ML17341A319
| ML17341A319 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 05/28/1981 |
| From: | Luebke E, Mark Miller, Paris O Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML17341A317 | List: |
| References | |
| ISSUANCES-SP, NUDOCS 8107140369 | |
| Download: ML17341A319 (48) | |
Text
UNITED STATES OF AMERICA
'UCLEAR REGULATORY:QOMl"1ISS ION ATOMIC SAFETY AND LICENSIl'lG BOARD Before Administrative Judges:
Marshall E. Miller, Chairman Or.
Emmeth A. Luebke Dr. Oscar H. Paris vfpq Q /./ g i(
)
)
)')
)
)
)
)
Docket Nos.
50-250-SP 50-251-SP In the Matter of FLORIDA POWER ANO I IGHT COMPANY (Proposed Amendment to Facility Operating License to Permit Steam Generator Repairs)
May 28, 1981 p+}5 (Turkey Point Nuclear Generating, Units 3 and 4)
MEMORANDUM AND ORDER (Granting Summary Disposition of All Contentions, and Cancelin Evidentiar Hearin This proceeding involves a proposed program for the repair of steam generators at Turkey Point Nuclear Units 3 and 4.
The Nuclear Regulatory Commission (NRC) gave notice on December 13, 1977, that it was considering license-amendments which would "authorize the licensee to repair the'team generators now in use at each facility, replacing major portions of such steam generators with new components, and to return the units to i 2/
operation using the steam generators, so repalred.
Any person whose interest may be affected was given an opportunity to intervene by filing a request for a hearing in the form of a petition for leave to intervene, by January 13, 1978.
Such petitions to intervene were stated to be governed by 10 CFR 52.714, and were required to identify
~l I Facility Operating Licenses Nos.
42 Fed.
Rece:
62569.
8107i40369 810528 PDR ADOCK 05000250 PDR "the specific aspect or aspects of the subject matter of the proceeding as to which he wishes to intervene and setting forth with particularity both the facts pertaining to this interest and the basis for his contentions i3/
with regard to each aspect on which he desires to intervene.
The Federal
~Re ister notice estab1ishing an opportunity for hearing on the proposed issuance of amendments to a facility operating license further stated:
"Contentions shall be limited to the matters within the scope of the amendments under consideration.
A. petition that sets forth contentions relating only to matters outside the scope of the amendments under consideration will be denied."4/
No petitions for leave to intervene were filed during the 30-day period established by the notice.
On February 9,
- 1979, more than a year after the expiration of the intervention period, Mark P.
Oncavage (Intervenor) filed an untimely request. for a "full hearing."
After receiving numerous filings, responses by the Staff and the Licensee (FPL), and amendments, a
divided Board ruled that after balancing the five factors set forth in 10 CFR 52.714(a)(l) for considering nontimely petitions, the intervention petition would be allowed.
5/
After receiving various filings, the Board entered an Order Relative to Contentions and Oiscovery on September 25, 1979.
This Order clarified the language in the admitted contentions and ruled on the remaining contentions.
Revised Contention 1 was stated to read as follows:
Id.
4/
10 NRC 1S3 (1979).
A dissenting opinion was filed by one Board Member (10 NRC at 211-12),
and separate opinions on the weight to be given Factor (iii) were filed by the other two Board Members (10 NRC at 193 5 200).
3 w
"Section 102(Z)(C) of the National Environmental Policy (4Z U.S.C.
54332{2)(C) or 10 CFR 551.5 requires the preparation of an Environmental Impact Statement, rior to the issuance by the Nuclear Regulatory Commis-sion of amendments to the operating licenses for Turkey Point Units Nos.
3 and 4 (Facility Operating Licenses Nos.
DPR-31 and DPR-41) authorizing the Licensee to repair the steam generators now in use in each facility."
The Staff at that time took the view that an environmental impact statement (EIS) was not required under the National Environm ronmental Policy Act
{NEPA)-
and 1
ar d 10 CFR Part 51 and that an environmental impact appraisal (EIA) would be adequate.
On June 29 1979 the Staff issued an EIA with appro-priate notice to the pu ic.
ow bl'owever the Staff subsequently decided to prepare an EIS as a matter of iscre ion, d'ion following a Commission Memorandum t'h issuance of an EIS in connection wi with the Surry id Order direc ing e
I
- December, 1980, the Staff issued its Draft steam generator repairs.
n ecem Environmental Statemen t (DES) and circulated it for comment.
The Final Environmental Statemen t (FES) as issued as NUREG-0743 in March, 1981.
w 3 prehearing conference was held March 24, 1981, for the purpose of establis ing, wi h
'th precision and finality, the cont entions which would frame the issues for tria e
Th Chairman of the Board requested counsel h
bilit and phrasing of each contention, for each party to address the via i i y in order to avoid having the parties "coming in with new issues or new
\\
m h
n "- to determine which issues were still matters in an untimely fas ion,
- viable, and "in order to have in one p ace l
the precisely phrased contentions
'c Act of 1969, Pub.
L. No.91-190, 83 The National Environmental Policy c
o Stat 852 as amended by Pub.
L. 94-83, 89 Stat et sece.
7 r Co.
Surry Nuclear Power Station, Uni s
a nits 1 and 2, 1
1 tt f o Staff o
1 to th CLI-80-4, 11 NRC 405 (1980).
See a
so e
er
- Board, dated March 6, 1980.
8/
Transcript of Prehearing Conference held in Homestead, Florida on
~h1 ET~
b t t al on."
The Intervenor's contentions that we are going to be going o
ria were then renumbere an rea in o d
d d
to the record, and also set forth expressly in the prehearing order as currently refined or revise.
contentions as t us se or th t forth with finality, and those contentions
- alone, control the issues to be adjudicated in this proceeding.
The only possible exception is e
th leave granted to the Intervenor "to file on or before April 20, 1981, appropriate amendments to Contention 1 in n
1 in order to plead d b the Staff with speci ici y e r
'f t
th espects in which the FES (due to be file y
by April 1) does not legally or factually comply with E
(
NEPA (Tr. 36, 38-9, 43' The filings made by the Intervenor regarding Contention 1
J
~
pursuant to this order, and the responsive motions and answ answers filed by the other parties, are discussed more fu11y infra at p
g a es 7-8, 14, 24-28.
S disposition motions were filed and, without opposition by the ummary is 12/
Intervenor, were granted as to Contention 1
a g
4 as ori inally numbered, and 13/
n of Contentions 2,
3 5
6 7
8 as renumbered. Summary dispositio Contention 4A was granted by our Order entered May 7, 1981.
That leaves for,.consideration in is pr th oceeding only the amendments to Contention 1,
and Contention 4B.
Tr. 6-7.
9/
Memorandum and Order entered April 2, 1981, pp. 2-5.
Id., at 3-4.
Id., at 5-6.
/Memorandum and Order (Granting Motions for Summary Disposition), entered AiiS I.
DESCRIPTION OF PROPOSED STEAM GENERATOR REPAIRS The six steam generators at Turkey Point Units 3 and 4 have all under-be an o eration in 1972 gone a signi ican f'nt amount of degradation since they g
p and 1973, respectively.
The wastage and denti g
p n
henomena have led to the tube wall thinning, support plate flow slot hourglas g
sin and plate ligament n
and several instances of clac ingi u
k' be denting stress corrosion cracki g
r
- 1980, tube reactor coolant ea age 1
k through cracked tubes.
As of Novembe plugging or var' arious reasons has resulted in remo g
vin about 205 of the U t 3 and about 24~ of the tubes in Unit 4 from steam generator tubes in ni continuing service.
i iona Add t nal plugging would result in operating at a
reduced power rating and at an economic disadvantage.
FPL plans to repair all six steam generators
'sin Turkey Point Units 3 and 4.
The ni s
e U t 4 t am generators have the most tubes p
gg lu ed and, there-fore, would be repaire irs d f t
The repair of Turkey Point Unit 3 steam generators is expected to begin about one year later.
Since FPL experiences operating peaks of longer duratio n in the
- summer, and the repa ir i s expecte to a
e r
d t k from six to nine months per unit, the repair shoul d be started in the a
o e c f ll t be completed before the next summer peak demand.
t of replacing the lower assembly of The proposed repairs will consis o
each steam generator, including the s
ehell and the tube bundle, and refurbishing and par ia y
t ll replacing the steam separation equipment in the upper assem y.
bl Prior to the repair work, the uunit will be shut down and wn.
