ML20137P015
| ML20137P015 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/30/1986 |
| From: | Baxter T CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#186-947 OL, NUDOCS 8602040316 | |
| Download: ML20137P015 (27) | |
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recm C UNITED STATES OF AMERICA 9 FEB -319 NUCLEAR REGULATORY COMMISSION - I BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOA}RD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
APPLICANTS' SUPPLEMENTAL BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON ENVIRONMENTAL CONTENTIONS Thomas A. Baxter, P.C.
Alan D. Wasserman SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY Counsel for Applicants January 30, 1986 8602040316 060130 PDR ADOCK0500gO 5O
TABLE OF CONTENTS Page TABLE OF AUTHORITIES........................................ 11 I. INTRODUCTION............................................ 1 II. STATEMENT OF THE CASE................................... 2 III. ARGUMENT................................................ 5 A. The Licensing Board Did Not Err in Rejecting Eddleman Contention 12 in Light of the Decision in Grand Gulf, ALAB-130..................................... 5 B. Ocean Dumping of Low-Level Radioactive Commercial Reactor Waste was Regulated but Not Prohibited When the Licensing Board Rejected Eddleman Contention 12, and is Currently Regulated but not Strictly Prohibited........................................ 10 C. The Appeal Board Should Neither Reverse and Remand this Issue for Further Proceedings Nor Impose a License Condition Prohibiting the Ocean Dumping of Shearon Harris Low-Level Radioactive Waste................................. 14 IV. CONCLUSION............................................. 18
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TABLE OF AUTHORITIES
! Page(s) r CASES:
Carolina Environmental Study Group v. United States, 510 F.2d 796 (D.C. Cir. 1975)........................... 3 Carolina Power & Light Company (Shearon Harris
- Nuclear Power Plant),
LBP-82-119A, 16 N.R.C. 2069 (1982)................... 3,15 Memorandum and Order (Revision of and Schedule for Filing Written Testimony on Eddleman
- Contention 9; Rulings on Eddleman Contentions 45 and 67), July 24, 1984......................... 17 Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-247, 8 A.E.C. 936 (1974)................ 14 Gulf States Utilities Company (River Bend Station, j Units 1 and 2), ALAB-444, 6 N.R.C. 760 (1977)........... 8 Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542 (1980)................................................ 3,6 Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 N.R.C. 559 (1975).................................................. 6 Kleppe v. Sierra Club, 427 U.S. 390 (1976)................... 8 Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973),
cert. denied, 416 U.S. 961 (1974)....................... 3 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 A.E.C. 423 i
(1973)............................................ 5,6,8,9 Philadelphia Electric Company (Limerick Generating l Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681 (1985)................................................. 13 ,
Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13 (1974)...................................... 8
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 N.R.C. 167 (1976)........................... 8 Public Service Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 N.R.C. 14 (1979)...................................... 9 Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 N.R.C. 533 (1978).......... 14 Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 N.R.C. 702 (1978)................................................. 15 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.
1974)................................................... 9 STATUTES AND CONVENTIONS:
Atomic Energy Act, l 81, 42 U.S.C. $ 2111................... 10 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 26 U.S.T. 2403, T.I.A.S. No. 8165...................... 10,11 Low-Level Radioactive Waste Policy Amendments Act of 1085, Pub. L. No.99-240, Title II, 55 211, 223, 99 Stat. 1842, Jan. 15, 1986.............. 17 Marine Protection, Research and Sanctuaries Act of 1972, as amended, 33 U.S.C. 5 1401 et seg.............. 10 33 U.S.C. I 1411....................................... 11 33 U.S.C. $ 1412(a).................................... 11 33 U.S.C. $ 1414(h).................................... 12 i
33 U.S.C. I 1414(i).................................... 12 33 U.S.C. 5 1414(1)(1)................................. 12 33 U.S.C. $ 1416(a).................................... 15 Pub. L. No.97-424, Title IV, $ 424, 96 Stat.
