ML20147J248
| ML20147J248 | |
| Person / Time | |
|---|---|
| Issue date: | 02/29/1988 |
| From: | NRC OFFICE OF ADMINISTRATION & RESOURCES MANAGEMENT (ARM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V26-N03, NUREG-750, NUREG-750-V26-N3, NUDOCS 8803090267 | |
| Download: ML20147J248 (153) | |
Text
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] CONTENTS r, Issuances of the Nuclear Regulatory Commission
' ^
ADVANCED NUCLEAR FUELS CORPORATION
/ ' '1 Omport License for Natural and Enriched Uranium
- si from a Country Not Speci6ed) s- Docket 11003365 ORDER, CLI 8710, Sepember 21, 19 87 . . . . . . . . . . . . . . . . . . . . . . . 123
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'; ADVANCED NUCLEAR FUELS CORPORATION 1.7 1 , ' 1. ~
Omport of South African Enriched Uranium Hexaauoride)
'l.
,- a- p y . , Docket 11003928
' , , ,1 3,g a - , , ,- DECISION, CLI.87 9, Sepember 21,1987 ............ ........ 109
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'. f BRAUNKOHLE TRANSPORT, USA o< ~ 1li Ompoet License for Natural and Enriched Uranium
,.{
from a Country Not Speci6ed)
'/ Docket 11003204 ORDER. CLI 8710, September 21, 1987 . . . . . . . . . . . . . . . . . . . . . . . 123 EDLOW INTERNATIONAL COMPANY
'; Ompost License for Enriched Uranium from a Country
. Not Specified)
Docket 11002967 ORDER. CL18710, Sepember 21,1987 ....................... 123 EDLOW INTERNATIONAL COMPANY Omport License for Nuclear Source Material from a Country Not Specified) Docket 11000168 ORDER, CLI 8710 Sepember 21,1987 .................... .. 123 EDLOW INTERNATIONAL COMPANY
-5
- 3, . . Omport of South African Enriched Uranium Hexaduonde) l Docket 11003931 2 i DECISION, CLI.87 9, Sepember 21,1987 ..................... 109 1 EDLOW INTERNATIONAL COMPANY
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Omport of South African Uranium Hexaauonde)
.. ;i, '
Docket 11003930 1, - u
.$ DECISION, CL187 9. Sepember 21,1987 ..................... 109
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l EDLOW INTERNA 710NAL COMPANY Omport of South African Uranium Ore Concentrate)
-1 Docket 11003929
< . , . l DECISION, CLI 87 9, Sepember 21,1987 ..................... 109
;)
l INTERNATIONAL ENERGY ASSOCIATES LTD. (Impon License for Enriched Uranium licxafluoride from
. South Africa) <
1 Docket 11003688
~i ORDER. CLI 8710. Sepember 21,1987 ....................... 123
. . . . NEW YORK NUCLEAR CORPORATION
- j Gmpon Liceme for Enriched Uranium from a
~' . ,
-' i Country Not Specified)
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Docket 11003097 ORDER CLI 8710, Sepember 21, 1987 . . . . . . . . . . . . . . . . . . . . . . . 123 q
. j PHIBRO S ALOMON, INC.
Gmport License for Natural and Enriched Uranium from South Africa) Docket 11002933 ORDER, CLI 8710, Sepember 21. 19 87 . . . . . . . . . . . . . . . . . . . . . . . 123 SEPARATIVE WORK UNIT CORPORATION (Impon License for Enriched and Natural Uranium from a Country Not Specified) . Docket 11002957 ! ORDER CL18710, Sepember 21,1987 ....................... 123 TRANSNUCLEAR, INC. ! Ompon License for Enriched Uranium from a Country Not Specified) , Docket 11003111
- ORDER, CLI-8710, Sepember 21, 19 87 . . . . . . . . . . . . . . . . . . . . . . . 123 l
! TRANSNUCLEAR, INC. ,
i Ompon License for Special Nuclear Material from
! a Country Not Speci6ed)
Docket 11002593 i ORDER, CLI 8710, September 21, 1987 . . . . . . . . . . . . . . . . . . . . . . . 123
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.! WESTINGHOUSE ELEC7RIC CORPORATION j (Import License for Enriched Uranium from a Country Not Specified)
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- 1 Docket 11001002 .
- ! ORDER, CLI 8710. September 21, 1987 . . . . . . . . . . . . . . . . . . . . . . . 123
- I j\ Issuances of the Atomic Safety and Lkensing Appeal Boards
-I '
l COMMONWEALTH EDISON COMPANY
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(Braidwood Nuclear Power Station, Units I cnd 2)
, Dockeu 50-456-OL,50-457 OL MEMORANDUM AND ORDER, ALAB 874 September 25,1987 . . 156
-' ]
OEOROIA POWER COMPANY, et al.
}
(Vogtle Electric Generating Plant. Units I and 2)
, Dockeu 50-424 OL,50-425-OL 3 DECISION, ALAB 872, September 15, 1987 . . . . . . . . . . . . . . . . . . . . 127
'} PACIFIC OAS AND ELECTRIC COMPANY
' , (Diablo Canyon Nuclear Power Plant. Units 1 and 2) 3 Dockets 50 275-OLA,50 323 OLA
; MEMORANDUM AND ORDER, ALAB 873, September 18,1987 . . 154 i
Issuances of the Atomic Safety and Licensing Boards ;
! LONO ISLAND LIGHTING COMPANY f (Shoreham Nuclear Power Station, Unit 1)
] Docket 50 322-OL.3 (ASLBP No. 86 540-08 OL) l (Emergency Planning)
! MEMORANDUM AND ORDER, LBP 87 26, September 17,19S7 .. 201 1 I
i PACIFIC OAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
).
1
' Dockets 50 275-OLA,50 323 OLA (ASLBP No, 86 523-03 LA)
) MEMORANDUM AND ORDER, LBP 87 24, September 2,1987 . . . 159 I
i PACIFIC OAS AND ELECTRIC COMPANY
, (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
' Dockets 50 275 OLA,50 323-OLA (ASLBP No. 86 523-03 LA) j INI77AL DECISION, LBP 87 25, September 1 1, 19 87 . . . . . . . . . . . . 168 m .
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TEXAS UTILITIES ELECTRIC COhtPANY, et a?. t-'
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(Comanche Peak Steam Electric Station. Units 1 and 2)
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1 Dockets 50445-OL 2. 50446-OL.2 (ASLBP No. 79-430-06-OL); l -
. 50445-CPA (ASLBP No. 86 52402-CPA) l.
;, -, MEh!ORANDUM AND ORDER. LBP.87 27. Sepember 24.1987 .. 228 t
1 Issuance of Director's Decision <
. ; CLEVELAND ELECTRIC ILLUhtIN ATING COhiPANY. et al.
a . (Perry Nuclear Power Plant. Units 1 and 2) Dockeis 50 440. 50-441 I X.- x- ' I DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206
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DD-87 15, September 14.1987 ............................. 233 p' ;.
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Issuance of Denial of Petition for Rulemaking l- - ,
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WISCONSIN ELECTRIC POWER COhiPANY. et al. l Docket PRhi 73-6
.j, DENIAL OF PETITION FOR RULEhfAKING, DPRhi 87 3. August 20, 19 87. . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . 2 4 3 lli 1
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i ' l Comm.ssion i ! Issuances i l 4 i Z O I @ U) o l 0 s l } ' \ ~ i i l I l---.---- -. ..
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. '. d Cite as 26 NRC 109 (1S87) CU479
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UNITED STATES OF AMERICA
- -- NUCLEAR REGULATORY COMMISSION
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! COMMISSIONERS:
- q -
a ': ( j s Lando W. Zech, Jr., Chairman
~
. Thomas M. Roberts !
Frederick M. Sernthal
- ; -
- Kenneth M. Carr "r
f S Kenneth C. Rogers
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, . .e, in the Matters of '
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-t ADVANCED NUCLEAR FUELS Docket No.11003928 s l, CORPORATION (License Application l
(Import of South African No. lSNM47005) 3
; Enriched Uranium Hexafluoride) ;
EDLOW INTERNATIONAL Docket No.11003929 ! COMPANY (License Application ! 4 (Import of South African No. lU47006) j Uranium Ore Concentrate) t l ! EDLOW INTERNATIONAL Docket No. 11003930 ' i COMPANY (License Application
} (Import of South African No. IU47007) !
{ Uranium Hexafluoride)
<j
' EDLOW INTERNATIONAL Docket No.11003931 !
l COMPANY
~
(License Application ! (Import of South African { No ISNM47008) !
- 4 Enriched Uranium Hexafluoride) September 21,1987 j
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'. 'l.j The Commission interprets (309(a) of the Comprehensive And Apartheid
I
.. ' Act of 1986. 22 U.S.C. 5 5059(a), to: (1) bar the import of uranium ore and r
uranium oxide, regardless of its intended end use; and (2) permit the importation
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} of South African-origin uranium ore and uranium oxide that are transformed into uranium hexafluoride, or othersubstantially transformed" uranium compounds, before they are imponed into the United States.
De Commission also concludes that uranium imports that do not fall within the prohibition of the Anti Apartheid Act thould not be barred on other grounds.
! In this regard, the proposed imports would not be inimical to the common defense and security of the United States or violate U.S. international legal
}
obligations with respect to Namibia. The Commission directs the NRC Staff to act on the four pending import
^
. license applications in accordance with these conclusicms.
- , .j .
RULES OF PRACTICE: EXTENSIONS OF TIhtE
'The Commission refuses to consider untimely filed submissions. The Com.
^
l mission has made cicar that participants in its proceedings are expected to com-t
- 1 ply with applicable time limits, if panics cannot act within the specified time j period, extensions are to be sought prior to the expiration date. See PhiladcIphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI S6 5,23 NRC d 125, 126 (1986).
\
j IhtPORT LICENSES: SOUTH AFRICAN-ORIGIN URAN 1Uht j The Commission concludes that the proper interpretation of $ 309(a) of the
; Comprehensive Anti Apanheid Act of 1986 is one that gives effect to the plain i language of the statute ~ that Congress intended to bar only uranium ore and uranium oxide; the bar does not extend to other forms of uranium.
i IhtPORT LICENSES: SUBSTANTIAL TRANSFORhtATION DOCTRINE The Commission concludes thas South AfricanH>rigin uranium ore or uranium oxide that is transformed into uranium hexafluoride or into enriched uranium j hexafluoride in other countries should not be considered South African uranium ore or uranium oxide and is therefore not barred from importation. The Customs
' Service and the courts have commonly employed a three part test in determining
.I whcther a product has been substarvially transformed. They look to see whether 8 as a result of the manufacturing processes a new and different article emergrs,
'1 having a (1) distinctive name, (2) character, or (3) use that is different from that originally possessed by the article or material before being subject to
- - ]j the manufactunng process. See, e.g.,19 C.F.R. Il0.14(b). Applying thesc
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criteria, the Commission 6nds that uranium hexafluoride and enriched uranium hexafluoride arc substantially transformed uranium products. DECISION i j !. BACKGROUND , i 3
.4 On February 17.1987, seven members of the U.S. House of Representatives (Congressmen Ronald V. Dellums, Mervyn M. Dymally, William H. Gray, III.
'l Edward J. Markey, Charles B. Rangel, Bill Richardson, and Howard Wolpe),
the Oil, Chemical and Atomic Workers International Union,' 'the Nuclear i
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h i. Control Institute, American Committee on Africa, Transafrica Inc., and the Washington Office of Africa ("Petitioners") 6 led a Petition for Leave to Intervene and Request for Hearing on eight import license applications.8 Each of the
. Applicants seeks a license to import South African-origin uranium in various forms. Petitioners sought to intervene principally to argue that issuance of the
- , proposed licenses would: (1) violate the Comprehensive Anti Apartheid Act
-1 ot' 1986 (Pub. L No. 99-440, 22 U.S.C. Il 50015116) ("Anti Apartheid Act");
I (2) be inimical to the common defense and security of the United States; and (3) violate the international legal oblig.ttions of the United States with respect to Narnibia. On June 12,1987, the Commission granted the petition for leave to intervene and hearing request. CLI.87 6, 25 NRC 891 (52 Fed. Reg. 23,091 (June 17, 1987)). The Commission invited the Petitioners, Applicants Executive l Branch, and any other member of the public to submit wTitten commenu to the
- ; Commission by July 13,1987, on the issues raised by the eight import license
; applications.8 Participants could file reply commenu responding to the views of 1 other participants by July 28, 1987. The Commission, at the request of Atlas I Corporation, subsequently extended the date for submitting reply comments to
, f August 4,1987. Although the Commission invited participants to address any issue they ,
, deemed relevant, the Commission indicated that it was particularly interested l In receiving detailed legal analyses, based on a review of 'he legislative history
- of the Anti Apartheid Act, on four questions: (1) Did Congress bar only the j import of uranium ore and uranium oxide, or did Congress intend to bar all i
. I The t'aum m.basquersly wsiMrew trwn se pec,nces
' I Pis.uansre seseguently amended esar pennan to mcNde dune oddmenal persas - Roheit L Oievea. New Mets, stais seator Cartas Cuneros. and Henry Insees Ion My 29. Its'. Browthchle Transport. llsA. enhdrew dues of as apphcauens. No. IU s?001. IU-s7002.
, and IsW17003. Prenausly, an Mare Is. Its7. a het wuhdrewe Appbcauan No. IsN4s7C04.
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j i. forms of umnium? (2) Does the import bar cover imponed uranium regardless l-of its intended end use, or does it only bar the impon of uranium that will be used domestically and not be reexponed? (3) Did Congress bar South African-origin uranium ore and uranium oxide that h.nc~been "substantially l
] transformed"into another form of uranium in countries other than South Africa?
'; (4) Did Congress assign to the Executive Branch, or to the NRC, or to both, the responsibility for interpreting the scope of 6 309(a) of the Anti. Apartheid Act and foi implementing that section? "
The Commission received fourteen timely filed initial comments and two
! timely filed reply comments.' Only three participants - Petitioners, Atlas Cor-j poration ("Atlas"), and Adonced Nuclear Fuels Corporation ("ANF") provided
?
the detailed legal analysis requested by the Commission. The other participants, i with the crception of the Sequoyah Fuels Corporation, submitted shon statel
, Q ments assening that consistent with the objectives of the Anti Apartheid Act.
-! all imports of South African-origin uranium should be barred. Sequoyah Fuels j Corporation argued that all uranium imports for domestic consumption should j be barred. In its view, uranium imports for the purposes of processing and re-j export should be permitted.
'i II. REQUEST FOR ORAL ARGUMENT
! In their comments, Petitioners requested that the Commission hold oral I argument to permit them to explicate their positions on the legal issues raised i by these applications and to permit them to respond to any questions that the i Commission might have. The Commission has concluded that oral presentations are unnecessary. The panicipants have set forth their views in writing, and the Commission believes that based on these submissions it fully understands the ,
I positions of the participants and has sufficient informauon upon which to base its decision. Accordingly, the request for oral argument is denied. i e i ' he Cawrra as not considered carrencnu mat one not umely niet Far asampe. Taiona Poetr Campny i
- subrmned irucal cornmenta cm My 29.1987, and Se U s Cannunes on Energy Asareness sutumnod ks nual cirnments on Aupa 7.1987. keg a.6,er me My is desans far sutemmeg instal cervenerna. It we.1J be unfar to Peuumers and the ces arrnenersers to corse ease las canments beca.se Sey were not gwen a ressmable
} epporuarury to reply to ment he U s. Camtmues cm Energy Amaranens camness in fut were n<a m.tumaed unul shar se other partacipraa had suhrmtted tear redy cerranennt Alermsh Acas had requested and recaned as stiertsson unta Aagast 4 to suberut us reply cenmarsa. a did not s@rmt Aen untal Aupst & li ah=ld have ecsgM ana.har eatensian prior to Aspa 4. The Comnusman has maas clear est pames no tis proceedirs are
-l. tapacted to corngdy wnh er%catde tune larruts. If perbes cantwa sca euhan me specsSed tune penod, estarsur.s j are to te sought pnar to $e empreuan dais. see Ph.Ladelph.e Usenc Co. (tamerut oenersiacas tauen. Uruss t and 21. CU%s. 23 NRC 125.126 (19s6),
l 1 112 1
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III.
SUMMARY
OF DECISION
! Rx reasons stated in this Decision, the Commission has concluded that -
'l 1309(a) of the Anti Apanheid Act, 22 U.S.C.15059(a), bars the import of
; uranium ore and uranium oxide, regardless of its intended end use. Importation of other forms of uranium is not barred by I309(a). South African-origin uranium ore and uranium oxide that are transformed into uranium hexaduoride, or other uranium compounds that are substantially transformed before they are imported into the United States, are also not barred. Becsuse the Commission's interpretation of the scope of f 309(a) of the Anti Apartheid Act is identical to
; that adopted by the De[urtment of the Treasury, the Commission has not found it t necessary to address issues that would have arisen had the two agencies adopted different interpretations of the Act.
'4
, The NRC Staff is directed to act on the four pending import license applica.
l' tions in accordance with this decision. t i IV. ANALYSIS OF PERTINENT ISSUES i Our analysis begins with a discussion of the tour questions posed in the Commission's June 12,1987 Order. A. Did Congress Bar Only the Import of Uranium Ore and Uranium Oxide, or Did Congress Intend to Dar All Forms of Uranium?
- 1. Arguments of the Parties
', Section 309(a)of the Anti Apartheid Act provides that "no-{l) uranium ore,
' (2) uranium oxide, (3) coal, or (4) textiles, that is produced or manufactured in South Africa may be imported into the United States."
A majority of the participants, including Petitioners and Atlas, contends that
- the literal language of the statute does not reflect congressional intent. They argue that Congress intended to bar all uranium imports, not just imports of uranium ore and uranium oxide. They contend thal such an interpretation furthers
, the spirit, objectives, and policies of the Anti Apartheid Act.
Petitioners argue that there is no rationale for limiting the scope of i 309(a)
', to the forms of uranium found only at the beginning and the end of the conversion and enrichment process, while allowing imports of intermediate j forms of uranium, such as uranium hexafluoride (UF6). Petitioners submit that i all that matters is w hether the raw material originated in South Africa. Petitioners t- '
further argue that oxide and hexafluoride forms of uranium are essentially i interchangeable in the marketplace. In this regard, Petitioners note that in 1985 I i
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most of the South African uranium entered the United States in oxide form, but
}
~ that in 1986, in anticipation of k Anti Apartheid Act, importers brought in P ,
most of the imported uranium as a hexafluoride. Accordingly, Pedtioners assert that a narrow reading of 1309(a) would permit k imports of UF 6, thereby
' effectively nullifying the congressional prohibitions, something Congress could not have intended.
j! Atlas also argues that Congress did not intend the terms uranium oxide and < uranium ore to mean only ore in its natural state or chemical oxides, but instead used these terms to mean "processed" and "unprocessed" uranium. Atlas asserts "4' s that no other meardng can be rationally imputed, noting that uranium ore is y ,, ' _ .f ' typically processed into a nitrite or oxide form known generically as yellowcake V (and icferred to generally as uranium oxide (U3Og). After conversion to uranium
, . y .
-> ' - hexafluoride (UF6) for enrichment, the uranium is returned after enrichment to an oxide form for fuct fabrication. Adas argues that the oxide step covers the entire fuel cycle from the extraction of the ore from the mine to the insertion of the fuel into the reactor core. In support of its position, Adas cites floor statements of various Congressmen, which do not explicidy address the scope of the import bar, but w hich in Adas' view can be reasonably construed to mean that the Congressmen thought the bar extended to all forms of uranium.
Finally, Petitioners and Atlas both note that in the Senate debate on the Dole
- Amendment, which would have deleted 5 309,132 Cong. Rec. S1185153 (daily ed. Aug.15,1986), Senators Ford and McConnell of Kentucky spoke in favor i of the amendment, claiming that a uranium import bar would eliminate jobs at I government enrichment facilities in Kentucky and Ohio. The plant in Paducah, Kentucky, is an enrichment plant that uses UF6 as feed. Petitioners argue that if the bar did not apply to UF 6, then there would be no reason for Senators Ford and McConnell to oppose i 309 in order to protect the jobs of plant workers.
ANF reaches a different conclusion, arguing that Congress intended to bar only the import of uranium ore and uranium oxide, as reflected in the plain language of the statute. ANF argues that in the Anti Apartheid Act when
! Congress wanted to bar a product and all of its by products and derivatives,
! it did so quite explicidy. For exarnple, in i 319 of the Act, Congress specif!4 that no "agricultural commodity, product, by product, or derivative thereof" may be imported from South Africa. ANF asserts that the U.S. Court of International Trade in Springfseld Industries Corp. v. United States,663 F. Supp.128 (l987) had adopted this analytical approach in interpreting another section of the Anti.
Apartheid Act.s There the Court held that i 320 of the Act, which bars imports of iron and steel, did not bar imports of South African wire strand, which is an
< advanced product made from steel.
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_ y 2, Commission Deelston After evaluating the commenu, the Com. mission has concluded that the proper interpretation of $ 309(a) is one that gives effect to the plain language of the
,j' statute - that Congress only intended to bar uranium ore and uranium oxide; l '
, 4 the bar does not extend to other forms of uranium, ne Supreme Court has
'- held that the plain meaning of a statute must prevail unless there is "clear L evidence" of a "clearly expressed legislative intention" to the contrary Bread '
l Political Action Committee v. Federal Election Commission. 455 U.S. $77, $81
' (1982). See Chevron. U.SA., Inc. v. Natural Resources Defense Council, 467
.j U.S. 837,842 43 (1983); American Civil Liberties Union v. FCC, No. 851666, i slip op, at 37 40 (D.C. Cir. July 17, 1987).
i y il'
- e [' .
} flere Congress' exp!] cit prohibition of uranium ore and uranium oxide, l, .q -
v; . , d contrasted with lu failure to include uranium hexafluoride (UF6), cannot simply
.io' "
be regarded as mere happenstance or oversight.
,' Uranium ore, uranium oxide (U30s), and UF 6are commonly used and under-
- _I stood technical terms which are accepted throughout the nuclear industry. 'Ihey
! precisely and unambiguously identify completely different forms of uranium uti-
;j lized at separate stages of the nuclear fuel cycle. Uranium ore consists of the raw f mineral, which must be milled in order to produce uranium oxide. U 3 Oi, U3 0s -
is then converted in a separate process to uranium hexa!!uoride (UF6). As Pe-
, '; titioners, Atlas, and ANF all recognize, UF6 is an entirely different compound i l
i
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than U30s. UF 6is enriched to increase the concentration of the radioisotope U 235. Enriched UF6is then converted to an oxide form for subsequent com- ! pression and machining into fuel pellets. Entirely different industrial processes ; are utilized at each stage in the refining and enrichment chain of the fuel cy. : cle. In fact, as Sequoyah Ibels Corporation, one of the two U.S. companies that ; converts U3 0s to UF 6, noted in its comments, the user of nuclear fuel must obtain from separate and independent sources U3 0s, unenriched UF6. enriched UF6, and fuel elemenu. Thus, uranium oxide and uranium hexafluoride are not , essentially interchangeable as Petitioners contend. > When Congress uses technical terms with clear and precise meanings, such as I uranium ore and uranium oxide, it must be presumed that Congress intended to l use the terms in accordance with their traditional meanings. See Corning Glass Works v. Brennan, 417 U.S.188, 201 (1974); in re Ann Arbor Railroad Co., 414 F. Supp. 812 (E.D. Mich.1976). Accordingly, we cannot presume, based on the facts set forth above, that Congress used th3 terms to include uranium hexafluoride. Even if one looked beyond the text of the statute to ascertain congressional !
. intent, the legislative history does not persuasively reveal that Congress intended j to bar all uranium imporu, as Petitimers and Atlas contend. The legislative l history contains no references to uranium hexa!!uoride or to "processed" or
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> e i i! "unprocessed uranium." ne pertinent Committee reports stated that the ban would extend to imports of "uranium ore and uranium oxide." nere is no
- indication in these reports that these terms included all forms of uranium. See H.R. Rep. No. 638, Pt. 2,99th Cong., 2d Sess. 6 (1986); S. Rep. No. 370,99th
- ; Cong.,2d Sess.14 (1986).
1 Various statements made by Congressmen during the floor debates before Congress initially passed the legislation or after the President vetoed the leg. islation. but before Congress overrode his veto, are inconclusive, in some in- , l .
"'j stances the proposed sanctions were described to include "uranium," e.g.,132 s
- Cong. Rec. H3873 74 (daily ed. June 18,1986)(remarks of Rep. Richardson);
132 Cong. Rec. H6778 (daily ed. Sept. 12,1986) (remarks of Rep. Wolpe); at
, ( other times, the bar was described to cover "uranium cre" and "uranium oxide."
~
132 Cong. Rec. 8660 (daily ed. Sept. 29,1986) (remarks of Rep. Richard-son). De legislative history cannot fairly be read to express a clear congres-lV ' sional intent different from the plain meaning of the statute. Unjer these cir. i.
~A cumstances the plain meaning of the statute must prc < ail.nc Commission thus I concludes that only imports of uranium ore and uranium oxide am barred by 1309(a).* De Treasury Department has reached the same conclusion. See 31
-l j C.F.R. I 545.211(a). ,
B. Does the Import Bar Coser Imported Uranium Regardless of its Intended End Use, or Does It Only Bar the import of Uranium That Will Be Used Domestically and Not Be Reexported? At the time the Commission issued its June 12, 1987 Order soliciting public comments, this was a significant unresolved issue, In interim regulations published on March 10,1987, the Treasury Department adopted a preliminary view that the import bar applied only to uranium ore and uranium oxide intended for domestic consumpuon. 52 Fed. Reg. 7272 (Mar.10,1987). However, after receiving public comments and more fully considering this matter, the Treasury Department allowed its interim regulations to expire. Accordingly, as things now stand, all uranium ore and oxide is barred pursuant to 31 C.F.R.1545.211(a) regardless of its end use. 52 Fed. Reg. 25,578 (July 7,1987). Because Treasury Department regulations bar the import of South African-l
- origin uranium ore and uranium oxide, regardless of its intended end use, the issue is now moot. Even if the Commission were to conclude that Congress did not intend to bar uranium ore and oxide imports if the material is brought in l solely for further processing and reexport the Treasury Department's current i
* . 'The caranusman nous en i s0s et 6e Ann Apareend Act pmenbau es sw of an anale smes podead, w mantecasrud by a "primaial esanastum" of sima Afsca la cerursa to l XO(a). Ous sectam bem 63 uransara
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, reguladons would bar such imports. Accordingly, there is no live issue for the
! Commission to resolve. Moreover, our own review of this issue convinces us l that the Treasury Department's interpretation is correct. De plain language of ,
, g i the statute bars the importadon of uranium ore and uranium oxide regardless of [
l" its intended end use. Nothing in the legislative history compels us to adopt a j contrary interpretation.
'. C. Did Congress Bar South African-Origin Uranium Ore and Uranium t Oxide That Have Been "Substantially Transformed"into Another Form of Uranium in Countries Other Than South Africa?
.e y' ~
r 1. Arguments of the Parties 9
, ne question before the Commission is whether South African-origin ura-s ,l nium ore or uranium oxide that is transformed into uranium hexafluoride or into
's _; enriched uranium hexafluonde in other countries should be considered South l j African uranium ore or uranium oxide and thereby barred from importation. In
. Its regulations implementing the Anti Apartheid Act, the Treasury Department >
has concluded that uranium hexafluoride and other articles that are produced i
. from uranium ore or uranium oxide have been "substantially transformed" and are not subject to the import bar. 31 C.FR.1545.425. I De Petitioners and Atlas disagree with this Treasury Department (mdmg. ,
Petidoners argue that the substantial transformation doctrine cannot be invoked I to evade the Anti Apartheid Act's import prohibitions.ney further contend that ( even if the doctrine were applicable UF 6is not a substantially transformed prod- ( uct if the traditional three part test used by the Customs Service is applied. They ! argue that conversion of uranium oxide into uranium hexafluoride is not a suffi- I
~
, 'clent change in character to meet this part of the test; that uranium hexafluoride !
does not have a use that is distinct from its precursors because it is part of a !
; continuous process that eventually leads to nuclear fuel fabrication; and that the ,
; change in name, normally the weakest evidence of substantial transformation, i should not be given great weight. ,
Atlas asserts that there is nothing in the legislative history suggesting that l
, South African material can be imported into the United States so long as it is
] ) processed abroad it then argues that UF6 is not a substantially transformed l l , product because the conversion of uranium ore to uranium hexafluoride is i j relatively easily donc, this conversion is a trivial part of the cost of manufacturing l
, j nuclear fuel and does not change the end use of the uranium from its original ,
j state. Atlas further contends that in the extent that the Commission intends a
'3 technical inquiry into whether UF6is a substantially transformed product, this i is a factual issue that can only be resolved through use of formal adjudicatory 1 1
] 117
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m procedures. Accordingly, Atlas requests that the Commission order a formal i adjudicatory proceeding to resolve this issue. ANF takes a contrary position. It conterkb that to bar substantially trans-formed forms of uranium ore and uranium oxide would be contrary to the plain meaning of the statute, and that there is no legislative history to support a bar
< of substantially transfonned uranium. It funher argues that converting uranium oxide to uranium hexafluoride constitutes substantial transfamation of the mate.
l rial. With respect to this point, ANF argues that the convenion of U3 0s to UF6 < is a significant step in the process of the eventual manufacture of nuclear fuel, j noting that the conversion is performed in large chemical complexes. The cost of
- convening uranium oxide into enriched uranium hexafluoride according to ANF
- is higher than the cost of mining and milling the uranium. ANF states that the
~ cost of converting and enriching uranium constitutes mcre than 50% of the final value of the enriched uranium, and that this 50% is normally added in Western Europe. ANF further assens that uranium from various countries is commingled during the physical prccessing stage so that in rKumal circumstances enriched l uranium hexafluoride produced in Western Europe cannot be physically traced to uranium of South African origin. Thus, it argues that uranium hexafluoride emerges from the manufacturing process as a substantially transformed product with a name, character, and use differing from the original material. ANF also argues that Petitioners erroneously view the Anti Apartheid Act j as legislation imposing comprehensive and complete economic sanctions. In
! contrast, ANF views the Act as imposing only carefully selected, limited sarstions which do not encompass uranium hexafluoride impons, It asseru that if Congress had intended to impose comprehensive sanctions it would have enacted a complete trade embargo. Instead, Congress selected a limited number of products whore importation would be barred, as evidenced by the more than
. $350 million worth of U.S. producu that were imported from South Africa during the first quarter of 1987.
Petitioners in their reply cornments claim that AST provided misleading cost data because the ANF analysis includes the costs of both conversion and { enrichment. Petitioners contend that it is only the cost of conversion that is reles* ant to this proceeding, and that conversion costs are generally between 2
' and 4% of the cost of producing nuclear fuel. Petitioners assert that the cost of I enriching uranium has no bearing on whether UF6 is or is not a substantially transformed product.
- 2. Commission Decision Under U.S. Customs Service regulations, absent a statutory exemption, every anicle of foreign origin imported into the United States must contain l a conspicuous marking identifying the country of origin of the article.19 ;
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' l C.F.R. I134.11. De Customs Servke dennes the country of origin to be the l l country that manufactures, produces, or grows the article of foreign origin,
, - entering the United States. Further work or material added to an article in another l{ j country must effect a "substantial transformation" in order to render such other ,
<- ; country the "country of origin." 19 C.F.R. I 134.l(b).
Dere is no litmus test for determining whether a product has been substan- t tially transformed; each case must be decided on its own facu. De Customs , Service and the couru have, however, commonly employed a three.part test in determining w hether a product has been substantially transformed. Dey look to ,
- ,i see whether as a result of the manufacturing procc,ses a new and different article :
^
! emerges, having a (1) distinctive name, (2) character, or (3) use, which is differ-
-1 ent from that originally possessed by the article or material before being subject 9
; to the manufacturing process. Sec. e.g.,19 C.F.R. I10.14(b); AnAeuser.Busch l 0
Brewing Ass'n v. United States,201 U.S. 556 (1908); Torrington Co. v. United
'l l
, States. 764 F.2d 1563 (Fed. Cir.1985); Texas inrtruments. Inc. v. United States, 4- '681 F.2d 778 (C.C.P.A.1982); UniroyalInc. v. Umted States,542 F. Supp.1026
.l (Ct. Int'l Trade 1982), a/Td,702 F.2d 1022 (Fed. Cir.1983). l I De Commission has concluded that the Treasury Department's 6nding that
, .j UF6is a substantially transformed product is a sound one and has reached ;
! the same conclusion. As discus ed earlier, the plain language of I309(a) bars the importadon of uranium ore and uranium oxide. The legislative history i
- does not reveal a congassional intent to bar the import of a potentially ,
; 1 transformed uranium product from countries other than South Africa. Moreover, there is no indication that traditional customs law, including the substantial ,
transformation doctrine described above, is not to be applied in implementing ;
. the Anti. Apartheid Act. Furthermore, the Commission believes that the doctrine
- of substantial transformauori applies to uranium regardless of lu chemical or .
'{ physical form, when the commxly employed criteria for determining substantial
; transformation are met. ,
he Treasury Department. the Executive Branch agency responsible for ,
. Implementing i 309(a) of the Anti Apartheid Act under Executive Order 12571 !
($1 Fed, Reg. 39,505 (1986)), has concluded that UF6 meets the traditional ; j , tests for determining w hether a product has been substantially transformed. De , j Commission should and will give great deference to that 6nding since the l l Treasury Department has long experience and great expertise in applying the substantial transformabon doctrine; the NRC has never previously been called upon to apply that doctrine. i l Moreover, based on its famillarity with the uranium fuel cycle, the Commis- . sion believes that the Deasury Department 6nding is a reasonable one. Uranium I m' , 1 oxide must be converted into uranium hexanuoride before it is enriched. In our -
.- s I view this is an independent step in the fuel fabrscation process which changes the name, character, and use of the uranium.De technical, chemical name of the !
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,, L, ,..-....w . . . . N A.-.c.; .t. ... . u .. . . product is changed from uranium otide to uranium hexafluoride, tu character also changes. At room temperature, UF6 is a white, volatile solid. At a temper-ature approximately 147'F and a pressure of 22 pounds per square inch, UF6 i melu to form a colorless liquid of high density. At somewhat higher tempera-
-; tures the UF6. changes into a gaseous physical form. At this point the material has a new use, It can be used for uranium enrichment 'The product of uranium enrichment, enriched uranium, could not have been made if the material had
{ been left as uranium oxide.' i Several of the participanu have commented on the cosu of conversion, noting
, l that some couns have taken this facto. into account in applying the substantial tmnsformation doctrine. See, e.g., Udroyal, supra. The record generated on this 1ssue contains conflicVng tr. formation. However, the Commission believes that
.l
. it is not necessary to make a fmding on this matter, because that information
,. ' I is not essential to our analysis. Because it is so clear that the name, character, j and use of the goduct have been changed, we find that UF6 is a substantially
} transformed product. No formal adjudicatory hearing is necessag 'o reach this [
j factual conclusion. 1
.] a D. Did Congress Assign to the Executise Branch, or to the NRC. or to l Both the Responsibility for Interpreting the Scope of $ 309(a) of the Anti. Apartheid Act and for Implementing That Section?
