ML19256G377

Supplements NRC 791031 Brief Re Need for Fes Prior to TMI-1 Restart.Suggests ASLB Reserve Judgment Pending Release of Eia Currently Being Prepared by Nrc.Hearing Re Need for Fes Must Not Be Allowed to Develop Into Full OL Hearing

ML19256G377
Person / Time
Site:	Three Mile Island
Issue date:	12/07/1979
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 7912310196
Download: ML19256G377 (11)

Text

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December 7, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD // ,

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LICENSEE'S RESPONSIVE BRIEF ON THE ISSUE OF PREPARING AN FES PRIOR TO TMI-l RESTART Because some of the petitioning parties had raised contentions requesting the preparation of a Final Environmental Statement ("FES") prior to restart of TMI-1, Licensee submitted a short brief on October 31, 1979, setting forth our views on the matter. Licensee concluded that the restart of TMI-1, as dis-tinct from the initial licensing of the facility, was not a

" major Federal action significantly affecting the quality of the human environment" (NEPA S 102 (2) (C) , 42 U.S.C. S 4332(2) (C))

since the restart involved no substantial changes or significant new information from that previously conside ed in the Final En-vironmental Statement Related to Operation of Three Mile Island Nuclear Station, Units 1 and 2 (December 1972).

At the invitation of the Licensing Board Chairman, the petitioning parties were offered an opportunity to file reply briefs; five such filings have been received.1! For the reasons 1/ See Intervenor Three Mile Island Alert, Inc.'s Brief on Issue of Preparing an EIS Prior to TMI-l Restart (dated Nov. 21, 1979);

Union of Concerned Scientists Reply Brief on the Application of the National Environmental Policy Act (dated Nov. 30, 1979); ECNP 1656 261 - continued --

7912310/9 8 h

set forth below, Licensee suggests that the Licensing Board reserve judgment on the issue pending release of the environ-mental impact appraisal currently being prepared by the NRC Staff.

At the time Licensee submitted its initial brief on this matter, we were unaware that the NRC Staff was proposing to prepare an environmental impact appraisal. In their Brief in Response to Contentions (dated October 31, 1979),

the NRC Staff indicated that, as a discretionary matter, they would prepare such an appraisal (see p. 10). Therefore, Licensee now proposes that decision on this issue be reserved pending receipt of the appraisal. At that time all parties could be given an opportunity to argue the sufficiency of the appraisal and the validity of its conclusions as to the need for a supplemental FES.

Licensee does, however, have some comments on var-ious errors which we perceive in some of the intervenors' briefs. These errors are summarized below.

1. The error in demanding that matters to be re-solved as safety issues also be included in a supplemental FES.

A number of the intervenors have identified the damaged status of TMI-2, its proximity to TMI-1, and the ongoing clean-up 1/ -- continued --

Brief on the Necessity of a New Final Environmental Statement Prior to the Decision Whether to Restart TMI-l (dated Nov. 29, 1979); Intervenor Newburry Township TMI Steering Committee's Brief on the Issue of Preparing an EIS Prior to TMI-l Restart (dated Nov. 30, 1979); Letter to the Licensing Board from Marjorie M. Aamodt (dated Nov. 30, 1979).

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effort at TMI-2 as significant new circumstances which require preparation of an FES supplement. ! Such reasoning fails to recognize that resolution of the safety issues associated with the interaction between TMI-2 and TMI-l will necessarily re-solve any environmental problem. One of the mandatory issues set by the Commission in its August 9 Order for adjudication in this proceeding is the interrelationship between TMI Units 1 and 2. The Safety Evaluation Report ("SER") to be issued by the NRC Staff in January 1980, will specifically address that matter. In addition, there are a number of contentions relat-ing to the matter, and the issue therefore will be fully liti-gated before the Licensing Board.

Obviously, TMI-l will not be permitted to restart un-less the health and safety concerns relevant to that issue are resolved to the satisfaction of both the Licensing Board and the Commissioners. Assuming for purposes of argument such a result, there is no legal or logical reason to duplicate either the SER material or the hearing record in a supplemental FES. For, if the health and safety issue is resolved favorably to Licensee, it cannot be said either to constitute "significant new circumstances or information relevant to environmental concerns" or to "signifi-cantly affect the quality of the human environment." Thus, no supplemental FES is required with respect to such safety issues. !

/ See TMIA Br. at 3; Newburry Br. at 4-5.

