ML19262A576
| ML19262A576 | |
| Person / Time | |
|---|---|
| Site: | Big Rock Point, Salem File:Consumers Energy icon.png |
| Issue date: | 11/29/1979 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML18081A723 | List: |
| References | |
| NUDOCS 7912070076 | |
| Download: ML19262A576 (32) | |
Text
a
(
11/29/79
/
UNITED STATES OF AMERICA fiUCLEAR REGULATORY C0",'ilSSION
~Y BEFORE_ THE AT0r41C SAFETY AND LICENSING BOARD.
f-7 r
In the Matter of
)
)
C0fiSUMERS POWER COMPANY
}
Docket No. 50-155
)
(Big Rock Point Nuclear Power
)
Station)
)
4RC STAFF RESPONSE TO CONTEfCIONS OF CHRISTA-MARIA AND TO CONTENTI')NS OF J0MN P. O'NEILL, II Pursuant to Orders of the Atomic Safety and Licensing Board (Board) issued on October 24, 1979 and flovember 5,1979, the Staff of the Nuclear Regulatory Commission (Staff) hereby responds to the restated contentions of Christa-Maria and the the restated contentions of John P. O'Neill, II, both filed on November 20, 1979.
For the reasons set forth below the Staff believes:
1)
Christa-Maria's Contentions Nos.1 and 8 are inadmissible as contentions in this proceeding as a matter of law and Commission policy;
- 2) Christa-Maria's Contentions Nos. 7 and 9 are inadmissible in their present form since they represent a challenge to Comission regulations and do not meet the showing of special circumstances required by 10 C.F.R. 52.758(b);
- 3) John P. O'Neill's Contentions Nos. I.B.5, II.B and II.E.3 are admissible as contentions in this proceeding provided the Staff's interpretation is accepted;
- 4) John P. k'Neill's Contentions Nos. II.F and IV are admissible as contentions in this proceeding in their present fami; and
- 5) John P. O'Neill's remaining contentions except for II.C and II.E are inadmissible for lack of basis, vagueness,INuse they are beyond the scope 1522 D%,
7912070
,, ' of this proceeding, or because they constitute a challenge to the Commission's regulations.
4 Christa-Maria's Contentions Nos. 2, 3, 4, 5 and 6 are the subjects of a Stipulation entered into by representatives of Christa-Maria, Consumers Power Company (Consumers) and the NRC Staff on November 26,1979 and previously filed with this Board. The Staff's position regarding these contentions is expressed in that Stipulation and will not be reiterated in this response. The Staff hereby asks leave of the Board to state its position concerning Contentions Nos. II.C and II.E orally at the time of the prehearing conference.
1522 200
- i..$
BACKGROUND On October 11, 1979, the Board issued an Order scheduling a prehearing conference in the above-captioned proceeding for November 14-15, 1979.
In that Order the Board stated that contentions in the proceeding must be filed 15 days before the prehearing conference.
Board Order at 1.
The filing date fell on October 30, 1979. Two Petitioners, Christa-Maria acting through counsel, and John P. O'Neill, II, atting pro se, filed contentions on that date.
By Order dated November 5,1979 the prehearing conference was postponed until December 5-6, 1979 in part to give the parties a further chance to conduct negotiations concerning the contentions filed on October 30, 1979. This response reflects the results of those negotiations.
On November 14, 1979, representatives of Christa-Maria, Consumers and the NRC Staff met and reached agreement concerning certain of Christa-Maria's contentions. The terms of this agreement are expressed in a Stipulation filed with the Board on November 26, 1979.
On November 14, 1979 a telephone conversation was held between John P. O'Heill, II, and the NRC Staff to attempt to reach some agreement concerning his contentions.
No agreement was reached at that time. Mr. O'Neill filed another set of 1522 201
?
-. contentions on November 20, 1979, and the Staff is herein responding to those contentions rather than the ones filed on October 30, 1979.
[
4 I.
CONTENTIONS OF CHRISTA-MARIA A.
The Board Lacks Jurisdiction to Admit Contention No. 1 as a Contention in This Proceeding.
Contention No.1 states as follows:
1.
The NRC is prohibited from allowing the expansion of the spent fuel pool at the Big Rock Nuclear Power Plant until it has completed its " waste confidence" rulemaking proceedings (44 Fed. Reg. 61372, October 25, 1979).
If the Commission finds in this generic proceeding that there is no reasonable assurance that facilities for off-site storage or permanent disposal of the spent fuel will be available before the expiration of Big Rock's operating license, the procedures to be established by the Commission (44 Fed. Reg. 61373) must be followed to determine whether spent fuel can be stored safely at this site.
The basis for this contention is the decision of the Court of Appeals for the District of Columbia Circuit in State of Minnesota v. U.S. Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir.1979), which directs the NRC to address these issues.
In response to the Court's order the NRC has initiated a generic proceeding.
As noted by Petitioner, a notice appeared in the Federal Register on October 25, 1979, announcing a proposed generic rulemaking proceeding in which the Commission will 1) reassess its confidence that safe off-site disposal of radioactive waste from licensed facilities will be available;
- 2) determine when any disposal or off-site storage will be available; and
- 3) if disposal or off-site storage will not be available until after the expiration of the licenses of certain nuclear facilities, detennine whether the waste generated by those facilities can be safely stored on-1522 202
,. site until such disposal is available. 44 Fed. Reg. 61372-73 (October 25, 1979). This notice sets forth the purposes of the proceeding and the procedures to be followed therein. The Comission also stated in that notice
-1 that the issues to be covered in the generic proceeding are not to be considered in individual licensing proceedings, but that safety implications and environmental impacts of radioactive waste storage on-site for the duration of the license will continue to be subjects of adjudication in individual licensing proceedings. M. The Commission points out that licensing practices need not be altered during the generic proceeding. M.
