ML19253C816
| ML19253C816 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 11/30/1979 |
| From: | Christman J, Maupin M VIRGINIA POWER (VIRGINIA ELECTRIC & POWER CO.) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19253C817 | List: |
| References | |
| NUDOCS 7912120169 | |
| Download: ML19253C816 (58) | |
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NUCLEAR REGULATORY COMMISSION #
N os BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
) Doc. Nos. 50-338 SP VIRGINIA ELECTRIC AND POWER COMPANY) 50-339 SP
)
(North Anna Power Station, Units ) (Proposed Amendment to 1 and 2) ) Operating License NPF-4)
VEPCO'S BRIEF IN OPPOSITION TO INTERVENORS' EXCEPTIONS Of Counsel:
Hunton & Williams Michael W. Maupin 707 E. Main Street James N. Christman P.O. Box 1535 James M. Rinaca Richmond, VA 23212 707 E. Main Street P.O. Box 1535 Richmond, VA 23212 November 30, 1979 1539 245 7912120/67
k.
9 TABLE OF CONTENTS STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . 1 COUNTERSTATEMENT OF THE CASE . . . . . . . . . . . . . . 2
SUMMARY
OF ARGUMENT. . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 8 Introduction . . . . . . . . . . ....... 8
- 1. Materials Integrity. . . . . . . . . . . . .10
- a. Concrete . . . . . . . . . . . . . . . .11
- b. Liner and Cladding . . . . . . . . . . .15 (1) The in te rveno r s ' bases for the con-tention do not satisfy 10 C . F. R.
S 2.749(b). . . . . . . . . . . . .15 (2) The intervenors did not ask the ASLB to consider their interrogatory answe r s . . . . . . . . . . . . . .18 (3 ) The inte rv eno r s ' statements of fact do not take issue with Vepco's case. . . . . . . . . . . . . . . .21 (a) The intervenors do not suggest tha t the consequences of leak-age would be significant. . . .21 (i) Cladding . . . . . . . . .21 (ii) Pool liner . . . . . . . .22 (b) The intervenors' alleged facts are so general and so inconclu-sive that they simply do not meet the specific facts of North Anna head-on. . . . . . .23 (4) The materials integrity issue has been litigated before. . . . . . . .25 1539 246
. (ii)
- 2. Alternatives (Weitzman Af fidavit) . . . . . .26
- 3. Service Water Cooling System . . . . . . . .30
- 4. Alternatives ( ASLB 's Independent Duty). . . . . . . . . . . . . . . . . . . 32
- a. No duty to consider alternatives to so minor a proposal. . . . . . . . . . .33
- b. No duty to consider unreasonable alte r natives . . . . . . . . . . . . . .34
- 5. Inadequate Detail in ASLB Decision . . . . .36
- 6. State of Minnesota v. NRC. . . . . . . . . .36
- 7. Abbreviated Schedule . . . . . . . . . . . .38
- a. The intervenors haven't shown that they were prejudiced by the schedule . .39
- b. The intervenors didn' t demonstrate their need for more time . . . . . . . . . . .41
- c. The public interest favored a speedy decision. . . . . . . . . . . . .44 CONCLUSION AND PRAYER FOR RELIEF . . . . . . . . . . . .47 Appendix A - ASLB 's Decision Appendix B - Intervenors' Answers to Motion for Summary Disposition Appendix C - Potomac Alliance's Pleadings on Materials Integrity Appendix D - Decision in Garrett v. NRC Appendix E - Potomac Alliance's Pleadings on Alternatives Appendix F - Weitzman Af fidavit Appendix G - Potomac Alliance's Pleadings on Service Water Cooling System Appendix H - Informal Discovery Letters 1539 247
(iii)
TABLE OF AUTHORITIES CITED Cases Page Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility) , ALAB-296, 2 NRC 671 (1975). . . . . . . .44 Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 1), ALAB-231, 8 NRC 663 (1974) . . . . . . . . . . . . . . . . . . . . . . 39 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2),
ALAB-443, 6 NRC 741 (1977) . . . . . . .16, 17, 18, 48 Cleveland Electr ic Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2),
ALAB-449, 6 NRC 884 (1877) . . . . . . . . . . . . .18 Consolidated Edison Co. of New York, Inc.
Indian Point, Units 1, 2& 3),
ALAB-377, 5 NRC 390 (1977) . . . . . . . . . . . 42-43 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, (1978) . . . . . . . . . . . . . . . . . . . . . . .29 Duquesne Light Co. (Beaver Valley Power Station, Unit 1), LBP-78-16, 7 NRC 811 (1978), affirmed, ALAB-484, 7 NRC 984 (1978) . . . . . . . . . 9, 26, 34 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3 (1975) . . . . . . . . . . . . . . . . . . .19 Garrett v. NRC, Civ. No.78-269 (D. Ore. 1978) . . . . .16, 17 Gulf States Utilities Co. (River Bend Station, Units 1 & 2), LBP-75-10, 1 NRC 246 (1975) . . . . . . . . . . . . . . . . . . . . . . .32 1539 248
- (iv)
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1)
A LAB-3 03 , 2 NRC 858 (1975) . . . . . . . . . . . . . .39 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1
& 2), ALAB-244, 8 AEC 857 (1974) . . . . . . . . . 19-20 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1
& 2), ALAB-419, 6 NRC 3 (1977. . . . . . . . . . . . .44 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 &
2), ALAB-455, 7 NRC 41 (1978). . . . . . . . . . . 9, 34 NRDC v . Mor ton , 458 F.2d 827 (D.C. Cir. 1972). . . . . . . . .34 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), ALAB-263, 1 NRC 208 (1975) . . . . . . . . . . . . . . . . . . .20 Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2& 3 ) , ALAB-562, 10 NRC (1979). . . . . . . . . .48 Portland General Electric Co. (Troj an Nuclear Plant), LBP-78-32, 8 NRC 413 (1978) . . . . . . . . . . . . . . . . .16, 25 Portland General Electric Co. (Trojan Nuclear Plant) , ALAB-531, 9 NRC 263 (1979), review declined ,
Commission Memorandum and Order of October 18, 1978 . . . . . . . . . . . 9, 25, 33-34, 35 Potomac Electric Co. (Douglas Point Nuclear Generating Station, Units 1 & 2),
ALAB-277, 1 NRC 539 (1975) . . . . . . . . . . . . . .44 Public Service Company of Indiana, Inc.
(Marble Hill Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179 (1978) . . . . . . . . . . . . . . . . . . . . . 43 State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979) . . . . . . . . . . 2, 8, 9, 24, 34, 37 1539 249
(v)
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1D, 2B ) , ALAB-4 6 3, 7 NRC 341 (1978). . . . . . . . . . . .20 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
affirmed, ALAB-455, 7 NRC 41 (1978) . . . . . . . . . . . . . . . . . . . . . . 9, 26 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). . . . . . . . . . . . . . . . . .34 Virginia Electric and Power Co. (North Anna Power Station, Units 1 & 2),
ALAB-568, 10 NRC (1979). . . . . . . . . . . . . .4 Statutes National Environmental Policy Act of 1969 (NEPA). . . . . . . . . . . . . . 1, 2, 27, 28, 32 42 U.S.C. S 4332(2)(C) . . . . . . . . . . . . . . . .33 42 U.S.C. S 4332(2)(E) . . . . . . . . . . . . . . . .33 Regulations 10 CFR S 2. 710 . . . . . . . . . . . . . . . . . . . . . .38, 41 10 CFR S 2.711(a). . . . . . . . . . . . . . . . . . . . . . .44 10 CFR S 2.749 . . . . . . . . . . . . . . . . 3, 12, 15, 19, 38 10 CFR S 2.762 . . . . . . . . . . . . . . . . . . . . . . . . 4 Other Authorities 42 Fed. Reg. 44616 (1977). . . . . . . . . . ........ 8 43 Fed. Reg. 2025 (1978) . . . . . . . . . . . . . . . . . . . 8 43 Fed. Reg. 45483 (1978). . . . . . . . . . . . . . . . . . . 8 43 Fed . Reg . 46912 (1978). . . . . . . . . . . . . . . . . . . 8 1539 250
. (vi) 4 4 Fed . Reg . 4 76 5 7 (1979).
