ML20116M467
| ML20116M467 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 11/16/1992 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| CON-#492-13369 2.206, NUDOCS 9211200287 | |
| Download: ML20116M467 (28) | |
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UNITED STATES OF AMERICA EE - A NUCLEAR REGULATORY COMMISSION g
. . .E .v Before the Director, Office of Nuclear Reactor Regulstion'!' '
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In the Matter of )
THE CLEVELAND ELECTRIC
) Dockec No. 50-440 h M } j
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ILLUMINATING COMPANY, ET AL. )
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(Perry Nuclear Power Plant) )
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LICENSEES' RESPONSE TO THE LAKE COUNTY BOARD OF COUNTY COMMISSIONERS' 10 C.F.R. S 2.206 PETITION _
The Cleveland Electric Illuminating Company and its co-owners 1/ of the Perry Nuclear Power Plant, Unit 1 ("Licens-ees"), hereby respond to the " Petition for Action to Relieve the Undue Risk Posed by the Construction for the Low Level Radioac-tive Waste Site at the Perry Plant" (the~" Petition") filed by the Lake County Board of County Commissioners (" Lake County") pursu-ant to 10 C.F.R. S 2.206.- In summary,T Lake' County (1) has not met the legal standards for initiation of a proceeding or-enforcement action under 10 C.F.R. S 2.206, (2) has provided no-evidence that the construction of a low level radioactive waste
("LLW") storage facility at Perry is a fundamental change in the operating license of Perry, and (3) has provided no basis to 1/ .CEI holds the operating license for the Perry Nuclear Power Plant, Unit 1 along with Centerior Service Company, Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Com-pany, and The Toledo Edison Company. q-9211200207 921116 j b
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,s support its request that construction of the storage facility be -
suspended until an environmental impact statement is prepared assessing the risks arising out of'the storage of LLW;at Perry or until NRC issues regulations governing storage of LLW.
I. Summary of Petition on September 29, 1992, Lake County filed the Petition with the Director, Office of Nuclear Reactor Regulation pursuant to 10 C.F.R. S 2.206. The Petition urges a public nearing be held prior to construction of a Low-Level Radioactive Waste Storage and Processing Facility ("LLW facility") at the Perry site,2/
that construction of.the LLW facility be suspended _until an_envi-ronmental impact statement is prepared assessing the risks asso-ciated with the storage of LLW at Perry and NRC institutes regu-lations regarding the on-site storage ~of radioactive waste.
As the basis for its requests, the~. Petition allegesLthat the LLW facility will not'in fact be temporary. The Petition--cites-2/ Lake County makes this request-despite having had-the oppor-tunity to attend two separate public meetings held in_ con-nection with1this very' issue. On August 24, 1992, Licensees voluntarily held a public' meeting pursuant-to Lake: County's-request. The members of the public who attended-that-_ meet-ing heard extensive presentations on the planned LLW facil-ity.at Perry by representatives of Licensees, NRC, the Mid-west ! Interstate Low-Level Radioactive Waste Commission, and Ohio LLW-generators,'and had a full opportunity-to ask ques-tionsoof the speakers. In addition, on October-1, 1992,'NRC
- conducted.a public meeting to1 explore the issues-surrounding the storage of LLW=at Perry at which members of_NRC head-l quarters and regional staffs answered numerous questions concerning-the-LLW facility.
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the alleged breakdown of the Midwest Compact,--and the failure of-Ohio to enact' enabling legislation for a permanent LLW waste dis-posal facility, as bases for the assumption that the LLW facility at Perry will in effect be a permanent disposal site. As a result, the Petition claims that Licensees must obtain 10 C.F.R. Part 30 licensing approval before constructing the facility. As further support for demanding an environmental impact statement, the Petition states that on-site s'orage of LLW was not contem-plated in Perry's original design, and thus not assessed in the Perry environmental impact statements. The-Petition also demands that NRC conduct an evaluation pursuant to 10 C.F.R. S 61.50.
None of the facts presented in Lake County's petition sup-port the relief sought; nor do.any of the cited FRC regulations.
apply to the LLW facility. Therefore, the Petition should be denied.
II. Description of the LLW Facility.
Licensees intend-to build the LLW facility-and use On Site Storage. Containers ("OSSC") to process and temporarily store low-level radioactive waste at Perry.2/ The storage portion _of the.
LLW facility -- the Radwaste Interim Storage Building (the "Stor-age-Building") -- will be constructed of pre-cast concrete wall-2/ A more complete description can be found in Safety Evalua-e tion No.92-161, the comprehensive 10 C.F.R. S 50.59 safety evaluation prepared in connection with the design'and con - ,
1 struction of the-LLW facility- .
h panels,'and will be approximately 66 feet wide by 100-feet long.
