ML16340A798

Response to State of Ca,Governor Eg Brown 791207 Amicus Curiae Brief Re Joint Intervenors Exception 45 to ASLB 790927 Partial Initial Decision.Brune Testimony Re Seismic Issue Should Not Negate Expert Opinions.Certificate of Svc

ML16340A798
Person / Time
Site:	Diablo Canyon
Issue date:	02/20/1980
From:	Davis L, Ketchen E, Tourtelotte J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
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ML16340A797	List: ML16340A796 ML16340A798
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NUDOCS 8002250179
Download: ML16340A798 (44)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC'AFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant

)

Unit Nos.

1 and 2)

)

Docket Nos. 50-275 O.L.

50-323 O.L.

NRC STAFF RESPONSE TO AMICUS CURIAE BRIEF OF GOVERNOR EDMUND G.

BROWN, JR.

AND JOINT INTERVENORS'XCEPTION 45 L.

Dow Davis, IV Counsel for NRC Staff Edward G. Ketchen Counsel for NRC Staff Dames R. Tourtellotte Counsel for NRC Staff

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant Unit Nos.

1 and 2)

Docket Nos. 50-275 O.L.

50-323 O.L.

NRC STAFF RESPONSE TO AMICUS CURIAE BRIEF OF GOVERNOR EDMUND G.

BROWN, JR.

AND JOINT INTERVENORS'XCEPTION 45 L. Dow Davis, IV Counsel for NRC Staff Edward G. Ketchen Counsel for NRC Staff James R. Tourtellotte

'ounsel for NRC Staff

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TABLE OF CONTENTS Introduction 0

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Statement of Issues V

Arg um e nts A.

The Brune Testimony on Seismic Focusing and Stress Drop Shoul d Not, as a Matter of Fact or Law, Negate the Expert Opinions Adopted by the Licens ing Board in its Partia 1 Initial Decision and Therefore There is No Need for a Remand B.

The Licensing Board Decision Reasonably Articulates the Reasoned Basis for its Decision that Seismic Focusing and Stress Drop are Not of Design or Analytical Significance for Diablo Canyon.

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Court Cases:

TABLE OF CITATIONS

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CI 19 8).......

I'I NRC Cases:

Consolidated Edison Co. of New York (Indian Point, Units 1, 2

and 3, ALAB-319, 3 NRC 188 t1arch 16, 1976).

Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3, CLI-7 -28, 8

NRC 9 4)...

Consolidated Edison Co. (Indian Point, Units 1, 2 and 3),

ALAB-561, 10 NRC (slip op. dated September 6, 1979......

Consolidated Power Com an of New York (Indian Point, Units and 3, ALAB-436, 6 NRC 547, 627 1977).

Northern States Power Com an (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179

( 1973)

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Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power P ant, Units 1 and 2), LBP-

, 10 NRC (September 27, 1979) 1, 2

12 13 3,

14 Public Service Com an of New Ham shire et al.

(Seabrook Station, Units 1 and 2, ALAB-422, 6 NRC 33, 63 (1977) llisconsin Electric Power Com an (Point Beach Nuclear P ant, Unit 2, ALAB-78, 5 AEC 319, 321 (1972)......

10,11,13,14 14 10 CFR Part 2

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52.760a

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'EFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant

)

Unit Nos.

1 and 2)

)

Docket Nos. 50-275 O.L.

50-323 O.L.

NRC STAFF

RESPONSE

TO AMICUS CURIAE BRIEF OF GOVERNOR EDMUND G.

BROWN, JR.

AND JOINT INTERVENORS'XCEPTION 45 I.

Introduction On December 7, 1979, Edmund G. Brown, Jr.,

Governor of the State of California, (hereafter cited as Governor Brown or Governor),

submitted a document to this Appeal Board entitled "Brief in Support of Exception Or, in the Alternative, Brief Amicus Curiae "T.he Governor asked that his p'leading, (Governor's srief),

be treated as a brief in support of Joint Intervenors'xception number 45-1/

to the Licensing Board's Partial Initial DecisioP which concluded that the testimony of Intervenors'itness, Dr. Brune, on seismic focusing and stress drop was not of design or analytical significance for the Diablo Canyon Nuclear Power Plant (DCNPP).

