ML20058A572
| ML20058A572 | |
| Person / Time | |
|---|---|
| Site: | Oconee, McGuire, Mcguire  |
| Issue date: | 10/07/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AINV, TASK-SE SECY-81-579, NUDOCS 8201110142 | |
| Download: ML20058A572 (9) | |
Text
_
d
/j.a areg'o, SECY-81-579 October 7, 1981_
p
~.
ADJUDICN7bRY ISSUE (Notation Vote)
For:
The Commissioners James A. Fitzgerald, Assistant General Counsel From:
Subject:
ALAB-651 -- Transoortation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station Facilities:
Oconee Nuclear Station McGuire Nuclear Station Review Time Expires:
October 19, 1981 Discussion:
The purpose of this paper is to inform the Commission of the Appeal Board's decision in the Oconee/McGuire Spent Fuel Transshipment proceeding (ALAB-651).
No party has filed a petition for review of the decision. FWe B201110142 930412 recommend that PDR FDIA GILINSK92-436 PDR
===1.
Background===
On October 31, 1980, the Licensing Board denied Duke Power's application for amendment of Special Materials License - 1773 (LBP-80-28, 12 NRC 459). 1/
The amendment sought by Duke would fuel permit the company to receive and store at McGuire 300 spent assemblies generated at the Oconee station, j
1/
The special materials license authorized Duke to store new, unirradiated nuclear fuel at the McGuire facility.
The staff
~
is now treating the amendment as an amendment to McGuire's Operating License since the OL was granted before this i
Appeal Board decision.
There seems to be no reason to object to this procedure.
. q.dy
)
- ry
/ W l
((),;!-
, i n
Contact:
Patricia'R. Davis,, OGC.,~.43224 m;;...r ce :d
/p d
i 4..
f N0hkl U'
ex rm.n w
j t,
l 2
j Duke and staff appealed the Licensing Board decision; in tervenors Carolina Environmental Study Group and Natural Resources Defense Council urged the Appeal Board to affirm.
The Appeal Board reversed the Licensing Board and authorized issuance of the license amendment.
2.
Licensing Board Decision The Licensing Board dealed the application for two reasons:
(1) it found the environmental impact appraisal deficient under the National Environmental Policy Act of 1969 (NEPA), 2/ and (2) it found that there is not a reasonable assurance that the activities encompassed by the license amendment can be conducted without endangering the health and safety of the public.
a.
NEPA The Licensing Board found that the shipment of spent fuel from Oconee to FcGuire is the first step in a plan or program ( the Cascade Plan) to ship excess spent fuel from older reactors in Duke's system to newer reactors.
The Board found that the plan l
definitely included shipments from Oconee to McGuire and then shipments from Cconee and McGuire to the Catawba plant.
The staff did not include a consideration of the whole Cascade Plan in its environmental impact appraisal (EIA); it limited the scope of its environmental analysis to the Oconee/McGuire shipments of 300 spent fuel assemblies.
The Licensing Board concluded that under NEPA the proper scope of the analysis should include the whole Cascade Plan.
The Board found that limiting the scope of the NEPA analysis to the 300 shipments was an improper segmentation of the proposal for federal action. 3/
The Board also determined that the environmental impact appraisal was inadequate as it applied to the 300 shipments.
The Board found that the EIA does not identify and discuss the unusually intensive use of the highways which will result from making 300 shipments in one year as Duke plans.
If the shipments are made at the rate of 2 5 per mon th, "to the extent that the primary routes are used, this means that every day for a six-day work week for a year, a large truck loaded with a spent fuel cask carrying radioactive materials will pass each house, building or establishment located on that highway."
12 NRC at 489.
The Licensing Board felt that 2/
42 U.S.C. S 4332.
-3/
The Board relied primarily on the reasoning of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power. Station), ALAB-455, 7 NRC 41 (1978);
State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).
=
3 such an unusual concentration of shipments might intensify some risks and problems associated with transportation of spent fuel.
The Licensing Board concluded that the EIA was inadequate because it did not even identify, let alone analyze or evaluate, this intensive highway use.
t A further inadequacy the Licensing Board identified in the EIA was l
what it termed the lack of objectivity in the EIA appraisal and evaluation of the alternatives to shipment of the spent fuel.
After examining each of the alternatives to the shipment -- i.e.
reracking and construction of an Independent Spent Fuel Storage Installation (ISFSI) -- the Licensing Board found that either of those are preferable to Duke's Oconee/McGuire shipment program.
The Licensing Board also found the EIA inadequate because it did not include a consideration of psychological, social and political impacts.
The Licensing Board found that such consideration was made necessary by the Commission's statement that impact statements on handling and storage of spent fuel should consider " environmental, social and economic costs and benefits."
40 FR at 42802.(emphasis added).
b.
Atomic Energy Act The Licensing Board also found that if a spent fuel cask were.to be dropped into a' storage pool it could result in a release of radioactivity into the building and atmosphere.
Expected radiation doses would be below regulatory criteria, but such an accident could become a matter of great concern.
The Board found that the most effective remedy to avoid such an accident would be not to ship the spent fuel; but, if the fuel were to be shipped, a physical barrier should be used to prevent casks from dropping into the fuel pool.
The Licensing Board made findings in favor of the applicant on intervenors' other health and safety contentions.
The Board concluded that routine transfer of the casks would create no significant radiological hazard.
The Licensing Board's ultimate health and safety conclusion was that there is not reasonable assurance that the activities to be authorized by the proposed license amendment can be conducted without endangering the health and safety of the public and that issuance of the license amendment could be inimical to the health and safety of the public.
The basis for this conclusion is not clear from the Licensing Board decision.
e
4 3.
Diset
.7n of Appeal Board Decision The Appeal Board concluded that the proposed amendment and the shipment program would have no significant environmental impact, and authorized NRR to issue the license amendment subject to the imposition of one condition which will be discussed later.
(See p.
7) a.
