ML19343C027
| ML19343C027 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/09/1981 |
| From: | Jeffrey Riley CAROLINA ENVIRONMENTAL STUDY GROUP |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102180515 | |
| Download: ML19343C027 (12) | |
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s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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SEFORE THE ATOMIC SAFETY /dD LICENSING APPEAL BOA. O A'
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In the Matter of
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DUKE PO'.!ER COMPANY O8k
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Docket No. 70-26')O (Amendment to Materials
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D License SNM-1773 for Oconee
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Nuclear Station Spent Fuel
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Transportation and Storage
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At McGuire Nuclear Station
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CESG 'S REP LY TO APPELANT'S BRIEFS
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D Exceptions to the Initial Decision in the instant m.a issued October 31, 1980, were taken by Applicant, Duke Power Company (Duke), and the Nuclear Regulatory Commission staff (NRC), November 10, 1960.
Members of the Electric Utility Companies Nuclear Transportation Group (NTG) requested permission to file a brief Amicus Curiae.
This unopposed petition was granted.
Filing was on December 22, 1960.
This Atomic Safety Licensing and Appeal Board (ALAB) permitted repy briefs by the parties, Natural Resources Defense Council (NRDC) and Carolina Environmental Study Group (CESG) to be filed by February 9, 1961.
The briefs submitted by DPC, NRC and NTG total 239 pages.
CESG believes that it will be an aid to the ALAB to identify and respond to the basic themes of the several filings on the premise i
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I that the merits of detailed arguments can best be weighed in this
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1 perspective.
THE BRIEF AMICUS CURIAE It is NTG's concern that the " Licensing Board's decision
$0h threatens their ability to maintain all possible nuclear storace/ hS/
transoortation ootiens at this time," (p. 2, emphasis supplied).
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The government is made responsible for present problems, ".
born of continuing delay and uncertainty.
in developing and implementing its policy on management at the back end of the fuel cycle," (p. 2).
In being denied a license to transship spent fuel f rom Oconee to McGuire it is argued that Duke's options are being foreclosed rather than, as the ASL3 held, preserved.
At the time of applying for the license to transport DPC represented that the time at which it would lose full core reserve was fast approaching, that for a variety of reasons the only solution of the problem was transshipment to McGuire.
In the course of the hearings Duke found means to increase the storage capacity of its Oconee fuel pools such that the present estimated date of losing full core reserve, without transshipment, is about 1990 (I.D. pp. 37-39).
The responsibility for the fuel cycle, except for ultimate disposal, is clearly that of the utility.
However if it places itself in a position of apparent jeopardy it becomes possible to make a case for further subsidization by the federal government.
The actions of the EPA in regard to hazardous wastes make clear that the responsibilty lies with the generator.
It is equally clear that when the generator can no longer be reached the responsibilty becomes a public burden.
By opting for nuclear generation, a utility does not relieve itself of the responsibility for the wastes it produces.
The Atomic Energy Act of 195h, as amended, requires the NRC to regulate nuclear industry in regard to public health and safety and national security.
The NRC is not required to guarantee profitability to those who choose nuclear generation as an enterprise.
1 2
Indeed any fostering of the profitability of nuclear generation by the NRC is contrary to the Atomic Energy Act aa amended, wherein promotional matters were split off from regulation and made the concern of the Department of Energy (as parented by the Energy Research and Development Agency).
Juxtaposed to the utility's objective of maximum profit-ability is the NRC's mandated mission of protecting the public health and safety, from staff member to commissioner.
NTG complains that the ASLB made a finding inconsistent with the maintenance of j
"all possible nuclear storage / transportation options."
It did indeed.
The ASLB based its findings on the lack of ".
.a reasonable assurance that the activities authorized or encompassed oy the license amendment ca be conducted without endangering the health and safety of the public," (I.D. p. 90), and that "The issuance of the license amendment could be~ inimical to the health and safety of the public,"
(p. 90).
It found that the Staff review ".
[was] improperly f
segmented and unduly limited in scope, inadequate in the consideration of reasonably predictable environment.a1 impacts,
" (p. 91).
