ML19224D283
| ML19224D283 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 06/01/1979 |
| From: | Roisman A National Resources Defense Council |
| To: | |
| Shared Package | |
| ML19224D275 | List: |
| References | |
| NUDOCS 7907110265 | |
| Download: ML19224D283 (8) | |
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.g UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOh jyg.'+ 1973 P [",,
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In The Matter Of
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DUKE POWER COMPANY
)Dkt. No. 70-2623
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(Amendment to Operating License SNM-1773 )
for Oconee Spent Fuel Transportation ~and )
Storage at McGuire Nuclear Station)
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NATURAI RESOURCES DEFENSE COLNCIL MOTION FOR SUSPENSION OF HEARING SCHEDULE On May 1.3, 1979, the United States Court of Appeals for the District of Columbia Circuit held that, prior to approval of-a proposal to permit expanded storage of spent fuel, the Nuclear Regulatory Commission must (Minnesota v. Nuclear Reculatorv Co==ission, F.2d Nos. 78-1269, 78-2032, decided May 23, 1979, Slip Op. p. 14):
determin[e] whether there is reasonable assurance that an off-site storage solution will be availably by the years 2007-09, the expiration of the plants' operating licenses, and if not, whether there is reasonable assurance that the fuel can be stored safety at the sites beyond those dates.
We neither vacate nor stay the license amendments, which would effectively shut down the plants.
Because that finding has not yet been made by the Commission, nor for that matter has the Cc= mission even addressed how it intends to implement the order of the Court, it is pointless 1
to proceed to hearing ^ on other issues in this case the resolution if This motion is principally addressed to the hearing scheduled for June 19 and not to completion of any prehearing procedures.
As we argue subsequently, the passage of time may negate the validity of any decisions now reached by the Board on the surnrnn f disposition motions insofar as they relate to factual issues.
Since these have been partially briefed, the Board may find it advantageous to resolve them now, since they may in part provide guidance to the parties on their rights and responsibilities in a subsequent hearing.
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2 of which at this time could be mooted by subsequent action and could be materially altered by intervening facts unrelated to the Commission decision.
Potomac Electric Power Company (Douglas Point), ALAB-277, 1 NRC 539-(1975).
The significance of the Court decision in Minnesota v.
Nuclear Regulatory Commission, suora, is enormous.
In ALAB-455, the Appeal Board held that interim spent fuel storage approvals must be preceded by a finding that there is reasonable assurance that wastes generated by the nuclear facility will be permanently and safety disposed of, either on or off site.
The Court con-firmed this requirement, although it was disputed by intervenor, Vermont Yankee.
In ALAB-455, the Appeal Board also held that the required finding had been explicitly made when the Commission rejected a petition filed by NRDC with respect to the need for a generic safety finding on nuclear waste disposal.
The Court in Minnesota v. Nuclear Regulatorv Commission, supra, rejected that conclusion and held instead that the necessary finding must be made after an opportunity for all interested parties to compile a record on the precise issue presented.. Within the limits of the law, the Court left to the Commission the choice of procedures to be used.
Slip Op. pp. 15-16.
In this case Duke seeks authority to expand spent fuel storage for the Oconee reactor by shipping spent fuel generated at that reactor to McGuire.
While the f actual situation differs from that in the Court case, there is no doubt that the Court decision applies with equal force here.
The Court found that (Slip Op. p.
11):
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3 we think it catat that the central issue posed by petit uners -- the feasibility of interim or ulti= ate nuclear waste disposal solutions -- is one essentially co= mon to all nuclear facilities.
Throughout the opinion, the Court makes clear that it is focussing on the need for the reasonable assurance finding for all NRC licensing actions which permit the original or further production of nuclear waste.
E.g.,
Slip Op. pp. 11, 15.
The finding which the Commission must make will determine as an initial matter whether the propor 1 action can be allowed.
If the reasonable assurance finding cannot be made with respect to safe,. permanent storage of nuclear wastes, either away from the reactor or at the reactor, then the Duke proposal cannot be approved.
Even if the reasonable assurance finding can be made, the precise finding as to when it is reasonably a.esured that such a permanent storage facility will be available will significantly alter the outcome of several pending issues.
In our statement of material facts in support of our Motion for Sumary Disposition (May 21, 1979), we included the following:
6.
It can not be reliably concluded that a permanent waste disposal facility sufficiently large to accommodate the Duke needs will be in place and available for u.ee by Duke by 1995.
A finding on this point is now to be made by the Ccemission as a result of the remand from the Court of Appeals.
The conse-quence of that finding will directly affect the outccme of several issues in this proceeding, since the lencth of time there is no permanent waste disposal facility available for Duke spent e
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4 fuel will bear directly on the feasibility of and need for various alternative interim spent fuel storage plans.
Thus the validity of findings related to the need for alternatives will remain in doubt until af ter the completion of the Court ordered NRC analysis.
As the Board can see from our :f.Llings, the heart of our case at this time is the failure of-the Staff to thoroughly investigate the alternatives required pursuant to NEPA and ALARA determinations.
In a different sense, the pending det - ination by the Commission of the reasonable assurance of implem9ntation of a permanent waste disposal solution will impact on the continuing validity of tindings intended to be made by this Board on pending issues.