NEPA (1)
Scope of EIA Sefore discussing the Appeal Board's decision as to whether the staff was required by NEPA to consider the whole Cascade Plan in the EIA, we outline the law relating to segmentation of a pro-posal for federal action.
1 The Appeal Board reversed the Licensing Board decision on this issue because it concluded that the EIA did not improperly limit consideration to the 300 spent fuel shipments and there was,
4 o,
5 therefore, no improper segmentation of a proposal for federal action.
The Appeal Board stated that even if a cascade plan does exist, NEPA does not require that the EIA consider the whole plan at this time.
NEPA applies only to proposals for federal action, and since there was no federal participation in the formulation of the plan, NEPA does not require that the entire plan receive environmental assessment when the first segment is presented for action.
The 300 spent fuel shipments proposal is, then, the only
" proposal for federal action" subject to NEPA.
As long as that portion of the plan presented has independent utility and approval of that portion will not foreclose the agency from withholding approval of subsequently presented portions, the Appeal Board concluded that the staff could confine its environmental review to the proposal for shipment of 300. spent fuel assemblies.
The Board went on to find that the proposed shipment had independent utility and would not influence a Commission decision in any future application to make further shinments pursrant to the t
plan.
o l
I
6
-q F.
(2)
Adequacy of the EIA The Appeal Board found unconvincing the Licensing Board's conclu-the EIA-is inadequate because it did not consider the sion that intensive use of the highways during the transshipment of the 300 fuel assemblies.
The Appeal Board determined that since spent the Licensing Board found no significant radiation exposure associated with " routine" transportation the Licensing Board's concern about increased risk must be based on the possibility of accident or sabotage and subsequent radiation. release.
The Appeal Board conducted its own independent review of the EIA and i
concluded that the EIA adequately considered these possibilities, The Board also concluded that the various packaging, routing and physical security regulations applicable to the shipments would ensure that the Fraent fuel could be shipped safely.
The Board-decided that based on past experience and risk studies the trans-pertation could be accomplished without " unreasonable risk to the health and safety of the public," and that it is extremely improbable that any of the unusual occurrences which concerned the Lic,ensing Board would result in significant radiological C
effect.j We do not believe F. f F
M j
7 The Appeal Board decided that it need not consider the Licensing Board's conclusion that the consideration in the EIA of alterna-tives to the transshipment was inadequate.
The Board cited Portland General Electric Co. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) for the proposition that when the proposed action has no significant impact on the environment, alternatives to the action which will have equal or greater impact need not be considered.
The Appeal Board concluded that there were no
" reasonably predictable environmental impacts" associated with the shipment of the 300 assemblies, and therefore, declined to pass judgment on the Licensing Board's discussion of the alternatives to the shipment. '
gj,;
The Appeal Board also concluded that the EIA was not inadequate because it failed to consider " social" impacts of the shipments, mainly in the form of community fears and psychological stress.
The Licensing Board seemed to find some duty imposed by the Commission's 1975 notice of intent to prepare a generic environ-mental impact statement to consider these impacts.
b.
Atomic Energy Act The Appeal Board concluded that the Licensing Board's concerns a bout the possibility of a cask drop accident in which the cask would fall into the fuel pool could be dealt with by imposing a license condition.
The condition will impose administrative cr atrols designed to remove the possibility of a dropped cask f alling into the pool.
The controls will require the crane operator to follow a designated path in moving the cask into and out of the cask pit area.
The / Appeal Board also reversed the Licensing Board's finding that the shipments could not be conducted with a reasonable assurance that the shipments would not endanger the health and safety of the public.
Since the Licensing Board did not specify the grounds for this finding, the Appeal Board assumed that it had in mind the accident or sabotage possibilities which the Appeal Board had already concluded did not merit concern'.
The Appeal Board stated that since it 3.s " extraordinarily improbable" that any of the unusual occurrences postulated by the Licensing Board would have a significant radiological effect, none of them can serve to support the Licensing Board's ultimate safety determinations.
9 8
4.
Conclusion F
p. t' tD -
Recommendation:
~
. c -- *.
James A. FiTz' gerald i
' Assistant General Counsel
?
At tachmen t:
ALAB-651 Comissioners' corrents should be provided directly to the Office of the Secretary by c.o.b. Monday, October 19, 1981.
Comission Staff Office coments, if any, should be submitted to the Comissioners NLT October 14, 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 coment, the Comissioners and the Secretariat should be apprised of when coments may be expected.
l DISTRIBUTION Comissioners Comission Staff Offices Secretariat t
i
\\
3 J.
-- + -....
-= -
z.
.s,
-f.
u.
2..
i e
.O.5.
P f
' i
+
. l
'h F
e P
e 6
i t
I t'
.. f 9
t I
N i
.a h
?
9 ATTACHMENT
. I t
t t
n b
s b
?
I f
' }
f
)
u
' I
[
i 9
4
, ?
U T
i 5
m m-r w
,-a
t o
UNITED S'TATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Alan S. Rosenthal, Chairman Dr. John H. Buck Richard S.
Salzman*
)
In the Matter of
)
)
DUKE POWER COMPANY
)
Docket No. 70-2623
)
(Amendment to Materials License SNM-
)
1773 -- Transportation of Spent
)
Fuel from Oconee Nuclear Station for)
Storage at McGuire Nuclear Station) )
)
Mr. J. Michael McGarry, III (with whom Messrs. Malcolm H.
- Philips, Jr., Washington, D.C.
and William L. _ Porter, Charlotte, North Carolina, were on the brief) for Duke Power Company, applicant.
Ms. Ellyn R. Weiss (with whom Messrs. William S.
Jordan, III, Lee L.
Bishop, and S. Jacob Scherr, Washington, D.C., were on the brief f for Natural Resources Defense Council, intervenor.
Mr. Jesse L.
Riley, Charlotte, North Carolina, for Carolina Environmental Study Group, intervenor.
Mr. Leonard M. Trosten, Ms.
M.
Reamy Ancarrow, and Mr. Michael F.