The Commission's interpretation of 6 309(a) of the Anti. Apartheid Act is fully a consistent with that of the Treasury Department, as reflected in that agency's regulations,31 C.F.R. Part $45. Accordingly, the Commission need not resolve questions that would have been presented regarding the two agency's respective authorities had the NRC's interpretation of 6 309(a) differed from that of the Treasury Depanment. l E. Other issues i Petitioners assert that even if 9 309(a) does not form a basis fct denying the pending import license applicawns, their issuance would be inimical to the comrnon defense and security of the United States and would violate U.S. international legal obligations with respect to Namibia. j The Commlision disagrees with the Petitioners and refuses to make an j inimicality fmding. Congress has carefully considered the > cope of the sanctions
'we raw nas est ror per.= or me T.e.n seeds er es Caaw sa t rsts-). == m. mraw.
ea2ds, and armwn heiahnde as owed as esp.-ia podwu Umriane are is c!waf.ed as a snaal and a under j SeeEs 6, TsUs fr1M M 601.s7. Urarmwn mode and ww n heashnde an slais. Sed as chemwa'.s unde sd.eMe 4.TsUs rTIM Nce. 42250 (ea2de) and 472.s220 (heaaneende)
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'l that are to be imposed against South Africa because of apartheid. It has not l ..'"
i chosen to impose a trade embargo on all South African goods; instead it
._ 1 ca efully selected those items that woukt be subject to import restricuons. The f, ,
Commission onds no jusdScadon for making 6ndings that neither Congress nor
, ;, - the Execudve Branch have made. Congress and the Execudve Branch are in a far
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'I better posidon than the Commission to determine whether South African imports s
are inimical to the ccenmon defense and security of the United States or should
'./
_ , s be barred to promote foreign polky objectives. Under the circumstances, the
, _g Commysion .ts unwilling to and that imports not barred by the And-Apartheid
. , Act are inimkal to the common defense and security of the United States.
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't / With respect to Namibia. un&r i3(6vR) of the Anti Apartheid Act, 22 7 (:' '
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, U.S.C.15001(6XD), Namibia is treased a .. ., of South Africa. Accordingly, T -< under thb Comrnission's interpretation of I309(a) of the And Apanheid Act i ~ lj
~ -
y set fonh above, imports of uranium ore and uranium oxide from Namibia are l barred. Again. Congress has made a judgment regarding which imports from
- 5
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, 3 Namibia are barred, and the Commission refuses to act in a marmer inconsistent N I with congressional ir, tent. s ,
* ~
1 One other matter merits comment. In Werrern Nucitar v, //gman,825 F.2d 1430 (10th Cir.1987), the Court of Appeals af5rmed a lower-court opinion
,[j enjoining the Department of Energy from enriching foreign source uranium for i domestic end use. That decision has no I: gal bearing on the Commission's
.j decision today. The issues before the Commission involve what forms of South
, African-origin uranium can be imported under 4 309(a) of the Anti Apartheid Act - not whether uranium that is permitted to be imported can be further processed by the Department of Energy.
l
, (f.~ V. DIRECTIONS TO THE NRC STAFF
' Based on the conclusions set fath above, the Director, Of6ce of Govern-mental and Public Affairs, is directed to act prompdy in accord with this i
Decision on each of the foe pending trnport license applications. The Director is not required to consult whh the Comtnission on this matter before acting, as m
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. It d so ORDERED.*
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R>r the Commission
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1 Cite as 26 NRC 123 (1987) CU-8710 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1 ) COMMISSIONERS: -
'1
, j Lando W. Zech, Jr., Chairrnan
.j Thomas M. Roberts
~
Frederick M. Bernthal
,- Kenneth M. Carr Kenneth C. Rogers in the Matters of EDLOW INTERNATIONAL Docket No.11002967
. COMPANY (Ucense No. lSNM 82020)
(Impost License for Enriched Uranium from a Country Not Specified) TRANSNUCLEAR, INC. Docket No. 11003111 i (Import License for Enriched Uranium (Ucense No. ISNM 83005) j from a Country Not Specified) WESTINGHOUSE ELECTRIC Docket No.11001002 CORPORATION (Ucense No. ISNM-80001) (Import License for Enriched Uranium from a Ccuntry Not Speelflod) l EDLOW INTERNATIONAL Docket No. 11000168 COMPANY (Ucense No. IM.78019) (Import Ucense for Nuclear Source l Material from a Country Not l 4 Specified) l l j INTERNATIONAL ENERGY Docket No. 11003688 i i ASSOCIATES LTD. (U,:ense No. ISNM.84012)
)
(Import License for Enriched Uranium '
, Hexafluoride from South Africa)
I
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; SEPARATIVE WORK UNIT Docket No.11002957 j CORPORATION (Ucense No. ISNM 82016)
(Import License for Enriched and
~
Natural Uranium from a Country Not N Specified)
. l J
1 BRAUNKOHLE TRANSPORT, USA Docket No. 11003204 i (Import License for Natural and (Ucense No. ISNM 83011) Enriched Uranium from a Country c ', , 1
-1 Not Specified)
\
i;l ADVANCED NUCLEAR FUELS Docket No. 11003365
']' CORPORATION (Ucense No. ISNM 83025) ,
l (Import License for Natural and Enriched Uranium from a Country ; Not Specified)
' \ - PHlBRO SALOMON,1NC. Docket No. 11002933- l
-].; (Import License for Natural and Enriched Uranium from South Africa)
(Ucense No. ISNM-82015) I
-I NEW YORK NUCLEAR Docket No.11003097 l CORPORATION (Ucense No. ISNM-83003) l l '
(Import Ucense for Enriched Uranium
} from a Country Not Specified)
-) TRANSNUCLEAR, INC. Docket No.11002593 (Import License for Special Nuclear (Uconse No. lSNM-81017)
Material from a Country Not Specified) Septembe- 11,1987 i The Commission determines that since the issues raised in Petitioners' request for re<ocation of eleven existing uranium import licenses are identical to the issues raised by those same Petitioners with respect to four pending uranium import licenses, the guidance provided by the Commission in its September 21, 1987 decision on the pending South African-origin uranium import license applications resolves the issues with respect to the existing l licenses. See Adw2nced Nuclear fuels Corp. (Import of South African Enriched
~
A Uranium Hexafluoride), CL1-87 9, 26 NRC 109. The Commission therefore 7
.! directs the NRC Staff to review the existing licenses and to issue immediately
,j effective orders to revoke, suspend, or modify those licenses to ensure that the a
,j j 124 I
9
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y - 4 N ,N , - : I > licenses bar imports of uranlum ore and uranium oxide from South Africa and
.. all uranium imports from parastatal organizations.
' 'y- I L _
ORDER On February 17,1987, seven members of the U.S. House of Representatives (Congressmen Ronald V. Dellums, hiervyn Af. Dymally, William H. Gray, III,
. -j Edward J hfarkey, Charles B. Rangel, Bill Richardson, and Howard Wolpe), the s
s
~
] i Oil, Chemical and Atomic Workers International Union,5 the Nuclear Control Institute, American Committee on Africa, Transafrica, Inc., and the Washington I' - 'F
'. 1 Office of Africa ("Petitioners') filed a "Petition for Commencement of License
[ 12
, f; ' , :A Revocation Proceedings" seeking revocation of eleven existing uranium import 1
licenses to the extent that they permit the import of South African-origin
, uranium. In their original petition and in a supplemental motion filed on hiay 13
.A 1987, the Petitioners also sought the immediate suspension of the licenses. 'Ihe 4
Director of the Office of Governmental and Public Affairs denied the request n . for immediate suspension in a decision dated hiay 27,1987.
. :- On hiarch 10, 1987, Petitioners moved to amend their petition to include
. three additional parties - Robert L. Chavez, an unemployed uranium miner, 1 Carlos P. Cisneros, a state senator from New hiexico; and Henry Eric Isaacs, i a South African exile. On April 13, 1987, ANF filed an answer opposing
- Petitioners' motion to amend. On hiarch 16, 1987, Advanced Nuclear Fuels Corporation ("ANF"), holder of License No. ISNht 83025, filed an answer
, opposing Petitioners' motion to amend. Previously, it had filed a response in
{ opposition to the petition. No other Licensee filed a response to Petitioners' pleadings. After reviewing these submissions, the Commission grants the request to add three additional Petitioners because this action does not prejudice the i affected Licensees. With respect to Petitioners' substantive claims, the issues they seek to raise are identical to those that these same Petitioners raised with respect to four pending applications for licenses that would authorize the import of South African uranium. Today, the Commission issued a Decision, CLI 87 9,26 NRC 109, setting forth its views on the issues relating to those pending impon license ) applications. The Commission's resolution of the issues in CLI 87 9 also guides the resolution of the Petitioners
- request for revocation of existing licenses. In l accord with CLI 87 9, we are directing the Staff to issue orders, as necessary, l to ensure that existing licenses bar imports of uranium ore and uranium oxide from South Africa and all uranium imports from parastatal organizations. To 8 m t'reen out.equersly munir. tran ihe runen en Fetwuery 20.19:7.
l 125 l 4 !
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-1 the extent that this action is consistent with the Petitioners' request, we have q granted the petition. In all other respects, the petition is denied.2 Our decision in CL1-87-9 provides the substantive basis for our action on
.." the issues, which are essentially of a legal nature, raised by the petition. Thus, further hearings on the petition are neither necessary, see Eddleman v. NRC,825
'-3 F.2d 46,48 (4th Cir.1987), nor are they required by law. See id. at 5; lilinois
- -j v. NRC,591 F.2d 12,13 14 (7th Cir.1979); Porter County Chapter of the Isaac 1
Walton League v. NRC,606 F.2d 1363,1369 (D.C. Cir.1979). n' Based on the Commission's Decision in CLI 87 9, the Director, Office of Governmental and Public Affairs, shall review the licenses being challenged here and promptly issue appropriate orders to amend, suspend, or revoke those
"' licenses, in accord with that Decision. Those orders should be immediately 7 effective.
r - Commissioner Roberts was unavailable to participate in this Order, j It is so ORDERED.* 1
- !, For the Commission N
SAMUEL L CHILK Secretarv of the Commission _ 'l 3 Dated at Washington, D.C., this 21st day of September 1987. s t
- , l l
}
1 2 In $ar crigal reques for rehef. Pctiumers had also asked eat the Cormuasim ensure anilahnty of "all
- peruners data" regardes the issues raised in the peunon and gra s "reasor.ab;e discovery of relevait docurners.s and persons." Athough discovery was derued in se related piaceedag a the unport agucauons and is not a "nghs" under Comrrussim pracnce wsth respect to considerance of petaions to rnodtfy, susped, or revoks
}
heenses. the b'RC Stafr did plue pestiners docummta as se Cormussa's possesam in the h7C Pub 5e Docurnent Room for pbbe inspecuan and copytng. see CU 87-6,2s NRC $91. 894 (1987). Petaimers had l 1 also requested cmsolidation d sear pecdon for revocanon eth proceedess cn that putim to intervene on me ' ' ' hcense aglicauens. Consabdauan was derned in the Cornnussion's earber order. CU-874. because the legal frame *ods for acteg on iiunal arthcanma differe from that me re9ect to ropests to modly suspend. or revoks hemnes. ses genrreuy tiliwis v. NAC. 591 F.2d 12 (Ni Cir.1979). j ' Chairman Zach was not present for the aftsmanon of thas order,if he had been presers. he would have approve 4
-( r '.q is. ,
r 1 126
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Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Dr. W. Reed Johnson Thomas S. Moore C l Christine N. Kohl Gary J. Edles 5 ! Howard A. Wilber - O co : l i J 1 g l w ! Q , i O-4,- i i i
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1 i Cite as 26 NRC 127 (1987) ALAB-872 4
.t
.i UNITED STATES OF AMERICA
, 4 NUCLEAR REGULATORY COMMISSION
,j ATOMIC SAFETY AND LICENSING APPEAL BOARD
- a. - ,
. . Administrative Judges:
( > -
, }}
?
~
s , i Gary J. Edles, Chairman
+
'_ ii '
Christine N. Kohl Howard A.Wilber
'l I l In the Matter of Docket Nos. 50-424 OL
.I 50-425 OL
~
-l GEORGIA POWER COMPANY,
')] .
et al (Vogtle Electric Generating Plant, Units 1 and 2) September 15,1987 On appeal by the intervenor in this operating license proceeding from a portion of a Licensing Board decision in favor of the applicants, LBP-87-28,24 NRC 263 (1986),.and various interlocutory rulings of that Board, the Appeal Board affirms each of the challenged rulings. The Appeal Board also denies the l intervenor's request to reopen the record. Finally, the Appeal Board conducts i' a sua sponte review of the remainder of LBP 87 28 as well as the entirety of a second decision in applicant's favor, LBP-86-41, 24 NRC 901 (1986),
~
as modified, ALAB 859,25 NRC 23 (1987), and finds no error that warrants corrective action. RULES OF PRACTICE: BRIEFS The Commission's Rules of Practice require an appellant's brief to identify i clearly errors of fact or law that are the subject of the appeal. Ibr each issue appealed, the precise portion of the record relied upon in support of the i 1 assertion of error must be set out.10 C.F.R. 2.762(d)(1). The brief must also
. J
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. i j 127 j
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- . a contain sufficient information and cogent argument to alert the other parties and the appellate tribunal to the precise nature of and support for the appellant's
.}
$ claims. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),
- I ALAB 843,24 NRC 200,2CM (1986).
RULES OF PRACTICE: BRIEFS .
-1 ne Appeal Board does not generally entertain matters that are not fully
~ ~
-j briefed. Public Service Electric and Gas Co. (Salem Nuclear Generating Station,
- m Unit 1), ALAB 650,14 NRC 43,49-50 (1981), ag'd sub nom. Township of
, Lower Alloways Creek.v. Public Service Electric & Gas Co., 687 F.2d 732 A
~
' ~ ~
(3d Cir.1982). It is not sufficient for a party merely to repeat a contention
-' and its purported basis, or to reasscri proposed findings or arguments and 7y ~ ~. ' information rejected by the Licensing Board. Cleveland Elcetric Illuminating
" - ~
,~
s Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB 841,24 NRC 64,69,
' reconsideration denied, ALAB 844,24 NRC 216 (1986); Long Island Lighting
; . .l Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-827, 23 NRC 9,11
, 1 (1986).
RULES OF PRACTICE: BRIEFS Parties whose briefs fail to conform to Commission requirements must bear
~
the risk of any shortcomings in their briefs. RULES OF PRACTICE: SU313f ARY DISPOSITION De movant of a motion for summary disposition has the burden of proving the absence of genuine issues of material fact even if the motion is unopposed. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB 443,6 NRC 741,752 54 (1977). APPEAL BOARD: SCOPE OF REVIEW
' Absent a serious substantive issue as to which a genuine problem has been
- demonstrated, arguments that could have been presented.below, but were not, will not be entertained on appeal. Tennessee Valley Authority (Hartsville Nuclear Plant. Units I A,2A,1B, and 2B), ALAB 463,7 NRC 341, 348 (1978),
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'l RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)
)
.; To be admitted in a licensing proceeding, a contention must have its basis f { set forth with reasonable specificity.10 C.F.R. 2.714(b).
RULES OF PRACTICE: REOPENING OF RECORD
~
To prevail on a request to reopen a record. a movant must show (1) its motion
+
is timely; (2) the motion addresses a significant safety or environmental issue;
- f. _; and (3) a materially different result would be or would have been likely had the newly proffered evl' nce been considered.10 C.F.R.1734. See also Public Service Co. ofNew Hampshire (Seabrook Station. Units 1 and 2), ALAB-865, 25 NRC 430,441 (1987).
, l, 1
TECIINICAL ISSUES DISCUSSED i
,j Cumulative effects of radioactive releases; j Seismic design (impact of Charleston earthquake);
-i Construedon quality assurance;
' Groundwater contamination through grouted wells;
; Reliability of Limitorque motor operators for valves;
~j Degradation of polymers used in electric cable insulation; i Surveillance and maintenance program for electric cables.
i
. APPEARANCES Douglas C. Teper, Arlington, Virginia (lioward Deutsch, Atlanta, Georgia, j on the brief), for intervencr Georgians Against Nuclear Energy.
Bruce W. Churchill, Washington, D.C. (with whom Delissa A. Ridgway, Dasid R. Lewis, and Rose Ann C. Sullivan, Washington, D.C., and James E. Joiner, Charles W. Whitney, and John R. Stolm, Atlanta, Georgia, were on the brief), for the applicants Georgia Power Company, l et al. i Dernard 51. Bordenick for the Nuclear Regulatory Commission staff, t
~
! 129 i
i 1
=
g .I 4 j m n-g b , DECISION
- d^ 'lhis proceeding involves an application filed by Georgia Power Company on
~
behalf of itself and several other co-owners for licenses to operate Units I and
'j ;
2 of the Vogtle Electric Generating Plant in Burke County, Georgia. Intervenor Georgians Against Nuclear Energy (GANE) submitted numerous contentions i dealing with environmental, technical, and emergency planning issues. Many of ' GANE's contentions are identical to some of another intervenor, Campaign
} for a Prosperous Georgia (CPG). CPG later whhdrew from the proceeding and
,s ; thus we dismissed its appeal.'
j The Licensing Board admitted some contentions, rejected a number of others at the threshold, and considered one to have been withdrawn.2 The applicants
~
ij
- .' thereafter moved for summary disposition of all admitted contentions and the Board granted the motions with respect to all but three matters. Hearings were
~)
~t held on those matters and, in due course, the Licensing Board issued two partial
' initial decisions in which it found in the applicants' favor on those counts as well.'
GANE appeals from a portion of the Licensing Board's first partial initial
' (ecision, in addition to numerous prior rulings rejecting certain of its contentions and granting most of the applicants' motions for summary disposition, GAST also asks that we reopen the record with respect to one contention earlier rejected by the Board. The applicants and the NRC staff oppose GANE's appeal As explained below, we affirm each of the Board's challenged rulings and deny the request to reopen the proceeding. We have also conducted our usual sua sponte l review of the entirety of both partial initial decisions and the underlying record 8 3
J and find no error that warrants corrective action.
, J
]
1, 3ALAB-851. 24 NRC 529 (1986). 1 Jee, e.g , t3P 64-35,20 NRC 887, recessideewaien denied,13P 84 49,20 NRC 1457 (1984); Wrnorandwn j
, and order of september i A 1985 (anpubluh4
^, _
; 334,, a 3, Mancrandun and order d August 21,1985 (unpuwhedt Memorandurn and order of septan-ber s.1985 (unpWhed); Manorandurn and order rf october 3.1985 (unpubhshed), recesaderen'en denied.
3 Memorandwn and order of Decenter 3.1985 (unpuwhedi Memoraneam and order d Neernber 5,1985
, i (unpbbshed); Mammanduen and order of Neenber 12,1985 (unpubhshed), recessideranos denied, Manwan- !
dwn and order d Jamary 6,1986 (anpubbahed); Mernerandam and order of Nowrnber 25,1985 (arpubhshedh 4 Manorandan and order of May 5,1916 (unpWhedh Wrnorandum and on er of May 1% 1986 (unpubbshed); )
- Wnorandurn and order of May 15.1986 (unpuwhedy, Manorandum and order of May 211986 (unpubhshed). l Marnorandurn and order of July 17,1986 (unpubhshed). l
_ f
'% _j
- Jes 13P 8628,24 NRC 263 (1986); 12P-1641,24 NRC 901 (1986), as swd.,4ed. ALAB 859,25 NRC 23 (1987).
Jes AtAB-459,25 NRC at 27 and cases ched; Appeal Board order d February 2,1987 (unpbbshed). g , }a
.J
- 130
)
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, ,- 343: - , -
- , e s L MATTERS INADEQUATELY PRESENTED ON, OR
'!t PRESERVED FOR, APPEAL s .
- . . . J l
e '- - 1 A, As we have from time to time observed, the Commission's Rules of f
,' - 2 s
y ] t Prxtice require that an appellant's brief clearly identify the errors of fact or law that are the subject of the appeal For exh issue appealed, the precise portion of the record relied upon in support of the assertion of c Tor must be set out.' The
.j brief must also contain "sufficient information and cogent argument to alert the other parties and the appellate tribunal to the precise nature of and support for .
3 . _ _ I the appellant's claims."' We do not generally entertain matters that are not fully a, , ,x
- X -; briefed.' In this connection, it is not sufficient for a pany merely to repeat a s , [ y. -
- contention and its purported basis, or to reassen proposed findings or arguments
' , " ,N - lf , and information rejected by the Licensing Board.' Parties thus must bear the 9
g . 1; . risk of any failure to brief matters adequately, Our requirements in this regard W '
~ '
are not unlike those of other administrative agencies and the courts," Among the matters GANE appeals is the Licensing Board's rejection of its contentions I, 4, 6, 9,10.2,10.9, and i1 (in part). These concern, respectively,
' , n the accuracy of cenain estimates of radiological releases in the applicants' Final Safety Analysis Report (FSAR); the licalth effects allegedly produ,ced by transmission lines; thermal shock; the safety of a newly designed pipe restraint system; the synergistic effects of radiation, heat, and oxygen; the .
.. seismic qualification of plant equipment; and defects in the steam generator
! system.12 In each case, however, GANE's brief simply sets forth a challenge to the Licensing Board's action in a cursory fashion or repeats assertions made
~
at earlier stages of the proceeding without any genuine effort to address the Licensing Board's rationale for decision." GANE also elected not to elaborate on its assertions at oral argument. 10 C FJt. 2.762(d)(1).
'Carolias few & Ug4 Co. (shearm Hams Nuclear Power Plant), AIAB-843,24 NRC 200,204 0916).
'faNic Service Etume and Ces Co. (salern Nuclear Gerierstes station. L'mt 1), ALAB-6s0,14 57C 43, 49-50 (l98I), d'd a,b som. TowuAir of Low Alloways Creek v. FuNac Serveco Elecrec 4 Gas Co 687 F.2d 732 (3J Cir.1982).
'Cisveland Elecoic filaminariag Ce. (Peny Nuclear Power Plant,l':uts I and 2), ALAB 841,24 NRC 64,69 recoaredersaea desesd, AtAB 844,24 NRC 2l6 (1984); Leag Island Ug Arsag Co. (shoreham Nuc1 car Power staoon, Uma 1), AtAB 827,23 NRC 9,11 (1986).
I'rAiladelpAsa Elecaic Co. (tmerd Generstma stauen, tl nits 1 and 2), AIAB 785,20 NRC 848,870 n.76 l (1984). 4 " Sas, e.g Beans Anans v. IM,810 F.2J 1077 014 Cir.1987); M rcAel r. Ceaseel E!acmc Co 689 F.2J 877 (94 Cir.1982). i 12g,e !.3P 84-35, 20 NRC at 911 13. 91516, 897-98,90243, 903-04,907; LEP-84.49,20 NRC at 1458
- 59. Escep in se case or corn.erem 9 (which the Board treated as wuhdrswn), ce Board dearnuned that these
, ccraer.txms lacked adequate basis or specs $ city or bod. See discussian ife p.154 and note 24.
., "Jes GANE Appeal, Boer and Propcsed Findies: (octeer 8,1980 [herematter "GANE Dner") at 2 3. 4,6,
~
. ! 15,16,19,19-24 We acts $at insdar as ccruarcon 11 is concerned, GANE's bner is ccrifined to that partion -
1 rejected by *e (Jeansel Board at the cutset - that emectris steem ger.ersta detects caused by stress corrosion
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4 s .I ~ j In denying the applicants' earlier motion to strike OANE's brief for, among 3
', j other things, its failure to conform to the Commission's requirements, we noted that GANE would nevertheless have to "bear the risk of shortcomings in its
' 4 '
~
y brief."" That risk is now realized,'for the circumstances oblige us to reject
- ' on the ground of inadequate briefing, and thus to treat as waived, GANE's "
1, arguments in regard to contentions 1, 4, 6, 9,10,2,10.9, and 11,"
- 1 B. GANE also appeals the Licensing Board's grant of the applicants' mo-tions for summary disposition of contentions 10,3 (environmental qualification
~.
;j of EPR cable material in multiconductor configurations),10.7 (environmental
', 'l qualification of hydrogen recombiners),13 (emergency planning), and 14 (reli-
. 7 ,,
- ability of TDI diesel generators)." Each of the applicants' motions was accom-
/. P. -
. l.: < panied by one or more supporting affidavits and a statement of material facts
?' - .? ; for which it was alleged no hearing was required. The NRC staff supported all q.- '
" ' - ~ of the motions, supplying its own affidavits as well. After carefully evaluating these presentations in each instance, the Licensing Board found "no genuine
~
~
issue as to any material fact" - the standard for summary disposition - and thus dismissed these four contentions," c. crackmg. GAS"E does not chauenge, and sus we need am address, ce Board's subseque,t summary disposanon of the remamder of the coruenuon (is., defects attabuuble a vibrauon-aduced fangue crack.mg and bubb'e collapse). See id at 19 20, Memormdtrn and order d sepembe 3,1985. GASTs "argument" mth regard to corsenum 9 is peruculady unavadmg. TLs contannon cornplamed that the appbcaras had faded to provide "evert the trurumal informativo requued to andermand and assess the safety repercuss ans of !she] innonuve design" of a cerum pipe restriant systarn. LEP.54 35,20 NRC et 902. The apphcants agreed to provide GANE wuh se propnetary mformanen m quesuon (under protecove order), after which CANE agreed to arund or to wuhdraw the contsnuan. Ed Jes else Tr. 65-71. CASE recoved es
" information (CANE Bnef at 15), bia Eled nothics with the tacenses Board.The Bosrd accordingly and property !
trused the cetmuon as wuhdrawn. See LBP.84-35,20 NRC at 902-03. Su stre 10 C.FA 2.707. GANE now ]' objects eat the a;plicants' information a this scors is "preposterous " and imphe that unspect$ed regulatory requuemaras have not been met. GAh1 Bnsf at !!. Not only does GAh1 whoDy fail to saplam its viewpomt (as in the case of contenuens I,4,6, la2,10.9, and 11), is also unpermisaMy make tius crypoc claam fw me Arm urne on appeal. See ipe p.133. I' Apput Board Memorandum and order of october 27,1986, at 34 (unpubtshadi i uGANE a'so brwfly refers to the t.Jeansing Board's rejection of its conuenuen 3, whis essencally cacemed I the fear and consequent psydological impact of hymg adjaces in a nuclear poner planL The Board found est ilus contenuon was prohibsted by the Ccenrn2ssion's Pobey sutames on *Consideremen of Psychological stress { Issues," 47 Fed. Reg. 31,762 (1982). De Board also noted the sapreme Coun's holdeg in AfearepeWee Edsee j Co. v. fmple Asmars hcleer EnarryA60 U.S. 766 0983) [heromaAer *pA.VE"),ihat ths Nauonal Environmental a Policy As of 1969, d2 U.s.C. 4321. does not requus canadereuen of the psydoksical irnpacu of hymg near I a nue:aar plant t3P s4-35,20 NRC at 915. GASI s.ates that, if es Board is in fact conaramed "frorn abota"
,l fun admiturg coruenuen 3.then in does not appal this issus. GAST Bnet at 3-4.
l De Ucemns Board eas,in fact, bound by the Comnussion's Policy suternet a psychological stress issues, j and the Board werectly aplied it in disrrusses GAhTs corsonum 3. Wreover, se Commission has recently
; revded eis Policy statemes as obsolete, nourg that a has been superseded by the Court's decssion in PAVE. See i 52 Fed. Reg. 20.592 (1987). Thus, pyddogical suess is not a htigable issus in NRC bcenseg pr~aAss.
' ' ~ ' I'Jee, respecthely, Marnerandum and order of August 21,1985; Memorandum and order of Novenber 5.19 s5; y ,. ~
- Memortada and ordcrs of May 5,12,13, and 22 and hly 17,1986; Memorandurn and order of Novenber 25
- 1985.
A. e j
- f. . _.i ,: "10 CE.3L 2.749(41
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>' c The Commission's Rules of Practice explicitly invite replies to summary i
.{ disposition motions, "with or without affidavits,"" A failure to respond with C '
evidentiary material to such a motion - although obviously risky - does not
' , 7 automatically signal a grant of summary disposition. The movant still retains
' ,~
, y' , h< the burden of proving the absence of genuine issues of material fact." In the
-! case of contentions 10.3,10.7,13, and 14, however, GANB filed no response
- j whatsoever to applicants' motions for summary disposition, thereby depriving
, . . the Licensing Board of the benefit of GANE's views on the motions." GANE therefore raises its arguments in connection with these four contentions for the f9D ~
, . . s .[ . ' '
ftrst time on appeal. It is well-established in NRC proceedings that, absent "a M ,, ,'- 1 u. R < serious substantive issue as to which a genuine problem has been demonstrated," p N" arguments that could have been presented below, but were not, will not be (
' ~ b;f
. ' , --; cg? entertained on appeal.23 GANE's arguments here reveal no such serious issue. - ~ .9 v q. ' 4 . s. . T.' Indeed, it offers no real argument at all as to contentions 10.3 and 13, simply
, noting its disagreement with the Board's rulings.22 As for contentions 10.7 and y 14, the points GANE briefly mentions were, in fact, discussed by the Licensing
~_>. - >
. . , Board in its summary disposition rulings, but GANE makes no attempt to explain why the Board erred in its analyses.22 We therefore conclude that GANE's appeal
~ '
^' '
from the Licensing Board's disposition of contentions 10.3,10.7,13, and 14 fails.
~
IL OTilER CONTENTIONS REJECTED AT TifE TIIRESIIOLD In addition to the contentions discussed in section I.A, GANE challenges
, the Licensing Board's refusal to admit contentions 2 and 5, relating to certain cumulative environmental effects and the seismic evaluation of the Vogtle plant, Is 10 CF.R. 2.749(a).
~
"Clawland Elecme Dhg Co. (Perry Nuclear Po.er P! ant. Unas 1 and 2), AIAB-443,6 NRC 741,
~ 752 54 (1977) (cams A4.ckes v. JJf. Kreu and Ce.,398 U.s.144,157-61 (1970)).
"CANE claims that it did reply to the motica for summary dasposaien of cornerman 14 sad snaMes o meerporats this a3eged reply (for whidt it prondes no date estauon) by reference into its appeHats teef. GANE Bnet at 21. The applicams NRC staf, and IJeanseg Board, however, au sute mat they never receved this pleadeg. Amlacams' Bnef CVovember 14.1986) et 68; MtC staf B nel(Nowmber 26,1986) at 42; Memorandum i
_ ~ and order of Novenbar 25,1985, at 12. We han hkeesse searched the record and haw fomd no reply by GANE s - to se appucants' mouan for samary dispostuen of cornersaan 11.
, 21 Tenausee Veney AasAor,7y Otansvine Nuclear Plant. Urats I A. 2A, IB, and 2B), AIAB-463. 7 MtC 341, 348 (1978).
t2sse CANE oner at 16-17. 20. Ilance, OANT.'s ameal en these too conianoons also fatis to ccnform to the Comrrussion's brseAng requiremeras. See sacre p.131.
., 22rw instance, GANE argues that il "producuan model"of the Vog,la hydrogen recernbmers (casarean 10.7)
~ *%as newr been tested." OANE Bnet at 18. The ticensing Boani, however, faDy desenbod the tesung of this
's?'
- , eqinpmera and its adequacy. Memorandum and order of Newmder s.1985, at 3-6. GANE also complams sat the
.f '
...; < 1' ' prob!ams wuh TDI d enel ge,ersters (ccusanuen 14), documersed in ecusands of pages of repons, have "acs been s - . ,
' ' . rect:Aei" GANE Bsef at 21. But agam, the Board adequately dealt wuh das maner, conchadmg that the TDI
' problems sppbcable to Vogt!e other have been corrected already, or are beug resolved in cmpng erginescas
- g~ ,
' , f_ . . y, reviews ander a program that GANE did not chauer. set Memorandum and order of November 25,1985, at 5.
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133
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1 respectively. De principal reason for the Board's rejection of these contentions
']
l (as well as those already discussed above) is their lack of basis and specificity, l as required by 10 C.F.R. 2.714(b).2' In each case, we uphold the Board's xtica.
'~,..q - -
A. GANE's contention 2 asserts that the cumulative environmental effects of "the addition of Plant Vogtle within 20 miles of the (Savannah River i' j Plant)" have not been adequately quantified and assessed." In support of this
- 1 contention, however, GANE relied heavily on the fact that the Department of Energy (DOE) has for many years operated the Savannah River Plant (SRP) in
~ -l connection with the production of nuclear weapons, and that DOE now proposes i
~
to rextivate its so-called "L rextor" at SRP in order to increase the production
~
, . _ j '! of plutonium and tritium for the nation's defense program.2' He Licensing Board found the contention inadmissible for essentially three reasons. First, it
.C / . ,
d
' : 4 failed "to address, except in vague, unmeaningful terms, the incremental impact of Vogtle." Second, it failed to show "how or why the assessment of SRP
. f '- o ,' _s, releases contained in the Vogtle FSAR is in error or needs to be reexamined."
f , j,! Dird, GANE's concerns are primarily with the SRP, over which the Department i of Energy, rather than the NRC, has responsibility.21 On appeal, GANE objects j to the Licensing Board's "jurisdictional" ruling with regard to DOE and argues that contention 2 did focus on the additional impacts attributable to the Vogtle plant.28 We agree, however, with the Board's rejection of the contention. lj As the Licensing Board correctly pointed out, GANE's filings in connection
-i with contention 2 consisted primarily of a discussion of radioactive releases from the Savannah River Plant and groundwater contamination resulting from
' those releases." GANE did not challenge any applicant or NRC staff calcula-
, tions regarding releases from the Vogtle plant. Although the contention cites NRC regulations, it does not explain how releases from Vogtle might exceed
~ regulatory standards or result in any more than a de minimis impact on the envi-ronment overall. Apart from a highly generalized assertion that it is necessary to quantify properly the extent of the Savannah River Plant releases in order to bc able to evaluate any incremental effect of releases from Vogtle in the event of an
.l accident, GANE did not attempt to correlate the likely additional releases from
. j i
.1, 24see P4ladelpMa Electric Co. (12menck omsretmastaum, tl ruts I and 2), ALAB 845. 24 NRC 220. 230-
-1 31 (1986) (&scusses the bens and spect5cuy requusmmts and citing PAsledelpWe Electne Co. (Psach Bouem 1 Atomic Power stauon. L'russ 2 and 3). ALAB-216. 8 AEC 13. 20w21, sie4And ee eder smiunde. QJ 7432, t
.l AEC 217 (1974)).
i U spenneauy. catanim 2 reeds: "Applicant has faded to assess the armtemental and pubhc heahh e& cts or
' the addtuon of Nta Vogue eidun 20 mues or the sRP and to quanufy this rector in its considersuon in violation of 10 C.FA 20.103. sa34(aX4). 51.21, $1.23(b).104.105.106 and 201? 13P.54 35. 20 NRC at 913.