. . . . . . . . . . . . . . . . . . 4 44 Fed. Reg. 50106 (1979). . . . . . . . . . . . . . . . . . . 4 44 Fed . Reg . 61372 (1979). . . . . . . . . . . . . . . . . . .38 NUREG-0053 (1976). . . . . . . . . . . . . . . . . . . . . . .15 NUREG-0404,(1978). . . . . . . . . . . . . . . . . . . . 15, 16 NUREG-0575 (1979). . . . . . . . . . . . . . . . . . . . . . . 8 1539 251
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In tne Matter of )
) Doc. Nos. 50-338 SP VIRGINIA ELECTRIC AND POWER COMPANY) 50-339 SP
)
(North Anna Power Station, Units ) (Proposed Amendment to 1 and 2) ) Operating License NPF-4)
VEPCO'S BRIEF IN OPPOSITION TO INTERVENORS' EXC EPTIONS STATEMENT OF THE ISSUES
- 1. Whether the atomic safety and licensing board
("the Board" or "the ASLB") erred in finding that there exists no gentline issue of material fact with respect to the in te rveno r s ' contention about " Materials Integrity," which raises the issue of possible corrosion, cracking, and leaking of the spent fuel cladding and the spent fuel pool liner;
- 2. Whether the af fidavit of Dr . Phillip M. Weitzman raises a material issue of fact about the thoroughness with which alternatives to the proposed fuel pool modification should have been investigated under the National Environmental Policy Act of 1969 ("NEPA");
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4
- 3. Whether the Board erred in finding that there exists no genuine issue of material fact with respect to the
" Service Water Cooling System" contention, which alleges that the adequacy of the systems that cool the water in the spent fuel pool should be more thoroughly investigated;
- 4. Whether the Board and NRC Staff ("the Staff")
failed to consider the three alternatives proposed by the intervenors thoroughly enough to satisfy NEPA;
- 5. Whether the Board failed to explain its decision b1 sufficient detail;
- 6. Whether the Board erred by refusing to consider long-term storage of nuclear fuel in light of the recent case State of Minnesota v. NRC; and
- 7. Whether the Board abused its discretion and denied the intervenors due process of law by giving them inadequa te time to prepare their case.
COUNTERSTATEMENT OF THE CASE The background of this case is essentially as stated on pages 1-4 of the intervenors' "Br ief on Exceptions," dated October 26, 1979. On May 1, 1978, the applicant, Virg in ia Electric and Power Company (Vepco), appliedl to the NRC for 1/The application (hereinaf ter "Vepco's application") is entitled " Summary of Proposed Modifications to the Spent Fuel 1539 253
an amendment to the operating license for the North Anna Power Station, Unit 1, to permit the installation and use of high-density spent fuel storage racks in the spent fuel storage pool for North Anna Units 1 and 2. The fuel pool was at that time licensed to hold 416 fuel assemblies and would have had an actual capacity, with the old fuel racks, of 400; the new racks were to expand the capacity of the fuel pool to 966. The Potomac Alliance and the Citizens' Energy Forum
("the intervenors") became parties, both of them opposing the high-density racks .
On May 4, 1979, the ASLB scheduled a public hearing for June 26, 1979. (This was subsequently postponed.) In order to comply with the 45-day rule for summary disposition motions under 10 CFR S 2.749, Vepco filed such a motion, asking that all the issues in the proceeding be resolved summar ily in its f avor , on May 11, 1979. The NRC Staff supported Vepco's motion. Between June 5 and July 23 the Citizens' Energy Forum filed an answer and the Potomac Alliance three answers to Vepco's motion. Af ter considering (Continued from previous page)
Storage Pool Associated with Increasing Storage Capacity,"
Apr il 197 8. It was put into the record with "Vepco's Motion for Summary Disposition" as part of the Af fidavit of H. Stephen McKay and again as Attachment A to "Vepco's Testimony on High-Density Spent Fuel Storage Racks," June 23, 1979.
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these answers, the Board granted Vepco's motion in its entirety.2 The ASLB having rendered its decision, the NRC Staff issued the requested license amendment,3 and Vepco began installing the high-density racks; the first rack went into place on August 18 and the last rack on September 11. Spent fuel was first stored in the new racks Octcber 17,4 and there are 52 irradiated assemblies there now.
The intervenors appealed the ASLB 's decision and !
filed their brief on October 26, 1979 (hereinafter ceferred to as "Intervenors' brief"). This is Vepco's b.:ief in l
opposition to the intervenors' exceptions, filed in accordance with 10 CFR S 2.762(b) and ALAB-568 (October 29, i 1979).
N 2/" Board Decisions ," 4 4 Fed . Reg . 47657 (August 14, 1979); '
" Order Granting VEPCO's Motion for Summary Disposition,"
August 24, 1979, supplemented by " Addendum to Order Granting VEPCO's Motion for Summary Disposition," August 25, 1979.
3/4 4 Fed . Reg . 50106 (August 27, 1979).
4/In "Vepco's Answer to Intervenors' Statement of Exceptions," August 27, 1979, Vepco indicated that it would be moving spent fuel into the pool about 7 days after September 15, 1979. Subsequently Vepco's management made the decision to ask the NRC for permission to operate the unit a bit long er ; that is why fuel was not actually moved into the pool until Oc tober 17.
1539 255
SUMMARY
OF ARGUMENT Vepco will argue below that the ASLB was correct to resolve the issues in this proceeding summarily. The applicant's and the NRC Staff's affidavits demonstrate that there is no material issue of fact, and the intervenors have failed to show anything that suggests the contrary.
The in te rv eno r s ' first argument is that the spent fuel and the fuel pool liner may not be able to withstand the increased heat and radiation resulting from the modification.
The intervenors refer to excerpts from technical papers outside the record to support this contention but do not offer the papers themselves or any expert to sponsor them.
Moreover, the intervenors did not ask the licensing board to consider those documents and so should not be allowed to rely on them now. More important, the statements cited by the inte rveno r s , 2ven 11 accepted as true without any evidentiary basis, only go to prove that radiation and heat contribute to corrosion and that actual experience with underwater storage of spent fuel elements is limited to perhaps 20 years' time.
Even if one accepts these statements as true, they do not contr ad ict the substance of Vepco's and the Staff's case, which is to show (1) that, based on both experience and calculations, the amount of corrosion over the lifetime of 1539 256
the operating license is expected to be small and (2) that even if corrosion-caused leakage should occur, the consequences would be minor. Nothing on the record, Vepco believes, contradicts these assertions.
The intervenors' second argument is that the affidavit of their economic consultant raises a material issue about alternatives to the high-density racks. The affidavit says that the affiant cannot determine, because of insuf ficient data, whether the proposed modification is the least expensive way of dealing with the spent fuel storage problem. Assuming this raises an issue at all, it is an immaterial one, because alternatives that offer no benefit to the environment need not be considered; the intervenors have said nothing that suggests their proposed alternatives would be environmentally better than the high-density racks.
With their " Service Water Cooling System" contention, and their third argument, the intervenors assert there is a mate r ial issue over whether the spent fuel pool cooling system can adequately maintain the temperature of the pool water below 140'F for the normal case and 170 *F for the abnormal ( full-core discharge) case. The only basis for this contention is that during the course of the proceeding Vepco discovered that under very unlikely, worst-case circumstances 1539 257
(including a loss-of-coolant accident) it would have to run two fuel pool heat exchangers, instead of j ust one, for four or five days. Since there is no regulatory requirement that there be 100% redundancy in the fuel pool coolers, and since even a total failure of the cooling system would not prevent Vepco from supplying suf ficient make-up water to the pool, there is no material issue.
In their fourth argument, again on " Alternatives,"
the intervenors argue that the Board f ailed to fulfill its duty to independently consider alternatives to the proposed mod ification . But no consideration of alternatives is required for spent fuel pool modifications, such as this, that neither harm the environment nor involve unresolved conflicts over alternative uses of resources. In any event, the NRC Staff has considered the alternatives, and the record shows them to be unworthy of more detailed invest ig atio n .
In their fif th argument the intervenors contend, without of fering specifics, that the Board inadequately explained its decision. It is true that a licensing board must detail its findings adequately to enable others to apprehend the foundation of the ruling, but this the ASLB did. The reason its opinion is no more detailed is that the intervenors failed to present any material evidence for the Board to discuss.
1539 258
In their sixth argument the intervenors say that the recent case State of Minnesota v. NRC required the licensing board to address the long-term storage of spent fuel. The Commission has said the contrary in its notice of proposed rulemaking on the storage and disposal of nuclear waste, dated October 18, 1979.
Finally, the intervenors argue that the licensing board did not give them enough time to prepare their case.
Ye t the Board gave them more time than they asked for discovery, and when it granted over three weeks at their request, they f ailed to use the time. Nor did they inform the Board of the need for more time that they now claim.
Finally, any inconvenience that the intervenors may have suf fered was justified by the need for a speedy decision in order to avoid unnecessary radiation exposure to the workers at the station.
