ML19340D099
| ML19340D099 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 12/22/1980 |
| From: | Ancarrow M, Mcbride M, Trosten L ELECTRIC UTILITY COMPANIES NUCLEAR TRANSPORTATION, LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | |
| References | |
| NUDOCS 8012290071 | |
| Download: ML19340D099 (26) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
DUKE POWER COMPANY
)
Docket No. 70-2623
)
(Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
}
At McGuire Nuclear Station)
)
BRIEF AMICUS CURIAE ON BEHALF OF MEMBERS OF THE ELECTRIC UTILITY COMPANIES NUCLEAR TRANSPORTATION GROUP Leonard M. Trosten M.
Reamy Ancarrow Michael F. McBride LeBOEUF, LAMB, LEIBY & MacRAE 1333 New Hampshire Avenue, N.W.
Suite 1100 Washington, D.C.
20036 Attorneys for Electric Utility Companies Nuclear Transportation-Group Datc:
December 22, 1980 SGIW$ 4 'l C
TABLE OF CONTENTS Page Table of Authorities.................................
ii Introduction.........................................
1 Argument I.
THE LICENSING BOARD MADE FINDINGS INCONSISTENT WITH ESTABLISHED NRC AND DOT REGULATORY POLICY THAT TRANSPORTATION OF SPENT FUEL AS REGULATED IS LAFE AND ENVIRON-MENTALLY SOUND............................
7 A.
Transport of Spent Fuel Has Been Determined To Be Safe And Environmentally Acceptable........
7 1.
The Risk of a Serious Sabotage Incident Is Extremely Remote...................
9 2.
Accidents Involving Serious Consequences From Spent Fuel Ar e No t C r ed ible...................
12 B.
The Licensing Board Decision May Not Second-Guess DOT And NRC Policy That Transport Of Radioactive Materials As Regu l a te d Is S a fe......................
16 II.
THE BOARD IMPROPERLY INCLUDED FINDINGS ON PSYCHOLOGICAL STRESS...................
23 Conclusion...........................................
25
TABLF OF AUTHORITIES Page Cases:
Accardi v. Shaughnessy, 347 U.S.
260 (1954)..........
1 4 Air Line Pilots Association, International
- v. CAB, 516 F.2d 1269 (2d Cir.
1975)...............
18,19 Delta Air Lines, Inc. v. CAB, 543 F.2d 247 (D.C. Cir.
1976)...................................
19,20 First National Bank of Chicago v.
Richardson, 484 F.2d 1369 (7th Cir.
1973)......................
25 Hanley v. Kleindienst, 471 F.2d 823 (1972) cert. denied, 412 U.S. 908 (1973)..................
25 Kappelman v. Delta Air Lines, Inc., 539 F.2d 165 (D.C. Cir. 1976), cert. denied, 429 U.S.
1061 (1977)...............................
20 Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir.
1973)..............................
25 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-80-39 (Dec.
5, 1980).....................................
24 Nucleus of Chicago Homeowners v. Lynn, 524 F.2d 225 (1975), cert. denied, 424 U.S.
l 976 (1976).........................................
25 Ruangsvang v.
Immigration & Naturalization Service, 591 F.2d 39 (9th Cir.
1978)...............
17,18 Service v. Dulles, 354 U.S. 363 (1957)...............
16 Teleprompter Cable Communications v.
- FCC, 565 F.2d 736 (D.C. Cir.
1977)......................
17 l
United States v. Nixon, 418 U.S.
683 (1974)..........
16 United States Lines, Inc. v.
FMC, 584 F.2d 519 (D.C. Cir.
1978)...............................
16 l
l Virginia Electric and Power Company, I
Docket No. ER78-522 (June 2, 1980).................
6 l
-ii-l i
Page Statutes:
Atomic Energy Act, as amended, 42 U.S.C.
SS2011-2296 (1976 & Supp. II 1978)...............
5 National Environmental Policy Act, 42 U.S.C.
SS4321-4347 (1976 & Supp. II 1978).......
6 Regulations:
10 C.F.R. 52.758 (1980)..............................
16 10 C.F.R.
SS1.20 (1980)..............................
15 10 C.F.R. 551.21 (1980)..............................
20 10 C.2.R. Pt. 71 (1980)..............................
10,11 10 C.F.R. 571.5 (1980)...............................
11 10 C.'.R.
S71.36 (1980)..............................
10 10 C. ' '. R. Pt. 73 (1980)..............................
11 10 C.F.R. S73.37 (1980)..............................
11 49 C.F.R. Pts. 171-89 (1979).........................
11 Miscellaneous:
42 Fed. Reg. 65,334 (1977)...........................
3 44 Fed. Reg. 38,690 (1979)...........................
