ML20148T118
| ML20148T118 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 11/09/1978 |
| From: | Rowe J, Steptoe P ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| NUDOCS 7812040311 | |
| Download: ML20148T118 (17) | |
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'.. i N110 PUBLIC DOCUMENT noCM p#, l UNITED STATES OF AMERICA
- g - [ ,, 1 NUCLEAR REGULATORY COMMISSION. g3 -3 !
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$9 e[$
l Q fh 'Y# 4 In the' Matter of )
) y 8 COMMONWEALTH EDISON COMPANY ) &
) Docket Nos. 50-295 (Zion Station Units'l and 2) ) 50-304
)
Proposed Amendments to Increase )
Spent Fuel Storage Capacity )
(43 F.R. 30938) )
i COMMONWEALTH EDISON COMPANY'S MOTION TO STRIKE CONTENTIONS l AND SUPPORTING MEMORANDUM j I. MOTION TO STRIKE Commonwealth Edison Company (" Applicant"), hereby requests that the Board strike Amended Contentions 2, 6.D.
and 16 from the Amended Contentions submitted by the Attorney General of Illinois (the " Attorney General"), on November 1, 1978. The grounds for Applicant's motion are set forth below.
II. MEMORANDUM IN SUPPORT A. Background of Proceeding On April 13, 1978, Commonwealth Edison Company
(" Edison") filed ar,. application with the NRC seeking per-mission to_ increase spent fuel storage capacity at its Zion Nuclear Generating station through the installation of high density fuel storage racks containing boral, a neutron I
absorbing material. A notice in respect of this application, entitled " Proposed Issuance of Amendments to Facility Oper-
.ating Licenses," was published in the Federal Register on 78120.403 // ,
c j
7-g
-g-July 18, 1978. (43 Fed. Reg. 30938) On August 15, 1978, the Attorney General filed a timely petition for leave to intervene in this proceeding. No other petitions to intervene have been filed. This Atomic Safety and Licensing Board was designated on August 21, 1978.
Due to Applicant's desire that this matter proceed as rapidly as possible and due to the Attorney General's identification of its areas of interest in contentions stated in its original petition, Applicant immediately permitted discovery and began to make relevant documents available. Discussions between Applicant, the Attorney General and the NRC Staff have been held. After the period j of discovery and negotiation, the Attorney General filed a i set of 16 amended contentions on November 1, 1978. Applicant now moves to strike Amended Contentions 2, 6.D and 16 on the grounds that they fail to state claims upon which relief may be granted in this proceeding. At a meeting with the NRC l Staff and the Attorney General on October 23, 1978, Applicant i
stated that it intended to move to strike these contentions, together with Amended Contentions 6.A, 9 and 15. The parties agreed to file simultaneous briefs as to those issues.
However, the Attorney General has subsequently withdrawn j Amended Contention 15, and Applicant decided that the subject matter of Amended Contentions 6.A and 9 might more easily be addressed by_way of a motion for summary disposition pursuant to 10 CFR $ 2.749. Counsel for the other parties were advised accordingly.
I Of course, by not moving to strike all of the amended contentions, Applicant does not admit that any of them are legally relevant to this proceeding and does not waive its right to make arguments based on legal relevance along with showings that no genuine issues exist as to any material fact in connection with motions for summary disposition.
i I
B. General Requirements for the Admission of Contentions The relevant standards which this Board must apply )
1 in determining the legal admissibility of contentions are 1
easily stated. First, an intervenor's contentions and the I basis for each contention must be set forth with reasonable specificity. 10 CFR S 2.714(b). Second, the contentions must be within the scope of this proceeding; stated another way, there must be a nexus between the licensing action proposed and the issues sought to be litigated. See, e.g.,
Kleppe v. Sierra Club, 427 U.S. 390 (1976); Public Service Co.
of New Hampshire, et al. (Seabrook Station, Units 1 and 2),
CLI-77-8, 5 NRC 503, 541-2 (1977); Gulf States Utility Company (River Bend Station, Units 1 and 2), 6 NRC 760, 773-4 (1977).
This requirement has repeatedly been enforced in recent spent fuel pool modification cases. Public Service Electric and Gas Company, et al. (Salem Nuclear Generating Station,
. Unit 1), Dkt. No. 50-272, Memorandum and Order (April 26, 1978) (Slip opinion at 7-8); Id., order of the Atomic Safety and Licensing Board following Special Prehearing Conference (May 24, 1978) (slip opinion at 5-8); Wisconsin Public Service l Corporation, et al. (Kewaunee Nuclear Power Plant) Dkt. j l
l
r
. No. 50-305, Order of the Atomic Safety and Licensing Board ;
(October 11, 1978).
