Text

Motion for Stay of Effectiveness of Amend 47 to OL, Authorizing Replacement of Steam Generators,Pending Appeal Before Us Court of Appeals for DC Circuit in Which Fes Is Challenged.W/Civil Pleadings & Excerpts of NUREG-0523
	ML18139A515
Person / Time
Site:	Surry
Issue date:	09/18/1980
From:	Jay Dougherty; CITIZENS ENERGY FORUM, DOUGHERTY, J.B., Potomac Alliance
To:	; NRC COMMISSION (OCM)
References
	ISSUANCES-OLA, NUDOCS 8009230013
	Download: ML18139A515 (111)
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BEF'O.RE THE UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of

)

VIRGINIA ELECTRIC AND POWER CO. )

(Surry Power Sta., Units 1 and 2) 0

)

Docket Nos.

MOTION FOR A STAY PENDING APPEAL The Potomac Alliance, Citizens Energy Forum, Inc.,

the Virginia Sunshine Alliance, and Truth in Power

("Petitioners") move the Nuclear Regulatory Commission

("the Commission") to stay the effectiveness of amendment ho. 47 to operating license DPR-32, which authoriz~s the Virginia Electric and Power -col.. (

11VEPC0 11 ) to replace the steam generators at the Surry Power Station, Unit 1. Pet-itioners are this day filing suit against the Commission in the United States Court of Appeals for the District of Columbia Circuit, challenging.the final environmental statement (FES) for the Surry steam generator project and requesting that the license amendment be stayed by the Court. Furthermore, Petitioners are requesting that the Court order the filing of responses to Petitioners' motion by September 23, ;l.980. If the Commission grants the instant 8 00923001~

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motion on or before that date, Petitioners will withdraw their request for a cou~t-ordered injunction. If no response is received, Petitioners will assume that this motion has been denied.

Grounds on Which this Motion is Made Although the Cdmmission appears not to have published regulations governing the stay of its orders, Petitioners assume that it will be guided by principles analogous to those employed by the courts in similar '.situa.ir.ibo.ns. See In the Matter of Petition of Natural Resources D'efense Council, CLI-76~2, 3 NRC 76 (1976).

Accompanying* this motion is a copy of the motion for a stay that Petitioners are filing today with the Court of Appeals. It demonstrates that Petitioners are entitled to a stay under judicial standards. First, Pet-itioners have shown a likelihood of success on the merits of their claim that the ~ES for the Surry project is leg-ally inadequate under the National Environmental Policy Act, 42 u.s.c. §4321 et seq. Foremost among the FES's legal def~

ects is its failure to present, contrary to the Commission's express instructions, a:.,balanced and objective assessment of the significance of the 4000 man-rems of radiation to which the Surry workers will be exposed. Second, Petitioners have shown that if a stay is not granted they will suffer irreparable injury in terms of direct environmental effects

as well as denial of their statutory right to full compliance by the, :commission with its duties under. that Act.

In addition, the balance of equities tips strongly in favor of granting a stay. First and most important, Petitioners are not asking that Surry Unit 1 be shut down; on the contrary they are asking simply that it be left in service. Thus, any costs to VEPCO will be slight:-.

and of a short-term character. Second, a stay will forestall the possibly unnecessary exposure of the Surry workers until judicial review of the FES can be had.

For these reasons, Petitioners request the Commission to stay the Surry operating license amendment.

Once again, the Commission is urged te respond to this motion by Tuesday, September 23, 1980, so that the Court of Appeals can be apprised of the Commission's inten-tions before considering the issuance of judicial relief.

Dated: September 18, 1980 Attachment Respectfully submitted, J

es B. Dough Suite 620 1346 Connecticut Ave., NW Washington DC 20036 (202) 452-9600 Counsel for Petitioners

/

e.

IN THE UNITED STA'IES COURT OF APPE'ALS FCR THE DISTRICT OF COUJMBIA CIRCUIT

~

ALLIAN:E, CITIZENS"S ~

FCRt:M, IN::.,

VIRGINIA SUNSHINE AU.IAN::E, TRJJTH IN ~, INC.,

Petitioners, oocK~o usN'P.G

)

Civil Action No.

v.

UNITED STATES NOCLEAR Rm.JLA'IORY CQM.D:SSION, UNITED STA'lES. OF AMERICA, Respondents.

___________________ )

M:YI'ICN FCR ~

REI,IEF IN THE FORM OF A STAY Pursuant to Rule 18 of the Federal Rules of Appellate Procedure and 28 u.s.c. §2349, Petitioners hereby move for a stay of the amendment (No. 47) to the *operating license (N::>. DPR-32) by which Resp:mdent Nuclear Regulatory Ccmnissicn ("NRC") authoriz.ed the Virginia Electric and Power Co. ("VEPCO")

to replace the steam generators at its Surry 11:::Mer Station,*unit No. 1.

Regrettably, the circumstances and the NRC's non-compliance with the requirements of the National Environmental Policy J.lct have prevented Petitioners frcm formally requesting the NRC to stay its action as required by Rule 18.

Altmugh the environmental impact statement* ("EIS") at issue in their case was circulated in draft form in March, 1980, it was not reissued in final form until August, sane five months later. 'Ibe reasons for the delay are t.mknown since the draft oonsisted only of sane 15 pages of text and was vir-tually identical to the final version.

'Iben, when the final EIS was issued

/

in August, neither Petitioners l'X)r their oounsel was either ootified or fur-nished with a oopy. After reading in a trade journal of the final statement's existence, counsel obtained a oopy on September 10, 1980. When Petitioners learned on that date that the SUrry action was scheduled to begin within 10 days, they notified NRC of their intent to sue two days later.

An oral request to oounsel for the NRC for a stay of the action was

not accepted. kcordingly, a written request for such a stay is being filed this day with the Chairman of the NRC.

~vertheless, the necessity of preserving this Court's cpportunity to exercise review a:,mpels the filing of this motion.

By separate motion.Petitioners are requesting this Court, pursuant to

. Rule 27(a) of the Federal Rules of Appellate Procedure, to shorten the time for

.responding to Petiticners motion fran seven to five days follCMing receipt of personally served oopies. AccX>rdingly, the stay motion presented to the NRC will request a decision within five days. 'lhus, if the stay is granted, a -

response in this Court will beoome unnecessary.

On the other hand, if the NRC chooses to file a response with this Court without ruling on or granting the stay motion before it, it will be reasonable to presume that the motion has been denied by the NOC.

'Ihe. motion before this Court is based on the grot.n1ds that Petitioners are likely to succeed on the merits in this action, and that the balance of equities favors the granting of relief pendente lite. Indeed, if a stay does not issue Petiticners and others will suffer irreparable injury and the action may tecorrie"mcot.

On the other *hand, the preservation of the status quo will prove less burdensane to the Respondent and VEPCO.

e. 'Ihese grounds are set forth more fully in the supporting memorandun of points and authorities filed simultaneously herewith. Petitioners request_

that this rotic.n be set cbwn for hearing.

Dated:

September 18, 1980 Washington, D.C.

Eespectfully subnitted, 20036 Counsel for Petitioners N.W.

I.

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT POTOMAC ALLIANCE, *

CITIZEN'S ENERGY FORUM, INC.,

VIRGINIA SUNSHINE ALLIANCE, TRUTH IN POWER, INC.,

Petitioners, v *.

)

UNITED STATES NUCLEAR REGULATORY COMMISSION, )

UNITED STATES OF AMERICA,

)

Respondents.

)

___________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR STAY I.

Introduction occ:<ETED US~P.C Civil Action No *.

In support of the foregoing motion to this Court for a stay of an operating license amendment issued by the Nuclear Regulatory Commission ("NRC" or "the "Commission") to the Virginia Electric and Power Company ("VEPCO") authorizing the replacement of the steam generators at the Surry Power Station, Unit 1, Petitioners submit this memorandum of points and authorities.

Time considerations preclude a complete recitation, at this point, of the,factual co11text of this action.

For a more detailed explanation of the steam generator replacement project that is the focus of the case, Petitioners refer the Court to the Petition for Emergency and Remedial Action filed with the NRC by Petitioners on April 18, 1979.

That petition accompanies*.

I

this memorandum.as Appendix A.

A summary of the facts follows.

VEPCO's Surry Power Station consists of two pressurized water reactors {"PWRs").

Steam generators are critical components in every PWR; they transfer heat energy from the reactor core

cooling fluid ( the "primary system") to the steam system powering the generating turbine (the "secondary system").

Each Surry unit has three steam generators.

In approximate terms, each stands eight stories high, measures 14 feet in diameter, and weighs several hundred tons.

For several years VEPCO, like a dozen other PWR owners, has experienced severe corrosion of the steam generators' inter-nals *.

Because this corrosion leads to leakage of core coolant to the secondary system and results in operating inefficiencies and increased discharges of radioactivity to the environment, the NRC.l:l,as imposed limits on steam generator leakage.

When VEPCO's limit is exceeded, it shuts the particular reactor down and seals off, or "plugs" the leaking tubes.

Power operations can then resume.

Obviously, if all,.of the steam generators' tubing were plugged, neither they nor the reactor could function.

With a certain percentage of plugged tubes, roughly 30 %, or l,ess, the reactors can operate at full power.

At higher percentages (no higter percentage of tubing has ever been plugged), power output reductions nay become necessary.

The Surry station has the most severely corroded steam generators in the country, and thus has the highest percentage of tube plugging, around 25%.

- Although not threatened with power reductions, 1/ VEPCO decided to remove the degraded steam generators and replace them with new ones. It is the first utility to undertake such an operation.

The process of replacing steam generators requires that the plant be shut down for a period of six to nine months~-

Employees, working largely with hand tools, cut the external pipes through which the two cooling systems enter and leave the steam generators.

Once unmoored, each steam generator is cut in its midsection; the upper half is left within the reactor building and the lower helf, which contains the.corroded tubes, is transported out of the reactor building. 2/

New lower halves are brought inside the containment and joined,with the old upper halves.

External tubing must then be carefully welded*

back into place.

The principal environmental impact of the Surry operations is the exposure of thousands of pipe cutters, welders and o.ther employees to more than 4,000 "man-rems" of radiation.

This is more than eight times the dose absorted annually by workers at an average commercial reactor.

In addition, the operation requires discharges of cutting and cleaning fluids into the adjacent James River, and the creation of dust, noise, and*

1/

~/

See Appendix A at 33, note 2.

Five of the six steam generators replaced at Surry will*

be stored in a concrete waste repository on the site.

The sixth has been shipped, by ocean-going.barge, to Harford, Washington for examination.

and local auto traffic.

Not to be ignored is that during the outages replacement power must be generated at fossil-fuel burnin.g plants, leading to significant increases in air emissions.

Moreover, the cost of this. power, when added to the direct cost of the operation itself, runs to approximately $300 million dollars, most if not all of which will be borne by VEPCO's~

approximately one million ratepayers.

In November of 1977, b*efore any of the Petitioners were organized, the NRC placed a notice in the Federal Register stating that VEPCO had applied for operating license.amendments authorizing steam generator::.replacement at each Surry unit, and allowing 30 days for interested parties to request a hearing thereon.

No one responded.

The amendments were issued without a hearing in January, 1979, and work began almost immediately on Unit t2.

The unit went back into service about one year later

Upon learning of the action in the Spring of 1979, Peti-tioners filed with the NRC, pursuant to 10 C.F.R. §2.206, a petition {included in Appendix A) r*equesting, inter alia, that the repair of Dnit #2 be halted pending preparation of an envi-ronmental i~pact statement.

The petition was denied by the NRC staff on October 24, 1979.

However, the full Commission chose to review that decision and concluded that the staff's treatment of the significance of the radiation doses at Surry was inac:equate *. Noting "controversy within the scientific conununity" as to the health effects of radiation, it ordered that an impact statement be prepared.

Notably, it did not

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-s-order -that the repair of Unit #2 be stopped, nor that the repair of Unit #1 be deferred pending completion of the NEPA process.

A draft environmental statement was released in March 1980, and Petitioners submitted extensive comments thereon.

The final statement ("FES 11

) was noticed in the Federal Register on August 15, 1980.

Less than a month later, on September 14~ Unit 1 was shut down in preparation for the steam generator replace-ment project.

Petitioners have been informed by VEPCO that the.recent I

shutdown is a normally scheduled outage for refueling of the reactor.

Petitioners have been informed that a period of seven days is required for reactor cooling, v~nting of the reactor building, and preparation for reactor opening.

Another seven days is required for removing the top of the reactor pressure vessel.

A third seven-day period is required for fuel removal.

According to VEPCO, no substantial preparations for the steam generator project can be undertaken until the end of this 21-day period, or October 5; administrative activities outside the reactor building can of course proceed apace, and minor work, such as the erection of scaffolding may go on inside, but no irreparable actions involving substantial worker exposure or reactor modification will occur until October 5.

These facts are recounted in order to demonstrate that although time is short, the controversy nevertheless remains alive.

-- Until October 5 the facts will permit this Court, should

it decide to grant the foregoing request for a stay, to avert the infliction of irreparable injury upon Petitioners without inflicting irreparable injury upon either the NRC or VEPCO.

Indeed, if the license amendment is stayed VEPCO can insert fresh fuel into the reactor and resume nonnal operations, while the NRC remedies its non-compliance with NEPA.

II.

Ar9;1:1n1ent A.

Standards Governing Issuance of a Stay The purpose of a stay pending appeal is to preserve the status quo until the validity of the challenged administra-tive action can be determined by the Court.

See, e.g., Washing-ton Metropolitan Area Transit Comm'n v.-Holiday Tours, Inc.,

182 U.S. App. D.C. 220, 559 F.2d 841 (1977); District SO, United Mine Workers v. International Union, United Mine Workers of America, 134 U.S. App. D.C. 38, 412 F.2d 165 (1969);

Greylock Broadcasting Co. v. United States, 97 U.S. App. D.C.

414, 231 F.2d 748 (1956).

The criteria to be applied in determining the appropriateness *of a stay are identical to those.which govern the issuance of preliminary injunctions.

Holiday Tours, supr~, 182 U.S. App. D.C. at 222-224, 559 F.2d at 843-845.

T~ose criteria have been expressed by this Court*i~ this way:

C-i):*

Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? *.*

(2)

Has the petitioner shown that without such relief, it will be irreparably injured?...

(3)

Would the issuance of a stay substantially harm other parties interested in the proceedings?

(4)

Where lies the *public interest?..*

Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C.

106, 259 F.2d 921, 925 (1958).

These criteria make up a flexible formula in which the strength of the showing required on a given criterion depends on the showing made on the others.

In this case Petitioners assert that the utter inadequacy of the FES for the Surry project* is so manifest that there is little reason to look beyond the first of the Virginia Petroleum Jobbers criteria.

Since the ~ction will be shown to be illegal it is.unnecessary to inquire into the costs of enjoining it.

Similarly, where the movant is confronted with a great risk of irreparable harm not suffered by the.opposing party, the second Virginia Petroleum Jpbbers criter~on is* to be given greater weight than the others *.

In such cases the movant need show not a "mathematical probability of success" on the merits, but simply a serious legal question.

Holiday Tours, Inc., 182 U.S. App. D.C. at 223, 559 F.2d at 844.

Petitioners contend that they are en+:i t_led to relief under either of these alternative formulas.

B.

Petitioners as Likely to Succeed on the Merits

1.

The DES Inadequately Describe~ the Surry Project.

NEPA places exacting obligations upon agencies preparing impact statements.

Specifically, it identifies five separate aspects of every major federal action which must be analyzed.

See 4 2 u. s. c. §4 332 ( 2) (C) (i) - ("\\Z)

The EES plainly violates this requirement as it fails even to mention, in a separate

section or otherwise, Id.

the relationship between local shor"t-term uses of man 1 s environment, and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources, or any adverse environmental effects which cannot be avoided should the proposal be implemen~ed.

In*addition, §102(2) (C) of the Act requires that the statement be "detailed." It need not be an exhaustive collect.ion of minutiae, EDF v Armstrong, 352 F. Supp. 50,:55 (N.D.Cal. 1972), but it must fully set forth the details of the action and the reasoning of the agency.

Alaska v.

Andrus, 188 U.S. App.. D.C. 202, 580 F.2d 465, 472-474 (1978);

Silva v. Lynn, 482 F.2d 1282, 1285 (2d Cir. 1973).

Impact statements must also be written in non-technical language within the comprehension of the general public.

Silva v. Lynn, supra 482 F.2d at 1282; EDF v. Corps of Engineers, 348 F.Supp. 916, 933 (W.D.Miss. 197i).

The Surry FES falls far below these standards. It does no~ describe the function of steam generators, nor does it disclose their size.

