ML19256B215
| ML19256B215 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 01/08/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7901240346 | |
| Download: ML19256B215 (37) | |
Text
s January C, 1979 NRC PUBLIC DOCU'Trr r 'c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
~
)
)
PORTLAND GENERAL ELECTRIC
)
Docket No. 50-344 COMPANY, ET. AL.
(Trojan NucTear71 ant)
(Proposed Amendment for Fuel Storage Pool Modification)
NRC STAFF'S BRIEF IN OPPOSITION TO EXCEPTIONS OF INTERVENOR SUSAN M. GARRETT N
h Tsf
/;
..n n21sts > :.
u d
~w..:, syy,2??
'\\ yxcw.;,,,
7 9 0124 03 Yb
TABLE OF CONTENTS Pace I.
I n t rod uc ti o n.........................
1 II.
S ta ff Po s i ti on............,...........
4 A.
Consideration of the Need for the SFP Modification and Alternatives Thereto Was Adequate and Authori-zation of the M.odification Does Not Violate the Commission's Regulations, the APA, NEPA or Procedural Due Process - Exceptions 9-12 4
B.
The Staff's Environmental Impact Appraisal is Adequate to Support Issuance of the SFP Amr.A.:nt and Such Amendment May Be Authorized Prios oo Issuance of the Commission's GEIS on Sn'.ic Fuel Storage - Exceptions 1-8................
14 III.
Conclusion.........................
29 M
TA5LE OF AUTHORITidS Cases Page Calvert Cliffs Coordinating Committee v AEC, 449 F. 2d 1109 (D. C. Ci r. 19 71 )....................
15 City of New Haven v Chandler, 446 F. Supp. 925 (D. Conn. 1978)..................
11,12, 13 Consumers Power Co. (Midland Plant, 011ts 1&2),
CLI-74-5, 7 AEC 19 (1974).............
5, 15 Consumers Power Co. (Midland Plant, Units 1&2),
ALAB-458, 7 NRC 155 (1978).,...................
13,14 Duke Power Co. (Oconee Nuclear Station, Units 1, 2 & 3),
Comission t%mo.& Order, 4 AEC 71 (1968)...............
6 Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3),
ALAB-482, 7 NRC 979 (1978)......................
10 Duke Power Co. (Catawba Nuclear Station, Units 182),
ALAB-355, 4 NRC 397 (1976)......................
2 Duouesne Light Co. et al. (Beaver Valley Power Station, Unit 1),
ALAB-484, 7 NRC 984 (1978)......................
10 Duouesne Light Co. et al. (Beaver Valley Power Station, Unit 1),
LBP-78-16,. 7 NRC 811 (1978) 10 EDF v Corps of Engineers, 470 F. 2d 289 (8th Ci r. 1972).....................
15 Greater Boston Television Corp. v FCC, 444 F.2d 841 (D.C. Cir. 1970).....................
7 Hanly v Kleindienst, 471 F.2d 823 (2d Cir. 1972)......................
11 Hanly v Mitchell, 460 F.2d 640 (2d Cir. 1972)...........,
11 Illinois Power Co. (Clinton Power Station, Units 1&2),
ALAB-340, 4 NRC 27 (1976)......................
2, 14 Klecoe v Sierra Club, 42 7 U. S. 390 ( 19 76).........................
18, 23
Cases Page Lona Island Liahting Co._ (Shoreham Nuclear Power Station),
ALAB-156, 6 AEC 831 (1973).....................
19 Long Island Lighting Co. (Shoreham Nuclear Power Station)'
LBP-73-13, 6 AEC 271 (1973).....................
7 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station),
ALAB-161, 6 AEC 1003 (19 73).....................
6 Mathews v Eldridge, 424 U.S. 319 (1976).........................
7 Minneapolis & St. Louis RR. Co. v U.S.,
361 U.S. 173 (1959).........................
6 Natural Resources Defense Council, Inc. v Morton, 458 F.2d 827 (D.C. Ci r. 1972)...................
12, 15 Niagara Mohawk Power Corp. (Nine Mile Point, Unit 2),
CLI-73-28, 6 AEC 995 (1973)....................
9, 15 Northern Indiana Public Sa.vice Co. (Bailly Generating Station, Nuclear 1), ALAB-303, 2 Ni C 858 (1975)...............
19 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1&2), ALAB-455, 7 NRC 41 (1978)...........
8, 9,16 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 182), LBP-77-51, 6 NRC 265 (1977)..........
19, 23 Nucleus of Chicago Homeowners v Lynn, 524 F. 2d 225 ( 7 th Ci r. 1975)....................
19 Portland General Electric Co. (Trojan Nuclear ant),
LBP NRC (December 21, 1978)............... 28 Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1&2), ALAB-459, 7 NRC 179 (1978).....
2 Public Service Co. of New Hampshire et al. (Seabrook Station, Uni ts 182), CLI-7 7-8, S NRC 503 (1977)...............
9 Public Service Co. of New Hampshire et al. (Seabrook Station, Uni ts 1&2), ALAB-422, 6 NRC 33 (1977)...............
5, 7 Public Service Co. of Oklahoma et al. (Black Fox Station, Uni ts 182), LBP-78-26, 8 NRC 102 (1978)...............
13
Cases Paae Sierra Club v Lynn.
502 F.2d 43
( 5 th C i r. 19 74 )....................
17 Sierra Club v Morton, 510 F. 2d 813 ( 5th Ci r. 1975)...................
13, 18 Trinity Episcopal School Corp. v Romney, 523 F.2d 88 (2d Cir. 1975).....................
11 Union of Concerned Scientists v AEC, 499 F.2d 1069 (D.C. Cir. 1974)...................
6, 15 Vermont Yankee Nuclear Power Corp. (Vermont Ya'nkee Nuclear Power Station, Unit 2), ALAB-264,1 NRC 347 (1975).........
9 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-73, 5 AEC 297 (1972)..............
7 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491 (1973)...
18, 19 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Uni t 2), ALAB-78, 5 AEC 319 (1972).................
7 M
S
Statutes Page Administrative Procedure Act 5 U.S.C. 551 et seg..
2 5 U.S.C. 557(c)........................
6 National Environmental Policy Act 42 U.S.C. 4321 et seq.
2 Section 102.........................
11, 12 Regulations 10 CFR 9 2.743...........................
28 10 CFR 9 2.760..........................
5, 6
~
10 C FR 9 2. 7 62..........................
1, 3 10 CFR 9 Sl.7(b)..........................
20 40 CFR 9 1500.6(e) (CEQ Guidelines),,,,.............
20 Federal Register 4 0 F. R. 4 2 8 01 - 0 2.........................
2, 21,
22, 23, 24 N
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
PORTLAND GENERAL ELECTRIC Docket No. 50-344 COMPANY, ET. AL.