As the Board has already seen in this case, the passage of time has altered many of the factors pertinent to this case.
When the application was filed, Duke asserted that (Information Supporting Storage of Oconee Spent Fuel at McGuire, March 9, 1978, p.
18-2):
Storage expansion of. the Unit 1 and 2 storage pool would. also require use of high density storage racks.
To accomplish this, all fuel would have to be moved elsewhere, the pool drair.ed and decentam-inated, existing racks removed, and new racks installed.
Since space for interim storage of the fuel in the Oconee 1 and 2 pool is not available this option is not considered viable.
By February 2, 1979, Duke had concluded that (letter to Harold Denton from William O. Parker, Jr.):
If licensing delays do not e.xtend beycnd the June time frame requested reracking can proceed without necessitating shipment of spent fuel off site.
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5 In our initial petition to intervene, the issue of safeguarding spent fuel shipments was crucial.
The Staff has now success-fully obtained Comission approval of a new regulation that may essentially elinn nate the safeguards problems.
There is also a pending final environmntal impact statement on the interim spent fuel storage problem whose publication might be er:pected to impact on these proceedings.2 The Court decision will of necessity postpone the final decision on this proposed action while this Board awaits the final Cor=nission action on the remanded issue; During that time issues now resolved by the Board relating to standards governing the shipment of spent fuel, ti.
viability of alternative courses of action and even the basic rules under which this proceeding is being conducted can change dramatica!.1/
2e possibility of those enanges would not be so relevant were this hearing certain to be concluded in the near future.
But of cou'.se it is now clear that an early resolution of this case is not possible.
The governing principles to be applied, where the. issue is whether to proceed to hearing on a case whose ultimate resolution has been postponed, is set forth in Potomac Electric 2f In this proceeding, where the Staf f is an adversarial party, it is doubtful that a Staff-produced generie impact statement can be considered a Cc==1ssion er otherwise authoritative pronouncement.
See attached letter to NRC Cc=missioners from Anthony Z.
Roisman, dated June 1, 1979.
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6 Power Company (Douglas Point), ALAB-i. 7 7, 1 NRC 539, 547:
(1) the degree of likelihood that any early findings on the issue (s) would retain their validity; (2) the advantage, if any, to the public interest and to the litigants in having an early, if not necessarily conclusive, resolution of the issue (s) ; and (3) the extent to which the hearing of the issue (s) at an early stage would, particularly if the issue (s) were later reopened because of supervening developments, occasion prejudice to one or more of the litigants.
Application of those standards to this case require that the Board postpone the hearings, at least with respect to the key issues which NRDC seeks to pursue.
As already discusseA, fundamental findings on when a,
permanent waste repository will be available, the viability and availability of alternatives and even the fundamental rules which govern this proceeding are all subject to change within the time between now and final resolution by the Commission of the reasonable assurance finding.
3f Although a precise time for completion of the commission analysis is not possible at this time, the Board can take official notice of the time required for Commission decision on other issues, such as the more than 6 months which have passed since the entire S-3 record, including oral argument,
.t to the Commission without a decision yet being issued.
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..en the difficulty of the issue presented, particularly the reed for the Ccemission to focus on a particu r date on which
.t believes there is reasonable assurance, if here is, of de availability of permanent disposal space r spent fuel (the more waste, the more space needed) and the need to address not only whethe. a storage capability could be developed but whether it will be, it is more than reasonable to assume that nc decision will be made b-fore the end of 1979.
On May 29, 1379, the Commission announced that issuance of the S-3 rule itself would be postponed for two months while the Cec =ission considered the implications of Minnesota v.
- NRC, supra.
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7 The public interest would not be advantaged by the early but inconclusive resolution of the issues raised by NRDC.
Like the need for power determination in Douglas Point, the issues raised by NRDC are directly affected by the passage of H ma. As we indicate in footnote.1 above, there may be some advantage to resolution of some of the legal issues raised by the motions for summany disposition.
Since much of the briefing has been done, we leave that question to the Board and essentially remain agnostic.
To the extent the Board finds that statements of un sputed material facts may be affected by the passage of time or the Commission's action, a resolution of the summary disposition motions at thir time would not be appropriate.
Because the thrust of our case at this point is the absence of a sound analysis on key issues to be able to go to hearing, we obviously see no benefit to cushing to hearing now to inadequately resolve factual issues whose validity s
_1 be undermined by subsequent events.4 There is also no public interest disadvantage to waiting.
It is now settled that Duke's uncontested application for re--
racking at Oconee will be approved, thus extending FCR at least until May 1982 for all the reactors.
By awaiting the outcome 4_/
Cur stipulated admission as a. party precludes us from addressing this issue as it relates to contentions of other parties except as necessary for our own presentation.
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8 of the Court of Appeals remand to the Commission, this Board will merely allow matters critical to this proceeding which are now in a substantial state of flux to be resolved, at which time the course of this proceeding will be swifter and more certain than any early resolution of the issues presented.
Respectfully submitted, M;
2,
.M Anthony 3 isman Natural
,e urces Defense Council 917 15th Street, N.W.
Washington, D.C.
20005 (202)737-5000 Dated:
June 1, 1979
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