ML19289F086
| ML19289F086 | |
| 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 7906010338 | |
| Download: ML19289F086 (97) | |
Text
1-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 70-2623 DUKE POWER COMPANY
)
)
(Amendment to Materials License
)
SNM-1773 for Oconee NuclearStation )
Spent Fuel Transportation and
)
Storage at '4cGuire Nuclear Station))
NRC STAFF'S MOTION FOR
SUMMARY
DISPOSITION -
CAROLINA ENVIRONMENTAL STUDY GROUP (CESG) AtlD CAROLIf!A ACTION CONTENTIONS 1, 2 All0 3 Edward G. Ketchen Counsel for NRC Staff Richard K. Hoefling Counsel for flRC Staff ~ -
May 11, 1979 2235 012 70060103331
i TABLE OF CONTENTS Page I. M0 TION....................................................
1 II. INTRODUCTION AND BACKGROUND...............................
1 I I I. G EN E RAL PO I N TS O F L AW.....................................
2 IV. SUPPORTING BASIS FOR SUPPORT OF MOTION FOR SUM'iARY DISPOSITION.............................................
6 A.
Contention 1 (Alternatives)..........................
6 B.
Contention 2........................................
16 C.
Contention 3.........................................
23
'/.
CONCLUSION................................................
27 2235 013
i t
Attachment AFFICAVITS AND QUALIFICATIONS Affidavit #
Name B re t t S. S pi tal ny...............................
1 Brett S.
Spitalny...............................
2 B re t t S. S pi ta l ny...............................
3 Dr. John Nehemias...............................
4 (Re. NRDC#4(a))
D r. M i c h a el Pa rs o n t.............................
5 (Re: NRDC#4(b))
C. Vernon Hodge, William H. Lake, Jr., and R. Daniel Glenn...............................
6 C. Vernon Hodge and R. Dani el Glenn.............
7 2235 014
I.
MOTION The United States Nuclear Regulatory Commission Staff (Staff) moves that the contentions listed below De 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 Intervenors, Carolina Environmental Study Group (CESG) and Caroli:1a Action (CA) have failed to produce a sufficient factual basis for these contentions and that there are no material issues of fact for adjudication at the hearings.
Accordingly, this Atomic Safety and Licensing Board (Soard) should dis-miss CESG and CA Contentions Nos.1, 2 and 3 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 SNM-1773.M The amendment to SNM-1773 would authorize the Applicant, Duke Power Company, to transport spent nuclear fuel from the Oconee Nuclear Station for storage in the spent fuel pool located at the McGuire Nuclear facility in accordance with Duke Power Company's application dated March 9,1978.
1/
2235 015
. Carolina Environmental Study Group and Carolina Action was admitted as an Intervencr in the above-referenced docket by Order of November 2, 1978.1/
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 Soard '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 until May 11,1979 for the Staff and May 21, 1979 for Applicant and the NRDC.
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. 32.714 and 2) the sources:
summary disposition provisions of 10 C.F.R. 52.749. As will be shown below, a motion to dismiss will lie on the basis of e;ther rule.
~1/
On October 24, 1978 Applicant, Staff, and CESG submitted a "Stipu-13 tion of the Carolina Environmental Study Group, the Nuclear Pegulatory Commission Staff, and Duke Porer Company Relating to t1e Admission of Contentions" (October 18, 1978),
A similar stipulation dated October 18, 1978 was also submitted wi th regard to Carolina Action's Contentions. The contentions which are the subject of this Staff motion are drawn from these stipulations, and CESG and CA Contentions Nos.1, 2 and 3 are identical.
2235 016
. 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 each contention set forth in a petition to intervene.1/ 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 must 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 Section2.749oftherulesofpractice.gnsof 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 Light Co., et al (Beaver Valley Power Station, Unit No.1), ALAB-108, 6 AEC 243, 245 ( April 2,1973); Vircinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-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, 505 (July 17, 1973).
~2/
Mississippi Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424-25 (June 19, 1973).
2235 017
t "... must be satisfied, with respect to each con-tention which the petitioner seeks to litigate, that a genuine issue in fact exists.
Any con-tention which on preliminary examination does not survive the application of that standard is to be excluded from consideration at the evidentiary hearing."
