ML19256A755
| ML19256A755 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 12/22/1978 |
| From: | Hastings W PORTLAND GENERAL ELECTRIC CO. |
| To: | |
| References | |
| NUDOCS 7901160084 | |
| Download: ML19256A755 (21) | |
Text
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UUCLEAR REGULATCRY CO:iMISSION
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Docket 50-344 (Spent
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Cencral Electric Company
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Fuel Pool Modification,)-
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December 22, 1978
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CERTIFICA"' OF FERVIC7 I hael'y certify that.'.pplicants' Lrief in Oppoaitica to Intervanm.
Susan :1. Gat sett's Enceptienn hcs been served on tae folleuing by de pos it in the nited Statec nail firc: cls s, this 22n:i d.y of Decc. bct, 1970 Lheldon J. 1:olfe, C.:q., Cheir r.an Atomic E.cfaty cod Licancir, % ri 22ncl Atcaic Scfety aJ Licensing E c r.r d U. S.10cie:r Ra?ulet ey C;=h :ica U. G Nucler
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9 Table of Contents Page 1.
Introduction 1
II.
IS8ues 7
Ill. Discussion 7
A.
Did the Licensing Board err in declining to make specific findings on alternatives?.....
7 B.
Did the Licensing Board err in its failure to make any finding that the Environmental Impact Appraisal fully or adequately considered alter-natives to the Proposed Modification?......
11 C.
Did the Licensing Board err in applying the five-factor test set forth in 40 Fed. Reg. 428017 14 17.
Conclusion 16
-i-
Table of Authorities Cases Page City of New Haven vs Chandler 446 F. Supp. 925 (D. C.,
D. Conn. 1978) 9 Detroit Edison Co. (E. Fermi Power Plant, Unit 2)
LBP 78-11, 7 NRC 381, 393 (1978) 10 Envircumental Defense Fund Inc. vs Coros of Engineers 492 F. 2d 1123 (5th Cir. 1974) 9 Florida Power & Light Co. (St. Lucie Nuclear Power Plant) ALA3-335, NRCI 76/6 830 (1976) 17 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2) ALAB-280, 2 NRC 3 (1975)
G,13 Northern States Power Co. (Prairie Island Nuclear Generating Plant. Units 1 and 2) ALAS-455, 7 NRC 41 (1978) 10,13,15 NRDC vs Morton 458 F. 2d 827 (D. C. Cir. 1972) 13 Pacific Cas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2) ALA3-254, 8 AEC 1184 (1975) 16 Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2) ALA3-422, 5 NRC ___ (1977) 11 Sierra Club vs Morton 510 F. 2d 813 (5th Cir. 1975) 7 Tennessee Vallev Authority (Hartsville Nuclear Plant, Units 1A, 2A, 13, 23) ALA3-367, NRC 1-77/1___
(January 25, 1977)
Trinity Eoiscocal School Corporation vs Romnev 523 F. 2d 88 (2nd Cir. 1975) 8 Vermont Yankee Nuclear Power Corn. (Vermont Yankee Nuclear Power Station) ALAB-245, 8 AEC 873 (1974) 10 Vermont Yankee Nuclear Power Coro. vs NRDC,
___ U. S. __,, 55 L.'Ed. 2d 460, 98 S. Ct. 1197.
6 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2) ALAB-78, 5 AEC 319 (1972) 16 Statutes National Environmental Policy Act:
42 USC 4332(E) 8,9
-ii-
Table of Authorities Page Regulation 36 Fed. Reg. 7724 9
40 Fed. Reg. 42801..................
1,4,7,14 10 CFR 2.760.
11
-iii-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY A3D LICENSING APPEAL BOARD In the Matter of Portland
)
Docket No. 50-344 (Spent General Electric Company
)
Fuel Pool Modification) et al., (Trojan Nuclear
)
December 22, 1978 Plant)
)
APPLICANTS' BRIEF IN CPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS INTRODUCTION Intervenor Susan M. Garrect has appealed frem a Licensing Board decision rendered October 5,1978, on an applications for anendment of the Trojan Nuclear Plant Operating License which allowed expansion of the capacity of the Trojan spent fuel pcol. This expansion would be accomplished by removal and disposal of the existing fuel storage racks in the Trojan spent fuel pool and the substituion of new racks.
The rack subs titution would increase the storage capacity of the spent fuel pool from 280 to 651 spent fuel assenblies.
