ML20235J154

PG&E Answer in Opposition to Intervenor Motion to Admit late-filed Contention.* Board Requested to Direct NRC Staff to Prepare EIS Re Issues Discussed in Generic Issue 82. Certificate of Svc Encl

ML20235J154
Person / Time
Site:	Diablo Canyon
Issue date:	07/10/1987
From:	Norton B PACIFIC GAS & ELECTRIC CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#387-4018 OLA, NUDOCS 8707150421
Download: ML20235J154 (12)

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%%fD 1 UNITED STATES OF AMERICA HUCL' EAR REGULATORY COMMISSION 87 Jtt 13 Pl2 :08 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD L 3 4

) Docket Nos. 50-275 OLA 5 In the Matter of ) 50-323 OLA

)

6 PACIFIC GAS AND ELECTRIC COMPANY ) (Spent Fuel Pool

) Reracking) 7 (Diablo Canyon Nuclear. Power )

Plant Units 1 and 2) ) July 10, 1987 8 }

PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER 10 IN OPPOSITION TO INTERVENOR'S MOTION TO ADMIT LATE-FILED CONTENTION 11 I.

12 INTRODU.CJ108 13 By Motion dated June 29, 1987 Intervenor seeks permission to file a 14 new contention related to Generic Issue 82 and requests that the Board direct 15 the NRC Staff to prepare an Environmental Impact Statement for Diablo Canyon 16 related to issues discussed in Generic Issue 82.

17 for the reasons discussed below, Pacific Gas and Electric Company 18 ("PGandE") opposes the Motion.

19 II. BACKGROUND 20 On October 30, 1985, PGandE filed a license amendment request with 21 the NRC seeking authorization to increase the c5pacity of the Diablo Canyon

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22 spent fuel pools from 270 to 1,324 fuel assembly storage locations by 23 installing high density racks. On January 13, 1986, the Commission published 24 the required notice of " Consideration of If,suance of Amendment to facility 25 Operating Licenses DPR-80 and DPR-82 for Diablo Canyon Power Plant, Units 1 26 and 2, Respectively, and Proposed No Significant Hazards Consideration 8707150421 8707J0 PDR G ADOCK 05000275 $

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1 Determination and Opportunity for Hearing" in the Federal Register 2 (51 Fed. Reg. 1451). On February 21, 1986, an Atomic Safety and Licensing 3 Board was established to consider petitions for leave to intervene filed by 4 the Sierra Club, Mothers for Peace, and the Consumers Organized for Defense of 5 Environmental Safety (" CODES"). On March 28, 1986, the Licensing Board.

6 admitted the Mothers for Peace as a party contingent upon the submission and 7 acctptance of at least one contention but denied the petitions of the Sierra 8 Club and CODES subject to reconsideration upon the filing of amended petitions 9 and the submission and acceptance of at least one contention. Timely amer.ded 10 petitions, including proposed contentions, were flied by the Sierra Club and 11 CODES. Also, proposed contentions were timely filed by the Mothers for Peace.

12 After a May 13, 1986, prehearing conference in Avila Beach, 13 California, the Licensing Board issued a decision on June 27, 1986, admitting 14 both the Sierra Club and CODES as parties, and admitting various contentions 15 of the parties (LBP-86-21, 23 NRC 849 (1986)).

16 On August 28, 1986, the Licensing Board established E schedule for 17 dis:overy and hearing. That schedule set alternate dates for hearing of 18 January 15, 1987, and March 26, 1987, respectively, dependent upon whether 19 summary disposition motions were filed. This schedule was later modified on i

20 December 1,1986, to permit additional discovery and prc41ded for a hearing 21 date of February 2, 1987. On December 15, 1986, Mothers for Peace and Sierra 22 Club filed a joint motion for summary disposition.I After considering the 23 24 25 10n December 10, 1986, and January 13, 1987, . respectively, CODES and 26 Mothers for Peace withdrew from the proceeding.

l 1 response of PGandE and the NRC Staff, the Licensing Board denied the motion on 2 January 28, 1987.2 3 Thereafter, on February 23, 1987, the NRC Staff informed the Board 4 that due to recent developments regarding its evaluation of multi-rack 5 impacts. it cculd not file testimony on February 24, 1987, nor would it be

'6 prepared to proceed to hearing on March 9, 1987. Following a conference cail 7 on Aprii S,1987, among the Licensing Board and the parties, the Board issued 8 an order on April 9,1987, setting a discovery completion date of May 27, 1987, 9 and a hearing date of June 16, 1987.3 10 On March 27, 1987, the NRC Staff issued Board Notification 87-05 11 ("BN 87-05"), which transmitted a dr ft report issued by Brookhaven National 12 Laboratory ("BNL") dated January 1987 Entitled "BeyOnd Design-Basis Accidents 13 in Spent Fuel Pools (Generic Issue 82)" ("BNL Report"). Sierra Club 14 Exhibit 1. BN 87-05 was provided to the boards and service lists for Diablo j i

15 Canyon and Vermont Yankee Station. While some dispute exists as to precisely 16 who received what, it is acknow'iedged by the Sierra Club that in late March or 17 early April of 1987 they received at least the two-page Board Notification 18 s'igned by Thomas H. Novak (Hotion p. 3, Affidavit of Richard B. Ferguson, and '

19 Declaration of Edwin F. Lowry).

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The licensing Beard also granted Sierra Club's motion of January 13, 24 1987, for a continuance of the hearing and set March 9,1987, as the new hearing date.

