ML20136C569

Brief in Support of 790725 Findings of Fact & Conclusions of Law & 790727 Motion for Stay.Urges Deferral of Decision Until Findings in Mn Vs NRC Are Made.Certificate of Svc Encl

ML20136C569
Person / Time
Site:	Zion  File:ZionSolutions icon.png
Issue date:	07/27/1979
From:	Sekuler S ILLINOIS, STATE OF
To:
References
NUDOCS 7909260465
Download: ML20136C569 (14)

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0 NUCLEAR REGULATORY COMMISSION 9_; - 1 bn1S7 .

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IN THE MATTER OF COMMONWEALTH EDISON CO. :: ION Station, Units

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Amendments to Facility ) Docket Nos. 50-295 Operating License Nos. DPR-39 ) 50-304 and DPR-48 )

(Increase Spent Fuel Storage )

Capacity) )

STATE OF ILLINOIS BRIEF IN SUPPORT OF ITS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAN AND MOTION FOR STAY OF PROCEEDINGS On July 25, 1979 the State of Il'linois (Intervenor) filed with the Board its Findings of Fact and Conclusions of Law in the above-captioned proceeding. Part I of this brief is in support of those findings of fact and conclusions cf law. At the hearing the parties were requested by the Board to present cach of their interpretations of the District of Columbia Court of Appeals' ruling in Minnesota v. United States Nuclear Reculatory Commission, et al., Occket Nos. 78-1269 and 78-2032 (May 23, 1979). Part II of this brief addresses the issues raised by that decision and supoorts the Motion for Stay filed by Intervenor on July 27, 1979, 1010 341

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, I The evidence presented on Contentions 2a, 2b and 2c argues that this licensing proceeding should be deferred.

Contention 2a challenges the adequacy of the Staff's NEPA analysis of the proposed modification. The testimony of Mr. Zech, who prepared the Staff's environmental. impact appraisal, indicates that the Staff had a practice of not performing an EIS on any spent fuel poolTrack modification license. The Staff's decision

~ 1 not to perform an-EIS in this proceeding was made before the EIA wasevennearcomplbtion.

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No careful assessment of site specific environmental impact was ever made: the decision not to perform an EIS was simply a rote application of Staff policy, and the EIA was essentially copied from the EIA on another rcrack proposal.

A deferral of this proceeding will provide time for the Staff to perform a site specific, proper EIA and on that basis to make an informed decision regarding the need for an EIS. The evidenco adduced in support of contention 2(b) on the Application of the five (5) factors presented by the Nuclear Regulatory Commission it .ts " Notice of Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel" 40 Fed. Reg. 42801 (September 16, 1975), further supports deferral.

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Regarding the fourth factor, the technical uncertainties raised at the hearing demonstrate that the issue of the long term safety of the racks cannot be resolved within this proceeding. On the fif th factor, evidence shows that deferral would not har.m the public interest. The occupational exposure for later installation of the racks is well within safe limits, and the station has capacity in the current configuration of its spent fuci pool for three more years.

V Finally, evidence on Contention 2(c) shcras that the need for additional storage space in the Zion spent fuel pool probably can be deferred for more than three years by reducing the plant's capacity factor. The Applicant's presentation on the impact of nonservation on the need for Zion's output was inadequate. The I cost of operation at a reduced capacity factor is only slightly higher than that of present operation. A deferral of 3 years will permit the Applicant to perform an adequate analysis of this alternative.

Policy issues aside, the State of Illinois intervened in this proceeding because of its belief that the design for the proposed rack modification was unsafe. Commonwealth Edison has i

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4 not produced sufficient evidence to sustain its burden to show that the proposed modification will indeed be safely implemented.

Many changes have been made in the prehearing period to correct

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acknowledged inadequacies in plans and design. The most noteworthy of these was to change from a scaled rack design to vented one.

