ML19347E723
| ML19347E723 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/11/1981 |
| From: | Lewis S, Tourtellotte J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19347E724 | List: |
| References | |
| NUDOCS 8105130274 | |
| Download: ML19347E723 (15) | |
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UtilTED STATES OF AMERICA ph
- 4 NUCLEAR REGULATORY COMMISSI0il s.
s BEFORE_THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAf1 EDIS0:4 COMPA14Y, ET AL.
Docket No. 50-289
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(Restart)
(Tnree 1111e Island liuclear Station,
)
Unit 1)
HRC STAFF RESP 0!iSE TO THE COMM0i4 WEALTH OF PENNSYLVAlilA'S RESP 0tiSE TO INTERVEl40R SHOLLY'S MOTION TO RFJECT THE STAFF'S EIA 1.
Introduction On April 22, 1981, the Coanonwealth of Pennsylvania responded to Intervenor Steven C. Sholly's April 9,1981 notion to the Licensing Board to reject the Staff's Environmental Impact Appraisal (EIA), which was issued on 11 arch 27,1981. The Licensing Board invited responses to the Commonwealth's response; such responses were to be filed by nail on or before May 8,1981 or in hand by riay 11, 1981. Tr. 19972-73. Tne Staff's reply to the Connonwealth's response is set forth below.1/
II.
Statement of the Issues Raised by the Conconwealth In its " Response to Intervenor Steven C, Sholiy's Itation to Reject the f4RC Staff Environmental Impact Appraisal on Tlil-1 Restart"
(" Response") the Cornonwealth of Pennsylvania sets forth arguments if The Staff earlier responded to Mr. Sholly's motion.
"!!RC Staff Response to Intervenor Sholly's Motion dated April 9,1980" (April 22,1981).
810513027%
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2-concerning (1) the Licensing Board's jurisdiction over this matter, (2) substantive deficiencies it sees in the EIA, and (3) procedural requireuents associated with the issuance of the EIA.
A.
Jurisdiction The Commonwealth's argument as to jurisdiction relates to two principal natters: (a) that this proceeding is subject to the Coumission's responsibilities under NEPA and that the Board should consider all environmental issues having a reasonable nexus to the TMI-2 accident (Response at 3) and (b) that the Board should exercise jurisdiction over 11 EPA issues for the purpose of developing an administrative record regarding the Staff's recommended negative declaration as to environmental impacts from this action. (Response at 3-5).
B.
Alleged Substantive Deficiencies in the EIA The Connonwealth asserts four areas of substantive deficiency of the EIA:
(1) Tnat the EIA is deficient for failure to address the consequences of Class 9 accidents.
Rather than setting out an argunent in support of this position, the Connonwealth adopts the argunents of Mr.
Sholly. (Response at 9).
(2) Tnat the EIA is deficient for failure to address issues of
" plant separation", which have been raised by the Commonwealth.
Response
at 9-10.
The Connonwealth enunerates (a) the possibility of a fuel drop l'
accident in the Unit 2 fuel handling area which could affect operations l
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- r in the Unit 1 fuel handling area, (b) the projected total radiation dose fron Unit 2 cleanup and Unit I restart, (c) the potential interaction between the low level wastes froa Units 1 and 2 proposed to be stored in the Interin Solid Waste Staging Facility as three aspects of plant separation which should be, but have not been, considered in the EIA.
(3) That the EIA is deficient for failure to consider socioeconoaic impacts that resulted from the Ti41-2 accident and that have a bearing on the proposed TMI-1 restart. The focus of the Coanonwealth is upon nonetary and environmental costs associated with potential evacuations and other protective actions. (Response at 10-11).
(4) Tnat the EIA is deficient for failure to analyze the environmental impacts associated with the construction of the Interin Solid Waste Staging Facility (Response at 11).
C.
Procedural Requirements Associated with the EIA The Conoonwealth asserts that the Staff's EIA is defective because l
I of the Staff's failure to have involved agencies, members of the public, and others in the preparation of the EIA. (Response at 12).
III. Argument A.
Jurisdiction j
For the Connonwealth, the issue is franed by the Board's statement in its March 12,1980 "Memorandun on the Need for Preparing a Final Environmentifi Statement Prior to Restart of TMI-1" that it had strong doubts as to whether the Commission had conferred upon it jurisdiction y
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over NEPA issues associated with this restart proceeding. These doubts were based upon the Board's interpretation of the Commission's August 9, 1979 Order and Notice of Hearing.
