ML20238A577

Supplemental Brief Re Applicability of ALAB-869 to Inclusion of Zircalloy Cladding Fire Contention.* Sierra Club Believes Focus for Admission of Contentions Must Be Requirements of Atomic Energy Act & Nepa.Proof of Svc Encl

ML20238A577
Person / Time
Site:	Diablo Canyon
Issue date:	08/14/1987
From:	Grueneich D GRUENEICH, D.M. (FORMERLY GRUENEICH & LOWRY), Sierra Club
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4244 ALAB-869, OLA, NUDOCS 8708210015
Download: ML20238A577 (11)

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..; hh DOCKE TED Dian M. Grueneich GRUENEICH & LOWRY 380 Hayes Street, Suite 4 San Francisco,-CA 94102 87 AUG 17 All:03 1

Telephone: .(415)861-6930 m -

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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

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In the Matter of: ) Docket Nos. 50-275 and 50-323 -6d

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PACIFIC GAS'& ELECTRIC COMPANY )

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(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

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f SUPPLEMENTAL BRIEF REGARDING THE APPLICABILITY OF ALAB-869 TO INCLUSION OF ZIRCALLOY CLADDING FIRE CONTENTION Pursuant to the Board's July 31, 1987 Order, the Sierra Club hereby addresses the applicability of the recent Appeal Board l

decision (ALAB-869) in the Vermont Yankee license amendment proceeding to the Club's motion to admit a new contention dealing

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with the risks and consequences of a zircalloy cladding fire, l j

i The Club's motion also requested that the Board dismiss the prior finding of no significant impact and order that an environmental impact statement be prepared for the modification of spent fuel facilities at Diablo Canyon.

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The Appeal Board ruling dealt with three proposed contentions. Contention 1 stated that the proposed spent fuel l l

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pool -expansion amendment for Vermont Yankee should be denied because the systems used will violate single failure criterion of the NRC. The Appeals Board admitted portions of the contention,  !

rejecting the argument of the applicant that interveners should have raised the issue earlier. The Appeal Board's ruling does f

not appear to have any bearing on the contention proposed by the Sierra Club.

Contention 2 was that the proposed amendment would create a situation in which the consequences and risks of a hypothesized accident (hydrogen detonation in the reactor building) would be greater than those previously evaluated for the reactor. The contention further asserted that this risk is sufficient to constitute the proposed amendment as a major federal action significantly affecting the environment and. require issuance of an EIS. ALAB-869, p. 22. The Appeals Board rejected the three arguments advanced by the applicant for rejecting the contention.

The third argument which the applicant had advanced on contention i 2 was that there was no nexus between the contention and the proposed amendment. Since PG&E and the NRC staff present a similar argument here, the Appeals Board dismissal of that f

argument appears relevant.

The Appeals Board in ALAB-869 advanced on its own a fourth argument which it relied upon in dismissing contention 2. The Appeals Board concluded that the National Environmental Policy Act ("NEPA") does not requir'e the NRC to examine claims of increased risk from beyond design basis accident and that any 2

4 examination by the NRC is a matter of discretion pursuant to the NRC's NEPA Policy Statement. The Appeals Board further found that the Policy Statement does not by its terms apply to license amendments. Finally, the Appeals Board concluded that there must be some basis for requiring an EIS other than a claim of increased risk from a beyond design-basis accident scenario and tnat the interveners' claim in the Vermont Yankee proceeding had no basis for requiring an EIS other than the assertion that the proposed action (expansion of the spent fuel pool) will significantly r>ffect the environment, thereby requiring an EIS, because of the risks of the beyond design-basis accident scenario. ALAB, pp. 28-29. The Sierra Club addresses below the relevancy of this holding to its motion.

The Appeals Board also dismissed Contention 3. The original I

contention argued that the staff must prepare an Environmental Assessment and must consider alternatives to spent fuel expansion. The Licensing Board rewrote the contention to state that the applicant had to submit environmental information.

Here, unlike Vermont Yankee, an Environmental Assessment has already been issued. The Appeals Board distinguished this l

proceeding from Vermont Yankee on that basis (p. 33) and thus the l Sierra Club does not believe the Appeal Board's ruling is relevant. Moreover, the Board here has already admitted contentions regarding consideration of alternatives. Order, dated June 27, 1986, pp. 26 and 35.

