ML20062M394
| ML20062M394 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/07/1981 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20062M403 | List: |
| References | |
| RTR-NUREG-0737, RTR-NUREG-737 NUDOCS 8112170205 | |
| Download: ML20062M394 (118) | |
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,* g p 2 p UNITED STATES OF Af1ER 0 /
NUCLEAR REGULATORY COMMIS.a '
to
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Before the Atomic Safety and Licensing Board [RW In the Matter of. )
)
Philadelphia Electric Company ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
APPLICANT'S ANSWER TO SUPPLEMENTAL PETITION OF COORDINATED INTERVENORS Procedural Background By Memorandum and Order dated October 14, 1981, the Atomic Safety and Licensing Board (" Licensing Board" or
" Board") established a schedule for the submission of contentions to be filed by petitioners in the instant proceeding. Petitioners were directed to confer with each other and use their best eff>rts to coordinate the filing of contentions, including, to the fullest extent possible, the filing of a joint statement of contentions.1! Petitioners were also directed to set forth with reasonable specificit3 the basis for each contention, pleaded, to give specific references to the~
portions of any technical documents relied upon, and to attach pertinent excerpts from any references.
A l J/ Memorandum and Order Setting Schedule for Submission of Contentions and Other Preliminary Information (October 14, 1981) (slip op. at 3) .
8112170205 8112'O'7 di PDR ADOCK 05000352 g,f G PDR-l
deadline of November 17, 1981 for submission of contentions was set.
Subsequently, the Board extended the deadline for the submission of contentions for those petitioners who elected to join in the coordinated joint statement of contentions, but not for petitioners choosing to file individually. The new deadline for the joint statement of contentions was November 24, 1981 receipt by the Board, the Staff, and Washington, D.C. counsel for Applicant. Answers to all contentions were due on December 7, 1981, and responses were to be served by December 21, 1981. 2_/
In response to the October 14th Memorandum and Order, individual contentions were served by Environmental Coalition on Nuclear Power ("ECNP") on November 22, 1981, and received by counsel for Applicant on November 24, 1981. No reason or iustification was given for the failure to comply with the Board's deadline of Novenber 17, 1981 for petitioners filing individually.
Further, contrary to the Board's instructions and NRC practice, ECNP purported to adopt the joint statement of contenticns filed by other petitioners.
On November 24, 1981, Limerick Ecology Action
(" LEA") served and counsel for Applicant received the
--2/ Memorandum and Order Adjust'ing Schedule and Clarifying Status of Limited Appearors (November 9, 1981) (slip op. at 2) .
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joint _ statement.of contentions of the coordinating inrervenors. 1 Applicant hereby responds to each'of the proposed contentions, as' discussed.more. fully below. .For the convenience of the-Board and parties, the format utilized ~
in the~ joint statement of contentions will be followed here. Preceding discussion of Contentions V-11 to V-21 relating to the supply of supplemental cooling water from
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the Point-Pleasant diversion, Applicant will analyze the legal questions posed by the Board A! an'd addressed by Del-AWARE in its legal. memorandum. Following the
' discussion of the jointly filed contentions, the two contentions separately submitted by ECNP will be analyzed. b!
_3/ As designated therein, the various contentions were filed on behalf of LEA, Air and Water Pollution Patrol and Frank R. Romano (" Romano"), Consumers Education and Protective Association ("CEPA"),
Del-AWARE Unlimited, Inc. (" Del-AWARE"), Friends of the Earth in the Delaware Valley and Robert L.
Anthony.(" Anthony"), Keystone Alliance (" Keystone"),
National Lawyers Guild, Philadelphia Chapter
(" Guild"), Marvin I. Lewis (" Lewis"), William A.
Lochstet ("Lochstet"), Jchn-Shniper ("Shniper"),
Joseph H. White,.III (" White") and ECNP.
_4/ Memorandum and Order (October 14, 1981) (slip op. at 3
9-10.
_5/ No contentions _have been received from petitioners Taylor, Levin, Greenstein-and the Coopers.
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'Beforejaddressing alloof-the contentions:
- individually' however, some' initial observations of
- Lgeneral applicability should be'made.-
As th~e Board' stated'in-its November.12th-Order,
- petitioners-have been~on-notice since the. publication:of the1 Notice ofLOpportunity for Hearing on August 21, 1981' .
-that.'they;must begin-to: prepare contentions and~that the i
FSAR and.EROL were available for inspection. Given the 1.
advance notice and time of-preparation'available, the ,
number of petitioners and the numerous,_far-ranging L
issues they wish to litigate,Lthe Board should insist upon" strict. compliance with the specificity requirements l
l - of 10 C.F.R. 52.714 (b) and the Board's Order of October 14, 1981.
In Zion, the Appeal Board held that "there is no duty placed upon a licensing board by the Administrative Procedure Act, or by (the Atomic Energy] Act'and the~
regulations promulgated thereunder, to recast contentions offered by one of the litigants for the purpose of making p those contentions acceptable." 6/ Thus, the Board should i
not engage in a rewriting or reformulation of any improper contentions.
_6/ Commonwealth Edison Company (Zion-Station, Units 1 ,
and 2), ALAB-226,-8 AEC 381; 406 (1974).- See also !
Texas Utilities Generating Company_ (Comanche Peak I Steam Electric. Station, Units 1 and 2), Docket.wos.
50-445 and 50-446,'" Rulings on Objections:to. Board's
[ Order" (October 31, - 1980 ) (a, lip op. at 7) .
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Many_of the contantions, while setting forth
- petitioners' views at length, are so completely lacking in technical specificity _that it is impossible to e
determine the regulation or other requirement with which compliance is deemed to be lacking. In the Clinton proceeding, the Licensing Board rejected contentions relating to general design criteria and generic safety issues similar to some of the proposed contentions here as lacking " reasonable specificity." 1 Other contentions suffer from the same infirmity critici7.ed in an: earlier aspect of the Clinton proceeding by the Appeal Board because they constituted only an " oblique reference" to possible issues.-8/
Others are like those rejected in the Offshore Power proceeding, which the Licensing Board found to be impermisaibly "conclusional
. . . barren and unfocused." E!
In Susquehanna, the Board emphasized that the specificity requirement precludes a petitioner from j merely citing an alleged deficiency or error in the L application. In rejecting such an approach, the Board l
f stated:
~~7/ Illinois Power Company (Clinton Power Station, Units l and 2) , Docket Nos. 50-461 and 50-462-OL,
" Memorandum and Order" (May 29, 1981) (slip op. at 6, 11-14).
--8/ Illinois Power Company (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 NRC 27, 51 (1976).
_9/ Offshore Power Systems (Madufacturing License for Floating Nuclear Power Plants), LBP-77-48, 6 NRC 249, 250-51 (1977).
f f A
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In order to evaluate whether a.
contention presents an issue in cont'roversy, the regulations specify that their bases should be set forth.
-with reasonable specificity. -Here, we are left to' wander aimlessly in our speculation on the details of the-allegations--a practice obviously unfair to proper procedure, to the parties and the Board. The contention will^not be admitted. 10/
Thus, it is'not enough for a' petitioner merely to assert that the Applicant has failed to comply with a particular
- i. rule or requirement. The contention must "specify the particular features" of the requirement at issue and "show the nexus of those features" to safety.or environmental issues related to Limerick.11/ -
10/ Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2), Docket Nos.
50-387 and 50-388, "Me.torandum and Order on Pending Motions and' Requests" (July 7, 1981) (slip op. at 4) .
11/ Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), Docket No. 50-322 OL, " Memorandum and Order" (July 7, 1981) (slip op. at 6). The Board also stated:
The requirement of greater specificity is necessary to provide a fair opportunity for other parties to learn precisely what the issues ara, what proof, evidence or testimony is required to meet the issues, and what the Intervenor intends to ad-duce for its allegations.
Id. See also Arizona Public Service Company (Palo Verde Nuclear Generating Station, Units 1, 2 and 3),
Docket.Nos. STN 50-528, 50-529 and 50-530 OL,
" Memorandum and Order" (April 16, 1981) (slip op. at 6-9).
h
Introduction A substantial number of the contentions allege that the application ~for' operating licenses is somehow incomplete or that certain'information-is to be supplied later, but prior to the issuance of the operating licenses. As an example, LEA' acknowledges in contention I-33.F that certain documentation requirements are to be met "no less than four months prior to the scheduled issuance of the staff safety evaluation report," but still asserts as a deficiency that the material is not presently in the application.
The very nature of the NRC review of an application for a construction permit or operating license involves an ongoing, cumulative review taking several years.
During this period, the initial application is augmented by numerous additions, both in response to Staff questions and to provide information as it develops.12/ --
l By their very nature, final plans in such areas as fire protection, emergency planning, and operating technical specifications must necessarily track the completion of construction and testing. Similarly, the final submission of these portions of an application relate to the time in which the plant is to go into operation. In the case.of the Limerick Station, Unit 1 is not scheduled 12/
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E.g., 10 C . F . R. S S 2 .101 ( f) ('7 ) and 2.102(a). For example, in the Zimmer application, a total of 120 !
amendments have been filed to date.
- for fuel loading until October 1,'1984. Obviously, much must be done to.rcund out'the basic application.
As noted above, the Commission fully recognized this normal development of applications. It also determined that any contested' issues which would be permitted in a
-proceeding must be defined after-the docketing of the-application for an operating license. Therefore, it is clear that the Commission did not intend that every undeveloped portion of an application would be the ,
subject of'a contention under Section 2.714.
Applicant submits that these matters cannot constitute the basis for an admissible contention, nor can petitioners assert an absolute right to raise.these matters at some later time. The NRC Staff has found that the application is "compl9te and acceptable for docketing" (see 10 C.F.R. 52.101 (a) (3) ) . The I
Commission's regulations and consistent practice allow development of the technical points during the ongoing review process such that the appropriate findings can be made prior to the issuance of an operating license. A l
i fortiori, this approach is even more necessary where the i NRC position is still developing.
Applicant .ibmits that petitioners may not rely on a statement that information'is to be supplied in the course of review to state a valid contention. For each technical area for which a contention is sought to be raised, it is Applicant's positi'on-'that a petitioner must
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make a sh'owing, with specificity, that there.is some inherent problem with the design, construction or implementation of procedures for the Limerick Station that would prevent it from r.aeting NRC requirements, This petitioners have not done. Thus, as discussed below, many items do not constitute " contentions" in the sense contemplated by 10 C.F.R. S 2 . '/14 .
I. Technical Safety Issues I-1 to I-32. Probabilistic Risk Assessment. At thd outset, it should be emphasized that a probabilistic risk ascessment ("PRA") requested by the Staff, as discussed below, is not part of the application for operating licenses. The Commission's regulations, particularly 10 C.F.R. Part 50 and 51, contain nothing with regard to submitting any PRA. To the contrary, the request by the Staff for PRA's, which is a request to compare the proposed facility to the Reactor Safety Study (HASH-1400 i
referenced plant), goes beyond the requirements of the '
regulations. l That the Staff's request does not present litigable issues in this proceeding is clear from reference to the Commissicn's consideration in Indian Point of a petition 1 seeking, inter alia, the shutdown of Units 2 and 3. On February 22, 1980, the Commission approved publication of a notice soliciting comments on the decision by the Director, Office of Nuclear Reactor Regulation, granting
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partial 1relief. Specifically, the Commission-sought
-comments on five procedural options for further Commi'ssion actiion.1 I On May 30, 1981, the commission subsequently
~ determined that it would grant a " discretionary hearing" concerning the Indian Point 2 and 3 reactors 14I -
to consider the future of the facilities, primarily involving the probability and consequences of_ risk at Indian Point 2 and 3. The special Commission order called for a " trial-type adjudication" by a Task j, Force.bb In subsequent orders in the same matter, the Col.raission recognized the uniqueness of its procedure and designated it as a " discretionary proceeding (which) will be conducted . . . by an Atomic Safety and Licensing Board, using the full procedural format of a trial type adjudication, including discovery dnd 13/ Consolidated Edison Company of New York (Indian Point, Units Nos. 1 and 2), and Power Authority of the State of New York (Indian Point, Unit No. 3);
Solicitation of Comments on Director's Decision Under 10 C.F.R. 2.206, 45 Fed. Reg. 11969 (February 22, 1980).
--14/ Letter from Director, Division of Licensing, Office of Nuclear Reactor Regulation, to Applicant, dated May 6, 1980. Consolidated Edison Company of New
-York, Inc. (Indian Point, Unit No. 2), Docket Nos.
50-247 and 50-286, " Order" (tiay 30, 1980) (slip op, at 2) (emphasis added) .
15/ Id. at 3 (emphasis added).
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-cross-examination."- 16/ 1 The: Commission specifically.
recognized thatithis-special: review of Indian Point was{
not a proceeding-sdch as'the present^one involving-s Limerick because it stated:-
Because thel (Indian Point] proceeding, although adjudicatory in form,Jis-nct
< mandated by the Atomic Energy Act, it is not an "on.the record" proceeding within the. meaning of the Atomic Energy Act.17/
l Thus, it is clear that the.present Limerick 3; proceeding, pursuant to the mandate of-the Atomic Energy
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Act, may not be expanded under thh Commission's j regulations to involve consideration of the preliminary risk assessment.
Further, in its Order of May 30 , 1980 in Indian Point, the Commission expressly reserved to itself.the "determinatlon as to the form for generic consideration of the question of operation of reactors in areas of high population density after it has concluded (an] informal proceeding."18/
The Commission has not yet acted. This 4
, 16/ Indian Point, " Memorandum and Order" (January 8, 1981) (slip op. at 6) .
17/ Id. at 6 n.4 (emphasis added). It is interesting to.
note that in a subsequent revising " Memorandum and Order," dated September 21, 1981, the Commission dropped.the phrase "within the meaning of the Atomic Energy Act" -from the footnote, presumably to avoid redundancy.
' --18/ Consolidated Edison Company of New York (Indian
_ Point, Unit No. 2) , Docket Nos. 50-247 and'50-286
" Order," (May 30, 1980) (sli;p op. at 5) .
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Board' must await Commission action and specific direction by the Commission prior to proceeding in the direction
- advocated by petitioners, i.e., to use the PRA as a licensing document. For these reasons, none of-the contentions listed in petitioner'sSection I should be admitted. Moreover, most are little more than argument-andLspeculation as to the proper parameters and assumptions in WASH-1400 and supporting codes, which certainly are not the subject for litigation in this proceeding.- Specific comments on the individual contentions follow.
In Contention I-1, LEA merely states that certain backup information is not provided as part of the PRA, but no attempt is made to show any specific deficiency vis-a-vis meeting the Commission's regulations. Since the PRA itself is not subject to
. review in this proceeding, it is irrelevant whether fault trees have been withheld pursuant to 10 C.F.R. S2.790.
As previously stated, the purported " reservation of a right" to submit a contention at a later time does not constitute a presently valid contention.
In Contentions I-2, I-3, I-4, I-5 and I-6, the allegation is made of a deficiency in the Limerick PW1 in that it was not properly compared to WASH-1400.
As discussed above, such allegations do not present litigable matters.
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In Contention I-7, it is as'serted that the fault tree model only extends down to the component level and T
that'"no subpart-level' common mode failures were
. considered." While-this statement may be true, there is i
no allegation of'a. specific deficiency or how such alleged. deficiency would significantly affect the ultimate results of the PRA. In the absence of such a 1 showing, this. matter should not be admitted.
In. Contention I-8,. LEA would apparently substitute a
" log normally distributed variants" as "are used in aerospace" for the gamma distribution used in the PRA.
However, no specific basis is given as to any deficiency in Applicant's analysis (or in WASH-1400) nor any particular reason why the log normal function is superior or even applicable to the Limerick Station analysis.
In Contention I-9, LEA asserts that accidents that occur at less than full power and during refueling must be included, but provides no basis to show that such consideration would significantly influence the reported results in the PRA. Therefore, it does not present a
- litigable issue.
While it is quite vague, Contention I-10 somehow faults the PRA for less than " perfect quantification" of certain fault trees, but gives no specific reference to the document, nor does it provide a basis for the alleged deficiency. Furthermore, this contention does not attempt to show what alleged effect it would have on the w -c
.PRA. Similarly, Contentions I-ll and I-13 involve matters which petitioners believe should be considered in the PRA in a-different manner than in WASH-1400. These are general observations, but'do not demonstrate a specific deficiency in the present overall analysis.
Contention'I-12 states that "[nlo accounting is made for intentional or accidental errors" but'does not state how this could, in reality, be taken into account or the exact manner in which the PRA is thereby defective. This item'is vague and speculative. Similarly, Contention I-14 which states, in a conclusionary manner, that "not all combinations of potential design environments and failures can ever be anticipated" is an admission that no issue which may be litigated truly exists. While asserting that certain " realistic" testing has not been done, it cites no regulatory basis that these tests are required and states nothing they could add to the Lirerick PRA.
Contention I-15 is merely argumentative and fails to state an issue. No basis for any deficiency in the PRA is stated. It is merely speculated that there is
" inadequate design review" without any basis whatsoever pleaded. No legitimate issue is raised.
In Contention I-16, it is alleged that there is
" insufficient justification" for a number of inputs.to the CRAC Code, but no basis is given As to any specific inadequacy or error. This conte'ntion completely lacks specificity and fails to present a litigable matter.
Contentions I-17,.I-28 and I-29 are conclusionary and speculative'and have no' supporting' bases. They assert,.without basis or reference, certain."recent questions that have arisen" regarding interpretation of data and that other information may possibly be-
. appropriate for inclusion in the PRA. These items fail to specify the exact material in specific sections of the PRA alleged to be inadequate for their purpose or the effect of the alleged deficiency on the outcome of the PRA. No specific contentions have been stated.
Contention I-18 is similarly conclusionary. While it alleges that exclusion of qualification requirements, which are completely undefined, " improperly decreases the risk calculation," no basis is given for the assertion of inadequacy and no specific deficiency in the ultimate results of the PRA is alleged.
Contentions I-19 and I-20 state that certain documentation to support assumptions have not been supplied. These items do not allege any substantive inadequacy in the PRA. Petitioners make no showing that the values used are inappropriate. These are not contencions which may be litigated.
Contention I-21 alleges that as a result of the Browns Ferry fire, further analysis between the unit under construction and the one in operation mu; be made.
However, in accordance with 10 C.F.R. 550. 34 (b) (5) (vii) ,
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an analysis which assures that such interaction.will'not; occur will be made-by the Applicant and reviewed by the NRC Staff. Thus, there is no need to postulate any adverse interaction between the units. Hence, this matter need not be considered in the PRA. To admit this item would be a prohibited attack on the above stated regulation.
Contentions I-23 and I-24 argue with the scope of the PRA, but make no assertion as to how-the PRA would be affected if these matters raised in these items were included. In view of the NRC's stringent requirements regarding such matters as sabotage, fire protection and protection against natural phenomena, there is no basis given why consideration of any of these matters would affect the ultimate conclusion. The assertion that the Applicant would put a " financial incentive" above safe operation is totally without basis 11 and should be stricken.
Contentions I-25, I-26 and I-27 merely take issue with some of the assumptions and data used in the PRA without asserting any specific deficiency, the basis for the alleged deficiency, or what petitioner alleges the data or input should be. For example, the use of five years of meteorological data is attacked, but no specific deficiency is alleged. How the inclusion of "the full 19/ See note 42, infra.
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range of expected weather conditions or the historical distribution of these conditions throughout the year" would' affect the.results of the PRA is not stated.- These
~ do not constitute contentions which may be considered by the Licensing Board.
Contentions I-30 and I-31, which discuss the health effects portion of the PRA, allege general inadequacies in tha PRA methodology. For example, I-31 states that one assumption has not been justified. There is no
. specific inadequacy stated, nor is there an assertion that it would be impossible to provide the necessary treatment to affected members of the public. Since provisions for treatment of individuals exposed to radiation are made as part of the emergency planning requirements, there is no basis for assuming that such treatment will not be available.
Contention I-32, which requests the Board to require a " detailed peer review of the Limerick PRA," presents a matter for which this Licensing Board can grant no relief. This Board may consider only the evidence adduced by the parties and may not order " peer review" of the PRA or otherwise " call upon independent consultants itself for the purpose of supplementing what it deems to be an unsatisfactory record," except for "that most extraordinary situation in which it is demonstrated beyond question that a board simply cannot otherwise w
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_rea'h an informed decision on the issue involved."- South Carolina Electric & Gas Company (Virgil C. Summer Nuclear Station), Docket No. 50-395 OL, ALAB " Memorandum" (August 27, 1981) (slip op. at 6) . This item should not be considered.
I-33 to I-38. TMI Action Plan-and other generic requirements. The items in Contention I-33 have been previously treated in a generic context 20/ and addressed by other licensees as such in other proceedings. Nothing is presented which would give any indication that there.
is anything unique about the Limerick design which would present successful implementation of all NRC requirements. No real issues are raised here. The same is true for Contentions I-34 through I-38. For example, no litigable issue is presented by the assertion in Contention I-37 that requirements not yet extant must be complied with.
I-39. Pipe storage. This relates to a matter pending between the Applicant and Staff concerning pipe storage practices during construction. The existence of-a presently unresolved item between the Applicant and Staff does not per se support a contention filed by intervenor. There is no allegation that the Staff is not handling the matter properly or that action to protect the health and safety cannot be taken prior to the issuance of an operating license.
'10/ See pages 7-9, supra.
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- . I-4 0 . Documentation'. This contention is merely a generalized attack upon the facility. It is not clear what petitioner is= seeking to pursue or what substantive relieffit would have1the Licensing Board grant'. This item states'that without another several layers of
- paperwork, the Licensing Board could not make a " finding
--th'at aLlevel of. safety equivalent to current regulatory practices does in fact exist." Initially, it is entirely .
uhelear what the above quoted language really means.
Moreover, a licensir.g board does not make general safety f'indings at the operating license stage. It only decides the-contested issues before it.
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There is no indication, whatsoever, that the NRC Staff t.
will not, properly carry out its responsibilities at the operating license, stage in making all findings necessary for the issuance of the operating licenses. This matter should not be cons'idered.
s ,
s I-41 to I-46. -
Issues Pending Staff Review. These ,
contentions are more examples of issues which will be addressed during the course of review. As previously discussed, none o( these. raise matters should be admitted 4 1 as contentions in the proceeding.
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'. I-47 to I-48. HPCI Pumps. These contentions assert that two additional HPCI pumps should be~ included in each Limerick unit, with the apparent philosophy that "more is betQer." However, no allegation is made that the present systeh- does not meet all NRC reg'uirements, including
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those relating;to emergency core' cooling, e.g.,.10 C.F.R. 550.46. .The ECCS system at Limerick includes other sub-systems'uhich are redundant to the HPCI. The operation of the ECCS, as a whole and as completely described in the application, is entirely ignored by petitioner.
I-49. Electromagnetic Pulse ("EMP"). This contention does not present a legitimate issue for consideration, which is. clearly barred by 10 C.F.R.
S50.13. Other licensing boards have denied contentions to consider the effect of an EMP on a nuclear plant based upon 10 C.F.R. S50.13.21/ Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), Docket No. 50-466, " Order" (July 22, 1981); Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), Docket Nos. 50-440 and' 50-441 OL, " Memorandum and Order" (October 2, 1981) (slip op, at 1-5). This matter should be denied.
I-50. Shiping fuel casks. This is a vague and generalized attack on spent fuel shipping cask matters
--21/ The provisions of Section 50.13 implemented the decision of the Commission in Florida Power & Light Company (Turkey Point Nuclear Generating Station, Units No. 3 and 4), 4 AEC 9 (1967), which precluded consideration of such matters, and which was sustained by the Court of Appeals for the District of Columbia in Seigel v. AEC, 400 F.2d 778 (D.C.
Cir. 1968).
