ML20217E969

Applicant Response to State of Utah Request for Admission late-filed Amended Utah Contention V.* Recommends That State of Utah Request Should Be Denied as Untimely.With Certificate of Svc

ML20217E969
Person / Time
Site:	07200022
Issue date:	10/18/1999
From:	Silberg J AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#499-20910 ISFSI, NUDOCS 9910200140
Download: ML20217E969 (15)

Text

ry 28 00CKETED USNRC October 18,1999 UNITED STATES OF AMERICA 93 OU 19 pa a NUCLEAR REGULATORY COMMISSION OP Before the Atomic Safety and Licensing Board i

ADJL In the Matter of

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22-ISFSI

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(Private Fuel Storage Facility)

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APPLICANT'S RESPONSE TO STATE OF UTAH'S REQUEST FOR ADMISSION OF LATE-FILED AMENDED UTAH CONTENTION V Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") hereby responds to the " State of Utah's Request for Admission of Late-Filed Amended Utah Contention V,"

i filed October 4,1999 (" State's Request"). The amended contention alleges that PFS ne-glects to consider the impacts of converging many spent fuel shipments on the Wasatch Front region, as well as failing to consider the Wasatch Front impacts cumulatively with those of high population areas in Nevada. The State's Request should be denied as un-timely, both as a motion for reconsideration and as a motion to admit a late-filed conten-tion.

I.

BACKGROUND Utah Convention V, filed as one of the State's original contentions, challenged the adequacy of PFS's consideration of the transportation-related environmental impacts of the Private Fuel Storage Facility ("PFSF") in its Environmental Report. Ssg " State of Utah's Contentions on the Constmetion and Operating License Application by Private i

Fuel Storage, LLC for an Independent Spent Fuel Storage Facility" (" State's Conten-9910200140 991018 PDR ADOCK 07200022 l

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tions"), at 144-161 (November 23,1997). The contention encompassed numerous spe-cific transportation-related allegations:

.1.

Table S-4 is inappropriate because it is inapplicable to independent spent fuel storage installations PFS does not satisfy Table R-4's conditions as to enrichment, bumup, cask weight, numbers of si_.gments, and alleged backup at the Inter-modal Transfer Point ("ITP")

2.

PFS's Safety Analysis Report is inadequate to supplement Table S-4 with respect to 1

handling of casks at the ITP return of substandard or degraded casks to reactors reactors without railroad access I

3.

Table S-4 is out-of-date because it relies on a 1972 document (WASH-1238)

' does not include new information on sabotage, human error, maximum credible accidents, fuel cladding degradation, accident consequences,

- consequences of a railroad accident in Salt Lake City, criticality, RADTRAN dose calculation model, and transportation distances.

1 ist The text of the original Contention V was restated in full by the Board in Private Fuel I

l Storane. L.L.C. (Independent Spent Fuel Storage Installation), LDP-98-7,47 NRC 142, 199-201 (1998). Ssg Attachment 1. Nothing in this contention referred to or mentioned 1

the issues raised in Amended Contention V, i.e. Wasatch Front convergence and cumula-tive impacts in Nevada. 'Ihe Board admitted only that portion of the contention dealing with shipping cask weight, Admissible as to paragraph two and its supporting basis as it alleges that the weight for a loaded PFS shipping cask is 2

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outside the parameters of 10 C.F.R. Q 51.52 (Summary Ta-ble S-4).

l E at 201. The Board rejected all other aspects of the original contention, stating that the contention and its bases were:

Inadmissible as to paragraph one, the balance of the asser-tions in paragraph two, and paragraphs three and four and their supporting bases, which fail to establish with speci-4 ficity any genuine dispute; impermissibly challenge the ap-plicable Commission's regulations or rulemaking-associated generic determinations, including 10 C.F.R. QQ 51.52, 72.108, and " Environmental Survey of Transporta-tion of Radioactive Materials to and from Nuclear Power Plants," WASH-1238 (Dec.1972), as supple ~mentea, NUREG-75/038 (Supp.1 Apr.1975); lack adequate factual or expert opinion support; and/or fait properly to challenge the PFS application.

