ML20032A128
| ML20032A128 | |
| 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 8110280337 | |
| Download: ML20032A128 (23) | |
Text
J 10/26/81 e
UNITED STATES OF NiERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
"%h y
BN In the Matter of
)
S MAINE YANKEE ATOMIC POWER COMPANY Docket No. 50.
Oc7g 7 IO8th, y 7
)
(SpentFue
- '8 (Maine Yankee Atomic Power Station))
v
%=
roer s
/
HRC STAFF'S RESPONSE TO
,q,[@
CONTENTIONS FILED BY SENSIBLE MAINE POWER 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 Intervenor, Sensible Maine Power (SMP), filed its revised contentior.s in a document entitled "Intervenor's Specific Contentions."M The NRC Staff's position with regard to the admissibility of SMP's contentions is set forth below.
II.
CONTENTIONS REQUIREMENTS As a general matter, for the contentions proposed to be admissible, they must fall within the sc0De of the issues set forth in the Federal Register _ Notice of Hearing (Notice of Hearing) (Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-316, 3 NRC 167, 171 (1976)) in this proceeding. 44 Fed. Reg. 61273 (October 24,1979) and 46 Fed. R_eg. 9315 (January P.8,1981), and comply If The Staff notes that SMP asserts the right to amend these contentions.
This may only be done with leave of.the Board following an appropriate determination made by the Board pursuant to 10 C.F.R. 9 2.714(a)(1).
py DESIGNAT 0RICINAL 3
s s
Certified By _ /
[y #!$f f2
with the requirements of 10 C.F.R. l 2.714(b) and applicable Comission case law. See, e a, Duquesne Light Co. (Beaver Valley, Units No. 1),
ALAB-109, 6 AEC 243, 245 (1973); Northern States Power Co. (Prairie Island, Unit Nos.1 and 2), ALAB-107, 6 AEC 188,194 (1973), aff'd, BPI v. Atomic _
Energy Comission, 507 F.2d 424, 429 (D.C. Cir.1974).
10 C.F.R. 6 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 spec i ficity. 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 attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's viaws of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks tc an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 &
3), ALAB-216, 8 AEC 13, 20-21 (1974).
The purpose of the basis requirement of 10 C.F.R. 5 2.714 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 ufficiently 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 tne evidence which will be offered in support of each contention." Mississippi Power & Light Co.
(Grand Gulf Huclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 426 (1973).
However, the degree ci specificity with which the basis for a contentior.
must oe adeged 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 Cr# ek Huclear 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 v: venture beyond the contention and its stated basis intc the merits of th.e con-tention. Any question concerning the validity of the contention or of its basis must be lef t for considero ion when the merits of the controversy are reached, i.e., through summary disposition or in the evidentiary hearing. id.at546-551.
Where, as here, a proceeding involves a proposed license amendment to allow modification of a 3 pent fuel pool, the Licensing Board may only consider matters relevant to that modification. As stated in Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616,12 NRC 419, 426 (1980):
As the Board correctly perceivad, its jurisdiction i
was limited by the Commission's notice of hearing.
.That jurisdicticn extended only to issues fairly raised by the application to modify the spent fuel w e.
-m w-r em. ++-
e+-
e-g
- w te-we e
q g
m'a--
( ~ -
w--e r r
v*'rer
pool, the sole matter hich the Commi;ston had placed before it.
[ Footnotes omitted]
Thus, as decided many times before, a proceeding to consider a proposal to modify spent fuel pool operations is not a vehicle to question continued operations under the formerly granted operating license.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 46 n. 4 (1976); Portland General Electt ic Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266 n. 6 (1979); Virginia Electric & Power Co.
(liorth Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 463-465 (1980); Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 324-326 (1981); Public Service p ectric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC (Jely 17, 1981, slip op. at 42-44). Operations of the facility as a whole, in contrast to matters that will be effected by the proposed license amendment, may not be looked at. Jd. Thus no possible accidcnt may be looked at ur.less sone credible basis is shown to cc4clude 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 the functioning of equipment, may only be looked at to the axtent 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 emergency planning dre not admissible eXCept to the extent there is a basis alleged for concluding that such planning may be affected by the proposed amendment. Zion, suora, 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, 4
and changes in environmental effects to t,e caused by that amendment.