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I with no specific application to-Limerick shown.
As such,.
it is clearly a prohibited attack on the NRC' regulations, particularly 10 C.F.R. Part 73. Further, offsite fuel shipments are not involved in this proceeding. See
. Philadelphia Electric Company (Peach Bottom Atomic Power; Station, Units 2 & 3), ALAB-216, 8 AEC 13, 30 (1974).
This contention should be denied.
I-51. Hydrogen generation. This contention which alleges that excess hydrogen generation would breach the
' Limerick containment, ignores NRC requirements for hydrogen control promulgated after the TMI accident and ignores the fact that Limerick will be inerted, reducing the oxygen component of the containment atmosphere to such a level as to preclude a hydrogen spike such as occured at TMI. This contention has no applicability to Limerick and therefore presents no legitimate issue.
-I-52. Seismic separation gaps. This contention is entirely vague and incomprehensible. No litigable issue is raised.
I-53. Fuel cladding. This contention recites that the generic issue of fuel cladding has not been resolved at Limerick, but points to no specific deficiency in the application. The only basis is an article in The Ecologist (not attached), certainly not a recognized treatise in the nuclear energy field. Without further specificity as to how this alleged matter applies to Limerick, this matter should not'be admitted as a contention.
I-54. FSAR. This= contention, which;would require the'FSARLto contain "a summary of operating experience Lwith GE reactors," is vague and non-specific. It contains no authority that such information is required pursuant to NRC regulations, nor any showing of what particular value it would provide the Board.
I-55 and I-56. Design of the BWR scram discharge system. This is a matter of the-NRC presently developing its new requirements.- There is no indication that Limerick cannot meet these requirements or that it will not by the time operating licenses are issued. No real issue is presented, i
I-57. Availability of makeuo water. First, sufficient water is stored onsite to meet all NRC requirements for safe shutdown. Secondly, the entire contention-is based on the erroneous legal premise that water which might have to be utilized during an emergency.
would have to come from the Perkiomen Creek or Delaware River if the plant were in the " river follower" mode of operation. However, it is clear that the DRBC's approval of the water use for the Station (DRBC Docket No.
D-69-210CP at p. 5) (March 29, 1973) permits the use of Schuylkill River at any time "in the event of any operational emergency requiring a shutdown of the plant."
Thus, this contention should be denied.
I-58. Siting. This contention alleges the Limerick site " exceeds the standards curr'ently recommended by the
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- i NRC for sitingEof~nuclearipower plants." There is no specification'as to what these alleged standards'are or
- how they apply to Limerick at the operating license stage. ' Absent such a showing,-this matter should not be admitted.22/
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1I.59. Design basis' accidents. This contention is an attack on the NRC's justification for. setting the
" design basis accident." There is' absolutely no showing of any deficiency in the Applicant's selection-and consideration of design' basis accidents as set-forth in the FSAR Chapter 15. This is nothing more than a j prohibited generalized attack on the Commission's regulations. Moreover, this matter was raised by, inter 4;
}- alia, Limerick Ecology Action, its present proponent at
- the construction permit stage.21/
22/ Section 108 (b) of.the NRC Appropriations Act of 1980, Public Law 96-295, 94 Stat. 783'(June 30, 1980), requires that only construction permit applications filed after October 1, 1979 meet demographic criteria to be established by the NRC.
This clearly does not apply to Limerick.
--23/ See " Order Determining Intervention" (April 4, 1972) (slip op. at 3) , which admitted Contention 16 and the Statement of Contention 16 set forth below:
- 16. A. . The applicant has failed to 4
establish that the design basis accident presented in the PSAR are the " worst" accidents.
(Footnote 23/ continued on next page) w -m w , - s
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In theiLicensing~ Board's Initial Decision _at the construction permit stage,Ethis issue was_ decided against LEA. N As discussed,-infra, consideration of this matter isLalso barred by the principle of res'judicata.
.This contentionLshould be~ dismissed.
I-60. Radioactive effluents. Petitioner has
-confused two concepts. GDC 60 of Appendix A to 10 C.F.R. Part 50 relates to " normal reactor operation, including anticipated operational occurrences," and not to any accident condition. The engineering safeguards required by 10 C.F.R. S100.10, which apply ~to accident analysis, are described throughout the application. No specific deficiency in the design of the present system is alleged. A-contention which states that the addition of another system would be an improvement should not be admitted if the facility, as proposed, meets all current requirements. This matter should not be admitted as an issue.
(Footnote 23,/ continued).
B. .The assumptions concerning the reliability of the engineered safe-guards and the quantities of radioactive products released in the design basis ac-
- cidents were not sufficiently analyzed and justified in the PSAR and are in-
- sufficiently set forth-to meet the applicant's burden of proof tx) establish the safety of the plant.
24/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LPB-74-44, 7 AEC 1098, 1101-1104,'1107-1110 ( 19 7 4 )". LEA was one of three organizations represented by a single attorney at the construction permit stage.
w -- - -
1 I-61. -Fire Protection. Petitioner attempts-to l 1
- automatically-preserve a contention dealing with the Applicant's fire protection evaluation to be submitted during the course of NRC review prior to the~ issuance of an operating license. As previously discussed, Applicants submit that tnis cannot constitute a valid contention.or reservation.
I-62. Pressurized Thermal Shock. Petitioner attempts to postulate a possible' problem with-pressurized water reactors to apply to boiling water reactors without any technical justification. As indicated by the memorandum from the Director, Division of Licensing, Nuclear Reactor Regulation to the Atomic Safety and Licensing Board in proceedings involving PWR facilities, dated May 8, 1981, there is no evidence that vessel failure resulting from thermal shock and other contributing factors is a problem for BWRs. Thus, there is absolutely no basis set forth as to why thermal shock would affect any BWR, let alone Limerick. Thus, this matter should not be admitted.
I-63. Cooling water supply. This contention constitutes an unparticularized assertion that the source of cooling water has not been established. No basis whatsoever is provided for thi9 assertion. For this reason and, as discussed in greater detail, infra, in response to contentions in Section V, this contention should be denied.
S l
i .- . -
--26 --
4II. Need for-Power II-1.- Need-for-power'and consideration of
' alternatives. As noted by the Licensing Board in Perry, the cost' benefit analysis under NEPA at the conctruction permit sttge balances "the advantage of generating nuclear power against the economic and environmental costs of~ construction and the potentially adverse-economic and safety effects of loading fuel, operating and decommissioning ~the reactor" and also considers
"-hether other methods of generating power might be preferable to the use of nuclear power generation." 25/ -
Issuance of the permit represents the Commission's conclusion that the cost-benefit balance tips in favor.of construction and operation of the reactor.
The Board in Perry concluded that " principles governing the finality of adjudications require us to respect findings reached during the construction permit adjudication,"21/ such that issues relating to the need for power and environmentally preferable alternatives may be readjudicated "only if there is a significant change 25/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), Docket Nos.
50-440 and 50-441-OL, "Special Prehearing Conference Memorandum and Order" (July 28, 1981) (slip op. at 37).
26/ Id.
.a
'of. circumstances or, poli.cy." E ;In particular, a Board' would.have to." find that the' changes are sufficient:for a.
. power plant, whose' construction has.been authorized, to be~ forced to sit-idle because theLeconomic and environmental costs' oft operation exceed the benefits-derived from the generation of power."28/ --
For this: reason,' generalized allegations of-a reduction-in need for power are not."sufficiently extensive to offset the environmental and economic. costs of construction, which has-been authorized and has become a sunk cost."21/ In.the Vogtle proceeding,_ the Director of Nuclear Reactor Regulation recently denied a petition to reopen the construction permit record in order to reassess the need for power.3A/ Noting prior decisions emphasizing the inherent uncertainty in any prediction of.
the need for electric power 31/ and the severe-27/ Id. at 38, citing Ala'bama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974).
28/ Id.
29/ Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 & 2), Docket Nos.
50-440 and 50-441-OL, " Memorandum and Order" (September 9, 1981) (slip op, at 2).
30/ Georgia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), DD-81-12, 14 NRC 265 (1981).
31/ Carolina Power and Light Company (Shearon Harris.
Nuclear Power Plant, Units 1-4), CLI-79-5, 9 NRC 607, 609-610 (1979).
y -
o '
- 28'-
. consequences in failing-to meet forecast needs,32/ the decision pointed out that an Applicant'may mak'e-the
?necessary showing of-a need for power in a variety of ways.
Thus, electric power from the nuclear facility may r
be needed to meet the forecast demand for electricity by consumers within the facility's service area,33/ or to meet the reserve margin requirements of power pools in which.the facility is a participant,34/ or to substitute L
for fossil-fueled power generation.35/-
The contention fails to allege with specificity any basis for relitigating the determ: nations of a need for power at the construction permit stage,.or for disputing the facts stated by Applicant in the EROL.
32/ Kansas Gas and Electric Company'(Wolf Creek Generating Station, Unit No. 1) , ALAB-462, 7 NRC 320, 329 (1978).
33/
~~
Wolf Creek, ALAB-462, 7 NRC at 327. Current demand projections by Applicant are discussed in the EROL S1.1.1.2.
--34/ Dairyland Pcwer Cooperative (La Crosse Boiling Water Reactor) , LBP-80-2, 11 NRC 44, 78 (1980). Applicant is a member of the Pe- sylvania-New Jersey-Maryland
("PJM") Interconnect sn and is also a party to the Mid-Atlantic Area C ancil ("MAAC"), as discussed in the EROL S51.1.1. and 1.1.3. Membership in the PJM and MAAC groups was considered in Chapter 9 of the AEC FES issued at the construction permit stage.
--35/ Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Power Station, Unit 2), ALAB-264, 1 NRC 347, 353 (1975). See EROL Table 1.1-7.
I sc -
- Inasmuch 1as NEPA-only requires consideration of environmentally-preferable ~ alternatives, - the-eccnomic-
-feasibility of alternatives need not be considered. The economic cost of any particular alternative is simply a matter._of business judgment for the Applicant.36/ -
Although some of the economic costs listed in the contentions may be included in the Applicant's EROL for the sake of' completeness,' compliance with NEPA by the NRC does not-require assessment of economic costs to the Applicant in the construction and operation of the facility. There is no allegation that environmental costs have been improperly evaluated, and certainly no showing has been made that the cost-benefit analysis conducted at the construction permit stage should be relitigated.31/
36/ Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456 (1980); Portland General Electric Company (Trojan Nuclear Plant) , ALAB-531, 9 NRC 263 (1979); Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155 (1978); Illinois Power Company (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 NRC 27, 48 (1976),
t
-~37/ Thus, hydroelectric generation was considered and rejected at the construction permit stage (FES S10.3.2) because of the small generation capacity available. Other alternatives, such as wind- or solar-powered generation or conservation, are clearly infeasible to meet generation needs and were adequately discussed in Chapter 9 of the EROL in light of NEPA's " rule of reason," which justifies exclusion or limited treatment of such alternatives.
See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 100 (1977). -
r ,
This contention should therefore be denied as lacking requisite-basis and specificity, in particular, a strong showing that there exists a significant issue not
.previously adequately considered or'significant new information'which has developed after the construction 1 permit review. Illinois Power Ccmpany (Clinton Power Station, Units 1 and 2), 13 NRC 709, 715-16 (1981);
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 86 (1979).' 8/ -
4 III. Financial Qualifications III-1. Financial qualifications. This contention is inadmissible because it fails to allege, let alone show a factual basis with specificity, that Applicant has failed to demonstrate " reasonable assurance of obtaining the necessary funds" to cover estimated operating costs, including decommissioning.39/ -
Such a showing of
" reasonable assurance" does not necessitate "a demonstration of near certainty that an applicant will never be presced for funds" but rather requires a showing 1
38/
~~
It is noted that the Commissioners are now considering a proposed rule which would eliminate consideration of need for power at the operating license stage as being unnecessarily duplicative of review at the construction permit stage and unlikely, in any event, to tip the NEPA cost-benefit balance against issuance of the license. See 46 Fed. Reg. 39440 (August 3, 1981).
39/ 10 C.F.R. S50.33(f). Public Service Company of New Hampshire (SeabrooK Station, Units 1 and 2),
CLI-78-1, 7 NRC 1, 17 (19 7 8,) .
p - -
simply that'the. applicant'has "a reasonable financing plan in the light of relevant circumstances.40/' -
Allegations that thefApplicant's bond rating.may be; reduced or devalued are speculative and, in any event, insufficient to raise a-litigable issue absent " evidence
-that a bond offering at [a lower] rating would be unsaleable."All Allegations of increased financial burdens are therefore also irrelevant. And, as the Commission itself noted_in Seabrook, there has never been "any demonstrated direct connection between financial qualifications and safety and utility industry . . . . [N]uclear safety regulation is premised on a system of multiple and redundant safety measures."12/ Under the current l
l 40/ Id. at 18.
i 41/ Id. at 20; Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 333-34 (1978).
~~42/ Seabrook, 7 NRC at 18. The Commission also-noted that "recent experience does not suggest that a utility short of funds will cut corners on safety,"
and that the vast sums involved in building a
- nuclear power plant run into " amounts far exceeding the comparative small sums a utility might expect to save by cutting corners in the construction."
at 18-19. Accordingly, the Commission rejected--Id.
claims, like those here, that safety would be compromised, calling such assertions " speculative."
l Id. at 19. It is also noteworthy that the Commission is considering a proposed rule which, in one version,'would eliminate altogether consideration'of financial qualifications, including decommissioning costs, at the operating license l stage. See 46 Fed. Reg. 41786 (August 18, 1981).
1 i
i
w- , ..
w o32 -
_z precedents',Lsuch vague-and; irrelevant _ assertions ~should-
~
not:be' entertained. .
III-2.- l Decommissioning. This contention is essentially a broadsideLagainstatheLalternative methods of decommissioning'which-the Commission.has under consideration in pending rulemaking to provide more
- apecific guidance on-decommissioning criteria.for reactors and other licensed: activities.43-- It must therefere'ce recognized that the area of-decommissioning is.one,for which the Commission has not yet specified
~
regulatory requirements.
To the contrary, it has been left to individual applicants to develop plans under one of several equally acceptable alternatives.44/ -
There is no allegation in the-contention that the alternatives designated by ApplicantAE fail to comply with existing requirements 43/ See 43 Fed. Reg. 10370 (March 13, 1978). As an adjunct to that proceeding, the Staff recently
. issued NUREG-0586, Draft Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities (January 1981). See also NUREG-0590 (Rev. 1) , thoughts on Regulation Changes for Decommissioning (December 1979).
~~44/ See 43 Fed. Reg. 10371 (March 13, 1978), which lists four acceptable alternatives: (1) mothballing; (2) in-place entombment; (3) removal of radioactive components and dismantling; and (4) conversion to a new nuclear system or a fossil-fuel system.
45/
See EROL S.5.8. As such, the contention constitutes only:a generic attack on the Commission's decommissioning policy and states no~ issue to be litigated as to Limerick.
z i l
m
- {
- under Regulatory Guide 1.86. See cenerally NUREG-O'436
-(Rev. 1), Plan for Reevaluation of NRC Policy-on.
Decommissioning.of-Muclear Facilities (December 1978).
As observed by the Board in Susouehanna, current NRC regulations-in no way " prescribe or proscribe any particular methods of decommissioning-(or even require
, that a particular method be identified)."16/ Noting the pending rulemaking, the Board therefore denied a
, contention which sought to raise "the specification of-the particular details of-the decommissioning method, or the imposition of a particular method of financing the decommissioning-of the facility."$1!
Insofar as finances are discussed, the contention impermissibly seeks to litigate fancied " huge new rate increases" and "the economic ability of rate payers . . .
to absorb (speculative] astronomic decommissioning 46,/ Pennsylvania Power & Light Company (Susquehanna
' Steam Electric Station, Units-1 and 2), LBP-79-6, 9 NRC 291, 313-314 (1979).
47/ Id. at 314. Public Service Company of Oklahoma (Black Fox Station,. Units 1 and 2), LBP-78-26, 8 NRC 102, 168-170 (1978); Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), LBP-79-13, 9 NRC 489, 527-28 (1979).
= .
I costs.." - RateJissues=are, ~ of course,?beyond=.the.
jurisdiction of:;the Board _In sum, the
-contention does;not allege or' state with specificity any
'basisEfor finding ~that the Applicant will be unable to c ,
Jadopt: any of the: several' options available for-decommissioning in such a manner as to provide-
" reasonable assurance" of the -public health and safety
- and meet 1the requirements ofLany newly adopted criteria in the pending rulemaking. This' contention should Ltherefore be denied.
IV. Employee Training IV-1. Training of spent fuel truck-drivers. This contention states no litigable issue because it dces not-allege any inability of the Applicant to comply with the requirements of 10 C.F.R. Part 73, Appendix D, relating to the subject matter for a training program for
. individuals'used as shipment escorts-for irradiated fuel.
Petitioner's disagreement with NUREG-0465'does not show 48/ Houston Lighting and-Power Company .
(Allens Creek Nuclear Generating Station, Unit 1),
ALAB-582, ll NRC 239, 243 n.8'(1980); Public Service Company of Oklahoma (Black Fox, Units 1 and 2),
aff'd,-ALAB-397, 5 NRC 1143, 1147 (1977); Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1-and 2), CLI-76-27, 4 NRC 610, 614 (1976). The "need for power"~ allegations in this contention have previously been addressed in
, response to Contention II-1; supra.
i
4 e
any.defici~ncy in the application or demonstrate: lack of
. ability to. comply with the requirement-under Appendix D that shipment escorts-be provided a. training program.A1 Further, plans for training spent fuel shipment escorts are not subject to Part.50 hearings. -See
- Cincinnati Gas & Electric Company (Wm. H.-Zimmer Nuclear Station), Docket No. 50-358 OL " Memorandum and Order" (January 23, 1981) (alip op. at 7) .
IV-2. Qualified reactor operators. This contention's discussion of the NRC's reactor operator testing procedures, including allegations of chea' ting at another facility,_ raises no litigable issue as-to Limerick. There is no allegation that all licensed operators at Limerick will not be properly qualified under the provisions of 10 C.F.R. Part 55. An individual adjudicatory proceeding such as this is not the proper forum to litigate the alleged inadequacies of the past procedures followed by the NRC under the provisions of Part 55. Nor is it the place to litigate alleged improprieties in testing at other facilities on the pure speculation that similar actions might take place at Limerick.
--49/ The Sierra Club Radioactive Waste Campaign is hardly
, sufficient authority to provide a basis for this contention.
e e
e
- 36 -
V. -Environment / Health' Effects Introduction Many of these contentions _are defective in their failure to recognize the limited scope of review at the F operating license stage applicable to the Applicant's EROL_and the Staff's FES. While 10 C.F.R. S51.20 enumerates those items which must be discussed in the Environmental Report at the construction permit stage, Section 51.21 provides that those matters must be discussed "only to the extent that they differ from those discussed or reflect new information in addition to that discussed in the final environmental impact statement prepared by the Commission in connection with the construction permit."
In many instances, petitioner's contentions reflect no appreciation of this fundamental distinction and fail to recognize that matters previously discussed and resolved need not be addressed anew at the hearing on the
) application for operating licenses. Further, many of the points raised here were adjudicated as contentions by petitioners such as LEA or otherwise resolved at the hearing at the construction permit stage.50/ -
5,0 / See Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-74-44, 7 AEC 1098 (1974).
No basis is shown in the instant contentions for relitigating these matters now.E1/
V-1. NEPA' treatment of Hopewell Village, Valley Forge National' Park and Schuylkill River Canal. This contention provides no factual basis to support its assertion'that,Lwith respect to certain historic sites, the EROL failed to contain "new information."b These matters are dispositively covered in the FES SS2.3.2 and 2.3.3, which notes that an archeological survey of the area showed "no evidence of the presence of anything of archeological significance," and that the Pennsylvania Historical and Museum Commission reported that no known historical landmarks would be affected. The contention's allegation of "new information" as to " low level radiation in air, water, and on the land" is so vague as to be incomprehensible.51I 51,/ At pp. 48-67, infra, Applicant discusses at greater length the legal basis for giving binding effect to earlier determinations of the Commission at the construction permit stage and to the decisions of other federal agencies regarding Limerick.
52/
Preliminarily, the contention shows considerable misunderstanding as to the discussion of the five factors necessary for an EIS under 42 U.S.C.
S4332 (2) (C) (i)-(v) and an applicant's Environmental Report pursuant to 10 C.F.R. S51.20 (a) (1)-(5) .
As noted, these requirements apply only to the construction permit application. Even in that regard, they must be discussed as to the proposed action, i.e., the construction and operation of Limerick. They need not and could not appropriately be discussed separately as to each impact, i.e, plume effects at Hopewell V,illage.
53/ Radiological impact from routine plant operation is discussed in the EROL S5.2.
- 1
- 38' -'
The1 allegation (that the. plume from!. Limerick's
} -cooling't'owers'should have'been discussed:in connection
\
withLHhpewellLVillage and Valley. Forge'because it'"would i ; warn-of radioactive ventireleases"{is. frivolous.54'/-
Possible deterrence of visitors to these' sites becauseLof
- the
- plOme isjso' speculative as not to warrant
) . consideration under NEPA.--55/ In any event, such -'
t psychological impacts may'not.be considered in a
' licensing proceeding.}6_/
- While no specificity is given, there is clearly no basis for the assertion that the plant's effect on aquatic life and stream flow was. ignored.51/ These 7- 54/ Plume behavior was comprehensively considered in FES S3.3.4.2 and is extensively discussed in EROL
- . S5.1.4.1. As discussed at pp. 85-86', infra, cooling towers were at issue at the construction permit stage and may not be relitigated now.
55/ NEPA requires only that the agency's EIS describe reasonably-forseeable' environmental impacts.
Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060, 1067-68 (8th Cir. 1977); Warm Springc Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir.
, 1977); Scientists Institute for Public Information 4
- v. AEC, 40.-F.2d 1079, 1092 (D.C. Cir. 1973). -
- ' 56/ Metropolitan Edison Company (Three Mile Island huclear Station, Unit No. 1) , CLI-81-20 (September 4 17, 1981).
--57/ See EROL S5.1.3. It is entirely unclear what
' Interference with the use of the river at Valley
- Forge" is-being discussed. The same is true of the f alleged effects of dredging'at the plant's-Schuylkill River intake, but any discussion of impacts-from dredging during-the construction of the intake facility would certainly be moot inasmuch as construction of this structure-is now essentially l- complete.-
_ - . , _ _ - - _ - , . - - . - - , , - , . - - ., . - - - _ - . - - -.-.,_,.m, -
--.39--
r-matters.were fully discussed ~at the construction permit stage,15/ and-no basis has be'en-shown for relitigation-now.
LThe contention also. reflects misunderstanding of the NRC's responsibilities for seeking advice from the Advisory Council on Historic Preservation ("ACHP")-
pursuant to Section :106 of the National Historic Preservation Act of' 1966, 16 U.S.C'. 5470f. 'The NRC has an obligation to consult with ACHP, not an obligation to
- independently verify its advice. There is no showing that such consultation-was in any way inadequate nor, in any event, a showing that an't properties on or eligible
-for listing on the National Register would be affected by Limerick.11I No litigable issue is stated by the unspecified assertion of certain " mistakes and omissions" regarding historic sites which could be affected by Limerick.
V-2. Impact of Limerick operation on Schuylkill River. This contention does not even attempt to state any litigable issues. It merely cites portions of the Applicant's EROL which petitioner believes to weigh against the issuance of the licenses for Limerick. There 58/ FES 552.5, 2.72, 5.2 and 5.4.
~
59/
~~
Consideration of the Delaware Canal by the Delaware River Basin Commission'and the United States Army Corps of Engineers is discussed at pp. 70-71, infra.
l l.