The Commission cited as support for its position the fact that the court in the case of State of Minnesota v. NRC, 6u2 F.2d 412 (D.C. Cir.1979), while remanding the matter to the Commission declined to either stay or vacate the facility license amendments which were the subject of that case. 44 Fed. Reg. 61372-3. This is not the first time the Commission has been involved in similar situations.
See Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974). The Appeal Board in that case ruled that the Commission has the flexibility to engage in a rulemaking proceeding while continuing in the interim to rely on other adjudications to resolve remaining questions. M. at 84. This position has also previously been supported in the courts.
U.C.S. v. AEC, 499 F.2d 1069 (D.C. Cir.1974).
The court there stated that "if the agency could not consolidate the challenges to its rules into rulemaking and meanwhile proceed with adjudications, UCS and other intervenors in other cases would effectively be able to impose a moratorium on licensing, despite the Commission's judgment that it is prompt 7
action that is called for." M.
at 1081-82.
1522 203
,. The Comission has made its position clear on the question of whether individual licensing proceedings should be deferred pending the outcome of its generic proceeding, and the licensing board is bound to follow this expressed 4
Comission position. See 10 C.F.R. Part 2, Appendix A; in the Matter of Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603, 605(1977).
See also U.S. v. Leichtfuss, 331 F.Supp. 723, 729 (N.D. Ill. E.D.
1971). Therefore, the Board lacks jurisdiction to admit Contention No. 1 as a contention in this proceeding. _1/
_1/ On November 7,1979, a Motion was filed on behalf of Christa-Maria before the Commission in which Christa-Maria requested reconsideration of its decision as set forth in the Federal Register notice dated October 25,1979.to allow spent fuel pool proceedings to continue during the pendency of the generic proceeding. The Motion raises the same question which is contained in Contention No. 1.
This Motion is still pending before the Commission.
T 1522 204
y s B.
The Parties Have Stipulated to the Admissibility of Contention Nos. 2 and 3.
I Contention No. 2 states as follows:
}
2.
The increa,e in fuel stored in the Big Rock pool will result in an increase in the amount of radiation released to the environment at the scath wall of the storage pool where there is less shielding, according to the Licensee's Description and Safety Analysis. This increment in the level of radiation released to the environment enhances the risks to the health and safety of the public in the vicinity of the plant.
Contention No. 3 states as follows:
3.
The use of type 304 austenitic stainless steel in the new spent fuel storage racks could lead to corrosion cracking in the pool environment, with a resultant risk to the integrity of the racks and the continued safe storage of the fuel.
J.R. Weeks in his July,1977 report on
" Corrosion of Materials in Spent Fuel Storage Pools" has indicated that "[s] tress corrosion of stainless steel components or zircaloy cladding cannot be entirely ruled out because of the lack of understanding of the stress states and the degree of sensitization of stainless steel" (p.10).
On November 26, 1979, the NRC Staff, Consumers Power Company and Christa-Maria entered into a stipulation in which it was agreed that revised Contentions Nos. 2 and 3 are admissible as contentions in this proceeding.
Therefore, the Staff takes no further position regarding these contentions.
C.
Contentions Nos. 4, 5, and 6 Have Been Conditionally Withdrawn by Christa-Maria.
In the Stipulation filed on November 26, 1979 the Parties agreed to the conditional withdrawal of Contentions Nos. 4, 5, and 6.
Therefore, the Staff will take no position regarding there contentions at this time.
It should be noted that the stipulation reserves the rights of the NRC Staff to present certain objections to Contentions Nos. 4, 5, and 6 should they be filsd at a later time. See Stipulation Among NRC Staff, Christa-Maria and Consumers Power Company (November 26,1979)at3.
1522 205
?
- D.
Contention No. 7 is not Admissible as a Contention in This Proceeding Because it is Vague and C%1d Represent a Challenge to the Commission's Regulations Which is Prchibited by 10 C.F.R. 62.758.
f 4
Cont ion No. 7 states as follows:
7.
The levels of airborne radiation released to the atmosphere through the containment ventilation system will be increased as a result of the storage of additional spent fuel. This increased level of radiation presents an unacceptable risk to the health of residents in the vicinity of the plant.
Petitioner here contends that increased airborne releases of radiation presents an " unacceptable risk to the health of residents in the, vicinity of the plant." There is no definition of the term " unacceptable risk" in the contention.
This tera could be construed to mean that even though the increase irt airborne releases of radioactivity does not violate either 10 C.F.R. Part 20 or Appendix I to 10 C.F.R. Part 50 of the Commission's regulations the risk still remains unacceptable.
Such an allegation would be a challenge to the Commission's regulations.
Such challenges are prohibited by 10 C.F.R. 52.758 unless Petitioner can,make the showing necessary to gain a waive.r or exemption from this regulation as set forth in 12.758(b). No such showing has been made by Petitioner with respect to Contention No. 7.
Since Contention No. 7 is subject to this as well as other interpretations, it must be considered vague and, therefore, not in compliance with 10 C.F.R. 82.714.
It should, therefore, not be admitted as a contention in this proceeding.
1522 206
?
_9 E.
Contention No. 8 is Inadmissible as a Contention in This Proceeding as a Matter of Law and Commission Policy.
Contention No. 8 states as follows:
[
8.
The requested license amendment may not be granted 4
until the NRC has considered the consequences of a Class 9 accident at the Big Rock plant. The occurrence of a Class 9 accident at Three Mile Island Unit No. 2 on March 28, 1979, establishes that such accidents are credible events and must be considered by the NRC. Due to the increase in the total amount of highly radioactive spent fuel that would be stored at the plant, a Class 9 accid?nt in any way related to the spent fuel could result in significantly greater risk to the public hea sth and safety than would be the case if the increased storcge were not allowed.
