ML17340B080
| ML17340B080 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 04/27/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML17340B081 | List: |
| References | |
| NUDOCS 8104280065 | |
| Download: ML17340B080 (30) | |
Text
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u4/27/81 UNITED STATES OF AIIERICA
'PR
/d 71981 se't-NUCLEAR REGULATORY COMMISSION
. ~Tgg, inCAPAPANS u.S.
EEUCEEAdt~~'~
/p BEfORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of fLORIDA POWER AND LIGHT COMPANY
)
(Turkey Point Nuclear Generating
'I Unit Nos.
3 and 4)
Docket No 0-25
- 51 (Proposed Amendments to Facility Operating Licenses to Permit Steam Generator Repair)
NRC STAFF OBJECTIONS TO -PROPOSED AMENDED CONTENTION 1
AND THIRD MOTION FOR
SUMMARY
DISPOSITION I.
INTRODUCTION The NRC Staff hereby moves for summary disposition of Contentions 1-1/
and 4(B).
The Staff opposes the Intervenor's April 20, 1981 proposed amendment to this contention for reasons given below.
The Staff submits P~,p that the Final Environmental Statement (FES)
(NUREG-0743) and attached 1/
Contention 1 states:
Section 102(2)(C) of the National Environmental Policy Act (42 U.S.C.
54332(2)(C)
(NEPA) or 10 CFR 551.5 requires the preparation of an Environmental Impact Statement prior to the issuance by the Nuclear Regulatory Commission of amendments to the operating licenses for Turkey Point Units Nos.
3 and 4 (Facility Operating Licenses Nos.
DPR-31 and DRP-41) authorizing the Licensee to repair the steam generators now in use in each facility.
2/
Contention 4(B) states:
There are likely to occur radioactive releases, (from the steam generator repair) to unrestricted areas which violate 10 CFR Part 20 or are not as low as is reasonably achievable within the queening of S~7 lg CFR Part 50 as a result of a hurricane or tornado striking the site during the steam generator repairs.
See transcript of March 24, 1981 Prehearing Conference at 60.
810gg80065
0 4o E
affidavits demonstrate that there are no factual issues requiring adjudi-cation and that dismissal of these contentions is warranted as a matter of law.
The operative legal principles underlying summary disposition are outlined in the Staff's earlier summary disposition motion of Febru-ary 20, 1981.
As noted therein, once a motion for summary disposition has been made and supported by affidavit, a party opposing the motion may not rely on mere all'egations, but instead must demonstrate by affidavit or otherwise that a genuine issue exists as to a material fact.
10 CFR 52.749(b); Vir inia Electric and Power Com an (North Anna Nuclear Power
- Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453
( 1980).
This decision also establishes precedent for the termination of a license amendment proceeding in its entirety on summary disposition.
II.
DISCUSSION Contention 1
1.
Le al Sco e of FES In order to eliminate the issue from controversy, the Staff decided to prepare an impact statement as a matter of discretion in this matter.
The Staff had prepared an earlier environmental impact appraisal on June 29, 1979, in which it concluded that the proposed action would not result in a significant impact on the environment
- and, hence, that an impact statement was not required.
- EIA, 5 6.0.
The FES contains an 3/
'See letter from Staff counsel to the Board, dated March 6, 1980.
This decision was influenced by a Commission Memorandum and Order directing the issuance of a statement in connection with the Surry steam generator repairs for which it was unable to determine "whether the environmental impacts [therefrom] are significant."
Vir inia Electric Power Co. (Surry Nuclear Power Station, Units 1
and 2
, CLI-80-4, 11 NRC 405, 407 (1980).
4l O~
~e evaluation of the environmental effects of the proposed action, alterna-tives thereto, and postulated accidents.
(FES, 55 4, 5, and 6).
It further contains.
a thorough consideration of comments received on the Draft Environmental Statement (DES).
(FES, 5 8).
The FES concludes that the proposed action will not significantly affect the quality of the environment and that its benefits outweigh the costs.
(FES, 56).
It is well established that the envi.ronmental matters to be considered in a particular action are limited to those which bear a
logical nexus to the activities authorized thereunder; In the present 4/
situation, the requested license amendments would authorize repairs to the existing steam generators.
The impacts of facility operation, and alternatives
- thereto, were evaluated in a 1972 FES.
