ML20247F613

Necnp Brief & Summary of Relevant Facts & Arguments on Which Necnp Intends to Rely at Oral Argument on Environ Contention 3.*

ML20247F613
Person / Time
Site:	Vermont Yankee
Issue date:	05/23/1989
From:	Curran D HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., NEW ENGLAND COALITION ON NUCLEAR POLLUTION
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20247F591	List: ML20247F587 ML20247F613 ML20247F643
References
OLA, NUDOCS 8905300115
Download: ML20247F613 (13)

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May 23, 1989 'TC L KG !:{; I U960 '

UNITED STATES OF AMERICA a ~, NUCLEAR REGULATORY COMMISSION ,

• E9 MY 25 P3 :58 j

.BEFORE THE ATOMIC SAFETY AND LICENSING' BOARD.  :

OFF r. t L ' .j ,o 00CKOi% 6 n 1.F

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In the Matter.of )

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Vermont Yankee' Nuclear .)

Power. Corporation' ) Docket No. 50-271-OLA

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-(Vermont Yankee Nuclear ) 1 Power Station) ) l

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NEW ENGLAND COALITION ON NUCLEAR POLLUTION'S BRIEF AND

SUMMARY

OF RELEVANT FACTS AND ARGUMENTS ON WHICH-L NECNP INTENDS TO RELY AT ORAL ARGUMENT ON ENVIRONMENTAL CONTENTION 3' INTRODUCTION The Vermont Yankee Nuclear Power Corporation (" Vermont Yankee" or " Applicant") seeks the Nuclear Regulatory Commission's n . permission to increase by 378% the amount of spent fuel it was originally licensed to store there. The Applicant has already installed new storage racks for the purpose of densely packing the 2' 870 spent fuel assemblies in the pool.

In its Environmental Assessment ("EA") regarding the pro-posed license amendment, the NRC Staff gave scant consideration to alternative methods of spent fuel storage such as dry cask.

The Staff rejected the dry cask alternative out of hand, on the j l

basis that design, construction and licensing would be too time-consuming to meet the Applicant's needs, and that the pool's expansion capacity "is a resource that should be used.nl l L1 Environmental Assessment and Finding of No Significant

. Impact'By the Office of Nuclear Reactor Regulation Relating to the Spent Fusl Pool Facility Operating License No. DPR-28...",

dated July, 1989.

.8905300115 890523 PDR ADOCK 05000271 0 PDR

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As discussed below-~and in the accompanying " Testimony of h Gordon Thompson Regarding the Proposed Expansion of Capacity of L

i' the Spent Fuel Pool at the Vermont Yankee Nuclear Power Station" (Attachment 1), it is resoundingly clear _that the spent fuel pool should not be used far additional spent fuel storage at' Vermont Yankee. Given the characteristics of the racks and the dense configuration of the rods in the pool, a total or even partial loss of_ water from the' pool would almost inevitably result in an exothermic steam-zirconium or air-zirconium reaction that could lead to a release to the environment of a substantial amount of the long-lived radioactivity in the fuel. Release of the cesium alone could significantly ctataminate 19,000 square miles of land. The substantially increased accident risk posed by the reracking and fuel compaction could be totally avoided by use of low-density storage within the pool, with placement of the remainder of the spent fuel into an alternative form of on-site storage, such as dry cask storage, Moreover, the costs of achieving confidence in the safety of spent fuel storage through dry cask are very reastnable. For these reasons, the New England Coalition on Nuclear Pollution ("NECNP") asks the Licensing Board to_ find that the Staff erred in finding that the proposed rerack-ing was the preferred alternative under NEPA, to recommend the alternative of dry cask storage, and to reject Vermont Yankee's license amendment application on the ground that it is i

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inconsistent with the requirements of the National Environmental Policy Act.

