ML20003B850
| ML20003B850 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/24/1981 |
| From: | Mcgarry J, Porter W DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8102250719 | |
| Download: ML20003B850 (18) | |
Text
.A UNITED STATES CF AMERICA NUCLEAR REGULATORY CCMMISSICN BEFORE TEE ATCMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Duke Power Company
)
Cocket No. 70-2623
)
(Amendment to Materials
)
y s
License SNM-177.3 for Ocenee
)
4, Nuclear Station Spent Fuel
)
4 Transportatior, and Storage
)
pf ooCKETED At McGuire Nuclear Station)
)
usNPC 4
f, FEB 2 41981 > ;
Otti:e of the Secretary 4
0::keting & Serwce g
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m APPLICAN'h'S REPLY BRIEF IN SUPPORT OF EXCEPTIONS 4
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'b' J. Michael McGarry, III, Esq.
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DEBEVOISE & LIBERMAN l
Of Counsel S
William L.
Porter, Esq.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION 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)
)
APPLICANT'S REPLY BRIEF IN SUPPORT OF EXCEPTIONS J. Michael McGarry, III, Esq.
DEBEVOISE & LIBERMAN-Of Counsel' William L.
Porter, Esq.
-DUKE POWER COMPANY February 24, 1981
TABLE OF CONTENTS Page I.
INTRODUCTION 1
II.
ARGUMENT 2
A.
Distortion of The Hearing Record by NRDC 2
1.
NRDC Distorts the Record Regarding Applicant's Past Actions Involving Spent Fuel Storage Options 2
2.-
NRDC Distorts the Record Regarding Applicant's Reliance on a Government "Away From Reactor" Interim Storage Facility 3
3.
NRDC Distorts the Record With Regard to' Currently Available Options for Continued Storage of Oconee Spent Fuel 4
B.
NRDC Fails to Justify The Erroneous Conclusion That A Broader Environ-mental Assessment Is Required Here 5
C.
To The Extent The NRC Staff Had An Obligation Under Section 102(2)(E)
Of-NEPA To Consider Alternatives To The Proposed Transhipment Plan, Such Obligation Was Fully Satisfied 7
D.
NRDC Has Not' Justified The Zero Risk Standard Utilized By The Board 8
E.
The Practical Impact of The Licensing
. Board's Decision.
9 III. CONCLUSION 12 t
i TABLE OF AUTHORITIES I
CASES Page Citizens For Safe Power'v. NRC, 524 F.2d 1291, 1299-1300 (D.C. Cir. 1975) 9 NRDC V. Calloway, 524 F.2d 79 (7th Cir. 1975) 5, 6,
8 1
l Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979) 5, 6,
8, a
STATUTES National Environmental Policy Act of 1969, 42 U.S.C.
{4321 et seg 7,
8 MISCELLANEOUS Cong. Rec.,-S17455, December 20, 1969 8
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9 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)
)
APPLICANT'S REPLY BRIEF IN SUPPORT OF EXCEPTIONS I.
Introduction The Initial Decision ("I.D.")
of the Atomic Safety and Licensing Board
(" Licensing Board") was issued in this proceeding on. October 31, 1980.
On November 10, 1980, Duke Power Company (" Applicant") filed exceptions to that decision and on December 10, 1980 Applicant filed its Brief in Support of Exceptions
(" Initial Brief").
On January 16, 1981 Applicant requested permission to file a reply brief.
By order of January 19, 1981 Applicant was given permission to file this reply brief.
Briefs opposing exceptions were filed on-February'9, 1981 by the' Natural Resources Defense Council ("NRDC") and by.the Carolina Environmental Studies Group ("CESG").
1/.
1/
Applicant ^does not reply to CESG because, in Applicant's view, the CESG Brief does not discuss the merits of the exceptions.
_..- =
f 2-In many respects, the NRDC has simply not responded to Applicant's Initial Brief.
Accordingly, in this Reply Brief Applicant will ILnit its comments to the following P
areas:
- 1) the factual distortions in the NRDC brief; 2) the case law on segmentation; 3) the significance of NEPA section lO2(2)(E); and 4) the Licensing Board's error in use of a zero risk standard.
