ML20032A127
| ML20032A127 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 10/26/1981 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110280335 | |
| Download: ML20032A127 (25) | |
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10/26/81 UNITED STATES OF A?1 ERICA-NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
, ed &!l is In the Matter of
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MAINE YANKEE ATOMIC PGIER COMPANY liocket No. 50-309
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(Spent Fuel) h "OCU 71981h
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1 (Maine Yankee Atomic Power Station)).
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If NRC STAFF'S RESPONSE TO
' IW CONTENTIONS FILED BY THE STATE OF MAINE I.
INTRODUCTION On October 5,1981, pursuant to this Board's Prehearing Conference Order dated August 24, 1981, as amended by Order of September 15, 1981, the State of Maine, by its Attorney General, filed its revised contentions in a document entitled " Amended Contentions of the State of Maine." The NRC Staff's position with regard to the sdmissibility of these contentions is set forth below.
II.
CONTENTIONS REQUIREMENTS As a general matter, for the contentions proposed to be admissible, they must fall within the scope of the issues set forth in the Federal Register Notice of Hearing (Nej.:ce of Hearing) (See Publ.ic Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Uni _ts 1 and 2),
ALAB-316, 3 NRC 167, 171 (1976)) in this proceeding, 44 Fed. Reg. 61273 (October 24,1979) and 46 Fed. Reg. 9315 (January 28,1981), and comply with the requirements of 10 C.F.R. 5 2.714(b) and applicable Commission DN 5
case law. See, e.g., { uquesne Light Co. (Beaver Valley, Unit No.1),
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DESIGNATED ORIGINAL 0hhhhh9 Certified E7 L
PDR JYO ?
ALAB-109, 6 AEC 243, 245 (1973); Northern States Power Co. (Prairie Island, Unit Nos. I and 2), ALAB-107, 6 AEC 133, 194 (1973), aff'd, BPI v. Atomic Enerqy Commission, 502 F.2a 424, 429 (D.C. Cir.1974).
10 C.F.R. 2.714(b) requires that a list of contentions which petitioners seek to have litigated be filed along with the bases for those contentions set forth with reasonable specificity.
A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an ati.ack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an is:ue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 &
i 3), ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the basis requirement of 10 C.F.R.12.714 is to assure that the contention in question does not suffer from any of the infirmities listed above, to establish sufficient foundation for the contention to warrant further inquiry of the subject matter in the pro-ceeding, and to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra, at 20.
From the standpoint of basis, it is unnecessary for the petition "to detail the evidence which will be orfered in support of each contention." Mississippi Power & Light Co.
(Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 426 (1973).
However, the degree of specificity with which the basis for a contention
must be alleged involves the Board's judgment on a case by case basis.
Peach Bottom, supra, at 20.
Finally, in examining the contentions and the bases therefore, a licensing board is not to reach the merits of the contentions. Duke power Co. (Amendment to Materials License SNM-1773 -
Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146,151 (1979); Peach Bottom, supra at 20; Grand Gulf, supra at 426.
In a recent decision, Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542 (1980),
the Appeal Board applied the principles described above governing the admissibility of contentions. The decision emphasized that in ruling on the admissibility of a contention, a licensing board is not to venture beyond the contention and its stated basis into the merits of the contention. Any question concerning the validity of the contention or of its basis must be left for consideration when the merits of the controversy are reached, i.e., through summary disposition or infis evidentiary hearing.
Id at 546-551.
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Where, as her e, a proceeding involves a proposed license amendment to allow modification of a spent fF Al, the Licensing Board may only consider matters relevant t
$ modification. As stated in Commonwealth Edison Co. (Zion Station /161ts 1 & 2), ALAB-616,12 NRC 419, 426 (1980):
As the Board correctly perceived, its jurisdiction was limited by the Commission's notice of hearing.
That jurisdiction extended only to issues fairly raised by the application to modify the spent fuel pool, the sole matter which the Commission had placed before it.
[ Footnotes omitted]
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Thus, as decided m y times before, a proceeding to consider a proposal to modify spent fjel pool operations is not a vehicle to question continued operations under the fonnerly granted operating license, prthernStates Power Co. (Prairie Island Nuclear Generating Plant. Units 1 & 2), ALAB-455, 7 NRC 41, 46 n. 4 (1976); Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266 n. 6 (1979); Virginia Electric & Power Co.