_--40
-_ 1 _ -
T
' ~
Jisino allegation)that.particular impacts resulting from: ~
Schuy'1killcRiveriwithdrawalzand discharge 1have;beenL p/ " ignored .:. 'Insfact,?these wereifully considered by:the'AEC' and:DRBC atithe; construction permit 1 stage.60/~ The amount-of:detailTgiven-to'a discussi'on of thesefimpacts',
thoweverifis clearly sufficien't:to permit'a proper-analysis by the'NRC'~in-the Staff's EIS. b'
-To'the extent the contention discusses radioactive 1 contamination from' routine' operation, it constitutes;an
~~ improper' challenge to'the effluent' limitations under 10 C.F.R.Part 201and Part 50, Appendix I. As to any -
.non-radiological discharges, the NPDES permit'to be issued by the Pennsylvania Department of Environmental l ' Resources ("PaDER") presents no litigable issue.62/ -
l4 The allegations regarding constraints upon
[ withdrawal from the'Schuylkill River and Perkiomen Creek l
as authorized by DRBC lie beyond-the scope of this-L proceeding because such matters are within the sole L province of DRBC.63/ -
The fact thatLthe NRC will consider?
the comments of the U.S. Department of the Interior regarding impacts on biota and l
JO / . FES S52.5.2.1, 5.2-and 5.4.1.2.
' 6_1_/ . See page 69, infra.
j, 62/- See pages 87-94, infra. j
!3/; See generally 1 discussion 1at pages 68-86, infra.
4
__ ., __ _ . - - -, _ m.
y -_
41
~
,s - e, u . .
~
stream flow resulting-from.the diversion of water from-the1 Delaware River' states no;1itigable issue. 'NEPA'does ,
~
not require an agency to veto a project because_of objections from other : commenting ' agencies.5AI This
~~
contention should therefore be. denied.
V-3. Hazards near Limerick.. This contention L
postulates a series of extraordinary hypothetical l sequences which petitioner alleges could possibly lead-to t
.a nuclear accident.. NEPA simply-does not require discussion of events based entirely upon conjecture.
Rather, the statute merely requires that the EIS analyze reasonably forseeable impacts.bb/ Such accidents were "
fully analyzed at the construction permit stage.-- 66/-
Moreover, the contention does-not even state any I basis for establishing a nexus between these hypothetical 64/
See generally Alaska v. Andrus, 508 F.2d 465, 472 (D.C. Cir.), vacated in part on other grounds,.439
~
L U.S. 922 (1928); Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers of the United States Army, 505 F. Supp. 732, 755,-758 l (D. Md. 1980); Sierra-Club v. Alexander, 484 F.
I Supp. 455, 469-79 (N.D.N.Y.), aff'd without' opinion, l 633 F.2d 206 (2d Cir. 1980); Chautauqua County l Environmental Defense Council v.-Adams, 452 F. Supp.
376, 381-82 (W.D.N.Y. 1978); Ford v. Train, 364 F.
Supp. 227, 234 (W.D. Wis. 1973). As discussed, infra, Applicant takes'the position that the NRC should not conduct its own de novo review of environmental impacts associated with the diversion L of water from the Delaware River for Limerick, but rather should utilize the findings and conclusions of DRBC in its cost-benefit analysis.
65/ See note 55, supra.
66/
FES' Chapter'7. See also Limerick, 7 AEC at 1106-1110.
l
_ events-and any adverse impact on the operation of the
. plant, i.e.,Jan abnormal release of radiation.- To assert that the plant's normalisafety systems would fail to operate and.therefore~ permit. abnormal releases to occur likewise calls:for cpeculation and conjecture. The matter of the. potential of nearby industrial,
._ transportation,_and military-facilities to affect the facility is completely covered in the-FSAR 52.2.
This discussion indicates why such improbable accidents are not considered safety hazards and, consequently, why no discussion of environmental impacts from such conjectural occurrences is necessary. Absolutely no deficiency in this discussion is alleged. This contention le without basis and should be denied.
V-4. Potential for air crashes. At best, this contention is incomprehensible. It seems to suggest that the NRC should consider possible hazards to pilots from matters unrelated to the plant, i.e., " changes of Visual Flight Rule conditions, and carburetor icing potential."
While this conceivably may be a matter for an agency such as the Federal Aviation Administration, it is not related to Limerick. Nothing is alleged to show that any releases in.the cooling towers would affect these two conditions. The other thrust of this contention is that
" cooling tower turbulence" might in some way increase the potential for air _ crashes. However, nothing in the basis provided for this contention even discusses turbulence.
e - 43-
LTo the. contrary, it'merely argues that some other values-than thosefused in the'EROL should be used, but. offers'no justification'for why data.from the Philadelphia National' Airport is more valid than that used.to discuss
-conditions at the: local airport. Moreover, thereuis no suggestion'that vapor from the coolingLtowers.could-affect.the Philadelphia International Airport traffic.
The conclusion of the EROL is that the Limerick cooling towers will have little or. no impact upon the:
operation of the only major airport in the vicinity, the Pottstown Municipal Airport, located approximately five miles northwest of Limerick. Southeast winds whch would extend the plume in the direction of the airport occur only 3.6 percent of the time and it is deemed unlikely that the plume would persist for five miles without rising above 1000 feet, the minimum allowed ceiling necessary for an airport to remain open under Visual Flight Rule.b1 The information contained in the EROL is clearly sufficient to enable the NRC to evaluate the insignificant impact on air flight operations in the vicinity of. Limerick. In particular, EROL demonstrates that weather modification as a result of the cooling towers will be negligible.68/
67/ EROL'S5.1.4.2.1.2.
68/ EROL S 5.1.4.2.2 et seg. -
.No deficiency ~has been shown in this. analysis. Nor
-has any basis been shown for relitigating the Board's unchallenged acceptance at the construction permit stage of the Staff's conclusion "that no special arrangements need be made in plant' design due t'o (nearby airport]
flights."5EI .The contention is devoid of any basis for any other conclusion and should.be denied.
V-5. Radioactive releases during normal operation and accidents. The initial portion of this contention is
. plainly a challenge to the Commission's numerical guides in meeting the "as inw as is reasonably achievable" standards of 10 C.F.R. Part 30, Appendix I, which are based upon "[t]he calculated annual total quantity of all radioactive material above background to be released"1S from the reactor. The remainder of the contention, discussing operational releases, fails to allege any specific failure by Applicant to comply with Part 50, Appendix I requirements. No basis is stated for "an independent radiological testing program" to be imposed' upon a facility licensee in addition to the radiological monitoring discussed in Applicant's FSAR.71/ -
Nor is l'
19/ Limerick, 7 AEC at 1101.
70/ 10 C.F.R. Part 50, Appendix I, Section II.A.
71/ FSAR S11.5.
-- 4 5 , - '
~
thereLany. showing lthat Limerick discharges will_fai1~to meet'all NRC requirements.72/ -
V-6. Water supplies from the Delaware River. - ThIs
' contention-is entirely.without specificity and factual basis. No showing is made of any failure ~to disclose environmental-impacts associated with the diversion of
-water from the Delaware River for Limerick and, as discussed below, all such impacts have been fully and comprehensively considered-by DRBC.73/ -
DRBC's findings and conclusions were fully reviewed by the AEC,74/ whose decision was affirmed by the Third Circuit Court of ,
Appeals.75/-
The contention contains no basis-in fact for reconsidering water supply issues within the jurisdiction of DRBC and finally decided at the-construction permit stage. As discussed below, DRBC acted to ensure that no adverse impact would result to downstream users as a result of the diversion of water from the Delaware River
--72/ It should also be noted that EPA regulations prohibit all discharges of PCBs. Therefore, the allegation that the effect of such discharges must be examined is a nullity.
73/ See pp. 68-86, infra.
74/ Limerick, 7 AEC at 1113-1132 and ALAB-262, 1 NRC 166-207.
75/ Environmental Coalition on Nuclear Power v. Nuclear Regulatory Commission,.No. 75-1411 (3d Cir. November 12, 1975) (unpublished judgment order) .
+
4 l e* .'
~~
c: . ,,
1
- i. -
- 46 :
I- ,
u !
byEestabli'shing ~a ' minimum flow of 3000 ' cfs at' Trenton as '
a'conditionffor the withdrawal.. ')
V-7. Permanent"disposalrof spent nuclear fuel from l
~
Limerick.- This contention is inva. lid for the reasons discussed'in1 response to ECNP Contention 2. 15 l -V-8.--
Radon emission. This~ contention is invalid i
for the reasons discussed in response to ECNP Petition.
1.11
! V-9. Iodine-129. This contention appears to be a proscribed attack'upon 10 C.F.R. Part 20, Appendix B. In any event,'it is invalid as wholly lacking in specificity or factual basis.- The contention does not explain how environmental and health consequences of Iodine-129 have been understated by Applicant in its EROL or why the Staff's FES cannot properly evaluate this particular impact appropriately in its cost-benefit analysis. Dose rate estimates are fully discussed in the EROL 55.2.4.
Full disclosure of these releases has therefore been made in compliance with NEPA.
V-10. Archeological remains. Petitioner alleges no violation of NEPA, the National Historic. Preservation Act, NRC regulations-or the Limerick construction permits, nor raise any other issue that this Board may hear. No basis is given for petitioner's assertion'that l
i l
! 76,/- 'See pp. 113-14, infra.
77/ See pp. 109-13, infra.
I r
[.
L
~ ' ' -
-g v
'%sf -
- - 47---
i
..A
$ . 4the'. fossil-find was.-significant., Petitioner has not
. ;. idiescribed-- the > fossil . to the Boar'd' or parties, which has u.[inany~eventbeenpreservedIbyApplicant.E As the a squ'e'hanna' Boa'rdistated,." site. archeology is a' subject-
< =which, as a $ractical matter, can only be. considered' t ~ n7prior to ibe authorization of. construction or, at the K ? .- '
O N Q ^~L , .; .
- % s . latest, ,during'the.early excavation phases of g- . w' , ,
y , ,. Pennsylvania Power & Light Company construction."
- s. - - -
%E.
?y.n m -
(Susquehanna Steam Electric Station, Units.1 and 2),
_. S' LBP-79-6.,#9 NRC 291, 323 (1979). Petitioner requests
- ,- that he and his family be permitted "to explore this impor.
tant-n,ew site even on an amateur basis." Such s .
..\ s .- ,
(a- relief could not be grar.ted, nor would it be consistent 1 v' i with NRC requirements for control of the exclusion area and industrial security.
Q^
'n_Y g_ s
- fy s
- t-
- ,s f %:
,- ~
4 a
?
1-78/ For.the information of the Licensing Board, the
. fossils in question were carefully studied by experts.in the field and will be placed on view at g
the Limerick Information Center. Since large-scale
-construction,~i.'e., earthmoving, activities are substantially complete, further discoveries are
!F unlikely. See FES S2.3.2.*
G FI f1
,.j, p,,
1- ..
A v[tii <
WJ
'~
Contentions of Del-AWARE Relating To The Point Pleasant Pumping Station Introduction In response to the Licensing Board's Memorandum:
and Order of. October 14, 1981,_ Del-AWARE Unlimited, Inc. (" Del-AWARE") has-submitted a memorandum discussing
.the applicability of collateral estoppel to findings of
.h the Commission at the construction. permit stage and the effect'to be given determinations of the Delaware River Basin Commission ("DRBC")' and other agencies with regard to the diversion of water from the Delaware River at Point
-Pleasant for Limerick. Preliminarily, Applicant will address the legal basis for giving full effect to these findings and determinations. Each of Del-AWARE's enumer-f ated contentions will then be discussed.
i Summary of Argument As noted in Applicant's answer to the Del-AWARE' petition, the contentions it wishes to litigate fall into one of two L
categories: first, matters which have been' thoroughly reviewed by the Commission and DRBC several years ago and, second, matters which were the subject of recent DRBC review and approval of which are pending before the United States Army Corps of Engineers (" the Corps") . The primary l jurisdiction of DRBC over water supply issues in Limerick -
79 /
as recognized by the Appeal Board in ALAB-262 -- and the legal basis for deferring to DRBC's judgment and expertise as to environmental impacts resulting from this particular-water allocation are set forth.in Applicant's answer and 8_0_/
will not be repeated herein. The answer also states the basis for precluding a relitigation of issues decided at the construction permit stage under the doctrine of Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974).
The basic misconception demonstrated in Del-AWARE's Memcrandum is its belief that the NRC should expand its review to whatever extent possible in order to accommodate Petitioner's desire to express its views on any particular aspect of a licensing proceeding at either the construction permit or operating license stage, depending on when the Petitioner's interest has been sufficiently " galvanized."
To the contrary, sound administrative practice and fairness to the other parties dictates that issues not be unnecessarily
, expanded and that review be confined to matters requiring resolution in the proceeding at hand.
]9/ Philadelphia Electric Company (Limerick Generating _
Station, Units 1 and 2), ALAB-262, 1 NRC 163 (1975).
80/ See Applicant's Answer to Petition for Intervention of Del-AWARE Unlimited, Inc. at pp. 8-18 (filed October'7, 1981).
g - -
This-principle is particularly applicable Eith regard ~
to complianceLwith the-National Environmental' Policy Act.of
-1969:("NEPA"), 42 U.S.C'.c54332,-which imposes.no substantive-requirements.but.merely states procedural obligations to examine and' disclose environmental impacts of the proposed-agency's action.. As the Supreme Court stated'in Vermont Yankee regarding intervenor participation in NRC' licensing proceed-I ings'in the area of NEPA, "it is still incumbent upon! inter-venors who wish to participate'to structure their participation
'~
.so that it:is meaningful, so1that it alerts the agency to the intervenors' position and contentions." --81/ This-principle precludes the relitigation of water supply issues decided at the construction permit stage or resolved or
- pending before other federal agencies, regardless of any newly aroused intarest on the part of individuals or groups j such as Del-AWARE.
l Argument A basic flaw in Del-AWARE's analysis is its misunder-standing of the unique nature and function of DRBC in providing for the management, conservation and allocation
- 81/ Vermont Yankee Nuclear Power Corp. v. Natural Resources i Defenses Council, 435 U.S. 519, 553 (1978).
l
, . = - . .
t
- 51s - .
.l T
. 3.2./
- af water resources in the DelawareLRiver Basin. Del-AWARE asserts'that.DRBC operates under a."substantially different. mandate" and.that "its decision is not' based-on 4
Jtechnicaliexpertise or empirical evaluation so.much'as it is on-criteria developed in a political process." Else-
- where, it states that DRBC's decisions are " hashed out in a 8Al political context" .and reflect " changing political 85/
decisions." '-
This transparent attempt to disparage DRBC's integrity and professional competence by insinuating that political motivations will interfere with its important statutory responsibilities is utterly unjustified. The authority of DRBC to. grant project approval is based upon the express provisions of Section 3.8 of the DRBC Compact, and the DRBC Rules of Practice and Procedure. These rules provide
--82/ See generally Delaware Water Emergency Group v. Hansler, Civil Action No. 80-4372 (E.D. Pa. August 17, 1981)
(slip op. at 3-8). A copy of this decision was pre-viously furnished to the Board and parties with Appli-cant's answer to the Del-AWARE petition.
83/ Del-AWARE Memorandum at p. 2.
}
84/ Id. at 3.
85/ Id. at 4. Del-AWARE also states that DRBC's " primary reference point is the politically derived basin plan." ,
, Id.'at 5. ,
t-f
-L52 -
clearly defined, orderly procedures for.the preparation and processing of environmental: impact statements which fully 86/
comply with all NEPA requirements. - 'Even though'not required under NEPA, these' rules also provide an opportunity for a hearing upon request by any person aggrieved by any
. 87/
action or' decision of the agency. --
Moreover, the Court in Delaware Water Emergency Group
- v. Hansler, Civil Action.No. 80-4372 (E . D . Pa. August 17, 1981), exhaustively reviewed DRBC's compliance with NEPA against a myriad of allegations similar to those raised by Del-AWARE and approved DRBC's environmental analysis of the Point Pleasant diversion in each and every aspect. The allegation that DRBC's decisions are not predicated on technical expertise and empirical evaluation is frivilous and clearly refuted by reference to its Final Environmental Impact Statement (February 1973) ("DRBC FEIS") and Final 86/ See Article 4, DRBC Rules of Practice and Procedure.
--87/ See Section 2-6.l(b), DRBC Rules of Practice and Pro-cedure. Such an adjudicatory hearing was held, prior to the issuance by DRBC of Docket No. D-69-210 CP (Final), which included the Limerick water supply aspects within the DRBC Comprehensive Plan and gave Section 3.8 approval to the consumptive use of water at the Limerick Generating Station and the Schuylkill River and also approved Perkiomen Creek intake and diversion structures.
c -
g_; ,
-.53 - -
~ Environmental: Assessment- (August 1980) ("DRBC FEA") prepared 1
for the ' Point' Pleasant project. Further,-~ the: Appeal Board
-in ALAB-262 obviously believed that: DRBC possesses a high
~
. ' degree of professional expertise in endorsing the Staff's use-of'its. findings. Accordingly, it is groundless for Del-AWARE:to insinuate that-DRBC's fulfillment' of its statutory obligations under its Compact and NEPA might somehow have been politically tinged or not as thorough a review asLwould be conducted by the NRC.
The cases which Del-AWARE cites in support'of the. pro-position that DRBC and the NRC operate with different substan-88/
tive jurisdiction -- are inapposite. In those. cases, the findings made by the respective agencies emanated from proceedings under different statutes, which necessarily differed in purpose and' substance. With respect to the Point Pleasant project, on the other hand, the question is-whether the NRC should repeat the review under the same statutes, i.e., NEPA and other federal ~ environmental statutes.
Nor is this a situation in which the second agency would.be
. ceding basic authority under its generic operating statute, i.e., the Atomic Energy Act of.1954, for which it has primary 88/ Del-AWARE Memorandum at p. 3..
8 I
~ .
- 54'- ,
jurisdiction and expertise.
To the contrary, as the official creation of Congress and the states comprising the Delaware-River Basin, DRBC and not the NRC is the federal agency which exercises generic statutory responsibilities over water quality and water control in this region. Its responsibilities in fact parallel NEPA's environmental concerns. Given its clear mandate by 89/
~~
Congress and the States in this area, it is puzzling how Del-AWARE can assert that DRBC lacks technical expertise in 90/
~~
allocating Basin water resources.
See, e.g., DRBC Compact Sl.3 and Articles 3, 4, 5, 6,
---89/
78, 9, 10 and 13.
gq/ Del-AWARE Memorandum at 3. The matters alleged at page 5 of the Del-AWARE Memorandum do not disprove DRBC's expertise. As dicussed in the text, infra, DRBC fully considered construction impacts on the Delaware Canal. Responsibility for determining the possible in-clusion of the Village of Point Pleasant and adjacent townships as an historic district on the National Register was assumed by the Corps only because the request from the State Historic Preservation Officer
("SHPO") was not made until April 3, 1980 and a formal submission to the Keeper of the National Register was not prepared by the requesting parties in time for DRBC to act.
In fact, the submission is still in preparation. See page 77 , infra. The Advisory Council on Historic Pre-servation, which offers comments to federal agencies on the potential impact of federally licensed activity on historic sites, see 16 U.S.C. S470f, must be consulted as a result of any future determination by the Keeper of the National Register that Point Pleasant is eligible for inclusion of the National Register. Accordingly, the activities of the SHPO and Advisory Counsel operate independently of the consulting federal agency, whether DRBC, the Corps or NRC, and have nothing to do with DRBC's technical _ expertise in the sphere of water resources management. -
Similarly, the fact that a permit for the Point Pleasant-intake facility is required from the Corps under Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. 5403, and a certification is required by the Pennsyl-vania Department of Environmental Resources (" P aDER" ) under Section 401 of the Clean Water Act, 33 U.S.C. S1341,.has nothing to do with DRBC's expertise in regulating water 91/
resources of the Delaware River Basin.
Del-AWARE does not explain how " Congress has given the 92/
Corps the lead on salinity issues," -- but the record is clear that salinity intrusion from the Delaware River was 2.1/
fully and adequately considered by both DRBC and the AEC.
gl,/ It is noted, however, that DRBC conditioned its approval of the Point Pleasant project upon the Applicant's cooperation with the U.S. Fish and Wildlife Service and the Pennsylvania Fish Commission "to construct intakes which will equal or surpass an EPA-approved intake design criteria" and has reserved the right to. approve the final design of the intake structure. See Docket No.
65-76 CP(8) at pp. 11, 13 (February 18, 1981). Adverse impact to aquatic life in the area of the intake structure was analyzed by DRBC, see DRBC FEA Part III, pp. 2-33 to 34, although it was certainly reasonable to share this responsibility with the Corps in the context of its separate permitting procedures.
g/ Del-AWARE Memorandum at p. 5.
91/ The issue of flow maintenance in the Delaware River in order to prevent an increase of salt water intrusion and deteriora-tion of water quality in the Delaware River Estuary was fully considered by DRBC and the AEC in 1973.- As reflected in the DRBC FEIS (1973) , water quality standards applica-ble to the Delaware River at Point Pleasant had been estab-lished (p. 23), specific limitations were imposed upon the use of consumptive water for. Limerick to avoid deterioration of water quality (p. 29-31), which were.largely intended to preclude excessive salinity intrusions from the Delaware River. See DRBC FEIS at p. 34, 39; FEA Part IV, p. 47-48.
The AEC fully considered the 1973 findings by'DRBC. See AEC FES 55.2 (November 1973).
+-
1 , - \
c The fact that the Corps or other agencies have related
~
responsibilities is irrelevant to the technical expertise and competence exercised by DRBC in preparing a comprehen-sive and authoritative FEIS and FEA. ~~94/
DRBC is clearly a federal agency for purposes of NEPA.
The Appeal Board in ALAB-262, of course, definitively deter--
mined that DRBC is a federal agency within the. contemplation of NEPA. --95/Further,the federal courts have accepted DRBC's judgment that NEPA is applicable to its actions. These courts have therefore reviewed DRBC's orders to determine full compliance with NEPA. See Delaware Water Emergency Group v. Hansler, Civil Action No. 80-4372 (E . D . Pa. August 17, 1981); Bucks County Board of Commissioners v. Interstate Energy Co., 403 F. Supp. 805 (E . D . Pa. 1975); Borough of Morrisville v. DRBC, 399 F. Supp. 469 (E.D. Pa. 1975),
aff'd, 532 F.2d 745 (3d Cir. 1976). Whatever doubts initially expressed by the DWEG court, it did in fact determino that 94/ The suggestion that DRBC cannot make " disinterested technical findings," Del-AWARE Memorandum at p. 5, because it exacts a charge for water withdrawals frcm the basin is frivolous.. Such charges are authorized under'Section 3.7 of the Compact as a standard practice.
"Neither the Compact nor the [ implementing] Resolution makes imposition of a charge for the use of the water depend ~on whether the particular use will be subject to review under Section 3.8" DRBC v. Bucks County Wat'er and Sewer Authority, 474 F. Supp. 1249, 1254-(E.D. Pa.
1979), appeal dismissed, 615 F.2d 1353 (3d Cir. 1980),
and therefore subject to NEPA consideration.
95/ Limerick, ALAB-262, 1 NRC at 187-89.
~ . . .
DRBC had fully comp ied with NEPA as to its approval'of the Po' int Pleasant project. The question is thus truly academic in considering what effect the NRC should give those findings.
Del-AWARE's analysis of the statutory relationship
.between the NRC and DRBC is also erroneous. Del-AWARE seeks
'o t distinguish the situation in Seabrook where the Commission refused to permit relitigation of an; issue decided by EPA "possibly leading to different determinations concerning aquatic impacts" even though the NRC was bound by EPA's designation of the prescribed cooling system associated with those impacts. ~~96/ Del-AWARE finds that situation different because ~ the "NRC is free to reject or modify DRBC's deter-mination."
