ML20203E424
| ML20203E424 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/22/1986 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-076, CON-#386-76 CLI-86-12, OLA, NUDOCS 8607240143 | |
| Download: ML20203E424 (34) | |
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COLYET[D UNITED STATES OF AMERICA usNRc NUCLEAR REGULATORY COMMISSION 76 JL 22 40:32 COMISSIONERS:
OFFICE Os En:..d r Lando W. Zech, Jr. , Chaiman 00CKETE A M Wicf.
Thomas M. Roberts BRW James K. Asselstine Frederick M. Bernthal p gutaaa..m
)
In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY, ) Docket Nos. 50-275-OLA
) 50-323-OLA (Diablo Canyon Nuclear Power -
Plant, Units 1 and 2)
MEMORANDUM AND ORDER CLI-86-12)
This matter is before th(e Commission on a request for a stay of the immediate effectiveness of two license amendments issued by the NRC Staff (" Staff")onMay 30, 1986 pursuant to Section 189a(2)(A) of the Atomic Energy Act as amended, 42 U.S.C. 6 2239(a)(2)(A). The petitioners are the San Luis Obispo Mothers for Peace ("SLOMP") and the Sierra Club, Santa Lucia Chapter (" Sierra Club"). The amendments authorize the Pacific Gas and Electric Company ("PG&E") to rerack the spent fuel pools at both units of its Diablo Canyon Nuclear Power Plant
("Diablo Canyon") . This reracking will replace the existing bolted storage racks with high-density, free-standing storage racks and increase the storage capacity of each pool from 270 to 1324 spent fuel assemblies. For the reasons set out below in this special case, the Commission stays, pending completion of the on-going license amendment 8607240143 860722 5 PDR ADOCK 0500 3 s c2_ . . - -
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2 hearing and initial decision, that portion of the amendments which authorizes PG&E to store in excess of 270 fuel assemblies in either of the two pools at Diablo Canyon. In all other respects, petitioners' request for a stay is denied.
I. Factual Background And Procedural History PG&E filed an' application for license amendments with the NRC Staff seeking authority to rerack both spent fuel pools at Diablo Canyon on October 30, 1985. The proposed reracking would increase the capacity of each spent fuel pool to hold up to 25 years worth of spent fuel (1324 assemblies) as opposed to the original licensed capacity of five years (270 assemblies). The Staff published notices of the requested amendments and of a proposed finding of "no significant hazards corsideration" reaarding the amendments in the Federal Register on two separate occasions. See 51 Fed. Reg. 1451 (Jan. 13, 1986); 51 Fed. Reg. 18676 (May 21, 1986).
The petitioners (among others) submitted coments on the proposed amendments and requested a hearing pursuant to Section 189a of the Atomic Energy Act ("AEA"), 42 U.S.C. 5 2239(a). A three-member Licensing Board was established to hold the requesting hearing. That i
Licensing Board has held a pre-hearing conf? ence and has issued an order admitting three groups (including SLOMP and the Sierra Club) with at least one contention each as parties to the proceeding. See ASLBP No. 86-523-30-LA (June 27,1986).
3 The Staff published a notice of " Environmental Assessment and Finding of No Significant Impact" required by the National Environmental Policy Act ("NEPA"). 51 Fed. Reg. 19430 (May 29, 1986). Then, on May 30, 1986, the Staff issued a final finding of "no significant hazards consideration" and the requested amendments which were made immediately effective, i.e., allowing PG&E to begin the reracking process without awaiting the result of the hearing process. 51 Fed.
Reg. 20725 (June 6, 1985). See Section 189a(2)(A) of the AEA, 42 U.S.C.
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8,2239(a)(2)(A).
On June 17, some eighteen days later, the Comission received the petitioners' request to stay the immediate effectiveness of the license amendments. The petitioners also directed their stay request to the Licensing Board and the Atomic Safety and Licensing Appeal Board
( Appeal Board"). On June 18 both the Licensing Board and the Appeal Board dismissed the requests which had been filed with them. Because the petitioners did not challenge any Licensing Board or Appeal Board decision neither Board had jurisdiction to hear the stay request. See l 10 C.F.R. @ 2.788 (1986). We issued an order on June 19 expediting our j consideration of the stay request which had been filed with us and directing the parties to the license amendment proceeding to respond to that request. The parties have submitted their responses and the issue is now before this body.1 I The petitioners also sought a judicial stay in this matter. See
[FootnoteContinued]
4 II. Standard And Scope Of Review In this matter, the petitioners challenge, among other things, the merits of the Staff's "no significant hazards consideration" finding.
Yet, our regulations provide that "[n]o petition or other request for review of or hearing on the staff's significant hazards consideration detemination will be entertained by the Comission. The staff's detemination is final, subject only to the Comission's discretion, on its own initiative, to review the determination." 10 C.F.R. 6 50.58(b)(6) (1986), as amended in 51 Fed. Reg. 7744, 7765 (Mar. 6, 1986). Thus, at least to the extent petitioners' request invites us to look into the merits of the Staff's "no significant hazards consideration" finding, we must initially consider the threshold question of Comission reviewability.
As the regulations make clear, there is no right of direct appeal i
l to the Comission regarding the merits of the Staff's "no significant hazards consideration" finding. Similarly, petitioners here cannot automatically obtain indirect review through the guise of an application for a stay of the Staff's finding. However, the absence of any right to appeal to the Comission does not divest the Comission of its inherent
[FootnoteContinued]
San Luis Obispo Mothers for Peace v. NRC, No. 86-7297 (9th Cir. filed June 19, 1986). The Court there has entered a partial stay (prohibiting the placement of any spent fuel into the pools for Unit 1 and i prohibiting further reracking on Unit 2) of the Staff's May 30 Order, and has ordered an expedited briefing and argument schedule. See Unpublished Order of July 3,1986 (Order denying in part and granting in i part motion for stay pending review).