10 45 Fed. Reg. 7140 (1980)..........................
13,14,15 45 Fed. Reg. 15,184 (1980)...........................
21 45 Fed. Reg. 37,399 (1980)...........................
11,12 Interagency Review Group on Nuclear Waste Management, Report to the President (1979).........
3,4 R.M. Jefferson, "Ca'k Demolishes Train Super-structure--Sustai
- inor Damages", Nuclear Engineering J., Vc..
42, No. 260, (1977)..........
9 I
R.M. Jefferson & H.R. Yoshimura, Crash Testing of Nuclear Fuel Shipping Containers, SAND 77-1462 (Sandia Laboratories 1978).................
9 Sandia Naticnal Laboratories, Transportation of Radionuclides in Urban Environs:
Draft Environnental Assessment, NUREO/CR 0743 (1980)........................
10 U.S. NRC, Final Environmental Statement on the Transportation of Radioactive Material by Air and Other Modes, NUREG-0170 (1977)..........
15
-lii-
s 4
Page U.S. NRC, Proceedings From the NRC-IAEA Spent Fuel Storage Meeting, NUREG-0448 (1978).............................................
3 R. Yoshimure and M. Huerta, A Crash Test of a Nuclear Spent Fuel Cask and Truck Transport System, SAND 1977-0419 (Sandia Laboratories 1978).................................
9 H. Yoshimura, " Full Scale Test of Spen't-Fuel
' Shipping Systems", Transactions of the American Nuclear Society (Nov. 28-Dec. 2 1977).....
9 F
I e
i l
l
-iv-
UNITED STATES OF AMERICA i'UCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPFAL BOARD In the Matter of
)
)
DUKE POWER CCMPANY
)
Docket No. 70-2623
)
(Amendment to Materials
?
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
)
At McGuire Nuclear Station)
)
BRIEF AMICUS CURIAE ON BEHALF OF MEMBERS OF THE ELECTRIC UTILITY COMPANIES NUCLEAR TRANSPORTATION GROUP INTRODUCTION This Brief is filed on behalf of twenty-four members of the Electric Utility Companies Nuclear Trans-portation Group ("The Utilities"),1/ to address the decision and supporting conclusions of the Atomic Safety i
and Licensing Board
(" Licensing Board"), in its October 31, 1980 denial of Duke Power Company's
(" Applicant" or " Duke l
1/
Arizona Public Service Company, Baltimore Gas & Electric Company, Commonwealth Edison Company, Corsolidated Edison Company of New York, Inc., The Detroit Edison Company, Duke Power Company, Georgia Power Company, Indiana & Michigan Electric Company, Kansas City Power and Light Company, Kansas Gas and Electric Company, Long Island Liyhting Company, Middle South Services, Inc.,-Niagara Mohawk Power Corporation, Northeast Utilities, Northern States Power Company, Pacific Gas & Electric Company, Philadelphia Electric Company, Power Authority of the State of New York, Public Service Electric & Gas Company, Rochester Gas and Electric Corporation, Southern California Edison Company, Union Electric Company, Virginia Electric & Power Company, Yankee Atomic Electric Company.
5 Power") request for authority to transport 300 Oconee spent fuel assemblies to its McGuire f acility for storage.
The Utilities are submitting this Brief because they similarly rely upon nuclear power generation for some portion of their power supply.
These companies in many cases possess currently-operating nuclear power reactors 4
l that are in the process of producing and discharging spent nuclear fuel.
In addition, utilities with power facilities i
planned or under construction appreciate the need to resolve issues of spent fuel transportation and storage early in the planning stages of their operations.
hus, each of these companies f aces, either in the near future or further along, a potentir.1 shortage of on-site storage space for spent fuel.
The Utilities believe that the Licensing Board's decision threatens their ability to maintain all possible nuclear storage / transportation options at this time.
The spent fuel storage problem facing utilities is not a product of confusion or poor planning on their behalf, but is born of centinuing delay and uncertainty within the federal government in developing and implementing its policy 3
on management of the back end of the nuclear fuel cycle.
At the time a number of electric power companies first encountered or would soon encounter the need to discharge spent fuel from their power reactors, the industry and -
federal government were jointly embarking upon near term developnent of spent fuel reprocessing and recycling technology.S/
Five reprocessing facility licensing dockets and a generic environmental inpact study of commercial reprocessing were ongoing by early 1977.
By.
l April of that year, however, the Federal Administration altered its policy on reprocessing and in December 1977 the NRC terminated those dockets.S!
Hence companies that had retained spent fuel on-site in anticipation of shipping that fuel to storage and reprocessing facilities had to consider other options.
In connection with the Administration'a shift away from reprocessing, the federal government embarked on a program to consider other means of managing spent nuclear fuel.
