ML20040C034
| ML20040C034 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 01/19/1982 |
| From: | Ahrens P, Brown R MAINE, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8201270189 | |
| Download: ML20040C034 (33) | |
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NUCLEAR REGULA705Y'y AMERICA
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/r E5 BEFORE THE ATOMIC SAFETY AND LICENSING BO ARD In the Matter of
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MAINE YANKEE ATOMIC POWER COMPANY
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Docket No. 5 0- 30 9 -O L A
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(Spent Fuel)
(Maine Yankee Atomic Power Station)
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STATE OF MAINE RESPONSE TO OBJECTIONS TO ITS AMENDED CONTENTIOMS FILED BY LICENSEE AND NRC STAFF BACKGROUND Maine Yankee Atomic Power Company (the " Licensee") has filed with the Nuclear Regulatory Commission a request to enlarge its
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spent fuel storage capacity to enaole it to store on-site all spent fuel generated during the life of the facility.
In response to a Supplemental Notice of Proposed Issuance of Amendment to Facility Operating License published in the Federal Register on January 28, 1981, the State of Maine filed its Petition to Intervene on February 26,j1981.
Pursuant to an go3 y
Order of the Atomic Safety and Licensing Board dated Jure 22, 1981, the State of Maine supplemented its Petition to Intervene with a list of contentions which it sought to have litigatei and 8201270189 820119 PDR ADOCK 05000309 G
a the bases for each contention.
After a prehearing conference i
was held in Wiscasset, Maine on August 11, 1981, the Licensing Board issued a Prehearing Conference Order, dated August 24, I
1981, in which it adopted a schedule for the filing of Amended Contentions.
On October 5, 1981 the State of Maine filed its j
Amended Contentions and the bases for each Amended Contention.
l On December 30, 1981, the Atomic Safety and Licensing Board denied a request filed by the State of Maine to issue a notice i
and order scheduling a second prehearing conference and ordered the State to file a written response to objections to its amended contentions filed by the Licensee and the NRC Staff.
The State of Maine hereby submits its response and renews its request for a prehearing conference.
INTRODUCTION Commission rules require that a petitioner ".
shall file a supplemrat to his petition to intervene which must include a list of the contentions which petitioner seeks to have litigated in the matter and the~ bases for each contention set forth with reasonable specificity."
10 CPR S2.714(b).
As the record will show, the Amended Contentions submitted by the State of Maine more than satisfy the criteria set out in 10 CFR S2.714(b) and applicable Commission case law interpreting that section.
Because most of the arguments raised by the NRC Staff and the Licensee in their responses to the Amended Contentions of the State of Maine, filed October 26, 1981 and October 13, 1981, respectively, go to the merits of each 4
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contention, rather than to the issue of whether the contentions are admissible, the State of Maine will spell out the Commission's requirements for the admissibility of contentions and then apply those requirements to each contention submitted Inr the State of Maine.b!
REQUIREMENTS FOR CONTENTIONS The Commission (and its predecessor, Atomic Energy Commission) on a number of occasions has spelled out its interpretation of the requirements set out in 10 CFR S2.714(b) in order for contentions to be accepted.
One of the earliest decisions detailing intervention requirements is Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and
- 2), ALAB-130,'6 AEC 423 (1973) in which the Atomic Safety and Licensing Appeals Board found adequate a contention to the effect that "the alternatives of conserving electricity or utilizing other methods of producing energy have not been adequately considered."
The basis for the centention was stated at the prehearing conference to be ".
. that the amounts expended by the applicant on advertising greatly exceeded (by a factor of 11) that devoted to research and development, and that (petitioner's counsel) intended 'to introduce evidence that l
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It is important to point out that the issue in this proceeding is now centered on the admissibility of contentions pursuant to 10 CFR S2.714(b) and not on any Motions for Summary Disposition (S2.749) or rulings on evidentiary matters.
As will be demonstrated in the State's discussion of the requirements for contentions, the difference between the issues is significant. -_____
there are geothermal sources in the Middle South Utilities System area that could be utilized'."
6 AEC at 426.
The Appeals Board agreed with the Licensing Board that the petitioner had provided an adequate basis for the contention and had complied with S2.714 (b) : "given this particularization, the contention is adequate."
6 AEC at 426.
In responding to challenges by both the NRC staff and the applicant, the Appeals Board stated:
at the risk of undue repetition, we stress again that, in passing upon the question as to whether an intervenor 4
petition should be granted, it is not the function of a licensing board to reach the merits of any contention contained there.
Moreover, Section 2.714 does not require the petition to detail the evidence which will be offered in support of each contention.
Grand Gulf. 6 AEC at 426.
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One year after its decision in Grand Gulf the Appeals Board gave further guidance with regard to what it deems to constitute compliance with S2.714(b) in order for contentions to be admitted.
Philadelphia Electric Company, et al.
(Peach Bottom
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Atomic Power Station, Units 2 and 3), 8 AEC 13 (1974).
The Appeals Board stated:
"At the very least, for the purposes of l
intervention a petition must be adequate to j
show that it applies to the facility at bar and6 that there has been sufficient foundation assigned for it to warrant i
further exploration.And the greater the particularity of the contentions to permit a l
conclusion that there is in fact a genuine i
issue, the better.
