ML19261C629
| ML19261C629 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/02/1979 |
| From: | Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE |
| To: | |
| References | |
| NUDOCS 7903260170 | |
| Download: ML19261C629 (11) | |
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before the ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF NEW
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Docket Nos. 50-443 HAMPSHIRE, et al.
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50-444
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(Seabrook Station, Units 1 & 2)
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ON HEARING ON REMAND FROM THE COMMISSION PERMITTEES' BRIEF WITH RESPECT TO NRC STAFF PROPOSED APPEAL BOARD DECISION ON THE ISSUE OF ALTERNATE SITES IN THE EVENT COOLING TOWERS WERE REQUlitED AT SEABROOK INTRODUCTIOM Farsuant to the order of the Appeal Board entered upon the record of this proceeding, Tr. 612-13, the NRC Staff has filed a proposed Appeal Board decision in this matter.
The permittees in this case fully support the ultimate findings, rulings and' conclusions set out in the Staff's proposed deci-elon and by and large urge its adoption in toto by the Appeal 790326 O I 7 O
Board.
However, the permittees do object to two specific findings which the Staff seeks to have incorporated into the Appeal Board decision and also suggest the addition of certain findings.
Briefly, for the reasons set forth in Parts I and II below, the permittees object to the finding that it is reasonable to assume that in the event Seabrook is required to have a closed-cycle cooling system, Phillips Cove could still be licensed as an "open-cycle" site and to the finding that assuming Phillips Cove to be open cycle it is environ-mentally marginally superior to Seabrook closed cycle.
In addition, permittees believe, for the reason _ set forth in Part III that the Appeal Board should find Phillips Cove to be a non-viable alternative
- in light of state law and zoning ordinances.
ARGUMENT I.
IT IS NOT REASONABLE TO ASSUME THAT TF F1ABR00K IS ORDERED TO EMPLOY CLOSED-CYCLE COOLING, PHILLIPS COVE WILL NOT BE The Staff requests the Appeal Board to find that it is reasonable to assume that Phillips Cove could be licensed as
- For one analysis of the distinction between viable and non-viable alternatives see, McCarthy & E11 patrick A Political Bestiary, Viable alternatives, Impressive Maraates and Other Fables, McGraw Hill at 16-19 (l'976) reproduced as Appendix A hereto.
an open-cycle site even if closed-cycle cooling was required for the Seabrook site.
Staff Prop. Dec. at 49 et seq.
We reepectfully suggest that such a finding cannot be made on this record.
The Staff argues as a basis for such a conclu-sion the existence of "a reasonable aqaatic biological basis" for such a distinction."
Id. at 49.
However, the Staff ignores the fact that the only way Seabrook can be ordered to closed-cycle cooling is if EPA so decides, and the Staff has made no effort to sound out EPA on whether it deems the two sites to be so different.
Tr. 312, 319 The Staff also ignores the fact that the Staff's own witnesses acknowledge that one cannot be sure that even the assumed biological basis for the distinc-tion is sound absent intensive and detailed site Specific studies at Phillips Cove.
Staff Direct at F-4, F-12, F-18; Tr. 332-35.
In these circumstances when an assertion is made that there is a " reasonable basis" for assuming Phillips Cove can be "open" while Eeabrook is " closed", one is driven to ask:
" Reasonable to whom?"
It may be reasonable to a Staff biolo-gist or even NRC as a whole, but does that make it reasonable
- The " reasonable biological. basis" comes down to the data which appears in the four figures beginning on Page A-17 showing " relative density" of clam larvae.
See Tr. 337 Z
These figures were prepared by the Staff from NAI Technical Report VI-10 (see Staff Direct at A-16 referencing Footnote 15 which refers, on Page A-29, the reader to NAI-VI-10) which Staff describes as sampling done "during August 1975".
The report has data from sampling done on two specific F.ates in August 1975 to the enief executive of a utility which is going to bet millions of dollars on the issue.
We suggest that no rational utility executive could plan on the basis that he could obtain different cooling system results at Seabrook and Phillips Cove based on this record.
The stakes are too high.
If one knew that Seabrook had to be closed cycle, one could not move forward at Phillips Cove on the basis that a different result would obtain there."
If Seabrook w.f.s ordered closed, the permittees, in order to go to Phillips Cove open cycle would have to bet millions of dollars in the form of new engineering and appli-cation costs to refile before NRC.**
It is not a reasonable bot in the circumstances; thus, the Staff's assumption, in the context presented, is not reasonable.
II.
