ML20235T357
| ML20235T357 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/08/1987 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Sierra Club |
| References | |
| CON-#487-4574 ALAB-877, LBP-87-25, OLA, NUDOCS 8710130058 | |
| Download: ML20235T357 (15) | |
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497V 00thE RO
.wM UNITED STATES OF AMERICA l NUCLEAR REGULATORY CCMMISSION
- ER 0:T - 8 M 1 3 9 ATOMIC SAFETY AND LICENSING APPEAL PANEL gpia s v. , r ,
Administrative Judges: 99CdNMf5ElhVIE 2
BRANCd l.
Alan S. Rosenthal, Chairman October 8, 1987 )
Thomas S. Moore (ALAB-877) j Howard A. Wilber 3
fi'"" CCT - 6 M In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-OLA
) 50-323-OLA (Diablo Canyon Nuclear Power )
Plant, Units 1 and 2) )
)
Marcia Preston, San Francisco, Calitornia, for the intervenor Sierra Club.
Howard V. Golub, Richard F. Locke and Bruce Norton, San Francisco, California, for the applicant Pacific Gas and Electric Company.
Benismin H. Vogler for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER I.
This proceeding involves the application of the Pacific Gas and Electric Company for amendments to the outstanding operating licenses for its Diablo Canyon nuclear facility.
The requested amendments would permit the applicant to increase the capacity of ea :h of the f acility's two spent fuel pools from 270 to 1324 spent fuel rod assemblies. The additional capacity would be achieved by removing the existing storage racks and replacing them with so-called "high density" racks that allow the storage of assemblies in closer proximity to one another.
8710130058 871000 PDR ADOCK 05000275 A O PDR U
s 4
2 In a September 11, 1987 initial decision, the Licensing Boarc ccnsidered each of the contentions of the Sierra I
Club, the single remaining intervenor in the proceeding, that had been admitted for litigation.1 Concluding that none of those contentions was meritorious, the Board authorized the Commission's Director of Nuclear Reactor Regulation to issue the license amendments.
On September 24, 1987, the Sierra Club noted an appeal from that decision, which appeal also embraces a challenge to a September 2, 1987 Licensing Board order rejecting the 2
Sierra Club's proffer of a late-filed contention.
Accompanying the notice was a motion under 10 CFR 2.788 for a stay of the effectiveness of the September 11 decision pending the outcome of the appeal. The stay motion is opposed by both the applicant and the NRC stuff. For the following reasons, we agree with those parties that 1
See LBP-87-25, 26 NRC . Two other interveners withdrew from the proceeding and their contentions were thereupon dismissed.
2 See LBP-87-24, 26 NRC . Before noting its appeal from the initial decision, the Sierra Club attempted to take an independent appeal from the September 2 order. That endeavor failed because it was not countenanced by 10 CFR 2.714a, the sole provision of the Rules of Practice permitting interlocutory appeals. See ALAB-873, 26 Nhc (September 18, 1987). ALAB-873 went on to observe, hcwever, that the order would be subject to challenge in connection with any appeal the Sierra Club might take frem the September 11 initial decision.
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the relief sought by the Sierra Club is not warranted here.
Accordingly, the motion is denied and the previously entered interim stay dissolved.3 II.
Consideration of stay applications requires us to apply the traditional stay criteria enunciated by the courts and incorporated into the Commission's regulations.4 Those criteria are (1) whether the moving party has made a strong chowing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public interest lies. As we recently had occasion to reiterate
[n]one of these factors is necessarily dispositive, but the potential for irreparable injury and the likelihood that a movant will prevail on the merits generally get primary attention. Moreover, the strength of a movant's showing on one of these factors determines how strong the showing must be on other factors to 3 See Order of September 25, 1987 (unpublished). That order instructed the applicant not to take any action sanctioned by the amendments pending our further order. We took this step immediately upon receipt of the stay motion to enable a full and orderly examination of the claims contained therein.
4 See 10 CFR 2.788(e). See generally Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1),
CLI-86-4, 23 NRC 113, 121-22 (1986) (citing Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir.
1958), and Washington Metropolitan Area Transit Comm'n v.
Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977)).
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justify.a stay.
With these principles'in mind, we turn to the foundationLof the Sierra Club's assertion of entitlement to stay relief.
A.' 10 CFR Part 51 contains the Commission's regulations implementing the National Environmental Policy Act of 1969, as amended (NEPA). Among other things, with-exceptions not relevant.here,.those regulations contemplate that the NRC staff will prepare an environmental assessment of the proposed licensing action.6 That assessment shall identify the proposed action and include a "brief" discussion of the need for that. action, the alternatives to it, and the environmental impacts of the proposal and the alternatives.7 Upon completion of the assessment, the staff will determine whether -(1) to prepare a full' environmental impact statement (EIS), or (2) to issue instead a finding to the effect that the proposed action will have no l
i 5 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC , (May 8, !
