ML19289F084
| ML19289F084 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 05/11/1979 |
| From: | Hoefling R, Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19289F083 | List: |
| References | |
| NUDOCS 7906010325 | |
| Download: ML19289F084 (100) | |
Text
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3 UNITED STATES OF A'iERICA NUCLEAR REGULATORY COM1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 70-2623 DUKE POWER COMPANY
)
)
(Amendment to Materials License
)
SN'4-1773 for Oconee NuclearStation )
Spent Fuel Transportation and
)
Storage at McGuire NuclearStation) )
NRC STAFF'S MOTION FOR SUMf1ARY DISPOSITION OF NRDC CONTENTIONS 1, 2, 3, 4, and 5 Edward G. Ketchen Counsl for NRC Staff Richard K. Hoefling Counsel for NRC Staff May 11, 1979 2235 126 79060103%4,
s TABLE OF CONTENTS Page 1
I. M0T I O N....................................................
1 II. INTRODUCTION AND BACKGROUND...............................
2 III. GENERAL P0INTS OF LAW.....................................
6 IV. SUPPORTING BASIS FOR MOTION FOR
SUMMARY
DISPOSITION.......
A.
Contention NRDC-1 (Handling and Storage of Spent 6
=
Fuel Program)......................................
Contention NRDC-2 (Significant Major Federal B.
14 Action)............................................
C.
Contention 3 (Alternatives) and 5(a) 18 (No FCR Alternative)...............................
23 0.
Contention NRDC-4(a) (ALARA).........................
29 E.
Contention NRDC-4(b) (Residual Risk).................
32 Contention NRDC-5 (Full Core Reserve Policy).........
F.
40 V. CONCLUSION................................................
2L235 127 N
Attachment AFFIDAVITS AND QUALIFICATIONS Affidavit #
Name Brett Spi tal ny and J ohn Roberts.................
1 Brett Spitalny..................................
2 Brett Spitalny..................................
3 Dr. John Nehemias...............................
4 Or. fiichael Parsont.............................
5 J e r re l l Ca rte r, J r..............................
6 2235 128
I.
MOTION The United States Nuclear Regulatory Commission Staff (Staff) moves that the contentions listed below be dismissed pursuant to 10 C.F.R. s2.749 for want of a genuine material issue of fact to be adjudicated at the upcoming environmental hearings scheduled for June 19-29, 1979.
The Staff is of the opinion that the attached affidavits, together with the various responses to discovery requests, demonstrate that the Inter-venor, Natural Resources Defense Council (NRDC), has failed to produce a sufficient factual basis for the NRDC Contentions 1, 2, 3(c) and 3(d),
4, and 5, and Contentions 3(a) and 3(b) are not issues in this case as a matter of law, and that there are no material issues of fact for adjudi-cation at the hearings.
Accordingly, the Atomic Safety and Licensing Board (Board) should dismiss the NRDC contentions (Contentions 1-5) which are the subject of this motion because there is no genuine issue as to any material fact and, therefore, the NRC Staff is entitled to a decision as a matter of law.
II.
INTRODUCTION AND BACKGROUND This proceeding began pursuant to the Federal Register notice of oppor-tunity for public participation in the proposed NRC licensing action for amendment to Special Materials License SN'i-1773.1/ The amendment to Snit-1773 would authorize the Applicant, Duke Power Company, to transport spent nuclear fuel from the Oconee Nuclear Station for storage in the 1/
34 Fed. Reg. 32905, 2235 129
. scent fuel pool located at the McGuire Nuclear facility in accordance with Duke Power Company's application dated fiarch 9,1978.
Natural Resources Defense Council (NRDC) was admitted as an Intervenor on a discretionary basis in the above-referenced docket by Order of February 13, 1979.
The Atomic Safety and Licensing Board (Licensing Board) by Order of April 12,1979 has set the hearing for June 19-29, 1979.
The Licensing 8 card's April 12, 1979, set May 4,1979 as the date summary disposition motions are due. A Board Order of May 4,1979 extended this date to May 11, 1979.
III. GENERAL POINTS OF LAW The requirement that there be a factual basis for each contention in issue in a Nuclear Regulatory Commission proceeding derives from two
- 1) the contention requirement of 10 C.F.R. 52.714 and 2) the sou rces:
summary disposition provisions of 10 C.F.R. 32.749. As will be shown below, a motion to dismiss will lie on the basis of either rule.
A.
Factual Bases for Contentions Under 10 C.F.R. Section 2.714(a) 10 C.F.R. Section 2.714(a) requires that there be a factual basis for 2235 130
- each contention set forth in a petition to intervene.O That Section states:
"...the petitioner shall file a supplement to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity."
Prior to any hearing, the Atomic Safety and Licensing Board nust assure itself that each contention presents a genuine issue appropriate for resolution in the proceeding.
"Before commencing an evidentiary hearing, a licensing board must, of course, pass upon the sufficiency of every contention contained in an intervention petition which has previously been granted.
And... the board is to exclude from consideration at that hearing any contention which does not present a genuine issue appropriate for resolution in the proceeding.
Stated otherwise, the hearing is not to embrace a contention which either (1) as presented, fails to satisfy the requirements of 2.714; or (2) can be summarily Section 2.749 of the rules of practice.gns of rejected on the merits under the provis As an illustration of this principle, in the Beaver Valley case, the Appeal Board stated that a Licensing Board:
-1/
See Duquesne Liaht Co., et al (Beaver Valley Power Station, Unit No.1), ALAB-108, 6 AEC 243, 245 (April 2,1973); Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALA8-146, 6 AEC 631, 633 (Sept.14,1973); Wisconsin Electric Power Co., et al.
(Point Beach Nuclear Plant, Unit 2), ALAB-137, 6 AEC 491, SOS (July 17, 1973).
2]
Mississiooi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALA3-130, 6 AEC 423, 424-25 (June 19,1973).
2235 131
. "... must be satisfied, with respect to each con-tention which the petitioner seeks to litigate, that a cenuine issue in fact exists.
Any con-tention which on preliminary examination does not survive the application of that standard is to be excluded gom consideration at the evidentiary hearing."-
[Emphasisadded]
As will be shown by the attached Staff affidavits, many of the Inter-venor's contentions lack a sufficient factual basis to be allowed to go to hearing in this proceeding. The inadequacy of the Intervenor's position is spotlighted by the Intervenor's discovery responses to the Staff interrogatories and to the Applicant's interrogatories both of which asked for the factual bases for Intervenor's contentions.
Admissions of the Staff and of the Applicant in response to discovery requests by the Intervenor as well as responses of both the NRC Staff and the Applicant to Intervenor's interrogatories further highlight the lack of a factual bases for Intervenor's contentions.
3.
Summary DisDosition Under 10 C.F.R. Section 2.749 In addition to the factual basis requirement of Section 2.714, the Commission's rules provide that a moving party is entitled to summary disposition if it can be shown that there are no material issues of fact to be adjudicated at the hearing.
