ML20148D466

Licensee Objection to Special Prehearing Conference Order.* Board Requested to Clarify 880105 Order Consistent W/ Discussed Description of Board Jurisdiction & Scope of Proceeding.W/Certificate of Svc

ML20148D466
Person / Time
Site:	Three Mile Island
Issue date:	01/19/1988
From:	Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#188-5388 OLA, NUDOCS 8801250396
Download: ML20148D466 (12)

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January 19, 1988 18 Ju 21 41 :39 s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f0' Ci abeh-euw. .

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD k f

a In the Matter of )

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GPU Nuclear Corporation ) Docket No. 50-320-OLA ,

) (Disposal of Accident-(Three Mile Island Nuclear ) Generated Water)

Station, Unit 2) )

LICENSEE'S OBJECTION TO SPECIAL l PREHEARING CONFERENCE ORDER l t

I. Introduction P

On January 6, 1988, the Licensing Board's "Memorandum and ,

l Order (Memorializing Special Prehearing Conference; Ruling on contentions; Scheduling)," dated January 5, 1988, was served upon the parties. The Memorandum and Order constitute a special prehearing conference order issued under 10 C.F.R. 5 2.751a(d).

Pursuant to that regulation, Licensee files this objection to the  :

order.1/ r 1/ Section 2.751a(d) provides that "(t]he filing of objections  !

shall not stay the decision unless the presiding officer so or- t ders." Licensee does not seek a stey of the order. To the con- t trary, it is critical to the THI-2 cleanup program that the ac-f tivities launched by the Board's order proceed as scheduled, 8801250396 890119 1h O' I gDR ADOCK 0 go j

D Licensee does not ask the Board to reverse its rulings on the admissibility of contentions. Rather, Licensee's objection goes to statements in the Memorandum and Order which reflect the Board's view of its jurisdiction, the scope of the proceeding and the Board's role vis-a-vis the Staff and the Commission. Because the scope of evidentiary presentations could be affected, it is important to establish promptly a uniform understanding of the scope of the adjudication.

Referring to a December 29, 1987 letter from Staff cc..nsel, the Board states:

For some reason, the Staff apparently be-lieves that the Commission only authorized this Board to consider whether or not the prohibition in the technical specifications against disposal of AGW should be deleted, and that, once the deletion of the prohibi-tion has been authorized and after the Staff has reviewed the (as yet to be sub-mitted) specific design system for the evaporator, the Staff on its own vill de-termine whether that specific design sys-tems's anticipated environmental impacts fall within the scope of those estimated in the PEIS, Supplement No. 2. We disagree.

Had the Commission intended to restrict our jurisdiction in any manner it would have so stated and it would not have issued a No-tice of Opportunity For A Prior Hearing (emphasis added.) Thus we conclude that during the adjudicatory process it must be

established on the record before us that the cost benefit analysis for the design system of the proposed evaporator meets the ALARA standard.

Memorandum and Order at 6 n.4.

Licer:ca objects to this holding by the Licensing Board.

As explained more fully below, it is Licensee's position that I

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in any operating license amendment proceeding, the presiding board's role generally is to decide the matters in controversy, while the Staff raakes the remainder of the requisite findings and takes the licensing action. Second, in this particular proceeding, deciding the contentions is not the equivalent of deciding the license amendment request, which in turn is not the equivalent of approving or rejecting Licensee's proposal, II. The Licensing Board's Role is to Decide the Matters in Controversy In the footnote quoted above, the Board appears to require the presentation of evidence on an asserted contention basis rejected by the Board earlier in the same footnote. In the text of its ruling on Contention 1, the Board ruled that the asserted basis it accepted is Joint Petitioners' allegation "that the ALARA principle has not been complied with because the selected open cycle evaporation method would release all of the tritium and a quantity of the radionuclides whereas other methods would not release all the radioactivity." Memorandum and Order at 7. In apparent contrast, the Board in its foot-note calls for a showing that a "cost benefit analysis for the design system of the proposed evaporator meets the ALARA stan-dard." Id. at 6 n.4. This evidence would not be required to meet the contention accepted by the Board, and thus would seem to be directed at an uncontested matter.

The Commission's regulations provide that in a contested proceeding on an application for an operating license, matters not put into controversy by the parties will be examined and decided by the Licensing Board only where it determines that a serious safety, environmental, or common defense and security matter exists. The Staff, depending on the resolution of those matters, then makes the requisite findings and issues, denies or appropriately conditions the license. 10 C.F.R. 5 2.760a.

If a Licensing Board invokes its section 2.760a sua sponte au-thority, it must set forth such a determination in a separate order with findings and reasons, and the Commission itself then reviews the determination and decides if the sua sponte issue should remain in the proceeding. Texas Utilities Generatino Co. (Comanche Peak Steam Electric Station, Units 1 and 2),

CLI-81-24, 14 N.R.C. 614, 615 (1981); id., CLI-81-36, 14 N.R.C.

