ML19241A909
| ML19241A909 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 06/01/1979 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907110398 | |
| Download: ML19241A909 (12) | |
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06/01/79 p ff OL,1d UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING E0ARD In the Matter of
)
)
LOUISIANA POWER AND LIGliT COMPANY )
Docket No. 50-382
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(Waterford Steam Electric Statf or.,
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Unit 3)
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NRC STAFF'S POSITION ON UNSTIPb?.ATED CONTENTIONS OF SAVE OUR WETLANDS, INC., AND OYSTERSHELL ALLIANCE, INC.
I.
Introduction Pursuant to this Board's Order dated May 9, 1979, representatives of Save Our Wetlands, Inc., Oystershell Alliance, Inc. (Joint Petitioners), the applicant and the NRC Staff negotiated a stipulation regarding all but c o n'-
s tenti...s 8, 9, 10, 11, 12, 13, 14, and 22.
The Staff's position on these contentions is set forth below.
II.
Staff's Position on the Unstipulated Contentions A.
Requirements for Valid Contentions The Commission's Regulations, specifically 10 CFR R2.714(b), require that the contentions which a petitioner seeks to have litigated be filed along with the bases set forth with reasonabic specificity.
A contention must be rejected where:
(a) 1 constitutes an attack on applicable statutory require-ments; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought ta312 n rJ rd c
be; (d) it seeks to raise an issue which is not proper for adjudi-cation in the proceeding or does not apply to the facility
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in question; and 790711DS9g
. (e) it seek:, to raise an issue which is not concrete or litigabic.
Philadelphia Electric Co., et al. (Peach Bottom Atomic Power Station, Units 263), ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the basic requirement of 10 CFR !i2.714 is to assure that the contention in question does not suffer from any of the infirmities listed above. to establish sufficient foundation for the contention to warrant further inquiry of the subject matter in the proceeding, and to put the other parties sufficiently on notice so that they will know generally what they must defend against or oppose.
Peach Bottom, supra.
From the standpoint of basis, a detailing of the evidence which will be offered in support of the contention is unnecessary and an evidentiary foundation is not required.
Peach Bottom, supra; Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Unita 1&2), ALAB-130, 6 AEC 423, 426 (1973).
In examining con-tentions and the bases therefor to determine admissibility, a licensing board is not to reach the merits of the contentions.
Duke Power Co. (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528 (February 26, 1979); Peach Bottom, supra at 8 AEC 20; Grand Gulf, supra at 6 AEC 426.
In fact, the Appeal Board has recently implied that, where a contention is adequately specific and appears to contain the basis within the conteetion itself, no separate basis is required and the contention is admissible if it is not otherwise objectionable.
Oconee-McGuire, supra.
However, the Appeal Board has twice indicated that special care should be taken at the operating license stage, when a hearing is not mandatory, to assure that asserted contentions raise issues that are clearly open to adjudication.
Culf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-183, 312 201
. 7 AEC 222, 226 (1974) and Cincinnati Gas and Electric Company (William 11.
Zinner Nuclear Power Station), ALAB-305, 3 NRC 8,12 (1976).
In the instant proceeding, unstipulated contentions 8, 9, 10, 11, 12, 13, 14, and 22 must be examined in light of these requirements.
B.
Unstipulated Contentions Cop'.ent ion 8 Applicant has failed to properly evaluate the health 7
and environmental effects from existing industrial, petrochemical, manufacturing and background sources of pollution operating in combination with low-level radiation introduced into the environment by operation of the Waterford 3 facility.
The Staff opposes this contention on the ground that it lacks the requisite basis and specificity.
The Joint Petitioners have not indicated how the evaluation is deficient but merely indicate that the Applicant has failed to "propcrly evaluate".
Further, they have not set forth any basis for this contention.
There is no indication that the low levels of radiation released during normal operation of a nuclear plant, when combined with " existing industrial, petrochemical, manufacturing and background sources of pollution",
may cause harmful effects.
