ML20010B285
| ML20010B285 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 08/10/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-651, LBP-80-28, NUDOCS 8108140322 | |
| Download: ML20010B285 (30) | |
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J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0[
AUG 10198l, 3 ATOMIC SAFETY AND LICENSING APPEAL BOARD Office of the Secretary 0;detin & Seg;g, 3
ro I'UCD Admialstrative Judges:
N Alan S.
Rosenthal, Chairman EDjjgjgyy N i Dr. John H. Buck Richard S. Salzman*
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In the Matter of
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i, DUKE POWER COMPANY DocketNo.f 2
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(Amendment to Materials License SNM-
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1773 -- Transportation of Spent
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Fuel from Oconee Nuclear Station for) 5 Storage at McGuire Nuclear Station) )
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Mr.
J. Michael McGarry, III (with whom Messrs. Ma Philips, Jr., Washington, D.C.
and William L._ Porter, Charlotte, North Carolina, were on the brief) for Duke Power Company, applicant.
Ms. Ellyn R. Weiss (with whom Messrs. William S. Jordan, III, and S. Jacob Scherr, Washington, D.C., were Lee L. BishJo,
on the bri'ef) for Natural Resources Defense Council, intervenor.
Mr. Jesse L.
Riley, Charlotte, North Carolina, for Carolina Environmental Study Group, intervenor.
Mr. Leonard M. Trosten, Ms. M.
Reamy 7.ncarrow, and Mr. Michael F.
McBride, Washington, D.C.,
filed a brief on behalf of Electric Utility Companies Nuclear. Transportation Group, amicus curiae.
i Mr. Stephen M.
Schinki>(Messrs. Edward G. 9 tchen, Richard K.
Hoefling, and Bruce A. Berson on_the brici) for the Nuclear Regulatory Commission staff.
N s
--*/
Mr. Salzman participated in the consideration and~ disposition / I.
of these appeals.
Prior to his resignation from the Appeal bO.
Panel as of July 19, 1981, he reviewed a preliminary draft of the Board's opinion and noted his agreement with the result reached therein.
He was not available, however, to review the substantially revised final version of the opinion and, in the circumstances, should be deemed to have concurred'in the re-sult alone, g
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QB140322810sto-ADOCK 07002623i C
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. DECISION August 10, 1981 (ALAB-651)
On October 31, 1980, the Licensing Board issued an initial decision 1I on the application of the Duke Power Company for a license amendment which would permit it to receive and store at its McGuire Nuclear Station 300 spent fuel assemblies generated at its Oconee Nuclear Station.
If approved, the amendment would also allow the transportation of those assemblies to the McGuire facility so long as the packaging requirements of 10 CFR 71.12 are met.
Prior to the hearing, the NRC staff had undertaken an environmental analysis of the sought license amend-ment (including the impact of transporting the spent fuel over the highways between the two facilities) which led it to determine that the proposed activities would be without significant environ-mental effect.
The Licensing Board decided, however, that the analysis did not comply with the requirements of the National Environmental Policy Act of 1969 (NEPA).
It further concluded that the grant of the amendment would be inimical to the public health and safety.
The Board therefore denied the application.
_1/
_2/
More particularly, the application, dated' March'9, 1979, seeks an amendment to Special Nuclear Materials Licc,nse SNM-4773 issued to the Duke Power Company by the Commission purruant to 10 CFR Part 70.
That licensa now authorizes Duke to store new, unirradiated nuclear fuel at its McGuire Nuclear Power Station, a facility not yet in full operation.
Duke initially sought a license amendment to cover 400 Oconee spent fuel assemblies.
The staff thereafter proposed a limit of 300 spent fuel assemblies, to which the applicant agreed.
(
o Both the applicant and the staff have appealed from the decision below.
The intervenors, Natural Resources Defense Council (NRDC) and the Carolina Environmental Study Group (CESG), urge af firmance.
In addition, the Electric Utility Companies Nuclear Transportation Group (NTG) has filed a brief amicus curiae challenging the Iicensing Board's adverse en-vironmental and safety findings relating to the transportacion of the spent fuel.
For the reasons explained below, we reversa the decision of the Licensing Board and authorize the grant of the sought license amendment.
I.
NEPA CONSIDERATIONS Section 102 (2) (C) of NEPA requires all agencies of the Federal Government to prepare detailed environmental statements inter alia, major federal actions significantly affqcting 1
on, the quality of the human environment. 3/
Pursuant to Commission
_3/
42 U.S.C.
4332 (2) (C).
