ML20079H363
| ML20079H363 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 12/13/1982 |
| From: | Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 8212160261 | |
| Download: ML20079H363 (22) | |
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' O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '62 Fb0 IS A10:05 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DUKE POWER COMPANY, --et al. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station )
Units 1 and 2) )
APPLICANTS' POSITION ON CONSIDERATION OF OCONEE AND MCGUIRE SPENT FUEL TRANSPORTATION ISSUES IN THIS PROCEEDING In its Memorandum and Order of December 1, 1982, the Atomic Safety and Licensing Board (" Board") deferred ruling on Palmetto Alliance / Carolina Environmental Study Group
("CESG") Joint DES Contentions 10 and 19 relating to the shipment of spent fuel from Oconee and McGuire to Catawba, pending further pleadings from the parties "concerning their position on the applicability of Table S-4 values to this case." The Board's ruling was in response to a Motion filed by Applicants an November 5, 1982. Applicants hereby respond to the Board's request for statements of position on this question.1 .
1 Part of the information provided in this position paper is drawn from documents previously submitted by Appli-cants in this proceeding, including Applicants' Responses to Contentions Filed by Palmetto Alliance (December 30, 1981), Applicants' Response to Licensing Board Questions (March 31, 1982), Applicants' Response to Supplement to Petitions to Intervene Filed by Palmetto Alliance and Carolina Environmental Study Group (October 4, 1982), and Applicants' Motion to Defer Ruling on Palmetto Alliance and Carolina Environmental Study Group's New Contentions (footnote continued) 8212160261 821213 - %
) -.,
I. Background Summary Table S-4 to 10 C.F.R. Part 51 ( 51.20(g))
addresses the environmental effects of the transportation of, inter alia, spent fuel from nuclear power reactors under certain prescribed technical conditions. These conditions include restrictions on the size and number of shipments per day per plant, the type of fuel contained in the shipment, and the age and burnup of the fuel. Spent fuel transpor-tation scenarios which fall within the parameters of Table S-4 need not be litigated in NRC licensing proceedings. (See 10 C.F.R. $ 2.7 58 ; see also, i.e., Pennsylvania Power &
Light Company, et al. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 315 (1979).2 (footnote continued from previous page)
Concerning Transportation of Spent Fuel (Nos. 10 and 19) and to Provide Parties an Opportunity to File Statements of Position (November 5, 1982). This information has been set forth again in this position paper for the Board's convenience.
2 In the Statement of Considerations accompanying Table S-4, the Commission stated:
The proposed amendment would allow applicants in their environmental reports, and the commission in its detailed environmental statements, to account for the environmental effects of trans-portation of fuel and waste by using specified numeric values contained in an appended Summary Table. 40 Fed. Reg. 1005 (1975).
In the event an intervenor seeks to challenge the table the Commission stated:
In such an instance, parties to a reactor licensing proceeding have available to them the provisions of 10 CFR $ 2.7 58 which provides, in (footnote continued)
On December 9, 1981, Palmetto Alliance filed conten-tions in this proceeding which raised issues regarding, inter alia, the environmental impacts associated with the possible transportation of Oconee and McGuire spent fuel to the Catawba spent fuel pool. Specifically, .in its Conten-tion 14 Palmetto Alliance maintained that the values set forth in Table S-4 were not applicable to such possible transportation activity because the destination of the spent fuel in transit would be the Catawba spent fuel storage facility rather than a fuel reprocessing plant. Both the Applicants and the NRC Staff disagreed with this position in.
their responses to this contention, each maintaining that Table S-4 is applicable to the environmental knpacts of transporting spent fuel from Oconee and McGuire to Catawba.
The Staf f further stated that "[t]o the extent Palmetto Alliance seeks to go litigate the impacts of spent fuel transportation outside Summary Table S-4, its contentions constitute an impermissible challenge to Commission require-l l
ments. 10 C.F.R. $2.758." Applicants took a similar posi-tion.3 s
(footnote continued from previous page) part, that the Commission, upon a showing of special circumstances such as those mentioned above, may waive the application of a rule in a particular proceeding.