Background and Procedural History On June 18, 1986, the Nuclear Regulatory Commission pub-lished a notice of no significant hazards determination regarding Vermont Yankee's application of April 25, 1986, for a license amendment increasing the storage capacity of the spent fuel pool from 2000 to 2870 assemblies. 51 Fed. Reg. 22,245. NECNP filed an objection and two suppleme.ntal responses to the NRC's no sig-nificant hazards determination.2 Among other things, NECNP argued that any proposal by NRC to permit expanded spent fuel storage at Vermont Yankee should be accompanied by an environmen-tal impact statement or environmental assessment.3 NECNP also requested a hearing on the license amendment.4 2 New England Coalition on Nuclear Pollution's Objection to Proposed Finding of No Significant Hazards Consideration, Request for Compliance with National Environmental Policy Act, and Request for Opportunity to Comment on Application to Increase 1 Spent Fuel Storage Capacity at Vermont Yankee Nuclear Power Sta-tion, dated July 21, 1986; New England Coalition on Nuclear Pol-lution's Supplemental Response to Vermont Yankee Spent Fuel Pool Expansion Request, dated September 19, 1986; and New England l Coalition on Nuclear Pollution's Second Supplemental Response to l Vermont Yankee Spent Fuel Pool Expansion Request, dated November l 19, 1986.

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l 3 New England Coalition on Nuclear Pollution's Objection to l Proposed Finding of No Significant Hazards Consideration, Request for Compliance with National Environmental Policy Act, and Request for Opportunity to Comment on Application to Increase

} Spent Fuel Storage Capacity at Vermont Yankee Nuclear Power Sta-l tion, dated July 21, 1986, at 3.

I 4 Id. at 4. .

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1 Six months later, the NRC published a new notice' stating that "[d]ue to oversight," its original notification-had failed to state, as required by 10 C.F.R. $ 2.1107, that Yankee's request falls within Section 134 of the Nuclear Waste Policy Act of 1982, permitting any interested party to request a hearing and invoke the hybrid hearing procedures described in 10 C.F.R. Part 2, Subpart K. 51 Fed. Reg. 47,324 (December 31, 1986). Upon the filing of petitions to' intervene and hybrid hearing requests from

.NECNP,-the Commonwealth of Massachusetts, and the State of Ver-mont, the Licensing' Board convened this proceeding.5 On March 30, 1987, NECNF filed a set of contentions, includ-ing Ccntention 5, which charged that the proposed amendment should be accompanied by an environmental impact statement-or assessment, and that the environmental a..alysis should consider the alternative of dry cask storage.6 The Licensing Board admitted the contention,7 but was reversed by the Appeal Board on the ground that it was premature and must await filing of the Staff's environmental assessment.8 More than two years after receiving Vermont Yankee's license amendment application, the Staff issued its environmental assess-5 Memorandum and Order, dated February 27, 1987.

6 New England Coalition on Nuclear Pollution's Response to Board Order of February 27, 1987: Statement of Contentions and Standing. Similar contentions were filed by the Commonwealth of Massachusetts and the State of Vermont. See LBP-87-17, 25 NRC 838, 852 (1987).

7 LBP-87-17, 25 NRC 838 (1987).

8 ALAB-869, 26 NRC 13 (1987).

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f ment on July 25, 1988. NECNP refiled its environmental conten-tions, including Contention 3

The NRC has failed to give adequate consideration to the alternative of dry cask storage, and has thus not complied with the provisions of the National Environ-mental Policy Act, nor of its own rules in 10 C.F.R. Part 51.

The contention was admitted by the Licensing Board in LBP-88-26, 28 NRC 440, 448-451 (1988).

ARGUMENT I. STA}iDARD FOR

SUMMARY

DISPOSITION AND BURDEN OF PROOF The purpose of the briefing and oral argument provided for in 10 C.F.R. 5 2.1113 is to dispose of any legal or undisputed factual issues and to designate factual disputes for an adjudicatory hearing.9 The regulations favor summary disposition unless a strong showing can be made that there are genuine material issues in dispute.

