ML20237E819
| ML20237E819 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/11/1987 |
| From: | Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-5140 OLA, NUDOCS 8712290206 | |
| Download: ML20237E819 (41) | |
Text
[h//8 l
L DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR' REGULATORY COMMISSION CEFORE'Ti1E ATOMIC SAFETY AND LICENSING APPEAL BOARD N DEC 16 P4 :10 IE C!y. res y
, in the Matter of ) g h hcBRdi
[ h yc fc h W
) ' /
PACIFIC CAS AND ELECTRIC ) Docket Nos. 50-275 OLA
- o. :- COMPANY ) - ; 50-323 OLA
-) ,
(Diablo Canyon Nuclear Power Plant, ) ,JSpent Fuel Pool)
Units 1 and 2) )
. g-
.>A f.
RESPONSE OF NRC STAFF-TO APPEAL OF SIERRA' CLUB FROM THE LICENSING BOARD'S
, MEMORANDUM AND ORDER OF SEPTEMBER 2,1987,
! AND INITIAL DECISION OF SEPTEMBER 11, 1987 Benjamin H. Vogler Senior Supervisory Trial Attorney c
December 11, 1987 8712290206 871211 PDR ADOCK 05000275 0 PDR ,
0 JS
UNITED STATES OF AMERICA NUCLEAP REGULATORY COMMISSION DEFORE T11E ATOMIC SAFETY AND LICENSING APPEAL BOARD g,*'
f r. the Matter of )
) : .-
' PACIFIC GAS AND ELECTRIC ) Dock'et 'Nos. 50-275 OLA COMPANY ) ,j 50-323 OLA
) -
(Diablo Canyon Nuclear Power Plant, ) - (Spent Fuel Pool)
Units 1 and 2) ) .
I L RESPONSE OF-NRC STAFF TO APPEAL OF l SIERRA CLUB FROM THE LICENSING BOARD'S l' MEMORANDUM AND ORDER OF SEPTEMBER 2,1987, l- AND INITIAL DECISION OF SEPTEMBER 11, 1987 l'
Benjamin H. Vogler Senior Supervisory Trial Attorney December 11, 1987 I-
- -_ _ . _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ = _ _ _ _ _ ___________________________o
i TABW OF O'NTENT
. a .
5 ,. Page TABE OF AUTHCR I T I ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . . . . .
4
- 1. I NTRCDLCr im. . . . . . . . . . . . . . . . . . . . . . . . /.#........................ 1 iI. mcya nto.................................................... 2 I i 1 . D I SQJSS i m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The Sierra Club's Late-Filed Zircaloy Cladding Fire Contention was Properly Denied by the Licensing Board.... 11
- 1. Nexus , Spec i f i c i ty , Ba s i s . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
- 2. The Requirements for Adnission as a Late-filed Contention Have not Been Satisfied.................. 19
- 1. Good Cause..................................... 20 ii. AvalIability of Other Means %hereby Petitioner's interest Will be Protected........ 23 111. D e Extent to %hich the Petitioner's Partici-pation may Reasonably be Expected to Assist in Developing a Sound Record................... 24 Iv. The Extent to %51ch Petitioner's Interest Will be Represented by Existing Parties............. 25
- v. The Extent to %hich Petitioner's Participation
- Will Broaden the issue or Delay the Proceeding. 25 B. An EIS is not Required for "This License Amendnent.. . . . . . . 25 C. The Licensing Board's Rejection of Contention 1(B)(7) wa s Co r re c t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 IV. GNC1DS i m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-. _.._..._________w
'I Table of Authorities .
CASES j
. P.ase i J
San Luis Obispo Abthers for Peace v. U.S. MC, 799 F.2d 1268 (9th Ci r.1986); dissent , 004 F.2d 523 (9th Ci r.1986) . . . . . . . . . . 4 k
k AD,tlNISTPATIVE DECISIONS Camonwalth Edison Co. (Braidwood Nuclear Power Station, Uni ts 1 and 2), CLI-86-8, 23 bRC 241 (1986)..................... 20, 24, 25 Cul f States Utilities _ (River Bend Station, Units 1 and 2),
ALAB-444, 6 NRC 760 (1977)...................................... 11 Pacific Cas and Electric Co. (Diablo Canyon Nuclear Power Plant, Lkii ts 1 and 2), ALAB-877, 26 bRC slip op. (October 8, 1987).. 9, 10, 11, 14, 15, <
16, 18, 19, 29, 30:
Paci fic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Uni ts 1 and 2), ALAB-873, 26 mC slip op. (Septernber 18, 1987) 9 Pacific Cas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), W P-87-25, 26 m C slip op. (Septenber 11,19b7) 1, 9, 10, 11, 15 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Uni ts 1 and 2), WP-87-24, 26 tRC slip op. (Septerber 2,1987) 1, 8, 12, 13, 16, 19, 27, 28, 29, 30 Pacific Cas and Electric Co. (Diablo Canyon Nuclear Power Plant,
. Un i t s 1 and 2 ) , CLi-8 6-12, 2 4 WC 1 (19 86 ) . . . . . . . . . . . . . . . . . . . . . . 4 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant,
. Uni t s 1 and 2 ) , WP-8 6-21, 23 bRC 8 49 (1986) . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 21 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Peer Plant, Uni ts 1 and 2 ) , AIAB-644, 13 tac 903 (1981 ) . . . . . . . . . . . . . . . . . . . . . 17 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), W P-79-26, 10 W C 453 (1979).................... 17 i
l
- lii -
ADMINISTRATIVE DECISIONS (CNT.)
Portland General Electric Conpany, et al. (Trojan Nuclear Plant)
ALAB-5 3 4 , 9 NRC 2 8 7 ( 19 7 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Southern Cali fornia Edison Co., et al . (San Onofre Nuclear Generat ing Stat ion, Uni ts 2 and 3), ALAB-680,16 bRC 127 (1982) . 23 Texas Ut ilities Electric Co., et al. (Caranche Peak Steam Electric
~
Station, Unit 1), ALAB-868, WC ' slip op. (June 30,1987) 20, 23, 24 Vernunt Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 m C slip op. (July 22,1987);
reconsideration den'd. ALAB-876, 26 mC slip op.
(October 2, 1987)............................................... 26, 28, 29 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1 and 2 ) , AIAB-73 9, 13 IK 3 3 5 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 REGJLATICNS 1 0 C . F . R . 6 2 . 71 4 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1 0 C. F . R. 9 2 . 714 ( a ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25 10 C.F.R. 6 2.714(b).............................................. 8 10 C.F.R. 6 2.715(a).............................................. 7 i
10 C.F.R. 6 2.760a................................................ 23 10 C.F.R. 6 2.1101................................................ 5
. 10C.F.R.650.91................................................. 3 l 10 C.F.R. 6 51.20(b).............................................. 30 10 C.F.R. 6 51.31................................................. 27 10 C.F.R. 6 51.32................................................. 26, 27 i
I i
I I
l l
.__-__________________0
- Iv -
MIS LLANEDUS Consideration of issuance of Amerdents to Facility Operating -
Licenses DPR-80 and DPR-82 for Diablo Canyon Pcwer Plant, thits 1 and 2, Respectively, and Proposed No Significant Hazards. Consideration Determination and Opportunity for Hearing, 51 Fed. Reg. 1451 (January 1 3 , 1. 9 8 6 ) . . . . . . . . . . . . . . . . . . . 2 92 issuance of Environmental Assessment and Finding of No Significant l Irrpact; Paci fic Cas and Electric Co. , 51 Fed. Reg.19,430 (May 29, 1986).................................................. 3 tATEG-75/014, " Reactor Safety Study, An Assessment of Accident Risks in ll.S. Conmerical Nuclear Power Plants," (WASH 1400), ,
Oc t obe r 1 9 7 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 bOREG/m-4982, " Severe Accidents in Spent Fuel Pools in Support o f Gener i c Sa fe ty i s sue 8 2," J anua ry 19 87. . . . . . . . . . . . . . . . . . . . . . . 10, 13, 14, 15, 16, 17 !