In March of 1979, the Report to the President by the Interagency Review Group on Nuclear Waste Management l
( "IRG Report" ) was published.
Citing the shift away from reprocessing, the IRG Report recommended. alternative f
spent fuel disposal approaches, and called for Away From Reactor (AFR) storage capacity to be made available in.a 1983 time-frame:
2/
- See, e.g.,
Statement of T. J.
Carter, NFC Division of Operating Reactors,' reprinted in Proceedings from the NRC-IAEA Spent Fuel Storage Meeting, NUREG-0448 (1975).
3/
42 Fed. Reg. 65,334 (1977). s v
s
.--w-e
[A]t least one AFR can play an important role in buying time and permitting greater programmatic flexibility in the development and opening of IILW disposal repositories.
l IRG Report at 101.
i Unfortunately, further planning and construction j
of AFR f acilities have been delayed by - the federal government, and probably could not now be ready by 1983.
- Indeed, little progress has been made by government decisionmakers in solving the near-term question of how and where spent fuel is to be managed.
Thus the private sector has been forced to maintain the flexibility for programatic planning that the IRG Report required on a nationwide basis.
U t i.'. i-ties must cope with a number of future-possibilities by ensuring that the maximum number of options remain open and by avoiding unnecessary commitment to any particular approach.
In this connection, the Lice. sing _ Board was wide of the mark in finding that the " transshipment of spent fuel elements from Oconee to McGuire do s not have independent.
utility.
(Initial Decision at 28-36), and that the Duke shipment would foreclose alternatives for spent fuel manacement.
Id. at 36-40.
To the contrary, the transship-ment from Oconee represents an attempt to maintain all possible fuel management alternatives, a necessity in the above-cited atmosphere of governmental uncertainty and delays.
When a utility such as Duke finds itself facing a
, i
1 shutdown due to a lack of on-site storage space, a transship-ment may represent the most ef fective means of alleviating 3
that shortage of space swiftly, economically, and safely, while retaining the spent fuel in a form and location that permits use of other alternatives later.
As such, the transshipment has critical " independent. utility" by remedying a shortage of space for ""el storage, while escaping irreversible commitment to any long-run alternative.
Moreover, in the short run tM utility would not have to expend larger sums of money to construct an off-site storage facility (assuming one could be sited and licensed in timely fashion), or, if physically possible, to modify for additional storage space on-site.
In short, the a
Board's conclusions are 180 degrees from the facts:
rather than committing the utility to any overall fuel management prog ram, a transshipment serves to maintain the maximum number of options safely and with relatively little expense.
A second relevant factor the Licensing Board ignored is the regulatory " squeeze" it imposes on utilities.
The Federal Energy Regulatory Commission and, in most cases, a state public utility commission, require utilities to avoid needlessly expensive alternatives in cases where several options may be consistent with health and safety responsibilities under the Atomic Energy'Actd! and 4/
42 U.S.C.
SS2011-2296 (1976 & Supp. II 1978). 4
~, -
environmental parameters contained in the National Environ-mental Policy Act ("NEPA").5!
Ti..s dilemma is reflected in the June 2, 1980 Federal Energy Regulatory Commission Initial Decision in Virginia Electric and Power Company, Docket No. ER78-522, which denied Vepco the ability to increase its spent fuel expense in order to defray; future fuel disposal costs.
Id. at 15.
Sound regulatory decisions should accomodate, where possible, the pressure; imposed upon utilities by other agencies.
Such.accomodation was obviously possible in this instance, since transporta-tion of spent fuel has been cetermined to be a safe and environmentally acceptable activity.
The Licensing Board blithely declared, "in weighing alternatives the cheapest is not necessarily the best or safest."
Initial Decision at 58.
But where a utility.nay undertake one of several alternatives saf ely within the meanir.g of-the Atomic Energy Act and NEPA, the least expensive alternative, if mandated j
by other rate-regulating agencies, may be the optimum choice.
l The Applicant's decision to apply for the E aendment to License SNM-1773 represented a carefully-weighed judgment l
on behalf of that utility, among a limited number of choices, to maintain most ef fectively all possible options 5/
42 U.".C.
554321-4347 (1976 & Supp. II 1978). !
1 4
for future spent fuel decisions in light of all of the above factors.
ARGUMENT I.
THE LICENSIUG BOARD MADE FINDINGS INCONSISTENT WITH ESTABLISHED NRC AND DOT REGULATORY POLICY THAT TRANSPORTATION OF SPENT FUEL AS REGULATED IS SAFE AND ENVIPONMENTALLY SOUND.
The Licensing Board's Decision is replete with speculation and unfounded conclusions questioning the viability of transporting spent fuel by highway.