The maximum height of the Storage Building will be approximately 31 feet. The Storage-Building will be located approximately 44 feet east of the Discharge Entrance Structure, and approximately 270 feet south of the bluff above Lake Erie. The distance from the Storage Building to Perry's shore line protection system will be approximately 350 feet.
The west, north, and east walls of the Storage Building are composed of one foot thick concrete, providing adequate shielding to maintain-site boundary dose rates within the limits set out in Generic Letter 81-38. The use of twelve inch thick shield walls will assure that radiation levels (conservatively assuming a fully loaded Storage Building) will be negligible at the nearest land site boundary, which is approximately 2700_ feet away at the ,
west end of Lockwood Road in North Perry Village. A six inch thick pre-cast concrete plank roof over the Building will' shield against skyshine radiation. Finally, a two foot thick shield wall between the storage and processing facilities-is designed to keep radiation levels in the processing facility to as close to background radiation levels as possible.
The part of the LLW facility where LLW processing will take place -- the Processing Building -- will be a pre-engineered cold-formed steel structure with a stress skin steel panel side wall. It will be adjacent to the Storage Building, and its roof will be supported by the south wall of the Storage auilding. The
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_ 4 -l Processing Building will be 133 feet'long by 51 feet wide,-and at minimum will be twelve feet-high at_the cave of the building.
The shredder / compactor located within the Processing Building will be surrounded by a one foot thick concrete wall to minimize radiation exposure outside of the shredder / compactor room while '
the waste is being packaged. Finally, the columns, beams, and ceiling will be covered with a minimum of two layers of; drywall for fire protection purposes. The activities to be conducted in the Processing Building are already permitted under the plant's current operating license.
An OSSC is a concrete structure with heavy steel reinforce-ment. Each OSsc will have a removable lid that fully exposes the-available internal storage volume. Its mating surface will be gasketed with the main container and sloped-to prevent rain intrusion. Solidified and dewatered resin will be placed in the OSSC's in High Integrity Containers that are designed and certi-fied to maintain'their integrity for a minimum of 300' years.
Moreover, a back-up leakage protection system will be installed inside each OSSC, and sampling / drain capability will prevent inadvertent leakage.
In order to ensure shielding uniformity and-integrity, each OSSC is radiographed. Also, each OSSC is paintedninternally-fand externally with two coats of epoxy. paint for' easy decontamina-tion. The inherent strength designed into each OSSC, combined
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with its weight,.provides a structure that is earthquake-proof and tornado-proof.
The LLW facility has been designed to be consistent with the Ohio Basic Building Code Use Group U-4 (a hazards classification based upon the type of material stored in the facility, which includes radioactive materials) and Construction Classification Type 2-A (a construction classification based on fire resistance rating requirements of structural elements). The Use Group H-4/ Construction Classification Type 2-A requires that the facil-ity's structural lead bearing columns and all ceilings below 15 feet in height be provided with a two hour fire rated barrier.
In addition, the LLW facility is being constructed in accordance-with_(1) Seismic Zone 1 criteria for earthquake protection, and (2) all applicable building and fire codes and standards, includ -
ing but not limited to the Ohio Basic Building Code, National Electrical Code, and Ohio-Fire Code. The buildings are curbed and have no floor drains to external release points. Therefore, no potentially contaminated water may be' discharged directly to the environment.
External flooding has also been analyzed. The_ top ofJthe LLW facility curb is at the 623'3" elevation. The probable maxi-mum Lake Erie surge run-up would be 607.9', approximately 15 feet-below the curb. If the probable maximum precipitation for the site would occur and the storm drainage system were blocked, the site grade would prevent the water level-from exceeding 620'6",
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7; 2'9" below the curb. Moreover, if-the probable maximum-flood.for-the major stream that flows near the site werefto occur, a natu-ral ridge adjacent to the stream would channel the water away from the LLW facility.
1 III. No NRC Enforcement Action Is Warranted Because the Petition Does Not Raise Substantial Health and Safety Issues-Lake County has not met the NRC's legal standards for insti-tuting a proceeding under 10 C.F.R. S 2.206. The NRC will-insti-tute a proceeding to susptid a license or for other action as may be proper under S 2.206 only when the petition alleges "substan-tial health and safety issues." Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), DD-92-1, 35 NRC 133, 143-44 (1992); Washington Public PowerLSupply System (WPPSS Nuclear Project No. 2), DD-84-7, 19 NRC 899,'923 (1984);
Consolidated Edison Co. of New York (Indian Point, Units 1, 2, and 3), CLI-75-8, 2 NRC 173, 176 (1975). Courts interpreting S 2.206-have also applied this standard. See, e.g.,_ Florida Power & Light v. Lorion,-470 U.S. 729, 7321(1985) ("The Commis .
sion interprets S 2.206 as requiring issuance-of an order to show L
causa when a citizen petition raises ' substantial health ~or safety issues.'"); Lorion v. United-States Nuclear Regulatory Comm'n, 785 F.2d 1038, 1041 (D.C. Cir. 1986) (NRC-only required-
- . to issue a show cause order. pursuant to S 2.206 request ift it l
decides that "a substantial health and safety issue" has'been l
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i raised.). . Absent such a showing, no action need be taken on-a ~
request. See, e . g . =, Philadelphia Electric Co. (Limerick Generat-ing Station, Units 1 and'2), DD-85*11, 22 NRC 149, 154-(1982).
