ML20207P708
| ML20207P708 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 01/15/1987 |
| From: | Chandler L, Mcgurren H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2193 OLA, NUDOCS 8701200108 | |
| Download: ML20207P708 (15) | |
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DOCKETED USimC
'87 JAN 15 P4 :29 January 15, 1987 UNITED.. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC
)
Docket Nos. 50-275 OLA COMPANY
)
50-323 OLA (Diablo Canyon Nuclear Power Plant
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(Spent Fuel Pool)
Units 1 and 2)
)
NRC STAFF ANSWER IN OPPOSITION TO SIERRA CLUB / MOTHERS FOR PEACE MOTION FOR
SUMMARY
DISPOSITION I.
INTRODUCTION On December 15, 1986, intervenors Sierra Club and Mothers for Peace (Intervenors) jointly filed a Motion for Summary Disposition (Motion), pursuant to 10 C.F.R. I 2.749, generally alleging that the NRC Staff's (Staff) failure to prepare an environmental impact statement and to adhere to the provisions of the Standard Review Plan compel the denial of l
the license amendment requested by Pacific Gas and Electric Company (PG&E or Licensee),
i For reasons discussed below, the Staff opposes the motion and urges that it be denied.
II. BACKGROUND l
As relevant to the subject motion, on October 30, 1985, the Licensee filed an application to amend its operating licenses for Diablo Canyon Nuclear Power Plant, Units 1 and 2, seeking authorization for the storage of an increased amount of spent fuel in the spent fuel pools of the respective Units.
In response to the " Notice of Consideration of p $6 7 8701200108 870115-.
PDR ADOCK 05000275 G
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' Issuance of Amendment 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" published in the Federal Register on January 13, 1986, 51 Fed. Reg. 1451, petitions for leave to intervene were filed by the Sierra Club, Mothers for Peace and Consumers Organized for Defense of Environmental Safety (CODES).
Each of these petitions was granted.
See, Licensing Board's Memorandum and Order dated June 27, 1986.
In its Memorandum and Order of June 27,1986, the Licensing Board also admitted contentions. II Based on its review of the application and associated documentation, the Staff, on May 21, 1986 and May 30, 1986, respectively, issued an Environmental Assessment and its Safety Evaluation of the proposed ac-tion.
In the Environmental Assessment, the Staff determined, inter alia, that the environmental impacts associated with the proposed l'.cer.se amendment would not be significant and that there were no superior alter-i natives.
Because of its finding of no significant environmental impact, the Staff further determined, consistent with 10 C.F.R. I 51.32, that no j
environmental impact statement need be prepared.
See 51 Fed.
Reg.19430 (May 29, 1986).
In its Safety Evaluation, the Staff concluded, among other things, that the proposed amendments complied with the Commission's regulations and that there was reasonable assurance l
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A list of the admitted Sierra Club and Mothers for Peace contentions l
that remain in dispute at this time, a number having been previously withdrawn by the respective
- parties, is attached hereto as
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' that the facility could be operated without undue risk to the public health and safety. See 51 Fed. Reg. 20725 (June 6,1986).
III. DISCUSSION The proponent of a motion for summary disposition bears the burden of proof insofar as demonstrating that no genuine issue of material fact i
exists.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant.
Units 1 and 2), ALAB-443, 6 NFC 741, 753-754 (1977); Florids Power and Light Co.
(Turkey Point Nuclear Generating Plant, Units 3 and 4),
310 (1985); Houston Lighting and Power Co.,
et al. (South Texas Project, Units 1 and 2), LB P-86-15, 23 NRC 595, 632-633 (1986);
Dairyland Power Cooperative (Lacrosse Boiling Water Reactor),
LB P-82-58, 16 NRC
- 512, 519 (1982);
6 MOORE'S FEDERAL PRACTICE, T 56.15[3] (2nd ed. 1983).
Although a motion for summary disposition need not be supported by affidavits, see,10 C.F.R. 6 2.749(a), a movant who chooses not to support his motion upon an adequate factual basis but instead relies solely on the pleadings " admits the truth of his adversary's well-pleaded allegations but denies their sufficiency as a matter of law.