Aside from displaying an overt hostility to highway transport of spent fuel, which colors the entire Decision, the findings:
1) run counter to the current body of knowledge that spent fuel transport may be carried out safely, with a minimum of risk; and 2) are inconsistent with NRC and DOT regulatory policy that shipment of spent fuel is safe ar.d environmentally acceptable.
i A.
l Transport of Spent Fuel Has Been Determined To Be Safe And Environmentally Acceptable In the portion of its Decision weighing "alterna-tives" to transshipment, the Licensing Board opined:
The evidence in this proceeding was not persuasive in proving, by statistical analyses or engineering studies, that serious spent fuel transportation acci-dents or malevolent conduct could not
occur.
For example, the EIA analysis of possible sabotage of spent fuel in transit was rendered at least partially obselete [ sic] and invalid by the Commis-sion's subsequent (June 15, 1979) actions instituting regulations requiring safe-guard measures to be applied to spent fuel shipments.
Subsequent to that institution of regulations, the Commiss-sion on June 3, 1980 approved additional amendments to the interim regulations, further specified types of safeguards required for spent fuel highway ship-ments (amendments to 10 CFR Sections 73.1, 73.37, 73.72; Appendix D of 10 CFR Part 73).
Initial Decision at 59 (footnotes omitted).
Elsewhere in its discussion.of " Routine Transpor-tation Dose Impacts" the Board declared:
[T]here is no real assurance that a severe spent fuel-transport accident cannot occur.
The NFS-4 shipping casks to be used have not been tested for severe accident conditions.
Id. at 78:5l As the first assertion demonstrates, the Board blurs the distinction between spent fuel accidents and sabotage.
It is this confusion that enables the Board to err further in concluding that an accident involving a spent fuel cask could result in a serious release of l
radioactive materials.
Initial Decision at 61.
Tests and 6/
It is not clear why accident situations would be discussed in the " routine transport".section, or how this finding is. factored into the Decision.
Presumably it'is a health and safety finding under the Atomic Energy Act.
analyses performed to date indicate that this is not a real possibility in a credible accident situation.
In confusing the two the Board attributes problems relating to sabotage to accident scenarios, thereby painting accidents in a false light.
Each matter will be addressed in turn.
1.
The Risk From a Sabotage Incident Is Extremely Remote Studies performed on spent fuel casks used for highway transport have indicated at worst only a remote risk of release of radioactive materials resulting from sabotage of a spent 'uel cask.
In the first place, the casks are massive, extremely strong structures.
Tests performed by Sandia National Laboratories verified cask design and demonstrated dramatically that spent fuel casks survive unbreached even when a truck carrying the cask, and an oncoming locomotive crashing into the truck and cask, were destroyed.
Other eaually devastating tests f ailed to breach the cask.1/
7/
- See, e.g.,
R.
M. Jefferson, " Cask Demolishes Train Superstructure - Sustains Minor Damages,"
Nuclear Enci-neering Journal, Volume 22, 3o. 260, July, 1977; R.
M.
Jefferson and H.
R. Yoshimura, Crash Testing of Nuclear Fuel Shipping Containers, SAND 77-1462 (Sandia Laboratories 1978);
R.
Yoshimure and M.
Huerta, A Crash Test of a Nuclear Spent Fuel Cask and Truck Transport System, SAND 1977-0419 (Sandia Laboratories 1978);
H.
Yoshimura,
" Full Scale Test of Spent - Fuel Shipping Systems," Trans-actions of the American Nuclear Society (Nov. 28 - Dec.
2, 1977)..-
The casks are invulnerabla to small arms fire and small explosive charges.
In order even possibly to cause a serious breach of a spent fuel cask, a saboteur would have to reach the cask, overcome the security systems surrounding that cask, and place high explosive charges in a very precise configuration, probably directly in contact with the cask.8/
As the Sandia Report concluded, the uncer-tainty in cask design and charge placement facing an-adversary greatly impedes the likelihood of success.
Id.
The physical integrity of spent fuel cask is reinforced by stringent federal regulations.
The res-ponsibility for regulation of the transportation of spent nuclear fuel is held jointly by the NRC and DOT (through its Materials Transportation Bureau), pursuant to their Memorandum of Understanding E/
Spent fuel casks are required to be certified to comply with NRC regulations.
10 C.F.R.
S71.36 (1980) requires that a spent fuel cask subjected to the hypothetical accident conditions of Appendix B of Part 71 comply with shielding and release requirements provided in 571.36.
Licensing and Operational 8/
Sandia National. Laboratories, Transportation of Radio-nuclides in Urban Envi rons:
Draft Environmental Assessment, NUREG/CR 074 3 ("Sandia Report"), at 86-91 and-95-96.