In the Ninth Circuit litigation last year involving this 3

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proceeding, the Sierra Club (and Mothers for Peace) argued that  ;

the NRC had violated NEPA and requested that the Court order the NRC to comply fully with the mandates of NEPA by using current, site specific information and by preparing an EIS on the proposed i reracking and spent fuel storage. Because it found the NRC's action approving the reracking amendment in advance of public hearing to have been impermissible under NRC's own regulations, the Court did not need to reach the Club's NEPA argument. The Court did state however:

With respect to petitioners' NEPA claims, however, we note  ;

that the site specific environmental assessment was based on {

a seven year old generic environmental assessment and that-no worst case analysis, 40 C.F.R. S 1502.22, appears to have been conducted. We strongly suggest that any doubt concerning the need to supplement the NEPA documents be resolved in favor of additional documentation. -

1 San Luis Obispo Mothers for Peace v. United States Nuclear  ;

Regulatory Commission 799 F.2d 1268, 1271 (9th Cir. 1986). With that decision in mind, the cierra Club has specifically requested i that the NRC consider the risks and consequences of a zircalloy l cladding fire at Diablo based on the Brookhaven Report and especially the recommendation by two of the authors against storage of spent fuel in the manner proposed for Diablo Canyon.

Any ruling by this Board on the Sierra Club's contention must be consistent with the Ninth Circuit's prior decision on this case, regardless of any ruling by an Appeals Board or the NRC itself in another proceeding.

L The recent Appeals Board ruling in Vermont Yankee does not l l

eliminate the need for the NRC to consider and resolve the Sierra  !

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. _ . _ _ _ _ _ _ . . . _ _ _ _ _ _ _ _ . _ . . _ _ - . _ _ _ . - _ _ _ . _ _ _ ______ s

I Club's' contention for several reasons.

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First,'the Appeals Board I recognizes that' the need for an E I S' in a spent fuei - poci

. proceeding'must be determined on a case-by-case basis. 'ALAB, pp.

23 and 26, . citing Pacific' Gas and Electric Co. (Diablo Canyoti Nuclear Power Plant, Un1ts 1 and 2), CLI-86-12, 24 NRC 1, 12, , j ,

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rev'd on other ~ orounds sub nom., San Luis Obispo Mothers' fqr e Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986).

TheSierra' Club,fs ,

, t 9 contention asks the Board here to follow this directive and'Iat * '

least consider in this proceeding the analysis of the Brookhav m > [

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study and its implications for the safety and environmental ,.

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protection at Diablo Canyon.1 .,

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Second, the basis for the Appeals Board decision' appears to u ,

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be primarily a determination by the Board that the accident scenario at issue in'the Vermont Yankee proceeding contention was t,

a highly improbable, remote, and speculative eveSp. and thus '

governed by the statements in. San Luis Obispo Mothers for Peace ,' e

v. NRC, 751 F.2d 1207 (D.C. Cir. 1984), aff'd en banc, 789 F.2d j 26 (1986), cert. denied, _ _ U.S. , 107 S. Ct. U330 (1986) and i e

other cases cited on p. 27 of the ALAB decision. The D.C.  !

1 For example, the only other case cited in the ALAB ruling on this issue emphasizes that the controlling factor for what the '

NRC must -do under NEPA in apent fuel proceedings is the actual

• information relevant to the facts of that case. See Township of Lower Alloways Creek v. Public Service Electric and Gau Go 2, 687 F.2d 732, 727 (3rd Cir. 1982): "Our holding, therefore, is explicitly intended to leave open the possibility that,;'iu some future case, evidence could be presented such that a court might deem the reracking of a spent fuel pool 'significant' for NEPA purposes." All the Club is asking here is that the NRC exqmine s j

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the significance of the Brookhaven Report to the Diablo Canyon p!

proceeding and prepare an EIS ascossing in particular the, risks f,

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and consequences of a zircalloy cladding fire. ,' 1 5 I 1 'g  !

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f Circuit did rule in Sa_( Luis Obispo thaf.' j the Commist:, ion ' hsd no i

l r.Tangtory duty to mapplement the Diablo Fanyon EIS vi th ' a j

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discussion of Claen Nine ' accidcts J.f_ the Commission reasonably e .

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believed that such accidents,were Itighly unlikely te, occur.

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F.2d at 1287. Fr,/wever, a9<both '

the Appeals Board and San Luis 1 ', ,

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Oj.jspo recogpize, the NRC certainfy has discretionary authority

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to consider i beyond design-basis accidents. N o t h i n g ', i n that

/ ruling (or the Appeals BoErd decision) precludes a discretionary 1

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decision by the NRC to accepe '

The Sierra Club's contention. The

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most pecer t< court ruling reharding the NRC's duties for this l

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,proceedfrig is the Ninth r Circed t 's decision last year; the San f

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Luis Obd_spo decir4cn wr 6',1,

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p.u'.:wed ' by the 9.C. Circ:uit before the

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, si Ninth Cfrouit's ruling.