24ses oANE supplaueit to Painan for Leave to Intervee and Repest fce Woong (Apnl 11.1984) (heromahar f i "GANE supplanens") at 3; unuued oANE Shra Oune 13.1984)[heromahar'13ANE's AmeMed Con. anum 2"). y: 21LBP-84 35. 20 NRC at 914. 2s oANE Bnst at 3.
.5 "L3P.64 35. 20 NRC at 914. our the appbcants' objecuon, the L.icanang Board anowed oANE to expend upm its ongmal Rhns, both cenUy and in ennng. /d at 914 al n
i i 134
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i Vogtle with any meaningful environmental effect. Its argument is simply that
] any radiological releases from Vogtle will aggravate another situation already
- a. c
. , - A; unacceptable to G ANE due to operations conducted at the Savannah River Plant, c , y. , . .. 1 including, particularly, the proposed reactivation of the L rextor. Thus, the i Licensing Board fairly construed G ANE's contention 2 as lacking a reasonably
,'. specific relationship to matters within the NRC's domain.
~
l GANE has also conceded that DOE has evaluated the potential cumulative o
] ', _
j effects from the operation of SRP and Vogtle in light of its proposal to restart the L-reactor, and that, if DOE's assessment is correct, "the radiological heallii f*- effects of (the Savannah River Plant) and Vogtle on the populations at risk
. ; M ^_ -,
~
' t 3 s.. are trivial by comparison to background radiation,"" GANE, however, argued
.<3 m below that DOE's draft and final environmental impact statements are flawed
- C
', a< ~
~ - . ~ .:
and that, as a consequence, there is no way to measure any cumulative effects
- a- - - --
from the addition of Vogtle. But the Licensing Board correctly suggested that GANE direct such arguments to DOE, the agency responsible for SRP.n The NRC has no obligation - particularly here in the circumstances of the wholly
~
A ' unrelated Vogtle and SRP facilities - to duplicate DOE's review.32 q . B. GANE's contention 5 challenges the scismic evaluation of the Vogtle plant. More particularly, GANE argues that the applicants have not properly taken into account recent data regarding either the so-called Millett Fault or ~
]j the 1886 Charleston earthquake." After deferring its ruling, in part, pending the receipt of more information, the Board eventually rejected both aspects of I contention 5 for lack of a basis.3' We affirm the Board's rulings.
- 1. Afillett Fault. As the Licensing Board explained, GANE rested its con-tention, in part, on information released in 1982 by the U.S. Geological Survey (USGS) relating to the postulated Millett Fault, about seven miles from the Vog-tle site. Following issuance of that report, the applicants made a further study to determine if the fault exists and found no such evidence within the depths to which its study extended. The applicants .tiso found that, even if a fault ex-isted at a depth below which it investigated, such fault would not be "capable"
- in view of the age of the undisturbed overlying sediments." This information 1 us made available to USGS and, in a 1983 USGS report written by one of l l -
M GAhl's Amended Cetentim 2, statemer'.of w.F. t.a tess Gune 7,1984) at s. H L3P-8435,20 NRC at 914.
-l M See lanrick, A1AB 785. 20 NRC at 874. see else Crewve Corp. v. ICC,781 F.2d 1876,119495 (66 g Cir.1986).
MoANE Bnet at 46. H L3P 8435,20 NRC at 89697; Memorandurn and Order of sepamber 12,1985.
- ,' , U A "capaWe fauh"is a fault that has erbbited me or more of the foCooms daractansucs movernent at or f near the ground surface at least once mtNn $a past 35.000 years or noemerit of a recurnes riature within the
_..- , past 500.000 years; macre sesstrucsty instrumersaUy determmed wvh records of suf6csent precssa to demonstrsie
,' ..; a d.reet relaumskp mth the faah; a struaural relauonship to a cap 4We faah sudi that movernent on one could be
~ i ressmaWy expected to be accomparned by movement m the other. see 10 C.F R. Pars 100 Agenda A, m(g).
, \
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! 135
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f qj; the authors of the earlier document, the hiillett Fault was not included among
! documented faults in the eastern United States.3' Noting that "GANE offered no basis in support of its allegation that the hiillett Pault exists, is capable and
' ' should be considered," the Licensing Board thereafter rejected this portion of
', ' contention 5."
GANE assens that the Board should not have discounted the existence and capability of the hiillett Fault. A licensing board, of course, may not reach the merits of a factual controversy when considering the admissibility of 1
- - contentions." But here, the contention rests squarely on a factual underpinning
_ -l that has been essentially repudiated by its original source (USGS), and the
', intervenor offered no independent information to support its allegation. In Y - ~*
n the circumstances, the Licensing Board acted reasonably in dismissing the
; 4 contention. .
~ . , - L 2. Charleston Earthquale The large earthquake of 1886 at Cha-leston, South Carolina, dominates the seismic analysis for plants in the southeastern United States. In the 1974 proceeding authorizing the construction permit for Vogtle, the Licensing Board noted that the Charleston earthquake (the epicenter of which was 104 miles from Vogtle) produced an intensity at the Vogtle j Site of no greater than VII on-the biodified hiercalli Intensity Scale. Given the consensus view of government agencies at the time that any repetition of a Charleston type earthquake would be confined to the Charleston area,"
-) the Board approved a plant design intended to withstand a recurrence of a Charleston type event." In 1982, however, the USGS clarified somewhat its position on the Charleston earthquake. It continued to acknowledge that there was no evidence to show that regions other than Charleston had experienced strong earthquakes and indicated, funhet, that the probability of strong ground motion due to an earthquake at other castern seaboard locations "may be very low."'t But it observed that "the historical record is not, of itself, sufficient grounds for ruling out the occurrence in these other regions of strong seismic ground motions similar to those experienced near Charleston in 1886."*2 USGS nonetheless reiterated its historic position that seismic engineering parameters a "See Applicants May 7,1984) et 33 35; Tr. Is ' Response a GANE and CPo supp! aments to Poutions rce 144
' ~~ "L3P4635,20 NRC at 896.
"Liaurack. ALAB.545,24 NRC at 23a "See safety Eva'uadon or the Alva W. Vogde Naclear P. ant. Units 1,2,3. and 4 (supp 1. May 1,1974),
Appees II (Lec.er from Duestor. UsGs, to 1. Manning M.antang, thrects or Regulation U.s. Atomic Energy C-mm'n). Joe genersny JoeuA C.areha Oncr* 4 Car Co. (Virgil C. s snmer Nuclear stat cn. Urut 1),13P. l
- 7s.11,6 AEC 213,ilE. 225, moody,4 maJ 474. AtAB.114,6 AEC 153 0973).
"See Georgie po er Ca. (Alvin w. Vogue Nuclear Plant, Uruts I,2,3, and 4),13P.7639,7 AEC s95,914
.k l' f. _
(1974), a5'd, AIAB.375, s NRC 423 0977). 9*'D- ~.
^
~
e'
'INRC staft Response to Licenses Boant Lauer of My 12,1984 Quly 23,1984) (attached lecer (November f~ - t 8.1982) from James F. Devine to NRC).
~ , ~, . >~.,. ,
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e j j be predicated on the assumption ht earthquakes similar to the Charleston event
! would occur only in the vicinity of Charleston, although it recommended that the Commission undertake evaluations of seismic hazard for individual plants.
- Pointing to that USGS clarification, GANE claims that the Licensing Board should have accepted its contention.
g The Board, in fact, initially deferred ruling on this aspect of GANE's con-tention. Instead, it specifically solicited the staff's and other parties' comments . on not only the 1982 USGS position on the Charleston earthquake but also a
~
. more recent report that considered Vogtle specifically, NUREG/CR 3756,"Seis-
, il mic Hazard Characterization of the Eastern United States"(April 1984).*3 With f ~ .. the Board's permission, the staff addressed this matter in its subsequent Safety
" Evaluation Report (SER) for the Vogtle plant." Despite being given the oppor-
*'Q -
- V ,
ttanity to comment on the SER, GANE did not do so.'8
> +- , - s As the Licensiny Board discussed, the SER expressly evaluates the USGS clarification, NUREG/CR-3756, and more recent reports and studies of the
.l
~
. , Charleston carthquake as recommended by USGS. The SER essentially reit-erates, however, the staff position at the construction permit phase, that the a seismic design of Vogtle is adequate in light of existing information ccncerning j the Charleston earthquake.d The applicants' FS AR is to the same effect. GANE does not challenge those analyses. We therefore agree with the Licensing Board
- after its thorough consideration of the matter - that there is no basis for GANE's contention that "new"(i.e.,1982)"data" from the USGS have not been properly assessed.'8 1
III. QUALITY ASSURANCE CONTENTION
~
A significant portion of GANE's appellate brief (and virtually all of its oral argument before es) is devoted to a challenge tn the Licensing Board's summary disposition of the contention dealing with alleged quality assurance deficiencies. GANE and former intervenor CPG tendered identical contentions alleging generally that the applicants had failed to enforce a quality assurance
'3 t2P s4 35,20 NRC at 19697.
"See NUREo-ll37. "safety Etabanon Report Rela:ad to the operaum er the volde E;ecmc Generstr4 P! ant.
Units I and 2"(Jutte 1985)[hemnafar "Jee 1985 sERS
'8 Mancrandum and order or september 12.1985 at 2. s. 1
'8 .L
/ at 4. See Juns 1985 sER st 2 36 to 2 s8. 2-44 to 2-46.
'7 3ee Yogde Fr.st sarery Analyms Report (Amendrners 7. May 1954). Il 2111,2513. 2.5.14. i
.= , as See LBP-84 35.20 NRC at 896 (sta:emas or cornamon 5); Menorandum and Order or sepamNr 12.1985, at
' , i
- 4. We note that in Sow 4 Carolies Electne .4 Car Ca. (Virs:1 C. sumrner Nuclear stataen. Umt 1). AtAB-710,17
.~ ;
NRC 25,2627 0933). =e evaluated h same 1982 Usos posuaos on the 0:adesta earthgaals. We cmebded ) j
< ~
ht it prunded no ground rm recesidenrg the tacenseg Board's pewsous f.ndmgs or adequacy or the seurms
~,f design or that south Carolma platt
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~1 (QA) program (including quality control (QC)) at Vogtle, They pointed to
. ~j violations of Commission regulations, alleged defects in equipment, imposition of a civil penalty against the company, and allegations of drug and alcohol use .
, , q f_ - .'-- Q at the construction site to illustrate what GANE described as "[t]he complete
] failure of the QA/QC program at Vogtle,"80 hey also alleged that "[t]he number of past and continuing failures of the Georgia Power /Bechtel QA/QC program represents a pattern which indicates an undue risk to the health and safety of i the public."$1
- , Notwithstanding the applicants' and the staff's protests (including the claim
'~ that the proffered QA contentions were too vague for meaningful, focused C ._A.~ l- -
litigation), the Licensing Board noted its concern that the maners cited by G ANE
+ .. ~
'y. / i and CPG might have an impact on the operational safety of the plant. He T
- q. ,
., Board thus admitted the contentions but ,lirected the parties to confer about
~ ' more specific wording,52 In due ccv; se, GANE's and CPG's contentions were
-Q 1.
. . , j
- + consolidated, restated, and adr'.;tted, as follows:
. 1 1
, s Aplicants have not and will not implement a quality assurance program for Plant Vogtle for welding, for properly documenting the placement of cmcrete, for adequately testing
-) cmcrete, for the preparation of correct concrete quality test records, for procuring material
, ,.]
7 ard equipment that meet amticable standards, for protecting equipment and for taking corrective action as required, so as to adequately provice for the safe functioning of diverse
, y suuctures, systems and ccenponents, as required by 10 C.F.R. Part 50, Amendit B, such that reasonable assurance exists that operation of the facility will not endanger the public health and safety.85 Hereafter, the applicants tendered a motion for summary disposition, accom-panied by ten affidavits, a statement of assertedly undisputed material facts, and a host of reports, letters, and other information bearing on the issue of quality 4 assurance.5' The NRC staff filed an answer supporting the motion,ss Its filing in-cluded affidavits from staff members with inspection responsibilitics at Vogtle, attesting to the overall effectiveness of the quality assurance program.
g 4
' See CANE supplemers at 16 CPO supplerners to Peute for Leave to latervens and Repest for Heanns
- l II,1984) at 14. see generauy 10 CfA Paa Se, Appendan B (quahty assursace iguuemeus).
'j (ApGANE sapplement at 21.
t si fg ,g g,, 32 LBP4435,20 NRC at 900 02. Sur see DuAs Pe=er Ca. (Ca:s te Nuclear suum,l'nats 1 and 2), AtAB-647,16 NRC 460,46667 (1982), rev'd sa port se e4Aer growdr, C118319,17 NRC 1041 (1983) (condaional adnussa of enterzaons is pedubited).
-
- 831BP-8&49,20 NRC at 1462.
54 Appg ic,ng,, he fcr summary Depesinon of Jars Intervencus' Corserna 1 (Quahty Assurance) Oune 24,
- - , 1915) (heretnaher "sarnmary Duposinoa Moum"1 55NRC staff Response to An>1icants' he fer samraary t>.specucn of Contersaan 8 (August 5,1915)
- 1, _
q [hcre:naner"staff Resgese"}.
- . . .i 1
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A: ., The intervenors opposed the motion but did not present any rebuttal affi-
"l~ ,
, davits." Rather, relying on information earlier submitted, they presented threc
, , _ q principal arguments. First, they claimed that the motion was premature because
- t. .4'
, - ;y the NRC's Advisory Committee on Reactor Safeguards had not yet offered
,3 [ , -
' (, .p. '
gj its views on the Vogtle project, and the intervenors had yet to identify their
< >'~ w. I
, o witnesses or to complete their investigation of alleged quality assurance break-
, V -J downs. ney indicated that they would be prepared to rebut or to impexh the
~' 9
, . Si applicants' case by way of testimony or cross-examination when hearings on 3'
.R the contention were held. Second, they asserted that the applicants had im-
, . 4 h ,. < . ~ ~ , ]~ j , . properly relied on their so-called Readiness Review Program in an effort to
, g: '4 j i U 7i excuse a failure to comply with Commission quality assurance requirements."
gif,. l. f fX y In the intervenors' view, the discovery of quality assurance breakdowns by the
,, ; a l 1{ v 7. p:) Readiness Review Program, in fxt, demonstrated a breakdown in the quality
~ Q J d. x.U 7,.
- m
- +
/ :q assurance program. Third, they alleged that material facts were in issue. In their "l view, the information they had submitted was sufficient to justify further explo-s
, _ . , l ration at a hearing. In this connection, the intervenors made clear that Lt.cy were not suggesting that the quality assurance failures they presented as illustrations 3 ,
- 3. were individually of any concern.ss Instead, they were disturbed over
' i I the patters of problems, not the specinc examples of that pattem. That correction has been or will be performed for the specine exarnples cited by Intervenors is in no way a response
- i to the contention concerning the pattern. ..
'.i The question of whether individual problems have been solved avoids the Intervenors' and I the Board's concern about root causes and generic implications of the QA breakdowns."
l
,l De Licensing Board granted the applicants' motion. As a threshold matter, j it noted that the Advisory Committee on Reactor Safeguards.had recently issued its report on Vogtle (which did G ..ffect the QA issue). Next, it found that the applicants' statement of emdisputed material facts was "correct and complete on the issues."** Re Board indicated that the rifidavits revealed that the quality assurance program met applicable regulatory requirements and functioned in accordance with the intent of the Commission's regulations, ne Board took account of the alleged material facts on which the intervenors relied ;
~. , k l
.9 ! p.' M '
Respmas to Appbcams' Mot % ror summary Duposaaan of Irmervenars' Comerman 8 Quly si,19ss) theranaf.er *1ntervenoes' Reparue").
)
"The Readmess Rmew Prograrn is desenbad in es afMmt of W.C. Ramsey, the peeram manspr. appended
., to se appbcants' mouan for summary d.sposium. It u charactenzed as a "pdos" prograrn desired to "gaan addad j
+ - " assurance of es opersoonal readmess of $s Vcgte" plant summary Dupommon Mouan. Ransey AfMmt at r
,' 3. According to se arsdant. We program is not intended to suwlars se usual quahty assurance program bus 3
, is supposed to irmesse $e samirance est quahty pregram actinues at Piars Yesce have been acccuyhshed in
* . " accadance wim regu'aiory requiremeras." It at 's.
' < 38 trservenors' Respese at s.
- , ,' iT' ,
M /d at 12 (emphasas in orignal).
' ' 'O f '. .. s. _. .
.v _o Memwandam and order of October s.1915, at &
^ ' y s. , s
- G.
'~
. O 139
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'4~ f ' but concluded that the intervenors' presentation, including the promise to provide further information, was insufficient to establish the existence of conflicting
~?.
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I material facts. The Board observed: 3NJ
?^ grb;j ,: . O
.7 ' %
Joint Intervenors offer nothing substantive and specine beyond the discrepent situatims dealt 17 ; . ;7;].p' ;9
$ 'r with by Applicants, whidi they do not controve t; not do they offer anshing specinc and q- .
;f ,
{3 probative in support of their allegation that the [ quality assurance prograrnl is not working.'1 1
- f. '
>*.J The Board also rejected the argument that the Readiness Review Program was
, . 4 7 ,. . '
, ,' L '
simply a substitute for an adequate quality assumnce program. It characterized 'jh E WK y , Y. O
^
d this program as "an overlay to [the quality assurance] effort serving to increase the confidence of management in the operational readiness of [Vogtle]."" N ' N ' J:.7N ' ^' '
'.. W C.. :
"7.g $;.d > Finally, the Board evaluated the "discrepant situaticW identified by intervenors
'/'
and observed that "none . . . has been shown to cany any material safety
.A g.'. r , ,
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* - 7 /. j 4. ,
, . , significance with respect to plant operation not does the totality of them indicate ,
# ' ' f; a pervasive breakdown of Applicants' [ quality assurance program].""'
'Ihe intervenors sought reconsideration of the Board's determination "and/or a J,' O 'l
~
.'~ " '
1 . continuance of the Board's ruling . . . to permit proper affidavits to be prepared in response to Applicant's Motion for Summary Disposition."" ~lhe intervenors d maintained that, contrary to the Board's finding, material facts were present. In
- this connection, they referred to "specific hardware deficiencies" and "undis-covered specific deficiencies to confirm a pervasive breakdown in the QAMC
- progrant."" As to the former, the intervenors adtnowledged that they had not ,
r
.1 5 presented evidence to challenge the applicants' representation that specific de-ficiencies had been corrected; they were unprepared, however, to concede that corrections had been made. As to the leer, the intervenors argued that, "if they were granted time to prepare for heanrg[,] . . . former workers and/or site employees would testify to the pervasive breakdown by demonstrating spe-cific, uncorrected deficiencies."" In this connection, they included as part of their submission an affidavit from the Director of the Environmental Whistle-
' blower Protection Clinic. She asserted that she had been contacted by current
- and former Vogtle employees regarding deficiencies and that "[ilf the Board grants the Motion for Reconsideration all workers who have contacted GAP [the ;
1 1 Government Accountability Project] or the Environmental Whistleblowrr Protec-
- Lion Project will be apprised of thc opportunity to participate in [the] hearings" !
. e7
'4 .
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.1 : 6314 at 9. , , . , / 'd # -k [ $ ..,, < h Y# '
64 CPG,oANE Motion for Reconsiderstion (october 2s.19s5) at 1. y* ,o ,. '
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and "[alffidavits from those who agree to participate will be submitted."" The
- i intervenors also reiterated their earlier assertion that the Board impermissibly
' " relied on evidence about the Readiness Review Program to establish the ap-g .
_ plicants' compliance with the Commission's quality assurance requirements. In
- GANE's view, the Readiness Review Program revealed deficiencies that demon-
, , i. '
5 strated generic problems at Vogtle.88
-q 1he Board denied the request for reconsideration or a continuance." It found
-_ , that the intervenors had presented no rebuttal to the affidavits of the applicants
, and the NRC staff demonstrating that deficiencies had been discovered and resolved, that there had been no breakdown in the quality assurance program,
,, 'g .
a -
- n. -f '-
and that the program was effective. The Commission's regulations and case law,
-c
~
' ". i the Board remarked,"do not allow for successful opposition to the motion (for
[,, l
~
,T summary disposition] on the basis of unsupported allegations or un hopes of
- 3. .a -
what may be developed if one could obtain additional time.'"'
'W "
s We find nothing in GANE's presentation that undermines the Board's de-termination. In reviewing the Board's ruling and GANE's arguments, it is nec-u essary to bear in mind the standard by which quality assurance compliance is to be tested. As we noted in our Callaway opinion: In any project even remotely approaching in magnitude and compleaity the erection of a nuclear power plant, there inevitably will be some constructica defects tied to quality assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC
, _ - cperating license upon a demonstration of error. free construction. Nor is such a result mandated by either the Atomic Energy Act of 1954, as amended, or the Canmission's implementing reguladons. What they require is simply a finding of ressmable assurance that, as buik, the facility can and will be operated without endangenng the p2blic heahh and safety. .
. . iTlhis inquiry necessitates careful considerat;on of whether all ascertained construc-tion errors have been cured. Even if this is established to be the case, however, there may remain a question whether there has been a breakdow1: in quality assurance procedures of suf6ciens dimensicos to raise legitimate doubt as to the overstl integrity of the facility and its safety related structures and components. A demonstration of a perusive failure to carry out the quality assurance program might well stand in the wsy of the requisite safety finding.73 The gist of the intervenors' claim below, and GANE's argument on appeal, is that the cited deficiencies are evidence of a pattern that suggests a high like-
. . lihood that some structure, system or component will eventually fail, and that,
, given a hearing, "whistleblowers" could confirm failings (including uncorrected "Id, Amdant of B,nie Pirner ca.* st 2.
68 14 (Mouen) et 9-la
# Memorandurn and order or December s,1913.
'*ld at 6.
') ' ' i3 Uniaa Elece Ca. (C41!aeay P! ant. Urut 1). ALAB 740, is NRC 343, sa6 (19s3). Su also facdc Car sad
~.
. Elece Co. (Duble Canyon Nuclear Power Piant. Urau I and 2), AIAB.7s6,18 NRC 1s0,1s4s (1913).
_f l3 ;
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- deficiencies) in the Vogtle quality assurance program. But GANE's arguments are unpersuasive,
' In the first place, both the applicants and the staff tendered extensive j affidavits analyzing each of the supposed quality assurance deficiencies cited by the intervenors, and explaining how each had been resolved. GANE did not i attempt to rebut by way of countervailing affidavits the applicants' assertion
- that no material issues were in dispute. Moreover, in its response to the motion for summary disposition, and in its brief on appeal and at oral argument, GANE has not demonstrated that any known construction defects have gone
- unattended. Indeed, it acknowledged at oral argument that it was not attacking i the resolution of discrete errors uncovered during the course of construction."
~
;j We, too, are satisfied that all ascertained construction errors have been properly
- i cured.
j To be sure, as in any project of like magnitude, there were a number of
>. j deficiencies uncovered during the course of construction of the Vogtle plant But, j as noted earlier, the fact that deficiencies occur during the course of construction
~; of a nuclear power plant does not mean that there has been a pervasive failure of
.i the quality assurance program or that the plant is unsafe. At Vogtle, some of the
.] deficiencies noted by the intervenors were uncovered by the applicants during the normal course of their quality assurance review. This constitutes evidence
-l j that the applicants' program was working as intended. Other deficiencies were j uncovered by the NRC staff as part of its inspection responsibility, and notices of violation were issued. The applicants pointed out, however, that they never
, received any violations above Severity Level IV.7) And the NRC staff submitted affidavits from staff employees with inspection responsibilities, indicating that
; the deficiencies were generally of a type to be expected in projects of this j size and did not indicate a pervasive breakdown in quality assurance. Those
- affidavits were unrebutted. GANE even seemed to concede at oral argument that the applicants have "done the big things correctly."" In the circumstances, we l thus conclude that the Licensing Board properly found, from the information submitted, that all material evidence was known and uncontroverted and that no genuine challenge to the efficacy of the applicants' quality assurance program (i.e., no pervasive breakdown or pattern of failures) had been presented.
s M App. Tr.1s. i' U samtr.ary Depocuan Mction at 71. De .WC daides vdauons irso 6ve leveh or severuy. mth severy level I kg the most severe and Lew! Y the least severe. Vdauons at Levels I and Il are consM to be or "very s:std. cant regulatory concern" and tavel m vdata.s are ces.dered of "sis'uf.cara emcen? Level IV vWauons a e Sess senous but more than nunor emeern." and level V vdauens are cortadered to be et "nunor
.! I sled Ugbg Co. (shurcharn Lclear safety s; gnu *.cance? ses 10 C.F A Pan 2. Amer 4x C,Ill ses sise Leat i Pe.er suucrt. ll rut 1). ALAB.758. 20 NRC 1102.114s rL238 (1954). ,
! 7'ses, a g., stan Respmse, Ar'.danu or Edwsid IL omd at s.4. Jcivi k llams and Joscid i J. Imahan at l
. 1214. and Wsrn P. ICear.soras at 24.
j U App. Tr.15 s - 4 I i 1 142 l 1
- l I
.i l 1
l
~ :
g f . We also believe that the Licensing Board was not required to defer the proceeding on the basis of the intervenors' unsupperted promise that some
, potential witnesses might eventually step forward to lend support to their
.j claim of quality assurance lapses. As GANE pointed out at oral argument, it
-! began receiving information from Vogtle workers even before the licensing
{ proceedings began. The intervenors advised the Licensing Board as early as the 1984 prehearing conference that they were receiving allegations about the asserted inadequacy of the quality assurance program from individuals "inside the industry as well as once in a while people on the construction site.""
; Yet, more than a year later, they were unable to document these allegations
~.~
in respease ic the applicants' motion for summary disposition. Indeed, as noted
- ; above, in their request for reconsideration of the Licensing Board's summary disposition ruling, the intervenors stated they could only promise that "(i]f the 1 Board grants the Motion for Reconsideration all workers who have contacted ~
j G AP or the Environmental Whistleblower Protection Project will be apprised of the opportunity to participate in these hearings."7' Although we are sensitive to the difficulties inherent in getting individuals to testify at public hearings about alleged QA problems, we cannot fault the Licensing Board's decision to decline to give intervenors still more time to demonstrate the need for a hearing on their QA contention. The Board simply had no assurance either that witnesses would testify in support of the intervenors' charges, or that their testimony would bc pertinent. Indeed, at oral argument, GANE acknowledged the difficulty it had
.4
+
in obtaining commitments from its potential witnesses. It observed: So I will be very forthright in saying legally. I believe my organimion has failed dramat.
, ically. I mean, the lower board gave us a lot of leeway k.nowing they were wt>rking with i taymen as far as late filings. I believe even the Applicant was sanswhat conscious of the i fact that they were working with pecple who strv not legal experts ard were ostrwhelmed, i I guess would be the point.80 l
! In sum, we affirm the Licensing Board's summary disposition of conten-
] tion 8.
t
App Tr. 61 "Tr. 50.
! 7s CPG,GANE Mouen rce Recmsdera6cn, Af5dava c( B Ae Puner oards at 1
] 7'This is na to say that a pany is precluded from suarpues to "make as case' solely by enns<aarmnauon 3 of as wpones's omnesses But. as the thanseg Board cmenly obsersed. LNs assumes that such party has j successley resuned a mouan toe swnmary deposiuwi - Le. dasputal issues of matecal fact. mNch must be rescdved through beaug. have been defenstrated in the pleadt.gt Memorandum and order of December 3.
1985, at &
^
" App. Tr. 64.
)
j 143 O J
}
f IV. GROUNDWATER CONTAMINATION t i The Vogtle plant sits atop two major aquifers that contribute to public water l supplies in the area." These aquifers are separated from the plant by a 60-foot i layer of dense clay, known as the Elue Bluff Marl (excavation has reduced l the marl thickness to about 38 feet under the auxiliary building). The mari is classified as an aquiclude, i.e., it impedes the flow of uter from the surface i to the two aquifers. In addition, groundwater exists in shallow, discontinuous j bodies referred to as the water table equifer." l GANE was initially concerned that an accident at the plant could result in radioactive water seeping into t'.te aquifers located below the marl and
] contaminating the water supplies. Centention 7, as admitted for litigation, reads:
.I Applicant has not adequately addressed te value of the groundwster below the plant site and
-1t fails to provide adequate assurance that the groundwater will not be ccntaminated as required j by 10 CFA 51.20(a), (b), and (c),10 C.F.R. 5034(aX1), and 10 C.FA 100.10(cX3)." .
f I GANE's appeal, however, cen'.ers more narrowly on the Licensing Board's re-jection of its hypothesis that certain wells and other exploratory holes filled with jl grout (a sealing material) could serve as a pathway for contamination. GAbT argues that "[i]t was indhputably clear in the hearing that the Applicants had provided a route for centamination of the Aquifer by drilling wells through
! the marl beneath the site and into the aquifer." In this connection, GANE at-tacks the Board's refusal to give weight to the judgment of its witness, Williarn i F. Lawless, that settlement of the plant above the mari could adversely affect
, the ability of the grc,uted wells to impede contamination of the aquifers. It also i faults the Board for not relying on Mr. Lawless's testimony regarding suppos-j edly similar contamination at the nearby Savannah River Plant. GAST claims
- that "Mr. Lawless is far more expert in these areas than are the witnesses for i the Applicants or the Staff."u But as we explain below, GANE has provided no
; basis for rejecting the Board's decision.
We first observe, in passing, that our review of this aspect of the appeal has
; been particularly hampered by GANE's failure - once again - to direct our attention to those portions of the record that purportedly support its claim of Board error. Although the hearing lasted four days and covers several hundred i pages of transcript GANE refers us only to "the transcript of the hearings" as
"(2P4628. 24 MtC at 271.
"th4 "t2P-8435. 20 Nt0 at 59s.
'd oAM! Bnar at 7.
"la at s.
! 144 k
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, n the evidentiary predicate for its appeal." As we discussed above in connection with other portions of GANE's brief, the appeal of contention 7 issues could be dismissed for failure to comply with the NRC's Rule of Practice that a brief
.Ww identify"the precise portion of the record relied upon in support of the assertion f s ,
y
~ ~
of error."" Nevertheless, because of the potential significance of the matter if ti - i GANE's generalized claims were
- supported, we have fully reviewed the record, We find no basis for overturning the Licensing Board's ultimate conclusion t - -i that the varioes holes drilled in the marl will not provide a route for contami-nants to the groundwater below As a practical matter, the Board reached this b?
- _1,. . determination in stages. He applicants originally sought summary disposition
" " " ~
of contention 7 in its entirety." In support of that request, they tendered an af-y,
;?.hJ,e, ,,'f,
.; l fidavit from three geologists discussing data obtained from the wells and other exploratory holes drilled through the mari. In rebuttal, the intervenors submitted
. 3; . , .f.' ;
an affidavit that, among other :hings, expressed concern over an apparent lack
'_* .W* * ,
of information dealing with the closure of these exploratory holes." He Li-
.' censing Board found, however, that the closure of the holes was documented in the applicants' affidavit; it indicated, in this regard, that all but three wells had '
been grouted closed in accordance with normal engineering practice." It also
, . determined that the three ungrouted wells present no risk of contamination to the
~
i water supply." Although the intervenors criticized the method for closing the i _d holes," the Board, again relying on the affidavits of the applicants and the staff,
, was satisfied that the technique was adequate." In sum, the Board decided that i no issue of fact existed with respect to possible contamination of the aquifers through the exploratory wells or holes."
Re Board nevertheless declined to grant the motion for summary disposition in its entirety and, instead, set five issues of material fact for evidentiary exploration." In addition, despite having summarily resolved issues dealing with the grouted wells, it permitted inquiry at the hearing into the impxt that settlement of the Vogtle plant might have on the wells - characterizing this a6f g ,, 7,
} "10 CJ.R.1762(d)(1) see apre p.131.
- i # see Ambcams' han for sunnary Dupesium of Jant traarvenon' Cassum 1 (oround. Water) (July is.
19s5) [heranahar "Appbeams' Corsarmen 7 km*k "tasarvanors' Response to Appbcams' hon for sammary Duposauan or Contannon 7 (August 9,19ss) [hereinahatinarwners' August 9 Respmas"), AfEdava or wf. La Lans et s.
"Monmandum and Order of Number 12.19ss, et 2123.
~'
"14 et 21 "traarvoors' Asgust 9 Respmse. Ar6dava of WJ. Law',ess at 6.
"Marnerendum and Order of November 12.19ss at 22.
. **14 at 22 23.
6
,4 7- : .f. ' '
- . ' , tsh h nre (1) h adem d b 3%aWW4 espienum d me Vogtle W2) my
'^ *
* ^ '
in data a mart thickness and permaakhty, Q) data an mart camruaty. (d) 4.nctaon of smundener Bow, and (s)
' . ' gamdestar travel ume.14 et 30.
< 145 9
9 1
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_ l ? , ci as "a collateral issue."" Following the hearing, the Board resolved all issues in
'C ' ' , _j the applicants' favor." It adopted the applicants' estimate of mart permeability s
4 and concluded that there are no voids, fissures, or fractures that would allow
,, _ . - ., radioactive material to penetrate the marl itself and get into the aquifers below."