This view of the NRC's statutory authority reflects a clear misunderstanding of the plenary jurisdiction exer-cised by DRBC over water resources in the Delaware River 33/ Public Service Company of New Hampshire, (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 24 (1978).
See Del-AWARE Memorandum at p. 6-7.
p/ Del-AWARE Memorandum at p. 6.
l I
l l
l 1
Basin ~~98/-
and' ignores the practicalities of the relation-ship between the-two agencies. Thus, whatever conditions may be imposed by the NRC,' Applicant cannot ignore the conditions imposed by DRBC in its docket decisions auth -
orizing the diversion of water at Point Pleasant. Since those conditions are inextricably bound up with DRBC's determination of environmental impacts and represent its best technical judgment as to the measures necessary to eliminate or mitigate those impacts, it would be pointless, under the Commission's Seabrook rationale, for the NRC to conduct a separate review of those impacts.
Another flaw in Del-AWARE's argument is the mistaken premise that the NRC can fulfill its NEPA obligations only by conducting a separate, de novo environmental review of the Point Pleasant project. No such needless redundancy is required. Indeed, repetitious and overlapping environmental reviews are repugnant to the " lead agency" concept which the Appeal Board essentially endorsed in ALAB-262 in holding that it was " entirely appropriate" for
--98/ Elsewhere, Del-AWARE states that it is not contended "that DRBC has exclusive jurisdiction over water withdrawal." Del-AWARE Memorandum at p. 10. In fact, as Section 3.8 of the DRBC Compact expressly states, DRBC does have exclusive jurisdiction over water withdrawal in the Delaware River Basin. Other agencies may have shared jurisdiction with respect to water quality, permits for discharges and intakes, dredging and other matters, but only DRBC has authority to allocate water resources.-
. j
- l 59 - i the~'AEC' Staff to use the DRBC FEIS as'a basis for its own review. .The lead agency approach for Limerick was expressly approved by the Council on Environmental Quality
("CEQ") in'1973, in'which CEQ expressly authorized DRBC-to prepare the necessary environmental review, which the AEC would rely upon in its cost-benefit analysis.
Much of the remainder of Del-AWARE's memorandum dis-cusses a number.of alleged changes or new information-which it asserts was not considered by DRBC. As a practical matter, new environmental data will almost always become available after publication of an EIS and final agency action. In Vermont Yankee Nuclear Power Corp. v. Natural Defense Council, 435 U.S. 519 (1978), the Supreme Court recognized this practical consideration in stating that compliance with NEPA must "be judged by the information then available" to the agency at the time of decision,-
adding that if a rehearing could be demanded "because some new circumstance has arisen, some new trend has been observed or some new fact has been discovered, there would be little hope that the administrative process could ever
~~99/ 1 NRC at 189. The " lead agency" approach has also been formally adopted in the CEO regulations. See 40 C.F.R. S1501.6.
100/. Letter from Alvin L. Alm, Staff Director for Program Development, CEQ to James F. Wright, Executive Director, DRBC, dated March 23, 1973 (copy attached).
f be consummated in an' order.that would not'be--' subject to
- 101/- l
- reopening." ~' Applying this rule 'un' der the principle of '
comity;between agencies, the DRBC record'and' findings should not now be reopened by the NRC. ,
Moreover, all the matters'a'lleged by Del-AWARE that have:not recei ved specific treatment by DRBC are currently pending before the Army Corpsiof Engineers. As with the findings and determinations of DRBC, there is no need for the Corps' environmental analysis to be redone by-ths NRC
~
Staff.- The primary jurisdiction of each agency in-the-exercise of its particular statutory expertise should be
' 102/
respected. As its memorandum indicates, Del-AWARE'is pursuing precisely these issues before the Corps in the 103/
pending proceedings, where they will receive full-ventilation in compliance with NEPA. There is certainly
- no rational purpose served in the litigation of the same 101/ 435 U.S. at 553-55.
102/ The-specific items addressed by Del-AWARE in its memorandum will be" discussed in the context of its particular contentions, infra. The development of "new" issues by Del-AWARE merely emphasizes its failure to. participate in'the DRBC proceedings. Limerick Ecology Action, Keystone Alliance, Air and Water Pollution Patrol, Consumers Education and: Protective Association, and-FriendsLof the Earth did participate. See DRBC FEA, Appendix G.
103/ .See Del-AWARE's . Memorandum, Appendix I.
w- , w y- , e - .. , -ny -, - -%--.mw,--,~- ,w, ,- ,, , , , - - 3
- 61 - .
issues under.NEPA before two co-equal federal agencies.
Cther reasons expressed by Del-AWARE for asking the NRC to' redo DRBC's. environmental analysis are wrong on their face.. First, Del-AWARE states that the Limerick "construc-tion licensing proceedin'g dealt by definition only with 104/
issues related'to construction." This clearly misstates the Commission's requirements, now embodied in 10 C.F.R. Part 51, for the preparation of the Applicant's Environ-mental Report and the Staff's preparation of an FES at thr,
. construction permit stage, which plainly mandate discussion 105/
of environmental impacts from the operation of the facility.
As the lead agency with responsibility for reviewing all environmental impacts associated with the Point Pleasant diversion, DRDC has considered operational impacts of the 106!
project as well.~
Second, Del-AWARE incorrectly states that "the entire i
diversion project now is contemplated only because'of the 107/
Applicant's proposal." This patent fallacy is refuted i
104/ Del-AWARE Memorandum at p. 20.
105/ Of course, 10 C.F.R. 551.21 expressly states that the Environmental Report submitted at the operating license stage shall discuss the "same matters" contained in the Environmental Report at the construction permit k stage, "only to-the extent that they differ from those discussed or reflect new information." Operational impacts are therefore fully discussed.and considered at the construction permit stage. See e.g., AEC FES Chapter 5.
106/ See, e.g., DRBC FEA Part III, pp. 2-31 to 2-55.
107/ Del-AWARE Memorandum at p. 20.
~-
r -
by DRBC's ' findings in Docket No. D-65-76 CP (8) , which fully describe the physical features of the diversion. attributable to NWRA's usage and the predicted water demands of Bucks and Montgomery Counties to the year 2010 which will be served by the diversion. It'is unclear what Del-AWARE means in~ stating that "the NWRA portion of the diversion no longer stands 108/
alone," but whether the NWRA or Limerick portions of the 109/
diversion plan have " Independent utility" is not at-issue. The environmental impacts from the construction and operation of all components of the Point Pleasant diversion were considered by DRBC in its 1973 FEIS and 1980 FEA.
Del-AWARE has also totally failed to show why it is not now collaterally estopped from challenging the decisions resulting from the Commission's construction permit proceedings and DRBC's proceedings in view of the principles enunciated in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) as applied by the Licensing Board in Cleveland Electric Illumi-nating Co. (Perry Nuclear Power Plant, Units 1 and 2),
Docket Nos. 50-440 and 50-441, "Special Prehearing Conference 108/ Del-AWARE Memorandum at p. 21.
109/ See generally Kleppe v. Sierra Club, 427 U.S. 390 (1976).
The Supreme Court has indicated that a determination of which projects should be included in an EIS involves
" practical considerations of feasibility" and a "high level of technical expertise"'and therefore "is properly left to the informed discretion of the responsible federal.
agencies." Such discretion to review projects separately exists "[e]ven if environmental interrelationships could be shown conclusively." 427.U.S. at'412-14.
Memorandum and Order" (July 28, 1981). In Parklane, the Supreme Court made substantial inroads upon the " mutuality" 110/
requirement in holding that estoppel may be applied so as to give binding effect to a prior decision even where both parties to the latter action were not parties to the prior action.
The Perry decision properly applied the spirit of Parklane to NRC licensing to avoid a rehash of issues decided at the construction permit stage. The Board recog-nized that judicial cases and licensing proceedings are not the same, but properly determined that, while not strictly in privity, intervenors represent and share the same common interests held by the general public. The Board therefore concluded, correctly in our view, that the absence of a particular intervenor from the construction permit proceed-ing does not, weighing all the equities, preclude the Board from giving a binding effect to construction permit findings and determinations.
Specifically, the Board in Perry noted that " Commission licensing is dissimilar from many other forms of litigation" 110/ Under the old mutuality doctrine, as the Court explained, "neither party could use a prior judgment as an estoppel
- against the other unless both parties were bound by the iudgment." 439 U.S. at 326.
--64'-
s
[ because " licensing cases are notorious" and potential l-interven' ors'"have actual notice.rather_than just construc-111/
l .tive-notice" of the'proceedin'g. In the same-vein,.the.
Board:noted:that intervenors in Commission. proceedings,
_unlike-private' parties in judicial. litigation, express generalized' safety and environmental concerns common to other residents in the community who also live near the l 112/
l facility. Finally, it was noted that the_ applicant in a -
construction permit proceeding often invests over $1 billion in reliance on the' permit it has obtained and therefore l
l substantially relies upon its having successfully litigated 113/ ,
all issues raised at that stage.
Thus, the reasons why a potential intervenor or its
! membe'rs chose'not to participate at~the construction permit l
l stage on an issue resolved at that time are truly irrelevant l
because the greater equity lies in granting finality to i
111/ Perry, slip op. at 40-41. Since privity is not required, the recent creation of Del-AWARE does not provide a
. basis for avoiding collateral estoppel any more than it
! - would provide an excuse for late intervention. See Carolina Power and Light Company-(Shearon Harris Nuclear ,
Power-Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979);
Washington Public Power Supply System (WPPSS Nuclear
' Project No. 2), LPB-79-7, 9 NRC 330, 336 (1979).
'112/fPerry, slip-op. at 41.
113/.Id. at 41-42.
1
- 65 -
t .
.114/
.such determinations. .The. question is not whether Del-AWARE'uould "be expected'to be galvanized into~ action" by 115/
'the construction permit proceeding, but whether the policy of-judicial economy. set forth-in Parklane permits a relitigation of issues already decided.. , Del-AWARE. simply.
ignores the important equities favoring finality in the context'of construction permit and operation license proceedings, established by Congress which it frivolously describes as 11G/
"largely for the convenience and money-saving of applicant."
In' sum, the reasons discussed in Parklane and applied by the Board in Perry call for the application of collateral estoppel to the findings at the construction permit stage regarding the water supply aspects of Limerick. First, judicial economy would be promoted. Absent changed 114/ Del-AWARE's reliance upon Sierra Club v. Alexander, 484 F. Supp. 455, 464 (N.D.N.Y.), aff'd without opinion, 633 F.2d 206 (2d Cir. 1980), is misplaced. The court there merely determined that a plaintiff in federal court could not be estopped on the basis of state adminis-trative proceedings,.and questioned whether the plain-tiff actually did have a " full and fair opportunity" to litigate the issues it sought to raise. The case in no way suggests that a binding effect should not be given by the NRC to its own prior decisions or the decisions of co-equal federal agencies which share jurisdiction over aspects of the same project.
115/ Del-AWARE Memorandum at p. 24-25.
116/ Del-AWARE Memorandum at p. 25. Of course, Congress, not Applicant, established these procedures under Section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S2239.
l
~
circumstances, there is no point in rehashing _ issues already 117/
ventilated at the construction permit. stage. Second, all intervenors at the operating license stage have-had a
" full and fair opportunity" to litigate any issues or par-118/-
ticular concern to them at the construction permit stage.
Third, Applicant's substantial reliance upon the finality of matters resolved at the construction permit stage in the enormous investment of funds and other resources adds to the substantial equity in giving earlier findings binding 119/
. effect. Moreover, the same considerations apply equally to the findings of DRBC, now indicially approved, which have been or will be utilized by the NRC. These decisions are likewise based on records open to public scrutiny and comment, 117/ Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974).
118/ Del-AWARE does not claim that its members lacked notice of the earlier proceeding; it merely asserts that its members' interest was not.sufficiently aroused. Further, it is significant that all procedural rights available to it or its members at the construction permit stage. 439 U.S. at 332.
119/ The remaining discussion in Del-AWARE's memorandum as to the actions of other agencies is treated in Applicant's response to the particular contentions. Essentially, the same rationale for giving binding effect to the determina-tions of DRBC would be applicable to the Corps of Engineers in its current permit proceedings. The fact that addi-tional permits must be obtained from other agencies prior to the issuance of a license'does not state a litigable contention and it is therefore irrelevant.
i l
' ~
-~67 -
i including an opportunity for an adjudicatory' hearing.
' Collateral estoppel similary bars relitigation of those
' determinations.
In light of 'his c general discussion, Applicant now 121/
discusses the individual contentions of Del-AWARE below.
Much of this discussion cites findings by DRBC and the Corps,-
but only.for_the purpose of demonstrating that these agencies have exercised or w'll exercise full authority over the environmental matters alleged. The validity of their find -
ings should not, for the reasons discussed above, be reliti-gated by the NRC.
121/ An adjudicatory hearing was in fact held by DRSC prior to issuance of Docket No.69-210 CP (Final) (November 5, 1975), as indicated by that decision, in a challenge by ECNP.
120/ Throughout.its allegations petitioner sometimes refers to the Applicant as having " control" over the construction and other aspects of the Point Pleasant Diversion Plan.
It also refers to the Applicant's " joint venturer" in the project. Obviously, these characterizations'are made with the intention of insinuating that the Applicant, in fact has a greater responsibility than exists. In fact, the Neshaminy Water Resources Authority ("NWRA")
is responsible for the construction and operation of the Point Pleasant diversion, except for the Bradshaw Reser-voir and the transmission main to the Perkiomen Creek.
~~ ~ - ' " ~ * *
'- 68;-
l
'V-ll. . Environmental-impacts from Point-Pleasant Diversion. All environmental impacts associated'with the diversion'from the Delaware. River for Limerick.have been-fully evaluated by-DRBC in its 1973 FEIScand~-1980 FEA. The 4
latter review included an evaluation of all final design and operational changes.in:the project since its inclusion in,
.the-DRBC Comprehensive Plan. DRBC's decision in Docket No.
D-65-76 CP (8) refutes the allegation that "the Point Pleasant 1
i diversion would no longer occur but for the Applicant's desires for the water." In any event, all environmental ~
impacts of tne project, hcwever attributable, have been 1 comprehensively examined. Moreover, these have been fully j analyzed by the AEC in the construction stage FES and hearings.
There is no need for the EROL or the Staff's EIS to i'
address " secondary effects" of the Point Pleasant system attributable to NWRA's utilization for supplemental water supplies. Any environmental impacts attributable to NWRA's utilization of the diversion will result from actions taken pursuant to the DRBC decision and not any licensing of I
Limerick. No' unlawful segmentation of projects under NEPA has or will occur since all environmental impacts from the
' entire Point Pleasant project have been evaluated by DRBC,
.whose review has been judicially approved in Delaware
. Water Emergency Group v. Hansler, Civil Action'No. 80-4372 I . (E. D. Pa.-August-17, 1981). 3L reevaluation by the NRC is unnecessary for the reasons-discussed more fully above.
~ .
69 -
Although petitioner alleges that "significant changes"'have occurred, none is specified. The same argument was rejected lar DRBC in the issuance of its negative declaration, which 122/
was' approved.by the DWEG federal' court.
V-12. Irreparable harm to the economy and environment of the Delaware River Valley. The contention apparently summarizes specific contentions which follow, and as such, does not state any litigable issues. Nonetheless, the contention erroneously states that the Applicant must " carry its burden of proof" that certain adverse economic and environmental effects will not occur. The premise of the contention is erroneous, since NEPA merely imposes procedural obligations to examine and consider environmental consequences.
The statute does not compel an agency to " elevate environ-123/
mental concerns over other appropriate considerations,"
and, therefore, no quantum of proof as to environmental impacts must be met prior to final agency approval. NEPA merely requires preparation of an EIS with " sufficient information to enable the decision-maker to consider the environmental factors and to make a reasoned decision."
Westside Property Owners v. Schlesinger, 599 F.2d 1214, 1217 124/
(9th Cir. 1979). In any event, all such impacts have been 122/ Slip op at 29,_47-48.
123/ Strycker's Bay Neighborhood Council v. Karlen, 444 U.S.
223,-228 (1980).
124/ See also Kentucky v. Alexander, 655 F.2d 714 (6th Cir.
1981; North Slope Borough v. Andrus, 642_F.2d 589 (D.C.
Cir. 1980); County of Suffolk v. Secretary of Interior,
-562 F.2d 1368 (2d Cir. 1977).
o
fully considered.by DRBC and reviewed by the Commission at the construction permit stage.
V-13. Proposed intake structure -location and design.
This contention invalidly seeks to relitigate matters considered by DRBC.in granting final Section 3.8 approval and now pending before the Corps of Engineers under Section 10 of.the Rivers'and Harbors Appropriation Act of 1899, 33 U.S.C. S403. In essence, the contention alleges that blast-ing and dredging necessary for construction of the Point Pleasant ~ intake structure will adversely affect aquatic life in the area and the Pennsylvania Canal, an historic landmark on the National Register. There is no basis for the NRC to relitigate alleged adverse impacts to historic or archeo-logical sites.
The short-term impact involved in the construction of the intake structure pipeline crossing the Pennsylvania Canal has already been sufficiently addressed. At page 15 of Docket No. D-65-76 CP (8) , appropriate mitigating condi-tions are specified by DRBC in Condition W such that the Canal would be only temporarily disturbed by construction operations and restored to its original condition thereafter.
Arrangements have been made for construction procedures to be reviewed by PaDER and the Advisory Council on Historic 125/
Preservation. By letter dated January 22, 1981 (copy 125/ See DRBC FEA Part III, p. 2-34; Part IV, pp. 78-80.
See also DRBC FES pp.22-22a.
t
'O I'
attached), the Pennsylvania SHPO wrote DRBC to inform it that the Pennsylvania Historical and Museum Commission had reviewed the FEA and determined that "the report adequately deals with the impact of the project upen archeological resources in the e/rea and the historic Delaware (Pennsyl-vanial Canal."
The Corps of Engineers has adopted DRBC's approach for mitigating adverse impacts to the Canal. Its draft Environ-mental Assessment prepared in conjunction with permit approval for the Point Pleasant intake structure states:
The procedures for construction in and adjacent to the Delaware Canal will be in accordance to require-ments set forth by the National Advisory Council on Historic Pre-servation, the State Historical Office, and the Keeper of the National Register. An archeologist will be retained by the applicant to observe construction at the Canal. 126/
Accordingly, there has been full compliance with the National Historic Preservation Act of 1966, in particular the require-ments under Section 106, 16 U.S.C. S470f, that the effects on National Register landmarks be considered in approving federal actions.
126/ United States Army Corps of Engineers, Draft Environ-mental Assessment for Permit Application 80-0534-3 at
- p. 6 (March 1981) (" Corps Environmental Assessment")
(copy attached).
The effects of the Point Pleasant Pumping Station upon aquatic ecology in the area was fully considered by DRBC in its 1980 FEA, which concluded that aquatic ecology would actually be improved as a result of an increase in water quality. It stated, inter-alia:
Shad juveniles were concentrated in the area during the 1979 fall emigration. The area is likely to receive greater use as a nur-L -
sery and possibly a spawning area, as fish react to the general i improvement in water quality l basin-wide. 127/
Moreover, the Corps Draft Environmental Assessment comments extensively on the intake structure's impacts on aquatic life, generally concluding that any adverse impact l will be negligible. Noting the increased importance of the j vicinity of Point Pleasant as a nursery ground for the American shad in recent years, the Corps'nonetheless con-cluded:
l l
127/ DRBC FEA Part III, p. 2-37. Elsewhere the FEA Comments on the presence of shad in noting the necessity to monitor the proposed intake area for impingement of shad juveniles in excess of expected frequency. The FEA states: "The large number of shad juveniles (64.6 per haul) taken during 1979 sampling across the river from Point Pleasant, at Bryam, N.J. (Lupine, 1980), may mean that the entire Point Pleasant pool area is used as a nursery area . . . ."
FEA Part IV, p. 29. Although the FEA notes the completion of the intake facility will " require a 150 foot long trough to be dredged in the river bottom, from the river bank out to the deepest part of the river to insure a supply of water during periods of low river flow," there is no indication that the dredging would eliminate or impair any spawning or nursery-area for the American shad or other
- fish. Id. at 30.
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The intake poses little threat to g ,.,
the egg st&te of most of the resi- ,1 dent fishes . . . . Most. species '.
develop the capability to resist ,
entrainment or impingement during -
this development stage and are afforded almost complete protection ~
by small-slot profile-wire screens by the time transformation to young is complete. The young and adult stages will be completely protected from entrainment and prolonged impingement unless size and behavior allow intentional penetration of the screen . .. .
A very important factor of intake location is position with respect to areas of important biological activity. The pool in which the intake will be located is a nursery area for American shad and other fishes of interest, but the area is not of unique biological value as a spawning or nursery ground for any species. Additionally, therintake will not block nor prove tui impediment to the upriver and downriver movement of fish.
The use of adjacent, near shore backeddies as temporary holding, areas for American shad will not be disrupted by intake operation because the intake will not be located in the backeddies. 128/ ,
Neither DRBC nor the. Corps foresaw any adverse consequences e
- 129/ ,' #
from blasting ~or dredging, although the Corps willa s o
~. ,
128/ Corps Draft 5 Vi on er.tal Assessment at pp. 3-4 (emphasis adde'dt.. . ' . fr
~
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129/ See DRBC FEA Part'III,.pp. 2-33 to-2-34 and Part-IV, pp. 81-83; Corps Draf t Environm'e ntal Assessment a) p. 5. ,
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@ certainly consider such matters in'its final evaluation.
m j The circumstances as regards consideration of any possible threat to the short-nose sturgeon or its habitat were' fully discussed by the court in the DWEG federal court Jcase. 'The court there approved the arrangement for consider-
_ _; ing new information on the short-nose which became available to DRBC only after it had granted final Section 3.8 approval
$ _/ to the project. The court stated:
The Court has very recently been advised by counsel for DRBC that the National Fisheries Service of the Department of Commerce, for the first time, on or about June 24, 1981,ex-pressed concern about the shortnose sturgeon which is apparently one of the listed endangered species.
In conformity with Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 51536, DRBC consulted with the National Fisheries Service and submitted in 1980 information for review by the National Fisheries Service on the effects of the pro-posed project on aquatic biota and environment. At that time, apparently
~
neither DRBC nor the National Fisheries
. - Service had any information suggesting
~. .
,- the likelihood of any shortnose sturgeon existing in the area of
=' Point Pleasant.
Recently, the National Fisheries
,i Service received a report, apparently
- not confirmed, that during April of
/ 1981, a dozen shortnose sturgeon were I
, . ], captured in a seine net above the r ;' '
._ Delaware River wing dam et Lambert-ville, New Jersey. Thus,fif the re-
. 5 - . . . , , port is accurate, shortnose sturgeon
' +-
'4, may possibly " utilize"' portions of the t Delaware' River in the. vicinity of Point Pleasant.
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. No determination has been made that
' *\ the-proposed project would in any way
[U
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" * '. .. such species if it. utilizes the river
~
-t in the area of the intake facility, or
.*' ~
that_the project would result in the
'cs. ,
-destruction or modification of the habitat of such-species.
The concern expressed by the National
'iN1 ~
Fisheries Service arose by reason of
~
.MK" events occurring several months after
-DRBC action'was-taken, despite DRBC 4 - complying with all statutory and regu-latory requirements. The concern appears y g' <w', ^
t S .
4
"' d,o be primarily truction of theas to thefacility.
intake design andThis con-y C 3 facility is presently being studied by the Corps of Engineers and requires per-
. mit-approval by the Corps of Engineers, as well as final approval by the Execu-y.. tive Director of-DRBC. 130/
V j i Accordingly, the Corps of Engineers has requested to _ information from NWRA..on the short-nose sturgeon to deter-mine whether any adverse impact might occur from the con-
,.I 131/
struction or operation of the intake structure. Ob-viously, the Corps will be in the best position to deter-e mineN all environmental impacts resulting from the intake 130/, Slip op. at 39-41.
