ML20040D818
| ML20040D818 | |
| Person / Time | |
|---|---|
| Site: | Maine Yankee |
| Issue date: | 01/24/1982 |
| From: | Miller D MILLER, D.S., SENSIBLE MAINE POWER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OLA, NUDOCS 8202020283 | |
| Download: ML20040D818 (24) | |
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9 UNITED STATES DUCLEAR EGULATORY C,0WfSSI J a d, ECEjpg.g 'Q j 7' FEB1 1982en ama,, f$[l7 ATOMIC SAFETY AND LICENSIhG BOARD 6
'TTT'R In the Matter of
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Docket ho. 50-309-0
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MAINE YANKEE ATOMIC POWER COMPANY,
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To Increase and Mooify
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(Maine Yankee Atomic Power Station),)
Spent Fuel Storage and
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Applicant.)
Systems; Compaction IhTERVENOR'S RESPONSE TO STAFF AhD APPLICANT OBJECTIONS TO INTERVENOR'S CONTENTIONS Pursuant to an Order by this Board on December 30, 1981, allowing Intervenor Sensible Maine Power, ("SMP"), and Petition-er State of Maine,
(" Maine"), fifteen days to respond to objec-tions to contentions filed by NRC Staff Counsel,
(" Staff"), and by Applicant Maine Yankee, (" Applicant"), SMP hereby propounds the instant response.
==
Introduction:==
Including Standards of Admissi-bility for Contentions, Procedural History, and Related Considerations:
I.
First and of primary import, and generally avoided by both Applicant and Staff, is the unique qualitative and quantitative nature of the changes proposed by Applicant.
S4P here incorpor-ates by reference the " Introduction" of its Contentions of October 5,1981, and summarizes the same, specifically:
(1) Applicant seeks a use of its spent fuel pool never contemplated in design or p$ d s
construction; (2) Appl' cant seeks to store a volume of high-level radioactive waste more than eight
+4 es that which was originally h
o C
approved, and to do so by altogether unprecedented and undemonstra-ted means; and (3) Applicant seeks the approval of such changes under conditions indicating that there are no guarantees whatsoever against this facility becoming a long-term nuclear waste dump.
In amplification of the unique changes proposed by Applicant, SMP urges that, unless Applicant can demonstrate an assurance that the spent fuel sought to be stored on-site will be removed-by or before some specific future date, then the instant application must be read as seeking approval of a long-term nuclear waste dump or repository, and not as an " amendment" for " expansion", both of which are misnomers that serve primarily to mislead.
Restating this issue by alternatives, Applicant should either identify its proposed storage as temporary, including a date for the termination of the same, or acknowleoge the long-term or indefinite nature of the changes actually being proposed, and proceed accorcingly.I In summary, then, SMP urges this Board to recognize the pend-ing application for what it is - a request by Applicant to pursue, by unlicensed, unprecedented, and as yet untried means, the estab-lishment of a long-term nuclear waste dump at its facility site in Wiscasset, Maine.
I Insofar as Applicant seeks to establish a permanent or long-term nuclear waste duap or repository, SMP suggests that the instant application does not properly embrace such activities, and that it should be redrawn so as to plainly and clearly reflect tne changes actually being pursued.
Additionally upon the misleading nature of Applicant's
" amendment" for " expansion", it should also be noted that Appli-cant's license does not currently contemplate the disassembly and/or reassembly of spent fuel bundles, assemblies, racks, or otherwise.
II.
While the Staff response to SMP's contentions devotes consi-cerable space to " Contentions Requirements", (Id., at 1-6), perhaps some reduction ano simplification could be pursued to common bene-fit:
A contention shoulc be admitted if it raises, upon reasonable basis and specificity, an issue upon which further inquiry is war-rantec, the consideration of which is not othrewise proscribed by the Commission's rules of practice.
The recognized goal, then, is one of sound notice pleacing, not a requirement of aetailed proffers of evidence or any other more attenuated considerations.
As the Appeals Board recognized in I
Houston Lighting and power Company (Allens Creek huclear Generating Station, Unit 1), 11 NRC 542 (1980), the question is not "whether (an intervenor) will be able to prove the assertions underlying the contention" but rather whether intervenor is to be afforded "the opportunity to do so." Id., at 542, 549.
Prior to specific application on a contention-by-contention basis, several corollary points upon standards for admissibility of contentions should be recognized.
II. A.
Both Staff and Applicant frequently attempt to assert fac-tual disagreement or an erroneously extended concept of " basis" as a means of inquiry into or challenge against what would be SMP's eventual proof-of-facts in support of its contentions.