[ Emphasis added; Duquesne Light Co.,
et al. (Beaver Valley Power Station, Unit No. I j,
ALAB-109, 6 AEC 243, 245 (April 2,1973)]
As will be shown by the Environmental Impact Appraisal (EIA) (1978) attached Staff affidavits, the Intervenor.'s contentions lack a suffi-cient material factual basis to be allowed to go to hearing in this proceeding. The inadequacy of the Intervenor's position will be spot-lighted by the discovery responses (or lack thereof in the case of Carolina Action) to discovery requests.
B.
Summary Disposition 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.
That Section states:
Summary Disposition on Pleadings 52.749 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, wi th or without supporting affidavits, for a decisio, by the 2235 018
. 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 moving party must demonstrate that there is no i
genuine issue of fact renaining to be decided and that the uncontro-9/
verted facts entitle him to judgment as a matter of law.1 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 affivadits may be supplemented or opposed by despositions, answers to interrogatories, or further affidavits.1/
Summary disposition is appropriate in administrative hearings because it makes possible the prompt disposition of a case on its merits without a fomal hearing by pemitting a party to pierce his opponent's pleadings by presenting material evidence in affidavit fom which establishes that no factual dispute exists.O The Staff submits that such a procedure 1/
Alabama Power Company (Joseph M. Farley Plant, Units 1 and 2),
ALAB-182, 7 AEC 210, 217 (March 7,1974); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 78 (May 17,1974), Gulf States Utilities Company (River Bend Station, Units 1 and 2), LBP-75-10,1 NRCI 246, 247 (March 20,1975).
2/
Adikes v. Kress, 398 U.S.144,158-161 (1970).
3/
10C.F.R.$2.749(b).
4/
Gellhorn and Robinson, Sunmary Judcment in Administrative Adjudication, 84 Harvard L. Rev. 612 (1971),
2235 019
. for saving hearing time by culling out baseless allegations is particu-larly appropriate in the instant case since, as will be shown below by the EIA and Staff affidavits, and by the parties' discovery that there is no factual basis for the Intervenor's contentions.
IV. SUPPORTING BASIS FOR MOTION FOR
SUMMARY
DISPOSITION A.
Carolina Environmental Study Group (CESG) Contention No. I and Carolina Act Contention No.1 Are Properly Disposable on Motion for Summary Disposition.M Contention No. I states as follows:
Shipment of Oconee spent fuel to McGuire for storage is unacceptable as compared to other alternatives:
(a) Modification of the existing Oconee spent fuel pools to provide additional storage capacity.
(b) Construction of a new and separate spent fuel storage facility at the Oconee site.
(c) Construction of a new, separate spent fuel storage facility away from the Oconee site but other than McGuire.
There is no factual issue as to whether transportation and storage of Oconee spent nuclear fuel at McGuire is the preferred alternative since the Staff affidavits and EIA demonstrate that environmental impacts from the proposed action are negligible small and, therefore, insignificant.
~1/
CESG Contentions Nos.1(a),1(b), and 1(c), and for that matter Nos. 2 and 3, are identical to Carolina Action Contention 1(a),
1(b), and 1(c), and Nos. 2 and 3, and will be treated together.
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. Accordingly, it is not necessary to choose among alternatives and the proposed action on the basis of the present evidence developed during di scove ry.
The Staff EIA and Staff affidavits which are ur. contradicted show that the enviror, mental impacts of the proposed action will be negligibly small.
Clearly, if the 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 similar or greater hann need not be discussed." Sierra Club _v. 11orton, 510 F.2d 813, 825 (5th Cir.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. s51.7; Duquesne Licht Company et al. (Beaver Valley Power Station, Unit No.1),
LBP-78-16, 7 NRC 811, 817 (1978); g. Consuners Power Comoany (fiidland Plant, Units 1 and 2), ALAB-458, 7 NRC 155,156 (1978) (NEPA requires an agency to consider whether there are environmentally preferable alterna-tives to a given proposal; if none exist, there need be no cost-benefit balancing of al terr.atives. )
Briefly summarized, the Staff evidence proffered as part of its summary disposition motion demonstrates that there are no significant environ-mental impacts from the propcsed transshipment action including impacts 2235 021
. from radiation dose to the public or workers.
EIA, Chs. 5 & 6, EIA, pp.
49-59; Parsont Affidavit, Nehemias Affidavit.
