ML20010C277

Brief Opposing MP Oncavage 810606 First Set of Exceptions to ASLB 810528 Memorandum & Order Summarily Disposing of All Contentions & Cancelling Evidentiary Hearing.Brief Opposing 810627 Exceptions to Be Filed Later.W/Certificate of Svc

ML20010C277
Person / Time
Site:	Turkey Point
Issue date:	08/12/1981
From:	Reis H FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-SP, NUDOCS 8108190306
Download: ML20010C277 (60)

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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g<,s BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4 i 9' .

In the Matter of ) Docket Nos. 50-2EO-SP3

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) 50-251-SPm b FLORIDA POWER & LIGHT COMPANY )

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) (Proposed Amendments Q (Turkey Point Nuclear ) Facility Operating Lice Generating Units Nos. 3 ) to Permit Steam Generator and 4) ) Repairs) 9 e +

B- .1 LICENSEE'S BRIEF IN OPPOSITION TO 2 AUG 131981 > r INTERVENOR'S INITIAL EXCEPTIONS { Office of the Smetsf T

~ Docketing & Smice Branch ,

9 7 Cn Lowenstein, Newman, Reis &

Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8400 Steel Hector & Davis 1400 Southeast First National Bank Building Miami, Florida 33131 Telephone: (305) 577-2800 go3 DATE: August 12, 1981 $

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TABLE OF CONTENTS Page Table of r sntents i Table of Authorities lii Cases iii Administrative Decisions iv Statutes- v NRC Regulations vi Miscellaneous vi Introduction 1 Issues Presented For Review 3 Statement of the Case 4 Argument 17 I. THE NRC IS NOT BOUND BY THE REGULATIONS OF THE COUNCIL ON ENVIRONMENTAL QUALITY (EXCEPTION 1). 19 II. THE FES, IN PARTICULAR, THE EVALUATION OF ALTERNATIVES, COMPLIES WITH NEPA (EXCEPTIONS 2, 3,4,5,6,7, 10, 11 AND 12). 24 III. THE LICENSING BOARD DID NOT ERR IN RULING THAT THE PROPOSED STEAM GENERATOR REPAIRS DO NOT MATERIALLY ALTER THE ENVIRONMENTAL IMPACTS OF THE TURKEY POINT FACILITY OR ITS SITE (EXCEPTION 8). 36 IV. THE LICENSING EOARD DID NOT ERR IN ASSUMING THAT THL INTERVENOR BY PROPOSED AMENDMENT 16 MEANT TO REFER TO THE ENVIRONMENTAL IMPACT RESULTING FROM THE INTERACTION OF A HUkRICANE WITH STEAM GENERATOR REPAIR ACTIVITIES. (EXCEPTION 9) . 38 m

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.r- 9 Page' V. THE LICENSING BOARD DID NOT ERR IN GRANTING

SUMMARY

DISPOSITION OF CONTENTION 4B (EXCEPTION 13). 41 VI. A " PROGRAMMATIC" EIS IS NOT REQUIRED FOR THE TURKEY POINT STEAM GENERATOR-REPAIRS (EXCEPTION 14). 46 Conclusion 49 r

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.e 1 TABLE OF AUTHORITIES Cases Page Cobble Hill Association v. Adams, 470 F. Supp. 1077 (E.D. N.Y. 1979) 31-32 County of Suffolk-v. Secretary of Interior, 262 F.2d 1368 (2d Cir. 1977), cert, denied, 434 U.S. 1064 (1978) 35 Humphrey's Exccutor v. United States, 295 U.S. 602 (1935) 21 Kleppe v. Sierra Club, 427 U.S. 390_(1976) 48 Riedel v. Atlas Van Lines, Inc.,

272 F.2d 901 (8th Cir. 1959),

cert. denied, 362 U.S. 942 (1960) 45 San Antonio v. United States, 631 F.2d 831 (D.C. Cir. 1980) 32 Save the Niobrara River Association v. Andrus, 483 F. Supp. 844 (D. Neb. 1979) 32 Sierra Club v. Morton, 458 F.2d 827 (D.C. Cir. 1972) 34, 35 State of Illinois ex rel.

Scott v. Butterfield, 396 F. Supp. 632 (N.D. Ill. 1975) 31, 32 Trout Unlimited v. Morton, 509 F.2d 1276 ;9th Cir. 1974) 35

-Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) 19, 29, 44 Weiner v. United States, 357 U.S. 349 (1958) 21 i

Westside Property Owners v. Schlesinger, l 597 F.2d 1214 (9th Cir. 1979) 31, 32 l

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Administrative Decisions Page Consumats Power Co. (Big Rock Point Nuclear Plant),

ALAB-636, 13 NRC 312 (1981) 26-27, 28 Consumers Power Co. (Midland Plant, Units 1 and 2),

CLI-74-5, 7 AEC 19 (1974), rev'd sub nom.

Aeschliman v. NRC, 547 F.2d 622 (1976), rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.

519 (1978) 29 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-458, 7 NRC 155 (1978) 34, 35 Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),

LBP-78-ll, 7 NRC 381, aff'd ALAB-470, 7 NRC 473 (1978) 27 Long Island Lighting Co. (Shoreham Nuclear Power Station),

ALAB-156, 6 AEC 831 (1973) 34-35 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station),

ALAB-161, 6 AZC 1003 (1973) 35 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-244, 8 AEC 857 (1974) 19, 47 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) ,

ALAB-455, 7 NRC 11 (1978),

remandcd on other arounds sub nom.

Minnesota v. NRC,'602 F.2d 412 (D.C. 27, 29, Cir. 1979) 30, 31, 35 Portland General Electric Co. (Trojan Nuclear Plant),

ALAB-531, 9 NRC 263 (1979) 27, 35, 49

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a t Page Portland General Electric Co. (Trojan Nuclear Plant),

28, 29 ALAB-534, 9 NRC 287 (1979)

Potomac Electric Power Co.

(Douglas Point Nuclear Generating Station, Units 1 and 2),

22 8 AEC 79 (1974)

Public Service Electric and Gas Co.

(Salem Nuclear Generating Station, Unit 1),

ALAB-650, 14 NRC (July 17,1981) 19 Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1) , 19 ALAB-648, 14 NRC (July 2, 1981)

Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B),

ALAB-463, 7 NRC 341 (1978) 19 Toledo Edison Co.

(Davis-Besse Nuclear Power Station), 3 ALAB-300, 2 NRC 752 (1975)

Virginia Electric Power Co.

(Surry Nuclear Power Station, Units 1 and 2),

CLI-80-4, 11 NRC 405 (1980) 6, 49 Virginia Electric Power Co.

(Surry Power Station, Units 1 and 2),

DD-79-19, 10 NRC 625 (1979) 49 Statutes Energy Reorganization Act of 1974 21 Section 201, 42 U.S.C. S 5841 j

National Environmental Policy Act of 1969, Section 102 (2) (C) , 42 U.S.C. S 4332(2) (C) 21 1

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s. t Page NRC Regulations 26, 47 10 CFR S 2.714(b) (1981) 9 10 CFR S 2.715(c) (1981) 44 10 CFR S 2.749(d) (1981) 22 10 CFR S 2.758(a) (1981) 46 10 CFR S 2.760a (1981) 2, 3 10 CFR S 2.762(b) (1981) 44, 45, 46 10 CFR Part 20 44, 45 10 CFR Part 50 20-21, 22 10 CFR Part 51 21 10 CFh . 51.1(b) (1981) 10 CFR S 51.102(c) (proposed), 23 45 Fed. Reg. 13739 (March 3, 1980)

Miscellaneous 22 40 CFR S 1501.7 (1980) 23 40 CFR S 1505.2 (1980) 23 40 CFR S 1506.10 (1980)

Executive Order No. 11,991, May 24, 1977, 3 CFR 123 (1977),

reprinted in 42 U.S.C. S 4321 (1977), 20, 21 l

amending Lxecutive Order No. 11514 20 39 Fed. Reg. 2627 (July 18, 1974) 1, 6 , 28 42 Fed. Reg. 62569 (Dec. 13, 1977) 21, 22 45 Fed. Reg. 13739 (March 3, 1980

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) Docket Nos. 50-250-SP

) 50-251-SP FLORIDA POWER & LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear ) Facility Operating Licenses Generating Units Nos. 3 ) to Permit Steam Generator and 4) ) Repairs)

LICENSEE'S BRIEF IN OPPOSITION TO INTERVENOR'S INITIAL EXCEPTIONS INTRODUCTION This proceeding involves amendments to the facility operating licenses of Florida Power & Light Company (Licensee or FPL), Nos. DPR-31 and DPR-41, to permit steam generator repairs at Turkey Point Nuclear Generating Units Nos. 3 and 4, located in Dade County, Florida. See 42 Fed. Reg. 62569 (December 13, 1977).

The Intervenor in the instant proceeding, Mark P.

Oncavage (Intervenor) , has filed two sets of exceptions to the actions of the Atomic Safety and Licensing Board. The

'first set of exceptions (Initial Exceptions), filed on June 6, 1981, relate to a Memorandum and Order issued by the Licensing Board on May 28, 1981 (May 28 Order) , which, pursuant to motions filed by the Licensee and the NRC Staff, l;

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e- s summarily disposed of all of the Intervenor's outstanding contentions and cancelled a previously scheduled evidentiary hearing. Thereafter, on July 8, 1981, Intervenor filed a brief (Initial Brief)-1/ in support of the Initial Exceptions.