Intervenor Garrett (Intervenor) attacks the Licensing Board's decision
-on the basis that the Licens ing Board f ailed to make findings on issues relating to " alternatives" thereby violating the Commission's regulations, the Adminis trative Procedures Act, the National Environmental Policy Act, and hence Jenying her due process of law.
Intervenor asserts the NRC staff's Environmental Impact Appraisal is inadequate.
Finally, Intervenor argues the five-f actor test of 40 Fed. Reg. 42801 has not been met.
1 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT'S FXCEPTIONS
There is a material difference between the Intervenor's contentions raised before the Licensing Board, the Exceptions taken from the Licensing Board's initial decision, and the argument now made in this appeal.
Intervenor's brief asserts that her contentions Al and A2 basically argue
"...that reduced power output from the Trojan Plant would result in slower generation of spent fuel, slower filling of existing storage facilities and a delayed need for the modification such that offsite storage would be available before any expansion of storage capacity would be required.
Such reduced power output would not re sult in any harm whatever to appli-cants' custemers, since hydro power is as cheap as--or cheaper than--
Trojan power is available to private Northwest utilities for about six months out of an average water year."
(Intervenor Garrett 3r. p.
1)
Her present assertions are not accurate. To illustrate, Intervenor's Contention Al is as follows:
"The Licensee has not provided an adecuate analysis of alternatives to the orocosed spent fuel cool modifications.
Soecifically:
(a) The Licensee has not adequately considered the com-parative costs and benefits of such alternatives as the following:
storage at a commercial facility; storage at the Allied General Nuclear Services' reprocessing plant; storage at a federal military facility; storage at another nuclear plant; storage of four regions of spent fuel in the existing unmodified Trojan spent fuel pool without retaining a three-region reserve capacity; (b)
The Licensee has not adequately considered alterna-tives which premature expansion of spent fuel pool storage capacity would tend to significantly preclude or foreclose such_as the above and the following:
storage at feder:1 retrievable surface storage cites; the use and premotion of measures such as conservation and development of non-nuclear power sources, which would allow reactor shv:down or reduced cover output from Troian and a :ensecuent reduction in the rate of generation of scent fuel.
2 - APPLICANTS' 3RIEF IN OPPOSITION TO INTERVENOR SUSAN M. GABRETT' S EXCEPTIONS
Such failure to adequately consider alternatives violates the National Environmental Policy Act.
In addition, foreclosure of development or explor-ation of such alternatives would tend to signifi-cantly affect other licensing actions designed to aneliorate a possible shortage of spent fuel storage capacity."
Intervenor's Contention A2 is as follows:
"The exolicity basis for the Licensee's aoolication for expanded scent fuel storage is that of f-site storage will not be available when needed. This "need for expanded storage capacity" assumption jLs speculative. Since (1) the Licensee can store spent fuel in existing unmodified f acilities (with-out retaining reserve capacity) until 1982, and (2) off-site storage could be available by 1982, the Licensee has not adequatelv demonstrated a ore-sent or future need for exoanded storage capacity which would justify the economic and environ = ental risks and costs which will be incurred as a result of premature modification of the existing spent fuel pool. Moreover, for these same reasons, the Licensee has not demonstrated that " substantial harm to the oublic interest" would result if aooroval of the orocosed modification were to be deleved until after the issuance of the Generic Environmental I=oact Statement now being orecared by the Commission." (Emphasis supplied.) (Initial Decision p. 51.)
Intervenor's present position before this Appeal Board is made up of ecmbining a bit of the lead-in paragraph of Contention Al with material taken out of context frem Contention Al(a) to which has been spliced va:ious phrases taken out of context frem Intervenor Contention A2.
For the Appeal Board's convenience, we have underlined above the manner ia which Intervenor has put together her present positisn.
Whatever her present position is, it is obvious this proceeding is not considering any contention or position on Ms. Garrett's part that findings are required in connection with the following alternatives suggested by her:
(a) storage at a eccmercial facility; (b) storage at the Allied General Nuclear Services reprocessing plant; (c) storage 3 - APPLICANTS' 3RIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARFITT'S EXCEPTIONS
at a federal military facility; (d) storage at another nuclear plant; (e) storage of four regions of spent fuel in the existing unmodified Trojan spent fuel pool without retaining a three-region reserve capacity; (f) storage at federal retrievable surface storage sites; (g) the use and promotion of measures such as conservation and development of non-nuclear power sources, which would allow reactor shut-down or reduce power output from Trojan and a consequent reduction in the rate of generation of spent fuel.