The Staff evidence further demonstrates that modification of the existing Oconee spent fuel pools to provide additional storage capacity ("re-racking")
is not a preferred environmental alternative to the proposed transship-ment action, even if a cost-benefit balancing of the re-racking alterna-tive is done.
EIA, pp. 57-59; Table 10-1, p. 58.
The transshipment action is estimated to cost $2000 per assembly with a radiation exposure of approximately 120 man-rems. Modification of the Oconee spent fuel pools are estimated to cost from $6000 per assembly (EI A, Table 10-1, p.
- 58) to $8300 per assembly (Applicant's response of March 27, 1979 at p.
13 to NRDC interrogatories of March 8,1979).
Radiation exposure ranges from 60-120 man-rems for the proposed trans-shipment action and from 125-150 man-rems for the re-racking alternative.
EIA, Table 10-1, p. 58; Parsont Affidavit; Nehemias Affidavit.
For the proposed transshipment action, there are 0.003 genetic health effects to the first generation and 0.2 genetic health effects in future generations at equilibrium and minimal, or insignificant, sonatic health effects.
Parsont Affidavit Table II and Table IV.
In comparison, for the re-racking alternative there would be 0.002-0.004 genetic health effects to the first generation and 0.1 - 0.3 health effects in future generations at equilibrium, and similarly, negligible or insignificant somatic health ef fects.
Parsont Affidavit, Table II and Table IV.
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_9_
In any event, Duke Power Company has already applied for an amendment to allow Duke Power Company to re-rack the Oconee Units 1 and 2 spent fuel pools, although it is a more expensive alternative to transshipment.
Applicant's response of March 27,1979 at p.13 to NRDC interrogatories of March 8,1979; Duke Power Company letter to NRC, dated February 2, 1979, and Duke's " Cost Estimate for the Oconee 1-2 SFP Rerack." Presum-ably, neither the transshipment action nor the re-racking option are in fact alternatives to one another but both are required by Duke for it to obtain the necessary spent fuel storage capacity for the Oconee reactors.
There is no issue of material fact on Contention 1(a) since the facts alleged by CESG in its response of April 11, 1979 to the Staff's interroga-tories of March 23, 1979 do not dispute the described factual basis for the Staff's position on Contention 1(a).
Contention 1(b) raises the issue of whether construction and operation of a new, separate spent storage facility at the Oconee site is a pre-ferrable alternative to the proposed action to transship Oconee spent nuclear fuel for storage in the McGuire, Unit 1 spent fuel pool.
With respect to Contention 1(b), there is no requirement to discuss alternatives where the proposed transshipment action will not result in significant environmental impacts.
10 C.F.R. s51.7; Midland, ALAB-458, suora; Trojan, supra at 815-817; Sierra Club v. Morton, 510 F.2d 813, 825 (5th Cir.1975). However, Staff evidence demonstrates that the 2235 023
. transshipment action is preferred over construction of a new and separate spent fuel storage facility at the Oconee site.
The trans-shipment of 300-270 day-old spent fuel assemblies at $2000/ assembly would have no significant environmental impacts including impacts from radiation exposure.
EIA, Chs. 5 & 6; EIA Table 10-1, p. 58.
Pa rsont Affidavit, Tables II and IV.
Construction of a new, separate spent fuel facility at the Oconee site would cost from $10,000/ assembly to $34,000 per assembly, plus shipping costs.
EIA, Table 10-1, p. 58; Applicant's response at p. 13 of March 28, 1979.
Padiation exposure, although minimal, would still accrue due to trans-snipment from the existing Oconee spent fuel pools to a separate spent fuel pool facility at the Oconee site. A minimal savings in radiation dose would result frcm less public and worker exposure.
Thus, the dose saving between an onsite spent fuel storage installation at Oconee and transshipment to McGuire would only be 10 percent of the total received, or about 15 man-rems, largely attributable to the reduced dose to the truck drivers. Assuming any degree of transshipment offsite to the offsite independent spent fuel storage installation other than at McGuire as suggested by CESG's Contention 1(c), the reductions in the savings between the transshipment to McGuire and the Oconee onsi'.e ISFSI would be even less.
Nehemias Affidavit; Spitalny Affidavit (re: CbG & CA Contention 1, pp. 4-7).
2235 024
. The dif ference in health effects, where the projection for the proposed transshipment option is 0.003 health effects for the first generation and 0.2 health effects at equilibrium in future generations would be indistinguishable. The somatic health effects from a similar comparison are also indistinguishable.