E at 200-201 (footnote and citation omitted).

The State did raise the issue of cumulative transportation impacts in its original Contention Y," Connected Actions." In Contention Y, the State asserted that The Applicant fails to adequately discuss the link between this proposal and the national high level waste program, a connected action, as is required under NEPA.

State's Contentions at 167 (footnote omitted), Et Alag LBP-98-7, spin,4^ ARC at 202.

As part of the bases supporting this contention, the State asserted that the PFSF adds significant cumulative impacts caused by transporting spent fuel across the country to Utah and then moving the fuel to wherever a final repository will be located. These impacts could be avoided by leaving the fuel onsite until a repository is ready.

State's Contentions at 168. The Board rejected this contention in full stating that it is Inadmissible in that this contention and its supporting basis fail to establish with specificity any genuine dispute; 3

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l impermissibly challenge the Commission's regulations or rulemaking-associated generic determinations, including 10 C.F.R.. (( 51.23,51.61; and/or lack adequate factual or ex-pert opinion support.

LBP-98-7, sma,47 NRC at 202 (citation omitted).

On October 4,1999, the State filed a request to the Licensing Board that " seeks the admission oflate-filed Amended Contention V" and that " seeks reconsideration of a

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1998 ruling in which the Licensing Board denied admission of the issue of the adequacy of Table S-4 of 10 C.F.R. Part 51, as relied on by the Applicant in its Environmental Re-j port ("ER"), to support the evaluation of the regional impacts of spent fuel transportation, j

including the impacts of a severe accident in Salt Lake City." State's Request at 1. The State seeks reconsideration of the 1998 ruling "in light of[the] recent determinations by the Commission in NUREG-1437, Addendum I, Generic Environmental Impact State-ment for License Renewal of imelear Plants at 3, Al-8 (August 1999)(" Final GEIS")."

- State's Request at 1-2. The text of the State's proposed Amended Contention V reads as follows:

The ER for the PFS facility fails to give adequate consid-eration to the transportation-related environmental impacts of the proposed independent spent fuel storage installation

("ISFSI") in that it relies on Table S-4, which neglects to consider the impacts of converging many spent fuel ship-ments on the Wasatch Front region, including the impact of a severe and foreseeable accident on Salt Lake City and its envimnments, and including economic as well as physical impacts. Therefore, the ER is inadequate to satisfy 10

. C.F.R. 6 72.108. The impacts on the Wasatch Front must also be considered cumulatively with the impacts on high population areas in Nevada, such as Las Vegas.

- State's Request at 2.

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ARGUMENT The State's late-filed Amended Contention V should not be admitted, first, be-cause the deadline for reconsideration has long since passed, and second, because it does not satisfy the NRC's requirements for la' e-filed contentions.

t A.

The Time to Request Reconsideration Has Passed The time to file a motion for reconsideration of the Board's rulings in LBP-98-7 has long since expired. The Board originally established a deadline of May 4,1998 for filing motions for reconsideration with respect to LBP-98-7, suma,47 NRC at 249. At the NRC Staff's request, the Board granted an extension for filing motions for recorsid-eration to May 6,1998. Order (Granting Motions to Extend Time for Filing Reconsid-

- eration Motions and Joint Status Report and to Er.ceed Page Limitations) at 2 (May 1, 1998). In fact, the State did seek reconsideration with respect to several contentions, but i

failed to do so with respect to either Contentions V or Y. Sag " State of Utah's Motion for Clarification and Reconsideration of LBP-98-7" at 6-20 (May 6,1998). Since the time to file for reconsideration of the Board's rulings in LBP-98-7 has long passed, the State's l

request for reconsideration must be denied.

B.

