ML19263E667
| ML19263E667 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 05/29/1979 |
| From: | Mcgarry J DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 7906200597 | |
| Download: ML19263E667 (17) | |
Text
O PUBLIC DOCUMEy7 go9, A)((,Y 6 UNITED STATES OF AMERICA M
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NUCLEAR REGULATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g
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In the Matter of
)
)
DUKE POWER COMPANY
)
)
Docket No. 70-2623 (Amendment to Materials License
)
SNM-1773 for Oconee Nuclear Station
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Spent Fuel Transportation and Storage
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at McGuire Nuclear Station)
)
APPLICANT'S RESPONSE TO NATURAL RESOURCES DEFENSE COUNCIL'S MOTION FOR
SUMMARY
DISPOSITION WITH RESPECT TO NRDC CONTENTION 4 I.
BACKGROUND On March 9, 1978, Duke Power Company (Applicant) applied to the Nuclear Regulatory Commission (NRC or Com-mission) for an amendment to its Materials License No.
This application requested authority to receive and store spent nuclear fuel from the Oconee Nuclear Station (Oconee) at the McGuire Nuclear Station, (McGuire). In response to the July 28, 1978, Commission notice regarding the subject application (43 Fed. Reg. 32905), NRDC filed its petition for leave co intervene.
Subsequently, by Order dated February 13, 1979 the Licensing Board granted NRDC discretionary intervention limited by restrictions contained in a stipulation appended to the Order. 1/
By Order dated March 16, 1979, this Licensing Board ruled that s ix (6) contentions raised by NRDC would be admitted.
l/ This stipulation, inter alia, restricts NRDC's partici-pation to only those contentions it advances which are admitted by the Licensing Board.
2287 284 790620o597
..,,s Thereafter, on May 4, 1979, NRDC filed the subject motion for summary disposition with respect to its Contention 4.
Applicant submits that its Motion for Summary Dispo-sition, filed on May 21, 1979 (incorporated herein by reference), as well as arguments advanced herein, clearly establish that NRDC's Contention 4 is without merit and, pursuant to 10 CFR S2.749, should be dismissed.
II.
ARGUMENT NRDC's Contention 4 asserts that the proposed action increases the exposure to radiation workers 2/ beyond that which is ALARA.
Further, NRDC asserts that ALARA can be achieved by expansion of on-site storage capabilities
[ Contention 4(a)] and, the residual risks associated with the proposed action militate against its acceptance [Conten-tion 4(b)].
-2/
Although, as written, NRDC's Contention 4 also addresses the ALARA concept with respect to the public, NRDC has apparently retreated from this position by stating in the instant motion "[T]he basic thrust of our contention is that the proposed action does not assure that re-leases to workers will be kept as low as reasonably achievable."
See also NRDC's Response to Applicant's Inter rogatory 4138, Apr il 16, 1979.
Applicant notes that it is well recognized that answers to interroga-tories can be relied upon in support of motions, or responses to motions, for summary disposition.
10 CFR S2.749(b); Fed. Rules Civ.
P.
Rule 56(d); J.
- Moore, Federal Practice, paragraph 33.29 at 33-158 and 33-163 (2 ed. 1978).
2287 285
NRDC makes these assertions despite the fact that it has not made an analysis of, inter alia, the radiation exposure to workers of any of the alternatives to the proposed action, the specific steps in the proposed action or in any of the alternatives which result in the ALARA criteria being exceeded, which alternatives would not exceed the ALARA concept, or the residual risks associated with any of the alternatives. 3/
With regard to the instant motion NRDC maintains that an adequate ALARA analysis and subsequent comparison of the various alternatives has not been performed as NRDC contends is required by 10 CFR S20.l(c).
NRDC explains:
Both the Staff and the licensee have prepared an analysis of the impact on workers of the proposed action but neither has made an attempt to demon-strate that the worker exposures are as low as reasonably achievable.
Such an analysis would require a thoto.lgh investigation of the worker exposures associated with the proposed action and alternatives to it. (NRDC Motion at 1)
Further, NRDC questions the adequacy of both the Staf f and Applicant's analysis of the radiological impacts of the proposed action and alternatives thereto.
NRDC, therefore, 3/
See NRDC's Response to Applicant's Interrocatories 120 - 150, April 16, 1979.
NRDC nas responded to 17 of the 31 interrogatories relating to this contention with statements such as "[w] e have made no such analysis".
