ML20237E579
| ML20237E579 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/21/1987 |
| From: | Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#487-5122 ALAB-880, LBP-87-24, LBP-87-25, OLA, NUDOCS 8712290066 | |
| Download: ML20237E579 (26) | |
Text
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LY D0LKEILD-U5NhC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1R DEC 22 M1'19 ATOMIC SAFETY AND LICENSING APPEAL BOARD Ohht;hh thi.
Administrative Judges:
BRANCH Alan S.
Rosenthal, Chairman December 21, 1987 Christine N.
Kohl (ALAB-880)
Howard A. Wilber
' SERVED DEC 2 21987 3
-In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos. 30-275-OLA y
)
50-323-OLA l
(Diablo_ Canyon Nuclear Power
)
Plant, Units 1 and-2)
)
)
H
.Dian M.
Grueneich'and Marcia Preston, San Francisco, California, 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.
Benjamin H. Vogler for the Nuclear-Regulatory Commission staff.
DECISION This proceeding involves /the application of Pacific' Gas and Electric Company (PG&E) for amendments to its operating licenses for the two-unit Diablo Canyon facility.
The license amendments are to permit the expansion of the capacity of each unit's spent fuel pool from 270 to 1324 fuel assemblies by replacing existing storage racks with high density racks.
Initially, pursuant to 10 C.F.R.
S 50.92, the Commission staff found that "no significant hazards" were involved in PG&E's request, and it approved the issuance of the license amendments.
See 51 Fed. Reg. 19,430 (1986).
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2' EI l$ $3I T ] ; Tf; The-Sierra Club and the San Luis Obispo Mothers for Peace, which had already. requested a hearing on PG&E's application, i
asked both.the Commission and the U.S.
Court of Appeals for the Ninth Circuit to stay issuance of the license
- amendments.
The Commission decided to allow PG&E to qqq continue its installation of the new storage racks, but declined'to permit storage therein of more than 270 fuel assemblies, pending completion of a hearing before the Licensing Board.
CLI-86-12, 24 NRC 1 (1986).
The court, however, found that, in denying the Sierra Club and Mothers for Peace a hearing before issuance of the involved-license amendments, the Commission's "no significant hazards" determination did not comply with 10 C.F.R. S 50.92.
The court thus ordered'PG&E not to place any spent fuel assemblies in the Unit 1 pool and not to rerack Unit 2 until the completion of the administrative hearing; in the alternative, the court permitted PG&E to return the racks to their original configuration.
San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268, 1271 & n.1 (9th Cir. 1986).
In connection with~that hearing, the Licensing Board admitted four extensive contentions proffered by intervenor Sierra Club (contentions I(A), I(B), II ( A), and II(B)).
1 The Board admitted several other contentions of the Mothers for Peace and a third intervenor as well, but those (Footnote Continued)
3 Most of'each of those contentions concerned the effects of an earthquake on various aspects of the proposed reracked pools; a portion-of one, however -- contention I(B) (7) alleged-that PG&E had not considered two specified alternative types of onsite storage facilities.
See LBP-86-21, 23 NRC 849, 860-65, 873 (1986).
Just as the three-day hearing on these matters was to begin, the Sierra Club proffered yet another contention, raising concerns about the consequences of a spent fuel' pool loss of coolant accident (LOCA) and possible resulting spontaneous burning of the zircaloy cladding surrounding the spent fuel elements in high density storage.
The Sierra Club also sought the preparation of an environmental impact statement (EIS).
The Licensing Board took those new matters under advisement and proceeded with the hearing on the other already admitted contentions.
The Licensing Board subsequently issued a memorandum and order in which it concluded that the Sierra Club's
. late-filed LOCA contention did not meet the Commission's standards for admission, and that an EIS was not required.
LBP-87-24, 26 NRC (September 2, 1987).
About a week later, the Board issued its initial decision on the (Footnote Continued) parties subsequently withdrew from the proceeding and are not participants here before us.
4 contentions litigated at the hearing, resolving all issues in PG&E's favor and authorizing the issuance of the license amendments.
LEP-87-25, 26 NRC (September 11, 1987).
The Sierra Club now appeals the Licensing Board's decision rejecting its late-filed contention and the initial
. decision insofar as it concerns the disposition of i
l contention I(B) (7).
PG&E and the NRC staff oppose the i
appeal.
As explained below, we find the Sierra Club's arguments unconvincing, and we therefore affirm the two o
Licensing Board decisions in question.~
I.