Parsont Affidavit, Tables II and IV, Nehemias Affidavit.
Moreover, the time constraints for construction of separate spent fuel pool facilities at the Oconee site or elsewhere other than at the McGuire site would be unacceptable since Duke Power Co.
requires additional spent fuel storage capacity by 1979, assuming an FCR is maintained.
Construction of a separate spent fuel pool facility at the Oconee site is not an option to the proposed transshipment action to meet the spent fuel capacity shortage at the Oconee facility by late 1979, assuming a fullcore discharge capability is maintained at the Oconee reactor site.
EIA, pp. 1-50, 49-59, Spitalny and Roberts Affidavit.
Construction of an independent spent fuel storage installation was considered by the Applicant as an alternative to the proposed action.
This facility could be built at Oconee Nuclear Station or at another site.
Spent fuel could not be received at the ISFSI at Oconee until 1984 because it takes approximately five years for approval and comple-tion of an ISFSI. This estimate assumes one year for preliminary design; one year for preparation of the license application, environmental 2235 02R
. report, and licensing review in parallel, with one year for detailed designs; and two and one-half years for plant construction, equipment testing, and startup.
The earliest an ISFSI could be built by the Applicant is 1984; well beyond the date when storage shortage at Oconee will force its shutdown.
In addition, the environmental impacts and costs of such a project would be obviously greater due to the environmental impacts from construction (although no detailed evaluation has been or need be done) than trans-hipping the spent fuel to McGuire fluclear Station or re-racking the basin serving Oconee Units 1 and 2.
Therefore, while the option to construct new, separate spent fuel pools would meet the future need for spent fuel storage it would not aid in solving the Duke Power Company's immediate spent fuel storage problem at the Oconee facility.
EIA, p.
52.
Presumably, the adverse environmental impacts from construction and operation of a new, separate spent fuel pool at the Oconee site would be significant enough to trigger the flEPA cost-benefit and alternative process.
However, it was not necessary to evaluate such impacts with respect to the separate spent fuel pool alternative since environmental impacts from the proposed transshipment action will be negligibly small and, therefore, insignificant.
In such circumstances, there is no requirement to consider an alternative which is more costly from both an economic and environmental standpoint than the proposed transshipment 2235 026
. action which has no significant environmental impact.
Sierra Club v.
florton, suora, Midland, ALAB-458, supra, at 156 (Headnote) Trojan, supra; Beaver Valley, supra.
Contention 1(c) raises the issue of whether construction and operation of a new, separate spent fuel storage facility at an unspecified site other than at the Oconee site or at the ficGuire site is a preferrable alternative to the proposed action to transship Oconee spent nuclear fuel for storage in the ficGuire Unit 1 spent fuel pool.
With respect to Contention 1(c), there is no requirement to discuss an alternative where the proposed transshipment action will not result in significant environmental impacts.
10C.F.R.551.7;MidlandALA3-458, supra, at 156, 168-169; Trojan, supra, at 815-817; Sierra Club v. Morton, supra. The transshipment cction has no significant environmental impacts.
EIA, Chs. 5 & 6, EIA, pp. 49-59. However, as we set forth with respect to Contention 1(b), Staff evidence demonstrates that the proposed trans-shipment action is preferred over construction of a new and separate spent fuel storage facility at a site other than at the Oconee site or at the McGuire site if such an evaluation is done.
The of fsi te construc-tion of a separate spent fuel storage facility suggested by this conten-tion is even less attractive than that suggested in Contention 1(b),
since it has all the environmental and economic disadvantages as will as the time disadvantage we discussed with respect to 1(b) plus the added disadvantage of no savings in driver radiation dose to workers or the 2235 027
. public. We hazard that it would be even a more expensive option, as well, since an offsite facility would, presumably, require land acqui si tion.
For these reasons and the reasons set forth with respect to Contention 1(b), there is no requirement to consider an alternative which is more costly in both economic and environmental tems than the proposed action which has no significant environmental inpact.
Sierra Club v. Morton, supra; Midland, ALAB-458, supra; Trojan, supra; Beaver Valley, supra.
In summary, the Staff evidence shows that the impacts of the proposed transshipment action is negligibly small and, therefore, the action is insignificant.
