ML19343B714
| ML19343B714 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 12/22/1980 |
| From: | Hoefling R, Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8012300143 | |
| Download: ML19343B714 (81) | |
Text
TABLE OF CONTENTS Page INTRODUCTION 1
BACKGROUND 3
RELATED EVENTS 10 THE INITIAL DECISION 18 ARGUMENT 19 Summary of Argument 19 I.
The Atomic Energy Act and Regulations Authorize the Issuance of a Special Nuclear Material License Without Finding Absolute Assurance of No Risk.
23 II.
The Staff's Environmental Impact Assessment In This Proceeding Satisfied NEPA's Requirements 33 A.
The Licensing Board fails to recognize that the Cascade Plan, if it exists, is a private plan not subject to NEPA.
37 B.
The proposed federal action in the instant case is limited to a license amendment authorizing transshipment of 300 spent fuel assemblies from Oconee to McGuire.
42 C.
The Staff's EIA is not illegally segmented or restricted in scope by failing to consider a Cascade Plan.
44 D.
Neither Cammission regulations nor applicable case law require preparation of an environmental impact statement on Duke's transshipment proposal.
53 E.
Neither NEPA nor the evidentiary record requires the selection of an alternative other than the transshipment proposal.
55 i
0 20 QDO
III.
The Staff Satisfied Each of the Five-Factors in the Comissions's September 16, 1975 Notice by Issuing the FGEIS or by the Evidence in This Proceeding.
59 A.
The Issuance of the FGEIS eliminated the I
need for further consideration in this proceeding of the five-factor tests.
60 l
B.
The Staff has satisfied the five-factor test in this proceeding.
61 IV.
The Licensing Board Comitted Other Significant Errors.
65 A.
Community fears and psychological stress 65 B.
Cumulative environmental impacts 67 C.
Sabotage 69 D.
Cask drop accident 73
)
CONCLOSION 79 8
ii
TABLE OF CITATIONS Cases Page Aberdeen and Rockfish R. Company v. SCRAP, 422 42, 49, 70 U.S. 289 (1975)
American Airlines, Inc. v. CAB, 359 F.2d 624, cert.
denied 385 U.S. 843 (1966) 72 Andrus v. Sierra Club, 442 U.S. 347 (1979) 42 Atlanta Coalition, Etc. v. Atlanta Regional Com'n.,
37, 38, 39, 599 F.2d 1333 (5th Cir.1979) 41, 54 Cady v. Morton, 527 F.2d 786 (9th Cir.1975) 48 Citizens for Safe Power, Inc. v. N.R.C., 524 F.2d 1291 (D.C.
57 Ci r. 19 75 )
City of Rochester v. United States Postal Service, 541 F.2d 48 967 (2nd Cir.1976)
Conservation Society of Southern Vermont v. Secretary of 46, 49 Transportation, 531 F.2d 637 (2nd Cir.1976)
County of Suffolk v. Secretary of the Interior, 562 F.2d 24 1368 (2nd Cir.1977), cert. denied 434 U.S.1064 (1978)
Ecology Action v. AEC, 492 F.2d 998 (2nd Cir.1974) 72 Friends of the Earth v. Coleman, 513 F.2d 295 (9th Cir.
24, 46, 49 1975)
Friends of the Earth, Inc. v. Coleman, 518 F.2d 323 (9th Cir.
37 1975)
Henry v. FPC, 513 F.2d 395 (D.C. Cir.1975) 48 Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir.
44, 46, 48, 19 73) 54 Kleppe v. Sierra Club, 427 U.S. 390 (1976) 34, 37, 38, 39, 40,-42, 54 Mobil Oil Corporation v. FTC, 562 F.2d 170 (2nd Cir.1977) 54 Nader v. NRC, 513 F.2d 1045 (D.C. Cir.1975) 27 iii
Page Nader v. Ray, 363 F.Supp. 946 (D.D.C.1973) 27 Named Members of San Antonio Conservation Society v.
48 Texas Highway Department, 446 F.2d 1013 (5th Cir.1971),
cert. denied 406 U.S. 933 (1972)
National Resources Defense Council v. NRC, 547 F.2d 633 (1976) 72 Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 24 827 (D.C. Cir.19 72)
New England Coalition on Nuclear Power v. NRC, 582 F.2d 87 58 (1st Cir.1978)
North Anna Environmental Coalition v. NRC, 533 F.2d 655 27 (D.C. Ci r.19 76)
Scientists' Institute for Public Infonnation, Inc. v.
48 Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir.1973)
SEC v. Chenery Corp. 332 U.S.194, rehearing denied, 332 71 U.S. 783 (1947)
Sierra Club v. Callaway, 499 F.2d 982 (5th Cir.1974) 45, 46 Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir.1976) 46, 49 Sierra Club v. Hathaway, 579 F.2d 1162 (9th Cir.1978) 54 Sierra Club v. Stamm, 507 F.2d 788 (10th Cir.1974) 46 State of Minnesota v. NRC, 602 F.2d 412 (D.C. Cir.1979) 47, 51, 72 Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 45, 47 231 (3rd Cir.1980)
Swain v. Brinegar, 542 F.2d 364 (7th Cir.1976) 46, 47, 54 Thompson v. Fugate, 347 F.Supp.120 (E.D. Va.1972) 48 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.1974) 46, 49 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 24, 64, 72 (1978)
Virginia Electric and Power Company v. NRC, 571 F.2d 1289 20 (4tn Cir.1978) iv
NRC Cases Pace Commonwealth Edison Capany (Zion Station, Units 1 and 2),
ALAB-616,12 NRC _, (Slip Opinion, p. 3) (1980) 27 Consumer Power Cmpany (Midland Plant, Units 1 and 2),
ALAB-458, 7 NRC 155 (1978) 43, 57 Duke Power Capany (Arendment to Materials License SNM-1773 for Oconee Nuclear Station Spent Fuel Transportation and Storage at McGuire Nuclear Station, LBP-80,12 NRC (October 31, 1980) 2 Duke Power Capany (Catawba Nuclear Station, Units 1 and 2),
LBP-74-22, 7 AEC 659 (1974) 52 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-80-39,12 NRC (December 5,1980) 65 Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347 (1975) 66, 67 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) ALAB-455, 7 NRC 41 (1978) 38, 66 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 (1978) 30, 71, 73 Portland General Electric Company (Trojan Nuclear Plant)
ALAB-531, 9 NRC 263 (1979) 57, 64 Public Service Capany of New Hampshire (Seabrook Station, Units 1 and 2) CLI-77-8, 5 NRC 503 (1977) 38, 42, 43, 58 Public Service Capany of New Hampshire (Seabrook Station, Units 1 and 2) ALAB-422, 6 NRC 33 (1977) 24 Vermont Yankee Nuclear Power Corporation (Vemont Yankee Nuclear Station) ALAB-455, 7 NRC 41 (1978) 38, Virginia Electric and Power Comoany (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451 (1980) 57, 58 v
FEDERAL REGISTER Page 40 Fed. Reg. 42801 (1975) 12, 13, 14, 49, 50, 52, 59 42 Fed. Reg. 65334 (1977) 15 43 Fed. Reg. 61057 (1978) 6 44 Fed. Reg. 49317 (1979) 60 45 Fed. Reg. 13739 (1980) 54 45 Fed. Reg. 62948 (1980) 10 45 Fed. Reg. 74693 (1980).
14, 50, 58 45 Fed. Reg. 74698 (1980) 14, 58, 60 45 Fed. Reg. 74703 (1980) 58 45 Fed. Reg. 74704 (1980) 58
~
REGULATIONS 10 C.F.R. Part 2, Appendix A 68,.69 10 C. F. R. 9 2. 715 70 10 C. F.R. 9 2. 743(1) 14, 51-10 C.F.R. 9 2.758 33 10 C.F.R. Part 50 1, 53 l
10 C. F.R. Part 51 53, 54, 57 l
10 C. F. R. 51.5 53 i
10 C.F.R. 9 51.20(g)(1) 6, 53 10 C. F.R. Part 70 1
26 i
i vi I
1 Page 10 C.F.R. Part 71 2, 20, 32,-33, 57 10 C. F.R. 6 71.12 32 10 C. F.R. 6 71.12(b) 2 10 C.F.R. Part 72 14, 57, 60 10 C. F.R. 72.70 14, 58 10 C.F.R. Part 73 22, 57, 70 10 C.F.R. 6 73.37(c) 2 49 C. F.R. Parts 170-189 2
STATUTES Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011, eji seq.
Passim' National Environmental Policy Act of 1969, 42 U.S.C. 4321, Passim ejiseg.
MISCELLANEOUS 1
H. Doc. No.96-266, Feb.12,1980 11, 17 i
Report to the President by the Interagency Review Group on 16 Nuclear Waste Management, March 1979 (TID-29442) vii
UNITED STATES OF AriERICA NUCLEAR REGULATORY COMtilSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
DUKE POWER COMPANY
)
)
Docket No. 70-2623
( Amendment to Materials License
)
SNM-1773 For Oconee Nuclear
)
Station Spent Fuel Transportation
)
and Storage at McGuire Nuclear
)
Station)
)
NRC STAFF BRIEF ON EXCEPTIONS TO INITIAL DECISION OF THE ATOMIC SAFETY AND LICENSING BOARD INTRODUCTION This proceeding concerns a March 9,1978, application by the Duke Power Company (" Applicant" or " Duke") for an amendment _to a materials license so that it would be authorized to receive and store in its McGuire Unit 1 spent fuel pool (SFP) not more than 300 spent fuel assemblies from its Oconee nuclear plants.M This specific authority is the only new authority which y
The amendment would be to a special nuclear materials license (SNM-1773) which authorizes the storage of new (i.e. not irradiated) nuclear fuel at the McGuire Nuclear Station, Unit 1.
The amendment was sought under 10 C.F.R. Part 70 since the Applicant did not know when the McGuire Part 50 Operating License would be issued. The issuance of a Part 50 license to operate the McGuire Plant is not a prerequisite to approval of the appif-cation to amend the SNM license.
Duke requested that the license amendment be issued by December 1,1978, in order to provide for orderly planning (Applicant's Exhibit 2, "Infor-mation Supporting Storage of Oconee Spent Fuel at McGuire (March 9,1978)."
(Tr. 651). While Duke requested no specific number of spent fuel assemblies in its application, the Staff's approval of the amendment was limited to not more than 300 such assemblies.
the Applicant needs to move the Oconee spent fuel to the McGuire Unit 1 SFP.
With tne requested authorization to receive and store the Oconee fuel at McGuire, the Applicant could transport the fuel in shipping casks which have already been certified by NRC, under a general license (10 C.F.R. 9 71.12(b)),E and with the prior NRC Staff approval of the specific route to be used (10 C.F.R. 9 73.37(c)). The shipments must also comply with applicable requirements in Department of Transportation ("D0T") regulations.
(e.g.,
49 C. F.R. Parts 170-189).
If there were in existence an authorized facility (e.g. a reprocessing plant or a storage facility) to send the spent fuel to, the Applicant would need no additional specific licensing authority to transport the fuel.
A contested adjudicatory proceeding was conducted by a presiding Atomic Safety and Licensing Board (Licensing Board) on the license amendment.
Intervening parties appeared in the proceeding in opposition to the amend-ment. The Applicant and NRC Staff supported the amendment.
In its Initial Decision dated October 31, 1980, the Licensing Board concluded, among other things, that the " appropriate course of action from an environmental and
(
safety viewpoint is the denial of the requested license amendment."
(Initial l
Decision at 91).3_/ It is the considered judgment of the NRC Staff that the i
I 2f Tne specific casks which would be used are NFS-4 (also designated NAC-1) and NLI-1/2 casks designed to transport one fuel assembly. Both casks meet the requirements called for by 10 C.F.R. Part 71; the NRC certificate of compliance number of the NFS-4 cask is 6698 and of the NLI-1/2 cask is 9010.
l
_3]
Duke Power Company (Amendment to Materials License SNM-1773 for Oconee Nuclear Station Spent Fuel Transportation and Storage at McGuire Nuclear Station, LBP, 12 NRC (October 31,1980).
- _. J Initial Decision is based on significant and highly prejudicial errors involving the interpretation and application of the Atomic Energy Act of 1954, as amended, ("the Act"), 42 U.S.C. 2011 et seq., certain of the Commis-sion's implementing regulations, and the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. 4321 et seq., and related judicial decisions.
Accordingly, the NRC Staff filed exceptions to the Initial Decision on November 10, 1980. This brief supports these exceptions.O BACKGROUND For purposes of this appeal, we rely on the procedural background of the proceeding before the Licensing Board as summarized in that Board's Initial Decision (pp.1-10). The contentions which were admitted by the Licensing Board are set forth in the Initial Decision [ Natural Resources Defense 4/
This should have been a relatively simple and straightforward case even though the issuance of the license amendment was contested below by Intervenors' Natural Resources Defense Council and Carolina Environmental Study Group. The numerous issues which we have raised in our exceptions, however, are not the product of either sharply argued questions of law or disputed questions of fact on matters of great significance. Rather these issues are the product of the Licensing Board's erroneous application of fundamental and well established principles in the licensing and regula-tory process under the Act, the Commission's implementing recintions, NRC practice, and NEPA. These errors, coupled with the Licensing Board's misunderstanding or misapplication of the evidentiary record in certain areas, have resulted in errors of varying degrees of importance through-out the Initial Decision after its first 10 introductory pages. As administrators of the licensing and regulatory process, the Staff's principal concern in such circumstances is to assure that substantial and fundamental errors are identified and argued on appeal. Accordingly, our exceptions in this proceeding and this supporting brief concentrate on such errors.
Council's (NRDC)E contentions at pp. 7-8 and Carolina Environmental Study Group's (CESG) at pp. 8-9].
Among other things, NRDC contended, in effect, that the proposed action is more than the mere authorization of the receipt and storage of 300 Oconee spent fuel assemblies (SFA) at McGuire.
It is, according to NRDC, but one step in a proposed program by Duke to deal witt the shortage of spent fuel storage space away from the reactor where the spent fuel was generated.
Moreover, NRDC contended that the proposed action has no independent utility in solving the spent fuel storage problem and will foreclose at-reactor options at both Oconee and McGuire. Thus, according to NRDC, the proposed action cannot be licensed until the completion of certain enumerated environ-mental impact statements on the proposed program for handling spent fuel which were then being prepared by the Department of Energy (DOE) and the NRC. The central thrust of NRDC's position was that each reactor at a particular site should be provided with spent fuel storage capacity either by expansion of the existing spent fuel capacity or by the construction of an independent spent fuel facility at that site. NRDC and CESG contended that the proposed action is a major federal action significantly affecting the quality of the human environment and cannot be acted upon until prepara-tion of a final environmental impact statement. NRDC and CESG also anjued S/
NRDC's petition to intervene was denied by the Licensing Board's order of November 2,1978. That denial was overturned, however, by an Atomic Safety and Licensing Appeal Board (Appeal Board) in an unpublished order entered on February 13, 1979. The Appeal Board granted intervention to NRDC on a discretionary basis.
that alternatives other than the proposed Oconee to McGuire shipments were not adequately considered.
Intervenors' contentions raised issues in areas other than NEPA.
NRDC contended that the Applicant has failed to demonstrate compliance with applicable Commission safeguards regulations.
For its part, CESG asserted that the transportation of the spent fuel from Oconee to McGuire will create an unacceptable hazard by significantly increasing the radiation doses to persons in the region, because, generally, there is likely to be an unaccept-able incremental burden of radiation dose to persons in the vicinity due to an accident or delay in transit. CESG also challenged the adequacy of the Applicant's analysis and the Staff's review of the postulated cask drop accident in the McGuire spent fuel pool.
