ML20235R961

PG&E Answer in Opposition to Sierra Club Request for Stay.* Sierra Club 870924 Request for Stay of 870911 ASLB Initial Decision (LBP-87-25) Authorizing Spent Fuel Pool Reracking Amends Should Be Denied

ML20235R961
Person / Time
Site:	Diablo Canyon
Issue date:	10/02/1987
From:	Norton B PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20235R964	List: ML20235R961 ML20235S009
References
CON-#487-4552 LBP-87-25, OLA, NUDOCS 8710080248
Download: ML20235R961 (10)

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Oget I 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAll80ARD's:,; :,. q ,g 3 is h 4 -

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

) 50-323 OLA 6 -PACIFIC' GAS AND ELECTRIC COMPANY )

) (Spent Fuel Pool Reracking) 7 (Diablo Canyon Power Plant )

Units 1 and 2) )

8 ) October 2, 1987 9

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PACIFIC GAS AND ELECTRIC COMPANY'S 11 ANSWER IN OPPOSITION TO SIERRA CLUB'S REOUEST FOR STAY 12 13 l

I. INTRODUCTION 14 15 On September 24, 1987, the Sierra Club filed a Request For Stay of an 16 initial decision by the Atomic Safety and Licensing Board ("ASLB" or 17 " Licensing Board") issued on September 11, 1987, which authorized the Director 18 of Nuclear Reactor Regulation to issue amendments to the operating licenses 19 for Diablo Canyon Units 1 and 2. These amendments would permit an increase in i

20 the spent fuel pool storage capacity from 270 to 1324 fuel assemblies through 21 installation of high density racks.

22 Pacific Gas and Electric Company ("PGandE") opposes the request and 1

respectfully urges that it be denied in all respects.

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Q 1 II. BACKGROU@

2 3 On October 30, 1985, PGandE requested license amendments for Diablo 4 Canyon Nuclear Power Plant, Units 1 and 2 ("Diablo Canyon"), which would 5 authorize ~PGandE to increase the spent fuel storage capacity at Diablo 6 Canyon. On January 13, 1986, the Nuclear Regulatory Commission ("NRC")

7 published in the Federal Register a notice regarding the proposed 8 amendments.II In response to this notice, the San Luis Obispo Mothers for 9 Peace ("MFP"), the Sierra Club, Santa Lucia Chapter (" Sierra Club"), and 10 Consumers Organized for Defense of Environmental Safety (" CODES") filed II petitions for leave to intervene on February 7,10, and 12,1986, respectively.

12 After a prehearing conference, the Sierra Club, HFP, and CODES were 13 admitted as parties. Various contentions to be heard by the ASLB were also 14 admitted. (LBP-86-21, 23 NRC 849 (1986)).

15 Heanwhile, the NRC published its final Determination of No 16 Significant Hazards Consideration and granted PGandE the license amendments.

17 The NRC determination and the amendments allowed PGandE to install the new 18 high density racks prior to a hearing on the Interveners' contentions.2 19 Several weeks later, after PGandE had commenced installing the high 20 density racks in Unit 1, the HFP and the Sierra Club sought from the 21 Commission a stay of the effectiveness of the authorization of reracking.

22 Shortly thereafter, on June 18, 1986, they filed a petition for review and 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 Fed. Reg. 1451).

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

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motion for stay pending appeal with the Ninth Circuit Court of Appeals. On 2 July 2, 1986, an interim order was issued by the Ninth Circuit that prohibited 3 PGandE from using the high density racks until the Court reached a final  !

4 decision. On July 22, 1986, the Commission issued an order that restricted 5 PGandE to using only 270 storage spaces when the high density racks are 6

installed, even if the Court should reverse its interim order, until hearings 7 were completed.3#

8 On September 11, 1986, the Ninth Circuit issued a decision that 9

reversed the Commission's grant of authority to install the new high density 10 racks and prohibited their use until the Commission held hearings on the II amendment requests.SI 12 After several delays, a hearing was held on June 16-18, 1987, in 13 Avila Beach, California, on the remaining contentions of the Sierra Club.5/

14 At the hearing, the Sierra Club sought to raise a new contention regarding a 15 draft report by Brookhaven National Laboratories, dated January 1987, entitled 16 "Beyond Design-Basis Accidents in Spent Fuel Pools (Generic Issue 82)" ("BNL 17 Report").0# The Licensing Board took the matter under advisement; at the 18 close of hearing on June 18, the Board directed that the Sierra Club file 19 ///

20 3/ CLI-86-12, 24 NRC 1 (1986)

S/ San Luis Obisoo Mothers for Peace v. EfLC, 799 F.2d 1268, (9th Cir.1986).

