ML16341B705
| ML16341B705 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/20/1981 |
| From: | Bradley Jones, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-644, ISSUANCES-OL, NUDOCS 8107220129 | |
| Download: ML16341B705 (24) | |
Text
In the Hatter of UNITED STATES OF AHERICA NUCLEAR REGULATORY COHHISSION BEFORE THE COtlHISSION PACIFIC GAS AND ELECTRIC COHPANY
)
(Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos 50-323 O.L.
NRC STAFF
RESPONSE
TO JOINT INTERVENORS
~l PETITION FOR REVIEW OF ALAB-644 William J.
Olmstead Assistant Chief Hearing Counsel July 2O, 1981 Bradley W. Jones,.
Counsel for NRC Staff sg 7 5
8i07220i29 8i0720 I
PDR ADOCK 05000275 0
/
5 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos.
50-275 O.L.
50-323 O.L.
NRC STAFF
RESPONSE
TO JOINT INTERVENORS PETITION FOR REVIEW OF ALAB-644 BACKGROUND On September 29, 1979, the Atomic Safety and Licensing Board (Licensing Board) in the above proceeding issued a Partial Initial Decision.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) LBP-79-26, 10 NRC 453 (September 27, 1979).
Subsequent to that decision the Atomic Safety and Licensing Appeal Board (Appeal Board) issued ALAS-598, ll NRC 876 (1980), granting Joint Intervenors motion to reopen the record on the seismic portion of the Licensing Board's Partial Initial Decision.
Hearings were conducted and evidence was taken by the Appeal Board from October 20-25, 1980.
Following those hearings the Appeal Board issued a lengthy opinion as ALAB-644 which approved the seismic design of Diablo Canyon.
On July 6, 1981, the Joint Intervenors filed a Petition for Review of ALAB-644 with the Commission/
Ql The Staff objects to Joint Intervenors exceeding the page limitation of 10 C.F.R. 5 2.786 in their Petition for Review.
In view of the unequivocal language in 5 2.786(b)(2), the Staff believes it is inappropriate to file such a document prior to the granting of any motion to exceed the page limitations.
l
INTRODUCTION Joint Intervenor's Petition for Review was filed under 10 C.F.R. 5 2.786.
That provision governs the review by the Commission of decisions and actions of an Atomic Safety and Licensing Appeal Board.
That section indicates that the Commission will grant a petition for review only where an important question of fact, law, or policy is raised.
The burden of showing that there should be Commission review is on the party seeking review, a showing that has not been met by Joint Intervenors.
10 C.F.R. 5 2.786(b)(4) notes several instances in which the Commission will not exercise its discretion to review.
With respect to questions of fact, subsection 4(ii) states that:
(ii) A petition for review of matters of fact will not be granted unless it app:-.mrs that the Atomic Safety and Licensing Appeal Board has resolved the factual issue necessary for decision in a clearl erroneous manner contrar to the resolution of that same issue b
the Atomic Safet and Licensin Board.
emphasis added The Commission has stated its policy that "[ajs a general matter, this Commission does not sit to review factual determinations made by its subordinate panels...it is simply not practical for us to do so in most cases."
Public Service Com an of New Ham shire (Seabrook Station,, Units 1 and 2) CLI-76-17, 4 NRC 451, 467 (1977).
With respect to questions of law and policy, subsection 4(i) states that:
(i )
A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an
<<h 1 ~iaaf 1
ff environment, the public health and safety,...or otherwise raises important questions of public policy.
(emphasis added).
It is important under the Commission's regulations, therefore, to determine which issues raised by Joint Intervenors are factual issues and which are issues of law or policy.
H
DISCUSSION A.
Choice of Free Field Res onse S ectrum Joint Intervenors attack the Appeal Board's choice of free field response spectrum for the maximum vibratory acceleration likely to occur at Diablo Canyon, based principally on their dissatisfaction with the Appeal Board's acceptance of effective acceleration and magnitude saturation as discount factors in the seismic analysis.
Joint Intervenors'hallenge to these discount factors focuses on the questions of the existence and accuracy of the factors.
Joint Intervenors Petition for Review at 8-11.
As discussed in more detail in the "Staff Response to Governor Brown's Petition to Review" filed on July 16, 1981, the existence or non-existence of the effective acceleration and magnitude saturation concepts was thoroughly reviewed by the Appeal Board. +
After considering extensive evidence the Appeal Board, as had the Licensing Board, resolved the issue in favor of the Staff's position.
