ML20236V047

PG&E Brief in Response to Sierra Club Appeal of Licensing Board 870902 Order & 870911 Initial Decision.* Brief Contests Argument That Licensing Board Erred in Refusing to Admit late-filed Contention.Certificate of Svc Encl

ML20236V047
Person / Time
Site:	Diablo Canyon
Issue date:	11/25/1987
From:	Norton B PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#487-4951 OLA, NUDOCS 8712040053
Download: ML20236V047 (34)

Text

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• h?N?c 1 UNITED STATES OF AMERICA '87 W 30 P3 01 2 NUCLEAR REGU' ATORY COMMISSION OFRCE of dcar u.,;y 3 $S$ch"1 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4

5 .._

)

6 In the Matter of ) Docket Nos. 50-275 OLA

) 50-323 OLA 7 PACIFIC GAS AND ELECTRIC COMPANY )

) (Spent Fuel Pool Reracking) 8 (Diablo Canyon Nuclear Power Plant )

Units 1 and 2) )

9 ) November 25, 1987 10 11 PACIFIC GAS AND ELECTRIC COMPANY'S BRIEF IN RESPONSE 12 .

! TO THE SIERRA CLUB'S APPEAL OF THE 13 LICENSING BOARD'S SEPTEMBER 2. 1987. ORDER 14 AND SEPTEMBER 11. 1987. INITIAL DECISION 15: ,

16 !,

17 l 18 I H0HARD V. GOLUB RICHARD F. LOCKE 19 Pacific Gas and Electric Company P. O. Box 7442 20 San Francisco, CA 94120 (415) 781-4211 21 BRUCE NORTON 22 c/o Richard F. Locke P. O. Box 7442 23 San Francisco, CA 94120 (415) 972-6616 24 Attorneys for 25 PACIFIC GAS AND ELECTRIC COMPANY 26 8712040053 871125 PDR ADOCK 05000275 G PDR h

}9

1 1

1 TABLE OF C0NTENTS 2

EASul 3

1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 1 4

5 II. STATEMENT OF THE CASE ................... I 6

III. ISSUES PRESENTED FOR REVIEW ................ 8 7

B IV. OVERVIEH AND LEGAL STANDARDS FOR REVIEW .......... 8 9 A. Requirements for Admission of Contentions . . . . . . . 8 10i B. NEPA Requirements . . . . . . . . . . . . . . . . . . . 11

- 11 ll; j V. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 15 4 A. The Licensing Board Properly Refused to Admit a 13.I Late-Filed Contention Based on the BNL Report j and to Direct Preparation of an EIS . . . . . . . . . . 15

1. The Late-Filed Contention Failed to Properly 15,1 Raise a Significant Safety Issue Applicable to the Diablo Canyon Reracking License Amendments . .

15 16 :l  !

p 2. The Licensing Board Properly Rejected 17 . ' Intervenor's Request to Direct Preparation of an EIS .................... 21 l

B. The Licensing Board Properly Ruled Against 19 l' Intervenor on Its Contention I(B)(7) ......... 25 20, VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 25 21 22 23 24 25 26 i

1 TABLE OF AUTHORITIES 2

Paae(s) 3 4 Federal Casei 5 BEL v. E ,

502 F.2d 424, 428 (D.C. Cir.1974) . . . . . . . . ...... 18 6

Citizens for Safe Power. Inc. v. E 7 524 F.2d 1291,1297 (D.C. Cir.1975) . ............ 10 8 Florida Power and Liaht Co. v. Lorion, 470 U.S. 729, 742 n.10 (1985) ................ 18 9

Massachusetts v. MLii, 10- 716 F.2d 946, 948 (1 Cir. 1983) ............... 13 11 Peoole Aaainst Nuclear Enerav v. E, '

678 F.2d 222, 234 (D.C. Ctr 1982),

12 ;, rev'd on other arounds sub nom.,

t Metropolitan Edison Co. v. Peoole 13 ,l j Against Nuclear Enerav, 460 U.S. 766, 103 S. Ct. 1556 (1983) .................... 13 14;p j l

San Luis Obisoo Mothers for Peace v. E, 15; 751 F.2d 1287,1300-1301,1320 (D.C. Cir.1984);

aff'd in part en banc, 789 F.2d 26 (1986); cert. den.,

16!i U.S. , 107 S. Ct. 330 (1986) ............. 21,23 l 17 Susauehanna Vallev Alliance v. Three Mile Island, j 619 F.2d 231, 239 n.9 (3 Cir.1980) ............. 25 i Harm Sorinas Dam Task Force v. Gribble, 19- 621 F2.d 1017,1024 (9 Cir.1980) .............. 13 20' NRC Cases r

21 '

Carolina Power and Licht Co.,

22 (Shearon Harris Nuclear Power Plant) 23 ALAB-852, 24 NRC 532, 545, n.60 (1986) . . .......... 9 24 Commonwealth Edison Co.,

(Byron Nuclear Power Station, Units 1 and 2) 25 LBP-80-30, 12 NRC 683, 686-690 (1980) ............ 17 26

- ii -

l l

l I

1 Table of Authorities (continued) l 3 Paae(s) 4 NRC Cases (continued) i I

5 Duke Power Co., 1 (Catawba Nuclear Station, Units 1 and 2) ]

6 l CLI-83-19,17 NRC 1041,1045 (1983) ......... ... . 9 l 7 )

Houston Liahtina & Power Co., l 8 (Allens Creek Nuclear Generating Station, Unit 1) l 9l ALAB-590, 11 NRC 542, 547-548 (1980) . ...... .. .. . . 8 10, Mississioni Power & Liaht Co.,

i (Grand Gulf Nuclear Station, Units 1 and 2) 11 j ALAB-130, 6 AEC 423, 426 (1973) . ...... . ..... .. 8

! Pacific Gas and Electric Comoany, 13 (Diablo Canyon-Nuclear Power Plant, Units 1 and 2)

LBP-86-21, 23 NRC 849 (1986) . . . ..... ... . . .. . . 2,10 14 l: LBP-87-24, 26 NRC (September 2, 1987) ... .. . . . . . 15,18,23,24 15; LBP-87-25, 26 NRC (September 11, 1987) . ..... ... . 10,14,25,26 ALAB-644, 13 NRC 903 (1981) ... ........ . ... . . 19 16 ;.! ALAB-728, 17 NRC 777, 805 (1983) . ........ . .... . 9

! ALAB-877, 26 NRC (October 8,1987) . ... .. .... .. 16,19,22 17 l;.

- Philadelphia Electric Comoany, 18: l (Limerick Generating Station, Units 1 and 2) i 19' ALAB-819, 22 NRC 681 (1985) ... ... ... ... ... .. 9 ALAB-845, 24 NRC 220, 230, 235, 242 (1986) . . . ...... . 8,17 20, CLI-86-5, 23 NRC 125 (1986) ... .... .. ... . . . .. 9,21 21 Vermont Yankee Nuclear Power Coro.,

! (Vermont Yankee Nuclear Power Station) l 22 ALAB-869, 26 NRC (July 21, 1987) ...... .. . . .. 6,21,23,24,

,- 23 25 ALAB-876, 26 NRC (October 2,1987) ...... . .. .. 21 25 26

- iii -

i

i 1

1 Table of Authorities (continued) 2 3 Pace (s) 4 Statutes 5 Atomic Enerav Act of 1954, as amended 42 U.S.C. 2011 11 Agg. . . . . . . . . . . . . . . . . . . . . 10,11 6

National Environmental Policy Act of 1969, 7 42 U.S.C. 4321 11 Agg. . . . . . . . . . . . . . . . . . . . . Passim 8 Nuclear Haste Policy Act of 1982, 42 U.S.C. 10101 31 Agg. ................... 11

'10 ' Federal Reaister 11 45 End. Egg. 40101 (1980) .................... 22 51 End. Rag.-24954 (1986) .................... 15 12l 51 End. Egg. 29974 (1986) .................... 15 i

13; l Regulations 14:l 1 15 3. 10 CFR 2.714 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

'1 10 CFR 2.786 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

' 16 ,! 10 CFR 50 31 igg. ........................ .