The LOCA Contention The new contention proposed by the Sierra Club at the beginning of the hearing on its other already admitted contentions states:
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 to spontaneous ignition of zircalloy (sic]
cladding of the fuel elements in the high density configuration with significant releases of radiation.
2 The Sierra Club oarlier asked us to stay the effectiveness of the Licensing Board's decisions.
In ALAB-877, 26 NRC,,_ (October 8, 1987), we denied that motion.
The NRC ataff issued the license amendments to PG&E on October 20, 1987, and the Commission subsequently denied the Sierra Club's request to deny the amendments' effectiveness.
Commission Order of October 26, 1987 (unpublished).
The Ninth Circuit also denied a stay on November 13, 1987, and has deferred judicial review pending (Footnote Continued)
5 The Sierra Club alleged no violation of any existing safety standard or regulation.
It based the contention, however, on the findings of the Brookhaven National-Laboratory in a draft report titled "Beyond Design-Basis' Accidents in Spent Fuel Pools iGeneric Issue 82)" (January 1987) [ hereinafter "BNL Report").
According to the'intervenor, the BNL Report clearly identifies-the storage of recently discharged nuclear fuel in high density spent fuel storage racks'as posing significant dangers to the public health and safety.
The proposed spent fuel storage facilities-at Diablo Canyon would store freshly discharged fuel-in high density racks like those identified in the Brookhaven report as hazardous.
Two.of the authors specifically recommend against the storage of spent fuel in the manner proposed for Diablo Canyon.
Sierra Club Motion to Include Issues Raised in Generic Issue
'82 as. Contentions (June 29, 1987) [ hereinafter " Sierra Club Motion") at 1-2 (citations omitted).
In light of the BNL the Sierra ~ Club also requested the Licensing Board
- Report, to order the staff to prepare an EIS on the modification of the Diablo Canyon spent fuel facilities.
Id. at 6-7.
The Licensing Board, however, concluded that there was no " nexus" shown between the BNL Report and the Diablo Canyon spent fuel pools and thus that the contention was (Footnote Continued)
See Sierra completion of the administrative review process.
Club v. NRC, No. 87-7481 (9th Cir. November 25, 1987).
The staff first referred to this report in Board Notification No. 87-05 (March 27, 1987).
I 6
L inadmissible"for lack of a basis.
In particular, the Board stressed that the contention " assumes a. total loss of coolant in the Diablo Canyon spent fuel pools without specifying any accident. scenario that would cause that loss."
LBP-87-24, 26 NRC at (slip opinion at 10).
It stated-that the Sierra Club had made no attempt to suggest relevant similarities between Diablo Canyon and the surrogate pressurized water reactor- (PWR) used for the'BNL l
study, the Ginna facility in upstate New York.
Ij{. at (slip opinion at 10-11).
The Board further found that the newly proposed contention was not included in any already admitted contention.
Lastly, the Board determined that the contention was based on a hypothesized "beyond' design-basis" accident, for'which an EIS is not required under the National Environmental' Policy Act of 1969, 42 U.S.C.
S 4321
[ hereinafter "NEPA"], or authorized as a matter of Commission discretion under its Interim Policy on " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969," 45 Fed. Reg. 40,101 (1980) [ hereinafter "NEPA Policy Statement"].
LBP-87-24, 26 NRC at (slip opinion at 13-14) (citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-869, 26 NRC (July 21, 1987), reconsideration denied, ALAB-876, 26 NRC-(October 2, 1987)).
In view of these determinations, the Board found it unnecessary to balance the five factors set forth in 10 C.F.R.
D 7
S 2.714 (a) (1) against which late contentions are measured.
LBP-87-24, 26 NRC at (slip opinion at 15).
On appeal, the Sierra Club argues that it has demonstrated a nexus between the BNL Report and Diablo Canyon and thus its contention has a sufficiently specific basis warranting admission.
It also asserts that the requirements for admission of a late-filed contention have been met.
In addition, it presses its view that an EIS is required for this license amendment because of the findings of the BNL Report.
We address these arguments seriatim.
A.
The Commission's Rules of Practice require "the bases for each contention [to be] set forth with reasonable specificity."
10 C.F.R. S 2. 714 (b).
The purposes of this rule are to assure the proper invocation of the hearing process and_to provide adequate notice to other parties as to exactly what they will be called upon to litigate.
See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21, modified on other grounds, CLI-74-32, 8 AEC 217 (1974).
The Sierra Club's proffer of its LOCA contention does not satisfy these requirements.