Prairie Island, supra, at 46 n. 4; Trojan, supra at 266 n. 6; Nortn Anna.-
i supra, at 464-465; Big Rock, supra at 352-329; Salem, supra at 42-43.
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 ar.endment are beyond the scope of the proceeding.
See Trojan, supra, Salem, supra, at 37-39.
Further, the cases emphasize s
that within the context of NEPA, 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 environ-ment" (NEPA s 102(2)(C)), or " involves unresolved conflicts concerning alternative uses of available resources" (NEPA 6 102(2)(E)).
- Trojan, supra _ at 265-207; North Anna, supra, at 457-458; Salem, supra, at 37-42.
To excaine this question a Board must first have tne Staff's environ-mental impact appraisal and examine whether the Staff's conclusions therein are supported.
10 C.F.R. 6 51.52(d); Big Pock, supra at 330-331.
Moreover, the alternatives which need be examined, where it is determined i
that there is a need to look at alternatives, are only thost on which there is some basis to conclude that a proposed alternative is (1) a real'stically available alternative in the context of the time when the
amendment is needed, and (2) environmentally cuperior to the proposed course of action.
Trojan, supra at 255; North Aryg, supra at 456-458, Salem, supra, at 37-41; Prairie Island, supra, at 49.
In sum, at the petition stage, it is incumbent upon the Petitioner to:(1) set forth contentions which are sufficiently detailed and specific to demonstrate that the issues raised 6N edmissible and relevant to the proposed fuel pool expansion; (2) show that further inquiry is warranted; (4) put the other parties on notice as to what they will have to defend against r oppose; and (4) set forth a reasonable basis for each of the contenticas, recognizing that the degree of specificity of basis needed will be judged on a case-by-case basis.
III.
CONTENTIONS Sensible Maine Power has submitted eighteen contentions. The Staff position on each of these contentions it set forth below.
Contention 1 The essence of this contention is that the proposed amendment would constitute a major federal action significantly affecting the quality of the human environment requiring the preparation of a Final Environmental Impact Statement (FES) pursuant to the National Environmental Policy Act (NEPA) and NRC regulations. The Staff opposes this contention on the grounds that (1) it is premature in that the Staff has oct yet prepared its environmental impact appraisal, and (2) it fails to satisfy the " basis" requirements of 10 C.F.R. 6 2.714.
No impact statement is required unless the proposed action ha e rignific qt effect on the environment.
Prairie Island, supra at 46; Big Rock, supr,7, at 325-326.
._.__ ~
The raising of an issue that the Staff must prepare an environmental impact statement prior to the Staff's preparation of an environmental impact appraisal weighing the question is premature. The Staff will comply with NRC rules concerning procedures for environmental protection (10 C.F.R. Part 51).
The Staff will prepare an environmental impact appraisal with regard to the proposed action. This appet'.3al will describe the action, sunmarize a description of the probable impacts of the proposed action on the environuent and state the basis for a its conclusion en whether an environmental impact statement should be prepared.
(See 10 C.F.R. I 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 acticn (see 5 51.7(a)).2/ If the Staff determines that an environmental impact statement should be prep.ored, it will publiss a notice of intent to publish the statement (see 51.5(c)(1)).
Prairie Island, supra, at 44.
The allegatioas af SNM On the need to prepare an enviro > mental impact stntement are premature where the Staff has not yet prepared an environmental impact appraisal.
Big Rock, supra at 330; 10 C.F.R. 5 51.52(d).
Moreover there is no basis set forth for the contention. To support this contention that an FES is needed S!1P relies entirely on a general reference to tne other contentions and assertions that an FES should consider impacts such as heat and radioactive emissions from spent fuel 2/
IC C.F.R. 5 51.52(d) provides that should the Staff detenaine that an impact statement need not be prepared, "... any party to the proceeding may take a position and offer esidence 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."
i
. pool criticality, fuel handling accidents, a spent fuel pool loss of coolant accident and from storage of additional spent fuel (page 4).
No basis is set out on which to determine that any of these matters could have a significant effect on the environment.
Thus, SMP has failed to incicate why these impacts need to be discussed in an FES. See pp. 3-6, supra. Allegations concerning a possible accident do not require the preparation of an FES unless there is an identification of a specific accident and then a showing that such accident is a " credible" a tident.