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5 authority to exercise its discretionary supervisory authority to stay Staff's actions. This is true even when the stay request involves a
. staff "no significant hazards consideration" finding.
The Comission has decided, due to the special circumstances of this case,2 to exercise, on its own initiative, its supervisory authority to review the Staff's finding. In conducting this review, we have noted petitioners' objections to the Staff's firding. The Comission will review the Staff's finding to detennine whether t' is consistent with all applicable statutory and regulatory requirements and is technically reasonable.
The reouest before us involves other considerations beyond the merits of the Staff's no significant hazards consideration finding.
Among other things, petitioners' request also rests on allegations of violations of the Nuclear Waste Policy Act and the National
- Environmental Policy Act. As to these other claims, which are subject to review in a hearing before a licensing board, we will apply the traditional factors set out in 10 C.F.R. % 2.788 which bear on the issuance of a stay pending further administrative review. In evaluating requests for stays, the Comission considers the four traditional 2
The special circumstances are Congress' special concerns about significant hazards considerations for spent fuel pool license amendments and the Court of Appeals' questioning of the Staff's no significant hazards consideration finding in this specific case. See note 1 supra.
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6 factors applicable to the grant of a stay: whether the petitioners have made a strong showing that they are likely to prevail on the merits; whether there will be irreparable ham to the petitioners if no stay is granted; whether any other party will be hamed by a stay; and where the public interest lies. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437,1440 (1984). See 10 C.F.R. % 2.788. Despite our detemination to cpply the traditional stay criteria in this review and to address the petitioners' objections,
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we emphasize again that this review is undertaken pursuant to our inherent authority to exercise discretionary supervisory stays of Staff actions. In nomal circumstances we will neither invite nor entertain petitions for review of the Staff's no significant hazards findings.
III. The Stay Request In seeking a stay, petitioners allege three statutory violations which have caused, and continue to cause, them irreparable injury. In petitioners' view, the Staff's May 30 "no significant hazards consideration" finding violates Section 189a(2)(A) of the Atomic Energy Act, as amended, 42 U.S.C. 5 2239(a)(2)(A), Sections 132 and 134 of the Nuclear Waste Policy Act of 1982, 42 U.S.C. 55 10152 and 10154, and the
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! National Environmental Protection Act, 42 U.S.C. 5 4332. Moreover, -
petitioners assert that absent a stay, they will be irreparably injured.
They claim the Staff's order will permit the spent fuel storage pools at Diablo Canyon to be irreversibly modified, anri will subject the public l
7 to additional risks in derogation of petitioners' right to a hearing before the amendments become effective.3 In ruling on petitioners' request for a stay, we first consider their legal claims. Secondly, we turn to the competing harms and equities present in this matter.
A. Petitioners' Legal Claims
. 1. Petitioners' AEA Claims The petitioners argue that they have been denied their right to a prior hearing under Section 189a of the Atomic Energy Act, 42 U.S.C.
s 2239(a) because the Staff's May 30 "no significant hazards consideration" finding was improper as a matter of law and a matter of fact.
in arguing that the Staff's May 30 finding was improper as a matter of law, petitioners point to portions of the legislative history behind the Sholly amendments to Section 189a of the Atomic Energy Act which, petitioners allege, evidence a Congressional intent to preclude a "no significant hazards consideration" finding with respect to license amendments of the type here at issue. The Commission addressed that legislative history and the basis for its prior practice with respect to 3
Since a "no significant hazards consideration" finding is a procedural device to determine when, not whether, petitioners' right to a hearing under the Atomic Energy Act will occur, the merits of the legal and technical challenges raised by the petitioners' with respect to the amendments themselves are not before the Comission. Those matters are currently before the Licensing Board.
8 reracking in the adoption of both the interim final rules and the final rules implementing the Sholly amendments and that discussion will not be repeated in the same detail here. See 48 Fed. Reg. 14864, 14869 (April 6, 1983); 51 Fed. Reg. 7744, 7749-50, 7753-55 (Mar. 6, 1986). We believe it sufficient to observe that what may appear to raise a significant hazards consideration at one time may, at some subsequent time and in light 'of technological advances and further study, be determined to present no significant hazards consideration. In
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recognition of this, Congress did not chose to specify in the statute specificamendmentsthatwouid,orwouldnot,alwayspresentsignificant hazards considerations. Rather, Congress assigned to the Commission, the expert agency charged to regulate, license, and monitor commercial nuclear energy, the responsibility and authority to make the technical judgments underlying a "no significant hazards consideration" finding.
The Commission must have the ability to make policy and orocedural I
decisions based upon subsequent technological advances and study. The Commission has performed that function here by promulgating regulations l implementing Section 189a(2)(A) in a manner that is consistent with the I
Sholly amendments. 10 C.F.R. 5 50.92(c). These regulations do not i
identify all spent fuel pool rerackin5s as amendments likely to raise a j "significant hazard consideration." As explained in detail by the Comission in issuing its final procedures and standards in this area, i of the three types of reracking approaches (closer spacing, double l
tiering, and rod consolidation), rerackings by closer spacing (the type here at issue) could qualify for a "no significant hazards i
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9 consideration" finding.4 51 Fed. Reg. at 7753-7755. See " Review and Evaluation of Spent Fuel Pool Expansion Potential Hazards Considerations," SAI-84-221-WA Rev. 1 (July 29, 1983).