Pacific Cas and Electric Co., Issuance of Amerdents to Facility Operation License arrl Final Determination of No Significant Hazards Considerat ion, 51 Fed Reg. 20,725 (June 6,1986) . . . . . . . . 3 9
l I
l
. ~ . . - ...
ll l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
. ) .
PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) : 50-323 OLA
) 9 (Diablo Canyon Nuclear Power Plant, ) (Spent Fuel Pool)
~ Units 1 and 2) )
RESPONSE OF NRC STAFF TO APPEAL OF SIERRA CLUB FROM THE LICENSING BOARD'S MEMORANDUM AND ORDER OF SEPTEMBER 2,1987, i AND INITIAL DECISION OF SEPTEMBER 11, 1987
.l. INTRODUCTION On October 26, 1987, the Sierra Club filed a brief in support of its appeal from the Atomic Safety and Licensing Board's (Licensing Board)
Memorandum and Order (Order)'1 of September 2, 1987 and its initial Decision. (ID) 2,,/ of September 11, 1987. In its Order of September 2, 1987, the Licensing Board denied the Sierra Club's motion to admit two late-filed contentions concerning the consequences of a possible loss of coolant in the Diablo Canyon spent fuel pools and the need for the NRC staff (Staff) to prepare an environmental impact statement (EIS) concern-ing the Pacific Gas and Electric Co.'s (Applicant) proposed amendment to
-1/ Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), L B P-87-2 4 , 26 NRC , (September 2, 1987) Slip Op.
1
-2/ Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-87-25, 26 NRC , (September 11,1987) Slip Op.
p L
I expand its spent fuel pools' storage capacity by reracking . In its September 11, 1987, ID, the Licensing Board considered each of the I l
Sierra Club's contentions that had been admitted for litigation and deter-mined that none of the contentions was meritorious. The Licensing ;
Board, therefore, authorized the Director, Office ~ of Nuclear Reactor Regulation, to issue to the Applicant the .rLequested amendments. For the reasons discussed below, the Staff opposss the Sierra Club's appeal and urges that the decisions of the Licensing Board be affirmed.
II. BACKGROUND On October 30, 1985, the Applicant requested amendments authoriz-ing it to increase the spent fuel pool storage capacity from 270 to 1324 storage locations for each unit, by reracking the spent fuel pools with a combination of high-density, free-standing poisoned racks and nonpoisoned racks in a two-region arrangement. On January 13, 1986, the Commission published in the Federal Register its notice of "Considera-tion of Issuance of Amendments to Facility Operating Licenses DPR-80 and DPR-82 for Diablo Canyon Power Plant, Units 1 and 2, Respectively, and Proposed No Significant Hazards Consideration Determination and Opportu-nity for Hearing." 51 Fed. Reg. 1451. In this notice the Commission made the following determination:
On the basis of the foregoing discussion of the elements of 10 C.F.R. 50.92 and because the proposed reracking technol-ogy has been well developed and demonstrated, the Commis-slon proposes to determine that operation of the facility in accordance with the proposed amendment does not involve a significant hazards consideration. ,ld. at 1455.
l In response to the above Commission notice, separate comments, re-1 quests for a hearing and petitions for leave to intervene were filed by
~ ._. _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ -
the Sierra Club, Mothers for Peace and the Consumers Organized for De-fense of Environmental Safety (CODES). An Atomic Safety and Licensing Board was established on February 21, 1986, to hear argument and to .
consider the petitions for leave to intervene.
in a Memorandum and Order issued on March [8,1986, the Licensing Board admitted the Mothers for Peace as: party to the proceeding sub-ject to the subsequent submission and acceptance of at least one conten-tion. The Licensing Board therein initially denied the petitions filed by the Sierra Club and CODES subject to reconsideration upon the filing of amended petitions and the submission and acceptance of at least one con-ter. tion . Thereafter, timely amended petitions, including proposed con-tentions, were filed by the Sierra Club and CODES: proposed contentions were also timely filed by the Mothers for Peace.
On May 13,1986, a prehearing conference was held to consider the respective petitions and proposed contentions. On June 27, 1986, 3_/ the 3/
In accordance with 10 C.F.R. 9 50.91, the Commission, on May 30, 1986, approved the proposed amendments on the basis of its Safety Evaluation and made them immediately effective, prior to any hearing on the proposed amendments, having made a final determination that ,
the proposed action involved no significant hazards consideration. )
51 Fed. Reg. 20,725 (June 6,1986). An Environmental Assessment supporting the license amendment, which found that the amendment entailed no significant environmental impacts, had also been issued on May 21, 1986, and notice thereof given in the Federal Register.
51 Fed. Reg. 19,2130 (May 29,1986).
On June 16, 1986 the Interveners Mothers for Peace and Sierra Club jointly filed an Appilcation for a Stay of the Commission's May 30th i action amending the license. Two days later, on June 18, both the )
Licensing Board and the Appeal Board dismissed the interveners' stay request. On June 19, the Commission denied Interveners' re-quest for expedited consideration of their stay application and set I
(FOOTNOTE CONTINUED ON NEXT PAGE)
- ._____-__A
_4-Licensing ; Board issued a Memorandum and Order, LBP-86-21, 23 NRC 849 (1986), admitting both the Sierra Club and CODES as parties to the pro-ceeding and ruling on contentions; at least one good contention was found
~
to have been - submitted by each intervenor. U k ; comp!ete list of all (FOOTNOTE CONTINUED FROM PREVIOUS 'PAGE) down a briefing schedule for responses. Also on June 19, 1986, the interveners filed Emergency Motions and a Petition for Review before U.S. Court of Appeals for the Ninth' Circuit. On July 2,1986, the Court, after briefs and oral argument, granted a partial stay and ordered expedited consideration of the interveners' petition for re-view . On July 22, 1986, the Commission denied Interveners' applica-tion for a stay except to the extent that it prohibited the Licensee ,
from storing more than 270 spent fuel assemblies in either of the <
spent . fuel pools and subject to those restrictions previously imposed by the Court of Appeals. CL1-86-12, 24 NRC 1 (1986).
On September 11, 1986, the Court issued an Order that concluded:
The NRC failed to comply with its own regulations in denying petitioners a hearing prior to making the Diablo Canyon reracking license amendments effective. Accord-ingly, the existing stay of those amendments is contin-ued. PGSE shall not deposit any spent fuel rods in the pool for Unit 1 and shall not rerack the pool for Unit 2 until hearings have been held in compliance with the requirements of the Atomic Energy Act. 799 F.2d 1268 (9th Cir. 1986); dissent, 804 F.2d 523 (9th Cir.1986).
On September 16, 1986, Interveners Sierra Club and Mothers for Peace jointly sought a further stay from the Commission.
See, interveners' Application for an Order Prohibiting Onsite 5iorage of Radioactive Spent Fuel at Unit 1, Diablo Canyon and for Public Hearings, dated September 16, 1986. The Commission directed that this request be treated as a petition for enforcement action pursuant to 10 C.F.R. 6 2.206, to be resolved expeditiously by the Staff and declined to issue the emergency stay sought. Order dated September 18, 1986 (unpubilshed) . This matter was appropriately resolved by the Staff outside the hearing process.
-4/ Although invited by the Board's June 27 Memorandum and Order, LB P-86-21, supra , 23 NRC at 873, no party sought to invoke the .
hybrid hearing procedures provided in 10 C.F.R. 6 2.1101 et seq. !