The State's Request to File / ' ended Contention V Is Unjustifiably Late The State must demonstrate that a balancing of the five factors set forth in 10 l

C.F.R. f 2.714(a)(1)(i)-(v) supports admission ofits late-filed contention. LBP-98-7, s.u-

- En,47 NRC at 167,207-09. The State has failed to do so and its request for the admis-sion oflate filed Amended Convention V must be denied.

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Thg_ State Lacks Good Cause.

The first and most important factor in determining the admissibility of a late-filed contention is a showing of good cause. The State lacks good cause here because the l

bases for its late-filed amended contention have been available to the State since the be-ginning of this proceeding and obviously for much longer than the period required by the j

Board for timely filing.' The State could have raised the issue of Wasatch Front conver-gence' and in fact did raise the issue of cumulative impacts with the repository in its No-vember 1997 filing of the original Contention Y.

i The crux of Amended Contention V is that PFS's Environmental Report did not consider the impacts of spent fuel shipments to the PFSF converging on the Wasatch Front Region, the impacts of a severe accident on Salt Lake City, and the impacts on the Wasatch Front cumulated with the impacts on high populations areas in Nevada.

' Sg Private Fuel Storane. L.L.C. (Independent Spent Fuel Storage Installation) LBP-99-3,49 NRC 40,47 (1999)(stating the 45 days approaches the outer boundary for timeliness).

8 in its original Convention V, the State did try to raise a " convergence" issue, but only with respect to Rowley Junction. The State asserted in Contention V that:

In an apparent effort to supplement Table S-4, the SAR contains an analysis of the im-pacts of fuel transfer at Rowley Junction. Assuming that Table S-4 even applies, this analysis is inadequate in several respects. First, PFS assumes that there will be one cask on the Rowley Jt.netion site every day. ER at 4.7 5. This assumption is unreasonable.

As discussed in Contention B, given the high volume of rail shipments involved, it is likely that bottlenecks will form at Rowley Junction, and therefore it is likely that more than one cask will be stored onsite at any given time. PFS has failed to evaluate the po-tential for bottlenecks and their impacts with respect to incioent-free handling and acci-dents. -

State's Contentions at 149-150. This aspect of the contention (both in B and V) was ruled as inadmissible by the Board since it "impermissib:y challenge [s] the Commission's regulations or rulemaking-associated generic determinations, including the provisions of 10 C.F.R. Part 71 governing transportatior, of spent fuel from reactor sites to the PFS facility," LBP-98-7,31g3g,47 NRO at 184, and " relies on rail sMpnient vol-ume, a consideration we consider insufficient to support the admission of Utah B or this contention," li at 201 n.23.

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To the extent that Utah treats this as a new issue,' it simply has supplied no J

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l grounds for good cause. The Wasatch Front convergence issue is not based upon new in-formation. It was certainly no secret at the time tLt Utah filed its original contentions that spent fuel would come to the Skull Valley site from east coast reactors by rail. There have been no new rail lines built through Utah since 1997. If there is to be a "conver-gence" of spent fuel shipments, Utah knew or should have known of that possibility in 1997.

The State argues that the Commission's recent statement that a site-specific study of cumulative transportation impacts will be included in the draft environmental impact statement for the PFSF, somehow creates good cause for its late-filed amended conten-

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tion. State's Request at 11. Ses Final Rule, Changes to Requirements for Environmental j

Review for Renewal ofNuclear Power Plant Operating Licenses,64 Fed. Reg. 48,496, 48,501 (Sept. 3,1999). The simple fact is that this statement provides no basis for a new or :m amended contention. The issue of Wasatch Front convergence was not created as a result of the Commission's statement, nor does the Commission's statement provide a ba-sis for such contention. If there were a basis for such a contention, it was there in No-vember 1997.

