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s,.v f SECY 81-575 October 5,1981 ADJUDICATORY ISSUE (Affirmation)
For:
The Commissioners i
plom:
James A. Fitzgerald Assistant General Counsel
Subject:
Review of ALAB-650 (In the Matter of Public Service Electric and Gas Company, j
et al.)
t Facility:
Salem Nuclear Generating Station, Unit 1 (Spent Fuel pool Expansion)
Petition For Review:
Intervenor Township of Lower Alloways i
Creek filed a petition for review.
Review Time Expires:
October 2 2, 1981, as extended.
Purpose:
To inform the Commission of an Appeal Board decision, Commissig review of which has been sought. [In our opinion, EX 5 Discussion:
Intervenor Township of Lower Alloways Creek (TOLAC) has filed a petition for-review of ALAB-650, asserting that the decision is erroneous with respect to certain important macters of fact, law and policy that could significantly affect the environment and public health and safety.
The NRC staff and licensee have both responded in opposition to TOLAC's petition for Commission review.
j CONTACT:
Martha A. Torgow, OGC 634-1465 Informs:ba in tN; rccc:d vcn dye;rd m Stcc:dr.cc we, Le :4 tf'M M !nbrmation -
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9 TOLAC has subsequently filed in the U.S.
Court of Appeals for the Third Circuit a petition for review of this Aeoeal Board iecision. /
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~foEtT1e reasons given lie ~ low, we 'do n'oE recommend we believe In ALAB-650 the Appeal Board affirmed a Licensing Board Initial Decision granting Public Service Electric and Gas Company's application for an operating license amendment to permit the expansion of the storage capacity of the Salem Unit I spent fuel pool (SFP).
The amendment would allow the storage capacity of the spent fuel pool to be increased from 264 to 1170 spent fuel i
assemblies.
Both the licensee and the NRC staff estimate that without the existing racks the pool at Unit I will be full after 1982 and the pool at Unit 2 will be full after the refueling outage in 1984.
(12 NRC at 446-447).
After the proposed reracking to a higher density configuration, the pools of Units 1 and 2 would be full in 1999 and 2000, respectively.
(12 URC at 447).
Intervenors before the Licensir.g Board included New Jersey and Delaware as interested states, Mr. and Mrs. Alfred C.
Coleman, Jr., and the Township of Lower Alloways Creek (TOLAC).
The Licensing _ Board held hearings on three contentions, two raised by the Colemans and one by TOLAC, and on three questions raised by the Board itself.
Exceptions were taken to the Licensing Board's disposition of all these contentions and questions.
The Appeal Board rejected exceptions taken by the Colemans and TOLAC and affirmed the Licensing Board's disposition on all points on the basis of that Board's reasoning, which we summarize below.
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.c Licensing Board Decixion The Colemans raised contentions
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concerning the problem of accidental criticality occorring among more densely packed spent fuel assemblies in the event of (a) deterioration of the neutron absorption material provided by the Boral plates (boron carbide and aluminum) located between the spent fuel bundles, and (b) deterioration o'f the rack structure leading to failure of the rack and consequent dislodging of the spent fuel bundles.
The Colemans asserted the licensee had inadequately considered the effectiveness of Boral for reactivity control in the spent fuel pool environment over a prolonged period of time.
The Licensing Board denied the Colemans' contentions on the basis of evidence that neither the rack structure nor the Boral would deteriorate in a manner that would impair effectiveness in preventing accidental criticality.
The evidence supported a conclusion that although the Boral itself may deteriorate if it comes in contact with the pool water, this does not pose a criticality safety problem because, first, the stainless steel cell walls are virtually leak-tight, and second, even if the Boral did come in contact with the water, the resulting corrosion would form inert boron carbide particles which would remain in place and retain Boral's neutron-absorbing capability.
The Board fount ': hat the companion problem of the creaticn of hydrogen gas from Boral corrosion, which can cause cell walls to swell and jam stored fuel assemblies in place, can be alleviated by venting the hydrogen gas through small vent holes drilled at the tops of the cells.
TOLAC contended that the licensee had not sufficiently considered possible alternatives to the expansion of the Unit 1 spent fuel pool.
In disposing of this contention, the Licensing Board first determined that the spent fuel
i 1
storage increase would cause no significant environmental impact and therefore is not subject to the NEPA requirement to consider alternatives.
The Licensing Board then proceeded to
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consider several alternatives,.but found them to be either infeasible or undesirable compared with'the proposed expansion.
The: Licensing Board 'then considered its f
own questions to the parties.- The.first two questions concerned the probable effects-on Salem's SFP - with both the l
present and the proposed configuration--
of an accident at Salem similar to the one at TMI.
The Board concluded'that the effects of such an accident would be minimal, if they existed at all.
The third question concerned whether expanded storage would significantly increase the consequences of a gross loss of water from the SFP, in l
comparison with consequences of a-l similar loss of water from the pool as presently licensed. - The major focus of this inquiry seems.to have been on whether mechanisms exist for escape of.a large amount of radioactive material from the pool following a major loss o.
water.
The only mechanism' suggested by l
which radioactive materials in the spent fuel rack might be released was the -
cxidation of the zirconium cladding resulting from heating up of'recently discharged assemblies in the absence of l
cooling water. 'Since the Licensing Board was concerned with the effect of having additional fuel in the pool, i
beyond what the present license allowed, the Board focused-on the possibility j
that oxidation might propagate-from more
.)
recently discharged spcot-fuel to older q
spent fuel' assemblies.
A staff witness, Dr. Allan S. Benjamin, testified that he believed'it possible thaticladding in the older assemblies would be caused to oxidize by the higher temperatures of' the recently discharged fuel.
Dr. Benjamin told the Board that further
. analysis could predict more precisely whether oxidation could propagate to the older fuel. -TOLAC moved to suspend the a
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proceedings and to direct that such further analysis-be completed.
The Licensing Board denied TOLAC's motion, concluding that even if propagation of oxidation to older fuel did occur, any resulting radioactive release would not be significant compared with release from the newer fuel and, therefore, the proposed increase in spent fuel storage would not lead to a great difference in the consequences of a gross loss of water accident. The Board noted that a gross loss of water is in itself an event of low probability.
Appeal Board Decision The Appeal Board noted that one of its problems in reviewing the proceeding below was the inadequacy of the exceptions and briefs filed by TOLAC and the Colemans.
The Board had difficulty discerning and understanding the intervenors' arguments which the Board found were presented in a confused manner with only limited supporting material offered. (OGC has reviewed the fy,6 intervenors' pleadings The substance 1/ of the appeals seemed to relate to three matters: (a) the integrity of the neutron absorption material and spent fuel rack structure in the pool; (b) the Licensing Board's denial of TOLAC's request for further j
analysis of the propagation of oxidation to older fuel in the event of a gross loss of water from the pool; and (c) the adequacy of the environmental review.
The Appeal Board affirmed the Licensing Board's reasoning with respect to each of these issues, finding the lower board's decision to be based on full i
1/
Procedural errors were alleged solely by the Colemans.
~
After finding the alleged procedural errors to be irrelevant to the Licensing Board's ultimate decision and that these arguments were raised for the first time on appeal, the Appeal Board further found no denial of the Colemans' procedural rights.
(ALAB-650, slip l
opinion at'47-48).
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y 6
i consideration of the arguments and evidence presented before it.
In regard to the adequacy of environmental review, the Board concluded that the Licensing Board had-adequately considered the alternatives to reracking the existing pool at Salem.
The Appeal Board agreed with the Licensing Board that consideration of any alternatives was gratuitous because
" approval of the instant proposal does not constitute a major action with a significant effect on the environment."
The Appeal Board, therefore, agreed that no environmental impact statement is required.
ALAB-650, p. 39, footnote 33.
At the same time, the Board found unsubstantiated TOLAC's suggestion that the Commission, as a matter of policy, had determined that no spent fuel pool expansion could have a significant impact on the environment.
TOLAC's Petition for Review In seeking Commission review, TOLAC contends that the decision of the Appeal Board was in error in two respects.
First, TOLAC asserts that its motion for additional analysis on the propagation of oxidation should have been granted and the matter remanded to the Licensing Board. TOLAC argues that the Board erred in relying predominantly on the testimony of one staff witness, ignoring the conflicting testimony and opinion of Dr. Webb, TOLAC's witness.
The intervenor further contends that the propagation of oxidation question was too important to remain unresolved but should be subjected to the additional analysis indicated by Dr. Benjamin.
Second, TOLAC asserts that the enlargement of the Salem Unit 1 spent fuel pool "along with the expansion of spent fuel pools at practically every nuclear power plant operating" in this country constitutes a major Commission action significantly affecting the quality of the human environment and that the Commission, in violation of
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NEPA, has established a policy for long term storage of' spent fuel at reactor sites-without preparing _a Generic Environmental Impact State ~ent.
TOLAC i'
argues that NUREG-0575, "1_tal Generic Environmental Impact Statement on t
Handling and Storage of Spent Light Water Power Reactor Fuel" (August 1979),
does not_ provide a NEPA-type analysis i
for the away-from-reactor storage alternative even though NRC is obliged f
to prepare such an analysis.
TOLAC l
seeks an evaluation of, and.an EIS l
concerning, the alternative of_
away-from-reactor storage.
OGC Analysis feseenoreason f
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Thus, we believe that' i
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10 Recommendation:
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James A. Fitzgerald
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/ Assistant General Counse~l Attachments:
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1.
Proposed Order 2.
ALAB-650 3.
Petition for Review 4.
Staff Response S.
Licensee's Response Comissioners' connents should be provided directly to the Office of the Secretary by c.c.b. October 20, '981.
Comission Staff Office comments, if any, should be submitted to the Comissioners NLT October 13, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and concent, the Comissioners and the Secretariat should be apprised of when coments may be expected.
i This paper is tentatively scheduled for affirmation at an Open Meeting during the week of October 19, 1981.
Please refer to the appropriate Weekly Comission Schedule, when published, for a specific date and time.
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6 UNITED STATES OF AMERICA NUCLEAR BEGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD
.:g Administrative Judges:
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Christine N. Kohl, Chairman Jijp 2c ':
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Dr. W.
Reed Johnson 3
' y y 3 'pg,y Thomas S. Moore v
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5 In the Matter of
)
)
PUBLIC SERVICE ELECTRIC AND
)
Docket No. 50-272-OLA GAS COMPANY, et al.
)
(Spent Fuel Pool Expansion)
)
(Salem Nuclear Generating
)
Station, Unit 1)
)
ggpl,,;;,, f, 2 ',.1981
)
Mr. Carl J. Valore, Northfield, New Jersey, for intervenor Township of Lower Alloways Creek.
Mr. Alfred C.
Coleman, Jr.,
and Mrs. Eleanor G.
Coleman, Pennsville, New Jersey, intervenors pro se.
Mr. Mark J. Wetterhahn, Washington, D.C.,
and Mr. RiWarc Fryling, Jr., Newark, New Jersey, for applicants Public Service Electric and Gas Company, et al.
Ms. Janice E. Moore for the Nuclear Regulatory Commission staff.
DECISION July 17, 1981
( ALAB-650 ) -
E A
This proceeding involves the request of Public Service Electric and Gas Company, et al. ( " applicant s ")>, for an amendment to the operating license of Unit 1 of the Salem nuclear facility.
The amendment would permit the instal-lation of new storage racks that would increase the capacity of the spent fuel pool from 264 to.1,170 assemblies.
The Licensing Board concluded that "the additional storage can be accomplished without madangering the health or safety of the public," and thus authorized the issuance of the license amendment.
L3P-80-27, 12 NRC 4 35, 4 3 6, 458 (1980).
Intervenors -- the Township of Lower Alloways Creek
( TOLAC), and Alfred C. Coleman, Jr.,
and Eleanor G.
Coleman --
have appealed that decision.
After full consideration of the arguments on appeal, the record, and the Licensing Board's thorough decision, we affirm.
I The Licensing Board's initial decision recites the procedural history of this case.
12 NRC at 436-438.
We 3
repeat here only those f acts that provide necessary back-ground information for the discussion below.
J
e.
Three of the intervenors' contentions were litigated 1/
at the hearing before the Licensing Board.
The Colemans' contentions 2 and 6 -- treated together by the Board -- con-cerned the possible deterioration of the pool's rack structure and neutron absorption material ("Boral") and the consequent 2
implications for accidental criticality-f in the spent fuel
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The Colemans' original petition to intervene contained 20 contentions.
The Licensing Board, however, concluded thess. conte.tions were either."not sufficiently that n
definite" or beyond tha scope'of the license amend.
ment proceeding.
The Board also found that the petition was not in the proper form.
Thus, the Board provided the Colemans with an opportunity to file an amended petition to intervene.
Memormadum and Order (April 26, 1978) at 4-12.
The Colemans then obtained counsel (the New Jersey Public Advocate's Office) and filed an amended petition with 13 contentions.
(Attorneys from this office continued to represent the Colemans throughout this proceeding until the appeal.
App. Tr. 14.)
Of the 13 contentions submitted by the Colemans with their amended petition to intervene, the Board eventually found four to be admissible.
Order Following Special Prehearing Conference (May 24, 1978); Memorandum and Order (July 18, 1978).
Two of TOLAC's original 11 contentions also were admitted.
Memorandum and Order (April 26, 1978);
Memorandum and Order (August 2, 1978).
Applicants later moved for summary disposition of all admitted contentions.
See 10 C.F.R. 2.749.
In response to that motion, the Licensing Board dismissed two of the Colemans' contentions and one of TOLAC's, leaving a total of three contentions subject to evidentiary hearing.
2/
" Criticality" -- or "supercriticality" -- describes' the state of a system containing fissionable material
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(e.g., Uranium-235) that is capable of supporting a neutron chain reaction.
A system, such as a spent fuel pool containing fuel assemblies, would be " critical" (or "supercritical") if its " effective multiplication cons tant, " or keff, equalled 1.0 (or greater).
Keff is the ratic
>f the number of neutrons produced from fissions in each generation to the number of neutrons produced in the preceding generation.
The introduction of a neutron-absorbing material (like boron) to.the system reduces keff, thus tending to prevent criticality.
4-pool.
TOLAC asserted that applicants have given inade-quate consideration to possible alternatives to the spent 4
fuel pool expansion.
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The Colemans' contentions 2 and 6 stated:
2.
The licensee has given inadequate con-sideration to the occurrence of accidental criticality due to the increased density or compaction of the spent fuel assemblies.
Additional consideration of criticality is required due to the following:
A.
deterioration of the neutron absorption material provided by the Boral plates located between the spent fuel bundles; B.
deterioration of the rack structure leading to failure of the rack and consequent dislodging of spent fuel bundles.
6.
The licensee has given inadequate considera
- tion to qualification and testing of Boral material in the environment of protracted association with spent nuclear fuel, in order to validate its continued properties for reactivity control and integrity.
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TOLAC's contention 1 stated:
The Licensee has not considered in sufficient detail possible alternatives to the proposed expansion of the spent fuel pool.
Specifically, the Licensee has not ' established that spent fuel l cannot be stored at another reactor site.
Also while the GESMO proceedings have been terminated, it is not clear.that the spent fuel could not by some arrangement with Allied Chemical Corp. be stored at the AGNS Plant in Barnwell, South Carolina.