Intervenor does' not dispute that Applicant has made a good faith effort to perfect its proposed modification. But Intervenor contends that despite its attempts to correct all of the deficiencies in the proposal the Applicant has been unable to do so. In part the reason for this is inherent in the technology as it presently exists. There is a plain and simple lack of knowledge regarding performance of the Brooks and Perkins racks in a borated spent fuel pool environment. These rackchave been in use for about one year. In that time ~ several problems have been recogni cd, none of them anticipated.. Continuing research and observation is necessary <

to allow the performance of the racks to be accurately predicted.

Even in the past month, Commonwealth Edison has altered its rack design again to accomodate new findings about possible corrosion and swelling. Therefore,until the technology has been perfected and a reasonable assessment of risks involved with using Boral I tubes can be made, the amendment should be deferred, i

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> - 5-J The Applicant's Quality Assurance program, though j carefully conceived, was shown to be inadequate to assure l that no defective tubes reach the plant. The release of defective  !

tubes that occur $ed51n? March 1979 was discovered not in the routine

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)3 working of the QA program but only when another error was made in

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j May. More completeLtesting will be-requir'ed at the station to

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• assure the safety of:the racks.. The~ Applicant's on site testing Given program is sound in principle but uncertain in its details.

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l the overwhelming importance of the neutron attenuation capability of the racks, the Applicant's on site testing should be extended i .

to every tube, not just an unspecified sampling. The boral coupons hung 1 in the pool sho5id"betincreased in number and hung-in different locations  !

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) around the pooll'AConsideration should be given to use of full-length  ;

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boral sheets *instead of small coupons. . Larger sheets would reflect a 1, ,

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actual rack conditions more closely.than could the proposed coupons.

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• 1 The Applicant has asserted that-there'is.no danger that i accidents will.cause?the pool to-lose sufficient amounts of water -

) to cause significant problems. Yet the Applicant's own witness I

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testified that a leak.in the liner could cause of 4000 gallons l to drain from the pool in less than five minutes. (Tramm, prepared testimony at 10-11; Tr. 564.) _

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_ ?? w Applicant' stressed that there were abundant sources of makeup water to supplement pool water in the event of an accident.

However scne of these backup sources require human intervention,which cannot be guaranteed.- :Until the Appiicant can assure the Board that

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its reliance on Suman 3ntervention will'not limit its ability to

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adequately correct lany: pool drainage or boiling problems and protect

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the public health'andfsafety, the' license amendment should not be granted.

Applicant has not sustained its burden to prove that the technical aspects of the proposed rack modification will assure the protection of public health and safety., Applicant admits that any license would have. to 'be limited by technical specifications and conditions in ohderi,to g.

. assure that the standards of safety and

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environmental protection dictated by.the; Atomic Energy Actl and I

NRC Regulations 2lwill be met. Applicant tries to limit the l

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imposition of technicaE specilications by citing the Appeal Board's j decision in Portland General Electric Co'. (Trojan Nuclear Power Plant) ALA3-531, 9 NRC (March 21, 1979) (slip opinion at 16-30),

but the Applicant neglects to mention that very case sets forth standards for the imposition of technical specification as well.

The Board explained.the function to be served by technical specifications and the role of Applicant commitments : 3 1

(1) Atomic Energy Act of 1954, as amended, 12 U.S.C. S2011 el sec. (1978)

(2) 10 CFR 0-199

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plationiof;both the Act and the regulations is that technical 1 specifications are to be reserved for those mattersfas to.which the imposition of rigid conditions or limitations'upon reactor operation 18 is deemed l necessary1to obviate the possibility of an abnormal

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to the!public. health and safety. This is not to say, of . course', sthat no significance attaches to co==itments -

in'a* licensee's safety analysis report which have not been ~found'toL possess safety 1 implications of sufficient gravity /and? immediacy to warrantLtheir translation into technical': specifications. . To the contrary, CFR 50.59 (b) specifically; charges holders of operating licenses with the duty?to:7 .