1111 (1981).

While section 2.760a does not expressly refer to operating license amendment proceedings, the regulation clearly should be applied to amendment cases. When the Commission adopted sec-tion 2.760a in 1972, it explained that, in contrast to the con-struction permit stage, at the operating license stage a hear-ing is required only upon the request of a person whose interest may be affected. 37 Fed. Reg. 15127, 15128-29 (1972).

The same is true for an operating license amendment proceeding.

It is completely different from a construction permit

6 proceeding, where a hearing is mandated and all findings requi-site to licensing are made through the adjudicatory process.

Licensee's review of amendment decisions reveals no instance of a licensing board going beyond the contentions to address cther matters encompassed by the amendment request.

Licensee's position appears to be consistent with the Ap-peal Board's reasoning in Vermont Yankee Nuclear Power Corp.

(Vermont Yankee Nuclear Power Station), ALAB-869, 26 N.R.C.

(July 21, 1987). The Appeal Board noted it is not clear wheth-er section 2.760a authorizes a board to exercise sua sponte au-thority in an operating license amendment proceeding.

ALAB-869, supra, slip op. at 14. But see Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 N.R.C. 335, 339 n.6 (1983). While the Appeal Board is si-lent on the question of whether the limitation in section 2.760a applies, it appears to assume that it does. Certainly, if the board were authorized to decide all issues associated with the amendment, it would not be necessary even to think about whether sua sponte authority existed to decide matters not in controversy.

It follows that if the Licensing Board, in the absence of Commission-approved sua sponte determinations, is to decide only the matters in controversy, it is the NRC Staff which makes the remaining findings requisite to the licensing deter-mination on the amendment request. Thus, even if approval of

k the amendment request required approval of Licensee's evapora-tion proposal (a proposition we challenge below), the Board is not in a position to approve or reject the proposal, a decision which requires a consideration of matters outside of the con-tentions.

III. The Scope of the Proceeding is Limited to the License Amendment Recuest As stated by the Commission in its Notice of Coportunity for Prior Hearing, the Commission is considering issuance of an amendment to the TMI-2 operating license which "would delete the current prohibition on disposal of accident-generated water imposed by Technical Specifications 1.17, 3.9.13 and 3/4.9.13."

52 Fed. Reg. 28626 (1987). The Ccmmission further stated that

"(c]ontentions shall be limited to matters within the scope of the amendment under consideration." Id. at 28627. The Commis-sion also reiterated its 1981 policy that "any future proposal for disposition of the accident-generated water shall be re-ferred to the Commission for approval."

The question of whether or not the current prohibition should be removed requires an assessment of whether or not one or more acceptable disposal methods exist. Which wrticular disposal method will be used is *.he decision which the Commis-sion will make, taking into account the Board's findings on the contentions and the Staff's findings in the PEIS.2/ It is not 2/ NUREG-0683, supp. No. 2 (June 1987).

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the Board's job to approve or disapprove of Licensee's propos-al, but rather to decide the contentions relevant to the amend-ment' request. This is not a restriction on the Board's jurisdiction. See Memorandum and Order at 6 n.4. Rather it is the required reading of the Commission's notice and regula-tions.d/

As Licensee argued in response to Contention 4, the Com-mission, with the aid of any findings which emanate from this Board, will approve a disposal method in principle and will then grant the Staff authority to amend the license to allow disposal of the water. Once the prohibition is removed, the license will still include a provision stating that "ACCIDENT GENERATED WATER shall be discharged in accordance with NRC-approved procedures." "Once the license is amended to re-move the prohibition against disposal of the accident-generated water, the licensee will submit a safety evaluation report and specify the particular engineering and monitoring details of the approved method." NUREG-0683, Supp. No. 2 at 7.2. 'See "Licensee's Response to Supplement to Petition for Leave to Intervene by SVA and TMIA," November 12, 1987, at 26 n.8.

2/ The Board could decide one or more contentions negative to Licensee's evaporator proposal, while the Commission could still dpprove the proposal based upon factors not considered via the contentions.

1/ If the Licensing Board's function is to approve a particular disposal method, Licensee could find itself facing a series of l

hearings, each exploring in some detail a new proposal until one l

endorsed by the Board is found.

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's Detailed system design information for the proposed dis-posal method is not required in order to decide whether or not to remove the prohibition on disposal (i.e., to decide the license amendment request). Thus, contrary to the view ex-pressed by the Board in its footnote 4, such information is not required in order to decide relevant contentions. To hold otherwise would be to require Licensee to purchase and proceed with an evaporator system when the NRC has not yet even decided to authorize disposal, let alone approved a method.E# Admit-tedly, this is unlike the situation in an operating license proceeding where a detailed FSAR is available. However, in this case there is nothing comparable to a construction permit, representing regulatory approval for the basics of the project.

