ML17338B101
| ML17338B101 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 08/09/1979 |
| From: | Bowers E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7909260285 | |
| Download: ML17338B101 (66) | |
Text
UhZIZD STAKS OF ~~CA VCIZ2Z REGLr&ZCEY CQ 8ZSSEN B~: ZW AD~>C SAETY Ai~lD LiCW~SLXG BOARD Xn the Ye.tter of H.CODA PC4ER 6 LT. RT ~iANY (Turkey Point Nuclear Gene~~
. Wiits 3 and 4)
)
) Docket Nos.
50-250 (SP)
)
50-251 (SP)
(Proposed Arvandments to Facility Operating License to Permit Steam Generator Repairs) hUZZCE OF HEK~G August 9,
)
On De~er 13,
- 1977, the Nuclear Regulatory Commission noticed an.
avert to the facility ope"atirg licenses of Florida Power and Light (FPL),
- Nos.
DPR-31 md DPR-Al, relative to proposed steam generato" repairs at Turkey Point Nuclear ~crating Units 3 and 4, located in Dade Ccunty, Florida (42 Fed.
Reg.
52569).
The Entice stated that petitions to intervene should be submitted prior to the emi=ation of the thi~y-day (30) period"'from the date of the Notice, or J~m~ 13, 1978.
No petit ons to intervene were filed g ~~is period.
Februa~
9, 1979, acre Am a year a~~er the expiration of the intervention period, Hark P. One~age requested a hear~~,
An Atcmic Safety and Licensing Board was established to rule on tb petition and to preside over the proce~~ in th event that a hea-ing ~m ordered.
(W Fed. R~g.
12120).
li 4t
Following a prehearing conference on Mwy 2, 1979, and in consideration E
oz subsequent
- events, the Petit'on Review Board dete~rined on Au~~t 3, 1979.
that the Petitioner should be granted the status as an Tntervenor and isa~~d an Order granting the petiticn and admitting W. Cncavage as a party to the proc ee ciIlg .
Please take notice that a hearing willbe conducted in this proceeaing.
Tne Atomic Safety and Licensing Board which has been designated to preside ~er QLs proceeding consists of Dr. David B. Hall., Dr. Oscar H. Paris, and Elizabeth S.
Bcx~ers, w'no willse~
as Chairman of the Board.
IXaring the course. of the proceeding, the Board willhold one or more prehearing conferences.
The.public is invited to attend my prehearing con-fe"aces, as well as the evidentiary hearing.
During seve or all of these
- sessicns, md in accordance with 10 CFR Section 2.715(a), my person., not a pa~ to the proce di~~, will be permitted to naM a limited appearance state-met, either orally o" in wr'vg, stating his or her position on the issues.
The number of persons rra~ oral statements will be limited and the tizne allowed for each oral statemt w'l be limLted to five (5) minutes.
Persons desiring to make a lizzi.ted appearance are requested to inform the Secretary o
the Cori;ssion, U. S. Nuclear Regulatory Ccomission, Nashi~ton, D. C.
20555, Attentim:
Dodceting and Service Section.
written statetmts suppleEting o" in lieu of oral statements may be oz any length and willha.
accepted at any session of the proceeding or may be mailed to the Sec eta~-
of - the Ccmnission.
4l
For M~her details, see the Licmee's transmittal letter chted Septenbe=
20, 1977 md the mclosed'St~
Generator Repair Report, other material sotted by the Licensee in support. of tMs action, and papers Eiled concern~ the petition for leave to intervme, inclucU~~ the Order ruling ~on the intervention petition, dated Au~t 3, 1979, all of which are available for public inspection at the Ccmcission's Public Document
- Room, 1717 H Street, N. 71., NashinMon, D. C., and at the Local NRC Public Doc~t Boom, Environ-cental and Urban Affairs Libra~, Florida International University, Miami, P
Florida. ~ follcx~~g documents may be inspected at the above locations:
- 1) the Safety Evaluation Report prepared by the Ccamission's OZEice of Nuclear Reactor Re~ation; and 2) any environmental review documents Mich may be
.reauired by the Commission's regQ.aticns in 10 CFR Part 51 and all subsecpzent filings by the Board and the pres.
ZZ IS SO ORDr~
THE ATQ'DC SAFETY A.R LICKS QG BOABD Eliz eth S. Bene"s, Cn~can Dated at Be& sda, HaryLmd t~ 9th day of AU~t 1979.
4i
UNZHU) STATES OF AMERICA NUCUM< REGUIATORY CD4MSSION 9
BEFORE 'IHE ATCMIC SAFETY AND LICENSING BOARD gggLC PUG 6197'
'~
CHIce cd +e -~
QeclVllee ~
Qj In the Matter of FLORIDA. PSvER 6 LIGHZ COMPANY (Turkey Point Nuclear Generating Units 3 and 4)
) Docket Nos.
50-250 (SP)
)
50-251 (SP)
(Proposed Amendments to Facility Operating License to Permit
) St~ G erator R pairs)
AuIpmt 3, 1979 ORDER RULING ON THE PEZITION OF MARK P.
ONCAVAGE On Decenher 13, 1977 the Nuclear Regul'atory Ccaxni.ssion noticed an amendaant to the facility operating licenses of Florida Power and Light (FPL),
Nos.
DPR-31 and DPR-41, relative to proposed steam generator. repairs at Turkey Point Nuclear Generator Unit Nos.
3 and 4, located in Dade County, Florida.
(42 Fed.
R~e.
62569),.
The notice stated that petitions to inter-vene should be. submitted prior to the expiration of the thirty-day (30) period from the date. of the Notice, or. January 13, 1978.
No petitions to intervene were filed during the intervention period.
On Febru~
9,, 1979, cure than a year after the expiration of the intervention period,.Mark P.
Oncavage requested a "fullhearing."
He stated that the FFL letter of Septecber 20, 1977, referenced in the Federal R~e'ster notice,. did not arrive at the local docket room until January 22, 1979 and that this fact established "good cause" for the late filing. Nr. Oncavage's letter expressed environmental and, safety concerns.
On February 22, 1975I I4i. Onmvaga recited that his letter 'of
'Febru'uy 9 be consicIered a pet:it:ion to intiwvene.
On Febi~xy 27, 1979 sn
'tomic Safety and Li.censimg Petitio Board was appointed to rule on the petition to intervene fryNr. Once+age.
(44 Fed.
R~e.
12120).
On March 1,
'1979 the NIT Staff responded to the petition, stati~
it should be denied beche the petitioner did not rreke an adectuate showing of the factors to support an cast-,of-time f:Lling set forth in 10 ~ 52.714(a).
Staff said that Mr. Oncm~e cou'.Ld have contacted the 5RC in a timely fashion'f he had been genuineLy interested.
On March 9,
'L979 FPL responded: to the peti~on, sayir@ that the request for a hearing she+lid be dend.eel beche it is untimely, fails to eke a substantial showy of good cause for failure'o file on time, fails to ccmply in form and content with basic requ:irements imposed by the Ccemission's rules for such requests; and fai'Ls to deacemtrate any f'acts to support his standing to intervene.
Further, the Licensee. said that granting the request for a hem~ at this lat:e date wan LLd severely prejmiice FPL.
Attached to the filingwere copies of tIhe FPL letter of Septexber 20,
- 1977, an afBMvi't of G. D. Ruttier relative to a visit to the local library docket room, md an affidavit of H. D. IM~tz relative to the schedulizg of the steam generator repairs.
Shortly thereafter, in a ccnNerence c Q.l with the Board, the. parties agreed that a prehe:~ng coherence would be held in Miami, Florida on May 2, 1979.
The Petition<~w also, participated in the cce5~wence cal:L.
On Narch 19, 1979 a revised petiticn to intervene was filed by Nark P. Chcavage.
The petiticn reiterated environmental, health and safety,
~ and economic concerns.
It also responded'o the factors justifying the granting. of a late petition set forth in 10 CFR 52.,714(a)
Petitioner stated that the absence of FPL's letter of September 20, 1977 established good cause for his late filing, that. there is no other pending proceeding at the State level, that an effort willbe made to assist in developing a sound record, that there are no other "existing parties" to represent his interest, and that any delay caused by his intervention would be mre than offset by the value of a public hearing.
An affidavit of Ns.
Renee Daily, loca'ocket librarian, and a action to conmence discovery were attached to the revised petition.
On Narch 30, 1979 FPL responded to the revised petition.
The filing repeated FPL's position that the P titioner had not met the burden in 10 CFR 52.714(a) for an untimely petiticn.
The Licensee asserted that the initia-tion of a hearing at this late date would disrupt careful planning and considerable effort and could deny Licensee the ability to ccmnence repairs without delay.
PPL further stated that the petition fails to establish "interest" and does not contain an acceptable contention.
On April,6, 1979 the NRC Staff filed its response to the revised petition. It said that the peti.tioner had not established good cause for the late filingbut agreed with Petitioner that his interest would not be protected outside this proceeding.
In additicn, Staff said that Petitioner's claim of being able to assist in developing a sound record is unsubstantiated.
1/
14.th regard, to factor three, Staff said that while its mandate is to protect the interest of the public at large there is rocm for the advancement of individualized interests iin these pmceedings,'taff ~eed with Licensee that an evidentiary heariz~ at this date w~d h'ave the potential for cansing considerable delay in thi. proceeding.
E'inally, Staff concluded that Petitioner had at lemt miLnimally.satisfied tIa interest reqvdxenent and had set forth at least one adequately pleaded contentictn.
Qmn the, Board met prior to the Prehearirig Coherence, it was 1k~ed that only Dr. Hall, had received a pleadirg fry the Petitioner dated April 24, 1979, entitled "Petitioner Reply to Licereee
Response
and NRC Staff Response."'he pleading stated t9mt E'etiti'.oner's "ihtejrekt" auld be affected and 'that
'his was sufficient to develop a sot.md reco'rd'"i~pective of any expertise the Petitioner may or may, not hme."
During the Speci.al Preheax~
Conference 'on Nay 2, 1979 the Petitioner submitted a new list: of contentions to the Board and distributed
'opies to the parties.
Both KV. and the HRC Staff protested that this 'Ziiin'g was untim ly and, tea'efore, not permitted by thI z'eyQations unless Petitioner was granted leave by the Ehard based on a balancing of the same factors which
'ust be considered for,an untimely petiticn for leave to interne.
(Tr. 92, 96).
6
"(3)"
- d. 6: l97l'
.d 6 t'.
"(iv)" in a revisi'on of t1he rule 'j'mt became effective in 1978.
On May 9, 1979 the Board issued an Order requesting a response fran FPL and the NRC Staff as to what the expectations are that the new contentions may contribute to a sound record.
FPL responded on May 21, 1979 by stating that the motion to amend is untimely and that the new contentions indicate that the Petitioner still has not become familiar with essential, available information.