Upon receipt of the amendment application, the Staff instituted its own independent review and analysis. The products of this review were an Environ-mental Impact Appraisal ("EIA") issued in December,1978 and a Safety Evalua-tion Report ("SER") issued in January,1979.
(Staff Exhibits 3, 7, 24, 28 and 33.) Among other things, the EIA stated (at p. vii):
Transportation of spent fuel is within limits set forth in l
the Commission's regulations [in] 10 CFR Part 71 and Table S-4 of 10 CFR Part 51 and D0T regulations [in] 49 CFR Parts 170 to 189. Although not bound by values in Table S-4, this action will result in values less than those given.
Summary Table S-4 " Environmental Impact of Transportation of Fuel and Waste to and From One Light-Water-Cooled Nuclear Power Reactor" is a part of the Commission's regulations.
(10 C.F.R. 6 51.20(g)(1)).
Data supporting this table are given in the Commission's " Environmental Survey of Transportation of Radioactive Materials to and from Nuclear Power Plants," WASH-1238, December 1972, and Supp.1 NUREG-75/038, April 1975.
The EIA also considered the potential impacts of postulated transportation accidents (Staff Exhibit 3, at 33-39), and concluded (at p. 37) that the level of exposure to an individual would be insignificant and that in any case the probability of the accident occurring is remote.
The EIA includes (at pp. 57-58) a cost-benefit analysis to demonstrate that the proposed transshipment of Oconee spent fuel to McGuire is a short-term option that is a cost-effective method of.providing additional needed spent fuel storage capacity to the Oconee fac.ity without causing significant environmental impacts.
The EIA also discussed alternatives to the proposed action (i.e. the shipment of 300 Oconee spent fuel assemblies to McGuire), and concluded (at pp. 58-59) that there are no better alternatives, on a cost and environmental basis, to substitute for the short-term spent fuel transportation and storage option.
Moreover, the EIA expressly stated that approval of "this action does not commit the NRC to approval of any suosequent actions." (EIA at 63).
The NRC Staff issued a " Negative Declaration Regarding Proposed Amendment to Materials License SNM-1773 " in Docket No. 70-2623 (43 Fed. Reg. 61057)
(1978).
(Staff Exhibit 35, Tr. 4651).
Based on the analysis in the EIA, the Negative Declaration stated that there will be no environmental impact significantly affecting the quality of the human environment attributable to the proposed action. Thus, the Staff concluded that no environmental impact statement (EIS) was warranted on the requested license amendment. The EIA reached that conclusion based on the proposed inclusion of a condition limiting shipment and storage to 300, 270-day old Oconee spent fuel assemblies.
The SER examining the health and safety aspects of the license amendment concluded that the issuance of the license amendment would not be inimical to the common defense and security and would not constitute an undue risk to the health and safety of the public. The SER further concluded (at p.10-11) that the request for the license amendment meets the requirements of the Act and the regulations of the Commission.
In addition, the Staff and the Applicant presented testimony at the hearing to the effect that the potential radiological impacts associated with the proposed amendment would be insignificant.E 6]
EIA at 29-38; Staff Exh.11A (Testimony of John V. Nehemias (Tr. 2627, 3055)); Staff Exn. 20 (Testimony of John V. Nehemias (Tr. 3053)); Staff Exh.10A (Testimony of Dr. Michael A. Parsont (Tr. 2627, 3055)); Staff Exh.
21 (Supplemental Testimony of Michael A. Parsont (Tr. 3054); Staff Exh. 6 (Testimony of C. Vernon Hodge and R. Daniel Glenn (Tr.1547)); Staff Exh.
9 (Testimony of C. Vernon Hodge, Jerry E. Jackson and R. Daniel Glenn (Tr.1658)); Staff Exhibits 37 and 38 (Testimony of R. Daniel Glenn and C. Vernon Hodge (Tr. 4870)); (Staff Exh.13 (Testimony of Brett S. Spitalny and R. Daniel Glenn (Tr. 3841, fol. 3844)); Applicant Exh.12 (Testimony of Dr. Leonard D. Hamilton (Tr. 1460,2877)); Applicant Exh. 15 (Testimony of Lionel Lewis (Tr.1824)); Applicant Exh. 24 (Supplemental Testimony of Dr. Leonard Hamilton (Tr. 2949)); and Applicant Exh. 32 (Supplemental Testimony of Lionel Lewis (Tr. 4804)).
i 1 I Neither NRDC nor CESG established any facts that would warrant looking further into either the existence or significance of any environmental I
impacts from the proposed transshipment and storage action. Both NRDC and CESG attempted to show that there are preferred option. to er.eliorate the Oconee spent fuel storage problem that have not been adequately considered.
Their attempt was made without seriously contesting whether the proposed action itself will have significant adverse environmental impacts. NRDC's main thrust was the need to maintain on site storage of spent fuel, consider-ation of alternatives and schedules for implementation of alternatives, and consideration of the Government's policies on interim and permanent waste storage facilities.2/ NRDC extensively cross-examined Staff's and Appli-cant's witnesses with respect to the admitted contentions. NRDC did not, however, either in its direct case or otherwise, identify any significant environmental impact from the proposed action. CESG attempted to put on a direct case with respect to its contention (No. 3) involving the signifi-cance of environmental impacts. CESG's direct testimony was only admitted in part for a limited purpose, however. / The remainder was rejected as I
=
J/
NRDC Exh.138 (Testimony of Dimitri Rotow (Tr. 2229)); NRDC Exh. No.13C (NRDC Findings on the Alleged Need for Acquisition or Construction of An Away From Reactor Spent Fuel Storage Facility (Tr. 2229)); NRDC Exh.130 j
l (No Need for AFR's (May 1,1979) (Tr. 2229)); NRDC Exh. No.14A (Testimony of Arthur R. Tamplin and Thomas B. Cochran (Tr. 2370)); NRDC Exh.17A i
( Affidavit of Thomas B. Cochran, PhD (5/29/79) (Tr. 2370)).
8/
Tr. 2409-2456; Tr. 2412; Tr. 2455 (CESG Exh. 5 admitted on limited basis as argument; see Tr. 2376-2403; Tr. 2382-83).
I i
_g-inadmissible as evidence but came into the record as argument.E The CESG testimony that was admitted did not identify, however, any significant environmental impact with respect to the license amendment.E The Staff's EIA considered several feasible alternatives to ameliorate the Applicant's short-tem spent fuel problem. These alternatives can be basically categcrized as internal transshipment to other space available within Duke's system, reracking of the Oconee spent fuel pools with stain-less steel racks or with poison racks to increase spent fuel pool storage capacity, and the construction of an independent spent fuel -storage installation (ISFSI) by Duke.
(See Staff Exhibit 36, Enclosure 2, entitled
" Alternatives for the Storage of Oconee Spent Fuel," fol. Tr. 4807 (Tr.
4855) and Staff Exhibit 3 at pp. 49-57.) The Staff concluded that the proposed transshipment action is reasonable, provides flexibility, and results in environmental impacts of equal or lesser magnitude than any other option considered in the proceeding.E 9]
Tr. 2455-56; see Tr. 2382-83.
10/ Ibid.
-11/ Staff Exh.19B at p. 6 following Tr. 3841, fol. 3844 (Testimony of Brett S. Spitalny and R. Daniel Glenn). See also Staff Exh. 3 at p. 59.
[ --
RELATED EVENTS Dr. Worth Bateman, Deputy Undersecretary of the Department of Energy, who was called as a Licensing Board witness, testified that the Government would provide an Away-From-Reactor (AFR) spent fuel facility for use by utilities by 1985 in conjunction with the Administration's reprocessing and nonprolifer-ation policy. The provision of AFR space was based on the Department of Enenjy's assessment of nation-wide utility plans for the future. DOE's provi-sion of AFR storage space assumes that utilities would take advantage of all currently available technical options, such as use of available space on the entire utility system and reracking options. The DOE policy also assumes that internal transshipment within a utility system would be pemitted in order for utilities to take full advantage of all technical options available.N Subsequent to the filing of this application on March 1,1978, the Applicant applied for, and the NRC approved, an amendment which would authorize the installation of high-density, stainless steel racks in Oconee Units 1 and 2.
(Initial Decision at 38).
In addition, Duke has applied for a license amendment to authorize the reracking of the Oconee Units 1 and 2 spent fuel pool with poison racks.EI M/ Testimony of Dr. Worth Bateman, Deputy Undersecretary, U.S. Department of Energy, Tr. 4513-15; Tr. 4516, 4515-18; 4534-37; 4548-51; 4562-64; 4581-82; 4594; 4601, 4603.
M/ The amendment request is noticed at 45 Fed. Reg. 62948, (September 22, 1980).
P~.or to the requested amendment in the instant proceeding, Duke requested and was granted in 1976 an amendment which permitted the expansion of Oconee Unit 3 storage from 216 to 474 assemblies.
The storage of commercial spent fuel is primarily a responsibility of the utilities.N From the early days of the nuclear power industry in this country, electric utilities planning to constrgt and operate light water power reactors, and, until April,1977, the Government contemplated that the used or spent fuel discharged from the reactors would be chemically repro-
- essed to recover the residual quantities of fissile and fertile materials (uranium and plutonium), and that the materials so recovered would be recycled back into fresh reactor fuel.
It was also contemplated by the nuclear industry that spent fuel would be discharged periodically _ from operating reactors, stored in onsite fuel storage pools for a period of time (to pemit radioactive decay of short-lived radioisotopes contained within the fuel, as well as themal decay) and periodically shipped off-site for reprocessing. Typically, space was provided in onsite storage pocls for about 1-1/3 full nuclear reactor cores. Assuming a 3 to 4 year reactor fuel reload cycle, the onsite storage pools were planned to hold an average of one year's discharge with sufficient remaining capacity to hold a complete core should unloading of all of the fuel from the reactor be necessary or desirable for nomal maintenance or because-of operational difficulties.
Under nomal operating conditions, about 5 years' spent fuel discharge could l
be accommodated before the pools were filled.
(FGEISat1-1).
I l
l In the early 1970's, delays in the availability of spent fuel reprocessing facilities resulted in a serious nationwide shortage of spent fuel storage t
14/ See Presidential Message transmitting to the Congress A Report on His Comprehensive Radioactive Waste Management Program, H. Doc.
5 Proposals For No.96-265, Fev sary 12,1980 (Presidential Message).
i
~.,
- s pace.
In response to this situation, the Commission issued a notice of an
" Intent to Prepare Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel"
(" Notice of Intent"), 40 Fed. Reg. 42801 (September 16,1975).
The Comission, in this notice, alluding to a possible future shortage of spent fuel storage capacity, announced its intention to prepare a generic environmental impact statement (GEIS) on the subject to enable it to examine in a broad context the various alternatives for increasing that capacity.E In this connection, the Commission considered whether licensing actions designed "to ameliorate a possible shortage of spent fuel storage capacity, including such actions as the issuance of operating license amendments to pennit increase in the storage capacity of reactor spent fuel pools" should be deferred pending the issuance of the GEIS. Based upon its evaluation of five specific factors,$
15/ Altnough noting that the shortage would occur at individual reactors and that the issues involved in alleviating it could be addressed in individual licensing reviews, the Commission detennined that "from the standpoint of longer range policy, this matter can profitably be examined in a broader context." 40 Fed. Reg. 42801 at 42802 (1975).
16] Namely:
"(1) It is likely that each individual licensing action of this type would have a utility that is independent of the utility of other licensing actions of this type; (2)
It is not likely that the taking of any particular licensing action of this type during the time frame under consideration would consti-tute a commitment of resources that would tend to significantly foreclose the alternatives available with respect to any other individual licensing action of this type; (3)
It is likely that the taking of any particular licasing action of this type would be such that they could adequate'ty be addressed (Continued) tne Commission concluded there should be no blanket deferral of such licensing actions.
Ibid. The notice did not by its terms assign relative orders of weight to the five factors.
It directed, however, that in advance of the issuance of the GEIS, those factors shou.d be " applied, weighed, and balanced" within the context of an EIS or EIA " tailored to the facts of the case."
Ibid.
Included in the alternatives which the notice suggests for consideration in the GEIS is the storage of spent fuel from one or more reactors at the Ibid.E The notice also stated that the storage pools of other reactors.
16/ (Continued) 6 within the context of the individual license application without overlooking any cumulative environmental impacts; It is likely that any technical issues that may arise in the course (4) of a review of an individual license application can be resolved within that context; and (5) A deferral or severe restriction on licensing actions of this type would result in substantial ham to the public interest. As indi-cated, such a restriction or deferral could result in reactor shut-down as existing spent fuel pools become filled.
It now appears that the spent fuel pools of as many as 10 reactors could be filled by mid-1978.
These 10 reactors represent a total of about 6 million kilowatts of electrical energy generating capacity. The removal of these reactors from service could reduce the utilities' service margins to a point where reliable service would be in jeopardy, or force the utilities to rely more heavily on less economical or more polluting fonns of generation that would impose economic penalties on consumers and increase environmental impacts. (40 Fed. Reg. 42801 at 42802 (1975)).
17/ The other.iternatives listed included, but were "not necessarily limited to": pemitting the expansion of spent fuel storage capacity
~
at power reactors; permitting such expansion at reprocessing plants; licensing of an independent spent fuel storage facility; and ordering that generation of spent fuel (reactor operation) be stopped or restricted (40 Fed. Reg. 42801 at 42802 (1975)).
GEIS would address the impacts of possible additional transportation of spent fuel that may be required should one or more of the alternatives be adopted.
(40 Fed. Reg. 428015t 42802 (1975)).
In August 1979, during the pendency of this proceeding before the Licensing Board, the NRC Staff issued a Final Generic Environmental Statement on Handling and Storage of Spent Light Water Power Reactor Fuel (FGEIS), NUREG-0575.
Staff Counsel furnished copies of the FGEIS to the Licensing Board and the parties.E The FGEIS finds that as a generic matter for all utili-ties there are no generic environmental impact problems associated with intrautility transshipment and storage options (FGEIS, at ES-7-ES-10, ES-11-13, 3-21-75, 8-2, 8-3).
It states (at ES-10):
Based on the cumulative experience of 30 years of spent fuel shipments, both military 6ad comercial, and extensive analysis of potential accidents, the risk to the health and safety of the public from spent fuel shipping accidents is very small.
18f The FGEIS is not in the evidentiary record of this proceding. The Applicant in its proposed findings (at p. 5 n. 3) asked tP,e Licensing Board to take official notice of the staff position st.:ted in the FGEIS pursuant to 10 C.F.R. $ 2.743(i). The Licensing Board refe"s to the FGEIS in its Initial Decision (at pp. 27-28), noting that the Commission itself had not yet acted on the FGEIS although the Staff submitted it to i
I the Commission for its consideration. The FGEIS was submitted to the Commission since, among other things, it recommended that the Comission l
issue spent fuel storage facility regulations.
Subsequent to the l
publication of the FGEIS the Commission has issued 10 CFR Part 72,
" Licensing Requirements For the Storage of Spent Fuel In An Independent Spent Fuel Storage Installation," (45 FED. REG. 74693, Nov.12,1980)).
This regulation explicitly assumes that transshipments will ue involved.
l See 9 72.70, " Spent Fuel Transportation," and cites the FGEIS.
--Id. at 74709 and n. 5 at 74698.
I i
The FGEIS also noted that the alternatives for the storage of spent fuel are considered interim actions and not a final solution to the problem of pemanent dis posal.
(FGEIS at ES-1). The FGEIS noted in this regard that the Commission has expressed its concern that storage of spent fuel re st be used to justify retarding the development of a practicable method of pemanent disposal (Ibid.).