Petitioner here contends that Class 9 accidents should be considered in this spent fuel pool expansion proceeding.
The appeal board has held on numerous occasions that, absent special circumstances demonstrating that a particular event which would be characterized as a Class 9 event has a greater probability of occurring at a particular reactor, Class 9 accidents are not to be considered in individual licensing proceedings.
Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 210 (1978); Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-355, 4 NRC 397, 415 (1976); Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 407-8 (1974); Long Island Lighting Company (Shoreham Nuclear Power Station), ALAB-156, 7 AEC 831, 836 (1973).
This position was based on the appeal board's interpretation of the proposed Annex to Appendix D to 10 C.F.R. Part 50. The position that Class 9 accidents need not be considered in NRC proceedings has also been upheld by the courts.
Porter County Chapter of Izaak Walton League v. AEC, 533 F.2d 1011,1017 1522 207
(7th Cir.1976); Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1088-91 (D.C. Cir.1974); Carolina Environmental Study Group v. U.S.,
-P 510 F.2d 796, 798 (D.C. Cir.1975). The Commission has not, as yet, 4
elected to change this position with regard to land-based plants.
See in the Matter of Offshore Power Systems, (Floating Nuclear Power Plants), CLI-79-9,10 NRC (September 14, 1979), slip op. at 9.
The Commission in Offshore Power Systems (OPS) stated that it was neither necessary nor appropriate to consider land-based plants in the OPS proceedings.
_I d. Therefore, until the Commission changes its position regarding the consideration of Class 9 accidents in proceedings involving land-based plants, the appeal board's position on this question and its interpretation of the proposed Annex to Appendix D to 10 C.F.R. Part 50 as expressed most recently in ALAB-489 must be viewed as controlling. See Pennsylvania Power & Light Company and Allegheny Electric Cooperative, Inc.
(Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-29, NRC (October 19, 1979), slip op. at 9.
(Attachment A).
Petitioner contends that the occurrence of a Class 9 accident at Three Mile Is'and establishes that such events are credible, and so must be considered by the NRC.
The determination that the accident which occurred at Three Mile Island fits the definition of a Class 9 accident as set forth in the proposed Annex to Appendix D of 10 C.F.R. Part 50 was made by the Staff in its NRC Staff Response to Board Question No. 4 Regarding the Occurrence of a Class 9 Accident at Three Mile Island, in the Matter of Public Service Electric & Gas Company (Salem Nuclear Generating Station, Unit No.1),
August 24, 1979.
(Attachment B). The exact meaning of the term "such 1522 208
' cccident:" as used in this contention is somewhat vague. The Staff interprets this to mean that Class 9 accidents in general have become credible events
[
4 and so should be considered. A similar proposition was recently rejected by a licensing board. See Susquehanna, supra.
For this contention to be admitted in the present spent fuel pool proceeding, Petitioner must show that an accident which would be viewed as a Class 9 accident and which would involve the expanded spent fuel pool is more likely to occur at the Big Rock facility than at other land-based plants. No such showing was made in Contention No. 8.
In the event that the words "such accidents" were intended to refer to the occurrence of a TMI-2 type accident at Big Rock, Petitioner has still failed to meet the showings required by ALAB-355 and ALAB-226, s_upla_. They have not shown that an accident of the type which occurred at Three Mile Island would be rr. ore likely to occur at the Big Rock facility than at other land-be. sed plants, and that it would have an effect on the expanded spent fuel pool at that facility.
Petitioner has not even made the allegation which was accepted in Susquehanna, supra--
a more assertion that a TMI-2 type accident could occur at Big Rock. The Staff believes, Sowevar, that such en assertion were it made would still not make the showing required of ALAB-355 and ALAB-226, supra.
For the reasons set forth above, Contention No. 8 is not admissible as a contention in this proceeding as a matter of Commission law ana policy.
1522 209
' F.
Contention No. 9 is not Admissible as a Contention in This Proceeding Since it is Outside the Scope of the Proceeding and Constitutes a Challenge to the Commissita's Regulations Which is Prohibited by 10 C.F.R. 62.758.
a 4
Contention No. 9 states as follows:
9.
The events at TMI-2 showed the inadequacy of NRC emergency planning requirements.
Emergency planning beyond the LPZ is a recognition of the residual risk associated with major reactor accidents whose consequences could exceed those associated with so-called design basis events.
In the context of spent fuel pool expansion, emergency planning must be based on a worst case analysis of potential accident consequences related to the spent fuel pool.
In particular, it must take into account the significant increase in radioactive spent fuel that will be stored at the plant if this License Amendment is granted.
Petitioner' contends that an emergency plan must be based on a worst case analysis of potential accident consequences related to the spent fuel pool.
The Commission has established certain minimum requirements for emergency plans related to individual facilities. Appendix E to 10 C.F.R. Part 50.
There is no ind. cation that these requirements have been violated at the Big Rock facility.
Petitioner does not indicate that the increase of radioactive material in the spent fuel pool will remove the approved emergency plan from compliance with the Commission's present emergency planning regulations.
Therefore, this contention constitutes a general attack on the Commission's emergency planning regulations _2] and is outside the scope of this spent fuel pool expansion proceeding.
Petitioner has not made the showing required by 10 C.F.R. 52.758(b) of special circumstances
_2/ It should be noted that on July 17, 1979, the Commission issued an advance notice of intent tr conduct rulemaking on the Adequacy and Acceptance of Emergency Planning Around Nuclear Facilities. 44 Fed.
Reg. 41483-34 (J y 17,1979). This rulemaking proceeding would provide a forum for Petitioner to make her general conccens about emergency planning known to the Commission.
1522 210
- 13 sufficient for the Board to grant a waiver or exemption to allow a challenge to the Commission's emergency plannir.g regulations in this individual
-P licensing proceeding. Therefore, Contention fio. 9 should not be admitted 2
4 as a contention in this proceeding.