ARGUMENT Introduction This is a routine case involving nothing more than the use of new spent fuel storage racks with a different center-to-center spacing than the already-licensed racks.
Over 30 similar amendments have been issued for other power plants 5, and a generic environmental impact statement on spent fuel storage has now been published 6 ; indeed Vepco 5/See, e.g., 43 Fed. Reg. 46912 (1978); 43 Fed Reg. 45483 (1978); 43 Fed. Reg. 2025 (1978); 42 Fed. Reg. 44616 (1977).
6/ Final Generic Environmental Impact Statement on the Handling and Storage of Spent Light Water Power Reactor Fuel, NUREG-0575 (August 1979).
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itself has expanded the capacity of its Surry Power Station fuel pool. Four fuel pool modifications have been approved by the Appeal Board.7 The one legal issue of any significance, raised by State of Minnesota v. NRC (see
- below), has now been resolved by the Commission. Nor do the intervenors give any good reason why an evidentiary hearing should be held in this proceeding. They argue that they have been given too little time and too little information, but nowhere do they give a clear idea of what they hope to prove if a hearing is held.
On appeal the intervenors have chosen to pursue only three of their contentions (Materials Integrity, Alternatives, and Service Water Cooling System), and we understand the intervenors to have essentially abandoned the others (although they argue that the ASLB's decision was inadequate with respect to all the contentions)*. We are 7/ Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-531, 9 NRC 263 (1979), review declined , Commission Memorandum and Order of October 18, 1979; Duquesne Light Co .
(Beaver Valley Power Station, Unit No. 1), ALAB-484, 7 NRC 984 (1978); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978);
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-455, 7 NRC 41 (1978). The Prair ie Island and Vermont Yankee proceedings eventually reached the D.C.
Circuit Cour t of Appeals and became State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979).
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left, then, with seven arguments involving three contentions; we will deal with the arguments one by one below.
- 1. Materials Integ rity The Alliance's " Materials Integrity" contention is the following:
Intervenor contends that increasing the inventory of radioactive materials in the spent fuel pool will increase the corrosion of, the stress upon, and resultant problems concerning the components and contents of the pool. The Applicant has not adequately addressed such potential problems with respect to:
(a) the fuel cladding, as a result of exposure to decay heat and increased radiation levels during extended periods of pool storage; and (b) the racks and pool liner, as a result of exposure to higher levels of radiation during pool storage.
All the intervenors' assertions of fact on this issue occur in their answers to in te r r og a to r ie s ,
particularly the Staf f's interrogatory 4-6. Being as f air as we can, we find essentially four allegations of fact in those documents:
- 1. Heat and radiation increase corrosion, and the heat and radiation in the North Anna fuel pool will increase because of the proposed mod ifica tion .
- 2. Present experience with pool storage of spent nuclear fuel has relied on short-term experience and inadequate methods of observation; long-term study of underwater storage is recommended .
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- 3. Spent fuel pools in three nuclear power plants have suffered leaks from unknown causes.
- 4. The American Concrete Institute has set a limitation of 150'F as the maximum operating temperature for fluids kept in safety-related concrete structures.
Vepco submits that none of these raises a material issue.
- a. Concrete.
In the first place, the intervenors' suggestion that the 170'F design criterion for the abnormal condition at North Anna 1 will violate an American Concrete Institute standard of 150*F is outside the scope of the contention. The " Materials Integrity" contention, set out above, refers specifically to the fuel pool liner, the fuel racks , and the fuel cladding , but it is silent about concretc.8 The intervenors stipulated the contention and 8/The effect of heat on concrete was one of the contentions we would have thought were abandoned during negotiations.
Contention 30 in the Potomac Alliance's " Amendment to Petition for Leave to Intervene" of August 24, 1978, was this:
- 30. Applicant has not provided suf ficient data on the decreased safety margins due to the increased radioactivity and decay heat load to be caused by the proposed expansion of the spent fuel storage invento ry:
a) Applican t should specify the various decreased safety margins expected for each of the components of the spent fuel pool, including but not limited to:
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4 never asked to have it amended, even though the Stipulation of Contentions expressly allows amendment for
" good cause."
In the second place, the reference to the American Concrete Institute standard is not such a fact "as would be admissible in evidence," see 10 CFR S 2.749(b) . The intervenors do not offer the text of the standard for the record, only their own paraphrase of it. They offer no affiant competent to testify about concrete (see [d.), no one to say whether the intervenors are interpreting the standard correctly. In particular, the intervenors do not specify whether the 150' standard applies to normal or abno rmal (that is, full-c. ore discharge) conditions; if to normal, the 140" limit at North Anna meets the standard.9 (Continued from previous page)
- 1. the rocks [ racks?)
- 2. the liner
- 3. the concrete Counsel for the Potomac Alliance explained at the prehearing conference the give-and-take process by which the Alliance had dropped some of its contentions in the process of reaching agree-ment on the Stipulation of Contentions. Transcript of prehear-ing conference, Charlottesville, Virginia, March 29, 1979, at Tr.
173-74. Vepco concludes that the issue about the concrete is no longer a part of the contention.
9/What the Potomac Alliance said in its answer to Vepco inter-rogatory 3.6 is this:
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In the third place, the 150' standard is immaterial, based on our record, because the record shows tha t the pool water will not get substantially higher than 150*F. It is calculated to get no hotter , even in the
- event of a loss-of-coolant accident in the reactor, than 135.4*F for the normal case and 154.2*F for the abnormal case, provided one pump and two heat exchangers are used .10 (See Vepco's application, Table 7-1. ) These (Continued from previous page)
The American Concrete Institute has established strict limits on the temperature of f3 uids retained within safety-related concrete structures. See American Concrete Institute, Code Requirements ror Nuclear Safety Related Concrete Structures, ACI 349-76. The ACI's principal limitation sets 150 degrees F as the maximum operating temperature. See App. A, 1978 Supplement at A. 4.1.
What A.4.1 (which is not in the record) says is this:
The following temperature limitations are for normal operation or any other long term period. The tempera-tures snall not exceed 150 F except for local areas . . . .
ACI 349-76, App. A, 1978 Supp., A.4.1 (emphasis added).
We do not, however , think it appropr iate to go outside the record in this manner. If despite our arguments the Appeal Board thinks the ACI standard may raise a material issue, Vepco would be pleased to submit an affidavit explaining the 150 standard, and the intervenors could of course be given the opportunity to respond.
10/If two pumps and two heat exchangers are used, the pool water temperature rises no higher than 144.9*F even in the abnormal case (Vepco's application, Table 7-1).
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calculations are highly conservative, and actual operating temperatures at Vepco's Surry Power Station, which is of similar design, have been significantly lower than calculated.ll The Staff notes that 120*F is the generally observed maximum fuel pool temperature in practice.12 Moreover, the structural analysis of the North Anna pool assumed a temperature of 177.5'F.13 Finally, in arguing that the temperature criterion of 170 *F violates a particular standard the intervenors raise an issue not properly presented by the license amendment. The 140* and 170 criteria are the same whether the high- or the low-density racks are used. The intervenors insisted as early as the first conference that they wished to litigate only the incremental effects of the proposed modification, and they should be held to that commitment now.14 11/Vepco's application at 21, 48.
12/Af fidavit of George B. Georg iev , M.D. Houston, and Jared S. Wermial on Contentions Regarding Materials Integrity and Corrosion June 1, 1979, at 2-3, attached to "NRC Staff Response t1 Vepco Summary Disposition Motion," June 5, 1979.
13/Af fidavit of H. Stephen McKay, May 11, 1979, at 2, attached to "Vepco's Motion for Summary Disposition,"
May 11, 1979.
14/See Transcript of conference of September 8, 1979, Charlottesville , Virg inia , Tr. 24, 46-51.
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- b. Liner and Cladding .
Unlike the concrete, the corrosion of the zircaloy fuel cladding and stainless steel liner is properly at issue in this proceeding . But the intervenors have failed
- to produce any evidence that throws doubt on the integrity of those materials over the life of the operating license.
(1) The intervenors' bases for the contention do not satisfy 10 CFR S 2.749(b) . That regulation says that:
( b) Affidavits shall set forth such facts as would be admissible .in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The presiding officer may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or further affidavits. When a motion for summary decision is made and supported as provided in this section, a party oppocing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided in this section must set forth specific facts showing that here is a genuine issue of fact.
The intervenors' statements of fact are paraphrases of statements from documents outside the record and are not sponsored by competent experts.15 15/The intervenors rely on the following documents:
NUREG-0404; Vepco's application; the Staf f's Safety Evaluation; NUREG-0053; A. B. Johnson, Jr., " Behavior of Spent Nuclear Fuel in Water Pool Storage," September 1977, BNWL-2256, UC-70; A. S.