- . _ - _ _ _ - _ _ _ _ _ _ _ - _ _ _ _ - _ 2
contentions admitted by the Board is appended to that Memorandum and Order as Appendix A.
As a consequence ef discovery disputes, the schedule established in y .
the August 28, Memorandum and Order was modified by the Licensing Board in a Memorandum and Order issued on December 1,1966, to permit some additional discovery and to providej for the commencement of the hearing on February 2, 1987. 5 On De'cember 15, Interveners Mothers for Peace SI and the Sierra Club filed a joint motion for summary disposition before the Licensing Board b alleging that, as a matter of law, the license amendment sought must be denied because the Staff failed to file an environmental impact statement and because the amendment re-quest failed to comply with the Commission's requirements, specifically the Standard Review Pla n , .N U R E G-0800. Following the submission of an-swers by the Staff and the Applicant in accordance with the Board's
~5/ On December 10, 1986, CODES filed a statement with the Board indi-cating that it would no longer participate in the proceeding.
6/
Subsequently, on January 13, 1987, the Intervenor Motherr, for Peace filed a statement with the Board indicating that it would no longer participate the proceeding.
-7/ Also on December 15, 1986, Interveners filed a Motion to Allow Filing of Summary Disposition Motion and for Reinstatement of Original Schedule, with the Atomic Safet'y and Licensing Appeal Board, prem-ised on their interpretation of the Licensing Board's December 1 Memorandum and Order as foreclosing the opportunity to file a mo-tion for summary disposition. Interveners therein requested that they be permitted to flie such motion and that the schedule originally established by the Licensing Board's August 28, 1986 Memorandum and Order be reinstated. in a Memorandum and Order issued on December 19, 1986 (unpublished), the Appeal Board denied Interve-nors' Motion, observing that there was no reason to believe that the Licensing Board would reject their motion for summary disposition out of hand and until the Licensing Board had acted, their motion l was premature.
l l
f L_________
L January 2, 1987 Memorandum and Order, 8_/ the Licensing Board, in a Memorandum and Order dated January 28, 1987, denied the motion for summary disposition. SI- ,,
On February 23,1987, the Staff informed the Board that, as a con-sequence of recent developments regarding its' evaluation of multi-rack impacts (raised initially by Brookhaven National Laboratory as concerns in the context of the review of Commonwealth Edison Company's application to rerack the: Byron facility's spent fuel _ pool), it would be necessary to consider .the impact of this information on its proposed testimony and therefore, Staff would be unable to file its testimony on February 24,.
1987, as required and would be unable to present testimony on this mat-ter at the hearing commencinq on March 9. The Board agreed to delay the start of the hearing and to extend discovery so that the parties could consider these recent developments. Thereafter, following a conference call among the Board and . parties on April 8, the Licensing Board, in a Memorandum and Order issued on April 9,1987, ordered discovery to end on May 27, and the hearing to start on June 16, 1987. b
-8/ See, NRC Staff Answer in Opposition to Sierra Club / Mothers for Pesce Motion for Summary Disposition, dated January 15,1987, and, Answer of Pacific Gas and Electric Company in Opposition to Motion for Summary Disposition, dated January 14, 1987.
-9/ In its Memorandum and Order the Licensing Board also accepted the withdrawal of CODES and Mothers for Peace from the proceeding and dismissed their remaining contentions. The Licensing Board also granted the Sierra Club's January 13, 1987 motion for continuance of the hearing, setting March 9, 1987, as the new date for its commencement.
10/ The Licens!ng Board also provided that limited appearance state-ments , pursuant to 10 C.F.R. 6 2.715, would be received on June 15,1987.
L_-________-__-
A hearing on the Sierra Club's contentions SI was held as ordared on June 16-18, 1987, E at Avila Beach, California. On June 16, 1987, the first day. of the hearing, the Sierra Club oraliy poved for the admis-q, ' .*
sion of a new contention regarding the possibilltf, of zircaloy cladding
- fires in the Diablo Canyon spent fuel pools and also. moved the Licensing Board to direct the preparation by the $taff of an EIS on the matter.
Tr . 142-140. The basis for the Sierra Club's motion was the draft report prepa ed by the Brookhaven National Laboratory (BNL) entitled "Beyond Design-Basis Accidents in Spent Fuel Pools (Generic Issue 82)." E Sierra Club Ex.1, for identification only. The Licensing Board, after hearing the arguments of the Applicant and the Staff in opposition to the motion, Tr. 150-160, and without ruling on the oral motion, directed the Sierra Club to file a written motion in support of its contention.
Tr. 291, 630.
1 The Sierra Club filed its written motion on June 29, 1987, the Appli-cant and the Staff separately ' o~pposed the motion and, as noted
-11/ Sierra Club Contentions 1(A)1,1(A)2, f(A)5 and f(A)6, were volun-tarily withdrawn by the Sierra Club by their Report to the Board 1 dated August 15, 1986, and were not further considered in this pro-ceeding. Contention 1(B)9 was voluntarily withdrawn by the Sierra j Club at the hearing. Tr. 174. In light of this, the Staff's testimo-ny on this contention was withdrawn (Tr. 512). <
12/ On June 15, 1987, the Board received oral and written limited ap-pearance statements from interested Individuals in accordance with 10 C.F.R. 5 2.715(a). Tr. 1 -13. Additional written statements 1 were invited by the Board. Tr. 62A. I
-13/ On March 27, 1987, the Staff issued a Board Notification, BN 87-05, transmitting to the Commission, as a matter of possibly substantial public, press or Congressional interest, the draft BNL report along (FOOTNOTE CONTINUED ON NEXT PAGE) l
earlier, U the Licensing Board, on September 2,1987, denied the Sierra Club's late-filed. contention on zircaloy cladding fires and its request that the Staff be directed to prepare an EIS. Basically, the Licensing Board rejected the late-filed contention because .it was nott, set forth with a rea-sonable basis and specificity as required by the , Rules of Practice. EI In its Order, the Licensing Board deterjined . that it could not find a nexus by which the contention might establish a specifically stated basis.
Because of the Sierra Club's failure to plead an adequate, . specifically stated basis for its contention, the Licensing Board denied the contention and did not address whether the contention also satisfied the requirements for a late-filed contention. E On September 11, 1987, the Licensing Board issued its ID E and, as noted above, determined that none of the Sierra Club's admitted con-tentions was supported by the evidence in this proceeding. The Licens-ing Board, therefore, authorized the Director, Office of Nuclear Reactor Regulation, to issue the requested license amendments. Subsequently, the Sierra Club, in a series of pleadings, moved the Appeal Board for, (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
- with the Staff's preliminary assessment of the draft report and its relation, if any, to ongoing NRC proceedings. Copies of the Board Notification were transmitted to the parties to this proceeding.
14,/ See, fn.1, supra.
15/ 10 C.F.R. 9 2.714(b) .
,1_6 6 / Order, supra, slip op. at 11-12.
E/ See, fn. 2, supra. l I
Lh_ _ W __ _ _ _ _ _ _ _ - _ ___
inter alla, a . stay of the effectiveness of the ID. 18/ After the submission of briefs in opposition to the stay request by the Applicant and the Staff, the Appeal Board denied the Sierra Club's motion for ,
stay' 1 The Appeal Board said that, although it might be persuaded otherwise on a full briefing of its appeal, it was' not satisfied that the i Sierra Club was, inter alla, likely to p evail on the merits or that it would suffer irreparable injury in the absence of.the requested stay. EI The Sierra Club's brief in supoort of its appeal of the Licensing Board's Memorandum and Order of September 2,1987 and the September 11, 1987 ID was filed on October 26, 1987. The Pacific Gas and Electric Compa-ny's brief in opposition to the Sierra Club's appeal was filed on November 25, 1987.
