ML20062D278
| ML20062D278 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 08/04/1982 |
| From: | Read D, Runkle J AFFILIATION NOT ASSIGNED, CONSERVATION COUNCIL OF NORTH CAROLINA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8208050535 | |
| Download: ML20062D278 (15) | |
Text
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DOCKETED USNRC
'52 55d-4 PI:03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r.yy ;r ny sgyg;, e
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BEFORE THE A'IOMIC SAFETY AND LICENSING BOARD Glenn O. Bright Dr. James H. Carpenter Jame s L. Kelley, Chairmah """"""" ~"
l In the Matter of
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Dockets 50 400 OL CAROLINA POWER AND LIGHT CO. et al.
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50 401 OL (Shearon Harris Nuclear Power Plant,
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Units 1 ani 2)
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August 4, 1982 BRIEF CONCERNING SPENT FUEL TRANSSHIPMENT In$oduction: The Contentions t.
In Contention Number 9 (at p. 6) of its " Supplement to Petition-for Leave to Intervene," May 14, 1982, Chapel Hill Anti-Nuclear Group Effort (CHANGE)/ Environmental Law Pro-ject (ELP) contenis " Applicants' Environmental Report is inadequat'e," because "the values set forth in Summary Table S 4 do not apply" to shipments of spent fuel tio,SHNPP, which would occur as a result of Applicants' proposal to store such l
spent fuel from Brunswick and Robinson at SHNPP. Similarly, the Conservation Council of North Carolina (CCNC) in Content-ion Number 4 (at p. 5) of its " Supplement to Petition to In-l tervene," May 14, 1982, contenis " Applicants' request for authorization to store... material irradiated [at Brunswick and Robinson] should be denied," because of Applicants' mis-placed reliance on Table S 4, and consequent lack of analysis as required by 10 C.F.B. 51.20(g)(1)(ii). At the special pre-hearing conference on July 13 and 14,,1982, both CHANGE /ELP 8208050535 820804 PDR ADOCK 05000400 PDR G
Page 2 and CCNC agreed to submit briefs explaining these contentions and the legal arguments behind them in greater detail, and were ordered to do so no later than August 10, 1982. This brief is submitted pursuant to that order.
The Environmental Report In their ER, Applicants discuss " Radioactive Material Movement" at Section 3.8 and " Transportation Accidents In-l volving Radioactivity" at Section 7.2. Section 3.8 notes that 1
new fuel transport to SHNPP and waste and spent fuel transport from SHNPP will be within the scope of 10 C.F.R. 51.20(g).
It then admits that additional environmental impact will occur when spent fuel is transported from Applicants' other nuclear plants to SHNPP, but asserts that "the total envir-onmental impact of radioactive material movement to,and from the SHNPP will not exceed that set forth in Summary Tables 4."Abasisforthisstatement',oranalysisleadIng up to it, is not provided (Section 3.8, like Section 7.2, is only a short paragraph). Section 7.2 does not even mention l
shipments of spent fuel to SHNPP, but simply states that transportation is within the scope of 51.20(g) and therefore no further analysis is required beyond that represented by Summary Table S 4. Section 8, which discusses costs and bene-fits of SHNPP operation, does not include any mention of the environmental costs of fuel or waste transportation.
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Page 3 Discussion
- 1. The anplication necessarily includes transportation of snent fuel from Robinson and Brunswick to SHNPP. the environ-mental costs of which are properly to be considered by this Board as reauired by NEPA.
Apparently, Applicants believe that environmental effects of the transportation of spent fuel II.2m Robinson and Bruns-wick (to an unspecified site) have already been taken into account in the licensing process for those plants, and that therefore the only matter for consideration in this proceeding is the storage of this additional spent fuel at SENPP and sub-i sequent transportation away from SENPP. However, without the proposed storage of Brunswick and Robinson fuel at SHNPP, the extra transportation of fuel entailed would not take place, with the attendant extra handling, unloading, routing, and exposure of the public to risks of accident and/or sabotage.
Without the storage at SHNPP, the public would only be ex-posed to one shipment of the Brunswick fuel and only one more of the Robinson fuel, as anticipated by Table S 4; with the SHNPP storage, an extra shipment of spent fuel will necess-arily take place with the attendant risks.