(Proposed Amendment for Fuel (TrojanNuclearPlant)
Storage Pool Modification)
NRC STAFF'S BRIEF IN OPPOSITION TO EXCEPTIONS OF INTERVENOR SUSAN M. GARRETT I.
Introduction On October 5,1978, the Atomic Safety and Licensing Board (Licensing Board or Board) in the captioned proceeding issued an initial decision authorizing an amendment of the Trojan operating license to permit an increase in the storage capacity of the spent fuel pool (SFP) at the facility from 280 to 651 spent fuel assemblies. On October 23, 1978, Susan M. Garrett (Intervenor), acting on her own behalf and as representa-tive of the Coalition for Safe Power, filed exceptions to the initial decision pursuant to 10 CFR S 2.762.E ntervenor's Brief in Support I
of Exceptions was timely filed on November 22, 1978.
Intervenor's Brief appears to address, either directly or indirectly, y By motion dated October 16, 1978, Intervenor requested an extension of time, until October 23, 1978, in which to file exceptions. By order dated October 26, 1978, the Appeal Board granted the requested time extension.
, all but exceptions 13 and 14.2_/
In essence, Intervenor asserts that:
(1) the Licensing Board's failure to make specific and detailed findings as to Garrett con +antions Al and A2 3/ related to alterna ves to and need for the pro-posed SFP adification violates the Comission's regulations, the Administra-tive Procedure Act (APA) (5 USC 551 et sea.), the National Environmental Policy Act (NEPA) (42 USC 4321 et seq.) and procedural due process; (2) tne NRC Staff's Environmental Impact Appraisal (EIA) is inadequate to support issuance of the proposed amendment; and (3) The "five-factor test" set forth in the Comission's Notice of Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (GEIS Notice)
(40 F.R. 42801, September 16,1975)has not been met and authorization of the SFP modification should thus be deferred pending issuance of the GEIS.
2_/ Since a brief in opposition to an appeal should concentrate on the appellant's brief rather than on the exceptions which have been filed, Illinois Power Co. (Clinton Power Station, Units 182), ALAB-340, 4 NRC 27 (1976), and since exceptions not briefed ara abandoned, Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1&2, ALAB-459, 7 NRC 179, 203 at n.66 (1978); Duke Power Co. (Catawba Nuclear Station, Units 182), ALAB-355, 4 NRC 397, 413-14 (1976), the Staff's response herein is directed toward those exceptions which have been addressed by Intervenor in her Brief.
3/ These Garrett Contentions read as follows:
A1:
The Licensee has not provided an adequate analysis of alternatives to the proposed spent fuel pool modifications. Specifically:
(a) The Licensee has not adequately considered the comparative costs and benefits of such alternatives as the following: storage at a commerical facility; storage at the Allied General Nuclear Services' re-(Continued on page 3)
4 For the reasons set forth below, the NRC Staff (Staff), opposes theseexceptions.O 3] Continued from previous page -
procusing plant; storage at a federal military facility; storage at another nuclear plant; storage of four regions of spent fuel in the existing unmodi-fied 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 federal retrievable surface storage sites; the use and promotion of measures such as conservation and development of non-nuclear power sources, which would allow reactor shutdown or reduced power output from Trojan and a consequent reduction in the rate of generation of spent fuel.
Such failure to adequately consider alternatives violates the National Environmental Policy Act.
In addition, foreclosure of development or exploration of such alternatives would tend to significantly affect other licensing actions designed to ameliorate a possible shortage of spent fuel storage capacity.
A2:
The explicit basis for the Licensee's application for expanded spent fuel storage is that off-site storage will not be available when needed.
This "need for expanded storage capacity" assumption is speculative.
Since (1) the Licensee can store spent fuel in existing unmodified facilities (without retaining reserve capacity) until 1982, and (2) off-site storage could be available by 1982, the Licensee has not adequately demonMated a present or future need for expanded storage capacity which would justify the economic and environmental 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 public interest" would result if approval of the proposed modification were to be delayed until after the issuance of the ganeric Environmental Impact Statement now being pre-pared by the Conraission y On November 13, 1978, Intervenor Stat' of Oregon filed exceptions to the Licensing Board's initial dects.on. Oregon's Brief in support of its exceptions was filed on December 13, 1978. The Staff will address Oregon's appeal in a separate brief to be filed within the time limits prescribed in 10 CFR S 2.762.
. II.
Staff Position Intervenor addressed her exceptions in two groups - exceptions 9 through 12, in which she argues that the Licensing Board's failure to make detailed findings on the need for the SFP modifications and alternatives thereto violates NRC regulations, the APA, NEPA and procedural due process, and exceptions 1 through 8, in which it is claimed that the Staff's EIA is inadequate and that authorization of the SFP modification should be deferred until after issuance of the
~
GEIS. These matters are addressed in similar groups herein.
A.
Consideration of the Need for the SFP Modification and Alternatives Thereto Was Adeauate and Authorization of the Modification Does Not Violate the Commission's Reculations, N the APA, NEPA or Procedural Due Process - Exceptions 9 - 12 Intervenor first asserts that Garrett contentions Al and A2, as well as contentions of other intervenors insofar as they relate to need for the SFP modification and alternatives that might obviate that need, 5/ Exceptions 9 through 12 are as follows:
Exception 9,: ASLB at page 63 (para. 91) declines to make findings on each of parties' contentions Ore 90n A-1 and B-1, Garrett A-1 and A-2, McCoy A-4, and McKeel A-7 on an irdividual basis, but treats them "as a group."
Exception 10: ASLB makes no specific findings with regard to Garrett Contention A-1(b) as it relates to "use and promotion of measures such as conservation and development of non-nuclear power sources, which would allow... reduced power output from Trojan and... reduction in the rate of generation of spent fuel."
Exception 11: ASLB at pp. 65 and 66 (para. 98) declines to " consider alternatives or the need for the modification in any detail," effectively refusing to make findings on any of the contentions cited in Exception 9, supra, including Garrett contentions Al and A2.
Exception 12: ASLB makes no specific findings with regard to Garrett contention A-2.
_5_
present " disputed questions of ultimate and supporting basic facts for which findings are required to be made".
Sne also asserts that administrative agencies in general and the NRC in particular pursuant to 10 CFR S 2.760 have a duty to detennine all material issues of fact, law or discretion properly and adequately raised in a proceeding and that the Licensing Board ignored the issues raised by the contentions in question, and thereby erred in its initial decision.
