ML20031F308
| ML20031F308 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 10/13/1981 |
| From: | Dignan T, Gad R Maine Yankee, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8110190517 | |
| Download: ML20031F308 (16) | |
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'81 UNITED STATES OF AMERICA ryrTE OF SECRETARY NUCLEAR REGULATORY COMMISSION C ;ri i O G ^ ff R' C C L,
._.6 before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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MAINE YANKEE ATOMIC POWER COMPANY
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Docket No. 50-309-OLA
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(Spent Fuel Compa M (Maine Yankee Atomic Power Station)
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T1 O I98Ih APPLICANT'S RESPONSE TO THE "INTERVENOR'S SPECIFIC
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CONTENTIONS" 0F SMP 7
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Pursuant to the Preliminary Conference Order herein SMP has filed revised contentions.
Herein, as also contemplated by that order, are the Applicant's responses thereto.
Contention No. 1 Contention 1 is a contention that an EIS should be prepared.
Insofar as that general contention is concerned Applicants say that this contention should be excluded as a matter of law.
Applicant readily concedes that this rule has yet to be adopted in any adjudicatory decision in the NRC.
- However, its adoption is long overdue.
On March 31, 1981, an Appeal g#1 4 6\\\\
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Ecard noted the fact that to date no spent fuel pool expansion at any facility had been found to' be a major federal action.
Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 324 (1981).
Nor has such a finding entered in any proceedings since.1 In addition, the Commission has issued NUREG-0575 the Generic Environmental Statement on Handling and Storage of Spent Light Water Reactor Fuels which leaves open only " specific environmental and safety issues for individual licensing action".
46 Fed. Reg. 14507 (Feb. 27, 1981).2 The Commission's Rules of Practice permit this Board to take official notice, inter alia, "of any technical or scientific fact within the knowledge of the Commission as an expert body".
10 CFR $ 2.743(1).
We submit that after at least 39 out of 39 applications for spent fuel pool expansion have been approved with a finding that the environmental impact "was negligible", note 1, supra, one can safely say it is a
" technical or scientific fact within the knowledge of the Commission as an expert body" that expanding the capacity of 1As of August, 1979, 39 expansion applications had been approved and in each case it was found that the environmental impact "was negligible" NUREG-0575 at ES-5.
2The fact that an LWR spent fuel pool expansion produces only negligible environmental impacts is not surprising, but rather is exactly what one ought to expect on a priori analysis.
A spent fuel pool expansion involves three categories of work:
(1) existing fuel racks are replaced with new fuel racks, ;
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a spent fuel pool has a negligible environmental impact.
To require this fact to be relitigated for ar.other 100 applications may assure full employment for the nuclear tar, but it is difficult to see any other legitimate purpose that would be served.
And if it be a fact that the difference in the environmental impact of the pool as expanded is negligible as compared to the pool as it now exists,3 then it follows as night follows day-that the proposed action (whether or not "maj or") is not one which is "significantly affecting the quality of the human environment."
NEPA $ 102(2)(C).
And if that is so, no EIS is required.
(2) the spent fuel assemblies already in the pool are mcVed from one rack to another, and (3) additional fuel is added to the pool, leading, presumably, to a larger spent fuel inventory than what might otherwise be expected to occur.
The first two items are not qualitatively different than operations that already routinely occur in the operation of a spent fuel pool; the environmental impacts of handling spent fuel are well-known and are routinely minimal.
While the addition of fuel might be thought at first glande to be a fertile source of impacts, it must be remembered that the pool wa's originally designed to handle an inventory of relatively freshly-discharged fuel, and to deal with the impacts of freshly-discharged fuel.
The actual marginal significance of the enlargement is the existence of a larger inventory of older fuel, which, given the nature of spent LWR reactor fuel, presents the least of all impacts.
Thus, from the perspective of the technical and scientific realities of which this agency has its own expertise, the observation that a spent fuel pool expansion produces only negligible environmental impacts comes, not as a surprise, but rather as what is obvious.