9/
44 Fed. Reg. 38,690 (1979). l
requirements are centained i:' 10 CFR Parts 71 ana 73.
10 C.F.R. 571.5 (1980) requires spent fuel shipment to comply with DOT operational requirements in 49 C.F.R. Pts. 171-89 (1979).
In June of 1980, the NRC-promulgated an interim rule in final form imposing new routing and physical security requirements on licensed spent fuel shipments.
45 Fed. Reg. 37,399 (1980).
The bulk of these requirements are found in 10 C.F.R. 573.37 (1980).
The Licensing Board contends that the EIA performed for this licensing action was partially obsolete due to the NRC's suosequent decision to impose route and security requirements for spent fuel transport in 573.73.
Ironically, this new regulatory action would partially obsolete the EIA analysis only insofar as there currently are even greater protections against the remote possibility of a successful sabotage attempt on spent fuel than had the time the EIA analysis _was performed.1S!
existed at The spent fuel rule reflects the NRC's judgment that spent fuel can be transported safety, even hrough heavily populated areas.
The NRC did not find that spent fuel is likely to be sabotaged, indeed it found that it was highly unlikely:
"The Commission agrees that the massive, durable casks in which spent fuel shipments are made 10/
The changes were based solely upon safeguards, and not accident, considerations.
provide a high degree of protection against many kinds of sabotage, including explosive sabotage."
45 Fed. Reg.
37,403, col. 2 (1980).
It was only because a serious radiological release due to sabotage could not be disproved beyond every remote doubt, at least until the NPC could perform further tests on the response of the fuel to an explosive attack on the cask, that the additional measures were considered prudent.
The Commission reaffirmed its judgment that
" spent fuel can be shipped safely without constituting unreasonable risk to the health and safety of the public."
Id. at 37,403, col. 3.
d Thus the NRC spent fuel rule does not represent, as the Licensing Board imagines, an indictment of spent fuel transport. Ra ther, it represents a reaffirmation of the negligible level of risk involved in spent fuel transport and a cautious ef fort nevertheless to wipe out even that small risk.
In short, the NRC has determined that transport of spent fuel, if in compliance with all applicable regula-tions and in a certified cask, is safe from sabotage.
2.
Accidents Involving Spent Fuel Resulting In Serious Radiological Consequences Are Not Credible The Licensing Board confused accident and sabo-tage events, and erroneously speculated as to a severe.
accident in which radioactive materials might be released from a spent fuel cask.
There is no evidence whatsoever supporting this conclusion.
The studies to date all have shown that spent fuel casks as currently designed and constructed are virtually-impervious to breach under severe crash, fire, immersion and drop conditions.
The Department of Transportation, which possesses authority to regulate operational aspects of spent fuel transport to promote safety, also has examined the possibility of a serious accident in determining how to route shipments of spent fuel in its current routing rulemaking, HM-164.
45 Fed. Reg. 7140 (1980).
(This rulemaking will serve to provide a uniform system of transport routing guidelines, i
thus reducing obstacles to transport and enhancing its safety.)
In the notice of proposed rulemaking, the DOT l
concluded:
l Type B packaging.
. often must be heavily shielded and is designed to withstand' extreme accident conditions as simulated by a' 30-foot drop onto an unyielding surface; a 40-inch drop onto the end of a' pointed steel bar; exposure to a temperature or fire of 1,475*
F.
for 30 minutes; and submersion in three feet of water for eight hours
. Type B packaging, in.a' severe transportation accident, would be expected to survive without any significant release of its contents.
Spent fuel assemblies, for example, are shipped by highway as large quantity shipments in massive packagings [ casks] that may be
' 1
.~.
five (feet) in diameter, fifteen feet long and weigh up to 35 tons.
Casks are practically impervious to small-arms fire and small explosive charges.
. Extreme incidents which involve the release of as little as 1% of the solids [in the spent fuel class cask] as an aerosol would have extremely serious consequences. Such an incident, however, is likely only once in 25 billion years and is thought by the MTB not to warrant undue concern.
45 Fed. Reg. 7143, cols. 2-3 (1980) (emphasis added).
The Licensing Board observed:
"[T]wo reported serious truck accidents in the 3,600 highway shipments of radioactive spent fuel, fortunately neither involving radioactive releases."
Initial Decision at 61 (emphasis added and footnote omitted).
The implication is that a release was quite likely, and that avoidance of the risk was a' fortuity. To the contrary, it should be no surprise that there was no radioactive release.
As DOT explained in its Notice of Froposed Rulemaking for HM-164:
In a highway accident near Oak Ridge, Tennessee, on December 8, 1970, a spent fuel cask was thrown more than 100 feet when a truck driver while negotiating a wide turn lost control af ter swerving to avoid another vehicle.