5! ECNP also argues that some of the short-term modifications ordered by the NRC Staff may not adequately protect health and safety, and, therefore, the environmental consequences of such modifications should be evaluated (ECNP Br. at 2-3. Such

-- continued --

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A similar result was reached by the Appeal Board in Public Service Electric & Gas Comoany (Hope Creek Generating Sta-tion, Units 1 and 2), ALAB-518, 9 N.R.C. 14 (1979). There, intervenors argued that a supplemental FES which discussed al-ternative methods of protecting the Hope Creek plant from river vessel accidents was necessary. In view of its findings on the low probability of such an accident scenario as a safety issue, the Appeal Board concluded that these findings also resolved the FES issue. The Appeal Board explained this result as fol-lows (id. at 38-39):

The Supreme Court has embraced the doctrine, first enunciated in Natural Resources Defense Council v. Morton, 458 F.2d 827, 837-38 (D.C.

Cir. 1972), that environmental impact statements need not discuss the environmental effects of al-ternatives which are " deemed only remote and speculative possibilities." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U. S. 519, 551 (1978). And the same has been held with respect to remote and speculative en-vironmental impacts of the proposed project it-self. As was stated by the court of appeals in Trout Unlimited v. Morton, 509 F.2d 1276 at 1283 (9th Cir. 1974):

An EIS need not discuss remote and highly speculative consequences. * *

• A reason-ably thorough discussion of the signifi-cant aspects of the probable environmental consequences is all that is required by an EIS.

Accord, Environmental Defense Fund v. Hoffman, 566 F.2d 1060, 1067 (8th Cir. 1977); Concerned About Trident v. Pumsfeld, 555 F.2d 817, 828 (D.C. Cir. 1977); Sierra Club v. Hodel, 544 F.2d 3/ -- continued --

a request would lead to placisely the duplication between the SER and FES that most concerns Licensee. Obviously, if the matters raised by ECNP are resolved during review of the SER, there is no need to conduct a further environmental review of the same issues.

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1036, 1039 (9th Cir. 1976); Carolina Environmental Study Group v. United States, 510 F.2d 796, 799 (D.C. Cir. 1975).

We have found that the likelihood of the acci-dent about which intervenors are concerned is so low that the plant does not have to be designed to withstand it. We can think of no logical reason why NEPA should require so much more than do the safety provisions of the Atomic Energy Act and this Commission's safety regulations. See Carolina Environmental Study Group v. United States, loc cit. supra

2. The error in demanding that Class 9 accidents be evaluated in a supplemental FES. Intervenors also argue that a supplemental FES must be developed which evaluates the environ-mental implications of Class 9 accidents.d/ Licensee continues to believe that this is an inappropriate subject for inclusion in any environmental review of TMI-l restart.b! UCS contends, how-ever, that the effect of the TMI-2 accident is "to shatter the basic premise" underlying previous Commission policy to exclude consideration of Class 9 accidents. The basis for this conclu-sion is that, since the accident at TMI-2 was conceded by the NRC Staff to be a Class 9 accident, the process used by the Staff in the past to bound the set of credible accidents is faulty.

Such reasoning ignores two important points. First, the fact that one so-called Class 9 accident may have occurred

-4/ See UCS Br. at 14-23; ECNP Br. at 5-9.

5! See Licensee's Response to Final Contentions of Environmental Coalition on Nuclear Power at 25-27; Licensee's Response to Final Contentions of the Union of Concerned Scientists at 10 & 17-19; Licensee's Response to Amended Contention No. 13 of the Union of Concerned Scientists at 2-6; Licensee's Response to NRC Staff Brief on the Effect of Rulemakings Upon the Issues of the TMI-l Suspension Proceeding at 2-8.

) 74

does not imply that a whole range of other unspecified Class 9 accidents are now likely to occur. Second, the claim that the accident at TMI-2 is now a credible occurrence ignores the short-term actions being required by the Commission to prevent the recurrence of a similar event. It similarly ignores the health and safety finding as to the likelihood of such an accident at TMI-l that this Licensing Board will necessarily have to enter prior to authorizing restart.

Indeed, the error in UCS' position, as Licensee has noted before, is the unwillingness of UCS to identify a single scenario which, in view of the TMI-2 accident, it believes is now credible, but has been ignored by the NRC Staff. In the absence of such an identification, the claim that a supplemental FES must evaluate Class 9 accidents is both lacking in the necessary specificity and without the appropriate basis in fact.

These observations are confirmed by the recent deci-sions of the Appeal Board and the Commission in the Offshore Power Systems proceeding. The Appeal Board there held that Class 9 accidents need not be considered in individual proceed-ings for land-based plants, but were to be considered for float-ing nuclear plants. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 N.R.C. 194 (1978). Significantly, the Commission in its review of ALAB-489 after the TMI-2 accident did not reverse the Appeal Board decision with respect to either floating or land-based plants. See Memorandum and Order, Septem-ber 14, 1979. Moreover, while the Commission indicated its in-1656 266

tent to complete a previously begun Class 9 rulemaking proceed-ing, it directed that, in the interim, the NRC Staff was to bring to the Commission's attention "any individual cases in which [the Staff] believes the environmental consequences of Class 9 acci-dents should be considered" (slip op. at 9-10). Absent such an identification by the NRC Staff and a Commission order directing consideration of the Class 9 accident, the matter is inappropriate for inclusion in a supplemental FES.5[

