ML19261B263
| ML19261B263 | |
| Person / Time | |
|---|---|
| Site: | Hartsville  |
| Issue date: | 01/22/1979 |
| From: | Gutterman A, Sanger H, Wallace L TENNESSEE VALLEY AUTHORITY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 7902150156 | |
| Download: ML19261B263 (29) | |
Text
.
NRC PUBLIC DOCUMENT ROOM p ~
~
G h, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cf h
9%j -
hb +.YR Docket Nos. STN 50-518 9 E STN 50-519 or x>
STN 50-520 STN 50-521 In the Matter of TENNESSEE VALLEY AUTHORITY (Hartsville Nuclear Plants, Units lA, 2A,1B and 2B)
Before the Atomic Safety and Licensing Appeal Board APPLICANT'S BRIEF IN OPPOSITION TO EXCEPTIONS OF WILLIAM N. YOUNG, ET AL., TO THE LICENSING
, BOARD'S OCTOBER 31, 1978, DECISION Herbert S. Sanger, Jr.
General Counsel Tennessee Valley Authority Knoxville, Tennessee 37902 Telephone No. 615-632-2241 Lewis E. Wallace Deputy General Counsel Alvin H. Gutterman W. Walter LaRoche Attorneys for Applicant Tennessee Valley Authority S
7902150/54
. TABLE OF CONTENTS Page STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. Intervenors' "1/4 inch aggregate deposition standard" Was Not Raised Below and Is Not Supported by the Record . . . . . . . . . . . . . . . 4 II. The Licensing Board Correctly Decided To Impose Intervenors' Proposed Standards for Monitoring Plant Operation . . . . . . . . . . . . 7 A. The Licensing Board Properly Found That the Appeal Board's Determination of the Impacts of Plant Operation
. Was Not Affected by the DOI Biological Opinion . . . . . . . . . . . . . . . . . . . . . 7
. B. Even If the Issue Were Presented by TVA's Motion, Intervenors' Affidavits Are Insufficient To Establish a Genuine Issue of Material Fact. . . . . . . . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 12 5
i
. TABLE OF AUTHORITIES Page Cases:
Arkansas Power & Light Co., In re (Arkansas Nuclear One Unit 2),
ALAB-94, 6 AEC 25 (1973) . . . . . . . . . . . . . . . 11 Ashwell & Co. v. Transamerica Ins. Co.,
407 F.2d 762 (7th Cir. 1969) . . . . . . . . . . . . . 10 Liberty Leasing Co. v. Hillsum Sales Corp.,
380 F.2d 1013 (5th Cir. 1967) . . . . . . . . . . . . 10 Lundeen v. Cordner, 354 F.2d 401 (8th Cir. 1966) . . . . . . . . . . . . . 10 Metropolitan Edison Co., In re (Three Mile Island Nuclear Station, Unit No. 2),
ALAB-486, 8 NRC 9 (1978) . . . . . . . . . .. . . . . 5 Pub. Serv. Co. of Indiana, In re (Marble Hill
. Nuclear Generating Station, Units 1 and 2),
ALAB-493, 8 NRC 253 (1978) . . . . . . . . . . . . . . 7 South Carolina Elec. & Gas Co., In re (Virgil C.
- Summer Nuclear Station, Unit 1),
ALAB-114, 6 AEC 253 (1973) . . . . . . . . . . . . . . 11 Tennessee Valley Authority, In re (Yellow Creek Nuclear Plant, Units 1 and 2),
ALAB-515, 8 NRC (Dec. 27, 1978) . . . . . . . . . 11 Federal Statutes:
33 U.S.C. 6 1371(c) (2) (1976) . . . . . . . . . . . . . . 11 Miscellaneous:
10 C.F.R. S 51.52(b)(3) (1978) . . . . . . . . . . . . . 11 6 Moore's Federal Practice S 56.15[3] (1976) . . . . . . 10 10 Wright & Miller, Federal Practice and Procedure 5 2727 (1973) . . . . . . . . . . . . . . . . . . . . 10 11
. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
TENNESSEE VALLEY AUTHORITY ) Docket Nos. STN 50-518
) STN 50-519 (Hartsville Nuclear Plants, ) STN 50-520 Units lA, 2A, 1B and 2B) ) STN 50-521
. APPLICANT'S BRIEF IN OPPOSITION TO EXCEPTIONS OF WILLIAM N. YOUNG, ET AL., TO THE LICENSING
_ BOARD'S OCTOBER 31, 1978, DECISION STATEMENT The November 15, 1978, exceptions of Intervenors, William N.