Furthermore,-the Licensee has not explored nor exhausted the possibilities for disposing of the spent fuel outside of the U.S.A.
. As the hearing progressed, the Board itself raised several additional issues by posing questions that concerned (1) the nature of the March 1979 events at Three Mile Island (TMI) and the effects (if any) on the spent fuel pool at that site, and (2) the consequences of a gross loss of water from 5
the Salem pool with expanded capacity.- / Applicants requested 5/
The Licensing Board first asked the following three questions (Order, April 18, 1979):
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1.
To what extent did the accident at Three Mile Island affect the spent fuel pool at that site?
2.
If there had been an explo.sion or " meltdown" at Three Mile Island, what effect would that have had upon the spent fuel pool?
To what extent would it have mattered how much spent fuel was present at the pool?
3.
If an accident such as the one at Three Mile Island occurred at Salem, to what extent would the accident affect the spent fuel pool?
If an explosion or " meltdown" occurred at Salem, to what extent would that affect the spent fuel pool?
To what extent would it have mattered how much spent fuel was present at the pool at Salem?
(The Board subsequently dropped the second question.)
At the July 10, 1979, hearing session, the Board made another TMI-related. inquiry (Tr.- 922-923):
The proposed Annex to Appendix D, 10 CFR Part 50, appears to define a Class 9 accident as a sequence of failures which are more severe than those which the safety features of the plant are designed to prevent.
The sequence of failures at Three Mile Island produced a breach of the containment and a release of radiation which could not be prevented by the safety.
features.
Was the occurrence at Three Mile Island therefore a Class 9 accident?
Was (FOOTNOTE CONTINUED ON NEXT PAGE) i I
4 interlocutory review of the latter inquiry, contending 'that it reflected Board consideration of the consequences of a
" Class 9 accident," contrary to Commission policy.
We declined to review the matter, noting that "the Board below has marked a path of inquiry that stops short of considering a Class 9 accident."
ALAB-588, 11 NRC 533, 536-537 (1980).
The issues heard by the Licensing Board and addressed in its initial decision thus fall into four categories:
(1) the possible-deteriorati'on of the neutron absorption material and rack structure; (2) the consideration of alter-
' natives to pool expansion; (3) the relationship of the events at TMI to this proceeding: and (4) the consequences of a gross loss of water.
The Board resolved each of these matters in favor of expanding Salem's spent fuel pool.-
It therefore 5/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) the risk to health and safety and the environment
" remote in probability," or " extremely low" ar Three Mile Island, as those terms are used in the Annex?
Finally, the Board asked (LBP-80-10,11 NRC 337, 346 (1980)):
In the event of a gross loss of water from the storage pool, what would be the difference in consequences between those occasioned by the pool with expanded storage and those occasioned by the present pool?
6/
Only the applicants and NRC staff offered testimony and proposed findings on the Board's TMI questions.
12 NRC at 449.
Moreover, with one minor exception (see nota 42.,
infra), intervenors raise no arguments on appeal that concern this matter.
Accordingly,'this opinion does not specifically address the Licensing Board's disposition of its TMI questions.
As is our practice, however, we' have reviewed the record and find no basis for disturbing the Board's conclusions.
found " reasonable assurance that the activities authorized by the requested amendment to the operating license can be conducted without endangering the health and safety of the public" and "will not be inimical to the common defense and security.".12 NRC at 4 57-4 58.
The Board"nsi c5' cliided.
n that a grant of_,this ' license amendment does not Eequire the preparation of an environmental impact statement (EIS) pursuant
'.7to the National Environmental Policy Act of-19 69- (NEP.A},
42_.
U.'S. C. 4321.
Id. at 456-457.
It th~ui authorized ~the Director of Nuclear
- Reactor Regulation to issue the license amendment,
. and these appeals. followed.
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II Regrettably, we must begin by noting the great difficulty i
we have had in understanding the intervenors' arguments on appeal -- particularly as they relate to their exceptions, their proposed findings of fact and conclusions of law, and the contentions and other issues litigated below.
The Commission's regulations require each party to confine its brief on appeal "to a consideration of the exceptions pre-viously filed by the party and, with respect to each ex-
.ception, (the brief) shall specify, inter alia, the precise portion of the record relied upon in support of the assertion
of error."
10*C.F.R. 2.762(a).
The exceptions, which are to specify errors in the decision below, must in turn relate to matters raised in the party's proposed findings of fact and conclusions of law.
This is because we will not enter-tain arguments that a licensing board had no opportunity to address and that are raised for the first time on appeal --
absent a " serious substantive issue."
Tennessee Valley Authority (Hartsville Plant,' Units lA, 2A, 1B, and 2B),
~....
ALAB-463, 7 NRC 341, 348 (1978).
Finally, a party's prop _osed findings and conclusions must be confined to the material issues of fact and law " presented on the record."
- 2. 754 (c).
On the other side of the coin, we will not consider exceptions that are not fully briefed.
Tennessee Valley I
I Authority (Hartsville P3 ant, Units lA, 2A, 13 and 23),
ALA3-367, 5 NRC 92, 104 n.59 (1977), and cases cited.
As we observed in Public Service Co. of Indiana (Marble Hill Station, Units 1 and 2),.UAB-461, 7 NRC 313, 315 (1978)
(footnotes omitted),
briefs are necessary to " flesh out" the bare bones of the exceptions, not only to give us sufficient infornation to evaluate the basis of objections to the decision below, but also to provide an opponent with a fair opportunity to come to grips with the appellant's arguments and attempt to rebut them.
The absence of a brief not only makes our task difficult but, by not disclosing the authorities and evidence-on which the appellant's case rests, it vir-tually precludes an intelligent response by appellees.
For these reasons we generally follow the course charted by the Federal courts and disregard unbriefed issues as -waived.
e.
A brief that merely indicates reliance on previously filed exceptions or proposed findings and conclusions, without pro-viding meaningful argument, is of little value in appellate review.
Bartsville, ALAB-4 63, supra, 7 NRC at 370.
- Indeed, a brief so deficient in argument precludes "an intelligent disposition of the issues."
Duke Power Co. (Catawba Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413 (1976).
Above all else, however, "it is.
. incumbent upon intervenors who wish to participate [in NRC proceedings] to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors ' position and contentions. "
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S.
519, 553 (1978).
Both of the intervenor briefs come up short in satisfying the criteria discussed above.
For example, while the Colemans may have invested substantial effort in the preparation of their brief, it is nonetheless difficult to discern what their arguments are, particularly as they relate.to theta 2 'eiceptionT-7/
they filed.
Most of their brief is styled " Findings of Fact" 7
Our comments take due account of the fact that the Colemans are participating in this appeal pro se.
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Thus, we do not hold them "'to those standards of clarity and precision to which a lawyer might reason-ably be expected to adhere. '"
Houston Lighting and Power Co. (Allens Creek Station, Unit 1), ALAB-590, 11 NRC 542, 546 (1980), cuoting froniT2ub m service-Electric and Gas Co. (Salem Station, Units 1 anc 4), ALAm-13o, (FOOTNOTE CONTINUED ON NEXT PAGE)
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and contains references to matters, both within and beyond the record, that have no apparent relationship to either 8
their exceptions or proposed findings and conclusions.--l In a two-page portion of their brief entitled " Exceptions,"
the Colemans attempt to link their exceptions to the " Findings of Fact" portion of their brief.
But this rather limited P
~
and generalized material can scarcely pass for meaningful
" argument." O !
As for TOLAC, it has apparently taken the f
term "brief" literally.
Its seven-page offering is simply e
7/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
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6 AEC 487, 489 (1973).
On the other hand, the Colemans were obliged to f amiliarize themselves with the Commis-sion's Rules of Practice and the proper briefing format.
Pennsylvania Power and Light Co. (Susquehanna Steam Elect:2c Station, Units 1 and 2), ALAB -5 6 3, 10 NRC 44 9,
450 n.1 (1979).
Since these intervenors were represented i
by counsel until this appeal (see note 1, supra),
they could have relied on pleadings filed earlier in the proceeding by their own counsel and others as general guidance in preparing their appellate brief.
8_/
- See, e.e.,
Br. " Findings of Fact" at 1-8, 10-12.
9/
For instance, with respect to exceptions 1, 2, 3, 8, 9,
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and 12, the Colemans argue, in toto:
1 I
The Staff failed to investigate, analyze or review the facts known by both the Staff and Licensee, as outlined in Findings of Fact III, j
IV, V, VI, VII, VIII, IX and X, in the review process in preparation of the Environmental i
Impact Analysis a~nd anal'ysis by.the Staff expert during these proceedings.
j i
11 -
,r a rehearsal of its four-page " Exceptions."
It adds little in the way of coherent argument to facilitate our disposition of this matter.
See Hartsville, ALAB-463, supra, 7 NRC at 370.
See also Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 805 (1979).
Unlike i
the Colemans (see note 7,_ suprd), TOLAC is represented in this appeal, as it was throughout the proceeding below, by counsel.
We are, therefore, neither obliged nor inclined.
to judge TOLAC's arguments by the more lenient standards.
that may be applied to arguments advanced by a layman acting without legal assistance.
We emphasi::e that these corments are intended -- not i
so much for the sake of criticism (particularly in the case as an expression of the limitations of the Colemans) that the intervenors' briefs have placed on our appellate review.
We have nevertheless endeavored to give the fullest consideration possible to every discernible argument.
After a careful review of the briefs, other pleadings, and oral argument, we find that most of the intervenors ' substantive arguments relate to the folicwing =atters :
(1) the integrity of the neutron absorption material and spent fuel rack structure in the pool; (2) the denial of TOLAC's request for further P
' analysis of the pro"
- on of oxidation to older fuel in the event of a gross loss of water from the pool; and (3) the adequacy of the environmental review.
The Colemans also allege a number of basically procedural errors in the Licensing lof Board's disposition of the case.
We address each point seriatimT-A The Colemans' contentions 2 and 6 (see note 3, supra) question the ability of the neutron absorption material to resist deterioration and thus prevent accidental criticality.
On appeal, they continue to voice this concern.
1.
First, the Colemans suggest that applicants' crit-icality calculations aFe i5 val,id fo{ failing to take. account li of the " realistic operating conditions" of the expanded pool.- f 10/
Except for the Colemans ' generalized complaints (Br.
" Findings of Fact" at 1), the intervenors raise no arguments involving the contentions dismissed earlier as a result of applicants' motions for summary dispo-sition.
See note 1, supra.
We have nonetheless examined on our own initiative the record underlying the Licensing Board's action in that regard, and we have found no error r'equiring corrective action.
Like-wise, we have discovered no other basis for concluding that the reracking and expansion of the spent fuel pool at Salem Unit 1 might either pose an undue risk to the public health and safety or have a significant effect on the environment.
j
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Exxon Nuclear Company, Inc., which supplies the now
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storage racks for Salem, actually performed the crit-icality calculations for applicants.
Exhibit ' 6-B,
Staff Saf ety Evaluation ("SE") at 2-1.
3
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- See, e.c.,
Br. " Findings of Fact" at 10.
To be sure, these calculations, which the staff reviewed and found acceptable, are not based on the actual contents of and 1
operating conditions in the pool.
Rather, they "are based on unirradiated fuel assemblies with no burnable poison and a fuel loading of 44.7 grams of uranium-235 (U-235) isotope per axial centimeter of fuel assembly."
Exhibit 6-3, Staf f Safety Evaluation ("SE") :at. 2-1. "Un-
. irradiated" fu'el is' new fuel "not 'yet " spent" in the reactor.
It thus has a higher content of fissionable material than the spenr fuel that is intended for storage in the pool and thus would have a higher keff.
" Poison" refers to neutron-absorbing material, such as boron, which de-The amount of fuel used creases reactivity and thus keff.
in the calculations (44.7 grams of U-235 per axial centi-meter) is the maximum permitted by the technical specifica-tions of the license amendment.
Id. at 2-3.
The calculations therefore conservatively postulate i
" worst case" -- that is, a situation that contemplates a
storage of a maximum smount of fissionable material in pool water containing no neutron-absorbing boron.
The keff calcu-lated for this scenario is 0.923 -.below the NRC's acceptance criterion of 0.95.
Id. at 2-2.
i L
- 14 The actual structure and normal operating conditions of the pool, which the Colemans would supplant for the conditions postulated in applicants' " worst case" analysis, would neces-sarily yield a lower keff, lessen the chance of criticality occurring, and be more favorable to applicants.
To illustrate, the proposed spent fuel storage racks will be an assemblage of open-ended, double-walled, stainless steel " squared" cylinders, approximately 14 feet long and nine inches on each.
side.
Boral (boron carbide and aluminum) plates will be welded between the double stainless steel walls.
Id. at 2-1.
The water surrounding the racks is to contain approxisately 2,000 ppm boron in the form of boric acid.
Tr. 444-448, 736-7387 The pool will store spent -- rather than unirradiated --
fuel of necessarily diminished fissionable material centent.
Thus, in actual operation, the pool will contain, in addition to the Boral plates in the rack assemblage, borated wa'er--12/
and fuel that has already undergone substantial burn :p in the reactor.
These factors mitigate, not enhance, criticality.
Applicants properly and prude.stly did not take them into account lY in performing their calculations.--
--12/
The primary function of the boron in the spent fuel pool water, however, is "to prevent the reactor water from becoming diluted" during refueling, when "the spent fuel pool water comes in contact with the reactor water. "
Tr. 445.
13/
Thus, the fact that applicants did not consider -- as
~~
the Colemans would have preferred (Br. " Findings of Fact" at 10, 12) -- the varying rates of. fuel burn up and decay
'in its calculations is irrelevant.
By using unirradiated fuel in its formula, applicants conservatively assumed there would be no burn up at all and consequently maximum ficsienable material concentration.
15 -
The Colemans appear to argue further, however, that applicants' criticality calculations are defective because they do not take into account certain additional, " normal" 14 contents of the spent fuel pool.- /
Such items include:
spent fuel assemblies, burnable poison rods, thimble plugs, a " dummy" fuel assembly and control rod, actual control rods, an empty 14-foot,,basR_et', a simila-r basket containing cut-ug, -
control rod " fingers," and a buck'et with grid straps.
Br.
" Findings of Fact" at 7.* As noted above, spent fuel contains less fissionable material than the unirradiated fuel postulated
, oison rods and control rods in applicants' calculations.
p (which also contain a " poison" like boron) absorb neutrons, thereby lowering the keff.
The other items listed -- miscel-laneous, ordinary pool hardware -- do not increase the chance 14/
The Colemans raise this particular point' for the first time on appeal.
They characterize it as " substantive information" not discovered until after the hearing.
App. Tr. 14.
Apparently applicants' counsel provided a list of the pool's " normal" contents by letter of May 16, 1980, in response to a request from the Colemans' counsel.
Br. " Findings of Fact" at 7 n. 6.
- Clearly, counsel could have requested and obtained this infor-mation earlier, before the hearing was closed.
- Moreover, intervenors ' counsel made no ef fort to bring this allegedly
" substantive" information to the Board's attention and did not mention it in the Colemans' proposed findings and conclusions, dated June 26, 1980.
We generally would dis-regard this point entirely (see p. 8 supra).
