ML20091E550
| ML20091E550 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 04/25/1984 |
| From: | Edelman M CLEVELAND ELECTRIC ILLUMINATING CO. |
| To: | Warnick R NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| References | |
| NUDOCS 8406010291 | |
| Download: ML20091E550 (6) | |
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P.o. box $000 - CLEvtLAND, OHlo 44101 - TELEPHONE (216) 622-9800 - ILLUMIN ATING BLDG-
- 55 PUBLICSQUARE Serv ng The Best Location in the Nation MURRAY R. EDELMAN VICE PRE 51 DENT April 25, 1984 Mr. R. F. Warnick, Chief Projects Branch 1 Division of Project and Resident Programs U. S. Nuclear Regulatory Commission, Region III 799 Roosevelt Road Glen Ellyn, IL 60137 Perry Nuclear Power Plant Docket Nos. 50-440; 50-441 Response to Notice of Violation
Dear Mr. Warnick:
This letter is to acknowledge receipt of your letter dated March 28, 1984, transmitting the Notice of Violation, which resulted from the motion, dated April 28, 1983, filed before the Atomic Safety and Licensing Board by Ms. Susan L. Hiatt on behalf of the Ohio Citizens for Responsible Energy.
Attached to this letter is our response to the Severity Level IV Violation described in the Notice of Violation dated March 28, 1984. This response is in accordance with the provisions of Section 2.201 of the NRC's " Rules of Practice," Part 2, Title 10, Code of Federal Regulations.
Our response has been submitted to you within the required thirty days of the date of the Notice of Violation.
If there are additional questions, please call.
Sincerely, Murray R. Edelman Vice President Nuclear Group MRErdgt Attachment cc: J. Stefano Max Gildner J. E. Silberg, Esq.
U. S. Nuclear Regulatory Commission c/o Document Management Branch Washington, DC 20555
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8406010291 40425 PDR ADOCK 0 000440 0
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RESPONSE TO ENFORCEMENT ITEM 7
-Below'is our* response to the Notice'of Violation appended to United States
- Nuclear Regulatory Commission, Region III letter dated March 28, 1984.
/I Noncompliance Dock t Numbers 50-440/40-441 e
A.
. Severity Level IV Violation As a results of-the applicant's November 20, 1981, response to NRC and in accordance with the NRC Enforcement Policy, 47 FR 9987 (March 9, 1982), the following violation was identified:
On July 31, 1981, as part of it environmental analysis for the cperating license review, the NRC staff asked the applicant to provide an assessment of the effects of transmission line main-tenance procedures on the spotted turtle (Clemmys auttata) and to indicate whether herbicides will be used along any portions of the Perry transmission lines.
On November 20,'1981, ~the applicant responded, "It is not the policy-of CEI to use herbicides for vegetation control along the Perry transmission lines."
In the Final Environmental Statement, NUREG-0884, issued in August'1982, the staff stated, "The applicant indicates that it is not his policy to use herbicides for vegetation control along the-PNPP transmission lines. Thus, it is the staff's evaluation that adverse impacts from the from the maintenance = activities will be minimal." (NUREG-0884, p. 5-8)
In October 1982, CEI and Ohio Edison' filed an amended application before the Ohio Power Siting Board for the Perry-Hanna transmission line.
In the amended application, thefapplicant stated they would use a number of herbicides and described the methods of application and chemical components of.those to be used. The licensee did not change-the information previously provi?sd to the NRC.
Section 186 of the Atomic Energy Act of 1954, as amended, states 'in part, that any license may be revoked for,any material false state-ment in the application or any statement of fact required under.
Section 182, or because of-conditions revealed:by:such application or statement of fact or any report,' record, or inspection or other means which would warrant the Commission to refuse to grant a license on an original applic,ation.
Contrary to Section 186 of the Atomic Energy-Act of: 1954, as amended, and under criteria established by!the Commission, both the-applicant's November 20, 1981, incomplete-response to the staff's question and the, failure to correct the staff's.use of the statement.
-in the Final Environmental Statement are false statements. They are material in that, had. accurate information been provided, the NRC reviewer would have tried to determine whether the use'of specific '
herbicides to be applied would be detrimental.to the spotted turtle;
'or'its habitat.
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-Response
- 1. JAdmission or Denial of~ Alleged Violation The Cleveland Electric Illuminating Company (CEI) respectfully submits that no material false statement was made. CEI-sub-
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-scribes to the. views of Commissioner Bernthal on urging'that i
L Director's: Decision DD-83-17-be reviewed. Although'the entire matter mightisimply be accepted as a case of miscommunication, the. tact that-CEI.has been cited for a material false statement
- compels us:to set forth our analysis of the facts in order to j
. clarify the situation.
2.
Reason l
CEI has reviewed the written documentation involved and found that the factual-information communicated to the NRC staff by CEI does'not support the conclusions reached in the Director's i
decision.
In its Environmental Report - Construction Permit Stage, CEI described the planned transmission facilities for the Perry Nuclear Power Plant (PNPP). The Environmental _ Report described i
the techniques to be used for clearing and maintaining the j
transmission line right-of-ways, separately describing the CEI l
and Ohio Edison maintenance procedures along with the planned i
use of herbicides (ER-CP Section 4.2.3.4). -At that< time,-the 1
staff did not find ~any significant. environmental impacts associated with the proposed herbicide use (Final Environmental Statement - Construction Permit Stage, Sections 3.8 and
-5.5.1.2).