And in ruling on such a motion the pleadings are to be liberally construed. "
6 MOORE'S FEDERAL PRACTICE, T 56.11[1.-1] (2nd ed.1983; footnotes omitted). " Facts" put forward in support of a motion for summary disposition must be advanced by a person competent to testify on such matters.
10 C.F.R. I 2.749(b);
Perry, supra, 6 NRC at 755-756.
In light of the these tenets, we turn e
to the instant Motion.
Notwithstanding the foregoing rudamentary principles, Sierra Club / Mothers for Peace, without the benefit of supporting affidavits or
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other proffer of facts put forward by an individual competent to do so, contend that there is no genuine issue of material fact respecting the following assertions:
(1) There has been no site-specific Environmental Impact Statement prepared concerning environmental impacts of the Diablo Canyon reracking.
(2) NP.C staff's safety evaluation was performed pursuant to its Standard Review Procedure Isic), NUREG-0800, which assumes that the spent fuel rseks do not collide with each other or the pool walls in a postulated seismic event.
(3) The proposed high-density spent fuel racks at Diablo Canyon will collide with each other and the pool walls during the postulated Hosgri seismic event.
Motion at 3.
-They conclude, based on the foregoing, that the license amendment sought should be denied.,Id. : see also, Motion at 12.
While literally true to the extent that an environmental impact state-ment has not been prepared, the first assertion above leads Intervenors to the erroneous legal conclusion that the Staff has failed to comply with the National Environmental Policy Act (NEPA).
This conclusion follows, Intervenors tell us, simply because the Staff's Environmental Assessment relles on a generic environmental impact statement (GEIS) prepared some years ago and is flawed because there have been subsequent changes in the law and in "possible alternatives" that were not considered and be-cause the assumptions underiving the GEIS are not applicable to Diablo l
- Canyon, Motion at 4.
With respect to changes in the law, Intervenors point to the passage of the Nuclear Waste Policy Act of 1982, 42 U.S.C.
I 10101, e_t, seq.
(!!WPA), as standing for the proposition that the Environmental Assess-ment is deficient in its discussion of alternatives, particularly with re-spect to consideration of the Federal Government's responsibility for
t o storage of spent fuel.
Id. at 4-5.
As evident from even the brief quote from the NWPA set forth in the Motion, however, the Federal Government has but a limited responsibility for providing spent fuel storage capacity "for civilian nuclear power reactors that cannot reasonably provide ade-r i
quate storage capacity at the sites of such reactors...." 42 U.S.C.
t i 10151(a)(3).
Intervenors fail to mention, moreover, that the NWPA also provides that:
the persons owning and operating civilian nuclear power reac-tors have the primary responsibility for providing interim storage of spent nuclear fuel from such reactors, by maximis-ing, to the extent', practical, the effective use of existing storage facilities at the site of each civilian nuclear reactor, and by adding new onsite storage capacity in a timely manner where practical.
42 U.S.C. I 10151(a)(1).
Consistent with these provisions of the NWPA, PG&E has proposed to expand its onsite storage espability.
PG&E's pro-posal, in the context of the alternative of storage at a Federal facility, is discussed in the Staff's Environmental Assessment.
See, e.g., Environ-mental Assessment at 3.
The extent to which it may not be either rea-1 l
sonable or practical for the licensee to add new onsite storage capacity as proposed by the license amendment request so as to warrant the interces-I sion of the Federal Government to provide storage capacity for spent fuel t
generated at the Diablo Carvon facility and the adequacy of the discus-l sfon of the Federal storage alternative are simply questions of fact U that are not addressed by the Intervenors in their Motion. But in any event, the mere passage of the NWPA does not itself give rise to the need to i
l prepare an environmental impact statement (as opposed to an Environmen-I l
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Of course, the extent to which such " facts" are open to litigation in this proceeding is controlled by the scope of the contentions admit-ted by the Licensing Board, a matter discussed below.
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' tal Assessment) in circumstances, such as prevail here, in which there are no significant environmental impacts, see, Environmental Assessment at 12, (and Intervenors, in their Motion point to none) which would oth-orwise compel the preparation of a statement.