But this does not mean that Section 2.714 should be turned into a l
fortress to deny intervention because the l
basis for even one contention appears to be l
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lacking, even though as a result of a reasonable appraisal there would appear to be sufficient sepecificity and basis to warrant further prehearing exploration in connection with the facility to be licensed. (emphasis added) Peach Bottom, 8 1
AEC at 20.
The Appeals Board in Peach Bottom also touched on the difference between rulings on admissibility of contentions and subsequent rulings:
the body deciding an intervention question should not blind itself to reality
- the denial of intervention may well close the door to further administrative relief, while granting an intervention merely sets in motion the next steps in the prehearing process which are designed to assure that a genuine issue in fact exists which warrants an evidentiary hearing."
(emphasis added)
Peach Bottom, 8 AEC at 21.
The Appeal Board in Peach Bottom further spelled out what.it believed to be several purposes for the basis-for-contention requirement in Section 2.714:
(1) to assure at the pleading stage that the hearing process is not improperly invoked, such as would occur if a contention were an attack on statutory requirements; (2) to assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose; and (3) to assure that the proposed issues are proper for adjudication in the particular procecding.
Recent decisions by Appeals Boards and a Licensing Board leave no doubt that the Commission is still guided by the,.
principles set forth in Grand Gulf,
! everal such S
supra.
decisions have provided an in-depth review of the appropriate interpretation of S2.714 (b) :
Duke Power Company, _ infra;'Allens Creek, infra; and Byron, infra.
In Duke Power Company (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 (1979), the Appeals Board rejected the NRC Staff argument and a Licensing Board decision which had denied admission of a contention because it was not specific and it lacked an assigned basis.
The contention at issue in the case asserted, without elaboration, that local public safety officials were not adequately prepared to deal with an emergency situation whien might resul.t'in the event of a traffic accident involving a reactor-waste carrier.
The Appeals Board found the contentionspecific enough:
Rejecting this contention for lack of specificity flies in the fact of its plan language."
9 NRC at 151.
Even though the Appeals Board recognized that the petitioner "did not go on to establish that its assertion is well-founded in fact,"
9 NRC at 151, the Appeals Board ruled, 2/
P.oard decision in Grand Gulf came December 30,The Comm 1981 in Texas Utilities Generating Co., e t a l. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, where the Commission reiterated that "all an intervenor need do to support admission of a contention is set forth the basis for the contention with reasonable specificity," citing Grand Gulf.
The Commission in Comanche Peak, supra, again indicated the differences between Motions for Summary Disposition and motions to admit contentions when it states, "given the availability of summary disposition procedures, the admission of a contention does not automatically require ex Comanche Pploratf on of that. contention at hearing. "
k, S.ip op, at,
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"as we have had occasion to emphasize through the years, whether a particular concern is justified must be left for consideration when the merits of the controversy are. reached."
Duke Power Company, 9 NRC at 151.
In Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB 590, 11 NRC 542 (1980), the Appeals Board reversed the Licensing Board and accepted as litigable a contention claiming the environmental superiority of a marine biomass form to the Allens Creek nuclear facility.
The NRC staff argued, and the Licensing Board so ruled, that the contention was without basis, that the petitioner was required not merely to allege that that alternative would be environmentally preferable but also to explain why that is so.
The Appeals Board responded: "That view cannot be squared with our 1973 decision in Grand Gulf, ALAB-130.
Allens Creek, 11 NRC at 547.
The Appeals Board continued:
"The short of the matter is that, just as the staff unsuccessfully endeavored to do in Grand Gulf, the Board below erroraously imposed upon a petitioner for intervention an obligation that, in actuality, arises only after the petitioner has become a party to the proceeding.
More specifically, all that was required of (petitioner) on the petition level was to state his reasons (i.e.,
the basis)-for his contention that the biomass alternative should receive additional consideration.
That responsibility was sufficiently discharged by his references to Project Independence and his assertion respecting the environmental superiority of a marine biomass farm." (emphasis added), Allens Creek 11 NRC at 548-49.
As in Peach Bottom, supra, the Appeals Board in Allens Creek
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noted the difference between rulings on admissibility of contentions and later rulings 'after the petitioner has become a party to the proceeding."
As the Appeals Board emphasized in Grand Gulf, "it is not the function of a licensing board to reach the merits of any contention." (emphasis added),
6 AEC at 426.E!
It should also be pointed out that a Licensing Board is not restricted in its ability to accept contentions conditionally.
The State of Maine believes that it has complied fully with the literal language of section 2.714(b) and the Commission's caselaw interpreting that section.
However, previous Commission decisions have gone beyond the literal reading of that section in order to allow contentions - at this initial stage of the 3/
"There is no room to doubt that Grand Gulf has been adhered to over the years, and that an intervenor is not required in its pleadings to establish that its assertion is well-founded in fact."
Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), 12 NRC 683, 688 (1980).
The Licensing Board in Byron, supra, just over one year ago applied the principles articulated in Grand Gulf, supra, Peach Bottom, supra, and Allens Creek, supra, in its decision concerning the admissibility of a revised list of 146 Contentions filed by the Rockford, Illinois League of Women Voters.