The all systems will be p ace in 1
d 'n condition for long-term shutdo
~actor vessel head will be removed for defueling.
All of the normal pro-
- edures for fuel cooling and fuel removal will be followed.
The fuel will
~e removed from the reactor and placed in the spent fuel storage facility, nd then the reactor vessel head will be replaced.
The equipment hatch will be opened and access control will be estab-lished.
A special curtain, which would be able to reduce the size of the opening in the containment in case of an accident, will be installed in place of the door for ease of deployment.
A special vent exhausting through an HEPA filter will be constructed.
The biological shield wall and a
section of the operating floor concrete and structural steel will be ll be removed to provide access to the steam generator.
Guide rails wi installed for transporting the lower assembly through the equipment hatch.
After this preparatory work, the cutting of system piping will begin.
This will include cutting and removal of sections of steam lines, feedwater
- lines, and miscellaneous smaller lines for the service air and water and the instrumentation system.
The steam generator will then be cut at the transition cone, and the upper shell will be removed and will be refurbished
/
inside containment.
After the channel cut at the bottom, the lower assembly will be lifted from its support to the working level where it will be welded shut.
Following this, the steam generator lower assembly will be lowered and placed in position on a transport mechanism.
This mechanism will carry the assembly through the equipment hatch.
A transporter will carry it to the steam generator storage facility on the site.
The other two steam generator lower assemblies will be lifted from their location, welded shut, and lowered through the same hatch
.Where the first steam generator was removed.
r
~
~
After removal and storage of all three steam generator lower assemblies, their replacements will be tr'ansported from the temporary storage location to the equipment hatch.
The same machinery used to remove the lower assemblies will be used to install the new assemblies in their cubicles..
The steam generator lower assembly will be reinstalled and rewelded to the old bottom section.
The upper assembly with its refurbished internals will be mounted on the lower assembly.
After welding the two assemblies
- together, the piping will be reconstr'ucted.
Following these major repair activities, there will be cleaning, hydrostatic testing, baseline inservice inspections, and preoperational testing of instruments, components and systems.
The reactor will then be refueled and startup tests will be performed.
The performance of the repaired steam generators will be tested for moisture carryover and verification of thermal and hydraulic characteristics (NUREG-0743, Final Environmental Statement,
- March, 1981 at 1-1 to 3-4).
II.
CONTENTION 1
The Intervenor's "Amendment to Contention 1", filed April 20,
- 1981, consists of 17 numbered amendments to the original contention, which purport to "plead with specificity the respects in which the FES...does not legally or factually comply with NEPA." The Staff filed its Objections 14/
~
~
to Proposed Amended Contention 1 and Third Motion for Summary Disp'osition on April 27, 1981.
The Staff opposed the proposed amendments on both procedural and substantive
- grounds, asserting that they failed to plead Tr. 27-28, 35; Memorandum and Order, dated April 2,
- 1981,
- p. 4.
-8>>
with specificity the respects in which the FES did not comply legally or factually with NEPA. It also asserted that such pleadings presented no genuine issues of material fact warranting adjudication, and sought summary disposition under 10 CFR 52.749.
The Licensee filed a response in support of the Staff's objections and motion for summary disposition on April 30, 1981.
The Intervenor filed an Answer Opposing the Motion for Summary Judgment on May 19, 1981.
The Intervenor's numbered amendments to Contention 1 will be considered
- seriatim, regarding both their adequacy as contentions and their viability when challenged by the Staff's motions for summary disposi-tion.
The first two amendments assert that the Staff has failed to comply with two provisionsin e
th 1978 guidelines of the Council on Environmental guality (CEg).
Amendment 1 states:
The EIS failed to follow section 1501.7 of the NEPA r egula-tions in that the Staff failed to invite interested persons to participate in a scoping process in which the scope of the EIS was to be decided.
Amendment 2 states No record of decision was prepared for the Turkey Point Project in violation of 40 CFR 1505.2.
The Commission's own regulations implementing NEPA are set forth in 10 CFR Part 51.
The Commission has consistently taken the position that 40 CFR 551501.7 and 1505.2.
the substantive requirements oi'the CEg guidelines are not binding upon the NRC because it is an independent regulatory agency. The Executive 16/
Order issued by the President stated generally that federal agencies shall comply with the regulations issued by CEg "except where such compliance would be inconsistent with statutory requirements." The Commission has proposed revisions in 10 CFR Part 51 which voluntarily take the CEg guidelines into account, but until the proposed revisions are adopted, the present regulations remain in effect. A final rule has not yet 18/
been adopted by the Commission.
Accordingly, the Staff was governed by the provisions of 10 CFR Part 51, not the CEg regulations as alleged by the Intervenor, in preparing and issuing a Final Environmental Statement.
Moreover, the Intervenor and the public have had extensive opportuni-ties for input to the environmental review process in this proceeding, including the scope of the Environmental Impact Statement suggested by CEg guidelines (40 CFR 51501.7).
On June 29, 1979, the Staff issued an Environmental Impact Appraisal with appropriate notice to the public.
In
- December, 1980, the Staff issued its Draft Environmental Statement for public comment.
A large number of comments including those of the Intervenor were received and were specifically addressed by the Staff in its FES, which was issued as NUREG-0743 in March, 1981.
19/
May 31, 1979 letter from NRC Chairman Joseph M. Hendrie
+o Char'.es H.
Warr n Chairman CEg (Attach...en+ to Staff's Mo+ion da+ed Apr'.l 27, 1981).
Executive Order No. 11, 991 (3 CFR 123), reprinted 42 U.S.C.
54231 (1977).
Fed.
~Re
. 13739-40 (March 3, 1980).
FES at 8-1 to 8-26.
19/
- 10 "
The scope of a NEPA environmental review performed in co n connection with a nuclear aci i y f
1 t license amendment is somewhat limite,
d and it is not as broad as that conducted in the prior NRC licensing proceedings.
Such an h the action analysis is direc e
o a t d t consideration of the extent to whic under the proposed amen men wi d
t will lead to environmental impacts beyond The A peal Board in this regard has stated:
those previously evaluated.
e p
"Nothing in NEPA or in those judicial decisions to which our attention as h
been directed dictates that the same groun e
w d b wholly replowed in connection with a prop
~license]
amendment....
Rather, it seems manifest to us that all that need be undertaken is a consideration h th r the amendment itself would bring about significant environmental consequenc y
es be ond those d and if so, whether those consequences previously assesse an
, i (to the extent unavoidable) would be sufficien on b
1 t
require a denial of the amendment application.
This is true irrespective of whether,'
pp a ance o
the par ticuiar amendment is necessary i~ ~rder tn enable continued reactor operation...."
According y, in is 1
th case the scope of environmental review does not extend to a reconsideration of the impacts oof the continued operation or f Turkey Point, as they have been previously alternatives to such operation o
ur ey assessed in NRC licensing proceedings.
Such avoidance dance of replowing the same ground app ies o a 1'
a reconsideration of alternative energy sources, or energy r e uc io d t' measures including conservation.
s The FES prepared and filed by the Staff in'n fiarch, 1981 (NUREG-0743),
c f th ro osed steam generator repair met ohd g3 contains a description o
e propos 20/
r Co.
Bi Rock Point Nuclear Plant),
ALAB-636, (March 31, 3
Vir inia Electric and Power Company (North
)
ALAB-584 ll NRC 451 (1980)
Anna Nuclear Power Station, Units 1 and 2, es Power Co. (Prairie Island Nuclear Generating
- Plant, RC 41 46 fn 4 (1978)
Units 1 and 2), ALAB-455, 7 N
0 as well as an evaluation of its environmental effects, alternatives
- thereto, and postulated accidents (554, 5 and 6). It contains a reasoned considera-tion of all commen'ts received on the OES, including those made by the Intervenor (58).
The FES concludes that the proposed action will not significantly affect the quality of the environment, that its benefits outweigh the costs, and that the overall cost benefit would not be improved by any of the alternatives (56).
