ML19345H102

Response Opposing Sholly 810409 Motion to Reject NRC 810330 Eia on Proposed TMI-1 Restart.Motion Should Be Treated as Late Filed Contentions & Fails to Meet Late Filing Requirements.Certificate of Svc Encl

ML19345H102
Person / Time
Site:	Three Mile Island
Issue date:	04/20/1981
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8104300495
Download: ML19345H102 (13)

Text

I LIC 4/20/81 i

B 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ggggg7so D I usNRC ,

BEFORETHEATOMICSAFETYANDLICEhSINGBOARD gpR 2 31901P 7- j I

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l METROPOLITAN EDISON COMPANY ) Docket No. 50-289 i

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(Three Mile Island Nuclear ) e g  !

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LICENSEE'S REPLY TO SHOLLY MOTION 7 AP y g N M_-

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TO REJECT THE NRC STAFF ENVIRONMENTAL U ia%Foo 'II l IMPACT APPRAISAL ON TMI-l RESTART ,

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On April 9, 1981, Mr. Sholly filed a motion to t -

the NRC Staff's Environmental Impact Appraisal by Division of Engineering Evaluating the Proposed Restart of Three Mile Island l

Nuclear Station, Unit 1 (EIA), filed by the Staff on March 30, ,

1981. The motion complains that the EIA fails to address (1) l the environmental consequences of Class 9 accidents, (2) the l

potential impact of TMI-2 clean-up on TMI-1 operations, an~d (3) 1 '

l socioeconomic impacts arising from the restart of TMI-1. In the alternative Mr. Sholly requests leave to pose new contentions dealing with the same alleged deficiencies in the EIA.

A. Licensea's Procedural Objections In substance, Mr. Sholly seeks to revive NEPA conten-tions which he voluntarily withdrew over nine months ago on June 5, 1980 (Intervenor Steven C. Sholly Reconsideration of Con-tentions). The withdrawn contentions were Sholly Contention 12 k 810430n H 5

and a portion of Sholly Contention 10. Sholly contention 12 und its accompanying Basis asserted the need under NEPA for an environmental impact statement covering, among other impacts, class 9 accidents and psychological distress. The withdrawn portion of Contention 10 included the impact of accidents at TMI-2 on the operation of Unit 1. As explained in Mr. Sholly's June 5, 1980 notice of withdrawal, this portion of Contention 10 " calls for an environmental impact analysis of the cleanup of TMI-2 with regards to the impact on operations of TMI-1. "

Thus the claimed need for environmental impact analysis in all three areas identified in Mr. Sholly's present motion were the subject of contentions initially advanced and subsequently with-drawn by Mr. Sholly.

At best Mr. Sholly's motion should be treated as late-filed contentions and judged by the five factors controlling j

late filings under the Commission's Rules of Practice:b!

1. Good cause. There is no excuse for seeking now to resurrect contentions withdrawn by Mr. Sholly over nine months ago. The EIA was not, of course, available at the time of with-drawal. But Mr. Sholly was at that time already on notice of the positica that the Staff would take concerning the need of environmental analysis under NEPA of Class 9 accidents and psy-chological distress. (NRC Staff Position on Need to Consider Class 9 Events, dated January 31, 1980, pp. 3-4; Brief of NRC 1/ Mr. Sholly's failure to address these factors constitutes a further deficiency in his motion. Licensee has elected .

in the interest of time to take the initiative in address-ing the five factors.

Staff on Psychological Distress Issues, dated October 31, 1979.)

Mr. Sholly was also on notice of Licensee's position on the need to address the impacts of TMI-2 cleanup activities on TMI-l in I

an environmental impact statetaent. (Licensee's Responsive Brief on the Issue of Preparing an FES Prior to TM1-l Restart, dated l l j

December 7, 1979,lpp. 2-5.) There were no surprises in the EIA.

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2. Availability of other means to protect Mr. Shelly's interest. As to two of the potential impacts which Mr. Sholly now seeks to resurrect as NEPA issues (Class 9 accidents and the impactofTMI-2cheanuponTMI-1), Mr. Sholly has had ample oppor-i tunity to address the same impacts as safety issues. However, in addition to withdrawing Contentions 12 and 10 on June 5, 1980, 1

Mr. Sholly also withdrew his safety contention on Class 9 acci-dents (Contention: 17) by Memorandum to the Board and parties dated December 23, 1980. Mr. Sholly cannot now be heard to complain of I

a situation of his own making.