FPL also. pointed out that the presentation of a direct case is unlikely since Petitioner's two "firm"witnesses have expertise in areas not within the areas of the contentions.
FPL stated that Petitioner's position at the Prehearing Conference was that an intervenor could present his case through cross-examination after discovery.
FPL concluded that the Petitioner's participaticn would be unlikely to assist in developing a sound record, that, the petition and the motion to amend, were late, and that the requirements of Section 2.714(a) (1) (iii) and Section 2.714(a) (3) have not been net by the Petitioner.
On May 23, 1979.the NRC Staff responded to the Board's Order of May 9, 1979.
The Staff stated that the Petitioner had been too vague in, discussing the possibility of his contributing to a sound record so the Staff had no choice but to assume that his participation would not make a contribution.
The Staff mentioned that many of the contentions contained references to the Federal Water Pollution Control Act (FHPCA).
The Staff said since EPA issued -a National Pollutant Discharge Elimination System (NPDES) Permit (No. FL0061562) for the Turkey Point facility on June 14, 1978, pursuant to )402 of BECCA, those portions of the contentions alleging non-compliance with the FAPCA are inadmissible.
The Staff contended that absent information about the identity and qu Q.ifidwti~ of witnesses, it did not believe that the conter'ations demonstrated t2mt the~ Petitioner cou.'Ld reasonably be expected to assist in the development of the record:Ln thLs proceed~.
On May 15, 1979 St:aff i.ssued the 'Safet'y Evaluation Report (SER) for the proposed steam generator repair at: Turkey Point.
2a it Staff concluded;.
"(1) there is reasonable assurance that the health and safety of,the publ~ic~
willnot be endangered by operatim in the proposed manner, and (2) sue>
activities willbe conducted in nxqpli.ance with the Ocmrrission's regulation+~
and the issuance of these arIxmdmmts willnot be inirrrical to the nmron defense and security or to the health and Aafh+ of the public." (at, 4+1)~.
On, May 23, 1979 the.Board received a t;elegram from Dean Bruce 8.
Rogow, Nova Law SchoolFt. Lauderdale stating that he and eight other Florid@
lawyers were camrI'.tted to represent Mr. Onctavagd. ifhe is pexoritted to'inter-vene.
In addition, De rn Rogow request:ed seven (7) days after receipt of the filings by FPL and Staià in respcesie t:o the Board's Orch'f May 9, 1979,~ in which to respond t:o those fi.lzngs.
'Ehe contents of the telegram were con-firmed by a serviced letter from Dean Rogm dated Y~ 24, 1979.
Licensee responding by lett:er dated Nay 29, 1979 expressed opposition to Dean Rogow's request for leave to fi.le a pleacling "To the ~ent ~~> that the letter and telegram constitut:e a request
.for dhelay of a decision, on the petition t:o intervene or for advance permission to file still another unruly petitibn
In the interest of expediting the proceeding, the Board held a conference call with the parties and Petitioner on May 31, 1979.
During the call it was agreed that Dean Rogow would be allowed until June 7,. 1979 to file a response to the filings that FPL and Staff had submitted in,response to the Board's Order of May 9.
BseQmr, it was agreed that Licensee would be allowed until June 20, 1979 to respond to Dean Rogow's filing and Staff would be allowed until Jme 25 to make a response.
In addition,,a member of the Board advised. the parties that he.had studied the SER in an effort to obtain answers to certain questions elicited by the list of contentions which Petitioner had submitted during the Preheming.Conference on May 2, 1979, but that he was not satisfied with regard to the adequacy of scme of the information in the SER.
Consequently, the Board requested Licensee to provide it with copies of the Steam Generator Repair Report (SGRR).
Licensee agreed to comply. and sent copies of the SGRR to the Board on June 5, 1979.
Dean Rogow submitted his Notice of Appearance on behalf of Petitimer and a filing entitled "Supplemental Submission of Petitioner Mark P. Oncavage" (Supplemental Submission). on June 5, 1979.
The. Supple-aental Submission identified tm expert witnesses who are comnitted to testify on behalf of Petitioner, gave their credentials, and indicated the contentions which their testimony would address.
The three major areas to be addressed by these witnesses were identified as "(1) the long term on site storage of steam generator lower asseahlies in an 'earthen floor facility; (2) the occupational radiaticn exposure; and (3) the release of liquid effluents containing radioactivity into a closed cycle cooling canal" (Supplemental Submission at 2).
Tl;ese t:~e isC~ were focused on to show that Petitioner has the ~hi'Lit@ to'ontribute to a, he~ing,. but contentions'ddressing the safety of the present opera(i:icn ~sf the plant or the pot~tia1 for a recurrence of a need to Mce'team.generator repairs are not being
'bandoned.
(Id. fn. 1).
PI ti.tioner,arguei.that he has complied w'ith the
,need to provide information regardirg witnesses and testizxny and has demn-.
strated the-contribution he can make to a
. ound record (Xd. at 7).
He s~
that serious delay ia the proceedings can be am>ided by a prehearingccn-ference to narrow and define the scope of the hearing,.by stipulations, and by submissicn of written mater:Lais without live testimxiy', and he mainta'ups that any small tiae saAzgs, that wcvld be gained by deny'~ his petition for leave to intervene would be far otatveighed by the benefit to be derived from veiitilating his emtentiams (Id. at 8).
Licensee ind:Lcated its intention to re~ond to Petiti.oner's SuppleEtal Submissicnx by.Letter dated June 8, 1979 and filed its resj>case, entitled Licensee's Re.@ense to "Supplement:al Submission of Petitioner Nark P. Oncavage" gi.ctree 's,Response
.to Supplanaital Submission),
on June 20, 1979.
H.'L still, contends that a he~izig Cot.Q.d be unlikely to assist in developiag a sound record, would threaten to delay substantially the issuance of the liaise amenlho nt, and ~would de FPL the fle:ability needed for scheduLing the steam generator repairs.
Mith regard to the. three areas of concern dealt with in.the Supplemental ~Submission, FPL argues that the first, relate@ to occupatictml dose, Sh~d b5 disallowed because Petitioner would apparently have this Board QnpcIse'. a man-rem limit for '.th'e
repair operation.
Licensee claims that the Ccoxaission's regulations do not provide for the imposition of man-rem limits upon occupational activities.
M.th regard to the second issue, storage of the radioactive steam generators in an earthen floored facility on-site, Licensee maintains that Petitioner fails to take issue with the technical information contained in the SGRR concerning measures which willbe talon to avoid release of radioactive materials fran the asseahlies.
- Further, FPL says that Staff has found these measures to be in accordance with AIARA (as low as is reasonably achievable) philosophy.
Finally, with regard to the release of radioactive materials fran the cooling canals, Licensee argues that radioactive releases Tram the plant during the repair willbe controlled pursuant to the plant's operating licenses and willmeet the r~eaents of 10 CFR Part 20 and Part 50, Appendix I.
Licensee concludes that the petiticn to intervene should be denied because Petitioner has not denenstrated good cause for untimeliness nor established that he i;s likely to assist in developing a sound record, and because his participation willbroaden the issues and delay the proceeding.
The NRC Staff advised the Board of its intention to respond to Petitioner's Suppleaental Submission. by letter dated June 8, 1979 and filed said response on June 25, 1979.
On the basis of Petitioner's identification of "two apparently qualified witnesses" who could testify on matters relating to several contentions advanced by Hr. Oncavage, Staff said it now "believes that Petitioner could reascnably be, expected to contrib'ute to the developrrent of a sound record in this proceeding."
Staff concluded that on balance the factors which must be considered for a late petition weigh in favor of
-'. 10.'-
granting,Petitiomw.leave to,.intervene;
.Psmith&,.Staff ur'ges that
.parI:i'eIs'e allied a limited'~but'easonable period. of time, to reach scxrIe 'form of
.multi-;.party'greement on,.'the adori.ssibilit'y of the coriteitions or to file position:.statements.
on themor Riot'h.
With.this re~urd kmfore-us >a rm<t. nM 6 termine, whether the untimely petition of K.-; Oncavage shmQ.d be granted, by balancing the fice factors set forth i'- 10" CFR. g2.714(a) (1).
In additicn, we. aamt determIine whether Petiticnerhas an interest in the prceecdh~.pursuant to -10 CFR
$2.714(d) and rhetor he has set forth, at lea t one cognizable cont.ention'nd stated; the ba. is-Xoi. that.contagion wi,'th reas6nabl'e specificity, pursu mt to 10 CFR g2.714').
We must also determine whether.'- the list of.net conten-.
tions submitted cnxt of tive,on Nay 2, 1979,'should 1'~e.admitted. for considerat'.ion.
pursuant.to 10 CFEI, $ 2.714(a) (3);
'We:.turI~ nor tai tuse tasks,.
lLVZEREPT AM)'CNEENlTIONS As we" irdicat:ed eazl:ier,.:in additic6 to determining whether W. Oncavage has satisfied the:requirements for filing"out oi'tine; we must also determine whether he h e shcam that his interests'ay-be affected"by'he outcoae of thie prciceediag, whether-he ha"'atisfied the requirements for filing untimely amendments
.to his contentions, i and whether'he-',has advanced at least one cogniaajble emniacin. ancl set 'for'th.the ba. e's '.for that 'contention with reasonable spec'ifi.city.
lde shQ;1. deal first with the aetter of mt~est.
Interest of Petitioner Kr. Oncavage has told us that he and his wife and two year old son live approximately 15 miles from the Turkey Point Station.
He believes that his proximity to the station and the prevailing winds during 8 months of the year would mean that radioactive material which might be released as a result of the repair operation might pose a health hazard to him and his family.
(Revised Petition for Leave to Intervene).
In addition, Petitioner owns a sailboat and often cruises the waters of Biscayne Bay near Turkey Point and engages in fishing, crabbing, swimmng, skin diving, and underwater photography.
He believes that a release of radioactive material as a result of the repair operation might adversely affect his recreational use of this area.
(Ibid.)
Licensee argues that Petitioner has failed to set forth with suf-ficient particularity, how radioactive releases might affect his interests and argues that any injury to Petitioner, either directly or through inhibiting his use of recreati;onal facilities, is purely speculative.
(Licensee's Answer to Motion of Oncavage, dated March 30, 1979).
The NRC Staff, on the other hand, believes that Hr. Oncavage has satisfied the interest requirement as set forth in 10 CFR
$2.714.
Staff says "Petitioner's residence and con-siderable recreational activity is in close proximity (within 15 miles) to the plant and expressed ccncern over the possibility of radiological releases due to the proposed action presents a cognizable interest in the proceeding" (sic).
(Staff Response to Revised Petition at 6-7).
'Ihe Appeal Bcevi has held that residence within 16 mi.les is suf ficient to establi.sh interest of a petitioner who.raise safety questicrns.