Neither NEPA nor the Commission's implementing regulations requires otherwise. b It is also significant to note that the environmental contentions re-maining. In this proceeding, Mothers for Peace Contention 1 and Sierra Club Contention I(B)7, concern only the adequacy of the consideration of I
alternatives in the Environmental Assessment, as required by 10 C.F.R.
I 51.30 and do not challenge the determinations made regarding the sig-l nificance of the environmental impacts considered. O See, Attachment 1 at 1, 2.
Resolution of those contentions, therefore, even assuming that l
Intervenors were to prevail, would not directly bear upon the issue of the significance of the impacts of the proposed action in terms of deter-i
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mining whether they are "significant" so as to require the preparation of i
an environmental impact statement; the only question would be whether the discussion of alternatives satisfied the requirements of 10 C.F.R.
i l
l 51.30 Thus, in the context of the Motion, the only import of the ade-j quacy of the GEIS would be in terms of its contribution to the adequacy 3/
As pointed out by the Intervenors, the Ninth Circuit's decision in this matter addresses environmental matters only in dicta, Motion at 6; the Court did not address, as part of its holding, the question of whether an environmental assessment, rather than an environmen-tal impact statement was adequate in the circumstances.
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Sierra Club Contentions II(A)(7)-(9) and II(B) (to the extent that it l
duplicates matters raised by Contention II(A)(7)-(9)),
are not
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i viewed as raising independent environmental issues in that they are I
wholly dependent on the eventuality that the Sierra Club prevails on all other aspects of Contention II.
Thus, they are merely specula-i l
tive assertions of consequences resulting from occurrences which are j
themselves only speculative.
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of the consideration in the Environmental Assessment of alternatives to the proposed action.
This is most obviously a question of fact.
Like-wise, the adequacy of the site-specific aspects of the Environmental Assessment presents questions of fact.
As to both of these matters, the Motion presents no facts but states solely the Intervenors' fpse dixit con-clusion that, as a matter of law, an environmental impact statement is 4
called for. Moreover, since Intervenors' assertions in connection with the foregoing are outside the scope of any admitted contention, it would ap-pear elemental that none of the assertions presented are " material" to a matter in controversy and thus cannot form the basis for summary dispo-
'sition of any issue before this Licensing Board. Said otherwise, Interve-i nors' first assertion, that an environmental impact statement was not prepared with respect to the proposed amendment, is not in and of itself a fact material to any matter which must be resolved by the Licensing s
j Boerd, irrespective of whether it is correct.
t i
Intervenors' second and third assertions concern compliance with the provisions of NUREG-0800, the Standard Review Plan (SRP).
Motion at 3, 7-12.
Once again, these assertions posit " facts" which are predicated upon interpretations of the SRP and the Staff's evaluation of the license 4
l amendment request not supported by any person competent to put them forth. Irrespective of whether Intervenors are correct in their interpreta-tion of what the SRP provides, a matter that the Staff does not concede, their conclusion that the license amendment must be denied if it falls to meet the guidance of the SRP is erroneous.
The SRP does not constitute a Commission regulation which is mandatory except by way of waiver or exemption.
Rather, it represents Staff guidance regarding acceptable approeches to a vast variety of technical issues.
A Ilcensee, or appli-j
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cant, may deviate from the provisions of the SRP provided that it can demonstrate that its resolution of a given matter otherwise satisfies the Commission's regulations.
See, Petition for Emergency and Remedial A_c-tion CLI-78-G, 7 NRC 400, 406-07 (1978).
In the context of the subject Motion, both the interpretation of the SRP guidance and the adequacy of the resolution of the issue involve questions of compliance with the Com-mission's regulations which raise questions of fact, independent of which the second and third assertions put forward by the Interevnors are not material.
The Intervenors have presented no facts concerning the ade-q.uacy of the Licensee's ' proposal in terms of compliance with the NRC's regulations but, once again, set forth only an ipse dixit conclusion that the license amendment must be denied because the action allegedly is not in accordance with the SRP. Accordingly, with respect to the second and third assertions, summary disposition is not appropriate.