10 C. F. R. $2. 749.
That Section states:
-1/
Duquesne Light Co., et al. (Beaver Valley Power Station, Unit No.1), ALAB-109, 6 AEC 243, 245 ( April 2,1973).
2235 132
. Summary Disposition on Pleadings 22.749 Authority of presiding officer to dispose of certain issues on the pleadings.
(a) Any party to an initial licensing proceeding may, at least forty-five (45) days before the time fixed for the hearing, move, with or without supporting affidavits, for a decision by the presiding officer in that party's favor as to all or any part of the matters involved in the proceeding.
The rules governing summary disposition are analogous to the law of summary judgment in the Federal Courts under the Federal Rules of Civil Procedure,1/ n that the noving party must demonstrate that there is no i
genuine issue of fact remaining to be decided and that the uncontro-verted facts entitle him to judgment as a matter of law.2/ Affidavits setting forth the material facts about which there are no genuine issues to be heard may accompany the motion to dispose of issues on the pleadings, and the affidavits may be supplemented or opposed by despositions, answers to interrogatories, or further affivadits. /
Summary disposition is appropriate in administrative hearings because it makes possible the prompt disposition of a case on its merits without a
~1/
Alabama Power Company (Joseph 'i. Farley Plant, Units 1 and 2),
ALAB-182, 7 AEC 210, 217 (flarch 7,1974); Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 78 ('iay 17,1974); Gulf States Utilities Conpany (River Send Station, Units 1 and 2), LBP-75-10,1 NRCI 246, 247 (itarch 20,1975).
2/
Adikes v. Kress, 398 U.S. 144, 158-161 (1970).
3f 10 C. F. R. 52. 749(b).
2235 133
. formal hearing by permitting a party to pierce his opponent's pleadings by presenting material evidence in affidavit fonn which establishes that no factual dispute exists.1/ The Staff submits that such a procedure for saving hearing time by culling out baseless allegations is particu-larly appropriate in the instant case since, as will be shown below by affidavits, and by the parties' discovery responses that there is no factual basis for many of the Intervenor's contentions.
IV.
SUPPORTING BASIS FOR MOTION FOR
SUMMARY
DISPOSITION A.
NRDC Contention 1 is stated as follows:
The proposed action is a step in a proposed program to handle the shortage of spent fuel storage space by shipping and storing spent fuel away from the reactor where it was generated.
The proposed action has no independent value in solving the spent fuel storage problen and is inherently premised on the near-term construction of an interim away from-reactor storage facil-ity.
The proposed action, if taken, will bias the final decision on whether to approve the program by foreclosing at -sactor options at both Oconee and McGuire. The proposed action is therefore inconsistent with the conditions 1 and 2 laid down by the NRC in promulgating the criteria for approval of interim spent fuel storage.
(40 Fed. Rea. 42801).
Thus, the proposed action cannot be acted upon until completion of impact state-ments on the proposed program now being conducted by DOE (Stor-age of U.S. Spent Power Reactor Fuel (00E/EIS-0015-D) August 1978, and Supplement, December 1978; Storage of Foreign Spent Power Reactor Fuel (00E/EIS-0040-0) December 1978; Preliminary Estimates of the Charge for Spent-Fuel Storage and Disposal Services (00E/ET-0050) July 1978; Charge for Spent Fuel Storage (00E/EIS-0041-0) December 1978; and NRC (Draft Generic Environ-mental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (NUREG-0404) (Tr. 7-48).
1/
Gellhorn and Robinson, Summary Judament in Administrative Adjudication, 84 Harvard L. Rev. 612 (1971).
2235 134
. NRDC'S Contention 1 appears to contest the following statement contained in the Commission's " Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel" (Commission Statement) at 42 Fed. Rec. 42801:
The Commissionjas concluded that there should be no such gen-eral deferral,- and that these related licensing actions may continue during the period required for preparation of the generic statement, subject to certain conditions.
In reaching this conclusion, the Commission has considered the following specific factors:
(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 tyoe; (2)
It is not likely that the taking of any particular licensing action of this type during the time frame under consideration would constitute a commitment of resources that would tend to significantly foreclose the alternatives available with respeg to any other individual licensing action of this type;
.... [ Emphasis added.]
Significantly, NRDC Contention 1 raises issues with respect to only Factors 1 and 2.
In dealing with interim proposed actions, the Commis-sion Statement directed that the five factors it specified be applied,
_1_/
Such a deferral refers to " licensing actions intended to ameliorate a possible shortage of spent fuel storage capacity..." The Commission indicated that those actions included, but were not limited to, "the issuance of operating license amendments to permit increases in the storage capacity of reactor spent fuel pools or reprocessing plant spent fuel storage pools, or the licensing of independent spent fuel storage facilities..." 40 Fed. Rea. 42802, 2_/
The Commission further indicated that "[s]ince the Commission's general conclusions with respect to the five factors, as set forth above, may not fit the factual circumstances of particular licensing actions, the five factors will be applied, weighed and balanced within the context of these statements or appraisals in reaching licensing determinations."
2235 135
t weighed, and balanced with respect to individual licensing actions to ameliorate shortages of spent fuel capacity that might occur at a utility's nuclear reactor site. No one factor is nececsarily controlling in applying the five factors. Portland General Electric Company, et al.
(Trojan Nuclear Plant), ALAB-531, Slip. Op., ('4 arch 21,1979).
Briefly sumnarized, the affidavit of Messrs. Brett Spitalny and John Roberts (attached) and the Environnental Impact Appraisal (EIA) (1978) show that the proposed action to transport and store three-hundred, 270 day-old Oconee spent nuclear fuel assemblies in the McGuire Unit 1 spent fuel pool, (1) has a significant usefulness relatively independent of other interim actions Duke Pcwer Company may be considering to ameliorate its impending shortage in spent fuel storage capacity at its Oconee facility, and (2) does not constitute a commitment of resources that would tend to significantly foreclose other alternatives available to Duke Power Company to aneliorate a possible shortage of spent fuel storage capacity at Oconee.
With respect to Factor 1, the Staff affidavits, the EIA, and the Staff responses and Applicant responses to discovery requests show that the propose 6 action would immediately ameliorate Applicant's shortfall in spent fuel storage capacity at Oconee in late 1979.
The utility or usefulness of the proposed action does not depend on the prior approval of other actions to ameliorate Duke Power Company's 2235 136
_g_
problem at Oconee.
Nor does it depend on subsequent actions of a simi-lar type that are being considered by Duke Power Company to solve its immediate short-term storage problem.
Spitalny and Roberts Affidavit,
- p. 3, EIA, pp. 61-62, Applicant's Response of March 27, 1979 to NRDC Interrogatories, pp.1-19, e.g., p.15; NRC Staff Response of April 17-18, 1979, at p. 2, to NRDC Request for Admissions of April 2,1979.
With respect to Factor 2, there is no material factual basis to indicate that approval of the proposed action will tend to "significantly foreclose" other similar interim options being considered by Duke Power Company.
