ML20209F204
| ML20209F204 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 07/08/1985 |
| From: | Jay Dougherty CONCERNED CITIZENS OF LOUISA COUNTY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20209F008 | List: |
| References | |
| OLA-1, NUDOCS 8507120412 | |
| Download: ML20209F204 (12) | |
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CCLC, 7/8/85 UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION- ,
Before the Atomic Safety and Licensing Board
-)
)_ Docket.Nos.
- In the Matter of ) 50-338 OLA-1
) 50-339 OLA-1 VIRGINIA' ELECTRIC AND POWER CO. -) BOLNETED-
.) USNRC (North Anna Power Station, -)
Units 1 and 2) g.
)
0FFICE OF SECittIAFv 00CKETING & SERVICf.
CONCERNED CITIZENS OF i,0UISA COUNTY'S ' BRANCH e PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 1/
IPFF-1. . In this proceeding we consider an applica tion- by the Virginia Electric and Power Co m pa ny (" the Licensee") for an amendment to its operating license for the North Anna Power Station, Units 1 and 2, tha t would, in ef fect,2/ authorize the Licensee to ship 500 spent. nuclear fuel assemblies from its Surry Power Station to the North Anna Sta tion.
IPFF-2. On October 22, 1982, the Concerned Citizens of Louisa County (" Concerned Citizens" or "In tervenor") sought leave to lf For convenience, the Licensee's proposed findings of fact are referred to herein as "LPFF- . Intervenor CCLC's proposed. findings of fac t are referred to as "IPFF- .
Similarly, proposed conclusions of law are referred to as "LPCL-2f The Licensee's opera ting license for Surry now authorizes it to ship spent fuel to an authorized recipient thereof. The license amendmen t a t issue in this proceeding would auth-orize the Licensee to receive and store Surry spent fuel at North Anna, authority that it now lacks.
g7120412850708 g ADOCM 05000338:
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i intervene in the proceeding. On October 15, 1984, this Licensing Board ("the Boacd") admitted Concerned Citizens as a party. On the same date the Board admitted as the sole contention in this proceeding the following Consolidated contention 1:
The S ta f f's Environmen tal Assessmen t is inadequa te and an Environ men ta l Impac t S ta te men t should be prepared. The bases for this contention are two-fold. First, the Environ-men tal Assessment, in relying - upon the inapplicable values in Table S-4, did not evalua te the probabilities and con-sequences of accidents occurring during the transpor ta tion of spent fuel casks from the Surry Station to the Noth Anna Station or which might be occasioned by acts of sabotage or by error of Applicant's employees in preparing the casks for shipment. Second, con trary to the Na tional Environmen tal Policy Act, 42 U.S.C. 4332(2)(E), conside ra tion was not given to the alternative method of constructing a dry cask storage facility at the Surry Station which is feasible, can be ef fected in a timely manner, is the least expensive and safest me thod for a t least 50 years, and can be used on or offsite.
IPFF-3. On January 7, 1985 the Board granted the Licensee's and the S taf f's mo tions for partial summary disposition regarding Table S-4, and revised Consolidated Contention 1 to read as follows:
The S ta f f's Environmen tal Assessmen t is inadequa te and an Environ men tal Impact S ta tement should be prepared. The bases for this contention are two-fold. First, the Environ-men tal Assessment did not evalua te the probabilities and consequences of accidents occurring during the transporta-tion of spent fuel casks from the Surry Station to the Noth Anna Sta tion or which might be occasioned by acts of sabo-tage or by error of Applicant's employees in preparing the casks for shipment. Second, contrary to the Na tional Envi-ron me n tal Policy Act, 42 U.S.C. '433 2( 2 )(E), consideration was not given to the alternative method of constructing a dry cask storage facility at the Surry S ta tion which is feasible, can be of fected in a timely manner, is the least expensive and safest me thod for a t least 50 years, and can be used on or offsite.
This contention involves three subjects: whether the Nuclear Regula tory Commission ("NRC") S ta f f ("S ta f f") adequa tely eval-
ua ted and considered (1) the risks of sabotage attacks against spent fuel shipments, (2) the risks of human error in cask prep-ara tion, and (3) the feasibility, cost,-availability, and envi-ror. mental ef fects of the dry cask storage alternative.
IPFF-4. An eviden tiary hearing was held in Charlottesville, Virginia on May 21 and 22, 1985. l A. The Dry Cask Storage Al terna tive IPPF-5. The Concerned Citizens assert tha t the S taf f has vio-lated section 102(2)(E) of the Na tional Environmental Policy Act
("N EP A") , 42 U.S.C. $ 4332(2)(E), by failing to give adequa te consideration to an alternative way of addressing the Licensee's spent fuel storage problem: construction of a " dry cask storage facility" a t its Surry station. We agree.
