ML20010C389
| ML20010C389 | |
| Person / Time | |
|---|---|
| Site: | Salem  |
| Issue date: | 08/18/1981 |
| From: | Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-650, NUDOCS 8108200039 | |
| Download: ML20010C389 (13) | |
Text
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Io BEFORE'THE COMMISSION In the Matter of
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Docket No. 50-272 PUBLIC SERVICE ELECTRIC &
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Proposed Issuance of Amendnent GAS COMPANY
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to Facility Operating License
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Janice E. Moore Counsel for NRC Staff-August 18, 1981 8108200039 810818 PDR ADOCK 05000272 G
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFOR_E THE COMMISSION In the Matter of Docket No. 50-272 PUBLIC SERVICE ELECTRIC &
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Proposed Issuance of Amendment GAS COMPANY
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to Facility Operating License
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No. DPR-70 (Salem Nuclear Generating
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Station, Unit No. 1)
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NRC STAFF RESPONSE TO PETITION OF THE TOWNSHIP 0F LOWER ALLOWAYS CREEK FOR COM!ilSSI_0N REVIEW 0F ALAB-650 I.
INTRODUCTION The Staff of the Nullear Regulatory Commission (Staff) hereby responds to the petition for Commission review of ALAB-650 filed by the Township of Lower Alloways Creek (TOLAC) on August 3,1981. The Staff opposes the granting of this petition for review on the ground that the petition fails to meet the requirements of 10 C.F.R. 5 2.786(b) of the Commission's regulations.
II.
SUMMARY
OF DECISION Jn July 17, 1981, the Atomic Safety and Licensing Appeal Board
( Appeal Board) issued its decision in this spent fuel pool capacity expansion proceeding.
Public Service Electric _ and _ Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-650, NRC
,(July 17, 1981).
In this decision the Appeal Board affirmed the decision of the
f Atomic Safety'and Licensing Board (Licensing Board), which was issued on October'27, 1980. Public Service Electric and Gas Company (Salem Nuclear.
Generating Station, Unit 1), LBP-80-27,12 NRC 436 (1980). The Appeal-
. Board'affirued the Licensing Board's decision authorizing the. issuance of the requested. license amendment. With regard to the exceptions filed by TOLAC, the Appeal Board found that:
1) the Licensing Board was justified in its determination that no further analysis of the question of propagation of oxidation to older fuel in the spent fuel pool was warranted, ALAB-650, supra, slip og. at 36; 2)
TOLAC.has not met its burden for reopening the record in this proceeding to require further evidence on the question of propagation, Id.; and 3) there was no basis for overturning the Licensing Board's finding that approval of the Salem spent fuel pool expansion is not a major action significantly affecting the environment.
Id. at 46.
Petitioner now claims that the Appeal Board erred in determining I
that TOLAC had not met its burden for reopening the record to require further evidence on the question of propagation of oxidation to fuel four 2
years old or older in the spent fuel pool.
"Intervenor, Township of Lower Alloway Creek's Petition in Support of Review of the Decision and Action of the Atc..:e Safety & Licensing Appeal Board (10 C.F.R. 2.786)"
at 3-5 (August 3, 1981) (hereinafter " Petition").
Petitioner also claims that the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (FGEIS) fails to ade-quately consider away-from-reactor storage as an alternative to at-reactor storage.
Petition at 7-10.
Neither of these claims constitutes an appropriate issue for Commission review.
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III. ARGl MENT A.
Petitioner Has Failed to Demonstrate Any Factual or Legal Error en the Part of the Appeal Board in its Decision Not to Reopen the Record in this Proceeding.
On appeal Petitioner TOLAC argued that the Licensing Board erred in denying TOLAC's motion for additional analysis on the question of whether oxidation could propagate from new fuel in the spent fuel pool to older spent fuel as the result of a gross loss of water accident.
"Intervenor, Township of Lower Alloways Creek's Brief In Support of Exceptions (10 C.F.R.
2.762)" at 1-2 (December 4,1980) (hereinafter "Brief on Exceptions").
In support of its argument, Petitioner relied on the case of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-284, 2 NRC 179 (1975), and on what it perceived to be the Licensing Board's disregard of the testimony of a Staff witness, Dr. Allan S. Benjamin, as support for its argument. _Id In this petition for Commission review, TOLAC merely reiterates these same arguments.
TULAC ignores.the Appeal Board's thorough discussion of the inapplicability of ALAB-284 to this spent fuel pool expansion proceeding.