240 RO v=aintain records of changes in the facility ,

and of changes in procedures * *

• to the extent that such changes constitute

-changes in the facility'as described in the safety. analysis report or constitute changes

'in the procedures as described in the safety analysis report.19 (Footnote cmitted) 18 We: assume for present purposes, as have the parties at leastsimplicitly, that. technical specifications may,be required in connection with the operation of a a spent fuel pool (as distinguished from the operation '

of'the' reactor itself).

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The gravaman 'of the Troian Board's opinion in regard

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to the impositionYof3 technical specifications is ~that they are 9, M W po,e-s s .- c., m

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by the Intervenorti, an nn,= its ' Alternative Order sp'

'are 'in complete accord 4

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with these standards.:,jAdditionally,the Trojan Board set a high I

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burden on Applicants 1t'~ o. adhere ~to any' commitments or conditions

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not incoporated into[the' license'as technical' specifications:

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4 13.:: t ,,y; It bears' repetition, however,3 that this-should not beltaken as reflecting a belief that the Applicants.' are relieved of- any: obligation to take. appropriate measures to livs up to each of the: commitments with respect to pool l operation which are set forth in the design' report... .. ,,

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3 It is'therefore incumbent on the Board, if at any time it should grant ,the Application for license amendment,to incorporate j 1

into the license suchftechnical specifications, conditions and 1

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cc:nitments as necessaryi to ^ insure that(the public health and safety will be preserved. This obligation is in no way altered 4

by the ;ppeal Board's decision in Troian.

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s II m e. r.d On May;23,,1979 .c the Court of Appeals for the District I

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down its decision. in !!innesota v.

Unitcd States' Nuclear ^ Regulatory'Commi$sion, et'al. (Docket Nos. t r eg- g ep. .:. - , y +-+ _

78-1269, 78-2032) ~,iremanding --- -

the decision of the NRC Atomic

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Safety and Licensing Appcal Board in Northern States Power Comoany (Prairic Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Station 4

'tL7G- 4 5 5, 7 NRC 41 (1978).

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The cases had involved a spent fuel pool modifications

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4 similar to that at 2 ion.- One of'the issues raised was whether the co'lification should be viewed as a permanent storage request. The  !

Court of Appeals remanded the cases to the Commission with instructions '

to datermine:

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[W]hether there is reasonabic assurance that i an off site storage solution will be available by the years 2007-09, the expiration of the plant's operating  !

i licenses,/and if not whether:there is reasonable assurance that the fuel.can be storcd'. safely at the sites beyond those dates;",7(Slip opinion. at 14) . t In his concurring opinion Judge Tamm restated the Court's cpinica and specifically citcd the authority upon which the Court relied.

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fAlthough I* concur ~ in the

court's opinion, I writelseparately to emphasize my belief that sectionh102(2) '(C) _of the National Environmental Policy"Actvof.19694, and section 103(d) of the Atomic Energy Act of 1954J, mandate the determination that-the Commission identified in this case. In addition,'4if the Commission determines-it is not -]

reasonably probable that an offsite waste disposal solution will tx3 available when the licenses of the plants in question expire,-it then must deter-mine whether it is reasonably probable that the spent ~ fuel can be stored safely onsite for an indefinite period. Answers to these inquiric's are essential for adequate consideration of the safety and environmental standards of the relevant statutes. :It.is undisputed .that questions involving storage and1 disposal of nuclear waste pose serious concerns"for.hcalth and the environment. See Vermont Yankce}Muclear Power Corp. v.,NRDC, 435 U.S. 519, 533-39f (1973) . 2

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• The decision'in Minnesota v.'NRC obviously applies to this hearing.

Jurisdiction to hear this case is vested in the Ccamission, its adjudicatory as well as its rulemaking bodics.