Its pleading before the Licensing Board alleges no lack of compliance with any existing safety standard.
It notes, however, the proposed use of high density racks for storage of spent fuel at i
1
8 Diablo Canyon and refers generally to the BNL Report's findings with regard to such racks and the possibility of a zirculoy cladding fire in the event of a substantial loss of pool cooling.
But, as the Licensing Board pointed out, the Sierra Club's filing does not mention, let alone discuss, a single mechanism or scenario that might cause such a LOCA at Diablo Canyon.
LBP-87-24, 26 NRC at (slip opinion at 10).4 Indeed, it does not even refer to the five initiating events hypothesized by BNL for purposes of the study.
See Sierra Club Motion passim.6 Without such a triggering event, there is no connection between the spent fuel pools 4 Earlier in this proceeding, the Licensing Board rejected, for lack of a credible accident scenario, loss of spent fuel cooling contentions filed by both the Sierra Club and another intervenor.
LBP-86-21, 23 NRC at 856, 857, 862, 863.
Thus, the Sierra Club was on notice concerning the requirements for admission of such a contention.
l 5 As we noted in our stay decision, the BNL Report 1
postulated the following scenarios leading to a significant depletion of pool water:
(1) a failure of the system that serves 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.
ALAB-877, 26 NRC at (slip opinion at 9).
6 The word " earthquake" appears on page 5 of the Sierra (Footnote Continued) l
-O 9
at Diablo Canyon and the BNL Report's ultimate conclusions concerning high density racks -- and, thus, no basis for the contention.
On appeal, the Sierra Club now argues that all of the events identified by BNL as initiators of a LOCA "are clearly potential scenarios for (spent fuel pool] failure at Diablo Canyon."
Sierra Club's Brief, supra note 7, at 12.
It also suggests that a spent fuel cask drop and seismic event are particularly likely events.
Id. at 8, 9.
Like courts, we usually do not consider arguments, such as these, that are raised for the first time during appellate review.
(Footnote Continued)
Club's motion, but in a reference to another contention.
Most of the motion is, in fact, devoted to the 10 C,F.R S 2.714 (a) (1) criteria for admission of a late (but otherwise sufficiently based) contention.
7 Because we agree with the Licensing Board that the contention lacks a basis, we need not decide whether the Board correctly found a lack of " nexus" between the BNL Report and the Diablo Canyon facility, as we used that term in Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 773 (1977).
We concur, however, in the Sierra Club's criticism of the portion of the Licensing Board's decision suggesting that the Sierra Club should have supplied, with its contention, " comparisons or data" showing greater similarity between'Diablo Canyon and Ginna than the fact that they are both PWRs.
See Sierra Club's Brief (October 26, 1987) at 10; LBP-87-24, 26 NRC at (slip opinion at 10-11).
Had the Sierra Club's contention and basis set forth a credible causative accident scenario, the type of data to which the Licensing Board 3
referred would be more properly required for a merits disposition.
See generally Mississippi Power and Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 1
423, 426 (1973).
._________--_______-__ - _ _ ______________ O
l l
10 l
Tennessee Valley Authority (Hartsville Nuclear Plant, Units l
1A, 2A, 1B, and 2B), ALAB-463, 7 NRC 341, 348, reconsideration denied, ALAB-467, 7 NRC 459 (1978)..
But even if the Sierra Club's arguments were otherwise permissible, they would still fail.
The Sierra Club makes no allegation that the Diablo Canyon spent fuel pools are not designed and built, in accordance with regulatory to withstand the maximum anticipated earthquake standards, at that site.
Nor is there any basis evident for the Sierra fuel casks are likely Club's implicit assumption that spent to be transferred at Diablo Canyon in the manner postulated in the BNL Report's cask drop scenario.
See BNL Report at the Sierra Club 2-16.
Under the Commission's requirements, is not expected to prove, at the contention admission stage, that a seismic event or cask drop serious enough to cause a occur; it must, however, major loss of pool coolant might allege at least some credible foundation for such a scenario.
Cf. Metropolitan Edison Co. (Three Mile Island In this connection.- it is worth noting that the 8
least five concrete walls and foundation of each pool are at feet thick and lined with steel plate.
Each pool is roughly 35 feet wide, 37 feet long, and 40 feet deep.
In a normal operating condition, there is a minimum of 23 feet of water above the top of the stored fuel.
LBP-87-25, 26 NRC at (slip opinion at 23).
