ML17340A980

Memorandum of Law Supporting Motion for Summary Disposition of Contention 5 Re full-flow Condensate Polishing Demineralizing Sys.Certificate of Svc Encl.Related Correspondence

ML17340A980
Person / Time
Site:	Turkey Point
Issue date:	04/06/1981
From:	Coll N FLORIDA POWER & LIGHT CO., STEEL, HECTOR & DAVIS
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML17340A977	List: ML17340A975 ML17340A978 ML17340A979 ML17340A980
References
ISSUANCES-SP, NUDOCS 8104140513
Download: ML17340A980 (24)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOAFD In the Matter of ) Docket Nos. 50-250-SP

) 50-251-SP FLORIDA POWER 6 LIGHT'OMPANY )

)

(Turkey Point Nuclear Generating ) (Proposed Amendments to Units 3 .and 4) ) Facility Operating License

) to Permit Steam Generator Repairs)

LICENSEE'S MEMORANDUM OF'AW IN SUPPORT OF MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 5 cg ucg9~

INTRODUCTION 6~~

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q 6'QQC Contention 5 provides:

OC In evaluating the steam generator repair, the following has not been considered:

a. the cost of a full-flow condensate polishing demineralizing system;

b. the effluent release from a full-flow condensate polishing demineralizing system; or

c. the environmental degradation caused by a full-flow condensate polishing demineralizing system.

il il II I

As set forth in pages 8-10 of the attached affidavit, the NRC Staff has given adequate consideration to the economic and environmental costs of the full-flow condensate polishing demineralizing system in Sections 4.2 and 6.0 of the Draft Environmental Statement (DES)(NUREG 0743) and in Sections 4.2 and 6 of the Final Environmental Statement (FES)(NUREG 0743).

In addition, the NRC Staff has given adequate consideration to the effluent release from and any environmental degradation to be caused by the condensate demineralizer system in, Section 4.3.2 of the DES, in Sections 2.2 and 3.2.4 of the Updated Safety Evaluation Report (SER) (NUREG 0756), in the NRC Staff's 4

"Assessment of the Impacts of the Steam Generator Repair Program at the Turkey Point Plant on Threatened or Endangered Species", pp. 6, 7 (November 1980), and in Sections 4.3.3 and 4.3.4 of the FES.

SU%CARY DISPOSITION PROCEDURES Licensee respectfully submits that the Board should grant summary disposition of Contention 5. The Commission s regulations provide for summary disposition of all or any part of the matters involved in a proceeding, upon the motion by any party to .the proceeding. 10 CFR g 2.749(a). A party is entitled to summary disposition in its favor if the record and

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the moving papers, including supporting affidavits, show that

there is no .genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. 10 CFR g 2.749(d). This procedure has been sanctioned in proceedings involving amendments or modifications of existing operating licenses, as in the instant case. Bee, e.cC., Boston Edison Com an (Pilgrim Nuclear Power Station, Unit 1), ALAB 191, 7 AEC 417 (1974).

Summary disposition procedures provide "an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues." Houston Li htin and Power Com an (Allen Creek Nuclear Generating Station, Unit 1), ALAB 590, 11 NRC 542, 550 (1980) . These procedures are analogous to the summary judgment procedures authorized under Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Com an (Joseph N. Farley Nuclear Plant, Units 1 and 2), ALAB 182, 7 AEC 210, .217 (1974).

Summary judgment is properly granted when the record establishes that there is no genuine issue as to any material fact concerning a dispositive issue and that the moving party is entitled to judgment as a matter of law. Sartor v. Arkansas 1 . ~ >> ~ ~ 6 ~ 6 7 (1- 44):

411 F.2d 705, 709 (D.C. Cir. 1969); Underwater Stora e,

~h'ameron, Inc. v. United States Rubber Com an , 371 F.2d 950, 953 (D.C.

Cir. 1966), cert. denied, 386 U.S. 911 (1967).

il The purpose of the summary disposition rule i;s " not to cut litigants off from their right of trial if they really have evidence which they will offer in a trial, it is to carefully test this out, in advance of trial, by inquiring and determining whether such evidence exists." Gulf States Utilit Com an (River Bend Station, Units 1 6 2), LBP 75-10, 1 NRC 246, 247-48 (1975), ~citin Whittakei v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940) .