The NRC is not required-to conclude that a substantial health and safety issue has been raised merely because-a S 2.206 ~
petition has been filed. The NRC "is not obligated to take enforcement action 'whenever [the NRC) receive (s) information .
adverse to the integrity of existing nuclear power safety or safeguard systems.'" Lorion, 785 F.2d at 1041 (quoting-In re Nuclear Regulatory Comm'n, 5 NRC 16, 21 (1977), in turn citing Nader v. Nuclear Regulatory Comm'n, 513 F.2d 1045, 1054-55 (D.C.
Cir. 1975)). In addition, the Director is not required-to accord presumptive validity to every assertion of fact in a S 2.206 5
petition. See Northern Indiana Public Service Co. (Bailly Gener-ating Station, Nuclear-1) CLI-78-7, 7 NRC 429, 432-33 (1978)..
Nor must the NRC grant a hearing simply because a petitioner requested one. See Nuclear Information and Resource Service v.
United States Nuclear Regulatory Comm'n, 918 F.2d 189, 195 (D.C.
Cir. 1990) ("Section 2.206 does not provide a hearing on request as-S 189(a)-requires.").
The NRC, in its discretion and after an' inquiry appropriate to the facts alleged, must uecide whether-the allegations raised-by Lake County should be considered substantial, and thus whether enforcement' action is required. Lorion, 785 F.2d at 1042 (citing Porter County Chapter v. Nuclear Regulatory Comm'n, 606 F.2d 4
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-1363, 13 69; (D. C. Oir. - 197 9) ) . "[S)afety should be properly assessed on the basis of_whether present systems can assure rea-sonable protection of the public health and safety." Metropoli-' -
tan Edison Co. (Three Mile' Island Nuclear Station,_ Unit 1),
ALAB-729, 17 NRC 814, 828 (1983). A finding of absolute cer-tainty, or complete or perfect safety, is not required. Id.
Rather, it is incumbent on the NRC to weigh the state of the art, the risk of accidents, the record of past performance, the need for further improvement in nuclear safety matters, and other con-siderations in determining whether enforcement action is needed.-
Id. In sum, the Director has broad discretion to deny a S 2.206 petition. State of Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm'n, 868 F.2d 810, 815 (6th Cir. 7989).
Lake County's S 2.206 petitier nould be denied without a hearing. See Nuclear Information,.918 F.2d at 195 (" S 2.206 petitions . . . may be-decided by the Commission without briefing or a hearing."). Lake County's allegations of potential problems or issues regarding the temporary storage of LLW at Perry clearly do not require enforcement action under 10 C.F.R. S 2.102. -The facts surrounding-the. construction of the LLW facility at Perry make clear that Licensees are not only operating within the proper legal framework, but also-that there is reasonable assur-ance that LLW can be stored safely in a properly constructed
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facility at Perry. Moreover,-the analysis below demonstrates that none of Lake County's' allegations are relevant to the safe
j operation of the LLW facility.- See Houston Lighting and Power.
Co. (South Texas Project, Unit 1), DD-88-9, 27 NRC-648, 649 (1988) (" Allegations deemed not relevant to safe operation of the facility . . . may not receive further consideration.")
In the present case, Lake County has failed to meet the threshold requirement of showing a substantial health and safety issue to justify relief under S 2.206. First,_the LLW facility-will be a processing and temporary holding facility; Licensees do not plan to store LLW at the facility on a-permanent basis'.- Sec-ond,_three evaluations under 10 C.F.R. S 50.59 in connection.with the design, construction, and operation of the LLW facility dem--
onstrate that the additional storage does not involve any unreviewed safety questions. The Licensees have also complied with the guidelines _and safety guidance of Generic Letter 81-38.
Third, no environmental impact statement is required for the LLW facility. To the extent en"ironmental concerns need to be_ con-sidered, the original environmental impact statements prepared in connection with the construction and operation of. Perry have bounded all potential risks. Fourth, 10 C.F.R. S 61.50 does not apply to the LLW facility, and'NRC need not issue any regulations governing interim storage of LLW. In any case, none-of the alleged safety risks raised by Lake County have. factual merit.