EVEN ASSUMING THE STAFF'S ASSUMPTION THAT PHILLIPS COVE COULD BE OPEN CYCLE, THAT SITE STILL IS NOT ENVIRONMENTALLY MARGINALLY SUPERIOR TO SEABROOK CLOSED CYCLE When all is said and done, and as is candidly acknowledged by the Staff, Staff Prop. Dec. at 53, 51-52, see also Tr. 354, 357-58, the only real basis for a holding that Phillips Cove
- This is not to say that a different result would not in fact upon close study obtain; we are simply pointing out that the odds are too long to make the substantial tot given the large stakes involved.
- The Commission has recognized this reality.
Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2),
CLI-77-8, 5 NRC 503, 331 (1977',.
open is marginally superior to Seabrook closed is grounded on aesthetics.
Staff discounts the aesthetic advantage created by the absence cf towers by the "important counter-valling factor" of longer transmission lines for Phillips Cove.
2d. at 52.
It is not clear whether or not Staff, in its proposed decision, is factoring in the greater aesthetic impact of the additional transmission as well as the other impacts.
It is clear that the Staff witnesses :nade no such effort.
Tr. 376.
Nor did the Staff credit Seabrook with the fact that it was replacing s couple of dumps, FES at 2-3, in its analysis, Tr. 360-62, although Staff agreed that it would be legitimate in an aesthetic analysis to consider what was Jeing replaced, Tr. 362-63 More to the point, we respectfully suggest the time is long overdue to commit " aesthetics" to the wastebasket inso-far as environmental analysis of nuclear power plants is con-cerned.
The whole area is simply too subjective to be the legitimate object of adversary adjudicatory inquiry.
Just as one man's religion is another's sacrilege, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 530 (1952) (Frankfurter, J~.,
concurring), so is one man's obscenity another man's art.
The business of deciding which of two different nuclear intrusions into the landscape is more aesthetically pleasing is not a business for NRC to be in.
And the " aesthetic" issue presented here makes this clear.
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III.
THE PHILLIPS COVE SITE CANNOT BE DETERMINED TO BE A VIABLE ALTERNATIVE DUE TO STATE LAW AND ZONING MATTERS Introduction What the so-called alternative sites issue is all about, it must be remembered, is whether there exists an alternative that is (1) available, (2) anvironmentally preferable, and (3) meets these criteria by a perceivably large enough margin to justify denying a license to the original site.
A site that is either environmentally equal or only marginally superior is not sufficient; nor is a site the asserted superiority of which is uncertain.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 522-36 (1977); Rochester Gas and Electric Qorp. (Sterling Power Project, Nuclear Unit No. 1), ALAB-502, 8 NRC 383, 393-98 (October 19, 1978).
Both a substantiality of preferability and a certainty of preferability must be established.
Opera cit.
For the very same reasons, the availability of a supposed alternative must also be demonstrated to a fair degree of certainty, for an " alternative" that is not available is no alternative at all.
What must not be lost sight of is that the question before this agency is to license or not to license a proposed facility at the proposed site.
A finding that there exists an obviously superior alternative site means that the license to be applied for is to be denied -- on the assumption that the same facility can as a practical matter be built on the
" alternative" site.
If this does not require the agency to grant -- simultaneously with the denial of the prime site license -- a license at the " alternative" site, then at the minimum it does require that the practical availability of the " alternative" be demonstrated to a degree of almost absolute certainty.
Especially is this so because a private applicant is being forced to the alternative as a result of the agency Staff's analysis with which the applicant may disagree.
Since the Staff found neither the Pilgrim site nor the Phillips Cove site to be obviously superior environmentally, it did not have to pursue the availability of these sites.
Because one intervenor continues to urge the denial of the Seabrook closed-cycle license on the basis of these alterni tives, we proceed to demonstrate why neither can be found to be "available" with any degree c' certainty.
A.
State Law The law of the State of Maine provides as follows:
"One or more foreign electric compar.ies may construct, purchase, own, control, operate, manage,.aortgage, lease, sell, dispose of, or otherwise participate in e utility facility, or interest therein, or the product or service therefrom, within this State in common or jointly with one or more domestic electric companies owning in the aggregate not less than a majority interest in such utility facility, provided that nothing herein shall be construed to authorize such a foreign electric company to sell electric energy at retail to customers located within this State."
35 MRSA 5 2311.
Maine utilities do not own a majority of Seabrook.
- Thus, Seabrook under its present ownership cannot be built at Phillips Cove under Maine law.
Staff will argue a different set up could be adopted including the possibility of a separate Maine corporation owning the units, the stoak of which would be owned by the present owners in the same proportion.
Prescinding from the legality or propriety of such a subterfuge, the full and complete answer to this argument is:
"[T]his Commission sits to license, or not to license a nuclear power plant proposed by a particular appl 1-cant.