1987) (slip opinion at 6) (citing for the second proposition Cucmo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985)).
6 See 10 CFR 51.21, 51.25. The exceptions are set forth in 10 CFR 51.20(b) (which lists the types of actions that recuire in all circumstances an environmental impact ,
statement or supplement thereto) and 10 CFR 51.22(c) (which identifies those categories of actions that the Commission has determined do not individually or cumulatively have a significant ef rect on the human environment) .
See 10 CFR 51.30(a).
i
L '.
5 significant impact upon the environment (in which case an EIS is not necessary) .
.- 1. It is undisputed that such an environmental.
assessment was prepared in connection with the proposed reracking of the Diablo Canyon spent fuel pools. On the basis of that assessment, the staff concluded that there are no significant radiological or non-radiological impacts associated with the proposed action and that the proposed license amendments will not have a significant effect on the quality of the human environment. Therefore, the Commission has determined, pursuant to 10 CFR 51.31, not to prepare an environme proposed amendments.gtal impact statement for the None of the timely-filed contentions admitted for litigation and actually heard expressly challenged the sufficiency of the staff's environmental assessment or O
asserted that a full EIS was required. Rather, it appears
)
O See 10 CFR 51.31, 51.32.
' Environmental Assessment by the Office of Nuclear Reactor Regulation Relating to the Expansion of Spent Fuel Pools, Facility Operating License Nos. DPR-80 and DPR-82, Pacific Gas and Electric Company, Diablo Canyon Nuclear Power Plant, Unit Nos. 1 and 2, at 12, received into evidence below as NRC Staff Exhibit 2 (Tr. 298).
10 In this connection, nothing in those admitted i contentions appears to embrace the Sierra Club's claim in l its stay papers that the environmental assessment did not l adequately consider alternatives to the reracking proposal.
Although Contention I(B)7 referred to the failure of certain
" Reports" to discuss specified alternatives, in Contention I(A) the Sierra Club indicated that, by the term " Reports",
(Footnote Continued)
O e
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that specific claims to that effect surfaced for the first I time at the outset of the evidentiary hearing on June 16, 1987.11 The Licensing Board declined to entertain the i attempted oral presentation of the claims and directed that l they be submitted in writing.12 Thereafter, on June 29, the l l
Sierra Club filed a motion seeking to have this cdoitional ]
contention admitted to the proceeding:
I The proposed action significantly increases the consequences of loss of cooling accidents in that ;
a loss of water in the spent fuel pools could lead j to spontaneous ignition of zircalloy [ sic] j cladding of the fuel elements in the high density configurat{gnwithsignificantreleasesof radiation.
The motion explained that the contention was grounded upon a !
l January 1967 draft report prepared by the Brookhaven q National Laboratory, entitled "Beyond Design-Basis Accidents in Spent Fuel Pools (Generic Issue 82)" (hereafter i
l
)
(Footnote Continued) it had reference to documents generated by the applicant.
In any event, we think the attack upon the environmental assessment's treatment of alternatives to be far wide of the mark. For example, contrary to the Sierra Club's assertion that it was ignored, the dry cask storage system alternative was discussed at page 4 of the environmental assessment.
11 Tr. 142-49.
12 Tr. 291, 630, 1
Motion to Include Issues Raised in Generic Issue 82 as Contentions in this Proceeding and to Direct Preparation of an Environmental Impact Statement (June 29, 1987) at 1.
e 1
7 Brookhaven report).14 According to the Sierra Club, given the discussion in the report of the'possible consequences.of a loss of water in the spent fuel pools, the staff should not have issued a "no significant impact" finding but, instead, should have prepared an EIS on the reracking !
proposal.
In its September 2 order, the Licensing' Board ruled that the late-filed contention was inadmissible for want of a sufficient basis. Accordingly, the Bcard's initial decision did not address whether tha staff's environmental assessment provided an inadequate foundation for the "no significant impact" finding, with the consequence that an EIS should have been prepared.
- 2. Before us, the Sierra Club's insistence that it will prevail on its appellate claim that NEPA requires the preparation of an EIS hinges upon its further assertion that 14 The Sierra Club submitted the draft report to the Licensing Board at the evidentiary hearing. Although the stay papers stated that it was also attached to the June 29 motion as exhibit 1, that does not seem to be the case.