Contrary to Intervenor's argument, the Licensing Board did not ignore material issues and evidence directed to such issues but, in fact, dealt explicitly with all contentions related to need for the SFP modification and alternatives thereto, albeit as a group.5/ While a licensing board must clearly state the basis for its decision as well as its reasons for rejecting certain evidence, Public Service Co. of New Hamoshire et al. (Seabrook Station, Units 1&2), ALAB-422, 6 NRC 33, 41 (1977), there is nothing to indicate that it is error for a board to deal with substantively similar contentions as a group rather than individually. / Moreover, the Licensing Board in its initial decision 1/ See Initial Decision, Slip op. pp. 60-66, para.91-98.
_7f See, e.g. Consumers Power Co. (Midland Plant, Units 1&2), CLI-74-5, TAEC 19, 25 (1974). Therein the Commission noted the fact that both the Licensing Board and the Appeal Board below dealt with all energy conservation contentions as a grcup except where they found it necessary to refer to specific contentions. The Coninission did not indicate any particular concern with this approach and, in fact, itself dealt with similar contentions by group.
, 8 reviewed the evidence directed to the contentions in question _/ and clearly stated the basis for rejecting those contentions and the evidence supporting them.N Ms. Garrett argues that the Licensing Board's treatment of the need and alternative contentions violated the APA and procedural due process. Under section 8(b) of the APA, 5 USC 557(c), a party to an administrative proceeding is entitled to obtain from the agency an articulation of the reasons underlying resolution of all material issuesE/
of fact, law or discretion presented on the record.
Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1015 (1973).
This requirement (which in form and substance is incorporated in the Commission's regulations at 10 CFR S 2.260), is met fully where, as here, it infoms the party of the disposition of its contentions and provides information sufficient to pemit the parties, the public, and a reviewing tribunal to ascertain the basis for the decision. Minneapolis & St. Louis RR. Co. v U.S., 361 U.S.173,193-94 (1959); Union of Concerned Scientists v AEC, 499 F.2d 1069,1094 (D.C.
8/ Initial Decision Slip Op., pp. 63-65, para 92-96.
9] Initial Decision Slip Op., pp. 65-66, para. 98.
10/ An agency need not treat e"ery issue or suppordng argument raised by a party. Only materiaT issues of fact, law or discretion need be dealt with and a particular conclusion of law may render certain issues and findings immaterial. Duke Power Co. (Oconee Nuclear Station, Units 1, 2 & 3), Comission Memorandum and Order, 4 AEC 71, 72 (1968).
Cir.1974), affirmina on this ooint, Baston Edison Co. (Pilgrim Nuclear Power Station), LBP-72-25, 5 AEC ;J311972);' Greater Boston Television Corp. v FCC, 444 F.2d 841, 851 (D.C. Cir.1970); Public Service Co. of New Hamoshire et al. (Seabrook Station, Units 182), ALAB-422, 6 NRC 33, 41 (1977); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 321 (1972); Vermont Yankee Nuclear Power Corp.
(Vermont Yankea Nuclear Power Station), ALAB-73, 5 AEC 297, 299 (1972);
Long Island Lichting Co. (Shoreham Nuclear Power Station), LBP-73-13, 6 AEC 271, 306 (1973).
Ms. Garrett's assertion with regard to violation of the APA is thus without merit. With regard to a violation of procedural due process, it is the Staff's view that those same protections provided by the APA and the Commission's regulations as to an agency's articulation of the basis for its decisions assure that a party's procedural due process rights in this area are not violated.
Procedural due process in administrative hearings "is not a technical conception with a fixed
~
content unrelated to time, place and circumstances.... [D]ue process is flexible and calls for such procedural protections as the particular situation demands..." Mathews v Eldridge, 424 U.S. 319, 334 (1976).
Neither law nor reason dictate that a party's procedural due rights are violated where an adjudicatory tribunal addresses a party's contentions as a group but nevertheless clearly articulates the reasons for rejecting those contentions and evidence directed to them.
In the instant case, the Licensing Board's initial decision fully informs Intervenor of the disposition of her contentions and provides information sufficient to permit the
3-parties, the public and any reviewing tribunal to ascertain the basis for the decision. Procedural due process requires no more than this.
Intervenor argues that the Licensing Board's treatment of her contentions Al and A2, insofar as those contentions deal with reduced power output from the Trojan facility and need for the SFP modification, violates NEPA.
Intervenor surmarizes contentions Al and A2 as asserting that the analysis of alternatives of the SFP modification, specifically the alternative of reduced power output from Trojan, was not adequately considered and that this alternative would reduce the rate of generation of spent fuel, thereby obviating the need for the modification.b These contentions and Intervenor's arguments thereon, while couched in terms of need for the SFP modifications, are, at their base, arguments for the reconsideration of the need for Trojan power. As the Appeal Board pointed out in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1&2), ALAB-455, 7 NRC 41, 46 at n.4 (1978),
~
the environmental aspects of plant operation, including energy conservation, need for power, and the environmental impacts of the generation of a certain amount of spent fuel over the full tem of the operating license, were fully reviewed and considered during the initial licensing stages for the facility. The license amendment in question would not occasion the generation of more wastes than had been nreviously projected and nothing in NEPA or the judicial decisions interpreting it dictates that the same 11/ Garrett Brief, p.2.
ge';ad be wholly reploved in connection with a proposed arencnent to the facility's full-term operating license.N Rather, unaer NEPA, "all that need be undertaken is a consideration of whether the amendment itself would bring about significant environmental consequences beyond those previously assessed and, if so, whether those consequences (to the extent unavoidable) would be sufficient on balance to require a denial of the amendment application." Prairie Island supra, 7 NRC at 46, n.4.
The scope and focus of any NEPA analysis depends upon the nature of the particular prop.osal_ and the factual predicate existing at the time the analysis must be
~
performed.
Public Service Co. of New Hampshire et al. (Seabrook Station, Units 1&2), CLI-77-8, 5 NRC 503, 541 (1977). Here, that factual predicate is one in which a facility has a full power operating license and the proposed action is to amend the license to allow an increase in spent fuel storage capacity.
The environmental consequences of the Trojan SFP amendment were fully analyzed and considered in this proceeding and were the subject of extensive findings by the Licensing Board. E ased on that consideration, B
the Licensing Board found that the environmental consequences of the SFP amendment would not only be insignificant but that they would be negligible.b Under Prairie Island, suora this, without more, is sufficient to satisfy
-12/ Intervenor cites Niagara Mohawk Power Corp. (Nine Mile Point, Unit 2),
CLI 73-28, 6 AEC 995 (1973) for the proposition that full consideration must be given to energy conservation and reduced-power-output contentions.
Sne also cites Vermont Yankee Nuclear Power Corp. (VermontYankeeNuclear Power Station, Unit 2), ALAB-264,1 NRC 347 (1975) as the basis for the claim that "need is a key and threshold factor to be determined in any cost-benefit balance".