131/ In response, NWRA has furnished the Corps with the opinion of its aquatic biology consultant, which stated in letters dated June 29 and August 20, 1981 (copies attached) that as a result of the design of the intake structure and the short-nose sturgeon's size and spawning habits in the vicinity, the potential adverse impact on the population 3, "will be almost non-existent."
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structure.' 'Just'as mere' disagreement among experts is not 132/'
a basis for invalidating.an EIS, Del-AWARE's possible
' disagreement with some'of the' findings by DRBC and the Corps-is 'not justification for overriding the determinations of
.-these agencies by conducting a superfluous review of matters 133/
within each's respective jurisdiction. To the contrary, no-basis has.been advanced to permit the NRC to usurp the functions-of these other agencies, even.if it were legally permitted to do so. Accordingly, this contention should be denied.
V-14. Historical character of Point Pleasant. Arrange-ments have-been made by DRBC and the Corps of. Engineers.for full implementation of the. procedures by which the1 Village of Point Pleasant and adjacent townships would be considered I
for eligibility on the National Register as an historic c
, 132/ Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 290 (D.C. Cir. 1981); South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005, (5th Cir.-1980);
, _ Life of-the-Land v. Brinegar, 485 F.2d 460, 472 (9th Cir.
1973), cert. denied, 416-U.S. 961 (1974); New Hope Community v. HUD, 509 F. Supp. 525, 529 (E . D . N . C . . 19 81) ;
Fayetteville Area Chamber of Commerce it. Volpe, 386 F.
Supp. 572, 57 6 - (E.D.N.C. 1974), aff'd, 515 F.2d 1021 (4th
. Cir.), cert denied, 423 U.S. 912 (1975).
- 133/ It is noteworthy that a number of conditions imposed -
by DRBC in its final Section 3.8 approval were. intended to safeguard against the impacts alleged by Del-AWARE.
See Docket Decision D-65-76 CP (8) , Conditions L, M, N, n W and X. Obviously, practical problems would arise if
-the NRC! sought to impose different conditions as a' basis
.fr- licensing Limerick.
I
.--.-,n.. , e . . . , , , , - - , . ,
-.77 -
district. During-the pendency of the proceedings before DRBC, Pennsylvania.SHPO staff concurred "that the project could proceed once the proper review procedures are followed.
and appropriate mitigation measures instituted"'to avoid
-134/
adverse impacts to the historic character of the area.
Apparently,-plans for. submission of the proposed historic district have not yet been finalized by the SHPO and con-corned jurisdictions ~. . We are advised, however, that on
' April 28, 1981, NWRA, the Corps, the-Pennsylvania Historical Museum Commission, the Pennsylvania Heritage Conservation and Recreation Service, and DRBC met to discuss the proposed 135/
nomination of an historic district.
In any event, the Corps is offering complete cooperation with. State officials under the Act's procedures for sub-mitting the nomination. No reason is given by Del-AWARE to suppose that the Corps will not fulfill its obligations under Section 106 of the Act by obtaining the necessary advice from the Advisory Council on Historic Preservation so as to avoid 134/ See DRBC FEA Part IV, p. 80.
l
- - - -135/ Contrary to the assertion in the contention, eligibility for inclusion in the National Register is not made by'the SHPO, but rather by the Keeper of the National Register.
See, 36 C.F.R. Part 63. The SHPO and Corps would only make the nomination. As explained by DRBC in its FEA, arrange-ments have been made with the-staff of the Corps "to imple-ment the procedures necessary to determine'if a project area is eligible for nomination and inclusion in the National l Register." FEA Part IV, p. 79. This arrangement was con-firmed by a letter dated August 28, 1980,from DRBC to the t District Engineer (copy attached).
l
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-' 78 -
c: or mitigate adverse' impacts upon the. character of any de3ig-nated historic district. 1Again, there is no basis shown for duplicative action by the NRC, and this contention should~be denie'd.
.V-15~. Impact on American shad and short-nose sturgeon.
This-contention has previously been addressed:in substance'in' l response to Contention V-13. Despite Del-AWARE's. flamboyant allegations that misrepresentations were made concerning in-
, take velocity, the Corps has preliminarily found that impinge-t ment of "all but the earliest life stages of fish will be minimized (virtually eliminated)'t and that the "small percentage of water and organisms likely to be withdrawn from the river
- through this intake will not result in biological significant
, 136/
impacts to the fish community." All relevant information will be considered by the Corps in its final permit action. There is no reason why Del-AWARE.cannot, as it apparently is doing, pursue this and similar contentions before the Corps and its proceedings. Nor is there any reason why.the NRC should it-137/
self reconsider the matters. This contention should be denied.
136/ Corps Draft' Environmental Assessment at p. 4-5.
137/ Allegations pertaining to Section 316(b) of the Clean Water Act are discussed in the response to Contention V-20, infra. '
q , - -"
p V-16. Water cuality and adecuacy of water supplies.
These matters go to the Nery heart of DRBC's important responsibilities under its Compact for the reasons discussed above. They go equally to petitioner's negligence in failing to pursue its remedies in the proper forum and its desire to shop for another forum in which admittedly to relitigate the issues decided by DRBC and affirmed by the federal court. The record indicates that DRBC fully considered the impact the Point Pleasant diversion would have upon the Delaware River, Neshaminy and Perkiomen Creeks, and other water resources within the project area.138/ In particular, flow maintenance in the Delaware River necessary to prevent an increase of salt water intrusion and deterioration of I
water quality in the Delaware River Estuary was comprehensively considered by DRBC in its 1973 FEI' l 138/ See generally DRBC FEA Part III, pp. 2-31 to 2-53; Part IV, pp. 45-53.
139/ Water quality standards established by DRBC for the Delaware River Basin, specifically, standards applicable to the Delaware River at Point Pleasant, may be found at page 23 of the DRBC FEIS. The specific limitations imposed upon the use of consumptive water fo Limerick (including the Delaware River, Schuylkill River and Perkiomen Creek) are set forth at pages 29-31 of the FEIS.
Specific reference is made to water quality and consumptive water use at Limerick at pages 34 and 38-39. Indeed, the FEIS concludes that the proposed diversion will stabilize existing fluctuations in the water level of both the North Branch Neshaminy Creek anf the East Branch Perkiomen Creek and that "overall ecological conditions of the creeks will be greatly enhanced as a result of the increased water flow if the water level fluctuations are kept to a minimum." Id. at 35.
-'80f--
e ~
and'the 1973 FES' prepared by;the.AEC Staffcfor i
-Limerick,140/ ~ as -well as Lthe decisions of .the Licensing-p -
-and Appeal Boards.
LThe underlying basis for.these conclusions was the
_ water'all'ocation. plan approved by DRBC in-Docket No.
D-69-210_CP'(March > 29,-1973), in which DRBC established.
the: basic requirement that withdrawals at Point Pleasant
-not? reduce the. flow as measured at the. Trenton _ Gage below-3000 cfs. .other conditions were imposed by DRBC in the-
' issuance of Docket No.-D-69-210 CP (Final) (November 5, 1975), which. granted' final Section 5.8 approval to most of the-components of the Limerick water supply system.
These earlier findings were confirmed in DRBC's recent analysis. DRBC cited a supportive finding by the.
Pennsylvania ~ Department of Environmental Resources in 1978-that "the raw water quality of the' Delaware River, Pine Run and North Branch Neshaminy Creek are all of-140/ Thus, the Staff cited the DRBC conclusion that "it is essential that the seasonal inland penetration of ocean salinity not be permitted to increase significantly." AEC FES at p. 5-3. The Staff approved the conclusions by DRBC that the proposed I diversion would be beneficial to the Neshaminy and l Perkiomen watersheds and not detrimental to the ll Delaware River if certain conditions were observed.
Id. at.5-5. Significantly, in Chapter 8 of its FEIS, the Staff made no findings of any adverse impact upon water quality in the Delaware River of its Estuary and expressly found that " consumptive use of water.for Limerick even at low-flow-periods would have no significant adverse environmental impact'on the water supply in the Basin, and would cause no denials for other , applicants for water for-consumptive uses."' AEC FES at p. 5-6.
).
.~
-L81>-
j N
satis' factory qualityf to: be '.used for water supply. i'141I Contrary 1to Del-AWARE's assertion, DRBC has determined Ethatithe' water. quality of the Delaware River at Point iPleasant is at least as good or better than that of the East Branch Perkiomen Creek.or North Branch Neshaminy.
~
L Creek;142/ - The pendency.of any study by theTCorps of-E7gineers,-which may be necessary to meet-its own particular obligations, is certainly.not a basis for seeking yet a third agency's. views.143/
As to the-~ adequacy-of water supply, the record'again vividly demonstrates; that DRBC's findings are i authoritative and comprehensive.144/ In particular, DRBC i
141/ DRBC.FEA Part IV, p. 50. I 142/ DRBC FEA Part III, p. 2-36. Moreover, DRBC ' stated '
that "[aldverse-impacts on-water quality in the service area would be' minimal because DRBC,.
individual states, and federal agencies would require the project to be operated in compliance:
p with the provisions of the Compact, of State-laws
!- and the Federal Water Pollution Control Act Amendments of 1972." Id. at Part 17, p. 45.
143/ DRBC took the position that it need not await the outcome of pending studies-and negotiations in i preparing its FEA. 'See DRBC FEA Part II at p. 16.
This position was expressly sustained by the district court in Delaware Water Emergency Group, supra, (slip op, at 33-36).
144/ At page 36 of its FEIS, DRBC concluded that the Point Pleasant project wasinecessary to enable ~ Bucks and-Montgomery Counties "to meet-[ water] supply.
demands that can no longer be met via ground water sources." The Point Pleasant' project was deemed the best alternative for meeting:these projected needs..
DRBC FEIS at pp. 40-42. An updated evaluation of-this analysis, including several recent' private and
, -public studies, is summarized in the DRBC FEA Part III,.pp. 2-1 to 2-4.
L
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- observed anlupward
- growth trend, irrespective of f the y , .
2
? Point 1 Pleasant 1 project,-Landideterminedithat the: project
.in1 fact offered .theibest alternative-for controlled 1
.. growth.145/~ .Accordingly,-farEfromfthreatening-available 1 ground water supplies,;the Point' Pleasant [ diversion was.
- found to be: necessary so that Bucks: and Montgomery 1 LCounties:could meet anticipated consumptive use. demands.
There is no basis, therefore,1forithe NRC to.redofany-Water quality or water supplies determinations by DRBC
- nor
- :any. basis-for examining anew:the AEC's analysis of *
- the same matters atz the construction permit' stage.
V-17. Environmental impacts'from'NWRA utilization-7 of the Point Pleasant: diversion. This contention.
erroneously proposes that all-environmental impacts associated with that portion of the Point Pleasant
-diversion necessary to meet NWRA-water supply needs be i
i attributed to Limerick because of a " downsizing" in the
- j. estimate of NWRA's needs. While the figures cited by.
Del-AWARE are not the predicted. supplemental water needs '
determined by DRBC, 4! it is irrelevant as a matter of'
- j. law what proportionate use.of the diversion will be made by Applicant and.NWRA. - All environmental impacts as-
.sociated with each. component of the proiect, whether used I i'
i
- 145/ Id. at p. 2-48. .
l'46/ Id. at p. 2-3 (Table-2-3).
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' - - 83'-
jointlyEor. solely,147/E have been fully evaluated by'DRBC.
- ItlisLthereforeibesideSthe point whether one aspectiof'
~
- the project would-have been pursued ~"but for" the other.
Moreover, the NRC'has no legal bas'is to analyze i
environmentalJimpacts which arise,from'the NWRA~
o c'mponents of-the project,.which are1not subject to its authority? There is certainly no need for the NRC to
- become' involved in Neshaminy water supply, issues.148/'
~ V-18. ' Induced growth in Bucks County. For the reasons-stated in response to Contention V-17,-
environmental impacts associated wtih NWRA's utilization i
of the Point ^ Pleasant diversion should not be considered by the NRC. Such impacts are not attributable to the licensing of Limerick, but rather to final agency approval by DRBC in Docket No. D-65-76 CP (8) .
Moreover, the possibility of induced growth as a
! result of this project has been fully addressed by DRBC.
I As noted in response to Contention V-16, the adequacy of existing water supplies for Bucks and Montgomery Counties
, was carefully examined by DRBC in determining that the 147/ See id. at Part II, p. 1.
-148/ Also, as the Court in Delaware Water Emergency Group-l aptly observed with reference to the reduction-in f the withdrawal at Point Pleasant from 150 mgd'to 95 mgd,-"[1]ogic would seem-to' point to a lesseningaof any adverse environmental impacts by such reduction in size'and capacity." '(Slip op. at 30) .- Thus, even1though NWRA' has "downscaled" its utilization, -
it-is-hard to see what.further environmental analysis-is' required.
-l
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---84'-
project would be.necessaryLto meet projected water supply needs.for those communities.I49I~ In particular, DRBC found: " Bucks and Montgomery Counties will likely continue'to experience growth and development with or without the Neshaminy Water Supply System.150/-
The allegation that municipalities will be unable to f
enforce local zening and planning policies and ordinances is'not a litigable issue. It has been held that local zoning authority gives adequate assurance that any adverse environmental ~ effects will not be greater than local residents desire as long as the proposed project does not create a distinctive difference in the type of land use already subject to local control.
Maryland-National Capital Park & Planning Commission v.
United States Postal Service, 487'F.2d 1029, 1036 (D.C.
Cir. 1973).
Further, there is no basis alleged for finding any nexus between-the cost of the NWRA components of the project and the possibility of induced growth or any other. impact. There is also no basis for finding that there was ever a " larger proposal" for NWRA. While the-projected consumptive use has been considerably reduced, the DRBC docket decisions show that the basic components 149/ See'pages -
, supra.
150/ DRBC FEA Part III, pp. 2-48 to 2-49. Further analysis of possible growth inducement is discussed at Part IV, pp. 71-75.
.85 -
i of the project have remained: unchanged. In any-bvent, l
'the' contention demonstrates no connection whatsoever between! alleged' changes'and adverse environmental
-consequences. As noted'before, any reduction in the size of the diversion would logically result in a concommitant decrease in environmental impacts.151/
V-19. Alternatives to the diversion of water for Limerick. Del-AWARE's allegation that consideration was not given to a storage facility on the Schuylkill River is simply erroneous. DRBC fully considered this alternative and rejected it as insufficient to meet the needs for Limerick and other anticipated needs for population growth and industrial expansion within the Delaware _ River Basin. ! In 1980, DRBC considered the l matter anew and determined that a reservoir in the Schuylkill River Basin "would have a greater environmental impact, larger land use, and higher cost I
l than the proposed pipeline system."153/
Dry cooling towers were considered as an alter.iative by the AEC in its 1973 FES for Limerick, which stated:
! Dry cooling towers are not generally considered to be practical for use in 151/ See page , supra.
152/ DRBC FEIS at p. 41.
153/ DRBC FEA Part III, p. 2-31. CEQ stated that the supplemental water supply would be determined by D RBC . See CEQ lotter of March 23, 1973, discussed at page __, supra. The App,eal Board approved this approach in ALAB-262, 1 NRC at 204-05.
m- .
stations-withithe power levels! proposed
.for Limerick 1because thefresulting high-
-back-pressure'at the turbine exhaust
_ precludes efficient operation with available-turbines. 154/--
Based on information from1 EPA,_DRBC likewise noted that
. dry. cooling towers would be " inefficient and prohibitively expensive" for-Limerick.155/ Cooling tower and supplemental: water supply alternatives were.also examined.by:the _ Limerick Licensing Board.1 6/ As the Perry Board recognized in connection with the "need for power"-issue, changes in alternatives at the operating license stage."must be sufficiently extensive to offset the environmental and economic costs of construction, which have been authorized and has become a sunk cost."157/ The general allegation of a change in economics,citself. totally irrelevant, falls far short of the necessary showing to justify relitigation of these matters.158/ This contention should be denied.
154/ AEC FES at p. 11-1.
155/'DRBC FEA Part IV, p. 98.
156/ Limerick, 7 AEC at 1121, 1130. On appeal, the Appeal Board ruled that designation of a supplemental reservoir could be properly deferred until further action had been taken by DRBC.
157/ Cleveland Electric Illuminating Company, (Perry Nuclear Power Plant, Units 1 & 2), Docket Nos.
50-440 and 50-441 OL, " Memorandum and Order" (September 9, 1981) (slip op. at 2) .
158/ See generally Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974). *
.87 -
V-20 and 21. Section 316(b) discharge cermit and Section 401 certification for Limerick. These two contentions are discussed jointly because they are based on the common fallacy that the licensing actions of other agencies necessary for the operation of Limerick may be injected as issues in the NRC proceeding. What petitioner avers about the need for-permits is basically correct, but completely irrelevant. Presumably, it wishes this Board to conduct hearings on matters in which two other agencies have exclusive jurisdiction.159/
Del-AWARE focuses upon the provisions of Section 316(b) of the Clean Water Act, 33 U.S.C. S1326 (b) , that any effluent limitation standards established under Sections 301 and 306 require that the location, design, construction and capacity of cooling water intake structures reflect the "best technology available" for minimizing adverse environmental impact.
These standards will be applied to Limerick with respect to the issuance of a National Pollutant Discharge Elimination System (" NPDES") permit under Section 402 of the Clean Water Act, 33 U.S.C. S1342, for discharges into the Schuylkill River. This permit will be issued by PaDER, which will also be responsible for issuance of a certification under Section 401 of the Clean Water Act, 159/ In any event, the NRC may not delay its hearings pending review of other matters in other agencies.
~
- 33 U.S.C.zS'1341. 60/ The: issuance of these permits-is-necessary for the operation of the Limerick facility, buti the' fact 1that-they must be_ issued is not a litigable contention lbefore the>NRC. Both the Clean-Water Act and
.the Commission's precedents expressly exclude consideration of such matters by other agencies such-as the NRC.
In 1972, when Congress. enacted the Water Pollution Control Act Amendments, it made_ clear that the review-conducted by.the various federal-agencie's under NEPA
.would not extend to determinations made by EPA or states to whom responsibility had been delegated in issuing certifications under Section 402. Thus, Section 511 (c) (2) of the Act, 33 U.S.C. 51371 (c) (2 ) , states:
Nothing in the National En-vironmental Policy Act of 1969 shall be deemed to -
(A) authorize any Federal Agency authorized to li-cense or permit the conduct of any activity which may result in the discharge of a pollutant into the navi-gable waters to review any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certifi-cation under section 1341-of this title; or i
160/ As discussed above, the Army Corps of Engineers is in the process.of issuing a permit under Section 10
-of the Rivers and Harbors Appropriations Act of 1899 i for the construction of the, Point Pleasant intake
-structure.
E9-(B) authorize any such agency to impose, as a condition pre-cedent to the issuance of any license or permit, any effluent limitati)n other than any such limitation established pursuant to this chapter.
The Commission's understanding of this provision is set forth in a Memorandum of Understanding with EPA which states, inter alia, that "if and to the extent that there are applicable limitations or other requirements promulgated or imposed pursuant to FWPCA, different limitations or requirements will not be imposed by NRC pursuant to NEPA as a condition to any permit or license."
The NRC has had numerous occasions to reiterate that it would not review such actions by EPA or the states.
In the Seabrook proceeding, the Commission reviewed a situation in which EPA had not taken final actic' un the plant's cooling system prior to the Appeal Board's review of an initial decision authorizing the issuance of construction permits. After stating that EPA might ultimately authorize the once-through cooling system approved by the Licensing Board only with significant modifications or require use of a closed-cycle system, the Commission unambiguously stated EPA's primacy in 161/ Second Memorandum of Understanding, Appendix A, 33.
40 Fed. Reg. 60115, 60120 (December 31, 1975) (emphasis added) . An exception is made as to limitations or other requir,ements of state law imposed under authority reserved to the states by Section 510 of the Act, 33 U.S.C. S1370.
determining effluent limits under Section'402:
l Finally, the EPA _might provide the
~
applicant could.use_only a close-cycle system. Pursuant to Section l Sil(c) (2) of the Federal Water Pollution Centrol Act Amendments of 1972, 33 U. S.C. 1371 (c) (2) , the Commission must accepe EPA's deter-mination on effluent limitations.
As a practical matter, then, the Commission must either license or not license an EPA-approved cooling system but cennot require it to be modified. Accordingly, whatever decision EPA reaches will be binding on the Licensing Board. 162/
Thereafter, the Commission approved the Appeal Board's analysis of the Section 401 certification issued by the State of Now Hampshire as follows:
The Appeal Board correctly noted that Section 511(c) (2) (A) of the Water Pollution Control Act Amend-ments of 1972 prevents the Commis-sion from reviewing the " adequacy" of a 401 certificate. 163/
The decision of-the Appeal Board below in Seabrook 164/ ives an instructive general overview of the respective roles of the NRC and EPA (including states delegated EPA's responsibility). In explaining the purpose of Section 511(c) (2) , the Appeal Board stated that the legislative history indicated a desire by 162/ Public Service Company of New Hampshire (Seabrosk Station, Units 1 and 2), CLI-77-8, 5 NRC 503, S43 (1977) (emphasis added) .
163/ 5 NRC at 546.
164/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39, 48-54 (1977).
c i ;
- 91 H l
' Congress to avoid duplication in! reviewing' water l
pollution control-criteria to which a facility's cooling- l system would be heldi In essence, the " Commission still- a must consider any; adverse environmental impact that would, accrue from operation.of the facility in compliance with
-EPA-imposed' standards; but it cannot go behind either those standards or:the determination'by EPA or.'the state that~the facility would' comply with them."165/
~
-The Appeal Board concluded that, under Section 511(c) (2)-(A) ,
"this-Commission is prohibited from reviewing 'the adequacy' of a 401 certificate."166/
This basic principle was affirmed by the Commission' in subsequent aspects of the Seabrook proceeding. At one point, it reviewed a determination by the Appeal Board to give binding effect to certain findings by EPA made pursuant to Section 316 of_the Act that the once-through cooling system for Seabrook was adequate to ass'ure protection to marine biota. The Commission stated:
The narrow question presented is whether the Commission may accept and use without independent inquiry EPA's determination of the magnitude of the marine environmental impacts from the cooling system in striking an overall cost-benefit balance for the facility. Our conclusion is that we may and in this case should. The alternative suggested by the inter-
-venors would be for the Commission to allow relitigation of an~ issue
-165/ Id. at 52.
166/.Id. at 56.
