ML20210T261

Response to NRC Interrogatories on Contention 1 Re Util Responsibility to Demonstrate Safety of High Density Reracking.Intervenors Not Responsible for Solving Waste Storage Problem.W/Certificate of Svc.Related Correspondence

ML20210T261
Person / Time
Site:	Diablo Canyon
Issue date:	10/06/1986
From:	Umhofer B SAN LUIS OBISPO MOTHERS FOR PEACE
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#486-0977, CON-#486-977 OLA, NUDOCS 8610080353
Download: ML20210T261 (16)

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4 00CXETE0 4 USNPC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

% DCT -6 P3 :13 BEFORE THE ATOMIC SAFETY AND LICENSING BOARDyc e .

00Cnh c X N l mm In the Matter of ) Docket Nos. 50-275 o d

) 50-323 OL 4 PACIFIC GAS AND ELECTRIC COMPANY )

2 (Diablo Canyon Nuclear Power )

Plant Units 1 and 2) -

INTERVENOR MOTHERS FOR PEACE'S  :

RESPONSE TO INTERROGATORIES FROM NUCLEAR REGULATORY COMMISSION STAFF This document is.in response to the interrogatories submitted by the Nuclear Regulatory Comission to the San Luis Obispo Mothers For Peace 1- in preparation for the up-coming safety hearings on re-racking of spent fuel. The response time has been unreasonably short, especially in light a

of the fact that Mothers For Peace does not have the resources to pursue Contentions 2 and 3 and withdraws Contentions 2 and 3. We submit the following regarding Contention 1.

It has long been the position of the Mothers For Peace that the l

l issue of public safety overrides any other consideration in this case.

t The burden of proof remains with Pacific Gas and Electric Company to demon-strate the safety of high density reracking. And, contrary to the implica-tions of these interrogatories, it is not the responsibility of Intervenors to propose solutions to the waste storage problems of Diablo Canyon nuclear

) power plant. Rather, our present and past actions serve the essential

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. function of raising unanswered questions, and insisting that neither Pacific Gas and Electric Company nor the Nuclear Regulatory Commission may reverse the lawful precedence o'f safety over operator convenience.

Some of the safety problems of re-racking are a result of errors in siting this plant: "Diablo Canyon is located in an active seismic zone and the original Diablo Canyon licenses did not analyze the effect of an earthquake on this new rack design." (NinthCircuitCourtof Appeals, September 11, 1986, San Luis Obispo Mothers for Peace and the Sierra Club vs. United States Nuclear Regulatory Commission, and the United States of America; and Pacific Gas and Electric Co.) '

It'is not appropriate to ask a citizens' group to propose solutions to an industry-wide dilemna. Indeed, in 1973 when the public first became aware of the Hosgri Fault, Intervenors did make a proposal that would have avoided problems arising from the earthquake hazard. They filed a petition requesting the N.R.C. to halt construction while the ramifications of the Hosgri Fault on plant design could be assessed.

It was denied. By 1978, even the N.R.C.'s Advisory Committee on Reactor Safeguards agreed that "It is evident ... that the design basis and criteria utilized in the seismic re-evaluation of the Diablo Canyon l

Station for the postulated Hosgri event are in certain cases less conservative than those that would be used for an original design."

The results of siting errors by Pacific Gas and Electric Company, pointed out in the infancy of construction by Intervenors but ignored, cannot now be handed back to Intervenors for solutions of convenience

. to the operator. If there is no safe way to store the waste on-site, no safe way to transport the waste off-site, and no implementation of plans for a federal repository, then logic dictates the adoption of alternative c) offered by Mothers For Peace in their contentions: close down the plant.

Further information and documentation of Intervenor's position will be offered at the actual safety hearings. In addition, and at the very least, Mothers For Peace support the recent request of the N.R.C. by Congressman Panetta that an in-depth, scientific analysis be conducted by a body that is independent of the N.R.C. and P.G. and E. regarding the '

waste storage problems at Diablo Canyon nuclear power plant. (attached)

Such a study should be completed preliminary to any safety hearings and form the major bases for that hearing.

f Similarly, in the interests of avoiding further errors, no final decision regarding re-racking should be made until the Long Term Seismic Study has been completed.

Mothers For Peace remain committed to insuring that the safety issues of re-racking be considered fully before any amendment to the license of Diablo Canyon nuclear power plant is accepted. We insist upon similar standards from Pacific Gas and Electric Company, as well as the Nuclear Regulatory Commission.

We are unable to answer your questions on Contention 1 at this time l

because we do not yet have witnesses whom we plan to sponsor at a safety hearing. We will provide the information as it becomes available.