Thus, before even the top of the fuel assemblies would be exposed, about 30,000 cubic spent feet of water (approximately 224,000 gallons) would have to escape from the pool (without corrective action) via some unidentified mechanism.
.____-___-__m
Lb-1 l
11 Nuclear Station, Unit No. 1), CLI-80-16, 11 NRC 674, 675 (1980).twhere there is no allegation of lack of compliance
_q with existing safety regulations, credible. reactor LOCA scenario is prerequisite for admission of contention 1
concerning accident control measures).
We therefore agree with the Licensing Board that, because the Sierra Club has not even suggested a credible accident initiator, its contention-lacks the requisite basis for admission.
See
. slip opinion at 11-12).9 LBP-87-24,- 26 NRC at
(
B.
1.
Section 102 (2) (C) of NEPA, 42 U.S.C.
S 4332 (2) (C), requires an environmental impact statement for
" major Federal actions significantly affecting the quality of the human environment. "
Claiming that the BNL Report provides. evidence of "significant impacts on the human environment," the Sierra Club argues that an EIS is required here "concerning the possibility of and impact of Zircaloy cladding. fires" at Diablo Canyon.
Sierra Club's.Brief at 18, 17.10 Intervenor also asserts that the Licensing Board
' As noted supra pp.
6-7, the Licensing Board did not address the factors to be weighed for admission of a late contention in 10 C.F.R. S 2. 714 (a) (1).
Thus, that matter is not squarely before us for review.
Moreover, in light-of our agreement with the Board's conclusion about the contention's lack of basis,'we need not take up this legal issue on our own.
10 The Sierra Club also briefly refers to section 102 (2) (E) of NEPA, 42 U.S.C. S 4332 (2) (E), which obliges (Footnote Continued)
l 12 misapplied'our-ruling.in Vermont Yankee, ALAB-869, 26 NRC The Sierra Club argues that that decision simply determined that the specific accident scenario involved
'there.was too remote and speculative to trigger the EIS requirement, " reconfirm [ing) the agency's long-standing policy of considering the need to' prepare an EIS on a case-by-case. basis."
Sierra Club's Brief at 19. - In the Sierra Club's view, it has linked the BNL Report to Diablo Canyon and.thus demonstrated that a zircaloy cladding fire is not remote and speculative; Vermont Yankee therefore does not pertain here, so as to bar its request for an EIS.
The Sierra Club also argues that, even if the Licensing Board the applied. Vermont Yankee correctly, NEPA does not permit exclusion from its EIS requirement of all accidents labelled "beyond design-basis" on the ground that they are remote and speculative.. Ibid.
(Footnote Continued) involve agencies to study alternatives to proposals that
" unresolved conflicts concerning alternative uses of available resources."
We have found no indication that the Sierra Club raised this separate NEPA issue before the Board below so as to preserve it for appeal.
See supra pp. 9-10.
its brief on appeal fails to develop this point
- Moreover, and thus we do not consider it.
Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC (September 15, 1987) (slip opinion at 3-6).
We however, that the staff's Environmental Assessment for l
- note, this license amendment application considers six alternatives.
See NRC Staff Exhibit 2 at 2-5.
See also infra pp. 20-25.
e 13 The Commission's minimum, principal design criteria for spent fuel pools require, among other things, the prevention of a "significant reduction in fuel storage coolant inventory under accident conditions" and the provision of monitoring systems "to detect conditions that may result in loss of residual heat removal capability
[i.e., cooling water and its associated systems] and excessive radiation levels."
10 C.F.R. Part 50, Appendix A, General Design Criteria 61 and 63.11 Accidents that contemplate " sequences of postulated successive failure more severe than those postulated for the design basis of protective systems and engineered safety features" are variously termed "beyond 1
design-basis," " Class 9,"
or " severe" accidents.
Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257, 258 (1979); NEPA Policy Statement, 45 Fed. Reg. at 40,104.
See generally " Policy Statement on Severe Reactor Accidents Regarding' Future Designs and Existing Plants," 50 Fed. Reg. 32,138 (1985).
The Commission considers such accidents "to be so low in probability as not to require specific additional provisions in the design of a reactor 11 General design criteria (GDC) are broadly stated engineering and safety goals that " constitute the minimum requirements for the principal design criteria of water-cooled nuclear power plants."
" Regulations" set forth more detailed requirements, while less formal staff documents (such as " Regulatory Guides" and " Standard Review Plan" provisions) provide guidance for compliance with the GDC.
Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 406 (1978).
14 facility."
