ML18026A063

NRC Staff'S Answer to Intervenors' Motion to Reopen Hearing Record and Reconsider Partial Initial Decision

ML18026A063
Person / Time
Site:	Saint Lucie
Issue date:	11/24/1975
From:	Ketchen E NRC/OGC
To:	Atomic Safety and Licensing Board Panel
References
Download: ML18026A063 (19)

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g yoi:KI'ilia vagus,R UNITED STATES OF AMERICA NQU2,gg>-5 P M NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POMER AND LIGHT COMPANY Docket No.

(St. Lucie Nuclear Power Plant, Unit No. 2)

NRC STAFF'S ANSllER TO INTERVENOR'S MOTION TO REOPEN HEARING RECORD AND RECONSIDER PARTIAL INITIAL DECISION On October 28, 1975, Intervenors Martin Hodder, et al., filed a motion to reopen the record and reconsider the Atomic Safety and Licensing Board's ("Board" ) Partial Initial Decision.-/ This motion is essentially the same as the May 5, 1975 motion made by the Intervenors and ruled upon by the Board'Order of August 13, 1975.

Both the former and present motions were based upon representations 1

appearing in certain letters and the interpretation of those letters by the Intervenors. In order to place the present motion in perspective, it is necessary to briefly review the letters in question.

F or>da ower 8 Light Com an (St. Lucie Nuclear Power Plant, ns o. artsa Instsal Decision, Environmental and Site Suitability, LBP-75-5, NRCI-75/2, 101 (February 28, 1975);'Florida power a Li ht Com an (St. tunic Nuclear power plant, Unit NHo.

Supp ement to t e Board's Partial Initial Decision re: Applicant's Petition for Reconsideration, LBP-75-25, NRCI-75/4, 463 (April 25, 1975).

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The five letters may be described as follows:

1. Hay 28, 1974 letter from Nr. Peter P. Baljet, State of Florida Department of Pollution Control to Mr. J. J.

Hudiburg, Florida Power and Light Company. This letter is a negative certification under Section 401 of the Federal Mater Pollution Control Act.

2. An undated letter apparently written on November 25, 1974 from Mr..W. J. Barrow, Jr., of the Florida Power and Light Company to Peter P. Baljet of the State of Florida DPC requesting notification as to whether. the DPC intended to issue any further certification in ligh't of the adoption of the EPA regulations appearing at 39 Fed. ~Re . 36176, October 8;,1974.

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3. A letter from Hr. Peter P. Baljet of the State of Florida DPC to Hr. M. J. Barrow, Jr. of FP&L responding that the DPC had no present intention to issue further certification pursuant to Section 401 of the FMPCA.

A letter dated April 24, 1975 from Nr. Hamilton Oven, Jr.

State of Florida DPC to the Intervenor, Martin Hodder, which generally explains the processes associated with issuances of negative 401 certifications.

5. A letter of June 10, 1975 from Mr. John M. Wilcox of EPA to Mr. J. D. Boone Kuersteiner, Special Assistant'Attorney General

&30 for the State of Florida. This letter is in response to a telephone request, the particulars of which are unknown to the Staff. However, the letter appears to only say that the November 25, 1974 letter from Mr. Baljet to Mr . Barrow should not be interpreted as a 401 certification. That letter goes on to explain the writer's interpretation of certai'n legal requirements associated with NPDES permits.

A copy of these letters are affixed as attachments 1'hrough 5.

It should be made cleai at the outset that the May 28, 1974 letter is a valid 401 certification as determined by this Board in its Partial Initial Decision of February 28, 1975. The Board reached that decision after considering the effect of the letter of November 25, 1974 from Mr. W. J. Barrow, Jr. to Mr. Peter P. Baljet. The Board reiterated I

its position in its order of August 13, 1975 in ruling upon Intervenors'ay

5. 1975 Motion to Reopen Hearing Record and Reconsider Partial Initial Decision, a Motion based on information set forth in the April 24, 1975 letter from Mr. Oven to Intervenor Hodder. In confirming its Partial Initial Decision findings with respect to the DPC May 28, 1974 certification of the St. Lucie Unit 2 construction permit, the Board found that: (1) the May 28, 1974 negative certification was unambigious; (2) the negative certification satisfied the FllPCA requirements; and (3) it was final for purposes of issuance of an NRC construction permit for St. Lucie Unit 2.