In addition, this proceeding should not consider Garrett Contention A2 because, taken as a whole, it suggests the Licensee can store spent fuel in the existing umsodified facility until of f-site storage is available and therefore the five-f actor test set forth in 40 Fed. Reg. 42801 has not been met.
Although Intervenor takes Exceptions to the Licensing Board's ruling on the five-f actor test, there is nothing in the Exceptions of Brief which bears any resemblance to Contention A2.
Likewise, Intervenor has changed position in the Exceptions taken to the Liceasing Board's Initial Decision and the position now advocated in the brief on appeal. The brief lumps the Exceptions together, treating them as one.
Thus, Intervo 2or says Exceptions 9 through 12 relate to the failure of the Licensing Board to eske findings on alternatives and Excep-tions 1 through 8 relate to the adequacy of the Environmental Impact Appraisal prepared by the NRC staff. We find sece problem with this.
For example, in Exception 9, Ms. Garrett complains about the Licensing Board's treatment of all alternative Contentions "as a group".
This argument is never sentioned in her brief on appeal.
In Exceptions 10 and 12, Ms. Garrett argues that the Licensing Board made no specific 4 - APPLICAN1'S' BRIEF IN opt 00ITION TO INTERVENOR SUSAN M. GARRElf'S EXCEPTIONS
findings regarding her Contentica Al(b) and in Exception 12 she says that the Board. made no specific findings regarding her Contention A2.
Yet as her brief demonstrates, we are no longer dealing with her Conten-tion Al or her Contention A2.
We are now dealing with a hybrid she has manufactured from a part of Contention Al and a bit of Contention A2.
On appeal, Intervenor for the first tise advances the argument in her brief without prior warning by way of Contentica or Exception that the NRC Staff's Environmental Impact Appraisal is inadequate because it was prepared "...primarily by nuclear engineers with little training in environmental or social sciences or economics", that the Staff " relied primarily on information frem the licensee..." that "... consideration of other alternatives in the EIA was cursory, superficial, pro forma, and tailored specifically to the Trojan site...", "...that the cost-benefit
' balance'..." is "... inadequate; the only costs considered are financial costs, and the only benefit considered is the generation of electricity
... that contrary to NEPA requirements, [the] EIA did not consider all relevant factors affecting the agency's decision; 'a hard look' was not taken--the evaluation was pro forma at best; the study was not objecti 3; the NRC began with its conclusion and then worked backward to justify their conclusion; the discussion of alternatives was short, supe rfic ial, and did not constitute the ' study, development, and description' r2 quired by NEPA; no systematic interdisciplinary approach was usec as required by NEPA... indirect effects of the modification were ignored; there was no evaluation to the ' fullest possible extent'" and finally the NRC Staff did not comply with its own regulations requiring "...at least
' careful consideration'". None of these mt;ters were brougt.: to the 5 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
attention of the Licensing Board.
No proper, timely Exception was taken with respect to any of them.
Yet, Ms. Carrett desires to have these matters now considered for the first tbne on appeal.
We find nothing in Ms. Garrett's Brief even remotely discussing her Exception 13.
We are at a loss in determining where in her Brief she discusses Exceptions 1, 2, and 8 except for the one line assertion that cumulative impacts were ignored at the bottom of the first paragraph on page 3 thereof.
The reference to support this is to her discovery interrogatories, matters beyond the record made before the Licensing Board.
Exception 14 relates to the Board's su= mary of the alternative evidence and since the Licensing Board found it unnecessary to consider Alternatives, it has no bearing on thia Appeal.
It is now a well-settled principle of administrative lav that it is
"... incumbent upon Intervenors who wish to partici-pate to structure their participation so that it is meaningful, so that it alerts the agency to the Intervenor's position and Contentions...[and this]
...is especially true when the Intervenors are requesting the Agency to embark upon an exploration of uncharted territory..."
"...indeed, adminis trative proceedings should not be a game or a forum to engage in unjustified obstruc-tion by making cryptic and obscure references to mattcrs that 'ought to be' considered and then, after failing to do more to bring the matter to the Agency's attention, seek to have that Agency's deter-mination vacated on the ground that the Agency failed to consider matters ' forcefully presented'." Vermont Yankee Nuclear Power Corn. vs NRDC, US 55 L. Ed.
2d 460, 98 S. Ct. 1197.
These fundamental rules of fairness have been consistently applied by this Appeal Board.
In florida Power & Lizht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALA3-280, 2 NRC 3 (1975) this Board held that it was not required to review Exceptions where no proposed findings were 6 - APELICANTS' 3RIEF IN OPPOSITION TO INTER 7ENOR SUSAN M. GARRE""I' S EXCEPTIONS
filed on the issue with respect to which the Exceptions were taken.
