ML19224D594
| ML19224D594 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 05/29/1979 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7907130042 | |
| Download: ML19224D594 (17) | |
Text
..
e os FRC PUELC DOCLTEEr 100M CNITED STATES OF AMERICA
$fE l5 ~/
l.1373 N 'if NUCLEAR h GUL3. TORY CCMMISSION 3Qt{
BEFORE TEE ATOMIC SAFETY AND LICENSING EOAIC p
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In the Matter of
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to DUKE POWER COMPANY
)
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Docket No. 70-2623 (Amendment to Materials License
)
SNM-1773 fot Oconee Nuclear Station
)
Spent Fuel Transportation and Storage
)
at McGuire Nuclear Station)
)
APPLICANT'S RESPONSE TO NATURAL RESOURCES DEFENSE COUNCIL'S MOTION FOR
SUMMARY
DISPOSITION WITH RESPECT TO NRDC CONTENTICN 4 I.
_P ACKGROUN'
' arch 9, 1978, Duke Power Company (Applicant) s.
applied to the Nuclear Regulatory Commiss ton (NRC or Com-mission) for an amendment to its Materials License No.
This application recuested authority to receive and store spent nuclear fuel from the Oconee Nuclear Station (Oconee) at the McGuire Nuclear Station, (McGuire). In response to the July 28, 1978, Commission notice regarding the subject application (43 Fed. Reg. 32905), NRDC filed its petition for leave to intervene.
Subsequently, by Order dated February 13, 1979 the Licensing card granted NRDC discretionary intervention limited by t estrictions centained in a stipulation appended to the Order. 1/
Sy Crder dated March 16, 1979, this Licensing Scard ruled that s ix (6) contentions raised by NRDC would be admi r,te d.
-1/ Onis stipulatien, inter alia, r es tr icts NRDC 's pa tic i-patien to only those contentions it advances which are admitted by the Licensing Ecard.
Ai4 1 93 g
79071300 %
Ci Thereafter, on May 4, 1979, N RDC filed the subject motion for summary disposition with respect to its Contention 4.
Applicant submits that its Motion for Summary Dispo-sition, filed on May 21, 1979 (incorporated herein by reference), as well as arguments advanced herein, clearly establish that NRDC's Contention 4 is without merit and, pursuant to 10 CFR S2.749, should be dismissed.
II.
ARGUMENT MaDC's Contention 4 asserts that the proposed action increases the exposure to radiation workers jb/ beyond that which is ALARA.
Further, NRDC asserts that ALARA can be achieved by expansion of on-site storage capabilities
[ Contention 4(a)) and, the residual risks associated with the proposed action militate against its acceptance (Conten-tion 4(b)].
2/
Although, as written, NRDC's Contention 4 also addresses the ALARA concept with respect to the pcblic, NRDC has apparently retreated frcm this position by stating in th e instant motica "(T] he basic thrust of our contentien is that the proposed action does not acsure that ce-leases to workers will be kept as low as reasonablv achievable."
See also NRDC's Resoonse to Applican't's
~
Interrocatorv *138, Apr il 16, 1979.
Applicant notes tna Ic is well recognized that answers to interroga-cories can be relied apen in support of motions, or responses to motions, f o r summary dispos ition.
10 CFR 52.749(b); F ed. Rules Civ.
P.
Rule 56(d) ;
J.
- Moore, Federal Practice, paragrapn 33.29 at 33-158 and 33-163 (2 ed. 2375).
4i4 19y
- NRDC =akes these assertions despite the fact that it has not made an analysis of, inter alia, the radiation exposure to workers of any of the alternatives to the proposed action, the specific steps in the proposed action or in any of the alternatives which result in the ALARA c r iter ia being exceeded, which alternatives would not exceed the ALARA concept, or the residual risks associated with any of the alternatives. _3/
With regard to the ins tant motion NRDC maintains that an adequate ALAPA analysis and subsequent comparison of the various alternatives has not been performed as NRDC contends is required by 10 CFR 520.l(c).