25 3 Limited appearance statements pursuant to 10 C.F.R. 2.715 were set for 26 June 15, 1987.

1 On or about June 13, 1987, Edwin Lowry, attorney for Sierra Club, 2 orally informed Bruce Norton, counsel to PGandE, that he intended to bring 3 this matter before the Board at the hiarhig scheduled to commence on 4 June 16, 1987, in Avila Beach, California.

5 The matter was discussed at the commencement of the hearing on 6 June 16, 1987, at which time Sierra Club sought to have the BNL Report 7 received in evidence and new COM ontions admitted. The Board took the matter 8 under advisement; at the close of hearing, the Board directed that the Sierra 9 Club file a motion in writirg within 10 days and PGardE and NRC Staff file 10 responses within 10 days o'/ receipt of the motion.

11 III. ARGUMENT 12 A. Stancards for_filina late Contentions 13 10 C.F.R. 2.714 requires that a petitioner set forth the bases for 14 each contention with reasonable specificity. This standard requires that any f

15 such contention be stated with particularity (In the Matter of Alabama Power 16 Co. (Joseph M. FSrley Nuclear Power Plant, Units 1 and 2), ALAB-183, 7 AEC f

17 210, 216 (1974.\). Generally, the particularity provision requires that a 18 contention identify a regulation that is supposedly being violated and outline 19 in sufficient detail the nature of the supposed violation (In the Matter of

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20 Public Service of New Hamoshire (Seabrook Unit 1),82-106,16 NRC 1649,1656 21 n. 7 (1982)). In this connection, a petitioner must state the reasons for its '

22' concern (In the Matter of Houston Liahtina and Power Comoany (Allens Creek 23 Nuclar Generating Station, Unit 1), ALAB-590,11 NRC 542, 548 (1980)). l 24 Where a petitioner seeks to file a new contention after the time for 25 f!iing contentions has passed, the five standards of 10 C.F.R. 2.714(a) must 26 also be satisfied (Jn the Matter of Kansas Gas & Electric Comoany. et al.

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1 (Wolf Creek Generating Station, Unit 1), LSP-84-1, 19 NRC 29 (1984)). They l 2 are:

3 (1) Good cause, if any, for failure to file on time.

4 (ii) The availability of other means whereby the petitioner's interest will be protected.

5 (iii) The extent to which the petitioner's participation may 6 reasonably be expected to assist in developing a sound record.

7 (iv) The extent to which the petitioner's interest will be 8 represented by existing parties.

9 (v) The extent to which petitioner's participation will broaden the issues or delay the proceedings.

10 11 Where the justification advanced for a late-filed contention is the 12 nonexistence or public unavailability of relevant documents, it must be shown 13 that such unavailability made it impossible for a sufficiently specific 14 contention to have been asscrted at an earlier date (In the Matter of Duke 15 Power Comoany. et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 16 NRC 460 (1982), re~v'd in eart and aff'd in oart, CLI-83-19, 17 NRC 1041 17 (1933)).4 l 18 19 20 4The three-part test of the good-cause factor of late-filed conte ~n tions enumerated in Catawba is that it:

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a. is wholly dependent upon the content of a particular 22 document, 23 b. could not be advanced with any degree of specificity (if at all) in advance of the public availability of 24 that document, and 25 c. is tendered with the requisite degree of promptness once the document comes into existence and is 26 accessible for public examination.

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a 1 B. The Motion Fails to Satisfy the Requirements for Admission as a late-File Contention __

The Sierra Club motion is defective not only in that it fails to meet the requirements for admission of a late-filed contention, it also fails to meet the requirements for admission as a timely filed contention, f The BNL Report itself is a draf_t study of beyond design basis 6

accidents in a spent fuel pool. As such, the document itself carries no i licensing implications for ongoing spent fuel pool expansion amendment 8

requests such as Diablo Canyon. Indeed, the generic nature of the evaluation combined with its oversimplified assumptions, which its authors acknowledge 10 contain a great deal of uncertainty, minimizes any plant-specific licensing 11 significance of the draft report's conclusions. The draft report sets no new licensing requirements nor does it conclude that current plants are unsafe.

