ML20235F272
| ML20235F272 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/24/1987 |
| From: | Preston M GRUENEICH, D.M. (FORMERLY GRUENEICH & LOWRY), Sierra Club |
| To: | |
| References | |
| CON-#387-4453 86-523-03-LA, OLA, NUDOCS 8709290017 | |
| Download: ML20235F272 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.
i BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In,the Matter of:
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Docket Nos. 50-275-OLA
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and 50-323-OLA PACIFIC GAS & ELECTRIC COMPANY
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(ASLBP No. 86-523-03-LA)
(Diablo Canyon Nuclear Power
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Plant, Units 1 and'2)
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NOTICE OF APPEAL OF' LICENSING BOARD'S SEPTEMP,ER 2, 1987 ORDER AND SEPTEMBER 11, 1987 INITIAL DECISION i
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Dian M.
Grueneich i
Marcia Preston l
LAW OFFICE OF DIAN M.
GRUENEICH 380 Hayes Street, Suite 4 San Francisco, CA 94102 Telephone: (415) 861-6930 j
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Attorneys for Intervenor Sierra Club 8709290017 B70924 PDR ADOCK 05000275 g
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I.
- INTRODUCTION This Notice of Appeal is filed pursuant to 10 CFR S 2.714a.
The Sierra Club appeals from the Atomic Safety and Licensing Board's
(" Licensing Board") September 2,
1987 order and its September 11, 1987 initial decision in the above-referenced proceeding.1 This proceeding stems from a request by PG&E for operating license amendments ("OLAs") authorizing the reracking of the Diablo Canyon Units 1 and 2 spent fuel pools in a high density configuration that would increase the number of fuel assembly storage locations from 270 to 1324 for each unit.
II.
DECISIONS WHICH ARE BEING APPEALED The Board's September 11, 1987 initial decision denied Sierra Club's contentions that the OLAs violate federal statutory and regulatory requirements and threaten the public health and safety and the environment in four major respects: (1) relevant data is missing concerning the velocity and displacement of the spent fuel pools and the spent fuel racks in the pooln during an earthquake; (2) the impact forces an earthquake would create on the spent fuel pools and the racks they contain are significantly underestimated; (3) collisions between the racks, groups of racks, and spent fuel walls during an earthquake would cause the release of large quantities of radiation which would contaminate 1 These two rulings are properly appealed together in the time period provided for appealing the initial decision.
See Pacific Gas & Electric Co., (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAD-873, Memorandum and Order, September 18, 1987.
Sierra Club is filing simultaneously a Request for Stay.
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the plant, the environment, and all living things in the vicin-ity; and (4) alternatives to the high density reracking were not adequately considered.
Sierra Club appeals from this decision insofar as it denies Sierra Club's Contention I( B )( 7 ),
which deals with the NRC's failure to consider adequately alternatives to the reracking, as required by federal law.
On June 16, 1987, Sierra Club moved to admit a contention based on a January 1987 report entitled "Beyond Design Basis Accidents in Spent Fuel Pools (Generic Issue 82)," issued by the Brookhaven National Laboratory ("BNL Report" ). 2 The BNL Report investigated the likelihood and consequences of a loss of coolant in the spent fuel pool; one of the specific accident scenarios analyzed involved a seismic event.
Two of the authors specifi-cally recommend against the storage of spent fuel in the manner proposed in the OLAs.
Sierra Club's proposed contention, based on the BNL Report, states that:
The proposed action significantly increases the 2 Sierra Club had not previously received the BNL Rep rt but instead had been sent Board Notification 87-05
(" Board Notifica-tion"), which misleadingly stated that the BNL Report did not relate "to currently ongoing licensing efforts for spent fuel pool expansion amendment requests by utilities including hear-ings."
Upon receiving a requested copy of the Report itself, Sierra Club determined that the Report was, in fact, directly related to this case.
Sierra Club immediately sought to raise this issue orally at the start of the hearings on its other contentions.
TR.
142-174.
The Licensing Board < directed Sierra Club to submit a written motion, which it did on June 29, 1987.
The motion was based on the draft Report.
The final version of the Report has been issued; "For purposes of this [ case, it] does l
not differ significantly from the draft report."
September 2,
1987 order, at 2, n.l.
All references to the BNL Report herein are to the draft, attached as exhibit 1 to Sierra Club's motion, I
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below.
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s consequences of loss of cooling accidents in that a loss of water in - the spent fuel pools could lead to spontaneous ignition of zircaloy cladding of the fuel elements in the high density configuration with significant releases of radiation.