The Appeal Board has consistently recognized that the scope of the environmental review performed in connection with an operating licensing amendment is delimited in scope and not equivalent to that performed at the operating license stage.
Such review is essentially confined to a consideration of the extent to which the proposed action will lead to environmental impacts beyond those previously evaluated.
In the present context, 5/
4/
See, ~e... Sierra Club v. ~Kle e,
427 U.S.
340 (1975).
5/
See most ~recentl Consumers Power Co. (Big Rock Point Nuclear Plan~t, ALAB-636, Slip Op. at 26, 31-32 (t1arch 31, 1981);
See also Vir inia Electr'ic and Power Co. (North Anna Nuclear, Power Station, Units 1 and 2, ALAB-584, 11 NRC 451, 451-58 (1980); Portl'and Electric Co. (Trojan Nuclear Plant),
ALAB-531, 9 NRC K3, 2'-67 and n.6 1979); Northern States Power Co. (Prairie Island Nuclear Generating
- Plant, nsts an,
- 55, 7
NRC 41, 46 n.4 (1978);
Vermont Yankee Nuclear Power Cor
. (Vermont Yankee. Nuclear Power
- tatlon, AB-245, 8 EC 873, 875 (1974).
Qi
this does not extend to a reconsideration of the impacts of continued operation or alternatives to such operation, either alternative energy sources or energy reduction measures.
As the Appeal Board has succintly stated in this regard:
Nothing in NEPA or in those judicial decisions to, which our attention has been directed dictates that the same ground be wholly replowed in connection. with a proposed
[1icensej amend-ment...
Rather, it seems manifest to us that all that need be undertaken is a consideration of whether the amendment itself would bring about significant environmental consequences beyond those previously assessed and, if so, whether those consequences (to the extent unavoidable) would be sufficient on balance to require a denial of the amendment application.
This is true irrespective of whether, by happenstance, the particular amend-ment js necessary in order to enable continued reactor operation The Staff submits that, by any reasonable
- measure, the present 7/
FES represents a complete fulfillment of its environmental responsi-bilities in this matter.
Preparation of an impact statement of a more expansive scope would constitute an improper application of the governing legal principles and unduly burden and delay the decisional process.
2.
Pro osed Amendment On April 20, 1981, the Intervenor filed a proposed'mendment to contention 1.
This amendment consists of simple assertions that the FES is deficient in one way or the other without any supporting legal or factual basis.
The Staff opposes the proposed amendment on both procedural 6/
Prairie Island,
~sn ra, 7
RRC at 46 n. 4.
7/
See NRDC v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972) ("rule of reas~on Compare this FES, for example, with the July, 1980 FES (NUREG-0692) concerning the Surry steam generator repair accepted by the Commission.
~I 4~
and substantive grounds.
First, the factors in 10 CFR 52.714 relative to nontimely filings have not been addressed as required with regard to amended contentions.
- Second, the pleading fails to fulfill the Board's 8/
requirement that such amendment "plead with specificity the respects in which the FES...does not legally or factually comply with NEPA."
Hemo-randum and Order, dated April 2, 1981, at 4.
The pleading fails to substantiate any of the asserted deficiencies and certainly presents no genuine issues of material fact warranting adjudication.
The first two assertions allege that the Staff has failed to comply with two provisions in the 1978 guidelines of the Council on Environmental Quality (CEQ): the scoping provisions of 40 CFR 51501.7 and the requirement to prepare a record of agency decisions in 40 CFR 51505.2.
The Commission's own regulations implementing NEPA are contained in 10 CFR Part 51.
The Commission has consistently taken the position that the substantive requirements of the CEQ guidelines are not binding on the NRC as an independent regulatory agency.
See, for
- example, the attached letter from Chairman Hendrie to then CEQ Chairman Warren, dated Hay 31, 1979.
The Commission
- has, nonetheless, proposed revisions in 10 CFR Part 51 which voluntarily take the CEQ guidelines into accounts The applicable notice of proposed rulemaking specifically indicated that,
+8 See Transcript of Harch 24, 1981 prehearing conference at 30-32.
Q9 45 F.R.
13739 (Harch 3, 1980).
until the proposed revisions were adopted.
present 10 'CFR Part 51 remains in effect.~
In any event, the HRC has not violated the cited CEq provisions in this proceeding.
The scoping concept is not a rigid one.