3. Assistance in developing a sound record. Mr. Sholly has himself already belittled his competence to addres the NEPA legal issues rais d by his Contentions 12 and 10 and now sought to be renewed in his motion. (Intervenor Steven C. Sholly Recon-sideration of Contentions, dated June 5, 1980, pp. 2-3). Licensee does not disparage Mr. Sholly's ability to make substantive con-tributions on technical issues. Mr. Sholly is not, however, by his motion offering to supply technical information for analysis.

He would instead have the NRC Staff produce additional work and studies. Further, Mr. Sholly's sporadic attention to the hearing I

since he joined the UCS Staff on February 1,1981, and the demands

1 of his new position to which he refers in this December 23, 1980 Memorandum,' are not reassuring as to his ability to make useful and timely contributions to matters which he has pre-viously chosen not to pursue.

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4. Representation of Mr. Sholly's interest by other participants. Two other contentions in this proceeding (CEA-1 and TMIA-8), on which the Board deferred ruli,ngs, raise the issue as to whether an impact statement is required to address the issue of psychological stress and related socioeconomic impacts. In Licensee's view the Commission's Memorandum and I order dated December 5, 1980 -(CLI-80-39) has effectively re-moved from this proceeding the consideration of psychological distress issues. In any event, however, whatever is left of Mr. Sholly's interest in this issue is still represented by the CEA and TMIA contentions.

No other intervenor contention addresses Mr. Sho11y's interest in an impact statement covering class 9 accidents or the impact of TMI-2 cleanup on Unit 1.

5. Broadening the issues and delay inthe proceeding.

In resurrecting his Contentions 12 and 10 Mr. Sho11y's motion clearly would broaden the issues and delay the proceeding. In Appendix B to his motion Mr. Shelly acknowledges the potential l

for delay but seeks to lay the blame for delay on the NRC Staff for failure "to fulfill its commitment to publish an EIA in the early stages of this proceeding." To begin with, the Staff made no such commitment. Instead, in response to an inquiry by the Chairman of the Board at the November 9,1979 prehearing ccnference, 1

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Staff counsel projected the issuance of an EIA in the "same ceneral time frame that we hoped to have completed our safety review," adding that "[ilf I had to pick a date I would pick January." (Tr. 374-5, emphasis added) As the Board and Mr.

Sholly well know, the Staff's safety review is still not com-pleted. Further, Mr. Sholly acknowledges that he was informed by the Staff on February 29, 1980, that there was no schedule set for the filing of the EIA. More importantly, Mr. Sholly cannot complain of Staff delay in the issuance of the EIA when, by virtue of his withdrawal of contentions, the Staff h'ad every reason to believe he had abandoned his interest in the matter.

A balancing of the foregoing five factors clearly mandates the denial of Mr. Sho11y's motion.

B. Licensee's Substantive Objections Licensee also objects on substantive grounds to ex-l panding the EIA to cover the three issues sought to be injected by Mr. Sholly's motion.

1. Class 9 Accidents.

At the outset it needs to be emphasized that the purpose of the present hearing is to decide whether to lift a suspension of operating authority for a reactor which prior to the suspension had already been in operation for a number of years. Lifting the suspension will not result in new environ-mental impacts or increase the likelihood or consequences of a Class 9 accident. On the contrary, the restart conditions pro-posed by the Staff and accepted by Licensee are all designed to i

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minimize the likelihood and/or consequences of such an accident.

For these reasons Licensee does not consider the lift-ing of suspension of TMI-l's operating authority to constitute a major federal acticn significe.tly affecting the environment.

Moreover, as pointed out by the Staff in the EIA (pp. 12-13),

the matter is settled for this hearing by the Commission's In-terim Statement of Policy (Policy Statement) dated June 13, 1980 and published at 45 Fed. Reg. 40101. While the Policy Statement mandates Class 9 accident reviews for many future impact state-ments, it contains the following direction for ongoing proceed-i

! ings:

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" Thus, this change in policy is not to be construed as any lack of confidence in con-clusions regarding the environmental risks of accidents expressed in any previously issued Statement, nor absent a showing of similar special circumstancas, as a basis for opening, reopening, or expanding any previous or ongoing proceeding."

The TMI-l restart hearing was clearly an ongoing proceeding at the time of issuance of the Policy Statement, and the Commis-sion has directed that the proceeding not be expanded to encom-pass the commission's new approach to the evaluation of Class 9 accidents.