Vir 'a Electric Paver G>. (Qmth Atna Pow'er Station, Units 1 and 2), ALhB-14',
6 AEC 631, 634 (1.)73).
In add:Ltion, the Ccaim".ssion has ruled that a petitioner who alleges that ho.s opportunity for recreatienail activity may be ~ished by a nuclear facility possesses adequate intexest to allow interventi.ce.
Philadel hia Electric (~~any, et: a.L.
(Peach Bottom Atcazic Power Station, Units 2 and 3), CIZ-73-10, 6 AlK 173.
With &effect to Licensee's arguaent that any injury to Peti.tioner is palely speeu.Lative, we can look t:o a recent ruling by the Appeal Boa+i in Inearth,. Anna.,V~inia Electric and Power; an (North Anna boucle z'oorer Station, Uni.ts 1 and 2), ALAB-522, 9:HRC 54 (1979).
There the Appeal Ehard rever~ed an order by' Licensing Board which bad denied a petition to inte~eD'n a spent Gml pool aedification proceeding; the Licensing Board's denial had beern based on the failure of the Petit~ to particularize a casual relatiaxshzp between injury to its interest: and the possible outcoae of the proceeding.
('Id. sjt 56).
1he Appeal Board said that
'close proximity h~ always been deened to be enough, standing alone, t:o establish the recpCkite interest," and "the question of whether [Petitioner's J concerm are justi.fied aust be left for consideziation when the nerits of the controversy are reached."
(Ib:id.).
We conclude that Staff is correct:.
Hr. Gncavage clearly has satis-fied the CooaLssi(n's reqoix;emote with regard to showing an interest pursuant to 10 CFR
$ 2.714(a) (2') and g2.714(d)
Untimel S
lements to Petition to Intervene The supplements to Petitioner's original petition which were sub-mitted at the Prehearing. Conference and, later, by Dean Bogow (Supplemental Suhnission),
were untimely pursuant to 10 CFR 52.714(b).
According to paragraph (b) additional time for filing a supplement may be granted by a 2/
Board upon a balancing of the factors in 10 CFR $2.714(a) (1).
We proceed now to a discussion of our consideraticn with respect to the admission of these untimely supplements.
Factor (i), the extent to which Petitioner has shown good cause for filing the supplements out-of-time, weighs against admitting the supplanents because Petitioner has failed to show any valid reason for their lateness.
We observe in this connection, however, that Petitioner was appearing pro se until just before the Special Prehearing Conference, and we do not dem'd that his early performance adhere rigidly to the Ccmnissicn's standards.
Therefore, we do not weight Factor, (i) as heavily as we otherwise might.
The, semantics of 10 CFR 52.714(b) do not make it clear, in our view, that the provision for granting additional time is applicable to the circumstances of this case.
A reading of the Ccomission's Stateaant of Consideration for revision of $2.714, however, convinces us that we may apply the rule to this case.
(43 Fed. Be, 17798, April 26, 1978).
The relevant.language in the StateEt o
Consideration is as follows:
"Second,
)2.714 is revised to specifically provide that late filed contentions,.(a con-
. tention or amended contention, which 'is filed after 15 days prior to the special prehearing conference, ~') willbe considered for admis-sion under the clarified criteria set forth in subp'aragraph (a) (1)."
Factor (ii'.), the avai1ability of, other aIeans whereby the Petitioner" s interest willbe protected if the supplea'ants are not admitted, weighs'n favor of allowing Qmir admis.icm.
There are no other aems whereby Peti-
'imer's interest wi'.ll lx. prot:ected; and.the suppleramts are. essential to the adequacy of his,peti'.tion Factor (ii'.i), the a~ent to An.ch the, szpplerents may reasonably
'be expected to assist im developirg a sound-record,,
weighs heavily in favor'of their admission in t:he opinion of Dr. Paris.
The revised contentions an'd the bases thereof which are set fciit1h i~ the supplene'nts advance -the issues whi'ch're the sine cIua non for his belief that part.icipation by Hr. On~e can be',
expected to assist im devel'oping a stmng record.
Dr. Paris finds that
'actor (iii) weighs heavi.ly in favor of admitting ithe supplements for 'the s'arne reason that" he H.ncLi. that= Fact:or (i';Hi') weighs heavily in favor of admitting tEe Petitioner, iris'.-'a, i'.his Separate Qpinion:
'mrs.
Sowers gives slight weight for the reasons stated on Factor (iILi), ~a, in her. Separat e Opinion,,
Factor (iv), the extent t:o which Petite.'oner's-interests willbe represented by existizg parties if the.:s~lenmts are not adad.tted, weighs in favor of admittiz>g them.
')he st.pplenents
,'are essential to his petition, and if'his petition is chivied there. willbe no hearing and no parties,'to,'epresent his interests.
Factor (v), the extract to Which admitting. the suppleo~ts will broaden the issues cz delay the proceeding, weipps against admitting them.
Factor (v) again weighs lightly, however, because in our opinim, the FPL schedule for the repair work is not fixed.
In conclusion, we find that Factor (i) weighs against admitting the supplements and Factor (v) weighs lightly against their admission.
Factors (ii) and (iv) weigh in favor of their admission.
Factor (iii) also weigh. in favor of admission, but we are not in agreenent as to the weight it should receive (see our separate opinions, infra).
On balance, we find that the factors in 10 CFR
$2.714(a) (1) which must be considered for the admission of untimely supplements to a petition, pursuant to 10 CPR 52.714(b),;wigh in-favor of their admission.
Consequently.,
the autions to admit the list of revised contentions submitted on May 2, 1979, and the Supplemental Submission filed on June 5, 1979, ax'e granted.
UNjHMELINESS Cause for Failure to File on Time Factor i)
At the Special Prehearing Conference on May 2, 1979 the parties and Petitioner were first given an opportunity to present argument with respect to showing good cause for the untimeliness of the petition.
Petitioner argued that nothin. concerning the proposed steam generator repair was published in local n~apers and that "narc notice in the Federal Register ~ is inadequate notice~."
(Tr. 17-18).
Hr. Oncavage first learned of the proposed repair through personal conversations in January 1979, after which he sought additional information in the public docent room at the library of Florida International U'niversity in Miami.
'(Tr. 21-22).
16-It was then that.he di..ccvered tlat F!H.'s letter to:t:he. NRC, dated Septeaher 20, 197'7, was rra.ssizg from the @&lie docunxnt room.
A copy of tlat letter was requested by the library and was-received on January 2',2, 1979 (Affidavitof Ren e-Daily dated March 16, 1979) s Petitiormr argued that having this "crucial der:ment" missing from the public donxaent, rocin for 13 mcnths constituted go+i choose fmz his untiraely filingof petition, to intervene (Oncavage revised Petitice dated March 18, 1979).
Staff indi.cated that press relea.es ugly are not.issued in connecti.'on with aIpplications f'r licerme amendamts..(Tr18-19).
But both Staff and Licensee pointed out; tlat failure to read the Federal R~e~ster does not constitute legal grcnmds for a showing of good. cause for untimelin'ess.
'Tr.
24, 29)-.
On this ground they arise. that, the good cause factor'eighs against Petitioner.
(Tr. 24, 30-31.).
Wa have seve syrnpathiy:Eor Petitioner's argument that the Federal 1~le 'stet is, fsom. the point of v:iasr of anny private <patinate, an "obsonte publication" (Tr.
1$)).; as tlat Board. observed during-tM Prehearing Conference, the "Federal Registex':is hardly a best seller."
(Tr.. 19) Be that as't,may,'owever, we are bound by the law in reachir~ our deci.sions.
The law required that the Nuclear RegQ.atty Ccarrrission publish once in,the-Federal H~es'ter notice of its intent:ion t:o act: on aIn application for an amendment to an operating license (The At:omic Energy Act, o:E 195<,
as amended, Sec. 189).,
Zhe Appeal, Board noted, in Jan~~or~;
that: "Zhe Federal Regist'er Act expr'esssly provides that such publication constitutes notice ito: 'all persons residing i
within the States of the Union.'4 U.S.C.
1508."
Island Li tin an (Jamesport Huclear Pmer Station, Units 1 and 2)
AIAB-292, 2 NRC 631 (1975).
Moreover, many years ago the U. S.
Supreme Court ruled that puhlioation in the Federal Roister gives legal notioe to all citizens'Federal Cr 2~ance Co
. v. Merrill, 332 US 380-388, 1947).
For this reason we est conclude that Kr. Oncavage was provided legal notice of the proposed steam generator repair.
Were there other factors which made it impossible for Mr. Oncavage to file on tim.
We think not.
He was in residence in Miami, Florida in Decenker 1977'when the Federal Register notice was published.
(Tr. 42).
He also was residing in Miami in the spring of 1977, when articles concmzdng the proposed steam generator repair at Turkey Point were published in the ML.eI ZmZn..(Tr, 31, 33),
K)reaver, in connection with his studies as an, environaental sciences student at Florida International University,, Mr. Oncavage has been using the Public Document Room in the University',s library since 1976.
(Tr. 22).
Although the letter from~ to NRC dated September 20, 1977 apparently was not filed properly in the Donxnmt Room until January 1979, the Steam Generator Repair Report was properly filed there in October 1977 and revisions to the report were filed subsequently in a timely fashion (Affi-davit of G. D. Whittier.dated March 8, 1979; Tr. 26).
Presumably Mr. Oncavage
~ F was using the document room after these documents had been filed there, but he either failed to study them or to react to them until January 1979 when
he was "simply informed by someone tlat there is a problem with the FPL
~
steam generators, (Tr., 22).,
ConsiM~g the facts that the Repair
,'eport was readily accessible to Nr. Oncavage and there wax newspaper.coverage about the proposed repairs i~ the spri~ of 1977, we believe that his faire
'o act in a timely fashion resulted ei.ther from a lack of trinely concern or a.failure to be sufficiently alex<.
Neither ezplanation, in our view, ~pro-~
vides an adequate excuse for his tardiness~
We ~find, therefore, that Petitioner has not sho'm gcxxl cause for fai.lure to file on t:ice; this factor weighs against granting him leave to intervene.
Availability of OI&er 14ans Whereby Petitio&'0 interest Will Be Protected - Factor~~ii i
Counsel far Petitioner argued that "there is certainly no other'orum available to this Petitioner to voice his cancerns and part:icipate in the adjudicatory process, because State and local govem~ts are preezpted from performing &actions tlat are exclusively those of the Nuclear Regulatory Ccxmkssion."
(Tr,. 46),.
Licensee argued ttwt a hearing was not necessary to protect the interests of the Petitioner; in t'he opinion of Licensee thi SGRR adequately accamaodates Petitioner's interests 'by providing inforrnatiai which answers the questions he raised in his petition.
gr. 53).