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,1 A. -The LLW Facility Will Be a Temporary Facility.
Licensees' plans to construct and operate the LLW facility meet all currently-existing regulations and restrictions applica-ble to the on-site storage of LLW. In 1981, the NRC issued Generic Letter 81-38, " Storage of Low-Level Radioactive Waste at.
Power Reactor Sites." That letter provided guidance to power reactor licensees for auditional on-site storage of LLW. In -
addition to providing radiological safety guidance for such addi-tional LLW storage capacity, the Generic Letter also provided procedural guidance to determine the appropriate licensing action.
As set forth in the Generic Letter, if:
(1) an evaluation pursuant to 10 C.F.R. S 50.59 has been carried out; (2) the existing license conditions and technical specifications do not prohibit increased storage; ,
(3) there are no unreviewed safety questions; and
.(4) the proposed increased storage capacity.does not exceed' the generated waste projected for five years, a licensee may provide the increased storage capacity, document the S 50.59 evaluation, and report it to the NRC annually or as specified in the license. No specific license application or amendment is needed.
Consistent with Licensees' intent to process and temporarily.
store LLW on-site at the LLW facility, Licensees complicd with
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the requirements of Generic Letter 81-38, 1The Licensees have-prepared three safety evaluations under 10 C.F.R. S 50.59._to assess the risks associated with the temporary storage of LLW'at Perry, evaluating -ta radiological effects of interim storage, and location, design, construction, and. occupancy of the LLW facility. The S 50.59 evaluations disclosed no unreviewed safety questions, and were documented and made available to NRC. The-evaluations also show that the additional storage does not require any change in existing license conditions or technical ,
specifications. Nor do the existing license conditions or tech-nical specifications prohibit increased storage.
Finally, the S 50.59 evaluations demonstrate that the pro-posed increased storage capacity does not exceed the generated waste projected for five years. Perry's maximum storage size will be administratively controlled through an inventory _syutem designed to ensure compliance with the five year requirement.
The LLW facility will have a physical inventury system that will track.each storuge container placed into storage. This cystem will record the physical position of each container, the waste-type, date of storage, the curie content, and the. dose rate.
With the placement of the first container in storage, the_five year interim storage restriction will begin. No additional waste will be placed into storage once the oldest box has:been in the building on the last day of its fifth year of storage, without
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prior application for and approval of a separate license under 10 CFR Part 30.
Despite this well-documented plan and methodology, Lake [
County's Petition contends that the LLW temporary storage facil-ity will in effect be a permanent storage facility. In support of this contention, Lake County states that Ohio will not and cannot be operating a permanent LLW disposal site within the next-five years, thus making it inevitable for Licensees to store LLW at Perry beyond the five year temporary storage period specified in Generic Letter 81-38. Lake County cites deluya in establish-ing regional permanent disposal facilities pursuant to 42.U.S.C.
SS 2021b-2021j as support for this conclusion.
Lake County's contention that the LLW temporary storage facility will be a de facto permanent facility is speculation.
Lake County admits that the Barnwell, South Carolina LLW disposal site will continue to accept LLW from Licensees until June, 1994.
Barnwell may. continue to accept LLW from Licensees after_. June, 1994 as well. In addition, other LLW disposal sites,~ including-
'the sites in Beatty, Nevada and Hanford, Washington, might again
'become availableIfor LLW disposal.
Federal-LLW disposal facili-ties may also become available. Thus, it is hardly a' certainty that storage capacity beyond five years will be required by the Perry plant or that the LLW facility will become a. permanent storage. facility at Perry. If indeed it becomes clear that tem-porary LLW storage capacity for more than five years is needed,
. l Lthen Licensees at that time will have the option to=suomit an-application for a' separate license pursuant to 10 C.F.R. Part 30.
In any event, the contention that any on-site storage beyond the-five year temporary LLW storage period provided for in Generic-Letter 81-38 constitutes de , facto permanent storage is unfounded.
Licensees acknowledge that the permanent disposal of LLW is a national problem, and not a problem peculiar to Ohio. See New York v. United States, 112 S. Ct. 2408 (1992). NRC is also obvi-ously awar .f the LLW disposal situation, as evidenced by the- '
issuance of Generic Letter 81-38. Since, as Lcke County readilf admits in its petition, the five year temporary LLW storage period provided in Generic Letter 81-38 is an NRC guideline and is not a mandatory limit or restriction, perhaps NRC in a future-Generic Letter might choose to extend the allowable time for tem-porary storage of LLW on-site to accommodate the exigencies of LLW permanent disposal. In the meantime, Licensees are not con -
structing the temporary LLW storage facility to circumvent-the permanent LLW disposal issue.