1522 211 II.
CONTENTIONS OF JOHN P. O'NEILL, II A.
The Board Lacks Jurisdiction to Admit Contentions Nos.1, I. A.,
I.B.1-4, and I.B.6-7 as Contentions in This Proceeding as a Matter of Law and Commission "
Policy.
4 These Contentions state as follows:
1.
The license hearing should be delayed until the issue of long-term ;isposal of wastes is decided in the scheduled generic hearing. This has been est-blished in The State of Minnesota vs. USNRC, 602 F.
. 41 2 (D.C. Cir.1979) and makes good sense; an issue of vitel importance to the increased storage facility has riot yet been examined, and the board must wait until o decision has been reached.
Presently, it is likely that the increased fuel assemblies will have to remain at Big Rock beyond the expiration of the plant's license. If this occurs, the public's right to a full licensing review of long-tenn storage will have been denied, because there will simply be nothing to do with the increased amount of spent fuel assemblies, save store them at Big Rock. Due process will have been denied citizens because the licensing proceeding does not address the issue of long-term storage.
I.
Consumers Power cannot guarantee that the spent fuel pool will not be used to store these materials indefinitely, that is on a more or less permanent basis.
A.
No off-site storage facilities are open now, and it is unlikely that any will become available in the foreseeable future.
1.
Reprocessing plants are unprofitable.
2.
There is high citizen resistence to toxic waste storage, which would significantly hinder new site opening.
3.
There is no proven method known for long-tenn, permanent storage.
B.
Consumers Power should be denied a license for this short-tenn storage facility expansion until it can demonstrate convincingly that there will definitely be safe off-site storage by 1990.
1.
No evidence of any type shows that off-site storage will be available is presented in the licensing request.
1522~212
2.
The Vermont Yankee and Minnesota plant proceedings revealed that the power companies us well as the NRC know of no solut!on to the waste disposal problem.
3.
In the event that the license is granted and no solution 4 to this storage problem is found by 1990, Consumers Power will have been granted a " license" to store radioactive wastes at the Charlevoix facility indefinitely by merit of necessity, not t..muah Droper licensing hearings.
4.
The power company is unable to assure the public that the increased number of spent fuel rods will ever leave the Charlevoix area.
6.
The same questions become more important beyond the expiration of the plant's license, when considering the safety of an expanded fuel pool, for the above reasons, and because of the effects of time.
~
7.
Consumers Power has not demonstrated that it will remain solvent indefinitely and thus remain able to indefinitely maintain the fuel pool and its increased load of waste.
Petitioner contends that: 1) certain issues relating to the permanent disposal of spent fuel from the Big Rock facility should be discussed in this license amendment proceeding; and 2) that this proceeding should be delayed pending the completion of the generic proceeding.
As discussed in Section I.A.,
supra, the Commission in its federal Register notice of October 25,1979 has stated that issues which will be part of the generic proceeding concerning pemanent waste storage or disposal are not to be considered in individual adjudicatory proceedings. 44 Fed. Reg. 61373.
The three major issues to be discussed in a generic proceeding are: 1) the Commission's confidence that safe off-site disposal of radioactive waste from licensed facilities will -
be available; 2) when any such disposal or off-site storage will be available; and 3) if off-site disposal or storage will not be available until after the 1522 213
expiration of the licenses of certain nuclear facilities, whether the waste generated by those facilities can be safely stored on-site until such disposal
-4' is available.
Id.
The Commission has stated that if it determines that a
4 on-site storage after license expiration may be necessary or appropriate, it will issue a proposed rule providing how that question will be addressed.
I d..
All of the concerns expressed by Petitioner will either be dealt with in the generic proceeding or, if the Commission determines that on-site storage after the expiration of certain licenses is necessary or appropriate, will be addressed in a manner consistent with tha rule promulgated by the Commission at the the end of the generic proceeding.3] Petitioner's contentian concerning the necessity of deferring this proceeding untii the completion of the generic proceeding is very similar to Contention No.1 filed by Christa-Maria, which is treated in Section I.A. of this response. The position taken by the Staff with respect to that contention applies to this contention as well, and will not be reiterated here in great detail. The Commission has taken the position in its Federal Register notice of October 25, 1979 that licensing practices need not be altered because of the generic proceeding, and the Board is bound by that position. Therefore, the Board lacks jurisdiction to entertain the issues of whether this proceeding should be deferred, and whether certain issues to be covered by the generic proceeding or its outcome should be included in this individual licensing proceeding.
For the reasons stated above, Contentions Nos.1, I. A.,
I.B.1-4, and I.B.6-7 should not be admitted as contentions in this proceeding.
1522 214
_3/
It should be noted that the Big Rock license expires in the year 2000, and not in the year 1990--the year which Petitioner has chosen as the time by which off-site storage must be available.
It is possible that Petitioner chose this date since 1990 is the point at which the expanded spent fuel pool would be filled.
Such a date, however, is not relevant to a contention concerning long-term waste disposal. The relevant date is the expiration of the Big Rock operating license.
B.
Contention No. I.B.5 is Admissible as a Contention in This Proceeding.
Contention No. I.B.5 states as follows:
0 7
4 I.B.5.
If the stresses of expanded storage continue to the time that the plant's license expires there is inadequate assurance in the application that the materials used in the racks, the integrity of the fuel tank itself, and the cladding and fuel assemblies will remain r 'inged, safe and functional, a.
Stainless steel decomposes over time.
Example at Big Rock found in incident that occurred October 19, 1978 and was reported March 7, 1979.
b.
The chance of release of radioactivity into the environment increases as the structures decay and as greater lengths of time allow probability of accident.
Petitioner contends that there is inadequate assurance in the application that the materials used in the racks, the integrity of the fuel rack itself, and the cladding and fuel assemblies will remain " unchanged, safe and functional" until the expiration of tne Big Rock operating license.