It is es-tablished law that such sort of inquiry or challenge "is quite beside the point at this preliminary stage of the proceeding."
Allens Creek, ibid.
That both Applicant and Staff have asserted some factual disagreement with SMP's contentions is no bar to the admissibility of those contentions.
Similarly, while certain of SMP's contentions may have been.-..
e I
stateo without an extensive technical foundation, usually in-the interest of brevity, such simplicity does not render them per se inadmissible.
SMP urges that this Board consider the issues placed before it - however simply or plainly they mat have thus far been pled.
Last in these related consicerations, while it is true that this Boaru is under no duty to redraw a defective contention, yet it is equally and simultaneously true that SMP is entitled to a liberal construction of its pleadings at this preliminary stage of these proceedings, including the benefit of all reasonable impli-cations and inferences in the contentions presented.
II. B.
Staff has to date presented three responses to SMP's con-tentions: (1) In writing on June 11, 1980; (2) Orally, from a writ-ten statement, at a Prehearing Conference on August 11, 1981; and (3) Again in writing on October 26, 1981.
While these responses vary considerably, of which more later, it should be noted here that they share the similarity of asserting what might best be termed Staff's " Basis-Specificity" oefense, especially the more recent responses.
Staff's highly subjective use of these terms is easily demon-strated:SMP's fif th contention, consistently accepted by Staff from June 11, 1980, to the present, is much less completa or detailed t
than other contentions, opposed by Staff on its " Basis-Specificity" J
defense, in which contentions SMP has pled a substantial amount of concrete, credible evidence.
Staff would apparently have us all believe, and practice, that " basis" and " specificity" mean whatever Staf f says they mean -- and this without any detailed, specific, or
-4
responsible analysis of any kind on the part of Staff.
One is re-minded of certain children's games in which winning depends upon some magical combination of words - but we are here engaged in more than child's play -- and Staff's mere recitation of the words " basis" and " specificity" does not have any particular totemic or incanta-tive magic sufficient to exclude an otherwise admissible contention.
III.
Applicant's asserted defenses also merit a few words of pre-liminary caution.
Applicant most frequently asserts a " triple de-fense" which can be characterized as follows: (1) The issue asserted in this contention was litigated in the original licensing proceed-ing and is therefore not open to further inquiry anytime, anywhere or for any reason; (2) The issue raised has otherwise been previous-ly decided to be safe, inconsequential, or the like, and does not merit further consideration; and (3) The issue raised is not appro-l priate in this proceeding, usually followed by a suggestion of where and how, at least according to Applicant, such issue shoula or might be raised.
First and most generally, SMP respectfully suggests that it is this Board, and not Applicant or its counsel, who controls these proceedings and who decides the scope of these proceedings, even in-cluding the recognition of issues not raised by parties.
Southern California Edison Co. (Douglas Point Nuclear Generatin Station, Units 1 & 2), ALAB-277, 1 NRC 539, 544 (1975).
SMP also and more particularly suggests that, just as Staff overextends the assertion of its " Basis-Specificity" defense, so also does Applicant overex-tend itself in pursuing the argument summarized above.
Contrary to-what Applicant's attempted arguments suggest,
-5
changed circumstances do indeed foster changing legal recognition.
Two quick examples should suffice: (1) Relative to this reactor site, it had for some time been thought that earthquake activity was, es-sentially, too remote to merit much consideration; however, after an earthquake of 4.5 on the Richter Scale in April,1979, it was decided at a meeting of NRC Commissioners held subsequent thereto that the probability of a seismic event " meeting or exceeding containment design specifications" should be reduced from 1 in 10,000 to 1 in 100 probability; and (2) Prior to the accident at Three Mile Island it had been widely proclaimed by the industry, and generally accept-ed by everyone else, that such an event was impossible; but given the reality of what happened there, it stands clear that what has at some past time been labelled " impossible" does not necessarily control the eventual reality.
Thus the legal recognition not only can, but should, keep pace with external reality, and not be bound by an applicant's assertions of how radioactive waste should or should not behave itself.
In further caveat upon Applicant's " closed door" defenses, SMP submits that no inquiry proposed in the instant contentions should be foreclosed, in fact or in law, unless Applicant (or Staff) clear-ly and convincingly demonstrates that such inquiry has been altoge-ther foreclosed by some Commission or judicial action binding upon this Board.
Last within these considerations, while Applicant's noted de-fenses may occasionally appear to attain some propriety on a piece-meal basis, SMP reiterates its opposition to the totality or end-product of what is being proposed.
Otherwise stated, while this or that lesser element of Applicant's scheme may seem unexception-able, what we are ultimately talking about here is the long-term storage of 2,551 assemblies of high-level radioactive waste in a pool designed to hold 318 such assemblies on a temporary basis.