In the event that the Appeal Board were to conclude that the Governor's filing of exceptions was inappropriate, it was

+1 Joint Intervenors'xceptions to the Licensing Board's Partial Initial Decision of September 27, 1979, at 7.

Q2 Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10 NRC (September 27, 1979).

asked that leave be granted to fi1e the document as an amicus curiae brief'nder the provisions of 10 C.F.R.

5 2.715(d).

II. ~k The State of California, in the person of the Public Utilities Commission, was admitted in 1973 as a full party to the instant proceeding under the provisions of 10 C.F.R.

5 2.714.

while the Public Utilities Commission g3 has participated in several hearings and pre-hearing conferences since that time, it was not present at the seismic hearings held on December 4-23,

1978, January 3-16, 1979, and February 7-15, 1979, which formed the basis for the instant appeal by the Joint Intervenors nor did it file findings of fact with respect to seismic issues.

Likewise, while the NRC Staff has consulted with the California Division of Nines and Geology during its review of this case and an observer from that agency was present during the seismic hearings, the Division did not present

evidence, participate in the hearings or present findings of fact.

Subsequent to the conclusion of the seismic hearings, on October 15, 1979 Governor Brown petitioned to be admitted to the instant pro-ceeding as a representative of the State of California pursuant to 10 CFR 3 2.715(c).

The Atomic Safety and Licensing Board, (Licensing Board),

by Order of November 16, 1979, admitted Governor Brown to participate in the hearing but cautioned that he was to "take the proceeding as he finds it".

In response to the Licensing Board's Order that the Governor express his interests in the proceeding, on November 16,

1979, the third item-in his 4/

Q3 Memorandum and Order dated December 14, 1973.

Q4 The other items delineated in that. submission are not relevant here.

3 "Statement of Issues of Concern" raised for the first time the Governor' questions about the adequacy of the Licensing Board's consideration in the Partial Initial Decision (PID) of seismic focusing and high stress drop.

Mhile the Governor's pleading comes late in the proceeding, the NRC Staff will address the Brief since it is filed in suppor t of Joint Intervenors'xcep-tion 45 which is properly before the Appeal Board.

For the reasons which

'I are developed infra, there has been no new infonsation on seismic focusing and stress drop submitted by the parties since the hearing and there has been no factual showing that it was error for the Licensing Board to rely upon the evidence cited in the PID.

Consequently, the NRC Staff believes that the Governor and Joint Intervenors have not shown that the record in this case is inadequate, as a matter of law or fact, and therefore excep-tion 45 should be rejected.~5/

III.

Reference to Rulin s The subject of Joint Intervenors'xception 45 and Governor Brown's amicus curiae brief is the Operating License Partial Initial Occision on safety matters issued by the Atomic Safety and Licensing Board on September 27, 1979.

In that PID, the Licensing'Board found that in regard to the postu-6/

lated theories 1 e t e taff does not believe that on the basis of the record in this case, the stress drop and seismic focusing issues warrant a remand of the present case for further hearings, it does believe that the studies recommended by the State of California might be helpful in developing information about the site and seismicity in general and thus should be pursued without prejudice to their presenting the information to the NRC at a later date.

g6 Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units an

, (September 27, 1979).

4 of Dr. James N. Brune on seismic focusing and stress drop, that "the speculated higher [acceleration]

values postulated by Dr. Brune are not of design or analy-tical significance for the Diablo Canyon Plant"P IV.

Statement of Issues The issues presented by the Governor's Brief and Joint Intervenors'xception 45 to the PID are:

A.

Whether the Brune Testimony on Seismic Focusing and Stress Drop

should, as a flatter of Fact or Law, Negate the Expert Opinions Adopted by the Licensing Board in its Partial Initial Decision; and B.

Whether the PID Reasonably Articulates the Basis for the Finding that Seismic Focusing and Stress Drop Are Not of Design Signifi-cance for the Diablo Canyon Plant.

V.

~Av uments A.

The Brune Testimon on Seismic Focusin and Stress Dro Should Not as a Hatter of Fact or Law Ne ate the Ex ert 0 inions Ado ted b

the Licenssn Board sn its Partial Initia Decision and Therefore There is No Need for a

Remand The Brief in support of Joint Intervenors'xception 4

and Governor

-8/

Brown's Brief both allege that the Licensing Board "failed to accept as significant the testimony of Dr. James N. Brune"+ in that there was "no Q8 Intervenors'rief at 52-53.