Ill. DISCUSSION With the exception of its argument on alternatives (Appeal Brief at 23-25) the Sierra Club's appeal is predicated in large part on its denied, late-filed contention regarding the possibility of zircaloy cladding fires in spent fuel pools that have somehow lost all of their cooling water. The 18/ in addition to its request for a stay, the Sierra Club separately not-
. ed its intent to appeal the ID and the September 2, 1987, Order denying its late filed contention. With regard to the late filed con-tention, the Appeal Board in ALAB-873, 26 NRC (September 18,
. 1987) noted that the Sierra Club's appeal of the Order was not per-mitted under 10 C.F.R. 6 2.714(a) because interlocutory appeals are not generally permitted. However, the Appeal Board, in ALAB-873, noted that the Order would be subject to challenge should the Sierra Club elect to appeal the Licensing Board's September 11, 1987, ID.
1,9 9 / ALAB-877, 26 NRC (October 8,1987), Slip op.
20/ ld. at 12-13.
q l
)
I basis for this scenario is found in the draft BNL Report. UI in other words, the Sierra Club has not appealed the findings and conclusions of the Licensing Board, as set forth in its ID of September 11,1987, that
. t.
determined that the proposed racks for the Diablo; Canyon spent fuel pools meet or exceed the applicable NRC requir'emerits and, further, that the proposed racks will adequately protec,k the health and safety of the public particularly with regard to the expected velocity and displacement of the spent fuel pools and the racks during a postulated Hosgri earthquake. EI in its presentations to the Licensing Board , the Sierra Club did not challenge the integrity of the Diablo Canyon spent 1 fuel pools, made no offers of proof, nor did it produce evidence to sup-port its allegations on appeal that the pools would lose their cooling wa-ter. In addition, there is no other evidence in this proceeding to support the proposition that the Diablo Canyon spent fuel pools could lose all of their cooling water. Yet, as the Appeal Board pointed out, and as discussed below, such a premise must be shown in order to meet the ba-sis and specificity requirements for Sierra Club's denied contention. EI 21/ In July 1987, the BNL Report was issued in its final form as NUREG/CR-4982. Copies of NUREG/CR-4982 were distributed to the Boards and parties to this proceeding. Although the final version of the BNL Report is similar to the draft report in many respects, there are some differences that are applicable to this proceeding.
Because the Sierra Club continues to rely selectively and exclusively on the draft report, the Staff will point out those differences below as it responds to the Sierra Club's allegations. Staff notes that the !
final BNL Report still agrees with the Staff's classification of this matter as a medium priority item in connection with further research.
2 2_2 / ID at 59-60, slip op.
23/ ALAB-877 at 9, slip op.
1._m___. _ _ _ _ . _ , . _ _ _ . _ _ ____________..__.__________________-s
1 l
l Further, as noted above, the Licensing Board clearly found evidence to the contrary. E Sierra Club's allegations are addressed in the order that they appear in its appeal brief. ,
j
. p -
A. The Sierra Club's Late-Filed Zircaloy Cladding Fire Contention Was Properly Denied By The Licensing Board
- 1. Nexus, Specificity, Rasis O
in Gulf States, 25/ the Appeal Board held that where the issue involved is generic, a nexus must be established between the generic issue and the requested amendment. Sierra Club has failed to establish any nexus between the draft BNL Report and the requested amend-ment. - In addition, the Appeal Board in ALAB-877, b ndicated i that even if nexus was established the Sierra Club's late-filed contention would still not be a matter for consideration in this proceeding. f In its Order of September 2,1987, denying the proposed late-filed contention, the Licensing Board found a lack of nexus, by which the late-filed contention might establish a specifically stated basis between the late-filed contention and the draft BNL Report. 2_8/ The Licensing Board determined:
I l
24/ See, fn. 22, supra.
-25/ Gulf States Utilities (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 773 (1977).
-26/ In ALAB-877, the Appeal Board determined that the Licensing Board's conclusion on nexus is of dubious correctness, at 8-9, slip op.
E/ ALAB-877 at 9-10, slip op.
_28/ Order at 10-12, slip op.
I
l l 1 Beyond the very general observation that they are both PWRs, the Sierra Club offers no comparisons or data of any kind to suggest any similarities between the two reactors, particularly their spent fuel pools. Conse-quently, there is no link shown between the very gener-ic conclusions drawn in the BNL Re' p ort from the -
theoretical, computer model based on the / older Ginna reactor and the high density reracking, proposed for Diablo Canyon. In fact, the report Warns. against draw-Ing specific conclusions as sto individual reactors throughout its length, a Given these caveats, the very broad based recommenda-tions and conclusions in the Report, the lack of any evidence or reasoning to connect a generic report with the specific configuration at Diablo Canyon, and the ab- q sence of any suggestion of an accident initiator, we can 1 find no nexus by which the contention might establish a specifically stated basis. Therefore, we must conclude that the contention proffered lacks the requisite basis and may not be admitted to this proceeding under 10 C.F.R. 9 2.714. (citation omitted) Order at 11-12, slip op. (emphasis added).
On appeal, the Sierra Club asserts that, contrary to the determination of the Licensing Board, it has indeed established a nexus between the draft BNL Report and the proposed reracking and that such nexus forms the required specificity and basis for its contention. Appeal F,rief at 6.
Sierra Club's simplistic characterization of the generic conclusions of the 1
draft BNL Report is not sufficient to establish a nexus between that Re- l port and its proposed contention. To provide specificity Sierra Club
'1 points to references in the draft BNL Report which involve the probabili-ty of a cask drop leading to a loss of pool water. Appeal Brief at 8, 21-22. These references are based on the Reactor Safety Study ,
l
( N U REG-75 /014 ) , another generic study which is not specifically related to the Diablo Canyon design. Its late-filed contention, therefore, lacks I
I l
l
L ,
! . I the requisite specifically stated ~ basis and was properly not admitted in this proceeding by the Licensing Board. i At page 21 of its brief, Sierra Club candidly admits, "No factu-al basis yet exists which can be used to establish the; exact probability of
, a zircaloy cladding fire resulting in a radioactive release from Diablo Can- ,
yon." Sierra Club's view of nexus, how ver, is that the draft BNL Re-port clearly establishes that "zircaloy fires represent real and present danger to public health and safety at plants using high density spent fuel racks." Appeal Brief at 12. Therefore, since Diablo Canyon has high density spent fuel racks, Sierra Club believes there to be a sufficient nexus- to support its. contention. To respond to the Licensing Board's rejection of this theory on the grounds that no credible loss of water scenario had been postulated, Sierra Club argues that the draft BNL Re-port identifies seven scenarios for water loss in PWRs based on "surro-gate" plants which are chosen because of their value for use in specific cases. However, the Licensing Board's use of the surrogate plant (Ginna) is objected to by Sierra Club as an attempt to judge the conten-tion on its merits rather than on its admissibility. Appeal Brief at 10,
- 13. Consequently, Sierra Club is in essence taking the position that it need not develop a specific, credible loss of water scenario for Diablo
. Canyon at the contention threshold and that any attempt to argue that there is not such a scenario should be rejected as reaching the merits.
This position essentially renders the nexus test established by the Appeal Board in ALAB-877, a nullity. Such an interpretation should be rejected.