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Vermont Yankee' stated:

Vermont Yankee will produce annually.well over 100 pounds of radio-active self, wastes,fsone_of which will be highlyftoxic. The Commission it-in a pamphlet published by its'information office, cicarly recognizes hazard..." U.S.that these wastes " pose the most severe potential health Atomic Energy Commission Radioactive Wastes, 12(1965)

?any of these substances must be isolated for anywhere from 600 to hundreds of thtusands of years. It is hard to argue that these w sten do not constitute "cdverse environ =cntal effects which cannot be avoided should the proposal be i=plemented," or that by operating nuclear power plants we are not making " irreversible and irretrievable commitments of resources." 42 USC SS4332 (2) (c) (ii) (v) [42 USCS SS4332 (2) (C) (ii) (v)] . As the Court of Appeals recognized, the environmental impact of the radio-active wastes produced by a nuclear power plant is analytically indis-

.inexishable bv frem.the a coal burning power environmental plant." 178 offects of "the stack gases produced US App DC, at 341, 547 F2d, at 630.

rcr these reasons we hold that that commission acted well within its statutory in individualauthority licensing when it considered proceedings. " the back cnd of the fuel cycle 435 U.S. 339 m g. .

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That theStatelofsIllinoiswithdran[.contentionsregardingpermanent

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storage from thisjproceeding pr. Lor to the Court of Appeals decision,

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- Wmc;6, s dacs not removelth'e51s' sues frr,m this ' case. Intcr,cnors were of the n:N@ ,S cpinion that(under$s!$$5l.

the? law, as,it existed at the time, no consideration j@f68% .

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issue cf permanent storage. See Northern States Pcucr Ccmpany:.E. inn. .'.f. L- LlIsland' Nuclitar Generating Plant Units 1 t. 2 ),

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ALAB-455, January?27,"51978.

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f the issue of? permanent' storage must be' dealt with in this case. The

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Board must defer ling until the Commission has held a proceeding to determine whethdrM permanent off site repository uill be available

.w It must'.Lthen apply the finding'to the facts of this case.

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by 2007.

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• If it is found that'no' repository will be available,then the facts sN in issue must b'e-viewed with an eye towards on-site storage of a

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4. Alternatively, the Board could reopen the record to receiv.:

evidence on these issues. liovever, Intervenor does not believe the.t either Applicant or Intervenor has the capability of sufficiently addressing the questions to be resolved. Therefore, it would be preferable to stay the proceedings pending a generic rulcmaking. M >.

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For thesE'rcasons Intervonor moves the Board to stay tho

receedings pending h(determination of the Commission on the issue of

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cif-site spent fuel].sto' rage capabilitics.

Applicant argues that there is no need to defer the issuance of the requested license. amendments until completion of the determination called for the Court of Appeals' remand. Applicant cites the fact that the Court of" App'aals did not set aside or stay the license amendments f

that had bcon grantedito Ucrthern States and Vermont Yanhec (Applicant's Brief, p. 9 unnumbered . This fact is not dispositive of the issue of

.cther or not stay the Zion proceeding. In the Northern States and Vermont Yankee situations the licenses had both been granted and the rcrac'< had been accomplished. To enjoin the use of the racks l'n those crues would be to subject the licensees to extrene hardship for they

<culd bc deprived of all storage facilitics for spent fuel. In the i

i n s r. a n t case the Applicant will suffer no hardship as the result of a i

stry. The license is'still contested.'This'is the optimal time for }

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l consideration of the issue at hand, especially since the evidence has  ;

sh:cn there is some~ question about the ability of the proposed racks to curvive their estimated 40 year life. To stay a decision would 1

.c'. cacve frem the Applicant an adequate storage facility. There are

present more than 400 remaining fuel spaces in the Zion pool.  !

Caly 125 assc=blics are placed in the pool each year.