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-12, 26 NRC n.17 (November 5, 1987).
Thus, because spent fuel pools must be designed to prevent a significant loss of coolant inventory, an i
accident scenario that assumes such an event -- like the zircaloy cladding fire hypothesized by the Sierra Club and the BNL Report -- is necessarily a beyond design-basis considered to be of very low probability.12
- accident, l
12 The Sierra Club questions the use of the phrase
" design-basis" in this proceeding.
It reasons that, because the Diablo Canyon spent fuel pools were originally designed to hold 270 assemblies each, the proposed amendment to-
~ increase storage capacity to 1324 assemblies is itself beyond the design-basis of the plant.
Sierra Club's Brief at 22-23.
As PG&E notes, however, the Sierra Club misunderstands the engineering concept of " design bases."
Pacific Gas and Electric Company's Brief (November 25, 1987)
[ hereinafter "PG&E's Brief") at 20-21.
The focus of this concept is on functional goals, as is evident from the Commission's general definition of design bases in 10 C.F.R.
S 50.2:
that information which identifies the specific functions to be performed by a structure, system, or component of a facility, and the specific values or ranges of values chosen for controlling These parameters as reference bounds for design.
values may be (1) restraints derived from generally accepted " state of the art" practices for achieving functional goals, or (2) require-ments derived from analysis (based on calculation and/or experiments) of the effects of a postulated accident for which a structure, system, or component must meet its functional goals.
As we have seen, one design-basis function of a spent fuel fuel stored therein pool is to provide cooling for the spent and to prevent the loss of a significant amount of cooling (Footnote Continued)
15 In San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1300-01 (D.C. Cir. 1984), aff'd en banc, 789 F.2d 26, cert denied, U.S.
107 S. Ct. 330 (1986), the court addressed the requirements of NEPA vis-a-vis such events of assertedly high improbability.
It held that, under the
" rule of reason," "NEPA.
does not require the consideration of Class Nine accidents in future EISs, nor does it require that final EISs be supplemented to take account of the Class Nine risk."
Id. at 1301.
The Commission, of course, cannot engage in definitional sleight-of-hand so as to avoid NEPA's demands; the Commission's belief that certain types of accidents are highly unlikely to occur must be reasonably well-founded.
See ibid.
The Sierra Club is thus incorrect in its view that NEPA does not permit the exclusion of beyond design-basis i
accidents from the EIS requirement.
Further, its reliance on the BNL Report to support its challenge to the characterization of a significant loss of pool coolant (followed by a zircaloy cladding fire) as a highly improbable, beyond design-basis event is unavailing.
The (Footnote Continued) water.
See 10 C.F.R. Part 50, Appendix A, GDC 61.
Although the design of the storage racks and the capacity of the pools at Diablo Canyon will be altered by the proposed license amendment, the design-basis functions of the pool are not to be changed and thus will remain in compliance with the fundamental regulatory criteria.
16 District of Columbia Circuit in San Luis Obispo-noted that the existence of ongoing research into beyond design-basis accidents -- like the BNL Report (see LBP-87-24, 26'NRC at (slip opinion at 7-8)) -- does not undercut the reasonableness of the Commission's view that such accidents nonetheless remain highly improbable and therefore beyond NEPA's mandate.
751 F.2d at 1301.
Moreover, the BNL Report itself describes the' initiating events that would lead to a' structural failure of a spent fuel pool as " extremely unlikely."
BNL Report at 2-2.
It also acknowledges the 4
i substantial uncertainties in the probability estimates of these events.-
Id. at S-4, 2-19.13 There is nothing, therefore,.to suggest that the loss of pool coolant and zircaloy cladding fire scenario the Sierra Club postulates is anything but a remote and speculative, beyond design-basis accident.
As we concluded in Vermont 13 We note that the final version of the BNL Report (transmitted to the Licensing Board and parties via Board Notification No. 87-13 on August 28, 1987) shows an even greater range of uncertainty with regard to seismically-induced structural failure of a pool.
It also substantially lowers the estimated probability of pool failure due to a cask drop to between two in 100 million and two in one trillion, so as to take account of recommended improvements in fuel cask handling procedures.
NUREG/CR-4982, " Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82" (July 1987) at 23, 27-28, 38.
j
4'
.7 1
Yankee,.ALAB-869, 26 NRC at (slip opinion at 27-28),
with regard to a somewhat different hypothetical accident scenario, NEPA does not require the consideration of such an event and an EIS.need not be prepared.
2.
