ML20212R696
| ML20212R696 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 01/14/1987 |
| From: | Locke R PACIFIC GAS & ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20212R698 | List: |
| References | |
| CON-#187-2325 OLA, NUDOCS 8702030049 | |
| Download: ML20212R696 (12) | |
Text
,
2,3 2-5 D OU'E.I ED u.hr u g7 jpl 23 A9 02 1
UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION Uf f N, l '
3 BEFORE THE ATOMIC SAFETY AND LICENSING TOARD'u 4
~.
5
)
6 In the Matter of
)
)
7 Pacific Gas and Electric
)
Docket Nos.: 50-275 OLA Company
)
50-323 OLA 8
)
(Diablo Canyon Nuclear Power
)
9 Plant, Units 1 and 2)
)
~
)
10 11 12 ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY IN OPPOSITION TO MOTION FOR
SUMMARY
DISPOSITION 13 14 15 I
16 INTRODUCTION 17 On December 15, 1986 the Mothers For Peace and the 18 Sierra Club, intervenors in this proceeding, filed a Motion 19 To Allow Filing of Summary Disposition Motion and For 20 Reinstatement of Original Schedule with the Appeal Board, y 21 In a Memorandum and Order dated December 19, 1986 22 (unpublished), the Appeal Board referred the matter to this 23 Board for appropriate action.
On January 2, 1987 this Board 24
///
25
_lf Attached thereto was a Motior for Summary Disposition 26 which is the subject of this Answer.
1 8702030049 870114 PDR ADOCK 05000275
( SC 3 G
PDR j
o tt 1
issued an Order directing Pacific Gas and Electric Company 2
("PGandE") and the NRC Staff to file responses to the Motion 3
for Summary Disposition (Motion) on or before January 15,
~
4 1987.
PGandE's response to the Motion follows.
Attached 5
hereto in support of this Answer is the Affidavit or,
6 Krishna P. Singh, dated January 13, 1987.
7 II g
8 ARGUMENT 9
A.
Legal Standard 10 Pursuant to the provisions of 10 C.F.R 2.749 any 11 party may seek a summary decision as to all or any part of,,,,
12 the matters involved in a proceeding.
A party seeking a
,~
13 summary judgment has the burden of showing not only' the 14 absence of a genuine issue as to any material fact but al'so 15 that they are otherwise entitled to a judgment in.thei'r 16 favor.
Moreover, the evidence must be construed in a Tigit) 9, 17 most favorable to the party against whom the Motion is ' +
18 directed.
In the Matter of Cleveland Electric Illuminatin[g 19 Company, et al. (Perry Nuclear Power Plant, Units 1 and 2)\\'
l l
20 ALAB-443, 6 NRC 741, 752-754 (1977);
In the Matter of 21 Carolina Power and Light, et al. (Shearon Harris Nuclear 22 Plant, Units 1 and 2), 19 NRC 432, 435-437 (1984).
Any
- l 23 affidavits that are submitted in support of the motion must l
24 set forth facts that would be admissible in evidence and 25 reflect that the affiant is competent to testify.
- Perry, 26 supra, at 755.
See also, United States v. Dibble, 429 F.2d
u A
1 598 (9th Cir. 1970).
In this context, a material fact is 2
one that may affect the outcome of the litigation.
Mutual M
3 Fund Investors Inc. v.
Putnam Management C_o.,
553 F.2d 620, 4
624 (9th Cir. 1977).
5 The use of summary disposition is to avoid 6
unnecessary hearings on contentions for which a party has s
7 failed to establish the existence of a genuine issue of 8
material fact.
Houston Lighting and Power Co. (Allan Creek 9
Nuclear Generating Station Unit 1), ALAB-590, 11 NRC 542, 10 550-551 (1980).
See also, In the Matter of Wisconsin 11 Electric Power Company (Point Beach Nuclear Plant, Units 1 12 and 2), ALAB-739, 18 NRC 335, 337"(1983); In the Matter of 13 Washington Public Power Supply System (WPPSS Nuclear Project 14 No. 1), ALAB-771, 19 NRC 1182' (1984); In the Matter of 15 Washington Public Power Supply System (WPPSS Nuclear Project 16 No. 3 ),
19 NRC 1011, 1015-1016 (1984).
With this legal 17 framework in mind we now turn to Intervenors' Motion.
l 18 B.