The motion also requested that the Board dismiss the prior finding-of no significant impact and order preparation of an environmental impact statement ("EIS") for the reracking.
The Licensing Board's September 2,
1987 Order
(" Order")
denied - Sierra. Club's motion to admit the late-filed contention.
The Order also stated that no additional environmental documenta-tion would be required, thereby denying Sierra Club's request for an EIS.
Sierra Club appeals from the September 2, 1987 decision in its entirety.
III.
BASIS OF APPEAL The Licensing Board's determinations in this proceeding.are incorrect as a matter of law in several respects.
The authoriza-tion of the OLAs, in the absence of an EIS, violates the National Environmental-Policy Act, 42 U.S.C.
S 4321 et seq. ("NEPA").
The Licensing Board's failure to adrait Sierra Club's contention regarding the consequences of a loss of coolant accident violates the NRC's own regulations in that the contention identifies, with reasonable specificity, a significant safety issue for the reracking at Diablo Canyon and should therefore have been admitted.
10 CFR S 2.714(b) (1986).
In approving the proposed
.OLA's without analyzing the new information contained in the BNL Report regarding the high risk imposed by a loss of coolant in t
the spent fuel pools, the Licensing Board's decision violates the 3
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NRC's duty to protect the public health and safety.
This duty arises from both the Atomic Energy Act, 42 U.S.C.
S 2239 et seq.,
and the Nuclear Waste Policy Act, 42 U.S.C.
SS 10101, 10152(1).
A.
National Environmental Policy Act NEPA requires all federal agencies to prepare an EIS analyzing environmental impacts before approving any major federal action that may significantly affect the environment.
42 U.S.C. S 4332(2)(c).
In addition to the EIS requirement, NEPA S 102(2)(e) requires agencies to " study,
- develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alterna-tive uses of available resources."
42 U.S.C.
S 4332( 2 )( e ).
Federal agencies are also under a continuing duty to gather and evaluate new information relevant to the environmental impact of their actions.
See 40 CFR S 1502.9(c); Warm Springs Dam Task Force v.
Gribble, 621 F.2d 1017, 1023 (9th Cir. 1980).
The Licensing Board's decisions in this proceeding do not comply with NEPA's mandates.
The OLA's are likely to result in significant adverse impacts to the environment and yet no EIS has been prepared. Environmental concerns are to be considered not only before actual harm occurs but before the agency's proposed approval of a project acquires irreversible momentum.
Lathan v.
Volpe, 455 F.2d 1111, 1121 (9th Cir, 1971).
Instead of address-ing such concerns by way of an EIS, the NRC has prepared an Environmental Assessment ("EA") which relies on a seven year old, generic EIS to support its summary conclusion that the Diablo 4
Canyon reracking will not have any significant environmental impacts.
This determination is made in the absence of crucial, site-specific information, including consideration of the free-standing nature and higher density of the replacement racks and the impact of the seismic forces active near Diablo Canyon The EA also fails to adequately consider alternatives.3 Instead, it simply asserts that other alternatives including trans-shipment to another reactor, federal off-site storage, and "no project" are not feasible, without providing any support-ing data or analysis to justify this conclusion.
The EA ignored on-site storage alternatives, including a dry cask storage system or alternatives such as those recommended in the BNL Report.
Sierra Club's June 16, 1987 motion requesting preparation of an EIS was based in part upon the BNL Report.
This Report concludes that the risk potential of loss of coolant in spent fuel pools with high density racks is equivalent to present risk estimates for core melt accidents, and that, in some recpects, such accidents could be much worse than a reactor core melt accident.
BNL Report at S-6.
Yet even in the face of this new evidence of significant environmental impacts, the Licensing Board chose to approve the OLAs without requiring any additional environmental analysis.
The Licensing Board rejected Sierra Club's request, stating 3 This weakness is raised both by Sierra Club's request for an EIS and by its Contention I(B)(7) regarding failure to consider alternatives.
The NRC staff recognized this Contention "as a separate environmental issue."
Licensing Board's June 27, 1986 Memorandum and Order (Admitting Contentions).
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4 that its determination that there was not a sufficient showing of a nexus between the BNL Report and the Diablo Canyon situation and citing the recently issued case of Vermont Yankee Nuclear Power Corp., 26 NRC (ALAB-869, issued July 21, 1987).
The Licensing Board apparently read that case to mean that Sierra Club's request for an EIS must fail because it is based on a "beyond-design-basis" accident scenario.
Order at 13-14.
Sierra Club made a sufficient showing of a nexus, as described infra, at 6-9.
In addition, the Licensing Board misapplies the Vermont Yankee decision.