2287 286 requests that this Board delay the instant proceedings until such an analysis and comparison have been performed and subjected to review by all parties. 4/
Applicant submits that in the instant proceeding (1) an ALARA evaluation of alternatives to the proposed action is not required, (2) the proposed action meets the ALARA criteria and (3) any evaluation of alternatives need only consider viable alternatives capable of solving the immediate problem of lack of spent fuel storage space for the near term.
In any event, an analysis of the radiological impacts of the viable alternatives has been made and it clearly shows that there is no significant difference between the proposed action and viable alternatives thereto. As such, Applicant requests that NRDC's motion for summary disposition with respect to Contention 4 be denied and that Applicant's motion for summary disposition with respect to Contention 4 be granted.
In the alternative, Applicant submits that NRDC l
fails to adequately address all material facts submitted by Applicant and the instant motion is, therefore, legally deficient a.1d should be denied.
Applicant addresses each point, in seriatim, below.
4/
Applicant questions whether the relief sought by NRDC in the instant motion is appropriate for a motion for summary disposition.
Applicant submits that such requested relief may militate against treatment of the instant motion as one for summary disposition.
2287 287 At the outset, it is important to note that NRDC does not take issue with the question of whether the proposed action (e.g.,
the transshipment ac tiv ities) in and of itself meets the ALARA criteria.5/
Rath,3r, NRDC 's concern is that an ALARA comparison of all altert atives to the proposed action be made.
Applicant submits that NRDC incorrectly places reliance on the ALARA concept to support its position that the radiological consequences of various alternatives must be analyzed and compared.
Applicant acknowledges that where a proposed action has a significant impact on the environment there is a requirement to evaluate the various alternatives in light of their relative costs and impacts upon the environment.
However, this requirement stems from NEPA and not from the definition of ALARA as contained in 10 CFR S20.l(c) 6/ and quoted below:
(c) In accordance with recommen-dations of the Federal Radiation Council, approved by the President, persons engaged in activities under licenses issued by the Nuclear Regulatory Commission
. snould, in addition to complying with the require-ments set forth in this part, make every reasonable effort to maintain radiation exposures, and releases of radioactive materials in effluents to unrestricted areas, as low as is reasonably achievable.
The term 5/ Applicant's March 28, 1979 Inter rogatories to NRDC, #124 asked:
" Limiting your attention to the transportation alterna-tive, do you contend that any other means of transportation is ALARA?
If so, please provide detailed supporting basis".
NRDC's response thereto was "124. No."
-6/ That Part 20 to 10 CFR is applicable stems from NRCC's ack-knowledgement in its motion that the " basic thrust" of its contention pertains "to workers".
See Footnote 2, page 2.
2287 288 "as low as is reasonably achievable" means as low as is reasonably achievable taking into account the state of technology, and the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic consider-ations, and in relation to the utilization of atomic energy in the public interest.
(emphasis supplied)
To assure that any activity meets the ALARA criteria as imposed by 10 CFR 520.l(c), a detailed analysis of the equipment used and specific steps in that activity is required.
It would place an unwarranted burden on Applicant to require this type of in-depth analysis for each possible alternative.
Indeed, such an analysis would require, inter alia, detailed designs, procedures and operational characteristics and sitirq alternatives for each of the various alternatives.
Thus, the Commission has imposed under NEPA the requirement that, under certain circumstances, a NEPA comparison of alternatives must be performed, consistent with a rule of reason. 7/
It follows that this NEPA comparison does not require an ALARA type detailed analysis for each alternative.
Rather, NEPA requires a more general analysis.
When the appropriate alternative is selected, as an additional measure of protection, the actions under this alternative must be analyzed in detail and appropriate licensing conditions imposed (i.e.,
" improvements") where needed, to assure that it meets the ALARA criteria.
7/ See Prairie Island and Vermont Yankee, supra, 7 NRC 48-49, and tne legton of cases rnere cited.
2287 289
_7_
In support of its position that a separate and distinct requirement for a radiological analysis of all alternatives exists under the ALARA definition, NRDC cites the combined Appeal Board decision in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Unit 1 and 2) and Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-4 55, 7 NRC 41, (1978). 8/
In this decision, involving requested licensing amendments to modify the spent fuel storage capacity at the respective sites, the question of whether the ALARA critecia mandated an ALARA analysis of all. alternatives to the proposed action was never raised.
Indeed, Applicant contends that no such comparison was ever made.