Thus, alternatives to the proposed action need not be conside red.
Sierra Club v. Morton, supra.
Moreover, there is no dis-agreement between CESG, Duke, and the Staff that re-racking is an option.
However, it is more costly in time and dollars.
Duke now estimates the time for re-racking to be 3-6 months.
For its part, in response to discovery questions, CESG agrees that re-racking could be accomplished within a year.
CESG response of April 11,1979 to i1RC Staff's interrogatories of March 23, 1979.
Applicant response of March 27, 1979 to flRDC discovery request of March 8,1979.
CESG claims that a new separate, spent fuel storage facility could be constructed within two years either at the Oconee site or at another site other than at McGuire.
CESG response of April 11, 2235 028
. 1979 to NRC Staff's discovery questions of March 23, 1979.
- However, CE5G in response to discovery questions asked by the Staff or gave no other supporting facts that would tend to show that there are signifi-cant environmental impacts from the proposed action to transship Oconee fuel for storage at McGuire, that re-racking is preferred to trarsship-ment, that construction of a separate spent fuel facility at the Oconee site is a preferred alternative, if it is assumed that altt mativer do have to be considered; or that construction of a spent fuel facility at a site other than at the Oconee or McGuire sites is a preferred alterna-tive, if it is assumM that alternatives to the proposed action have to be considered.
CESG responses of April 11, 1979 to NRC Staff interroga-tories of fiarch 6,1979, and March 23, 1979, respectively.
Thus, there is no nateriai issue of fact in controversy that construc-tion and operation of a new, separate spent fuel pool at t.he Oconee site or at another site other than at McGuire are viable alternatives to the proposed transshipment action, if alterni.tives are required to be con-side red.
CESG failed to assert any factual basis to support its Conten-tions 1(b) and 1(c) in this regard. CESG response of April 11, 1979 to NRC Staff discovery of March 23, 1979, and March 6, 1979, respectively.
There is no naterial issue of fact between the parties with respect to time constraints with respect to the alternatises suggested by Conten-tions 1(b) and 1(c).
From two years (CESG response of April 11, 1979 to NRC Staff discovery questions of March 23,1979) to fise years (EI A, 2235 029
. p. 52) would be required to construct a spent fuel facility at Oconee or at a site other than at McGuire. However, Duke Power Ccmpany will lose its spent storage capacity in 1979 assuming a full-core reserve is maintained at the Oconee facility.
Since there are no material issues of fact with respect to the options suggested in Contentions 1(b) and 1(c) as alternatives, if alternatives have to be considered in this proceeding at all, Midland, ALAB-458, the Staff requests that the Board grant the Staff's motion for summary disposition with respect to CESG Contentions 1(a), 1(b) and 1(c).
For its part Carolina Action has not responded at all to the discovery requests of the parties or an Order of the Licensing Board directing it to do so.
In these circumstances, there is no issue of material fact among the carties; Duke Power Company, and Carolina Action and the NRC Staff.
Accordingly, as to Carolina Action, in the absence of any proof by Carolina Action showing any material facts in dispute, the Staff requests that the Board p ant the Staff's motion for summary disposition pu rsuant t.o 10 C.F.R. !2.749.
8.
This portion of the Staff's Motion for Summary Disposition deals with the following contention raised by both CESG and Carolina Action as their Contention No. 2.1/
1/
This contention was stipulated to by the parties in the " Stipulation of Carolina Action, [and CESG], the Nuclear Regulatory Commission Staff and Duke Power Company Relating the Admission of Contentions" dated October 18, 1978. These stipulations were accepted by the Board in its Order following prehearing conference dated November 2, 1978.
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. CESG [and Carolina Action] contend [s] that transportation of spent nuclear fuel from the Oconee Nuclear Station for storage at the McGuire Nuclear Station will create an unacceptable hazard by significantly increasing the radia-tion doses to persons in the region near the proposed transportation routes between the two facilities.
Speci fically:
(a) There will be an unacceptable incremental burden of radiation dose to persons ilving in the vicinity of the transportation routes.
(b) There will be an unacceptable incremental burden of radiation dose to persons traveling over the trans-portation routes concurrently with spent fuel shipment.
(c) There is likely to be an unacceptable incremental burden of radiation dose to persons in the vicinity due to an accident or delay in transit.*
- CESG [and Carolina Action] intend [s] to raise the likelihcod of a melting or breach cf cask accident.