ALAB-650, supra, slip op_. at 36 n. 30.
Petitioner makes no attempt to show in what way the Appeal Board erred in its treatment of ALAB-284.
TOIAC merely claims that the issue before the Appeal Board was a highly complex and technically difficult one.
Petition at 6-7.
The Appeal Board aakes it clear that the complexity of the technical issue presented in ALAB-284 was only one factor which warranted further evidentiary hearings. ALAB-650, supra, slip 02. at 36 n. 30. They pointed to
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additional special circumstances existing in that case which made the taking of further evidence in that case imperative.M etitioner has P
failed to address any of the special circumstances mentioned by the Appeal Board in ALAB-284.
Petitioner has not shown, therefore, where the Appeal Board's error lies with regard to its treatment of Petitioner's use of ALAB-284.
Petitioner's claim that the Appeal Board and Licensing Board ignored the testimony of Dr. Benjamin is also fatally flawed. Both Boards agree that there was ne real conflict in the testimony of Staff witnesses Pasedag and Benjain. LBP-80-27, s_upra,12 NRC at 454; ALAB-650, supra, slip o_g. at 30-31.E n saying that Dr. Benjamin's testimony has been I
ignored by the Appeal Board, Petitioner disregards that Board's discussion of Dr. Benjamin's testimony which appears in ALAB-650 at 30-33. The Appeal Board states "the testimony of a qualified witness calling for further analysis of any aspect of a pending proposal merits id,.at30. The Appeal Board went on to d
serious consideration."
The Appeal Board pointed out that in ALAB-284 the Appeal Board in that proceeding found further evidentiary hearings warranted because he evidence was inconsistent and' inadequate to support the Licens-Board's determination, because of the absence of reference to ut ivorable evidence and the existence of new evidence not considered by 3 Board below.
Id.
y As 10 3.F.R. 5 2.786(b)(4)(ii) points out, the Commission will not grant petitions for review on matters of fact unless it cppears that the Appeal Board has resolved a factual issue necessary to a decision in a clearly erroneous manner contrary to the resolution of that same issue by the Licensing Board.
No such conflict exists with regard to any of the factual issues presented in this case.
determine that, although information concerning propagation might be of academic interest, it was not necessary for decisional purposes in this proceeding due to the existence of other factors. H. at 31.E Petitioner makes no attempt to point to evidence of record in this proceeding which challenges the factual determinations supporting these factors.
In fact, Petitioner concedes that it may well be true that there will be no significant increases in radioactive releases from the older fuel when compared with fresh spent fuel in the pool.
Petition at 3-4.S
_3f These factors were:
1) the amount of radioactive releases likely to be associated with the oxidation; and 2) that the gross loss of water itself is a very unlikely event.
The Board pointed out with regard to the first of these factors that more research into the question of propagation would not provide any more information about the amount of radioactive releases associated with oxidation. ALAB-650, supra, at 31-33. With regard to the second factor the Appeal Board noted that no witness could describe a credible mechanism for the occurrence of such a gross loss of water.
Id. at 33.
y Petitioner merely argues that the environmental consequences of a gross loss of water accident must be considered because TMI was a Class 9 accident. Therefore, Petitioner's reasoning continues, all accidents are now reasonably probable.
Petition at 9.
This argument is without merit.
As the Appeal Board pointed out:
"NEPA, however, does not require consideration of circumstances that are 'only remote and speculative possibilities.'" (Citations omitted.) ALAB-650, supra, slip op_. at 35 n. 29.
Therefore, unless Petitioner makes a sufficient showing of a credible mechanism for the occurrence of a gross loss of water event, such an event need not be considered.
Petitioner has been unable to do so throughout this entire proceeding.
t l
Finally, TOLAC disputes the Appeal Board's view that it has a heavy burden to meet when attempting to have the record of a proceed-ing reopened. The Appeal Board stated that Petitioner's generalized assertions that more evidence is needed were not enough to meet Petitioner's " heavy burden" of showing that a propagation analysis would have made a relevant contribution to the resolution of the Licensing Board's question. ALAB-650, supra, slip op_. at 36.
The Appeal Board was applying the standard set forth in Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC 320 (1978). Aside from a general claim of error, Petitioner does not demonstrate why the Appeal Board erred in applying the Wolf Creek standard in this case.E Petitioner has not demonstrated that the Appeal Board's affirmance of the Licensing Board's factual determination that there is no credible mechanism for a gross loss of water from the spent fuel pool is clearly erroneous.
