ML20238E535
| ML20238E535 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/02/1987 |
| From: | Bright G, Cotter B, Harbour J Atomic Safety and Licensing Board Panel |
| To: | Sierra Club |
| References | |
| CON-#387-4354, REF-GTECI-082, REF-GTECI-NI, TASK-082, TASK-82, TASK-OR 86-523-03-LA, 86-523-3-LA, OLA, NUDOCS 8709150052 | |
| Download: ML20238E535 (15) | |
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I UNITED STATES OF AMERICA '87 SEP -4 A10 :23 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD b- >
Before Administrative Judges:
B. Paul Cotter, Jr. , Chairman Glenn 0. Bright gggygg ggp _ r,1987 Dr. Jerry Harbour In the Matter of: Docket Nos. 50-275-OLA )
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PACIFIC GAS AND ELECTRIC COMPANY (ASLBP No. 86-523-03-LA) ,
(Diablo Canyon Nuclear Power Plant, l Units I and 2) September 2,1987 MEMORANDUM AND ORDER (Ruling on Motion to Admit Contention)
On June 16, 1987, at the outset of the hearing on the remaining issues in this proceeding concerning Pacific Gas and Electric Company's application to expand the spent fuel pools for its Diablo Canyon Units 1 and 2, Intervenor Sierra Club moved to admit a contention concerning the consequences of a possible loss of coolant in the pools and asked the l Board to direct the Staff to prepare an environmental impact statement (EIS). Both the Applicant, Pacific Gas and Electric Company, and the Nuclear Regulatory Commission Staff ("the Staff") opposed the motion, and all parties briefed the ist : filings completed on August 14, '
1987. In this decision, we find that the contention is not admissible. I I
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. Applicant has applied for a license to rerack the Diablo Canyon spent fuel pools in a high density configuration that would increase the number of rack storage locations from 270 to 1324 for each unit.
51 Fed. Reg. 1451(1986). The Sierra Club now asks the Board to direct the Staff to prepare " ... an Environmental Impact Statement concerning the possibility of and impact of Zircalloy cladding fires at the Diablo Canyon facility" and moves the admission of the following contention:
The proposed action significantly increases the consequences of loss of cooling accidents in that a loss of water in the spent fuel
, aols could lead to spontaneous ignition of zircalloy cladding of the fuel elements in the high density configuration with significant releases of radiation.
Motion to Include Issues Raised in Generic Issue 82 as Contentions in This- Proceeding and to Direct Preparation of an Environmental Impact Statement. The basis for the contention proferred is a January 1987 draft report issued by Brookhaven National Laboratory entitled "Beyond Design Basis Accidents in Spent Fuel Pools (Generic Issue 82)" ("the BNL Report").1 Sierra Club Exhibit 1. The parties were notified of the existence of the BNL Report by a March 27, 1987 Board Notification from the Staff containing a statement that the report did not pertain l directly to then active licensing proceedings.
1 The final report, " Severe Accidents in Spent Fuel Pools in Support of Generic Safety Issue 82", NUREG/CR-4982 (July 1987) was sent to the Board on August 28, 1987. For the purposes of this decision, the-final report does not differ significantly from the draft report.
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I The Sierra Club asserts that two of the report's four authors specifically recomend in an appendix against storing spent fuel as i i
proposed for Diablo Canyon. Tr. 148-149; BNL Report, Appendix B, p. 3.
i Sierra Club argues that no mention has been made of the potential for !
fuel cladding fires heretofore and charges that the disclaimer statement in the Board Notification was false and misleading.