9 Subsection (b) of S 2.1115 provides that:

No issue of law or fact shall be designated for resolu-tion in an adjudicatory hearing unless the presiding officer determines that:

(1) There is a genuine and substantial dispute of fact which can only be resolved with sufficient accuracy by the introduction of evidence in an adjudicatory hear-ing; and (2) the decision of the Commission is likely to depend in whole or in part on the resolution of that dispute.

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i The applicant traditionally bears the burden of proof in NRC l

licensing proceedings.10 However, where applications of NEPA are l involved, the Licensing Board may not base its decision on the applicant's evidence alone; the NRC Staff carries the independent and primary burden of demonstrating that it has conducted an ade-quate analysis under the National Environmental Policy Act. Bos-ton Edison Co. (Pilgrim Nuclear Generating Station, Unit 2),

ALAB-479, 7 NRC 774, 794 (1978).11 Thus, the Board Lay not rule in favor of Vermont Yankee here, without also finding that such a ruling is supported by the Staff's environmental evaluation, and that this evaluation fully conforms with NEPA.

II. ROLE OF LICENSING BOARD IN NEPA CASES While the NRC Staff has primary responsibility for the prearation of an environmental assessment or impact statement, the Licensing Board is empowered and obligated by NRC regulations to make its own " independent" judgments regarding "the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate, action to be taken." 10 C.F.R. S 51.105 (a) (2) . The Board must also 10 See, e.a., Metropolitan Edison Co. (Three hi e Island l Nuclear Station, Unit No. 2), ALAB-697, 16 NRC 1265, 1271 (1932).

l 'Eee also 10 C.F.R. 5 2.732, Lona Island Lichtina Co. (Shoreham j Nuclear Power Station, Unit 1), LBP-87-32, 26 NRC 479, 496-97 (1987), aff'd, ALAB-900, 28 NRC 275, 296 (1988).

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L 11 As the Board held in the Pilarim case, regardless of the quality of the applicant's evidence, "it cannot be taken as a substitute for the appraisal of the staff." Id. at 794, auctina

{ Texas Utilities Generatina Company (Comanche Peak Steam Electric l Station, Units 1 and 2), ALAB-260, 1 NRC 51, 55 (1975).

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"(d]etermine, after weighing the environmental, economic, techni-cal, and other benefits against environmental and other costs,

-and-considering reasonable alternatives, whether the construction permit.or license to manufacture should be issued, denied, or appropriately conditioned to_ protect environmental values." 5 4

51.105 (a) ( 3 ) .

III. THE STAFF'S ENVIRONMENTAL ASSESSMENT VIOLATES NEPA.

A. Requirements of National Environmental Policy Act The Commission is charged, under the National Environmental Policy Act ("NEPA"), with the weighty responsibility of carrying out NEPA's far-reaching' policies, i.e., to " fulfill'the responsibilities of each generatien as trustee of the environment for succeeding generations," to " attain the widest range of bene-ficial uses of the environment without degradation....", and to

" enhance the quality of renewable resources." Consolidated

-Edison Co. of New York, (Indian Point Station, Unit No. 2), ALAB-399, S'NRC 1156, 1169 (1977). In partial fulfillment of this policy, Section 102 (2) (E) of NEPA requires that the Commissior must " study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. 5 4332(2) (E) . This section is supplemental to and more extensive in its commands than the requirement of 102 (2) (c) (iii) [ study of alterna-tives in environmental impact statements). It was intended to emphasize an important part of NEPA's theme that all change was not progress and to insist that no major _ federal project should be undertaken without intense consideration of other more ecologically sound courses of action, including shelving the entire pro-I

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i ject or of accomplishing the same result by entirely different means..