Petitioner has not satisfied 10 C.F.R. Q 2.786(b)(4)(ii) of the Commission's regulations and, therefore, the Appeal Board's factual determinations are not appropriate subjects for Commission review.
Since 5/
Petitioner merely complains that it is being treated unfairly by the Appeal Board in the Board's characterization of the testimony of its witnesses, a characterization agreed to by both the Licensing and Appeal Boards. ALAB-650, supra, slip og. at 32 n. 25.
Petitioner seems to be arguing that somehow his burden for ceeting the Wolf Creek standard should be lessened because it provided testimony in the proceeding. This argument is without merit. The strength of a party's case must be judged on its merits, and not on whether the party presented a direct case or chose to rely on cross-examination to make its points. The mere presentation of testimony is not sufficient to j
meet the burden discussed in Wolf Creek,_ supra.
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- the Petitioner has not demonstrated in what way the Appeal Board erred in its application of previous Appeal Board precedents to this proceeding, Petitioner has not satisfied 10 C.F.R. 9 2.786(b)(2)(iii) of the Commis-ston's regulations. Nor has Petitioner demonstrated the existence of an important legal issue meriting Commission review as required by 10 C.F.R.
52.786(b)(4)(1). This petition for review, therefore, presents no issues either of fact or law meriting Commission review.
B.
Petitioner Has Failed to Raise Any Environmental Issue Warranting Comnission Review.
In its exceptions to the Licensing Board's Initial Decision, Peticioner argued that the Licensing Board erred in finding that no environmental impact stvement (EIS) was required covering this spent fuel pool expansion. Brief on exceptions at 4.
As the Appeal Board noted, at oral argument Petitioner continued to assert that such an EIS was necessary, though Petitioner did not identify any reasons why this proposed spent fuel pool expansion was a major Federal action significantly affecting the quality of the human environment. ALAB-650, supra, slip 02. at 42.
Petitioner's argument seems now to have changed its character. The argument in its petition asserts that the Commission's Final Generic Environmental Impact Statement (NUREG-0575)E ails to adequately consider f
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Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (FGEIS) was issued in August l
of 1979.
The FGEIS was declared to be final agency action on February 27, 1981.
46 Fed. R_eg. 14506.
- away-from-reactor storage as an alternative to at-reactor storage.
Peti-tionat8.I Any attempt by Petitioner to challenge the adequacy of the FGEIS before the Commission in this proceeding is inappropriate. The FGEIS is not a part of the record in this proceeding. As the Appeal Board noted, the Licensing Board did not rely on the FGEIS as support for its findings. ALAB-650, supra, slip. og. at 45.
Petitioner neither points to a place where this argument was raised before the Licensing Board or the Appeal Board, nor does it give any reason why such an argument could not have been raised earlier. This portion of TOLAC's petition fails, therefore, to satisfy the requirements of 10 C.F.R.
6 2.786(b)(2)(ii) and must be denied.
Even if Petitioner were deemed to be asserting that an EIS must be prepared for this particular proposed spent fuel pool capacity expansion, TOLAC still fails to show any way in which the EIA prepared by the Staff was deficient. As the Appeal Board noted, TOLAC was given ample 7/
It should be noted that the alternative of storing spent fuel at an independent spent fuel storage installation was evaluated by the Licensing Board and discussed by the Appeal Board in this proceeding.
LBP-80-27, supra,12 NRC at 444-446; ALAB-650, supra, slip op, at 37-38. At no time during any of these considerations did Petitioner raire the idea of an EIS specifically covering the alternative of i
I away-from-reactor storage.
In addition, Petitioner does not now challenge the Appeal Board's affirmance of the Licensing Board's finding with respect to this alternative.
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opportunity to'do so. ALAB-650, supra, slip oy_. at 43-44. TOLAC makes no attempt to-demonstrate in'what way the Appeal Board erred in finding that there was no basis on this. record for overturning the Licensing' Board's finding that this proposed expansion was not a major Federal action significantly affecting the quality of the hu' man env_ironment and
-.thus no EIS was required.
Petitioner fails to identify any circumstances that make this proposed spent fuel pool modification proceeding any different from the many proceedings in which EIAs were upheld by both Licensing Boards and Appeal Boards.
Petitioner has made no factual or legal arguments as to why NEPA in this particular case would require the preparation of an environmental impact statement.E Moreover, it h:s not presented an important legal issue warranting Commission revier.