_7 r
-- 92:-
alceedy ventilated before the EPA,
-poss;5ty leading- to different
. determinations concerning aquatic impacts, evea though we_are bound to accept the cooling system pre-scribed by EPA with which those impacts are_ associated. We can-not'believe that Congress contem-
. plated such a procedure. 167/
In Indian Point, the Commission recently reviewed a decision of the Appeal Board below sua sponte to clarify
-the status of license conditions in light of a settlement agreement terminating an EPA proceeding upon agreement to permit continued use of open-cycle cooling at the Indian Point units. Once the EPA proceeding had been settled, the_ licensee moved the. Commission for an order deleting from its operating license those conditions it deemed inconsistent with the EPA settlement agreement. One of the intervenors suggested that EPA's action could not bind the Commission because the NRC license conditions were imposed prior to the settlement agreement. The Commission rejected this rationale, stating:
We cannot accept this suggestion, since it is patent to us that this agency is bound to follow final EPA decisions on water quality impacts, irrespective of whether they occur 167/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 23-24
.(1978).
l l
l
^
I l
Sn ' _
L93L-+ ,
-beforefor afterJNRC decisions on the ~
1same subject ^. 168/-
Thefsamesresultuwas1 reached by'-the Appeal. Board in'; 'j
~the: Yellow Creek' proceeding.: A dispute arots between the
~
. Staff;and licensee--as to the-respective. responsibilities
.ofotheJNRC"and EPA 3in monitoring water.. quality
. maintenance. The' Appeal Board 1noted that the authority:
given EPALunder/Section.402: included the-imposition of
~
suchomonitoring conditions. .The Staff, however,fwas
~ dissatisfied with'the' NPDES ~.permitLmonitoring conditions set by EPA'and sought' additional information for assessing theLaffect<of the plant's operations'on'the ecology of affected waters. Refusing to do so,_the
-Appeal Board sustained-the position of the licensee that'
' the language of Section Sil(c) (2) of the Act and its legislative history negate any inference that the NRC.may superimpose under NEPA stricter conditions for monitoring-compliance with effluent limitations. The Appeal Board stated:
This Commission may not incorporate in licenses.to build nuclear power plants conditions which, in actuality,.
call for a " review" of the adequacy-of water quality requirements previously established by EPA. There can be no 168/ Id. at 3 (emphasis added). Moreover, the Commission Eas expressly " rejected the claim that final
. decisions of the. EPA ~cannot.be relied upon until-after judicial" review is complete." Public Service Company of'New Hampshire ~(Seabrook Station, Units 1 and 2), CLI-78-17, 8 NRC 179, 180 (1978). 'This negates Del-AWARE's claim to . the' contrary: as to DRBC. See Del-AWARE Memora'ndum at 29.
m -
-94 J--
disputeithat the staff's proposed license conditions would do_ precisely.
that. As-we described earlier, they
~
'would give the staff discretion to
' demand that TVA perform water monitor-
_ing operations at Yellow Creek above and beyond those specified by the
. EPA _ permit allowing the discharges.
In short, the staff' contemplates doing-nothing less.than judging the adequacy of EPA's monitoring require-ments and imposing its own if it deems them unsatisfactory. But under Section
-402(a) of the Water Act, it :bs EPA ' s duty, not the staff's, to decide what discharges are permissible and to
" prescribe conditions . . . to assure compliance . . . including conditions on data and information collection (and) reporting." If the legislative
. history of Section 511(c) (2)0 makes anything clear, it is that "second-guessing" of this kind is forbidden. 169/
See also Carolina Power-and Light Company (H.B. Robinson, Unit No. 2), ALAB-569, 10 NRC 557, 560-62-(1979);
Consumers Power Company (Palisades Nuclear Plant),
LBP-79-20, 10 NRC 108, 124 (1978); Philadelphia Electric Company (Peach Lottom Atomic Power Station, Unit 3),
ALAB-532, 9 NRC 279, 282 (1979); Public Service Company of Indiana (Marble Hill Nuclear Generating Plant, Units 1 and 2), LBP-77-52, 6 NRC 294, 338 (1977).
169/ Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 NRC 702, 713 (1978) (emphasis added) . The Appeal Board further expressed the view that the same result would have been reached if a state, rather than EPA, had been responsible for issuance of the NPDES permit. Id.
at 714-15.
9
^^
VI. Quality Assurance / Control The contention is.merely a. generalized attack on Applicant's quality assurance program during the construction phase. The only basis provided is a list of correspondence between the-Applicant and the NRC's Office of Inspection and Enforcement ("I&E"), the latest'of' which is1over three years old and most of which is 4-5 years old, primarily involving items identified by the f Applicant's own Quality Assurance program.
l .There is no demonstration that the' Applicant's resolution and disposition of any matter raised by I&E
'has.been less than completely satisfactory. There is absolutely no assertion that these matters are presently unresolved. There is not even an attempt at a 1
- demonstration that these matters are other than isolated minor events.
f Finally,-there is no showing as to how any of the
! enumerated generalized subject areas " increases the risk l
of an accident." This contention should be denied.
i VII. Constitution / Civil Liberties VII-1. Infringement of civil liberties. This contention asserts that measures taken ;o protect against
! sabotage or the theft of nuclear materials "are likely" to infringe upon the civil liberties of Applicant's employees. At the outset, it should be noted that this is a generic matter not involving Limerick specifically.
., e
- 96M -
Tio;asser' tion 11simade~that Applicant's physicalEprotection-system will~not comply,with.10 C~F.R. Part 731or,
- conversely,iwill exceed'the security measures authorized
.and required by those provisions. As such, the contention!is a challenge tolthe validity'and/or constitutionality of Part.73, which may not.be heard by this Licensing Board.170/
Moreover, the contention fails to state any legal-source of-the putative'" civil liberties" of Applicant's employees. No showing is made why the private contractual-relationship between Applicant and its employees is a litigable matter, particularly for a petitioner whose-standing purports to derive from inmates of a penal institution and from individuals living in the City of Philadelphia. Presumably, such liberties are derived from the United States Constitution, which applies to governmental actions but not those of private entities. Again, therefore, any litigation of " civil liberties" would necessarily involve a challenge to the legitimacy of NRC requirements under Part 73.
The contention states no basis for litigation of the issue by petitioner, none of whose members would be subject to the security measures discussed in the 170/ Metropolitan Edison Company (Three Mile Island Nuclear Power Station, Unit No. 2) , ALAB-456, 7 NRC 63, 67 n.3 (1978); Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79/ 89' (1974).
L97 -
~
. contention'. 1A Finally,_the allegations which form the" basis"ofTthe contention are entirely too conjectural and' vaguesto justify itsLacceptance.1 In denying"a.
petition seeking the revocation of allinuclear. plant' licenses,_the Commission recently took the' position that reactor operation isinot proscribed by the-Fifth and Fourteenth Amendments.1 3/
~
VII-2. Constitutional Rights. As noted in the discussion above, the constitutional prohibitions invoked are. applicable only to governmental entities. No legal ~
basis can be shown for litigating such' issues with regard to any actions by Applicant. Further, any claim that the-licensing actions of the NRC have or would deny due 171/'As the Supreme Court stated in Warth v. Seldin, 422 U.S. 490, 499f(1975), a party " generally must assert his own legal rights and interests, and cannot' rest his claim to relief on the legal rights cn interests of third paaties." In Moose. Lodge No. 107 v. Irvis, 407~U.S. 163, 166 (1972), the Court similarly stated that.a party "has standing to seek redress for injuries done to him, but may-not seek redress for injuries done to others." The contention is therefore an improper attempt'to litigate the
- nonparticularized interests of the general public.
See Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977); Nuclear Engineering Companv, Inc.,
(Sheffield, Illinois-Low-Level-Radioactive Waste Disposal Site), ALA3-473, 7 NRC 737, 739, 741
.(1978).
172/ While Applicant denies the-matters alleged, this Licensing Board certainly does not have jurisdiction to investigate alleged illegal surveillance for activities related to other proceedings or facilities.
173/ Denial of Petition for Revoking Nuclear Plant Licenses, 46 Fed. Reg. 3957'3, 39579 (August 4, 1981).
t process 1cr other rights by imposing hazards to health and well being also necessarily involves a challenge to the validity of safety-requirements of the Act and-the NRC re'gulations.- Suc'h' generic challenges are-an impermissible attack upon the Act and these regulations and~are not litigable in adjudicatory proceedings.174/
~
The contention also'provides no basis for litigating the disclosure of environmental. impacts, i.e., " hazards,"
and " choice of alternatives." These matters were fully considered at-the construction permit stage in the AEC FES, and no basis for.relitigating them has been shown.
There is.also no allegation that the discussion in Applicant's EROL fails to make adequate disclosure of such matters.
VIII. Emergency Planning l Introduction The Limerick FSAR contains the following response to L
an NRC questica relating to emergency planning:
The Limerick Generating Station Emergency Plan, Appendix'I, provides a comparison of the Emergency Plan with the criteria of NUREG-0654 (FEMA-REP-1) as issued for
! interim use and comment. In the second quarter of 1982, a revision of the Emergency Plan will be submitted to update Appendix I to incorporate Revision 1 to NUREG-0654, to add a comparison of the Plan-with 10 C.F.R. 50, Appendix E, and to update the body.
of the Emergency Plan to provide im-plementation of the revised require-ments. It is also anticipated that l
174/ See p. 96, supra.
= , ,
~.g
~
- :99l- l 4 .
~
des'ign Linformationf wil'l? bel available -
~
4 so.thatLthe description cf the Technical Support center:and
-Emergency' Operations Facility can be expandedrin response to NUREG-0696.'175/- .
- , The Limerick-FSAR_was being: written:during'a
-iransitinal: stage in whichLnew emergency plan requirements were' continually.being developed:and-t refined. As previously; discussed, in accordance.with NRC practice,Lthis information will be submitted during the.
course:of the operating license re'riew. 'Therefore,
. contentions VIII-1, VIII-2, VIII-5,.VIII-6, VIII-7, '
VIII-8, VIII-9, VIII-12, VIII-13, VIII-14, VIII-17, VIII-18, VIII-19', VIII-20, VIII-21, VIII-23, VIII-24, VIII-25,1VIII-26, VIII-27, VIII-28, VIII-29, VIII-30 and-VII-31 are premature. Accordingly, these contentions.
should be denied for this reason.. Some of the emergency .
planning contentions are in whole or in part otherwise 7
deficient because of the position the petitioner's take vis-a-vis NRC emergency planning regulations and i requirements.'Other specific deficiencies in the
{i- . emergency. planning contentions are discussed below..
l VIII-3. Evacuation beyond a 10-mile radius. This contention constitutes an impermissible attack upon 10-C.F.R. S50.47 (c).(2) , which sets the 10-mile standard for
, the plume Emergency Planning Zone ("EPZ"). Other U
licensing-boards have struck'down attempts to 7
1
- j. 175/JFSAR Volume.16. S RAI ( 3 ) -1. - l
. - _ = .
- ,_ -_, , . . ~ - - _ . _ . . _ . - __ . - . . . __ _. .
i
- 100 -
e significantly expand'the 10-mile EPZ as suggested by petitioners.176/ jyacuation hypotheses for other purposes are irrelevant to the Applicant's responsibility for emergency planning under the regulations.
VIII-4. Evacuation. This contention is entirely lacking in specificity and factual basis. 'It cites no alleged deficiency in the Applicant's Emergency Plan. If anything, it constitutes an impermissible attack upon the Commission's regulations and should be denied.
VIII-6. Evacuation time study. This contention fails to establish any basis for an assertion of a deficiency in the evacuation time study. The evacuation time study was submitted in response to a NRC request and was responsive to the format requested by the NRC. For example, the NRC requested evacuation time studies for a ten-mile radius of each facility. While the plume EPA for Limerick may have to be adjusted and refined as part of the development of the emergency plan, this fact does not reflect back on the evacuation time study. While argumentative, the contention does not provide any specific basis for the assertion that the assumptions and methodology used by Applicant are deficient so as to 176/ South Carolina Electric and Gas Company (Virgil C.
Summer Nuclear Station, Unit 1), Docket No. 50-395,
" Memorandum and Order" (September 14, 1981) (slip opinion-at 5). See also Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2.and 3), Docket Nos. 50-361 and 50-362 OL,
" Order" (September 14, 1981') (slip opinion at 9-10) .
w__- _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
~
~ ' : . QW.? '
^ ~
Y c- 101 -=
?SN "1
d..r,.'
3 r -
significantly affectLthe c indicated evacuation times such .
Las'to make the studyfinadequate for its intended purpose. . .
The:purposeiof such.a' study is to assist planners in "l their decision-making under a number of circumstances.
~~
No deficiency in' meeting this_ requirement has,been_shown.
_VIII-8. Administration of potassium iodide. There is no federal requirement that an emergency plan provide &
for administration of potassium iodide (KI). The-general distribution of KI to the~public is not required by-NUREG-0654.1 / State decision to use KI and its-procedures for distribution and use are therefore beyond the matters which should be considered at this. hearing.
The administration of KI to the public is a_ matter of individual state determination.- The reference'to the FDA publication'does not reflect an NRC requirement. In any event, petitioners have not shown anything to indicate the reasonable plan cannot be implemented by the State and counties. This contention should be denied.
VIII-10. Evacuation of State Correctional Institution' at Graterford. This contention is clearly-deficient in specificity and bases. No basis is given for the assertion thaty daylight evacuation will pose _any threat to the health and safety of Graterford inmates, if 177/ As petitioners recognize, NUREG-0654, as incorporated both in 10 C.F.R. 550.47 and Appendix -
.E, comprehensively describes the require _ planning .
basis for radiological emergencies.
1
- y
q;-- ,
[p3_:,ge N , - 102 -
. jfy";-N DI:-
- F- ; '?
n . it ?were :necessary ' at? all. NorEis there any basis shown-
'e 'ifor1 challenging-the correctness of information in the
'p.- " .s r y,' emergency. plan concerning the availability of buses.
VIII-ll.- Emergency planning for the Valley Forge
- National Historic Park and-the King of Prussia area. As
~
' indicated by reference to' Emergency Plan Figure C-4,
. Valley Forge-State Park lies beyond the 10-mile EPZ for which evacuation consideration might be necessary under the plan and regulations.178/ The contention
, acknowledges that King of Prussia is also beyond that
- distance. For this reason, the contention fails to e ' allege sufficient reasons under the NRC Rules and Regulations why this entire area must be included within
,the plume EPZ.
VIII-13 and VIII-17. Technical details for 1
3 implementation of emergency plan functions. Each of these contentions is, in essence, an observation that 1
further definition or refinement is necessary in the Limerick Emergency Plan as it now stards. As discussed 1
e above, it is fully recognized under the Commission rules
- s.
i
_ , and procedures for approving such plans that further
- refinement will be necessary. A sentence-by-sentence comparison with NUREG-0654 is by no means a statement of 1 . ,
! a valid contention under these circumstances. Analyzing these minutiae at this time for the purpose of attempting to determine any possible differences would not be 178/ See p. , supra.
~
- e e w -w-
r >
- 103 -
helpful in developing litigable issues. These contentions should all be denied.
VIII-15. Electromagnetic pulse. This contention is inadmissible for the reasons given in response te 0
Contention I-49.179/ Additionally, NUREG-0654 states no design requirements for the licensee's notification system.180/ The contention is wholly speculative and should be denied, t
VIII-16. Use of telephones. The basis of this contention is unclear, but it is, in any event, invalid.
Section 5.2.1.1 of the Limerick Emergency Plan clearly states that the Shift Superintendent or Shift Supervisor are on rotating duty, 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day, and have full authority for the declaration of emergency conditions while acting in the capacity of Interim Emergency Director. The confidentiality of the phone numbers of off-site management is required by the NRC in order to avoid the possibility of inadvertent confusion or deliberate efforts to frustrate an emergency response.
See letter from Director, Division of Licensing, Office of Nuclear Reactor Regulation, dated July 9, 1981, to all Part 50 licensees applicants (copy attached).
V-III-19. Availability to state of meteorological data processing interconnections. Applicant has responded to this contention above, but notes herein the 179/ See p. 20, supra.
L
, 180/ NUREG-0654 at p. 45.
- 104 -
invalidity of the particular allegation that the State must have available " suitable meterological data processing interconnections which permit independent analysis by the Commonwealth of Pennsylvania."
NUREG-0654 requires that "all systems produce meteorological data and effluent transport and diffusion estimates at sites with operating nuclear power plants shall have the capability of being remotely interrogated." The information, however, will be furnished to the Emergency Operations Facility, where the information will be furnished, as needed, to State and local authorities, who are present at that facility.
There is no other requirement for transmission of meteorological data to the Commonwealth of Pennsylvania for independent evaluation.
VIII-22. Protective actions for surface water.
This contention states that "it is not possible" to develop necessary protective actions for surface water for the City of Philadelphia. As such, the contention does not state any deficiency in the Limerick Emergency Plan, but rather constitutes an implicit attack upon the regulations, since it 1.ust be assumed that the Commissioners did not intend to adopt emergency planning requirements which cannot be effectuated. Obviously, the populace in many areas of various nuclear power
- 105 -
facilities throughout the United States utilize surface water which could, to some degree, theoretically become contaminated as a result of hypothetical radiological releases.
1 l
l l
- 106'-
Contentions of Environmental Coalition on Nuclear Power Preliminarily,-.it11s noted dhat the filing of .conten-tions by Environmental Coalition on Nuclear Power ("ECNP")
is untimely and otherwise' fails to comply with the. orders of the~ Licensing Board. The contentions were served on November 22, 1981. Initially, the' Board set a-deadline of November 17, 1981 for the receipt of. contentions from petitioners, who were " directed to confer with each other -
and_use their best efforts to coordinate the filing of contentions," including a joint statement of contentions to 181/
the fullest extent possible. . Subsequently, the Board modified its order'to require that a joint statement of contentions be filed so that'it be recsived by NovemberL24,
-1981 by the Board, NRC Staff counsel and Washington, D.C..
counsel for the Applicant. l The extension of one week with respect to the joint filing was granted in recognition of the special scheduling problems asserted by LEA as lead coordinator. The Board specifically stated that it did not find good cause for extending the deadline for the filing of contentions by individual petitioners and therefore ruled that petitioners 181/ Memorandum and; Order at p. 3 (October 14, 1981).-
i.i..,...,...... . . . . . . . . ..
- 107 - ,
"who do not take the initiative to coordinate their conten-tions through LEA as lead coordinator must comply with the November 17 date for receipt of contentions as set forth in
.182/
our prior order."
Further, the Licensing Board specifically denied a request from ECNP and others for an extension of time to file contentions, noting that these petitioners had been on notice since publication of the notice of opportunity for hearing on August 21, 1981 that they must begin to prepare contentions and that the FSAR and EROL were available for inspection in Pottstown, Pennsylvania and Washington, D.C.
Nonetheless, ECNP's contentions were not served until November 22, 1981 by deposit in the U.S. mail and received by counsel for the Applicant on November 24, 1981, a full week after the deadline set by the Board.
ECNP's disregard of the Board's schedule, even when its request for an extension of time was expressly denied, 183/
should not be tolerated. For all of ECNP's complaints 182/ " Memorandum and Order Adjusting Schedule" at p. 3 (November 9, 1981).
183/ Applicant's position as to such attempts by parties to grant themselves unilaterally extensions of time is fully set forth in " Applicant's Answer to Amendment to CEPA's Petition to Intervene," served November 30, 1981,.and is incorporated herein by reference in order to avoid unnecessarily redundant presentation. It must be emphasized that such conduct by ECNP is not an (Footnote 183/ continuted on next page)
- 108 -
about the fairness of the procedures established by the Board, the fact is that the only two contentions filed by ECNP relate to generic issues which have long been pending consideration before the Commission and which are utterly unrelated to the Limerick application.
ECNP has therefore failed to show good cause for its lateness and has altogether failed to address the factors to be considered for late contentions under 10 C.F.R. 52.714 184/
(a) (1) (1)-(v) . Accordingly, its contentions should be denied.
183/ (continued)
, isolated event. For example, in Pennsylvania Power and l Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 328, 340 (1980), the Board found that ECNP's filings " evidence a belief that a public interest litigant with limited finances may dis- l regard key provisions of the Rules of Practice," which
" stemmed in larger measure from its erroneous ideas about l an intervenor's role and obligations in NRC proceedings - l and the fact that its representatives took on far more e cases than they could reasonably handle."
184/ See generally Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-624, 12 NRC 680, 682 (1980); Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3) , ALAB-615, 12 NRC 350, 352-53 (1980); Puget Sound Power and Light Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-559, 10 NRC 162, 171-73 (1979); Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-531, 6 NRC 460 (1977); Nuclear Fuel Services, Inc, West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975); Metropolitan Edison Company (Three Mile Island Nuclea "tation, Unit 2), ALAB-384, 5 NRC 612, 615 (1977).
Inexcusably late contentions were rejected in Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), Docket No. 50-466 CP, " Order" (September 24, 1979);
Houston Lighting and Power Company (Allens Creek Nuclear Generating 2. Stations.uUnit 1)., tDocket ,No. 50-466 CP, " Order" (July 22, 1981); Pennsylvania _ Power & Light Company (Sus-quehanna Steam Electric Station, Units 1 and 2), Docket Nos.
50-387 and 50-388 OL, " Memorandum and Order on Pending Motions," (September 23, 1981).
- 109 - .
Even if the contentions raised by ECNP are not rejected as untimely, they should be denied for the reasons discussed below.
- 1. Health affects of Radon-222. ECNP contends that NEPA requires consideration of the " total health affects resulting from the emanation of radioactive radon gas l associated with the mining and milling of uranium and mill l tailings piles required to produce the fuel to operate the l 185/
Limerick Generating Station." As noted by petitioner, however, this very question has been the subject of an on-going adjudicatory proceeding before the Atomic Safety and Licensing Appeal Board in a number of consolidated cases in which ECNP is a party.
The basis for the special procedures adopted by the Appeal Board for considering the proper value to be assigned to the emissions of Radon-222 in Table S-3, 10 C.F.R. Part 51 is described in Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-480, 7 NRC 796 (1978). Essentially, the consolidated proceeding initially involved 17 individual cases which were pending before the Appeal Board when the Commission amended Table 185/ Absolutely nothing has been proffered by Petitioner as to any special consideration of Radon-222 for Limerick.
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S-3 on April _11, 1978 to delete the value then assigned to Radon-222 emissions.
As noted by the Appeal Board in ALAB-480, treatment of Radon-222 releases for the purpose of evaluating environ-mental impacts under NEPA "is beyond dispute a truly generic 186/
issue." The consolidated proceedings have now wended their way through several stages. As noted in ALAB-480, the parties in the consolidated cases were permitted an oppor-tunity "to supplement, contradict, or object to" the basic 187/
evidentiary record established in the Perkins case.
Contentions were submitted and the Appeal Board selected five cases in which intervenors were actively participating 188/
as a basis for proceeding. Motions for summary disposi-tion were filed by the Staff and Applicants, which the Appeal Board granted in part but denied as to deficiencies 189/
in the Perkins record. A 3-day evidentiary hearing was held, in which the ECNP representative, Dr. Chauncey Kepford, cross-examined witnesses and testified extensively. In ALAB-640 the Appeal Board definitely determined the magnitude of 186/ 7 NRC at 803. As the Appeal Board noted, the same obser-vation was made by Judge Friendly in Ecology Action v.
AEC, 492 F.2d 998, 1002 (2d Cir. 1974). Id. n. 7.
187/ Peach Bottom, ALAB-480, 7 NRC at 805. See Duke Pcwer
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Company (Perkins Nuclear Station, Units 1, 2 and 3) LBP-78-25, 8 NRC 87 (1978).
188/ See Peach Bottom ALAB-540, 9 NRC 428 (1979).
189/ See Peach Bottom, ALAB-562, 10 NRC 437 (1979).
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' Radon-222-emissions-in the mining and milling of uranium.
Subsequently, in ALAB-654, the Appeal Board noted that "the time ' has' arrived, to provide the intervenors with their
~
opportunity--to" demonstrate, if.they-can, that radon: emissions.
in (the magnitude' determined in ALAB-640] vill produce a;sub-
-stantial enough incremental environmental effect both (1) to require consideration in the NEPA cost / benefit balance for each_ facility; and (2) to tip that balance against planti 191/
operation." The Appeal Board therefore ruled that inter-venors must shoulder the burden of coming forward with evidence to demonstrate the existence of a genuine issue of material fact respecting the health effects issues they have raised.