Although the driver was killed in the impact, there was no release of spent fuel or increase in radiation.
Spent fuel casks of an earlier design also have been subjected to destructive testing simu-lating severe, high speed highway and rail accidents.
The casks survived with only minor damages that would have _
imposed little or no risk to the public if the events had been real rather than simulated.
45 Fed. Reg. 7143, cols. 2-3 (1980).
Both NUREG-017 0,
" Final Environmental Statement on the Transportation of Radioactive Material by Air and -
Other Modes", and the Sandia Report support the NRC l
and DOT judgment that the risk of occurence of a serious accident resulting in release of material from a cask near large populations is extremely low.
NUREG-0170, at 5-52-5-53; Sandia Report at 68.
In addition, 10 C.F.R. S51.20 (1980) (Table S-4) contains standardized impacts of transportation of spent fuel from a light water cooled nuclear power reactor like Oconee.
The summary contained in Table S-4 sets forth the environmental risk from accidents in transport, and concludes:
i l
Although the environmental risk of radiological effects stemming from transportation accidents is currently incapable of being numerically quantified, the risk remains small regardless of whether it is being applied to a single reactor or a multireactor site.
l Table S-4, n.4.
The conclusion again is that both the NRC and DOT l
have determined that transport of spent fuel is safe from severe-accident, that any environmental risk is at most de 1
minimis. i
B.
The Licensing Board Decision May Not Second-Guess DOT And NRC Policy That Transport Of Radioactive Materials As Regulated Is Safe In addition to the findings as to sabotage and accidents discussed above, the Licensing Board found that:
Even if it is a " safe" accident i.e.,
the radioactive exposure to workers and the public falls within regulatory limits, it could as shown by the TMI experience become a widely publicized media event with serious social, political and economic consequences for the public as well as the entire industry.
Initial Decision at 79.
The Licensing Board's findings here, as in the findings auoted earlier, are erroneous because they f ail to consider compliance with applicable regulations and findings of the NRC and DOT, discussed above, which are conclusive as to the safety and environmental impacts of i
spent fuel transportation.
It is black letter law that an agency is bound by l
its own regulations.
U.S. v. Nixon, 418 U.S.
683 (1974);
l Service v. Dulles, 354 U.S.
363 (1957); Accardi v. Shaughnessy, I
347 U.S.
260 (1954); United States Lines, Inc. v.
FMC, 584 l
F.2d 519 (D.C. Cir. 1978).
Indeed, 10 C.F.R. 52.758 (1980) precisely and wisely embodies this policy by preventing attempts by parties in adjudicatory proceedings to collater-ally attack the effectiveness of duly-issued regulations.
l
I Rather, if the policies embodied in those regulations are considered inappropriate, the challenging party either must make a special showing why those regulations should not be considered applicable, or file a petition for rulemaking.
In this proceeding, neither event occurred.
Nevertheless, the Board permitted the adjudicatory pro-ceeding to be used as a forum to undermine and counter the safety and environmental judgments of both the NRC and DOT, as well as the justifiable expectations of licensees that had been previously formed.
Such action is contrary to administrative law and must be reversed.
Teleprompter Cable Communications Corp.
v.
FCC, 565 F.2d 736 (D.C. Cir.
1977); Ruangswang v.
Immigration and Naturalization Service, 591 F.2d 39 (9th Cir. 1978).
The Court explained in Teleprompter:
In effect the Commission holds that the i
grandfathering provision does not mean i
what it says because in this case the Commission thinks that the "publi c interest" requires a different inter-pretation.
We conclude that the Com-mission's ruling is unwarranted and arbitrary.
The Commission's notion of the public interest cannot justify its failure to abide by its own rules and i
to act in a manner consistent with its own precedents.
565 F.2d at 742.
In Ruangswang, the agency declined to recognize the investor status of an immigrant under INS. regulations -
which exempted an investor from labor certification, arguing "that merely meeting these objeccive criteria is unsufficient to qualify one for investor status, and thus for exemption from labor certification."
591 F.2d at 42.
Although the regulation set forth objective standards to determine investor status, the Board in an adjudicatory proceeding on labor certification determined that additional factors beside those objective standards applied to determine investors status.
The Court held that a determination in an adjudicatory proceeding that objective compliance with-existing regulations was somehow " insufficient" was reversable error:
[W]e hold there was an abuse.of discre-tion in attempting to establish a new standard based upon Heitland and applying it to Mrs. Raungswang by the adjudicatory process.
Id. at 46 (footnote omitted).
More spe'cifically, United States Courts of Appeal' in three separate decisions have held that deference to applicable federal regulations generally requires approval of shipments of radioactive materials tendered in conformance-with those regulations.