Further, issues considered and resolved in prior I
NRC operating license proceedings need not be reconsidered j i
in subsequent spent fuel pool modification proceedings, l absent some showing that the proposed modification changes the analysis. Northern States Power Company (Prairie Island 1
Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee !
1 Nuclear Power Corporation (Vermont Yankee Nuclear Station),
1 ALAB-455, 7 NRC 41, 46-7n.4 (1978); Public Service Electric ,
and Gas Company, et al. (Salem Nuclear Generating Station, Unit 1) Memorandum and Order (April 26, 1978) supra, at 3-4, 8-9.
Finally, licensing proceedings are not an approp- ,
riate forum in which to challenge the commission's regula- i tions, 10 CFR $ 2.758, or in which to address issues which are the subject of general rulemaking, Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 381, 406 (1974). Nor may intervenors use such occasions to litigate the appropriate-ness of NRC general policies. Philadelphia Electric Co.
- (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 and fn. 32 (1974), aff'd without discussion of this point, CLI-74-032, 8 AEC 217 (1974); Northern States Power Company, supra, 7 NRC 41, 51.
Applying these rules to the Attorney General's amended contentions, it is clear that Amended Contention 2, which seeks to proh bit "nonemergency licensing" of spent l
r fuel pool expansion applications,.is not admissible. No rule restricts spent fuel pool expansion to emergency situa-tions. Morever, the Commissions stated policy is to permit such expansion when applicable requirements are met. Amended
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Contention 6.D, which specifically refers to " credible l accidents not directly caused by the proposed pool modifi-l cation," is inadmissible because it seeks to raise issues I l
l which do not appear to be within the scope of this pro- )
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ceeding. Further, the safety issues which the contention seeks to reexamine were addressed and resolved in the Zion operating license proceeding. No basis is given for believing that this analysis is now inadequate. Amended Contention 16, which deals with antisabotage and security plans, must j be struck because, in recognition of the fact that such plans are extremely sensitive, the Appeal Board has required that !
intervenors persuasively demonstrate the relevance of a 1
proposed amendment before such plans may be disclosed. l Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) ALAB-410, 5 NRC 7398, 1403-4 (1977). i The reasons why these contentions fail to state grounds upon which relief may be granted in this proceeding are set forth in more detail below.
C. Contention 2 ;
. Amended Contention 2 states:
Approval of the amendment request would be contrary to the NRC policy position on spent fuel storage which prohi-bits nonemergency licensing of any existing storage facility prior-to the-adoption of an official long range policy regard-ing.the: permanent storage of spent' fuel. See " Intent to Pre-pare Generic ~ Environmental. Impact Statement of Handling'and Storage-of Spent Light Water Power Reactor Fuel," 40 F.R. 42801, i september 16, 1975.
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A. There is no emergency need to rerack as the existing storage pool contains more space than is necessary to accommodate full core discharge.
B. The existing pool is able to accommodate nor-mal refueling discharges until 1981, therefore failure to grant the application at this time poses no threat of im-minent shutdown of the facility.
This contention must be dismissed because no Commission rule requires a showing of an emergency prior to the licensing of a fuel pool expansion and the contention states no grounds for requiring such a showing. Morever, the contention is based on a misreading of the NRC's Notice of Intent. In formulating this statement, the Commission expressly rejected a request that fuel pool expansion be restricted to emergencies. The Commission said:
The Commission has also given careful consi-deration to the question whether licensing actions intended to ameliorate a possible l shortage of spent fuel storage capacity, ;
including such actions as the issuance of '
operating license amendments to permit in- 1' creases in the storage capacity of reactor spent fuel pools,...should be deferred pend- 1 ing completion of the generic environmental i impact statement. Such a deferral was re-quested in the letter on behalf of Natural Resources Defense Council, Sierra Club, and Businessmen for the Public Interest....*
I (Applicant's footnote) The reference is to a letter to L. V. Gossick from A. Z. Roisman dated May 20, 1975. In l that letter, NRDC et al. requested that the Commission announce within 30 days that, inter alia:
There will be no action on any proposal for handling spent fuel in a manner other than that permitted by the original license until the generic reviews have been completed and hearings pursuant to Section 189 of the Atomic Energy Act and 5 USC $ 554 with respect to each action (or to all actions generically) have been completed, except when health and safety consi-derations require removal of the entire fuel core from the reactor pressure vessel and tem-porary storage in the reactor's spent fuel pool in a configuration not specifically covered in the reactor's operating license and specifica-tions. Id, p. 6 (footnote omitted).