Spitalny and Roberts Affidavit, pp. 3-4, EIA, p. 63; pp. 49-59. Applicant response of March 27,1979, pp.1-18, e.g., pp. 6-10, to NRDC interroga-tories of March 8,1979. Clearly, the factual evidence is otherwise.
A brief review of the discovery material shows that Duke Power Company has already applied for an amendment to increase the storage capacity at its Oconee Unit 1 and 2 spent fuel pools, that it is considering other alternatives, and that it has already modified the Oconee Unit 3 spent fuel pool to alleviate its spent fuel capacity shortage at the Oconee site.
Applicant's response of March 27, 1979 to NRDC's interrogatories of March 8,1979.
Factors 3-5 must also be applied, weighed, and balanced, but these factors are not raised as issues by NRDC in NRDC Contention 1.
Evalua-tion of Factors 3-5 demonstrate that:
(1) any environmental impacts 2235 137
. that may occur due to radiation dose exposure are insignificant or neg-ligibly small. EIA, chs. 5 & 6, EIA, pp. 59, 65; Parsont Affidavit, Nehemias Affidavit, Spitalny and Roberts Affidavit; and there are no other environmental impacts with respect to air, aquatic or terrestrial environs (EIA, chs. 5 & 6; p. 59); (2) there are no technical issues that have arisen with respect to the proposed action that cannot be resolved within the context of the proposed transshipment action (EIA 64);
and (3) the economic costs are substantial if deferral or severe restric-tion of the proposed action results in reactor shutdown, (EIA, Table 10-1,
- p. 58; Applicant's Response to NRDC Discovery, p.11) and would neces-sarily result in substantial harm to the public interest. The Commis-sion has found that in the overall balance the benefit of providing needed electrical power is " priceless." Vemont Yankee Nuclear Power Corporation (Vermont Yankee Station), ALAB-179, 7 AEC 159,173 (1974).
Thus, "...the benefit of meeting real demand is enormous Vermont Yankee Station, supra, at 175-71.
-- and the adverse consequences of not meeting that demand are serious
[Nine Mile Point, supra, at 364, fn.
57.]."
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, at 169 (1978).
See, generally, Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, at 364, fn. 57.
"Need for Power" from the Oconee facility is not directly in issue in this proceeding as a matter of fact, since no party nas raised it, 2235 138
. whether or not it could be in as a matter of law. Consideration of an amendment to a license requires only consideration of whether the amend-ment itself would bring about significant environnental impacts beyond those previously assessed and whether any unavoidable inpacts would on balance require denial of the amendment application.
florthern States Power Company, et al. Prairie Island fluclear Generating Plant, Units 1 and 2), ALAB-455, 7 PlRC 41, at 46-47, fn. 4.
Further, the Staff's EIA (pp. 59, 65), the Staff affidavits, demonstrate there are no significant environmental impacts from the proposed action.
See, e.g. Parsont Affidavit; Spitalny and Roberts Affidavit; flROC's responses of April 16, 1979 to Applicant's interrogatories of tiarch 28, 1979; ilRDC's responses of April 11, 1979 to NRC Staff's interrogatories of tiarch 23, 1979; and the responses of the Staff of April 17 and April 18, 1979, and of the Applicant of April 17, 1979 to flRDC's Request for Admissions of April 2, 1979.
In short, no material fact is in issue with respect to the fact that the proposed action has no significant environmental consequences but the benefits flowing from the action are enormous when the five factors are applied, weighed, and balanced.
As well, no issues of material fact with respect to Factors 1 (" dependence") and 2 ("significant foreclosure of other interim alternatives") of the Comnission Statement are set 2235 139
. forth in NRDC's discovery responses, although NRDC has by mere unsup-ported statements argued that the proposed action will " bias" other interim actions.
NRDC Responses 1-50, particularly 12-15, 27-28, 39, and 42-43 of April 16, 1979 to Applicant's interrogatories of flarch 28, 1979.
Accordingly, the NRC Staff requests that NRDC Contention 1 be dismissed pursuant to 10 CFR 3 2.749(b) since there is no issue of material fact that would warrant hearings on that issue in this proceeding.
The scope of NRDC's Contention No.1 is a matter of separate concern as to exactly what issue NRDC is raising. NRDC's Contention 1 is not a model of clarity with respect to the issue it seeks to litigate, and its responses to discovery have not cleared the confusion greatly.
Appar-ently, in our opinion at least, NRDC is attempting to use this indi-vidual licensing proceeding on the proposed action as a forun to raise again the idea of a general deferral of interim licensing actions, simi-lar to the transshipment and storage action proposed by Duke, pending completion of the Commission's generic environmental impact statenent on licensing actions to resolve interim shortages of spent fuel storage capacity.
Intervenor's responses to interrogatories submitted to it by both the Applicant and Staff clearly indicate that NRDC wants the pro-posed action of Duke Power Company to be considered relative to the over-all national spent fuel storage shortage problem.
NRDC response 1.A, 2235 140
r and 1.8-E of April 11, 1979 to NRC Staff Interrogatory 1 of March 23, 1979; NRDC response of April 16, 1979 to Applicant's interrogatories of March 28,1979, pp. 5-5, paras.12-15.
("the crocosed program is a DOE proposal to build away-from-reactor storage capability for the nuclear industry...;" "... transshipment would have to be capable of solving the spent fuel storaqe problem [ meaning the overall national problen]
without depending upon use of another interim measure." [ Emphasis and connentadded]. We submit that NRDC has already lost this battle, if we are correct that what it seeks to do is litigate in this case (1) the issue of whether Duke Power Company's proposed action is dependent on solution to the overall, national spent fuel storage problem, (2) will "terd to bias" (as distinguished from significantly foreclose) the alternativcs being considered in the overall national DOE program, and (3), therefore, the proposed action canMt be acted on until completion of the proposed DOE program leading to establishment of sufficient permanent storage capacity.
Contrary to NRDC's position in this case, if we are correct in our interpretation of what NRDC's contention seeks to do, the Commission has already elected not to defer interim licensing actions to resolve short-term spent fuel capacity shortages pending completion of the Commission's generic environmental impact 3tatement on such interim actions.
40 Fed.
Rea. 42, 801 (1975).
The only issue that can be before this Board with respect to Factors 1 and 2, at least, are whether Duke's proposed action 2235 141
. has a utility that is relatively independent of other similar actions "of this type" -- meaning other actions to solve Duke's fuel storage capacity problem -- and whether "other actions of this type" to resolve Duke's fuel shortage capacity problem will be significantly foreclosed by the proposed action during the period that the overall problem is being considered.
Read in its broadest sense NRDC's assertion would mean that there can be no interim licensing actions until the Department of Energy provides permanent spent fuel storage, notwithstanding that the Commission has established a clear policy and procedure to the con-trary to resolve inmediate shortage problems at individual reactors 40 Fed. Reg. 42, 801 (1975).E For the foregoing reasons, the Staff requests the Licensing Board to disniss NRDC Contention 1 by sunnary disposition pursuant to 10 CFR 52.749.
B.