The Staff helieves that these are appropriate matters for adjudication.
- However,
" unchanged, safe and functional" are very broad terms and could be more clearly defined by Petitioner. The Staff, looking at the basis provided for this contention, interprets the contention to mean that there is not adequate assurance that the materials used in the racks' fuel tank, cladding and fuel assemblies will remain unchanged, safe and functional due to the corrosion of such materials. As interpreted above, the Staff believes this 1
contention is admissible as a contention in this proceeding.
1522 215
C.
Contention No. I.B.8 Fails to Meet the Requirements of 10 C.F.R. 52.714, and, Therefore, is not Admissible as a Contention in This Proceeding.
-V 2
Contention No. I.B.8 states as follows:
4 I.B.8.
The present request includes an important, unstated but understood alteration of the sense of the original license.
The original license was issued with the understanding that the spent fuel assemblies would be removed about one year after being removed from the reactor. This amendment as written requests an increase in the lumber of fuel rods that may be stored.
But the issue of how long they may be stored is not addressed, and one would assume that the one year term of the original license would still be in effect.
However, the pool is to be expanded precisely to allow extended storage, without subjecting this issue to the proper This would then occur if the amendment is issued, without proper licensing or proper public hearing.
Only the problem of increased capacity, not increased length of storage is addressed in the proposed amendment.
The request as written should be denied.
Petitioner seems to be contending that this amendment would somehow be a violation of Big Rock's operating license, since it would allow storage of spent fuel in the spent fuel pool for longer than one year. The Staff acknowledges that previously it was assumed that spent fuel pools would o'ly be needed as short-term storage facilities.
However, this assumption was not incorporated in any way into the Big Rock operating license. The Petitioner does not point to any portion of that operating license which limits the amount of time for which fuel may be stored in the Big Rock spent fuel pool. Therefore, this portion of Contention No. I.B.8 lacks basis.
Petitioner also seems to be contending that the length of time the fuel will be stored in the Big Rock spent fuel pool will not be addressed by 1522 216
- the proposed amendment.
However, Petitioner has raised the issue of the effects of increased storage for the term of the license, and the Staff 4-has agreed that this is an appropriate matter for litigation in this 2
4 proceeding.
See Contention No. I.B.5, supra. Therefore, this portion of the ccntention also lacks basis.
For the reasons set forth above, Contention No. I.B.8 is not adinissible as a contention in this proceeding.
D.
Contention No. II.A is Inadmissible in its Present Form.
Since it is lague and may Constitute a Challenge to the Commission's Regulations Prohibited by 10 C.F.R. s2.758.
Contention No. II.A states as follows:
II. All releases of radioactivity from the spent fuel pool will be aggravated by an increase in the amount of spent fuel stored in the pool of Big Rock.
Release of Radioactivity A.
Routine release of radioactivity may cause health and environmental hazards.
Releases include exposure of 27 one time rads to workers installing new racks, releases in evaporation, and through the walls and floor of the pool, especially the South wall.
It must be kept in mind that the expansion allows the routine releases during core off-loading to continue, and the safety of these releases is the important issue.
1.
Many top scientists and doctors assert sit'i scientific studies that there is no safe level of radiation, no threshold below which a person is safe from carcinogenic and mutagenic effects of radiation.
Ernest J. Sternglass, Low-Level Radiation Dr. Helen Caldicott, Nuclear Madness Petitioner seems to be contending that the increased releases from an u
expanded spent fuel pool may cause health and environmental hazards.
Petitioner makes no mention of whether or not he believes these releases will violate the Commission's regulations.
If Petitioner is saying that 1522 217
an increase in the release of radioactivity, whether or not it violates the Commission's regulations presents health and environmental hazards, Petitioner is challenging these regulations.
Such challenges are prohibited 4
in individual adjudicatory proceedings under 10 C.F.R. 52.758.
Petitioner has not made the showing of special circumstances required under 10 C.F.R. 62.758(b) in order to be granted a waiver from this prohibition.
If this contention could be construed to mean that the releases mentioned by Petitioner do not comply with 10 C.F.R. Part 20, the requirement in 10 C.F.R. 550.36(a) that releases to unrestricted areas be maintained as low as reasonably achievable, or with the numerical guides of Appendix I to 10 C.F.R. Part 50, then it would be an admissible contention in this proceedingt However, due to its vagueness in its present form this contention should not be admitted.
E.
Contention No. II.B is Admissible as a Contention in This Proceeding.
II.B.
The environmental hazards associated with small to medium leaks of radioactive water from the pool is not discussed.
Such leaks have occurred in Big Rock Plant on August 29,
'78, reported September 27, '78, and September 11, '79, reported October 10, '79 and other times, and water assumed to be safe was released on August 19, '78 and reported November 26, '78.
The Staff interpretation of Contention No. II.B is that the environmental hazards of small and medium leaks of radioactive water from the expanded spent fuel pool have not been considered. This interpretation incorporates into the contention the sentence Petitioner has added to Contention No. II stating:
"All releases of radioactivity from the spent fuel pool will be aggravated by an increase in the E. mount of spent fuel stored in the pool of Big Rock."
1522 218
Though more specificity as to exactly what 2nvironmental hazards are of concern to Petitioner would be desirable, the Staff believes that the contention as interpreted above is admissible as a contention in this 4
proceeding.
F.
The Staff Asks Leave of the Board to Make its Position on Contention No. II.C Known at the Time of the Prehearing Conference.
Contention No. II.C states as follows:
II.C.
The environmental impact of a loss of coolant accident in the pool is not discussed. This is odd, for on p. 2-3 of the licensing request, a loss of pool water up to 200 gpm is considered possible enough to protect against, the effect of the release of all of this water is not considered.
