ML17138B594
| ML17138B594 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 11/25/1980 |
| From: | Laverty J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML17138B595 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8012020658 | |
| Download: ML17138B594 (17) | |
Text
UNITED STATE OF MERICA I
5
. 0> ~
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD" In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
AND ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
(Susquehanna Steam Electric Station, Units 1 and 2)
)
Docket Nos.
50-387 50-388 NRC STAFF ANSWER IN SUPPORT OF APPLICANTS'OTION FOR PARTIAL
SUMMARY
DISPOSITION OF CONTENTION 17 OZONE..
I.
INTRODUCTION On August 22, 1980, Pennsylvania Power and Light Company and Allegheny ta, Electric Cooperative Incorporated (Applicants) filed "Applicants'otion for Partial Summary Disposition of Contention 17 Ozone" (Motion).
By letter of September 8,
- 1980, the Staff advised the Board that it did not oppose Appli-cants'otion.
At that time, the Commission's Rules of Practice only permitted responses in opposition to a'motion for summary disposition.+
As of October 17,
- 1980, however, the Rules have been changed to permit responses both in support of and in opposition to a motion for summary disposition/
With this change in the Rules in mind then, the Board invited the Staff to file a substantive Ql C.F.R.
5
.7 9(a).
Q2 45 Fed.
~Re
. 68919 (October 17, 1980).
8eeosog g8
C 4-lt 0
'll
response to Applicants'otion in its "Memorandum and Order Inviting Further Responses to Summary Disposition Requests" (Order) of November 4, 1980.
The Staff was given 21 days from service of the Order to file its response.
Applicants'otion addresses that portion of Contention 17 which states that the "ultra-high 'voltage (UHV) transmission lines" through which Appli-cants plan to transmit electricity will "generate dangerous levels of ozone that will cause more injury to vegetation than any other pollutant and can also have harmful effects on human health."
Applicants assert that this portion of Contention 17 presents no genuine issue of material fact and that thus Applicants are entitled to a decision in its favor on this portion as a matter of law.
The NRC Staff supports Applicants'otion.
As further explained below, the Staff concludes that Applicants'otion and its support-ing documentation clearly demonstrate the absence of any genuine issue of material fact with respect to that portion of Contention 17 dealing with ozone.
The Board should, therefore, dismiss this portion of Contention 17 as a matter of law.
Section II of this pleading will discuss generally the law applicable to motions for summary disposition.
Section III will show that the ozone portion of Contention 17 raises no genuine issue of material fact.
Section IY will address the questions raised by the Board in its Order regarding the legal effect of a factual finding that the amount of ozone which might be generated by the facility's 500 kv transmission lines is less than the amounts established as the national primary and secondary ambient air quality
t
standards.~
The Staff supports Applicants'tatement of facts as to which 3/
there is no genuine issue and does not believe that it is necessary to supplement that statement.
II.
GENERAL POINTS OF LAW The Commission's Rules of Practice provide fot summary disposition of certain i ssues on the pleadings where the filings in the proceeding show that there is no genuine issue as to any material fact and that the movant is entitled to a decision as a matter of law.
10 C. F.R.
5 2.749.
Because the Commission's summary disposition rule is analogous to Rule 56 of the Federal Rules of Civil Procedure,+
Federal court decisions interpreting Rule 56 may be relied on for an understanding of the operation of the summary disposition rule.
- Thus, the Supreme Court's holding in Adickes v. Kress 8 Co.,
398 U.S.
- 144, 157 (1970), that the party seeking summary judgment has "the burden of showing the absence of a genuine issue as to any material fact" is
,applicable here.
To meet this burden, the movant must eliminate any real 5/
doubt as to the existence of any genuine issue of material fact.
Poller v.
Columbia Broadcastin Cos s
368 U.S.
- 464, 468 (1962); Sartor v. Arkansas Q3 Memorandum and Order Inviting Further Responses to Summary Disposition Requests (Unpublished, November 4,
- 1980,
- p. 2-3).
g4 Alabama Power Com an (Joseph M. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 1974 Q5 Cleveland Electric Illuminatin Com an (Perry, Units 1 and 2),
ALAB-
- 433, 6
NRC 741, 752-54 1977
Natural Gas Cor., 321 U.S.