Intervenor's reliance on these cases is clearly misplaced since each involved construction permit or initial operating license proceedings and dealt with matters which are appropriate to be considered in such initial licensing proceedings, M See Initial Decision slip Op., para. 67, 68, 73, 78, 79, 82-90, 98, 103, 104.
14/ Id at para. 98.
NEPA and allow authorization of the SFP amendment.El Even if the teachings of Prairie Island are ignored, need for the amendment, as pointed out by the Licensing Board in this proceeding,El can only properly be considered in a cost-benefit balance. Where, as here, the environmental costs of the amendment are negligible, any benefits whatever from the amend-ment would tip the scale in favor of it. Both the evidence E and the Licensing Board's findingsEl show that the SFP modification does provide benefits in that it makes available additional storage capacity thus.
alleviating a potential shortfall in storage space at the facility.
-15/ In Duauesne Light Company et al. (Beaver Valley Power Station, Unit 1),
LBP-78-16, 7 NRC 811, 817 (1978), another SFP expa1sion case, the Licensing Board concluded that once it is found that the proposed SFP amendment will not have significant environmental impacts, considera-tions of costs and benefits (of which a consideration of need for the amendment would be a part) and of alternatives to the proposed action are not required as a matter of law or of logic (the Licensing Board went on to assess alternatives despite this conclusion). Upon sua sponte review, the Appeal Board specifically found that the legal detenninations of the Licensing Board were consistent with the Appeal Board's Prairie Island decision. Ducuesne Light Co. et al. (Beaver Valley Power Station Unit 1), ALAB-484, 7 NRC 984 (1978). While these Beaver Valley decisions cannot be given stare decisis effect because the Licensing Board's legal detenninations were not brought before the Appeal Board by way of an appeal, Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-482, 7 NRC 979, 981 at n.4(1978), they are not incon-sistent with the Licensing Board's approach in the instant proceeding.
H / Initial Decision Slip Op., para. 98.
H/ See e.g. Staff Exh. 1B, pp. 23-24.
18/ Initial Decision Slip Op., para 86 at pp. 55-56.
The need to consider alternatives under NEPA arises from section 102(2) of that Act. Section 102(2)(C) provides that where a major federal action significantly affects the quality of the human environment, an environmental impact statement (EIS) which considers, inter alia, alternatives to the proposed action must be prepared (section 102(2)(C)(iii)).
NEPA contemplates that some agency action will not require an EIS where
~
the action is minor and has an insignificant effect on the environment.
Hanly v Mitchell, 460 F.2d 640, 644 (2d Cir.1972), cert, den., 409 US 990.
Where, as here, it has been detennined that a proposed federal action would not significantly affect the environment and that an EIS is not necessary, the altnerative requirement of section 102(2)(C), which applies only to an EIS, is not applicable.
Intervenor argues, on the other hand, that section 102(2)(E}E of
~
NEPA requires an agency to study, develop and describe alternatives even where an EIS is not required. There is judicial support for this position.E However, the plain language of section 102(2)(E) makes it clear that this requirement applies to "any proposal which involves unresolved conflicts concerning alternative uses of available resources." There has been no assertion in this proceeding, and, indeed, in the Staff's view, there
-19/ In her Brief at page 3, Intervenor erroneously cites this section of NEPA as 102(2)(D).
2_0/ See, e.g., Trinity Episcopal School Corp. v Romney, 523 F.2d 88, 93 (2d Cir. 1975); Hanly v Kleindienst, 471 F.2d 823, 834-35 (2d Cir.
1972), cert. den., 413 US 908; City of New HA.ven y Chandler, 446 F.
Supp. 925, 933- (D. Conn.1978).
can be ncne, that the proposed SFP amendnent involves such unresolved conflicts over the use of available resources. The evidence, in fact, shows that the commitment of resources for the instant SFP modification is relatively minor and would not foreclose or significantly affect other alternatives.b Thus, it is questionable whether section 102(2)(E) of NEPA applies in this case.
However, even assuming that section 102(2)(E) is applicable, alternatives to the proposed modification were adequately considered here.
Addressed in detail on the record were alternatives involving shipment of spent fuel to fuel reprocessing facilities, shipment to a separate fuel storage facility, shipment to another reactor site, deferral of the modf-fication and utilizing fully the unmodified SFP, larger or smaller increases in Trojan SFP capacity, Trojan shutdown and reduced power output.
In each instance, the proposed SFP modification was found to be preferable.E It is clear that the same rule of reason applies to consideration of alternatives under section 102(2)(E) of NEPA as applies to such con-sideration of under section lC2(2){C). Natural Resources Defense Council, Inc. v Morton, 458 F.2d 827, 836-37 (D.C. Cir.1972); City of New Haven v Chandler, 446 F. Supp. 925, 934 (D. Conn.1978). What is required is information sufficient to permit a reasoned choice of alternatives insofar as environmental effects are concerned. Natural Resources Defensa Council, Inc. v Morton, supra at 458 F.2d 836, City of 2_1/ Staff Exh.18, a 8.3, pp.21-23; a 8.4, item (2), pp. 24-25.
22/ Staff Exh.18, pp.15-20; Testimony of Clark in response to alternatives contentions, following Tr. 5692; Testimony of Frewing on alternatives, following Tr. 5638; Tr. 5620-6487. See Initial Decision Slip. Op. pp. 63-65.
. New Haven supra,446 F. Supp. at 933.
In this vein, alternatives are to be examined in the contcxt of the nature of the proposed action and its estimated environmental impact. Where the impacts of alternatives are the same as those of the proposed action, alternatives may be considered in less depth. City of New Haven supra, 446 F.Supp. at 935.
In fact, alternatives which result in environmental harm similar to or greater than that of the proposed action need not be discussed or considered.
Sierra Club v Morton, 510 F.2d 813, 825, 826 (5th Cir.1975).
Since, in the instant case, the Licensing Board found, based on all of the evidence, that the environmental effects of the proposed amendment would be negligible, any other alternative would have environmental impacts equal to or greater than those of the proposed action.
Thus, the Licensing Board's determination that it need not consider alternatives in detail was correct. Moreover, it is unnecessary to consider alternatives which may be economically superior in this case.
Where, as here, the proposed action has no environmental disadvantages compared to alternatives, differences in financial cost are of little concern.
