ML20199D113

Intervenors San Luis Obispo Mothers for Peace & Sierra Club Application for Stay of NRC 860530 Amend 8 to License DPR-80 & Amend 6 to License DPR-82.RB Ferguson Affidavit Encl

ML20199D113
Person / Time
Site:	Diablo Canyon
Issue date:	06/16/1986
From:	Grueneich D GRUENEICH, D.M. (FORMERLY GRUENEICH & LOWRY), SAN LUIS OBISPO MOTHERS FOR PEACE, Sierra Club
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20199D096	List: ML20199D093 ML20199D108 ML20199D113 ML20199D127
References
OLA, NUDOCS 8606190298
Download: ML20199D113 (10)

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, e O) p UNITED STATES OF AMERICA UCCh s

NUCLEAR REGULATORY COMMISSION Nbb bij g,'L

. DOCICTING 8 R BEFORE THE ATOMIC SAFETY AND LICENSING APP d6%QTCil

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In the Matter of: ) Docket Nos. 50-275 and 50-323

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PACIFIC GAS & ELECTRIC COMPANY ) INTERVENORS' APPLICATION FOR

) A STAY (Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

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The SAN LUIS OBISPO MOTHERS FOR PEACE and the SIERRA CLUB, SANTA LUCIA CHAPTER, SAN LUIS OBISPO, ("Intervenors") hereby apply for an order staying the effectiveness of the NRC's May 30, 1986 authorization of Licensing Amendments for the Diablo Canyon nuclear power plant.1 The Amendments authorize the reracking of the spent fuel storage pools at the Diablo plant. The Inter-venors request this stay in order to prevent irreparable harm and to preserve the status quo until administrative and judicial review of all issues underlying issuance of the license amend-ments is complete.

I.

SUMMARY

OF THE DECISION TO BE STAYED The NRC's decision authorized license amendments to permit spent fuel reracking at Diablo Canyon. The amendment authoriza-tion is based on a staff finding of "no significant hazard". The 1

The Commission issued Amendment No. 8 to Facility Operating License No. DPR-80 and Amendment No. 6 to Facility Operating License No. DPR-82 for the Diablo Canyon Nuclear Power Plant, Unit Nos. 1 and 2 respectively.

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o e staff issued its determination without any public hearings and despite the contentions of Intervenors that the reracking at Diablo does constitute a significant hazard and jeopardizes the public health and safety and the protection of the environment.

II. GROUNDS FOR THE STAY 2 A. The Intervenors' Likelihood of Prevailing on the Merits Is Strong On May 30, 1986, the Commission amended the Diablo Canyon license to permit the reracking of the spent fuel pools at Diablo Canyon. The Commission issued these amendments over the objec-tions of Intervenors that the proposed reracking was inimical to the protection of the public health and safety and the protection of the environment. Intervenors also requested the opportunity for a public adjudicatory hearing and filed supporting conten-tions. The NRC staff has admitted that several of the conten-2 Section 2.788(e) [10 C.F.R.] sets forth the factors to be considered by the Appeal Board in connection with a request for a stay. Although it appears that no Appeals Board decision was even issued regarding the amendments, it is Intervenors' understanding that the factors listed in Section 2.788(e) are the criteria used by the Commission in reviewing stay applications.

The factors prescribed by 10 C.F.R. Section 2.788(e) are:

(1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably harmed unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies.

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t 8 tions are sufficient.3 Nevertheless, without any public hearing, the NRC issued on May 30 the license amendments, simply adopting the staff determination of no significant hazards. ,

The Commission's issuance of the Diablo Canyon license amendments permitting spent fuel reracking at Diablo Canyon is unlawful for several reasons, both substantive and procedural.

Procedurally, the action is unlawful because the Commission it issued the license amendment without any public hearing, even though Intervenors have requested a hearing and have filed contentions. The Commission's action violates Section 189(a) of the Atomic Energy Act which requires a hearing in circumstances such as the present where there is a clear question of the impact on the safety of the proposed license amendment. See also 10 C.F.R. S 50.91 setting forth additional requirements for public participation which the Commission's action ignores.

The Commission's action also disregards entirely the mandate of Section 132 of the Nuclear Waste Policy Act of 1982, 42 U.S.C.