Dalem, supra, at 35
.1. 29.
In sum, SMP 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 c9 poses beach Bottom, supra. Accordingly, this contention should be rejected./
3/
We note that Applic3nt nas asked the Board to take official notice of the fact that 39 of 39 spent fuel pool expansions have been deter-mined to have no sionificant environmental 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 EI; will be prepared, 10 C.F.R. 6 51.52(d) requires that the parties to a proceeding be given an opportunity to
!!tigate the issue of the environmental effects of the proposed action. See, Salem, supra, at 44-45. As the Appeal Board cephasizea the need for an EIS for spent fuel pool modification must be examined on a case-by-case basis. Salem, supra, at 45 n. 39; see 45 Fed. Reg. 14506 (Feb. 27, 1981); NUREG-3575, Vol. 1, 8-1.
As stated in the textual discussion, the Appeal Board in Big Rock, supra, at 329-31, I
held that a Licensing Board must await a Staff environmental appraisal (be it an EIA or EIS) before deciding whether a given action significantly affects the environment.
Even if these requirements which 0 ier an opportunity for the litiga-0 tion of environmental issues did not apply, the scr;c of the Board's official notice discretion could not be extended to the situation in Maine Yankee.
First, official notice discretion is limited where FOOTNOTE CONTINUED ON NEXT PAGE
Contention 2 In this contention Slip argues that the proposed amendment is premature in that the Applicant has not shown that all aspects of the proposal are 3]
^0Tl10TE CONTIl4UED FRM PRECEDIrlG PAGE the facts involved are specific and adjudicative.
Baltimore & Ohio Railroad Co. v. Aberdeen and Rockfish Railroad Co., 393 U.S. 87, 89, 89 S.Ct. 280 (1968). Second, official notice cannot be extended to the findings in a series of previous cases unless the facts involved die fundanentally the same.
DayCo Corporation v. FTC, 362 F.2d 180, 187 (6th C'r. 1956). Although Applicant refers to 39 spent fuel pool expansion in which the Licensing Board found no significant environmental effects, only a very limited nuaber of these decisions have been reviewed by the Appeal Board, floreover, in Maine Yankee the proposed amendment to expand the spent fuel pool has an additional factor not present in the prior 39 fuel pool expansions.
_Cf. Salem, supra. 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. 6 556(e); 10 C.F.R. s 2.743(1).
The Comission, however, retains the right to require more specificity in the Intervenors' cantentions.
Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519, 553 (1978); Phil n )lphia Electric Company et al. (Peach Botton Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).
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 f4RC 613, rev'd in part sub nom.
USERDA (Clinch River Breeder Reactor), CLI-76-13, 4 f4RC 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; Coranwealth Edison Company (Quad Cities Station, Units 1 and 2), Docket 50-254/265 OLA), the issue of whether the need for an EIS can be litigated is open for consideration only in the Quad Cities proceeding. The issue is not involved in the Dresden proceeding, and has been decided in Big Rock, supra.
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.
See n Public Service Electric & Gas Co. (Salem fluclear Generating Station, Unit 1), ALAB-588, 11 f4RC 533, 5376 (1980); Public Service Cc. of flew Hampshire (Seabrook Station, units 1 & 2), ALAB-271,1 f4RC 4/8, 483 (1975).
needed at this time. The Staff opposes this contention on grounds that it does not satisfy the specificity and basis requirements of 10 C.F.R. 9 2.714. SMP does not indicate in any way how consideration of the Applicant's proposal at this time is in any way contrary to NEPA or the Atomic Energy Act and the Conaission's Regulations.
Further, there is no requirement that the Applicant demonstrate need for the proposal at this time.
In fact, the Appeal Board and the Commission have indicated that resolution of safety and environmental issues at an early stage in the licensing process best serves the public interest.O Contention 3 In this contention SMP b asserting that the Applicant must, at this time, submit detailed operating procedures including a detailed description of management, personnel and technical practices (including guidelines concerning hiring, testing, training and supervision of all personnel to be engaged in the pin compaction proposal).
The Staff opposes admission of the contention on the ground that nothing in the Commission's regulations requires the detailed procedures that SMP asserts should be present.