Terminology of the most technical nature-is the rule rather than the exception. Seep. 3-1 of FES, where it states that one of the advantages of the new steam gene=ators is their use of a broac~ed hole pattern with a quatrefoil design in the support plates rather than separately drilled flow holes to mini:.nize the accumulation of corrosion products where the tubes pass through the plates.

None of these terms are defined anywhere within the FES.

Similarly, the diagrams found on pp. 3-2 and 3-3 are impenetrable.

Yet when Petitioners brought these deficiencies to the NRC within.their comments on the draft, the response was an icy blast of technical elitism.

It is the staff's opinion that the figures are adequately labelled and the terms used are not so complex as to be beyond the understanding of persons with some know-ledge of steam.generators.

FES at 8~4.

This kind of response excludes the public from the decisiorunaking process rather than draws them into it, and exhibits a callous disregard of the Act's requirements.

2.

The FES Inadequately Analyzes the Environmental Impacts of the Surry Project.

At the outset the FES defines the scope of its discussion of environmental impacts:

The major-issue in this environmental review is the occupational radiation exposure that the Unit l repair will entail.

FES at ii.

Indeed the statement dismisses all-of the non-radio-logical impacts of the project (described in more detail below) in five sentences.

FES at 4-7.

NEPA requires much more than this.

I' [E]very relevant environmental effect of the project" must be gi*-:en consideration.

Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir. 1975).

All foreseeable environ-menta~ consequences must be addressed fully.

Warm Springs Dam Task Force v. G=il:lble, 565 F.2d 549, 552 (9th Cir. 1977).

When Petitioners raised this major gap in the scope of the statement, the Staf::.ac.mitted that "this sole issue was the

scope of the DE*S," and explained the Commission had not directed the staff to look any further. *FES at 8-3.

The FES correctly identifies human radiation exposure as the greatest adverse impact of the action, but goes on to deny any real significance of the 4000 man-rem dose to be absorbed by the workers.

Attached to this** memorandum I.

are the affidavits of two experts in* the field of low-level radiation and its effects on humans.

See Appendices Band C.

They rebut the assertions in the EIS in several respects.

In particular,Drs. Sternglass and Scheer point out that the action is likely to cause between 10 and 60 case$ of cancer.

Notably, Dr. Sternglass refers to a newly prepared study which may indicate that even these estimates are conservative.

At the barest of minima, these affidavits and the authors' references to corroborative vi:ews held by their colleagues demonstrate the existence of a substantial body of e}Cpert opinion which attributes.-great significance to radiation exposures such.as those.that have occurred and will occur at Surry.

Even the Commission referred to the "controversy in the scientific community as to the effects of such e~posures, 11 FES at A-5, and the Staff itself, in response to.*Petitioners' comments, made oblique reference to "conflicting theories set forth by researchers such as I*!ancuso, Stewart, and Knea:l."

FES at 8-5.

It went on to describe* the*se theories as unsupported by the "consensus of experts."

Once again, NEPA requres much more.

A prominent feature of the.statutory context created by NEPA is the requirement that the agency acknowledge and consider 'responsible scientific opinion concerning possible adverse environmental effects' which is contrary to the official agency position.

NRDC v. NRC, 178 U.S. App. D.C. 336, 547 F.2d 633, 645 (1976), *.

citing Committee for Nuclear Responsibility, Inc*~ v. Seaborg, 149 U.S. App. D.C. 380, 463 F.2d 783, 787 (1971) *. Accord, County of Suffolk v. Secretary of the Interior,562 F.2d 1368, 1383 (2d Cir. 1977).

Similarly, NEPA requires that when the views of another governmental agency are known to conflict with those. of the preparer, some discussion of the competing position is essential.

Burkey v. Ellis, 483 F.Supp. 897, 911 (N.D. Ala. 1979}.

Even where the views of a sister agency are. rt9t in cop.f l~ct *'. ;

with preparer' s,

.:f.f *tha.:t 'agency has expertise in the fiel"d, it must be consulted and its views must be included in the impact statement. NEPA §102(2) (c), 42 U.S.C. §4332(2) Cc).

The Environ-mental Protection Agency is charged w~th regulation of public radiation exposures and has set maximum acceptable exposures from nuclear power-related activities.

The divergence between its scientific views and the NRC's is evident from the EPA's estab-lishment of 25 rnillirems as the permissible exposure, a figure 200 times lower than the NRC's standards* for workers.

See 40 C.F.R.

§ 190 (1979) (EPA); 10 C.F.R. pt. 20. (1979) (NRC).

Nevertheless, the NRC never consulted with nor obtained comments from EPA.

Incredible as it may seem, the draft statement was sent to an EPA*.

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marine biology lab in Rhode Island.

The o~fice naturally declined to comment, since the matter was outside its expertise.

See.FES at B-2.

Evidently the NRC made no further attempt to obtain EPA comments, not even the routine EIS review mandated by§ 309 of the Clean Air Act, 42 U. S.C. § 7609. "The circ-u.lation and review requirements are critical features" of the NEPA process which require "more than a cursory or ritualistic request for information."

I-291 Why*? Association v. Burns, 372 F. Supp. 223 (D. Conn. 1974);

W. Rodgers, Environmental Law §7.4 at 729 (1977). The -failure to include substantive EPA comments is a material defect in the FES which renders it invalid.

The failure of the FES to address a_series of other environ-mental impacts of the Surry projects furnishes this Court with independently sufficient grounds for striking it.

For example, shutting down the two units on an alternate basis requires that replacement power be produced by the equivalent of a large fossil-fueled power plant for a year and a half.

Despite Petitioners' repeated urging that the resulting air emissions be considered, the NRC

staff declined, stating in the FES that such impacts were beyon1 its scope.

FES at B~3.

In addition, the Surry project will lead to =re~uent discharges into the James River of contaminated water. * *Even if these discharges were likely to have insubstantial envir::>r.:.Lle.ntal impacts, some discussion. of the agency's opinion on that point is.obviously necessary, if only to respond to the curiosity of the public.

Yet the body of the FES omits discussion of tl:ese discharges entirely.

An NRC response to a comment mentions

that they were discussed in a non-published correspondence in 1979.

See FES at 8-7. See also EDF v. Corps of Engineers, 492:"F.2d 1123, 1130 (5th Cir., 1974) (outside documents cannot render EIS adequate).

Similar absence of consideration was accorded the economic impact of the operation upon VEPCO ratepayers.

In a response to a comment the NRC offered that even if the charge for the action were $104 per residence it would be insignificant "in relation to existing conditions and considering that tangible benefits result from the repair project." FES at 8-7. ~See Image of Greater San Antonio v. Brown, 570 F.2d 517 (5th Cir. 1978) (socio-economic effects occurring with direct environmental effects must be included in EIS);*City* of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975) (secondary impacts may be as significant as direct impacts).

3.

The FES Inadequately Analyzes Alternatives to the

~urry Project An impact statement's discussion of alternatives, referred to variously as its "heart," 40 C.F.R. § 1502.14 (1979) or "linchpin,"

NRDC v. Callawav, 524 F.2d 79, 92 (2d Cir. 1975) must give reasonably detailed treatment to all reasonable alternatives. NRDC

v. Hortcn,148 U.S. App. D.C. 5, 458 F.2d 827, 837-838 (1972).

The FES violates both of these commands.

First, it gives virtually no consideration to the alternative of "retubing" the steam generator.

Al though the *1eading research in this area indicates that this option may lead to substantial savings in terms of both economics and worker exposures,..

~

Appendix A*at 30-33, the FES gives only the slimmest hint of that fact, adding that this technique may be an alternative "in the future." FES at 5-2.

This Court has held that where an agency determines to proceed with an action in spite of such scientific uncertainty, the impact statement must at least describe the information that is available, and make some attempt to justify the decision to go ahead.

Alaska v. Andrus, 188 U.S

App. D.C. 202, 580 F.2d 465, 475-476 (1978).

See*also Scientists' Institute for Public Information v. AEC, 156 U.S.

App. D.C. 395, 481 F. 2d 1079,1098 (1972}.

Moreover, the statement must fully address the essentially obvious alternatives of delaying the action pending completion of further research.

Alaska v. Andrus, supra. An estimate should be made as to how long such studi.es should take, and whether the wait is worth it.

Where

delay appears to be a reasonable alternative but is not addressed, the impact statement should be voided. National Wildlife Federation

v. Andr~s, 440 F. Supp 1245 (D.D.C. 1977); EDF v. Stamm, 6 ELR 20621, 20623 (!1.D. Cal. 1976). In this case a short delay might reveal that the "retubing" alternative would save lives and money.

The NRC must be required at least to face it directly.

Eq~ally serious is the failure of the FES to make any men ti.on of ano-=her important method of repair for steam genera tors:

"resleeving."

This technique is described in an NRC document released earlier this year entitled "Summary of Operating Experience witI1 Recirculating Steam Generators."

It is reproduced in relevant part in Appendix D.

This technique not only appears

inherently reasonable, but actually has been carried out at the Palisades plant.

The results were apparently satisfactory, since it is also u.~derway at the San Onofre nuclear power station. Cf.

Wall Street Journal, Sept. 4, 1980, at 34.* The absence from the Surry FES of any analysis of this process exemplifies the statement's inadequacy.

4.

The Economic Analyses Within the FES Are Faulty and Wholly Mi.sleading Section 102 (2) (B) of NEPA requires that agencies give environmental values appropriate consideration in decisionmaking along with economic and technical considerations. 42 U.S.C. §4332 (2) (B).

The Act's other directives to consider alternatives, ~--

§§ 102 (2) (C) (iii) and 102(2) CE), combine to mandate precise.cost estimates of alternative courses of action, Silva v. Lynn, 482 F. 2d 1282,_1287 (2d. Cir. 1973) 1 in order that claimed economic benefits may be measured against environmental costs. Calvert Cliffs Coorc'.inating Co:rranittee v. AEC, 146 U.S. App. *n.c. 33*,

449 F. 2d 1109, 1123 (1971).

The economic analyses in the Surry FES are based on 1977 dollars~

In the last three years,_however, nuclear plant construction costs have risen by at least 40 percent, and the cost of replacement power has more than doubled.

See Washington Post,. March 17, 1979

at A2, col. l (statement by VEPCO that cost of replacement power for one Surry Unit had risen to approximately $400,000/day.

Compare wit.~ FES at 5-1 ($180,000/day).

While the use of outdatetl cost figures is a per se violation of NEPA, Burkey v. Ellis, 483

- F. Supp. 897, 905 and n.2 {N.D. Ala. 1979), the devasting impacts on the substance.of the EIS are plain.

The overall cost-benefit balance is skewed in favor of proceeding with the action, and alternatives requiri~g less plant "down-time" appear less desirable.

In short, the FES is essentially useless to either decisionmakers or the public.

Particularly galling is th~ agency's suggestion, FES at 8-4, that. this defect is trifling since it is a "simple matter to escalate the [cost estimates] as the commenter shows."

In their comments on the DES Petitioners propo"*sed that the agency consider the possibility that the steam generators might have to be replaced a second time since neither the cause of nor the cure for steam generator.degradation has. been determined.

The rejection of Petitioners proposal a~d the grounds offered display a direct disregard for the Act's requirement;s.

The NRC's refusal to consider the possibility of a second steam generator repair is precisely the kfnd of "leap before*

looking" decisionmaking that the Act was intended to prevent.

While the FES dismisses the possibility as "speculation," FES at 8-6, the fact is that such "speculation" is inherent in the NEPA process*.

NEPA's requirement for forecasting environment consequences far into the future implies the need for prediction based on existing technology and those developments which can be extrapolated from it.

NRDC v." N~C, 178 U.S. App. D.C. 336, 54J F.2d 633, 639-640 (1976).

Similarly, the NRC's comment that."[t]here is no requirement that the Statement considers future actions which may never occur,"

runs directly counter to the case law.

Indeed, future consequences

~-~--- ----

- (

of present courses of action must be anticipated and dealt with.

See Scientists' Institute, supra, 481 F.2d at 1092, 1093; Minnesota

v. NRC, 195 U.S. App. D.C.- 234, 602 F.2d 412 (1979).

C.

Petitioners Are Threatened With Irreparable Harm Unless this Court grants Petitioners' motion for a stay before October 5, 1980, they will be harmed irreparably. After that date a chain of events will be set in motion that will make a subsequent return to the status quo nearly impossible.

Many of Petitioners' individual members live within a few miles of the Surry station-and thus are at risk from its adverse envirorunental impacts.

However, the bulk of the offsite environmental effects of the action stem from the firing of coal and oil burning plants else-where in the region and will be felt regionally.

Most of Petitioners' members are VEPCO ratepayers who will feel the bite of a $300 million expense that the company might other,wise avoid.

Of greater_ significance is the harm that Petitioners will sustain to their statutory rights if the status.quo is not maintained during the pendency of this litigation.

In defense of their ~ights under NEPA Petitioners persuaded the NRC to prepare an impact statement, and since then have participated substantially, if not successfully, in the development of the Surry FES.

Unless Petitioners are afforded judicial review of the FES prior to the taking of action pu=suant to it, their past efforts will have been rendered meaningless and the statutory purposes thwarted.

This Court recognized several years ago that threatened harms of this type are more than adequate to support judicial restraint of agency action, Jones v. District of Columbia Development Land Agency, 162

U.S. App. D.C. 366, 499 F.2d 502, 512-513 (1974), and that the issuance of such rel.ief goes far to prese:i;ve the integrity of the EIS process.

Id.; Scherr v. Volpe, 466 F.2d 1027, 2134 (7th Cir. 1972).

D.

Neither the Interests of the Respondent nor the Public Call for the Denial of*a Stay The NRC, of course, has no tangible interest which might be harmed by a stay.

In any event, its clear violation of NEPA leaves it poorly situated to plead-equities.

VEPCO, on the other hand, will undoubtedly suffer a slight pecuniary loss if it is forced to postpone the Surry project.

It bears emphasis, however, that this is not a case in which one party is seeking an order preventin~ the construction or operation of a power plant.

If the relief sought by Petitioners is granted VEPCO will be free to resume business as usual at Surry, generating p:,wer and revenue.

Its risk is limited to the essentially administrative costs of rescheduling its construction plans.

. More s1:.bstantia.l is the impact of a denial of a stay upon tb.e puhlic interest.

As a general matter, the public interest in law enfo=cer.:er:t makes injunctive relief a presumptively appropriate response to sta~utory violations.

Cf. U.S. v. San Francisco, 310 U.S." 16, 30-:31 (1940).

Further, in light of central role of the*co'u=-:s i::i policin<; agency compliance with NEPA and the tradition o= the judiciary to take pains to protect the public health, EDF v. Ruckelshaus; 142 U.S. App. D.C. 74, 439 F.2d 584, 598 (1971}

(Bazelon, J., concurring), it is incumbent upon the

Court to resolve anl, doubt as to the propriety of a stay in favor of the.health of the workers at the Surry station.

If post-ponement of the project for a few months results in the decision to employ a safer means of repairing the plant, the savings in lives and human health, not to mention potential economic returns, will far outweigh the risk that VEPCO will incur short:..run costs in rearranging its construction schedule.

Dated:

September 18, 1980 Washington, D.C.

Respectfully submitted, II Ii

,-->~ Y<~.. /T'J James --B. Doughe.tty~v Suite 620 1346 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 452-9600 Counsel for Petitioners

/

APPENDIX A PEI'ITICN FOR EMERGENCY.AND REMEDIAL ACTICN

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION PETITION OF THE POTOMAC ALLIANCE, ET AL.,

FOR EMERGENCY AND REMEDIAL ACTION

TABLE OF CONTENTS I.

Introduction.

II.

Description of the Petitioners III.

Jurisdiction..................

IV.

Statement of the Facts.............

A.

Backgrounc;i......

B.

The Proposed Replacement Program......

V.

The NRC Staff Violated the National Environmen.tal Policy Act in Issuing Amendment Nos. 46 and 47 to VEPCO's Operating Licenses for the Surry 1

4 5

7 7

8 Station *.***.*******..******. 11 A.

The Issuance of the Ope.rating License Amendments Constituted a Major Federal Action Significantly Affecting the Environment and Thus Required Preparation of an Environmental Impact Statement *. *

B.

The Cumulative Effects of the NRC Program of Approving Steam Generator Replacement 11 Projects Require Preparation of a Programmatic Environmental Impact Statement ********. 24

c.

D.

The Environmental Impact Appraisal Prepared for the Surry Project is Legally Inadequate The Staff Approved the Surry Steam Generator Replacement Without the Full Consideration of Al tern a ti ve s Required by NEPA.... -..