The Commission has concluded that there should be no such general deferral, and that these related licensing actions may continue during the period required for preparation of the generic environmental impact statement.... (40 Fed. Reg. 42801, 42802 (emphasis added))
Further, the Commission's authorization of licens- -
ing actions to ameliorate possible shortages of spent fuel storage capacity cannot be construed as limited to reactors facing " imminent shutdown." In the first place, the Notice of Intent was prepared in contemplation of the circumstance i
that "the spent fuel pools of as many as 10 reactors could be filled by mid-1978," which was then 3 years in the future.
1 40 Fed. Reg. at 42802. As Amended Contention 2 itself ;
i acknowledges, the loss of storage capacity at Zion is no !
1
- l more remote. Moreover, as of November, 1977, the owners of l 1
44 nuclear power plants at 33 sites had applied for license amendments to permit compact storage, and 20 of these appli-cations had been approved. The Commission's actions certainly do not indicate any policy to confine amendments to emergencies.
Even if this Board were free to depart from Com- l l
mission policy, which it is not, Northern States Power (Prairie Island), supra 7 NRC 41, 51 (1978), the Attorney General's suggestion that fuel pool expansion applications The contention states that "[t]he existing pool is able to accommodate normal refueling discharges until 1981...."
Actually, if the proposed application were not granted, Zion would lose full core discharge capability in 1981, with loss of refueling discharge capability following one year later.
See Draft Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0404 ES-5 (March 1978).
. l should not be entertained absent an emergency or the threat of imminent shutdown is not sound policy. First, while the Government has announced plans to receive spent. fuel from utilities, the earliest date at which interim storage facil-ities could be provided is 1983, and this date seems ques-tionable. See, e.g., Duquesne Light Company (Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 825 (1978). l Therefore, this program will not provide a timely solution I to the Zion situation. Second, it is simply not prudent planning for Edison to defer submitting a license application until an emergency situation exists, when no one can anticipate the duration of the licensing process itself. Finally, deferring an application until an emergency exists could contribute to increased labor costs and other burdens in ,
l installing the absorber racks should licensing approval be granted.
D. Contention 6.D Amended Contention 6.D states:
l There has been insufficient development of all l credible accident scenarios: 1 D. There is no discussion of credible accidents not directly caused by the proposed pool modification which could occur.during installation of the new spent fuel stor- i age racks. There is no discussion of the corrective meas-ures necessary to be taken should such accidents occur.
Examples of credible accidents include:
(1) Pool overflow; (2) Pipe breaks causing leaking or spraying of irradiated water; and (3) Accidents' involving failure of the spent fuel pool cooling systems.
This contention is inadmissible in this proceeding because it seeks to raise accident scenarios "not directly caused by the proposed pool modification" and does not establish the basis for any other nexus with " reasonable speci ficity . " 10 CFR $ 2.714(b). Accidents such as pipe breaks and failure of the spent fuel pool cooling systems were analyzed as part of the operating license review and the design of Zion Station was found to afford acceptable ;
l protection against such accidents and their consequences. l l
In granting Commonwealth Edison Company Facility Operating l l
Licenses DPR-39 and DPR-48, the Commission expressly found that:
There is reasonable assurance (i) that the activities authorized by this op-erating license can be conducted with-out endangering the health and safety of the public, and (ii) that such ac-tivities will be conducted in compli-ence with the rules and regulations of the Commission. (DPR-39 s I.C.; DPR-48 6 I.C.)
If the Attorney General now believes that this finding was incorrect or that the Commission's rules and regulations provide inadequate protection with respect to such accidents, the appropriate remedy is to petition for a modification of Applicant's operating licenses pursuant to 10 CFR S 2.206 or to petition the Commission to change its regulations pursuant to 10 CFR S 2.802.
Conceivably Contention 6.D is based on a concern that if the postulated accidents occur during the proposed modification of the spent fuel pool, the consequences will be somewhat different than those which would have occurred
l if the license amendment had not been granted. However, the
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mere fact that some tenuous causal connection might be made between a proposed licensing action and a change in the l
effects c f a hypothetical accident does not establish a l legally sufficient nexus between the two. A moment's reflec-tion will show that if this were the case, any application I 1
for a facility operating license amendment could be used as a pretext for reexamining any of the assumptions and conclu- 1 l
sions involved in the original issuance of an operating I license. Thus, in Northern States Power (Prairie Island i Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 l
(1978) the Appeal Board stated:
The issuance of operating licenses for the two Prairie Island units was preceded ,
by a full environmental review, including i Lhe consideration of alternatives. Noth-ing in NEPA or in those judicial decisions to which our attention has been directed dictates that the same ground be wholely replowed in connection with a proposed amendment to those 40-year operating lic-enses. Rather, it seems manifest to us I that all that need be undertaken is a consideration of whether the amendment itself would bring about sianificant environmental consequences beyond those p.reviously assessed and, if so, whether those consequences (to the extent unavoid-able) would be sufficient on balance to require a denial of the license application.