+9 Governor '

Sri ef at 2.

evidence which would support the ASLB's conclusion that seismic focusing and high stress drop are "not of design or analytical significance for the Diablo Canyon Plant"~

and that additional analyses need be investigated 10/

for the Plant since it is alleged that there has been "no meaningful analysis" of the issue in this proceeding.~

The effect of the Licensing Board's 11

failure to credit Joint Intervenor's witness and to explore the matter more thoroughly is said to have shifted the burden of proof from the Applicants to the Joint Intervenors.~

In addition, both claim the Partial Initial 12/

Decision is deficient in that "the Licensing Board failed to provide a

~13 rational basis for dismissing Or. Brune's testimony as irrelevant".

The Governor's Brief prays that relief be granted in the form of a remand to the Licensing Board for further investigation, hearing and consideration of a "realistic model of ground motion resulting from a rupture propagating on the Hosgri Fault, including the effects of focusing and the possibility of anomalously high stress drop" on the theory that a significant safety issue has been raised and not dealt with correctly.

For the following reasons, the NRC Staff believes that these allegations are without merit.

Joint Intervenors and Governor Brown first point to the existence of testi-mony on the record by Dr. James iN. Brune to the effect that peak instrumental 10 Id. at 6-7.

~11 Id. at 8-9.

~12 Governor's Brief at 6-7; Intervenors'rief at 11.

~13 Governor's Brief at 3, 6; Intervenor s'rief at 53.

acceleration values of up to 2.0 g's could be possible at the site as being a significant environmental or safety issue which should have been explored further by the Licensing Board and parties until a definitive answer to the questions raised by their testimony was known.

14/

Citing the Indian Point~

case which governs the procedures to be used upon 15/

discovery of an important safety issue in an operating license proceeding, it is their view that the Licensing Board's failure to resolve the questions posed by Intervenor's expert testimony resulted in a shift of the burden of proof from the Applicant to them.~

Joint Intervenors misapply the Indian Point rationale, now codified as 10 C.F.R.

5 2.760a, to the instant situation.

It is beyond debate that one 4 y~

of the main issues in this case, both before the Licensing Hoard and Appeal Board, is the adequacy of the acceleration value used for the seismic reanal-ysis of Diablo Canyon.

Unlike the Indian Point situation,

however, the issue of Diablo Canyon seismicity has been identified in Joint Intervenors'ontention Number 2 for a number of years and the matter set for hearing with that contention in mind.

Thus, the instant case is distinguishable from Indian Point 'in that it does not involve the existence of a hitherto unknown and unexamined safety question.

Contrary to Joint Intervenors'ssertion, the situation at bar involves instead a normal safety issue which

~14 Governor s Brief at 8.

~15 Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3),

ALAB-319, 3 NRC 188 March 16, 1976).

See also Consolidated Edison Co.

of New York (Indian Point, Units 1, 2 and 3~CLI-74-28, 8

NRC 7

1974

~16 Governor 's Brief at 7.

was scheduled and tried as a contention with the full knowledge and oppor-tunity for advance preparation by all the parties.

For that reason, the real issue involved in this appeal is not the failure of the Licensing Board to resolve or investigate an Indian Point safety issue but rather is simply a burden of proof/ persuasion question.

In reality, the complaint involved here is the refusal of the Licensing Board to adopt Joint Intervenors'estimony in preference to that presented by the NRC Staff and Applicant.

Although the testimony of Joint Intervenors'itness, Dr. James N. Brune, had a basis in seismological

theory, the Licensing Board had a rational basis for choosing not to accept it.

Other testimony in this case revealed that the effects of focusing and stress drop were included in the seismic analysis done by the Applicant and Staff.

In addition, the concepts of stress drop and seismic focusing were theoretical in substance, generally unproved in nature, and speculative.