- It is designed to permit early identification of important issues deserving of study in an environmental statement.
Implementation of this concept is 11/
I'eft.
to agency discretion.~
In this action, the opportunity for public input to the environmental review process has been considerable.
The Intervenor has certainly had every occasion to convey his recommendations to the Staff as indeed he has done since the grant of his intervention in 1979.
A number of public prehearing conferences and less
'formal public meetings involving, the Staff have been held during the course of this proceeding at which time the Staff was available to discuss any matters of interest to the public.
In June,
.1979 the Staff issued an environmental
.impact appraisal with appropriate public notice.
Interested members of the public were free to address any comments they had on that document to the Staff.
In December, 1980, the Staff issued its DES for public comment.
A number of comments were received on the'ES and addressed by the Staff in the FES.
Thus, far from depriving the public of input into the environmental review process, the coincidence of l,itigation and the several environmental documents actually published have provided
~10 Id. at 13780.
~11 43 F.R.
- 55978, 55982 (Nov. 29, 1978).
ample opportunity for interested members of the publi'c to bring any concerns to the fore.
Section 1505.2 of the CEg guidelines requires the preparation of a public record of decisions in cases requiring an environmental impact statement.
The decision on the proposed license amendment has not been made by the Board entrusted with such decision.
The Staff has made its recommendation and believes that an adequate record has been developed for a favorable decision in the matter.
Assertion 3, alleges that a programmatic EIS is required for the proposed action.
The Intervenor cites no legal authority for this allegation nor is the. Staff aware of any.
The present licensing action is not part of a comprehensive federal proposal or program regarding steam generator repairs.
It is an individual action with discrete and discernible local effects.
It contrasts sharply with:instances for which past NRC program statements have been proposed.~
Assertions 4 and 15 allege, without explanation or justification, that the FES fails to fully address all environmental effects of the proposed action, including all irrelersible and irretrievable resources.
On the contrary, the FES contains a full and fair evaluation of the reasonably~
calculable environmental impacts of the proposed
~12
~Com are Scientists Institute for Public Information v.
AEC, 481 F.2d.1079 D.C. Cir.
1973 liquid metal fast breeder reactor program).
~13 See n.
7
~su ra
~I
~i
action (FES, 54; Appendices A-D), including a discussion of the irreversible and irretrievable commitment of resources (FES,
$4.3. 1).
Assertion 5 claims, without explanation, that the FES fails to consider the socioeconomic effects upon the Applicant's rate payers.
The FES considers both the economic (54.2) and socioeconomic (54.3.2) impact of the proposed repair.
If the concern is over who will bear the cost of the proposed repair, this is a matter for the appropriate state agencies to decide and is beyond the scope of NRC jurisdiction and, consequently, this FES.
See FES, 58.6.24.
Assertion 6 claims that the FES contains no table of definitions.
The Intervenor made a similar comment on the DES.
As indicated in response thereto, while the use of some technical terms is necessary in an environmental statement dealing with the subject of nuclear
- power, the meaning of many terms should become clear from the content of the statement and should not unduly hamper the ability of the general public to understand the nature of the proposed action or its effects.
See
- FES, 58.6.3.
In fact, this is the only such comment received on the DES.
- Further, the NRC is in the process of preparing a glossary of nuclear terms for public purchase which should be available this summer.
Assertion 7 claims, without explanation or substantiation, that the estimates of worker exposure are unreasonably low.
The Intervenor made a similar comment on the DES.
See FES, 58.6.23.
In fact, the FES identified occupational exposure as the major environmental impact associated with the proposed repair.
FES, 52.4.
Accordingly, it received an exceedingly thorough and comprehensive analysis in the FES.
FES, 5)4.1.1; 5; 8.6.8; 8.6.13.
The analysis has yet to be seriously questioned by competent expert testimony rather than lay judgments.
Assertion 8 claims, without explanation or substantiation, that the analysis of death and health effects due to the proposed.action is invalid in that it is based on outmoded scientific information.
In fact, the contrary is true.
The FES contains an, extensive and timely con-sideration of the health effects due to occupational exposure (FES, 554. 1. 1.6, 8.6.8) and to the general public (FES, 58.6.8; Appendix B).
This includes consideration of the most current and highly regarded 1980 BEIR III National Report of the Academy of.Sciences.
FES, Appendix B.