Cf. Zion, supra, at 422. Moreover, 4
3 4_/
See the Statements of Consideration concerning "Early Site Review and Limited Work Authorizations" 42 Fed. Reg. 22882, May 5,1977 and 4
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAti-277,1 NRC 539 (1975).
l
the matters asserted in subperagraphs (c) and (d) concerning past inspection reports c' the effect of lack of procedures on the Staff's review is innaterial to the issue of whether the activities to be authorized by the proposed auendment are safe. Accordingly, the contention as stated must be reject:4 Contention a In this contention SMP lists ten alternatives which SMP believes are preferat,le to the proposed w.enduent. The Staff opposes this contention on the ground that SMP has not set forth sufficient basis to meet the requirements of 10 C.F.R. 9 2.714.
For alternatives (a)-(g) SMP merely asserts as basis that these alternatives "would avoid or obviate the risks and consequences to the public health safety and welfare, and to the environment" (at 6 and 7).
For alternatives (h)-(j) SMP asserts as basis that these alternatives would postpone the need for the proposed amendaent (at 7). These reasons are not sufficient. They do not establish for each suggested alternative " sufficient foundation" "to warrant further inquiry in the subject matter in the proceeding".
Peach Bottom,_ supra, at 20.
Ho basis is given on which it could be concluded that the proposed amendment would have a significant environmental effect, that any of the l
listed " alternatives" would be environmentally superior or that such alternatives are available.
See pp. 5-6, supra.
No consideration of 2
alternatives is needed unless it is shown that the proposed modification has either a significant environmental effect (NEPA 9 102(2)(C)) or (
ves 4
e-,
,---4
.,yy.
.w,%
-.,.y-
~,
- - ~.
rise to a controversy over the allocation of resources.
(NEPA 9 102(2)(E)).
Trojan, supra, at 266. North Anna, supra, at 457; see also, Duke Power Co.
(Amendment to Materials License SNM-1773), ALAB-651, 14 NRC (Aug. 10, 1981). S!!P has not shown a basis for either of these conclusions.
- Further, "there is no obligation to search out alternatives to a course which itself will not either hana the en'/ironment or bring into serious question the manner in which this country's resources are being expanded. North Anna, supra, at 457-58.
See also, Consumers Power Co. (Midland Plant, Units 1
& 2), ALAB-458, 7 NRC 155, 162 (1978).
No basis has been set out to conclude any of the listed alternatives would be environmentally better.
Thus the contention must fdil.
Moreover, with regard to alternatives (f) through (1) and the basis asserted that they would reduce the amount of spent fuel generated, SMP is seeking relitigation of the environmental impacts of the spent fuel generated from the full term operation of the Maine Yankee Facility.
Such <elitigation is not required by NEPA.
Prairie Island, supra, at 46
- n. 4; Trojan, supra, at 265 n. 6.
I Contention 5 1
The Staff as indicated at the August 11, 1981 prehearingconferenc8 l
supports the admission of this contention, but believes 'that it should reflect the exact language agreed to by the parties.
Accordingly, the words "or alara" should read " including ALARA."
Contention 6 In Contention 6(a) SMI ssserts that radioactive emissions from the pin compaction proposal will not meet regulatory limits, including ALARA.
1 i
l 5/
See Tr. 137. See also Board's Prehearing Conference Order, Oct. 24, 1981, at I n. 1.
l l
. _ _ =
m.
The proposed contention is so vague that it gives no notice of what SMP hopes to litigate.
Moreover, SilP has completely failed to give any basis for what would cause such releases or any basis to say that those releases would have safety or environuental significance. g. North Anna, supra, at 459-463; Salem, supra at 26-35. Accordingly, this contention does not satisfy the requirements of 10 C.F.R. 9 2.714 and must be rejected.
In 6(b) and (c) SitP asserts that " additional heat limits likely to be discharged in the vicinity of the plant" will not meet " regulatory limits," ALARA or be " justifiable on a cost-benefit basis." Again, this contention is so vague the parties will not know what they will have to defend against or oppose.
Peach Bottom, supra, at 20.
Further, it is not clear what heat emissions SMP is concerned about. ALARA does not apply to heat, but to radiation. There are no regulatory limits on heat emissions.