On June 19, 1981, the Licensing Board issued its " Final Order" which " permanently cancelled" the previously scheduled evidentiary hearing, reaffirmed the May 28 Order and authorized the Director of Nuclear Reactor Regulation to issue operating license amendments permitting proposed steam generator repairs of Turkey Point Nuclear Generating Units Nos. 3 and

4. On June 27, 1981, the Intervenor filed a set of exceptions (Final Exceptions) to the Final Order and on August 7, 1981, the Intervenor filed a brief (Final Brief) in support of those exceptions.

Accordingly, the Intervenor has filed two sets of exceptions and two briefs. Under 10 CFR S 2.762(b), the due date for the filing of the Licensee's brief in opposition to the Initial Exceptions is August 12, 1981. This date pro-vides insufficient time for Licensee's counsel to prepare a brief in opposition to the second set of exceptions.

Consequently, FPL is filing this brief in opposition to the Initial Exceptions only and will file its brief in opposition 1/ Cited hereinafter as In. Br., p. .

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e r 9 to the Final Exceptions, in accordance with 10 CFR S 2.762(b).-2/

ISSUES PRESENTED FOR REVIEW The Intervenor in his Initial Brief has, for the most part, argued each of his fourteen exceptions separately in numerical sequence. However, a number of the exceptions relate to a single issue. In order to avoid unnecessary repetition, Licensee has combined these exceptions in its Argument and submits that the issues presented for review are:

I. WHETHER THE NRC IS BOUND BY THE REGULATIONS OF THE COUNCIL ON ENVIRONMENTAL QUALITY (EXCEPTION 1).

II. WHETHER THE FES, IN PARTICULAR, THE EVALUATION OF ALTERNATIVES, COMPLIES WITH NEPA (EXCEPTIONS 2, 3, 4, 5, 6, 7, 10, 11 and 12).

III. WHETHER THE LICENSING BOARD ERRED IN RULING TRAT THE PROPOSED STEAM GENERATOR REPAIRS DO NOT MATERIALLY ALTER THE ENVIRONMENTAL IMPACTS OF THE TURKEY POINT FACILITY OR ITS SITE (EXCEPTION 8).

IV. WHETHER THE LICENSING BOARD ERRED IN ASSUMING THAT THE INTERVENOR BY PROPOSED AMENDMENT 16 MEANT TO REFER TO THE ENVIRONMENTAL IMPACT RESULTING FROM THE INTERACTION OF A HURRICANE WITH STEAM GENERATOR REPA1R ACTIVITIES (EXCEPTION 9).

-2/ There appears to be some question whether the May 28 Order was " final" for appeal purposes and whether ti!e two sets of exceptions and two briefs conflict with the policy against piecemeal appeals. Toledo Edison Co.,

(Davis-Besse Nuclear Power Station) , ALAB-300, 2 NRC 752, 758 (1975).

r i 1 V. WHETHER THE LICENSING BOARD ERRED IN GRANTING

SUMMARY

DISPOSITION OF CONTENTION 4B (EXCEPTION 13).

VI. WHETHER A " PROGRAMMATIC" EIS IS REQUIRED FOR THE TURKEY POINT STEAM GENERATOR REPAIRS (EXCEPTION 14).

STATEMENT OF THE CASE Turkey Point Units Nos. 3 and 4 began commercial operation on December 14, 1972, and September 9, 1973, respectively, after extensive environmental review by the U.S. Atomic Energy Commission. In 1974, the sodium phosphate secondary water chemistry treatment for the steam generators was converted to an all volatile chemistry treatment. Following the conversion, in 1975, certain corrosion-related problems such as denting of steam generator tubes began to occur. As a result of denting and related problems, it became necessary to plug the degraded tubes.

Because of the continuing denting and related problems, the probability of additional tube plugging that could result in power derating, and economic considera'tions for operating with substantially reduced heat transfer capacities on the two units, FPL decided to submit a proposal for repair

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See U.S. Atomic Energy Commission, Final Environment Statement related to operation of Turkey Point Plant, Dockets No. 50-250 and 50-251, July, 1972.

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s s the steam generators to the U.S. Nuclear Regulatory Commission (NRC or Commission) .-4/

By' letter dated September 20, 1977, FPL submitted to the NRC a report entitled " Steam Generator Repair Report --

Turkey Point Units 3 and 4" (SGRR) , which was thereaf ter supplemented by Revisions 1 through 7, dated, respectively, December 20, 1977; March 7, April 25, June 20, and August 4, 1978; January 26, 1979; and March 28, 1980. The SGRR describes FPL's proposed program to repair the six steam generators in Units ' and 4 by replacing the lower assembly, including the tube bundles, of each generator.-5/ The NRC Staff reviewed the program and issued a Safety Evaluation on May 14, 1979, and an Environmental Impact Appraisal (EIA) on June 29, 6/

1979.

However, because of subsequent events, each of these documents was later supplemented or amended.-7/

After the Commission issued a :<emorandum and Order, on March 4, 1980, directing the preparation of an environmental

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U.S. Nuclear Regulatory Commission, Final Environmental Statement related to steam generator repair at Turkey Point Plant, Units 3 and 4, Docket Nos. 50-250 and 50-251, Florida Power and Light Company, March, 1981 (NUREG-074 3) (hereinafter, FES), pp. 2-1 to 2-2.

5/ FES, p. 1-1. The proposed repair program is summarized in the May 28 Order (pp. 5-7) and is more fully described in the FES.

6/ FES, p. 1-1.

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impact statement (EIS) in connection with the repair of the steam generators at'Surry Nuclear Power Station,-8/the NRC Staff concluded that an EIS should also be prepared in connection with the Turkey Point steam generator repairs.

Accordingly, a Draft Environmental Statement (DES) (NUREG-0743) was prepared in December, 1980, and was circulated for 10/

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comment; and a Final Environmental Statement (FES) (NUREG-0743) was issued at the end of March, 1981.

On December 13, 1977, the'NRC published in the Federal Register a Notice of Proposed Issuance of Amendments to the Turkey Point Operating Licenses to permit the proposed steam generator repairs.--11/ No petitions to intervene were filed during the 30-day intervention period. However, on February 9, 1979, more than a year after the expiration of that period, Mark P. Oncavage, now Intervenor in this pro-ceeding, submitted his Petition to Intervene.-~12/ In 8/ Virginia Electric Power Co. (Surry Nuclear Power Station, Units 1 and 2), CLI-80-4, 11 NRC 405 (1980).

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See letter from Steven C. Goldberg, NRC, to Members of the Atomic Safety and Licensing Board Panel (March 6, 1980).

10/ See FES, Sec. 7, Sec. 8, App. E.

11/ 42 Fed. Reg. 62569 (December 13, 1977).

Letter from Mark P. Oncavage to U.S. Nuclear 'aegulatory 12/ Commission (February 9, 1979).

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e s support of his ability to contribute to this proceeding, the Intervenor asserted that he had commitments from experts who would address "[t]hree major areas of concern for public health and safety": " (1) the long term on site storage of steam generator lower assemblies in an earthen floor facility; (2) the occupational radiation exposure; and (3) the release of liquid effluents containing radioactivity into a closed cycle cooling canal."---13/

FPL expressed concern about the delay engendered by the admission of the Intervenor, since it desired "to be ready to perform the repairs when it became necessary or economically feasible to do so."--14/As the Licensing Board noted, the date for beginning the repairs was regarded by FPL as dependent upon a mix of considerations, including the extent of degradation, unplanned repair outages, the availability of alternate generation and other factors,--15/ and, in fact, the schedule for starting the repairs has been modified from time to 13/ Supplemental Submission of Petitioner Mark P. Oncavage (June 5, 19'9), p. 2.

14/ See Order Ruling on the Petition of Mark P. Oncavage (August 3, 1979), p. 24.

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15/ Id.

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, s 8-time.--16/ _

The then Chairman of the Licensing Board characterized-the Intervenor's contentions as " essentially non-specific 17/

' bare bones' contentions." Nevertheless, the Licensing Board took the view that "the effective delay of granting the petition [to intervene] would amount to a few months, at most" and that the Intervenor's participation could reasonably 18/

be expected to assist in developing a sound record.

16/ Originally, it was planned to start the repairs with

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Unit 4 in October of 1978. FES, p. 1-1. This was later scheduled for the fall of 1981 with the Unit 3 repairs to be made one year later. See letter from counsel for FPL to the Licensing Board (June 12,1981) .

However, because of an unplanned repair outage at Turkey Point Unit No. 3, the repairs were, in fact, commenced on Unit 3 immediately following the authorization of the operating license amendments on June 24, 1981.

Licensee's Answer in Opposition to Intervenor's Application for Stay of Final Order (July 10, 1981), p .- 8 .

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Order Ruling on the Petition of Mark P. Oncavage (August 3, 1979), p. 19 (Opinion of Elizabeth S. Bowers).

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Order Ruling on the Petition of Mark P. Oncavage (August 3, 1979), pp. 26-27 (emphasis in original) .

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The Licensing Board admitted the Intervenor as a party and several of his original contentions, despite the untimely nature of his petition to intervene.--19/- One of the admitted contentions asserted that "an environmental impact statement should be issued in connection with the repair."~~20/ This was at a time when the NRC Staff's view was that an EIS was not required under the National Environmental Policy Act of 1969 (NEPA) and that an EIA would be adequate. In a subsequent order, the Licensing Board accepted a total of nine of the Intervenor's rephrased and renumbered contentions,--21/including Contention 1 (relating to the issuance of an EIS),-~22/which states:

--19/ Order Ruling on the Petition of Mark P. Oncavage, (August 3, 1979), pp. 28-29. Thereafter, the Licensing Board granted the petition of Metropolitan Dade County to participate pursuant to 10 CFR S 2.715(c). Order Relative to Metropolitan Dade County's Petition to Participate Under 10 CFR S 2.715(c) (October 27, 1980).