(North Anna Nuclear Power Station, Units 1 & 2), ALAB-584,11 NRC 451, j 463-465 (1980); Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, f
13 NRC 312, 324-326 (1981); Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC (July 17, 1981, slip op. at 42-44). Operatiens of the facility as a whole, in contrast to matters that will be affected by the proposed license amendment, may not be looked at.
I d_.
Thus no possible accident may be looked at unless some credible basis is shown to conclude that the likelihood or consequences of such accident could be changed by the proposed amendment.
See Zion, supra, at 424; Salem, supra, at 34-35.
Plant parameters and tha functio.ing of equipment may only be looked at to the extent there is some basis to conclude that their operation would be negatively affected by the proposed license amendment to modify the spent fuel pool.
See North Anna, supra, at 459-463; Salem, supra, at 26-33; Zion, supra, at 424. Such issues as 4
emergency planning are not admissible except to the extent there is a basis alleged for concluding that such planning may have to be changed because of the proposed amendment. Zion, supra, at 426.
Similarly, issues related to compliance with the National Environmental Policy Act and the need for an environmental impact statement can only be those related to the proposed amendment to modify the spent fuel pool,
and changes in environmental effects to be caused by that amendment.
Prairie Island, supra, at 45 n. 4; Trojan, supra at 266 n. 6; North Anna, supra, at 464-46S; Big Rock, supra at 352-329; Salem, supra at 42 43.
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Thus continued operation of the facility, and the environmental effects of that operation which was previously authorized by the original grant of the operating license, cannot be reexamined.
Big Rock, supra; Prairie Island, supra.
Issues concerning the long term operations of fuel pools beyond the licensing term and other environmental matters not noticed as part of the amendment are beyond the sccpe of tha proceeding. See Trojan, supra; Salem, supra, at 37-39.
Further, the cases emphasize that within the context of HEPA, alternatives to the proposed action only need be examined if the proposed amendment either is a " major Federal action significantly affecting the quality of the human environment" (NEPA s 102(2)(C)), or " involves unresolved conflicts concerning alternative uses of available resources" (NEPA 5102(2)(E)). Trojan, supra at 265-267; North A_nna, supra, at 457-458; Salem, supra, at 37-42. To examine this question a Board must first have the Staff's environmental impact appraisal and examine whether the Staf f's conclusions therein are supported.
10 C.F.R.
s 51.52(d); Big Rock, supra at 330-331. Moreover, the alternatives which need be examined, where it is determined that there is a need to lock at alternatives, are only those on which there is some basis to conclude that a proposed alternative is (1) a realistically available alternative in the context of the time when the amendment is needed, and (2) environmentally superior to the proposed course of action.
Trojan, supra at 265; North Anna, supra at 456-458; Salem, supra, at 3-41; Prairie Island, supra, at 49.
In sum, at the petition stage, it is incunbent upon the Petitioner to:
(1) set forth contentions which are sufficiently detailed and specific to demonstrate that the issues are admissible; (2) show that further inquiry is warranted; (3) put the other parties on notice as to what they will heve to defend against or oppose; and (4) set forth the raasons (basis) for each of the contentions, recognizing that the degree of speci-ficity of basis needad will be judged on a case-by-case basis.
III. CONTENTIONS The State of Maine has submitted sixteen contentions. The Staff position on each of the e contentions is set forth below.
Contention 1 The essence of this contention is that the proposed amendment would constitute a major federal action requiring the preparation of a Final Enviromental Impact Statement (FES) pursuant to the National Enviromental Policy Act (NEPA) and NRC regulations. The Staff opposes this contention on the grounds that (1) it is premature in that the Staff has not yet prepared its environmental impact appraisal, and (2) it fails to satisfy the " basis" requirenents of 10 C.F.R. 5 2.714. No impact statement is required unless the proposed action has a major effect on the environment.
Prairie Island, supra at 46; Big Rock, supra, at 325-326.
The raising of an issue that the Staff must prepare an environmental impact statenent prior to the Staff's preparation of an environmental impact appraisal weighing the question is premature. The Staff will canply with NRC rules concerning procedures for enviromental protection (10 C.F.R. Part 51). The Staff will prepare an environmental impact
appraisal with regard to the proposed action.
This appraisal will describe the action, summarize a description of the probable impacts of the proposed action on the environment, and state the basis for a conclusion on whether an environuental impact statement should be prepared.