Benj amin , e_t_ al . , " Spent Fuel Heatup Following Loss of Water During Storage," Sandia Laboratories, September 1978, SAND-1371 (Draft); Z. A. Munir, " An Assessment of Long-Term Storage of 1539 266
The intervenors would argue that this makes no difference, since the Perry 1 & 2 decision, Cleveland (Continued from previous page)
Zircaloy Fuel Rods in Water," University of California at Dav is , # 154-036, October 1977; and D. R. Mash, Affidavit filed in Garrett v. U.S. Nuclear Regulatory Commission (D. Ore.,
Marcn 27, 1978). See " Potomac Alliance Responses to the NRC Staf f's Interrogatories and Request for the Production of Documents," May 30, 1979, at 11-12.
That a lice.nsing board cannot safely rely on such out-of-context statements is shown by this very case. For example, the intervenors rely on NUREG-0404 for the proposition that corrosion is a problem to be overcome, without mentioning that the same document concludes that the storage of spent fuels in water pools has an insignificant impact on the environment (NUREG-0404 at S-3; see also id . ES-ll).
The intervenots cite a 1977 article by A. B. Johnson for the proposition that corrosion problems have potential significance for 20- to 100-year storage, but they do not point out that it appears to be the same Dr. Johnson who testified in support of the fue. expansion in the Troj an proceeding. See Portland General Electr ic Co. (Tro]an Nuclear Plant), LBP-70-32, 8 NRC 413, 422 (1978). And a 1978 article by Dr . Johnson, which Vepco provided in response to an intervenor interrogatory, says that slow degradation mechanisms cannot be fully ruled out but " appear to be unlikely." A. B.
Johnson, Jr., " Utility Spent Fuel Storage Experience" (1978), at 13, attached to "Vepco's Answers to Potomac Alliance Inter rogato r ies ," June 20, 1979. Even the very 1977 article relied on by the intervenors itself does not support their position, but it requires going outside our record to show it.
In that paper Dr . Johnson concludes ( at page 4 ) that "there is suf ficient evidence of satisfactory integrity of pool-stored fuel to warrant extending fuel storage times and expanding fuel storage capacities." Dr. Johnson's point was only that exploratory examination of pool-etored fuel is warranted, and that unless evidence of degradation develops in exploratory investigations, a surveillance program involving large numbers of bundles is not j ustified (pages 3, 4).
Likewise , the Benj amin paper , also not in the record, sup-ports Vepco's position by concluding that coolability in a drained spent fuel pool can be maintained " indefinitely" by pr ov id ing a wa te r spr ay . A. S. Benj amin et al . , Spent Fuel 1539 267
Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1
& 2 ) , ALAB-4 43, 6 NRC 741 (1977), says that the f ailure to submit evidence is not necessarily fatal to an intervenor.
But Perry 1 & 2 has no bearing here. In that decision the
. Appeal Board reversed a licensing board's grant of summary disposition on a geologic issue because a geologic report, on which both the applicant's case and the Staf f's analysis depended, had not been supported by the affidavit of an expert competent in geology and engineer ing. Thus neither the applicant's nor the Staff's motions for summary disposition were suf ficient, even in the absence of contrary evidence from the intervenors.
(Continued from previous page)
Heatup Following Loss of Water During Storage, NUREG/CR-064 9, SAND 77-13 71 (March 1979) at 87. (Vepco's counsel does not have the draf t report to which the intervenors refer.)
As for the Mash af fidavit, the Distr ict Cour t's opinion in Garrett v. NRC, attached to this brief as Appendix D, says that Dr. Masn pointed out no instances of stress corrosion occurring in a spent fuel pool and that he had "not raised a substantial question whether extended storage of spent fuel at the Trojan spent fuel pool would cause a significant degradation of some human environmental factor due to stress corrosion." App. D at 3, 6.
Having said all this, we must add that we still do not think it appropriate to turn to extra-record documents, or to documents that were not called to the ASLB 's attention, to resolve the summary disposition question. If the Appeal Board does turn to such documents, however, it should take them in context.
1539 268
Perry is of no help to the intervenors unless they can show some way in which Vepco's and the NRC Staf f's evidence is deficient; the intervenor in Perry, for example, made a timely objection to the geological report
( id . 746). In contrast, the intervenors in our case have not showed that Vepco's and the Staff's affidavits are insuf fic ient .16 Also, it should be noted that, because the failure to submit a proper affidavit was possibly a
" mere formality," the Appeal Board in Perry allowed the applicants 10 days to renew their summary disposition motion (id . 757); once they did so, the Appeal Board granted the motion. Cleveland Electr ic Illuminating Co .
(Perry Nuclear Power Plant, Units 1 & 2), ALAB-449, 6 NRC 884 (1977).
(2) The intervenors did not ask the ASLB to consider their interrogatory answers. The Potomac Alliance did not present any support at all (apart from 16/The intervenors say, on page 13 of their brief, that "Vepco's ev idence . . . consisted principally of the affidavit of Robert W. Calder, who stated that he ' d id no t e x pe c t ' such problems to occur." This sentence is, of course, an abbreviation of what Mr . Calder said , and it ignores altogether the af fidavits of Mr .
McKay and the NRC Staf f. On page 14 the intervenors say that Vepco offered no expert competent to testify on the relative merits of the alternatives. The intervenors do not mention, however, any particular fact that Mr. McKay, the Project Eng inee r , is not competent to assert.
1539 269
the alleged concrete standard) in its answers to the summary disposition motion; now on appeal the intervenors rely on the Alliance's answers to interrogatories, to which they did not refer in their summary disposition answers. (Those answers, and the interrogatory answers and other pleadings that the intervenors cite, are attached to this brief as Appendices. ) They argue on appeal that this makes no difference because of 10 CFR S 2.749(d), which tells the Board to consider all the filings in the record; they say that the Board should have searched the entire record, found what the intervenors were relying on, and dealt with it.
Section 2.749(d) does not, however, mean that a party can remain silent and expect the Board to search out the best case that he could have made if he had exerted himself. It needs to be read along with S 2.749(b), which says the presiding of ficer "may permit" af fidavits to be supplemented by answers to interrogatories; the intervenors never asked the Board to consider their inter rogatory answe rs.17 Their sole reference in their 17/Cf. the authority that an appeal board may not be required to review exceptions made by the party who has failed to file proposed findings, Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3, 4 n.2 (1975); Northern 1539 270
final summary disposition answer to the technical documents on which they now rely was this: "The Intervenors have collected and presented to the parties numerous studies showing that fuel cladding is subject to a range of defects when stored in itqueous env ironments ,
including chemical corrosion."18 Likewise the intervenors argue that the Board ignored the applicable legal standards, but they said nothing about searching the entire record in the section of their July 23 answer entitled " Applicable Legal Standards."19 Ordinarily we would hesitate to urge the dismissal of an argument on the ground that a party had failed to diligently plead it, but in a case like this one, involving a minor modification like dozens of others, in which no evidence of a significant safety issue has been (Continued from previous page)
States Power Co. (Prairie Island Nuclear Generating Plant, Units 1& 2), ALAB-244, 8 AEC 857, 864 (1974). For similar observation about issues that were not raised before the ASLB, see Tennessee Valley Authority (Hartsville Nuclear Plant, Un its lA , 2A , 18, &
28), ALAB-463, 7 NRC 341, 348 (1978); Nuclear Fuel Services, Inc.
(West Valley Reprocessing Plant), A LAB-2 6 3 , 1 NRC 208, 213 (1975).
18/" Potomac Alliance Second Supplemental Answer to Vepco's Motion for Summary Disposition," July 23, 1979, at 8, in Appendix B to this brief.
19/Id. 2-4.
1539 27l produced, we think it appropriate to hold the intervenors to their pleadings.
(3) The in te rveno r s ' statements of fact do not take issue with Vepco's case. Even if we consider the substance of the intervenors' statements of f act, we find that they are immater ial . A case for summary disposition is established, we believe, if one can agree with everything the intervenors say and still find for the applicant on the material issues, and that is the situation where " Mater ials Integrity" is concerned.
(a) The intervenors do not suggest that the consequences of leakage would be significant. In the first place, the uncontested evidence shows that leakage of the fuel cladding and the pool liner could occur without endangering the public health and safety.