In Tennessee Vallev Authority (Hartsville Nuclear Plant, Units lA, 2A, 13, 23), ALAB-367, NRC I-77/1- (January 25, 1977) this Board held that Excep-tions not briefed are to be disregarded in the consideration of any appeal.
In applying these fundamental principles of fairness, Ms. Garrett should not be permitted to raise for the first time matters she or some other party did not present to the Licensing Board, matters to which no Exception was taken, matters not briefed, and matters briefed but not appearing in the record made before the Licensing Board. As such, this appeal should be confined to the following questions :
(a) Did th. Licensing Board err when it decliaed to consider various alternatives (b) Did the Licensing Board err in its failure to make any finding that the Environ =eutal Lapact Appraisal fully or adequately considered alter-natives to the proposed modification?
(c) Did the Licensing Board err in applying the five-factor tast set forth in 40 Fed. Reg. 4230l?
II DID TEE LICENSING BOARD ERR IN DECLINING TO MAKE SPECIFIC FINDINGS ON ALTERNATIVES?
In its Initial Decision of October i,1978, the Licensing Board found:
"It is not necessary, however, to choose among alter-natives or to predict needs on the basis of the pre-sent evidence.
In cur findings, supra, we have determini. that the adverse environmental impacts of this license enendment will be negligibly small.
Clearly, if the adverse impacts of the proposed sction are negligible, the impacts of any alternt-tive must be equal or greater, and it has been he:d that 'an alternative which would result in sisils-or greater harm need not be discussed'." (Sierra Club vs Morton, 510 F. 2d 813, 825 (5th Cir. 1975)
(Initial decisica, p. 63) 7 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
Intervenor Garrett suggests in her brief that independently of the Licensing Board's obligation and the NRC staf f's duty under Sec-tion 102(2)(C)(iii) of the National Environmental Policy Act to prepare an Environmental Impact Statement or an Environmental Lspact Appraisal, the NRC staf f owe? an obligation to the State of Oregon and to the other Intervenors to consider alternatives under Section 102(2)(D) of the National Environmental Policy Act.
Section 102(2)(D) (now 42 USC 4332 (E)] requries all agencies of the federal government to
" study, develop, and cescribe appropriate alterna-tives to recom=end courses of action in any proposal which involves unresolved conflicts concerning alter-native uses of available resources."
Interveuor Garrett suggests that even though an environmental impact statement is not required, the Board was required to make the findings on all of the alternative Contentions on the basis of Section 102(2)(D).
She is in error.
Section 102(2)(D) does not operate in a vacuum.
The clear language of the scatute does not require a study of any and all alternatives under all circumstances, but only those : elating to pro-posals which involve unrasolved conflicts concerning alternative uses of available resources.
In Trinity Eoiscooal School Cornoration vs Romney, 523 F. 2d '86 (2d Cir. 1975) thn 3econd Circuit was required to give meaning to 102(2)(D) and it found that language to mean:
"The statute states in board language that alter-natives must be considered with respect to 'any proposal which involves unresolved conflicts con-cerning alternative uses of available resources'.
Although this language might conceivably encompass an almost limitless range, we need not define its outer limits, since we are satisfied that where (as here] the objective of a major federal project can be achieved in one of two or more ways that 8 - APPLICANTS' BRIEF IN CPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
will have differing Onpacts on the environment, the responsible agent is required to study, develop, and describe each alternative for appropriate consideration."
As the above quotation notes, Section 102(2)(D) is trigge*
by major federal action which impacts the environment.
This is consistent with the regulations of the Council on Environment &l Quality. The appli-cable guidelines set forth in 36 Fed. Reg. 7724 at 7725 states that:
"A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects is essential."
The case law construing Section 102(2)(D) indicates some inpact on the environment because the proonsal must occur befss: any study of alternative proposals is required.
See Environ = ental Defense Fund Inc.
vs Coros of Engineers, 492 F. 2d 1123 (5th Cir. 1974).
" Clearly, Section 102(2)(D) is supplemental to and more extensive in ita commands than the requirement of 102(2)(C)(iii).
It was intended to emphasize an i=portant part of NEPA's theme that all change was no progress and to insist that no major federal project should be undertaken withouc intense con-sideration of other more ecologically sound courses o f act ion...".
See also City of New Haven vs Chandler 446 F.
Supp. 925 (D.C., O.
Ct a.
1978).