'lhe NBC
'taff, on the othe hmd, took the position t'hat it ~re not apparent that there would be other aa~s, such as State proceedings, by which Petitioner's radiological safety and environmental interests could be protected (Staff
Response
to Revised PeId.tiki dated April 6I, 1979, at 4; Tr. 58-59).
We agree with Petitioner and Staff.
Apparently there is no other forun in which Petitioner could protect. his 'interests.
In view of these considerations, we find that the second factor weighs in favor of Petitioner.
OPINION OF ELIZAHE'.TH S. 'K%KG::
Extent to Rich Petitioner's Participation May Reasonably Be ected to Assist. in 'Develo Sound Record Factor iii These caments are not meant to be in any way derogatory to Petitioner, his counsel or his proposed witnesses.
Time constraints and lack of specialized experience are often. controlling factors.
It is a serious determination to weigh whether. a petition should be "accepted in a situation which would otherwise not require a hearing.
The determination is important to the Petitioner, FPL and the NRC Staff and the Board.
~ colleagues, Dr. Paris and Dr. Hall, have each written separate opinions on Factor (iii).
As a member of a petition review board, I zn very concerned about an untimely Petitioner's ability to develop a "sound record."
I do not share Dr. Paris'pinion that this factor should weigh heavily in the Petitioner's favor.
Dr. Paris has taken. essentially non-specific "bare bones" contentions and has enhanced them with rather elaborate scenarios by delving into documents which are also available to Petit'ioner.
He has put aeat on the bones, Recogniziag that the Petitioner is not required to plead the evidence in drafting the contentions, I thirds a+re i.s required than asking a series of cLuestions without statics "the 'bases for each contention set forth with reasonable speciZicity."
(2 CFR 2;714(b)).
'M.s is the responsibility of the Petitioner.
It is my cpzmcn that Dr. Paris'abor has advanced iMormation which, if fully venta1ated:in an exxdentiaxy hearing, wou3.d re. ult i~ a more detailed record tjhan tjhat e:d.st~ng at the present time and thi would perhaps be in the public interest.
Considerirg the present siemtion, I cmuld lean slightly toward the petitioner in this matter on the assuaption that Ee., Pari. ',axments should be of value to the petitioner ifhe is able to proceed with relevant direct testinuny and, cross-ezamizaticn.
The separate opinion of Dr. Oscar H. lazis on Factor (iii) its attached to this Order.
A1so, see dissent~ Qiaian of Dr. David B. 'gall.
'Ihis ccncludes separate cpRnicn of Elizabeth S. Bowers.
The Extent to Which the Petitioner's Interest Willbe Represented B
Exi;st Parties - Factor (iv)
With regard to factor four, the extent to which Petitioner's interest willbe represented by existing parties, Petitioner takes the position that his interest willnot be protected ifhis petiticn is denied because there are no existing parties nor other petitions for leave.to intervene (Revised Petition to Intervene at 12).
- Licensee, on the other hand, takes the vs that this factor is not relevant in this case because no hearing is being conducted and other parties do notexist (Licensee's
Response
to Supplemental Submission at 18).
Staff noted that l4r. Oncavage failed to explain why his
- interest, as well.as that of the general public, willnot be effectively served by the NRC, which has the statutory responsibility for ensuring the public health and safety and protection of the environment..
Nevertheless, Staff recognized that there is room for the advancenent of individualized interests in these, proceedings, and concluded that the fun'actor weighs in favor of Petitioner.
(Staff Response to Revised Petiticn at 5).
The basic question to be anmared here, as we see it, is whether the fourth factor is applicable in a case in which no hearing will.be held if the late petitioner is denied leave to intervene. Ifit is applicable, then logic leads inescapably to the conclusion reached by Petitioner and Staff:
Petitioner's interest willnot be protected by other parties and therefore the factor weighs in his favor.
Xf the fourth factor is not applicable, on.the other hand, then it should receive zero weight.
22 Unfortemteely, NRC practice has failed to provide a clear-cut answer to the qua tion of Whether the fourth factor is,applicable when there are no intervenirg parties and. no petitioners ot9mr than the latecomer.
Different license~ bonds have decided this ~tjon in different ways. based on the'otal citnssstaxce in each case.
In'St'. ILun'Le and Tuxka~Point the Licensing Board decided that the fourth factor was not directly applicable, but nevertheless:it went on to-note. t3mt without the petitioner's admission there would be no other party to protect petitioner' interest..Flori&
Power & Light Co.,
(St.. Iucie Plants, Unit.
1 and 2'and Wakey Point, Units 3
~a~4;-,LBP-77-23, 5 NRC 7'89, 800, April 5, 1977';
In Viral C.
SumDew the Licensing Board acknowledged zxic~wtainty, as to tAe applicability of factor
,nuGIber (iv), but:it sa.id that if the factor were applicable it would bt given'ero weight because of the particular circumstances of that case (South
'arolina Electric and-Gas G>., et al;, Virpil.>>C.. Sumer Rmlear Station, Unit 1, 'LBP-78-6-,
7 NRC 2.09, 2,13-214, Febrimxy. 3, 1978).
In IQ~unee, on tLm other hand, the B~'d conclude,d
)Bent petitioner's int:crest: would not be represented absent a hear~~ and.decided t9mt the fourth factcn. weighed in.
s favor of admi.tting then as:intervenors.
QKsconsin Public Semri.ce ~p.,
et al, Kewaunee Nuclear Power Plan.t, LBP-'i'8-24, 8 NRC 78, 84, July 12, 1978).
We are:inst':ted,to balance Factors (i) through (v),, in addition to those set forth in.subsection (d) of 52..714.
We are not told to. cca~sider only applicable factors; we are.'Instnxcted to consider them all.
We beli.eve that the Comaission intended that all of the five factors should be balanced
- 23 in every case involving an untimely petition.
In the circumstances where denial of a late petition would result in no hearing and no parties to pro-tect the petitioner's interests, the question, "To what extent willPetitioner's interest be represented by existing parties?" met be answered,
'None".
The foregoing reasoni~ leads us to agree with Staff.
Absent a hearing at least st of Petitioner's interests willbe protected by no one.
We find, therefore, that the fourth factor weighs in his favor.
The Extent to Which Petitioner's Participation Will Broaden the Issues or Dela the Procee
'- 'Factor (v)
'Ihe fifth, and last, factor to be considered for an untimely petition for leave to intervene is the extent to which the Petitioner's participation willbroaden the issues or delay the proceeding.
Petitioner
,acknowledged that his participation would "create addi;tonal issues" but argued that "the benefit derived fran hearing opposing contentions far out-weighs any small time savings gained by exclusion of Kr. Oncavage."
(Supple-mental Submission at 8).
In addition, Petitioner suggested several procedures which could serve to expedite a hearing should one be ordered; we interpret these suggestions as offers to proceed in this manner if the petition is granted; (Ibid.),
Licensee argued that initiating a hearing at this late date would disrupt its "careful planning and effort and could, deny Licensee the ability to cczmence repairs without delay."
(Licensee's
Response
to Untinely Request for Hearing, dated March 9, 1979, at 9-10).
Such a delay would result in increased costs to Incan.'ee and potential for decreased'ystem rel'iability.'Ibid.;
- also, see Affidmritof H. D. 14antz, dated March 81979). Altho~
originally FPL planned to reps~ Und.t 4 beginnix~ in October 1978, it has changed its plans and does not: ezpect to start that repair before the fall of
'979.
(SER at 1-1).
'En respcms to questions from tM EMrd during the Special Prehearing (inference, Licensee indicated,its plum for initiating
'he work are indefirn.te.
(Tr. 77-79).
Ke. Coll stated, "We do not kn'ow'at'his time when it wi.ll be ri~p;need to make the repairs,"
and went on to explain that the company's object:ive is "to be rely to perform the repairs when it becoaes necessary or eccrianic Q.ly clesirable to do so,."
QM. 78).
According to Project Manager 01antz,
"*~~ thee eat date of init:iatie'x of the repair program wi.ll depend upon FH's analysis of the extent of degradaticm. of th existing steam generators, maintenance schedules and unplanned repair outages, re5.cling schedules, the erail-abili.ty of alternate oil fired generation, and other fact:or.s.
(iMitzAffidavit at, 3).
'Ihe NRC Staff, which originally opposed the admission of Pet$.tioner,~
said that the comzencezent of an equi.drntiary hearing at this st~e has "the real potential for considerable delay."
(Staff Re'sponse to ~rised Petition at 6).
Later,,when it conc'.l.ucled that Petitioner has set forth adeqt~e justification for hie unt:im line,ss, Staff ~zecamrended certain actions which could be taken to prevalent: unnecessary delay, should we grant leave to intervene.
(Staff Thsiponse to SuppletumtaL Submission at 3).
It willbe useful at this point to suamarize the history of this case.
The Licensee submitted'ts repair plan to the Cmmission in Septeaher 1977, at which time it planned to start the repair of Unit 4 in October 1978.
(SER at 1-1).,'Ihe Gmnission published the notice of aaendaent in Decenber 1977.
Subsequently, FPL pushed its schedule back'at. least 12 months; when the SER was issued in 1979 Licensee had deferred initiating repair of Unit 4 to the fall of 1979 or later.
'(Ibid.).
In May 1979 we were told at the Prehearing Conference that FPL still did not knm when it would be necessary or econaaical to initiate the repair program.
(Tr. 78).
Finally, the NRC Staff issued the SER on May 15, 1979 and the EIA on June 29, 1979.
In view of this history, of what significance is the 13-month delay attributable to the tardiness-of Hr. Oncavage in filing:his petition?
To begin with, we note that ifPetiticner had filed cn time and had been admitted in 1978, we still could not have, gone to hearing until sare time after Staff had issued the EIA.
Potomac 'Electric Power C
an (Douglas Point Nuclear Generating Station,.Units 1 and 2), AIAB-277, 1 NRC 539, 546 (1975); also see New En land Power an et.al.
(NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 292-294 (1978).
The late issuance of the ETA resulted frcm Staff's uncertainty about whether an EIA.or. an Envirorunental Impact Statenent (EIS) should be issued (Tr. 79-82).
Be that as it may, by early 1979 FPL was already 12 months behind its original.schedule through its own doing.
Viewed
- gf f~+
in light of this circunstance, and considering the fact that a hearing could not have been held until an appropriate.period of discovery had elapsed fol-lowing issuance of the EIA, Petitioner's delay of 13 months wanes. If Petitioner had been timely and had been admitted in 1978, as of this writing the parties probably would still be engaged in discovery.
%mt prejudice would acczue to LLcensee if the petition of Nr. Oncavage were granted?
Li.censee has told us of the possible conselqukndes of a delay in the repair:work..:Because it is useable to predi.ct when the'epair est be initiated>> however, it is not at all clear that a hearing at this late date would, in fact, delay the work itself.