Sierra Club further argues that. its proposed contention relates indirectly' to, or' is subsumed under, contentions already in the case,
.and that had it been aware of the contents of the report it would have offered the contention at issue here earlier. Alternatively, Sierra Club addresses the five factors governing admission of late filed contentions under 10 C.F.R 6 2.714 (1987). Finally, Sierra Club argues that language in San Luis Obispo Mothers for Peace v.- N.R.C. , 799 F.2d 1268 (9th Cir.1986), supports admission of the contention and preparation of an EIS. That decision held that the Commission had violated its own regulations when the Commission found no significant hazards ccasiderations in the rerack work and authorized Applicant to proceed with the rerack before hearing. The Court did not reach the National Environmental Policy Act argument presented, but stated in dicta that:
With respect to petitioners' NEPA claims, however, we note that the i site specific environmental assessment was based on a seven year ;
old generic environmental assessment and that no worst case 1 analysis, 40 C.F.R. s 1502.22, appears to have been conducted. We '
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the NEPA documents be resolved in favor of additional 1 documentation.
Id_. at 1271.2 Applicant opposes the motion on two grounds. First, the proposed contention does not succeed in raising a significant safety issue because: (1) the contention is based on a draft generic report not directly related to the Diablo Canyon plants; and (2) the Sierra Club has not~ shown the necessary nexus between that report and the Diablo j Canyon spent fuel pools. Second, the contention is filed late and does 1
not satisfy the requirements for a late filed contention set out in 10 C.F.R. 9 2.714. Supplemental Answer in Opposition to Intervenor's Motion to Admit late Filed Contention. In response to this Board's query, Applicant argues further that a recent case, Vermont Yankee 4 Nuclear Power Corp., 26 NRC (ALAB-869,issuedJuly 21,1987), bars the admission of the contention, because, as in Vermont Yankee, the contention assumes an accident scenario which is beyond design-basis.
Applicant asserts that because such accidents are remote and speculative i 1
events, the National Environmental Policy Act of 1969, 42 U.S. 4321 d 2 We are unsure as to what the Court meant in referring to a " worst cdse analysis", but find the reference not germane to the decision here.
However, we note that the Commission's Statements of Consideration in issuing 10 C.F.R. Part 51, stated that the Commission is not bound by ,
the CEQ " worst case analysis" requirement and would follow its own j policy in that regard. 49 Fed. JRe . 9,352, 9,356 (1984). See also, i
" Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969," 45 Fed. Reg.e 40,101-40,114 (1980).
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(1982), does'not require'the NRC to consider them. Applicant concludes q that the Vennont Yankee case is directly on point.
The Staff also opposes the motion, in the first instance as unrelated to any issue in the proceeding and therefore not subsumed j l
under.an admitted contention. Staff asserts that no admitted contention {
l addresses spent fuel pool failure, as'the proposed contention must ;
assume, and that the proposed contention goes far beyond any environmental issues in the proceeding. Next, Staff argues that the i contention is late filed and does not satisfy the section 2.714 criteria for admission to the proceeding. Staff addresses each of the factors in section 2.714(a)(1) and concludes that the Sierra Club has failed to ;
meet that five pronged test for admitting the contention. Finally, Staff argues that the contention is not litigable because: (1) the report is generic and not directly applicable to the Diablo Canyon !
il plant; and (2) Sierra Club has shown no nexus to connect the generic report to the plant at issue. Like Applicant, Staff also finds the !
Vermont Yankee case controlling and a bar to admitting the contention.
1 APPLICABLE LAW 1 l
Section 2.714 of Title 10 of the Code of. Federal Regulations governs the admission of contentions to our proceedings. It requires that interveners must state "... the bases for each contention set forth L with reasonable specificity." 10C.F.R.92.714(b)(1986). The basis l
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and specificity referred to means that the contention must establish that it applies to the. facility at issue and warrants further exploration. A contention may not attack applicable statutory requirements, nor may it challenge "the basic structure of the Commission's regulatory process." Philadelphia Electric Co., 8 AEC 13, 20-21(ALAB-216,1974). If the issue sought to be introduced is, as here, a generic issue (e.g., involving a subject of general applicability to all reactors), a nexus must be established to connect
- th'e generic issue to the license application in question. Gulf States Utilities Co. , 6 NRC 760 (ALAB-444,1977). The party may not simply point to a newly issued Regulatory Guide or a report on the subject.
Id. at 772.