NRDC Contention 2 is stated as follows:
The proposed action is a najor federal action signifi-cantly affecting the quality of the human environnent and cannot be acted upon until preparation of a Final Environmental Impact Statement. (Tr. 48-60).
NRDC Contention 2 involves the ultimate issue required to be resolved in this case; that is, whether the proposed action will have a significant l_/
See also, the Commission's " Denial of Petition for Rulemaking,"
request for rulemaking submitted by NRDC, (42 Fed. Rec. 34391; July 5, 1977).
2235 142
. environmental impact such that the proposed action constitutes a major federal action significantly affecting the quality of the hunan environ-The flational Environmental Policy Act (flEPA) and the Commission's ment.
regulations require an environmental inpact statement if the activity 42 U.S.C. Section 4332(2)(c);
significantly affects the environment.
10 C.F.R. Section 51.5.
Othenvise -- no significant impacts -- a nega-tive declaration supported by an environmental impact appraisal is required.
10 C.F.R. Section 51.7.
NRDC acknowledges that resolution of its Contention No. 2 is tied to the outcome of its Contentions 3, 4, 5, and 6.
NROC response of April 16, 1979 para. 51, p.14. to Applicant's interrogatories of March 28, 1979.
In part, however, 'lRDC's position begs the question since NRDC Conten-tions 3 and 5, at least, deal with alternatives to the proposed action.
Yet, consideration of alternatives is not required in this case unless there are significant impacts from the proposed action in the first plac] requiring an environmental impact statement.
The five factors set forth in the Comnission Statement have to be considered in any event, however. 42 Fed. Reo. 42801.,3ierra Club v. 'torton, 510 F. 2d 813, 825 (5th Cir.,1975); First National Bank v Richardson, 5 ERC 1830 (7th Ci r., 19 73 ).
Duquesne Light Company, et al. (Beaver Valley Power Sta-tion, Unit No.1), LBP78-16, 7 NRC 811, 815-817 (1978), Consumers Power Concany ('iidland Plant, Units 1 and 2), ALAB-458, 7 NRC 155 (1978). H.
Northern States Power, Co. (Prairie Island Nuclear Generating Plant, 2235 143
-~
t Units 1 and 2); Vernent Yankee fluclear Power Coro. (Vermont Yankee fluclear Station) ALAB-455, 7 flRC 41 (1978).
Briefly stated, the Staff's position is set forth in the EIA (see EIA, chs. 5 & 6; pp. 49-59; pp. 61-65) and affidavits submitted by Messrs. Roberts and Spitalny, Spitalny, re:
flRDC Contention 2, Spitalny, re:
flROC Contention 2, tiehemias, and Parsont which demonstrate that the proposed action to transfer 300, 270-day old spent fuel assemblies is an insignificant action with respect to environmental considerations.
There are negligibly small effects on the aquatic, air, or earth environ-ment.
EIA, Ch. 5-7; EIA, p. 65; Spitalny Affidavit re:
Contention 2.
The Staff affidavits show that radiation exposure either at Oconee or McGuire or along the route of transportation from the proposed action is negligibly small and, therefore, insignificant.
flehenias Af fidav it, pp. 2-5.
Parsont Affidavit, Tables II and IV.
And the risks to the public from such activity are insignificant or negligible.
EIA, Chs. 5
& 6, flehemias Affidavit, Parsont Affidavit.
The Staff Environmental Impact Assessment (EIA) and the Staff affidavits indicate that the quantity of fuel to be. moved through the population zone will have no significant effect on the environment.
EIA Chs. 5-6; pp. 59, 65, Parsont Affidavit Tables I-IV; flehemias Affidavit.
The Inter /enor's position is based on subjective statements listing actions that it argues, rather than demonstrates as objective fact, 2235 144
. makes the proposed action one "significantly affecting the quality of the human environment."
Intervenor was asked in discovery in Staff Interrogatory No. 2 to identify particular elements of the proposed action which NRDC contends makes the proposed action one significantly affecting the quality of the hunan environnent and to identify where the NRC Staff's EIA is incomplete or inadequate.
In response, NRDC gave no objective facts in support of its argument which would tend to demon-strate one way or the other whether the proposed action has a signifi-cant effect on the human environnent.
NRDC response of April 11, 1979 at pp. 3-4 to NRC Staff interrogatory 2 of March 23, 1979; NRDC's response of April 16,1979, at p.14, to Applicant's interrogatory 51 of '4 arch 28, 1979.
Thus, no disputed material facts exists with respect to whether the proposed action to transship Oconee fuel and store it at McGuire will significantly affect the quality of the hunan environment since the Staff affidavits show without factual contradiction by NRDC that the type of proposed action will have insignificant environmental impacts.
Consequently, the NRC Staff requests the Board to grant summary dis-position on NRDC Contention 2 pursuant to 10 CFR Section 2.749 since there are no issues of material fact for hearing.
2235 145
. C.
NRDC Contention 3 states as follows:
The following alternatives to the proposed action have not been adequately considered:
a.
The alternative of using Oconee as a last-on, first-off, base-loaded plant to reduce spent fuel discharge require-ments is not considered, b.
The alleged economic cost of increased purchases of power if Oconee is shut down is speculative because there is insufficient information to justify the conclusion, c.
There are no technological or economic disadvantaaes to expanding spent fuel pool capacity at Oconee if it is assumed that all Oconee spent fuel will be stored there until it is shipped to a legally approved permanent star-age facility for nuclear waste. This option will reduce the risks of routine, accidental and intentional (sabe-tage) releases of radioactivity during transportation, d.
Applicant has not fully utilized all of the potential it has to compact spent fuel in existing pools at Ocoaee and has not provided adequate justification for the asser-tion that storage expansion at Oconee, Units 1 & 2, is not viable.
(Tr. 60-77).
NROC Contention 3 raises the issue of alternatives to the proposed action to transship and store Oconee spent fuel at McGuire to resolve the Duke Power Company spent fuel storage capacity shortage at the Oconee site.
With respect to NRDC Contention 3(a) and 3(b), there is no material factual issue as to whether transportation and storage of Oconee spent nuclear fuel at 'icGuire is the preferred alternative. The Staff EIA and 2235 146
, Staff Affidavits which are uncontradicted by NRDC's response of April 16, 1979 to Applicant's interrogatories to NRDC of March 28, 1979 and NRDC's response of April 11, 1979 to NRC Staff's discovery of March 23, 1979, show that the environmental impacts of the proposed action will be negligibly small and therefore insignificant.
Accordingly, with respect to NRDC Contentions 3(a) and 3(b), it is not necessary to choose anong alternatives to the proposed action on the basis of the present evidence or the infornation obtained fron NRDC during discovery. Clearly, if the impacts of the proposed action are negligible, the impacts of any alternative nust be equal or greater, and it has been held that "an alternative which would result in similar or greater harm need not be discussed." Sierra Club v. Norton, 510 F.2nd 813, 825 (5th C4 r.1975).