^
'~
.; The Board specifically found that settlement of the structures above the grouted
' ' ~
~
S. , _'i .- wells could not result in the opening of any flow paths for contaminants through the marl."
- - ,' - GANE does not now challenge the Board's determination that the method of d
; 4 -
grouting assures that the holes are completely filled. Instead, it presses a claim that, if additional settlement of the buildings atop the marl were to occur, certain
- o ,
' - - physical characteristics or properties of the marl and the grouted wells would
. g y 7 s. _ - i;1 J ' J
~
result in "differential motion" that could allow contamination to flow downward
~j ;[ . ..
f-- -' through the marl into the aquifers below.'As Mr. Lawless testified:
, - 7
,** Asnaning the grouted wells under the iVogtlel power block are one complete solid,
'% v- --
s
- I then as the power block settles, those grouted wells directly imder the block will be punched downward at a one-to-one rate, a rate that may be differera ("dtfferential") for the marl Applicants have concluded that the mart is irnpermeable, but have not shown whether l the marl is incompressible, or whether the mart will deform downward at the same rate as
.' the grouted wells. The grouted wells are likely less cernpressible irt a vertical direction than
*j the more elastic marl As these grouted wells settle, driven by the weight of the power block j stop them, they act like spikes. With plastic deformation of the mart, it is possible that the bouom of the grouted wells may separate and core out at the bcatem of the marl If so. the
,{ integrity of the mart would be diminished.I#
- 1 I
t The Board rejected Mr. Lawless's scenario and we find its ruling well.
, founded. Mr. Lawless conceded on cross-examination that he did not know the 1 relative compressive strengths of the grout and the marl and that, absent such knowledge, it was difficult to compare their clastic properties.I" He likewise j t acknowledged that he was unfamiliar with the extent of settlement at the Vogtle
! plant.I" Thus, his testimony postulated an entirely hypothetical situation. In I contrast, the applicants' witness, Thomas W. Crosby, testified that (a) the marl is '
l more rigid than the grout columns, (b) slippage of the grout columns is unlikely
) because of the significant frictional area between the mart and the columns, and
; (c) because of its physical properties, the marl would either resist penetration j
' ~
"LBP.8628,24 NRC at 284-85. l
"/d at 2s6. ]
, ! "/d at 281. Alsouth ths snail would not prosacs the water-tab!s aqmrer faam cetammatacm. the Board also i
.{ fcund eat any rad,osetavity sai saa imo est sqafer would Sow inso Maihes Pond ce the sanruuh Raver and j beccrne dduted, so as to pas no crest to pubbs waist suppbet /Nd oA.YE does not chaueras cat upact of ;
ce Board's dactsien <m appeal j
"/d at 186.
~
l# aelas, t fel Tr. 7:0, at 7 8 (Decenbar is,19s5 submissxml
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,- ,, 181Tr. 747 48.
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- I"Tr. 7a6 47.
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by the groot columns or tend to close any openings that might occur.88 De
~
, : Licensing Board, reviewing all the testimony as well as an e.ffidavit earlier
' _ ~l
> submitted by another of the applicants' experts, Walter R. Fe:ris, concluded that
~
j the grout columns will not move at a rate different from that of the marl, and
.d
"' .~
that there is thus no risk to the integrity of the mar!.*
]
'=- De Board's findings and conclusions rest esser.tially on the testimony and
, , .j other documentation provided by the witnesses for the applicants and the NRC j staff. We cannot agree with GANE either that the applicants' witnesses (whom 51 GANE does not identify) acknowledged that they were not experts,'" or that g, ~
e 3' J;g _ w j 4 the Board improperly rejected hir, Lawless's conflicting testimony. To begin with, the Board relied in part on an affidavit submitted by hit. Ferris
' ~ .r," .
c, - during the prehearing phase of the case, indicating that the applicants had 7 Ncf "I 4 conducted a settlement monitoring program and that settlement had nearly M. ' < fN -? ' ceased. By the time of the hearing, sett!cmcr.t was thus an "undisputed issue.*
.-' , *[, -
hir. Ferris is a civil engineer who is a specialist in soil mechanics.5" GANE
' ' ]: did not challenge his credentials. Furthermore, hit. Ferris's conclusion was
' d endorsed at the hearing by an NRC staff witness
- whose (alifications were
;j similarly not challenged.
He Board also relied on the testimony of hiessrs. Crosby, Clifford R. Farrell,
.]
- and Lewis R. West, who are geologists,* and Dr. Stavros S. Papadopulos, j who is a hydrologist."' hit. Lawless himself characterimi these individuals as q "four reputable scientists.'*" To be sure, hir. Crosby' admitted that he was not 3 an expert on the subject of settlement of structures,"' and Dr. Papadopulos j acknowledged that he was not an expetiin the clastle prooerties of the materials d i in question."3 But the Board clearly relied on hir/ Orosby's testimony to I
ascertain the physical characteristics of the marl ab, the grout matters within his expertise as a geologist - and not to make any findings regarding
~
settlement."' The Board essentially cited Dr. Papadopulos's testimony only as i 18 Tr. 792 94,796. 800-05. lit. The physwal property est oculd seal any openses was vanously referred to in ee record as "elaaucity" and "plaeucuy." Whaber through alama4 or pleeuc deformauen, the wesht of the butideas and cwertymg massal m!! cause any open spece sat vrught develg asound a Srcut cetumn to be Ced
~
gIthe surroundmg marl su LBP 862s. 24 NRC at 215. t2P.8621,24 NRC et 28s.
- Refernr.g to the March I 4. t 985,iseumany, oASi ctaams that"$e minesses admaued ander cross-caammagen
$at Sey had teauSed as mans : in shach eey were act espest" GANI Beef at 7.
N LBP 862s. 24 NRC at 28s n.te. su Appt. cams' Reply to true wners' Response to Applacarss' M:cen ror
, sarrrnary Disposaaen or Corsersaan 7 (september 9,198s). Arndavis ct waher il Ferns ai s.
.l iM /4. EAbit A.
' }
- Tr. 77677.
- ~ -)
- Tr. 250. 251. i neTr. 252.
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, - n2 Tr.794.799,814.
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- ./ ;n "3 Tr. 805.
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- x. added support for Mr. Crosby's expert testimony on the geokigk properties of the marl."5 'Ihus, even if the cited portion of Dr. Papadopolos's testimony m ,
p could be regarded as beyond the strict cor':!nes of hydrology, it was not crucial o -
-h to the Board's decision. We therefore find nothing in the recon! to substantiate OANE's vaguely siticulated doubts about the qualifications of the applicant and s
;- M ; staff wimesses on the subPcts for which their testimony was used.
_i We also believe that thr Board accorded fair treatment to Mr. Lawless and his
._' J
.j views It found him to be ' conversant " but lacking "professional qualifcations,"
9 in the area of groundy. ster hydrology."' Although Mr. Lawless di plainly
~
U} farniliar with the issuet s.vith which OANE is concerned, he candidly i.dmitted in
![ ' that he is neither a gealogist not a hydrologist.* Moreover.3s noted arlier,
;o' ,' , .R' u -
^
he did not know the compressibility > 9f tne rizi or the grout columns or the ['~. '
. _ ] r extent of settlement of the Vogt'e pl.mt."' As a consequence, the Board viewed his testimony as sufficient to raise - but net to resolve -- various questions f
- * ' ~ ' " '
regarding the likelihood that'the physical properties of the marl and the grouted
. ; wells, when affected by the settlement of the buildings, could produce a conduit for contamination."' Relying on the testimony of other more appropriately
.; qualiSed witnesses, the Board proceeded to resolve those questions. It was
,b satis 6ed - and so are we - that the grouted wells will not affect the ability of
.] the marl to serve as a barrier against contamination.
j Contrary to GANE's implied argument, the F,oard's cottlusion is not un. , 1j dermined by an experience at the Savannah River Ph.:. it is c? car that there was l some unanticipated contamination of an aquifer at the SRP, probably through l "discontinuous" areas of de aquiclude there. At the suIdt.ary disposition rhase of the case, the Board gave the matter thorxigh consideration and acknowkdged that it is possible that the unanticipated contamination experierced at SRP could be repeated at Vogtle. But because of the more extensive exploration in the Vog- , tic area, it believed that it was even more likely that discontinuities in the Blue 1 3 Bluff Mart, if diey existed, would be discovered. More import. ant, the Be:rd
'? noted that no purpose would be served in er.unining the relevance of the SRP contamination to Vogtle, given that specine' issues relating to the adequacy of the geological $ydrological exploration, and marl thickness, permeability, and a f a
lN ; , usti es 2ss. k U'll et 270 ,
, 1
"'.Tr. 721.HeMr.
ssa Tr. 719. ser,edtarerlass a tuneisasmarvenly a meran pr@c as nomsms
*sesser 'pdreser at the sevem# of enmhamews Ilner Plas at Psee Co in o orsa Tr. 7210A.N1 enustres the Boari's evehenen or Mr. lawless's enenant As se Board neced, houeur. CANT did ses sutwius j any quahncauens maissent for Me taeless (as isbaanly reemrod rer a minass), so has credeiua:s could
' be ascertamed mly eroish cross.aannurinost t3P-86-24. 24 NLC at 270. la to cuounmances, we find the Board's desmpuan and assessment af Mr.14eless's bodyend ensi pahacanose sessenable. ,
"'Tt. 74651. l
' '~, see Memorandurn and order of Mle.mber 12.198s 6: & .,
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- h: continuity at Vogt were to be litigated in any event.8# The hearing record bears
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j out the Board's conclusion about the relevance of the SRP contamination to
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Vogtle. After extensive consideration of these matters, the Board found that the _
)
6 < j geology and hydrology of the Vogtle site have been idequately explored, and that X 'C , , O. y the Blue Bluff Marl will protect the underlying aguifas from contamination. 21 1 ' ' -j - * - O GANE has failed to attack these findings. in any rneringful way. We therefore agree with the Licensing Board's sum.ury dispostioc of the SRP issue. n V. MOTION TO REOPEN THE RECORD 4 ~...~ : . 1 s
. (- '
s 4 S.1 Corention 10.6 alleged that certain motor cperators muufactured by Lim-
"i ['
,itorque were not qualified against steam spiny as required by thi Commis-
^
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, . /M ]j sbn's environmental qualification regulation.122 In response to this proffered t
', ' _.('
.4 .,
- ,] coniv41on, the applicants nodfied the parties and the Licen bpBoard thtt new
~
'g .and qealifkd w> tor operators had been ordered as replacement."2 Bcth GANE 1
] and CPO egdd to advise the Board whether they still'inten&d to pursue the i
a- -
- j Limi torqie dy,sor operator issue. 2d CPO not;fied the Board that it would not 1
, . pursue the issue, but GANE did rot respond at an. In due course, the Board
' . j.. , Jj t.hu r?jceted AM contention as moot.822 GANFatow atks that this issue ')e re.
1.
, ,f ] opened in view of what it desctR-es as "a h'.storv ef continuing problems."1"
- - f~ j '
in support ot ns request, it refers us to fo.i :nfcirn.mt Notices issued bv the Commission's former Office of Inspection and Enfircement, which it ce as demonstrate problems associated with these compopnts.8" The applican.s nd
-d the NRC str# oppose OANE's request. - !
} To prevail u.T. a request to reopen a record, a moisr3: must show that (1) its ,
r motion is timely (Ahiangh a board may consider in i;nweretion an exceptbnally I grave issue even if n.:t timely presented); (ii) the motion addresses a sid.ifMuTt
. safety or environmental issue; and (i:1) a materially different result wou!d be or 4 1 < ?
) j , e : . . 18 14 at 17 21. i 12 : ' See 12P 42s. 2, Ntc at 27179. ; j 122 3,,e 10 CfJt. 50 4 \
~
" 1. suer fm osarps W. Tmebr4e to Laurie twie Oura M. '954A Ah of WChm C. Amey at 1 32'Jee Tr. 7s.77. l
- 4. , , its L.8P.ses5. 20 Nxc n 90s !
12s oANE d4sr!at 17. l 1"Jee IE Informoden N' Ace Na l!.20 (Mardi 12.1985A horo r ena4 Valve Faaures INe is Hammanns Effect; IE Informanan Nause Na 402 parasary 6.1966L h; are 4 Ws 3 erener her IAnne Esmrarenemal j
' ^
Qua' ire seem Teams, E Informonen Notice No. E03 0anuary 14.190H%emaal DeAamcies si Enwranrnesat i
,, .l . . QualiA<ssu.a of *inutosque Enor Valve Opereur Wanna: IE Intermauen Natus Na E71 (Augue 19.19961 l
; ",q Races 14wnSed hu6tems wuh Imusosque Maiar operstars.
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,X, , j would have been likely had the newly proffered evidence been considered.us l OANE has not satisGed these criteria."'
- s , n- *
. We find that the modon does not raise a signi6 cant safety issue, and that 4
; a different result would not be likely if the information were considered.'" To y begin with, the generic notices rettect only the results of customary, ongoing
^
q suf veillance and do not suggest any significant compromise or safety threat in the f; performance of the motor operators, Indeed, none of the notices imposed new . regulatory requirements or mandated any action or response from any licensee !
, 9 '
or applicant recipient. l'l Nonetheless, the applicants have taken prompt action in response to the notices, An affidavit from Robert M. Bellamy, Plant Suppoft Manager at Vogtle,
" addresses each of the matters raised in the four notices.08 As clarifled by 1*1 . 2 -,
subsequent correspondence from the applicants,"2 that affidavit details their
; ,'" .E
- _ ' -
. j" 'N
, response to each of the notices and explains either how the problems have been corrected or why they are not likely to arise at Vogtle."2 At oral argument, we M - fr> a
. i
" " explored those issues of concern to us."' We are now satisfied that all pertinent
,' ' ', safety matters have been resolved and that no additional evidentiary explomtion
" +
v- is needed.
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~
us 10 C.F.R. 2.73d. see aire finne Jemce Co. */New H.myabre (seabrook statmn. Unsta 1 and 2), AtAB.865, 2s NRC 430,4410987)
. "'The apphcame also clairn that CANE seeks to addrena an issue not pannialy edimned for hugauan ,
and nuast eersfare asuafy the separsie entens fa tenderms cornenuans lata. Applacaras' Bnef at 60. See 10 C.F.R. 2.714(a)0). we agree. Ahhash GANE naes hat es Board ryecud the easmal corsentv% a does acs espressly cha3ege eat n;ecuart Rather, the gut of its arraners a cat the four Information Neuc e - whach a desenbes as "new evidence"- warrare funhet snarmnauan of the usue. Becease me fkid that GANE has not met
$e entena for reopening the record, we need not considst whe6her a cae sausfy as won se entens fa late.81ed casenusta. See genere4 PA1.adelra.e f.esak Co. (tunenn Osaerateg suuon, Unna 1 and 2). AtAB.82s,
- ' 23 NRC is.17 0956h M. A1AB434,23 NRC 263,266 a.10 (1986) uoOsun our determmauan that CANE has faded to meet two of $e three reipenuis entana. we need not decide wheLher $e request is umaly. We note, however, that au far of the nonces en whach GANE now rehen were l avaanble whde earne or a3 of the case esa su2 pesdag before the licenses Boerd; indeed, stuve of $e four 3 nonces were avedable many months before the Board issued im August 1986 perual manal documn. CANE does ,
I na esplam why it waned urnd it Aled its appenate bnet to renee me sneue. Cf. Merepohase Mson Ca. (rksee
.] hm Island Nuclear stenon. L'na No.1), Clits.t. 21 NRC 1111.1114 0945)(absers some Juanacauem for not previply requesteg a reopenmg of ee recoed. seven morah delay is seeking reopenmg aher the recays of informauen rendered request unumely) 31 4 3ee Applicants' Bnef, AfSdava of Robert M. Betamy (S.ovember 14.1986).
U2Lauer fran David R. Lewu to Appeal Board Genuary Is.1987); Lauer from Bruce W. Omrdu3 to Agyeel
; Board 7ebruary 12,1987) ,
i
- u3Fw eaample. Se most ncers emios, IE Informauce Nauce Na 1671, addresses burn darnage to irnernal
,j wines in sewral motor operators at $e Vestle plant N damage was duemered by se appbcaras and repaud I to $e Commissaan's sui N wtree tiarned because of the;r prourrury to heter elenenu The appheams have
_ .g
, .. mspecud the motor opwaters and replaced or repaired damaged eve where necessary. To provers recurrence of l *e problen, the heater elemerta have been diaconnected in all safery.re.a'.ed mance operators. Because the hester
' elemeria were irsended for use durms storage of t.he motor. operated valves, esy are not necessary to the safs uan of es eqwpment e
, q p' App. Tr. 3138,4441. In fact, the appbcaras' February 12.1987.louer pamdes funher clanacau 7' '
remedial acuena ( serra nose 132) was prornpted by questeens we raued at oral argument
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;5 i VI. SUA SPONTE REVIEW
. We have exercised out authority to review sua sponte the entirety of both u Licensing Board partial initial decisions and the underlying record, even as to
] issues where no appeal was taken.D8 We find no errors that call for corrective action - only one matter that nrrants some comment.
- Polymers are used in various applications at nuclear power plants (e.g., in electric cable insulation). Some of these applications have a bearing on safe operation. Over an extended period of time, the molecular structure of a polymer
, can be affected by exposure to radiation, causing the polymer to become brittle or to lose its electrical insulation capability.u* ne Licensing Board originally
{ admitted contention 10.1, dealing with the environmental qualification of certain
, ; polymer materials. Relying on a report from the Sandia National Laboratories,
, 1 this contention alleged that certain safety related equipment at Vogtle contained i polymers that might experience greater degradation from lower dose rates of
! radiation than would be expected based on testing at higher dose rates. (Ris is termed a "dose rate effect.")"' After hearing substantial uncontroverted i testimony on contention 10.1, the Board ultimately concluded that it was without
, merit. Specifically, the Board found that
; polymer materials desdned for use in safety-related (Vogtlel appdicatims have acceptably q passed an adequata envirmmental quali$cadon program. Addidmal assurance as to the adequacy of these polyners will derive from an operadonal sun'eillance program to be implemented by Arplicanu.us Dereafter (on September 18, 1986), the applicants advised both us and the Licensing Board (as well as the parties) of newly discovered information regarding contention 10.1. They pointed out that the polymer that showed
} discernible dose rate effects in the Sandia study is a member of a group of
! polymers designated as XLPO (cross linked polyolefin) and, in particular, is a co-polymer of ethylene and vinyl acetate (EVA). At the hearing before the i Licensing Board, the applicants' witnesses testified that EVA was not used in any 1
safety related equipment at Vogtle. The applicants have now learned, however,
; that XLPO insulation of certain instrumentation cable at Vogtle con:ains a j polymer classified as EVA. Rey state that they will identify which cable is
; affected and will subject it to the surveillance program already established and j required for safety related equipment. ne applicants also express the view that, t
USser omre a<ss s. g D'see guersify ferry. ALAB441,24 NRC at 95.
'2 ut
. .; see LBP s4-s5. 20 NRC at 903.
D8 12P sMs,24 NRC at 29s.
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.h in any event, the Sandia conclusions about dose rate effects do not prevent XLPO insulation from performing its intended electrical function.'"
! GANE did not comment on the applicants' letter, but the NRC staff counsel 1 eventually submitted an affidavit containing the results of the staff's review
, of the information disclosed by the applicants. De staff concluded that the
.information does not change its earlier favorable evaluation of the safety related equipment and corresponding maintenance and surveillance program at Vogtle.2" di GANE does not challenge the Licensing Board's disposition of contention 10.1.I't However, the Licensing Board included in its subsequent concluding j initial decision a condition designed to address the issue raised by the applicants'
, j September 18 letter. The Board stated:
1
.i As a emdition precedent to the issuance of any cperating licenses,it would first have to
, 'l be initially determined by appnyriate authonry that the changed informatim emtained in Applicants'leuer of Septernber 18,1986, pertaining to XtPO insutation that contains vinyl acetate, does not led to a emclusion that is inconsistent with that of this Board m Contention i 10.1.t a2 1
j In ALAB 859, we ruled that the license condition imposed by the Board j in its concluding partial initial decision was not a bar to the issuance of a j low-power operating license because the Board lacked authority to impose the condition. We also announced our intention to review, on the merits, the j
- disposition of contention 10.1 (including the related correspondence subsequent
! to the Licensing Board's decision on the issue), pursuant to our sua sponte j responsibilities.i') We have donc so.
The discovery of EVA at Vogtle raised the question of whether the applicants' l i cable surveillance prograrn remained adequate to detect polymer degradation I before a safety problem might arise. The results of the Sandia study (illustrated in figures attached to applicants' testimony) indicate that EVA exhibits a somew hat greater dose rate effect than the three other polymers tested.'" De cumulative I degradation of EVA, however, is not significantly different from the other
} polymers for the total integrated dose estimated over the 40-year operating life j of Vogtle.2*5 Rus, any severe polymer degradation would not occur overnight, 8 but would develop over several yer.rs. The staff reports that all cable insulated with EVA will be identified and subjected to the applicants' cable surveillance i
I"tacar fnrn Devd R.14ms to oary J. EJks. et at (seriember 18, 1986).
. Idtecer inra Bernard R Borderuck to C. Jean shoernaker Qarmary 14. 1987), Amdavia or Armando
, Mancantaruo (hemnaAer "Mamammuo Arf! davit"1
_, I'lfee oAh*E Bnet at 16. latL3P.86 41,24hILC at 904. See else ad at 928. I'3 s2 N'RC at 27. laa Kachena sa at. fal Tr. s61, Figures 1-4. la$y 152
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i program. In the circumstances, we conclude that the identi6 cation of EVA
- polymer as insulation for certain electric cables at Vogtle is not a significant safety concern. As we have stated in the past, polymer degrndslan is a long-s -
f
- r. m ;- 7
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. M. ;; term issue that can be met by an adequate surveillance program. In particular, relying in part on the same Sandia study, we came to such a conclusion in our
.. , [- cr; -d a consideration of possible polymer degradation during the operating life of the j Perry nuclear pour plant.t -
- =
. s
.]
- LBP 86 28 and LBP-86-41, as modi 6cd by ALAB.859, are affirmed,
'~
f',;, 3JN . It is so ORDERED. l 7,.
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, -. u FOR THE APPEAL BOARD
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C. Jean Shoemaker SeCTelary to the
" Appeal Board s l e
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- fl , _*, ;. , . l"Meaciamama Af5devit at & The staff a'.se smartreed as earber ecceptance of the oppbcarns' cable sentance ;
* ,' - C' ' ewi in Esta of the esemry er EVA palymer at Yo# Ibid i
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Joe feny, ALAB-841,24 Ntc at 9s 97.
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] Cito as 26 NRC 154 (1987)
UNITED STATES OF AMERICA
- .'! HUCLEAR REGULATORY COMMISSION
.l
, J i ATOMIC SAFETY AND LICENSING APPEAL PANEL i
t
' Alan S. Rosenthal, Chairman b
- -
- In the Matter of Docket Nos. 50 275 OLA V '; _
. ~! 50 323-OLA
.. .1
.)4
~
J _w ' < - - ' - , PACIFIC GAS AND ELEC'TRIC COMPANY (Diablo Canyon Nuclear Power i Plant, Units 1 a.id 2) Set,tember 18,1987 i i The Chairman of the Appeal Panel summarily denies, as interlocutory, q
. .; an intervenor's appeal from a Licensing Board's order rejecting a late filed contention of the intervenor in this operating license amendment proceeding.
RULES OF PRACTICE: INTERLOCUTORY APPEALS i 10 C.F.R. 2.714a permits an interlocutory appeal from an order rejecting one or more contentions at the threshold only if the effect of the rejection is to deny in its entirety a petition for leave to intervene in the proceeding.
.s APPEARANCES i
Marcia Preston, San Francisco. California, for the intervenor Sierra Club. i MEMORANDUM AND ORDER I 'Ihis is a proceeding on the application of the Paci6c Oas and Electric Company for amendments to the outstanding operating licenses for its Diablo
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'4 Canyon nuclear facility. De requested amendments would enable the applicant .
a> - ' + to increase the storage capacity of the facility's spent fuel pools.
- c. . ,
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~
While the proceeding was still pending before the Licensing Board, the t 1 intervenor Sierra Club sought the admission of an additional contention. In
') an interlocutory order entered on September 2, 1987,8 the Board denied that
, . '~j relief. The Sierra Club now seeks to appeal that order under 10 C.F.R. 2.7143.
a 3 The appeal will not lie. In terms, section 2.714a permits an interlocutory j appeal from an order rejceting one or more contentions at the threshold only g if the effect of the rejection is to deny in its entirety a petition for leave to
- - intervene in the proceeding.2 In this instance, the September 2 order patently l- '
-J
~ # l[ --l had no such effect.
c * - P -
! This does not mean, however, that the Sierra Club has no appellate remedy l
' 'fs ~ ' '; s J available to it. On September i1,1987, the Licensing Board rendered its initial c.;
- o. I decision in the proceeding, auttorizing the issuance of the requested operating
~
~ - c- -
license amendments.8 That decision is subject to an appeal as a matter of right under 10 C.F.R. 2.762(a). On any such appeal, the Sierra Club may challenge, [
~
]1 es if it is so inclined, the rejection o5' the contention in question.'
d Appeal dismissed. I It is so ORDERED.
~
l .
.l FOR THE APPEAL PANEL
! CHAIRMAN 7
i
; Eleanor E. Hagins Secretary to the Appeal Panel i This action was taken by the Appeal Panel Chairman under the authority of 10 C.F.R. 2.787(b).
\
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, Isee 12P-87 24,26 MtC 159.
{ Isse, e s Tease t/nAnas Genere*at Ca. (Comande Peak smen Esctne Sunan. Unas t md 2k AtAB.599 '
~ ',' . .
t2 Mtc I (1990) and cases ihm cued.
',' ~
4 Isee tap.87 25,26 NRC 168. l
' ;- . 'see AIAB 599, aves.12 NitC at 2 al.
bn . . 2 - . l 155 I
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,4 s ALAB 874
^
. Cite as 26 NRC 156 (1987) t UNITED STATES OF AMERICA t
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD .
Administrative Judges: Alan S. Rosenthal, Chairman Dr. W. Reed Johnson
~
s l' -
~
Howard A.Wilber in the Matter of Docket Nos. 50-456-OL
' 50-457 OL COMMONWEALTH EDISON COMPANY (Braidwood Nuciear Power Station, i Units 1 and 2) September 25,1987 l
t i r " The Appeal Board dismisses, on ground of mootness, intervmors' appeal from the Licensing Board's reaffirmance of its earlier denial of a late filed contention and vacates both Licensing Board orders reflecting that rejection. 4 i RULES OF PRACTICE: DISMISSAL OF APPEAL (MOOTNESS) Where an a; peal from a licensing board order is dismissed on the ground that the controversy underlying the order has become moot, it is established practice { to vacate the licensing board order. See e.g., Boston Edison Co. (Ptigrim Nuclear Powtr Station, Unit 2), ALAB-656,14 NRC %5 (1981); Rochester Gas and : l Electric Corp. (Sterling Power Project Nuclear Unit No.1), ALAB 596,11 NRC
, 867 (1980).
'i !
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..y 156 l
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. APPEARANCES K _. '[ . Douglass W. Cassel, Jr., Chicago, Illinois, for the intervenors Bridget Little qe J-
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,,a o- s:' 1 Joseph Gallo, Washington, D.C., for the applicant Commonwealth Edison
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, : j Elaine I. Chan for the Nuclear Regulatory Commission staff.
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MEMORANDUM AND ORDER
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, ;7 w'f ,.cyfp . ' ,., y ,, .:. ' 3., [ Pending before us is an appeal by the intervenors Bridget Little Rorem, tv 7 - et al. from a July 6,1987 Licensing Board memorandum and order in this 2 -
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operating license proceeding involving the Commonwealth Edison Company's 1 ; -% - Braidwood nuclear facility in Illinois.8 In that memorandum and order, the Board 4 4 . s reaffirmed its earlier denial of the intervenors' May 6,1987 motion to 61e a late contention addressed to the financial quali6 cations of potential new owners of the m fxility.I The motion had been triggered by the intervenors' understanding that Commonwealth Edison intended to apply for an amendment to, inter alia, the ! l operating license for Unit 1 of the facility to reflect a new ownership arrangement proposed by that utility. Such an application was thereaner filed on my 28.3 In noting their appeal, the intervenors called attention to the fact that, on July 16,1987, the Illinois Commerce Commission rejected the Commonwealth Edi-
, son proposal before it to restructure the ownership of Braidwood. This same de.
velopment was mentioned in a July 30,1987 letter from Commonwealth Edison ; to the Director of the NRC's Of6ce of Nuclear Reactor Regulation, which letter
, , went on to announce the utility's "desire to withdraw the outstanding amend- !
I ment application.' The July 30 communication was followed by a September 8 ! v I
' Joe I.aP-87 22. 24 h1C 41. &
8 s - 3ee LAP 8719,25 h1C 9so (1987). 3 ! As mospuaed by the ismerveness in a seced snesien sind by dien en My 1 and daued in 12P-47 22. escogeance !
, - er cie tese ~ n would how -'aa J seapenas er the evidemory senesd. M sessed had cleese in h !946. As a (
r- is was pasable for die IJemang seesd is isome its eenchwhne penial trunal i densam en May it,1987. LAP s7 Id. 23 NBC 441. h dennen enhensed die issumace or eyereeng licanes {
.j far bosh amis er Gio arandweed fecihty. Ahhaugh des ismerwmeet have a pendang oppost best die dension, no j j -[, ,
any orins edfessivumas was seushr. Aecesdangly, an apareeng bemos for tlma i han ineaed. Fw hs part. Unit 2
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$$e b r:M s.C. M 10 D. danes I Murley, pewrided to a es em is baih eis SE staff's
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i n"r.- to Appent somed osder d My 21,1987 (My 31,1997) and Commeneeshh Edise's Respanes to
-' Rapset far Derer,el er Pwther AppeGene Plessedangs Guly 31.1967).
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_i, . letter in v.hich Commonwealth Edison stated without quali6 cation that it was
. 'i withdrawing the ametidment application.8
', ! In light of this representation, it is manifest that the controversy with regard ;
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;d l to the intervenors' late filed contention is now moot Thus, we adopt Com- l monwealth Edison's suggestion that the intervenors' appeal from the Licensing s .
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j Board's rejection of the contention be dismissed on that ground,' In accordance ,
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i with established practice in such circumstances,7 we also must vacate both Li. i
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] - censing Board orders teAceting that rejection.'
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Appeal dismissed on the ground of moolness; LBP 8719 and LBP 87 w2cated for the same reason.
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,.. I ? ,, _ ~ 'f It is so ORDERED,
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- .'-s.- FOR THE APPEAL BOARD
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- j-C. Jean Shoemaker
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' 83ee lager owe s C. IIJueder W Dom 48 E Ndey, ordoned WMb @W sepumber 14,1997 leGet OCm NRC natr counsel EWne L Chaa to the members et tras Baert
'See Response to traervenoss' Reg est for Deferral d Anhar Appecew Procendres (kly 31,1987) at 2.
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- j 7 See, a g., Sornes Edsee Co. (PCywn Nucles: Power sution. Una ?). ALAB 656,14 NRC 965 (198!); AeeAssic ,
I Ces W fleche Cap. (siertant Power Project Nuclear Una Na 1). AIAB-596,11 NRC 867 n9401
' As eartaer noted, tPs July 6 order (L3P-87 22) resf$rmed the rejectan d $e carmentaca in me hne 10 order (12P 8719) 4 ,
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- Atomic Safety .
and L.icensing l ! Boards issuances l l ATOMIC SAFETY AND LICENSING BOARD PANEL i B. Paul Cotter,
- Chairman 3
Robert M. Lazo, 'Vice Chairman (Executive) Frederick J. Shon, 'Vice Chairman (Technicall I J Members e l Dr. George C. Anderson Hertert Grossman* Dr. Ernmeth A. Luebke' Charies Bechhefer* Dr. Cadet H. Hand, Jr. Dr. Kenneth A. McColiom j Peter B. Bloch' Jerry Harbour' Morton B. Margabes* l Genn O Brght' Dr. Dand L. Hetr<k Gary L. MJholkn I Marshall E. Maler i Dr. A. D-mon Cau,han Emest E. Ndl James H. Carpenter
- Dr. Frank F. Hooper Dr. Peter A. Morris' Hugh K. Clark Helen F. Hog
- Dr. Oscar H. Pans
- 4 Dr. R. chard F. Cole' El.zabeth B. Johnson Dr. Dand R. Schenk 1
Dr. M,chael A. Duggan Dr. WaMer H. Jordan Ivan W. Smith' l Dr. George A. Ferguson James L. Keney* Dr. Martin J. Steind!=r i Dr. Harry Foreman Jery R Khne' Dr. Quentin J. Stober R, chard F. Foster Dr. James C. Lamb til Seymour Wenner I l John H Frye lii' Gustave A. Lbenberger' Sheldon J. Wotfe' l James P. Geason Dr. Lsda W. Little i l l i i l i 4 i j l
- Permanent panel members l
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< 1 Cite as 26 NRC 159 (1987) LBP-87 24
. UNITED STATES OF AMERIC A NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
-7 B. Paul Cotter, Jr., Chairman
~
Glenn O. Bright li Dr. Jerry Harbour , In the Matter of Docket Nos. 50 275 OLA 50 323 OLA (ASLBP No. 86 523 03 LA) PACIFIC GAS AND ELECTRIC I COMPANY l (Diablo Canyon Nuclese Power Plant, Units 1 and 2) September 2,1987 j l In this Memorandum and Order, the 1.icensing Board denies admission of a contention concerning the consequences of a loss of coolant in the spent fuel pools at Diablo Canyon Units 1 and 2, 6nding that intervenor had failed to ; dernonstrate a nexus between the ger,eric study it relied upon and the high-j density teracking of the Diablo Canyon spent fuel pools. I ADMISSIBILITY OF CONTENTIONS: GENERIC ISSUES If an issue sought to be introduced is a generic issue (i.e., involving a subject of general applicability to all reactors, a nexus must be established between the ; generic issue and the license application in question. The party may not simply , point to a newly issued Regulatory Guide or a report on the subject. l
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l GENERIC ISSUES
< Generally, a generic safety issue does not describe a regulatory requirement j that a license applicant must satisfy unless and until the generic issue is reduced
'I to a regulation in Title 10 of the Code of Federal Regulations.
ADMISSIBILITY OF CONTENTIONS: BEYOND. DESIGN. BASIS
~l ACCIDENT A contention based on a hypothesized event beyond the design basis of the i'
plant is not admissible because the National Environmental Policy Act does not
' i require that such an Ecident be considered.