B. The Issues Raised By Lake County in the Petition Do Not Raise Substantial Health and Safety Concerns.
The temporary nature of the LLW storage facility aside, the proper inquiry in assessing a 10oC.F.R. S'2.206 petition is whether-Lake county has raised significant health and safety con-cerns. See Arizona Public Service Co.-(Palo Verde Nuclear
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Generating Station, Units 1, 2, and'3), DD-92-1, 35 NRC 133, 143-44 (1992). It has not done so. As stated earlier, Licens-ees' 10 C.F.R. S 50.59 evaluations demonstrated that there are no-unroviewed safety questions associated with the LLW facility.
Moreover, none of the alleged safety risks raised by Lake County warrant an enforcement action by the NRC pursuant to S 2.206.
- 1. Lake County Offers No Evidence Showing That Seismic Activity Near Perry Raises Substantial Health and Safety Issues.
The NRC has already decided that seismic activity near ind around Perry did not raise a serious or significant safety con-cern. See Cleveland Electric Illuminating Company (Perry Nuclear-Power Plant, Units 1 and 2), DD-86-4, 23 NRC 211 (1986). On.Feb-ruary 3, 1986, the Ohio Citizens'for Responsible' Energy, Inc.
("OCRE") filed a S 2.206 petition challenging the construction and operation of Perry, alleging that the seismic design.of Perry was inadequate. This motion was filed in response'to the' January 31, 1986 earthquake that occurred ten _ miles.from the plant. The earthquake measured 5.0 on the Richter scale. In support of'its
- motion, 'CRE submitted a newspaper article reporting that vibra-tory ground motion at the plant during the earthquake exceeded
-the peak acceleration for which the plant had:been designed.
The NRC staff studied the available' data-and' determined that, while the earthquake'was' severe and was different in some:
respects from the archetype of earthquake motion used in I -. -
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r designing the plant structures, the high? frequency energy levels -j that had exceeded the " design spectrum" for-ground motion-did not ,
raise a safety concern. The Director therefore denied the S 2.206 petition.- In support of this denial, the Director set forth detailed facts supporting the conclusion that-no adequate basis existed to deny further licensing or order the other mea-sures requested by OCRE.
The Director indicated that following the earthquake, the NRC Staff and Licensees conducted an extensive investigation of the effects of the earthquake upon Perry. Detailed inspections by Licensees' personnel, the NRC Staff, a Seismic Qualification i Review Team, and the NRC's Region III Staff reveal,3 no earthquake-related damage to any systems, otructures, or compo- l nents of Perry. Id. at 215. In addition to these wa!kdowns and q visual inspections, Licensees and the NRC Staff evaluated the safety impact of the eartnquake from an engineering standpoint, q The NRC Staf f concurred with Licensees :in finding that the earth- ,
i quake represented a' negligible effect on the future safe opera-tion of Perryi Id. at 217. In sum,1the NRC Staff held "no sig- l nificant equipment or structural damage has been found that could be attributed to the Ohio earthquake of January 31, 1986." Id.
The NRC also reevaluated-the geology and seismology of the Perry site after the 1986 earthquake in accordance with-10 C F.R.
Part-100, Appendix A. .The NRC specifically determined.that no known capable faults exist in the plant: area. Id. at'219. l l
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Moreover, the NRC Staff, U.S. Geological. Survey, and'U.S. Army Corps of Engineers geologists examined _a series of minor folds and shallow faults that were identified with the excavations for Perry's main structures, and concluded that the shallow faulting and associated limited surficial deformation presented no hazard to the Perry facilities. Id.
Thus, after reviewing OCRE's claims,.the NRC determined that none of OCRE's earthquake-related allegations appeared to have a-significant implication for the safety of Perry. Id. at-222.
The U.S. Court of Appeals for the Sixth Circuit in State of Ohio
- v. Nuclear Regulatory Comm'n, 814 F.2d 258-(6th Cir. 1987)_ uphold the NRC's denial of OCRE's S 2.206 petition.
Lake County in its Petition relies heavily on the March, 1987 report by Y.P. Aggarwal entitled Seismicity and Tectonic
, Structure in Northeastern Ohio: Implications-for Earthquake Haz-ard to the Perry . Nuclear Power Plant to suplurt its claim..that risks to Perry' associated with earthquakes have been erroneously analyzed. The NRC has already reviewed this report in responding to a second S 2.206 petition filed.by OCRE. See Cleveland Elec- .
tric Illuminating-Company'(Perry Nuclear Power Plant,1 Units 1 and
-2), DD-88-10, 27 NRC 657 (1988). In'that proceeding,_OCRE filed a S 2.206 petition again alleging various inadequacies in the seismic design of Perry. OCRE's petition was based on'the 1987:
Aggarwal report, which questioned Perry's ability to_ withstand a major _ earthquake.- After thoroughly reviewing the report, the NRC nWy
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. found Dr.-Aggarwal's conclusions to be unpersuasive,-and.reaf-- ,
-firmed 3ts conclusion that the seismic design of Perry was ade-quate and appropriate. Id. at 662. The NRC thus refused to sus--
pend the Perry Unit 1 operating license, and denied OCRE's peti-tion. The U.S. Court of Appeals for.the District of Columbia circuit dismissed OCRE's appeal of the NRC denial of the S 2.206 petition. See Ohio Citizens for Responsible Energy v. U.S.