2165, Jan. 6, 1983................................ 12 I
i National Environmental Policy Act, 42 U.S.C.
5 4321 et seg...................................... 7,9,13 42 U.S.C. $ 4332(2)(C)(i)............................... 8 REGULATIONS:
i 10 C.F.R. $ 2.714............................................ 7
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10 C.F.R. i 2.714(b)......................................... 3 10 C.F.R. 5 20.301(1982).................................... 10 10 C.F.R. 5 20.302(c)(1982)................................. 10 10 C.F.R. 5 20.302(b)(1983)................................. 10 10 C.F.R. 5 20.311........................................... 7 10 C.F.R. 5 51.52, Summary Table S-4, n.1.................... 7 10 C.F.R. Part 61............................................ 7 40 C.F.R. Part 222.......................................... 11 40 C.F.R. 55 227.4 - 227.13................................. 11 40 C.F.R. 5 227.7(b)........................................ 11 MISCELLANEOUS:
Proposed Rule: Standards for Protection Against Radiation; Republication, 51 Fed. Reg. 1092 (Jan. 9, 1986)................................... ..... 11 U.S. Atomic Energy Commission, Directorate of Regulatory Standards, Environmental Survey of Transportation of Radioactive Materials to and e from Nuclear Power Plants, WASH-1238 (Dec. 1972)........ 7 l
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January 30, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
APPLICANTS' SUPPLEMENTAL BRIEF IN REPLY TO INTERVENORS' APPEAL FROM THE PARTIAL INITIAL DECISION ON ENVIRONMENTAL CONTENTIONS I. INTRODUCTION Applicants submit this ". . . Supplemental Brief in Reply to Intervenors' Appeal from the Partial Initial Decision on En-vironmental Contentions" in compliance with the Atomic Safety and Licensing Appeal Board's unpublished Order of January 9, 1986.1/
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i 1/ On motion by the intervenors, the Appeal Board subse-quently extended the filing deadline for the ordered supplemen-tal briefs from January 27 to 30, 1986.
II. STATEMENT OF THE CASE One of the approximately 175 contentions initially pro-posed by intervenor Wells Eddleman was Contention 12, which states:
Applicants' FSAR, ER, the SER, and the ES do not properly include the environ-mental effects of dumping low-level radio-active wastes produced at SENPP into the ocean, which EPA has proposed a rulemaking to allow (1982). This issue is particular-ly relevant to SENPP as a special case be-cause the State of NC is not now a member of any radioactive waste disposal compact, has no land burial facility for low-level radioactive wastes, and thus may in 1986 (well within the operation period antici-pated for Harris 1 and 2) have no other alternative means of disposing of the low-level wastes produced by the Harris project, other than ocean disposal.
Supplement to Petition to Intervene by Wells Eddleman, pro se, at 61 (May 14, 1982).2/ Applicants and the NRC Staff opposed the admission of this contention.3/ The Licensing Board re-jected proposed Eddleman 12, holding that (as Applicants and the Staff had argued) there is no indication that ocean dumping is contemplated or that it is a probable consequence of the proposed action, and that a rule of reason applies in de-termining what environmental impacts should be considered.
2/ Mr. Eddleman has proposed hundreds of additional conten-tions since that time.
3/ Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman, at 52-53 (June 15, 1982); NRC Staff Response to Supplemental Statements of Contention by Pe-titioners to Intervene, at 22 (June 22, 1982).
Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 N.R.C. 2069, 2092 1,
(1982).
On appeal, Mr. Eddleman simply argued that the Licensing Board erred in rejecting his proposed Contention 12 because
". . . on its face it gives the Applicants and Staff fair no-tice of the issue to be litigated."4/ In reply, Applicants ar-gued that the decision in Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542 (1980), relied upon by Mr. Eddleman, does not stand 4 for the proposition that mere notice pleading meets the conten-tion basis requirement of 10 C.F.R. $ 2.714(b). Further, Applicants argued that whereas Allens Creek involved a proposed alternative to construction of the power plant, Mr. Eddleman i here asks that the NRC include as an environmental impact of facility operation the effects of an unplanned and highly im-probable activity. NEPA contemplates dealing only with circum-stances "as they exist and are likely to exist." Carolina
- Environmental Study Group v. United States, 510 F.2d 796, 801 i
l (D.C. Cir. 1975). Remote and speculative possibilities need not be explored. Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974).5/
i 4/ Appeal From Partial Initial Decision on Environmental Con-tentions, at 22 (April 9, 1985).