Young, et al. (Intervenors), seek review of the October 31, 1978, deci-sion of the Atomic Safety and Licensing Board (Licensing Board). The challenged decision concerned the results of consultation with the Department of the Interior (DOI) on the location of the discharge diffuser for the Hartsville Nuclear Plants. Intervenors contend that the Licensing Board erred by voc adopting a "l/4 inch aggregate deposi-tion standard" as a test of the significance of sedimentation resulting from construction of the discharge dif fuser (brief at 6) . Intervenors also contend that the Licensing Board erred by failing to find the existence of a genuine issue of material fact regarding whether the
risk of adverse effects of plant operation is sufficient to require imposition of "some minimum standards for monitoring" those effects (brief at 8) .
Applicant, Tennessee Valley Authority (TVA), opposes the exceptions. In TVA's view, Intervenors' first exception is unsupported by the record and was not raised below. TVA believes that the second exception misconstrues the legal posture of this case and relies on legally insufficient affidavits.
Evidence concerning the relationship between the discharge diffuser location and the mussel bed, and preliminary consultation with DOI was received in the hearing held on February 23-March 3, 1977. The April 28, 1977, initial decision of the Licensing Board was reversed,
. in pertinent part, by this Appeal Board's March 17, 1978, decision (ALAB-463, 7 NRC 341). ALAB-463 held that section 7 of the Endangered Species Act of 1973 required consultation with DOI concerning the potet.uial ef fects of sedimentation from discharge diffuser construction prior to a decision by NRC.1 At the same time the Appeal Board made detailed findings on the risks to the mussels from plant operation, determining that plant operation t il .d not jeopardize the mussels.
1 The Appeal Board also ordered submission of briefs on issues related to the downstream alternate discharge diffuser location. The schedule for submission of those briefs was subsequently deferred on Applicant's motion pending resolution of Applicant's request to the Licensing Board for approval of the upstream location (see order dated harch 29, 1978). Since the Licensing Board approved the upstream loca-tion preferred by Applicant, no briefs have been filed regarding the downstream location.
2
. Almost concurrently with the issuance of ALAB-463, consulta-tion with DOI culminated in the issuance of DOI's March 15, 1978, bio-logical opinion. D01's opinion was totally in agreement with the Appeal Board and Licenslag Board conclusions, and it clearly approved the upstream location for the discharge diffuser (Exhibit 1 to Applicant's motion for summary disposition). On the basis of DOI's biological opinion and affidavits showing that the report submitted to DOI (Exhibit 2 to Applicant's motion for summary disposition) was substantially the same as the evidence previously presented to the Licensing Board, Applicant moved for approval of the upstream location for the discharge
, dif fuser by summary disposition on March 29, 1978.
Over the 8-month period between submission of the motion and the decision, Intervenors submitted three formal responses and two letters opposing the motion. During that time, Intervenors' position before the Licensing Board was eventually narrowed to concerns regard-ing the details of plans for monitoring the effect of diffuser construc-tion and operation. Consequently, representatives if the NRC Staff, Intervenors, Applicant, the State of Tennessee, and DOI met and agreed to a compromise plan for monitoring the effect of diffuser construction (see Exhibits 1 and 2, attached hereto).
Intervenors' first exception attacks the Licensing Board's acceptance of that plan. Although Inter-venors also desired to negotiate standards for a plan for monitoring the effects of plant operation, the other participants in the meeting believed that issue to be premature, and no agreement on operational
. monitoring was reached. Instead, Applicant argued to the Licensing 3
Board that any tequirements for monitoring plant operation should be reservc' for the operating license stage. The Licensing Board decision now under review resolved that matter against Intervenors.
As further discussed below, it is Applicant's position that the Licensing Board decision should be affirmed for the following reasons: (1) The "l/4 inch aggregate deposition standard" proposed by Intervenors was not urged upon the Licensing Board and is not supported by the record; and (2) The Licensing Board correctly found that an operational monitoring plan need not be imposed at this stage because, as already found by the Appeal Board in ALAB-463, plant operation will not adver~_1 y affect the mussels.
ARGUMENT I
Intervenors' "l/4 inch aggregate deposition standard" Was Not Raised Below and Is Not Supported by the Record.
Intervenors' brief in support of exceptions raises, for the first time in this proceeding, a contention that a "l/4 inch aggregate deposition standard is the proper standard to be used with the compro-mise monitoring plan" (at 6). This contention was not raised before the Licensing Board, although during the eight months between the submission of TVA's motion and the Licensing Board's decision, Inter-venors filed an answer and two further replies to the motion, sent two letters to the Licensing Board, and participated in at least four 4
telephone conversations with the Licensing Board. Indeed, Intervenors' final submission to the Licensing Board was a letter stating that their only remaining objection to TVA's motion concerned the need for minimum standards for the monitoring of the effects of plant operation (see Exhibit 2 hereto). In their exceptions, however, Intervenors attack the compromise monitoring plan which Intervenors urged upon the Licens-ing Board. As the sole basis for their position here, Intervenors rely, not on any newly discovered information, but on TVA's May 11, 1978, answers to interrogatories. Those answers preceded all of Inter-venors' written submissions to the Licensing Board, and most of the telephone calls. Since this issue was not raised below, it should not be heard for the first time on appeal (In re Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 27-28 n.36 (1978), citing ALAB-463, 7 NRC at 351-52).