In particular, the Commission pointed in the rulemaking to the Staff's experience in reviewing and evaluating 96 prior amendments involving spent fuel pool storage expansion. That experience led the Staff to conclude that a reracking of spent fuel storage pools by replacing existing racks with a design allowing a closer spacing between stored assemblies would not likely involve significant hazards considerations if the multiplication factor, k effective ("k eff"), of the pool is maintained less than or equal to 0.95 and if no new 4
The Commission notes, in any case, that the spent fuel pool re-rackings which had been or were being conducted at the time of the Congressional considerations of the Sholly amendments generally involved license amendments that would increase the amount of stored spent fuel significantly beyond what had been previously authorized. In view of i the Coninission's actions in this Order, the amendment to tbg Diablo
! Canyon license will not be used as a basis for increasing the amount of spent fuel storage beyond what the unamended Diablo Canyon operating license originally allowed. The Commission believes that such a limited amendment is different in kind from the re-racking amendments on which the attention of some members of Congress was focused during consideration of the Sholly legislation. There is no reason to conclude that the legislators speaking of "reracking" were concerned with merely changing rack designs as distinct from actually putting more spent fuel into the pools than the original license had authorized.
Accordingly, the Commission believes that whatever weight can be placed on the isolated remarks in the Sholly legislative history on l
re-racking amendments, those remarks need not cnd should not be taken as indicating a Congressional view that an amendment such as this, which as modified by this order merely substitutes a different kind of racking without increasing the authorized amount of spent fuel, would involve a significant hazards consideration.
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10 technology or unproven technology is utilized in the construction process or in the analytical techniques necessary to justify the expansion. 51 Fed. Reg. at 7754. Petitioners' have failed to show that o
this is not the case here. It appears that the Staff has correctly j refused to automatically treat spent fuel pool reracking as involving a significant hazards consideration and has rendered a decision consistent with the Commission's "no significant hazards consideration" regulation.
See 10 C.F.R. 9 50.92. We turn now to that decision.
In support of their argument that the Staff's May 30 order was improper as a matter of fact, petitioners assert that the increase in !
the capacity of the pools through the use of high-density, free-standing racks in light of the seismic conditions around Diablo Canyon, presents a significant increase in the probability or consequences of an accident, creates the possibility of a new or different kind of accident and involves a significant reduction in the margin of safety. 10 C.F.R. 550.92(c). Upon close analysis of the technical claims at issue, we do not find that the Staff's finding was technically unreasonable.
In pertinent part, the technical specifications of the original Diablo Canyon spent fuel pools specify storage racks that maintain "a nominal 21 inch center-to-center distance" between no more than 270 spent fuel assemblies. Technical Specifications at 9 5.6.1.1.b. and 9 5.6.3. The amendments in question change these specifications to "a nominal 10.93 inch center-to-center distance" between no more than 1324 spent fuel assemblies. Amendment Nos. 8 and 6 to Technical Specifications at pp. 5-6, 5 5.6.1.1.b. and 5 5.6.3. Thus, the
11 amendments allow increased density and capacity in Diablo Canyon's spent fuel storage. Neither of these two changes justifies a total stay of the ongoing reracking program.
Petitioners apparently do not challenge the Staff's May 30 order on the basis that a significant hazards consideration exists solely as a result of closer spacing between spent fuel assemblies.5 Rather, it appears that petitioners' technical argument is that the closer spacing between the racks and the pool wall, when coupled with the use of non-bolted, free-standing racks of significantly greater weight, could result in earthquake-induced forces against the racks in excess of their design capabilities. If this occurs, they hypothesize, the consequences of the accident will be greater because the amount of fuel potentially S
Even had petitioners challenged the amendments' assembly spacing aspects, we would find no basis to grant a stay. Such a challenge would ignore the fact that the possible danger of a criticality accident from the increased density allowed by these amendments is simply not a significant hazard consideration in view of the required Boraflex neutron absorber that surrounds each poisoned fuel cell in Region I racks, the required burnup of the fuel in Region II racks, and the borated content of the water surrounding all the spent fuel rods.
Safety Evaluation by the Office of Nuclear Reactor Regulation Relating
- to the Rerackings of the Spent Fuel Pools at the Diablo Canyon Nuclear Power Plant, Unit 1 and 2 as Related to Amendments No. 8 to Unit 1 Facility Operating License No. DPR-80 and Amendment No. 6 to Unit 2
. Facility Operating License No. OPR-82, Pacific Gas and Electric Company, Docket Nos. 50-274 and 50-323 (' SER") at 3-6. Amendment Nos. 8 and 6 Technical Specifications at 9 3/4.9.14 and 5 5.6.1.2. As with the original technical specifications, k effective ("k eff") remains no greater than 0.95. Compare amended Technical Specifications at 6 3/4.9.14 with Final Safety Analysis Report ("FSAR") for Units 1 and 2, Diablo Canyon Power Plant at 5 9.1.2.3. Indeed, the Staff criticality expert has noted that even in the absence of boron in the water k eff would be less than 0.95 and with the required boron k eff drops to less than 0.8. Brooks Affidavit at 14.
12 in the pool will be greater and the separation between assemblies will be smaller. Application at 5-6.
In response to petitioners' intuitive argument that should an accident occur, the presence of up to five times more spent fuel must mean that the consequences of the accident would be significantly greater, the Staff argues that the five-fold increased storage capacity arcsents no significant hazard consideration largely because the spent fuel loses 99% of its radioactivity within a year of storage and, therefore, the retention of older fuel permitted by this amendment will not add significantly to the inventory of radioactivity in the pool.
