ML16340B669
| ML16340B669 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/24/1981 |
| From: | Brown H CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML16340B670 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8105040456 | |
| Download: ML16340B669 (162) | |
Text
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ecreXf g g gg $Scarce 0~el,e6nK 5 Branch UNITED STATES OF AMERICA <o NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
Zn the Matter of )
) Docket Nos. 50-275 O.L.
PACIFIC GAS AND ELECTRIC COMPANY ) 5
)
(Diablo Canyon Nuclear Power ) (Low Power Test: Proceeding)
Plant, Unit Nos. 1 and 2) )
)
OPPOSITION OF GOVERNOR EDMUND G. BROWN JR.
TO THE NRC STAFF AND PACIFIC GAS AND ELECTRIC COMPANY MOTIONS FOR RECONSIDERATION AND
SUMMARY
DISPOSITION Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814 Herbert H. Brown Lawrence Coe Lanpher HILLg CHRISTOPHER AND PHILLZPSI PIC 1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Governor Edmund G.
April 24, 1981 Brown, Jr. of the State of California 8 > os0406(ne:
I R
TABLE OF CONTENTS Pacae Introductlon o ~ i io
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ ~ ooo ~ ~ i~i ~
Matters Pending Before the Licensing Board III. The Staff and PG&E Motions for Reconsideration of the Prehearing Conference Order Must Be Denied IV. The NRC Staff and PG&E Motions for Summary Disposition Must Be Denied A. The Present State of Emergency Response Planning at Diablo Canyon Does Not Permit Issuance of a Low Power License (1) The Combined PGGE, State and Local Emergency Response Plans Do Not Comply with 10 C.F.R. 5 50 ~ 47 ~ o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ e ~ ~ ~ ~ ~ ~ ~ ~ ~ 13 (2) The Combined PGGE, State, and Local Emergency Response Plans Demonstrate the Absence of Adequate Emergency Preparedness 17 B. The Staff and PGGE Motions for Summary Disposition of the Inadequate Core Cooling Issues Must Be Denied....... 29 C. Summary Disposition of Relief and Block Valve Issues Must Be Denied 33 EXHIBITS 1 Subjects Erroneously Rejected in the February 13, 1981 Prehearing Conference Order 2 Governor Brown Statement of Material Facts As to Which There is a Genuine Issue to be Heard
EXHIBITS SER, Supp. 12, pg. III-3 Letter from Philip A. Crane, Jr., PGGE, to Frank J. Miraglia, Jr., NRC, dated March 12, 1981 Letter from Malcolm H. Furbush, PG&E, to Harold R.
Denton, NRC, dated February 27, 1981 FEMA Memorandum Reviewing San Luis Obispo County Emergency Response Plan, dated May 8, 1980 Affidavit of Kurt P . Kupper, dated March 31, 1981 Affidavit. of Jeffrey Jorgensen, dated March 31, 1981 Affidavit of Richard J. Krejsa, dated March 31, 1981 10 Affidavit of- Dr. Howard Mitchell, dated March 31, 1981 Affidavit of Gordon Bruno, dated March 30, 1981 12 Affidavit of Alan C. Bond, dated April 1, 1981 13 'ffidavit, of Pete Dangermond, Jr., dated April 13, 1981 14 Affidavit of Robert E. Paulus, dated April 17, 1981 15 Affidavit of Richard L. Minor, dated April 1, 1981 16 Affidavit of Richard B. Hubbard, dated April 16, 1981 17 Memorandum from Brian K. Grimes, NRC, to John McConnell, FEMA, November 1980 18 Letter from Philip A. Crane, Jr., PGGE, to Frank J.
Miraglia, NRC, dated March 13, 1981 19 Affidavit of Gregory C. Minor, dated April 22, 1981 20 Affidavit of Gregory C. Minor, dated April 21, 1981 I 6 E Bull. 81-02, Failure of Gate Type Valves to Close Against Differential Pressure, April 9, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-275 O.L.
PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 O.L.
)
(Diablo Canyon Nuclear Power ) (Low Power Test Proceeding)
Plant, Unit Nos. 1 and 2) )
)
OPPOSITION OF GOVERNOR. EDMUND G. BROWN JR ~
TO THE NRC STAFF AND PACIFIC GAS AND ELECTRIC COMPANY MOTIONS FOR RECONSIDERATION AND
SUMMARY
DISPOSITION I. INTRODUCTION In this Board's Notice of Hearing, dated April 7, 1981, the Board announced that the hearing on the "Motion of Applicant Pacific Gas and Electric Company for Licenses for Fuel Loading and Low Power Testing" (the "Low Power Motion" ) would commence May 19, 1981. See 46 Fed. ~Re . 21736 (April 13, 1981). The Notice of Hearing was issued subsequent to the Commission's April 1, 1981 Order (CLI-81-5), which had directed this Board to make a determination whether the Diablo Can on record compiled to date is adequate for an initial decision on PGRE's Low Power Motion.
The Board responded to the Commission's directive by making the following findinc.
The Board has determined that the record com-piled in the Diablo Canyon case to support the issuance of a license for fuel loading and low power testing is not adequate. Notice of Hearing at 1 (emphasis supplied).
1 On April 9, 1981, this Board issued a Memorandum and Order clarifying its rulings in this proceeding. The April 9 ruling, which specifically cited CLI-81-5, rejected requests for recon-sideration of the Board's February 13, 1981 Prehearing Conference Order filed by PG&E, Joint Intervenors, and Governor Brown. The purpose and effect of the Board's April 9 Memorandum and Order was to establish firmly that the contentions and subjects'or litigation at the May 19 hearing are to be those admitted by the Board on February 13.
The Board's finding that the present record is not adequate to support issuance of a low power license, coupled with the Board's April 9 decision not to reconsider the February 13 Order, are dispositive of the recent, repetitive requests of the Staf&-
and PG&E- for further reconsideration. Clearly, since the Board found the state of the record in this contested proceeding to be inadequate, a license cannot be issued without the Board conven-ing a hearing to develop the necessary record. Thus, when the Staff and PG&E again ask this Board to dispense with the sched-uled hearing, they are asking this Board to take action that would freere the now inadequate record in its present state. To grant the Staff and PG&E requests, therefore, would require the 1/ Motion for Reconsideration of Licensing Board's Order, dated April 7, 1981.
2/ Motion of Pacific Gas and Electric Company to Reconsider ASLB Order dated February 13, 1981 and Opposition to Joint Intervenors'otion to Reopen Full Power Record, dated April 8, 1981; Motion of Pacific Gas and Electric Company to Reconsider ASLB Notice of Hearing Dated April 6, 1981, dated April 14, 1981.
I Board to ~den pGBE's Low power Motion on the merits. Indeed, no other Board action would be permissible in the face of the firmly established inadequate record.
Il. Matters Pendin Before the Licensin Board This Board has before it several matters which must be resolved expeditiously so that participants can prepare for the May 19 hearing. First, there are three unusual motions filed by PGRE and the Staff that challenge the February 13, 1981 Prehear-ing Conference Order: the Staff's Motion for Reconsideration of the Licensing Board's Order, dated April 7, 1981; the PGRE Motion to Reconsider ASLB Order dated February 13, 1981, and Opposition to Joint Intervenors'otion to Reopen Full Power Record, dated April 8, 1981; and the PGSE Motion to Reconsider ASLB Notice of Hearing, dated April 14, 1981. Second, there are two pending motions for summary disposition: the Staff's Motion, dated April 1, 1981; and the PGSE Motion, dated April 3, 1981.
The three PGGE and Staff motions for reconsideration are out.
of order and should be denied. This Board already has ruled that the record is not adequate for issuance of a decision on the Low Power Motion. Further, this Board already has reconsidered its Prehearing Conference Order in light of the Commission's April 1, 1981 Order and has adhered to its earlier ruling. Thus, further debate on these issues would be 'both repititious and a waste of the limited time otherwise available for trial preparation.
The summary disposition motions should also be denied. The PGRE Motion must be denied summarily for failing to comply with
the explicit requirements of 10 C.F.R. $ 2.749. The PGaE Motion does not present the mandatory statement of material facts as to which there is no genuine issue. Given this critical violation of the NRC's regulations, the Governor submits that this Board's only option is to decline to consider PGRE'S Motion. See Zn re Pacific Gas and Electric Com an (Stanislaus Nuclear Project),
CCH Nuc. Reg. Rpt. 0 30,211 (LBP 1977).
The Staff's motion for summary disposition must be denied for the fundamental reason that there are unresolved safety issues, indeed documented and sharply disputed issues, relevant to low power testing of the Diablo Canyon plant. The affidavits V
and other exhibits attached hereto convincingly demonstrate that critical material facts now in dispute necessarily preclude sum-mary disposition.
For example, PGSE and the Staff would permit low power testing at Diablo Canyon, relying upon the existing San Luis Obispo County emergency plans to provide adequate offsite response in the event of an emergency. However, as documented in the affidavits submitted herewith, there is, in fact, no local emer enc re aredness to res ond to an emer enc during low ower testin . This absence of local emergency preparedness is due to PGRE's continuin failure during the past several years to create the necessary interfaces and cooperation with local gov-ernments and other responsible entities. This failure of PGSE also necessarily causes PGSE's preparedness, particularly in the numerous instances where PGGE relies upon the readiness and
capabilities of local .authorities, to be woefully inadequate.
Indeed, the facts set. forth herein demonstrate that:
The existing local emergency response plans have not been and cannot now be implemented; There has been no training by the County or other responsible entities to prepare personnel with the capabilities necessary to implement the existing local plans; and San Luis Obispo County is not taking steps to implement its existing emergency response plans, which in fact are merely "payer plans."
The documented lack of preparedness to deal with Diablo Canyon emergencies clearly precludes grant of the Staff motion for summary disposition. Indeed, unless PG&E can sustain its legal burden and make the necessary record on emergency planning and the other pending issues before this Board at the May 19 hearing, the Governor submits that the Atomic Energy Act. and the NRC's regulations will require that PG&E be denied a low power license.
III. Prehearing The Staff and PG&E Motions for Reconsideration Conference Order Must, Be Denied.
of the The Staff and PG&E Motions for reconsideration continue to belabor an issue which has been decided against the Staff and pGRE on three occasions. This issue is whether there must be a hearing on Joint Intervenors'ontentions and Governor Brown's
Sub jects First, the Board ruled against the Staff and PGRE in its February 13 Prehearing Conference Order. Second, the Board fixed a hearing in its April 7 Notice of Hearing. Third, the Board on April 9 denied requests of PGSE, Joint Intervenors, and Governor Brown for reconsideration of the February 13 Order, this time stating sharply that the Board "finds no basis for changing its Order of February 13, 1981." Given the clarity of the Board's repeated rulings, the Governor submits that it would be appropriate for this Board to deny summarily the Staff and PGRE Motions'he Staff and PGGE basically re-argue that the Subjects and contentions already admitted by the Board should now belatedly be rejected, and that no hearing shou'ld be held because Governor Brown and the Joint Intervenors have not met the Staff's and PGRE's characterization of certain purportedly applicable crite-ria. Such arguments miss the point, because the Commission in CLI-81-5 set forth a clear directive to the Licensing Board which the Staff and PG8E in their zeal to bar any hearing on the 3/ In filings entitled "Request of Governor Edmund G. Brown, Jr. for Dismissal of Pacific Gas and Electric Company and NRC Staff Motions for Reconsideration," dated April 10, 1981, and "Motion of Governor Edmund G. Brown, Jr. for Sum-mary Denial of Motion of Pacific Gas and Electric Company to Reconsider ASLB Notice of Hearing dated April 6, 1981,"
dated April 17, 1981, Governor Brawn urged summary denial of the Staff and PGGE motions for reconsideration of the February 13, 1981 Prehearing Conference Order. Since the Board has not yet ruled on Governor Brown's summary denial filings, we address the matters briefly in this Opposition.
J4 ASLB Memorandum and Order, dated April 9,1981, at l.
merits -- continue conveniently to ignore. Thus, the Comission stated:
Pursuant to 10 C.F.R. 5 50.57(c), the filing of a motion for a partial initial decision initial on fuel loading and low power testing requires an determination by the Licensing Board on whether the evidentiary record compiled to that point is adeauate for such a partial decision. CLI-81-5, The Board's April 7 Notice of Hearing evidences that the Board has carefully considered the Commission's directive. According-ly, the Notice states that the Board has determined that the record compiled in the Diablo Canyon case to support the issuance of a license for fuel loading and low power testing is not adequate. Notice of Hearing at 1 (emphasis Following this statement, the Board affirmed the need for a hearing in its April 9 Memorandum and Order, wherein the Board stated that there is no basis for changing the February 13 Order. Therefore, even though the Staff and PGGE may not like the Board's conclusive ruling, the fact is that this is the law of the case.