More specifically, the agency must include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the
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responsible official on --
(FOOTNOTE CONTINUED ON NEXT PAGE)
. regulation, AI the staff performed an environmental review of the proposed license amendment to determine whether such a statement was necessary in this instance.
Upon that review, it issued an environmental impact appraisal (EIA), in which it concluded that a full environmental impact statement (EIS) was i
"not warranted" because "there will be no environmental impact significantly affecting the quality of human environment at-tributable to the proposed action."
In accordance with that conclusion, the staff published a " Negative Declaration" under 10 CFR 51.7. E!
3/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 4 (i) the environmental impact of the proposed
- action, (ii) any adverse environmental effects ';;hich cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term 1
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uses of man's environment and the main-tenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable com-mitments of resources which would be in-volved in the proposed action should it be implemented.
_4/
See 10 CFR 51. 5 (c) (1).
5/
43 Fed. Reg. 61057-58 (December 29, 1978).
.. On the basis of its evaluation of the evidence before it, however, the Licensing Board disagreed with that assess-ment.
It determined that the " issuance of.the license amend-ment and activity thereunder would significantly affect the quality of the human environment, and therefore Iwould] require
[ inter alia] the preparation of an environmental impact state-ment."
12 NRC au 517.
Additionally, the Board found that the
" Environmental Impact Appraisal and Negative Declaration [were]
improperly segmented and unduly limited in scope, inadequate in the consideration of reasonably predictable environmental im-pacts, and fail [ed] to properly evaluate and give weight to preferable alternatives, as required by NEPA and the Commission's Regulations."
Ibid.
We consider seriatim the undarpinnings of the Board's dis-satisfaction with the staff's environmental analysis.
A.l. The staff had conducted its environmental analysis in terms of a proposal to ship not more than 300 spent fuel assemblies from Oconee to McGuire.
But the Licensing Board found that those shipments would be but one part of a so-called
" Cascade Plan" -- a "first step in a plan or program to ship excess spent fuel from older nuclear reactors in Duke's system to newer reactors."
Id. at 469.
In carrying out this " Cascade Plan", according to the Board, the applicant "would move fuel
. from an operating reactor to another reactor storage pool and upon perhaps filling of that, on to the next pool."
Ibid.
Likening the plan to "a game of musical chairs, which goes on and on until the government develops and provides nuclear waste storage facilities" (pl. at 476), the Board reasoned i
that compliance with NEPA required an assessment of the en-vironmental impact of the " Cascade Plan" (ibid. ), and not, as the staff had done, of a single series of spent fuel ship-ments from Oconee to McGuire for storage at the latter facility.
On the appeal, the applicant (supported by the staff) disputes that the record below discloses the existence of any such long-range plan -- at least one to which the applicant it committed. 5/ It claims that a definite corporate plan exists only for the shipment of spent fuel from Oconee to McGuire and that past company consideration of other possible shipments of spent fuel (including further transshipment of the Oconee spent fuel from McGuire to its Catawba nuclear plant) was in the nature of contingency planning. 1/
It thus argues that the scope of the environmental inquiry conducted by the staff was properly limited to the shipment of the 300 spent fuel assemblies
_6/
Applicant's Br., p.
53; App. Tr. 15.
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_7/
Applicant's Br., p. 63.
. from Oconee to McGuire and storage at the latter facility.
It insists, moreover, that the staff ar.alysis satisfactorily demonstrates that that shipment and storage will not have a significant impact on the environment.
For its part, intervenor NRDC presses us to accept the Licensing Board's finding on the existence of the plan.
In its view, "[t]he evidence in this case establishes beyond question that Duke has a plan to ship spent fuel around its system at least from Oconee to McGuire to Catawba." E!
In short, there is a sharp difference of opinion among the parties on an issue of basic fact.
This is not too sur-prising.
0~.,tions addressed to previously-formulated inten-tions as to future courses of action are often the subject of murky evidence and thus difficult to answer with confidence.
l But in this instance, forttn'tely, it may not be necessary to come to grips with the matter of the e.'. tent of the applicant's l
commitment to the " Cascade Plan."
As the parties recognize, that matter is significant here only if the Licensing Board is right in its additional holding that, if it existed, the " Cascade i
8/
Id. at pp. 19-22.
_9/
NRDC Br., p. 18.
i t
. Plan" in its entirety had to be taken into account in the staff's environmental analysis.
Although on this issue, to which we now turn, the parties likewise are in disagreement, it is more readily suscepLible of resolution.
2.a. As above noted, NEPA requires the preparation of an environmental impact statement only in connection with major federal actions which can be expected to have a significant im-pact on the quality of the human environment.