The Sierra Club next argues that, according to
" governing" regulations of the Council on Environmental Quality. (CEQ) and relevant case law, "an event is not remote and speculative merely because there is a low probability that it will occur."
In this connection, it cites 40 C.F.R.
S 1502.22 (1986) and asserts that this CEQ regulation requires consideration, presumably in an EIS, of all significant, reasonably foreseeable adverse impacts, "'even if their probability of occurrence is low.'"
Sierra Club's Brief at 2 0. - The Sierra Club also claims that the District of Columbia Circuit's decision in San Luis Obispo, 751 F.2d at 1303, as well as other decisions, supports its view.
Sierra Club's Brief at 20-21.14 We disagree with the Sierra Club's reading and application of 40 C.F.R. S 1502.22.
In the first place, this CEO regulation is not concerned with whether or when an 14 Neither PG&E nor the NRC staff addressed the Sierra Club's "CEQ" argument.
Although we find no merit to the argument, it raises a nonfrivolous issue concerning what deference should be accorded another federal agency's
. regulations.
In the circumstances, we find the staff's failure to brief the matter particularly troubling.
l i
18 EIS should be prepared.
Rather, as we noted in Vermont Yankee, ALAB-876, 26 NRC at n.5, section 1502.22 is directed to those situations in which an agency has already decided to prepare an EIS, but relevant information is " incomplete or unavailable" due to exorbitant costs or inadequate state-of-the-art methodologies.
The regulation is concerned with full disclosure, requiring an agency to "make clear that such information is lacking."
See 51 Fed. Reg. 15,618, 15,620 (1986).
Other CEQ regulations, e.g.,
40 C.F.R.
SS 1508.18, 1508.27, are relevant to the determination of whether NEPA requires an EIS.
See 40 C.F.R. S 1502.3.
The Sierra Club has also omitted a significant proviso from its excerpt from section 1502.22.
The complete definition of " reasonably foreseeable" includes impacts which have catastrophic consequences, even if their probability of occurrence is low, provided that the analysis of the impacts is supported by credible scientific evidence, is not based on pure conjecture, and is wifjhin the rule of reason.
40 C.F.R S 1502.22 (b) (emphasis added).
This proviso was added to the regulation in 1986, in conjunction with CEQ's elimination of the requirement for a " worst case" analysis.
In CEQ's view, the worst case analysis was " unproductive and ineffective," capable of leading to " endless hypothesis and speculation."
51 Fed. Reg. at 15,620.
The new proviso is intended to impose some common sense limits on the inquiry into events of very low probability.
Id. at 15,621.
Section 1502.22 does not therefore automatically require
19 analysis of all catastrophic but highly improbable events, as.the Sierra Club suggests.
In'any event, the Commission does not consider.
substantive CEO regulations as legally binding on it because the NRC is an independent regulatory agency.
49 Fed. Reg. 9352, 9356 (1984).15 Instead, the Commission views its NEPA Policy-Statement as its counterpart to CEQ's section 1502.22.
Id. at 9356-58.
In the NEPA Policy Statement, the Commission describes those circumstances in which the NRC staff, as a matter of discretion, is to consider the 15 As we noted in Philadelphia Electric Co.- (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 700 n.21 (1985), aff'd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), petitions for review pending sub nom. Limerick Ecology Action, Inc. v. NRC, No.
85-3431, et al. (3d Cir.), the Supreme Court has expressly left open the' issue of the bindingseffect of CEO. regulations on independent agencies.
See Baltimore Gas'and Electric Co.
- v. Natural Resources Defense Council, Inc., 462 U.S.
87, 99 n.12 (1983).
Despite the Sierra' Club's suggestion (Sierra Club's Brief at 20), the District of Columbia Circuit's decision in San Luis Obispo does not hold that the CEQ regulation in question is binding on the NRC.
Rather, the court noted the Commission's position and the Supreme Court's reservation of judgment on the matter.
It then only assumed arguendo that section 1502.22 applied to the agency, before going on to find this regulation inapplicable to the particular circumstances at hand.
751 F.2d at 1302-03 & n.73.
Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984), and Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983), also cited by the Sierra Club, involved executive (rather than independent regulatory) agencies, as well as the earlier
" worst case analysis" version of section 1502.22.
- Thus, neither case advances the Sierra Club's argument, m_'
1.____m._..._._ _ _. _ ___.__ _ _. -., _- _ _ _ _ _ _ _. _ -. -._
.m.____._____
e 20 environmental impacts of a beyond design-basis accident.16 As we have previously determined, however, that policy statement does not apply to license amendment proceedings such as this.