Significant national policy developments which arc relevant in assessing the independent utility of the alternatives' to deal with spent fuel storage until a workable national spent fuel policy is put in place occurred subse-quent to the issuance of the Commission's notice of intent on September 16, 1975. They were identified in the FGEIS in August 1979 and in Dr. Bateman's testimony.E These policy developments had a direct bearing on the spent fuel storage situation generally.
In April 1977, the President announced a nuclear nonproliferation policy which called for the indefinite deferral of all domestic commercial reprocessing and recycling of plutonium and the comencement of domestic and international studies of alternative fuel cycles. As a result, on December 23, 1977 (42 Fed. Reg. 65334, December 30, 1977), the Commission terminated its proceedings on the Generic Environmental Statement on Mixed Oxide Fuel (GESM0), pending license applications, and L
other matters relating to the reprocessing and recycle of spent light water reactor fuel. Utilities continued to store spent fuel at reactor sites and l
took measures to increase storage capacity.
19f FGEIS at ES-1 and S-1.
Dr. Bateman's testimony begins at Tr. 4513.
l
. In conjunction with the Executive policy for deferring indefinitely all commercial reprocessing, 00E on October 18, 1977 announced a new " Spent Nuclear Fuel Policy" for commercial nuclear power reactors. Under this policy, U.S. utilities would be given the opportunity to deliver spent fuel to the Federal Government on payment of a fee that would cover the govern-ment's costs. The statement noted that utilities are faced with the prospect of storing spent fuel for an indefinite period with no approved plan for its ultimate disposal and this produces uncertainty in the utilities' economic calculations and makes their advance planning difficult. The policy state-ment recognized the need for both interim and permanent spent fuel storage capabili ty:
The Department of Energy will begin immediately discussions with private industry to determine whether suitable interim fuel storage services can be provided to the govermnent on a contract basis. Utilities will be surveyed to provide an estimate of the amount and timing of spent fuel transfer to the government.
If adequate private storage services cannot be provided, government interim fuel storage facilities would be required.
Implementation of this policy requires specific Congressional authorization which has not yet been enacted. According to the Report to the President by the Interagency Review Group on Nuclear Waste Management (at p. 99), March 1979 (TID-29442) ("IRG Report"),1983 was the appropriate planning date for additional AFR storage.
(Applicant Exhibit 5, following Tr.1053; and Tr.
4588-4597).
The IRG Report includes the following (at p.101):
The IRG agrees that to the maximum extent possible spent fuel should be stored at reactors. Appropriate acceptance criteria will be required, but whether a specific cooling time, as suggested, is the preferred approach is not now clear.
Further analysis is required. Nonetheless, based on analysis available to the IRG and contained in the three published DOE draft environmental impact statements on domestic and foreign spent fuel policy and related c;.arges for storage and disposal, the IRG believes that conservative and prudent planning leads to the conclusions that some AFR storage capacity should be available roughly in the 1983 time frame for domestic use and could be needed earlier in connection with acceptance of foreign spent fuel.
In addition, the IRG. eels that at least one AFR can play an important role in buying time and permit-ting greater programmatic flexibility in the development and opening of LW disposal repositories.
Storage in AFRs must not, however, be pemitted to be substituted for continuing progress toward opening the first repository.
Availability of AFR Storage Capacity The needed AFR storage could be made available from existing facilities (at Barnwell, South Carolina; Morris, Illinois; and West Valley, New York), or from new facilities designed and constructed by DOE and private industry and leased to the governmant. The Tennessee Valley Authority (TVA) is consider-ing tne development of nuclear waste storage facilities to serve its own needs, and has indicated its plans could be modified to accommodate the nuclear storage needs of others.
These options are under active considerations.
According to the FGEIS (i.e. NUREG-0575), (at p.S-2), the DOE October 18, 1977, announcement has discouraged the private construction of AFR storage capaci ty.
~
In a message on nuclear waste to the 96th Congress (supra. note 14) the President of the United States said (H. Doc. No.96-266, at pp. 3-4):
I want to stress that interim spent fuel storage capacity is not an alternative to permanent disposal. However, adequate storage is necessary until repositories are available.
I urge the utility industry to continue to take all actions necessary to store spent fuel in a manner that will protect the public and ensure efficient and safe operation of power reactors. However, a limited amount of government storage capacity would provide flexibility to our national waste disposal program and an alternative for those utilities which are unable to expand their storage capabilities.
I reiterate the need for early enactment of my proposed spent nuclear fuel legislation. This proposal would authorize the Department of Enenjy to:
(1) design, acquire or construct and operate one or more away-from-reactor storage facilities, and (2) accept for storage, until pennanent disposal facili-ties are available, domestic spent fuel, and a limited amount of foreign spent fuel in cases when such action would further our non-proliferation policy objectives. All costs of storage, including the cost of locating, constructing and operating permanent geologic repositories, will be recovered through fees paid by utilities and other users of the services and will ultimately be borne by those who benefit from the activities generating the wastes.
The Initial Decision The Licensing Board, apparently accepting major parts of NRDC's and CESG's contentions which we have generally set forth, (supra., pp. 3-5), concluded that the appropriate course of action from an environmental and safety viewpoint is the denial of the requested license amendment which would 1
authorize the receipt and storage of 300 Oconee spent fuel elements in the I
McGuire spent fuel storage pool.
\\
The NRC Staff believes, as is evidenced by the 21 exceptions it filed in l
this proceeding on November 10, 1980, that the Licensing Board committed significant errors in reaching that conclusion as well as in each of the i
(
i l
- In -
other conclusions of law which the Licensing Board made in its Initial Decision at pp. 90-91. We now turn to our argument which we believe manifestly demonstrates that the Licensing Board's Initial Decision is grounded on gross legal errors and must be reversed.
ARGUMENT Summary of Argument The basis for the Staff's exceptions and the supporting argument are set forth in four separate points in this brief. Generally, we show that the Licensing Board's decision is based on two legal errors which permeate much of the Board's analysis. These are the Board's singling out the transporta-tion of spent fuel as having to satisfy what was in effect a no-risk standard, and its conclusion, either as a matter of fact or of NEPA law, that Duke's overall spent fuel plan must be considered in this proceeding.
In addition, we show that the Licensing Board comoounded these fundamental errors by procedural errors which were both substantial and prejudicial. The procedural errors generally relate to the Board's introduction of issues in its decision l
without giving the parties orior opportunity to address them, and its failure to confront the facts in the evidentiary record which directly relate to its analysis and findings.
i l
l r
y e
-wr-Under Point I we show that the Licensing Board applied the equivalent of an absolute no-risk standard to the transportation of special nuclear material.
This standard is plainly in conflict with the traditional reasonable assur-ance standard established by the Commission's implementing regulations, and applicable judicial and administrative decisions.
Even in the absence of any other error, the Licensing Board's departure from the traditional standard of risk is so fundamental that its Initial Decision must be reversed. We also argue that in its application of this standard to transportation, the Board also erred by failing to recognize the significance of the fact that the NFS-4 and NLI-1/2 shipping casks which would be used by Duke have been certified for use by the NRC and DOT pursuant to 10 C.F.R. Part 71.
In Point II we show that the Licensing Board misapplied applicable NEPA law in concluding that Duke's overall planning efforts for spent fuel storage and handling (the " Cascade Plan") El must be reviewed and evaluated as part of the proposed license amendment. When read in their entirety, none of the NEPA decisions invoked by the Licensing Board supports the proposition that l
M/ The Licensing Board at several places in its Initial Decision (e.g. at pp.10-15, 21-24) expresses concern that Duke may not have been candid l
with the NRC concerning any such plan. As an administrative matter, I
completely separate from this proceeding, the Staff has initiated an investigation of this subject. The Staff believes that this subject should be handled as an investigative matter, and need not be further l
addressed in this proceeding. As far as the Staff now is aware, the l
Applicant was forthcoming with all infornation needed by the Staff to l
review and evaluate the specific licensing amendment which is the subject i
of this proceeding. Compare Virginia Electric and Power Company Nuclear Regulatory Commission, 571 F.2d 1289,1291 (4tn Cir.1978).
l l
l l
l anything more than the requested NRC approval of the specific license amend-ment is proper for consideration as the " federal action" for NEPA purposes in this proceeding. We also show in Point II that the Licensing Board erroneously concluded, under applicable law and in light of the evidentiary record, that the EIA was inadequate, that an EIS was required, and that reracking or construction of an ISFSI are preferred alternatives to the proposed license amendment.
The argument under Point III demonstrates that the Licensing Board erred in holding that the issuance of the FGEIS did not eliminate the need for the five-factor balancing test as initially called for in the Commission's notice of September 16, 1975 in proceedings such as this one.
In any event, however, we show that the Licensing Board erroneously concluded that the proposed license amendment has no independent utility (Factor 1) and that it would significantly foreclose other available alternatives (Factor 2).
Since the five-factor test was evolved from NEPA segmentation decisions, most of the applicable legal discussion is covered under Point II and is not repeated in Point III.E Our arguments under Point IV cover separate areas in which the Licensing Board erred.
l
---21/
For example, our argument under Point II shows the error in the Licensing Board's finding that possible cumulative environmental impacts were not I
considered because only the proposed license amendment was evaluated (Factor 3, Initial Decision at 40-41,44).
l
~
. First, we show that the Licensing Board committed prejudicial procedural error by raising, and apparently giving weight to, psychological stress and community fears in its assessment of the adequacy of the EIA. The Licensing Board during the conduct of the hearing had correctly refused to admit these matters as an issue in the proceeding. Ac:ordingly, no party was given any opportunity to address it.
Second, we show that if the Licensing Board believed that there was a gap in the Staff's consideration of cumulative impacts, it should have so informed the Staff and given it an opportunity to respond to the Board's concern.
Third, we show that the Licensing Board erred in its analysis of malevolent conduct with respect to sabotage in that it failed to recognize, as the evidentiary record clearly substantiates, that the Applicant must satisfy the requirements of the Commission's regulations applicable to spent fuel transportation in 10 C.F.R. Part 73, as amended subsequent to issuance of the EIA.
Fourth, we show that the Licensing Board erred in finding that notwith-standing the protective measures to be provided by the Applicant and found acceptable by the Staff, emphasis should be placed on using a physical barrier to positively prevent a sr-'t fuel cask frau dropping into the spent fuel pool.
l I.
THE ATOMIC EfiERGY ACT AtlD REGULATIONS AUTHORIZE THE ISSUAf1CE OF A SPECIAL NUCLEAR MATERIAL LICENSE WITHOUT FINDIflG ABSOLUTE ASSURAf4CE OF NO RISK.
With one exception--the cask drop accident discussed infra (at p. 73) the Licensing Board's safety and environmental concerns with the transshipment of spent fuel seem to focus exclusively on the transportation of the spent fuel and not on its storage, loading into the casks or removal from the casks. This focus on transportation is puzzling in light of the generic attention which the transportation of radioactive material has received both in tems of environmental impact studies and in the Commission's regulations.
Apparently the Licensing Board was so concerned with the transportation of spent fuel that it applied, albeit erroneously, the equivalent of an absolute no-risk standard.
(Staff Exception 19 together with Exceptions 17 and 18).E i
Although the Licensing Board does not explicitly state that it is invoking a i
no-risk standard, language in the Initial Decision, coupled with the Licensing Board's ultimate conclusions of law (Initial Decision at p. 90) in the light of the evidentiary record, plainly leave no reasonable doubt that the Board j
22/ To some extent at least, the Licensing Board also seemed to apply such a standard in its consideration of the cask drop accident (Initial Decision at 85) which is the subject of Staff Exception 15 and is briefed infra under Part IV.
did in fact apply such a standard.E The Licensing Board decided that the reracking of spent fuel pools is a preferable alternative "because it elimi-nates any risk, however small, of radioactive releases to the public from the proposed intensive highway transshipment of spent fuel." (Initial Decision at p. 54, emphasis supplied). On page 57, the Licensing Board said that the EIA does not objectively appraise and evaluate the alternatives available to Duke to avoid extensive highway transshipments of radioactive spent fuel (empahsis supplied). And on page 58, the Board said that "in weighing alternatives the cheapest is not necessarily the best c:- the safest."
Continuing, the Board on page 59 said that the evidence in this proceeding was not persuasive in proving, by statistical analyses or engineering studies, that serious spent fuel transportation accidents or malevolent conduct could not occur (emphasis added). And, similarly, the Board said (on p. 61, footnotes omitted):b 23/ We note that the Board's failure to articulate its reasoning on such a fundamental matter is itself prejudicial error.
See, e.g., Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 41 (1977) and note 30, infra. This error, however, is subsumed by the Board's departure from the statutory standard of risk called for in the Atomic Energy Act of 1954, which standard is further imbedded in the Commis-sion's regulations and practice.
2_4/ On an issue unrelated to the proper risk standard matter being discussed, we suggest that the Board is probably wrong, at least as a general propo-sition, in its suggestion in the quote as to what is "not enough" in weighing alternatives under NEPA. Although the Board does not say what l
would be "enough," we simply note that by now it is axiomatic that NEPA embodies a rule of reason bounding an agency's obligation to examine possi-ble alternative courses of action. Not every possible alternative need be ferreted out and not every possible consequence of alternative courses of action need be examined. Vennont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837-838 (D.C. Cir.1972); Friends of the Earth v. Coleman, 513 F.2d 295, 297 (9th Cir.1975); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368,1378 (2nd Cir.1977), cert, denied, 434 U.S.1064 (1978).
See also Part II E, infra.
t The risks of truck highway accidents involving some release of radioactive materials likewise cannot be ruled out solely by statistical analyses or engineering studies.
It is not enough in weighing alternatives simply to conclude that spent fuel cases "would not breach in most accident situations", or that the " probability, of the accident occurring is remote",
or "the likelihood of a severe accident involving a cask is remote."
Finally, the Licensing Board (Initial Decision at p. 62) said:
Serious accidents unfortunately cannot be warded off by some statistical magic wand, as the very first or second shipment could be that ' remotely probable' event. * *
- NRC should be no less ' sensitive in considering alternatives which eliminate highway spent fuel transportation risks.
(emphasis supplied).
These specific references, in their totality and context, plainly reveal that in its evaluation of the proposed action, the Licensing Board invoked a no-risk standard for the highway transportation of spent fuel. This is erroneous because it is in conflict with the statutory standard under the Act. (See Part II E, infra, for the discussion regarding the consideration of residual risks under NEPA.) A no-risk standard could never be_ satisfied for transportation or any other part of nuclear activities. The Board does not explain why it singles out transportation for this standard, but not reracking or construction of an ISFSI which it found (Initial Decision at
- 62) to be preferable to Duke's transshipment proposals, "whether involving the Cascade Plan or the one-a-day transportation of 300 casks of spent fuel in one year." (Ibid.).
1.
The pertinent statutory standard directs the Commission not to issue a license for special nuclear material if it finds that "the issuance of such a license would be inimical to the common defense and security or would s
._ constitute an unreasonable risk to the health and safety of the public."
(Section 57c.(2) of the Act, 42 U.S.C. 2077c.(2)).E/
Section 70.31(d) of the Commission's regulations (10 C.F.R. Part 70 " Domestic Licensing of Special Nuclear Material") provides:El 25/ The same " unreasonable risk" standard applies if the Commission is to exempt special nuclear material from licensing. Section 57d. of the Act, 42 U.S.C. 2077(d) provides:
The Commission is authorized to establish classes of special nuclear material and to exempt certain classes or quantities of special nuclear material or kinds of uses or users from the requirements for a license set forth in this section when it makes a finding that the exemption of such classes or quanti-ties of special nuclear material or such kinds of uses or users would not be inimical to the ccamon defense and security and would not constitute an unreasonable risk to the health and safety of the public; 26/ The Commission has broad rulemaking power under the Act which authorizes it in the perfomance of its functions to:
[E]stablish by rule, regulation, or order such standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property; Sec.161b., 42 U.S.C. 220lb.