5/ On December 10, 1986, and January 13, 1987, respectively, CODES and 23 Mothers for Peace withdrew from the proceeding.

24 6/ The BNL Report was provided to the parties and the ASLB in BN 87-05 issued in late March 1987. The final report, " Severe Accidents in Spent 25 fuel Pools in Support of Generic Safety Issue 82," NUREG/CR-4982 (July 1987) was sent to all parties as Board Notification 87-13 on 26 August 28, 1987.

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a motion in writing within 10 days, and that PGandE and the NRC Staff file 2 responses within 10 days of receipt of the motion.

3 On June 29, 1987, the Sierra Club filed with the Licensing Board a 4

motion to include issues raised in Generic Issue 82 as a contention in the 5 reracking proceeding and to direct the Staff to prepare an Environmental 6 Impact Statement ("EIS"). PGandE and the NRC Staff filed timely responses in 7 opposition to the motion.

8 On September 2, 1987, the Licensing Board issued a Memorandum and 9 Order (" Order") denying the Sierra Club's Motion to ad. nit a late-filed 10 contention.2# Then, on September 11, 1981, the ASLB issued its Initial II Decision (" Decision") authorizing the reracking amendments, thereby completing 12 the proceedings in this matter.0 13

.On September 16, 1987, Sierra Club filed with the Atomic Safety and 14 Licensing Appeal Board (" Appeal Board") an appeal of the ASLB's 15 September 2, 1987 Order. In an order issued September 18, 1987, the Appeal 16 Board dismissed the appeal as an impermissible interlocutory appeal.EI 17 On September 24, 1987, the Sierra Club filed an appeal of the ASLB's 18 Order and Initial Decision of September 2, 1987, and September 11, 1987, 19 respectively.10/ Accompanying this appeal was a Request for Stay of the 20 September 11. 1987, Initial Decision.

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l 22 2/ LBP-87-24, 26 NRC _ (1987).

23 8/ LBP-87-25, 26 NRC _ (1987).

l 24 S/ ALAB-873, 26 NRC _ (1987), l 25 10/ Sierra Club has appealed the September 2, 1987, decision in its entirety j and its Contention 1(B)(7) dealing with PGandE's failure to consider 26 {

adequately alternatives to the reracking. Sierra Club Notice of Appeal l

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I III. LEGAL ARGUMENT 2

3 The Commission's regulations at 10 CFR 2.788 incorporate the i 4 traditional stay criteria as set forth in Virainia Petroleum Jobbers t 5 Association v. fEC, 259 F.2d 921, 925 (D.C. Cir.1958). They are:

6 7 (j).whether the moving party has made a strong showing that it is likely to prevail on the merits; 8

(2) whether the party will be irreparably injured unless a ,

9 stay is granted;  !

10 (3) whether the granting of a stay would harm other parties; and

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(4) where the public interest lies.

13 In seeking a stay of a licensing action, a movant has the burden of 14 persuasion. Alabama Power Comoany (Joseph M. Farley Nuclear Plant, Units 1 15 and 2), CLI-81-27, 14 NRC 795, 797 (1981); Cuomo v. RC 772 F.2d 972, 973, 978 16 (D.C. Cir.1985). Perhaps the most significant factor under this test is i 17 "whether the party requesting a stay has shown that it will be irreparably )

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18 injured unless a stay is granted." Metropolitan Edison Comoany (Three Mile )

19 Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984). If no j 20 irreparable injury is shown, a movant must make a compelling showing on the 21 remaining three factors. Florida Power and Liaht Co. (St. Lucie Nuclear Power {

22 Plant, Unit 2), ALAB-415, 5 NRC 1435, 1437 (1977). In this connection, 23 speculative assertions of injury are insufficient, for a moving party "is 24 \

I 25 at 2-3. Sierra Club Request for Stay, p. 2 fn. 4. Sierra Club did not '

appeal the denial of its remaining contentions which challenged the 26 seismic design adequacy of the proposed high density racks. 4

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-l required to demonstrate the injury is both certain and great." Cleveland )

2 Electric 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2),

3 ALAB-820, 22 NRC 743, 747 (1985).'  !

4 Nith regard to likelihood of success on the merits, there must b a 5 greater showing than a pdtsibility of legal error by the Licensing Board 0 6 below, Philadelphia Electric Comoany (Peach Bottom Atomic Power Station, 7 Units 2 and 3), ALAB-221, 8 AEC 95, 98 (1974), or mere establishment of 8

possible grounds for appeal. AlabBma Power Co. (Joseph M. farley Nuclear 9 Plant, Units 1 and 2), CLI-81-27, 14 NRC 795,,797 (1981).