The Appeal Board noted the expert testimony in Perkins that.
the additional Radon-222 resulting from the milling and mining phases of the uranium fuel cycle makes a negligible contribution to background radiation and is consequently 190/ Peach Bottom, ALAB-640, 13 NRC 487 (1981). It_is noted that in the interim, the NRC Staff issued NUREG-0757,
" Radon Releases From Uranium Mining and Milling and Their Calculated Health Effects" (February 1981). NUREG-0757 contained radon release estimates based on the evidence in the record before the Appeal Board in the consolidated cases as well as in NUREG-0706 " Final Generic Envirormental Impact Statement on. Uranium Milling" (September 1980) .
-191/ Peach Bottom, ALAB-634 _(September 11,1981) (slip op.
at 4).
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f 192/
{ de minimus.: 'The preliminary showing required-by ALA3- _
654 is now due'(following a 30-day extension requested by' 193/
ECNP's representative on this case) on December 10, 1981.
As noted by the Appeal Board in ALAB-640, the consoli- J dated. proceedings were an attempc "to fashion feasible and
- fair procedures for resolving the generic radon issue with-out holding. separate, repetitive trials in a large number
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194/
of licensing proceedings." The same considerations which compel a rejection of generic issues in individual-licensing proceedings when the contention is the subject of Commission l 195/ '
rulemaking likewise mandate rejection of the Radon-222 contentions posed here. Clearly, even if a greater than de minimus value -is determined by the Appeal Board for the heelth effects of Radon-222 emissions, it can be easily factored into the Staff's FES for Limerick. There is cer-tainly no need to expend the time of the Board and parties in repeating the same analysis conducted in the consolidated Cases.
192/ Id. at 5. See also Perkins, 8 NRC at 100 (increase is "so small.in comparison with the fluctuations in back-ground, as to be completely undetectable."
193/ On December 7, 1981, Applicant's. counsel received yet another request for-an extension from ECNP's representative.
194 / 13 NRC at 543.
195/ See pages. 113-14, infra.
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- Moreover, it is~ highly significant that ECNP, which.
proffers-the1 contentions,' actively. participated in-the con-solidated cases. Theresis no reason why this petitioner
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should-have yet.another opportunity to litigate these issues
.now pending'before the Appeal Board.in thisLseparate pro-ceeding. Indeed, inasmuch as it has had a:" full and fair.
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opportunity" to adjudicate the radon health effects issue against_ Applicant in that proceeding its present contention 196/
isLbarred byLthe. doctrine of res judicata. ~Accordingly, 197/
this contention should be denied.
- 2. Availability of adequate permanent disposal' for-high-level radioactive waste. 'ECNP contends that there is a lack of " demonstrated certainty" that there will be adequate permanent disposal facilities for spent fuel-and high-level radwaste and a lack of. adequate assurance that proper storage space will exist if the permanent disposal facilities are-not available when needed. The ultimate disposition of reactor waste is currently the subject of NRC rulemaking.
See 44 Fed. Reg. 61372 (October 25, 1979). As a generic issue to be determined by the Commission, it is not for f
V F 196/ See Cleveland Electric Illuminating Company (Perry Nuclear
,. ' Power-Plant, Units 1 and 2), Docket Nos.-50-440.and 50-441, "Special Prehearing Conferenc.e: Memorandum and Order" (July 28,1981) (slip opinion at 39-42) .
1
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i- - 197/- In addition,' it should be noted that petitioner's attempt to satisfy the'" basis"-requirement by reference to the: -
entire record in the: consolidated proceeding and pending litigation in the.U.S.: Court of Appeals-for the District of Columbia in.three separate proceedings is completely lack-
. -ingL in ; specificity and . invalid on this basis alone.
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consideration by individual licensing boards. In recapitu-Lating the events which preceeded the notice of rulemaking,
.the Licensing Board in Allens Creek stated that it was
'" bound by the Commission's decision" to consider the matter generically in rulemaking rather than in individual adjudi-198 catory-proceedings.
Nuclear waste management contentions were also rejected on the same basis by the Licensing Board in the North Anna 199/
case. These results follow the ordinary principle that boards must reject' contentions which are the subject of generic rulemaking by the Commission. See generally -
Potomac Electric Power Company (Douglas Point Nuclear Generat-ing Station, Units 1 and 2), ALAB-218, 8 AEC 79, 84-85 (1974).
ECNP has also failed to state any basis for this con-tention. Its attempt to incorporate the entire rulemaking record in Docket No. PR-50, 51, including the stated positions of various commenters, is entirely invalid. In any event, no basis is shown for circumventing the Commission's rulemaking proceedings. Accordingly, this contention should be denied.
198/ Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), Docket No. 50-466 CP, " Order" (March 10, 1980) (slip op. at 38). See Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978), aff'd, State c of Minnesota v. United States Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979) (sustaining dismissal of con-tentions regarding ultimate waste disposal).
199/ Virginia Electric and Power Company (North Anna Power
~~~
Station, Units 1 and 2), Docket Nos. 50-338 SP and 50-339 SP,." Order Denying Intervenors' Motion to Amend Petition to Intervene" (August 17, 1979).
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- 115 --
Conclusion For the reasons discussed-above, each of the proposed
-contentions fails-to state a litigable. issue and should be l i
denied. -i Respectfully submitted; CONNER & WETTERHAHN
. . 2 Troy . onner, Jr.
' Mark J. Wetterhahn Robert M. Rader Suite 1050 1747 Pennsylvania Avenue, N.N.
Washington, D.C. 20006 202/833-3500 Counsel for the Applicant December 7, 1981 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matterlof )
)
PHILADELPHIA ELECTRIC COMPANY- ) Docket Nos. 50-352
). 50-353 (Limerick Generating Station, )
Units 1 and 2) )-
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Supplemental' Petition of Coordinated Intervenors,"
dated December 7, 1981, in the captioned matter, have been served upon the following by deposit in the United States mail this 7th day of December, 1981:
- Judge Lawrence Brenner Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section Judge Richard F. Cole Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Stephen H. Lewis, Esq.
Counsel for NRC Staff Judge Peter A. Morris Office of the Executive Atomic Safety and Licensing Legal Director
~ Board U.S. Nuclear Regulatory U.S. Nuclear. Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C.
20555 Philadelphia Electric Company Atomic Safety and Licensing ATTN: Edward G. Bauer, Jr.
Board Panel- Vice President &
U.S. Nuclear Regulatory General Counsel Commission .
2301 Market Street Washington,~D.C. 20555 Philadelphia, Pennsylvania 19101
- Copy also sent by hand delivery.
m -
Mr. Frank R. Romano Robert W. Adler, Esq.
61 Forest Avenue Assistant Counsel Ambler, PA 19002 Commonwealth of Pennsylvania,
. DER
.Mr. Charles.B. Taylor- 505 Executive House 24 West Tenth Avenue P.O. Box 2357 Collegeville, PA 19426- Harrisburg, PA 17120
'Mr. Robert L. Anthony % Thomas Gerusky, Director 103 Vernon Lane, Box 186 Bureau.of Radiation Protection Moylan, PA 1906:5 Department of Environmental Resources Mr. Marvin I. Lewis 5th Floor, Fulton-Bank Building-6504 Bradford Terrace Third and Locust Streets Philadelphia, PA 19149 Harrisburg, PA 17120 Samuel & Clarissa B. Cooper Randall Brubaker, Esc. ~
P.O. Box 16 Assistant Counsel Colora, Maryland 21917 Commonwealth of Pennsylvania, DER
- Judith A. Dorsey, Esq. Room 1200, 1315 Walnut Street 1315 Walnut Street Philadelphia, PA_ 19107 Suite 1632 Philadelphia, PA 19107 Director Pennsylvania Emergency Charles W. Elliott, Esq. Management Agency 123 N.-5th Street Basement, Transportation and Suite 101 Safety Bldg.
Allentown, PA 18102 Harrisburg, PA 17120 Mr. William Lochstet John Shniper, Esq.
119 E. Aaron Drive Hy Mayerson, P.C.
State College, PA 16804 Meeting House Law Bldg. and Gallery Mr. Alan J. Nogee Mennonite Church Rd.
3700 Chestnut Street Schuykill Rd.
Philadelphia, PA 19104 Spring City, PA 19475 Mr. Steven Levin Robert J. Sugarman, Esq.
11 Beard Circle Berle, Butzel, Kass, Case Phoenixville, PA- 19460 and Sugarman 2115 Bainbridge Street '
Donald S. Bronstein, Esq. Philadelphia, PA 19146 1425 Walnut Street Philadelphia, PA 19102 i
- By Federal Express l
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Mr. Joseph H. White, III James M. Neill, Esq.
11 South Merion Avenue . Box 511 Bryn Mawr, PA 19010 Dublin , Pennsylvania 18917 Dr. Judith H. Johnsrud-Co-Director, ECNP
-433 Orlando Avenue State College, PA 16801 Walter W. Cohen, Esq.
Consumer Advocate Office of. Attorney General 1425 Strawberry Square Harrisburg, PA 17120 1
Steven P. Hershey, Esq. I Community Legal Services, Inc.
Sylvania-House Juniper & Locust Streets Philadelphia, PA 19107 j
(
Robert M. Rader Counsel for the Applicant m--
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Ag UNITED STATES NUCt. EAR REGULATORY COMMISSION s-e wassisorou. o, c. 2 ossa
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MAY 0 8 1981 MEMORANDUM FOR: Atomic Safety and Licensing Board for FWRs (CP and OL)
FROM: Darrell G. Eisenhut, Director Division of Licensing
SUBJECT:
BOARD NOTIFICATION - THERMAL SHOCK TO PWR REACTOR PRESSURE VESSELS (3N-81-05)
REFERENCE:
Memorandum, 0.G. Eisenhut to H.R. Denton, 4 April to, 1981, with enclosed preliminary assessment of thermal shock to PWR reactor pressure vessels and references.
The results of our preliminary review of tnermal shock to PWR reactor pressure vessels is submitted as a Board Notification of relevant information in accordance with NRW Office Letter No.19, Revision 1.
This subject has received inc' eased attention during the past few months from the NRC staff and industry groups. As part of the analysis of the potential for thermal shock, the staff evaluated (1) the types of transients or accidents that could lead to overcooling of the reactcr system; (2) the experience to date with transients that have occurred in U.S. FWRs; (3) the probability that ' such overcooling events will occur; and (4) the capability of reactor vessels to withstand these transients.
Based on our review, the vessels of concern are those with a history of high radiation exposure which are made of material that has a high sensitivity to radiation damage. -
For vessel failure to occur, a cumber of contributing factors must be present. These factors are: (1) a reactor vessel flaw of sufficient size to propagate, (2) high copper content (primarily occurring in welds),-(3) a relatively high level irradiation, and (4) a severe overcooling ' transient with repressurization. In the event that a crack propagated and a breach of. the reactor vessel occurred, core cooling capability would depend upon the size and location of the breach in the vessel.
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EXECUTWE CFFICC OF THE PMEt OENT CCUNCit. ON eNVIRcNMCNTAL. QUALITY 722 'A CX3 CN . P!.A C:l , N. W. *
.v~ WASHINGT m. 3. C. 20CC4
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(..;m 2 o, M-~.s, 4
Dear Mr. Wright:
Thank v.ou for the time and effer: spen: by .v.ou and vour staff in .cretarine. for and attendinv the March 16,
. 1973, meeting in my office to resolve water allocacien issues that were found to be delaying the resumption o c_ tn.e 12.cens:.ng process :_:: tn.e Newboln. _sa, and ann.
A Literick Nucica: Pcwer Plants.
There woro essentially three :.ssues decided at the
=eeting:
- The proposed water allocation plan centained in'the January 12, 1973 letter f cm DRSC to AEC, if ad pted by the Delaware River Basin Commission, would satisfy the requirement centained in the November 3, 1972 letter f cm Chairman Train to Chai:=an Schlesinger regarding the need cc a.ssure water supplies for the plants independent of the Tec.ks Island Projact.
- DRSC will. not be reycized to p cpare separate environmental impac statements en the issue of the censumptive use of water by the two -
nuclear plants . That issue will be covered in the state =cnts prepared by the AZC cnd will be based en che analyscs submit cd to che AEC by the DRSC. Tc aid the AEC in developing an overall cost-bencfit balance for the two plants o DRBC will provide the AEC with a general evalua-tion of the envircnmental impact of the con-struction and operation of the reservoi. that
- i. DREC may require the utilitics to build and have operational by 1980. ,
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- In the -ovent that DMC decidos by January 1,
- 1977.~ that the IS80 tasb naads for censumptive wa e: will nee be me: by existing s:craga facilitiss,- theJ two utilities will bc required to build"a reservoir at an approved DMC locatien . to assure a water -supply for tho two plants. 'In such an event, the Environmental.
- Impact Statement required' by NEPA will be prepared hv. the DEC. -
Based on the decisions and the ~ccurse ed actions agreed on at our meeting, we believe that tho : squire = cuts ef all three agencias. can new be 'satisfiad and that the
. lican' sing p ccess _cn these two power plants may centince.
If there are additional ccmments and suggestions that you might wish to ;make in regard to the' issues and-- -i
[ .points please let discussed me knew asat scen theasmeetingpcssible. -er h ! this 1st:ar,
- : *'.' Sincerely, I
,ffi~ , ,A . sg (Y
s ,.
i- Alvin L. Alm Staff Director for
. Pregram Development.
Mr. James F. Wright Executive Director Delawarc Ri m Basin Ccmmission P.O. Box 360
.Trenten, Haw Jersey 08603 -
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____________11' .
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Janus-m 22, 1901
- irec:cr .
41raare ?J.ver Basin Ccc-d- ssion
?os: Office 3c:t 73M les: Wenton, Nm Jersey OSC2C
- es: Sir:
'"ha 3u eau for His toric Prese: tatien, Pennsylvania F.inerical & Muset= Cs 4saion has reviewed the final envirenrental assessment for the Neshe4ny 'izrer Scoply Sys:en prepared by the Delerare F.1ver Easin Co= issicn (J.uc.:s t , 1980). In our ocinion the report adequately daals with the i= pact of the proj ect ucen archeological rescurces in the area and the historic Delerare Canal.
Se rer: ort does not deal with the effect of the project
=cc standing struct=ec .
The Bureau fo- Eistoric Preservation has =at with rapresentatives of the Nesha=iny Water Reset ces Authori:7 e.d their engineer, I. H. Ecurquard Associates to discuss
- i:1gatien =casces for the archeological reso=ces and f e can:1. In our ocinion, nenitoring of the eroject ez:svation by a professional archeologist will' be adequate.
Of cours e , since the affect is technically adverse, a F ccrand= of Agreement with the Advisory Ccuncil on Historic Preservation vill be required.
If you have any f=ther questions in this matter,
- lcase consult 3renda Barrett of my staff at (717) 7S3-5047.
Sincerely, Ed Weintraub State Historic Preservation Officer ,
1 1
cc: E. E. Sourquard Associates, Inc.- ~ '
Ears chel S . Rich =an , Ne_sha=iny " . - ~
Water Resources Authority i _7 ~
l Colonel James Ten, U.S. Au ,, a, 3 . . 3l"'
i Corps of Ens;ineers l
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NAptN-E SU3 JECT: Environ = ental Assessment for Permit Applicatien 30-0534,-3 TC: Chief, Permits 3 ranch TRCM: Chief, ER 3 ranch CATI: CMT 2 E 'R/a g/483 3
- 1. The applicant, Neshaminy Water Resources, 4259 Swamp Road, Coylestcwn, PA 13901, proposes to construct a water intake structure in the celaware River about 0.2 miles downstream of thT mes of 'the Ten eken Creek.
- 2. The applicant's plans provide for the constructicn of an intake structure located in and adjacent to the celaware River about 1/3 mile dcunstream of the
'lillage of Point Pleasant, in Picnstead' Township, Bucks County, Pennsylvania.
The actual water intake is to be situated about 200 feet off the right bank of the Celaware River, cpposite a prcperty parcel which is cwned by the Neshaminy Water Resources Authority. The intake will be abcut 300 feet downstream of the junction of the Tchickon Creek with the Celaware River. The intake conduit will cross under the Pennsylvania Canal inland of the intake. The water intake will censist of cylindrical wedge-wire screens and support piping installed in the Celaware River apprcximately 200 feet off the right bank. These screens and supper: piping will connect to three buried 42-inch conduits which extend to a gate well located about 30 feet shoreward of the right bank. The support piping and the three 42-inch conduits will be installed by excavating pipe trenches in the channel,bottes and bank. The excavated =aterial will be succkpiled in an area back frem tha river bank and, after placing of the subsurface piping, will be utiliced as bkekfill to restore the River bottem Oc original condition. After all the piping has been satisfactorily installed, the wedge-wire screens, which are the legs of a " Tee", will be fitted to the suppor: _ piping. The 60-inch in*ake conduit uncer the Pennsylvania Canal will be installed by open cut and the Canal will be resecred to its original section with a clay liner after installation of the conduit. The initial action will be placement of an earthen dike across the Canal just downstream of the conduit crossing site, and then dewatering of the Canal between this dike and 'ack Mc.
14 which is approximately 300 feet upstream. Curing the conduit installation, the flow in the Canal will be diverted to the Celaware River by an overficw gate at Lock 14. Mcwever, ficw will be naintained in the Canal dcwnstream of the dewatered section by pu= ping a portien of the diverted flow frem the River to the Canal belew the dike. Material excavated for installation of the condui:
will be temporarily stockpiled on the pumping station site and then utilired to backfill the excavation. The purpose of the intake is to withdraw water frem the Celaware River for a water system which will supply treated potable water to central portiens of Bucks and Montgccery Counties, PA and for the cooling water system of an electric pcwer station at Limerick, PA.
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NA?IN-E SU3JICT: Enviren=ontal-Assess =ent for Per=1: Application 80-0534-2
- 3. Cli= ate. -The area normally receives about 45 inches of precipita:icn annually. The mean normal =enthly- precipi:ation :::als average fr== a
~inimum of 3.4 inches in January to a maximum of 4.5 inches in July.
. Snew-fall is nederate to heavy, averaging ahout 42 inches annually. The average 0
annual te=perature - for the study area is 5 3 F. The =ean annual freeze-free peried is abou: 155 days. In the study area, the mean st==er and winter ta=peratures are approximately 75CF and 30*, respectively. The prevailing wind directions in the area are fr== wes: to northwest averaging eight miles per hour. The mean May te October evaporation for the study area acccunts for 73 percent of the total annual precipita:Acn. .
- 4. 'Geolecy and Soils. The bedrock in the general project area is =ade up essentially of two rock types - the Lccka:Ong forma:icn and diabase. The diabase is very deep. The intake structure and conduit will be fcunded en the alluvial descsic. The pu= ping station, hcwever, will be founded entirely on bedrock. There are six principal soil series in the ?cin Pleasant Facilities Area. - The soil generally consists of sandy sile er dense sil icam derived frc= weathering of. shale er sandstone. It is acid with high cerrosion potential,
. drains peorly and has high susceptibility :: fres: action. Three of the soil series are Abbot stewn, Silt Loa =, Chalfon: Silt Lea =, and Croten Sil:
- cam.
In general, the soil is not expected to present difficulties for the construc-tien of the ?t=p Statien and related f acilities. Mcwever, during parts of the winter and spring men:hs, a very high wa' er table can cause proble=s such as sicughing of trench banks, dif ficulty in backfill cc=paction and extensive seepage water centrol.
- 5. Topocraphv. The projec: area of the Poin Pleasant ?t= ping Facilities is part of the Pied =cnt Region and hence the terrain consists of rolling hills wi:h sc=e steep slopes. The vegetation and animal life of the area is similar to that found in the Pied =cnt region. The major land use in the project area is =cstly agricultural. Mcwever, if the trends of urbanization centinue, this type of land use will decrease at a rapid rate. As hu=an settlement has increased, the forests have gradually been cleared to provide farmland and raw =aterial for housing. The c:eep slopes in the Piedmont area have restricted land use; thus, the ground cover is distine:1y different from the coastal plain.
- 6. Wildlife & Vecetation. The vegetative ground cover consists =ainly of woodland, crop land and pasture land; fallewland which ceased to be used for farming and urban land. The principal wildlife species in the area are upland game such as pheasants, rabbits, and squirrels, ruffed grouse, and white-tailed deer. Most of the land is posted, therefore, -hunting pressure is light.
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- NAPE:1-E
SUBJECT:
Environmental: Assessment for Permit ' Application 3C-0534-3 t
- 7. : Aquatic' Life. The Celaware' River at Point Pleasant flows' through ' an area
-which is. sparsely' populated; primary land use is fa. ing, although.there are a few small river-bank communities upstream.. The nearest major populations 4 . centers are Allentown-Bethlehem and Easton on. the Lehigh . River which joins the b Celaware River approximately 27 miles upstream of Point Pleasant. The celaware ,
a: Point-Pleasant is.a well-oxygenated warm water stream with a carbonate base
'and relatively good water quality. O.e water is' moderately hard and contains l _ adequate but not excessive concen :ations of nutrients. Major nutrient sources in the Point Pleasan: area appear to be non-point source runoff and the Lehigh River. The Celaware River at Point Pleasant supports a diverse fish community -
- dominated by warm water fish such as pumpkinseed,. brown bo11 head, bluegill, redbreast sunfish, satinfish shiner, swallowtail shiner, and spot ail shinor. .
Trout are unce= mon in the -Point Pleasan: ares, but are present in cold-water tributary streams and in the upper reaches of the Celaware. The area does nec l1
- appear to be critical habitat for any of the species found there. :Jo fishes
' classified as threatened or endangered by the U. S. Department of Interior are known to occur in the reach of the Delaware River. Cther fishes found ac Point Pleasant that are scught by anglers include American shad, muskellunge, channel .
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l' j _ catfish, smallmouth bass,-largemouth bass, white crappie, yellow perch, and walleye. American shad is one of the most impo rtant fishes in the non-tidal
, _ reach of the Celaware River because of its commercial and recreational' value.
It appears that the river in the vicinity of Point Pleasant is more important as a nursery grounds for American shad ik recent years than it was in the 3 sixties and early to mid-seventies when studies by Mihursky (1962) and Smith and Harmon (1974) were carried out. Probable reasons include -(l) an increased abundance of shad in the Celaware River in the last several years which has
.esulted in expansion of spawning and nursery areas and (2) displacement of the young downstream to Point Pleasant from upriver spawning grounds, perhaps related to watar releases from upriver reservoirs. The intakes poses 11 :le threat to the egg state of most of the resident fishes because they build nests and produce adhesive and/or demersal eggs. Although American shad produces large (approxi=a ely 3mm diameter) slightly demersal and slightly adhesive eggs which are carried downstream by the river currents and deposited among the bottom j materials, shad eggs will be afforded almost complete protection because they
[ are larger' than the 2mm slot size. The newly hatched life stage (prolarva) of many fishes could be entrained by the intake, but this stage is generally most
- abundant during spring and early summer when flows are high and the withdrawal will'he below maximum. This stage will also receive partial protection due'to
! -retention in. nests and parental care. The ability to protect post larvas depends
! 'on ' slot sire, growth rate, and species specific behavior. Most species develop
.the capability to resist entrainment or impingement during this development stage 1 .
and are af forded almost complete protection by, small-slot profile-wire screens l- - by the time 'transfor=ation to young is complete. The young and adult stages
will be completely protected frcm entrainment and prolonged i=pingement unless f, ;
size: and behavior _ allow intentional penetration of the screen. ,.