1 c ; MEMORANDUM AND ORDER (Ruling on Motion to Admit Contention) 1 i On June 16, 1987, at the outset of the hearing on the remaining issues in this proceeding concerning Pxific Gas and Electric Company's application to l expand the spent fuel pools for its Diablo Canyon Units I and 2, Intervenor Sierra i Club moved to admit a contention concerning the consequences of a possible
- loss of coolant in the pools and asked the Board to direct the Staff to prepare an environmental impact statement (EIS). Both the Applicant Pacific Gas and
; Electric Company, and the Nuclear Regulatory Commission Staff ("the Staff")
j opposed the motion, and all parties briefed the issue in filings completed on i August 14,1987. In this decision, we find that the contention is not admissible. I Applicant has applied for a license to rerack the Diablo Canpn spent fuel
- pools in a high-density configuration that would increase the number of rack storage locations from 270 to 1324 for each unit. 51 Fed. Reg.1451 (1986). The Sierra Club now asks the Board to direct the Staff to prepare "an Environmental
' Impact Statement concerning the possibility of and impact of Zircalloy cladding fires at the Diablo Canyon facility" and moves the admission of the fol(owing I contention:
t De pecposed action signi6cantly increases the consequences d loss of cooling accidents in , f that a loss of mater in the spent fuel pcds coukilead to spcmtanems ignition ct arcalloy
; clailms of the fuel eternents in the high density configuration with signi6 cant releases of i ts&aticut.
. . , Motion to include issues Raised in Generic Issue 82 as Contentions in This '
Procceding and to Direct Preparation of an Environmental Impact Statement.The basis for the contention proffered is a January 1987 draft report issued by
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3 ' ' (;, Brookhaven Nadonal Laboratory entided "Bepnd Design Basis Accidents
]'~ - .i in Spent INel Pools (Generic Issue 82)" ("the BNL Report").1 Sierra Club ,
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, Exh 1. The parties were noti 6ed of the existence of the BNL Report by a
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"" March 27,1987 Board Notificadon from the Staff containing a statement that
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3._ D the report did cot pertain directly to then. active licensing proceedings. 4
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.j The Sierra Club asserts that two of the' report's four authors specifically
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recommend in an appendix against storing spent fuel as proposed for Diablo d.1 Canyon. Tr.148-49; BNL Report, Appendix B at 3. Sierra Club argues that no .
.f n _ . mention has been made of the potential for fuel cladding 6res heretofore and
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1 charges that the disclaimer statement in the Board Noti 6 cation was false and
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- . . , j7 7 '5( Sierra Club further argues that its proposed contention relates indirectly to, or
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'" ['li ' 9 5 a,j.; is subsumed under, contentions already in the case, and that had it been aware
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of the contents of the report it would have offered the contention at issue here m P^ 1 earlier, Alternatiyely, Sierra Club addresses the 6ve factors governing admission _ ^j T _. of late-filed contentions under 10 C.F.R. 6 2.714 (1987). Finally, Sierra Club
, e 'r a argues that language in San Luis Obispo Mothersfor Peace v. NRC,799 F.2d
, - '9 1268 (9th Cir.1986), supports admission of the contention and preparation of l _ ! '
l4 an EIS. That decision held that the Commission had violated its own regulations
, .. when the Commission found no significant hazards considerations in the rerack j; j work and authorized Applicant to proceed with the rerack before hearing. The j Court did not reach the National Environmental Policy Act argument presented, I but stated in dicta that:
t
. 'I %%h respect to pendmers' NEPA claims, however, we note that the site specinc envirm. <
l mental assessmait =as based on a seven year old genenc environmenial assessment and that I no worst case analysis,40 CF.R. I1502.22, appears to have been condocted. We strongly i X, ' ~ suggest that any doubt concerning the need to supplement the NEPA dociaments be resolved > in favor d addinonal documentadon.'
/d. at 1271,8 ~
i - Applicant opposes the motion on two grounds. First, the proposed contention i j'. does not succeed in raising a signi6 cant safety issue because: (1) the contention ' is based on a draft generic report not directly related to the Diablo Canyon plants; and (2) the Sierra Club has not shown the necessary nexus between that sl - ' 1- N I y ., The faal repet, NtlREoct4982, "severs Accideus a spent F.el Poals in suppan or Genene sarsty Issue l I t I 8T Ouly 1987) was sent to se Based on August "ls,1987. Fw the purnases er dus denman,iM anal repan does
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. not AEer sipuncandy rnra the drah report j y.,d# .-* ,
8 we m unswe u to whai the Court mani in verwnes to ru can malys , ha aca me rarnance noi i A.] germane to the decman hee. Ilowever, we nets that the Corrunisaat's staterness or Canadersnei in insang 10 i
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j , . . _' ; CF.R. Part 51 mated that the Cemnusmen is not kaand by the CEQ "worst case analyss" requarenes and would
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,; >, !"f ,, todow its own pdacy in that regard. 49 Fed. Reg 9352,9356 (1964), see she "Nuclear Power P! ant Acciders
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7: , Consdersnons t;nder the National Enviranrnemal Pohey Act or 1969,* 45 Fed Re6 a0.101 14 09401 3 y: :;y . .
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. Li report and the D!ablo Canyon spent fuel pools. Second, the contention is filed j late and does not satisfy the requirements for a late filed contention set out in .. . ,
_ i 10 C.F.R. 52.714. Supplemental Answer in Opposition to Intervenor's Motion i to Admit Late Filed Contention. In response to this Board's query, Applicant j. argues further that a recent case, Vermont Yankee Nuclear Power Corp. (Vermont
' Yankee Nuc! car Power Station), ALAB-869, 26 NRC 13 (1987), bars the
, j' admission of the contention, because, as in Vermont Yankee, the contention assumes an accident scenano that is beyond design basis. Applicant asserts that because such accidents are remote and speculative events, the National 74
< '2 j
Environmenta! Policy Act of 1969,42 U.S.C. 9 4321 (1982), does not require
' the NRC to consider them. Applicant concludes that the Vermont Yankee case
_ 1
' is directly on point.
The Staff also opposes the motion, in the first instance as unrelated to any
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% issue in the proceeding and therefore not subsumed under an admitted con.
tention Staff asserts that no admitted contention addresses spent fuel pool fail-
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j ure, as the proposed contention must assume, and that the proposed contention
. 4 goes far beyond any environmental issues in the proceeding. Next. Staff argues jl that the contention is late filed and does not satisfy the $ 2.714 criteria for ad-1 mission to the proceeding. Staff addresses each of the factors in $2.714(a)(1) and concludes that the Sierra Club has failed to meet that five-pronged test for i
lj admitting the contention. Finally, Staff argues that the contention is not litigs-8 ble because: (1) the report is generic and not directly applicable to the Diablo
.I Canyon plant; and (2) Sierra Club has shown no nexus to connect the generic report to the plant at issue. Like Applicant Staff also fmds the Vermont Yankee l
4 case controlling and a bar to admitting the contention.
- APPLICABLE LAW Section 2.714 of Title 10 of the Code of Federal Regulations governs the admission of contentions to our proceedings. It requires that intervencrs must
; state "the bases for each contention set forth with reasonable specificity." 10 C.F.R. 5 2.714(b) (1986). The basis and specificit',' referred to means that the contention must establish that it applies to the facil.ty at issue and warrants fur-ther exploration. A contention may not attack appli able statutory requirements,
' nor may it challenge "the basic structure of the C(mmission's regulatory proc.
i
; ess." Philadelphia Elterrie Co. (Peach Bottom A omic Power Station, Units 2 and 3), ALAB 216,8 AEC 13,20-21 (1974). If t!v, issue sought to be introduced l
j is, as here, a generic issue (e.g., involving a sutject of general applicability to 4 all reactors), a nexus must be established to rennect the generic issue to the
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- license application in question. Gulf States Utilities Co. (River Bend Station,
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[h '!! Units 1 and 2), ALAB-444,6 NRC 760 (1977). De party may not simply point
<- to a newly issued Regulatory Guide or a report on the subject. Id. at 772.
In the normal course, contentions are to be 6 led early in the proceeding (10
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- f. C.F.R.12.714(b)) unless, later alia, based on newly discovered evidence. A
' , - i contention not filed at the outset of the proceeding is usually termed a "late. filed
' ]4 contention," and its admission is subject to the requirements of 62.714(aXI).
Subsection (a)(1) requires the balancing of considerations including, Inter alla,
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good cause for failure to file on time, other means to protect the intervenor's - interest, assistance in developing a sound record, and whether the proceeding , will be broadened or delayed, n s W .
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o [+ n ANALYSIS
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.s 1 As noted, the threshold requirement for the admission of a contention to the proceeding is basis specifically stated. Sierra Club offers the BNL Report as the basis for the contention that a loss of coolant will cause a fuel rod cladding fire
, in the Diablo Canyon spent fuel pools.
~ ,
- The BNL Repert was prepared under contract with the Nuclear Regulatory Commission as a part of its research and development effort to resolve what
,1 has become know n as Generic Issue 82. Generally, generic issues are safety concerns that havs not yet been resolved by the Commission. They are the 7 objects of an ongoing program of study to quantify and qualify the risk they j may present, if any to the public health and safety. Generally a generic safety issue does not desen'be a regulatory requirement that a license applicant must satisfy unless and untJ the generic issue is reduced to a regulation in Title 10 of the Code of Federal Regulations. Generic issue 82 was established as an '
unresolved safety issue w3h medium priority in November 1983. Sierra Club Exh. I at S 1, Generic Issue 82 is, in essence, an assessment of overall risk due to beyond-design basis accidents involving spent fuel pool facilities through the performance of a probabilistic risk assessment. See, generally, the BNL Report. Work on various aspects of the safety of spent fuel pool storage dates back many years. For example, the BNL Report refers to studies of r.irconium ih 1955 and to a Sandia National Laboratories study in 1979 titled "Spent Fuel Heatup Following Loss of Water During Storage'* (NUREG/CR-0649, March 1979). BNL Report, Summary, nn.1 & 5; i1.7, ref. 3. The BNL Report is but the latest in this ongoing series of studies. The January 1987 revised draft of the BNL Report contains a number of
' ); caveats. The Abstract states in pertinent part that
., These estimated risks (of heahh ccesequences) are comparable to the enimated risk posed f
7 , , ); by severe core damage accidenu and appear to marraar furtAer attentios. However, she I l
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- i s uncertaiNy in skis estkste is large (greater IMn a factor of M) and pkN specfc features j my eknge the results consarably. Prevenuve and mitisative measures hm been evaluated quahtatistly. It is suggested that l
-1 for pkMs with simikr rbk poteMial to the two surrepte plaus, the cce messure which is i tacly to be effective in reducing risk is utdization cilow density stcrise racks for recently 1 discharsed fuel. Homewr, before such prensiw measures are implemesed a comlete plant specy\c risk assessmenfor pool related accLiens should be performed inclusi.ng a structuredfragil4 analysis of the poolicoff ,
i BNL Report at til (emphasis added). In estimating the risks in its report, BNL
'I selected "two older vintage plants" to serve as surrogates, hiillstone 1 (BWR) s } and Ginna (PWR). BNL Report, Appendix A.
Sierra Club contends that "two of the authors specifically recommend against l
-j the storage of spent fuel in the manner proposed for Diablo Canyon." Sierra
-i Club hiotion: Sierra Club Exh.1, Appendix B. Appendix B is an internal Brookhaven memorandum titled "! npact of Revised Rextion Rate Equation on 3
the Likelihood of Zirconium Fires in a drained Spent Fuel Pool (Task S)." ne i memorandum concludes that a computer formula, or code, developed by Sandia National Laboratories for representing self-sustained oxidation in a drati.ed spent l i fuel pool is accurate and that the conditional probability for a self sustaining
~j cladding fire is in the broad range of 16% to 100%. He memorandum's authors then recommend, inter alia, that spent fuel not be stored in high.
j density configuration until it has been stored for 2 or more years in the old style, i low-density configuration. De memorandum, as an appendix, is a supporting j document, partially incorporate ! in the BNL Report itself and subject to all its t caveats, Despite the surface appeara)ce of relationship between the generic BNL Report and the Diablo Canyon spent fuel pools, we nnd that the contention proffered lacks a nexus with the M1. Report and thus lacks basis for admission i to the proceeding. He Sierra Club loints to the following facts: (1) the subject 1 of the report is spent fuel pool accients; (2) the report uses a pressurized water reactor (PWR), Ginna, as a model 10r some of the parameters in the study and the Diablo Canyon units are both PWRs, and (3) the report concludes that a signi6 cant preventive measure to reduce risk would be to use low-density l storage racks rather than the high density racks that are the subject of the instant i proceedings.
*l However, the Sierra Club's proposed contention assumes a total loss of
. coolant in the Diablo Canyon spent fuel pools without specifying any accident l
' scenario that would cause that loss, In contrast, the BNL Report postulates at !
- j least four accident initiating events for Ginna that could cause coolant loss,
. - including loss of water-circulating capability, structural failure of the pool, and
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cavity seal failures. BNL Report, Chapter 2. He BNL Report also notes that, 164 l i e
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s -' , T while there have been incidents, "there is no case on record of a significant loss of water inventory from a domestic, commercial spent fuel pool." BNL Report, i S.I.2 at S-2. The Sierra Club suggests no mechanism or event that could cause i a loss-of coolant xcident at the Diablo Canyon spent fuel pools. BNL Report I at 21 to 217. 1 Secondly, the BNL Report used as a surrogate for pressurized water reactors I ("PWRs") the Ginna textor, a 470-megawatt (r.lectrical) ("MWe") unit built in
! 1%9. In contrast, the Diablo Canyon units are built to a d(/ferent scale. They j are much larger reactors generating 1086 MWe, were completed 15 yean after i Ginns in 1984, and were built to much stricter seismic safety criteria. In addition j to the substantial differences among individual textors in the United States and I these two textors in particular, the technological refinements during that 15-year period were substantial, with particular focus on rnw safety requirements following the Three Mile Island event in 1979. Bes>nd the very general o observation that they are both PWRs, the Sierra Club offers no comparisons or
] data of any kind to suggest any similarities between the two reactors, particularly their spent fuel pools. Consequently, there is no link shown between the very i
! generic conclusions drawn in the BNL Report from the theoretical, computer model based on the older Ginna rextor and the hig density retxking proposed for Diablo Canyon. In fxt, the report warns against drawing specific conclusions
- as to individual rextors throughout its length. Compare BNL Report at lii
! (Abstrxt); S 2 (no case on record of loss of water inventory); S 3 ("the analyses j are greatly simplified"); S 6 ("risk results are calculated for two surrogate plants
; and may not be applicable to generic pool types"); l 5 ("[t]he configurations j of spent fuel storuge pools vary from plant to plant"); 313 (unvalidated natural convection calculation); 5 2 (uncertainty of exposure risk due to uncertainty
{ in the likelihood of complete draining of the spent fuel pool, estimated to be an order of magnitude in either direction); and 6 3 ("plant specific evaluations should be performed before any changes are implemented at a given plant").
, Given these caveats, the very broad based recommendations and conclusions j in the report, the lack of any evidence or reasoning to connect a generic report with the specific configuration at Diablo Canyon, and the absence of any suggestion of an accident initiator, we can find no nexus by which the contention
! might establish a specifically stated basis. Therefore, we must conclude that the contention proffered lacks the requisite basis and may not be admitted to this proceeding under 10 C.F.R. 6 2.714. River Bend, supra.
Nor can we find that the contention lies within the penumbra of contentions already admiued to this proceeding. The Sierra Club refers to a contention I rejected at the outset of the proceeding concerning "effects of the possible loss
.j of cooling capacity on the spent fuel assemblies" and asserts that the BNL Report now furnishes the specificity found lxking at that time. See LBP 86-
.{, 21,23 NRC S49,861-64 (1986). We have already found, above, that the BNL 165
, 3 :
t 1 i Report, standing alone, fails to supply the necessary basis and specificity, and we note further that the BNL Report is predicated on the complete loss of all i coolant In the spentfuel pool, not merely the loss of some indeterminate "cooling l capxity." De BNL Report therefore does not supply the basis necessary to resurrect the contention rejected. Id. at 863. i Sierra Club's bald assertion that the proposed contention falls within a con-tention dealing with alternatives to the reracking proposal and structural tailures during the postulated Hosgri earthquake is simply incorrect. Rose contention li 2 bases were subsumed within Sierra Club's Contention !!(A) which deals with
! the possibility of damage to the racks within the pool. Id. 864 65. There is no d contention in this proceeding dealing with the loss of coolant from the spent fuct 3 '
pools. The remainder of Sierra Club's argument is tautological. It assumes the l
-
- j loss of all coolant leading to a spent fuel rod cladding fire and its consequences.
- f ].! without suggesting how such a fire might occur, and then concludes that such a fire must be considered as an issue in this proceeding. Absent some scenario I describing how the coolant loss might occur, there is no basis for this Board to
' ' assume that it will and thus no grounds for admitting any such contention. Finally, we note that even if the Sierra Club had postulated an acceptable I causative event, the contention, by its terms, is based on a hypothesized event , that would be beyond the design basis of the plant. In the Vermont Yankee case, ALAB 869, supra, the admission of a contention in a spent fuel pool proceeding
.}
i was reversed. Intervenors there alleged that a credible xcident scenario would substantially increase the risk to the public health and safety, and, consequently, the license amendment sought amounted to a major federal action that required the Staff to issue an environmental impxt statement ("EIS"). The scenario postulated was clearly a beyond design-basis xcident, and the Licensing Board found that no EIS had ever been required for a spent fuel pool licensing proceeding. Id.,26 NRC at 28 29. j The Appeal Board rejected the contention on two grounds. First, it held
> as a matter of law that the scenario proposed was a severe, beyond-design.
basis accident not required to be cortsidered by the National Environmental Policy Act, citing San Luis Obispo Mothers for Peace v. NRC,751 F.2d 1287
. (D.C. Cir.1934), aff'd en bane,789 F.2d 26 (1986), cert, denied _ U.S. -
107 S. CL 330 (19S6). Vermont Yankee,26 NRC at 30. Secondly, the case held that the Nuclear Regulatory Commission's Interim Policy on "Nuclear Power Plant Accident Considerations Under the National Environmenta! Policy Act of i i 1969," 45 Fed. Reg. 40,101 (1980) ("the NEPA Policy Statement") does not apply to spent fWl pool proceedings by its terms. The Appeal Board stated: j
- Thus, before the NEPA Policy Statemera is even invded, she's must be scene basis fcv requirms an EIS oAer Aas a claim of increased risk frcan a beyond desisn basis acciders scenar* In ccurset, irse rstnors' claim here is just that: Lt., the prmceed acta (expansion 9
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, d on spens f I poot) .Q1 signi6 candy affas on envimnmm, dwnby mquinns an EIS.
l kew, y de ri As of du bem hiisa.wsis acciens scenario they have himter ,
~ Vermont Yankee, 26 NRC at 31 (emphasis in original). The Sierra Club's
^ -1 position is even weaker than the intervenor's in the Vermont YanAct proceeding
- 4 1 because the Sierra Club has failed to describe any kind of accident scenario ~ ;
a ! whauoever. The lack of any nexus between the generic BNL Report and the ! high-density reracking of the Diablo Canyon spent fuel pools makes it impossible l to accept the Sierra Club's "booutrap" logic, t Having been unable to discover any nexus between the BNL Report and the [ 3 ; ~j , ,, Diablo Canyon spent fuel pools, we cannot 6nd "any doubt concerning the need ' e -
, f .. '
to supplement the NEPA documents . . . ." San Lult Obispo, supra. 799 F.2d 4 T.
' ' Q. J at 1271. Although we view the 9th Circuit's language as dicta, we would exercise ,
. / ! whatever discretion we have to direct the production of additional environmental N . ', . ', ' . ,.
'~.:x 1 documentation. if there were any doubt in this case. However, we and none.
' ~
' In light of the foregoing. we do not find it necessary to address whether the 4'
- l contention is "late filed" and whether it fails to satisfy the requirements of 10 C.F.R. 9 2.714 for a late-filed contention. .
-c For all the foregoing reasons and based upon consideration of the entire !
-g record in this matter, admission of the Sierra Club's contention concerning loss. l of<ooling accidents and its request that an EIS be prepared are denied. ;
f THE ATOMIC SAFETY AND LICENSING BOARD ! a e a
. B. Paul Couer, Jr. i ADMINISTRATIVE JUDGE ,
Glenn O. Bright , ADMINISTRATIVE JUDGE l , l Jerry Harbour [ ADMINISTRATIVE JUDGE ! 4 Bethesda, Maryland 7 i September 2,1987 I i [ '- ' i
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e; ) J. i Cite as 26 NRC 168 (1987) LSP-47 25 3 UNITED STATES OF AMERICA 4 NUCLEAR REGULATORY COMMISSION i
- ) ATOMIC SAFETY AND LICENSING BOARD <
d
~
i Before Administrative Judges:
' ' .{
; .c
- .]: B. Paul Cotter, Jr., Chairman rl Glenn O. Bright Dr. Jerry Harbour I '
.i in the Matter of Docket Nos. 50 275 OLA j 50 323-OLA
- (ASLBP No. Sb523 03 LA) j PACIFIC QAS AND ELECTRIC i COMPANY j (Diablo Canyon Nucaer Power l Plant, Units 1 and 2) September 11,1987
.j
; In this initial Decision, the Licensing Board ands Intervenor's contentions I unfounded and authorizes the issuance of the license applied for.
- SPENT FUEL POOLS NRC regulations permit sliding, tilting, and impacts of rxks if impxt loading ,
4 is properly quantified and rxk motions are suitably constrained. I i SPENT FUEL POOLS Freestanding spent fuel storage racks have several advantages over anchored
; or braced racks. They reduce stress to the pool liner caused by thermal loads
' _' from heat generated by the spent fuel; they may slide, thus dissipating seismic
' n.
energy; they require no welding for installation; and they can be inspected and replxed more simply than 6xed rxks.
., j
. 168 1
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. . ~ o i INITIAL DECISION i I, INTRODUCTION I'
He Sierra Club has challenged an application by Pxific Gas and Electric l Company ("Applicant" or "PG&E") to substantially increase the storage capacity in each of the two spent fuel pools at the Diablo Canyon Nuclear Power
, Plant, ne Sierra Club contends that the application fails to meet regulatory requirements and threatens the public health and safety and the environment in
! four major respects: (1) relevant data are missing concerning the velocity and displxement of the spent fuel pools and the spent fuel racks in the pools during
; an earthquake; (2) the impact forces an earthquake would create on the spent fuel
; pools and the racks they contain are significantly underestimated; (3) collisions A
between the racks, groups of racks, and the spent fuel pool walls during an
, 1 carthquake would cause the release of large quantities of radiation which would
~-
contaminate the plant, the environment, and all living things in the vicinity; and (4) the Applicant failed to consider other, safer alternatives to the high-density i rerxking applied for. For the reasons set out below, we find that the Sierra
} Club's contentions are unfounded, and we authorize the Director of Nuclear Reactor Regulation, pursuant to the requirements of governing regulations, to issue the license as applied for.
II. IIISTORY OF TIIE CASE
. A. The Diablo Canyon Plant
< On October 30,1985, Applicant filed requests to amend its license to operate
; Units I and 2 of its Diablo Canyon Nuclear Power Plant, located 12 miles southwest of San Luis Obispo, California. De amendments would authorize Applicant to increase the number of spent fuel rod assemblies to be stored i
in exh of two spent fuel pools from 270 to 1324. Appl. Exhs. I and 2; Si Fed. Reg. 1451 (1986). The Diablo Canyon plant consists of two large pressurized water reactors, capable of generating up to 10S4 (Unit 1) and 1106 (Unit 2) megawatts of i electrical energy. Unit I began commercial operation in May 1985, and Unit 2 3 began commercial operation in March 1986. Both units use steam generators and
; turbines to produce electricity. De steam is created by heating water through energy originating in the nuclear reaction of uranium oxide pellets contained in 20-foot.long, narrow rods. The fuel pellets are encased in an exterior cover, cr cladding, of Zircaloy. The rods are assembled in "bundles," or fuel assemblies, in the textor core of exh unit.
- I 169 l i
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- - ,t B. The Spent Fuel Pools Each unit has a spent fuel pool for storing up to 270 fuel assemblies after their j j useful reactivity has burned up and they have been removed from the reactor
[ -* core. De spent fuel pools are separate, but identical, large concrete structures i' l=
, j located at opposite ends of the Diablo Canyon auxiliary building. Each pool is approximately 35 feet wide,37 feet long, and 40 feet deep. De pool walls are :
l of concrete,6 feet thick, except around the full transfer canal where the walls ! i
! are 5 feet thick. De pools rest on a reinforced concrete foundation at least 5 i
.i feet thickt the foundation, in turn, sits on 5 additional feet of lean concrete set directly on bedrock, ne pool walls are lined with stalaless steel, W. inch thick
'4
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; on the floor and h inch thick on the walls.
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C. The Racks
- v.. . - .
Under the license amendment sought, sixteen modules, or "racks," of dif. fering sizes would be placed in each pool. Each rack is a large, rectangular,
] , stainless steel"canister" approximately 17 feet high and weighing from 15,000 l .
to 28.000 pounds. Each rack contains from 24 to 110 storage cells. Each cell is l
':I approximately 8.85 inches square, and each will store one Westinghouse spent j fuel assembly. Stainless steel gap channels are welded between the cells to create
] a rigid,"honeycomb" structure to resist impact and seismic loads.
4 De racks are free standing at the bottom of the water 611ed pool, so that the
. top of the spent fuel is approximately 23 feet below the water's surface. Rey are surrounded by, and filled with, water. The racks have no rigid structural 1
- member attaching them to the pool floor or walls or any adjacent rack, ne I racks stand on feet, large round steel dowels approximately 2 feet in diameter
! and 5 inches high, located near the four corners of each rack. Those feet, in (
'j turn, rest on bearing plates on the pool floor Each rack has an exterior steel '
girdic bar welded near the top of all four sides of the "canister." The girdle bars serve as a designated impact location designed to accommodate impact loads that may occur during a seismic event. The girdle bars also maintain a specified l f minimum gap between the cell walls of Mjacent racks for allloading conditions. > l , D. The 9th Circuit Stay
! On May 30,1986, after petitions to intervene had been filed herein, Staff f
! made a finding of "no significant hazards consideration." 10 C.F.R. I50.92 !
(1986). Based on that finding, NRC approved the license amendments requested l and made them immediately effective. One of the then parties to this proceeding appealed the finding. San Lads Obispo Mothersfor Peace v. NRC,799 F.2d 1268 i
~
(9th Cir.1986). l i 170 J I I 1 1
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-1 Pursuant to the "Sholly" amendment to the hearing requirement of the i Atomic Energy Act, the Court found that the NRC finding of "no significant
~ - hantds consideration" violated the statute and implementing regulations. 42 U.S.C. 6 2239(aX2XA) (1986 Supp.); San Luis Opispo at 1271. De Court reversed, staying any fu.rther work on the spent fuel pools and barring Applicant from depositing any spent fuel rods therein, except in accordance with the pools" original configuration, until the conclusion of this proceeding. San Luis Oplspo at 1271, <
E. Status of the Contentions l - ' Dc Sierra Club's contentions, as restated by this Board, were admitted to this proceeding in 1986.8 LBP 86-21,23 NRC 849 (1986). De first contention,1(A),
,. alleged that relevant data on six designated subjects was not contained in the m -
license amendment application and subsequent communications. De Board held that the contention "goes to the availability of the data cited, not its accuracy I g or adequacy," and urged the parties to settle the matter and report on their 4 efforts within 30 days. Id. at 861. As a result of the information subsequently l made available, the Sierra Club reported that four of the six subjects had been l resolved by the informauon supplied by Applicant, leaving only two still in
; dispute. The two subjects still at issue, items 3 and 4, generally concerned data
.j on the expected velocity and displxement of the spent fuel pools and the racks during the postulated Hosgri earthquake. Memorandum and Order dated August
_l . 28,1986, at 2 (unpublished). Two other contentions remain.* In the first, Contention 1(B), Sierra Club i alleges that the license amendment application failed to consider certain relevant ! conditions, phenomena, and alternatives necessary to verify health and safety and ( environmental claims made as they relate to four items: (1) the consequences of the resonant behavior of the spent fuel assemblies in the racks during an earthquake; (2) alternatives to onsite storage; (3) anchoring or bracing the freestanding racks; and (4) the use of Boraflex neutron absorbing material for all spent fuel racks. Dat part of the contention concerning Botaflex was withdrawn during the hearing. Tr.173 74 1' I l , I Two er.her prues autary adnuned is me pacendea. Cmemmri Orsan6:ed fe Defense of favummeraal i l sarery and me saa las oNo M:n.hers rar Peace, asksspency wuhdrew fnun se case. and meat corsenues l =wre esassist Mamesadarn and order ismand lasery 30.1987. et 4 (wspwbanhan. I At me ownset of de heanns. s,erre CLb moved se adrrussumi of two adaumal cesetes wbch wers taken
. under adnsemos prerg asbespers f.Mgs by 6e paraes. Tr.142 74. The Arm. cecersrg me poss.hahty or claddeg tres, was gened by me Board in a Marnaranden and order aswed sapember 2.1987.LJLP-87 24. 26 NRC 139 (19s4 The secane, sesent3 a Senat nowaran ahearber. ens aca purewed by es s.arra C:wb and l, a desned wedre it see Scard End.rg R s@s.
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i De second, Contention 11, has two parts. In Part A Sierra Club contends that collisions between the rxks and the pool walls during an earthquake will cause damage to the racks and spent fuel assemblies, resulting in radioxtive contamination of the Diablo Canyon plant, the environment, and allliving things j in the vicinity. Pan B alleges similar results from collisions between groups of racks with exh other and the pool walls.
! 111. ANALYSIS
, . A. Contention 1(A)
' I Contention f(A) reads as follows:
, -1 h is the contenuon of the Serra Club. Sarna Lucia Chapter (Sierra Cub), that the report
' } suteniued to the Nuclear Regulancey Commission (NRC) enutled Rerading of Spent Puel y
Pools, DiaNo Canyn t'nas I and 2 aM other commurwauces between Pacinc Gas and
' Elecinc Canpany (PG&E) and the NRC,3Nch are ava41able to the PNic on the same subject
} (the Reports). fad to ccetain certain relevant data necessary fce indeperdent ven6 cation of
' the clarns mMe in the Repons regarang crmsinency of me prwosed reracking with the
; pecucuen of the public heald and safety, and the environn.ent.
j In particular, the Reports fail to contam data regardeg:
- 3) 1he espected velocity and esplacernent of the spers fuel pcds (pools) as a
.l furecn of uma in three &rnensions dunng $a postulated Hosgrt sarequake I
I (PilEX i 4) The espected maximum velocity aid &splacernent of the rads drained inun the compter modeling of rad behavvar dannsse PHE. 6 i Both Applicant and Staff concede the truth of Sierra Club's Contention !(A)
; allegation that the reracking report (PO&E Exh. 2) did not contain 3tparately sr.2ted values of velocity and displacement for the fuel pools and fuel rxks, respectisely, during the postulated liosgri earthquake (Pile). De PliE is the maximum carthquake that can be expected at the Diablo Canyon plant and sets the outer limit for seismic forces that certain plant structures must be able to withstand. liowever, both Applicant and Staff argue that it is not necessary to show the values separately because of the method of analysis used in designing the pots.
Deir expert witnesses tesd6ed that the calculation methods employed for analysis and & sign do not use these particular values, but rather depend upon the acceleration time histories of the PiiE itself, ne values of velocity and displxement can be derived from these acceleration time-histories but were omitted in the reracking report as being unnecessary. See Board Findings 1619. 4 a 172 l
. . . ~ .
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3 4 d he Board 6nds the explanation of Staff and Applicant experts persuasive. We
; find that a separate statement of the values in question was not required.
? Accordingly, Contention 1(A) is denied, j B. Conteration 1(B) d Sierra Club's Contention 1(B) has three parts which we address sertatim. The ,
, first, !(B)(2), provides as follows:
f h is the cootendon of the Siens Cub that the Reports fail to include cmsderatxn d censin
! reteysnt cordiums, phenanena and ahernadves necessary for indegendent unficabon d claims made in the Repor.: regardmg ccruistency d the poposed verading with putdic ,,_ s
{ heahh and safety, and the envitornent, and unh federal law.
.- i *- s
.l In pardcular, the Reports fail to consider:
. eee
- s. 2) The resonant behavior of the spers fuel assemblies in the racks in respmie to the Pile and the cmsequences of sudi behavior . , ,
a
- Sierra Club's Contention 1(B)(2) alleges that the PO&E's reracking report l- did not consider resonant behavior of the fuel assemblics in the racks during a PHE. Although resonance phenomena were not explicitly addressed, the design.
.! basis analysis performed by the Applicant would have revealed such behavice
- _j were it to exist The absence of any resonance is not surprising, as it typically l j appears only in linear response systems free to vibrate without damping, w hereas l i the rack-fuel assembly system at issue here is highly nonlinear, in any event, the amplitude of any resonant behavior of the fuel assemblies i would be constrained by the 0.302. inch water.611ed gap between the assembly i and the cell inside the rxk. Staff's experts testified that PO&E's analysis is 1 l appropriate and that no resonance effects are expected Board Findings 22 and l t 23. The Sierra Club proposed no findings on this contention.
l l The Board agrees with Applicant and Staff that the analysis performed by l j Applicant would have detected any resonance effects if such effects existed. We l
} therefore find the contention to be without merit, and it is denied.
l ; Contention 1(B)(7) provid,ts as follows: 1 1 h is the conterason of the Sierrs Oub that the Reports fa.lio include cmsderatxe d certaan retennt cmdincms, pheccena and ahernauves neassary for irdependert venAcataan d claims made in the Reports regardes cmststency d the pcpaed reradmg muh pubhc j he4hh and safety, and the environmers, and unh federallaw. l l s .
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! In pardcular, the Reports fad to ccesider-
- 7) Alternante cm site storage facdidea irmludes:
(i) cmstrucucri of new cv addaumal stcrage facaiues at 14r, (d) acquiside of modular or mchde spas nuclear fuel smge casks; I In Contention 1(B)(7) the Sierra Club maintains that the Retacking Repcrt should have considered alternative methods of onsite fuel storage, namely, l J provision of new fuel pools or spent fuel storage casks. Both Applicant and Staff argue that consideration of these fuel storage modes is not an NRC requirement. Applicant's experts testified that PG&E had analyzed and compared its options for greater storage capxity before making its decision to use high-density reracking, as us only prudent. Applicant concluded that neither of the
-l two alternatives mentioned by the Sierra Club had any safety advantage over
]' rerxking and that there were gobably some safety concerns that weighed against the alternatives, such as the necessity for greater fuel handling. The time frame in which new fuel pools would be needed, the lack of suitable sites for their location, and the projected expense also weighed against construction of new or additional storage facilities. The Staff review essentially agreed with the PO&E position. Board Findings 25 30. Sierra Club's testimony presented no concrete evidence that PG&E had failed to adequately consider alternative onsite storage. Board Findings 3133. '
The only specific NRC requirements are consideration of offsite storage or l i reprocessing of the fuel and of shutting the reactor down. PG&E Exh.12, V 1. These comparisons are included in the Reracking Report. Board Finding 34. The Board finds that the alternative compansons presented in the Rerxking Report
;omply fully with NRC rules, Consequently, Contention 1(B)(7) is denied.