Joint Intervenors do, however, raise one point which needs to be specifically addressed.
Joint Intervenors claim the analysis for the "Newmark Spectrum" is'or a 6.5 M
earthquake rather than a 7.5 M
earthquake and should there-fore be rejected%
The "Newmark Spectrum" was for a 7.5 M
ALAB-644 at 67. This does not mean the results of the Newmark Spectrum may not be similar to those for a 6.5 M
The whole point of the magnitude saturation concept is that the peak ground motion for earthquakes
+2 HRC Staff Response to Governor Brown's Petition to Review ALAB-644, pp. 4-6, 8-11.
Q3 Although Joint Intervenors indicate that the Imperial Valley earthquake of 1979 was of a 6.5 Ms magnitude, testimony at the hearing before the Appeal Board was that the earthquake was of a 6.9 M
magnitude.
Prepared testimony of Robert
- Rothman, p.
5.
of high magnitude reach a point at which the peak values are essentially consistent.
ALAB-644 at 42. Thus, accepting the factual decision on magnitude saturation reached by the Appeal Board, it is very possible the "Newmark Spectrum" might be the same or very similar for a 6.5 N
and a 7.5 H
earth-s s
quake.
There is nothing in the points raised by Joint Intervenors to indicate that the acceptance of magnitude saturation was a clearly erroneous conclusion by the Appeal Board and the Licensing Board.+
The Joint Intervenors have not met their burden to show that the Appeal Board acted in a clearly erroneous manner in accepting the "Hewmark spectrum".
In addition, both the Licensing Board and the Appeal Board agreed on the resolution of these issues.
As such, the requirements of 10 C.F.R. 5 2.786(b)(4)(ii) are not met and the "Hewmark spectrum" issue is not appropriate for Commission review.
B.
The Tau Effect As with the issues of magnitude saturation and effective accelera-tion, the question of the Tau Effect, as raised by Joint Intervenors, is a factual issue.
Joint Intervenors simply argue that the Board did not accept the testimony of the correct witnesses.
Joint Intervenor's Petition for Review, at ll.
The Tau Effect, which takes into account certain properties of large rigid structures as they are affected by earthquakes, was thoroughly discussed by the Licensing Board and the Q4 Joint Intervenors reference the Bonds Corner record of the Imperial Valley earthquake, but testimony at the reopened proceeding was that the high readings at the Bonds Corner Site may have been the result of an anomalous site condition.
Prepared testimony of Robert
- Rothman,
- p. 6.
Thus, the record cited by the Joint Intervenors may not have representative value.
The Appeal Board also addressed the anomaly of the Bonds Corner record.
ALAB-644, pp. 93-94.
Appeal Board.
Each of the specific challenges to the concept were discussed by the Appeal Board and rejected.
ALAB-644 at 114-146.
The Licensing Board similarly discussed and acc'epted the Tau Effect as applied to the Diablo Canyon seismic analysis.
Thus, both the Appeal Board and the Licensing Board have agreed on this factual issue.
While Joint Intervenors allege that this was not a conservative method of
- analysis, both the Licensing Board and the Appeal Board noted that there were two methods presented for considering the Tau Effect, and the most conservative parts of each Tau calculation were used for the seismic analysis.
Partial Initial Decision 10 NRC at 495; ALAB-644 at 139-140.
In any event, an examination of the Appeal Board's opinion and Joint Intervenors'etition for review does not reveal that the issue of the existence of the Tau Effect was decided in a clearly erroneous manner.
This is the first requirement under 10 C.F.R. 5 2.786(b)(4)(ii) for a factual issue to be appropriate for Commission review.
As we have already noted, that provision of the regulations also requires that the Licensing Board and the Appeal Board arrive at different results on the factual issue in order for Commission review to be appropriate.
The issue raised by Joint Intervenors fails to meet either of the rule's requirements for Commission review of a factual issue, and their petition for review on this issue should be denied.
C.
The, Dam in Effect Joint Intervenors claim that the Appeal Board improperly used a
7X damping effect instead of the 5X damping effect they advocate.
The Joint Intervenors imply that the normal practice is to apply a
4-5% damping effect.
In addition, they claim that the Appeal Board illegally shifts the burden of proof and violates regulatory principles.
-6<<
Joint Intervenor Petition for Review at 12.
This is a curious argument
- since, as the Appeal Board was careful to point out, Regulatory Guide 1.61 specifically states that a 75 damping factor should be appropriate for seismic analysis.