Thus, the question is whether, as the Licensing Board apparently believed although it did not explicitly so find, the assumed " Cascade Plan" amounts to a proposal for federal action.
There can be no doubt that if a federal agency had partici-pated substantially in its development -- financially or other-wise -- the plan necessarily would have to be deemed a federal proposal for NEPA purposes.
As such, an environmental analysis of the full plan would have had to be conducted at this time no matter how much or little of the plan was being left for later implementation.
This is the teaching of a line of judicial decisions exemplified by Scientists' Institute for Public Infor-mation, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1085-93 (D.C. Cir. 1973).
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.. Here, however, the assumed plan was not devised by this or any other federal agency.
Nor was there any federal par-ticipation in its formulation.
If, as alleged, the applicant does indeed have a multi-step program for moving spent fuel among its facilities, that program is wholly of its own making.
Not only was there no federal involvement but, according to the Licensing Board,bS!-the applicant took pains to keep its inten-tions to itself.
Although the Board below did not focus upon it, this con-sideration weighs heavily in deciding whether the staff could properly confine its environmental analysis to the 300 spent fuel shipments for which the applicant now seeks federal approval.
In the instance of a segmented non-federal plan, NEPA does not impose an inflexible requirement that the entire plan receive an environmental assessment at the time that the first segment is put before a governmental agency for licensing action.
- Rather, it is settled that the agency may confine its scrutiny o the portion of the plan for which approval is sought so long as (1) that portion has independent utility; and (2) as a result, the approval does not foreclose the agency from later withholding approval of subsequent portions of the overall plan.
See e.g.,
10/
12 NRC at 471.
. Atlanta Coalition v. Atlanta Regional Commission, 599 F.2d 1333 (5th Cir. 1979); Swain v. Brinegar, 542 F.2d 364 (7th Cir. 1976);
Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir. 1976); Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974); Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973).
As summarized by the Eighth Circuit in Froehlke, 534 F.2d at 1297:
The courts have been presented with the issue of " segmentation" of impact statements in various contexts and we do not propose to atte et the impossible, namely, the enunciation o; t general rule that will cover all cases.
The crucial de-pendence is upon the facts before the court in the particular case sub judice.
Where it is found. that the project before the court is an essentially independent one, an EIS for that project alone has been found sufficient com-pl.iance with the act.
In such case there is no irretrievable commitment of resources beyond what is actually expended in an individual project.
b.
Albeit in a different context, the Licensing Board faced the question of the independent utility of the transfer of 300 spent fuel assemblies from Oconee to McGuire.11!
It found no such utility to attach to the " Cascade Plan
- as a 11/
In 1975, the Commission announced its intention to prepare a generic environmental impacc statement on spent fuel disposal.
Pending the completion of that generic statement, licensing action designed to ameliorate the consequences of a possible shortage of spent fuel storage capacit" was to b2 hased upon a weighing and balancing of five factors -- including thht of ihdepen-dent utility.
40 Fed. Reg. 42801, 42802 (September 16, 1975); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 269-70 (1979).
(FOOTNOTE CONTINUED ON NEXT PAGE)
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i... whole (and, thus by implication, to attach to any portion of it).
12 NRC at 479-84.
While not all of the Board's discussion of the point is fully clear to us, it would appear that central to its finding is the fact that the movement of spent fuel between the applicant's various facilities does not constitute a permanent solution to this applicant's waste storage problems.
In this connection, the Doatl observed that the removal of spent fuel assemblies from Oconee "is accomplished only at the expense of prematurely using up equivalent spent fuel storage space at the McGuire facilf'v.
This multiple transshipmcat process goes on and on, involving the premature using up of storage space 11/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The Final Generic Environmental Impact Statement on Handling and Storage of Spent' Light Water Power Reactor Fuel (NUREG 0575) was issued by the staff in August 1979.
At the time of the Licensing Board's decision in the present case, however, the Commission had not as yet acted on the statement.
Hence, that Board considered each factor.
12 NRC at 476-88.
On February 23, 1981, the Commission published a notice to the effect that the issuance of the GEIS " represents final Commission action with respect to that document" and that "the five-factor test.
is no longer appli-cable to proposed licensing actions relating to spent fuel handling and storage."
46' Fed. Reg. 14506, 14507.
In these circumstances, we need not decide whether the Board below correctly applied the factors.
Although we still must inquire into the matter of the independent utility of the sought license amendment, as discussed in the text it is for a discrete purpose.
7
. at Catawba and possibly the Perkins and Cherokee facilities as well."