The correction of deficiencies in the safeguarding of. health, j
safety, and the environment, whether or not conducive to the
- l-maintenance of NTG's options, is the clear responsibility of the ASLB.
It is not the protection of investors in the utility insofar as their interest may be protected by the maintenance of options which do not pass the scrutiny of the ASLB.
i Each utility that has opted for nuclear generation-has known of. the reSulatory constraints exercised by the AEC/NRC as mandated by the Atomic Energy Act.
'The latitudes of businesses in'a' highly
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regulated segment of industry are clearly less than'those for
-g-essentially unregulated segments.
The utilities represented (NTG footnote 1) are all investor owned free enterprises operating in the framework of regulated revenues in return for a monopoly.
The officers or these utilities are presumably familiar with the existence of risks in the normal business environment.
They are already materially screened from these risks by operating as state regulated franchises.
As utility earnings are based on the value of plant in service, and as nuclear plants invariably have required larger investments than fossil plants of equivalent capacity, the decision to go nuclear is made in pursuit of larger earnings.
On the other side of the larger earnings base is the actuality of more regulation.
Neither the NRC nor the general public compelled a utility to choose nuclear generation.
There is also more risk in nuclear generation in that it is a new and still developing technology with' serious problems related to the high radioactivity of the waste produced.
Decisions, such as the instant I.D., which may remove some options, and hence adversely affect the earnings segment of permitted revenues, are a forseeable business risk which utility managements were in a position l
to tcke into account.
l The ultimate responsibilty of the utilities in NTG is to their investors.
The responsibility of the NRC is to the public, 1
as the protector of its health and safety.
Wherever these two responsibilities are in conflict it is clear that the NRC must l
prevail.
NTG argues that this ASLB went beyond NRC staff established criteria for assessing possible risk to health and the environment.
Several events have demonstrated beyond reasonable doubt that NRC
-5 staff are not infallible in their judgments and that the underlying plan of assuring safety through 10 CFR regulation is imperfect.
Tne events in the accidents at both Browns Ferry and Three Mile Island were in no way anticipated by staff.
Multiple failures, a prominent characteristic of each of these accidents, had not previpusly been considered.
The conseqences of a small LOCA had been incredibly underestimated.
It would take a most zealous apologist to sincerely contend that, although the consequences have been nf more grave than appears, "the system worked".
A loss of about a billion dollars is difficult to construe as a public benefit.
It is the role and the duty of the ASLB to exercise reasoned judgment, based on a specific record, as to whether a proposed action is consistent with best maintaining the public health and safety in relation to credible alternatives.
In the instant matter the ASLB found that NRC staff had failed to consider the full consequences of a cascade process of moving the overflow of spent fuel from one generating site to another in a progression with no visible termin-ation; that Staff had decided that 300 transfers,from Oconee to McGuire met all relevant criteria--but that 410 transfers did not (Duke's initial Application);.that Staff had let a signal be sent to the industry relating to its subsequent handling of spent fuel problems--absent a solution to the problem of long term disposal--
that it would be permissible to put off dealing with the matter of on-site storage by resorting to improvised, interim measures.
Given a larger view of the matter than afforded by the peep hole chosen by NTG we can only conclude that the Initial Decision was correct.
DA critique of the effectiveness of the NRC scheme of control through regulation is provided by The Lessons Learned (continued on next page)
. THE NRC BRIEF The exceptions taken by LRC make clear their concern with protecting established practices and asserting the infallibility of Staff.
Twentyone exceptions are listed.
Of these eight primarily concern questions of law; 10 concarn matters of judgment in this case; and three combine both.
Four areasof alleged error are identi_^1ed: 1) absolute assurance of no risk is not required; 2) the Environmental Impact Appraisal satisfies NEPA requirements; 3) the FGEIS eliminated the need for the five-factor test which, in any event, had been satisfied; and k) errors regarding (a) fear and stress, (b) cumula-tive environmental impacts, (c) sabotage, and (d) the cask drop accident.
The ASLB did not require an absolute assurance'of no risk.