McBride, Washington, D.C.,
filed a brief on behalf of Electric Utility Companies Nuclear Transportation Group, amicus curiae.
4 Mr. Stephen M. Schinki (Messrs. Edward G. Ketchen, Richard E.
Hoefling, and Bruce A. Berson on_the brief) for the Nuclear Regulatory Commission staff.
- /
Mr. Salzman participated in the consideration and disposition of these appeals.
Prior to his resignation from the Appeal Panel as of July 19, 1981, he reviewed a preliminary draft of the Board's opinion and noted his agreement with-the result i
reached therein.
He was not available, however, to review the substantially revised final version 'of the opinion and, in the circumstances, should be deemed to have concurred in the re-sult.alone.
D Y 'h
<.~, -
1
I 2-DECISION August 10, 1981 (ALAB-651)
On October 31, 1980, the Licensing Board issued an initial decision 1/ on the application of the Duke Power Company for a license amendment which would permit it to receive and store at its McGuire Nuclear Station 300 spent fuel assemblies generated at its Oconee Nuclear Station.
/
If approved, the amendment would also allow the transportation of those assemb. lies to the McGuire facility so long as the packaging requirements of 10 CFR 71.12 are met.
Prior to the hearing, the NRC staff had undertaken an environmental analysis of the sought license amend-ment (including the impact of transporting the spent fuel over the highways between the two facilities) which led it to determine that the proposed activities would be without significant environ-mental effect.
The Licensing Board decided, however, that the analysis did not comply with the requirements of the Nat,ional Environmental Policy Act of 1969 (NEPA).
It further concluded that the grant of the amendment would be ini.mical to the public health and safety.
The Board therefore denied the application.
_1/
2/
More particularly, the application, dated
- March 79,1978, seeks an amendment to Special Nuclear Materials License SNM-1773 issued to the Duke Power Company by the Commission pursuant to 10 CFR Part 70.
That license now authorizes Duke to store new, unirradiated n.uclear fuel at its McGuire Nuclear Power Station, a f acility not yet in full operation.
Duke initially sought a license amendment to cover 400 Oconee spent fuel
,ee,_w,taff thereaft'er proposed a limit of 300 ass emblies..
The s 4.,
~'a erelicant acreed.
____.e...
i
~
Both the applicant and the staff have appealed from the decision below.
The intervenors, Natural Resources Defense Council (NRDC) and the Carolina Environmental Study Group (CESG), urge af firmance.
In addition, the Electric Utility Companies Nuclear Transportation Group (NTG) has filed a brief amicus curiae challenging the Licensing Board's adverse en-vironmental'and safety findings relating to the transportation 4
of the spent fuel.
For the reasons explained below, we reverse the decision of the Licensing Board and authorize the grant of the sought license amendment.
I.
NEPA CONSIDERATIONS Section 102 (2) (C) of NEPA requires all agencies of the Federal Government to prepare detailed environmental statements on, inter alia, major federal actions significant1y affecting the quality of the human environment.-3/
Pursuant to Commission 3/
4 2 U.S.C.
4332 (2) (C).
More specifically, the agency must include in every recommendation or report.on
^
proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --
tiCOTNOTE CONTINUED ON NEXT PAGE)
_4 2
regulation,-4 / the staff performed an environmental review of the proposed license amendment to determine whether such a statement was necessary in this instance.
Upon that review, it issued an environmental impact appraisal (EIA), in which it concluded that a full environmental impact statement (EIS) was "not warranted" because "there will be no environmental impact significantly affecting the quality of human environment at-tributable to the proposed action."
In accordance with that conclusion, the staff published a " Negative Declaration" under 10 CFR 51.7. E!
_3/
(FOOTNOTE CONTINUED FROM PPSVIOUS PAGE) ~
(i) the environmental impact of the proposed
- action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term
'ses of man's environment and the main-u 4
tenance and enhancement of long-term productivity, and (v) any irreversible and irretrievabio com-mitments of resources which would be in-volved in the proposed action should it be implemented.
4/
See 10 CFR 51.5 (c) (1).
5/
4 3 F ed. Reg. 61057-58 (Deceq.ber 29, 1978).
1
o..
On the basis of its evaluation of the evidence before it, however, the Licensing Board disagreed with that assess-ment.
It determined that the " issuance of the license amend -
ment and activity thereunder would significantly affect the quality of the human environment, and therefore [would] require
[ inter alia] the preparation of an environmental impact state-ment."
12 NRC at 517.
Additionally, the Board found that the
" Environmental Impact Appraisal and Negative Declaration [were]
improperly segmented and unduly limited in scope, inadequate in the consideration of reasonably predictable environmental to-4 pacts, and fail [ed] to properly evaluate and give weight to preferable alternatives, as required by NEPA and the Commission's Regulations."
Ibid.
We consider seriatim the underpinnings of the Board's dis-satisfaction with the staff's environmental analysis.
A.l. The staff had conducted its environmental analysis in terms of a proposal to ship not more than 300 spent fuel assemblies from Oconee to McGuire.
But the Licensing Board found that those shipments would be but one part of a so-called
" Cascade Plan" -- a "first step in a plan or program to ship excess spent fuel from older nuclear.reacto'rs in Duke's system to newer reactors."
Id. at 469.
In carrying out'this " Cascade Plan", according to the Board, the applicant '"would move fuel
from an operating reactor to another reactor storage pool and upon perhaps filling of that, on to the next pool."
Ibid.
l Likening the plan to "a game of musical chairs, which goes on and on until the government develops and provides nuclear waste storage facilities" (gi. at 476), the Board reasoned that compliance with NEPA required an assessment of the en-vironmental impact of the " Cascade plan" (ibid.), and not, i
as the staff had done, of a single series of spent fuel ship-ments from Oconee to McGuire for storage at the latter facility.