S 10152 which requires that the Commission act in a manner consistent with the " views of the population surrounding [the]

reactor." The Commission's action has ignored the input that Intervenors, members of the surrounding population, have sought 3 ' Response of the NRC Staff to the Amended Petitions for Leave to Intervene Filed by San Luis Obispo Mothers for Peace, Consumers Organized for Defense of Environmental Safety and the Sierra Club, May 9, 1986 (". . .the Staff is of the opinion that each of the petitioners has adequately demonstrated their standing to intervene, has proffered at least one admissible contention and should be admitted as a party to this proceeding.", at p. 30.)

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I t I to provide the Commission. No attempt has been made to ascertain by hearing the views of the population surrounding the reactor (including any of the more than one thousand members of the Santa Lucia Chapter of the Sierra Club, the majority of whom live within the nuclear evacuation zone surrounding Diablo Canyon).

l See attached Affidavit of Dr. Richard B. Ferguson, para. 2. The action also violates Section 134 of the Nuclear Waste Policy Act of 1982, 42 U.S.C. S 10154 which mandates an adjudicatory hearing in instances such as this.

The Commission's failure to allow public review and a hearing has precluded a fair consideration and informed resolu-tion of significant issues in this proceeding.

The Commission's decision is also unlawful substantively because it violates the agency's on-going responsibility under the-Atomic Energy Act to assure that the plant -- including the spent fuel storage pool facilities -- will operate without endangering the public health and safety. The Commission's action also violates the agency's responsibilities under the Nuclear Waste Policy Act of 1982, 42 U.S.C. S 10101 et seq..

Section 132 of the Act, 42 U.S.C. 5 10152, allows the Commission to permit expansion of on-site spent fuel facilities only if such action is consistent with the protection of the public health and safety, and the environment. As described below and in Dr.

Ferguson's affidavit, the spent fuel reracking poses a signifi-cant threat to the public health and safety.

The Commission's determination of "no significant hazards" 4

o e is also unlawful because it violates the criteria set forth in the Commission's own regulations. 10 C.F.R. S 50.92(c) lists the criteria for a determination of no significant hazards. The Commission may make such a finding only if operation of the facility in accordance with the proposed amendment would not: 1) involve a significant increase in the probability or consequences of an accident previously evaluated; or 2) create the possibility of a new or different kind of accident from any accident previ-ously evaluated; or 3) involve a significant reduction in a margin of safety.

The Diablo Canyon reracking fails to meet these criteria.4 The attached affidavit of Dr. Richard B. Ferguson describes how the proposed reracking would significantly reduce the margin of safety for the spent fuel storage system and pose a risk to the public health and safety and protection of the environment.

Diablo Canyon is in an active seismic zone; the Hosgri fault is located within three miles of the plant and spent fuel pools.

Although the original spent fuel storage racks were anchored by bolts to the bottom of the storage pools, the new ones will not be; they will be free standing. As the Commission admits, this means that the racks will slide around during earthquakes. The reracking also means that the density of the racks will increase l significantly and that the space between neighboring fuel l

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l Even if the Commission does determine that the reracking is l consistent with the criteria set forth in Section 50.92 the l regulation itself containing the criteria nevertheless fails to comply with the requirements of the Atomic Energy Act, specifically Section 189(a).

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assemblies will be reduced to a minimum. As a result, the

-potential for serious consequences if collisions do occur has increased substantially. Affidavit of Dr. Ferguson, para. 7-11, 22.

There are several types of specific risks from the spent fuel reracking at Diablo Canyon which the Commission has failed to examine adequately and which pose a significant threat to the public health and safety and protection of the environment. The Commission has not evaluated the potential for collision of the i

racks with the walls of the storage pool. The Commission has also failed to assess properly the potential for collision of one rack with another. Third, the Commission has ignored the potential for multi-rack collisions --

i.e., more than one rack colliding with the wall or with another rack. Fourth, the Commission has overemphasized the cushioning effect of water in collisions involving fuel racks. Fifth, one rack in particular l

(fuel rack "H") has a - different configuration from the other racks. Although collisions involving this rack could cause damage to the system more easily than from other racks, the Commission reports ~contain no reference to this special problem.

See Affidavit of Dr. Ferguson, para. 12-21.