[P]rescribe such regulations or orders as it may deem necessary
~
... to govern any activity authorized pursuant to this Act, including standards and restrictions governing the design, i-location, and operation of facilities used in the conduct of l
such activity, in order to protect health and to minimize l
danger to life or property; Sec. 1611., 42 U.S.C. 22011.
i
[M]ake, promulgate, issue, rescind, and amend such rules and regulations as may be necessary to carry out the purposes of this Act. Sec.161p., 42 U.S.C. 2201p.
No license will be issued by the Commission to any person within the United States if the Commission finds that the issuance of such license would be inimical to the common defense and security or would constitute an unreasonable risk to the health and safety of the public.
These statutory standards and their implementing regulations have never been interpreted and applied either administratively or judicially to impose a no-risk standard called for by the Licensing Board in this proceeding. The court's remarks in Nader v. Ray, 363 F. Supp. 946, 954 (0.0.C.1973) are l
pertinent here:
Absolute certainty or " complete," " entire," or " perfect" safety is not required by the Atomic Energy Act, nor does nuclear safety technology admit of such a standard. Power Reactor Development Co. v. Int'l Union, Electrical Workers, suora; cf. Crowther v. Saaborg, 312 F. Supp.1205,1234 (D.
Col o. 19 70). The Supreme Court recognized in the Power Reactor case that nuclear technology is subject to change.
367 U.S. at 408, 81 S.Ct.1529, 6 L.Ed.2d 924. What consti-tutes " reasonable assurance of adequate protection" is also subject to change, as the state of the nuclear safety art advances.
Cf. Crowther v. Seaborg, supra.
It is for the Commission to weigh the state of that art, the risk of acci-dents, the record of past perfonnance, the need for further improvement in nuclear safety matters, and other considera-tions. Balancing these factors calls for the exercise of discretion by the expert agency....
See also Nader v. NRC, 513 F.2d 1045,1050-1052 (D.C. Cir.1975); North Anna Environmental Coalition v. NRC, 533 F.2d 655, 667 (D.C. Cir.1976); and Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616,12 NRC
, (Slip opinion, p. 3) (1980).
The no-risk standard which the Board applied 'to the transport of spent fuel plainly conflicts with applicable law, precedent, and agency practice, and is therefore clearly erroneous and must be reversed.
2.
Along with the application of its "no-risk" standard, the Licensing Board made a number of adverse findings with respect to the transportation of spent fuel. The Board concluded that the 300 spent fuel shipments which were the subject of this licensing action would all be made within the period of one year.E While the 300 shipments certainly could be made within one year were the action approved, there is no requirement that this be the case and there is no record basis for the Board's conclusion in that regard. The record indicates otherwise.
(See Attachment to Applicant Exhibit 23E, and NRDC Exhibits 7 and 9).
In any event, the Staff's assess-ment of environmental consequences and radiation exposures was based upon a campaign of 300 shipments and analyses with respect to cumulative radiological exposures and cumulative risks in transportation accidents were performed.E The Staff's conclusions with respect to transportation accident risks were based upon the transportation of 300 spent fuel shipments.
Indeed, the Board concluded that the incremental radiation doses from routine transpor-i tation and the radiation doses to persons traveling over the transportation routes concurrently with spent fuel shipments are small. When compared to the dose levels of background radiation which are encountered annually by B
Initaal Decision, at 45-46.
In its discussion in this area, the Board was also apparently confused with respect to the length of time for each l
shipment.
Id. p. 45. The Staff assumed that each shipment would take l
six hours.
EIA p. 31. Of this six-hour period, five hours would be road time with the drivers in the truck cab and ore hour would be spent outside the truck visually checking safety-related items.
EIA p. 30. Although not a matter to labor in view of the other substantial errors in the decision, the Licensing Board apparently overlooked the time which would be spent outside the truck.
The significance of the point made, however, is that this is another example of the Board's failure to confront all of the l
relevant facts in its analysis of issues and the record.
28/ EIA, pp. 30-39; Staff Exhibits 6 and 9.
l l
the population at large, the health effects associated with the small increase in doses to persons living in the vicinity of the transportation routes are within acceptable limits (Initial Decision at 73-76).
The Board found that there are virtually no health effects from routine transshipments.
(Initial Decision at 69).
With respect to accidents, a voluminous record was develop 2d which established that the accident risks associated with the transportation of 300 spent fuel assemblies from Oconee to McGuire were acceptable. Applicant and Staff expert testimony on this point was substantial.E All this expert testimony was with specific reference to the proposed transportation campaign of 300 spent fuel shipments from Oconee to McGuire. Consequently, there is simply no record support for the Board's finding (at p. 47) that It is likely that such an unusi..:' concentration of shipments in a period of one year might could intensify some of the risks and problems associated wt ! the transportation of high-letel radioactive waste or gent fuel.
(footnote omit-ted) However, the EIA does not even identify this unusually intensive use of the public highways in North and South Carolina, let alone analyze it or evaluate its ramifications in relation to possible environmental or safety impacts.
The Board failed to articulate any basis to support such a finding and this is clearly error and contrary to Appeal Board rulings reminding licensing 29/ EIA, pp. 33-39; Staff Exhibit 9; Staff Exhibit 37, p. 4, Table 2; Applicant 9
Exhibit 9 & 25; Applicant Exhibit 10; Applicant Exhibit 8; Applicant Exhibit 12 & 24
, boanis of their obligation "to articulate in reasona51e detail the basis for their deteminations."E The Board also misinterprets the Staff testimony with respect to truck
~
accidents involving spent fuel shipments which have occurred in the past.
The Staff reviewed past history with respect to spent fuel shipments and identified two truck accidents.
In neither case was any radioactive material released from the casks involved.
In neither instance was there any damage to the cask which precluded its continued shipment to its desti-nation.
(Staff Exhibit 9, pp. 5-7).
Consequently, these were the type of truck accidents which are routinely encountered in highway transportation.
--30/
See, M., Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410-12 (1978). The pertinent language (from 410-412) is:
A long time ago, we reminded the licensing boards of [their]
obligation "to articulate in reasonable detail the' basis for their determinations" on the questions coming before them for decision. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179 (1973), citing Greater Boston Television Corp. v. Federal Communications Commission, 444 F.2d 841, 851-53 (D.C. Cir.
1970), certiorari denied, 403 U.S. 923 (1971). By way of elaboration, we referred to
... the general duty of licensing boards to insure that initial decisions and miscellaneous memoranda and orders contain a sufficient exposition of any ruling on a contested issue of law or fact to enable the parties, and this Board on its own review, readily to apprehend the foundation for the ruling. Compliance with this general duty is not a mere procedural nicety but is a necessity if we are to carry out efficiently our appellate review responsibilities.
ALAB-104, supra, at fn. 2.
The Board nevertheless found these accidents of sufficient interest to construct its own accident probability for this type of accident. The Board's construction of an accident probability based on "two reported serious truck accidents" merely identifies truck mishaps with no cask damage.
(Initial Decision at 61 and footnote 117 at 47).
Furthemore, the accident probability itself was inaccurately developed by the Board. The population of 3600 shipments represented shipment history as of 1972; through that year, only one truck accident had occurred, yet the Board used two accidents, one of which occurred after 1972. Most significantly, the Staff actually calculated the accident probability for the type of " minor" accident of concern to the Board for the specific shipping campaign before the Board.
If 300 shipments each of 170 miles in length were made each year by Duke, it would be 14 years between such minor accidents. (Staff Exh. 9, pp. 7-8).
The Board's findings with regard to the likelihood of a transportation accident misconstrued the record evidence. The record evidence (Staff Exhibits 9, and 3, supra) is clear and overwhelming that serious cask accidents are unlikely.
Notwithstanding the remoteness of such accidents, the Staff perfomed detail 6d accident analyses of a series of cask accidents in its EIA.
(EIA, pp. 33-39; Staff Exhibit 9). Ooses to the maximum individual and to popu-lation centers along the Oconee to McGuire transportation routes were detemined to be small. There were essentially no health effects from corresponding population dose.
In spite of the extensive record on this subject, the Board found that "there is no real assurance that a severe spent fuel transport Occident cannot occur." (emphasis supplied) (Initial Decision at 78).
In reeching this conclusion, the Board apparently gives little weight to the substantial record evidence on this subject. The Board states:
It is not enough in weighing alternatives simply to conclude that spent fuel casks "would not breach in most accidents situations," or that the " probability of the accident occur-ring is remote," or "the likelihood of a severe accident involving a cask is renote" (footnotes anitted) Initial Decision at 61.
The casks that the Applicant would use to transport the spent fuel assemblies had previously received a certificate of compliance called for in the Commis-sion's regulations (Section 71.12 of Part 71 " Packaging of Radioactive Material For Transport and Transportation of Radioactive Material Under Certain Conditions."). The Licensing Board seemed to recognize this fact (pp. 76-77). Nevertheless the Board found that there is "no real assurance that a severe spent fuel transport accident cannot occur" [because the]
"NSF-4 shipping casks to be used have not been tested for severe accident condi tions. " (Id.at78). This finding is plainly erroneous (Staff Excep-tion 16).
First of all, it makes no sense at all to require, as the Board
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apparently would, the casks to be used commercially themselves to be tested for severe accident conditions. Aside from this unreality, however, the Board is in effect challenging the Commission's regulation in Section 71.12.
Neither Part 71 nor any other Commission regulation requires the physical crash testing of casks in order for the cask to be certified. Cask adequacy may be determined analytically under the Conmission's regulations (Part 71) and, as we have already noted (supra), the Board recognized this (Initial e
s sn Decision at 78). Nonetheless--and without any explanation--the Board apppar-ently concluded that in the absence of physical crash tests of the casks themselves, it would not find such casks to be satisfactory for the trans-port of spent fuel elements, even though the casks have an NRC certificate of compliance and thus satisfy all applicable (NRC and D0T) regulatory requirements.
This Board finding is grossly erroneous and is in conflict with the regula-tions in Part 71 which provide for the approval of shipping casks under generic requirements. Moreover, in not abiding by the Commission's regula-tions and in the absence of any stated reason for not doing so (see and compare 10 C.F.R. 2.758 V'ich was not invoked) the Licensing Board--in addition to the other errors it connitted in handling this matter--clearly exceeded its authority as an administrative adjudicatory body.
i II. THE STAFF'S ENVIRONMENTAL IMPACT ASSESSMENT IN THIS PROCEEDING SATISFIED NEPA'S REQUIREMENTS.
The Licensing Board found as a factual matter that the instant license amendment application was the first step in a larger plan or program to transship excess spent fuel from older to newer reactors in Duke's system l
(Initial Decision at 21-22). Therefore, the Board concluded that the Staff erred in limiting its NEPA review and analysis only to the environmental impacts associated with the proposed shipment of 300 spent fuel assemblies from the Oconee to the McGuire nuclear power plants. The proper ' scope of the NEPA evaluation, according to the Licensing Board, must be as extensive as the scope of the larger plan (~ Cascade Plan") itself.
(Initial Decision at 22).
The touchstone of the Licensing Board's analysis is that the existence of the Cascade Plan distinguishes the factual situation in this proceeding from that found by the Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390 (1976), where the District Court had " expressly found that there was no existing or proposed [ regional] plan or program..." (Initial Decision at 22.).
By finding that a plan or program existed in the instant case, the Licensing Board concluded that as a matter of law the Staff's EIA and Negative Declaration were improperly segmented and unduly limited in scope.
(Initial Decision at 21,22,91). The Board also concluded that issuance of the license amendment and activity thereunder would significantly affect the quality of the human environment and therefore requires preparation of an environmental impact statement, (Initial Decision at 91).
The Licensing Board's NEPA analysis and conclusions are manifestly erroneous.
(Staff Exceptions 1-9, and 11-21). As discussed more fully below, private actions or proposed actions are subject to NEPA analysis only if such actions l
become, for NEPA purposes, federal actions because of the necessity of some federal involvement, such as funding, or where, as here, a federal license is needed to authorize an activity. The Licensing Board has failed to recognize that the Cascade Plan, if it exists, is a private plan not subject to NEPA analysis at this point in time. The only federal action involved. in the instant proceeding is the requested license amendment which would author-ize Duke's McGuire spent fuel pool to receive and store 300 spent fuel elements frm the Oconee Nuclear Station. The segmentation cases discussed by the Licensing Board are inapposite because in each case the larger proposal claimed to have been illegally segmented was unaeniably (from the explicit statement of facts in each case) federal, not private. Even assuming arguendo that a Cascade Plan exists which is also considered to be federal action within the ceaning of NEPA--a situation which manifestly finds no support in the evidentiary record--application of the segmentation principles show that the Staff's EIA has not been illegally fragmented.
In other words, in addition to its error regarding the scope of the licensing action involved in thi_s proceeding, the Lic.ensing Board also erred in its application of NEPA law. The Oconee to McGuire transshipment proposal has utility inde-pendent of such a plan, fort closes ac alternatives, and does not overlook significant cumulative env'ronmental effects.
Indeed, the five factor test called for in the Comission's notice of September 16, 1975, was culled from the judicial decisions on the issue of whether, under the specific factual circumstances involved, an effective NEPA process was being bypassed by segmenting activities. Moreover, there is no evidence that the environ-mental consequences of subsequent transshipment proposals cannot be ade-quately considered when and if such proposals are submitted to the NRC.
~
Assuming that there are such subsequent requests, each will _have to be i
evaluated on its on merit in light of the conditions which exist at that time. And, undeniably, the Commission's jurisdiction over the spent fuel l
involved continues so that corrective action, if needed, can be ordered with l
l l
i regard to the storage of spent fuel assemblies and their transshipment. The Licensing Board erred in finding otherwise (Initial Decision at 23-24, Staff Exception 4). There is no evidentiary basis for the Board's conclusion of law that an environmental impact statement is required on the basis of the record in this proceeding.
~
Finally, as an introduction to the analysis which follows, one should not in these circumstances lose sight of the fact that the overriding objective of NEPA is to have decisionmakers consider environmental consequences in the course of the decisionmaking process. The consideration of alternatives, in particular, is an important NEPA factor in the decisionmaking process. The spent fuel storage problem and the ultimate solution--a final repository for radioactive waste--have in recent years received detailed attention at the very highest levels of government (supra at pp.10-18). Although these matters are still largely unresolved, they are not at issue in this proceeding.
The point is, however, that these national policy issues are being debated in appropriate forums (the Executive Branch and the Congress), and short-term 1
alternatives, such as those considered in this licensing proceeding, are viewed by the policy makers, and realistically so, as simply interim actions which are needed until national policies are in place. Accordingly, the type of alternatives, which NEPA's " rule of reason" would r? quire be given a "hard look" in evaluating the requested licensing amendment, must be considered on the landscape of what is otherwise going on at the highest levels of the i
Federal Government to deal with spent fuel storage and related issues.
i A.
The Licensing Board fails to recognize that the Cascade Plan, if it exists, is a private plan not subject to NEPA Section 102(2)(C) of NEPA requires that all federal agencies in.:lude a detailed statement of environmental consequences "in every recorrendation or report on proposals for legislation and other major Federal, actions signifi-cantly affecting the quality of the human environment." (emphasis added) 4 42 U.S.C. 6 4332(2)(C). Thus, the plain language of NEPA makes clear that the Act applies only to federal agencies and federal actions or proposed federal actions. This requirement has not been ignored by the courts.
For an action to be subject to NEPA, it must be shown to be " federal." See ed.
