ML16341A648
| ML16341A648 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/19/1985 |
| From: | Asselstine J NRC COMMISSION (OCM) |
| To: | Markey E HOUSE OF REP., ENERGY & COMMERCE |
| References | |
| NUDOCS 8506060033 | |
| Download: ML16341A648 (34) | |
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OFFICE OF THE COMMISSIONER UNITEDSTATES NUCLEAR REGULATORY COMMISSION WASHINGTON,O.C. 20555 Pg7 SZ>-W~
tiarch i9, 1985 The Pnnorable Edward Harkey, Chairman Subcommittee on Energy Conservation and Power COIIIIittee nr Fnergy and Commerce United States House of Representatives Washington, D.C.
20510
Dear Hr. Chairman:
Oq February 25, 1985, the Commission responded to your December 17th letter in which you reoue ted de+ailed responses to my criticisms of the Commission's decision not to consider the complicating effects of earthquakes on emergency planning for Diablo Canyon.
As I noted in the Commission's letter, I do not agree with my co".eagues'esponse.
While the Commission's response has a surface plausibility, anyone who is truly conversant with the issues will realize that it is nothing more than sophistry.
Without really addressing my concerns in detail, the Commission attempts to dismiss my concerns bv making.hree general assertions:
- First, the Commission argues that its posit:nn was endorsed by the D.C. Circuit and my concerns are therefore no longer relevant.
- Second, the Commission asserts that my concerns never had any validity because the Commission is always free to ignore the advice and recommendations of its staff and advisors.
Third, the Commission implies that my statement of concerns was merely an attempt to impugn their motives because I was not in the majority on this issue.
I address each of these general assertions below.
I have also explained mv concerns in more detail end replied to the Commission's specific responses in an enclosure to this letter.
"The Commission's conclusion that my concerns are without merit relies primarily on the decision of the D.C. Circuit in Oeukmejian v NRC, Ho.
81-2035 (D.C. Cir. December 31, 1984).
To say that two members of the Circuit Court panel chose no+
+n upset the Diablo Canyon license does not address my concerns.
A Court's review of NRC decisions is limited in many respects.
First, courts typica> ly do not consider matters conta'ined in internal agency deliberations.
Instead, tl ev Focus on the agency's written decision as the explanation of the basis for the agency's action.
In addition, courts rely primarily on the arauments and on the information highlighted for them by the parties.
They do not have the time or the expertise to read and to absorb huge records on subjects as technical and complex as this one.
The Court also did not have the benefit of the transcripts of Commission deliberations, or the advice given by our Office of General Counsel (OGC) and our O~<',ce of'olicv Evaluation (OPE) on the issue contained in those transcripts and 'n memoranda to the Commission.
Further, the decision tha+ the issue was not material to licensing had 850b0b0033 850319 PDR CONNS NRCC CORRESPONDENCE PDR
technical as well as procedural aspects.
The cour.s have been extremely reluctant to upset Corv.'.;~ion judgments about such issues unless the Commission's rationale
<or those
,~udat.erts is totally irrational or impossible to discern.
he courts often accept without a very searching inquiry whatever technical justifications tl e Core. ssion provides for its actions as long as that ustification is explained in reasonable detail.
Thus,. the Commissicr; prnbablv owes its vic+orv in th~ D.C. Circuit more to the nature o+ the issue and to the adroitness o: the CGC lawyers in constructing a plausible defense for the ma,it r~ ty's action, than to any particular merit
- n tt e Cc'nmission's posi~ion.
The Commission also responds generally to my concerns by saying tha.
+he Commission is free to ignore or accep..
.he recottmendations of its advisors and the fact tl;at.,. did so in thi's case shows no wrongdoinq.
The Commission misses the point.
As a practical ma+ter, ir dividual Commissior mrs c.'o rot have ihe time to read every word of an adjudicatory record.
They nus rely to a large extent on Commission sta<< offices such as OGC arrPE to do that.
OGC and OPE often must summarize and collate the <actual information in the record to support part-'cu'ar leaal, policy or technical optirrs
. n.hat the Commission can make its own determination on which opt on to choose based on the availab'ie
-'r~ormatinn.
- Thus, when AGC or OPE tell the Commission that there is no information in the record on a cer ain point or that certain information has nt;t teen made a part of the record. stat OGC statement is fundamentally different from a recommendation by OGC or OPE to choose a particular opt'or.
