ML20245D601
| ML20245D601 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/20/1989 |
| From: | Lewis S, Rutberg J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20245D603 | List: |
| References | |
| CON-#289-8793 OL-2, NUDOCS 8906270167 | |
| Download: ML20245D601 (17) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'89 Ju?120 PS :04 BEFORE THE COMMISSION gfj,t.
L uc ,
T In the Matter of PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352-OL-2 -
50-353-OL-2 (Lirnerick Generating Station, l Units 1 and 2) } (Severe Accident Mitigation
) Design Alternatives)
.i RESPONSE OF NRC STAFF TO PECO NOTION FOR CLARIFICATION OF EFFECT OF REMAND ON ISSUANCE OF OPERATING LICENSE FOR UNIT 2 Stephen H. Lewis
, Counsel for NRC Staff l
Joseph Rutberg Deputy Assistant General Counsel June 20, 1989 gg62JDgg{ g?j "
o 750
UNITED-STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352-OL-2'
) 50-353-OL-2 (Limerick Generating Station, Units 1 and 2) (Severe Accident Mitigation DesignAlternatives)
RESPON5E OF NRC STAFF TO PECO MOTION FOR CLARIFICATION OF EFFECT OF REMAND ON ISSUANCE OF OPERATING LICENSE FOR UNIT 2 Stephen H. Lewis Counsel for NRC Staff I
Joseph Rutberg Deputy Assistant General Counsel l
June 20, 1989 l
TABLE OF CONTENTS Page I. INTRODUCTION ......................................... 1 II. BACKGROU!ID ........................................... 2 III. ARGUMENT ............................................. 4 A. Statement of Issue Before the Commission ........ 4 B. Status of Licensing Relative to the Remanded Proceeding ............................. 5 C. Applicable Case Law ............................. 6 D. The Need for an Exemption ....................... 10 IV. CONCLUSION ........................................... 12 l
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1 TABLE OF AUTHOR 1 TIES Page COURT CASES:
Alaska v. Andrus, 580 F.2d 465 (D.C. Cir. 1978); !
vacated, in part on other grounds sub nom.,
Western Oil & Gas Ass'n . v. Alaska, l 439 U.S. 922 (1978) ...................................... 7, 8 Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502 (D.C. Cir. 1974)'.................... 8 l Limerick Ecology Action v. NRC, 869 F.2d 719 (3rd Cir. 1989) .......................................... 2, 6 Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) .......... 9 l National Resources Defense Council v. NRC 547 f.2d 633 (D.C. Cir. 1976); rev'd., sub nom.,
Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S.
519 (1978) ............................................... 8 l Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982) .. 9 Realty Income Trust v. Eckerd, 564 F.2d 447 !
(D.C. Cir. 1977) .................................... .... 7 l ADMINISTRATIVE DECISIONS: ,
Philadelphia Electric Company (Limerick Generating
. Station, Units 1 and 2), CLI-86-5, 23 NRC 125 (1986) ..... 3 Philadelphia Electric Compan
. Station, Units 1 and 2), ALA$y -845,(Limerick Generating 24 NRC 220 (1986 ) .....4 Philadelphia Station, Units 1Electric and 2), Company ALAB-819, (Limerick Generating 22 NRC 681 (1985 ) .....3 Philadelphia Electric Company (Limerick Generating l Station, Units 1 and 2), LBP-85-25, 22 NRC 101 (1985) .... 4 REGULATIONS l
l 10 C.F.R. 6 2.760a ....................................... 5 l
1 10 C.F.R. 6 50.57 ........................................ 1,4,6 10 C.F.R. %$ 51.100-51.106 ............................... 11 10 C.F.R. 6 Sl.104(a)(3) ................................. 5
____.____._._______._____m_____
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TABLE OF AUTHORITIES Page MISCELLANEOUS
" Environmental Effects of the Uranium Fuel Cycle,"
Supplemental General Statement of Policy, 41 Fed. Reg. 49898 (November 11, 1976) ................... 8, 9
" Environmental Effects of the Uranium fuel Cycle,"
General Statement of Policy, 41 Fed. Reg. 34707 (August 16, 1977) ........................................ 8
" Final Environmental Statement Related to Operation of the Limerick Generating Station, Units 1 and 2,"
NUREG-0974, p. 5-126 (1981) ........................,..... 3
" Licensing and Regulatory Policy and Procedures for Environmental Protection; Uranium Fuel Cycle Impacts,"
47 Fed. Reg. 50591 (November 8, 1982) .................... 8 Order (Confirming Rulings and Schedules Made at Special Prehearing Conference on NEPA Severe Accident Contentions)
(unpublished),(April 20, 1984) .......................... 3
" Uranium fuel Cycle Impacts From Spent Fuel Reprocessing and Radioactive Waste Management," 42 Fed. Reg. 13803 (March 14,1977)......................................... 9 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