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Ninth Circuit's decision Indicates a

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f c 4ar CCpce en that the ' NPC) address fully and completely all {

environmental and safety matters affecting the Diablo Canyon

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f E. pent fuel pool expansion.

Third, even assuming 'that San Luis

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> T Obfsoo's ruling on Class ~ 9' accidents applies to the accident j

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i ef scenario at issue here, the NRC can ignorra the Club's proposed )

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, contention under that decision only.Iffit can demonstrate that it

" reasonably believes" the z'Mealloy cladding accident is " highly <

unlikelt to occur."' No suen demonstration has been made; that is l

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l precist iy ( why ', t h e Sierra ClOU believes it is necessary to

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consider this scenario.

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, As noted above,' the ' principal basis for the ALAB ruling

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appears to be a determinate.on that the accident scenario under l

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consideration there was remote and speculative. ALAB, p. 27.2 While the ALAB decision does not provide a detailed statement of the accident scenario involved in the contention in the Vermont Yankee proceeding, the accident scenario contained in the Sierra Club's proposed contention is not merely " speculative". Appendix B of the Brookhaven Report concludes:

Based on our review of the cladding oxidation rate model and the sensitivity study, we conclude that the conditional probability of self-sustaining clad oxidation and resultant  !

fission product release, given a loss of pool integrity event, is about 10% to 40% for BWRs and 16% to 100% for l

PWRs, depending on the storage rack configuration.

l We recommend that spent fuel not be stored in high density I racks until it has been stored for 2 or more years in the old style cylindrical racks with adequate coolant opening (3 .

or more inch diameter holes. I Appendix B to Sierra Club's Exhibit 1, at pp. 2 and 3.

In addition, the San Luis Obispo decision also examined the duty to conduct a worst case analysis under NEPA. The worst case L

2 The NRC previously has ruled that generic safety issues may I be the subject of a contention, so long as the contention establishes a nexus between the issue and the particular license  ;

application. In the Matter of Public Service of New Hampshire (Seabrook Unit 1), LBP-82-106, 16 NRC 1649, 1657 (1982). See also In the Matter of Southern California Edison Company, et al.,  !

(San Onofre Nuclear Generating Station, Units 2 and 3), CLI i 33, 14 NRC 1091, 1092 (1981) in which the Commission deferred 1

consideration of potential impacts of a severe earthquake on d emergency planning to a generic basis because it was "sufficiently unlikely" that an earthquake and accidental i radiological release could disrupt normal emergency planning in  !

the interim. Here, however, the recommendation of the Brookhaven Report is that beginning now, spent fuel should not be stored in high density racks of the type at Diablo Canyon until it has been  ;

stored for two or more years in other racks. The Sierra Club is '

not asking for resolution of any generic issue. The focus of its j contention is specific to Diablo Canyon.

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analysis is designed to deal with situations, such as here, where there are problems of scientific uncertainty. The D.C. Circuit concluded that:

[w]here uncertainty exists as to either probability or consequences, however, a worst case analysis is mandatory if 1 the agency decides to proceed with its proposed action.

Most notably (and most controversially), the regulation requires such an analysis even whe.e the probability of an I

impact is assumed to be very small.

751 F.2d 1203. See also, San Luis Obispo Mothers for Peace v.

NRC, 799 F.2d at 1271. The D.C. Circuit ruled that this requirement did not apply to San Luis Obispo because tL'; final and supplemental EIS there was filed significantly before the effective date of the requirement. 751 F.2d at 1301. l However, the D.C. Circuit's statement of the requirements 1' under NEPA of a worst case analysis is consistent with rulings by j!

other Circuits. "[T]he mere fact that the possibility of an i event occurring is remote or unlikely does not obviate the necessity to do a worst case analysis." Save Our Ecosystems v.  !

Clark, 747 F.2d 1240 (9th Cir. 1984); see also Sierra Club v.

Sigler, 695 F.2d 957 (5th Cir. 1983). These cases were not il mentioned in the ALAB ruling. They indicate that even if the l l

possibility of an accident is remote, it still must be considered 8 j

under NEPA under the worst case analysis.

c The Appeals Board ruling (p. 28) also discusses the NRC's  !