5/ Applicants' Brief in Reply to Intervenors' Appeal from the Partial Initial Decision on Environmental Contentions, at 31,
! (Continued next page)
Eddleman Contention 12 was not raised during the oral ar-gument of the environmental appeal, held on August 28, 1985.
In its January 9, 1986 Order, the Appeal Board directed the parties to file supplemental briefs on proposed Eddleman Con-tention 12, addressed to the following questions:
- 1) Did the Licensing Board in LBP-82-119A, 16 NRC 2069, 2092 (1982) err in rejecting Eddleman Contention 12 (con-cerning ocean dumping) in light of our de-cision in Mississippi Power and Light Co.
(Grand Gulf Nuclear Station, Units 1 and l 2), ALAB-130, 6 AEC 423, 425-26 (1973) -- a decision ignored by all parties in their briefs?
- 2) Did the Marine Protection, Re-search and Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq., any other statute, or any regulation (e.g., 40 C.F.R. !
Part 220), prohibit ocean dumping of low 4
level radioactive commercial reactor waste i at the time of the Licensing Board's rejec- l tion of Eddleman Contention 12 or does any statute or regulation currently prohibit j such dumping?
- 3) Assuming the first question is answered in the affirmative and both parts of the second question are answered in the negative, would our imposition of a condi-tion (prohibiting the ocean dumping of Shearon Harris low level radioactive waste) on any future Licensing Board authorization for an operating license alleviate the need to reverse and remand this issue for fur-ther proceedings?
(Continued) 37-38 (May 9, 1985). See also NRC Staff Brief in Reply to the Appeal of Joint Intervenors and Wells Eddleman of the Licensing Board's Partial Initial Decision on Environmental Matters, at 34-35 (May 24, 1985).
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III. ARGUMENT A. The Licensing Board Did Not Err in Rejecting Eddleman Contention 12 in Light of the Decision in Grand Gulf, ALAB-130 Applicants do not view the decision in Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-130, 6 A.E.C. 423 (1973), to apply to the situation at bar. In Grand Gulf, a construction permit proceeding, the applicant appealed from the Licensing Board's admission of a contention that geothermal sources had not been adequately con-sidered as an alternative to the proposed action. The appli-cant argued on appeal that its environmental report, as well as the Staff's draft environmental impact statement, represented that there were no known potential geothermal sites in the ser-vice area. The Staff argued that the intervention petitioner had neither buttressed its allegation that there are geothermal sources in the area nor indicated that the alleged sources would or could provide a feasible alternative to the Grand Gulf facility. 6 A.E.C. at 426.
Upholding the Licensing Board, the Appeal Board stated:
. . . [I]n passing upon the question as to whether an intervention petition should be granted, it is not the function of a li-censing board to reach the merits of any contention contained therein. Moreover,
, Section 2.714 does not require the petition to detail the evidence which will be effered in support of each contention. It is enough that, as here, the basis for the contention respecting the inadequacy of the consideration of alternatives to the con-struction of this plant is identified with reaLonable specificity.
Id.6/ Grand Gulf is extensively discussed in, and to a great extent is the parent of, Allens Creek, supra -- which all par-ties discussed in their briefs on appeal.
Eddleman Contention 12 does not advance, as in Grand Gulf, an alternative to the proposed action (operation of the Harris Plant) or aspect thereof which Mr. Eddleman prefers and asserts should be substituted as superior to the proposal on an envi-ronmental cost / benefit basis.7/ Rather, Eddleman Contention 12 alleges that the environmental review should consider, as an environmental impact of the proposed action, the effects of an activity which is not part of the proposal and which is not planned or anticipated. Grand Gulf does not reach this issue.