Nuclear Regulatory Comm'n, No. 88-1676 (Jan. 23, 1990) (order _
dismissing OCRE's appeal).
Licensees accounted for seismic considerations when design-ing the LLW facility. No NRC requirements setting forth seismic criteria for this type of facility exist. Nonetheless, as the final S 50.59 safety evaluation indicates, the LLW facility is being constructed in accordance with Seismic-Zone 1 criteria with an Occupancy Importance Factor of 1.5. This ensures that the facility will remain stable when structural members are strained into the inelastic range during the maximum predicted earthquake.
for the State of Ohio.
Like OCRE in its first seismic S 2.206 petition, Lake. County
-makes "only the barest of allegations" that potential earthquakes near Perry raise safety _ concerns, and makes "no showing that it has anything to contribute to t"2 analysis of.the. plant's seismic.
security." See State of Ohio, 814-F.2d at 262. NRC.has already-reviewed the Aggarwal report, and found it unpersuasive.--Lake County offers no additional evidence to substantiate its claims.
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4 NRO should therefore deny.Its S 2.206 petition. Like OCRE, Lake-County-has "no significant contribution to make te further staff H
analysis" of earthquake-related safety issues. Id.
- 2. Lake County Offers No Evidence Showing That the LLW Facility's Effect on Groundwater-Raises Substantial Health and Safety Issues.
Like the earthquake, the impact of the LLW facility on t)
Perry site's groundwater does not raise substantial health and 'l safety issues. Perry's potential impact on the area's groundwa-ter was extensively reviewed in both the Final Environmental Statement related to the operation of Perry Nuclear Power Plant, l Units 1 and 2, NUREG-0884, Docket Nos. 50-440 and 50-441 (August i i
1982) ("FES"), and the Safety Evaluation Report relatedoto the l operation of Perry Nuclear Power Plant, Units 1 and 2, NUREG-0887, Docket Nos. 50-440 and 50-441 (May 1982) ("SER") and-its supplements. In both rcports, no safety concarns-were raised-in connection with the operation of Perry and the Perry site's groundwater.
The FES found that the formation that contains groundwater--the lacustrine soil deposits--consists of lov ermeability fine sands, silty sands, and silty clay. The average thickness is 7.3 m (24 ft), and the underlying glacialL
' till is essentially impervious (S 4.3.4)._ The'FES concluded that.
Perry "will have'no measurable effect on_the groundwater
-resources of the area," principally because Perry uses'no ground--
water for its operation, because no effluents will be-discharged-into the groundwater as a result of plant operation, and because of the low-water-yielding, impervious nature of the soils under the plant materials (SS 5.3.1.2, 9.5.2). The staff also' con-cluded that "[t]here is no groundwater usage which could be affected by contamination at the plant." (S 5.9.4.1.4.5).
The SER arrived at similar conclusions: "The staff further-concludes that plant operation will not adversely affect regional groundwater supplies nor will groundwater adversely affect the plant . . , .
(S 2.4.9). Like the FES, the SER concluded that the materials underlying Perry were virtually impermeable.
(S 2.4.5). The SER also analyzed the impacts of accidental-releases of liquid effluents in ground and. surface waters, and concluded that Perry " meets the requirements of 10 C.c.R. 100'
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with respect to. potential accidental releases of radioactive offluents." (S 2.4.8). Supplements to the SER neither amend nor alter these conclusions.
The exhaustive analyses of the groundwater issue at the licensing and operational stages of Perry _ bound the risks pre-'
sented by the LLW facility at Perry, and reveal no1significant safety risks to the site's groundwater. Lake County,=in_its Petition, draws absolutcly noLconnection between the LLW facility and potential contamination of the site's groundwater. Thus, l
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-.4 Lake County raises no significant health and cafety issues with respect to the LLW facility and Perry's. groundwater, ,
C. Fo Environmental Impact Statement Is Required Before the. Licensees Construct the LLW Facility.
In the Petition, Lake County contends that an environmental impact statement ("EIS") concerning the storage of I W for up to and beyond five years is required before the Licensees construct-the LLW facility. Lake County cites several grounds for this assertion. First, Lake County claims an EIS is mandatory pursu-ant to 10 C.F.R. Part 30. Second, Lake County claims that -
on-site storage of LLW was not anticipated in Perry's original design, and therefore not properly assessed in the FES. Neither of these claims have merit, and no'EIS is required.