( i) Cladd ing . Because most of the iso topes present in spent fuel have short half-lives or are removed by the fuel pool purification system, the only one of any significance is krypton-85. Acco rd ing to the NRC Staf f af fidavits, experience has shown that, because the fuel cools off once it leaves the reactor. core, after four to six months there is no significant release of fission products from defective fuel.20 Experience also 20/ Affidavit of Harry E. P. Krug on Contention 2: Rad io ac tive Emission, June 1, 1979, at 3-4, attached to "NRC Staf f Response 1539 272
shows that most failed fuel does not require special handling.21 Nevertheless, the Staff conservatively postulated an additional release of 80 curies per year of krypton-85 due to the high-density storage; they found tha t this would result in an additional whole-body dose of less than 0.0002 mrem / year at the site boundary.22 (ii) Pool liner. Likewise, a leak of wa te r from the fuel pool would not be significant. The water is kept relatively clean by the fuel pool purification system. If it should leak through the stainless steel liner, it would face either six feet of reinforced concrete or leak channels running directly to the Fuel Building sump, where the water would collect and cause an alarm to sound. A leak of any significant size would be detected by various instruments and alarms.23 (Continued from previous page) to Vepco Summary Disposition Motion," June 5, 1979. Vepco agreed that the thermal driving force required to cause diffusion in defective fuel is greatly reduced (Vepco's application S 7. 4 )
and noted that the release of krypton-85 is most likely to occur during the first year of storage ( pd . S 9.5).
21/Krug af fidavit 4.
22/Id. 4-5.
23/See Af fidavit of Paul H. Leech, Francis C. Kornegay and Jared S. Wermiel on Contention 1: Thermal Effects, June 4, 1979, at 6-7; Af fidavit of George B. Georg iev , M. D. Houston, 1539 273
(b) The intervenors' alleged facts are so general and inconclusive that they simply do not meet the specific facts of North Anna head-on. Leaving aside the allegations that are irrelevant 24 or quibbling ,25 what the intervenors are saying is that heat and radiation worsen corrosion. Recognizing that the temperature criteria for the fuel pool do not change with the high-density racks,26 (Continued from previous page) and Jared S. Wermiel on Contentions Regarding Materials Integrity and Corrosion, June 1, 1979, at 7-9, attached to "NRC Staff Response to Vepco Summary Disposition Motion," June 5, 1979; Vepco's application S 9.2; Af fidavit of H. Stephen McKay, May 11, 1979, attached to "Vepco's Motion for Summary Disposition," May 11, 1979, at 3.
24/The allegation that other fuel pools have suffered leaks is of this sort. The intervenors make no attempt to relate the leaks to the North Anna fuel pool.
25/For example, the statements that there is no experience of over 20 years' duration and that what experience there is relies on inadequate data prove nothing more than that the evidence is not perfect. This glosses over the fact that the NRC must rely on some evidence to make its decision and that what evidence there is shows an absence of corrosion problems.
It also ignores the fact that theory as well as experience can support a licensing decision and that theory predicts no significant corrosion over the life of the operating license.
26/The criteria are 140 F for the normal case and 170 F for the abnormal (that is, f ull-core discharge) case and will be met even in the event of a loss-of-coolant accident.
The basic reason why these criteria needn' t be changed on account of the high-density racks is that spent fuel cools off fairly quickly. As the Staff pointed out, upon discharge from the reactor the heat generation within a fuel assembly diminishes to 0.2% of its normal in-reactor power in 10 days, 1539 274
we are lef t with the simple proposition that radiation increases corrosion.
The reason this is immaterial is that the intervenors do not say how much corrosion is expected over the life of the license.27 The record, however , gives the answer. The radiation from a spent fuel assembly diminisher with time. At the flux assumed by the Staff for the pool a period of a oillion years would be required to expose the cladding to levels up to which studies have shown no abnormal behavior .28 The Staff experts said that the stainless steel liner will also not suffer abnormally from this level of radiation, based on the much higher fluxes to which stainless reactor internals are exposed.29 (Continued from previous page) 0.08% in 100 days, and 0.03% in one year; the cladding temperatures are only 1.8'F higher than the ambient water temperatures af ter four years. Af fidavit of George B.
Georg iev , M. D. Houston and Jared S. Wermiel on Contentions Regarding Materials Integrity and Corrosion at 3.
27/The North Anna 1 operating license expires February 18, 2011. It is implicit in the intervenors' argument that much of their concern is over storage af ter the license expires. As shown below under State of Minnesota v. NRC, this argument is outside the scope of tne proceeding.
28/Georgiev , Houston, and Wermiel af fidavit 3-4. Vepco's answer to the Potomac Alliance's interrogatory 22 says that fuel should easily be capable of storage for a few decades or even 100 years. This is supported by Table 3 in the Johnson paper attached to the interrogatory answer.
29/Id. 4-5.
1539 275
In short, the intervenors do not establish a material issue by showing simply that radiation causes corrosion, when the uncontradicted evidence shows that unacceptable corrosion will not occur with the radiation levels and durations involved in this proceeding.
(4) The materials integrity issue has been litigated before. Although it is not dispositive of this case , neither do we believe it is altogether irrelevant that the " materials integ rity" issue has been litigated and resolved in other licensing proceedings. Fo r ex ample :
(T]he staff's evidence established without contradiction that studies have demonstrated that Zircaloy-clad fuel is relatively impervious to corrosion, even at the considerably higher temperatures to which the fuel is subjected during reactor operation. In this connection, following its removal af ter 11 years of storage in the spent fuel pool of the Windscale facility in the United Kingdom, a Zircaloy-clad fuel bundle was found upon metallographic examination to be free of any corrosion attr ibutable to that storage.
Portland General Electr ic Co . (Troj an Nuclear Plant) ,
ALAB-531, 9 NRC 263, 274 (1979) ( footnotes omitted) ,
review declined, Commission Memorandum and Order of October 18, 1979. See also Portland General Electr ic Co.
(Troj an Nuclear Plant) , LBP-78-32, 8 NRC 413, 418-423 (1978). Similarly:
1539 276 We find, based on the testimony presented, that there is no significant likelihood of loss of rod integrity and resulting increased radioactivity in the spent fuel pool due to long-term storage of spent fuel in the Beaver Valley spent fuel pool.
Duquesne Light Co. (Beaver Valley Power Station, Unit No.
1), LBP-78-16, 7 NRC 811, 819 (1978), a f f ' d , ALAB-4 84, 7 NRC 984 (1978). Likewise the following:
The fuel assemblies utilized at Vermont Yankee contain zircaloy and stainless steel and Inconel 718. While the possibility of stress corrosion cracking of sensitized stainless steel or zircaloy cannot be eliminated entirely, its probability is believed to be extremely low. Past experience has shown no corrosion problems af ter residence of similar fuel assemblies in fuel pools for over ten years. And calculations indicate that zircaloy clad's corrosion rate is sufficiently low to provide an adequate containment for at least 100 years.
Even assuming that there is leakage of the fuel rods, this is not expected to be a problem for a number of reasons.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-77-54, 6 NRC 436, 440-41 (1977),
aff'd, ALAB-455, 7 NRC 41 (1978). The intervenors have never said why they expect a different outcome in this proceeding.
- 2. Alternatives (Weitzman Af fidavit)
In their second and fourth arguments the intervenors contend that the ASLB failed to comply with 1539 277
the National Environmental Policy Act because it inadequately considered the intervenors' proposed
" alternatives" to the high-density storage racks. Those alternatives are (1) building an independent spent fuel storage facility, (2) enlarging the North Anna 1 and 2 fuel pool, and (3) using the North Anna 3 and 4 spent fuel pool for fuel from Units 1 and 2. Roughly speaking , the intervenors' Argument 2 is that their own evidence (the Weitzman affidavit) established a material issue of fact, and the ir Argumeht 4 is that the Staff and ASLB have both failed to fulfill their duty to assess alternatives under NEPA.
The intervenors' evidence is the " Af fidavit of Dr .
Phillip M. Weitzman." Dr. Weitzman is an economic consultant, and his af fidavit, as the licensing board observed,30 presses the position that the materials submitted by Vepco did not provide an adequate " factual and analytical basis on which to determine whether VEPCO's proposed modification of the spent fuel pool at North Anna Units 1 and 2 is economically more advantageous than any of the three alternative proposals contained -in the 30/" Order Granting Vepco's Motion for Summary Disposition,"
August 24, 1979, slip op. 19.
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Potomac Alliance's contention labeled ' Alternatives.'" (A copy of Dr. Weitzman's affidavit is attached to this brief as Appendix F. )
Dr. Weitzman's affidavit may well raise an issue about which alternative is cheapest, but it is immaterial.