In sum, there is no basis for the Commission's determination of no significant hazards. The Commission, . in issuing the amendments without pubic hearing or review and without substan-tial evidence supporting its action, has acted in an arbitrary and capricious manner. The Commission has violated its responsi-6

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bilities to ensure the public health and safety and protect the environment under the Atomic Energy Act, the Nuclear Waste Policy Act of 1982, and the National Environmental Protection Act.5 B. Intervenors Will Be Irreparably Injured in the Absence of a Stay If the spent fuel reracking is allowed to proceed at Diablo Canyon, Intervenors will be irreparably harmed in several significant respects. First, the Intervenors and the public generally will be endangered by the reracking, because the

-facility will not be designed consistently with the Commission's mandate to protect the public health and safety. As the Cherno-byl accident has graphically demonstrated, the consequences of a major accider[t at a nuclear power plant can be catastrophic, both in terms of injury and death to persons and property damage. The reracking increases substantially the risks to the property and personal safety of the surrounding population, including Inter-venors. Affidavit of Dr. Ferguson, para. 3. By reducing the margin of safety and allowing the potential for new accidents, l the new spent fuel storage system poses a significant risk of irreparable injury.

The level of potential radioactive contamination of the 5

The Commission did not issue an Environmental Impact l Statement before taking this action. Instead, it merely issued l an " Environmental Assessment." The Assessment relies in large j part upon an eleven-year old generic EIS and ignores almost entirely the site-specific considerations of the Diablo Canyon reracking --

i.e., the free-standing nature of the replacement racks and the impact of the seismic forces active near the plant on the spent fuel pool.

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facility will also be significantly increased by the greater amount of spent fuel stored on site. As the Commission's own documents admit, the amendments allow the expansion of the spent fuel pool storage capacity for each spent fuel pool from the current 270 to 1324 spent fuel assembly spaces.

The Commission's action -- taken without any public hearings

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-- also irreparably injures Intervenors and the public because it deprives them of a due process right to hearings. Amos Treat &

Co. v. SEC, 306 F.2d 260, 263 (D.C.Cir. 1962).

The Commission's action also irreparably violates Interven-

ors' rights under the Nuclear Waste Storage Act of 1982 which specifically mandates that the views of the surrounding popula-f . tion --

including Intervenors -- be taken into account into determining whether to _ permit reracking. The Commission's failure to do so irreparably injures Intervenors.

Finally, when an agency has taken an action in violation of NEPA -- such as the failure here to assess environmental impacts

-- there is a presumption that injunctive relief should be granted against the continuation of that action until the agency complies with the Act. See Realty Income Trust v. Eckerd, 564 F.2d 447, 456 (D.C.Cir. 1977)6 Environmental factors must be i

'The purpose of such relief is two-fold. First, NEPA was intended not only to prevent harm to the environment, but to ensure that agency decision-makers fully explore the consequences of their actions. Consequently, " courts will not hesitate to stop projects that are in the process of affecting the environment when the agency is in illegal ignorance of the consequences, as when it should have prepared an EIS but failed to do so." I_d. (emphasis in original). Second, injunctive relief against non-compliance with NEPA preserves the agency's freedom 8

fully considered not only before actual harm occurs, but before the agency's plans are so advanced that they acquire "irreversi-ble momentum." Id. at 511; Lathan v. Volpe, 455 F.2d 1111, 1121 (9th Cir. 1971). Similar considerations require that the reracking be stayed until there has been full compliance with NEPA and protection of the environment is assured.

C. The Granting of a Stay Will Not Harm Others The grant of a stay will postpone the reracking only until review has been completed. While some delay is inherent when a stay is granted, the period necessary in this case is de minimis relative ~to (1) the fifteen year history of this administrative

, proceeding, ' necessitated in substantial part by PG&E's own failures in siting, designing, and constructing the facility, and (2) the amount of time that would otherwise have taken to complete this proceeding if a public hearing had been permitted.

D. The Public Interest Strongly Favors a Stay The public interest will be best served by granting a stay in order to ensure that operation of the plant will be safe and will comply with all applicable regulations and laws. Deferring safety reviews and public hearing until after the reracking has occurred makes a mockery of the regulatory process and undermines public confidence in the NRC's willingness to place the public 9

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health and safety ahead of the economic interests of those whom the agency is charge to oversee. As the accident at Chernobyl has tragically illustrated, nuclear power plants can have accidents with severe damage to the public health and safety and the environment. When as here, intervenors seek an opportunity for a hearing on the issues of safety and environmental protec-tion, the public interest mandates that such a hearing be permitted before any action is authorized.

IV. CONCLUSION For the reasons stated above, Intervenors hereby request this Appeal Board to stay the effectiveness of the decisions and license amen'dments cited herein until Intervenors have had an opportunity to seek judicial review and participate in any administrative proceedings regarding the reracking.

Dated: June 16, 1986 GRUENEICH & LOWRY By: b Dian M'. Grueneich 10

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