In summary, then, SMP cautions this Board against any whole-sale acceptance of the sometimes misleading defenses asserted by Applicant.
IV.
Last by way of introduction, Staff's inconsistencies of plead-ing must be noted.
In its response of June 11, 1980, Staff essen-tially approved nine of SMP's original fourteer. contentions; in its response presented at the Prehearing Conference on August 11, 1981, Staff summarily overruled itself on two-thirds of such recom-mendations; and its October 26, 1981, pleading shows little improve-ment.
While an individual's changes of mind may be perfectly accept-able and are historically recognized as charming in the fair sex,2 we respectfully.suggest that a multi-million collar federal agency charged with the grave responsibility of protecting the public and the environment in these proceedings should be held to a steadier and more constant course.
While an absolute estoppel against Staff's vacillations might not be supportable, yet it can fairly be urged that Staff's numerous self-reversals should be indulged only where Staff propounds some sound, reasoned explanation or logical justi-fication for the same, and Staff has failed to do this. Thus SMP
[
2Despite the fact that intervenors are often accused of " rhetoric",
we pose this not inapposite quote: Virgil wrote in the Aeneid:
" Varium et mutabile semper femina" -- here translated " Variable and changing is ever (the nature of) woman".
While such might make good poetry, we submit that it does not make sound administrative practice.
-?-
I
urges that Staff's generally unexplained self-reversals not be indulged,- or at least be closely and carefully examined, by this Board.
In conclusion, SMP submits that all its contentions present serious issues, seriously pled.
Long after the parties, all coun-sol, and even the~ members of this Board have been forgotten, the high-level radioactive waste here at issue will remain, to be governed at least in part by the decisions we are now in the pro-cess of making.
Thus if there be any doubts in these proceedings, and there may well be many, we urge this Board to. resolve those doubts in favor of safety and responsibility.
Argument upon Contentions) 1 Environmental Impact Statement:
Staff begins its opposition by asserting that SMP's request for an EIS is premature in that no environmental impact appraisal has yet been prepared by Staff.
We submit that it is not SMP who is early, but Staff that is late; we are now some two years, four motnhs, and several days into this pro-ceeding, since Applicant's filing for an amendment.
Staff should not be allowed to assert this delay in its defense.
Both Staff and Applicant oppose the preparation of an EIS, es-sentially on the basis that SMP has not proven the probability of environmental harm.
Several points should be noted here: First, SMP within its first contention incorporates by reference certain other contentions, some of which are acepted by both Staff and Applicant.
3Numbers in the lef t margin refer to SMP's Specific Contentions of the same number, followed by a several-word description of the sub-ject matter of that Contention; internal subdivisions will usually be effected on an unnumbered paragraph-by-paragraph basis.
4 One example is criticality within the fuel pool, which.both Staff and Applicant accept, (SMP Contention 16).
Are we bound to accept as a matter of law, as the noted argument would have us do, that there would be no significant environmental ef fect from criticality within the spent fuel pool?
Certainly not, yet this is the force of such argument.
SMP respectfully submits that, where an issue recog-l nized or accepted as meriting further inquiry concerns a likelihood of environmental effect, then it follows that such environmental ef-
]
fact should also be considered.
This is as true of the other issues raised in SMP's first contention as it is of criticality.
Second, the practical effect of such argument as is pursued tar Applicant and Staff is that it imposes an overly-rigorous standard relative to the preparation of an EIS.
Such statement is not an out-come-determinative declaratton, but rather a further inquiry where such is justified.
Applicant additionally asserts that accident scenarios need not be considere'd relative to NEPA, on the basis of a ten-year-ol deci-sion not binding on this Board.
We disagree.
In an ideal world, nuclear incidents do not occur, and planes do not fall down -- but i
Three Mile Island and a recent air disaster would seem to demonstrate l
l that we do not live in an ideal world.
The authority cited by Appli-cant asserts that the purpose of a nuclear power facility His the generation of electricity... not the having of nuclear accidents."
Yet nuclear accidents can and do happen, and we submit that the law
~
has advanced too far for the proposed narrow view to retain much vi-tality; rather, consideration of accident prevention, control and consequences is today clearly within the business of operating a.
nuclear facility.
The salutary goals and purposes of NEPA should not be defeated by an overly constrained interpretation derived from
]
what the nuclear industry hopes or intends; rather this law should be and has been liberally construed to promote the protection of the human environment.N Applicant also asserts that, since no particular part of its proposed changes is cognizable under NEPA, then the totality or cumu-i lative impact of them is not.