- 620, 627 (1944).
In discharging this burden, the summary disposition rule provides that all material facts set out in the statement mandatorily accompanying summary disposition motions will be deemed to be admitted unless controverted by the opposing party.
10 C.F.R. 3 2.749(a).
Although the record and the affidavits both supporting and opposing a motion for summary disposition must be viewed in the light most favorable to an opposing party; that party must present facts in the 6/
proper form in order to defeat a summary disposition motion.
An opposing 7/
party's facts must be material and substantial, not fanciful or merely suspicious, 8/
Summary disposition is desirable because it permits the prompt resolution of an issue on its merits without a formal hearing when no factual dispute exists.+
The Staff submits that such a procedure is particularly appropriate here as there is no factual basis for the portion of Contention 17 which refers to ozone.
6/
See Public Service Co. of New Ham shire (Seabrook Station, Units 1 and
+2) LBP-74-36, 7 AEC 877 1974 Q7 Gulf States Utilities Com an (River Bend Station, Units 1 and 2)
LBP-75-10, 1
NRC 246, 248 1975).
j8'd.
9/
Gelhorn and Robinson, Summar Jud ment in Administrative Ad'udication, 84 HARVARD L. REV. 612 1971 III.
STAFF ARGUMENT IN SUPPORT OF APPLICANTS'OTION Applicants have attached to their Motion "Applicants'tatement of Material Facts As To Which There Is No Genuine Issue To Be Heard (Ozone)"
and "Appli-cants'rief In Support Of Their Motion For Partial Summary Disposition of Contention 17 (Ozone)."
'The Staff has independently evaluated the issue raised by these documents and concludes that the ozone portion of Conten-tion 17 lacks a factual basis.
The Staff further notes that CAND (the sponsor of Contention
- 17) has not submitted any factual basis for its asser-tion that the ozone to be generated by Susquehanna's transmission lines is dangerous, will cause more injury to vegetation than any other pollutant, and can have harmful effects on human health.
All transmission lines contain slight surface irregularities.
Electricity passing through these lines can result in electrical or corona discharges to the surrounding atmosphere due to these irregularities.
Corona discharge frequently results in the production of ozone.
(Affidavit of Gerald E.
Gears at 2).
Because Susquehanna's 500 kV lines are not yet operating, actual field 10/
measurements cannot be undertaken at this time.
Extra high voltage lines such as Susquehanna's 500 kV system,
- however, are in widespread use.
A variety of ozone field measurements have been taken at ground level beneath
~10 Generally, lines above 800 kV are classified as ultra high voltage (UHV) systems.
Susquehanna's 500 kV lines are considered an extra high voltage (EHV) system.
(Gears at 2).
these systems.
All reported field measurements conclude that EHV trans-mission lines provide no more than 1 ppb ozone under fair weather conditions.
This level is barely detectable by ozone detection instruments.
During foul weather conditions which are more favorable for the production of ozone, small amounts of ozone (20 ppb) were measured at the approximate height of a transmission line but no ozone was detected at ground level.
(Gears at 2).
Assuming ~ar uendo that existing data on actual field measurements do not represent maximum ozone production rates, theoretical calculations have been done which provide the range of worst case values for ozone generation from transmission lines.
Theoretically, the maximum increase in ozone concen-trations due to EHV lines under optimum conditions may be 20 ppb.
These theoretical calculations do not, however, consider a variety of factors which reduce the maximum concentration.
(Gears, at 3).
Perhaps the most significant or these factors is ozone decay.
Ozone decays in 15 to 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> in rural areas characterized by clean air.
In areas where nitrogen dioxides are high, or when atmospheric moisture content is high, decay requires only a few minutes.
Because the Susquehanna right-of-way runs predominantly through rural areas, the NRC Staff's con-clusions are based on a
15 to 20 hour2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> decay rate.
When this decay rate is incorporated into the theoretical calculations, the concentrations under ideal weather conditions for ozone generation at this site are estimated to be between 7 to 9 ppb.
(Gears at 3).