3It is only this difference that must be assessed - not the effects attributable to the spent fuel pool itself.
Public Service Electric and Gas Co. (Salem Nuclear Generating Ste. tion, Unit 1), ALAB-650, 14 NRC
, 2 CCH Nuclear Reg. Rep. 1 ?0,608 at n.24 (July 17, 1981). -_
We are aware of no precedent that says that a Licensing Board may not utilize official notice in deciding the admissibility of contentions.
This is not an argument t. tat the Licensing Board should engage in deci g contentions on their merits at this junct>re.
See, e.g., Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980).
It is an argument to the effect that a Licensing Board need not allow a contention which requires the reinvention of the wheel in every licensing case.N We respectfully suggest that the Licensing Board should rulc that contentions to the effect that in EIS must be prepared in connection with license amendments to expand spent fuel pools should be excluded as a matter of law and that it should refer that ruling to the Appeal Board (and ultimately to the Commiscion) under 10 CFR $ 2 730(f).
At the very least, the Board should not admit the contention about a documented showing by SMP through a qualified authority that a genuine issue of fact exists as required by the Appeal Board in Philadelphia Electric Co. (Peach Bettom Atomic Power Station, (Units 2 and 3), ALAB-654, 14 NRC 2 CCH Nuclear Reg. Rep.
1 30,623 (Sept. 11, 1981).
Even if this Board declines the absolute ruling argued for above, SMP's EIS contention is still inadmissible.
On NNotning in Allens Creek would require, for example, the admission of a contention asserting (and dependent upon a finding that) the sun will rise in the west.
Such a contention must be rejected on the basis that the Board takes judicial notice that the sun rises in the east, in which case the contention fails as a matter of law.. - -
4 pages 4-5 of its submission, SMP sets out the environmental impacts it wants discussed in the EIS demanded.
A review of all these items (11(a)-(f) reveals that all seek discussion of the environmental effects of various accident (or abnormal operation) scenarios.
dEPA does not require a discussion of the environmental effects of the consequences of any accidents.
As stated by a Licensing Board almost nine years ago:
"NEFA does not require any discussicn of the consequences of accidents.
Section 102(2)(C)(1) of NEPA requires a discussion of 'the environmental impact of the proposed action'.
The ' proposed action' involved here is the generation of electricity from Point Beach Unit 2, a nuclear power Plant,not the having of nuclear accidents.
"182. NEPA Section 102(2)(C)(ii) requires discussion of 'any adverse environmental effects which cannot be avoided should the proposal be implemented'.
Nuclear accidents can be avoided.
"183 Thus, NEPA only requires a description of the possible adverse environmental effects which will result, assuming the Plant involved operates as intended.
The Board is aware of no Court decision which requf.res a detailed analysis of the consequencet of a proposed dam failing or a oridge collapsing."
Wisconsin Electric Power Co. (Point Beach Nuclear Plant Unit 2), LBP-72-32, 5 AEC 162, 202 (1972).
Finally SMP argues for an EIS on the ground that:
"Also favoring preparation of an Environmental Impact Statement is Applicant's proposed use of the spent fuel laydown area for storage of spent fuel, which use would diminish if not in fact negative Applicant's capability of preparing spent fuel for shipment offsite; last, a number of environmentally preferable alternatives exist, consideration of which is required by 42 USC $4332(2)(C)(iii)." _
To begin with the bold reference to "a number of environmentally preferable alternLuives" is insufficient.
The day is long passed where an intervenor is permitted to simply suggest the possibility of unspecified alternatives and require NRC to ferret them out.
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551-54 (1978); Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221 (1st Cir. 1979).
In addition we are uninstructed as to how use of the cask lay down area for full core rejection (not permanent storage) would negative shipment off site.
One simply puts the fuel back in the reactor vessel and then brings in the cask.