We beg to differ with both the basic premise and the conclusion drawn.
Simply put, Applicant proposes a number of changes that are unique, specifically, pinpacking and the use of the spent fuel laydown area for storage or for activities functionally equivalent to storage, not to mention lifetime storage without any guarantee of removal.E Upon use of the spent fuel laydown area Applicant asserts: "One simply puts the fuel back in the reactor vessel and then brings in the cask."
(Applicant's Response, at 6.)
This argument ignores cer-tain realities, however, in that credible circumstances could render Applicant's scenario impossible where the fuel could not be " simply (put)... back in the reactor vessel" - such as during extended periods of maintenance and refurbishing, (that is, milling and anneal-ing the inside of the reactor vessel in an effort to correct the cracking and embrittlement already recognized by this Commission),
i or in a situation, including emergencies, where a full-core discharge N By way of example only, the United States Court of Appeals for the District of Columbia Circuit recently ordered, relative to the Three Mile Island restart, that an EIS under NEPA should consider psycho-logical stress upon human beings within the affected area.
People Against Nuclear Energy v. Nuclear Regulatory Commission, Appeal No.
61-1131, January 7, 1982 7
0These three bases render Applicant's citation to public Service Elec-tric and Gas Co. (Salem ~ Nuclear Generating Station, Unit 1), inapplic-able to the facts in this case.
1
is required and in which the reactor vessel should be kept empty, such as fuel damage in the reactor vessel, and including damage to reactor mechanisms.
The impact of these credible, recognizable eventualities, especially that of Applicant's management of crack-ing and embrittlement in the reactor vessel, should be considered now, in an orderly, responsible manner, rather than several years hence, under hurried crisis conditions.
Last, and as recognized earlier, (1-2, 6-7, and 10, supra),
Applicant vigorously asserts something of a " piecemeal-not-totality" argument in defense of its proposed changes, thus supposedly avoid-ing or obviating any need or reason for this Board to consider the cumulative impacts of the same.
If such argument is applied as law, it functionally voids the entire purpose of proceedings before this Board and the Commission - specifically, to ensure that the conduct of the nuclear power industry is regulated so as to protect against harm to public health and safety, or to recognized environmental in-terests.
Under Applicant's argument a licensee could, subsequent to the grant of its operating license, almost indefinitely expand the same, admittedly by modest increments to include activities never-contemplated or fully treated in the original proceedings or license
-- all upon an argument that boils down to: "This particular ' design refinement'6 is not significantly more than what we've already been allowed in the past."
SMP respectfully urges the members of this Board to resist the easy appeal of Applicant's essentially mislead-ing argument.
6Applicant's terminology, not ours: First Applicant, then Staff, use the term " design refinement" to reference one of Applicant's most recent changes, specifically, that of reducing center-to-conter spac-ing between fuel bundles from 10.5 inches to 10.25 inches; this "re-finement" directly impacts upon criticality within the spent fuel pool, (SMP Contention 16, accepted by both Applicant and Staff). - - _ - _ _ _ _ _ _ _ _ _ _
'2..
Prematurity and Need:
In the first of many self-reversals,7 Staff opposes this Contention, as does Applicant.
Their common basis of. opposition is.to argue as a matter of law that Applicant does not have to show a need for the proposed changes.
Such avoid-ances could as easily + and as misleadingly -- be answered: If Ap-plicant does not need the proposed changes then why are we all.here?
The defenses offered miss the point of this Contention which pre-sents questions of fact for this Board to resolve.
The inquiry here suggested by SMP is not, nor can it reasonably be decided as, a question of law; rather it is one of fact and in-cludes: What increased storage does Applicant need?
When does Ap-plicant need it? Is there any priority within the proposed changes?
Or can Applicant make sufficient showing for. "everything now"? These are but a few of the fac'ual questions implicit in this Contention which should be but are not answered by-the oppositions noted.
It is within the sound and proper discretion and jurisdiction of this Board to entertain and resolve the questions, concerns and considerations presented.
Last, while SMP agrees with Staff that a-certain amount of " lead time" is to be favored, (SR-3, at 10), we submit that six years is excessive and that such assertions do not meet the essence of. the Contention presented.
7Staff Reeponses will be cited as: SR-1, June 11, 1980; SR-2, August 11, 1981; SR-3, October 26, 1981; similarly for Applicant's.
Here, compare Staff acceptance of SMP's earlier Contention 4(a),
(SR-1, at 9), with Staff's opposition-to SMP's succeeding Contention 2, (SR-3, 9-10).
Relative to Staff's many self-reversals it should be noted that there are no changed facts in.this case, and no changed law applic-able to it, favoring these reversals, nor does Staff cite us any.