NEPA does not require a search for the cheapest way of doing something; it is concerned with alternatives that are kinder to the environment:
Unless the proposed nuclear plant has environmental disadvantages in comparison to possible alternatives, dif ferences in financial cost are of little concern to us. . . .
The passage of the National Environmental Policy Act increased our concern with the economics of nuclear power plants, but only in a limited way. That Act requires us to consider whether there are environmentally preferable alternatives to the proposal cefore us. If there are, we must take the steps we can to see that they are implemented if that can be accomplished at a reasonable cost; i.e., one not out of proportion to the environmental advantages to be gained. But if there are no preferable environmental alternatives, such cost-benefit balancing does not take place. Manifestly, nothing in NEPA calls upon us to sift throug h environmentally inferior alternatives to find a cheaper (but dirtier) way of handling the matter at hand. In the scheme of things, we leave such matters to the business judgment of the utility companies and to the wisdom of the State regulatory agencies responsible for scrutinizing the purely economic aspects of proposals to build new generating f acilities. In short, as far as NEPA is concerned, cost is important only to the 1539 279
extent it results in an environmentally superior al te r na t iv e . If the " cure" is worse than the disease, that it is cheap is hardly impressive.
Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 162-63 (1978) (footnotes omitted).
The intervenors have suggested no way in which their alternatives would offer environmental advantages 31; Dr. Weitzman says nothing about the environment at all.
In fact, all three alternatives feature the storage of the fuel on the same site in racks presumably of similar design. But the alternatives would involve major construction activities and the manufacture of new racks from scrhtch.32 31/ Apart from economics, the only thing the intervenors say (again in their answers to inte r rog ato r ie s) is that the alternatives could provide a 21-inch center-to-center distance between fuel assemblies instead of a 14-inch one. This, say the intervenors, would reduce the multiplication factor and the risk of missile damage and therefore the risk to the environment. The record shows without contrad iction, however , that with either the 14-inch or the 21-inch separation the multiplication f actor is suf ficiently low to prevent accidental criticality. Also, the record shows without contradiction that the probability of missile damage is extremely low and the consequences small, regardless of whether high- or low-density racks are used.
32/Apparently the intervenors do not propose using the already-made high-density racks at all (in an independent storage facility, for example), because they regard a 21-inch center-to-center d istance as " optimal" for some reason. See
" Potomac Alliance Responses to the NRC Staff's Interrogatories and Request for the Production of Documents," May 30, 1979, at 23.
The high-density racks can provide a 14-inch distance or (by skip-1539 280
- 3. Service Water Cooling System The intervenors also wish to have a hearing on whether the capacity of the spent fuel cooling system is adequate. They offer no evidence and no experts. The only basis for the contention is this: that a performance test and analysis of the service water reservoir have shown that the design maximum temperature for the service water system must be increased f rom 95 'F to 110 *F.33 311 tbis in turn means is that two spent fuel pool coolers instead of one may have to be operated for four to five days if the North Anna Power Station ever experiences a loss-of-coolant accident combined with certain other worst-case conditions.34 At all other times either one of the two coolers will be suf ficient to maintain the pool water below 140 F for the normal condition and 170 *F for the abnormal . There is no NRC requirement that there be a standby pump available at all times.
(Continued from previous page) ping some storage cells) a 28-inch distance, but not 21 inches.
33/See Af fidavit of Jared S. Wermiel on New Contention Concerning Service Water Cooling System.
34/Af fidavit of H. Stephen McKay, at 3, attached to "Vepco's Motion for Summary Disposition," May 11, 1979.
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Even if only one cooler were used under the worst-case conditions mentioned above, the pool temperature would go to only about 148*F for the normal case and 177'F for the abnormal. These are only slightly higher than the design criteria and less than the 177.5"F assumed for the fuel pool structural analysis,35 and they will not result in unacceptable operating conditions or adversely affect the health and safety of the public.36 The 140 and 170' limits are not really required for safety, but were simply chosen by Vepco as design criteria. The calculated maximum temperatures are based on very conservative worst-case assumptions;37 actual temperatures in the Surry fuel pool have proved significantly lower in practice than the calculated temperatures.38 Even if the spent fuel cooling system became completely inoperable, other station systems could provide suf ficient make-up water to cool the fuel and maintain water shielding .39 3 5/Vepco's application S 7. 2, Table 7-3; McKay af fidavit 2.
36/Wermiel affidavit 2.
37/Vepco's application S S 5. 5, 7.2.
38/Id.
39/ . S 9.1. 2b2 The intervenors have cited nothing that opens the above statements to doubt. Their position is apparently nothing more than that they want the issue to be subjected to the " crucible of the hearing process," presumably in the hope that something will turn up at the hear ing . See Gulf States Utilities Co. (River Bend Station, Units 1 &
2), LBP-75-10, 1 NRC 246, 248 (1975). This is not enough to establish an issue of fact.
- 4. Alternatives ( ASLB 's Independent Duty)
The intervenors take up the " Alternatives" contention again in their fourth argument. In Argument 2 they contended that Dr. Weitzman's af fidavit raises issues of fact about alternatives; in Argument 4 they maintain tha t even without his af fidavit the record is insuf ficient to fulfill the Commission's obligations under NEPA.
There are two answers to this argument. First, the Commission has no duty under NEPA to examine alternatives to a proposal, such as this one, that neither significantly affects the environment nor involves unresolved conflicts about alternative uses of resources.
Se cond , it has no duty to examine unreasonable alternatives -- alternatives that themselves will not improve the environmental impact or that are not 1539 283
reasonably available when needed. The NRC Staff considered the intervenors' alternatives and found no reason to con sider them fur ther.
- a. io_ duty to consider alternatives to so minor a proposal.
The record shows without contradiction that the proposed modification will not significantly affect the human environment. There is therefore no duty to explore alternatives under NEPA S 102(2 )(C) (iii) , 42 U.S.C.
S 4332(2)(C) . The intervenors argue that there is a separate duty under S 102(2)(E), 42 U.S.C. S 4332(2)(E)
(197 6 ed . ) , but that section applies only to proposals that involve " unresolved conflicts concerning alternative uses of available resources." The intervenors have raised no material issue over alternative uses of resources.
Indeed, it would be almost impossible to do so, since the installation of the high-density racks in the existing pool was obviously less disruptive than the intervenors' alternatives, which would require substantial construction ac tiv itie s . The point was made in the Troj an proceeding, another spent fuel pool case:
(The intervenor] is confronted with the fact that the evidence establishes without contr ad ic tion that the process of installing the new racks in that pool and the operation of the pool with its expanded capacity will neither (1) entail more than negligible environmental impacts; nor (2) 1539 284
involve the commitment of available resources respecting which there are unresolved conflic ts . . . . As we r e ad it , the NEPA mandate that alternatives to the proposed licensing action be explored and evaluated does not come into play in such circumstances - in short, there is no obligation to search out possible alternatives to a course which itself will not either harm the environment or bring into serious question the manner in which this country's resources are being expended .
Portland General Electric Co. (Troj an Nuclear Plant) ,
ALAB-531, 9 NRC 263, 266 (March 21, 1979) (footnote omitted), review declined, Commission Memorandum and Order of October 18, 1979.40 The intervenors refuse to address, or even acknowledge, the Troj an decision.
- b. No duty to consider unreasonable alternatives.
As the Staff pointed out in its answer to the motion for summary disposition, even assuming the existence of an obligation to consider alternatives, the alternatives must pass some threshold test of reasonableness. See, e.g.,
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 552-54 (1978); NRDC v . Morton, 458 F.2d 827, 837 (D.C.
Cir. 1972). The EIA, coupled with the Leech affidavit, 40/See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978),
remanded on other grounds sub nom. State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979); Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1), LBP-78-16, 7 NRC 811, 817 (May 4, 1978), a f f ' d , ALAB-4 84, 7 NRC 984 (June 7, 1978).
1539 285
demonstrates that the intervenors' proposals are not viable alternatives to the proposed action or otherwise preferable from an environmental standpoint.41 The ASLB described Vepco's evidence, the Staff's analysis , and Dr . We itzman's af fidavit ( slip op. 19-2 0 )
and cited the Troj an case. Since the Weitzman affidavit, which raised no environmental issues, was the only f actual material the intervenors presented, it is not clear what else the Board could have said . It is true that the ASLB dealt with the alternatives briefly, but its treatment of them was entirely appropriate considering the minor nature of the proposed amendment, the insignificant environmental impac t , and the failure of anyone to put forward any plausible reason why a more thorough review was necessary.