The Licensing Board explained its understanding of the " legal principles regarding contentions" at 12 NRC 683, 686-89.
The Board pointed out that $2.714(b) "is for the purpose of framing the issues which will be the subject of subsequent discovery and proof in an evidentiary hearing. "
12 NRC at 687.
The Licensing Board in Byron clearly stated the principle learned from previous cases:
"It is clear that a contention need not plead evidence to provide the basis for an allegation, and that the merits of an issue are not to be considered at the pleading stage."
(emphasis added), Byron 12 NRC at 688.
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proceeding - to be admitted subject to conditions.
For example, in one of its decisions involving the TMI Restart Proceedings, Three Mile Island Nuclear Station (Unit 1), CCC 130,620 (August 27, 1981), the Board noted that it "was liberal in allowing initially some contentions which were marginal as to basis and specificity and which did not adequately put licensee and the staff on notice of the matters which needed to be addressed in testimony.
These contentions were allowed subject to the qualification that further basis and specificity could be obtained by the licensee and staf f through discovery."
CCH 130,620.9 at p.
29,951.
In Byron, supra, 12 N3C at 696, the Licensing Board admitted a number of contentions " subject to later refinement and specification when the additional information has been furnished or the relevant documents had been filed," and others " subject to subsequent updating, refinement and clarification."
The Licensing Board in Byron also exercised its authority by rephrasing certain contentions, e.g.,
those relating to quality assurance and quality control, where the Board found "these contentions.
too broad and diffuse to put in issue properly the questions of the applicant's ability and willingnecs to comply with the Commission's quality assurance requirements"; the Board redrafted such contentions on its own, labeled them " revised contention lA," and ruled "aslthus revised, contention lA is admitted."
Byron, supra, at 690-91.
The State recognizes that Licensing Boards do not have a duty to recast contentions to
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o make them acceptable, Commonwealth Edison Company (Zion Station, Units 1 and 2), 8 AEC 381, 406 (1974), but that is not to say Licensing Boards do not have the authority to repharase
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l contentions.
See Byron, sopra.
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'In summary, based on the literal language of S2.714(b) and i
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the decisions which have interpreted that section, the State of Maine firmly believes that each of its contentions is admissible at this sta' e of the proceeding.
If either the Licensee or the g
NRC Staf f. disputes the merits of any contention, it can move for 4
Summary Disposition or a decision on the merits.. But for 1
purposes of rulings on admissibility of intentions, the merits of the contentions are not at issue.
Each of the State's contentions are. legally admissible pursuant to S2.714(b).
APPLICATION OF S2. 714 (b) AND COMMISSION CASE LAW TO AMENDED CONTENTIONS OF THE STATE OF ~ MAINE CONTENTION NO. 1 - THE REQUIREMENT FOR AN EISA!
4 Both the NRC staff and the Licensee raise threshold j
objections to the admissibility of Contention No. 1 which alleges that the three methods proposed by Maine Yankee to increase the storage capacity of its spent fuel pool require the preparation of an environmental impact statement under the j
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The State of Maine filed its Amended Contentions on October 5, 1981.
Rather than reproduce each contention and its basis seriatum under the appropriate heading, and thus add-23 pages to this Response, we have j'
contentions.
We respectfully request that the State's attached hereto a copy of the October 5, 1981 Amended Contentions be reviewed in conjunction with the 4
state's responses to the objections filed by_the licensee and the NRC Staff.
i i _. _,. _ _ _. _ - _ _
National Environmental Policy Act ( "NE PA") and 10 CFR Part 51.
These objections will be addressed before responding to the specific objections raised by both the Staff and the Licensee to the four subcontentions (Contentions la through ld) which together comprise Contention No.
1.
The Staff's position is that "(t)he allegations of the State of Maine on the need to prepare an en'vironmental impact statement are premature when the Staff have not yet prepared an environmental impact appraisal," citing as its authority Consumers Power Company (Big Rock Point Nuclear Plant), 13 NRC 312, 330 (1981).
NRC Staff Response at 7.
The Staff apparently misunderstands the holding in Big Rock.
In that case the Appeals Board ruled that the Licensing Board decision to require the preparation of an EIS was premature because "the Board had no ' reco rd ' upon which to support its finding of significant impact because the staff has yet to prepare an EIS or any other environmental document."
13 NRC at 330.
Neither the Appeals Board nor the Licensing Board ruled that the contention filed by the intervenor was " premature," even though filed prior to the preparation of an EIA.
Indeed as recently as two months ago the Appeals Board in Florida Power and Light Company (Turkey Point Nuclear Generating, Units Nos. 3 and 4), ALAB-660 (decided November 30, 1981) made reference to a contention which claimed that an EIS was required and which was admitted by the Licensing Board prior to any determination by the Staff that it would or would not need to prepare an EIS.
Turkey Point, Slip op. at 6-7.
Therefore the Staff is simply wrong on the law to suggest that the State's Contention No. 1 is " premature" as a matter of law.
Moreover there are equally dispositive practical responses to the Staff's prematurity argument.