On the appeal, the applicant (supported by the staff) f disputes that the record below discloses the existence of any such long-range plan -- at least one to which the applicant is committed.-6/ It claims that a definite corporate plan exists only for the shipment _of spent fuel from Oconee to McGuire and that past company consideration of other possible shipments of spent fuel (including further transshipment of the Oconee spent fuel from McGuire to its Catawba nuclear plant) was in the nature of contingency planning.-7/ 'It thus argues that the t
scope of the environmental inquiry conducted by the staff was properly limited to the shipment of the 300 spent fuel assemblies
_6/
Applicant's Br., p. 53; App. Tr. 15.
_7/
Applicant's Br., p. 63.
m 4
! ?
from Oconee to. McGuire and storage at the latter facility.
I It insists, moreover, that the staff analysis satisf actorily demonstrates that that shipment and storage will not have a-significant impact on the environment.
For its part, intervenor NRDC presses us to accept the Licensing Board's finding on the existence of the plan.
In l
1 i
its view, "[t]he evidence in this case establishes beyond -
question that Duke has a plan to ship spent fuel around its t
system at least from Oconee to McGuire to Catawba." A!
In short, there is a sharp difference of opinion among the parties on an issue of basic fact.
This is not too sur-prising.
Questions addressed to previously-formulated inten-tions as to future courses of action are of ten the subject of murky evidence and thus difficult to answer with confidence.
l But in this instance, fortunately, it may not be necessary to come to grips with the matter of the extent of the applicant's commitment to the " Cascade Plan."
As the parties recognize,
[
that matter is significant here only if the Licensing Board is right in its additional holding that, if it existed, the " Cascade t
8/
Id. at pp. 19-22.
_9/
NRDC Br., p. 18.
6 i
~
N t
Plan" in its entirety had to be taken into account in the staff's environmental analysis.
Although on this issue, to which we now turn, the parties likewise are in disagreement, it is more readily susceptible of resolution.
2.a. As above noted, NEPA requires the preparation of an environmental impact statement only in connection with major federal actions which can be expected to have a significant im-pact on the quality of the human environment.
Thus, the question is whether, as the Licensing Board apparently believed although it did not explicitly so find, the assumed " Cascade Plan" amounts to a proposal for federal action.
F There can be no doubt that if a federal agency had partici-f pated substantially in its development -- financially or other-wise -- the plan necessarily would have to be deemed a federal proposal for NEPA purposes.
As such, an environmental analysis r
of the full plan would have had to be conducted at this time no matter how nuch or little of the plan was being left for later implementation.
This is the teaching of a line of judicial F
decisions exemplified by Scienti'sts': Institute ~ fo'r Pub 1'ic Infor-9 mation, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1085-93 (D.C. Cir. 1973).
S
=
t k
'N l
f.
Here, however, the assumed plan was not devised by this or any other federal agency.
Nor was there any federal par-ticipation in its formulation.
If, as alleged, the applicant j
does indeed have a multi-step program for moving spent fuel among its facilities, that program is wholly of its own making.
Not only was there no federal involvement but, according to the Licensing Board,1E/ the applicant took pains to keep its inten-tions to itself.
Although the Board below did not focus upon it, this con-sideration weighs heavily in deciding whether the staff could properly confine its environmental analysis to the 300 spent fuel shipments for which the applicant new seeks federal approval.
In the instance of a segmented non-federal plan, NEPA does not r
impose an inflexible require. ment that the entire plan receive an l
environmental assessment at the time that the first segment is put before a governmental agency for licensing action.
- Rather, j
~
it is settled that the agency may confine its scrutiny to the portion of the plan for which approv'al is sought so lone as l
(1) that portion has independent utility; and (2) as a result, l
the approval does not foreclose the agency from later withholding i
approval of subsequent portions of the overall plan.
.See e.g.,
10/
12 NRC at 471.
r
4 Atlanta Coalition v. Atlanta Regional _ Commission, 599 F.2d 1333 (5th Cir. 1979); Swain v. Brinegar, 542 F.2d 364 (7th Cir. 1976);
Sierra Club v. Frochlke, 534 F.2d 1289 (8th Cir. 1976); Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir_. 1974); Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973).
l As summarized by the Eighth Circuit in Froehlke, 534 F.2d at 1297:
The courts have been presented with the issue of " segmentation" of impact statements in various contexts and we do not propose to attempt the impossible, namely, the enunciation of a general rule that will cover all cases.
The crucial de-pendence is upon the facts before the court in the particular case sub judice.
h*here it is found that the project before the court is an essentially independent one, an EIS for that project alone has been found sufficient com-pliance with the act.
In such case there is no irretrievable commitment of resources beyond what is actually expended in an individual l
project.
b.
Albeit in a different context, the Licensing Board faced the question of the independent utility of the transfer of 300 spent fuel assemblies from Oconee to McGuire.bb!
It found no such utility to attach to the " Cascade Plan" as a 11/
In 1975, the Commission announced its intention to prepare a generic environmental impact statement on spent fuel disposal.
Pending the completion of that generic statement, licensing action designed to ameliorate the consequences of a possible shortage of spent fuel storage capacity was to be based upon a weighing and balancing of five factors -- including thht of ihdepen-dent utility.. 40 Fed. Rec. 42801, 42802 (September 16, 1975); Portland General ~ffectric Co. (Trojan Nuclear ~
Plant), ALA3-531, 9 NRC 263, 269-70 (1979).
(FOOTNOTE CONTINUED ON NEXT PAGE)
-. - ~.
whole (and, thus by implication, to attach to any portion of it).
12 NRC at 479-84.
While not all of the Board's discussion of I
the point is fully clear to us, it would appear that central to its finding is the fact that the movement of spent fuel I
between the applicant's various f acilities does not constitute a permanent solution to this applicant's waste storage problems.
In this connection, the Board observed that the removal of spent fuel assemblies from Oconee "is accomplished only at the expense of prematurely using up equivalent spent fuel storage spacb at the McGuire facility.
This multiple transshipment' process goes on and on, involving the premature using up of storage space 11/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The Final Generic Environmental Impact Statement on Handling and Storage of Spant Light Water Power Reactor Fuel (NUREG 0575) was issued by the staff in August 1979.