Vermont Yankee, ALAB-869, 26 NRC at (slip opinion at 28-29).
In sum, the CEQ regulation on which the Sierra Club bases its claimed requirement of an EIS is neither applicable to this proceeding, nor, in any case, binding on the agency.
3.
Lastly, the Sierra Club argues that an EIS is needed to correct asserted shortcomings in the NRC staff's existing environmental documents, namely its May 21, 1986, Environmental Assessment (EA) and October 15, 1987, Supplement to the EA.
It complains that, in light of the BNL Report, these documents give inadequate consideration to alternative :ueans of spent fuel storage and fail to disclose fully to the public all the consequences of the reracking proposal.
The Sierra Club also points to dictum in the Ninth Circuit's decision earlier in this proceeding, San 16 In San Luis Obispo, 751 F.2d at 1301, the District of Cclumbia Circuit recognized the NEPA Policy Statement as an exe.cise of the Commission's discretion.
17 An environmental assessment is a concise statement usually prepared to "{a]id the Commission's compliance with NEPA when no environmental impact statement is necessary."
10 C.F.R. S 51.14 (a).
See also ALAB-877, 26 NRC at (slip opinion at 4-5).
4 21 Luis Obispo, 799 F.2d at 1271, where the court "strongly suggest(ed] that any doubt concerning the need to supplement the NEPA documents be resolved.in favor of additional documentation."
Sierra Club's Brief at 23-24.
.The Sierra Club's arguments are not entirely clear.
If its point is that the type of accident studied in the BNL Report must be given consideration in some environmental document- (either an EIS or more extensive EA), we have already disposed of that argument:
NEPA requires no consideration of such accidents.
If, on the other hand, its argument is that an EIS is required, or the EA is deficient, for some reason other than'the BNL Report (e.g., reliance on a 1979 generic EIS for spent fuel pool expansion proceedings), there is no indication that'the Sierra Club properly presented such an issue to the Licensing Board in
-the first. instance, so as to preserve its right to appeal the matter.18 In the circumstances, the Sierra Club is
'18 Notice of the issuance of.the staff's EA was published on May.29, 1986.
51 Fed. Reg. 19,430.
The Sierra Club fails to direct our attention to where or when it subsequently sought to challenge the alleged deficiencies in the EA.
We have discovered two instances in which the intervenor referred to the adequacy vel non of the EA, but neither involved a bona fide' attempt to place the issue in controversy as a contention before the Licensing Board.
The first such instance was a passing reference to the EA in a footnote in the Sierra Club's initial request to the Commission for a stay of the staff's issuance of the (Footnote Continued) l
_ _ _... _-_______-__- - _ _ _ D
w 22 therefore precluded from raising for the first time on appeal any challenge to the staff's EA that is founded os 9-10.19 something other than the BNL Report.
See supra pp.
(Footnote Continued) license amendments prior to the hearing.
Interveners' Application for a Stay (June 16, 1986) at 7 n.5.
In its order denying the stay, the Commission noted the lack of specificity in the Sierra Club's complaint.
CLI-86-12, 24 NRC at 12.
The Sierra Club might well have gone on to draft a more specific challenge to the EA and to submit this issue to the Licensing Board in accordance with the Commission's Rules of Practice, but it d..d not.
The only other mention of the adequacy of the EA was six months later in a motion for summary disposition before the Licensing Board.
In that motion, the Sierra Club sought denial of the license amendments for the alleged failure of the EA to comply with NEPA.
Motion for Summary Disposition (December 15, 1986) at 3-7.
The motion, however, expressly disclaimed any attempt to raise this matter as a contention in the proceeding (possibly because the time for submitting such issues had long since passed).
Id. at 1-2.
The Licensing Board denied the motion for Tailure to satisfy the Commission's criteria for summary disposition.
Memorandum and Order of January 28, 1987 (unpublished) at 2-4.
See 10 C.F.R. S 2.749.
The Sierra Club does not mention, let alone appeal, that Board ruling.
19 We note in passing, however, that, in explicit response to the Ninth Circuit's suggestion in San Luis Obispo, 799 F.2d at 1271, the staff supplemented its earlier EA -- before issuing the license amendments here at issue but well after the close of the hearing below.
See 52 Fed.
Reg. 38,977, 38,978 (1987).
We also note that the October 15, 1987, supplement contains a section on " Severe Accident Considerations."