Licensee has s'aid,,
further, that its c meful plarmzag and effort ~auld be disrupted by a hearing but it is silent with regard to the injury such disruotion would cause.
'We presume that it would include the expense and trouble of a hearing, conditions which might be izzposed be us as a result of a hearing, and the risk that~we might deny its request for. an amenchnent.
~inst,tMs concern, of course, must weigh the interests of the general public.
In conclu. ion, we believe that the Petitioner's participaticn would "create addi.t Lonal issues" and would delay the proce.diag.
The broadening of issues, in our xriew, could be ized the publi.c interest for the reasons we indicate in cazr'ep'arate opinions on Factor (iii).
With respect to..the delar of the proceedings,.we.belie~je that the effective delay of grantizg the petition would arrant to a few aanths, at most.
Finally,:it is far )aim apparent that-Licensee would suffer any injury fran a hearing other t2~ the inconvenience of having to modify it s
- plans, and we cmeider that 1~>>ws iz~rtant than the public interest -that could be served by ventilatirq~ s~ of'he issues raised by the Petitioner.
We find; therefore, tlat the fifth factor weighs against Petitioner, because
27 his participation willbroaden the issues and delay the, proceeding.
We
- believe, however, that in the circumstances of this case, Factor (v) weighs lightly.
Balance of the Five Factors We have found that Factor (i) weighs against the Petitioner; he has failed to show. good cause for his untimeliness.
Factor (ii), on the other hand, weighs in favor; there is no other forun in which his interests will be protected.
Factor (iii) in Dr. Paris'pinion weighs heavily in favor of the Petitioner since he believes his participation can reasonably be expected to assist in developing a sound record with regard to important issues which have been inadequately addressed, overlooked or ignored by FPL or the Staff or both.
Hrs. Bowers believes that Factor (iii) weighs slightly in Petitioner's favor for the reasons
- stated, suura.
Factor (iv) weighs in his favor, too; without his intervention there would be no hearing, no augmented
- record, and no part'ies to protect his interests.
Finally, Factor (v) weighs against Petitioner, but in the circumstances of this case we do not weigh it heavily; his participation willbroaden the issues and delay the proceeding, but a hearing on the issues would now be in the best interests of the public and the delay attributable to Petitioner's failure to file on time is of much less significance than might appear at first glance.
.This evaluation leads us to agree with Staff QKC Staff Response to Suppleaental Submission).
On, balance, the factors which must be ccnsidered for an untimely petition under 10 CFR (2.714(l) weigh in. favor of our granting his petition.
28-SZNG)DG To qual:Lfy for standing Peti'.tioner must, in addition to making showing of intere. t and justwfyirg his untimely petition, advance at least ane cognizable content:Lan, and set: fort:h the basis for-that contention with
.reasonable specif:Lcity,.
Of the nineteen contentions listed in the submission
~
-dated May 2, 1979>> we find,tAat renumbers 5, 6, 7, 1'2, and 18, when, cans:Ldered together with the bases set farth in. the S~plledental Subakssian of Juxe 5, 3/
1979, are acceptable, for litwgatian.
Cant;entian 18 questicam the adequacy of the method proposed for staring the steam generator asseablies
~A.th regard, to protectirg the asset'&lies fratIa storm floods. 'ontentions 5 and 12 question whether the occupation Q. ~msure during the repair, especially of transient
- workers, can be kept AT~A.
Cant:entions 6, and 7 question whether'he liquid effluent that wil:L be discharged as a result of the repair willmeet the
~
requirements of Parts l0, 50, 51 and IKPA.
In.addLtion, Staff believes that Contention 2, which asserts that an environmental impact statenent should be issued in connect:Lon. wii.th the repair, is acceptable, and we agree.
Fin@lly, we do not at this time rule on at~ of the ether contentions.
Whether any of them are acceptab:Le retoains to be determined in ~aur role as the Licensing Board appointed to h,ear this case.
Having recogtized that Petitioner's~ interest may be affected by I[
the autccme of th:Ls proceediing and 'haring accepted'me of'is contentions,
~
we find that Kr. Oncavage h m st mding as an intervenor.
Bath the Intervenor f.'1.,p" h'
dp'ly because of Dr. Paris'camideratian of tthei c6ntentians.
29 and Staff have suggested'hat the parties should meet to try to reach agree-ment on the other contentions, in the hope of rea~
agreement on admissibility or entering into a stipulation.
The parties should also try to agree on a realistic discovery schedule.
We urge the parties to meet as promptly as possib'le and request the Staff to keep the Licensing Board informed on progress.
THE AT(MIC SAFE%V AND LIGRISING BOARD Oscar H.
- aris, er e
S. Bcvers, azzman Dated at Bethesda, Maryland this 3rd day of August 1979.
The separate opinion cmcerning Factor (iii) of Dr. Paris and the dissenting opinion of Dr. Hall are attached and are a part of the Board's Order.
OPINION OF,DR.
PARIS:
I am i.n agreement with the, Chairman on all matters except the weight to be given Factor (ilia)), the extent to which, Petitioner's parti.cipation in this pdocteelding may reasonably b'e
,'xpected to assist in developing a sound record.
I weigh that.
factor heavily i'.n striking a balance of the five factors to be considered for an untimely petition, because I believe that 'the
'etitioner has advanced some important issues,and set forth their bases with suffi'.ci.ent specificity to significantly challenge the record in this case.
Ms. Bowers, on'the.'other hand, believes that Petitioner's contentions are "bare bones'n which I have put the meat.
It is certainly true that the filings of Mr Oncavage have been far less than perfect.
Nevertheless, in my view he 'di'd
'ucceed in advancing certain issues,~especially the one concerning'he proposed method for storing the ktkaal-g'enerator assemblies, that strike one forcefully with their importance.
Therefore, in dealing with the efforts of "Mr. Oncavage, I have been mi'ndful 'of' recent teaching of the Appeal Board in ',South Te'xas:
It is neither congressional nor Commission policy to exclude part:ies ~because the nice-ties of pleading were imperfectly observed.
Sounder practice is to decide i.ssues on their merits, not be avoid, t'.hem on techni-calities.
[Houst'on L'i~hti~n Q Pow'er Co.
et al.
(SoutE -Texas Project, Units 1 & 2),
2Kd&-549, Slip.Op. at 11 (May 18, 1979)].
To my mind the importance and immediacy of some of the issues raised by Mr. Oncavage override 'the deficiencies of his pleadings.
Be that as it may, I am less concerned now about his ability to assist in developing a sound record than I was prior to the Special Prehearing Conference.
While he came to us as a rank amateur, he has, I believe, demonstrated an ability and willingness to adapt to our procedural requirements.
In discussing the reasons that I assign a heavy weight to Factor (iii), I have,
- indeed, fleshed out some of the Peti-tioner's contentions; I cannot argue with the Chairman on that
.score.
My detailed'iscussion of some.of the contentions was originally developed in an effort to show my fellow Board members the importance of some of the issues raised by Mr. Oncavage.
I am including those details in this separate opinion because
- it[is]'he general duty of licensing boards to insure that initial decisions and miscellaneous memoranda and orders contain a sufficient exposition of any
.ruling on a contested issue of law or fact to en'able the parties,and'the Appeal] Board on its own review, readily to apprehend the foundation for the ruling.
[Northern States Power Com an (Prairie Island Nuclear Generating P ant, Units 1 and 2),
ALAB-104, 6 AEC 179, fn.
2 (1973)].
Extent to Which Petitioner's Partici ation ma Reasonabl be Ex ected to Assist in Deve o in a Sound Recor At the Special Prehearing Conference Petitioner argued that "he will be represented by counsel" and that "he probably will be able to present witnesses who have technical expertise and are able to address the issues presented for review before the Licensing Board."
(Tr. 47).
Licensee said that Petitioner
32 has failed to show how he or expert witness'es that might be presented by him could as. ist in develop:ing any x'ecord involving the reMis'ed'ontentions (Response of FPL to Board Order of May', 1979, dated May 21, 1979, at 1;0).
Licensee also claimed that commitments made to Mr. Oncavage by experts are tenuous a6d their areas of expertise do not coincide wi.th matters which Petitioner wishes to li.tigate.
I (Ibid.).
Staff said. that, given the '.status'f the record (fol-lowing the Prehearing Conference),
it'. did, n'ot believe that gadti-cipation by Peti.ti.oner could significtahtly contribute to thd development of the record (Staff Response t'o Board Order. of May 9,
- 1979, dated May 23, 1979,.at 1-2).
Staffent on to suggest, however, that if Petitioner were to i.dentify and give qualific'a-'ions of persons committed to testify on his behalf, and to 'in'di'-
'ate the contentions they would address, it would be able to Oak'e
'n informed evaluation of this matter.
(Ibid.).
Petiti.oner responded to Staff's. suggest:ion in hi.s Supplemental Submission dated
.June 5,
1979, telling us that Dr. Karl Z. Morgan, Neeley Professor of Nuclear Engineering at Georgia Institute of'echnology, is co~itted to testify witlh regard to potenti;al public health and safety dangers resulting from the possible escape of radioactive materials from the replaced steam generator lower assemblies, which are to be stored on the site, aniL also from the cc)oling canals,:into which radio-active. effluent resulting from the repa'ir w'ill be discharged.
(at 2-4).
Dr. Morgan is an :internationally'nown health physii-cist with more than 300 publ:ications in the field.
He is Pa~st~
President of the Health Physics Society and the International Radiation Protection Association, an emeritus member of the National Council on Radiation Protection, and a member of the International Commission on Radiological Protection.
(Id. at 2).
In addition, Dr. Walter Goldberg, Associate Professor in the Department of Biology at Florida International University, is committed to present testimony with regard to possible consequences to marine life and'he marine ecosystem of radioactive material which might escape from the stored replaced steam generator assemblies or from the cooling canals.
(Id. at 3-4).
Dr.
- Goldberg, who specializes in the study of radioecology of the marine environment, received his Ph.D. in Oceanography and is a member of the Health Physics Society.
Petitioner implied that additional witnesses would be made available to address meteorological matters but said that names of these witnesses were not yet available.
(Id. at fn. 2).
At the Prehearing Conference we were told that Dr. Raymond McAllister, Professor of Oceanography at Florida Atlantic Univer-sity, was also committed to present testimony on behalf of the Petitioner, but Dg. McAllister was not mentioned in the Supple-mental Submission of May 5, 1979.
(Tr. 51, 67).
Apparently Dr. McAlli'ster could present testimony on the effect of hurricanes on water systems of the region.
(Tr. 51).
Finally, it is now clear that Petitioner will be represented'y counsel.
At the Special Prehearing Conference he
was represented by an attorney who appeared
)For the limited purpose of that conference.