If the Licensing Board should adopt '.he position that no contention is valid when the Staff or the Licensee might satisfy concerns raised by intervenors at some later point on the proceedings, the entire adjudicatory process would be rendered circuitous and chaotic.
Moreover, the fact of the matter is that the Staff has not suggested the slightest possibility that an EIS will be prepared in this case.-
Indeed to our knowledge the NRC Staf f has vigorously opposed the need for an EIS in every single adjudicatory application for an expansion of a spent fuel pool and its technical staff has been criticized for preparing EIAs for such applications on a perfunctory basis.
Commonwealth Edison Co.
(Zion Station, Units 1 & 2), 11 NRC 245, 250 (1980).
In the unlikely event that the staff does prepare an EIS, then, as in Turkey Point, our Contention No. 1 would be rendered moot.
The Licensee's threshold objection to Contention No. 1 is different, indeed the very antithesis of the Staff's position.
The Licensee argues that the regularity with which similar contentions have been denied on the merits in past adjudications should lead this Licensing Board to rejet this contention as a matter of law, taking " official notice" of the lack of environmental affects of fuel pool expansions.
Licensee Response at 3-6.
The Licensee concedes that this proposition has never been adopted by any NRC adju'dicatory decision, as well. _.
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it should given the holding of Big Rock that the issue of whether an EIS is required is a factual one to be developed on the record. The Staff appropriately disagrees with the Licensee's position (see NRC Staff Response at 11, n. 5) and the State joins in all the' reasons given by the Staff for its objections, including the point that the Maine Yankee application has-features not present in other fuel pool expansion applications.
CONTENTION la - TOTAL OR PARTIAL LOSS OF COOLANT The NRC Staff challenges all four subcontentions, including contention la which addresses.the environmental consequences of the proposed pool expansion in the event of a total or partial loss of coolant at the spent fuel pool, on the grounds that the State " relies entirely on unsupported assertions."
NRC Staff Response at 7.
This sweeping objection is meritless because it misconstrues Commission case law interpreting S2.714.
Section 2.714 simply "does not require the petition to detail the evidence which will be offered in support of each contention."
Grand Gulf, supra 6 AEC at 426.
To reject contention la or any other of the State's contentions on the grounds asserted by the Staff would contradict everything the NRC adjudicatory bodies have said about the requirements for contentions -- viz. the Licensing Board is just not allowed to address the merits of a contention in determining its admissibility.
Allens Creek, supra, 11 NRC at 546 - 551. - - _.,.
The only other point the Staff raises about Contention la is that the-State has " failed to address the credibility" of a loss of coolant accident, referring to Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650 (decided July 17, 1981) and Zion, supra, ALAB-616, 12 NRC 419 (1980).
NRC Staf f Response a t 8.
In response to this objection, the State invites the Licensing Board to re-read Contention lb.
The basis for this contention runs over two pages, describing in great detail the reasons for the State's concerns..
We find it inconceivable that the Staff would pick out one aspect of that basis statement and challenge its
" credibility" as a grounds for rejecting the contention.
Surely _
the credibility of our concerns must be reserved for later portions of the proceedings addressing the merits of this contention.
Moreover, the loss of coolant issues were not rejected at the contention stage in Salem or Zion, as the Staff's Response would suggest.
Indeed the issue was raised by the -Licensing Board itself in Salem and the Appeals Board in that case accepted most of the grounds which form the basis of the State's contention.
In both cases the issues were eventually dismissed on a factual basis, in Salem in part because the intervenor's witness was ill-organized and difficult to follow, and in Zion, in part because the intervenor's witness seriously contradicted himself.
The Licensee's objections to Contention la are equally without merit.
The Licensee objects because the first category of the mechanisms that could initiate a loss of coolant accident (a reactor core melt accident) is said to be a " class 9 accident."
Licensee Response at 7.
However, Maine Yankee knows full well that the Commission has unequivocally rejected this label as a reason for rejecting an environmental and safety analysis.
"The classification of accidents shall no longer be used."
Nuclear Power Plant Accident Considerations Under The National Environtaental Policy Act of 1969, 4 5 Fed. Reg.
40101, 40102 (June 13, 1980).
Similarly the Licensee objects that second category of initiating mechanisms for a loss of coolant accident (accidents leading to a breach of the pool) may not be relitigated.
However, the State does not propose to relitigate the issues addressed and resolved in the original licensing of Maine Yankee.
The issue is whether the environmental implications of the proposed license amendment are sufficient to warrant an EIS.
That is what Contention la addresses and all it addresses.
Just because a potential accident was considered in
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connection with the construction permit or operating license does not mean that the same accident should be foreclosed when it raises new and independent concerns in reference to a license amendment.
Finally the Licensee asserts that the State is "just plain wrong" in its contention that the proposed licensee amendment will increase the probability of the occurrence of a release of radiation or radioactive materials into the environment in the event of a loss of coolant accident. Licensee Response at 8.5!Whether the State's contention is " false," as the Licensee so blithely asserts, most await at least the Summary Disposition stage.
To the extent that the Licensee is arguing that the mechanisms that might initiate a loss of coolant accident are not increased in probability by the licensee amendment, we might agree.
But that misses the point.
What contention la addresses is the risk of probability and consequence of release of radiation or radioactive material in the event of a loss of coolant accident.