As past licensing hearings demonstrate, particularly the Duke Power case, Duke Power Company (Oconee-McGuire, Am-endment to Materials License SNM-1773), LBP-80 28, 12 N.R.C.
l 459 (1980), the NRC has considered such transshipment to be of sufficient environmental concern to require full evident-l iary hearings with the attendant consideration of effects of l
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Page 4 and alternatives to transabipment. In fact, in Duke Power the Licensing Board found that the application for a licens-ing amendment should be denied (insufficient consideration of effects and alternatives), before being reversed by the Appeal Board, Duke Power Company (Oconee-McGuire, Amendment to Materials License SNM-1773), ALAB 651, 14 N.R.C. 307 (1981). To brush this transshipment aside as environmentally insignificant on the Applicants' mere assertion overlooks this record, and circumvents the requirements of NEPA, 42 U.S.C.A. 4332, which are embodied in the Commission's reg-
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ulations, 10 C.F.R. 51.20(a). NEPA requires that the agency l
" consider every significant aspect of the environmental in-pact of a proposed action," Vermont Yankee Nuclear Power Corp. -
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- v. Natural Resources Defense Council, 435 U.S. 519, 553, 98 S.Ct. 1197, 1216, 55 L.Ed.2d 460 (1978) (emphasis.,added).
l This consideration must be more than a pro forma ritual, l
Calvert Cliffs' Coordinating Committee v. A.E.C., 449 F.2d 1027 (D.C. Cir.1971); " pro forma compliance with the substan-tive guidelines of NEPA will not be sufficient--responsible i
federal officials must give full consideration to the envir-onmental consequences of major federal actions," Scherr v.
Volpe, 466 P.2d 1027 (8th Cir. 1972) (emphasis added). There is no question that issuance of an operating license for SHNPP is a major federal action, and issuance of the license as applied for would have as one significant aspect the storage and transportation to SHNPP of Brunswick and Robin-son fuel, requiring full consideration. That consideration will occur in the environmental impac.t statement process,
Page 5 which is however triggered by and based on the Applicants' ER, 10 C.F.R. 51.22. Therefore, adequate consideration in the ER is essential; that is lacking here.
Additionally, acceptance of the Applicants' position would preclude the consideration of alternatives to trans-shipment as required by NEPA, 42 U.S.C.A. 4332(2)(C)(iii).
Although under Vermont Yankee consideration of highly spec-ulative alternatives is not required, there are clearly other alternatives to transshipment, as was discussed in the Duke Power case, such as reracking, construction of an 4" dependent spent fuel storage installation (ISFSI) on site, or reactor shutdown. To allow Applicants' assertion as to impact to stand would be to give them a virtual blank check to transport spent fuel to SHNPP without NEPA consideration, although at this time number and mode of shipments, routing, and other factors bearing on environmental impact have not been specified.
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- 2. Table S 4 does not apply to the transportation of spent i
fuel from Brunswick and Robinson to SHNPP.
By its " Notice of Proposed Rulemaking," Federal Register, Vol. 38, No. 23, February 5, 1973, the AEC proposed a rule governing consideration of environmental effects of fuel i
transportation. This rule was adopted as part of Part 51 of C.F.R. Title 10 in Federal Register, Vol. 40, No. 3, January l
6, 1975, including Summary Table S 4. Aside from a minor cor-rection and the updating of the availability of the support l
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Page 6 documents,10 C.F.R. 51.20 paragraph (g), including Table S 4, has remained unchanged since then.
Although the title of the table, " Environmental Impact of Transportation of Fuel and Waste To and From One Light-Water Cooled Nuclear Power Reactor," might suggest that the table's scope is extensive enough to include transport of spent fuel 12 the reactor as well as away from the reactor, a closer reading of the " legislative history" and of 10 C.F.R. 51.20(g) indicates that this is in fact not the purport of the rule.