-4 The basis for the Intervenors'resent motion is the letter dated

'June 10, 1975. The position taken by the Intervenor in this motion is essentially the same as that taken in its May 5, 1975 motion which was disposed of by the Board Order of August 13, 1975. The only difference in the two motions is that Intervenor now uses a different letter as a basis, for their argument. An examination of the June 10, 1975 letter clearly indicates that the Intervenors'ew motion is without merit. In the simplest terms, the May 28, 1974 letter was a proper negative certification and the June 10, 1975 letter in no way refutes that fact. The June 5, 1975 letter does not even mention the May 28, 1974 certification but says only that the November 25, 1974 letter was not to be interpreted as a 401 certification. Moreover, Intervenors do not explain why the June 10, 1975 letter repudiates the May 28, 1974 certification but states only that:

The letter speaks for itself in clearly establishing that no 401 certification has been issued for St. Lucie Unit 2." '

The. Staff submits that the Intervenors are not only factually incorrect but have failed to meet the legal requirement of supporting their motion, II As stressed by the Board in its April 15, 1975 Order in which it upheld the validity of the May 28, 1974 certification, DPC has rightly recog-nized its right pursuant to Section 401(a)(3) to modify its present certification in connection with later permits or licenses to be issued by the Federal agencies involved. The Board also stressed in that Order

CONCLUSION For the foregoing reasons, Intervenors'otion to Reopen Hearing Record and Reconsider Partial Initial Decision should be certified to the Atomic Safety and Licensing Appeal Board, or, in the alternative, should be denied by this Board.

Respectful ly submi tted, dvrard Ketchen Counsel for.NRC Staff Dated at Bethesda, Maryland this 24th day of November, 1975

g Qtlt l fI i,f STATE .OF FLORIDA Q/C)( j)/(

DEPARTMENT. OF POLLUTlON CONTHQL 2562 EXECUTIVE CENTER CIRCLE, EAST 4evl

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MOHTGOMERY BUILDING, TALLAISASSEE, FLORIDA 32301 I3ALJET May 28, 1974 DAViD I-I. LEVIN IVC DIACC>OII CHAIRH*N I

Nr. J. J. Hudiburg

.Executive Vice President Florida Power & Light Company P.O. Box 3100

.hiiami, Florida 33101 Re: Florida Povrer & Light Co.

St. Lucie Plant, Unit No. 2

Dear Mr. Hudiburg:

This is to advise that the Departm nt of Pollution Control, in accordance c it.. Section 401 of the Federal I('ater Pollution Control P~endmcnts of 1972, hereby certifies that as of this date th re are no federa'ffluent, limitations or other effluent limitatic>>s established under Sections 301(b) and

'02 of the Act tha are applicable to the above named facility.

The Department further cextifies that there are no standards establ: hed under Section 306 or 307 that are appl'cable to the above name'acility.

truly yours,'eter P. Baljet~

PPB-.ac. p cc: . I!r. Angelo Cia~husso, Atomic Fncrgr Co.-.Jaission Mr. Pc~u T.'ina E,".':l.'o".im 'ntcl Protc tion r".agency

..r. K. J. Barroi', r., Dept:. of Environmental Affairs

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bc: Mr. 1lamil'ton S. Oven, Jr.<

ATTACHMENT NO. 't

that State certification actions in proceedings before the

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EPA for

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issuance of a Section 402 NPDES dischar e 'ermit for St.. Lucie 2 do not in any way affect the current, and valid, Nay 28, 1974 Section 401 certification issued by the DPC with respect to the NRC construction germit T.o suszsarize, nothing said in the June 10, 1975 letter from EPA to the DPC, with respect to DPC's certification of EPA's forthcoming Section 402 permit for St. Lucie 2 supports Invervenors'ssertion in its October 28, 1975 motion "that no 401 1

Certification has been issued for St. Lucie Unit No. 2."

The foregoing discussion is related to the merits of Intervenors'

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motion. The Staff invites the attention of the Board to the fact that the same motion in essence is presently pending review before the Atomic Safety and Licensing Appeal Board by r'eason of Intervenors'xception number. 5 taken to the Partial Initial Decision of February 28, 1975. In the circumstance, it would be appropriate for this Board to certify this motion to the Appeal Board so that it could be considered in conjunction with Exception number 5.

,Xa ' TATE OF FLORIDA r

%lent DEPARTME . OF POLLUT1ON C NTROL r ~

~ger vv 2562 EXECUTIVE CENTER CIRCLE, EAST QOHTGOMERY'UILDIHG, TALLAISASSEE, FLORIDA 32301 P. DALJKT May 28, 1974 DAVID N. LEVIN CHAlltHAN ivC DiRCCTCA

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~5HRg Nr. J. J. Hudiburg .NOV26 f375 s

.Executive Vice President ~ qlr Florida Po>>ex & Light Company P.O. Box 3100 'b 14iani, Florida 33101 Re: Florida Pouter & Light Co.

st. Lucio Plant, Unit No. 2

Dear Nr. Hudiburg:

'This is to advise that the Departm nt of Pollution Control, in accordance v:ith Section 401 of the Federal Rater Pollution Contxol Amendments of 1972, hereby cert'fies that as of this date th re are no federa'ffluent limitations or other

.... effluent limitations established under Sections 301(b) and

'02 of the Act that are applicable to the above named facility.