The Sierra Club argues at pages 7-8 of its Appeal Brief that the draft BNL Report concludes (at S-6) that the risk potential of beyond 4
.t.**.J
l l l
[ design basis accidents in spent fuel pools is equivalent to present risk 1
estimates for core melt accidents, and that in some respects a spent fuel pool accident could be much worse than a reactor c, ore melt accident. By calling attention to these " facts," the Sierra Club maintains it has satis-fled the nexus requirement. Appeal Brief atj 8,' 11, 12. However, in commenting on the probability of a claddl.k fire being equivalent to that of a core melt accident, the draft BNL Report indicates that while the risks are similar, the consequences of each accident due to different source terms of fuel in a reactor core and spent fuel in a storage pool are dissimilar. Draft BNL Report at S-6. Therefore, it is difficult to make such a comparison. In any event, that portion of the draft BNL Report commenting on similarities between core melt and spent fuel pool accidents has been eliminated from the final BNL Report. Sierra Club's assertions regarding risk estimates for spent fuel pool accidents being equivalent to risk estimates for core melt accidents is based upon a su-perseded draft document which addressed generic issues. Sierra Club failed to relate any of these matters specifically to the Diablo Canyon amendment in question. ,
Similarly, the Sierra Club's allegations concerning a cask drop leading to a significant loss of pool water is inaccurate. See, draft BNL Report at 2-29. Sierra Club notes E that the chances of such an accident are three in 100,000 per reactor year and, given Diablo Canyon's two spent fuel pools, the chances thereby increase to six in 100,000 per reactor year. Appeal Brief at 8-9. The Sierra Club concludes that, giv-M/ Citing the Appeal Board in ALAB-877, at 9-10, slip op.
l l
L i
en these estimates, such an event cannot be considered remote and spec-ulative. The Sierra Club's figures . do not reflect the latest available i: Information. The final . version of the BNL Report points out that due to ,
l .
implementation of NRC suggested improvements in cask handling, the esti-
~
mate of risk of a cladding fire has changed from t'hree out of 100,000 per i
l- reactor year to less than two out of 100,tIDO,000 per reactor year. See, NUREG/CR-4982 at 38. Thus, the likelihood that such an event, as re-lied upon by the Sierra Club, will occur is now considered to be even more remote and speculative than originally considered.
The Sierra Club also places great reliance upon the fact that two of the BNL Report's authors have recommended in an appendix to the report against the storage of newly discharged spent fuel in high density racks to establish a nexus to this proceeding. Appeal Brief at 8-9,11.
As explained below, this reliance is misplaced. Appendix B to the draft BNL Report is a memorandum dated August 27, 1986, from two of the report's authors that concludes with two recommendations. As noted above, the memorandum recommends against the storage of spent fuel in high density racks until it has been stored for two or more years in the i
old style cylindrical racks. Draft BNL Report, Appendix B, at 3. The Sierra Club presented this argument to the Licensing Board in its motion j 1
to admit its late-filed contention and to the Appeal Board in its request
]
for a stay. Both Boards have rejected this argument. b The Licensing 1
Board noted that the recommendations are not contained in the draft Re- )
i port, but are in a supporting document, an appendix to the draft Report, 3_0 / Order at 9, slip op.; ALAB-877 at 12,13, fn. 24, slip op.
l and subject to all of the draft Report's disclaimers and caveats; the Ap-peal Board noted that, in its view, the recommendation was not founded ,
on an express belief that the use of such high de,nsity racks would im- ,
pose an undue threat to the public health and saf th. b The Appeal Board noted further that:
4
... In this connection, it appsars that the recommen-dation 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 sub-stantially 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. ALAB-877 at 13, fn. 214, :.llp op.
The Sierra Club characterizes the above analysis by the Appeal Board as being an unsupported assertion and states that in its view the recommen-dation was prompted because the authors view the disclosures in the draft BNL Report as representing a significant risk. Appeal Brief at 9. TN Sierra Club's views on this point are unsupported by the draft B .t Report.
Fittally, the Sierra Club notes that of the several accident-initiating events postulated in the draft BNL Report (at S-fi) as possibly leading to a loss of coolant in spent fuel pools, the structural failure of spent fuel pools due to a seismic event is considered to be a dominant cause. Appeal Brief at 9. The Sierra Club then states that
, because the Diablo Canyon facility has an unusually high risk of undergo-ing a severe seismic event due to its location close to an active fault zone, there is a specific nexus between the draft BNL Report and this l 31/ Id.
I l
l
h
,. s
[
I-proceeding. M. at 9, 12 13. In making this allegation the Sierra Club completely ignores two very important factors.
First, the Sierra Club at the recent hearing on this matter did .
not dispute the fact that the Diablo Canyon ' spent fuel pools were de-signed and were determined by a Licensing Board 'to be able to withstand the current design basis earthquake for th facility. 3_2/ The Sierra Club
'does not challenge on appeal any of the , findings and conclusions of the Licensing Board regarding the safety and integrity of the racks and spent fuel pools. Equally important, there has been no acceptable con-tention proffered in this proceeding postulating the loss of coolant from the spent fuel pools resulting from a seismic event or for that matter any other designated initiating event discussed in the draft BNL Report. As such, the Sierra Club's bald assertions about nexus to the draft BNL Report being established simply because of the location of the Diablo Can-yon facility are without merit.
Second, the Sierra Club's assertions concerning seismic risk because of the location of the Diablo Canyon facility ignore the record evidence of this proceeding. The NRC regulations require that a nuclear plant be designed and constructed to withstand the most severe earth-quakes expected to occur at the site. 3_3 / After extensive licensing hearings on the subject matter, the safe shutdown earthquake (SSE) for
, Diablo Canyon was determined to be of a magnitude of 7.5 for an earth-1 l
3_2 2 / ID at 59-60, slip op.
33/ See, Pacific Cas and Electric Co. (Diablo Canyon Nuclear Power PTant, Units 1 and 2), ALAB-644,13 NRC 903, 911 (1981).
. quake originating from the Hosgri fault. EI As noted above, the Sierra Club has never challenged the adequacy of the SSE for Diablo Canyon.
Nor has the Sierra Club challenged .the Staff's Safety Evtluation (NRC Staff Exhibit 1) where the Staff concludes at pageN -14 that the Diablo Canyon spent fuel pools and the proposed spent fuel racks satisfy all of the rec. Ired NRC criteria. Therefore, Sierra Club's bare assertions that y
because the Diablo Canyon facility is located in an active seismic area there is automatically a nexus with the draft BN'L Report ignore the record evi-dence in this proceeding. Staff submits that nexus and thereby the req-uisite specificity is not established merely by referencing the location of the Diablo Canyon facility, in sum, nexus, specificity and basis, found to be lacking by the Licensing Board in its Order of September 2,1987, have not been established by the Sierra Club on its appeal. ,
Consequently, the Sierra Club has failed to provide an adequate explanation of why there is a reasonabic possibility that the Diablo Can-yon spent fuel pools will lose enough water to create the possibility of the fuel cladding fire scenario discussed in the draft BNL Report. As noted earlier, E the Appeal Board in ALAB-877 specifically pointed out this omission to the Sierra Club when it determined:
Neither the contention nor the basis assigned for it con-tains 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 ap-pears to have been required to meet the basis and speci-34/ Id., see also, LBP-79-26,10 NRC 453, 484 (1979).
35/ See (n. 23, supra.
l 1
l l
L________________._____
ficity requirements for contentions. ALAB-877 at 9, slip op.
In spite of this clear notice by the Appeal Board in ALAB-877, the Sierra
. . ./ '
Club still has not provided the adequate explanatI50 the Appeal Board said was required to meet the basis and specificity requirements for con-tentions. Most certainly the Sierra Clubts efforts concerning nexus as
?
described above do not provide the necessary explanation. On this basis the Sierra Club's appeal should be denied.'
- 2. The Requirements For Admission As A Late-filed Contention Have Not Been Satisfied As noted cariier, the Licensing Board, in its Order of September 2,1987, determined the Sierra Club's late-filed contention was inadmissible because it lacked the requisite nexus, specificity and basis.