10 The remaining factors of harm to other parties and the public 11 interest are generally of lesser importance than the foregnin;. Their overall '

12 importancewillvaryaccordingtothemovant'bIshowing an irreparable harm anc 13 likelihood of prevailing on the merits. Public Service ComDany of New 14 Hamoshire (Seabrook Station, Units 1 and 2), ALAB-865, 26 NRC _ (May 8, 1987).

15 As the following discussion amply demonstrates, the Sierra Club has 16 not met the above criteria in its motion.

17 A. Sierra Club Has Not Shown A Likelihood Of Prevalino On The Herits 18 Sierra Club has' raised several points on appeal. Briefly stated, it 19 contends that the NRC has violated provisicns of the National Environmental 20 PolicyAct,42U[S.C.4321 11 n g. ("NEPA"), by its failure to prepare an

<' r Environmental Impact Statement ("EIS") and its inadequate consideration of 21 22 alternatives to the proposed reracking. In particular, it cites Board a 23 Notification 87-M and the BNL Report as examples of that failure. Request 24 at 6. The Sierra Club also argues that the failure of the ASLB to admit the 25 late-filed contention regarding the applicability of the BNL Report to Diablo 26 Canyon violates both the Atomic Energy Act, 42 U.S.C. 2239 ftt ag. (nuclear i I J

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plants will operate without endangering the public health and safety) and the i

2 Nuclear Hasth Policy Act 42 U.S.C. 10101, 10152(1) (prohibits NRC from 1 j y '3h authorizing expansion of on-site spent fuel facilities unless such action is 3i 4 consistent with the protection of the public health and safety).

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Prior to its attempt,to file a lato contention relating to the BNL f a4  !

6 Report, Sierra Club had not sought 4dmission of d contention that the NRC had 7

i violateditsdutygnderNEPAtoprepareanEk5. Rather, Sieira Club 8

Contentions ,(b)(76addressedonlytheodestiot,oftheadequacyofPGandE's f

9 review of al rnatives to the reracking.U# Thus, Sierra Club's EIS 10 argument applies mly to the late-filed contention dealing with the BNL II Aeport.

In reviewing the evidence presented on Contention I(B)(7), the Board i- 2 /

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) specifically found that PGandE had in fact considered the two alternatives I3 (1entlorHdbytheSierraClub. Moreover, the Board noted that the only l

l 14 l specif tc alternatives thnti the NRC requires to be considered are off-site I

15 storage or reprocessing, and shutting tae reactor down. The Board went on to l 16 conclude tMit the alternatives considered by PGandE in the Reracking Report 17 compliedfblywitpNRCrules. Decision at 10-12.

18 l 19 U/ Contention 1(B)(7) stated:

It is the contention of the Sierra Club that 20 [ applicant's] Reports fail to include consideration of certain relevant conditions, phenomena, and alternatives 21 necessary for independent verification of claims made in the Reports regarding consistency of the proposed 22 reracking with the public health and safety, and the environment, and with federal,1aw.

23 In particular, the Reports fail to censider: ,

(7) alternative on cito storage facilities including:

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(i) construction of new or additional storage ~

facilities and/or; 2S (ii) acquisition of modular or mobile spent nuclear t

fuel storage equipment, including spent nuclear 26 fuel storage casks;.... l l

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Hith regard to Sierra Clut.'s safety contention premised on the BNLa

.v 2 Report, the Board in its SeptFicer 2 Order found that the proposed contention 3

3 $ckedanexuswiththeBNLR[yrtand,hence,lackedabasisforadmissionto 4 the proceeding.121 The Board-Hent through a detailed analysis of the BNL 5 Report ani ruled that it faile$ to support the contention proffered by the L t- ) ,

6 Sierra Clut Indeed, the Board pointed'out that the Sierra Club had failed to 7 suggest a "... mechanism or event that could cause a loss of coolant accident 8 at the Diablo Canyon spent fuel pools...." Order at 10.

