ML20206J412

Response to Sierra Club & San Luis Obispo Mothers for Peace 860616 Request for Stay of Amends 8 & 6 to Licenses DPR-80 & DPR-82,respectively.Argument Does Not Satisfy 10CFR2.788(e) Re Burden of Persuasion,Irreparable Injury & Likely Success

ML20206J412
Person / Time
Site:	Diablo Canyon
Issue date:	06/25/1986
From:	Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
Shared Package
ML20206J417	List: ML20206J412 ML20206J420 ML20206J475
References
CON-#286-690 OLA, NUDOCS 8606270162
Download: ML20206J412 (12)

Text

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UNITED STATES OF AhlE ICA NUCLEAR REGULATORY COL 11SSION ( h. Y (QI BEFORE Ti!E COMMISSlhN 3 l /

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PACIFIC CAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) 50-0"O CLA

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(Diablo Canyon Nuclear Power Plant ) (Spent Fuel Pc.ol)

Units 1 and 2) )

NRC STAFF RESPONSE TO REQUEST FOR A STAY BY SIERRA CLUB AND MOTIIERS FOR PEACE l

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• Henry J. McGurren Counsel for NRC Staff June 25,1986 8606270162 86062S S.

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UNITED STATES OF AMERICA [ -

NUCLEAll REGULATORY COMMISSIOP )

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PACIFIC CAS AND ELLCTRIC ) Docket Nos. 50-275 OLA CO:JPAliY ) 50-323 OLA I )

(Diablo Canyon Nuclear Pcuer Plant ) (Spent Fuel Pool)

Units I und ?) )

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l NRC STAFF RESPONSE TO REQUEST FOR A STAY BY SIEH11A CLUB AND MOTIIERS FOR PEACE -

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llenry J. McGurren Counsel for NRC Staff June 25, 198G

UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSIO /

DEFORE THE COMMISSION f_ g I

In the Matter of )

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PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275'OLA COMPANY ) 50-323 OLA

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(Diablo Canyon Nuclear Power Plant ) (Spent Fuel Pool)

Units 1 and 2) ) .

NRC STAFF RESPONSE TO REQUEST FOR A STAY BY SIERRA CLUB AND MOTilERS FOR PEACE I. IfTRODUCTION i

On June 16, 1980, the Siorra Club, Santa Lucia Chapter and the San Lcuis Obispo Mothers for Peace (hereinafter "Intervenors") filed with the Comraission a request for a stay of the effectiveness of Ataendment number 8 to FacEity Operating License No. DPlt-80 and Amendment number 6 to Facili-ty Operating License No. DPR-62 for the Diablo Canyon Nuclear Power Plant, Unit.s 1 and 2, respecthely, issued by the Commission May 30,1986 (herein-t after " Application") .

II. BACKGROUND On Octobcr 30, 1985 the Pacific Gas and Electric Company (PG &E or the Licensee) requested amendments to authorize the Licensee to increase the Unit 1 and Unit 0 spent fuel pool storage capacity from 270 to 1324 storage locations for each unit, by reracking the spent fuel pools with a combination of poisoned racks and nonpoisoned racks in a two-region arrangement. On

January 13, 1986 the Comtaission published in the Federal Register its notice of " Consideration of Issuance of Amendments to Facility Operating Licenses DPR-80 and DPR-82 for Diablo Canyon Power Plant, Units 1 and 2, Respec-tively, and Proposed No Significant Hazards Consideration Determination and

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Opportunity for liearing" (hereinafter " Individual Notice").1 51 Fed. Reg. 1451. In this notice the Commission made the following determination:

On the basis of the foregoing discussion of the elements of 3 10 CFR 50.92 and because the proposed reracking technology -

) has been well developed and demonstrated, the Commission proposes to determine that operation of the facility in accor-

] dance with the proposed amendment does not involve a signif-icant hazards consideration, d. at 1455.