Id. at 482-83.
Further, it noted that a " nuclear waste transportation and transshipment program" does not either (1) have "the independent utility of increases in or enlargement of the onsite storage capacity of reactor spent fuel pools" or (2)
" operate to reduce or eliminate radicactive waste."
Id. at 483.
This all may well be true.
But it scarcely follows from such considerations that the now-proposed Oconee to McGuire shipments would be devoid of inherent usefulness.
Nor is there any reason to conclude that, by authorizing those shipments, the Commission perforce would be foreclosing a rejection of a.y sub-sequent application to transport spent fuel assemblies from one Duke facility to another.
The introduction to the relatively recent generic envircn-mental impact statement on the handling and storage of spent fuel (see fn. 11, supra) reflects that the waste disposal problem con-fronting nuclear power plant operators stems from the limited storage capacity of on-site reactor spent fuel pools (taken in l
conjunction with the unavailability of offsite storage reposi-i tories).12/
As matters now. stand, when the exhaustion of that
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. capacity approaches the plant operator likely will have no more
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expansion of the spent fuel pool's storage l
than four choices:
12/
See also EIA, p. 1.
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- . capability by reracking or some other means; building of an independent spent fuel storage installation (ISFSI) either on-site or off-site; transportation of the spent fuel to another of its facilities; and shutdown of the plant for want of an ability to off-load the spent fuel then in the reactor Core.
In any particular case, not all of the first three alter-natives may be practicable.
For example, it may not be possible to enlarge further the capacity of the existing spent fuel pool (especially if it has previously been expanded).
Similarly, there may be timing or economic obstacles in the path of con-struction of an ISFSI.
And, obviously, an operator could not resort to the movement of the spent fuel between facilities unless it in fact had multiple nuclear plants and adequate un-used storage space at the receiving station.
But, where available, each of these alternatives has mani-fest independent utility.
Whether or not it provides a'long-term benefit, it most assuredly offers a significant near-term one.
If nothing else, it enables the reactor to remain in oper-
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ation.
This does not mean that an application for a. license amend-ment to allow, e.g., transportation between fa'cilities, must be invariably granted.
In common with any other proposal for handling j
. spent fuel beyond the existing capacity of the on-site pool, it must, inter alia, undergo and survive an environmental analysis.
The significance of the independent utility of a particular proposal is simply that, for NEPA purposes, the environmental analysis may be confined to that proposal.
It is equally apparent that the outcome of the license amendment application at hand portends nothing insofar as any future application of this or another plant operator is con-cerned.
Should Du), (pursuing the " Cascade Plan") seek at come future date permission to make further spent fuel ship-ments between its facilities, the request will have to receive a separate environmental assessment.
That assessment will not be influenced by, let alone turn upon, how the present appli-cation might have fared.
Rather, the initial inquiry will be into whether those further shipments will have a significant environiuental effect.
Should that question be answered affirma-tively, a full environmental impact statement will be required 4
in order to comply with the Section 102 (2) (C) mandate.
In that statement, the staff will, of course, have to identify and weigh the benefits and costs of the proposal in the context of the l
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. overall waste disposal situation then obtaining.
In doing so, J
it might well conclude, upon a consideration of all factors, that the proposed additional shipments are an unacceptable solution.13/
13/
We are cognizant of the Licensing Board's suggestion that, by confining its environmental assessment to the 300 spent fuel assembly shipments, the staff may have overlooked " cumulative environmental impacts" which might be associated with the " Cascade Plan" as a whole.
12 NRC at 486.
Assuming the possible existence of such impacts, they would have to be considered when and if the applicant seeks permission to carry out another segment of the Plan.
The Licensing Board did not, however, illume what it thought to be potential cumu-lative effects of spent fuel movements over a period of time.
And, given our conclusion (see pp. 18-22, infra) that the 300 shipments hereinvolved (to taxe place over a relatively protracted period) will be without environmental significance, no basis existe for concern on this score.
)
The situation here is thus quite different from that in NRDC v. Callaway, 524 F.2d 79 (2nd Cir. 1975) which is claimed by NRDC to be "the case perhaps most directly on point" (Br. p. 20).
There, the Navy pro-posed to dredge a channel and to dump 2.8 million cu-bic yards of " highly polluted" material at a specific location in Long Island Sound.
The court held that, in its environmental impact statement, the Navy was obliged to evaluate the cumulative effects of that project and several other pending proposals for dumping similar material in the same general area.
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As the court pointed out, "[t]he combined spoil from these proposed projects and from the Navy's project totals appreximately 5 million cubic yards.