In the normal course, contentions are to be filed early in the proceeding,10 C.F.R. 9 2.714(b), unless, inter alia, based on newly I
discovered evidence. A contention not filed at the outset of the proceeding is usually termed a " late filed contention," and its 1
admission is subject to the requirements of section 2.714(a)(1). '
Subsection (a)(1)requiresthebalancingofconsiderationsincluding, inter alia, good cause for failure to file on time, other means to protect the intervenor'F interest, assistance in developing a sound record, and whether the proceeding will be broadened or delayed.
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ANALYSIS l'
As noted, the threshold requirement for the' admission of a contention .to the proceeding is basis specifically stated. Sierra Club offers the BNL Report as the basis for the contention that a loss of coolant will cause a fuel rod cladding fire in the Diablo Canyon spent fuel pools.
The BNL Report was prepared under contract with the Nuclear Regulatory Connission as a part of its research and development effort to resolve what has become known as Generic Issue 82. Generally, generic issues are safety concerns that have not yet been resolved by the Connission. They are the objects of an ongoing program of study to quantify and qualify the risk' they may present, if any, to the public h'ealth and safety. Generally a generic safety issue does not describe a regulatory requirement that a license applicant must satisfy unless and until the generic issue is reduced to a regulation in Title 10 of the Code of Federal Regulations. Generic Issue 82 was established as an unresolved safety issue with medium priority in November,1983. Sierra Club Exhibit 1, p. S-1. Generic Issue 82 is, in essence, an assessment of overall risk due to beyond design-basis accidents involving spent fuel pool facilities through the performance of a probabilistic risk assessment. See, generally, the BNL Report.
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Work on various aspects of the safety of spent fuel pool storage j dates back many of years. For example, the BNL Report refers to studies of zirconium in 1955, and to a Sandia National Laboratories study in 1979 titled " Spent Fuel Heatup Following Loss of Water During Storage" (NUREG/CR-0649, March 1979). BNL Report, Summary, fn. I and 5; Section 1.7, reference 3. The BNL Report is but the latest in this ongoing series of studies.
The January '1987 revised draft of the BNL Report contains a number of caveats. The Abstract states in pertinent- part that i
... These estimated risks (of health consequences) are comparable to the estimated risk posed by severe core damage accidents and a) pear to warrant further attention. However, the uncertainty in t11s estimate is large (greater than a factor of 10) and plant specffic features may change the results considerably.
Preventive and mitigative measures have been evaluated qualitatively. It is suggested that for plants with.similar risk
, potential to the two surrogate plants, the one measure which is likely to be effective in reducing risk is utilization of low density storage racks for recently discharged fuel However, before such 3reventive measures are implemented a com)lete 31 ant ,
specific ris( assessment for pool related accidents siould 3e perfonned including a structured fragility analysis of the pool itself.
BNL Report, p. iii (Emphasis added). In estimating the risks in its ,
report, BNL selected "two older-vintage plants" to serve as surrogates, Millstone-1 (BWR) and Ginna (PWR). BNL Report, App. A.
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Sierra Club contends that "two of the authors specifically recommend against the storage of spent fuel in the manner proposed for Diablo Canyon." Sierra Club Motion; Sierra Club Exhibit 1, Appendix B.
Appendix B, is an internal Brookhaven memorandum titled, " Impact of Revised Reaction Rate Equation on the Likelihood of Zirconium Fires in a drained Spent Fuel Pool (Task 5)." The memorandum concludes that a computer formula, or code, developed by Sandia National Laboratories for representing self-sustained oxidation in a drained spent fuel pool is accurate and that the conditional probability for a self-sustaining cladding fire is in the broad range of 16% to 100%. The memorandum's authors then recommend, inter alia, that spent fuel not be stored in high density configuration until it has been stored for two or more years in the old style, low density configuration. The memorandum, as l
an appendix, is a supporting document, partially incorporated in the BNL Report itself and subject to all its caveats.