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In response to the Commission's notice, separate comments, requests for __

a hearing, and petitions for leave to intervene were filed by the Sierra m  : _

Club, Mothera for Peace and Consumers Organized for Defense of Environ- -

,, A mental Safety (CODES) i,. The comments and concerns relevant to the requested amendments as well as the final determination of no significant hazards consideration were addressed in the Safety Evaluation regarding the proposed amendments. -3/ This Safety Evaluation was issued on the same

[ day, May 30, 1900, that the Commission issued Amendment No. 6 and Amend-r p

ment No. 5.

~1/ The Commission published this individual notice of the requested

! amendments in addition to the required bi-weekly notice which was

• published on May 21, 1986 (51 Fed. Reg. 18,69S). See 10 C.F.R. __

? S SC.01(a)(2)(i). _'

A 1/ An Atomic Safety and Licensing Board has been established (by Or-der of February 21, 1986) and held a prehearing conference on Lay 13, 1906 to hear argument on the petitions for leave to inter-vene. To date the Board has not ruled on the petitioners' hearing requests, particularly with respect to the admissibility of contentions .

~3/ Safety Evaluation By the Office of Nuclear Reactor Regulation Relat-ing to the Heracking of the Spent Fuel Pools At the Diablo Canyon _'

Nuclear Power Plant, Units 1 and 2 As Related to Amendment No. 8 s to Unit 1 Facility Operating License No. DPR-80 And Amendment No. 6 to Unit 2 Facility Operating License No. DPR-82, Pacific Gas .

and Electric Company Docket Nos. 50-275 and 50-323, issued May 30, '

198G. See 51 Fed. Reg. 20,725. Related to this action, the Staff also prepared and published an Environmental Assessment.

See 51

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Fed. Reg. 19,430.

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III. DISCUSSION The traditional requirements for determining sehether to grant or deny a j ,

stay are contained in 10 C.F.R. S 2.788(e). These factors, which are not in dispute, are set forth in the Application and will not be restated herein.

In addressing the stay factors, the Appeal Board has noted:

The burden of persuasion on these factors rests on the mov-ing party. While no single factor is dispositive, the most crucial is whether irreparable injury will be incurred by the

movant absent a stay. To meet the standard of making a strong showing that it is likely to prevail on the merits of its appeal, the movsnt must do more than merely establish possi-ble grounds for appeal. In addition, an " overwhelming show-int; of likelihood of success on the merits" is necessary to obtain a stay where the showing on the other three factors is weak.

Alabama Power Company (Joseph !.l . Farley Nuclear Plant, Units 1 and ),

C LI-61-07, 14 NRC Tf 5, 797 (1561) (footnotes omitted) ; see also, Public Service Company cf Indiana, Inc. (Flarble 11111 Nuclear Generating Station ,

1* nits 1 and 2), ALAB-437, 6 MRC G30, 630 (1977); Philadelphia Electric Company (Liuerick Generating Station, Units 1 and 2), ALAD-789, 20 NRC 1443, 144(, (ICE 4). The Staff will address each of the four factors found in 10 C.F.I' . S 2.76S(e) in turn.

A. Likelihood of Prevciling on the Merits The thrust of the Intervenors' argument on the first factor, likelihood of success on the merits, is that the amendments were issued prior to any

. public hearing in violation of Section 189(a) of the Atomic Energy Act. Ap-plication at 3. The Intervenors' argument has no merit. Section 189(a) of the Atomic Energy Act, as amended by Public Law 97-415, allows the Com-mission to issue and make immediately effective any amendment to an operat-ing license upon a determination by the Commission that such amendment

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involves no significant hazards consideration, even where a hearirig has been s requested. Section 169a of the Act states, in relevant part: -4/

(2)(A) The Commission may issue and make immediately effec- _

L tive any amendment to an operating license, upon a determi- _

nation by the Commission that such amendment involves no significant hazards consideration, notwithstanding the penden-cy before the Commission of a request for a hearing from any person. Such amendment may be issued and made immediately effective in advance of the holding and completion of any re-quired hearing.