But in the special circumstanc.es of this case,iwe eddress the matter ut all '6hly ~because it e.y'idently is of some c6n-cern to the Colemdns.
of criticality.
Thus, consideration of these various contents of the spent fuel pool in applicants' criticality computations once again would have yielded a lower keff./ 2. The Colemans next contend that inadequate attention has been paid to the possibility that the Boral plates within each cell wall will corrode and deteriorate in the pool environ-19 ment, enhancing the prospect of criticality. The inner 17 Because this matter was not explored at the hearing, ~~ there is no evidence of record that explicitly discusses the effect of these assorted items on criticality. The staff's Safety Evaluation, however, stated that the criticality calculations performed by Exxon " yield the maximum neutron multiplication factor (keff] that could be obtained throughout the life of the fuel assemblies. " Exhibit 6-B, SE at 2-2 (emphasis added). This statement thus supports our conclusion that these additional pool contents do not increase the likelihood of criticality. 16/ The Colemans also again refer to the " additional contents" of the pool and argue that it was error not to consider the possibly corrosive effect of these items on the Boral plates. Presumably, the Colemans' concern, as expressed at oral argument (App. Tr. 10), is that the interaction of these articles with the borated water in the pool may create chemical substances that might corrode the Boral plates. As we observed above at note 14, the Colemans did not raise this particular point at the evidentiary hearing before the Licensing Board. However, we note that this spent fuct pool is equipped with a water puri-fication system that contains a filter and demineralizer. Exhibit 6-C, Staff Environmental Impact Appraisal ("EIA") at 4. This system, "similar to such systems at other nuclear plants," ibid., is intended to clarify and remove any foreign substances from the water that could cause the corrosion intervenors fear. See also Virginia Electric and Power Co. (North Anna Station, Units 1 and 2), ALAB-584, 11 NRC 451, 462 (1980), petition for review pending sub nom. Potomac Alliance v. NRC ( No. 80-1862, D.C. Cirs, flied July 28, 1980). (FOOTNOTE C NTINUED'ON NEXT PAGE) s
I \\ layer of Boral material in each storage cell is " sandwiched" between two layers of stainless steel. The Colemans fear that pool water will seep between these layers, corroding the neutron-absorbing Boral and impairing its ability to prevent criticality. They question whether the storage cells and racks to be used in Salem Unit 1 have been adequately tested in actual use. Further, they suggest that the cell supplier's (Exxon) claim of "95 percent leaktightness/95 percent confi-dence level" is not good enough to protect the public health and safety. Br. " Findings of Fact" at 13-15. 17 Based on its consideration of the evidence,- f the Licensing Board found that "Boral would corrode if it came into contact with the pool water. " 12 NRC at 4 4 0. But the Board also found that "the Boral sheets would be enclosed f completely in the welded stainless steel cell walls so as I to separate the Boral from the pool water and provide pro-tection against corrosion. " Ibid. It concluded that "ade-i i quate consideration has been given to qualification and i 16/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) In any event, a Commission regulation, 10 C.F.R. 50.59(b), " imposes a mandatory obligation upon the licensee -- just as enforceable as a technical specification -- to record and report all deviations from the operating procedures established for the maintenan,ce and' monitoring of water chemistry." Portland General Electric Co. (Trojan Plant), ALAB-531, 9 NRC 263, 274-275 (1979). This regulation, ~ which makes any report filed a matter of public record, in our view provides adequate assurance that a safe and i noncorrosive water environment will be maintained in the pool. 17 The applicants and staff presented evidence on contentions / 2 and 6; the Colemans presented no direct evidence, but -~ participated in cross-examination. 12 NRC ar 438, 443.
~. testing of the Boral to insure its continued integrity and ability to control reactivity. " Id. at 443. The Board further noted that applicants are committed to a long-tern surveillance program, involving the use of the same materia,1 that is in the storage cells, to detect any degradation of the cells. Ibid. Finally, the Board found that even if any corrosion were to occur, it would consist of pitting, edge attack, and the formation of srall bulges in the Boral plates. The boron carbide would remain in place and its ability to absorb neutrons would not be " appreciably" impaired. Id. at 441. The record clearly supports the Licensing Board's findings and conclusions concerning the likelihood and ef-fects of Boral corrosion. The stainless steel shrouds sur-rounding the Boral within each cell wall are seal-welded together pursuant to stringent quality control. Exhibit 6-3, SE at 2-13. Despite the Colemans' skepticism, Exxon's guar-anty of 95 percent leaktightness with a 95 percent confidence level amply satisfies the public healtb and safety standard 18/ -~ of the Atomic Energy Act. As applicants' witnesses tes-tified at the hearing, the 95 percent figures do not mean T that as many as five percedt of the-1,1797 speEt 3uel cells would leak. Rather, the 95/95 limit is simply an industry-prescribed 18 / See i~to'aic $$e[gy Act, Section 103, 4 2 U.S.C. 2133; 10 ~~ ~ C.F.R. 50.91.
6 measure of confidence that one must establish and meet to. assure that the cells are _Trem a pure fsic) statistical leak-tight
- basis, that would infer [sicj significantly less than 5 percent of the storage cells would leak.
fTr. 616-617.) To back up its compliance with this standard, Exxon i conducted " helium leak tests," which can detect extremely l small pinholes in the cell walls. Tr. 617. Based on the ~results of these tests, Exxon expressed " confidence.tha.t.. no core than 20 to 30 cells could develop a leak." .Tr. 770.. The actual results of the first helium leak tests revealed pinholes in five to ten percent o?'Ehe sample cells. Tr. 772. [ But, "after all the bugs had been worked out of the protection [ [ sic) process, (Exxon] never did discover another leaking cell." Ibid. In any event, intervenors point to no evidence f contradicting NRC staff testimony that potential storage cell f leakage is "[n)ot a safety consideration." Tr. 733. See j also Exhibit 6-B, SE at 2-15;. pp. 21-22, infra. l The Colemans' complaint that the cells have not been tested over a sufficiently long period of time in actual use likewise f ails to withstand scrutiny. The tests sub-jected samples of Boral material to a fuel pool environment for a period of approximately one year and extrapolated the l results for 40 years. Exhibit 2, Af fidavit of Edwin A.
- Liden, i
i
e - PSE&G Project Licensing Manager, at 5-6. One of applicants' witnesses testified on cross-examination that reliance on tests of this duration and extrapolations based on them is a widely accepted practice, not unique to the nuclear indus-try. Tr. 565-567. An NRC staff witness agreed that this was an acceptable -- if not " overconservative" -- approach. Tr.. 693-694. Further, in this case, the tests revealed n.othing to suggest additi.onal' tes. ting of Boral corrosion-was necessary. 1-Tr. 565-567, 615. In fact, Boral has actually been exposed, in water for up to 20 years without significant deterioration. Fol. Tr. 652, Affidavit of Dr. John R. Weeks,, NRC Staff Witness, at 3; Exhibit 8 at 2-3. Although such exposure primarily i has been within a research reactor containing deionized (rather than borated) water, testimony indicated that the boric acid I environment of a spent fuel pool would not cause "a great i deal of change" in the amount of corrosion. Tr. 603-604. Exxon's one-year test and the conclusions drawn from some 20 years of observing Boral in a water environment, how-1 ever, do not mean that applicants intend to ignore the new ] cells once they are installed in the pool. On the contrary, as the Licensing Board pointed out (12 NRC at 4 43), applicants are committed to a long-term surveillance program. One year after installation and at subsequent two-year intervals, applicants
. will examine sample Boral " coupons" from the Salem pool in i order to detect any corrosion. Exhibit 2, Liden Affidavit at 6-7. See also Tr. 497-499, 584-588. A witness for the staff testified, without challenge, that he agreed with the applicants' described surveillance program (Tr. 694-695), ~ and at oral argument staff counsel indicated that the Com-mission's Office of Inspection and. Enforcement will monitor this program (App. Tr. 55). See also Tr. 683-685. A further point should not be overlooked in connection with the issue of Boral integrity. There appears to be no dispute that Boral will corrode if it comes in contact with the pool water.
- See, e.e.,
fol. Tr. 652, Weeks Affidavit at 4; Exhibit 2, Liden Af fidavit at 4 ; Tr. 624. To be more pre-cise, however, it is the aluminum component of Boral that is subject to corrosion, rather than the boron carbide, which is inert in a spent fuel pool environment. Exhibit 2, Liden Affidavit at 4, 6; fol. Tr. 652, Weeks Af fidavit at 2, 3, 4; Exhibit 8 at 5; Tr. 664-665. Thus, even if the Boral plates themselves were to incur some pitting, edge attack, and bulging, there would be no loss in the volume or change in the chemical composition of the neutron-absorbing boro'n carbide particles. Exhibit 2, Liden Af fidavit at 6; Exhibit 8 at' 2-3; Tr.- -... - 664 6 5 h ,f
e . Asaconsequenbe, the neutron-ab'sorbing Cor " poison") 665. capability.of the Boral-in-the storage cells would not be ~ diminished, and any corrosion that occurr would not contribute to'the' achievement of criticality. Fol. Tr. 652, Weeks ' Affidavit at 1-2; Exhibit B;'SE at-2-15; TrJ~EISJ ~ The Colemans appear to argue, however, that the Licensing Board has not given adequate consideration to another " problem" associated with Boral corrosion -- the inward " swelling" of cell walls attributable to the hydrogren gas produced when aluminum corrodes. The staff's Safety Evaluation described such an occurrence at the Monticello facility in August 1978. Exhibit 6-3, SE at 2-13. The swelling of a cell's stainless steel walls can preclude either removal of the spent fuel assembly stored within or insertion of a fuel assembly into a cell. Notwithstanding arguments to the contrary, the Licensing Board explored every facet of this matter at length during the hearing and in its initial decision. It found that a similar condition could arise at Salem i# water were to leak into the cells walls. 12 NRC at 441. But the Board concluded that venting the top of each cell (by drillid'g a small' hole) to permit the gas to escape -- the procedure followed at Monti-cello -- is " adequate to protect the public health and safety" if a leak should develop. Id. at 44 3. To support this ultimate 1
+ conclusion, the Board made subsidiary findings that neither the stainless steel cell walls nor a stored fuel assembly would sustain damage from the gas pressure and swelling, and that the amount of hydrogen generated was too small to pose a risk of combustion. Id. at 441-442. F The record again supports the Board's findings and con-clusions. The staff stated in its Safety Evaluation that i this swelling, if it were to occur, would not present a safety hazard. Exhibit 6-B, SE at 2-15. The staff premised this view on tests performed by Exxon revealing that the worst consequences of the swelling phenomenen would be loss of the use of an empty fuel cell and the inability to withdraw a fuel assembly stored in a swollen cell without first venting it. Id. at 2-14. See also Exhibit 2, Liden Affidavit at 4-5; Tr. 618-619. Substantial testimony at the hearing con-cerned the relative merits of (1) venting empty cells before installation to prevent gas bdildup, and (2) venting cells by semi-remote tooling only if swelling actually occurs after installation. As the Licensing Board correctly noted (12 NRC at 442), the staff prefers the former, while applicants opt for the latter method so as to minimize the chance of possible corrosion from water entering thro. ugh the vent-holes. Compare l l j 1
i i Tr. 619-631 with Tr. - 1715-734. ~ Th'e Board {1so recognized (12 NRC at 442), however, the staff's expressed satisfaction with applicants' choice and proposed methods in this regard, i should any venting become necessary. See Tr. 714; Exhibit ~ 8 at 5.. The' staff was -unequivocal in its views that swel1ing in cell walls is an operational problem for applicants, and that safety is not a factor of any consequence with respect to venting before or after rack installation. Tr. 716, 731, 734. Moreover, the record shows no relationship between the swelling phenomenon and the correspo nding venting of cells to relieve it, on the one hand, and, on the other, the inc eased i likelihood of criticality. In any event, the evidence demonstrates that applicants have taken special steps to prevent leaking cells and the resulting swelling that occurred at Monticello. First, the storage racks at Monticello were not provided by Exxon (Exhibit 2, Liden Affidavit at 7), and they differ in design and con-struction (Tr. 458). In particular, the racks at Salem are to be composed of discrete cells -- one for each fuel asser61y -- welded to a 'hase,. rather timi~to eacli ~o'th~ r, as at Monticello. e Tr. 457-459. The cells are also sealed for greater protection against leaks, unlike those in use at Monticello. Tr. 626-627; l e 1 i
Exhibit 6-B, SE at 2-13. Second, as discussed above at I p.~18, applicants and Exxon have establishe'd.a stringent' ~ i quality. control program, learning from the experience at Monticello. Exhibit 2, Liden Af fidavit at 7; Tr. 443, 627, i 732. In sum, the Licensing Board gave full consideration 4 to all the arguments and evidence before it concerning the issue of Boral deter oration, and it concluded that the. i Colemans' contentions lacked merit. Our own review of the evidence supports that decision and clearly shows that (1) it is quite unlikely that a significant number of the ' spent fuel storage cells at Sale = Unit 1 will leak; (2) applicants i and the NRC staff will monitor the behavior of the new cells at prescribed intervals following installation; (3) if any cells do leak, the resulting corrosion will not impair the neutron-absorbing capability of the Boral; and (4) venting can safely alleviate any gas buildup within a corroded and swollen cell. None of the Colemans' arguments on a'ppeal relating to these' matters persuades us otherwise. We therefore agree with the Licensing Board that, "with respect to the issues raised by Colemans' Contention 2 and 6, the spent fuel s pool can be modified and operated as proposei without endangering the health and safety of the public." 12 NRC at 443. 4
~....