The Dcpartmen" further cexti ies that there are no standards establ'.shed unde" Section 306 or 307 that are applicable to the above named facility.

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truly yours I

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Peter P. Baljet~ r PPB:a'p cc: . l!r. Angelo Giambusso, Atomic Energy Co.-.scission Rr. Paul 2',r.".ina, Envi.'orir.:~.ntal Protection Pgor;cy

!'.r. N. J. Barro~', "r., Dept:. of Environmental Affairs bc: !4r. Ilamilton S. Oven, Jr.<

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ATTACe<NT No. 1

STATE OF FLOR I OA DEPARTMENT OF POLLUTlON CONTROL 2562 EXECUTIVE CENTEn CIRCLE, EAST MOr<SC OMEOV nU,'.nI~;

TALLAIHASSEL., FLOlklf3" 3 301 E)ER P OALJfl YZ 0 'F REDEIIICK, JA lti~ ~" e~ i'll~ lJover1;er 25, 1974 .~ Ik ~ k ~

~KAYO g>. g Y.r. 3". Z. Barrow, Jr. p 9 Env'onr ental h ffai rs NOV26 F3.oriana Power s Lieht Post Office Box 3100 Y~aai, Florida 3310l 00+yj/~~

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I Scrag RC: St. Lucie Plant l;nit 2 Dear !Ir. Barzors.

Xn response to your letter o.". Voveirher 25, 1974, we wish to ac'vise you that the Departrent has no present in-tenticn to issue further certificaticn, pursuant. to &ecticnn 4C1 o the Federal tt ater Pollution Control J'ct (PG'CA) with .

respect to thc -"t. Lucie Plant Unit 1;o. 2. Conseauently, our "negative corti..icate" cf Nay 20, 1974 will not, at this time, be rroci.iec'. i.". lig.".t of. the adoption of the re. regula-tion (39 F1 36176, Cctcber 8, 1974j to which you refer in jj'oux let tc;"r ~

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Very truly yours.,

Peter I'. 'X:al jet FEB/hm cc: '!r. P.nc.c'c Giarbusso, 1'.toI-.A.c l're."q;. Corsrissicn E'aul'ra na, I'.nvironr:ertal Protection Arencv .r.

ATTACHMENT HO. 3

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~'k ~ n l STATE OF FLORIDA DEPAR t MENT OF POLLUTION CONTROL I

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2S62 EXECUTIVE CENTLR CIRCI E. EAST MONTGOMERY BUILDING TAI LAldASSEE, FLORIDA 32301 P. BALJET W.O. FREDERICK, JR.

utlvE AACCTQ4l April. 24, 1975 DPg~y llsHRc fogy/)

~O~Q6 l375 y Iu Ha xtin 1! odder, Esquire ~ +'>4 MOllPtl I Sores~

1130 Northeast 86th Street Cocoon Hiami, Florida 33131

Dear Hx. Hodder:

1 As'discussed in our telephone conversation on April 23, 1

1975, the Department of Pollution Coqtrol issued a "negative 401" declaration for St. Lucie Unit No. 2 in kfay of 1974.

That letter stated that in accordance with 'Section 401 of the Federal stater Pollution Contxol Amendment:s 'of 1972 that, there were no federal effluent established under provisions of Sections 301 {b) and 302 of the aforementioned Act that vere apolicable.

Also the Department tated that there were no tandaxds estab--

lished under Sections 306 ox 307 that were..applicable to St.

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Lucie.

Xn November of 1975 the Department further advised Florida ~ ~

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P ower a Li 3.g ht that we had no intent:ion at that. time of modifying

'ur original negative 401 cextiQ.cate. Thxs'doe not m.e a n that

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th Department will not submit to EPA a revised certification when the Department comments on a draft permit x.ssued by F.

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pursuant. to Section 402 of t:he Act. Sections 401 (a)(3), 401 (b) and 401 (d).'he Department. will also participate in any federal bearding on the thermal discharge from the plant under provisions of Section 316(a) of the Act. The Departr~ent vill rticular effluent limitations and monitoring requirements subrrit to HPA developed for St. Lucie Unit 2, that are made part of the conndi- i-tions of certification of the pover plant site, if said si e-

DOa:mo V5NRq Hr. Martin Eloddex April 24, 1975 'a NotI'26 1875 @

e two 1g 4c4tf>>

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should be certified. The Department will request that EPA in-clude in their NPDES permit, issued pursuant, to Section 402, all such discharge and monitoring conditions deemed necessary the waters of the State. to'rotect Sincerely, "Q~,.~~X>g~ s . cd~~

Elamilton S. Oven, Jr.