Finally, there is no basis sat forth for this contention.
Accordingly, Contentions 6(b) and (c) should be rejected.
Contentien 7 In this contention SMP seeks consideration of operation of the spent fuel pool following a Class 9 accident. The Staff opposes the admission of this contention.
It is devoid of basis or specificity as to the particular accident or accidents or whether the accident or accidents SMP seeks to have considered here are " credible accidents'.O Furthermore, no nexus 6f To require anything less than identification of a specific 6ccident would be inconsistent wita NEPA.
NEPA does not require consideration of circumstances that are "only remote and speculative possibilities."
Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972). Short of identification of a specific accident and then a showing tnat such accident is a " credible" accident, NEPA does not require the preparation of an Environmental Impact Statement.
Salem, supra, slip op. at 35 n. 29; Zion, supra, at 424.
. is shown between any accident or accidents which SitP believes might occur, and the proposed action of spent fuel compaction, reracking and potential use of the cask laydown area.2/ Absent this requisite showing, the proposed contention is inadmissible.
Contention 8 In this contention SMP seeks consideration of operation of the spent fuel pool following the occurrence of failures of "one or more pumps,"
" heat exchangers," " transmission lines," or the " loss of coolant." The Staff opposes the admission of this contention. The contention is devoid of any basis or specificity as to the particular mechanism that will cause the Maine Yankee Spent Fuel Pool to lose its cooling capacity.
It is not sufficient to simply assert that ths "punps," " heat exchangers,"
" transmission lines," or " loss of coolant" have not been sufficiently analyzed. Salem, supra; Zion, supra, at 420-424.
Furthermore, no nexus is rhown between the asserted loss of cooling accident and the proposed amendment. Absent this requisite showing, the propased contention is inadmissible. Marble Hill, supra; North Anna, supra, at 459-463.
Contention 9 In this contention SMP seeks consideration of the ability of the l
l spent fuel pool to prevent " hot spots" or " boiling" in light of the proposed amendment. The Staff supports admission of this contention.
Sufficient 7/
As indicated in Marble Hill, supra, at 171, the consideration of a particular accident must be shown to be within the scope of issues set forth in the relevant notice of hearing.
L
basis and specificity is set forth to satisfy the minimum requirements of 10 C.F.R. 5 2.714.
Contention 10 In this contention SitP asserts that materials deterioration or failures in materials integrity will result from increased heat and radioactivity resulting from the proposed Suendment. The Staff opposes this contention as no basis is set out whereby the heat and radioactivity could cause the alleged degradation of materials. Cf. tiorth Anna, supra, at 459-463; Salem, supra, at 26-36.
Contention 11 In this contention SMP seeks consideration of " seismic phenomena" on the " modified" spent fuel pool. The Staff does not oppose the admission of this contention to the extent it asserts that the spent fuel pool liner and concrete structure, fuel pins and fuel assemblies and storage racks in lignt of the proposed amendment have not been analyzed for the seismic event premising the licensing of this facility.E As basis for this contention S!!P indicates that the proposed amendment involves the use of new storage racks and would involve the addition of greater weight to the spent fuel pool.
Accordingly, the Staff believes that the contention, 8]
The seismic aspects of the Maine Yankee 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 Mair.e Yankee Atomic Power Company Maine Yankee Atomic Power Station Docket tio. 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). Since this matter has been litigated, it should not be "replowad" in consideration of the proposed amendment.
See Prairie Island, supra and Jan, supra.
to the extent delineated by the Staff above, meets the requirements of 10 C.F.R. 5 2.714.
However, to the extent that SMP is seei;ing to reliti-gate the seismic aspects of the site and seismic design of the-facility which r!ere determined for the issuance of an operating 11 cense, those issues would not be appropriate for this proceeding. See pp. 3-6, supra.
Cor.tention 12 In this contention SMP seeks to raise the issue of the ability of the spent fuel pool to withstand an aircraft crash. The Staff opposes the admission of this contention on the basis that it fails to satisfy the requisite besis and specificity requirements of 10 C.F.R. 9 2.714.
SMP has failed to state any basis for the supposition that an aircraft will crash into the fuel in the spent fuel pool at the Maine Yankee facility.