Dade County was served with all subsequent pleadings in the proceeding and provided with notice of all subsequent hearings, meetings, etc. Dade County has not filed any exceptions to the Licensing Board's actions.

--20/ Order Ruling on the Petition of Mark P. Oncavage (August 3, 1979), p. 28.

~~21/ Order Relative to Contentions and ~ Discovery (September 25, 1979). This order recorded the admission of Contentions 1, 2,3,6,7, 9, 11, 13 and 14. Contentions 1, 2, 3, 6, 7, 9, 11 and 13 in this order were subsequently renumbered as Contentions 1, 2, 3, 4A, 5, 6, 7 and 8, respectively. See Memorandum and Order (April 2, 1981), pp. 3-5.

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Order Relative to Contentions and Discovery (September 25, 1979), p. 2.

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m Section 102(2) (C) of the National Environmental Policy Act (42 U.S.C.

S 4332(2) (C)) or 10 CFR S 51.5 requires the preparation of an Envj.ronmental Impact c

Statement prior-to the is.uance by the Nuclear Regulatory Commission of amend- _

l ments to the operating license for Turkey Point Units Nos. 3 and 4 (Facility Operating Licenses Nos. DPR-31 and DPR-41) authorizing the  !

Licensee to repair the steam generators now in use in each. facility.

Ir. urtar to minimize the delay resulting frcm the late i

intervention, "FPL and the Intervenor agreed to a tight discovery schedule with the evidentiary hearing commencing on December 4, 1979."--23/ However, following the filing of late discovery requests by the Intervenor, which were objected to by Licensee, the Licensing Board cancelled the dates previously set for completing discovery, filing of prepared testimony, and the hearing.--24/ Thereafter, FPL modified its proposal for performing the repairs.--25/ Preparation of an EIS and updating of the safety evaluation also contributed to the delay. However, on January 26, 1981, the parties met and negotiated another proposed schedule--26/which was accepted by 23/

Order Relative to Discovery and Scheduling (November 15, 1979), p. 1.

24/ Id., p. 4.

25/ Revision 7 to the SGRR (March 28, 1980) .

26/ Letter from counsel for FPL to the Licensing Board

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(January 28, 1981).

27/

the Licensing Board.-- Among other things, the new schedule fixed April 15, 1981, as the final date for filing discovery requests and motions for summary disposition, and June 1, 1981, as the date for commencement of the hearing.

In the meantime, extensive discovery was conducted by 28/

the Intervenor during the fall and winter of 1979-80,-- which was supplemented by further document discovery and on-site inspection during the fall and winter of 1980-81 and in the 27/ Order Accepting Negotiated Schedule (February 23, 1981).

28/ Intervenor Mark P. Oncavage's Interrogatories to, and Request for the Production of Documents from, Licensee Florida Power and Light Company (October 27, 1979);

Licensee's Responses and Objections to Intervenor Mark P. Oncavage's Interrogatories to, and Request for the Production of Documents from Licensee, Florida Power and Light Company (December 17, 1979); Order Relative-to Interrogatories in Dispute Between Florida Power and Light and Intervenor Mark P. Oncavage (January 4, 1980); Licensee's Supplemental Responses to Intervenor Mark P. Oncavage's Interrogatories to, and Request for the Production of Documents from Licensee, Florida Power and Light Company (January 31, 1980);-Intervenor Mark P. Oncavage's Request for the Production of Documents from Licensee, Florida Power and Light Company (March 18, 1980); Licensee's Response to Request for Production of Documents (April 22, 1980); Amendment to Licensee's Response for '

• oduction of Documents (April 28, 1980).

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spring of 1981.--29/

During the latter period, the NRC Staff and FPL filed motions for summary disposition of the Intervenor's contentions which had been admitted by the Licensing Board's Order of September 25, 1979,--30/ and later renumbered by the Order of April 2,'1981;--31/ and subsequently, all of the contentions were ultimately disposed of by summary disposition.--32/ The Intervenor agreed to, or did not oppose, summary disposition of Contentions 2 (occupational radiation exposures and availability of work force), 3 (discharge of primary coolant and laundry waste water), 4A (releases from steam generator 29/ Motion to Permit Entry Upon Turkey Point Site (November

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9, 1980); Licensee's Response in Opposition to Int 5rvenor's Motion to Permit Entry Upon Turkey Point Site (December 24, 1980); Intervenor Mark P. Oncavage's Request for Production of Documents from Licensee, Florida Power and Light Company (April 14, 1981); Intervenor Mark P.

Oncavage's Request to Produce Documents from Licensee, Florida Power and Light Company (April 15, 1981);

Licensee's Response to Intervenor's Discovery Requests (April 22, 1981); see Menorandum and Order (Prehearing Conference, March 74 25, 1;81) (April 2, 1981), pp. 1, 3; May 28 Order, pp.- 40-41.

30/ Order Relative to Contentions and Discovery (September 25, 1979).

31/ Memorandum and Order (April 2, 1981).

--3V Memorandum and Order (April 2, 1981); Memorandum and Order (April 29, 1981); and May 28 order.

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lower assemblies during long-term storage on site), 5 (full-flow condensate _ polishing demineralizing system), 6 (cumulative off-site radiation releases during the repairs),

7 (adequacy of cost calculations), 8 (a'dequacy of radiation monitoring during repair), and 14 (protection against fire hazards). These covered.each of the Intervenor's "three major areas of concern" which had constituted the basis for permitting him to intervene in the proceeding.

At issue here is only the Licensing Board's summary disposition of Contentien 1 and of Contention 4B. Contention 1 literally states no more than that NEPA requires the preparation of an EIS before the NRC may issue operating license araendments authorizing the repairs. The NRC commenced i the preparation of an EIS after the contention was admitted.

Consequently, at a prehearing conference held on March 24, 1981, the Licensing Board took the initial position that the contention was moot. However, Intervenor's counsel argued that the contention should be interpreted as putting into issue the legal and factual adequacy of the environmental impact statement. The Licensing Board ruled that Contention 33/

1 would lack specificity as so interpreted - but granted the Intervenor leave until April 20, 1981 (which was approximately 33/

Prehearing Conference (March 24, 19 81) , Tr . 11-14 , 3 4-35, 42-43.

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20 days after the expected completion date of the FES) to file " appropriate amendments" to Contention 1 "in order to plead with specificity the respects in which the FES . . .

does not legally or factually comply with NEpA."--34/

Over the objections of the Licensee and NRC Staff, the Licensing Board also permitted the Intervenor to add a new ccntention, Contention 4B, at the Prehearing Conference 35/

on March 24, 1981.

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Contention 4B states as follows:

1 There are likely to occur radioactive releases, (from the steam generator repair) to unrestricted areas which violate 10 CFR Part 20 or are not as low as is reasonably achievable within the meaning of 10 CFR Part 50 as a result of a hurricane or a tornado striking the site during the steam generator repairs.

The Intervenor filed seventeen proposed amendments to Contention 1 on April 20, 1981.-~36/ Thereafter, the NRC Staff submitted objections to the proposed amendments and a motion for summary disposition of Contentions 1 and 4B.~-37/

The License also objected to the admission of the proposed amendments ans 'iled responses in support of the NRC Staff's 34/ Memorandum and -der (April 2, 1981), p. 4.

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Tr. 60, 67, 99-lt - Memorandum and Order (April 2, 1981), p. 5.

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Intervenor's Amendment to Contention 1 (April 20, 1981).

37/ NRC Staff Objections to Proposed Amended Contention 1 and Third Motion for Summary Disposition (April 27, t

1981).

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motion for summary disposition of Contentions 1 and 4B.

-The Intervenor submitted a " response" to the NRC Staff's.and Licensee's objections to the proposed amendments and submitted a response in opposition to the motion for summary disposition of Contentions 1 and 4B.--39/

In its May 28 Order, the Licensing Board granted summary disposition of Contentions 1 and 4E, dismissed all of the Intervenor's contentions with prejudice and retained jurisdiction to consider the subject of solid low-level' waste generated during the repairs. The Licensing Board also directed the 38/ Licensee's Response in Support of NRC Motion for Summary Disposition of Amended Contention 1 and Objections

' to the Amended Contention - (April 30, 1981); Licensee's Response in Support of NRC Staff Motion for Summary Disposition of Contention 4B (May 5, 1981).

39/ Response to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Motion to Dismiss Contention

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1 (Response; May 12, 1981); Answer Opposing the Motion or Summary Disposition (May 19, 1981). Both the Staff and the Licensee moved to strike the Response as an unauthorized pleading. Licensee's Motion to Strike or Reject Intervenor's Unauthorized Pleading (May 18, 1981); NRC Staff Motion to Strike Intervenor's Response to NRC Staff and Applicant Objections to Amended Contention 1 (May 18, 1981). However, the Board, viewing the Response as mostly a duplication of the Intervenor's authorized answer to the Staff's nummary disposition motion, did not act on the motions. _See May 28 Order,

p. 24.