5/ In view of the inadequacy of the record, the legal arguments of the Staff and PGSE regarding reopening records and late filed contentions are plainly irrelevant.rule This Board must develop an adequate record on which to on the Low Power Motion. Otherwise, there could certainly be no basis for granting the Low Power Motion and out of hand. At any rate, even ifit would need to be denied the reopening and/or late filed contention criteria were applicable, the Governor has satisfied these standards, as demonstrated at the January 28-29 Prehearing Conference and in the February 18, 1981 Objections filed by Governor Brown. The discussion here-after regarding the serious safety issues which are unre-solved further demonstrates the need for this Board to hear evidence on our subjects.
Governor Brown does not agree with all portions of the Board's Prehearing Conference Order. Indeed, the Governor would strongly argue that the denial of certain of his Subjects was incorrect. For example, the refusal of this Board to order the Staff to prepare an environmental impact appraisal under Section 51.5(b)(3) of the NRC's regulations clearly contravenes explicit regulatory requirements. The Governor submits that this failure to comply with such requirements will render any low power license in this proceeding illegal and void ab initio.
Nevertheless, the Governor has recognized the firmness of the Board's rulings and, on the assumption that the Board has ruled with finality, is not again requesting reconsideration of the Prehearing Conference Order. However, in the event that this Board decides to reach the merits of the PGRE and Staff motions for reconsideration, Governor Brown (1) urges that such motions be denied and (2) requests that the Subjects of the Governor described in Exhibit 1 hereto be reconsidered by the Board and admitted for the hearing. 6/
Governor Brcarn had prepared a motion for reconsideration of portions of the Prehearing Conference Order prior to receipt of this Board's April 7 Notice of Hearing and the April 9 Memorandum and Order. The matters which the Governor intended to raise on reconsideration are set forth in Exhi-bit 1 hereto.
IV. The NRC Staff and PGGE Motions for Summa Dis osition Must Be Denied.
The Staff and PGRE motions request summary disposition of all of Governor Brown I s Subjects: emergency planning, 7/ water
~
level indicators, and relief and block valves The Governor demonstrates below that the Staff and PGGE motions must be denied.
Well-settled law and NRC administrative practice require that the PGRE motion be denied summarily. Section 2.749(a) of the NRC's regulations requires that the movant annex to its sum-mary disposition motion "a separate, short and concise statement of the material facts as to which the moving party contends that vision of law. See Houston Li htin and Power Co. (Aliens Creek Nuclear Generating Station), ALAB-629, CCH Nuc. Reg. Rpt.
30,562 (1981). PGsE co letel i nores this mandato re uire-ment.
PGRE cannot complain about. this Board's summary denial of PGGE's motion. In the Stanislaus case, where PGGE similarly was the applicant and the movant for summary disposition, PGSE was chided for failing to comply with the very same summary disposi-tion requirement. In Stanislaus, the Board stated:
7/ Governor Brown Sub ject 3 and Joint Intervenors'ontentions 4 and 5.
8/ Governor Brown Subject 13 and Joint Intervenors'ontention 13.
+9 Governor Brown Subject 14 and Joint Intervenors'ontention 24.
I Subsection (a) Lof Section 2.749] clearly requires that "There shall be annexed to the motion a sepa-rate short and concise statement of the material facts as to which the moving party contends that there is no genuine issue to be heard." PGRE has failed to file this required statement of material facts. Such a requirement is not merel a roce-dural technicalit , but it is of substantive order to impose upon other arties a duty to file a statement of material facts as to which it is contended there exists a genuine issue to be heard under penalty of having uncontroverted material the Board to have this information in a readily available form in order to evaluate the merits of a motion for summary disposition. PGRE's len th (77 a es lus numerous exhibits) and ar menta-tive motion for summa dis osition wholl fails to com 1 with the re uirement of a conc'.se state-ment of material facts as to which there is no enuine issue. In re Pacific Gas and Electric Co.
Stanxslaus Nuclear Project, CCH Nuc. Reg. Rpt.
0 30,211 (LBP 1977) (emphasis supplied).
The same situation exists in this case. PG&E has acCain filed a lengthy and argumentative motion with numerous exhibits that, as the Board stated in Stanislaus, "wholly fails to comply with the requirement of a concise statement of material facts as to which there is no genuine issue." PGGE, like other partici-pants, must adhere to the NRC's regulations. For this blatant violation of regulatory requirements, the Governor submits that PGSE's motion should be summarily denied.
The Staff has also failed to follow strictly the NRC's sum-mary disposition regulations, although the Staff's violation is not so sweeping as that of PGRE. Section 2.749(b) requires that "La]ffidavits shall set forth such facts as would be admissible in evidence ...." The NRC Staff has violated this requirement.
For example, paragraphs 8-10, 12-13, 16-17, and 23 of the Staff's emergency planning facts, as to which the Staff alleges there is 10
no dispute (Sta ff Brie f at 5-7), are based upon the a ffidavit o f Mr. Sears. That affidavit, however, as it relates to these "material facts," recites that "I am informed by PG8E" or that the affiant has reviewed information of other sources'uch language .
indicting knowledge by having been "informed" demonstrates beyond doubt that the affiant does not have ersonal knowledge only of the fact that he has received information.
Indeed, allegedly to establish that the State and local emergency plans are in full force and effect (which is not true), Mr. Sears relies upon a letter from PGSE's Mr. Crane which itself is hear-
~sa . See Affidavit of Mr. Sears, 0 18. While the hearsay rules do not apply strictly in NRC hearings, the hearsa rules do a 1 at the summar dis osition sta e where a movant seeks to den another art the ri ht to a hearin . See In re Cleveland Electric Illuminatin Co. (Perry Nuclear Power Plant), ALAB-443, CCH Nuc. Reg. Rpt. % 30,246 (1977). Thus, many of the material facts allegedly established by the Staff are not, in fact, established at all. As to these "facts," the Staff has not met its Section 2.749 burden of going forward, and no response is required by Governor Brown. 10/
~10 The Staff has also mistated NRC procedural rules when it suggests that because Governor Brown may choose to proceed solely by cross-examination, summary disposition is somehow more appropriate than witnesses.
if the Governor were proceeding with Staff Summary Disposition Motion at 3. This Staff statement is erroneous, because under NRC regulations an intervenor clearly ~ma build its case by cross-exaimina-tion. See In re Tennessee Valle Authorit (Hartsville 30,278 (1978)
Nuclear Plant , ALAB-463, CCH Nuc. Reg. Rpt. %
and cases cited therein. Moreover, the Governor, as (Continued)
Despite the foregoing serious deficiencies of the Staff and PG&E filings, Governor Brown will, for the purpose of setting all relevant matters before the Board, respond to the merits of the Staff motion. This response also covers the major arguments in PGRE's motion, although the Governor reiterates that the PGSE motion should be summarily denied for reason of PGEE's gross vio-lation of 10 C.F.R. $ 2.749.
A. The Present State of Emer en Res onse Plannin at Diablo Can on Does Not Permit Issuance of a Low Power Licence.
The NRC and PGSE motions for summary disposition of the emergency planning issues must be denied for two interrelated reasons. First, the combined PGRE, State and local emergency planning regulations. Second, the facts described hereafter demonstrate that enuine issues of material fact exist concerning the extent of the inadequacy of emergency reponse preparedness for the Diablo Canyon low power testing program. See Exhibit 2 hereto, Governor Brown Statement of Material Facts As To Which There Is A Genuine Issue To Be Heard. Where such material facts are in dispute, summary disposition must be denied.
representative of an interested State under Section 2.715(c), has the unqualified right "to interrogate witnesses" and thereafter to advise the Commission on the basis of such interrogation. In any case, as indicated in the Governor's discovery responses, the Governor has not yet decided whether to present witnesses.
In view of the Staff and PGSE Motions for summary disposition and the substantial evidence developed in the attached affidavits, we may present testimony by some of the persons who have submitted affidavits.
12
(1) The Combined PGSE, State and Local Emer enc Res onse Plans Do Not Com 1 with 10 C.F.R. 50.47.
It has been evident since the March 1979 TMI-2 accident that the NRC's regulations governing emergency response planning are inadegnate. E.cC., Rogovin Report at 131. Accordingly, following the accident, 'the NRC began to upgrade these regulations. This upgrade culminated on August 19, 1980, with publication of the Commission's Final Rule on Emergency Planning. The rule became effective as to all licensees and applicants on November 3, 1980.
See 45 Fed. Recce 55402 (Aug. 19, 1980).
The new emergency planning regulations were not "sprung" on PGSE. A proposed revision of the previous emergency planning regulations had been published in 1979. See 44 Fed. Recce 54,308, 75,167 (1979). 'n addition, the NRC had held numerous public meetings and workshops and had issued interim guidance in January 1980 in NUREG-0654, "Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants for Interim Use and Comment."
The August 19, 1980, emergency planning regulations provide:
No o eratin license for a nuclear power reactor will be issued unless a finding is made by the NRC that the state of onsite and offsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. 10 C.F.R. 5 50.47(a)(l), 45 Fed. Recce 55409 (Aug. 19, 1980) (emphasis suppled).
The regulations further specify in detail the criteria that must be satisfied in order for the Commission to make the requisite findings'0 C.F.R. $ 50.47(b); Id. Part 50, Appendix E; NUREG-0654, Rev. 1 (Nov. 1980). Indeed, NUREG-0737, "Clarification of 13
TMI Action Plan Requirements," specifies at page 2-11 that 1
com liance with the revised emer enc lannin re ulations is a fuel load re uirement.
PGEE and the Staff have chosen to ignore the Commission's emergency planning regulations, rather than to accept the ines-capable verdict that PGSE is not in compliance. Section 50.47 establishes mandatory requirements that must be satisfied before any operating license -- the requested 5 percent power license is an operating license -- can be granted to PGGE. However, the combined onsite and offsite emer enc lans do not satisfy the regulatory requirements:
The Staff's SER, Supp. 12, at page III-3, (Exhibit 3 hereto), states that the combined onsite and offsite emergency plans do not comply with NUREG-0654, Revision 1 requirements. Indeed, even PGRE has found itself compelled to admit that the State and local plans "do not meet current. regulatory requirements." Letter from PGGE's Phillip A. Crane to NRC's Frank Miraglia, March 12, 1981, Exhibit 4 hereto.
PGGE, in a February 27, 1981, letter to the Staff's Dr.
Harold Denton, requested waiver and relief from certain emergency planning requirements, thus admitting again
~ll SER Supp. 14, Appendix B, entitled "Emergency Preparedness Evaluation" does not alter the conclusion that the combined applicant, State and local plans are not in compliance with regulatory requirements. In Exhibit 2 hereto, Governor Brown demonstrates that the Planning Standards of NUREG-0654 and the Planning Objectives of NUREG 75/ill are not satis-fied.
14
that there are relevant deficiencies in the current state of preparedness. See Letter from PGSE's Malcolm Furbush to Harold Denton, Feb. 27, 1981, Exhibit 5 hereto.
PGSE and the Staff both admitted in. discovery responses that the combined plans do not comply with 10 C.F.R. 50.47 emergency planning requirements 12/
The Federal Emergency Management Agency ("FEMA")
reviewed the San Luis Obispo County "Nuclear Power Plant Emergency Response Plan" and concluded that the plan does not meet NUREG-0654 requirements. See Exhi-bit 6 hereto.
A revision of the current "paper plans" for emergency response of San Luis Obispo County is at this time still in the conceptual stage of development. This new local plan will not be completed and implemented until some unknown future date. Affidavit of Kurt P. Kupper, Exhibit 7 hereto; Affidavit of Jeffrey Jorgensen, Exhibit 8 hereto; Affidavit of Richard J. Krejsa, Exhibit 9 hereto.
The revised State of California Nuclear Power Plant Emergency Response Plan has not received necessary 12/ See, e.cC., NRC Response to Governor Brown's Interrogatories, dated March 10, 1981, Interrogatory No. 1; Pacific Gas and Electric Company's Answers to Interrogatories and Document Production Requests dated February 20, 1981 of Governor Edmund,G. Brown Jr., dated March 11, 1981, Interrogatory No.
l.
15
review and concurrence and, accordingly, is not in effect.
In view of the persuasive uncontradicted evidence that the combined onsite and offsite emergency plans do not satisfy 10 C.F.R. 550.47, the Governor submits that the Staff and PGRE motions for summary disposition must be denied.
PGSE and the Staff, however, apparently take the position that for low power operation the combined applicant, State, and local emergency plans need not satisfy the requirements of Sec-tion 50.47. This position could be sustained only if there were an applicable exemption -from the mandatory regulatory require-ments coupled with a factual demonstration that the exemption criteria were satisfied. But, there is no such exemption.
Indeed, the only language that, might arguably be relevant is in 10 C.F.R. 5 50.47(c) (1), which provides:
Failure to meet the standards set forth in para-graph (b) of this subsection may result in the Commission declining to issue an Operating License; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.
The question of the applicability of this language, however, brings into focus the sharply disputed facts -- facts which Governor Brown and Joint Intervenors clearly have the right. to contest. The Governor demonstrates in the next section and in the attached exhibits the nature and extent of these disputed facts. It is for the May 19 hearing to adjudicate the merits of these disputed facts, not for action on the Staff and PGEE 16
motions for summary disposition. The plain requirement of law is for the parties now to move forward at the May 19 hearing to assert their respective rights, and indeed for PGGE to attempt to sustain its statutory burden of proof.
