ML20238A600

Response of NRC Staff to ASLB Order of 870731 (Directing Parties to File Comments on Applicability of Aslab Decision in Vermont Yankee Nuclear Power Corp,ALAB-869,to Proposed Contentions at Issue in Matter).* Certificate of Svc Encl

ML20238A600
Person / Time
Site:	Diablo Canyon
Issue date:	08/13/1987
From:	Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4235 ALAB-869, OLA, NUDOCS 8708210021
Download: ML20238A600 (9)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD W In the Matter of )

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PACIFIC CAS AND ELECTRIC ) Docket Nos. 50-275 OLA COMPANY ) 50-323 OLA

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(Diablo Canyon Nuclear Power Plant ) (Spent Fuel Pool)

Units 1 and 2) )

RESPONSE OF THE NRC STAFF TO THE LICENSING DOARD'S ORDER OF JULY 31,1987 [ DIRECTING THE PARTIES TO FILE COMMENTS ON THE APPLICABILITY OF THE APPEAL BOARD'S DEClf,10N IN VERMONT YANKEE NUCLEAR POWER CORPORATION, ALAB-869, TO THE PROPOSED CONTENTIONS AT ISSUE IN THIS MATTER)

1. INTRODUCTION ce On July 31, 1987 the Licensing Board in an Order noted that the Decision of the Appeal Board in Vermont Yankee Nuclear Power Corp., (Vermont Yankee Nuclear Power Station), 26 NRC , A LA B-869, (July 21, 1987) concerned, inter alla, the admissibility of certain types of contentions dealing with beyond design-basis, severe accidents in spent fuel pools. Because ALA B-869 was issued after the parties in this proceeding had filed their pleadings relating to the Sierra Club's motion to admit contentions , the Licensing Board directed the parties to file simultaneous briefs on or before August 14, 1987 discussing the app!! cab!!lty of ALAB-869 to the proposed contentions.

11. BACKGROUND On March 27, 1987, the Staff issued a Board Notification, BN 87-05, transmitting to the Commission, as a matter of possibly substantial public, e 8708210021 870013 PDR ADOCK 05000275 O PDR

f. press or Congressional interest, a draft report prepared by the Brookhaven National Laboratory (BNL) entitled "Beyond Design . Basis Accidents in Spent Fuel Pools (Generic Issue 82)." Sierra Club Ex.1, for identification only (Draft report or draft BNL report). The Staff's ,

preliminary assessment of the draft report and its relation to ongoing proceedings was presented with the Board Notification. Copies of the Board Notification were transmitted to the Board and parties to this proceeding.

On June 16, 1987, the first day of the hearings on the admitted contentions concerning the Licensee's application to rerack its spent fuel pools. In the captioned proceeding, the Sierra Club orally moved for the admission of a new contention regarding the possibility of zircaloy cladding fires in the Diablo Canyon spent fuel pools and asked that the Board direct the preparation of an EIS on this matter. Tr. 142-149.

Sierra Club argued that the basis for admission of the new contention was information. contained in the draft BNL report. M. The Sierra Club's motion was opposed by both the Licensee and Staff. Tr. 150-156, 1 4 -160, respectively. Nonetheless, without ruling on the oral motion, the Board permitted the Sierra Club to file a written motion regarding

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this matter. Tr. 291, 630.

On June 29, 1987, the Sierra Club flied a written motion requesting that the. Atomic Safety and Licensing Board admit a new contention and direct the preparation of an environmental impact statement (EIS) i regarding the possibility of zircaloy cladding fires in the spent fuel pools at the Diablo Canyon Nuclear Power Plant. (Motion) . The Licensee and the Staff separately opposed the motion.

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g As noted , the Appeal Board in its Vermont Yankee Decision, hereinafter ALAB-869, at Slip Op. 20-29, discusses a proposed contention relating to severe accidents in spent fuel pools and determines, inter alla, that NEPA does not require NRC consideration of severe, beyond design-basis accidents because they are by definition remote and speculative events , Id. at 27, and the Commission's NEPA Policy Statement O d oes not specifically apply to license amendment proceedings or to proceedings where an EIS is not otherwise required. M. at 28.

Ill. DISCUSSION A. Sierra Club's Motion to Admit New Contention in its Answer to the Sierra Club' motion to admit contentions the Staff concluded that the Sierra Club failed to satisfy any of the requirements for the admission of its proposed contentions. 2/ The Staff pointed out that the draft BNL report was generic in nature $ and that it therefore was incumbent upon the Sierra Club to establish the required nexus between the draft report and the Diablo Canyon facility. The

~1/ Commission's Interim Policy on " Nuclear Power Plant Accident l Considerations Under the Na'Jonal Environmental Policy Act of 1969,"  !