Contention 9 Applicant has failed to properly evaluate synergistic ef fects of low-level radiation in combination with known and suspected carcinogens such as halogenated hydrocarbons, other petrochemi als, body hormones, tobacco smoke and other similar substances in the environment, with regard to the follouing:
(a) 11uman populations which would be rendered more susceptible to cancer, heart disease, cardio-vascular and pulmonary diseases.
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(b) Animal and plant populations which will be adversely impacted because of environmental ctresses induced by these combinations of factors.
The Staff o; poses this contention en the ground that it lacks the requisite basis and specificity.
Joint Petitioners have not indicated how the Appli-cant's evaluation is deficient.
Further, the Joint Petitioners have failed to set forth any basis for their contention that low-level radiation from normal operation of a nuclear power plant, if combined with the alleged "suEpected carcinogens", w!'.1 adversely affect human, animal or plant popu-lations. Nor have they indicated the basis for their helief that "known and suspected carcinogens" will be present in the same geo;raphical areas that might be subj ect to low level radiation from the facility.
Contentions 10 and 11 10.
Applicant has failed to properly evaluate radiation emissions ehich will be created W spent fuel storage due to the underestimation of amounts of spent fuel which will be held in storage during the useful life of the facility.
11.
Applicant has failed to properly evaluate radiation emissions which will be created by spent fuel storage by underestimating the amounts of spent fuel which will be processed, handled and stored baseI upon underestimation of the quantity of such products which will be stored on site at the facility.
The Staff opposes these contentions on the ground that they lack the requisite basis and specificity.
The Intervenor has not Indicated how the Applicant has failed to estimate the amount of spent fuel that will be held in storage, processed or handled during the useful life of the facility.
Furthermore, the operating license, if e
-5 Issued, will specify the amount of spent fuel which is authorized to be stored at Waterford, Unit 3.
This authorized amount is based upon the storage amount requested in the application, the subject of the present proceeding.
Any additional storage of spent fuel can only be accomplished by amendment to the operating license.
This would be a 1fcensing action connletely separate from the present procceding.
Since the present applien+4^- Joes not contain the request for this additional storage (processing ant handling) this contention raises issues that are outside the, cope of die present pro-
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cceding.
The Applicant indicated that the design of Waterford, Unit 3 provides for approximately 15 years of on-site storage capability (Tr. 80).
The Joint Petitioners have not set forth any basis for the assumption in their con-tention that the only option available to the Applicant beyond 15 years of plant operation is providing additional storage at Waterford, Unit 3 for spent fuel. This is clearly sufficient time for the Applicant to find means other than additional storage at Waterford, Unit 3 for storage of spent fuel.
This is especially true in light of the fact that the U.S. Department of Energy has announced, in its " Spent Nuclear Fuel" policy, that it is presently considering the utilization of existing commercial f acilities and construction of new commercial and federal facilitics for interim storage and as reposi-tories for storage in perpetuity.
U.S. Department of Energy Policy Statencnt on Spent Nuclear Fuel, released October 18, 1977.
It was further indicated by a spokesman for the U.S. Department of Energy, before the Committee on Interior and Insular Affairs, llouse of Representatives, that storage at such
, existing facilities vaald be available as early as 1980.
Statement of Worth Bateman, Acting Deputy Assistaat Secretary for Energy Technology, Department
)k.
- of Energy, before the Committee on Interior and Insular Affairs. House of Representatives, dated January 26, 1979.
Contention 12 Applicant has ' ailed to properly evaluate risks to humans caesed by transportation of spent fuel and radioactive nuclear wastes into and/or through the Greater Metropol-itan New Orleans Area as a result of the following:
(a) Applicant's lack of adequate details regarding proposals for transportation of such materials.
(b) App'ficant's failure to accurately evaluate radiation releases resulting from such activity.