3 See "NRC Staff Response to Supplemental Statements of
- Contentions by Petitioners to Intervene," December 30, 1981, p. 20, and " Applicants' Response to Contentions Filed by Palmetto Alliance," December 30, 1981, pp. 58-64.
l t
In its Order of March 5, 1982, the Board rejected Pal-metto Alliance's challenge to Table S-4, stating at p. 19:
We are disallowing Contention 14 because, as we read it, it seeks to avoid application of the Table S-4 values about transportation impacts solely on the ground that the spent fuel would be destined for the Catawba storage pool, instead of the hypothetical reprocessing plant referred to in the Table S-4 rule (10 C.F.R. 51.10(g)(1)). The contention does not postulate why the impacts of transporting to these different types of destin-ations would be different. We think they would be substantially the same and therefore that the Table S-4 values would apply.
Subsequently, in a joint pleading with Carolina Environ-mental Study Group (CESG), Palmetto Alliance sought recon-sideration of, inter alia, the Board's March 5, 1982 ruling regarding the applicability of Table S-4.4 However, in its July 8, 1982 Memorandum and Order, the Board reiterated its 4
position as to the applicability of Table S-4, stating that "no reason has been advanced as to why Table S-4 values would not adequately describe the environmental effects."
(July 8, 1982 Order at p. 6 ) .5 4 " Palmetto Alliance and CESG Responses and Objections to Order Following Prehearing Conference," March 31, 1982, pp. 16-17.
5 Palmetto Alliance also filed a cost-benefit contention (Contention 15) which alleged that i
The favorable cost benefit balance struck at the construction permit phase...is compromised by expanding the Catawba fuel storage facilities to
, accommodate fuel from other Duke stations, and by the transport of such fuel. July 8, 198 2 Order at p. 7.
In ruling on the contentions the Board stated that while i
(footnote continued)
L
Thereafter, in their joint pleading of September 22, 1982, Palmetto Alliance and CESG advanced new spent fuel transportation contentions (No. 10 and No. 19) allegedly based on information contained in the Draft Environmental Impact Statement (DES). These contentions asserted that the DES's treatment of the consequences of spent fuel transpor-tation was deficient, and thus by implication again challenged Table S-4. Both the Applicants 6 and the Staff 7 opposed these new contentions.
During Staff discussions with the Board at the pre-hearing conference on October 7-8, 1982 (Tr. 526-552), it became apparent that the Staff had changed its position in regard to the applicebility of Table S-4 to the possible shipment of Oconee and/or McGuire spent fuel to Catawba.
(footnote continued from previous page) it " lacks jurisdiction over shipment of spent fuel from other Duke facilities, [it] must consider the environ-mental impacts associated with its transport to, and storage at Catawba." Id. at p. 6. However, the Board did not admit Contention 15. Rather, it directed Palmetto Alliance to "... resubmit this contention based on the OL Environmental Statement, when issued..." Id. at p. 7.
Proposed DES Contentions 10 and 19 apparently serve as Intervenor's attempt to. comply with the Board's Order.
Accordingly, the matter of the need to consider environ-mental impacts in the context of these new proposed contentions is now before the Board and the instant pleading seeks to address the issue.
6 See " Applicants' Response to Supplement to Petitions to Intervene filed by Palmetto Alliance and Carolina Environmental Study Group," October 4, 1982, pp. 34-38, 53-58.
7 See "NRC Staff Statement of Position on Draft Environ-mental Statement Contentions," October 4, 1982, pp. 23-24.
The Staff had prepared, and had included as Appendix G to the DES, an environmental assessment for the shipment of McGuire and Oconee fuel to Catawba.8 The Staff indicated to the Board that Table S-4 values should not apply because the Staff's calculations in Appendix G were based on a previous environmental impact analysis performed for the shipment of Oconee spent fuel to McGuire9 rather than on Table S-4 (Tr.
571-72, 574). The Staff did not explain at the prehearing conference what had led it to conclude, contrary to its earlier positions, that Table S-4 values no longer applied.
Applicants observed that Appendix G was unnecessary. (Tr.
549-550, 575-76).
During subsequent discussions with the NRC Staff, how-ever, Applicants learned that the Staff concluded that the assessment contained in Aypendix G was necessary because it appeared to the Staff that, based upon certain representa-tions made by the Applicants, the potential number of possible spent fuel shipments which Applicants might make was greater than the assumed number set forth in Table S-4.