The clear thrust of Eddleman Contention 12 is that it would be environmentally undesirable to dump low-level radioac-tive waste from the Harris Plant into the ocean. Applicants do not propose to do so. Consequently, there is no legal basis for assessing the environmental impact of such an activity.
Grand Gulf, on the standards for admitting a contention on a proposed alternative, does not address the question of as-sessing the impact of an unproposed activity.
6/ Note, however, that contrary to the intervenors' arguments on appeal, the " notice pleading" allowed in the federal courts is insufficient in NRC licensing proceedings. Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1),
ALAB-279, 1 N.R.C. 559, 575 n. 32 (1975).
7/ In addition, the grant or denial of Mr. Eddleman's inter-vention petition did not hinge upon his Contention 12.
1 Applicants' Environmental Report and Final Safety Analysis Report describe a radioactive waste processing system which prepares low-level wastes for transportation to an off-site land disposal facility for burial. See ER $$ 3.5.2.2 (at p.
3.5.2-3), 3.5.4 (at p. 3.5.4-1), 3.5.4.1(g) (at p. 3.5.4-2),
3.5.4.2 (at p. 3.5.4-3); FSAR $$ 11.4.1.1(g) (at p. 11.4.1-2),
11.4.2 (at pp. 11.4.2-1,2). The Staff's review documents, issued after Mr. Eddleman proposed his Contention 12 in 1982, confirm the proposed action for low-level radwaste disposal.
See Staff Ex. 1 (the Final Environmental Statement) $$ 4.2.5 (at p. 4-9), 5.9.3.1.2 (at p. 5-31); Staff Ex. 4 (the Safety Evaluation Report) at 11-16.
Neither is this proposal by Applicants unique. The Com-mission's rulemaking on the " Environmental Impact of Transpor-tation of Fuel and Waste to and from One Light-Water-Cooled Nuclear Power Reactor" assumed the shipment of solid wastes to burial grounds.g/ The Commission also has in place an entire licensing scheme for the land disposal of radioactive waste.
See 10 C.F.R. Part 61 and $ 20.311.
i The pleading requirements of 10 C.F.R. $ 2.714 cannot be f
l read in isolation from the goals and requirements of the gov-I erning statute, NEPA. Under the plain terms of NEPA, in g/ See WASH-1238, " Environmental Survey of Transportation of l Radioactive Materials to and from Nuclear Power Plants,"
U.S.A.E.C. Directorate of Regulatory Standards (Dec. 1972),
cited in 10 C.F.R. $ 51.52 at Summary Table S-4 n.1, at 50.
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preparing an impact statement an agency is to address "the en-vironmental impact of the proposed action." 42 U.S.C. $
4332(2)(C)(i). The environmental assessment of a particular proposed Federal action may be confined to that action and its unavoidable consequences. Kleppe v. Sierra Club, 427 U.S. 390, 402, 407 (1976).
The Commission's Notice of Hearing invites consideration only of environmental matters relating to the proposed facility. Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 N.R.C.
167, 171 (1976). "At the very least, for purposes of interven-tion a petition must be adequate to show that it applies to the facility at bar and that there has been sufficient foundation assigned for it to warrant further exploration." Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 21 (1974). An intervenor must establish a nexus between the matters which he seeks to liti-gate and the ultimate environmental determinations which must be made in order to authorize the licensing of the reactor for operation. Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-444, 6 N.R.C. 760, 774 (1977).
The issue raised by Eddleman Contention 12 is neither whether a theoretically possible, but remote impact of the pro-posed action has been ignored,9/ nor, as in Grand Gulf, whether 9/ As the Appeal Board stated:
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l an allegedly superior alternative to the proposed action has been shortchanged. Impacts of the proposed action and poten-tially superior alternatives must be assessed under NEPA's man-dated scheme of cost / benefit decision-making. In contrast, here Mr. Eddleman seeks to change an element of the proposed action and substitute his own allegedly inferior proposal.10/
This would subvert NEPA, and such a contention cannot be as-sessed on the same scale as those which address NEPA require-ments.