At the time of the Licensing Board's decision in the present case, however, the ccamission had not as yet acted on the statement.
Hence, that Board considered each factor.
12 NRC at 476-88.
On February 23, 1981, the Corni,ssion published a notice to the ef fect that the issuance of the GEIS " represents final Commission action with respect to that document" i
and that "the five-f actor test.
. is no longer appli-cable to proposed licensing actions relating to spent fuel handling and storage."
4 6 Fed. Reg.14 506, 14507.
In these circumstances, we need not decide whether the I
Board below correctly applied the f actors.
Although we still must inquire into the matter of the independent utility of the sought license amendment, as discussed in the text it is for a discrete purpose.
i 4
at Catawba and possibly the Perkins and Cherokee facilities as well."
Id. at 482-83.
Further, it noted that a " nuclear waste transporta : ion and transshipment program" does not either have (1) "the independent utility of increases in or enlargement of the ensite storage capacity of reactor spent fuel pools" or (2)
" operate to reduce or eliminate radioactive waste."
Id. at 483.
i But it scarcely follows from This all may well be true.
such considerations that the now-proposed Oconee to McGuire shipments would be devoid of inherent usefulness.
Nor is there i
any reason to conclude that, by authorizing those shipments, the Commission perforce would be foreclosing a rejection of any sub-sequent application to transport spent fuel assemblies from one 1
Duke f acility to another.
l The introduction to the relatively recent generic environ-mental impact statement on the handling and storage of spent fuel (see fn. 11, supra) reflects that the waste disposal problem con-fronting nuclear power plant operato,rs stems from the limited storage capacity of on-site reactor spent fuel pools (taken in conjunction wit".: the unavailability of offsite storage reposi-tories).12/
As matters now stand, when the exhaustion of that capacity approaches the plant operator likely will hav'e no more than four choices:
expansion of the spent fuel p'ool',s storage
_1_2/
See also EIA, p. 1.
'n
i capability by reracking or some other means; building of an independent spent fuel storage installation (ISFSI) either on-site or off-site; transportation of the spent fuel to another of its facilities; and shutdown of the plant for want of an ability to off-load the spent fuel then in the reactor Core.
In any particular case, not all of the first three alter-natives may be practicable.
Fo* example, it may not be po,ssible to enlarge further the capacity of the existing spent fuel pool (especially if it has previously been expanded).
Similarly, there may be timing or economic obstacles in the path of. con-J struction of an ISFSI.
And, obviously, an operator could not resort to the movement of the spent fuel between facilities unless it in fact had multiple nuclear plants and adequate un-used storage space at the receiving station.
Sut, where available, each of these alternatives has mani-r fest independent utility.
h'hether or not it provides a long-l i
term benefit, it most assuredly offers a significant near-term If nothing else, it enables the reactor to remain in oper-one.
i ation.
l This does not mean that an application for a license amend-transportation between fa'cilitie's, must be l
ment to allow, e.g.,
invariably grantod.
In common with any other proposal for handling
~
r t
p i
spent fuel beyond'the existing capacity of the on-site pool, it must, inter alia, undergo and survive an environmental analysis.
The significance of the independent utility of a particular proposal is simply that, for NEPA purposes, the environmental analysis may be confined to that proposal.
It is equally apparent that the outcome of the license amendment application at hand portends nothing insof ar as any future application of this or another plant operator is con-cerned.
Should Duke (pursuing the " Cascade Plan") seek at some future date permission to make further spent fuel ship-ments between its facilities, the request will have to receive a separate environmental assessment.
That assessment will not be influenced by, let alone turn upon, how the present appli-cation might have fared.
Rather, the initial inquiry will be into whether those further shipments will have a significant environmental effect. 'Should that question be answered af firma-i tively, a full environmental impact statement will-be required in order to comply with the Section 102 (2) (C) mandate.
In that statement, the staff will, of course, have to identify and weigh the benefits and costs of the proposal in the context of the-h 6
overall waste disposal situation then obtaining.
In doing so, it might well conclude, upon a consideration of all factors, that the proposed additional shipments are an unacceptable solution.ESI 13/
We are cognizant of the Licensing Board's suggestion that, by confining its environmental assessment to the 300 spent fuel assembly shipments, the staff may have overlooked " cumulative environmental impacts" which might be associated with the " Cascade Plan" as a whole.
12 NRC at 486.
Assuming the possible existence of such impacts, they would have to be considered when and if.
the applicant seeks permission to carry out another segment of the Plan.
The Licensing Board did.not, however, 111ume what it thought to be potential camu-lative effects of spent fuel movements over a period of time.
And, given our conclusion (see pp. 18-22, infra) that the 300 shipments hereinvolved (to take place over a relatively protracted -period) will be without environmental significance, no basis exists for concern on this score.
The situation here is thus quite different from that in NRDC v. Callaway, 524 F.2d 79 (2nd Cir.1975) which is claimed by NRDC to be "the case perhap.s post _.
directly on point" (Br. p. 20).
There, the Navy pro-posed to dredge a channel and to dump 2.8 million cu-bic yards of " highly polluted" material at a specific location in Long Island Sound.
The court held that, in its environmental impact statement, the Navy was obliged to evaluate the cumulative effects of that j
project and several other pending proposals for dumping similar material in the same general area.
As the court pointed out, "[t]he combined spoil from these proposed projects and from the Navy's project totals approximately 5 million cubic yards.
Were it all to be dumped within the next 5 years at the New London site the amount would far exceed the average of approximately 250,000 cubic yards dumped there annually prior to 1972."
524 F.2d at 37.
9 v..
1
, p l
B.
Having determined-that the staff was under no NEPA obligation to consider the entire " Cascade Plan" in its en-vironmental assessment of the specific proposal before it, we proceed to the next question:
Was that assessment compre-hensive enough in scope and, if so, did it justify the con-clusion of the staff that the shipment and handling of the 300 spent fuel assemblies would not have significant environ-mental effects.