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Parties to file information on this matter.~~

All of the parties filed responses to the Licensing 41/

Board's request for information.-- Following review of the information submitted by the parties, the Licensing Board

" concluded that the impact of a hurricane or tornado on LLW

[ low-level waste] to be stored at Turkey Point during the proposed repairs would not endanger the health and safety of 42/

the public." - The Board's Final Order also authorized issuance of license amendments to permit the proposed steam generator repairs.-~43/

i 40/ Memorandum and Order (May 28, 1981), pp. 40-43. The

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Licensing Board also ruled that 15 of the 17 amendments to Contention 1 were not admissible as contentions.

Id., pp. 7-23. In additic:t, the Licensing Board cancelled the evidentiary hearing scheduled for June 2, 1981. Id., pp. 37-39, 43.

41/ See

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Intervenor's Position as to Action the Board Should Take Regarding the Disposal of the Solid Waste Resulting from the Steam Generator Repair (June 12, 1981); letter from Steven C. Goldberg to Atomic Safety and Licensing Board members (June 12, 1981); letter from Norman A. Coll to Atomic Safety and Licensing Board (June 12, 1981).

42 / Final Order (June 19, 1981), p. 8.

43_j / Final Order (June 19, 1981) , pp. 8-9.

A"GUMENT Before each of the issues raised by the Intervenor's appeal is discussed, the context in which the Intervenor's Initial Brief was filed warrants consideration. The Licensee submits that such a consideration will clearly reveal that, with respect to Contention 1, the Intervenor is attempting to raise many issues for the first time on appeal.

As previously mentioned, the Licensing Board afforded the Intervenor'the opportunity to file appropriate amendments to Contention 1 in order to provide specificity to the allegation that the FES for the repairs does not legally or factually comply with NEPA. In response, the Intervenor filed seventeen proposed amendments to contention 1. Even a cursory review of the proposed amendments diccioses that many contain nothing more than conclusory allegations which merely parrot some of the language of NEPA without specifying the manner in which the requirements of that Act_have not been met; and the Intervenor offered no additional basis for any of the proposed amendments.

Even after the Licensee and NRC Staff objected to the proposed amendments for lack of specificity and after the NRC Staff moved for summary disposition of Contention 1, the Intervenor still failed to provide any basis for any of his proposed amendments, except for the proposed amendments

regarding alternatives.--44/ The Licensing Board in the May 28 Order reviewed the proposed amendments and held that twelve of the proposed amendments lacked specificity or 45/

bases.

-~

The Intervenor has not excepted to any of these holdings.

Even though the Licensing Board ruled that most of the proposed amendments did not state cognizable contentions, it .

still attempted to address the merits of the proposed amendments and in fact granted summary disposition of each of the proposed amendments. Given the fact that most of the proposed amendments lacked specificity or bases, the Board's discussion of the merits of the proposed amendments naturally could deal only with general issues related to the proposed amendments.

The Intervenor now argues that the Licensing Board erred by failing to consider particular matters alleged to be encompassed in the proposed amendments, but actually raised for the first time in his brief.~~46/The U.S. Supreme Court

~~44/

See Response to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Motion to Dismiss Contention 1 (May 12, 1981); Answer Opposing the Motion for Summary Disposition (May 19, 1981).

45/ Proposed amendments 3-5, 7-15 were held to lack specificity or bases.

-46/ In. Br., pp. 11-16, 18-21, 23-24; see Exceptions 4, 5, 7, 8, 9, and 14.

l I

. .~ ~ _. _ ,

l 19 -

had an appropriate response for similar conduct by another intervenor:

[A]dministrative proceedings should not be

e. game or a forum to engage in unjustified obstructioniam by making cryptic and ob-scure reference to matters that "ought to be" considered and then, after failing to do more to. bring the matter to the agency's atten-tion, seeking to have that agency determination vacated on-the ground that the agency failed to consider matters " forcefully presented."

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54 (1978), quoted approvingly in Public Service Electric and. Gas Co. (Salem Nuclear Generating Station, Unit 1) ,

ALAB-650, 14 NRC , slip op. p. 44 (July 17, 1981);

see also Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-648, 14 NRC , slip op. pp.

6-7 (July 2,1981); Tennessee valley Ay,g3prity (Hartsville Nuclear Plants, Units lA, 2A, 1B ap, I' ' ) . ALAB-463, 7 NRC 341, 348 (1978); Northern Statt- .w e Cc . (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 864 (1974).

I.

THE NRC IS NOT BOUND BY THE REGULATIONS OF THE COUNCIL ON ENVIRONMENTAL QUALIT1 (EXCEPTION 1).

Intervenor's Exception 1 states:

The board erred in ruling that the NRC was not bound by the regulations of the Council on Environmental-Quality. Last paragraph on p. 8 and first paragraph on

p. 9 of the order, s

- a

N.

This Exception relates to the Licensing Board's ruling that

- Intervenor's proposed amendments 1 ano 2 to Contention 1 did not plead cognizable contentions and were also subject to summary disposition.-47/

Proposed amendments 1 and 2 state:

1. The EIS failed to follcw section 1501.7 of the NL?A regulations in that the staff failed to invite interested persons to participate in a scoping process in which the scope of the EIS was to be decided.

2. No record c" decision was prepared for the Turkcy Point Project in violation of 40 CFR 1505.2.

These amendments refer to regulations promulgated by the Council for Environmental Quality (CEQ) pursuant to Execr4've 48/

Order No. 11,991,~~ adopted May 24, 1977.

The Licensing Board rejected proposed amendments 1 and 2 on the ground that "the Staff was governed by the provisions of 10 CFR Part 51, not the CEQ regulations as alleged by the Intervenor, in preparing and issuing a Final Environmental Statement." May 28 Order, p. 9. That holding was clearly correct.

10 CFR Part 51 was first promulgated July 18, 19?4, 39 Fed. Reg. 26279, prior to the issuance by the CEQ of the regulations cited by the Intervenor. Part 51 " sets forth 47/ May 28 Order, pp. 8-11.

48/

~~

3 CFR 123 (1977), reprinted in 42 U.S.C. S 4321 (1977),

amending Executive Order No. 11514.

s

the Nuclear Regulatory Commission policy and procedures for the preparation and processing of environmental impact statements and related documents pursuant to Section 10. (2) (C) of the National Environmental Policy Act of 1969 [42 U.S.C.

r 4332(C)] in connection with the Commission's licensing and regulatory _ activities." 10 CFR S 51.l(b) (1981). Subsequently, Executive Order No. 11,991 directed that federal agencies shall " comply with the regulations issued by the Council [on Environmental Quality] except where such compliance would be inconsistent with statutory requirements." However, the Nuclear Regulatory Commission is an independent regulatory commission. Energy Reorganization Act of 1974, S 201, 42 U.S.C. S 5841. As such, all presidential directives do not have the same impact upon it as they may have on executive agencies. See Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935); ,see also Weiner v. United States, 357 U.S. 349 (1958).

In response to the promulgation of regulations by the CEO, the Commission determined "'that a sound accommodation can be reached between NRC's independent regulatory responsi-bilities and CEQ's objective of establishing uniform NEPA procedures,'" and the Commission published a proposed revision of 10 CFR Part 51 "to take account voluntarily, ,

subject to certain conditions," of the regulations of the j f

45 Fed. Reg. 13739 (March 3, 1980). However, the CEO.

E

e. .

Commission also stated that "[u]ntil a final rule is adopted, the Commission's present regulations will remain in effect."

45 Fed. Reg. at 13740. A final rule has not yet been adopted by the Commission.

Thus, it is readily apparent that the Commission has not yet adopted the regulations of the CEO, that the Commission does not consider itself bound by the regulations of the CEQ, and that the existing 10 CFR Part 51 governs the procedures for preparation and issuance of an EIS by the NRC Staff.

Consequently, a proposed contention which alleges that the NRC Staff failed to abide by the regulations of CEQ is an attack upon the Commission's regulations in 10 CFR Part 51, and the Licensing Board properly rejected proposed amendments 1 and 2. See 10 CFR S 2.758(a); Potomac Electric Power Co.

(Douglas Point Nuclear Generating Station, Unit 1 and 2), 8 AEC 79, 88-89 (1974).

Nevertheless, with respect to proposed amendment 1, the NRC Staff in fact provided the Intervenor and the public substantial opportunity to participate in a scoping process suggested by 40 CFR S 1501.7 ir. order to determine the scope of the EIS. In these proceedings, copies of the correspon-dence between the Licensee and the NRC related to the repairs have been provided to the Intervenor. On June 29, 1979, the Staff issued its EIA with appropriate notice to the public.

In December 1980, the Staff issued its DES for

public comment. After a large number of comments, including those of the Intervenor, were received and specifically addressed by the NRC Staff, the Staff issued its-FES in P

March 1981.

With respect to proposed amendment 2, 40 CFR S 1505.2 could not have been violated because a public record of decision could not possibly have been prepired by the Licensing Board until after its decision on the proposed repairs was nade. See 40 CFR S 1505.2 (1980); 40 CFR S 1506.10 (1980); see also proposed 10 CFR S 51.102 (c) , 45 Fed. Reg. 13739 (March 3, 1980).

--- r v

II.

THE FES, IN PARTICULAR, THE EVALUATION OF ALTERNATIVES, COMPLIES WITH NEPA (EXCEPTIONS 2, 3, 4, 5, 6, 7,

.10, 11 and 12).

Intervenor's' Exceptions 2,'3, 4, 5, 6, 7, 10, 11 and 12 all relate to the legal sufficiency of the scope of the FES prepared by the NRC Staff in connection with the steam generator repairs, in particular the evaluation of alter-natives, and will be considered together.