In sum, the Interveners' Motion is devoid of any factual support l
which would warrant the granting of summary disposition sought with I
f respect to both the environmental claims and the health and safety claims. b Moreover, because, as shown above, the Motion is " insufficient to establish the absence of a genuina issue of material fact, the grant of summary disposition is foreclosed without regard to the content of the answer." Virginia Electric and Power Company (North Anna Nuclear Pow-er Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 n.3 (1980);
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Perry, supra at 754.
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A list of issues as to which it is contended that a genuine issue of
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material fact exists is attached as Attachment 2.
- In addition to the substantive deficiencies in the Motion which compel its denial, it is evident that the preparation of affidavits by the Staff to more substantively respond to the Motion would divert substantial Staff resources from preparation for the upcoming hearing.
For this reasons, as well, the Licensing Board, as a matter of its discretion, should deny the Motion. See,10 C.F.R. I 2.749(a); The Regents of the University of California (UCLA Research Reactor), LB P-82-93, 16 NRC 1391, 1395 (1982).
IV. CONCLUSION For the foregoing heasons, the Motion for Summary Disposition filed by Sierra Club / Mothers for Peace should be denied.
Respectfully subnitted, f
l l
Lawrence J. Chandler Special Litigation Counsel w
C Henr.. McOtzrren Counse for NRC Staff Dated at Bethesda, Maryland this 15th day of January,1987
4 ATTACHMENT 1 Sierra Club / Mothers for Peace Contentions I.
Mothers for Peace:
L 1.
The Applicant has not adequately considered alternatives to the proposed reracking of the spent fuel pools.
In 4
particular, because of the increased danger posed by the i
close proximity of the Hosgri fault, alternatives should be considered. Some alternatives include:
a.
The contracting out or trans-shipment of spent fuel for storage at a government owned spent fuel facility; b.
Derating the facility or reducing the plant output and thereby reducing the generation of spent fuel.
c.
Closing or shutting down the facilities.
II.
The Sierra Club, Santa Lucia Chapter:
4 I(A). It is the contention of the Sierra Club, Santa Lucia Chapter (Sierra Club), that the report submitted to the r
Nuclear Regulatory Commission (NRC) entitled Reracking of Spent Fuel Pools Disblo Canyon Units 1 and 2 and other communications between Pacific Gas and Electric Company (PGaE) and the NRC which are available to the public on the same subject (the Reports) fail to contain certain relevant data necessary for independent verifica-tion of the claims made in the Reports regarding consis-tency of the proposed reracking with the protection of i
the public health and safety, and the environment.
]
In particular, the Reports fail to contain data regarding:
3) the expected velocity and displacement of the spent i
fuel pools (pools) as a function of time in three dimensions during the postulated Hosgri earthquake (PHE);
4) the expected maximum velocity and displacement of the racks obtained from the computer modelling of rack behavior during the PHE; I(B)
It is the contention of the Sierra Club that the Reports fall to include consideration of certain relevant condi-tions, phenomens and alternatives necessary for indepen-dent verification of claims made in the Reports regarding consistency of the proposed reracking with public health and safety, and the environment, and with federal law.
~ In particular, the Reports fail to consider:
2) the resonant behavior of the spent fuel assemblies in the racks in response to the PIIE and the conse-quences of such behavior; 7) alternative on-site storage facilities including:
(1) construction of new or additional storage facili-ties and/or; (11) acquisition of modular or mobile spent nuclear fuel storage equipment, including spent nucle-ar fuel storage casks; 8) the use of anchors, braces, or other structural members to prevent rack motion and subsequent damage ddring the PIIE; 9) the use of "boraflex" neutron absorbing material for all spent fuel racks.
II.
It is the contention of the Sierra Club that the proposed reracking is inconsistent with the protection of the pub-lic health and safety, and the environment, for reasons which include the following:
(A) during the PHE, collisions between the racks and the pool walls are expected to occur resulting in:
1) impact forces on the racks significantly larger than those estimated in the reports; 2) impact forces on the racks significantly larger than those expected to damage the racks; 3) significant permanent deformation and other damage to the racks and pool walls; 4) reduction of the spacings between fuel assemblies; 5) increase in the nuclear criticality coefficient k(eff) above 0.95; 6) release of large quantitles of heat and radiation; 7) radioactive contamination of the nuclear power plant and its employees above the levels per-mitted by federal regulations;
3-8) radioactive contamination of the environment in the vicinity of the nuclear power plant above the levels permitted by federal regulations; and 9) radioactive contamination of humans and other living things in the vicinity of the nuclear power plant above the levels permitted by fed-eral regulations.