Moreover, Intervenors' position is not supported by the record. Intervenocs are incorrect in their assertion that TVA's
" answer to interrogatory 1, part (d) indicates that an aggregate of 1/4 inch of additional siltation would cause most of the common fresh-water mussels to be unable to maintain themselves" (brief at 5). The exact answer was:
Experiments by Ellis lead to the conclusion that "most of the common fresh-water mussels were unable to maintain themselves in either sand or gravel bottoms when a layer of silt from one-fourth of an inch to one inch deep was allowed to accumulate on the surface of these otherwise satisfactory bottom habitats" . . . (Ellis, 1936) [ Applicant's response to interrogatories at 4].
5
The clear meaning of TVA's answer is the converse of the answer Inter-venors attribute to TVA. In fact, TVA's answer indicates that an accumulation of one inch of sediment, not one-fourth of an inch, was fatal to most mussels in the experiments reported by one researcher.
The application of this laboratory research to mussels in the Cumberland River is not as simple as Intervenors imply. During high flow, the river current and a natural eddy created by the river bottom topography sweep the bed of most deposited materials (tr. 6382-85; Exhibit 2 to Applicant's motion for summary disposition at 15). Consequently, sediment deposited on the mussel bed during low flows may not remain
. there for periods comparable to the yearlong study reported in the paper cited in response to interrogatory 1(d).
NRC inspectors, representatives of DOI, and TVA biologists will review the sediment data as it is collected. If there is a cause for concern, appropriate action will be taken. TVA does believe that accumulations of sediment on a significant portion of the mussel bed as thick as one-fourth of an inch above the background levels would be some cause for concern under most circumstances. However, the sediment data must be viewed in terms of the area af fected, a comparison between the conditions during sediment accumulation and those expected in the future (e.g., speed of river current), the nature of the remaining dredging work, etc. TVA believes that the field biologists from the three agencies should be permitted to exercise their expertise and that modification of the Licensing Board's decision to impose a specific
. standard for sediment thickness, regardless of surrounding circumstances, is not appropriate.
6
II The Licensing Board Correctly Decided To Impose Intervenors' Proposed Standards for Monitoring Plant Oneration.
A. The Licensing Board Properly Found That the Appeal Board's Determinatic' of the Impacts of Plant Operation Was Not Affected by the DOI Biological Opinion.
At the construction permits hearing in Nashville on February 23-March 3, 1977, the Licensing Board received evidence on the potential impacts of construction and operation of the discharge diffuser on the endangered mussels in the Cumberland River (tr. 6310-6410; 6558-91; 7155-7227; 7305-60). In reviewing the Licensing Board's April 28, 1977, initial decision, this Appeal Board found:
Once informed that an endangered species lived in the vicinity of the plant, the Licensing Board was obligated to examine all possible adverse effects upon the species which might result from construction or operation of the plant and to make findings with respect to them. Its failure to do so was error. But that error, as it has turned out, is not fatal.
As the Licensing Board did admit evidence offered by the applicant and the staff as to nonradiological effects and as the intervenors were not precluded from submitting evidence on that subject, we are in a position to evaluate it and to make the findings ourselves [ALAB-463, 7 NRC at 361-62].
This Appeal Board then proceeded to make findings based on the eviden-tiary record,2 specifically holding:
2 Those findings should, of course, be considered the law of the case and should not be lightly overturned. Cf. In re Pub. Serv. Co.
of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-493, 8 NRC 253, 259-60 (1978).
7
- 1. "iT]he Licensing Board was justified in accepting Dr.
Blaylock's premise that the effects of low-level radiation on mussels would not be significantly greater than on snails" (7 NRC at 361);
- 2. "The expert witnesses testified as to three possible (nonradiological] sources of adverse effects on the mussels: chlorine, raising of the water temperature, and sedimentation" (id. at 362);
- 3. "[T]he uncontradicted testimony was that there would not be enough chlorine in the discharged water to be detrimental to the mussels" (id.); and
- 4. "[W]e find that the endangered species would not be adversely affected by heat from the water discharged through the diffuser" (id.).
The Appeal Board then found that determination of the effects of sedimentation, which would result from diffuser construction at the upstream location, must await consultation with DOI (7 NRC at 363-64). Subsequently, TVA received the DOI biological opinion (Exhibit 1 to TVA's motion for summary disposition) finding the potential effects of both diffuser construction and operation are not significant.