NRDC explains:
Both the S taf f and the licensee have prepared an analysis of the impact on workers of the proposed action but neither has made an attempt to demon-strate that the worker ex. sures ar e as low as reasonably achievab.s.
Such an analysis would require a thorough investigation of the worker exposures associated with the proposed' action and alternatives to it. (NRDC Mo icn at 1)
Further, NRDC questions the adequacy of both the S taf f and Applicant's analysis of the radiological impacts of the proposed action and alternatives thereto.
NRDC, tnerefore, 3/
See NRDC's Restonse to Acclicant's Interrogatories 120
- _50, Ap r ;_ 16, 1979.
NRDC nas responcec to 17 cf
- ne 3_
- nterrogatories relating to this contention w; n statements such as "[wje have made no such analys is".
A14 19ur
_4_
requests that this Board delay the instant proceedings until such an analysis and comparison have been perf ormed and subjected to review by all parties, 4/
Applicant submits enat in the instant pr oc eed ing (1) an ALARA evaluation of alternatives to the proposed action is not required, (2) the proposed ac tion meets the ALARA criteria and (3) any evaluat:.on of alternatives need only consider ciable alternatives capable of solving the immediate problem of lack of spent fu(1 storage space fo r the near term.
In any event, an analysis of the radiological impac ts of the viable alternatives has been made and it clearly shows that there is no significant diff erence between the proposed action and viable alter natives there to. As such, Applicant requests that NFDC's motion for summary disposition with respect to Contention 4 ba denied and that Applicant's mocion for sum =ary dispositior, with respect to Contention 4 be granted.
In the alternative, Applicant submits that NRDC f ails to adequately address all material f acts submitted by Applicant and the instant motion is, therefore, legally deficient and should be denied.
Applicant addresses each point, in seriatim, below.
_4/
Applic>n questions whether tn e relief sought by NRDC ia the instant motion is appropriate for a motion for summary disposition.
Applicant submits that such requested relief may militate against treatment of the instant motien as one for surmar*; disposition.
Il '* f I9b At the outse t, it is important to note that NROC does not take issue with the question of whether the proposed action (e.g., the transshipment ac t iv i ti e s ) in and of itself meets the ALARA criteria.5/
Ra the r, NRDC 's conce rn is that an ALARA comparison of all alternatives to the proposed action be made.
Applicant submits that NRDC incorrectly places reliance on the ALARA concept to suppo rt its position that the radiological consequences of various alternatives must be analyzed and compared.
Applicant acknowledges that where a proposed action has a significant impact on the environment the r e is a requirement to evaluate the various alternatives in light of their relative costs and impacts upon the environment.
However, this requirement stems from NEPA and not frem the definition of ALARA as contained in 10 CFR 520.1(c) 6/ and quoted below:
(c) In accordance with recommen-dations of the Federal Radiation Council, approved by the President, persons engaged in activities under licenses issued y tne Suclear Regulatory Commission
- snould, in adc t tion to complying witn the require-ments set forth in this part, make every reasonable effort to maintain radiation exposures, and releases of radioactive materials in effluents to unrestricted areas, as low as is reasonably achievable.
The term 5/ Applicant's March 28, 1979 Interrcgatories to NROC, #124 asked:
" Limiting y0er attention tc :ne transpo r ta tio n alte r na-tive, do you contend that any other means of transportation is ALARA?
If so, please provide deta iled suppor ting basis".
SELC 's response the reto was "12 4.
No."
~6/ Tnat Part 20 0 10 CFR is applicable s t em s f r ca NREC ' s ac k-knowledgement in its motion :nat tne " bas ic th rust" of is contention pe rtains "to war.<ers".
See Fcctncte 2, page 2.
fhf "as low as is reasonably achievable" means as low as is reasonably achievable taking into accoun: the state of technology, and the economics of imorovements in relation to benefits to the puclic nealth and safety, and other societal and socioeconc=ic consider-ations, and in relation to the utilization of atomic energy in the public interest.
