ML20063J579

Reply Opposing Chapel Hill Anti-Nuclear Group Effort/Environ Law Project 820804 Brief Concerning Spent Fuel Transshipment Supporting Contentions 9 & 4.Certificate of Svc Encl

ML20063J579
Person / Time
Site:	Harris
Issue date:	08/31/1982
From:	Oneill J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8209020465
Download: ML20063J579 (15)

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l UNITED STATES OF AMERICA WANCh NUCLEAR REGULATORY COMMISSION ,

, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD  :

j In the Matter of )

) l CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL i AND NORTH CAROLINA EASTERN ) 50-401 OL

MUNICIPAL POWER AGENCY )

)

i (Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )* '

i APPLICANTS' REPLY TO CHANGE /ELP AND CCNC *

. BRIEF CONCERNING SPENT FUEL TRANSSHIPMENT i

On August 4, 1982, Petitioners Chapel Hill Anti-Nuclear ,

Group Effort (" CHANGE")/ Environmental Law Project ("ELP") and ,

! Conservation Council of North Carolina ("CCNC") jointly ,

l submitted a "Brief Concerning Spent Fuel Transshipment"

("Brief") in support of CHANGE /ELP Contention 9 and CCNC t

) Contention 4. On August 10, 1982, the NRC Staff in its i

" Response to Licensing Board Inquiries *' adopted the legal l

! position taken by the NRC Staff in Duke Power Company, et al.

f (Catawba Nuclear Station, Units 1 and 2), Docket Nos. 50-413, L 50-414, "NRC Staff Response to Board Questions on Spent Fuel Storage and Operator Qualificati'ons"', at 9 (April 5, 1982),

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regarding the jurisdiction of the Board to consider environmental effects of shipping spent nuclear fuel to the Harris Plant from Applicant Carolina Power & Light Company's Robinson and Brunswick facilities. By letter dated August 10, 1982, Applicants indicated their intention to file a reply to both the August 4, 1982 Brief and the position due to be filed by the NRC Staff, by not later than August 31, 1982.

Applicants Carolina Power & Light Company ("CP&L") and North Carolina Eastern Municipal Power Agency hereby reply to the Brief submitted by CHANGE /ELP and CCNC and the position stated by the NRC Staff.

I. BACKGROUND Applicants' position regarding the issue of transshipment of spent nuclear fuel from Robinson and Brunswick to the Harris Plant has been briefed at some length in " Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman" (June I'

15, 1982) at 67-79 and at the Prehearing Conference (Tr.

176-181). Applicants' response to CHANGE /ELP Contention 9 is found at " Applicants' Response to Supplement to Petition to l

Intervene by Chapel Hill Anti-Nuclear Group Effort and Environmental Law Project" (June 15, 1982) at 36-39.

Applicants' response to CCNC Contention 4 is found at

" Applicants' Response to Supplement to Petition to Intervene by l Conservation Council of North Carolina," (June 15, 1981) at 10-11. t *.-

Briefly stated, Applicants, as part of their application for an operating license, seek authority to receive and store spent fuel from Robinson Unit 2 and Brunswick Units 1 and 2 at the Harris Plant. Applicants are not seeking authority to transship spent fuel from Robinson and Brunswick to the Harris Plant. CP&L already has authority, by virtue of its licenses to operate the Robinson and Brunswick Plants, and by virtue of the general license conferred on it by 10 C.F.R. 5 70.42(b), to transfer the spent fuel "to any person authorized to receive such special nuclear material under terms of a specific license or a general license or their equivalents . . . ."

While not taking issue with Applicants' position as stated above, NRC Staff believes that inasmuch as transshipment of spent fuel from other CP&L facilities is "a reasonably fore- ,

seeable outcome" of authorization to store such spent fuel at the Harris Plant and "a necessary step to accomplish such storage," the environmental impacts of such transportation

should be examined as part of the environmental evaluation of the spent fuel storage for which Applicants seek authorization.

l NRC Staff Response in Catawba, suora. While Applicants differ with the NRC Staff's, view of the Commission's responsibility

! with respect to consideration of environmental impacts of such transshipment in this instance, the difference in the

. Applicants' and Staff's position has no practical distinction.

NRC Staff also takes the p.osition th.at' the environmental impacts of transportation of spent fuel from Robinson and

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l Brunswick to the Harris Plant are encompassed in the values set forth in Table S-4 to 10 C.F.R. $ 51.20. Since the values in Table S-4 demonstrate that the environmental impacts of spent 1

fuel transportation are insignificant, incorporation of these values into the enviro.nmental impact statement for the Harris Plant operating license would have no impact on the cost / benefit analysis. See Tr. 181-182.