Friends of the Earth, Inc. v. Coleman, Inc., 518 F.2d 323, 327 (9th Cir.
1975) and cases cited infra. Congress did not intend NEPA to apply to state, local or private actions--hence, the statute speaks only to " federal agencies" and requires impact statements only as to " major Federal actions."
Atlanta Coalition, Etc. v. Atlanta Reaional Com'n., 599 F.2d 1333,1344 (5th Ci r. 1979 ).
l The Commission also recognizes that the environmental analysis required by
~
NEPA is limited to federal actions.
In discussing the impact of Kleppe, supra, on the scope of the required alternative site analysis for the Seabrook famility, the Commission observed:
In Kleppe, the Court started with the proposition that NEPA obliga-tions arise only in connection with a "reconunendation or report on proposals for... major Federal actions significantly affecting the quality of the human environment." NEPA Section 102(2)(C). The Court made clear that that obligation does not arise until there is a proposal, and a proposal for major Federal action.
(emphasis in original)31/
The Licensing Board, however, does not appropriately recognize the federal action requirement of NEPA. On the contrary, as noted earlier, the Board attempts to distinguish the instant case from Kleppe based on the alleged existence of Duke's Cascade Plan. Significantly, a strikingly similar, if not identical, legal theory based on Kleppe has been squarely rejected by the Court of Appeals for the Fifth Circuit.
In Atlanta Coalition, supra, various organizations brought an action against the Atlanta Regional Com-mission, the Georgia Department of Transportation, the Metropolitan Atlanta Rapid Transit Authority and the U.S. Department of Transportation for a declaratory judgment that NEPA required preparation of an environmental impact statement on a regional development plan. The plan, prepared by the Regional Commission, was the long range transportation systems and land use planning guide for the Atlanta area. The Court held that where state and local agencies are solely responsible for the contents of regional develop-ment plans and the adoption of the plan in no way obligated the Federal 31/ Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 541 (1977). The federal action requirement of NEPA is also recognized by the Atomic Safety and Licensing Appeal Board.
...Kleppe stands for no more than that, under the plain terms of NEPA, the environmental assessment of a particular proposed Federal action coming within the statutory reach may be confined to that action together with, inter alia, its unavoidable conseauences. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2) and Vermont Yankee Nuclear Power Corporation (Vennont Yankee Nuclear Stat 1on), ALAB-455, 7 NRC 41, 48 (1978).
_ Government, the plan cannot be said to be " federal" for purposes of NEPA.
Atlanta Coalition at 1347. The unsuccessful plaintiffs, like the Licensing Board here, relied principally upon the Supreme Court's opinion in Kleppe.
Af ter careful analysis of the Kleppe decision, the Court stated:
The plaintiffs' argument based on Part III of Kleppe is s traightforward: wnat was lacking in Kleppe, and all that was lacking, was a regional plan. The Supreme Court clearly indicated that had such a plan existed, an impact statement would have been required. Here, of course, there is a regional plan; it follows, according to the plaintiffs, that here there must be an EIS.
But while the argument has some plausi-bility, we think that it does not recognize a critical distinc-tion between this case and Kleppe.
In Kleppe, the plan (had there been one) would have been a federal plan, whereas here the plan was prepared by state and local authorities without substantive federal supervision or control, will never be reviewed or approved by a federal agency, and does not commit a federal agency to any action, now or in the future.32/
The Licensing Board also failed to recognize the critical distinction for NEPA purposes between private (or state and local) action and federal action.
This is evident from the very beginning of the Licensing Board's discussion of the Cascade Plan. According to the Board, Contention 1 of NRDC " asserts that the proposed action of Duke is a first step in a proposed program or plan..."
(emphasis added). (Initial Decision at 10) This is not correct.
The language of the contention does not even contain the word " Duke" and, 32/ Atlanta Coalition, supra, at 1343. The Court also noted that the regional development plan does not become a federal plan even though federal officials had knowledge of the overall planning process of state officials.
Furthermore, NEPA is not triggered by the fact that proposed projects within the plan will be federal projects when and if implemented.
Id. at 1346, n.17.
.- read in context, clearly refers to the proposed federal action, i.e. NRC consideration of Duke's specific transshipment request.b There are other examples as well. On page 22 of the Initial Decision the Board, quoting Kleppe, notes that the District Court in that case had found no existing or proposed pla or program. However, seven crucial words from the Supreme Col.rt's opinion which imediately follow the quoted language are omitted by the Licensing Board. The omitted words, "on the part of the Federal Government," emphasize that for NEPA to apply, existing or proposed plans must be federal. A similar omission is apparent on page 20 of the Initial Decision. There the Licensing Board quotes a passage from ALAB-455, supra., which quotes Kleppe.
Included in the passage is the District Court finding just discussed. Though the Licensing Board underscores for emphasis the first part of the sentence, the Board, inexplicably, drops the under-scoring just before reaching the same seven crucial words. Hence, it is clear that the Licensing Board ignored the distinction between private action and federal action throughout its opinion.N By failing to recognize that NEPA does not apply to private actions, the Initial Decision does not discuss at all how or why Duke's plan has 33/ The language of the NRC Contention 1 is set out on page 7 of the Initial Decision.
B The Initial Decision is littered with numerous other references by the Licensing Board to the fact that the Cascade Plan is a Duke program or proposal. See pages 10-15, 22, 23, 32, 34, 35, 37_ and 44.
ripened into a proposal for federal action within the meaning of NEPA.
It plainly is neither a federal plan nor a matter which requires federal action in this proceeding.
Moreover, assuming arguendo that an overall Cascade Plan exists, there is no record evidence indicating that the Plan is federal for NEPA purposes. On the contrary, the Licensing Board itself consistently refers to the Cascade Plan as Duke's program or proposal.E Further, as in Atlanta Coalition, supra, the overall plan was obviously prepared exclusively by a non-federal enti ty without substantive federal supervision or control and may be changed at any time by Duke, and by Duke alone.
In addition, the existence -
of the Plan does not comit NRC to any action, now or in the future, and such an overall plan does not require NRC's appr: val. Only when a concrete proposal, such as the transshipment proposal in the instant case, is put before the agency for review or approval will NRC become involved; as noted earlier, NEPA is not triggered now even if segments of the Cascade Plan become federal when and if submitted to NRC for approval. As such, the Cascade Plan, if it exists, must be viewed as what it is -- a planning tool designed for and by Duke's management. Whatever else the Plan may be, it is not a federal plan.
l 35/
Ibid.
l l
L B.
The proposed federal action in the instant case is limited to a license amendment authorizing transshipment of 300 spent fuel assemblies from J
Oconee to McGuire.
In order to decide what kind of an environmental impact statement need be prepared, it is first necessary to accurately describe the federal action being taken. Aberdeen and Rockfish R. Company v. SCRAP, 422 U.S. 289, 322 (1975). As the Commission has recognized, in federal approval cases, NEPA seeks only to assure environmental consideration during the agency formula-tion of a position on the proposal submitted by private parties. Seabrook, supra, at 541, quoting Kleppe at 596-97 n.1 (Marshall J. concurring and dissenting).
Although a comprehensive impact statement may be required in certain situations where several actions proposed by private parties are pending before an agency at the same time, Kleppe, at 409, an EIS is not required unless an agency's planning ripens into a recanmendation or report on a proposal for major Federal action significantly affecting the quality of the human environment. Andrus v. Sierra Club, 442 U.S. 347, 350 n.2 (1979).
In the instant case it is clear that the proposed federal action being taken is limited to NRC's consideration of Duke's license amendment request to l
l transship 300 spent fuel assemblies from Oconee to McGuire. Although the Licensing Board held (Initial Decision at pp.12-24) that the overall Cascade Plan itself is before the agency, the fact of the matter is that a Cascade Plan has not been submitted to NRC for approval.
Should Duke subsequently seek to transship additional spent fuel between different facilities, separate 5
v y
w
-m authorizations from NRC would be required, unless such authorizations have already been granted in the context of previous license proceedings. E Hence, any subsequent proposals will not escape appropriate environmental and safety reviews by the NRC Staff. Therefore, the Licensing Board's suggestion that approval of this request is tantamount to approval of the entire Cascade Plan (Initial Decision at 23-24) is incorrect.
(Staff Exception 4).
4 Furthennore, the practical effect of the Licensing Board's position would impose impossible burdens on the Commission's licensing and regulatory programs.
In essence, the Licensing Board decision enlarges the reach of NEPA to require agency consideration of purely private plans or programs.
J As a result, many long-range internal plans of NRC licensees would suddenly be ripe for review by the NRC Staff. The NRC as a regulatory agency evalu-ates applications which are submitted to it, and except with respect to alternatives which are found to be obviously superior to the license applied for, the NRC does not get involved in private utility decisionmaking and I
planning.E Among other things, this policy appropriately recognizes that broad inquiries into future plans of license applicants are usually irrele-i vant to the fundamental agency mission of ensuring that the specific proposal
,3_6/ Duke has requested authorization to store spent fuel from other Duke facilities at Catawba in its FSAR for that facility. This request will be considered in the context of the Staff's safety and environmental reviews of that facility.
(Tr. 587-88, 591).
37/ See and compare Consumers Power Company (Midland Plant, Units 1 and 2),
ALAB-458, 7 NRC 155,162-163, (1978) and Public Service Company of New Hampshire (Seabrook, Units 1 and 2), 5 NRC 503, supra at 528-30.
l
before it will adequately protect the public health and safety and preserve Moreover, since private corporate planning dect-environmental amenities.
sions are subject to constant change for a host of reasons, the line of inquiry suggested by the Licensing Board, in addition to unnecessarily diverting scarce agency resources, is unlikely to produce meaningful infor-mation useful in evaluating concrete proposals pending before the agency.
As at least one court has recognized, "[I]t would be impractical to require the expenditure of considerable amounts of time and money by the federal government on indefinite or tentative proposals before it can be said that Indian Lookout Alliance v. Volpe, they have become a major federal action."
484 F.2d 11, 17 (8th Cir. 1973). Since the specific transshipment proposal submitted to NRC by Duke involves transfers from Oconee to McGuire, the Staff's environmental analysis may be properly limited to the proposal itself and its unavoidable consequences.
The Staff's EIA is not illegally segmented or restricted in scope by C.
failing to consider a Cascade Plan.
Once it has been detennined that NEPA applies to a proposed federal action, the scope of the environmental review and analysis must obviously be broad enough to ensure that the environmental consequences of the proposed action Generally are appropriately considered in the agency decisionmaking process.
speaking, when the proposed federal action is defined too narrowly for purposes of environmental analysis, NEPA is violated because the proposed action has been impermissibly segmented. Hence, segmentation of a large or
-~
i.
cumulative federal project into smaller components in order to avoid desig-nating the project a major Federal action is unlawful. Sierra Club v.
Callaway, 499 F.2d 982, 986-87 (5th Cir.1974); Susquehanna Valley Alliance
- v. Three Mile Island, 619 F.2d 231, 240 (3rd. Cir.1980).
The Licensing Board concluded that the Staff's EIA of Duke's proposal in the instant case was illegally segmented because it failed to consider the werall Cascade Plan.
(Initial Decision at 24, 91).
II
- a concluding, the Licensing Board has misapplied the legal principles enunciated in the segmen-tation cases, discussed below, in two respects.
First, the Licensing Board fails to recognize the fundamental notion implicit in the cases that the larger proposal, e.g., the proposal alleged to have been illegally frag-I mented, must itself be a proposal for " federal action" or " major federal action" within the meaning of NEPA.
If the larger proposal is not federal, the segmentation inquiry reduces to the absurd, because, as discussed earlier, NEPA would not apply to the proposal at all; there would be no proposed federal action which could be illegally segmented in the first place.
Second, even if an merall Cascade Plan exists and is deemed to be the relevant federal action within the meaning of NEPA, application of the segmentation principles to the facts of this case demonstrate that the Staff's EIA is not filegally segmented.
l l
It has been judicially recognized that it is impossible to enunciate a general rule that will cover all cases of alleged segmentation; the crucial
_- - _ - = - _ -
-. ~ __
J 9
- i l
a j
inquiry is upon the facts before the court in the particular case sub judice.
j Sierra Club v. Froehlke, 534 F.2d 1289,1297 (8th Cir.1976). Many of the segmentation cases have arisen in the context of highway construction and j
flood control projects. Although no general rule is discernable, courts t
have tended to focus on certain factors. Two factors of ten examined by the courts in deciding whether a proposed federal action has been illegally t
fragmented are: whether the segment in question has utility independent of the larger proposal or of other segments; and whether approval. of the segment i
in question will constitute a cammitment of resources that will foreclose al ternatives.E The courts have recognized, however, that segmentation of overall state highway plans are pennissible where such plans must of necessity l
be projected over a relatively long span of time and be flexible in order to
[
l' allow modifications to meet unforseen and untoward developments.
Indian i
Lookout Alliance v. Volpe, supra at 11,19.E Furthermore, it is not illegal to segment the consideration of environmental impacts associated 1
with an increase in spent fuel storage capacity at a nuclear power reactor
)
when the petitioner does not point to any consequence of further expansion i
3_8/ See Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.1974); Friends 8
of Earth v. Coleman, 513 F.2d 295 (9th Cir.1975); Conservation Society of Southern vennont v. Secretary of Transmrtation, 531 F.2d 637 (2nd Cir.1976); Sierra Club v. Callaway, 499 :.2d 982 (5th Cir.1974);.
Indian Lookout Alliance v. Vol
, 484 F.2d 11 (8th Cir.1973); Sierra Club v. Stamm, 507 F.2d 788 th Cir._1974); Swain v. Brinegar 542 1
TTd 364W Cir.1976).
39/ Similarly, an EIS need not consider the long-tenn visions of highway 9
designers and urban engineers when they suggest comprehensive plans which may take years to construct, if they are built at all. Swain v.
{.
Brinegar, 542 F.2d 364, 369 (7th Cir.1976).
l l
4 i
f
- 't that could not be adequately considered at the time of any requests for d
further expansion.
State of Minnesota v. NRC, 602 F.2d 412, 416 n.5. (D.C.
Cir.1979 }$S/
Each judicial precedent cited by the Licensing Board in support of its conclusion that the Staff's EIA is illegally segmented is inapposite here.
In each case the court explicitly found that the overall proposal alleged to have been illegally segmented was itself a proposal for federal (or major federal) action. (Here, however, the Cascade Plan, if it exists, is a private, not federal, plan.) For example, the Licensing Board cites Swain
- v. Brinegar, supra, to support its theory that the scope of the NEPA evalua-tion must be as extensive as the scope of the Cascade Plan itself.
(Initial Decision at 18, 22 and 31). However, in that case the Court explicitly found that the proposed federal action included the entire 42 mile road project rather than the 15 mile segment considered in the EIS.
Brinegar at 367, 368. Similarly, the Licensing Board's reliance on Susquehanna Valley Alliance, supra, is also misplaced.
In that case the plaintiff charged that NRC had fragmented its consideration of the problem of disposing of the contaminated water at Three Mile Island by authorizing the use of Epicor II without preparing a draft or final impact statement. There the 40/ The Court made specific mention of the fact that the NRC Staff expressly considered the five factors articulated by the Commission for considera-tion in individual license amendment proceedings pending completion of the generic EIS on interim storage of spent fuel, noting that the Staff found that alternatives would not be foreclosed and that cumulative environmental impacts were not overlooked.
._ Court specifically found that the agency had been presented with a proposal for federal action by a private party.
Susquehanna Valley Alliance v.
Three Mile Island, supra at 241.