VI.

The Staff Violated the Federal Water Pollution Control Act in Issuing Amendment Nos. 46 and 47 to v==PCO's O?e~ating Licenses for the Surry Station 26 29 Sta tio!l 3 7

VII.

VIII.

IX.

e

The Issuance of the Operating License Amendments Was Arbitrary and Capricious and Violated the Administra-t~ve Procedure Act and the Atomic Energy Act.*.. 40 A.

The Statutory Standards............

B.

The Decision To Approve the Surry Project and the Choice of the Replacement Alternative Over the Retubing Alternative Were Based on Invalid Analyses of Occupational Radiation 40 Exposures 42

c.

The Staff's Calculation of the Economic Cost of the Project Was Misleading and Invalid.

The License Amendments Were Issued Contrary to*

NRC Regulations *******..*****.*

A.

The License Amendments Authorize a Material Alteration of the Surry Station; Therefore the Issuance of a Construction Permit Was Required 47 50 Under NRC Regulations.

5 0 B.

The Steam Generator Replacement Project Provides for Long-Term Disposal of Nuclear Waste Without Receipt of Commission Approval as Required Under NRC Regulations *.*.**.* 53 C.

The Steam Generator Replacement Project Violates NRC Regulations Requiring Occupational Radiation Exposures To Be Kept as Low as is Reasonably Achievable * * *. * * * *.. *. *

5 5 D.

The Steam Generator Replacement Project Constitates a Partial Dismantling of Units 1 and 2 Without Receipt of Commission Approval as Required Under Its Regulations..

56 Relief Requested 59

I.

Introduction This petition, which is presented on:behalf of the Potomac Alliance, Citizens Energy Forum, Inc., the Virginia Sunshine Alliance, and Truth in Power, Inc., documents a host of statutory and regulatory violations by the Nuclear Regulatory Commission (NRC) staff in*connection with its approval of an application by the Virginia Electric and Power Co. (VEPCO). for amendments to its operating license nos. DPR-32 and DPR-37 for the Surry Power Station, Units 1 and 2.

These amendments permit, inter alia, the partial replacement, refurbishing, and redesign of the six steam generators at the Surry Station.

The amendments also permit the construction of a large on-site facility in which much of the radioa.ctive waste materials generated by the project will be stored indefinitely, for a period of at least 30-50 years.

This project is an undertaking of extensive dimensions.

The estimated cost exceeds $150 million.

It involves hundreds of workers in round-the-clock shifts for a period of at least twelve months.

During this period these workers will receive aggregate radiation doses equivalent to the doses received by workers at a normally operating plant over a period of four to eleven years.

The action also involves. sizeable discharges of radioactivity and other pollutants to the environ~ent.in the form of airborne emissions, discharges into neighboring bodies of water, and secondary impacts associa-ted with the construction activities.

*e Moreover, the Surry steam generator replacement project is only the.first in what proo.i.ses to be an extensive series of similar operations at nuclear plants aroi.md the cotmtry.

At least two.

other operators of nuclear plants are currently in advanced stages of planning steam generator replacement projects.

Such projects are necessitated by design defects which appear.to be endemic to pressurized water reactors manufactured by Westinghouse.

At least twenty plants of this design have sustained damage of the same nature.

Despite the proportions of the ~perations, the'magni-tude of the hea.l th risks a."'ld injury to workers, the significance of the other environmental impacts, and the implication for perhaps dozens of future licensing decisions, the staff approved the appli-cation summarily and in disregard of required procedures.

No public hearing was held.

No environmental impact statement was prepared.

Evidently no attempt was made to secure the certifica-tion of the State of Virginia, as required by the Federal Water Pollution Control Act.

Though the licensee's application con-tained patent irregularities, it was essentially rubber-stamped b

th t *=~

.~

t

~ 1 y

e s a.:.:r::

'Kl...... ou rnean1.:;.g~u scrutiny.

This project has aroused considerable public controversy.

Ccrresponde~ce requesti~g =urther explanation of its actions have been sent to the Corr.:!'lission by representatives of the United States Senate, the* Co1.L..1om.-.-realth of Virginia, the District of Columbia City Council, environmental organizations, and the public at large.

Petitions filed pursuant to 10 CFR §2.206 requesting fuller consideration of this r::atter were recently denied by the

Director of Nuclear Reactor Regulation.

For these and other reasons, this petition is addressed directly to the Commission.

It requests that immediate action be taken both to prevent the needless exposure of construction workers to radiation, and to ensure that this and all future proposals to renovate nuclear reactors are treated by the Staff in conformity with the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act (FWPCA), and the Commission's regulations.

II.

Description of the Petitioners This petition is* filed on behalf of four organizations with members residing in the vicinity of the Surry Power Station and throughout the licensee's service area and environs. Although the petitioners'. activities are fo.r the most part diversified and dis-tinct, their objectives share a common theme: to promote the develop-ment of benign and renewable sources of energy, and. to support the generation and distribution of energy from existing sources in a manner which is sa~e, environmentally acceptable, and consistent with the public interest.

The Potomac Alliance is a non-profit organization of 400 members residing principally in the northern Virginia and Washington, D.C.

area. Since its formation in 1977 the Alliance has sponsored a wide range of public activities,* including the publication and public di~-

tribution of a monthly newsletter. Spokespersons for the Alliance have appeared in high schools, at public meetings, and on radio and tele-vision, and have presented testimony at hearings held by agencies of federal, state and local governments. The Alliance is currently an intervenor in a proceeding before the NRC concerning the proposed modification of the spent fuel storage pool at VEPCO's North Anna Nuclear Power Station.

Citizens Energy Forum, Inc. (CEF) is an incorporated, non-p~ofit membershi? orga~ization concerned with energy issues in the State of Virginia.. CEF is extensively involved in public outreach activities, includi~g frequent presentation of testimony to state and local governments and media appearances. CEF has been awarded a grant by the U. s. Depa_rt.'Tlent of Energy to consider the application of solar energy technologies in the state and has intervened independently

-s-in a pending NRC proceeding concerning VEPCO's North Anna station.

Truth in Power, Inc. is a non-profit organization which for years has taken an active role in the energy debate in Virginia through the publication of a state-wide newsletter.

Several of* its members live within 30 miles of the Surry Station.

The Virginia Sunshine Alliance is a coalition of organiza-tional and individual safe energy advocates whose activities center on the region stretching from the Chesapeake Bay to the Blue Ridge Mountains. 1he Virginia Sunshine Alliance supports the efforts of its members and conducts an independent research and educational program.

III.

Jurisdiction:

This petition reques.ts the Commission to exercise its authority under the Atomic Energy Act, 42 U.S. C. § § 2233 (d), 2236-(a),

and 2237, as well as its own regulations, 10 CFR §2.204, 2.206(c)(l),*

50.54, 50.100, and 50.109 (1978), to review independently the activ-ities of the NRC staff.

Although 10 CFR §2.206(a) provides expressly for th~ filing cf petitions to show cause with the Dir-1; ector of Nuclear Reactor Regulation (DNRR).,- this avenue of relief has been foreclosed in this case.

First, petitions raising similar issues and seeking similar relief were denied by the DNRR in

~e~cra~da dated Jan~ar~ 24 and April 4, 1979.

Secondly, at several important poin:s this petition alleges violations by the

1.

Or, under circur.istances inappropriate to this matter, with the Director of Nuclear Materials Safety and Safeguards.

D~RR and/or other members of the NRC staff of duties imposed by statute and regulation.

In that 10 CFR §2.206 envisions principally requests for objective evaluation by the staff of violations by licensees, the filing of a petition with the Staff is therefore inappropriate.

Petitioners acknowledge that an opportunity for a hearing en this matter was made available in 1977. It is submitted, how-ever, that petitioners' failure to respond to that notice does influence the vitality of this petition in any way; at:~.that. ;

early date most of the documents on which this petition relies

~ere not in existence, and most of the-violations alleged herein had yet to occur. Indeed, virtually none of the issues raised in this petition were cognizable prior to January 1979.

This petition calls upon the Commission to fulfill its "overriding responsibility for assuring public health artd safety 1/

in the operation of nuclear power facilities."-

The Commission's authority to entertain petitions seeking remedial action is set 2/

forth in 10 CFR §2.206(c) (1) and has been exercised previously.-

l..

In.the *:*!atte=:- of Consolidated Edison Co. of New York, Inc.

(Indian Point, units 1, 2, and 3) CLI-75-8 (1975).

See also Pov1~r Reactor Development Co., 1 AEC 128, 136 (1959).

2.

See, e.g. Union of Concerned Scientists Petition for Emergency and Re~edial Action, CLI-78-6, 7 NRC 400 (1978).

IV.

Statement of the. Facts A~

Backgro"'.lnd

Pressurized ~ater reactors (PWR's), such as those installed at the Surry ?ewer Station, differ from reactors of other design principally because of their reliance on steam generators. The principal function of t::1e stea.-a generator is to transfer heat fr*orn the primary cooling system, which removes heat from the reactor core via highly radioactive fluid circulated at high pressure and volume, to the secondary cooling system.

The latter system delivers steam at high temperature a."l.d pressure, though ~ith relatively low radioactivity, to turbines which generate electricity.

The steam generator thus serves as "a oaj or barrier against fission product release to I

the environment. "l Of the* 42 PWR' s now in domestic operation, at least 20 are knov.'!1 to have experienced 1.manticipated corrosion of steam 2/

generator tubing. -

The Surry Station's experience with t.his pr*oblem is representative of problems which have been or are likely to be experienced by the re~ainder of these 20 reactors.

In 1975, VE?CO observed that many of the steam generator tubes and tube sup?crt plates in Units 1 and 2 were experiencing severe corrosion ~"ld ceformation.

This problem is attributed to

1.

?e~ulato=7 G~i~e 1.121 at 2.

2.

"Minutes of :::;eecing of the Advisory Connnittee on Reactor Safeguards Subco!!ll!littee on Surry Nuclear Power Station, October 28, 1978 (hereafter ACRS meeting), Tr. at 4 (remarks o= D=. Liaw).

*e a buildup of corrosion products in the crevices between the tubes and tube support plates-.

As these corrosion products accumulate, the tubes become pinched, or "dented," and are subjected to greatly increased. stress and corrosion.

From these effects flow a variety of ills, including splitting and cracking of the tubes, conseq.uent leakage of primary coolant into the secondary system, and substan-tially increased emissions of airborne radioactivi~y.

The degeneration of the steam generators at Surry prompted the Commiss~on in September of 1975 to require increased inspec-tion and servicing by the utility of the reactors. Servicing con-sists of plugging an increasing nurnber_of the defective*tubes on an ad hoc basis, with the result that more than 21 percent of the steam generator tubes in each unit are now inoperative. Not surpris~

ingly, inspection and tube plugging entails the accumulation of worker exposures to radiation in amounts greatly in excess *Of those expected at normally functioning reactors. Further, the economic costs of ob-taining replacement power during periods of "downtime" have been considerable.

B.

The Pro9osed Re?lacem:ent Pr*ogram on.January 19, 1978, the NRC issued amendment nos. 46 and 47 to \\TEPCO's operating licenses for the Surry units. These amendments approved without modification the licensee's proposed 1/

re:;?air prcgra.-n.

T:ie ::ollowi::-.g 2/

to be followed for* each unit.-

is a summary of the procedures

1.

Steam Generator Repair Program, Surry Power Station Units land 2, u'une 1978, as anended (hereafter "Repair Program").

2.

The Repair Program orovides for Unit 1 to remain in operation while Unit 2 is under repair (approximately six months) and

ice versa.

(1)

The reactor will be defueled completely and the partially spent fuel transferred to the spent fuel storage pool.

Portions*of the pressurizer cubicle and polar crane walls will be cut and removed, and temporary systems (scaffolding, ventilation, lighting, etc.) will be installed.

(2)

Primary and secondary cooling system piping to each steam generator will be cut.

The exterior layer of. each steam generator will then be cut in its midsection; the upper assemblies*

will be stored within the.containment while the lower assemblies will be hauled out of the containment through the equipment hatch.

(3)

Replacement lower assemblies of slightly different design, after ~ransport to the site by barge, will be moved into the containment and lowered into position.

Many components of the upper assemblies* will be replaced and modified, after which

, they will be lowered into position above the lower assemblies and rewelded.

Other piping systems will be reconnected and the.

crane and pressurizer cubicle walls repaired.

(4)

After the temporary systems have been removed, the partially spent fuel will be returned to the reactor; various tests will then be performed.and the reactor will be reactivated.

In* addition, the licensee will spend approximately $27 rr:illion to equip each unit with "full-flow condensate polishing 1/

der.,:i..neralizer syste:ns. "-

To house these systems a separate building

,;,;ill be constructed on the site.

The repair program also calls

1.

A brief description*of these systems can be found at §5.3.2.3.2 of the Repair Program.

for the construction of a "long-term storage" facility on the site.

The contaminated steam generator lower assemblies will be placed within this structure and are to remain there for an indefinite period of perhaps as long as 50 years.

V.

The NRC Staff Violated the National Environmental Policy Act in Issuing Amendment Nos. 46 and:47 to VEPCO's Operating Licenses for the Surry Station.

A.

The Issuance of the Operating License Amendments Constituted a Major Federal Action Significantly Affecting the Environment and Thus Required Preparation of an Environmental Impact Statement.

The approval of VEPCO's proposal to renovate, the Surry 1/

reactor is a "major Federal action" within the meaning of NEPA. -

In the present context a closer question is w~ether the action in dispute is one which will significantly affect the environment.

A mere recital of the adverse environmental impacts of this project demonstrates that it is one for which an environmental impact statement (EIS) is required.

First, the project will expose construction personnel to 2/

a minimum of 41~0 "man-reI:l.

11 As will be discussed further below, this estimate is only a fraction of the dosage estimated by an *independent~esearch laboratory which conducted a generic study of such projects on contract to the Commission.

But even assuming for the moment the validity of the 4140 man-rem figure, it rep-resents a radioactive dose exposure for the hundreds of persons working on the project equivalent to that which would be sustained by the ecployees at a normally functioning plant over a

1.

See, i."9:.., Hanly v. !*Htchell, 460 F.2d 640, 644, 2 ELR 20216, 20218 (2d Cir.), cert. denied, 409 U.S. 990 (1972):

Southwest*Keighbo~hood ~~ssernbly v. Eckerd, 445 F. Supp. 1195, 8 ELR 20466, 20468 (D.D.C. 1978).

2.

See Office of ~uclear Reactor Regulation, Safety Evaluation Report (hereafter SER) at 16; Environmental Impact Appraisal by the Office of ~uclear Reactor Regulation, License Nos.

DPR-32 and DPR-37, Virginia Electric and Power Company, Surry Power Station, Units 1 and 2 (hereafter EIA) at 6; Repair Progra~ at 5.3.2.1.

period of four years.

It is not allege~ that this. dosage will be administered in violation of 20 CFR §101; with sufficiently wide distribution among the work force and over time, the dosage can be maintained within 2/

the 3 man-rem per quarter limit.

Nevertheless, recent studies-indicate that radiation exposure levels once thought acceptable may in fact be quite dangerous.

Such studies certa~nly add weight to the argument that when a federal agency is contemplating a major federal action involving human impacts of from 4;000-10,000 man-rems, such a step should be taken only after the kind of thorough analysis and publi:c* comment that an environmental impact statement is. designed to provide.

The renovation of the Surry tmits will also generate large quantities of radioactive solid waste.

In the EIA the staff es-timated that the waste produced will total 4,600_]_/ cubic meters 4/

in volume and will contain 74 curies of radioactivity....,..* A notable omission from this estimate is the radioactive waste generated in the form of the discarded steam generators.

Six

1.

In the EIA the Staff cited an average figure of 500 man-rems of exposure for workers at all nuclear units (of which there are two at Surry). EIA at 7. Their figure includes those *units, such as Surry 1* and 2, which have required "major maintenance" involving doses of up to 4000 man-rems annually.

2.

Draft Report, Interagency Task Force on Ionizing Radiation, February 27, 1979.

3.

Compare* w{th VEPCO's estimate of 1,480 cubic meters. Repair Program at 9.A.14-1.

4.

EIA at 12-13.

The staff then compared the 74 curies figure to the a.-nounts of waste w:iich have been generated at Surry over the last two years, during whic:i the solid waste (620 curies) generated at the plant was inevitably greater than that generated at a normally functioning plant beca~se of the extensive maintenance required during those years. No~ing that the former figure is roughly 10 percent* of the latter, the Staff concluded that the former quantity is not environmentally significant. In terms of volume, the repair action will qenerate over seven times the recently observed annual quantities.

of these structures, each of which measures roughly 43 by 14 feet, will be.disposed of.