- ~
B As noted above, the Licensing Board asked what the l difference in consequences would be between a gross loss of water from the Salem spent fuel pool,with expanded capacity, a d such an event at the pool with its present capacity. The Board found that, in the absence of cool- ~~ ing water in either the present or the expande'd' pool, the~ heat generated by radioactive fission products could cause i the protective zirconium cladding around newly discharged j spent fuel assemblies to oxidize and lead to a release of fission products. In the pool as proposed, with a denser storage configuration -- and consequently less natural convection cooling -- however, there would be a higher like-20 y lihood of oxidation. 12 NRC at 453-454. The Board therefore examined the witnesses on whether this oxidation could spread from fresher fuel to older spent fuel stored nearby. 2V An NRC staff witness, Dr. Allan S. i Benjamin, testified that oxidation propagating via thermal _l_y See note 5, supra. 20' See also fol. Tr. 1387, Pasedag Direct Testimony at 4, 5, and Pasedag Further Testimony at 2. 2]/ See note 24, infra. l l 1
f j i radiation from newer fuel elements to older ones is a possibility that cannot be ruled out. Tr. 1391-1392, 1394, l 1397, 1398-1399, 1481. Another staff witness, Mr. Walter F. Pasedag, agreed, but emphasized his belief that the oxidation of fuel four years and older would be " limited" and "would not lead to a substantial release of fission products beyond those released from the freshly discharged 1/3 core." Fol. Tr. 1387, Pasedag Further Testimony at 2. Both Dr. Benjamin and Mr. Pasedag testified that certain calculations and analysis would be necessary to transf.orm this speculation into a more precise conclusion. Dr. Benj amin stated further that, without such analysis, he was unable to give an opinion on whether the propagation of oxidation.. to older fuel assemblies was more, or less, likely to occur. Tr. 1437. He expressed his belief, however, that the possi-bility of this occurrence is "significant enough" to warrant l consideration in determining the difference in consequences c between the pool as it now exists and as expanded, and that one person could do the analysis in a "few months." Tr. 1488, 1 1483. T Intervenor TOLAC then orally moved the Licensing Board 5 to suspend the hearing and order this analysis to be performed. Tr. 1492. See also Tr. 1801-1803. The Board deferred ruling, e f
' at that time but later denied TOLAC's motion and closed the record, concluding that "the further analysis cannot be jus-tified in light of the evidence which has already been received." Tr. 1495; Order of May 9, 1980. The Licensing Board subsequently reaffirmed that ruling in its initial decision (12 NRC at 455): We do not believe. . that further study is needed to reach our decision. Mr. Pasedag's testimony convinced us that even if oxidation did propagate to the older fuel the resulting radioactive release'would not be significant in comparison to the radio-active release from the recently discharged fuel. When we consider that Dr. Webb [TOLAC's witness) was unable to describe any credible mechanism for propagation despite a specific invitation to do so, and consider that a gross loss of water is in itself an event of very low probability, we do not believe that further study of propagation is necessary to answer our question. We are satisfied that in the event of a gross loss of water from the spent fuel pool, there would not be a great difference between the consequences occasioned by the proposed stcrage configuration and those occasioned by the present one. Here on appeal, both TOLAC and the Colemans contend that the Board erred in not ordering the further analysis of the propagation of oxidation from fresh to older spent fuel. TOLAC, relying on Northern States Power Co. (Prairie Island Plant, Units 1 and 2), ALAB-284, 2 NRC 197 (1975), argues that additional hearing and evidence in the form of the prop-agation analpsisJii~necessary to resolvd this issue, and"it 1 l
requests a remand and reopening of the record on this point. Br. at 1, 2. It also disputes the Board's conclusion that there would not be a great difference in the consequences of a gross loss of water from the pool as expanded and in its present configuration. Id. at 3. The Colemans simply l' point to Dr. Benjamin's testimony (Tr. 1488-1489) that further analysis is warranted. They also argue that the 1 fact that Mr. pasedag and Dr. Benjamin disagreed as to the i value and relevancy of the analysis (see Tr. 1506, 1579-1580) underscores the need for more specific data. Br. ) " Findings of Fact" at 17. It is worthwhile to note also what intervenors do not argue. While challenging the Licensing Board's decision not to seek further propagation analysis and its ultimate conclusion on the gross loss of water question, neither TOLAC nor the Colemans appear to dispute the specific under-pinnings of that conclusion -- i.e., that (1) even if oxi-dation were to spread to older fuel, the resulting radioactive releases would be insignificant compared to those from i 227 recently discharged fuel; (2) TOLac's witness was unable 22/ Indeed, on brie-? (at 2), TOLAC concedes that "this ~~ may be true." r e 9
to describe a credible mechanism for propagation: and (3) a gross loss of water is an event of very low probability. Nor do intervenors challenge any of the evidence or testimony of record concerning the propagation of oxidation to older 23/ fuel. the essence of their arguments is that beca'use one ~- witness testified that some further study is warranted, it therefore must be done. r In proceedings that involve matters of public health ' and safety, the testimony of a qualified witness calling for further analysis of any aspect of a pending proposal merits serious consideration. For that reason, intervenors' arguments for further study of the propagation of oxidation to older fuel in the pool strike a responsive chord. But upon closer scrutiny, they fail to ring true. Intervenors -- in particular, the Colemans -- suggest that there is a " conflict" between the testimony of the two NRC staff witnesses, Mr. Pasedag and Dr. Benjamin. In fact, there is no real conflict. Both agreed that propagation of 27 TOLAC casually observes on brief (at 2) that the Board excluded portions of the prepared testimony of Dr. Richard E. Webb and all of the prepared testimony of Dr. David B. Fankhauser -- both TOLAC witnesses. See 12 NRC at 451-452. Intervenor does not argue, however, that the Board erred in so ruling. In fact,.TOLAC could not now make such an argument since it of fered Dr. Webb's testimony for admission " subject to the rulings that the Court (sic] has already made striking certain portions of that testimony" OTr. 1697), and it f ailed to challenge the rejection of either witness' testimony in its proposed findings and conclusions. See p. E, supra. ~ It is of interest to note here that the Board also struck all of acolicants' testimony on the gross loss of water question as "not responsive." 12 NRC at 451.
oxidation to older fuel "cannet be ruled out. "
- See, e.g.,
fol. Tr. 1387, Pasedag Further Testimony at 2; Tr. 1391. Dr. Benjamin was simply unable to state pr'ecisely whether such propagation is more or less likely to occur --- in effect, to quahtify or reduce it to-a known percentage. -- without t performing further calculations and analysis. -Tr.
- 1437,
~ 1482, 1488-1489'. While this information might be of academic inte, rest, or value, the existshce of other undisputed factors in this case makes it unnecessary for' decisional purposes. 3_ For example, a significant factor in connection with the Board's consideration of the propagation of oxidation to older fuel in the event of a gross loss of water is the amount of radioactive releases likely to be associated with the oxidation. The analysis suggested by Dr. Benjam!.n would not provide further data on this point; it would only confirm or reveal more precisely the percentage chance that oxidation would even spread to older fuel. In fact, the testimony of I Mr. Pasedag assumed that there would be some oxidation of older fuel but indicated that the radioactive releases from it would not substantially exceed those from fresher spent
l 24' l fuel. Ee explained why: [t]his is a result of several factors, including the [ prior] decay of volatile fission products (other than Cs-137), the fact that the-primary-source of energy is external to the rods, the l thermal insulating property of.the zirconium oxide layer which would reduce heat conduction to the interior of the rod, and the formation of temperature g_r.adients opposed to the direction of diffusion. Although some eutectic formation would occur after heating the rod to the zirconium melting temperature, the 002 matrix cannot be expected to reach its melting point. Fol. Tr. 1387, Pasedag Further Testimony at 2. See also Tr. 1448-1450. Intervenors point to no testimony or evidence that contradicts Mr. Pasedag's statements concerning the lim-l 25/ ited rel. eases from oxidized older fuel assemblies. 24 / In this regard, a reminder is in order. The proposal under consideration in this proceeding is to expand the ~~ capacity of Salem's spent fuel pool. A major difference 4 between the pool as expanded and as it now exists will be the presence of older spent fuel (four years and older). It is thus the effects of that difference that we must assess -- not the ef fects attributable to the spent fuel pool itself. 2Y TOLAC's witness, Dr. Webb (see note 23, supra), testified that substantial releases of radioactivity could result ~~ from a zirconium " fire" (oxidation) following a gross loss of pool water. The Licensing Board, however, found j that Dr. Webb was unable to describe with any degre'e of specificity a mechanism for release of the radioactivity l from the pool or to relate his testimony to the presence of older spent fuel in the pool. 12 NRC at 452-453, 455. Even though intervenors have not directed.our attention to any portion of Dr. Webb's testimony that addresses this matter, we have nonetheless reviewed both his s written and oral submissions. We agree with the Licensing Board (id. at 453) that much of it is "ill-organized and diffTeult to follow." 5.ee, e.e., 1706-1716, and prepared testimony.of Dr.2 Webb theter#,Tr. +,,fe.nced. 1 i
Another f actor contributing to the Licensing Board's determination not to require further analysis of oxidation i propagation is its finding that the gross loss of water postulated in its question is "itself an event of very low probability." 12 NRC at 455. In fact, no witness was able to describe a credible mechanism for such an occurrence. _Id. at 445. Although TOLAC calls the testimony of its witnesses, Dr. Richard Webb and Dr. George Luchak, " persuasive" (Br. at 3), our review of their sdbmissions reveals that they fall far short of that generous characterization. As we observed abe've (see notes 23 & 25, supra), much of the prepared testimony of Dr. Webb was "'ill-organized and dif ficult to follow'" and stricken from the record without TOLAC's objection. In particular, the Board excluded vir-tually all of Dr. Webb's testimony relating to how a gross loss of water might occur. Tr. 1377-1378; fol. Tr. 1697, Webb Testimony dated February 27, 1979, at 16-33. As for ^ Dr. Luchak, the Board found him "not qualified" to testify about the probability or consequences of a gross loss of 26 / Again TOLAC fails to cite the. specific testimony that it deems " persuasive." l i T
water event at Salem. Tr. 913; 12 NRC at 445. It struck that part of Dr. Luchak's testimony, and TOLAC neither objected in its proposed findings and conclusions nor objects here on appeal. An NRC staff witness, Mr. Gary Zech, testified on cross-examination that there was no credible mechanism for a serious accident at the Salem spent fuel pool. Tr. 1042-1043. He also testified in response to Board cuestioning that the pool environment is a "very stable" one, constructed of reinforced 27/ concrete and classified seismic category 1. He could conceive of f no credible mechanism for the loss of water from the pool, except by slew evaporation, and noted the existence of several sources of back-up water. Tr. 1047-1048. Another staff witness, Mr. Pasedag, was also unable to identify any credible mechanism for a gross loss of water. The largest credible leak he could postulate was 710 gallons per minute -- or a decrease in water level of 1.1 inches per minute from the approximately 39 feet 28/ -~ of water in the pool. Even this leak could occur only in the " highly unlikely" event that all 10 leak-off tubes were to discharge at maximum capacity as a result of multiple punc-tures of the pool's stainless steel liner. At least two alarm 1 27/ See Regulatory Guide 1.29, Seismic Design Classification ] ~~~ (September 1978) ; 10 C.F.R. Part 100, Appendix A, III(c). 28,/~ See Final Safety Analysis Report, Fig. 9.4-1.
35 - systems would detect the leakage and automatically activate the sump pumps, permitting eventual capping of the leak-off tubes. Fol. Tr.1387,.Pasedag Direct Testimony at 1-2. Based on the relevant, admissible evidence of record, we find that the Licensing Board was justified in concluding that a gross loss of water from the Salem spent fuel pool was an event of such low probability as to warrant no further 29 11 NRC a.t 536-537.- / inquiry. See also ALAB-588, supra, 29/ Intervenors raise two other points that relate to the hypothetical gross loss of water event. First, the Colemans complain that inadequate attention has been paid to an event of incomplete drainage of the pool. Br. " Findings of Fact" at 8-9. This matter arose briefly during Board questioning at the hearing (Tr. 1428-1433), but no party pursued it further or discussed it in its proposed findings and conclusions. Consequently, the Colemans are precluded from raising the issue here on appeal (see p, 8, supra). We note, however, that an incomplete drainage is inherently a variation of a gross loss of water. As such, it would be reasonable to assume that, like a gross loss of water, there is no identifiable, credible nachanism for an incomplete drain-age event either. Second, TOLAC appears to argue that, in the event of a gross loss of water, the proposed increase in spent fuel storage capacity would then have a significant effect on the human environment, so as to require the preparation of an environmental impact statement. Br. at 3. NEPA, however, does not require consideration of circumstances that are "only remote and speculative pos sibilities. " See Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827,,838 (D.C. Cir. 1972). In view of the absence of any credible mechanism for a gross loss of water, NEPA clearly does not require an EIS on the hypothesized consequences of such an unlikely event. t
1 i . The record supports the Licensing Board's findings that (1) the radioactive releases from any oxidation of older fuel would not be significant relative to those from recently discharged fuel, (2) a gross loss of water is an event.of very low probability, and (3) further analysis of whether oxidation could propagate to older fuel is there-fore "not needed." 12 NRC at 455. Interv,enors have, 'thus f ailed to carry their " heavy burden" of convincing us that a propagation analysis would have made a relevant contribution to the Board's resolution of its gross loss of water question. See Kansas Gas and Electric Co. (Wolf Creek Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978), and cases cited. Generalized assertions to the effect that "more evidence is needed" are simply not enough to support a reopening of the record. --101 30/ Prairie Island, ALAB-2 84, supra. upon which TOLAC relies in requesting a reopening of the record, is inapposite. Ihat case involved "a difficult, highly technical [ reactor) safety issue having many facets" -- steam generator tube integrity. 2 NRC at 206. In ALAB-284, we identified five major areas of concern that warranted further evi-dentiary hearing (condensate demineralization, detectable leakage before tube failure, sufficiency of eddy current surveillance, monitoring of secondary water chemistry, and tube plugging criteria). Because we found (1) certain evidence inconsistent and inadequate to support that Licensing Board's decision, (2) the absence of any reference to other unfavorable evidence, and (3) new evidence not considered by the Board below, further evidentiary hear-ings were imperative. The denial of what has been revealed as an unnecessary analysis of oxidation propagation in the instant spent fuel pool case is in no way comparable to the acute circumstances in ALAB-2 84.
C Only one of the contentionc litigated below raised an issue concerning the adequacy of the environmental review of the instant spent fuel pool expansion proposal. TOLAC's contention 1 asserted that applicants had not given sufficient consideration to various alternatives to the pool expansion. 31/ Intervenors nonetheless now raise several afguments that relate more broadly to environmental. issues, only some of which arise out of TOLAC's contention 1. - - 1. Although its contention referred to several possible alternatives, TOLAC asserts here on appeal only that " storage at an independent spent fuel storage installation (ISFSI) in e a dry unpopulated climate was not adequately evaluated by the [ applicants)." Br. at 3. As support for its view, TOLAC simply refers to unspecified direct testimony of Drs. Webb and Luchak. TOLAC's argument is wholly without cerit. The written testimony of applicants' witness, Mr. Liden, indicated that, in the absence of reprocessing (which President Carter halted in 1977) and an express agreement with Salem, storage at inde-31/ See note 4, supra. The Licensing Board's question concerning a hypothetical gross loss of water also in-jected an environmental issue into the proceeding. The Board queried whether the consequences of such an event in the pool as expanded would require evaluation in an EIS. 12 NRC at 451. The Board eventually concluded they would not (id. at 455, 456), and TOLAC appears to challenge this conclusion on appeal. But as we pointed out in note 29, supra, NEPA does not require an EIS on the hypothetical consequences of a gross loss of water.
e ~ pendent installations such as AGNS at Barnwell, S.C., GE at Morris, Ill., and NFS at West Valley, N.Y., is not available. Exhibit 2, Liden Affidavit at 10-11. Mr. Liden also averred that the economic and environmental costs of constructing an ISFSI would be greater than the reracking proposed for Salem. Id. at 11. The staff's environmental impact appraisal (EIA) ~ explored numerous alternatives, including storage at both ~ private and government-sponsored ISFSIs, and fully ' supported Mr. Liden's views. The EIA also noted that, apart from the greater costs associated with the construction of an ISFSI, the time necessary to build and begin operating an ISFSI (approximately five years) effectively eliminates this as a feasible alternative for applicants' approaching storage needs. Exhibit 6-C, EIA at 14-16. TOLAC points to no specific testimony on either direct or cross-examination that contradicts this, and we have discovered none ourselves.1LI 32/ Review of the testimony of Drs. Webb and Luchak, upon which TOLAC generally relies, pr.ovides a possible clue ~~ as to why TOLAC neglected to cite any portions specifi-cally (Br. at 3). Dr. Webb's testimony did not even address the " consideration of alternatives" contention. Dr. Luchak's written testimony, which repeated much of the cost data in the staff's EIA, asserted only that "[ilt appears to be a highly feasible alternative that utilities could collectively obtain a site and construct an ISFSI." Fol. Tr. 918, Luchak Testimony at 3-4. No facts or probative matter is cited to support this sweeping statement. The remainder of Dr. Luchak's statement as well as his oral testimony were similarly generalized and failed to refute that of the applicants and staff.