Indeed, some new facts, (such as the " design refinement" noted supra at 11, n. 6), disfavor such reversals.
Thusare submit that'upon un-changed law and even less favorable facts, Staff's self-reversals are of little persuasive value and. should not be indulged.
4 3.
Specific Operating Procedures:
Another Staff vacillation, joined by Applicant in its irrst nuersal.0 Staff asserts as a mat-ter of law that the due care here urged by SMP need not be shown.
We submit that a standard of due care is presumed and that this Con-tention raises questions of fact as to the means by which Applicant will meet the same.
Such subject matter is clearly within the scope of these proceedings, Staff's argument should not be entertained, and this Contention should be admitted.
Applicant asserts that this Contention is "too vague", (AR-3, at 6).
Let us pause to compare the standard suggestea as acceptable by Applicant in prior pleadings, ( AR-1, at 8, paragraph numbered i
"(11)").
We submit that this Contention raises triable questions of fact, and with a greater degree of specificity than that previous-ly acceptable to, and recommended by, Applicant.
Last, Staff argues that Applicant's recent safety violations, failures or defects are immaterial to a consideration of the activi-ties proposed.
While any full discussion of pattern evidence would run to many pages, at least this much can be safely stated: Past safety violations or incidents in spent-fuel handling are acceptable pattern evidence, thus material, and SMP submits that relevant evi-dence would be developed in discovery.
Thus Staff argument fails twice: First, by imposing an improper standard for admissibility; and second, by prematurely inquiring into SMP's proof-of-facts.
0For Staff's self-reversal here, compare SR-1 at 12, accepting SMP's predecessor Contention 6,swith SR-3, at 10-11, opposing successor Contention 3.
It should also be noted (not intending any self-praise) that SMP's Contentions were augmented, enhanced and improved from earlier filings, relying in part upon Staff's and Applicant 's two earlier responses.,
4.
Alternatives:
Applicant, and Staff in another reversal,9 both oppose this Contention, essentially on the grounds that SMP has not shown " environmental superiority" or " conflicts concerning alter-native use of available resources".
Several defects in such oppo-sition must be noted: First, both Staff and Applicant cite and rely heavily upon Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451 (1980), as requir-ing the rejection of this Contention at this time.
Such is not the law: North Anna, supra, was decided on the basis of a motion for summary disposition, subsequent to discovery, and is inapplicable here.
Second, and in. corollary, the oppositions noted thus impose an invalidly high standard for admissibility of contentions.
Both Staff and Applicant also choose to ignore that SMP has specifically incorporated, by reference to other Contentions, cer-l tain credible and identifiable harms and hazrds of environmental l
impact, (SMP Contention 6, for example).
Further, SMP also speci-fically references that the alternative of existing hyroelectric power is currently available from Hydro-Quebec, thus showing a suf-ficient " alternative use of available resources" to survive Staff's and Applicant's challenges at this stage of the proceedings.
We submit that SMP has identified alternatives under 42 USC l
HE102(2)(C) and 102(2)(E) sufficient to support the admission of this Contention; whether discovery or other subsequent practice develops sufficient facts to conclude these issues favorably to Intervenor is a question for later resolution.
9Compare Staff's earlier acceptance of most of this Contention, SR-1, at 5-6, with the newly-developed blanket opposition, SR-3, at 11-12..
4 5
Occupational Exposures:
This Contention, unopposed by Staff and Applicant, was admitted at a Prehearing Conference, August 11, 1981.
6.
Radioactive and Heat Emissions:
Both Staff and Applicant par-tially reverse their prior responses in opposing this Contention.
(Compare SR-1, at 7, where the Staff finds " adequate basis", with SR-3, at 13, where Staff asserts: "SMP has completely failed to give any basis.
")
With all due respect we submit that logic should not be held hostage to the whim and caprice of Staff as here demonstrated.
Further, and as recognized in Applicant's first Response to this Contention, (AR-1, at 6, paragraph (ii)), the issue of heat emissions is raised in an admissible form.
Last,.we submit that this Contention is set forth with such specificity as may be developed at this point in the proceedings, in that Applicant has not identified' with particularity the specific operating procedures to govern its d/r/c scheme.10 7.
Class 9 Accident:
Both Applicant, and Staff in yet one more reversal,II oppose this Contention.
The common basis of such oppo-sition is.that such inquiry is beyond the scope of the notice of this proceeding.
However, as noted in Staff's earlier Response, (SR-1, at 8, last three sentences), this poses no problem where a contention alleges "that either the probability or consequences of 10SMP does not out-of-hand reject this.cn? any other Stipulation proposed by Applicant, but suggests that all Stipulations be pur-sued subject to the considerations recognized and discussed below, at I Compare SR-1, at 8, with Staff's more recent opposition, SR-3 at 13-14.