Nevertheless, we regard the report as being included in the record for present purposes.
The final report, entitled " Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82", was issued in July 1987 and bears the designation NUP.EG/CR-4982.
Because the Sierra Club has relied exclusively upon the draft report, all future references are to that report. In any event, we have found no crucial differences between the draft and final reports.
(
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the late-filed contention based _upon the Brookhaven report was improperly rejected. For,.if that contention was correctly denied admission, it necessarily follows that the Sierra' Club did not have before.the Licensing Board any
. contention specifically asserting that the staff's environmental assessment did not satisfy the NEPA mandate.
' And it is settled that a party normally may not raise on appeal an issue that was not properly presented to the trial tribunal.15 As above'noted, the Licensing Board' rejected the contention because it failed to satisfy.the requirement in-
'the Rules of Practice that its basis be " set forth with reasonable specificity."16 More particularly, the Board determined that there was no nexus between the Diablo Canyon reracking proposal and the Brookhaven report on which the contention was founded.17 We agree with the Sierra Club that, at least as articulated by the Licensing Board, the conclusion below on 15 See e.g., Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 235 (1986); ~ Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 NRC 341, 348, reconsideration denied on other grounds, ALAB-467, 7 NRC 459 (1978).
16 10 CFR 2.714(b).
l.
I See LBP-87-24, supra, 26 NRC at ___ (slip opinion at 11-15).
L- ._ .________--_ _ _ _ -
.m i\
s 9 the nexus question is et dubious correctness. There is,.
' however, another consideration suggesting that the Board quite likely reached the right result in the September 2 order.
Neither the contention nor the basis assigned for it contains an adequate explanation respecting why there is a reasonable possibility that the spent fuel pools would lose sufficient water to give rise to the chance of a fuel cladding fire and resultant radiation release discussed in the Brookhaven report. Yet such an explanation appears to have been required to meet the basis and specificity requirements for contentions.
As the Brookhaven report notes, there are limited
, occurrences that might bring about a significant loss of pool water: (1) a failure of the system that cerves to remove heat from the pool water, resulting in boil-off of the water; (2) a seismic event; (3) a striking of the pool walls by some externally-generated flying object (such as a turbine missile); (4) a failure of a seal protecting the integrity of the pool's water-tightness; and (5) a dropping onto the edge of the pool of a cask utilized to transfer spent fuel from the pool.10 In the context of the two 18 Brookhaven Report at 2-1 to 2-19.
oO lj I
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" surrogate" facllities utilized for analytic purposes (Ginna and Millstone 1 located in New York'and Connecticut respectively),'the report concludes that the likelihecd of cuch an untoward occurrence having that result is remote --
ranging from 3 chances in 100,000 per reactor year.(cask drop) to 1 chance in 10,000,000,000 per reactor year (aircraft crash'into the pool).19 Very recently, in the Vermont Yankee spent fuel pool proceeding similiarly involving high density storage racks, we emphasized that NEPA does not require NRC consideration (in.an EIS or elsewhere) of highly improbable -- i.e.,
remote and speculative -- events.20 It was thus not enough for the Sierra Club to point to the Brookhaven report as the sole basis for the new contention. Rather,'it was incumbent upon the intervenor to provide at least some reason to think 19 Id. at 2-29.
O Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC ,
(October 2, 1987) (slip opinion at 6) (citing San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1301 (D.C.
Cir. 1984), aft'd en banc, 789 F.2d 26, cert. denied, U.S. , 107 S. Ct. 330 (1986)). On the strength of that proposition, discussed at some length, we reaffirmed (on the intervenor's petition for reconsideration) the rejection in ALAB-869, 26 NRC (July 21, 1987) of a contention to the ettect that the staff was required to prepare an EIS to address the environmental risks associated with a hypothesized reactor accident producing a hydrogen detonation that, in turn, caused damage to the spent fuel pool.
f 11 that, at Diablo Canyon even if not at'Ginna or Millstone,
-the possibility of an event causing a major loss of. spent fuel pool water was sufficiently great to remove the hypothesized fuel cladding fire from the realm of the remote and speculative.
This, to repeat, was not done. Nor is there anything within the ambit of official notice to cure the omission.