9,20,21 10 CFR 51 11 11g. ........................ 12,13,23 i 17l

, 10 CFR 100, App. A . . . . . . . . . . . . . . . . . . . . . . . . 19,20 i

18l Other i

19' Severe Accidents in Spent Fuel Pools in Support of Generic i Safety Issue 82, NUREG/CR-4982, BNL-NUREG-52093 20 July 1987 .......................... Passim 21 22 23 24 l 25 26

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l 1 I. INTRODUCTION 2 Following the issuance by the Atomic Safety and Licensing Board 3 (" Licensing Board") of an Initial Decision'on September 11, 1987, (including

-4 its September 2, 1987, Order) authorizing license amendments to permit )

5 installation of high density spent fuel racks at the Diablo Canyon Nuclear-6 Power Plant, Sierra Club, Santa Lucia Chapter (hereafter "Intervenor") filed 7 exceptions and a brief with the Atomic Safety and Licensing Appeal Board 8 (" Appeal Board"). Intervenor argues that the Licensing Board erred in finding 9 that alternatives to the reracking had been adequately considered and in 10 refusing to admit a late-filed contention premised upon a severe, beyond II design basis accident scenario discussed in a research report prepared by 12 Brookhaven National Laboratory ("BNL Report" or " Report") and to direct the I3j NRC Staff to prepare an Environmental Impact Statement ("EIS") based upon the 14 BNL Report.

15 Pacific Gas and Electric Company ("PG&E" or " applicant") supports the i

16 h Licensing Board's decision on appeal because the decision is based upon I7 correct interpretations of applicable law and the substantial weight of the 18 evidence. Accordingly, PG&E believes that Intervenor's appeal should be 19 denied.

20 f

21 II. STATEMENT OF THE CASE 22 Procedural and Factual Backaround 23 ,

On October 30, 1985, PG&E requested operating license amendments for 24 Diablo Canyon Nuclear Power Plant, Units 1 and 2 ("Diablo Canyon"), which .

25 would authorize PG&E to increase the spent fuel storage capacity at Diablo 26 Canyon. On January 13, 1986, the Nuclear Regulatory Commission ("NRC" or

I l

I " Commission") published a notice in the Federal Reaister regarding the l~

2 proposed amendments.1# In response to this notice, the San Luis Obispo 3 Mothers for Peace ("MFP"), Intervenor, and Consumers Organized for Defense of I 4 Environmental Safety (" CODES") filed petitions for leave to intervene on 5 February 7.- 10, ad 12,1986, respectively.

6 After a May 13, 1986, prehearing conference before the Licensing 1

, 7 Board, Intervenor, MFP, and CODES were admitted as parties. Various 8 contentions to be heard by the Licensing Board were also admitted. I 9 (L8P-86-21, 23 NRC 849 (1986)). The admitted contentions dealt generally with 10i the seismic design adequacy of the proposed high density racks and whether 11UllPG&E had given adequate consideration to alternatives to the high density d

12 reracking. l 13 ;. Meanwhile, the NRC published its Determination of No Significant 14 Hazards Consideration, the Safety Evaluation Report, and the Environmental 15 Assessment (EA), and granted PG&E the requested license amendments authorizing i

i 16 S reracking of the spent fuel pools. The NRC determination and the amendments 17lj allowed PG&E to install the new high density racks prior to a hearing on the 18! Intervenor's contentions.2/

19l '

After PG&E commenced installation of the high density racks in the 20 Unit 1 spent fuel pool, the MFP and Intervenor sought from the Commission a 21 stay of the effectiveness of the reracking authorization on June 16, 1986.

22 23 1/ " Consideration of Issuance of Amendments to Facility Operating Licenses 24 DPR-80 and DPR-82 for Diablo Canyon Nuclear Power Plant, Units 1 and 2 Respectively, and Proposed No Significant Hazards Consideration 25 Determination and Opportunity for Hearing" (51 Eed. Egg. 1451, (1986)).

26 2/ 51 Federal Reaister 20725 (June 6, 1986).

l' I

1 Shortly thereafter, on June 18, 1986, they filed a Petition for Review and an 2 Emergency Hotion for Stay Pentiing Review with the Ninth Circuit Court of 3 Appeals (" Court"). On July 2, 1986, an interim order was issued by that Court 4 which prohibited PG&E from using the high density racks until the Court 5 reached a final decision. On July 22, 1986, the Commission issued an order 6 that restricted PG&E to using only 270 storage spaces when the high density 7 racks are installed, even if the Court should reverse its interim order, until 8 hearings were completed.3I 9 On August 28, 1986, the Licensing Board established a schedule for 10; discovery and hearing. That schedule set alternate dates for hearing of ,

l 11ljl '

January 15, 1987, and March 26, 1987, dependent upon whether summary

]

12 disposition motions were filed. This schedule was later modified on December t

13,1 1, 1986, to permit additional discovery and provided for a hearing beginning

{'

14 February 2, 1987.

15 The Court issued a decision on Septeinber 11, 1986, that reversed the 16 ' Commission's grant of authority to install the new high density racks and 17 ,li' prohibited their use until the Commission held hearings on the amendment 18 requests.S#

19' On December 15, 1986, the NFP and Intervenor flied a joint motion 20: for summary disposition. On December 10, 1986, and January 13, 1987, 21 respectively, CODES and MFP withdrew from the proceeding. On

[

22 Ill 23 l 24 l l 31 CL1-86-12, 24 NRC 1 (1986).

$/ San Luis Obisoo Mothers for Peace v. E C, 799 F.2d 1268, (9th Cir. l 26 1986). l 1

l l

t I January 28, 1987, the Licensing Board denied the motion and set a new hearing 2 date of March 9, 1987.

3 On February 23, 1987, the NRC Staff informed the Licensing Board 4 that'due to recent developments regarding its evaluation of multi-rack 5 impacts, it could not file testimony on the previously agreed date of 6 February 24, 1987, nor would it be prepared to proceed to hearing on 7 March 9, 1987. Following a conference call with the parties on April 8, 1987, 8 the Licensing Board issued an order on April 9, 1987, setting a discovery 9 completion date of May 27, 1987, and a hearing date of June 16, 1987.

10 A Licensing Board hearing was held on June 16-18, 1987, in Avila Il At the l Beach, California, on the remaining contentions of Intervenor.

12 L hearing, Intervenor sought to raise a new contention regarding the BNL Report, 13 [!dated January 1987, entitled "Beyond Design-Basis Accidents in Spent Fuel 14 " Pools (Generic Issue 8?)".E# (Tr. at 126-133, 142-149) The Licensing Board  !

1 15'

'l 16 P 3/ The BNL Report was provided to the parties and the ASL8 in BN 87-05, issued in late March 1987. The final report, " Severe Accidents in I7 ; l' Spent Fuel Pools in Support of Generic Safety Issue 82 " NUREG/CR-4982 i (July 1987) was sent to all parties as Board Notification 87-13 on 18! August 28, 1987.