SER at 17, 22. It is simply not necessary to resolve this issue in this stay request. As explained below, pending completion of the license amendment hearing, we stay the license amendments to the extent they cuthorize the storage of more than the originally authorized 270 spent fuel assemblies for each pool.6 Therefore, whatever the increase in radioactive fission products that may ultimately result from these amendments, that increase will not occur until long after the on-going hearings in this matter are tenninated.
Finally, petitioners argue that the change from bolted to l free-standing racks is an amendment that presents a significant hazards consideration. Neither the license, the technical specifications, nor 0
We do so without reaching or resolving the question of whether these amendments will significantly increase the consequences of accidents. Our actions in this regard may not be taken as intimating a view on that question one way or the other.
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13 the amendments specify whether the racks must be bolted or free-standing. The original Final Safety Analysis Report ("FSAR")
prepared in conjunction with the original operating license did specifically describe racks that were anchored to the floor and able to withstand postulated seismic events for Diablo Canyon (FSAR at 6 9.1.2.2), and we assume solely for purposes of discussion that a change from this design entails a license amendment. While not bolted, the new racks selected by PG&E to implement the reracking program must meet and have been designed to meet the seismic force requirements previously applied to the originally intended bolted racks. Moreover, as explained in unrebutted detail in the Staff's technical response to petitioners' affiant, Dr. Ferguson, " free-standing spent fuel rack modules are not new to the nuclear power industry and continue to replace anchored fuel racks on an increased frequency concurrent with the industry's need to provide additional storage capacity for spent fuel at the plants." Herrick Affidavit at 7. Indeed, the NRC Staff has identified at least twelve power plant units which have been approved for reracking with high density free-standing fuel rack modules. Id.
Much of petitioners' concerns about free-standing racks stems from fears that, in the event of a significant earthquake, these racks will
! be severely damaged by sliding into each other and the walls of the pools. Petitioners' Motion at 5-6. These concerns ere, in turn, based on an affidavit that calculates the force of a number of theoretical collisions based on fully loaded racks weighing 200,000 pounds.
Ferguson Affidavit at 1 14. The Staff has concluded that petitioners'
. l 14 calculations are faulty or unwarranted for a number of reasons. Herrick Affidavit at 1 4-8. We agree. For example, petitioners contend that the NRC has failed to assess the potential for collision of the racks with the walls of the storage pool. Ferguson Affidavit at p. 5. The Staff assessed this issue and addressed it in several places. Impact springs that simulate impact with adjacent rack modules and/or the pool walls and the fuel assembly in a rack storage cell were used in the modelling of the racks. SER at p.11 and Appendix A, TER by Franklin Research Center at p. 43. Petitioners contend that the NRC has overemphasized the cushioning effect of water in collisions involving fuel racks. Ferguson Affidavit at p. 6. In fact, the method used to analyze hydrodynamic coupling between water and racks underestimates the coupling forces to yield higher impact forces with adjacent structures.
Iii addition, fluid damping is conservatively neglected. Appendix A to SER at pp. 24 and 25, respectively. In addition, Figures 1 and 2 of Ferguson Affidavit appear to have been incorrectly derived. The major l
errors appear to have resulted from double integration of acceleration time history data without applying a baseline correction. Herrick Affidavit, at p. 6. The petitioners also oversimplify the forcing functions in their calculations by assuming a constant forcing function applied suddenly, and then sustained, on a single mass, elastic system.
Ferguson Affidavit, Appendix A. This oversimplified approach cannot l
adequately describe the dynamic response of a rack module bearing against a pool wall that is accelerating according to the accelcration time histories developed for the analysis. Herrick Affidavit at p. 2.
15 In their analysis, petitioners also totally ignore the damping and friction that might exist in the racks.
Thus, petitioners calculations upon which their concerns of damage from colliding racks are based rest on faulty assumptions, errors, and oversimplifications. All of these mistakes greatly overstate the possible consequences of an earthquake accident. The Staff has found that the use of seismically qualified free-standing racks, as opposed to bolted racks, presents no significant hazards consideration for Diablo Canyon spent pool reracking. Petitioners have not presented any technical evidence that calls that finding into question.
- 2. Petitioners' NWPA Claims Petitioners allege violations of Section 132 and 134 of the Nuclear Weste Policy Act ("NWPA") of 1982, 42 U.S.C. 99 10152 and 10154. They first argue that the Staff's actions are inconsistent with the i protection of public health and safety and the environment, Section 132(1), 42 U.S.C. 6 10152(1), and that the Staff did not act in a manner I
consistent with the " views of the population surrounding the reactor,"
Section 132(5), 42 U.S.C. 10152(5). While we do not prejudge the merits of the petitioners' public health and safety claims which are before the Licensing Board as a part of the technical arguments over the amendments, for purposes of analyzing their stay request we do conclude that it is not likely that petitioners will prevail on these claims.
l The petitioners have not presented any credible health, safety, or l
l environmental concerns that justify staying the immediate effectiveness l
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16 of the reracking amendments. Furthermore, members of the public have had the opportunity to present their views on this matter during the notice and coment period following announcement of the proposed amendment in the Federal Register. Moreover, the public hearing on the amendment under Section 189a of the AEA will allow the public an additional opportunity to present its views on the proposed expanded storage. The NWPA does not provide local populations a veto power over NRC licensing decisions. Such a reading of the NWPA would conflict directly with the Comission's statutory role as the national regulator of nuclear energy and render nugatory the principal directive in Section 132 of the NWPA to " encourage and expedite the effective use of...necessary additional [ spent fuel] storage."