Jn. the latter
- case, the Ccrrmiss'on is.r ee to ignore OPE and OGC advice.
f!owever, it is much harder to justify ignoring OGC and OPE advice when tha+ advice is merely
- . statement of what factual information is available for consiCeration.
This '.s primarily what I objected to in "he Corno"..ssinn's
'decis~r nmaking process.
The Commission's advisors repeatedly told the Commission that the actual basis for most of the Commiss-or,'s
- ovations, including the one chosen by the Commission, was not ir the Diablo Canyon or the San Orofre records.
The Commission chose to ignore tht se factual statements bv OGC and OPE.
- Further, a conclusion by the General Counsel that, given the circumstances of the case,
.-.. particular issue is material to a licensing decision is, again, in a slightly dif erer+
c~ass than a recommendation to pursue one or another course of art'.on.
OGC's expertise, as lawyers,.'s in making just such determinations
- whe>l er an issue is material to a
licensing decision ar 6 whether information must be the subject of a hearinq.
While the Commission can igno're hat c'di~ic~, the fact that the General Counsel came to a part":cular conclusion is of significar t weiqht.
The Commission also once again has accused r ~ n< impugning their motives berceuse
'. was not on the prevailinq side on this issue.
Hy colleagues have used the same argument in responding tc t.y dissenting views on the Shcrehap.
exemption decision and on the San Onofre
!. restart decision.
After much practice, the Commission seems to hai e tl is "snur or~pc," response to my concerns down pat.
i can nnly say that my corclusion was based upon +heir own statements during the course n
the
I I
I Commission's deliberations nn ibis i'sue.
1 continue to assume that they meant what they said at the time.
I believe that any objective observer of the Commission's deliberations on this issue would come to the same corclusions as I did.
- Further, anyore wl o rares about maintaining
".he integrity of the adjudicatory -process wnuld be,iust as concerned
~s
< about the course taken by the Ccrmiss on.
Tf >I e public is to trust
.he CorI.".ission's process, the Commission must not be perceived as manipulating that process to achieve a
particular erd.
Tl e process must be pe~c~.'vcd as being fair to all parties.
Continued resort by the'ommission to the types of manipulation and procedural sl ortcuts evident in the Diablo Caryon case can only further erode public confidence in the fairness and obiectivity of our reguiatory plocess.
f hope that this in~ormation is helpful to you in understanding the has's or my concerns regarding the Commission's Diablo Canyon decision.
Sincerely, iames K. Asselstine Lnclosure:
As stated cc:
Pep.
Ca~'os Yecrhead
DETAILED DESCRIPTION OF CONCERNS AND SUPPORT.'NG Ill,"~Pt'ATION
-".In reach-;rg its decision in the Diablo Canyon case, the Commission ianored the advice of its ".egal advisors that the question o
'he complicating effects of earthauakes on emergency planning was vent probably a material
- issue, an(! that intervenors were entitled to a
hearing on the issue under section 189a. of the Atomic Frergy Act o 1954."
- he Cevwission's quick response
.o 7his is to say that the Commission is free to ignore the Genera~
Counsel's advice and that the court has agreed with tt e Commission's conclusion on whether the issue was material so that whatever the General Counsel said then is irrelevant now.
I have a'~ eac!y dealt with these two arguments above.
- However, I will point out that the Court's decision was not unanimous.
One member of the D.C.
Circui a'udge
~'aid, agreed with 06C's conc',usior. that the complicating effects of earthquakes was ar. issue material to the lice> sirg c~ Diablo Canyon.
The ~act that she would not have stayed the license pending completion of a hearing on the issue is irre~evant:
the
'.ssue
-.s either material and
- heerir g is required or it is not material and a hearing is not required.
There is no sliding scale of matersality as the Commission's response suggests (i.e.
"no iudge felt that this issue was so material that litigation over the matter had to precede the licensing of Diablo Caryor.."
Emphasis Added.)
I explained in great detail in my separate views on the CorL.'ssinn's
~Di b
C
..i i (CLi-84-12) <<1 di h <<h was material to licensing of Diablo Capycr se I will not do so agai.
here.
i
Su fice it to say that I believe that OGC's advice on this issue was correct.