Addressing the actual proposed action, the Licensing Board correctly applied these principles in rejecting Eddleman 12.
Grand Gulf does not compel a contrary result.
(Continued)
An EIS need not discuss remote and highly speculative consequences. . . . A reason-ably thorough discussion of the significant aspects of the probable environmental con-sequences is all that is required by an EIS.
Public Service Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 N.R.C. 14, 38-39 (1979),
quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974).
10/ By analogy, one could contend that an impact statement on a federal highway project should include the impact of devas-tated forests because wooden planks might be used if the supply of asphalt were depleted.
B. Ocean Dumping of Low-Level Radioactive Commercial Reactor Waste was Regulated but Not Prohibited When the Licensing Board Rejected Eddleman Contention 12, and is Currently Regulated but not Strictly Prohibited Ocean dumping of low-level radioactive waste is regulated by the Environmental Protection Agency (" EPA") pursuant to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (" Ocean Dumping Convention"), 26 U.S.T.
2403, T.I.A.S. No. 8165 and the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 33 U.S.C. $ 1401 et seq.
(" Marine Protection Act"), and is regulated by the Nuclear Reg-ulatory Commission pursuant to Section 81 of the Atomic Energy Act (42 U.S.C. $ 2111).
Eddleman Contention 12 was rejected by the Licensing Board on September 22, 1982. At that time, ocean dumping of low-level radioactive wastes was regulated pursuant to the au-thorities noted previously, but was not strictly prohibited.
Under NRC's regulatory authority, a license would have been re-quired to dispose of " licensed material" (which would have in-cluded low-level radioactive waste that would have been pro-duced at Shearon Harris) and the NRC would not have approved any application for a license for disposal of licensed material at sea unless the applicant showed that " sea disposal offers
,less harm to man or the environment than other practical alter-natives." 10 C.F.R. $$ 20.301, 20.302(c)(1982).11/ The Ocean 11/ The provision on disposal at sea was subsequently recodified in 10 C.F.R. $ 20.302(b)(1983). Recently proposed (Continued next page)
Dumping Convention, which has been in force since the 1970s, strictly prohibits disposal of high-level radioactive waste at sea and permits the dumping of low-level radioactive waste only when a prior special permit has been issued by the appropriate nation. See Article IV and Annexes I and II, 26 U.S.T. at 2408, 2465 and 2466. The Marine Protection Act also prohibits dumping of high-level waste and, at the time of the Licensing Board decision, would have prohibited dumping of low-level waste except as authorized by an EPA permit. 33 U.S.C.
$ 1411.12/
1 (Continued) amendments to 10 C.F.R. Part 20 would delete this provision.
"The deletion reflects the mandate of the 1972 Marine Protec-tion, Research, and Sanctuary Act (Pub. L.92-352) which trans-ferred responsibility for regulating the ocean disposal of ra-dioactive wastes from the NRC to EPA." 51 Fed. Reg. 1092, 1116 (Jan. 9, 1986).
12/ Pursuant to Section 102(a) of the Marine Protection Act (33 U.S.C. $ 1412(a)), the EPA may issue a permit only after a hearing and a determination that the proposed dumping "will not unreasonably degrade human health, welfare, or amenities, or the marine environment, ecological systems, or economic poten-tialities".
The EPA's implementing regulations require the satisfac-tion of environmental impact criteria as a prerequisite to ap-proval. Satisfaction is determined by waste-specific bioassay and bioaccumulation tests. 40 C.F.R. $$ 227.4 - 227.13.
Low-level radioactive waste must be containerized. 40 C.F.R.