Likewise, the petitioners do not rafsc valid claims under NWPA, Section 134. The NWPA does not require the Commission to grant the petitioners a pre-amend:nent hearing. Nothing in Section 134 amends the Sholly amendment to Section 189a of the Atomic Energy Act which allow the Staff to issue an immediately effective license amendment following a "no significant hazards consideration" finding. See 50 Fed. Reg. 41662, 41667 (Oct. 15, 1985). Therefore, we do not find a significant probability of success on the merits of the petitioners' NWPA claims.
Furthermore, the petitioners have not demonstrated any irreparable harm arising from the alleged NWPA violations. The petitioners are currently taking part in the hearing to which they are entitled by law.
Additionally, as noted above, we have stayed any storage of spent fuel above the originally authorized spent fuel capacity at the Diablo Canyon i
17 pool pending the hearing which the petitioners requested under Section 189a of the AEA. Therefore, the views of the surrounding population will be fully heard before the Commission actually authorizes the storage of spent fuel over and above that amount originally authorized by the initial Diablo Canyon license.
- 3. Petitioners' NEPA Claims The petitioners allege that the Staff violated the National Environmental Policy Act ("NEPA") by performing an Environmental Assessment ("EA") and making a finding of "no significant impact" instead of issuing an Environmental Impact Statement ("EIS"). The Commission is not automatically obligated to issue an EIS simply because the amendment at issue involves reracking. See 10 C.F.R. S 51.20 (1986). Instead, the Connission Staff must consider the matter on a case-by-case basis as required by NRC regulations implementing NEPA.
10 C.F.R. $6 51.25 .35 (1986). Furthermore, in order to challenge the Staff's decision, the petitioners must allege some specific deficiency in the environmental evaluation itself, not just a generalized failure to prepare an EIS or a generalized disagreement with the Staff's conclusion that reracking does not pose a "significant impact" to the environment. Township of Lower Alloways Creek v. Public Service Electric, 667 F.2d 732, 746-48 (3d Cir.1982). In this case, petitioners vaguely allege that the Staff violated NEPA by relying on the on-site EA in conjunction with a generic EIS prepared for expanded on-site spent fuel storage. However, they make no specific reference to
18 the EA itself or charge any specific errors. Therefore, the petitioners have not established any substantial probability of success on the merits of their NEPA claim and again have failed to show any irreparable ham.
B. Balancing The Harms And Equities The fact that the Comission is not persuaded that petitioners have demonstrated error in the Staff's no significant hazards consideration or made a strong showing that they are likely to prevail on the merits of their other statutory claims does not necessarily end our inquiry.
We will still balance the harms that might result to the parties or to the public should a stay be granted or denied.
The amendments allow the licensee (1) to install free-standing spent fuel racks which allow high-density reracking, in turn, resulting in (2) the increase of the total authorized capacity of each pool from 270 spent fuel assemblies to 1324 spent fuel assemblies. The licensee will have no need for this increased authorized capacity for another five years, i.e., until it is ready to exceed the rods' originally authorized capacity. Thus, the grant of a stay of the amendments to the l extent they authorize the storage of more than 270 fuel assemblies in 1
either pool at Diablo Canyon will result in no harm to PG&E or the public interest. Against this absence of harm, we must balance the asserted harm to petitioners (i.e., the denial of their right to a prior hearing). Notwithstanding our views on petitioners' likelihood of success on the merits, a balancing of these equities argues in favor of
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staying the second portion of the amendment, the actual five-fold spent fuel storage increase. Therefore, we stay, pending completion of the on-going license amendment hearing and initial decision, that part of the license amendments which authorizes the storage of more than 270 spent fuel assemblies in either pool at Diablo Canyon. g A balancing of the harms results in a different result with respect to the remainder of PG&E's reracking program. The Diablo Canyon spent fuel pools are presently " dry," or empty, unlike the usual situation which confronts a utility embarking on a reracking program. Thus, the present reracking program at Diablo Canyon, which petitioners seek to stay, is being conducted with no radiological risk to workers and with much less expense to the utility and its ratepayers than is normally the case when reracking a " wet" pool. Obviously, this reracking procedure is preferable to one which would not only cost more, but would also expose the workers to more potential radiological harm. If we stay the action, PG&E will be faced with two practical options. A rev,iew of those options inevitably leads to the conclusion that granting petitioners' stay will not preserve the present reracking environment.
To continue the status quo of a dry, non-radiological reracking, PG&E could elect to shut down Diablo Canyon from the time of its scheduled refueling (for Unit 1, September,1986) until the completion of the hearing process which has just begun. However, PG&E asserts, without contradiction, tha.t this option will cost it, and ultimately its ratepayers, an enormous sum. Indeed, if the costs are anywhere close to the one million dollars a day which PG&E asserts, this cost would
20 i quickly outweigh the economic savings accomplished by dry, non-radiological reracking.
To avoid or reduce this enormous economic burden, PG&E could elect a second option of reinstalling the old racks which were authorized prior to the amendments now at issue. However, this option itself entails great expense and dictates that PG&E ultimately accomplish any future reracking in a " wet" pool with the attendant radiological risks to the workers. Therefore, in our view, the present favorable reracking situation and the fact that, as a practical matter, this situation would be drastically altered were petitioners stay granted, strongly tilts the equities in favor of denying the stay.