19 A generic safety issue is a technical issue identified by the NRC which may be applicable to the nuclear industry as a whole or to all nuclear 20 reactors of a certain type. In 1978, the NRC published NUREG-0410, which described its generic issues investigation program, in response 21 to the reporting requirements of Section 210 of the Energy Reorganization Act of 1974 (P.L.95-209). At that time, the NRC had 22 identified 130 generic 1: sues. The BNL Report is part of an ongoing NRC review of Generic Safety Issue 82. To place matters in 23 perspective, the NRC also in 1978 identified 17 of these generic issues as " unresolved stfety issues" meeting the requirements for reporting to l 24 Congress under Section 210 of P.L.95-209. The NRC defined unresolved 4 safety issues as:

25 An Unresolved Safety Issue is a matter affecting a 26 number of nuclear power plants that poses important l

1 took the matter under advisement. At the close of hearing on June 18, the 2 Licensing Board directed that Intervenor file a motion in writing and that the 3 other parties file responses to the motion. (Tr. at 630) 4 On' June 29, 1987, Intervenor filed its motion to include issues ,

5 raised in the BNL Report as a contention and to direct the Staff to prepare an 6 EIS. PG&E and the NRC Staff flied answers opposing the motion on 7 July 10, 1987. By order dated July 31, 1987, the Licensing Board directed the 8

9 questions concerning the adequacy of existing safety requirements for which a final resolution has not yet 10 been developed that involves conditions not likely to be acceptable over the lifetime of the plants it affects.

Generic Safety Issue 82 was identified as a generic issue warranting 12 L examination for two reasons. First, due to the absence of I reprocessing, onsite storage capacities of spent fuel pools were being 13, expanded through the use of high density storage configurations which

! resulted in larger pool inventories, greater pool heat loads,'and less ,

14 distance between adjacent assemblies. Second, laboratory studies had  !

I suggested the possibility of fire propagation between assemblies in an  ;

15; air-cooled environment.

16 ': Significantly, Generic Safety Issue 82 was not included by the NRC as an unresolved safety issue. In addition, in 1983 the NRC prioritized 17 H- the generic issues into three categories based on an evaluation of the

! safety significance, consequence estimate, cost estimate, and 18! value/ impact assessment, in NUREG-0933, "A Prioritization of Generic

! Safety Issues." The purpose of the priority ranking was to assist in 19' the timely and efficient allocation of agency resources to those safety issues that had a high potential for reducing risk and in decisions to 20 remove from further consideration issues that have little safety significance and held little promise of worthwhile safety enhancement.

A high priority issue was scheduled for near-term resolution by the 22 NRC. A medium priority meant that no safety deficiency demanding high-priority attention was involved, but that there was believed to be 23 a potential for safety improvements or reductions in uncertainties of  !

analyses that might be substantial and worthwhile, though less so than 24 for items assigned a high priority. Generic Issue 82 was categorized l as a medium priority item. It is important to note that the BNL Report 25 concurs in the continued identification of Generic Safety Issue 82 as a medium priority item in connection with further research and evaluation 26 (BNL Report at xxi). >

I parties to file additional briefs by August 14, 1987, discussing the 2 applicability of the recent decision of Vermont Yankee Nucitar Power 3 Corporation (Vermont Yankee Nuclear Power Station) ALAB-869, 26 NRC .

4 On September 2,1987, the Licensing Board issued a Memorandum and 5 Order denying Intervenor's Motion to admit a late-filed contention and to 6 require the NRC Staff to prepare an EIS.6/ Then, on September 11, 1981, the 7 Licensing Board issued its Initial Decision (" Decision") authorizing the 8 reracking amendments.2/

9 'On September 16, 1987, Intervenor filed with the Appeal Board an 10 appeal of. the Licensing Board's September 2,1987, Order. In an order issued II September 18, 1987, this Board dismissed the appeal.as an impermissible 12 [ interlocutory appeal.II I3 ,

On September 24, 1987 Intervenor filed an appeal of the Licensing 14 Board's Order and Decision of September 2,1987, and September 11, 1987, ISl respectively,II together with a Request for Stay of the September 11, 1987, 16 ! Decision. On October 8, 1987, this Board issued a memorandum and order II

///

18 19 20

~

Il LBP-87-25, 26 NRC __ (1987).

21 II ALAB-873, 26 NRC __ (1987).

22 I

2/ Intervenor appealed the September 2,1987, decision in its entirety and 23 ,

that portion of the September 11, 1987, Initial Decision regarding denial of its Contention I(8)(7) dealing with PG&E's failure to 24 consider adequately alternatives to the raracking. Intervenor Notice of Appeal at 2-3. Intervenor Request for Stay, p. 2, fn. 4.

25 Significantly, Intervenor did not appeal the denial of its remaining contentions which challenged the seismic design adequacy of the 26 proposed high density racks.

i 1 denying the stay and dissolving the interim stay previously issued on 2 September 25,1987.E#

3 On October 15, 1987, the Staff issued a Supplement to the Safety 4 Evaluation and the Environmental Assessment relating to the reracking,U #

5 and on October 20, 1987, the Staff issued License Amendments 22 and 21 to the 6 Diablo Canyon Units 1 and 2 operating licenses, respectively.

7 Intervenor filed a request on October 20, 1987, with the Commission 8 for a stay of the Licensing Board's September 11, 1987 Decision. The stay 9 request was denied by the Commission on October 26, 1987. In its Order, the 10 l Commission declined to grant an interim stay pending application to the Court, i

11 II i noting Intervenor's unexplained delay in seeking a stay from the Commission 12 :'iafter the Appeal Board's denial of a stay on October 8, 1987. Intervenor l

13 subsequently filed a Brief in Support of Appeal ("Brief") with this Board on 14 October 26, 1987, in accordance with 10 CFR 2.786. j 15i On October 30, 1987, Intervenor filed another Petition for Review 16 ' and an Emergency Motion for Stay Pending Review with the Court. Intervenor 17 sought a stay of the Licensing Board's September 11, 1987 Decision and the 18l effectiveness of Amendments 22 and 21, which had been issued by the NRC Staff 19 on October 20, 1987, for Units I and 2, respectively. The motion for a stay 20 was denied by the Court on November 13, 1987. A joint motion to hold the 21 court proceedings in abeyance pending conclusion of the Commission's ongoing 22 administrative proceedings has been filed by the parties with the Court.

23 fff 24 25 10/ ALAB-877, 26 NRC (1987).

26 n/ 52 Federal Reaister 38977 (October 20, 1987).

I III. ISSUES PRESENTED FOR REVIEW 2 The following issues are posed by the Intervenor's appeal:

3 A. Whether the Licensing Board correctly denied the admission of 4 Intervenor's late-filed contention which was based on 5 information contained in the BNL Report regarding a severe, 6 beyond design basis accident; 7 8. Whether the Licensing Board properly refused to require the NRC  ;

8 Staff to prepare an EIS based on the BNL Report; 9 C. Whether the NRC's National Environmental Policy Act of 1969 10; ("NEPA") documents, including the Supplemental EA, are Il deficient under NEPA; and 12 D. Whether the Licensing Board correctly determined that the ,

13 j, alternatives to the reracking were adequately considered.

14 IV. OVERVIEW AND LEGAL STANDARDS FOR REVIEW i 15 A. Requirements for Admission of Contentions 1 16 ? NRC practice makes it clear that a party must set forth the bases 17 l. for each contention with reasonable specificity. Houston Liahtina & Power Co.