The staff was fully aware of a' difference in the practices-of the two utilities'and'of Ohio Edison's intent to 1'
use herbicides cui their-portions of.the transmission lines.
In the Environmental Report.- Operating License Stage (ER-OL) the applicant indicated that the maintenance methods.for the transmission system were' unchanged from those described in the
~ER-CP.
The NRC staff was on' site on June 23 and 24,-1981 for
-an environmental review meeting and tour. The purpose of the-meeting was to' discuss and clarify the NRC's requests-for i
. acceptance-review information. At this' review meeting, site specific. terrestrial and aquatic' ecology.was discussed, which
-included the' spotted turtle. Transmission lines were also discussed.-- Based on those discussions, the' staff revised its original-request for information and asked additional
. questions,' including Question 290.08.-
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4 (Q290.08):
1 Provide an assessment of the~ effects of transmission line maintenance procedures on the spotted turtle (Clemmys guttata).. Indicate whether herbicides will be used along any portions of the Perry transmission-lines.
- Questibn 290.08 referred to the use of herbicides on any portions of the transmission lines; -It was-logical to assume
-that the NRC' inquiry-was referring to onl site practices, since
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the only. transmission _ corridor on which the spotted turtle had been-located was under CEI's responsibility and the question followed the on site NRC meeting.
CEI responded with the following statement:
It is not the policy of CEI to use herbicides for vegetation control ~along the Perry transmission lines. CEI cuts vegetation periodically with a brush-hog. To date, there have not been apparent effects on the spotted turtle.
The statement was then true and correct.
It is still true and correct and thus'there is no false-statement. The response addressed the use of herbicides on any portion of the trans -
mission lines on the Perry site.where the spotted turtle-habitat was identified. :The response to Question 290.08 was approp'riately written in terms of CEI's practices not Ohio
' Edison's maintenance practices, because the-portion of the transmission corridor where the spotted' turtles have'been identified is solely under CEI's control. 'The answer.was clear, straight' forward, and thus there was no omission of pertinent information.
Based on our response to Question 290.08, the NRC staff stated-inL the Final Environmental Statement (FES) for-the' operating license stage (NUREG-0884s Section 5.5.1'.4,'p. 5-8):
Maintenance procedures for vegetative control along the PNPP transmission lines will consist'of periodi-cal mechanical cutting employing a brush hog. The applicant indicates that it is'not'_his policy to.use
' herbicides for' vegetation control along the PNPP transmission lines.
The reference to "the applicant" having a' policy of not using herbicides, correctly refers only to CEI. As defined;in.the'
-FES-OL Section'1.1, ["The. proposed' action is the issuance of' operating licenses to The Cleveland Electric Illuminatina Company (the applicant) acting also as agent for the other
~co-owners... " emphasis added.] Further..the staff's: con-clusions in the FES'are correct as the applicant's, "Mainte-nance procedures for vegetative control along the,PNPP u
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3 transmission-lines will consist of periodical mechanical cutting employing a brush hog."
The NRC reviewer interpreted CEI's response correctly, since he references Question 290.08 as one of the sources for the statement and conclusions, "The spotted turtle has been observed on site (ER-OL Section 2.2.3 and Q 290.08)...To date, spotted turtle habitat has not been affected by activities at PNPP."
(FES Section 4.3.7.2,
- p. 4-25)
Our response, "It is not the policy of CEI to use herbicides for vegetation control along the Perry transmission lines," and the NRC's FES conclusions are, in context, true and complete statements. For reasons explained previously, it is, there-fore, the position of CEI that no material false statement was made. CEI agrees ~with Commissioner Bernthal in that the Direc-tor's characterization of this miscommunication is inappro-priate with the facts of this case.
For all these reasons, CEI believes that the Notice of Viola-tion was not justified.
CEI takes great care that every statement made to NRC is both true and complete. CEI also undertakes to thoroughly review all NRC documents relating to PNPP to make sure tha,t they accurately reflect that information provided by CEI.
3.
Corrective Action Taken and Results Achieved l
CEI has evaluated the following and concluded that our response was appropriate.
The documents reviewed included the Draft and Final Environmental Statements at both the CP and OL stages, the ER-CP and ER-OL, and various correspondence between CEI ar.d the NRC.
This evaluation and our position discussed in this response should form the basis for closure of this matter.
l 4.
Corrective Steps Taken to Avoid Future Noncompliance f
CEI is committed to ensure that the spotted turtle is not affected by the construction occurring at the Perry Nuclear Power Ilant. The spotted turtle is a state of Ohio endanger..d species and is under the' control of the Ohio Department of Natural Resources. CEI will continue on site monitoring of the spotted turtle as part of the Terrestrial Ecological Monitoring Program, and will notify the NRC in accordance with License Condition 6a of the FES-OL, should-PNPP perform additional l
construction or operational. activities that may_ result in a significant advorse environmental impact which were not i
evaluated or which are significantly greater than those evaluated in the OL-DES. Y e
c 5.
Date When Full Compliance Will Be Achieved Full compliance has already been achieved.
DW94/G/5/es