The scope of alternatives to be conside_ red includes "all appropriate methods of accomplishing the aim of the action, including those without the area of the agency's expertise and regulatory control as well as those within it." Id i, auctina L Environmental Defense Fund v. Coros of Encineers, 492 F.2d 1123, 1135 (4th Cir. 1974). Even if the impacts of the proposed action a

are considered insignificant, less harmful alternatives that are feasible must be considered. River Road Alliance v. Cores'of Encineers. 764 F.2d 445, 452 (7th Cir. 1985).12 B. The Proposal to Increase the Number of Fuel Assemblies Stored in the VY Spent Fuel Pool Involves Unresolved Conflicts Concerning Alternative Uses of Available Resources.

As this Board noted in admitting Environmental Contention 3, "Where the objective of an action 'can be achieved in one of two or more ways that will have differing impacts on the environ-ment,' the 5102 (2) (E) requirement comes into play." Vermont I

13nkee Nuclear' Power Corn. (Vermont Yankee Nuc] ear P7wer Sta-tion), LBP-88-26, 2b NRC 440, 449 (1988) [ citations omitted]. In this case, Vermont Yankee's objective of obtaining additional spent fuel storage capacity could as well be achieved by dry cask storage as by increasing the capacity of the spent fuel pool.

.Moreover, the proposed reracking and dens ifi cat i on of spent fuel

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in the pool create a significant risk of a zircaloy cladding fire 1

12 See also Viroinia Electric Power Co. (North Anna Power Sta-tion, Units 1 and 2), LBP-85-34, 22 NRC 481, 490 (1985).

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that would result in extensive contamination of the environ- '

ment.13 See Thompson Testimony at 8-9. The appropriate use of  ;

1 the spent fuel pool is for low-density fuel storage,'with place-  !

ment of the remainder of the spent fuel in dry casks. Id. at 11-

12. This solution would completely eliminate the risks posed by high-density storage in the spent fuel pool. Id.

C. The Staff Violated NEPA By Failing to Give Adequate Consideration to the Alternative of Dry Cask Storage.

In its discussion of alternatives to reracking, the Staff gave only passing mention to the alternative of dry cask storage, rejecting that option on the grounds that it would require "new site specific design and construction, including equipment for the transfer of spent fuel," as well as NRC licensing review.

The Staff concluded that [t]here is little likelihood that this effort could be completed in time to meet the need for additional capacity..." EA at 4.

In preparing its EA, the Staff "did not perform a site-specific evaluation of a dry cask independent spent fuel storage installation alternative with respect to the Vermont Yankee proposal "14 .por did the Staff perform any generic assessments of I 13 As has been discussed extensively in connection with NECNP's Environmental Contention 2, NECNP considers that this risk war-rants the preparation of an environmental impact statement.

Alternatives to the proposed action must also be considered in an EIS, pursuant to 5 102 (2) (C) of NEPA.

14 NRC Staff Response to NECNP's First Set of Interrogatories and Request for the Production of Documents to the NRC Staff on the Staff's Environmental Assessment, dated December 8, 1988, at 2.

L dry cask storage. EA at 4. Rather, the Staff's evaluation was .;

based on a generic environmental assessment of expanded spent

. fuel-pool storage. Id . - Thus, the EA is supported by no docu- f mented' eval'uation of the comparative benefits of dry cask storage.

The EA contains no discur-ion whatsoever as to whether the dry cask alternative is prefc1 ale to expanded wet storage. In failing to do so, the Staff appears to rely on the conclusion ,

that wet storage has.an insignificant impact. EA at 4. As dis-cussed in note 13, suora, NECNP strongly disputes that conclu-2 l

sion. In any event, however, the alleged insignificance of the impacts of Vermont Yankee's proposal does not excuse the NRC from  !

i the obligation to determine whether there exist environmentally preferable alternatives and to give them serious and thorough  ;

consideration. River Road Alliance v. Corps of Enaineers, suora, l'

764 F.2d at 452.

D. The Staff Erred When it Failed to Recommend the Dry Cask Alternative.

i In another reracking case, the Appeal Board held that in 1~

l order to reject the applicant's proposal it would have to be I determined both that "(1) at least ane of the. alternatives was  ;

environmentally superior; and (2) that environmental superiority' was not outweighed by other considerations such as comparative i

cost." .Vircinia Electric and Power Co. (North Anna Nuclear Power i Station, Units 1 and 2), ALAB-584, 11 NRC 451, 458 (1980). ]

