ML20244D366
| ML20244D366 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 06/09/1989 |
| From: | Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8745 OLA, NUDOCS 8906190016 | |
| Download: ML20244D366 (13) | |
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June 9, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 JJJ 12 P5:04 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of )
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Vermont Yankee Nuclear )
Power Corporation ) Docket No. 50-271-OLA
) (Spent Fuel Pool)'
(Vermont Yankee Nuclear )
Power Station) )
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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S REPLY TO NRC STAFF, VERMONT YANKEE, AND QUESTIONS OF LICENSING DOARD ON ENVIRONMENTAL CONTENTION 3 I. The EA Must Consider The Alternative of Dry Cask Storage Because There Exist Unresolved Conflicts Regarding the Alternative Uses of Available Resources.
1 In its initial brief and testimony, NECNP demonstrated the existence of a dispute regarding alternative uses of the VY spent fuel pool. Based on numerous reports prepared at NRC's request by its major contractors, NECNP. argued that use of the pool to expand the spent fuel storage capacity of Vermont Yankee was inappropriate because the reracking and addition of fuel to the pool would create a foreseeable and unacceptable risk of a zir-caloy cladding fire. Given this unresolved conflict regarding the proper use of the spent fuel pool, it is incumbent upon the ;
NRC to evaluate alternatives to the proposed action.1 i
1 It should be noted that concern about the risks of spent fuel pool expansion is not NECNP's alone. The issue has been studied by NRC and its contractors for some years. Egg the fol-lowing references to Testimony of Gordon Thompson, filed May 23, 1989: Benjamin, et al., 1979; Jo, et al., 1989; Pisano, et al.,
1984; Prassinos, et al., 1989; Sailor, et al., 1987.
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The NRC Staff identifies as "available resources" the spent fuel pool and the materials which are used in the construction of the racks, but cl' aims that alternative uses of the pool "need not be considered because the action does not involve the use of resources not previously considered" in the original 1972 environmental impact statement for VY. NRC Brief at 8. Accord-ing to the Staff, these environmental issues "have been thoroughly considered and decided in the initial proceeding."
Id.
This argument is patently absurd. The Vermont Yankee plant was originally licensed to store only 600 spent fuel assemblies.
The risks of more than quadrupling the spent fuel pool inventory, using an entirely different rack design, never entered into that analysis. None of the cases cited by NRC Staff in its brief at 8-9 supports the proposition that the NRC may rest on an original FES that was based on an entirely different set of facts, changes in which could not possibly have been anticipated by NECNP in 1972.
The Staff apparently failed to consider that the increased risk of a zircaloy cladding fire warranted close examination of alternative under 5 102 (2) (E) of NEPA, based on its classifica-tion of a cladding fire as a severe, beyond design basis acci-dent. Environmental Assessment at 11. As discussed in the attached Rebuttal Testimony of Gordon Thompson, the Staff's clas-cification is inaccurate. A zircaloy cladding fire at VY could result from a range of reasonably foreseeable accident initiators
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encompassing design basis events, beyond design basis events that are not necessarily " severe accidents", and severe core demage accidents.2 First, potential causes of a zircaloy cladding fire include cask drop, which is a. design basis event.3 Second, the proposed spent fuel expansion also poses the risk of accidents that do not qualify as " severe accidents" because they do not involve severe core damage, but which could nevertheless involve contamination of the reactor, increased worker exposures and cleanup costs, and serious offsite consequences.4 The consequences of a such a cladding fire could range from fuel damage, increased worker exposures, and contamination of the reactor building, to catastrophic contamination of a large por-tion of New England.5 Given the "potentially harmful" results of the proposed spent fuel pool expansion, the NRC is required to give alternative measures serious consideration. Bob Marshall Alliance v. Hodel., 852 F.2d 1223, 1229 (9th Cir. 1988), MzEz
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aceeal nendina (sale of oil and gas leases held to constitute I
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2 Thus, in response to the Licensing Board's first question in its Memorandum of May 25, 1989, contention 3 is not restricted to
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severe accident considerations. The Board need not defer consid-eration of whether f lO2(2)(E) has been triggered and satisfied l here until after the Appeal Board's decision on LBP-89-6. i 3 EER Thompson Rebuttal Testimony at 2-3. j 4 Id.