(emphasis supplied)
To assure that any activity meets the ALARA c riteria as i= posed by 10 CFR $20.1(c), a detailed analysis of the equipment used and specific steps in that activity is required.
It would place an unwarranted burden on Applicant to require this type of in-depth analysis for each possible alternative.
Indeed, such an analysis would require, inter alia, detailed designs, procedures and operational characteristics and siting alternatives for each of the various alternatives.
Thus, the Cc= mission has imposed under NEPA the requirement that, under certain circumstances, a NEPA comparison of alternatives must be performed, consistent with a rule of reason. 7/
It follcws that this NEPA comparison does not require an ALARA type detailed analysis for each alternative.
Rather, NEPA requires a more general analysis.
When the appropriate alternative is selected, as an additional measure of protection, the actions under this alternative must be analyzed in detail and appropriate licensing conditions i= posed (i.e.,
" i=p r e v eme n t s " ) wnere needed, to assure tha t it meets the ALARA criteria.
-7/ See Prairie !sland and Vermont Yankee, supra, 7 NEC 48-49, and tne leg;cn cd cases tnere c1:ec.
[p In support of its position that a separate and distinct requirement for a radiological analysis of all alternatives exists under the ALARA definition, N REC c i te s the combined Appeal Board decision in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Unit 1 and 2) and Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAS-455, 7 NRC 41, (1978). 8/
In this decision, involving requested licensing amendments to modify the spent fuel storage capacity at the respective sites, the question of whether the ALARA crite r ia mandated an ALARA analysis of all alternatives to the proposed action was never raised.
Indeed, Applicant contends that no such comparison was ever made.
The sole issue, there, involving ALARA was whether the radiation exposure resulting f rom activities involving teracking of the spent fuel pool, the proposed action, could be reduced by shipping all racks of f-site without cutting them into smaller sections.
With respect to ALARA, the Appeal Board there stated:
It bears empaasis that the ALARA standard comes into play only after it has been determined that the applicant's proposal will comply with all other requirements imposed by Part 20 7 NRC 56, note 13.
In other words, the ALARA standard only addresses the activity under question in any proceedings (e.g.,
in the instant proceeding this activity is shipment of Oconee
-3/ In 5:ste of Minnesota v.
- NRC, F.2d.
, No. 75-1269 (0.2. Cir. May 23, 1979), :ne Cour upheld :ne Con =ission's issuance of licens ing amendments, but remanded the prcceeding on otner grounds, (e.g.,
for ccasidera-ion cf issues involving Table S-3).
414 199 fuel to McGuire) and not all alternatives under considera-ation.
Indeed, to hold otherwise would constitute a dupli-cation of the NEPA requirements and, as a practical matter, impose a virtual impossible burden on Applicants.
While NRDC does cite a Licensing Board Order in Commonwealth Edison Co. (Dresden station, Units 2 and 3, and Quad Cities Station, Units 1 and 2) Memorandum and Order (April 24, 1979) that holds that an ALARA analysis may be required for alternatives, Applicant contends that th is Order addresses this contention only from the aspect of intervention and, in any event, does not corport with countless other decisions wherein no ALARA comparison of alternatives was made. See Portland General Electric Co.
(Trojan Nuclear Plant), ALAB-531, __ NRC __ (March 21, 1979); Prairie Island and Vermont Yankee, supra; York Conmittee for a safe Environment v. NRC, 527 F.
2d. 812 (D.C. Cir. 1975).
From the foregoing, Applicant centends that the ALARA criteria mandates consideration of the proposed action to assure tP c all activities thereunder are consistent with the ALARA concept.
Fur ther; Applicant submits that with respect to th e proposed action, this requirement has been fulfilled.
Con-sideration of activities at Oconee involving handling and transshipment of Oconee spent fuel have been thorougnly analyzed during previous Oconee proceedings and sucsequently during the continued Cconee operation activities, including shipment of Cconee spent fuel.
Such activities are conducted so as to c hh eet the ALARA criteria.
