ML18044A660
| ML18044A660 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 03/10/1980 |
| From: | Barth C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Sinclair M GREAT LAKES ENERGY ALLIANCE |
| References | |
| NUDOCS 8003190519 | |
| Download: ML18044A660 (8) | |
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Mrs. Mary Sinclair Great Lakes Energy Alliance 5711 Summerset.Ori ve Midland, Michigan 48640 March 1 n, 1 g8ri In the Matter of Consumers Pm\\/er Company (Palisades Nuclear Plant)
Docket No.50-255SP
Dear Mrs. Sinclair:
Attached is the. Commission's Order i'n Surry which directs the Staff to prepare an environmental impact statement reg~rding the replacement of steam qenerators in the Surry facili~y.
f Sincerely, Charles A. Barth Counsel for NRC Staff
Attachment:
As Stated cc:
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DISTRIBIJTimJ Rarth
\\I' oodhead ll. Silver OP'P'ICI:~
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Charles Bechhoefer, Esq.
Dr. George C. Anderson Dr._ M.. Stanley Livingston Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Panel Michael I. Miller, Esq.
Martha E. Gibbs, Esq.
Judd L. Bacon, Esq.
Docketing and Service Section nF.Ln
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
John F. Ahearne, Chairman Victor Gilinsky Richard T. Kennedy Joseph M. Hendrie Peter A. Bradford In the Matter of VIRGINIA ELECTRIC POWER CO.
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(Surry Nuclear Power Station,
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Units 1 and 2)
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MEMORANDUM AND ORDER e
CLI 4 DOCKETED USN RC 41980...
3; Docket Nos. 50-280 50-281 The Conunission has before it for sua sponte review three decisions by the Director of the Office of Nuclear Reactor Regulation on petitions!! filed under 10 CFR § 2.206 involving the steam generator repair at the Surry Nuclear Power Station.
On January 29, 1980, the Conrnission, pursuant to 10 CFR § 2.206{c}{l),
took review of the three decisions on the issue of the need for an environmental impact statement regarding the proposed repair.
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Ji The three petitions are from the North Anna Environmental Coalition (filed December 29, 1978; denied February 1, 1979); the Environmental Policy Institute {filed February 20, 1979, denied April 4, 1979); and the Potomac Alliance, Citizens Energy Forum, Inc., Truth in Power, Inc., and the Virginia Sunshine Alliance (filed April 18, 1979, denied October 24, 1979).
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2 The primary issue presented by the repair,2/ and the sole issue considered on the merits in this Corrmission review, is whether the NRC's action in approv-ing the repair is one "significantly affecting the quality of the human environ-ment" for purposes of the National Environmental Policy Act (NEPA),3/ and there-fore one that requires an environmental impact statement. This admittedly vague test, and ~he lack of definitive criteria that can be used in applying it, leaves the Commission and its Staff with a difficult decision in many cases.
The circumstances of this case presented the Director with just such a difficult decision.
Our review has focused on the occupational radiation exposure that the I
I repair program will entail because we believe that this adverse environmental impact is the only one associated with the repair program that might be considered significant.
We have carefully examined the Director's Decisions and the bases therefor, and are unable to determine from the data and arguments presented by the Director whether the occupational radiation exposure involved here is signi-ficant.
The Director's Deci~ions rest essentially on a comparison of the impact of the radiation exposure resulting from the repair with the net savings in total occupational exposure resulting from operation using repaired steam generators y
When this issue first arose, both units at Surry were the subject of the petitions. At this point however, repairs at Unit 2 are essentially completed and the repairs at Unit l are scheduled to begin in June of 1980.
Hence, the need for an environmental impact statement for the Unit 2 repairs is moot.
However, the issue of the need for a statement for the Unit l repair is very much alive and is the focus of this Commission review.
The National Environmental Policy Act of 1969, Pub. L. No.91-190, 83 Stat.