With respect to that issue, which is the only one raised in Contention la, it is clear from Salem above that the proposed amendment will directly increase the risk.
CONTENTION lb - PIN COMPACTION Both the Staff and the Licensee object to this Contention lb on the ground that it only asserts that pin compaction is new technology, which is said to be an insufficient reason to prepare an EIS.
NRC Staff Response at 8-9; Licensee Response at 8-9.
Both seriously mischaracterize the contention, perhaps out of a concern about its merits if fairly considered.
The basis statement for the contention contains a long list of reasons why t he technology of pin compaction raises unknown and serious environmental and safety risks, which the State believes it should be allowed to be proved in an evidentiary hearing.
The second part of the basis explains the precedential nature of 5/
Note should be made that the. Licensee does not challenge the contention that a loss of coolant accident will increase the consequences of such an accident. _ _ _ _ _ _ _ _ _
this proceeding.
Both considerations require the preparation of an EIS under the CEQ regulations (see 40 CFR S1508. 27(b) (5) and (6) defining "significantly" and 40 CFR S1508.18 defining
" major" actions in terms of the definition of "significantly"),
which must guide the Licensing Board.
10 CFR SSl. 51(b) ; Andrus v.
Sierra Club, 442 U.S.
347, 358 (1979); Turkey Point, supra.
CONTENTION lc - USE OF THE CASK LAYDOWN AREA Both the Staff and the Licensee challenged Contention 1c on the grounds that the Licensee is correct in its factual assertion that the cask laydown area will only be used temporarily for fuel storage and that the State is factually incorrect in contending that this may turn out to be permanent and irretrievable.
Staff Response at 9; Licensee Response at 10.
In response we can only repeat that this objection ignores the literal language of S2.714(b) as well as the Commission case law interpreting that section.
Whether or not the use of the cask laydown area will be temporary or permanent is surely a factual question to which, at this stage, the State is not required to offer actual proof.
CONTENTION ld - IDNG TERM OR PERMANENT S'IORAGn JSSUES The Staff objects to Contention Id, which contends that the Licensing Board should examine the environmental impacts of long-term or permanent storage of the increased amount of spent fuel to be stored at Maine Yankee as a result of the license amendment, on the ground that the Commission has said that this issue should not be addressed in individual proceedings.
- See, NRC Staff response at 10, referring to the Notice of Proposed Rulemaking on Storage and Disposal of Nuclear Waste, 44 Fed.
Reg. 61372, 61373 (October 25, 1979).
The Licensee raises the same objection.
Licensee Response at 10-11, referring to Salem, cupra, and Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451 (1980).
The State's response is that the Notice of Rulemaking which forms the basis of both objections is just that.
It is not a rule or a regulation and therefore Contention ld does not challenge a rule or a regulation.
Rather the State asserts the right to demonstrate why, in the specific and unique circumstances of this case, the Licensing Board should examine this important environmental issue.
CONTENTION 2 - IDSS OF COOLANT In Contention 2, the State raises the same issue addressed in Contention la concerning the impact of the license amendments on the risks of a release of radiation or radioactive materials into the enviroment in the event of a loss of coolant accident.
In Contention 2 the issue is raised in a safety context under 3
the Atomic Energy Act and 10 CFR, Part 50.
The Staff's objection is that the contention is so lacking in specificity as to be deficient under $2.714(b).
Staff Response at 12-13.
However, the quickest reading of Contention 2, which incorporates the basis of Contention la, is sufficient to reject this objection.
The only new objection to Contention 2 raised by the Licensee, which was not made and rebutted with respect to _
i Contention la,. is that Contention la was an environmental issue i.
and therefore its basis cannot serve as a basis for Contention 2, which is a safety issue.
Licensee's Response at 12.
The State's response is that one-cannot, for purposes of this issue, separate environmental and safety issues.
The contentions are 1
separately stated because one (la) arises under NEPA while the other (2) arises under the Atomic Energy Act.
The basic concerns are the same.
Consideration of the loss of coolant issue.under the Atomic Energy Act is required for the Licensing Board "to carry out its fundamental responsibility; namely to satisfy itself whether the proposed. license amendment would unreasonably -af fect the public health. and safety. "
- Salem, supra, 11 NRC at 536.
CONTENTION 3 - CASK LAYDOWN AREA The objections raised by the Staff (at 13-14 of its i
Response) and the Licensee (at 13 of its Response) are the same j
as those raised with respect to Contention le and should be rejected for the same reasons.
OONTENTION 4 - LONG TERM OR PERMANENT STORAGE Like Contention ld, Contention 4 raises the issue of whether the Licensing Board should consider the long term or permanent storage implications of the proposed amendments.
The issue is raised in Contention 4 as a safety issue under the Atomic Energy Act.
Also Contention 4 differs from ld in that it requests the Licensing Board to exercise its discretion, in the unique 1
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circumstances of this case, to defer these proceedings until these same safety issues are resolved generically.in the Waste Confidence Proceedings.
Nothing in either the Notice of Rulemaking for these proceedings (44 Fed. Reg. 61373) or prior Appeals Board decisions precludes the exercise of this discretion.
The Notice only said that " licensing practices need not be altered." [ Emphases added].
