ML18085A840

Brief Supporting ASLB 801027 Decision Authorizing OL Amend to Permit Storage of 1,170 Spent Fuel Elements in Facility Spent Fuel Pool.All Exceptions Should Be Denied.Aslb Has Adequately Weighed Evidence.Certificate of Svc Encl

ML18085A840
Person / Time
Site:	Salem
Issue date:	02/17/1981
From:	Fryling R, Wetterhahn M CONNER, MOORE & CORBER, PUBLIC SERVICE CO. OF NEW HAMPSHIRE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8102190675
Download: ML18085A840 (71)

Text

• ' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board Administrative Judges Christine N. Kohl, Chairman Dr. W. Reed Johnson Thomas S. Moore In the Matter of )

)

PUBLIC SERVICE ELECTRIC AND GAS ) Docket No. 50-272 COMPANY, et al. ) (Proposed Issuance of

) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70)

LICENSEE'S RESPONSE TO THE BRIEFS IN SUPPORT OF EXCEPTIONS OF LOWER ALLOWAYS CREEK TOWNSHIP AND MR. AND MRS. ALFRED C. COLEMAN, JR .

.~

Mark J. Wetterhahn, Esq.

Conner & Moore

't~~~

-- . c.1 ...-:;:

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Counsel for the Licensee 1--

~l, *'

Public Service Electric and

_G Ga~ Company, et al.

Of Counsel:

Richard Fryling, Jr., Esq.

Public Service Electric and Gas Company 80 Park Plaza Newark, New Jersey 07101 DOCKETED USNRC 9

FEB t 8 1981

• February 17, 1981 Office of tfle ~ .,n Dcckttina aService . *,1;,

Brindt

~

.8 1 0 2 1' 9 0 '415

TABLE OF CONTENTS

• Introduction Statement of Facts.

Standard of Review.

1 2

5 LACT Exceptions 10 Exception 1 . 10 Exceptions 2, 3 and 4 . 19 The "Gross Loss of Water" Is a Class 9 Accident. 24 Exception 5 . . . . . . . . . . . . . . . 28 Exceptions of Mr. and Mrs.

Alfred c. Coleman, Jr. . . . . 36 General . . . . . . . . . . . . .

. . . 36 Findings of Fact . . . . . . 38

• Section I Section II . . . . . . . . . . .

Section III . . .

38 39 42 Section IV 43 Section V 46 Section VI . . 46 Section VII . . . 49 Section VIII . 51 Section IX . . 51 Section X 53 Section XI . . 54

-* i

• Exceptions Exceptions 1, 2, 3, 8, 9 and 12 .

• 57 57 Exception 4 58 Exception 5 58

' Exception 6 60 Exception 7 60 Exception 10 61 Exception 11. 61 Colemans' Conclusions of Law 62 Conclusion *

• 64 STATUTES CITED Administrative P_rocedure Act,.* 5 U.S.C.

§701, et seq. . ............ . 5 National Environmental Policy Act of 1969, 28, 29 42 u.s.c. §4321, et seq . . . . * . * . . . 30, 32 34, 63

• ii

TABLE OF CASES CITED

• Cine Forty-Second Street Theatre Corp.

v. Allied Artists Pictures Corp., 602 F.2d 1062 (2d Cir. 1979) . . . . *. . .**.. 10 Kung v. Fem Investment Corp., 563 F.2d 1316 9th Cir. 1977} . . . . . * . *

• 10 Link v. Wabash R.R. Co., 370 U.S. 626

( 19 6 2) . . . ; . .. . . * . . 9 NRDC v. United States Nuclear Regulatory Commission, 547 F.2d 633 (D.C. Cir. 1976),

rev'd, 435 U.S. 519 (1978} . . . . . . . . . 34 Perrignon v. Bergen Brunswig Corp., 77 F.R.D.

455 (N.D. Cal. 1978) . . . . . . . . . . 10 Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, cert. denied, 49 U.S.L.W.

3487 (January 13, 198lr;-T5 ERC 1406 (text of dissent) * * . . . * * . . . . . . . . . . . 34 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) . . * . . . . * * . . * . 34 COMMISSION ISSUANCES CITED Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), CLI-80-25, 11 NRC 781 (1980) . . . . . . . . * . . . . . . 29 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 5 0 3 ( 19 7 8) . . . * . * . * * . . * .

• 34 ALAB ISSUANCES CITED Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC (October 2, 5, 7 1980) . . . . . . . . . . . . . . . . . . . . 30 Dairyland Power Cooperative (La Crosse Boiling Water Reactor), ALAB-614, 12 NRC 347 (1980)

• 40

• iii

ALAB ISSUANCES CITED

• Detroit Edison Company '(Enrico Fermi Atomic Plant, Unit 2) , ALAB.:..469, 7 NRC 4 70 *

(1978) . . . . . . .....*.....*

Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 9

(1976) . . . . . . . . . . . . . . . . . . 7 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAH-280, 2 NRC 3 (1976) . . . * . * * . * * * . . * *

• 18 Iowa Electric Light & Power Company (Duane Arnold Energy Center), ALAB-108, 6 AEC 195 (1973) . . . . . . . . . . . . . . . . . . 46 Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-411, 5 NRC 1412 (1977) . . . . * . . . . . . . . 44 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-140, 6 AEC 5 7 5 ( 19 7 3) . . . . . . . . . . . 9

• Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-I), ALAB-224, 8 AEC 244 (1974) .......*.....

Northern States Power Company (Prairie Island 40*

Nuclear Generating Plant, Units 1 and 2),

ALAB-104, 6 AEC 179 (1973) *....***** 8 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-244, 8 AEC 857 (1974) .....*.... 19 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-275, 1 NRC 523 (1975) ...*..**.. 15 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-284, 2 NRC 197 (1975) ....*.**.* 15 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-504, 8 NRC 406 (1978) *..*.... 7,. 8

• iv

ALAB ISSUANCES CITED Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263 (1979) ..*.**..**.** . 29, 33 Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974) * . 31, 32 Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2),

ALAB-573, 10 NRC 775 (1979) 6 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit No.

1), ALAB-588, 11 NRC 533 (1980) * * . * . . .

• 4, 25 Tennessee Valley Authority (Hartsville Nucler Plant, Uni ts lA, 2A, lB and 2B) ,

ALAB-463, 7 NRC 341 (1978) .... 18 Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),

ALAB-555, 10 NRC 23 (1979) .......*. 44 Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), 31, 32 ALAB-584, 11. NRC 451 (1980) . . * * * . . .

• 35

• LICENSING BOARD ISSUANCES CITED Consumers Power Company (Big Rock Nuclear Plant), LBP-80-25, 12 NRC 355 (1980) . * *

• 29 Dairyland Power Cooperative (La*crosse Boiling Water Reactor), LBP-80-2, 11 NRC 44 (1980) * . . * * * * * . * * * . . * * . 29 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit No.

1), LBP-79-14, 9 NRC 557 (April 30, 1979) . . 3 Pub.lie Service Electric and Gas Company (Salem Nuclear Generating Station, Unit No. 1),

LBP-80-10, 11 NRC 337 (February 22, 1980) * . 11 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit No. 1),

LBP-80-27, 12 NRC (October 27, 1980) 4

• V

NRC REGULATIONS CITED Page 10 C. F. R. §2.715 . . . . . . . . . . 3 I 46 10 C.F.R. §2.762(a) . . . . . . 6I 30 10 C. F. R. Part 50, Appendix D . . . . . ** . 27 10 C.F.R. Part 51 . . . . . . . . . . . . . 28 10 C.F.R. §51.5(a) . . . . . . . . . *

• 28, 29 10 C.F.R. §51.5(c) . . . . . . . . 29 10 C.F.R. §51.7(b) (1)-(3) 33 10 C.F.R. §51.20(a) ..*. 33 10 C.F.R. §51.20(a) (5) . . . . . . . . . . 33

• MISCELLANEOUS Spent Fuel Storage, Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, 40 Fed. Reg. 42801 (September 16, 28, 29, 19 7 5) * * * * * * * * * * * * * * * * * .*

• 36 , 40 Proposed Issuance of Amendment to Facility Operating Operating License, 43 Fed. Reg. :5443 (February 8, 1978) ***.**.***** ~

• 2 Waste Confidence Rulemaking Proceeding, 44 Fed.

Reg. 61372 (October 25, 1979) . * * * * .

• 31, 32 Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act 25, 27, of 1969, 45 Fed. Reg. 40101 (June 13, 1980) 28 Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0404 (March 1978) 62 Final Generic Environmental Statement on 31, 36, Handling and Storage of Spent Light Water 41, 4 7, Reactor Fuel, NUREG-0575 (August 1979) 62 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), Docket Nos.

50-277, 278, Amendment Nos. 49 and 48 to Facility Operating License, Nos. DPR-48 and DPR-56 (November 30, 1978) *. . . * * * * * * . * * *

• 59 vi

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

PUBLIC SERVICE ELECTRIC AND ) Docket No. 50-272 GAS COMPANY, et al. ) (Proposed Issuance of

) Amendment to Facility (Salem Nuclear Generating ) Operating License Station, Unit 1) ) No. DPR-70)

LICENSEE'S RESPONSE TO THE BRIEFS IN SUPPORT OF EXCEPTIONS OF LOWER ALLOWAYS CREEK TOWNSHIP AND MR. AND MRS. ALFRED C. COLEMAN, JR.

INTRODUCTION Exceptions to the presiding Atomic Safety and Licensing Board's Initial Decision approving the use of higher capaci-ty spent fuel racks. in the captioned proceeding were taken by the two intervenor parties, Lower Alloways Creek Township

_!I and Mr. and Mrs. Alfred C. Coleman, Jr. Briefs in support

-1_/

of exceptions were filed by both parties.

As discussed below, the appellants have failed to demonstrate that the Licensing Board has committed error which requires reversal of its decision. Therefore, all

_.1/ Intervenor, Township of Lower Alloways Creek's Excep-tions and Appeal (November 4, 1980) and Intervenors, Alfred c. Coleman, Jr. & Eleanor G. Coleman's Excep-tions and Appeal (November 11, 1980).

-1_/ Intervenor, Township of Lower Alloways Creek's Brief in Support of Exceptions (December 4, 1980) and the Colemans' Brief in Support of Exceptions (January 13, 1981).

• exceptions should be denied and the Initial Decision of the Licensing Board should be affirmed.

STATEMENT OF FACTS The matter before the Atomic Safety and Licensing Appeal Board ("Appeal Board") involves the application filed on November 18, 1977, by Public Service Electric and Gas

_y Company ("PSE&G" or "Licensee") to amend the operating license for Salem Nuclear Generating Station, Unit 1 ("Salem Unit l" or "facility") to permit the substitution of new spent fuel racks to increase the spent fuel storage capacity from 264 to 1170 fuel assemblies for the facility.

On February 8, 1978, the Nuclear Regulatory Commission

("NRC" or "Commis.sion") published in the Federal Register a

• notice of "Proposed Issuance of Amendment to Facility Operat-ing License" concerning the proposed change..

_!/

As a result of three requests for a hearing, an Atomic Safety and Licens-ing Board ("Licensing Board") was constituted to rule on the petitions and later to preside over the proceedings. The Licensing Board admitted as parties the two appellants here, Lower Alloways Creek Township ("LACT") and Mr. and Mrs.