1 Despite the surface appearance of relationship between the generic BNL Report and the Diablo Canyon spent fuel pools, we find that the contention proffered lacks a nexus with the BNL Report and thus lacks basis for admission to the proceeding. The Sierra Club points to the following facts: (1) the subject of the report is spent fuel pool accidents; (2) the report uses a pressurized water reactor (PWR), Ginna, as a model for some of the parameters in the study and the Diablo Canyon units are both PWRs; and (3) the report concludes that a significant preventive measure to reduce risk would be to use low density storage
4-I racks rather than the high density racks that are the subject of the instant proceedings.
I However, the Sierra Club's proposed contention assumes a total loss i
of coolant in the Diablo Canyon spent fuel pools without specifying any j accident scenario that would cause that loss. In contrast, the BNL Report postulates at least four accident initiating events for Ginna l
that could cause coolant loss, including loss of water circulating {
capability, structural failure of the pool, and cavity seal failures.
BNL Report, Chapter 2. The BNL Report also notes that, while there have been incidents, "there is no case on record of a significant loss of water inventory from a domestic, commercial spent fuel pool." BNL Report, S.I.2., p. S-2. The Sierra Club suggests no mechanism or event that could cause a loss of coolant accident at the Diablo Canyon spent fuel pools. BNL Report, page 2-1 to 2-17.
Secondly, the BNL Report used as a surrogate for pressurized water reactors ("PWRs") the Ginna reactor, a 470 megawatt (electrical) ("MWe")
unit built in 1969. In contrast, the Diablo Canyon units are built to a different scale. They are much larger reactors generating 1086 MWe, were completed 15 years after Ginna in 1984, and were built to much stricter seismic safety criteria. In addition to the substantial differences among individual reactors in the United States and these two l reactors in particular, the technological refinements during that 15 year period were substantial, with particular focus on new safety l
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L requirements following the Three Mile Island event in 1979. _Beyond the i
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. Consequently, there is no link shown between the very generic conclusions drawn in the BNL Report 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 drawing specific conclusions as to individual reactors throughout its length. Compare, BNL Report, at pp.
iii (Abstract); S-2 (no case on record of loss of water inventory); S-3
("... the analyses are greatly simplified."); S-6 ("... risk results are calculated for two surrogate plants and may not be applicable to generic pool types."); 1-5 ("The configurations of spent fuel storage pools vary from plant to plant."); 3-13 (invalidated natural convection calculation); 5-2 (uncertainty of exposure risk due to uncertainty in 1 1
the likelihood of complete draining of the spent fuel pool, estimated to be an order of negnitude in either direction); and 6-3 (" ... plant -;
specific evaluations should be performed before any changes are implemented at a given plant.").
Given these caveats, the very broad based recommendations 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 absence of any suggestion of an accident initiator, we can find no nexus by which the contention might establish a specifically
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stated basis. .Therefore, we must conclude that the contention proffered i -7 p lackstherequisitebasisandmaynotbeadmitthdtothisproceeding under 10 C.F.R. 9 2.714. Gulf States Utiij f ties Co. , 6 NRC 760, supra.
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Nor can we find that the contention lies within the penumbra ofi contentions already admitted to this proceeding. The Sierra Club refers -
to a contention rejected at the outset of the proceeding concerning
" effects of the possible loss of cooling c.apacity on the spent fuel assemblies"'and asserts that the BNL Report nos furnishes tho specificity found lacking et that time. See, Pacific Gas and Electric , ,
g Co., 23 NRC 849, 861-864 (LBP-86-21, 1986). Wehavealreadyfound, 1
above, that the BNL Report, standing alone, fails to supply the necessary basis and specificity, and we note further that the b'NL Report is predicated on the complete loss of all coolant in th_e spent fuel ,
pool, not merely the loss of some indeterminate " cooling capacity". The BNL Report therefore does not supply the basis necessary to 'resurrEc;:
l the contention rejected. Id.. at 863. q l
l Sierra Club's bald assertion that the proposed contentiod falls; within a contention dealing with alternatives to the reracking proposal' l t l and structural failures during the postulated Hosgri earthquate is !