~
~
=
Background===
ozone concentrations along the proposed Susquehanna right-ofway vary from 20 to 50 ppb.
While field measurements showed that actual increases in ozone concentrations due to transmission lines were indis-tinguishable from ambient background ozone concentrations, theoretical models posit maximum increases in ground level concentrations of 7 to 9 ppb ozone.
When this maximum theoretical increase in concentration due to transmission lines of 7 to 9 ppb ozone is added to the ambient background concentrations along the Susquehanna right-of-way, the national primary and secondary ambient air quality standards for ozone are not exceeded.
These standards consider all potential human health and environmental effects from ozone.
Based on our independent review of scientific knowledge regarding the human health and environmental effects of ozone, as authoritatively evidenced by ozone ambient air quality standards, the NRC Staff concludes that ozone generation from transmission at this site will not result in any adverse environmental impacts.
(Gears at 4).
IV.
LEGAL EFFECT OF FACTUAL FINDING THAT OZONE GENERATED BY TRANSMISSION LINES WILL NOT EXCEED NATIONAL AMBIENT AIR UALITY STANDARDS The Board has asked all parties to address the question of the legal effect of a factual finding that ozone releases will comply with EPA requirements with respect to such releases.
The Board has further asked whether any particular weight must be accorded such compliance and whether compliance establishes that the ozone releases are of little or no environmental significance.
The EPA requirements which pertain to the ozone releases at issue in this
~11 case are the national primary and secondary ambient air quality standards.
'I The Clean Air Act (Act) requires EPA to establish primary and secondary ambient air quality standards for identified air pollutants which accurately reflect the latest scientific information useful in determining the kind and extent of all identifiable effects on public health or welfare that may be expected from the presence of the pollutant in the ambient air. The 12/
states have the responsibility for assuring the attainment and maintenance of ambient air quality standards.
Thus, the states submit plans to EPA for approval which include emission limitations, schedules, timetables for compliance with such limitations, and other measures necessary to ensure 13/
attainment and mai'ntenance.
The Clean Air Act states that the national primary ambient air quality standard shall be designed to protect the public health. In so doing, 14/
the Act requires that the primary standard incorporate an adequate margin of safety.
The standard thus resolves any doubts regarding effects on human health in favor of protection.
In developing this standard, the Act does not permit EPA to consider the cost of compliance with the standard or the
~11 42 U.S.C.
557401 et ~se
~12 42 U.S.C. 57408(a)(2).
~13 42 U.S.C.
57410.
~14 42 U.S.C. 57409(b)(1).
actual existence of technology which would enable any necessary reductions 15/
in emissions.
The national secondary ambient air quality standard is designed to protect the general welfare from any known or anticipated adverse effects associated with the presence of a pollutant in the ambient air. "General welfare" 16/
has been defined by the Act to include such things as adverse effects on soils, water, crops, vegetation,
- animals, weather, visibility, climate, and personal comfort and well-being. The secondary standard is thus based 17/
upon a consideration of all those factors, and more, that the NRC Staff would evaluate in order to determine the environmental impact of a pollutant.
EPA promulgated the original national ambient air quality standards for ozone in 1971. Both the primary and secondary standards were set at an 18/
hourly average level of 80 ppb not to be exceeded more than once per year.
19/
On June 22,
- 1978, EPA announced that it had reassessed its conclusions based on an evaluation of medical evidence accumulated since 1970.
This led EPA to propose a revised primary standard of 100 ppb.
20/
~15 Union Electric Co. v.
EPA, 427 U.S.
- 246, 247 (1978); 44 Fed.
~Re
. 8202, 8203 1979
~16 42 U.S.C. 57409(b)(2).
~17 42 U.S.C.
$7602(h).
~18 36 Fed.
~Re
. 8186 (April 30, 1971).
~19 43 Fed.
~Re
. 26962 (June 22, 1978).
+20 Id.
In 1979, after receipt of more than 70 written comments, two meetings of the Subcommittee on Scientific Criteria for Photochemical Oxidants of EPA's Science Advisory Board, active participation by the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollu-tion Control Offices, and four public hearings, EPA concluded that ozone levels of 150 to 250 ppb would have adverse health effects on significant I
numbers of sensitive persons.
