ML20235F295
| ML20235F295 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/24/1987 |
| From: | Preston M GRUENEICH, D.M. (FORMERLY GRUENEICH & LOWRY), Sierra Club |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#387-4452 86-523-03-LA, 86-523-3-LA, OLA, NUDOCS 8709290026 | |
| Download: ML20235F295 (13) | |
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j7 SgP 25 A9d5-UNITED STATES OF AMERICA IA NUCLEAR REGULATORY COMMISSION 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
-OLA PACIFIC GAS & ELECTRIC COMPANY
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(ASLBP No. 86-523-03-LA)
(Diablo Canyon Nuclear Power Plant, Units 1 and 2).
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i INTERVENOR'S REQUEST FOR STAY Dian M.
Gruenaich' Marcia Preston LAW OFFICE OF DIAN M.
GRUENEICH 380 Hayes Street, Suite 4 San Francisco, CA 94102 Telephone: (415) 861-6930 Attorneys for Intervenor Sierra Club B709290026 B70924 PDR ADOCK 05000275 1
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s I.
INTRODUCTION This is a Request for Stay filed with the Atomic Safety and Licensing Appeal Board
(" Appeal Board") pursuant to 10 CFR S 2.788.
The Sierra Club seeks a stay of the Atomic Safety and Licensing Board's
(" Licensing Board") September 11, 1987 initial decision authorizing the Director of Nuclear Reactor Regulation to issue operating license amendments ("OLAs") to Pacific Gas &
Electric ("PG&E").
The OLAs would permit reracking of the spent fuel storage pools at the Diablo Canyon Nuclear Power Plant Units i
1 and 2, thereby increasing the number of fuel assembly storage locations from 270 to 1324 in each unit.
Sierra Club is filing herewith a Notice of Appeal of that decision.1 Sierra Club requests this stay to prevent irreparable harm and to preserve the status quo until administrative and judicial review of all matters underlying issuance of the license amend-i ments is complete.
These OLAs were previously issued by the NRC on May 30, 1986. The Sierra Club requested a stay and a hearing, and filed several contentions.2 Upon the NRC's refusal to stay the OLAs, interveners Sierra Club and Mothers for Peace 3 appealed to the U.S.
Ninth Circuit Court of Appeals and were granted a stay and 2 Sierra Club's Notice of Appeal and this Request for Stay also cover the Licensing Board's September 2, 1987 Order in this proceeding.
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2 The NRC later issued an Environmental Assessment, dated May j
21, 1986, and Finding of No Significant Impact, dated May 30, 1986.
j 3 Mothers for Peace have since withdrawn from the proceeding.
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an order requiring the NRC to hold public hearings prior to the issuance of the OLAs.
San Luis Obispo Mothers for Peace v.
- NRC, 799 F.2d 1268 (9th Cir. 1986).
When the proceeding was remanded to the NRC, the Licensing Board scheduled hearings for March, 1967 and admitted four of Sierra Club's earlier-filed contentions.
The hearings were postponed, at the request of NRC staff, when a review of the seismic analysis, on which the initial issuance of the OLAs was
- based, raised questions which were relevant and material to Sierra Club's contention regarding rack-to-rack interactions.
Board Notification ("BN") 87-01, January 29, 1987.
The hearings were eventually held in June, 1987.
Testimony was presented regarding the failure of the OLAs to meet federal statutory and regulatory requirements and the resulting threat to the public health and safety, as described in Sierra Club's contentions.4 All four of Sierra Club's admitted contentions were denied by the Licensing Board's September 11 initial decision.
On June 16, 1987, Sierra Club moved to admit a contention concerning the consequences of a loss of coolant accident for plants with spent fuel pools utilizing a high density configura-tion such as that proposed by PG&E for Diablo Canyon.
The motion also requested the dismissal the NRC's prior finding of no 4See the accompanying Notice of Appeal for details on the appeal.
Sierra Club is appealing from the September 2,
1987 order in its entirety and from the September 11, 1987 initial 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.
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l significant impact and the preparation of an environmental impact statement
("EIS")
regarding the reracking.5 The Licensing Board's September 2,
1987 Order
(" Order") denied Sierra Club's motion to admit the contention and denied the request for an EIS.
II.
LEGAL ARGUMENT The factors to be considered in deciding whether to grant a stay request are: (1) petitioner's liklihood of success on the merits; (2) possibility of irreparable injury to party requesting stay; (3) possibility of harm to other parties; and (4) the public interest.
10 CFR S 2.788(e).
An analysis of these factors indicates that the requested stay should be granted.
A.
Sierra Club is Likely to Prevail on the Merits The Licensing Board's authorization of the Diablo Canyon OLAs is illegal in several respects.
1.
National Environmental Policy Act The National Environmental Policy Act, 42 U.S.C.
S 4321 et seg. ("NEPA"), requires that prior to making a licensing decision regarding a proposed action that may significantly affect the environment, a federal agency must prepare an EIS regarding the l
I possible environmental effects of that action.