(2)
"The Commission distingu shed t etween the complicating effects of earthauakes cr. emergency planning and the complicating e."ec":.s -oi other natural phenomena, ever. though the Commission's legal and technical advisors told the Commission that this approach was
~undarnentaIly different from the Commission's approach for considering the comp~icatina effects o
a' other natural phenomena or. emergercy planrirg and there was no factual basis in.he reer rd nf the Oiablo Canyon proceeding for doing so."
(3)
"The Commiss',or.
ccrc luded that the probability of an earthquake which could affect emergency planning is much lower than she probabilities of other natura~
phercmena which are routinely considered by the Commiss~cn even though the Commission's legal and technical advisors told the Commissior
+hat there was no factual basis in the Diel lr Cerynn ircord to support this cor,elusion."
In memorarc'a tn
-'..he Ccrmission and in Commission mee irgs, Pl'-C explained to the Commission that er.. decision they would make to exclude corsideration
- o. earthquakes from emergency planning wou'.d have tr be based on a
determination tha~ eartl quakes are somehow so different fror o.her natural phenomer.'.
the staff does consider in review ng emergency plans that earthauakes need rct Le considered.
(Transcript of Commission meetina of
?/".5/G~ p. 52).
Several Commissioners stated that they '+hought earthquakes were different or other pl errmena because earthquakes occurred less requently than other natural phenome"..e
-rd that the chance of an earthquake occurring at tie same time as or causing an emergency was sn
'.ow tha. it need not be considered.
(See for example, 7/25/84
- p. 11-19; 7/30/84
- p. 31-32, 51).
I'.AC responded by saying that the probabi litv of the simultar eous occurrence of other natura'.
pl ercmer a (such as blizzards and tornados) and ar emergcr.cy is also a very low likelihocd, yet the Commission cc nsiders those phenomena.
(7/25/PA p. 15).
AhC also stressed that there is nothing in the Oiablo Canyon record to suppor+
a
differentiation between earthquakes and other phenomena.
(7/25/84 p, 14, 23, 27).
- Further, OGC pointed out that there is rr',t'~rc in the San Ono+re record
+o support such a differen>>at'nn except the general feelinc or the part of the Commission tha the prot ebilitv of simultaneous occurrerce is too low to be considered.
(7/25/84 p. 46, 51, 59; 7/30/84
- p. 20; 8/3/84
- p. 25-26).
OGC explained tha. the Commission was treating Diablo Canyon differently from all other plants where the effects of site-specific natural phenomena on erne'"gency p>ar ning are considered (7/P5/84 p. 11, 22, 16, 22, 30).
OGC emphasized that by applvirc a prcbabilistic analysis (a
judgment about ihe 'I-:.ke,hood o< the simultaneous occurrence of an emergency and an earthquake>
tn earthquakes at Diablo Canyon, the Commission was treating Diab'.o Caryor uriouely.
OGC noted that this kind of probahilistic analysis has r rt been used,or any other plant for determining whether natural pherrr era urioue to that plant site ought to be considered in emergency planning.
(7/25/84 p. 16).
The Commission's decision clearly ignored a".
o~ th~s advice and in fact contains core'us-:.ons for which OGC and OPE told the Commission there was no record support.
The decision reaffirms the
.'.<"r ('n~fre decision which OGC said was based rerely on a feeling by the Commission that earthquakes are too infrequent to be conside. ~~.
<('LI-84-12, p.
11.
The Commission's order states that prior cases focused on frequently occurring pheromena such as snow, rain and fog, and sio p~y ignores
+he ~act that t:he staff has considered such relativel~ 'n requent occurrences as hurricanes, blizzards and tornados in o.her c~s~s.
<CLl-84-1". p. 51.
OGC and Cf'E told the Commission that the prohahilitv of tie s'r,u'".reous occurrence of these
phenomena and an emergency was not sianificer.".~
d-', ferent from probability of an earthqu~t e and an emergency occurring simultaneously.
(7/25/84 p. 15).
The Commission's order also rested cr the Commission's belief..thai ear.hcuakes rf sufficient size to disrupt emergency response at Diablo Canyon would be so in, requent that specific cor si(!erat'.on is not warranted.
<CLJ-84-12 p. 5).
OGC and APE repeatedly told the Commission that the record did not contair, the basis
<or such a conclusion, (8/3/84 p.
74; 7/25/8~.
p.
14, 17, 19, 28) and that given a chance, the parties to the Diablo Canyon proceeding would likely want to challenge i.his factual detemina+i('r.
(7/30/84 p. 15-18, 60).