Further, SMP expressly adopts Staff's prior response as setting forth sound reasoning in support of admitting this Conten-tion.
a core-melt event would be worsened by the proposed amendment",
Staff then recognizing that worsened consequences were specifical-ly pled.
Last, Staff also opposes admission of this Contention on an asserted ground of lack of basis and specificity.
We submit, how-ever, for the reasons noted above, including especially Staff's own earlier response, (SR-1, at 8), that sufficient basis and specifi-city have been made out to support admission of this Contention.
8.
Loss of Cooling Capability:
Accepted by Applicant to an ex-tent essentially satisfactory to SMP, and opposed by Staff in the most egregious self-reversal of its entire pleading.
While SMP disagrees with the asserions contained in the first para raph of Applicant's response, (AR-3, at 10), consideration of the same is unnecessary since Applicant's second paragraph essen-tially accepts the questions intended to be raised by SMP.I2 We urge this Board to make a close comparison of Staff's ear-lier response accepting this Contention, (SR-1, at 16, No. 12),
with its more recent reversal in opposition, (SR-3, at 14).
What emerges from such comparison is that Staff would have us accept, and practice, that " basis" and " specificity" mean whatever Staff says they do (at any particular moment).
We respectfully submit that Staff's capricious, inconsistent and thoroughly subjective use of these terms, and its 180-degree reversal here demonstrated, should-not be indulged, and that this Contention is stated with sufficient basis and specificity to support its admission.
I2As referenced in an earlier footnote, (n. 10, su' ara, at 15), it is SMP's position upon Contentions can be pursuea
- o joint benefit, and we respectfully direct the Board's attention to the discussion of and request for the same at the end of this pleading...
9 Changes in Coolant Flow Characteristics:
Staff accepts, and Applicant accepts and proposes a rewording of, this Contention.
SMP respectfully suggests stipulation upon the same pursuant to the dircussion set forth at the end of this pleading.
10.
Failures in Materials Integrity:
This Contention is recognized as admissible by Applicant, who suggests a rewording, and opposed by Staff, in yet another reversal.
Staff's opposition and reversal once more overextends its use of " basis" to challenge or inquire into what would be SMP's proof-of-facts upon this Contention.
As Staff previously recognized, (SR-1, at 12, Contention 7.), and as Applicant recognizes, this Conten-tion states sufficient basis for admissibility.
As developed else-where in this pleading, whether SMP can or will present sufficent proffs to bind the outcome of this issue is a question to be posed and resolved at a later point in this proceeding.
Last, SljP suggests that the rewording of this Contention pro-2 posed by Applicant be pursued subject to the discussion and request upon Stipulations set forth below.
11.
Seismic Durability:
To the extent that this Contention asserts that Applicant's proposed d/r/c scheme should be shown to meet exist-ing seismic criteria, it is essentially accepted by both Applicant and Staff.
But it is also contended here that a reassessment or reapprais-al be made in view of (1) the significantly greater volume of spent fuel-to be stored under d.ifferent conditions, and (2) changed circum-stances, recognized by this Commission, which seriously impugn exist- _.
ing safety criteria.
As noted in the body of this Contention, Applicant's facility was exposed to an earthquake regictering 4.5 on the open-ended Richter scale on April 17, 1979.
Subsequently the Commissioners acknowledged an increase in the probability of a seismic event meeting or exceeding containment cesign specifica-tions from 1 in 10,000 to 1 in 100 probability.
Since then there have been several more earthquakes in the area, the most severe on January 9, 1982, registering 5.8-5.9 on the Richter scale.
Appli-cant's facility is designed to withstand earthquakes of up to 6 5 on the Richter scale.
Both Staff and Applicant have opposed the inquiry here suggested,as "not... appropriate", (SR-3, at 16, fif th line).
We respectfully submit that it would be significantly more " appropriate" to act upon the changed circumstances recognized by this Commission, and undertake a responsible inquiry such as that here proposed, than to sit around waiting for such seismic event as would exceed design basis.
Given the changed circumstan-ces as recognized by the Commission, the attempted defenses of "re-litigation" are altogether invalid.
This Contention should be admitted in its entirety. 3 12.
Aircraf t Crash:
Both Staff and Applicant oppose this Contention on the common ground that it seek's "relitigation" and is therefore.
"not appropriate".