5/

Alfred C. Coleman, Jr. ("Colemans")- and permitted the

_]/ PSE&G is acting for itself and on behalf of the other owners of the Salem Nuclear Generating Station, Unit 1, Atlantic City Electric Company, Delmarva Power and Light Company and Philadelphia Electric Company.

__!/ 43 Fed. Reg. 5443 .

• 2/ -During virtually the entire proceeding below, the Colemans were represented by the Office of the Public Advocate of the State of New Jersey who, in addition to providing legal assistance, employed technical consul-tants on the Colemans' behalf.

States of New Jersey and Delaware to participate pursuant to 10 C.F.R. §2.715(c). Of the contentions originally admitted by the Licensing Board, only three survived a motion for

_i_l summary disposition filed by the Licensee. The two matters encompassed by the three contentions concerned asserted inadequacies related to the neutron poison material utilized in the new spent fuel racks and the Licensee's al-leged inadequate consideration of alternatives to the pro-posed reracking. In addition to the contested issues, the Board, sua sponte, raised.questions regarding the relation-ship of the Three Mile Island ("TMI") accident to the re-

. _]_/

quest for increased storage.of spent fuel.

The consideration of one matter raised by the Board,

• the consequences of a postulated "meltdown" in the. spent fuel pool at Salem, was challenged by the Licensee and NRC Staff.

__y Following its inquiry of the parties and partici-pants as to whether the TMI accident was a "Class 9" aqci-dent, as defined by the Commission, the Board directed the parties to consider the following question:

See Licensee's Motion for Summary Disposition (February 27, 1979) and LBP-79-14, 9 NRC 557 (April 30, 1979) .

. .2/ The other matters raised by the Board were considered at an evidentiary hearing held on July 10-11, 1979.

See NRC Staff Objection to Board Question (June 1, 1979) and Licensee's Response to NRC Staff Objection to Board Question and Motion for Extension of Time

• to File Response to Board Question Relating to Class 9 Accidents (June 18, 1979).

- 4 -

In the event of a gross loss of water from the spent fuel storage pool at Salem 1, what would be the difference in consequences between those occasioned by the pool with the expanded storage proposed by the Licensee and those oc-casioned by the present pool?

Licensee moved the Appeal Board to direct the certifi-cation of the question as to whether, in the circumstances of this case, the Board could properly consider this ques-

_2_/

tion. The Appeal Board denied the request as premature because "the Board below has marked a path of inquiry that 10/

stops short of considering a Class 9 accident."~ At a hearing held on April 28-30, 1980, the Licensing Board considered evidence on its last question.

On October 27, 1980, the Licensing Board issued its

• 11/

Initial Decision.~ It found no merit in the intervenors' contentions that the new racks will deteriorate or that the Licensee has not considered sufficiently the possible alter-12/

natives to the ~reposed action.~ The Licensing Board also found that its questions concerning the TMI accident had 13/

been adequately answered,~ and expressed its satisfaction

_J_/ Licensee's Motion for a Directed Certification and for a Stay (March 3, 1980) and Licensee's Supple-mental Brief Regarding its Motion for a Directed Certification and for a Stay (March 24, 1980).

10/ ALAB-588, 11 NRC 533, 536-37 (1980).

11/ LBP-80-27, 12 NRC (October 27, 1980) (hereinafter "Initial Decision"_)___

12/ Initial Decision at 1.

13/ Id. at 31.

• that in the event of a "gross loss of water" from the spent fuel pool, there would not be a great difference between the consequences occasioned by the proposed storage configura-14/

tions and those occasioned by the present one.~ The Board authorized the requested replacement of spent fuel storage 15/

racks at Salem Unit l . ~

STANDARD OF REVIEW Prior to addressing the specific exceptions briefed by appellants, the standard of review of licensing board deci-sions*by the Appeal Board will be discussed. Licensee will demonstrate that LACT and the Colemans have failed to raise any matters, when judged against the review standard, which would require reversal *

• The Appeal Board has only recently discussed the appli-cant's burden of proof in an NRC evidentiary proceeding such as this, as follows:

The State misconceives the nature of the applicant's evidentiary burden. It was not obliged to meet an absolute stan-dard but to provide "reasonable assurance" that public health, safety and environ-mental concerns were protected, and to demonstrate that assurance "by a preponderence of the evidence." This standard is set by the Administrative Procedure Act which governs Commis-sion adjudicatory hearings [footnote omitted]. 16/

Id. at 39.

Id. at 44. The NRC Staff issued the amendment to the Salem technical specifications on January 29, 1981.

16/ Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC (October 2, 1980), slip op. at. 3.

In judging whether the burden of proof has been met, Section 2.762(a) of the Commission's Rules of Practice requires that a brief filed in support of exceptions "shall specify, inter alia, the precise portion of the record re-lied upon in support of the assertion of error." The brief may not simply be a verbatim restatement of the proposed findings below, but must deal with the Licensing Board's 17/

decision so as to demonstrate how the Board erred.-

In this regard, the Appeal Board has stressed that it does not make an appellate determination on a clean slate:

We have stressed before that we may not "make an appellate determination on a clean slate without regard to the Licensing Board's opinion" and do not "weigh each piece of evidence de nova."

Rather, "the decision below is-'par'1: of.

the record'; we may, indeed must, at-tach significance to a licensing board's evaluation of the evidence and to its disposition of the issues." By neglect-ing to address their brief to the deci-sion under review and by omitting adequate record citations, intervenors leave us (and the appellees) guessing about the precise nature of their arguments and ignorant of the evidence they rely on to support them [footnote omitted]. 18/

The Appeal Board has explained the reasons for its reliance on the licensing board's opinion:

[T]hough we have the right to reject or modify findings of the licensing 17/ Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 805 (1979). The Appeal Board has previously stated that the failure to

• 18/

meet these requirements is justification for treatment of an issue as abandoned. Id. at 805-06.

Id. at 805.

- 7 -

• boards, we have stressed before that we would not do so lightly, and where the credibility of evidence turns on the demeanor of a witness, we give the judgment of the trial board which saw and heard his testimony particularly great deference. Again, the decision below is "part of the record"; we may, indeed must, attach significance to a licensing board's evaluation of the evidence and to its disposition of the issues. And in practice we do so.

Those boards are manned by individuals not necessarily less qualified or ex-.

perienced than ourselves; we merely possess the natural advantages that accrue to those who review the deci-sions of others [footnotes omitted]. 19/

Thus, an appellant must show that the record was inadequate to support the licensing board's findings or that it mis-understood or ignored evidence pointing to a different 20/

conclusion.-

With regard to the content of an initial decision, the Appeal Board has stated that a licensing board must "articu-late in reasonable detail the basis for [its] determinations" 21/

on the questions coming before them for decision.- The Appeal Board elaborated, noting:

. *

• the general duty of licensing boards [is] to insure that initial decisions and miscellaneous memoranda and orders contain a sufficient ex-position of any ruling on a contested issue of law or fact to enable the t

Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 404 (1976).

20/ Zion, supra, slip op. at 2 .

• 21/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410 (1978).

- 8 -

parties, and this Board on its own review, readily to apprehend the foundation for the ruling. Compliance with this general duty is not a mere procedural nicety but is a necessity if we are to carry out efficiently

• our appellate review responsibilities. 22/

The Licensing Board's Initial Decision clearly meets the standard laid down by the Appeal Board. Appellants have failed, by a wide margin, in their attack upon the Licensing Board's decision. The Board has memorialized in its Initial Decision its careful sifting of the record, addressing in considerable detail the reasons for assigning weight to the testimony of some witnesses and disregarding the testimony 23/

of others.~ The Board has discussed the physical hypothe-ses advanced by each witness and explained how it weighed

• the evidence of record in formulating its decision.

With regard to matters raised by the Board itself un-related to contested issues; appellants have an increased burden in overturning the Board's finding that the matter was satisfactorily resolved. Logically, where the Board itself formulates a question and pursues the matter, its 22/ Id. at 411, citing Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179 (1973).

Aside from one witness, who peripherally addressed the subject of environmentally preferable alterna-tives and was found to be completely unqualified to discuss accident probability or consequences, ap-pellants presented no witnesses on any of the three contested issues or the Board's questions relating to TMI. Thus, the only matter in which the Board had to weigh and evaluate conflicting testimony was its question regarding the "gross loss of water."

findings are entitled to some deference. One would have to.

find that the Board was clearly erroneous in its analysis of the record before overturning the result.

Applying these principles to this appeal, the brief of LACT is almost completely devoid of record citations, criti-cal analysis, and fails to specify and discuss specific al-leged errors below. As such, we submit that its appeal should be* rejected out of hand. ' For example, the LACT brief 24/

alleges that two witnesses "were both persuasive,"- but fails to set forth with any specificity the manner in which the Board below erred in disposing of the issues.

With regard to the Colemans, they are appearing pro~

before the Appeal Board and Licensee recognizes that their pleadings must be judged by a lesser standard than if pre-25/

pared by counsel.- *Nonetheless, the Colemans were repre-sented by the Office of the Public Advocate of New Jersey during the entire course of the proceeding before the Licens-ing Board. Many of their exceptions attempt to take a divergent position from that advocated by their attorney 26/

below- or raise matters which could and should have been LACT Brief at 3.

See The Detroit Edison Company (Enrico Fermi Atomic Plant, Unit 2), ALAB-469, 7 NRC 470 (1978); Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-140, 6 AEC 575 (1973).

In Link v. Wabash R.R. Co., 370 U.S. 626, 633-34

• (1962), the Supreme Court rejected the contention that a client could dissociate himself from the ac-(Footnote +/-.§.I continued on next page)

- *10 -

raised below and are thus improper. In any event, those exceptions also lack substantive merit.

Licensee submits that the challenged portions of the Initial Decision are adequately supported in the record.

Neither LACT nor the Colemans have pointed to a serious error on the part of the Board, let alone an error which would require reversal or remand. The exceptions should be denied.

LACT EXCEPTIONS Exception 1 LACT contends that the "Atomic Safety & Licensing Board committed factual and legal error in rejecting the testimony of Dr. Alan S. Benjamin of Sandia Laboratories that further analysis could predict more precisely whether oxidation could propagate to older fuel and that calculations. for such 27/

analysis could be performed."-

26/ (continued) \

tions of his attorney in the proceeding below. The Court stated:

Petitioner voluntarily chose this attorney

.as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely se-lected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent * . .

• See also Cine Forty-Second Street Theatre Corp. v .

• A1*1*ied Artists Pi*ctures Corp., 602 F.2d 1062, 1068 (2d Cir. 1979); Kung v. Fem Investment Corp., 563 F.2d 1316, 1318 (9th Cir. 1977); Perrignon v. Bergen Brunswig Corp., 77 F.R.D .. 455, 460 (N.D. Cal. 1978).

LACT Brief at 1.

As noted previously, the Licensing Board in its Memo-28/

randum and Order dated February 22, 1980~ directed the parties to address the difference in consequences in the event of a "gross loss of water" from the spent fuel storage pool between those occasioned by the proposed storage con-figuration and those occasioned by the existing pool.