In its February 25th response,
- however, the Commission says that its decision was based on irfcrpation in the record.
The Commission says its decision was based on the extensive rev-':ew c+ the seismic design of the p~art and on the Commissior's conclusion that the Diablo Canyon record.
revealed that the area was one o
1nw.o roderei ~ seismicity.
The Commission states thai camp.;> ',son of earthquakes to other natural pheromena is '.>relevant.
As I explained in my separate views to CLI 84-12, the <irst prong of the Commission's decision - extersive review oV the seismic design - is irrelevant for purposes
- o. determirira whether to co> sider earihquakes for purposes of emergency planning.
The Commissior's conclusion ignores one of the fundamental precepts of'mergency planning:
we plan or low probability occurrences because nn matter how safe we try to make nuclear power plants there is.a vY"s a i'ossibility that some event will occur which will require use of one nr more aspects rf emergency planning.
The probability arguments used by the Cerrmission are really arguments that we
do not need
~an emergencv planning, rather than tta+
we need not consider earthquakes in emergency planning.
Unfortutiai.ely, the Commission ignores the fact that safety calculations are subject to some urcerta'nties.
The phii'.csopf i-t'ehind emergency planning is to recognize this uncertain+y arid to provide defense ir. depth ir protecting the public.
- Indeed, the Cormiss or's emergency plannina regulations are founded on the judgment
- .h
- t adequate emergency planning is an essential element in protec~'rg
.he pi.hlic health and safety independent of the Commission's other regu',at'.mrs and safety reviews focusing on the design of the plant itself.
The seccr C prong o~ the Commission's decision is based on a
misperception.
- n basing a decision on a findina that. the D-:ahlo Canyon area is one of lcw tc vvderate seismicity, the Commission misunderstood what the Licensing Board and NRC staf~ exoerts me~r+ h;.hat phrase.
Ninety per cen. o, <<".se'smic activity in the cortinental U.S. occurs in California and 'liestern Nevada.
If the Diablo t'aryrr. area is an area of moderate seismic-tp't rust be in comparison to other areas of California, which have an even higher seismic risk, and not ir rempa! ison to the rest of ihe country.
Tn say that the Diablo Caiiyon area is one of moderate seismicity whe>> compared to a location on the Sar Prdreas fault does not prove tha. earthquakes are not a significant part c= the risk for that site.
1/
In fact a statem~rt h>>
a member of the NRC staff during a discuss'.or.
o.
the San Onofre 1 restart issue indicates that this is exactly wha+
+he phrase means.
(See, Transcript of Commission meeting dated November 21, 1984 "Briefing and Discussion of Issues ir PIerat-'on or San Onoire Ur,'.t ~.," pp.
10-11 and 18-19).
In fact the'SE's and OBE's for plants
',n other parts o+ the country are significantly lower (typically.25g or less and.11-
.12g or less respectively) than those for Diablo Canyon (SSE of.75a ard OBE o+.20g).
Clearlv. bv -rmuiring ~he p'.ant to be designed to withstand ar, earthquake wi+h ground motions almost twice those oi o.her plants the Commission explicitly made the technical judgment that the earthquake risk or the Diablo Canyon area is not comparable to tha..
',n other areas of the countrv and is, in fact, much hipl er.
The Commission cannot have it both ways.
I+
cannot require a very high design basis earthquake for Diablo Canyon and at the same time argue that earthquakes are not relevant to emergency planning because of the low likelihood of the occurrer ce of an earthquake.
The Commission also canrrt argue that how the Commission deals with other natural phenomena is irrelevant.
The Commission has a general emergency planning pract'.ce o
considering the effects of whatever natural phenomena present the greatest risk.or d:sruptina emergencv planning at a
particular site.
If it is not tn be totally arbitrary, the Commission must have and explain a rationale.or dist'rcuishina among various pheromena.
The Commission's ratiora'.e in this case does not do that.
(4)
"The Commission ignored the possibi'.i..; cf tf e siv ultaneous occurrence of an emergency at the plant (e.g.
a fire> which could require emergency response and an unrelated earthquake;o whirl
( ovid affect emergency response features such as communication and emergency response to the site, even though the Commission's lega',
and terf rical advisors told the Commission that this approach was fundamentally different than the Commission approach for considering the complicating effects of all other natural phenomena on emercercy planrirc sr 8 there was no factual basis
'.n the Diablo Canyon record for adopting this different approach for earthquakes."