Intervenors' Motion Pursuant To 10 C.F.R. 2.749 Is Defective Because It 19 Raises Issues Not Admitted As Conten-tions.
20 21 Intervenors advance two independent bases which in 22 their opinion should dispose of the pending license 23 amendment for reracking the Diablo Canyon spent fuel pools.
24 The first deals with the NRC's failure to prepare an 25 Environmental Impact Statement
("EIS"),
allegedly in 26 violation of the National Environmental Policy Act of 1969, I
l O
1 (NEPA) for the proposed reracking.
The second asserts that 2
the reracking application fails to meet NRC acceptance 3
criteria for spent fuel storage at civilian nuclear power 4
stations i.e., criteria contained in the NRC's_" Standard 5
Review Plan for the Review of Safety Analysis Reports for 6
Nuclear Power Plants," NUREG 0800.
(Motion At 2).
- However, 7
as Intervenors candidly acknowledge (id. at 2) these matters 8
are not the subject of any contention which has been 9
admitted in this proceeding. 2_/
Under these circumstances, 10 the Intervenors' Motion is not properly before this Board.
I 11 Allen Creek, supra, at 550-551; Point Beach, supra, at 337.
12 C.
Intervenors Have Failed To Satisfy Their Burden Of Proof To Prevail On A Motion 13 For Summary Disposition.
14 As will be discussed in further detail, 15 Intervenors' Motion is also defective in that it is not 16 accompanied by any affidavit (s) by individuals competent to 17 testify as to the matters set forth in the Motion.
10 18 C.F.R. 2.749(b).
Rather the Motion consists solely of legal 19 argument by Intervenors' attorney on technical and factual 20 issues which is insufficient as a matter of law.
- Finally, 21 there are genuine issues of material fact which exist as to 22 the questions raised which preclude the grant of summary 23 disposition.
24
///
25 2/
The contentions set for hearing on February 2, 1987 26 were contained in this Board's Order of June 27, 1986.
1 e
D 1
1.
The NEPA Issue 2
Intervenors contend that the NRC has violated the 3
requirements of NEPA (42 U.S.C. 4321 et. seq.) in failing to 4
prepare an EIS instead of an Environmental Assessment ("EA")
5 as was done in this case.
See 42 U.S.C. S 4332(2)(c).
They 6
contend that the EA was defective as a matter of law for 7
relying on a 1979 Generic Environmental Impact Statement on 8'
the Handling and Storage of Spent Nuclear Fuel ("GEIS")
9 which had been rendered obsolete by subsequent events.
10 Again the analysis advanced by Intervenors is based upon the 11 conclusions of their attorney who makes no attempt to show 12 any qualification to render opinions on the factual and' 13 technical matters which were covered in any NEPA review.
14 The NRC is required by NEPA to perform an 15 environmental assessment, based upon which it determines 16 whether a full environmental impact statement is needed.
40 17 C.F.R. 9 1501.4(b) & (c).
If the NRC determines that the 18 Proposed action will not significantly affect the 19 environment, no EIS is necessary.
40 C.F.R. S 1501.4(e).
20 Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983).
In 21 the present case, pursuant to the provisions of 10 C.F.R. 22 Part 51, the NRC performed a thorough environmental 23 analysis, which relied on the 1979 GEIS in concluding that 24 the environmental effects of the proposed reracking were 25 negligible.
The NRC's conclusion that no EIS was required 26 to rerack the spent fuel pool is essentially the same I
+
1 conclusion challenged in Township o_f Lower Alloways Creek v.
2 Public Service Electric & Gas Company, 687 F.2d 732 (3d Cir.
3 1982).
That decision upheld the NRC's finding that 4
reracking of the spent fuel pool did not "significantly"
~'
5 affect the environment, within the meaning of NEPA.
See 6
also, Metropolitan Edison Co. et al. v. PANE, 460 U.S. 766, 7
772-773 (1983).
8 Intervenors' assertions that the 1979 GEIS is no 9
longer valid lack merit.
They contend that the 1982 passage 10 of the National Waste Policy Act ("NWPA") automatically 11 renders the 1979 GEIS invalid.
(Motion, pp. 4-5.)
- However, 12 their view of that statutory scheme is exceedingly myopic.
13 The NWPA declares that utilities have "the primary 14 responsibility for providing interim storage of spent 15 nuclear fuel by maximizing, to the extent practical, 16 the effective use of existing storage facilities.