I8' (Allens Creek Nuclear Generating Station, Unit 1) ALAB-590, 11 NRC 542, 19 547-548 (1980); Mississioni Power & Licht Co. (Grand Gulf Nuclear Station, 20 Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). In this context, specificity II must be supplied in the contention and not be left to be developed at the l 22 hearing. Philadelphia Electric Comoany (Limerick Generating Station, Units 1 23 and 2), ALAB-845, 24 NRC 220, 235 (1986). While there is no hard and fast 24 formula for determining what constitutes " bases" and " specificity," it is 25 clear that a contention should "... put the parties on notice of what issues 26 they will have to defend or oppose, and to assure the issues raised are

Q

-I appropriate for litigation in the particular proceeding." Limerick, id. at 2 230. In applying the foregoing criteria to each case, Licensing Boards must 3 exercise appropriate judgments, keeping in mind the underlying purpose of 4 these requirements. Overlaying the application of these general criteria are 5 certain matters which the Commission has determined are categorically exempted 6 from litigation, sai., Philadelphia Electric Co. (Limerick Generating Station, 7 Units 1 and 2), CLI-86-5, 23 NRC 125 (1986), affirmina on this noint ALAB-819, ,

i 8 22 NRC 681 (1985) (no litigation in safety or environmental hearings of plant i 1

8 specific design alternatives for the mitigation of severe accidents);

i 10' 10 CFR 50.33 (financial qualifications in certain cases); 10 CFR 50.44 II (aspects of hydrogen mitigation). Cf. Pacific Gas and Electric Co. (Diablo 12 L Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 805 (1983).

I 13 i, Once contentions are admitted, they limit the scope of what is to be 14 adjudicated during the proceeding and what may then be argued on appeal.

Thus, an intervenor is constrained by the " literal terms" of the contentions 15ll 16 9 which have been admitted. Carolina Power and Licht Co. (Shearon Harris l 17 l-Nuclear Power Plant), ALAB-852, 24 NRC 532, 545, n.60 (1986); Limerick, inn I8 i at 242.

I II' Hith regard to late-filed contentions, an intervenor must meet the 20 requirements of 10 CFR 2.714(a). Where a late-filed contention purportedly 21 proceeded from a recently issued document not previously'in the public's 22 possession, an interve,wr must still satisfy all five factors enumerated in 23 10 CFR 2.714 to justify adm!ssion of a contention. Duke Power Co. (Catawba 24 Nuclear Station, Units i and 2) CLI-83-19,17 NRC 1041,1045 (1983).

25 In assessing the safety implications of Intervenor's proferred late 26 contention, one must keep in mind that in the context of licensing nuclear I

1

I I plants under the Atomic Energy Act ("Act"), 42 U.S.C. 2011 it ita., the Act 2 does not require an answer to every theoretical scientific possibility as long 3 as a determination of reasonable assurance of the protection of the public 4 health and safety can be made. Moreover, "[a]bsolute or perfect assurances 5 are not required by the [Act] and neither present technology nor public policy 6 admit of such a standard." Citizens for Safe Power. Inc. v. E C, 524 F.2d 7 1291,1297 (D.C. Cir.1975).

8 In the Licensing Board's Memorandum and Order dated June 27, 1986, 9 each of the contentions originally proferred for hearing by Intervenor and j 10 other parties were reviewed in detail when the Licensing Board reached its 11 decision as to which contentions were admissible. Pacific Gas and Electric 12 Cn., 23 NRC 849 (LBP-86-21, 1986). However, neither the admitted contentions 13,, nor any of the originally proferred contentions which were rejected raised any 14 NEPA issue that is now being challenged by Intervenor in its Brief. For 15 instance, the contentions admitted and ultipetely decided by the Licensing d

16 l Board included the following allegations: (1) " relevant data on six 17; li designated subjects was not contained in the license amendment application and 18 I subsequent communications," (2) "the license amendment application failed to 19 l' consider certain relevant conditions, phenomena and alternatives necessary to 20 L verify health and safety and environmental claims as they relate to four 21 items," and (3) " collisions between the racks and the pool walls during an 22 earthquake will cause damage to the racks and spent fuel assemblies..." as 23 likewise will " collisions between groups of racks with each other and the pool 24 walls." LBP-87-25 at 5-7. None of these admitted contentions refers to 25 Intervenor's position regarding the preparation of an EIS, the alleged 26 deficiency of NRC's NEPA documents, or the NRC's alleged violation of federal

~

i I statutes in failing to consider adequately other alternatives.U I ')

1 2 Similarly, none of the rejected contentions relates to matters now being 1 3 raised by Intervenor in its Brief. Id.

4 B. NEPA Requirements ~

5 .Intervenor generally raises the following issues in support of its 6 argument that' the NRC's authorization of the license amendments violated the 7 Act, NEPA,'and the Nuclear Maste Policy Act of 1982 ("NNPA"): (1) the NRC 8 must prepare an EIS for the proposed reracking at Diablo Canyon based upon the I BNL Report; (2) the NRC's NEPA documents, including the recent supplement to i

10: the Environmental Assessment (" Supplemental EA"), are still deficient under II NEPA; and (3) the NRC did not adequately review the alternatives to the 12 proposed reracking. Brief at 5-26. It is evident, from an examination of the I3 j.. record below, that while the first issue was raised with the Licensing Board 14' by Intervenor in its motion to admit a late-filed contention based on the BNL 15 [ Report Intervenor failed to raise issues (2) and (3) before the Licensing 16 0 Board even though the opportunity existed for it to do so.

Ub Under NEPA,'an EIS is required as a precondition to any major I8 federal action that may have a significant impact on the environment.

19 42 U.S.C. 4332(2)(c). In this case, pursuant to the Commission's regulations 20, (10 CFR 51 ti ltg.),- the NRC Staff prepared an EA. Staff Exhibit 2. In that 21 EA, the Staff concluded that the proposed reracking did not involve any 22 23 g/, Intervenor relies heavily on the ninth Circuit Court of Appeals admonition that any doubt concerning the need to supplement the NEPA 24 documents be resolved in favor of additional documentation. Curiously, however, Intervenor sat idly by and never sought to have a NEPA 25 contention admitted below regarding the inadequacy of the EA or the need for an EIS until the hearings were concluded and it filed its 26 motion based upon the BNL Report.

l:

I significant radiological or non-radiological impacts and, hence, did not 2 constitute a significant impact on the environment. Staff Exhibit 2, EA 3 at 12. Accordingly, the Staff determined pursuant to 10 CFR 51.31 that the 4 reracking did not require the preparation of an EIS.U I As noted above, 5 Intervenor did not seek to admit a contention relating to the issue of the 6 need for the NRC Staff to prepare an EIS until it filed its motion dealing 7 with the admission of a late-filed contention based on the BNL Report with the 8 Licensing Board on . lune 29, 1987. In that motion Intervenor argued inter alla 9 that an EIS had to be prepared'and relied on the BNL Report as the sole basis 10 II'lforitsassertionthatthererackingamendmentinvolvedasignificant environmental impact.

I2 Separately, Intervenor contended that the BNL Report independently 13 supported the admission of a safety contention regarding the possibility of 14' zircaloy cladding fires in the Diablo Canyon spent fuel pools. As will be 15 demonstrated seriatim, Intervenor is substantively and legally incorrect in 16 this regard.

II- Intervenor is also wrong with respect to the adequacy of NRC's NEPA-I8 documents. The original and supplemental Diablo Canyon Environmental II Assessments point out that the expansion of the storage capacity of the fuel 20 pools "will not create any significant additional radiological effects or 21 measurable non-radiological environmental impacts." Staff Exhibit 2, EA 22 at 11; Supplemental EA at 8.

23 fff 24 25 n/ Significantly, Intervenor did not challenge this finding before the

~ Licensing Board. Rather, Intervenor challenged only the adequacy of 26 PG&E's consideration of alternatives.

4 1 As noted above, NEPA only requires that an EIS be prepared if a 2 proposed action will sionificantiv affect the environment (42 U.S.C.

3 4332(2)(C)). Clearly, the effects noted by the Staff in its EA are not 4 significant. More importantly, Intervenor did not present any evidence to 5 refute the Staff conclusions in the hearing below. In short, the conclusions 6 set forth in the EAs that the radiological and non-radiological effects of the 7 fuel pool reracking are not significant remain unchanged. Since the Staff has 8 complied fully with its NEPA regulations, it has satisfied its obligations 9 under NEPA and no additional EIS or supplement thereto is required.