Consequently, TVA's motion for summary disposition asked the Licensing Board to find that the DOI opinion did not change any of the conclusions of the Appeal Board and Licensing Board respecting the effects of diffuser construction and operation. Intervenors have not attempted to show that the DOI opinion in any way contradicted the previous Appeal
~
Board and Licensing Board findings. In fact, the DOI opinion was clearly in agreement with those findings. Instead, the Intervenors 8
have -ctght to relitigate the issues aircady decided by the Appeal Board. They argue here that the Licensing Board should have treated TVA's motion as if it presented, for the first time, the issues of the effects of plant operation on the mussels. They assert that the affi-davits of Dr. Neff create a genuine issue of material fact, and cite cases on summary disposition to show that their burden in opposition to such a motion is small. Those cases are not applicable to this situa-tion because the proof relied upon by TVA on the effects of plant operation was not in affidavit form, but at hearing and subjected to full rights of cross-examination and rebuttal. The trial on those
. issues has taken place and Intervenors' burden in seeking to relitigate them must be great. Their brief and affidavits do not meet that burden.
B. Even If the Issue Were Presented by TVA's Motion, Intervenors' Affidavits Are Insufficient To Establish a Genuine Issue of Material Fact.
Intervenors maintain, we believe incorrectly, that the issues presented by TVA's motion for summary disposition permit reliti-gation of the questions of "the effects of the temperature of the effluient [ sic] from the diffuser pipe and the impacts of routine releases of radionuclides upon the endangered mussel species" (brief at 9). Even if they were correct in that position, their affidavits do not ra'.se a genuine issue of fact material to those matters, and their brief fails to specify any particular place in the affidavits or record which does raise such an issue. The affidavits of Robert Jack Neff 9
show that his area of expertise is " Teaching Cellular Physiology" (his publications are predominantly devoted to the physiology of the acanth-amoeba), and do not show any expertise in radiation, malacology, or hydrodynamics. Moreover, the affidavits contain nothing but generalities, conjecture, and unsupported conclusions. Such affidavits would not be sufficient to raise a genuine issue of material fact, even if there had not already been an evidentiary hearing with full right to cross-examination on these issues. "[M]ere general allegations which do not reveal detailed and precise facts will not prevent award of summary judgment" (Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir. 1967); see also Lundeen v. c-edner, 354 F.2d 401, 409 (8th Cir. 1966); Ashwell & Co. v. Transamer., Ins. Co., 407 F.2d 762
~
(7th Cir. 1969); 6 Moore's Federal Practice 5 56.15[3] (1976); 10 Wright & Miller, Federal Practice and Procedure 5 2727, at 551 (1973)).
The affidavits here contain no specific facts about the Hartsville Nuclear Plants, the mussels, or the Cumberland River. There is no contradiction of any of the facts that support the analyses of DOI, the Appeal Board, or TVA's witnesses.
Intervenors rely on this alleged genuine issue of material fact concerning the impacts of plant operation as the sole basis for Intervenors' position that the Appeal Board should establish standards for monitoring the effect of plant operation. However, even were there such an issue, it would not follow that standards for monitoring the effects of plant operation should be defined at this stage. The monitor-ing plan should be designed in light of reliable information about the 10
characteristics of the mussel population, the river, and the plant during the period under study. Because that period still will not begin for several years, there may be significant changes between now and then. Intervenors' reliance on In re Arkansas Power & Light Co.
(Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25 (1973), is clearly misplaced.3 The rationale of ALAB-94 was amplified in In re South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-ll4, 6 AEC 253 (1973). In ALAB-114, the Appeal Board found that ALAB-94 was not authority for the imposition of an operational monitor-ing plan as a condition to a construction permit where that operational monitoring did not play an independent part in the Licensing Board's decisionmaking. Clearly, neither the Appeal Board nor the Licensing Board relied upon monitoring as a basis for its determination that plant operation will not adversely affect the mussels.
3 Intervenors also appear to be arguing that NRC has a special NEPA obligation that is as yet unfulfilled. While this issue too was not raised before the Licensing Board and should not be heard here, it also lacks merit. The Licensing Board's decisions in this matter constitute amendments to the environmental impact statement, 10 C.F.R. 6 51.52(b)(3)
(1978); moreover, the Licensing Board found that there will be no signifi-cant impact to mussels. Too, NRC's NEPA obligations to impose monitor-ing requirements for the protection of water quality are restricted by 33 U.S.C. 5 1371(c) (2) (1976) (In re Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC (Dec. 27, 1978)).
11
CONCLUSION For the foregoing reasons, the Appeal Board should affirm the well-reasoned decision of the Licensing Board.
Respectfully submitted, A
Herbert S. Sanger, Jr7 N General Counsel Tennessee Valley Authority Knoxville, Tennessee
/
'e' A MA L'ewis E.'Wallace Deputy General Counsel
,5 / f./ t.f ($ u Alvin H. Gutterman
/
W. Walter LaRoche Attorneys for Applicant Tennessee Valley Authority Knoxville, Tennessee January 22, 1979
~
, \ (
/ C 't . ,. .