The staff was required by Commission regulation to include in its environmental impact appraisal:
" (1) a description of the proposed action; (2) a summary description of the probable impacts of the proposed action on the environ-ment; and (3) the basis for the conclusion that no environmental impact statement need be prepared."
Examina-i tion of the appraisal reflects that it covers the environmental ef f ects of the various ~ activities associated with the proposal.
f In an analysis running some 100 pages, the staff, inter alia, looked at the McGuire site; the oper~ation of the McGuire spent i
fuel storage facility; the motor carrier transportation of 300 spent fuel assemblies from oconee to McGuire in special casks; the por.sible sabotage of spent fuel in transit; the likelihood f
i f
and possible consequences of a transpcrtation accident; and the a
handling of the transported fuel assemblies at* destination.
~
17 -
As the Licensing Board. saw it, the appraisal had several serious defects.
12 NRC at 517.
One of them -- the f ailure to consider the full " Cascade Plan" -- needs no further dis-cussion.
Nor, for reasons that will later appear, is there occasion to dwell at this juncture upon the Board's percep-tion that the appraisal did not properly evaluate alternatives to the proposal.
Rather, what must be now scrutinized is the Board's view that the appraisal was " inadequate in (its] con-sideration of reasonably predictable environmental impactss" Ibid.11/
1.
NEPA does not refer to environmental impact appraisals, let alone set forth detailed criteria by which the adequacy of a particular appraisal is to be judged.
Nor are such criteria found
[
14/
The Board also faulted the appraisal for failing to
" analyze and adequately consider" the " political and social impacts" of the proposed shipments.
12 NRC at 493.
Contrary to that Board, however, we do not find any such duty to have been imposed upon the staff by the Commission's 1975 notice of intent to prepare a generic environmental impact statement on spent fuel storage (see fn, 11, supra).
Our reading of that
- e is that the Commission intended such impacts 1to be " examined in a broader context" than individual licensing proceedings "from the standpoint of longer range policy."
42 Fed. Reg. at 42802.
At least this much is clear:
neither expressly nor by necessary implication did the Commission direct that, in analy-zing a particular spent fuel storage proposal, the staff take into account political or social 'implica-tions in addition to the effect implementation of the proposal would have upon the environment.
O
a in the Commission regulation concerned with the content of EIAs (10 CFR 51.7 (b)).
As the District of Columbia Circuit has observed, however, the function of the appraisal is to supply " convincing reasons" why an action "with ' arguably' potentially significant environmental impacts does not re-quire a detailed impact statement."
Maryland-National Capital Park and Planning Comm'n v. U.S. Postal Service, 487 F.2d 1029, 1039 (D.C. Cir. 1973, Leventhal, J. ).
Thus, to pass muster the appraisal should (1) reflect that "a hard look (was taken) at the problem, as opposed to bald conclusions, unaided by preliminary investigation"; (2) " identify the re-j levant areas of concern"; and (3) "make a convincing case that the impact is insignificant."
Id,. at 1040.
2.
Our independent review of the EIA at hand satisfies us that it fulfills these requirements insofar as (to use the phraseology of the' Board bel'ow)1b! the "reas rably predictable environmental impacts" of the transportatior. of the 3 00 spent i
fuel assemblies are concerned.
In determining otherwise, the Licensing Board pointed to the possible environmental consequences of a vehicular accident or attempted sabotage involving the truck c~arrying the' spent fuel.
12 NRC at 489-90; 497-99.
These contingencies were e
15/
See p.
5, supra.-
- 19 t
explored in the EIA, which concluded (at pp. 17-19, 33-37) that, should they materialize, there would not be a significant re-sultant environmental impact.
Accordingly, at bottom we are confronted with a difference of opinion between the staff and the Board as to the substantiality of the basis for that con-clusion.
The Board assumed that the 300 shipments would be made at the rate of.25 per month over a 12-month period.
Consequently, "every day for a six-day work week for a year, a large truck loaded with a spent fuel cask carrying radioactive materials will pass each house, building or establishment located on that high-way."15!
12 NRC at 489.
According to the Board, "such an un-usual concentration of shipments in a period of one year might or could intensify some of the risks and problems associated with the transportation of high-level radioactive waste or spent fuel."
I d_. at 490.
In this connection, the Board ' pointed to the historical record of two reported highway accidents in 3,600 spent fuel shipments.
Employing these data, it found that there was one chance in six of a highway accident in the course of the 300 shipments of current interest.
Id. at 490, f n, 117.
i 16/
These casks weigh about 25 tons and are 18 feet in length (App. Exh. 29 at p. 1, Tr. 4342) and must be' constructed
~~
to meet stringent Commission requirements.
See pp. 20-21, infra; EIA, pp. 16-17.
-r 9
i 20 -
It is a fair inference that (apart from the perceived sabotage threat) it was solely this accident possibility which undergirded the Board's transportation concern.
(The Board found that the radiation exposure associated with " routine" transportation of the spent fuel would be so small as to give rise to no unacceptable health effects.
12 NRC at 505-09.)
But acceptance for present purposes of the Board's calculation regarding the degree of probability of an accidentbl/ does not perforce justify that concern.
The Board implicitly made the further assumption that the occurrence of an accident was to be equated with the release of radioactive materials and, thus, with radiation exposure
[
beyond that which attends upon uneventful transportation.
We are told by the staff (Br. p.
30), however, that neither of i
the two prior accidents produced any release of radioactive materials.
More significantly, as emphasized in the EIA (at pp. 16-17), spent fuel assemblies must be transported in 4
specially designed and manuf actured casks which offer a high 17/
Needless to say, without knowing more about the circum-
~~
stances surrounding the two reported accidents (including such factors as location and prevailing road and climatic conditions), it is difficult to assess the reliab'ility of 1
the premise that, on the average., 1800 spent, fuel ship-ments will produce one highway accident.