(Tr. 5,
- 55).
Subsequently, Dean Rogow served his Notice of Appearanc'e
'as'ounsel for Petitioner (see p. 6,
~su ra); in addi'.ti'.on, Joeli V. Lumer and Richard A.
Marshall, Jr., filed Notice. of Appearance on.Tune 20 and July 25>>
1979, respectively.
In Licensee's
Response
to 'Supplemental Petition, FPL argues at length to support its conclusion~ that "nothing in the Supplemental Submission indi.cates that'he Petiti.oner. is likely to make a contribution to a hearing, should one be conducted."'at 15; also see 2-13).
Licensee fo'cu8es on the three major areas discussed in the Supplemental Su'bmission:,
(1) on-site'toxage o'f the steam generatox loweissemblies in an. earthen floored facility, (2) occupational radiation exposure, and (3) release of radioactive effluent into~ the~ ceolirig canal system.
(Id. 2-13). I turn now to a considera'tion'f argument on these issues.
(1) On-site Storage of Steam Generat'or A>sembli'es With regard to i'ts plans t'o,'stbre the steam, generator assemblies, Licensee argues that Peti.t$ oher has failed to indicate'why its plans are inadequat'e,'ther than to point out that the assemblies will be stored in an earthen floored faci-lity.
FPL reviews the infoxmation contained in.the SGRR and
- SER, including the facts that the facility wi;11 have-a watertight,roof
'nd the steam.generator assemblies wi.ll be welded closed so that
35 "t:he steam generator itself will perform the function of radio-activity containment."
(Id. 9-10).
Licensee says that since Petitioner failed to take issue with these
- measures, we cannot judge that he is likely to make a significant contribution to the record with respect to this matter.
(at 10-11).
In the list of contentions submitted by Petitioner at the Prehearing Conference on May 2, 1979, Contention No.
18 questioned whether the "proposed floorless steam generator dis-posal building" would be in compliance, inter alia, of 10 CFR Parts 50 and 51 and the National Environmental Policy Act (NEPA),
but no basis.for the contention was set forth.
In his Supplemental Submission, howev'er, Petitioner
- says,
"<<+~Professor Morgan's testi-mony will deal with the potential radiation dangers stemming from the method. of on-site storage=and release of radioactive effluent.
That testimony will be elicited after laying a predicate built on meteorological data reflecting unique South Florida dangers caused by the possiblity of surging tides and winds accompanying a major hurricane."
(Supplemental Submission at 3, footnote omitted).
With respect to Dr. Goldberg's testimony, Petitioner
- says, "ob-viously the integrity of the stored steam generator seals will be considered.,
since leakage upon the earthen floor, washed and drained by underground flooding resulting from strong storm acti-vity, could seriously damage Biscayne Bay and inland areas."
(Id. at 4).
In my view the basis for Contention 18 is adequately set forth in these statements which suggest that the integrity of the proposed storage facility and. of the stored assemblies could
~- 36 be threatened by storm tides.,
Moreover, Petitioner referred to "'The Licensee's use of the 10.1 foot storm tide during Hurricane Betsy in 1965*~" in his Supplemental Submission (at p. 3, fn. 2).
Licensee responded by pointing out that the historical 10.1 foot st~)rm tide was men-tioned in the FSAR, not the SGRR nor 'SER,'hd went on to indicate
-that the design of t'e plant safety sys'tems is-based on a pre-dicted maximum flood stage,. resulting from the maximum probable hurricane of 18.,3 feet MLU.
(Licensee'.s
Response
to Supplemental Submission at 13, fn. 9; see Safety Evaluation for, the Gperating 1/
- License, dated March 14, 1972, -'Section 3.4)..
Vith a surge level of 18.3 feet, wave runup to above 22 feet is predicted.
(Ibid.).
The FSAR indicates that sustained winds ekceeding hurricane force (75 mph) can, be expected on an average
'of once every 7 years, and winds greater than 100 mph can be expected once every 25-30 years 2/
(FSAR, Section 2.6.6).
The proposed storage compound f'r the steam generator lower assemblies will be located in the laydo'wn area at the plant.'SGRR, App. A, "Responses to NRC Questions: of 1/9/78" at A-46-1).
1 At this stage of the proceeding, when the information on which we must base our opinion is not evidentiary I beIieve that we may consider any o:f the information which i~l contained in the existing record on Turkey Point, 'hi'ts' and 4.
2/
The chance of hurricane force winds occurring in any given year at Miami is 1 in 6, according to statistics presented in Cli-mates of the States, Vol., I (Gale Research Co., Detroit, T978; at ~7, Taaae ~.
Miar'ni i. only 25 miles north of the site.
The elevation of the laydown area is 5.0 feet.
(FSAR, Fig. 1.2-1).
The storage facility will be constructed of reinforced concrete walls which are designed as radiation shields, and it will have a
watertight concrete roof.
One end of the compound will be left
- open, presumably to provide access, and this end is to be closed with interlocking "stop logs."
(SGRR, App. D, "Responses to NRC Questions of 12/15/78" at D-1-1 and Fig. D.l-l).
The dimensions of the facility will be 110 feet by 60 feet by 17 feet high. '(ll.,
Fig. D.l-l).
There is no indication that the storage compound will be watertight to floods or that it will be designed to withstand stresses of storm surge, wave runup, or the impact of floating debris such as logs and broken timbers. 'Finally, I note that Licensee plans to store the steam generator lower assemblies for approximately 35 years before disposing of them off-site.
(SGRR, Section 3.4.4).
The foregoing information causes me to believe it reasonable to expect that the steam generator assembly storage compound with the enclosed radioactive assemblies would be sub-jected to hurricanes about five times during its functional life, and I would further expect at least one of those storms to have winds in excess of 100 mph.
Conceivably such a'storm could pro=
duce the projected 18.3 foot tidal surge with wave rumup to about 22 feet.
The scenario generated by these considerations is that the storage compound would be inundated in 13 feet of moving water with waves possibly breaking over its roof.
Thi's scenario brings many questions to mind.
Would the storage compound be watertight,
or would the assemblies a'.Lso be immersed in 13 feet of sea watex?
Would the walls withstahd the stress imposed by moving water
- and, wave action'?
Would the walll.s withstan'd the impact of floating debris thrown against them by waves?
Row bouyant would the sealed c, /
steam genex'ators by?
Night: they move and con. equently impact the wall from wi'thin the compound?
If'he walls should collapse, could the wind driven water move the assemblies
.~way from the com-pound?
The ability of the steam generator storage compound to withstand stresses imposed by hurricanes is not addressed in the 4/
- SGRR, the SER, or the Environmental 'Impact Appraisal (EIA).
Although the SGRR
- SER, and EIA do not address the type of severe hurricane-caused accident 'ju'st postulated, the SGRR and EIA do consider a breach of a steam generator.
seal while the assemblies are in t'e storage building (SGRR, 3ection 3.4.7; EM, Section 4.4).
This issue was raised by Petitioner in his Supple-mental Submission where he discussed Professor Goldberg's testi-mony.
(at 4).
Presumably
<<>>uch a leak could result from corro-sion caused by sea water comir<g into contact with the, assemblies during a storm flood.
- Noreover, on the basi, of the information available to this Board, it appears to me that the assemblies A rough calculation, based on the scaled dimensions of the steam generator assemblies illustrated in Figs. 3.2-4 and A.6-3 of,the SGRR and the-es't!imatedweight of 100 tons for an assembly given on p. 3-1 of the SGRR, yields an estima'ted specific gravity of about 0.9. If this value is reasonably
- accurate, the, assemblies could float.
4/
NRC Staff issued its Environmental Impact Appraisal (EIA) on June 29, 1979
[negat:Lve declaration pursuant to 10 CFR 551.5(c)J.
39 might become wet even absent a flood.
They are to be stored on bare earth which,almost certainly will contain moisture.
In the enclosed compound I would expect the moisture content of the air to be high enough to cause dew point to be reached from time to time as temperature fluctuated.
Consequently I would expect moisture to condense on the assemblies.
It is common experience to persons who live and work in the vicinity of large bodies of sea water that salt spray in the air causes rapid and extensive corrosion of unprotected metal, even if the metal does not come into direct contact with sea water.
Apparently the steam genera-tor storage compound will not be airtight.
(See SGRR, D.l-l). It seems reasonable to expect, therefore, that the seal welds of the assemblies may begin to corrode very soon after they are placed in the storage compound and that they could continue to corrode s/
more or less continuously thereafter.
The stored assemblies will be surveyed quarterly.
(SER at 2-16). It seems reasonable to postulate, there ore, that a breach of an assembly could occur and go. undetected for many days or weeks.
Licensee says that breaching the lower assembly need not be considered because it is highly unlikely that "more than an insi'gnificant amount of radioactivity would be dislodged from. a primary side surface" of an assembly (SGRR at 3-22a).
It points out that the majority-of the radioactivity in an assembly is on 5
The steam generator assemblies are fabri'cated from steel which is highly susceptible to corrosive attack by -chloride ions in sea water and salt spray.
40 the surfaces of the primary side in tive fcirm of a film oX metal oxi.des which is very adherent and very refractory.
(Ibid.).
For a leak to occur, not only must an assemb]Ly be breached, but this radioactive film must be dislodged.
(Xbl.d>).
According to the
- SGRR, the three mechanisms which could dislodge radioactive mat-erial within the assemblies are:
(1) thermal shock, (2) chemical/
corrosive attack, ajxd (3) mechanical shock.
(Ibid.).
FPT. dis-misses thermal shock because, temperature changes would occur too slowly to produce it, chemical/corrosive attack because the assemblies will be seal welded, and mechanicail shock because they
'w'ill be surrounded by the walls of the storage compound.
(Ibid.).
Licensee concludes,
-therefore, "that there are iso radiological accident considerations associated with on.ite storage."'Ibid.)
Apparently Staff was unwilling to reach such a conclu-sion.
In the EIA it di;d analyze the environmental impact of a postulated breach of the seal of one steam generator as,sembly during storage.
(Section 4.4).
In the analysis Staff assumed that the radioact:ive material on t'e primary side of the assembly would be dri.ed:in p]Lace so that any that mi.ght be dislodged would come loose in flakes or pi.eces.
Staff beli.eves that such d:Ls-lodged mat'erial.wou]Ld tend to remain trapped within the -"team generator because olE the complexity of the assembly's interna]Ls.,
Any flakes or pieces that might escape would, in Staff's view tend to remain on the surface of the earthen floor of the com-'ound, so that they "could be removed if necessary."
(Id. at 4-13).
For the purpose of its assessment, Staff assumed that only 0.1%
of the total activity (1400 Ci) estimated to be in one assembly would escape through a breach.
If this amount of activity were released to surface water by flooding, Staff believes that it would be diluted by the flood waters to within the maximum allow-
'"6/
able concentration of Co-60 in water.