- 1. Absent a Federal Action, No EIS Is-Required.
The National Environmental Policy Act ("NEPA")_ requires n the preparation of an EIS where there is "a major Federal. action sig- .
nificantly affecting the quality of the human environment." 42 U.S.C. S 4332. If there is-no major Federal action, NEPs does; not come into play. The construction and' operation of-the LLW-facility does_not involve a major Federal action. -Since a:lic-ensee may undertake to build such a facility without prior NRC approval, there is no " Federal action" triggering NEPA's EIS-requirement.
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- 2. 11o Part 30 License Is Required Since Licensees Do liot Intend to Store LLW for ?wre Than Five Years.
Lake County argues that an EIS is required because a ~.rt 30 license muut be obtained for the LLW facility. As stated above, Licensees do not plan to store LLW for more than five years.
Thus, no 10 C.F.R. Part 30 license is required. LLW will be
~
stored at Perry on an interim basin until it can be transported to a permanent dio s sal facility. The procedures proposed by the Licensees for operating the LLW facility will ensure compliance with the five-yeat ,Jriod set out in Generic Letter 81-38. As HRC stated in the Generic Letter, Licensees must follow the application and review procedures of Part 30 only "(1)or proposed increases in storage capacity for more than five years (long
" Again, if it appears that the LLW facility may be term) . . . .
needed beyond the five year period, Licensees at that time will comply with Part 30.
Even if a separate Part 30 license were required, in EIS would not be mandated. NRC regulations require that a Part 30 license applicant submit an environmental report only where "the commission has determined pursuant to Subpart a of Part 51 of this chapter (that the licensed activity) will significantly affect the quality of the environment." 10 C.F.R. S 30.32(f).
Nor does Part 51 require the preparation of an EIS in this case, 10 C.F.R. S 51.20. Lake County has presented no evidence to the a contrary.
4
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i
- 3. Even If An Environmental Analysis Were
. Required for ';he LLW Facility, the Existing ;
Perry EIS Bounds Its Environmental Impacts. !
Even if an environmental assessment were required at this time, the two FES's completed in connection with the construction
! and operati.on of Perry already bound all possible environmental !
risks and impacts posed by the LLW facility. The LLW facility will be constructed on land that was cleared for construction of -
i the Perry facility. These impacts were thoroughly analyzed in connection with construction of the Perry facility itself. The ,
i i
impacts of LLW facility construction are an insignificant frac-tion of the construction impacts already analyzed cnd incurred When the Perry facility was built. Furthermore, the FES thor- f oughly analyzed the far greater potential environmental risks of radiation exposure and potential accidents from the normal opera-tion of Perry, and found no significant environmental risks or impacts stemming from this activity either. The FES arrived at the following conclusions: )
j
'l._ operational land use impacts will be small.
(FES Sections 4.2.1 and 4.2.2).
- 2. Neither lake fishing activity nor-fishery harvests will
- be affected by plant operation.
(FES Sections 5.3.2, 5.5.2.1, and 5.5.2.2)
- 3. The operation of the plant'will have no impacts'on ;
endangered.or threatened species.
(FES Section 5.6) +
- 4. The risk associated-with accidental radiatirn exposure- ,
is_very-low. The FES considered the potenttal environ- '
montal impacts from a broad: spectrum of.possible acci-dental releases of-radioactive materials into.tha envi- ,
ronment,-and included postulated design-based accidents '
. . ~ , ,_,_..___._._,;.....__.._, -
__a_... ,_..u._._ .. ~, - , _ _ , _ , , , , -
and more severe accident sequences that lead to a
' iverely damaged reactor core or core molt. The FES-concluded that the riska and impacts from potential-accidents at the site are small when compared with the risks of early fatality from other human activities in a comparably sized population.
(FES Section 5.9.4.1.5).
- 5. No significant environmental impacts are anticipated from normal operational releases of radioactive materi-als. The estimated maximum individual dose for a-mem-ber of the public subject to the maximum exposure will be very small compared to the dose limits specified in 10 C.F.R. Part 20. As a result, the FES found that_- -
t= there would be no measurable radiological impact on members from routine operation of the plant.
(FFS Section 5.9.3).
A review of the FES thus suggests that any environmental _ impacts arising from the couctruction or operation of the LLW facilitf would be a very small subset of the impacts already analyzed in the EIS's prepared for Perry.
D. The Requirements of 10 C.F.R. .S 51.50.
Do Not Apply to the LLW Facility.