Becausu that document was not part of the record below, we express no view on its content; because the Sierra Club has not preserved its right to appeal the general adequacy of the EA and has made no challenge to the timing of the Supplement to the EA, we express no view on that score either.
.o 4
23 II.
Contention I(B) (7)
The Sierra Club objects to the Licensing Board's initial decision in this proceeding (LBP-87-25) only insofar as the disposition of contention I(B) (7) is concerned.
This contention states that:
the [ applicant's] Reports fail to include consideration of certain relevant conditions, phenomena and alternatives necessary for independent verification of claims made in the Reports regarding consistency of the proposed reracking with public health and safety, and the environment, and with federal law.
In particular, the Reports fail to consider:
7) alternative on-site storage facilities including:
(i) construction of new or additional storage facilities and/or; (ii) acquisition of modular or mobile spent nuclear fuel storage equipment, including spent nuclear fuel storage casks [.]
(slip opinion at 31).20 The LBP-87-25, 26 NRC at J
Licensing Board's decision discusses PG&E's consideration of the two specified alternative onsite storage facilities.
The Board notes that, although the evaluation was brief, PG&E explained that neither of the alleged alternatives 0 The Sierra Club's Brief at 24-25 makes clear that the " Reports" at issue in this contention are those filed with the NRC by PG&E in support of its license amendment application.
In view of our decision on contention I(B) (7),
we have no need to decide whether the contention should have focused on the NRC staff's, rather than the applicant's, consideration of alternatives.
See Vermont Yankee, ALAB-869, 26 NRC at (slip opinion at 32).
_a
l l
24 l
l offered an increase in safety over the high density racks, and that both proposed alternatives invo'1ved certain technical, regulatory, and other disadvantages.
See id. at (slip opinion at 32-36).
The only evidence presented by the Sierra Club was its witness's testimony that, in his opinion, PG&E had not considered the alternatives seriously.
See Tr. 443-45.
The Licensing Board concluded that PG&E's consideration of alternatives was adequate and complied fully with the NRC's requirements.
It therefore denied contention I(B) (7) on the merits.
LBP-87-25,-26 NRC at (slip opinion at 11-12, 59).
The Sierra Club argues that it " presented expert testimony showing that the consideration given these alternatives by the applicant was not adequate to protect the public health and safety."
Sierra Club's Brief at 25.
It contends that PG&E's assertion that the two alternatives would not provide added safety is not supported by fact.
It claims further that the record provides no adequate basis 1
for comparison of the alternatives with the high density reracking proposal.
Ibid.21 21 The Sierra Club also complains that the alternative of storing newly discharged fuel in low density racks, as I
recommended by two contributors to the BNL Report, was not considered.
We have already addressed the Sierra Club's arguments in connection with the BNL Report.
See especially supra pp. 7-17.
We also note that, because contention (Footnote Continued)
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.v 4
i 4
25 Intervenor's challenge to the Licensing Board's disposition of contention I(B) (7) is wholly without merit.
The Sierra Club provides no references to the hearing transcript and underlying record -- indeed, no specifics whatsoever to support its generalized complaints.
See Ibid.-
Because the Sierra Club's brief thus fails to comply with-our Rules of Practice (see 10 C.F.R. S 2.762 (d) (1)) and leaves us'with no meaningful arguments to consider, we reject its appeal'in connection with contention I(B) (7) summarily.
See Vogtle, supra note 10, 26 NRC at (slip opinion at 3-6)..
Nonetheless, we have reviewed the record (including the hearing transcript) and find no cause to overturn the Licensing Board's. disposition of contention I(B) (7).
- See, e.g.,
Shiffer, et al.,
fol._Tr. 179, at 28-30; Ferguson, fol. Tr. 442, at 2-3, 39-41; Cleary, fol.
Tr. 604, at 2-9; Tr. 364-89, 393-98, 443-48.22 1
(Footnote Continued)
I (B) (7) mentions two other particular alternatives, it is not surprising that the litigation of this issue thus focused on those alternatives, rather than on the new alternative the Sierra Club now suggests.
22 As is our' practice, we have also reviewed on our own those portions of the Licensing Board's initial decision that have not been appealed, as well as the underlying record.
See Georgia Power Co._
(Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859, 25 NRC 23, 27 (1987).
We find no errors warranting corrective action.
=
26 LBP-87-24, 26 NRC and LBP-87-25, 26 NRC are affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD
(
feanorE.d. &
n El Hagins/)
Secretary to the v Appeal Board l
1 4
.___________________________.______-a