Table S-4 is based on the Commission's " Environmental Survey of Transportation of Radioactive Materials To and From j
8 Appendix G to the DES was the Staff's " Environmental l Impact Appraisal for Transshipment of Spent Fuel from Oconee and McGuire to Catawba Nuclear Station."
l 9 Environmental Impact Appraisal Related to Spent Fuel Storage of Oconee Spent Fuel at McGuire Nuclear Station -
Unit 1 Spent Fuel Pool, December 1978. Docket No. 10-l 2623.
Nuclear Power Plants," WASH-1238, December 197 2, and Supp.
1, NUREG-7 5 /038, April 1975. WASH-1238 contemplates a total of 60 truck shipments per reactor per year. In response to Staff questions concerning the possible number of annual truck shipments Applicants might make to Catawba, Applicants erroneously stated 300 per site, when the correct number is actually 300 per year.10 In order to clarify this situation, Applicants advised the Staff by letter of November 2, 198 2 that it is their intent that any proposed transshipments of Oconee and McGuire spent fuel to Catawba would be consistent with Table S-4. Applicants further modified their previous response to indicate that the number of. potential spent fuel truck ship-ments per reactor per year to Catawba would not exceed 60, or a possible maximum total of 300 shipments per year from both Oconee and McGuire.
Recognizing the apparent confusion which has arisen on this issue, Applicants moved for an opportunity to provide clarification. The Board in its December 1, 1982 Order deferred ruling on Palmetto Alliance /CESG's DES Contentions 10 and 19 pending receipt of pleadings from the parties on whether the environmental impacts of transporting Oconee and McGuire spent fuel to Catawba are covered by Table S-4 and, therefore, are not subject to litigation.
10 Such number is based upon three units at Oconee and two units at McGuire. Assuming, as Table S-4 does, a total of 60 shipments from each unit per year, the maximum number of shipments would be 300 per year.
__ _ _ ___ _ __________ I
II. The Environmental Effects Of Transporting Oconee And McGuire Spent Fuel To Catawba Should Not Be Litigated In This Proceeding A. The environmental effects of such trans-portation were reviewed and determined in previous licensing proceedings.
The environmental effects of transporting Oconee and McGuire spent fuel were fully evaluated and ruled on in the course of the licensing proceedings for the Oconee and McGuire plants, and are therefore not subject to litigation in this proceeding. That the associated effects of such transportation were in both instances found acceptable by the NRC is evidenced by the fact that the operating licenses for all three Oconee Units and for McGuire Unit 1 authorize licensee Duke Power Company to, inter alia, transport the.
spent fuel produced by the operation of the respective . faci-lities.
The FES for the operation of Oconee Units 1, 2 and 3 was issued in March, 1972.11 With respect to the shipment of spent fuel, the FES assumed that irradiated fuel would be sent by truck or rail "to a licensed fuel recovery plant, probably the plant at Barnwell, South Carolina, a distance of about 150 miles. (FES at 88) . The number of shipments for all three Oconee reactors was projected to be up to 89 truck shipments per year.12 Each assembly was assumed to 11 The Oconee FES was published before the existence of Table S-4 or the publication of the background document for the Table, WASH-1238 (issued in December, 1972). <
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have been irradiated to approximately 10,000 megawatt days per ton. On the basis of the above, the NRC concluded that impacts associated with normal and accident conditions would not be significant. See FES Sections IV.B.2 and IV.B.3; see also FES at 149 wherein the Staff concluded:
The impact on the environment of transportation under normal or postulated accident conditions is not considered to be sufficient to justify the additional effort required to implement any of the alternatives.
By the time the FES was prepared for the McGuire Station, Table S-4 had been issued by the Commission. This FES, issued in April, 1976, found that:
[t3he transportation of cold fuel to each of the McGuire reactors, of irradiated fuel from each reactor to a fuel reprocessing plant, and of solid radioactive wastes from each reactor to burial grounds is within the scope of [ WASH-1238] pro-mulgated as 10 C.F.R. Section 51. 20(g) . (McGuire FES, p. 5-34).
l The FES also reiterates in its cost-benefit section that the environmental costs associated with "the effects of trans-portation of fuel and waste to and from the facility...are sufficiently small as not to affect significantly the con-l ,
clusion of the Cost-Benefit Balance." (FES, p. 10-5).