In the aggregate they will weigh 1,.300 tons, and will contain appro~imately 16,000 curies!/ of radioactivity.

This represents roughly 50 times the radioactivity contained annually 2/

in Surry solid waste during 1973, 1974, 1976 and 1977.~*

Compare this figure with the following statement by the Staff:

Since the solid wastes [generated by the repair program] represent an impact which is a small par¥ of the impact of soTid wastes rom normal operation, we conclude that the radiological impact is not environmentally significant....1J There is no justification for the staff and the licensee's attempts to distinguish between "solid waste" and discarded steam generators.

Each qualify as "byproduct material" as defined in 10 CFR §30.4 and present analogous environmental hazards.

The alternative of disposing of the steam generators, including their

replacement with new generators which will be irradiated and con-verted into more wastes, was chosen among other alternatives under 4/

which they would not have been removed.~

Therefore, the creation

1.

EIA at 13.

Corr.-::,are with VEPCO's estimate of 8,400.

Repair 'Program at 5.3.1.

2.

See SER at 23.

3.

EIA at 13 (ewphasis added).

~-

P.s \\,"1ill ~e C:isc~..1ssed more fully below, "retubing o.f the ste\\=-::i *ge:1erato::-s and plant closure were alternatives which would not requi=e disposal of the steam generators: these alternatives were considered and rejected.*

-I4-of these 1,300 tons of nuclear waste, in addition to a 6,000 ton storage facility which will presumably become radioactive and have to be deco:n.-nissioned, was an avoidable option which was deliberately selected. The environnental costs of making this choice must be addressed for purposes of making the threshold determination under NEPA; the staff's failure to do.so violates the Act's command.

Another major source of environmental pollution resulting from the staff's approval of VEPCO' s program consists of e.ffluent discharges to the James River.

These discharges fall* into two categories: first, the replacement program itself will ge*nerate liquid waste byproducts, in the form of used decontamination solu-tions and laundry waste water.

Although the EIA makes no attempt to estimate the quantity or environmental significance of these discharges, the SER recites the licensee's estimate of 12,240 gallons!/ per day.

These fluids will apparently be dumped directly into the James River without treatment other than that necessary to control radioactivity.

Secondly, staff-approved construction of two "full-flow condensate polishing demineralizer systems" will result directly in the discharge of more than 25,000 gallons of waste fluids per day.

These discharges, as described by the licensee,-.1... / will contain a long list of dissolved metals, acids, and other chemicals.

. l"k

.r urcner:r:ore,

'..:ID :. e t:.e laundry waste water from the repair op-eration, t~ese pol1utE.11ts will apparently be released directly to

1.

Com?are wit~ the Battelle generic estimate of over 22,000 gallons per day.

Battelle Pacific Northwest Laboratories, Radiolocical Assessment of Steam Generator Removal and Re~laceient (Sept. 1978) (hereafter Battelle).

2.

See Renair Program at 5. 3-4.

the environment over the remaining life of the Station.

Another sig~ificant and direct impact of the Surry project is the burden that will have to be shouldered by VEPCO's 1/

ratepayers in order to finance it.-

The applicant has 2/

estimated that the total project cost will be $167 million.-

Based on recent testimony by a VEPCO official before a 3/

congressional subcommittee,-

the replacement program will 4/

cost the company's.customers an average of $12 8. 0 0, -

while typical residential*ratepayers may have to pay 5/

$38.00-to finance such an undertaking. Petitioners assert that this is a significant depletion of the average household's disposable income.

Moreover, recent trends in the price of oil

1.

There is a criticp.l distinction between the economic impacts of this replacement program and an initial licensing.

In the latter case, the economic costs to the ratepayers will be offset, to a greater or lesser extent, by the receipt of electrical power.

There is thus a quid pro quo and arguably no adverse economic impact. But in the case of a steam generator replacement program, the ratepayers are paying solely to assure the normal operations of'the plant, which is something they have paid for previously (by its inclusion in the rate base).

There is thus no quid pro quo and no tangible benefit to offset their pecuniary injury.

It should therefore be considered an adverse economic effect.

2.

Repair Program at 5.2-1, 5.3-6.

3.

Hearings before the Nuclear Regulation Subcommittee of the Senate Committee on Environment and Public Works, March 16, 1979 (testi..-nony of E. Ashby Baum).

4.

Assu~i~c that V:SPCO's 1.3 ~illion ratepayers will bear the cost.of-the project, and that the project will meet its estimated cost of $1167 million.

5.

VEPCO's representative i~dicated that for every $12 million lost by the company because of the recent emergency closure of Surry Unit #1, the typical residential ratepayer would be assessed $2.75.

~ashington Post, March 17, 1979 at A2, col. 1.

e e e e

- suggest the steam generator replacement project will in fact cost a minimum of $227 million, or approximately $175 per 1/

customer and $52 per average residence.-

Whereas the Commission's organic statutory authority may*-

impose upon it a very limited, if any, obligation to.factor economic issues into licensing decisions, when assessing the environmental effects of a proposed action under NEPA the Commission must "utilize a systematic, interdisci-*

2/

plinary approach"-

which gives roughly equivalent con-siderations to environmental, economic, and technical issues.

NEPA requires that social and economic effects

. of major federal actions be fully considered when an agency is assessing the environmental significance of a.

project for purposes of the threshold EIS determination.

3/

In McDowell v. Schlesinger,-

for example,. the court found that the proposed federal action at issue would have virtually no significant adverse environmental impacts other than those affecting the economic and employment status of the region's residents.

Finding such effects independently cognizable under NEPA and significant within the meaning of §102(2) (C), the court declared the EIA befoie it invalid and enjoined all progress

1.

The congressional testimony of VEPCO's spokesman shows that the cost o= replacement power during repairs has risen to $144 million

($12 nillion* per rnont~), not the $66 million estimated by the company and refle_cted in the EIA. *

2.

NEPA, '§102 (2) (A), 42 _u.s.c. §4332 (2) (A)

(1978).

3.

404 F. Supp. 221, 6 ELR 20224 (W.D. Mo. 1975) (proposed relocation of military base constitutes major federal action significantly affecting the environment.)

Accord, Tierrasanta Community Council v. Richardson, F. Supp.

, 4 ELR 20307 (S.D. Cal. 1973).

A EA. 1/a.

on the project ~d~completion of an

]91' The economic impacts of federal actions are typically considered "secondary" ~ffects because the affected community does not*pay for the cost of the project (f~nding comes from governmental revenues} but suffers less direct effects, such as-increased congestion or decreased 'local tax revenues. However, the bill for the Surry project will be presented to the local residents-.,

Regardless of how such effects are labeled, -t;.hey a.re s-ignificant~

and their omission from the staff's threshold dete:rmination stands in violation of NEPA.

VEPCO's steam generator replacement program also entails sizeable secondary impacts. Foremost among these is the utility's purchase of $66 million.of replacement electricity, and the environ-mental effects associated with its generation. Such impacts, even though offset by a reduction in the impacts of the Surry Station's

. 2/

operations, are no less cognizable under NEPA than any other impacts.-

Simply the combustion of the fuel for this power will entail "significant" environmental costs, and represents an "irreversible and irretrievable commitment of resources" under §102(2) (C) (v) of NEPA. Yet no mention

1.

Some courts have declined to order preparation of an EIS where the impacts of the challenged action are strictly socio-economic. See,~, Image of Greater San ~tonic v.

Brown,

F. 2d

, 8 ELR 20324, 20325 (5th Cir. 1978);

Metlakatla Indian Community v. Adams, 427 F. Supp. 871, 7 ELR 20406, 20407-08 (D.D.C. 1977); Township of Dover v. U.S. Postal Service, 429 F. Supp. 295, 7 ELR 20508 (D.N.J. 1977).

Each of these decisions recognizes, however, that the likeli-hood of direct ir..oacts on the natural environment acts to trigger the duty£~ fully-consider concurrent socio-economic effects.

See also City of Davis v. Coleman, 521 F.2d 661, 5 ELR 20633, 20638 (9th Cir. 1975) (consideration of socio-economic impacts is frequently more essential than consideration of direct ecological effects}.

2.

40 CFR §1508.S(b) (1979} (NEPA regulations of Council on

Environmental Quality); 40 CFR §1500. 6 (b)

(1978) (EIS guidelines of Council on Enviro~mental Quality).

is found in any of~ doc~ents prepared by~ staff.

Other secondary impacts of the action include the consump-tion of gasoline, the generation of air pollution, and the creation of traffic congestion by the 400 workers that will be employed on site.24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day for at least a year.

Further description of the long list of significant envir-onmental impacts of this major federal action should not be nec-essary.

Briefly, such additional impacts include:

}

emissions of radioactive gaseous air pollutants}_/

the environmental effects of constructing the long-term waste storage facility and additional buildings to house other 2/

newly-added components to the plant,-

including*the irreversible commitment of thousands of tons of steel and concrete; the noise and dust created as a result of the above operations, as well -as the use of heavy equipment to trans-port new and discarded steam generators around the.s.ite; the risks of non-radiological injury to workers, such as the recent hospitalization of 26 men for inhalation of vaporized metal in connection with the action in question, while preparing* for the steam generator replacement.

Several aspects of the environmental impact of the VEPCO proposal are of sufficient magnitude to independently trigger 3/

NEPA's EIS requirement.-

When the action is examined in its

1.

See EIA at 10.

2.

See Repair Program at 5~3-3 to 5.3-4.

3.

With respect to primary impacts,~ Natural Resources Defense Council, Inc. v. Energy Research and Development Administration, 451 F. Supp. 1245, 8 ELR 20415 (D.D.C. 1978) (modification of nuclear waste storage facility required preparation of EIS as well as pro-grar:una tic EIS)

With respect to secondary impacts, see Southwest Neighborhood Asser..bly v. Eckerd, 445 F. Supp. *1195, 8 ELR 20466 (D.D.C. 1978) (federal leasing, as distinguished from construction or purchase, of office building for five years, ruled major federal action significantly affecting the environment).

entirety, that conclusion is even more imperative~

The staff's obligation to.prepare an EIS for this action is deI!lonstrated conclusively by reference to the regula-tions of the Comcission1/ and the Council ort Environmental Quality (CEQ).~/

10 CFR §51.5(b) lists several types of actions by the NRC for which an EIS, while* not required under all circumstances, is clearly suggested.

ADong these are the " [ i] ssuance of an amendment to a... design capacity operating license for a nuclear power reactor... that would authorize a significant change in the types I

3/*

or a signiffcant increase in the amount of effluents":-

from.

any such reactor.

The action at hand fits this description per-fectly.

Not only does the steam genera.tor replacement program entail a large increase in the laundry waste discharges from the site over a period estimated at one year, but the installation of a new demineralizing system will result in chemical-laden liquid effluents in the approximate amount of 25,000 gallons per day.

Under 10 CFR 51.S(b) (7) the preparation of an EIS is similarly suggested for "[l]icense amendments or orders authorizing the II dismantling or decommissioning of nuclear power reactors.

Elsewhere in this petition it will be shown that the Surry repair program constitutes* a* partial dismantling and decommissioning of a reactor within the meaning of the Commission's regulat:ions. 10 CFR

51. 5 (b) (7) shows that it is this type of action with respect to which the ~reparation of an EIS must be considered thoroughly, The regulations and guidelines of the Council on Environmental 1.

10 CFR pt. 51 ( 19 7 8 ) *

2.

40 CFR pt. 1500 et ~-

(1979).

3.

10 CFR § 51. 5 ( b) ( 2)

( 19 7 8)

1/

-' Quality also support the. need for an EIS under these circumstances.-

When assessing the significance of the environmental impacts of the _Surry proj*ect for purposes of the threshold determination, the staff suffered from tunnel vision. Though it was well aware that the Surry renovation is merely the first in a long line of similar actions for which Commission approval has been or will be sought, the staff showed no recognition of this fact.

Appar-ently, the staff intended to play down the significance of the current project_ and then to observe subsequently the results of the action* in terms of personnel radiation exposure, other envi-ronmental effects, and the relative merits of the alternative

- 2/

repair method selected by the licensee.-

NEPA was enacted in large part to bring an end to this sort of ad hoc, post hoc, trial and error decision making. The Act requires every agency to be cognizant of the point at which it embarks on a series of related actions, and to view them not 3/

in isolation but in terms of their prospective, cumulative impacts.-

"'Cumulative impact' is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions *.*

Put differently, actions which might be deemed environmentally II ~/

insignificant must nevertheless be dealt with in an EIS if related to a group of past or future actions with respect to which "it is reasonabl*e to anticipate a cumulatively significant impact on

1.

See 40 CFR §§1500.6 (b), 1500.6 (d) (1) (1978) (guidelines); 40 CFR

§§1504.4(b) (2), 1508.7, 1508.14, 1508.27(b) (6) (1978) (regulations).

2.

See NRC Program for the Resolution of Generic Issues Related to Nuclear Power Plants, NUREG-0410 (1978) (plan for resolving "unresolved safety issue" of steam generator degradation).

3.

Jones v. Lynn, 477 F.2d 855, 890-91, 3 ELR 20358, 20360 (1st Cir. 197

4.

40 CFR §§1508.7 (197~) (emphasis added).

See also p. 15 of the EIA:

"The non-radiological impacts of the repair project on the environment are small compared

. to those of building and operating the reactor."

2.

See, e.~., p. 13 at which the staff compared the solid waste generated by the project with that generated at Surry in 1976 and 1977. Note that while the EIA compares the radio-active content of the waste from each source, concluding that the replacement project generates only 10 percent of the average annual amount, the SER compares the volume of wastes, and co~cludes that the "wastes expected to be gen-erated during the steam generator repair effort for~

unit will.amount to about three times a year's worth of solid waste for both units."

SER at 23 (emphasis added). As dis-cussed above, this comparison is also rendered invalid by the absence of any attempt to integrate into the analysis the 1300 tons and 16,000 curies of waste represented by the discarded stean generators.

3.

EIA at 8.

e

Indeed, when contrasted to the "dirty" operational condi-tions at Surry for a number of years, the replacement program appears quite benign: so much so that the EIA refers repeatedly to the exposure levels as "dose savings of hundreds of man-rems 1/

per year."-

On this basis the effects of the project were 2/

found not significant.-

Reasoning of this ilk stands rationality on its head.

To perform such highly transparent statistical sleight-of-hand in lieu of a good faith attempt to come to grips with the grave effects of this action on human health and the environment is not only morally reprehensible, but is arbitrary and capricious 3/

within the meaning of the Administrative Procedure Act and 4/

violative of the spirit and letter of NEPA.-

The means by

1.

EIA at 8 (emphasis_ supplied).

2.

This conclusion was also supported by reference to a five-year old study which attempted to estimate the number of worker fatalities from such exposures. EIA at 9.

3.

5 U.S.C. §706(2) (A).

4.

It is perhaps unfortunate that the drafters of NEPA de-clined to establish a benchmark against which proposed actions could conveniently be gauged to determine their environmental significance. It seems highly unlikely, however, that if they had chosen to do so they would have chosen a nuclear power plant, especially a :::ac.ly degenerated plant which is in need of a major overhaul.

See also First Nat'l Bank v. Richardson, 484 F.2d 1369, 3 ELR 20771, 20773 (7th Cir. 1973) (agencies

~ust assess significa~ce in light of both relative impact of project on existi~g area, and the absolute, quantitative effects of the actio~ when viewed in isolation).

24 which the Staff reached its negative determination are reminiscent of the "crabbed" _approach to the Act for which the Atomic 1/

Energy Corn.~ission was chastized earlier in this decade.-

It is imperative that the Commission act to reverse and remedy this particular decision, and take steps to ensure that NEPA's requirements are more fully satisfied in the future.

B. The Cumulative Effects of the NRC Program of Approving Steam Generator Replac.ement Projects Requires Preparation of a Programmatic Environmental Impact Statement*

As discussed above, the cumulative environmental *effects of steam generator replacement generally, require that an envir-onmental impact statement be prepared for that particular action.

But the long-.range policy i:r:nplic-ations of VEPCO' s proposal bear on more than the question of whether an impact statement was required for the Surry project.

Actions with such effects must be analyzed not only within "site-specific" impact statements, but also within programmatic statements.~/

The purpose of such statements is to "allow a comprehensive consideration, a broader look at alternatives and long-range effects, an analysis 3/

of the forest, not the trees." -

Programmatic statements are

1.

Calvert Clif~s Coordinating Comm., Inc. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

2.