This petition, therefore, does not satisfy the requirements for Commis-sion review under 10 C.F.R. 55 2.786(b)(2)(iii) or 2.786(b)(4)(ii) and should be denied.
8f Petitioner accuses the Commission of having developed a " masterful strategy for avoiding the requirements of-NFM...."
Petition at 7.
This view seems to flow from Petitioner's thec7 that, as a matter of policy, the Commission has determined that no ' spent fuel pool expan-sion could have a significant impact on the environment. The Appeal Board.noted that it wat unaware of any such policy. ALAB-650, supra, slip o2, at 45 n. 39. This theory also ignores the Commission's own statement of policy issued in 1975.
Intent to Prepare Generic Environ-mental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, 40 Fed. gRe. 42801 (September 16,1975). That policy showed the Commission s awareness of the-possible need for an EIS if an individual expansion were determined to-be a major Federal action significantly affecting the quality of the human environment.
Id.
IV
' CONCLUSION For the reasons set forth above, TOLAC's petition should be denied on the ground that it does not satisfy -the requirements of 10 C.F.R.
56 2.786(b)(2) and 2.78S(b)(4) of the Commission's regulations. The petition does not raise any important matter that could significantly affect the environment 3r the public health and safety.does not raise an important procedural issue, and does not raise any important questions o; public policy.
Respectfully submitted, TNS$
Janice E. Moore Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of August,1981.
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UNITED STATES OF AMERICA-NUCLEAR REGULATORY C0:lillSSION
.BEFORE-THE COMMISSION
)g In the Hatter of
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PUBLIC SERVICE ELECTRIC &
J W ket No. 50-272 GAS COMPANY
)
Pr posed Issuance of Amendment s
to Facility Operating Licens'e 1
No. DPR-70 (Salem Nuclear Generating Station Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO PETITION OF THE TOWNSHIP 0F LOWER ALLOWAYS CREEK FOR COMMISSION REVIEW 0F ALAB-650 in the above-captioned proceeding have been served on the fol'owing by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal 15 ails system, this 18th day of August,1981.
- Christine N. Kohl, Chairman Gary L. Milhonnin, Esq., Chairman Atomic Safety and Licensing Administrative Judge Appeal Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 1815 Jefferson Street Washington, D. C.
20555 Madison, Wisconsin 53711
- Dr. W. Reed Johnson
- Mr. Frederick J. Shon Atomic Safety and Licensing Administrative Judge Atomic Safety and Licensing Board, Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. James C. Lamb, III
- Thomas S. Moore Atomic Safety and Licensing Administrative Judge 313 Woodhaven Road Appeal Board Panel U.S. Nuclear Regulatory Commission Chapel Hill, North Carolina 27514 Washington, D. C.
20555 Richard Fryling, Jr., Esq.
Assistant General Solicitor
- Mr. Samuel J. Chilk Public Service Electric and Secretary of the Commission U.S. Nuclear Regulatory Commission Gas Company Washington, D.'C.
20555 S0 Park Place Newark, New Jersey 07101
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E' '.
! Mark J. Wetterhahn, Esq.
Richard M. Hluchan, Esq.
Conner;& Wetterbahn Rebecca Fields, Esq.
1747 Pennsylvania Avenue, N.W.
Deputy Attorney General Suite 1050 State of New Jersey Washington, D. C.
20006 36 West State Street Trenton, New Jersey.08625 Carl Valore, Jr., Esq.
535 Tilton Road
- Leonard Bickwit, Esq.
Northfield,11. J.
08225 General Counsel U.S. Nuclear Regulatory Commission Lower Alloways Creek Township Washington, D. C.
20555 c/o Mary O. Henderson Municipal Building Hancock's Bridge, New Jersey 08038 June D. MacArtor, Esq.
Deputy Attorney General Mr. Alfred C. Coleman, Jr.
Tatnall Building Mrs. Eleanor G. Coleman P. O. Box 1401 35 "K" Drive Dover, Delaware 19901 Pennsville, New Jersey 08070
- Atomic Safety and Licensing Mr. Dale Bridenbaugh Board Panel M.H.B. Technical Associates U.S. Nuclear Regulatory Commission 1723 Hamilton Avenue Washington, D. C.
20555 Suite K San Jose, Califo nia 95125
- Atomic Safety and Licensing Appeal Board Panel
- Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretar;-
Washington, D. C.
20555 U.S.11uclear Regulatory Commission
' washington, D. C.
20555 Db$kMMO Janice E. Moore Counsel for NRC Staff 1
_.