The original Contention V did claim that Table S-4 was inadequate because "it fails to estimate the consequences of a severe rail accident in Salt Lake City, a high 8 Ifit is considered part of the original Contention V, then Utah's complaint goes to the Board's 1998 deci-

'sion in LBP-98-7 and, as set forth above, Utah's attempt to reconsider that decision is grossly out of time.

As also noted above, the Wasatch Front convergence and cumulative impacts in Nevada issues were never

. mentioned in connection with the original Convention V. However, the cumulative i npacts issue was in-l' ciuded in the original Contention Y," Connected Actions."

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E 7.y population area." State's Contentions at 159. The Board rightly rejected this part of the original Contention V. In any case, the issue of a major rail accident happening in Salt Lake City is hardly a new one and the State has govided no basis for raising it - again -

at this late date.'

' The original Contention Y did claim that PFS failed to adequately discuss the link between the PFSF and the repository, providing as part ofits basis that PFSF " adds sig-nificant cumulative impacto caused by transporting spent fuel across the country to Utah and then moving the fuel to wherever a final repository will be located." State's Conten-tions at 167,168. The Board rightly rejected Contention Y. Among other things, such a claim challenges the NRC generic determination in 10 C.F.R. QQ 51.23 and 51.61 that "no discussion of the environmental impact of the storage of spent fuel at an ISFSI beyond the term of the license or amendment applied for is required in an environmental report submitted by an applicant fort an initial license for storage of spent fbel in an ISFSI, or any amendment thereto." 10 C.F.R. { 51.61. Nonetheless, r.s with the other aspects of the State's Amended Contention V, there is nothing new set forth by the State tojustify its extreme lateness.8 i

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• WhoDy apart from being untimely and seeking to re raise issues that the Board already rejected, this issue is no more that a frontal attack on Table S-4 and should be rejected as such. Sg 10 C.F.R. I 2.758.

8 Apart from its lateness, the last aspect of the State's Amended Contention V specifically requests that j

"[t]he impacts on the Wasatch Front must also be considered cumulatively with the impacts on high popu-lation areas in Nevada, such as Las Vegas." $g State's Request at 2.10 C.F.R. f 72.108 requires the ap-j plicant to evaluate the potential environmental impacts of transportation of spent fuel"within the region" i

of the proposed ISFSt. "[H]igh population areas in Nevada, such as Las Vegas" clearly do not fall within the regional aspect of 10 C.F.R. 6 72.108. 'Ihere is clearly no nexus between the transportation impacts as-soc' ed with PFSF and those associated with the permanent repository. Hence this contention must be dismissed.

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Nor does the State's supposedly diligent pursuit of this issue through other means somehowjustify its failure to file a timely and acceptable contention. As the Commis-sion has clearly determined, intervenors cannot simply wait to file a contention when the

- information supporjag the contention has previously been publicly availab!e.' No new information relevant to this proceeding has been presented by the Commission in its rulemaking on the license renewal GEIS. The State has an " ironclad obligation to exam-ine [on a timely basis] the publicly available documentary material...."' Here, the in-

' formation supporting the contention was not only publicly available, but has been explic-

' itly discussed for many months by the State and its expert. Its failure to fulfill this obli-gation cannot justify the admissic.. of an untimely contention.

The State therefore lacks good cause. Where good cause is lacking, a compelling

~ howing must be made on the other four factors, which the State has not done here.

s 2.

The Other Factors Do Not Justify Admission of the Late-Filed Contention

. Nor do the remaining four factors form the compelling case needed to overcome the State's total lack of good cause. While the State's interests may not be represented by another party in the PFS proceeding, it certainly has other means available to protect its interests, for example, by commenting on the drait Environmental Impact Statement that will be published for public redew and comment, and which will, as specifically stated by the Commission, address the issues of convergence and cumulative impacts. 64 Fed.

Reg. at 48,501.

• Ses Duke Power Co. (Catawba Nuclear Station, Units I and 2), CLI-83-19,17 NRC 1041,1048 (1983).

' ' Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP 83 8A.17 NRC 2 2,285 (1983).