42 U.S.C.
S j
S A basis for this motion was a January 1987 report entitled "Beyond Design Basis Accidents in Spent Fuel PoJ1s (Generic Issue 82)",
issued by the Brookhaven Laboratory ("BNL Report), which had only recently been made available to Sierra Club. Tr.
142-174.
At the time Sierra Club made its original motion, the i
report was in draft form.
The final report has since been l
issued; "For purposes of this [ case], the final report does not l
differ significantly from the draft report."
Order, at n.1.
All references to BNL Report herein are to the draft, attached as j
f exhibit 1 to Sierra Club's motion, below.
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4332( 2 )(c ).
In addition to the EIS requirement, NEPA S 102( 2 )(c )
requires agencies to " study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conf]icts concerning alternative uses of available resources."
42 U.S.C. S 4332(2)(e).
The Licensing Board's decisions in this proceeding violate NEPA's mondates.
The OLA's are likely to result in significant adverso impacts to the environment and yet no EIS has been prepared.
Instead, the NRC has prepared only an Environmental Assessment ("EA") which summarily concludes that the reracking will not have any significant environmental impacts.
The EA l
l relies on a seven year old, generic EIS on spent fuel storage and ignores almost entirely the site-specific considerations of the Diablo Canyon reracking i.e.,
the free-standing nature and higher density of the replacement racks and the impact of the seismic forces active near Diablo Canyon.
Nor does the EA adequately consider alternatives.
- 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 adequate 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.
Having reviewed the NRC's actions under NEPA, the Ninth Circuit, in its decision in this caso last year, stated "that any doubt concerning the need to supplement the NEPA documento be 1
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resolved in favor of additional documentation."6 San Luis Obispo Mothers for Peace v.
NRC, 799 F.2d 1268, 1271 (9th Cir. 1986).
The NRC has provided no additional documentation.
- Instead, in the face of further evidence that the OLA's are likely to result in significant environmental impacts,7 the Licensing Board chose to rely on the earlier EA.
Order, at 14-15.
The Licensing Board reasons that because the BNL Report considered a so-called "beyond-design-basis accident," the Report cannot, by itself, trigger the requirement that an EIS be prepared.e NEPA does relieve an agency of the duty to consider " remote and specula-tive" events; determination of what constitutes such an event is governed by a rule of reason.
Natural Resources Defense Council, Inc.
v.
Morton, 458 F.2d 827 (D.C.Cir. 1972).
The agency may not rely on the label "beyond-design-basis" as a stand-in for developing a factual record to determine whether a given event is 6 The Court did not decide the NEPA claim because its decision was based on the agency's failure to provide a public hearing.
7 See BN 87-01, which states that a review of the seismic analysis, performed after the Ninth Circuit stay issuance of the OLAs, raised questions regarding the significance of rack-to-rack impacts.
Sierra Club had raised this issue in Contention !(B) and the NRC staff considered the inadequacies of the original analysis significant enough to warrant delaying the proceeding while further data was collected Yet no additional NEPA documents were prepared.
See also BNL Report, which provided previously unavailable evidence of significant impacts on the environment from the proposed reracking.
eThe Licensing Board conceded that an EIS would be required if a " sufficient nexus" were shown between the Report and the situation at Diablo Canyon.
Sierra Club inade an adequate showing of such a nexus.
See, infra, pp. 6 to 7, and accompanying Notice i
of Appeal, pp. 7 to 9.
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remote and speculative.'
The NRC's initial failure to prepare an EIS and its inade-quate consideration of alternatives violated NEPA; in light of B.N.
87-01 and the BNL Report, the agency's shortcomings in these regards are even more glaring.
2.
Public Health and Safety The Atomic Energy Act, 42 U.S.C.
S 2239 et seq.,
requires the NRC to assure that nuclear plants will operate without endangering the public health and safety.
The Nuclear Waste Policy Act, 42 U.S.C.
SS 10101, 10152(1), prohibits the NRC from authorizing expansion of on-site spent fuel facilities unless such action is consistent with the protection of 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 conten-tion regarding the BNL Report and the consequences of a loss of coolaat accident at Diablo Canyon.
Sierra Club established a nexus between the BNL Report and the proposed OLAs 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 9 The Licensing Board's reasoning appears to be that "beyond-design-basis accidents" are exempt because they have a low proba-bility of occuring. Order at 13.
However, an event is not remote and speculative merely because there is a low probability that it will occur.
. Sierra Club v.
Sigler, 695 F.2d 957, 971-974 (5th Cir. 1983); 40 CFR S 12502.22 (1986).
There is no basis under NEPA for simply excluding from the reach of NEPA, ipso _ facto, all events which the agency places under a given label.
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4 for pressurized water reactors (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.
In not admitting this contention, the Licensing Board refused to subject the OLAs to the scrutiny required by federal law to ensure that the public health and safety is protected.
B.
Sierra Club will Suffer Irreparable Injury in the Absence of a Stay PGGE's attorney has informed the Sierra Club that the company plans to begin the modifications necessary to the reracking as soon as possible, and that physical changes would begin no later than October.1 If the spent fuel reracking is allowed to take place at Diablo Canyon, the Sierra Club uill be irreparably injured in several significant respects.