Administrator, Power Plant Siting EISOZr/bm cc: Boone Kuersteiner Rip Caleen Angelo Giambusso Paul Traina

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'0 STATES E~lfiOIXMENTALPiiOTECTtOi~! ~I=>t(,'f ALGtON lv \ i

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-tt j i'iN!TED 44zi PLACHTBLI.ST., N. C. I

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AYI ANTA, Gi'OBGIA 30)GO 4R( L gP~ <J.

DXVXS JUN i t ~IAc.'iiTOliCEi~2ii'1 JUN i o >MS Dcp".rtrnent o'ot'< tion Contro" Environmental La'LY Section Nx' Jy Do Boone Kucrs tc incr, Esq.

S pccial Ass'is tant At torney General Florid" Department of Pollution Control 2562 Executive Center Circle, East

'allahassee, Florida 32301 Xn Re: Section'401 Certification For the St. Lucie Plant, Unit Ho. 2 of the Florida Power &

Light Company Scar Boone:

Xn response to youx telephone request today X nave undertaken a complete review or our files to ascertain tl>c't:atus of thc permit for

. St. Lucie Plant, Unit ho. 2. >le have no plans as o.. this date to issue a-permit for that un't witi>in thc foreseeable future. As a result we have not prepared a 'draft permit for your comvcnts or to which a Sec-tion 401 Ccrtixication could attach. t!hilc we are co~'izant of thc November 25, 1974, letter from 'ir. "aljct t:o Buzz Barrow, we did not interpret that letter t:o bc 401 Certification.

You will recall t!Iat as pcr our IIcmoranduI4 of:ijrccricnt on permit certification, tlic state of Florida is not required to certify -n

ÃPOES.pcrIrit until after a draft: 'NPDES permit has been prcparcd and ~ ~

submitted or co:;ITcnt. 'Cour certification would tlicn bc ncccssary within 45 days in order to avoid waivint; your 401 certification au-thority. Xn tigris case obviously, wc have not cntcrcd that 45 day period. Alti>ough we arc not cntircly sure of thc intent of thc hovcm-bcr 25 lcttcr, as it was informational, as far -s wc werc concerned, wc did no" interpret thc lettcx'o bc a 401 ccrtif-'cation.

X trust that this lcttcr will suffice to keep you abreast o thc permit"in". status for thc plant. Xf you need additional information, however, please do not hesitate to call.

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ely VSNRC Npyp~

/5 p immi lcox ~ko Gct eral Attorney Legal Support Branch cc: iIK. V. J. Barrow, Jr. eg ~

l4s, nfl.linIII!i. Capri'.I tt> HHI)i t,h )

ATTAGHNENT NO 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Natter of )

FLORIDA POWER 8t LIGHT COMPANY Docket No. 50-389 (St. Lucie Nuclear Power Plant, . I Unit 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO INTERVENORS'OTION TO REOPEN HEARING RECORD AND RECONSIDER PARTIAL INITIAL DECISION,"

dated November 24, 1975 in the above-captioned matter, have been-served on the following by deposit in the United States mail, first class or air mail, this 24th day of November, 1975:

Edward Luton, Esq., Chairman Dr. Narvin M. Mann Atomic Safety and Licensing Board .Technical Adviser U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Board U. S. Nuclear Regulatory Commission Nichael Glaser, Esq., Alternate Mashington, D. C. 20555 Chairman Atomic Safety and Licensing Board Harold F. Reis, Esq.

1150 17th Street,,N. W. Anthony J. Gambardella, Esq.

Washington, D. C. 20036 Lowenstein, Newman, Reis It Axelrad 1025 Connecticut Avenue, N. W.

Dre David L. Hetrick Washington, D. C. 20036 Professor of Nuclear Engineering University of Arizona Norman A. Coll, Esq.

Tucson, Arizona 85721 McCarthy, Steel, Hector 8 Davis First National Bank Building Hartin Harold Hodder, Esq. Miami, Florida 33131 1130 N. E. 86th Street Niami, Florida 33138 Atomic Safety and Licensing Board Panel Dr. Frank Hooper U. S. Nuclear Regulatory Commission Box 84, Route 2 Mashington, D., C. 20555 Bonita Springs, Flor'ida 33923 f Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555

1 Oocketing and Service Section

'Office of the Secretary U. S. Nuclear Regulatory Commission Washington, 0. C. 20555 Bernard H. Bordeni k Counsel for NRC Staff

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