ML20206D732
| ML20206D732 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/18/1986 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20206D737 | List: |
| References | |
| CON-#286-646 OLA, NUDOCS 8606200176 | |
| Download: ML20206D732 (9) | |
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UNITED STATES OF AMERICA 1
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BEFORE THE COMMISSION k
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In the Matter of
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PACIFIC GAS AND ELECTRIC
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Docket Nos. 50-275 0.L.A.
COMPANY
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50-323 0.L.A.
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(Diablo Canyon Nuclear Power
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Plant, Units 1 and 2)
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)
l PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER IN OPPOSITION TO INTERVENORS' APPLICATION FOR A STAY On June 16, 1986, the San Luis Obispo Mothers For Peace and the Sierra
- Club, Santa Lucia Chapter
("Intervenors") filed with the Appeal Board a document styled "Intervenors' Application for a Stay" seeking a stay of "the effectiveness of the NRC's May 30, 1986 authorization of Licensing Amendments for the Diablo Canyon nuclear power plant."
Pacific Gas and Electric Company, by this filing, respectfully requests that the Atomic Safety and Licensing Appeal Board and the Nuclear Regulatory Commission deny the application in all respects.
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BACKGROUND On October 30, 1985, Pacific Gas and Electric Company ("PGandE") requested, by letter, amendments for its operating licenses for Diablo Canyon Nuclear Power Plant, Units 1 and 2 ("DCNPP") which would authorize PGandE to increase the spent fuel storage capacity at DCNPP.
On January 13,
- 1986, the Nuclear Regulatory Commission published in the Federal Register a notice entitled
" Consideration of Issuance of Amendments to Facility Operating Licenses DPR-80 and DPR-82 for Diablo Canyon Nuclear Power Plant, Units 1 and 2, Respectively, and Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing" concerning the amendment requests (51 Fed. Reg. 1451).
In response to this notice the San Luis Obispo Mothers For Peace ("MFP") and the Sierra Club, Santa Lucia Chapter (" Sierra Club") filed petitions 1
l for leave to intervene on February 7 and 10, 1986, respectively.
I On March 28, 1986, the Atomic Safety and Licensing Board
(" Licensing Board") entered its order granting intervention by MFP and the Sierra Club, }/ allowing the J/
The Sierra Club's initial filing was defective but allowed to be corrected through a subsequent filing by j
the Licensing Board.
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filing of contentions, and setting the matter for prehearing conference on May 13, 1986. 2f On May 29, 1986, the NRC caused to be published in the Federal Register its Notice of Issuance of Environmental Assessment and Finding of No Significant Impact (51 Fed. Reg. 19130).
On May 30, 1986, the NRC issued its related Safety Evaluation.
On that same date, the Notice of Issuance of Amendments to Facility Operating Licenses and Final Determination of No Significant Hazards Consideration was issued and served on all parties.
II LEGAL ARGUMENT Intervenors' Application for a Stay is fatally defective both procedurally and as a matter of substance.
The Application was not filed in a timely manner.
The Application is supported in total by an affidavit which is replete with opinion testimony offered by a person who is not shown to be qualified to render such opinions.
The Application is based on the premise that Intervenors are being denied a hearing when in fact they have been granted intervention and a hearing schedule is being formulated by 2f While a number of proposed contentions were agreed to by all parties at the prehearing conference, others were contested by one or more parties.
The Licensing Board hoped to issue its order on the proposed conten-tions and a hearing schedule in approximately thirty 4
days from May 13, 1986.
As of this writing that order has not yet been issued. -
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the Licensing Board.
Finally, the Intervenors do not meet their burden under any of the criteria of 10 CFR 2.788(e).
A.
The Application Was Not Timely Filed Intervenors had ten (10) days from May 30, 1986 to file their Application for a Stay under 10 CFR 2.788(a).
That regulation provides that "[w]ithin ten (10) days after service of a decision or action any party to the proceeding may file an application for a stay of the effectiveness of the decision or action pending filing of and a decision on appeal or petition for review."
The action complained of in this instance was the NRC's Notice of Issuance of Amendments to Facility Operating Licenses and Final Determination of No Significant Hazards Consideration which was issued and served on May 30, 1986.
Intervenors' Application was i
required to be filed by June 9, 1986.
It was not filed until June 16, 1986 and is therefore fatally defective.
l B.
The Intervenors Are Being Granted A Hearing.
l l
The Application is quite misleading in arguing that the " Commission's failure to allow public review and a i
l hearing has precluded a fair consideration.
In fact, t
the Commission is granting a hearing in this matter albeit
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after the action complained of.
On May 13, 1986, the '
Licensing Board held a prehearing conference in this matter where a number of Intervenors' contentions were stipulated to.
Other contentions were opposed by one or more of the parties and therefore taken under consideration by the Licensing Board.
The Board announced at that prehearing conference that it would issue its decision on which contentions would be admitted and set forth a hearing schedule in approximately thirty (30) days.
As of this date that decision has not issued.
However, the record is amply clear that Intervenors will indeed be given a hearing on their admissible contentions.
As shown infra, a hearing scheduled in the coming months is in no way prejudicial to i
Intervenors.
In fact, they simply and neatly avoid that issue (or "nonissue") by falsely claiming they are being denied any hearing.
C.
The Application Fails Under 10 CFR 2.788(e).
The four requirements which must be considered in determining to grant a stay are set forth in 10 CFR 2.788(e).
They 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 irrepar-ably injured 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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1.