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' simply incorrect. Those contention bases were subsumed within Sierra i Club's Contention II (A) which deals with the possibility of damage to the racks within the pool. ,Id., 864-865. There is no contention in
'- this proceeding dealing with the loss of coolant f rom the spent fuel j I
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pools. The remainder of Sierra Club's argument is tautological. It assumes the loss of all coolant leading to a spent fuel rod cladding es
(: Fire and its consequences, without suggesting how such a fire might occur, and then concludes that such a fire must be considered as an i i issue in this proceeding. Absent some scenario describing how the coolant loss might occur, there is no basis for this Board to assume
- that it will and thus no grounds for admitting any such contention, a
i Finally, we ' note that even if the Sierra Club had postulated an acceptable causative event, the contention, by its terms, is based on a hypothesized event that would be beyond the design-basis of the plant.
In the Vermont Yankee case, Vermont Yankee Nuclear Power Corp., 26 NRC (ALAB-869,issuedJuly 22,1987), the admission of a contention in a spent fuel pool proceeding was reversed. Interveners there alleged that a credible accident scenario would substantially increase the risk to the public health and safety, and, consequently, the license amendment sought amounted to a major federal action that required the Staff to issue an environmental impact statement ("EIS"). The scenario postulated was clearly a beyond design- basis accident, and the i Licensing Board found that no EIS had ever been required for a spent y - fuel pool licensing proceeding. Id., Slip Opinion, at 22.
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The Appeal Board rejected the contention on two grounds. First, it held as a matter of law that the scenario proposed was a severe, beyond 3 design-basis accident not required to be considered by the National r
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Environmental Policy Act, citing San Luis Obispo Mothers for Pt. ace v.
N.R.C., 751 F.2d 1287 (D.C. Cir. 19C4), aff'd. en banc, 789 F.2d 26 (1986), cert, denied, U.S. . 107 S.Ct. 330 (1986). Id., Slip Opinion at 27. Secondly, the case held that the Nuclear Regulatory Cxmission's Interim Po:1cy on " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969", 45 Fed. R,eg. 40,101 (1986) ("the NEPA Policy Statement") does not apply to spent fuel pool proceedings by its terms. The Appeal Board stated:
Thus, before the NEPA Policy Statement is even invoked, there must be some basis for requiring an EIS other than a claim of increased risk from a beyond design-basis accident scenario. In contrast, interveners' claim here is just that: 1.e., the proposed action (expansion of the spent fuel pool) will significantly affect the environment, thereby requiring an EIS, because of the risks of the beyond design-basis accident they have described.
Id., at 28-29 (Emphasis in original). The Sierra Club's position is even weaker than the intervenor in the Vermont Yankee proceeding because the Sierra Club has failed to describe any kind of accident scenario whatsoever. The lack of any nexus between the generic BNL Report ,and the high density reracking of the Diablo Canyon spent fuel pools makes it impossible to accept the Sierra Club's " bootstrap" logic.
Having been unable to discover any nexus between the BNL Report and I
the Diablo Canyon spent fuel pools, we cannot find "... any doubt l concerning the need to supplement the NEPA documents ... ." San Luis Obispo Mothers for Peace v. NRC, 799 F.2d 1268, 1271, supra. Although l
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! l we view the 9th Circuit's language as dicta, we would exercise whatever discretion we have to direct the production of additional ersefronmental documentation, if there were any. doubt in this case. However, we find no m e .,
1 In light of the foregoing, we do not find it necessary to address whether the contention is " late filed" and whether it fails to satisfy the requirements of 10 C.F.R. 5 2.714 for a late filed contention.
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For all the foregoing rea:;ons and based upon consideration of the entire record in this matter, admission of the Sierra Club's contention a ,
concerning loss of cooling accidents ind its request that an EIS be prepared are denied.
. . .< THE ATOMIC SAFETY AND 7 LICENSING BOARD 0 Si ~
B. Pau9 Co1cer, Jr..
ADMIflISTRATIVE JUDGE n.. ~ lC ,rEAA N Glen"n 0. Br~ight' // -
ADMINISTRATIVE JUDGE
,# 4 ,s & ay" bdTry arbour-ADMPCSTktTIVE JUDGE Bethesda, Maryland yp September 2, 1987. l l
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