The scope of the FES therefore encompasses the environmental impact analysis required by NEPA and implemented by 10 CFR Part 51.
Section 1505.2 of the CEg.guidelines, regarding the preparation of a public record of an agency's decision, is not applicable under Amendment 2
because an agency decision is not made by the Staff.
That adjudicatory decision is made for the agency by a Licensing Boar d, subject to review by the Appeal Board and by the Commission itself.
As stated by the Staff, it has made its recommendations and believes that an adequate record has been developed for a favorable decision on the FES by the Board.
For the fore-going reasons, Amendments I and 2 do not plead cognizable contentions, and they are also subject to summary disposition.
Amendment 3 alle es that a programmatic EIS is required "as a result.
of the steam generator repairs that would be required nationally."
- However, no legal or factual basis is shown for such a conclusion.
The instant steam generator repairs are not part of a comprehensive federal proposal or national program which would require a programmatic NEPA review.
The environmental impacts associated with the Turkey Point repairs will only
occur on a local, not a national basis.
Such individual actions with 22/
- discrete and readily discernible local effects do not require a programma-tic environmental impact study. Amendment 3 does not state a cognizable 23/
contention, and it is also subject to summary disposition.
Amendments 4 and 15 involve essentially the same subjects and there-fore will be considered together.
Amendment 4 states:
The final EIS fails to comply with NEPA in that the EIS does not address (to the fullest extent pos'sible) all environmental effects of proposed actions as well as all irreversible and irretrievable resources.
Amendment 15 states'-.'he EIS fails to discuss the irreversible and irretrievable commitment of resources in the proposed action.
These amendments merely refer generally to some phrases taken from Section 102 of NEPA, but fai] to relate them to the Turkey Point steam generator repairs in any meaningful manner.
There is no specificity or concreteness as to the way in which "environmental effects" or "irreversible and irretrievable commitment of resources" were allegedly not properly addressed by the Staff in the FES.
Under 10 CFR 52.714(b),
an intervention petition must include "...the bases for each contention set forth with reasonable specificity."
This requirement of pleading with particularity and specificity was also set Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-531, 9 NRC 22/
- 263, 267-8 (1979); Virginia Electric and Power Company (Surry Nuclear Power Station, Units I and 2), D0-79-19, 10 NRC 625, 639-42 (1979).
23/Kleppe v. Sierra Club, 427 U.S. 390, 399, 402, 410 (1976).
13-forth in the notice of opportunity for hearing on the Turkey Point proposed license amendment,
~su ra page 2 (42 Fed.
~Re
. 62669).
These basic require-ments make it incumbent upon intervenors to set forth contentions which are sufficiently detailed and specific to demonstrate that the issues raised are admissible and that further inquiry is warranted, and to put the other parties on notice as to what they will have to defend against or oppose.
24/
Although intervenors are not required to plead evidence, it is nevertheless necessary for contentions to set forth the reasons or bases for their assertions with reasonable particularization or specificity.
Mississi i Power and Li ht Com an (Grand Gulf Nuclear Station, Units 1 and 2), ALAS-130, 6 AEC 423, 425-26 (1973) does not hold, as the Intervenor
- argues, that a contention fulfilled the particularity requirement by stating that "the alternatives of conserving electricity or utilizing other methods of producing energy have not been adequately considered."
If the Intervenor's "Response to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Motion to Dismiss Contention 1", p. 3, had merely continued this quotation from Grand Gulf, it would then have read as follows:
"At the prehearing conference, petitioner's counsel stated that the basis for that contention is that the amounts expended by the applicant on advertising greatly exceeded (by a factor of ll) that devoted to research and development, and that he intended 'to introduce evidence that there are geothermal sources in the tdiddle South Utilities System area that could be utilized'Tr. 66-67).
Me agree with the Licensing Board that iven this articularization, the contention is adequate."
6 AEC at 426 Emphasis added)
BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir. 1974);
Duquesne Light Co.
(Beaver Valley, Unit No. 1), ALAB-109, 6 AEC 242, 245 (1973); Philadelphia Electric Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
Houston Lighting and Power Company (Aliens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 547-9 (1980).
It should be noted by contrast that in the instant proceeding, the Intervenor failed to particularize Contention 1 at the Prehearing Conference on March 24, 1981, although repeatedly invited to do so by the Board (Tr.
12-15, 24, 26-30, 34-36, 43-45).
A subsequent prehearing conference scheduled for April 27-28,
- 1981, was canceled upon motion of counsel for the Intervenor on the stated grounds that it "was no longer necessary."
Of course under 10 CFR 52.749, once a motion for summary disposition has been made and supported by affidavit, the opposing party may not rely on mere allegations, but rather must demonstrate by affidavit or otherwise that a genuine issue exists as to a material fact (Vir inia Electric and
~PC (8
AA 8
I P
2 1,81 I
PAP,ALA8-181 11 NRC 451, 453 (1980) ).
Amendment 4 also asserts that the FES is defective because it does V
not address "all" environmental effects of proposed actions.
This is not a correct statement of the applicable law.
The environmental review man-dated by NEPA is subject to a "rule of reason",
and it need not include review of environmental matters which are only remote and speculative possibilities. The Appeal Board has held that environmental impact statements need not discuss remote and speculative environmental impacts of the proposed project itself,quoting with approval the following statement by the Court of Appeals in Trout Unlimited:
Memorandum and Order (Canceling Prehearing Conference),
entered April 23, 1981.
Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S.
- 519, 551 (1978);
27/
NRDC v. Morton, 458 F.2d 827, 837-8 (D.C. Cir. 1972).
Public Service Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 38 (1979).
"An EIS need not discuss remote and highly speculative consequences....
A reasonably thorough discussion of the significant aspects of the probable envlronm~ngal consequences is all that is required by an EIS."
Finally, the FES in this proceeding does in fact contain a full and fair evaluation of the reasonably calculable environmental impacts of the proposed steam generator repairs (FES, 54; Appendices A-D).
The FES also considers and discusses the irreversible and irretrievable commitment of resources, in accordance with the requirements of NEPA (FES, 54.3.1).
Amendments 4 and 15 are inadequate to plead contentions, and they are subject to summary disposition.
Amendment 5 states:
The EIS fails to look at the socio-economic effects upon Florida Power and Light rate payers.
Such effects must be examined fully within the EIS because the project entails direct significant environmental effects which are intertwined with the socio-economic effects.
This contention amounts to a generalized claim, without explanation or definition, that the FES fails to consider the socioeconomic effects upon the Licensee's ratepayers.
In fact, the FES analyzes in some detail the economic costs of the Turkey Point steam generator repair project (54.2).
This study covers the costs of the repairs, and shows a
substantial net dollar savings when repair costs are compared with the cost of continued operation in a derated mode.
The estimated net savings of $380,000,000 are based largely on the costs of replacement
- capacity, which are described with supporting data.
The contention does not give a Trout Unlimited v. Ilorton, 509 F.2d 1276 at 1283 (9th Cir. 1974).
Accord:
Environmental Defense Fund v. Hoffman, 566 F.2d
- 1060, 1067 (8th Cir 1977).;
Concerned About Trident, v. Rumsfeld, 555 F.
2d 817, 828 (D.C. Cir. 1977);
Sierra Club v. Hodel, 544 F.2d 1036, 1039 (9th Cir'. 1976); Carolina Environ-mental Study Group v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975).
basis for nor any particularization of reasons for its bare assertions, contrary to the requirements of 10 CFR 42.714(b),
discussed
~su ra.
If this contention is intended in some manner to raise an issue over who will bear the costs of the proposed repairs, that is a matter for the appropriate staie agencies to decide, and it is beyond the scope of NRC jurisdiction in this proceeding (FES, 58.6.24).
Amendment 5 does'ot adequately plead a contention,'nd it is subject to summary disposition.
Amendment 6 states:
The EIS contains no glossary or table of definitions and consistently uses terminology beyond the ken of lay people.
There is no NEPA requirement that an EIS must contain a glossary of terms.
Steam generator repairs to a nuclear power plant obviously involve some technical matters.
However, the meaning of most terms in the FES can V
be determined from their context and relationship to the subjects discussed.
The courts have discussed this language problem as follows:
"[An EISj serves as an environmental full disclosure
- law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project.