5 A fire severe enough to release long-lived radioactivity from the spent fuel pool to the atmosphere could also be accompanied by a core melt with its own attendant releases. How- !
ever, it should be noted that a substantial radioactive release from the spent fuel pool could occur without damage to the core. l Egg Testimony of Gordon Thompson at 9.
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" unresolved conflicts" requiringEa study of alternatives because it'" opens the door to potentially harmful post-leasing
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activity").
To the extent that NECNP's contention 3 in based on1 severe-accident considerations, it must be viewed differently under 5102 (2) (E) than under S 102 (2) (C) , upon which NECNP's Contention 1 is based. The' requirement to evaluate alternatives under 5 102 (2) (E) is " independent of, and broader than, the EIS' require-ment." Bob Marshall Alliance v. Hodel, 852 F.2d at 1229, citina
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City of New York v. United States Decartmerit of Transoortatjsm, 715 F.2d 732, 742 (2d Cir. 1983), cert. denied, 465 U.S. 1055, 104 S.Ct. 1403 (1984) ; Environmental Defense Fund v. Coros of Encineers, 492 F.2d 1123, 1135 (5th Cir. 1974); California v.
Bercland, 483 F.Supp. 465, 488 (E.D. Cal. 1980), aff'd sub, nom.
California v. Block, 690 F.2d 753 (9th Cir. 1982). Regardless of whether the impacts of a proposed action.are. considered "sig-nificant" for purposes of requiring an environmental impact statement, alternatives must nevertheless be considered under S
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102 (2 ) (E) , since NECNP has established that_there is an unresolved conflict with respect to the appropriate use of resources. State of N.C. v. Hudson, 665 F.Supp. 428, 445-46 (E.D.N.C. 1987). These considerations are independent of the issues now before the Appeal Board.
II. The Staff was Required to Take a Hard Look at the Dry Cask j Alternative. j NEPA requires a "hard look" at each alternative, even if no EIS is required. Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. j i
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1986).6 See also Irinity Eoiscocal School Coro. v. Romnev, 523 F.2d 88, 93-94 (2nd Cir. 1975), on remand,.445 F.Supp. 204 (S.D.N.Y. 1978), rev'd sub nom. Karlen v. Harris, 590 F.2d 39
, (2d Cir. 1978), rev'd. 2D other arounds ggh nom. Etrycker's Bav' Neighborhood.'Etc. v. Karlen, 444 U.S. 231, 100 S.Ct. 497 (1980)
.(NEPA's mandate to-" study, develop, and describe" encompasses a broad type of consideration, and is not. satisfied by a per-functory and conclusory statement that there are no alterna-tives).7 As demonstrated in the EA and confirmed by the Staff's brief and affidavit, the Staff's analysis of the dry cask alternative was perfunctory, with vague reference to "past licensing experi-6 In Van Abbema v. Forne11, the court agreed that no EIS Uns necessary, but vacated the grant to the Army Corps of Engineers of a permit to/ build a facility for "transloading" coal because the Corps had not considered the economics of.the alternatives
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sufficiently. The court found that the Corps had not conducted a
" reasoned" study of alternatives because it had responded in "the most superficial fashion to the challenges brought by the plaintiffs." Idz at 640, 643. Moreover, the Corps' analysis was deficient because it had not undertaken an independent effort to verify or discredit particularized objections to material on which it had relied in its review. 142 at 640. In short, the Corps had failed to meet the mandate of 5 102(2) (E) because it had not taken a "hard look" at alternatives. Idz at 642.
7 Still defending the untenable position that 5 102(2)(E) requires no consideration of alternatives, the NRC makes the remarkable claim that Trinity Episconal School was reversed by Strvcker's Bay. To the contrary, Strvcker's Bay left untouched the Second Circuit's holding that: consideration of alternatives was required in an environmental assessment. Following a later appeal of the environmental assessment, after it had been cor-rected to include a discussion of alternatives, the Supreme Court reversed the Second Circuit on different grounds.