The Board's Order gave no further definition of the term "gross loss of water," nor did it explain how such an event could be postulated to occur. The Staff examined- the design of the Salem Unit .1 spent fuel pool and imposed for purposes of analysis single and even "highly unlikely" multiple 29/

failure accident scenarios,~ but was unable to find any 30/

possible mechanism for uncovering the stored fuel.~

.Nevertheless, the Staff defined a "gross loss of water" as a hypothetical, non-mechanistic, instantaneous loss of all cooling water combined with an inability, for unspeci-fied reasons, for refilling the pool, or providing any other 31/

mode of cooling other than natural (convective) air cooling.~

It is critical to note that this was a mere hypothesis for purposes of analysis; it is not an accident in the sense that it has any possibility of occurrence, no matter how remote, attached to it.

28/ LBP-80-10, 11 NRC 337, 346.

29/ Direct Testimony of Walter F. Pasedag in Response to Board Question No. 5, following Tr. 1387 at 2 (here-

• 30/

31/

inafter "Pasedag Testimony").*

Id. at 2, 4-5.

Id. at 3.

To place this matter in perspective, it is necessary to examine briefly the spent fuel pool at Salem Unit 1 which is in the Fuel Handling Building, a reinforced concrete build-32/

ing devoted to the handling and storage of Unit 1 fuel.~

The spent fuel pool consists of a steel-lined reinforced Category I concrete basin with wall thi~knesses exceeding 33/

six feet on all sides and 24 feet at the bottom.~ There is no drain in the pool, and lines which might possibly enter 34/

the spent fuel pool are fitted with anti-siphon devices.~

There are a number of water sources available to make up 35/

water to -the spent fuel pool.~ The building has been designed so it is physically impossible for movement of a spent fuel cask above the spent fuel pool. There are also

• a low water level alarm which z-eads out in the control room and area radiation monitors in* the Fuel Handling Building.~

Moreover, the Staff analysis assumes that no effort is taken 36/

to minimize the loss or to add water.

A completely separate, identical but mirror-image building serves the same function for Unit 2.

Pasedag Testimony at 1; Tr. 1459. The Staff analyzed the seismic response of the new racks and concluded they have no appreciable effect on the structural stability and seismic response of the building (Pasedag Testimony at 1).

Tr. 1463.

Tr. 1462.

36/ Tr. 1470; Exhibit lD at 7. The Licensee preferred te~timony similar to this aspect of the Staff's testimony .

The testimony (Exhibit 14 for identification) describes in somewhat greater detail the design of the spent fuel pool and fuel handling building and multiple failure (Footnote 36/ continued on next page)

Critical times regarding cooling of spent fuel are in the order of hours, as compared to seconds or minutes for emergencies involving the reactor. The Staff postulated that in the event of occurrence of a "gross loss of water" for fresh spent fuel, i.e., that batch most recently dis-charged from the reactor, continued denial of water cooling capability may eventually lead to oxidation and failure of the clad and to overheating of the fuel with the potential for the release of the fission products in the fuel in either the present or the expanded pool.

The Board found that there would be a higher likelihood that the recently discharged fuel would reach oxidation temperatures in the proposed configuration. The decay time

• required to assure that the fuel's decay heat generation would not result in oxidation temperature in the higher 37/

density storage configuration is about one year.~.

Dr. Benjamin, the expert upon whom LACT relies on ap-peal, acted as a consultant to Mr. Pasedag, providing infor-mation relating to heat transfer and oxidation in the pool.

36/ ( continued) scenarios. .The Licensee's testimony concluded that adequate cooling of the spent fuel was achieved in all circumstances. While Licensee believes it was an error to exclude this testimony, the Staff's un-contradicted and unchallenged testimony on these points is part of the record. Reversal of the Board's exclusion of such testimony is therefore unnecessary as the error is not harmful *

• 37/ Initial Decision at 36. It is ~mportant to note that such estimate is based upon the worst configuration of spent fuel in the pool. For other situations, i t would be significantly less.

Dr. Benjamin disagreed strongly with the testimony of Dr.

Webb, the witness for LACT, testifying that it would not be possible to have flames in the spent fuel pool despite the high temperatures which would follow a "gross loss of water." Freshly discharged spent fuel would become hot, oxidize, glow and emit radiation, but this oxidation would not spread from one spent fuel element to any other by what 38/

is commonly thought of as a "fire." While Dr. Benjamin did not believe that one could rule out the possibility that these older assemblies would oxidize, Mr. Pasedag testified that any oxidation of the older assemblies would be limited and would not lead to a release of fission products substan-tially greater than those released by the recently dis-charged fuel*. Mr. Pasedag further testified that even if some oxidation of the older fuel assemblies occurred, it would be limited to those stored neare$t the recently dis-charged assemblies, would probably not be sufficient to melt the clad and would certainly not be sufficient to melt the fuel.

The Licensing Board found the Staff's testimony "to be persuasive and not meaningfully contradicted by any other 39/

testimony."- The Board found that, even if oxidation did propagate to the older fuel, the resulting radioactive 38/ Id. at 37. "Fire" was defined by the Board as a deflagration with rapid convection and spreading of flames.

39/ Id. at 38.

40/

• release would not be significant~ in comparison to the radioactive release from the recently discharged fuel.-

LACT alleges that further analysis could predict more 41/

precisely whether oxidation could propagate to older fuel.

LACT equates the fact that further analysis could be per-formed with the* existence of an "unresolved issue" which mandates reopening the record and ordering an additional evidentiary hearing. The only decision cited by LACT, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-284, 2 NRC 197 42/

(1975), including its companion, ALAB-275,~ is inapposite here. In Prairie Island, the Licensing Board had found a particular method of maintaining .steam generator tube in-

• tegrity to be adequate in the face of actual reactor ex-perience that the method utilized did not prevent signifi-cant corrosion. The Appeal Board, however, was concerned with the fact that "a difficult, highly technical safety

\

issue having many facets to it II had been decided on an .

11 incomplete record, i.e., wi thout the availability of the witnesses for not only cross-examination by other parties 43/

but aiso interrogation by the members. of this Board ... -

Initial Decision at. 38. See also Further Testimony of Walter F. Pas.edag in Response to Board Question No. 5, Tr. followirig 1387 at 2 (hereinafter 11 Pasedag

Further Testimony").

!!f Initial Decision at 39 .

• 42/

• Northern. States Power Company (Prairie Island Nuclear

. *43/

.Generating Plant, Units 1 and 2), ALAB-275, 1 NRC 523 (1975) . .

AI,AB-284, 2 NRC at 206.

16 Here, by contrast, the Board devoted considerable time to its consideration and made detailed findings with regard to the issue of the "gross loss of water," including possi-ble fuel clad melting and oxidation, carefully considering and weighing the evidence presented to it. There was no evidence of any contrary experience which the Board failed to consider. Intervenor LACT points to nothing in the record which was.overlooked by the Board in reaching its decision nor any significant new developments which would require the record to be reopened. Accordingly, whether further calculations could predict oxidation effects more precisely is irrelevant. As discussed supra, the standard of proof is whether there is "reasonable assurance" and not whether some.fact has been proved absolutely.

The logic of LACT's argument in support of its first exception is arcane and difficult to follow. The LACT brief states:

Apparently, the Atomic Safety &

Licensing Board reached the conclu-sion that even though Dr. Benjamin testified that further analysis could predict more precisely whether oxida-tion would propagate to older fuel, that such an analysis was not neces-sary in that the radioactive releases from older fuel would not be signifi-cant in comparison to radioactive re-leases from recently discharged fuel.

While this may be true, Dr. Richard E.

Webb's .testimony on radioactive re-leases as well as the offered testimony*

of or: Fankhauser was excluded by the Atomic Safety & Licensing Board. More

important, the critical question as to whether the radioactive releases in an enlarged pool would be greater than the radioactive releases in the pools originally designed remains unanswered

[emphasis supplied]. 44/

On the contrary, there can be no*doubt as to the rea-sons underlying the Board's conclusion that further analysis is not required. The Board's analysis is set forth at pages 38 and 39 of the Initial Decision. Specifically, on page 39 the Board states:

We do not believe, however, that further study is needed to reach our decision. Mr. Pasedag's testi-mony convinced us that even if oxi-dation did propagate to the older fuel the resulting radioactive re-lease would not be significant in comparison to the radioactive re-lease from the recently discharged fuel. When we consider that Dr.

Webb was unable to describe any credible mechanism for propagation despite a specific invitation to do so, and consider that a gross loss of water is in itself an event of very low probability, we do not believe that further study of propagation is necessary to answer our question. We are satisfied that in the event of a gross loss of water from the spent fuel pool, there would not be a great difference between the consequences occasioned by the pro-posed storage configuration and those occasioned by the present one.

While LACT all but concedes the correctness of the 45/

Board's conclusion,- it complains that the testimony of its witnesses, Dr. Webb on radioactive releases as well as the 44/ LACT Brief at 2.

45/ Id.

• proffered testimony of Dr. Fankhauser in its entirety, was excluded. LACT does not identify any connection the ex-cluded portions of the testimony may have with the Board's finding that additional study is unnecessary. In fact, the reasons for rejecting portions of Dr. Webb's testimony are 46/

clearly set forth in the record.~ Also, the Board properly rejected Dr. Fankhauser's testimony as irrelevant to any difference between the existing and proposed storage con-47/

figurations.~ LACT has said nothing which would cast doubt on the correctness of these evidentiary rulings excluding testimony.

Reference to LACT's Proposed Findings of Fact and Conclusions of Fact and Law submitted on June 19, 1980 at 14 and 15 shows that its analysis regarding the "gross loss of water" is so brief and lacking in substance as to be a 48/

nullity.~ Having failed to advise the Licensing Board of its position and its analysis of the record, it is precluded 49/

from raising the same matter here.~

!§/ Tr. 1377-81, 1679-82.

47/ Initial Decision at 32.

48/ LACT generally refers to Dr. Webb's testimony and merely states that Dr. Benjamin gave his opinion that further analysis is needed.

49/ The Appeal Board is not required to review exceptions made by a party which has failed to file proposed findings on the issues with respect to which the ex-ceptions are taken. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, lB and 2B),

ALAB-463, 7 NRC 341, 348 (1978); Florida Power. &

Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-280, 2 NRC 3, 4 n.2 *(1976'}r-Northern (Footnote 49/ continued on next page)

Finally, LACT alleges that the "critical question as to whether the radioactive releases in an enlarged pool would be greater than the radioactive releases in the pools orig-50/

inally designed [sic] remains unanswered."- Such a state-ment has no basis in fact and completely ignores the analy-sis and evaluation of the Licensing Board appearing on pages 31-39 of the Initial Decision, which led to the following conclusion:

We are satisfied that in the event of a gross loss of water from the spent fuel pool, there would not be a great difference between the conse-quences occasioned by the proposed storage configuration and those oc-casioned by the present one.

Thus, the Board's resolution of this matter is well grounded in* the record. LACT has advanced no reason why the Board's decision was incorrect or why a remand for additional evidence is necessary. 'This exception should be denied.

Exceptions 2, 3 and 4 LACT Exceptions 2, 3 and 4 allege that the. Licensing Board erred in finding that the consequences of a "gross loss of water" would not be greater in the proposed storage 49/ (continued)

States Power Company (Prairie Island Nuclear Generat-ing Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 964 (1974).

50/ LACT Brief at 2.