BEFORE THE COMMISSION In the Matter of )
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352-OL-2
) 50-353-OL-2 (Limerick Generating Station )
Units I and 2) ) (SevereAccidentMitigation
) Design Alternatives)
RESPONSE OF NRC STAFF TO PECO MOTION FOR CLARIFICATION OF EFFECT OF REMAND ON ISSUANCE OF OPERATING LICENSE FOR UNIT 2
- 1. INTRODUCTION On June 5, 1989, Philadelphia Electric Company (PECO), the licensee for Limerick, Unit 1, and holder of the construction permit and applicant for an operating license for Limerick, Unit 2, filed a motion with the Commission seeking: (1) clarification of the Commission's delegation of authority to the Atomic Safety and Licensing Board in connection with the severe accident mitigation design alternative (SAMDA) issuet (2) authorization to the Director of Nuclear Reactor Regulation to issue an operating license for Unit 2 upon making the requisite findings in 10 C.F.R. G 50.57; or (3), in the alternative, an exemption from any procedural requirements to permit a license for Unit 2 to issue prior to resolutionoftheSAMDAissue.1/ Motion at 3-4
-1/ " Applicant's Motion for Clarification of the Commission's Delegation of Authority and for Issuance of an Operating License or, Alternatively, for an Exemption from any Procedural Requirement that a License for Limerick Unit 2 Cannot Issue Until the Contention Remanded by the Third Circuit is Resolved" (Motion).
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II. BACKGROUND This proceeding arises from a decision of the United States Court of Appeals for the Third Circuit issued on February 28, 1989, addressing,-
inter alia, the Commission's NEPA consideration of the operating licenses for the Limerick units. 2/ Among other things, that' decision. remanded the proceeding to the Commission for consideration of certain severe accident mitigation design alternatives that the Court referred to as SAMDAs. 869 F.2d at 741. The Court held that the NRC had violated the National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. 4321, e_t
.seg, by not discussing in the Limerick Final Environmental Statement (FES)'
or permitting litigation of a contention addressing certain SAMDAs. I_d .
at 736-741.
In 1981, while this matter was pending before the Atomic Safety and Licensing Board, Limerick Ecology Action (LEA) had sought to raise severe accident mitigation alternatives by its proposed contention DES-5, which stated:
The environmental risk of accidents during operation of the
. Limerick facility as proposed for licensing is significant, and preventative and/or mitigative alternatives to the design, mode of operation, procedures, and/or number of reactors presently proposed must be considered for purposes of compliance with the National Environmental Policy Act of 1969 and with 10 C.F.R. Sections 51.20(b), 51.21, 51.23(c) and 51.26. None have been considered.
- 2) Limerick Ecology Action v. NRC, 869 F.2d 719 (3rd Cir.1989)
3-This proposed contention was denied by the Atomic Safety and Licensing Board; E that denial was upheld by the Atomic Safety and Licensing Appeal Board in ALAB-819. O In affirming the denial of DES-5, the Appeal Board noted, among other things, that, despite the exclusion of the contention, the Limerick FES included substantial consideration of the risks associated with beyond-design-basis accidents. ALAB-819, 22 NRC at 696-97. The Staff had concluded in the FES that the likelihood of a severe accident at Limerick was ". . . small and comparable to that of other reactors" and that:
(based) on the . . . considerations of environmental impacts of accidents, which have not been found to be significant,-
(it) has concluded that there are no special or unique circumstances about the Limerick site and environs that would warrant consideration of alternatives for Limerick, Units 1 and 2. Accordingly, it remanded the matter to the Commission for further consideration. Id.
" Final Environmental Statement related to operation of the Limerick Generating Station, Units 1 and 2," NUREG-0974, p. 5-126 (1981).
The Third Circuit, however, was not persuaded that this analysis-amounted to a determination that severe accidents at Limerick are remote and speculative and thus a reason for declining to consider SAMDAs for the Limerick plant. 869 F.2d at 741.
-3/ Order (Confirming Rulings and Schedules Made at Special Prehearing ConferenceonNEPASevereAccidentContentions), April 20, 1984, unpublished, at 3; Tr. 8776-78, 9471-75.