Moreover, because of their failure to connect those theories with the DCNPP site in a concrete fashion, Joint Intervenors simply failed to satisfy their responsibility to rebut the Staff and Applicant's showing that stress drop and seismic focusing analyses were not essential in this case rather than presenting an unresolved safety item which ne'eded to be studied and resolved prior to licensing.~

An examina-17/

tion of the record clearly supports the Staff's view on these matters.

ee t e supp cmental opinions of Chairman Rosenthal and Dr. Buck in Consolidated Edison Co.

( Indian Point, Units 1, 2 and 3), ALAB-561, 10 NR s

sp op. dated September 6,

1979 at 5-8).

First, testimony at the hearing revealed that the United States Geological Survey's selection of a 7.5 magnitude ear thquake was very conservative.

Despite the fact that the controlling earthquake for the Hosgri (a 1927 7.3 magnitude, earthquake of undetermined origin) could not be definitely located on the Hosgri Fault, the conservative assumption was made that this event would occur on the Hosgri,~

In addition to the conservative assumption 181 that the 7.5 event would occur on the Hosgri, a further conservative assump-tion was made that the earthquake would occur anywhere on the Hosgri, including that portion of the fault closest to the DCNPP.~

Another conservative assumption made was the use of USGS Circular 672 in the computation of peak ground motion accelerations so that the possibility of exceeding the values derived by the Staff's expert, Or.

Newmar k, would be extremely small even if a magnitude 7.5 event were to occur on the Hosgri at the point nearest DCNPP.

Tr. 5845-5847, 9288.~

+18 S

R Supp at C-9, C-15.

~19 SER Supp 4 at C-15.

~20 On December 17, 1979, the Diablo Canyon Appeal Board was notified by Steven A. Varga, DPtl, of information concerning the October 15, 1979 Imperial Valley Earthquake.

At a location one (1) kilometer from the fault, a peak acceleration of 1.74g was recorded in the vertical direction.

The USGS strong motion records from this event are still being analyzed.

At the present time, however, based on an initial summary review of the information, the NRC Staff position, criteria, and conclusion with respect to Diablo Canyon remains unchanged.

This is'due to the fact that in spite of high peak accelerations observed from the Imperial Valley Earthquake, damage from this earthquake

was, moderate.

This position is consistent with the position taken in Diablo Canyon in that the maximum vibratory ground motion used in the reanalysis of OCNPP is the effective acceleration of 0.75g which is derived from the response spectrum of the Pacoima Record which includes a peak acceleration of 1.2g.

Fina11y, even assuming arguendo that the items mentioned above are not conservative, the effects of stress drop and seismic focusing have, as a

practical matter, been included in the Diablo Canyon analysis.

Testimony showed that the effect of focusingoccurs in every earthquake to some degree.

Tr. 7950.

For sites where there was propagation in the direction of the instrument, the strong motion earthquake recordings would take into account the effects of any seismic focusing.

Tr. 5880, 7957.

Testimony also showed that local stress conditions for the Hosgri (which is expected to be intermediate between normal and strike slip faulting) are significantly less than those expected for compressional regions.

Smith Testimony at 11 fol. Tr. 5490.

Accordingly, Dr.

Newmar k's selection of the Pacoima Dam record of the San Fernando earthquake, which had anomalously high peak accelerations due to topographic amplification, focusing and high stress drop,and the envelopment of the response spectrum from that 22/

earthquake for the Diablo Canyon seismic design, includes the effects of those phenomena.

In addition to the fact that stress drop and seismic focusing values were already included in the analyses presented by the Staff and Applicants, even a cursory reading of Joint Intervenors'estimony on seismic focusing and 21/

Evidence showed low stress drop for Diablo Canyon along the Hosgri.

Tr. 5829-41.

+22 Intervenor Exhibit 66, Brune Testimony at 3-13 introduced at 7940; Tr. 7956, 8072-73, 'Tr. 5469, 8528, 10086.

0 stress dro and the cross-examination by the parties shows that it was 23/

24/

of a speculative and theoretical nature not directly applicable to Diablo Canyon.~

Thus, according to Dr. Brune, although it was theoretically possible to have accelerations as high as 2.0g. (Tr. 7986), only two values over 1.15g had been recorded in the world.

See footnote 20 at page 8 of this Brief.

Of these two, only the Russian Gazli record of 1.3g exceeded the peak acceleration for the Pacoima Dam record.

The response spectra of the Pacoima record was enveloped by the Staff-recommended design spectra and formed the foundation for the seismic analysis.