(See 10 C.F.R. 5 51.7(b))
If the Staff concludes no environmental impact statement is needed, a negative declaration will be prepared stating that the Commission has decided not to prepare an environmental impact statement for the particular action (sec 9 51.7(a)).E If the Staff determines that an environmental impact statement should be prepared, it will publish a notice of intent to publish the statement (see 51.5(c)(1)).
Prairie Island, supra, at ".
The allegations of the State of Maine on the need to prepare an environmental impact statement are premature where the Staff have not yet prepared an environmental impact appraisal.
Big Rock, supra at 330; 10 C.F.R. 6 51.52(d).
Moreover, no basis is set forth for the contention. The State of Maine relies entirely on unsupported assertions that the three aspects of the expansion proposal are major federal actions significantly affecting the quality of the human env.connent and that significantly increased amounts of spent fuel resulting from the proposal may be stored at Maine Yankee on a "long-term or permanent" basis. With regard to la, the State asserts that the proposed reracking and pin compaction storage methods significantly increase both the probability of and consequences of a radioactive release in the event of "a total or partial loss of coolant at the spent fuel pool" y
10 C.F.R. 9 51.52(d) provides that should the Staff determine that an impact statement need not be prepared, "... any party to the proceeding may take a position and offer evidence on the aspects of the proposed actions covered by NEPA and this part in accordance with the provisions of Subpart G of Part 2 of this chapter."
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(at 1 and 2). Such loss of water at the fue pool is asserted to result from reactor accidents that prevent access to the pool and a loss of cooling capacity resulting in an evaporation of the pool water. Further, such loss of water is asserted to result from incidents such as sabotage, an airplane accident, a missile, and an earthquake. Regardless of the type of accident referenced by the State of Maine for the hypothesized loss of spent fuel water, the State has failed to address the credibility of.such accidents. Salem,_
supra, at 35 n. 29; Zion, supra, at 424, make clear that an environmental impact statenent regarding consequences of an accident is not required absent a showing that such accident is a " credible" accident.
See also, North Anna, supra _, at 459.E The State has failed to demonstrate the credibility of any of these " loss of coolant" accidents. Accordingly, the State's argument that an impact statement is required is without support.E With regard to 1b, the only support for the State's contention is the State's assertion that pin compaction is a new and untested technology.
The State refers to language from two letters which were sent to the NRC y
The Staff fails to see the merit in the State's reference to " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969," 45 F.R. 40101. The Commission's statement of position relates only to what should be included in an environmental impact statencnt. The Commission's statement does not address itself to when an impact statement need be prepared. See also Public Service Co. of Oklahoma (Rlack Fox Station, Units 1 & 2), CLI-80-8,11 NRC l
433 (1980).
y To the extent the State may wish to use this proceeding as a vehicle for examining the total safety of the Maine Yankee facility and any accident at the facility, it may not do so. This proceeding only involves a limited amendment to the operating license.
General issues concerning plant operation and the integrity of components not affected by the proposed amendment may not be litigated here.
See pp. 3-4, supra.
fran Maine Yankee. However, these references are nothing more than indi-cations, as noted by the State, of refirements of techniques. This certainly does not indicate that there are or would result "significant" environmental impacts fran the proposal requiring preparation of an impact s tatenent. See North Anna, supra, at 459-463; Salem, supra at 22-36.
The Staff notes the States reference to 40 C.F.R. 51508.27. This section merely defines the tenn "significantly" as it is used in NEPA. Nothing in this section of the NEPA regulations lends supports to the State's argument that the proposed pin compaction requires preparation of an environmental impact statement.
With regard to Ic, the State's reason for asserting that the use of' the cask laydown area may significantly affect the environment is that such use will prevent alternative storage and long term disposal.
In essence, the State argues that use of the cask laydown area will result in an irreversible and irretrievable canmitment of resources requiring preparation of an impact statement. The proposed use of the cask laydown area is not irreversible or irretrievable but in fact only tenporary.
The Applicant states in its amendment proposal:
The short term spent fuel storage rack is intended to be used for short term storage of spent fuel assemblies discharged in full core rejection.
Following completion of activities necessitating full core rejection (e.g., inservice inspection of the reactor vessel and internals) the freshly dis-charged fuel assemblies would be reloaded into the reactor core, leaving the short term storage rack empty, whereupon it canye removed from the spent fuel cask laydown area.