Cady v. Morton, 527 F.2d 786 (9th Cir.1975), and Henry v. FPC, 513 F.2d 395, 407 (D.C. Cir.1975), are also relied upon by the Licensing Board. Cady is cited by the Board for the proposition that an environmental impact statement covering an entire coal lease area may be required where the scope of possible projects could involve environmental consequences, even though each mining plan for tracts within the federally leased area was to a significant degree an independent project. (Initial Decision at 20-21). However, the Board fails to point out that the federal leasing of the coal lease area in that case, nearly 31,000 acres, was specifically held by the court to constitute
" major federal action" within the meaning of NEPA. Cady at 793.
Similarly, in Henry the fomer Federal Power Commission was required to take into account the environmental costs of a coal gasification project as a whole, even though the Commission only had jurisdictio1 over a smaller piece of the project. Here too, however, the court found that the overall project consti-tutes " major federal action" and requires the approval of several federal agencies in addition to the FPC, Henry at 406.$
4_1/ The remaining cases cited by the Licensing Board in its discussion of the segmentation principles are Indian lookout Alliance v. Volpe, supra; Named Members of San Antonio Consenation Society v. Texas Highway Dept.,
cert. denied, 406 U.S. 933 (1972); Thompson 446 F.2d 1013 (5th Cir.1971) lT Ta.1972); Scientists' Institute for
- v. Fuga te, 347 F.Supp.120 (E.
Public Informaticn, Inc. v. Atomic Energy Commission, 481 F.2d 1079 (D.C.
Cir.1973); Conservation Society of Southern Vermont v. Secretary of Transportation, supra; City of Rochester v. United States Postal Service, (Continued)
. _. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ _____-______ ___________________________________ Therefore, the discussion of the segmentation principle is not particularly relevant to the instant case because the Cascade Plan has been shown to b r a private, rather than a federal plan and has not been submitted to the agency.42/
However, even if the Appeal Board concludes that the Cascade Plan exists, is before the agency for an approval, and is deemed to be a " federal action" for NEPA purposes, application of the segmentation principle to the facts of this case demonstrate that the Staff's EIA was not illegally fri.gmented.
41/ (Continued) 541 F.2d 967 (2nd Cir.1976); Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir.1976); Trout Unlimited v. Morton, supra; and Friends of Earth v. Coleman, 513 F.2d 295, supra _. Suffice it to say that in each of these cases the court expressly noted that the larger proposal, e.g., the one alleged to have
~
been illegally segmented, was federal action.
See, respectively, 484 F.2d at 17; 446 F.2d at 1024, 27-28 ; 347 F.Supp. at 123,124; 481 F.2d at 1088; 531 F.2d at 640; 541 F.2d at 972-74; 534 F.2d at 1297; 509 F.2d at 1284, 1285; and 513 F.2d at 300. The Conservation Society of Southern Vermont case warrants specific mention.
In that case the Second Circuit in a prior opinion had expressly affinned the District Court's holding that an EIS was required on an entire 280-mile road segment even though the lower Court found there was no overall federal plan for improving this segment. After the Supreme Court vacated and remanded the decision, 423 U.S. 809 (1975), the seco~d Circuit reversed its prior decision and the judgment of the District Court. The Court noted that in light of SCRAP, supra, the federal action in the instant case was limited to a 20-mile stretch of road and hence a corridor EIS on the 280 mile segment was not required.
42/ The segmentation principles discussed in this section are also reflected in Factors 1, 2 and 3 of the five-fcctor balancing test utilized by the Comission in concluding that there should be no general deferral of licensing actions pending preparation of the generic impact statement on spent fuel handling and storage. See Notice of Intent to prepare Generic Environmental Impact Statemenn, (40 Fed. Reg. 42801 at 42802, 1975). Although the staff disagrees with the Licensing Board's conclu-sion that the five factors need to be specifically addressed in the Staff's EIA (see Part III, infra.), factors 1, 2 and 3 (independent utility, foreclosure of alternatives, and cumulative impacts) are relevant to the segmentation discussion here.
l
[
- Duke's specific proposal to transship spent fuel from Oconee to McGuire has utility separate and apart from the existence of the Cascade Plan or any other method of storing spent fuel.
(See also the discussion under Part j
III, infra). Transshipment of spent fuel fron Oconee to McGuire would extend for some period of time the capability of the Oconee facility to produce electricity before being forced to shut down, or required to take less preferred, more costly alternatives, if there is a lack of spent fuel storage capacity.
Significantly, the Cummission has expressed serious concern that the shutdown of reactors due to filled spent fuel pools could jeopardize reliable electric service, impose economic penalties on consumers and increase environmental impacts.43/ Since this proposal "huys time" for the Oconee facility, the proposal has independent utility. Furthemore, additional time is also gained for goverment decision makers, particularly 00E, to make available interim AFR storage facilities. This concern'is especially pertinent because as Dr. Worth Bateman, Deputy Undersecretary of the Department of Energy testified. DOE's AFR interim spent fuel storage program assumes that utilities will utilize intrasystem transshipment to take advantage of unused storage space.b 43] Notice of Intent to Prepare Generic Impact Statement, supra, 40 Fed.
M. 42801 at 42802 (1975).
4_4f Tr. 4550-51; 4560-64. The probability that intrautility transshipment would be required is also recognized in the Connission's Final Generic Impact Statement on Handling and Storage of Spent Light Water power Reactor Fuel, flVREG-0575, August 1979, p. 8-2, ES-6, ES-9, 3-21.
See also i 72.70 of the Commission's regulations on " Licensing Requirements For the Storage of Spent Fuel In an Independent Spent Fuel Storage Ins talla tion," 45 Fed. Reg. 74693, 74698, flovember 12, 1980.
- _ In addition, NRC approval of Duke's request will not prejudice in any way NRC review of subsequent transshipment proposals or of any alternate proposal to extend spent fuel storage capacity; each specific proposal will be con-sidered on its own merits with due regard for the public health and safety and environmental amenities. Approval of the specific proposal in the instant case would not, as the Licensing Board suggests, perforce, foreclose considera-tion of alternatives to transshipment.
First, Duke and any other licensee will remain free to pursue other potentially licensable alternatives, including further compaction of spent fuel racks or construction of on-site or off-site independent spent fuel storage installations.
Second, as the Licensing Board found, it is not likely that the commitment of material resources would signiff-cantly foreclose available alternatives.SE/ The specific transshipment proposal does not involve the canmitment of significant resources.
(EIA at 63). Third, the potential NEPA problem of foreclosing alternatives, recognized by the courts in the segmentation cases, is not relevant in the instant case.
In those cases the courts have correctly noted that approval of a short road segnient, for example, automatically prescribes either the start or the end of the next seg-ment. Here, however, NRC approval of the transshipment proposal will have no such effect because all other options remain viable.
Finally, the Licensing Board, like the unsuccessful petitioner in State of Minnesota, supra., has pointed to no cumulative environmental effects that 45/ Initial Decision at 37. The Board appeared to be considering the resource commitment if the entire Cascade Plan were pursued.
It should have considered only the specific Oconee to McGuire transshipment pro-posal.
In any event, resource commitments for the latter proposal are obviously less than for the entire Cascade Plan.
the Staff overlooked by not considering the Cascade Plan (again, if one exists) or no consequences that could not be appropriately considered within the context of subsequent licensing actions.$ Any cumulative environmental effects not addressed in the Staff EIA have been sufficiently enveloped in a number of generic studies prepared for the Commission on transportation or handling and storage of spent fuel. l For example, the detailed analysis in WASH-1238 of the environmental impact of transporting irradiated fuel from a typical light water reactor concluded that the environmental impacts and radiation risks of such shipments under both nomal and accident condi-tions is small. $ This study assumed 60 spent fuel shipments by truck per year per reactor, far more total shipments in a single year than the 300 shipments proposed in the instant case.E Similarly, the GEIS on Handling and Storage of Spent Light Water Power Reactor Fuel addresses the cumulative environmental impacts of spent fuel storage and management and also concludes
-46/ The Licensing Board merely speculates that there might be cumulative effects.
(Initial Decision at 40). Speculation without more is clearly insufficient to overcome the Commission's generic finding, subject to challenge in individual cases, that any environmental impact associated with individual licensing actions of this type would be such that they could be adequately addressed in the individual application without overlookin (40 Fed. Reg. 42801 at 42802 (g any cumulative environmental impacts 1975)).
4_7f Although not introduced into evidence, as such, these studies were referenced in the Staff's testimony and in the Initial Decision (at
- p. 70).
In any event, they can be officially noticed by the reviewing tribunal. 10 CFR @ 2.743(1). We are not aware of any disputed issues of significant facts regarding these studies in this proceeding.
See M. Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
LBP-74-22, 7 AEC 659, n. 8 at 667 (1974).
4_8/ Environmental Survey of Transportation of Radioactive Materials to and from fluclear Power Plants, WASH-1238 (December 1972), p. 32-48.
gf Id_. at 39-40.
that the impacts are negligible.5_0/ Finally, the Commission has considered on a generic basis the impacts of the domestic transportation of all radio-active materials, including spent fuel.E1/ The statement examines the impacts of ordinary transportation, the radiological and nonradiological risks and impacts from accidents, and the risks and likely effects of sabotage.
With respect to the risks attributable to nomal transportation and accidents, the GEIS concludes that such risks are small. The Commission's regulations (10 C.F.R. 9 51.20(g)(1) and Table S-4 to 10 C.F.R. Part 51) are in accord with that conclusion.
D.
Neither Commission regulations nor applicable case law require preparation of an environmental impact statement on Duke's trans-shipment proposal.
The relevant Commission regulations which prescribe the type of environmental analysis required of various Commission actions are set forth in 10 C.F.R. Part 51.
In particular, 5 51.5 describes those actions which require an environmental impact statement, those which may or may not require an environmental impact statement, and those which require neither an environ-mental impact statement nor an environmental impact appraisal and negative 50/ Final Generic Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel, flVREG-0575, August 1979, pp. ES-7, 8-2.
51/ Final Statement on the Transportation of Radioactive Materials by Air 1
and Other Modes (fluREG-0170, December,1977).
f l
54 -
declaration.j2/ Significantly, neither the Commission's regulations in
]
10 C.F.R. Part 51 nor NRC case law require an environmental impact statement for licensing actions involving the storage and transshipment of spent fuel assemblies.
t The result would not be different even if it is held that an overall " Cascade Plan" is the appropriate federal action for NEPA analysis. Any such plan, like the overall state highway plans considered by the courts in Volpe and Brinegar, supra., would be subject to extensive change as a result of subse-quent developments, including unilateral-decisions of Duke's management. As a result, the plan would be too speculative to make a meaningful NEPA analysis possible at this time.
For purposes of this proceeding, it is clear that the most that can now be said for the Cascade Plan, if one exists, is that it is a " contemplated proposal" or a proposal in the process of development.
An EIS is not required for a contemplated proposal, even if the proposal, once developed, would be a federal proposal. See Kleppe, supra, at 406, Mobil Oil Corporation v. F.T.C., 562 F.2d 170,173 (2nd Cir.1977); Atlanta Coalition, supra, at 1349; and Sierra Club v. Hathaway, 579 F.2d 1162,1168 52/ Sections 51.20, 51.21 and 51.22 of the Commission's proposed revision to Part 51 contain similar though expanded listings. See 45 Fed. Reg. 13739 at 13751-53 (March 3,1980). An EIS is not explicitly required for Duke's specific transshipment proposal under the proposed regulation.
i
-,,y.-,,2 w
,.r.
c., - -,,.
.m
,m-
. (9th Cir.1978). Therefore, the Licensing Board erred in concluding that an EIS should have been prepared.E E.
Neither NEPA nor the evidentiary record requires the selection of an alternative other than the transshipment proposal.
The Licensing Board erred in its finding that the EIA does not objectively appraise and evaluate the alternatives available to Duke to avoid extensive highway transshipments of radioactive spent fuel (Initial Decision at 52-58, Staff Exception 6). The Licensing Board found (at 62):
"On balance, the evidence shows that the alternatives of reracking or construction of an ISFSI are preferable to Duke's transshipment proposals, whether involving the Cascade Plan or the one-a-day transportation of 300 casks of spent fuel in one year.
This finding is not supported by the evidentiary record. (Staff Exceptions 6,7,8,9).E S3/ To quote the Licensing Board, "the issuance of the license amendment and activity thereunder would significantly affect the quality of the human environment, and therefore require preparation of an environmental impact statement..." (Initial Decision at 91.) Noticeable by its absence is an express finding by the Licensing Board that the license amendment is a " major federal action." This is yet another example of the Board's consistent failure to distinguish private action from federal action.
54/ Although probably not as crucial to the Licensing Board's erroneous finding as some of the other essential ingredients discussed in the text, the Licensing Board also committed at least two subsidiary errors in its analysis of alternatives.
It seemed to imply that the costs of alternatives should be compared to "the many hundreds of millions of dollars that Oconee or other Duke nuclear facilities have cost or will cost." (Initial Decision at 58). NEPA does not (Continued)
, The Board seems to have reached its ultimate detennination that both reracking and construction of an ISFSI are " preferable" alternatives by singling out the proposed transshipment for application of the erroneous "no-risk" standard.
(Part I, suora). Proceeding from this erroneous premise, the Board concludes, in effect, that alternatives which " eliminate highway spent fuel transportation ris ks" are " preferable."
(Initial Decisions at 62). This finding is not supported by the evidentiary record and must be reversed.
The " highway spent fuel transportation risks" of which the Board spoke pre-sumably are based on its concern with the risks from highway accidents and sabotage. We have shown (Part I, supra) that the risks from highway accidents are minimal. The same can be said for the risks from sabotage of the vehicle which transports spent fuel assemblies (Part IV, infra).
We agree, of course that it is appropriate to consider residual risks in the comparison of alternatives for NEPA purposes. Citizens for Safe Power, Inc.
54/ (Continued) require the use of total facility costs as a benchmark against which to compare the costs of alternatives. See and compa-2 Trojan, supra, 9 NRC at n. 6, 266. The Licensing Board's premise in this regard is erroneous.
(Staff Exception 9).
The Licensing Board's finding (Initial Decision at 57) that the " Staff's concerns about'reracking costs and occupational exposure appear to have been eliminated by Duke's completed installation of stainless steel high density racks and its firm decision and contract for the installation of poison racks" is also erroneous.
(Staff Exception 8). The approval of a course of action does not in and of itself remove concerns which may have been previously expressed in comparing that action with other al terna tives.
- v. N.R.C., 524 F.2d 1291,1299 (C. A.D.C.,19 75). However, in holding that residual risks may be considered for NEPA purposes this court said (at 1299):
Apart from the requirements of NEPA or similar ones already implicit under [the] AEA, it would be pointless, and a waste of agency resources, to require the AEC to reapply efforts that have already gone into its basic health and safety regulations, in [an] individual licensing proceeding, in the absence of some evidence that a particular facility presents risks outside the parameters of the original rulemaking.
There is no sound basis in this record to support a conclusion that the risks from transporting the spent fuel assemblies are "outside the parameters" of the Commission's applicable regulations in 10 C.F.R. Parts 51, 71, 72 and
- 73. The record clearly shows that such risks are minimal.
There is no sound basis in this record for finding that the proposed trans-shipment of 300 Oconee spent fuel assemblies to McGuire would either have a significant environmental impact or give rise to a controversy over the allocation of resources. Under these circumstances there was no legal requirement that alternatives be considered.E Moreover, the record does not support a finding that the other alternatives of reracking or of construction of an ISFSI are in fact environmentally 5_5/ Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451, 457-58 (1980). Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-531,-9 NRC 263, 266-67 (1979); and Consumers Power Comoany (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155, n. 24 at 162-63 (1978).
. superior to the transshipment proposal.