These exceptions state as follows:

2. The board erred in ruling that consideration of the use of solar energy and productive conserva-tion was a replowing of the same ground previously assessed-in NRC licensing procedures. Paragraphs one and two on p. 10 of the order.

3. The board erred in ruling that the scope of the FES encompassed the environmental impact analysis required by NEPA. First paragraph on p. 11 of the order.

4. The board erred in ruling that the alternative commitment of resources suggested by the intervenor are remote and speculative possibilities. Last para-graph on p. 14 and first paragraph after the quo-tation on p. 15.

5. The board erred in finding that when the repair costs are compared with the costs of continued opera-tion in a derated mode there will be a savings of

$380 MILLION. Last paragraph on p. 15 of the order.

6. The board erred in ruling that the alternatives of solar energy and productive conservation were

. beyond the scope of the required environmental re-view. First full paragraph on p. 21 of the order.

7. The board erred in ruling that the FES contains a good faith reasonable review of alternatives as required by NEPA. First full paragraph on p. 21 of the order.

10. The board-erred in ruling that contentions re-garding conservation and solar energy are irrelevant and beyond the scope of issues that may be considered in this license amendment proceeding. First para-graph on p. 28 of the order.

11. The board erred in ruling that the issue of considering the alternative of productive conservation and solar energy in combination with derating the plant does not directly arise from the proposed amendment to the license.

First paragraph on p. 28 of the order.

12. The board erred in ruling that the con-sideration of the alternatives of solar power ar.d conservation would amount to an irrelevant reconsideration of the need for power from Turkey Point. First paragraph on p. 29 of the order. i The Intervenor's principal argument appears to be that the NRC must consider the alternatives of solar energy and conservation in conjunction with the derating of Turkey Point. The Licensing Board held that such consideration was not required. May 28 Order, pp. 28-29.

Initially, it should be noted that a contention that the FES must consider the alternative of solar energy and conservation in conjunction with derating has not been admitted into this proceeding. See May 28 Order, pp. 19-21, 24-26. The only proposed amendments which pertain to con-sideration of alternatives are proposed amendments 10, 11 and 12. These proposed amendments state:

10. The entire EIS fails to comply with a good faith consideration as is required under NEPA.

11. The analysis of alternatives is in-adequate under NEPA.

13. The EIS fails to adequately discuss the alternatives to the proposed action.

The Licensing Board rejected these proposed amendments on the ground that they contain " bare conclusions, devoid of any description of bases or reasons for the statements."

May 28 Order, pp. 19-20. The Intervenor has not excepted to this ruling. After the deadline for filing proposed amendments to Contention 1 had expired, the Intervenor attempted to assert that Contention 1 should be read as encompassing an earlier rejected contention that the alternative of solar energy and conservation in conjunction with derating was 49/

inadequately considered. -- The Licensing Board ruled that this constituted an " attempted evasion of the final framing of contentions," and declined to accept this contention as part of Contention 1. May 28 Order, pp. 24-26. The Inter-venor has not excepted to this ruling. Thus, the Licensing Board has held, and the Intervenor has not disputed, that the Intervenor has never properly raised the issue of con-servation and solar energy in conjunction with derating.

Consequently, there is no need to consider this issue on its merits.

Moreover, the Licensing Board was correct in ruling that the NRC Staff was not required to consider conservation and solar energy in conjunction with derating as an alter-native in this license amendment proceeding. See May 28 Order, p. 28. It is firmly established that the scope o; an amendment proceeding is more limited than in an operating license proceeding. Consumers Power Co. (Big Rock Point 49/ Response to NRC Staff Objections to Proposed Amended Contention 1 and Licensee's Motion to Dismise Con-

~~

tention 1 (May 12, 1981), pp. 1-2. The Licensing Board had rejected Contention 10 on the ground that it fell within Contention 1. Order Relative to Contentions and Discovery (September 25, 1979), p. 4.

l l

Nuclear Plant) , ALAB-636,13 NRC 312 (1981); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266-267 n. 6 (1979); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46-47 n. 4 (1978), remanded on other grounds sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) ;

see Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 383, aff'd, ALAB-470, 7 NRC 473 (1978).

More particularly, a consideration of alternatives in an amendment proceeding need not include evaluation or alteratives to operation of the plant, even though the amendment might be necessary to enable continued reactor operation. As the Appeal Board has stated in Prairie Island:

Because the practical effect of not now increasing the capacity of the Prairie Island spent fuel pool would be that that facility would have to cease operation, the MPCA ap-pears to believe that what is being licensed is in reality plant operation. Therefore, ac-cording to MPCA, the license amendment could not issue without a prior exploration of the environmental impact of continued operation and the consideration of the alternatives to that operation (e.g., energy conservation). We do not agree. The issuance of operating licenses for the two Prairie Island units was pres.ded by a full environmental review, including the consideration of alternatives. See LBP-74-17, 7 AEC 487 (1975), affirmed on all environmental questions, ALAB-244, 8 AEC 857 (1974). Nothing in NEPA or in those judicial decisions to which our attention has been directed dictates that the same ground be wholly replowed in connection with a proposed amendment to those 40-year operating licenses. Rather, it seems manifest

+ ..

- 28=-

to us that-all that need be undertaken _is a consideration of whether the amendment itself

.would bring about significant environmental con-sequences beyond those previously assessed and, if so, whether those consequences (to the extent unavoidable) would be sufficient on balance to

' require _a denial of the amendment application.

This is true irrespective of whether, by hap -

penstance, the particular amendment is necessary in order to enable continued reactor operation (although such a factor might be considered in balancing the environmental impact flowing from the amendment against the benefits to be derived from it) . 50/

Similarly, the need for power is not a valid issue in an amendment proceeding, if it was previously explored in the operating license proceeding. Portland General Electric Co.

(Trojan Nuclear Plant) , ALAB-534, 9 NRC 287, 289 (1979).

The purpose of the instant _ license amendment proceeding is to consider the steam generator repairs, not to consider operation of Turkey Point. See 42 Fed. Reg. 62569 (December-13, 1977). It is obvious that energy conservation and solar energy in conjunction with darating is an alternative to operation of Turkey Point and is not an alternative to the proposed repair of the Turkey Point steam generators.

Alternatives to operation of Turkey Point were previously the subject of an EIS, and operation of Turkey Point was found acceptable. ~~51/ NEPA does not require that "the same 50/ 7 NRC 41, 46-47, n. 4; the proposition that an operating license amendment is not in reality the authorization of plant cperation was recently re-affirmed in Big Rock Point, supra.

-~51/

Final Environmental Statement related to operation of Turkey Point Plant (July 1972), S X.

J

ground be wholly replowed in connection with a proposed amendment." Prairie Island, 7 NRC 41, 46 n. 4.

The Final Environmental Statement for operation of Turkey Point previously found a need for power from Turkey Point. --52/ In fact, the " alternative of not providing the Applicant's system with the block of power represented by Turkey Point Units 3 and 4" was " considered an infeasible alternative" in light of the need for power. ~~53/ This finding is not subject to challenge in an amendment proceeding.

Trojan, 9 NRC 287, 289. That is so even if the challenge comes in the guise of a request to consider conservation.

See Consumers Power Co. (Midland Plant, Units 1 and 2) ,

CLI-74-5, 7 AEC 19, 23-24 (1974), rev'd sub nom. Aeschliman

v. NRC, 547 F.2d 622 (1976), rev'd sub nom. Vermont Yankee Nuclear Power Corp. v. NRDC, 425 U.S. 519 (1978).--54/

Consideration of conservation (as well as sclar power) would 52/ Id., S IX.

53/ IG., pp. X-1 to X-2.

Intervenor states that the Supreme Court in Vermont

~~54/

Yankee "placed the NRC on notice that in the future the question of energy conservation was to be con-sidered as an alternative in preparing environ-mental impact statements." In. Br., pp. 11-12.

The court actually stated that the concept of

" alternatives" was "an evolving one, requiring the agency to explore more or fewer alternatives as they become better known or understood." 435 U.S.

at 552-553. In any case, Vermont Yankee related to an operating license application, not to the subsequent issuance of an operating license amendment.

1 be tattamount to a' reconsideration (f the need for power from Turkey Point. ~~55/

Thus, prior rulings by the Appeal Board plainly establish that consideration of conservation and solar power in con-junction with derating would be inappropriate in this proceeding.

Intervenor does not address these precedents. Instead, he argues that consideration in this proceeding of conservation and solar energy would not be a replowing of the same ground previously asseceed in NRC licensing proceedings, because the FES issued for operation of Turkey Point did not consider solar energy and conservation. ~-56/However, Prairie Island stands for the proposition that prior decisions need not be reopened and reconsidered in connection with an environmental review of an amendment to an operating license.

The ruling in Prairic Island would be trivialized if, as the Intervenor would have it, the ruling only prohibited a reconsideration of the same information which was previously I

55/ The Intervenor argues that the Licensing Board erred in determining that the repairs would result in a savings of $380,000,000. See Exception 5. This argument is premised upon a consideration of conservation and solar  !

energy as an alternative which would obviate the need for operation of Turkey Point. See In. Br., pp. 15-16.

However, as previously demonstrated, such a consideration would be outside the scope of this proceeding. Consequently, the Intervenor's argument must fail. It should also be noted that this argument is suspect because it is based upon the unsupported assumption that environmental and cost considerations would lead FPL to derate Turkey Point in a situation of excess capacity, rather than repair and operate Turkey Point and shut down one or more of its fossil units.