7 NRC 41,-46 n.4 (citations omitted, emphasis added).
This same logic is reflected in Public Service Electric & Gas Company (Salem Nuclear Generating Station, Unit 1) Dkt. No. 50-272, Memorandum and Order (April 26, 1978), in which the Licensing Board observed:
In Contention 15, Petitioners state that the Licensee has "not adequately assessed the consequences of spent fuel rods reach-ing criticality". Since the Licensee's
design for the original spent fuel pool contemplated the presence of spent fuel rods in the pool, NRC evaluation of that pool necessarily included evaluation of licensee's assessment of the consequences of those spent rods reaching criticality.
NRC issued a construction permit and an operating license after the original evalu-tion, so NRC has already acted upon the l question which this Contention raises. If the Petitioners believe there is something about the modified design which increases l 1
the chance that the fuel rods will reach
" criticality", the Petitoners should so state in their cetition so that a factual
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issue can be joined on this point. (Slip i opinion at 7; emphasis in original). j The Board dismissed eight other contentions on the same basis. Id. (Slip opinion at 7-9). See also, Id. Order j 1
Following Special Prehearing Conference (May 24, 1978) (Slip l l
opinion at 5-8). l l
In order to prevent the use of hearing time for I extraneous argument the rules require that the basis for contentions be stated with reasonable specificity. 10 CFR
$ 2.714(b). In this case, the Attorney General has failed to provide any basis for his contention that issues resolved in the operating license proceeding must be rehashed in this proceeding. Amended Contention 6.D should be struck because it is patently outside the scope of this proceeding. Northern States Power, supra, 7 NRC 41, 46 n.4.
E. Contention 16 Amended Contention 16 states:
The amendment request and supporting documentation do not include antisabo-tage and security plans; therefore there is no assurance that adequate protections have been developed.
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t This contention must be dismissed because on its face it fails to state any nexus between the proposed spent ,
fuel pool modification and the Applicant's security plan.
Absolutely no basis is set forth for believing that any changes to Applicant's security plan are necessary as a result of the proposed amendments. Applicant's security plan was reviewed and approved in the operating license proceedings. Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-226, 8 AEC 381, 411-14 (1974).
In a recent decision, the Appeal Board emphasized that "[S]ecurity Plans are indeed sensitive . . . . The Plan's " relevancy" must be demonstrated by the party seeking access to the plan." _ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2 ) ALAB-410, 5 NRC 1398, 1403-4 (1977). In Diablo Canyon, the intervenor was seeking discovery of the security plan pursuant to 10 CFR $ 2.744. The Appeal Board stated:
"In the context of a request by an inte-venor for access to a security plan, we read that provision as contemplating that only those portions of a plan which inte-venor can demonstrate are relevant to its contentions should be released to it . . .
Using the contention requirement of 10 CFR S 2.714(a) as a guide, a mere conclusory i statement of relevance will not suffice one seeking to examine a portion of a l security plan must show a relationship i between his contention and the specific '
l portions of the plan he wishes to review."
5 NRC at 1404.
It obviously would completely undercut the ruling in Diablo Canyon to admit a security contention into a licensing proceeding without a showing of relevance at least 1
,, 1 as rigorous that required for production of the security plan itself. And yet, in this case, Amended Contention 16 l I
amounts to exactly the sort of "conclusory statement of j relevance" condemned in Diablo Canyon. The Attorney General has not even attempted to show any relationship between the I proposed spent fuel pool modification and Applicant's security plan, much less provide a basis for believing that a relation- l l
ship may exist. l I
Moreover, disclosure of Applicant's security plan j is not necessary in this case to demonstrate the irrelevance of the Attorney General's contention. This irrelevance can be seen on the face of 10 CFR Part 73, which prescribes the requirements physical protection of special nuclear material (such as spent fuel) at fixed sites against acts of l
industrial sabotage and theft. Under Part 73, the spent fuel pool is considered a " vital area" which must be protected in accordance with specified requirements. See 10 CFR j 56 73.2(h); 73.2(i); 73.55. The increase of spent fuel storage capacity and the discharge of additional fuel assem-blies into the spent fuel storage pool do not change these I I
security requirements. ]
l Further, we are unaware of any spent fuel pool )
I modification proceeding in which contentions relating to an I Applicant's security plan have been admitted and litigated.
In Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2) Dkt. Nos. 50-266, 50-301, the Licensing Board reserved ruling on such a contention because the Staff 1
and Intervenor agreed that the Staff would review the security !
l
plans and indicate in writing whether in its judgment the increased spent fuel storage capacity could reasonably affect the security plans. Id. Order of the Licensing Board (September 1, 1978) (Slip opinion at 3). It was further agreed that if in the Staff's judgment the security plans were not affected, the contention would be inadmissible.
On September 27, 1978 the Staff filed a motion to dismiss and attached affidavit which stated the Staff's conclusion that the security plans were not affected by the proposed spent fuel pool modification. Id., NRC Staff Motion for Dis-missal of Lakeshore Citizens for Safe Energy Contention 4 -
Security Plans, and attached Affidavit of John S. Berggren.
In Kewaunee, the NRC Staff and the Intervenors apparently came to a similar agreement calling for Staff review. However, without waiting for the results of this review the Licensing Board dismissed the contention because Intervenors had failed to explain what relevance or effect the proposed spent fuel pool modification might have to the existing security plan, and because the contention appeared to the Board after careful consideration to lie outside the scope of that proceeding. Wisconsin Public Service Corporation, et al. (Kewaunee Nuclear Power Plant) Dkt. No. 50-305 Order j of Licensing Board (October 11, 1978) (slip opinion at 4-5).
In Lacrosse, the Licensing Board allowed the intervenor to withdraw its security contention (Contention
- 9) from the spent fuel pool modification proceeding and transfer it to the concurrent operating license proceeding, where it was obviously more appropriate. Dairyland Power
Cooperative (Lacrosse Boiling Water Reactor) Dkt. No. 50-409.
Prehearing Conference Orders (September 5, 1978) (slip opinion at 6). In Salem, the Licensing Board indicated that an intervening organization's sabotage contention was inappro-priate, absent some specification of how the proposed modifi-i cation possibly could affect the Applicant's security arrange-4 ments. (The intervening organization was subsequently l l
dismissed because it had failed to show standirg). Public Service ]
Electric & Company (Salem Nuclear Generating Sr.ition, Unit No. 1) Dkt. No. 50-272, Memorandum and Order (April 26, 1978). And in Trojan, the intervenor's contention relating to security plans was rejected repeatedly. Portland General i
Electric Company, et al. (Trojan Nuclear Plant), LBP-77-69, !
l 6 NRC 1179, 1180 n.1 (1977).
Unless the Attorney General can identify some way in which the proposed spent fuel modification may result in a violation of the security requirements set forth in Part 73, it has failed to meet its obligation to demonstrate relevance. Diablo Canyon, supra. And, of course, the adequacy of the security requirements set forth in 10 CFR Part 73 and the NRC's policy that such plans should only be disclosed on a need-to-know basis may not themselves be challenged in this proceeding. 10 CFR $ 2.758; Diablo Canyon, supra, 5 NRC at 1402; Northern States Power, supra, 7 NRC at 51.
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III' CONCLUSION For the reasons stated above, Amended Contentions 2, 6.D and 16 should be struck.
Respectfully submitted, r John W. Rowe ,
t Philip P. Steptoe III Attorneys for Applicant Commonwealth Edison Company Isham, Lincoln & Beale One First National Plaza Suite 4200 Chicago, Illinois 60603 (312) 786-7500 l
I I
l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
COMMONWEALTH EDISON COMPANY )
) Docket Nos. 50-295 (Zion Station Units 1 and 2) ) 50-304
)
Proposed Amendments to Increase )
Spent Fuel Storage Capacity )
(4 3 F.R. 30938) )
CERTIFICATE OF SERVICE I
1 I, Philip P. Steptoe, hereby certify that a copy l
of COMMONWEALTH EDISON COMPANY'S MOTION TO STRIKE CONTEN-TIONS AND SUPPORTING MEMORANDUM has been served upon the following by deposit in the United States mail, first class, i
this 9th day of November, 1978- i Edward Luton, Chairman Dr. Forrest J. Remick I Atomic Safety and Licensing 305 East Hamilton Avenue )
~
Board Panel State College, Pennsylvania 16801 U.S. Nuclear Regulatory Commission Washington, DC 20555 Susan N. Sekuler Assistant Attorney General Dr. Linda W. Little 188 West Randolph Street l
Research Triangle Institute Suite 2315 P. O. Box 12194 Chicago, Illinois 60601 Research Triangle Park, North Carolina 27709 Atomic Safety and Licensing Board Panel Docketing and Service Section U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Richard Goddard Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Philip P. Steptoe Washington, DC 20555
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