Further, consideration of alternatives to a proposed action under NEPA are not required "either as a matter of law or as a matter of logic," where it is shown that the proposed action will not have significant environmental impacts and that the negative declaration is appropriately supported by the Environmental Impact Appraisal.
10 C. F. R. 3 51. 7 ; Duouesne Light Comoany, et al. (Beaver Valley Power Station, Unit No.1), LBP-78-16, 7 NRC 811, 817 (1978); g.
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155,156 (1978) ("NEPA requires an agency to consider whether there are environmentally preferrable alternatives to a given proposal.
If none exist, there need be no cost-benefit balancing of alternatives."
2235 147
. (Headnote)). Apparently, NRDC Contention 3(a) and 3(b) attempt to raise in this proceeding issues about how in detail Duke Power Company should operate its Oconee facility plant under a validly held operating license for the Oconee Nuclear Power units. Where it is shown that the environ-nental impacts of the proposed action are negligibly small and therefore insignificant, such considerations are inappropriate.n the review of the proposal to transport and store Oconee spent fuel at McGuire, and the Appeal Board has so held:
"The issuance of operating licenses for the two Prairie Island units was preceded by a full environmental review, including a consideration of alternatives.
See LBP-74-17, 7 AEC 487 (1974), affirmed on all environmental questions, ALAB-244, 8 AEC 857 (1974). Nothing in NEPA or in those judicial decisions to which our attention has been directed dictates that the same ground be wholly replowed in connec-tion with a proposed amendment to those 40-year operating licenses.
Rather, it seems nanifest to us that all that need be undertaken is a consideration of whether the amendment itself would bring about significant environ-mental consequences beyond those previously assessed and, if so, whether those consequences (to the extent unavoid-able) would be sufficient on balance to require a denial of the amendment application. This is true irrespective of whether, by happenstance, the particular amendment is necessary in order to enable continued reactor operation (although such a factor might be considered in balancing the environmental impact flowing from the amendment against the benefits to be derived from it).
In this connection, it should be noted that the Prairie Island Units were licensed for operation on the basis that they would generate radioactive wastes in a certain amount over the full term of their licenses. The amendment in question does not alter the situation; i.e., the proposed increase in the storage capacity of the spent fuel pool would not occasion the generation of more wastes than had been previously projected." Northern States Power Company (orairie Island Nuclear Generating Plant, Units 1 and 2),
Vermont Yankee Nuclear Corocration (Vermont Yankee Nuclear Station), ALAB-4SS, 7 NRC 41, 46-47, f.n. 4 (1978).
2235 148
. Since the EIA and the proffered Staff affidavits show that the impacts from the proposed action are negligible and therefore insignificant there is no occasion to consider whether the amendment itself, or pro-posed alternatives to that amendment, would bring about significant environmental consequences beyond those previously assessed with respect to authorization of the issuance of the operating licenses for the Oconee units.
See Sierra Club v. Morton, suora.
Similarly, with respect to NRDC Contention 3(c) and 3(d), it is inappro-priate to consider the alternatives of expanding the spent fuel pool capacity at Oconee or to consider diffarent methods of expansion of the spent fuel pool capicity at the Oconee site including re-racking, re-racking with poison racks, construction of a separate spent fuel pool facility, or physical expansion of the existing spent fuel pool facility at Units 1 and 2.
However, if alternatives such as 3(c) and 3(d) to the proposed action are required to be considered, Staff evi-dence set forth in the EIA and Staff affidavits demonstrate that the alternatives of expansion of the spent fuel storage capacity at the Oconee site by re-racking, physical modification of spent fuel pools, construction of new fuel pools, or use of the full-core reserve (FCR) are not viab'e options to the proposed transshipment action in terms of impacts on the environment, including impacts from radiation exposure, in terns of costs, or in terns of availability on a time basis.
. Brett S. Spitalny and R. Daniel Glenn; Parsont Affidavit; Nehemias Affidavit; Roberts and Spitalny Affidavit; Spitalny Affidavit re:
NRDC Contention 3.
NRDC responses to dScovery requests assert no specific or particular-ized material facts with respect to alternatives in contradiction of the Staff's evidence proffered in support of the summary disposition motion on Contentions 3(c) and 3(d), if, indeed, alternatives have to be con-sidered since the proposed action is shown to have negligibly small or insignificant environmental impacts. NRDC response of April 16,1979 to Applicant's interrogatories of March 28, 1979, and NRDC's response of April 11,1979 to Staff's interrogatories of March 23, 1979.
Accordingly, the Staff requests the Licensing Board to grant its motion for summary disposition on Contention 3 pursuant to 10 CFR $ 2.749(1) as a matter of law because alternatives to the proposed action need not be considered where the impacts are insignificant, and (2) as a natter of fact because there are no material facts in issue that would warrant a hearing.
D.
NRDC Contention 4 states as follows:
The proposed action increases the exposure to radiation of workers and the general public beyond what is ALARA.
2235 150
. a.
ALARA can be achieved by on-site expansion of spent fuel pool storage capacity at Oconee, including building another spent fuel pool.
b.
The residual health risks which remain even if the present NRC regulations on exposures to workers are met are major costs of the proposed action which tip the balance again.t the proposed action.
(Tr. 77-85).
NRDC Contention 4(a) states:
The proposed action increases the exposure to radiation workers and the general public beyond what is ALARA.
a.
ALARA can be achieved by on-site expansion of spent fuel pool capacity at Oconee including building another spent fuel pool.
NRDC Contention 4(a) raises the issue of whether the proposed transship-ment of Oconee spent fuel to the 'icGuire Nuclear Station for storage will involve some radiation exposure to the public and to workers that is not "as low as reasonably achievable" ("ALARA") under Commission criteria.
Briefly sunmarized, the affidavit of Dr. John Neniahas demonstrates that the addition of a one-time dose of 2-20 man-rens to workers for spent fuel transfer and storage could not significantly affect the overall balance made in the context of accepting the occupational doses incurred during operation of the plant. The additional risk associated with the radiation doses from eacn of several interim near-tern alternatives are insignificant.
Nehemias Affidavit pp. 3-4 The total man-rem doses 2235 151
. projected to result from either transshipment to McGuire Station or re-racking the present spent fuel pool at Oconee would generally be com-parable. Therefore, from an ALARA standpoint, there is no basis for con-cluding that either proposed alternative is clearly to be preferred.
No significant dose-saving would be expected to result from the selec-tion of either one. Nehemias Affidavit p. 4 The option of constructing an additional spent fuel pool at Oconee would still require transfer of the fuel to and from shipping casks, and transshipment of the fuel affected, although the distance of the shipment would be minimal. The net effect would be a very minor reduction in overall radiation dose to workers. The saving in exposure would not justify the substantial additional expense with respect to the option of constructing an additional spent fuel pool at Oconee.
Nehemias Affidavit
- p. 3-4 The cost are estinated to be from $7000-312,000 per assembly by the Staff (EIA, Table 10-1, p. 58) and $34,500 per assembly by the Applicant ( Applicant response of fiarch 27, 1979 to NRDC interrogatory of flarch 8,1979, p.13).