51/

configuration as contrasted with the original design;~

that the increased storage would not significantly increase the impact on the human environment in the event of a loss of water accident; and* that there was reasonable assurance that the activities authorized by the requested amendment could be conducted without endangering the health and safety of the public. Substantially the entire argument in support of these three points is the assertion that "the testimony of Dr. Richard E. Webb and Dr. George Luchak were [sic] both persuasive that there would be significant consequences to the environment and safety and health of the public" in the 52/

event of an accident affecting the enlarged spent fuel pool.~

Inasmuch as LACT failed to submit meaningful proposed findings o.f fact relating to the "gross loss of water," i t should not be heard to complain of the Licensing Board's 53/

decision.~ These three exceptions should be denied out of hand.

In any event, the Licensing Board found Dr. Luchak un-qualified to testify as to the probability of an accident in the Salem spent fuel pool or as to the consequences of such In paragraph (1) of the LACT Brief at 3, the finding of the Board's Initial Decision at 39 is mischaracter-ized. The Licensing Board found that "there would not be a great difference between the consequences [emphasis supplied]."

LACT Brief at 3.

See note 49, supra.

54/

• an accident.~ The Licensing Board's conclusion in this regard is well founded and fully discussed in the record.

Dr. Luchak has only studied a basic nuclear engineering 55/

textbook;~ has had no academic course work in the design of nuclear power plants or the biological effects of radia-56/

tion;~ has never written any scientific articles concerning 57/

the subject matter of his testimony;~ has never visited the 58/

Salem facility or any other nuclear power station;~ has not studied the layout of the plant; nor was he acquainted 59/

with the detailed design of the plant.~ Dr. Luchak's credentials to perform the meteorological portion of acci-dent calculations were .limited to some World. War II train-

_§_Q/

ing. Furthermore, Dr. Luchak could not postulate any particular accident directly affecting the spent fuel pool and was only able to recite vague allegations concerning reactor accidents affecting the spent fuel pool. Certainly, Dr. Luchak never testified concerning any mechanism which could cause a "gross loss of water" as that term was defined and utilized in this proceeding. Therefore, the Board was totally justified in disregarding his testimony. LACT 54/ Initial Decision at 20.

55/ Tr. 895.

56/ Tr. 894.

57/ Tr. 897.

58/ Id.

59/ Tr. 900-01.

60/ Tr. 894.

points to nothing which would indicate error on the part of 61/

the Licensing Board.-

Likewise, the Board found the testimony of *Dr. Webb to 62/

be "ill organized," "difficult to follow," and "unsuitable, 11 -

co.ncluding that it was of little help in assisting the Board to answer the question posed. The Board's reasons for 63/

~eject;i,?9' portions of Dr. Webb's proffered testimony- are fully and cogently set forth in the record. The reasons for 64/

assigning little weight to that portion admitted- are also adequately explained, and little purpose would be served by repeating them, particularly since LACT fails to advance any specific argument whatsoever that the Licensing Board erred in its conclusions regarding Dr. Webb's testimony.

Indeed, the Board treated Dr. Webb most graciously under trying circumstances. Dr. Webb's testimony was disjointed, without foundation, conclusory, argumentative and non-responsive to the questions of the Licensing Board 65/

and parties.- Dr. Webb characterized many physical phe-In fact, this section of the LACT brief contains only three citations to the record, two of which are general references to the prefiled testimony of Drs.

Luchak and Webb.

Initial Decision at 35.

The testimony was scattered throughout a number of parts and supplements, addenda and further remarks.

The Licensing Board correctly characterized this testimony as ill-organized and difficult to follow.

64/ Initial Decision at 32-35 .

65/ See, e.g., Tr. 1706-06, 1709-11, 1775.

nomena as "conceivable" because he deemed it possible that they could occur or that their occurrence could not be ruled out. However, he did not attach any probability of occur-66/

rence of such phenomena in his prefiled or oral testimony.

Thus, his testimony as to possible consequences of such postulated occurrences had little probative value. Another major failing was Dr. Webb's inability to come to any con-clusion as to whether the fuel stored in present racks would 67/

reach a self-sustaining oxidation *temperature.~ Thus, he was unable to offer any conclusion on the Licensing Board's question regarding a gross loss of water accident. LACT states no ground for a finding of error in observing that the Board rejected Dr. Webb's testimony "in large part on the grounds that some of his statements are simply unsup-ported." In sum, LACT presents no specific reason. why the Board's findings should be overturned.

With regard to Mr. Pasedag's testimony, the Board has set forth in detail the reasons for its determinations and, specifically, for its finding regarding the "gross loss of

~

water." While LACT disputes Mr. Pasedag's testimony that oxidation of older fuel assemblies would be limited, i t has Tr. 1723-31, 1769.

Tr. 1716; Webb, Part III of Supplement at 1-3 and Open Rack Analysis of Fuel Handling, attached thereto, Tr. following 1697.

Initial Decision at 35-39.

not identified any specific error in the Licensing Board's analysis. *To the contrary, the Board was entitled to rely on Mr. Pasedag's testimony, which carefully laid out those factors leading him to conclude that the older elements 69/

would not oxidize.- LACT asserts that Mr. Pasedag "stated that calculations that have not been done would be required 70/

in order to form an intelligent opinion."- However, no

\

citation to the record is given for this position, and in fact the opposite is true. Mr. Pasedag did indeed reach a conclusion. LACT has presented absolutely nothing which would indicate error on the part of the Licensing Board.

LACT's Exceptions 2, 3 and 4 should be denied.

The "Gross Loss of Water" is a Class 9 Accident Licensee submits that the discussion in the previous two sections is dispositive of the first four LACT conten-tions. Therefore, it is unnecessary for the Appeal Board to reach the question discussed in this section as to whether the "gross loss of water" postulated by the Licensing Board is a Class 9 accident. However, this remains an independent reason to deny the exceptions relating to a "gross loss of water," i.e., LACT Exceptions 1-4. If the Appeal Board should find. some error in the Licensing Board's treatment of the !lgross loss of water," such error would be harmless be-69/ Tr. 1409-11; 1413-14.

70/ LACT Brief at 4 .

cause the record is clear and unambiguous that the postu-lated event can only be attributable to the occurence of a "Class 9" accident, whose consideration has been strictly forbidden by the Commission in this class of proceedings.

The Conunission's Statement of Interim Policy, "Nuclear Power Plant Accident Considerations Under the National Environmental 71/

Policy Act of 1969 ("Statement of Interim Policy")- does not change the applicability of the prohibition against consideration of Class 9 accidents in this case.

The history and background related to Commission con-sideration of Class 9 accidents generally, and in.this case, 72/

specifically, are set forth in ALAB-588-and in the Licen-73/

see's pleadings requesting directed certification.-

• While it may be possible in the abstract to pursue the question of the "gross loss of water" without treading on prohibited ground, the Board's postulated "gross loss of water," as the record was developed here, could only be attributable to sequences of successive failures more severe than postulated for the design basis of protective systems and engineered safety features, the accepted definition of a

. 74/

Class 9 accident.- The Staff stated* that "a loss of all 71/ 45 Fed. Reg. 40101 (June 13, 1980).

72/ Note 10, supra. See also Statement of Interim Policy.

• 73; Note 9, supra .

• 74/ ALAB-588, 11 NRC at 534, n.2.

water from the pool is not considered credible and would exceed all design requirements for the present and expanded 75/

spent fuel pool" and clearly labeled i t a Class 9 accident.-

The* Staff examined multiple failures which it considered highly unlikely, bµt did not identify any which would lead to any uncovering of the spent fuel, let alone lead to the 76/

"gross loss of water" postulated by the Board.-

In the circumstances, and utilizing the accepted defi-nition of a Class 9 accident, the "gross loss of water" could only be caused by a multiple failure pathway, a conclusion which is solidly reinforced by the fact that no party below has been able to postulate a set of circumstanqes to cause the hypothetical "gross loss of water." Although the Licensing Board treated the issue as moot, there can be little doubt from the context of its discussion that it, 77/

too, regarded the "gross loss of water" as a Class 9 accident.-

Pasedag Testimony at 5. See also id. at 3; Pasedag Further Testimony at 3.

See also Exhibit 14 for identification. The Staff also evaluated the differences in the liquid pathway between the Salem site and the typical site discussed in detail in the Staff's Liquid ~athway Generic Study in order to determine whether special site specific factors might be present -at the Salem site. The Staff's evaluation indicated a slower dispersal of postulated releases via the liquid pathway compared to the typical estuary site and, as a result, the Staff concluded that there were no site-specific peculiarities with respect to the Salem site which would invalidate the conclu-sions concerning liquid releases in the Environmental Impact Appraisal. Pasedag Testimony at 3. There was no evidence to the contrary.

Initial Decision at 39-41.

There can only be one conclusion, that the "gross loss of water" is in reality a Class 9 accident.

In our view, the Licensing Board erroneously determined that the characterization of the "gross loss of water" as a Class 9 accident was mooted when, subsequent to the close of the record, the Commission adopted its "Statement of Interim Policy." However, the actions mandated by the Statement of Interim Policy do not apply to this proceeding, and the Board was therefore prohibited from considering Class 9 accident related matters.

Essentially, the new Commission Policy withdrew the proposed Annex to Appendix D of 10 c.F.R. Part 50 and re-quires consideration of core melt accidents in ongoing and

• future construction permit and operating license proceedings in an applicant's environmental report and the Staff's final environmental impact statement where a final environmental 78/

impact statement ("EIS") has not yet been published.-

Inasmuch as the Final Environmental Statement related to operation of the facility was published some time ago and no EIS was required to be prepared in conjunction with the proposed amendment of the operating license, the new re-One interpretation of the Policy is that the Commis-sion only meant to require consideration of reactor accidents ,and not postulated events in the spent fuel pool. However, the Appeal Board need not even reach this question here.

• quirements of the Statement of Interim Policy have no ap-plication to this proceeding. The Licensing Board apparently 79/

reached the same conclusion.~ In these circumstances, all exceptions related to the "gross loss of water" should be stricken.

Exception 5 LACT states that "[i]t was legal error to find that the granting of the license [amendment?] would not be a major commission [Federal?] action and therefore there would be no requirement for an environmental impact statement under the National Environmental Policy Act of 1969 (NEPA), 42 USC

§4321, et seq." The argument in support of this exception is unclear but, in any event, unconvincing. LACT cites no authority, including any section of 10 C.F.R. Part 51, which would require that an EIS be prepared. As a matter of fact, 10 C.F.R. §51.S(a) does not list the expansion of a spent fuel pool's capacity as one of those actions which requires the publication of an EIS. Furthermore, in a public notice entitled Spent Fuel Storage, Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (herein-after "Notice of Intent to Prepare GEIS"), the Commission 79/ Initial Decision at 41. Nor are there any "special circumstances" in this proceeding which would require consideration of what were formerly known as Class 9 accidents. Certainly, appellants point to none .

has recognized that an EIS is not a legal requirement for a licensing action involving fuel pool storage expansion.~

This Appeal Board held, in reviewing a licensing board 80/

decision approving increased spent fuel storage, that an EIS 81/

was unnecessary.