(2) The Combined PGSE, State, and Local Emer enc Res onse Plans Demonstrate the Absence of Ade uate Emer en Pre aredness.
No party contests that there must be effective emergency response preparedness, both onsite and offsite, before the requested low power licenses can be issued. Xndeed, Section 50.47(a) specifically states that the Commission must make the finding that "adequate protective measures can and will be taken in the event of a radiological emergency" before an operating license can be issued. 10 C.F.R. $ 50.47(a) (emphasis supplied).
The Staff and PG&E, however, argue that the regulations are satisfied by the existing "paper plans:" PGGE's February 1980 Emergency Plan, as revised since that date, the State of California Nuclear Power Plant Emergency Response Plan, and the San Luis Obispo County Nuclear Power Plant Emergency Response Plan and the San Luis Obispo County Nuclear Power Plant Emergency Evacuation Plan.
Governor Brown submits that the Staff and PG&E are plainly incorrect. First, the State of California plan, which has not yet received concurrence, in fact provides no immediate offsite response capability. Rather, the State plan, by its very own terms, constitutes a longer range, backup response capability.
17
Immediate direction of offsite emergency response to a. radiolo-gical emergency lies with the local, not the State government. 13/
Thus, the adequacy of onsite and offsite emergency preparedness depends upon the preparedness of PGSE and the local governments and, most significantly, on the readiness and capability of these entities to work together effectively and efficiently.
The emergency preparedness and working relationships of PGGE and the local governments are not adequate. PGRE has failed com-pletely to develop the necessary workable interfaces with offsite entities 'and the coordinated response capability required for adequate response to a radiological emergency. Thus, as docu-mented hereafter, San Luis Obsipo County and other local emergen-cy response organizations, due to PGRE's failure to establish workable interfaces, are completely unprepared to respond to an emergency at Diablo Canyon. This local unpreparedness, in turn, permeates PGGE's emergency plan, because the PGEE plan itself depends in significant, integral respects on effective interfaces with local governments and other offsite support entities.
The material facts which are in dispute and hence require denial of the Staff and PGGE motions for summary disposition are set forth in Exh'ibit 2 hereto. These facts are supported by documentary evidence attached hereto in the Exhibits, including the affidavits of the following persons:
13/ See San Luis Obispo County Nuclear Power Plant Emergency Response Plan at 10; State of California Nuclear Power Plant Emergency Response Plan (March 1981 revision), pp. 24-25.
18
Kurt P. Ku er. Mr. Kupper is an elected member of the San Luis Obispo County Board of Supervisors, which is responsible for development and overall direction of County emergency response to an emergency at Diablo Canyon. See Exhibit 7 hereto.
Jeffre Jor enson. Mr. Jorgenson is an elected member of the San Luis Obispo County Board of Supervisors, which is responsible for development and overall direction of County emergency response to a Diablo Canyon emergency.
See Exhibit 8 hereto.
Dr. Richard J. Kre'sa. Dr. Krejsa is a former member of the San Lu'is Obispo County Board of Supervisors. See Exhi-bit 9, hereto.
Dr. Howard Mitchell. Dr. Mitchell is the San Luis Obispo County Health Officer, charged with radiation monitor-ing and medical assistance responsibilities in an emer-gency at Diablo Canyon. See Exhibit 10 hereto.
Gordon Bruno. Mr. Bruno lives approximately two miles from the Diablo Canyon plant. See Exhibit ll hereto.
Alan C. Bond. Mr. Bond is an elected member of the San Luis Obispo City Council, which is responsible for City residents'ealth and safety in the event of an emer-gency at Diablo Canyon. See Exhibit 12 hereto.
Pete Dan ermond, Jr. Mr. Dangermond is Director of Parks and Recreation for the State of California and is responsible for emergency response preparedness at Montana de Oro State Park, which is located less than 19
two miles from the Diablo Canyon plant. See Exhibit 13 hereto.
Robert, E. Paulus. Mr. Paulus is Deputy Director of the California Department of Forestry, which is responsible for County fire and emergency medical response in the event of an emergency at 'Diablo Canyon. See Exhibit 14 hereto.
Richard L. Minor. Mr. Minor is the Area Coordinator for the Office of Emergency Services, Fire and Rescue Division, responsible for coordinating emergency fire and rescue resources in San Luis Obispo County. See Exhibit 15 hereto.
Richard B. Hubbard. Mr. Hubbard is a principal in the firm of MHB Technical Associates and has technical expertise on the significant risks associated with PGGE's pro-posed low power testing program. See Exhibit 16 hereto.
These affidavits and the other exhibits hereto establish the following deficiencies in onsite and offsite emergency prepared-ness at Diablo Canyon. See also Exhibit 2 hereto setting forth mater'.al facts zn dispute. 14/
14/ The attached Statement of Material Facts, filed pursuant to 10 C.F.R. $ 2.749(a), pertains specifically to the Staff summary disposition motion. Since PGRE failed to file the required statement of material facts, Governor Brown cannot discern what facts PGRE deems "material" and thus cannot file a counterstatement. See In re Pacific Gas and Electric Co. (Stanislaus Nuclear Project . The Governor nevertheless would contend that the attached Statement does, in fact,
-controvert any "material" assertions that PGGE could have made had it complied with NRC regulations.
20
The emergency response and evacuation plans for San Luis Obispo County are merely "paper plans." The local government has no capacity to implement these plans or otherwise give meaning to their statements. The County is thus not prepared to respond to an emergency at Diablo Canyon. The following matters, inter alia, snp-port this conclusion and result in the County not having the preparedness and capability to respond ade-quately to an emergency at Diablo Canyon:
(a) There has not been adequate training or coordina-tion of the County personnel who would be required to implement the County plans; (b) Equipment necessary for effective local response, including communications equipment, has never been obtained; (c) There have been no full-scale exercises of the local plans to determine their effectiveness.
(d) There has been no systematic public information program to instruct and educate the public on necessary emergency actions, including shelter and evacuation, to be taken in the event of an emer-gency at Diablo Canyon; and (e) The medical facilities available in San Luis Obispo County are not adequate to transport. and treat persons injured in a radiological emergency.
Affidavits of Messrs. Kupper, Jorgensen and Bruno, Exhibits 7, 8, and 11 hereto.
21
The County is not preparing to implement the current local plans. Affidavits of Messrs. Kupper and Jorgensen, Exhibits 7 and,8 hereto. Indeed, the County Board of Supervisors in March 1979, stated that the local plans were "unusable." Affidavit of Dr. Krejsa, Exhibit 9 hereto.15/
Even if the existing County plans were implemented, and there is no current program to do so, those plans would be inadequate because they do not prepare, even on paper, for a Diablo Canyon emergency in conjunction with an earthquake on the Hosgri Fault. Affidavits of Messrs. Kupper and Jorgensen, Exhibits 7 and 8 hereto.
"Applicants, particularly applicants in a seismically active area like California, should be prepared to demonstrate that their emergency plans can function in a major earthquake situation." In re Southern California Edison Co., (San Onofre Nuclear Generating Station), Licensing Board Memorandum and Order, April 8, 198l, at 2. Bee also Memorandum from Brian K.
Grimes, NRC, to John McConnell, FEMA, November, 1980, indicating the need for emergency plans for California nuclear reactors to address earthquake contingencies, Exhibit 17 hereto.
15/ Similarly, the NRC Staff, including then NRR Director Dr.
Harold Denton, was informed in June 1980 by Mr. Kupper at a meeting held at the Diablo Canyon plant by the Staff with PGGE officials and other parties that the County plans were unworkable and merely "paper plans."
22
Further deficiencies in local emergency preparedness for Diablo Canyon are documented by Dr. Mitchell:
(a) The County has inadequate radiation monitoring equipment; (b) The County has inadquate communications equipment for medical and radiation monitoring personnel; (c) The County Health Office has inadequate staff to provide both medical and environmental protection services during a Diablo Canyon emergency; (d) The County has inadequate medical facilities to care for and transport persons who might be injured in a Diablo Canyon radiological emergency; (e) The County is inadequately prepared to evacuate persons from the low population zone; and (f) While the County Health Office has "Standard Operating Procedures for Nuclear Power Plant Emer-gency Response" (these are attached to the County Emergency Response Plan), the County cannot respond effectively or implement these procedures.
Affidavit of Dr. Mitchell, Exhibit 10 hereto.
Emergency response preparedness at Montana de Oro State Park is inadequate.
(a) The Montana de Oro State Park is located approxi-mately two miles from Diablo Canyon and accommo-dates as many as 1,500 visitors at one time.
(b) The Park consists of extremely rugged terrain, which will make effective emergency response, 23
especially evacuation, d ifficult under the best of circumstances.
(c) Neither San Luis Obispo County nor PGRE (except for inquiry concerning placement of sirens) has ever officially contacted the Park concerning coordinated emergency actions in the event of a radiological emergency at Diablo Canyon. Because of this exclusion from planning, the Park is not prepared for effective response in a radiological emergency.
(d) The Department lacks communications equipment and protective clothing that would be necessary for an effective response to a Diablo Canyon emergency.
Affidavit of Mr. Dangermond, Exhibit 13 hereto.
The Department of Forestry of the State of California, which provides fire and other emergency services in San Luis Obispo County, is inadequately prepared for an emergency at Diablo Canyon. Under a February 13, 1979, letter agreement with PGGE, the Department agreed to provide fire suppression support for inplant fires and other emergency incidents at Diablo Canyon. See Attachment to Affidavit of Mr. Paulus, Exhibit 14 here-to. This February 13, 1979 agreement is also part of Appendix 7 to the PG6E Emergency Plan.
16/ lt is unclear whether the proposed sirens, will alert if installed, persons in all parts of the Park. Affidavit of Mr. Dangermond, Exhibit 13 hereto. Thus, the Staff's "material fact" Number 12 is clearly in dispute.
24
I (a) The Department of Forestry has only limited equip-ment and personnel available to respond promptly to an in-plant emergency at Diablo Canyon; (b) Department personnel have received no detailed training on necessary techniques or equipment for responding to an in-plant fire or a medical emer-gency incident at Diablo Canyon. Thus, they could not, utilize the most effective. fire suppression methods which might otherwise be available; (c) Contrary to the assertion in paragraph 8.1.2.2(d) of the PGGE Emergency Plan, refresher training in radiation protection practices and procedures is not included as part of an annual tour for Depart-ment personnel of the Diablo Canyon facility and its fire suppression equipment; (d) The planned twice-yearly fire drills and annual walk-through tours for Department personnel, as called for in the PG&E plan, have in fact occurred only sporadically and have failed to include sig-nificant numbers of Department personnel who might be called to respond to in-plant emergencies; and (e) The'epartment of Forestry has rescinded the February 13, 1979 agreement, although the Depart-ment remains ready to discuss with PGRE the bases for effective emergency response coordination.
Affidavit. of Mr. Paulus, Exhibit 14 hereto.
25
There has been no collective and coordinated planning or training regarding how mutual aid fire and rescue resources in San Luis Obispo County would be used to combat a fire or other emergency involving structures at Diablo Canyon. This lack of planning and training would significantly hamper the operating. capability of responding fire companies. Proper training and advance planning for adequate response to a Diablo Canyon emer-gency should include:
(a) Establishing effective communications systems between fire departments and between fire departments and all county agencies with emergency response responsibility.
(b) Assessment of training needs and then actually carrying out the training. This must include actual hot-fire training. The training must be carried out regularly, such as on a monthly basis.
(c) Assessment of unique equipment needs, especially items such as special monitoring equipment, per-sonnel protection suits, and long-term breathing apparatus. This equipment must then be purchased and fire-fighters given training in its use.
(d) Assessment of how and where to carry out decontam-ination of exposed victims. Affidavit of Mr.
Minor, Exhibit 15 hereto.
The City of San Luis Obispo has prepared no emergency response plans of its own and has been excluded from 26
County emergency response planning. This is particu-larly significant because the County does not have jurisdiction to direct City activities. Therefore, the County plan could cover the area of the City only if there were coordinated planning between the County and City governments. Since there has not been such coor-dinated preparation, the City of San Luis Obispo, which is merely 8 miles from Diablo Canyon, is exposed to the exigencies of an emergency at Diablo Canyon and is unprepared to act in response to such an emergency.
ll Affidavit of Mr. Bond, Exhibit hereto.
The foregoing material facts, each supported by affidavit, document the inadequacies of preparedness for an emergency at Diablo Canyon and thus preclude summary disposition of the issue. In summary these facts show:
(l) There is, in fact, no local emergency response pre-paredness.
(2) The PGRE plan, which depends upon effective interfaces with the local governments and upon local readiness, is inadequate due to the lack of preparedness of the responsible governments and the failure of PGSE to establish the essential working relationships.
Finally, with respect to the emergency preparedness issue, it cannot be argued by PGSE or the Staff that the complete absence of readiness of the local response entities and of PG&E to work effectively with the local entities to prepare for a Diablo Canyon radiological emergency is somehow insignificant at 27
A low power. First, 10 C.F.R. $ 50.47 (as well as its predecessor preparedness. Second, PGRE ' own witness, Mr. Brunot, agrees that there must be preparedness out to 6 miles for plume exposure and 10 miles for the ingestion pathway. See Affidavit of Dr.