41/The independent fuel storage facility is discussed in the Environmental Impact Appraisal, and the other two alternatives in the Af fidavit of Paul H. Leech on Contention 7:
Alternatives, attached to the "NRC Staf f Response to Vepco Summary Disposition Motion," June 5, 1979. As noted in Mr.
Leech's af fidavit, the second alternative, that of tearing apart the Fuel Building to expand the pool, " offers no environmental or cost advantage over the proposed SFP modification," Leech af fidavit 2. "In view of the greater construction efforts involved with this alternative, the lack of generating capability of one or both units- during a portion of the construction time, and the necessity for transporting spent fuel to storage elsewhere, the staff concludes that the envir onmental impacts would clearly be greater than those of the proposed SFP modification," id . 3. Likewise, the alternative of using the Unit 3 and 4 pool "does not offer an environmental or cost advantage," id . 4.
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- 5. Inadequate Detail in ASLB Decision The intervenors' fifth argument is that the ASLB 's decision is inadequately detailed because it devotes too little attention to their arguments. The fact is, though, that the intervenors had so little substance to their case tha t the Board had nothing to consider. (See Appendix B to this brief.)
In their Argument 5 the intervenors give no specific instance of the Board's failing to address a salient point made by them. Accordingly it is not really possible to treat the issue as a separate argument. The best course would be to address it in the context of the more specific intervenor arguments, such as that about
" materials integrity," and that is the approach we have taken in this brief.
- 6. State of Minnesota v. NRC The intervenors argue the ASLB should have granted their motion to amend the existing contentions "in order that they be addressed and resolved on the assumption that the North Anna spent fuel pool would be used to store spent fuel beyond the expiration date of the operating licensea42 (Intervenor's brief 22) . This result is 42/The " seismicity" contention must be dismissed on the grounds that the intervenors have never explained what it has 1539 287
required, the intervenors say, by State of Minnesota v.
NRC, 602 F.2d 412 (D.C. Cir. 1979). The intervenors also argue that if the NRC had wanted the issue of long-term storage excluded from individual licensing proceedings, it would have said so (Intervenor 's brie f 29-3 0 ) .
That is precisely what the Commission has done in its notice of proposed rulemaking on the storage and disposal of nuclear waste:
During this (rulemaking) proceeding the safety implications and environmental impacts of radioactive waste storage on-site for the duration of a license will continue to be subjects for adjudication in individual facility licensing pr oceed ing s . The Commission has decided , however ,
that during this proceeding the issues being considered in tne rulemaking snould not ce addressed in ind iv id ual licensing proceedings.
Tnese issues are most appropriately addressed in a generic proceeding of the character here inv isag ed . Furthermore, the court in the State of Minnesota case by remanding this matter to the Commission but not vacating or revoking the facility licenses involved, has supported the Commission's conclusion that licensing 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.
(Continued from previous page) to do with spent fuel racks or with State of Minnesota v. NRC.
Nor have they provided a single word of substantive basis for the contention.
1539 288
44 Fed. Reg. 61372, 61373 3d col. (Oct. 25, 1979)
(emphasis added). The issue of storage beyond February 18, 2011, when the North Anna operating license expires, is simply beyond the bounds of this proceeding.
- 7. Abbreviated Schedule The intervenors argue that the ASLB abused its discretion and denied them due process of law by allowing them too little time to prepare their case. The issue, however, is not whether the intervenors had time to prepare testimony for a hearing; the issue is whether they had time to raise a material issue of fact. On this question the record leaves room for only one conclusion.
The short of the matter is that on June 29, the day when the last answers to the intervenors' interrogdtories were served , the ASLB gave the intervenors until July 23, 24 additional days , to answer the summary disposition motion that had been filed 49 days before.
, (The regulations, 10 CFR S 2.749(a) and S 2. 710, g ive 25 days in all.) The i ntervenors themselves had proposed that discovery end by July 6 (see below). During the 24 extra days , the intervenors submitted no discovery requests, so far as Vepco knows, on the three contentions 1539 289
involved in this appeal, and on July 23 they filed an answer that said nothing about needing more time. At the same time Vepco had shown by af fidavit that there was a need for a speedy decision.
- a. The intervenors haven' t shown they were prejudiced by the schedule.
But there is more to it than just the extra 24 days. The intervenors had Vepco's application available to them since May 1978 and the Staff's safety analysis and environmental assessment since January and April 1979.43 And Vepco's summary disposition motion was adapted from its application almost verbatim. The intervenors knew from the beginning they would have to face a motion for summary disposition,44 and they were given no reason to doubt that if they needed more information from Vepco, they had only to ask; Vepco responded ungrudgingly whenever the intervenors requested information (see Appendix H to this brief) .
43/To establish reversible error from curtailment of discovery procedures, a party must demonstrate that it was harmed.
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858, 869 (1975); see also Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), ALAB-231, 8 AEC 633, 634 (1974). -
44/See, e.g., Transcript of conference, Charlottesville, Virginia September 8, 1978, at Tr . 82, where Vepco counsel said "we may very well avail ourselves of the procedures for summary disposi-tion."
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Moreover, the Board gave the intervenors more time than they had asked for. The Potomac Alliance had itself proposed a schedule that would have ended discovery on July 64 5, and the Citizens' Energy Forum requested that 45/The Alliance's exact proposal was the following:
Discovery (1st round) to be filed by May 23, with responses to interrogatories filed within 14 days thereafter and documents within 20 days; Discovery (2nd round) to be filed within 10 days thereafter, with responses to in-terrogatories filed within 10 days and docu-ments produced with [ sic] 14 days; The prehearing conference to be held with (sic] 10 days after the close of discovery; The evidentiary hearing to be held 30 days thereafter.
" Potomac Alliance Motion for Rescheduling of Hearing and Answer to NRC Staf f Motion to Reschedule Hear ing ," May 21, 1979, at 5-6.
This schedule would have ended discovery by July 6 and had the evidentiary hearing August 15, provided one does not add the extra five days allowed by 10 CFR S 2.710 for responding to documents served by mail . It is appropriate to exclude the five days because Vepco had the power to do so merely by picking up and serving the pleadings by hand, as it expressly proposed to do with certain written testimony. Letter from Vepco counsel to ASLB Chairman Deale, July 25, 1979, at 3.
In their brief the intervenors say they needed at least three months to prepare for a hearing ( they do not say how much they needed to answer a summary disposition motion) (Intervenors' brief 34) . The NRC Staff served its interrogatories on May 8.
Had the intervenors started discovery at the same time, they would 1539 29i
the public hearing be held no earlier than July 24.46 The July 23 date for final answers to the summary disposition motion, then, was reasonable.
- b. The intervenors didn' t demonstrate their need for more time.
We recognize that what we have said so far is not entirely dispositive; the crux of the intervenors' arg ument is not the total amount of time they had but rather the way it was parcelled out piecemeal. The hearing was rescheduled on two occasions, both times because the Staf f or the intervenors had requested a postponement. The intervenors argue that the whole is less than the sum of its parts; apparently their consultants were reluctant to begin trial preparation unless they were assured they would have all the time they needed (Intervenors' brief 35-36).
Unfortunately the intervenors did not inform the ASLB that their consultants felt this way. They did not (Continued from previous page) have had over three months until the August 14 hearing date and about 21/2 months until the July 23 deadline for summary disposi-tion pleadings. See also Transcript of prehearing conference, Charlotte sv ille , Virg inia , March 29, 1979, Tr. 203.
46/" Response to Notice of Hearing and Request for Postponement of Hear ing ," May 18, 1979, at 1.
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tell the Board then (and they do not tell the Appeal Board even now) when they had first approached these consultants, what the consultants hoped to prove, what activities the consultants were undertaking, or how long it might take them to finish. They submitted no affidavit from any expert justifying his need for more time.
What they did say, on June 25, was that they had talked with a geologist and a chemical engineer and that these experts could not submit affidavits without first studying the answers to the intervenors' discovery requests.47 Fair enough. But Vepco and the Staff answered the interrogatories on June 20 and 29 respectively; the intervenors served no additional ones; and on July 23, the intervenors filed an answer that said not a word about needing more time. What was the licensing board to think but that the intervenors were satisfied with discovery?
Thus, when the intervenors argue that licensing boards should be sympathetic to intervenors' requests for time (citing two decisions in which such requests were denied 4 8) , they miss the point. The point is that the 47/" Potomac Alliance Supplemental Answer to Vepco's Motion for Summary Disposition," June 25, 1979, at 3.