Some simple illustrations of the draft report's assumptions demonstrate its inapplicability to current licensing proceedings.

First, the risk estimate is Dat based on the structural capability of speret fuel pools but rather of different concrete structures. Second, the 1

failure of the pool is assumed to be total leading to total loss of coolant 18 with no consideration or credit given for a pool liner such as exists at 19 Diablo Canyon. Third, the report assumes total loss of coolant without makeup 20 water leading to consequent heatup of the fuel cladding to a degree sufficient i 21 to initiate a self-propagating oxidation reaction. Diablo Canyon has 22 redundant makeup water systems available for the spent fuel pools. The 23 recitation of these conservative assumptions reflects that the scenarios 24 postulated in the BNL Report are not credible for either licensing purposes or 25 as support for a contention. Indeed, the very title of the report, "Beyond 26 r

1 Design Basis ...," is indicative of its inapplicability to individual i  ;

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licensing proceedings. See In the Matte tq" Duke Power Comoany. et al.

3 (Catawba Nuclear Station, Units 1 and 2), '.BP-82-16,15 NRC 566, 583 (1982),

4 Cf. In the Hatter of Public Service Comtunv of Oklahoma. et al. (Black Fox 5 Station Units 1 and 2), CLI-80-8, 1~ NRC 433 (1980) (Class 9 accidents not to <

6 be considered in individual licensing cases); In the Matter of Southern  !

7 California Edison.Comoany. et al. (San Onofre Nuclear Generating Station, 8 Units 2 and 3), CLI-31-33, 14 NRC 1091 (1981) (Commission will consider on a 9 generic basis whether the regulations should be changed to address the i

10 potential impacts of a severe earthquake on emergency planning).

11, The Sierra Club has not established any nexus between the draft BNL 12 Report scenarios and the license amendment at issue here. In particular, the 13 Sierra Club has not shown that the generic issue, assuming arguendo it raises 14 a significant safety issue for any reactor, has safety significance for Diablo 15 Canyon, and also has not shown that the manner in which PGandE addressed the 16 issue of pool cooling is unsatisfactory. (In the Matter of Public Service 17 Cam any of New Hamoshire. et al. (Seabrook Station, Units 1 and 2), supra 18 at 1657).

19 As noted above, each standard of 10 C.F.R. 2.714(a)(1) must be ,

20 satisfied in order to permit a late filing. Hith regard to the good-cause 21 standard, the Sierra Club asserts that it had no previous knowledge of the 22 issue and that it acted as quickly as possible. In order to place matters in 23 perspective, a brief discussion of BN 87-05 and its historical development is 24 necessary. The BNL Report which forms the basis for the proffered late 25 contention is part of an ongoing NRC review of Generic Issue 82 ("GI-82"),

26 which was prioritized as a medium priority item and discussed in December 1983  !

e 1 in NUREG-0933, "A Prioritization of Generic Safety Issues." NUREG-0933 has 2 been in the public domain for over three years and provides, inter Alta, as 3 follows*

4 " ISSUE 82:

BEYOND DESIGN BASIS ACCIDENTS IN SPENT FUEL PODLS 5 DESCRIPTION 6 Historical Backaround 7 The risks of beyond design basis accidents in the spent fuel storage pool were examined in NASH-1400 (App. I, pp. I-96ff).

8 It was concluded that these risks were orders of magnitude below those involving the reactor core. The basic reason 9 for this is the simplicity of the spent fuel storage pool--the coolant is at atmospheric pressure, the spent fuel 10 is always subtritical and the heat source is low, there is no piping which can drain the pool, and there are no 11 anticipated operational transients that could interrupt cooling or cause criticality.

12 The reasons for reexamination of spent fuel storage pool 13 accidents are two-fold. First, spent fuel is being stored instead of reprocessed. This has led to the expansion of 14 onsite fuel storage by means of high density storage racks, which results in a larger inventory of fission products in 15 the pool, a greater heat load on the pool cooling system, and less distance between adjacent fuel assemblies. Second, 16 some laboratory studies have provided evidence of the possibility of fire propagation between assemblies in an 17 air-cooled environment. These two reasons, put together,

, provide the basis for an accident scenario which was not 18 prev'ously considered." (Footnote references deleted)

(3.82-1) 19 The document also identifies earthquakes as a possible initiator:

"Second, a seismic event could breach the pool." (3.82-4) The Sierra Club, even though represented by counsel throughout the time these proceedings have been ongoing, claims to have been totally unaware of this potential issue until the week preceeding the hearing on June 16. The Sierra Club is chargeable with knowledge of GI-82 since it has been in public domain for over three years. In addition, the Sierra Club had sufficient notice in late March

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1 or early April of the existence of the draft BNL Report and did nothing for 2 approximately two months to further inform themselves or take any other action 3 until the eleventh hcur.