In so limiting its reply brief,,
Applicant' respectfully requests the Atomic Safety and Licensing Appeal Board (" Appeal Board") to carefully consider all of the points covered in Applicant's Initial Brief.
II. Argument A.
Distortion Of The Hearing Record By NRDC:
NRDC's Brief is replete with factual distortion, inaccuracies and misrepresentations of the hearing record.
While a complete response to all such inaccuracies would be duplicative of our Initial Brief, major areas of such misrepresentation are addressed below.
- 1. NRDC Distorts the Record Regarding Applicant's Past
. Actions Involving Spent Fuel Storage Options.
NRDC maintains that it is " Duke's policy
[to] make its-decisions with respect to storage (of spent
~
~
fuel] at the last moment, ensuring-that shipment is not only the cheapest, but arguably the only possible short term action." _-(NRDC ' Brie f p. 19).
In making such a sweeping-
3-accusatory conclusion, NRDC simply ignores the discussion of Applicant's actions and the record evidence cited in Applicant's Initial Brief at pp. 7-18.
In sum, the record evidence establishes that, with the exception of construction of an independent spent fuel storage installation, ("ISFSI"), Applicant has pursued in a timely manner every technologically viable spent fuel storage option available.
With regard *to an ISFSI, as discussed infra, the record supports Applicant's choice not to pursue this option at this time.
2.
NRDC Distorts the Record Regarding Applicant's Re-liance on a Government "Away From Reactor" Interim Storage Facility.
NRDC states that "[t]he consistent and uncontro-verted evidence with respect to Duke's policy on spent fuel is that it is singularly predicated on avoiding cost until the government provides an AFR (NRDC Brief p.
19).
In support of this position NRDC first relies on portions of the testimony of Ralph W.
Bostian (Applicant Exhibit 3) at p.
5 and 7.
Since such portions of Mr.
Bostian's testimony were stricken from the record, N RDC ' s reliance on them is inappropriate.
(Tr. 724-5).
NRDC also quotes the following portion of a memorandum from H.
T.
Snead regarding a telephone conversation with a Department
~
of Energy employee:
Indeed our plans are~ premised on avoiding significant costs of spent fuel storage while waiting for government to act on their plans for storage.
[NRDC Exhibit 2 at p.
13 e
+
g 7
m f g -
. _ _ In stating that the foregoing constitutes " consistent and uncontroverted" evidence of " Duke 's policy," NRDC ignores the very next sentence of the memorandum which shows that government storage represents only one of many possible options:
"[G]overnment storage represents a no less viable storage alternative than Duke's other alternatives and, from our standpoint, should not be foreclosed by the construction of on-site pools."
(NRDC Exhibit 2 at p.
1.) 2/
In short, the sum total of the evidence which NRDC relies upon to establish Duke's alleged " consistent and uncontroverted policy" provides little support for NRDC's position.
- 3. NRDC Distorts the Record With Regard to Currently Available Options for Continued Storage of Oconee Spent Fuel.
NRDC maintains that instead of the action proposed here Applicant should pursue the other options currently available to it to store spent fuel (i.e. reracking the Oconee Unit 3 pool with poison racks 3/ and construction of an'ISFSI at-Oconee.)
(NRDC Brief at 51 n.83). 4/
With
~
-2/. Mr. Snead also testified that the " plans" referred to were the plans of the " Nuclear Fuel Section," not plans of Duke Power Company (Tr. 456-7).
-3/.
NRDC incorrectly maintains that such reracking without off-site shipment will provide adequate storage space for Oconee spent fuel until 1991.
(NRDC Brief at 3 n.7, 8 n.21 and 52).
The record reflects that the 1991 date assumes both off-site shipment of 300- spent fuel assem-blies and the poison reracking of the Oconee Unit 3
' pool.
(Tr. 4762; Staff Exhibit 36 at Table).
~
4/
Applicant notes that all on-site options would require significant on-site shipment of spent fuel using the
.same mechanical procedures as off-site transshipment (i.e.,
loading and unloading of spent fuel casks-and shipment by trucks).