The sole issue, there, involving ALARA was whether the radiation exposure resulting f rom activities involving teracking of the spent fuel pool, the proposed action, could be reduced by shipping all racks off-site without cutting them into smaller sections.
With respect to ALARA, the Appeal Board there stated:
It bears emphasis that the ALARA standard comes into play only after it has been determined that the applicant's proposal will comply with all other requirements imposed by Part 20 7 NRC 56, note 13.
In other words, the ALARA standard only addresses the activity under question in any proceedings (e.g., in the instant proceeding this activity is shipment of Oconee 8/ In State of Minnesota v. NRC, F.2d.
, No. 78-1269 (D.C. Cir. May 23, 1979), the Court upheld the Commission's issuance of licensing amendments, but remanded the proceeding on other grounds, (e.g.,
for consideration of issues involving Table S-3).
2287 290
. fuel to McGuire) and not all alternatives under considera-ation.
Indeed, to hold otherwise would constitute a dupli-cation of the NEPA requirements and, as a practical matter, impose a virtual impossible burden on Applicants.
While NRDC does cite a Licensing Board Order in Commonwealth Edison Co. (Dresden station, Units 2 and 3, and Quad Cities Station, Units 1 and 2) Memorandum and Order (April 24, 1979) that holds that an ALARA analysis may be required for alternatives, Applicant contends that this Order ~~ dresses this contention only from the aspect of intervention and, in any event, does not comport with countless other decisions wherein no ALARA comparison of alternatives was made. See Portland General Electric Co.
(Trojan Nuclear Plant), ALAB-531, __ NRC __ (March 21, 1979); Prairie Island and Vermont Yankee, suora; York Committee for a Safe Environment v. NRC, 527 F.
2d. 812 (D.C. Cir. 1975).
From the foregoing, Applicant contends that the ALARA criteria mandates consideration of the proposed action to assure that all activities thereunder are consistent with the ALARA concept.
Further, Applicant submits that with respect to the proposed action, this requirement has been fulfilled.
Con-sideration of activities at Oconee involving handling and transshipment of Oconee spent fuel have been thoroughly analyzed during previous Oconee proceedings and subsequently during the continued Oconee operation activities, including shipment of Oconee spent fuel.
Such activities are conducted so as to 2287 291 meet the ALARA criteria.
Further, the handling and storage of Oconee spent fuel at McGuire has been thoroughly analyzed and in the Staff's " Safety Evaluation Report Related to Spent Fuel Storage of Oconee Spent Fuel at McGuire Nuclear Station - Unit 1 Spent Fuel Pool", (SER), January 1979, the Staf f states that such activities meet the ALARA criteria.
SER at 2-6. 9/
In sum, Applicant contends that NRDC's Contention 4 attempting to impose an ALARA alternative comparison re-quirement in addition to requirements contained under NEPA is without merit.
As such, Applicant maintains that it should be dismissed.
See Applicant's Motion for Summary Disposition which requests such relief.
Inasmuch as NRDC's instant Motion for Summary Disposition is premised on this Contention, it should be denied.
With respect to alternatives, Applicant submits that the environmental effects of the proposed action have been thoroughly analyzed by the NRC Staff in its EIA of December 1978.
Therein the Staff concluded that " transshipment will result in negligible environmental impacts. " 10/
Applicant maintains that unless NRDC can provide specific reference as to now the proposed action will result in a significant impact upon the quality of the human environment it is precluded from asserting that alternatives thereto are inadequately considered.
As the Appeal Board stated in Trojan, supra: "there is no obligation to search out possible 9/
See also " Affidavit of Dr. John V.
Nehemias", May 10, 1979, at 4 ) "We conclude that the exposures likely to result from the transshipment of Oconee spent fuel to McGuire, as described by Applicant, would be ALARA".)
--10/ EIA at 59.
2287 292 alternatives to a course which itself will not either harm the environment or bring into serious question the manner in which this country's resources are being expended."
(Slip opinion at 3)
In any event, Applicant submits that only viable alter-natives to the proposed action need be considered.
The underlying purpose of the proposed action is to provide an interim solution to an immediate problem, vis, the possible loss of a full core reserve capability in 1979 and termina-tion of operations of Oconee in early 1981 due to insuffi-cient spent fuel storage space.
The only other viable option that provides a timely solution to this problem, contemplating the continued mode of base-loaded full-power Oconee. operation, is reracking of Oconee 1 and 2 spent fuel pool with "non-poison" racks. It is unlikely that any other storage option could be implemented until after termination of operations. 11/ Applicant therefore has filed appropriate applications for both alternatives to assure that sufficient storage space would be available for continued operation of Oconee.