CLI-79-8, 10 NRC 141. Since the Conmission had explicitly enumerated those issues which it wished the Licensing Board to consider, the Board considered the omission of any nention of the question of whether an EIS is required in connection with this action to be an indication that the Commission did not intend the Licensing Board to address this question. liemorandua at pages 2-3.
The Staff sees the question of whether NEPA considerations are a part of this proceeding as turning on considerations other than the interpretation of the August 9, 1979 Order.
Rather than focusing on the nature of the jurisdiction conferred by the Commission's Order, we have focused on the type of action involved in this proceeding to determine whether it is a aajor Federal action significantly affecting the human environment" within the meaning of 9102(2)(c) of NEPA.
42 USC 64332(c).
See, e.g., Aberceen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 322-26 (1975); Kleppe v. Sierra Club, 427 U.S. 390, 398-402, 410 n.20 (1976).
The Staff's position is fully set forth in the "Brief of NRC Staff on Psychological Distress Issues" (October 31,1979).
In summary, the Staff's position is that the action involved in this proceeding does not require a NEPA review beyond that perforaed for the licensing of operation of TMI, Unit 1 in that:
1.
This is an enforcement action (i.e., the immediately effective suspension of operation of the facility and the lifting of that suspension).
Under Commission regulations, CEQ regulations, and court
decisions (See, e.g., Gifford-Hill & Company, Inc. v. FTC, 389 F.Supp.
167 (D.D.C.1974), affirmed 523 F.2d 730 (D.C. Cir.1975); Mobil Oil Corporation v. FTC, 562 F.2d 170 (2d Cir.1977)) the connencement of an action of this type is exempt from the requirements of NEPA. The need for administrative discretion, which underlies the exemption for commencement of enforcement actions, applies also at the the remedial stage and NEPA requirenents should not, therefore, be applied to the action of lifting thesuspensionofoperation.U Brief at 14-24.
2.
Allowing the restart of THI-1 would constitute a continuing Federal involvement in an action (the operation of Unit 1) on which a legally sufficient EIS has already been issued.
Brief at 9-14.
Such continuing involvement is not a " major Federal action" absent environnentally significant changes in the activity or discovery of significant new environmental impacts, which night inpose an obligation to impose a new (or, in tnis case, supplemental) EIS.
Brief at 24-29.
3.
No party to this proceeding has argued that environmentally significant changes in the operation of the facility are contemplated or has identifed newly discovery environmental impacts of the type which would require preparation of a supplemental EIS.
Brief at 29-56.
y Connission practice has been not to require an environmental assessment for either the imposition or the lifting of immediately effective suspensions of operation.
For example, no environmental assessments were required with regard to the imposition or lifting of the immediately effective suspensions of operation imposed on the seven other operating B&W plants following the accident at TMI-2.
for example, Duke Power Company (0conee Nuclear Station, Units 1, 2, and 3), Order 44 Fed. Reg. 27776, May 11, 1979 and Hotice of Authorization to Resume Operation, 44 Fed. Reg. 31755, June 1,1979.
The Staff's action of preparation of an EIA was undertaken as an exercise of its discretion (Tr. 373-75) solely for the purpose of confirming the vied that the impacts considered in the existing EIS for the operation of T!!! had not been significantly changed or that significant new environmental impacts remained to be analyzed because of theT!!I-2 accident.E Nevertheless, assuaing arguendo, that the Staff was required to prepare an EIA in this proceeding, it is our position, as outlined below, that the EIA, as supplemented by otiier relevant testinony in the record and the Supplement to the EIA (attached hereto), satisfies the "hard look" standard cited by the Commonwealth, and is therefore legally sufficient. Northern Indiana Public Service Co. (Bailly Nuclear Generating Station), ALAS-303, 2 NRC 858, 876 (1975).
Consideration of such other testimony as it supplenents the EIA is appropriate in determining whether a Federal agency has complied with NEPA.
Id_., 2 NRC 873.
B.
Alleged Substantive Deficiencies Of The EIA With respect to the inclusion of consideration of Class 9 accidents in the EIA, the Comuonwealth simply notes its concurrence with and adoption of the argunents put forward by Mr. Sholly in his notion, to which the Staff has already responded. We took the position in our response to Mr. Sholly that there was no showing of the "similar special y
In view of this limited purpose, the Staff does not intend to officer the EIA as evidence in this proceeding.