Section 10 C.F.R. 51.20(g)(1)(1) specifically requires use of table S 4, gee Union Electric Company (Callaway Plant, Units 1 and 2), LBP-75 47, 2 N.R.C. 319, 355 (1975), for
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" transportation of cold fuel to the reactor and irradiated fuel from the reactor to a fuel reprocessing plant..." which is "within the scope of this paragraph." The scope of the rule contemplates use of Table S 4 only for normal once-through operation of a reactor, not for use of the reactor as an AFR storage site, comprehending only transportation of unirradiat-ted fuel elements to the plant. This is clear from a look at the background of the rule. In Vermont Yankee Nu'elear Power Corporation, @ermont Yankee Nuclear Power Station), Docket 50 271, June 6, 1972, the ASLAB held that environmental impact statements must consider the environmental effects of irradi-ated fuel and waste transport. In considering a general rule to implement this requirement, the AEC wrote
...it should be noted that in conjunction with the revision of Appendix D of 10 C.F.R. Part on September 9, 1971 [now 10 C.F.R. Part 513,50 there was transmitted by the Director of Regula-
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Page 7 tion to applicants for licenses to construct or operate Nuclear Power Plants, and made available to the public, a document dated September 1, 1971. This document,'among other things, indicated that applicants environ-mental reports should describe the environ-mental effects of the transportation of fuel elements from the fuel fabrication plant to the reactor as well as the transpor_t:ation of spent fuel elements from the reactor to the i
fuel reprocessing plant and the transportation of packaged radioactive material from the reactor to low level waste burial grounds.
As a result, each applicant in an En-vironmental Report and the Commission in each environmental statement issued for a Nuclear Power Plant, have presented a cost-benefit analysis of the environmental impact of the transportation of unirradiated fuel to the plant and unirradiated fuel and solid. radio.
active wastes from the slant. " Notice of Proposed Rulemaking," 33 F.R. 3334, February 5, 1973 (er -is added).
This language makes clear that consideration of transpor-tation to the reactor was added only in response to concern over shipment of cold fuel to the reactor, not shipment of spent fuel to the reactor.
In response to concerns of the Staff subparagraph (g)(2),
explicitly clarifying the scope of situations in which Table S 4 is to be used, was added in the final rule, 40 F.R. 1007.
Only transport of irradiated fuel from the reactor is mention-l ed therein, 10 C.F.B. 51.20(g)(2)(v); transshipment of irrad-iated fuel is not covered. Therefore, a reactor which would both receive and send out irradiated fuel is not within the scope of Table S 4 and paragraph (g). The exclusive nature of the use of Table S 4 is indicated by "only if," 10 C.F.R. 51.20(g)(2). In adopting the rule, the Commission expressly
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recognized its limited scope:
Pcga 8 The dccument [ WASH-12383 was not intended to serve...as a detailed analysis of alternatives and costs and benefits as they relate to the' transportation aspects of the uranium fuel cycle.;Nor was the purpose of this [rulemakin63 proceeding to undertake a full environmental review of transportation of fuel and waste. The purpose of this proc-eeding was to determine certain elements to be factored into environmental statements in particular licensing proceedings. 40 F.H.
1005, January 6,1975 (emphasis added).
Clearly, the Commission recognized that the rule's scope i
was to extend to normal operating practice only, and not to serve as a catch-all to end NEPA consideration of all spent fuel transportation. It further recognized that independent analysis would be necessary for transportation outside the scope of the rule:
l Any assessment will be subject to separate consideration in individual licensing cases if it covers transportation of a type which is outside the scope of the rule. 40 F.H.
1007, January 6, 1975.
This concern is embodied in 10 C.F.B. 51.20(g)(1)(iif,1which requires that the EH shall contain
...if such transportation does not fall within the scope of this paragraph, a full description and detailed analysis of the environmental effects of such transporta-l tion and, as the contribution of such eff-l ects to the environmental costs of licens-ing the nuclear power reactor, the values determined by such analyses for the environ-mental impact under normal conditions of trans-port and the environmental risk from acci-dents in transport (emphesis added).
Since the Applicants propose to ship irradiated fuel to and from SHNPP, as well as cold fuel to and wastes from SHNPP, their transportation plan falls outside the carefully defined scope of 10 C.F.B. 51.20(g), and a afull description and complete analysis of the environmental effects" is auto-
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i Page 9 matica11y required. Sections 3.8 and 7.2 of the ER are therefore clearly inadequate.
- 3. The Aeolicants' analysis is inadeauste because it does not consider the effects of sabotare and/or diversion of spent fuel shipments.