Therefore, the Licensing Board did not address whether the contention satisfied the Commission's regulations governing the submission of late-flied contentions as set forth in 10 C.F.R. 5 2.714. b Even if the Appeal Board were to disagree with the Licensing Board on the nexus, specificity and basis issue, however, the Sierra Club's contention does not meet the Commission's regulations concerning late-filed contentions and should be dismissed on this basis as well.
Acceptance or rejection of nontimely filings, including late-filed contentions and late-filed amendments to admitted contentions, is con-trolled by the five factors set forth in 10 C.F.R. 6 2.714(a)(1). Those factors include:
(i) Good cause, if any, for failure to file on time.
36/ Order at 15, slip op.
(li) The availability of other means whereby the pet l-ticner's interest wiIi be protected.
(iii) The extent to which the petitioner's participation nuy reasonably be expected to assist in developing a sound record. 1 (iv) The extent to which the petitioner's Inkerest will be represented by existing parties..
(v) The extent to which the petitioner's participation will brcaden the issues or ifelay the proceeding, it is well established in NRC . case law that the first factor, good cause for failure to file on time, is the most significant of the five factors . If the proponent of a contention fails to satisfy this element it mu st make a compelling showing with regard to the other four factors, b (1) Good Cause in regard to this factor, the Sierra Club argues, as it did to the Licensing Board, that it could not have responded earlier because it did not receive a copy of the Report with the Staff's Board Notifica-tion. Appeal Brief at 14-15. As noted earlier herein, the Staff issued Board Notification 87-05 regarding the draft BNL Report on March 27, 1987. The Sierra Club maintains that it was misled because of statements in the Board Notification that the draft BNL Report does not pertain directly to current ongoing licensing efforts for spent fuel pool expansion amendment requests by utilities including hearings." id. at 14-15.
-37/ Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 244 (1986); See also, Texas Utilities Electric Co. et al. (Comanche Peak Steam Electric Station, Unit 1),
A LA B-868, NRC (June 30,1987, slip op. at 13).
The Sierra Club's selective characterization of the Board Notification ignores the reasonable and adequate articulation of the subject matter and conclusions of the draft report as they.. relate to the potential x -
for beyond design-basis accidents in spent fuel phold as a result of the
- catastrophic failure of the pool as a consequence' bf, inter alla, seismic events and cask drops. As noted above: there is no issue in this pro-ceeding which is related to the possibility of pool failure.
Conterition 1(B(7), the only admitted contention that the Sierra Club points to, raises only the adequacy of the environmental consideration given to two specifically identified alternatives to the Applicant's rerack proposal and does not contemplate the unbounded consideration of envi-ronmental impacts and alternatives that the Sierra Club suggests.
A brief review of the Sierra Club's other contentions, ad-mitted or rejected, shows that the statements with regard to Diablo Can-yon in the Board Notification are accurate. Contention f(B)5, which was not admitted, was rejected by the Licensing Board because it is subsumed by Contention ll(A)3. Memorandum and Order of June 27, 1986, l
LBP-86-21, 23 NRC 849, 863 (1986). Admitted Contention II(A)3 is con-cerned only with the possibility that, during the postulated Hosgri earth-quake, there w.ould be collisions between the racks and pool walls that might cause "significant permanent deformation and other damage to the racks." Id. at 864-865. The draft Report's relationship to rejected Contention f(B)5, which deals with welds, materials and structural ele- ,
1 ments, thus is evident; however, rejected Contention 1(B)5 does not in-clude pool failure, as addressed in the draft BNL Report.
l l
1
Rejected Contention 1(B)3, while referring to the possible loss of pool cooling capacity, was intended to focus on the free standing nature of the new high density racks: it was suggested that, because of f
the rack design, the racks could collide during a selsmic event causing damage to the pool. See, Transcript of Prehearing.C,onference of May 13, 1986 at 85, 89. The rejected contention 15d nothing to do with pool fali-3 ure directly induced by a scismic event th'at then might have an effect on the spent -fuel, as discussed in the draft BNL Report.
in view of the very clear language of the admitted conten-tions, the statement in the Board Notification regarding the absence of any connection between the report and an admitted contention was wholly accurate. Furthermore, the draft report has no bearing on either of the rejected contentions, which might otherwise warrant their reconsideration.
The Sierra Club's argument that its failure to receive a copy of the draft report together with the Board Notification provides good cause for its failure to timely seek to file a new contention likewise
'is not compelling. Appeal Brief at 183-15. Clearly, it was Staff's inten-tion that the draft report be appended to the Board Notification and that it was in fact appended as the language of the Board Notification sug-gests. Irrespective of whether the draft report was appended to the Doard Notification, the language of the Board Notification itself (which I the Sierra Club acknowledges it received by early April: Declaration of Edwin F. Lowry at 1) was more than adequate in identifying the nature, content and conclusions of the draft report, and sufficient, at a minimum, to have caused anyone reading it and desiring to know more to request a copy of the draft report itself. To suggest that, if read in its entirety,
the Board Notification would have lulled a party situated as the Sierra Club, in opposition to the rerack proposal, into the placid acceptance of the Staff's preliminary views strains credulity. That the Sierra Club apparently was content to sit and wait more than t , months before act-ing on this information does not constitute good cause.
(11) Availability of Other Means Whereby Petitioner's Interest Will Be Protected P With regard to the second . factor, the Sierra Cl a briefly asserts that the only means available is to bring the matter before the Licensing Board is this proceeding. Appeal Drief at 16. The Staff does not agree. It is well settled that, while all public health and safety and environmental matters relevant to a particular licensing action must be resolved before a licensing action is taken, in an amendment proceeding such as this, only those matters placed in controversy need be decided i
by the presiding Board and those matters which are not in controversy are to be decided by the Staff. 38/ -
The issues raised by the draft BNL Report are no different. Particularly in light of the Sierra Club's failure to show good cause, its burden with respect to the other factors regard-ing late filings is greater. EI Therefore, with regard to this factor, the
, 3_8 / Southern California Edison Co. , et al. (San Onofre Nuclear Generat-ing Station, Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982);
See also, Portland General Electric Company et al. (Trojan Nuclear Plant) A LA B-534, 9 NRC 287, 289, fn. 6, (1979); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), A LA B-739 18 NRC 335, 339, (1983); 10 C.F.R. 6 2.760a.
39/ Compare, Comanche Peak, supra, slip op. at 18 ("once the interve-nors satisfactorily explained the lateness of their contention, a much lesser showing on the other four factors is required in order for them to prevail.")
Sierra Club has failed to establish why any interest it might have in this issue requires litigation as opposed to resolution by the Staff outside the formal adjudicatory process, it is notable, with respect to this factor, that th4 Sierra Club has not ' made the requisite showing regarding the
~
. third factor, discussed below, from which one mlght possibly discern such need to protect its interest in this mannerjh (iii) The Extent To Which The Petitioner's Participation May Reasonably Be Expected To Assist in Developing A Sound Record With regard to this factor, the Sierra Club's contentions consist of essentially nothing more than the bare assertion that it is the only intervenor in this proceeding, has conducted itself responsibly and "can only further the development of a sound record on the safety of the proposed action." Appeal Brief at 16. As the Commission has deter-mined, however, more than this is required:
Our case law establishes both the importance of this third factor in the evaluation of late-filed conten-tions and the necessity of the moving party to dem- !
onstrate that it has special expertise on the subject which it seeks to raise. Grand Gulf, supra , 16 NRC at 1730. The Appeal Board has said: "When ,
a petitioner addresses this criterion it should set j out with as much particularity as possible the pre- l cise issues it plans to cover, identify its prospec- l tive witnesses, and summarize their propo testimony. " Braidwood, supra, 23 NRC at 246. g
~
40/' The recent Appeal Board decision in Comanche Peak, supra , is inapposite, in Comanche Peak, the Appeal Board distinguished the situation in Braidwood, noting that the Licensing Board appropriately credited the contribution of interveners' counsel, as opposed to the possible contribution of witnesses or other technical expertise, in light of the non-technical nature of the issue involved, good cause for a construction permit extension. See, Comanche Peak, slip op.
at 19-25. By contrast, the issue the STe7ra Club here seeks to raise ;
is highly technical in nature. !
l i
The Sierra Club has failed to provide any of the foregoing information regarding the particulars of its possible contribution in its Appeal Brief and thus, has not satisfied this factor.