IPFF-6. " Dry cask storage" of spent nuclear fuel involves the pla ce men t of spent fuel assemblies in "ca sk s." Unlike pool storage of spent fuel, cask storage involves no wa ter - the casks themselves, which weigh several tens of tons each, provide ade-qua te radiation shielding, heat dissipa tion, and protection from external stresses. See generally Staf f Ex. 3.
IPPF-7. The parties are in disagreement as to the legal founda-tion for the Concerned Citizens' dry cask storage con ten tion.
Clearly, $ 102(2)(E)'s requirement for an examination of alterna-tives comes into play in cases where a proposed action does not trigger NEPA's EIS requirement - because the action will not have significant environmental im pa c ts. Just as clearly, $ 102(2)(E) e
0-does not apply to every action taken by administrative agencies, to wit, the issuance of this Initial Decision. The issues, then, are w here - along the continuum of insignificant environ men tal impacts -
$ 102(2)(E)'s application is triggered; and where, along the same continuum, the proposed Surry-to-North Anna trans-shipment proposal belongs.
IPFF-8. The concerned citizens claim tha t $ 102(2)(E) applies wherever a proposed action will involve "some" environmen tal effects. Therefore, they argue, because the proposed transship-ment will undeniably involve "some" environmental impacts and human health risks, 102(2)(E) applies to this case. While the Concerned Citizens' inability to a r ticula te precise legal stan-dards may be understandable, their formulation is not particularly helpful to the Board.
The Licensee, on the other hand, argues tha t $ 102(2)(E) is inapplicable because the proposed transshipment will entail only a " miniscule" use of resources. But the Licensee has not shown why " miniscule" represents the environmental threshold beyond which $ 102(2)(E)'s requirements are triggered.
, IPFF-9. We reject the pa r tie s' implied invitation to join the m in this intensely academic exploration of the realm of insignifi-can t environmen tal impacts. We note tha t the issue has badly split the Appeal Board in previous cases. Compare Consumers Power Co. (Big Rock Poin t Nuclear Plan t), ALAB-636, 13 NRC 312, i 332 n .41 (1981) with Portland General Electric Co. (Trojan Nuclear Plant), ALAD-531, 9 NRC 263, 266 (1979). We are per-suaded, however, by a federal court opinion in one of the few
cases to examine lO2(2)(E)'s require me n ts in the context of spent fuel transpor ta tion. In City of New York v. Department of Tra n spo r ta tion , 715 F.2d 732, 742 (2d Cir. 1983) considered a litigant's claim tha t $ 102(2)(E)'s requiremen ts were triggered by a Department of Transportation regulation ("IIM-164") governing the highway transportation of spent fuel. The court noted that $
102 ( 2 )( E) should be interpreted expansively to apply to spen t fuel transpor ta tion :
Section lO2(2)(E) of NEPA obliges agencies to " study, develop, and describe appropria te alternatives to recom-mended courses of action in any proposal which involves unresolved conflicts concerning al terna tive uses of avail-able resources." The Secretary [of Transportation] suggests preliminarily that IIM- 164 does not even encounter this re-quirement because it does not propose a "use of a " resource" within the meaning of section 102(2)(E). This Court, how-ever, has not construed section 102(2)(E) narrowly to apply only to agency actions that propose an identifiable use of a limited resource like park land or fresh water. Instead, we have ruled tha t federal agencies have a duty under NEPA to study alterna tives to any actions tha t have an impact on the environment, even if the impact is not significant enough to require a full-scale EIS.
IIM -164 is an agency action with some im pa c t on the environment. The rule establishes the manner in which high-ly toxic substances will be moved around the country. Even apart f rom the risk of a possible accident, the permitted transportation will cause some contribution to the amount of low-level radia tion on the intersta te highway system. Under the standards developed in [past decisions], we conclude t ha t IIM -164 has sufficient impact on the environment to require DOT to consider alterna tives to the ac tion.( ci ta-tions and foo tno te o m i t ted ) .
IPFF-10. The proposed action at issue in this case, unlike tha t in City of New York, supra does entail the use of resources. The transshipment of Surry spent fuel to North Anna will necessarily involve the use of money, personnel, equipment, and e ne rg y.
Moreover, it will have the offect reducing the available storage
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space a t North Anna, which can arguably be deemed a resource.