Assertion 9 claims that the economic analysis in the FES is invalid in that it fails to consider the possibility that replacement or repair of the steam generators may be necessary a second time.
This is untrue.
As concluded in the FES, the new steam generator design incorporates features that will eliminate the potential for the various forms of degradation observed to date.
- FES, 56.
'Under these circum-
- stances, further NEPA consideration is not required.
See
- n. 17, infra.
Assertion 10 claims, without explanation or substantion, that the FES fails to comply with a good faith consideration as is required under NEPA.
This is incorrect.
The FES contains a "good faith, objec-tive, and reasonable presentation of. the subject areas mandated by NEPA" which reflects that the Staff has given all pertinent environmental matters a "hard look."~
14/
~14 See Environmental Defense Fund Inc. v. Andrus, 1619 F.2d 1368, 1375 10th Cir.
1980
Il
~I Assertion 11 and 13 claim that the FES fails to adequately discuss alternatives to the proposed action.
Again, this is not the case.
The FES has considered in significant details a range of reasonable alternatives to the proposed action.
- FES, 555, 8.6. 13; A'ppendix.C; See discussion of legal scope
~su ra.
The consideration of alternatives pursuant to WEPA, like the consideration of environmental impacts, is subject to a "rule of reason".~
15/
Assertion 12 claims that the FES fails to adequately address the health affects of the proposed action 'because it tends to "explore the positive effects that the repair will have while downplaying the negative impacts."
This assertion is typical of the hollow claims contained in the proposed amendment.
Throughout the FES, the Staff presents both the costs and benefits of the proposed action fairly and completely.
There is absolutely no evidence to demonstrate, otherwise.
The Staff concluded, after weighing both the costs and', benefits of the proposed action, that the benefits outweighed the costs and that the proposed repairs would not significantly affect the quality of the human environment.
- FES, 56.
Instead of introducing any evidence to the contrary, the Intervenor adheres to his consistent position that the Staff has done everything wrong and nothing right.
As the present pleading plainly attests, there is absolutely nothing to support such a
position.
.Assertion 14 asserts that the FES fails to consider the relationship between local short-term uses of man's environment and the maintenance j15 NRDC v. liorton, ~su ra, 455 F.2d at 834.
II
and enhancement of long-term productivity..
The Staff disagrees.
The Turkey Point plant site, the chief environmental
.resource entailed here, is wholly.dedicated to nuclear generation.
This committed land usage was considered in the operating license FES, dated 1972.
See OL-FES, 5VII.
The proposed action does not.alter the use or size of this or other natural resources.
'See
- FES, 5 8.6. 17.
Assertion 16 claims that the FES fails to adequately discuss the impact of a hurricane if one occurs during the proposed repair.
The probability of a hurricane striking the site, particularly one of sufficient velocity to budge a steam generator, is highly improbable.~
It is well established the NEPA does not require the consideration of the consequences of improbable or remote events. ~
Nonetheless, the 17/
environmental effects of a hurricane striking the site during the pro-posed repair have 'been considered.
FES, 534.4; 8.6.5.
This matter has also been more fully analyzed in Staff testimony on contention 4.
Staff affidavits of Richard B. Codell and Robert F. Abbey, Jr.
Assertion 17 claims, without substantiation, that the FES fails to consider the long-term affects of a nuclear waste buil'ding next to Biscayne Bay.
The Staff has thoroughly considered'he.
effects of storage of the replaced steam, generators in the planned onsite compound.
See
- FES, 554. 1.2.4; 5.5; 8.6.9.
The Staff has also
~16 See Staff affidavit of Robert F. Abbey, Jr.
on Contention 4B.
~17 See Environmental Defense Fund v. Hoffman, 566 F.2d
- 1060, 1067 (8th Ci r.
1977
- Carolina Stud Grou
- v. U.S.,
510 F.2d 796, 799 (D.C.
Cir. 1975); Prairie Island,
~su ra, 7
NRC at 48; Cf. Vermont Yankee Nuclear Cor
. v.
NRDC, 435 U.S.
- 519, 551 (1978).
4 0
considered the effects from the alternative option of shipping the replaced steam generators to the Barnwell waste burial site.
- FES, A)5.5; 8.6.8; Appendix C.
If the steam generators remain in storage onsite for the term of the license, the storage compound will simply be decommissioned along with the rest of the plant, as a relatively minor part of such activity.