People of Enewetak

v. Laird, 353 F.Supp. 811, 821, 3 ELR 20190, 29194 (D. Hawaii 1973); Natural Resources Defense Council, Inc. v~ Grant, 341 F.Supp. 356, 367, 2 ELR 20185, 20188 (_~.D.N.C. 1972).

3.

W. Rodgers, Environmental Law §§7.9(a).at 786 (1977).

'I called for not only for actions with cululatively significant environmental effects, but also when the a~tion in question, when viewed with similar actions that can be reasonably foreseen to arise in the future, are sufficiently alike to provide a basis 1/

for unified analysis *. -

As examples of actions which may require programmatic analysis, CEQ has identified "maintenance or waste handling activities~" ~/

The Commission's recognition of its duty to prepare pro-grammatic EIS's for related, albeit arguably independent, licensing decisions, is implicit in the now* pending generic EIS regarding the handling and storage of spent fuel from light water reactors.

The NRC has responded to the same obli-gation with regard to the use of mixed oxide fuels.

The Staff's failure to prepare a generic impact statement for the recently commenced steam generator replacement program, like its failure to prepare a site-specific statement with respect to the Surry action, flies-in the face of its well-established duties under NEPA.

1.

See* 40 CFR §1508.25(a) (3) (1979).

2.

40 CFR §1500.6(d) (1978).

See also Council on Environmental Quality, Memorandum to Federa"i Agencies on Procedures for Improving Environmental Impact Statements (May.16-; 1972) reprinted in 3 BNA Env. Rep. 82, 87.

C.

The Environmental Impact Appraisal Prepared for the Surry Project Is Legally Inadecruate Though court decisions defining the:standards of adequacy for EIA's are relatively few, the standards which have evolved have been consistently applied.

The agency must identify all areas of potential environmental concern flowing from the proposed action, and must take a "hard look" at all potential impacts so identified, including secondary impacts.

Sufficient investigation must l::)e done and sufficient data gathered to allow the agency to consider realistically and in an informed manner the full range qf potential effects of the proposed action **** [i]t must affirmatively appear from the *.* written assessment *** that the agency has given thoughtful and reasoned consideration to all of the potential effects of the proposed action.... 1/

Another line of cases articulates the same standards in a slightly different way:

The court should be convinced:

1. That the agency took a "hard look" at the situation; [and]

2. That the agency identified all the relevant en-vironmental concerns *.** 1/

In addition, the EIA must describe the impacts of the proposal in terms of its absolute, quantitative effects, as opposed to 3/

the impacts relative to existing conditions at the site.-

1~

McDowell v. Schlesi~ger, 404 F. Supp. 221, 6 ELR 20224, 20238 rw.~. ~o. 1975) (e~=~asis suoolied).

See also First Nat'l Bank of C:iicasto v. Richardson, 484.F.2d 136g;-3 ELR 20771 (7th Cir.

1973); Hanly v. Kleindienst, 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972).

2.

Hiatt Grain & Feed v. Bergland, 446 F. Supp. 457, 11 ERC 1961, 1984 (D. Kan. 1978).

Accord, e.g., Maryland-National Capital Park & Planning Comm'n v. U.S. Postal Serv., 159 U.S.

7--..pp. D.C. 1.38, 487 F.2d 1029, 1039-40, 3 ELR 20702 (1973).

3.

McDowell v. Schlesin~er, supra (citina Hanly and First Nat'l 3a::1k, supra).

. The EIA prepared for the Surry replacement program falls short of all thes.e. requirements in several respects.

First, it makes no mention whatsoever of the following separate aspects of the project's adverse enviror.rnental effects:

--No attempt was made to examine the environmental impacts of the 25,000 gallon per day discharges from the new demineralizer systems.

Although the environmental significance of these discharges is manifest, nowhere in the documents prepared by the staff is there any evidence that an attempt was made to ascertain the gravity of the resultant impacts on the environment.

of the James River.

Nor is there any indication that a National Pollutant Discharge Elimination System (NPDES) permit was sought or obtained.for the project. In fact, the EIA contains no mention whatsoever of this $27 million component of the replacement program.

--No discussion of the economic impacts of th~ action on the

. region or the ratepayers was offered....

--The EIA does not disclose that steam generator degradation has been experienced elsewhere, that another application for a similar license amendment was then pending before the agency, or that in fact this type of action is one which without question will be a recurring one.

The document does not intimate the existence of, much less describe the similarities of, t:i.ese other*.actions or their cumulative environmental impacts (such as the construction of anywhere from 3 to 20 long-term waste repositories).

--No information is provided concer~ing where.the $66 million in alternate electricity will come from, the fuel that will be used to generate it, or the environmental implications

e for the locales in which it is to be generated.

~-The non-radiological impacts are dismissed in only four 1/

sentences.

--The summary discussion of alternatives considers only the economic aspects of the choices.

No comparison between the health and environmental effects of the alternatives is presented.

The EIA therefore paints only a latticework picture of the project.

_The If advantages" of the action are highlighted while

many of the costs are hidden, with the result that outsiders cannot meaningfully evaluate the meri_ts of the action.* The EIA provides no record on the basis of which a reviewing court could assess the significance of the project's impacts under NEPA.

Even if an EIS were not required for the Surry re-placement program, it was incumbent upon the staff, under the authorities cited above, to thoroughly articulate the bases for its negative determination.

Its failure to do significantly more ~han certify the reasonableness of the licensee's obscure quantitative calculations renders the EIA legally inadequate.

1.

EIA at 15.

o.

The Staff Approved the Surry Steam Generator Replacement Project Without the Full Consideration of Alternatives Required by NEPA.

Section 102(2) (C) (iii) of NEPA makes a full analysis of alternatives an essential component of every environmental impact statement. Yet even where an EIS is not required for a given action, a separate provision of the Act requires all agencies, "to the fullest extent possible, 11 to:

study, develop, and describe appropriate alter-natives to recommended courses of action in any proposal which involves unresolved conflicts con-cerning alternative uses of available resources. 1/

A noted authority has verified the importance of this provision:

[Section 102(2) (E) 's] stringency deserves emphasis.

It is, first of all, not limited to "major federal actions" as is section 102(2) (C). It is "supplemental to and more extensive in its commands" than is section 102 (2) *(c) "{:i,.ii),

particularly insofar as it re-quires not only the study and description of appropriate alternatives but also that they be "developed."

This directive imports not mere lipservice to and discussion of alternatives; it presumes a degree of serious consideration ****

The important contribution of section 102(2) (E)

_is that it requires alternatives to be considered in depth **.* The requirement that agencies "develop 11 alternatives.means they must elaborate upon them, carry them beyond the stage of a mere idea, and present them as mature proposals. The l'study" re-quired by section 102(2) (E) goes beyond mere con-sideration to include feasibility studies, a cost-benefit analysis if appropriate, perhaps modelling, development of management plans, and other research endeavors.+/-,./

The thrust of the foregoing is that the "significance" of a federal ~otion do~s not alter the agency's duty to scrutinize

1.

NEPA, §102 (2) (E), 42 U.S.C. §4332 (2) {E)

(1978).

2.

w. Rodg.ers-, Environmental Law §713 at 724, §719 at 797 (1977)

(foot~otes omitted).

-30..;

e 1/

alte~natives to it.-

One alternat~ve to the replacement of the Surry steam generators is to repair them through a process known as "retubing."

Briefly, retubing involves removing and replacing some or all of the damaged steam tubes.

Unlike the replacement technique, it does not require modification of the reactor containment structure and d.oes not produce large quantities of radioactive waste requiring construction of a special storage facility.

In its brief look at the retubing option within the*EIA, the Staff cited VEPCO's estimate that retubing would be more expensive than replacement "in terms of both dollars and 2/

occupational exposure."-

No other aspects of the two techniques, such as the amount of radioactive waste which would result from each, were compared. Moreover, not only were the licensee's "estimates" unsupported and apparently speculative, they were 3/

significantly misrepresented by the Staff.-

This cursory, if not guileful recounting of facially suspect information can hardly be deemed compliance with the obligation to "study, develop, and describe" alternative courses of action.

1.

But cf. Trinity Episcopal School Corp. v. Harris, 445 F.

Supp. 204~ 8 ELR 20394 (S.D.N.Y. 1978) (the degree of scrutiny re-quired depends on the significance of the environmental impacts).

2.

EIA *at 18.

3.

VEPCO'*s entire discussion of this matter was as follows:

It has been estimated that this operation be [sic] at least as costly as the total replacement of steam generators.

It will also result in at least as much personnel exposure as the. total replacement of steam generators [sic] lower assemblies.

Repair Program at 5.5.1.2 (emphasis added).

e *

.The EIA next goes on to relate the results of recent research by the Westinghouse Corporation showing that retubing may indeed be a preferable means of solving the problem of steam generator 1/

degradation.-

Yet, the Staff's view was that "at thi~_.time, not enough information is available for us to make a detailed 2/

assessment of the retubing alternative."._

The Staff's misapprehension of its statutory*duty is illuminated in the following paragraph, where it is stated that "a detailed proposal" concerning the retubing tecnnique will be available in the near future. If that proposal were to be favorably assessed, it is stated, the retubing option would then be elevated to the level of an alternative to replacement. "However, in the time frame contemplated for the proposed licensing action, this is not to be considered an 1 *.. Petitioners are not certain of the identity of the West-inghouse studies in question. We are aware, however, of one investigation, which was based on a full-scale mock-up demon-stration, concluding that retubing involves very low personnel exposures and can be completed in less than 10 weeks, ther~by greatly reducing the cost of replacement ~ower. Estes, WatJen, &

Gulaskey, "Retubing for On-Site Modification of Steam Generators,"

Nuclear Engineering International, Feb. 1979, at 48.

The viability of the retubing technique was poir.ted up at a meeting of the Advisory Committee on Reactor Safeguards (ACRS) s*ubcommittee on the_ Surry Power Station on October 28, 1978.

There the Staff identified retubing as "the principal alternative."

ACRS Transcript at 18. See also id. at 19, 24.

Of course, at* this juncture, the relative merits of the two techniqu.e.s a-re irrelevant beyond the establishment of retubing as a "reasonable" alternative which must be examined meaningfully to assess its rnetits.

2.

EIA at 18.

e 1/

available alternative."-

In other words, because the Staff (or the licensee, or both) was in a hurry, an alternative course of action which promised to be far preferable to the main pro-posal in terms of human health as well as financial impact upon the public was denied serious consideration.

While petitioners concede that NEPA's mandate for deliberate analysis must 2/

yield in the face of a true and proven emergency,*

they deny.

that agencies or their constituents may casually constrict an action '*s "contemplated time frame" and thereby jettison an environmentally and economically preferable alternative.

The summary relegation of the retubing technique to the status of a non-alternative contravenes the plain requirements of §§102 (2) (C) (iii) and 102 (2) (E) of the Act.

The dubious dismissal of the retubing options suggests another obvious alternative which was never as much as hinted at in the ~IA:

delay of the-Surry project for the few weeks or months needed to evaluate the relative advantages of the retubing alternative.

If, after moderate independent study by the Staff, the retubing technique was shown to be* less successful than had been expected, the project could quickly proceed as planned.

Given that the Staff was to be presented with a detailed study of the technique in the "very near future,"

1.

EIJ.. a.'t 18.

2.

American Smelting & Refining Co. v. FPC, 494 F.2d 925, 948-50, 4 ELR 20348 (D.C. Cir.), cert. denied, 95 S. Ct. 148 (1974); Atlanta Gas Light v. FPC, 476 F.2d 142, 150, 4 ELR 20323 (5th Cir. 1973); Gulf Oil v. Simon, 502 F.2d 1154, 1156-57, 5 ELR 20021 (Temp. Erner. Ct. App. 1974).

e the key question was whether expeditious action was so urgent that no time could be taken to look at this "promising" alternative. The available evidence shows*that there was no reason for haste.

Although the EIA states that the problems with the Surry steam generators wi11 "soon" lead to "serious and expensive 1/.

operating restrictions such as derating,"-

this terse state-ment is contradicted by the considered presentation by VEPCO and the Staff *to the Advisory Committee on Reactor Safeguards (ACRS).

At a meeting of the ACRS subcommittee on the Surry station, VEPCO informed the ACRS that the plant could continue operating in the current manner perhaps indefinitely, i.e., that 2/-

there was no need for imminent operating restrictions.-

This view is corroborated by the* facts.

Steam generator degradation at Surry is a fact of life with which VEPCO has coped nice1y for at least three and 4 half years. It has required the plugging of approximately 20 percent of the steam tubes, but

1.

EIA at 1.

2.

The two units at Surry have operated qui~e well since the denting was first discovered, and we thought it was going. to be a much worse*problem, largely because of the solutions worked out with NRC on inspection and preventative plugging. The units produce about 20 percent of our energy requirements, and the units are operating very well between inspection periods.

so we could continue alonq that route for some time, but_ we think it prudent now to replace the steam generators.

ACRS Transcript at 40-41 (Statement of VEPCO Vice President Stallings) (emphasis added).

e

the NRC has given perzr,~ssion for plugging of up to 25 percent, and a request by VEPCO for authority to plug up to 28 percent is 1/.

now pending.-

It therefore appears that VEPCO can operate the plant at full capacity, and within acceptable safety margins, probably for years and certainly for the period of time required by the Staff to evaluate the retubing option.

Nevertheless, the possibility of a short-term delay in issuing the requested amendments was never raised in the documents pre-pared by the Staff, much less seriously weighed and then rejected.

Ironically, this option was suggested to the Staff by a member of the ACRS several months before the EIA was issued. The r.~sponse was curt and evidently final: "We would not delay this decision sub-stantially just to obtain a great deal. more [info~ation] on 2/

alternatives."

This statement exemplifies the Staff's ignorance and disregard of the inflexible m,andate imposed by NEPA.

Another violation of the Staff's duty to consider alternatives is admittedly somewhat puzzling to petitioners. In Table 5.2 of the EIA the Staff set forth the relative economic costs of three alternative means of disposing of the discarded steam generator carcasses. The Staff determined that on-site dispo*sal (in the "engineered storage. facility") was the preferable alternative, in

1.

44 Fed. Reg. 4057 (Jan. 19, 1979). There has been no indication that either level will require derating.

2.

ACRS Transcript at 20 (remarks of Mr. Grimes).

e part because of its slightly lower price *tag of $1 million.

Yet, VEPCO stated flatly and repeatedly that the cost of this 1/

disposal *method would be not one but $10 million.-

Finding no plausible explanation for this mistake, petitioners can only*.

ncte that had the correct $10 million figure been used, it would have made the "on-site disposal" alternative six times more 2/

expensive than the next expensive alternative.-

While the alternatives to a proposed action which must be 3/

considered under NEPA are not unlimited in scope,-* they 4/

include those which take time to implement-or require a 5/

delay in the original proposal. -

In the present matter,*

1.

Repair Program at 5.2, 5.6.2.

2.

Another factor which may have influenced the ~election of the disposal alternative was the difficulty in meeting Department of Transportation regulations. See Repair Program at 5.5.2.2.

3.

Natural Resources Defense Council v. Morton, 148 U.S. App.

D. C. 5, 4 5 8 F. 2d 8 2 7, 2 ELR 2 0 0 2 9 ( 19 7 2) *

4.

W. Rodgers, Environmental Law §719 at 793 n.61 and accompanying text (1977).

s.

Despite the sense of urgency which commonly accompanies energy development projects, the courts have enjoined the con-struction of a power plant for failure of the sponsoring agency to consider the alternative of delay pending further environ-mental study, National Wildlife Fed'n v. Andrus, 404 F. Supp.

1245,7 ELR 20426, 20530 (D.D.C. 1972), and have stopped an i~pending sale of leases for oil production rights on the outer continental shelf, in part for failure to address the alter-natives of waiting for Congress to enact environmentally pro-tective legislation.

!-!assachusetts v. Andrus,

F. Supp.

, 8 ELR.. 202.87 (D. !*lass.), affirmed, F. 2d--

, 8 ELR 20192 (1st Cir. 1978), injunction vacatedfor mootness, F.2d

, 9 ELR 20162

c1st Cir. 1979). See also 40 C.F.R. §1500.8 (a) (4)

(1978).

e

the Staff failed to consider the retubing alternative seriously and failed to consider short-term deferral of the action al-together, in both cases because of limitations of the "con-1/

templated time frame."-

The likely consequences will be the possibly needless exposure of hundreds of individuals to substantial doses of radiation, the unnecessary creation of thousands of tons of radioactive waste, and the other avoidable adverse environmental impacts of the replacemen.t project. In the interest of forestalling these consequences as well as setting right the review processes of the Staff, the Commission must act to require that this..licensing decision be voided and reassessed in compliance with NEPA.

l.