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circunstances" required under the Coar.lission's policy statement entitled "fluclear Power Plant Accident Considerations Under the flational Environmental Policy Act of 1979" (45 Fed Reg 40101 (1980)) as a basis for reopening any previous environnental review for consideration of 1
Class 9 accidents. Staff response at 3-7.
In response to the Commonwealth, we adopt the position we took with respect to Mr. Sholly's notion and would also emphasize that the matter of Class 9 accidents was extensively considered in this proceeding pursuant to contentions raised by the parties. See f4RC Staff testimony of Jack Rosenthal and Paul S.
Check Relative to UCS contention 13, following Tr. 11158 (1/28/81) and the cross-exaniantion of that panel, and Licensee's Testimony of Salomon Levy in Response to UCS contention 13 (Alternative Accident sequences / Class 9 accidents) following Tr. 11049 (1/27/81) and the cross-exa:aination thereof.O s noted above, the EIA may be deemed to be A
supplemented by this testinony in the record on Class 9 accidents.
Other portions of the record also provide adequate supplementation of the EIA in two areas of deficiency asserted by the Cor:Taonwealv, with respect to plant separation.
First, although the EIA itself dous not address iapacts on the Unit 1 fuel handling area which it is asserted l
could result frou an accident involving the drop of Unit 2 fuel, the natter of possible impacts on the Unit 1 fuel handling area because of its direct connunication with the Unit 2 fuel handling area has been fully considered pursuant to the Commission's short-term iten 4.
Staff 4]
The Conaonwealth cross-examined extensively the Staff's and Licensee's witnesses on Class 9 accidents. Tr.11066-94 (1/27/81),
11147-52 and 11163-236 (1/28/81). Mr. Sholly was not present for, and therefore did not participate in, this examination.
Exhibit I at pp. C4-2 and C4-8; Licensee's Testimony of Edwin C. Fuhrer and Richard J. McGoey on the Physical Separation of Three Mile Island Units 1 and 2, following Tr. 10020(1/14/81),at43-44. That testimony denonstrates that even if the configuration of the THI-2 core prevents a full analysis of a TMI-2 fuel drop accident, the impacts of such a postulated accident on the public health and safety would be insignificant. Statements made by witnesses for the Staff and Licensee that a precise analysis of the impacts of a postulated fuel drop accident would have to await further information on the Unit 2 core (Tr. 10057-59, 10205 (1/14/81)), which have been relied upon by the Commonwealth as identifying a possible unanalyzed impact, must be read in the context of all of the testimony on this subject. When so read, the record demonstrates adequate consideration of the impacts of such a postulated accident both fron a health and safety and environnental perspective.
With respect to the Connonwealth's assertion that the EIA is deficient for failure to assess the potential impacts of interim storage of low level radioactive waste fron Units 1 and 2 in the same building, the record likewise reflects that this natter has been giv n adequate consideration Tr. 10032-36 (1/14/81). That testimony denonstrates that the storage areas for the Unit I and Unit 2 wastes are separate, although they are under one roof.
Id.
In addition to physical separation, administrative controls will prevent commingling of the wastes. Id.
The last asserted deficiency raised by the Commonwealth under the heading of plant separition, is the failure to have included in the EIA calculated cunulative radiation doses to the public from the restart of Unit 1 and cleanup of Unit 2.
The cumulative doses can be derived by
adding the calculated values in the Final Progrannatic Environnental Inpact Statenent Related to Decontamination and Disposal of Radioactive Wastes Resulting from March 28, 1970 Accident Three Mile Island Nuclear Station, Unit 2, NUREG-0683 ("PEIS") (see particularly Vol.1. Tables 10.6 and 10.7) to the calculated doses reported in the EIA (at 9-10).
Since the PEIS is not, however, in the record of this proceeding, the Staff has included in the Supplement to the EIA a presentation of the cumulative doses fron restart of Unit 1 and decontamination of Unit 2 and an assesnent of their health effects. Based upon that assessment the Staff has concluded that the conbined effects of the decontanination of Unit 2 and the normal operation of Unit I will result in insignificant risk to the public health.
The next asserted substantive deficiency is the failure to have considered in the EIA socioeconomic impacts (other than psychological stress, which is controlled by CLI-80-39). The specific inpacts identified by the Commonwealth are the costs to state and local governments for increased energency preparedness, the environneatal effects of licensee's alert-notification systen, and the potential adverse effects which might result from the need to take evacuation or other protective action maasures (e.g., business dislocation, depreciated property values, loss of pay, decreased tourism, and connunity disruption).