In addition, the record showed that there were problems in modeling the faulting, (Tr. 8056),

the DCNPP was not within the near field of any focusing phenomena, (Tr. 8025),

no calculation has been made to estimate the effect of focusing at the Diablo site, (Tr. 8025),

and there was a lack of near source records to apply the focusing theory.

Tr. 7952-7953.

Another reason for the Licensing Board's not requiring further studies at this time on seismic focusing and stress drop is that under the rule of

~23 Jo nt Intervenors'xhibit 66.

+24 Tr. 7885-8145.

~25 Governor Brown's Brief incorrectly states at page 6 that "other than Dr. Brune's statements, no testimony on seismic focusing was placed before...the ASLB".

Considerable evidence was presented on these issues by the Applicant and Staff,

~e... Tr. 4917, 5491, 5468-69, 5939, 5878-81, 5883-87, 5993, 5491, 29-41, 8484, 8526, 8617, 8626;30.

Moreover, Governor Brown's Brief ignores the extensive cross-examination at Tr. 7885-8145 which points up weaknesses in Joint Intervenors'ase.

reason promu1gated tn the Seabrook

decSsion,

~su ra, peak instrumenta1 accel-eration values ("g" values) must have a reasonable likelihood of occurrence before they need be taken into account in the design of a plant.~

In addi-26/

tion to the fact that peak acceleration values of the magnitude postulated had never been measured, Dr. Brune made it clear that he doesn't know for any given earthquake on the Hosgri fault whether it would focus energy toward the Diablo Canyon site, (Tr. 8075), that he could not assign a level of probability to the occurrence of a magnitude 7.5 on the Hosgri or the probability of focusing, (Tr. 8133-8144),

except to say that there was a low probability of exceeding 1.0g by focusing, (Tre 8047-49), that the effect in the "real earth" was not known, (Tr. 8954),

and that while stress drops "could" lead to unexpectedly large accelerations and velocities, (Tr. 7924),

the probabilities of occurrence for high stress drops is not known.

Brune testimony at 3-15 and 3-16 contained in Intervenors'xh.

66 admitted at Tr. 7940 ~

Moreover, even if the 2.0g allegation had not been so speculative and theoreti-cal, the concept that peak instrumental ground motions must be used for design purposes was rejected by the Appea1 Board tn the Seabrook dent stun ~su ra, which decided that an effective maximum acceleration, not peak values, were of design significance.

Consistent with this principle, a basic tenet of 2

Pu sc Serv ce Com an of New Ham shire et al.

(Seabrook Station, Units 1 and 2,

Al AB-42,

6 NRC 33, 63 1977

+27 Other deficiencies are discussed at Tr. 8059 to 8081 and Brune Testi-mony pages 3-16 to 3-18.

. seismicity, which most of the witnesses at the DCNPP seismic hearings sup-ported and with which only one Intervenors'itness disagreed,~

was that 28/

in the near field, peak instrumental acceleration values are not directly correlated to damage felt by any particular structure, (in this case, the DCNPP).~

As recognized in the Seabrook seismic decision, the existence of a peak acceleration value, without more, is not determinative until that value is translated into motion which would have a real effect.~

In this 30/

regard, Dr. Newmark concluded that peak acceleration values are not a reason-able basis from which to draw a design spectrum for near field earthquakes judging from the spectra for the several near field earthquakes for which records are available and from the lack of damage consistent with near field peak measurements in those near field earthquakes such as the Pacoima Dam s

record, the Parkfield record, the Ancona (Italy) records and the Melendy Ranch record.

See SER SUPP 5 at C-7.

Mhile there can be large acceleration spikes at high frequencies very close to faults, the energy content of these spikes are very small and the consequent damage to structures would be minimized.

Thus, before the significance of any postulated high acceleration values from Dr. Brune's "possible" peak accelerations could be ascertained, 2

Contrary to the teaching of the Seabrook

case, ALAB-422, Intervenors'issenting

witness, Or. Luco, thought the Diablo Canyon seismic spectra should be anchored at 1.15g, the peak acceleration listed in USGS Circular 672 "Ground Motion Value for use in the Seismic Design of the Transalaska Pipeline System".