See Tr. a t 259. For that matter, the use of public highways for transporting the spent fuel is arguably the use of a resource for purposes of $ 102(2)(E). See City of New York, 715 F.2d a t 742
- n. 9. Accordingly, we rule tha t { lO2(2)(E) does apply to the S ta f f's consideration of the Licensee's requested license amend-ment.
IPFF-ll. As it relates to dry cask storage the concerned Citi-zens' contention dif fers from the typical "al te rna tives" conton-tion, where an intervenor attempts to boost some environmentally preferable course of action and the licensee and the S ta f f a rg ue tha t the alternative makes no sense. tie r e , the Licensee has itself requested f rom the NRC authority to undertake the very course of ac tion tha t has been advoca ted by the concerned Citi-e-
zons. And the S ta f f has de termined, on the record, that this course of ac tion does make sense. See S ta f f Ex. 3. On October 8, 1982 the Licensee applied to the NRC for a license under .10 C.F.R. Part 72 to construct and operate a dry cask storage facil-ity a t the surry sta tion. The facility is to consist of a con-crete pad and security facilities, to be built by the Licensee, and dry storage casks, to be acquired from licensed cask vendors.
Testimony of Marvin L. Smith (I), f f. Tr. a t 247, a t 7.
IPFF-12. From an economic point of view, dry cask storage appears to be no less attractive an alterna tive than transship-ment. The Licensee's witness on this issue testified tha t the cost of the dry cask storage option would probably fall within the range of $11 to 18 million. Tr. a t 2 68-69. 1le no ted tha t i
I' the cost of _ttansshipment would probably fall in the range of $8 to 22 million.
IPFF-13. From an environmental point of view, dry cask storage appears to be no less a ttractive, and is perhaps slightly more a ttrac tive than transshipment. None of the testimony received at the~ hearing suggested that dry cask storage was environmentally inferior to transshipment. And the Board is willing to take notice of the fact that to the extent that transshipment may entail some risk, albeit insignifican t, to the residents of the communities through which the shipments will pass, those risks will be avoided if the dry cask alternative is adopted. Further, the environmental assessment prepared by the Staf f concerning the Licensee's application for a dry cask storage license notes tha t a transshipment may be somewha t inferior to dry cask storage in tha t the former "does not mee t VEPCO's extended spent fuel stor-age needs." S ta f f Ex. 3 a t 9.
IPFF-14. Although the capacity of the spen t fuel storage pool a t Surry will not be e x ha us ted un til some time in 1988, the Licensee deems it impor ta n t to maintain " full core reserve" - the availability of suf ficient storage space in the Surry pool to be able to discharge 157 assemblies ( i .e . , an entire core) to the pool. Smith (I) f f. Tr. 247 at 3-4. Therefore, the Licensoo seeks authority to ship Surry spent fuel to North Anna before the available storage ca paci ty a t Surry drops below 157 assomblies.
Id.
IPFF-15. W hile we agroo tha t maintaince of full core reserve is l
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a prudent management objective, we note that such a reserve
-capability is not necessary for the protection of the public health and. safety. Ra ther, it protects the economic interests of the Licensee in the even t tha t it were to become necessary to.
discharge an entire core a t Surry. Tr. at 258-59. In light of this, we would not find the loss of full core reserve for a short period .- say, a few weeks or months to be intolerable if the result were to obviate otherwise needless public exposure to the risks of transshipment.
.IPFF-16. In order to avoid the loss of full core reserve at Surry at the next scheduled refueling m July 5, 1986, the Licen-see must come up with some way of removing 57 assemblies before tha t da te. Id.
IPFF-17. There is support in the record for the conclusion that the Licensee's plan to construct a dry cask storage facility a t Surry is suf ficiently advanced that it can be implemented in time
.to prevent the loss of full core reserve and thus avoid the need for transshipment. The licensee has ordered five dry storage casks for use a t the proposed Surry dry cask facility. Deliv-eries of these casks will begin in November of 1985 and should con tinue a t a pace in excess of the ra te of discharges of spent fuel from the Surry units. Tr. a t 254-5 5. If the pace of the Licensee dry cask storage application continues on schedule, the facility will be operational April of 1986, three months before the threatened loss of full core reserve. Tr. at 256.
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IPFF-18. In addition, the Licensee has entered into a coopera-tive agreement with the Department of Energy pursuant to which the Licensee will ship 69 assemblies to a DOE facility in Idaho.
This program is expected by the Licensee to be completed in December of 1985, seven months before the threatened loss of full core reserve. Smith (I) f f. Tr. 247 a t 10.