LACT has brought nothing to the attention-of the Appeal Board which, as a factual matter, would require the prepara-tion of an impact statement or lead to the conclusion that 80/ 40 Fed. Reg. 42801, 42802 (September 16, 1975). The Commission stated:

The Commission expects that any licens-ing action intended to ameliorate a pos-sible shortage of spent fuel storage capacity during this interim period would be accompanied by an environmental impact statement (10 CFR §51.S(a)) or impact ap-praisal (10 CFR §51.S(c)) tailored to the facts of the case [emphasis supplied].

81/ Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 271 (1979) (finding that the Staff's Environmental Impact Appraisal was ade-quate). See also Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-12, 11 NRC 44, 100 (1980).

• Compare Consumers Power Company (Big Rock Nuclear Plant), LBP-80-25, 12 NRC 355 (1980)

(EIS required for spent fuel pool expansion where facility was licensed prior to NEPA). In the Big Rock proceeding, the Licensing Board stated with ap-parent approval its understanding that the Staff ordinarily issues a negative declaration based on an Environmental Impact Appraisal in such proceedings.

12 NRC at 357.

The Licensing Board below quite properly determined that no EIS was necessary in view of the finding in the Appraisal that no significant adverse effect on the environment would result from the license amend-ment. See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), CLI-80-25, 11 NRC 781, 786 (1980).

reliance upon the Staff's Environmental Impact Appraisal

• ("EIA"), Exhibit 6C, is improper. LACT has made no attempt to demonstrate error in the finding that the action involved 82/

no significant impact.~ Furthermore, none of the conten-83/

tions submitted by LACT sought to raise this issue.~

Neither did the proposed findings of fact and conclusions of 84/

law submitted by LACT discuss this matter in any detail.~

Other than its generalized contention that NEPA requires a detailed analysis of potential health and safety problems in 85/

reracking,~ LACT offered no other statement of facts in support of its position that the EIA was insufficient. In the circumstances, the EIA prepared by the NRC Staff was appropriate and sufficient *

• 82/

83/

See the discussion in *the Initial Decision at 16-17, 42.

The only contention which is even remotely connected relates to consideration of alternatives by the Licensee.

84/ The matter was a+luded to without discussion on page 17 of LACT's Proposed Findings of Fact and Law (June 1980). As this Appeal Board commented in a recent decision involving spent fuel pool expansion where appellant had likewise failed to state the factual basis for its exception:

Unfortunately, we are not told what "facts" the Board overlooked. Although

• required to specify "the precise por-tion of the record relied upon in sup-port of the assertion of error" (10 C.F.R. §2.762(a)), [appellant's] brief on this point is devoid of references to the record.

Zion, supra, slip op. at 9.

85/ LACT Brief at 6.

The appellant alleges that the Licensing Board erro-neously relied upon the Final Generic Environmental State-ment on Handling and Storage of Spent Light Water Power 86/

Reactor Fuel ("FGEIS on Spent Fuel").- LACT fails to state how the Licensing Board relied on this document. In fact, the Board merely noted its existence and commented that 87/

certain findings therein were similar to its own.-

The next matter which LACT raises relates to long term 88/

storage of spent fuel at reactor sites,- which LACT states has been inadequately analyzed by the Nuclear Regulatory Commission. As LACT itself recognizes on page 5 of its brief, long term storage of spent fuel is the subject of the ongoing Waste Confidence Rulemaking Proceeding, in which 89/

LACT is a participant.- LACT may raise issues relating to 90/

long term storage only in the Waste Confidence Rulemaking.-

~/ NUREG-0575 (August 1979).

87/ Initial Decision at 43.

~/ LACT Brief at 4.

~/ 44 Fed. Reg. 61372. (October 25, 1979).

90/ In its Notice of Proposed Rulemaking in the Waste Confidence Rulemaking proceeding, the Commission stated:

During this proceeding the safety implications and environmental im-pacts of radioactive waste storage on-site for the duration of a license will continue to be subjects for ad-judication in individual facility licensing proceedings. The Commission has decided, however, that during this proceeding the issues being considered (Footnote 90/ continued on next page)

LACT states that the FGES on Spent Fuel does not comply

• with NEPA in respect to discussing irreversible and irre-trievable commitment of resources.

91/

Inasmuch as the Board 90/ (continued) in the rulemaking should not be addressed in individual licensing proceedings. These issues are most appropriately addressed in a generic proceeding of the character here en-visaged. Furthermore, the court in the State of Minnesota case by remand-ing this matter to the Commission but not vacating or revoking the facility licenses involved, has supported the Commission's conclusion that licens-ing practices need not be altered during this proceeding. However, all licensing proceedings now underway will be subject to whatever final determinations are reached in this

-proceeding.

44 Fed. Reg. 61372 (October 25, 1979). Accordingly, the Appeal Board has held that waste management issues may not be considered in individual proceedings involv-ing proposed spent fuel pool modification. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 465 (1980.). In general, as the Appeal Board stated in Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 .and 2), ALAB-218, 8 AEC 79, 85 (1974), "licensing boards should not accept in indiy;i.dual license proceedings contentions which are

• * .

• th.e subiect o;f general rulemaking by the Commis-sion." * '

Li.ACT :S;r:i_e;f at 5. As regards Salem Unit 1, the Staff SJ>ect.;fi.cally dete;i.:-mined ,in its EIA that the proposed expa,n~i,on of th.e spent fuel pool is not a major Federal a.ction significantly affecting the quality of the human enviz.oo!lII\ent. "See Exhibit 6c* at 27. Therefore, no con-s;i,de;rcl,t;i,on of "irreversible and irretrievable commitments o-e resources" was necessary, inasmuch as this is one of th.e fi..ve aspects of a detailed EIS, 42 u.s.c. §4332(2) (c) (v),

wh.;ich was not ;required in this instance. Thus, NRC regu-lations state that a draft EIS must contain, inter alia, (footnote *91/ continued on next page)

did not rely on this document, it is not clear wliat error is being alleged. The only allusion to "irreversible and irretrievable commitment of resources" by LACT is its state-ment that "[d]ecisions to permit expansion of spent fuel pools [create] large amounts of nuclear waste which do II 2Y require isolation from the environment . . . This statement is simply incorrect. The decision to expand the spent fuel pool capacity does not cause the generation of additional spent fuel. The operating license for Salem Unit 1 was issued on the basis that spent fuel would be generated over the full term of the license. All spent fuel asso-ciated with the operation of Salem Unit 1 is therefore related to the earlier decision to permit operation of the reactor. Portland General Electric Company (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 266 n.6 (1979).

In this respect, LACT also states that "[i]t is un-disputed that questions involving storage and disposal of nuclear waste (spent fuel) pose serious concerns for health 91/ (continued) the matters specified for inclusion in the applicant's Environmental Report, which requires consideration of any irreversible and irretrievable commitment of re-sources. See 10 C.F.R. §§51.20(a) (5) and 51.23(a).

No such requirement exists for the preparation of an EIA. See 10 c.F.R. §51.7(b) (1)-(3).

92/ LACT Brief at 5.

- 34 and the environment," citing Vermont Yankee Nuclear Power

• Corp. v. NRDC, 435 U.S. 519, 538-39 (1978). However, that decision is inapposite inasmuch as it deals only with waste management issues, i.e., reprocessing and ultimate disposal, as part of the assessment of environmental costs associated with the backend of the fuel cycle. The decision did not concern short term storage in spent fuel pools at reactor 93/

sites.-

94/

LACT's argument regarding NEPA's 11 rule of reason" is also without merit. If the argument is that the Board was somehow incorrect in rejecting the alternative of off-site storage, it falls far short of demonstrating reversible error. The Board clearly set forth the reasons for its evaluation of. environmentally preferable alternatives to the 95/

proposed action,- including offsite storage. These reasons Of course, the decision from which LACT quotes Judge Bazelon, NRDC v. United States Nuclear Regulatory Com-mission, 547 F.2d 633 (D.C. Cir. 1976), rev'd, 435 U.S.

519 (1978), was part of the same Vermont Yankee proceed-ing below~

LACT Brief at 6.

Initial Decision at 17-26. We would note that the only relevant .contention relates to the assertion that the Licensee did not consider alternatives adquately. In-asmuch as NEPA requires only the Federal agency to con-sider alternatives, when otherwise appropriate, Susque-hanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 239, cert. denied, 49 U.S.L.W. 3487 (January 13, 1981), 15 ERC 1406 (text of dissent); Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 541-42 (1978), the excep-tion should be.denied as a matter of law.

In order to reject the applicant's proposal for the spent fuel pool modification, the Licensing Board would have had to determine that:

(Footnote 95/ continued on next page)

included the Board's determination that the environmental

• effects of such alternative spent fuel storage were not demonstrably less than for the proposed action.~

96/

If LACT is stating that the consideration of accidents by the Commission should be changed as a result of the TMI accident, this change has already been accomplished, as dis-97/

cussed, supra, pages 25-28.~ Of course, the Appeal Board is bound by the Commission's Statement of Policy, which mandates that the new policy may not be applied to situa-tions such as the one at hand. In any event, LACT had adequate opportunity to convince the Board that there were serious consequences associated with the "gross loss of water" compared to the existing ones, but was unable to do so. Beyond that, it is unclear what error Appellant is addressing.

In the last paragraph of its brief, LACT states that

"[t]he NRC should face up to the legal responsibility of 95/ (continued)

(1) at least one of the alternatives was environmentally superior; and (2) that such environmental superiority was not outweighed by other considerations such as comparative costs.

Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 458 (1980). The record in this case would not support either finding.

2.§./ Initial Decision at 16-17.

• 97/ The Licensing Board took great pains to consider the effect of a TMI-type accident on the spent fuel pool for Salem Unit 1. Initial Decision at 26-31.

preparing a specific generic environmental impact statement which would deal with at-reactor storage of spent fuel. II In fact, as recognized by LACT, the NRC Staff has issued NUREG-0575, which is by all accounts the requested document.

Moreover, as previously noted, the Commission, in its Notice of Intent to Prepare GEIS, permitted individual actions to proceed without such a generic EIS. LACT never even sought to contest the Staff's affinnative detennination on the 98/

required five factors under the GEIS in this proceeding,-

which the Board found to be "fully warranted." LACT's proposed findings are completely silent on the matter. The Licensing Board's treatment of this matter was proper in all 2-2_!

respects.

LACT Exception 5 should be denied.

EXCEPTIONS OF MR. AND MRS. ALFRED C. COLEMAN, JR.

General On January 13, 1981, the Colemans submitted a document

, 100/

entitled "Brief in Support of Exceptions ... - - In reviewing this pleading it should be borne in mind that, while they 98/ Initial Decision at 43.

99/ Licensee submits that since LACT never demonstrated that there were environmental impacts significantly affecting the environment, the Board should not have considered alternatives. Moreover, inasmuch as Licen-sees are not required to consider alternatives, it should have found for the Licensee with respect to this contention as a matter of law, n.96, supra.

100/ See note 2, supra.

are now appearing pro~ and minor deficiencies in form are 101/

excusable,~- the Colemans were represented by the Public Advocate of the State of New Jersey throughout all earlier phases of the proceeding, i.e., prior to the first prehear-ing conference. The Public Advocate submitted revised contentions on behalf of the Colemans; it also obtained expert advisors to assist in the preparation of their case.