In that case, the Appeals Board merely ruled that the specific accident scenario at issue there was too remote and speculative too trigger the requirement that an EIS be prepared.
The opinion reconfirms the agency's long-standing policy of considering the need to prepare an EIS on a case-by-case basis.
Vermont Yankee, at 23, 26, citing Pacific Gas and Electric Co.,
(Diablo Canyon Nuclear Power
- Plant, Unit 1 and 2),
24 NRC 1,
12, rev'd on other grounds sub. nom., San Luis Obispo Mothers for Peace v.
NRC, 799 F.2d 1268 (9th Cir. 1986).
Therefore, Vermont Yankee does not dictate the result in the instant case, where Sierra Club has shown specific factors linking the BNL Report to the proposed OLAs that make the likelihood of a Zircaloy cladding fire at the Diablo Canyon plant I
more than a remote and speculative" event.
Furthermore, even if the Licensing Board were correct in its reading of the Vermont Yankee case, it would be impermissible as a matter of NEPA law simply to exclude all accidents labelled 6
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1 "beyond-design-basis" from the EIS requirement on the grounds that such accidents are, by definition, " remote and speculative" events.
NEPA does relieve agencies of the duty to consider " remote and speculative" events; however, an event is not remote and speculative merely because there is a low probability that it will occur.
All " reasonably foreseeable" significant adverse impacts must be analyzed, including " impacts which have catastro-phic consequences, even if their probability of occurrence is low."
40 CPR S 1502.22; Sierra Club v.
Sigler, 695 F.2d 957, 971-974 (5th Cir. 1983)(agency's duty to analyze hypothesis of a massive oil spill not excused by mere fact such a spill was unlikely).
The agency cannot rely on a policy statement as a stand-in for the development of a factual record on the question of how remote and speculative" an event is.
There is no basis d
under NEPA for ruling out consideration of events which may affect the need to prepare an EIS merely by labelling them "beyond-dur.,1gr.-basis."
i B.
Public Health and Safety As explained above, the Atomic Energy Act and the Nuclear Waste Policy Act require that the agency's decision regarding the Diablo Canyon spent fuel f a :ilities be consistent with the public health and safety.
The BNL Report's implications for safety at Diablo Canyon establish that the public health and safety may be unreasonably imperiled if the proposed OLAs are authorized.
Sierra Club sought to establish this threat through its 7
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contention ;regarding.the consequences of a loss of coolant i
accident.at-Diablo Canyon.
The Licensing Board failed to admit this contention, stating that a sufficient nexus was not estab-lished between the BNL Report and the OLAs.
Sierra Club has established the requisite nexus by pointing.
to:
(1) the fact that exactly the same type of fuel storage racks are at issue; (2) the increased risk identified in the BNL Report for~ pressurized water. reactors ("PWR")(which Diablo Canyon Units 1 and 2 are); (3) the increased seismic hazard risk evident for any plant located near a major fault zone, and 4) the recommendation by two of the BNL Report's authors that spent fuel not be stored in.the manner proposed in the OLAs.
Furthermore, several of the reasons offered by the L1 censing Board for its decision on the nexus question are inadequate.
The Order criticizes Sierra Club for not offering data comparing the PWR studied in the BNL Report with the Diablo Canyon plant.
Order at 10-11.
Tho Order also finds fault with the contention because it " assumes a total loss of coolant in the Diablo Canyon spent fuel pools without specifying any accident scenario that would cause that loss." order at 10.
These criticisms are premature attempts to reach the underlying merits of the proposed contention.
The data referred to by the Licensing Board ds the type of information a party may want to seek in discovery or to introduce at a hearing on the merits; however, the content 1on put forth by Sierra Club was specific enough to be admitted.
Mississippi Power and Light Co.,
6 AEC 423 (ALAB-130, 1973).
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The Order also points to what it calls " caveats" contained in the BNL Report.
Order at 8.
Yet, with full knowledge of all that the Report contained, two of the authors still recommend that spent fuel not be stored in high density racks until it has been stored for two or more years in the old style, low-density racks.
BNL Report, Appendix B.
Sierra Club's contention regarding the consequences of a loss of coolant accident raises a significant health and safety issue.
By not admitting this contention, the Licensing Board refused to subject the OLAs to the type of scruti ny required under federal law to protect the public.
C.
Sierra Club's Contention Regarding A Loss of Coolant Accident Meets the Requirements of a Late-Filed Contention Sierra Club meets the requirements for filing a late-filed contention, as set forth in 10 C.F.R.