Response at 10. The costs to state and local governments have been adequately assessed on a generic basis in NUREG-0553, "Beyond Defense in Depth:
Cost and Funding of State and Local Government Radiological Energency Response Plans and Preparedness in Support of
Comaercial Nuclear Power Stations" (October 1979) and (140 REG-0685)
"Enviromental Assessment for Effective Changes to 10 CFR Part 50 and Appendix E to 10 CFR Part 50; Emergency Planning Requirements for Nuclear Power Plants". Those impacts need not be further addressed in an EIA for the present action. The environmental impacts of the alert-notification system are addressed in the Supplement to the EI A.
That analysis indicates that the impacts associated with the system and its testing will not be significant. The potential adverse effects identified by the Comonwealth as possibly arising from any evacuation or other protective action which might have to be undertaken need not to be considered in this enforcenent proceeding, which is concerned with establishing whether the immediately-effective suspension of operation should be lifted.
The final substantive deficiency asserted by the Commonwealt:: is the failure to have considered in the EIA the impacts of construction of the Interim Solid Waste Staging Facility, which was discussed on the record.
Licensee's Testinony f Edwin C. Fuhrer and Richard J. McGoey on the Physical Separation of Three 1111e Island Units 1 and 2, following Tr.
10020 (1/14/81) at 20; Tr.10027-10036. The testimony reveals that the purpose of this facility, which is in the final stages of engineering design and is expected to be fully constructed and operational by mid-1981, is to provide interim storage capacity in the event that adequate offsite disposal capacity bec.omes unavilable.
Tr. 10027-28. To clarify the statement on page 4 of the EIA that no further construction will occur relating to Unit
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11 1 restart, we have included in the Supplement to the EIA an assessment of the inpacts of construction of the Interin Solid Waste Staging Facility.
Tnat assessment denonstrates that the inpacts are g minimis.M C.
P_r_oc,edural Requirements Associated With Preparation of An EIA Tne Common.sealtn also asserts that the EIA is deficient on the procedural ground that the Staff did not " involve environmental agencies, applicants, and the public, to the extent practicable", in the preparation of the assessnent. Council on Environnental Quality, ria'.ional Environnental Policy Act, Implementation of Procedural Provisions; Final Regulations, 40 CFR Part 1500, et seg, i 1501.4(b).
The Commission's present regulations implementing NEPA (10 CFR Part
- 51) do not require consultation with other governmental agencies and other entities or persons outside the Comaission during the preparation of an EIA. Although Part 51 has not yet been revised to implement the CEQregulations,b we have looked at the proposed revisions to determine whether they would require involvement o' agencies or persons outside the J
y Tne Connonwelath would have the Staff go further and analyze the adequacy of offsite storage capacity for wastes from Unit 1 operation and Unit 2 cleanup.
Response at 10. The overall availability of adequate offsite storage does not have a
" reasonable nexus" to tM accident at TMI-2. Under the Coanonwealth's own proposed standard, it is not, therefore, a matter which needs to be considered in this EIA.
p The Commission is now in the process of determining the extent and canner in which it will implement the CEQ regulations. A proposed rule was published on !! arch 3, 1980 (45 Fed. Reg. 13739), but has not yet been adopted.
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4.,
Commission in the preparation of an EIA.
Under the proposed revisions to 10 CFR Part 51, an EIA shall include "[a] list of agent.ies and persons consulted, and identification of sources used". Section51.30(a)(2).
If an EIA leads to a finding of "no significant impact" (Sections 51.31 and 51.32), the appropriate flRC Staff director may make a determination to publish a draft finding to that effect.
Section 51.33.
Under Section 51.33(b) the guidelines for making such a determination would be whether l
the proposed action (1) is, or is closely similar to, one which normally requires the preparation of an EIS or (2) is without precedent.
Since the EIA in this action was prepared for the limited purpose of confirming the position already taken by the Staff that no changes were required in the EIS already prepared for operation of TMI-1, the circumstances which might otherwise warrant circulation of an EIA, under either the CEQ regulations or the NRC's proposed changes to 10 C.F.R. Part 51, do not exist here.
IV.
Conclusion The NRC Staff was not required to prepare an EIS or an EIA, additional to the one already prepared for operation of THI-1, in
connection with this restart proceeding.
In any event, however, the EIA which was prepared for the limited purpose of confirming the continued adequacy of the EIS for the operation of THI-1, as supplemented by the record of this proceeding and the Supplement to the EIA which the Staff has prepared, is legally sufficient.