In these circumstances, the Licensing Board quite perly found (12 NRC at 446) bh-construction and use of an ISFSI .c would be more. costly than the proposed expansion at Salem, that it woptd produce ~ environze.ntal impacts as great or greater than the proposed expansion, that it would "~ not reduce appreciably t.e risk or conse-h quences of a gross l'esf rf water..in the spent fuel pool, and that it is unknbwn whether an ISFSI can or will be constructed in time to. : ~ be availible for storage of'sp'est fuel from ~ Salem Unit 1 when that storage is needed. We therefore also agree that applicants and the staff adequately considered an ISFSI as an alternative to reracking the existing pool at Salem.--33/ 2. The Colemans assert that the Licensing Board erred in finding, with respect to the alternative of offsite storage at other reactors, that " Hope Creek Units 1 and 2 . are 9 31/ Indeed, as the Licensing Board evidently recognized (12 NRC at 457), the consideration of any alternar.ives was gratuitous. Sections 102( 2) (C) and (E) of NEFA recuire consideration of alternatives only when the proposed action is a " major" one "significantly affect-ing the quality of the human environment," or " involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. 4 332 (2) (C), (E). See North Anna, supra, 11 NRC at 456-459. As we discuss 'elow (pp. 4 2"467, the record shows-that approval of the o instant pr6posal does not constitute a major action with a significant effect on the environment.
- Moreover, j
no party has suggested, before either the Licensing Board or us, that the Salem pool expansion involves unresolved conflicts between alternative uses of available resources as envisioned by Section 102(2) (E). i
h - 40 the only other nuclear facilities owned by the Licensee. " 12 NRC at 4 4 7. They state that the lead applicant, Public Service Electric and Gas Co., owns a 4 2.5 percent interest in Units 2 and 3 of the Peach Bottom facility. Br. "Excep-tions" at 1. The Colemans, however, make no attempt to argue that the challenged statement fatally impairs the Board's ultimate conclusion that offsite storage at other reactors I' is not a feasible alternative. ^ Applicants admit (Br. at 58) that PSE&G owns a portion of Peach Bottom.2SI But as both they and the staff point out, this minor factual misstatement provides no occasion for re-versal of the Board's conclusion. Relying on the staff's EIA, the Licensing Board found that Hope Creek has boiling water reactors (BWR) that use fuel assemblies with dimensions different from those used at the pressurized water reactors (PWR) at Salem.
- Thus, the racks at Hope Creek would have to be replaced for storage of Salem's spent fuel, with a resulting reduction in storage capacity.
The Board also noted a government report concluding 34/ The Licensing Board's error appears to arise from a statement in the EIA that "[t]he only other nuclear r facilities owned by the licensee are the Hope Creek Units 1 and 2 currently uncer construction. Exhibit 6-C, EIA at 17. Although the staff submitted l the EIA well before the hearing commenced, a ppar ently no party challenged the accuracy of the statement at the hearing. i..,7 - -. + - - 7
that up to 46 percent of the operating reactors in the United States will be unable to refuel between 1975-1984 unless additional spent fuel storage space is found. 12 NRC at 447-448. See also Exhibit 6-C, EIA at 18. Finding no evidence to the contrary, the Board concluded, in agreement with the staf f, that applicants "could not prudently rely upon the Hope Creek units or any'other power facility to . provide additional storage when the Salem pool is filled. " 12 NRC at 448 (emphasis added). We take official notice of the fact that the reactors at Peach Bottom are, like Hope Creek, BWRs. Thus, the Board's unchallenged finding concerning the need for new racks of - different dimensions in order to store Salem spent fuel at Hope Creek pertains with equal force to Peach Bottom. Simi-larly, the Board's finding as to the limited storage space available among reactors generally at this time perforce extends to Peach Bottom. Indeed, the Licensing Board explicitly ctated that applicants could not rely on "any other power facility" for st6: age. Ibid. At worst, the Board's statement constitutes harmless error and thus gives no cause for reversal. 3. Both TOLAC and the Colemans contend generally that the Licensing Board erred in concluding (12 NRC at 456) that "[t]he grant of the license amendment requested in this pro-
'. ceeding is not a major Commission action significantly affecting the quality of the human environment," and thus does not require an EIS. TOLAC Br. at 4-7; Coleman Br. " Exceptions" at 2, " Conclusions" at 1. 'Intervenors make no real effort, however, to explain on appeal exactly why in their view approval of this proposal to expand Salem's spent fuel pool is such a " major" federal action.11! TOLAC implies 'that the action is major because it will permit "long-term" '~ storage of spent fuel for the duration of Salem's license. The Colemans note that the proposed license amendment will increase the capacity of the Salem pool more than fourfold. But more than the size and duration of a project must be evaluated when determining whether its federal approval con-stitutes a major action with a significant environmental impact. In order to make that evaluation, the precise 'ederal f 36/ action involved must be defined.-- Here the proper focus of the inquiry is the incremental effect on the environment occasioned by the proposed license amendment. Portland General Electric Co. (Trojan Plant), ALAB-531, 9 NRC 263, 266 n.6.(1979); 35/ The exception to this statement is, as we noted earlier, ~~ TOLAC's apparent argument that the possibility of a gross loss of water makes this a major action. For the reason set forth in note 29,,, supra, we rejected this assertion. 36/ See Aberdeen & Rockfish R.R. v. SCRAP, 422^U.S. 289, 322 ~~ (1975).
4 Northern States Power Co. (Prairie Island Plant, Units 1 and 2), ALA3-455, 7 NRC 41, 46 n.4 (1978), remanded in part on other crounds, Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979). 37/ The EIA concluded -- after a detailed analysis of all aspects of the proposal, including the substantial increase in the number of assemblies it would permit and the extension of storage capability through 1993 or 1996 -- that "there will be no significant environmental impact attributable.to the proposed action other than that which has already been predicted and described in the Commission's Final Environmental Statement for the Facility dated April 1973." Exhibit 6-C, EIA at 27. The staff therefore determined that a full EIS need not be prepared. Ibid. In agreeing with this finding, the Licensing Board correctly observed, "[n]one of the testi-mony or cross-examination by intervenors or interested states showed that the Staff's conclusion 'was incorrect, or that the evidence supporting that conclusion was inadequate. " 12 NRC at 456-457. TOLAC, in fact, affirmatively refused to litigate in this administrative proceeding the unspecified deficiencies it perceived in the EIA (with the exception of its challenge 37/ See note 24, supra. O e m
. to the cdequacy of the consideration of alternatives). App. Tr. 24-27. This was so despite the fact that the Commission's regulations clearly permit and encourage parties to challenge the admission and content of the staff's EIA at hearing. 10 C.F.R.
- 51. 5 2 (d).
Yet TOLAC now boldly argues that it has been deprived of its procedural rights under NEPA. App. Tr. 62. And, through this appeal, it intimates that it is finally ready to litigate still largely unidentified and unparticu-larized deficiencies it sees in the EIA and seeks to overturn the Licensing Board's thorough, well-reasoned decision. The 4 Supreme Court's comments in Vermont Yankee, supra, 435 U.S. at 553-554, on the similar conduct of an intervenor in another NRC proceeding provide a particularly appropriate response to TOLAC: 'EA]dministratidproceedings should not. be a game or a forum to engage in unjustified obstructionism by making cryptic and ob-scure reference to matters that "ought to be" considered and then, after failing to do more to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency f ailed to consider matters 3 " forcefully presented." In fact, here the agency continually invited further clarification of Saginaw's contentions. Even without such clarification it indi-cated a willingness to receive evidence on the matters. But not only did Saginaw decline to further focus its contentions, it virtually declined to participate, in-dicating that it had "no conventional findings of fact to set forth" and that it had not " chosen to search the record and respond to this proceeding by sub-mitting citations of matter which we believe were proved or disproved."
45 - Intervenors also show a misapprehension of the evidence upon which the Licensing Board based its conclusion that this proposal would not have a significant impact on the environment. They believe that the Board " relied on" the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0575 (August 1979), and its predecessor draft statement, NUREG-0404 (March 1978). The Board, however, explicitly stated that it based its conclusion on "the record of this proceeding, particularly 12 NRC a t 4 5 6.'38 / the evidence supporting the Staff's (EIA)." Neither NUREG-0575 nor NUREG-04 04 was admitted as part of the record in this case. The Board simply " note [d)" that the staff had published NUREG-0575 in August 1979, and the Id. at 457. SUI former in no way purported to rely on it. 3F The August 1979 generic EIS embodied in NURIG-0575 does not even apply to this proceeding. Instead, the January ~~ 1979 EIA addressed five factors identified by the Cc= mission for consideration "during the period required for prepara-tion of the generic statement." See " Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel," 40 Fed. Reg. 42801, 42802 (September 16, 1975). As the Board pointed out, none of the five factors was the object of any controversy or evidence at the hearing. 12 NRC at 457. TOLAC suggested at oral argument (App. Tr. 22-23) that, 39 as a matter of policy, the Commission has determined that no spent fuel pool expansion could have a significant impact We know of no such policy, and the on the environment. EIA here, which is devoted to an analysis of the partic-ular features of the Salem. pool, belies the existence of such ayll'ey.10'E ccrurse, if..this perlicy did exist, there would have been no need for the staff to have prepared an EIA or for the Licensing Board to have made a NEPA fincing in this case.- Even the generic EIS, NURIG-0575, which represents final Commission. action as of February (500TNOTE CONTINUED ON NEXT PAGE)
l l r 9 In our view, the Licensing Board's conclusion that i approval of the Salem spent fuel pool expansion is not a i major action significantly affecting the environment is fully consistent with the record. The intervenors had every opportunity to demonstrate otherwise but failed to do so. We therefore have no basis for overturning the Board's NEPA finding on that score. See Prairie Island, ALAB-455, supra, 7 NRC at 45. d 4. Finally, the Colemans make oblique arguments as to the need for an environmental assessment of the alleged l long-term storage of spent fuel at Salem beyond the expira-l tion of the Unit i license. See Coleman Br. " Introduction" l 40/ at 1, " Findings of 7act" at,1, " Exceptions" "at 2. Their contention 7, which the Licensing Board dismissed and later r refused to reinstate, raised this precise issue. LBP-80-10, supra, 11 NRC at 337-338. The Board noted that the Commission was pursuing long-term on-site storage in an ongoing rule-making and that it would be " contrary to the Commission's Policy" to entertain the Colemans' contention 7. Id. at 338. h 39/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 27, 1981 (46 Fed. Reg.14 50 6)', and 'now mucIIes to 'soent ~~~ fuel pool expansion cases, states that "1blecause there are many variations in storage pool designs and limitations caused by spent fuel _already in some pools, the licensine reviews must be done on a case-by-case basis." NUREG-0575, Vol. 1, 8-1. 40/ Contrast this argument with that of TOLAC, concerning "long-term" storage for the duration of Salem's operating ~~ license. See p.: 42, supra. l
h We agree. The court in Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), specifically authorized the Commission to explore this matter in a rulemaking. Accordingly, the Commission instituted its pending " Waste Confidence" pro-41/ ceeding. The Colemans' complaints about the possible ~ long-term storage of spent fuel at Salem thus amount to a collateral attack on that rulemaking, and we cannot properly entertain them here. North Anna, supra, 11 NRC at 463-465. D l The Colemans devote most of their brief to essentially 42/ procedural objections to the conduct of~the proceeding below. The relevance of any of their points 'to the Licensing Board's ~ ultimate decision is not evident. More importantly, the colemans raise these arguments for the first time on appeal; their counsel did not pursue any of these matters either during the hearing or in the Colemans ' proposed findings and conclusions. Consequently, the Licensing Board had no opportunity to address / TOLAC is a participant in that proceeding. App. Tr. 28. 42/ Among these many objections are the following: " exclusion" from the record of.certain letters by Robert M. Crockett (PSEGG employee), Brian K. Grimes (NRC employee), and F.P. Librizzi (NRC employee); failure of the Board to address matters discussed in a limited appearance statement by Michael DiBernardo; the Colemans' " exclusion" from an in camera hearing concerning proprietary information7f Exxon; the Board's denial of certain of the Colemans' interrogatories; the Board and staff's " ignoring" some " reportable occurrences" (FOOTNOTE CONTINUED ON NEXT PAGE) I
j ~ i their arguments. As we pointed out earlier in this opinion ) ~ ~ ~ (see p. 8, supra 1,.in the absence"of "a serious substantive issue," we will not entertain arguments raised for the first time on appeal. Hartsville, ALAB-463, supra, 7 NRC at 348. We have carefully considered the Colemans' myriad objections not already discussed in this opinion. We find that they raise no serious substantive issues affecting the Licensing Board's decision on either health and safety or environmental matters. Indeed, many of these objections are wholly without basis in fact or law. Moreover, we find no denial of the Colemans' procedural rights or other error re-quiring corrective action. III For the foregoing reasons, the October 27, 1980, initial 3 decision of the Licensing Board is affirbed. It is so ORDERED. J FOR THE APPEAL BOARD O_ A S -b5 C. Jeep Bishop i Secrehry to the Appeal Board l 42/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) ~~ at Salem in 1979 and 1980, including a leak in the spent fuel pool; and the Board's conclusion, in connection with the Three Mile Island questions it raised (12 NRC at 449), that staff testimony cured an uncertainty about the post-accident level of radia-tion in the TMI spent fuel pool area.
'2 -.4 .J h ._.wa SL m C-0 O e 6 k P ATTACHMENT 3 i l i l 1 l l l l i 4
n 4 a; Gl '(. t 1 UNITED STATES OF AMERICA l ' ~. 'ggg > NUCLEAR REGULATORY COMMISSION E~!. \\
- :1 k THE NUCLEAR REGULATORY COMMISSION
\\q " 4, Docket No. 50-272 OLA IN THE MATTER OF (Spent Fuel Pool) PUBLIC SERVICE ELECTRIC et al f. GAS COMPANY,, INTERVENOR, TOWNSHIP OF LONER ALLOWAY N EK'S PETITION IN (Salem Nuclear Generatina Station' Unit 1) DECISION AND ACTION OF THE ATOMIC SAFETY & LICENSING APPEAL BOARD (10 CFR 2.786)
SUMMARY
OF ALkB DECISION Insofar cs the Township of Lower Alloway Creek (TOLAC) is concerned, the decision of the Atomic Licensing Appeals Board: (1) Affirmed the Order denying TOLAC's motion for further analysis of the nronaqation of oxidation to older fuel in the event of a gross loss of water from the pool, (2) Dismissed the exception that the oranting of the license would be a major commission action and therefore there would be a reouirement for an environmental imoact ) statement under the National Environmental Policy Act l (NEPA) of 1969, 42 U.S.C., S4321, et sea, and ) ) (3) Dismissed the exception that the findings of the Atomic Safety and Licensing Board were against the weight of the evidence, &@W50b Nebse l
a-t MATTERS OF FACT AND LAW RAISED BEFORE THE ATOMIC LICENSING APPEALS BOARD Exception #1 before the Atomic Licensing Appeals Board l raised the issue of whether further analysis could predict more orecisely whether oxidation could propagate to older fuel and that calculations for such analysis could be performed. (Initial Decision, page 39, line 1: Tr. 1483). Intervenor TOLAC, made a motion that the additional analysis should be oerformed and + ,the motion was denied by the Atomic Safety & Licensing Board. (Tr. 1493, line 4) (ALAB Decision, July 17, 1981, page 31, line 7, et seg. ) Exception #5 raised the point that it was error to hold that the license amendment requested by the applicant was not a major commission action significantly af fecting the cuality of + the human environment. The Intervenor raised the issue that the license amendment required an environmental impact statement under NEPA of 1969, 42 U.S.C. 54321, et sec., and the larger issue that i the Nuclear Regulatory Commission (NRC) in combination with nuclear plant licensees has created the national policy of long term storage l at-reactor-sites without preparing a generic environmental impact l statement in violation of the recuirements of NEPA, 42 U.S.C. S4332 (2) (c) (i) thru (v). Exceptions #2, #3, and #4, deal with the Initial Decision of the Atomic Safecy & Licensing Board being against the weight of the evidence introduced by TOLAC. Under 10 CFR, $2.786 (4) (ii), it does not appear that the Commission would grant a Petition for f Review since the intervenor TOLAC would have to prove that the f Decision of the Atomic Safety and Licensing Appeal Board was clearly.