William K. Brunot at 5 (attached to PGGE Motion for Summary Di sposition) . See also Affidavit of Richard B. Hubbard, Exhibit 16 hereto. Third, the af fidavit of Richard B. Hubbard (Exhibit 16 hereto) documents risks associated with low power testing and the need for effective emergency response planning. Mr. Hubbard establishes, inter alia, the following:
(a) The Staff's summary probability analysis of low power risks as presented in the introduction to SER Supp. 10 has serious shortcomings which understate the risks of low power operation; (b) At 5 percent power, a significant radionuclide inven-tory would be developed which, in an accident, would pose a sub-stantial prompt health hazard; and (c) At 5 percent power, Diablo Canyon would be the equiva-lent of a 54 MW/E or 167 MW/T power reactor. For power reactors of comparable size and for much smaller test reactors, the NRC is now requiring detailed offsite emergency planning. Indeed, for reactors under 250 MW/thermal, the NRC/FEMA Steering Committee requires a plume exposure EPZ of 5 miles and an ingestion pathway EPZ of about 30 miles. Id.
In conclusion, the PGGE and Staff motions for summary dispo-sition of the emergency planning issue must be denied. Governor 28
Brown has presented facts which demonstrate serious deficiencies in the PGSE plan and a total lack of any offsite preparedness of local response entities or of essential PGSE-local government working relationships.
B. The Staff and PGEE Motions for Summa Dis osition of the Inade uate Core Coolin Issues Must be Denied.
Governor Brown's Subject 13 and Joint Intervenors'onten-tion 13 contest the adequacy of PGEE's proposed system of reactor vessel water level indication. The Prehearing Conference Order accepted this issue primarily to determ'ine whether the proposed January 1, 1982, installation date was timely. The discovery which has proceeded reveals that an earlier installation date now is planned, but that the indication system itself may not meet regulatory requirements. Thus, Governor Brown submits that sum-mary, disposition must be denied because sharply disputed facts exist regarding the adequacy of PG5E's proposed system; See Exhibit 2 hereto for Statement of Material Facts in Dispute.
A reliable and unambiguous reactor vessel water level indi-cation system ("RVWLIS") is extremely important to safe operation of Diablo Canyon. The presently installed instruments which Diablo Canyon operators will rely upon for indications of inade-quate core. cooling ("ICC") are the same type of instruments relied upon during the TMI-2 accident, but with a wider range of readout; namely: wide range reactor coolant pressure, wide range reactor coolant temperature, and core exit thermocouples. There is general agreement that present displays do not provide an indication of vessel water level. Affidavit of Mr. Minor, Exhi-bit 19 hereto.
29
However, the coolant pressure and temperature measurements are not, by themselves, an unambiguous and easy to interpret indication of ICC. Rather, considerable analysis and judgment would be needed to determine if ICC conditions existed based on these parameters alone. Id.
PGGE proposes to install an RVWLIS of Westinghouse design to
""'P"""
uncovering the core. No other present or planned Diablo Canyon instrument is designed to provide such data. Id. 17/
The Westinghouse RVWLIS proposed for Diablo Canyon is still under development with ongoing testing not scheduled to be com-pleted until November, 1981, and reports to be provided to the NRC by January, 1982. Despite its untested and unproven status, the RVWLIS is planned for installation at Diablo Canyon before fuel load. Id.
The PGRE system has not been demonstrated to be adequate and, accordingly, the Staff and PGGE motions must be denied. The primary deficiencies in the PGSE system are as follmrs: '8/
17/ The Subcooling Margin Meter which PGRE intends to install will provide only a gross indication of coolant conditions to warn the operator when there is the possibility of boiling and void formation in the primary loop. This, by itself, is not an indication of the core being uncovered or the fuel being inadequately cooled. Id.
18/ Governor Brcvn has been seriously hampered in evaluating the PGSE system because the details of the system have been withheld from the Governor's technical experts on the basis of proprietary information. The Governor has requested PGSE to make those data available pursuant to appropriate safe-guards so as to ensure confidentiality, but no response has been received. Until these data are supplied, a ruling on summary disposition of the ICC issues should be deferred.
30
(a) The reading of reactor vessel level does not meet the requirement of being unambiguous and easy to interpret.
There are conditions where the system is described as providing an erroneous or uncertain reading of water level. See Affidavit of Mr. Minor, Exhibit 19 hereto.
(b) The system does not provide coverage for all types of transients or accidents and thus might provide ambiguous or misleading information to the operator.
Specifically, coverage is lacking under conditions of void redistribution, level swell, coolant pumps being turned on or off, small breaks in the vessel head, and anticipated transients without scram ("ATWS"). Id.
(c) The system design has not been fully tested or proven over the spectrum of accident conditions and cannot, therefore, be evaluated as an unambiguous indication.
Id+
(d) PGRE's description is unclear as to the number of data processors and the algorithm used to create the dis-plays. If there is only one data processor, it is vul-nerable to single failure and/or erroneous indications on each of the redundant displays. If there are two processors, there is no indication of how the operator is to deal with a discrepancy in the two output dis-plays. This is an ambiguous condition which could easily mislead or confuse the operator. The system has two additional points of potential single failure at
the vessel .penetration points used for sensing pres-sures for the differential presure instruments. Plug-ging or blockage of these points could provide an ambiguous and erroneous indication. Id.
(e) The data processor(s) and the displays are not required to be qualified for seismic conditions which the plant may be expected to experience. Thus, there is no assurance that the system will survive a severe earth-quake. In the event the data processor fails or one of the redundant displays fails, there is no indication of the failure or which of the redundant display devices the operator is to rely upon. Id.
The NRC Staff argues in its motion for summary disposition that there is no more direct method of detecting ICC than the core exit thermocouples proposed to be used by PGGE. Staff Motion at 8. The Staff misses the point. While the thermo-couples, if interpreted properly, would provide an indication of ICC, they do not directly indicate core water level, an indica-tion which would have been exceptionally useful at TMI. It is the absence of such a water level indicator one that, also would reliably indicate the margin of water above the fuel as well as actual lack of cover of the core which raises concern about the ability to detect ICC at Diablo Canyon.
The Staff also suggests that the RVWLIS is not needed for 1cv power operation. However, there is no other instrument that to ICC. One cannot rule out the possibility of accidents, even 32
at low power, which will require swift and accurate operator responses. The Staff's judgment is that somehow there will be time for the operator to make the necessary diagnoses for mitiga-tion of an accident. However, since some safety systems will be disabled for the low power tests and since the plant will be in the shakedown phase, this additional system should be available for the operators'se. Further, if the low power test program is to be used by PGGE to provide training for its operators (Low Power Motion at 2), the operators should have a properly designed and tested RVWLIS available to experience its capabilities and deficiencies before full, power operation. Affidavit of Mr.
Minor, Exhibit 19 hereto.
For the foregoing reasons, the Staff and PGEE motions for summary disposition of the ICC issues must be denied.
C. Summa Dis osition Of Relief and Block Valve Issues Must Be Denied.
Governor Brown's Subject 14 and Joint Intervenors'onten-tion 24 contest whether relief and block valve testing and veri-fication should be completed before low power operation is autho-rized. The material facts specified by the Staff are sharply con-troverted by Governor Brown (see Exhibit 2) and, thus, there is no basis for grant of summary disposition.
There are several unresolved safety-related matters relating to valve performance. First, notwithstanding the Staff's appar-ent confidence in performance of these valves, there is no evi-dence that the EPRI test program will, in fact, be adequate to demonstrate reliable operation of relief and block valves at 33
Diablo Canyon. For the EPRI test results to be significant for Diablo Canyon,'the testing must:
- 1. Be conducted on a statistically significant number of samples of each valve type;
- 2. Evaluate valve degradation or lifetime (in terms of number of operations);
- 3. Cover the full range of operating, transient, and accident conditions; and
- 4. Be representative of the Diablo Canyon physical piping and arrangement.
See Affidavit of Mr. Minor, Exhibit 20 hereto. PGGE and the Staff have not demonstrated that the foregoing conditions are met. Indeed, these conditions are not met in several instances:
the testing does not include ATWS conditions; the preliminary block valve test is a sample of one; and only steam conditions (of unspecified temperatures and pressures) have been tested.
Id.
Significantly, the testing which has proceeded thus far has revealed a serious safety concern. Several of the bio'ck valves sampled (3 out of 7) failed to close when operating under a dif-ferential pressure of between 750 and 1500 psid. See I a E Bull.
81-02, April 9, 1981, Exhibit 21 hereto. See also Affidavit of Mr. Minor, Exhibit 20 hereto. Thus, when the full range of pres-sure and steam quality conditions is tested and the plant-speci-fic operating and accident requirements are defined, there may be additional problems and failure modes to report. Id.
34
The failures in the EPRI tests cast serious doubt on the acceptability of allowing Diablo Canyon to start up while testing continues to July 1982. Xd. At a minimum, this situation presents disputed factual issues regarding performance of values at Diablo Canyon. These issues must be resolved at the May 19 hearing.
The block valves perform critical functions as elements of the reactor coolant pressure boundary. To be consistent with requirements of 10 C.F.R. 50, Appendix A, General Design Criteria 1, 14, 15 and 30, each of these valve types should be tested and qualified for correct and reliable operation over the range of accident conditions which the plant may experience. This should include the conditions which would exist as a result of an ATWS accident. Affidavit of Mr. Minor, Exhibit 20 hereto.
The Staff suggests, nevertheless, that despite deficiencies in testing of relief valves, this situation need not be of con-cern because the Staff can compel the Licensee to take corrective action should that be deemed prudent. However, in view of the uncertainties in the EPRX test results, that course would not be consistent with the public health and safety or with the Commis-sion's ALARA requirements. Id. There is clearly an advantage in doing work on a plant before it goes into operation. Work which is deferred once may be deferred again, at which time plant expo-sure levels may be considerably higher. Id.
Finally, PORVs provide a variety of safety related func-tions, such that deferral of resolution of these matters cannot be tolerated. For example, PORVs relieve pressure during low 35
I' 1 ~ ~
temperature operation and may also be used in the "feed and bleed" mode of operation. Absent careful and complete testing, however, there can be no confidence that these important func-tions will, in fact, be performed. Id. Such confidence is a prerequisite to issuance of ~an operating license. However, PORVs have a documented tendency to stick open and block valves, based upon the EPRI results, may lack reliability. Id. In these circumstances, a material factual dispute clearly exists regard-ing the adequacy of these valves at Diablo Canyon.
Accordingly, summary disposition must be denied, and there must be a clear resolution at the hearing of these serious safety concerns.
Respectfully submitted, Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814 ILLA'HRISTOPHER Herbert H. Brown Lawrence Coe Lanpher H AND PHILLIPS g P~C ~
1900 M Street, N.W.
Washington, D. C. 20036 Attorneys for Governor Brown April 24, 1981
P" J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSXNG BOARD
)
In the Matter of Docket Nos. 50-275 O.L.
PACIFIC GAS AND ELECTRIC COMPANY 50-323 O.L.
)
(Diablo Canyon Nuclear Power Plant, )
(Low Power Test Proceeding)
Units 1 and 2)
CERTIFXCATE OF SERVICE I hereby certify that copies of the "OPPOSITION OF GOVERNOR EDMUND G. BROWN JR. TO THE NRC STAFF AND PACIFIC GAS AND ELECTRIC COMPANY MOTIONS FOR RECONSIDERATION AND
SUMMARY
DISPOSITION" in the above-captioned proceeding have been served to the following on April 24, 1981, as follows:
Chairman **
Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman **
Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 John F. Wolf, Esq., Chairman
- Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Glenn O. Bright
- Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. Jerry R. Kline
- Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 William J. Olmstead, Esq. )
Edward G. Ketchen, Esq. )
Lucinda Low Swartz, Esq. )
Office of Executive Legal Director BETH 042 U. S. Nuclear Regulatory Commission Washington, D. C. 20555
C' 2.
Secretary **
U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ATTENTION: Docketin and Service Section Mrs. Elizabeth Apfelberg **
c/o Nancy Culver 192 Luneta Drive San Luis Obispo, CA 93401 Janice E. Kerr, Esp. **
Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming **
1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler **
Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, CA 93105 Mr. Gordon Silver ~ **
Mrs. Sandra A. Silver )
1760 Alisal Street San Luis Obispo, CA 93401 John Phillips, Esp. **
Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, CA 90067 Bruce Norton, Esp. **
Norton, Burke, Berry G Junck 3216 North Third Street Suite 300 Phoenix, Arizona 8'5012 Philip A. Crane, Jr., Esp. **
Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94106 David S. Fleischaker, Esq. **
1735 Eye Street, N. W. Suite 709 Washington, D. C. 20006 Arthur C. Gehr, Esq. **
Snell a Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073
3.
llr. Richard B. Hubbard **
MHB Technical Associates 1723 Hamilton Avenue Suite K San Jose, CA 95125 Mr. Carl Neibe'rger **
Telegram Tribune P. O. Box 112 San Luis Obispo, CA 93402 Byron S. Georgiou, Esq. **
Legal Affairs Secretary Governor's Office State Capitol Sacramento, CA 95814 Lawrence Coe Lanpher HXLL, CHRIS OPHER AND PHlLLIPS, P. C.