42 17 U.S.C. S 10151(a)(1).
The NWPA also provides for research 18 and development aimed specifically at permitting the generic l
19 approval of spent fuel storage at reactors "without, to the 20 maximum extent practicable, the need for additional i
i 21 site-specific approvals by the Commission."
42 U.S.C.
22 9 10198.
Nowhere does the NWPA direct that an EIS be 23 prepared for any proposed expansion of a spent fuel pool.
24 Nor does the NWPA render immaterial the 1979 GEIS.
Rather
(
25 it sets forth a Congressional policy of maximizing existing 1
26
///
O 1
storage space and treating generically the issue of expanded 2
Spent fuel storage.
3 The NRC has concluded in its EA, which was based 4
upon an extensive technical analysis, that the reracking 5
Plan presents no significant hazards (seismic or otherwise).
6 Consequently, it follows that there can b'e no greater 7
environmental risk either.
8 Indeed, the EA criticized by Intervenors reflects 9
a careful consideration of alternatives, including the 10 alternative of shutting down Diablo Canyon once existing 11 capacity is exhausted.
Environmental Assessment at 4-5.
12 Intervenors have presented no evidence by competent and 13 knowledgeable affiants to suggest that the NRC's conclusions 14 were in error.
The mere ipse dixit conclusions of 15 Intervenors' attorney do not change the facts let alone give 16 rise to summary disposition.
17 2.
The NRC Acceptance Criteria Issue 18 The Intervenors allege that the criteria used by
=
l 19 PGandE for its rack design and utilized by the NRC Staff in 20 i.ts review and evaluation of the rerack application do not 21 meet the applicable criteria of the Standard Review Plan -
22 NUREG 0800.
In particular, they state that these criteria 23 preclude rack-to-rack and rack to pool wall collisions.
I 24 (Motion at 7-10.)
They also contend that no acceptance 25 criteria have been developed to set limits on rack-to-rack 26 collisions (id. at 9) and conclude that "[b]ecause the racks I
o 1
are expected to collide with each other and the pool walls, 2
they violate the OT acceptance criteria and the Standard 3
Review Plan, NUREG-0800."
(id at 12.)
4 This position suffers from two major infirmities.
5 First, as with the NEPA issue, the " facts" E support of 6
Intervenors' position are set forth by their attorney in a 7
pleading, not in an affidavit under oath which reflects the 8
competency of the affiant to testify to the matters set 9
forth.
Furthermore, they admit that the Standard Review 10 Plan (SRP), NUREG-0800, and the OT Position for Review and 11 Acceptance of Spent Fuel Storage and Handling Applications 12
("OT Position Paper"), were prepared by the NRC Staff for 13 the guidance of the office of Nuclear Reactor 14 Regulation staff responsible for the review of applications 15 to construct and operate nuclear power plants.
These 16 documents are made available to the public as part of the 17 Commission's policy to inform the nuclear industry and the 18 general public of regulatory procedures and policies.
19 Standard review plans are not substitutes for regulatory 20 guides or the Commission's regulations and compliance with 21 them h not required." 3f (emphasis added).
M the Matter 22 of Metropolitan Edison (Three Mile Island Nuclear Station, 23 Unit No. 1), ALAB-698, 16 NRC 1290, 1298-99 (1982), rev'd M 24 25 3/
Quoted from the note on the bottom of page 1 of NUREG-0800, Section 3.8.4, "Other Seismic Category I 26 Structures," Rev.
1, July 1981.
1 e
1 part on other grounds, CLI-83-22, 18 NRC 299 (1983); Gulf 2
States Utilities Company (River Bend Station, Units 1 and 3
2), ALAB-444, 6 NRC 760, 772-773 (1977).
Neither do they 4
constitute the only method of meeting applicable regulatory 5
requirements.
In the Matter of Carolina Powe and Light et.
6 a_1_., (Shearon Harris Nuclear Plant), LBP-86-ll, 23 NRC 294 7
(1986).
8 Although PGandE's reracking application does, in 9
fact, conform with the guidance documents, it is clear that
~-
10 alternatives to guidance documents such as the Standard 11 Review Plan may be presented to and accepted on a 12 case-by-case basis by the Staff during NRC application 13 reviews.
- However, we need not reach this question.