Contention 1(B)(8) provIdes as follows: h is the scraenuce of the $,crra Cub that the Reports fut to include cwideratam a certain relews coreuans, phencenena and ahernauves necessary for independere venkadon d ctaims made in the Reporta regardes cmsistency of the proposed rerscbr: eith pubbc heahh and safety, and the environment, and w nh federal taw. j I In pardadar, the Repons fad to cmsider-
-l' s) the use of arwhort, braces, or other strudural mantwrs to prevers rack arksion and subsequera darr. age during the Pile; Sierra Club Contentisn 1(B)(8) claims that Applicant dd tot consider the use of structural members to prevert rxk motion and possible damage during the PHE. Both Applicant and Staff argue that the design of the poposed racks satisfies NRC criteria and guidance applicable to spent fuel storage racks, and 174 e
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that anchors, brxes, or other structural members are not needed. ney also point out that the use of freestinding racks has several advantages over anchored or
, brxed racks. Board Findings 36, 37.
The Sierra Club presented no speciac findings on this contention, ne Board
! can only conjecture that either Sierra Club no longer has an interest in this contention or that whatever interest it had us subsumed in Contention If, which follows. A great deal of testimony, cross caamination, and findings were presented on Contention !!, the thrust of which was the alleged inadequxy c,f
.] the PO&E's analysis of the freestand.ng racks. On this basis, we rule herein N.!
'{ on the narrow point that since, as Staff and Applicant agree, the freestanding i rxks satisfy NRC guidance and criteria (see igta Contention !!), there is no
, need to consider structural members for the stabilization of the racks, Contention j 1(A)(8) is denied.
5 C, Contention 11 Contention !! has two parts: Part A addresses poss ble collisions between
, the racks imJ the pool walls, and Part B adJtesses such coltisions between groups I
l of rxks whh exh other and the poo' walls. Each part has nine subparts. We { address them here, sertatint. , i l .
,' Contendon ll(A) l l ,
Contention !!(A), subparts 1 to 3, states as follows: h is the corunuwi of the Sierra Club that the propcsed reradirig is inconsistml est% the prcsecta of the pabtac health aad safsry, and the emircriment, fa tenims which include the fouommg: . ! ! A) during the PHE, couisions between the tsds and the pel mans are engwaed to occur, resulting in: j 1) irnpact forces on the rac.ts sign 4cantly larger than those estimatM in the
! M Pon*;
l l 2) unpact fon:es on the raas signif,cantly targer than those espened to I damage the rads; I
- 3) sign 4ftsant perrment Jeformancri and other danage to the racks ard luol i
i stus; I The first three parts of Contention !!(A) ctul'efige the seismic dtsign of the
- i. I freestanding, high-density fuel storage rxks proposed for teracking of the Diablo l Canyon fuel storage pools. The two main prongs of the Sierra Club's challenge
! are: (1) an assertion that NRC regulations and guidance prohibit sliding and 1 . l 175 t
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?. ,~j- and rack to-wall impacts; and (2) assertions that the compes, analytical and t
i modeling procedures used in deriving the earthquake indred mpact forces, 3, . _ ;( s, t. ^ g j l.: ads, and stresses were based on inadequately demonstrated thec.y or practice; 4 , '~ ' ' ;,' . i ucr haemately perfor ned; and were nonconservative in certain respects.
~
L .,i Becatse the. mnr.k.ing parts of Sierra Club Contention II (i.e., reduction i u - of the spaciq between fuel elements and an increase in the nuclear criticality d coefficient k,3 above 0.95, with concomitant generation of heat and release of , radioactivityWuld be a consequence only of serious damage and deformation
',i T ,
d
't .j of the racks daing' the postulated Hosgri carthquake (PHE), the first three parts
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of C >ntencon 11 are crucial to the Sierra Club's position.8 ig '. . m ._. Le Applicant maintains that its design procedures fully meet NRC seismic
~
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desigr, requirements and guidance cor.tained ir. the Standard Review Plan
,' 9 ' ,, ,' . T ~
. (primarily found in $9 9.1.2 and 3.8.4 of .(pperdu 9) and in the NRC Ortice 94 ,. - J.,,.A. . Technical (OT) Position Paper, "OT Position for Review and Acceptance o'
~ " -4' Spent Frpi Storage al Handling Applications," dated April 14,1978. PG&E _. j contends thrithe NRC criteda permit rack sliding ynd rack to rack and rock-
- - '9 to-wall impacts and provice specific guidaree es how such impacts are to be
( -
-]:; incorporated in the rack design.
ne Staff view on its OT Position Paper is that there is no dispute that j sliding, tilting, and impxts are permitted, so long as impxt loading is quantified j and that sliding and t'Idng neth are contained wM2in suitable geometric
' j constraints. Inter rack and rack to watt iywduies constrain rack movement pnd .
; prevent overturning of racks.
; De Sierra Club's position that NRC regulations or guidance do not permit
, sliding, tilting, and impact of the racks with each other or with the pool walls I was supported or,!y by the interpretation of its witness, who was not persuasive i l in this regard. Sci Knding 45 Accordingly, we find that NRC regulations and
' ]j guidance permit sliding, tilting, and impacts of the racks if impxt loading is j properly quantified and rack motions are sui' ably censtrained.
mj @c Sierra Club's challence m the analytical ad! modeling pr%edures used i la the design of the racks large y reduces to several assertions appan't.rly related to the comp!cxity of t' models themselves and simplifying assum uions used i, by Applicant to predict ract motions.
~ J In regard to the effect of fluid forces upon the racks, the Sierra Cnb asserts
' I that, during closure of the gap between opposite-moving racks, fluid forces
^
_ -l would be great enough to cause bowing of the rack. and that bowing would allegedly alter the fluid coupling forces (by increasing the gap width) and thus
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.M 3 siesre Club's Comennon P(B). see i#s. assec.s $e same de6ca&s hd potaitid consequaxes as U(A) but s" ' .' N.- . 7,.-(
, . . as a resuh of con 2sions or grvys er redts wie ead cher ted *h w pool wans. Jee et.so sierra Club's Final
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, . , Proposed Findanas of Fad. 6 si q z', ; [, [X .
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, increase the impact velocity ani impact forces upon collision. The Sierra Club s
. =l also asserts that PG&E's assumption of the fuel elements as solid objects is not l conservative and that a more realistic model with water riowing through the fuel
, 7' ~
~
elements would result in larger but unknown impxt forces. The Sierra Club N- ,
',' ; ts -
also argues that the validity of the fluid coupling assumptions used in modeling
- : 4 e ; 7 i the seismic response of the racks is in doubt and has been ccepted by the Staft'
- ! with little or no argument. ,
, s q
The use of two widely spaced coefficients of friction,0.8 and 0.2, in the i seismic response modeling is questioned by the Sierra Club on the grounds
/ that denting of the bearing or bridge plates might occur during rack to-lloor f J .
impacts, and could result in spatially varying coefficients of friction. However, _ d' , E . , E . s a, ' . ' 9- JE - Q ' ' - 1, h)j . it is not argued that the resulting friction coefficients would be outside the range utilized by Applicant, or that such effects would affect rack sliding
- tf ~
1 or acceleration response so as to result in design loads or stresses different
' - lq ; 'l , , .,' from those obtained in Applicant's design analyses. Staff maintains that use of 3{
cj ~ the bounding coefficient values (0.8 and 0.2) would cover possible effects of i spatially varying coefficients of friction. Finding $2.
;;! Testimony of the Applicant and Staff expert wimesses flatly contradicts the 4 Sierra Club assertions in regard to fluid coupling effects. Applicant argues in each of the examples cited above that its assumptions and modeling procedures
, e treat fluid coupling forces so as to maximize impxt loads and stresses in the racks; i.e., they increase, rather than decrease, conservatism. Additional conservatism is provided by neglecting fluid damping and form drag effects l
~
on rack motions in the models. Staff concurs. In regard to the applicability l
- of the fundamental hydrodynamic concepts, Applicant demonstrated that the l procedures are wel.' (stablished and based on long. standing principles. Further, Applicant points to many areas of conservatism incorporated into its overall
} design of the freestanding high density racks. Findings 4Ca g,52 54,57,60-61.
. According to the Applicant's calculations, the largest calculated impact force
, between a storage cell and a fuel assembly is 249,000 pounds, or 28% of the j allowable 883,000 pounds, and the maximum calculated impact force between
! racks is 105,000 pounds, which is 60% of the allowable 175,000 pounds. Finding 63.
! The Sierra Club does not maintain that its calculations that yicided impact forces larger than the allowables listed in the reports are accurate and reliable l or show rock failure. Finding 62. l The Board finds that the design of the proposed high-density racks meets l
_ j applicabic NRC requirements and that the racks will withstand the effects ; of the postulated Hosgri earthquake without incurring significant permanent l
, deformation and other damage to the racks or pool walls. Thus Sierra Club l
., . - , Contention !!(A) subparts 1,2, and 3 are without merit and must fail.
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"l ' 1i' Sierra Club's subparts 4 through 9 of Contention II(A) read as follows:
+;] It is the contention of the ' Sierra Club that prcposed reracking is inconsistent with the prcsecdon of the pibtic heahh and safety, and the environment for reasons whidi include the fouowing:
' ' (A) during the Pile, couisions between the racks and the pool wr.11s are expected to
, occur resulting in:
.I e 4) reduedon of the spacings between fuel assemblies; s
h 5) increase in the nuclear criticality (siet reacdvityl coefficient k(eff) above 0.95;
, ]
~
;!H J ,[ , _ , _
- 6) release of large quanddes of heat and radiadon;
_ - a ~
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. 7) radioactive contaminadon of the nuclear power plant and its employees
. s . . .
above the levels permitted by federal regulations;
- -[ . , . l. . , [. 8) radioacdve contaminaden of the envirmment in the vicinity of the nuclear
~
.1 power plant above the 'evels permitted by federal reguladons; and
', 9) radioactive cataminadon of hwnans and other living things in the vicinity of the nuclear power plant above the levels permined by federal regula.
tions.
}
. Because the effects alleged in Contention II(A), subparts 4 9, are postulated il to result only from significant permanent deformation and damage of the racks 1 and pool walls during the PHE, an assertion we have found, supra, to be without
] merit, subparts 4-9 must also fail, i The Sierra Club offered no testimony on :,uoparts 5 9 of its Contention II(A),
i and its testimony on subpart 4 was incidental to that on subparts 13. { In its Safety Evaluation (Staff Exh. I at 3-6), the Stsff found that the Applicant had demonstrated compliance with General Design Criteria (GDC) 61 and 62,10 C.F.R. Part 50, Appendix A, f VI. GDC 61 requires that fuel storage facilities be j designed so that adequate safety margins under normal and postulated accident ni conditions are assured. GDC 62 requires that criticality in fuel storage and i handling systems be prevemed. Because of demonstrated compliance with l these criteria, no analysis of a criticality event in the spent fuel pools is required. However, we make 6ndings, based on analyses performed by Applicant li and Staff, to illuminate the considerations bearing on reactivity with and without
- borated water in the pools under normal and abnormal conditions. See Findings 67 70.
4 We also make certain findings on Cortention II(A)(6) concerning evidence evaluating the structural integrity of the fuel assemblies. We find that failure
. .j mechanisms other than significant permanent deformation of the storage racks ;
, -( - '
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will not cause rupture of the cladding. Thus, without rupture of the cladding, there will be no release of radioactivity. Findings 72-74 I
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, Contention II(B)
O ' , Contention II(B) provides as follows:
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- II. Is is the ccruention of the Sierra Club that proposed reracking is inconsistent with the protection of the gublic health and safety and the envirmment, for reasons i
! which include the following:
' ~
(B) during the Pile, collisions between groups of racks with each other and/or
" with the pool walls are expected to occur with results sirnilar to those
-, a desenbed in II(A) above.
y:.-7, V
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. . s As in Contention ll(A), the issues here stem largely from the complexity e s.m c .4 , of the design models and simplifying assumptions used in them to predict Q " ,, rack motions. Different models predicted different motions, forces, loads, and b' ' ' <
y'
- . s. . stresses, because different assumptions and parameters were utilized.
' ~
u At Staff's request, Applicant performed several parametric studies utilizing two-dimensional multirack models to demonstrate the conservatism of its three-
+ dimensional single rack model. While some cases analyzed predicted ~ higher s impact forces than predicted in the single rack model, the predicted impact loads
. were comparable and well within the allowable impact loads used in the rack design. All potential collision conditions under the postulated Hosgri event are thus bounded by the loads for which the racks have been seismically qualified.
Because of the dissimilarity of the racks in terms of mass, geometry, tolerances, and gap spacings, it is highly unlikely that the different racks would respond identically to earthquake motions or that groups of racks would move as a unit during the random motions of an canhquake. We have found, therefore, that the evidence provides reasonab!c assurance that the potential effects of multiple rack impacts with each othea and with the pool walls are bounded by those predicted in the single rack design-basis models. Findings 78 82. Therefore, the assertions in Sierra Club Contention II(B) are rejected as unsupported. IV. FINDINGS OF FACT AFD CONCLUSIONS OF LAW For all the foregoing reasons and based upon consideration of the entire 3
^
record in this matter, we make the following 6ndings of fact:
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' General
~~ i 1. Pacific Gas and Electric Company ("Applicant") is a California utility duly licensed to own and operate the Diablo Canyon Nuclear Power Plant under s
'l
{ applicable state and federal laws.
-j 2. He Sierra Club is a nonprofit, environmental organization admitted to
. l this proceeding through the petition of its Santa Lucia Chapter pursuant to 10
{ C.F.R. Part 2, 1 3. De Diablo Canyon Nuclear Power Plant consists of two pressurized water reactors ("PWR") located 12 miles west southwest of San Luis Obispo,
" California. De units have a design electrical rating (Net MWe) of 1086 for Unit s ,
U,
' - . j, 1 and 1119 for Unit 2. Unit I achieved initial criticality on April 29,1984, and
. /, -
,j began commercial operation ou May 7,1985. Unit 2 achieved initial criticality J - ,_
on August 19,1985, and began commercial operation on March 13,1986.
- 4. De spent fuel pools at Diablo Canyon are loce.ted at each end of the
'1 cast side of the auxiliary building. Each pool is approximately 35 feet wide, 37 feet long, and 40 feet deep. De normal water level in the pool provides a minimum of 23 feet of water above the top of the stored fuel. The concrete a pool walls are 6 feet thick except around the fuel transfer canal where the
' walls are 5 feet thick. The reinforced concrete foundations of the pools have a minimum thickness of 5 feet and are founded on approximately 5 additional 1 feet of lean concrete placed directly on rock. The pool walls and floors are lined with stainless steel plate with a thickness of 0.25 inch on the floor and
~
-i approximately 0.125 inch on the walls. Shiffer et al, ff. Tr.179, at 14. As
. originally constructed, each pool could store 270 spent fuel assemblies.
The License Amendment Application
! 5. On October 30,1985, Applicant filed requests to amend its licenses for a Units 1 and 2 at Diablo Canyon to authorize high-density rcracking of the spent i fuel pools to increase the number of rack storage locations for spent fuel rod assemblics in each pool. PG&E Exh.1: 51 Fed. Reg. 1451 (1986).
- 6. De high-density spent fuel racks proposed for each of the Diablo Canyon fuel pools consist of a total of 16 racks of various sizes, with a total of l 1324 fuel assembly storage cells plus 10 miscellaneous storage locations. De ,
number of storage cells ranges from 24 in the smallest racks to 110 in the largest racks. Individual storage cells have an 8.85 inch (nominal) square cross section, and each is sized to contain and protect a single Westinghouse-type PWT 17 x 17 fuel assembly. The cells are arranged with a 10.93 inch center-to-center f' , , spacing in the rack modules. Stainless steel gap channels are welded between l the cells to provide a "honeycomb" type structure which provides considerable 180 ) l
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' rigidity and resistance to impact as well as to seismic shaking loads. PG&E 1 , a Exh. 2; Shiffer et al., ff. Tr.179, at 12-13.
-) 7. Each fuel assembly consists of a 17 x 17 array of cylindrical rods of
. , 1 which 264 rods contain fuel pellets. The assembly is approximately 8.4 inches
' ~
. , l square and 13.3 feet in length. Each fuel rod is a Zircaloy tube containing r I uranium dioxide fuel pellets. Grids r.re positioned at vertical intervals along the
_ 9 length of the fuel assembly to maintain the rod spacing. Shlffer et al., ff. Tr.179, j at 39; PG&E Exh. 2. . d 8. The active fuel region is the region within the fuel assembly that y .i contains fuel pellets. This region extends 144 inches, from approximately 3 n' inches above the bottom of the fuel assembly nozzle, which rests on the rack k-
, baseplate, to approximately 10 inches below the rack girdle bars. Shiffer et al.,
-i '
.1 ff. Tr.179, at 39.
- ',. [ 'l ' ', , '
/1 9. The racks are freestanding, with no connection to the pool floor, walls,
, 1% -
u- ~ - h or adjxent rack modules. The rack support feet rest on bearing (or bridge) 1 plates on the pool floor. Each module is equipped with a girdle bar on the outside of each of the modules' four sides, near the top. Each girdle bar serves
.'- - as a designated impact location and each is designed to accommodate impact
~
'. loads that may occur during a seismic event. They also maintain a specified
- ) minimum gap between the cell walls of adjacent rack modules for all loading l conditions. Id. at 11.
q 10. The rack modules are specifically designed for storage of spent fuel
, h with different amounts of burnup. Three modules (290 cells) are designated as
'I Region 1 in each pool; these utilize a neutron-absorbing material, Boraflex, on j all four sides of the individual storage cells in the rack module. These cells in the Region 1 modules are designed for two kinds of storage, i.e., new fuel i
assemblies with enrichments up to 4.5 weight percent U-235, and spent fuel that j has not achieved a specified minimum burnup. There are thirteen modules (1034
! cells) designated as Region 2 in each pool; spent fuel stored in this region would
'd be required by Technical Specifications to have a specified minimum burnup 4 and, thus, no Boraflex is used in the Region 2 modules. Id. at 1314
_ l i The Contentions 1
-! 11. Three of Sierra Club's contentions challenging various health and
~l safety aspects of the application were admitted to the proceeding. LBP 86-21, supra. Four of six issues in the first contention, Contention 1(A), were
,' ! resolved prior to hearing. Memorandum and Order dated August 28,1986, at 8
- 2. A portion of Contention 1(B) was deemed resolved during the hearing and
.. y ,
withdrawn. Tr.173 74 n '-
-s -
J ~
- 12. Both Staff and Applicant presented expert witnesses concerning each l, of the Sierra Club's contentions. The witnesses were either employees of, or
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,l consultants to, their proponents, and the witnesses' expertise included structural, Q,.' ', , C,1; ,; g
' Er, 9 nuclear, civil, and reactor operations engineering. Their expert qualifications were not challenged by the Sierra Club. See, e.g., Tr.179.
~
f ', _' .
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- 13. The Sierra Club offered one witness on all contentions,-Dr. Richard
".P L a.
~
s m . B. Ferguson. On wir dire, Dr. Ferguson conceded that he was not an expert in
'f , , ,'b - the following technical subjects as they relate to the design and analysis of spent
- t' .i fuel racks: nuclear engineering; nuclear systems; nuclear criticality; seismic i . d design; and federal laws, codes, and regulations. Tr. 424 26. He fur.her stated a that he has never taken courses in the following areas: - nuclear engineering; 4,( nuclear systems; finite-element analysis; and spent fuel storage technologies.
.[~ ; c . j v'
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- Tr. 426 31 Dr. Ferguson's testimony and his professional qualifications clearly-gp,, .: . N y . J'N indicate that, other than his involvement with the proposed reracking at Diablo
- .e 3.- 5
~
- "[' Canyon, he has limited or no experience with any of the technical subjects at A ;,.~.. A C .; , D '" [.;. ['-.1 issue in this proceeding. Accordingly, his testimony is given the weight that
^
, p h. , M. . s the Board feels is appropriate considering his doctorate in physics and over 13
'Z
~
-4 years of teaching physics at the University of California at 1.os Angeles and
- c 9, ' - California Polytechnic State University.
.l;
~- Contendon f(A)
, ,- 14. Contention 1(A) originally consisted of six subparts. Subparts I(AXI),
I(A)(2),1(A)(5), and 1(AX6) were withdrawn by the Sierra Club in their Report
< to the Board dated August 15,1986. Memorandum and Order dated August 28,
, i 1986.
- 1 15. Contention f(A)3 reads as follows:
i ! l h is the contenuon of the Sierra Club. Santa 1.ucia Qiapter (Sierra Club), that the repon
' sut~mitted to the NRC andsled Roracking of Spent Fuel Poolr. Diablo Canyon unus I and !
2 and other cornrnurJcations between Pacinc Gas and Electric Campany (PGAE) and the
- NRC, which are availai,le to the public on the same subject (the Reports), fail to contain
,.,-s , certain relennt data necessary for independent verincaliat of the claims made in the Reports regarding consistency of the proposed reracking with the prosec6cn of the public health and l safery, and the enviravnet. In particular, the Reports fail to contain data regarding:
- 3) "Ihe espected velocity and displacement of the spent fuel pools (pools) as a s -
" ' ' ' function of time in ihree dimensions during the postulated Hoegri eenhquake (PHE)t
- ~
]
- '. 16. The dasign process for the racks utilized the postulated Hosgri carth-
~ 'j , quake acceler*. tion time histories for the base of the spent fuel pool. Velocity
. O I ., _- ,'.c :w y; . . .
, and displacement information can be derived from the acceleration time histories 4p ,
used in the design, which are contained in the Reracking Report, Figures 6.1.1, me'_*
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; .9 6.1.2, and 6.1.3. Shiffer et al., ff. "IT.179, at 24; Fishman et al., ff. Tr. 519, at 6-7; PG&E Exh. 2.
S 17. Data regarding the velocity and displxement of the fuel pools as a function of time in three dimensions for the postulated Hosgri earthquake is
- not necessary for rack analysis or review by the NRC Staff in evaluating the
- technical adequacy of the rack design because the postulated Hosgri earthquake
! acceleration time-histories are used for that purpose. Consequently, the velocity
-! and displxement time history data for the fuel pools were not included in the Rerxking Report because a record of such data was not required during the
~
design process. Shiffer et al., ff. 'IT.179, at 24; Fishman et al., ff. Tr. 519, at s 6 7; PG&E Exh. 2.
.e
- , a Contention 1(A)(4)
- 18. Contention !(A)(4) provides as follows:
-1 It is the contention of the Sierra Club. Santa Lucia Chapter (Sierra Club). that the report submined to the NRC entitled Revacking ef Spent Fwl Pools, Diablo Canyon Units i and 2 and other ccumunications between Pacific Gas and Decuic Cornpany (PGAE) and the
) NRC, which are available to the public on the same subject (the Reports). fail to cmtain certain relevant data necessary for independers venficatice of the claims made in the Reports
]
- regarding consistency of the proposed reracking with the protection of the public health and safety, and the environment.
g In particular, the Reports fail to contain data regarding:
)
! 4) The expected maximum velocity and displacernent of the racks obtained from the j computer modeling of rack behavior during the PHE; j 19. The maximum velocity of the racks is not documented in the Reports i because it is not a value needed for design of the racks. However, the max'u r.um
} displxement for a loaded rack module is included in the Reracking Report in Table 6.8.2. Shiffer et al., ff. Tr.179, at 24 25; PG&E Exh. 2. See also Finding 40, infra.
t
\
Contention f(B)
- 20. Contention 1(B) originally consisted of ten subparts. Of these, the
} Board found that subparts I(B)(1),1(B)(5), and !(B)(10) were subsumed in Contention !!. Subparts !(B)(3),1(B)(4), and !(B)(6) were rejected by the Board as not meeting the basis and specificity requirements of 10 C.F.R. 6 2.714(b) a_' (1986). LBP 86 21, supra, 23 NRC at 86164. !(B)9 was withdrawn by the Sierra Club during the hearing. Tr.173 74.
~ '
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." 3 21. Of those subparts remaining, Contention I(B)(2) provides as follows:
,' ~
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's ,
, h is the contendon of the Sierra Cub that the Reports fail to include consideration nf certain i .
relevant condidons, phenomena and ahernadves necessary for independent verification of
' *~ ' 0, ' - claims made in the Reports regarding casistency of the proposed reracking with public
~~
1 heahh and safety, and the environment, and with federal law. _ . In particular, the Reports fail to consider:
- 2) The resmant behavior of the spent fuel assemblies in the racks in response to the Pile and the consequences of such behavior; 1
J 22. The rack analysis performed by PG&E considered potential resonant be.
.r ,
- - .j havior of fuel assemblies in that the design basis analysis performed to evaluate
[ _. ,
.K
'^ C %1 the fuel racks utilized a mathematical representation of the various components
, - y; '
and their response behavior. Since resonant behavior is a fundamental condition
,ep~- .,
described by the equations of motion, and since the equations of motion weie 1
,] - ,
appropriately represented, the analysis considered the possibility of resonant be-havior. Shiffer et al., ff. Tr.179, at 26.
~ -
- 23. The design basis analysis demonstrated that, due lo the specific condi-
, tions present, the fuel assemblies do not experience resonant behavior. These
~
- conditions include the nonlinearities of the system (in:luding the presence of 1 water, the movement of the fuel assemblics within the fuel ra;ks, and the pres-
- ence of friction at the fuel rack base). The analysis appropriately represented these physical conditions and demonstrated that the integrity of the racks is maintained. As a practical matter, resonance will not occur since the displace-
, ment amplitude cannot increase beyond the 0302. inch clearance between the I fuel assembly and cell wall. Shiffer et al., ff. Tr.179, at 27; Fishman et al.,
ff. Tr. 519, at 10-11. Contention f(B)(7) s
'J 24 Contention I(B)(7) provides as follows:
h is the contendon of the Sierra OL.b that the Reports fail to inchde consideradon of certain i relevant conditicris, phenomena and ahernadves neassary for independent verif,cadon of claims made in the Reports regarding canistency of the proposed rerscking with public
.; heahh and safety, and the environment. and with federallaw.
In pardc Alar, the Reports fail to consider:
- 7) ahernative on-site storage facilides including:
. t (i) construedon of new or additional storage facilities arwor; i 6 -l~' -
j (ii) acquisidan of modular or mobile spent nuclear fuel storage equipment,
?
, , f q . ', ^ - ,m -d including spent nuclear fuel storage casks; e ..
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'; l 3 ; , Wb 25. PG&E had compared the two methods of onsite storage facilities c '6,
- f, mentioned in the contention with the proposed reracking. The evaluation was brief because these two speci6c methods,'i.e., additional storage facilities in
.' . wg , . g. .. . . .p a and acquisition of modular storage equipment, do not offer any increase in safety over high-density racks, and they involve technical, regulatory, and other f ~4mj' j[' .n %..; h * ;s. '
disadvantages when compared with high-density racks. Shiffer er al., ff. Tr.179,
#4
_ jf.,' V ' j' at 28; Cleary, ff. 'IY 604, at 2-3; PG&E Exh. 2, Ch. 9.
, . 9 d 26. An additional storage pool was considered less attractive because it y' '
,,7, would not provide any added safety for spent fuel storage than with properly m 'x. v 5 .s 1. ",
7 designed high-density racks in the existing pools. Moreover, the costs of
.TM;D W :.- Y'? i W constructing a new seismically quali6ed structure and auxiliary support systems I S b 3 Q ";. ~ R ;.T' ' "
would obviously be very'high compared with teracking. Finally, this would Q'jy,;fffc Jj.p'<!@i involve increased handling of the spent fuel Shiffer et al., ff. Tr.179, at 29; J J!?r? Q '.- R . N N if, ' " ' Cleary, ff. 'IY. 604, at 3 5. 1
- 27. Acquiring modular storage equipment was considered les; attractive a, <, .. C
,A,l A[A , '
. +< -
' .C, '
G because such equipment would not provide any added safety over and above properly designed high-density racks. Further, modular equipment such as dryr 4'"'". - cask storage was not a licensed concept at the time the reracking decision was
". made by PG&E, and casks were still being tested. In any event, dry-cask storage is not a' viable option for Diablo Canyon based upon the design of the dry casks
, '~. currently available. The dry casks are designed to store only fuel that has been C - -
dhcharged from the reactor at least 5 years prior to cask storage. Thus, this storage method could not be used for at least 5 years following the first refueling
. j outage. Cleary, Tr. 617. See 10 C.F.R. Part 72 (1986).
% '.1 28. The existing low-density racks at Diablo Canyon were originally de-j sigod in accordance with early NRC guidelines, to accommodate spent fuel
. ,7
' ~
v j discharged from one refueling (roughly 70 assemblies), plus a reserve capacity
,. 1 of a full core nffload (193 assemblies) in the event a full-core discharge were .
- 'ecessary. Shiffer et al., ff. 'IY 179, at 29.
- 29. The storage space associated with one refueling discharge is currently occupied at Diablo Canyon Units I and 2 after the nrst refueling outages. Based !
upon operating schedules and the desirability of maintaining full-core discharge
- capability, it is necessary that the spent fuel storage capacity for both units be increased Further, the cost of the casks, assuming their availability, that ;
x , , ;. would be required for the needed capacity at Diablo Canyon would be high l 1- ,, compared with the reracking alternative. At the time that PG&E made the { e, I mracking decision, there were no plants in the United States using modular l C -Q:%'. N7 .s ,
'fq storage facilities for spent fuel storage. Subsequently, two plants were licensed I
' . b; to use modular storage facilities such as dry casks, but these plants did so only -
" Q 9] ' M*J;1
'. ' ' .(,3; p. when all of the storage space in existing pools had been 611cd after they had
.2 , : c been previously reracked with high-density racks. Shiffer et al., ff. Tr.179, at o '.y.
"p.f E:( ".-a_g' @;,q ..
g .pu, Qv:. % ,g ; 29 30; Cleary, ff. 'lY. 604, at 5 9. d
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- 30. The Staff reviewed PG&E's fuel pool amendment with regard to
, i
- 9 alternatives and presented its findings in the Environmental Assessment. Staff kJ
..q Exh. 2. Rey agreed that PG&E's proposed reracking would have no significant 6;. ,
Mi environmental impacts, whereas the Sierra Club's assened alternatives of new 1 ,
- H , , ~ d i
~
'! or additional storage fxilities or use of modular or mobile fuel storage racks
.~.
s j would have specific, although not significant, environmental impacts. They also j found that teracking the existing fuel pools has clear financial advantages over
- 'i the asserted alternatives. Cleary, ff. Tr. 604, at 2 9.
1 31. The Sierra Club did not present any affirmative evidence to show
~ - . .
$ that PG&E had failed to consider other alternatives to reracking. Ra'her, this 7 y .i N - l '
contention is based only on opinion. Dr. Ferguson conceded as much when if M 3- .q{If - 1 '
-- s
* - ' ' dl he stated that the particular contention "is just an opinion" he had reached.
' /d .
i
' . v
~'
Ferguson, Tr. 443.
.o-O 2 - ' . * '
'1" 32. The Sierra Club's testimony on Contention 1(B)(7) was amended by its
~ . .
only witness, Dr. R. Ferguson, who conceded that PG&E did, in fact, consider
' other alternatives to reracking, though not in his opinion "seriously." He stated that he wished to amend his testimony to say that PG&E "failed to consider t
them (other alternatives] seriously." Moreover, Dr. Ferguson acknowledged that during the discovery process, the Sierra Club received documents from PG&E that considered other alternatives. Specifically, he admitted that "[t]here werc
~
-i some documents provided related to cask storage." Ferguson, Tr. 444
- 33. Applicant produced evidence that showed that it did review "four or i five alternatives" before selecting reracking. PG&E Exh.13. Dr. Ferguson I admitted that Exhibit 13 contains "a brief summary of descriptions of some factors involved with the alternatives" considered. Ferguson, Tr. 446-47.
- 34 The Diablo Canyon plant was designed to store spent fuel for a nominal
, period of 1 year and then ship the fuel off site for repmccrsing or disposal. Due to the unavailability of fuel reprocessing facilities and of permanent disposal sites, the spent fuel must now be stored for an extended period of time at
- 1 Diablo Canyon. Therefore, the alternatives that must be considered, in addition to onsite storage, consist of various methods of storing the spent fuel off site
- or shutting down the reactor. De consideration of alternatives, including offsite
- shipment of spent fuel and shutdown of the reactor, was documented in the
~
Reracking Report, Chapter 9. While the onsite storage alternative was chosen, there are no regulations that specify the nature of onsite storage methods that
' must be considered or documented. De discussion included in the Reracking Report was sufficient to comply with NRC req.tirements. PG&E Exh. 2, Chs. 9
- and 12, v.l.
'4- p p_
, e
.s ,
b g ,' ~_ , 4 . s_ 3 b;
- 186
~
_ . . . _ . , . . . _ .. . _ . _ . . _ .., . . ,, . s _. euu h P *. , j,
%g e $
I
, ' *,u-'
g- ,,_
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- ;p/s. '.m;; ;
- 4. ,, , ,w'~~ ;;wt;: 7 D. p} ; :.,2: = w a m e::..: a , . .
( '9 ;[
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. JP' -
( . .
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+ , .. , . .
l
' * " . Contention 1(W8)
- 35. Contention I(B)(8) provides as follows:
e
*>r, S,-O
', /J E h is the concerdon of the Sierra Cub that the Reports fail to include consideration d cenain
.-' ['.
~
, , relevant conditicas, phenomena and ahernatives necessary for independent verification d
'._. I claims made in the Reports regarding ewsistency d the proposed reracking with public heahh ar<d safety, and the environment. and with federal law. ,
In particular, the Reports fail to consider: s C.>'
') ; A) the use of anchors, braces, or nther struaural manbers to prevent red motion and subsequent damage during the PitE;
. ; u), - ; q.a
. . ~ , :s, M;, , ,oJO M- 36. The use of anchors, braces, or other structural members to prevent rxk
. .v
. ~ motion is not discussed in the reports because freestanding racks meet safety
, m^
s
^
requirements without such structural members. Shiffer et al., ff. 'IY.179, at 31;
- t
- Fishman et al., ff. Tr. 519, at 11 12.