Septenber 25, 1978 John F. Wolf, Esq., Chairman Atomic Safety and Licensing Board 3409 Shepherd Street .
Chevy Chase, Maryland 20015 Dr. J. V. Leeds, Jr.
10807 Atuell Houston, Texas 77096 Dr. Forrest J. Remick 207 Old Main Building Pennsylvania State University .
University Park, Maryland 16802 O n.i! [.. 'oro nc i:%
Re: In the Ibtter of Tennessee Valley Authority .
(Hartsvi_lle Nucl. car _P.la.nts, Units lA, 2A, in and 23)
Docket Noa. STN 50-518, STN 50-519, STN 50-520 and STN 50-521 Gentlemen:
The purpose of this letter is to advise you of the results of the negotiations among the parties regarding the plan for monitoring the impacts of discharge diffuser construction on the tussels in the Cumber-land River.
On September 7, 1978, a meeting was held betueen representatives of the NRC Staff; Willian N. Young, et al. (Intervenors); State of Tennessee; U.S. Fish and Wildlife Service (FUS); and Tennessee Valley Authority (TVA) to discuss the nonitoring plan. The necting resulted in agreement on a plan for monitoring the effects of discharge diffuser construction; however, there remains a disagreement on whether a plan should be formulated at this time in whole or in part to nonitor the impacts of plant operation on the mussels. ,
The participants at the meeting agreed upon the nonitoring plan described in the enclosure to this letter. That plan includes changes to TVA's original plans in response to the comments of Robert Jack Neff and represents a conpromise between the original positions of TVA and the Intervenors. In addition to the changes in the conitoring plan, the Intervenors also sought an opportunity to obtain and revicu TVA's rau
~
conitoring data as it is gathered. As a compromise on that issue, the parties agreed that a representative of Fh'S will observe the first feu days of dif fuser dredging to verify that TVA is adhering to the monitor-ing plan and that any accumulation of sediment on the aussel bed is
SE? 2 31978 EXHIBIT 1 olyistoa CF TAW F8td ,
( (
John F. Wolf, Esq. September 25, 1978 Dr. J. V. Leeds, Jr.
Dr. Forrest J. Remick acceptably small. The representative of FWS also agreed to write a brief report on the monitoring effort, which uill summarize the sediment data collected during those first few days. A copy of that report is to be sent to Intervenors by FWS.
While the parties were able to agree on a monitoring plan for diffuser construction, an area of disagreement remains. Intervenors believe that a plan for monitoring the impacts on the mussels of plant operation should be established at this time. TVA believes that a plant oparation monitoring plan should not be adopted until much nearer to initial plant operaton, because changes in regulatory requirements or the factual setting may make a plan adopted today obsolete in a few years. It is TVA's position that an operational monitoring plan is not an appropriate subject for a construction permit proceeding (cf. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-114, 6 AEC 253 (1973)). At the September 7,1978, meeting, the NRC Staff similarly expressed the opinion that the content of an operational monitoring plan is a matter more appropriate to the operating license stage of this proceeding.
Since the negotiations regarding the monitoring plan for construction of the discharge diffuser have been satisfactorily completed, TVA believes its cotion for summary disposition dated March 29, 1978, is ripe for decision.
Very truly yours, IIerbert S. Sanger, Jr.
f.jf{} General Counsel AllG :FDDI Enclosure cc (Enclosure): See list on page 2
. ( (
John F. Wolf, Esq. September 25, 1978 Dr. J. V. Leeds, Jr.
Dr. Forrest J. Remick IIr. John J. White !!r. Uarren Parker Administrator, Region IV Staff Specialist, Endangered Species Environmental Protection Agency U.S. Fish and Wildlife Service 345 Courtland Street, NE. Asheville Area Atlanta, Georgia 30308 Room 279 Federal Building FM. Joe II. Rossman, Chief Asheville, North Carolina 28301 Nashville Regional Office Water Quality Control Division Leroy J. Ellis III, Esq.
Tennessee Department of Public Health Chancery Building R. S. Bass State Office Building 421 Charlotte Avenue Ben Allen Road Nashville, Tennessee 37219 Nashville, Tennessee 37216 William B.11ubbard, Esq.
Robert B. Pyle, Esq. Office of Attorney General Suite 204 State of Tennessee 170011 ayes Street 450 Janes Robertson Parkway Nashville, Tennessee 37203 Nashville, Tennessee 37219 William D. Paton, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555
MONITOR 177G PLAN FOR MUSSELS DURING DISCHARGE DIFF11SER CONSTRUCTION - HARTSVILLE NUCLEAR FIANTS This monitoring plan has as a goal a co=plete assessment of the impacts of the construction of the Eartsville Nuclear Plants' discharge diffuser.