The Staff believes that this contention is vague and therefore fails to satisfy the specificity requirements of 10 CFR M2.714.
It is not clear whether the concern is environmental or safety related.
To the extent this contention raises concerns regarding the environmental impact of transportation of fuel and wastes to and from Waterford, Unit 3, the Staff opposes this contention because it challenges the Commission Regulation which sets forth the environmental impacts for such transportation (10 CFR M51.20, Table S-4).
This type of challenge to a Commission regulation is barred as a matter of law.
Metropolitan Edison Co.
(Three Mile Island Nuclear Stat. ion. Unit 2), ALAB-456, 7 NRC 63, 65 (1978).
Under 10 CFR 62.758, the Commission has withheld jurisdiction from Licensing Boards to entertain attacks on the validity of Commission regulations in indi-vidual licensing proceedings except in "special circumstances." Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 and 2),
ALAB-218, 8 AEC 79, 88-89 (1974).
The Joint Petitioners have not alleged any 4
particularized "special circuristances" that identify how the values in Table 9
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. S-4 would not serve the purpose for which they were adopted with respect to Waterford, Unit 3.
This contention should, therefore, he rejected.
To the extent this contention raises a safety concern it must also fail.
The area of concern, the lack of " details regarding proposals for transportation of such materials [ spent fuel and radioactive nuclear wastes]" through the New Orleans area, is not regulated by the NRC but is the responsibility of the Department of Transportation.
Memorandum of Understanding:
Transportation of Radioactive Materials, U.S. Department of Transportation - U.S. Atomic Energy Commission, al.C., 03 Fed. Reg. 8466 (April 2,19, Consequently, from a safety standpoint, this contention raises an issue which is not proper for adjudication in this proceeding.
Contention 13 s
Applicant has failed to appropriately evaluate the health, safety and environmental risks which result from storage at the Waterford 3 site for an extended and as yet undeter-mined length of time, of spent nuclear fuel materials be-cause of the lack of an acceptable and technologically feasible and reasonable means for permanent and interim storage of high-level radioactive wastes and spent fuel materials; which thus renders applicant's interim storage as de facto permanent storage.
No basis whatsoever is set forth in support of this contention.
In point of fact, this contention directly contradicts the Commission's implicit finding in July 1977 of " reasonable assurance that metbods of safe permanent disposal of high-level wastes can be availabic when needed".
42 Fed. Reg. 34391 at 34393, July 5, 1977 (denial of petition for rulemaking of Natural Resources Defense Council).
This dctermination was upheld in NRDC v. NRC, 582 F.2d 166 (2d Cir. 1978), and has been followed by the Appeal Board ;n several instances where it was contended that licensing actions should be deferred pending a final solution to the waste disposal problem.
See Portland General Electric Co. et al. (Trojan Nuclear Plant), ALAB-531, Slip Op. pp. 8-9
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. (March 21, 1979); Northern States Power Co. et al. (Prairie Island Nuclear Generating Plant, Units 162); and Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Station), ALAB-455, 7 NRC 41, 49-50 (1978).1/
- Thus, this contention appears to challenge established Commission regulatory policy and should, on that ground, be rejected without prejudice.
Should the Commis-sion change its policy on this matter, of course, that would constitute " good cause" for raising this contention at that time.
Furthermore, storage of spent fuel at Waterford, Unit 3 cannot go beyond the period of time requested by the than 40 years.2/ The scope Applicant in its application, which must be less
-1/ Recently, the Court of Appeals for the D.C.
Circuit, Minnesota v. NRC, et al_., No. 78-1269 and New England Coalition on Nuclear Pollution v. NRC, et al., No. 78-2032 (D.C. Cir. May 23, 1979) issued its decision on the appeal of ALAB-455 brought before it.