To that end, it 'must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise....'t cannot be composed of statements
'too vague, too general and t'oo conclusory...'."307'he FES appears on its.face to achieve the terminological balance sought between reasonably informing the public and yet alerting specialists Silva v. Lynn, 482 F.2d
- 1282, 1284-88 (1st Cir. 1973); Sierra Club v.
- Norton, 510 F.2d 813, 820 (D.C. Cir. 1975).
to particular technical matters.
None of the commentors on the DES, with the sole exception of the Intervenor, indicated any problems with defini-tions or the use of technical terms (FES, 558.1, 8.6.3).
Amendment 6 does not adequately plead a cognizable contention, and it is subject to summary disposition.
Amendment 7 asserts that the estimates of worker exposure provided in the FES "are unreasonably low".
The Intervenor has failed to set forth any bases or reasons for this assertion; thus the contention fails to meet the requirement of 10 CFR 52.714(b) that the bases for a contention be stated with reasonable specificity.
Moreover, the FES identifies the occupational radiation exposure associated with the proposed repair as the major environmental impact (See FES, 52.4).,
Occupational exposure was thoroughly and extensively addressed in the FES.
The expected exposur was compared to the actual exposure which occurred during the steam generator repair at Surry, and adjusted upward in light of that experience.
As a result of that upward adjustment, FPL changed its planned procedure so as to reduce occupational exposure (See
- FES, 534. 1. 1 and 5).
In addition, the Intervenor addressed occupational exposure in his comments
'on the DES, and the Staff responded fully to those comments (See
- FES, 558.6.8 and 8.6.13).
Thus there is'o genuine issue to be heard as to the facts set forth on occupational exposure in the
- FES, and Amendment 7
is subject to summary disposition.
Amendment 8 asserts that the analysis of deaths and health effects that are expected to result from the repair activity is based on "out-moded scientific information".
Again, the Intervenor has failed to set forth the basis for this assertion and thus the contention fails to meet the requirements of 10 CFR 52.?14(b).
With regard to the facts the health S
effects predicted in the FES are based on the 1972 report of the National Academy of Sciences'dvisory Committee on the Biological Effects of Ionizing Radiation (BEIR Committee),
"The Effect on Populations of Exposure to Low Levels of Ionizing Radiation" (See FES, 54.1.1.6).
The 1972 BEIR report was updated by the more recent report, "The Effect on Populat>ons of Exposure to Low Levels of Ionizing Radiation - 1980".
This 1980 report is used as the basis for additional estimates presented in Appendix B of the FES (See
- FES, pp.
B-1 through B-4).
~
Thus there is no genuine issue to be heard as to the facts with respect to this contention S
and it is subject to summary disposition.
Amendment 9 states:
The economic analysis in the EIS is invalid in that it fails to consider the possibility that replacement or repair of the steam generators may be necessary a second time.
In fact 53 of the FES does consider the possibility of the need to replace or repair the steam generators
- again, and concludes that "a
,. number of changes have been made in the materials, the design and the
- es1gn, operating procedure for the replacement steam generators to assure that the corrosion and denting problems will not recur."
Section 6(3) states that the new steam generator design "incorporates features that will eliminate the potential for the various forms of tube degradation observed to date to date.
In responding to the Intervenor's comments on the OES, the FES further states that it "is assumed that the life of the repair is the The heal h
The health effects of ionizing radiation predicted in the 1980 report by the BEIR Comnittee are less severe than those predicted by the 1972 report.
rema>nder of the plant life, or about 30 years.
There is no guarantee of th>s plant l>fe; however, the Staff safety review found no reason to doubt that the steam generators would last the life of the plant" (FES, 58.6.24).
No basis has been shown for this contention.
It should be noted that the Intervenor's original Contention 11(a) alleged that the Licensee had "failed to consider the cost of future recurring steam generator repairs."
The Board rejected that contention then because it found "no basis for this speculation." There is still no basis shown for such speculation.
Amendment 9 does not adequately plead a cognizable contention, and it is subject to summary disposition.
Amendment 10 states:
The entire EIS fails to comply with a good faith consideration as is required under NEPA.
This statement is wholly conclusory and without the allegation of any factual or other bases or reasons.
It does not purport to raise any factual
- issue, and it lacks the specificity and particularization of reasons for its bare assertions required by 1Q CFR 52.714(b).
It is therefore not admissible as a contention.
In addition, the FES contains a good faith, objective and reasonable consideration of the subject areas as mandated by NEPA. Amendment 10 is subject to sugary disposition.
33/
Amendments 11 and 13 both purport to address the consideration of alternatives in the FES.
32/Order Relating to Contentions and Discovery, dated September 25, 1979 at p. 5.
S 33/Environmental Defense Fund, Inc. v. Andrus, 619 F.2d
- 1368, 1375-77 (10th Cir. 1980); Manygoats v. Kleppe, 558 F.2d 556, 560-61 (9th Cir.
1977).
Amendment ll states:
The analysis of alternatives is inadequate under NEPA.
Amendment 13 states:
The EIS fails to adequately discuss the alternatives to the proposed action.
These assertions are bare conclusions, devoid of any description of bases or reasons for the statements.
There is no identification of any alternatives which should have been considered but were not.
Neither is there any description of alleged inadequacies or deficiencies in the analysis of those alternatives which were considered in the FES.
It has been held that the "discussion of environmental effects of all alternatives need not be exhaustive, but it must be such that sufficient information is contained therein to permit a 'rule of reason'esignation of alternatives beyond the primary proposal."
The Supreme Court has discussed this question of flEPA consideration of alternatives as folllows:
"LT]he term 'alternatives's not self-defining....
Common sense also teaches us that the 'detailed statement of
'lternatives'annot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man....
It is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenor's position and contentions....
Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstruction-ism by making cryptic and obscure reference to matters that
'ought to be'onsidered and then, after failing to do more to bring the matter to the agency's attention, seeking to 34/Environmental Defense Fund, inc. v. Andrus,
~su ra, 619 F.2d at 1375.
See also Natural Resources Defense Council, Inc. v. Norton, 458 F.2d 827, 836-7 (D.C. Cir. 1972).
have the agency determination vacated on the ground that the agency failed to consider matters 'forcefully presented.'"35~
- Further, the FES in fact considers various alternatives in substantial detail, including continued operation without repair, replacement by plant of another design, or the chosen alternative of repair of generators (FES, 55; Table 5. 1, Options considered).
The steam generator repair alternatives which were analyzed included ret'ubing (55.2), tube sleeving (55.3), replace-ment of entire generator (55.4),
and the proposed method of replacement of the lower assembly (Table 5.2).
Six alternative methods for the disposal of the steam generator lower assemblies, which comprise the largest source of radioactive waste, were also analyzed (55.5, Table 5.3).
The Staff answered the comments of the Intervenor on the DES regarding alternatives, pointing out the range of reasonable alternatives it had considered, but noting that alternatives to plant operation itself, rather than the proposed
- repairs, were beyond the scope of required environmental review.(FES 58.6.13).
The FES therefore contains a good faith reasonable review of alternatives as required by NEPA.
Amendments 11 and 13 do not adequately plead cognizable contentions, and they are subject to summary disposition.
Amendment 12 states:
The final EIS as a whole fails to adequately address the impact of the steam generator repair on the human environment because it tends to explore the positive effects that the repair will have while down-playing the negative impact.
This bare assertion lacks the essential elements of pleading the bases of contentions with reasonable specificity, as required by 10 CFR 52.714(b).
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 35/
435 U.S. 519, 551-54 (1978).
~,
22 No issues are framed by this allegation.
In addition, the FES makes a-reasoned cost-benefit analysis showing that the benefits of the cohtinued safe production of power for the public outweigh the described costs of the proposed repairs, both environmental and economic (FES, 56). It also shows that the overall cost benefit would not be improved by any of the alternatives (Id.).
Amendment 12 fails to plead an admissible contention, and it is subject to summary disposition.
Amendment 14 states:
The EIS fails to adequately discuss the relationship between local short term use of man's environment and maintenance and enhancement of the long term productivity.
This contention lacks the requisite descriptions of bases with reasonable specificity, contrary to the requirements of 10 CFR 52.714(b).