Consumers Power Comoany (Midland Plant, Units 1&2), ALAB-458, 7 NRC 155 (1978); Public Service Co. of Oklahoma et al. (Black Fox Station, Units 1&2),
~
In such a situation, the agency need not consider less expensive ways of handling the proposal or balance alterna-tives and, as pointed out by the Licensing Board in this proceedingh selection of a less expensive alternative is properly left to the business 23/ Initial Decision Slip Op., para. 98 at p. 66.
jutment of the licensee. idiand suora at 7 MRC 162-63: Illinois Power Comcany (Clinton Power Station, Units 1&2), ALAB-340, 4 NRC 27, 48 (1976). Thus, contrary to Intervenor's assertions, the f.icer. sing Board's consideration and treatment of alternatives was proper and adequate and does not violate NEPA.
Based on the foregoing, it is the Staff's position that the Licensing Board's Initial Decision does not violate the Commission's regulations, the APA, procedural due process or NEPA as asserted by Intervenor with regard to her exceptions 9 through 12 and that thece exceptions are without merit.
B.
The Staff's Environmental Imoact Appraisal is Adequate to Support Issuance of the SFP Amendment and Such Amendment May Be Authorized Prior to Issuance of the Coninission's GEIS on Spent Fuel Storace - Exceptions 1 - 8 24/
Intervenor argues that the Staff's EIA is inadequate to support issuance of the SFP umendment because it failed to consider need for the amendment in view of possible energy conservation or reduced-power 24] Exceptions 1 through 8 are as follows:
Exceotion 1: ASLB asserts at page 53 (paragraph 83) that the NRC Staff did not overlook cumulative impacts in the EIS.
Exception 2: ASLB esserts at page 53 (paragraph 84) that the EIA fully considered all attributable environmental impacts at both Trojan and "other facilities".
Exception 3: There is no finding that the EIA fully or adequately considered alternatives to the proposed modification, although this was clearly an issue of fact in this proceeding (i.e., Garrett Contention Al and Oregon Cor.tention A1).
Exception 4: ASLB asserts at page 55 (paragrcph 86) that the evidence supports a finding that the second 40 FR 42801 factor i,as been adequately evaluateo.
Exception 5: ASLB asserts at page 55 (paragraph 86) that the third 40 FR 42801 factor has been adequately evaluated, and cites findings in paragraph 83.
Exception 6: ASLB finds at page 56 (paragraph 86) facts sufficient to support the finding that the fifth 40 FR 42801 factor has been adequately evaluated.
(Continued on next page)
cu:Put %3ures that could reduce the rate of generation of spent f.,el Intervenor cites no authority for the proposition that need for power or need for a particular license amendment must be considered once it is determined that the amendment will have no significant environmental impacts and tnat an EIA, rather than an EIS, is appropriate.-
On the 24/ Continued from previous page -
Exception 7: ASLB asserts at page 58 (paragraph 90) that an EIS or a GEIS are not required by NEPA before the ASLB may grant the modi fica tion.
Exception 8: ASLb asserts at page 59 (paragraph 90) that the modification will not significantly affect the environment, and that a negative declaration is appropriate.
2_5f While it is true that reduced-power-output was not explicitly addressed in the EIA, the alternative of not authorizing the SFP amendmemt was considered. See Staff Exh. 18, 5% 7.4, 7.5, pp. 19-20.
---26/ The cases cited on page 4 of Intervenor's Brief, EDF v Coros of Enoineers, 470 F.2d 289 (8th Cir.1972); NRDC v Morton, 458 F.2d 827 TICC. Cir.1972); Calvert Cliffs Coordinating Committee v AEC, 449 F.2d 1109 (D.C. Cir.1971); Consumers Power Co. (Midland Plant, Units 1&2), CLI-74-5, 7 AEC 19 (1974); and Niacara Mohawk Power
_C_orp_. (Nine Mile Point, Unit 2), CLI-73-28, 6 AEC 995 (1973), which allegedly support the proposition that consideration must be given to energy conservation and that t% costs and benefits of alterna-tives must be analyzed, all involved cases where an EIS was required.
Since these cases dealt with requirements for an EIS, they are in-apposite here, where it has been detennined that the environmental impacts are negligible and no EIS is required.
Intervenor does not contend on appeal that the environmental impacts of the Trojan SFP modifications are significant and that an EIS is required on that basis. The Staff has found only one case, Union of Concerned Scientists v AEC, 499 F.2d 1069,1084 (D,C, Cir,19741, where a court has implied that restriking an original cost-benefit balance may be necessary even though the action did not result in significant environmental impacts. The action in question was a license amend-ment significantly derating a reactor's authorized power level in such a manner as to upset the original cost-benefit balance. That case clearly differs from the instant case and is, therefore, in-applicable here.
. contrary, as previously discussed, all that is required in this SFP proceeding is "a consideration of whether the amendment itselt would bring about significant environmental consequences beyond those previously assessed and,.if so, whether those consequences (to the extent unavoidable) would be sufficient on balance to require a denial of the ameadment application".
Prairie Island supra, 7 NRC at 46, n.4.
This is precisely what was done in considerable detail in the Staff's EIA and, based on that EIA, it was determined that the environmental impacts of the SFP amendment would be insignificant. Once this determination was made, no further consideration of need for the amendment is necessary, although need for the amendment was nevertheless considered in the Staff's EIA.2Z/
In view of this, Intervenor's assertion as to EIA inadequacy in this regard is without merit. Similarly without merit is Intervenor's a sertion that the EIA is inadequate because the Staff did not consider actions which could result in a redeced rate of spent fuel generation. Trojan was licensed based on the assumption that a certain amoJnt of spent fuel would be generated during the term of the operating license and this fact is not altered by the SFP amendment. Such matters thus need not be re-
~
considered for this SFP amendment. See Prairie Island supra at 7 NRC 46, n.4.
Intervenor also asserts that the Staff's EIA is inadequate because it was prepared primarily by engineers "with little training in environmental 2Z/ See, e.g., Staff Exh. 18, a 2.0, pp. 1-2.
or social sciences or economics".
The Staff is aware of no requirement that an EIA be prepared by persons of any particular discipline and, in fact, Intervenor has not identified any such requirement.
In the Staff's view, the adequacy of an EIA must be determined from its contents and the basis expressed therein for its conclusions, rather than by the disciplines of its authors. The EIA was admitted into evidence and its principal authors subjected to extensive cross-examination and scrutiny by the parties and the Licensing Board. Based on this record, the Licensing Board determined that the EIA was adequate to support issuance of a Negative Declaration with regard to the SFP amendment.2_8/
The EIA is further alleged to be inadequate because the Staff relied on the licensee for much of its information. While it is true that the Staff relied on information provided by the licensee with regard to the design and details of the SFP modification, the EIA represents the Staff's independent evaluation of such information and analysis of the environmantal consequences of the modification.