Consistent with the Commission's revised regulations, including 10 C .F . R . S 5 0. S 1, 5 / once the final determination is made that the proposed t

! amendment involves no signi'ieant hazards considerations, the NRC may (up-on making the other requisite health and safety findings) issue the request-ed amendment despite the fact there has been a request for a hearing on the L umendment and no hearing has yet been held. Any hearing on the amend-ment would be held after the amendment was issued and effective. G/ Only 4/ This provision was added by Pub.L.97-415, section 12a, to change the result reached by Sholly v. NRC 651 F.2d 780 (1980), rehearing denied, 651 F.2d 792 (1981), vacated and remanded, 459 U .S.1194 (19%), vacated and remanded 706 F.!d 1229 (1983). The Commis-cien implemented the provisions of Pub.L.57-415 by amending its regulaticas . (See 51 Fed. Reg. 7744 (March 6,1986)).

5/ The Intervenors additionally assert that requirements for public par-ticipation of section 50.91 were ignored. To the contrary all the requirements of section 50.01 were complied with including the public notice and comment provisions of section 50.91(a). See Individual Notice, 51 Fed. Reg. 1451, 1455.

-6/ Final Procedures and Standards on No Significant Hazards Consider-ations , 51 Fed. Reg. 7744, 7759 (March 6, 1986). There the Com- ,

mission stated: "New S 50.91 also permits the Commission to make an amendment immediately effective in advance of the conduct and completion of any required hearing where there has been a no sig-nificant hazards determination ." Furthermore, as the Commission stated ," [iln short, the no 'significant hazards consideration' stan-dard is a procedural standard which governs whether an opportunity for a prior hearing must be provided before action is taken by the Commission . . ." Id_. at 7746.

the Commission on its own initiative can review the Staff's final no signifi-cant hazards determination. Section 50.5S(b)(6) of 10 C.F.R. ' Part 50 provides :

(G) Nu petition or other request for review of or hearing on the staff's significant hazards consideration determination will be entertained by the Commission. The staff's determination is final, subject only to the Commission's discretion, on its own initiative, to review the determination.

Accordingly, even though the Intervenors are seeking to litigate contentions raisini; safety and environmental concerns with respect to the amendments, the resolution of such matters must await the completion of the hearing they have requested. Furthermore, it is clear from 10 C.F.R. S 50.58(b)(6) that the Intervenors may not question the Staff's final no significant hazards con-sideration determination.

Additionally, the Intervenors argue that they are likely to prevail on the merits in that requirements of Section 132 and 134 of the Nuclear Waste Policy Act (WPA) cf 1962 b were ignored by the Commission. Application, at 0, 4. With re.=pect to S 132 of the WPA, the Intervenors assert that the Commission did not act in a manner consistent with the " views of the popula-tion surrounding such reactor" (S 132 paragraph 5), Application at 3, and that the action is inconsistent with the protection of the public health and safety and the enviror. ment (S 132 paragraph 1), Application at 4. llowever, the facts do not support these arguments. As noted above, the Commission

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gave notice in the Federal Register which indicated that any member of the public whose interest may be affected may petition for leave to intervene with regard to the requested amendments and, moreover, as a party, seek to take advantage of the hybrid hearing procedures established pursuant to 7/ 42 U .S.C . SS 10,152, 10,154, respectively.

S 134 of the WPA. b Further, if a hearing is ordered, any party has the right to participate fully in the conduct of the hearing. (See, generally, 10 C.F.R. Part E). Furthermore, a non party may request an opportunity to express his or her views in the form of a limited appearance. See, 10 C . F . R . S 2. 715. Accordingly, the Commission has provided an appropri-ate forum for consideration of the views of the population.