It may be useful at this juncture to review briefly the genesis of Licensee's proposal. In its July 31, 1980 report to the NRC on Disposal of Processed Water, GPU Nuclear stated, at page 77:

On the basis of overall technical merit, analysis indicates that the con-trolled discharge of the processed, diluted water to the Susquehanna River is the sim-plest, least costly option and involves in-significant environmental impact, as do the competing options. However, GPU Nuclear has opted not to recommend discharge to the river in recognition of an existing public percept.'on that unique health risks are associated with this disposal option.

1/ It is irrelevant that Licensee may of its own volition de-cide, because of the delays in NRC decision-making, to assume the economic risks and proceed with a contract for an evaporator sys-tem.

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GPU Nuclear agrees with the Staff's conclusion in the PEIS that there were a number of acceptable disposal options, and that continued storage of the water on site is not a responsible alternative. After considering the technical merits of several options, as well as public, institutional and political con-cerns, in 1986 GPU Nuclear selected evaporation as the pre-ferred option for disposal of TMI-2 vater, even though dis-charge to the river would be acceptable under the regulatory requirements imposed at Three Mile Island and at other nuclear power plant sites. We did not then harbor a special attachment to evaporators. Rather, GPU Nuclear simply made that choice in an attempt to get on with the cleanup job. Ironically, the Company's responsiveness to public opinion has not served to avoid protracted public debate and decision-making, but has led to full hearings with the Company in the position of defending not the technically best disposal option (river discharge), but the option perceived as being responsive to public opinion.

With this delay the Company has made an increasing commitment of resources to the evaporation method in order to mitigate schedule delays.

In short, the Commission's notice and regulations, as well as its policy establishing its own peculiar decision-making role in this instance, lead to the conclusion that it is the Licensing Board's role to decide the contentions, the Commis-sion's role to approve a disposal method in principle,E/ and 1/ It is expected that if a hearing had not been requested, the Commission would have proceeded to make this decision on the (Continued next page) 4

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the-Staff's role to take the licensing action and subsequently review and approve the details of the disposal option adopted.

While deciding the admitted contentions certainly entails con-sideration of Licensee's evaporator proposal, it does not re-quire information the Staff would subsequently need to approve the design and procedures for the disposal method' adopted.

IV. Conclusion Licensee respectfully requests that the Board clarify its special prehearing conference order ;cnsistent with the above description of the Board's jurisdiction and the scope of the proceeding.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE L A. L%

Thomas A. Baxter, P.C.

Ernest L. Blake, Jr., P.C.

Counsel for Licensee 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 l

Dated: January 19, 1988 (Continued) l basis of the information contained in the Staff's PEIS, and not l on the basis of more detailed, system-specific design in-formation.

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b January 19, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GPU Nuclear Corporation ) Docket No. 50-320-OLA

) (Disposal of Accident-(Three Mile Island Nuclear ) Generated Water)

Station,. Unit 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Licensee's Objection to Special Prehearing Conference Order" were served this 19th day of January, 1988, by U.S. mail, first class, post-age prepaid, upon the parties identified on the attached Service List.

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Thomas A. Baxter, P.C.

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U3NiiC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'E6 JW 21 M139 BEFORE THE ATOMIC SAFETY AND LICENSING BOhh7IngNify$t, BRANCH In the Matter of )

)

GPU Nuclear Corporation ) Docket No. 50-320-OLA

) (Disposal of Accident-

-(Three Mile Island Nuclear ) Generated Water)

Station, Unit 2) )

SERVICE LIST Sheldon J. Wolfe, Esquire John F. McKinstry, Esquire Atomic Safety and Licensing Department of Environmental Board Panel Resources U.S. Nuclear Regulatory Commonwealth of Pennsylvania Commission 505 Executive House Washington, D.C. 20555 Harrisburg, Pennsylvania 1712 Mr. Glenn O. Bright Ms. Frances Skolnick Atomic Safety and Licensing 2079 New Danville Pike Board Panel Lancaster, Pennsylvania 17603 U.S. Nuclear Regulatory Commission Ms. Vera L. Stuchinski Washington, D.C. 20555 315 Peffer Street Harrisburg, Pennsylvania 1710 Dr. Oscar H. Paris Atomic Safety and Licensing Dr. William D. Travers Board Panel Director, Three Mile Island U.S. Nuclear Regulatory Cleanup Project Directora Commission P.O. Box 311 Washington, D.C. 20555 Middletown, Pennsylvania 1705 Stephen H. Lewis, Esquire Colleen P. Woodhead, Esquire Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Services Branch Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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