ML20247L515

Memorandum of Vermont Yankee Nuclear Power Corp on Existence of Genuine & Substantial Question of Fact Re Environ Contention 3.* Contention Considered Invalid & Should Be Dismissed

ML20247L515
Person / Time
Site:	Vermont Yankee
Issue date:	05/23/1989
From:	Gad R ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20247L519	List: ML20247L515 ML20247L532
References
CON-#289-8674 OLA, NUDOCS 8906020189
Download: ML20247L515 (9)

Text

I W DOCKETED I UNITED STATFS OF AMERICA ,

th NE C 3 NUCLEAR REGULATORY COMMISSION before the .;

ATOMIC SAFETY AND LICENSING BOARD I )

In the Matter of )

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! VERMONT YANKEE NUCLEAR )

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Docket No. 50-271-OLA l POWER CORPORATION )

) (Spent Fuel Pool (Vermont Yankee Nuclear ) Expansion)

Power Station) )

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MEMORANDUM OF l VERMONT YANKEE NUCLEAR POWER CORPORATION ON TIIE EXISTENCE OF A GENUINE AND SUBSTANTIAL

! QUESTION OF FACT REGARDING ENVIRONMENTAL CONTENTION 3 lg SWORN WRITTEN TESTIMONY OF i3 DONALD A. REID, MICIIAEL J. MARIAN, RUDOLPII M. GRUBE, JOIIN M. BUCHHEIT, RICIIARD P. PIZZUTI, AND PETER S. LITTLEFIELD, SUBMITTED BY VERMONT YANKEE NUCLEAR POWER CORPO. RATION I PURSUANT TO 10 C.F.R. l 2.III3(a)

I I John A. Mitsher R. K. Gad In Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7000 May 23,1989.

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I UNITED STATES OF AMERICA Filed: 5/23/89.

NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD I )

i In the Matter of )

)

VERMONT YANKEE NUCLEAR ) Docket No. 50-271-OLA POWER CORPORATION )

) (Spent Fuel Pool I . (Vermont Yankee Nuclear ) Expansion)

Power Station) )

I MEMORANDUM OF VERMONT YANKEE NUCLEAR POWER CORPORATION E ON TIIE EXISTENCE OF A GENUINE AND SUBSTANTIAL QUESTION OF FACT REGARDING ENVIRONMENTAL CONTENTION 3 Pursuant to 10 C.F.R. Q 2.lll3(a) and the Memorandum and Order of this Board dated April 21,1989, the Licensee in this matter, Vermont Yankee Nuclear Power Corporation (" Vermont Yankee"), submits this memorandum containing what it believes to be all the relevant facts, data and argument on the validity of Environmental Contention 3. Vermont Yankee contends l that Environmental Contention 3 is invalid and should be dismissed or. the merits. Vermont Yankee further contends that there is no genuine and sub-stantial dispute of fact the resolution of which might tend to support the validity of Environmental Contention 3.

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1. TIIE NATURE OF TIIE PROCEEDINGS.

l A. The Proposed Amendment.

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Vermont Yankee Nuclear Power Station ("VYNPS") is a boiling water reactor located in Vernon, Vermont. When originally licensed in 1972, the i

VYNPS spent fuel pool had a capacity of 600 spent fuel assemblies. In 1977,

! the capacity of the VYNPS spent fuel pool was expanded to 2,000 spent fuel assemblies. Vermont Yankee Nuclear Power Corporation (Vermont Yankee I .

i i l Nuclear Power Station), ALAB-455, 7 NRC 41 (1978), affd in relevant part sub nom. Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.1979). In April of 1986,  !

Vermont Yankee submitted to the NRC Staff an application for an operating license amendment to increase the maximum authorized spent fuel storage capacity to 2,870 spent fuel assemblies. This proposed expansion, as the I pr,evious one, will be effected by the substitution cf new racks that would permit the storage of a greater number of spent fuel assemblies in the same amount of spent fuel pool floor area. As originally proposed, only the design of the racks would have changed; in all other respects the VYNPS spent fuel pool and associated systems would have remained identical.