Significantly, this time frame was that contemplated and desired by the licensee, not the Staff. See ACRS Subcommittee transcript at 18 (re..~arks of Mr. Grimes)-.~

-VI.

The Staff Violated the Federal Water Pollution Control Act in Issuing Amendment Nos. 46 and 47 to VEPCO's Operating Licenses for the Surry Station.

1/

As described in the licensee's Repair Program, a key aspect of the ste~~ generator replacement project is the construction of two "full-flow condensate polisher demineralizer systems."

The

. function of these systems, to the extent that it can be deduced from the brief description provided by the licensee, is to remove waste products, including dissolved chemicals and suspended solids, from the secondary cooling system. Although the licensee's analyses of this liauid and solid waste show that it will contain 2/

significant concentrations of pollutants,-

treatment will be 3/

provided only at the discretion of the licensee.-

The Federal Water Pollution Control Act (hereafter. FWPCA) prohibits "the discharge of-any pollutant by any person" except 4/

under the terms of a valid permit.-

Petitioners assert, on informa-tion and belief, that the licensee has failed to obtain a National Pollutant Discharge Elimination System (hereafter NPDES) permit, or

1.

Repair Program at 5.3.2.3.2, 5.3.3.3.

2.

The estimates presented in the Repair Program show that the waste generated by these systems each day will contain approximately 2540 ppm of Na2so4 and 1800 ppm of (NH4) 2so4 *

3.

Repair Program at 5.3.2.3.2.

4.

33 U.S.C. §13ll(a) (1978).

e

an amendment to its existing NPDES permit for the Surry Station au~horizing discharges from the demineralizer systems now under 1/

construction.-

However, petitioners acknowledge that the appro-

. priate forum in* which to seek redress for this apparent statutory violation is the courts and not the Commission.

2/

Of more direct relevance here is §401 of the FWPCA,-

which provides that:

[a]ny applicant for a federal license or permit to conduct any activity, including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates.

*.* No license or permit shall be granted until the certification required by this subsection has been obtained. *.

The prohibition erected by this provision is unambiguous:

theJ:e shall.~e no f~deral approval of any private activity which results in the release of any water pollutants unless the appropriate state has been duly notified and given an opportunity to hold hearings or conduct other proceedings incident to the issuance or denial of certification.

Section 401 imposes a kind of reverse preemption

~/

!/

on" and state veto power over federally-approved actions

1.

Telephone conversation between James B. Dougherty and Vincent Carpano, Virginia State Water Control Board, April 13, 1979.

2.

33 u.s.c. §1341 (1978).

3.

F. Grad, Treatise on E~virorunental Law, §3.03[5] at 3-137 (1978).

See also DeRham v. Diamond, 343 N.Y.S.2d 84, 3 ELR 20237 (N.Y. Ct.

App. 1973).

4.

w. Rodgers, Environmental Law *§4.2 at 367 (1977); R. Zener, "The Federal Law of Water Pollution Control," in Environmental Law Institute, Federal Environmental Law at 734 (Dolgin & Guilbert, eds.)

(1974).

e which result in dischar<;1es of water pollutants. I.t applies with full force to permitting activities of the Nuclear Regulatory 1/

Commission.-

Petitioners assert, on information and belief, that the.

licensee has violated this provision in that it has neither requested nor obtained certification from the State of Virginia that effluent discharges from the new demineralizer systems will not. exceed* applicable state limitations.

While this may be another instance in which technically there is no right of redress within the Commission, the licensee's violation of the law points up*

a clear violation of §401 by the NRC itself.

Amendment Nos. 46

.and 47 to the Surry operating license explicitly grant permission to perform the entire steam.generator replacement program as described by the licensee, including the construction and operation of the demineralizer systems.

Yet, under §401 a substantive environmental determination by the state stood as a congressionally-mandated precondition to final federal action on the requested operating license amendments.

Thus, the Staff was legally powerless to grant the license amendments until the state's certification was in hand.

The lack of state certification for the projec~ renders the amendments legally void.

l.

See Cal*.,rert Cliffs Coordi::ating Cammi ttee v. Atomic Energy CC:r,.::\\ission*,* 449 F.2d 1109, 1 ELR *20346, 20354-55 (D.C. Cir. 1971);

~odqers, Environmental Law §4.2 at 367 (1977); Zener, supra, at 734.

VII. The Issuance of the Operating License.Amendments Was

Arbitrary and Capricious and Violated the Atomic Energy Act and the Administrative Procedure Act.

A.

The Statutory Standards The NRC operates under a singularly potent congressional directive to ensure that its activities are protective of the 1/

public health and safety~-

The Commission has recognized the 2/

3/

strength of this commitment through decision-and regulation.-

The recent decision to suspend the operating licenses of five reactors because of a possible threat to the. public health and safety confirms that onerous financial burdens must be sustained 4/

if necessary to investigate possible health and safety risks.-

This mandate places severe constraints upon any attempt to "balance" adverse health effects against economic or other benefits of the agency's actions. The Commission does not enjoy wide discretion, when considering proposals such as the Surry steam generator

replacement project, to reject or fail to investigate alternative courses of action. which may hold promise for significant reductions in human exposure to radiation.

The Administrative Procedure Act sets substantive standards governing the quality of administrative decisions. It authorizes the

1.

42 u~s.c. §§2012(d) and (e) (1978).

See Crowther v. Seaborg,

. 312 F. Supp. 1205, 1216-17 (D. Colo. 1970~

2.

Power Reactor Development Co.., l AEC 128, 136 (1959) ("safety is first, last, and a permanent consideration").

3.

See~ e.g., 20 CFR §20.l (radiation exposures and releases of radioactive effluents must be kept as low as is reasonably achievable).

4.

See also Union of Concerned Scientists Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400 (1978).

federal courts to set aside decisions found to be: "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

.!I with law" or "in excess of statutory jurisdiction, authority, 2/

or limitations, or short of statutory right"-

or "without 3/

observance of procedure required by law."

The courts have served notice that they will take a searchin~ and "hard look"

!/

at the reasoning and asserted bases of agency decisions.

Licensing agencies may not sit back and listen passively to representa--

tions of the applicant; where the information in an application is lacking or fails to fully analyze a reasonable alternative, the agency must act affirmatively to flesh out deficiencies in the information, including additional research within its competence if necessary, in order to improve its decision as well as to provide a record against which to better assess the soundness of 5/

that decision.-

Failure to collect the necessary facts 6/

constitutes an abuse of discretion.-

1.

5 U.S.C. §706 (2) (A}

(1978).

2.

5 U.S.C. §706 (2) (C) * (1978}.

3.

5 U. S.C. §706 (2) (D)

(1978}.

4.

Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307, 1 ELR 20053 (6th Cir. 1970).

5.

Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, _l ELR 20292 (1965).

6.

Xytex Corp. v. -Schliemann, 382 F. Supp. 50 (D. Colo. 1974).

e

B~

The Decision to Approve the Surry Project and the.

Choice of the Replacement Alternative over the

Retubing Alternative Were Based on Invalid Analyses of Occupational Radiation Exposures A key element of the Staff's justification for its decision to approve the steam generator *replacement project, as well as the decision to reject the retubing alternative, was its reliance on the licensee's prediction that the total occupational exposure resulting from the action would be 4140 man-rems.

It will be shown below that this estimate is extremely unconservative and fallacious.

Moreover, it is far, far below the estimate which was provided the Staff by Battelle Labs.

The Battelle study, which examined steam generator replace-ment "generically" by examining the facilities at Surry and three other plants, concluded that the dose exposures would fall within 1/

the range of 6600 to 11,600 man-rems. -

In the EIA and the S.ER, the Staff explicitly but without explanation stated that both.

2/

of these figures represented upper-bound estimates.-

The dis-parity_ between the VEPCO figure and the Battelle lower figure was th~n discounted because of plans to use "extra" dose-saving

l.

Battelle at iii, 21.

2.

EIA at 6, SER at 10.

r

_techniques at Surry ** The figures of the expels. at Battelle were thus rejected.

However, the Battelle study, to the extent that such extra techniques were in reality to_be implemented at Surry, was premised 2/

on the adoption of such techniques and fully weighed their benefits.-

There are no remaining grounds on which to rationalize the difference

. 3/

between the two sets of figures.-

The Staff's endorsement of the VEPCO numbers was therefore arbitrary, unsupportable, and clearly erroneous.

The Battelle exposure estimates of 6600 to 1160 man-rems, when compared to the VEPCO estimate of 414 O man-rems, represe_nts an

1.

Such techniques are described as (1) temporary shielding* (EIA at 6, SER at 10); (2) local decontamination (EIA at 6, SER at 10); (3) raising steam-generator water level (SER at 10); and (4) remote tooling (EIA at 6, SER at 10).

Significantly, these techniques offer only marginal protection

beyond that provided by the construction of local control structures and ventilation systems, the use of protective clothing, sound planning, and common sense.

2.

(1) Temporary shielding was clearly factored into Battelle's estimates (Battelle at 3).

(2) Local decontamination, while not considered by Battelle, will apparently not be.used at Surry (Repair Program at 5.5.2.1).

This decision wasevidently known to and approved of by the Staff (SER at 17).

(3) Increased steam generator water level was not factored into Battl?lle' s upper-bound e_stimate, but ~

factored into the lower-bound estimate (Eattelle at 27)..

(4) Renote tooling was similarly required to achieve Battelle's lower-bound estimate (Battelle at 27).

3.

There is little, if any nerit to the Staff's claim that VEPCO's lo;..1er estir:1ates _are attributable in part to the "use of lower dose rates measured at Surry." EIA at 7.

Battelle, after making direct radiation.:r:1easurements at Surry, noted the uniformity of the ob-served dose*rates.* Battelle at 4.

The study also noted the differ-ences between its total man-rem estimates and VEPCO's (discussed below)., yet stood by its figures. Battelle at 28.

increase by a factor of 1.6 to 2.8.

On the surface this comparison may tend to support the Staff's decision to find the lower figure reasonable and rely on it.

At any rate, on the basis of this superficial comparison, the Staff's decision might survive scrutiny under the judicially-constructed "arbitrary and capricious" test.

A closer examination, however, shows the two sets of figures to be based on markedly disparate sub-estimates, and eliminates any rational basis on which to adopt the licensee's figures.

The Battelle and VEPCO radiation exposure estimates are aggre-gate figures composed of estimates of the doses involved in each of the roughly 50 sub-activities which comprise a steam generator 1/

replacement project.-

Not surprisingly, the Battelle and VEPCO exposure estimates for each sub-activity vary, due to differences

. 2/

in man-hour and radiation level estimates.-

In the case of most of the sub-activities, VEPCO anticipates the need for a greater number of man-hours of effort, but due to lower estimated radiation

1.

The Repair Program identifies 59 such sub-activities, each of which involves different amounts of labor and radiation ex-posure.

As an example, if sub-activity A must be conducted in an area in which the radiation level has been measured at one man-rem per hour, and requires one man-hour to accomplish, the contribution of that sub-activity to the overall project exposure would be one man-rem. If sub-activity B can be conducted in an area in which the radiation level is only one millirem per hour, but requires 1,000 man-hours to accomplish, the contribution to the aggregate exposure estimate would also be one man-rem.

2.

The respective step-by-step estimates are found in Battelle at 22-26 and Repair Program at Table 5.3-1.

Comparison of these estimates is made difficult by fact that VEPCO's tabulations are exoressed in terms of man-rems ner unit, while Battelle refers to.man-rems per aenerator, of which there are three in a unit.

e levels, the total exposµre rate for the sub-activity falls within the general range of the Battelle estimate. In four notable cases, however, the respective estimates are so wildly divergen~

that the conclusion that one of the figures is wrong is inescapable.

In each case the VEPCO estimate is the smaller. The difference in estimated exposure attributable solely to these four sub-activities is 8,712 man-rems.

This is more than double the licensee's estimate for the entire project, and is equivalent to the occupa-tional dosage that would be.sustained at a normally operating reactor over half of its useful life.

The four sub-activities and the respective estimates of.

1/

radiation levels and total exposures are shown below.-

It is evident that the discrepancies in estimated e~posure are due to VEPCO's lower estimates of radiation levels: for the fourth sub-activity (installation of reactor coolant piping) VEPCO's estimate is only four percent of Battelle's.

Surely neither the licensee nor the NRC Staff can justify this difference on the basis of marginal dose reduction techniques such as extra

1.

SUB-ACTIVITY Cut and remc... *e reactor COOla."1.t OiPina ESTIMATED RADIATION LEVEL (man-rems/hr.)

Battelle VEl?CO o.s 0.05 I TOTAL OCCUPATIONAL EXPOSURE (man-rems Battelle VEPCO 1140 298 Cut stea.~

2.0 no 1140 no c;ene:-a-.:or wraoper estimate

estimate, Disassemble steam 0.2 O. 02 432 32. *1

~c:.,;:e;!!n;e.:..r.:::.at::,:O::.;:r:......::s::.::u:.:P:..:P;:O.=.r.::t=.s _______ i--_----i-----+---+-----+----,

135 Install reactor coolant oiPino 0.25 0.01 The :aattelle study states that this figure can be reduced by up to one-half th.rough the use of re=te velciing tecbniquea. (p, 27),

VEPCO bas expressed an inte."lt to do so.

6000

1/

temporary shielding.-

A man-rem is not a jellybean; it represents a sizeable quantum of human health damage which is equivalent in a crude sense to the receipt of 40 medical x-rays.

It is therefore unconscionable and violative of statutory.mandate for the Staff to casually dismiss Battelle's considered warning that the pro-posed action involves unprecedented thousands of man-rems, and to adopt the licensee's disquietingly flimsy estimate as "reasonable."

It was incumbent on the Staff under the Atomic Energy Act and NEPA 2/..

not to accept the licensee's reassurances at face value,.~ but to probe beneath the surface of the licensee's submittals in order to reach an independent judgment. It was arbitrary, capricious, and a clear error of judgment to give more weight to the licensee's data than that of an expert, independent contractor. To the limited extent that decisions affecting the public health and safety fall within the Staff's discretionary authority, it abused that discretion in authorizing the proposed replacement project instead of the retubing alternative, which promised to result in far less radiation injury to the public. The Staff's de-cision was indefensible and should be reversed.

1.

Seep. 43, note 2, above~

2.

The Staff night be on somewhat firmer ground if the dis-parity in estimates were due to lower estimates by VEPCO of the amount of labor needed to accomplish the job. Deference might plausibly be given to the l~censee's considerable experience in attempting to repair nuclear power plants. But the disparity is actually due to different estimated levels of radiation~ In such matters the opinion of Battelle, an acknowledged authority in the field, should be accorded greater deference.

c.*

The Staff's Calculation of the Economic Cost of_the Project Was ~..isleading and Invalid.

1/

The Staff's estimate of the economic cost of the project-purports to concur with and is based directly on the figures submitted by the licensee. According to VEPCO, the total project cost of $142 million is broken down as follows:

$66 million for purchasing and installing the new steam generators,.$66 million for purchasing replacement power during reconstruction, and $10 million for.disposal of the wasted steam generators in the on-site long-term waste disposal facility.

Although the Staff agreed that replacing the steam *generators and purchasing replacement power would each cost $66 million, it.represented that the cost of disposing of the wasted steam*

generators would be only $1 million, not the $10 million estimated by the licensee *. No explanation for this*radical difference in estimates was provided, qespite the fact that $1 million.is on its face too conservative an estimate for construction of this large concrete and steel facility, including the ultimate costs of "sectioning and shipment to a licensed burial facility" some 30 years hence.

Even more puzzling is the Staff's explicit 3/

assertion that the VEPCO estimate was $1 million when in reality the VEPCO estimate was quite plainly $10 million. !/

Thus, the licensee's estimate of the total economic cost of the project was $142 rr~llion, while the Staff's was $133 million.

1.

See EIA at 14.

2~

See Repair Progra~ at 5.2.

3.

EIA at 14.

4.

Repair Program at 5.2, 5.6.2~

Neither of these estimates includes the estimated cost of con-struction of the two new demineralizer systems, which were pro-jected by.the licensee to cost $27 million, or 20 percent of the 1/

total project cost.

These figures are important because they*

formed the basis for the cost-benefit justifications for the project.

The licensee reported that the cost-benefit analysis for the project resulted in a net benefit of $125 million, based on the economic cost of not replacing_ the steam_ generators over the 30 remaining years of expected plant life. Although the Staff found this estimate reasonable, its calculations were clearly based on only a 10 year period of cost savings. How is it that the licensee projected its cost-benefit analysis over a 30 year period, the Staff projected its cost-benefit analysis over a 10 year period, yet both reached the sam~ result? If there is a valid answer to this question, it is hidden in the confusing summary of the Staff's findings. If the licensee can properly utilize a 30 year projection and the Staff can properly utilize a 10 year projection, is there any less basis for using a five year or even a 50 year projection?