In this regard, it is no different than that situation which obtains where an EIS is prepared pursuant to an application for a construction pennit or operating license wherein the Staff relies for its basic information on an aoplicant's Environmental Report.
It is generally acceptable to use such information provided by an applicant or licensee. Sierra Club v Lynn, 502 F.2d 43, 59 {5th Cir.1974).
Again, the EIA was subject to considerable scrutiny in this proceeding 2_8/ Initial Decision Slip Op., para. 90.
8 and was found to be adequate. T'ere reliance on the licensee for some of the basic information which was then analyzed by the Staff in the EIA does not render the EIA inadequate.
Intervenor next argues that "the cumulative impacts of a nationwide complex of similar spent fuel pool expansion projects was ignored in the EIA".
First, it should be noted that " cumulative" as that word is used with regard to environmental effects under NEPA refers to effects which are " synergistic" or " working together".
See e.g. Klepoe v Sierra Club, 427 US 390, 409-412 (1976), where the Supreme Court _ clearly equates " cumulative" impacts with " synergistic" and interrelated and regional impacts.El This is consistent with this agency's interpreta-tion as expressed in Wisconsin Electric Power Comoany (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, 495 (1973) where the Appeal Board stated that:
NEPA and the Commission's regulations require a discussion of the environmental impact of the proposed licensirg action under consideration.
They do not require a discussion of the impact of future projects or, indeed, of any existing
~
plants unless they interact with or have some demonstrated relationship to or ' contact' with the project under consideration (footnote omitted).
All applicable requirements are satisfied when the effects of any other plant that could possibly interact with the one in question are
-29/ See also Sierra Club v Morton, 510 F.2d 813, 824-25 (5th Cir.1975),
wnere the court clearly implies that cumulative effects refer to regional considerations where a number of actions in an area combine to have a major impact.
considered.
Point Beach suora at 6 AEC 495.EI While cunulative inpacts of SFP modifications were not addressed in detail in the Staff's EIA, cumulative impacts were addressed in testimony.
As found by the Licensing Board,El the evidence shows that the environmental impacts of the Trojan SFP modification as well as impacts of such modifications at other plants around the country are so localized and inconsequential that there are no cumulative impacts.
The record thus establishes that there is no need to consider cumulative impacts in detail and Intervenor's assertion of inadequacy of the EIA in this regard is without merit.EI
~'-30/ To the same effect is Long Island Lightina Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 856 (1973) and, for SFP amendment actions, Northern States Power Co., (Prairie Island Nuclear Generating Plant, Units 1&2), LBP-77-51, 6 NRC 265, 271-72(1977), aff'd in part, ALAB-455, 7 NRC 41 (1978).
3_1/ Initial Decision Slip. Op., p. 53.
32/ There appears to be no precise fomat for a Negative Declaration or, for that matter, for an EIA in support of a Negative Declara-tion. Under the r.'st stringent judicially imposed standards, it is enough that it appear from the Negative Declaration that the agency took a "hard look" at the problem, identified the areas of environmental concern, and made a convincing case that the impact is insignificant. Northern Indiana Public Service Co.
(Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858, 875-76 (1975).
Such declaration can be incorporated in an adjudicatory decision and is adequate where the licensing board, in its initial decision, considers every reasonably conceivable environmental effect and assigns detailed reasons for its conclusion that the environmental impact will be negligible. What is required is that the agency develop a reviewable administrative record supportive of a decision not to file an impact statement. Nucleus of Chicago Homeowners v Lynn, 524 F.2d 225 (7th Cir.1975), cert. den., 424 U.S. 967.
Such requirement is met where the initial decision, based on a public hearing where full participation by opponents of the proposed action is afforded, sets forth the matters discussed above. Bailly suora at 2 NRC 876. Thus, since the initial decision in the instant pro-ceeding fully sets forth the basis for finding that there are no cumulative impacts, the absence of extensive detailed discussion of cumulative impacts in the document designated as the EIA is of no consequence.
_ 2 ') _.
Contrary to Intervenor's unsupported, conclusory assertion that the "hard look" required by NEPA is lacking,E the Licensing Board found, based on a thorough review of the substantial record and the uncontroverted evidence therein, that the SFP amendment will not result in significant environmental impacts and that the Staff's conclusion in the EIA that a Negative Declaration should be issued is correct.E Nothing raised by Intervenor in this appeal brings these findings into question.
Finally, Intervenor argues that because reduced power output could reduce the rate of generation of spent fuel, allegedly without harm to the public interest, a deferral of the Trojan SFP amendment would not result in substantial harm to the public interest and that such
~
deferral is, therefore, required by the Commission's GEIS Notice.
In its GEIS Notice, published on September 16, 1975, the Commission reviewed the status, at that time, of spent fuel storage throughout the country and stated that it foresaw a " possibility of a future shortage 33/ Intervenor's claim that the EIA evaluation was pro fonna, short and superficial has no bearing on the adequacy of the EIA.
Council on Environmental Quality Guidelines set forth at 40 CFR 51500.6(e) indicate that where an agency determines to prepare a negative declaration, it should prepare "a publicly available record briefly setting forth the agency's decision and the reasons for that detennination" (emphasis added).10 CFR 5 51.7(b) requires only a "sunmary description" of environmental impacts in an EIA. The Staff's EIA in the instant proceeding goes beyond these guidelines and requirements.
34/ Initial Decision Slip Op., para. 90.
. in licensed spent fuel capacity..."El The Commission also found that such shortage "could adversely affect [an] electric utility's ability to meet electrical energy needs or force [a] utility to operate other plants that are less economical to operate or which have greater environmental impact, and thereby adversely affect the public interest".EI The Commission stated that the problem of spent fuel shortage can adequately be addressed "on a case-by-case basis within the context of individual licensing reviews" and that it was not "necessary to develop an overall program of action to deal with the problem".E/ Neverthelass, the Commission does have the " discretion to deal with issues of this type through the exercise of its rulemaking authority and/or the issuance of a ' generic' environmental impact statement...[which might]... serve as the context for the promulgation of more definitive criteria regarding size and design of spent fuel pools and/or the licen;ing of independent spent fuel storage facilities...'.' !
Thus, the GEIS is to serve as a vehicle for profitably examining the issue of spent fuel storage in a broader context than individual licensing proceedings.39/
The Commission also gave " careful consideration to the question whether licensing actions intended to ameliorate a possible shortage of
~
spent fuel storage" should be deferred in the interim period prior to 35/ GEIS Notice, 40 F.R. 42801 (emphasis added).
36/
Id. at 40 F.R. 42802 (emphasis added).
37/ Id.
38/
Id.
39/
Id.