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NAPIN-E-SUBJETT: Enviren= ental Assessment for Permi: Application 30-0534-3 l
Cf-forsmest i=portance in the evaluation of potential entrainment te the Feint Pleasant intake is the small volu=e to be withdrawn relative to the volume of the celaware River water available (=axi=um of 5% at low flow and 1. 254- a:
average flew at ~ he Trenten gage). This effectively limi:s the passive removal of planktonic fish eggs and larvae :oo .s=all to be excluded by the 2== =esh screens to a =axi=um of 5%, assu=ang unifer= distribution of eggs and larvae in the Delaware River at Poin: Pleasan:. Crifting organis=s will be exposed to the intake cnly ence as they pass dcwnstream because at Point Pleasan the river is non-tidal. The timing of withdrawal pu=pages is also relevant to evaluation of entrain =ent i= pact. Withdrawal may occur year-round but largest pumpages are likely to occur frc= June through Oct:ber, a period that may include the peak spawning periods of several of the i=portant fishes (e.g. bass, sunfish,-
catfish). However, only a small percentage of eggs will be vulnerable to entrain-
=en: because =cs: cf the fishes that spawn in the vicinity of Point Pleasant lay demersal and often adhesive eggs in nests or a eng aquatic plants. In addition, the peak spawning . period for American sha d will have passed prior Oc the period of largest withdrawals. I=pingement of all but the earlies: life stages of fish will be =inimired (virtually eli=inated) because the intake i will utilire fine =esh (2:=) profile-wire screens with a maxi === design approach velocity to the screens of 0.5 fps. Almost all fish that cc=e in centact with the screens will be able to escape the icw screen approach velocities and will
- be assisted in moving away frc= the screens by the river currents that will flow along the screen faces. A very importanh factor of intake location is position with respect to areas of important biological activity. The pool in which the
- intake will be located is a nursery area for A=erican shad and other fishes of i interest, but the area is not of unique biological value as a spawning or nursery grounds for any species. Additionally, the intake will not block nor prove an i= pediment to the upriver and downriver =cve=ent of fish. The use of adjacent, near shore backaddies as te=porary holdi.7g areas for A=erican shad will not be disrupted by intake operation because the intake will not be located in i the backeddies. Juvenile and adult A=erican eel are present in the Celaware River.
Eels are highly susceptible to conventional intakes; hcwever, all but the s=allest I will be protected by the profile-wire screens. Recently transfor=ed eel tend to
.. interact with erofile-wire screens due to the secretative behavior and becc=e
[l i= pinged = ore friquently than many cther fishes. The Celaware Bay supports an intensive and growing eel fishery but limited Icsses to the intake shculd be of no signifirance to the eel population or fishery. Minnews numerically de=inate the fish fauna in the Point Pleasan: area and losses to a conventional intake would occur throughout the life cycle due to small adult sire. However, losses will he minimized with the use of profile-wire screens. The egg stages of mos:
! =innows will receive protecticn due to their physical characteristics and te- ;
productive behavior. The prolarval stage is vulnerable and should be lost at a i rate ec==ensurate with their density in the water colu=n. Most juvenile and adult <
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1 NAP CI-I STBJITT: Environmental Assessment for Permi: Application 30-0534-3
=innows are excellen swi==ers and receive essentially cc=plete protection with a profile-wire screen. Sc=e Icss of aquatic organisms will occur but the potential for adverse impact will be mini =ized by the use of profile-wire screens. The early life sesges of desirable fishes occur in the intake area but their potential for involvement with the intake is quite Icw. The eggs and larvae of =cs: of the fishes are not planktonic and those that do not enter the water col =n will enecunter the intake just once because of the non-tidal nature of ths river. The small percentage of the flew to be withdrawn furthe- 14 ' ~s the potential re=cval of the fish by the intake. Additionally, the profile-wire fine =esh design of the intake screen excludes the large-si:e eggs of the fish such es American shad, br:wn bullhead, and channel catfish which exceed the 2=m sic size. This proposed screen design also minimi:es the entrainment of larval fish.
The small percentage of water and organisms likely c be withdrawn frc= the river through this intake will not result in biclegically significan i= pacts Oc the fish ce== uni:7 !=pingement will be virtually eliminated. The potential for interaction of the intake structure .is minimal because the intake will be positioned out in the =ain river current and not in the backeddies along shore where young fish, including American shad, appear := congregate.
S. Adverse := pacts of constructien. Noise levels will increase during the construe:1cn period. Traffic will be impaired en Reute Nc. 32. There will be sc=e increases in traffic by pump station personnel. The site on which the station is going to be built will be permanently void of plant and ani=al wildlife. Two discrete areas of swa p-type vegetation occur en the NWRA property and are characterized by standing or slightly flowing water which is likely seecage frc=
the Pennsylvania Canal. There is a possibility that the source of water for these wetlands may be . interrupted or cut-of f through the reconstruction activity of the canal. This would result in a less of wetlands in the i==ediate area. Mcwever, this is no considered significant, in that, the wetlands are artificially created (seepage). The two wetland areas tege her cceprise only a small percentage of the applicant's property and situated pri=arily en either side of the proposed pipeline corrider. Vege:a icn of these two areas is typified by we -adapted grasses, fortes, and shrubs, such as sweet-flag, arrow-art =, skunk cabbagak water cress , bullbrush, sedge, spirea, and purple loosestrife bordered by willows,. bcx-elders and silver =aple.
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Invironmental Assessment of Per=1: Applica icn 30-0534-3 A ' narrow band of land which for=s the interface between ficodplai.n and river is mostly bare with a regular but sparse stand of water starwort, marsh purslane, and yellow sneezewcod. A wider band of purple icosestyle cecurs just above the water line between the mud and the wceded ficcdplain.
All of the plant species found on the applicants' property are _widely dis-tributed in Pennsylvania and throughout the northeastern United 5:stes, 'and
. ncne is endangered either in Federal or Pennsylvania classidica:icn. Alter-native routes for the 60" conduit and the 42" conduit have been reviewed and the route chosen has been dee=ed mest suitable for purposes of avoiding wetlands and ' engineering considerations.
- 9. Historical. The Oelaware (Pennsylvania) Canal, a historic landmark in the National Register of Historic Sites, will be exposed through crossings of equipment and the inzake conduit and by-pass cf its regular channel flew during the constructi n pericd. Obstacles to tourist usage may occur. The procedures for construction in and adjacent Oc the Oelaware Canal will be in accordance to requirements set forth by the Na:icnal Adviser / Council en Historic Preservation, the State Historical Office, and the Keeper of the National Register. An archaeologist will be retsined by the applicant to cbserve construction at the Canal.
. 10. Resources Lost. The only significant use of resources by the Point
- Pleasant Pumping Facility will censist of' power consumption, it being cstimated that approximately 3.4 million kilowatt hours will be required tnnually for a system creduction of 20 MGO and 12.0 million kilowat
- hours for a production of 40 MCD, the power requirement not varying directly to production due to usage of all available interior watershed runoff.
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NAPEN-E - _
5t.*3JIOT: Environmental Assessment for Permit Application 80-0534-3 There will be a decrease in the diversity and number of species in the i=ediate area of the plant site. The less of tirter will be per=anent. '"here will be a .
pe=anent consumption of ' treat =ent chemicals, of sc=e fuels and of 1CV c f the
-:ctal flow cf raw water.
- 11. Alternatives . The topographical configuration' and present land uses of the area at and southwest of _ the Village of Point Pleasan is such that ik does not offer 'a wide choice of aitas for a major pu= ping installation. The northern portion of the Village, being =cstly developed, would be an undesirable and costly 1ccation for an intake, pumping station and ::ansmission pipeline; also locating -
the pu=p station in a more northerly location is precluded by the existence of ,
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archaeological sites. The southern =cs: portion is severely restricted by the -
lack of adequate level terrain due to the closeness of the bluff and State Ecute 32 := the river bank. Locating the pu=p stazion is a =cre southerly direction
is further precluded by the existence of an ardaeological site located southeast of the preposed intake conduit. In su= mary, ence it was determined that the Fein: Pleasant area was the only logical location fc the pu=p station, the specific site selected for the pu=p statien is vir .ually the only feasible one.
Another =ajor constraint is the location and effect of the Tchiqken Creek. The cortined Transmission Main should, if possibie, be located scuch of the Tchicken Creek in order : avoid crossing a major stream in a deep rock valley. In addition, upon entering the ::elaware River, che water frc= Tchicken Creek produces a signifi-cant change of flew velccity of the river with the acce=panying turbulences and eddies. The effect of the eddies has been the build-up of a large sedi=ent deposi in the river below the =outh of the Creek. The river intake should be located at sc=e distance away frc= these alluvial deposits in order Oc avoid siltation at the intake entrance. The proposed intake align =ent intercepts the actual river channel and thus the =ain river at about a right angle and approximately<
800 feet dcwnstream of the =cuth cf Tchicken Creek. At this point, the river channel.
has returned to a = ore nor=al cress-section after having been restrir:ed by the- , _
alluvial deposition below its confluence with the Tchickon Creek. An intake'at tlis loca:icn has the additional advantages of minimal interference frc= icose surface'l$e, fra:11 ice and ficating logs being drawn into the intake, and from silt and sand E being deposited at the intake entrance. In addition, the location of the in ake ~' .
structure will rsquire only a minimum sized entrance channel being excavated in the river bottom. Most significant is the existence of the Pennsylvania Canal along the Celaware River, a structure of historic value and listed on the Natienal Register.
The Canal originally ran ,f cm Easten to Bristol; therefore, regardless _o # the site selected for a pump station in the Point Pleasant area, an intake condua.t., with- .
drawing water from the Celaware River in a westerly direction is required to pass under the Canal. This cannet be avoided. '
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- NA?EM-E SCEJECTi Environ = ental Assess =en: for Permit- Application 30-0534-3
- 12. No Action Alternative. Application of the no action alternative will deprive these areas of a supplemental water supply syste= and' adverse econc=ic and environmental conditions can be anticipated. The =cs: prc=inent will be the lack of water for d==estic, cc==ercial and industrial needs, the drying up of surface water strea=s of .the areas, and centa=ination of the grcundwater aquifer by overpu= ping of wells in an attempt to meet the water demands.
- 13. The major adverse environ = ental i= pacts have been identified herein. The i= pacts, hougn considerable, do not qualify the water intake structure as being a major action significantly affecting the quality of the ht=an enviren=ent.
Therefore, it is recc== ended that an Environmental Impact Statement not be
. /
l prepared by this office.
- 14. In order Oc =inimize and/cr =itigate against additional adverse environ = ental i= pacts it is recc== ended tha: the following condi icns be included in any permit issued for the water Latake structure:
- a. 70 mini = ice sil:ation ef fects on spawning-nursery areas, construe:ica activities in the River should be avoided during the major reproductive period Dtay through August) .
- b. An archaeclogist be retained for the period of excavation, construction and reconstruction for the intake, pumping f acilities and pipelines. The ardhaeologist will have responsibility for monitoring the proposed work and
- re
- crding featuras of archaeological and historic interest with particular
,, attention Oc the construction techniques used in the original canal con-struction and the possibility of prehistoric remains between the Pennsyl-vania Canal and the Celaware River.
- 15. Please infor= the Environmental Resources Branch of your actions on this
,; matter.
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RITERENCES USED IN POINT P'.EASAN'" ASSESSMENT 3ets, Ccnverse, Murdoch, Inc., 1960, Enviren= ental Assessment and Secticn 404 Analysis of Point Pleasant Civersien Project, ptecared for Philadelphia Cistrict.
Celaware River Basin Cc =ission, 1980, Final Enviren= ental Assessment for the Neshaminy Water Supply System.
l Celaware River Basin Cc= mission, 1980, Enviren= ental Assessment for the Preposed North 3 ranch Water Treat =ent Plant.
Neshaminy Water Rescurces Authority, 1979, Envi= n= ental Report on Neshaminy Water Supply System, Nesha= ny Water Rascurces Authority,
- 3ucks County, Doylestown, PA.
Philadelphia Electric Cc=pany, 1979, Enviren= ental Paport, Bradshaw Reservcir, Transmission Main, East Branch Perkic=en and Perkic=en Creeks.
N Celaware River Basin Cc= mission, 1973, Final Envircnmental != pact Statement, Point Pleasan Civersion Plan, Bucks and Montge=ery Counties, Pennsylvania.
Ichthyclegical Associates,1971, An Ecclegical Study of the East Branch of the Perkic=en Creek System near Pottstcwn, Pennsylvania, Report No. 1 Same as abcve, Report No. 2 Reper No. 3 United States Departent of Agriculture, 1976, Final Environmental Impact Statement, Nesha=iny Creek Watershed Project, Bucks and Montge=ery Counties, i Pennsylvania
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- s. s Ichthyological Associates, Inc., 1973, An Ecclogical Study in the vicinity of the Limerick Generating statien and the East 3 ranch Perkiccen Creek, Program Report No. 4.
Inviren= ental Resources 3:anen 1980-31, Working Papers 31ye 'and Harmen,1980, vegetatien of the Point Pleasant Intake Site, prepared for Neshaminy Water Rescurces Authority, County of Bucks, Ichthyological Associates, Inc.
Harmen, P. L.,1980, Siclogical Evaluation of the prescsed Wacer Intake in the Celaware River at Point Pleasant, Pennsylvania, Pcttstown Ecological Labcratory.
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1 i ke l y i n .:n a rea o f ( h D . l . twa re j u::t unriver of Trentcm (v i ci ni t y of :; rudder.:
Fell:2) . J.l. is rapcrt::c to spcwn in the nu.ddle :e che:.i of. large t.idal rivers.
. k~.derst:n that ":;cre than 10" spec:.:: ens were colloc .w.t- by a : crer: al shad '
fishcr:m near L:tre: ville this spr.nc9 T!n s was :n unusually h:.ch -
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Ci- unxnuWn .41c i :~i c CMC.2 CI C lCGI C3_11 y -CCOk i nt i . R: ver i Inws wcro qui te .1On this spr:.::, :d r. rn.p ; i h 1 arm s i ne im f i;y t b t i::tvrnon m aen: ef f:c'.en:
at c t -hirttj . stun;ecn l.hCn in pr'.!V10uS yCCrs. Th t . . :4CC:n 'd 1.0 !.C l.hu COMO wLth
.t :laVC hcCTd twC COaSCCS fOr thC Very litnN FCt CCS CL A1Uri c shCd Sh.M .
i this sn. rint.;; larr;er ntri:crs cf shad availr.=lc to c tcn and nere ofCective use cf the scr s due = lcw water. My c:nversatice with stata anc :ccera.3 .010.30-s..-, = .s ' . . ' -=. '. " = e .' . .' s .~., = =. .'_y w-
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vicinity the pcrent:al f r adverse effec: ce the Ier.ulaticn m 1L t'c al:n:s ncn-ex t .* tant. The area has not been sncwn to m c .ta tor spawntne: < ;r trd f 0r
'.hl a sDt:C. 4.3 iturgeCn GCrid are heavier Ciln Natcr T.T.O 31~O DIINHiVC. dC5.
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'ahen e.e eggs and larvae r..ght be present. .
bes x. Sei... 'u.a juva 1=s ar." *4."' The your.g. like the adults, are
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I hcce th:.s infccat:.cn will aticw ycu to respend : the ex.ca_ .s of the Se: r ce regari.nq shc = cse sturgecn.
adt.t:.cnal infocan:.cn. Please ccntact no shculd ycu require any Sinc 2:elv. v. curs, i - .
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j POf?stowfi f.*010$1C3) LJMrafCP'/
R.D. *L Fncks Locx Road . .i
. Pottstown. PA 19464
'd (215) 326.W2 20 August 1981 l
4 Ecbert Ficwer:
Neshaminy Water Pe.Jcurces Asscciatien P.O. Scx 375 2S75 Old Ycrk Pcad 4
Jamisen, PA 19929 4
Cear .VI. FICWers:
2.is letter is in reference to de pctan- d fer adverse i.=act en sha -.cse sergecn as a result of in-river ccnstructicn cf de Poin:
Pleasant int 3ke fmM 14ry. Jim PCwm cf E. H. Scurqua d Associates, Inc.
! was kird encugh to descdbe the de"41s cf prepcsed ccnstructicn precedure.
I understarxi dat de ccnstructicn will be au.Ahed with bargemtad i egai; rent &Wg the pericd Neverber drcugh March. The pireline is to be dredged frcm accut 20 ft belcw existing river betm grade near shcre to j 7 ft belcw grade at de effshore screen 1ccatien. D.e dredgal catarial is to be rec. laced as much as ;cssible after de cir.e has been ' installed in d.
the trench'. I also understand that blasting ray be required in preparaticn fcr p: per anchcri.g er. t.ne screen asserbu, .es.
Based cn my understarding cf the planned ccnst acticn methcds that
. will be used in de Neverber-+5 arch perica, it is rc:y cpinien dat de shcrt-
{ nese stc g a pepaticn will be unaffected by ccnstructicn of de Pcin:
i Pleasant intaka. S.is species dces not frequent de type cf habitat dat 2 exists at Pcint Pleasant during fa and winter. Published rated =' d e 'ir.g with de bic1cgy cf this species indicates d at it prefers de type cf 1+ 4-tat that exis a in the Celaware River Es-"m f dcunriver of Trenten. - If, in de highly unlikely event that this fish was in the intake area at de time cf ecnstructica, it wculd amid unfawrable cctditi=s, such as high silt .
lead. It wculd not be biccked by any carrade er natural irredirent fr n j ::cving away fr:m the potenti>11y stressful lW i~ed effects of ccnstructicn.
5 Sincerely ycurs,
/
i
! Paul L. Hannen i /ec: Eershel Rict:ran .
t a
y
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Augw : 23, 1980 ca: Colesal Tc=:
In the course of our e vire=cetal reviev ef :he North 3:anch Nechs=1=y Water Trear=en: 71a-: and our updata of
- na Pois: Plecaan: ?= ping Sta:1on Project, we have been advised by y.r. Ed Veint:sub , Pen =sylvania Stats F.is:=ric Preserva:1c= Cf ficar ,
(ie::er of April 3,1980) of the need to ca 917 with :he 54: 1ccal 212-
- oric Preserve:1cn Act of 1966.
Lacking a fer=al directiva, or policy,
.tich would require DR2C to respond, I see the Corps of 2 gineers as the sp-
- pr:pris:a fcdcral agency :s i=pla=ce: the Act, in accordance vi:h Mr.
Vein:: cub'c :sec== ends:1cn. Therefors, I have e= closed a ecpy of Mr.
We1 :::.ub'a Ice::: s=d all a:::ch=an:2.
If you need any addi:1ccal inf cr=atics, such as de:sils of the p cjec:, vu . rill be happy to supply it, or ycu =ay trish to contac: :he sp:11can:s - Philadelphia Ziec::ic Co=pany and the Nesha=iny Water Ecscurces Authori:7 -- dirce:1y.
i Sincerely, Garald M. Es slar e-Colo:cl Jc2es G. Tec, Dis:rict Engineer
'J.S . Ar=7 Corps of Engineers 2nd and C1cstnut St sets Philadciphis, ?ccesylvania 19106 I?.C .
- Mr. Id 'a'eintrsub ICE:ttAC e
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. : pcsi:.icn te camp 1y wi r. the previ.sions f J.o N.2tiena1 Uis orira i
.-:. i: / Act cf 1966 as i: =ay pertain t this decket.
9 new 1: ave permit applications f::m the projce: spensces for porticas
- f :. c .cr.'< wi:.hin C ps ' jurisdiction. In pr cessing thi.s,. a:Tlica:icns
- ".:r?'I wil1 ::=p1y vi-h '.t :ited Ac: in accord wL:h 33 CT?. 325,
?. pendir. C: a :Opy of :his requiation is inclesed.
Sincerely,
. . s / .
1 a s. t J. e " ' ...J ' -
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e h.u.:.a- C. .. t M 3 : ' ' 'i -
Celencl, C :ps of Ligineers O.'ss~~-. .. . . y ; . C . .-
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[
h^n .- UNITED STATES NUCLEAR REGULATORY COMMISSION
'1 ~ s i wAmmcTeu, c. c. cssa h 5
'%.' JUL S 1981 ALL LICENSEES OF CPERATING PLANTS AND APPLICANTS FOR OPEPATING LICENSES AND HOLDERS OF CONSTRUCTION PERMITS Gentlemen:
SUEJECT: PRIVACY AND PROPRIEARY MATERIAL IN EMERGENCY ?LARS (GENERIC LETTER NO. 81-27)
Cccies of 11censees' and applicants' radiological emergency plans and implementing precedures are placed in the Nuclear Regulatory Ccmmission's Public Occument Rocm in 'a'ashington, D. C. and in the Lccal Public Cocument Roca located near the clan: site for review by tne cublic.
Prior to being olaced there, these documents are carefully screened by an NRC staff office to reccve itams which involve personal privacy, sucn as hcme teleonene numcers and hcme addresses. '4 hen icentified, other privacy and proprietary material is also removec.
A problem has arisen, in at least one case, where internal, unlistad utility telephone numcers in the dccuments have been revealed to the public. In tne event of an emergency, telechone lines to tnase numcers could be loaded with non-essential calls which could interfere with officials dealing with the emergency, and could, therefore, be detrimental to the overall public healtn and safety. You can avoid reutine release of tnose numbers, and any similar information which is not in the best interest of all concerned.
'nhen emergency clans and implementing procedures,-or changes thereto, are sucmitted in the future, please mark all pages which have privacy or proprietary material, bracket the specific information involved, and identify these pages in the transmittal letter.
For tncse plans or crecedures which have already been sucmitted to the NRC, please notify me in writing by July 31, 1981 uhat informaticn, if any, should be deleted. If we do not hear frem you by that date, we will assume tne cccuments may be released to the puclic documeit recms in their antirety.
It should be noted that the above actions do n1t affect NRC's responsibilities under the Freedom of Infomation Act (FOIA). [f a formal FOIA request for the infomation is received by the NRC, the NRI will have to indecendently determine at that time if the deleted material may legally be withheld under the Act.
If" you have any questions concerning material which may be deleted, please telephcne Mr. John C. Carr, Chief, Freedcm of Information and Privacy Branch, NRC, on (301) 192-8133.
Bincerely,
) '
) I &
f Lpgggc)xjby %r) .,?:.fl&,lreczor 01 vision or Licensin@
~ .
m -
MAY - 0 o - 19 81 q
1The preliminary results of evaluations involving thermal shock indicate that there is a prob:bility of about 10-3 per reactor year that a B&W designed plant will experience a severe overcooling transient similar or greater in magnitude to that experienced at the Rancho Seco facility on March -20, 1978. Tnis transient is the most severe overcooling trans-
'ient experienced by any 'PWR in the U.S. Tne staff estimates that the probability of such an overcooling event in'CE or W-designed reactors is lower, perhaps by an order magnitude, than for 3&W-designet. reactors.
If an overcooling event such as that at Rancho Seco in 1978 were to occur, even for the vessel with the worst material properties in the current population of reactor vessels, the staff would not excect a failure. The staff conclusion is' supported by an analysis -of the Rancho Seco event performed by the Oak Ridge National Laboratory which indica-ted that it would be several years before any B&W-designed facility reached the threshold irradiation level for crack initiation (that is, small cracks grcwing to larger ones assuming conservative initial material properties). Some reactor vessels -in CE & W facilities have somewhat higner irradiation histories; however, other mitigating factors provide a significant margin to failure: should an overcooling event similar to tnat at Rancho Seco occur.
Tne staff has determined that no immediate licensing actions are required for plants under construction, plants under review for construction permits or operating licenses, or operating facilities; hcwever, the staff is taking the following actions:
- 1. Met with industry representatives to discuss the subject.
- 2. A continuing evaluation and refinement of its understanding of this safety concern and better definition o^ what actions the industry and staff must take to resolve thi; issue.
Since the safety concern increases with irradiation time, the staff feels that the issue of thermal shock is not of short-tera safety significance for plants with little or no operating history. For plants with an operating history the issue should be noted but in light of our prelimi-nary analyses the staff sees no justification for treating the issue on a case-by-case basis and-will continue 'to address th concern generically.
\ .
7 drrke$f.(4f'tlL y i G. tisennuw, Director Division of Licensing
Enclosure:
Memo dtd 4/28/81
.