In Air Line Pilots Association, International v.
CAB, 516 F.2d 1269 (2d Cir. 1975), the issue wcs an embargo by airlines designed to relieve them of responsibility for carrying certain radioactive materials that were permitted I
i to be carried under FAA/ DOT regulations.
The Second Circuit sustained the actions of the CAB in rejecting the embargo.
It disposed of an argument that DOT /FAA rules established only minimum requirements as follows:
There are _ rules which apply to the carriage of hazardous materials, and it is implicit in these rules that such goods, marked, labelled, packaged and stowed in accordance with such rules, are not inimical to flight safety in the judgment of the agencies charged by the Congress with the responsibility of making these determinations.
The premise that the airlines have the right to disregard the entire regulatory scheme is not only violative of the language of Section 1511(a) but of common sense as well.
Id. at 1276.
The airlines also filed tariff provisions that l
were the equivalent of a "flagout" from the applicable tariff.
The lawfulness of the flagout was before the D.C.
l Circuit in Delta Air Lines, Inc. v. CAB, 543 F.2d 247 (D.C.
i Cir. 1976). On the safety issue the Court ruled:
[I]t is clear to us that the [ CAB]
fulfills its responsibilities with respect to safety questions when it determines that all FAA/ DOT safety requirements have been satisfied.
l Perhaps under Section 102 the [ CAB]
retains a small residue of authority over safety issues whereby it could impose hazardous cargo standards stricter (but l
not more lenient) than those of FAA/ DOT, l
yet in general we believe that the [ CAB]
should defer to the safety expertise of l
its sister agencies and accept the FAA/ DOT position on safety as establishing
=
t
]
i both an inner and an outer limit on its j
safety jurisdiction.
t i
Id. at 260 ( footnotes omitted).
See also, Kappelman v.
Delta Air Lines, Inc., 539 F.2d 165 (D.C. Cir. 1976),
cert. denied, 429 U.S. 1061 (1977).
j i
Although this case arises beforo NRC, one of the i
expert agencies with jurisdiction to consider the issue of the safety of the transportation of spent fuel, the Licensing Board should have deferred to the judgments expressed in the NRC/ DOT rules that shipment of spent fuel in certified casks and in compliance with all NRC and DOT operating procedures, is safe and environmentally acceptable.
Otherwise, the very purpose of having a rule would be i
thwarted.
As a matter of NEPA, Table S-4, supra, consti-tutes an independent basis for reversing the Licensing Board's Decision.
The environmental impacts of transpor-l' l
tation have heretofore been considered in the Environmental i
Report prepared for the Oconee facility, which incorporated Table S-4 as required by 10 C.F.R. 551.21 (1980).
In determining to issue an operating license for the Oconee t
facility on the basis of an Environmental Report'and accompanying EIS which included the assessment contained in Table S-4, the NRC at that -time made the judgment that impacts from transport of spent fuel as stated in that --
Table were understood, the risks of transportation accidents were understood, and the facility was to operate with the understanding that eventually spent fuel would be discharged l
from the facility and transported elsewhere.
In now determining at this late stage that the environmental " risk" of transportation incidents from that licensed reactor are suddenly unacceptable, in the absence of any showing that all applicable regulations will not be duly followed, the Licensing Board undercuts the earlier licensing decision that Oconee should be permitted to operate, produce spent fuel, and transport it to another location.
It should also be noted that subsequent to i
promulgation of the spent fuel requirements in 10 C.F.R.
S73.37 (1980), NRC has proposed revisions to its regulations implementing NEPA.
In its notice of proposed rulemaking the NRC has declared categorically that a route approval for spent fuel is not a major federal action significantly affecting the human environment.
45 Fed. Reg. 15,184 (1980).
If the impact of a route approval does not attain NEPA stature, the Licensing Board is overextending reason I
to require proof, under the requirements of NEPA, that a remote risk from the same act, ion can never occur.
1 The result of the Jyteensing Board's Decision is thit licensees may not rely c';t compliance with existing l
i o 9
regulations for transport of spent fuel or licensing of reactors, with the confidence that compliance with those regulations will be rewarded by regulatory certainty and the ability to operate as - licensed.
The Licensing Board, displaying obvious hostility to transport of spent fuel, concluded that even if all NRC regulations were met, transport must be considered a disfavored alternative because of speculative, de minimis risks and the Applicant's
" failure" to rebut those speculative risks.
In spite of compelling evidence and policy that transport'is safe, the Licensing Board ignored the evidence in the record on the safety of fuel casks and incredibly placed a burden on the Applicant to do the impossible:
to disprove any basis underlying the Board's unfounded speculation that a serious accident could occur.
By definition, the speculation $could not be disproved because, being baseless, it of fered nothing to rebut.