(Applicant Exhibits 30 at p.
3 and 31;.Tr. 749-51 and 4761).
1
.i regard to reracking-oconee Unit 3 pool with poison racks, Applicant intends to pursue this action.
However, a number i
of the spent fuel assemblies presently contained in the Unit 3 pool would have to be shipped off-site commencing in the 1981-1982 time frame to. accommodate such reracking.
l (Applicant's Exhibit 30 at p.
2-3; Staff Exhibit 36 at p.
4; Tr. 468-9).
Thus, the only technologically feasible alter-native available to Applicant, other than those involving off-site transshipment as requested here, is the censtruction of an on-site ISFSI.
Applicant notes that this option was thoroughly examined and not found to be the preferred.
alternative.
(e.g.,
Staff Exhibits 3 at pp. 50-52, 13 at p.
. 2, : 19B a t pp.
6-7, and 27A; Applicant Exhibits 1, 2 at p.
18-1, 3-at p. 9, and 7 at attachment; NRDC Exhibit 10: Tr.
1095-1127, 1126-33, and 2859-62).
B. NRDC Fails To' Justify The Erroneous Conclusion That A Broader Environmental Assessment Is Recuired Here.
.Two cases offered by NRDC merit further comment.
Neither.NRDC v.
Calloway, 524 F.2d 79 (7th Cir. 1975), nor Port of Astoria v.
Hodel, 595 F.2d 467 (9th Cir. 1979) support the NRDC position that an environmental assess-
. ment limited to transshipment:of 300 spent fuel assemblies from oconee to-McGuire is insufficient.
If anything these two cases, since-they' illustrate.the type of situation which.
does require an assessment-of action broader than.that contal'ned in the' precise proposal before the agency,. support applicant's position:that-its request'does not fall into any suchicategory.
. ~..
~
. In NRDC v. Calloway, supra, a Navy EIS evaluated a' single ocean dumping proposal.
The Court faulted the Navy for not considering other-proposals for dumping of additional polluted soil at the same or nearby sites.
The Court was able to specify with particularity the amount of polluted soil that the other projects would require be dumped (524-F.2d at 87).
,In Port of Astoria v.
Hodel, supra, the Court required an EIS on phase 2 of a Bonneville Power Administra-tion. program at the time of a phase 1 contract approval.
The Court's c' inion-makes clear that the " phase 2" at issue p
there was far more particularized and concrete than the later stage transshipment possibilities at issue here (595
~
F.2d at 477-78):
The record shows that Phase 2 is a regional-proposal for development and distribution of power resources in BPA's marketing region.
The coursec of action to be-folicwed under Phase 2 was outlined in a document entitled " Hydro Thermal Phase 2" attached to a BPA press release of December 1973 and resulting from an agreement between BPA', its direct-service industrial cus-tomers and the public, cooperative, and. investor-owned utilities in BPA's region.
(Emphasis added.)
In deciding whether'a broader study must be undertaken,-the. key factors to consider are the degree of-likelihood of occurrence of-the additional phase and the interrelatedness'of reasonably. anticipated environmental impacts.
Unlike'the other(clearly defined dumping proposals i
e m-
,a
. 1 pending in Calloway and the power development and sales agreed upon in Port of Astoria, the potential for additional transshipments here can only be described as speculative, even assuming arguendo that same Duke employees had a broader plan in mind.
Again, unlike the impact of other major dumping operations in the same area which, but for receipt of a license, would be in operation (Calloway) or additional power sales to be integrated into BPA's development plans (Port of Astoria) there is no interrelatedness or synergistic effect between the insignificant impacts reasonably anticipated from shipping 300 assemblies from Oconee to McGuire in the early 1980's and any future shipments.
5/
In short, the situation here is so far removed from the situation in Calloway and Port of Astoria that, by implication, those cases support the conclusion that the environmental assessment here is properly limited to the 300 transshipments requested.
C. To The Extent The NRC Staff Had An Obligation Under Section 102(2)(E) Of NEPA To Consider Alternatives To The Proposed Transshipment Plan, Such Obligation Was Fully Satisfied.