W i
o degree of protection against the release of radioactivity in the event of an accident.18/
Specifically, the casks must comply with the stringent safety and other requirements which have already been prescribed by the Commission (10 CFR Parts 71 and 73).
Beyond that, spent fuel shipments must also com-ply with Department of Transportation requirements covering the packaging and movement of radioactive materials (49 CFR Parts 171-79).
Recently, that Department completed an exhaustive thirty-month study of the transportation of radioactive ma'terials. E!
On the basis of this study, including documented risk studies and past accident experience for radioactive material trans-port, that agency concluded that the public risks in trans-porting such materials by highway were too low to justify the unilateral imposition by local governments of.. total prohibitions or restrictions upon motor carrier utilization.
At the same time, it confirmed that the packaging requirements were adequate j
i O/
to-protect the public On the matter of the possible sabotage of a spent fuel t
shipment, for a variety of assigned reasons the EIA (at pp. 17-19)
[
found that it would be most difficult to breach the cask.
Mor eov ei',
f 18/
EIA, pp. 33-37.
19/
46 Fed. Reg. 5298-99 (January 19, 1981).
20/
Id. at 5299.
a year ago the Commission imposed by rule new routing and physical security requirements on spent fuel shipments.
In doing so, the " Commission reaffirm (ed) its judgment that spent fuel can be shipped safely without constituting unreasonable risk to the health and safety of the public."S1!
3.
In addition to focusing upon the environmental conse-quences of an untoward occurrence in the course of transporting i
the spent fuel assemblies, the Licensing Board addressed the possibility of an accidental drop of a cask during handling at the McGuire facility.
At that facility, fuel loading or unload-ing takes place in a specially constructed rectangular water-filled cask pit located adjacent to the spent fuel pool.ES/
The pit is separated from the pool by a 3-foot thick wall and is 9 feet wide measured from that wall (App. Exh. 27, Sketch i3).
In
[
unloading operations, the 18-foot long cask is moved into the pit area by means of an overhead crane.
While over the pit (the crane is prevented by physical stops from moving beyond the pit
~
to the area of the pool), the cask is lowered to the pit bottom where it is fully submerged.
The cask is opened and the fuel is then removed and transferred under water by a second crane
~
l into the pool through a slot in the wall between the pit and the
~
21/
45 Fed. Reg. 37403 (June 3, 1980).
22/
In the ensuing discussion, the terms " pit" and " pool" refer, respectively, to the cask pit and the spent fuel storage pool.
~~
i
o pool (Tr. 4319-20).
To assure that water will not be lost in the pool in the event of damage to the pit, the slot is blocked-by a gate which can be opened to allow the passage of spent fuel (Final Safety Analysis Report, 3.8-27a. Revision 9).
j During and af ter its removal from the cask, the spent fuel is always kept under water.
No one disputes that, if an accidentally dropped cask were to land in the pit, no health and safety or environmental conse-
)
quences would ensue.
Intervenor CESG postulated, however, a series of events which it claimed might lead to the cask striking i
and rupturing fuel elements stored in the pool.
More specifically, according to CESG, a cask might (1) drop near the far side of the pit (the side away from the pool); (2) strike the edge on that P
side; and (3) then topple over the 3-foot thick wall into the pool (CESG Exh. 13).23./
In response to this concern, the applicant presented evidence to the effect that, even were a dropped cask to strike the far side edge of the pit, it would not ultimately fall into the i
pool.
See 12 NRC at 510.
Nonetheless, to provide an additional e
measure of safety, the applicant proposed the establishment of 23/
Intervenor NRDC did not raise the cask drop issue below and has not taken a position on it before'us.
- Rather,
~~
it has been pressed throughout by CESG alone.
~
e
certain administrative controls designed to remove any possibility of a dropped cask falling into the pool.
These controls would require the crane operator to follow a designated path in moving the cask in and out of the pit area.
That path would pass over the far side of the pit near its end so that, should the cask drop at that point, it would strike the corner formed by that side and the end side of the pit and, if it then toppled, would fall inward into the pit (App. Exh. 29, Sketch f 4).
The staff agreed with this proposal and affirmatively stated that it would be adopted as a license condition (Staff Exh. 33).
Neither CESG nor the Licensing Board has assigned any good reason -- and none is apparent -- why such a license condition (which we hereby direct be imposed) will not provide adequate assurance that a cask will not be accidentally dropped into the pool.21/
That being so, we find it unnecessary to dwell at length 24/
CESG claimed below that it was 'not certain" that the control over the path of crane travel would " provide a
~-
sufficient safeguard."
It argu'ed that an " excess of travel along the final portion of the proposed path might reasonably be expected to deform the handrail" running along the f ar side of the pit " making a tipping accident possible."
CESG's Exh. 13, p. 5.
But our examination of the matter satisfies us that there is (following the sufficient clearance between the cask,ill not come in and the handrail that the cask w path) contact with the handrail.
In the circumstances, we do not understand how such a " tipping accident" is possible.
See Exh. 29, Sketch f4.
a upon the Board's finding that such an occurrence might be expected to have serious consequences in terms of radioactive releases.
12 NRC at 513.
We are constrained to note, how-ever, our difficulty with that finding -- which seems plainly unsupported by the record.
As the Board appears to have recognized, the drop of a cask into the pool would not have a significant effect upon either facility personnel or the general public unless it gave rise to a " criticality accident."
Ibid.
Our attention has been called to no evidence which' suggests that the rupture of spent fuel assemblies installed in the pool would produce criticality.
Even if (the staff'.s calculations to the contrary notwithstanding E[)
criticality ndght result from the impact of a dropped cask on fresh fuel, the record establishes that such fuel is not normally stored in the pool during spent fuel transfer operations (Tr. 4777-78).
Moreover, for criticality to occur, in al1 events the concentration of boron in the pool would have to fall "significantly" b' low specified limits.
12 e
NRC at 512-13.
At Oconee, where the concentration level must be checked at least twice weekly, the limits have always been met (Tr. 5081-82).