The alternatives it required to be left open for consideration, expansion of fuel pool capacity, transshipment between pools 1/2 and 3, are not without risk.
The hearing record contains Duke and Staff estimates and actual measurements of exposure in the pool capacity expansion work.
The building of an on site ISFSF and transfer of fuel to it would again involve risk.
Whatever interim storage place is provided for spent fuel, it will eventually be i
transported to an ultimate storage site.
What the ASLB's decision effectuates is 300 fewer transpcrtation events.
Transportation (continued from preding page) Task Force reports, NUREG-o578 and EUREG-0565, in which, inter alia, it is recognized that about half of reportable incidents arise from operation, i.e. deficiencies in human performance.
No immediate remedy is seen (NUREG-0576, 2.2 3,
- p. 14).
"What we have found is that prescriptive
. licensing pra.ctices only add to the quiltwork of regulatory practice and do little to directly address the nation's heightened concern for the safety of nuclear power plants,"'(NUREG-0585, p.1-2).
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accidents as indicated by the EIA can result in material releases and dosages related to the basically unpredictable proximity of people.
The elimination of unrequired transport may reasonably b'e expected to reduce the likelihood of a transportation accident and its attendant consequences.
Does the EIA satisfy NEPA requirements?
It is a curious day fact that the Staff imposed on Duke a minimum cf 250/ fuel aging as opposed to the 120 days sought by Duke.
Even more curious is the fact that Staff denied Duke's application to transship 400 spent fuel assemblies but approved an amended application to ship day 300.
Would the shipment of h06, 120/ aged assemblies have exceeded the EIA/EIS threshold?
If the casks, which are certified by the NRC as suitable for the shipment of 120 day aged fuel,-are properly licenced, why did the Staff not approve 120 day aged shipments?
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If 300 such shipments present no unacceptable risk to the health and safety of the public, why are a mere 106 more unacceptable?
These arbitrary and unexplained actions by Staff cannot help but raise questions about proximity to a significant, level of risk.
As the Staff could not approve the shipment of 408 assemblies aged l
120 days, it is hard to fault. the ASLB for its judgment that signif-icant risk could be avoided by not shipping 300 assemblies aged l
250 days.
The ASLB is directly charged with responsibility for its decisions.
It is not merely an umpire calling balls and strikes for opposing teams.
It did not err in making its own five-factor evaluation for this specific set of circumstances.
It is well recognized that even where generic regulations apply that an ASLB must determine whether there are special circumstances and so decdide.
i Fear and stress are known to lead to somatic disorders.
Although the Staff does not presently use fear and stress as factors in assessing the health consequences of events associated with the transport of radioactive materials, it will, in all likelihood, do so in the future.
The consequences of fear and stress in the
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TMI accident were massive and the subject of attention in both the Kemeny and Rogovin studies.
The record in this hearing makes clear the fears of persons along the proposed routes, whatever the somatic and genetic effects of the radiation exposure accompanying routine transport may be.
It is apparent that the cumulative environmental impacts accompanying an incompletely defined program of transportation events, the cascade program, cannot be assessed.
It is also clear that the Staff failed to consider this aspect of Duke [s open-ended plan.
The ASLB correctly held that the assessment of future consequences did not satisfy NEPA requirements.
Duke expressed its willingness to comply with the newly promulgated anti-sabotage requirements of 10 CFR,573 requiring an escort of spent fuel transshipments.
It was clear to the ASLB that a situation existed not addressed by the new regulation. The repetition involved in 300 shipments and the widespread public awareness cf these shipments would provide a saboteur a basis for planning and employing the level of force necessary to assure success.
The ASLB was right in finding for this circumstance that compliance with the regulations would, however satisfactory for isolated, irregular, nonroutine shipments, be ineffectual in the matter of 300 routine shipm'ents.
_9 The recognition by the Lessons Learned Task Force of the
-eakness of the control of operations by a "quiltwork of regulatory practice" (footnote, p. $) supports the ASLB's finding that a physical barrier would be a more effective means of preventing a cask drop accident than the administrative control approved by Staff.