The Commission decision completely ignore~ the possibility of the occurrence of an emergenri vt the plant and an earthquake which would complicate emergency response.
OGC tnld the Commission that emergency planning is also relevant for respnnses to emergencies which do not result in a radiological release, including emergencies
~ni+iated or complicated by earthquakes be',.ow the SSE.
(7/25/84 p. 12-13, 32-34; 7/30/84 p.
12, 60).
In elaborating on this point, OGC pointed out that whether or not an earthquake resul+s ir the offsite release of radioactivity, an emergency plan must take into account the assurance of continued ccmmun'ication between a plant ard r~fsite emerqency resporse
- agencies, the ability. to obtain damage estimates for the plant and offsite transportation and communicat'on <acilities to provide data
<or decisions in appropriate responses, the availability of backup facilities tr ersure continued functioning o~ an emergency response capability, and the ability to transport necessary personnel to a plant to deal with the emergency.
(Secy 84-70; Secy F,'~-29>; 7/25/84 p.
12, 21; 7/30/84 pp.
11-12, 17, 47-48, 60).
This very reason was the basis for the NRC staff's dec'sion to require applicants
.or California <acilities to consider such earthquakes (smaller than the SSE) in their emergency planning.
(See, Vemoranc'ur. from V.',l'.',am J. D'.rcks, EPO, to Chairman Palladino, "Emergency Planning and Seismic Hazards,"
June 22,
- 1982,
- p. 3-4; HRC staff's "Memorandum R~eerd'.rg Consideration of Effects of Earthquakes on Emergency Planning (CLI-84-4),"
dated
>1ay 3, 1984, Attachoerts).
The Ccmmission's response to this
-.:s tn quote from the D.C. Circuit decision.
Again, merely because a r)ajority of the court chose not to upse+
+he Cormission's decision is not dispos'.t've.
As
? explained in my
separate
- views,
'the Commission's decis-ion does rot explain why ear>>hquakes are so different from other relatlv~'..
'Tn.requent phenomena that they riced never be considered.
- Further, there is no basis in either the Dinah!o Caryon..or the..San Anofre discussier<
>>o suppo> t such a differentiation.
Ilithout such a rationale, the Co@miss'.cn decision is not adequately supported.
(5)
"The Commission rel'.ed cr material not in the record of the Diablo Canyon proceeding to core>rde th<,t
- .he Diablo Canyon emergency plan is sufficiently flexib'Ie to acccov odate the complicating effects oi. earthquakes on emerqency plo'trim dnspi.e repeated warnings that such reliance on extra-record r,a>>erial was inappropriate and legally impermissible."
In its Diablo Ca.. rn decision the Commission concluded:
"klhile no explicit consideration has been qive>>c disruptions caused by earthquakes, tt e emergency plans do have considerable flexibilityto handle the disrupticrs caused by various natural phenomena which occur wi.h fa~
grec,>>er freouency than do damaging eartt ouakes, and this implic~>>~ s includes some flexibilityto hardie disruptions by earthquakes as we'"
~CLJ-84-1P,
- p. 5).
Tbe Ccmn'ssion based its Diablo C~an on decision on this determination even though both OGC and OPE -.old hem repeC'tedly that this was a factua'.
determination untested in ar. ~d;ud',ct-.ory setting and that there was ne was sufficiently flexible to envelope the ef cc." o. <<arthquakes.
In Secy 84-291, OhC told,he C~mmission that the question of whether the emergency plans were flexible erough o cover the effects of earthquakes was not explici
.lsy ccrsidered in the Diablo Canyon record.
(Attachven>>
~, p. 6-7).
OAC said that t't'err was extra-record information
available which OPE harl reviewed and which,would support a preliminary view that current emergercv response plans would assure protection of the public health and safety in the event of an earthouek~
hard a radiological emergency. - (-Secy 84-291..
- p. 9-10).
- However, OAC po'.nted out that the Joint Intervenors disputed the factual accurac~
- o. that information.
( Id at p. 10).
OGC explained that it would be unfair to rely on even publicly available information tn support a deter inaction that operation of the plant is safe when Joiri Intervenors had been precluded from challenging i)et material.
( Id at 10).
OGC and OPF explained at the Commission meetings on this issue thai tf e YPC sta.
had required the licensee to prepare a report considering the effects of earthquakes on emergency planning - the so-called FPA rcport.