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~ Pni1adelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681 at 693-97 (1985). This decision became final agency action by virtue of the Commission's determination not to take review. CLI-86-5, 23 NRC 125 (1986).
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On May 5, 1989, the Commission directed the convening of a Licensing
. Board to conduct such additional proceedings with respect to Contention DES-5 as are necessary to comply with the Court's decision. By notice dated May 9,1989, a Licensing Board was established to preside over such proceeding. Thereafter, PECO filed its motion for clarification with the-Commission. By order dated June 8, 1989, the Commission directed the i
Staff to respond to the motion by June 20, 1989.
III. ARGUMENT A. Statement of Issue Before the Commission The principal question regarding the remand, as raised in the motion, 1
is whether, in the current circumstances of this licensing action, I issuance of an operating license for Limerick, Unit 2 prior to resolution ;
of the SAMDA issue is precluded. El The Staff submits, as more fully set forth below, that neither the Commission's regulations, NEPA nor caselaw I prevents the Commission from authorizing the Director of Nuclear Reactor Regulation, upon making the requisite findings in 10 C.F.R. 5 50.57, from ;
issuing the operating license for Unit 2. 6_/ l At the outset, it should be noted that the representation made in the Affidavit of Corbin A. McNeill, Jr., does not accurately reflect the !
Staff's position in this matter and, we believe, mischaracterizes the i Third l
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5/ Philadelphia Electric Co. (Limerick Generating Station. Units 1 .
and2),LBP-85-25,22NRC101,116(1985), aff'd ALAB-845, j 24 NRC 220 (1986).
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~ In its Order dated June 8, 1989, the Commission advised that the Staff may not authorize any activity beyond "those steps necessary for fuel loading and precriticality testing." Neither LEA nor the Commonwealth in their subsequently filed briefs address this matter.
Circuit's ruling. In the statement filed in support of PECO's motion Mr.
McNeill states:
Despite the Third Circuit's explicit explanation that its decision should not impede the-licensing of Limerick, the NRC Staff nonetheless indicated that it will not issue a license for Unit 2 until completion of the proceeding on the remanded issue.
Affidavit, para. 3. Simply put, the Staff's position is that LEA's contention DES-5 is, by virtue of the Court of Appeals' decision, a metter in controversy. Thus, the Commission (or a Licensing Board) needs to address the question of whether the remand of this contention by the Court of Appeals has the effect of requiring that the issue of SAMDAs be considered and decided by the agency before an operating license for Unit 2 can be issued. See, 10 C.F.R. 6 2.760a; 9 51.104(a)(3).
PECO attaches great importance to the Third Circuit's statement that the petitioners had not asked the Court ". . . to enjoin, set aside, suspend or determine the validity of the grant of an operating license to Limerick Units 1 and 2." Motion at 2. Ilhile the fact that LEA did not ask the court to enjoin the issuance of an operating license for Unit 2 i deserves some weight, the Staff does not agree with PEC0's assertion that the Court stated that "its decision should not impede the licensing of Limerick." Motion at 2. Neither the Third Circuit's decision nor the Commission's May 5th order implementing that decision addresses specifically the question of whether the remand permits or " impedes" the licensing of Unit 2 prior to resolution of the.SAMDA issue.
B. Status of Licensing Relative to the Remanded Proceeding The effect of the remand turns, in large part, on the specific circumstances of this licensing action. In 1985, the Atomic Safety and i
Licensing Board authorized the Director of Nuclear Reactor Regulation to issue full power operating licenses for Limerick Units 1 and 2 upon making the requisite findings in 10 C.F.R. 6 50.57. Pursuant to this authorization, on October 26, 1984 an operating license was issued for Unit 1. However, because Unit 2 had not been completed until recently a license for Unit 2 has not yet been issued.
An extensive record was developed in the proceeding below that included a final Environmental Statement (FES) in which the Staff considered the risks associated with beyond design basis accidents. And in this respect, the Court of Appeals did not find that the matters that were addressed in the FES were not adequately considered, but rather that the Commission failed to address adequately the mitigation of severe accidents. The remand that resulted in this proceeding relates to this narrow, specific issue. Thus, the only deficiency that must be addressed in the proceeding on remand is the failure to consider alternative designs to mitigate the impacts of a severe accidents. See 869 F.2d at 741.