Were at all to be dumped within the next 5 years at the New London site the amount would far exceed the average of approximately 250,000 cubic yards. dumped there annually prior to 1972."
524 F.2d at 87.
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. B.
Having determined that the staff was under no NEPA obligation to consider the entire " Cascade Plan" in its en-vironmental assessment of the specific proposal before it, we proceed to the next question:
Was that assessment compre-hensive enough in scope and, if so, did it justify the con-clusion of the staff that the shipment and handling of the 300 spent fuel assemblies would not have significant environ-mental effects.
The staff was required by Commission regulation to include in its rnvironmental impact appraisal:
" (1) a description of the proposed action; (2) a summary description of the probable impacts of the proposed action on the environ-ment; and (3) the basis for the conclusion that no environmental impact statement need be prepared."
Examina-tion of the appraisal reflects that it covers the environmental effects of the various activities associated with the proposal.
In an analysis running some 100 pages, the staff, inter alia, looked at the McGuire site; the operation of the McGuire spent fuel storage facility; the motor carrier transportation of 300 spent fuel assemblies from Oconee to McGuire in special casks; the possible sabotage of spent fuel in transit; the likelihood and possible consequences of a transportation accident; and the 1
l handling of the transported fuel assemblies at' destination.
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.; As the Licensing Board saw it, the appraisal had several serious defects.
12 NRC at 517.
One of them -- the failure to consider the full " Cascade Plan" -- needs no further dis-cussion.
Nor, for reasons that will later appear, is there occasion to dwell at this juncture upon the Board's percep-l tion that the appraisal did not properly evaluate alternatives to the proposal.
Rather, what must be now scrutinized is the Board's view that the appraisal was " inadequate in [its) con-sideration of reasonably predictable environmental inpacts."
Ibid.1d/
1.
NEPA does not refer to environmental impact appraisals, let alone set forth detailed criteria by which the adequacy of a particular appraisal is to be judged.
Nor are such criteria found 14/
The Board also faulted the appraisal for failing to
" analyze and adequately consider" the "colitical and soc ial impacts" of the proposed shipments.
12 NRC at 493.
Contrary to that Board, however, we do not find any such duty to have been imposed upon the staff by the Commission's 1975 notice of intent to prepare a generic environmental impact statement on spent fuel storage (see fn. 11, supra).
Our reading of that notice is that the Commission intended such impacts to be " examined in a broader context" than individual licensing proceedings "from the standpoint of longer range policy."
42 Fed. Reg. at 42802.
At least this much is clear:
neither expressly nor by necessary implication did the Commission direct that, in analy-zing a particular spent fuel storage proposal, the staff take into account political or social 'implica-tions in addition to the effect implementation of the proposal would have upon the environment.
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. in the Commission regulation concerned with the content of EIAs.(10 CFR 51.7 (b) ).
As the District of Columbia Circuit has observed, however, the function of the appraisal is to supply " convincing reasons" why an action "with ' arguably' potentially significant environmental impacts does not re-quire a detailed impact statement."
Maryland-National Capital Park and Planning Comm'n v. U.S. Postal' Service, 487 F.2d 1029, 1039 (D.C. Cir. 1973, Leventhal, J.).
Thus, to pass muster the appraisal should (1) reflect that "a hard look -
(was taken) at the problem, as oppose?. to bald conclusions, unaided by preliminary investigation"; (2) " identify the re-levant areas of concern"; and (3)."make a convincing case that the impact is insignificant."
Id,. at 1040.
l 2.
Our independent review of the EIA at hand satisfies us that it fulfills these requirements insofar as (to use the j
phraseology of the~ Board below)Sb! the'" reasonably predictable environmental impacts" of the transportation of the 300 spent 4
' fuel assemblies are concerned.
In determining otherwise, the Licensing Board pointed to the possible environmental consequences of a vehicular accident or attempted sabotage involving the truck carrying the spent fuel.
12 NRC at 489-90; 497-99.
These contingencies were l_5/
See p.
5, supra.
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.. explored in the EIA, which concluded (at pp. 17-19, 33-37) that, should they materialize, there would not be a significant re-sultant environmental impact.
Accordingly, at bottom we are confronted with a difference of opinion between the staff and the Board as to th2 substantiality of the basis for that con-clusion.
The Board assumed that the 300 shipments would be made at the rate of 25 per month over a 12-month period.
Consequently, "every day for a six-day work week for a year, a large truck loaded with a spent fuel cask carrying radioactive materials will pass each house, building or establishment located on that high-way."16/
12 NRC at 489.
According to the Board, "such an un-usual concentration of shipments in a period of one year might or could intensify some'of the risks and problems associated with the transportation of high-level ra'licactive waste or spent fuel."