In addition, the Turkey Point plant site is the primary environmental resource involved in this proceeding, and it is and has been wholly dedicated to the nuclear generation of electricity.
Such committed land usage was considered and approved in the operating license FES in 1972 (OL-FES, 5VII).
The instant k
proposed steam generator repairs do not change Or materially alter the size, use or environmental impacts of this facility or its site.
Amendment 14 does not plead a cognizable contention, and it is subject to summary disposition.
Amendment 16 states:
The final EIS fails to adequately discuss the environmental impact of a hurricane if one occurs during the repair process.
We assume that In.ervenor means to refer to the environmental impact resulting from the interaction of a hurricane with steam generator repa',r cQ,
23 activities.
Me find infra with respect to Contention 4B that a hurricane during the repair activity would not be likely to cause a release of r
radioactivity to unrestricted areas.
Moreover, Staff attested that the worst-case accident during the repair would not result in the release of radioactivity to unrestricted areas in excess of the limits imposed by 10 CFR Part 20.
Were such an accident to occur during a hurricane, wind and turbulence would further reduce airborne concentrations (Staff Affidavit at 7).
Thus there is no genuine issue to be heard as to the environmental impact of a hurricane interacting with repair activities, and Amendment 16 is subject to summary disposition.
Amendment 17 states:
The final EIS fails to consider the long term effects of a nuclear waste building next to biscayne bay (sic).
w We assume that "nuclear waste building" refers to the steam generator storage compound (SGSC).
We have already found, in granting summary disposition of Contention 4A, that the location and design of the SGSC would prevent damage to the SGLAs during storms.
We also found that corrosion would not cause leaks to develop during the anticipated storage period on site (See Order dated May 7, 1981).
Finally, we note specifically here that the SGSC will have a 6-inch thick concrete floor which would inhibit release of radioactive liquid, should it leak from the SGLAs (Staff Affidavit at 4).
From these facts we conclude that there is no genuine issue to be heard as to the facts relating to long term effects of the SGSC next to Biscayne
- Bay, and that Amendment 17 is subject to summary disposition.
III.
INTERVENOR'S ANS'klER OPPOSING MOTION FOR
SUMMARY
DISPOSITION The Intervenor on May 19, 1981 filed his Answer Opposing the Motion for Summary Disposition, which had been filed by the Staff on April 27, 1981.
The Staff's motion had also opposed the Intervenor's April 20, 1981, pro-posed Amendment to Contention 1.
The Intervenor on May 12, 1981, filed a pleading captioned "Response to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Motion to Dismiss Contention 1."
Both the Staff and the Licensee on May 18 filed motions to strike this pleading on the grounds that it constituted an unauthorized reply to their answers to the proposed amendment to Contention 1, which were permitted by 10 CFR 52.714(c).
Inasmuch as the Intervenor's answer to the summary disposition motion covers the points raised, in his May 12 response to objections and an alleged motion, it is unnecessary to,determine whether the pleading. previously filed by r
the Staff and the Licensee were motions,
- answers, objections or something else.
The Intervenor first argues that his Contention 1, although definitively
.. read into the record by the Boardand stated with finality in our pre-36/
hearing conference order,nevertheless should be considered as including 37/
his original Contention 10.
Contention 1,
as set forth without objection in our prehearing conference Order entered April 2, 1981, read as follows:
"Section 102(2){C) of the National Environmental Policy Act (42 U.S.C.
54332(2)(C) or 10 CFR 551.5 requires the prepara-tion of an Environmental Impact Statement prior to the Ii Tr. 5-7, 9, 11-15, 19-21, 24-28, 33-36, 43-44, 54.
37/Memorandum and Order. (Prehearing Conference, March 24-25, 1981), entered 4I April 2,
- 1981, pp. 3-4 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 DPR-41) authori-zing the Licensee to repair th~ steam generators now in use in each facility (Tr. 11-54)."
Original Contention 10 read as follows:
"The Commission's NEPA Analysis is inadequate in that it fails to adequately consider the following alternative procedures:
a.
Arresting tube support plate corrosion b.
In-place tube restoration (sleeving) c.
In-place steam generator tube replacement (retubing) d.
Derating e.
Decomissioning f.
Bioconversion g.
Conservation h.
Solar energy i.
Natural gas j.
Coal".
As discussed
~su ra at pp. 3-4, it was intended that Contention 1,
as phrased on March 24,
- 1981, was the only such contention before the Board.
No mention was ever made, at the prehearing conference (March 24) or after the prehearing Order (April 2), that the Intervenor contended that original Contention 10 was included in or to be read with Contention 1 as rephrased.
Counsel for the Intervenor was expressly told at the prehearing conference that "if you want to plead with some specificity now by rephrasing Conten-tioo 1 we would allow you to do so, but you persist in telling us you think that is sufficien..
So, I am giving you warning, it is wholly lacking in specificity as a contention.
And if you want to stand on it, do it at your peril."
39/
After some further colloquy, counsel for the Intervenor stated that after the FES was filed he was prepared "to file with the Board what issues
-- what contentions we intend to assert to prove that the final EIS does Id.
38/
= Tr. 35.
30/
not legally and factually comply with NEPA....<< Accordingly, the Intervenor was granted leave to file an amended Contention 1 to supply the specificity it then lacked. The subsequent'ty issued Ordei also stated:
41/
"The Intervenor is also granted leave to file on or before April 20, 1981, appropriate amendments to Contention 1 in order to plead with specificity the respects in which the FES (due to be filed by the Staff by April 1) does not legally or factually comply with NEPA (Tr. 36, 38-9, 43).
The Staff is granted leave to file a motion for summary disposition of Contention 1 as thus
- amended, on or before May 1, 1981 (Tr. 44-5, 47, 50).
The Intervenor shall, file its response to the Staff's motion for summary disposition qf Contention 1 as
- amended, by May 20, 1981 (Tr.
52).<<4244'he 17 proposed amendments to Contention 1 filed by the Intervenor pursuant to leave granted, did not include original Contention 10.
It was only after the Staff and the Licensee objected to the lack of specificity in the proposed amendments that the Intervenor first attempted to inject the argument that Contention 10 was always a part of Contention 1.
This attempted evasion of the final framing of contentions at and following the prehearing conference cannot be allowed.
The Intervenor has been previously admonished that our procedural rules and orders must be complied with.
43/
We decline to permit this further departure from our orders and directives, 4
and hold that original Contention 10 is not a part of, nor is it to be read in conjunction with, Contention 1 as stated in our controlling prehearing conferenc'e order establishing the issues in this proceeding.
Tr. 36.
4'/T
. 43.
Memorandum and Order, entered April 2,
- 1981,
- p. 4.
42/
Memorandum and Order, entered April 7,
- 1981, p.
2 (...<<Because of the urgencies of time...we will treat the Intervenor's motion on the merits.
However, in the future it is expected that procedural rules will be complied with.")
It is interesting to observe that of the 10 (subparagraphs a-j) alleged defects in the fhEPA analysis which the original Contention 10 (which we have rejected) purported to assert, only three are included in the Intervenor's Statement of Genuine Issue of Fact, which accompanied his Answer Opposing the Notion for Summary Judgment (sic), dated Nay 19, 1981.
This statement of genuine issues of material fact reads as follows:
"1.
Whether the Final Environmental Statement adequately addresses the alt~patives of derating, conservation and solar power."
This statement of genuine issues only addresses subparagraphs d,
g and h
of original Contention 10, so apparently the remainder are abandoned.
T The thrust (and some of the flavor) of the Intervenor's attempts to inject original Contention 10 into the issues framed for hearing, may be discerned from portions of his May 12, 1981 filing, denominated
Response
to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Notion to Dismiss Contention
- 1. It was there stated, in regard to the pleading of Contention 1, that "The Intervenor is not required to voluntarily disclose its entire case to the.Staff and Licensee, but through proper Rules of Procedure the process will disclose to the Staff and Licensee the theory of the Intervenor's case concerning Contention 1"
(p. 4). It was further stated that the "evidence will show that conservation and solar energy would allow the derating and decommissioning of the Turkey Point Plant" (p. 5).
Paragraph 2 of this statement of genuine issues of material fact, relating to alleged radioactive releases to unrestricted areas from storage of waste produced during repairs combined with hurricances, is discussed in Section IV, dealing with Contention 4B, ~ost.