Expanding the storage capacity of the present spent fuel pool at Oconee would involve radiation exposures principally to the workers involved in the proposed plant modifications, although the radiation doses to the public and the workers resulting from the trans-shipment to 'icGuire Station would be completely avoided. However, the estimate of radiation 2235 152
. doses to the workers and the public from transshipment to the public and to the drivers for 300 shipments is negligibly small, and, therefore, insignificant in terms of environmental impact. Nehemias Affidavit
- p. 4 On the other hand, NRDC responses to both Applicant's discovery requests and Staff's discovery requests show that NRDC's contention is not based on objective facts, but on a mere naked assertion that ALARA can be achieved by on-site expansion of spent fuel pool storage capacity at Oconee, including building a separate spent fuel pool.
Nor does the Affidavit of Dr. Cochran filed with NRDC's motion for Sumary Disposi-tion of May 2,1979 with respect to Contention 4.
Dr. Cochran's affi-davit is merely a lengthy and subjective critique and suggestion about how the NRC Staff should conduct its licensing review. There are no separate calculations, no objective facts, and no objective analyses, set forth by Dr. Cochran.
Clearly, either transshipment to McGuire Station as proposed by the Applicant or reracking the present spent fuel pool at Oconee are generally comparable in terms of ALARA. Accordingly, there is no basis for concluding that either is clearly to be perferred or that any signficant dose saving would be expected to result from the selection of either one.
Nehemias Affidavit, pp. 3-4.
2235 153
. The closest NRDC comes to giving any objective factual basis in support of Contention 4(a)is a citation to a Department of Energy (D0E) document.
NRDC cited to a 00E assumption that there may be economic and other advantages to utilities of keeping spent fuel at their own reactor sites and that DOE indicates that there are monetary benefits available. NRDC answer 72 of April 16, 1979 to Applicant's question 72 of March 28, 1979. However, the interrogatory called for specific answers describing what these benefits are in concrete specific terns.
NRDC claims that radiation exposures could be reduced to negligible levels by simply expanding the spent fuel storage capacity at Oconee either by re-racking the present spent fuel pool to permit storage of a larger number of fuel elements or by building another separate independent spent fuel pool facility at the Oconee reactor site.
However, Intervenor's responses to Applicant's interrogatories demonstrate the lack of a factual basis for its conclusory statements.
For example, Intervenor's assert no dosage to be ALARA with respect to workers.
Applicant's Question and NRDC's answer 125 of April 16, 1979.
It has not made any analysis to quantify the contribution the proposed action will nake to workers beyond ALARA. Applicant's questions 126-127 and NRDC's answers 126-127 of April 16, 1979. NRDC has not made any analysis to quantify the contribution the proposed action will make to the general public "beyond" ALARA.
NRDC has no position on whether there will be additional risk and exposure under the proposed activity beyond the risks and 2235 154
. exposures either to workers or to the general public associated with the shipment of Oconee spent fuel to an ultimate repository, although it makes a statement to the effect that it seems reasonable to assume that such would be the case. Applicant's questions and NROC answers 128-129 of April 16, 1979.
NRDC has made no analysis of application of ALARA to all phases of the transshipment activity.
Applicant's questions and NRDC's answers 130-131 of April 16, 1979.
NRDC has made no analysis of any specific actions which would increase the radiation exposure to workers or the general public beyond what is ALARA. Applicant's ques-tions 132-133 and NRDC's answers 132-133 of April 16, 1979.
In its answer 134 of April 16, 1979 to Applicant's question 134, NRDC indicates that it has no position on whether a proposed alternative would be ALARA if Applicant complies with all specific dose criteria and radiation limit criteria inposed by the Commission or the Department of Transporta-tion regulations.
Nor has NRDC made any analysis of what doses to workers will result from "on-site expansion of spent fuel pool storage capacity at Oconee, including building another spent fuel pool". Applicant's question and NRDC's answer 137 of April 16, 1979.
Intervenor has made no analysis whatsoever of methods of an on-site expansion of spent fuel pool storage capacity at Oconee which will not be beyond what is ALAM with respect to radiation exposure.
It has not analyzed methods or indicated the total man-rem dose that would be received in accomplishing an expansion 2235 155
. of on-site storage capacity at Oconee in a separate spent fuel facility and transferring spent fuel to the expanded, separate storage area.
Applicant's question and NRDC's answers 139-40 of April 16,1979 in response to Applicant's interrogatories generally on Contention 4, i.e.,
Interrogatories 120-135; Interrogatories 136 and 141.
NRDC has not done an analysis sufficient to answer where the independent storage facility would be located on the Oconee site; how much that facility would cost, what the environmental impact associated with the construction of such a facility would be; whether the spent fuel produced at either of the Oconee units needs to be packaged and shipped to the separate spent fuel facility; when this facility would be able to receive spent fuel; how many spent fuel assemblies could be stored under this alternative; or what the dosage to the worker and the general public associated with tha, spent fuel storage activity would be.
It also says that it does not consider on-site storage of spent fuel or any other alternative to transportation acceptable but only that on-site storage is the least unacceptable alternative to the demonstrated safe means of utlimate disposal.
NROC's answers, pp.17-30 of April 16,1979 to Applicant's question 71-150 of March 28, 1979.
Several examples of NRDC's discovery responses reflect the lack of basis for its factual case:
Interrogatory 71 (Applicants of 'iarch 28,1979): What
" technological" methods are acceptable to you with respect to storage of spent fuel?
2235 156
. Answer 71 (NPDC of April 16, 1979): As a general rule, only those " technological" methods that are protective of the public health and safety are acceptable.
It is clear from NRDC's responses to discovery requests that it has no factual basis whatsoever in support of the assertions of its contention.
Accordingly, the Staff requests that NRDC Contention 4(a) be dismissed pursuant to 10 C.F.R. Section 2.749 since there is no issue of naterial fact warranting a hearing on this issue.
NRDC Contention 4(b) is stated as follows:
The proposed action increases the exposure to radiation of workers and the general public beyond what is ALARA.
b.
The residual health risks which remain even if the present NRC regulations on exposures to workers are met are major costs of the proposed action which tip the balance against the proposed action.
(Tr. 77-85).
This contention raises the issue of the cancer and genetic effects in the exposed population. NRDC responsa 142 of April 16,1979 to Applicant's question 142 of March 28, 1979.
Briefly summarized, the affidavit of Dr. Michael Parsont demonstrates that the cancer and health effects from the proposed action are negli-gently small and, therefore, insignificant. Genetic hetith effects for the first generaticn are 0.003 genetic health effects; at equilibrium 2235 157
. for future generations there are 0.2 total genetic health effects pro-jected. Parsont Affidavit, Table II.
Compared with this, expansion of spent fuel capacity of the Oconee Units 1 and 2 spent fuel pools (re-racking) would result in 0.002 - 0.004 genetic health effects for the first generation and 0.1-0.3 total genetic health effects in future generations at equilibrium.