All evidence points to the elative safety of spent fuel transport, even under accident conditions.
It is difficult to imagine what a licensee could have produced to overcome a conclusion that "it is not enough in weighing alternatives simply to conclude that spent fuel casks'would not breach in most accident situations or that the proba-bility of the accident occuring is remote, or that the likelihood of an accident involving a cask is remote",
or -..-
1 to counter the argument that "as shown by the TMI experience
[an accident) become a widely publicized media event with serious social, political and economic consequences for the public as well as the entire industy."
Moreover, the Licensing Board in effect has incorporated new standards into proper health, safety and environmental findings.
The TMI statement is probably the most glaring example of the Licensing Board's refusal to recognize the policy embodied in NRC and DOT regulations,
]
as well as Table S-4.
This " serious social, political and economic consequer.ce" is no more a salient problem now than when Oconee was originally licensed and the NRC and DOT promulgated rules for spent fuel certification and transport.
To spring a surprise fin 6ing on the Applf. cant at this stage of the game, based on the vague notion of remote risk and social, political, and economic consequences, undermines the entire regulatory structure for nuclear power generation.
(
II.
i l
THE BOARD IMPROPERTY INCLUDED FINDINGS ON PSYCHOLOGICAL STRESS The Licensing Board also found that the EIA did not adequately consider the potential social consequences
. of transshipment, and the " psychological stress" that 300 shipments of spent fuel might impose.. Initial Decision at 40-51.
Subsequent to this Initial Decision, the Commission addressed the issue whether such psychological stress was a i
,m._,.
..m.,
relevant f actor under the Atomic Energy Act and NEPA in Met. ;vlitan Edison Company (Three Mile Island Nuclear station Unit 1), CLI-80-39 (December 5, 1980).
The Decision was rendered by the four Commissioners split evenly, which let stand the Board's refusal to consider stress under
~
either statute.
Commissioner Hendrie's Opinion explains eloquently the wisdom of the outcome:
This agency's expertise includes radio-logical health and safety and environ-mental effects related to nuclear power plant construction and operation; it does not include psychological stress I cannot believe that the Congress, in passing the Atomic Energy Act, intended that the Commission should divert resources frcm its real task--that of protecting public health and safety from radiological hazards posed by nuclear power plants--and reassigning them to the chimerical task of evaluating public anxieties.
The public woulo indeed have grounds for concern if members of this agency's staff, instead of working to reduce the likelihood of radiological harm to the public, were assigned instead to analyze the degree to which citizens worried about such harm.
l Opinion of J.
Hendrie at 6.
If psychological stress is determined to be an impact which must be mitigated (in the NEPA sense of that term), there would seem no obvious basis for differentiating l
between rationally and irrationally grounded anxieties.
If anxieties are rationally based, the corrective measures which would alleviate the stress would presumabley be justifiable in terms of protecting physical health and safety--
4 j
d 1
irrespective of their effect on psycho-logical stress.
If the anxieties are irratictally based, on the other hand, then tht] are by definition not likely to i
be alleviated by a demonstration that some - oitional safety feature has been added.
Id.
s^
9.
I believe that the.
appropriate means for the Commission to deal with psychological stress in this case is to make a sound safety decision and to let the factual basis of its decision be disseminated widely.
Id. at 10.
In addi tion, the majority of judicia opinion i
construing the requirements of NEPA similarly Lind that l
psychological stress is not an appropriate inquiry under NEPA.
Nucleus of Chicaco Homeowners v. Lynn, 524 F.2d 225 I
(1975), cert. denied, 424 U.S. 976 (1976); Hanley v.
i Kleindienst, 471 F.2d 823 (1972), cert. denied, 412 U.S.
908 (1973); Firc: Mational Ba: k of Chicago 'v.
Richardson, 484 F.2d 1369 (7th Cir. 1973); cf. Maryland-National I
Cacital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973).
l i
CONCLUSION
[
The Decision ' belcw r. ins blindly. against evidence i
and regulatory policy, denying Applicant's request without-notice that agency policy would not.be honcred.
As important, transportation of spent fuel is safe and the environmental i-4 w- = -
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risk therefrom is negligible, facts that the Board seemed curiously unwilling to face.
The regulatory havoc played by this Decision must not be permitted.
The Decison should be reversed, with an order to grant Duke Power's application.
Respectfully submitted,
\\,
Leonard M. Trosten
- 11. Reamy Ancarrow Michael F. McBride LeBOEUF, LAMB, LEIBY & MacRAE 1333 New Hampshire Avenue, N.W.
Suite 1100 Washington, D.C.
20036 (202) 457-7500 Attorneys for Electric Utility Companies Nuclear Transportaticn Group December 22, 1980.-.
. _. -