Petitioner. contends that the environmental impact of a loss of water accident in the spent fuel pool is not discussed.
Some information has come to the attention of Staff counsel which makes further consideration of whether or not the Staff should support this contention necessary.
Therefore, the Staff asks leave of the Board to state its position orally at the prehearing conference on this contention.
G.
Contention No. II.D is Inadmissible as a Contention in This Proceeding as a Matter of Law and Cormiission Policy.
Contention No. II.D states as follows:
II.D.
Cataclysmic breach of the containment and loss of coolant is not considered, nor is the impact on the environment mentioned.
1.
Possible from impact of a B-52 bomber.
L 2.
Sabotage from a political group or deranged employee.
Sheldon Novick interviewing David Brower, The Electric War,
- p. 193.
1522 219
Petitioner contends that the environmental impact of a cataclysmic breach of the containment and loss of coolant has not been discussed. Such t
results as a cataclysmic breach of containment h6ve been associated by 4
the appeal board with the occurrence of Class 9 accidents. As has previously been stated, Class 9 accidents in general need not be discussed in licensing proceedings. ALAB-489, supra.
See Section I.D of this response for the Staff's position concerning consideration of Class 9 accidents in this proceeding.
Petitioner mentions says in which such a cataclysmic breach of containment and loss of coolant could occur--1) impact of a B-52 bomber or 2) sabotage.
He does not, however, show why these situations would be more likely to ot.;ur at Big Rock than at other land-based plants. Therefore, Petitioner has not nade the showing required by ALAB-355 and ALAB-226, supra, in order to have these two events discussed in this proceeding.
For the reasons stated above and those stated in Section I.E of this response, Contention No. II.D is not admissible as a contention in this proceeding.
H.
The Staff Asks Leave of the Board to State its Position Regarding at least Part of Contention II.E at the Prehearing Conference.
Contention No. II.E states as follows:
II.E.
The effects upon a spent fuel pool with increased number of fuel assemblies of a class 9 reactor accident have not been considered, especially the real possibility that such an accident could cause a severe loss of water accident in the fuel pool.
1.
Since Three Mile Island, a class 9 reactor accident cannot be considered incredible, and must be taken into consideration.
2.
A class 9 accident could cause a severe loss of water accident in the fuel pool, and hence, a large release of radiation into the containment building. This is shown in the Institute for Reactor Safety of the 1522 220
Technical Control Association e.V., Working Report, Studies Comparing the Greatest Possible Failure Sequences in a Processing Installation and in a Nuclear Power Plant, No. 290, August 1976, !RC translation from the German, #161. 3.
The possibility of fuel assemblies that are stored
-+
closer together reaching critical mass eventually even seems possible, Dr. Helen Caldicott, Nuclear Madness, p. 58, and needs to be considered.
4.
The containment shell is inadequate protection from massive gamma ray radiation, ("NRC asks Consumers to study Big Rock's design" Charlevoix Courier, p.1, Wed., Nov. 7,1979) which would result from a loss of water accident involving an increased storage capacity at Big Rock, and in light of the significant resulting danger (of deep concern to Big Rock's insurance company) the license request should be denied.
The general statement of Contention No. II.E refers to a " class 9 reactor accident" which could cause a loss of water accident in the spent fuel pool.
As a general matter the same position taken by the Staff with regard to Contention No. II.D applies as well to this contention.
However, Petitioner has cited certain references which the Staff in the short time between the receipt of these amended contentions and the required filing date of this response has not had an opportunity to review to determine whether they affect the Staff's position on this contention.
Therefore, the Staff asks the Board leave to respond to part of this contention at the prehearing conference.
The meaning of Contention No. II.E.3 is somewhat unclear. The Staff at this time believes that Contention No. II.E.3 should be admitted as a contention in this proceeding to tha extent that it refers to criticality considerations arising out of the storage of spent fuel assemblies closer together in the normal course of operation of a spent fuel pool.
If, however, Petitioner meant this contention to relate only to the results 1522 221 of a Class 9 reactor accident then the Staff would ask leave to express its position on that contention at the time of the prehearing conference.
I.
Contention No. II.F is Admissible in its Present Form as a Contention in This Proceedina.
7
-+
Contention No. II.F states as follows:
II.F.
Absolutely no consideration is given to the concentrating of fission products in the food-chain as the result of any release of radiation from the increased number of fuel assemblies stored.
The Staff believes that this contentice is admissible in its present form and that no interpretation or clarification is necessary.
J.
Contention II.G is Vague and Thus Inadmissible in its Present Form as a Contention in This Proceeding Since it does not Meet the Requirements of 10 C.F.R. 82.714.
Contention No. II.G states as follows:
II.G.
No studies of the safety of increasing the density at which fuel assemblies are sto: ed, the increased number of assemblies, and the greatly increased length of storage have been stated as evidence, neither scientific studies conducted by the NRC nor independent group; without adequate scientific evidence the expansion is unwise and should be denied.
Petitioner contends that no scientific studies have been " stated as evidence".
Petitioner mentions some general issues on which he believes no scientific studies have been mentioned by the Licensee.
He does not, however, point to any aspects of the increased density at which spent fuel assemblies are stored, for example, which are of concern to him. Petitioner also does not say in what way the lack of citations to scientific studies in the general areas in which in his contention would affect the safety or environmental considerations relevant to this spent fuel pool expansion.
Due to its vagueness this contentioh does not meet the requirements of 10 C.F.R. 52.714 and should not be admitted in this proceeding.
1522 222
K.
Contention No. III and its Subparts Are Vague, Speculative and Without Basis and, Therefore, Inadmissible as Contentions in This Proceeding Since They Do Not Meet the Requirements of 10 C.F.R. 62.714.
[
-+
Contention No. III states as follows:
III.
Contentions I and II considered the possibility of an accident in a storage pool with increased storage capacity.