The keys to the environ = ental conitoring plan for the diffuser construction are the decision points which have been devised for early feedback to accure integrity of the Dixon Island mussel bed. Appropriate mitigative actions to be taken during construction of the diffuser, should signifi-cant perturbations occur, have been incorporated into this plan.
Special conitoring of the discharge diffuser construction vill include the following:
PP.E-DIFFUSER CONSTRUCTION
- 1. Square meter grid samples vill be collected along approxicately 30 transects at 50-foot intervals approximating those established during the Deccaber 1976 mussel survey. The nu=ber of quadrats established on each transect will depend on the width of the mussel bed at that particular transect. The square ceter grid will be placed on the bottom at approximately 20-foot intervals and all mussels vill be carefully removed and examined and immediately returned to the river.
This reassessment of the mussel bed prior to the initiation of diffuser construction is necessary because a visit to the Cumberland River and Hartsville site in July 1977 revealed that mussels were being removed from the Dixon Island mussel bed by commercial mussel fisher =en.
. C (
- 2. Prior to the initiation of instream construction activities, sediments
. in the area of diffuser construction and downstream vill be sampled and characterized as to particle size and total volatile solids. This vill provide a baseline of data for evaluating the deposition of sediments resulting from the excavation activities. The following procedures vill be followed for this activity:
A. Core sampler will be utilized. .
B. Two transects vill be established at the site of dredging--10 sa=ples will be taken.
C. Three transects vill be established on the Dixon Island =ussel bed--15 samples vill be taken.
3 Chemical constituents of the sediments vill be determined prior to the diffuser construction. An elutriate test will be performed to detect any significant release of contaminants in the material to be dredged. Six samples will be collected in the area to be dredged and 3 sa=ples vill be collected on the Dixon Island mussel bed.
Samples vill be analyzed for Hg, Pb, As, Cd, Cu, Zn.
- 4. Sedimentation traps will be placed by Scuba divers at specified intervals along the length of the Dixon Island mussel bed downstream of the proposed dredging operation to estimate the loss of and accumulation of materials in the sediments (to be continued throughout the instream dredging activities). A control station (1 transect) upstream of the dredging operation will be monitored to detect natural sedimentation rates for comparative purposes.
- 5. Scuba divers will search the area from Dixon Island downstream to the upper edge of the Dixon Island mussel-bed and remove any isolated mussel specimens. Any specimens found will be placed on or in the- substrate of an established mussel bed.
. ( (
DIFFUSER EXCAVATION PERIOD
- 1. Sedimentation traps will continue to be placed at the same stations used in the prediffuser excavation period. The traps will be returned twice per eight-hour dredging crew working shift (ence after four hours and once after eight hours) during excavation of approximately the first 1,000 cubic yards of material.
- 2. Turbidity levels of the river above and below the dredging activities will be measured at l-meter depth intervals from surface to the bottom and averaged over the water column to document changes in natural turbidity levels resulting from these activities. Samples will be taken hourly during excavation. Natural turbidity levels of record as defined in the Hartsville Nuclear Plants ER will be the feedback criteria for regulating the rate of instream dredging. Maximum documented levels of turbidity are 85 ppm (JTU) .
- 3. Measurement of light intensity in the water column will be perfor=ed with a submarine photometer both above and below the dredging activities. Measurements will be made hourly during excavation.
A 50 percent reduction in the depth of 0.1 percent of the light transmission at some selected point at the mussel bed relative to an upstream location (above the dredging activities) will be the feedbcck criteria for instituting corrective mitigative actions.
- 4. Should turbidity levels or light penetration data indicate a need for mitigative action, the inspector will report his findings and make his recommendation to the project environmental engineer, who will present these findings and recommenda'. ions to the project manager. The project manager will make the decision on the citigative actions to be taken, i.e., to slow down or halt construction.
.- . ( (
- 5. Dissolved oxygen, pH, conductivity, and te=perature proriles vill be made at upstream and downstream locations to document any perturbations of these paraceters.
- 6. During blasting activities, mussels vill be placed by Scuba divers at established intervals from the area of the blasting to deter =ine if mussels on the Dixon Island bed are harmed by shock waves from these activities.
POST-DIFFUSER CO:!STRUCTION
- 1. A post-diffuser construction survey of sediments in the area of the diffuser and mussel bed vill be conducted to docu=ent any perturbation of river sediments as a result of these construction activities. A total of 5 sanples vill be collected from each of three transects approximating those established in Pre-diffuser construction (2).
- 2. Transects approximating those established during the pre-diffuser construction survey vill be established at 50-foot intervals beginning at the upper end of the mussel bed (CRM 284.1). Square meter samples vill be taken along the transect. Mussels recovered from the square meter grids vill be carefully renoved and examined and immediately returned to the river. This qualitative and quantitative data vill serve as a reevaluation of the muss'lse found on the Dixon Island mussel bed following completion of the diffuser construction activities.