It is therefore clear that the environmental effects associated with the shipment of Oconee and McGuire spent fuel were thoroughly reviewed in the respective Final En-l
! 12 The FES reflects that the cask used in each truck ship-ment will hold 2 or more fuel elements (i.e., assem-
- blies) (FES at 89 ) . This number is consistent with the
- 180 assemblies set out in the criteria of table S-4 for l Oconee.
i
vironmental Statements for these facilities, and were deter-mined by the NRC in both instances to be acceptable. Pro-
-vided that shipment is consistent with these evaluations, further consideration is unwarranted. Intervenors have made no showing to the contrary.13 B. Applicants now have the authority to possess and transfer spent fuel from Oconee and McGuire Under the current operating licenses for the Oconee and McGuire facilities, Duke Power Company already has the authority to possess and transport Oconee and McGuire spent fuel.
Special nuclear material (SNM) and by-product material licenses incorporated in the operating licenses for the Oconee and McGuire units provide, inter alia, the authority
"[p]ursuant to the [ Atomic Energy] Act and 10 CFR Parts 30, 40 and 70, to possess, but not separate, such by-product and special nuclear materials as may be produced by the opera-tion of the facility." McGuire Nuclear Station Unit 1 Facility Operating License (No. NPF-9), Section
- 2. B . ( 5 ) (1981) Corresponding provisions appear in the Oconee Station Licenses for Unit 1 (No. DPR-38) (February 6, 1973), Unit 2 (No. DPR-47) (October 6, 1973), and Unit 3 13 As noted on pp. 3-4 supra, Palmetto Alliance attempted to distinguish between Catawba and a spent fuel repro-cessing facility which was the spent fuel destination assumed in subject of the environmental reviews of Oconee and McGuire. This Board rejected such an argument. Id.
(No. DPR-55) (July 19, 1974). Such authority extends to radioactive materials produced as a result of plant opera-tions, including contaminated demineralizer resins as well as spent nuclear fuel.
Having once obtained authority to possess, 10 C.F.R.
$7 0. 42(b) provides licensee with the the regulatory auth-ority to transfer such SNM to any person authorized to receive the material. Section 7 0.42(b), specifies that Except as otherwise provided in his license and subject to the provisions of paragraphs (c) and (d) of this section, any licensee may transfer special nuclear material: . . . (5) to any person authorized to receive such special nuclear mate-rial under terms of a specific license or a gen-eral license or their equivalents issued by the Commission or an Agreement State....
An identical provision respecting the transfer of by-product material is set forth in 10 C.F.R. 30.41(b).14 Indeed, this inherent authority to transfer SNM and by-product material is routinely exercised by Duke and by all other power reactor licensees each time contaminated materials are shipped off-site. For example, with respect to by-product material, approximately 700 such shipments l
! from Oconee have been made in 198 2 alone. With regard to spent fuel, Duke has in seven instances between 1975-1980 14 Persons authorized to receive, possess, use or transfer licensed materials (SNM nnd by-product) most meet the '
transportation requirements of 10 C.F.R. Part 71 if they deliver such materials to a carrier for transport or transport such material outside the confines of the licensee's plant or other place of use. 10 C.F.R. $71. 2.
shipped spent fuel to the Babcock & Wilcox facility in Lynchburg, Virginia. Important to these examples is the fact that no license amendment or other type of special permission requiring an assessment of the environmental impacts of transportation was necessary in order for Duke to ship the by-product material or spent fuel.
The above position, and Duke's actions which are con-sistent therewith, finds support in other areas. In the Barnwell fuel storage facility licensing proceeding, for example, the Applicants therein, like Catawba Applicants herein, sought authority to receive and store irradiated fuel from reactors. The Licensing Board was confronted with several contentions concerning the alleged environmental effects associated with transportation of spent fuel to Barnwell.15 Denying these contentions, the Board held that the " matters asserted in [these] contention [s] are outside the scope of the present proceeding which concerns only a separately operable fuel storage facility." See Allied-General Nuclear Services (Barnwell Fuel Receiving and Stor-age Station), LBP-76-24, 3 NRC 725, 735 (1976). In any event, the Barnwell Licensing Board also held that the 15 The specific Barnwell contentions referred to relate to transportation accidents, (47(b)), transportation
, accidents resulting from unsafe condition of the nation's railways, (51) and advising the public of amounts of exposure received from normal and accidental transportation activities (53).
environmental effects of transporting spent fuel to the Barnwell facility were governed by Table S-4 and thus not litigable, absent special circumstances. Id.