$ 227.7(b). Information is provided in the permit application and a hearing is held for a determination concerning whether the criteria are satisfied and whether the proposed dumping meets the statutory standard concerning degradation of the en-vironment. 40 C.F.R. Part 222.
This regulatory scheme has remained substantially unchanged at all times relevant to the discussion.
Only four months after the Licensing Board's decision, the Marine Protection Act was amended. Pub. L. No.97-424, Title IV, 5 424, 96 Stat. 2165, Jan. 6, 1983. The amendments imposed a two-year moratorium on the dumping of low-level radioactive waste (except for certain authorized research activities) and provided that after the moratorium, permits to dispose of low-level waste at sea could only be issued if: (1) a special environmental assessment was submitted by the applicant, (2) the EPA determined that a permit should issue and recommends issuance to Congrees, and (3) Congress votes to approve the permit within 90 days of recommendation. 33 U.S.C. 55 1414(h),
1414(i).13/ The moratorium was lifted on January 6, 1985, but the special requirements that must be met to obtain authoriza-tion for disposal of low-level radioactive waste at sea remain in force. Accordingly, it is presently theoretically possible to obtain a permit for ocean disposal for low-level radioactive waste. However, as a practical matter, it would be exceedingly difficult to obtain the required authorizations in light of the political sensitivity of the issue, the rigorousness of the 13/ The special environmental assessment required by statute is called a " Radioactive Material Disposal Impact Statement" (RMDIS). 33 U.S.C. 5 1414(i). The RMDIS must include, among other things, an analysis of the environmental impact of the proposed action, an analysis of conditions vpon failure of the waste containers, a plan for removal or containment of disposed waste if a container leaks or decomposes, and a comprehensive monitoring plan for the disposal site. 33 U.S.C. 5 1414(1)(1).
The applicant for the permit must comply with all of the other requirements of the Marine Protection Act and implementing reg-ulations in addition to submitting the RMDIS.
permitting standards, and the need for Congressional approv-al.14/
Moreover, Applicants reject any suggestion that an unplanned activity should be assessed as an environmental im-pact of a proposed action on the sole ground that the unplanned activity is not legally prohibited. Impact statements so bur-dened could quickly become so unrelated to the actual proposed activity that they would lose their significance for decision-making and thwart the very purpose of NEPA. See Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 703 (1985) (the inclu-sion of hypothetical costs may diminish the true worth of the FES in the decision-making proaess).
14/ To Applicants' knowledge, since the moratorium was lifted EPA has not approved any ocean disposal sites and no permits have been sought for ocean disposal of low-level radwaste.
C. The Appeal Board Should Neither Reverse and Remand this Issue for Further Proceedings Nor Impose a License Condition Prohibiting the Ocean Dumping of Shearon Harris Low-Level Radioactive Waste Since Applicants answered the Appeal Board's first ques-tion in the negative, a response to the third question is not required. Nevertheless, Applicants will address the third question in recognition of the possibility that the Appeal Board might not agree with Applicants' response to the first question.
The NPC is empowered to impose license conditions designed to ameliorate the environmental impact of proposed action.
Detroit Edison Company (Greenwood Energy Center, Units 2 and 3), ALAB-247, 8 A.E.C. 936, 943-45 (1974); Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 N.R.C. 533, 539 (1978). Since the proposed action here in-cludes the disposal of low-level radioactive waste in a land burial facility, a specific condition prohibiting ocean dumping of such waste is not necessary.
Beyond the fact that a specific license condition is un-necessary, the Appeal Board may not impose a license condition
-- without Applicants' consentl5/ -- in the absence of an l
15/ Applicants' unwillingness to consent to a license condi-tion is not founded upon any expectation that ocean dumping of low-level radwaste from Harris will ever be a desirable or achievable option, but upon our conviction that the license should not be freighted with unnecesary prohibitions founded on the slim basis that the activity is not illegal.
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opportunity for Applicants to contest the necessity for such a condition. Further, there is some question as to whether the NRC should or could regulate in the field of ocean dumping where Congress, in the Marine Protection Act, vested exclusive regulatory authority in the Environmental Protection Agency.