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Attachment B, p.1, to letter. of September 29, 1980 from Maine Yankee to the Nuclear Regulatory Commission.
Accordingly, there is absolutely no basis for the State's aqument that use of the cask laydown area is irreversible and irretrievable.
With regard to id, the State asserts that an environmental impact statement has not been prepared for Maine Yankee evaluating how the spent fuel genernted from the plant's operation will be stored or disposed of following the expiration of the operating license. The State acknowledges the fact that there is an ongoing Commission rulemaking proceeding to
" reassess its degree of confidence that radioactive wastes produced by nuclear facility will be safely disposed of, to detennine where such disposal will be available, and whether such wastes can be safely stored until they are disposed of" (at 7). However, the State aques that unless this rulemaking is completed prior to issuance of the proposed license amendment, an environmental impact statenent addressing such long tenn storage and disposal must be prepared. This argument completely ignores the Commission's statement that "... during this proceeding the issues being considered in the rulemaking should not be addressed in individual proceedings. " Notice of Proposed Rulemaking on " Storage and Disposal of Nuclear Waste," 44 Fed. Reg., 61372, 61373 (October 25,1979). Accordingly, the State's argument must fail.
See also, North Anna, supra, at 464, 465; Salem, supra, at 46, 47.
In sum, the State of Maine has failed to specify how the Staff is failing to comply with NEPA or the Commission's regulations. Absent such specificity, the parties will not know at least generally what they have
to defend against or oppose.
Peach Bottom, supra. A.ccordingly, this contention should be rejected.N y
We note that Applicant has asked the Board to take official notice of the fact that 39 of 39 spent fuel pool expansions have been determined to have no si pificant enviornmental effects, and that Intervenor's contentions calling for an EIS should therefore be excluded as a matter of law. The Staff does not support this view.
Whenever it is determined that no EIS will be prepared, 10 C.F.R. 9 51.52(d) requires that the parties to a proceeding be given an opportunity to litigate the issue of the enviornmental effects of the proposed action.
Salem, supra, at pp. 44-45. As the Appeal Board emphasized the need for an EIS for a spent fuel pool modification must be examined on a case-by-case basis.
Id. at 45,
- n. 39; see 45 Fed. Reg.14506 (Feb. 27,1981); NUREG-057F Vol. I,
- p. 8-1.
Moreover, as stated in the textual discussion, the Appeal Board in Big Rock, supra, at 329-31, held that a Licer ing Board must await a Staff environmental appraisal (be it an LIA or EIS) before decidirig whether a given action significantly affects the environment.
Even if these requirements which offer an opportunity for litigation of environmental issues did not apply, the scope of the Board's official notice discretion could not be extended to the situation in Maine Yankee.
First, official notice discretion is limited where the facts involved are specific and adjudicative.
Baltimore & Ohio Railroad Co. v. Aberdeen and Rockfish Railroad Co_., 393, U.S. 87, 88, 69 S. Ct. 280 (1968). Second, official notice cannot be extended to the findings in a series of previous cases unless the series is of substantial length and the facts involved are fundamentally the same.
Dayco Corporation v. FTC, 362 F.2d 180, 187 (6th Cir. 1966). Although Applicant refers to 39 spent fuel pool expansions on which the Licensing Board found no significant environmental effects, only a very limited number of these decisions have been reviewed by the Appeal Board. Moreover, in Maine Yankee the proposed amendment to expand the spent fuel pool has an additional factor not present in the prior 39 fuei pool expansions.
Applicant's proposal involves compaction of the spent fuel pins into new assemblies.
Finally, even if official notice could be applied, the Intervenor's right to rebut the noticed fact is preserved by the Administrative Procedure Act and the Commission's regulations. 5 U.S.C. 5 556(e); 10 C.F.R. 9 2.743(i). The Commission, however, retairs the right to require more specificity in the Intervenors' contentions.
Vermont Yankee Nuclear Power Corp.
- v. N.R.D.C, 435 U.S. 519. 553 (1978); ~ Philadelphia Electric Company e_t al., (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216. 8 AEC 13, 20 (1974). That would be appropriate here where similar issues have been previously litigated.
FOOTNOTE CONTINUED ON NEXT PAGE
Contention 2 In this contention the State seeks to raise an issue regarding the consequences of a total or partial loss of coolant at the spent fuel pool as modified by the proposed amendment. The Staff opposes the admission of this contention. The State of Maine has failed to satisfy the specificity and basis requirements of 10 C.F.R. 9 2.714. The only support the State of Maine asserts for its contention is the mere listing of types of accidents (at 2-4).