In October,1988, following publication of the Staff's Environmental Assessment under 10 C.F.R. f 51.30 ("EA"), this Board admitted Environmen-tal Contention 3, which challenges, in the first instance, the adequacy of the Staff's conclusion in the EA that dry casks did not provide an alternative to the proposed action because the dry cask alternative could not be relied upon to meet the need in question. Necessarily, Environmental Contention 3 ultimately contends that the proposed license amendment should be denied in favor of an environmentally obviously superior alternative whose environmen-tal superiority is not outweighed by economic considerations.1 B. The Contention.

I The admitted contention reads as follows:

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

" Joint Motion of New England Coalition on Nuclear Pollution and the Com-monwealth of Massachusetts for Leave to File Late-Filed Contentions," at 4; see Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LUP-8fs-26, 28 NRC 440, 448-50 (1988). The " basis" for the contention limits itself to criticism of the EA's treatment of the dry cask I IWhile the contention most narrowly construed may appear to be I limited to the adequacy of the EA, it is necessary (in order for the inter-venors to be aggrieved by any deficiency) that the contention subsume the assertion that, had the NEPA analysis (of which the EA is the first step)

I been done properly, it would have led to an agency decision denying the operating license amendment on the ground stated in text.

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alternative and, sornewhat surprisingly, contains no affirmative assertion that, were dry casks considered on their merits, they would demonstrate the en- ]

vironmental superiority and economic equivalency requisite to constituting I the basis for denying an operating license amendment.

1 II. TIIE APPLICABLE LEGAL STANDARD.

In order to deny an application on grounds that an environmentally preferable alternative should be selected in its stead, this agency must I ultimately make four findings:

First, the agency must find that the putatively preferable alternative will, in fact, accomplish the same functional result as the applied-for alternative. In the present context, this means that any such alternative must provide for sufficient storage to accommodate up to 870 spent fuel assemblies, available prior to the time that VYNPS would otherwise lose capacity in its spent fuel pool to accept a full-core offload. If this finding cannot be made, then the putative alternative is not, in fact, an alternative I

and the analysis ends.

, Second, the at:ernative must be determined to effect an environmental i

superiority -- that is to say, it must result in aggregate environmental costs lower than the environmental costs of the applied-for alternative. If this finding cannot be made, then the analysis ends.

Third, because the question before the agency is not a matter of plenary agency action, but rather granting or denying an application other-wise meeting all of the substantive requirements of the substantive statute under which a license is sought, the agency must determine that the putative alternative is "obviously superior" to the applied-for alternative. This I concept includes both that the environmental preferability be substantial and that it be certain.2

'See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),5 NRC 506,526-30 (1977), aff'd sub nom. New England Coali-li tion on Nuclear Pollution v. NRC, 582 F.2d 87, 95 (1st Cir.1978). See also General Public Utilities (Three Mile Island Nuclear Station, Unit 1), LBP 'E 7,29 NRC (February 2,1989) (applying "obviously superior" standard to E alternatives contentions outside of alternate sites) (copy attached), immediate effectiveness granted, CLI-89-5, 29 NRC , CCH Nuc. Reg. Rptr. par.

31,095 (April 13,1989) (with specific reference to the "obviously superior" lI standard).

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Fourth, any alternative displaying the requisite obvious superiority on environmental grounds must not simultaneously bear a non-insignificant j economic or operational penalty. Moreover, this assessment is made as of the remaining prospective costs of the applied-for and the contended-for I alternatives, notwithstanding the inherent economic advantage accrued to the applied-for alternative.s Ill. THE FACTS.

The facts upon which Vermont Yankee relies are set forth in the I " Sworn Written Testimony of Donald A. Reid, Michael J. Marian, Rudolph M.

Grube, John M. Buchheit, Richard P. Pizzuti, and Peter S. Littlefield, Sub-mitted by Vermont Yankee Nuclear Power Corporation Pursuant to 10 C.F.R.

I f 2.lll3(a)," submitted herewith.4 This testimony establishes the following propositions of fact, which the Board should find:

Timely Availability of Dry Casks. At the time Vermont Yankee made its decision, a solution to the spent fuel storage expansion problem was required to be in place by 1989.5 Licensee's Direct Testimony at 5-6. The best estimate Vermont Yankee could then (and can today) make for the time I required to design, license and construct a dry cask alternative is between 4 and 8 years and is, as this estimate reflects, fraught with uncertainties.