1900 M Street, N. W.
Washington, D. C. 20036 April 24, 1981
- By messenger
- By U. S. mail, first class
EXHIBITS No.
Descri tion Subjects Erroneously Rejected in the. February 13, 1981 Prehearing Conference Order Governor Brown Statement of Material Facts As to Which There is a Genuine Issue to be Heard SER, Supp. 12, pg. III-3 Letter from Philip A. Crane, Jr., PGGE, to Frank J.
Miraglia, Jr., NRC, dated March 12, 1981 Letter from Malcolm H. Furbush, PGGE, to Harold R. Denton, NRC, dated February 27, 1981 FEMA Memorandum Reviewing San Luis Obispo County Emergency Response Plan, dated May 8, 1980 Affidavit of Kurt P. Kupper, dated March 31, 1981 Affidavit of Jeffrey Jorgensen, dated March 31, 1981 Affidavit of Richard J. Krejsa, dated March 31, 1981 10 Affidavit of Dr. Howard Mitchell, dated March 31, 1981 Affidavit of Gordon Bruno, dated March 30, 1981 12 Affidavit of Alan C. Bond, dated April 1, 1981 13 Affidavit of Pete Dangermond, Jr., dated April 13, 1981 14 Affidavit of Robert E. Paulus, dated April 17, 1981 15 Affidavit of Richard L. Minor, dated April 1, 1981 16 Affidavit of'ichard B. Hubbard, dated April 16, 1981 17 Memorandum from Brian K. Grimes, NRC, to John McConnell, FEMA, November 1980.
18 Letter from Philip A. Crane, Jr., PGGE, to Frank, J.
Miraglia, NRC, dated March 13, 1981.
19 Affidavit of Gregory C. Minor, dated April 22, 1981 20 Affidavit of Gregory C. Minor, dated April 21, 1981 21 I & E Bull. 81-02, Failure of Gate Type Valves to Close Against Differential Pressure, April 9, 1981.
EXHIBIT 1 SUBJECTS ERRONEOUSLY REJECTED IN THE FEBRUARY 13'981 PREHEARING CONFERENCE ORDER Governor Brown urges the Board to reconsider its Febru-ary 13, 1981 Prehearing Conference Order in three respects: the denial of Subject 17 concerning the need to prepare an environ-mental impact appraisal ("EIA"); the denial of Subjects 6-12 which specifically contest PGGE's factual assertions in the Low Power Notion; and the denial of Subject 15 regarding the adequacy of PG&E's procedures for dissemination of operating experience.
The bases for reconsideration are described below.
Subject 17: Need for an Environmental Im act A raisal The Licensing Board denied Governor Brown's request that the Staff be required to prepare an EIA regarding PGGE's proposed low power testing operations. See Prehearing Conference Order at 3-7. This issue must be resolved in the Governor.'s favor, because operation at low power without completion of necessary environ-mental analyses would constitute a violation of the National 1/
Environmental Policy Act and. the NRC's regulations thereunder.
1/ This issue was raised in a timely manner by the Governor.
There was no need for the Staff to prepare environmental analyses of the low power test program until PGGE sought authorization to conduct such a program. Accordingly, under all regulations and the guidance of the NRC in its Revised Policy Statement and in CLI-81-5, this issue is properly before the Board.
The failure of the Board to order the preparation of an EIA by the Staff, as a matter of law, permeates the entire low power test license proceeding and renders any low power test license that might later be issued void ab initro. The Governor, therefore, again requests that the Staff be directed to prepare the EIA prior to the low power test license hearing so that the Governor, based on the EIA, can demonstrate that (1) there is no need in this case for low power testing prior to issuance of a full power license; (2) the costs of low power testing greatly outweigh any benefits, of which there are in fact none; and (3) the technical, legal, and economic burdens of decontaminating and decomissioning the Diablo Canyon plant, if operated at low power and subsequently denied a full power license, have been ignored by the Staff and PGGE in contradiction of settled .legal doctrine and practice.
In ruling that the Staff does not need to prepare an EIA, the Board ignored the clear, mandatory language of the NRC's regulations, especially Sections 51.5(b)(3), 51.5(c)(1), and 51.7, which direct the Staff,to prepare an EIA for operation of a reactor "at less than full ower." The Board apparently based its Prehearing Conference ruling upon the existence of the full power EIS for Diablo Canyon. Prehearing Conference Order at, 5.
However, the existence of the full power EIS, as a legal matter, is immaterial to the need for an EIA related to low power operation,
because Section 51.5(b) of the re ulation itself, after s ecif ing that full vower EISs must be re ared, further and sevaratel mandates re aration of a distinct EIA for a low ower test a li-cation.
The EIA is required in this case not only because of the literal language of Section 51.5(b), but because the full power EIS neither "subsumes" the factual issues of low power testing at Diablo Canyon nor considers the costs and benefits of proceeding prematurely wi;th low power testing as PGGE proposes to do. The 3/
cases cited by PGGE and the Staff and relied upon by the Board are irrelevant, immaterial, and simply not on point.
For example, Maine Yankee, which was cited by the Board, con-cerned only the question whether the full power EIS was defective for failure to consider two alternatives granting a license for less than 40 years or at less than full rated power. In re Maine Yankee Atomic Power'o. (Maine Yankee Atomic Power Station)
ALAB-161, 6 AEC 1003, 1014 (1973). The Board rejected intervenors'rgument, however, on the factual basis that intervenors had failed 2/ The Board incorrectly suggested doubt whether Section 51.5(b)
(3) applies to a low power testing license. Prehearing Conference Order at, 6. Section 51.5(b)(3) applies explicitly to instances where authorization is sought to operate a capacity. '0 reactor "at less than full power or at less than the desi n C.F.R. 551.5(b)(3 . Thz.s regulation clearly does apply to the instant case, and the Board and other parties can cite no law, regulation, or precedent to the contrary.
3/ Prehearing Conference Order at 5.
to make a showing that these alternatives or the facts presented in that case reasonably needed to be considered. Id. at 1014-15.
The other decision relied upon by the Board, Portland Gen-eral Electric Co. (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717 (1978), is similarly off point. In Portland, the Board considered t
whether a plant could resume operation on an interim basis without preparation of an EIA. The Board ruled this was permissible be-cause the operation would involve the recisel same impacts (full power operation) as had been evaluated previously. Id. at 744.
Clearly, even conceding for the sake o f argument that those decisions were sound, the cases are factually irrelevant and they neither control nor otherwise supply precedent for the Diablo Canyon proceeding.
Thus, the foregoing cases do not involve the clearly identi-fiable environmental impacts presented here, nor do- they offer pertinent. legal precedent. The most that those cases stand for is that a factual determination must be made to identif reasonable alternatives and to establish the sco e of anal sis re uired in the EIA. The Governor is not raising matters that are speculative or remote, and the contrary arguments of PG&E and the Staff are simply mischaracterizations of the Governor's position. Rather, the Governor contends that: (1) there is no need for the low ower test license at this time; "need," the Governor emphasizes, is itself a matter that must be considered'n the EIA under the explicit provisions of CEQ.'s regulations, 40 .C:.F.R..51508.=9, and Part.-51; and, (2) the
testing and subse uentl den in the full power license is a 4/
s ecific reasonable alternative requiring analysis.
The Governor is merely requesting this Board to apply one of the most fundamental requirements of the NRC's regulations and NEPA i.e., preparation of an EIA to determine whether to pre-pare an EIS. The Governor has repeatedly cited the CEQ's regulations, the NRC's own requirements in Part 51, the Administra-tive Procedure Act, and judicial decisions which overwhelmingly 5/
support our position. This Board, in not following the plain 4/ It has been argued by PGaE and the Staff and apparently agreed to by the Board that there always is a risk that a license, after being issued, may subsequently be revoked and that the environmental consequences of such speculative events do not merit study. Prehearing Conference Order at 6. This argument, as applied to the facts of the instant case, is faulty on several counts. First, it ignores the direct mandate of Part. 51 which requires preparation of an EIA for low power testing. Further, it, ignores the unique circumstances of
~
the Diablo ~Can on case, which presents extraordinary safety issues concerning this nuclear plant. It is fair to say that the seismic issue, as it if resolved in the Governor's favor ultimately must be, would mean that this plant would never operate. Indeed, in the June 24, 1980 decision re-opening the seismic case, the Appeal Board noted that the Imperial Valley earthquake data might lead the Board to a different result. See ALAB-598. Thus, the possibility that low power operation might never "flower" into full power operation is no speculative matter. It is a serious, real possibility, and, thus, the consequences and costs and benefits of contaminating the reactor at low power must be analyzed under the NEPA regimen.
S/ See, ~e , Governor Brown's Motion for Stay of Proceeding, dated December 8, 1980.
I letter of the law, has simply erred. Accordingly, the Governor requests this Board to direct, the Staff to prepare the ElA re-quired by the NRC's regulations,. or to set forth for the record in subsequent proceedings in this case the legal basis and factual rationale for discarding the unyielding mandate of such regulations.
PGGE in the.Low Power Motion The Governor's second Objection which must be sustained concerns denial of Governor Brown Subjects 6-12. See Prehearing Conference Order at 32-34. Xn each of these Subjects, Governor Brown uoted or ara hrased the .exact lan ua e of PG&E's Low Power Motion and .put into controversy the claims made by PGGE ~
itself. Xn each case, this Board found the Subject, deficient, either for lack of relationship to NUREG-0737 or for insufficient basis or specificity. The Board's ruling, intrinsically devoid of logic, should be reversed.
This Board, on October 2, 1980, ruled that PGGE's Low Power 6/
Motion was sufficient to. justify further proceedings, therefore denying 7/
Governor Brown's request to dismiss PGGE's Motion for insufficiency due to PGGE's failure to satisfy the NRC's -'egulations, Section 2.730 and -2..732; which set forth the substantive requirements 6/ Order Relative to PGaE's Motion for Low Power Testing, dated October 2, 1980.
7/ Governor Brown filed two substantive pleadings demonstrating the gross deficiencies in PGGE's Low Power Motion. See Answer and Opposition of Governor Edmund G. Brown, Jr., to Motion of Pacific Gas and Electric Company for Licenses for Fuel Loading and Low Power Testing, dated August 4, 1980; Response of Governor Brown to the ASLB Order Dated August 14, 1980, dated September ll, 1980.
for motions. The Board noted that "while the PGaE Motion could have been more comprehensive, 8/
it 'does meet the minimal requirements to commence the proceeding. However, if the Board found PGGE' Low Power Motion sufficient in October, there can be no logical or legal basis for the Board now to rule that Governor Brown cannot contest on substantive grounds the ~ver factual assertions that the Board already deemed sufficient. Indeed, the Board's statements that the Governor's Subjects, which quote PGGE's own words, are irrelevant to this proceeding defy reason.
Due process, the Administrative Procedure Act, and the NRC's own regulations protect a participant's right to contest the factual assertions made by the proponent of a motion. The effect of this Board's ruling is to allow a party, PGGE, to make factual assertions in a motion and then to deny other participants the right to contest those very factual assertions. The Board cannot permit such a blatant denial of procedural and substantive 9/
rights.
8/ Order Relative to PGGE's Motion for Low Power Testing, dated October 2, 1980, at l.
9/ The Commission's "reopening" and "late filed contention" criteria are clearly inapplicable to Subjects 6-12. It absurd to suggest that a party could have years earlier sug-is gested contentions contesting asserted bases for a motion which not yet had been made. As noted above, fundamental due process compels this Board to provide the Governor an opportunity,to contest these matters which were first raised by PGsE in its Low Power Motion. The NRC's Regulations in Section 2.730 explicitly give a party the right to reply to, and to oppose, the motion of another party. The Governor has entered such opposition in this case.
Further, given the fact that Governor Brown adopted PG&E's own words as the basis of a Subject, the Board cannot find any reasonable basis on which to reject that Subject for lack of specificity, insufficiency, or irrelevance.. If Governor Brown's Sub'ects usin PG&E's own words are somehow inadequate, there is onl one lo ical conclusion that this Board can draw: PG&E's Motion itself is inadequate. Accordingly, if the Board adheres to its Prehearing Conference ruling on Subjects 6-12, we hereby restate our request of August 4,. 1980, to dismiss PG&E's Low Power Motion for the reasons set forth therein. Otherwise, this Board, must set Subjects 6-12 for hearing.
The Governor's final objection conerns the Board's denial of Governor Brown Subject 15. Subject 15 states:
Whether PG&E has established adequate procedures for dissemination of operating experience, obtained from operation of both Diablo Canyon and other nuclear plants, to PG&E personnel. (SER, Supp. 10,, p. I.C.-7).
The Board denied this Subject for lack of "the necessary basis and specificity to qualify as a contention." Prehearing Conference Order at 35.