There is no way of telling from the relevant documents.

This is the ihird instance in which the Staff evidently juggled dollar estimates to order to obtain support for the desired conclusion.

The brief and vague summary of the economic j~stification for the project within the EIA contains no evidence tending to rebut these strong suggestions of bad faith. The Staff's

1.

Repair Program at 5.3.3.3.

While the licensee's assertion that such costs need not be factored into the cost-benefit analysis is s~bject to serious question, there is no justification for the Staff's failure to reveal within the EIA the full magnitude of the proposed action.

economic calculations are strewn with illogic and obvious mis-information, and tnus tend to cloud rather than illuminate the issues for the public and reviewing courts.:These defects, particularly when viewed together with the Staff's clearly deficient considera-tion of the radiological impacts of the project, constitute arbitrary and capricious behavior under the Administrative Pro-cedure Act.

Under the Atomic Energy Act, the authority to license nuclear facilities carries with it the duty to perform indepe~dent, painstaking,.and highly expert analyses of the lying the proposed issuance of licenses or license amendments.

The paramount objective is the prevention of human exposure to radiation hazards. The amendments to the operating licenses for Surry Units land 2 were issued in flagrant violation of these substantive mandates and limitations, and the Commission must act to assure that they are reconsidered anew.

. -so-VIII. The License Amendments Were Issued Contrary to NRC Regulations A.

The License Amendments Authorize a Material Alteration of the Surry Station; Therefore the Issuance of a Construction Permit Was Required Under NRC Regulations 10 CFR §50.91, governing the issuance of amendments to construction permits and operating licenses, provides that when-ever application is made for an amendment to an ope~ating license, if the application involves a "material" alteration of the licensed facility a construction permit must be *issued prior to the 1/

issuance of the operating license amendment.-

10 CFR §50.54(n) prohibits any alteration constituting a change in a. plant's technical *specifications without obtaining a construction permit.

Petitioners assert that the proposed modification of the Surry plant involves several changes which are both independently and

l.

Petitioners note at the outset that the Surry project const-itutes an "alteration" of the facility. The intent of this provision is that significant plant reconstruction be authorized only through construction permits, not amendments to operating licenses. It follows that the term "alteration" as used in §50.91 is equatable with the term "reconstruction;" i.e~, it is not limited strictly to plant reconstruction activities which result in a plant con-figuration different from that prior to the construction, but in-cludes any material rebuilding. *If, for example, due to unforeseen circumstances it became necessary to reconstruct an entire con-tainment building, a construction permit.would be required even if the new plant were built to the exact specifications of the old.

The function of §50.91 would thus be simply to remove the require-

~ent of a construction permit for reconstruction activities which are "irrunaterial. "

Given this interpretation of §50.91, the question of whether a construction permit must be obtained for the Surry project turns on whether the replacement and redesign of all of a PWR's steam generators, when added to the other planned modifications of the Surry Station, should be deemed "material" reconstruction.

Merely asking the que~tion seems to provide the answer.

cumulatively far more than material for purposes of §50.91.

First, the project includes construction of two new buildings on the site which were not contemplated within the original con~

struction plan.

The "engineered storage facility" for long-term

-waste storage will be built on a separate corner of the site. It will be a massive structure requiring 6000 tons of concrete, will-constitute a new source of-radiological emissions, and will require the-adoption of new operating procedures for radiological monitoring, security, etc.

An entirely new building will also be constructed to house the new demineralizer systems.

No details as *to the characteristics of this building have been made available by tlle licensee or the Staf:£, but it is clear that it will house 1/

an extensive array of tanks and associated piping.

If the cost of newly~added features is any determinant of the materiality of the proposed alteration under §50.91 (and petitioners contend that it should be), then the demineralizer facility is indeed material:

the estimated cost is $27 million.

The systems housed therein will also constitute a new and material source of effluent discharges from the plant.

2/

In addition, the licensee plans to effect "major"-

modifications in the structural design of the steam generators.* These changes are far from cosnetic; they will upgrade the design of the steam 3/

generator to "state-of-the-art" technology.-

The "evolutionary

1.

See Repair Program at 5.3.2.3.2., 5.3.3.3.

2.

SER at 8.

3.

Repair Program Abstract.

1/

features"-

of the new design have been categorized by the licensee into (1) design improvements to prevent and inhibit 2/

. 3/

corrosion,- (2) design refinements to improve performance,-

and 4/

(3) design changes to improve maintenance and reliability.-

The new steam generators will feature longer tubing and will have 5/

46 fewer tubes.-

In addition, at least 2,900 cubic feet of concrete will be removed from walls and "other structuresn within 6/

the containments.-

However, too c~ose an analysis of the details of the +icensee's plans may tend to obscure the materiality of the proposed reconstruction of the Surry Station.

From a more distant perspective the magnitude of the operation emerges. It will cost

1.

Repail:' Program at 2

2.1.

2.

See Repair Program at 2.4.

The eight major changes in this category include the use of different types of metals as well as structural modifications designed to increase the circulation flows within the steam generators.

3.

See Repair Program at 2.5.

Among the changes in this category is the replacement of the three moisture separators now found in the upper assembly of each steam generator with 16 moisture separators.

4.

See Repair Program at 2.6.

These design improvements include the installation of 48 tons of stainless steel insulation.

5.

SER at 46.

6.

SER at 22.

)

$168 million at a minimum.

For more than a year the site will be swarming with hundreds of construction workers on a 24-hour basis. Barges will be making 220-ton deliveries, and huge trans-porters will be toting new and used steam generators around the site. Various permanent and temporary buildings will be under construction, roads will be built, and inside the containment the activity will be even more intense.

Construction activities of this scale and complexity require construction permits, in part simply to assure worker safety 1/

through compliance with NRC standards.-

Secondly, activities of this scale raise important issues such as the structural integrity of the plant components and the environmental impacts of the construction process itself.

Section 50.91 requires that a construction permit be obtained for such activities. One effect of the requirement is to make mandatory the holding of a public hearing at which the licensee has the b~rden of proving that it will satisfy applicable regulatory requirements.

B.

The Steam Generator Replacement Project Provides for Long-Term Disposal of Nuclear Waste Without Receipt of Commission Approval as Required Under NRC Regulations 2

10 CFR §20.301 prohibits disposal of "licensed material" except as authorized in parts 30, 40, or 70 of 10 CFR, or as

1.

See 10 CFR §50_. 40 (a) (1978).

2.

The term "licensed material" is defined in 10 CFR §20.3(a) (8) to include "hyproduct material," which is defined in 10 CFR §20.3(a) (3) to include all material made radioactive incident to the commercial use of nuclear fission to generate electricity. Therefore, the radioactive steam generators from Surry constitute "licensed material."

e

authorized pursuant to 10 CFR §§20.106, 20.302, 20.303, or 20.304.

None of these provisions is applicable to VEPCO's construction of a long-term waste storage facility and the disposal of the six 1/

steam generators.-

Neither the licensee nor the Staff has presented any explanation as to why a license under part 20 was not sought or required.

Even if the Staff were in the future to treat the Repair Program as the basis for an application for a part 20 license, it would be inadequate under §20.302 because.

it fails to provide information concerning meteorological condi-

tions, the local usage of ground and surface water, and other local conditions.

Therefore, any attempt by the licensee to dispose of the discarded steam generators in a fashion not authorized by the terms of its operating license prior to the issuance of amendment Nos. 46 and 47 would constitute a clear violation of the E:otnmission's regulations.

1.

10 CFR pt. 30 is the only portion of NRC's regulations which is even arguably applicable to the disposal of the Surry steam generators, but it appears to apply to the possession and use of byproduct material, and not its disposal.

C~

The Steam Generator Replacement Project Violates NRC Regulations Requiring Occupational Radiation Exposures

-To Be Kept as Low as is Reasonably Achievable.

10 CFR §20.1 requires that licensees maintain occupational.

exposure to radiation "as low as is reasonably achievable" 1/

(ALARA}

As explained within Regulatory _Guide 8. a; the duty to keep exposure ALA.RA does not impose quantitative dosage limi-tations.

Rather, ALA.PA is a philosophy reflecting a duty to prevent all unnecessary human exposure to radiation.

This duty fails on the NRC and its licensees.through the Atomic Energy Act's strict mandate to protect the public health and s~fety.

VEPCO has openly repudiated the concept of ALARA: "[al lot of Regulatory Guide 8.8 is quite frankly not applicable to the 2/

work we* have now... -

The S.taf f' s enforcement of the ALARA requirement is no less heartening: when asked by an ACRs* member whether the Staff was satisfied with VEPCO's commitment to ALARA, Mr. Barrett of the staff replied that although VEPCO's statements regarding the issue were "weasel-worded," the Staff decided not 3/

to "push the issue" because of confidence in the utility.-

. These statements, as corroborated by the Staff's summary dismissal of thg Battelle radiation exposure calculations, reveal a flagrant disregard of statutory obligations which demands swift rebuke and rectification by t~e -Com.~ission.

1.

Rev. 2 (Mar. 1977).

2.

ACRS Transcript at 145 (remarks of VEPCO spokesperson Benton).

3.

Id. at 164.

Of more immediate concern is the actual human impact flowing from the position of the Staff and the licensee..

The workers at Surry are now in the preliminary stages of an operation which, according to Battelle Laboratories, involves radiation exposures that are quite likely unprecedented in the history of the commercial nuclear power program. The licensee has declined to 1/

adopt several program options which would reduce these exposures,-

and has denied any obligation to comply with Regulatory Guide a.a.

The Staff has acquiesced in the judgment of the licensee and has declined to independently analyze the issue within a formal proceeding or through preparation of an* environmental impact statement.

Petitioners contend that 10 CFR §20.1 is a mandatory limitation on which the public; particularly employees at nuclear power plants,.

relies.

The Commission must act promptly to enforce it.

D.

The Steam Generator Replacement Project Constitutes a Partial Dismantling of Units 1 and 2 Without Receipt of Commission Approval as Requ"i"red* Under* Tts Regulations.

10 CFR §50.82 provides in relevant part:

Any licensee may apply to the Commission for authority to surrender a license voluntarily and to dismantle the facility and dispose of its component parts.

Although this provision is ostensibly cast in nonmandatory terms, pe~itioners assert that, on the contrary, it may be properly construed only to impose a mandatory duty upon licensees. Although

1.

The rejection of the retubing alternative is discussed at p. 30 above.

See also, e.g., Repair Program at 5.5.2.1.

the dismantling of a nuclear power station has for obvious reasons not been a*common occurrence, it is indeed a critical event from many standpoints.

The magnitude of the environmental impacts and occupational exposures resulting from such an action necessitate the exercise of the Commission's licensing powers under the Atomic Energy Act.

The reasons are obvious. Dismantling involving construction activities and occupational exposure rates on which virtually no information is currently available. Exper-ience gained in the construction of nuclear facilitie~ is essentially irrelevant to the matter of taking them apar.t.

Dismantling also requires that some thought be_ given, probably for the first time, to the question of what to do with the radio-active scrap which remains *. Such an action would also constitute a change in the facility under 10 CFR §50.54(n), thus requiring NRC review.

Therefore, the dismantling of a plant requires the issuance of an appropriate order under 10 CFR §50.82.

Given that the dismantling of a plant requires NRC approval under §50.82, it follows that the partial dismantling of a plant, such as the Surry action, requires the same treatment The Surry action involves the same unknowns as a full dismantling. For example, it involves the use of more than 100,000 man-hours of 1/

labor within the containment itself.-

This is worlds apart from anyone's experience with typical license amendments.

The Surry action also.required consideration of another issue which is unique to the dismantling problem: what to do with the massive

1.

Battelle at.. 22-26.

quantities of useless and radioactive components? In this instarice*the Staff accepted the licensee's proposal for on-site disposal within a specially constructed long-term storage facility of untested design. But there are certainly many alternative ways of disposing of wasted plant internals, all of which merit thorough, and probably generic review by the NRC.

The Commission has failed to recognize that the time when the dismantling problem must be addressed is not 20 years ahead of us, but is in fact behind us*. The recent accident at Three Mile Island underscores the current:.reality of partial d"ismantling, and highlights the need for §50.82 review of the operating

_procedures and waste disposal techniques involved.

VEPCO's failure to obtain §50.82 approval of the Surry_steam_ generator replacement program violates NRC regulations.

'1; **

IX.

Relief Requested This petition*has documented numerous violations by VEPCO and the NRC staff of duties imposed by statute and regulation.

Substantial injury has already begun to flow from these violations.

The construction workers performing the steam generator replace-ment are now in the early stages of receiving radiation doses which may run as high as 10,000 man-rems.

Surry Unit 2 has been shut-down, thereby requiring the purchase of replacement power which will adversely affect the environment and the economic well-being of VEPCO ratepayers.

The petitioners have been denied their right to obtain the product of a £ull environmental review under NEPA.

The public has been denied its right to full and fair decisionmaking by the NRC, including the sober analysis of the replacement action in its proper light: as the first in a series of material renovations of nuclear reactors.

The Atomic Energy Act and the regulations of the Commission 1/

confer upon it full authority-to issue the relief necessary to remedy these injuries:

(1)

The Commission shall suspend VEPCO's operating license No. DPR-37 and order that the Surry.steam generator replacement project be brought to an im.~ediate halt.* Another day's progress in the action will result in needless human exposure to radiation and irrevocably tilt the cost-benefit balance against alternatives

1.

See, e. g., 4 2 U. S. C * § § 2 2 3 6, 2 2 3 7 ; 10 CFR § 5 5. 4 0 ( b) ( 19 7 8 ).

1/

which may be determined subsequently to be preferable.-

(2)

The Commission shall direct the Director of Nuclear Reactor *~egulation to serve upon VEPCO an order to show cause at a public hearing why operating license no. DPR-37 should not be suspended pending performance of the environmentar::sfudies** and other relief described below.

(3)

The Commission shall direct the NRC staff to prepare an environmental impact statement addressing the Surry project.

(4)

The Commission shall direct the NRC staff to prepare

,., ' \\

a programmatic environmental +/-mpa~t.statement addressing the.cumulative environmental impacts and the long-range policy implications of current and future steam generator replacement and repair projects.

(5)

The Commission shall prohibit the NRC staff from rein-stating operating license no. DPR-37 or permitting further progress on the Surry steam generator replacement program until: it.has fully*

reviewed and satisfied its obligations*.urider*~the::following-:sactions of the regulations, including the making available an opportunity for a public.hearing:

{a) 10 CFR §20.302, requiring NRC approval of proposals to dispose of nuclear waste; (b) 10 CFR §50.82, requiring NRC approval of proposals to dismantle nuclear powerplants; and (c) 10 CFR §20.l(c), requiring occupational radiation exposures to be maintained as long as is reasonably achievable *.

1.

See Coalition for Safe Nuclear Power and Living in a Finer Environment v. Atomic Energy Commission, 463 F.2d 954, 2 ELR 20150 (D.C. Cir. 1972); In the Matter of Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 30 (1978).

1 I *

,, ~

(6)

The Coitliru:-ssion shall prohibit VEPCO from making any modification to the Surry facility resulting in discharges into navigable waters until it has obtained from the State of Virginia an NPDES permit or an amendment to its current NPDES permit for the Surry plant, as required under,~' §§301 and 402 of the Federal Water Pollution Control Act, 42 u.s.c. §§1311 and 1342.

(7)

The Commission shall prohibit the staff from approving any modification of the Surry facility resulting in discharges into navigable waters until it has received from the State-of Virginia the certification required under §401 of the Federal Water Pollution Conrol Act, 42 u.s.c. §1341.

(8)

The Commission shall notify all Atomic Safety and Licensing Boards, as appropriate, of the above actions and shall prohibit the issuance of any permit:, license, or amendment thereto allowing the replacement*or repair of steam generators pending the com-pletion of the environmental impact statements and other studies described above.

.../ ..

),

.Petitioners urge the Commission to* respond to this petition without delay.

The imminence and gravity of the harms sought to be remedied demand immediate remedial action.

A less than expeditious response will necessitate resort to alternative avenues of relief.

Respectfully submitted, James B. Dougherty l07 Eleventh St., N.E.

Washington, D.C.

20002 (202) 452-9600 Counsel for Petitioners I hereby affirm.that t-he facts alleged herein are correct to the best of my information and bel.ie.f.

James B. Doug~erty Dated this 18th day of April, 1979, at Washington, D.C.