On the basis of the changed circumstances stated in the body of the Contention as to aircraft traffic in this area, and as to the worsened conquences in view of Applicant's proposed 3Relative to such part of. this Contention as seems acceptable to both Applicant and Staff, SMP suggests that the parties proceed as suggested in the statement upon Stipulations set forth below. ;
d/r/c scheme, the arguments of Staff and Applicant are neither re-sponsive nor persuasive.
Additionally, Staff again indulges its expansive use of " basis" and " specificity" by way of opposition, essentially asserting that SMP has failed to sufficiently identify such event.
Staff would ap-parently burden SMP, at this preliminary stage of the proceedings, to propound a detailed recitation including the name of the pilot and the color of the airplane.
We submit that such is not required to support the admission of this Contention.
13.
Fuel Handling Accidents:
Both Staff and Applicant accept this Contention insofar as it treats a fuel assembly drop, and oppose it insofar as it raises a fuel cask drop.
Simply because the fuel casa handling by Applicant may not be pract!.ced until some time in the future does not constitute any absolute bar to the consideration of the issue at this time; rather it would seem the better part of wis-dom to treat both such issues now, and on a unified basis, than to burden the pcrties with reopening this area of inquiry at some later date.
14.
The " Minnesota Contention":
Both Staff and Applicant oppose this Contention on an argument that such inquiry is foreclosed as a matter of law.
We diagree.
While Staff accurately quotes a por-tion of the Commission's " Notice of Proposed Rulemaking" on the waste confidence proceedings, and while Applicant cites certain ALAB decisions in support of its position, we respectfully submit that the issue raised remains open as.never having been judicially 2
determined.
Further, and of quite contrary effect against the argu-ments prsented by both Staff and Applicant, such question is in fact.
now pending resolution before the United States Court of Appeals for the District of Columbia Circuit.IN Several points of practice should here be recognized: First, and as part of its own pleadings, Applicant functionally admits that it is seeking lifetime storage in this proceeding;.Second, Ap-plicant is not entitled to any presumption of " reasonable assurance" that the waste here sought to be stored will be removed by or before the expiration of Applicant's license; and Third, unless Applicant can plead and prove such removal, the issue of long-term storage beyond the end of the license period is a proper consideration here.
Last, Applicant's argument on 14(b) miscontrues the thrust of such part.
SMP does not contend that Applicant's operations "must be cheaper", ( AR-3, at 14, first line), but rather that App 11 cant's cost-benefit andlyses should take into account all costs not unrea-sonably remote from its proposed scheme, here the likelihood that Applicant may have to maintain its spent fuel pool beyond the ex-piration of its license term.
15 Applicant 's Financial Capacity:
Both Staff and Applicant op-pose this Contention, arguing as a matter of law that such inquiry should be foreclosed.
INThis case is the appeal taken from ALAB-584, North Anna, supra, now Potomac Alliance v. Nuclear Regulatory Commission, Appeal No.
80-1662.
The issue on appeal is: "Whether the Huclear Regulatory Commission, in issuing an operating license amendeant authorizing -
an increase in the capacity of the spent fuel storage pool at the North Anna Station, violated the National Environmental Protection Act and the Atomic Energy Act by refusing to consider the environ-mental effects of the action arising subsequent to the expiration of the operating license for the station." (Petitioner's Brief, at 1.)
Thus the issue raised in this Contention remains open to in-quiry. -
J
g Such argument begs the reality of both changed law and changed facts or circumstances.
While it may once have been defensible, co-incident to the licensing of Applicant's facility, to accept the ex-istence of a legal presumption that the waste fuel stored by a licen-see would be removed within the license term, and that spent fuel pools would be used only for the momentary or temporary storage of small amounts of spent fuel, the Minnesota case, (Citation omitted.),
signals the functional demise of such presumption.
Otherwise stated, the legal presumptions upon which such initial inquiry was based, (periodic removal of spent fuel, temporary storage of only small amounts of spent fuel), have been shown to be, and legally recognized to be, invalid and indefensible.
This is the changed law that voids Staff's and Applicant's reliance upon the original licensing proceed-ings.
The changed facts of the last ten years include at least the economic reality that the much-defended original proceedings could not have contemplated either the significantly increased amount of waste fuel here sought to be stored, (and ultimately to be disposed t
of), nor the double-digit inflation that has nearly tripled _ estimated disposal costs within this time frame.
Thus, while no party to a legal proceeding should lightly or irresponsibly suggest the disturbance of prior proceedings, we submit that, for the reasons recognized hereinabove, the attempted defenses I
are insufficient, and that the inquiry here proposed is within the lawful and appropriate concerns of this proceeding.
16.
Criticality:
Both Staff and Applicant recommend acceptance of this Contention..
o 17.
Applicant's Technical Capability:
Applicant accepts, and Staff opposes, this Contention.