Further, the handling and storage of Oconee spent fuel at McGuire has been thoroughly analyzed and in the Staff's " Safety Evaluation Report Related to Spent Fuel Storage of Oconee Spent Fuel at McGuire Nuclear Station - Unit 1 Spent Fuel Pool", (SER), January 1979, the Staf f states th a t such activities meet the ALARA criteria.
SER at 2-6.
9/
In sum, Applicant contends that NRDC's Contention 4 attempting to impose an ALARA alternative compar ison re-quirement in addition to requirements contained under NEPA is without merit.
As such, Applicant maintains that it should be dismissed.
See Applicant's Motion for Summary Disposition which requests such relief.
Inasmuch as NRDC 's instant Motion for Summary Disposition is premised on this Contention, it should be denied.
Wi th respect to alternatives, Applicant submits that the environmental ef fects of the proposed action have been thoroughly analyzed by the NRC Staf f in its EIA of December 1978.
Therein the Staff concluded that " transshipment will result in negligible environmental impacts." 10/
Applicant maintains that unless NRDC can provide specific ref erence as to how the proposed action will result in a significant impact upon the quality of the human environment it is precluded frcm asserting that alternatives there to ar e inedequately considered.
As the Appeal Board stated in Trojan, sucra: "there is no. obligation to search out possible
-9/
See aisc " Affidavit of Dr. John V.
Ne hem ias ", May 10, 1979, at 4 ) "We conclude that the exposures likely to result frer the transshiptent of Cconee spent fuel to McGuire, as described by Applicant, wo uld ce ALARA".)
[</
~10/ EIA a: 59.
l0[
alternatives to a course which itself will not either harm nr.e environment or bring into serious cuestion the manner in which this country's resources are being expended."
(slip cpinion at 3)
In any event, Applicant submits that only viable alter-natives to the proposed action need be considered.
The underlying purpose of the proposed action is to provide an interim solution to sn immediate problem, vis, the possible loss of a full core reserve capability in 1979 and termina-tion of operations of Oconee in early 1981 due to insuf f i-cient spent fuel storage space.
The only other viable option that provides a timely solution to this problem, ccatemplating the continued mode of base-loaded f ull-power Oconee operation, is reracking of Oconee 1 and 2 spent fuel pool with "non-poison" racks. It is unlikely that any other storage option could be implemented until af ter termination of operations. 11/ Applicant therefore has filed appropriate applications for both alternatives to assure that suf ficient storage space would be available for concinued operation of Oconee.
While Applicant will continue to plan for other options for the future, Applicant maintains that en evalua '
tion of these options is not at present warranted pursuant to the " rule of reason" as articulated in NREC v.
Morton, 12/
wherein it is stated that:
11/
Applicant's Response to NREC's !nterrocatory 110 anc
.3, Marcn 27, 1979; NRC's Respcnse to N ROC ' s Recuest for Admissions 45, Ap r il 5, 1979; Applicant's Respcnse to NREC Interrogatory d24, 25'II), May 7,
1979; anc IIA pp. 49-56.
11/
458 F.
2d 827, (D.C. Cir. 1975); See also Footnote 7, pa7s 7.
/:9 Jg 4
i.
...NEPA was not meant to require detailed discussion of the environmental effects of
' alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and spec'11a tive possibilities, in view of bcsic changes required in statutes and policies of othe r agencies--making them available, if at all, only af ter protracted debate and litiga-tion not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed."
458 Fed. 2d. at 837-38. 13/
Applicant rotes that, regardless of the action taken with respect to its application for reracking of the Oconee Units 1 and 2 spent fuel pool, shipment of spent fuel would be required for that and all other foreseeable options to the spent fuel storage problem at Oconee.
These options are:
(1) use of " poison" racks (installation requires shipment); (2) expansion of both spent fuel pools (not viable due to physical layout of existing pools which preclude expansion); and (3) construction of an independent
.e to r ag e installation at Oconee, economically viable only for storage of all of Applicant's spent fuel, thus recuiring shipment). 14/
In short, shipment of spent fuel is the cornerstone of all viable on-site storage options.
