ML20083M286

Response Opposing W Eddleman 840323 Motion to File Response to Summary Disposition on Contentions 83/84B & Motion for License Conditions.Motions Unnecessary & Contrary to Law. W/Certificate of Svc.Related Correspondence

ML20083M286
Person / Time
Site:	Harris
Issue date:	04/13/1984
From:	Carrow H CAROLINA POWER & LIGHT CO.
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8404170549
Download: ML20083M286 (7)

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DOCMETFApril 13,1984 i UMC i

UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMIS81014 H 17 #0:53 l HEFORE THE ATOMIC SAFETY AND LICENSING BOARDWT4M

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BRANCH .

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in the Matter of )

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N CAROLINA POWER & LIOHT COMPANY ) t W

AND NORTH CAROLINA EASTERN ) Docket Nos. 50-400 OL l MUNICIPAL POWER AGENCY ) 50-401 OL

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APPLICANTS RESPONSE TO WELLS EDDLEMAN'S ,

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. . MOTION FOR LICENSE CONDITIONS  ;

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..- On March 23, IE64, Waus Eddleman filed his Response to Summary Disposition on i

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e3/(40 and Motion for Lleense Conditions. In that document, Mr. Eddleman stated that  !

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he would have no objection to withdrawing Contentions 83/848 "(gliven that no Cape e . , ,. ,

' ^ Fear River wand wc,uld be used in cooling Harris I, and given that the levels of i i onreinogenic chemlonia Irom Harris I oooling were held to the levels speelfled in g

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motion *j for humrnary dispoeltion . . . ." I

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/. p,, :Jn. g conjunction w)th withdrawing Contention 83/848 Mr. Eddleman seeks to ha .

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conditions imposed on Applicants' operating lleense as fouows:  ;

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1. Tnnt no water from the Cape Fear River be used in cooling

• , ,r..' , . Harris I;,nef.vetor withdrawn from the Cape Fear shan be added I

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• to the liarris ouolinr lakes at any time.

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2. 'That,the levels of oereinogente chemloans resulting from

" f' Harris I operstica be held to the levels speelflod in A;ylleants'

/. afildsvit and motion re summary disposition on Eddleman

. 83/848, such levelt to be verified periodiosuy (quarterly, e.g.) by '

b,/ . < both physioal testing and biologioni monitoring.

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'< , . Appilaants oppose bott) of these proposed lloonse conditions as either unnessary or 4, #'. ( .

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Proposed Condition 1

. In the Affidavit of William T. Hogarth in Support of Summary Disposition of Eddleman' Contention 83/84B (Hogarth Affidavit), Dr. Hogarth states that Unit 2 of the Shearon Harris Nuclear Power Plant has been cancelled. This means that "the Cape Fear make-up structure also will not be completed since Cape Fear River water is not needed as make-up for one-unit operation of the Shearon Harris Plant." Hogarth Affidavit at 2. ,

Since the Cape Fear make-up structure will not be constructed, it will not be possible for

water from the Cape Fear River to enter the Harris reservoir. Accordingly, it is not possible for Cape Fear water to be used in cooling Harris I nor will Cape Fear water be added to the Harris cooling lake.

Thus, Mr. Eddleman's first proposed condition has already been met. The lack of physical structures, or plan to construct such, to accomplish what Mr. Eddleman's seeks 4

to guard against (i.e. introduction of Cape Fear water into the reservoir) means that ,

Mr. Eddleman's condition would impose a limitation which could not be violated in any event. Regardless, before an intake structure could be built, necessary regulatory approvals and permits would be required, which would provide adequate opportunity for public input at the time any actual proposal to introduce Cape Fear water were made. ,

Proposed Condition 2 '

In his second proposed condition, Mr. Eddleman seeks to restrict " carcinogens" resulting- from SHNPP to levels specified in the Applicants' Motion for Summary Disposition of Contention 83/848 and accompanying affidavits, and to verify by periodic physical testing and biological monitoring. . It is important here to note that the carcinogens to which Mr. Eddleman-is referring will possibly be formed,' bui only as a result of the chlorination of SHNPP cooling water. Affidavit of James A. Fava and Hans Plugge~ in : Support of Summary Disposition .of Eddleman Contention 83/84B (Fava

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Affidavit) at 6. Those substances which may be formed will be drastically below 4

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s Environmental Protection Agency water quality criteria, and will present no human health risk. ' Fava Affidavit. In addition, concentrations of haloforms or halogenated phenols at the edge of the NPDES 200-acre mixing zone are predicted to be so minute, Fava Affidvit at 8, that they could not be reliably measured.

The Hogarth Affidavit indicates the very low levels of chlorine predicted in the SIINPP discharges. Discharge limits (which Applicants are well within) are placed on .

. both thee available chlorine and total residual chlorine which, in keeping with the purposes of the NPDES permitting process, are set at IcVels to maintain water quality standards and to protect the public health and welfare. Free available chlorine, the form s of chlorine most likely to react with chemical constituents in a water body, is not expected to be discharged at all and concentrations of total residual chlorine will be very

,' , sm'all (1.0 ppb in the NPDES 200-acre mixing zone). Hogarth' Affidavit at 3. Both free available chlorine and total res! dual chlorine are also subject to weekly monitoring by the

' NPDES Permit for the Harris Plant. FinalEnvironmentalStatement (FES) at G-4. Thus, mdnitoring of the; substances necessary for formation of the chemicals which Mr.

' - Eddleman is concerned about is already required.- To place a further limiting condition 4

s on the Harris operating license as Mr. Eddleman proposes would be unnecessary, s

It is also doubtful whether as.a matter of law such a condition could actually be

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Js imposed by the Licensing Board.- The' Clean Water Act (33 U.S.C S 1251, .et seq.)

