ML19282A757

Nrdc'S Response to Applicant'S & Nrc'S Objections to Contentions.Urges That NRC Did Not Validly Challenge Its Contentions & That Its Contentions Should Be Admitted. Certificate of Svc Encl

ML19282A757
Person / Time
Site:	Dresden, Quad Cities
Issue date:	01/26/1979
From:	Roisman A National Resources Defense Council
To:
References
NUDOCS 7903060287
Download: ML19282A757 (8)

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Docket Nos. 50-237 (Amendments to Operating Licenses) f0]2j 50-265 NATURAL RESOURCES DEFENSE COUNCIL RESPONSE TO APPLICANT AND STAFF OBJECTIONS TO CONTENTIONS Introduction At this stage in the proceeding the Board is in a position to rule on the admissibility of a contention based upon the adequacy of the statement or basis of the contention or based upon a showing that regardless of the facts adduced as a matter of law the contention is incorrect.1 The applicant objections are consistent with these principles. The Staff objections are not. In the preamble to its brief, the Staff cites Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 55 L.Ed.2d 460, 485 (1978), for the proposition that there is a threshhold evidentiary requirement which must be met before an agency is required to develop a case with respect to a contention. Of course, no such threshhold test applies to the admissibility of a contention which is judged 1/ As we noted during the conference phone call, the Board's jurisdiction tc decide the admissibility of more than one contention, much less reach the legal merits of any contention, is dependenr upon an expansion of the limited powers now delegated to this Board.

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- 2 before any evidentiary presentation has been made. A number of staff objections are based upon evidentiary disputes which are premature at this time. When evidence is adduced, NRDC will be more than able to meet any threshhold test. The admission of a contention is a precondition to rule an evi-dentiary presentation because it triggers discovery rights from which some of the evidence may be developed.

Contention 1 Contention 1 is challenged by-the Staff on the theory that it conflicts with Commission policy. In fact the contention is based on Commission policy. The contention rests upon completion of the programmatic EIS being prepared by NRC and the' one being prepared by DOE. The NRC policy statement was written when only NRC was doing a programmatic review and only relates to that review. The DOE review is related to a proposed programmatic solution to interim storage. That proposed solu-tion dces not inc.ude transshipment. The NRC policy statement specifically authorized challenges to individual actions based on the absence of the programmatic review where it could be shown, inter alia, that the proposed action would " tend to significantly foreclose the alternatives available with respect to any other individual licensing action of this type" or would not be necessary to keep reactors cperating where their operation was needed for system reliability, econcmics or control of 2/ Our comments en specific contentions are intended to incor-porate by reference comments on these same contentions filed by the Illinois Attorney General.

3 pollution. 40 Fed. Reg. 42801, 42802 (last column), September 16, 1975. Our contentions 1(c), 2, and 3 all address these factors.

If Applicant expends funds now to transship its spent fuel, it will have used funds that could have been spent to expand at-reactor storage capability. Transshipment only makes sense if the Applicant plans to ship to an away-from-reactor storage facility (AFR) in the future. The cost-benefit analysis of such an AFR will appear more favorable as compared to at-reactor storage if, as proposed here, Applicant has already sunk costs in anticipation of the availability of an AFR. Today, without transshipment, DOE has concluded that (DOE /ET-0055, p. 3):

It is assumed that there would be economic and other advantages to the utilities of keeping their spent fuel at their own reactor sites rather than shipping it to interim AFR storage basins.

That is a advantage of at-reactor storage which we seek to p;eserve. Transshipment may destroy that advantage and Contention 1 seeks to pursue the issue.

3/ The Staff appears to ignore the possibility that on-site expansion of spent fuel storage includes building an additional pool and not merely compaction. Their ignorance is unjustified inasmuch as we pressed this cptien in our comments on the spent fuel GEIS. See September 15, 1978, letter from Anthony Z. Roisman to Clifford Smith and attached Analysis of Space Available for Storage of Spent Fuel at Existing Operating Reactor Sites.

4 Contention 2_

The Staff objection is cased upon their belief that when all the evidence is presented the Staff will be able to demonstrate that no impact str.tement is required. Of course that is a basis for admitting the contention so that Intervenors and the Staff can join issue. The basis for our belief that major impacts will occur if transshipment is allowed is fully articulated in the contention. Staff takes issue with the reference to the dangers of proceeding with waste half-measures prior to having a permanent waste disposal solution. We refer-ence these dangers because they are part of the residual environmental risk created by the decision in Natural Resources Defense Council v. Nuclear Reculatory Commission, 524 F.2d (D.C. Cir. 1975); Project Manacement Cor; oration (CRSR), ALAB-330, 3 NRC 613, 619-20, reversed on another issue CLI-76-13, 4 NRC 67.