1 As demonstrated in the Thompson affidavit, dry cask storage

'1 is-unquestionably an environmentally preferable alternative to

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expansion of wet storage in the spent fuel pool. The character-listics of the new racks and.the increased density of the rods in.

the pool render the spent fuel assemblies extr'emely vulnerable to fire in the event of a partial or total loss of water from the

[ pool. The cesium likely to be released as a result of such a

-fire could significantly contaminate 19,000 square miles of land,

with concomitant health effects and damage to the environment.

The substantially increased accident risk posed by reracking and compacting an increased number of fuel rods in the pool could be totally avoided by use of low-density storage within the pool, with placement of the' remainder of the spent fuel into an alternative form of on-site storage, such as dry cask storage.

The NRC itself has recognized the advantages of dry cask storage

-in its recent proposed rule, which encourages the implementation-of dry cask through immediate licensing of dry cask storage.15 Moreover, in light of the potential health damage and cleanup costs resulting from a spent fuel pool fire affecting a o

large portion of New England, the costs of dry cask storage (estimated by Vermont Yankee at $19-22 million for cask storage equivalent to the proposed capacity increase of the pool) a rca "not out of proportion to the environmental advantages to be M gained." ALAB-584, supra, 11 NRC at 456.

n Finally, as noted in the Thompson affidavit at 10, there is no fundamental reason for extended delay in the licensing of dry f

'15 See Proposed Rule: " Storage of Spent Nuclear Fuel in NRO-Approved Storage; Casks at Nuclear Power Reactor Sites," 54 Fed.

Reg. 19,379, 19,380, Col. 3 (May 5, 1989), attachment 2.

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i cask storage, which is a relatively simple technology. The NRC is also in the process of simplifying the process of dry cask storage approval, and ha~s recently proposed to issue generically a " general license" that would allow licensees to store spent fuel in certified dry casks upon completion of a discrete set of submittals.16 In any event, the Staff should not be permitted to discount an environmentally preferable alternative for timing reasons alone, when the delay was caused in large part by the Staff's own neglect. The Staff should have been aware from the time that Vermont Yankee's application was filed -- the spring of 1986 --

that et t minimum, an environmental assessment would be required to support this project. Interveners also repeatedly insisted that this requirement must be met. Nevertheless, it took the-

, Staff over two years to prepare the EA. Moreover, that time was not taken up with any extensive site-specific or even generic study -- in fact, the Staff relied only on a generic environmen-tal asGessment prepared in 1979,17 augmented only by a general reference to its experience with licensing of dry cask storage.

Had the Staff prepared its EA in a tinely manner and given the dry cask alternative the consideration it deserved, licerising of dry cask storage might be well underway now.

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16 See Attachment 2.

( 17 NUREG-0575, " Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel,"

Volumes 1, 2, and 3.

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- n CONCLUSION In preparing its environmental assessment regarding spent fuel ~ storage expansion at Vermont Yankee, the NRC Staff virtually ignored the environmentally preferable alternative of dry. cask.

L storage, and rejected it on the sole ground that its implementa-tion would be too time-consuming. Had the Staff given the dry cask alternative the timely, serious consideration that it deserved, it would have concluded, as the Board must conclude here, that dry cask storage is an environmentally preferable alternative whose costs are well justified in light of its environmental and safety benefits. For these reasons, the Board should find that the Staff's environmental assessment fails to comply with the. requirements of NEPA, reject Vermont Yankee's application to expand the capacity of its spent fuel pool, and-recommend implementation of the dry cask storage alternative.

Respectfully submitted,

S .

M --  ;

lane Curran A HARMON, CUR 7'AN & TOUSLEY 2001 "S" Street N.W. Suite 430

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