See 33 U.S.C. i 1416(a) and Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 N.R.C. 702 (1978).
If the Appeal Board concludes that the Licensing Board erred in rejecting Eddleman Contention 12, reversal and remand are not the inevitable result in the absence of a prohibitory license condition. Rather, any error should now be deemed to be harmless, requiring no corrective action.
If Eddleman Contention 12 had been /<lmitted in 1982, or if it were admitted now on remand, the litigation would not focus upon the environmental impacts of ocean dumping low-level radweste unless and until the Licensing Board determined that
- resort to ocean dumping was likely because Applicants' planned i
land burial of the wastes could not be accomplished. This premise in Eddleman Contention 12 has already been substan-tively decided in this proceeding.
In 1982, the Licensing Board admitted as a safety issue l Mr. Eddleman's assertion that inadequate provision had been
- made for low-level waste disposal. LBP-82-119A, supra, 16 N.R.C. at 2102 (Eddleman 67). Eddleman Contention 67 precisely parallels, in a safety context, the environmental Contention l
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- 12. It cites the absence of an assured land disposal site for low-level radioactive wastes. Eddleman 67 states:
There is no assured disposal site to isolate the low-level radioactive wastes produced by normal operation at Harris from the environment and the public until said waste, which includes highly toxic (ra-diotoxic) and long-lived nuclear wastes such as Sr-90, Cs-137 and Pu-239, has de-cayed to virtually zero levels of ra-dioactivity and radiotoxicity. The lack of such an assured disposal site, endangers the health and safety of the public under AEA and this condition Paving changed since the CP stage (and CP FES) due to the refus-al of SC, NV and WA states to continue to accept unlimited amounts of low-level ra-dioactive wastes; and by the enactment by Congress of laws allowing states to form compacts for low-level rad-waste disposal and to exclude wastes such as SHNPP low-level radioactive wastes from states not members of such compacts. Sea disposal is not assured because EPA's proposed rule to allow disposal of low-level radioactive wastes in the oceans has not been enacted, and if enacted may be overturned by legal action or act of Congress.
After discovery, Eddleman Contention 67 was decided in Applicants' favor by summary disposition. In its ruling, the
- Licensing Board summarized the dispute over the long-term dis-
! posal of Harris low-level radwaste as follows:
Mr. Eddleman's response takes the pos-ture that much of the Applicants' and Staff's filings are " irrelevant because the Southeast Low-Level Radioactive Waste Com-pact has not yet been approved by Con-gress." He asserts that " progress as they allege is not assurance," implying that
" assurance" means actual certainty. The Board cannot agree with Mr. Eddleman. The Applicants' and Staff's filings demonstrate that the development of a Southeast Compact has been proceeding in an orderly manner and this progress has reached the point
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where approval by the Congress is the only remaining step. The record before us does not cast any doubt that Congressional ap-proval will be forthcoming. In the unlike-ly event that Congress were not to approve the Compact, the State of North Carolina is also taking steps toward provision of a waste disposal site in that State. In these circumstances, the Board's view is that there is reasonable assurance that adequate long-term disposal capacity for the Harris' low-level waste will be avail-able when it is needed.
Memorandum and Order (Revision of and Schedule for Filing Writ-ten Testimony on Eddleman Contention 9; Rulings on Eddleman Contentions 45 and 67) at 5 (July 24, 1984). Mr. Eddleman did not appeal the Licensing Board's decision on his Contention 67.16/ Congress approved the Southeast Compact in the Low-Level Radioactive Waste Policy Amendments Act of 1985.
Pub. L. No.99-240, Title II, $5 211, 223, 99 Stat. 1842, Jan.
15, 1986.