NRDC alleges that Section 102(2)(E) of NEPA requires the Staff to consider alternatives to the proposed transshipment plan The Staff, of course, gave con-sideration in the EIA to alternatives to the 300 trans-
-5/
Applicant notes that with respect to Oconee spent fuel, if the proposed action is implemented and the reracking of Unit No. 3 is completed, there will not be a need for further spent fuel storage actions until 1991.
shipments which Applicant requested.
We have demonstrated in our initial brief the scope of environmental review required here and responded to arguments that 102(2)(C) requires assessment of a " cascade plan."
Section lO2(2)(E) adds nothing pertinent to that discussion because that section is applicable only where ".
. conflicts concerning alternative uses of' available resources" are at issue. 6/
.No such conflict over competing uses of any available
- resources is present here.
D.
NRDC Has Not Justified The Zero Risk Standard Utilized By The Board.
In its Initi,al Brief Applicant pointed out that the Licensing Board's Initial Decision rested in major part upon'that Board's belief that Applicant had not established that accidents _or sabotage "could not occur."- Applicant pointed out that the Board's use of such a zero risk-standard was erroneous.
NRDC attempts to salvage the Licensing Board's position by arguing, in effect, that.the Board did not mean what-it said.
Thus, NRDC-claims (NRDC Br'.
p.
54) that, despite the language of the initia11 decision,
. 6/ -Senator: Jackson described this. provision:
Wherever agencies of the. Federal Government
' recommend ' courses of action: which are known to involve unresolved conflicts over competing-and incompatible uses of land, water,.or air
. resources, it shall be the agency'~s responsi-bility to study...' alternatives.
[S17455, Cong '~. Rec., ~ Dec. -20, 1969.-]
. the Board did not establish a requirement that Applicant demonstrate the existence of zero risk in order for its proposed action to be licensed.
According to NRDC, the Board was simply comparing alternatives, and since there were residual risks associated with transshipment which risks, according to the Board, were not associated with some of the alternatives, the application had to be denied.
NRDC's argument misses the mark. Applicant's discussion of residual risk in its Initial Brief assumes such can be a proper consideration under NEPA's assessment of alternatives.
Accordingly, the point NRDC attempts to make has been recognized by Applicant and fully addressed in its Initial Brief.
E.
The Practical Impact of The Licensing Board's Decieion:
In deciding this case it is critical that the Appeal ~ Board fully appreciate the true implications of the Licensing Board's decision.
While it may not be readily apparent, the' Board is actually telling Applicant that-it shall construct an on-site ISFSI at Oconee or shut down the Oconee units.
If the Board's analvsis is universally adopted, a similar. ultimatum may well apply to other reactor operators.
That this is the true meaning of the Licensing Board's decision may be readily demonstrated.
The Licensing Board lists the alternatives to Duke's proposed action under the headings of 1) reracking spent fuel pools and 2) an independent spent fuel storage installation. 7/
First, the weight that the Board gives to residual risks associated with transshipment, in conjunction with its denial of the license application here, effectively eliminates transshipment as an alternative.
Second, the alternative of maximum reracking is simply no longer available to Applicant.
Applicant has already undertaken the reracking of Oconee Units 1 and 2 pool with poison racks and this will be completed by March-April 1981.
Applicant has indicated that it intends to rerack Unit 3 with poison racks.
Hence, to the extent that the Board's decision denying the license application rests upon its view of maximum reracking as a viable alternative, maximum reracking is simply no longer an " alternative" to the. proposed action.
Finally, to the extent that "lSFSI" constitutes an " alternative," any off-site ISFSI would involve the same residual risks inherent in_the transshipment to McGuire which the Board has already found unacceptable.
7/
_I.D.
pp. 52-57.
At one point the I.D.
mentions pin-
" compaction (p. 53), but does not discuss this item further.