The State's position is that there is ample justification in this case for the Licensing Board to defer even if it "need not" do so.
OD NTENTIO N NO. 5 - ALTERNATIVES Both the Licensee and the NRC Staff object to the State's contention on the grounds that it fails to provide an adequate basis.
' Licensee Response at 14-16; NRC Staf f Response at 15-17.
To the extent that they object to the lack of a factual basis they apply the test explicitly rejected by Grand Gulf; the State does not now need to provide the evidentiary support for the contention.
Certainly the Staff and the licensee are put on notice as to what to defend against or oppose.
Peach Bottom, supra.
Rather, both the Staff and the Licensee are attempting to apply criteria proper in a motion for Summary Disposition to a proceeding in which the Licensing Board is called upon to rule whether a contention is admissible.
The Staff cites North Anna, supra; Trojan, supra; and Duke Power Company (amendment to materials license SNM-1773), ALAB-651, 14 NRC-(August 10, 1981) as support to exclude Contention 5, but it omits one critical 9 _..
' fact: in each of those proceedings contentions regarding alternatives were accepted by the Licensing 30ards.5!The decision in North Anna, supra, was decided on a motion for Summary Disposition.
The decision in Trojan, supra, was apparently reached on the merits. See 9 NRC 263, 264-65).
The Duke Power Company case cited by the Staff involved an Appeal Board reversal of a Licensing Board decision that the Staff analysis did not comply with the requirements of the National Environmental Policy Act of 1969.
None of the three cases cited by the Staff is authority for the proposition that the contention put forth by the State of Maine is inadmissible.
Nor are the Staff or Licensee objections to the legal basis for Contention 5 valid.
No adjudicating board to our knowledge has excluded consideration of alternatives as a matter of law.
All have treated the issue as legally admissible to be decided on the merits or on Summary Disposition, as noted above.
Furthermore, the legal basis for this contention is set forth in full in the basis for Contention 5 above.
Alternatives must be considered under both sections 102(2) (C) and 102(E) of NEPA.
Furthermore, as recently pointed out by the Appeals Board, even if the Staf f properly determines that an EIS is not required, 40 CFR S1508.9 requires alternatives to be addressed in the Staff's EIA.
Turkey Point, supra, Slip op. at 29.
Finally, even apart 5/
The Licensee notes at 15 of its Response that the "NRC has no obligation to explore alternatives unless they are environmentally superior."
But how can alternatives be excluded unless evidence is admitted to determine if the alternatives are superior?
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from the environmental analysis, the State has properly alleged the need to address alternatives under the public health and safety standards of the Atomic Energy Act and 10 CFR Part 50.
A contention similar to the one proposed in this proceeding has been uniformly admitted in other proceedings.
The 1
contention complies with the literal language of S2.714(b) and Commission case law.
It should be admitted here.
CONTENTION 6 - PIN COMPACTION REQUEST IS PREMATURE In Contention 6 - the State contendo that the Licensee has not demonstrated any current need for approval of pin compaction in addition t'o reracking.
If reracking is approved by.he Licensing Board, the Licensee will be able to store spent fuel on-site until the mid-1990's.
Pin compaction is new, untested, and as yet unlicensed at any nuclear facility.
It may never be needed at Maine Yankee.The reason put forth by the State for its contention is that alternatives to pin compaction will be available to Maine Yankee by the mid-1990's.
Both the Department of Energy and the Commission are exploring dry storage as a means of spent fuel storage.
Dry storage is a newer technolcgy and initial results of testing in Germany are i
i already available.
At least until the Licensing Board considers further testimony to be submitted with regard to Contention 5 dealing with alternatives, Contention 6 should be admitted at this time.
4 The Staff's objection to Contention 6 is unfounded when it states that "in essence, the State of Maine is contending that approval o.f part of the Licensee's proposal should await the outcome of the waste confidence proceeding".
NRC Staff Response at 17.
Such a proposition is neither explicitly or implicitly raised by the State.
What we are concerned about is the licensing of a method of spent fuel storage well in advance of its need, especially when, as in this case, that method has never been tried before, is now being tested by the Department of Energy, and no further review may be possible if the method is now approved.
The L.censee merely states that there is no requirement that the applicant demonstrate the "need" for a license amendment.
Licensee Response at 17.
However, Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and l
- 2), ALAB-277, 1 NRC 539 (1975) ruled that, given appropriate circumstances, a Licensing Board may defer evidentiary hearings on a portion of a license amendment application.
In that case-the Appeals Board set out several factors to consider:
whether early findings on an issue would retain their validity, whether the public or the litigants are-advantaged by an early i
resolution, and whether the litigants would be prejudiced if later developments caused a reopening of the issue.
The State of Maine suggests that each of the factors enunciated in Douglas Point weights in favor of supporting the State's contention on f
the merits.
However since all that is at issue now is whether the State's contention is admissible, without any consideration 4
. _., _ _. -. _. _. _ _ _ _. - -..._ _ ~
of its evidentiary support, the State believes that Contention 6 is clearly admissible, j
CONTENTION 7 - K-EFFECTIVE Although the NRC Staff and the Licensee oppose admission of Contention 7, both concede that an NRC regulatory guide and l
l industry practice require assurance that K-effective be less than.95.