Licensee's Direct Testimony at 10-12. The existence of such uncertainties is g

W hardly surprising, given that (i) only two facilities have licensed dry cask spent fuel storage (Licensee's Direct Testimony at 8-10), (ii) both occurring after Vermont Yankee made its decision to pursue re-racking (id.), (iii) both constituting uncontested, DOE-assisted pilot projects (id.), (iv) neither involving a Boiling Water Reactor (id.), (v) and each involving the use of a dry storage technology for which the manufacturer was actively pursuing NRC Staff approval ,of a Topical Safety Analysis Report (id.). Unlike re-racking, which can be accomplished by amendment to an existing operating

• Public Service Compar.y of New Har.spshire (Seabrook Station, Units I and 2), 5 NRC 506, 531-36 (1977), af['d sub nom. New England Coalition on Nuclear Pollution v. NRC,582 F.2d 87,95 (1st Cir.1978).

4This document is hereinafter referred to as " Licensee's Direct Testimony."

6 Subsequently, Vermont Yankee implemented extended (18-month) fuel cycles at VYNPS, such that loss of full core reserve will now occur in 1990.

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i license amendment, using a technology fully matured by over 100 prior appli-cations and in a regulatory environment equally seasoned (Licensee's Direct Testimony at 7), implementation of a dry storage option requires the obtain-ing of. a new license under 10 C.F.R., Part 72 that, as a practical matter, cannot be obtained unless and until the manufacturer of the cask supports and obtains Staff approval of his cask.8 Licensee's Direct Testimony at 10.

Thrs, at best dry casks appeared to be marginally available from the perspective of 1984, if and only if one were prepared to make (and to bet the ability to continue to operate the plant on) the unreasonable assumption that all uncertainties would be resolved in favor of this option. By 1986, when Vermont Yankee submitted its operating license amendment application to t!'e Staff, and by 1988, when the Staff published its EA, it was clear that 8

0n May 3,1989, the Comminion published a Notim of Proposed Rule-making, 54 Fed. Reg.19379, that, when and if enacted, will alter somewhat the licensing scenario for at-reactor dry cask storage. Under the proposal, I holders of operating licenses for nuclear power plants would be granted a

" general license" to store spent fuel in NRC-Certified casks, with no further .!

j licensing activity required. However, before taking advantage of this au-I thority, a licensee is required to perform and document essentially the same analyses as are required under the present scheme, including evaluations showing that conditions set forth in the Certificate of Compliance are met for the anticipated total number of casks to be used for storage (proposed 10 C.F.R. { ~12.212(b)(2)), demonstrations that cask storage pads and areas are designed. to adequately support the static load of the stored casks (proposed 10 C.F.R. f 72.212(b)(2)), evaluations to assure that the site I parameters are enveloped by the cask design capabilities considered in the Cask Safety Analysis Report referenced in the Cask Certificate of Compli-ance (proposed 10 C.F.R. { 72.212(b)(3)), determinations whether any of the I activities under the general license involve unreviewed safety questions or require technical specification changes for the facility in question (proposed 10 C.F.R. @ 72.212(b)(4)), review (and modification as necessary) of the site g security plan (proposed 10 C.F.R. 6 72.212(b)(5)), and review (and modifica-g tion as necessary) of the reactor emergency plan, quality assurance prcgram, training program, and radiation protection program (proposed 10 C F.R.

Q 72.212(b)(6)). If enacted, the proposed amendments to Part 72 would I reduce the time required for Staff review prior to approval of the use of a dry cask at an operating reactor, but it will have little effect on the time required by the licensee to perform the necessary evaluations and program l l modifications. It does not appear that the proposed amendment will have W any effect on the time (which is presently unknown) required for the Staff to approve a cask for BWR spent fuel. Finally, it does not appear that the proposed amendments to Part 72 extend to such storage technologies as the Robinson storage module. See 54 Fed. Reg. at 19382.

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in no event would the dry cask alternative in fact permit the uninterrupted operation of Vermont Yankee with full core reserve. 1 Comparative Environmental Effects. A comparison of the environmental effects of re-racking versus dry casks is the comparison of two intrinsically small values. Nonetheless, dry casks are not only not environmentally I superior, and not environmentally superior by a signifir?nt margin, they are

. environmentally inferior (albeit marginally so).