1Nue NRDC in its Brief lists the alternatives as;high density reracking; poison racking; on-site additional pool; or.ISFSI (NRDC Br. p. 1).
i1*
e c,
. 4 In short the current uncertainty and the rapidly evolving nature of the spent fuel storage issua 8/ make it singularly inappropriate to require Applicant to commit to a 1980 solution (i.e. construction of an on-site ISFSI) 9/ to Applicant's spent fuel storage needs for Oconee.
The Licen.*ing Board's decision, in requiring an on-site ISFSI at Oconee, e ffectively forecloses alternatives.
Applicant's transshipment request, if granted, would maintain flexi-
~bility. Under the present factual setting the proposed transshipment would provide Oconee with adequate storage I
through 1988 and coupled with the reracking of Oconee Unit 3,
through 1991.
The potential for further technological advances and for government or private concerted action on the spent fuel ~ storage problem within this time frame, makes the Board's ultimatum to build an on-site ISFSI at Oconee a particularly inappropriate result of its decision.
t 1
8/
The spent fuel storage pro 61em for the nuclear industry first arose in the 1975-76 time frame.
Since that time numerous ~ transshipment advancements have been made.and'others_are currently being explored (e.g.,
.high density racks, poison racks, caisson burial,'
, x
. pin compactors, dry' storage, construction.of ISFSI storage,-and government away from reactor storage facilities). (Tr. 409-19,.2685, :105,'2771).
It'.is reasonable to assume that additional _ technological advancements-will be forthcoming in the near future.
~9/
The' record reflects that if an ISFSI is to be pursued
~
such must begin now (See Staff ~ Exhibit 36).
,n n
,.n-r
-A 12 -
III. Conclusion The exceptions applied for should be granted.
The decision of the Licensing Board should be reversed and the requested amendment to Applicant's license should be granted. 10/
Respectfully submitted, LQ $Of J. Michael McGarry, III DEBEVOISE & LIBERMAN Of Counsel:
William L.
Porter, Esq.
DUKE POWER COMPANY 10/ Applicant believes that oral argument in this proceeding is appropriate.
In this regard the counsel for. Applicant are currently engaged in an operating license evidentiary hearing and have an oral argument scheduled before this Board on another matter on April 1.
Applicant requests that oral argument be scheduled at any time after April 15.
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)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Reply Brief" dated February 24, 1981, in the captioned matter have been served upon the following by deposit in the United States mail this 24th day of February, 1981.
Alan S.
Rosenthal, Esq.
Dr. Emmeth A.
Luebke Chairman Atomic Safety and Licensing Atomic _ Safety and Licensing Board Appeal Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Cadet H.
Hand, Jr.
Dr. John H.
Buck Director Atomic Safety and Licensing Bodega Marine Laboratory Appeal Board of California U.S.
Nuclear Regulatory
- ?ost Office Box 247 Commission
. Bodega Bay, Calforniia 94923 l
Washington, D.C.
20555 Jesse L.
Riley i
Richard S.
Salzman, Esq.
President Atomic Safety and Licensing Carolina Environmental Appeal Board Study Group
-U.S.
Nuclear Regulatory 854'Henley Place i
Commission Charlotte, North Carolina 28207 Washington, D.C.
20555
. l Marshall E.
Miller Edward G.
Ketchen, Esq.
Chairman Counsel for NRC Regulatory Atomic Safety and Licensing Staff 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 Richard P. Wilson, Esq.
Assistant Attorney General Chairman State of South Carolina Atomic Safety and Licensing 2600 Bull Street Appeal Board Columbia, South Carolina 29201 U.S.
Nuclear Regulatory Commission David S.
Fleischaker, Esq.
Washington, D.C.
20555 Natural Resources Defense Council William L.
Porter, Esq.
1735 Eye Street, N.W.
Associate General Counsel Suite 709 Duke Power Company
. ashington, D.C.
20006 Post Office Box 33189 W
3 Charlotte, North Carolina 28242 Chairman Atomic Safety and_ Licensing Chase R.
Stephens Board Panel Docketing and Service U.S. Nuclear Regulatory Section Commission' U.S.
Nuclear Regulatory Washington,D.C. '20555 Commission Washington, D.C.
20555 (LLy d,j J." Michael McGarry, III 6