852 as amended by Pub. L. 94-83, 89 Stat. 424, 42 U.S.C. §§ 4321 et~*
3 instead of defective ones, and a comparison with the incidence of cancer for the worker population due to causes other than the repair at Surry.
The first com-parison is relevant to the question whether the expected benefits of the action outweigh the environmental costs, which is distinct from the question whether the expected environmental impact of a federal action is sufficiently great to require an impact statement.
Even if on balance the result of the Federal
- action is beneficial, the proper criterion on which to base the decision whether to prepare an EIS is the significance of the action. 4/ Hence, the.fact that the occupational exposure at Surry (2070 man rems for the repair at each unit) is expected to be less than the occupational exposure resulting from continued operation with defective steam generators over a period of four years is a valid consideration in assessing the merits of the repair once the requirements of NEPA have been satisfied, but has no bearing in detennining the threshold ques-tion of the "significance" of the exposure and the attendant decision whether to prepare an environmental impact statement.
The Director's second* basis, comparing the occupational exposures to the number of worker deaths due to cancer from risks unrelated to the repair, neces-sarily entails a judgment regarding the significance of these other risks. More specifically, it implies the proposition that these other risks are either not significant or that a small percentage of them is not significant. However, nothing in the Director's Decisions establishes this proposition.
Thus the comparison, without more, does not enable us to determine whether the exposures here are significant.
See Regulations For Implementing The Procedural Provisions of NEPA, 40 CFR 1508.27(b)(l).
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Given this, and given the controversy in the scientific conununity as to the effects of such exposures, we are unable to determine whether the environmental impacts here aresignificant. Therefore, we believe that the preferable course of action in the circumstances of this case is to prepare an environmental impact statement on the repair.
Accordingly, we hereby direct the Staff to expeditiously prepare and issue an environmental impact statement on the proposed repair at Unit 1.
Chairman Ahearne and Convnissioner Hendrie dissent from this decision. 5/
It is so ORDERED.
For the Commission Dated at Washington, D.C.,
this ~day of March, 1980.
Section 201 of the Energy Reorganization Act, 42 U.S.C. § 5841 provides that action of the Corrmission shall be determined by a 11majority vote of the members present.
11 Had Co111T1issioner Gilinsky been present at the meeting he would have voted with the majority.
To enable the Commission to proceed with this case without delay, Chairman Ahearne, who was a member of the minority on the question up for decision, did not partici-pate in the formal vote. Accordingly, the formal vote of the Corrmission was two to one in favor of the decision.
In the Matter of CONSUMERS POWER COMPANY I
ij,E_I.A TED CORHESPO!l.'DE.~CE.
DOCKET N;r.~BER SD-'l t~
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CIVIL PENALTY Addt 1 l Di st. :
Dick Silver, NRR Sam Bryan, I&E D. Thompson, XOOS Victor Stello, Jr., I&E James Keppler, Reg. III D. Boyd, Reg. III
~Docketing & Service Sectiof'.l ASL BP AS LAP
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Michael I. Miller Esq..
Isham, l incoln & Beale * * *
- One First National Plaza
- Suite 4200 Chicago, Illinois 60603.
Dear Mr. Miller:
This letter is in response to your letter of February 21, 1980, \\*1hich.
enclosed "Consumers Power C0;'T!pany's First Round of Interrogatories and
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Request for the Production of Documents by the. r!uclear Regulatory CorTiission*.
- We intend to answer this and future infonnal discovery requests insofar as these requests encompass matters which are appropriately discoverable in this case. To the extent information you seek is relevant and necessary to a proper decision in this matter, we believe we can accor.nodate your request inforr.ially and it will, therefore, be unnecessary to insist on your strict c~apliance with the fon;ial discovery*mechanisms contemplated in 10 CFR 2.720
. -ar.d 2.744 as* a prerequis.ite to your obtaining such infonnation.