45 Fed. Reg. 40,101 (1980) hereafter NEPA Policy Statement. The j NEPA Policy Statement sets forth the circumstances under which the J more severe, low probability ar.cidents should be considered in an )

EIS.  !

-2/ Staff's comments concerning the Sierra Club's failure to demonstrate a balancing of the five factors set forth in 10 C.F.R. 9 2.714(a)(1) )

for late filed contentions are not addressed herein because they are i not germane to the issue addressed in ALAB-869. l 3/

The Sierra Club agrees, ". . .the problem of cladding fires is not unique to Diablo Canyon. . . ." Motion at 6.

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p Sierra Club, however, failed to establish such a nexus, relying instead on a simplistic characterization of the generic conclusions of the draft DNL report. U As the Licensing Board is aware, the draft BNL report analyzes, for two older, surrogate plants, a templex chain of events leading to the catastrophic failure of the spent fuel pool, the resultant initiation of combustion of the zircaloy fuel cladding and the eventual 1

release of radioactivity into the environment. This chain starts with an analysis of the probability of a seismic event exceeding the design basis  ;

of the facility sufficiently to cause the loss of the spent fuel pool's structural integ rity, it then considers the fragility of the spent fuel pool, that is, the probability that the structure can survive the seismic event. The draft report goes on to assess, for various rack i config urations , the likelihood and timing of possible combustion of the cladding, assuming the total loss of pool coolant resulting from the loss of pool integrity. Next, the draft report discusses estimates of radiological I

releases, and, finally, the consequences of such releases. Throughout j the report, there are a number of significant caveats discounting its direct and literal application to other specific facilities.

The proposed contention casually assumes the applicability of the draft report to the Diablo Canyon spent fuel pools without consideration of the critical factors underlying BNL's analytis. The Sierra Club simply asserts that the racks to be used at Diablo Canyon are "like those identified in the Brookhaven report . " Motion at 2. It does not assert

-4/ See, Staff Answer to Sierra Club's Motion to Admit a Contention Regarding Generic issue 82. . .at 9-11.

, that, beyond the similarity of the racks, the Diablo Canyon s,ppnt fuel pools are in any way structurahy equivalent to the " pool" structure analyzed in the draft BNL report such that the draft report has any direct and substantive applicability to the Diable Canyon facility. Based on the above, the Sierra Club's motion concludes that the failure to consider the possibility of catastrophic cladding fires at Diablo Canyon whose risk is comparable or greater than core melt accidents would be in clear violation of existing law. Motion at 6. In response to this proposed contention the Staff in its Answer on July 10, 1987 advised:

But the predicate for the admission of such contention is the establishment, by the Sierra Club, of a " credible" scenario, the consequences of which would be radiological releases in excess of the guideline values of Part 100. The credibility of the scenario hypothesized in the draft BNL report in the context of the proposed Diablo Canyon rerack amendment, or for that matter, its applicability to any particular facility, is, however, explicitly discounted by the draft report itself through its numerous caveats. See discussion above at 11-12. Thus, simple reliance on the document for that proposition, as obviously was all that was done by the Sierra Club in its Motion, is insufficient to provide the requisite basis for its proposed contention.

Answer at 12.

Finally, with regard to the Sierra Club's motion for the preparation of an EIS, the Staff noted. ..

As a general matter, an EIS is not required unless it is found that the environmental impacts associated with the Licensee's proposed reracking may be significant. See, Staff Ex. 2.

That the previously issued Environmental Assessment (EA),

Staff Ex. 2, did not consider the draft BNL report should ,

come as no particular surprise in that the draft report was not published until almost nine months after the EA was issued. The Staff nonethless intends to give due consideration to the draft report and will supplement its EA to the extent necessary to assure compliance with NEPA and the Commission's regulations before any license amendment is issued by the Staff in this proceeding.

Answer at 8-9. fn.5 1

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S B. The Appeal Board's Decision in Vermont Yankee,' ALAB-869

. The ' Appeal Board in its Vermont Yankee Decision rejected the Licensing Board's admission of a contention that broadly asserted that the NRC had not complied with the National Environrh66tal Policy Act (NEPA) and its own regulations. The contention in Vermont Yankee postulated an accident based upon a hypothesized failure of the spent fuel pool scenario involving a chain of unilkely events for which no basis was provided. The Licensing Board construed the proposed contention as postulating a situation in_ which consequences and risks would be greater than those previously evaluated a'nd this was sufficient to constitute a " major federal action" requiring the preparation of an Environmental impact Statement. 5/ As noted, the Appeal Board rejected the Licensing Board's admission of this proposed contention and the Licensing Board's interpretation of NEPA and the Commission's regulations. In doing so,

- the Appeal Board supported the Staff position in Vermont Yankee that the I

proposed contention must be rejected because it is premised on a comparative assessment of risks involving spent fuel pools for a remote chain of unlikely events. The Appeal Board cited San Luis Obispo J

Mothers for Peace v. NRC, 751 F.2d. 1287, 1301, (D.C. Cir. 1984), l J

aff'd en banc, 789 F.2d. 26 (1986), cert denied, U.S. 107 S.