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"And, even putting aside the expertise that the State claims for Dr. Resnikoff, ad-mission of the contention' will certainly broaden and inevitably delay this proceeding by expanding its scope to include a contention that has already been narrowed and a conten-tion that has already been dismissed by the Board.

In sum, the remaining four factors weighed together militate against granting the State's late-filed motion, and therefore clearly do not make the compelling showing re-i quired to overcome the State's lack of good cause. LBP-98-7,. sun,47 NRC at 208 (citing Commonwealth Edison Camoany (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8,23 NRC 241,244 (1986)).

III.

CONCLUSION For the foregoing reasons, Applicard respectfully requests that the Board deny Utah's request to admit its late-filed Amended Contention V.

Respectfully submitted, Am AfE.$ilberg d

Ernest L. Blake, Jr.

Paul A.Gaukler SHAW PITTMAN 2300 N Street, N.W.

Washington, DC 20037 (202) 663-8000 October 18,1999 Counsel for Private Fuel Storage L.L.C.

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e ATTACHMENT 1 Utah Contention V -Inadequate Incorporation of Transportation-Related Radiological Environmental Impacts The Environmental Report ("ER") fails to give adequate consideration to the transporta-tion-related environmental impacts of the proposed ISFSI in that:

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1. In order to comply with NEPA, PFS and the NRC Staff must evaluate all of the environmental impacts, not just regional im-pacts, associated with transportation of spent fuel to and from the proposed ISFSI, including preparation of spent fuel for transporta-tion to the ISFSI, spent fuel transfers ouring transportation to the ISFSI, transferring and returning defective casks to the originating nuclear power plant, and transfers and transportation required for the ultimate disposal of the spent fuel.

2. PFS's reliance on Table S-4 is inappropriate and inadequate. 10 l

C.F.R. { 51.52 applies only to light-water-cooled nuclear power plant construction permit applicants, not to offsite ISFSI appli-cants. Even if 10 C.F.R. { 51.52 applied, PFS does not satisfy the i

l threshold conditions for using Table S-4, and its reliance on L

NUREG-1437 is misplaced. S*nce the conditions specified in 10 C.F.R. { 51.52(a) for use of Table S-4 are not satisfied, the PFS I

must provide "a full description and detailed analysis'of the envi-ronmental effects of transportation of fuel and wastes to and from I

the reactor"in accordance with 10 C.F.R. { 51.52(b).

3. The SAR is inadequate to suppkment Table S-4 in that:

a. The Applicant fails to adequately address the intermodal i

transfer point in that the analysis utilizes unreasonable as-

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sumptions regarding rail shipment volume and its associ-1 ated effects.

b. The Applicant fails to calculate impacts of the return of substandard or degraded casks to the orig' ating nuclear m

power plant licensees, including additional radiation doses to workers and the public.

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c. The Applicant fails to address the environmental impacts of any necessary intermodal transfer required at some of the 4

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E originating nuclear power plants due to lack of rail access or inadequate crane capability.

4.. New information shows that Table S-4 grossly underestimates transportation impacts in that:

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a. ; WASH-1238, which is the basis for Table S-4, uses poor

- and outdated data, and hence the Applicant's reliance on WASH-1238 and Table S-4 is inadequate to demonstrate compliance with NEPA;-

b. WASH-1238 does not quantify the risks of spent fuel trans-portation.10 C.F.R. 6 S t.45(c) requires that, to the extent

. practicable, the cost and benefits of a proposal should be quantified;

c. WASH-1238 does not address accidents caused by human error or sabotage; i

d. WASH-1238 does not include up-to-date analyses of r.aximum credible accidents;

e. WASH-1238 does not address the potential for degradation

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of fuel ch.dding caused by dry fuel storage; f.