Since the transshipment proposal will have minimal environmental impacts, it is " scarcely likely that any alernatives to it would be materially advantageous" or that at least one of the alternatives would be both " environmentally superior" and such " environ-mental superiority...[would not be] outweighed by other considerations such as comparative costs."E5/
The reracking " alternative" which the Board found to be preferable is already in place.
In finding construction of an ISFSI to be a preferable alterna-tive, the Board did not apply, however, the same "no-risk" standard to the transportation associated with such a facility as it applied in its evalua-tion of the transshipment proposal. Transportation apparently was not even considered by the Board in its evaluation of the ISFSI alternative, although it should have been.
(See 56 72.70 and 72.20, 45 Fed. Reg. 74693 at 74698, 74703 and 74704 (November 12, 1979)). Therefore, the Board's evaluat1 n of the ISFSI can scarcely be deemed adequate to warrant a conclusion that, even aside from the cost comparisons, the ISFSI is " environmentally superior" to the transshipment proposal.
Accordingly, the Board's conclusion regarding preferable alternatives is erroneous and must be reversed.
56/ Virginia Electric and Power Company, supra,11 NRC at 458. Compare Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 526-30 (1977), aff'd sub nom., New Enoland Coalition on Nuclear Power v. NRC, 582 F.2d 87, 95-6 (1st Cir.1978).
III. THE STAFF SATISFIED EACH OF THE FIVE-FACTORS IN THE COMMISSION'S SEPTEMBER 16, 1975 NOTICE BY ISSUING THE FGEIS OR BY THE EVIDENCE IN THIS PROCEEDING The Licensing Board rejected the Staff's proposed finding that the issuance of the FGEIS in August,1979 renders unnecessary any further consideration in this proceeding of the five-factor balancing test.
(Initial Decision at 28). This rejection is contrary to the Commission's notice of intent dated September 16, 1975 (40 Fed. Reg. 42801-02) and is erroneous (Staff Exception 10).
In any event, even if the five factors are to be considered, the Licensing Board erred in its finding (Initial Decision at 36) that the proposed licensing amendment did not have independent utility (Staff Excep-tion 11).
In addition, it was error for the Board to find (Initial Decision at 37, 40) that the licensing of transshipments would tend to significantly foreclose other available alternatives. (Staff Exception 12).
Factor 3 dealing with cumulative environmental impacts is also a factor on which the Board found contrary to the Staff's position (Initial Decision at 40-41).
Our arguments alleging Board error in that regard under NEPA is set forth under Point II, supra and from the procedural standpoint (Staff Exception
- 13) is set forth infra under Point IV.
i A.
The Issuance of the FGEIS Eliminated the Need For Further Consideration In This Proceeding of The Five-Factor Tests.
The Licensing Board's rejection of the Staff's finding (Initial Decision at
- 28) appears to be based on the fact that the staff submitted the FGEIS to the Commission for its consideration and that the Commission has not yet acted on the subject.
(Id. at 27).
~
It is an undisputed fact that NUREG-0575 is the " final" generic environ-mental impact statement called for by the Commission in its September 16, 1975 notice of intent to have a generic statement prepared on the subject of the handling and storage of spent light water power reactor fuel. A notice of " Availability of Final Generic Environmental Impact Statement on Handling and Storage of Spent Light Water Power Reactor Fuel" was published in the Federal Register on August 22, 1979 (44 Fed. Reg. 49317).
Prior to this notice, advance copies of the FGEIS were sent to the Commission for con-sideration (FGEIS, Foreward, at 11). This is not suprising in view of the fact that the Commission directed that the FGEIS be prepared to analyze alternatives for the handling and storage of spent fuel from light water power reactors. There is no requirement that the GEIS must be considered by the Commission before it could be issued as a FGEIS.
(See and canpare the Initial Decision at 27-28). Subsequent to the issuance of the FGEIS, the Commission has cited it in its recently published ISFSI regulations in 10 C.F.R. Part 72 (45 Fed. Reg. 74698, n. 5, November 12,1980).
n, c
-m-The five-factors included in the Commission's notice of intent (September 16, 1975) were simply a distillation of applicable NEPA law on the question of whether or not a particular action was deemed to be an illegal segmentation in the absence of a generic (or broader) EIS.
Issuance of the FGEIS, simply put, removed the concern of a judicial challenge to the legality of the licensing of spent fuel projects pending the completion of the generic statement. Thus, the underlying reasons for the five-factors (the absence of a generic statement, coupled with the need to continue licensing spent fuel projects until it was completed, in the face of possible court challenges of the Comission's authority to do so) were satisfied with the issuance of the FGEIS. The Board simply did not analyze the issue and took the easy, but incorrect, path - by relying on the proposition that the submission of the FGEIS to the Commission was the detennining factor.
B.
The Staff has Satisfied the Five-Factor Test in This Proceeding j
1.
In finding that the licensing action did not have independent utility
(~
(Factor 1), the Licensing Board imposed an overly-restrictive and erroneous test which ignored all of the relevent evidentiary record. The Board seemed to be under the impression that to have independent utility, within the meaning of the Commission's notice of intent (September 16,19 75), the licensing amendment must meet either one of two tests. The first is that i
I L
the amendment must result in the " enlargement of the onsite storage capacity of reactor spent fuel pools, as contemplated by the Commission, and often approved in NRC proceedings" (Initial Decision at 35). An alternative test which would satisfy Factor 1 in the eyes of the Licensing Board is a licensing action which would " operate to reduce or eliminate radioactive waste."
(Initial Decision at 36).
No transshipments of spent fuel elements from one reactor storage pool to another could satisfy either one of these tests.
The Licensing Board, without any justification, eliminated the transshipment alternative from its place on the list identified in both the Commission's September 16, 1975 notice of intent and in the list of acceptable short-term alternatives in the FGEIS. Moreover, the Board's holding is clearly in conflict with national policy objectives for handling spent fuel. The testimony of Dr. Bateman (supra) plainly was that utilities are encouraged to make use of short-term alternatives in order to minimize the future need for AFR storage facilities.
The Board's restrictive tests aside, the evidentiary record is uncontro-verted on the certain matters which clearly demonstrate the essence of the amendment's independent utility from the NEPA standpoint. The proposed action is not dependent on the future use of any other spent fuel storage option. (Spitalny, p. 4, following Tr. 4807 (Staff Exh. 36, Tr. 4855); Tr.
3177-82).
It will provide approximately 2 to 2h years of additional storage space for all of the Oconee reactors.
(Spitalny, Staff Exh. 36, Enclosure 2, following Tr. 4807 (Staff Exh. 36, Tr. 4855); Staff Exh.16A, p. 3 L.
(Spitalny and Roberts) following Tr. 3844; and Tr. 4807). Moreover, the offsite transshipment of Oconee spent fuel is a necessary prerequisite to the implementation of other options that may be needed for future spent fuel storage, such as the installation of poison racks at the Oconee Unit 3 storage pool.
(Spitalny, (Staff Exh. 36) p. 5, following Tr. 4807; Tr.
3482).
In addition, the transshipment would lessen the need for the double handling of spent fuel at Oconee and provide flexibility to Duke's spent fuel management program.
(Bostian, p. 3, following Tr. 4799).
All of this can be done, as far as the evidentiary record is concerned, without prejudice to other alternatives, without setting in motion cumula-tive environmental impacts, and without any basis in the record for showing that there is an environmentally superior short-term alternative to the proposed license amendment.
2.
The Licensing Board found that "it is likely that the Duke plan would foreclose alternatives by the commitment of nonmaterial resources.
If transshipaents were licensed, it is probable that Duke would simply pursue its Cascade Plan, and would not adopt other alternatives available to it."
(Initial Decision at 37). Continuing on the same point, the Licensing Board concluded (at p. 40):
It is thus reasonable to infer that Duke's various reracking decisions have been made reluctantly, as late as possible, and probably under the impact of the perceived " delays" and
" uncertainties of the licensing process" in connection with the instant spent fuel transportation proceeding.
It is therefore likely that licensing the Duke transshipment plan would tend to significantly foreclose other alternatives, and that the Cascade Plan would be pursued by it as a " quick fix" preferred to other available alternatives.
(footnote omitted).
These Board findings are erroneous (Staff Exception 12).
In addition to the
~
Board's incorrect analysis of the independent utility factor (supra), its reliance on Duke's reluctance to increase storage capacity by reracking (Initial Decision 37) is not convincing.
In view of the lack of progress toward implementing a national policy to alleviate the spent fuel storage problem, all of the Duke's short-tenn options will probably be needed.
Therefore the fact that Duke sought the transshipment amendment before it pursued the reracking option would not appear to be a matter which should be labored.
In the final analysis, utilities are responsible for the management of spent fuel elements. As long as they have proper licensing authority granted in accord with applicable laws, the sequence in which they proceed to provide short-tena extensions to their spent fuel storage problem should not be of great moment to the Commission or its Licensing Board where, as here, there is no Cocynission or other policy which calls for a particular priority or sequence in implementing short-tenn spent fuel storage options.
The Licensing Board has not cited any precedent which suggests anything to the contrary and its own discussion does not withstand analysis.E 5J7] The Board at footnote 97, p. 40, cites the Commission's THI-2 EPICOR-II Order of-October 16, 1979.. The staff, of course, agrees with the point made in fn 5 of that order - that segmentation of an action should not foreclose subsequent alternatives. See Point II, supra.
And neither do we quarrel with the cited Trojan Appeal Board (Portland General Electric Company,' et al., 9 NRC 263, supra at 268) expression (Continued)
IV. The Licensing Board Committed Other Significant Errors A.
The Licensing Board's assessment of the adequacy of the EIA was appar-ently based at least in part on its consideration of " community fears and psychological stress under NEPA." (Initial Decision at 47-51).E
~
In doing so, the Licensing Board erred.
(Staff Exception 4).
52/ (Continued) of hope "that the Commission will take all measures necessary to encourage those with the ultimate responsibility in this area to intensify their efforts to provide long-tenn centralized storage facilities which, once in place, would end the necessity for spent fuel pool capacity expansions."
Admittedly, if policy which encourages movement away from the necessity of the short-tenn options were in place, the Licensing Board's finding may begin to make some sense. But there is no such policy in place.
58/ In addition the Licensing Board stated at p.50:
But to reflect in an EIA an appropriate appreciation of appre-hensions expressed by the public, does not ask too much of the Staff in tailoring its environmental review to the facts in this particular case.
The Board also found at p.51:
In spite of the logical concern of Duke over these political and social impacts, the EIA does not analyze or adequately con-sider them. The EIA is inadequate and insufficient to support a negative declaration under NEPA and 10 CFR Sections 51.5, 51.7.
The following appears in footnote 119 at p.49 of the Initial Decision.
[i]n footnote 9 [of Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), CLI-80-25,11 NRC 781, 786 (1980)] the Commission noted that it has not yet detennined whether psychological stress is a health concern under the Atomic Enenjy Act and/or an environmental impact congnizable (sic) under NEPA, and that it is presently considering those issues in connection with the TMI-1 restart proceeding.
On December 5,1980, on an equally divided vote, the Commission decided that psychological stress issues are not to be considered in the TMI-1 restart proceeding. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-80-39, NRC (December 5, 1980).
Carolina Action, an intervenor which was dismissed from this proceeding in June 1979 for failure to participate (Tr. 337-38; Initial Decision at 4), attempted to introduce such a contention at the pre-hearing conferencestage.E On February 23, 1979, the Licensing Board ruled:S At the prior special prehearing conference Carolina Action distributed for the first time its proposed Contention 6.
That contention concerns the alleged anxiety and psychological worry which the transportation of nuclear waste would cause.
This contention is beyond the scope of this proceeding, which involves compliance with the Commission's regulations providing reasonable assurance of public health and safety from the dangers of radiation.
Subjective individual anxieties and fears are likewise beyond the scope of NEPA inquiries.
If this contention is based upon fears of nuclear power, that matter has been resolved by Congress and it is not within the purview of this Board.5j Contention 6 is denied.
Sj Vemont Yankee Nuclear Power Corp. v. NRDC, et al., 435 U.S. 519, 55 7-58 (19 78).
fievertheless, the Licensing Board, without any advance warning giving the parties an opportunity to address the issue, resurrected the issue in its Initial Decision. This is prejudicial error under clearly appli-cable precedent. E The Appeal Board has ruled that when a licensing 59/ Prenearing Conference Tr 15-22, 71, 114-115, 151, 158-59, Tuesday, 9
October 24, 1978; Docket No. 70-2623.
60/ " Order Concerning Discovery, Contentions and Scheduling (February 23, 19 79)."
,6_1/ See Je.. Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 354-367 (1975) and Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 55-56 (1978).
67 -
board decides a case on a ground different from that advanced during the hearing, it must put the parties on notice and give them an oppor-tunity to present their ca:e.
In Niagara Mohawk,1 NRC 347, supra at 354, the Appeal Board said:
- y However, when the Board... elects to decide a case on a basis different from that on which it was brought and tried, it has a concomitant obligation to bring this fact to the attention of the parties before it and to afford them a fair opportunity to present argument and, where appropriate, evidence on the new issues. The cases hold it to be "well settled that an agency may not change theories in midstream without giving respondents reascnable notice of the change."
8.
In finding that Factor 3 on cumulative environmental impacts had not been satisfied, the Board stated that "any ' cumulative environmental impacts' which could be associated with the Duke Cascade Plan...have been overlooked by the Staff...".
(Initial Decision at 40). Continuing, the Board said:
"No attempt has been made to address possible cumula-tive impacts associated with future multiple transshipments of spent nuclear fuels contrary to the requirements of Factor 3" (A. at 40-41).
Tra Board erred in not requesting the parties to supplement the record in this regard.
(Staff Exception 13).6,_2_/
o Following the receipt of evidence on the question of the scope of the proceeding before it, (primarily with regard to NRDC contention 1, 62/ This error is in addition to the error already briefed (supra, under Part II) on the point that the Staff should have considered cumulative-environmental impacts associated with the Duke " Cascade Plan."
-y 9
w g.'----
r-n 7
y w
r --
which is reproduced on p.7 of the Initial Decision) the Licensing Board ruled that the scope of the proceeding would be expanded beyond the transshipment of a limited number of fuel assemblies from Oconee to McGuire. The Board noted that it could not make an express finding
^
that there is no existing or proposed plan or program with reference to the multiple transshipment of spent fuel and, consequently, it ruled that the nature, extent, ramifications and impact of the Cascade Plan could be the subject of evidence but that the Board would reserve final judgment on the issue until it reached its ultimate decision. (Tr.
593-617).
During the course of the hearing, a staff witness testified, giving his opinion on the impact of transshipments in excess of the 300 sought by this license amendment. (Tr. 576). He did not believe that the impact would be significant.
(Ibid.).
Although the Board asked for supplemental testimony in another area (cask drop accident, infra) it never alerted the parties to its percep-tion that the record was deficient as respects cumulative impacts from the Cascade Plan.
Putting aside the question of why interested parties did not seek to have the scope of the proceeding resolved at an early stage, the Board's handling of this matter is certainly not in accord with the spirit of the Commission's Ruler of Practice in Part 2.
Appendix A to these l
l L
Rules, which is a statement of general policy and procedure for the conduct of construction permit and operating license hearings, provides guidance. Appendix A, in pertinent respects (Part V (d)(13)) states:
If the board believes that additional information is required in the presentation of the case, it would be expected to
~
request the applicant or other party to supplement the presen-ta tion.
For judgmental matters on highly contested issues, reasonable bounds should be placed on this guidance. Where, as here, the Board left the parties with a provisional ruling on the scope of the proceeding, there is no sound reason why the Board should not have asked the Applicant and Staff for additional information on cumulative impacts. At least that would have resulted in progress. Otherwise, in light of the Board's provisional ruling on scope, the interested parties could be assured that they would not be the victim of a record insufficiency only by conmitting the resources needed to provide information which the Board may or may not need. This may have made sense at some time in our legal past, but makes no sense at all in a licensing process which is already complex and needs strong leadership and direction from the presiding body in contested proceedings.