10 Nor is there any duty to supplement an EIS (EA) whenever new 11 information becomes available. Egg, Peoole Aaainst Nuclear Enerav v. H!!C, 678 12; F.2d 222, 234 (D.C. Cir.1982), rev'd e othe.t arounds Hh DM., Metropolitan l

13 Edison Co. v. Peoole Acainst Nuclear Enerov, 460 U.S. 766, 103 S. Ct. 1556 14 ! (1983). On the contrary, the information must represent significantly new 1S: circumstances for it to warrant supplementation of a final EIS. I.d., citing 16 l, with approval Harm Sorinos Dam Task Force v. Gribble, 621 F.2d 1017,1024 O 17 Cir. 1980). Further, the Commission's regulations provide that a final EIS 18 need be supplemented only if there are " substantial changes in the proposed II' action" or there are "significant new circumstances or information relevant to 20 environmental concerns." 10 CFR 51.92. Neither has occurred here. Moreover, 21 an EIS need not be supplemented where it already " describe (s) the likely 22 environmental harms well enough to allow the (agency) to make an informed 23 decision." Massachusetts v. HAli, 716 F.2d 946, 948 (1 Cir.1983). Here, the

! 24 Staff's EAs document the information necessary to assess the environmental l

25 effects of a routine fuel pool reracking, a task the NRC has accomplished a 26 number of times. This is all the law requires.

I b

1 Intervenor also alleges the HRC violated NEPA by not adequately 2 reviewing the alternatives to the proposed reracking. Brief at 23. Once 3 again, notwithstanding the fact that Intervenor had not raised this issue 4 before the Licensing Board, the EA and Supplemental EA show the NRC did in

'5 fact consider several alternatives. EA at 2-5; Supplemental EA at 5. NEPA 6 does not require the NRC to include' detailed data or analyses in EAs to 7 justify the agency's conclusions. However, while Intervenor asserts without '

8 substantiation that the EAs are inadequate to provide " factual support for the 9 [NRC) conclusion" (Brief at 25), both the NRC Staff and PG&E presented expert

- 10i testimony as well as technical evidence at the Licensing Board hearing to 11 support the conclusions documented in the EA. LBP-87-25 at 32-34. (Cleary l

12 ff. Tr. 604 at 1-7; Shiffer, it_11, ff. Tr.179 at 28-30) It should be noted 13 that even though Intervenor's argument below challenged only PG&E's 14 consideration of alternatives, the Licensing Board, in rejecting that 15 argument, observed that "The [NRC) Staff review [of alternatives) essentially i

16 agreed with the PG&E position." LBP-87-25 at 11.

I 17- Finally, in the context of spent fuel rerackings, the Staff and the i '

18 Commission are not writing on a clean slate. Rather, there have been over a hundred similar requests that have been considered. The alternatives to IIl 20' reracking are well known'to the Staff and the Commission. Indeed, the use of 21 high density racks as the preferred alternative for obtaining additional spent 22 fuel storage capacity has been detensined in practically every instance to be 23 thesafestandmostcost-effectiveshthod. To our knowledge, the only 24 exceptions have involved situations where spent fuel pools have been filled to 1

25 capacity after installation of high-density racks and the utility necessarily 26 ' had to resort to another method of spent fuel storage in order to provide for

I I

l l .

l I the orderly and continued operation of the facility; 1 A , modular dry cask 2 storage (at the H. B. Robinson Steam Electric Plant and the Surry Power 3 Station). 51 Ed. Reg. 29974 and 51 fid. Reg. 24954.

4 PG&E will now address each of the specific allegations raised in 5 Intervenor's Brief: (1) the contention on zircaloy cladding fires should have 6 been admitted; (2) an EIS is required based upon the BNL Report; and (3) the 7 Licensing Board's rejection of Contention I(B)(7) was incorrect.

8 V. ARGUMENT 9 A. The Licensing Board Properly Refused to Admit a Late-Filed Cor u tion Based UDon the BNL Report and to Direct Preparation of an EIS

1. The Late-Filed Contention Failed to Properly II Raise a Significant Safety Issue Applicable to the Diablo Canyon Rerackina Licensino Amendmenti g

I Hith regard to Intervenor's safety contention premised on the BNL g Report, in its September 2,1987, Order, the Licensing Board found that the pr p sed conter, tion lacked a nexus with the BNL Report and, hence, lacked a  ;

15i 16

! basis for admission to the proceeding.E I The Licensing Board went through an analysis of the BNL Report and ruled that it failed to provide the 17 necessary support to warrant the admission of the contention proffered by 18, j9 Intervenor. In that analysis, the Licensing Board pointed out that Intervenor had failed to suggest a "... mechanism or event that could cause a loss of 20 e olant accident at the Diablo Canyon spent fuel pools...." LBP-87-24, slip 21 op. at 10. While this Board professed some disagreement with the Licensing 22 23 24 M/ The basis and specificity requirements for a contention are intended to put the parties on notice of what issues they will have to defend and 25 to assure that issues which are raised are appropriate for litigation in a particular proceeding. Philadelphia Electric Co. (Limerick 26 Generating Stations Units 1 and 2), ALAB-845, 24 NRC 220, 230 (1986).

I Board's rationale in denying the contention when it. ruled that Intervenor was 2 not entitled to stay pending review, it indicated its disposition to affirm 3 the underlying correctness of the Licensing Board's decisico; 1 A , the l L

4 necessary requirements for admission of a contention were not met. ALAB-877, 5 slip op. at 8-9.

I Intervenor asserts that the late-filed contention should have been 7 admitted because sufficient basis and specificity had been established, and 8 that a zircaloy cladding fire was a reasonably foreseeable event. However, 9 Intervenor fails on both arguments.

I 10' First, to place the BNL Report in proper perspective, it is "an i

II initial attempt to characterize the radiological risks posed by the storage of 12 spent reactor fuel at commercial reactor sites in the United States" using a d

I3 y probabilistic risk assessment (PRA) methodology. Intervenor has taken the 14 term " probability" and attempted to make it synonymous with the word 15: " probable." It has taken events with a highly speculative probability of one 16 in a million and redefined their likelihood of occurrence as a certainty. The I7l; results of the BNL work "have additional uncertainty, beyond those 18 characteristic of traditional risk assessment studies for reactor operations, II which is associated with the novel aspects of the phenomenology and the 20 limitations of the data base." (BNL Report at xiii.)

21 The'BNL Report contains numerous caveats and discussions of 22 uncertainty as quoted below:

23 The uncertainty in risk is dominated by the estimated 24 uncertainty in the likelihood of the loss of pool integrity due to beyond design basis seismic events.

25 ... It is not clear that these uncertainty ranges are directly applicable to other plants because the 26 plants selected for detailed study were chosen

I specifically for their perceived vulnerability to seismic events after an extensive screening process.

2 (BNL Report at xxi).

3 There is no case on record of a significant loss of water inventory from a domestic, commercial spent 4 fuel storage pool. (BNL Report at 2).

5 Because of the massive reinforced concrete structure of LHR spent fuel storage pools, designed to Category 6 I seismic criteria, initiating events that would lead to a structural failure are extremely unlikely.

7 (BNL Report at 16).

8 The present risk estimates are not expected to be applicable to more recent plants for which the fuel 9 pools have been designed to more stringent seismic criteria (and can therefore be expected to be less

10. susceptible to seismic failure). (BNL Report at 75)

Il j

11 lq A brief perusal of the BNL Report demonstrates that Intervenor's 12

!i claim of catastrophic certainty is, at best, wishful thinking. It is

[ especially clear that the BNL Report is not Diablo Canyon specific, as Intervenor would have the Appeal Board believe. Rather, it is based on two 161l older plants, which "were chosen specifically for their perceived l vulnerability to seismic events." Under these circumstances, the Licensing 17 . !