The ASLB cannot be held to have erred in advocating prudence in a matter wherein it could be readily effectuated and in which the absence of a
physical safeguard could, at the very least cause a mess and additional exposure to Duke employees.
The NRC staff assertion of 2 t jented and prejudicial errors by the ASLB is not supported by the facts.
The Initial Decision should be upheld.
THE DUKE BRIEF In Duke's view, Exceptions to Initial Decision, the ASLB erred 68 times.
In the interval pp. 11 to 55 of the Initial Decision Duke finds error on every single page.
One can appreciate Duke's disappointment in being denied its application.
This disappointment may have affected its objectivity.
It seems'unlikely that an experienced and qualified ASLB would so consistently and so persist-ently commit errors of law and judgment of fact.
It is difficult to believe that a prejudicial attitude was present, certainly considering the number of times in the Initial Decision in which intervenor's views were not sustained.
The length or Duke's brief exceeds normal bounds by a factor two (Duke footnote 108 on p. 134).
The argument in support of Duke's seven consolidated exceptions is ample.
There are 192 citations.
Is it a measure of the Strength of Duke's case that it protests so much?
_10 Whether intentional or not, this over long pleading places unnecessary burdens on this ALAB and parties supporting the Initial Decision.
Reply briefs responding in particulars to Duke's many authorities and arguments would add several hundred more pages to the pleadings.
It is not unreasonable to assume that when the law is clearly and unambiguously favorable to the pleader, it is in the pleader's interest to present that law in a concise, readily tracked, un-elaborated form.
The tryer can be led by a well defined path to a favorable conclusion.
Despite the massive effort on the part of Duke, the points of law and fact iterated in response to the NTG anc NHC briefs support the finding of the ASLB.
CONCLUSION The exceptions of appelants and friends to the Initial Decision in regard to either matters of law or findings of fact are not persuasive.
The Initial Decision should stand.
Re pectfully mi,tted,
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Jesse L. Riley or CESG At Charlotte, N.C.
February 9, 1961
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m UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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ee C1 A9 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL dWSi[t te
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In the Matter of
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DUKE POWER COMPANY
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Docket No. 70-2623
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(Amendment to Materials
)
License SNM-1773 for Oconee
)
Nuclear Station Spent Fuel
)
Transportation and Storage
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At McGuire Nuclear Station)
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AFFIRMATION OF SERVICE I hereby affirm that copies of "CESG's Reply to Appelant's Briefs and to Amicus Brief", dated February 9, 1981, have been served on the following by deposit in the U. S. mail this ninth day of February, 1961:
Alan Rosenthal, Esq.
Edward G. Ketches, Esq.
Chairman Counsel for NRC Regulatory Atomic Safety and Licensing Staff Appeal Board Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Dr. John H.
Buck Richard P~.' Wilson, Esq.
l Atomic Safety and Licensing Assistant Attorney General Appeal Board State of South Carolina i
U.S.
Nuclear Regulatory 2600 Bull Street Commission Columbia, South Carolina 29201 Washington, D.C.
20555 l
Richard S.
Salzman, Esq.
Ellyn R. Weiss, Esq.
Atomic Safety and Licensing Lee L.
Bishop, Esq.
Appeal Board S. Jacob Scherr, Esq.
U.S. Nuclear Regulatory Harmon & Weiss Commission 1721 Eye Street, N.W.
Washington, D.C.
20555 Suite 506 Washington, D.C.
20006
Leonard M. Trosten, Esq.
William L. Porter, Esq.
M. Reamy Ancarrow, Esq.
Associate General Counsel LeBoer, Lamb, Leiby & MacCrae Duke Power Company 1333 New hampshire Ave.,
N.W.
Post Office Box 33189 Suite 1100 Charlotte, North Carolina 28242 Washington, D.C.
20036 Chairman Chase R.
Stephens Atomic Safety and Licensing Docketing and Service Station Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 J. Michael McGarry, III, Esq.
Debevoise & Liberman 1200 17th Street,. N.W.
Washington, D.C.
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