CHANGE /ELP and CCNC argue that (1) the environmental impacts of transportation of spent fuel from Robinson and Brunswick to the Harris Plant must be considered by the Board in the operating license proceeding, (2) that the values for environmental impacts from transportation of radioactive materials set forth in Table S-4 do not apply to the transpor-tation of spent fuel from Robinson and Brunswick to the Harris ,

Plant, (3) that Applicants' analysis in the ER is inadequate because it does not consider the effects of sabotage and/or diversion of spent fuel shipments, and (4) that Applicants have failed to show that transportation of spent fuel from Robinson and Brunswick to Harris will maintain radiation exposures and releases "as low as reasonably achievable." Applicants reply to each argument seria' tim below.

II. ARGUMENT A. IN CONSIDERING THE ENVIRONMENTAL IMPACTS OF THE ISSUANCE OF AN OPERATING LICENSE FOR THE HARRIG PLANT, THE COMMISSION NEED NOT TAKE INTO ACCOUNT ANY ENVIRONMENTAL IMPACTS FROM ACTIVITIES PREVIOUSLY l

AUTHORIZED BY A COMMISSION LICENSE AFTER COMPLIANCE WITH THE REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT While it is certainly true, as noted by the Staff, that I

transshipment of spent fuel from Robinson and Brunswick to the Harris Plant is a reasonably foreseeable outcome of author-ization to store spent fuel from those plants at the Harris facility, it does not follow that environmental impacts from such transshipments must be considered in the context of the 4

authorization for the Harris Plant to receive and store the Robinson and Brunswick spent fuel. The National Environmental Policy Act ("NEPA") does not require preparation of duplicative ,

environmental reviews for every licensed activity. This

! principle has become well-established in Appeal Board decisions

, regarding license amendments to operating plants, especially l amendments to permit expansion of spent fuel storage pools. In one such decision the Appeal Board stated plainly:

Nothing in NEPA or in those judicial decisions to which our attention has been directed di,ctates that the same ground be wholly replowed in connection with a proposed amendment to those 40 year operating licenses. Rather, it seems manifest to us that all that need be

! undertaken is a consideration of whether the amendment itself would bring about significant environmental consequences beyond those previously asse'ssed and, if so, whether'thos'e consequdnces (to the extent unavoidable) would be sufficient on balance to require a denial of the amendment application.

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Northern States Power Comr 2 (Prairie Island Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-455, 7 N.R.C. 41, 46 n.4 (1978), remanded on other grounds sub nom. Minnesota v.

Nuclear Regulatory Commission, 602 F.2d 412 (D.C. Cir. 1979).

See also Portland General Electric Company (Trojan Nuclear Power Plant), ALAB-531, 9 N.R.C. 263, 266 n.6 (1979). In Consumers Power Company (Big Rock Point Nuclear Plant),

ALAB-636, 13 N.R.C. 312 (1981), the Appeal Board took this line of reasoning one step further and reversed a licensing board decision which had held that an environmental impact statement

("EIS") was required to consider the environmental impacts of both spent fuel pool expansion and the additional term of operation permitted by such expansion. The licensing board had distinguished Prairie Island and Trojan, supra, because the nuclear plant in question had been licensed prior to NEPA and no environmental analysis had previously been prepared on the impacts of plant operation. The Appeal Board held that NEPA "is not an authorization to undo what has already been done,"

and that to formulate an EIS on continued plant operations --

l an activity already lfcensed by the NRC -- "would trivialize NEPA's EIS requirement." Id. at 328.

Here, CP&L already has authority to ship spent fuel to a i

facility authorized to receive it. The issue before the Board, and the action concerning which envirohmental impacts are l

appropriately considered, is the receipt and storage of such l

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spent fuel at the Harris Plant. The Commission has already considered the environmental impacts of such transportation of spent fuel from Robinson and Brunswick to any facility author-ized to receive it in the context of those licensing pro-ceedings. The environmental analysis suggested by the NRC Staff and CHANGE /ELP-CCNC is duplicative and simply not required.

CHANGE /ELP and CCNC cite Duke Power Company (Oconee-McGuire, Amendment to Materials License SNM-1773),

LBP-80-28, 12 N.R.C. 459 (1980) in support of their position.

Brief at 4. Of course that decision was reversed by the Appeal Board in ALAB-651, 14 N.R.C. 307 (1981). CHANGE /ELP and CCNC also cite to the Oconee-McGuire licensing board decision for the proposition that Applicants must consider alternatives to ,

transshipment. Brief at 5. The Appeal Board in reversing the licensing board there reiterated that "neither Section 102(2)(C) nor Section 102(2)(E) 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 the manner in which thir country's resources are being expanded.'", 14 N.R.C. at 321-322, citing Trojan, supra, 9 N.R.C. at 266. Accord, Virainia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),

I ALAB-584, 11 N.R.C. 451, 457-58 (1980); Public Service Electric and Gas Company (Salem Nuclear Generat'ing Station, Unit 1),

ALAB-650, 14 N.R.C. 43, 65 n.33 (1981). The impacts on the l

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environment of spent fuel transportation are negligible, as determined specifically for Robinson and Brunswick in their respective Final Environmental Statements and generically in Table S-4 to 10 C.F.R. S 51.20; thus consideration of alterna-tives is not required by NEPA.