56/ In. Br., pp. 9-10.

reviewed. Obviously, information regarding alternatives to operatica of nuc~. plants is constantly being developed, and the practical effect of The Intervenor's argument would be to_ permit constant reconsideration of the basic decision to license plant operation. This is contrary to the import of the Prairie Island decision.

The necessity for limiting the scope of cnvironmental review of alternatives under NEPA has also been recognfzed in federal judicial decisions. See, e.g., Cobble Hill Association v. Adams, 470 F. Supp. 1077 (E.D. N.Y. 1979);

Westside Property Owners v. Sc hlesinger , (597 F.2d 1214 (9th_Cir. 1979); State of Illinois ex rel. Scott v.

Butterfield, 396 F. Supp. 632 (N.D. Ill. 1975). In Cobble Hill Associates v. Adams, supra, defendant Department of Transportation (DOT) allocated federal funds for a repair of the " sadly deterior'ted" Brooklyn Queens Expressway (BQE). The repair was i. sssary if the BQE was to remain functional. The plaiatirfs contended that the defendants had not adequately considered alternatives, such as abandoning i

the repair in favor of construction of a new highway at a different location. The court stated:

Plaintiff's final argument--that defendants did not adequately consider alternatives to their action--is without merit. Having de-cided to repair the existing highway in ac-cordance with c eplicable law--which we con-sider an unass 11able judgment given the condition of tne BQE and defendants' reasonable l

l l

i

x desire to keep it functional--defendants were under no obligation to consider alternatives to repair such as the construction of a new ~

highway.

470 F. Supp. ot 1088 (emphasis in original). -~57/

It has also been held that an EIS prepared in connec-tion with an expansion or change of an existi- f aci l.:.ty need not discuss the environmental effects OJ mere continued operation of the facility. Westside Properif Owners v.

Schlesinger, 597 F.2d at 1217-1218; See State of Illinois ex rel. Sc3tt v. Butterfield, 396 F. Supp. at 640.

In addition, where an EIS has already been prepared in an earlier proceeding, no purpose would be served by dup-licating the environmental review performed in that pro-ceeding. San Antonio v. United States, 631 F.2d 831, 853 (D.C. Cir. 1980). In the instant proceeding, the review required under NEPA is more limited than that required for the original construction and operativ4 of the Turkey Point facility. Accordingly, the Licensing Board did not err in 57/ This ruling should be contrasted with Save the Niobrara River Association v. Andrus, 483 F.

Supp. 844 (D. Neb. 1979), cited by Intervenor, see In. Br., p. 17, in which the court held that an EIS reviewing the proposed construction and operation of a new dam must considor alternatives which would obviate the need for operation af the dam. 483 F. Supp. at 861-862. IIowever, this case is clearly inapposite, since its holding is analogous to a holding that conservation must be considered as an alternative to construction and operation of a new nuclear power plant (an issue not in dispute in this proceeding).

~ .

m O O ruling that the alternatives of energy conservation and solar energy in conjunction with derating were beyond the scope of the required environmental review. See May 28 Order, pp. 21, 28, 29.

The cases cited by the Intervenor are not inconsisten.

with these decisions. In fact, the cases cited by the Intervenor are not even relevant, since they merely state general priaciples of law which have developed under NEPA.

Not one the Intervenor's cases presents a factual situation which is remotely analogo .s to the instant proceeding or offers any guidance as to whether the NRC is required in this proceeding to reconsider alternatives to operation.

See In. Br., pp. 17-19.

The Licensing Board was also correct in finding, contrary to Exceptions 3 and 7, that the FES contains a good faith reasonable consideration of the environmental impacts of the steam generator repairs and of the alternatives as mandated by NEPA. May 28 Order, pp. 10-11, 19, 21. If the Inter-venor points to any evidence of such lack of good faith at all, it is to the failure of the FES to address conservation and solar power. As is demonstrated above, that contention is without merit, and the " good faith" argument falls with it. Thus, further discussion of these exceptions is un-necessary.

Nevertheless, if the Intervenor is alleging that the FES is inadequate on grounds unrelated to conservation and solar power, he has provided no support for such an allega-tion. In fact, it is apparent that such an allegation would lack merit.

The FES discusses extensively the background for the steam generator repairs (S2), the proposed repair method (S3), the environmental impacts (including postulated accidents) (54) and alternatives to the repairs (SS), and includes a cost-benefit analysis (56) and the NRC Staff's responses to all comments received (58). See PES. With respect to the consideration of alternatives in the FES, the NRC Staff considered four dif ferent methods of repair, the alternative of continuation of the present mode of operation (leading to eventual derating), and the alternative of decommissioning the Turkey Point Units and replacing them with units of a different design (nuclear, fossil fuel and gas turbine). The NRC Staff also considered six alternative methods of disposal of the used steam generator lower as-semblies (SGLAs) during the repairs. See FES, pp. 5 5-7. The consideration of these alternatives in the FES is sufficiently detailed to permit a reasoned choice of al-ternatives. See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 163 n. 24 (1978); Sierra Club

v. Morton, 458 F.2d 827, 836 (D.C. Cir. 1972).

Under the NEPA " rule of reason," the NP.C Staff is only required to "make a good faith effort . . . to describe the reasonably foreseeable impact" of a proposed action.

Long Island Lighting Co. (Shoreham Nuclear Power Station),

l

ALAB-156, 6 AEC 831, 838 (1973); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station) , . ALAB-161, 6 AEC 1003, 1011.(1973); County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375 (2d Cir. 1977), cert.

denied, 434 U.S. 1064 (1978). In a license amendment proceeding, "all that need be undertaken is a consideration whether the amendment itself would bring about significant environmental consequences beyond those previously assessed and, if so, whether those consequences (to the extent unavoidable) would be sufficient on balance to require a denial of the amendment application." Prairie Island, ALAB-455, 7 NRC 41) 46 n. 4; Trojan, ALAB-531, 9 NRC 263, 266 n. 6. With respect to the consideration of alternatives under NEPA, the alternatives that must be considered need not extend beyond those reasonably related to the purposes of the project. Trout Unlimited v.

Morton, 509 F.2d 1276, 1286 (9th Cir. 1974). What is requirec is information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned.

Midland, 7 NRC 155, 163 n. 24; Sierra Club v. Morton, 458 F.2d at 836. The FES contains this information, and clearly the Licensing Board did not err in ruling that the FES complied with-NEPA requirements for a good faith consideration of the environmental impacts, including a discussion of reasonable alternatives. May 28 Orier, p. 10-11, 19, 21.

4 I-

I' 'a

.36 -

III.

THE LICENSING BOARD DID NOT ERR IN RULING THAT THE PROPOSED STEAM GENERATOR REPAIRS DO NOT. MATERIALLY ALTER THE ENVIRONMENTAL IMPACTS OF THE TURKEY POINT FACILITY OR ITS SITE (EXCEPTION 8).

Exception 8 states:

The board erred in ruling that the proposed steam generator repairs do not materially alter the environmental impacts of the facility or its site. Second paragraph on p.-22 of the order.

This exception relates to the Licensing Board's ruling on proposed amendment 14 to Contention 1, which states in its entirety and without further elaboration or explanation.

l The EIS fails to adequately discuss the relation-ship between local short term use of man's en-vironment and maintenance and enhancement of the long term productivity.

The Licensing Board ruled that the proposed amendment lacked sufficient specificity under 10 CFR S 2.714(b) and failed to plead a cognizable contention. May 28 Order, p.

28. Intervenor failed to except to this ruling. Instead, the Intervenor has excepted to the Board's general ruling that the repairs will not materially alter the environmental

' impacts of the facility or its site. In support of this exception, the Intervenor now appears to argue for the first time with respect to proposed amendment 14 that storage of the steam generator lower assemblies (SGLAs) at Turkey Point, of other waste.already in drums on site, and of the waste to be generated from the repairs will " result in a

', s.

longft'erm storage facility for radioactive waste.at Turkey Point"; and he also argues that the Licensing Board's con-clusion that such a facility will have no environmental impact "is. speculative at best." In. Br., pp. 19-20. This is precisely the tactic which we pointed out at the outset of this argument and which both the Supreme Court and the Atomic Safety and Licensing Appeal. Board.have determined to be impermissible. -

Moreover, the Licensing Board was clearly correct when it noted that the Turkey Point plant site was already dedicated to the nuclear generation of electricity, and thus, the proposed steam generator repairs will not change or materially alter the size, use, or environmental impacts of the Turkey i

Point facility or its site. May 28 Order, p. 22. The FES evaluates the environmental impact of on-site storage of the SGLAs and of the generation of solid low-level waste by the repair and concludes that neither will be environmentally significant. FES, SS 4.1.2.2 and 4.1.2.4. After the issuance of the FES, the NRC Staff moved for summary disposition of Contention 1, including proposed amendment 14, and of Contention 4B. --58/ In response to the NRC Staff's motion, the Intervener i submitted the Affidavit of Douglas King on Contention 4B l (May 13, 1981),-~59/which merely states that the affiant i

--58/

See NRC Staff Objections to Proposed Amended Contention

.1 and Third Motion'for Summary Disposition (April 27, 1981).

59/ Attached to Intervenor's Answer Opposing the Motion for Summary Judgment (May 19, 1981).

I t

- .- - , . , , . , , , .m --.,- . -__, _ .-_ . .

had " observed several locations of loosely stacked, sealed drums" containing radioactive material at Turkey Point and _

that he was " professionally concerned that the' ability of the' sealed drums to completely contain the radioactive  !

wastes will diminish" due to " natural weathering forces."