The Board's ruling aQiply is incorrect. In Gulf States Utili-ties Co., ALAB 444, CCH Nuc. Reg. Rptr. 5 30,250 (1977), the Appeal Board ruled squarely that an Interested State satisfies it references I ~
pleading requirements under Section 2.715(c) when
SER items which it seeks to litigate. Governor Brown plainly satisfies this ALAB requirement in Subject 15. Thus, there can be no basis for 'denial of the Subject.
Further, the relevance of this issue to this proceeding is clear. In investigations since the TMI accident, it has been dis-closed that other power reactors experienced serious PORV-related problems prior to the TMI accident. These problems, however, had not been carefully explored, and TMI operators had not been given training regarding recognition of or response to these problems.
Thus, the Rogovin Report stated:
The accident at Three Mile Island on March 28, 1979, had almost happened before twice. Virtually idential "transients," as they are called in the industry, occurred in 1974 at a Westinghouse reactor in Beznau, Switzerland, and in 1977 at Toledo Edison's Davis Besse plant in Ohio, a Babcock G Wilcox reactor similar in design to the one at Three Mile Island.
Both involved the same failed-open pressurizer relief valve (PORV),. and the same misleading indications to operators that the reactor coolant system was full of water. In both cases, operators diagnosed and solved the problem 'in a matter of minutes before serious damage could be done.
The NRC never learned about the incident at the Beznau reactor until after the TMI-2 accident. At.
the time, Westinghouse was notified, but in 1974 the manufacturer was not required to report to the NRC such occurrences at foreign reactors. Westinghouse concluded that the actions by the Swiss operators proved the validity of an earlier Westinghouse study showing that, in this kind of incident, operators would have enough time to react to a stuck-open valve and correct the situation. A brief account of this earlier study had, in fact, previously been sub-mitted to the NRC. But neither the Beznau incident nor the earlier study had prompted Westinghouse to notify its customers or the NRC that operators might well be misled by their instruments open.
if a valve stuck
The Davis Besse accident was intensively analyzed-by Toledo Edison, by Babcock 6 Wilcox, and by the NRC.
Each of these studies identified what should have been perceived to be a significant safety issue. But be-cause no effective system for evaluating operating experience was in effect, none of the results of these studies were ever communicated to Metropolitan Edison or its operators at the TMZ-2 plant.. (pg. 94).
Zn SER, Supp. 10, the Staff states: "[t]he applicant is semination of operating experience." (pg. I.C.-6, emphasis supplied). Governor Brown does not contest that PGGE is developing procedures, but is deeply concerned about the adequacy of those procedures, particularly in view of the industry experience to date. The record in this case clearly does not support any find-ing that.PGGE's procedures are, in fact, adequate. Indeed, in SER, Supp. 12, the Staff has stated that the PGGE procedures need further revision. (pp.'-20 and 1-21). Governor Brown clearly has the right to contest this crucial safety-related fuel load requirement.
EXHIBIT 2 GOVERNOR BROWN STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS A GENUINE ISSUE TO BE HEARD In accordance with 10 C.F.R. 5 2.749, Governor Brown hereby specifies those material facts as to which there is genuine issue. This Statement of Material Facts is with particular reference to the NRC Staff summary disposition motion. A similar statement for the PG&E motion is not required and, indeed, cannot be prepared because PG&E has failed to specify the facts it deems to be "material" and not in dispute. See In re Pacif ic Gas and Electric Com an (Stanislaus Nuclear Project), CCH Nuc. Reg. Rept.
1( 30,211 (LBP 1977). In all material respects, however, Governor Brown submits that this Statement would controvert any material facts proposed by PG&E if it had complied with Section 2.749 requirements.
All exhibit references are, unless otherwise indicated, to exhibits attached to Governor Brown's Opposition to the Staff and PG&E summary di'sposition motions.
Emer enc Planning (Joint Intervenor Contentions 4 and 5; Governor Brown Subject 3) 1/
1/ Many of the Staff's statements of "material facts" are not material at all. Thus, many "material facts" merely recite that the Staff has undertaken a review or that PG&E has sub-mitted a document, rather than establishing any fact demon-strating the alleged adequacy of emergency preparedness at Diablo Canyon. E.cr., Staff Emergency Planning Facts 3, 7,
- 20. Similarly, Staff Fact 20, that FEMA will review the State and local plans for full power purposes, is irrelevant to this low power proceeding. The only facts "material" are those which are probatively related to the Subjects and Contentions admitted by the Board.
'F
- 1. The NRC regulations, 10 C.F.R. 5 50.47 and Appendix A to Part 50, must be fully complied with prior to issuance of any operating license for Diablo Canyon. 10 C.F.R. 5 50.47(a); NUREG-0737, pg. 2-11.
- 2. The combined PGGE, S tate and local emergency plans for Diablo Canyon do not comply with the NRC regulatory requirements referenced in paragraph l. SER Supp. 12, pg. III-3, Exhibit 3; Affidavits of Messrs. Kupper, Jorgensen, and Dr. Mitchell, Exhibits 7, 8, and 10; PGGE Response to Governor Brown Interrogatory 1; NRC Response to Governor Brown Interrogatory 1; Letter from Mr. Crane of PGSE to Mr. Miraglia of NRC, Exhibit 4; Letter from Mr. Furbush of PGGE to Dr. Denton of NRC, Exhibit 5; FEMA Memoran-dum, Exhibit 6.
- 3. The def iciencies in the combined PGGE, S tate and local emergency plans include the following:
(a) The local emergency plans of San Luis Obispo County are merely empty statements on paper. These plans have not been implemented. Affidavits of Messrs. Kupper, Jorgensen, Kresja, and Mitchell, Exhibits 7-10.
(b) There has been no adequate training or coordination of County personnel who would be required to implement the County plans. Affidavits of Messrs. Kupper, Jorgensen, Kresja, and Minor, Exhibits 7-9, 15.
(c) Important equipment necessary to effective emer-gency response, including communications equipment and protective clothing, is not available. Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Paulus, Minor, and Dangermond, Exhibits 7, 8, 10, 13-15.
I NI
(d) There have been no full-scale exercises to demon-strate the effectiveness of the County plans. Affidavits of Messrs.
Kupper,, Jorgensen, and Kresja, Exhibits 7-9.
(e) There has been no necessary communication by the County or PGGE with Montana de Oro State Park, located only two miles from Diablo Canyon, regarding coordinated response to a Diablo Canyon emergency. Affidavit of Mr. Dangermond, Exhibit 13.
(f) There has been no systematic public information program designed to educate the public on necessary actions, in-eluding evacuation and/or shelter, in the event of a radiological emergency at Diablo Canyon. Affidavits of Messrs. Kupper, Jorgensen, and Bruno, Exhibits 7, 8 and ll. In light of this record, the adequacy of PGGE's alleged public information program (Staff "material fact" number 13) is clearly in dispute.
(g) The County is not prepared to evacuate residents within the 6-mile low population zone. Affidavit of Dr. Mitchell, Exhibit 10.
(h) Inadequate medical facilities exist to transport and treat persons injured in a radiological emergency at Diablo Canyon. Affidavits of Messrs. Kupper, Jorgensen and Mitchell, Exhibits 7, 8 and 10. Thus, the adequacy of the French Hospital agreement and the San Luis Obispo Ambulance Service agreement, attached as appendices to the PGGE Emergency Plan, are specifically disputed.
(i) The County emergency plans fail to consider the critical complicating factor of an earthquake in conjunction with a radiological emergency at Diablo Canyon. Affidavits of Messrs.
Kupper and Jorgensen, Exhibits 7 and 8. The NRC has clearly indicated that for California power reactors, planning for earth-quakes is an essential element of an adequate emergency response plan. See Exhibit 7; In re Southern California Edison Com an (San Onofre Nuclear Generating Station), Licensing Board Memorandum and Order, dated April 8, 1981. Thus, the plans are deficient in this regard.
(j) The County emergency plan has excluded the City of San Luis Obispo which has jurisdiction separate from that of the County from emergency response planning, which ensures that emergency preparedness for a Diablo Canyon accident will be inadequate. Affidavit of Mr. Bond, Exhibit 12.
- 4. San Luis Obispo County has no schedule for implemention of the existing emergency plans. Affidavits of Messrs. Kupper, Jorgensen and Kresja, Exhibits 1-9. The lack of emergency preparedness at the County level has existed for several years, despite repeated urgings of local officials that necessary steps be taken to create a satisfactory level of emergency preparedness.
Id.
- 5. San Luis Obispo County is merely in the process of preparing a new emergency response plan. However, that plan will not be completed and implemented for many months and is per se inadequate due to the Board of Supervisors'ecent decision to
exclude earthquake contingencies from the plan. Affidavits of Messrs. Kupper and Jorgensen, Exhibits 7 and 8. Thus, the Staff's "material fact" number 9 that the emergency plans will be revised to include earthquake matters is clearly incorrect.
- 6. San Luis Obispo County officials have the lead role in coordinating offsite emergency response. PG&E Plan, pg. 5-7; San Luis Obispo County Emergency Response Plan, pg. 10. County officials, however, have no jurisdiction over the City of San Luis Obispo, which has the most extensive resources, including profes-sional fire-fighting personnel, in the County. Affidavits of Messrs. Bond and Minor, Exhibits 12 and 15. Nithout coordination with the City, County response will be inadequate. Id.
- 7. The PG&E plan relies through a written agreement upon the California Department of Forestry ("CDF") to provide assistance during an inplant'fire or other emergency which cannot be controlled by onsite personnel. PG&E Plan pg. 5-6, pg. 7-32; Affidavit of Mr. Paulus, Exhibit 14. However, the CDF/PG&E agreement was inadequate to provide such assistnace and recently was rescinded because no basis for effective, coordinated response had been established. Affidavit of Mr. Paulus, Exhibit 14.
- 8. Effective emergency response to a Diablo Canyon emergency depends upon coordinated planning and training of response organi-zations. Such planning and training has not occurred for a Diablo Canyon emergency. Affidavit of Mr. Minor, Exhibit 15.
- 9. The PG&E plan relies upon effective coordination with County and local officials for response in an emergency. For
example, the PG&E plan calls for prompt notification of County officials. ~E, PG&E Plan at pg. 4-3. However, County, Park and CDF officials, due to lack of implementation of plans and other deficiencies noted earlier, are not prepared to act efficiently even if PG&E performs as intended. Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Dangermond, Minor and Paulus, Exhibits 7, 8, s
10, 13-15. Thus, since there are no effective interfaces between PG&E and local response entities, .the essential integral emergency response processes, as well as the specific PG&E and local plans, are inadequate.
- 10. Governor Brown submits that statements 8-10, 12-13, 16-17 and 23 of the Staff 's "materi.al; facts," although'ontroverted herein, cannot be considered by the Board because these statements are based solely on hearsay and not on personal knowledge. See Governor Brown Opposition for discussion o f Section 2. 749 requirements. The Staf f clearly is in violation of Section 2.749.
ll. PG&E is required to assess the critical factors that complicate emergency response contemporaneous with the effects of earthquakes. However, PG&E has completed no review of the effects of an earthquake on the PG&E emergency plan. See Letter from Mr. Crane, PG&E, to Mr. Miraglia, NRC, March 13, 1981, Exhibit
- 18. PG&E takes the position that this is not a 5 percent power requirement. Id. Governor Brown disagrees, as the plain meaning of 10 C.F.R. 5 50.47(a) requires this action before ~an operating
2/
license is issued.
- 12. The local emergency plans for Diablo Canyon are not in full force and effect. Affidavits of Messrs. Kupper, Kresja and Jorgensen, Exhibits 7-9.
- 13. FEMA has not made a finding that the present emergency plans at Diablo Canyon adequately protect the health and safety for purposes of low power testing. Attachment 3 to the Staff Motion (on which the Staff relies) states only that the NRC/FEMA Steering Committee did not recommend development of specific low power testing criteria for emergency planning. That says nothing about Diablo Canyon. Moreover, the Steering Committee is but an extraneous entity in the NRC's licensing process, because it is not pait of the line of delegated authority from the Commission or an entity empowered to promulgate regulations or rulings that have the force of law. At best, the Steering Committee has voiced an opinion, indeed an unsupported opinion here. Zn any event, even if the Committee had made such a finding, the data submitted herewith by Governor Brown contest the correctness of. such finding and thus place a material fact in dispute, namely the adequacy of onsite and offsite emergency preparedness. E.cC., Exhibits 7-15.
2/ The Staff has presented as a "material fact" that "Stone and Nebster, a contractor, wiLL issue a report in May of 1981 on the impact of earth-quakes on the emergency plans of the utility and offsite autturities."
The fact that a report "will" be issued, of course, proves nothing about the substance of the report. The Staff's statement is mere hearsay and thus cannot be considered. Further, it is obviously speculative even to mention such a report, since it is the ad~cd oh the report, not the fact of its existence, which has relevance. Until the report is issued and made available to all pres, axl until its substance is Janwn, this Board must disregard campletely this so-called "material fact."