Board's decision was eminently correct.

18l i More particularly, the Licensing Board refused to admit the late-filed contention based upon the BNL Report, noting that the contention lacked the required basis for admission to the proceeding. In this regard, it is well established that compliance with the Concission's rules'and regulations for admission of contentions is mandatory. A party's failure to do s'o will preclude consideration of the proferred co1tention. Philadelphia Electric Co. (Limerick Generating Stations, Units I t.nd 2), ALAB-845, 24 NRC 220 (1986); Commonwealth Edison Co. (Byron Nuc7 ear Power Station, Units 1

l I and 2) LBP-80-30, 12 NRC 683, 686-690 (1980); $_PI P v. M C, 502 F.2d 424, 428 2 (D.C. Cir.1974). Sti A110, Florida Power and Liaht Co. v. Lorion, 470 U.S.

3 729, 7*2 n.10 (1985). The' Licensing Board cited the "very broad based 4 recommendations and conclusions in the Report, the lack of any evidence or 5 reasoning to connect the generic report with the specific configuration at 6 Diablo Canyon, and the absence of any suggestion of an accident initiator,"

7 1 A , an event which would lead to a complete loss of coolant in the spent 8 fuel pool, one of the speculative precedent conditions upon which the BNL 9 Report is predicated. LBP-87-24 at 11. This Board in ruling on Intervenor's i I

10 stay motion adopted similar reasoning.15/

II [ A specific example of Intervenor's faulty argument involves its 12 contention that the probability of a cask drop induced failure of the spent 13 fuel pool alone was sufficient to show that.the beyond design basis accident 14[ evaluated in the BNL Report cannot be considered remote and speculative at 15l Diablo Canyon. Intervenor initially cited language-in this Board's decision 16 h on the Stay Regnst in stating that the chances of a loss of pool water event Efoccurringduetoacaskdropis3in100,000 per reactor year, and then went 18! on to claim that the odds of a zircaloy fire for two units operating for 19 30 years would be "one accident per 500 years of operation." Brief at 8. j 20 Intervenor errs in applying this Board's cited statement as well as the BNL l

21 Report to Diablo Canyon. The statement was made by this Board "[i]n the 22 23 15/ "Neither the contention nor the bases assigned for it contains an  !

adequate explanation respecting why there is a reasonable possibility 24 that the spent fuel pc,ols would lose sufficient water to give rise to the chance of a fuel cladding fire and resultant radittion release i 25 discussed in the Brookhaven Report. Yet such an explanation appears to have been required to meet the bases and specification requirements for l 26 contentions." ALAB-877, slip op, at 9.

1 1

\

I context of the two ' surrogate' facilities utilized for analytic purposes, [and 2 concluded that] ... the likelihood of such an untoward occurrence having that 3 result is remote ...." (ALAB-877 at 9-10.) Additionally, even if one assumed 4 the applicability of the BNL Report to Diablo Canyon, the Report identifies 5 clearly that the probability of occurrence of such an accident at a given 6 plant will decrease with improvements in procedures and equipment. BNL Report 7

at 27, fn. 36. Such improved procedures and equipment exist at Diablo Canyon B

and have been reviewed and approved by the NRC. Staff Exhibit 1. Safety I

Evaluation Report at 15. The BNL Report acknowledges that the probability of 10- such an accident at a plant with these improved procedures and equipment

" ranges from 2 in 100,000,000 to 2 in 1,000,000,000,000 per reactor year. BNL 12l Report at 28. Thus, applying this range to Diablo Canyon in the manner used i 13 lIby Intervenor would not result in a probability of occurrence of 1 in 500, but I#

rather, approximately 1 in 830,000, clearly a remote possibility.

5 Intervenor also alleges that the seismic hazard at Diablo Canyon is I0 Brief greater than that of a " generic" plant reviewed in the BNL Report.

" at 9. Intervenor's allegation is without foundation. The seismic hazard IO j issue, as related specifically to Diablo Canyon, has been decided by the I9 Appeal Board in the licensing proceeding for the plant. ALAB-644, 13 NRC 20 903 (1981).

21 Indeed, since promulgation of 10 CFR 100, Appendix A " Seismic and 22 Geologic Siting Criteria for Nuclear Power Plants," nuclear power plants in 23 f this country have been designed to resist the seismic loads produced by the 24 vibratory ground motions associated with an " Operating Basis Earthquake" and a 25 " Safe Shutdown Earthquake." Thus, while the maximum postulated earthquake l

20 magnitudes may differ between various plants, each individual plant is

( l l -

I qualified to withstand-the maximum postulated earthquake for its particular 2 site.- Diablo Canyon has been designed to withstand the seismic loadings 3 associated with the Hosgri earthquake, which is the maximum postulated for the 4 site. Intervenor has not challenged this determination. Additionally, the 5 Hosgri earthquake, defined as one with a magnitude of 7.5 on the Richter 6 scale, has been predicted to have a maximum recurrence interval of once every 7 100,000 years. Id. at 51, n.7. This recurrence interval is comparable to

.8 that expected for the maximum postulated earthquakes at other reactor 9 facilities in this country. As a result, the " seismic hazard # sk" at Diablo 10' Canyon is not significantly different from that of any other plant that has Il been licensed by the NRC in accordance with 10 CFR 100 Appendix A criteria, 12 contrary to Intervenor's allegations. (See Brief at 18-19.) Intervenor has I3 not even argued, let alone demonstrated, how such " risk" can be altered by 14 increasing the spent fuel storage capacity, and similarly, the BNL Report 15; contains no discussion in this regard. In fact, the BNL Report states that, 16i -

with respect to spent fuel pools, " initiating events that would lead to a I7 structural failure are extremely unlikely." BNL Report at 16.

10 Intervenor also alleges that PG&E's proposed reracking will result II in a change in the design basis of the plant, thus resulting in a beyond 20 design basis situation. Brief at 22-23. However, Intervenor either 21 misunderstands or misuses the concept of design bases. Design bases, as 22 defined in the NRC's regulations, "means that information which identifies the 23 spec.ific functions to be performed by a structure, system, or component of a 24 facility, and the specific values or rances of valuies chosen for controlling 25 parameters as reference bounds for design." 10 CFR 50.2 (emphasis added).

I 26 The design bases for the Diablo Canyon spent fuel storage system were i _ ._ ._ _ _ - _ - _ - _ _ --

1 ,

l j 1

I established in accordance with NRC regulations identified in 10 CFR 50, 2 Appendix A, and include requirements to (1) maintain spent fuel in a coolable 3 geometry. (2) prevent significant reduction in spent fuel pool coolant 4 inventory under accident conditions, and (3) maintain the fuel in a 5 subcritical geometry. Thus, while the design of the storage racks and the 6 total quantity of spent fuel to be stored will be changed by the proposed 7 reracking, the design bases of the spent fuel storage system will not be 8 altered since the system remains totally capable of accommodating these 9 changes.