~29 See Tre 7955; 9275-76.

~30 Public Service Com an of New Ham shire et al.

(Seabrook Station, Units 1 and 2, ALAB-422, 6 NRC 33, 63 1977 Accord, Consolidated Power Con an of New York (Indian Point, Units 1, 2 and 3, ALAB-436, 6

NRC 547, 627 1977; Blume at 2 fol. Tre 6100.

those values would need to be translated into what the Appeal Board in Seabrook described as the effective maximum acceleration values which have engineering significance, an act which was done for the Staff and Applicant's

analyses, but which was not done by the Joint Intervenors.

In short, the Joint Intervenors and Governor Brown fail to point to "any disclosures of record which dictated - as a matter of fact, law or policy-that the Board below [should have rejected] the expert conclusions of the Staff and Applicant's witnesses".~

B.

The Partial Initial Decision Reasonabl Articulates the Reasoned Basis for Its Decision that Seism c Focusin and Stress Dro Are not of Desi n or Anal tical Si nificance for Diablo Can on.

Joint Intervenors and Governo'r Brown ascribe another infirmity to the Licensing Board's Partial Initial Decision in that they claim the "Licensing Board failed to confront the facts and provide a reasoned basis for the conclusions drawn"~ and that the "terse discussion of the [focusing and stress drop] matters fails to include a factual or logical predicate for the ASLB's conclusion".

The Appeal Board has stated that it is the Licensing Board's duty not only'o resolve contested

issues, but also to articulate in reasonable detail the

~31 Id. at 7.

~32 Intervenor's Brief at 11.

~33 Governor Brown's Brief at 3.

4 P '

basis for the course of action they have chosen.~

In reviewing a Licensing Board's decision, an Appeal Board should be able to readily apprehend the foundation for the Board's decision since it is a well accepted principle of administrative law that the orderly functioning of the process of review requires the grounds upon which the administrative agency acted to be dis-closed and adequately sustained.~

For this reason, it is important that 35/

the decision-maker "confront the facts".~

When contrary evidence is reasonable on its face, sponsored by well qualified witnesses and is not

accepted, the Board has some obligation to explain why not.~

The Staff agrees with these general principles.

However, we believe that there should be reasonable limitations on the amount of specificity and the extent to which an administrative tribunal must articulate the basis for its decision.

For instance, a Licensing Board decision need not refer individually to every paragraph in an Intervenor's proposed findings of fact; it "meets the requirements of the Administrative Procedure Act and the Commission's Rules of Practice if C.the decision] sufficiently informs a party of the disposition of its contentions."~

Additionally, a Licensing Board decision

~34 Northern States Power Com an (Prairie Island Nuclear Generating Plant, Units 1 and 2, ALAB-104, 6 AEC 179 (1973).

~35 Public Service Com an of New Ham shire et al.

(Seabrook Station, Units 1 and 2,

LAB-422, NRC 33, 4 Ju y 26, 1977);

(Citations omitted.)

M3

~lh'

~ll hi, 95 F.2d 633, 63

(.C..i 9I8).

~37

Seabrook,

~su ra, at 41.

~38 Wisconsin Electric Power Comoan (Point Beach Nuclear Plant, Unit 2),

ALAB-78, 5 AEC 319, 321 1972

need not necessarily be reversed for lack of an explicit description of the rationale of the decision if the pathway used by the Board for its decision can be discerned by the appellate body.j The basis for the Licensing Board's refusal to,find that Dr. Brune's 2.0g values needed to be accounted for in the design of Diablo Canyon are apparent from the Partial Initial Decision.~

The PID on page 61 is replete with citations to the record and recounts the paucity of data, the theoretical aspect of the testimony, the low probability of the occurrence of high peak acceleration

values, the lack of significantly higher recorded data and the other points discussed above in this brief.

Although the Licensing Board did not delineate specifics in their concluding paragraph as to their deci-sion not to credit the postulated higher peak acceleration values referenced in testimony of Dr. Brune, the pathway used by the Licensing Board to obtain their conclusion is clearly apparent from a fair reading of the PID and the basis noted in significant detail in their discussion of the evidence.

For this reason, the HRC Staff believes that those portions of the Partial Initial Decision dealing with seismic focusing and stress drop are suffi-ciently reasoned to satisfy the dictates of Seabrook and related decisions.