- 37. Structural anchors, braces, or other structural members are not required
.( to prevent tack motion and potential subsequent rxk damage. The freestand-ing racks satisfy NRC criteria and guidance applicable to spent fuel storage
} racks. Fishman et al., ff. Tr. 519, at 11 12. The design xcommodates the cal-culated rack motion during the postulated Hosgri earthquake and shows that the racks have sufficient safety margins. In addition, freestanding racks have sev-eral advantages over anchored or brxed racks. Particularly, freestanding racks
, reduce the stress on the liner caused by thermal loads from the heat generated by the spent fuel. Ibnher, sliding provides a very effective means to dissipate
, energy. A freestanding rack is, therefore, considered a better design 'o absorb
. seismic energy and, thus, has a distinct advantage over anchored or brxed racks.1%rther, no welding is required to install the freestanding rxks. Finally, inspection, and replacement of racks if necessary, is simplified by the use of freestanding racks. Shiffer et al., ff. Tr.179, at 31.
Contention II(A)
' ~
- 38. Subparts I to 3 of Contention !!(A) provide as follows:
< , e h is the contention of the Siena Qub that the prgosed reracking is inconsistent with the
, , prcsection of the public heahh and safety and the environment, for reascms which indude
* - !~
4 . the following: s
, A) during the PIIE, couisicos betsten the racks and the pool walls are expeaed to l
. @f ' < ' * . occur resuhing in:
'd~ -
- g. , .
,.]- r
? -'O.' .}
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- { -! g, e,g;3. r , R- I) hopact forces on the ncks significandy larger than those estimated in the
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- 8
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- 2) impact forces on the racks signincandy larger than'those espected to damage the racks; 7 ', ,y ,
3'0 *.- .
, + . -,
n.'. , 's *
, y c, , 3) signincant permanent deformanon and other damage to the racks and pool
/ - M: ' g.: .
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- - 8 . ., ..
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3' c ' 4 '. 39. The design process for the racks utilized the postulated Hosgri carth-M'1 } quake acceleration time histories for the base of the spent fuel pool. The artifi-
, s.-- 4, * - X . ,;, s. cial time-history utilized is the one that was previously developed in the 1977
..f..~ , ,
time frame and used in the 1983 Independent Design Verincation hearings. Id. at it .. c . C .- J - ..? h*.sQ m . s %. d .. ww : p.. F M . d ,
'24; .NFishman MQ e,.j- et al., ff. Tr. 519, at 6-8, Fig.1: White, Tr. 410-11.
- 40. An artificial time-history is developed as the superposition of sine i' Q [-Q ;". % % ; Q M Wf'
." 6.J 4,Kpt;W3}f ; .... i f
waves.with different amplitudes, frequencies, and random phase-shifts, it is
.ii 3 ',
7'C[/.M/;'.*;t/$,7:f'y:[J.p 'e ' mathematically. derived to correspond to a specined response spectrum. De vibmtory characteristics of an actual earthquake tend to oscillate about zero,
,- . -:e_,s g/- 9 whereas arti6clal time histories may show the development of large cumulative
- 4. . .-y ,
- s. ~ i. j ' - valucs of acceleration, velocity, or displacement. De arti6cial acceleration N ~ '
1 time-histories for the PHE were computed by the Applicant using a modified i version of the computer program SIMQKE. Using the acceleration time histories
~. %j - provided by the Applicant, the Staff consultant performed baseline corrections
. in accordance with a branch of SIMQKE and developed corrected acceleration,
' ,' 5 l- -
-- velocity, and displacement time. histories. Fishman et al., ff. Tr. 519, at 910,
, ~
Figs.1,2, 3. De corrected final displacement from the PHE would be 4.83 inches in the east-west direction, and the maximum displacement amplitude
~'
v .
' ]} R would be 16.21 inches at 16.1 seconds. Id., Fig. 3. Based upon these baseline
* . corrections, the Board concludes that the low magnitude of the spent fuel
~
pool displacement (when compared with the uncorrected values) would not ~ signi6cantly alter the results of the suuctural analyses of the racks performed
~ '
by the Applicant.
- 41. . The high-density spent fuel racks, when fully loaded with spent fuel,
(. ' would increase the overall mass of the auxiliary building by less than IE ne
,j liner plate and pool suuctures were evaluated for the new loading conditions l'
' and were found to be adequate to support and transfer the high-density rack f
- 5 ,;
reaction loads. Shiffer et al., ff. Tr.179, at 14 15.
- , , .s. .y e
gy ,s
".E 3 N.O 42. The NRC has established acceptance criteria and design guidance
,' Ws ^..
for safe storage of spent fuel. De seismic design criteria and guidance are S:._4., t Se,- 1 primarily contained in 669.1.2 and 3.8.4, Appendix D, of the Standard Review y _ y -( ( ? '
- Plan ("SRP"), and in the NRC Position Paper, "OT Position for Review
/3 Op , - - and Acceptance of Spent Fuel Storage and Handling Applications" ("Position dfh%,d?f.)4 . h. 2 Paper"), dated April 14,1978. PO&E Exh.12: Shlffer et al., ff. Tr.179, at 15.
- 43. SRP 69.1.2,1 !!!.3.a. requires that spent fuel storage racks be classi6ed M&iN:N M'M ,
la,~h,ffg we. ;m >Tii and designed to Seismic Category I requirements. De criteria for seismic design f/ : M.y-Q
- g. M.;e,..W k. . M,Ih.g.
U ,
. . .y..
and fuel assembly impact loads are provided in flV(3) of the OT Position y., - ej~ .
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,, 5 3 ym
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, ' Paper. Section IV(5) of the OT Position Paper states that SRP $ 3.8.4 provides acceptable procedures for modeling and analyzing the seismic responses of the Oc , ya lC e spent fuel racks. Funher, 6 IV(2) of the OT Position Paper identifies either of two
.- j; ' -
industry codes, IIII of the American Society of Mechanical Engineers (ASME)
>~
>g ,
Code or the American Institute of Steel Construction (AISC) Specification, as being acceptable for deriving the allowable stress criteria for the racks. Other , codes are acceptable based on a case by-case review. Structural acceptance
. ", ~
, criteria are pmvided in ilV(6) of the Position Paper. 'Ihe criteria permit rack W,. . a f.. , . sliding and rack to-rack impacts and provide specific guidance on how such
- @ wC fl { N . j ] ,. ~ ~',i impacts are to be incorporated in the rack design. Shiffer et al., ff. R.179, at h p. . 1516; Fishman et al., ff. Tr. 519, at 12-13; Ashar, Tr. 591,595, and 596.
,~i %y +.y.
., JdX Mf ..g.: . g,.,"p' 4+% :1
- ~
- 44. Staff interprets the OT Position Paper to allow "the possibility of collision of the racks with each other and with the spent fuel pool walls."
w'c ^ 3 Staff's position, as stated in the Position Paper, is that "impact loading should be quantified and that sliding and tilting motions will be contained within suitable geometric constraints." Staff witnesses testified that there is no dispute that
~ M '
'*'[ .- , the Position Paper permits sliding, tilting, and impacts of racks, including rack-
, to rack, rack-to-wall, and rack-to floor impacts. Fishman et al., ff. Tr. 519, at
- s. 1213; Ashar, Tr. 591-92 and 595 96.
- 45. Sierra Club's contention that the SRP prohibits sliding and tilting of the spent fuel storage racks, as well as rack-to-rack and rack to-wall impacts, is not supported except by Dr. Ferguson's interpretations of the SRP and OT Position Paper. On cross examination, Dr. Ferguson testified that it is possible that his interpretations are incorrect. Ferguson, ff. R. 442, at 8-111 Ferguson, R. 465-70.
- 46. The Diablo Canyon high-density racks comply with the applicable seismic design criteria in that:
- a. The racks were designed as Seismic Category I components in accordance with SRP 19.1.2, IIII.3.a. !
- b. The allowable stress criteria for the racks were derived from the
. $111, subsection NF requirements of the ASME Code for Class 3 component supports. Construction materials conform to subsection l NF of the ASME Code and were selected to be compatible with the !
fuel pool environment. l
- c. The seismic excitation was simultaneously applied in three orthogonal
, directions. Increased damping of fuel racks due to submergence in the spent fuel pool was not considered. Local impact of the fuel
.O.. ,
assemblies within the spent fuel rack cells was considered in a manner 9 3J ~ . , . -- x that maximized forces acting on a rack module.
.'J.z.', .'y * ',y ~ I J,4 g d. 'The procedures used for modeling and analyzing the seismic re.
< , . . g ,,: 7 _ w ,
, sponses of the Diablo Canyon spent fuel racks were consistent with q :.6y'd::q .
t
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- 189
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*. i' i ' ' ',
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e
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?q4
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. . . - . . . . , . . . T s L- '
in: ~ u ~ M ~- ~ -- ' l uw:x w G 1,:.a .a . . .us: w uw. f ,L;- / ; ,i-;% 7, , q..;
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the requirements of the Position Paper. The models were developed
- d,1}
c - based on current engineering practices.
. xl e. The possibility of gross sliding, tilting, and rack impacts under the postulated Hosgri event were evaluated in accordance with the
'" ~L '
acceptance criteria specified in llV(6) of the Position Paper, j f. No exceptions to acceptance criteria were taxen for the design of the N .j high-density spent fuel racks.
.j Shiffer et al., ff. 'lY.179, at 1617.
- 47. The analytical process used in the design of the racks consisted of:
4
~ .(
- a. Development of a nonlinear dynamic model of a rack module consist-h , c ? .- r' X ing of inenial mass elements, hydrodynamic coupling, and gap and friction elements; 9;.
7'(j.f. p;. ~
^ ^
- b. Generation of the equations of motion and inertial coupling and 1, , ,
4 7, . : . 7, . solution of the equations using a computer program, DYNAHIS, to
," i: ~
determine rack forces, moments, and displacements;
- c. Computation of the detailed stress field in the rack (at the critical locations) and in the suppon legs using the forces, moments, and displacements calculated in the previous step.
- Shiffer et al., ff. Tr.179, at 19 20.
- 48. Using the methodology described above, Applicant calculated the po-tential loads on the racks. These calculations were performed in conformity with
- the loading combinations and acceptance criteria specified in the NRC Staff's Position Paper and 6 3.8.4, Appendix D, of the Standard Review Plan. The load-ing combinations included the combined effects of dead load, live load, thermal interaction within the pool, and inertia loads due to seismic events. A series of rack loading cases (fully loaded, panially full) was considered in order to estab-lish the design loads. The resulting stresses in the racks were determined to be lower than the allowabl6 stress values permitted by acceptance criteria. These allowable values provide a sufficient factor of safety when compared with the 1 ultimate capacity of the racks. Shiffer et al., ff. Tr.179, at 20.
- 49. Conservatirms were incorporated into the modeling and analysis per-c !
formed for the high-density racks in terms of modeling assumptions, postulated loadings, and safety margins on stress allowables. Several of the conservatisms inherent in the design basis analysis are:
~? a. Adjacent racks were assumed to move in a manner equal and opposite
< (out of pliase) to the rack module being analyzed, thereby maximizing
' ' the potential for rack to-rack impact.
- b. A value of 4% structural damping was used between the fuel as-
' semblies and racks, between adjacent racks, and between racks and
~ l, _
~
',g $ walls. A value of 10% for impact damping (in addition to structural
- 'g'.. , ce damping) has been used at other plants licensed by the NRC. The
.' J c. , f -
analyses neglected fluid damping.
;~c' ,.f ' ' ,, ,
~
- n. , J. ~:. w , -
e.
% [ ~
. C - < '
190 a g8h9 5*-4 W sm+g4 g g g g g age q.m_a,.p gga ega -.. , , q , D* *&, -W^,A M=#N8-W**F
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=
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.1
. x fy' . < -
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~ . .
. s .;
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- .J.. :. w - " m " ~-: ^ -' ' ~ " " M
- QmJL ,/,, .. . . .
~.; a . l l 2 ) G.
y '.j.. , s . g ,. --
.c ,
;:. g , '
. .s ;
q- ,
.' c. The impacts between cell walls and the fuel assemblies were assumed
, to occur in phase. In reality, the fuel assemblies exhibit complex and
# random behavior. However, they were all assumed to move in unison
_ 1 1' n' so that the maximum response could be obtained.
, d. The form drag due to the geometric shape of the racks opposing their a
~ '
' ' ' d d motion within the pool water was conservatively neglected.
,. _ c. The fluid coupling coefficients were calculated based on the con. -
4 - servative assumption that the adjacent rows of racks are an infinite j distance away (the distance measured perpendicular to the direction
, y [, : '
g of rack movement). This reduces the "cross-coupling effect" of the l y[ c
} ,/ - , s adjxent rows of racks and yields conservative displxements and im-
..; ^ .~, pact forces.
,' . "b
/, '
. f. The calculation of fluid inertial effect; included an underestimate of
. G * , , 'J.1 .. the fluid kinetic energy and resulted in a conservative overestimate of
~
rack displacement.
; , g. Hydrodynamic coupling coefficients used in the analysis neglected certain nonlinearities of the motion. Studies in the literature show
.; that incorporation of these nonlinear effects would significantly lower 1 rack response.
~
. .! /d at 20 22; Fishman et al ff Tr 519 at 21 Singh, Tr
., . . , . 197 .
- 50. The racks were designed and constructed using the approved acceptance criteria to maintain the spent fuel assemblies in a safe configuration for normal j and abnormal loads, including potential impacts between racks and between the j racks and the fuel pool walls, which may occur during a Hosgri event. Shiffer et al., ff. Tr.179, at 17.
, 51. The analytical model developed by Applicant for high density rack anal-ysis was a nonlinear dynamic model and appropriately considered the potential effects of the following possibilities: movement of the fuel assemblies, fric- {
tional resistance at the base of the rxk, rack sliding and rocking behavior, rack I
~
uplift and subsequent impxt on the bearing plate, and rack impacts with adja. cent racks and pool walls. In addition to the potential rack movements addressed l
, in the analysis, fluid effects, known as hydrodynamic coupling, were also con.
, sidered. Shiffer et al., ff. Tr.179, at 17. {
$2. In addressing rack sliding benavior in the model, friction coefficients of
' O.8 and 0.2, which bound known experimental data, were used in the analysis to maximize the inertial force and horizontal displacement, respectively, of the
?, ,
racks. This wide range of friction values is typically used in the industry for l rack design. Id. at 18. While spatially varying coefficients of friction were
- g ( ,' _ .
not explicitly utilized in the model, use of the bounding values (0.8 and 0.2) v/1. ; . ..
" - >
- i
,~ , would cover possible effects of varying coefficients of friction as a function of
- M ~
,t '
'l { - position. Fishman, Tr. 586.
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,;' -. A' ;, , <
<y -
' a e.g,9; .
W.s s
.N q "El ~
~
' ~
- 53. Fluid inertial effects; produced by rack motion, were also addressed in
/
9 the model. In particular, the accelerating fluid mass results in two types of iner-t . tial effects. As a rack starts to slide, the water inside and surrounding the rack g,, w
.$ ^
is set in motion. His produces an additional inertial force on the rack, which (,', {M i
' . < .'P .- was addressed in the analysis by adding an appropriate amount of water mass, known as "virtual mass," to the mass of the rack and fuel assemblies. De sec.
, c
'~
ond effect of the accelerating fluid mass is hydrodpamic coupling. As the space between moving racks or between the racks and adjacent walls is reduced, the
' , q:j fluid between the bodies is expelled from that space his causes fluid pressures y
47,- . 79 $E,' ' 4[ ' h j ' -
' ' ' to develop on the surfaces bounding the fluid mass, which retards the seismic motion of the racks. De effects of the fluid motion on rack dsplacements are i
6 ,% f l jQ J n' determined by the kinetic energy of the fluid. By underestimating the kinetic
, y . .9 %. #" N %C
( ',
'f. M .u energy of the fluid, rack displacements are necessarily overestimated. If the ki-
_' Y. .' [c ,. ~ 7 -
- n. '/. netic energy of the fluid were ignored completely (e.g., assuming the absence
' - ' ' of fluid), the rack displacements would be grossly overestimated. De calcula-
tion method used for rack analysis includes fluid motion but underestimates the A ,: fluid kinetic energy and, accordingly, overestimates rack displacements; i.e., the c.y; calculation method is conservative. PG&E's use of virtual mass and hydrody. '
namic coupling in the analysis is based on the fundamental principles of fluid f'~
~
dynamics. Shiffer et al., ff. Tr.179, at 1819. !
,f 54 Fluid coupling effects in the model were derived based on the funda.
' mental theories of hydrodynamics, known for well over 100 years, in terms
~
of Lagrange's equations of motion and continuity for frictionless fluids. In the derivations for various rack to-rack, rack to-wall, and fuel to-cell wall config-
'] urations, the kinetic energy of the fluid flowing between the components was s
~l computed using calculation methods that linearize the fluid coupling coefficients s -
J '
. { and undere, stimate the fluid kinetic energy. Since the seismic energy must be balanced by the kinetic energy of the l'c.!d in the pool and rack components,
- , the dynamic motion of the components is overestimated, which, contrary to
-c. the position of the Sierra Club, overestimates rack impact forces and result.
~
ant stresses calculated in the model. Further, the calculation methods employed 3 , other conservative assumptions, including the assumption that adjacent rows of racks are an infinite distance away, reducing "cross coupling" effects. Fishman
,^ . 7 et al., ff. R. 519, at 21; Fishman Tr. 596 97; DeGrassi, 'n. 597 98; Shlffer et
,, s ,. K,.:. ,
al., ff. Tr.179, at 2123; Singh, R, 222 23, 248 51,261; Ashar, Tr. 598 99.
- 55. Several parametric studies were performed by Applicant that included i - both simplified and complex two-dimensional, single and multirack analytical l f'
models, as well as enhancements to the original design basis, three dimensional, l M -
' 4:, ' ' f q... ( r j single rack model. The results of these studies confirm in all cases that rack I
impact loads and stresses due to the postulated Hosgri earthquake are below $' $f(if.14 g. j.[ ' [ E/ [p Q.yy allowable values. Fishman et al., ff. Tr. 519, at 22. Derefore, the design-
..?.%d[J g basis evaluation was conservative, and the high density spent fuel racks satisfy W y A 'yg.-f
_ : f- 4%.,7'yQ, ?
+:
Q* $ e i ' l
~- 192
. x . [.
. .. v I *n'
- mg #
.4
}
! l
.> \
..,...,_-,...m.,~..,
- -- - - - - - - -, . a , m _r . m r w- -- - mm ~ ~ ^ - > $ - > )
. j
' ,s
~
.v; s.{*
i
. ( l
, +
q
~
. , lU L'
- s. , , ...w _Q.s ~,
'!.- j
y ,, '
~
-T i s - . ,l**
.N.f l ;
.' ,iJ;,'A, .; * ' , m -y , g y * . . . ,
.g
+
, ,; g , j
, ' P .' . #,4 L* '."".'.'8 j '. [ , / -' , , , .'~..) -
* ', f - '
,,+/-
,2'* Iy!4 *"*r s e *!t 32 ec } ' ' 1
,' #>fy'. -y ' ;".
. S ? ', , ^ ' ( , i , ( ' , i /t. 3 '.k" I (-T.. T ,.; , M - [,
, , ' .' j 1
- ( 'g- * ; 'e , O,uf[ ' ' > + ' [,v
. U t. ! - K
& ?2 4..'
.w c.- ,
, .q :. .s, w,
'rf,5.Jv'*.j,4'. " ' ' ., q 3 s - ' g, L- 2 ym y
~.ly*
, s=: -
1 .0 . cf ' T ' X; acceptance criteria and will maintain their integrity for the postulated Hosgri
,, N ,
event. Shiffer et al.i ff. 'lY.179, at 34-36. 4
.w .'q" 56. While impact forces are important to the design process, the stress y ;. ,
ratios are more sign 16 cant in that they better reflect the effect of impacts on
,. 1 ,"f' .
. the racks. The controh 5 stress ratios for the racks have an allowable value of
-W m.,
- 2.0. The highest stress Lio for the impacts determined from the design basis
, ;4 f analysis was 1.436. For the impacts determined from the parametric studies, the Nghest stress ratio was 0.743.Thus, the design basis evaluations were shown to
- - be conservative and bounding, and the rxks were shown to accommodate the
_ : impact with acceptable margins. Id. at 36; DeGrassi,'lY. 526 27.
. -j g. n,
- 57. In evaluati g the walls and the rack components, impact loads were
, g[/ . .r u
"~
. conservatively assumed to be static. No credit was taken for the short duration g '.;t Q f Ma,;_ y J + : i '
of the loading. Stresses derived from these calculated forces were significantly 4 , . Uf:,3 _ smaller than the stresses that the racks and walls are capable of withstanding
~
' - .- 1 m. .
E; without any adverse effect. Shiffer et al., ff. 'lY.179, at 36-37.
- 58. Because of the conservative assumptions and methods used to analyze rxk-to-rack and rack.to-wall impact forces, the resulting impact forces on the racks bound those that might occur during the postulated Hosgri event. Id. at
,' ~
37; Fishman et al., ff. 'lY. 519, at 15 16.
- 59, if a rack should impact an adjacent rack or the wall, the impact force would occur at the girdle bar or at the baseplate. The fuel rack strength at the girdle bar level is significantly greater than that required to resist the design loads. As the rack impxts the wall, the rack girdle bars perpendicular to the wall would be loaded in compression by direct bearing. These bars can sustain a direct impact load greater than 175,000 pounds e.ch before the onset of yielding, 3
and incipient failure occurs at a load of at least twice the yield force. The impact resistance along the girdle bar that impacts flat against the wall is greater than J 20,000 pounds per storage cell. With regard to the baseplate, its resistance is substantially greater than that for the girdle bars. Shiffer et al., ff. Tr.179, at 37; see Ferguson, ~1Y. 488 89.
- 60. Rack failure would not necessarily occur even with impxt loads larger than the allowabic loads. The NRC Staff agrees with PG&E in that such failure is highly unlikely due to the reserve margin between the onset of yielding ant.
incipient failure. This yield to-failure relationship is typical of ductile structurrJi s materials. Fishman et al., ff. Tr. 519, at 16.
.u '
- 61. Between the allowable impact force and the force required to cause c large permanent deformation of the racks, there is a large reservoir of energy.
1
. absorbing capacity in the rack modules. Id. at 1315; DeGrassi, 'lY. 526 28; Shiffer et al., ff. 'IY.179, at 34-39; PG&E Exh. 2; Singh, Tr. 204-05, 210-I1, M ; I, , 213; $ 6.9 in PG&E Exhs. 3 7.
m : ' *
.-) J ' g* $ l V.h *q ,
a *' f
- r. . . ' .m , . ' b .
y,- p
;) _ (, p ., ; . '.,,j j .
v , .
,.r. Is *
', + ,." * ^
s ij gg3 a
~ :e ,
c - . ~m . o.
}
h,, *
- M oppa .e e eq -, ginggyei. p q, gy.q 99e y g g.ggg +9,,. f,, ,g,,,,. en,.m+- e**6 em ,% pr e-9
% {
i
+ 4 1 ,
1 w b, , [ ,
,~ _ , ..
O $ g
.~. .-
', m y .'p - pu
-> ; , , ~ - . ,
u.- .+ .w u .w.~ a ~_
- w.
y,;..K w x.w. c..:. :2a ~ _r. x ., . x. . J. ..a:.:
.f, ~ D. . .'.; o .
., . A ;; W
_ s .. ' T , g' , .-
'.f w >
" ^
y ,
- ; .' 62. The Sierra Club no longer maintains that its calculations that yielded
- J
~
impact forces larger than the allowables listed in the reports are accurate and reliable, and show rack radure. Ferguson, Tr 478-79. 1 - s .
- 63. From Table 6.8.2 of the Reracking Report (PG&E Exh. 2), it can be determined that the largest calculated impact force between a storage cell
.". and a fuel assembly is 249,900 pounds or 28% of the allowable 883,000 3
pounds. Similarly, the maximum calculated impact force between racks is 105,000 pounds, which is 60% of the allowable 175,000 pounds. 'Iherefore, e
- significant perraanent deformation and other damage to the racks and pool walls g .; . -
will not occur as a result of the PHE. Fishmen et al., ff. Tr. 519, at 14 15; Shiffer
- +' ;4
,m.
a.. ' s-; , ., , A; .; , .3 , . et al.. ff. Tr.179, at 35 39; PGA.E Exh 2, il6.9.1 and 6.9.2, Tables 6.8.1 and
. ' ? .. ... 3 .-+
. 4" .'.
s
,~9 ;
- - w.
- c. 6.8.2; PG&E Exhs,3-7; Singh,'lY. 211,213.
,_ ~;y,..i ,' oy j .
s 0.. 1- .
;,'e,,
; ~-).*
- . " L .lu ..
A
. ':, , Contendon II(AX4)
- 64. Contention II(AX4) provides as follows:
- - h is the conternion of the Siens Cub that the proposed reracking is inconsisters with the
+
protection of the public heahh and safety, and the environment, for reasons which include
~t' the following:
A) during the Pile collisions between the racks and the pool malls are expected to occur resuhing in: 7
- 1.] . ..
I 4) reduction of the spacings between fuel assembtics.
'l 1
; 65. While there may be minor local deformation to the racks or pool walls
, , j during the postulated Hosgri event, there would be no permanent deformation or other damage that would lead to criticality, damage to the fuel, increases in 7 , j heat generation, or radiological releases. Shiffer et al., ff. Tr.179, at 38-41; Fishman et al., ff. Tr. 519. at 1418, 32 33; see Findings 39-63, supra.
. Contendon ll(AX5)
- 66. Contention !!(AX5) provides as follows: ;
, l
" h is the contentim of the Sierra Qub that the pegosed reracking is inconsistet with the y3 '
> protection of the public heahh and safety, and the environment, fcr reasms which include
., the following:
r
.}
' ~> A) during the Pile, collisions between the racks and the pool walls are espected to
]
, . .t ,
occur resuhing in:
- ~ 1- . eee
, 3; i, s - - , n l' - 5) increase in the nuclear criticality [ sic; reactiviryl coefficiers k(eff) above i9jv 1 .
9.j' ;;q.} ., ,
' '"- o.95; X ' , y , .&~ '. , .. . ' , - m.jQ v :
t
'L
~
.,n, s
, ~?
- 8 ,
. . '- .( .
- v. ,
- .:,' r 194
~'
4 , 1 3 , { l e .? e '=r*N 'u d=
% y.e.e= m ene g s e me+ ene .. ===***sN*.-ee**pe=.,% g*=7m.*=*- y
- Wi.g 4
.s E-
$ "a
, 4 -
W Y -f. ,
' . - * ~
, , 9._ '
' '^ #
%- .,s.'- *
.( '"
. . , , .gc
,o ,
e .
' s' ,
, :-, b . ? , ,,; a
, ... y . ' g ., -
..z
"'a--""3--~~-~
~ ,~: y [ " " ~"'"" """-"- " -* "" "
]m!; h iQ ,1yi 6. q . . a y +
,y ,
a ,
, (
/
f
'e V
,'\
s
* / 67. Criticality analyses were performed for the Diablo Canyon high-density
'f.. s _. ,
e " ' ' . spent fuel storage racks to ensure that a ke rt equal to or less than 0.95 is maintained when the racks are fully loaded with fuel of the highest anticipated
, -g reactivity in each of two regions and when the pool is flooded with unborated
.j,. ',
; water at a temperature corresponding to the highest reactivity. Fishman et al.,
s. ff. Tr. 519, at 32. The maximum calculated reactivity includes a margin for
# i d uncertainty in reactivity calculations and in mechanical tolerances, statistically l combined, such tha.1 the k,ft will be equal to or less than 0.95 with a 95%
,% probability at a 95% cortfidence level. Shiffer et al., ff. Tr.179, at 40.
. .}
.<g ', ,.
', " 68. The Diablo Canyon spent fuel pools will be continually maintaincd at
,y 7, _ .
# W
' a boron concentration of at least 2000 ppm as requised by the plant Technical Specifications. This soluble boron not only provioes an additional and very
, ; pj-ji.. D," T Qg large suberiticality margin under normal storage conditions, but precludes the
. g . cc hts g,. ; , j possibility of exceeding a k,ft of 0.95 under credible abnormal conditions,
'f. ' g.f-iW'L,.v;.' ',
* " including the postulated Hosgri event. Shiffer et al., ff. Tr.179, at 40-41;
, j .W ' s
,'... I* -
' - Fishman et al., ff. Tr. $19, at 31.
- 69. The spacing requirement to maintain kett less than 0.95 without borated
'( ' . '
1 J water is essentially the fuel assembly spacing in the rack design (10.93 inches). i based upon the criticality analysis described in { 4.0 of Applicant's Reracking i'
.. N' Report. PG&E Exh. 2. With borated water normally present in the spent fuel pool, the k,tr would not reach 0.95 until the water gap between storage
~
cells in Region 1 (nominally 1.786 inches) has been reduced to less than 0.1 inch uniformly everywhere, an implausible condition. While analyses have i
- 1 demonstrated that significant rack deformation would not occur, even if it 1
wre assumed that there us zero gap between storage cells, the resulting configuration would still not be critical. In Region 2, reducing the gap between
- storage cells to zero from the nominal 1.9 inches would not result in k,rr ,7 ,
exceeding 0.95. Shiffer et al., ff. Tr.179, at 41. ( s
- 70. With unborated water in the spent fuel pool, the highest k,rt, including an allowance for uncertainties and manufacturing tolerances, was calculated to be 0.920 in Region 1 and 0.938 in Region 2. Both calculations are based upon conservative specifications of fuel enrichment and burnups and provide suberiticality margins greater than that required by NRC regulations. With the normal concentration of soluble boron present (2000 ppm), the safety margin l below criticality is much larger, with the maximum keft being less than 0.75 l
' " in both regions. There are no postulated collisions or plausible reductions in l
> spacing that could result in k,rrexceeding the limit of 0.95. Id. at 4142: Fishman et al., ff. 'IY. 519, at 34 35.
^, S g .,
? * * * *
' i s , , , ' _
, t [- f .
-f ' }~;l/ k(. . . . ' .3' y i#I '9
." e. m3 , _
e
'j. ,
. 4 g; ,
! = '
.' N 195
.n . w ,
s .
* , s i
J s 4
$g - b. 4
. . . . ' - b
' f ._g o
\ . /, 1
* . , - + 8 3 , , .y*. ~ ,. 7
. - ~ ; '. ,
- s, 'm l ] 's- ' " * '
;',~.,*2 ' i *[.'lf ;' ; , ',
, ':/ ,
i ; :,j ,
;. ;Yi ;:g
-9*,,'.
- ? .o ;
r i
.X .s . ;;. w . w . a. a u . .
? _t,- : [ -
, - &, a a u..: . . G s w : w : x ..u. a .. - : : s y ; ;, ' :
2.y. y wM .
%.M. ,y %. C .
.., .s
. : ..x - - .
w
~ ~
;: 7 i
' n.
> ', ,' L , - Contention ll(A)(6) e . ~ , .
3 71. Contention II(A)(6) provides as follows: q
^
j 7, -*. .
'. s. 4 h is the contenticri of the Sierra Cub that the proposed rersching is inconsistent with the
. ; cs ' ' protection of the pubtic heahh and safery, and the envirorrnent, for reasons which include C '
< 1 -
the following: , q a A) during the Pile, collisions between the racks and the pool walls are expected to
, occut resuhing in:
9 _ . . .
, e
' .I
- 6) release of large quanuties of heat and radiation:
.w w , - -
- c. _,.: .. , .ty.
";EO,p y ' :.j.
.z. . ICR . 72. Any postulated condition that would cause the release of radiation would
.gg cg;. * ; "
M% require the fuel cladding to rupture; however, fuel cladding rupture cannot occur
' x ? . . ..
- v , . . ,
unless the fuel assembly grids are crushed. Ibr Diablo Canyon, the calculated l * . *, - <f T '
;, ;,,a
- 4 ro impact forces are not large enough to cause crushing of the grid and rupture of
'be .
m: the cladding. Shiffer et al., ff, Tr.179, at 42. e.- 73. During the postulated Hosgri event at Diablo Canyon Units 1 and 2, due F - -
" to the motion of the rack module relative to the motion of the fuel assemblics,
. ,e the fuel assemblies in the spent fuel pool storage racks could contact the stainless
~
'. steel walls of the storage cells. However, the maximum impact force on a fuel assembly grid has been calculated to be only approximately 1700 pounds, and the
~
maximum fuel rod a bending stress has been calculated to be only approximately
, 800 psi. Id. at 42 43.
74 The structural integrity of the fuel assembly was evaluated by com-paring the calculated forces against capacity determined from analytical and experimental data. Specifically, the maximum impact force on the grid, the fuel rod bending stresses due to flexure, and the fuel rod local. contact forces at the grid supports were evaluated. The calculated local stress levels caused by the reaction force were well below the allowable stress levels in the fuel rods, ensur. ing that the integrity of the fuel cladding will be maintained during the Hosgri event. Thus, the integrity of fuel assemblies stored in the high density spent fuel racks at Diablo Canyon will be maintained, and there can be no resulting release of large quantitles of heat and radioactive material. Id.; Fishman et al.,
- ff. Tr, 519. at 31.
u . - Contention ll(A) (7), (8), and (9)
~
e
.~ . .c . .
- 75. Contention II(A)(7), (8), and (9) provides as follows:
k f ,, y , h is the contersion of the Sierra Qub that the prwosed reracking is inemsistent with the g- [, , . - .[., m . prcsection of the pblic heahh and safety, and the environrnent, for reasems which inc!wie 4.. e , . ' Of , f .
'b
. the following:
*,. '. n a*
- D 7. .f, s
~
't,
* * ~ <
- r.* i < w, . . * "; _ . ' s .
Q, , s 4 *' 4, , . -5* j, a; -
.f - '
196 Y s , si , i.
......,....~,.n..-~~ 4-~.. = -- - e .== - s =,-; *7*'-
. ,i e
I 4
, , e O ,4
. t e s
, 4, m 29 h - _ g. s 4 y
'\ - C; . , >e wi, s ,
s
+
*;y i [ ' i
( , ,
;, w s, , .w. A .a.... a.:..-a,=. w u . m.L ~. .- M a ' ~.:Ls. &e 5, UA.~ . ?. LG)-Q' % : .'c : e ., ; ' ,.. o yq' ' ^ " :f.;' ( ,. g, " .
.;.p; . T , a ' 2 C. 4 . 49; 3
;' _ , e r ;
_ s. , . ; '. ~;' : (."< , ; 8 3., , A) during the PHE. collisions between the racks and the pool ws!!s are expened to
'.J2 s4 / ~.j occur resulting in:
r, , ' ta eee e a '$
- 7) radioacdve cortsminadon of the nuclear power plant and iu employees
' , . . , . . y c.
~ 4 ,
.l.i. i
- q. , ^ .y -] above the leve.: permitted by federal regulations;
, .- 's- +
^ j'" ,
7- 8) radioactive contarninadon of the environment in the vicinity of the nuclear .
. ~;, .i, ,j .