This contention addresses the affect of such an accident on my life.
Social and Economic Impact.
A.
Any accident resulting from increased storage of fuel rods would endanger my life and the life of my wife, Linda. The possible cause of such accidents is elaborated thoughout this paper.
B.
Any accident or significant public fear of accident or imagined danger would endanger our restaurant business, which depends upon the perception by tourists that the area is a safe place to vacation. This is true for many businesses in the area.
C.
Like all business within 50 miles of Big Rock, Jurs is not covered by our insurance policy for loss aue to an accident or damaging accidental radiation release from a spent fuel pool containing more fuel assemblies than it was originally designed to hold.
(All insurance policies are exempt from damages from a nuclear accident--Why is the question one is tempted to ask.)
The statements involved under Contention No. III would seem to represent a statement of interest rather than a contention in this proceeding.
Petitionert interest has previously been established and, therefore, these statements are not necessary to support his standing to intervene.
If these statements are to be treated as a contention, they represent a contention which is speculative, not susceptible to proof, vague, and without basis.
A NEPA analysis must be controlled by a " rule of reason".
See generally Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).
Petitioner seems to be contending that an accident at the Big Rock facility would endanger his life and that of ;11s wife.and would hurt a business in which 1522 223
he has an interest. Petitioner refers us to Contention I and II above. The accidents mentioned in those contentions seem to be mainly Class 9 accidents 4-ar.d so should not be used as a basis for cor;ideration of the impacts which 4
are of concern to Petitioner in this contention.
See Sections II.H and I.E, supra.
If Petitioner is referring to some accident of lesser severity than Class 9, he has failed to establish a basis supporting the contention that such an accident or fear of such an accident would endanger his life or hann his business and the business of others.
Part C of this contention raises no issue concerning the safety or environmental aspects of the proposed amendment.
Questions concerning the practices of a particular-insurance company regarding damages from a nuclear accident do not fall within the scope of this proceeding.
Due to its vagueness, speculativeness and lack of basis Conte 7 tion No. III and all of its subparts are inadmissible as contentions in this proceeding.
L.
Contention No. IV is Admissible in its Present Form as a Contention in This Proceeding.
Contention No. IV states as follows:
IV.
The racks have not been contracted out, nor have actual manufacturing specifications been presented, nor have similar designs been cited, along with their fabricators.
For this reason, an adequate evaluation cannot be made of the proposed modification.
Though the Staff has some doubts as to the relevance of this contention, we believe those doubts concern the merits cf the contention and not its adinissibility.
Therefore, Contention No. IV is admissible as a contention in this proceeding.
1522 224
' /
M.
Contention No. V is Inadmissible as a Contention in This Proceeding Since it Constitutes a Challer.ge to the Commission's Regulations and is Beyond the Scope of This Proceeding.
-f 4
Contention No. V states as follows:
V.
Should an accident occur involving the increased storage capacity fuel pool, the plant cannot adequately compensate the residents of the area and myself, by the Price-Anderson Act. Since the modification shouldn't be licensed because the company cannot adequately reimburse me should I suffer damage or injury.
Petitioner contends that the liability coverage required under 10 C.F.R. Part 140 of the Commission's regulations and the Price-Anderson Act are inadequate to compensate him for damages he might suffer from a nuclear accident.
10 C.F.R. Part 140 of the Commission's regulations implements
~
the Price-Anderson Act and specifies, among other things, the insurance requirements for licensees of nuclear facilities.
A challenge to the adequacy of the required insurance is a challenge to 10 C.F.R. Part 140, and so is prohibited by 10 C.F.R.12.758.
Petitioner has not made any showing of special circumstances sufficient for the Board to grant a waiver or exemption from this general prohibition.
Insofar as Petitioner challenges the liability limit established by the Price-Anderson Act, the challenge would be outside the scope of this license amendment proceeding.
The Supreme Court has upheld the constitutionality of the Price-Anderson Act.
Duke Power Company v. Carolina Environmental Study Inc., 438 U.S. 59 (1978).
Therefore, for the reasons stated above, Contention No. V is inadmissible as a contention in this proceeding.
1522 225
. N.
Contention No. VI Does Not Meet the Requirements of 10 C.F.P.
52.714 and is therefore Inadmissible as a Contention in This Proceeding in cs Present Form.
f.
-+
Contention No. VI states as follows:
VI.
It is not clear in the licensing report if the present pool meets all the present requirements for spent fuel pool.
Big Rock is an old plant, and " grandfather" exemptions may have been granted its storage pool which could have affects upon the safety of the expansion.
Petitioner here contends that there is no indication that the spent fuel pool now meets present NRC " requirements". The contention also refers to
" exemptions" which might have been granted for the spent fuel pool.
- However, there is no definition of what Petitioner means by " requirements", and what " exemptions" are of concern to him. Therefore, this contention is vague and lacks the basis necessary under 10 C.F.R. 52.714 for its ac.aission as a contention in this proceeding.
O.
Contention No. VII is Beyond the Scope of This Proceeding and Lacks Basis and, Therefore is Inadmissible as a Contention.
Contention No. VII states as follows:
VII.
The licensing hearing should include a review of general plant safety, including all aspects of power generation and plant and employee management at Big Rock.
A.
Review of general plant safety would provide an indicator of how well the plant structures have withstood nearly 20 years of service, and would help an analysis of how well analogous machinery, pipes, racks and materials involved in the spent fuel expansion will hold up for another 20 years.
It will also give an indication of the present condition of the equipment.
1522 226
. B.
Review would provide a good measure of the quality of plant administrative procedures and management, which would have a direct affect on the safe or unsafe operation of the storage facility, and the competence with which modifications can be expected to be made.
This would not constitute a relicensing of the plant, but an investigation of the history of the facility and its monitors, in an attempt to responsibly determine the future safe operation of an increased spent fuel storage pool.