Intervenors Have Not Shown A Like-lihood Of Prevailing On The Merits.
As stated supra, the Intervenors are being granted a hearing.
They have not shown in even an arguable way that they are likely to succeed on the merits of any of their contentions in that hearing or how, if they should so succeed, they would be prejudiced by such a result should the stay they seek not be granted.
Rather, they claim they are not going to get a hearing, that they have contentions, there is an increased likelihood of a "chernobyl type accident" and therefore they are going to be prejudiced.
Intervenors offer the affidavit of one Dr.
Ferguson, who offers no qualifications in his affidavit or otherwise, to render the relevant opinion testimony contained in his affidavit and relied upon exclusively by Intervenors' counsel in the application.
Dr. Ferguson is a physics professor with no even claimed experience or degree in the fields of seismology, earthquake engineering, civil engineering, structural engineering, mechanical engineering or any other field which would allow him to offer admissible opinion testimony (Fed.R.Evid. 702) relevant to spent fuel pool reracking.
Assuming, arquendo, that Dr. Ferguson's opinions are somehow admissible, which they are not, the opinions are conclusions without any showing of the likelihood of those opinions being correct.
His suppositions and conjecture are
- 4 matters of which contentions are made, not from which stays are granted.
The Application is defective in that there is
'I no attempt to show any likelihood that they will succeed on their contentions.
I 2.
Intervenors Have Not Shown Any Injury should The Stay Be Denied.
While Intervenors raise the spectre of Chernobyl in hopes of persuading this body to grant a stay, they fail l
to point out that should they be successful in pursuit of their contentions that the spent fuel pool can be restored to its preexisting condition prior M any increase in spent i
fuel storage.
(See p. 9 of affidavit of James D. Shiffer, attached hereto)
Therefore, Intervenors will not be prejudiced in any way by a denial of the stay.
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3.
The Granting Of The Stay Will Haru Other Parties.
As set forth in the attached affidavit of James D.
Shiffer:
It is particularly important that PGandE perform the reracking now because spent i
fuel has not yet been stored in the i
pools.
Thus, the pools remain free of l
any radioactivity.
The first refueling outage of Unit 1 is scheduled to begin in September 1986.
At that time, spent fuel, which is radioactive, will be re-moved from the reactor and placed into the pool.
This will contaminate the pools and the racks with radioactivity.
Accomplishing the raracking prior to j
storage of any spent fuel will allow
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i workers to conduct the construction activities without exposure to radiation 1
from the spent fuel or from contaminated surfaces.
Therefore, reracking at this time will minimize personnel radiation
- exposure, as required by NRC regula-l tions.
If reracking is delayed so that work must be performed while spent fuel is stored in the pool, workers will be required to use special contamination protection equipment during reracking to minimize their exposure to radiation.
Radiation pro-tection equipment can only provide partial protection from exposure, how-
- ever, and will also physically burden workers.
Thus, overall time to complete the work will increase and workers will i
be unnecessarily exposed to radiation.
Further, since spent fuel must be stored l
under water to
- provide continuous shielding and cool:,ng, all raracking l
work must also be performed under water, creating yet another difficulty.
- Thus,
" wet" reracking will increase both personnel exposure and raracking costs unnecessarily.
If the offloading of spent fuel from the i
Unit 1 reactor is delayed to allow completion of raracking work, the re-fueling outage will be correspondingly delayed.
Once a nuclear unit is ready j
to be refueled, it cannot continue to operate at full capacity.
It therefore I
must curtail operation and shortly shut-down.
This makes the unit unavailable i
for power generation for an additional time, and PGandE must therefore purchase 2
or generate more expensive replacement i
energy to supply the power that would have been generated by Unit 1.
Each day of such a delay would result in in-creased fuel costs to PGandE's rate-payers of approximately $1 million.
Be-3 cause of this large cost, PGandE has no choice but to commence the refueling outage when scheduled, resulting in i
performing the raracking " wet" if PGandE cannot complete the reracking on the current schedule. t
Reracking work is progressing now on a schedule to allow completion by mid-July.
Any delay in reracking work now i
will cause a day for day delay in the completion schedule.
Because of the tight schedule for completion of the reracking prior to the september re-fueling outage, any delay other than a few days will force PGandE to complete the reracking " wet," that is, with the radioactive spent fuel stored under water in the pool.
(Shiffer Aff., pp.
6-8) l Clearly, as set forth above, PGandE will be harmed by the granting of the stay as requested by Intervenors.
j 4.
The Public Interest Lies In The i
Denial of The Stay.
l, The physical modifications currently underway at I
DCNPP pose no threat to anyone.
The only claimed harm t
alleged by Intervenors would occur long after Intervenors' contentions would be fully heard and finally acted on.
As i
set forth in the attached affidavit of James D. shiffer, the granting of the stay would cost significant suas of money, would increase exposures to workers, and would provide no benefit.
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III CONCLUSION For all of the reasons set forth above it is respectfully requested the Application for a Stay be denied.
Respectfully submitted, ROBERT OHLBACH PHILIP A. CRANE, JR.
RICHARD F. LOCKE Pacific Gas and Electric Company i
P.O. Box 7442 San Francisco, California 94120 (415) 781-4211 BRUCE NORTON Norton, Burke, Berry & French, P.C.
i P.O. Box 10569 Phoenix, Arizona 85064 (602) 955-2446 Attorneys for Pacific Gas and Electric Company
)I By
- E* ' ' 8 -
Bruce Norton DATED:
June 18, 1986.
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