- Further, the contaminated flood water would eventually be carried to Biscayne Bay where it would be diluted still more.
If, on the other hand, the released radioactivity entered ground water via the floor of the compound, it. would migrate downward until it reached the Biscayne aquifer.
(Ibid.). It would then migrate seaward with the hydraulic gradient.
Staff says that some of the radioactive material would become fixed by ion exchange as it dispersed through the soil and notes 7/
that the radioactivity would be diluted by ground water.
(Ibid.).
I do not agree with Licensee's conclusion that the Board cannot make the judgement that Petitioner's participation in this proceeding will be likely to make a significant contribution to the No explanation was offered by Staff for not considering the other corrosion products expected to be on the primary side of the steam generators (see Table 5.2-1 in the SGRR).
Pre-sumably it selected Co-60 because it will be the most abundant long-lived radionuclide present.
7/
Only radioactive material in solution could undergo ion
- exchange, and presumably most of the material released from a steam generator would be insoluble.
Fine particles could, of. course, become fixed in the soil by adsorption.
record (Licensee s Response to Supplemental Submission at 11).
Petitioner has alerted us to the fact that apparently neither Licensee nor Staff has considered the effect'r'a s'evere hurri-cane on the stored steam generator assemblies and suggested that a storm surge could'cause radioactive material to be released to the environment from the storage compound.
Staff's environ-mental assessment di.d address the impact of'eakage from one of the stored assemblies, but there will be silx assemblies in the compound when repairs have been completed an both units;. If more than one assembly leaked,;
would the t,ot:al. amount of radioactivity released still fall below the maximum allowable release permitted by 10 CFR Part 20?
Staff's analysis leaves other, related, ques-tions unanswered, in my opinion.
Could sea water or salt spray, or both, cause corzcision of the assemblies to occur mire or 16ssl continuously after they are placed in the earthen floored compound?
If so, could a leak or leaks go undetected for days,
- weeks, or months, in view of the fact that Licensee proposes to conduct surveillance on a quarterly schedule'?
I. Co-60 the only radio-nuclide that could be dislodged from the primary surface and leaked from the assemblies?
regarding the other.;?
If not, what justification is 'there fear d9.se I believe that tnese questions should 5e, addressed by Licensee and Staff.
The foregoing consideration has cor<vinced me that:the:
existing record is inadequate.
By raising the issue of whether the proposed plan for storing the steam generator assemblies will
43 provide adequate protection of them from storm tides, Petitioner has, in my, view, shown that his participation in this proceeding can reasonably be expected to contribute significantly to the record.
(2)
Occu ational Radiation Ex osure With regard to Petitioner's contention that Licensee has not shown that it will comply with the ALARA requirement of 10 CFR 5 20.1(c), Licensee argues that the ALQV concept "has been used by the NRC as a means of measuring environmental impacts and not as a limit upon an activity or operation."
(Licensee
Response
to Supplemental Submission at 6).
To support this argument, Licensee cites Florida Power
& ~Li ht
~Cpm an (St. Lucia Nuclear Power Project Unit R.
2, 5
NRC 1038), in which the Licensing Board reversed its own earlier decision to impose an in-plant occupational guideline dose limit in man-rems/yr as a condition of the construction per-mit.
FPL's argument appears to stand on a statement by the St.
Lucie Board saying, "The man-rem estimate is intended as a tool for comparison with other environmental impacts of the FES."
(Id. at 1064; see Licensee's
Response
to Supplemental Submission at 7).
The Board,
- however, went on to provide a detailed explanation of'hy it found the establishment of a man-rem/yr limit as a condi-tion of the construction permit inappropriate, and concluded that by requiring the Applicant to meet the requirements of Regulatory Guide 8.8, Staff could assure that the Applicant's occupation doses during operation were ALARA.
(Id. 1062-1064)
= 44 L
Thus, the St. Lucie decision est'e interpreted in terms of the contents of Regulatory Guide! 8.8, Information Rele-vant to Ensuring That Occupational Radi.ation Expo,sures at Nuclear Power Stations Will Be As Low As Is Reasonably Achievable (ALARA')."
There one finds the following statemkntt df 'policy: "Merely cont;r'ol'-
ling the maximum d!ose to ind:ividuals is riot sufficient; the col-lective dose to the group (measured in m'an-gems) also mu'st be kept as low as is reasonably achievable" (p. 3; emphasis added).
Clearly FPL's claim that only individual dose in rems
- is u. ed as a measure of occupational exposure for limiting activity, and that the man-rem concept is used only for measuring environmental impacts, is in error (Licensee's
Response
to Supplemental Submission at 6).
- Indeed, the Commission's regulatory p!ractich requires the Licensee to take measures to assure that the man-rem dose to the population 8/
of w'orkers who carry out the repair be AL'ARA.
Moreover, I doubt that it is FPL's intention to practice at Turkey Point what it preaches in this proceeding, f:or the SGRR says "Personnel exposures will be mainta:ined a.
low as is reasonably achievable (ALARA) in accordance with 10 CFR g 20.1(c) and the guidance pro-vided by Regulatory Guide 8.8*~~<" (S'ec'tion'.3,.5);
- also, Section 3.3.7 of the SGRR provides a man-rem 'as'sessment of the activities For the record, I also beli.eve that L!icinsee erred. in telling us that we could not impose
- a. man-r'em limit on occupational activities absent an exception gran'teIi try the Commission under 10 CFR 5 2;758 (see Licensee's Re'sponse to. Supplemental Sub-'ission at 8, fn. !5).
An extension o:f that argument would prohibit Licensing Boards from imposing any condition not explicitly provided for i.n the re'gulations.
0 associated with the proposed repair.
Licensee recognizes only one of the contentions submitted by Petitioner at the May 2, 1979 Prehearing Conference as referring to occupational
- exposure, namely No.
5, which asks "Whether the steam generator repairs proposed by the utility [will]comply with CFR Part 20 [or] NEPA<<<<*<<?"
(Licensee's
Response
to Supplemental 9/
Submission at 3-4 3 I agree with FPL's interpretation of this contention, but l also read Contention 12 as referring to occupa-tional exposure (Appendix to Transcript of May 2,,
1979 Prehearing Conference at 4).
That contention asks, "whether the use of tran-sient workers with unknown radiation exposure histories is in con-pliance with 10 CFR Parts 20, 51 or NEPA?"
A basis for this con-tention is set forth by Petitioner on p.
3 of his Supplemental Submission where he tells us that Staff's acceptance of FPL's estimated 1300,man-rem exposure per unit as tolerable will be challenged by the testimony of Dr. Morgan, who Petitioner says recommends a 500 man-rem limit.
'Th'e NRC Generic Estimate of collective, occupational whole body dose expected from a steam generator repair is 3380 man-rem.
9 Licensee also observes that Contention 1 raises the question of occupational exposure in the context of,continued operation of the plant.
(Licensee's
Response
to Supplemental Submission at 4, fn. 2).
I agree with Licensee that this matter is outside the scope of this proceeding because it does not deal with an issue related to the proposed steam generator repair.
= ~46 (SER at 2-9, EIA at 4-2).
The difference between. FPL's estimate, 1300 man-rem, and the generic estimate results from (1) the u. e of lower dose rates mea.ured at Turkey Point -than those used in the generic estimate and (2) the use, by FPL of more dose reduc:ing'easuies than were considered in the generic estimate.
Staff i
believes that the FPL estimate is more realistic for the Turkey Point steam. generator repair than the generic estimate.
(E'IA,at 4-3).
Staff reviewed Licensee's documentation of the considera~
tion given to the guidance provided
'by Regula ory Guide 8.8 and concluded that FPL's effort to maintain occupational doses kUBA are acceptable.
(S]ER at 2-10 and 2-11,
]EIA at 4-2).
With regard to E?etitioner's Contention No. 12, whtich raises the.question of whether the u'se'f transient workers with unknown radiation exposure histories will be in compliance with 10 "CFR Part 20, I am prompted to take notice of the publication on June 6,
- 1979, by the Commission of an, amendment to Part 20 which is designed to control the radiation exposure of transient workers.
(44 FR 32249).
That: amendment becomes effective on August 20, 1979. It wi:Ll require Licensee, to obtain information from each prospective emp.~Loyee as to the occu'pational dose rece:Lved by'he 'person during the cui.rent calendar quarter from sources outside Licensee's contro.L, if there is a chance that the prospec-tive employee may receive a dose in excess of 25>.'f the standards
" 10/
specified in 10 CFR g 20.101(c)
If a worker has received any That threshold dose to the whole body would be 25% -of 1-1/4 rem, or about 0.31 rem.
occupational dose during the quarter, then the total occupational dose to the whole body-which the prosp'ective employer could permit would be determined by the limits set forth in
$ 20.101(a) and 5 20.101(b)
- Thus, the maximum:t'ot'al whole body dose that a worker could receive in one calendar quarter would be 3 rems.
The time period within which the steam generator repair is to be carried out, 6 to 9 months, and the foregoing requirements of 10 CFR Part 20 will make it necessary for Licensee to hire a large, number of workers to complete the repair.
(See SER at 1-1).
If, to be conservative, one assumes that one unit can be repaired in 6 months and that the total group exposure will be 1300 man-
- rems, Licensee would have to be able to hire a minimum of 217 workers, all of whom report to work with (1) zero. exposure during the cal'endar quarter in which the repair job is initiated and (2) an accumulated occupational whole body dose which is at least 6 rems less than the limit calculated according to the formula 11/
set forth in 5 20.101(b)(2).
Licensee has estimated that the repair will require about 300 workers (SGRR at 6-1, Section 6.3).
Presumably this estimate did not account for the recent amendment to Part 20 which controls the total occupational dose of transient workers and therefore the total number of workers that will be required could be greater than 300.
Will it be possible for Licensee to recruit the number of skilled workers required for the 11 This section of Part 20 sets the limit for accumulated whole body dose at 5(N-,18), where "N" equals the individual's age in years.
48 job so as to be assured of complying with the standards set forth in 10 CFR
$ 20.101?
I believe that th9:s question should be addressed by Licensee and Staff.
Is. the estimated group exposure, 1300 man-rem, ALARA zg/
pursuant to 10 CFR tI 20.1(c)?
Staff believes that it is.'SER at 2-10 and 2-1,1).
Petit:Loner has indicated his disagx'cement'Supplemental Submission at,3).
Is khiIs issue 1.itigable, and, if so, has Petitioner shown that:Lt can ~be rea'sonably expected 'that his participation wi.ll contribute significantly to the record?
First, I note that any decis:ions with. regard to whether occupa-
'ional exposure is CLARA, whether Staff's, Petitioner'-s, or this Board's, must be reached subjectively.