The breeding season for Lampsilis orbiculata is reported to be during August and September, with glochidia being discharged the following June.
Since turcels are mucoid filter feeders, the increase in turbidity
.- . ( (~
levels should pose no problem to mussels during any period of the year.
We therefore recommend that instream dredging activities associated with the discharge diffuser be conducted at any time of the year. However, dredging during the breeding season (August and Septe=ber) vill be . ,
avoided if possible.
S
p (
LAW OFFICES O .41 E ll. E I.I.I S. HIC AltsON. NOEL. STITIIENHON AND RIt'II A IC DSON AN AMsor: A nnoN or ArrouMEYH Twa cuanca ne av.Lc=*c.
429 CHARLOTTE AVENut N AMitvis,tE. TENNEMMEE 3721D JA ME S R. OMER
' TELLPMONE LEROY J. E LLtS. til 535/244 7279 FRANKLIN O flR A S SON MsCHAE L PeOEL wu srER E ~sO~. u GE RALD D. RICHARD 50M September 27, 1978 John F. Wolf, Esq., Chairman Atomic Safety and Licensing Board 3409 Shepherd Street Chevy Chase, Maryland 20015 Dr. J. V. Leeds, Jr.
10807 Atwell Houston, Texas 77096 Dr. Forrest J. Remick 207 Old Main Building Pennsylvania State University University Park, Maryland 16802 n: (- , ,
, Re: In the Matter of Tennessee Valley Authority (Hartsville Nuclear Plants, Units lA, 2A, 1B and 2B)
Docket Nos. STN 50-518, STN 50-519, STN 50-520 and STN 50-521 Gentlemen:
We acknowledge receipt of copy of letter from Herbert S.
Sanger, Jr., General Counsel for Tennessee Valley Authority, dated September 25, with enclosure titled MONITORING PLAN FOR MUSSELS DURING DISCHARGE DIFFUSER CONSTRUCTION - HARTSVILLE NUCLEAR PLANTS. As noted by Mr. Sanger, this monitoring plan represents a compromise between the original positions of TVA and'the Intervenors. For emphasis, I point out that this monitoring plan differs in material respects from another document, which has the same heading, and which was a part of the Department of the Interior file relating to their biological opinion letter of March 15, 1978, which file was furnished to the Board and parties by Mr. Paton on July 21, 1978.
The purpose of this letter is to furnish you the views of the Intervenors concerning the current status of the issue of the discharge diffuser location, with particular reference to the monitoring plan and Mr. Sanger's letter.
The current monitoring plan, letter, is satisfactory to the Intervenors as a p with Mr.hi~.7,an Lan t'o" submitted 3 (q sr CCT O' 1978 EXHIBIT 2 **N UE # "*
^
( (
John F. Wolf, Esq.
Dr. J. V. Leeds, Jr.
Dr. Forrest J. Remick September 27, 1978 Page Two the ef fects, on the endangered species, of construction of the discharge diffuser at the proposed upstream location, subject to one Proviso. Mr. Sanger refers to the compromise under which a representative of the U.S. Fish and Wildlife Service will observe and report on the early stages of dredging for the diffuser. This procedure was agreed to on behalf of the U.S. Fish and Wildlife Service at the September 7, 1978 mee ting, by its representative, Mr. Warren Parker. Since that agency is not a party to the proceeding before this Board, it would not be appropriate for this Board to attempt to bind the U.S. Fish and Wildlife Service to this portion of the agreement between the parties. However, we think it would be appropriate for the U.S. Fish and Wildlife Service to confirm in writing its willing-ness to take the action summarized by Mr. Sanger, and for this Board to order that such a provision be made a condition of a construction permit for the discharge diffuser at the proposed upstream location.
The compromises reached do not resolve all issues before the Board on the TVA's motion for summary disposition. As indicated in the second and fourth paragraphs of Mr. Sanger's letter, there is a disagreement relating to provisions for monitoring impacts on the mussels during plant operation.
However, Mr. Sanger does not accurately state the position of the Intervenors. Our clients do not contend that an operating license stage monitoring plan should be formulated or established at this time. Our position is that, because of this Board's obligation under Section 7 of the Endangered Species Act, to consider all possible adverse ef fects upon the endangered species which might result from construction or operation of the plant, this Board should impose a requirement of some minimum standards for a plan to monitor the impacts on the endangered mussels species as long as the plant is in operation and/or pollutants from the operation of the plant find their way into the Cumberland River. This should be done as a condition to approval of construction of the diffuser at the upstream local 'on, but it does not necessitate the adoption of the monitoring plan, itself.
If the foregoing characterization of our position, contrasted with our position as stated by Mr. Sanger, appears
' more semantic than real, I contrast the detail of the current construction phase monitoring plan with the guidelines recommended by Dr. Neff at pages 9 and 10 of his affidavit,
(,
(
. John F. Wolf, Esq.