The federal action of licensing Limerick Unit 2 has not yet been completed. LEA and the Commonwealth in their respective responses to the instant motion, take the view that the Court of Appeals' finding of a failure to comply fully with NEPA dictates that an operating license for Unit 2 may not issue until this remanded proceeding is completed. PECO, on the other hand, takes an equally strong view that the court found no impedement to the issuance of the Unit 2 operating license. As discussed below, the Staff believes, that caselaw and Commission precedent would permit the NRC to authorize operation of Limerick Unit 2 while the agency brings itself into compliance.
7 C. Applicable Caselaw
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Precedent suggests that a test for determining whether to allow 6 project to continue notwithstanding a judicial finding of noncompliance with NEPA, is whether the reasonably forseeable adverse environmental impacts of the action are sufficiently known so as to avoid any l
unrecognized irreversible effects on the environment, and whether permitting the action to proceed will preserve for the decision maker the widest freedom of choice when he reconsiders his action after coming into compliance with NEPA. Realty income Trust v. Eckerd, 564 F.2d 447 at 456 (D.C. Cir.1977). See also, Alaska v. Andrus, 580 F.2d 465 at 485-87 (D.C. Cir.), vacated in part on other grounds sub nom. Western Oil &
Ms Ass'n. v. Alaska, 439 U.S. 922 (1978). Alaska v. Andrus presented a situation a similar to that presented here, namely that the Secretary _of the Interior hen failed to consider in the sale of offshore oil leases, the inclusion of termination clauses in the leases and the possible conduct of the sale pursuant to different operating orders. While the Supreme Court found that this was a violation of NEPA, it declined to set the lease sale aside. The Court in Andrus was influenced by two factors:
first, that the orders establishing certain conditions in the leases, including the addition of termination clauses, could be changed following the Secretary's reconsideration pursuant to the Court's remand; and, second, that any environmental harm that might occur during the period of the further agency evaluation and decision whether to change the orders was ". . . simply too small and too speculative to justify the imposition of an injunction . . . ." Andrus, at 486.
While it may be reasonable, in some situation, to enjoin agency action pending completion of the NEPA process, Court's have balanced l
public interest in determing whether injunctive relief is appropriate.
Jones v. District of Columbia Redevelopment Land Agency 499 F.2d 502 at I 1
513 (D.C. Cir.1974); Realty Income Trust v. Eckerd, supra, 564 F.2d at l 456. The cases discussed above set forth standards for determining when an injunction against further agency action to satify NEPA's procedural l requirements is not required. While the foregoing cases arose in the context of requesting injunctions of already approved agency action in the face of failures to comply fully with NEPA, the rationale which supports allowing a major federal action to proceed before achieving full compliance with NEPA appears to be equally applicable to this remanded i proceeding. 1 1
The Commission has itself addressed the question of whether the lack of full compliance with NEPA should preclude issuance of operating licenses. The Commission addressed this issue, for example, on several occasions in the context of development of Table S-3 in 10 C.F.R. Part 51.
5_ee, " Licensing and Regulatory Policy and Procedures for Environmental Protection; Uranium fuel Cycle Impacts," 47 Fed. Rea. 50591 (November 8, 1982); 41 " Environmental Effects of the Uranium Fuel Cycle," Supplemental General Statement of Policy, Fed. Reg. 49898 (November 11,1976);
" Environmental Effects of the Uranium Fuel Cycle " General Statement of Policy, 41 Fed. Reg. 34707 (August 16,1976). In response to National Resources Defense Council v. NRC, 547 F.2d 633 (D.C. Cir. 1976),
rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S. 519 (1978), the Commission initially suspended the issuance of any new full power sperating license, construction permit or limited work authorization pending the issuance of an interim rule which would be an adequate substitute for Table S-3. 41 Fed. Reg. at 34708. In the 1982 action,
notwithstanding that the NEPA process associated with Table S-3 (on consideration of Environmental Impacts of the Uranium Fuel Cycle) had not yet been completed, the Commission concluded that issuance of operating licenses should continue using the existing Table, with the licenses conditioned on the outcome of the Commission's rulemaking proceedings.