WASH-1238 does not address the greater release fraction from severe accident consequences demonstrated in recent analyses; g.'. WASH-1238 does not address specific regional character-istics ofimpacts on the environment from transportation and therefore is inadequate to satisfy 10 C.F.R.'Q 72.108;

h. WASH-1238 does not address circumstances and conse-

. quences of a criticality event of a representative rail trans-portation cask with a large capacity (capacity greater than a critical mass of fuel);

i. ' WASH-1238 does not contain information from the more recent and more accurate dose modeling RADTRAN com-puter program;

j. WASH-1238 does not address a representative transporta-tion distance for the shipment of spent fuel from the origi-nating nuclear power plants. WASH-1238 assumes an ap-A l

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ci proximate distance of 1000 miles. The PFS acknowledges that the distance may be more than twice that amount. ER at 4.7-3.

Private Fuel Storane. L.L.C. (Independent Spent Fuel Storage Instsilation), LBP-98-7,47 NRC 142,199_-200 (1998).

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00CKEIEO USHFC UNITED STATES OF AMERICA 99 DCT 19 P4 :22

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NUCLEAR REGULATORY COMMISSION Om O

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F ADJD?-

i Before the' Atomic Safety and Licensine Board I

In the Matter of-

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PRIVATE FUEL STORAGE L.L.C.

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Docket No. 72-22-ISFSI

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(Private Fuel Storage Facility).

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CERTIFICATE OF SERVICE I hereby certify that copies of" Applicant's Response to State of Utah's Request for Admission of Late-Filed Amended Utah Contention V" was served on the persons listed below (unless otherwise noted) by e-mail with conforming copies by U.S. mail, i

first class, postage prepaid, this 18th day of October 1999.

G. Paul Bollwerk III, Esq., Chairman Ad-Dr. Jerry R. Kline

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ministrative Judge Administrative Judge Atomic Safety and Licensing Board Panel-Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 e-mail: GPB@nrc.gav e-mail: JRK2@nrc. gov;kjerry@erols.com Dr. Peter S. Lam

• Susan F. Shankman Administrative Judge Deputy Director, Licensing & Inspection Atomic Safety and Licensing Board Panel Directorate, Spent Fuel Project Office

U.S. Nuclear Regulatory Conunission

. Office ofNuclear Material Safety &

Washington, D.C. 20555-0001 Safeguards e-mail: PSL@nrc. gov U.S. Nuclear Regulatory Commission Washington, D.C. 20555

/

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J Office of the Secretary

• Adjudicatory File U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission

' Attention: Rulemakings and Adjudications Washington, D.C. 20555-0001 Staff e-mail: hearingdocket@nrc. gov (Original and two copies) -

Catherine L. Marco, Esq.

Denise Chancellor, Esq.

Sherwin E. Turk, Esq.

Assistant Attorney General i

Office of the General Counsel Utah Attomey General's Office Mail Stop O-15 B18 160 East 300 South,5* Floor U.S. Nuclear Regulatory Commission P.O. Box 140873 Washington, D.C. 20555 Salt Lake City, Utah 84114-0873

' e-mai!: pfscase@.nrc. gov e-mail: dchancel@ state.UT.US John Paul Kennedy, Sr., Esq.

Joro Walker, Esq.

Confederated Tribes of the Goshute Land and Water Fund of the Rockies Reservation 2056 East 3300 South, Suite 1 1385 Yale Avenue Salt Lake City, UT 84109 Salt Lake City, Utah 84105 e-mail: joro61@inconnect.com e-mail: john @kennedys.org Diane Curran, Esq.

Danny Quintana, Esq.

Harmon, Curran, Spielberg &

Skull Valley Band of Goshute Indians Eisenberg, L.L.P.

Danny Quintana & Associates, P.C.

1726 M Street, N.W., Suite 600 68 South Main Street, Suite 600 Washington, D.C.- 20036 Salt Lake City, Utah 84101 e-mail: dcurran@harmoncurran.com e-mail: quintana @xmission.com

• By U.S. mail only OJ Jab. $1 berg j

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