Id. at 490.
In this connection, the Poard pointed to the historical record of two reported highway accidents in 3,600 spent fuel shipments.
Employing these data, it found that there 4
was one chance in six of a highway accident in the course of the 300 shipments of current interest.
Id. at 490, fn. 117.
16/
These casks weigh about 25 tons and are 18 fpot in length (App. Exh. 29 at p. 1, Tr. 4342) and must te constructed to meet stringent Commission requirements.
See pp. 20-21, infra; EIA, pp. 16-17.
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. It is a fair inference that (apart from the perceived sabotage threat) it was solely this accident possibility which undergirded the Board's transportation concern.
(The Board found that the radiation exposure associated with " routine" transportation of the spent fuel would be so small as to.give rise to no unacceptable health effects.
12 NRC at 505-J9.)
But acceptance for present purposes of the Board's calculation regarding the degree of probability of an accident 11I does not perforce justify that concern.
The Board implicitly made the further assumption that the occurrence of an accident.was to be equated with the release of radioactive materials and, thus, with radiation exposure beyond that which attends upon uneventful transportation.
We are told by.the staff (Br. p. 30), howcVer, that neither of the two prior accidents produced any release of radioactive materials.
More significantly, as emphasized in the EIA (at pp. 16-17), spent fuel assemblies must be transported in specially designed and manufactured casks which offer a high
--~17/
Deedless to say, without knowing more about the circum-stances surrounding the-two reported accidents (including such factors as location and prevailing road and climatic conditions), it is difficult to assess the reliability of the premise that, on the cverage, 1800 spent, fuel ship-ments will produce one hignway accident.
1
_.-____.__._.__m_
.; degree of protection against the release of radioactivity in the event of an accident.18/
Specifically, the casks must comply with the stringent safety and other requirements which have already been prescribed by the Commission (10 CFR Parts 71 and 73).
Beyond that, spent fuel shipments must also com-ply with Department of Transportation requirements covering the packaging and movement of radioactive materials (49 CFR Parts 171-79).
Recently, that Department completed an exhaustive thirty-month study of the transportation of radioactive materials.bEI On the basis of this study, including documented risk studies and past accident experience for radioactive material trans-port, that ageray concluded that the public risks in trans-porting such materials by highway were too low to justify the unilateral imposition by local governments of total prohibitions or restrictionc upon motor carrier utilization.
At the same time, it confirmed that the packaging requirements were adequate 4
l to protect the public.20/
On the matter of the possible sabotage of a spent fuel shipment, for a variety of assigned reasons the EIA (at pp. 17-19) l l
found that it would be most difficult to breach the cask.
- Moreover, l
18/
EIA, pp. 33-37.
19/
46 Fed. Reg. 5298-99 (January 19, 1981).
i 20/
Id. at 5299.
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. a year ago the Commission imposed by rule new routing and physical security requirements on spent fuel shipments.
In doing so, the " Commission reaffirm [ed] its judgment that spent fuel can be shipped safely without constituting unreasonable risk to the health and safety of the public."21/
3.
In addition to focusing upon the environmental conse-quences of an untoward occurrence in the course of transporting the spent fuel assemblies, the Licensing Board addressed the possibility of an accidental drop of a cask during handling at the McGuire facility.
At that facility, fuel loading or unload-ing takes place in a specially constructed rectangular water-filled cask pit locatec. adjacer.' to the spent fuel pool.22/
The pit is separated from the pool by a 3-foot thick wall and is 9 feet wide measured from that wall (App. Exh. 27, Sketch #3).
In unloading operations, the 18-foot long cask is moved into the pit area by means of an overhead crane.
While over the pit (the crane is prevented by physical stops from moving beyond the pit to the area of the pool), the cask is lowered to the pit bottom where it is fully submerged.
The cask is opened and the fuel is then removed and transferred under water by a second crane into the pool through a slot in the wall between the pit and the
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21/
45 Fed. Reg. 37403 (June 3, 1980).
--22/
In the ensning discussion, the terms " pit" and " pool" refer, respectively, to the cask pit and the spent fuel storage pool.
4 f
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nn.-,,r.,.
m-.
. pool (Tr. 4319-20).
To assure that water will not be lost in the pool in the event of damage to the pit, the slot is blocked by a gate which can be opened to allow the passage of spent fuel (Final Safety Analysis Report, 3.8-27a. Revision 9).