The Commission's Regulations make clear that " . . . a party opposing the motion may, not rest upon the mere allegations or denials of his answer . . . " and that. he " . . . must set forth specific'acts showing that there is a genuine issue of fact. If no such answer is filed, the decision sought, if appropriate, shall-be rendered." 10 CFR g 2.749(b). Mere allegations in the pleadings are not sufficient. to establish the existence of a triable issue of ma'terial fact. Gulf States Utilities Com an , ~su ra at 248.

NRC STAFF HAS FULLY COMPLIED WITH NEPA STANDARDS IN CONSIDERING THE CONDENSATE DEMINERALIZING SYSTEM As set forth in the attached affidavit, the NRC Staff has fully complied with the standards of the National Environmental Policy Act of 1969 (NEPA) in considering the condensate polishing demineralizing system at Turkey Point.

0 It has been generally held that the environmental review mandated by NEPA is subject to a "rule of reason" and thus need not include all theoretically possible environmental effects arising out of an action, but rather is limited to those environmental effects which are reasonably foreseeable. Lone Island Liqhtin Com an (Shoreham Nuclear Power Station), ALAR 156 6 AHC 831 f 836 f 838 853 (1973); Maine Yankee Atomic Power C~om an (Maine Yankee Atomic Power Station), ALAS 161, 6 ABC 1003, lOll (1973)-  ; Northern States Power Com an (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB 455, 7 NRC 41, 48 (1978); Public Service Com an of Oklahoma, (Black Fox Station, Units .1 and 2), ALAB 573, 10 NRC 775< 779 (1979),

vacated in art, CLI 80-8, ll NRC 433 (1980)'. Under NEPA, the NRC is required to "make a good'aith effort . . . to describe the reasonably foreseeable impact" of a proposed action. toncO Island Li htin Com an , ~su ra at 838; Maine Yankee Atomic Power

~corn an , ~su ra at 1011. The agency is not reguired to consider "mere possibilities unlikely to occur as a result of the II proposed activity." Lon Island Li htinu Com an , ~su ra at 836;

/Petition for review denied sub,nom., Citizens for Safe Power v. Nuclear Regulatory Commission, 524 F.'2d 1291 (D.C. Cir.

1975').

Maine Yankee Atomic Power Com an , ~su ra; see also Northern States power Com an , ~su ra at 49.

.The NEPA "rule of reason" standard, as applied in NRC proceedings, draws direct support from judicial interpretations of NEPA. See,. e.cC., Public Service Com an of Oklahoma, ~su ra at 779, citinci Natural Resources Defense Council, Inc. v.

Morton, 458 F.2d 827 (D.C. Cir. 1972) . In Morton, the Bureau of L'and Management issued a Draft Fnvironmental Impact Statement (DEIS) and a Final Environmental Impact Statement (FEIS) in connection with a general oil and gas lease sale of tracts of submerged lands off the coast of eastern Louisiana. Id. The court adopted the rule of reason test. Id. at 834. Although the court in Morton primarily addressed the consideration of alternative courses of action under NEPA, the rule of reason test is not .limited in its application to evaluating f k h . ~

,alternatives,; it applies to the entire NFPA evaluation process.

bl' 779; Suffolk v. Secretar of Interior, 562 F.2d 1368, 1375 (2d Cir.

1977); Scientists Institute for Public Information, Inc. v.

Atomic Ener Commission, 481 F.2d 1079, 1092 (D.C. Cir. 1973) .

The court in Morton stated that the complying agency may limit its discussion of environmental impact to a brief statement, when that is the case, that there is no effect on the

environment or that the effect is simply not significant. 458 F.2d at 834. The court further stated:

We reiterate that the discussion of environmental effects of alternatives, need not be exhaustive. What is required is information sufficient to permit a re'asoned choice of alternatives so far as environ-mental aspects are concerned.

458 F. 2d .at 836.

and Furthermore, the requirement in NEPA of discussion as to reasonable not require "crystal ball" inquiry.

alternatives'oes 458 F.2d at 837.

NEPA does not impose minimal environmental standards which must be satisfied as a condition precedent to licensing.