The State, however, fails to state the basis for its belief that these a.:idents will occur at Maine Yankee.
See Salem, supra, at 35; Zion, supra, at 424; North Anna, supra, at 459.
Furthermore, the State of Maine has failed to specify how the Applicant's 5]
FOOTNOTE CONTINUED FROM PRECEDING PAGE Applicant has also requested that the issue of the Board's official notice power in this situation be certified to the Commission pursuant to 10 C.F.R. S 2.730(f). The Staff opposes this request for certification on a question of whether a contention should be admitted into the proceeding.
See Project Management Corp. (Clinch River Breeder Reactor), ALAB-326, 3 NRC 613, rev'd in part sub nom.
U_SERDA (Clinch River Breeder Reactor), CLI-76-13, 4 NRC 13 (1976).
Such a certification is unnecessary because, of the 3 contested spent fuel pool expansion proceedings pending other than the instant case (Consumer Power Company (Big Rock Point Nuclear Plant), Docket 50-155 OLA; Commonwealth Edison Company (Dresden Station, Units 2 &
3), Docket 50-237/249 OLA; Commonwealth Edison Company (Quad Cities Station, Units 1 and 2), Docket 50-254/265 OLA), the issue of whether the need for an FIS can be litigated is open for consideration only in the Quad Cities proceeding. The issue is not involved in the Dresde_n_ proceeding, and has been decided in Big Rock, suora. No showing is made that the public interest would suffer, that there would be any error that could not be later corrected, or that unusual expense or delay would be had if this is-sue is not certified.
See e.g. Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588,11 NRC 533, 5376 (1980); Public Service Co. of New Hampshire (Seabrook Station, units 1 & 2), ALAB-271,1 NRC 478, 483 (1975).
. e proposal will endanger the public health and safety or how the proposal fails to meet any of the Commission's specific regulations.O Absent this required specificity, the parties will not be put on sufficient notice to know at least generally what they will have to defend against or oppose.
Peach Bottom, supra. Accordingly, this contention should be rejected.
Contention 3 In this contention the State asserts that the use of the cask laydown area will violate 10 C.F.R. Part 50 in that there has not been a demonstration that there is reasonable assurance that the public health and safety will not be endangered. The Staff opposes admission of this contention. The State of Maine has failed to satisfy the specificity and basis requirements of 10 C.F.R. 9 2.714. The State has failed to specify how the Applicant's proposal for temporary use of the cask laydown areaU will endanger the public health and safety or how the proposal fails to meet any of the Commission regulations. Absent this required speci-6/
In passing upon an application for an amendment to an operating license, the Commission is guided by the considerations which govern the issuance of initial decisions.
10 C.F.R. 9 50.40. This section in essence requires that the Commission be persuaded, inter alia, that the Applicant comply with all applicable regulations and that the health and safety of the public will not be endangered.
Prairie Island, supra, at 44. The State here has failed to assert
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in accordance with the requirements of 10 C.F.R. 5 2.714 how this proposal will fail to satisfy these considerations.
y See the Staff's Response regarding contention Ic, at 9.
ficity, the parties will not be put on sufficient notice to know at least generally what they will have to defend against or oppose. See pp. 2-4, supra. Accordingly, this contention should be rejected.
Contention 4 The essence of these contentions is that these proceedings should be deferred until the completion of the Commission's waste confidence rule-making proceeding. Otherwise it is asserted that there will not be any consideration of the environmental and safety implications of long term or permanent storage of the incre& sed spent fuel that would be stored as a result ui~ the proposed amendment.
It is further asserted that to proceed prior to completion of the waste confidence proceedings woubt result in irrevocable commitments with regard to long term and permanent disposal of spent fuel at Maine Yankee and precludes a site specific evaluation.
The Staff opposes this contention on the ground that it seeks to raise an issue which is beyond the scope of this proceeding.
As the Appeal Board in North Anna, supra, at 465, (referring to Commission notices) stated, the Comiission decided to consider the waste management question in a generic rulemaking proceedingU and decreed, in accordance E that " licensing practices with its intenretation af Minnesota v. NRC need not be.11tered during this [the rulemaking] proceeding."E Thus 8/
See 44 Fed. Reg. 45362 (August 2, 1979).