The Licensee in fact acknowledges that.95 is a
" limit".
See Maine Yankee " Complete Report" (October 5, 1981),
S3.0, Nuclear Considerations, at 4.
Apparently the only basis for objection to this contention is that the NRC has failed to adopt such a standard by regulation.
Contrary to the implications of the objections put forth by the Licensee and the NRC Staff, no case has held that-only contentions referring to NRC regulations are admissible.
l l
The contention properly addreses a safety issue cognizable under i
the health and safety standards of the Atomic Energy Act and is clearly admissible.
CONTENTIOr 8 - SWELLING The State is concerned that the Licensee has not properly taken into consideration the swelling of the rack walls that will result from the production of hydrogen gas from the corrosion of boral.
The State indicated in its October 5, 1981 submittal of contentions how the boral corrosion can occur and what the results will be.
The standards" with which the State
" __._u_
.___.-_.-:-______.a-
r is concerned are those relating to releases of radiation to the environment.
See Zion, supra, 12 NRC at 420.
Both the Staff and the Licensee object to Contention 8 on the grounds that it is not specific and does not contain a
. basis.
NRC Staff Response at 18-19; Licensee Response at 17.
The State suggests that the basis for this contention is clearly spelled out on pages 15-16 of its Amended Contentions submitted on October 5, 1981.
The basis provided therein more than satisfies the requirements of S 2.714(b) and Commission case law interpreting that section.
Also the citation used by the NRC Staff to support its conclusion that the contention is inadmissible -is inapposite.
The Staff cited Salem, supra as its support; however, a contention dealing with swelling was admitted in that proceeding but was defeated on the merits.
A similar contention was also admitted in Zion, supra, and Dresden, (September 24, 1981), Slip op.
CONTENTION 9 - RESTRICTED OOOLANT FLOW Both the NRC Staff and the Licensee agree that Contention No. 9. satisfies the requirements of S2.714.
The contention should be admitted.
CONTENTION 10 - CAS K DROP If a spent fuel shipping cask were to fall or tip onto spent fuel in the storage pool, the spent fuel could be' ruptured leading to a release of radioactivity to the environment and.
1 radiation over-exposure to in-plant personnel in violation of 10 CFR Part 20.
The State specifically cited possible violations of ALARA, criticality and degradation of the decay heat removal system capability as bases for Contention 10.
The Staff opposes the Contention on the grounds that "the Licensee will not move a spent fuel shipping cask over the Maine Yankee spent fuel pool."
NRC Staff Response at 19.
Also see Licensee Response at 18.
The Staff and Licensee thus object to the contention on a factual basis, a response deemed inappropriate by Grand Gulf and subsequent decisions.
There is clearly a basis for this contention; it is simply one that the Staff dinagrees with.
What the Licensee proposes to do is to store all the spent fuel for the life of the plant in its existing spent fuel pool but not analyze a possible cask drop until some undetermined time.
Spent fuel shipping casks exist now and the Licensee should be required to analyze the consequences of an accidental drop on the spent fuel pool following reracking and pin compaction for the reasons stated by the State in its October 5, 1981 submission of its Amended Contentions.
Alternatively, if the Licensee is now claiming that it will never place a shipping cask over the spent fuel pool, then the Licensee must analyze the consequences of such a. proposal.
The State is concerned with the possibility that if no current review of a cask drop is accomplished and at some much later time it is found to be unsafe to utilize a shipping cask at the pool, a de facto long term storage site at Maine Yankee may result.
The State is also
-2 6 -
concerned that an accidenta involving a cask drop may impede or prevent removal of defective fuel rods or assemblies.
The contention as drafted should be admitted.
CONTENTION 11 - PROCEDURES In Contention 11 the State raises the concern that the Licensee has failed to identify, describe or analyze the specific procedures it intends to use to implement its reracking proposal.
The State is at a loss to know how the Commission can determine that the license amendment proposals by Maine Yankee will be held to comply with 10 CFR Parts 20 and 50 if the applicant has not yet stated the precedures it intends to use.
The State has spelled out the minimum procedures which must be identified, described and analyzed by the Licensee.
The State of Maine Amended Contentions, supra, pp. 17-18.
In fact it seems difficult to see how the contention can be much more specific without writing out the procedures to be followed by the Licensee.
The Licensee states that it is not told why the expansion of the spent fuel pool will require any changes in the radiation monitoring program or the quality assurance program.
Licensee Response at 19.
However, how can the Licensee convince the Board that no change is necessary when the Licensee has failed i
to spell out the procedures it intends to follow?
It is analogous on a larger scale to a Licensee filing with the Commission a requent to expand its spent fuel storage capacity j -.,
-~
r without explaining how it intends to so expand.
Once Maine Yankee has specified the procedures it intends to employ to carry out its proposed reracking and pin compaction methods, the contention may be withdrawn by the State or may be subject to being dismissed.
Until then, however, the contention is admissible undr S2.714 and applicable Commission case law.
CONTENTION 12 - MONITORING PROCEDURES Despite the NRC Staf f's objections that the term " monitoring procedures" is vague, (NRC Staf f Response at 20),
the Licensee understands exactly what the contention deals with.