He wish to infonn you, however, that we do not intend to provide any ans\\*rers to several requests made in your February 21st filing: specifically, items 2(b), (c) and (d); 3; 4; 5 1-n part; 6(b)(ii) 1n part; 7{b){11) in part; 8(b}(f1) in part; 9; 11 in part; 12(f) and (g)i 12(1) in part; 13(f) and* (g);
13(1) in part; 14{a)(iv), {v), (viii), and (ix); and 17 in part. The thrust of these questions is to delve into the thought~ of each person on the NRC staff who may have participated in the internal deliberative process that led to the decision by the Director of Inspection and Enforcement to impose cfvil penalties against Consumers Pa.~er Company.
In our view, such an 1nquiry is neither relevant nor.necessary to a proper decision by the Ad~fnistratfve law Judge in this case. Moreover, we do not believe that the information you seek in these questions is properly discoverable.
The issues in thfs case do not concern the indi.vidua1 opinions of mer:tbers of. ~
the staff in proposing the imposition or non-imposition of a civi1 penalty against Consumers P0\\'1er Company. Those persons who may have advised or partici-pated in the process leading to the Director's December 20th Order - indeed.
including the Director himself - are not the decf sionmakers in this case. It is Judge S~ith who must now deterr.i'fne (1) whether Consur.~rs Power c~~pany corrrn'ftted the alleged violations and (2) whether civil penalties are "rtarranted.
Of course. the NRC staff has the burden of going forward on the issues in this I
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In thfs regard,. let me :refer you to the decision of the Ator:1ic Safety and *
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licens1ng Appeal Board in Rad1at1on Technoloox. {ALA!3-567, Oct. 15, 197q),
petitfon for revfew oenfed, January 4 1 1980. In that case, the licensee argued that 1ts due process rights had been violated, because the licensee did not*.
have the opportunity to cro~s.-examine the Director regarding stater.lents made_ to _.
him by other NRC personnel that led to the Director's detero1nation to ir.1pose civil penalties. The Appeal Soard.rejected this argument:
aThe ans\\*1er to this* contention* is that ft rests on a oisconception.
The Director is not the ultimate fact finder in civil penalty r.iatters.
Cor.:nission* regulations afford one from who:n a c1vi1 penalty fs. sought the right to a hearing on the charges against it. 10 CFR §2.205(d) and (e). At that hearing, the Director must prove his allegat1ons by a* pre-ponderance of the reliable, probative and substantial evidence. It is the presiding officer at that hearing," not the 01rector, \\*:ho finally detem1fnes on the basis of the hearing record whethar the charges. are sustained and civil penalties warranted." Id., Slip Op. at 6-7*.
The Appea 1 Board went on to say:
uA licensee who tMnks the Director has been ill-advised or mistaken has a remedy. It is not to crcss-exar:i1ne the Director's thought processes but to nake hfm prove his case at an* impartial hearing.*
Id., Slip Op. at 8.
Although you may be styling your argument a bit differently, the Co~pany's position is not unlike that tal:en by Radiation Technology. He think, therefore, that the App~al Bo~rd's decision is equally applicable here.
\\*!hile we intend at this point to anst;er your remaining requests, we qo not intend to Haive by this letter any other objections to those re~ucsts that r.1ay becorne apparent_ppon further analysis. We also note that your requests in itei"!'lS 12, 13, and 14 enco:ilpass for the most part documents. and records which are publicly available in the COi-;mission's public document ro0:12.
To the extent.
that the staff may be able to easily identify the requested materials, hO\\'fever, h~ will make every effort to acc~-:r.iodate your requests.
Sincerely,
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, J Jai'7!eS P. r~urray Director and Chief Counsel Ru1e-'iaking and Enforcencnt Divisfon Office of Execut1ve legal Director cc: Ho~ *. -~~-~"-~-* __ sm_~t~~~*~--~f't/:~~-*,_ ~
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