Petitioners have presented nothing which leads us to believe that Diablo Canyon must forever operate within the confines of its original spent fuel pool design. Moreover, we do not believe that any
. technological reason exists which precludes Diablo Canyon from ever being reracked and expanded in capacity beyond that originally authorized. Thus, granting petitioners' stay guarantees that any such future reracking will be done only at great costs to PG&E, increased radiological risks to its workers or, more likely, both. On the other hand, while we do not prejudge the merits of the on-going license amendment hearings, the NRC Staff has presented a strong technical case in support of the reracking which has been proposed and which is underway. If the hearing process ultimately supports the Staff's position, the Diablo Canyon reracking program will have been
21 accomplished far more safely and far less expensively than would be the case if we grant a stay now.
We recognize, since we do not prejudge the underlying merits of the on-going hearing, that it is not impossible that the hearing process may reveal that additional measures are necessary to provide adequate protection to the public health and safety. If it does, those measures will be required regardless of the cost to PG&E. In such an event, the savings to be realized from denying petitioners' requested stay may not be as great as appear likely at this time. Likewise, PG&E accepts the risk that the Licensing Board may deny the requested amendment entirely, resulting in an order to return the pool to its original status.
Nevertheless, avoiding a full stay at this time preserves a significant likelihood of substantial savings in radiological risk to workers and economic costs to ratepayers in any future reracking activity.
Therefore, we decline to stay the reracking program to the extent that it permits the storage of up to 270 spent fuel assemblies in a high-density configuration.
Similarly, we will allow PG&E to continue installation of the free-standing spent fuel racks. As the Staff has noted, these racks are seismically qualified and represent an established technology. Thus, we see no need to stay PG&E's selection of free-standing racks as the preferred method of implementing its authority under the license amendments. This construction is best done at a time when the spent fuel pool is empty to avoid needless exposure of the construction workers to radiological hazards associated with reracking of a l
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22 contaminated spent fuel pool and the needless additional risks entailed in handling and moving already stored fuel. Moreover, construction with an empty pool will result in a substantial saving of money both to the licensee and, eventually, to the ratepayers. A stay of construction at this time would constitute a significant harm to all these parties.
IV. Summary In summary, we stay that part of the Staff's May 30 Order which allows, on an immediately effective basis, PG&E to store more than 270 spent fuel assemblies in either of the spent fuel pools at Diablo Canyon. This stay will remain in effect until the completion of the amendment hearings now before the Licensing Board and until that Board's initial decision. As far as we are concerned, PG&E should be allowed to continue with installation of the free-standing spent fuel racks and should be permitted to insert spent fuel into those racks. The licensee's authority to do this, however, is presently restrained by the
23 conditions imposed by the United States Court of Appeals for the Ninth Circuit. See n. 1, supra. Obviously, until that Court lifts or modifies its restrictions, PG&E is not free to act in violation of them.
Comissioner Asselstine disapproved this order, his views are attached. The additional views of Chairnan Zech and Comissioners Roberts and Bernthal are also attached.
It is so ORDERED.
~3*' For ;he Comission
.,s. -s j
/ SAMUELJ]CHILK Secretary of the Comission Dated in Was ington, D.C.
this 2.d day of July,1986.
SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I cannot support the Comission's Order. The Comission should have issued a complete stay of the license amendment rather than a partial stay, for two very fundamental reasons. First, the legislative history of the Sholly amendment indicates that it was Congress' understanding that the Sholly provision would not be used to grant, without a prior hearing, a license amendment for reracking or other expansion of spent fuel pool storage capacity. Second, the staff's "no significant hazards considera-tion" determination does not comply with the Sholly amendment.
It is clear to me from the legislative history of Section 12 of Public Law 97-415 (the Sholly amendment) that Congress did not intend that the authority granted by section 12 be used to approve reracking amendments prior to the completion of any requested hearing. The following exchange on the House floor on November 5,1981 illustrates this:
Mrs. Snowe. Would the gentleman anticipate this no significant hazards consideration would not apply to license amendments regarding the expansion of a nuclear reactor's spent fuel storage capacity or the reracking of spent fuel pools?
Mr. Ottinger. If the gentlewoman will yield, the expansion of spent fuel pool and the reracking of the spent fuel pools are clearly matters which raise significant hazards considerations, and thus amendments for such purposes could not, under section 11(a), be issued prior to the conduct or completion of any requested hearing or without advance notice.
127 Cong. Rec. 8156 (1981).
In the Senate the following language in the Report of the Comittee on Environment and Public Works recommending approval of S.1207 clearly evidences the Committee's understanding that reracking would not be the subject of a no significant hazards consideration (NSHC) determination:
The Comittee recognizes that reasonable persons may differ on whether a license amendment involves a significant hazards consideration.
Therefore, the Comittee expects the Commission to develop and promulgate standards that, to the maximum extent practicable, draw a clear distinction between license amendments that involve a significant hazards consideration and those that involve no significant hazards consideration. The Comittee anticipates, for example, that, consistent with prior practice, the Commission's standards would not permit a "no significant hazards consideration" determination for license aliiendments to permit reracking of spent fuel pools.
S. Rep. No.97-113, 97th Cong., 2d Sess. 15 (1981).
Although not a part of the published legislative history, there was also the following exchange between Senator George J. Mitchell and then-Majority Counsel James Asselstine at the Comittee's markup of the Senate bill:
Senator Mitchell: There is, as you know, an application for a license amendment pending on a nuclear facility in Maine which deals with the reracking storage question. And am I correct in my understanding that the NRC has already found that such applications do present significant hazards considerations and therefore that petition and similar petitions would be unaffected by the proposed amendment?