9 As for Sierra Club's additional argument that the BNL Report required 10 the Staff to prepare an EIS, the Board noted that a "beyond design-basis ,

'Il accident," such as postulated in the BNL Report, does not require the Staff to 12 issue an EIS, citing the recent decision in Vermont Yankee Nuclear Power Coro.

13 (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC _ (July 22, 1987).

14 In Vermont lan!Lef, id., the Appeal Board ruled as a matter of law that a

- 15 severe, beyond design-basis accident was not cognizable under NEPA, citing 53n v

16 Lujf_Qbisoo Mothers for Peace v. HRC 751 F.2d 1287 (D.C. Cir.1984), aff'd gn p 17, p band.789,5.2d26(1986), cert. denied, _ U.S. _,107 5. Ct. 330 (1986).

4 iB furthermore, the Appeal Board in Vermont Yankee held that "the NRC Interim 19 i Policyon'NucigePowerPlantAccidentConsiderationsUndertheNational 20 Environmental Policy Act of 1969,' 45 fad. Bag. 40,101 (1980) ... (did] nat 21 apply to spent fuel pool proceedings by its terms." Id. at 14.

22 til 23 _.

24 12/ The basis and specificity requirements for a contention are to put the parties on notice of what issues they will have to defend and to assure 25 that issues which are raised are appropriate for litigation in a particular proceeding. Phildelohia Electric Cru (Limerick Generating 26 Station Units 1 and 2), ALAB-845, 24 NRC 220, 230 (1986).

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r I B. Sierra Club Has Not Shown That It Hill Be Irreparably Harmed If The

'2 Stav Is Denied 3 The Sierra Club alleges that it, its members, and the public will be l j 4 endangered by the proposed reracking, citing the BNL Report as the basis-for 5 postulating a catastrophic accident. However, it is clear that a mere 6 .referencefto the BNL Report with all its caveats cannot be transformed into a 7 claim of irreparable injury postulated upon. the occurrence of a severe 8 accident. As noted above, the ASLB found that the Sierra Club failed to 9 describe any scenario which would lead to a catastrophic accident. Thus, the 10 . Sierra Club has simply not demonstrated that the claimed injury is "both II

.certain and great," and the issuance of a stay is not warranted. Wisconsin 12 Gas._Co. v. EEAC, 758 F.2d 669, 674 (D.C. Cir.1985), Cleveland Electric 13 111uminatina Co., (Perry Nuclear Power Plant, Units 1 and 2), lynn at 747.

14 15 C. The Grantina Of A Stav Hill Harm Other Parties 16 Given the facts as set forth in the attached affidavit of James D.

17 Shiffer,'it is clear that PGandE will suffer significant harm if a stay is 18 aranted. Not only will reracking have to be further delayed, with the 19 consequent increase in cost of the project, but also the actual rtracking work 20 will become far more difficult to accomplish due to the larger number of spent 21 fuel elements in the spent fuel pool. For example, with twice as much spent 22 . fuel in the pool, it will not be possibl2 to provide as much physical 23 separation between the spent fuel and the underwater work activities. This 24 increases the level of radiation to which divers will be exposed. Also, the 25 movement of twice the amount of spent fuel in and out of the racks results in 26 increased radiation exposure during the rack replacement process. ,

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I D. The Public Interest lies In Denial Of A Stav 2 The recent hearings have demonstrated that the proposed high density 3 reracking at Diablo Canyon poses no safety or environmental harm to anyone.

4 Sierra Club has had an opportunity to present its case on the issues but has 5 not borne its burden of persuasion in that hearing or in its stay motion. As 6

,,oted in the affidavit of James D. Shiffer, a stay would increase radiation 7

exposure to workers and provide no discernible benefit.to the public.

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CONCLUSION 10 Il For the foregoing reasons, PGandE respectfully requests that the 12 Request for Stay be denied in its entirety.

13 14 Respectfully submitted, l 15 HOWARD V. GOLUB l

16 RICHARD F. LOCKE 17 Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94120 IB (415) 781-4211 19 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 2 By N Bruce Norton 25 DATED: October 2, 1987 26

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