P ? erroneous and contrary to the resolution of that very same issue by the Atomic Safety and Licensing Board. THE DECISION OF THE ATOMIC LICENSING APPEALS BOARD WAS IN ERROR POINT I. (EXCEPTION 91) - TOLAC'S MOTION FOR ADDITIONAL ANALYSIS SHOULD HAVE BEEN GRANTED AND THE MATTER SHOULD BE REMANDED TO THE ATOMIC SAFETY & LICENSING BOARD. It is contended that the Atomic Safety & Licensing poard committed factual and legal error in rejecting the testimony of Dr. Alan S. Benj amin of Sandia Laboratories that further analysis could predict more precisely whether oxidation could propagate to older fuel and that calculations for such analysis.could be performed. { TOLAC made a motion that the additional analysis should be performed and the -motion was denied by the Atomic Safety & Licensing Board. (Tr. 1493, line 4). (See Initial Decision, page 39, line 1:Tr.14 8 3). There is authority that additional evidentiary hearings should be ordered where there are unresolved issues. This occurred In The Matter of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) Docket Mos. 50-2R2 and 50-306, August 11, 1975, ALAB-284: In this case several unresolved issues including condensate demineralization, detectible leakage before tube failure, sufficiency of Eddy curre'nt surveillance, monitorino of secondary water chemistry and tube plugging criteria - were cause l for reopening the record and ordering an additional evidentiary { hearing. I Apparently, the Atomic Safety & Licensing Board reached the conclusion that even though Dr. Benjamin testified that further analysis could credict more precisely whether oxidation would ~'^
propagate to older fuel, that such an analysis was not necessary in that the radioactive releases from older fuel would not be significant in comparison to radioactive releases from recently discharged fuel. While this may be true, Dr. Richard E. Webb's testimony on radioactive releases as well as the offered testimony of Dr. Frankhauswer was excluded by the Atomic Safety & Licensing Board. More important, the critical question as to whether the radioactive releases in an enlarged pool would be greater than the radioactive releases in the pools originally designed remains unanswered. The Atomic Licensing Appeals Board should have remanded the case to the Atomic Safety and Licensing Board and directed that the record be reopened and a further evidentiary hearing should be ordered to take place so that the analvsis indicated by Dr. Benjamin will be performed. (See Initial Decision,- page 39). The Atomic Licensing Appeals Board apparently reached the conclusion that the Intervenor TOLAC had a " heavy burden" of convincing the Atomic Safety and Licensing Board and the Atomic Licensing Appeals Board that a propagation analysis would have made a relevant contribution to the Board's resolution of the gross loss of water question. This conclusion is rather interesting when one considers that the Atomic Safety & Licensing Board struck-all of applicants testimony on the gross loss of water question _4_
~ in that it was not responsive. (12 NRC at 451; ALAB Decision of t July 17, 1981 at page 30, following footnote 23). The effect of the Atomic Licensing Appeals Board Decision is to create the impression that an applicant can file totally unresponsive testimony to a legitimate and serious question raised by an Atomic Safety and Licensing Board, and still obtain the amendment that is reauested by the applicant. Moreover, the impression is clearly created I that the Nuclear Regulatory Commission staff witness, Mr. Pasedag carried the ball for the applicant since the effect of the applicant's testimony being stricken as unresponsive, was that the applicant filed no testimony whatsoever in response to the Board'* question even though ordered to do so. It would seen, that some of the characterizations engaged in by the Atomic Licensing i Appeals Board in respect to testimony offered by TOLAC are unfair and unwarranted since TOLAC could have relied entirely on cross-examination in respect to the Board's question and not produced any direct testimony. TOLAC was not the applicant.
- Instead, TOLAC offered extene.ve direct testimony on the ouestion raised i
by the Atomic Safety and Licensing Board. TOLAC considers the characterization that intervenors had a " heavy burden" to be in L error. Certainly, the burden of the intervenor TOLAC in resoect f to the Board question was no greater than that of the applicants. Apparently, the Atomic Licensing Appeals Board at pages 31 and 32, of the Decision of July 17, 1981, consider that Mr. Pasedag's testimony put to rest the question as to whether there. l -S-
would be radioactive releases if in fact there were fires (oxidation) spreading to older fuel. The Atomic Licensing Appeals Board dismisse the testimony of Dr. Webb which is treated in footnote 25, on page 32 of the Decision of July 17, 1981, as not probative since Dr. Webb was unable to describe a mechanism for the release of the radioactivi from the pool and relate his testimony to the presence of older spent fuel in the pool. It is also true that the Atomic Safety l and Licensing Board in paragraph 75 at page 70 of the Initial Decision disparaged the testimony of Dr. Webb. However, Dr. Webb's qualifications and testimony are cart of the record. The testimony is extensive and difficult to carse. However, taken in its totality, the testimony does raise the spectre of serious consequence in the event of a gross loss of water accident in the pool. Apparently, both Dr. Benjamin and Dr. Webb agree that additional analysis is required. For purposes of this Petition, the Commission ask itself whether it will allow the Board's question to be must answered only by Mr. Pasedag. There is no doubt that Mr. Pasedac and Dr. Webb have considerable disagreement as to the consecuences of a zirconium fire in the spent fuel pool. Apparently, Mr. Paseda-is of the opinion that there could not be any significant radioactiv-releases from the old fuel. Dr. Webb was of the opinion that there would be considerable releases of cesium and strontium (Tr. 1702, 1731 - 2. The Atomic Licensing Appeals Board is of the opinion that Prairie Island, ALAB-284, involved more difficult and highly technical safety issues requiring resolution and is not on ooint in respect to the unresolved safety cuestions that TOLAC contends surround the Board's question concerning a gross loss of water
O. accident in the spent fuel pool. Tolac respectfully disagrees. In fact, at page 70, footnote 46 of the Initial Decision of the Atomic Safety and Licensing Board it was observed that the Board's question involved complicated physical processes and in fact, Dr. Benjamin initially expressed an opinion that propagation of fire in the spent fuel pool _was more probable than not. It is true, that this opinion was changed as detailed in footnote 46, however, the very candor with which the Atomic Licensing and Safety Board credits Dr. Benjamin should certainly carry through, and additional analysis of the question of propagation of fire in the spent fuel pool should be more thoroughly studied both as to its probability of occurrence and the consequences of radioactive release. The record below falls far short of resolving the Board's own cuestion in respect to this serious matter involving public health and safety. POINT II. THE ENLARGEMENT OF THE SPENT FUEL POOL AT SALEM 1 AND CONSEQUENTLY AT SALEM 2 ALONG WITH THE EXPANSION OF SPENT FUEL POOLS AT PRACTICALLY EVERY NUCLEAR POWER PLANT OPERATING IN THE UNITED STATES CONSTITUTES MAJOR COMMISSION ACTION SIGNIFICANTLY AFFECTING THE QUALITY OF HUMAN ENVIRONMENT AF D THERE HAS BEEN Nn GENERIC ENVIRONMENTAL IMPACT STATEMENT PUPSUANT TO THE REQUIREMENTS OF 42 U.S.C. 4332 (2) (c) (i) thru (v). Either through intention or inadvertence, the NP.C has developed a masterful strateay for avoiding the requirements of NEPA, 42 U.S.C. 54332 (2) (c) (i) thru (v). NUREG-0575, volume 1 " Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel"(August, 1979) discusses alternatives at ,Section 3.0, page 3-1. Significantly, the away-from-reactor alternative is not given a NEPA type analysis although the away-frem-reacter concept is given tancential mention at pages 3-8 and ?
9 TOLAC contends that the NRC is obligated to give away-from-reactor storage a detailed NEPA analysis as an alternative to increasing at-reactor storage capacity. This has not been done by the NRC. In it's announcement dated September 15, 1975, the Commission stated its position that, in the public interest, there would be no deferal of licensing actions on the individual expansion of at-reactor spent fuel storage capaicty while the Final Generic Environmental Impact Statement (NUREG-0575) was.being prepared. t As of January,1979, 39 applications to expand capacity were approved and 65 applications were filed. There is no doubt we now have what may be a final solution to the spent fuel storage problem. The f ailure of NUREG-0575 to adequately consider the away-from-reactor alternative violates NEPA. The fact that the NRC attempts to say that at-reactor storage is only interim storage and not permanent disposal is merely an opinion that may -l have no foundation in reality. The long absence of any orders for light water nuclear power olants may very well mean the end of the first genre of nuclear power plants in the United States. Even though the Commission has initiated a proceeding i to review the basis for confidence for safe waste disposal or terminal disposal which will eventually be available, this does not alleviate the potential for serious accidents occuring at nuclear plants during the period of time prior to an eventual solution to the safe and permanent disposal of spent nuclear fuel. In the past, the NRC has been fond of applying NEpA's " rule of reason" as to,the possible consecuences of actions that must be considered. The " rule of reason" was first enunciated in NRDC v. Morton, 148 U.S. App. D.C. 5, 458 F2d (1972) cuoted with
with approval Vermont Yankee Nuclear Corp. v. NRDC, 435 U.S.
- 519, 538-39 (1978) and Kleope v.
Sierra Club, 427 U.S. 390 410n21(1976). That rule requires a federal agency to direct its environmental I incuiries as to events that are " reasonably probable" and not " theoretically possible". Using that rule, it has been justified that it is only theoretically possible that no site fuel repositories would be available for storage of spent fuel and that it is reasonably probable that such facilities would be available. The same rule should also be applied to accident hazards. Since it has now admitted that Three Mile Island was a Class 9 Accident, we are no longer dealing with theoretical possibilities of serious accidents at nuclear plants - instead f we are dealing with reasonably _ probable accidents that will occur in the future. The NRC should: 1) reouire the applicant to thoroughly evaluate the alternative of an away-from-reactor storage facility on the grounds that such a facility would be inherently more consistent with the public health and safety in that if there were an accident at Salem Unit 1 or Unit 2 of serious proportions, large amounts of older scent fuel - still containing long-lived radionuclides - would not be involved in the accident if they were stored away-from-reactor, and 2) the NRC should initiate an Environmental Impact Statement prepared under NEPA dealing with the alternatives of away-from-reactor storage as opposed to at-reactor storage. l l i COMMISSION REVIEW SHOULD BE EXERCISED This case involves an important matter that could significantly affect the environment, the public health and safety and involves an important procedural issue and ouestion of public policy. Respectfully, submitted,- // t N Q. % CARL J. VALORE, SPECIAL NUCLEAR COUNSEL FOR THE TOWNSHIP OF LOWER ALLOWAY CREEK i August 3, 1981 I l 6 I 6 I b e I 1 e
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION THE NUCLEAR REGULATORY COMMISSION Docket No. 50-272 OLA (S ent Fuel Pool) P IN THE MATTER OF PUBLIC SERVICE ELECTRIC & GAS COMPANY, et al (Salen Nuclear Generating Station, Unit fl) CERTIFICATE OF SERVICE I hereby certify that copies of Intervenor, Township of Lower Alloway Creek's Petition in Support of Review of the' Decision and Action of the Atomic Safety & Licensing Appeal Board pursuant to 10 CFR 2.786, in the above captioned proceedings have been served on the following by deposit in the United States mail, first class, at the Northfield, N.J. post office, this 3rd day of August,.1981. Nunzio J. Palladino, Chairman Mr. Alfred C. Coleman, Jr. Nuclear Regulatory Commission Mrs. Eleanor G. Coleman Washington, D.C., 20555 35 "K" Drive Pennsville, N.J., 08070 Victor Gilinski, Member Nuclear Regulatory Commission Richard Fryling, Jr., Esq. Washington, D.C., 20555 Asistant General Solicitor i Public Service Electric Peter Bradford, Member & Gas Co. Nuclear Regulatory Commission 80 Park Place Washington, D.C., 20555 Newark, N.J., 07101 John F. Ahearne, Member Nuclear Regulatory Commission Washington, D.C., 20555 Ms. Janice E. Moore, Counsel for the NRC Staff Nuclear Regulatory Commission Washington, D.C., 20555 Docketing and Service Section u .45 V/4 Office of the Secretary CARL 39'VALORE U.S. Nuclear Regulatory Commission Washington, D.C., 20555 Mark J. Wetterhahn, Esq. Conner & Moore 1747 Pennsylvania Avenue, N.W. Suite 1050 Washington, D.C., 20006 l
..~ P j ~ 3 i i F r l r i r T' t t i [ r ? t ATTACHMENT 4 k 1 't e i i e i 4 I i - l l 9 9 6 1 l \\
T ld050 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket No. 50-272 PUBLIC SERVICE ELECTRIC & Proposed Issuance of Amendment GAS COMPANY ) to Facility Operating License i ) No. DPR-70 (Salem Nuclear Generating ) Station, Unit No.1) ) t 6 NRC STAFF RES00NSE TO PETITION OF THE TOWNSHIP 0F LOWER ALLOWAYS CREEK FOR COMMISSION REVIEW OF ALAB-650 ~ s., .,y . - ~. i i I Janice E. Moore. Counsel for NRC Staff l August 18, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFOR_E THE COMllISSION In the Matter of Docket No. 50-272 PUBLIC SERVICE ELECTRIC & Proposed Issuance of Amendment GAS COMPANY-to Facility Operating License No. DPR-70 (Salem Nuclear Generating Station, Unit No. 1) ) NRC STAFF RESPONSE TO PETITION OF THE TOWNSHIP OF LOWER ALLORAYS CREEK FOR COMiilSSION REVIEW 0F ALAB-650 I. INTRODUCTION The Staff of the Nuclear Regulatory Commission (Staff) hereby responds to the netition for Commission review of ALAB-650 filed by the Township of Lower Alloways Creek (TOLAC) on August 3,1981. The Staff opposes the granting of this petition for review on the ground that the petition fails to meet the requirements of 10 C.F.R. 5 2.786(b) of the Commission's reguiotions. II.