Respectfully submitted, N v-Betsy Umhofer for Mothers For Peace I

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t i l Honorable Nunzio J.' Palladino

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Chairman I ,

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! 1717 H- Street, N.W. ! i i' Washington, D.C. 20555

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Dear Mr. Chairman:

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I as writing to express my. serious concern about the implications of tiie proposed rerackin i

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nuclear power plant) and g of to spent fuel pools request that aatfull the and Diablo Canyon review independent i i of this matter be conducted as expeditiously'as possible.

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[  ! As you! know',, Pacifid: Gas and Electric' Company has proposed to address the problem of on-site storage of' nuclear waste at Diablo Canyon by lj increasing the capacity of the temporary spent. fuel storage pools at the facility. The utility has requested amendments to the operating license of the plant which involve the replacement of the current -

spent fuel racks, which are bolted to the floor of the pools, with free-standing racks! capable of holding fiveitimes the capacity of the original racks. The commissio'n: approved the amendments without a thorough technical review of the proposal and without holding prior hearings on the issue.

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, 'As you know, the Ninth Circuit Court of Appeals has recently issued a

' stay order prohibiting storage of spent fuel in the new racks until a

' safety hearing has been held to consider the issue. The court found

!that the proposed reracking would create the possibility of a new type i :of accident not previously studied by the NRC, because the new racks would be free-standing and could collide.during an earthquake. Clear-i 'ly, this matter must be resolved before the , utility should be allowed to proceed to address the problem of waste storage at the facility.

My concern is that the issues raised in this case must be the subject

of a full and unbiased review before the time of the safety hearing, in order for the Commission to make fair and balanced judgements on thererackingissuej i ,

I, understand that despite clear Congressional intent that doubtful or borderline cases should not be resolved with a finding of no signifi-cant hazards consideration,: the Commission made such a finding in approving the license amendments. Surely,,the unique circumstances involved at Diablo Canyon warrant the most thorough review of the reracking proposal possible. As you are well' aware, the plant itself was designed to withstand a " worst-case" earthquake measuring 7.5 on the Richter Scale. .That the proposal to increase the storage capacity of the waste storage ponds several times over would be given nothing more than a perfunctory review seems to me indefensible.

In fact, the Court has ruled that the commission violated its own

regulations in finding no significant hazards consideration with res-ipect to the Diablo Canyon amendments. I am, deeply concerned that the Commission's decision may be yet another example of an effort to conceal relevant safety information from the public. On every occasion that I have become involved in the controversy over Diablo Canyon, whether it

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! I was, because. of evidence of design flaws or tkhe failure to consider earthquakes.in emergency planning, I have urged the Commission to make every . effort to ensure that the: trust of the people is maintained. .

Unfortunately, it seems thait, the decision to grant this significant

' license amendment under the cloak of a no significant hazards consi-

doration represents ! business as. usual; for the Commision.

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i NN tha't the court has ordered. the public hearing the Commissio'n )

i should have, held as a mattelt of; course, an independent technical -

reviewJs mandated. I strongly? urge you ther'efore, to take thei j necessary steps.to ensure-that such al review'is conducted. I believe 3

that this action will help' restore public' con'fidence in the Commis-sion's' commitment to public safety. i

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l  ! Th'ank y'ou for your time and consideration. . ir look forward to hearing i from you intthe near future. '- .,' i

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i i Sincerely,I

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- ,ORPaICmON FILED l UNITED STATES COURT OF APPEALS ,

1 FOR THE NINTH CIRCUIT CATHY A.CATTBISDN. Cts?K U.S.QOUNTOFAPPEALS  ;

i 2 I SAN LUIS OBISPO MOTHERS FOR PEACE and ) No. 86-7297 3 THE SIERRA CLUB,. )

1. Petitioners, )

5 ,,, , f 8 UNITED STATES NUCLEAR REGULATORY )

COMMISSION, and the UNITED STATES OF ) OPINION 7 AMERICA, )

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8 Respondents, ) -

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10 PACIFIC GAS AND ELECTRIC COMFANY, )

lI Respondent-Intervenor. )

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12 Argued and Submitted 13 August 13, 1986 -- San Francisco, California Petition to Review a Decision of the United States Nuclear Regulatory Commission 15 .

Before: MERRILL, NELSON and WIGGINS, Circuit Judges.

17 0 NELSON, Circuit Judge:

San Luis Obispo Mothers for Peace and the Sierra Club 20 (petitioners) challenge an order of the Nuclear Regulatory 21 Commission (NRC) granting operating license amendments for Units 1 22 and 2 of the Diablo Canyon Nuclear Power Plant (Diablo Canyon).