With regard to the asserted violation of Section 134 of the WPA (the hybrid hearing section) the Commission made clear, in the statement of con-siderations accompanying the promulgation of the hybrid hearing regulations, that the timing of such hearing vis a vis the issuance and effectiveness of the spent fuel pool amendments is governed by the "Sholly provisions". 9/

The Ccmmission stated with respect to the hybrid hearing:

If the Comuission determined that a particular license amend-uent request involved a significant hazards consideration, it would provide an opportunity for a prior hearing; otherwise a hearing could be held after issuance of the amendment. Sea 10 CFR 50.58, 50.91 and 50.92.

51 Tcd. Reg. 41,662, 41,667. Section 134 of the WPA does not, as Interve-nors seen to suggest, mandate that a prior hearing be held.

Accordingly, the Intervenors' arguments concerning Section 132 and 134 of the WPA do not support the requested stay.

With respect to the health, safety and environmental aspects of Interve-nors' arguments, these too are without merit. The Staff properly assessed each of these matters in its Safety Evaluation Report and Environmental As-sessment. And, as discussed in the appended Affidavit of E. Clyde Herrick 8/ Federal Register notice, dated January 13, 1986.

9/ Hybrid Hearing Procedures for Expansion of Spent Nuclear Fuel Storage Capacity at Civilian Nuclear Power Reactors, 50 Fed.

j Reg. 41,661, 41,667 (October 15, 1985).

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(consultant to the U.S. Nuclear Regulatory Commission), Dr. Ferguson's

- nnalyses are based on faulty assumptions and, are, therefore, incorrect.10/

See Affidavit of R. Clyde Herrick, paragraphs 1-10.11/

Finally, Intervenors argue, based on general references to Dr. Ferguson's Affidavit, that the proposed amendments fail to meet the cri-teria of 10 C.F.R. S 50.02 regarding no significant hazards considerations.

Application at 5. Ilouever, the attached Affidavit of R. Clyde Herrick dem-cnstrates that Dr. Ferguson's analyses are based on faulty assumptions and are, therefore, incorrect. See Affidavit of R. Clyde Herrick ,

paragraphs 1-10. In any event, the final no significant hazards determina-tion is not subject to challenge, as previously discussed. See 10 C.F.R.

S 50.5S(b)(6).

B. Irreparable lIarm With regard to the second factor, irreparable harm, which is generally considered the most important factor b Intervenors argue that they will be irreparably injured in several respects. Application at 7. Specifically, they state that: (1) the reracking substantially increases the risks to the prop-et ty and personal safety of the surrounding population; (2) the level of po-

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10/ The Affidavit of Dr. Richard B. Ferguson was attached to the Inter-venors' Application.

In additicn, attached is the Affidavit of Walter L. Brooks which ad-

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dresses the criticality aspects raised by Dr. Ferguson ( Affidavit, paragraph 11) regarding reduction of spacing between assemblies and potential collisions of the racks and indicates that this matter was addressed by the Staff in its Ssfety Evaluation Report.

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Cleveland Electric Illuminating (Perry Nuclear Power Plant, Units 1 and 2), ALAD-820, 20 NRC 743, 746 (1985); Duke Power Company (Catawba , Units 1 and 2), ALAD-794, 20 NRC 1630, 1633 (1984);

Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443,1446 (1984).

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! tential radioactive contamination of the facility will be significantly increased;

- (3) there has been a denial of due process because the action has been tak-en without a hearing; (4) the Nuclear Waste Policy Act of 1982 has been violated because the views of the surrounding public were not taken into consideration in determining to permit the reracking; and, (5) because there l has been a violation of NEPA there is a presumption that injunctive relief should be grar.ted.