In its decision, the Court of Appeals addressed the question of the " uncertainty about ~the prospects for developing and implementing safe methods for the ultimate disposal
-- or even long-term storage -- of highly toxic radioactive wastes created in the process of nuclear power generation" (Slip Op. at 3) in the framework of determining to stay or set aside amendments to two nuclear reactors that would allow modifications for expansion of their spent fuel storage pools.
The Court of Appeels decided not to stay or set aside the two license amendments taking full cognizance of the fact that the Appeal Board below had relied oa the Commission's finding of
" reasonable assurance" (Id. at 8).
Citing Vermont Yankee v.
NR"C_, 435 U.S. 519 (1978) for the proposition that if may inc,uire into the basis of the Commission's finding of reaonsabic assurance, the Court of Aopeals remanded "the balance of these cases" to the Commission for
" clarification and consideration in the light of a related proceeding and other current developments" (Id., at 3 and 16).
While the Court of Appeals' decision requires that the Commission clarify its finding in its denial of a petition for rulemaking by the National Resources Defense Council (42 Fed. Reg. 34391, 34393, July 5, 1977) of " reason-able assurance that methods of safe permanent disposal of high-level wastes can be available wheu needed", the Court expressly rejected a claim that the natter need be considered in it.dividual licensing cases.
The Commission has not indicated any change in its position.
In these circumstances, the Staff believes itself bound to follow the current guidance of the Commission.
Should the Commission issue any policy statement or guidance in response to the recent Court decision, the Staff, in compliance with the reporting requirement of McGuire (Duke Power Co. (William B. McGuire Nuclear Station, Units ] and 2), ALAB-143, 6 AEC 623, 625-26 (1973)), will promptly furnish the information to the Board and the parties.
-2/ Atomic Energy Act of 1954, as amended, 6103(c); see also 10 CFR H50.51.
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of the present proceeding is cherefore limited in its consideration of environmental and safety consequences of storage of spent foci at Waterford, Unit 3 to this specified period of time.
Any additional period of storage at Waterford. Unit 3 could only be permitted by submission by the applicant of an appropriate amendment.
Such an amendment would then be the subject for another entirely separate licensing action.
Contention 14 f ailed to properly evaluate the present Applicant has inability to dispose of spent fuel assemblies, which will ultimately result in the necessity of increased expansion of suent fuel storage facilities at the Waterford 3 s!.te.
The Staff opposes this contention on the ground that it is vague and therefore fails to satisfy the specificity requirements of 10 CFR 92.714 and that it also lacks the requisite basis.
It is not clear whether Joint Petitioners are raising an issue as to ultimate storage of spent fuel or an issue of expansion of the spent fuel pool to accept additional spent fuel assemblies beyond the pools current capacity.
If the issue attempted to be raised relates to avail-ability of ultimate storage facilities, as noted above, in the Staff's response to contention 13, the Commission's regulatory policy regarding ultimate disposal of wastes is that there is " reasonable assurance that methods of safe permanent disposal of high-level wastes can be availabic when needed" (42 Fed. Reg. 3491, at 34393, July 5, 1977). While it does not necessarily follow from this Commission policy statement that interim storage will always be available during the operating lives of nuclear reactors to assure uninterrupted operation, the Joint Petitioners have not given any basis to support cheir assumption that, due to the shortage of storage during the operating life b\\
. of k'aterford, Unit 3, expansion will be necessitated.
In essence, this con-tention is based upon pure speculation.
If the issue attempted to be raised relates to expnasion of the capacity of the spent fuel pool, as noted above in the Staff response to contentions 10 and 11, expansion of a fuel storage pool is a matter beyond the scope of this proceeding.
Contention 22 V
Applicant has failed to discover, acknowledge, report or remedy defects in materials, construction and work-manship such as improperly poured and set concrete and concrete poured without required reinforcement during the fabrication of the containment vessel, (reactors vessel) and/or related integral systems.
The Staff opposes this contention on the ground that it lacks the requisite basis and specificity.
The contention does not specify the nature of the defects othe' than stating that concrete was " improper 1j poured and set" and that cone. e :e was poured without " required reinforcement".