During and after its removc1 from the cask, the spent fuel is always kept under water.
No one disputes that, if an accidentally dropped cask were to land in the pit, no health and safety or environmental conse-quences would ensue.
Intervenor CESG postulated, however, a series of events which it claimed might lead to the cask striking and rupturing fuel elements stored in the pool.
More specifically, according to CESG, a cask might (1) drop near the far side of the pit (the side away from the pool);. (2) strike the edge on that side; and (3) then topple over the 3-foot thick wall into the pool (CESG Exh. 13).23/
In response to this concern, the applicant presented evidence l
to the effect that, even were a dropped cask to strike the far l
side edge of the pit, it would not ulti;nately fall into the pool.
See 12 NRC at 510.
Nonetheless, to provide an additional measure of safety, the applicant proposed the establishment of 23/
Intervenor NRDC did not raise the cask drop issue below i
and has not taken a position on it before*us.
- Rather, it has oeen pressed throughout by CESG alone.
1 1
4-.
. certain administrative controls designed to remove any possibility of a dropped cask falling into the pool.
These controls would require the crane operator to follow a designated path in moving the cask in and out of the pit area.
That path would pass over the far side of the pit near its end so that, should the cask drop at that point, it would strike the corner formed by that side and the end side of the pit and, if it then toppled, would fall inward into the pit (App. Exh. 29, Sketch #4).
The staff agreed with this proposal and affirmatively stated that it'would be adopted as a license condition (Staff Exh. 33).
Neither CESG nor the Licensing Board has assigned any good reason -- and none is apparent -- why such a license condition (which we hereby direct be imposed) will not provide adequate assurance that a cask will not be accidentally dropped into the pool.21/
That being so, we find it unnecessary to dwell at length
--24/
CESG claimed below that it was "not certain" that the control over the path of crane travel would " provide a i
sufficient safeguard."
It argued that an " excess-of travel along the final portion of the proposed path i
l might reasonably be expected to deform the handrail" i
running along the far side of the pit " making a tipping l
accident possible."
CESG's Exh. 13, p. 5.
But our examination of the matter satisfies us that there is sufficient clearance between the cask (following the path) and the handrail that the cask will not come in contact with the handrail.
In the circumstapces, we l
do not understand how such a " tipping accident" -is possible.
See Exh. 29, Sketch #4.
i l
t l
I
\\
~
i
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. upon the Board's finding that such an occurrence might be expected to have serious consequences in terms of radioactive releases.
12 NRC at 513.
We are constrained to note, how-ever, our difficulty with that finding -- which seems plainly unsupported by the record.
As the Board appears to have recognized, the drop of a cask into the pool would not have a significant effect upon either facility personnel or the general public unless it gave rise to a " criticality accident."
Ibid.
Our attention has been called to no evidence which suggests that the rupture of spent fuel assemblies installed in the pool would produce criticality.
Even if (the staff's calculations to the contrary notwithstanding2g/)
criticality might result from the impact of a dropped cask on fresh fuel, the record establishes that such fuel is not normally stored in the pool during spent fuel transfer operations (Tr. 4777-78).
Moreover, for criticality to occur, in all events the concentration of baron in the pool i
would have to fall "significantly" below specified limits.
12 NRC at 512-13.
At Oconee, where the concentration level must be checked at least twice weekly, the limits have always been met (Tr. 5081-82).
The McGuire pool is similar to that at Oconee (Tr. 5082) and presumably is subject to the same boron surveillance practices.
25/
See 12 NRC at 512.
.1
. In sum, the disclosures of record, many of which are cited.in the Licensing Board's decision, compel the finding i
that there is a vanishingly small possibility of a cask drop accident with consequential environmental impact.2j/
4.
In reaching its conclusion that the preparation of a full environmental impact statement was unnecessary, the EIA thus did not overlook any " reasonably predictable environmental impacts" associated with the proposed transfer of 300 spent fuel assemblies between the two facilities.
The short of the matter is that (1) if carried out without incident, that transfer will have (as the Licensing Board itself recognized) negligible en-vironmental effects;21/ and (2) the possibility of an untoward event at any point in the course of the transfer with accompanying serious environmental consequences is extremely remote.
l
-~2E/
For the purposes of this discussion, we have accepted the Licensing Board's apparent implicit assumption (without l
explanation of its basis) that there is a reasonable pos-sibility that a cask will be accidentally dropped. ; In actuality, however, that assumption is questionable.
The crane's load capacity is 125 tons (almost five times the weight of a filled cask) and its cable and mechanical com-l ponents (e.g., gears) are designed to withstand five times that load capacity (Tr. 4342).