PAC and OPE told the Commission that this report was not a part of the Piahlo Canyon record and had not been tested in a hearing.
(7/25/8~
p.
.'7-44; 7/30/84 p. 22-26; 8/3/84 p. 73-7<).
OGC also told the Commissior that the conclusion that
..he delaying effects of fog and other na
.ura't erorena and the delaying effects of earthquakes are similar and that tt'e ev~ergency plans are thus flexible enough to deal with the impact c.
earthquakes is not in either the TFPA study or in the record; ii. is er assur,ption that staff and PGKF. had drawn out of the documentation.
(7/25/84
- p. 22-24, 28, 36; 7/30/84 p. 2~; 8/3I/84 p. 74).
OGC and O~E told tl p Commission that Joint Intervenors disputed that conclusion and had no. beer given an opportunity to challenge it because of the rulings by the Dishpan
('anyon Licensing Board.
.',7/25/04
- p. 24, 36; 8/3/84 p. 73).
Several Commissioners indicated that tf ey were making their determination that cari) quakes need not be considered, at least in part, on
the extra-record material, and the staff assumptior based on that information, wh ch thev thought showed that
.he Oiablo Canyon emergency plan was flexible enough to take earthquakes into accourt.
(7/30/84 pp.
22-26,-65-66, 8/3/84 p. 16; 7/30/84
- p. 43-44 p. 51).
In fact, one Commissioner said:
"I know I'm drawing on irfcruat-'.on.hat may not be in the record.
But.'on'+ wart tn pretend not to have infornation that I do have...."
(7/30/84
- p. 25).
OGC repeatedly told.he Commission that concluding that the plans were flexible enough
+o envelope earthquakes raised factual questions which should be ad,~ud'cated in a hearing and that consideration o: extra-record material to resolve those factual issues was not appropriate.
(7/25/84 pp. 25, 36-38, 55, 57; 7/30/84 pp.
15, 18, 22-25, 40; 8/3r'8r, rr '7, 73).
The Commission
- responds, however, by saying that its re".ance on irArr';t'on such as the TERA report was limited.
The Commission argues that it did not rely on this information to support is ultimate core>nsion.
Further.
the Commission asserts that its conclusion
- ha+ the scooe of the emergency plans
- o deal with a variety of natural pherot.ere which could interfere with their nperation
~im lied a flexibility tn deal with the effects o, earthquakes.
The Commission clearly re'.'.ed cr such extra-record in.ornation in making its determination about whethe:
.o consider the effects of earthquakes on emergency plann',ng.
~t makes no di<~erence whether that reliance was "limited".
Further, to argue that its conclusion was an inference based on record mate;.iaa,
'grores the fact that that is itself a factual deternination which parties sl nu',d have been given an opportunity to challenge at a hearing.
(6)
"[Tlhe Commission's decision was motivated solely by the objective of avoiding delav in issuing a full-power >irensn for the Diablo Canyon plar t.
The Commission refused to recognize the right to a hearing on this issue because such a heariro cou'id delay the issuance of a full-power license for the plant."
~ "
t.7f- "To provide a semblance of public comment ori the issue nf the complicating ef ects of earthquakes on emergency p'.am'nc
. the Count.'ss"',on decided to conduct a generic rulemaking on this issue.
However, it is apparent rom the proposed rule that the Commiss-',or
'.s intent on merely codifyirg its Diablo Canyon decision, and ary oppcr tur ity for public comment on this issue will be meaningless."
The most telling suppor or my statement that the Cnmmission's decision was mot',voted solely by the objective of avoiding delay in issuing a full power license for the Diablo Canyon plant is the fact that there was never any se~ious Commission discussion of the option of holding a hearing on this issue before licensing the plant.
OGC told the Commission tha. the course l.'< least litigative risk, and therefore the legally proper course, was tc prov'.de an opportunity for a hearing before Diablo Can~on was licensed.
(Secy 84-291; Secy 84-70,
- p. 8-9; 7/30/84 p. 62).
Each. time the possibility of a pre-licensing hearing was mentioned, individual Commissioners expressed dismay at the thought of holding up the lir~nse in order to litigate the issue.
(7/25/84
- p. 30-31; 7/30/84
- p. 25; 7/30/84 p.
30}.
tn fact one Commissioner said:
" I do feel that at this 'ate stage requiring delay while we wait for a hearing is not
',r. the best national interest."