B. EVEN IF ENVIRONMENTAL IMPACTS OF SPENT FUEL TRANSPORTATION FROM ROBINSON AND BRUNSWICK TO THE HARRIS PLANT WERE PROPERLY BEFORE THIS BOARD, SUCH IMPACTS ARE ENCOMPASSED BY THE VALUES ESTABLISHED BY RULE IN TABLE S-4 TO 10 C.F.R. S 51.20 AND ARE NOT SUBJECT TO LITIGATION IN THIS PROCEEDING CHANGE /ELP and CCNC argue that the values for envi-ronmental impacts of the transportation of nuclear fuel, as set forth in Table S-4 to 10 C.F.R. S 51.20, do not apply to the transportation of spent fuel from Robinson and Brunswick to the

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Harris Plant. Brief at 5-9. They reach this conclusion by the most narrow, tortured reading possible of the Commission's regulations and the Federal Register statements accompanying the Proposed Rule and Final Rule, and by restricting their view of the situation exclusively as a shipment of irradiated spent nuclear fuel to the Harris Plant. As CHANGE /ELP and CCNC concede, Table S-4 summarizes the environmental impacts of both the transportation of fresh fuel to a light water reactor and transportation of spent fuel from that reactor. While it is true that spent fuel will be shipped to the Harris Plant, it will also be shipped from Robinson and, Brunswick. Thus, such spent fuel shipments v1'ewed 'from* Robinson or Brunswick --

clearly meet every qualification in 10 C.F.R. S 51.2O(g) and the environmental impacts associated with such shipments would be encompassed in the values in Table S-4. Since such values also include the impacts of shipments of fresh nuclear fuel to -

Robinson and Brunswick, they necessarily overstate the envi-ronmental impacts of transportation of spent fuel to the Harris Plant. However, since such values amply demonstrate that the total impacts are insignificant, the overstatement is accepta-ble as an upper-bound.

C. EVEN IF ENVIRONMENTAL IMPACTS OF SPENT FUEL TRANSPORTATION FROM ROBINSON AND BRUNSWICK TO THE HARRIS PLANT WERE PROPERLY BEFORE THIS BOARD, APPLICANTS NEED NOT CONSIDER THE ENVIRONMENTAL IMPACTS OF SABOTAGE AND/OR DIVERSION OF SPENT FUEL SHIPMENTS ABSENT SUCH AN ISSUE BEING PROPERLY PLACED BEFORE THIS BOARD IN A CONTENTION SETTING FORTH A CREDIBLE SCENARIO FOR SUCH SABOTAGE OR DIVERSION WITH ~

REQUISITE BASIS AND SPECIFICITY CHANGE /ELP and CCNC assert that Applicants' ER is inadequate because it fails to consider the effects of sabotage and/or diversion of spent fuel shipments. Brief at 9-11.

While Petitioners are correct in indicating that the envi-t ronmental effects of sabotage and diversion are beyond the scope of the values set forth in Table S-4, there is no

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requirement of Applicants to speculate on such sabotage or diversion and to set forth the potential environmental impacts from such events. NEPA does not require Applicants to dwell on

" remote and speculative" potential environmental impacts. Life of the Land v. Brinegdr, /485 F.2d. 460, 472 (9th Cir. 1973),

cert. denied, 416 U.S. 961 (1974). Neither CHANGE /ELP nor CCNC

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has set forth a contention with basis and requisite specificity that establishes a plausible scenario for sabotage and diver-sion of spent nuclear fuel which puts Applicants and the Board on notice that such an event and its environmental impacts need be considered.

I The Commission's rule on " Physical Protection of l

Irradiated Reactor Fuel in Transit" requires that Applicants I not rely on cask design alors in shipments of irradiated reactor fuel. 10 C.F.R. S 73.37; cf. Brief at 11. In amending its interim rule on physical protection of spent fuel ship-ments, the Commission established certain security requirements

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and administrative requirements. 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." 45 Fed. Reg. 37403 (June 3, 1980).

Petitioners have provided nothing in their contentions nor their Brief that would challenge that Commission judgment or would demonstrate a need to take into consideration the l environmental impacts of the sabotage or diversion of spent f

! fuel shipments either to or from the Harris Plant.