IPFF-19. As explained above, NEPA $ 102(2)(E) required the S ta f f to examine the dry cask storage alternative in detail.
Ilo w e ve r , the required analysis has never been performed. The environmental assessment prepared by the Staf f, denomina ted Staf f Exhibit #1, contains no discussion of alterna tives at all, not to mention the alternative of relying on dry cask storage technology at Surry. And in the Sta f f's pre-filed testimony witness Roberts was asked for the Sta f f's view of the dry cask alternative. His response, in pertinent part, was "I cannot give a definitive answer; I could only specula te." Testimony of William R. La hs, Jr., e t al., ff. Tr. 346, at 21.
The Board trusts tha t the Staf f does not rely on this sta te-ment as the full discussion and development of alternatives tha t is required by NEPA. Evidently the S taf f relied on its assump-tion that a review of alterna tives was not required by $ ,
10 2( 2 )( E) . This was more than a tactical error on the S ta f f's part. Indeed, it was con trary to the require men ts of the Act.
For this reason the environmental assessment must be remanded to the Sta f f for supplomonta tion regarding dry cask storage.
IPPF-20. We note tha t the S ta f f, a t the Board's urging, moved in to evidence an environmen tal assessmen t that it prepared in
April of 1985 concerning the Licensee's applica tion for authority to construc t and opera te the Surry dry cask storage facility.
S ta f f Ex. 3. This document does contain much analysis of this alternative to transshipment. Un f or tuna tely, however, this docu-ment does not satisfy the Sta f f's NEPA obliga tions in, this case.
We assume that with respect to virtually any alterna tive proposed by an intervenor in a licensing proceeding, there exists some docu men tary evidence regarding that al te rna tive somewhere within the archives of the NRC. However, NEPA does not permit the NRC, or any other agency, simply to point to some o the r document, produced in a dif f eren t con text, as evidence tha t it has considered alterna tives. Ra ther, the Act requires tha t a discussion of alternatives to a given proposal be included within the environmental assessment of the same, and not some other, proposal. Only in this way can it be assured tha t a comple te environmen tal review has been presen ted to the S ta f f of ficials who will pass on the transshipment proposal. For all we know, opera ting licensing amendmen ts involving transshipment may be reviewed by Staf f of ficials wholly separa te from thos:e who review dry cask storage applica tions under 10 C.F.R. Part 12. By intro-ducing the Surry dry cask environmental assessment into the record in this case, counsel for the S ta f f has provided this Board with informa tion regarding alterna tives, but it has not s ho wn that the S ta f f officials reviewing the transshipment pro-posal have soon tha t documen t, or that they have given good faith consideration to the dry cask alterna tive as required by NEPA.
, ou 11 -
Respectfully submitted, M s pyhea E D6u/fhertyy 66unsel for Concerned Citizens of Louisa' County 3045 Porter St. NW Washington DC 20008 (202) 362-7158
UNITED STATES OF At1 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
) 00(.KETE0 In the Matter of USNRC
)
) Docket Nos.
VIRGINIA ELECTRIC AND POWER CO. ) 50-338 OLA-1
) 50-339 OLA-1 '85 JJL II P3:34 (North Anna Power Station, )
Units 1 and 2) ) 0FFICE OF SELnt. i Ar 7
) 00CKEllNG & SERVif f BRANCH
)
CERTIFICATE OF SERVICE I certify that copies of the foregoing CONCERNED CITIZENS OF LOUISA COUNTY'S POST-IIEARING BRIEF and CONCERNED CITIZENS OF LOUISA COUNTY'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW were served, this 8 th day of July, 1985 by deposit in the United Sta tes Mail, First Class, upon the following:
Secre ta ry Sheldon J. Wolfe, Chairman U.S. Nuclear Regula tory Comm'n Atomic Safety & Licensing Board Washington DC 20555 U.S. Nuclear Regulatory Comm'n Washington DC 20555 Dr. Jerry Kline Atomic Safety and Dr. George A. Ferguson Licensing Board School of Engineering U.S. Nuclear Regula tory Comm'n !!oward University Washington DC 20555 2300 5th Stree t, NW Washington DC 20059 Ilenry J. McGurren, Esq.
U.S. Nuclear Regula tory Comm'n Washington DC 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comm'n Atomic Safe ty and Washington DC 20555 Licensing Appeal Board U.S. Nuclear Regulatory Comm'n Michael W. Maupin, Esq. Washington DC 20555 Ilunton & Williams P.O. Box 1535 Richmond VA 23212
\ h J me s B.' Dotrg he r