47 Fed. Reg. at 50592-93. The Commission took note 'of the fact that the D.C. Circuit had declined to vacate or stay amendments authorizing expantlons of spent fuel pools, pending the completion of the Commission's rulemaking to reassess whether there was reasonable assurance that safe waste disposal would be available when needed. See Potomac Alliance
- v. NRC, 682 F.2d 1030, 1031 (D.C. Cir. 1982), following Minnesota v. NRC, 602 F.2d A12 (D.C. Cir. 1979). In earlier actions concluding that licensing could proceed despite the continuation of rulemaking activities i
regarding the uranium fule cycle, the Commission weighed the impacts of a l
halt in reactor licensing against the environmental impacts that might be associated with continuation of licensing. 41 Fed. R_eg.
e 49898 ;
(November 11,1976); see, also, " Uranium Fuel Cycle Impacts From Spent Fuel Reprocessing and Radioactive Waste Management," 42 Fed. Reg. 13803, 13805(March 14,1977). j In connectioc with Limerick Unit 2, an FES has been completed which 1
satisfactorily addresses all environmental issues associated with the ,
l issuance of the Limerick operating licenses including the risks of severe accidents; the sole exception is the fa; lure to consider mitigation alternatives whose benefit, if any, would be to reduce those severe accident risks still further. In addition, the issuance of an operating license authorizing (low or) full power to PECO would not preclude implementation of any feasible severe accident mitigation design '
l alternatives now under consideration. See, attached Joint Affidavit of Gene Y. Suh and Charles S. Hinson at 5. U here T are substantial-costs to the delay of this completed facility. See, Affidavit of Corbin A.
McNeill, Jr. These factors weigh heavily in favor of permitting this completed facility to operate pending. resolution of LEA's proposed mitigation contention.
In short, while the Court of Appeals did not expressly intend to impede issuance of the license for Unit 2, it'is equally clear that the court left to the determination of the Commission when and if an operating
. license should be issued for Unit 2. Caselaw and Commission precedent would permit issuance of an operating license pending completion of the NEPA assessment in a case such as this, where only the single narrow issue of mitigation alternative remain and operation in the interim would not foreclose any reasonable alternative.
D. The Need for an Exemption There remains a procedural question concerning whether the mechanism for authorizing operation of Limerick Unit 2 prior to completion of the
, pending hearing requires an exemption. In its Motion, PECO seeks, in the alternative, an exemption from any procedural requirements to permit the l
1 issuance of a license for Limerick Unit 2 pending resolution of the J contention remanded by the Court of Appeals. Motion at 14-26. While !
relying upon 10 C.F.R. 6 50.12 and 10 C.F.R. 51.6 to establish the 'i criteria for considering an exemption request, PECO fails to identify the specific provisions of Parts 50 or 51 from which exemptions are requested.
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A similar assertion is made by Mr. McNeill in his Affidavit at p. 3. :
Neither LEA nor the Commonwealth challenge this statement. !
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Both LEA and the Commonwealth in their replies to the Motion oppose PECO's request for an exemption. LEA asserts that the Commission cannot, under the guise of an " exemption" or any other device issue an operating license for Unit 2, "in the face of a dispositive judicial' determination that a controlling statute -- NEPA -- has been violated." LEA Response at )
18-19. The Commonwealth argues that any action on the operating license for Unit 2 must await completion of the remanded proceeding, Commonwealth Response at 17, and thus, the Commission cannot issue the requested exemption since it is not authorized by law. M.
As noted above, the Staff does not believe that the Commission is precluded from issuing an operating license for Unit 2, provided the operation of the facility does not foreclose compliance with any order i directing that a mitigation design alternative being considered should be implemented. At the same time, it is not suggested that either NEPA or the Court of Appeals' decision need not be fully complied with in connection with the licensing of Unit 2.
However, there are several regulations that address the timing of the federal action which, if applicable to this remanded proceeding, arguably would delay issuance of the Unit 2 operating license until the completion )
l of the pending proceeding. 10 C.F.R. 6 51.100 through 51.106. Central to these regulations, as to NEPA, is the principle that an action should not first be taken if it would result in irreversible environmental impacts or, if by taking the action, consideration of reasonable alternatives would be precluded. As discussed above, neither of these circumstances exist with respect to this proceeding: the environmental impacts including the risks associated with severe accidents have been fully
disclosed in the FES (and were litigated), and if warranted, mitigation alternatives can be implemented.
Accordingly, the Staff does not object to an exemption from these requirements. The Staff believes that an exemption is authorized by law and that issuance of the license, when otherwise ready, would be in the public interest.
IV. CONCLUSION For the reason stated above the Commission should authorize the Director of Nuclear Reactor Regulation to take such further licensing action with respect to Limerick Unit 2 as may be justified by the readiness of the facility. OI Respectfully submitted,
% '(
I en 1. Lewis un 1 fo RC Staff J ? Rut e
. Assist nt General '
Counsel-t Dated at Rockville, Maryland this 20th day of June, 1989.
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-8/ The NRC Staff in accordance with the usual practice, will report to the Commission the Staff's overall finding with respect to operation at full power prior to the issuance of a license for such operation.
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