It is not within our power to order a different plant be built by another utility."
Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 539-40 (1977).
E.
Zoning Ordinances Under the Town of York Zoning Ordinance, most of the Phillipa Cove site falls within Zone C-1, App. Ex. 79-1 26, which is governed by the requirements of a " Protected at Residential Area", id. at 20, with the exception that hotels, motels and marinas are allowed, id. at 27 Thus, under present law unless Seabrook 1 & 2 can be disguised as one or two family homes, churches, hospitals, schools, museums, libraries, art galleries, farms, marinas, hotels, motels or a country club, they cannot be built at Phillips Cove.
Id. at 20, 27.
It may be argued that zoning laws can be changed.
How-ever, the change will have to be accomplished in a state where the current ownership is made illegal.
We doubt it.
COMCLUSION The Staff's proposed findings, rulings and conclusions should be adopted with the exception of those discussed in Parts I and II hereof; and Phillips Cove abould be found to be a non-viable alternative.
Respectfully submittea, Thomas G. Dignan, Jr.
Thomas G.
Dignan, Jr.
R. K. Gad III R.
K. Gad III Counsel for permittees March 2, 1979
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1MC. YRIDLC Abit'Mctu.yt I
Distinguishing between the Viable and the Non-Viable Alternative is a!
formidable challenge even for experts. It is comparable to the test of d*stin-guishing between the poisonous and non-poisonous mushroom. (Although failure to distinguish properly between the Viable and the Non-Viable Alterna-gg tive does not have consequences of such immediate, evident, and absolute gOn seriousness as does failure to distinguish properly between the poisonous and the non. poisonous mushroom.)
Non-Viable Alternatives, as a rule, are not difficult to find. They usually hang around, hoping to be noticed. They sit with arms folded and will not be budged. They tend to be stumbled over. Stumbling over a Non-Viable Alterna-tive can result in great loss of time and may leave. the Alternative hunter without a real Alternative.
Many Viable Alternatives are short-lived. An Alternative that is Viable one '
day may be dead the next day. On the other hand, a change in climate,Y especially political climate, may cause the revitalization of a dead or torpid Alternative. Some Alternatives have been known to revive afterlivingin a state l of suspended animation for years.
Little need be said of a third variety,the Unthinkable Alternative.The best that can be claimed for Unthinkable Alternatives is that they are regularly,but regretfully, thought about.
Alternative experts are distinguished by their language. Like lawyers and foreign policy experts, they say things such as "yes but" or "either/or" and "on the one hand and then on the other."When "Either/or" Alternatives meet, only one can survive. "Both/and" Alternatives, on the other hand, can live together-if not'in harmony, at least within the tolerable range of adjustment.
Viable Alternatives, if not recognized and noticed, will often lie around making reproachful sounds and saying something that sounds like."I told you so."
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V18BLe ad NON-Viable Atmariyes
CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the applicants herein, hereby certify that on March 2,1979, I made service of the within document by mailing copies thereof, postage prepaid, first class or airmail, to:
Alan S. Rosenthal, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 E. Tupper Kinder, Esquire Dr. John H. Buck Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Appeal Board Office of the Attorney General U.S. Nuclear Regulatory Commission 208 State House Annex Washington, D.C.
20555 Concord, New Hampshire 03301 Michael C.
Farrcr, Esquire Karin P. Sheldon, Esquire Atomic Safety and Licensing Sheldon, Harmon, Roisman & Weiss Appeal Board Suite 500 U.S. Nuclear Regulatory Commission 1025 15th Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20005 Ivan W. Smith, Esquire Dr. Ernest O. Salo Atomic Safety and Licensing Professor'of Fisheries Research Board Panel Institute U.S. Nuclear Regulatory Comnission College of Fisheries Washington, D.C.
20555 University of Washington Seattle, Washington 98195 Joseph F. Tubridy, Esquire 4100 Cathedral Avenue, N.W.
Dr. Kenneth A. McCollum Washington, D.C.
20016 1107 West Knapp Street Stillwater, Oklahoma 74074 Dr. Marvin M. Mann Atomic Safety and Licensing Robert A. Backus, Esquire Board Panel O'Neill Backus Spielman U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, D.C.
20555 Manchester, New Hampshire 03105 Lawrence Brenner, Esquire Laurie Burt, Esquire Office or the Executive Legal Assistant Attorney General Director One Ashburton Place U.S. Nuclear Regulatory Commission Boston, Massachusetta 02108 Washington, D.C.
20555 Thomas G.
Dignan, Jr.
Thomas G.
Dignan,.Tr.
.