The Public Advocate appeared on behalf of the Colemans at 102/

every hearing session.-- It is evident from even a cursory examination of the record that the Colernans' attorneys were actively involved in this proceeding; filing motions, responding to various motions, obtaining discovery, .cross-examining witnesses, and submitting proposed findings of fact and 103/

conclusions of law all on behalf of the.Colemans.--

Thus, the errors which the Colemans allege must be viewed in light of their representation by counsel who determined the Colemans' strategy and tactics, presumably wfth their aid and consultation.

Licensee will address below each point in the various sections of the Colemans' brief, pointing out if the matter 101/ See note 25, supra.

102/ Furthermore, it is the recollection of counsel for the Licensee that either Mr. or Mrs. Coleman was present on each day of the proceeding.

103/ Intervenors-Colemans' Proposed Findings of Fact and Conclusions of Law on their Contentions 2 and 6, Board Question 5 and Away-from-Reactor Alterna-tives (June 26, 1980).

/

had been previously addressed in the record and commenting on the relevance and materiality to the issues in this proceeding.

Findings of Fact I.

In Section I, the Colemans state that the racks for Salem Unit 1 were originally designed to hold 264 spent fuel 104/

assemblies.~- The Colemans, however, allege that the Licensee has justified this capacity by "stating a myth" that a permanent spent fuel pool storage facility will be available when needed by nuclear utilities. Even though the original basis for sizing the spent fuel pool racks has no relevance to this proceeding, the Colemans are s*imply in error. The racks for Unit 1 were sized at the time it was contemplated that spent fuel would be reprocessed. The request for amendment of the operating license came about as a realization that reprocessing or permanent disposal of spent fuel could not be achieved by the time the original 105/

spent fuel pool racks would have been filled.~- Even if true, the Colemans' assertion lacks any significance to the issues under review.

104/ The Colemans do not distinguish in this brief be-tween Salem Uni ts 1 and 2 ** However, this proceeding only involves the reracking for Unit 1.

105/ See Exhibit le at 1.

- 39 II.

The Colemans imply that there was some sort of collu-sion because ultimately only two of their contentions were the subject of evidentiary proceedings. The record does not support this assertion. As admitted by the Colemans, the number of contentions were reduced to 13 from 20 by their 106/

counsel, the Public Advocate.~- The Licensing Board's Order Following Special Prehearing Conference dated May 24, 1978 sets forth with specificity the reasons for accepting or rejecting the Colemans' proffered contentions. Since the Colemans assert no specific error in the Board's handling of any particular contention, and inasmuch as the Licensing Board's reasoning is set forth in its Order, no further discussion on this point is necessary.

On February 27, 1979, Licensee moved for summary dis-position regarding, inter alia, the remaining contentions of Mr. and Mrs. Coleman. On March 29, 1979, the Colemans' counsel filed a rather voluminous opposition to the motion for summary disposition which contained a discussion of the contentions, including an affidavit of their advisor, Mr.

Gregory C. Minor of MHB Technical Associates of Palo Alto, California. By Order dated April 30, 1979, the Atomic 106/ Amended Petition to Intervene (May 11, 1978). It should also be noted that counsel for the Colemans pursued the matter of contentions aggressively. For example, in response to a motion to reco.nsider the Board's Order Following Special Prehearing Conference, by Memorandum and Order*dated July 18, 1978, filed by counsel for the Colemans, the Board reconsidered and admitted a contention it had previously rejected.' Also, at least one of the original i3 contentions was with-drawn by the Colemans themselves.

Safety and Licensing Board granted summary disposition of all of the contentions filed by the Colemans with the ex-ception of Numbers 2 and 6. In its Order the Board gives a full exposition of its reasons for striking certain conten-tions. Other than a general dissatisfaction with the re-sult, the Colemans do not indicate any error in the Board's April 30, 1979 Order. The Board's Order ruling on the motion for summary disposition was proper in all respects 107/

and should be upheld.--

The Colemans imply some sort of bias and prejudice on the part of the Nuclear Regulatory Commission and the Li-censing Board, but set forth no specific facts to back up this assertion, only vague allusion to "an environment of 108/

approval."--

With regard to the Commission's Notice of Intent to 109/

Prepare GEIS,-- it should be noted that the Colemans never raised in this proceeding the application of the "five The Colemans state their "interest" was limited to Contentions 2 and 6. While this use of the term "interest" by a lay person is understandable, the Colemans were permitted to participate in all phases of the proceeding relating to all contentions and all Licensing Board questions.

• Colemans' Brief at 3. We interpret this to mean some sort of "institutional bias." This assertion is mani-festly insufficient to disqualify members of the Licens-ing Board. Dairyland Power Cooperative (La Crosse Boil-ing Water Reactor), ALAB-614, 12 NRC 347 (1980); Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-!), ALAB-224, 8 AEC 244, 246-48 (1974).

See note 81, supra. While the Commission found that there should not be a general deferral of all .licensing actions, it certainly did not make approval of individual requests automatic.

factors" contained in that Notice of Intent. As a result, they should be precluded from attempting to raise the issue at this time. In any event, they have pointed to nothing which would call into question any of the specific rulings 110/

of the Board or its Initial Decision.--

In Section II at page 2, the Colernans assert that the FGEIS on Spent Fuel is based upon erroneous information. As previously discussed, this final generic EIS is not part of the record in this proceeding. The Board merely noted its existence and did not rely on it. Furthermore, any error in that document has no relevance to this proceeding. The record is clear that the requested amendment was to permit a change from racks able to hold 264 spent fuel assemblies to new racks which are capable of holding 1170 spent fuel assemblies.

With regard to the letter from Congressman Hughes to a non-participant in this proceeding noted on page 2 of the Findings of Fact section, it is not a part of the record and is totally irrelevant. Furthermore, it is sheer speculation on the part of the Colernans that "confusing information must 111/

have been given" to Congressman Hughe_s . - - In summary, these matters bear absolutely no relevance to the Initial Decision in this matter.

110/ Licensee submits that, inasmuch as i t was not a con-tested matter, the Staff's balancing of the five factors need not have even been considered by the Licensing Board.

111/ Colemans' Brief, Findings of Fact at 2.

III.

In this section, the Colemans express their dissatis-:-

faction with the Atomic Safety and Licensing Board's treat-ment of certain correspondence between Public Service Electric 112/

and Gas Company and the Department of Energy.~- Examina-tion of these documents reveals nothing which contradicts or 113/

reflects adversely on the Licensing Board's Initial Decision.~-

The letter from Mr. Crockett was responsive to the DOE 1 s survey which was sent to a number of utilities. The Licensee's views as to a design specification for a hypothetical off-site storage facility appear to be the focal point of the Colemans' dissatisfaction. However, such matters are, on their face,* irrelevant to the proceeding, and the Colemans have failed to show otherwise. In any event, merely because the letter was not introduced into evidence is certainly no reason why the Colemans' counsel could not have used it during the cross-examination of Licensee (or Staff) wit-nesses. Furthermore, there was nothing preventing the Exhibits 9 and 10 for identification. The Licensing Board's Initial Decision is somewhat ambiguous in that i t does not distinguish between those exhibits which were merely identified and those which were made part of the record. However, examination of the tran-script (Tr. 398-99) .reveals that the authenticity of the two exhibits was established by stipulation. There was no motion to admit these exhibits into evidence and therefore no ruling on them.

113/ Licensee submits that counsel for the Colemans failed to preserve an exception relating to the two documents

• It never attempted to move them into evidence and so the Colemans are precluded from pursuing the matter.

114/

• Colemans from calling Mr. Crockett as a witness.~- Fur-thermore, the Colemans do not elaborate as to how these two documents could possibly demonstrate error in the Initial

.Decision.

IV.

The Colemans state that the Atomic Safety and Licensing Board sustained Licensee's objections to certain interroga-tories propounded by their counsel. However, they do not state how the Order concerning Licensee's objection to the 115/

interrogatories dated January 29, 1979 was in error.~- Nor have they shown how the discovery, if allowed, would have affected the Initial Decision.

In the second paragraph, Intervenors Coleman state it was the responsibility of the Licensing Board to inform them of their "rights." However, it is obvious that this is not 116/

a*function of the Board,~- which cannot act as a counsellor to a party or its advocate, particularly where'that party is represented by counsel.

In fact, Licensee had provided to the Colemans' counsel the name and professional qualifications of an employee of Public Service Electric and Gas Company who reported to Mr. Crockett and who was knowledgeable regarding the contents of the two letters. Tr. 373-75.

• 115/ In*fact, the Board required Licensee to respond to one of the interrogatories to which it had taken objec-tion. See Licensee's Response to Interrogatory No. 20 of Intervenor's First Set of Interrogatories to the Licensee (February 5, 1979).

116/ Thus, in Appendix A,Section II(a) (3), to its Rules of Practice, the Commission has itself stated that those permitted to intervene "have all the rights of the ap-plicant to participate fully in the conduct of the hear-ing." Those specific rights are fully delineated in Section V of Appenqix A.

• The example that the Colemans cite is their alleged right to have personal access to material covered by a pro-117/

tective order.~- There is no attempt to show that they had 118/

any legal right to examine this material personally~- or that they were prejudiced in any way. Their expert and counsel were given complete access to the information pur-suant to the agreement, the form of which was in fact agreed to by the Colemans' counsel.

In a related matter, intervenors allege they were "denied constitutional right of due process and excluded from Exxon conference during the proceeding with no right of 119/

review." This assertion is both factually and legally incorrect. Examination of the transcript of the in camera session held to consider the Exxon Nuclear Corporation's proprietary information makes it clear that the Board did not exclude the Colemans. At pages 4 and 5 of the in camera session transcript, it is clear that only "members of the public, including members of the press" were to be excluded.

See Protective Order issued by the Atomic Safety and Licensing Board on January 25, 1979, involving dis-closure to the Public Advocate and its consultant, MHB Technical Associates, of material proprietary to Exxon Nuclear.

118/ The usual form of a. protective order provides that only a party's counsel and experts who have a need to know shall be permitted access to the information.

Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-411, 5 NRC 1412, 1414 (1977).

See also Virginia Electric a.nd Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23, 29 n.7 (1979).

119/ Colemans' Brief at 4.

There is no mention of excluding the Colemans in the tran-script, and it is not clear who, if anyone, advised the Colemans to leave. In any event, they were fully repre-sented by counsel and an expert consultant at the in camera session of the proceeding. Subsequent to review of the transcript by Exxon Nuclear, it was determined that a total of seven lines on three pages contained proprietary infor-mation and the remainder could be released for general 120/

distribution.~- Moreover, in the interest of assuring as complete access to the record as possible for all members of the public, Licensee introduced into evidence Exhibit 5 which contained a non-proprietary version of Exhibit 3, the Fuel Storage Racks Corrosion Program, Baral-Stainless Steel.

Thus, the Board took pains to ensure that the public interest in full disclosure was effectively balanced with Exxon's rights regarding proprietary information. No-harm to the Colemans or error in the record has been demonstrated.

It is simply not clear what the Colemans are alleging in the fourth paragraph of Section IV of their findings of fact. The Licensing Board is bound to control the course of the proceeding and to specify the contentions of the parties which it accepted for litigation. If at any time the Colemans thought that matters affecting the public health and safety were beyond the scope of accepted contentions, they should 120/ See Tr. 704-05.

• have sought to amend the contentions to include these mat-ters as issues. There is no justification or warrant for the Colemans' statement that the Licensing Board had "planned conclusions prior to its hearing of the evidence in this proceeding."

v.