23 The license amendments permit Pacific Gas & Electric Company 24 (PG&E) to expand the capacity of the on-site radioactive spent 25 26

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/ fuel storage pools at.,Diablo Canyon. The NRC found that the

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license amendments involved "no significant hazards consideration" I and made them immediately effective without prior public hearings.

2 Because the NRC violated its own regulations in finding no 3 significant hazards consideration with respect to the Diablo 4 Canyon amendments, we reverse this finding and remand to the NRC 5 for the public hearings con'templated by the Atomic Energy Act.

6 BACKGROUND 7 Nuclear reactors are operated with fuel contained in rods 8 that are placed in the core of the reactor. As the reactor is 8 operated, radioactive byproducts gradually accumulate in the fuel 10 rods. Eventually, the rods must be removed from the reactor and 1I replaced. The exhausted fuel rods, known as " spent" fuel rods, 12 are placed in poo.s of water near the reactor. After a period of 13 storage near the reactor, the rods are removed for some other form:

I4 of permanent waste disposal. See generally Lower Alloways Creek 15 Township v. United States Nuclear Reculatory Commission _, 481 16 F.Supp. 443, 445 (D.N.J. 1979).

II Under PGr.E's original licenses for Diablo Canyon, spent 18 nuclear fuel. rods were to be stored on stationary racks secured to 18 the bottom of two pools filled with water, one pool for each of 20 the two units at the plant. Each pool contained racks with 270 l

21 spent fuel assembly spaces. PGt,E's amended license allows the 22 storage of the spent fuel rods in free-standing racks not anchored l

23 to the base of the pools that contain 1324 spent fuel assembly i

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./ spaces in each pool. The change in the configuration of the racks -

[ in the pools is referr de to as "reracking."

1 In October 1985, PGGE requested license amendments to permit i 2 raracking of the pools. The need for increased storage capacity 3 seems to have been caused by the realization that federal storage ,

4 facilities for spent nuclear fuel rods would not be available f 5 until at least 1998. Under the old configuration of the pools, 6l Diablo Canyon's storage capacity would be exhausted by 1990.

7 In January 1986, the NRC published a notice of these proposed 8 amendments to the Diablo Canyon licenses. This notice included a ,

8 proposed no significant hazards consideration determination.-

10 Petitioners timely intervened and requested a hearing. On May 30, 11 1986, prior.to any hearings and based on a staff finding of no 12 significant hazards consideration, the NRC approved the proposed 13 license amendments and made them immediately effective. PGsE 14 began reracking the pool for Unit 1 the next day.

15 . Petitioners then sought stays from both the NRC and this 16 court. On July 2', this court enjoined the reracking of Unit 2 and

17 permitted PGEE to proceed with the reracking on Unit 1 at its own 18 risk. The court further ordered that PG&E not use the pool for 18 the storage of radioactive nuclear waste pending further order of 20 the court.

l 21 On July 22, the NRC eodified its May 30 order in response to 22 petitioners' stay request. The NRC order now permits reracking of i

23 the spent fuel pools prior to the hearing petitioners have 24 requested, but prohibits PG&E from storing more spent fuel in the l

25 pools than authorized by the original licenses until the 26

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/ conclusion of the hearing. On August 5, 1986, petitioners amended j their petition for rev'iew to include the NRC's latest order.

1 ANALYSIS 2 Section 189a of the Atomic Energy Act, 42 U.S.C. $

j 3 2239(a)(1)(1982), sets forth the hearing framework for the 4 amendment of licenses for nuclear power plants. The Act provides 5 that "[i]n any proceeding , . . for the granting, suspending, 8 revoking, or amendina of any license . . ., the Commission shall 7 grant a hearing upon the request of any person whose interest may 8 be affected by the proceeding, and shall admit any such person as '

8 a party to such proceeding." M. (emphasis added). The hearing 10 shall be held after thirty days' notice and publication in the 11 Federal Register. The NRC "may dispense with such thirty days' 12 notice and publication . . . upon a determination by the 13 Commission that the amendment involves no significant hazards 14 consideration." M.

15 Prior to 1980, if the NRC staff found that a license 16 amendment presented no significant hazards consideration, the 17 staff issued the amendment without notice or an opportunity for a 18

prior hearing. 42 U.S.C. 5 2239(a)(1)(1962)(amended 1982). In 18 Shelly v. Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir.