"Although the agency's duty to consider alternatives under 14332(2)'E) is independent of its duty to file and EIS, it must be looked at in relation to the nature of the proposed project, including its estimated environmental Lapact."
City of New Haven vs Chandler would appe tr to control here, for there the agency failed to make a study of certain alternativss suggested to be reasonable and feasible and there the Court found no violation of 102(2)(D) existed because the environmental impact of the proposed pro-ject was insignificant.
9 - APPLICANT" BRIEF IN CPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
The Licensing Board found and there is no argument in the record to the contrary that "The adverse enviromnental impacts of this license amendment will be neg'.igibly small."
(Initial Decisio, p. 65)
As such the Board was not required to study, develop, and describe in the context of the Intervenors' Contentions alternatives to the proposed action here under consideration.
Furthermore, the present proceeding is not a construction or operat-ing license proceeding.
It is a proceeding to secure an amendment of an operating license and as such its scope is strictly limited. Ver=ont Yankee Nuclear Power Corp.
(Ver=ont Yankee Nuclear Power Station)
ALAS 245, 3 AEC 873 (1974). Nothing in the National Environmental Policy Act dictates that in an amendment proceeding ground need to be replowed on environmental inpacts and alternatives considered in the original licensing proceedings. Rathar, in such proceedings all tbac need be undertaken is a consideration of whether the Amendment itself will bring about significant environmental consequences beyond those previously assessed.
Northern States Power Comoany (Prairie Island Nuclear Generating Plant, United 1 and 2) ALA3 455,, NRC 41, 46, n. 4 (1978); Detroit Edison Co. (E. Fermi Power Plant, Unit 2) L3P 78-11, 7 NRC 381, 393 (1978).
This is exactly what the Licensing Board did. As such, all Intervenor Conten-tions on Alternatives miss the boat. Oregon concedes that " based upon the record in this case...the site-specific environmental impacts of the Trojan modification are insignificant." (Initial Decision, p. 57)
Inter-venor Garrect does not discute this in her brief. Her argument on environ-mental impacts is confined to her previously m(ntioned one-line assertion 10 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
relating to cumulative impacts based on matters outside the present record (Garrett Br., p. 5).
Without any substantive attack on whether the environmental impact has in any way changed from that originally assessed, the Intervenors collectively want to argue alternatives such as Ms. Garrett's desire to reargue determinations relating "need for povar" made in the initial licensing decisions.
This is impermis sible in view of their failure co establish any change on account of the pro-posed Amendment to the environ = ental impacts originally assessed.
We recognize the requirement that a Licensing Board is required to clearly delineate the basis for its initial decis.on and that it is t
the responsibility of the Licensing Board to sufficiently inform a party of the disposition of his or her Contentions. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2) ALAB-422, 5 NRC (1977).
In the present proceeding, the Licensing Board told the psrties exactly how it has elected to dispose of the various alternative Conten-tionc. It found as a =atter of law that it need not consider them because c f the lack of significant environmental impact of the proposal.
This clearly complies with the dictates of this Appeal Board in Seabrook as above noted, the Ccemission's regulations in 10 CFR 2.760, the dictates of the Federal Adminis trative Procedures Act, the National Environmental Policy Act, and concepts of procedural due process.
III DID THE LICENSING BOARD ERR IN ITS FAILURE TO MAKE ANY FINDING THAT THE ENVIRONMENTAL IMPACT APPRAISAL OR ADEQUATELY CONSIDERED ALTERNATIVES TO THE PROPOSED MODIFICATION?
Ms. Garrett now makes a series of Assertions relating to the pre-paration and adequacy of the NRC Staff's Environnental Impact Appraisal.
11 - APPLICANTS' BRIEF IN CPPOSITION TO INTERVENOR SUSAN M. GAARETT'S EXCEPTIONS
None of her Cententions nor those of any of the parties attacked the matters she now seeks to raise.
There is nothing in the Proposed Findings of Fact' submitted by Ms. Garrett suggesting the Environmental Espact Appraisal was improperly or inadequately prepared in violation of the Commission's regulations and the requirements of the National Environ-mental Policy Act.
The only reference in Ms. Garrett's Findings to the Environmental Impact Appraisal is as follows:
"When it prepared the EIA and evaluated the modili-cation, the NRC Staff was totally unaware that any replacement hydro was available to PGE."