14 PGandE's seismic analysis of its proposed reracking complied 15 with the requirements of NUREG-0800 (Singh affidavit at 16 Para. 4).
17 Furthermore, PGandE believes the Intervenors (or 18 at least their attorney) have grossly misinterpreted the 19 acceptance criteria related to spent fuel rack interactions 20 as stated in Appendix D,
" Technical Position on Spent Fuel 21 Pool Racks," Section (6), " Structural Acceptance Criteria,"
22 of SRP Section 3.8.4.
For reference, Section (6) is quoted i
23 below in its entirety.
24 (6)
Structural Acceptance Criteria 25 The structural acceptance criteria are those given in the Table 1.
26 When buckling loads are considered l i
1 0
1 in the design, the structural ac-ceptance criteria shall be limited 2
by the requirements of Appendix XVII to Reference 3.1.
3 For impact loading, the ductility 4
ratios utilized to absorb kinetic energy in the tensile, fle.gural, 5
compressive, and shearing modes should be quantified.
When consid-6 ering the effects of seismic ' loads, factors of safety against gross 7
sliding and overturning of racks and rack modules under all probable 8
service conditions shall be in ac-cordance with SRP Section 3.8.5, 9
subsection II.5.
This position on factors of safety against sliding 10 and tilting need not be met provid-ed any one of the following condi-11 tions is met:
12 (a) it can be shown by detailed nonlinear dynamic analyses 13 that the amplitudes of sliding motion are minimal, and impact 14 between adjacent rack modules or between a rack module and 15 the pool walls is prevented provided that the factors of 16 safety against tilting are within the values permitted by 17 SRP Section 3.8.5, subsection II.5.
18 (b) it can be shown that any slid-19 ing and tilting motion will be contained within suitable geo-20 metric constraints such as thermal clearances, and that 21 any impact due to the clear-ances is incorporated.
The fuel pool structure should be 23 designed for the increased loads due to the new and/or expanded high 24 density racks.
The fuel pool liner leak tight integrity should be 25 maintained or the functional capa-bility of the fuel pool should be 26 demonstrated.
1 D
+
C 0
1 The structural acceptance criteria for the Diablo 2
Canyon high density racks are the criteria identified in 3
Table 1 (load combinations and service limits) of SRP 4
Section 3.8.4.
The racks were qualified to these criteria 5
(Singh affidavit at paras. 4 and 5) and fBund to be 6
acceptable by the NRC Staff and its consultant, Franklin 7
Research Center.
8 The acceptance criteria in subsection (6) provide 9
for spent fuel racks that are structurally sound and will 10 maintain safe configurations through all postulated 11 environmental and abnormal loading conditions such as 12 earthquakes.
Safe configuration embodies the concerns that 13 the spent fuel remains subcritical, is cooled, and that the 14 spent fuel assemblies maintain their integrity.
15 No exceptions to well-established acceptance 16 criteria were taken for the design of the racks, nor to our 17 knowledge were any taken during the NRC Staff's review and 18 acceptance of the spent fuel racks.
Thus, the racks are 19 designed and constructed using the approved acceptance 20 criteria to maintain the spent fuel assemblies in a safe 21 configuration for normal and abnormal loads, including 22 impacts between racks and between the racks and the fuel 23 pool walls.
24 Finally the assertion that PGandE and its 25 consultants have interpreted the OT standard and its 26 exceptions to prohibit any rack collisions (Motion at 10-11)
a 1
is simply wrong.
Mr. Singh expressly refutes such a 2
conclusion.
(Singh affidavit at paras. 6 and 7).
3 III 4
CONCLUSION 5
For the foregoing reasons, PGandE ontends that 6
the Intervenors have failed to show any basis for grant of 7
summary disposition in their favor.
Accordingly, the motion 8
should be denied.
9 10 Respectfully submitted, 11 HOWARD V. GOLUB PHILIP A. CRANE, JR.
12 RICHARD F. LOCKE Pacific Gas and Electric Company 13 P.O. Box 7442 San Francisco, California 94120 14 (415) 781-4211 15 BRUCE NORTON c/o P. A. Crane, Jr.
16 P.O. Box 7442 San Francisco, California 94120 17 (415) 781-4211 18 Attorneys for Pacific Gas and Electric Company 19 20 21 By Richard F M 6cke 22 23 DATED:
January 14, 1987 24 25
(
l 26
. L
.. _ _ _ _.