/

APPENDIX B AFFIDAVIT OF DR *. ERNEST STERNGLASS

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT POTOMAC ALLIANCE,

CITIZEN'S ENERGY FORUM, INC.,

VIRGINIA SUNSHINE ALLIANCE, TRUTH IN POWER, INC.,

Petitioners,

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION, UNITED STATES OF AMERICA, Respondents.*

)

. ~

)

______________________ )

AFFIDAVIT OF DR. ERNEST J. STERNGLASS Civil Action No.

Dr. Ernest *J. Sternglass, being duly sworn, deposes and says:

I am Professor of Radiological Physics in the Department of Radiology, University of Pittsburgh, Pennsylvania.

I have been working in the field of nuclear physics, nuclear reactor instrumentation, health physics, and the biological effects of radiation since 1952.

In that year I joined the Westinghouse Research Laboratories after receiving my doctoral degree in Engineering Physics from Cornell University.

Further details on my professional qualifications are provided in the biography attached to. this statement.

I have examined the environmental impact statement for the Steam Generator Repair Project, Surry Unit I Nuclear Power Plant.

It. is my professional opinion that the statement is grossly inadequate for the reasons outlined below:

1.

The impact statement seriously misrepresents the gravity of the very large radiation dose to the workers that has been predicted to occur by the N.R.C.

staff and the outside consultants at the Battelle

Laboratories.

The estimated doses range all the way from about 4000 man-rems to about 12,000 man-rems or 2 to 6 rems given to 2000 individuals.

This must be compared with the typical maximum permissible dose of 5 rems per year to a single worker under present N.R.C.

regulations.

At recent Congressional hearings, Dr. Edward*

Radford, present Chairman of the National Academy of Science Connnittee on the Biological Effects of Radiation, characterized the N.R.C. limits as probably 10 times too high in the light of new studies of a number of human populations exposed to low-level protracted radiation doses.

.In addition, my own studies and those of other researchers in the field seem to indicate that a dose as small as 5 to 10 rems exper-ienced over a period of

e months or years can double the normal risk of leukemia and cancer.

Thus, for the impact statement to lightly brush off such a dose for thousands of workers as

"insignificant" is highly irresponsible_ and misleading.

A total minimum estimated radiation dose of 4000

. man-rems, instead of _being likely to result in less than one additional cancer case, is in fact more likely to result in anywhere from 20 to 50 cancer deaths, and twice this number of cancer cases, which.could by no means be characterized as insignificant.

These estimates are consistent with the latest research.performed in the field.

On July 9, 1980 a study prepared for the National Institute for Occupa-tional Safety and Health was publicly released.

Its.

conclusions corroborate the dose/response estimates given above.

The exposed population in that case consisted of employees of the Portsmouth Naval Ship-yard involved i_n repair and maintenance of pressurized water reactors.

2.

The dose estimate given in the impact statement for the workers may well have been seriously underestimated because it, as well as all comparisons with doses received from normal operations, is based on radiation badge readings.

Badge readings have repeatedly been found to underestimate the external doses received by workers depending on where they are worn and how they are read.

e But more important is the fact that they do not report the internal.beta ray doses to critical organs received through inhalation of radioactive dust and gases, nor the beta-ray doses received by the skin and the lenses of the eyes.

These internal doses can rise to a level as J,...

high as 10 to 50 times*:,larger. -;than the-,e~t.ern;a.l gamma-ray doses registered by radiation badges.

The impact statement fails to address this serious problem, although it clearly admits that radioactive gases and dust will be generated by the welding and grinding operations contemplated.

3.

The impact statement admits that the phenomenon of steam generator corrosion is still being studied and is therefore not fully understood, so that there is no guarantee that the entire repair operation might have to be repeated as often as every five to ten years.

The overall radiation doses due to later operations of the same nature have not been addressed at all.

Thus, the total societal and health impact in terms of genetic damage and somatic damage has not been adequately considered, especially since it is admitted that many if not all reactors of this type suffer*from the same serious defect.

4.

The impact statement admits that the health effect of projected offsite releas.es of_ airborne particulates was not ~onsidered.

Yet these materials include some of the*

most toxic and long lived radioactive elements, such as Cesium-137 and Strontium-90.

These materials enter the food chain and have, in the case of other nuclear plants, accounted for the largest doses to the public.

Failure to at least consider this possible source of population exposure, which could be repeated ~n many plants of this type, -seriously weakens the conclusions of the impact statement.

e Biography of Ernest J. Sternglass, Ph.D.

Educational Background Bachelor of Electrical Engineering, Cornell University 1944 Master of Science of Engineering Physics, Cornell University. 1951 Doctor of Philosophy in Engineer~ng Physics, Cornell University, 1953 Occupational Background-Professor and Director of Radiological Physic~, University of Pittsburgh, 1967 to present Advisory Physicist, *Westinghouse Research Laboratories, 1952 to 1967.

Research Physicist, U.S. Naval Ordnance Laboratory, White Oak, Maryland, 1946 to 1949 Electronics and Radar Technician, U.S. Navy, 1945 to 1946 Professional Societies and Awards Eta Kappa Nu (electrical~**engineering honor society)

Sigma Xi (scientific research honor society)

McMullen Fellowship, Cornell University Fellow,.American Physical Society

.American Association of Physicists in Medicine Radiological Society of North America Society of Nuclear Medicine Health Physics Society Federation of American Scientists American Association for the Advancement of Science Philosophy of Science Association

.American Astronomical Society Past Chairman, Pittsburgh Chapter of the Federation of

.American Scientists Professional Experience Development of nuclear and radiological 'instrumentation for diagnostic purposes in nuclear medicine and radiology Fundamental theory development on the interaction of radiation with matter and its biological action Statistical studies of the effects of low-level environ-mental.radiation on the human fetus, infant, and adult Author, Low~Level Radiation, Ballantine Books, N.Y.,

.19T2, translated into German and Japanese Author of a review article on the biological effects of environ-(.;

e mental radiation from natural and man-made sources (Chapter 15), Environmental Chemistry, J.O.M. Bockris (ed.), Plenum Press, N.Y., 1977.

Author of some 100 *scientific papers and articles in the field of nuclear physics, radioloiical sciences,

- nuclear instrumentation, astronomical instrumentation, radiation interaction with matter, and biological effects of radiation on man Patents Ten patents in the field of electronic and nuclear instrumentation I am the author of the attached affidavit relating to t:le e11virori... n1ental inpact ste..tement for the: Virginia Electric foKer CcIJpany SurI"'J U.:i.i t I nuclear reactor.

1fotarized by:

STATE OF INDIANA)

.)ss COUNTY OF MONROE University cf Fittsburgh School of Medicine September 12, 1980

.Physics Sworn to and before me a Notary Public in and for said State and County this 12th day of September, 1980.

WILMA R. LATIMER, Notary Pubfic" My Commission Expfres January 181 1983 Rtisidsnt ef Monroe County.

e APPENDIX C AFFIDAVIT OF DR. JENS SCHEER

e IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT POTOMAC ALLLt\\NCE,

)

CITIZEN'S ENERGY FORUM, INC.,

)

VIRGINIA SUNSHINE ALLIANCE,..

)

TRUTH IN POWER, INC.,

)

Petitioners,

)

v.

)

UNITED STATES NUCLEAR REGULATORY COMMISSION,

)

UNITED STATES OF AMERICA,

)

Respondents.

)

______________________ )

AFFIDAVIT OF DR. JENS SCHEER Civil Action No.

Dr. Jens Scheer, being duly sworn, deposes and says:

My name is Dr. Jens Scheer.

A brief summary of my professional qualifications follows.

I have worked in experimental nuclear physics and environmental related research for 24 years, and have published more than 40 scientific articles on these subjects.

I am currently Professor of Physics at the University of Bremen, W-Germany.

I have been Radiation Protection Officer responsible for Health Physics at the First Physical Institute of the University of Heidelberg, W-Germany.

e I have held the same position at the Nuclear Physics Department of the Hahn-Meitner Nuclear Research Center in W-Berlin.

My present research fields are low level radiation effects;

- assessment of heavy metal trace elements and radioactive nuclides (particularly aerosols) in both the general and working place environments;

- workers' protection related research;

- reactor safety.

I have examined the final environmental statement related to steam generator repair at the Surry nuclear plant (NUREG-0692) and must state that many of the problems likely to result from the operation are grossly underestimated or ignored.

One of the statement's most flagrant deficiencies is that the dose to the workers involved appears to be underestimated.

There is no mention made of internal*

doses due to inhaled radioactive particles or aerosols.

There will however be a very large amount of such fumes involved in cutting the contaminated pipes.

While it can be hoped that respirators and protective clothing will be worn by the worker,s, there is no mention of that fact in the statement.

Nor does it mention the effectiveness of that equipment.

Apart from inhaled doses, well accepted studies show that the external dose *may easily be twice as large as the predicted radiation badge measurements.

\\)

Furthermore, caution is appropriate in using the co~cept of population dose, with unit man-rem.

This completely neglects variation of susceptibility to radiation damage within the population.

Assuming the roughly 4000 man-rem estimate to be correct, this would imply, according to recent observa-tions of a comparable population of exposed individuals, that between 10 and 60 cancer cases will occur among the workers.

This number may even be increased due to synergistic effects from other hazards in the work-place environment.

For example, -wor~ers who smoke tobacco or are exposed to carcinogenic substances in the workplace will be at higher risk from radiation exposure.

A similar number must be expected for genetic diseases in the coming generations.

The environmental burden outside the plant also appears to be gr~ssly understimated; there are no detailed data on the isotopic composition of the releases; the neglect of sr90 is especially serious.

This is particularly so in view of the large amount of water which will be used in cleaning the d'evices.

In addition, I and many other experts in this field believe that typical dose-response curves for radiation are super-linear at low doses.

Therefore, the NRC's means of predicting numbers of radiation-induced illnesses may significantly underestimate the true effects of low-level radiation.

The comparison made in the impact statement with respect to external radiation doses (in moving from Washington to Denver) are misleading, as they neglect effects due to incorporation of radioactive matter, microdosimetric effects within the tissue, variation of relative biological. effeciency with-energy. of the radiation, indirect bidchemical effects due to formation of aggressive radicals and various other complicating mechanisms.

The failure to refer to these complications and the making of this simplistic comparison points to grave failure of the authors of.the statement to keep up with essential radiological findings in the last years and leads-me to doubt the ability of the authors to adequately cope with this subject matter.

There is no reason to assume that this repair will be the last in the history of the plant. It is not clear that a similar repair will not be heed again after some more years of operation.

This would sharply increase the total radiological burden projected over the lifetime of the plant.

e

. This is to cert_.ify,that the foregoing affidavit relating to the environmental im?act statement for the re]air of damage to the heat exchanger at the Virginia Electric.

.Power com.::,any' s Sur~J nuclear reactor

( ~,-r:)-*lr, o* 60,-,)

T.-

Jc; u.w\\J

/ C.

1 as ;_: }repe.red by me.

STATE OF INDIANA)

)ss COUNTY OF MONROE)

I),,._ Jt~ 4, ur.-G</

Prof~ssor Dr.Sens A.Scheer Professor for Physics at the University of Bremen 9-12-80 Sworn to and before me a Notary Public in and £.or said State and County this 12th day of September, 1980.

WILMA R. LATHv!ER, Notary Public My Commission Expires January 18, 1983 Resident of Monroe County.

APPENDIX D SELECTED PORT.ION OF NUREG-0 5 2 3

e NUREG-0523

SUMMARY

OF OPERATING EXPERIENCE WITH RECIRCULATING STEAM GENERATORS D. G. Eisenhut B.D. Liaw J. Strosnider Manuscript Completed: January 1979 Date Published: January 1979 Division of Operating Reactors Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington. D.C. 20555

I.,

"=*

1.

Any tubes that were damaged during the rim and support lug removal operation were plugged.

'-... ~. '

2.

All tubes that lie along an apparent continuous series of liga~

ment cracks in the p 1 ates were p 1 ugged..

3.

All tubes not passing the 0.540-inch ECT probe and those surround-ing the restricted tube were plugged.

Implementation of the plugging criteria resulted in plugging 290 tubes in steam generator 1 and 352 tubes in steam generator 2.

4. 1.5 Other CE Facilities r

Maine Yankee and Arkansas Unit 2 are other CE facilities that have removed all lugs at each drilled support plate and a portion of the peripheral solid rim in the uppermost plate to reduce "hard spots 11 and minimize the potential for cracking and shifting of the plates in each steam generator.

At Arkansas Unit 2, these modifications were performed prior to initial

[

startup. Other CEuni~s~ Calvert Cliffs Units land 2_and ~ort Calhoun*

Unit. l, have not exper, enced any fonn of tube degradat, on with an AVT chemistry.

Recent inspections of St. Lucie Unit l steam generators revealed a buildup of corrosion products in the annulus between the tube and tube support plate, creating a potential for future denting.

A proposal to chemically clean the St. Lucie Unit l steam generators to remove these corrosion products is being reviewed by the NRC.

4.2 Long-Term Repairs 4.2. l Tube Sleeving Combustion. Engineering presently has under way a program to de111onstrat.e the feasibility of insta]Jing sJeeves as an alter.nate measure to tube plugging at the Palisades facility.

The operation of the Palisades steam generators has, in the past, resulted in localized corrosive attack on the outside (secondary side) of the steam generator tubing.

The reduction in steam generator tube_ wall thickness due to this corrosive attack may progress to the point of causing tubes to leak during operation.

In addition, reduct.ion in tube wall t.hickness may lessen the abilit.y of the tube to continue to perform its function as a primary coolant pressure boundary during design accident conditions such as a loss-of-coolant accident (LOCA) or a main steam line break (MSLB).

Historically, the corrective action taken where steam generator tube wall degradation has been identified was to install welded plugs at the inlet_

and outlet of the steam generator tube when the reduction in wall thick-ness exceeded the plugging limit.

This value of wall reduction requiring

plugging was calculated such that adequate tube strength remained to prevent failures of the steam generator tubes during normal operation and postulated accident conditions.

Installation of tube plugs in a steam generator tube removes the heat transfer surface of the tube from service.

The technique for installation of steam generator sleeves eliminates this negative aspect of steam generator tube plug installation.

The sleeves are installed at the local area of tube wall reduction and impose only a minor restriction to primary coolant flow.

Thus, while providing a corrective response to the weakening effect of tube wall reduction, the effects on heat transfer and primary coolant flow are minimized.

The steam generator sleeving concept consists of installing, inside the steam generator tube, a smaller diameter Inconel-600 tube to span the degraded area of the parent steam generator tube.

This system is shown in Figure 17.

Both ends of the inserted sleeve are hydraulically ~xpanded into an interference fit with the parent tube.

The rationale for installing the sleeves in this*manner is to restore the mechanical strength of the degraded tube to a level adequate to prevent rupture during postulated accident conditions.

By installing a sleeve to span the degraded area, the structural integrity of the tube is reestablished.

Although the sleeving process has been used only on a limited scale at the Palisades steam generators, the sleeving process may be applicable to all PWR generators.

To qualify the sleeve for other applications, specific sizing and environmental conditions would have to be examined to ensure applicability.

{.--4-.-2-.._S_t_e_a_m_G_e_n_e_r-at_o_r_R_e_p;)_i_r Extensive preventive plugging as a result of continuing tube denting can cause excessive steam generator inspections and reduction in unit avail-

~

ability.

For these reasons, Florida Power and Light Company (FPL) and Virginia Electric Power Company (VEPCO) are planning replacement of the lower portion of the steam generators at Turkey Point and Surry, respec-tively.

FPL and VEPCO are currently pursuing engineering and licensing activities to effect these steam generator repairs.

Repair of the first such steam generator is tentatively scheduled to begin in early 1979.

The existing steam generators are expected to be cut apart at the transition piece to the upper section of the shell.

The upper section of the steam generator will then be stored inside the containment and joined to the new lower steam generator assembly, which will include the new tube bundle.

The lower assemblies, including the old tube bundles, will exit the contain-ment via the equipment hatch.

12" STEAM GENERATOR ~

TUBE 3/4" OD x 0.048 WALL t

1" TYP.

t 1/4" TYP.

(c"*

j

.. ".:,.. *;:.~:::,{"t.

SLEEVE 5/8" 0 D x 0.032 N,.,----,-----c::;;._.._i w ALL 11.1.------""'*

RADIAL DEFORMATION*

0.01 O" TYP.

SUPPORT.

STRUCTURE INTERFERENCE MECHANICAL JOINT

).,

\\

FIGURE 17. STEAM GENERATOR TUBE SLEEVE

ML18139A515

Text

SUMMARY

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