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602 F.2d 412 (D.C. Cir.1979).
3 See 44 Fed. Reg. 61373 (October 25,1979).
it would be contrary to Commission policy to suspend this spent fuel modification proceeding until the rulemaking is completed. North Anna, supra, at 464-465; Salem, supra, at 46-47. Accordingly, this contention should be rejected.
Contention 5 In this contention the State of Maine lists five alternatives which it asserts the Applicant and the Staff Save failed to analyze with regard to environnental or public health and safety implications.
As basis for this contention the State of Maine merely asserts that these alternatives would " avoid or reduce the threats to the public health and safety and environmental implications that are addressed by the contentions herein." (at page 9) The Staff believes that this basis is insufficient and does not satisfy the basis requirements of 10 C.F.R. 6 2.714.31/ See pp. 2-6, supra. To satisfy these requirements in this case the Staff believes that the State of Maine must assert some basis which indicates that the " proposed modification might either hava a significant environmental effect or give rise to a controversy over the allocation of resources." North Anna, supra, at 457-58; Trojan, supra, at 265-266; see also Duke Power Co. (Amendment to Materials License 11/ Where the environmental effect of an alternative is not substantial or involves conflicting use of resources no examination of alterna-tives is needed.
See pp. 4-5, supra.
SNM-1773), ALAB-651,14 NRC (Aug. 10, 1981). As the Appeal Board has stated "there is no obligation to search out alternatives to a ccurse which itself will not either ham the enviroment or bring into serious question the manner in which this country's resources are being expended."N Moreover. with regard to alternative (e) and the basis that this alternative would reduce output and reduce the generation of spent fuel, the State of Maine is seeking relitigation of the enviromental impacts of the spent fuel generated from the full tem operation of the Maine Yankee facility. Such relitigation is not required by NEPA. Big Rock, supra, at 325-330; Prairie Island, supra, at 46 n.4; Trojan, supra, at 1_2/ Trojan, supra, at 266; See also North Anna, supra, at 457, where the Board noted that in the Trojan case it found that installation of new, higher density ttorage packs in the spent fuel pool to serve the needs of two unics would have negligible environmental impact and, additionally, would not present unresolved conflicts over the commitment of available resources (at 457). The Appeal Board added that ii. is difficult to fathon "how such a conflict might arise" (at 458).
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266 n.6.
Finally,10 C.F.R. 5 51.7 does not, as asserted by the State of Maine, require a discussion of alternatives in impact appraisals.J3/
Contention 6 In this contention the State of Maine asserts that the Applicant does not need all thrce aspects of the proposal at this time and that approval of both reracking and pin compaction forecloses Maine Yankee from adopting alternatives formulated by the waste confidence rulemaking.
In essence, the State of Maine is contending that approval of part of the Licensee's proposal should await the outcome of the waste confidence rulemaki ng. Accordingly, as discussed more fully above in the Staff's response to Contention 4, this contention should be rejected. As noted there, the Commission has stated that licensing practices need not be 13/ The appropriate section of 10 C.F.R. 9 51.7 provides:
(b) Environmental impact appraisals. An environmental impact appraisal will be prepared in support of all negative declarations. The appraisal will include:
(1) A description of the proposed action; (2) A summary description of the probable impacts of the proposed action on the environment; and (3) The basis for the conclusion that no environmental impact statenent need be prepared.
r Lists of environnental impact appraisals will be maintained and l
made publicly available in accordance with 5 51.54(b).
Impact appraisals will be made available to the public upon request in accordance with 9 51.55.
Although a rule has been proposed to change this section to include in appraisals a discussion of alternatives where appropriate, such l
proposed rule has not been adopted by the Canmission. Accordingly, the rule as cited above remains in effect.
See Notice of Proposed Rulemaking to Revise Part 51 (45 Fed. Reg. 13739.13740, March 3, 1980).
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altered during this [the rulemaking] proceeding." 44 Led. R_eg. 61372, 61373 (October 25,1979). See'also, North Anna Power Co., supra, at 465.
The Commission added that in the event it detennines that onsite storage after license expiration may be necessary or appropriate, "it will issue a proposed rule providing how that question,,ill be addressed." 44 Fed.