Mr. Asselstine: That is correct, Senator. The Comission has never been able to categorize the spent fuel storage as a no significant hazards consideration.
The Conference Report is silent on the matter of spent fuel pool reracking.
Thus, while the legislative history in this particular issue is sparse, what does exist clearly reflects an understanding and an intention on the
part of both the House and the Senate that reracking of spent fuel pools would not be the subject of a no significant hazards consideration determination.
Moreover, I believe that the use of the Sholly amendment authority to approve reracking amendments before the completion of any required hearing goes far beyond the justification offered by the Commission when it requested the Sholly amendment. In requesting the enactment of the Sholly amendment, the Commission described in some detail the situations in which it foresaw a need for this authority. The Commission emphasized the need for a large number of unforeseen and unanticipated changes to the detailed technical specifications in the operating licenses for nuclear power plants that arise each year through such activities as refueling of the plant.
The Commission argued that the need to hold a hearing on each of these changes, if one is requested, would be burdensome to the Commission and could disrupt the operation of a number of plants. In order to avoid this problem, the Commission asked the Congress to reinstate the authority that the Comission had exercised in similar situations since 1962. A reracking amendment is substantially different from the situations described by the Commission in requesting the Sholly amendment because reracking involves a substantial physical modification to the plant and because the need for reracking can be anticipated.
Therefore, I do not believe that the use of the Sholly provision to grant an amendment to rerack a spent fuel pool was anticipated or approved by Congress. The Commission's regulations should not have allowed for a no
4 significant hazards considerations determination for the reracking of spent fuel pools, and the staff should not be permitted to issue an immediately effective amendment for reracking of the Diablo Canyon pool prior to the completion of the hearing requested in this case.1/
My second fundamental problem with the staff's action in this case is that its NSHC determination does not comply with the Sholly amendment because it addresses the wrong issue. The staff's determination is based
- on the merits of the amendment itself -- i.e., on whether the amendment poses significant additional risk. Staff reviewed each of the three criteria in section 50.92 and found no significant increase in the probability and consequences of an accident, no possibility of a new or different accident, and no significant reduction in a margin of safety.
- Since staff found no significant additional risk, it concluded that there were no significant hazards considerations.
i 1/ The Commission's stay removes some part of the problem by limiting the licensee's authorization to the storing of 270 fuel assemblies. Thus, the licensee may only store fuel assemblies in the number permitted in the technical specifications. However, the licensee is permitted by the amendment to store the assemblies in a density of less than 21 inches apart, the density called for in the teclinical specifications.
i Further, under the Commission's Order, the licensee may store the assemblies in racks which do not conform to those described in the Final Safety Analysis Report (FSAR). They are free-standing rather than bolted down. The Connission has not addressed the question of whether that change alone -- free standing racks as opposed to bolted racks -- would require a license amendment. It appears that it may because it may involve an unreviewed safety question. See, 10 CFR 50.59(c). Because there is a license amendment necessary for the change to free-standing racks and because the amendment permits a change in density of the fuel assemblies, the Sholly provision still must be used to avoid the necessity for a prior hearing. I do not believe Congress intended that the Sholly provision be used in cases such as this, i
Unfortunately, that determination is not the determination called for by the Sholly amendment. Rather, as its legislative history makes abundantly clear, the Sholly provision requires the Commission to determine whether the amendment presents any significant safety questions, i.e.,
whether the amendment poses any significant new or unreviewed safety issues for consideration. The report of the Conference Comittee on the legisle ich enacted the Sholly amendment emphasizes that in making a determination of no significant hazards consideration, the Comission is not to prejudge the merits of the amendment -- i.e., whether t a plant could operate without significant additional risk as a result of the amendment. Instead, the Comission is merely to determine whether there are significant health or safety issues involved. H.R. Rep. No. 884, 97th Cong.,2dSess.37-38(1982). The Comission is to examine the proposed amendment and determine whether the Commission, in making a decision'on the amendment application, would have to consider and address significant health and safety questions. As the report of the Senate Comittee which recomended the Sholly amendment states: "The determination of 'no significant hazards consideration' should represent a judgment on the nature of the issues raised by the license amendment rather than a conclusion about the merits of those issues." S. Rep. No. 113, 97th Cong.,
1st sess. 15(1981). See also, H. Rep. No. 884, 97th Cong., 2d Sess. 37-38 (1982); S. Rep. No. 113, 97th Cong., 1st Sess. 14-15 (1981).
In addition, in seeking the amendment, the Comission repeatedly presented the issue to various Congressional comittees as a question of
6 significant issues, not as a question of significant risk. Then-Chairman Hendrie told the House Subconunittee on Energy and the Environment that whether there were significant hazards considerations was a question of whether there were "significant safety questions involved," whether there were "new safety issues raised, no new unreviewed hazards connected with an amendment," and whether the Commission saw "any safety-connected issues" in the amendment. " Nuclear Regulatory Comission Operating Licensing Process:
Oversight Hearing Before the Subcomittee on Energy and the Environment of the House Comittee on Interior a'nd Insular Affairs," 97th Cong.,1st Sess.
30,32and75(1981)(statementsofJosephHendrie,ChairmanNRC).