For the reasons set forth below , the Staff does not believe that the arguments made by the Intervenors sustain their burden under 10 C.F.R.

l S 2.788. Thus, Intervenors have not established irreparable harm.

l In crder to establish the requisite irreparable harm the moving party must do more than speculate as to possible injury. An intervenor must demon-strnte that the injury is both certain and great. Perry, ALAB-820, supra,

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at 746. In this case, it is clear that the Intervenors have not met this bur-den. The affidavit of Dr. Ferguson certainly does not provide the informa-tion neecssary to establish the likelihood of harm is either certain or great.

As set forth in the Affidavit of R. Clyde Herrick appended hereto, the as-

{ sum plians utilized by Dr. Ferguson are incorrect. Thus, the Affidavit of I Dr. Ferguson, even taken in its most favorabic light, does not support the request for stay. Merely raising the question of significant risks does not satisfy the Intervenors' burden of establishing irreparable harm. Moreover, as explained in the Affidavit of R. Clyde Ilerrick, the new racks do not increase the risk to the public health and safety. See Affidavit of R. Clyde lierrick, at 8.

Intervenors' next argument is that the Commission's action in issuing the amendments causes them irreparable harm because the Commission's ac-tion was taken prior to a hearing. Application at 8. As set forth above in 1

our Mscussion of the first factor, the Commission's Regulations contemplate that in situations such as the present were a final no significant hazards ccasideration deterraination has been made, any hearing will be held after the issuance cf the amendments. These regulations implement the amend-ments to Section 185 cf the Atomic Energy Act, as amended, which reflects Congress' determination that due process rights are adequately protected by an af ter-th e-fact hearing. 13/ Accordingly, Intervenors have not shown that any " fundamental right" is involved such that a post-hearing on the amendments issued would not satisfy due process requirements.

Texas Utilities Electric Company (Comanche Peak Steam Electric Station ,

Unit 1), CL1-8G-4, 23 NRC 113,102-123 (1980).

Finally , Intervenors suggest that the Commission in issuing the rcracking license amendments has acted in violation of NEPA. In this case, the Ccmmission in issuing the amendments acted in a manner consistent with its rc;;ulations and NEPA. The environmental assessment that was issued was in conformity with 10 C.F.P.. Part 51 and Intervenors do not indicate why the uetermination made by the Commission was not adequate. This ar-gun.cnt is, therefore, unfounded.

C. liarm to Other Parties In connection with the third factor, harm to other parties, Intervenors, while recognizing that a potential delay in the reracking is inherent when a stay is granted, fail to address the potential for real harm to the Licensee and its employees. Notably, Intervenors fail to address the significance of 13/ 10 C.F.R. S 50.90 ct. seg. Specifically, 10 C.F.R. S 50.91(a)(4) provides in part that, "[t]he Commission need hold any required hearing only after it issues an amendraent, unless it determines that a significant hazards consideration is involved . . . ."

the fact that the spent fuel pools are at present dry and empty. If refuel-

. ing, which is scheduled in the near future is required to be perfornied prior to reracking, subsequent reracking would have to take place in a radioactive

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environment and would require that the work be performed under water.14/

The effect would be to needlessly expose workers to radiological risk and incrase the burden (as well as the expense) of reracking. Accordingly, this factor weighs against granting the relief requested by the Intervenors.

D. Public Interest In connection with the fourth factor, where the public interest lies, the Intervenors have, in view of their failure to satisfy the first two factors, not established that the public interest would support the relief they have requested. 5 IV . CONCLUSION For the fcrcgoing reascns, Intervenors have failed to satisfy the re-quirements cf 10 C.F.R. S 0.788 and thus, the application for a Stay should be denied.

Itespectfully subnitted, f

' V Hen J. SicGurren Counsel for NIC Staff Dated at Bethesda,5hryland this 25th day of June, 1980

~~~14/ See Affidavit of James D. Shiffer attached to Pacific Gas and Electric Company's Answer in Opposition to Intervenors' Application for a Stay, dated June 18, ISS6.

15/ Southern California I'dison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-G73,15 NRC 6SS, 600 (1980); and see Perry, ALAB-520, supra, at 749.