Contention No. 2 By contention No. 2, SMP attempts to litigste the issue of whether Applicant needs " pin compaction" or " cask lay down area" at this point.
There is no requirement in the law or regulations that the applicant demonstrate a "need" for a license amendment of this nature.
The contention is inadmissible.
Contention No. 3 By Contention No. 3, SMP seeks to raise the issue of whether the Applicant must at this juncture have detailed operating procedures for the proposal.
We are unadvised as to what regulation requires the level of detail sought and as a result the contention is too vague as. stated.
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Contention No. 4 Contention No. 4 seeks to raise a laundry list of alternatives.
The contention should be excluded.
No discussion of alternatives is required unless an EIS is to be prepared.
Second, as noted earlier, the environmental effects arising from fuel pool capacity expansion have 39 out of 39 times been found to be negligible; NRC has no obligation to explore alternatives unless they are environmentally superior.
Vircinia Electric a,nd Power Co. (North Anna Nuclear Power Station, Units 1 & 2),
ALAB-584, 11 NRC 451 (1980); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 162 (1978).
If the environmental effect of the proposed action is negligible, it is difficult to see how any case can be made that an alternative is essentially superior; and NRC has no obligation to try.
Duke Power Co. (Amendment to Materials License SNM-1773),
ALAB-651, 14 NRC
, 2 CCH Nuclear Reg. Rep. 1 30,613 (Aug. 10, 1981).
Third, it is to be noted that,the statement of bases does nothing more than list the alternatives which must be explored.
We are given no specific reasons as to why further inquiry is merited as to any or all of them in this case.
- Thus, there is no valid contention.
Vermont Yankee Nuclear Power Corcoration v. NRDC, 435 U.S. 519, 551-54 (1978); Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221 (1st Cir. 1979).
In particular, it also should be noted that alternatives (h) and (1) are attempts to relitigate the issue of whether it is acceptable for MYAPS to burn up 40 year's worth of fuel. ;
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I That was settled by issuance of the operating license and may not be relitigated here.
Portland General Electric Co.
(Troj an Nuclear Plant), ALAB-531, 9 NRC 263, 266 n.4 ~ (1979);
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 46 n.4 (1978).
Contention No. 5 This contention has already been admitted.
Contention No. 6a Contention No. 6a is:
"Neither Applicant nor Staff has adequately considered, analyzed or demonstrated that the liquid and gaseous radioactive emissions likely to result from the proposed d/r/c/
scheme, or adverse envircnmental effects from the same, will be kept within regulatory limits, including alara.
Harmful radioactive emissions most likely to occur are Iodine 131, Cesium 137, Strontium 90 and Tritium."
It is not clear what SMP is driving at here.
The Applicant submits that no basis is stated for the contention in any event.
If, as we suspect, SMP is attempting to raise the issue of compliance with release limits during normal operations, Applicant would not object to the following contention:
6a.
There is no reasonable assurance that normal operation of MYAPS with expanded fuel pool capacit r will be carried out in compliance with 10 CFR Part 20..
1 Contentions 6(b) and 6(c)
Contentions No. 6(b) and 6(c) read as follows:
"(b)
Neither Applicant nor Staff has adequately considered, analyzed or demonstrated that additional heat emissions likely to be discharged in the vicinity of the plant will be within regulatory limits, alara, or justifiable on a cost-benefit basis.
"(c)
These emissions are rendered more likely by the significantly increased handling and rehandling of spent fuel, the higher and denser concentrations of spent fuel handled, and the greater decay heat generated by the spent fuel as handled, stored and compacted under Applicant 's prope.ted amendments. "
No basis is supplied for the contention.
It is not clear what " heat" emissions we are talking about; "alara" has no applicability to heat; and there are no regulatory limits on heat emissions in any event.
Ac worded Contentions 6(b) and 6(c) are too vague to be admitted.
Contention No. 7 Contention No. 7 attempts to raise issues as to the
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operation of the spent fuel pool after the occurrence of a Class 9 accident.