Furthermore, SMP, by this contention, appears to seek re-litigation of the adequacy of Maine Yankee facility's design which was a basis of the issuance of an operating license.
Contention 13 In this contention SMP asserts that there has been insufficient consideration given to the consequences of dropping a fuel assembly or fuel cask ir. the fuel pool as modified by the proposal. The Staff supports admission of this contention with respect to the dropping of a fuel as-sembly on the grounds that it satisfies th< specificity and basis require-ments of 10 C.F.R. b 2.714, and states an issue which is appropriate for
consideration in this proceeding.E/ SMP adequately specifies its concern that the Applicant has failed to adequately analyze the consequences of an accident involving the dropping of a fuel assembly in the fuel pool with implementation of the proposal. As basis for this contention SMP notes that the fuel assemblies will contain more rods. Accordingly Sid asserts this could increase the consequences of an accidental drop of an assembly.
Contention 14 This contention asserts that the Applicant and Staff have failed to adequately consider the "long-term" environmental and safety effects of tne proposal beyond the term of the Maine tankee operating license.
The Staff opposes this contention on the grounds that it seeks to raise an issue which is beyond the scope of this proceeding. The Commission has provided that issues concerning the long-term storage of waste beyond license terms may rot be the subject of adjudication in individual licensing actions.
In setting down the rulemaking proceeding to " reassess its degree of confidence that radioactive wastes produced by nuclear facilities 9/
The Licensee does not propose the use of a spent fuel shipping cask in tne Maine Yankee spent fuel pool and accordingly has not evaluated the cask drop accident.
See Maine Yankee " Spent Fuel Storage Modifications" report attached tc letter of October 5,1931 from Maine Yankee Atomic Power Co. to the NRC.
Accordingly, if the pro-posed amendment is issued an appropriate technical specification will prevent the use of a spent fuel shipping cask over the Maine Yankee fuel pool.
will be safely disposed of, to determine when such disposal will_be available, and whether such wastes can be safely stored until they are disposed of," the Comission stated that "... during this proceeding the issues being considered in the ruleuaking should not be addressed in individual licensing proceedings." Notice of Proposed Rulemaking on
" Storage and Disposal of Nuclear Waste," 44 Fed. Rm. 61372, 61373 (October 25,1979). Thus, issues concerning the long-term operation
-of the fuel pool beyond the license term may not be considered here.
North Anna, supra, at 464-465; Prairie Island, supra, at 51; Salem, supra at 46-47; Trojan, supra, at 265-267.
Contention 15 In this contention SitP seeks to litigate the Applicant's financial qualifications. The Staff opposes this contention.
The issue of financial qualification of the Applicant has already b an addressed in the Initial Decision. The Licensing Board concluded that the Applicant "is tectaically and financially qualified to engage in the activities to be authorized by the operating license in accordance with the Regulations of the Comiscion."
Maine Yankee _, supra, at 479. To the extent SMP is seeking relitigation of this matter, it may not do so in this proceeding.
Consumers Power !_p.
(Big Rock Point Nuclear Power Plant), LBP-80-4, 11 NRC 117, 127 (1980);
see pp, 3-6, supre.
Furthennore, StiP has failed to set forth sufficient basis for an assertion that the Applicant does not comply with 10 C.f.R.
5'50.33(f). This section does not, as asserted by SMP, require the Applicant to demonstrate that it is financially qualnied "to decommission the plant at the ena of its useful life, including the disposal of the accumu-lated irradiated nuclear fuel." Nor does this section require a " guaranteed
financial mechanism" for such decommissioning. As stated this contention is a challange to 10 C.F.R. 9 50.33(f) not permitted without following the prerequisites in 10 C.F.R. 6 2.758. E Contention 16 In this contention SMP asserts that there has not been a demonstration that the irradiated nuclear fuel pool will not go critical.
The Staff supports admission of this contention.
Sufficient basis and specificity is set forth to satisfy the minimum requirements of 10 C.F.R. 9 2.714.
Contention 17 In this contention SitP asserts that the Applicant is not technically qualified to aanage the pin compaction proposal. The Staff opposes the admission of this contention for the reason that SMP has not satisfied the basis requirement of 10 C.F.R. 5 2.714.