Petitioner contends that a review of general plant safety should be a part of this license amendment proceeding. The scope of this proceeding is defined by the notice of opportunity for a hearing, which appeared in the Federal Register on July 23, 1979. 44 Fed. Reg. 43126-7.
Petitioner has not established a direct connection between either a review of general plant safety, or a review of general employee and management practices, and the proposed license amendment.
Petitioner also fails to provide a basis for his contention that a general review of employee and management practices is warranted.
Such a basis should be established, since at the time Big Rock was granted a provisional operating license, Consumers Power Co. was found to be technically qualified to operate a nuclear facility.
In the Matter of Consumers Power Company, Docket No. 50-155, 2 AEC 127 (1962), Application for Provisior.al Operating License. This finding was not overturned at the time the full-term operating license was granted.
Therefore, Petitioner must show a basis relating to the spent fuel pool under consideration here, for determining that a review of any past plant management practices is warranted in this proceeding.
For the reasons set forth above, Contention No. VII is inadmissible as a contention in this proceeding.
1522 227
[,
P.
Contention No. VIII is an Inadmissible Contention Sir.cc it is Beyond the Scope of the License Amendment Proceeding.
4 Contention No. VIII states as follows:
VIII. Granting of the license is the only way the plant can operate past the year 1981 as things stand now, and thus allow an extension of plant activity that would otherwise be halted.
Hence, it is a tacit approval of such extended operation, and should include a review of general plant safety.
The Kemeny Commission has recommended " periodic relicensing of existing atomic plants on the basis of hearings, inspections and performance criteria."
Big Rock produces very little electricity compared to modern nuclear generators, 72 megawatts at most; the closing of Big Rock would not cause great hardship.
Petitioner contends that since the proposed expansion is the only way in which the Big Rock facility will be able to operate after 1981, a general review of plant safety should be included in this license amendment proceeding.
Such a review would constitute a relicensing of the Big Rock facility.
In 1962 Consumers Power Company was granted a provisional operating license, and in 1964 they received a full-term operating license which expires in the year 2000.
Before these operating licenses were issued a safety evaluation was conducted by the NRC Staff.
In addition, Big Rock is subject to ongoing Staff reviews in the form of inspections, safety evaluations for proposed license amendments, and generic review programs. Any review' of plant safety not directly related to this spent fuel pool modification proposal would be a duplication of i
effort and well beyond the scope of this proceeding. as described in the notice of opportunity for a hearing filed in the Federal Register on July 23,1979. 44 Fed. Reg. 43126-7.
Petitioner has also established no basis for the proposition that such a review should be conducted in the 1822 228
l -
context of a spent fuel pool expansion proceeding.
Therefore, for the reasons stated above, Contention No. VIII should not be admitted as a
-r contention in this proceeding.
CONCLUSION For the reasons set forth above, the Staff believes:
- 1) Christa-Maria's Contentions Nos.1 and 8 are inadmissible as contentions in this proceeding as a matter of law and Commission policy;
- 2) Christa-Maria's Contentions Nos. 7 and 9 are inadmissible in their present form since they represent a challenge to Commission regulations and do not meet the showing of special circumstances required by 10 C.F.R.
s2.758(b);
- 3) John P. O'Neill's Contentions fios. I.B.5, II.B and II.E.3 are admissible as contentions in this proceeding provided the Staff's interpretation is accepted;
- 4) John P. O'Neill's Contentions Nos. II.F and IV are admissible as contentions in this proceeding in their present form; and
- 5) John P. O'Neill's remaining contentions except for II.C and II.E are inadmissible for lack of basis, vagueness, because they are beyond the scope of this proceeding, or because they constitute a challenge to the Commission's regulations.
Christa-Maria's Contentions Nos. 2, 3, 4, 5 and 6 are the subjects of a Stipulation entered into by representatives of Christa-Maria, Consumers Power Company (Consumers) and the NRC Staff on November 26, 1979 and previously filed with this Board. The Staff's position regarding these 152'2 229
contentions is expressed in that Stipulation and will not be reiterated 4-in this response.
The Staff hereby asks leave of the Board to state its
-4 position concerning Contentions Nos. II.C and II.E orally at the time of the prehearing conference.
Respectfully submitted,
' O bb b- [MO Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 29th of November, 1979.
G 8m 1522 230
Li P-; 9
.'9 ATTACHMENT A UNITED STATES OF AMERICA NUCLEAs REGULATORY COFMISSION ATOMIC SAFETY AND LICENSING BOARD
-4' 4
Charles Bechhoefer. Chairman Dr. Oscar H. Paris. Member Glenn O. Bright, Minber In the Matter of PENNSYLVANIA POWER & LIGHT COMPANY
)
Do_cket Nos. 50-387 and
)
50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
)
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
MEMORANDUM AND ORDER CONCERNING CLASS 9 ACCIDENT CONTENTION (October 19, 1979)
On August 30, 1979, the Susquehanna Environmental Advocates (SEA), an intervenor in this operating license proceeding, filed a " Petition For Modification of Special Prehearing Conference
' Order" which asked us to reconsider our earlier ruling which re-jected as an issue in controversy SEA's contention which sought to litigate the consequences of so-called " Class 9" accidents.
In responses dated September 19, 1979 and September 27, 1979,1/
respectively, the NRC Staff and the Applicants each opposed the requested modification.
No other party has filed a response to the petition.
For reasons hereinafter set forth, we grant in 1/
Although SEA's petition includ were served, the Applicants el DUPLICATE DOCUMENT petition from SEA but rather<
Staff.
In addition, not all o ally served.
We remind SEA t Entire document previously furnished to all parties, as,
entered into system under:
sion's Secretary (10 CFR 52.7 g,g} g Agg consider the eticion and wil as timely filed.
N o.
of pages:
$3/