The Intervenor never presented any information that would ,

. indicate that either storage of the SGLAs on-site or-temporary retentior,of low-level waste on-site as a result of the repairs would produce any detectable environmental impact, and there is nothing in the record which supports an allegation ,

that.either-would materially alter the environmental impacts .

r attributable to the Turkey Point plant. Therefore, the jl

+

Licensing Board properly granted summary disposition of 1

proposed amendiaent 14, and the Intervonor's exception lacks merit.

IV.

c I

THE LICENSING BOARD DID NOT ERR IN ASSUMING THAT THE INTERVENOR BY PROPOSED AMENDMENT 16 MEANT I TO REFER TO THE ENVIRONMENTAL IMPACT RESULTING FROM THE INTERACTION OF A HURRICANE WITH I STEAM GENERATOR REPAIR ACTIVITIES (EXCEPTION 9). .

1 Exception 9 states: j The board erred in assuming that Intervenor, ,

by. Contention [ sic] 16 means to refer to the  !

environmental impact resulting from the inter-action of a hurricane with steam generator re- ,

l pair activities. Last paragraph on p. 22 of the order. t This exception relates to proposed amendment 16 to Contention.  :

1, which states: ,

t I

7

- 39 -

The final EIS fails to adequately discuss the environmental impact of a hurricane if one occurs during the repair process.

Intervenor's argument is that the EIS did not include a discussion of the enviro., mental impact resulting from the interaction of a hurricane with low-level wastes produced by the steam generator repairs and stored on site for a term extending beyond the completion of the actual repairs. In.

Br., p. 20. However, Intervenor's proposed amendment 16 specifically addresses the question of. whether the FES con-sidered "the environmental impact of a hurricane if one occurs during the repair process" (emphasis added), and not the impact of hurricanes occurring subsequently to the repairs.

Furthermore, the Intervenor did not raise this issue in response to the NRC's motion for summary disposition directed to Contention 1, as amended. See Intervenor's Answer Op-posing Motion for Summary Judgment (May 19, 1981), pp. 1-11.

Neither the first King Affidavit nor the Pardue Affidavit referenced by the Intervenor in his brief, In. Br., p. 20, purports to address or even mentions proposed amendment 16 or the FES in this context. They both refer only to Con-tention 4B. Consequently, the Licensing Board correctly assumed that Intervenor, by amendment 16, meant to refer to the environmental impact resalting from the interaction of a hurricane with steam generator repair activities. See May 28 Order, pp. 22-23.

<40 -

It is submitted.that-the foregoing is. dispositive of Exception 9. Nevertheless, it may be' appropriate to note

.that the entire question raised by this exception.and In-tervenor's supporting argument is immaterial to an evalua-tion of the safety and safety-related-environmental' impacts-of the repairs. For example, the Licensee performed three comprehensive safety analyses related to hurricanes, all of which postulated a strike of a hurricane at such a time that-any resultant. release would be maximized. The first analysis assumed, with respect to storage of the SGLAs, that a hur-ricane would strike as soon as all six SGLAs were placed in the steam generator storage compound (SGSC). ~~60/ The second analysis assumed, with respect to movement of an SGLA, that a hurricane would strike while the SGLA is unprotected. ~~61/

The third analysis, submitted in response to the May 28 Order, assumed that a hurricane would strike when the amount of low-level waste on site, as a result of the repairs, is

--C ?./

greatest. The NRC Staff made similar assumptions in 60/ Affidavit of Frederick G. Flugger and H. H.

Jabali on Contention 4A, pp. 7, 10-11 at-tached to Licensee's Answer Supporting NRC Staff Motion for Summary Disposition of Contention 4A (April 17, 1981).

61/ Affidavit of F. G. Flugger and H. H. Jabali a; 3 P. K..Wan on Contention 4B, pp. 11-13, ttached to Licensee's Response in Support of NRC Staff Motion for Summary Disposition of Contention 4B (May 5, 1981).

~~62/ Affidavit of Alan J. Gould, pp. 8-11, attached to letter from Norman A. Coll to Atomic Safety and Licensing Board-(June 12, 1981).  :

Lits analysis, --63/ and the~ Licensing Board relied upon both

> Licensee's and NRC Staff's analyses in making its deter-

-~64/

-minations. Since the analyses contain worst-case assumptions regarding the timing of a hurricane, considera-tion of other times for a hurricane strike could not affect

the. conclusions made in these analyses. Therefore, the timing of a-hurricane strike is irrelevant to an evaluation of the safety or environmental impacts of the repairs.

V.

THE LICENSING BOARD DID NOT ERR IN GRANTING

SUMMARY

DISPOSITION OF CONTENTION 4B (EXCEPTION 13).

Exception 13 states:

The Board erred in summarily dismissing Contention 4B and simultanecusly finding that the record is not'sufficiently developed to enable to [ sic] board to rule with finality on the subject of storage of loosely stacked,-sealed drums in roped off areas at the plant site. Foot-note 54 on p. 37 and the first paragraphs on p. 40.

The Intervenor is arguing that the Licensing Board was in-consistent in simultaneously finding no genuine issue of

--63/ Affidavit of Robert F. Abbey, Jr. on Contention 4B, pp. 5-8, attached to NRC Staff Objections to Proposed Amended Contention 1 and Third Motion for Summary Disposition (April 27, 1981).

--64/. Order (May 7, 1981); May 28 Order, pp. 23, 30-36; _

Final- Order (June '19,1981) , pp. 2-6.

'l

. material-fact on Contention 14B and finding that the record was insufficient with respect to the storage of low-level solid waste at the Turkey Point site. The record in this proceeding indicates the Licensing Board's position was not

' inconsistent.

Both the NRC Staff and-the Licensee submitted affi-I' davits in support of the NRC Staff's motion for summary 65/

disposition of Contention 4B. These affidavits demonstrate that an SGLA drop accident is the worst-case accident that i

can be associated with the interaction of a hurricane or J

tornado at the Turkey Point site during the proposed repair activity, and that the consequences of such an accident during a hurricane or tornado would be within the limits of 10 CFR Part 20, limits "which are applicable to normal reactor operation, rather than accident conditions." May 28 Order, pp. 35-36; Flugger Affidavit, pp. 4, 15-17; Abbey Affidavit, pp. 7-8.

The Intervenor submitted two affidavits on Contention 65/ Affidavit of Robert F. Abbey, Jr. on Contention 4B

~~

( Abbey Af fidavit) , attached to NRC Staf f objections to Proposed Amended Contention 1 and Third Motion for Summary Disposition (April 27, 1981); Affidavit of F. G. Flugger and H. H. Jabali and P. K. Wan on Contention 4B (Flugger Affidavit), attached to Licensee's Response in Support of NRC Staff Motion for Summary Disposition of Contention 4B (May 5. 1981).

e 66/3

~~

~

~4B. Douglas King stated'in his affidavit that during a site inspection of Turkey Point he had " observed several lo-cations of loosely stacked, sealed drums" containing radio-active materials "which were subject to weathering and other natural forces." King Affidavit, pp. 1-2. Leonard G.

Pardue stated in his affidavit that "[dluring a strike of~a

~

major hurricane, objects, such as loosely stacked drums, can be scattered by the hurricane and can receive mechanical shocks from collisions with other objects." Pardue Affidavit,

p. 3. And, Douglas King states that he was " professionally concerned that the ability of the sealed drums to completely contain the radioactive wastes will diminish" during long-term storage and under storm conditions. King Affidavit, pp. 2-3. However, neither affiant stated that a release of radioactivity from solid waste stored on-site as a result of

~

the interaction of the repairs with a hurricane or tornado is likely to occur; neither contradicted the assertion that an SGLA drop accident is the worst-case accident that can be associated with the interaction of a hurricane or tornado _

with the Turkey Point site during the repair project; and neither contradicted the conclusion that the consequences of an accident during a hurricane or tornado would be within 10 9 CFR Part 20 limits. Thus, the- NRC Staff and the Licensee 66/ Affidavit of Douglas King on Contention 4B (King Affidavit) and-Affidavit of Leonard G. Pardue on i

Contention 4B - (Pardue Af fidavit) , attached to In-l tervenor's. Answer Opposing the Motion for Summary

l. Judgment'(May- 19, 1981).

w - ,,,. -- .m y - --

.44_

established, and the Intervenor submitted no information to the contrary, that there are not likely to occur radioactive releases from the steam generator repair to unrestricted areas which violate 10 CFR Part 20 or are not as low as reasonably achievable within the meaning of 10 CFR Part 50 as a result of.a hurricane or tornado striking the site during the repairs. Under these circumstances, there was no genuine issue of material fact, and the Licensing Board was correct in granting summary disposition of Contention 4B.