In adopting its final rule on environmental effects of fuel and waste transportation, the Commission stated that
[S]abotage and diversion of shipments of fuel and waste to and from reactors are not cover-ed in the Environmental Survey [ WASH-12383 and are not accounted for in the values contained in the Summary Table. The environmental effects of sabotage and diversion, therefore, are be-yond the scope of the rule and are subject to appropriate separate consideration in individ-ual reactor licensing proceedings. 40 F.R. 1007, January 6, 1975 The statement of considerations accompanying the formal i
adoption of 10 C.F.R. 51.20 is regarded as equally e'frect-ive as the scope of the regulations, Kansas Gas and Elec-tric C'ompany et al. (Wolf Creek Generating Station, Unit 1),
LBP-75-33,1 N.R.C. 618, 620 n. 3 (1975). The statement was made despite the prior adoption of 10 C.F.R. 50.13 (32 F.R.
l 13445, September 26, 1967), gge Siegel v. A.E.C., 400 F.2d 778 (D.C. Cir. 1968) (validating Commission rulemaking), and the repeated application of 50.13 in licensing hearings, e g, 1
Florida Power and Light Comoany (Turkey Point, Units 3 and 4),
Dockets 50-250, -251, 4 A.E.C. 787 (1972), and Potomac Electric Power Company (Douglas Point Nuclear Generating Station), ALAB 218, 8 A.E.C. 79, 81 n. 7 (1974). The juris-
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Page 10 diction of Licensing Boards over the issue of sabotage and diversion of spent fuel transport has been explicitly re-oognized:
[T3he environmental effects of criminal actb and sabotage during transportation of radio-active wastes are beyond the scope of Section 51.20(g) and are subject to consideration in individual reactor licensing proceedings, Union Electric Comoany (Callaway Plant,(Units 1975).
1 and 2), LBP-75 47, 2 N.R.C. 319, 354 Therefore the environmental effects of sabotage and diversion of spent fuel in transit from Brunswick and Robinson to SHNPP, which necessarily would follow from the issuance of the license as requested, are properly a subject of in-quiry in this proceeding. However, Applicants have not presented any such analysis, nor have they indicated number of shipments, mode of shipment, possible routings, or any other information which would make such analysis possible.
This is not a subject of inquiry that can be brushed aside by an easy reference to Table S 4. In adopting its interim transportation regulations,10 C.F.R. Part 73, the Commission recognized that this was area fraught with un-certainty:
The Commission found that the likelihbod of successful sabotage is uncertain as the exist-ence of a credible adversary organization cannot be ruled out and the response of spent fuel and spent fuel casks to credible explo-sive sabotage is subject to large uncertainty.
With respect to consequences, it appears that the release of a small fraction of the inven-tory of a spent fuel casks [ sic] as respirable particles could produce serious consequences in a heavily populated area. " Physical Protec-tion of Irradiated Reactor Fuel in Transit,"
45 Federal Register, No.108, June 3,1980, pp.
37402-3
i Page 11 Nor can Applicants rely on cask design alone:
In view of the uncertainties in predicting the response of spent fuel and spent fuel casks to explosives, the Commission believes that it is no longer purdent sic] to depend on cask design alone to protec[t against sabo-I tage in heavily populated areas. Id., 45 F.R.
37403.
The Applicants have not indicated whether rail shipments (the likely mode of transshipment) will pass through heavily populated areas, but an examination of rail lines indicates that they will pass either through Payetteville or Raleigh.
Because of these admitted uncertainties, and the fact that this is a proper subject of inquiry for this Board, a detailed analysis of these environmental effects is necessary to a complete environmental impact analysis; there-i fore Sections 3.8 and 7 2 of the Applicants' ER are clearly inadequate.
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- 4. The Anolicants have failed to show that transportation of spent fuel to SHNPP from Brunswick and Robinson will maintain radiation exposures and releases "as low as is reasonably achievable" ( ALARA).
Under 10 C.F.R. 20.1(c), Applicants, as license holders (DPR 23, DPR 66, DPR-71--Robinson and Brunswick) and as prospective license holders for SHNPP, have an affirmative duty to keep radiation exposures and releases from their license activities "as low as is reasonably achievable."
As defined by the regulation, ALARA l
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Page 12 means as low as is reasonably achievable taking into account the state of techno-logy, and the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in rel-ation to the utilization of atomic ener g in the public interest. 10 C.F.R. 20.1(c).
This language implies a sort of balancing test to deter-mine if the method Applicants have chosen to handle their Robinson and Brunswick spent fuel will indeed be ALARA.