Further, the Staff cites no site-specific analysis, study, or other documentation which provides any factual basis to suggest that. the local plans are adequate for low power testing of Diablo Canyon. The fact is that no site-specific analysis and report was done by the Steering Committee or the Staff, and the Staff has no basis therefore to draw any conclusions. See, ~e.
Affidavit of Mr. Hubbard, Exhibit 16. The Steering Committee's "opinion" is accordingly entitled to no weight. Finally, the alleged FEMA/NRC agreement is also irrelevant, because it was entered into before the effective date of the revised emergency planning regulations.
- 14. An accident at Diablo Canyon during low power testing could have adverse health impacts sufficient to require detailed and effective emergency response planning, both onsite and,off-3/
site. Affidavit of Richard Hubbard, Exhibit 16.
(a) The Staff's probability analysis of the low power test risks (SER Supp. 10, pp. 1-4) is only of general applicability and is based extrapolation of p~H 1400 Diablo-specif ic analyses have not been performed, and the serious shortcomings of WASH-1400 have thus been ignored. Further, the Staff's risk estimates never address the meteorological conditions at Diablo Canyon. Xd.
3/ The Staff "material fact" on page 4 of its Notion ("an accident during low power testing wou'ld release a fraction of the existing fission product inventory ....") is meaning-less, because a "fraction" could be anything less than 100 percent. The Staff's statement, therefore, proves nothing.
At any rate, the Hubbard Affidavit amply demonstrates the need for effective emergency preparedness.
(b) At 5 percent power, signif icant radionuclide inven-tories would be developed. Indeed, at 5 percent power, the short-lived isotopes of iodine and tellurium, the significant contributors to prompt public health consequences, approach 95 percent of their equilibrium condition (5 percent of their full power value) in 8 to 40 days, depending on the radionuclide.
The inventory of radionuclides, while reduced from the full power level, would still pose a substantial prompt health hazard.
Id.
(c) At 5 percent power, Diablo Canyon would be the equivalent of a 54.2 megawatt-electrical or 166.9 megawatt-thermal power reactor. The NRC is requiring detailed offsite emergency planning for small reactors of comparable size, as well as at test reactors. Indeed, for reactors under 250 megawatt-thermal, NRC/FEMA is requiring a plume exposure EPZ of 5 mileS and an ingestion pathway EPZ of about 30 miles. Thus, there is clear NRC precedent for requiring offsite emergency planning measures to mitigate the consequences of potential releases which might occur during the Diablo Canyon low power test program. Id.
(d) PG&E has admitted that a six-mile off-site planning zone for plume exposure and a 10-mile zone for ingestion pathways are appropriate for low power. See Affidavit of William V. Brunot (PGGE). See also Affidavit of Nr. Hubbard, Exhibit 16.
- 15. The 16 Planning Standards in NUREG-0654 are not 4/
satisfied at Diablo Canyon.
(a) Standard A on Assignment of Responsibility provides:
Primary responsibilities for emergency response by the nuclear facility licensee, and by State and local organizations within the Emergency Planning Zones have been assigned, the emergency responsibilities of the various supporting organizations have been specifically established, and each principal response organization has staff to respond and to augment its initial response on a continuous basis.
The County plans have not been implemented, personnel have not been trained, and important equipment is lacking. Accordingly, there is no basis to expect a satisfactory response to the effects of a radiological emergency at Diablo Canyon. E.cc., Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Dangermond, Paulus, Minor and Bond, Exhibits 7, 8, 10, 12-15. The City of San Luis Obispo has not been specifically identified. as a response agency in the County Bnergency Respon-e Plan (County Plan, pp. 14-15), nor have there been official discussions to integrate the City's services with the County'.s services during a nuclear emergency. See Affidavits of Messrs.
Bond and Minor, Exhibits 12 and 15. This violates Evaluation Criteria la, 16, lc, and ld. In addition, the State Park Service does not maintain 24-hour dispatch capability. Affidavit of-4/ The matters discussed in item 15 also demonstrate that Planning Objectives A-P of NUREG-75/ill and the cr'iteria of Regulatory Guide 1.101 have not been met. In the interest of keeping this Statement of Material Facts in Issue as short and concise as possible, 10 C.F.R. 52.749, the Governor does not, in the text, repeat the various NUREG-75/ill and Reg. Guide 1.101 Planning Objectives, but hereby disputes the achievement of each of those Objectives on the basis of the numerous documented emergency planning deficiencies established in this Statement and in the exhibits hereto.
Nr. Dangermond, Exhibit 13. This violates Evaluation Criterion le.
Nor are there written agreements between all response agencies that identify emergency measures and implementation procedures.
This violates Evaluation Criterion 3. Thus, there is no basis for a finding that this Standard is satisfied.
(b) Standard B regarding Onsite Emergency Organiza-tion provides:
On-shift facility licensee responsi-bilities for emergency response are unambiguously defined, adequate staffing to provide initial facility accident response in key functional areas is main-tained at aU. times, timely augmentation of response capabilities is avialable, and the interfaces among various onsite response activities and offsite support and response activities are specified.
This Standard is not, met, as demonstrated by the failure to implement the County plans, inadequate equipment, and the lack of coordination with the City, the Department of Forestry, and Montana de Oro State Park. E.cC., Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Bond, Dangermond, Minor and Paulus, Exhibits 7, 8, 10, 12-15.
(c) Standard C regarding Emergency Response Support and Resources provides:
Arrangements for requesting and effectively using assistance resources have been made, arrangements to accommodate State and local staff at the licensee's near-site Emergency Operations Facility have been made, and other organizations capable of augmenting the planned response have been identified.
As documented in the, attached Exhibits, offsite organizations are not capable of augmenting the planned response. E.cC., Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Paulus, Minor, and Danger-mond, Exhibits 7, 8, 10, 13-15. Further, written agreements for mutual assistance (Evaluation Criterion 4) are lacking.
P (d) Standard D regarding Emergency Classification Systems provides:
A standard emergency classification and action level scheme, the bases of which include facility system and effluent, para-meters, is in use by the nuclear facility licensee, and State and local response plans call for reliance on information provided by facility licensees for determinations of minimum initial offsite response measures.
While a classification system apparently exists, on paper only, the lack of implementation of the local plans ensures that the system is ineffective as to offsite response. ~E. , Affidavits of Messrs. Kupper, Jorgensen, Krejsa, and Mitchell, Exhibits 7-10.
(e) Standard E regarding Notification Methods and Procedures provides:
Procedures have been established for noti-fication, by the licensee of State and local response organizations and for notification of emergency personnel by all response organiza-tions; the content of initial and follow-up messages to response organizations and the public has been established; and means to provide early notification and clear instruction to the populace within the plume exposure path-way Emergency Planning Zone have been established.
The County plans have not been implemented, and evacuation planning even for the LPZ is not adequate.'urther, there are significant communications shortcomings for alerting response personnel and the public, all of which make clear that this Standard is not.
satisfied. Thus, Evaluation Criteria 1, 6, and 7 are clearly not satisfied. ~E. .. Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Bond, Minor, and Dangermond, Exhibits 7-8, 10) 12, 13, 15.
(f) Standard F concerning Emergency Communications provides:
Provisions exist for prompt communications among principal response organizations to emergency personnel and to the public.'uch communications capabilities as called for in the Standard and in the Evaluation Criteria (particularly 1, 2 and 3) do not exist. E.cc., Affidavits of Messrs. Yupper, Jorgensen, Mitchell, Minor and Dangermond, Exhibits 7, 8, 10, 13, 15.
(g) Standard G concerning Public Education and Information provides:
Information is made available to the public on a periodic basis on how they will be notified and what their initial actions should be in an emer-gency (e.g., listening to a local broadcast station and remaining indoors), the principal points of con-tact with the news media for dissemination of informa-tion during an emergency (including the physical location or locations) are established in advance, and procedures for coordinated dissemination of information to the public are established.
The public information program at Diablo Canyon is totally inade-quate. E.g., Affidavits of Messrs. Bruno, Kupper and Jorgensen, Exhibits 7, 8, 11.
(h) Standard H concerning Emergency Facilities and Equipment provides:
Adequate emergency facilities and equipment to support the emergency response are provided and maintained.
Adequate equipment is not available, and certainly that which is available is not checked regularly as required in Criterion 10-E.G., Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Dangermondf Minor, and Paulus, Exhibits 7, 8, 10, 13-15.
(i) Standard I concerning Accident Assessment provides:
Adequate methods,'ystems and equipment for assessing and monitoring actual or potential offsite consequences of a radiological emer-gency condition are in use.
The County is not capable of carrying out effective radiation moni-toring. E.cC., Affidavit of Dr. Mitchell, Exhibit 10.
(j) Standard J concerning Protective Actions provides:
A range of protective actions have been developed for the plume exposure pathway EPZ for emergency workers and the public. Guidelines for the choice of protective actions during an emergency, consis-tent with Federal guidance, are developed and in place, and protective actions for the ingestion exposure pathway EPZ appropriate to the locale have been developed.
Xn view of the lack of implementation of the plans and the associated training, equipment, and coordination deficiencies, a range of protective actions, even if specified on paper, cannot be carried out. E;cC., Affidavits of Messrs. Kupper, Jorgensen, Mitchell,
Krejsa, Bond, Dangermond, Minor, and Paulus, Exhibits 7-10, 12-15.
(k) Standard K concerning Radiological Exposure Control provides:
Means for controlling radiological exposures, in an emergency, are established for emergency workers. The means for controlling radiological exposures shall include exposure guidelines con-sistent with EPA Emergency Worker and Lifesaving Activity Protective Action Guides.
County and Forestry personnel have received no effective training on exposure control, and State Park workers lack protective equip-ment. E.g., Affidavits of Messrs. Kupper, Jorgensen, Dangermond, Minor and Paulus, Exhibits 7, 8, 13-15. Further, there is no evidence that equipment to measure personnel exposure of offsite entities is available.
(1) Standard L concerning Medical and Public Health Support provides:
Arrangements are made for medical service for contaminated injured individuals. (Footnote omitted) .
Medical support training and facilities are not adequate. Affidavits of Messrs. Kupper, Jorgensen and Mitchell, Exhibits 7, 8, 10. "
Further, aside from PG&E's inadequate efforts, other organizations have done nothing under this Standard, in violation of Criteria 1 and 4.
(m) Standard M concerning Recovery and Reentry Plan-ning and Postaccident Operations provides:
General plans for recovery and reentry are developed.
The County had not implemented such plans. Affidavits of Messrs.
Kupper, Jorgensen and Krejsa, Exhibits 7-9.
(n) Standard N concerning Exercises and Drills provides:
Periodic exercises are (will be) conducted to evaluate major portions of emergency response capa-bilities, periodic drills are (will be) conducted to develop and maintain key skills, and deficiencies identified as a result of exercises or drills are (will be) corrected.
Without any ability of the local jurisdictions to implement the current plans, there can be no realistic expectation of adequate drills. E.g., Affidavits of Messrs. Kupper, Jorgensen, Paulus, Minor and Dangermond, Exhibits 7, 8, 13-15.
(o) Standard 0 concerning Radiological Emergency Response Training provides:
k Radiological emergency response training is provided to those who may be called on to assist in an emergency.
No adequate training is provided to County, Park or Forestry per-sonnel. Affidavits of Messrs. Kupper, Jorgensen, Mitchell, Danger-mond, Minor and Paulus, Exhibits 7, 8, 10, 13-15.
(p) Standard P concerning Responsibility for the Planning Effort provides:
Responsibilities for plan development and review and for distribution of emergency plans are established, and planners are properly trained.
The PGGE and local planning effort shows serious lack of coordination and precludes meeting this Standard. AHidavits of Messrs. Bond, Minor, Paulus, and Dangermond, Exhibits 12-15.
Inadequate Core Cooling ( Joint Intervenors 'ontention 13 and Governor Brown Subject 13)
- 1. The TMI-2 operators'nability to detect low vessel water level was exacerbated by .lack of a direct reading water level measurement and thus directly contributed to the accident.
Diablo Canyon presently has no installed instruments to directly measure the water level in the reactor pressure vessel. The lack of direct measurement greatly limits the ability of the operator to unambiguously detect the approach of low water level in the reactor core. Affidavit of Hr. Minor, Exhibit 19.
- 2. The NRC's requirements for correction of the deficiency described in paragraph 1 have been expressed in the Lessons Learned Task Force Report (NUREG-0578), the TMZ Action Plan (NUREG-0660), and also the Requirements for NTOL's (NUREG-0737).
Id.
- 3. PG&E's proposed solution to'he inadequate core cooling
("ICC") problem is to install a Westinghouse system which is still developmental and has. several deficiencies which may prevent it from providing an unambiguous, easy-to-interpret indication of low water level and'ICC. Id.
- 4. The presently installed instruments which Diablo Canyon operators will rely upon for indications of ICC are the same type of instruments relied upon during the TMI-2 accident, but with a wider range of readout; namely: wide range reactor coolant
temperature and core exit thermocouples. The present displays do not provide an indication of vessel water level. Id.