In view of the above, the environmental impact asso-ciated with Duke's shipment of Oconee and McGuire spent fuel to Catawba (a matter which has already been considered on those dockets) should not be a part of the Catawba pro-ceeding. Applicants seek in this proceeding only the auth-ority to receive and store such spent fuel at Catawba.16 Assuming Duke's compliance with pertinent regulations,17 no other authority beyond that requested here is needed to transport and store Oconee and McGuire spent fuel at the Catawba facility. Accordingly, the only valid area of inquiry in this proceeding is the safety and environmental 16 Duke previously sought and received on the McGuire docket authority to receive and store Oconee spent fuel at McGuire. Therein, the NRC permitted the storage of 300 Oconee spent fuel assemblies at McGuire. It should be noted that that proceeding did treat the effects of the transportation of the spent fuel from Oconee to McGuire. Duke argued early in the case that such was in error. However, the Staff disagreed. The Board ruled with the Staff. Neither the Staff nor the Board gave specific reasons Why they believed the matter should be considered in that proceeding. However, Applicants can only surmise that the issue was not fully understood.
l In any event, the environmental assessment performed by the NRC Staff in that case assumed that the subject 300 shipments were to take place in one year, a circumstance not present in the instant proceeding. See Applicants' letter of November 2, 198 2 referenced above.
1 17 These include 10 C.F.R. Part 71 provisions regarding approval of shipping casks, Department of Transportation provisions governing such shipments, and route approval provisions set forth in 10 C.F.R. 73.72, as incorpor-ated into 10 C.F.R. $7 3. 37 ( b) ( 1) ) .
[
concerns associated with the receipt and storage of such spent fuel at Catawba, not the transportation activity
. associated therewith.18 C. The environmental effects of trans-porting Oconee and McGuire spent fuel to Catawba are set forth in Table S-4 and need not be litigated here.
In the event the Board concludes that the environmental impacts of transporting Oconee and McGuire spent fuel to Catawba warrant further consideration in this proceeding, Applicants submit that such impacts are within the bounds of Table S-4. See Applicants' letter of November 2, 198 2 re-ferenced above, which commits Duke to conduct any potential transportation activity for any of the three Oconee units and the two McGuire units in a manner consistent with the considerations of Table S-4. Accordingly, pursuant to Commission regulation, this question need not be litigated absent a showing of special circumstances. 10 C.F.R. $2.758; Susquehanna, supra. Intervenors have failed to demonstrate such circumstances in their DES Contentions 10 and 19.
18 If a member of the pubiic seeks to challenge such shipments as being beyond that contemplated in the operating license, then the procedures of 10 C.F.R.
k2.206 must be utilized. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-81-6, 13 NRC 443, 446 (1981), and cases cited therein. Applicants would note that this Board has already rejected the argument that auch shipmenta shoul d .
not be permitted because Catawba is not a reprocessing facility. Accordingly, with this ruling serving as precedent, some other reason would have to be advanced in order for the matter to be considered under Section 2.206.
These contentions should therefore be dismissed.19 This position is entirely consistent with the Licensing Board's ruling in Barnwell regarding the application of Table S-4.
See pp. 12-13 supra.
It should be emphasized that if the Board determines that the environmental impacts associated with shipment of Oconee and McGuire spent fuel to Catawba are to be considered in this proceeding, the only permissible point of inquiry on this docket is the identification and assessment of the impact of Oconee and McGuire spent fuel shipments to Catawba.20 Table S-4 quantifies impact of spent fuel 19 A Licensing Board recently emphasized that the Com-mission's " basis with specificity" requirement requires an intervenor to state the reason for his contention.
Although the Board was focusing on safety contentions, the same standards apply to environmental contentions:
This statement [of the reason for the con-tention] must either allege with particular-ity that an applicant is not complying with a specified regulation, or allege with particu-larity the existence and detail of a substantial safety issue on which the regulations are silent. In the absence of a ' regulatory gap,'
the failure to allege a violation of the regu-lations or an attempt to advocate stricter re-quirements than those imposed by the regulations will result in a rejection of the contention, the latter as an impermissible collateral attack on the Commission's rules (10 C.F.R. 2.758). Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), NRC (November 17, 1982),
slip op. at p. 9.