See 10 CFR 950.82.
Contention 4B Contention 4B questions the radiological effects of a hurricane or tornado striking the site during the proposed repairs.
There is virtually no chance that a steam generator standing outside of the containment during the course of the repair will be moved by either a hurricane or tornado, let alone in a manner which will cause a release of radioactivity.
Staff affidavit of Robert F.
Abbey on Contention 4B (Abbey affidavit).
The historical time period of hurricanes in the region does not substantially coincide with the proposed repair schedule, the chance of a tornado is remote, the probability of a wind occurring from either storm that is strong enough to move a steam generator is small, and the assemblies are firmly welded.
Id.; FES, 58.6.5.
The, accident risk due to a hurricane or tornado-generated missile during the repair is also extremely small.
Abbey affidavit.
As part of its safety and environmental review, the Staff has considered the radiological consequences of an accident involving the 12 foot drop of a steam generator outside the containment building.
- SER, 53.4, FES, 54.4.
Even if a steam generator could be moved by hurricane or tornado winds, it is unlikely to strike another object with the force comparable to a 12 foot drop.
The radiological consequences of such
accident fall within the permissible radiation levels of 10 CFR Part 20, 18/
even though such provisions are applicable to normal reactor operations, rather than accident conditions.
Id.
Should the steam generators be actually breached'y a hurricane or tornado, the conservatively evaluated releases would be the same.
However, tlie dispersion factor would be much larger and the environmental impact thus reduced.
FES, 58.6.5.
CONCLUSION Under the present
- record, no documentary or other evidence exists which establishes a genuine dispute as to the statement of material facts accompanying the present motion and, upon the basis of these
- facts, and the foregoing discussion, the Staff is entitled to summary disposition as a matter of law.
Accordingly, the Board should grant summary disposition and dismiss contentions 1 and 4B.
Respectfully submitted, Steven C. Goldberg, Counsel for NRC Staff Dated at Bethesda, maryland this 27th day of April, 1981.
~18 A dose of 15 mrem to a'ital organ (lung) of an individual at the exclusion boundary.
0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
. FLORIDA POWER AND LIGHT COMPANY
)
)
(Turkey Point Nuclear Generating
)
Unit Nos.
3 and 4)
)
Docket Nos.
50-250 50-251 (Proposed Amendments to Facility Operating Licenses to Permit Steam Generator Repai.r MATERIAL FACTS AS TO WHICH THERE ARE NO GENUINE ISSUES TO BE HEARD 1.
The Staff decided to prepare an environmental impact statement as a matter of discretion in this proceeding.
See letter from Staff counsel to the Board, dated March 6, 1980.
This led to the issuance of a Draft Environmental Statement for public comment in December,.
1980 and a Final Environmental Statement (FES) in March, 1981.
2.
The FES contains a thorough discussion of the environmental impacts of the proposed action (radiological and nonradiological),
and alternatives
- thereto, along with a cost-benefit analysis and conclusion as to the action called for.
- FES, 55 4, 5 and 6.
3.
Its contents conform to the Commission requirements for such a
statement.
Cf.
10 CFR 3 51.26 (construction permit FES).
4.
The scope of the FES comports wi'th the NRC case law requirements applicable to license amendments environmental reviews.
The proposed repair will not result in a s'ignificant impact on the environment and its benefits outweigh the costs.
- FES,
$6.0.
6.
The FES is both legally and factually sufficient.
9 7.
The proposed repair schedule does not substantially coincide with the historical hurricane season in. southeastern Florida and the chance of a tornado occurrence is remote.
8.
A steam generator outside of containment is virtually unmoveable
,by any reasonably conceivable wind speed associated with such a storm, let alone cause a release of radioactivity.
9.
The accident risk due to a hurricane or tornado-generated missile (projectile) during the repair. is similarly small.
10.
The Staff has conservatively evaluated the radiological releases resulting from the breach of a steam generator due to twelve foot drop outside containment.
11'he radiological consequences of such accident fall within the permissible radiation levels of 10 CFR Part 20 even though such provi-sions are appl'icable to normal reactor operations, rather than accident conditions.
12.
Should the steam generator be actually breached by a hurricane or tornado, the conservatively evaluated releases would be the same.
However, the dispersion factor could be much larger and the environmental impact thus reduced.
~I i
c+