Reg. 61372, 61373 (October 25,1979). Moreover, the assertion that.
approval of the proposal should be done in a piecemeal fashion in case "other storage methods" are later proved to be less harmful, is entirely speculative and accordingly fails to satisfy the basis requirements of 10 C.F.R. % 2.714.
In addition, there is no Commission requirement that an Applicant demonstrate that it needs the license amendment. The contention is inadmissible.
Contention 7 This contention states:
"The proposed methods of expanding the spent fuel storage capacity by reracking and pin compaction will not assure that k - effective will remain below.95."
Although there is regulatory guidance which indicates that the Applicant provide assurance that the k be less than.95 for the spent fuel pool, there is no eff Commission regulation requiring the Applicant to provide such assurance.
Accordingly, there is no litigable issue.
PeachBottom, supra.b Contention 8 In this contention the State asserts that boral corrosion will cause swelling in the rack walls which in turn will cause a release of radiation "in excess of standards" and prevent renoval of spent fuel assemblies.
3 Cf. Salem, supra, at 12-13; see also Sensible Maine Power's Contention 16.
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The Staff opposes this contention on the ground that it fails to satisfy the specificity and basis requirements of 10 C.F.R. 9 2.714.
The State has failed to specify what " standards" will be exceeded. Moreover, there is no basis stated for the contention. There is no basis alleged of a mechanisn which would cause the racks to swell so as to put stress on fuel pins or hinder their removal. There is no indication of how swelling will cause the release of radiation.
Cf. Salem, supra, f
at 22-25. Accordingly, this contention should be rejected.
Contention 9 In this contention the State asserts that there will not be sufficiently unrestricted coolant flows to avoid local boiling when the spent fuel pool is loaded with reracked and pin compacted assemblies.
The Staff supports admission of this contention on the ground that it satisfies the specificity and basis requirements of 10 C.F.R. % 2.714, and states an issue which is appropriate for consideration in this proceeding.
Contention 10 In this contention the State asserts that the Applicant has failed tn analyze the consequences of the accidental dropping of a shipping cask on spent fuel in the pool following the proposed modification. The Staff opposes the admission of this contention. The Licensee will not move a spent fuel shipping cask over the Maine Yankee spent fuel pool.E Thus, there is no basis for this contention.
15/ See " Maine Yankee Spent Fuel Storage Modifications", Q 4.7.2.1, at 4-40, forwarded to the NRC by Maine Yankee Atomic Power Company letter of October 5,1981.
1 yr,
Contention 11 In this contention the State of Maine asserts that until the procedures and equipment for the proposed amendment (including plans for monitoring radiation, hiring, testing, training and supervision) are "specified", the Beard will not be able to find that the Licensee's proposal will not endanger the public health and safety comply with 10 C.F.R. Parts 20 and 50. This contention is so broadly worded that the parties will not know at least generally what they will have to defend against or oppose.
Peach Bottom, supra, at 20-21. There is no indication how the Licensee has or will fail to meet 10 C.F.R. Parts 20 or 50. Accordingly, the contention fails to meet the specificity and basis requirements of 10 C.F.R. 5 2.714.
Contention 12 In this contention the State asserts that the Applicant will not be able to comply with the " monitoring procedures" of 10 C.F.R. Parts 20 and
- 50. The tenn " monitoring procedures" is so vague that the parties cannot know what they will have to defend against or oppose.
Peach Bottom, supra, at 20-21. Accordingly, the contention fails to meet the basis and specificity requirements of 10 C.F.R. 9 2.714 and should be rejected.
Contention 13 In this contention the State of Maine asserts that the Applicant will not comply with 10 C.F.R. Part 50, Appendix A.
In support of the contention the State asserts that the probability and consequences of s
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accidents previously considered in the Final Safety Analysis Report, Safety Evaluation Report, and Environmental Impact Statement regarding the operating license will be increased by this proposal and such increase has not been " reconsidered" by the Licensee.
The Staff opposes this contention because it is completely devoid of any basis.
See Zior-, supra, at 224; Salem, supra, at 34-35. There is no indication how the Licensee has failed to meet 10 C.F.R. Part 50 or what particular criterion of Appendix A is of concern to the State.
See Peach Bottom, supra, at 20-21. A'ccordingly, it fails to meet the basis requirements of 10 C.F.R. 6 2.714.
Contention 14 This contention provides:
The licensee has failed to demonstrate that the occupational exposure resulting from the proposed pin compaction and reracking will be kept within NRC regulatory limits, including ALARA.