Sierra
- Club, its members, and the public will be endangered by the reracking because the facility will not be designed consistently with the Commission's mandate to protect the health and safety and to consider the environmental impacts of and reasonable alternatives to the reracking before approving the OLAs.
The consequences of a major accident involving spent fuel pools at a nuclear power plant can be catastrophic.
The BNL Report concludes that the risk potential of loss of coolant in l
1 This information was provided by Mr.
Bruce Norton, attorney for PGGE, during a September 15, 1987 telephone call with Ms. Marcia Preston, attorney for Sierra Club.
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spent fuel pools with high density racks is. equivalent to present risk estimates for core melt accidents, and that, in-some respects, such accidents could be much worse than a reactor core melt accident.
BNL Report at S-6.
The, reracking therefore increases substantially the risks.to the. property and - personal safety of the surrounding population, including members of the Sierra C396, many of whom live within.the evacuation zone of the plant.
The proposed OLAs would increase the number of storage location spaces for spent fuel elements from 270 to 1324 in each unit by the use of high density. racks; the maximum planned inventory of radioactive spent fuel stored on site would increase i
by approximately fifteen times.
PG&E Exhibit 2,
below, at 1-3 and 1-4.
By reducing ' the margin of safety and increasing the potential threat posed by new accidents, the proposed reracking of the spent fuel storage system represents a significant risk of irreparable injury.
Also, when an agency has taken an action in violation of NEPA such as the failure to assess environmental impacts and to consider reasonable alternatives there is a presumption that injunctive relief should be granted against the continuation of that action until the 8gency complies: with the Act.
Realty income Trust v.
Eckerd, 564 F.2d 447, 456 (D.C.Cir. 1977).
Such relief is designed not only to prevent harm to the environment but also to ensure that the agency decision-makers take an L
objective view of the project, unaffected by large commitments of resources to the project which could bias a decision.
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t injunction halts further investment in the project until the impacts and alternatives are considered in a fair light.
Consequently, " courts will not hesitate to stop projects that are in the process of affectng the environment when the agency is in illegal ignorance of the consequences (of the proposed action],
as when it should have prepared an EIS but failed to do so."
Id.
at 456 (emphasis in original).
An injunction ensures that environmental concerns are considered not only before actual harm
' occurs but before the agency's proposed approval of a project acquires " irreversible momentum."
Id.
at 511. The substantial increase in the risk to public health and the environment necessitates the granting of an injunction.
C.
Other Parties will not Suffer Harm Sufficient to Justify Denying the Stay The granting of a stay will postpone the reracking only until review has been completed.
The inability of the federal government to remove spent fuel from Diablo Canyon has been known for many years, yet PG&E waited until October of 1985 to request the OLAs.
Moreover, the NRC's original illegal refusal to grant the required prior public hearings, and its later decision to postpone the hearings have resulted in further delays.
Since the other parties have themselves taken actions which have unfavor-ably affected the timing of this proceeding, they should not now be permitted to complain of any postponement necessary to fully vindicate the rights of Sierra Club, which has demonstrated that it is likely to succeed on the merits.
i Last year the Ninth Circuit granted a stay of the proposed 9
reracking despite claims by PG&E and the NRC that they would be irreparably harmed.
Given the substantial irreparable harms which would result to interveners if a stay is not granted, j
coupled with the fact that the NRC chose not to comply fully with NEPA by preparing only a minimal EA instead of the required EIS, any alleged harm to other parties is insufficient to justify denying this stay request.11 D.
The Public Interest Favors a Stay The public interest is best protected when matters of this magnitude are handled cautiously and with full compliance with all pertinant safety and environmental laws.
Full consideration of the environmental impacts and alternatives of the project would provide the affected public with the information thev deserve regarding the reracking.
Trout Unlimited v.
Morton, 509 F.2d 1276, 1287 (9th Cir.
1974).
To allow the reracking to proceed without first requiring such an analysis threatens the public health and safety and deprives the public of the full disclosure of the project's consequences and alternatives required by federal law.
III.
CONCLUSION For the reasons stated above, Sierra Club hereby requests this Appeal Board to stay the effectiveness of the September 2, 1987 order and the September 11, 1987 initial decision of the 11 Sierra Club is willing to consider a shortened briefing schedule on the underlying appeal in order to expedite consideration of the merits, provided the requested stay is granted.
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o Licensing Board until Sierra Club has had an opportunity to seek judicial review and to participate in any further administrative proceedings regarding the reracking.
Dated:
September 24, 1987 Respectfully Submitted, LAW OFFICE OF DIAN M.
GRUENEICH
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. y1 I bhb }h,b //l 'YY By Marcia Preston i
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PROOF OF SERVICE I,
Deborah M.
- Hunt, declare that on September 24,
- 1987, I
deposited copies of the attached Intervenor's Request For Stay in the United States mail with postage thereon fully prepaid and addressed to the parties listed below:
Dr. Jerry Harbour Mr. Leland M.
Gustafson, Administrative Judge Federal 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.
Silver Lawrence J.
Chandlar vsq y-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 Wa.9hington, 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.
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I declare under penalty of perjury that the foregoing is true and correct.
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- hand delivered September 24.
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