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ence" and a generic assessment of dry cask storage.8 NRC Brief-at 10. No site-specific information was requested or analyzed for the assessment. Id. Apparently, the cursory nature'of the review was based on the Staff's belief that there was no unresolved conflict concerning available resources; otherwise, it would have asked VY to provide additional information on alterna-tives. NRC Brief at 9. By this statement, the Staff concedes that if an unresolved conflict is~found to exist here, its EA is inadequate to support its approval of the proposed alternative.
Of course, the most glaring omission from the Staff's EA is any detailed discussion of the benefits conferred by dry cask with respect to the avoidance of accident risk. In addition, the EA failed to include any meaningful comparison of the costs of the dry cask and wet storage alternatives to VY ratepayers. The EA contained no cost estimates whatsoever for dry cask, and the i
Staff's brief provides no site-specific information on the sub- j ject. ,
A rough analysis shows that the EA should have taken a "hard look" at the marginal nature of the rate increase that would be ]
incurred by implementation of the dry cask alternative. . While it ;
is the Staff's primary responsibility to provide this informa-tion,9 some insight can be gained from the figures provided by VY !
8 While the Staff cites miscellaneous discussions of various l aspects of dry cask storage in other licensing cases and in rulemakings, it apparently has performed no comprehensive generic environmental assessment of dry cask storage.
9 ggg Boston Edison Co. (Pilgrim N clear Generating Station, Unit 2), ALAB-479, 7 NRC 744, 794 (1978).
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I in its brief. VY estimates a total cost of $10.5 million for wet storage and $23.9 million for dry cask storage of thel 870 addi-tional spent fuel assemblies. According to the Vermont Depart-ment of Public Service, over the next 18 years,-the average Ver-mont customer, who pays about $500 per year for electricity, would pay only about $2.more per year for dry cask storage than for wet storage.10 III. Dry Cask Storage is Environmentally Superior to' Expanding the Capacity of the Spent Puel. Pool.
Not only is it undisputed by the parties that dry cask storage is environmentally benign, but dry cask storage.is environmentally superior to spent fuel pool expansion in a number of ways. In fact, it has been commended by the NRC Staff in its recent proposed rule. For instance, it decreases reliance on !
active cooling systems. In addition, "the potential for corro-sion of the fuel cladding and reaction with the fuel is. reduced, 10 One could also extrapolate from VY's figures the' costs of replacing the existing racks with open racks for low-density storage, and of placing approximately 1032 additional spent fuel assemblies in dry casks. (This calculation accounts for a full-core offload capability of 368 assemblies, for which no storage capacity would be required.) This would add approximately 118%
to.the $17 million price of spent fuel casks, or $20,600,000.
Assuming the costs of an open rack.to be equivalent to the i reracking costs described in the Reid Testimony at page 17' (a I total of $7,500,000, omitting the Enhanced SFPC Subsystem, which l would no longer be'necessary), the total additional cost of stor-ing 1032 assemblies and reracking with open racks would be about
$28,100,000, or an increment of about $5-6 to the average ,
ratepayer's annual bill over an.18-year period. -Thus, the total !
cost of implementing the dry cask / low density storage alternative for 2,870 assemblies would be about $7-8 per average customer, or a rate increase of less than 2%. This is still an insignificant increase in light of the safety benefits conferred.
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because an inert atmosphere is expected to be maintained inside dry spent fuel storage casks." 54 Fed. Reg. 19,379, 19,380 Col.
3 (May 5, 1989). Of course, both of these operational advantages have environmental benefits in that they result in a reduced potential for occupational exposures. In contrast, the proposed alternative of spent fuel pool expansion poses a foreseeable risk of fire in the spent fuel pool.