The Staff supports admission of this contention on the ground that it satisfies the specificity and basis requirements of 10 C.F.R. @ 2.714, and states an issue which is appropriate for consideration in this proceeding. A similar contention of Sensible Maine Power has been admitted into this proceeding.
See SMP Contention 5.
Contention 15 l
In this contention the State asserts that there is not reasonable assurance that the integrity of the spent fuel pool walls and floor will i
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be maintained during seismic disturbances when modified by the proposal.
The Staff supports this contention to the extent it asserts 9at the spent fuel pool walls and pool floor, in light of the proposed amendment, have not been analyzed for the seismic events premising the licensing of tne facility.E As basis for this contention the State indictes that the proposed aiaendraent will invcive the addition of greater weight to the spent fuel poal. Accordingly, the Staf f believes that the contention, as modified by the Staff above, meets the requirements of 10 C.F.R. 5 2.714.
However, to the extent the contention seeks to reexamine the seismic premises on which the plant was licensed the contention is opposed.
See pp. 3-6, supra.
Contention 16 In this contention the State of Maine asserts that neither the Applicant nor the Staff has addressed specific unresolved generic safety issues (Task Nos. A-17, A-24, A-36, A-40, A-46, A-47, A-1, A-4, A-9, A-11, A-12, A-43, A-44, A-45 and A-48). The Staff believes that the State of Maine has failed to show that there is a tie between the Applicant's proposal 1_6f The seismic aspects of the Maine ankee site and design basis for structures and equipment were reviewed by the Staff in 1972 (Safety Evaluation by the Division of Reactor Licensing U.S. Atomic Energy Commission in the Matter of Maine Yankee Atomic Power Company Maine Yankee Atomic Power Station Docket No. 50-309, 99 3.1.4 and 3.2.3) and found acceptable by the Licensing Board in its Initial Decision regarding operation of the Maine Yankee facility. Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station), LBP-73-21, 6 AEC 465 (1973).
and the listed issues. See, Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 772-774 (1977). The State simply asserts that these generic issues "directly relate" to the proposal. Although the State describes some of the unresolved generic issues, it does not demonstrate how such issues relate to the proposed amendment. No basis is given for the contention. See Salem, supra, at 31 and 32, n. 24. Further, it is emphasized that this proceeding cannot look at any issue not related to the proposed license amendment described in the notice of hearing. See pp. 3-6, supra. Accordingly, this contention should be rejected.
IV. CONCLUSION The Staff does not oppose the admission of the State of Maine's Contentions 9,14 and 15 (as limited). The balance of the State's con-tentions should be excluded from this proceeding.
Respectfully submitted, bd Edwin J.
eis Assistant Chief Hearing Counsel Dated at Bethesda, Maryland l
this 26th day of October,1981.
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UNITED STATES OF AMERICA HUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
MAINE YANKEE ATOMIC POWER C0ftPANY Docket No. 50-309
)
(Spent Fuel)
(Maine Yankee Atomic Power Station))
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE T0 CONTENTIONS FILED BY THE STATE OF MAINE" iri the above-captioned proceedir.g have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Comission's internal mail system, this 26th day of October,1981:
Robert M. Leo, Esq., Chairman
- Administrative Judge Rufus E. Brown Atomic Safety and Licensing Board Deputy Attorney General U.S. Nuclear Regulatory Comission Department of the Attorney General Washington, DC 20555 State House Augusta, ME 04333 Dr. Cadet H. Hand, Jr.
Administrative Judge and Director, Bodega Marine Laboratory David Santee Miller University of California Counsel for Petitioner P.O. Box 247 213 Morgan Street, N.H.
Bodega Bay, CA 94923 Washington, DC 20001 Peter A. Morris
- Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel
- U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Thomas Dignan, Esq.
Atomic Safety and Licensing Ropes & Gray Appeal Board
- 225 Franklin Street U.S. Nuclear Regulatory Comission Boston, l%
02110 Washington, DC 20555 Stanley Tupper Docketing and Service Section*
Tupper & Bradley Office of the Secretary 102 Townsend Avenue U.S. Nuclear Regulatory Comissior.
Boothbay Harbor, ME 04538 Washington, DC 20555
David Colton-Manheim Box #386 Bedford's Barn Gouldsboro, Maine 04607 72 4 Ad EdwinJ.geis Assistant Chief Hearing Counsel 1
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