Parsont Affidavit, Table II.
Similarly, the somatic effects would be negligibly small.
Parsont Affidavit, Table IV.
Thus, compared to each other the health effects projected from either the proposed transshipment action or re-racking are indistinguishable.
Either action by itself will result in extremely low health effects.
The Parsont Affidavit thus shows that the impacts from the proposed action are negligibly small.
Parsont Affidavit, Tables II and IV.
On the other hand, NRDC has no factual basis for its naked assertion that residual risks from the proposed action are major costs which tip the balance against the proposed action.
NRDC discovery responses pp.
18-25 of April 16, 1979 to Applicant's discovery interrogatories71-150, pp.17-30, of March 28, 1979; NRDC's discovery response, pp. 7-8 of April 11, 1978 to NRC Staff's discovery questions, pp. 8-9, of March 23, 1979.
NRDC has made no analysis of residual risks, radiation exposure dose, or dose impacts in support of its contention.
Thus, it has made no analysis 2235 158
. of the residual risks associated with on-site storage in existing spent fuel pools, although it genert.lly acknowledges that there are such residual risks.
It has made no analysis of the residual risks, i.e.,
health effects associated with separate spent fuel pools, although sonehow it makes the conclusion that there are such residual risks associated with such activiti*s.
It has made no analysis of the incre-mental residual risks associated with the prooosed activity in cc.
son to the various other types of on-site storage, flRDC has not identified groups of workers which it alleges will have increased exposure, nor what the expected health effects from such exposure would be. NRDC fails to define in specific factual terns what the " major costs" it refers to are, as requested by the Applicant. Nor does it indicate a cost-benefit balance or any other analysis with respect to its position that the residual health risks will tip the balance against the proposed action.
NRDC response 150 to Applicant's question 150.
It did not or could not answer the question whether there could be any residual health risks present if Applicant meets all appli-cable specific dose rate and radiation limit criteria specified in various regulations.
NRDC response 148 to Applicant's question 148.
Nor has it made an analysis of the proposed alternative or any of the other alternatives upon which the assertion in its contention are based.
NRDC response 150 to Applicant's question 150.
2235 159
. NRDC's responses to discovery requests made by both the Applicant and the Staff show that it has absolutely no factual basis for its general broad based allegations as set forth in Contention 4(b). The Staff's evidence shows that any health effects that could occur are negligibly small for either transshipment or re-racking, or for any other reason-able alternative.
Accordirgly, the Staff requests that it be granted summary disposition pursuant to 10 C.F.R. !?.749 on the issue raised by NRDC in its Conten-tion 4(b) since there is no material issue of fact warranting a hearing.
E.
Contention NRDC 5 is stated as follows1 Applicant overstates the need for action at this time by using the one-core discharge capacity reserve standard as if it were a requirement where in fact it is not a requirement of NRC regulations, a.
Either Applicant should be bound to comply with the one-core discharge capacity standard (as a license condition) or it should have to demonstrate on a cost-benefit basis that holding that capability is more valuable than the costs of shipment off-site of one-care of spent fuel (Tr.85-127).
NRDC Contention 5 raises the issue of whether the Commission has a design requirement that a utility must maintain sufficient space in its spent fuel pools to discharge a full nuclear core--a Full Core Reserve (FCR)--
from the reactors at a site.
Contention 5(a) raises the issue of whether a utility should have to differeniate on a cost-benefit basis between an 2235 160
1 alternative action that would possibly deny the Dake Power Co. operating flexibility and the proposed action to transship and store Oconee spent fuel at McGuire.
Bot'n issues involve operating procedure policy alterna-tives that a utility may wish to follow.
Accordingly, the following words of the Trojan (Spent Fuel Pool Expansion) Licensing Board are apropos in this case since the Staff evidence (EIA, p. 58, and all Staff affidavits proffered in support of the Staff's summary disposition motion) show that the environmental impacts of the proposed action will be negligibly small, i.e., no substantial adverse environmental impacts:
98.
It is not necessary, however, to choose among alter-natives or to predict needs on the basis of the present evidence.
In our findings, supra, we have determined that the adverse environmental impacts of this license amend-ment will be negiligibly small. Clearly, if the adverse impacts of the proposed action are negligible, the impacts of any alternative must be equal or greater, and it has been held that 'an alternative which would result in simi-lar or greater harm need not be discussed' (Sierra Club
- v. 'iorton, 510 F.2d 813, 815 (5th Cir.1975).
As to the question of need for power, as we view it, that question could only be considered against the background of a cost-benefit balance, and absent any substantial environ-mental costs, any benefit whatever would tip the scale.
We therefore believe that we need not consider alterna-tives or the need for the modification in any detail.
Indeed, in the opinion of this Board, not only is such consideration unnecessary, it is very inadvisable, since it infringes upon those very prerogatives and duties of corporate management which we should eschew usurping. To be sure, were there substantial adverse environmental impacts, our duties under NEPA would require us to balance them against benefits and examine less damaging alterna-tives.
But where, as here, the proposed action has no such impacts, we can leave considerations such as economic advantage, capacity requirements, and the vigor with which offsite storage should be pursued to those within the ccmpany to whom such decisions are normally entrusted.
Portland General Electric Company, et al. (Trojan Nuclear Plant), LBP-78-32, 8 NRC 413, 454 (1987).
2235 161
. Cf. Consumers Power Conoany (Midland Plant, Units 1 and 2), ALAS-458, 7 NRC 155,168 (1978) (NEPA requires an agency to consider whether there are environmentally preferable alternatives to a given proposal.
If none exist, there need be no cost-benefit balancing of alter-natives.
Supra, at 156); Duouesne Light Company, et al.
(Beaver Valley Power Station, Unit No.1), LBP-78-16, 7 NRC 811, 817 (1978) ("... considerations of cost-benefit and alternatives to the proposed action under NEPA are not required either as a matter of law or as a natter of logic ***" when a Licensing Board determines that a proposed action will not have significant environ-mental impacts and that a negative declaration is appro-priate.)
See also, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Station), ALAB-455, 7 NRC 41, 46, fn. 4; ALAB-455, at 48,
~
(Cases cited hold that environmental review is subject to a " rule of reason");
Briefly summarized, the affidavit of Mr. T. Jerrell Carter, Jr. demon-strates on the facts that there is no issue of material fact among the parties concerning the Staff's requirements for a full-core reserve capacity (FCR).
'ir. Carter's affidavit shows that there is no regula-tory requirement for any particular spent fuel storage capacity nor is the regulatory staff aware of any compelling safety basis for requiring maintenance of an FCR capability. Carter Af fidavit, p.1.
Neither the Staff nor the Commission's regulations prohibit utilities from maintain-ing an FCR. Carter Affidavit, p. 1.
See, " Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel; 40 Fed. Reg. 42,801 (1975). Both the Staff and the Applicant agree that operation of the Oconee reacto s without a full-core discharge capability does not endanger the healt and safety of the public or workers or cause substantial adverse en' ironnental 2235 162
. inpacts.