5; The coolant pressure and temperature measurements do not provide an unambiguous and easy-to-interpret indication of ICC. Considerable analysis and judgement would be needed to
'determine if ICC conditions existed based on these two parameters. Id.
- 6. PG&E plans to use the core exit thermocouple readings as an indication that ICC has already occurred, in which case the core may already be uncovered and fuel damage may already be occurring. See Affj.davit of Mr. Muench (PG&E), pg. 2. The thermocauples would then be used as an indication of the success of recovery or mitigat:ion processes. Affidavit of Mr. Minor, Exhibit 19. Accordingly, the existing devices for ICC indication are inadequate to give the operator warning of pending ICC'bat are more of a general indication or after-the-fact ICC indication.
Id-
- 7. PG&E plans to add a Subcooling Margin Meter (SMM) and a Reactor Vessel Level Instrumentation System (RVLIS). The sub-cooling monitor will provide only a gross indication of coolant conditions to warn the operator when there is the possibility of
. boiling and void formation in the primary loop. The meter will not provide a direct indication of the core being uncovered or the fuel being inadequately cooled. Id.
- 8. The RVLIS is the only instrument present at or planned for Diablo Canyon which allegedly provides an unambiguous indi-cation of the approach to uncovering the core. Id.
\
- 9. The Westinghouse RVLIS proposed for Diablo Canyon is still under development. Ongoing, testing is not scheduled to be completed until November, 1981, and reports are to be provided to the NRC by January, 1982. See Letter, Mr. Crane (PG&E) to Mr. Miraglia (NRC) re: additional clarification of PG&E's resolution of NUREG-0737, Item II.F.2, Mar. 19, 1981, page 3.
Despite its untested and unproven status, the RVLIS is planned for installation in Diablo Canyon before fuel load. Affidavit of Mr. Minor, Exhibit 19.
- 10. There has been no finding by the Staff that the RVLIS proposed for Diablo Canyon is an acceptable ICC detection system.
Id.; see NUREG-0675, SER Supplement 14, April, 1981, page 3-70.
- 11. The proposed Diablo Canyon RVLIS does not meet the requirement of being unambiguous and easy to interpret. There are conditions where the system provides an erroneous or un-certain reading of water level. Affidavit of Mr, Muen=h (PGGE),
pp. 4 and 5.
- 12. The Diablo Canyon RVLIS does not =provide +overage for all types of transients or accidents and thus might provide ambiguous or misleading information to the operator. Readings may be misleading under conditions of void redistribution, level swell, coolant pumps being turned on or off, small breaks in the vess- 1 head,'nd severe accidents such as anticipated transients
without scram ("ATWS" ) . Affidavit of Mr. Minor, Exhibit 19.
- 13. During LOCA's of greater than 6-inch break size, the RVL1S and the core exit thermocouples may provide ambiguous indications of ICC. Affidavit of Nr. Muench,(PGRE), pg. 4.
There is no assurance that operators will not be taking manual action during this period. Also, there is no way for the operator to know if he is in a period of ambiguous, erroneous, or reliable indication from his ICC instruments. Affidavit of Mr. Minor, Exhibit 19.
- 14. The RVLIS design may have the same single-failure problem as the subcooling meter which relies on a single data peecessor fed by redundant inputs and feeding to redundant readout devices. Since PGGE has withheld allegedly "proprietary" informa-tion, its description of the RVLIS is. unclear concerning the number of data processors and the algorithm used to create the displays. If there is only one data processor, it is vulnerable to single failure and/or causing erroneous indications on each of the redundant displays. If there are two processors, there is no indication of how the operator is to deal with a discrepancy in the two output displays. This is an ambiguous condition which could easily mislead or confuse the operator. The system has two additional points of potential single-failure at the vessel penetration points used for sensing pressures for the differential pressure instruments. Plugging or blockage of these points could provide an ambiguous and erroneous indication. Id.
- 15. The RVLIS data processor(s) and the displays are not required to be qualified for seismic conditions which the plant may be expected to experience. Thus, there is no assurance that the system will survive a severe earthquake. In the event the data processor fails or one of the redundant displays fails, there is no failure indication or indication as to which of the redundant display devices the operator is to rely upon. The result is an ambiguous and/or misleading indication at a time when the operator may need to rely on the RVLIS. Id.
- 16. A reliable RVLIS is necessarv for safe reactor operation at low power. There is no other instrument. that the operator can rely upon for indicating an approach to ICC. One cannot rule out the possibility of accidents, even at low power, which will require swift and accurate operator responses. Since some safety systems will be disabled for the low power tests and since the plant will be in the shake-down phase, the RVLIS should be available for the operators'se. Further, if the low power test phase is to be used by PGGE as additional training. for its operators, they should have.a reliable and well tested RVLIS available to experience its capabilities and deficiencies before full power oper'ation. Id.
- 17. Vessel water level measurement is one of the best indicators of the approach of ICC conditions and is therefore a necessary addition to Diablo Canyon. However, the proposed
design for the Diablo Canyon RVLIS is still unproven and has serious deficiencies in its design and its ability,to provide unambiguous, easy-to-interpret indications of ICC over the full range of operating and accident conditions. A vessel level device of proven capability should be added to Diablo Canyon before the plant operates. Id.
Relief and Block Valves (Joint Intervenors'ontention 24 and Governor Brown Subject 14) 1/
- 1. All PWRs are equipped with PORVs which are designed to prevent lifting of the code safety valves and to permit the reactor to ride through load rejection transients. The Westing-house design for Diablo Canyon incorporates three PORVs. There are also block valves in series with the PORVs. They are not safety grade and have not been fully tested, although they are a component of the primary pressure boundary. Affidavit of Mr.
Minor, Exhibit 20.
- 2. PORVs and block valves figured prominently in the TMI-2 accident. The stuck-open PORV contributed to the accident by producing a small LOCA, 'and the block valve was relied upon to control the small LOCA as part of the accident mitigation. Id.
- 3. PORVs serve safety-related functions such as relieving pressure during low temperature operation, thus preventing over-pressurization of the reactor vessel. During high temperature As with other Subjects, many of the Staff's "material facts" are not material at all, as they present no probative evidence relating to the safety of the Diablo Canyon valves. In the Governor's Statement, the crucial safety issues are documented.
operation, the PORVs can be used as a means of bleeding the reactor during a "bleed-and-feed" mode of operation. Id. Further, small break LOCA procedures call, for closing the PORV block valves following PORV operation to relieve pressure. Id. Thus, the PORVs serve several safety-related functions and the block valves are called upon to back up or isolate unreliable PORVs. Further, I
there may be long periods of operation where one or more of the block valves may be closed and, thus, be required to open on com-mand in the event of an operational transient or accident. Id.
- 4. PORVs have a tendency to stick open. PORVs have also experienced problems with leakage past the valve, which may mask indications of an actual stuck-open valve (as was the case at TidI-2). Thus, block valves are installed in-board of the PORVs to permit them to be isolated. Id.
- 5. One of the most severe accidents demanding PORV (and block valve) operation is the ATNS accident. In calculating the over-pressure conditions during an AT$US accident, credit is taken for PORV discharge capability. The ATNS environment these valves may experience ranges from operating pressure up to 2849 psi with an upper limit over 3000 psi upon failure of PORVs to open. The flow would likely be two-phase flow with some solid contaminants in a severe ATWS accident. Id.
6'. PG6E has not verified performance by qualification test-ing of the PORVs and block valves for the environmental conditions under which they are assumed to operate, nor provided for ATNS mitigation. Id.
' 7 . Samples of the types of valves used at Diablo Canyon are being tested as part of the EPRI test program in an effort to comply with NUREG-0737 item II.D.l. However, only steam tests have been performed. on the PORV samples and the single block valve sample. Affidavit of Mr. Hock (PG&E), at 2. No mention is made of the test conditions or limits except that the block valve tests are called "preliminary." Affidavit of Mr. Minor, Exhibit 20.
- 8. For the EPRI test results to be of significant value in demonstrating qualification of the Diablo Canyon valves, they must meet several fundamental requirements .
- a. Be conducted on a statistically significant number of samples of each valve type.
- b. Perform a significant number of tests to evaluate degradation or valve life time (in terms of number of operations).
- c. Cover the full range of operating, tran-sient and accident conditions.
- d. Be representative of the Diablo Canyon physical piping and arrangement. Id.
PG&E has not provided data to demonstrate that. the re-quirements described in paragraph 9, above, are met in the EPRI test program. In fact, they clearly are not satisfied in several cases: PG&E is not testing under ATWS conditions; the preliminary block valve test is on a sample of one; and only steam conditions (of unspecified temperature and pressure) have been tested so far.
Id.
PG&E's refusal to qualify the PORVs and block valves to ATWS conditions is contrary to the Staff's position on valve quali-fication for ATWS as stated at page 15-1 of Supplement 13 of the SER:
"Additionally, the functionability of the valves required for long-term cooling following the postulated ATWS event has to be demonstrated."
ll. ISE Bulletin No. 81-02 (Exhibit 21) states that the EPRI tests of block valves were designed to get background data and only covered the conditions set up for steam testing -of the PORVs.
The Bulletin indicates that the PORV test conditions might not be the same as those required for qualification of block valves, but it has not yet been evaluated:
"To date, there has been no similar specific deter-mination by EPRI or the NRC staff as to the rele-vance of the Marshall block valve test conditions to the conditions of any specific PWR plant under which a block valve should be able to close to isolate a stuck-open PORV." Exhibit 21 at pg. 2.
This is significant because several of the block valves sampled by EPRI failed to close when operating under a differential pres-sure of between 750 and'1500 psid. When the full range of pres-sures and steam quality conditions are tested and the plant-specific operating (and accident) requirements are defined for Diablo Canyon, there may be additional problems and failure modes to report. Since three out of seven block valves failed the test at relatively low dP values (compared to the higher pressures expected during operation, transients, and accidents and ATWS conditions), there is a high likelihood that these and other valves may not be able to operate correctly under all expected conditions.
Affidavit of Mr. Minor, Exhibit 20.
32 . PG&E failed to mention the EPRI test failures of the three other block valves when selectively citing the limited re-sults of the preliminary steam tests on the one block valve
similar to those at Diablo Canyon. See Affidavit of Mr. Hock (PG&E) at 2.
- 13. The failures in the EPRI tests cast serious doubt on the validity of allowing plants to start up while testing continues until July 1, 1982. Because there is little assurance that the tests will result in verification of functionability over the full range of operating and accident conditions, successful completion of testing should be a condition of operation for Diablo Canyon. Affidavit of Mr. Minor, Exhibit 20.
- 14. The Staff admits that there are deficiencies in PG&E's compliance with standards for testing of relief valves but expects the EPRI tests to verify the assumed correct operation of the valves. See Affidavit of Mr. Hemminger (NRC) at 3. The Staff will require PG&E to take corrective action if the tests show the valves are not qualified. However, this correction may not occur until the plant has operated for some time. In view of the uncertainty of the EPRI test results, this schedule is neither in the interest, of public health and safety nor consistent with ALARA. Affidavit of Mr. Minor, Exhibit 20.
15 . PG&E suggests that it is not important when a modifica-tion is made, only that the task be completed with as low as rea-sonably achievable exposure starting with whatever plant condition exists at the time the modification is made. Affidavit of Mr. Brown (PG&E) at 1 and 2. However, there is clearly an advantage in doing work on a plant before the plant goes into operation. Work which is deferred once may be deferred again (to a future refueling out-age, for example), at which time the plant exposure levels may be
considerably higher. An even less desirable outcome is that, once deferred, the work may never be completed. Affidavit of Mr. Minor, Exhibit 20.
- 16. There is considerable doubt regarding the qualification status of the Diablo Canyon PORVs and block valves. Recent fail-ures in the EPRI preliminary block valve test program, at much less than worst-case conditions, justify completion of the testing over the full range of transient and accident conditions prior to operation of Diablo Canyon at any power level. Further, there is concern that the classification of the PORVs and block valves should be safety-related. And finally, because of the need for PORVs to function during an ATWS event, there is a need to consider ATWS condi-tions in the testing of PORVs and block valves. Id.
E:(HIBX 3 and the provisions of NUREG-0654 which stipulate that the State and local emergency plans be completed and implemented. Item III.A.2 requires compliance with Appendix E to 10 CFR Part 50.
The applicant's emergency plan has been reviewed by the staff and found accept-.
able. FERA findings on the adequacy of the State and local emergency plans have yet to be made since those plans are not yet completed and implemented. How-ever, the FERA/NRC Steering Committee had previously specifically approved the emergency preparedness at Oiablo Canyon for low power testing on an interim basis. It is the staff's view that the requested relief is warranted and is granted.
If, during low-power operation, an accident were to occur that would release a fraction of the small fission product in~ventor h t would have accumulated during testing, offsite doses would be insignifican and only minimal offsite
., protective actions would be required (See page 3 of Oiablo Canyon Safety .
Evaluation Report, Supplement No. 10 for discussion of risks). The current onsite and offsite plans would suffice for such events, even though they do not fully comply with NUREG-0654, Rev. 1 requirements. The staff technical position thus remains that adequate emergency preparedness is in place for
- fuel load and low-power operation.