3. The error in demanding that matters outside the scope of this proceeding be included in a supplemental FES. ECNP, of all the intervenors filing briefs, argues that matters clearly outside the scope of this proceeding -- i.e., radon-222, techne-tium-99, and Reg. Guide 1.109 -- should be evaluated in a supple-mental FES (ECNP Br. at 4-5) . Even if it were determined that a supplemental FES should be prepared, the scope of that FES should be limited to the environmental consequences of matters otherwise within the scope of this proceeding. If this simple rule is not followed, then there is no meaningful limit on the scope of this restart proceeding. Issues recognized by the Li-censing Board as beyond its authority to hear might come in 5/ UCS also cites a letter from the Council on Environmental Quality ("CEQ") urging NRC to include Class 9 accidents in any future impact statements. Even if that were a valid suggestion for new construction permit proceedings, Licensee questions its applicability to this restart proceeding. Moreover, since the NRC is an independent regulatory agency,and not an executive agency, CEQ's suggestions are not binding on the NRC. And, even in the case of an executive agency, a letter from CEO question-ing the validity of excluding a specific matter from an impact statement is not dispositive. Warm Springs Dam Task Force v.

Gribble, 565 F.2d 549, 553-54 (9th Cir. 1977).

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through the back door in the guise of an updated FES. In short order this proceeding would encompass the full scope of an operating license hearing. There is nothing in the Commission's August 9 Order which indicates any desire to so transform this proceeding.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: A/ ~ / k/de/ //

Gec/rge F. Trowbridge [

Dated: December 7, 1979 1656 268

December 7, 1979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Respon-sive Brief on the Issue of Preparing an FES Prior to TMI-l Restart", dated December 7, 1979, were served upon those per-sons on the attached Service List by deposit in the United States mail, postage prepaid, this 7th day of December, 1979.

bd n N /

Geogge'F. Tr'owbridge /

Dated: December 7, 1979 1656 269

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

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquire John A. Ievin, Esquire Chainran Assistant Counsel Atcznic Safety and Licensing Pennsylt ania Public Utility Ccmn'n Board Panel Post Office Box 3265 U.S. Nuclear Pegulatory Ccmnission Harrisburg, Pennsylvania 17120 Washington, D.C. 20555 Karin V. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atanic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 lbbert L. Knupp, Esquire Dr. Linda W. Little Assistant Solicitor Atomic Safety and Licensing County of Dauphin Board Panel Post Office Box P 5000 Hermitage Drive 407 North Front Street Raleigh, North Carolina 27612 Harrisburg, Pennsylvania 17108 James A. Tourtellotte, Esquire John E. Minnich Office of the Executive Iegal Director Chairman, Dauphin County Board U. S. Nuclear Pegulatory Camnission of Camnissioners Washington, D.C. 20555 Dauphin County Courthouse Front and Market Streets Docketing and Service Section Harrisburg, Pennsylvania 17101 Office of the Secretary U. S. Nuclear Pegulatory CcInnission Walter W. Cohen, Esquire Washington, D.C. 20555 Consumer Mvocate Office of Censurer Mvocate 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 1656 270

Jordan D. Cunningham, Esquire Karin P. Sheldon, Esquire Attorney for Newberry '1bwnship Attorney for People Against Nuclear T.M.I. Steering Ccmnittee Energy 2320 North Second Street Sheldon, Harmon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006

'Iheodore A. Adler, Esquire Widoff Peager Selkowitz & Mler Ibbert Q. Pollard Post Office Box 1547 Chesapeake Energy Alliance Harrisburg, Pennsylvania 17105 609 Montpelier Street Baltimore, Maryland 21218 Ellyn R. Weiss, Esquire Attorney for the Union of Concerned Chauncey Kepford Scientists Judith H. Johnsrud Sheldon, Harmon & Weiss Environmental Coalition on Nuclear 1725 Eye Street, N.W., Suite 506 Power Washington, D.C. 20006 433 Orlando Avenue State College, Pennsylvania 16801 Steven C. Sholly 304 South Market Street Marvin I. Iewis Mechanicsburg, Pennsylvania 17055 6504 Bradford Terrace Philadelphia, Pennsylvania 19149 Frieda Berryhill, Chairman Coalition for Nuclear Power Plant Marjorie M. Aamodt Postponement R. D. 5 2610 Glendon Drive Coatesville, Pennsylvania 19320 Wilmington, Delaware 19808 Jane Iee Gail Bradford R. D. 3, Box 3521 Holly S. Keck Etters, Pennsylvania 17319 Iegislation Chainnan Anti-Nuclear Group Pepresenting York 245 West Philadelphia Street York, Pennsylvania 17404 1656 271