Consideratior of Class 9 accidents and their effects is not a proper subject -for this proceeding.
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 537 (1980); Consumers Power Co. (Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117, 125, 130 (1980). -
Contention No. 8 Contention No. 8 reads as follows.
" Applicant has not adequately considered or analyzed the likelihood or consequences of a possible loss of cooling capacity or function in the spent fuel pool under the conditions presented by its proposed d/r/c scheme.
More particularly, Applicant has 1
not sufficiently considered or analyzed the effects of failures of one or more pumps, heat exchangers, transmission lines, or the loss of coolant.
Applicant has not sufficiently shown er analyzed the heat and radioactivity likely to be generated in such case, nor its capability to control the same wit.in regulatory limits."
To the extent that this cordention seeks to litigate the probability of accidents occurring which could reduce the effectiveness of spent fuel pool cooling it should be excluded.
Accident scenarios involving the integrity of the spent fuel pool itself were dealt with at the operating license stage and cannot be relitigated in a license amendment proceeding.
See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 46 n.4 (1978).
Accord Portland General Electric Co. (Troj an Nuclear Plant), ALAB-531, 9 NRC 263, 266 n.6 (1979).
To the extent that the contention seeks to raise the issue l
of whether the consequences of an accident assuming an f
expanded capacity of the spent fuel pool have.been analyzed sufficiently to permit the " reasonable assurance" and "not l
inimical" findings to be made, the contention should be admitted.
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Contention No. 9 By this contention SMP seeks to raise an issue of whether the design of the new schemes will result in " localized boiling".
We suggest a simplification and recording of this contention as follows:
"9 The design of the new racks will not preclude localized boiling."
Contention No. 10 We believe that Contention No. 10 is admissible but suggest that it be reworded as follows:
"10.
The d/r/c scheme will result in the failure of materials because of increased heat and radioactivity to the extent that there is no reasonable assurance that the public health and safety will not be endangered."
Contention No. 11 This is a long seismic contention which apparently seeks, inter alia, a reanalysis of MYAPS in its entirety to assure that it meets higher seismic criteria than the original design.
I That is not open to litigation in this proceeding.
The applicant is not required to do more than demonstrate that the pool with additional loading still conforms to MYAPS seismic criteria.
There is no requirement that any and all seismic disturbances including those greater than the design basis earthquake be accounted for as the contention apparently argues.
No objections would be raised to a contention worded: -
"The spent fuel pool will when fully loaded not comply with Class I seismic design criteria for MYAPS."
But that is not the contention made.
Contention No. 12 This contention seeks to raise the issue of the spent fuel pool's ability to withstand air crashes.
The safety of the spent fuel pool at Maine Yankee Atomic Power Station
("MYAPS") (and other safety class structures) vis-a-vis l
aircraft was settled at the 0.L. stage.
If SMP has a real argument that changes in the local airport's traffic dictate a resetting of the design criteria, SMP's proper method of proceeding is via 10 CFR $ 2.202 et, seq.
This contention is not a litigable issue in this proceeding.
Contention No. 13 Contention No. 13 seeks to raise the need for an analysis assuming the new capacity and configuration, of a fuel assembly
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and spent fuel shipping cask drop.
No spent fuel shipping casks will be used at MYAPS until off-site shipping is allowed.
An analysis will be done at that time to assure that the cask chosen does not present an unacceptable risk.
No objection is made to Contention No. 13 to the. extent it raises the question of the safety consequences of a fuel assemply drop. -
Contention No. 14
"(a)
Neither Staff nor Applicant has adequately considered or analyzed the long-term health, cafety and environmental effects of Applicant's proposed amendments with respect to such periods of time over wbich the spent fuel pool is likely to be used beyond the expiration of Applicant's operating 11cer.s e.
"(b)
Further, insofar as Applicant fails to consider the costs of such long-term operation and maintenance of the spent fuel pool beyond the expiration of its license, such failure invalidates all cost-benefit analyses relative to the proposed amendments."