It was immaterial to summary disposition of. Contention 4B that estimates had not then been presented of the precise amounts of radioactivity from solid low-level waste attribut-able to the repair which could be hypothetically released during a hurricane or tornado. The NRC Staff's and the Licensee's affidavits presented a worst-case analysis and 67/ It is apparent that the Intervenor's confusion regarding the proper standard for granting summary disposition lies at the heart of this exception. As stated in 10 CFR S 2.749 (d) , a party is entitled to summary disposition if "there is no genuine issuu as to any material fact and . . . the moving party is entitled to a decision as a matter of law." In contrast, the Intervenor, mistakenly relying upon Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978), states that ,

the " standard for ruling on a motion for summary dis-position is whether the intervenor has made a showing, l in support of his contentions, that are [ sic] sufficient -

to require reasonable minds to inquire further." In.

l Br., p. 22. However, even a cursory reading of Vermont Yankee reveals that the standard cited by the Intervenor is only applicable to a determination of whether to ad-

! mit a proffered contention, and not whether to grant summary disposition of an admitted contention.

l l

.A 4 found it to be acceptable. Admission of testimony in con-nection with any ' conceivable lesser event would have need-lessly expended the time and effort of the parties and the Licensing Board without affecting the ultimate decision on Contention 4B. Even though the Licensing Board called for additional information concerning the handling, storage and disposition of the solid low-level wastes, this did not present a genuine issue of material fact concerning Con-tention 4B. As long as the adjudicator has before it all essential facts necessary for a decision, a slight variance in a few minor details between matters on the record is unimportant to a ruling on a motion for summary disposition.

Riedel v. Atlas Van Lines, Inc., 272 F.2d 901, 905 (8th Cir. 1959), cert. denied, 362 U.S. 942 (1960).

Finall), it was not inconsistent for the Licensing Board to dispose of Contention 4B while directing the parties to submit " detailed information concerning the handling, storage, transportation or other disposition to be made of low-level solid waste that may be produced at the Turkey Point facility as a result of the proposed steam generator repairs." May 28 Order, p. 42. Contention 4B dealt with the narrow issue of whether radioactive releases from the repairs in violation of 10 CFR Parts 20 and 50 were likely i

to occur during a hurricane or tornado, and sufficient

< information existed on the record for the Licensing Board to dispose of this contention. In contrast, the Licensing Board's direction dealt with the much broader matter of

J

" handling, storage, transportation or other disposition" of -

the solid waste generated during the repairs. The Licensing Board had the authority under 10 CFR S 2.760a to explore this matter further. This constituted neither an improper, nor_an inconsistent, action by the Licensing Board.

The Licensing Board therefore invited all parties to submit information and affidavits on this matter. May 28 Order, p. 42. Following the Licensing Board's review of the information filed by all parties, including the Intervenor, the Board found that "the impact of a hurricane or tornado on the LLW produced by the steam generator repairs and stored temporarily on site at Turkey Point will not pcse a significant radiological hazard to the public." Fina' 'rder (June 19, 1981), p. 6. A review of the information sub-mitted demonstrates that the Licensing Board was justified in making its determination. --68/

VI.

A " PROGRAMMATIC" EIS IS NOT REQUIRED FOR THE TURKEY POINT STEAM GENERATOR REPAIRS (EXCEPTION 14).

U i

Exception 14 states:

~~68/ The Affidavit of Alan J. Gould (June 12, 1981), sub-mitted by Licensee, demonstrates that even if extremely conservative assumptions are made, the dose resulting from a release of radioactivity to the environment from lou-level solid waste produced by the repairs due to the impact of a hurricane or tornado would be less than that_which had previously been estimated for the various possible limiting accidents and would be within 10 CFR Part 20 limits (which are only applicable to normal reactor operation). See Affidavit of Alan J. Gould (June 12, 1981). The Affidavit of Marshall Grotenhuis on Low-Level Solid Waste Management (June 9, 1981) , submitted

.by the NRC Staff, also supports these findings, and the Intervenor submitted no information.to the contrary.

~- 4 7 -

The board erred in ruling that Amendment 3 to Contention 1 does not state a cognizable contention.

First paragraph on p. 22.

This Exception' relates to proposed amendment 3 to Contention 1 which states:

The EIS is not a programatic-[ sic] EIS and a programatic [ sic] EIS is required as a result of the steam generator repairs that would be required nationally.

The Licensing Board held that proposed amendment 3 "does not ,

state a cognizable contention, and it is also subject to summary disposition." May 28 Order, p. 12.

The Licensing Board ruled that proposed amendment 3 does not state a cognizable contention because no legal or factual basis was offered by the Intervenor for the con-clusion that a progratmatic EIS is required for the steam ger.erator repairs. In fact, prior to the Licensing Board's May 28 Order, the Intervenor offered no information in support of proposed amendment 3. Since the Intervenor was obligated in the first instance to submit his basis for proposed amendment 3 to the Licensing Board, he cannot now-rely upon his brief as a vehicle for providing the requisite basis. See Prairio Island, ALAB-244, 8 AEC 857, 864.

The Licensing Board ruling was correct under 10 CFR S 2.73 4 (b) ,

and proposed amendment 3 was properly rejected.

In addition, the Licensing Board correctly granted summary disposition of the proposed amendment. A 69/ The Intervenor did not.except to this ruling.

, - - . ~+ ,- _- .,

,-.,,-e.,

g y --n , y

" programmatic" or " comprehensive" EIS is required for several activities if there is a single proposal for Federal action regarding those activities or if there are several proposals pending currently before the agency with respect to activities which will have a cumulative or synergistic environmc. ital impact. Kleppe v. Sierra Club, 427 U.S. 390, 399, 409-410 (1976). Neither of those situations is present in the instant case. The Licensee's proposal for the Turkey Point steam generator repairs is not part of a proposal to conduct such repairs on a national basis. Moreover, the FES clearly indicates, and the Intervenor has not alleged to the contrary, that any environmental impacts attributable to the Turkey Point repairs will only occur on a local, and not a national basis.

Intervenor also suggests, for the first time here, that the cumulative effects of all steam generator repairs "will create an environmental impact that is larger and different in kind from any of the individual decisions." In. Br., p.

24. This statement is made without identifying any environ-mental impact "which is larger and different" than the total impacts from the individual decisions. Such speculation can be expressed about any group of somewhat similar but in-dividual actions. It does not, without further support, establish the need for a national programmatic EIS before the. Turkey Point repairs may be authorized. This result

r s v.

is fully consonant with NP.C decisions with respect to activities similar to the Turkey Point repairs.

CONCLUSION Licensee submits that the Intervenor's Initial Ex-ceptions are without merit and requesLs that the Licensing Board's Memorandum and Order of May 28, 1981, be affirmed.

Respectfully submitted,

[

Hhrold F. Reis Steven P. Frantz

' LOWENSTEIN, NEWMAN, REIS & AXELRAD 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8400 Norman A. Coll William L. Courshon STEEL HECTOR & DAVIS 1400 Southeast

! Fir't National Bank Building 1

Miami, Florida 33131 Telephone: (305) 577-2800 Dated: August 12, 1981 i

1 70/ In Virginia Electric and Power Co. (Surry Power Station, Units 1 and 2), DD-79-19, 10 NRC 625, 639-42 (1979), the Director held that the Surry steam generator repairs did not require a programmatic EIS. The Director stated that "[t]he Surry Project . . . does not involve a decision with auch wide ramificationa. Rather, it results from an agency determination made en the basis i cf the facts of the particular case." This decision was not disturbed by the Commission up7n review.

CLI-80-4, 11 NRC 405 (1980). Similarly, the Appeal Board has held that an amendment to an operating license to permit a spent fuel pool modification did not require i a programmatic EIS, since such an expansion would only produce a local environmental impact. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 267-68 (1979).

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o i

I

v' -l j e' * -

t UNITED STATES OF AMERICA >

NUCLEAR REGULATORY COMMISSION _

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD-In the Matter of ) Docket Nos. 50-250-SP

) 50-251-SP FLORIDA POWER & LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear ) Facility Operating License Generating Units Nos. 3 ) to Permit Steam Generator and 4) ) Repairs)

CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT copies of the foregoing " Licensee's Brief in Opposition to Intervenor's Initial Exceptions,"

dated August 12, 1981, were served on the individuals whose names appear on the attached service list by deposit in the United States mail, first class, properly stamped and addressed, on this 12th day of August, 1981.

/

/ /5~

Harold F. Reis Lowenstein, Newman, Reis &

Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Telephone: (202) 862-8410 Attachment August 12, 1981

a n o, UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of ) Docket Nos. 50-250-SP

) 50-251-SP FLORIDA POWER & LIGHT COMPANY )

) (Proposed Amendments to (Turkey Point Nuclear ) Facility Operating License Generating. Units Nos. 3 ) to Permit Steam Generator and 4) ) Repairs)

SERVICE LIST Alan S. Rosenthal, Esq.

Chairman, Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 4

Dr. W. Reed Johnson I Atomic Safety and Licensing Appeal Board U.S. Nuclear. Regulatory Commission Washington, D.C. 20555 Thomas S. Moore, Esq.

Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington,-D.C. 20555 Marshall E. Miller, Esq., Administrative Judge Chairman, Atomic Safety and Licensing Board

. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Emmeth A. Luebke, Administrative Judge Atomic Safety and Licensing Board .

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Oscar H. Paris, Administrative Judge Atomic Safety and Licensing Board t U.S. Nuclear Regulatory Commission Washington, D.C. 20555

~

Mr. Mark P. Oncavage 12200 S.W. 110th Avenue Miami,' Florida' 33176 i.

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g -'+T 1' --- , r,- 7

( . - .-

Service List Page Two Norman A. Coll, Esgo Co-Counsel.for Licensee Steel, Hector & Davis 1400 Southeast First National Bank Building Miami, Florida 33131 Steven C. Goldberg, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regu2.atory Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Burt Saunders, Esq.

Assistant Dade County Attorney 1626 Dade County Courthouse Miami, Florida 33130 Neil Chonin, Esq.

1400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131 Henry H. Ilarnage, Esq.

Peninsula Federal Building 10th Floor 200 S.E. First Street Miami, Florida 33131 L

N