It is clear that the Intervenor's efforts to assert contentions regarding conservation and solar energy are irrelevant and beyond the scope of issues that may be considered in this license amendment proceeding.
We have already discussed (pp.
2 and 10,
~su ra) the controlling principle that an amendment proceeding is limited to a consideration of those issues "directly arising from the proposed change." An amendment proceeding cannot be converted into a vehicle for the reconsideration of previously analyzed environmental impacts from the construction and operation of a new nuclear plant.
The environmental analysis of an amendment is focused only upon the changes arising from the amendment. The consideration of alternatives 46/
in an amendment proceeding does not include the evaluation of alternatives to the continued operation of the plant, even though the amendment might be necessary to enable continued reactor operation. Energy conservation 47/
and solar energy are alternatives to the operation of Turkey Point, rather than alternatives to the proposed steam generator repairs.
Hence they are I
beyond the scope of this proceeding, as they were the subject of prior NRC consideration in operating license proceedings.
48/
Vermont Yankee Nuclear Power Corp.-(Vermont Yankee Nuclear Power Station),
45/
ALAB-245, 8 AEC 873, 875 (1974).
Consumers Power Co. (Big Rock Point Nuclear Plant),
ALAB-636, 13 NRC 46/
Slip opinion p.
26 (March 31, 1981).
Northern States Power Co. (Prairie Island Nuclear Generating
- Plants, 47/
Units 1 and 2), ALAB-455, 7 NRC 41, 46-47, fn. 4 (1979); Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-531, 9 NRC 263,
- 266, fn.
6 (1979).
Final Environmental Statement, July 1972, 5X.
48/
It has been held that the need for power is not a cognizable issue in a license amendment proceeding,'here it had been explored at the prior construction permit and operating license proceedings. Since an evalua-tion of the need for power accounts for electric energy saved through conservation or the use of solar power, a consideration of such alternatives in this proceeding would amount to'an irrelevant reconsideration of the need for power from Turkey Point. Such issues are beyond the scope of this 50/
proceeding.
51/
Finally, it should be recalled that the Intervenor submitted his untimely petition to intervene more than a year after the expiration of the inter-vention period
(~su ra,.p. 2).
In support of showing his ability to make a
- ontribution to this proceeding under the five-factor test for nontimely filings under 10 CFR 52.714(a)(l), the Intervenor asserted that he had experts who would testify as follows:
"The three major areas to be addressed by these witnesses were identified as '(1) the long term on site storage of steam generator lower assemblies in an earthern floor facility; (2) the occupational radiation exposure, and (3) the release of liquid effluents containing radio-
.- activity into a closed cycle cooling canal.'"
(Supple-mental Submission of Petitioner Mark P. Oncavage, June 5,
- 1979,
- p. 2).
Portland General Electric Co. (Trojan Nuclear Plant),
AL'AB-534, 9 NRC
- 287, 289 (1979).
Consumers Power Co.
(Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19, 50/
24 (1974); Northern States Power Co. (Prairie Island Nuclear Generating Plant~ Units 1 and 2), ALAS-455, 7
NRC 41, 46 fn.
4 (1978).
42 Fed.
Rece.
62569.
~
51/
None of these "three major areas" which formed the basis of the intervention remains in issue, and no expert opinions or testimony have been proferred on these issues.
This probably is due in part to the Licensee's responses to the concerns voiced by the Intervenor.
For example, the originally proposed Steam Generation Storage Compound (SGSC) was to be an earthen floored structure with one end closed by concrete stop logs.
The SGSC was to be located in the lay-down area at an elevation of about five feet MLW.
Licensee now plans to make the SGSC a concrete floored building which will meet local hurricane-resistance design standards, and it will be founded on an engineered fill of crushed, compacted limestone at an elevation of 17.5 feet MLM (FPL Affidavit). Again, FPL originally planned to replace the steam generator assemblies using a pipe-cut method, similar to the method being used in the Surry SGS repair.
Surry's experience caused FPL to increase its estimate of occupational exposure from 1300 person-rem per unit to 2985 person-rem per unit.
Primarily because of the high occupational dose associated with the pipe-cut method, FPI determined that an al'ternative, the channel-cut
- method, should be used.
The channel-cut method results in an estimated occupational exposure of 2084 person-rem per unit (FES 4. 1.1.3 and 4. 1.1.4).
IY.
CONTENTION 4B Contention 4B 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 reasonably achievable within the meaning of 10 CFR Part 50 as a
result of a hurricane or tornado striking the site during repairs.
The parties were also put on notice by the Board's February 23, 1981 "Order Accepting Negotiated Schedule" that the Board intended to hear evidence on the relationship between the repair schedule and the hurricane season.
These matters were addressed in the "Affidavitof Robert F. Abbey, Jr.
on Contention 4B" filed by Staff (Staff Affidavit) and the "Affidavitof F.
G. Flugger and H. H. Jabali and P. I'.
Wan on Contention 48" filed by Licensee
{FPL Affidavit).
The proposed steam generator repair for Unit 4 is scheduled to begin in late October,
- 1981, and end about June, 1982.
The repair for Unit 3 is scheduled to begin in late October,
The Atlantic hurricane season begins June 1 and extends through November 30 (FPL Affidavit at 4, Staff Affidavit at 2).
Based on observations from 1886 through 1977, the median beginning date of the hurricane season is June Z6, and the median ending date is October 29 (FPL Affidavit at 4).
Observations from 1871 through 1978 in a 50-mile segment of coastline encompassing Turkey Point show that the earliest recorded hurricane made landfall on September 8 and the latest occurred on October 21 (Staff Affidavit at 1-Z).
Thus, although the pro-posed repair schedule is not based on the timing of the hurricane
- season, it does not substantially.conincide with the historical hurricane season in southeastern Florida (FPL Affidavit at 10, Staff Statement of Material Facts at 2).
The tornado season in Florida is less well defined.
Within 125 ll nautical miles of Turkey Point, 253 tornadoes were. reported in the period 1950 through 1980 (Staff Affidavit at 2).
These storms occurred throughout
32 the year, but the peak month for tornadoes was June (Ibid).
The high frequency of severe tornadoes characteristic of the midwest is not expected in Florida because meterological conditions in peninsular Florida differ from those in the midwest (FPL Affidavit at 6-8).
While midwestern tornadoes often have windspeeds up to 300 mph or even more, tornadoes in southern Florida rarely have windspeeds above 200 mph (FPL Affidavits at I
6-9, Table 1).
The greatest inferred windspeed for a tornado within 125 nautical miles of Turkey Point is between 207 and 260 mph, an Intensity Class, 4 storm on the Fujita Scale (Staff Affidavit at 5; FPL Affidavit, Table 1); the Licensee attests to evidence showing that this particular storm probably had windspeeds that were low in the Class 4 range (FPL Affidavit at 8-9).
The probability of occurrence of hazardous windspeeds at Turkey Point is very small.
Staff estimated the probability of the site experiencing hurricane winds of 150 mph to be about 5 x 10 /yr and the probability of t'ornado windspeeds of 260 mph to be about 1.5 x 10 /yr (Staff Affidavit at 5).
Licensee estimated the probability of a tornado with 200 mph winds occurring at -the site to be 1.6 x 10 /yr (FPL Affidavit at 9).
We conclude that the probability of these events occurring during the repair is some-what less than the estimates
- above, because the repair activities will take place during a period less than a year in length.
The matter of hurricanes and tornadoes at Turkey Point is addressed in the Affidavit of Leonard G. Pardue on Contention 48 (Pardue Affidavit) attached to the Intervenor's Answer Opposing the Mo'tion for Summary Judgment.
The Pardue Affidavit predicts storm surges of 13-18 feet during a Category a
33 hurricane (using the Saffir/Simpson Hurricane Scale) and a surge of more than 18 feet during a Category 5 hurricane.
Whether these values are in terms of mean low water (MLW) or mean sea level (MSL) is not revealed.
The Pardue Affidavit predicts that a "major hurricane" could produce a storm surge 15 feet above MSL, however.
This compares with the estimate by FPL and Staff'hat a
PMH would produce a storm surge of 18.3 feet above MLW.