1980 Policy Statement on NEPA and asserts that nothing in the l language of the statement indicates that it was intended to apply ,

to a license amendment proceeding and that it only directs what i should be included in the EIS, not whether the EIS is required in 1

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the first place. However, there is nothing in the Policy Statement indicating that the same considerations of NEPA that lead the NRC to issue the statement for ongoing licensing proceedings would not apply to license amendment proceedings as well. Moreover, the gist of the Policy Statement is that the NRC should not on a blanket basis refuse to undertake a NEPA review of certain accidents but rather the NRC should assess both the risk and consequences of such accidents under NEPA. This philosophy, far from being at odds with the Club's contention, supports the Club's position.

The Appeals Board ruling also concludes that "there must be some basis for requiring an EIS other than a claim of increased risk from a beyond design-basis accident scenario." ALAB, p. 28.

The ruling cites no statute, regulation, or case law so it is unclear what legal authority the Appeal Board may be relying on.

Certainly, there is no basis under NEPA for ruling out er consideration of events which may affect the need to prepare an EIS just by labeling them "beyond design basis". Nor is there any basis under NEPA for an agency considering some fact or circumstance only for its decision on the scope of an EIS yet refusing to consider the same fact of circumstance in deciding whether an RIS is required.

The basis for the Appeals Board's conclusion appears to be its determination that the accident scenario in Vermont Yankee was entirely speculative and therefore could not trigger preparation of an EIS. As explained above, the Sierra Club 9

J believes that the facts in this proceeding distinguish the accident scenario at issue here from that at issue in Vermont

- Yankee.

The Sierra Club believes that the focus for admission of its contention must be the requirements of the Atomic Energy Act and NEPA. The Ninth Circuit has already cautioned the NRC in this proceeding about its concerns that the agency is not taking the requisite "hard look" that NEPA and the Atomic Energy Act require. There is nothing in the'ALAB ruling that eliminates or modifies the NRC's duty under law to consider the Sierra Club's contention.

Dated: August 14, 1987 Respectfully submitted,  ;

GRUENEICH & LOWRY

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By C ~

i Dian M. Gruene16h ~

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NLKE H r W

PROOF OF SERVICE '87 AUG 17 A11 :04 1 I, Julie Miller, declare that on August 14,7)S87, I deposited copies of the attached Supplemental BriehC!Regardingi the J Applicability of ALAB-869 to Inclusion of Zircalloy C1' adding Fire Contention in the United States . mail with postage thereon fully j prepaid and addressed to the parties listed below: '

i Dr. Jerry Harbour Mr. Leland M. Gustafson, j Administrative Judge Federal Relations Manager l Atomic Safety & Licensing Board Pacific Gas & Electric Co.

U.S. Nuclear Regulatory Comm, 1726 "M" Street, NW, Suite 1100 Washington, D.C. 20555 Washington, D.C. 20036-4502 Glenn O. Bright Richard F. Locke, Esq.

Administrative Judge Pacific Gas & Electric Co.

Atomic Safety & Licensing Board P.O. Box 7442 U.S. Nuclear Regulatory Comm. San Francisco, CA 94120 Washington, D.C. 20555 i

Mr. Gordon A. Silver  !

Benjamin Vogler, Esq. Ms. Sandra A. Silver j Lawrence J. Chandler, Esq. 660 Granite Creek Road Office of the General Counsel Santa Cruz, CA 95065 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Ms. Laurie McDermott, Coordinator i Atomic Safety & Licensing C.O.D.E.S.

Board Panel 731 Pacific Street, Suite 42 U.S. Nuclear Regulatory Comm. San Luis Obispo, CA 93401 Washington, D.C. 20555 Mrs. Jacquelyn Wheeler B. Paul Cotter, Jr., Chairman 2455 Leona Street Administrative Judge San Luis Obispo, CA 93400 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm. Dr. R.B. Ferguson  !

Washington, D.C. 20555 Sierra Club / Santa Lucia Chapter Rocky Canyon Star Route l Atomic Safety & Licensing Creston, CA 93432 j Appeal Panel )

U.S. Nuclear Regulatory Comm. Ms. Nancy Culver l Washington, D.C. 20555 192 Luneta Street l San Luis Obispo, CA 93401 Bruce Norton, Esq.

Pacific Gas & Electric Company l

P.O. Box 7442 j San Francisco, CA 94120 I am, and was at the time of the service of the attached paper, over the age of 18 and not a party to the proceeding.

I declare under penalty of perjury that the foregoing is true and correct.

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