20 1980), vacated to consider mootness, 459 U.S. 1194 (1983), the 21 District of Columbia Circuit held that the NRC could not make an 22 amendment immediately effective in this manner if there was an 23 outstanding request for a hearing. This decision prompted an 24 amendment to Section 189a, enacted in 1982, known as the "Sholly" 25 amendment. This amendment provides, in pertinent part, that:

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The Commissios may issue and make immediately effective any amendment to an operating i j f license, upon a determination by the Commission that such amendment involves no 1 significant hazards consideration, notwithstanding the pendency before the j 2 Commission of a request for a hearing from any Person. Such amendment may be issued and made 3 immediately effective in advance of the ding and completion of any required 4, hearing. In determining under this section whether such amendment involves no significant 5 hazards consideration, the Commission shall c nault with the State in which the facility 6 involved is located. In all other respects such amendment shall meet the requirements of 7 this chapter.

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,l 42 U.S.C. 5 2239(a)(2)(A)(1982). The amendment also provides that the NRC shall promulgate detailed regulations for making a no g

significant hazards consideration determination. 42 U.S.C. S g

12 2239(a)(2)(C)(1982).,

er t e MC's regulations, the MC may make a 1kense 13 amendment immediately effective only if the amendment does not:

14 (1) Involve a significant increase in the 15 probability or consequences of an accident Previously evaluated; or 16 l (2) Create the possibility of a new or l

17 i different kind of accident from any accident 18 j Previously evaluated; or (3) Involve a significant reduction in a 99 margin of safety.

20 10 C.F.R. S 50.92. Although the NRC did consider these amendments in accordance with the form of the regulations set forth above, its analysis of the second standard is contradictory and in direct contravention of Congressional intent in enacting the Sholly 25 26 l

The Conference Committee Report accompanying the Sholly amendment, which is entitled to great weight in analyzing 1 Congressional intent, see American Jewish Conoress v. Kreos, 574 -

2 F.2d 624, 629 n.36 (D.C. Cir.1978), expressly states that the 3 implementing regulations "should ensure that the NRC staff does 4 not resolve doubtful or borderline cases with a finding of no House Conference Report No.

5 significant hazards consideration."

6 97-884, at p.37, reprinted in 1982 U.S. Code Cong. & Ad. News 7 3607. The Conference Committee Report further states that the 8 standards "should not require the NRC staff to prejudge the merits Ld.. The 8 of the issues raised by a proposed license amendment."

10 regulations thus appropriately require a hearing before the 11 proposed license amendment becomes effective whenever the 12 amendment creates the cossibility of a new or different kind of 13 accident. Petitioners have identified such an accident and they 14 should have been granted a prior hearing.

15 The change from racks bolted to the floor of the the pools to l 18 f ree-standing racks creates the possibility that, in the event of 17 an earthquake, the racks will collide with the walls of the pools 18 or with each other, enhancing the risk of a nuclear reaction 18 occurring in the pools. Diablo Canyon is located in an active 20 seismic zone and the original Diablo Canyon licenses did not The j ,

21 analyze the effect of an earthquake on this new rack design.

l 22 license amendments thus would seem to create the possibility of a 23 new or different kind of accident.

24 The NRC does not deny that the specific kinds of accidents 25 petitioners identify -- racks colliding with each other and with 26 i

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the walls of the pools -- were not analyzed in connection with the!

original licenses.

The NRC also admits that petitioners' claims i f

At the same I are sufficiently serious to justify a later hearing.

I 2 time, however, the NRC seeks to support its finding of no 3 significant hazards consideration by a technical analysis of why petitioners' claims lack merit. See NRC Memorandum and Order 5 dated July 22, 1986, at 12 L15. The NRC attacks certain of the 6 assumptions underlying petitioners' contentions and concludes that the new racks "have been designed to meet the seismic force 8 requirements previously applied to the originally intended bolted racks." I_d,. d at 13. The NRC's arguments amount to an assertion 10 that, because the possibility of a nuclear reaction occurring in Il the pools in the event of an earthquake was analyzed in connectior 12 with the origina1' operating licenses, and because the NRC staff it 13 satisfied that the new racks will not increase the possitility of 14 a nuclear reaction occurring in the pools in the event of c.n 15 earthquake, no new or different kind of accident is implicated by 10 the amendments.

1 The very prncess by which the NRC attempts to rebut 18 petitioners' contentions constitutes a tacit admission that the 18 amendments do create the possibility of a new or different kind o 20 accident. The claims are at least serious enough to warrant a 21 later hearing. The NRC's own regulations require that a hearing 22 be held before the amendments are made effective when there is a These 23 possibility of a new or different kind of accident.

24 regulations are in accordance with the Congressional directive 25 that doubts be resolved in favor of a prior hearing and that the 26

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• e NRC staff not prejudge the merits of a proposed license amendment.