With regard to the chance that a hurricane will occur at Turkey Point, the Pardue Affidavit estimates the probability of a "major hurricane" occurring in a 50-mile segment of 'Florida coast in which Turkey Point is located to be 5 x 10 per year.
This value compares with Staff's estimate of 5 x 10-4 per year probability that a
150 mph hurricane wind will occur at the site.
The large coastal segment and greater wind range (from 111 mph up) considered by the Intervenor may account for the greater probability value given in the Pardue Affidavit. We need not reconcile these different estimates, 52/
however, to reach a result with regard to the motion for summary disposition of Contention 4B, for reasons which are explained below.
Licensee's schedule for the proposed steam generator repair was not based on the timing of the hurricane season or the probability of tornado occurrence (FPL Affidavit at 10).
FPL attests that consideration of the occurrence of a hurricane or tornado does not alter the safety evaluation of the repair activity reached by FPL or the NRC Staff (Ibid., FPL Affidavit at 11).
The physical work associated'ith removal and replacement of the steam generator lower assemblies (SGLAs) will occur within the reactor Staff also provided a
summary of ~iud hazard probabilities for Turkey Point which ranged from 1.0 x 10 per year for the threshold hurricane wind speed of 73 mph to
.0 x 10 for a hurricane wind speed of 167 mph.
An estimate of 1.0 x 10 obtained for speeds of 105/110 mph agrees well with the Pardue Affidavit estimate.
See Staff Affidavit at 4, Table l.
building; the reactor building is designed to withstand a tornado and the probable maximum hurricane (PMH) (FPL Affidavit at 10).
During the repair the spent fuel will be removed from the reactor building and placed in the spent fuel complex, a structure independent of the reactor building and also designed to withstand a tornado and the PMH. If a wind-borne missile should enter the open equipment hatch of the reactor building during a hurricane or tornado, the missile could not impact the nuclear fuel or cause any other accident no. previously evaluated (FPL Affidavit at 11).
Mater-borne missiles could not enter the open equipment hatch during the tidal surge associated with a PMH because the bottom of the hatch opening is at an elevation of more than 28 feet MLM (Steam Generator Repair Report, Figure 3.2-4).
The storm surge during a
PMH would reach a stillwater level of 18.3 feet
- MLM, with waves on the engineered fill of the reactor building cresting to less than 22.5 feet MLM (A fidavit of Richard B. Codell on Contention 6(a), (b),
(c), and (e),
accompanying the NRC Staff Second Motion for Summary Disposi-tion, dated March 23, 1981, at 2-3).
As the SGLAs are removed from the reactor building, steel suppor saddles will be affixed to them (FPL Affidavit at ll).
The SGLAs will then be placed temporarily in a laydown area at an elevation of 17.5 feet MLM or moved into the Steam Generator Storage Compound (SGSC)(Ibid).
Neither tornadic nor PMH winds would be sufficient to move an SGLA temporarily located on support saddles in an, open area because they weigh 185 tons (FPL Affidavit at 11-12; Staff Affidavit at 5).
Nor would a tornado-borne missile be able to penetrate the steel wall of an SGLA (FPL Affidavit at 12).
Ail If the SGLAs are in the SGSC when the site is struck by a tornado..or
Affidavit at 13-14; See Codell Affidavit cited above and Licensee's Answer Supporting NRC Staff Motion for Summary Disposition of Contention 4A with supporting affidavits).
53/
Notwithstanding the fact that no radioactive release is to be expected from the SGLAs as a result of a storm at Turkey Point during the repair activity, both Licensee and the NRC Staff analyzed the hazard associated with such release were it to occur.
It was shown in the FES (NUREG-0743) that given the worst-case accident involving a 12-foot drop of the
- SGLA, I
the radioactive release, would be within 10 CFR Part 20 limits at the site boundary (FPL Affidavit at 15).
Under storm conditions wind and turbulence would increase the dilution and further reduce airborne concentrations (FPL Affidavit at 16; Staff Affidavit at 7).
Thus, if an SGLA were breached during a storm the resulting hazard would be insignificant.
From the foregoing, we find the following material facts as to which there are no genuine issues to be heard:
1.
The proposed repaic schedule does not substantially coincide with the historical hurricane season in southeastern
- Florida, and the probability of a tornado occurring at the site during the repair activity is remote.
Contention 4A, which stated that the SGLAs would be damaged by storm tides or seawater while stored in the
- SGSC, was summarily dismissed by us in our Order dated May 7, 1981.
Me granted the motion for summary disposition of that contention because the SGSC will be founded on engineered fill with a finished grade of 17.5 feet MLM,and the storage compound will comply with the design requirements of the Code of Metropolitan Dade County, Florida, with respect to wind loadings.
Additionally, the facts showed that the SGLA walls would not be penetrated by corrosion during the period of storage on site.
2.
Physical work'associated with removal and replacement of the steam generator lower assemblies will be conducted inside the reactor building, which is designed to withstand a tornado or hurricane.
3.
A steam generator lower assembly outside the reactor building would be unmoveable by tornado or hurricane winds or wind-driven water.
4.
A tornado-borne missile could not penetrate the steel wall of a steam generator lower assembly.
5.
Steam generator lower assemblies will be adequately protected from tornadoes and hurricanes when stored in the steam generator storage compound.
- 6. If a radioactive release from the steam generator lower assemblies should occur during a storm, the radiological consequences will fall within the permissible radiation levels of 10 CFR Part 20, levels which are applicable to normal reactor operation, rather than accident conditions.
Accordingly, Contention 4B is subject to summary disposition.
V.
FURTHER PROCEEDINGS A.
Termination of Evidentiar Hearin The Board has now granted summary disposition of all of the Intervenor s admitted contentions. There are therefore no cognizable I
54/
contentions that remain to be heard, and hence there is no necessity to
'old an evidentiary hearing.
The authority for terminating the evidentiary hearing, orginally scheduled to commence June 2, 1981,is to be found in the Appeal Board's 55/
decision in Vir inia Electric and Power Com an (North Anna Nuclear Power
- Station, Units 1 and 2), ALAB-584, ll NRC 451 (1980).
In that case, the "Licensing Board granted the Applicant's motion for summary disposition of all issues in its favor and, accordingly, authorized the issuance of the license amendment" (11 NRC at 452).
The Appeal Board affirmed this action granting summary disposition in its entirety.
After reviewing the record regarding alternatives to proposed spent fuel pool modifications, it held that the Licensing Board correctly declined to order a hearing to explore further the Intervenors',suggested alternatives" (11 NRC at 456).
After reviewing the service water cooling system contention, the Appeal Board stated:
54(Original Contention 14 (Memorandum and Order dated April 2, 1981);
Con-tentions 2, 3, 5, 6, 7 and 8 (Memorandum and Order dated April 29, 1981);
Contention 4A (Order dated May 7, 1981);
and Contention 1,
amended Contention 1,
17 proposed amendments to Contention 1, and Contention 4B are summarily dismissed by the instant Memorandum and Order.
55(Notice of Prehearing Conferences (Supplements to Schedule),
dated March 10,
- 1981,
- p. 2; 46 Fed.
~Re
. 17318.
"...at no juncture did fIntervenors] point to anything which might cast doubt upon the Appl icant's thesis that, even should the postulated accident conditions occur, the facility's cooling system would remain capable of maintaining the pool water temperature at a level which posed no threat to the public health and safety.
In these circumstances there was nothin to be heard" (11 NRC at 461 Emphasis supp ied The Appeal Board has described its North Anna decision as follows:
"That the Section 2.749 summary disposition procedures provide in reality as well as in theory, an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues is amply reflected by our recent decision in Vir inia Electric and Power Com an (North Anna Nuclear Power Station, Units 1 and 2, ALAB-584, 11 NRC at 451.
In that proceeding, involving an application for an operating license amendment to permit the expansion of the capacity of a spent fuel pool, the Licensing Board summarily resolved in the applicant's favor all of the intervenors'ontentions....
tlore specifically, because, in response to the a
licant's motion for suamar dis osition, the inter-venors had not demonstrated that a genuine issue of fact existed respecting the environmental superiority of any of their suggested alternatives, we held that as a matter of law none of these alternatiyqs had to be further explored at an evidentiary hearing." ~ /
(Emphasis in original.)