Contention 3 The Staff asserts with respect to 3(a) and (b) objections which go to the adequacy of an evidentiary basis for the conten-tion. As the 5taff ite. elf states, at this time it is premature to determine the evidence for this contention. What is ripe is our clear articulation of our contention -- inadequate consider-ation of alternatives -- and the listing of possible alternatives which are not on their face unreasonable. We have done that.

Combining Contentions 3 (c) and 9 is not objectionable to us.

. 5 Contention 4 The Staff objection is to the factual merits and not the legal adequacy of the contention. The portion of 4 (b) emphasized by the Staff and the applicant was merely intended to disclose that our experts believe the level of worker exposures are 10 times higher than safe. That is a measure of perception of the residual risk of merely meeting the regulation, not a call to change the regulation.

Contention 5 Part of the alleged need for the proposed action is the assertion of the need to maintain a full core discharge capability. Because full core discharge capability is not a regulatory requirement, retaining that capacity is only desir-able if it is itself beneficial. The practice of other utilities confirms that the full core reserve is neither desirable nor required.

Contention 6 In opposing Contention 6 applicant and Staff rest upon the allegation that current regulations concerning security protection for special nuclear material do not cover shipments of spent fuel. However, at no time does the Commission exempt frem consideration the pctential health and safety effects of

' sabotage directed against such shipments. Clearly there is a health and safety problem requiring security =casures. In its

6 draft EIS on spent fuel storage policy (DOE /EIS-0015-D) the DOE, although concluding the risks are small, nonetheless addressed sabotage of spent fuel shipments as relevant to any spent fuel storage policy. In adopting the exemption to the requirements of Part 73 contained in S 73.6, th3 AEC did not make any finding that there is no sabotage danger associated with spent fuel in transit -- a finding which it could not make.

Thus it left open for litigation in any proceeding the question of whether such a danger does exist and its impact on the public health and safety, NRDC is entitled to raise this issue, particularly in the absence of any data from-the applicant on how it intends to cope with this problem.

Contention 7 Staff objects to the lack of specificity of a contenticn which is itself based upon a lack of specificity of the appli-cation. Without data on emergency planning and an ER we cannot assess the adequacy of the emergency planning and the environ-mental impacts. To date there.is virtually no evidence from the applicant on environmental issues and none on emergency planning.

Contention 8 This contention tracks the scandards developed by the NRC for consideration of interim spent fuel handling proposals and identifies how those standards are not met by the proposed action. If it is insufficiently precise, the Staff should

. 7 coject to the Commission which adopted the standards.

Conclusion For the reasons provided here and in the filing of the State of Illinois, the contentions should be admitted.

Respectfully submitted, s

Anthony 7) R @ man /

Natural Resources Defense Council 917 15th Street, N.W.

Washington, D.C. 20005 (202)737-5000 Dated: January 26, 1979

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COMMONWEALTH EDISON CO., et al.  : Docket Nos. 50-237

50-249 (Amendments to Operating Licenses)  : 50-254 50-265 CERTIFICATE OF SERVICE I hereby certify that copies of NRDC RESPONSE TO APPLICANT AND STAFF OBJECTIONS TO CONTENTIONS were mailed today, January 26, 1979, to the following:

Secretary of the Commission Gary L. Milhollin, Esq.

U.S. Nuclear Regulatory Commission 1815 Jefferson Street Washington, D.C. 20555 Madison, Wisconsin 53711 Attention: Docketing and Service Mrs. Elizabeth B. Johnson Executive Legal Director Union Carbide Corporation U.S. Nuclear Regulatory Commission Nuclear Division Washington, D.C. 20555 P.O. Box x Oak Ridge, Tennessee 37830 Philip P. Steptoe Isham, Lincoln & Beale Dr. Quentin J. Stober One First National Plaza Fisheries Research Institute 42nd Floor University of Washington Chicago, Illinois 60603 Seattle, Washington 98195 Susan N. Sekuler Assistant Attorney General 138 W. Randolph Street Suite 2315 Chicago, Ill. 60601

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