~39

Saabrook,

~su ra, at 42.

~40 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2, LBP-

, 10 HRC (September 27, 1979 slip op.

at 61).

VI.

Conclus ions For the reasons listed above, the NRC Staff believes that neither the Joint Intervenors nor Governor Brown have shown an error of law or fact in the Licensing Board's decision on the issue of seismic focusing and stress drop.

Consequently, Exception 45 should be rejected.

Respectfully submitted,

~962 L. Dow Davis James Tourtellotte Counsel for NRC Staff Dated at Bethesda, Haryland this 20th day of February, 1980

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

PACIFIC GAS AND ELECTRIC COMPANY

)

(Diablo Canyon Nuclear Power Plant

)

Unit Nos.

1 and 2)

)

Docket Nos.

50-275 O.L.

50-323 O.L.

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO AMICUS CURIAE BRIEF OF GOVERNOR EDMUND G.

BROWN, JR.

AND JOINT INTERVENORS" EXCEPTION 45" and "NRC STAFF RESPONSE TO INTERVENORS" EXCEPTIONS ANO APPEAL OF SEISMIC PARTIAL INITIALDECISION", dated February 20, 1980 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 deposit in the Nuclear Regulatory Commission s internal mail system, this 20th day of

February, 1900:

fez padre~

g

<+ 7 k~r 4,7"~~~rg~~ p-(< p-

• Richard S. Salzman, Esq.,

Chairman

• Mr. Glenn 0. Bright Atomic Safety and Licensing Appeal Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comoission U.S. Nuclear Regulatory Commission Washington, D.

C.

20555 Washington, O.

C.

20555

• Or. John H. Suck Mrs. Elizabeth Apfelberg Atomic Safety and Licensing Appeal Board 1415 Cozadero U.S. Nuclear Regulatory Commission San Luis Obispo, California 93401 Washington, D. C.

20555 Or. William E. Martin

• Or.

W.

Reed Johnson Senior Ecol agi st Atomic Safety and Licensing Appeal Board Battelle Memorial Institute U.S. Nuclear Regulatory Commission

Columbus, Ohio 43201 Washington, O.

C.

20555 Philip A. Crane, Jr.,

Esq.

• Mr. Thomas S. Moore, Member Pacific Gas and Electric Company Atomic Safety and Licensing Appeal Board Roam 3127 U.S. Nuclear Regulatory Commission 77 Beale Street Washington, D.

C.

20555 San Francisco, California 94106

• Elizabeth S.

Bowers, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, O.

C.

20555 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

4623 More Mesa Drive Santa Barbara, California 93105 Mrs.

Raye Fleming 1920 Mattie Road Shell Beach, California 93449

J

'%~+

Mr. Gordon Silver 1760 Alisal Street San Luis Obispo, California 93401 John R. Phillips, Esq.

Simon Klevansky, Esq.

Margaret Blodgett, Esq.

Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 Arthur C. Gehr, Esq.

Snell 5 Wilmer 3100 Valley Center Phoenix, Arizona 85073 Paul C. Valentine, Esq.

321 Lytton Avenue Palo Alto, California 94302 Yale I. Jones, Esq.

100 Van Ness Avenue 19th Floor San Francisco, California 94102 Janice E. Kerr, Esq.

Lawrence g. Garcia, Esq.

. 350 McAllister Street San Francisco, California 94102 Mr. James

0. Schuyler Nuclear Projects Engineer Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106 Bruce Norton, Esq.

3216 North 3rd Street Suite 202 Phoenix, Arizona 85102 David S. Fleischaker, Esq.

Suite 709, 1735 Eye Street, N.W.

Washington, D.

C.

20006 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401

• Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission-Washington, D. C.

20555 Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K

San Jose, California 95125 John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0. Box 112.

San Luis Obispo, California 93406 Andrew Baldwin', Esq.

124 Spear Street San Francisco, California 94105 Herbert H. Brown Hill, Christopher

& Phillips, P.C.

1900 M Street, N.W.

Washington, D.

C.

20036 J. Anthony Klein Legal Affairs Secretary Governor 's Office State Capitol Sacramento, Ca.,

95814 Dow Davis Counsel for NRC Staff

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