10' 2. The Licensing Board Properly Rejected Intervenor's Reauest to Direct Preparation of an EIS Notwithstanding its protestations to the contrary, prior to its

'9 ' " "9 * * * ** #" " " '" 9 13 g the BNL Report, Intervenor had not sought admission of a contention that the NRC had violated its duty under NEPA to prepare an EIS or that the EA was g

gll inadequate, gl As for Intervenor's additional argument that the BNL Report required the Staff to prepare an EIS, the Licensing Board noted that a beyond design 18 basis accident, such as postulated in the BNL Report, does not require the 39l Staff to issue an EIS, citing the recent decision in Vermont Yankee Nuclear g,

Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC (July 22, 1987), nran. denied, ALAB-876, 26 NRC (October 2, 1987). Sn 22

' ' ' ' ' """ "U " "

23 and 2), CLI-86-5, 23 NRC 125 (1986). In Vermont Yankee, id., the Appeal Board 24 ruled that, as a matter of law, a severe, beyond design basis accident was not 25 c gn a e uMu EA, cWg San % %oo Mus kr Nace w E m 26

m 1 F.2d 1287 (D.C. Cir. 1984), aff'd in eart en banc, 789 F.2d 26 (1986), n rt.

2 denied, U.S. 107 S. Ct. 330 (1986). Furthermore, the Appeal Board ini 3 Vermont Yankee held that "the NRC Interim Policy on ' Nuclear Power Plant 4 Accident Considerations Under the National Environmental Policy Act of 1969,'

5 45 End. Reg. 40101 (1980) ... (did] not apply to spent-fuel pool proceedings 6 by its terms." Id. at 14. Similarly, this Board, in acting upon Intervenor's 7 stay request, noted its agreement with the Licensing Board's determination 8 that the BNL Report's beyond design basis scenario did not trigger a 9 requirement for an EIS. ALAB-877, slip op. at 10-12.

Intervenor claims that an EIS is required based upon the findings 10l II .and conclusions contained in the BNL Report.10 Again, Intervenor is wrong 12 on all counts. The Licensing Board found that neither NEPA nor the

'o 13,l 14 " ig/ The BNL Report (NUREG/CR-4982, July 1987) was prepared by an NRC contractor, Brookhaven National Laboratory, as an initial assessment of l 15 ,, . NRC's Generic Issue 82, "Beyond Design Basis Accidents in Spent Fuel .'

16 il,:

Pools." This report provides an assessment of the risks associated  !

with the storage of spent fuel (in high density racks) at nuclear power plants, with particular emphasis on the effects of increased spent fuel 17 l storage capacity in these plants, and the effects of self-propagating 18; zircaloy oxidation following a complete loss of pool water. I

! The report concluded that the estimated level of risk associated with 19 spent fuel pool accidents warranted further consideration. The report also concluded that although measures could be taken which would 20l mitigate the consequences of such beyond design basis accidents, the magnitude of these risks does not warrant significant modifications to 21 existing (high density) fuel storage facilities for accident mitigation. The report does not conclude that current plants are 22 unsafe.

23 Specifically, the report assessed the risks of a beyond design basis accident - 1.,L , assuming catastrophic failure of the spent fuel pool 24 with an instantaneous loss of all cooling water - at two surrogate nuclear power plants which have not been shown to be representative of 25 the situation at Diablo Canyon. The spent fuel pools at Diablo Canyon have been designed according to NRC regulations which ensure that such 26 failures are extremely remote and speculative.

4 I Commission's regulations required the preparation of an EIS to consider beyond 2 design basis accidents for spent fuel pool rerackings. LBP-87-24 at 13-14.

3 In reaching that decision, the Licensing Board relied on the Appeal Board's l 4 decision in Vermont Yankee, ALAB-869, where the Appeal Board ruled as a matter  !,

5 of law that a severe, beyond design basis accident was not required to be 6 considered under NEPA, citing the D.C. Circuit's opinion in San Luis Obispo l 7

Mothers For Peace, 751 F.2d at 1301.

8 Vermont Yankee involved the alleged failure of the NRC to comply

'l with NEPA requirements and its own environmental regulations (10 CFR Part 51) in conjunction with a licensing amendment proceeding involving a spent fuel

" pool expansion where a proposed contention was based upon a postulated beyond 12 design basis accident. The precise sequence of accident initiating events I3 d involved a series of unlikely events which were agreed to be highly I4 improbable. In rejecting the Licensing Board's admission of the contention, -

the Appeal Board noted that:

16 h To the extent that the Commission ever considers the j7! environmental impact and risks of a beyond i

design-basis accident, it does so as an exercise of discretion under its 1980 NEPA Policy Stateheent. $.gB 18 1 Luis Obispo, 751 F. 2d at 1301. The Licensing Board, j9: however, erred in assuming that that Policy Statement applies to this proceeding. See L8P-87-17, 25 NRC 20 at (slip opinion at 28-29). Nothing in the language of the statement indicates that it was intended to apply to a license amendment proceeding.

21 More important, by its terms, the policy applies to those cases where there has already been a 22 determination that a major federal acton (sic) 23 significantly affecting the environment is involved and hence an EIS is necessary; it therefore directs what should be included in the EIS (i.e.,

24 consideration of the environmental impacts of a severe accident), not whether the EIS is required in 25 the first place. See 45 Fed. Reg. at 40,101-04.

26 Thus, before the NEPA Policy Statement is even invoked, there must be some basis for requiring an

1 EIS nihn thAD a claim of increased risk from a ,

beyond design-basis accident scenario. In contrast, l 2 interveners' claim here is just that: 1.e., the proposed action (expansion of the spent fuel pool) 3 will significantly affect.the environment, thereby requiring an EIS, because of the risks of the beyond 4 design-basis accident scenario they have described.

5 In sum, interveners cannot use a beyond design-basis accident scenario to " boot-strap" their way to an i 6 admissible contention that asserts an EIS is required  !

to examine the environmental risks of such an 7 accident. Neither the Commission's NEPA Policy Statement nor the statute itself provides a legally 8 cognizable basis for contention 2. He therefore reject it. (fn. omitted) ALAB-869, at 28-29. ]

10' This is precisely the same type of argument Intervenor sought to I

11 f advance before the Licensing Board in the instant case with regard to its NEPA )

12 claim premised on the BNL Report. The Licensing Boerd correctly rejected the 13 [ claim on the basis of the Vermont Yankee decision. l M ]

14 In applying the Vermont Yankee holding to this case, the Licensing 15 ll Board also noted that, unlike the petitioner in Vermont Yankee, Intervenor had 16 failed even to describe any accident scenario (such less a beyond design basis 17Il' scenario) which would link the generic BNL Report to Diablo Canyon and, thus, 18 it had presented an even weaker case than in Vermont Yankee. LBP-87-24 at 14.

19 Here, any substantial risk of a catastrophic spent fuel pool 20, accident is remote and speculative, as determined by the NRC Staff and the 21 Licensing Board. The BNL Report does not, by its own terms, apply to Diablo 22 Canyon, notwithstanding Intervenor's transparent attempts to convey the 23 contrary impression. Accordingly, the Licensing Board was correct in refusing 24 to admit the contention and direct the preparation of an EIS.

25 ///

26 ///

1 B. The Licensing Board Properly Ruled Against Intervenor on Its Contention I(B)(7) 2 At the hearing before the Licensing Board, the unrebutted evidence 3

reflected that PG&E had considered several alternative on-site storage options, including the ones specified in the contention.I7# (Shiffer, it 5

A1, ff. Tr. 179 at 28-30) Of no small significance in this regard is the 6

failure of Intervenor to connect this alleged failure of PG&E to consider 7

l alternatives with any NEPA or NRC regulatory requirement. As the Appeal Board 8

observed in Vermont Yankee, ALAB-869,11tpf_A, the requirement to consider alternatives to a proposed action, whether in an EA or EIS context, is on the NRC Staff, not the anolicant. ALAB-869 at 31-32. See Susauehanna Vallev Alliance v. Three Mile Island, 619 F.2d 231, 239 n.9 (3 Cir. 1980). Here, l I Intervenor only argued that PG&E did not consider certain alternatives and 13

! never did argue that the NRC Staff failed to consider alternatives. Moreover, 14 as the EA reflects (Staff Exhibit 2 at 2-5) and as the Licensing Board observed (LBP-87-25, slip op. at 32-34), the Staff did in fact consider alternatives to the reracking, including the on-site storage alternatives 18 i

ll/ Contention I(B)(7) stated:

l 19 It is the contention of the Intervenor that [PG&E's]

20 Reports fail to include consideration of certain relevant conditions, phenomena, and alternatives necessary for 21 independent verification of claims made in the Reports regarding consistency of the proposed reracking with the 22 public health and safety, and the environment, and with federal law. In particular, the Reports fail to consider:

23 (7) alternative on-site storage facilities including:

24 (1) construction of new or additional storage facilities and/or; 25 (11) acquisition of modular or mobile spent nuclear fuel storage equipment, including 26 spent nuclear fuel storage casks.