There are no guidelines for evaluating occupational expo. ure such as the guidelines for evaluating radiati.on expo ure to the gdnelral public that are s'et'orth in 10 CFR Part, 50.
In Pra'ir'ie'dlalndi and'ermont Yankee (Northern State.
Power Co.
and Vermont Yankee Nuclear Power Corp.,
ALAB-455, 7
NRC 41, 57-59) the Appeal. Board looked at this problem and in conclusion said, In sum,, whateve." might be 'the meri.t of sic!ply carrying over th@ Append'x I mone-tary values into Part'20, it'annot be done unless and until'the 'Commission sanc-tions it.
0ur point here, once again, is that, whether or not tthsIt co'urse is fol-lowed,, there appears to be manifest Licensee believes that the g.-oup exposure could range from 650 to 1450 main-rem per un:Lt, because of uncertainties with.
regard to man-hour requirements and radiation fields.
(ISG83l, Section 3.3.7.1)
49 justification d'or provid'ng utilities, the Staff, the concerned public, and the adjudicatory boards with considerably more guidance than is now contained in Part'0 with respect to how the ALARA standard, should be applied for the pur-poses of occupational exposure.
(Id. at 59).
Given the uncertainty which surrounds the issue of applying the ALARA principle to occupational exposure, I believe that the issue deserves litigation..
In addition, I believe that the testimony which would be developed in connection with Peti-tioner's Contention Nos.
5 and 12 can be expected to contribute significantly to the record with regard to whether the radiation exposure of transient workers and the total occupational exposure of the group of workers will comply with the Standards contained in 10 CFR Part 20.
I conclude, therefore, that there is reason-able expectation that Petitioner's participation will assist in developing a sound record with regard to occupational exposure.
(3)
Release of Radioactive Effluent Into the C'oolin Ss'tern In Contentions 6 and 7, Petitioner questions whether primary coolant and laundry waste water which must be stored or dischar ed as a result of the steam generator repair will comply with the requirements, of Parts 20, 50, 51, or NEPA (Appendix to Transcript of the May 2, 1979, Prehearing Conference at 3).
Fur-ther, in the 'Supplemental Submission Petitioner cantends that hurricane tides surging over the cooling canal system could result J
in the escape of radio'active materials into the surrounding
environment.
(at:3->w),.
Li.censee responded by telling us that any liquid effluent released into the canal'ystem will be controlled so as to meet the Turkey Point Technical Specifi.cations under t:he plant's Operating Licenses.
(Licensee's
Response
to Supplemental Submission at 12).
According to the
- SE1R, the projected relehshs due to the repair program are expected to be well within the plakt~s
'echnical Specification limits.
(at 2-13).
staff added,
- however, that it had not completed i.ts evaluation 'of the Appendix I informa~
tion provided it by Licensee.
(Ibid.).
To the extent that Staff has not determined whether the current Technical Specification" will be reduced as a result of its review of the Appendix I evaluation, it appears that ventilation of the i.ssues raised by Contentions 6 and 7 would contribute to the soundness of the record.
If that situation. has
- changed, this matter.
could be settled by stipulation or summary di.smissal.
I conclude that the, record with regard to the relents~ 6f radioactive material to the cooling canal system is incomplete.
Therefore I find that there is reasonable expectation that Peti-tioner's participation wi.th respect to his Contentions 6 and 7'ould assist in developing a sound record.
Conclusion with IR~e~~ard to I'ac'tor'i:ii)
Based
- on. the foregoing consideratioris, I conclude that the participation in this proceeding by Mr.. Oncavage can reasonably be expected to contribute significantly to the development of a sound record.
Accordingly, I find that the third factor weighs heavily in his favor.
51 Dissent b
Dr. David B. Hall The question before this Board is not should the peti-.
tioner be admitted to a hearing, but rather should a hearing be convened to resolve contentions advanced by the petitioner.
I submit that an affirmative finding on the latter question requires a stronger showing than has been put forth by Mr.
Oncavage.
I believe the request for a hearing by Mark P.
Oncavage should'e denied.
The petition for a hearing is admittedly very late.
The sole justification for lateness is that crucial documents were missing from the local Public Document Room.
The crucial document to which Petitioner refers is a letter from FPL to NRC transmitting a proposal for replacement of deteriorating steam generator assemblies.
Petitioner does not explain the "crucial" nature of the letter nor why it was needed to,initiate his petition for a hearing.
Petitioner has not demonstrated to,my satisfaction that his participation in a hearing will make a useful contribution to the record.
He has not controverted any fact, statement or conclusion made by the Staff in its SER or by the Licensee in its SGRR.
In his original (revised) peti'tion to intervene and
52 in subsequent submissions, Petitioner has posed questions ask-ing for information: without claiming that the information sought was not available to him ox that there were omi sions in the Staff or Licensee documents.
Many of the questions posed by the, petitioner as his "list of contentions" have reference to the compliance, or lack thereof, with the, F'ederal Water Pollution Contx'ol Act (FWPCA) and, as such, is not within the jurisdiction of the NRC.
Other questions imply that an environmental impact statement (EIS) should be prep, ared for the proposed action.
No basis is-given by the petitioner for. such a requirement.
At the time o:E the prehearing conference, the Staff counsel discussed the status of the environmental evaluation (Tr. 79).
Although a detex~ination as to the form of i.ts appraisal was not available at that time, the Staff subsequently (June 29) 1979) published an Erivironmental ImpactAppraisal and a detex'-
mination that an EI.I need not 'be prepared.
This conclusion was challenged by the petitioner in. advance during the prehear-ing conference (Tr. 61, 84).
The Staff ambivalently concludes that "... contention 2'., which assert.
that an environmental impact statement sht:auld issue in connecti.on with the proposed
- action, forms the basi.s for an acceptable contention...." I do.not agree.
There i.s nothing in the record. to support a
53 conclusion of maj or impact on the environment within the meaning of 10 CFR 51. 5 (a) (10).
The supplemental submission of petitioner Mark P.
Oncavage informs us that Professor K. Z. Morgan will address the occupational radiation exposure problem. created by the proposed repairs.
In this submission, Petitioner compares an estimated 1300 man-rem exposure with Professor Morgan's recom-mendation of 500 man-rem contained in a recent New Scientist
.article.
This is either a careless misquotation or a deliberate distortion.
Dr. Morgan,.in the cited article, proposes "500 man-rem er 1 000 me awatt electrical ears"
[emphasis added].
Licensee has estimated (and the Staff has accepted the esti-mate) that the repair of the steam generators will allow the occupational dosage to be reduced from its present experience of 500 man-rem per year to 100 man-rem per year.
Professor Morgan is a well known authority on the effects of low level radiation,, but that is not at issue here, nor is the effect of radiation on. marine life, the specialty of Professor Goldberg.
The regulations in 10 CFR 20 give the Commission standards for protection against the effects of radiation.,
Licensee has stated its intention to comply with the requirements of the Commission Regulations including the provisions to maintain exposures as low as reasonably achieva-ble (ALARA).
Absent a specific challenge, I see no reason to
54-question the full compliance on the part 'of the Licensee with the applicable Regulatory Guides and Commission Regulations.
In con. idering the criteria for granting untimely peti-'ions for interventi.on, as promulgated in 10 CFR 2.714(a),
my analysis of: the record. before us can be summarized as follows:
(i)
Good cause, if any, for failure to file on time.
Petitioner has not given any good cause for his untimely filing.
(ii) Availability of c)thex means of protecting interest.,
Petitioner has no othex -forum tio protect his-interests.
(iii) Extent to which peti.tioner may be expec.ted to assist i.n developing a sound recor'd.
The pxincipal documents comprising the record of'his proceeding, viz.,
the SE1<,
S(ERR and EIA, give evidence of the concern on the part of the. Licenseie and of the Staff fox protection of the environment and fox'imiting occupational exposure'n accordance with 10 CFR 20.1(c) (ALARA). It is o&vijouLs that the record can be expanded but nothing which has been submitted by the petitioner c.onyinces me that hi.s partic:Lpation will improve the. record.
In my opinion, the record as i.t stands is. suffi.ci.ent to suppoxt the con-clusion arrived at by.the Staff in its Safety Evaluation
.(p. 4-1)
55
.(iv)
Representation of petitioner's interest by existing parties.
This is not applicable since there is no hearing yet, thus no parties.
(v)
Broadening the issues or delaying the proceeding.
If a hearing were granted, the Board would have discretion to admit only those contentions it re-gards as valid, thus the extent to which the issues are broadened will ultimately rest with the Board. It is possible that a hearing may result in a delay of the Licensee's current schedule but, as of August 1,
- 1979, that schedule is not known to the Board.
I would deny the late petition to intervene by Mark P.
Oncavage as being without substance or merit.
Davi B. Hal August 3, 1979
Oi
~ 1'
UNITED STATES OF:AMERICA NUCLEAR REGULATORY CESSION
)
,. )
FLORIDA PprKR A%) LIGHT COMPANY
)
)
(Turkey Point, Units 3 and 4)
)
)
)
)
)
Docket No. (s)', 5p-25OSP 50-251SP CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document(s) upon each person designated on the official service list compilecX, by-the Office of tne Secretary of the Commission in this proceeding in accord'ance vith the reauirements of Section 2.712 of'0 CFR. Parr:. 2 Rules o'. Practice,,of the Nuclear Regulatory Commission's Rules,.and Regulations.
Dated. at Vashington, D.C. this day of
/
197+.
Office/o'f the Secretary, of the+oamf ssion
0
UNITED STATES OF ~~%RICA NUCLEAR REGULATORY COHIISS ION.
In the Hatter of
)
)
FLORIDA POWER AND LIGHT COMPANY
)
)
(Turkey Point, Units 3 and 4)
)
)
)
SERVICE LIST Docket No.,(s); gp pgpSp.
50-M~1SP Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. David B. Hall 400 Circle Drive Santa Fe, New:fexico 87501 Dr. Oscar. H. Paris Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Counsel for NRC Staff
- 0. ice of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Michael A. Bausex, Es;g.
Lowenstein, Ne~~, Reis',
Axelrad and TcQ.l 1025 Connecticut: Avenue, K.V'.
Washington, D.C 20036 Mr. Hark P. Oncmmge 12200 S.W. 110t2a Avenue.
Miami, Florida.
93176 Norman A. Coll, Zsq Steel Hector 6 Davis; 1400 S.E. First. Xatiana3. BanL E~cLing Miami, Florida.
- 33133, Martin H. Hoddez Eae.
1131 N.E. 86th Rtreec Miami, Florida; 93138
">o"ida Power and Light Co@'pan~'.;T.":
D
. Robert E. Uhrig Vice President P.O.
Box 529100 Miami, Florida 33152 Joel V.Lumer,, Esp.
245 Catalonia-Avenue Coral Gables,, FI~oida 33134
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