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, s specifically provules at Section 511(cX2) that ,

(2) Nothing'in the National Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed to (A) Authorize any Federal agency authorized to license or

. permit the conduct of any activity which may result in the

~ discharge of a pollutant- into the navigable waters to 5" ,7 review any effluent limitation or other requirement

& established pursuant to this 'Act or the adequacy of:any 9, b 3a certification under section 401 of this Act; 2 - , .,

< .'(B)' authorize any such agency to impose, as a condition

.preced en . o the issuance of any license or permit any t't

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effluent limitation other than any such limitation

- established pursuant to this Act.

33 USC 1371(eX2).

The Licensing Board cites this very language in its Memorandum and Order (Ruling on Wells Eddleman's Contentions on the Staff Draft Environmental Statement), dated August 18,1983 (" August 18 Order") at pages 11-12, and concludes in its Memorandum and Order (Ruling on Motions for Summary Disposition of Eddleman Contentions 29/30, 64(f), 75, 80, and 83/84), dated November 30, 1983 that "the Federal Water Pollution Control Act (FWPCA) [i.e. the Clean Water Act), which governs the issuance of NPDES permits, mandates that no agency may impose any other effluent limitation as a ,

condition precedent to a license,33 U.S.C. S 1371(cX2), and that the NRC provided in a policy statement at 40 Fed. Reg. 60120 how this law is to be applied in nuclear power plant . licensing proceedings."1 Id. at 22. To grant Mr. Eddleman's motion to restrict the chemicals potentially resulting from Harris I operation to certain levels would constitute a further effluent limitation on the Plant. Applicants therefore ::ontend that Mr.

Eddleman's second proposed license condition is both contrcy to NRC policy and to federal law.

In conclusion, Applicants oppose the imposition of the- two license conditions proposed by Mr. Eddleman in his Motion. The first condition would place a limitation on an 'act which is not physically capable of accomplishment without major construction.

That construction has already been cancelled. Such a condition is unnecessary, would IThis is sJ forth in the August 18 Order.at 12 and provides in pertinent part that the "NRC will not req'uire adoption of an alternative pursuant to NEPA in order to minimize impacts on water quality and biota that are subject to limitations or other requirements promulgated or imposed pursuant to the FWPCA." In this regard, it should also be noted that intake structures are also subject to EPA and State jurisdiction under S 316(b) of the.

Clean Water Act and any proposal to take water from the Cape Fear would require an amendment to the NPDES permit in addition to U.S. Corps of Engineers review.

serve no useful purpose, and has no justification. The second condition seeks to require restrictions and monitoring where restrictions on discharges and monitoring of those discharges already exist. As such, it is also unnecessary. This condition would further constitute an additional effluent limitation which the NRC is barred by law and by its own policy from imposing.

Therefore, Applicants renew their Motion for Summary Disposition of Eddleman ,

Contention 83/84B without license conditions.

Hill Carrow Attorney Carolina Power & Light Company Post Office Box 1551 Raleigh, North Carolina 27602 (919) 836-6839 Attorneys for Applicants:

Thomas A. Baxter John II. O'Neill, Jr.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000

. Richard E. Jones Samantha Francis Flynn Carolina Power & Light Company Post Office Box 1551 t

Raleigh, North Carolina 27602

(919) 836-6517 s._

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

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CAROLINA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket Nos. 50-400 OL MUNICIPAL POWER AGENCY ) 50-401 OL

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(Shearon Harris Nuclear Power Plant, )

Units 1 & 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to Wells Eddleman's Motion for License Conditions" were served this 13th day of April,1984 by deposit in the United States mail, first class, postage prepaid, to the parties on the attached Service List.

This the )?by of April,1984.

Aunas.J Hill Carrow Attorney Carolina Power & Light Company ~

Post Office Box 1551 Raleigh, North Carolina 27602 (919) 836-6839 .

Attorneys for Applicants:

Thomas A. Baxter John H. O'Neill, Jr.

Shaw, Pittman, Potts & Trowbridge :

1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Richard E. Jones Samantha Francis Flynn .

Carolina Power & Light Company Post Office Box 1551 Raleigh, North Carolina 27602 (919) 836-6517

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E SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of North Carolina U.S. Nuclear Regulatory Commission 307 Granville Road Washington, D. C. 20555 Chapel Hill, North Carolina 27~514 Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U. S. Nuclear Regulatory Commission Post Office Box 12643 Washington, D. C. 20555 Raleigh, North Carolina 27605 -

Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U. S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D. C. 20555 Mr. Wells Eddleman Charles A. Barth, Esquire 718-A Iredell Street Myron Karman, Esquire Durham, North Carolina 27705 Office of Executive Legal Director U. S. Nuclear Regulatory Commission Thomas A. Baxter, Esquire Washington, D. C. 20555 John H. O'Neill, Jr., Esquire Shaw, Pittman, Potts & Trowbridge Docketing and Service Section 1800 M Street, N.W.

Office of the Secretary Washington, D. C. 20036 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Phyllis Lotchin 108 Bridle Run Mr. Daniel F. Read, President Chapel Hill, North Carolina 27514

. Chapel Hill Anti-Nuclear Group Effort Bradley W. Jones, Esquire 5707 Waycross Street U. S. Nuclear Regulatory Commission

, Raleigh, North Carolina 27606 Region II

'. 101 Marietta Street Dr. Linda Little Atlanta, Georgia 30303 Governor's Waste Management Board 513 Albemarle Building Robert P. Gruber 325 Salisbury Street Executive Director Rcleigh, North Carolina 27611 Public Staff North Carolina Utilities Commission Ruthanne G. Miller, Esquire Post Office Box 991 Atomic Safety and Licensing Raleigh, North Carolina 27602 Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 i