The Appeal Board has squarely held that in a proceeding of this nature there should be no consideration of storage beyond the operating license period or ultimate disposal.
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC
, 2 CCH Nuclear Reg. Rep. 1 30,608 at Page 29,924 (July 17, 1981).
See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),
ALAB-455, 7 NRC 41, 51 (1978).
Contention 14(b) suffers from an additional defect.
This contention argues that the environmental cost / benefit balance for the operation of MYAPS should be restruck on account of supposedly unaccounted for economic costs.
However, the environmental cost / benefit calance matches environmental ecsts--
and not economic costs--against all benefits, including economic benefits.
NEPA may require a power plant--or any other project to which it is applied--to be " cleaner," but it affords.,
no warrant for contending that it must be cheaper.
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, 162-63 & nn. 21-25 (1978).
Contention No. 15 By Contention No. 15, SMP seeks to litigate the Applicant's financial qualifications.
Maine Yankee's financial qualifications to operate and decommission the plant and dispose of 40 years of fuel was settled at the 0.L. stage.
i See 10 CFR S 50.33(f).
They are not open to litigation here.
Consumers Power Co. (Big Rock Point Nuclear Plant), LBP-80-4, 11 NRC 117, 127 (1980).
Content,len No. 16 Contention No. 16 is:
"The Applicant has not demcnstrated that the irradiated nuclear fuel pool will not go critical, leading to a major release of radiation and radioactivity.
The health and safety of the public and plant workers is therefore not assured."
We believe this contention is admissible.
Contention No. 17 Contention No. 17 is:
"The Applicant has not shown that it is technically qualified to manage the proposed pin storage (pinpacking) operation in a manner which protects the public health and safety, as required by 10 CFR 50.34."
We believe this contention is admissible.. -.
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e Contention No. 18 By Contention No. 18 SMP seeks to raise an issue as to the adequacy of the MYAPS emergency plans.
The expansion of the spent fuel pool capacity has no nexus with emergency planning and evacuation.
If SMP wishes to challenge the adequacy of the evacuation plan the proper vehicle is a show cause proceeding.
The fact that one can argue that with more spent fuel on' site the radiological consequences of a given event might be greater, avails SMP nothing.
The new emergency planning regulations, 10 CFR 50, App.E are not consequence oriented; adequacy is judged only by the questions of whether the best practicable plan is in effect.
The 10 CFR 100 requirements are consequence oriented but they are confined to certain design basis accidents, the consequences of which greatly exceed any spent fuel pool oriented accident.
In short no evacuation issue is litigable herein.
CONCLUSION SMP Contentions Nos. 5, 16 and 17 should be admitted j
as stated; Nos. 6a, 9 and 10 are not objected to if reworded; j
Nos. 8 and 12 are possibly admissible in part as set forth in the text above; the balance of SMP's Contentions should be excluded.
Respectfully submitted, t
I l
Thomas G.
Dignan, Jr.
R. K. Gad III l
Thomas G.
Dignan, Jr.
R. K. Gad III Ropes & Gray 225 Frank 11r. Street Boston, MA 02110 (617) 423-6100 Counsel-for Applicant i L
CERTIFICATE 0F SERVICE I, Thomas G. Dignan, Jr., hereby certify that on October 13, 1981, I made service of the within document by mailing a copy thereof, postage prepaid, to:
Robert M. Lazo, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washinston, D.C.
20555 Dr. Cadet H. Hand, Jr.
Director, Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, California 94923 Administrative Judge Peter A. Morris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulacory Commission Washington, D.C.
20555 Henry J. McGurren, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dav_d Santee Miller, Esquire 213 Morgan Street, N.W.
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Washington, D.C.
20001 Rufus E. Brown, Esquire Deputy Attorney General Department of the Attorney General State House - Station #6 Augusta, Maine 04333 Thomas G. Dignan, Jr.
Thomas G.
Dignan, Jr.
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