EPA thus set a primary ozone standard of
~21 120 ppb in order to exercise that degree of prudence required by the Act.
Basing its secondary ozone standard on currently available information relating to growth and yield reduction in commercially important crops and indigenous vegetation exposed to ozone under field conditions, EPA concluded that there is no current evidence indicating a significant decrease in growth or yield will result from ozone concentrations of 120 ppb or less.
22/
Given this history, it is clear that the national primary and secondary ambient air quality standards represent today's best knowledge of the human health and environmental effects of ozone.
The data base upon which these standards were established is current,
- complete, and authoritative.
- Thus, as the Board clearly raised this issue in the context of a motion for summary disposition, CAND's contention that the ozone to be generated by the trans-mission lines is dangerous to all living things is without basis in fact, given the consensus of informed scientific opinion that no human health
~21 44 Fed.
~Re
. 8202, 8217 (1979).
~22 Id. at 8218.
effects or adverse environmental impacts have been established for ozone concentrations of less than 120 ppb.
In specific reply to the Board's questions, the Staff believes that, in a situation in which Congress has clearly delegated to an agency, in this case EPA, the sole responsibility for establishing discharge limitations on a
particular pollutant or types of pollutants, it is not desirable to have other agencies "second-guess" the responsible agency by establishing other limitations. This does not, however, absolve NRC or any other federal 23/
agency of its independent obligation, when deciding whether to license speci-fic projects, to weigh any resulting degradation of air or water quality in PAPA
-1 I'I 11 Id I, 1
App I
dd ~TV11
~Authorit (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702, 712-13, recognized the statutory distinctions involved but concluded that the federal responsibility for pollution control rests with EPA as its
~23 Both the Commission and the Appeal Board have held that, in certain situations, findings of other government agencies should be binding on the NRC.
In Public Service Com an of New Ham shire, et al.
(Seabrook Station, Units 1 and 2, CLI-78-1, 7
NRC 1
1978, the Commission
- accepted, without further review, EPA's finding that "the marine envi ron-ment impacts of once-through cooling are small."
Id. at 23.
As justi-fication for reliance on the EPA findings the Commission stated that "EPA is a sister Federal agency with expertise in the subject area, and it is being relied on for determination of a single entirely factual issue which Congress has specifically entrusted it."
Id. at 26.
Similarly, the Appeal Board has allowed considerable weight to be given to electricity demand forecasts of local regulatory agencies in deter-mining the need for power.
Carolina Power 5 Li ht Co.
(Shearon Karris Nuclear Power Plant, Units 1, 2, 3,,
A B-90, C 234, 241 (1978);
Rochester Gas
& Electric Cor., et al. (Sterling Power Project, Unit No. 1, ALAB-502, 8 NRC 383, 388~1978).
exclusive province.
It would seem unlikely that, as in the case of water and air quality matters, Congress intended other agencies such as the NRC to develop duplicate expertise and "second-guess" EPA.
There is no explicit legal obligation to accord any particular weight to a
finding of compliance with EPA requirements.
The NRC should, however, defer to EPA and accept as binding such findings, absent a strong showing that special circumstances warrant the use of a standard different from that used by EPA.
- Thus, a finding that the ozone releases from the Susquehanna trans-mission lines come within the EPA requirements would establish that those releases could not result in any danger to the public health and safety.
- Further, based on the studies and analyses performed by EPA before the ozone standards were set, a finding that ozone releases from the transmission lines came within those standards would establish that the releases were of "little or no environmental significance."
V."
CONCLUSION Based on the foregoing, the NRC Staff believes that it is clearly demon-strated that there is no genuine issue as to any material fact regarding the portion of Contention 17 which relates to ozone.
Accordingly, the NRC Staff believes that summary disposition in favor of the Applicants should be granted as a matter of law in accordance with 10 CFR 5 2.749.
Dated at Bethesda, maryland this 25th day of November, 1980.
Respectful ly submi tted,
~
~
'A'~ Cd<'<
YKcc.~=
'Jessica H. Laverty Counsel f'r NRC Staff
(</5)