In the instant case, we have held that the alternatives of con-servation and solar power, which allegedly "would allow the derating and decommissioning of the Turkey Point Plant,"are beyond the scope of 57/
this proceeding as a matter of law.
Accordingly, since all of the Intervenor's contentions have been summarily dismissed, there is nothing to be heard and no necessity for an evidentiary hearing.
Houston Lightin and Power Company (Aliens Creek Nuclear Generating 56/
Station, Unit 1, ALAB-590, 11 NRC 542, 550-51 (1980).
Intervenor's Statement of Genuine Issue of Fact, dated t1ay 19, 1981.
The Intervenor argues that 10 CFR 551.52(b)(1) requires a public hearing at which the Staff will offer the FES into evidence.
Section 58/
51.52(b)(1) provides in pertinent part as follows:
"In a proceeding in which a hearing is held for the issuance of a permit, license, or or er, or amen ment to or renewal of a permit, license, or order, covered by 551.5(a),
and matters covered b
this art are in issue, the staff wiTl offer the final environmental impact statement in evidence.
Any party to the proceeding'ay take a position and offer evidence on the aspects of the proposed action covered by NEPA and this part in accordance with the provisions of Subpart 6 of Part 2 of this chapter."
(Emphasis supplied)
As the italicized portions of this section show, the FES is to be offered into evidence only if a hearing is held.
It does not itself require the holding of a hearing if one is not otherwise required.
This section further provides that it applies if NEPA "matters covered by this part are in issue."
Inasmuch as all contentions have been summarily dismissed, there is no necessity for a hearing, and there are no NEPA matters in issue.
Consequently, the provision concerning offering the FES into evidence is not applicable.
@Intervenor's
Response
to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Notion to Dismiss Contention 1, dated May 12, 1981, at pp. 5-6.
B.'etention of Jurisdiction Concernin Radioactive Solid Mastes There remains one matter for which the record is not sufficiently developed to enable the Board to rule with finality.
This subject concerns the alleged storage on site of low level solid waste in "loosely stacked, sealed drums in roped off areas" (Affidavit of Douglas King, dated May 13, 1981, par. 4, 7). It is asserted that the amount of radioactive solid waste to be generated from the prooosed repairs ranges from 1100 to 2300 cubic meters per unit, according to the FES (Id., at par. 8).
59/
It is further asserted in this affidavit that the availability of the Barnwell disposal site is limited, and that the outdoor storage of solid waste in drums is unreasonable in view of the likelihood of hurricanes or tornadoes (Id., at par. 9-10).
The lack of an adequate record on this subject is probably attributable to the short time available to develop Contention 4B and the underlying data.
At the prehearing conference on March 24, 1981, the Board permitted the Intervenor to amend Contention 4 by adding paragraph B,
which raised the question of radioactive releases during the period of repairs (Tr. 56-60).
This action was taken over objections of Staff and the Licensee that it injected new matters and issues when a trial was imminent (Tr. 61-72).
The Board, making a liberal construction of NRC discovery practice, also permitted the Intervenor to make a discovery site inspection and to perform some environmental sampling, subject to reasonable limitations.
60/
FPL estimates that this solid waste will contain 130 to 270 curies 59i of radioactivity (FES, 4.1.2.2).
Memorandum and Order, entered April 2, 1981, pp. 6-10.
60/
- AiR, It was contemplated that such inspection would be conducted expeditiously in view of the tight discovery and trial schedule, and that the parties would report promptly any significant discoveries.
However, the Board received only a somewhat cryptic footnote from the Licensee on April 20, 1981, indicating that the site inspection had been conducted on April 19 and that some undescribed samples had been sent to an independent laboratory for analysis. No other information regarding 61/
this site sampling has ever been received by the Board.
The only other information regarding observations made at the Intervenor's April 19 site inspection came on May 21, in the form of an affidavit by Douglas King executed on Nay 13, contained in Intervenor's Answer Opposing the Motion for Summary Judgment (sic) dated May 19, 1981.
That affidavit 'describes several hundred, 'loosely stacked drums apparently containing low level solid wastes.
- However, due to the posture of the filings made by the several parties and the time pressures of preparing for hearing, no information on this subject, has been received from the Licensee or the Staff.
The Board wishes to keep the record open on the subject of solid wastes, their storage on site in drums, or their transportation or other disposition.
Accordingly,. all parties are requested and directed to furnish reasonably detai1ed and concrete information on Licensee's
Response
to Intervenor's Motion to Continue or Deny Summary Disposition, dated April 20, 1981, at p. 3, fn. 9.
'I these matters, by affidavits or other means tending to establish reliability.
The parties are also requested to state their positions regarding what action, if any, the Board can or should take in this
- regard, including possible license amendment conditions.
Such written information should be lodged with the Hoard (not merely mailed) on or before 4 p.m., Monday, June 15, 1981.
ORDER For all the foregoing reasons and based upon a consideration of the entire record in this matter, it is this 28th day of May, 1981 ORDERED 1.
That the Staff's motions for summary disposition are granted as to all of the Intervenor's admitted contentions (Contentions 1,
2, 3, 4A, 4B, 5, 6, 7, 8, and originally numbered 14),
and each of the said contentions or amendments thereto is di'smissed with prejudice.
2.
That the evidentiary hearing originally scheduled for I
June 2, 1981, is unnecessary, and it is hereby canceled.
~ 3.
That the parties are directed to file by 4 p.m., June 15, 1981, detailed information concerning the handling, storage, transoortation or other disposition to be made of low level solid waste that may be produced at the Turkey Point facility as a result of the proposed steam generator repairs.
4.
That the parties are further directed to state their positions as to whether the Board can or should take any action regarding solid waste resulting from steam generator repairs at Turkey Point, including the imposition of license amendment conditions.
FOR THE ATOMIC SAFETY AND LICENSING BOARD r.
Emmeih A. Luebke ADMINISTRATIVEJUDGE Dr. Oscar H. Paris ADMINISTRATIVEJUDGE Marshall E. Miller, Chairman ADMINISTRATIVEJUDGE
AR,
UNITED') STATES OF AMERICA NUCLEAR REGULATORY CO~SS IOÃ Docket No. (s) 5p-25pSP 50-251SP
)
)
FLORIDA POWER AND LIGET COMPAhY
)')
(Turkey Point, Un'ts 3 and 4)
)
)
~
-"--- )
)
)
CERTIFICATE OF SERVICE I hereby certify that iI have this day served the foregoing document(s) upon each person designated on the official service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance arith the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
/-
aalu o
~'
~
jgu~
Offic o~ 'e Secretary of the Comm' ion
fy
FLORIDA POWER AND LIGHT COMPANY (Turkey Point, Units 3 and 4)
)
)
)
Docket No.(s)50-250SP 50-251SP S~i.. C:- LIST Marshall E. Miller,.Esq Chairm'an-Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
'Dr Emmeth A. Luebke Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Oscar H. Paris AtomicsSafety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C
~n555 Counsel for 1~TcC Staff Office of the Executive Legal 'Director U. S." Nuc1ear-Regula tory Gommission Washington, D.C.
20555 Florida Power and Light Company ATTN:
Dr. Robert E. Uhhig Vice President P.O.
Box 529100 Miami, Florida 33152 Michael A. Bauser, Esq.
,Lowenstein, Newman, Reis, Axelrad
& Toll.
1025 Connecticut
- Avenue, K.W.
Washington, D.C.
20036 Mr. Mark P.
Oncavage 12200 Southwest 110th Avenue Miami, Florida 33176 Norman A. Coll, Esq.
- Steel, Hector and Davis 1400 S.E. First National Bank Building Miami, Florida 33131 Neil Chonin, Esq.
Law Offices of Neil Chonin, P.A.
- 3%00.hmerifirst Building.
One S:E. Th'rd Avenue, Suite 1400 Miami, Florida 3313 Henry H. Harnage, Esq.
Peninsula Federal Bldg., 10th Floor 200 -S.E. First Street Miami, Florida 33131 Robert A, Ginsburg, Esq.
Dade County Attorney 1626 Dade County Courthouse Miami, Florida 33130
"% ~ I E
~ ~
)