Respectfully submitted, b
m un u-James R. Tourtellotte Assistant Chief Hearing Counsel J
M. w' Stephe H. Lewis Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of Pay,1981
O UNITED STATES OF AMERICA NUCLEAR REGULATORY C011 MISSION BEFORE THE AT0lilC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAit EDISON COMPANY, Docket No. 50-289 ET AL.
(Three flile Island, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESP 0'4SE TO THE COMMONWEALTH OF PENNSYLVANIA'S RESPONSE TO INTERVENOR SHOLLY'S MOTION TO REJECT THE STAFF'S EIA" in the above captioned proceeding have been served on the following:
(1) by deposit in the United States mail, first class, (2) as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or (3) as indicated by double asterisk hand delivered, this 11th day of May,1981:
- Ivan W. Smith, Esq., Administrative lis. Marjorie M. Aamodt Judge R.D. #5 Atomic Safety & Licensing Board Panel Coatesville, PA 19320 U.S. Nuclear Regulatory Cormission 1:ashington, D.C.
20555 Mr. Thomas Gerusky Bureau of Radiation Protection
- Dr. Walter H. Jordan, Admi", irative Dept. of Environmental Resources Judge P.O. Box 2063 881 W. Outer Drive j
Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee
- /C f Mr. liarvin I. Lewis
- Dr. Linda W. Little, Administrative 6504 Bradford Terrace Judge Philadelphia, Pennsylvania 19149 5000 Hermitage Drive Raleigh, North Carolina 27612 Metropolitan Edison Company
/.7TN:
J.G. Herbein, Vice President George F. Trowbridge, Esq.
P.O Box 542 Shaw, Pittman, Potts & Trowbridge Reading, Pennsylvania 19603 1800 M Street, N.W.
!!ashington, D.C.
20000 lis. Jane Lee R.D., 3; Box 3521 Karin W. Carter, Esq.
Etters, Pennsylvania 17319 505 Executive House P. O. Box 2357 Walter W. Cc, hen, Consumer Advocate Harrisburg, Pennsylvania 17120 Department of Justice l
Strat: berry Square,14th Floor l
t Honorable Mark Cohen Harrisburg, Pennsylvania 17127 l
512 D-3 ilain Capital Building l
Harrisburg, Pennsylvania 17120 j
5
i 4
a Thomas J. Germine Deputy Attorney General Division of Law - Room 316 1100 Raymond Boulevard flewark, flew Jersey 07102 Allen R. Carter, Chairman John Levin, Esq.
Joint Legislative Committee on Energy Pennsylvania Public Utilities Comm.
Post Office Box 142 Box 3265 Suite 513 liarrisburg, Pennsylvania 17120 Senate Gressette Building Columbia, South Carolina 29202 Jordan D. Cunningham, Esq.
Fox, Farr and Cunningham Robert Q. Pollard 2320 florth 2nd Street 609 Montpelier Street Harrisburg, Pennsylvania 17110 Baltimore, Maryland 21218 Louise Bradford Chauncey Kepford 1011 Green Street Judith H. Johnsrud
!!arrisburg, Pennsylvania 17102 Environmental Coalition on fluclear Power 433 Orlando Avenue State College, Pennsylvania 16801 lis. Ellyn R. Weiss
!!armon & lleiss lis. Frieda Berryhill, Chairman 1725 I Street,fl.W.
Coalition for fluclear Power Plant Suite 506 Postponement
!!ashington, D.C.
2000G 2610 Grendon Drive Wilmington, Delaware 19808 I4r. Steven C. Sholly Union of Concerned Scientists 1725 I Street, N.W.
Gail P. Bradford Suite 601 A'lGRY Washington, D.C.
20006 245 W. Philadelphia St.
York, Pennsylvania 17401
- Atomic Safety and Licensing Appeal Board U.S. Iluclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety and Licensing Board Panel U.S. fluclear Regulatory Commission dashington, D.C.
20555
- Secretary U.S. fluclear Regulatory Commission ATTil:
Chief, Docketing & Service Br.
3 Uashington, D.C.
20555 NDg.mM,e :::-d w16 h3,'g William S. Jordan, III, Esq.
Dames R. Tourtellotte
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liarmon & lleiss Assistant Chief liearling Counsel 1725 I Street, N.W.
Suite 506 Uashington, D.C.
20006