48/Intervenors' brief at 32 n.3. In Consolidated Edison Co. of New York, Inc., (Indian Point, Units 1, 2& 3), ALAB-3 7 7, 5 NRC 1539 293
board was sympathetic -- it granted more time when asked
-- and that the intervenors did not bring their need to the Board's attention. Even in their appellate brief the intervenors say no more than that their consultants were unwilling to take the risk that the ir trial preparation would be cut short. (They do not say why the consultants were unwilling to help answer the summary disposition motion.) Vepco believes it was not too much to ask of the intervenors that they begin preparation while simultaneously asking for more time. If the intervenors could not find consultants willing to work under those conditions, we do not believe the costs of delay should have been borne by Vepco's employees and customers. It is to the subject of those costs that we turn last.
(Continued from previous page) 430 (1977), the Appeal Board refused to change the testimony-filing schedule at the request of the State of New York, where the state had neither j ustified its delay in asking for relief nor demonstrated that it had been prej udiced. In Public Service Co. of Indiana, Inc., (Marble Hill Generating Station, Un fEs 1
& 2), ALAB-459, 7 NRC 179 (1976), the Appeal Board declined to interfere with a scheduling decision where the com-plainant (the State of Kentucky) had made "no effort at all" to prepare rebuttal in the four weeks before hearing, id . 188.
It was almost four weeks between the ASLB 's order of June 29 granting more time and the July 23 deadline for summary disposition pleadings.
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- c. The public interest favored a speedy decision.
In matters of scheduling the paramount consideration is the public interest, which is usually served by as rapid a decision as is possible consistent with everyone's opportunity to be heard.49 Moreover, 10 CFR S 2.711(a) allows for the shortening of time limits for " good cause."
Ve pco , by a f fid av it , pointed out that if it became necessary to install the low-density racks temporarily and then replace them after spent fuel was placed in the pool, the workmen would receive approximately 13 man-rem50 -- a small but very real (and very avoidable) pr ice to pay.51 4 9/ Potomac Electr ic Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539 (1975); see also Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility) , ALAB-296, 2 NRC 671 (1975).
50/Af fidavit of E. Ashby Baum, May 30, 1979, at 2, attached to "Vepco's Answer to Intervenors' Statement of Exceptions,"
August 27, 1979. There are also other costs, since underwater installation in a contaminated pool would be more expensive and since the old, contaminated racks would have to be treated as low-level radioactive waste.
The intervenors argue, on page 36 of their brief, that Vepco should have filed its application earlier . In May 1978 when Vepco applied for the license amendment the first refueling of North Anna 1, and thus the first need for the fuel racks , was expected to be November 1979. Thus Vepco allowed about a year and a half for licensing . In light of the fact that the requested modification is a relatively minor one, this does not appear to have been unreasonable behavior .
51/Cf. Northern States Power Co. (Prair ie Island Nuclear Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977),
when the Appeal Board urged speed in a similar situation.
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The intervenors were long aware of the need for promptness; as early as July 1978 Vepco explained that radiation exposure to plant employees could be avoided if the racks were installed before the first refueling of North Anna 1,52 and thereafter we played the same theme repeatedly.53 Moreover, the intervenors had it within their power to eliminate the need for an expeditious decision.
Vepco proposed that the parties agree to the installation and limited use of the high-density racks pending the outcome of the licensing proceeding so that the problem of installing the racks in a contaminated pool could be avoided . Under Vepco's proposal the use of the racks would have been limited so that any spent fuel assemblies stored in the pool would have been far ther apart and fewer La number than permitted with the already-licensed 52/See Af fidavit of E. Ashby Baum, July 6, 1978, at 3, attached to "Vepco's Answer to Petitions for Leave to Intervene (Including Alternative Motion for Consolidation) ," July 6, 1978. In January 1979 Vepco pointed out that the first refueling was planned for September . "Vepco's Brief in Opposition to the Inter-vention of CEF and the Potomac Alliance," January 17, 1979, at 3-4.
53/See, e.g., Transcript of prehearing conference, Charlottes-ville, Virginia, March 29, 1979, at Tr. 212, 215, where Vepco urged an immediate start of formal discovery.
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low-density racks, at least until the issues in this proceeding were resolved.54 This seemed a sensible approach, because the intervenors' contentions were almost exclusively (and their arguments on appeal are exclusively) concerned with the long-term storage of large numbers of fuel assemblies. The intervenors had expressed concern over the occupational exposure to the North Anna employees,55 and so Vepco emphasized the savings in occupational exposure. And the intervenors would not be prej udiced , Vepco pointed out, because if they won the case the use of the high-density racks could be restricted to the original capacity of 416 or fewer.
Nevertheless, the intervenors refused to agree to the interim proposal .56 54/See "Vepco's Motion for Interim Relief," June 18, 1979.
Vepco first made this proposal at the prehearing conference of March 29, 1979. Transcript of prehearing conference, Charlottesville, Virginia, March 29, 1979, at Tr. 210-211.
55/See Transcript of prehearing conference, March 29, 1979, at Tr. 218. The Citizens' Energy Forum even had a conten-tion on " Occupational Exposure."
56/See "Intervenors' Response in Opposition to Vepco's Motion for Inte r im Relie f ," July 9, 1979.
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CONCLUSION AND PRAYER FOR RELIEF The intervenors do not say in their brief precisely what relief they seek from this appeal. We understand them to want a public hearing on the Materials Integrity, Service Water Cooling System, and Alternatives contentions and a more detailed decision (either from the Appeal Board or on remand from the ASLB) on those three contentions and perhaps the others.57 Vepco's position, on the other hand, is that the intervenors, though given ample time, have failed utterly to raise any material issue of triable fact in this proceeding. Ac co rd ingly ,
the Appeal Board should affirm the ASLB's grant of summary disposition. Other than that, Vepco asks the following:
- 1. That if the Appeal Board holds oral argument b1 this case, it schedule it after January 2, 1980, so that people involved in this case can go home for the holidays.
57/Since the intervenors haven' t appealed the summary disposi-tion of the other contentions, it is hard to tell what purpose would be served by a more detailed decision about them.
It may be that the intervenors will also seek an order that Vepco remove the contaminated high-density racks until the conclusion of the proceeding. If the intervenors do seek such an order in the future Vepco would like to be permitted to respond.
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b
- 2. That if the Appeal Board finds any minor shor tcoming in the record , it g ive the par ties a chance to supplement the record by affidavit, as in Perry 1 & 2, before deciding whether to order a full evidentiary hearing.
- 3. Thht in the event the Appeal Board decides the intervenors deserve nothing more than a more detailed decision on the existing record, it render the decision itself in the interest of saving time.
- 4. That if the Appeal Board orders a public evidentiary hear ing , it specify as precisely as possible what issues are to be heard, somewhat as itdid in the recent radon decision, Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-562, 10 NRC (1979).
- 5. That if the Appeal Board orders a public hearing, it require the intervenors to file a prehearing memorandum detailing precisely what facts they hope to prove; what conclusions those fac ts , if proved, will support; and what legal authorities they rely on.
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- 6. That if the Appeal Board takes any action other than affirming the ASLB, it permit the high-density racks to remain in use pending the conclusion of this proceeding.
Respectfully submitted ,
/s/ James N. Christman James N. Christman, Counsel for Virginia Electr ic and Power Company OF COUNSEL:
Michael W. Maupin James N. Christman James M. Rinaca Hunton & Williams P.O. Box 1535 707 E. Main Street Richmond , Virg inia 23212 DATED: November 30, 1979 1539 300 Certificate of Service I hereby certify that I have this day served Vepco's Brief in Opposition to Intervenors' Exceptions upon each of the persons named below by first-class mail, postage prepaid.
Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief, Docketing and Service Section Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing ton , D.C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Dr. Lawrence R. Quarles Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washing ton , D.C. 20555 Valentine B. Deale, Esquire 1001 Connecticut Avenue, N.W.
Washing ton , D.C. 20036 Dr. Quentin J. Stober Fisheries Research Institute University of Washing ton Seattle, Washing ton 98195 Mr. Ernest E. Hill Lawrence Livermore Laboratory University of California Livermore, California 94550 1539 301
9 w
Citizens' Energy Forum, Inc.
P.O. Box 138 McLean, Virginia 22101 James B. Dougherty, Esquire 307 Eleventh Street, N.E.
Washing ton , D.C. 20002 Steven C. Goldberg, Esquire U.S. Nuclear Regulatory Commission Washing ton, D.C. 20555 Anthony J. Gambardella, Esquire Of fice of the Attorney General Suite 308 11 South Twelfth Street Richmond , Virginia 23219 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washing ton , D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washing ton , D.C. 20555 By /s/ James N. Christman James N. Christman, Counsel for Virginia Electr ic and Power Company DATED: November 30, 1979 1539 302