While it might rhetorically be posed whe-ther Staff knows Applicant's business better than Applicant does, it can more soundly be noticed that Staff once again expands its use of
" basis" to challenge S4P's eventual proof-of-facts in support of this Contention.
Further, Staff's response does not suf ficiently address the concerns and considerations more particularly addressed in this Contention. (Id., at 15-16.)
Given Applicant's acceptance and Staff's essentially unsupported opposition, we respectfully submit that this Contention should be admitted.
18.
Evacuation:
Both Staff and Applicant oppose this Contention, the Staff on a stated basis that "(t)his contention is essentially related to the operation of the plant as a whole and not the spent fuel. pool", (SR-3, at 20), and Applicant asserting that " spent fuel pool capacity has no nexus with emergency planning and evacuation" (AR-3, at 15).
With all due apologies for our arguably crude terms of reference we submit, ultimately, that what Applicant here seeks Commission ap-proval of, is to " build a bigger bomb with a shorter fuse".
While such explicit and even partisan acknowledgement of Applicant's goals may frighten away some opponents, we submit that it does not signifi-cantly uisidentify the result that Applicant would like to see en-dorsed in these proceedings, (that is, storage of 2,551 spent fuel
~
assembliesh inevitably coincident with a shorter time in which said spent fuel assemblies would achieve, and maintain, criticality, as referenced, and accepted in SMP's preceding Contention 16 by both Applicant and Staff.
.=_
On such bases, the foregoing noted assertions that the spent fuel pool has "nothing to do with criticality and emissions" should not be entertained.
In summary upon the five paragraphs of this Contention, we submit that Applicant must show, and that Staff should be held to recommend the effectiveness of, specific and detailed plans for the evacuation of the immediate area most likely affected by a worst-case " incident" within Applicant's spent fuel pool under the condi-tions created by its proposed d/r/c scheme.
Nothing asserted by Staff or Applicant negatives the need, in fact or in law, for such information and protection; rather, the avoidances' propounded by the parties would seem to indicate the need to require such infor-mation by formal means.
Procedural Considerations Referenced elsewhere in this pleading, or otherwise applicable from prior Notices or Orders in this proceeding, SMP respectfully suggests the following:
(1) Oral Argument:
Given the differences thus far developed in pleadings of record, SMP respectfully submits that the most direct and effective means of resolving the same would be by oral argument between and amongst all parties at a prehearing conference; (2) Stipulations:
Given that, relative to certain of the Contentions hereinabove so referenced, SMP and Applicant are relatively close together in agreement upon an acceptable form of Contention, SMP respectfully urges that Stipulations thereon be pur-sued by the parties, subject to such instruction or scheduling as this Board may deem appropriate; and (3) Other:
Various other procedural matters remain unresolved at this time, including the status of additional parties, (" IDEA"); the scheduling of discovery; inspection of Applicant's facility, and the identity and qualifi-cations of persons conducting the same; and the.like.
On such basis SMP respectfully requests that a Prehearing Conference be scheduled herein, and that Stipulations upon the noted Contentions be encour-aged by negotiations amongst the parties.
David Santee Miller Counsel of Intervenor SMP 213 Morgan Street, N. W.
Washington, D. C.
20001 Telephone:(202)638-0483 CERTIFICATE OF SERVICE I hereby certify that I have caused the foregoing " Response" to be served upon or filed with the following named persons or of-fices, specifically, by mailing copies of the same thereto, first class regular mail postage prepaid, this 24th day of January, 1982:
U. S. Nuclear Regulatory Cmsn.
David Colton-Manheim Docketing & Service Branch Box #386 Bedford's Barn Washington, 'D.
C.
20555 Gouldsboro, ME 04607 (Two Copies plus Original)
Jay M. Gutierrez, Esquire Robert M. Lazo, Esquire, Chairman Office of Exec. Legal Dir.
Atomic Safety & Licensing Board U. S. Nuclear Regulatory Cosn.
U. S. Nuclear Regulatory Cmsn.
Washington, D. C.
20555 Washington, D. C.
20555 Thomas G. Dignan, Esquire Dr. Cadet H. Hand, Jr.
Ropea and Gray Director, Bodega Marine Lab.
225 Franklin Street University of California Baston, MA 02110 P.
O.
Box 247 Bodega Bay, CA 94923 Rufus E. Brown, Esquire Dept. of Attorney General Dr. Peter A. Morris, Esquire Augusta, Maine 04333 Atomic Safety & Licensing Board U. S. Nuclear Regulatory Cmsn.
Washington, D. C.
20555 T
David Santee Miller Counsel for Intervenor SMP