SUMMARY
OF DECISION On July 17, 1981, the Atomic. Safety and Licensing Appeal Board ' ( Appeal Board) issued its decision in this spent fuel pool capacity expansion proceeding. Public Service Electric _ and Gas Company (Salem-Nuclear Generating Station, Unit 1), ALAB-650, NRC ,(July 17, 1981). In tnis decision the Appeal Board affirmed the decision of the
= = Atomic Safety and Licensing Board (Licensing Board), which was issued on PublicServiceElectricandGasCompany(SalemNuclear October 27, 1980. Generating Station, Unit 1), LBP-80-27,12 NRC 436 (1980). The Appeal Board affinaed the Licensing Board's decision authorizing the issuance of the requested license amendment. With regard to the exceptions filed by TOLAC, the Appeal Board found that: the Licensing Board was justified in its determination that no 1) further analysis of the question of propagation of oxidation to older fuel in the spent fuel pool was warranted, ALAB-650, supra, slip cg. at 36; TOLAC has not met its burden for reopening the record in this 2) proceeding to require further evidence on the question of propagation, Jd_. ; and tnere was no basis for overturning the Licensing Board's finding 3) that approval of the Salem spent fuel pool expansion is not a major Jd.at46. action significantly affecting the environment. Petitioner now claims that the Appeal Board erred in determining that TOLAC had not met its burden for reopening the record to require further evidence on the question of propagation of oxidation to fuel four "Intervenor, Township of years old or older in the spent fuel pool. Lower Alloway Creek's Petition in Support of Review of the Decision and Action of the Atomic Safety & Licensing Appeai Board (10 C.F.R. 2.786)" at 3-5 (August 3, 1981) (hereinafter " Petition"). Petitioner also claims that the Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (FGEIS) fails to ade-quately consider away-from-reactor storage as an alternative to at-reactor storage. Petition at 7-10. Neither of these claims constitutes an appropriate issue for Connission review. l
4 III. ARGUMENT A. Petitioner Has Failed to Demonstrate Any Factual or Legal Error on the Part of the Appeal Board in its Decision dot to Reopen the Record in this Proceeding. On appcal Petitioner iOLAC argued that the Licensing Board erred in denying T0 LAC's motion for additional analysis on the question of whether oxidation co' i propagate from new fuel in the spent fuel pool to older spent fuel as the result of a gross loss of water accident. "Intervenor, Township of Lower Alloways Creek's Brief In Support of Exceptions (10 C.F.R. 2'.762)" at 1-2 (December 4,1980) (hereinafter "Brief on Exceptions"). In support of its argument, Petitioner relied on the case of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-284, 2 NRC 179 (1975), and on what it perceived to be the Licensing Board's disregard of the testimony of a Staff witness, Dr. Allan 5. Benjamin, as support for its argument. Jd_. In this petition for Commission review, T0 LAC merely reiterates these same arguments. TULAC ignores the Appeal Board's thorough discussion of the l inapplicability of ALAB-284 to this spent fuel pool expansion proceeding. I. ALAB-650, supra, slip opp. at 36 n. 30. Petitioner makes no attempt to show in what way the Appeal Board erred in its treatment of ALAB-284. TOLAC merely claims that the issue before the Appeal Board was a highly l complex and technically difficult one. Petition at 6-7. The Appeal Board makes it clear that the complexity of the technical issue presented j in ALAB-284 was only one factor which warranted further evidentiary hearings. ALAB-650, supra, slip o_p at 36 n. 30. They pointed to m.
additional special circumstances existing in that case t... +.aade the taking of further evidence in that case imperative.M etitioner has / failed to address any of the special circumstances mr ntioned by the f Appeal Board in ALAB-284. Petitioner has not showr, therefore, where the Appeal Board's error lies with regard to its t reatment of petitioner's use of ALAB-284. Petitioner's claim that the Appeal Board and Licensing Board ignored the testimony of Dr. Benjanin is also fatally flat ed. Both Boards agree that there was no real conflict in the testimony o' Staff witnesses Pasedag and Benjamin. LBP-80-27, supra, 12 NRC at 454; ALAB-650, supra, slip 02, at 30-31.E n saying that Dr. Benjamin's testimony has been I ignored by the Appeal Board, Petitioner disregards that Board's discussion of Dr. Benjamin's testimony which appear s in ALAB-650 at 30-33. The Appeal Board states "the testimony of a qualified witness calling for further analysis of any aspect of a per fing proposal merits serious consideration." Jd.at30. The Appeal Boa d went on to The Appeal Board pointed out that in ALAB-284 tie Appeal Board in Jf that proceeding found further evidentiary hearin ts warranted because the evidence was inconsistent and~ inadequate to support the Licens-ing Board's detemination, because of the absence of reference to l unfavorable evidence and the existence of new eviience not considered by the Board below. Id. As 10 C.F.R. 5 2.786(b)(4)(ii) points out, the Comn.ission will not y grant petitions for review on matters of fact unles it appears that the Appeal Board has resolved a factual issue necesstry to a decision in a clearly erroneous manner contrary to the resolu ion of that'same issue by the Licensing Board. No such conflict exists with regard to any of the factual issues presented in this case.
determine that, although infonnation concerning propagation might be of academic interest, it was not necessary for decisional purposes in l this proceeding due to the existence of other factors. H. at 31.3,/ Petitioner makes no attempt to point to evidence of record in this proceeding which challenges the factual determinations supporting these factors. In fact, Petitioner concedes that it may well be true that there will be no significant increases in radioactive releases frcrn the older fuel when compared with fresh spent fuel in the pool. Petition at 3-4.0 3/ These factors we,re: 1) the amount of radioactive releases likely to be associated with the oxidation; and 1 2) that the gross loss of wat'er itself is a very unlikely event. The Board pointed out with regard to the first of these factors that more research into the question of propagation would not provide any more information about the amount of radioactive releases associated ALAB-650, supra, at 31-33. With regard to the second with oxidation. l factor the Appeal Board noted that no witness could describe a credible Id. at 33. mechanism for the occurrence of such a gross loss of water. Petitioner merely argues '. hat the environmental consequences of a gross 4/ accident must be considered because TMI was a Class 9 loss of water Therefore. Petitioner's reasoning continues, all accidents accident. are now reasonably probable. Petition at 9. This argument is without merit. As the Appeal Board pointed out: "NEPA, however, does not require consideration of circumstances that are 'only remote and speculative possibilities.'" (Citations omitted.) ALAB-650, supra, slip op,. at 35 n. 29. Therefore, unless Petitioner makes a sufficient showing of a credible mechanism for the occurrence of a gross loss of water event, such an event need not be considered. Petitioner has been unable to do so throughout this entire proceeding.
4 a. 1. Finally TOLAC disputes the Appeal Board's view that it has a heavy burden to meet when attempting to have the record of a proceed-ing reopened. The Appeal Board stated that Petitioner's generalized assertions that more evidence is needed were not enough to meet f Petitioner's " heavy burden" of showing that a propagation analysis would have made a relevant contribution to the resolution of the Licensing Board's question. ALAB-650, supra, slip g. at 36. The Appeal Board was-applying the standard set forth in Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No.1), ALAB-462, 7 NRC.320 (1978). Aside from a general claim of error, Petitioner does not demonstrate why the Appeal Board erred in applying the Wolf Creek standard in this case.E Petitioner has not demonstrated that the Appeal Board's affimance of the Licensing Board's factual detemination that there is no credible mechanism for a gross loss of water from the spent fuel pool is clearly Petitioner has not satisfied 10 C.F.R. 5 2.786(b)(4)(ii) of erroneous. the. Commission's regulations and, therefore, the Appeal Board's factual deteminations are not appropriate subjects for Commission review. Since Petitioner merely complains that it is being treated unfairly 5/ by the Appeal Board in the Board's characterization of the testimony ~ of its witnesses, a characterization agreed to by both the Licensing ALAB-650, supra, slip 3. at 32 n. 25. Petitioner and Appeal Boards. seems to be arguing that somehow his burden for meeting the Wolf Creek standard should be lessened because it provided testimony in the proceeding. This argument is without merit. The strength of a party's case must be judged on its merits, and not on whether the party presented a direct case or chose to rely on cross-examination to make its points. The mere presentation of testimony is not sufficient to meet the burden discussed in Wolf Creektsupra.
o. the Petitioner has not demonstrated in what way the Appeal Board erred in its application of previous Appeal Board precedents to this proceeding, Petitioner has not satisfied 10 C.F.R. 6 2.786(b)(2)(iii) of the Comis Nor has Petitioner demonstrated the existence of an sion's regulations. important legal issue meriting Commission review as required by 10 C.F.R. I 2.786(b)(4)(i). This petition for review, therefore, presents no issues either of fact or law meriting Comission review. Petitioner Has Failed to Raise Any Environmental B. Issue Warranting Commission Review. In its exceptions to the Licensing Board's Initial Decision, Petitioner argued that the Licensing Board erred in finding that no environmental impact str'ement (EIS) was required covering this spent fuel pool expansion. Brief on exceptions at 4. As the Appeal Board noted, at oral argument Petitioner continued to assert that such an EIS was necessary, though Petitioner did not identify any reasons why this proposed spent fuel pool expansion was a major Federal action ALAB-650, significantly affecting the quality of the human environment. supra, slip o,c,. at 42. The f Petitioner's argum.ent seans now to have changed its character. argument in its petition asserts that the Commission's Final Generic Environmental Impact Statement (NUREG-0575)6_/ fails to adequately cons Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (FGEIS) was issued in August 6/ The FGEIS was declared to be final agency action on l of 1979. February 27, 1981. 46 Fed. M. 14506.
away-from-reactor storage as an alternative to at-reactor storage. Peti-tionat8.E Any attempt by Petitioner to challenge the adequacy of the FGEIS before the Commission in this proceeding is inappropriate. The FGEIS is not a part of the record in this proceeding. As the Appeal i Board noted, the Licensing Board did not rely on the FGEIS as support for its findings. ALAB-650, supra, slip. 00_. at 45. Petitioner neither l points to a place where this argument was raised before the Licensing Board or the Appeal Board, nor does it give any reason why such an argument could not have been raised earlier. This portion of TOLAC's petition fails, therefore, to satisfy the requirements of 10 C.F.R. I 2.785(b)(2)(ii) and must be denied. Even if Petitioner were deemed to be asserting that an EIS must be prepared for this particular proposed spent fuel pool capacity expansion, TOLAC still fails to show any way in which the EIA prepared by the Staff 1 was deficient. As the Appeal Board noted, TOLAC was given ample i 7/ It should be noted that the alternative of storing spent fuel at an independent spent fuel storage installation was evaluated by the Licensing Board and discussed by the Appeal Board in this proceeding. LBP-80-27, supra,12 NRC at 444-446; ALAB-650, supra, slip 02, at 37-38. At no time during any of these considerations did Petitioner raise the idea of an EIS specifically covering the alternative of away-from-reactor storage. In addition, Petitioner does not now challenge the Appeal Board's affirmance of the Licensing Board's finding with respect to this alternative. .m..
TOLAC makes ALAB-650, supra, slip g. at 43-44. opportunity to do so. no attempt to demonstrate in what way the Appeal Board erred in finding i that there was no basis on this record for overturning the Licensing Board's finding that this proposed expansion was not a major Federal action significantly affecting the quality of the human environment and Petitioner fails to identify any circumstances thus no EIS was required. that make this proposed spent fuel pool modification proceeding any different from the many proceedings in which EIAs were upheld by both Petitioner has made no factual or Licensing Boards and Appeal Boards. legal arguments as to why NEPA in this particular case would require the preparation of an environmental impact statement. I Moreover, it has not presented an important legal issue warranting Commission review. This petition, therefore, does not satisfy the requirements for Commis-sion review under 10 C.F.R. 65 2.786(b)(2)(iii) or 2.786(b)(4)(f should be denied. Petitioner accuses the Commission of having developed a " masterful Petition at 7. t strategy for avoiding the requirements of NEPA...." 8/ This view seems to flow from Petitioner's theory that, as a matter of ~ policy, the Commission has determined that no spent fuel pool expan The Appeal sion could have a significant impact on the environment. ALAB-650, supra, Board noted that it was unaware of any such policy.This theory al ,s_1 3 oo at 45 n. 39. Intent to Prepare Generic Environ-statement of policy issued in 1975. mental Impact Statement on Handling and Storage of Spent Light Water 16,1975). That Power Reactor Fuel, 40 Fed. g. 42801 (September policy showed the Commission s awareness of the possible need for EIS if an individual expansion were deter.ined to be a major Federal action significantly affecting the quality of the human environment. .1-.- l l
IV._ CONCLUSION For the reasons set forth above, TOLAC's petition should be denied on the ground that it does not satisfy the requirements of 10 C.F.R. El 2.786(b)(2) and 2.78S(b)(4) of the Commission's regulations. The petition does not raise any important matter that could significantly affect the environment or the public health and safety, does not raise an important procedural issue, and does not raise any important questions of public policy. Respectfully submitted, TNJQ{ Janice E. Moore Counsel for NRC Staff f r Dated at Bethesda, Maryland this 18th day of August,1981.
UN!TED STATES OF AMERICA NUCLEAR REGULATORY C0:U4ISS10N BEFORE THE COMMISSIOf( In the Matter of p / Docket No. 50-272 J PUBLIC SERVICE ELECTRIC & Proposed Issuance of Amendment-GAS COMPANY to facility Operating Licens'e No. DPR-70 (Salem Nuclear Generating ) Station, Unit No.1) CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO. PETITION OF THE TOWNSHI ~ 0F LOWER ALLOWAYS CREEK FOR COMMISSION REVIEW 0F ALAB-650 in the above-capt proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal r6 ails system, this 18th day of August, 1981. Gary L. Hilhonnin, Esq., Chairman
- Christine N. Kobl Chairman Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel 1815 Jefferson Street U.S. Nuclear Regulatory Comission Madison, Wisconsin 53711 Washington, D. C.
20555
- Mr. Frederick J. Shon s
- Dr. W. Reed Johnson Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C. 20555 Dr. James C. Lamb, III
- Thomas S. Moore Administrative Judge Atomic Safety and Licensing 313 Woodhaven Road Appeal Board Panel Chapel Hill, North Carolina 27514 U.S. Nuclear Regulatory Comission Washington, D. C.
20555 Richard Fryling, Jr., Esq. Assistant General Solicitor
- Hr. Samuel J. Chilk Public Service Electric and Secretary of the Commission Gac Company U.S. Nuclear Regulatory Comission SO Park Place Washington, D. C.
20555 "ewark, New Jersey 07101
Mark J. Wetterhahn, Esq. Richard M. Hluchan Esq. Conner.L Wetterhahn Rebecca Fields. Esq. 1747 Pennsylvania Avenue, N.W. Deputy Attorney General Suite 1050 State of New Jersey j Washington, D. C. 20005 36 West State Street Trenton, New Jersey 08625 Carl Valore, Jr., Esq. 535 Tilton Road
- Leonard Bickwit, Esq.