Licensee and Staff do not stipulate to this aspect of the contention.
Intervenors contend that the trensportation of spent nuclear fuel from Oconee to ficGuire will create an unacceptable hazard by significantly increasin] the radiation doses to people in the vicinity of the trans-portation routes. Three particular situations are presented:
First, Intervenors argue that normal transport will cause an unaccept-able incremental burden of radiation dose to persons living along the route.
This claim has no factual support.
On the contrary, the dose received by the approximately 42,000 people living along the route is smal l.
The cunulative dose for 300 shipments is the equivalent of 0.003% of the dose received annually from naturally occurring sources.
Even the maximum individual 30 m from the roadway will receive a cunula-2235 031
. tive dose of only 0.02 rrrem which is the equivalent of 0.02.' of the dose received annually from naturally occurring sources.
(Statement of Material Facts, ilos.1 and 2)N.
The doses to the population along the route of the proposed shipments and to the maximum individual are not significant and do not represent an unacceptable incremental burden.
Any health effects are too small to estimate.
(Statement of Material Facts, fio. 3).
This portion of Intervenors' Contention, i.e., 2(a) should be rejected.
Second, Intervenors argue that normal transport will cause an unaccept-able incremental burden of radiation dose to persons travelling concur-rently along the route with the spent fuel shipment.
This claim also has no factual support. On the contrary, the Staff has analyzed the situations postulated and the related doses are insignificant.
(State-ment of Material Facts, No. 4.)
The Staff has postulated a traffic jam in an area with a population of 10,000 persons per square mile uniformly distributed and lasting for 3 hou rs.
The population dose would be less than 0.2 man-rems and the maximum exposed individual 3 m. fror the cask would receive 15 mrem.
(Statement of Material Facts, No. 5).
~1/
References are to the "Statcment of Material Facts as to Which There is No Genuine Issue," which is attached.
2235 032
4 The Staff has also postulated that a car is travelling directly behind the truck carrying the cask for four hours at a distance of 30 m.
The dose is calculated to be 0.16 mrem to each occupant.
If the same indi-vidual were to follow each of the 300 shipments, the total dose would be only 48 mrems.
(StaLement of Material Facts, No. 6).
The Staff has also analyzed the cumulative population dose for travel in the direction opposite to that of the shipments (0.04 person-rem) and for travel in the same direction and at the same speed as the shipnents (0.08 person-ren).
These doses are small fractions of the doses received from naturally occurring background.
(Statement of Material Facts, iios. 7 and 8).
Thus, the doses to persons travelling over the transportation routes concurrently with spent fuel shipments are not significant and do not represent an unacceptable incremental burden.
Any heaith effects are too small to estimate.
(Statement of Material Facts, No. 9). This portion of Intervenor's Contention, i.e., 2(b), should be rejected.
Finally, Intervenors argue that transport accidents or delays will cause an un3cceptable incremental burden of radiation Jose to persons in the vicinity of the proposed shipments. This portion of the contention also has no meri t.
As was noted above. the Staff has analyzed the radiation doses associated with a delay in transit and they are insignificant.
(See also Statenent of Material Facts, No. 24.)
2235 033
. With regard to the second element of this contention, namely transporta-tion accidents, the contention is rooted in the claim that such accidents could have significant radiological consequences.
This claim is unsupportable.
Compliance with the Commission's regulations provides high assurance that the spent fuel cask can survive a wide range of transportation accidents without the release of significant radioactivity.
(Statement of Material Facts, Nos.10 and 11.) The presumption that a spent fuel accident, no matter how unlikely, will nevertheless be severe is faulty.
This erroneous presumption is further exposed by actual testing per-formed on spent fuel casks and experience gained from actual transporta-tion accidents. Both extensive testing and actual accident experience demonstrate that spent fuel cask accidents will not result in signifi-cant radioactive releases.
(Statement of Material Facts, Nos.12 and 13.)
The Commission accident test standards are equivalent to conditions for severe accidents. The risk associated with spent fuel transport acci-dents beyond the severe category is low because the probability of extrere accidents occurring is remote.
(Statenent of Material Facts, Nos. 14 and 15.)
2235 034 SM
. In addition, the Staff has analyzed a number of minor and moderate postulated accidents and has assessed the impacts.