Neither the Staff nor VY has identified any costs which out-weigh the substantial benefits conferred by the dry cask alterna-tive.11 As discussed above, the marginal cost of the dry cask alternative to the ratepayers, who must ultimately bear the bur-11 Aside from the relatively uncertain potential under the wet storage alternative for increased occupational exposures due to malfunction of spent fuel cooling systems or fuel cladding corro-sion, total occupational exposure over the lifetime of Vermont Yankee would be approximately equal for the alternatives of dry cask storage and spent fuel reracking. Both measures require initial placement of spent fuel in the pool, storage for a number of years, and ultimate transfer to casks, either for storage or shipment offsite. If Vermont Yankee implemented the dry cask option, it would presumably transfer the oldest and most decayed spent fuel to the casks, thereby minimizing occupational exposures and maximizing the amount of fuel that could be placed in each cask. In addition, the NRC has encouraged cask vendors to design casks that will also be suitable for shipping, thereby !
eliminating the need to make an additional transfer of the fuel i for transport purposes. 54 Fed. Reg. at 19,382, Col. 1 i In its testimony, Vermont Yankee lists a number of environ-mental costs associated with dry cask storage, namely the increased use of steel, concrete, water, and land. None of these environment? costs is significant. Moreover, Vermont Yankee has not suggested, nor is it evident, that the dry cask storage facility could not be constructed within the confines of the Ver-mont Yankee site. see Thompson Rebuttal Testimony at 4-5.
den of the chosen alternative, is negligible.12 Moreover, there are a number of reasons why the Board should give little weight to the NRC Staff's and VY's claims that designing, licensing, and building a dry cask facility would involve lengthy delays. First, there is no fundamental reason why the process of designing, licensing, and installing a dry cask storage facility should take any more time than a year. Thompson Rebuttal Testimony at 5-6. Unlike many other aspects of nuclear power plant design, which typically involve the interaction of complex systems, dry cask storage is a relatively simple' technology. Id.
Moreover, as demonstrated by the recent proposed rule, the NRC is now ready to give generic approval for use of approved cask 12 VY's " sunk costs" are impermissible considerations in evaluating the comparative costs of wet and dry storage. As the Board ruled in LBP-88-18, 28 NRC 43,46 (1988):
(A)ny review of alternatives which we may be called on to undertake will be carried out on the assumption that no expenditure at all had been made with respect to any of the expansion alternatives--in other words, all expenses for purchase and installation of the new racks are at the risk of the Applicant.
The Board's action is in accord with NEPA's policy that critical agency decisions must be made after studying alternatives, not before. "Otherwise the process becomes a useless ritual, defeat-ing the purpose of NEPA, and rather making a mockery of it." Eat- ;
ural Resources Defense Council v. Callaway at 92. In National Wildlife Federation v. And rus , 440 F.Supp. 1245 (D.D.C. 1977),
for instance, defendants purchased $3.6 million of equipment for i a proposed powerplant before completing the final environmental i statement. Defendants then rejected several proposed alterna- !
tives based in part on their previous expenditure. The court enjoined further construction, stating: "If agencies are allowed to undertake major federal actions without complying with NEPA and then to compound their error by basing later decisions on their previous illegal actions, then NEPA's projections will be rendered worthless." Idz at 1255.
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-t' designs. -54 Fed. Reg. 19,379. 'EvenLif that rule were not in place at the timeLof. licensing review, individual review of a cask design should not be very time-consuming, given the~ fact that the NRC is already familiar'with-a number of designs..
According to the NRC Staff's~ responses.of March 14, 1989 to NECNP's First Set of-Interrogatories (p. 12), the NRC has com-pleted its review of at least one cask designed specifically for BWR fuel. The' design of a concrete. pad and shelter to house and possibly shield the-casks is a simple engineering task which should not be difficult-for the NRC to review. Thompson Rebuttal Testimony at 5-6.
Second,'given the NRC's accumulated experience with dry cask licer. sing, the process can be expected to speed up over time.
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Fi.1 ally, as discussed in NECNP's initial brief, the delays in this case so far have been caused in large part by the NRC's own doing. The public interest in the choice of the most environmen-i tally beneficial alternative cannot be penalized by the Staff's inexplicable delay of two years in preparing its environmental assessment.