S 2. 714 ( a ) ( 1 ). This section requires the balancing of considerations, including good cause for failure to file on time, other means to protect the inter-venor's interest, assistance in developing a sound record, and whether the proceeding will be broadened or delayed. Id.
Sierra Club had good cause for filing when it did in that it had not received a copy of the BNL Report at the time it was released. On March 27, 1987, the NRC issued Board Notification 87-05 regarding the BNL Report.
This Board Notification con-tained the misleading statement that "the draft report does not pertain directly to currently ongoing licensing efforts for spent fuel pool expansion amendment requests by utilities including 9
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I-o.,
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"- ' hearings." Sierra Club Exhibit 1,
below.
Neither the Sierra Club,-its counsel, nor several other parties on the service list received copies of the Report until a party on the service list, Nancy. Culver, requested a copy after reading about the Report in a local newspaper.
See Affidavits attached to Sierra Club's t-Motion, below.
Given that the notification denied the pertinence of the issue, the Sierra Club brought the matter before the Licensing Board in'a timely manner, within one week of. receiving
'the Report.
The Sierra Club has no means of protecting its interests at Diablo Canyon other than to raise ' the issue in the current proceedings. Further, the Sierra Club is making whole the public record on this issue. As the only remaining intervenor, the l
Sierra Club has raised substantive issues regarding the proposed l
reracking which would not otherwise have been made part of the public record.
The proceeding will not be substantially broadened by addressing the additional contention raised by the Sierra Club.
The Sierra Club has fulfilled its responsibilities under 10 C.F.R. S 2.714.
IV.
CONCLUSION This appeal is based on this notice of appeal and on the supporting brief which Sierra Club will file either within thirty days, or within the time provided in any new schedule which may be set if the accompanying Request for Stay is granted.
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Dated:
September 24, 1987 Respectfully Submitted, LAW OFFICE OF DIAN M.
GRUENEICH
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By
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Ma'rcia Preston~
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s GOLMETED USNPC PROOF OF SERVICE SeptN b E M, k N7, I,
Deborah M.
Hunt, declare that on I
deposited copies of the attached Notice of Appeal of Licensing Board's September 2,
1987 Order and Septembegghl,9 @Memt fully 7Qpitial Decision in the United States mail with po67 W
prepaid and addressed to the parties listed below:
. h Dr. Jerry Harbour Mr. Leland M. Gustafson, Administrative Judge Yederal Relations Manager
' Atomic Safety & Licensing Board Pacific Gas & Electric Co.
U.S.
Nuclear Regulatory Comm.
1726 "M" Street, NW, Suite 1100 Washington, D.C.
20555 Washington, D.C.
20036-4502 Glenn O.
Bright Richard F.
Locke, Esq.*
Administrative Judge Pacific Gas & Electric Co.
Atomic Safety & Licensing Board 77 Beale Street U.S.
Nuclear Regulatory Comm.
San Francisco, CA 94105 Washington, D.C.
20555 Mr. Gordon A.
Silver Benjamin Vogler, Esq.
Ms. Sandra A.
-Laurcnce-J. Chandle" r e q. g-660 Granite Creek Road Office of the General Counsel Santa Cruz, CA 95065 U.S.
Nuclear Regulatory Comm.
Washington, D.C.
20555 Ms. Laurie.McDermott, Coordinator Atomic Safety & Licensing C.O.D.E.S.
Board Panel 731 Pacific Street, Suite 42 U.S.
Nuclear Regulatory Comm.
San Luis Obispo, CA 93401 Washington, D.C.
20555 Mrs. Jacquelyn Wheeler B.
Paul Cotter, Jr.,
Chairman 2455 Leona Street Administrative Judge San Luis Obispo, CA 93400 Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Comm.
Dr.
R.B.
Ferguson Washington, D.C.
20555 Sierra Club / Santa Lucia Chapter Rocky Canyon Star Route Atomic Safety & Licensing Creston, CA 93432 Appeal Panel (5 copies)
U.S.
Nuclear Regulatory Comm.
Ms. Nancy Culver Washington, D.C.
20555 192 Luneta Street San Luis Obispo, CA 93401 Bruce Norton, Esq.*
Pacific Gas & Electric Company Managing Editor 77 Beale Street S.L.O.
Telegram-Tribune San Francisco, CA 94105 P.O.
Box 112 San Luis Obispo, CA 93406 R. Blankenburg/W. Soroyan South County Publishing Company P.O.
Box 460 Arroyo Grande, CA 93420 I am, and was at the time of the service of the attached paper, over the age of 18 and not a party to the proceeding.
I declare under penalty of perjury that the foregoing is true and correct.
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