The Staff's analysis of these scenarios demons trate that the consequences of such postulated accidents will not be significant.
While certain amounts of radioactivity can be released under the Commission's regulations in accidents up to and including the severe category, the consequences of such releases are minimal.
Doses range from a total body dose to the maximum individual of 1x10- mrem for an undetected leakage cf coolant accident to a total body dose to the maximum individual of 1.1x10-2 mrem for the cask over-pressurization accident.
(Statement of Material Facts, Nos.16 and 17.)
In addition, the Staff analyzed accidents beyond the severe c.ategory even though such accidents are extremely remote and the associated risk is low.
(Statement of Material Facts, No.18.)
The Staff analyzed the extra severe collision or overturn accident.
By virtue of cask design, massive rupture and subsequent release is pre-cluded.
tionetheless, the Staff analyzed consequences presuming cask failure and some creep rupture of the fuel cladding.
Coses due to this postulated accident are insignificant. The maximum individual whole body dose conmitment is estinated as 0.23 ren.
The population whole body dose commitment for Population Center B is estimated at 370 person-rem.
This population dose would mean 0.04 latent cancer fatalities or essentially no health effect.
(Statement of Material Facts, Nos. 20 and 21).
2235 035
. Finally, the doses from any decrease in shielding capability of the cask would not be significant. An accident may bring about some reduction in shielding capability but, by regulation, such reduction shall not be sufficient to increase the external radiation dose rate to core than one rem per hour at 3 feet from the external surface of the package.
In this case, the dose rate would be only 10 mrem /hr at a distance of 30m.
It is not likely that the general public would require significant doses under these circumstances.
Thus, there simply will not be, even in the worst case, the type of accident which Intervenors envision. Should a spent fuel accident occur of even severe portions, cask breach is unlikely.
And even in the event of cask breach, the radiological releases are minor and the consequences insignificant.
In summary, this final element of Intervenors' contention is without merit.
It presumes that spent fuel cask accidents would be of signi-ficant proportions.
The record does not support this presumption.
Rather, it overwhelmingly rejects it.
Spent fuel accidents, should they occur, are simply not significant.
For these reasons, Carolina Action and CESG Contention 2(c)is without me ri t.
2 2 3 5 OL3 6
. Contention 2 claims that unacceptable hazards from radiation are posed by normal transport, accidents or delays in transport. The EIA and Staff affidavits reject these claims and none are supportable.
On the contrary, the facts clearly demonstrate that the claims of Contention 2 are baseless and the contention should be summarily dismissed.M C.
CESG Contention flo. 3 and Carolina Action Contention fio. 3 is properly disposable on a motion for summary disposition.
CESG Contention fio. 3 and Carolina Action Contention fio. 3 which are identical state as follows:
Factors set forth in items 1 [CESG Contention fio.1 and Carolina Action Contention fio.1] an<i, 2 [CESG Contention tio. 2 and Carolina Action Contention fio. 2] above require the preparation of an Environmental Impact Statenent because the proposed action is a major federal action of the Commission significantly affecting the quality of the human envi ronnent.
This contention involves whether CESG Contentions 1 and 2 and Carolina Action Contentions 2 and 2 result in impact significantly affecting the quality of the human environment such that an Environmental Impact Statement is necessary.
1/
It should be noted that Carolina Action has repeatedly rei Jed to respond to Staff discovery and the Staff suggests that this con-duct be considered by the Board in its ruling on the Carolina Action contention.
2235 037
. Briefly stated, the EIA and the Staff affidavits submitted by Messrs.
Spitalny and Roberts, Spitalny, Parsont, Nehemias in this case demon-strate that (1) the environmental impacts from the proposed action are negligibly small, and, therefore, insignificant, and there is no pre-ferred alternative to the transsnipment of Ocenee spent nuclear fuel to McGuire for storage, if alternatives are required to be evaluated. The other alternatives CESG and CA suggest be compared are:
(1) modi fica-tion of the existing Oconee spent fuel pools to provide additional storage capacity (re-racking); (2) construction of a new and separate spent fuel storage facility at the Oconee site; (3) or construction of a new and separate spent fuel storage facility away from the Oconee site, but other than at McGuire.
With respect to environmental impacts, the evidence proferred shows that the transshipment option is the preferred alternative from an environ-mental standpoint since there are no significant environmental impacts or negligibly small environmental impacts from the proposed action.