(Garrett's Proposed Findings of Fact and Conclusions of Law,
- p. 2)
The only notice given in her Exceptions to the Licensing Board's Initial Decision that Ms. Garrett felt the Environmental Impact Appraisal was in any way inadequate is found in Exception 3 and that relates to her assertion that the Licensing Board had failed to make.an-; finding that the Environmental Impact Appraisal fully or adequately considered alternatives.
Now, however, and for the first time on appeal we are faced with a flurry of assertions and objections to the adec uncy of the Environmental Impact Appraisal such as the Environmental Impact Appraisal was prepared by nuclear engineers with little training in environmental or social or econcmics, that the NRC Staff relied primarily on informa-tion from the licensee, that the NRC Staff made little or no independent analysis of the licensee's information, that alternatives were not ade-quately discussed, that the cost-benefit balance is inadequate because it only considers financial costs, the only benefit considered is the generation of electricity, and so on.
(Garrett 3r. p. 4-3) 12 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR,
SUSAN M. GARRETT'S EXCEPTIONS
~
It is apparent that the dictates of Florida Power and L12ht Co.
(St. Lucie Nuclear Power Plant, Unit 2), supra, should be here applied.
The only conceivable matter relating to the adequacy of the Environmental Impact Appraisal which is properly before the Appeal Board is Garrett Exception 3 relating to the necessity of the Licensing Board making a finding on alternatives discussed in the Environmental Impact Appraisal.
For the reasons suggested in earlier portions of this brief, no finding was necessary, and hence no finding is required.
Turning to the matters set forth in the Garrett brief under the title, "II.
Exceptions 1 through 8:
Inadequate EIA; Need for EIS", it is first obvious that the " possibility of energy conservation" need not have been discussed by the Staff. As noted previously, this is an Amendment Proceeding and the very same argument that Ms. Garrett now makes was made and rejected in Northern States Dover Company (Prairie Island Nuclear Generatir Plant, Units 1 and
.1, supra.
2 Ms. Garrett goes on to claim that the NRC Staff never considered her alternative of deferring the expansion of the storage pool, reducing Trojan's power output, and replacing part of such output with hydra power.
(Garrett 3r., p. 5) Even if the adequscy of the Environmental Lapact Appraisal is in some way here subject to review, and even if the Alter-natives there mentioned are here subject to discussion it is clear under the judicial precedents that any analysis of alternatives is subject to the " rule of reason".
NRDC vs Morton, 458 F. 2d 827, 837 (D.C. Cir. 1972),
The NRC Scaff was not required to consider remote and speculative alter-natives. The alternative suggested by Ms. Garrett is such an alternative.
Neither applicants nor the NRC Staff witnesses considered her proposal as a reasonable or credible option (Frewing, p.107, follows Tr. 5638, 13 - APPLICANTS' 3RIEF IN OPPOSITION TO INTERVENOR SUSAh M. GARRETT'S EXCEPTIONS
Clark, Tr. 5766).
In addition, Intervenor Garrett provided no evidence to refute applicants' testimony that " firm" hydro electric energy has not been available to it from the Bonneville Power Administration since 1973 (Tr. 6207-08, 6117-20).
Intervenor Garrett's argument relates solely to the use of what is referred to as " secondary energy" and
" secondary hydro-electric energy" is that energy derived from hydro-electric sources which may or may not be available on account of rainfall and other like weather conditions (Tr. 6120-22, 6205-08).
In poor water years little or no secondary energy may be available (Tr. 6207).
In some months it may be available; in other =onths it may not as is reflected in Attachment 8 to the tes timony of Garrett witness Topaz (Topas, Garrett Exhibit 8, follows Tr. 6284).
Applicant has no vested right to receive secondary energy from the Bonneville Power Administration even when it is available (Tr. 6216). As the demands of preference customers have increased, the availability of secondary energy to Applicant has decreased (Tr. 6214).
Secondary energy is only available on a basis of monthly estimates (Tr. 6109-10).
It is obvious a reliable electric system cannot be maintained if it is dependent upon energy which may or =ay not be available and its availability is not known except on month-to-month basis. On the merits, the Garrett " slew-down" option is no option and a
therefore required no consideration in the NRC's Staff's Environmental Imptet Appraisal.
IV DID THE LICENSING BOARD ERR IN APPLYING THE FIVE-FACTOR TEST SET FORTH IN 40 FED. REG. 4280l?