While Applicant will continue to plan for other options for the future, Applicant maintains that an evalua-tion of these options is not at present warranted pursuant to the " rule of reason" as articulated in NRDC v. Morton, 12/
wherein it is stated that:
11/
Applicant's Response to NRDC's Interrogatory 410 and 13, Maren 27, 1979; NRC's Response to NRDC's Recuest for Admissions 45, April 5, 1979; Applicant's Response to NRDC Interrogatory 424, 26(II), May 7, 1979; and EIA pp. 49-56.
12/
458 F.
2d 827, (D.C. Cir. 1975); See also Footnote 7, page 7.
2287 293 m
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_ _...NEPA was not meant to require detailed discussion of the environmental effects of
' alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies--making them available, if at all, only af ter protracted debate and litiga-tion not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed."
458 Fed. 2d. at 837-38. 13/
Applicant notes that, regardless of the action taken with respect to its application for reracking of the Oconee Units 1 and 2 spent fuel pool, shipment of spent fuel would be required for that and all other foreseeable options to the spent fuel storage problem at Oconee.
These options are:
(1) use of " poison" racks (installation requires shipment); (2) expansion of both spent fuel pools (not viable due to physical layout of existing pools which preclude expansion); and (3) construction of an independent storage installation at Oconee (economically viable only for storage of all of Applicant's spent fuel, thus requiring shipment). 14/
In short, shipment of spent fuel is the cornerstone of all viable on-site storage options.
13/
See also Northern States Power Company (Prair ie Island Nuclear Generating Plant, Units 1 and 2) ALAB-455, 7 NRC 41, 48-49 (1978).
14/
See Applicant's Response to NRDC's Interrogatory 410 and 13, Maren 27, 1979; NRC's Response to MRDC 's Recuest for Admissions 45, April 17, 1979; Applicant's Response to NRDC's Interrogatories 424 and 26 (II),
May 7, 1979.
2287 294
. With respect to the two viable alternatives, the proposed action and reracking of Oconee Units 1,and 2 spent fuel pool with non-poison racks, Applicant contends that both have been thoroughly evaluated by the Staff and the Applicant and such evaluation shows that the residual risk associated with each alternative is negligible and not significantly different.
The results of Applicant's evalu-ation are contained in, inter alia, the following documents:
(a)
The respective applications of the two alternatives.
(b)
William O.
Parker, Jr. to Clifford V.
Smith, NRC/
ONMSS, October 20, 1978 letter responding to informal Staff request of October 4 and 5, 1978.
(c)
W. O.
Parker to Clifford V.
Smith, NRC/ONMSS, March 9, 1978 letter transmitting application for license to store Oconee Nuclear Station fuel at McGuire Nuclear Station.
(d)
W. O.
Parker to Clifford V.
Smith, NRC/ONMSS, June 16, 1978 letter responding to Staff letter ?f May 19, 1978.
(e)
Applicant's Response to NRDC's Recuest for Admissions 48, April 17, 1979.
(f)
Applicant's Response to NRCC's Interrogatorv 421, May 7, 1979.
The results of the Staff's evaluation are contained in, intet alia, the following documents:
(a)
EIA (b)
SER (c)
Memo to File by B. S.
Spitalny, NRC/ONMSS, November 7, 1978.
(d)
Memo to File by B.
S. Spitalny, NRC/ONMSS,
November 9, 1978.
2287 295
. (e)
NRC's Response to NRDC's Recuest for Admission #8, April 18, 1979.
(f)
" Affidavit of Dr. John V. Nehemias", May 10, 1979, Appended to NRC's Motion for Summary Disposi* ion of NRDC's Contentions 1 - 5.
(g'
" Affidavit of Dr. Michael A. P a r so n t", May 11, 1979, Appended to NRC's Motion for Summary Disposition of NRDC's Contentions 1 - 5.
Significantly, the most recent NRC Staff's evaluations, Affidavits of Dr. Michael A.
Parsont and Dr. John V. Nehemias, referenced above, clearly establish that based on very conservative assumptions, the residual risks associated with the proposed action are, in essence, no different than that of the only other viable option, reracking Oconee Units 1 and 2 spent fuel pool with non-poison racks.
Thus, Appli-cant submits that NRDC's Contention 4 is without merit and should be dismissed.
This position is reinforced by the fact that NRDC has not contested any of the above referenced documents.