' Ct. 330 (1986), for its holding that NEPA does not require NRC consideration of severe, beyond design-basis accidents because they are l -5/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) LBP-87-17, 25 NRC (May 26, 1987) (Slip op. at 44).

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t characterizations of the generic conclusions of the draft BNL report. As such, the Sierra Club's proposed contention is based on a assessment of risks involving spent fuel pools for a chain of unlikely events 'for which no nexus to Diablo Canyon is provided. In thosbsence of a basis for arguing that such a chain of events is other than remote and speculative, >

such events would properly be beyond the design basis and, consistent with ALAB-869, would not require an EIS. In that regard the proposed contention in this case is similar to the contention rejected by the Appeal i

Board in ' ALAB-869. Therefore, Staff is of the view that ALAB-869 directly supports the position taken by the Staff in this proceeding and submits that the Sierra Club. should not be permitted to use a remote and speculative beyond design-basis accident scenario to " bootstrap" their way to an admissible contention that asserts an EIS is required to examine the ao environmental risks of such an accident where an EIS is not otherwise required. See, ALAB-869 at 29.

Respect ful Iy subnl t ted, ,

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BenjaminH.Vogier #

Senior Supervisory Trial Attorney Dated at Bethesda, Abryland l this 13th day of August,1987 i 1

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__-__-__________________a

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 AUG 14 P3 57 ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b6Ci ,. ; , , ,

in the Matter of ) s-  ;

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PACIFIC CAS AND ELECTRIC ) Docket Nos. 50-275 OLA  !

COMPANY ) 50-323 OLA

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(Diablo Canyon Nuclear Power Plant ) (Spent Fuel Pool) i Units 1 and 2) )

i CERTIFICATE OF SERVICE i hereby certify that copies of " RESPONSE OF THE NRC STAFF TO THE LICENSING BOARD'S ORDER OF JULY 31, 1987 [ DIRECTING THE PARTIES TO FILE COMMENTS ON THE APPLICABILITY OF THE APPEAL BOARD'S DECISION IN VERMONT YANKEE NUCLEAR POWER CORPORATION, ALAB-869, TO THE PROPOSED CONTENTIONS AT ISSUE IN THIS MATTER]" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class, or as )

indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mall system, this 13th day of August,1987:

B. Paul Cotter, Jr. , Chairman Bruce Norton, Esq.

Administrative Judge c/o R. F. Locke, Esq.

Atomic Safety and Licensing Board Panel Pacific Gas and Electric Co. ,

U.S. Nuclear Regulatory Commission P.O. Box 7442 i Washington, D.C. 20555* San Francisco, CA 94120 Glenn O. Bright Nancy Culver.

. ,uministrative Judge 192 Luneta Street Atomic Safety and Licensing Board Panel San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555* i Mrs. Jacquelin Wheeler ,

Dr. Jerry Harbour 2455 Leona Street l Administrative Judge San Luis Obispo, CA 93401 Atomic Safety and Licensing Board Panel 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 3 Co-publisher San Francisco, CA 94120 (94106)  !

Wayne A. Soroyan, News Reporter i South County Publishing Company P.O. Box 460 Arroyo Grande, CA 93420 l

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V Docketing and Service Section Mr. 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. .

Washington, D.C. 20036-4502 Atomic Safety and Licensing Dr. Ricfi*a'r'd Ferguson Board Panel Vice-Chairman U.S. Nuclear Regulatory Commission Sierra Club Washington, D.C. 20555* Rocky Canyon Star Route Creston, CA 93432 Atomic Safety and Licensing Appeal Board Panel Laurie McDermott, Co-ordinator U.S. Nuclear 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 Dlan M. Grueneich, Esq.

1321 Johnson Avenue Edwin F. Lowry, Esq.

P.O. Box 112 Grueneich 6 Lowry San Luis Obispo, CA 93406 380 Hayes Street, Suite 4 San Francisco, CA 94102 r

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7 Be'njamin H. Vogler p

Senior Supervisory Trial Attorney l

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