See Licensee Response at 20.
Assuming the truth of the matters n
assered in the State's contention,2!the Licensee responds that "all this means is the alarms will.go off sooner and more often."
Applicant's Response at 20.
The Licensee further states that the pool expansion'will not require new monitoring hardware or monitoring procedures.
It is precisely this sort of assertion that must be left to a decision'on the merits or a decision in response to a motion for summary disposition.
It is not appropriate, at this stage of the proceedings, to rule that the contention is inadmissible.
CONTENTION 13 - POSTULATED ACCIDENTS The State asserts in Contention 13 that releases of radiation or radioactive materials from normal and postualted accident conditions previously considered in the PSAR for the operating license will be increased in probability and consequence as a result of the proposed modifications.
The State further contends that the Licensee has not reconsidered such accident conditions and therefore has not provided adequate assurance that it will teet existing NRC regulations and_ that the health and safety of the public will not' be endangered.
2/
Such an approach is proper.
For example, see Turkey Point. supra, at page 34:
"Thus, taking everything in l
the contention as true and provable, i -
~
The Staff claims that the contentions should be rejected because "it is completely devoid of any basis."
citing Zion, supra at 224 (sic) and Salem, supra, at 34-35.
NRC Staff Response at 21.
Once again the Staff has cited two cases for the proposition that a contention should be ruled inadmissible when in fact both cases involve a similar contention, admitted under S2.714 but later rejected on the merits for failure of proof.
The Licensee objects to this contention on the ground that "the increase of spent fuel storage capacity will not increase the probability of any accident."
Licensee Respunse at 20.
First of all, such an assertion be tested after admission of the contention - Second, the statement ignores that aspect of the contention dealing with the increase in the consequences of an accident.
CONTENTION 14 - OCCUPATIONAL EXPOSURES (ALARA)
The Staff supports admission of this Contention and the Licensee notes that this Contention is one already admitted with regard to intervonor Sensible Maine Power.
This contention should be admitted.
CONTENTION 15 - SEISMIC INTEGRITY The State asserts in Contention 15 that the Licensee has not provided reasonable assurance that the integrity of the spent fuel pool walls and pool floor will be maintained at all times c
~
x during seismic disturbances when fully loaded with reracked pin compacted assemblies.
The NRC Staff supports this contention "to the extent it asserts that 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 the facility."
NRC Staff Response at 14.
The Staff correctly I
understands that the issue raised by the State is the integrity of the pool should the proposed amendments be approved.
The Licensee suggests that it would not object to a similar contention if worded as the Licensee wishes it to be worded.
Licensee Response at 21.
The State concurs with the interpretation put forth by the Staff and believes the contention is admissible pursuant to S2.714(b).
CONTENTION 16 - UNRESOLVED SAFETY ISSUES Contention 16 asserts that neither the Licensee nor the NRC Staff have addressed the extent to which unresolved generic safety issues will affect the proposed expansion of Maine Yankee's spent fuel pool.
The specific safety issues addressed are task numbers A-17, A-24, A-35, A-40, A-46, A-47, A-1, A-4, A-9, A-ll, A-12, A-43, A-44, A-45 and A-48.
Each of the safety
(
issues directly affects the proposed expansion of Maine Yankee's spent fuel pool.
Six of the tasks are described as directly affecting the proposed expansion; the reasons for the direct effect is spelled out by the State.
In addition, nine unresolved generic safety issues indirectly affect the spent
-__-__x__
fuel pool expansion.
The State contends that each involves safety concerns which may cause or exacerbate a reactor accident.
Such issuas are relevant to the present proceeding because a reactor accider.t is one cause which may prevent access to the spent fuel pool resulting in the loss of coolant.
The Licensee objects to the contention on the grounds that it does not provide a basis.
Licnesee Response at 21.
The Staff cites Salem, supra, as its support for the argument that the contention is inadmissible.
NRC Staff Response at 23.
Once again the State points out that thie involved a decision on the merits and not a ruling on admissibility of contentions.
The second case cited by both the Licensee and the Staff is Gulf States Utilities Company (River Bend Station, Units 1 and 2),
A:AB-444. 6 NRC 760 (1977).
However, River Bend, together with Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), ALAB-611, 12 NRC 611 (1980) and Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2)ALAB-491, 8 NRC 245 (1978) all stand for the proposition that the record in every licensing proceeding must contain sufficient information converning each unresolved generic safety issue affecting the operations of the facility that are the subject of the proceedings in order for the adjudicatory boards to fulfill their respective responsibilities under the Commission's regulations.
The record in this case is silent and therefore deficient.
e CONCLUSIO N Each of the State's Amended Contentions complies with S2.714(b) of the Commission's regulations and with Commission case law interpreting that section.
Each of the State's contentions should be admitted.
Respectfully submitted, JAMES E.
TIERNEY Attor ey
'e Dated:
January 19, 1982 j
5/c m _ __
RUFUS E.
BROWN Deputy torney General
{f JLAAW PHILIP 31 ENS" Assistant Attorney General
\\
State House, Augusta, Maine 04333 Tel.
207-289-3661 Counsel for State of Maine l