ML20235M186

Forwards Complete Footnote 5 as Appearing on Pages 8 & 9 of 870710 Answer to Sierra Club Motion to Admit Contention Re Generic Issue 82 & to Direct Preparation of Eis. Due to Quirk in Programming,Not All of Footnote 5 Printed

ML20235M186
Person / Time
Site:	Diablo Canyon
Issue date:	07/13/1987
From:	Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Cotter B, Harbour J Atomic Safety and Licensing Board Panel
References
CON-#387-4029, REF-GTECI-082, REF-GTECI-NI, TASK-082, TASK-82, TASK-OR OLA, NUDOCS 8707170097
Download: ML20235M186 (3)

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'87 JLL 15 P2 :03 July 13,1987 h,bi ' ,

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B. Paul Cotter, Jr. , Chairman Glenn O. Bright Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission .

Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour  ;

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555.,

in the Matter of l PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) ,

Docket Nos. 50-275 OLA and 50-323 OLA (Spent Fuel Pool)

Dear Administrative Judges:

Due to a quirk in the programming of the Staff's IBM 5520 system, not all of footnote 5 in Staff's ... " Answer to Slcrra Club's Motion To Admit A (

Contention Regarding Generic issue 82 And To Direct Preparation Of an EIS", dated July 10, 1987, was printed on pages 8-9. Unfortunately, this ,

was not discovered until after Staff's Answer had been filed with the Board j and parties. ]

Enclosed is a complete copy of footnote 5 as it is supposed to appear on j pages 8-9 of Staff's Answer. The Staff regrets any inconvenience this may have caused the Board and parties.

Sincerel y, 4c .

B nJamin H. Vogler ounsel for NRC Staff

Enclosure:

Pa,ges 8-9 of Staff's Answer cc w/ encl.: Service List I

5

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i The fifth factor , whether the admission of a late-filed contention would broaden the issues or delay the proceeding, it appears evident that such would be the case. Notwithstanding the Sierra Club's protestations, Motion at 4-7, there simply is no issue admitted in this proceeding which is related to the new contention proposed.

Litigation of such wholly new l issue would thus broaden the issues and would cause delay as a result of 1

the likely discovery requests and additional hearing time that would be l required. That the contention belatedly being proposed may be viewed by the Sierra Club to be significant is not a matter properly considered in the context of this factor, but rather in connection with the third fac-tor. Braldwood, supra, 23 NRC at 248. But, as discussed above, the Sierra Club's demonstration on the third factor is deficient, in sum, the Sierra Club has failed to demonstrate that a balancing of as the five factors set forth in 10 C.F.R. 5 2.714(a)(1) warrants the admission of its late-filed contention. 5,/

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) for a construction permit extension. See, Comanche Peak, slip op.

at 19-25. By contrast, the issue the Sierra Club here seeks to raise is highly technical in nature.

-5/ Ancillary to its -request for the admission of a new contention, the Sierra Club urges that the Board direct that an EIS be prepared to consider the matters addressed in the draft BNL report. Motion at 1. Irrespective of its citation to numerous regulations of the Council on Environmental Quality, the Sierra Club has failed to es-tablish that the Staff- has failed to adhere to the Commission's regu-lations implementing the National Environmental Policy Act, found in 10 C.F.R. Part 51, which govern the Staff's review. As a general matter, an EIS is not required unless it is found that the environ-mental impacts attributable to a particular licensing action may be significant. See, 10 C.F.R. 6 51.32. Based on its environmental (FOOTNOTE CONTINUED ON NEXT PAGE) 1

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s B. The Proposed Contention Falls To Present A Litigable issue i In addition to its failure to satisfy the requirements for a late-filed l 1

contention, the specific contention proposed, which, in the overall context I of the Motion, is environmental in nature, b alls f to present a litigable i

issue. It is beyond question that the matters raised in the draft BNL j report are generic in nature. U Accordingly, it is Incumbent on the l

Sierra Club to establish the nexus of that draft report to the Diablo Can- I 1

yon facility and the . proposed amendment application. Cleveland Electric 1 liluminating Company, et al. , (Perry Nuclear Power Plant, Units 1 and 2), LD P-82-15, .15 N RC 555, 558-559 (1982). It has failed to do so, resting , instead, merely on its simplistic characterization of generic conclusions of the draft report.

)

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) review to date, the Staff has determined that the environmental im-pacts associated with the Licensee' proposed reracking are not sig-nificant. See, Staff Ex. 2. That the previously issued Environmental Assessment (EA), Staff Ex. 2, did not consider the draft BNL report should come as no particular surprise in that the draft report was not published until almost nine months after the EA was issued. The Staff nonetheless intends to give due consideration to the draft report and will supplement its EA to the extent neces-sary to assure compliance with NEPA and the Commission's regula-tions before any license amendment is issued by the Staff in this proceeding. j 6/ S.

E .: "The proposed action significantly increases the consequences of loss of cooling accidents . . . ." Motion at 1. "The licensee and l NRC Staff have failed to consider alternatives . . . which might i j mitigate the hazards related to cladding fires." Motion at 5. See also argument on page 6 of Motion.

7/ As the Sierra Club acknowledges, "

. . . the problem of cladding j fires is not unique to Diablo Canyon . . . ." Motion at 6.

l l

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