Moreover, there has been a complete failure to indicate where these alleged defects occurred other than a vague reference to "the containment vessel (reactor vessel),
and/or related integral systems".
The only basis for the contention was noted by counsel for the Intervenors during the April 26, 1979 prehearing conference (Tr. 102, 3).
The sole basis for the contention was stated to be a newspaper article appearing in the New Orleans " States Item" on April 3, 1979.
The Staff does not believe that this article supplies the necessary basis to support a safety 312 20'9
,,,. contention.3/ Furthermore, neither the article nor the proponent (Tr. 105) of the contention Identified a single individual who would be able to come forward and be confronted on the accuracy of the statements regarding the alleged defects.
As the Appeal Board noted in Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit No. 2) ALAB-525, NRC Slip. Op. at 6 (February 1, 1979):
It is to be hoped that we are long past that sorry day in this Nation's history when reliance was placed upon statements assertedly made by anonymous informants unwilling (b come for-ward and be confronted on the accuracy of those statements.
C.
Conclusion s
For the reasons set forth above, the NRC Staff believes that contentions 8, 9, 10, 11, 12, 13, 14, and 22 should be rejected.
Respectfully submitted, Qfgra:q, W &l1 e
Ifenry J. McGurren Counsei'for NRC Staff Dated at Bethesda, Maryland this 1st day of June, 1979
-3/ The safety matters raised in this article concerning Waterford, Unit 3 were investigated by the NRC Office of Inspection and Enforcement and found to provide insufficient bases for further investigation.
See Memorandum of R.E. Hall, Chief, Engineering Support Section, Nuclear Regulatory Commission, Office of Inspection and Enforcement, dated April 4,1979, attached to a letter dated May 30, 1979 from Henry J.
McGurren, Counsel for NRC Staf f, to this Board.
3 'i 2 2i0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.
BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD In th Matter of
)
)
LOUIS 1ANA POWER AND LIGilT COMPANY )
Docket No. 50-382
)
(Waterford Steam Electric Station, )
Unit 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S POSITION ON UNSTIPULATED CON-TENTIONS OF SAVL OUR WETLANDS, INC., AhD OYSTERSilELL ALLIANCE, INC." in the above-captioned proceeding have been served on the following by deposit in indicated by an astUrisk, through the United States mail, first class, or, as deposit in the Nuclear Regulatory Commission's internal rail system, this 1st day of June, 1979:
Sheldon J. Wolfe, Esq., Chairman
- Mr. Luke Fontana Atomic Safety and Licensing Board 824 Esplanade Avenue U.S. Nuclear Regulatory Commission New Orleans, LA 70116 Washington, DC 20555 Mr. M.
Stevenson Dr. Walter H. Jordan Monroe & Lemann 881 West Outer Drive 1424 Whitney Building Oak Ridge, TN 37830 New Orleans, LA 70130 Dr. Ilarry Foreman, Director Atomic Safety and Licensing Board Box 395, Mayo Panel
- University of Minnesota U.S. Nuclear Regulatory Commission Minneapolis, MN 55455 Washington, DC 20555 E. Blake, Esq.
Atomic Safety and Licensing Appeal George F. Troc bridge, Esq.
Panel (5)*
Shaw, Pittman, Potts & Trowbridge U.S. Nucelar Regulatory Commission 1800 M Street, N.W.
Washington, DC 20555 Washington, DC 20036 Docketing and Service Section (4)*
Mr. Stephen M. Irving Office of the Secretary One American P_ ace, Suite 1601 U.S. Nuclear Regulatory Commission Baton Rouge, LA 70825 Washington, DC 20555 Mr. Lyman L. Jones, Jr.
Suite 910 - Security Homestead Building 4900 Veterans Memoral Blvd.
Metairie, LA 70002 h
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'W llen r >[,Jj McGurren Counsel for NRC Staff q
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