\

l l

I advanced by Intervenor, when it concluded that the proposed reracking would 2 have no significant environmental impacts.

3 Intervenor makes the patently misleading statement that it 4 " presented expert testimony showing that the consideration given these 5 alternatives by the applicant was not adequate..." Brief at 25. Such a 6

statement is totally contradictory to what actually occurred at the hearing 7

below. The Licensing Board, in deciding whether PG&E had considered 8

alternatives, found that "Intervenor did not present any affirmative evidence I

to show that PG&E failed to consider other alternatives to reracking. Rather, O

this contention is based only on opinion" - as conceded by Intervenor's own

" witness, Dr. R. B. Ferguson. (Tr. 443) Indeed, Intervenor's testimony before the Licensing Board on this contention "was amended by its only witness (Dr. Ferguson], who conceded that PG&E did, in fact, consider other 14 alternatives to reracking, though not in his ooinion ' seriously.'" LBP-87-25 at 34-35 (emphasis added) (Tr. 444-445).

16

" VI. CONCLUSION Intervenor has raised four issues on appeal, two of which were not

' raised below. It would seem that Intervenor's concept of an appeal is to 20 Intervenor create an ever moving target which changes form in each brief.

21 argued below that PG&E failed to consider alternatives but now argues that the 22 NRC Staff failed to adeauately consider alternatives. In addition, Intervenor never brought forth a contention which challenged the NRC Staff's NEPA

• documents but now argues that is what was meant. Those issues should be 25 dismissed as a matter of course as not properly before this Board. Assuming, j l

26 arauendo, they are not, Intervenor is substantively incorrect on both counts.

i

I The NRC Staff and PG&E adequately considered alternatives to the new spent 2 fuel pool racks and the NRC Staff properly prepared all necessary 3 documentation under NEPA.

4 Intervenor's two other issues on appeal, admission of a late-filed 5 contention based on the BNL Report and its argument that the BNL Report calls 6 for the issuance of an EIS by the Staff are likewise deficient. Intervenor 7 did not even meet the test for filing a contention, let alone a late-filed B

contention. Intervenor's call for an EIS based on the BNL Report is premised I

on a totally speculative and remote scenario which is in turn based on a 10 misinterpretation of the Report.

II It is respectfully requested that Intervenor's Appeal be dismissed 12 in its entirety.

13 14 Respectfully submitted, 15 H0HARD V. GOLUB I6 RICHARD F. LOCKE Pacific Gas and Electric Company 37 P. O. Box 7442 San Francisco, G 94120 18 (415) 781-4211 II BRUCE NORTON c/o Richard F. Locke  ;

20 P. O. Box 7442 San Francisco, CA 94120 21 (415) 972-6616 22 Attorneys for PACIFIC GAS AND ELECTRIC COMPANY By Bruce Norton i 25 DATED: November 25, 1987 i 26

r _ _ . _ _ - . ._ . _ - ___ _ _ _ _ _ _ -____ ________________ _

f. Ofllll('

1 UNITED STATES OF' AMERICA '87 g g g i 2 NUCLEAR REGULATORY LDeilSSION -

3 OkiNokYsy'y*

BRANCH ,

4 )

In the Matter of ) Docket Nos. 50-275 OLA 5 ) 50-323 OLA PACIFIC GAS AND ELECTRIC COMPANY )

6 ) (Spent Fuel Pool Reracking)

(Diablo Canyon Auclear Power )

7 Plant Units 1 and 2) )

8 9 CERTIFICATE OF SERVICE 10 I hereby' certify that on November 25, 1987, copies of the following document in the above-captioned proceeding have been served on the following II by deptsit in the United States mail, first class, or as indicated by an asterisk through delivery by Federal Express: PACIFIC GAS AND ELECTRIC 12 COMPAhY'S BRIEF IN RESPONSE TO THE INTERVENOR'S' APPEAL OF THE LICENSING 13 B. Paul Cotter, Jr., Chairman

• Docketing and Service Branch 14 Administrative Judge Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission 15 Board Panel Washington DC 20555 U.S. Nuclear Regulatory Commission (1 original plus 3 copies) 16 4350 East West Highway 4th Floor j7 Bethesda MD 20814 Glenn O. Bright

• Benjamin H. Vogler, Esq.*

18 Administrative Judge Office of Executive Legal Director Atomic Safety and Licensing U.S. Nuclear Regulatory Commission II Board Panel Maryland National Bank Building U.S. Nuclear Regulatory Commission Room 9604 20 4350 East West Highway 4th Floor 7735 Old Georgetown Road Bethesda MD 20814 Bethesds MD 20814 21 Dr. Jerry Harbor

• Regional Counsel 22 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Region V 23 Board Panel 1450 Maria Lane, Suite 210 U.S. Nuclear Regdatory Muion Halnut Creek G W6 24 4350 East West Highway 4th Floor Bethesda MD 20814 25 Atomic Safety and Licensing Marcia Preston, Esq.

26 Board Panel Law Office of Dian M. Grueneich i U.S. Nuclear Regulatory Commission 380 Hayes Street, Suite 4 Washington DC 20555 San Francisco CA 94102

d 1 Alan S. Rosenthal, Chairman

• Dr. P.ichard B. Ferguson Administrative Judge Intervenor/ Santa Lucia Chapter 2 Atomic Safety and Licensing RMKy Canyon Star Route Appeal Board Panel Creston CA 93432 3 U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th Floor 4 Bethesda HD 20814 5 Christine N. Kohl

• Managing Editor Administrative Judge San Luis Obisoo County 6 Atomic Safety and Licensing Telearam-Tribune Appeal Board Panel 1321 Johnson Avenue 7 U.S. Nuclear Regulatory Comission San Luis Obispo CA 93406 4350 East West Highway, 4th Floor 8 Bethesda HD 20814 9 Howard A. Hilber* Richard E. Blankenburg Administrative Judge Co-publisher 10 Atomic Safety and Licensing Mayne A. Soroyan, News Reporter Appeal Board Panel South County Publishing Company II U.S. Nuclear Regulatory Comission P. O. Box 460 4350 East Hest Highway, 4th Floor Arroyo Grande CA 93420 12 Bethesda HD 20814 13 Mr. Lee H. Gustafson Samuel J. Chilk, Secretary

• Pacific Gas and Electric Company U.S. Nuclear Regulatory Commission 14 1726 H Street NH Suite 1100 1717 H Street NH, MS 1149 Hashington DC 20036-4502 Hashington DC 20555 15 Janice E. Kerr, Esq. H1111am C. Parler, Esq.*

16 Public Utilities Comission General Counsel 5246 State Building U.S. Nuclear Regulatory Comission 17 350 McAllister Street 1717 H Street NH, MS 1035 18 l

/ Y Richard F. Locke 21 Pacific Gas and Electric Company 77 Beale Street, 27th Floor 22 San Francisco, CA 94106 23 Dated at San Francisco, California, this 25th day of November 1987.

24 25 26 1

_ _ __ __ __ _ _____