NEPA mandates f&at the Commission'"'use all practicable ,
means' to avo.id ar:rironmental ' degradation. '" Public Service of New Hampshire v. U.S. Nucitar Reculatory Commission, 582 F.2d 77, 81 (1st Cir. 1978), cert. denied, 439 U.S. 1046. It is clear l
that, given the " environmental superiority" of the dry cask alternative and the lack of any significant costs or impediments associated with dry cask, the Applicant's proposal to expand the
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W capacity of the VY spent fuel pool must be rejected.13 Vircinia Electric and Power Co. (North Anna Nuclear Power Station, Units 1
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and 2), ALAB-584, 11 NRC 451, 458 (1980). ,
13 VY suggests that the Board may not reject-the proposed wet storage alternative unless dry cask is."obviously superior," i.e.
that the environmental preferability must be " substantial" and "certain." VY Brief at 3 and note 2. While NECNP believes that standard is met in this case, it is by no means applicable here.
The case principally relied on by VY applied the "obviously supe-rior" standard to alternative siting considerations in a con-struction permit case. Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 506, 531-36 (1977), aff'd sub. nom. New Enaland Coalition on~ Nuclear Pollu-tion v. NRC, 582 F.2d 87, 95 (1st Cir. 1978). This standard was tailored specifically to alternative site selection, where the rejection of a proposed site, late in a construction permit pro-ceeding, would require the entire abandonment of a project or a complete reapplication involving years of intensive review.
Given the absence of a site banking mechanism, the Commission stated that it could not "conscionably" impose that b6rden on private applicants and their ratepayers. 'L1 at 529. The Com-mission contrasted this limitation with its " authority to require environmentally protective measures at the particular location site proposed in the application." Id. at 530. Here, rejection of VY's application to expand.the spent fuel pool would not have.
the equivalent, dire consequ,ences of rejection of a construction permit application. As demonstrated in the Thompson testimony and rebuttal testimony, a dry cask alternative could be designed, ~
reviewed, and implemented with efficiency and speed.- Nor can it be said, as was suggested in the Seabrook case, that a thorough examination of alternatives was conducted early'in the process, thus mitigating the unfairness of heavily weighting the proposed alternative. Id. at 530, note 30. The dry cask alternative was barely considered in the EA, despite the fact that it took two years before it was issued.
The second decision cited by VY, General Public Utilities ;
(Three Mile Island Nuclear Station, Unit 2), . LBP-89-07 (February l 2, 1989), is of little precedential value because of its failure to provide any statement of reasons why application of the "obviously superior" standard was appropriate in that case.
At the very least, before applying the "obviously superior" standard to this case, the Board should engage in a careful, case-specific analysis of whether it is appropriate under the ,
circumstances, and in keeping with the broad purposes of NEPA. !
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spectfully' submitted,.
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' DianefCurran'- '
HARMON,-CURRAN-& TOUSLEY,
- 2001 "S"-. Street'N.W.. Suite',430 '
Washington,:D.C. 20009 (202) 328-3500-- ..,
June 9,:1989 4 m
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CERTIFICATE OF SERVICE I certify that on June 9, 1989, copies of the foregoing pleading were served by first class mail or overnight mail as indicated, on all parties listed below:
- Charles Bechhoefer, Chairman
- George Young, Esq.
Atomic Safety and Licensing Board Vermont Department of Public Service U.S. Nuclear Regulatory Commission 120 State Street Washington, D.C. 20555 Montpelier, VT 05602
- Gustave A. Linenberger, Jr. .
- By overnight mail i
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Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission .
Washington, D.C. 20555
- Dr. James H. Carpenter Diane Curran Atomic Safety and Licensing Board I U.S. Nuclear Regulatory Commission ]
Washington, D.C. 20555 Secretary of the Commission Attn: Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel )
U.S. Nuclear Regulatory Commission ac. .
Washington, D.C. 20555 82 @3 M
- Patricia A. Jehle, Esq. p; ._ h
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Office of General Counsel n c1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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_. tn George Dana Bisbee, Esq. 4 g Senior Assistant Attorney General a-Environmental Protection Bureau 25 Capitol Street Concord, NH 03301-6397
- R. K. Gad. III Esq.
Thomas G. Dignan, Jr., Esq. !
Ropes & Gray One International Place Boston, MA 02110 ;
I George Dean, Esq.
Commonwealth of Massachusetts Department of the Attorney General ;
One Ashburton Place Boston, MA 02108 i
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