A prior hearing is requ' ired in this case.

i I Because we find the NRC's action to have been impermissible 2 under its own regulations, we need not reach petitioners' 3 additional arguments concerning the Atomic Energy Act, the Nuclear 4 Waste Policy Act, and the National Environmental Protection Act 5 (NEPA). With respect to petitioners' NEPA claims, however, we 6 note that the site specific environmental assessment was based on 7 a seven year old generic environmental assessment and that no 8 worst case analysis, 40 C.F.R. 5 1502.22, appears to have been 8 conducted. We strongly suggest that any doubt concerning the need 10 to supplement the NEPA documents be resolved in favor of 11 additional documentation.

12 CONCLUSION 13 The NRC failed to comply with its own regulations in denying 14 petitioners a hearing prior to making the Diablo Canyon raracking 15 license amendments effective. Accordingly, the existing stay of 18 those amendments is continued.

PGrE shall not deposit any spent 17 fuel rods.in the pool for Unit 1 and shall not rerack the pool for 18 Unit 2 until hearings have been held in compliance the the I8 requirements of the Atomic Energy Act.1/

20 REVERSED AND REMANDED.

21 WIGGINS, Circuit Judge, will file his views separately.

22 23 24 1/ PG&E may, of course, elect to return the racks to the l

original configuration in accordance with its existing operating 25 licenses and may then use the spent fuel pools prior to completion of the hearings.

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UNITED STATES OF AMERICA daAltus.cOML6 POND 6NQg NUCLEAR REGULATORY COMMISSION 00LKETE:

'fiNPC In the Matter of ) DockekNo.Sh-2

) 50-323

't "r PACIFIC GAS AND ELECTRIC COMPANY ) 0FFIU! a

) (Rere@Dhy(Sp5MFuel Pools)

(Diablo Canyon Nuclear Power )

Plant Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that on October 3,1986, copies of Intervenor Mothers For Peace's Responses to Interrogatories from Nuclear Regulatory Comission have been served on the following by deposit in the United States mail.

B. Paul Cotter, Jr. , Chainnan Lewis Shollenberger .

Administrative Judge Regional Counsel Atomic Safety and Licensing US Nuclear Regulatory Comission Board Panel Region V US Nuclear Regulatory Commission 1450 Maria Lane, Suite 210 4350 East West Highway 4th Floor Walnut Creek CA 94596 Bethesda, MD 20814 Atomic Safety and Licensing Glenn 0. Bright Board Panel Administrative Judge US Nuclear Regulatory Comission Atomic Safety and Licensing Washington DC 20555 Board Panel US Nuclear Regulatory Comission Mr. Lee M. Gustafson 4350 East West Highway 4th Floor Pacific Gas and Electric Company Bethesda MD 20814 1726 M Street NW Suite 1100 Washington DC 20036-4502 Dr. Jerry Harbour Administrative Judge Janice E. Kerr, Esq.

Atomic Safety and Licensing Public Utilities Comission Board Panel 5246 State Building US Nuclear Regulatory Commission 350 McAllister Street 4350 East West Highway 4th Floor San Francisco, CA 94102 Bethesda MD 20814 Nancy Culver Docketing and Service Branch 192 Luneta Street Office of the Secretary San Luis Obispo, CA 93401 US Nuclear Regulatory Comission Washington DC 20555 Atomic Safety and Licensing Appeal Board Panel Lawrence Chandler, Esq. US Nuclear Regulatory Commission Henry J. McGurren, Esq. Washington DC 20555 Office of Executive Legal Director US Nuclear Regulatory Commission Maryland National Bank Building Room 9604 7735 Old Georgetown Road Bethesda MD 20814

Diablo Canyon Service List -

l Dr. Richard Ferguson Vice-Chairman i Sierra club Rocky Canyon Star Route Creston CA 93432 Dian M. Grueneich Grueneich & Lowry 345 Franklin Street San Francisco, CA 94102 Jacquelyn Wheeler 2455 Leona Street San Luis Obispo, CA 93401 Laurie McDennott, Coordinator -

C.0.D.E.S.

731 Pacific Street Suite #42 San Luis Obispo CA 93401 Rita Mills San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue San Luis Obispo CA 93406 Richard E. Blankenburg Co-publisher South County Publishing Company P.O. Box 460 Arroyo Grande CA 93420 Bruce Norton c/o P.A. Crane Pacific Gas and Electric Company 77 Beale Street, 31st Floor San Francisco, CA 94106 hylg d4W Betsy Umb6fer for Mothers For Peace Dated October 3,1986 in San Luis Obispo, California