(iv) The Extent To Which Petitioner's interest Will Be Represented By Existing Parties This factor weighs in favor of the Sierra Club.
P
~
(v) The Extent To Which Petitioner's Participation Will Brcaden The issue Or Delay The Proceeding The Sierra Club did not comment on this factor in its Ap-pea! Brief. However, with regard to this factor, it is clear that litigation of such a wholly new issue would broaden the issues and would cause delay as a result of the likely discovery requests and additional hearing time that would be required. That the contention belatedly being pro-posed may be viewed by the Sierra Club to be significant is not a matter properly considered in the context of this fcctor, but rather in connec-tion with tho third factor. EI But, as discussed above, the Sierra Club's demonstration on the third factor is clearly deficient.
In sum, the Sierra Club has failed to demonstrate that a balancing of the five factors set forth in 10 C.F.R. 6 2.714(a)(1) war-rants the admission of its late-filed contention.
B. An EIS is Not Required For This License Amendment The Sierra Club's contention that the National Environmental Policy Act (NEPA) requires the Commission to prepare an EIS for the instant M/ Braidwood, supra, 23 NRC at 248.
amendment is predicated upon the Sierra Club's showing of a sufficient nexus between the draft BNL Report and the Diablo Canyon spent fuel pool reracking emendment, the Staff's failure to adhere to the Commis-
, v -
sion's regulations implementing NEPA as found in 10 C.F.R. Part 51 and
. .the Licensing Board's misinterpretation of the Appeal Board's recent Vermont Ynnkee decisions. - See, generally, Appeal Brief at 17-24.
None of the above arguments by the Sierra Club is supported by the record in this matter, the Commission's rules on the implementation of NEPA in its licensing proceedings or a correct interpretation of the two Appeal Board decisions involving the Vermont Yankee spent fuel pools. b While the Sierra Club's assertion that the National Environmental l
Policy Act requires all federal agencies to prepare an EIS anelyzing possi-ble environmental effects before undertaking any major federal action that may significantly affect the environment (Appeal Brief at 17, et seq.) may be a correct statement in and of itself, in this proceeding the NEPA man-date has been satisfied by the Staff's environmental assessments. See, eg. , Staff's Exhibit 2, Environmental Assessment, irrespective of the Sierra Club's citation to numerous NEPA regulations and case citations the Sierra Club has failed to establish that the Staff did not adhere to the i
. 42/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Pow-
~
er Station), ALAB-869, 26 NRC (July 22, 1987) slip op.; recon-sideration den'd. , ALAB-876, 26 f7RC (October 2,1987) slip op.
--43/ The Sierra Club's efforts (and failure) to establish a nexus between the draft BNL Report and the instant Diablo Canyon license amend-ment proceeding is discussed earlier herein and will not be repeated here.
Commission's regulations implementing NEPA, as found in 10 C.F.R. Part 51, which govern Staff reviews.
As a general matter, an EIS is not required unless it is found that
., [
li the environmental impacts attributable to a particular f censing action may be significant, b in this proceeding, the Staff, based upon its environmental assessment, concluded that the environmental impacts associated with the Licensee's proposed reracking of 'ts spent fuel pools are not significant. Staff Exhibit 2, at 11-12. The Licensing Board agreed with the Staff's conclusions. $ Thus, under the Commission's regulations implementing NEPA (10 C.F.R. 65 51.30 .33) the Staff, in its EA and Supplemental EA considered and found the environmental impacts of the proposed action to be insignificant. The Staff has, in this regara, satisfied the Commission's NEPA mandate and, contrary to allegations of the Sierra Club, the preparation of an EIS is not required.
Nor are the protestations of the Sierra Club concerning the EA as being inadequate due to its failure to consider alternatives (Appeal Brief at 23) and its reliance on a non site-specific, Generic EIS (GELS), (Ap-peal Brief at 21, fn, 20), in accord with the record evidence in this pro-ceeding. The Sierra Club did not introduce evidence at the hearing to support its present allegations that the EA did not consider alternatives and improperly relied upon the GEIS for its conclusions. Further, Staff notes that the status of the GEIS was not raised herein by the Sierra l l
Club as a contention. Nevertheless, the EA (Staff Exhibit 2) at
)
i 3/ See,10 C. F. R. 9 51.32.
M/ ID at 60, slip op.
t
pages 13-14 estab!Ishes. that the Staff used seventeen references in addi-tion to the GEIS in assessing the impacts of the proposed amendment.
1 Thus, Sierra Club's allegation that the EA improperly relles upon the ,
1 -
l GEIS for its conclusions is incorrect. Further, the Licensing Board found that the Applicant did consider alternatives to the proposed reracking, that the Staff revicwed the alt nat es and that h:h consid-erations as set forth in its Reracking Report were sufficient to comply with NRC requirements. 5 Thus, the record herein clearly reflects that the Staff's EA is predicated upon more than the GEIS, is site specific and, further, that the Staff did consider alternatives to the proposed reracking. SI Sierra Club's allegations in this regard are without record support or other factual basis.
Sierra Club allegations that the Licensing Board misapplied the Ap-peal Board's recent decisions in Vermont Yankee S in determining to reject its contention alleging the need for the Staff to prepare an envi-ronmental impact statement on the Applicant's reracking amendment like-wise is incorrect. Appeal Brief at 19. The Appeal Board in Vermont Yankee did not, as Sierra Club alleges, "merely rule [d] that the specific accident scenario at issue there was too remote and speculative to trigger the requirement that an EIS be performed." $ Rather, the Licensing Board in the instant proceeding also relied on the Vermont Yankee Appeal 1
46/ ID, Finding 34, see also, Findings 25-33; Order at 11, slip op.
47/ id.
4_8 / Fn. 42, supra.
49/ ld.
j
_ 29 _
Board's holding that the Commission's discretionary policy of requiring the discussion of severe, beyond design basis accidents in EIS's prepared 1
after the date of the policy, June,1980, on construction permit and oper- ,
. Y; ,
ating license applications is not applicable to operating license amendment applications. SI '
in arguing that it has shown specific factors linking the draft BNL i
Report to the Diablo Canyon reracking proposal that make the likelihood of a Zircaloy cladding fire at the Diablo Canyon plant more than a " remote and speculative" event, the Sierra Club merely restates an argument al-ready made to and cori ectly rejected by the Licensing Board. EI Moreover, the Sierra Club's bare assertions also ignore the conclusions of t Appeal Board in A LA B-877 concerning the impact of its Vermont Yankee opinion. In ALAB-877, the Appeal Board noted: j Very recently, in the Vermont Yankee spent fuel pool pro-ceeding similarly 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, 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 in-tervenor to provide at least some reason to think that, at Diablo Canyon even if not at Ginna or Millstone, the possibil-ity of an event causing a major loss of spent fuel pool water was sufficiently great to remove the hypothesized fuel clad-ding 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 pro-ceeding reflects, and the Sierra Club does not dispute in its
-50/ See, Order, September 2, 1987, at 14, slip op. (citing Vermont Yankee, ALAB-869, slip op. , at 28-29).
51/ Order at 13-14.