20 Applicants acknowledge that the potential shipment of Oconee and McGuire spent fuel to Catawba involves an additional step in the process evaluated in the Oconee and McGuire environmental reviews. Simply put, the (footnote continued)
transportation. See Barnwell, supra. This impact is the same Whether spent fuel is coming from the producing reactor or going to a storage site. Accordingly it is appropriate to use Table S-4 to quantify the impact, and, if the Board is inclined to rule that Oconee and McGuire shipments to Catawba must be considered on the Catawba docket, to factor this impact into the Cathwba cost-benefit analysis. To be clear, this impact would be additional to the Table S-4 impact applicable to Catawba fuel.
To the extent that the NRC Staff's decision to prepare Appendix G was based upon a misunderstanding of Applicants' position, any bases of such misunderstanding no longer exists. See discussion at p. 6-7 supra Which makes reference to Applicants' letter of November 2, 1982. Thus, it appears that there is no basis for the NRC to include Appendix G in its FES. Moreover, in light of the foregoing ,
( footnote continued from previous page) environmental analysis performed for Oconee and McGuire assumed shipment to a reprocessing facility and final storage of those products not reutilized either at such site, or a permanent repository. Shipment to Catawba would be an interim measure; shipment to a reprocessing faciliti and/or a final repository would still be contemplated. Accordingly, the Oconee and McGuire to Catawba shipment activity would involve one additional loading and one additional unloading. The impact associated with loading and unloading is contained as part of the dose set forth in Table S-3 to Part 51 under the heading Transportation (person-rem). This precise value should be documented by the Staff using WASH-1248 and Supplements 1 and 2 thereto. This value should then be factored into the Catawba cost-benefit analysis. It is to be emphasized that such cost-benefit consideration would not involve consideration of the impacts associated with the actual trancportation activity.
L .
J the Board should not hesitate to re-affirm the position it i
- took in its March 5, 1982 and July 8, 1982 Orders regarding the applicability of Table S-4 to the environmental impacts of transporting Oconee and McGuire spent fuel.to Catawba.21 j 21 In prior discussions at the October prehearing con-
]' ference, it was suggested that Contentions 10 and 19 contemplated ingoiry into the need for shipments of Oconee and McGaire spent fuel to Catawba. (Tr. 537-38).
Such position was based upon the assumption that the
- subject transhhipments must be considered on the Catawba docket (an assumption this pleading attempts to dissuade ,
l the Board of) . It fails to take into account clear l Appeal Board precedent that alternatives need not be considered if the impacts associated with the activity under review are insignificant. See Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-l 5 31, 9 NRC 26 3, 266 (1979) wherein it is stated:
i As we read it, the NEPA mandate that alterna-i tives to the proposed licensing action be explored and evaluated does not come into play i in such circumstances--in short, there is no obligation to search out possible alternatives i to a course which itself will not either harm
. the environment or bring into serious question l~
the manner in which this country's resources are being expended.
Applicants note that the Appeal Board's holding in Trojan, supra, affirmed the Licensing Board's decision to refrain from considering alternatives. The Trojan Licensing Board reasoned:
It is not necessary, however, to choose among alternatives or to predict needs on the basis of the present evidence. In our findings, supra, we have determined that the adverse environ-mental impacts of this license amendment will be negligibly small. Clearly, if the adverse impacts of the proposed action are negligible, the impacts of any alternative must be equal or groster, and it has bson hold that 'an alter-native which would result in similar or greater harm need not be discussed.' (Sierra Club v.