' power plant above the levels permined by federal reguladons: and "y y j
' =
- 9) radioactive contarninadon of humans and other tiving things in the vicinity A
-{ of the nuclear power plant above the levels permined by federal regula.
, . , .4 aj - s; tions.
."o-y-
, ;4 '- .: ,j, . ' ' ' <
y< ^* E P . M . M .;. ' 'n ,,*'
, - e 76: The racks have been qualified to withstand the impact loads that may q'
M yG'y't n; result from collisions between racks and pool walls during the postulated Hosgri
, , /, h c N [. [ '" c R[ ',i " '. '
^
; earthquake. Therefore, no damage to the fuel would occur, and there can be no
. i 9 f,* ' , - V. :f. . Av.'- %.,X '
resulting releases of large quantities of heat and radioactive material. Addition.
- u. ally, the racks will maintain the fuel assembli6s in a suberitii.al configuration
'7q' -
- O ,
'. ' /, ,
even during any such collisions, and releases due to criticality in the pools
.C . .
. s . ; 4, ,
cannot occur. Consequently, no radioactive contamination of humans and other
* !~ V living things in the vicinity of the plant above the levels permitted by federal
^ '
c- - P regulations would result from collisions between the racks and the pool walls during the postulated Hosgri earthquake. Shiffer et al., ff. 'IY.179, at 45.
'; Contendon ll(B)
- 77. Contention II(B) provides as follows:
' '} . h is the contentice of the Sierra Cub that the prcposed reracking is irconsisters with the
> 'I protection of the public heahh and safety. and the environrnera. for reasons which include
+ the following:
eee
- B) during the Pile collisions between arcups of racks with each other and/ci with 4 the pool walls are capected to occur with resuhs similar to those desenbed in )
, I!(A) above. l
\
l f ' fn 78. Because of the dissimilarity of the racks (in terms of geometry, toler.
.._. 'M * ~
ances, and gap spacings) it is highly unlikely tnat groups of racks would move as
. >g; ..
a unit under a random seismic motion. Shlffer et al., ff. Tr.179, at 46; Fishman et al., ff. Tr. 519, at 19. s. y 9- 79. As a result of questions raised by the Brookhaven National Laboratory in the context of its review of the Commonwealth Edison Company application 7- ,
. j p j r ! q .y. 3 13 y, , ,
to rerack the Byron spent fuel pool, the Applicant was requested by the Staff 3'? 4 ..., 4 . %g , , to perform a number of analyses to demonstrate the conservatism of its single. .. M9g ;[.y Kef%i rack model. In particular, the Staff was concerned that the impact forces due to j
~.. ... . r- m e .
',,L., s ~,
l { 3 {lly v , , , .. ; m
, [.g. .y c s.;
I
$ . .N ,
,s s. . . , , m 197 c.
8 4 ,
- t ,# A ,
m .
* , fg
' - -~ , 7 -ey .* --a b...,e,. .
..m..--.,- ,c..--. . - . . . .
a .
. 5
,, , g
*r s. ' .,
,s i4 ,, .
y \ ,s .$ r . .
.,f' . . " + .. ,
,~,
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l
~
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{* r {#' l , s
ANLLIA d"Ad5~N5O7 $h.p. %~hh.n.Y.Y. u s
..~.,;. ._,.
- h. ,,
; s - m.; y ?. _ . _ ,
, ~
, ,.~ ~bb.$r -..ry$4; 4
. m UMYY A"' S&
Mf, m.;.d
' ...<y pg .c. !y a; .
.. .,4W:
e..
. * > ,,;.,.f._
C -
- ,, s g., y. y
. 9 , -
e l u.p ;.;y ; ~
< ': : - xp . ;
;;u 1;"'
f., f l '. &, multirack impacts could exceed the forces computed by use of the single-rack .c "'"g . . . , model. Fishman et al., ff. Tr. 519, at 21, 23-24; DeGrassi, Tr. 526 28; Singh, , 4 - A. f;; ' g, Ji p U.$ [ . Tr. 329 33,335-36. 4, m .../
.o % . 9e . a .!NJ, 80. The Applicant conducted several multirack parametr c mulies ad sub-mitted these to the Staff for review. PG&E Exhs. 3-8. Dese analyses were
~, T T' '
' ' 1^. ~
w. J.' - i, .l .i reviewed by the St4f and its consultants FRC and BNL, as reflected in their
,q. S : x D: 7 respective Technical Evaluation Reports (TERs). Staff Exhs.1 A and 1 B; Fish. .
'~<:,' man et al., ff. 'IT. 519, at 22 23.
~
w.'.. d, ' % O 81. The parametric studies on multirack interactions utilized realistic mod-
. 4 4 ! :c..,
f Kf,,gp eling assumptions and evaluated variations of all key parameters that might
.idOOY y,$]M$UK ' 8 f' 9-M, d@ affect the quali6 cation of the racks. Some of these parameters include loading ,
of the racks, hydrodynamic coupling coef6cients as they apply to the, specific l
,. c.,y, K . pgift ,;j X' 1: ,,, ^A.W <.. *
- location of the rack, manufacturing tolerances, and friction coef6cients. Dese
( , , M .,. m S ,- % - W U T." ~ studies show that the loads on the racks are comparable to those predicted by the
'. . _ .?N 3 -
."> design basis analysis, and, in all cases, these loads are signi6cantly lower than
- IfI the allowables. Thus, the parametric studics confirm that Applicant's modeling j".O ' . -
- j. -
E. assumptions in the design-basis analysis adequately represent potential group N behavior of the racks. All potential collision conditions under the postulated Hosgri event are bounded by the loads for which the racks have been quali-
~ '
p ' fled. Shiffer et al., ff. Tr.179, at 46-47. ,' f ..
- 82. The Staff concluded, on the basis of its review, that the rack to-rack, r a ,
. fuel assembly-to-rack 'and rack-to-wall impact loads were within the respective
'. allowable impact loads. Fishman et al., ff. Tr. 519, at 18-24: Ashar, 'IY. 508-
- ! 99. De Board Snds that the Staff's review confirms the acceptability of the proposed rack design.
^ '
* ~
CONCLUSIONS OF LAW 1 . s 1 his Board concludes as a matter of law that:
- 1. With respect to Contention f(A), Pacific Gas and Electric Company has e1
' submitted sufficient information and data in support of its license amendment
.' application to verify that the reracking is consistent with the protection of the
- , , y public health and safety, particularly with regard to the expected velocity and
- displacement of the spent fuel pools and the racks during the postulated Hosgri
-J' -
s H '
.f
. earthquake;
- 2. With respect to Contention 1(B), Paci6c Gas and Electric Company
. ,c' : , J o y c. - .'
s * ^ has submitted suf6cient information and data concerning relevant conditions, 7 . 7M +
.. N - phenomena, and alternatives to conclude that the reracking proposed will
- j 'O M,.E _,i . ... h.Q :.;.Qf M;;;3 adequately protect the public health and safety, particularly with regard to:
, M- y ?;W alleged resonant behavior of the spent fuel assemblies in the racks during the 7f.3.y.
& ,3 .-
SMf, ?g3M. ' ' ' .o.
. .M. . ?/.M ,,.ej:?g; . postulated Hosgri carthquake; the absence of alternative onsite storage facilities;
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- 3. With respect to Contention 11, the proposed reracking is consistent with
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- . the protection of the public health and safety and the environment, and neither
.. _ the postulated collisions between the racks and the pool walls nor between
.j groups of racks with each other or the pool walls has been show to result in e 'l the harmful consequences alleged in the contention; and
.1 4. The evidence adduced in this proceeding demonstrates that, with respect
+ to the contentions considered, Pacific Gas and Electric Company's application T, - , ic ' ., ' k. to rerack the spent fuel pools at Diablo Canyon in a high. density con 6guration jk. . f. ., >fe- , will adequately protect the public health and safety and the environment and that M the application otherwise meets or exceeds the requirements of 10 C.F.R. Parts 1.%
' ' '$ . i;y{ g , y_', , ,, " ,J
"' 11 ,
50 and 51 and related Nuclear Regulatory Commission regulations and require.
-q
- 4. . .
., ;31: .u . , ; ments. .
, ,.,,.s. . v. v m.
,. ,. - , ' ~
ORDER 1 .
/-- , For all the foregoing reasons and upon consideration of the entire record in
> . - :,) this matter, it is, this 1Ith day of September 1987,. ORDERED:
v.: j 1. That pursuant to the Atomic Energy Act of 1954, as amended. and the
. 'i Commission's rules and regulations, the Director of Nuclear Reactor Regulation
, '~ .
is authorized to issue to Pacific Gas and Electric Company amendments to its Diablo Canyon Power Plant Facility Operating Licenses Nos. DPR.80 and DPR.
, 82 which revise the Technical Specifications to reflect the installation of the new l spent fuel storage racks applied for.
- 2. That pursuant to 10 C.F.R. 6 2.760 of the Commission's Rules of
' ..' '
- Practice, this Initial Decision shall become effective immediately. It will constitute the final decision of the Commission forty-five (45) days from the date of issuance, unless an appeal is taken in accordance with 10 C.F.R. 6 2.762 or the Commission directs otherwise. See also 10 C.F.R.16 2.764,2.785, and
. 2.786 (1987); and
~
- 3. That any party may take an appeal from this Decision by filing a Notice of Appeal within ten (10) days after service of this Initial Decision, Each J . . appellant must file a brief supporting its position on appeal within thirty (30) days after 6 ling its Notice of Appeal (40 days if the Staffis the appellant). Within 30 days after the period has expired for the filing and service of briefs of all
~.;
i appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a brief in support of, or in opposition to, the appeal of
< . . P
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.. .o>,., :a'. c X 4, W- ',3..c,. O THE ATOMIC SAFETY AND p...+ .
LICENSING BOARD
.g..--
. i
- . s, z.y. _ .
mi
> _ .t . ,
.I g y B. Paul Cotter, Jr., Chairman
. _ , .g ,
, ' "; , , ADMINISTRATIVE JUDGE j rP_. s #
/. . .. .~..:+ ., ;
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Glenn O. Bright *
, q 1..c' W. '^ T!: ADMINISTRATIVE JUDGE a .,76.J s ,.
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. . ....s. --' . ' ~ ,. ,
Jerry Harbour
. ~ , ' ' '
. - .] t
< ADMINISTRATIVE JUDGE 2: . ,
- J:- Dated at Bethesda, Maryland, .
s. this lith day of September 1987. e
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19:;_.'., the Initial Decision at me tiros d imance. d ,' t, ' % + " "[-' 4 ,* w * ".$. .' V's il 6 [.ay>Y ;f. : . ,.;,K' <*; a : , . . 1 , ', V ? ,
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Cite as 26 NRC 201 (1987) LBP-87 26 s,.
. . _ . .:s
- , . J, 3 UNITED STATES OF AMERICA
. p 'I NUCLEAR REGULATORY COMMISSION
" ; %. ?%., g.:;? g l n
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.l q ATOMIC SAFETY AND LICENSING BOARD j
').,
i Before Administrative Judges:
.q ,
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% - , r iA- Morton B. Margulies, Chairman
,$ .T i , ' h , '. l,x 9 ? * /. Dr. Jerry R. Kline
- D ' ' ,. C -
Mr. Frederlek J. Shon
< c.; ,,, ,-. :r . ~.!.y ,
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, :9.- , . , .:.. ?. . .
, , . ,+
. ,s
.. ,' in the Matter of Docket No. 50 322 OL 3 (ASLBP No. 86 540-08-OL) 7 .
(Emergency Planning)
. _ . -1 LONG ISLAND UGHTING g
, f'j COMPANY (Shoreham Nuclear Power Statlon, g)j September 17,1987 Unit 1)
The Licensing Board denies Applicant's second renewed motion for summary
, disposition of the "legal authority" issues for failing to meet the requirements of 10 C.F.R. 62.749; denies Applicant's motion for leave to file a reply to Intervenors' answer to Applicant's motion for summary disposition filed under
~
6 2.749 for failing to make the necessary threshold showing; reviews applicable
' ~'
.l law on summary disposition; and interprets rulings made by the Commission in CLI 86-13, 24 NRC 22 (1986), involving the remand of the realism argument as it pertains to the "legal authority" issues, and the effect had on the motion for summary disposition.
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- J MEMORANDUM AND ORDER
(Ruling on Applicant's Motions of March 20,1987,
~) for Summary Disposition of the Legal Authority issues
.c ,
- o and of May 22,1987, for Leave to File a Reply and ,
i ,
' Interpreting Rulings Made by the Commission in CL18613 involving the Remand of the Realism Issue and Its Effect on the Legal Authority Question)
- - INTRODUCTION
~ '
.]
7 . On March 20,1987, LILCO Oled a mot!on, pursuant to 10 C F.R. 5 2.749, for
- -. '.. summary disposition of Contentions 1 through 10, the "legal authority" issues.
- It requests that the Board decide the issues in LILCO's favor, on the ground that 4 '_ - V. .s. , no genuine triable issue of material fa:t exists and that LILCO is entitled to a
- Judgmer,' as a matter of law. As part of its motion, Applicant requested that the
, j Board allow it to file a reply, within 10 days of receipt of Intervenors' answer, ,
~ ,) in order for it to address "whatever novel theory the Intervenors create."
Intervenors on May 11, 1987, filed an answer alleging that the motion for summary disposition is defective and frivolous and requesting that it be denied. '
;{
in a separate response filed the same date, Intervenors asserted that Applicant's 7{ 4 request to file a reply to Intervenon' answer was premature and that, inter alla,
~
the way for AppF. cant to proceed was by a rnotion for leave to reply, filed after i Intervenors had answered Applicant's motion for summary deposition. i On May 22,1987, LILCO filed a motion for leave to file a reply to i Intervenors' answer to Applicant's motion for summary disposition. De motion renewed LILCO's request to Gle a reply. Attached to the motion was its proposed
~
reply. Intervenors on June 1,1987, filed a response to the LILCO motion for leave j to file a reply. De governments asserted that the reply is unauthorized and i must be rejected summarily and that no consideration should be given to the i proposed reply. Staff, which had not responded to the March 20,1987 motion for summary
-l 4 judgment, filed a response to the LILCO motion to file a reply, it supported the
]
motion, alleging that there was good cause to permit the 61ing of the reply. In this Memorandum and Order, the Board rules that LILCO not be gunted leave to 61e a reply to Intervenors' answer to the motion for summary disposition. 7he Board further rules that the March 20,1937 motion for summary disposition i be denied. In so ruling, the Board interprets Commission &cidings in CLI-86 i 13,24 NRC 22 (1986), the decision that remanded to the'tilcensing Board the
< v - .g
- matter of LILCO's realism argument and its effect onbe legal authority issues.
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- - s A. The LILCO Motion for Leave to File a Reply l
* ," i In its May 22,1987 motion to 61e a reply, LILCO concedes that Intervenors' s o -e . l r.h j P.. answer says little that is new as to the facts. It prembes its request on other
~,y y3 <
. R ff 4 m , y. . > 6.i grounds that there is good cause for the Board to accept a reply. Applicant
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. 1 states that it could not have anticipated in its motion that Intervenors would ignore the requirements of the summary disposition regulations as to issues of
. 7d
,. fact and would instead try to recast the issues into legal ones. Furtner, it claims
~ '
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- ~
9 ' A,/ that a reply is necessary to help make sense of the Intervenors' answer, and to Y s ,.[
'T '
focus the issues and to correct statements. Also, Applicant claims it could not
. ,: y o
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~ q ~ .. f,. . ? ,W nws have anticipated that Interrenors aguments would for the most part challenge g.n:g p l j ,.5 9 the Commission's decision in CLI-86-13, supra, as well as other Commission :
-hg%[U Y N decisions and regulations and federal court decisions. Attached to Applict.nn i ('[f'wO
.,4,CWy'7(i.N
* ^ '
;- , motion is the proposed reply, which it seeks permission to 61e.8
~y; ;V f..
, 4. M:c In their answer of June 1,1987, latervenors claim that 10 C.F.R. { 2.749(a) 7; 4 ' ' r ,
bars the 61ing of reply. They further assert that even assuming that the Board
~ ~- ' '~ '
.'f ,.
i has authority to consider LILCO's motion it must be denied because LILCO
.r-
,, m has demonstrated no compelling need to overcome the 92.749 prohibition on
.,.y replies. Intervenors contend that the Board has no need for additional assistance 1
~
a from LILCO to make sense of Intervenors' answer and to focus the issues. Bey funher contend that lega! argument is the essence of summary disposition ; 61ings, LILCO having to prove that as a matter of law it is entitled to a ruling in
.; its favor.8 hey state that if Applicant could not. or did not, anticipate that legal argument would be included in the governments' answer then LILCO must face
- the consequences as set forth in the regulations governing summary disposition. -
4 Intervenors further contend that Applicant's propoid reply contains inc >rrect
'I and misleading factual and legal aasertiens and that tin governments must reply l
,, to them "unless the Board provides assurance that it will not review the proposed I Reply at all." Intervenors ask that in addition to denying the LILCO motion and ;
e rejecting the proposed reply, "the Board make it clear that h Mi give absolutely i
,; no consideration to the pmposed Reply." l
"} Staff, in a June 8.1987 response to the LILCO medy to 61c a reply, supports 1
. , ( y. Applicant for the reasons offered by LILCO. Staff concludes that Intervenors' answer to the motion for summsy disposition raises legal issues that could not
- 1 s have been antic.ged and ths.t must be ret,olved in deciding the subject motion;
,_l and that there are compelling reasons for permitting LILCO t.) nie a reply to address Intervenors' legal arguments.
's",
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- x. . t'O:q
' ,. . 3,+ ,y,y- Reply u LEro's Anse.r and NItC staff's Rest.am u Mosie to A&st New C ruarcio, Manh 20.19ss.
. '. .'.C/ -
s -' -. 3 to CIA $2.749(r).
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i Based upon tNiaatneriNd filings, the Board denics App'Wnt's motion to
' - ', j file a reply and rejecds the proffered proposed reply.
- 'I Pertinent to the issue of the possible granting of leave to fLe k reply to an
<,, . s, answer to a motign for summary judgment is 9 2.749(a). It provides:
- - )
3 g, ,
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3 Any party a roceeding may move. w th er without supporting af6 davits, for a decision
/c' J. .
') by the presiding d&er in that party's favoe as to all or any part d the maners involved s
.j in the proceeding. . . . Any other party may serve an answer supporung or typssins the mcticrt, with or w:thout af6 davits. within twenty GO) days after service d the 'wio . .. c
' ' ' '[he c5 posing party r=tay within ten days after service wymd in writing to net fc.ts
- ' argumenu presented h any statemers 6 led in sutport of the c'et. No funhet suppMa *
. i;
_ , f j.?, 2. statements ce responses thereto sy te sitettained. O'
- W
; ; .*- .,l}~ '
Q[,*, Also pertinent is 10'C.F.R. 62.718(e) which provides tmitt/ with the p . f . '.,[hd M N l,5 $ - general authority to "regulate the courec of the hearing and the cotA!act of the ( ' n." , . + ~
, ' ,, e. e v i '
participants" in the proceeding. The Board has in the past modified the application of the provisions o' lJ ~X - . I. j s i 2.749(a). Using the autho:ity in 62.718(et we granted Intervenors an extensioa of tima beyond the 20-day period for the regulations to serve an answer opposing ,,
- the motion for summary disposition. h'ernorandum and Order (Ruling on Intervenors' Motion to Convene Conferene j of Counsel, and Other Relief)
- April 10,1987 (unptiolished), at 7-8. It is totsd that Intervenors in seeking ih:* #','
extension of time tJ die an answer beyCGf it.a! prescribed in i2.749(a) did not consider the matter of permitting the 61ing of a reply tc an answer to the motion l
- to be jurisdictional. Intervenors took the position that thould the Boatd grant l
Intervenors the extension they requested," tu goventnems have no obja. tion to l } l LILCO being granted an opportunity to reptr' Suffolk Coun*y, State of mw g
- York, and Town of Southaa pton Motion for Conference of Counsel and for
- i. Licensing Board Clarification of Procedures, or in the Alternative, for Additional L .
Time to Respond to LILCO's Summany Di:.Mitim Mc,tlon, April 7,1987, at
- 11 n.6.
, in rqsponse to a Staff motion filed Apill'8, IW7, seexing permission to reply,to taff.-LILCO's motion for summary siistmition of March 20, 1987, and Intervenors' answer to the motion, this Boss.1 ruled th Ctt a threshold , ;
requirutaent before considering the matter of whether the Board could grant l
;! cave ibt filing a reply, there should be established by the movant that it have a ,
compelling reason for doing so. Staff rever satisfied the tn%shold requirement, l and the motion was denied. Memorar dum and Order (Ruling on Staff's Motion (
, of April 8,1987, to File Reply), April 22,1987 (unsoblished), at 3-4. l The procedure previously employed by this Board, of requiring a movant to '
. j. . . ,
~>
^ 3" establish a compelling reason to lift the prohibition in 6 2.749(a) against the
' ~
- x __ ' " filing of replies, before the Board decides'whether it has the authority to do ]
' ' '-- - 'N' ' so, is a reasonable approach and we will continue to follow it bere. The Board ;
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. does not find, after considcring the authorized Slings of the parties, that the
, Applicant has made the threshold showing, so that we need make the decision '
? on our jurisdiction to do so.
Applicant's asserted need to file a reply is premised on its inability to have anticipated Intervenors' answer to its motion for summary disposition and in 1 order to focus issues and to correct misstatements. The claim of surprise and the need to correct the record should be viewed in the context of the history of the legal authority and realism issues.
, The very caption of Applicant's motion,"LILCO's Second Renewed Motion
, for Summary Disposition of the ' Legal Authority
- Issues (Contentions EP 1)"
Indicates a long and repetitive history. LILCO's original motion for summary
~
Ji -
, disposition was filed in August 1984 and its first renewed motion in February
-3 , 1985. Much involving the current motion for summary disposition repeats what
'u. '
'. , ,, a has gone before. It extends to LILCO filing on March 26,1985, a motion seeking m .
leave to reply to Intervenors' response to Applicant's first renewed motion for summary disposition and to Intervenors' proffering on April 8,1985, an answer to Applicant's motion for leave to file a reply. ne Board found that there was no need for a reply by LU..CO because of the already exhaustive filings and arguments on the is>ue. Therefore, it denied the motion. The proffered document of Intervenors was found to be without a useful purpose and was rejected. LBP 8512,21 NRC 644,899 (1985). The current situation is not dissimilar to the prior one. The parues have i been afforded the opportunity called for by the regulations to make their cases, f and the Poard has suf5cient information to reach a decision in the matter. Tht parties do not propose to present to the Board anything by way of additional facts but of argument of which we have had enough. It should be remembered that a primary purpose of summary disposition is to avoid the cost and delay of unnecessary litigation. Summary disposition should not be employed in a way that would add to cost and delay. The most important occurrence involving the legal authority issue since the Board decided the last renewed motion for summary disposition was the Commission's issuance on July 22,1986, of its decision, CLI 86-13, supra in which the Commission expressed new views on the realism issue, v hich affects the legal authority question. Of course, from the history of the proceeding, it could only be expected that Applicant and the Intervenors would interpret the Corr. mission's holdings differently and that they would emphasize different
, areas in making their cases on summary disposition.
Applicant construed CLI 8613 as limiting Intervenors to utilizing the LILCO s ,~
, plan. Intervenors' ir:erpretation, with its unbridled resistance to the plan, is to the contrary. Applicant emphuized from a factual standpoint Intervenors' O [ [
r% capacity to implement the tility plan while Intervenors relied extensively on y, , .^;<f, .J _
, . legal interpretations that do rat rc.tuire them to do so,
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j ne positions the parties took were quite predictable. Dere are no surprises. Each side made its strongest case in the single pleading allowed by the regulation. De Board has no need for additional argument to reach its determination. At this point, we need no assistance in keeping the record straight on the issues, this third time around on the motion for summary disposition on the legal authority
' ~
t issues. Applicant has not provided the Beard with a compelling reason fcr the
~
need to file a reply, and the motion is denied. 4
'. + Similarly, we have no need for a filing from Intervenors to set the record
-j straight. Further, the denial of Applicant's motion renders moot any requirement for a funhet filing by Intervenors on the subject. De rec,uest is denied. As to
' j - '] Intervenors' other pleas, which in effect proclaim a the Board not to include
, ,i 7 ,
extra record matters (Applicant's proposed reply) in our consiferations and to
-l . ,
^
confirm that we have not done so, those unnecessary pleas are patently ridiculous J' -
'% , -" - 4 - 7 and are denied.
. 1 j B. The Second Renewed LILCO Motion for Summary Disposition of the Legal Authority Issues
- l. Background t
j De legal authority issues are those contained in Intervenors' first ten con-1 tentions which allege that LILCO lacks, under New York law, legal authority to 1 perform ten functions that had been relied upon by Applicant to carry out the
, l offsite emergency plan for the Shoreham Nuclear Power Station.3 Applicant has, inter alia, defended against the legal authority issues on the basis of its realism argument The argument is that the legal autnority issue is an academic issue of no practical importance. It asserts that the local governments in an emergency would try to protect the public and that since those with legal authority to protect the public would respond to the emergency, there would be no gaps in legal authority.
De legal authority issue was twice litigatcd before this Board. In the first instance, the Board on October 22, 1984, issued a Memorandum
- and Order (unpublished) finding that seeking summary disposition at that time was
'> premature. On February 27,1985, LILCO renewed its motion, and after review
, ?- .J l
' ' 3 They aw 0) guidiria traf5c; G) blockir.: rendeira. erecur. bemers in roadways. and dannebra trame,
- 0) pceung trif54 mgns in roadwavs, (4) removus obstrucuans frcra pbbe roadways, includes toews pavne
'
- veLles; (s) aconurg arens and duecung the broadcasung er emergency broadcast system eness ges; (6)
*,/ ,1 ,e s 't4 makeg docule.s and racerrenandauens to es pubhc concernes prosecuve aaxms; U) makmg decis.ess and
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* .. rectrunendanc.ns to es pubhc ccmcerrurts protective ecuans for the ir4esuce esposure pa4=sys; (t) uaking
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decisions and recommendanons to me putdr concommg reconry and reentry; (9) d.spererg fuel facen tas
/; -
7 g. i, ' ;' -? _ N v. , ' trucks to autanobdes alor.g rendades; and 00) performes eccess contrei at the Emergency Operinens Cauer, N, - ..A_ -
,3' , 'i , 'i;. - i se rulocanon corsets, and the E71. penmesars.
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a ", - 9g we decided against the Appihant, as reported in the Partial Initial Decision of ~ cen , , -.'gg;
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~'.-c April 17,1985, LBP-8512, Il NRC 644,919. :
De Board found on the basis of Cuomo v. ULCO, Consol. Index No. 84-4615 4 Wi% ; , , ' ,W \ y L.f (N.Y. Sup. Ct., slip op., Feb. 20,1985), that the actions cited in Contentions 1-1 ,. ' ' ' [;;h Wrt ' ' ' 10 to be implemented in the emergency plan were prohibited by state law.' De a '
& Board further found that LILCOi realism arg6 ment was predicated on the State f ' >* ,
2
' ~
3 and County authorizing LILCO to act as called for in the emergency plan and i i , M * - y , that, because under New York law the utility could not be authorized to exercise
+ . - i' police powers, the realism argument was without merit. The Board concluded, !
.. . !p q/.i ', y ... J ' . A~, based on the governments' opposition to the plan, that any government response 1 J, N C . M" D ' U * ' t .% would be on an uncooperative, uncoordinated ad hoc basis which did not provide MM.M
' 1 reasonable assurance that adequate protective measures could and would be taken :
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ff A.[ 14.' '. .s , in the event of a radiological emergency.s LILCO pressed its realism argument before the Appeal Board, which then ,. . , % M ' 9 [ '[ ^ ' " 'I , upheld the. Licensing Board. ALAB-818,22 NRC 651,673-76 (1985). LILCO s
-7 .,
. . . petitioned the Commission for review of ALAB 818, and the Commission A Ji ~ -
a, N' approved. It resulted in the Commission, on July 24, 1986, reversing and g
' .) a-a ~-
i
', remanding for further evidentiary hearmgs issues raised by LILCO's realism argument.'
"~
De Commission in CLI 8613 said that the LILCO plan should be measured m [ .; . - against a standard that would require protective measures that are generally
'^ " -
y comparable to what might be accomplished with government cooperation De , 3 Commission assumed that should the plant go into operation and were there to l
, 1 be a serious accident requiring protective actions, there would be a "best effort" '
,,R _l State arnt County response and that as part of the "best effort" they would utilize the LILCO plan as the best source for emergency planning information and u, ' ,. ' options. Statements by the Oovernor of New York and the County Executive of ; Suffolk County denying that they ever would or could cooperate with LILCO - 1
- .. e were not accepted by the Commission at fa
- e value. The statements caused the !
j Commission to view the LILCO plan as an interim plan that will be superseded ; j ,
,. or supplemented by the State and County if Shoreham is permitted to operate at full power. ;
De Commission would not arume, as LILCO would have it do, that the ' E , ';c - assumed "best-effort" government response would necessarily be adequate. In
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' l'. ' ,
~ ..
its decision, the Commission saw that there were open questions as to the effectiveness of a government response. The Commission concluded that to
.y ,
. j answer those questions more information was needed about the shortcomings of
.'?,N,. , the LILCO plan in terms of possible lesser dose savings and protective actions a.
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- LBP ss 12. mpre. 21 NRC at l99.
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."i foreclosed, assuming a "best-effort" State and County response using the LILCO
' ' . plan as the source for basic emergency planning informadon and opdons. The r~
~
Board was directed to use the existing evidentiary record to the maximum extent e, , ;, . g
.f : r- possible but to take additional evidence where necessary.
- m. . i. g.
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, , ~.4 L . + 2, The IJLCO Position on Summary Disposition For purposes of its motion, LILCO considers itself prohibited by state law
%& . x .' '[,
J
~, from performing the ten functions enumerated in Contentions 110.' LILCO asserts that the Commission accepted LILCO's realism argument in CLI 86-13,
. ,. c.
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.Q ; i f' Applicant stating that "since everyone with ' legal authority' would respond to
'. g the emergency, there would be no gap in legal authority."
- 6. ;j -. f A i',.y ,, -^a*
', , b -
Applicant argues that, considering the presumptions in CLI-8613 that the ' W r - -
- State and County would use their best efforts and that the LILCO plan, if allowed
" to operate without the State and County, complies with NRC requirements.
j-therefore, the State and County cannot oppose the motion without showing how w
'i '* '
they themselves, doing their best, would spoil an adequate plan and harm the
,L public. LILCO further argues that this is something Intervenors cannot do, considering the governments' resources.
[ Applicant contends that all that it needs from the State and County is the intangible resource of legal authority, and that can be provided by telephone. ' I LILCO asserts that so long as there is a means of contacting the State and i . County in an emergency, the "best-efforts" presumption compels the conclusion that the emergency response would be about as prompt as under the LILCO-only s response already litigated. Applicant stated that it wished that it were understood that realism does not
, mean that the State or County would step in at the time of an accident and take over the plan using State and County employees and send LERO home. It stated i
-. that realism contemplates a partnership in which LERO wt)uld continue, with emergency approval, to manage the emergency response, with the State and County providing legal authority and whatever resources they could provide on '
short notice, The utility's position was that the local governments could override a LERO decision and that ultimate authority resided with the governmenu. , 4
'.,- Attached to Applicant's motion is a statement alleging sixty three material facts as to which LILCO contends that there is no genuine issue to be heard l
on Contentions 110,8 They pertain to State and County resources employabic ! i 4 y ,
,;* " l 4 ' e r% ~
* 'The New Yod suw supreme Coun Appenam Divman, second Deparuners, in sit NY s. 2d 867 09s7)
,e
+
afSrvned es lower court densum, Cweno v. U1.fo, sapre. that held that Ulro lads me legal auserity to
*- i
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,,.7 . parm the funcoere. ULCO win appent Applacers assens that Camarmaan 3,9, and to how been mooiad other whouy or sutstandany. Carsannen
;5 ey , . . ; M' - r , ,. '. 3 oddruere the passing er trafSe (traJblazer) mens cri the soodesyt Thas has been e:inuamed rnen the 34 aa.
t J
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{ r* Cereentaan 9 selates to dispensms fuel freen tank trucks to e.amnobdes along the medway. The Ucenses (Ceedanad) a, ?; yq"~ c ~ q.- , f (.
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z, , , E in a radiological emergency that relate to the functions described in the legal J ' authority contentions. In its motion Applicant describes how the State and
.b , v , ? ' ], ,
County, making a best effort and employing their resources in conjunction with
* ~ LILCO, will provide a satisfactory emergency response in the areas encompassed
' . %/ \ - , - by the legal authority contentions.
, , 5, ,
^
t - , . b 3, The Governments' Posidan on Summary Disposition
'( ,
Intervenors assert that LILCO's renewed motion does not address the istues
~ 1_ ,
raised in Contentions 1 10 and does not support summary disposition of those 1,7 +/ ._ c -
"I] contentions. hey allege that Staff, the Licensing Board, the Appeal Board, g4 f , ( , N g"', ;
. .a as well as the Commission in CLI 8613 have rejected the realism argument.
JJ .M.'- G n'Jl.. a.;
'( * ' . The Commission is said to have done so by concluding that LILCO could not
% . _. perform those functions and thereafter focusing its attention on the adequacy of
$ m./, t. Mf. .. J. ' El.7 a hypothesized governmcnt response. Intervenors assert that Applicant's motion essentially reargues its realism position, ignoring its conceded lack of authority.
~
and that LILCO, without legal justification, claims that the present record
l ,
establishes that a hypothesized ad hoc "best-effort" governmental response would be adequate under NRC regulations and that, on that basis, LILCO is entitled to summary disposition of Contentions 1 101 N The State of New York and Suffolk County claim that LILCO's realism
-! argument has no fixed meaning and that it has been consistently rejected in all 1 of its permutations. The realism argument is said to have taken the form that (1) LILCO will implement its plan under a delegation of powers by or pursuant
' to a deptaization from the State or County; (2) LILCO and the governments
' ~
will engage in a spontaneous cooperative effort in which the government will
/ ' provide LILCO with an umbrella of legal authority; (3) that the governments would in fact implement the LILCO plan using LILCO's advice and LERO -
, L' '
resources or even permitting LILCO to make all necessary decisior.s; or (4) that I the governments will respond to an emergency on their own and that LILCO's i
- lxk of legal authority to carry out its own plan would be rendered academic.
- It is alleged that LILCO's latest version of the realism argument is incon.
3 sistent with the holding in Cuomo v. LILCO because the State cannot authorize LILCO to implement its plan or to perform the functions embraced by Con- i}}