Consequently, a remand of Eddleman 12 would serve no pur-pose. The premise of the contention has been rejected on the merits through Eddleman 67 -- in a decision Mr. Eddleman chose not to appeal. On remand, the Licensing Board would simply cite its decision on Contention 67 and conclude that the envi-ronmental review properly did not consider the impacts of sea disposal of low-level radwaste because resort to that unproposed activity is not foreseeable.17/
16/ See Appeal from Partial Initial Decision on Management Ca-pability and Safety Contentions, dated October 8, 1985.
12/ Procedurally, the Licensing Board could also have deferred its ruling on Contention 12 pending the outcome on Contention (Continued next page)
1 IV. CONCLUSION The Licensing Board correctly rejected proposed Eddleman Contention 12. If the Appeal-Board disagrees, it should con-clude that any error is harmless, requiring no remand or other corrective action.
Respectfully submitted, m .
Thomas A. Baxter, P.C.
Alan D. Wasserman SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 ,
Counsel for Applicants Dated: January 30, 1986 (Continued) 67, since environmental contentions were decided prior to safe-
[ ty contentions. The propriety of the course followed by the i
Licensing Board is an academic question, however. If Mr.
! Eddleman had prevailed on the merits of Contention 67, he could l have moved for reconsideration of the rejection of Contention
! 12.
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l s\I January 3_0',k1986 l[?f, i
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,NI N.S UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD tb 'I kE I'N In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear )
Power Plant) )
NOTICE OF APPEARANCE The undersigned, being an attorney at law in good standing admitted to practice before the courts of the District of Columbia, hereby enters his appearance as counsel on behalf of applicants Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency in proceedings related to the above-captioned matter.
Respectfully submitted, W l Alan D. Wasserman l SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 ,
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January 30, 1986 UNITED STATES OF AMERICA M '
NUCLEAR REGULATORY COMMISSION s ,- S
- 3) , ~2D ,
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL' yv BOARD;0 3'gg6EU" N
\ :'-
,;c'~rS???L,z hy In the Matter of )
) M S~ b.T [x CAROLINA POWER & LIGHT COMPANY ) 'd[f~y{[k\
and NORTH CAROLINA EASTERN ) Docket No. 50-406'OF MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Supplemental Brief In Reply To Intervenors' Appeal From The Partial Initial Decision On Environmental Contentions" and " Notice of Appear-ance" were served this 30th day of January, 1986, by deposit in the U.S. mail, first class, postage prepaid, to the parties on the attached Service List.
I h -
l Thomas A. Baxter, P.C.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL and NORTH CAROLINA EASTERN )
MUNICIPAL POWER AGENCY )
)
(Shearon Barris Nuclear Power )
Plant) )
SERVICE LIST Thomas S. Moore, Esquire Charles A. Barth, Esquire Chairman Janice E. Moore, Esquire Atomic Safety and Licensing Office of Executive Legal Directo:
Appeal Board U.S. Nuclear Regulator'y Commissio U.S. Nuclear Regulatory Commmission Washington, D.C. 20555 ,
Washington, D.C. 20555 Docketing and Service Section Dr. Reginald L. Gotchy Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commissior Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Daniel F. Road, President CHANGE Mr. Howard A. Wilber P.O. Box 2151 At'omic Safety and Licensing Raleigh, North Carolina 27602 Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John D. Runkle, Esquire Conservation Council of James L. Kelley, Esquire No th Carolina A om Safety and Licensing Board Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 M. Travis Payne, Esquire Edelstein and Payne Mr. Glenn O. Bright P.O. Box 12607 Atomic Safety and Licensing Board Raleigh, North Carolina 27605 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard D. Wilson 729 Hunter Street Dr. James R. Carpenter Apex, North Carolina 27502 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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f Mr. Wells Eddleman 806 Parker Street Durham, NC 27701 Richard E. Jones, Esquire Vice President and Senior Counsel Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 Dr. Linda W. Little Governor's Waste Management Board 513 Albemarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 Raleigh, North Carolina 27602 H. A. Cole, Jr., Esquire Special Deputy Attorney General 200 New Bern Avenue Raleigh, North Carolina 27601 l
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