Morton, 510 F.2d 813, 825 (5th Cir. 1975))). As to the question of need for power, as we view
( footnote continued)
4 ;
III. Conclusion on the basis of the above, Applicants submit that this Board should not consider the impacts associated with the shipment of Oconee and McGuire spent fuel to Catawba. This is a matter which should be considered on those respective
( footnote continued from previous page) it, that question can only be considered against the background of a cost-benefit balance, and
! absent any substantial environmental costs, any benefit whatever would tip the scale. We therefore believe that we need not consider alternatives or the need for the modification in i any detail. Indeed, in the opinion of this Board, not only is such consideration unneces-sary, it is very inadvisable, since it infringes upon those very prerogatives and duties of cor-porate management Which we should eschew usurp-ing. To be sure, were there substantial adverse environmental impacts, our duties under NEPA would require us to balance them against bene-fits and examine less damaging alternatives.
j But Where, as here, the proposed action has no such impacts, we can leave considerations such as economic advantage, capacity requirements, 4
and the vigor with which offsite storage should be pursued to those within the company to Whom such decisions are normally entrust. [ Trojan, supra, LB P-7 8 -3 2, 8 NRC 413, 454 (1978)].
Inasmuch as the shipments in question are within the scope of Table S-4, the impacts are indeed insignificant. See Duke Power Company (Amendment to Materials License SNM-1773 etc.), ALAB-651, 14 NRC 307, 321 (1981) wherein the Appeal Board found, in considering an activity involving the shipment of 300 spent fuel assemblies in one year, that such transfer will have " negligible environmental effects." See also WASH-1238, supra at p. 56 (the supporting documentation for Table S-4) wherein it is stated:
Under normal conditions enere are no effects on the environment which would be considered adverse, and although the consequences of cred-ible accidents are serious, the probability is so small that the overall risk is not sufficient
( footnote continued)
dockets, if at all. However, if this Board disagrees, holding that such impacts are to be considered on this docket, Applicants submit that the transportation activity will be consistent with Table S-4 and thus that such table should be utilized.22 Such a course precludes intervention on this point, absent a showing of special circumstances, in that such would be an attack on the regulations.
(footnote continued from previous page) to justify any significant effort to further reduce the consequences.
Further, there can be no question that need to ship is an alternative. Simply put, no shipment is one alternative to shipment 22 Applicants' alternative approach should not be viewed as a waiver of itt right to appeal an adverse ruling regarding its primary position that the impacts asscciated with the shipment of Oconee and McGuire spent fuel to Catawba should not be considered on the Catawba docket.
i
Lastly, Applicants observe that an examination of past handlings of spent fuel issues reflect inconsistent treat-ment. Applicants submit that the issue has never been thoroughly analyzed. This Board has the opportunity to enunciate the correct course to be pursued and Applicants trust the instant pleading proves helpful.
Respectfully submitted, J.
/f' Michael McGarry,f/III Anne W. Cottingham DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 William L. Porter Albert V. Carr, Jr.
Ellen T. Ruff DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2570 Attorneys for Duke Power
, Company, et al.
December 13, 1982 l
i
)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
DUKE POWER COMPANY, --et al. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station,- )
j Units 1 and 2) )
CERTIFICATE OF SERVICE i I hereby certify that copies of " Applicants' Position On j Consideration Of Oconee And McGuire Spent Fuel Transportation Issues In This Proceeding" in the above captioned matter have been served upon the following by deposit in the United States mail this 13th day of December, 1982.
James L. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Panel Director l U.S. Nuclear Regulatory U.S. Nuclear Regulatory l Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 l
~
Dr. A. Dixon Callihan William L. Porter, Esq.
Union Carbide Corporation Albert V. Carr, Jr., Esq.
P.O. Box Y Ellen T. Ruff, Esq.
4 Oak Ridge, Tennessee 37830 Duke Power Company P.O. Box 33189 Dr. Richard F. Foster Charlotte, North Carolina 28242 4 P.O. Box 4263 Sunriver, Oregon 97702 Richard P. Wilson, Esq.
{ Assistant Attorney General
- Chairman State of South Carolina l Atomic Safety and Licensing P.O. Box 11549 i Board Panel Columbia, South Carolina 29211 U.S. Nuclear Regulatory l Commission Robert Guild, Esq.
Washington, D.C. 20555 Attorney-at-Law
, P.O. Box 12097 Chairman Charleston, South Carolina 29412 I Atomic Safety and Licensing l Appeal Board Palmetto Alliance U.S. Nuclear Regulatory 2135 1/2 Devine Street 1 Commission Columbia, South Carolina 29205 Washington, D.C. 20555
Jesse L. Riley Scott Stucky 854 Henley Place Docketing and Service Section Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Henry A. Presler Washington, D.C. 20555 Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28 207
/J. Michael cGarp,III i