Mr. Sholly first appears to argue that the restart of TMI-1 involves "special circumstances" within the meaning of the above-quoted statement and thus that the statement is inap-plicable to this hearing. In this argument Mr. Sholly is appar-antly the victim of his own misquotation of the statement (appear-ing at page 4 of his motion), which omits the word "similar"

before the words "special circumstances."S/ The word "similar" has clear antecedents in the Policy Statement, namely the type of special circumstances enumerated in earlier portions of the Policy Statement and summarized in footnote 17 at page 12 of the EIA. These have nothing to do with TMI-1.

Mr. Sholly next argues that inclusion of an evaluation of Class 9 accidents in the EIA is compelled by another sentence in the Policy Statement reading as follows:

"It is the intent of the Commission in issu-ing this Statement of Interim Policy that the staff will initiate treatments of accident considerations, in accordance with the fore-going guidance, in its ongoing NEPA reviews, 1.e., for any proceeding at a licensing stage c

where a Final Environmental Impact Statement has not yet been issued."

Mr. Sholly reads this sentence to require a class 9 accident evaluation in the EIA because no FES has been issued for TMI-l l in the restart proceeding. Mr. Sholly's reading is not sup-ported by the wording of the sentence in question.2/ It is also inconsistent with the first-quoted statement above that the Commission's " change in policy is not to be construed as any lack of confidence in conclusions regarding the environmental risks of accidents expressed in ang previously issued Statements."

(Emphasis supplied) An FES treating Class 9 accidents in accor-dance with then existing Commission policy (i.e. conforming to the proposed Annex to Appendix D to 10 CFR Part 50) has pre-viously been issued covering both TMI-l and TMI-2.

2/ In a second misquotation of the same statement Mr. Sholly l

also omits the word "any" before the words "previously issued Statements".

3/ For the third time Mr. Sholly, at page 6 of his motion,

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has misquoted the Policy Statement by omitting the words "at a licensing stage" after the word " proceeding".

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2. Impact of TMI-2 Cleanup.

Mr. Sholly's motion ignores the fact.that the impact of TMI-2 cleanup activities on TMI-l operation is a mandatory topic for consideration by the Board under the Com-mission's August 9, 1979 Order, that both the Staff and Licensee have presented testimony on the matter, and that the subject is covered in the Staff's SER (Section C4) . The Staff concluded ,

' tilat the TMI-2 decontamination and restoration operations will not affect safe operations at TMI-1. (SER, C4-1 and C4-21 In these circumstances Mr. Sholly's complaint as to the failure i

of the EIA to address the same matter exalts form over substance.

Mr. Sholly seeks by his motion to introduce testimony of his observation during a tour of TMI that the atmosphere above the TMI-1 and TMI-2 fuel pools is not separated, leaving the impression that Mr. Sholly alone had discovered this infor-l mation. In fact, this feature of the TMI fuel handling building and the compensating measures taken by Licensee are described in the Staff's SER. (SER, C4-8)

The SER and the testimony of the Staff and Licensee do not address the particular conjectrral scenario postulated by Mr. Sholly, i.e. that an undefined accident might occur in the operation of the Submerged Demineralizer System located in the TMI-2 fuel pool, that the accident might occur coincident ,

with refueling operations at TMI-1, that the accident could somehow (despite the ventilation arrangements described in the SER) result in the need to evacuate the fuel handling building, and that evacuation might in some unspecified way risk an accident

involving TMI-1 fuel. If Mr. Sholly was seriously concerned about this scenario he could have pursued his concern and ob-tained a response in connection with his Contention 10.

3. Socioeconomic Impacts.

Mr. Sholly introduces his argument on this sub-ject with the following statement:

"Although the Commission, in CLI-80-39, precluded the discussion of such issues within the context of the litigation of issues in the restart proceeding, the Com-mission took no such position on the con-sideration of such issues in environmental impact analyses performed pursuant to NEPA."

Licensee is simply unable to decipher this statement. Mr.

Sholly appears to be saying that although the Commission de-cided in CLI-80-39 that psychozogical distress and related socioeconomic impacts are not to be considered under NEPA in deciding upon the restart of TMI-i, they are nevertheless to be addressed in NEPA impact statements. If so, the illogic of Mr. Sho11y's statement speaks for itself.

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Mr . Sholly next claims to find support for his posi-l tion in the fact that the question of psychological distress has been addressed in the Staff's environmental statement on venting of the TMI-2 containment and in the Staff's Program-matic Environmental Impact Statement or. the cleanup of TMI-2.

He infers from the fact that these documents have been before the Cocnission for review that the Commission intends the Staff to continue to include analyses of psycholgoical stress issues in its NEPA reviews.