On many points of assessment, the two technologies produce equal en-vironmental scores on account of the fact that spent fuel assemblies must be offloaded into the spent fuel pool and reside there for a minimum of five years before being transferred into dry casks. Licensee's Direct Testimony at 12-14. Thus, the bulk of occupational exposures -- both for implementa-ticn of either alternative and for operation after having implemented either alternative -- in each case is a function of the offloadmg of freshly I discharged spent fuel into the pool, and this factor bears equally on both alternatives. Licensee's Direct Testimony at 13. Also likewise for gaseous, liquid and solid effluent. Licensee's Direct Testimony at 14. On the other hand, the dry cask alternative carries with it certain radiological environ-mental costs that, while small, are not likewise associated with the re-racking alternative; these include a contribution to the site boundary direct dose from the spent fuel in the casks (Licensee's Direct Testimony at 12-13),

incremental fuel handling occupational exposures (since with the dry cask alternative each spent fuel assembly must be moved twice: once into the pool and then again into the cask) (Licensee's Direct Testimony at 13), and incre-mental operational occupational exposures on account of cask-surveillance requirements (Licensee's Direct Testimony at 13). Thus, from a radiological perspective, while either alternative has a minimal impact, re-racicing is preferable and dry casks have no advantage.

On the non-radiological side, the environmental effects consist mainly of the thermal effluent and construction impacts. Licensee's Direct Testi-many at 15-16. The thermal load of either alternative is identically minimal, in part because the aggregate of heat that must be rejected is the same and I in part because the bulk of the heat to be produced by the spent fuel over its lifetime is produced in the first 5-10 years when the spent fuel would

( reside in the spent fuel pool under either scenario. Licensee's Direct Testi-1 L

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. g-many at 15. The comparative construction impacts, however, are not equal:

the cask alternative involves the use of more steel, much more concrete, and I more land area, as well as yielding on-site construction impacts that, while neither permanent nor particularly significant, are larger than the on-site  ;

construction impacts of re-racking. Licensee's Direct Testimony at 15-16.  ;

As a candidate to be an alternative with less environmental impact than re-racking, dry cask spant fuel storage is an abject failure.

Comparative Economic Costs. Notwithstanding uncertainties, and even penalizing the re-racking alternative with the cost of the Emergency Standby Sub-system enhancement to the Spent Fuel Pool Cooling System,7 the dry cask alternative, even were it environmentally superior, .is substantially more costly. With luck (that is te say, if site specific studies did not reveal the I need to construct a shielded structure in order to implement a dry cask storage program at the relatively constricted VYNPS site), the dry cask alternative can be expected to cost about twice what the re-racking (plus enhanced spent fuel pool cooling) will cost. Licensee's Direct Testimony at 17-18. With such a structure, the dry cask cost becomes about two-and-a-half times the cost of re-racking. Licensee's Direct Testimony at 16-19.

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Sunk Costs. In each of the foregoing respects, dry casks is not only not superior to, but rather is inferior (slightly) to, re-racking assuming all environmental and economic costs of either proposal to be prospective. That i illustrative assumption, however, accoi 's neither with Commission precedent nor reality. Op. cit. note 3, supra. Rather, the inescapable fact is that, as of any time at which the Commission might be asked to compel the abandon-ment of re-racking in favor of dry casks, the bulk of the economic costs of re-racking and virtually all of the environmental costs of re-racking have l already been incurred. Licensee's Direct Testimony at 20. As a conse-quence, a switch at this time to dry casks would necessarily result in incurring both environmental and economic costs that, regardless of their l absolute or comparative magnitude, would be wholly gratuitous. Such a pro-I Which Vermont Yankee is prepared to do only for purposes of argu-7 ment; the enhancement to the Spent Fuel Pool Cooling System was not pro-posed to accommodate any cooling capacity inadequacy of the existing system and cannot legitimately be counted as a necessary cost of implementing the I re-racking alternative.

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position is so unreasonable as, frankly, to call into question the bona fides of its advocates.

Conclusion For the foregoing reasons, the facts established beyond any genuine and substantial dispute demonstrate that Environmental Contention 3 is invalid I and should be dismissed.

ly submitted, I .

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I John A. itsher R. K. Gad III Ropes & Gray One International Place Boston, Massachusetts 02110 Telephone: 617-951-7000 Dated: May 23,1989.

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