With regard to Section V, it is clear that limited ap-pearance statements are not part of the decisional record in 121/

this proceeding and can have no influence_ upon the outcome.

In any event, the Colemans never sought to raise these issues themselves during the course of the proceeding and no specific problem relating to this spent fuel pool is stated.

Certain assertions are made regarding the Turkey Point spent **fuel pool design and construction. These issues were never raised by the Colemans or anyone else during the course of the proceeding, and no reason is given why these matters could not have been raised before the Licensing Board. Furthermore, there is no showing whatever that the design of the spent fuel pools have any similarity or that any experience at the Turkey Point facility has any rele-vance to the Salem spent fuel pool.

VI.

In Section VI, the Colemans question the balancing of 122/

the so-called five factors in the EIA.~- However, the 121/ 10 C.F.R. §2.715(a}; Iowa Electric Light & Power Company (Duane Arnold Energy Center), ALAB-108, 6 AEC 195, 196 n.4 (1973).

• 122/ See page 40, supra.

Colemans fail to tie this to any of the issues in the proceeding 123/

or state how the Initial Decision was in error.

The Colemans' claims with regard to the FGEIS on Spent Fuel also lack merit. As mentioned, supra, this document was simply noted by the Licensing Board and was not relied upon. It was never an exhibit or introduced into the record of this proceeding.

The April 14, 1978 Grimes letter to which the Colemans refer was apparently for guidance regarding new applications for spent fuel storage. However, as of the April 14, 1978 date of that letter, the Licensee had already submitted its application. There is no showing that the information re-quested by the Staff in this docket and provided by Licensees was insufficient for the Licensing Board to rea-ch any of the 124/

conclusions it made with regard to contested issues.~-

The Colemans appear to attack the manner in which Keff was calculated in this proceeding. This matter was fully explored at the hearing through the testimony and cross-examination of Licensee's and Staff witnesses, including The Colemans never attempted to raise this issue during the proceeding even though the Staff's EIA

• which, inter alia, discussed the application of the five factors to this particular proceeding, was pro-vided to them on January 15, 1979, well before the evidentiary hearing which commenced on May 2, 1979.

The April 14, 1978 letter from Brian Grimes states that "[n]o additional regulatory requirements are im-posed or implied by this document." The cited para-graph is completely consistent with the analysis of criticality considerations in th.is proceeding. See Exhibit lC at 11-21; Exhihit 6B at 2-1 through 2-3; Tr. 655-59.

• cross-examination by the Colemans' counsel.

the Colemans now seek to introduce new matters.

Nevertheless, They state that the analysis of the Staff and the Atomic Safety and Licensing Board is in error because it ignored the fact that the spent fuel pool for Salem Unit 1 contains materials other than spent fuel assemblies. Although this information was provided to counsel for the Colemans on May 16, 1980, the Colemans have not sought to utilize this information 125/

provided by Licensee before this time.~- In any event, there is no showing how the criticality considerations could be affected by the presence of other materials in the spent fuel pool. In fact, criticality calculations were done for the most conservative cases, i.e., assuming new fuel, which is the most reactive. Thus, spent fuel has a much lower 126/

Keff. Furthermore, i t is easily discerned that none of the other items contain anything which would possibly contribute to increased criticality. Appellants have failed to show any error in the.Board's Initial Decision with regard to criticality considerations.

On page 8 of their Findings of Fact section, the Colemans allege that the Staff, Licensee and Atomic Safety and Licens-Counsel for the Licensee transmitted the information regarding Cycle 1 reflected in the table on p. 7 of the Colemans' brief to the Public Advocate in response to a request made directly by the Colemans to PSE&G's counsel.

126/ See Tr. 576-577.

- 49 -

ing Board did not make available to all parties a copy of certain procedures dated December 10, 1979, regarding under-127/

water installation procedures for the new spent fuel racks.~-

In fact, by letter dated December 13, 1979 to the Board and all parties, including Mr. and Mrs. Coleman and their counsel, the Licensee offered to make available its installation procedure regarding increased capacity spent fuel racks without conceding its relevance to the issues in the pro-ceeding. However, neither the Colemans nor their attorney requested the procedures from the Licensee. In any event, the quoted section from the installation procedures bears no relationship to any contested issue. Certainly, while the contents of the spent fuel pool must be moved to accom-modate the installation of new racks, the Colemans have not shown how burnable poison rods or control rods would in any 128/

way affect criticality considerations.~-

VII.

The first portion of Section VII deals with the "loss of water." This matter was discussed previously in response to LACT Exceptions 2, 3 and 4, which is incorporated by reference. The Colernans, like LACT, have offered no reason These procedures were required since this contested proceeding prevented Licensee from changing the racks while the spent fuel pool was in a dry, uncontaminated state prior to the completion of the first operating cycle.

128/ Again, by their nature, control rods and burnable poisons would tend to reduce Keff.

why a complete "gross loss of water" or the postulated partial "gross loss of water" should be considered for the 129/

spent fuel pool for Salem Unit 1.--- Nor have they shown that there is any credible method of causing such events.

In any event, the Board found that the treatment of this postulated occurrence was satisfactory and no further analysis was required.

The second part of this section deals with Keff calcu-lations as discussed in the Staff's standard review plan.

The plan states that the design practice has changed from 130/

permitting a Keff value of 0.90 to utilizing a Keff of 0.95-.--

However, the Colemans have failed to demonstrate that the Keff value of 0.95 is inadequate to assure prevention of criticality under all conditions. It would appear that the statement in Section VII about a reduction in spacing from approximately 20 inches to approximately 12 to 14 inches is addressed to racks not utilizing boral or other equivalent poison. In any event, there is no relevance to the Salem racks shown. The Keff of 0.95 or less has been more than adequately demonstrated for the 10.5 inch spacing used in 131/

the new Salem spent fuel racks.---

To the contrary, the quoted section of the Sandia Report in the first paragraph of Section VII- supports the proposition that neither "event" should be a de-sign basis accident.

The record indicates that this change was made on the basis of better calculational techniques which reduced the errors in calculations. This matter was briefly discussed on the record. See Tr. 452-54, 657-58.

131/ Exhibit lC at 11-21; Exhibit lD at 9; Exhibit 6B at 2-1 through 2-3.

- 51

• VIII.

This section appears to be made up of quotes from various NUREG documents, which, while accurate, are without any demonstrated applicability to the situation at Salem Unit 1. Nor do they contradict any of the Licensing Board's findings. Compliance with the criticality limits was demon-strated on the basis of calculations and assumptions ap-132/

propriate to the storage configuration at Salem Unit l.~-

There is no demonstration whatsoever that these analyses are in any way inadequate. The statements regarding decay heat are irrelevant to any issue in this proceeding. Nonethe-less, decay heat produced by spent fuel elements was taken 133/

into account in the criticality analysis.--

• IX.

Section IX refers to certain ongoing programs regarding optimization of fuel assemblies at Salem Unit 1. While the Colemans quote from different documents related to optimiza-tion of fuel and slight differences between fuel inserted in different cycles, there is no relevance shown to this pro-ceeding. The questions of slight changes in the fuel elements are covered by the implementation of .technical specifications requiring that the Keff be less than or equal to 0.95 at all 132/ Id.

133/ See Exhibit lC at 17-18. While not a contested issue, i t is noted that decay heat removal is discussed in Exhibit le at 25-:B"O and Exhibit 6B at 2-3 through 2-5.

times and that the maximum uranium loading of an assembly be less than or equal to 44.7 grams of U-235 per axial centi-meter of fuel assembly length which will assure that the Keff requirement is met.* So long as these criteria are met, slight differences in fuel makeup have no effect upon 134/*

the criticality calculations.~-

The Colemans have not shown that the change in the number of fuel assemblies from 52 to 64 to be loaded into the core will change any analysis or would lead to a dif-ferent conclusion by the Licensing Board. This change was part of the optimization of the third cycle resulting from operating experience and conditions encountered during the second cycle. Licensee's witness, Mr. Krishna, testified

• that enrichments and the number of fuel elements removed from the core are changed to attempt to accommodate past and 135/

predicted future operating conditions.~- All analyses regarding alternatives were based upon a minimum number of fuel assemblies changed in order that the estimated date upon which the spent fuel pool would be filled was as con-136/

servative as possible.~- Therefore, there is no error shown in the Initial Decision.

134/ Exhibit 6B at 2-2 through 2-3. A change to the tech-nical specifications would be required if these en-velope limits were changed.

135/ Tr. 1108-12.

It should be noted that calculations which consider replacement of approximately 65 assemblies are already in the record. Exhibit 6C at 2; Tr. 1104-1106. Operat-ing conditions during the present cycle will play a part (Footnote 136/ continued on next page)

x.

Contrary to the assertion of the Colemans, the fact that the spent fuel pool had an extremely small leak in a small part of the liner was not ignored by the Licensee or by the Staff: The Colemans' brief completely distorts the manner in which this minor leak in the spent fuel pool was brought to the attention of the Licensing Board during the course of the proceeding. The Colemans imply they were not informed about the leak and that the matter was only dis-covered by them-during a search of the local Public Document Room some time in February 1980. However, by letter dated January 22, 1980, the Licensee informed the Board and parties, including the Colemans, of the minor leakage. This

• was followed up by a letter dated February 20, 1980 to the*

Board and parties containing further details., The leak, less than 1.9 gallons per minute at its maximum, is extremely small in relationship to the makeup capability of the spent 137/

fuel pool.~- The level was always maintained in accordance with all applicable requirements. Moreover, the system utilized to detect the leakage worked as planned. The Colemans fail to link this minor leak with any issue in this proceeding. It is unclear what error they are alleging the Board made in its Initial Decision.

136/ (continued) in determining the number of fuel assemblies to be re-placed during the next refueling.

137/ Tr. 1462; Exhibit lD at 8. Subsequently, a steel plate was* welded* ove_r the -area .suspected of leaking.

XI.

The first paragraph of Section XI traces the manufac-ture of the poison material and the design and construction of the racks. The last sentence of the paragraph implies that the Licensee must repeat or check all criticality calculations. There is, however, no such requirement. In any event, no deficiency in the Exxon analysis has been shown. In addition, the Licensee has audited the quality

.138/

assurance program for the racks.~-

The next several paragraphs extending from the last full paragraph *On page 13 through the first full paragraph on page 15 relate to the possibility of degradation of the Boral that is the neutron poison in the new spent fuel

• 139/

racks.~- Yet, there is no reference to the Initial Decision and no attempt to show how the Licensing Board erred in its 140/

comprehensive findings on possible boral degradation.~-

Boral exposed to the spent fuel pool water may be subject to 141/

degradation,~- but such degradation of the aluminum matrix would not adversely affect the ability of the Baral material to absorb neutrons. Care has been taken to assure that the 138/ Tr. 490-91.

139/ This matter is properly the subject of proposed findings of fact before the Licensing Board ..

140/ Initial Decision at 5-16.