. issuance of the GEIS.4r; In determining. hat individual licensing actions with respect to spent fuel storage should not be generally deferred but shculd proceed in the period prior to issuance of the GEIS, the Commission affirmatively b!
found that:
(1) It is likely that each individual licensing action of this type would have a utility that is independent of the utility of other licensing actions of this type; (2) It is not likely *. hat the taking of any particular licensing action of.his type during the time frame unace consideration we"'d constitute a coninitment of resources that would tend to significantly foreclose the alternatives available with respect to any other individual licensing action of tnis type; (3) It is likely that any environmental impacts associated with any individual licensing action of tSis type would be such that they could adequately be addressed within the context of the individual license application without overlooking any cumulative environmental impacts;
~
(4) It is likely that any technical issues that may arise in the course of a review of an individual license application can be :esolved within that context; and
~
(5) A deferral or severe restriction on licensing actions of this type would result in substantial harm to the public interest. As indicated, such a restriction or deferral cou7d result in reactor shutdowns as existing spent fuel pools become filled.
It now appears that the spent fuel pools of as many as ten reactors could be filled by mid-1978.
These ten reactors represent a total of about 6 million kilowatts of electrical energy generating capacity.
The removal of these reactors from service could reduce the utilities' service margins to a point 40/
Id. (emphasis added).
H/ The Corrrnission characterized these findings as it; " general conclusions". 40 F.R. 42802.
. where reliable service would be in jeopardy, or force the utilities to rely more heavily on less economical or more polluting forms of generation that would impose economic penalties on consumers and increase environmental impacts. E The Comission directed, however, that since the five general findings noted above may not fit every individual licensing action undertaken in the interim period, such individual actions be accompanied by an EIS or an EIA which weighs and balances the five factors within
~
the factua'l context of that particular licensing action.5 It is important to note, first of all, that the Commission has found it has "no overall program of action" with regard to spent fuel storage, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1&2), LBP-77-51, 6 NRC 265 (1977), aff'd in part, ALAB-455, 7 NRC 41 (1978), and that, as such, a generic or programmatic environ-mental impact statement is not required prior to the taking of any individual licensing action related to spent fuel storage. Kleppe v Sierra Club, 427 U.S. 390, 399, 414 (1976).
Rather, the Commission detennined to prepare the GEIS in its discretion as a vehicle to examine the overall problem of spent fuel storage in a broad context with a view toward the possible promulgation of crtieria and/or regulations on spent fuel storage generally.$
P Secondly, the five findings delineated above are, by their plain language, affirmative findings made by the Commission as the basis for 42/ 40 F.R. 42802 (emphasis added).
2 43/ Id.
3 44/ The Comission noted in its GEIS Notice that there are currently no regulations governing size of on-site spent fuel pools. 40 F.R. 42801.
its conclusion that a general deferral of spent fuel storage licensir.g actions E rior to issuance of the GEIS is unnecessary.
For any p
individual licensing action, the Commission was concerned that because of the factual circumstance of that specific case, there might be issues which could not be adequately addressed in that proceeding such that the Commission's findings with regard to general deferral of interim licensing actions would, on balance, be inapplicable to the case in question.
~
The Commission, therefore, directed that the five factors be weighed and balanced in each individual proceeding to assure that there was nothing so unique and different from the nom in that licensing action as to call for deferral until the GEIS is issued. The Commission called for a weighing and balancing of the five factors. While Intervenor asserts that
~
the fifth factor - substantial ham to the public interest - is the "most weighty," that factor was not singled out by the Comission as requiring special consideration.
Had the Commission intended that the
~
fifth factor be given special reight, it would have said so.
In addition, even though the Commission's GEIS Notice was a result of the Commission's perception of a "possible" future shortage of spent fuel storage capacity, no wi.;re has the Comission indicated that interim if censing actions prior to GEIS issuance may proceed only if shutdown of the facility because of lack of spent fuel storage capacity is imminent.
If such a restriction on interim licensing were intended, it too would have been clearly stated 45/ " Licensing actions" here include "such actions as the issuance of operating license amendments to pemit increases in the storage capacity of reactor spent fuel pools or reprocessing plant spent fuel pools or the licensing of independent spent fuel storage facili ties..." 40 F.R. 42802.
. by the Commission in its GEIS Notice.
Moreover, in the Staff's view, the Commission intended that the five factors be weighed and balanced in the context of unrestricted operation of the facility, with the attendant spent fuel generation rate permitted by the operating license and contemplated at the time it was issued. Again, had the Commission intended that the five factors, including the factor related to " substantial harm to the public interest", be weighed and balanaced in the context of restricted operation not required by the operating license, it would have said so.
Similarly, there is nothing in the Commission's GEIS Notice to indicate that the required weighing and balancing of the five factors should entail a reexamination of the need for power or need for the facility.
These are matters which were considered and resolved during the initial licensing stages for the facility and, absent Commission direction to the contrary, need not be relitigated in conjunction. with an SFP amend-ment which has no bearing whatsoever on need for power.
Contrary to the attempt being made by Intervenor here, this proceeding and the necessity to consider the five factors of the GEIS Notice cannot be used as a pretext
~
to reconsider the need for Trojan.
Thus, Intervenor's assertions about availability of hydroelectric power, energy demand growth levels and overbuilding of generating facilities are inmaterial.
Finally, while the evaluation of each of the five factors of the GEIS Notice was not the subject of contentions in this proceeding and was, therefore, not a matter before the Licensing Board, Intervenor claims on
. appeal that, on balance, the five factors weigh in favor of deferral of the CFP modification. Although, apart from the fifth factor, Intervenor fails to address the matter in any detail or indicate why the evaluation of each factor and the overall balancing is insufficient to support issuance of the amendment, an examination of the evidence and of the Licensing Board's findings reveals that Intervencr is simply wrong.
As to the first factor, there appears to be no dispute that the Trojan SFP amendment will have a utility independent of other licensing actions of the type and that the first factor weighs in favor of granting of the application.$ Based on the record, the Licensing Board found that the second factor - commitment of resources that would foreclose alternatives - was adequately evaluated. E This finding is fully supported by the evidence which demonstrates that the proposed modifica-tion does not represent a significant commitment of resources of any type,E and will thus not tend to significantly foreclose other alterna-tives available with respect to any other individual licensing actions of this type.E This factor thus weighs in favor of the amendment. With regard to the third factor - liklihood that cumulative impacts would be overlooked in this individual licensing action - cumulative impacts, as 4_6f See Initial Decision Slip Op., p. 54, para. 86; Intervenor's Brief,
- p. 5 and Oregon's Proposed Finding 59, generally referenced in Intervenor's Brief.
4_7_/ Initial Decision Slip Op. pp. 54-55, para. 86.
48/ Staff Exh. 18, 9 8.3.