The McGuire pool is similar to that at Oconee (Tr. 5082) and presumably is subject to the same boron surveillance practices.
)
25/
See 12 NRC at 512.
o 1 In sum, the disclosures of record, many of which are cited in the Licensing Board's decision, compel the finding that there is a vanishingly small possibility of a cask drop accident with consequential env'ironmental impact.36/
4.
In reaching its conclusion that the preparation of a full environmental impact statement was unnecessary, the EIA thus did not overlook any " reasonably predictable environmental impacts" associated with the proposed transfer of 300 spent fuel assemblies between the two facilities.
The short of the matter is that (1) if carried'out without incident, that transfer will have (as the Licensing Board itself recognized) negligible en-vironmental effects;21/ and (2) the possibility of an untoward event at any, point in the course of the transfer with accompanying serious environmental consequences is extremely remote.
26/
For the purposes of this discussion, we have accepted the Licensing Board's apparent implicit assumption (without i
explanation of its basis) that there is a reasonable pos-sibility that a cask will be accidentally dropped.; In actuality, however, that assumption is questionable.
The crane's load capacity is 125 tons (almost five times the weight of a filled cask) and its cable and mechanical com-ponents (e.g., gears) are designed to withstand five times that load capacity (Tr. 4342).
In that circumstance, the likelihood of a cask breaking free from the crane would appear slight indeed.
27/
Before us, NRDC counsel had this to say on the matter:
)
i "I don't believe, and I don't contend that this record establishes that there is any substantial. environmental impact associated with 300 shipments of spent fuel assem-blies."
App. Tr. 84.
4 j
r-0..
It is beyond dispute that an environmental impact statement need not consider " remote and highly speculative consequences."'
See e.g., Trout Unlimited v. Morton, supra, 509 F.2d at 1283, quoted in Public Service Electric 'and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 38 (1979).
It perforce follows that asserted consequences of that stripe do not trigger the obligation to prepare an EIS.
It also follows from the absence of any " reasonably pre-dictable environmental impacts" that we need not pass judgment here upon the Licensing Board's discussion of alternatives to the spent fuel transfer proposal.
On this score, our decision in the Trojan spent fuel pool expansion proceeding 28/ is directly in
~
point.
We there expressly held that neither Section 102(2) (C) nor Section 102 (2) (E) S! of NEPA obligates the federal agency "to search out possible alternatives to a course which itself will not either harm the environment or bring into serious question i
28/
Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-531, 9 NRC 263 (1979).
29/
42 U.S.C.
4332 (2) (E).
That Section directs federal agencies i
to " study, develop, and describe appropriate alternatives to
~~
recommended courses of action in any proposal which involves -
unresolved conflicts concerning alternative uses of available j
resources."
~
I g
e e
J
r..
the manner in which this country's resources are being expended."
9 NRC at 266.
Accord, Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 457-58 (1980) r Public' service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC fn. 33 (July 17, 1981).
To our mind, it simply cannot be seriously contended that the transportation by motor carrier of 300 spent fuel assemblies over the 170-mile distance separ-ating Oconee and McGuire presents a substantial national re-sources commitment question.
5 II.
ATOMIC ENERGY ACT CONSIDERATIONS In addition to rejecting the requested license amendment on NEPA grounds, tne Licensing Board made these ultimate safety l
findings:
1.
There is not a reasonable assurance that the activities authorized or encompassed by the l
license amendment can,be conducted without endangering the health and safety of the public.
2.
The issuance of the license mmendment could be inimical to the health and safety of the public.
12 NRC at 516.
Regretably, however, the Board did not' indicate precisely on what foundation those findings reste'd.
~
g.
We have previously stressed the importance that initial decisions explicate the basis for each crucial determination contained therein.
See~ e.g., ' Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC l
33, 41 (1977).
Where this has not been done, it is open to us to remand the cause to the Licensing Board to enable it to provide the missing explanation.
But here it is not necessary to pursue that course.
To repeat what has previously been said, the Licensing Board did not find (and no one claims before us) that the un-eventful transfer of the spent fuel assemblies from oconee to McGuire would pose a radiological health and safety threat to the public.
Thus, the Board must have had in mind the several accident and sabotage possibilities which we have already ad-dressed.
But, as has been seen, it is extraordinarily impro-bable that any of the postulated unusual occurrences would have a significant radiological effect.
This being so, none,of them
~
can serve to support a determination that the safety standards
)
of the Atomic Energy Act and the Comnission's implementing regu-1ations will not be met.
See Sections 104d and 182a of the 3
e e
J 6
w w
.w e
w
~ k.
t-
_ 30 Atomic Energy Act, 42 U.S.C. 2134 (d) and 2232 (a); 10 CFR
- 70. 31 (d).ES!
F For the reasons above stated, the Licensing Board's October 31, 1980 initial decision is ' reversed.
The Director of Nuclear Reactor Regulation is authorized to issue the li-cense amendment in question, subject to the imposition of the condition referred to at p.
24, ' supra.
It is so ORDERED.
FOR THE APPEAL BOARD c.%4a C. Je Bishop T~
Secret ry to the Appeal Board 30/
NRC licensees are required to "pake every reasonable
~-
effort to maintain radiation exposures, and releases of radioactive materials in effluents to unrestricted areas, as low as is reasonably achievable."
10 CFR 20.l(c).
The Licensing Board read this requirement to mandate a campari-son of the radiation exposure associated with the spent fuel transfer proposal at bar with that which would attend upon alternative means of handling and storing su.ch fuel.
12 NRC at 501.
Although the comparison then made by the Boa'rd did not enure to the disadvantage of its proposal (id. h t 503 ),',
the appli-cant nevertheless asks us (Br. p. 121T to hold that the Board below misconstrued Section 20.l(c) and that, in the
{
present circumstances, it was not necessary to examine the radiological effects of alternatives.
We decline, however, to render what would be~ essentially an advisory opinion on that question.
There will be time enough to reach it when
)
and if it arises in a non-academic context.
.. -...