141/ Testimony of John R. Weeks following Tr. 652 at 3-4 and attachments to Weeks testimony; Exhibit 7; Exhibit 8.

welding procedures used during fabrication assure that the 142/

racks are leaktight.--

The Colemans' discussion of the testing done to assure leaktightness mischaracterizes the evidence. Sufficient examination of the spent fuel racks was done to assure that there is 95% probability of leaktightness with a 95% confi-dence level. This does not imply that any certain number of 143/

spent fuel elements will leak.~- All this means is that it is not statistically possible to prove by this testing alone that fewer than approximately 30 cells would leak.

However, all quality assurance measures taken should assure that the number of leaks, if any, would be substantially 144/

less.--

Contrary to the assertion on page 15, first paragraph, the use of boral for an extended period of time presents no 145/

unresolved questions and is not experimental.-- Further-142/ Exhibit 2, ,16; Exhibit lG at page 6.of attachment, Exhibit lH at page 7-10 (response to question).

143/ Tr. 599, 770-72.

144/ Tr. 770-71. Footnote 16 at page 14 of the Colemans' Brief erroneously mixes many concepts together. At the heart of the problem is the failure of the Colemans to distinguish between .the boron contained in the Boral sheets separating the spent fuel elements and the boron resulting from the presence of boric acid in the spent fuel pool water. All calculations with regard to criti-cality were done considering the fact that there was no boric acid or boron in the water surroµnding the spent fuel elements. The boron in the water is sufficient alone to prevent criticality in the spent fuel pool (Tr. 576-77).

145/ To the contrary, the use of stainless steel and boron carbide in environments significantly more severe than the Salem Unit 1 fuel pool is well documented (Testimony of John Weeks Following Tr. 652 at 1-4 and attachments thereto); Exhibit 7; Exhibit 8.

more, the Licensee has agreed to conduct a test program utilizing samples held in the fuel pool environment to as-146/

sure there is no deterioration of the racks over time.--

The Colemans completely disregard this program.

On page 15 the Colemans list a number of reportable occurrences which they state have occurred since August 1976 and were ignored by the Staff and Board. However, there is no indication of the subject matter of such reports nor any attE;mpt to tie these reports into the issues before the 147/

Licensing and Appeal Boards. This is the first time that these reports have been identified by the Colemans and i t is not clear what point is sought to be made.

The discussion on page 16 regarding a supposed "ad-mission" by an Exxon.witness again distorts the evidence.

The witness's testimony at that point did not concern the proposed racks as designed and constructed for the Salem Unit 1 spent fuel pool. The witness was responding to a hypothetical question as to any potential problem that could possibly occur if the racks were purposely vented at this 148/

time, action which was contrary to Exxon's recommendation.--

146/ Tr. 497-99; 515-16; Exhibit lH (Long Term Fuel Storage Cell Surveillance Program).

A brief review reveals that two relate to failure to meet technical specification requirements relating to tank levels, one relates to fan coolers in the contain-ment, one discusses a failure to conduct routine sur-veillance within the specified period, and the final one relates to a boron concentration of the reactors coolant system being below technical specification limits for a short period. None relate directly to criticality con-siderations in the fuel pool.

148/ Tr. 620-23; 627-31.

Instead, the course undertaken by the Licensee and approved by the Licensing Board was to maintain the cells in a sealed condition. Therefore, the witness's response to the hypothetical question was taken out of context. In any event, the Colemans have failed to demonstrate any signifi-cant shortcoming in the design of the racks or in the find-ings of the Licensing Board.

The last part of the discussion of Section XI beginning at the last paragraph on page 16 relates to the question of the "gross loss of water." Again, the Colemans mischarac-terize the testimony of the Staff witness. Dr. Benjamin testified repeated_ly that he disagreed with the "zirconium fire" theory advanced by Dr. Webb. The Board's basis for rejecting the need for further studies has previously been discussed and is fully set forth in the Initial Decision.

The Colemans point to no error in the reasoning of the Licensing Board and merely repeat verbatim certain testimony of Dr. Benjamin which was fully considered in the Initial Decision.

EXCEPTIONS Exceptions 1, 2, 3, 8, 9,. and 12 With regard to these exceptions, the Colemans simply rely on previously discussed sections. There is no further material added here which requires a response.

Exception 4 The Colemans again state that the Staff failed to ana-lyze or review information submitted by an individual making a limited appearance. However, from the statement of the matters contained in the Colemans' Brief, there is no indi-cation that the questions relate directly to any of the 149/

matters at issue before the Licensing Board.--

Exception 5 The Colemans correctly state that Public Service Electric and Gas Company owns a portion of the Peach Bottom Atomic Power Station, Units 2 and 3. However, this fact does not render any of the Licensing Board's ultimate conclu-sions any less valid. It is clear from the Initial Decision at page 24 that the Board relied upon the following Staff analysis in determining that storage at other reactors was not practical:

The Staff concluded that under these circumstances, Licensee could not pru-dently rely upon the Hope Creek units or any other power facility to provide additional storage when the Salem pool is filled. Since no testimony to the contrary was offered, we must agree with the Staff's conclusion [emphasis supplied].

Since the Board did consider other reactor sites, inde-pendent of ownership, its analysis was clearly sufficient.

149/ Colemans' Brief, Findings of Fact at 5. See also the discussion of "Finding of Fact V," supra.--

Neither before the Licensing Board nor on appeal have the Colemans indicated why *the Peach Bottom units are a suitable offsite location for the storage of Salem fuel. To the contrary, the Peach Bottom Atomic Power Station, Units 2 and 3, are boiling water reactors (BWR) with a different type and size of fuel and therefore have different storage 150/ ,

racks.~- Moreover, the Appeal Board may take official notice of the fact that there has been an amendment to the Peach Bottom Units 2 and 3 licenses which permitted in-151/

creased storage for BWR fuel at that site.~- Therefore, as a practical matter, since those pools are at their capacity for boiling water reactor fuel, they cannot be considered as a proper location for storage of pressurized reactor fuel from Salem Unit 1. There has been no showing that there is any usable storage space available at these units. In the absence of such an assertion and proof, there can be no error in the Licensing Board's finding regarding the fact that storage at units other than Salem Unit 1 or 2 is not a practical alternative to the expansion of the spent fuel pool.

See the discussion at Exhibit 6C at 17-18 regarding reasons why the spent fuel from Salem Unit 1 could not be stored at the Hope Creek Generating Station, also not a boiling water reactor.

Philadelphia Electric Company, (Peach Bottom Atomic Power Station, Units 2 and 3), Docket Nos. 50-277, 278, Amendment Nos. 49 and 48 to Facility Operating License, Nos. DPR-48 and DPR-56 (November 30, 1978).

Exception 6 The discussion in Exception 6 is only a general asser-tion of Board error and adds nothing to matters previously addressed herein. See also pages 5-10, supra, regarding the standard of proof in Commission proceedings.

Exception 7 Exception 7 relates to questions concerning the impact of the Three Mile Island accident upon its_ fuel pool. The Colemans did not discuss this subject in their proposed findings of fact and conclusions of law and no hint of any alleged error in the Board's decision was raised until these exceptions were filed. Therefore, the Colemans are barred from pursuing these particular exceptions upon ap-peal.

In any event, nothing in the exceptions constitutes reversible error on the part of the Licensing Board. The Colemans had more than adequate opportunity to cross-examine the witnesses of the Staff and Applicant with regard to their evaluation of Three Mile Island. It is clear that the evidence presented was the most probative and reliable available at the time from sources directly connected with the Three Mile Island facility. The quoted dialogue of Mr.

Donohue only shows that he thought some of the charts and tables accompanying his testimony might have been confusing; he felt that it was not necessary to make an exhaustive

study to adequately respond to the Licensing Board's ques-tion. There is nothing shown which would reflect adversely on the ultimate conclusions drawn by the Licensing Board.

The last quotation in Exception 7 relates to a state-ment of counsel, not of any witness. It indicates that while the Staff had every belief that the figures were accurate, it could not at that time verify exactly who made each measurement. However, there is no reason to believe, and none has been shown by the Colemans, that the figures given were incorrect. Owing to the different layout at Salem and the attention given to shielding pipe runs and equipment, it was not necessary, in any event, to calculate or know exact dose rates in order to assure that the spent fuel pool at the Salem facility would not have been affected adversely in a significant manner if an accident like the 152/

TMI-2 occurrence were postulated to have occurred at Salem.--

Exception 10 There is no further argument presented which requires a response. See also discussion at pages 31-33, supra.

. Exception 11 The status of the four listed publications cited in Exception 11 has been previously discussed. The Colemans Tr. 1292-95; 1320-22. See also Licensee's Response to Licensing Board's Question 1 and Part 1 of Question 3 Relating to Impact of a Three Mile Island Type Incident on the Salem Unit 1 Spent Fuel Pool, transcript follow-ing l264 and NRC Staff Response, in Part, to Board Questions, ~ranscript following 1133.

have not demonstrated that there was error because these were not made part of the record. However, it should be noted that the first publication, regarding the intent to prepare a generic EIS was referenced in the Staff EIA and 153/

fully discussed therein.~- Staff publication NUREG-0404 was available to the Colemans and was utilized by their 154/

counsel at the hearing.~- In addition, the Staff promptly 155/

made NUREG-0575 available to all parties.~-

Colernans' Conclusions of Law Only brief comment regarding the conclusions of law outlined in the Colemans' brief is necessary. While in sub-section (a) they allege the license amendment is a commis-sion [Federal?] action significantly affecting the quality of the human environment, no specific error is assigned to any Board finding regarding environmental impact or com-156/

pliance with the procedural requirements of NEPA.~-

Subsection (b) addresses the FGEIS on Spent Fuel yet this document was never made part of the record and, there-fore, any alleged deficiencies in its content are plainly irrelevant. As noted, the Board merely mentioned its existence in its Initial Decision.

153/ EY.hibit 6C at 22-26.

154/ Tr. 635.

155/ Letter from Barry Smith to the Licensing Board, dated August 31, 1979 .

156/ See also discussion at pages 28-36, supra.

Subsection (c) seeks to impose requirements for which there is no legal or factual basis. As previously discussed regarding the Colemans' propos'ed Findings of Fact, no harm-ful error has been assigned to any aspect of the Initial Decision, and there is no warrant for further review or the imposition of further conditions.

Subsection (d) again analyzes Mr. Crockett's letter.

For the reasons discussed, supra, there is no reason to remand the proceeding to consider this matter anew. Similar-ly, there is no showing that the Board's review did not meet all the requirements of NEPA. The remaining paragraphs of subsection (d) appear to be a diatribe against the NRC and its decision-making process. However, no error on the part of the Licensing Board requiring reversal or remand is mentioned . .

In summary, contrary to the assertions of the Colemans, the Atomic Safety and Licensing Board has adequately weighed the evidence before it. Its conclusions as contained in the Initial Decision are overwhelmingly supported in their en-tirety in each aspect challenged by the Colemans. Thus, the Colemans have given no reason why the Initial Decision should not be upheld *

.... ...~,

CONCLUSION For the reasons discussed, all exceptions should be denied and the Atomic Safety and Licensing Board's action in authorizing the requested operating license amendment to permit the storage of 1170 spent fuel elements in the Salem Unit 1 spent fuel pool should be affinned.

Respectively submitted, CONNER & MOORE Mark J. Wetterhahn Counsel for the Licensee Of Counsel:

Richard Fryling, Jr.

Public Service Electric and Gas Company 80 Park Plaza Newark, New Jersey 07101 I_

February 17, 1981