4 As for the availability of other means to protect their interest, the 5 Sierra Club makes no mention of the interim nature of the report; nor that

'6 once the report is finalized, the Staff and the Commission will review the 7 findings and conclusions and presumably take appropriate action as warranted 8 by the circumstances. If the Sierra Club is dissatisfied with the manner in 9 which the Staff or Cortmission handles the issue, it can file a 10 C.F.R. 2.206 10 petition and seek appropriate relief at that time.

11 Finally, the introduction of another contention at the ef eventh hour 12 will significantly delay the proceeding. Given the fact that GI-82 has been 13 publicly known for over three years, it is inappropriate for the Sierra Club i

14 1 to prolong the instant proceeding based on a draft document which in turn is 15 based upon admitted uncertainties and which, on its face, is not applicable to 16 ongoing licensing matters, 17 IV. CONCLUSION 18 The proposed contention does not raise a significant safety issue nor 19 was it proffered in a timely manner. Hence, it should not be admitted in this 20 proceeding. Additionally, since the proposed contention does not raise a 21 significant safety issue in this proceeding, there is no justification for an 22 order directing the preparation of an Environmental Impact Statement.

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1 For the foregoing reasons, PGandE does not be.lieve that Sierra Club 2 has met the criteria for filing and acceptance of a late contention in this 3 proceeding. Accordingly, the Motion should be denied.

4 5 Respectfully submitted, 6 H0HARD V. GOLUB RICHARD F. LOCKE 7 Pacific Gas and Electric Company P. O. Box 7442 8 San Francisco, CA 94120 1 (415) 781-4211 l 9

l BRUCE NORTON 10 c/o Richard F. Locke P. O. Box 7442 i 11 -Sar, Francisco, CA 94120 (415) 972-66'16 12 Attorneys for 13 Pacific Gas and Electric Company 14 -

By 16 Bruce Norton 17 DATED: July 10, 1987 18 19 20 21 22 23 24 25 26 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M

'87 Jll 13 Pl2:09 -

) Docket Nos. 50-275 On t f In the Matter of ) 50-323 00cgr w o -

) n o g. _'"

PACIFIC GAS AND ELECTRIC COMPANY ) (Reracking of Spent Fuel Pools)

)

(Diablo Canyon Nuclear Power )

Plant Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that on July 10, 1987, copies of the following.

document in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk through delivery by Federal Express: PACIFIC GAS AND ELECTRIC l COMPANY'S ANSWER IN OPPOSITION TO INTERVENOR'S MOTION TO ADMIT LATE-FILED CONTENTION.

B. Paul Cotter, Jr., Chairman

• Docketing and Service Branch Administrative Judge Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington DC 20555 U.S. Nuclear Regulatory Commission (1 original-plus 3 copies) 4350 East West Highway 4th Floor Bethesda MD 20814 Glenn 0. Bright

• Lawrence Chandler, Esq.*

Administrative Judge Benjamin H. Vogler, Esq.

Atomic Safety and Licensing Office of Executive Legal Director Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Maryland National Bank Building 4350 East West Highway 4th Floor Room 9604 f Bethesda MD 20814 7735 Old Georgetown Road Bethesda MD 20814 Dr. Jerry Harbour

• Lewis Shollenberger Administrative Judge Regional Counsel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Region V U.S. Nuclear Regulatory Commission 1450 Maria Lane, Suite 210 4350 East West Highway 4th Floor Halnut Creek CA 94596 Bethesda MD 20814 Atomic Safety and Licensing Edwin F. Lowry, Esq.*

Board Panel Grueneich & Lowry U.S. Nuclear Regulatory Commission 380 Hayes Street, Suite 4 Washington DC 20555 San Francisco CA 94102

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Atomic Safety and Licensing Managing Editor Appeal Board Panel San Luis Obisoo County U.S. Nuclear Regulatory Commission Telearam-Tribune Hashington DC 20555 1321 Johnson Avenue San Luis Obispo CA 93406 Mr. Lee M. Gustafson Richard E. Blankenburg Pacific Gas and Electric Company Co-publisher 1726 H Street NH Suite 1100 Hayne A. Soroyan, News Reporter Hashington DC 20036-4502 South County Publishirg Company P. O. Box 460 Janice E. Kerr, Esq. Arroyo Grande CA 93420 oublic Utilities Commission 5246' State Building 350 McAllister Street San Francisco CA 94102 Dr. Richard B. Ferguson Sierra Club / Santa Lucia Chapter Rocky Canyon Star Route Creston CA 93432 \ '

l Bruce Norton c/o Richard F. Locke Pacific Gas and Electric Company 77 Beale Street, 27th Floor San Francisco, CA 94106 Dated at San Francisco, California, this 10th day of July,1987.

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