Chairman Hendrie also explained the meaning of "no significant hazards consideration" to the Senate Subcomittee on Nuclear Regul'ation. He said, "We are dealing here with a class of amendments that involve no safety questions in our view of any significance," and in answer to a question from Senator Hart explained that "It means no significant questions of public health and safety." " Nuclear Powerplant Licensing Delays and the Impact of the Sholly Versus NRC Decision: Hearings Before the Subcomittee on Nuclear Regulation of the Senate Comittee on Environment and Public Works," 97th Cong., 1st Sess. 138, 149, 156 (1981) (statements of Joseph Hendrie, Chairman NRC). Based upon the Comission's testimony, Congress understood that the question of no significant hazards considerations was a question of significant safety issues, not a question of significant
. additional risk, and that the NSHC determination would not be a judgment on the merits of the amendment. 2_/
The NRC staff has, in the past, argued that this interpretation of the Sholly amendment would have required them to ignore all of the technical information available which indicates that the proposed amendment creates no additional risk. The argument apparently is that in determining whether the issues raised are significant, the staff should be able to consider all information available to it on the merits of the amendment application.
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This argument might have some validity if the no significant hazards consideration determination were to be made on whether there is "signifi-cant additional risk." But, the question is the significance of the questions raised by the application, not the significance of any additional risk. Further, to follow this argument to its logical extreme could result in the Commission almost never making a determination that there are significant hazards considerations. The staff and licensee need only complete all of their analysis before making a NSHC determination, and any amendment staff would eventually approve would not contain any significant hazards considerations, regardless of the significance of the questions the staff had to resolve in deciding whether to grant the amendment application
-2/ Further, in 1978 the Congress failed, when specifically requested, to change the "the no significant hazards consideration" language in section 189 of the Atomic Energy Act to "no significant additional risk to the public health and safety." See, " Nuclear Siting and Licensing Act of 1978: Hearings Before the Subcommittee on Nuclear Regulation of the Senate Conunittee on Environment and Public Works,"
95th Cong., 2d Sess. 183-84 (1978).
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or to attach conditions thereto. Since staff rarely, if ever, approves a license amendment that involves significant additional risk, such an interpretation of the Sholly Amendment would permit virtually all license amendments to be issued without a prior hearing. Such a result is manifestly inconsistent with the position taken by the Comission in requesting the legislation and with the intent of Congress in enactirg the Sholly Amendment.
Staff's Safety Evaluation Report (SER) and no significant hazards
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consideration determination in the Diablo Canyon reracking are totally devoid of any evidence that staff considered whether there were significant new or unreviewed safety issues involved with granting the amendment. I cannot believe that there were not significant new safety issues which had to be resolved. Given the fact that Diablo Canyon has the highest design basis earthquake in the country (.75g), it is extremely unlikely that the staff could merely have relied on analyses of racks similar to the new racks which were used at other plants. Actually, the review would have to be very closely tied to the suitability of the racks for the Diablo Canyon site. In fact, if one reads the Technical Evaluation Report, which is attached to staff's SER, the extent of the analysis indicates that there were indeed significant safety issues the staff had to resolve before approving the amendment.
Since there is no evidence that staff considered whether there were new or unresolved safety issues involved with the Diablo Canyon reracking amendment and since the evidence of the SER suggests that there were indeed
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significant safety questions to be resolved, the record supports a conclusion that staff's NSHC determination does not comply with the Sholly provision. Further, as I explained above, I do not believe that Congress intended the Sholly provision to be used to allow reracking prior to the completion of any requested hearing. I would, therefore, stay the Diablo Canyon reracking amendment completely.
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Additional Views of Chairman Zech and Commissioners Roberts and Bernthal Commissioner Asselstine in his separate views quotes several passages from the legislative history of the Sholly amendments that he interprets as expressing Congressional intent to preclude the Commission as a matter of law from making a no significant hazards consideration finding for a reracking amendment. He also argues that the staff's determination goes counter to the legislative history because, in his view, it addresses the merits of the amendment. The short answer to Connissioner Asselstine's concerns is that .
the staff reached its determination only after a careful and proper application of the regulations that the Commission adopted, after a lengthy rulemaking, to implement the Sholly amendments. Commissioner Asselstine's quarrel is with the regulations themselves rather than with the staff's conclusion that the criteria adopted by the Commission for a no significant hazards consideration finding were met by the Diablo Canyon reracking amendment.
The question whether the Commission's criteria complied with the intent of Congress was exhaustively considered during the rulemaking and resolved in the affirmative. It need not be revisited here. We would note, however, that during Congress' consideration of the Sholly amendments the legislators had before them the criteria that the Commission proposed to adopt for a no significant hazards consideration finding and commented approvingly in both the Senate and House reports. See 51 Fed. Reg. at 7748, cols. 2. Moreover, as Commission Asselstine admits, the Conference Report makes no mention of reracking amendments and affords no support whatever for the view that such amendments necessarily involve a significant hazards consideration.
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l Comissioner Asseltine also refers to an exchange between himself, as then-Majority Counsel of the Senate Comittee on Environment and Public Works, and Senator Mitchell, in which he advised the Senator that "[t]he Comission has never been able to categorize the spent fuel storage as a no significant hazards consideration." This quotation suggests that the Comission had previously addressed the question whether a no significant hazards consideration finding could be made for a reracking and concluded as a general matter that it could not. In fact, the Comission had made no such determination and had not had occasion to confront the question as of that -
time. At that time, as a matter of policy, not law, the Comission had held hearings prior to the effectiveness of reracking amendments. Subsequently, the Comission conducted a detailed review and study of reracking procedures and concluded that this policy need no longer continue with regard to certain types of reracking, such as the one being conducted here. The record of the Comission rulemaking implementing the Sholly amendments sets out the support for the Comission's later conclusion that a no significant hazards consideration finding can in fact be made for certain types of rerackings, of which Diablo Canyon is one.
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