Com=encing on p. 5 of brief under the title "3". The Trojan modifi-cation is Lspennissible prior to completion of the Ccamission's generic 14 - APPLICANTS' 3RIEF IN OPPOSITION TO INTER 7ENOR SUSAN M. GARRETT'S EXCEPTIONS
EIS spent fuel storage", we again have the " slow-down" or " reduced power output" theory advanced in the form of an attack on the Licensing Board's findings relating to the application, weighing and balancing by NRC Staff of the five factors set forth in 40 Fed. Reg. 42801. The argument made in the Garrett brief apparently seeks to support Garrett Exceptions 4, 5, 6, and 7.
Her argument goes something like this:
her " slow-down" or
" reduced power" option has been overwhelmingly demonstrated, hence there is no need for the modification, hence the five-factor test has not been met.
(Garrett Br., p. 5-6)
The vice in this argument, of course, lies in Ms. Garrett's firm establishment of the " reduced power" or " slow-down" option.
For the reasons previously suggested a reliable utility system cannot be run on unreliable " secondary energy".
(See the discussion under the prior heading.)
Unless the system can operate on secondary energy, her argu-i ment has no merit and such is the case.
Taking Garrett's argument at face value, it is nothing more than an attempt to relitigate the "need for power" issues of the original licensing proceedings many years after those proceedings closed. This is impermissible. Nc -thern States Power Cocoanv (Prairie Island Nuclear Generating Plant, Unite. p.nd 2), supra.
Finaliy, Ms. Carrett refers to the various argume.us made by the State of Oregon and attempts to adopt the same.
The arguments she seeks to adopt are re futed iine for line and argument for 2rgument by the Licensing Board in its Findings 185, #86, and #87 on pages 54 throug'.i 57 of its Initial Decision.
Since Ms. Garrett has e'.ected to add aething to what has been previously said on this subject or to point out in any 15 - APPLICANTS' 3RIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT' S EXCEPTIONS
particularity how the Licensing Board erred in answering Oregon's argu-ment, there appears nothing further that can or need be said. Under the Commission's procedures, the Licensing ooard is the basis fact-finder.
The Licensing Board caw and heard the witnesies.
Its Findings relating to the five-f actor test are supported by substantial evidence. Other than her atempt to invoke the " reduced" or " slow-down" op tion, she makes no new claim that the licensing Beard's Findings are not supported by the record. The Board's findings therefore should be sustained.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2) ALAB-254, 8 AEC 1184 (1975); Wisconsin Electric Power Co. (Paint Beach Nuclear Plant, Unit 2), ALAB-73, 5 AEC 319 (1972)..
V CONCLUSION We have specifically considered in this brief the matters in Ms. Garratt's brief which are arguably before this Appeal Board.
Exceptions 1, 2, and 8 have not been specifically addressed for reasons previously suggested. However, with respect to cumulative impacts, the Licensing Board fi und that the NRC Staf f considered the envirori ntal i
impacts resulting from the spent fuel pool =odification at Trojan and found the same to be localiced, insignificant and inconsequential. The NRC Staff also looked at the same type of modification et other plants in the United States and found each of the same to be insignificant,
'ocalized, and inconsequential. Based upon this, the NRC Staff concluded that their would be no cumulative environmental impacts.
(Donohew, P1-2, follows Tr. 5558-61; 5565-66) This finding was accepted by the Licensing Board.
(Initial Decision, p. 53) Ms. Garrett does not point to any 16 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
fact in the record disputing such finding. Her argument is based upon facts beyond the record.
In Exception 9, Ms. Garrett argues that the Licensing Board should not have treated all of the Intervenor Alternative Contentions "as a group".
Grouping in an appropriate case would appear to be permissible practice. Florida Power & Light Co. (St. Lucie Nuclear Power Plant) ALAB-335, NRCI 76/6 830 (1976)
In any event Ms. Garrett has not demonstrated how she was prejudiced by such act.
With respect to f ' otion 13, the record to what Mr. Topaz did or did not say speaks fo. -elf.
As previously noted, Exception 14 attacks the Licensing ud's summary of the evidence on Alternatives.
Since the Licensing Board justifiably was not required to make the Findings on Alternatives, Exceptions 13 and 14 are irrelevant to any decision in this matter.
For these reasons and che reasous set forth in other portions of this brief, Ms. Garrett's Exceptions should be rejected and the Licensing Board affirmed.
Respectfully submitted,
//
,rl
' f v?:/W)Q f WARREN 'HASTINGS Of Attorneys for Applicants 17 - APPLICANTS' BRIEF IN OPPOSITION TO INTERVENOR SUSAN M. GARRETT'S EXCEPTIONS
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(p UNION ELECTRIC COMPANY e
1901 GRATIOT STREET ST. Louis, MISSOURI g
December 22, 1978
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Mr.