(D) during the PPE, collisions between groups of racks with each other and/or with the pool walls are ex-pected to occur with results similar to those de-scribed in II(A) above.
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ATTACHMENT 2 Materials Facts As To Which It is Contended That There Exists Genuine Issues To Be Heard II Y!hether it is acceptable, in accordance with the Commission's regulations, to permit movement (and, perhaps, contact) of the proposed high density storage rack (s) during postulated earthquakes.
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With respect to Intervenors' first assertion, namely, that an environ-mental impact statement is required, there is no admitted contention
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to which tids assertion relates, hence, there can be no genuine issue of material fact requiring resolution in this proceeding.
DOL KE R P 05NPC ITNITED STATES OF AMERICA
'87 JAN 15 P4 :29 NUCLEAR REGULATORY COMMISSION BEFORE THE ATO!t1IC SAFETY AND LICENSING BOAR 3Fr2 u
'-4 ESCHUw; 4.! ? an, I
BRANUb j
In the Matter of
)
i
)
PACIFIC GAS AND ELECTRIC
)
Docket Nos. 50-275 OLA COMPANY
)
50-323 OLA
)
(Diablo Canyon Nuclear Power Plant
)
(Spent Fuel Pool)
Units 1 and 2)
)
l CERTIFICATE OF SERVICE
$l I hereby certify that cot es of "NRC STAFF ANSWER IN OPPOSITION TO SIERRA CLUB / MOTHERS FOR PEACE NOTION FOR
SUMMARY
DISPOSI-TION" in the above-captioned proceeding have been served on the follow-ing by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's inter-t nal mail system, or as indicated by a double asterisk by use of hand-delivery, this 15th day of January,1987:
B. Paul Cotter, Jr., Chairman Bruce Norton, Esq.
Administrative Judge e/o P. A. Crane, Jr., Esq.
Atomic Safety and Licensing Board Panel Pacific Gas and Electric Co.
i U.S. Nuclear Regulatory Commission P.O. Box 7442
)
Washington, D.C.
20555**
San Francisco, CA 94120 Glenn O. Bright, Esq.
Nancy Culver Administrative Judge 192 Luneta Street i
Atomic Safety and Licensing Board Panet San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission Washington, D.C.
20555**
Mrs. Jacquelin Wheeler Dr. Jerry liarbour 2455 Leona Street Administrative Judge San Luis Obispo, CA 93401 Atomic Safety and Licensing Board Panel 3j' U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555**
Philip A. Crane, Jr., Esq.
i (77 Beale Street, 31st Floor) 4 1
Richard E. Blankenburg P.O. Box 7442 Co-publisher San Francisco, CA 94120 Wayne A. Soroyan, News Reporter South County Publishing Company i
P.O. Box 460 i
Arroyo Grande, CA 93420 i
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' ' Docketing and Service Section Mr. Lee M. Gustafson Office of the Secretary Pacific Gas and Electric Co.
U.S. Nuclear Regulatory Commission Suite 1100 Washington, D.C.
20555*
1726 M Street, N.W.
Washington, D.C.
20036-4502 Atomic Safety and Licensing Dr. Richard Ferguson Board Panel Vice-Chairman U.S. Iluclear Regulatory Commission Sierra Club Washington, D.C.
20555*
Rocky Canyon Star Route Creston, CA 93432 Atorric Safety and Licensing Appeal Board Panel Laurie McDermott, Co-ordinator U.S. Nuclear Regulatory Commission C.O.D.E.S.
Washington. D.C.
20555*
731 Pacific Street Suite #42 Tianaging Editor San Luis Obispo, CA 93401 San Luis Obispo County,
Telegram-Tribune Dian M. Grueneich, Esq.
1321 Johnson Avenue Edwin F. Lowry P.O. Box 112 Grueneich & Lowry San Luis Obispo, CA 93400 345 Franklin Street i
San Francisco, CA 94102 Pacific Gas and Electric Company Lawrence J. Chandler Special Litigation Counsel j
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