SMP has merely asserted a belief that the pin consolidation is difficult and that the Applicant has not demonstrated that it has the " experience" or " capability" to conduct the operation. The Staff believes that this alone does not support a contention that the Applicant is not technically qualified "to manage the proposed pin sto age (pinpacking) operation in a manner which protects the public health and safety".
In essence, the Staff does not believe SMP has raised sufficient basis for the contention to warrant further inquiry of the 10/ 10 C.F.R 6 50,33(f) requires that an Applicant need only show "that the Applicant possesses or has reasonable assurance of obtaining the funds c.ecessary to cover the estimated costs of operation of the period of the license or for 5 year:, whichever is greater, plus the estimated costs of permanently shuttng the facility down and main-taining it in a safe condition.
It is noted that a rulemaking to
(,hange 10 C.F.R. 6 50.33(f) is pending. See 46 Fed. RS. 41786 (August 18,1981).
20 -
subject matter in the proceeding. Peach Bottom, supra, at 20; Cf
- Zion, supra, at 420-422.
Contention 18 In this contention SMP raises the issue of the adequacy of the emergency plan for the Maine Yankee Atomic Power Station.
SMP, in essence, is contending that the Applicant's evacuation plan is inadequate.
This contention is essentially related to the operation of the plant as a whole and not the spent fuel pool.
It is not an appropriate contention in a spent fuel pool modification proceeding. s See Zion, supra, at 426.
Moreover, the contention as written fails to meet the specificity and basis requirements of 10 C.F.R. 9 2.714. The only basis asserted by SMP for this contention are the conclusory statements that licensee's proposal will worsen the consequences of an accident and shorten "the time period between loss of cooling function and exothermic reaction in the spent fuel pool." Moreover, SMP has failed to identify the particular accident it believes may cause the asserted loss of cooling or criticality.
Salem, supra, at 35.
Accordingly, the Staff opposes admission of this contention.
l l
l l
i i
,n.
a.
21 -
IV. CONCLUSION The Staff does not oppose the admission of SMP's Contentions Nos. 5, 9,11(aslimitedabove),13and16. The balance of SMP's proposed contentions should be excluded from this proceeding.
Respectfully submitted.
Edwin J. Re s Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 26th day of October,1981.
4 i
+
.-v,w,,
.-,ry.,r-e e
arr
- ~rm,.w-v-
- v e y-r c--e-er-w
- - ~w-e
-w.--
UlilTED STATES OF N4 ERICA HUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
MAINE YANKEE ATOMIC POWER C0f!PANY Docket No. 50-309 (SpentFuel)
(Maine Yankee Atomic Power Station)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO CONTEt;TIONS FILED BY SENSIBLE MAINE POWER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, nr, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 26th day of October,1981:
Robert M. Lazo. Esq., Chairman
- Administrative Judge Rufus E. Brown Atomic Safety and Licensing Board Deputy Attorney General U.S. Nuclear Regulatory Connission Department of the Attorney General Washington, DC 20555 State House Augusta, ME 04333 Dr. Cadet H. Hand, Jr.
Administrative Judge and Director, Bodega Marine Labor.. tory David Santee Miller University of California Counsel for Petitioner P.O. Box 247 213 florgan Street, N.W.
Bodega Bay, CA 94923 Washington, DC 20001 Peter A. Morris
- Administrative Judge Atomic Safety an( Licensing Atomic Safety and Licensing Board Board Panel
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Comaission Washington, DC 20555 Washington, DC 20555 Thomas Dignan, Esq.
Atomic Safety and Licensing Ropes & Gray Appeal Board
- 225 Franklin Street U.S. Nuclear Regulatory Comnission Boston,1%
02110 Washington, DC 20555 Stanley Tupper Docketing and Service Section*
Tupper & Bradley Office of the Secretary 102 Townsend Avenue U.S. Nuclear Regulatory Connission Boothbay Harbor, ME 04533 Washington, DC 20555
-l,
David Colton-Manheim-.
i Box #386 Bedford's Barn i-Gouldsboro. Maine 04607 4
4 L
c-M
~
i Edwin J. Reis Assistant Ch ef Hearing C unsel-i l
4 i
a f
i i
i L
h I-4 i'
i j
4 I
~
f a