13/
See also Northern States Power Ccmpany ( Prair ie Island Nuclear Generating Plant, Cnits 1 anc 2) AJ.AB-4 5 5, 7 NRC 41, 48-49 (1978).
14/
See Aorlicant's Response - to NROC's Inter r ocatorv 310 anc 13, Marcn 27, 1979; NRC's Response to NRSC's Recuest for Admissions a5, Apr il 17, 1979; A=plicant's Response tc NRDC 's I nte r rocato r ies s24 and 26 (
),
May 7,
1979.
c With respect to the two viable alternatives, the proposed action and reracking of Oconee Units 1 and 2 spent fuel pool with non-poison racks, Applicant contends that both have been thoroughly evaluated by the Staff and the Applicant and such evaluation shows that the residual risk associated with each alternative is negligible and not significantly different.
The results of Applic;7t's evalu-ation are contained in, inter alia, the following documents-(a)
The respective eplications of the two alternatives.
(b)
William O.
Parker, Jr. to Clifford V.
Smith, NRC/
LNMSS, Octobcr 20, 1978 letter responding to informal Staff request of October 4 and 5, 1978.
(c)
W.
O. Tarker to Clifford V.
Smith, NRC/CNMSS, March 9,1978 letter transmitting application for license to store Oconee Nuclear Station fuel at McGuire Nuclear Station.
(d)
W. O. ?arker to Clifford V.
Sm i th, NRC/ONMSS,
June lti, 1978 lettec responding to Staff letter of May 19, 1978.
(e)
Applicant's Resconse to NRDC 's Recues t for Admissions g, April 17, 1979.
(f)
Apolicant's Response to NRDC's Interrccatory 421, May 7, 1979.
The results of the Staff's evaluation are contained in, inter alia, the following documents:
(a)
EIA (b)
SER (c)
Memo to File by B.
S. Spitalny, NRC/CNMSS, November 7, 1973.
(d)
Memo to File by S.
S. Spitalny, NRC/CNMSS,
November 9, 1978.
4j1 20g (e)
NRC's Resoonse to NRDC's Recuest for Admission 48, April 18, 1979.
(f)
" Affidavit of Dr. John V. Nehemias", May 10, 1979, Appended to NRC's Motion for Summary Disposition of NRDC's Contentions 1 - 5.
(g)
" Affidavit of Dr. Michael A.
Parsont", May ll, 1979, Appended to NRC's Motion for Summary Disposition of NRDC's Contentions 1 - 5.
S ignif icantly, the most recent NRC Staf f's evaluations, Affidavits of Dr. Michael A. Parsont and Dr. John V.
- Nehemias, referenced above, clearly establish that based on very conservative assumptions, the residual risks associated with the proposed action are, in essence, no different than that of the only other viable option, teracking Oconee Units 1 and 2 spent fuel pool with non-poison racks.
Thus, Appli-cant submits that NRDC's Contention 4 is wi thout merit and should be dismissed.
This position is reinforced by the fact that NRDC has not contested any of the above referenced documents.
Indeed, in that NRDC has made no radiclogical analysis of any alternatives, it is difficult to perceive how NRDC could ccntest them. 15/
Rather, NRDC simply asse rts that as a general proposition adequate evaluations have not been performed.
This type of assertion was expressly rejected by the Supreme Court in Verment Yankee Nuclear Pcwer Corp. v. NRDC 435 U.S. 519 (1977).
Therein the Supreme Court stated:
11/
See NRDC's Resoonse to A plicant's Inte r r ceate r f 1137 - 140, April 16, 1979.
4/4 20r
14 -
"it is still incumbent upon interven..: who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the inte rveno r 's position and con-tentions."
435 U.S.
at 553.
Continuing the Court stated, "Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obs-tructionism by making cryptic and obscure refer-ence to matters that "ought to be considered and then, af ter f ailing to do more to b -ing the matter to the agency's attention, seeking
- have that agency determination vacated on the c round that the agency failed to consider matters ' forcefully presented'."