~'
l l
l C.
The Licensing Board stated (Initial Decision at 59) that the EIA analysis of possible sabotage was rendered at least partially obsolete and invalid by the Commission's subsequent (June 15, 1979) actions institut-f ing regulations requiring safeguards measures to be applied to spent I
l l
fuel shipments. The Licensing Board erred in its analysis on this matter by failing to confront adequately the record evidence in this ar i and by failing to recognize the significance of the Ar?'icant's compliance with the Commission's regulations in 10 C.F.R. Part 73 which
~
apply to spent fuel shipments (Staff Exception 20).
Sabotage was not an issue litigated before the Licensing Board in this proceeding. A sabotage contention had been sponsored by NRDC as its Contention 6 and was admitted by the Board into the proceeding. This contention predated the Commission's action in instituting regulations requiring that certain interim safeguard measures be applied to spent fuel shipments.
In response to that Commission action, NRDC amended -
its contention (Tr. 343). NRDC, however, chose not to pursue its contention before the Licensing Board. The State of South Carolina expressed an interest in this area in its role as an interested State in the proceeding under 10 C.F.R. 2.715. However, its concerns were satisfied through informal meetings with the NRC Staff.
(Tr.4922-24).
Given this postare, the Licensing Board determined that no adjudicatory examination or analysis of Duke's physical security plan was required.
(Tr. 4964-68; 5105-09) The Board recognized that the Commission had placed interim regulations into effect_ governing the area of physical security of irradiated fuel in transit and, absent a live contention in this area, it would be left to the administrative process, that is the Staff's review, to ensure that Duke's plans in this area met the require-ments of the Commission's regulations.
b e
The Licensing Board first erred in its treatment of sabotage by disregard-ing explicit Staff findings with respect to the potential for sabotage:
The staff has determined based on the great difficulties associated with a successful sabotage of spent fuel in transit resulting in a significant radiological release, that the risks are sufficiently small as to constitute no major adverse impact on the environment. (Staff Exh. 24,
- p. 6)
This Staff analysis presumed that the spent fuel shipments would be made in accord with the Comission's interim regulations on this subject.
(Id. p.4).
The Licensing Board completely ignored this record evidence. The Licensing Board concluded that the Staff's EIA analysis was "at least partially obsolete and invalid." However, the Licensing Board providas no basis for this finding let alone any of its other findings relative to the sabotage issue. Therefore, the Board again ignored the Appeal Board rulings (eg. in Diablo Canyon, 8 NRC 406, 410-411, suora,) that a licensing board must articulate the basis for its findings.
The Licensing Coard also erred in its treatment of sabotage by failing to recognize the significance, for purposes of the licensing proceeding before it, of the Commission's actions in promulgating regulations in this area.E The Connission's promulgation of regulations with respect g
It is well settled that it is a valid exercise of administrative discre-tion for the Commission to determine certain generic facts by a rule-making for subsequent consideration -in individual proceedings. See e.g. SEC v. Chenery Corp., 332 U.S. 194, 203, rehearing denied, 332 (Continued) to physical security of irradiated fuel in transport is, in effect, the Commission's detemination that spent fuel shipments, if made in com-pliance with these regulations, are indeed acceptable. The contrary finding would challenge the regulations issued by the Comission and such a challenge is not pemitted unless made in confomance with the requirements of 10 C.F.R. 2.758.
In this instance (as in the instance of the Board's treatment of a shipping cask which has been certified by 63/ (Continued)
U.S. 783 (1947); American Airlines, Inc. v. CAB, 359 F.2d 624, 630 n.
10, (C. A.D.C.1966), cert denied, 385 U.S. 843 (1966); State of Minne-sota v. NRC, 602 F.2d 412, 416-17 (C.A.D.C.1979); and Ecology Action
- v. AEC, 492 F.2d 998,1002 (2d Cir.1974).
Nothing in NEPA requires the Commission to utilize an individual licens-ing proceeding on an environmentally insignificant proposal to consider a previously resolved generic matter once again. This is precisely the sort of discretionary judgment envisioned by the Supreme Court in Aberdeen and Rockfish R. Co. v. Scrap, 422 U.S. 289, 296 (1975).
The courts have explicitly approved the NRC's decision to proceed by rule-making rather than individual adjudication in determining the facts concerning fuel cycle environmental impacts.
In NRDC v. NRC, 547 F.2d 633, 641 n.17 (C.A.D.C.1976), the court said:
No one questions the AEC's power to...[ deal. with fuel cycle issues by rulemaking, instead of in the context of numerous separate adjudications].
Cf. Union of Concerned Scientists
- v. AEC, 499 F.2d 1069 (CADF1974). Nor do we doubt that generic proceedings are a more efficient forum in which to develop these issues without needless repetition and potential l
for delay. See Ecology Action v. AEC, 492 F.2d 998,1002 (2d Cir.1974) (TrTendly, J.) (dictum)
)
The Supreme Court has noted that "[i]n the Court of Appeals no one l
questioned the Commission's authority to deal with fuel cycle issues by informal rulemaking as opposed to adjudication. [ citations omitted].
j Neither does anyone seriously question before this "ourt the Comission's authority in this respect." Vemont Yankee Nuclear power Corporation
- v. NRDC, 435 U.S. 519, 535 n.13 (19 78).
2 the flRC and DOT), the Board has failed to recognize that, when an Applicant or Licensee confoms to Comission's regulations in an area where the Commission has spoken explicitly, it is beyond the purview of the Licensing Board to make a finding that the activity is not to be pe rmi tted.
D.
The Licensing Board found, notwithstanding the administrative control recommended by the Staff, emphasis should also be placed on "using a physical barrier to positively prevent casks from dropping into the fuel pool." (Initial Decision at 85). The Board erred in so finding.
(Staff Exception 15).
The Licensing Board's rationale on this issue is elusive. The Licensing Board appears to recognize the significant elements in the massive evidentiary record compiled on this issue. Yet, it finds in favor of Intervenor CESG. And it does so without fully articulating its basis, again in contravention of rulings of the Appeal Board that licensing boards have an obligation to " articulate in reasonable detail the basis for their deteminations."
(Diablo Canyon, supra., 8 flRC 406).
y The Licensing Board recognizes that a number of critical and unlikely events must occur before a cask drop accident can even be regarded as a concern. The administrative control proposed by the Staff must be
, violated.5S/ The cask must be moved into a position so that, upon a fall, it would catch the far edge of the cask pit and then fall toward -
the spent fuel pool.
Finally the crane must fail and the cask must drop.
(Initial Decision at 79-80).
Expert testimony on the likelihood 3
of such a serius of events occurring established that such a combination of events was so unlikely as not to pose a safety concern. Mr. Hager so testified for Duke and Mr. Spitalny so testified for the NRC Staff.
(Tr. 4333, 4300-04.) The weight of the evidence supports a finding that application of the administrative control as proposed by the Staff as license conditions will reduce the likelihood of a cask drop at the critical point in the spent fuel handling area to a sufficiently low probability to make that activity acceptable. The Board nowhere arti-culates a contrary finding, much less a basis to support it.
Should the cask drop accident occur precisely in the configuration required to tip to the cask toward the spent fuel pool wall, Applicant's expert testimony established that sufficient energy would be absorbed upon impact of the cask with the spent fuel pool wall to preclude its rotation and falling into the pool.
(Testimony of Mr. C. L. Ray, Jr.,
- )
64/ The administrative control would -limit the path of cask travel so that, should the cask drop, it would strike the side wall of the spent fuel pit rather than the far edge (the edge away from the spent fuel pool).
See Staff Exh. 33. Only if the cask struck the far edge would the.
possibility of its falling into the spent fuel pool arise.
Tr. 4333-41; Applicant Exhibit 28.) While CESG challenged the conclu-sions reached by the Applicant in this regard, (CESG Exhibit 13), the expertise of CESG witness Riley was limited (Tr. 4465-66).
Furthemore, efforts by Mr. Riley to convince the Licensing Board that a cask drop
't model might be helpful in analyzing this issue were rejected by the Licensing Board which recognized that there were sufficient differences between the model and the actual cask and walls as to call the results of the test into question.
(Initial Decision at 81). Again, the weight of the evidence supports a finding that the cask will not tip and fall into the spent fuel pool. The Licensing Board fails to make any finding on this question.
In response to Board interest as to potential consequences should a spent fuel cask fall into the spent fuel pool, both the Staff and the Applicant presented abundant testimony actablishing that the radio-logical consequences of such an incident were within the guidelines of 10 C.F.R. Part 100 and 10 C.F.R. Part 20. The testimony on this issue is conclusive (Tr. 4291-95; CESG Exhibit 31; Tr. 4437-38; Tr. 4343-45; Staff Exhibits 42-44; Applicant Exhibit 33). Again the Board failed to confront the evidentiary facts on an issue which it raised and on which it instructed the parties to develop an extensive record.
The Board also inquired into the potential for criticality should a spent fuel cask fall into the spent fuel pool. Analyses perfomed by the Staff and the Applicant assumed that the boron concentration in the spent fuel pool water would be 2000 ppm.
Testimony at the hearing established that this boron concentration was a valid assumption. This value is set by McGuire Technical Specifications. Staff witness Lantz testified that he had great confidence that this boron level could be 1
maintained.
(Tr. 4980, Staff Exhibit 41).
The Applicant also presented a witness, Mr. William Orth, who sumarized the Applicant's experience with boron concentrations at the Oconee plant. Mr. Orth testified that during nomal operation at Oconee, there has never been any variation in the level of boron. (Tr. 5081). Mr. Orth concurred with Mr. Lantz that, the likelihood of an unexpected decrease in boron concentration of the spent fuel pool water was remote.
(Tr. 5084).
In addition, the McGuire facility is provided with level alams which would alert the operators to any increase in fuel pool water level and thus a possible reduction in boron concentration.
(Tr. 5085). The record evidence clearly supports the finding by the Board that 2000 ppm boron concentra-tion can be maintained in the spent fuel pool water. Even in the remote instance of some. unexplained addition of unborated water to the pool, level alams would announce this occurrence prior to any signiff-cant reduction in boron concentration. Nevertheless, the Board appears
+
to question whether or not an adequate horon concentration can be maintained (Initial Decision at 85):
Avoidance of criticality would depend mainly on having boron levels in the pool water (as a neutron absorber or " poison")
at or very near the specified level of. 2,000 parts of per million.
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i To the extent that the Board has made a finding that boron levels "at or very near" 2,000 ppm baron cannot be maintained in the spent fuel pool water at the McGuire facility, such a finding is not supported by the record evidence.
1 The Board then goes on to recite the record evidence with respect to the potential for criticality in the spent fuel pool should a a cask drop into that area. The Board correctly characterizes the evidence on this issue.
Staff expert testimo,iy established that there would be no possibility of criticality for spent Oconee fuel assemblies.
(Staff Exhibits 40 and 41). The Staff further testified that criticality could not occur in the McGuire spent fuel pool even if that pool con-tained fresh fuel at the highest enrichment presently contemplated at McGuire, i.e., 3.1% uranium 235 by weight.
(Tr. 4980; Staff Exhibit 41). K effective in these circumstances would not exceed 0.98 which is a safe and conservative value.
(Tr. 4946, 4949). To place this value of K effective in perspective, the requirement for a reactor to be shut i
down with one control rod stuck out is a K effective of 0.99 (Tr.
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4984).
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The Staff quantified the likelihood of a criticality as 10-7 or 10-8 (Tr. 4987). The Staff testified that, in the event of a cask drop, K effective would likely go down to estimated values in the range of
.50-55 because the theoretical uniform separations assumed to exist between fuel pins will not occur. (Tr. 4941).
Instead, the lattice will be disoriented in a random fashion.
In spite of the record evi-dence on this question, the Board concluded (Initial Decision at 85):
As to a criticality accident, it would be a close call in the case of dropping the cask on new fuel in storage.
It could create a large radioactive mess in an uncontained building.
It is unclear from the Board's language what would be a "close call" in the Board's view.
If it were criticality, the record evidence certainly does not support such a finding. With respect to the large " radioactive mess" that the Board refers to, the question before the Board was not whether there was the theoretical possibility of a radioactive mess, but rather whether a specific accident was likely to occur, and if it were to occur, whether the consequences were acceptable, f.e., within the guidelines and limits established by the Commission. The record evidence clearly establishes that, given the application of the Staff's proposed administrative control, the accident is not likely to occur.
The record further establishes that, even were the accident to occur, its consequences would be within established guidelines in 10 C.F.R. Part 100. The Board's flndings in this area are elusive, imprecise, poorly articulated and without a supporting basis.
In short, the record does not support the Board's suggestion that a physical barrier be imposed at the McGuire spent fuel handling area to preclude a cask drop accident.
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i CONCLUSION For the foregoing reasons, the Staff's Exceptions should be granted, and the The Board's denial of the requested license amendment should be reversed.
1 evidentiary record manifestly supports issuance of the license amendment.
Should the Appeal Board find, however, that the evidentiary record must be supplemented, the Staff strongly urges the Appeal Board itself to preside In view of the number and significance over the taking of any such evidence.
of the legal errors in the Initial Decision, such a course would be the most efficient and effective one to adopt, if the Appeal Board concludes that additional record information is needed.
Respectfully submitted,
/
Edward G. Ketchen Counsel for NRC Staff hr! Y t
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Richard K. Hoefling Bruce A. Berson Counsel for NRC Staff of Counsel 9
Dated at Bethesda, Maryland thisjg day of December,1980 e
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UNITED STATES OF AMERICA HUCLEAR REGULATORY COMi!SSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of 3 g DUKE POWER COMPANY
)
Docket No. 70-2623 (Amendment to Materials License SNM-1773 for Oconee Nuclear Station
)
Spent Fuel Transportation and Storage )
at McGuire Nuclear Station
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF ON EXCEPTIONS TO INITIAL DECISION OF THE ATOMIC SAFETY AND LICENSING BOARD," dated December 22, 1980, in the above-captioned proceeding, have been served on the following, by deposit in the Jnited States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 22nd day of December,1980:
- Chairman Alan S. Rosenthal.
Dr. Cadet H. Hand, Jr.,
Administrative Judge Administrative Judge Atomic Safety and Licensing Appeal Bodega Marine Laboratory Board University of California U.S. Nuclear Regulatory Commission P. O. Box 247 Washington, D.C.
20555 Bodega Bay, California 94923
- Dr. John H. Buck, Administrative
- Dr. Emeth A. Luebke, Administrative Judge Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Washington, D.C.
20555 W. L. Porter, Esq.
- Richard S. Salzmari, Administrative Associate General Counsel t
Judge Legal Department Atomic Safety and Licensing Appeal Duke Power Company Board 422 South Church Street U.S. Nuclear Regulatory Comission Charlotte, North Carolina 2824%
Washington, D.C.
20555 David S. Fleischaker, Esq.
- Marshall E. Miller, Administrative Suite 709 Judge 1735 Eye Street, N.W.
Atomic Safety and Licensing Board Washington, D.C.
20006 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 J. Michael McGarry, III, Esq.
Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 Mr. Jesse L. Riley, President Carolina Environmental Study Group 1
854 Henley Place Charlotte, North Carolina 28207 Richard P. Wilson, Esq.
Assistant Attorney General State of South Carolina 2600 Bull Street Columbia, South Carolina 29201
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing & Service Br.
Washington, D.C.
20555
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s Edward G. Ketchen Counsel for NRC Staff i
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