NRC Staff Response of April 17,1979, at p. 2, to Natural Resources Defense Council Request to Applicant and Staff for Admissions Dated April 2,1979; Applicant's Response of April 17,19 79, p. 2 to Natural Resources Defense Council Request For Admissions of April 2, 1979. Nor does '4RDC contend that the one-core discharge capacity stand-ard is a necessary standard for either environmental or health and safety reasons at the Oconee facility.
NRDC response of April 11, 1979 at p. 8 to NRC Staff Interrogatory 5 of March 23, 1979.
However, with respect to Contention 5(a), the proffered Staff evidence clearly demonstrates that loss of an FCR capability is far outweighed by the proposed action to transship and store Oconee spent fuel at 'icGuire.
Stated another way, transshipment and storage at McGuire as proposed is preferred to loss of the FCR at Oconee.
Carter Affidavit, p.1; EIA, T-ble 10-1, p. 58; Spitalny Affidavit re: NRDC Contention 3, pp. 3-6.
The reason is that the benefits and costs of an FCR capability far outweigh the costs of reactor shutdcwn and cutting of the supply of "needed" power.
EIA, Table 10-1, p. 58, Applicant's response of March 27,1979, p.11, to NRDC interrogatories of March 8,1979 Vermont Yankee, ALAB-179, suora; Niagara '4ohawk, ALAB-254, supra.
NPOC Contention 5(a) as expressed is in reality a non seouitur.
There is no usefulness in comparing the value of loss of an FCR with the transshipment option, directly, since loss of an FCR for whatever reason 2235 163
. versus reactor shutdown is the real cost-benefit balance Intervenor has to be raising in Contention 5.
It is a truism in this case, we believe, that none of the alternatives that have been suggested would come up except for the fact that space far spent fuel is needed to keep the Oconee reactors running. Thus, the FCR value is that relative to reac-tor shutdown.
An FCR is not material otherwise.
Stated another way, the issue of Contention 5(a) has to be (1) reactor shutdown versus the proposed transshipment and storage action to continue the FCR capacity compared with (2) reactor shutdown versus loss of FCR.
The Staff's facts show that reactor operation end provision of needed electrical power, said to be a priceless benefit, (and avoidance of approximately one-hundred million dollars per year estimated cost of reactor shutdown) in combination with the transshipment proposal and maintenance of an FCR far outweighs the of loss of FCR without trans-shipnent and possible reactor shutdown.
EI A, Table 10-1, p. 58, Carter Affidavit, Spitalny Affidavit (re:
NROC Contention 3, pp. 3-6).
See Applicant's response of March 27,1979, at p.11, to NRDC discovery questions of 'tarch 8,1979.
Continued operation of the Oconee reactor is a given factor in this case, since Duke Power Company operates Oconee pursuant to operating licenses issued by the Commission to meet the projected power require-ments of Duke's customers.
See, Consumers Power Company (Midland Plant, 2235 164
. Units 1 and 2), ALAB-458, 7 NRC 155,168-169 (1978) (citing, Vermont Yankee fluclear Power Corporation Vermont Yankee Station), ALAB-179, 7 AEC 159,173 (1974); Niagara Mohawk Power Corporation (Nine 'iile Point, Unit 2), ALAB-264, 1 flRC 347, 365-66 (1975). flote, in this connection, that the Oconee reactors were licensed for operation on the basis that they would generate radioactive wastes in a certain amount over the full term of their licenses. The amendment in cuestion does not alter the situation with respect to Oconee, i.e., the proposed transshipment of Oconee spent fuel would not occasion the generation of more wastes than had been previously projected.
See, Prairie Island; Vermont Yankee, suora, ALAB-455, 41-47, fn. 4.
For its part, NRDC admits that:
It has done no research on the FCR issue.
It does not contend that the one core discharge capacity standard is a necessary standard for either environment or health and safety reasons.
It has done no analysis with respect to safety and environ-mental considerations which warrant the imposition of the conditions it suggests.
It has no understanding of the one-core discharge capacity.
It does not know how nany storage spaces are associated with the option of giving up FCR.
It has done no analysis of when Oconee will lose its full-core dis-charge capacity under normal operation as presently designed.
2235 165
, It has done no analysis of when Oconee, under normal operation, will lose the ability to store any additional spent fuel if the full-core discharge capability is not utilized. NROC does not intend to apply further efforts, research, or inquiry to further develop the factual basis for its contention.
It does not know whether the condition it seeks to impose is a condition in any other operating license issued by the Commission.
It does not know whether it would seek the imposition of a condition if Applicant were seeking only to expand its spent fuel storage capacity.
It does not know whether the need to discharge a fullcore is a planned normal operating event.
It does not have a position with respect to abnormal occurrences and whether maintenance of a full-core discharge capability is a management decision, which option it prefers, i.e., maintenance or nonmain-tenance of the full-core discharge capability; what factors should be considered, or how each should be weighed in terns of importance to the cost-benefit analysis it suggests be made.
It has no definition of what is meant by " holding that capa-bility is more valuable" in its contention.
NRDC answers 151-167, April 16,1979 to Applicant's interrogatories of
'iarch 28,1979 ; NRDC answers S. A-G. of April 11, 1979 to Staff Interrogatory 5 of tiarch 23, 1979.
In summary, the foregoing shows that the Staff has no requirement for a full core reserve, although it favors such a practice by utilities.
2235 166
. Carter Affidavit p. 1.
None of the parties contend that operation of Oconee without FCR will endanger the health and safety of the public cr workers or result in significant adverse environnental impacts.
Environ-mental impacts from the proposed action to transship Oconee spent fuel to 'icGuire are negligibly small; therefore, there are no significant environmental impacts. NROC has absolutely no factual basis for its assertion that a cost-benefit balance of "transsbipment" versus holding an "FCR" capability is required.
On the other hand, the proffered Staff evidence shows that the proposed transshipment action will have insignif-icant environmental impacts, and that the proposed transshipment action has significant benefits in providing space to alleviate Duke Power Company's shortage of storage space at the Oconee site for spent fuel generated from operation of the Oconee reactors.
Thus, there are no genuine issues of material fact to be adjudicated, since there are no contradictory facts in issue in this proceeding with respect to Contention 5 and 5(a), particularly with respect to the fact that there are no significant environmental impacts from the proposed action to transship Oconee spent fuel and correspondingly great benefits.
The NRC Staff requests that NRDC's Contention 5 and 5(a) be dismissed pursuant to 10 C.F.R. 32.749 on the summary disposition motion of the Staff.
2235 167
. V.
C0tlCLUSION Accordingly, for the foregoing reasons the NRC Staff requests that the Board grant the NRC Staff's notion for sunmary disposition pursuant to 10 C.F.R. 5 2.749 since there are no issues of law or naterial fact on the above discussed Contentions 1-5 tciat wc'.1d warrant a hearing in this case.
Respectfully submitted,
/
Richard K. Hoefling Counsel for NRC Staf Edward G. Ketchen Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of May,1979 2235 168
.