Dr. J. V. Leeds, Jr.
Dr. Forrest J. Remick September 27, 1978 Page Three dated August 14, 1978, which affidavit was attached to the response of the Intervenors to TVA's motion for summary dis-position. We thus ask less than Mr. Sanger attributes to us, and I believe the parties are not as far apart on this issue as his letter may indicate. However, the Intervenors are_not able to withdraw their opposition to the upstream diffuser location unless there is this minimal additional protection for the endangered species. At issue is not merely the location of an empty pipe, but the location of the discharge of effluents from operation of the plants.
We believe that the Appeal Board decision cited by Mr. Sanger, as well as other decisions, support our position on this remaining issue.
These matters can be amplified in more detail, but not within the time frame of a prompt response to Mr. San ger ' s letter of September 25, which closes with the statement tb.c the motion for summary disposition is ripe for decision. The recent negotiations were prompted by Mr. Wolf's suggestion or request that the parties attempt to resolve the diffuser location issue without another hearing, or such is my under-standing. The parties have come close to doing this but are unable to agree on a narrow but significant point. We suggest that the Board allow the parties to submit a supplementary memorandum, with additional affidavits if a party so desires, before rendering a decision. We suggest a submission date of October 10 This may obviate the need for an evidentiary hearing or oral argument on this issue.
Yours very truly, Leroy J. Ellis, III LJE:cf cc: See list on page Four
( (
John F. Wolf, Esq.
Dr. J. V. Leeds, Jr.
- Dr. Forrest J. Remick September 27, 1978 Page Four Mr. John J. White Mr. Warren Parker Administrator, Region IV Staff Specialist, Environmental Protecticn Agency Endangered Species 345 Courtland Street, NE. U.S. Fish and Wildlife Servico Atlanta, Georgia 30308 Asheville Area Room 279 Mr. Joe H. Rossman, Chief Federal Building Nashville Regional Office Asheville, North Carolina 28i Water Quality Control Division Tennessee Department of Public Health William B. Hubbard, Esq.
R. S. Bass State Office Building Office of Attorney General Ben Allen Road State of Tennessee Nashville, Tennessee 37216 450 James Robertson Parkway Nashville, Tennessee 37219 William D. Paton, Esq.
Office of the Executive Legal Mr. Alvin H. Gutterman '
Director Attorney for Applicant U.S. Nuclear Regulatory Commission Department of Law Washington, D.C. 20555 Tennessee Valley Authority Knoxville, Tennessee 37902 Mr. Herbert S. Sanger, Jr.,
General Counsel Tennessee Valley Authority Knoxville, Tennessee 37902 4
k
, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
TENNESSEE VALLEY AUTHORITY ) Docket Nos. STN 50-518
) STN 50-519 (Hartsville Nuclear Plants, ) STN 50-520 Units lA, 2A, 1B and 2B) ) STN 50-521 CERTIFICATE OF SERVICE
. I hereby certify that I have served the original and 20 conformed copics of the following document on the Nuclear Regulatory Commission by depositing them in the United States mail, postage prepaid and addressed to Secretary, U.S. Nuclear Regulatory Commission, Wash-ington, D.C. 20555, Attention: Chief, Docketing and Service Section:
Applicant's Brief in Opposition to Exceptions of William N. Young, et al., to the Licensing Board's October 31, 1978, Decision and that I have served a copy of the above document upon the persons listed below by depositing it in the United States mail, postage prepaid and addressed:
Alan S. Rosenthal, Esq., Chairman Dr. John H. Buck Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
. Mr. Jerome E. Sharfman William B. Hubbard, Esq.
Atomic Safety and Licensing Appeal William M. Barrick, Esq.
Board Panel Office of Attorney General U.S. Nuclear Regulatory Commission State of Tennessee Washington, D.C. 20555 450 James Robertson Parkway Nashville, Tennessee 37219 John F. Wolf, Esq., Chairman Atomic Safety and Licensing Board Leroy J. Ellis III, Esq.
3409 Shepherd Street Chancery Building Chevy Chase, Maryland 20015 421 Charlotte Avenue Nashville, Tennessee 37219 Dr. J. V. Leeds, Jr.
10807 Atwell Robert B. Pyle, Esq.
Houston, Texas 77096 Suite 204 1700 Hayes Street Dr. Forrest J. Remick Nashville, Tennessee 37203 207 Old } bin Building Pennsylvania State University James R. Yore, Esq., Acting Chairman University Park, Pennsylvania 16802 Atomic Safety and Licensing Board Panel
~
William D. Paton, Esq. U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission
. Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel James R. Tourtelotte, Esq. U.S. Nuclear Regulatory Commission Assistant Chief Hearing Counsel Washington, D.c. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 This 22nd day of January, 1979.
t v kC G Alvin H. Gutterman Attorney for Applicant Tennessee Valley Authority
.