R.
F.
Heishman, Chief Reactor Construction & Engineering Support Branch U.S.
Nuclear Regulatory Commission Region III 799 Roosevelt Road Glen Ellyn, IL 60137 ULNRC-302
Dear Mr. Heishman:
INSPECTION REPORT NO. 50-483/78-10 This is in response to your letter of November 24, 1978 reporting results of an inspection at Union Electric Company's Callaway Plant Site on October 2-4, 1978 and as detailed in inspection report number 50-483/78-10.
None of the material in the inspection report or in this response are considered proprietary by Union Electric Company.
The respense listed below corresponds to the items listed in Appendix A, Notice of Violation, of the inspection report.
Infraction
- 1. 10CFR50, Appendix B, Criterion V, requires, in part, that activities affecting quality shall be accomplished in accordance with instructions and procedures.
Paragraph 17.1.5 of the SNUPPS PSAR requires that these activities shall be accomplished in accordance with the applicable instructions and procedures.
Paragraph 3.16 of Work Procedure number WP-503, Control of Welding Consumables, Revision 6 dated ' lay 5, 1978, states in part that " Loose electrodes and filler wire shall not be left lying around but shall be contained in a portable container or a weld pouch."
Inter-office memorandum CM-450, dated June 9, 1977, from the Welding Superintendent to All Super-intendents and Welders on the subject of Rules 0IUID a
7901160119 (5{
9 Mr.
R.
F.
Heishman.
for Welding Control states in part " Weld rod stubs shall be put in stub containers and emptied in a trash container at the end of the shift."
Contrary to the above on October 4, 1978, the RIII inspector observed a large quantity of E7018 weld rod stubs lying around in the stiffener channels that are attached to the liner plate at the fourteenth lift area of
- 5e containment exterior wall.
(483/78-10-02).
a.
CORRECTIVE ACTION TAKEN AND THE RESULTS ACHIEVED The weld rod stubs identified by the NRC Inspector have been removed and properly disposed of.
Other areas of the plant are being checked to insure that all weld rod stubs have been properly disposed of.
- b. CORRECTIVE ACTION TAKEN TO AVOID FURTHER NONCOMPLIANCE Interoffice Communication CM-883 has been issued to all Daniel supervision and Daniel welders instructing them of the importance of complying with this pro-cedural requirement.
Daniel letter DLSC-80-2746 has been issued to the subcontractor working in this area informing him of these requirements.
In addition, weld rod waste containers have been fabricated and placed in each building for disposal of weld rod stubs.
A program of monitoring compliance with weld rod control has been implemented and will continue until a level of confidence has been achieved that this problem is under control.
c.
DATE WHEN FULL COMPLIANCE WILL BE ACHIEVED March 1, 1979 2.
10CFR50, Appendix B, Criterion V, require 9, in part, that activities affecting quality shall be accomplished in accordance with instructions and procedures.
Mr.
R.
F. Heishman I Paragraph 17.1.5 of the SNUPPS PSAR requires that these activities shall be accomplished
'in accordance with the applicable instructions and procedures.
Paragraph 5.3.4 of UE QA Procedure number QA-106, Revision 5 requires that responses to audits, where corrective action is indicated are to be submitted within 30 days after receipt of the audit report.
Contrary to the above, five of the eight audits reviewed by the RI inspector identi-fied that the Constructor (audited organiza-tion) did not respond within the required time.
(483/78-10-06)
- a. CORRECTIVE ACTION TAKEN AND THE RESULTS ACHIEVEJ Daniel personnel directly involved in audit responses have been reminded of the requirement for making timely responses to Quality Assurance audits.
The responses to the two Union Electric QA Monthly Audits which were due since the NRC infraction was identified have been submitted in a timely manner,
- b. CORRECTIVE ACTION TO BE TAKEN TO AVOID FURTHER NONCOMPLIANCE The Daniel Project Manager has issued a directive ( PM-63 8 ) to all Department Managers concerning this infraction.
This directive emphasizes the requirement for making timely responses to Quality Assurance audits.
The Union Electric Site QA Group will contact Nuclear Construction and/or Daniel as appropriate when a response is not received within 30 days of submittal of the audit report.
- c. DATE WHEN FULL COMPLIANCE WILL BE ACHIEVED December 26, 1978
l Mr. R.
F. Heishman If you have any quections regarding this response or additional information is required, please let me know.
You very truly, a
- D I
-b bu f T%t,)G: \\
John K.
ryan/
WSS/jds cc:
E.
R.
Schweibinz