Indeed, in that NRDC has made no radiological analysis of any alternatives, it is difficult to perceive how NRDC could contest them. 15/
Rather, NRDC simply asserts that as a general proposition adequate evaluations have not been performed.
This type of assertion was expressly rejected by the Supreme Court in Vermont Yankee Nuclear Power Corp. v. NRDC 435 U.S. 519 (1977).
Therein the Supreme Court stated:
15/
See NRDC's Response to Applicant's Interroaatory
- 137 - 140, April 16, 1979.
2287 296
. "it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenor's position and con-tentions."
435 U.S.
at 553.
Continuing the Court stated, "Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obs-tructionism by making cryptic and obscure refer-ence to matters that "ought to be considered and then, af ter f ailing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters ' forcefully presented'."
435 U.S. at 554.
Applying the Court's teachings here, Applicant con-tends that NRDC, in asserting that various alternatives to the proposed action are not adequately considered, is required to alert the Staff and Applicant to the specific inadequacies which give rise to the contention.
Applicant maintains that the Staff and Applicant have met their burden of providing detailed information with respect to all consideration of alternatives.
However, NRDC in responding to interrogatories has failed to specif,, or indeed, sug-gest, what aspects of the various alternatives it believes were inadequately considered.
Thus Applicant maintains that NRDC has failed to meet its burden of specificity with respect to this contention and accordingly it should be dismissed.
Inasmuch as NRDC's instant Motion for Summary Disposition is premised upon this Contention, it should be denied.
2287 297
IV.
CONCLUSIONS From the foregoing, Applicant submits that NRDC 's Motion for Summary Disposition of Contention #4 should be denied.
Further, Applicant submits that NRDC's Contention 4 presents no issue of law or material fact suitable for resolution in this proceeding, and, therefore requests that the Board grant Applicant's previously filed Motion for Summary Disposition in this regard.
Respectfully sub.nitted,
/[
C [176/
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J. Michael McGarry, II Of counsel:
William L.
Porter, Esq.
Associate General Counsel Duke Power Company g7 }gg May 29, 1979 s
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIESION In the Matter of
)
)
DUKE POWER COMPANY
)
)
Docket No. 70-2623 (Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
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Transportation and Storage
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At McGuire Nuclear Station)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Natural Resources Defense Council's Motion For Summary Disposition With Respect to NRDC, Contention Y,"
dated May 29, 1979, in the above captioned matter have been served upon the following by deposit in the United States mail this 29th day of May, 1979:
Marshall I.
Miller, Esq.
Mr. Jesse L.
Riley Chairman, Atomic Safety and President Licensing Board Carolina Environmental Study U. S. Nuclear Regulatory Group Commission 854 Henley Place Washing ton, D.
C.
20555 Charlotte, North Carolina 28207 D r. Emme th A. Luebke Atomic Safety and Licensing Edward G.
Ketchen, Esq.
Board Counsel for NRC Regulatory U.
S. Nuclear Regulatory Staff Commission Office of the Executive Legal Washington, D.
C.
20555 Director U.
S. Nuclear Regulatory Dr. Cadet H.
Hand, Jr.
Commission Director Washington, D.
C.
20555 Bodega Marine Laboratory of California William L.
Porter, Esq.
Post Office Box 247 Associate General Counsel Bodega Bay, California 94923 Duke Power Company Post Office Box 33189 Charlotte, North Carolina 28242 2287 299
Shelley Blum, Esq.
Richard P.
Wilson 418 Law Building Assistant Attorney General 730 East Trade Street State of South Carolina Charlotte, North Carolina 2600 Bull Street 28202 Columbia, South Carolina 29201 Anthony Z.
Roisman, Esq.
Natural Resources Defense Chairman, Atomic Safety and Council Licensing Board Panel 917 15th Street, N.W.
U.S. Nuclear Regulatory Washington, D.
C.
20005 Commission Washington, D.
C.
20555 Brenda Best Carolina Action Chairman, Atomic Safety and 1740 E.
Independence Blvd.
Licensing Appeal Board Charlotte, North Carolina U. S. Nuclear Regulatory 28205 Commission Washington, D.
C.
20555 Mr. Geoffrey Owen Little Davidson PIRG Mr. Chase R. Stephens P. O. Box 2501 Docketing and Service Section Davidson College Office of the Secretary Davidson, North Carolina U. S. Nuclear Regulatory 28036 Commission Washington, D.
C.
20555
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