The inference is unwarranted. In its decision

e authorizing the venting of TMI-2 containment, the Commission went out of it 4ay to point out that it still had under review in connection with the TMI-1 restart proceeding the cognizability of psychological distress issues and that the psychological distress factor in that case merely reinforced a decision which the Commission was making in the interest of the public health and safety. (Commission Memorand:m and Order dated June 12, 19 80, pp. 9-10 and fn. 9 ) Licensee also submits that no inference can be drawn from the fact that dis-cussions of psychological distress contained in the Draft PEIS (issued prior to the Commission's decision in CLI-80-39) have

{ been carried over to the Final PEIS, particularly where as Mr. Sholly acknowledges the Commission still has the Final PEIS under review.

For the foregoing reasons, Mr. Sholly's motion of April 9, 1981, should be denied.

Respectfully submitted, l

SHAW, PITTMAN, POTTS & TROWBRIDGE l

By 1 4 !91 /

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3[ G[orgeF.Trowbridgd Dated: April 20, 1981 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY J.ND LICENSING BOARD In the Matter of *

)

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 *

) (Restart)

(Three Mile Island Nuclear )

Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Reply to Sholly Motion to Reject the NRC Staff Environmental Impact Appraisal on TMI-l Restart," dated April 20, 1981, were served on those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 20th day of April, 1981.

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• J Y GdrgeF.Trowbridg[

Dated: April 20, 1981

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

)

METROPOLITAN EDISCN COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquim John A. Imvin, Esquin Chairman Assistant Counsel Ae nie Safety and 7A~nning Pennsylvania Public CH14ty e-4==icn Board P.O. Scx 3265 U.S. Nuclear Regulatcry Camissicn W M *hurg, Pennsylvania 17120 Washington, D.C. 20555 Kar.in W. Carter, Esquire Dr. Walter H. Jcrdan Icbert Adler, Esquim Atanic Safety and TAmnaing Assistant At* g General ,

Beard Panel 505 Executive House 881 West Guter Drive P.O. Box 2357 Cak Ridge, Tennessee 37830 Ma M =hurg, Pennsylvania 17120 Dr. Linda W. Little John E. Minnich Arnnic Saf e ty and L4~nning @%, Dauphin c:n:nty scard Boarti Pa .al of 0:2nnissicrers 5000 Semitage Drive Datphin Cbunty Courthouse Raleigh, North c= olina 27612 Fitnt and Marxet Streets N= M =hurg, Pennsylvania 17101 James R. Iburtellotte, Esquire Office of the Executive Imgal Dira Lu. Walter W. Cohen, Esc @

U.S. Nuclear Regulatory r = 4== W. C:msuner A&.ccate Washingtcm, D.C. 20555 Office of Consumer Advocate 1425 Str=+=M Square Docketi:xJ and Service Secticm Hardsburg, Pennsylvania 17127 l

Office of the Secretary U.S. Nuclear Regulaterf &4=sien Washington, D.C. 20555 l

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.!an D. Cunr4Nd==, Esquire Pt2ert Q. Pollard 20 North Second Street 609 Mon +=14=r Street

, arr4 eurg, Pennsylvania 17110 Baltincre, Maryland 21218 Ms. Iouise Bradford , C21auncey Kopford

'DfI ALERP Judith H. Johnsrixi 315 Peffer Street EmrisG-.tal Coalition m Sv-laar Power umvr4 aurg, Pennsylvania 17102 433 orlando Avenue State College, Pennsylvania 16801 Ellyn R. Weiss, Esquire Barnon & Weiss Marvin I. Iawis 1725 Eye Street, N.W., Suite 506 6504 Bradford Terrace

! Washington, D.C. 20006 Ph41

• 1 @4=, Pennsylvania 19149 Steven C. Sliolly Marjorie M. Aamodt thicm of Grv'amed Scientists R. D. 5 3

1725 Eye Street, N.W., Suite 601 (batasville, Pennsylvania 19320 Washington, D.C. 20006

'Dicmas J. Germuse, Esquire Gail Bradford Deputy Atter:ney General ANGiE oivisim of Iaw - Ibcm 316 245 West P!'41=Aal @4= Street 1100 Rayumd Boulevarti York, Permsylvania 17404 Newark, New Jersey 07102 W4114== S. Jordan, III, Esquire

• Haznon & Weiss 1725 Eye Street, N.W., Suite 506 Washingtcn, D.C. 20006 l

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