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.The$$bliciinterest vmwgy will;notfbe .scrved . by rushing m3wser, , o <v ra ,: w. , #. , .

to licenselZi~on!beforefall the" appropriate

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consideredf $g pK W m,eTliEfAMlicant also#Gillshavo costs if it is allowed ~ ~

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to rerack andithen;must remove the racks when it is found that s fiQ, C . -y .

the plan is,not5 sufficient to:last beyond the interin storage

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3Itiistthe; obligation of this Board to stay the current ' - ~ '

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1  : .,t t .u - " < . . > . - a i decisions:regarding.the requested proceedings'and; . _ y.% % :p,.toideferQ making cy;. e:;~ ,;any,s -

license amendment until it can: assure;itself /and the public that all pertinent

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' findings fof, f': #K fact have been/.*tade, ' including those to bc

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=ade by the Commission as ordered by 'the Court of Appeals in Minnesota v. URC.~

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JyQ  ; 'N SUSAN N. SEKULER

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, Assistant Attorney General

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i$ Environmental' Control Division 188 West Randolph, Suite 2315 jy" Chicago, Illinois 60601 (312) 793-2491 r

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-5.[g7pm .gtDNITED STATES .0EjAMERICA' ' ,

W WiNUCLEAR REGULATORYiCOMMISSION 4ddpO.qth ,, . /M$R'Y@"

BEFOREcTHE5 ATOMIC SAFETY?AND LICENSING BOARD i

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IntheMatterof@@p;;[ms. @ hs.eW. Q ' ) N j:f t J ' ' '

C00:0SWEALTH EDISON { COMPANY  ;)y(l.DocketiLNos;

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50-295 50-304 s- v.

(Zion Station,4' d' n,;its: 1 4W . " crtg -/ -

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I 3ED9 herebyN!<&&ykthat' Wertif . .

copie;s/j stof?the State of Illinois' j.

t Brief in Supportlof3 Findings?of!Factgand MAYh9k$W$Conclusions lowr >'

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Q&MMnMde MMZCi2 PJ N dated July.27 pl97911n{the',above: captioned proceeding have been i

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i served upon-thej% hNt M 9 F following'lby. deposit',in;the United States mail 1

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j this 27th day?,'oflJuly.[,'?l0J9. . #QT " -

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John Wolf, Ch bhb ; h d

[ t .c' Safety & Licensing [

Atomic Safety;andiLicensingEBoard 'W;c Board Panel 1

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Penel L1 Wp WW ' , ,; ?i  !

U.S. Nuclear. Regulatory'Cermission" ?E'LU;S.ENuclear - iMashington', D.C. Regulatory 20555 Commissic: l 20555 {

7 J Jashington, D;C, t. M g g.n.c,Q, .

q$. 2. N . . Atomic 1 Safety & Licensing Appeal Dr. Linda U. Littleg gt h,- ,j g $ Board. Panel j Rcscarch TriangicKInstitute , J w;# S U'S.'Kuclear Regulatory Commissic~,

P.O.Eox 12194Triangle Research Ki QM $ @:k, % e:'~.s:j $g & Washington, D.C. 20555 North Carolina:27709 M ;&., 6RN

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~* $ j $' 4 1 3 & Service Section Docketing D . Ferrest'J: Remick WsEGW A;?J/Mfcl. ?iMMYij ,# U.S. Nuclear Regulatory Commissicr.

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3m i E. Hamilton #' Avenue %R I.

State College l., Pennsylvania Y *[ *Ia -

1680l Esq.* 4 *h @$ Wash p Richard Goddard,

. t 95:Q *M A M- Steven Goldberg Michael Miller,'Esq.

s Philip P. Stoptoe, Esq. Office of the Executive Legal Director Isham, Lincoln & Beale U.S. Nucicar Regulatory Co==issicr One First National Plar.a Washington, D.C. 20555 Chicago, Illinois 60690

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617 Piper Lane /

r p l Lahe Villa, Illinois - L u

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'l SUSAN N. SEKULER

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,DJ 7.E s- Environmental Control Division D

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