Moreover, the affidavits and the environmantal impact assessment show that the other alternatives, although less environmentally acceptable to the proposed action, are economically more expensive in any event.
EIA; Staff Affidavits; Spitalny Affidavit (re: CESG and CA Contentions 1 and 3).
2235 038
. There is no need to consider alternatives when it is shown that the proposed alternative which will have no, or negligibly small, impacts on the envi ronment.
Portland General Electric Company, et al. (Trojan fluclear Plant), LBP-78-32, 8 NRC 413, 447 (1978); Duauesne Light Company, et al. (Beaver Valley Power Plant (Midland Plant, Units I and 2),
ALAB-458, 7 NRC 155, 169 (1978); Sierra Club v. Morton, supra.
Similarly, with respect to item 2, i.e., CESG Contention No. 2 and Carolina Action Contention No. 2 which are also identical, the proposed action will not significantly affect the quality of the human environ-ment since transportation of spent nuclear fuel from Oconee for storage at the McGuire fluclear Station will not create any hazard significantly increasing the radiation doses to persons in the region near the proposed transportation routes between the two facilities.
EIA, Chs. 5 and 6.
The radiation dose to persons living in the vicinity of the transporta-tion routes will be negligibly small, and, therefore, i,nsiginificant.
There will be little if any radiation dose to persons travelling over the transportation routes concurrently with spent fuel shipments.
Delay in transit will not result in more than negligibly small, and, therefore, insignificant radiation dose to persons in the vicinity of the transporta-tion routes due to traffic accidents or other delays in transit.
Spitalny Affidavit (re:
CESG & CA Contention No. 3), p. 4.
2235 039
. Finally, there is no likelihood of a melting or breach of cask accident resulting in any radiation dose other than nomal from transportation of the spent fuel from the Oconee Nuclear Station for storage at the McGuire Nuclear Station.
Such radiation dose will be negligibly small, and therefore, insignificant. Thus, there is no need to consider alterna-tives to the proposed action since the proposed action will not have a significant effect on the quality of the human ervironment.
Beaver Valley, supra. Sierra Club v. florton, suora; Midland, ALAB-458, supra.
Spi talny Affidavit (re: CESG and CA Contention 3); Hodge, Lake, and Glenn Affidavit; Hodge and Glenn Affidavit.
In addition to directly addressing the contentions and the specifics of the contentions raised in Contentions 1 and 2 of CESG and Carolina Action, the Staff has considered all potential impacts on the environment from the proposed action. The Staff evaluation in the Environmental Impact Assessment in support of the negative declaration demonstrates that the proposed action will result in negligibly small or insignificant impacts with respect to air, aquatic, and terrrestrial environs.
Impacts from occupational exposure and the dose to the general public are insigni-ficant.
EIA, Chs. 5-6; EIA, pp. 49-58, 59, 65; Spitalny Affidavits re:
CESG & CA Contentions 2, and 3; Hodge Affidavit; Glenn Affidavit, Parsont Affidavi t (re: NRDC Contention 4(b)).
Staff notes that Carolina Action's and CESG's responses to NRC discovery requests make only a naked assertion in support of its Contention No. 3 2235 040
. that the consideration of factors 1 and 2, i.e.,
its Contention 1 and 2, will have significant impacts on the environment. There are no material factors listed or in its response of April 11, 1979 to Staff's discovery requests of liarch 6,1979 and March 23, 1979 in support of their contentions.
For its part, Carolina Action failed to respond at all to NRC Staff's interrogatories asking for a factual basis for the contention in spite of an Atomic Safety and Licensing Board Order directing Carolina Action to do so.
Parties may not rely sole?y on a baseless allegation, but rather must state material facts in support of contentions 10 C.F.R. 52.749(b).
V.
CONCLUSI0fi For the foregoing reasons, the evidence profered by the Staff in support of its motion for summary disposition shows that there is no material issue of fact in this proceeding with respect to CESG's or Carolina Action's Contention Nos.1, 2, or 3.
Accordingly, the Staff requests that the Board grant its motion for sumnary disposition pursuant to 10 C.F.R. $2.749.
Respectfully submitted,
/
Richard K. Hoefling Counsel for NRC Staff W
Edward G. Ketchef)
Counsel for NRC Staff Dated at Bethesda, Maryland, this 11 day of May, 1979 2235 041