In that circumstance, the I
likelihood of a cask breaking free from the crane would appear slight indeed.
27/
Before us, NRDC counsel had this to say on the matter:
"I don't believe, and I don't contend that this. record establishes that there is any substantial environmental impact associated with 300 shipments of spent fuel assem-blies."
App. Tr. 84.
... It is beyond dispute that an environmental impact statement need not consider " remote and highly speculative consequences."
See e.g.,
Trout Unlimited v. Morton, supra, 509 F.2d at 1283, quoted in Public Service Electric and Gas Co. (H' 7e Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 38 (1979).
It perforce follows that asserted consequences of that stripe do not trigger the obligation to prepare an EIS.
It also follows from the absence of any " reasonably pre-dictable environmental impacts" that we need not pass judgment here upon the Licensing Board's discussion of alternatives to the spent fuel transfer proposal.
On.this score, our decision in the 8/
Trojan opent fuel pool expansion proceeding is directly in point.
We there expressly held that neither Section 102(2) (C) nor Section 102 (2) (E) S! of NEPA obligates the federal agency "to search out possible alternatives to a course which itself will not either harm the environment or bring into serious question 28/
Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-531, 9 NRC 263 (1979).
29/
42 U.S.C.
4332 (2) (E).
That Section directs federal agencies l
to " study, develop, and describe appropriate alte natives to
~~
recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."
l t
e l
l l
L
. the manner in which this country's resources are being expended."
9 NRC at 266.
Accord, Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 457-58 (1980);'Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC fn. 33 (July 17, 1981).
To our mind, it simply cannot be seriously contended that the transportation by motor carrier of 300 spent fuel assemblies over the 170-mile distance separ-ating Oconee and McGuire presents a substantial national re-sources commitment question.
II.
ATOMIC ENERGY ACT CONSIDERATIONS In addition to rejecting the requested license amendment on NEPA grounds, the Licensing Board made these ultimate safety findings:
I l
1.
There is not a reasonable assurance that the l
activities authorized or encompassed by the license amendment can be conducted without endangering the health and safety of the public.
l' 2.
The issuance of the license amendment could be inimical to the health and safety of the public.
12 NRC at 516.
Regretably, however, the Board did not indicate precisely on what foundation those findings reste'd.
l
, We have previously stressed the importance that initial decisions explicate the basis for each crucial determination contained therein.
See e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 41 (1977).
Where this has not been done, it is open to us to remand the cause to the Licensing Board to enable it to provide the missing explanation.
But here it is not necessary to pursue that course.
To repeat what has previously been said, the Licensing Board did not find (and no one claims before us) that the un-eventful transfer of the spent fuel assemblies from Oconee to McGuire would pose a radiological health and safety threat to the public.
Thus, the Board must have had in mind the several accident and sabotage possibilities which we have already ad-dressed.
But, as has been seen, it is extraordinarily impro-bable that any of the postulated unusual occurrences would have a significant radiological effect.
This being so, none of them can serve to support a determination that the safety standards of the Atomic Energy Act and the Commission's implementing regu-lations will not be met.
See Sections 104d and 182a of the t
4
r
'o
. ~
30 -
Atomic Energy Act, 42 U.S.C.
2134 (d) and 2232(a); 10 CFR
- 70. 31.(d). 32,/
For the reasons above stated, the Licensing Board's October 31, 1980 initial decision is' reversed.
The Director of Nuclear Reactor Regulation is authorized to issue the li-cense amendment in question, subject to the imposition of the condition referred to at p.
24, supra.
It is so ORDERED.
FOR THE APPEAL BOARD c..% ixa C.
Je Bishop T
Secret ry to the Appeal Board l
--30/
NRC licensees are required to "make every reasonabl'e effort to maintain radiation exposures, and releases of radioactive materials in effluents to unrestricted areas, as low as is reasonably achievable."
10 CFR 20.l(c).
The Licensing Board read this requirement to mandate a compari-son of the radiation exposure associated with the spent fuel transfer proposal at bar with that which would attend upon alternative means of handling and storing such fuel.
12 NRC at 501.
Although the comparison then made by the Board did not enure to the disadvantage of its proposal (id. ht 5 03 )',
the appli-I cant nevertheless asks us (Br. p. 121T~te hold that the i
Board below misconstrued Section 20.l(c) and that, in the present circumstances, it was not necessary to examine the radiological effects of alternatives.
We decline, however, to render what would be casentially an advisory opinion on that question.
There will be time enough to reach it when and if it arises in a non-academic context.