True, it is a matter of common knowledge that the Diablo Canyon facility is located in a more seismically active area than is either Ginna or Millstone. But the evidentiary record in this proceeding reflects, and the Sierra Club does not dispute in its stay papers, that the spent fuel pools have been. determined upon analysis to be able to withstand the current design-basis earthquake for the facility.21 Therefore, any seismic event causing significant damage to the spent fuel poolc would qualify as a beyond design-basis incident. In observing in Vermont Yankee that remote and speculative events do not require consideration for NEPA purposes, we made specific reference to such incidents.22 21 See NRC Staff Exhibit 1, Safety Evaluation, at 9-14, received into evidence below at Tr. 298. We need not, and do not, pass at this stage upon the sufficiency of the analysis inasmuch as it has not been challenged in the stay papers. We may well have to reach that question, however, in our sucsequent full review of the initial decision.
22 See ALAB-876, supra, 26 NRC at (slip opinion at ,
- 6) . l l
l
._ ______-________a
6 12 In short, although'it may' persuade us otherwise upon a
' full' briefing of its appeal,23 we are:not satisfied at this ~
juncture that the Sierra Club is likely to' prevail on the- _
merits of its claim that the preparation of an EIS is a precondition-to approval of the reracking proposal. Nor are we now convinced of the substantiality'of the other claim in the stay papers: that the Brookhaven report' establishes that the grant of the licence amendment application will unreasonably endanger the public health and safety. As we i
23 It bears repeating what we said in the course of i determining in ALAB-865, supra, that the stay papers of the
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Seabrook interveners had not established a 1.ikelihood of uccess on the merits of'their appeal from the initial decision there involved:
The foregoing conclusions do not mean that the interveners' appeals from the March 25.
partial initial decision are necessarily doomed to failure. To begin with, even on the issues raised in the stay applications, it is possible that a full briefing will ;
persuade us that the interveners should '
prevail. All that we now decide is that the stay papers do not themselves demonstrate the requisite high probability of such success.
Moreover, we do not consider on a stay application any possible Licensing Board crror not asserted by the movants. --
Presumably, the interveners will advance in their appellate briefs claims of error that, perhaps because of the ten-page limit imposed by 10 CFR 2.788(b), were not included in their stay applications.
25 NRC at (slip cpinion at 27).
e
.A 13 have seen, the Sierra Club has supplied an inadequate basis for such a claim.24 B. The. foregoing considerations are equally dispositive of the Sierra Club's claim that it will suffer irreparable injury in the absence of the requested stay.
That claim rests entirely on the unsubstantiated premise that the Brookhaven report establishes both that the reracking will endanger the public health and safety and that NEPA required the filing of an EIS.to consider the environmental risks attendant upon a loss of the water in either or both of the two spent fuel pools.25 Moreover, it ,
is our current expectation that the Sierra Club's appeal will be decided on the merits by next March, when the next refueling outage for Unit 1 of the facility is to take 24 The Sierra Club takes note of the recommendation of two of the authors of the Brookhaven report (in Appendix B at 3) that spent fuel not be stored in high density racks for two years after being removed from the reactor. That recommendation was not founded, however, on an expressed belief that the use of such racks to store recently removed spent fuel would impose an undue threat to the public health and safety. In this connection, it appears that the recommendation was prompted by the thesis that, in the event of a loss of pool water, a self-sustaining fuel cladding fire would be less likely if the stored spent fuel were substantially decayed. Yet, to repeat, the disclosures in the report affirmatively establish that the possibility of a loss of pool water does not loom sufficiently large to present a significant safety risk.
25 on the latter score, the Sierra Club asserts that the courts will grant injunctive relief to preclude action in violation of NEPA.
W ~
,'* - ~ ,
14 i
26 '
. place Until that time, no additional spent: fuel =will.be
.pla~ced in either pool. 'At'this point, there are 68 spent fuel assemblics in each pool.27 We do not find any assertion by the Sierra Club that such a small number of stored assemblies might pose a safety problem even if transferred to the high density racks.
C. The absence of any demonstrated irreparable injury to the Sierra Club if a stay is denied makes it unnecessary to pass upon the applicant's insistence that it will suffer significant harm should s' stay be granted. Insofar as the-public interest factor is concerned, we do not believe'that
~
that' interest would be-furthered by granting a stay l notwithstanding the Sierra Club's failure to carry its burden on the first two, and most important, facters, l
The Sierra Club's request for a stay of the effectiveness of LBP-87-25 is denied. The interim stay granted in this Board's September 25, 1987 order is dissolved.
26 Affidavit of James D. Shiffer (October 2, 1987) attached to Pacific Gas and Electric Company's. Answer in Opposition to Sierra Club's Request for Stay (October 2, 1987). The affidavit further reflects that Unit 2 is not scheduled for its next refueling until later in 1988.
27 Ibid.
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5.
15 It is ao CRDEPED.
FOP THE APPEAL BOAED kEleanor
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E. liagins (j Secretary to the V Appeal Board l
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1.