OGC told the Commission that there were legal problems with holding a
post-licer serg hearing because of the Court of Appeal's decision in UCS v NRC, 73 F.
2d 1437 (D.C. Circuit 1984) and because a decision tn issue the licer se he& re +he hearing was complete would have to be based on extra-record information.
(7/25/84 p. 45, 54-57; 7/30/84 p. 41, 68; 8/3/84
- p. 24). That extra-record informa
'.'on would have to be used to,iustify not delaying the licensing of Dial.lc Canyon until after the hearing was complete.
Staff-experts on the sub,ject trld the Commission that there was no reason to conduct a generic rulemakirg on this issue.
Staff had concluded that earthquakes were not relevar t for emergency planning for most of the courtry, but that thev ought to be cors'.dered or areas of high seismic risk.
Thus, it was the staf,'s techrical,judgment that the issue was site-specific and only relevant to certa'n si;es.
(11emorandum from William J. Dircks, EDO, to Chairman Palledino, "Emergency Planning and Seismic Hazards",
inure 22, 198K; 7/30/84 p. 27-28; 7/30/84 p. 47-48; 8/3/84 p.
61).
OGC told the Commission that ro one had come up with a conv.'ncing rationale
=or contradicting the staff's cor.c'usion that for certain sites earthquakes ought
.o be cons'.dered.
(7/30/84 p. ?9, 47; 8/3/84 p. 68-69).
OGC pointed ou+
hat the Commissior would 1'ave to explain clearly why it believes that there lea'.~.~~ is a gereric issue, wher. the tIPC's own technical staff finds that earthquakes are a problem for erergency planning in California but not or the rest of the country.
(7/30/84
- p. 20, 47-48).
That rationale certainly was not present in th San Onofre decision or in the Diablo Caryon record.
(7/25/84 p. 58; 8/3/84 p. 25).
There was not an articulated technical or factual hasis for generically con>iud-;ng that earthquakes reed never be considered for emergency planning at any plant.
(8/3/8~ p. 68).
The Commission's San Onofre decision and the Cowmission's desire to affirm that decision seemed to be based only on
-i.ee~'rr on the part of the Corx:-'ss ion that the probability of an earthquake occurring was
I so low that thev need rot be considered.
(7/25/84
- p. 46, 51, 59; 7/3p/84
- p. 20).
The Commission's decision to conduct a gene"ic rulemaking was made hy default.
The-Commissirr, refused to consider seriously a pre-licensing
- hearing, and a post-licensing hearing appea ed to have
+oo manv obvious legal problems.
Tf e +ransc!ipts show that the decisio~! to conduct a
generic ruliemakirg was made on the basis oi an iin ui'ti<<e feeling on the part of some Commissioners about the probability of eartI!quakes, and was made in spite of the advice and opinions of t/pC
+a+f. NC and OPE that a
generic rulemakirc'as ro necessary and that there was not a factual basis for exc',uding completely consideration o< <<.;rtt ouakes.
OGC told the Commission that it could ro. <ust do nothing and ignore the issue.
(8/3/84, p 25).
They also told the Commission tha. mere'i reaffirming the facual finding in the San Onofre decision that earthquakes need never be considered would not work because thc~c vv s nnthinq in +he San One+re record to support the findinq, and because the Diablo Canyon Licensing Board decision had read
.he Sar Or ofre decision too broadly (7/25/84 p.
58-59; 8/3/84 p. 25-26).
The Commission chas~ tc conduct a generic rulemaking because w'.~h e rulemakinq it could appear to address the issue, it could remove the issue from consideration in tft P'ah'o Canyon case and at the same time avoid providing an opportuni.y o!
a hearing which might delay issuance o~ the license.
The Commission says thai had it believed that publ.ic hea>>h
~rd safety reauirect:r<.t.:on it would have ordered a hearing rctwithstanding possible delay.
That is not the issue.
The issue is whethe.
+ht effects of earthru~>rs cn emergency planning are materiali to licensing nf Diablo
Canyon. If they hre, a party is entitled to a hearing.
The Commission's deliberations show a Commission trying anything tn avoid findina the issue material so that it ceu>d avoid granting a hearing which might delay the operation cf-the plant.
The Commission settled or.
a rereric rulemaking ~or lack o~ any better way of accomplishing this goal.
0
~ I ir