This was the course adopted by the Licensing Board in the Duke Power case, supra:
TVermont Yancee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
ALAB 455, 7 N.R.C. 41 (1978)] does not pre-clude an ALARA analysis of the viable alter-natives here for spent fuel transshipment, namely rerackin6...or construction of an ISFSI. Rather ALARA contemplates a compari-son with other alternatives to determine whether a proposed method of handling spent fuel does indeed maintain radiation exposures "as low as is reasonably achievable." 12 N.R.C. at 501 (emphasis added).
In overturning the Licensing Board on other grounds, the Appeal Board noted this approach, but declined to rule on the propriety of such an analysis, 14 N.R.C. at 323. Thus the Licensing Board's guidance in Duke Power is still apt; hY it is supported York Committee for a Safe Environment v.
g U.S.N.R.C., 527 F.2d 812 (D.C. Cir.1975), in which the Court held that no generic guideline was allowable as a means of complying with 10 C.F.R. 20.1(c). Instead, 'indiv-idualized consideration" of the costs and benefits of reducing exposures, even below existing guidelines, was
Page 13 required by the Court. Applicants' attempt to avoid con-sideration of the environmental effects of transshipment by relying on Table S 4 is clearly inconsistent with Duke Power and York: since Sections 3.8 and 7.2 of the ER do not contain an ALARA analysis, they are clearly inadequate.
Relief Reauested Petitioners CHANGE /ELP and CCNC, based on the fore-going, request that their contentions 9 and 4, respectively, be admitted for litigation. The relief anticipated under these contentions is as follows:
(1) That the Board order the Applicants to provide a " full description and detailed analysis of the environmental effects" of transportation of spent fuel to and from the SHNPP, as well as transportation of of unirradiated fuel to the plant and of packaged wastes away from the plant; or (2) That the Board at a minimum order the the Applicants to provide a " full descrip-tion and detailed analysis of the environ-mental effects" of transportation of spent fuel from Brunswick and Robinson to SHNPP, as well as effects of transportation of l
this incremental fuel from SHNPP to its next stopping place; and (3) That the Board, if it grants (1) or (2) above, allow Petitioners adequate time to consider the analyses provided by Applicants, for the purpose of formulating contentions based on this new information; or (4) That the Board deny such portions of the license requested in this proceeding as relate to the storage of spent fuel from Applicants' Bobinson and Brunswick plants at SHNPP.
If, based upon the foregoing, the Board prefers to order I
Page 14 the Applicants to prepare the requested analyses as part of its forthcoming order, Petitioners will accept deferral of their contentions, subject to the right to formulate new contentions at such time as the new informa-tion which such order would compel was available for review.
Resp trully submitted,
Daniel F. Head President Chapel Hill Anti-Nuclear Group Effort P.O. Box 524 Chapel Hill, NC 27514 b D. Hunkle Executive Coonlina. tor Conservation Council of North Carolina 307 Granville Hoad Chapel Hill, NC 27514 August 4, 1982
00LKETED UNITED STATES OF AMERICA USMC NUCLEAR REGULATORY COMMISSION In the Matter of CAROLINA POWER & LIGHT CO.
Docke et al., Shearon Harris Nuclear Plant, Units 1 & 2 50 400 50 4dj[ggfSE IiCE 5
CERTIFICATE OF SERVICE BRANCH I hereby certify that copies of *3Mff C0 W AMo S/rWt fvd Na:M' F/ M "
were served this M
day of Av.c.c f
,198 2, by deposit in the U.S. Mail, fir'st-
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class' postage prepaid, upon all parties whose names appear below, except those whose names are marked with an asterisk, for whom service was accomplished by li,Wj (NWrM s
James L. Kelley, Licensing BoardEsq./Mr. Glenn O. Bright /Dr. James Carpenter Atomic Safety &
(one each)
U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. John D. Runkle Dr. Phyllis Lotchin Conservation Council of North Carolina 108 Bridle Run 307 Granville Road Chapel Hill, NC 27514 Chapel Hill, NC 27514 M. Travis Payne, Esq.
Mr. Wells Eddleman Edelstein and Payne 718-A Iredell Street l
P.O. Box 12463 Durham, NC 27705 l
Raleigh, NC 27605 Dr. Richard D. Wilson Patricia / Slater Newman 729 Hunter Street CANP Apex, NC 27502 2309 Weymouth Ct.
Raleigh, NC 27612 l
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.T//?bi //l&
t
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l Daniel F. Read i
President Chapel Hill Anti-Nuclear l
Group Effort P.O. Box 524 i
Chapel Hill, NC 27514
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