General Counsel riorthfield, H. J. 08225 U.S. Nuclear Regulatory Commission Lower Alloways Creek Township Washington, D. C. 20555 c/o Mary O. Henderson Municipal Building Hancock's Bridge, New Jersey 08038 June D. MacArtor Esq. Deputy Attorney General Mr. Alfred C. Coleman, Jr. Tatnall Building Mrs. Eleanor G. Coleman P. O. Box 1401 35 "K" Drive Dover, Delaware 19901 Pennsville, New Jersey 08070 i
- Atomic Safety and Licensing
!!r. Dale Bridenbaugh Board Panel M.H.B. Technical Associates U.S. Nuclear Regulatory Commission. 1723 Hamilton Avenue Washington, D. C. 20555 Suite K San Jose, California 95125 ' Atomic Safety and Licensing Appeal Board Panel
- Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 t W DA Y k $O50 Janice E. Moore Counsel for NRC Staff I e P h I
t c e a f .Y' l 4 ? f i b . 4 f t t P I h .t 1 1 ATTACHMENT 5 t e I F ? s b ? 'P b 9 ? I L r s e I-s., ~ r
~' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 f-{ - BEFORE THE COMMIS'SION In the Matter of ) ) PUBLIC SERVICE ELECTRIC AND ) Docket No. 50-272 GAS COMPANY, et al. ) (Proposed Issuance of ) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70) Y N 0/ t's 2 EE os s4igB\\ T C = d e',.., i hG'kt%ks # se th 9 ANSWER OF LICENSEE g, PUBLIC SERVICE ELECTRIC AND GAS COMPANY C c3 TO PETITION FOR REVIEW OF ALAB-650 FILED BY LOh?R ALLOWAYS CREEK TOWNSHIP Mark J. Wetterhahn, Esc. Conner & Wetterhahn 1747 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Counsel for' Licensee Public Service Electric and Gas Company, et al. Of Counsel: Richard Fryling, Jr. Public Service Electric and Gas Company 80 Park-Plaza, T5E Newark, New Jersey 07101 August 14, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) ) PUBLIC SERVICE ELECTRIC AND ) Docket No. 50-272 GAS COMPANY, et al. ) (Proposed Issuance of ) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70) ANSWER OF LICENSEE PUBLIC SERVICE ELECTRIC AND GAS COMPANY TO PETITION FOR REVIEW OF ALAS-650 FILED BY LOWER ALLCWAYS CREEK TOWNSHIP Introduction On August 3, 1981, Lower Alloways Creek Township (" Petitioner") filed a petition for review of ALAB-650. 1/ issued on July 17, 1981.~- That decision denied all ex-ceptions to an Atomic Safety and Licensing Board (" Licensing Board") Initial Decision which permitted the installation of new, higher capacity spent fuel racks at Salem Nuclear Generating Station, Unit 1 (" Salem Unit 1"). The instant i petition would have the Commission reconsider the finding that further analysis was not necessary to more precisely fix the probability of oxidation of spent fuel elements stored longer than four years in the event of an assumed, instantaneous total loss of water from the spent fuel pool and the finding that no environmental impact statement need be prepared in conjunction with the approval of the reracking. 4 ) i 1/ Citations will be as follows : Appeal Board Decision: ALAB-650 at
- Licensing Board Initial Decision
LBp-80-27, 12 NRC 435 (1980); Intervenor Township of Lower Alloway [ sic] Creek's Petition in Support of the Decision and Action of the Atomic Safety and-Licensing Appeal Board (10 C.F.R. 52.-786): Br. Pet. at
o. Both of these arguments were considered in great detail by the Licensing Board and, again, by, the Appeal Board; neither found any merit in either position advanced by Petitioner On November 18, 1977, Public Service Electric and Gas Company (" Licensee") applied to increase the storage capacity of the Salem Unit 1 spent fuel pool from 264 to 1170 spent fuel assemblies. The NRC Staff performed both a thorough safety evaluation and environmental analysis of the proposed action and issued a favorable Safety Evaluation and Environ-mental Impact Assessment. The Licensing Board, after hearing evidence on the contested issues and on its own questions, concluded that "the additional storage can be accomplished without endangering the health or safety of the public," and authorized the issuance of the requested license amendment 2/ After full consideration of the briefs on appeal, the record, the Licensing Board's decision and af ter hearing 3/ oral argument, the Appeal Board affirmed.~~ The petition raises no matter of fact, law or policy which, when viewed against the criteria of 10 C.F.R.
- 52. 7 8 6 (b) (4 ) for Nuclear Regulatory Commission review of Appeal Board decisions, warrants Commission consideration ~~4/
m. _2/ LBP-80-27, 12 NRC at 435, 436, 458. _3/ ALAS-650 at 2, 48. ~ ~~/ Pursuant to 10 C.F.R. 52. 786 (b) (4) (iii), the myriad de-4 instant request for Commission intervention.ficiencies in P slip on. at 11 wherein the Appeal Board stated:See ALAB-650, (Footnote _4/ centinued on next page)
Peti-ioner has utterly failed to demonstrate that this proceeding has unique issues associated with it which dis-tinguish it from the many similar approvals for spent fuel reracking issued over the last several years which the Commission has treated consistently and uniformly. The petition should be denied. Discussion I. As an outgrowth of certain questions related to the Three Mile Island accident, the Licensing Board asked the parties what the dif ference in consequences would be between a " gross loss of water," which was construed by the Licensing Board to be a total instantaneous loss of cooling water from the spent fuel pool with no specific causal mechanism associated with it, with expanded capacity and such an event at the The Licensing Board pool with its original configuration. satisfied itself that, even assuming such a " gross icss of dif ference between the water," there would not be a great consequences occasioned by the propcsed storage configuration 5/ ~~ and the consequences occasioned by the original one. Petitioner advances arguments identical to those re-jected by the Licensing and Appeal Boards and presents no ~ _4/ (continued) As for TOLAC, it has apparently taken the term "brief" literally. Its seven page offering is simply a rehearsal of its four page exceptions. adds lit:1s in the way of coherent argument Itto f acilitate our disposition of this matter. _5/ L3P-80-27, 12 NRC at 455.
e~ specific cogent argument as to why these panels were in-error. Petitioner contends that,the Licensing Board in-correctly rejected the testimony of a Staff witness that certain further analysis "could predict more precisely whether oxidation could propogate to older fuel and that 6/ calculations for such analysis could be performed."~~ The Appeal Board independently reviewed this aspect of the Licensing Board's decision in great detail and, as fully set forth in its decision, affirmed the Licensing Board's findings. Basing its decision in part on the inability of Petitioner's witness to describe a credible mechanism for propagation of oxidation from newly discharged to older fuel, the low probability of the event to begin with and, considering that even if exidation were to spread to older fuel, the resulting radioactive releases would be insignifi-7/ compared to those from recently discharged fuel,-- cant the Appeal Board affirmed the Licensing Board's action.
- Thus, rather than raising a legal matter as suggested by Petitioner, the matter of whether further technical analysis was necessary is a cuestion for the finder of fact.
Because both the Licens-ing and Appeal Board found that no further information need be generated, Commission review is barred by 10 C.T.R. 5 2. 7 86 (b) (4 ) (ii). ~ Furthermore, while perhaps further analysis corld have added further preciseness to calculations, Petitioner fails i _6/ Br. Pet. at 3. J/ ALu-650 at 29-30.
4 to enlighten the Commission as to what end such additional precision regarding the probability of the propagation of oxidation to the older fuel elements would have served. Both the Licensing Ecard and Appeal Board found that the existing record was sufficient te support the findings made by the Licensing Board in approving the spent fuel reracking. The reasons are clearly delineated in their decisions and need 8/ not be rehearsed. Importantly, the Appeal Board did assume that there would be some oxidation of older fuel, and found that radioactive releases frc= it would not substantially 9/ exceed those from fresher spent fuel. Petitioner points -~ to no testimony or evidence which rebuts this finding. Thus, while perhaps being of academic value, such studies could not af fect the ultimate finding made by the boards below. __E/ See ALA3-650 at 26-36. Licensee, in reliance upon an earlier Appeal Board decision in this proceeding, ALA3-588, 11 NRC 533 (1980), submitted testimony discussing the possibility and consequences of a " gross loss of water" incident which did not exceed the design basis for the facility, i.e., was not a " Class 9 accident." The Licensing Scard rejected such testimony. While the Licensee supported the f actual findings made by the Licensing Board before the Appeal Board, it alternatively argued that the rejection of its testimony and censidera-tion of the instantaneous " gross loss of water" as formu-lated. by the Licensing Board, which was in Licensee's view a Class 9 accident, violated the Commission's Statement of Interim Policy, Nuclear Power Plant Accident Considerations under the National Environmental Policy Act of 1969, 45 Fed. Reg. 40101 (June 13, 1980). The Appeal Board decision never reached Licensee's argument. However, Licensee submits that this remains as a separate and independent reason for rejecting Petitioner's recuest for further review of this matter. _9_/ ALA3-650 at 31-32.
s o, The single NRC decision cited by Petitioner in this section of its brief was clearly distinguished by the. Appeal 10/ Board. Petitioner shows no error in the Appeal Board's 11/ j legal analysis. While vaguely conglaining about the exclusion of certain testimony filed by it, Petitioner demonstrates no error in the treatment and certainly demon-strates no valid reason for requesting Commission intervention 12/ pursuant to 10 C.F.R. 52.786. Petitioner also fails to enlighten the Commission how he was prejudiced by the Licens-ing Board's action in striking the Licensee's testimony and 13/ what issue this raises worthy of Commission review. Petitioner complains of the " heavy burden" placed upon it by 14/ the Appeal Board but he fails to demonstrate that this I standard was legal error and not in accord with the cited 15/ Commission precedents. In summary, aside from Petitioner's own characterization of this matter as "a serious matter involving public health 16/ and safety," there is simply nothing adv=nced which would 10/ Id. at 38-29. 11/ See also ALAB-650 at 36, n.30. 12/ Br. Pet. at 4. 13/ Id. at 4-5. ~ 14/ Id. at 5. 15/ ALAS-650 at 36. 16/ Br. Pet. at 7. In coming to this conclusion, Petitioner would give substantial weight to the ' testimony of Dr. Webb, its witness,.but fails to point to any flaw in the Licensir. and Appeal Board analyses which excluded much of the testir and discounted the remainder. See ALAB-650 at 30, n.23; 32 n.25; 33.
s require the Commission to consider whether the Appeal Board and Licensing Board's findings and disposition of this matter should be disturbed. This is particularly true in that no mechanism has been postulated fer the " gross loss of water" under censideration and that this is an event of extremely low probability. II. Petitioner would have the Commission consider the necessity under the National Environmental.Po,li,cy Act for the preparation of a generic environmental impact statement, before the Commission could act, to permit reracking of anv spent fuel pool, including the one for Salem, Unit 1. The environmental review in this case in complete accord with 17/ Commission requirements, instructions and guicance. Peti-tiener's arguments are again merely repetitions of its 18/ arguments before the Licensing and Appeal Boards,~~ lack coherent analysis and reasoning, and generally do not rise to the dignity of matters which should be censidered by the 19/ ~~ Commission for review. Initially, NUREG-0575 " Final Generic Environmental Impact Statement on Handling and Storage of Spent Light ~~17/ E.g., Intent to Prepare Generic Environmental Impact State-ment on Handling and Storage of Spent Light Water Power Reactor Fuel, 40 Fed. Reg. 42801 (September 16, 1975). 1S/ The question of the need, as a legal matter, of an environ-mental impact statement in conjunction with any reracking was never raised below and Petitioner is barred from raising it before the Commission. ~~19/ This is particularly true of Petitioner's opening remark in this section that "[e]ither through intention or inadvertenc the NRC has developed a masterful strategy for avoiding the rectirerents cf NEPA Er. Pet. at 7.
4 8 8 a.' Water Power Reactor Fuel" is not a part of the record of 7 - this proceeding. The Appeal Board. correctly found that the 20/ Licensing Board had not relied upon it. Petitioner ap-parently does not argue to the contrary. Therefore, any purported error or misstatements are irrelevant to and should not' be permitted to be injected in this proceeding. Petitioner had adequate opportunity to comment upon the 21/ draft of NUREG-0575; the Commission was itself satisfied as to the contents of NURIG-0575.--22/ No reason exists to disturb the Commission's findings. The issuance'of the license amendment was supported by an Environmental Impact Assessment which was found to be in complete compliance with 23/ Commission requirements. Again, no error is alleged by' l Petitioner with regard to the EIA. Despite failing to show that the reracking was a major Federal action significantly affecting the environment, which 24/ Petitioner was given a full opportunity to litigate, the question of whether any alternative to the proposed action was environmentally preferable was considered by both the 20/ ALA3-650 at 45. t 21/ That draf t was referred to as NURIG-0404. 22/ 46 Fed. Reg. 14506 (February 27, 1981). The Petitioner's position is particularly confusing because the Cormdssion's notice clearly specified that "[t]his action does not affect any other requirements which 'may exist to address specific environmental and safety issues for individual licensing actions." _I_d. at 14507. F 23/ L3P-80-27, 12 NRC at 456-57, 24/ ALA3-650 at 39, n.33. f
25/ ~ Licensing and Appeal Boards. - Both boards rejected Peti-w tiener's position and no purported error has been advanced. Petitioner argues that the Commission must consider away-from-reactor storage as a " permanent disposal" technicue. However, in the very next paragraph, Petitioner recognites the pendency of the Waste Confidence rulemaking proceeding, 26/ as well it must, inasmuch as it is a participant therein. Having established a rulemaking proceeding to deal with this subject and having prohibited consideration in individual proceedings of these issues, it is entirely unnecessary and inappropriate to now censider the ratter en review in the context of a single station. Certainly, Petitioner has given no reason to de-art from the course established bv. the r Commis sion. Petitioner apparently argues that inasmuch as the accident at Three Mile Island was a " Class 9" accident, this must be f actored in an impact statement dealing with accident effects on the spent fuel pool. --27/ Initially, the Licensing Board fully censidered the effects on the Salem Unit i spent fuel pool of an accident similar to the ene which occured at 28/ Three Mile Island, Unit 2. In addition, the instant pre-ceeding was one in which the Cemmission stated that Class 9 25/ ALA3-650 at 47. 26/ Br. Pet. at 8: See LBP-80-27, 12 NRC at 449-51. --27/ Br. Pet. at 9. 28/ L3P-80-27, 12 NRC at 449-51.
/ e (. l o. .~ 29/ accidents need not be considered. Moreover, as previously W discussed, both the Licensing Board and Appeal Board considered 1 the " gross loss of water" and concluded that the difference in consequences between the original pool and the reracked pool were not significant. Finally, the Appeal Board dealt directly with the argument that the " gross loss of water accident" by itself requires preparation of an environmental impact statement, rejecting this on the basis that NEPA does i not require consideration of remote and speculative.possibili-30/ ties.~~ This matter does not warrant Commission consideration. Conclusion Petitioner has raised no issue which warrants Com- { mission consideration. The petition for review should be denied. Respectfully submitted, CONNER & WETTERliAHN Mark J. Wetterhahn Counsel for Licensee August 14, 1981 Of Counsel: Richard Fryling, Jr. Assistant General Solicitor Public Service Electric and Gas Company 80 Park Plaza, T5E Newark, New Jersey 07101 29/ See n , supra. 30/ ALAB-650 at 35, n.29. -}}