Lake County in its-Petition also contends that an' evaluation pursuant-to 10 C.F.R. S 61.50 is required before Licensees can construct the LLW facility. Specifically,-Lake County contends-c that en evaluation of the risks presented by crosion and, earth-
~
qui:es, and the impact of the LLW facility on the site's ground
, ,i
water, must be completed. Lake County's contentions reflect a nisunderstanding of the applicability and requirements of S 61.50. No $ 61.50 evaluation is necessary.
10 C.F.R. Part 61 sets forth the licensing requirements for land disposal of radioactive waste. Section 61.50 in particular sets forth disposal site suitability requirements for land dis-posal. " Land disposal facility" means the land, buildings, and equipment to be used "for the disposal of radioactive wastes into the subsurface of the land." 10 C.F.R. S 61.2. As the above-description of the LLW facility demonstrates, Licensees are not disposing of LLW into the subsurface of the land at the Perry site; all LLW will be processed and stored in above-the-ground buildings and con tiners. Thus, the requirements of Part 61 sim-ply do not apply to the LLW facility.
'1 E. Lake County's Request That Construction of the LLW Facility Be Suspended Until _the NRC Inti ;*,utes Regulations Regarding the Storage of-LLO .9 Inappropriate Under 10 C.F.R.-S-2.206.
Lake County's request that construction of the LLW facility be_ suspended until the NRC institutes regulations 1regarding tho
-storage of LLW-is-not appropriate-under S 2.206.- The NRC so-notified-Lake County oy letter dated October 21, 1992:
-Concerning.your request-that the NRC'promul- -
gate regulations for storing low-level. radio-active wastes.at nuclear power plant sites,:
you should refer to 10 C.F.R. ? ,2 (enclosed) for the Commission's .equirements' for a proper petition for rulemaking -
l-
c t The NRC has thus concluded that it will consider Lake Coun- {
i ty's request for regulations as a separate matter from this Peti-tion. Lake County's request that NRC suspend construction of the LLW facility pending issuance of LLW storage regulations should therefore be denied. In any event, NRC (as with any Federal agency) has the discretion to proceed case-by-case or by rulemak-ing. See, e.g., Morningssye Renewal Council, Inc. v. AEC, 482 F.2d 234, 239 (2d Cir. 1973), cert. denied, 417 U.S. 951 ( 19'/ 4 ) .
IV. Conclusion Licensees have complied with all applicable rules and regu- .
lations for the construction of a temporary LLW storage facility ,
at Perry. Licensees have complied with Generic Letter 81-38 by, among other things, completing three 10 C.F.R. .5 50.59 evalua-tions, which show that no unroviewed safety questions are involved by constructing and operating the facility. Moreover, Lake County in its Petition has not demonstrated-that any signif--
icant health or safety risks are implicated by the construction.
or operation of the facility. Lake County has.therefore not met the legal standard for instituting a proceeding to suspend a
)
_ _. . _ . _ . . . , . . . . _ _ ,_ __ _. ,,a.,_,. . . _ _ _ . _ _ , . _ , _ , __. ; _ .. ; .
license or for other action as may be appropriate pursuant to 10 C.F.R. S 2.206. Based on the foregoing, Lake County's Petition should be denied.
Dated: tiovember 16, 1992 Respectfully submitted,
.+ %' tj Y 4*
Silberg T
- :~W t< . i t. .I Figini ,/
9 . ' r. , , r IT P1Ali, POTTS &
TROWBRIDGE 2500 11 Street, li . W .
W1shington, D.C. 200??
(202) 663-8000 Attorneys for Licensees
- e. .
i,.[
Ull1TED STATES OF AMERICA llUCLEAR REGULATORY COMMISSIOli 92 110V 19 P4 :09 Bef ore the Director, Of fice of !!uclear Reactor Regulation o .u, v
- c. 6 , >, ' ; . 'i l
) : tv n In the Matter of )
) Docket 110. 50-440 Tile CLEVELA!JD ELECTRIC )
ILLUMIllATIllG COMPAllY , ET AL. )
)
(Perry lluclear Power Plant) )
)
CERTIFICATE OF SERVICE I hereby certify that true copics of the foregoing Licens-ces' Response to the Lake County Board of County Commissioners' 10 C.F.R. S 2.206 Petition was served by first class U.S. mall, postage prepaid, this 16th day of 11ovember, 1992, upon the following:
Office of the Secretary U.S. 11uclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing & Service Branch Mary E. Wagner, Esquire U.S. Nuclear Regulatory Commission Washington, DC 20555 Staven C. LaTourette, Esq.
Lake County Prosecutor Courthouse P.O. Box 490 Painesville, Ohio 44077 Kimberly A. Mahaney, Esquire Assistant Prosecuting Attorney Courthouse P.O. Box 490 Painesvi.le, Ohio 44077 Dated: 11ovember 16, 1992 ( m / 4" ayE S11eerg ;