L_________
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. Therefore, any seismic event causing significant damage to the spent fuel pools would qualify as a beyond design-basis, incident. In '
observing in Vermont Yankee that remote and speculative evt.nts do not require consideration for NEPA'. p'urposes, we made specific reference to such incidents.
In short, although it may persuade us otherwise upon a full briefing on its appeal, 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 ap-proval of the reracking proposal. ALAB-877 at 10-12, slip op. , footnotes omitted. .
If the Sierra Club's arguments were allowed to preva!!, any and all reracking requests would require the preparation of an EIS. Yet the Commissicn has not included such licensing actions in its regulation iden-tifying actions requiring an EIS. - The Sta ff's preparation of an environmental assessment on the proposed action is consistent with the Commission's regulations in Part 51. The Sierra Club's challenge to the Staff's finding of no significant imp 6ct and decision not to prepare an environmental impact statement is, as the Licensing Board found, lacking in nexus between the document on which the Sierra Club relies, the draft BNL Report, and the Diablo Canyon facility. Lacking the nexus that the Licensing Board believes to be needed to give generic issues the specific-ity required for contentions, the remote and speculative nature of its tenuous claims and the lack of an explanation of how the Diablo Canyon spent fuel pools might reasonably be expected to lose their cooling water, the Sierra Club's late-filed contention was properly denied.
5_2 / See ,10 C. F. R. 6 51.20(b).
l C. The Licensing Board's Determination With Respect to Contcntion 1(B)(7) Was Correct The Sierra Club's Centention 1(B)(7) provides in pertinent part as
. follows: ,
In particular, the Reports fall to consider: ,
- 7) alternative on-site storage facilities including:
v (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; ,
At page 25 of its Appeal Brief, the Sierra Club presents its only chal-lenge to the Licensing Board's ID and states that it presented expert testimony showing that consideration given these alternatives by the Ap-pilcant was not adequate to protect the public health and safety. The above allegations are made without any record support. However, there is record evidence to the contrary.
The Licensing Board, in its ID, found that the Applicant did consid-er alternatives before selecting the reracking alternative and that t
Dr. Ferguson, the Sierra Club's only witness for this contention, testified that the Applicant considered alternatives. 5 Moreover, the Licensing Board found that the Sierra Club did not present any affirmative evidence to show that the Applicant failed to consider other alternatives to reracking. OI Based upon the record herein, the Licensino Board correctly concluded that the Applicant had considered sufficient informa-53,/ ID, findings 31, 32, 33 at 34-45.
54/ Id. , finding 31 at 34.
l l
tion on alternatives to find that the proposed reracking will adequately protect the public health and safety. SI All of these findings are directly contrary to the bare, unsupported allegations of the Sierra Club i y
- that the Applicant's consideration of alternatives was',not adequate to pro-
^
tect the public health and safety. : .
The fact that the Applicant did not yonsider the draft BNL Report when it considered alternatives to its reracking proposal (Appeal Brief at 25) should come as no surprise. The draft BNL Report was not pub-lished until well after after the Applicant considered alternatives to its rcracking proposal and the Staff issued its EA. This does not mean the draft CNL Report was not ultimately considered. See, Staff supplement to EA, dated October 15, 1987. The fact that the Sierra Club is dissatis-fled with the conclusions reached by the Staff in its supplemental EA does not mean that the impacts discussed therein were ignored. The Sierra Club's assertions regarding the rejection of its Contention'1(B)(7) are not in accord with the record evidence in this proceeding. The Licensing Eoard was correct in denying the contention.
IV. CONCLUSION in view of the foregoing and based upon the evidence herein, the Licensing Board was correct in denying the Sierra Club's late-filed con-tention on zircaloy cladding fires in spent fuel pools as expressed in the draft BNL Report. In addition, the late-filed contention also fails to sat-55/ Id. at 60; See also, Staff discussion on alternatives at 27-28, supra..
1sfy -the criteria for late-filed contentions and should be denied on that basis as well. The Sierra Club has not substantiated its claim that an EIS is required for the proposed reracking amendment at Diablo Canyon
- s. -
or that its Contention 1(B)(7) was improperly decid'cd'. The record here-in clearly supports the findings and conclusloris of the Licensing Board thet the proposed reracking will adequately protect the public health and safety and environment and that the application meets or exceeds the re-auirements of 10 C.F.R. Parts 50 and 51 and related Commission regula-tions and requirements. ID at 60.
In view thereof, the Licensing Board's Memoranduc and Order of September 2, 1987, and its initial Decision of September 11, 1987, should be affirmed. The Sierra Club's appeal of these matters should be denied.
Respect fully sutmltted, f C4W C nJamin H. Vogl6r / d Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 11th day of Decenter,1987 E
DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 'g7 g g jf p 4 ]j BEFORE Tl1E ATOVIC SAFETY AND LICENSING APPEAL BOARD
> Y[0C$biI$G ft i E' BRANCH
~
jn the Matter of ) /
) . .
PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) s 50-323 OLA
) J (Diablo Canyon Nuclear Power Plant, ) (Spent Fuel Pool)
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO APPEAL OF SIERRA CLUB FROM THE LICENSING BOARD'S MEMORANDUM AND ORDER OF SEPTEMBER 2, 1987, AND INITI AL DECISION OF SEPTEMBER 11, 1987" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 11th day of December,1987:
B. Paul Cotter, Jr. , Chairman Bruce Norton, Esq.
Administrative Judge c/o R. F. Locke, Esq.
Atcmic Safety and Licensing Board Panel Pacific Gas and Electric Co.
U.S. Nuclear Regulatory Commission P.O. Rox 7442 Washington, D.C. 20555* San Francisco, CA 94120 Clenn O. Bright Nancy Culver Administrative Judge 192 Luneta Street Atomic Safety and Licensing Board Panel San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission Washington, D.C. 20555* Mrs. Jacquelyn Wheeler San Luis Obispo Mothers for Peace Dr. Jerry Harbour 3033 Barranca Court Administrative Judoe San Luis Obispo, CA 93401 Atomic Safety and Licensing Board Panef U.S. Nuclear Regulatory Commission
. Washington, D.C. 20555* Richard F. Locke, Esq.
(77 Beale Street, 31st Floor)
Richard E. Blankenburg P.O. Box 7442 Co-publisher San Francisco, CA 94120 (94106)
Wayne A. Soroyan, News Reporter South County Publishing Company P.O. Box 460 Arroyo Grande, CA 93420
l Docketing and Service Section Vir. Lee M. Gustafson ,
Office of the Secretary Pacific Gas and Electric Co.
U.S. Nuclear Regulatory Commission Suite 1100 Washington, D.C. 20555* 1726 M Street, N.W.
Washinoton, D.C. 20036-4502
-y
- Atcmic Safety and Licensing Dr. Richarcf Ferguson Board Panel Vice-Chairman U.S. Nuclear Regulatory Commission Sierra Club Washington, D.C. 20555* Ro,cky Canyon Star Route Cr.iston, CA 93432 Atomic Safety and Licensing
~
Appeal Board Panel Laurie McDermott, Co-ordinator U.S. Nucicar Regulatory Commission C. O. D. E. S.
Washington, D.C. 20555* 731 Pacific Street Suite #42 Managing Editor San Luis Obispo, CA 93401 San Luis Obispo County ,
Telegram-Tribune Dian M. Grueneich, Esq.
1321 Johnson Avenue Marcia Preston, Esq.
P.O. Box 112 LAW OFFICE OF DIAN M. GRUENElCH San Luis Obispo, CA 93406 380 Hayes Street, Suite 4 San Francisco, CA 94102 W e
/ .
Benjamin H. Vogler Senior Supervisory Trial Attorney I
l 5
l
_ _ - - _