On the contrary, NEPA requires a balancing of, costs and benefits rather than a measuring against absolute environmental standards. Maine Yankee Atomic Power Com an , ~su ra at 1007; Public Service Com an of New Ham shire (Seabrook Station, Units 1 and 2), ALAB 422, 6 NRC 33, 43 (1977). Thus, consideration under NEPA will be upheld as adequate if it has been compiled in r

good faith and sets forth sufficient information to enable the decisi'on-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be

derived from the proposed action. Count of Suffolk v.

Secretar of Interior, 562 F.2d at 1375; see also Environmental Defense Fund, Inc. v. Cor s of Enqineers of U.S. Arm , 492 F.2d 1123, 1136 (5th Cir. 1974).

In FPL' view, consideration of the condensate demineralizing system should not be required in connection with the instant proceedings to obtain a license amendment for the steam generator repairs at Turkey Point. Because the demineralizers're not part of the repairs, any consideration of the demineralizer is beyond the scope of the amendment proceedings. See. Detroit Edison Com an (Enrico Fermi Atomic Power Plant, Unit 2), LBP 78-11, 7 NRC 381, aff'8 ALAR 470, 7 NRC 473 (1978).

Nevertheless, there is no question in the instant case that the NRC Staff's consideration of the full-flow condensate polishing demineralizing system is sufficient under the aforedescribed firmly established legal standards for NEPA.

CONCLUSIONS The attached affidavit fully supports Licensee's position that the costs, effluents and environmental effects of

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the full-flow condensate polishing demineralizing system have been adequately considered and,shows that there is no genuine issue as to any material fact. Therefore, summary disposition of Contention 5 should be granted in Licensee's favor.

Respectfully submitted, STEEL HECTOR 6 DAVIS Co-Counsel for Licensee, Florida Power 6 Light Company 1400 Southeast First National Bank Bui ding Miami, Fl ,ida 33131 (305) 577 2863 Date: April 2, 1981 By:

orman A. Coll

~ ) ~

UNITED STATES OF 'AMERICA NUCLEAR REGULATORY COMMISSON BEFORE THE ATOMIC. SAFETY AND LICENSING BOARD Docket Nos. 50-250-SP 50-251-SP IN THE'ATTER OF )

FLORIDA POWER 6 LIGHT COMPANY ) (Proposed Amendments to (Turkey Point Nuclear Generating ) Facility Operating Units Nos. 3 and 4 ) License to Permit Steam

'Gener a tor Repair.s)

CERTIFICATE OF SERV.-ICE I HEREBY CERTIFY that copies of Licensee's Motion for Summary Disposition of Contention 5, Joint Affidavit of A.J. Gould and J.M. Pugsley in Support o'f Motion for Summary Disposition of Contention 5, Statement of Material Facts as to Which There is No Genuine Issue to be Heard, (Contention 5), and Licensee's Memorandum of Law in Support of Motion for Summary Disposition of Contention 5 were served on the following by deposit in the United States mail, first class, properly stamped and addressed, on the date shown below:

• Marshall E. Miller., Esq., Admini'strative Judge Chairman, Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Dr. Emmeth A. Luebke, Administrative Judge Atomic Safety and Licensing Board Panel QQCKBTED U.S. Nuclear Regulatory Commission ll V"NR>

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Washington, D.C. 20555 APR 6198t 5

Office cf '.t:e Secrehry Dccftefin~ 5 Service Branch

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• Dr. Oscar H. Paris, Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Mark P. Oncavage 12200 S.W. 110th Avenue Miami, Florida 33176 Harold F. Reis, Esq.

Steven P. Frantz, Esp.

Lowenstein, Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

• Steven C. Goldberg, Esq.

Office of, the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Office of,the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555

+Burt Saunders, Esp.

Assistant Dade County Attorney 1626 Dade County Courthouse Miami, Florida 33130

• Henry H. Harnage, Esq.

. Peninsula Federal Building 10th Floor 200 S.E. First Street Miami, Florida 33131

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• Neil Chonin, Esq.

1400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 STEEL HECTOR & DAVIS Co-counsel for Licensee 1400 Sout east First Nation Bank Building Miami, F rida 33131 Telepho (305) 577-28 3 By A. Co11 April 2, 1981

• Additional Service By Hand or Courier