435 U.S.
at 554.
Applying the Cour t's teachings here,
Applicant con-tends that NRDC, in asserting that various alternatives to the proposed action are not adequately considered, is required to alert the Staf f and Applicant to the specific inadequacies which give rise to the contention.
Applicant maintains that the Staf f and Applicant have met d2eir burden of providitg detailed information with respect to all consideration of alternatives.
Eowever, NRDC in responding to interrogatories has f ailed to specify, or indeed, sug-gest, what aspects of the various alternatives it believes were inadequately considered.
Thus Applicant maintains that NRDC has failed to meet its burden of specificity with tespect to this contention and accordingly it should be dismissed.
Inasmuch as NRDC 's ins tant Mo tion fo r Summary Disposition is premised upon this Contention, it should be denied.
4f/qr 206 IV.
CCNC:,USIONS From the foregoing, Applicant submits that NRDC's Motion for Su= mary Disposition of Contention #4 should be denied.
Further, Applicant submits that NRDC's Contention 4 presents no issue of law or material fact suitable for resclution in this proceeding, and, therefore requests taat the Board grant A,,plicant's previously filed Motion for Summary Disposition in this regard.
Respectfully submitted,
/
/6 c 496/
J.
Michael McGarry, II Of counsel:
William L.
Pocter, Esq.
Associate General Counsel Duke Power Company May 29, 1979 414 200
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UNITED STATES OF AMERICA
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U NUCLEAR REGULATORY CCMMISSION m
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f 6Z0 In the Matter of
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M DUK5 PCWER COMPANY
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Docket No. 70-2623 (Amendment to Materials
)
License SNM-1773 fcr Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
)
At McGuire Nuclear Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Natural Resources Defense Council's Mocion For Summary Disposition With Respect to NRDC, Contention Y," dated May 29, 1979, in the above captioned matter have been served upon the following by deposit in the United States mail this 29th day of May, 1979:
Marshall I. Miller, Esq.
Mr. Jesse L.
Riley Chairman, Atomic Safety and Pr es id en t Licensing Board Carolina Environmental Study C. S. Nuclear Regulatory Group Commission 854 Henley Place
~
Washing ton, D. C.
20555 Charlotte, North Carolina 28207 Dr. Emme th A.
Luebke Atomic Safety and Licensing Edward G.
K e tch e n, Esq.
Board Counsel for NRC Regulatory C. S. Nuclear Regulatory Staff Commission Of fice of the Executive Legal Washington, D.
C.
20555 Director U.
S. Nuclear Regulato ry Dr. Cadec 2.
Hand, Jr.
Commission Directer Washington, D.
C.
20555 Scdega Marine Laboratory cf California William L.
Porter, Esq.
Fest Office Sox 247 Associate General Counsel Sedega 3ay, California 94923 Duke Powe r Cor iny Post Office Box 22189 Charle:te, North Iarolina 28242 414 202 Shelley Elun, Esq.
Richard P.
Wilson 418 Law Bu ilding Assistant Attorney General 730 East Trade Street State of South Carolina Charlotte, North Carolina 2600 Bull Street 28202 Columbia, South Carolina 29201 Anthony Z.
Roisman, Esq.
Natural Resources Defense Chairman, Atomic Safety and Council Licensing Board Panel 917 15 th S tree t, N.W.
U. S.
Nuclear Regulatory Washington, D. C.
20005 Commission Washington, D.
C.
20555 Brenda Best Carolina Action Chairman, Atomic Safety and 1740 E.
Independence Blvd.
Licensing Appeal Board Charlotte, North Carolina U. S. Nuclear Regulatory 28205 Commiss io n Washington, D.
C.
20555 Mr. Geof f r ey Owen Little Davidson PIRG Mr. Chase R.
Stephen; P. O. Box 2501 Docketing and Service Section Davidson College Office of the Secretary Davidson, North Carolina U.
S.
Nuclear Regulatory 28036 Commission Washington, D.
C.
20555 y/ 'Tq. ;6}p!
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