4,9] Staff Exh. 18, 55 8.3, 8.4(2); Testimony of Clark fol. Tr 5692,
- p. 9.
. previously discussed, were evaluated and found to be non-existent because of the insignificant and totally localized nature of the environmental impacts resulting from the Trojan SFP amendment and similar amendments elsewhere in the country.E This factor, therefore, militates in favor of issuing the Trojan SFP amendment. The fourth factor relates to the existence of technical issues which cannot be resolved in t:ia individual licensing action. Although the Licensing Board identified one technical concern - the carrying of heavy objects which could impact upon stored spent fuel - which was not totally resolved to its satisfaction prior to the hearing, the Board imposed a license condition on the handling of heavy objects over stored spent fuel which totally resolved this matter.b Thus, there remains no unresolved technical issue and the fourth factor weighs in favor of issuing the amendment.
The fifth factor - liklihood that deferral of the license amendment could result in substantial harm to the public interest - was considered in detail. While there is no evidence to indicate that the Trojan facility is in iminent danger of shutting down for lack of spent fuel storage capacity, there is no requrement that substantial harm to the public interest can only be found if shutdown is iminent. Nevertheless, substantial and uncont averted evidence on the record shows, and the Licensing Board found, that full core discharge capability for the un-
_50/ See Initial Decision Slip Op., Paragraphs 83, 86.
5_l] See Initial Decision Slip Op., Paragraphs 25, 86.
. modified SFP will be lost after the second refueling of Trojan S and that there is a probability of 0.5 that a full core discharge for inspection or maintenance purposes would be required in the period between the second refueling and the filling of the unmodified SFP.
If this situation were to arise, and there is a significant possibility that it might, shutdown of the reactor would occur even before the unmodified SFP were filled from normal refuelings.El While this possibility is not as inninent or certain as in the case where a facility's SFP is full, the Licensing Board found, and the Staff agrees, that there is a significant potential for substantial harm to the public interest here.
Thus, the fifth factor weighs in favor of or, at worst, is neutral with regard to, issuanceoftheSFPamendment.E As previously indicated, Intervenor's g/ The first refueling occurred in March 1978 (Initial Decision Slip Op. p. 56).
Because of an extended shutdown of Trojan from March 1978 due to design deficiencies in the Control Building (the Staff is of the view that official notice, pursuant to 10 CFR 5 2.743(f),
may be taken of the fact that Trojan was shutdown for an extended period from March 1978 and that, on December 22, 1978, pursuant to a Partial Initial Decision issued by an Atomic Safety and Licensing Board, Portland General Electric Co. (Trojan Nuclear Plant), LBP,
NRC (Dec. 21, 1978), startup and operation of the facility in its as-built condition was authorized), the second refueling, scheduled for the Spring of 1979, may be delayed.
5_3/ Initial Decision Slip Op., p. 56.
-54/ The possibility that the second refueling (the point at which full case discharge capability will be lost) might be delayed (see foot-note 52) does not call for a deferral of issuance of the SFP amendment until after the GEIS is issued. Although the draft GEIS was issued in early 1978, the final GEIS has not been issued.
The Commission did not indicate that individual licensing actions should be deferred if the GEIS is about to be issued but, instead, indicated that a detennination as to deferral should be based on a weighing and balancing of the five factors.
- :9 -
assertions as to reduced power output are imaterial to a consideration of the fifth factor and her claim that the fifth factor should be accorded tha most weight is unsupported aru erroneous.
Based on the foregoing, it is clear that at least four of the factors weigh strongly.in favor of the Trojan SFP amendment and that the fifth factor is, at worst, neutral.
These factors were, as the Licensing Board found, adequately evaluated,El and the evaluation shows that, on balance, the Commission's general findings in the GEIS Notice apply to the instant licensing action and dictate that this action not be deferred pending issuance of the GEIS.
Intervenor's appeal in this regard should thus be rejected.
III. Conclusion Based on the foregoing, Intervenor's Appeal, in its totality, is without merit and should be rejected. The relief requested by Intervenor in Part.II of her Brief on Exceptions dated November 22, 1978 should be denied in toto and the Licensing Board's decision affirmed.
Respectfully submitted
?f 4
u ose' R. Gray Cou sel for NRC Staf Dated at Bethesda, Maryland this 8th day of January,1979.
5_5/ Initial Decision Slip Op., para. 87.
5
UNITED STA" ES OF A.':ERIC.i NU CLEAR REGULATORY CO.',lI5SION BEFORE THE ATOMIC SAFETY ATID LICENSING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC
)
Docket No. 50-344 COMPANY, ET AL.
)
(Proposed Amendment to Facility
)
Operating License NPF-1 to Permit (Trojan Nuclear Plant)
)
Storage Pool Modification)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN OPPOSITION TO EXCEPTIONS OF INTERVENOR SUSAN M. GARRETT" (Dated January 8,1979) in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 8th day of January,1979:
Sheldon J. Wolfe, Esq., Chairman
- Warren Hastings, Esq.
Atomic Safety and Licensing Board Counsel for Portland General U.S. Nuclear Regulatory Commission Electric Company Washington, D. C. 20555 121 S. W. Salmon Street Portland, Oregon 97204 Dr. Frederick P. Cowan, Member Apt. B-125 Richard M. Sandvik, Esq.
6152 N. Verde Trail Counsel for Oregon Energy Facility Boca Raton,-Florida 33433 Siting Counsel and Oregon Department of Energy
~
Mr. Frederick J. Shon, Member *
- 00 Pacific Building Atomic Safety and Licensing Board 520 S. W. Yamhill U.S. Nuclear Regulatory Commission Portland, Oregon 97204 Washington, D. C. 20555 Mr. David B. McCoy Susan M. Garrett 348 Hussey Lane 7325 S.E. Steele Street Grants Pass, Oregon 97526 Portland, Oregon 97206
Ms. Sh run S. 'IcKeel Ato:nic Safety and Lunsing P. O. Bex 6786 Doarc Panel
- Pertland, Oregon 97208 U.S. Nudear Regulatory Commission Washington, D. C. 20555 John J. Haugh, Esq.
O'Connell, Goyak & Haugh, P.C.
Atomic Safety and Licensing 555 Benjamin Franklin Plaza Appeal Panel
- One Southwest Columbia U. S. Nuclear Regulatory Commission Portland, Oregon 97258 Washington, D. C. 20555 Alan S. Rosenthal, Esq., Chairman
- Docketing and Service Section
- Atomic Safety and Licensing Office of the Secretary Appeal Panel U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555
~
Washington, D. C. 20555 Dr. John H. Buck
- Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. W. Reed Johnson
- Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555
%*h
"/
J6seph R. Gray' doundel for NRC taff