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D. APPLICANTS ARE UNDER NO OBLIGATION TO SHOW THAT THE TRANSPORTATION OF SPENT FUEL FROM ROBINSON AND BRUNSWICK TO THE HARRIS PLANT WILL MAINTAIN RADIATION EXPOSURES AND RELEASES "AS LOW AS IS REASONABLY ACHIEVABLE" CHANGE /ELP and CCNC argue that Applicants have failed to compare their plan for transportation of spent fuel from Robinson and Brunswick to the Harris Plant with alternatives to determine whether Applicants' proposal will maintain radiation exposures "as low as is reasonably achievable" ("ALARA").

Brief at 11. Again Petitioners cito the licensing board in Oconee-McGuire for this proposition. While the licensing board there was not specifically reversed on its ALARA analysis, the Appeal Board carefully indicated that it was not reaching that issue since the ALARA analysis had not worked to the disadvan-tage of applicant's proposal, and thus to decide the issue ,

would amount to rendering an advisory opinion. 14 N.R.C. at 323 n.30. Furthermore, the proposition that ALARA must be considered in the context of alternatives to a particular proposal for licensing appears inconsistent with the Appeal Board's decision in ALAB-455, supra, 7 N.R.C. at 56 n.13, where the Appeal Board indicated that the ALARA standard comes into play only after,it has been determined that the appli-cant's proposal meets all other requirements imposed by 10

[ C.F.R. Part 20:

It bears emphasis that the ALARA standard comes into play only after it has been

! determined that the applicant's proposal l will comply'with'.al1 bther requirements imposed by Part 20, including the absolute limitations on permissible doses, levels, and concentrations set forth in 10 CFR j l l

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. o 20.101 et seq. Stated otherwise, the ALARA concept is addressed to the reduction of radiation exposure to levels below those which, no matter what the econcmic and other considerations, must not be exceeded.

In the context of spent fuel transportation, the Commission considered ALARA implications in issuing its rule on

" Physical Protection of Irradiated Reactor Fuel in Transit" and found "the difference in such small routine exposures is not a significant health factor and therefore not to be considered a significant factor in the choice of routing." 45 Fed. Reg. at 37404. Thus there is no requirement, and Petitioners have brought no information to this Board's attention which would suggest a need, for Applicants to consider ALARA in the context of transportation of spent nuclear fuel from Robinson and Brunswick to the Harris Plant. ,

III. CONCLUSION For all of the reasons set forth above, CHANGE /ELP Contention 9 and CCNC Contention 4 must be rejected. The environmental impacts of spent fuel transportation from Robinson and Erunswick are not an issue cognizable before this Board.- Even if the Board decides that it has jurisdiction to consider the environmental impacts of spent fuel transportation from Robinson and Brunswick to the Harris Plant, such impacts

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are encompassed in the values set forth in Table S-4 and are clearly insignificant.

Respectfully sGbmitted, I

e f

Ghorge

. 0 W. Trowbridofe P.C.

Thomas A. Baxter, P. .

J>hn H. O'Neill, Jr.

AW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Dated: August 31, 1982 J

i August 31, 1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket Nos. 50-400 OL AND NORTH CAROLINA EASTERN ) 50-401 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

CERTIFICATE OF SERVI _CF; I hereby certify that copies of " App.icants' Reply To CHANGE /ELP and CCNC Brief Concerning Spent Fuel Transshipmept" were served this 31st day of August, 1982, by deposit in the U.S.

mail, first class, postage prepaid, upon all parties whose names appear below:

James L. Kelley, Esquire Atomic Safety and Licensing Board

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U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Glenn O. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. James H. Carpenter

- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Charles A. Barth, Esquire Stuart A. Treby, Esquire Marjorie Rothschild, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

Docketing and Service Section Office of the Secretary ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Phyllis Lotchin 108 Bridle Run Chapel Hill, North Carolina 27514 Mr. Daniel F. Read, President Chapel Hill Anti-Nuclear Group Effort P.O. Box 524 Chapel Hill, North Carolina 27514 Mr. John Runkle Conservation Council of North Carolina 307 Granville Road Chapel Hill, North Carolina 27514 M. Travis Payne, Esquire Edelstein and Payne P.O. Box 12643 -

Raleigh, North Carolina 27605 Dr. Richard D. Wilson 729 Hunter Street Apex, North Carolina 27502 Mr. Wells Eddleman 718-A Iredell Street Durham, North Carolina 27705 Ms. Patricia T. Newman Mr. Slater E. Newman Citizens Against Nuclear Power 2309 Weymouth Court Raleigh, North Carolina 27612 Richard E. Jones, Esquire Associate General Counsel Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 I

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]\_l'N John 9./O'Neill, Jr. I