The 5'A damping factor advocated by Joint Intervenors was implicitly rejected as a requirement when Regulatory Guide 1.61 was modified in October of 1973.
Joint Intervenors cite no legal requirement establishing a 5$ damping effect.
Thus, this is a
factual question of whether the damping effect used in the Diablo Canyon seismic analysis should be 5X or 7X.
The Appeal Board, after considering the evidence presented at the hearing, determined to accept the recommendation of Regulatory Guide 1.61 that 7% was an appropriately conservative value for the damping factor.
The Joint Intervenors have not presented evidence showing that both the Appeal Board and the Licensing Board resolved this factual issue in a clearly erroneous manner.
The provisions of 10 C.F.R. 5 2.786(b)(4)(ii), are, therefore, not met and this issue is not appropriate for Commission review.
D.
The OBE Value Joint Intervenors argue that the Board is legally required to accept only an OBE value which is at least one half of the SSE for Diablo Canyon.
Joint Intervenors Petition for Review at 13.
As noted by the Appeal Board, OBEs less than one half the SSE have been accepted in approving the seismic design of other nuclear plants. +
10 C.F.R. Part 100, App.
A 511, paragraph 3 specifically provides that an applicant may provide information showing particular geological or seismological conditions indicate some of the Appendix A criteria need not be met.
+5 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Facility, Units 1 and 2) ALAB-644, 13 NRC (1981), Slip op. at 171.
The Applicant has, therefore, done nothing more than the regulations allow. Thus, no important legal issue remains which satisfies 10 C.F.R. 5 2.786(b)(4)(i)'s guidance for Commission review.
Joint Intervenors also raise the question of whether the probability analysis accepted by the Appeal Board justifies allowing an OBE of 0.2 g.
This is a factual question which, after considering the evidence presented at the hearings, the Appeal Board resolved in agreement with the Licensing Board.
The repeating by Joint Intervenors of evidence, which both the Licensing Board and Appeal Board rejected, does not amount to a showing that the Appeal Board acted in a clearly erroneous
- manner, as required for Commission review of a factual issue under 10 C.F.R. 5 2.786(b)(4)(ii).
In addition, that section provides that the Commission will not review factual issues
- where, as in this case, both the Appeal Board and Licensing Board have agreed on the resolution of the issues.
Since there is no important legal question which remains to be resolved, and no factual question appropriate for review, the Commission should reject the Joint Intervenors request for Commission review of this issue.
E.
Reo enin the Record Joint Intervenors request the Commission to review the Appeal Board's denial of their motion to reopen the record to hear testimony on USGS report 81-365.
The standards for reopening a closed record are that I
there must be si nificant new information which would lead to a different result if it had orginally been considered.
Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2) CLI-81-5, 13 NRC (April 1, 1981) Slip opinion at pp. 2-3.
The Appeal Board ruled correctly that this standard had not been met by the USGS report.
The report did not cover new information, but was simply a
reanalysis of old information or information which predated the close of the record on the seismic issue.
ALAB-644, at 176-177.
In addition, the Appeal Board specifically noted that they had carefully reviewed the USGS report and that it would not change the result that they reached.
ALAB-644 at 178.
Thus, it is evident that the standards for reopening were not met by the USGS report and the Commission should not disturb the Appeal Board's ruling on that issue.
CONCLUSION As demonstrated
- above, the issues of the correctness of the "Hewmark Spectrum" and the use of the Tau Effect are purely factual issues on which the Joint Intervenors have not met their burden under 10 C.F.R. 5 2.786(b)(4)(ii) to show the Appeal Board acted in a clearly erroneous manner.
The issues of the proper damping effect value and the proper OBE value present mixed questions of law and fact.
As demonstrated
- above, they do not present important legal questions appropriate for Commission review and the factual portions of those issues do not meet the regulatory provision for Commission review.
Finally, the Appeal Board correctly resolved the purely legal question of not, again, reopening the record.
The Staff therefore, urges the Commission to reject the Joint Intervenor's Petition for Review in its entirety.
Respectfully submitted, William J.
Ol tead Assistant Chief Hearing Counsel Bradley M. Jo es Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of July, 1981.
'tl
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos. 50-275 O.L.
50<<323 O.L.
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF
RESPONSE
TO JOINT INTERVENORS PETITION FOR REVIEW OF ALAB-644 in the above-captioned proceeding have been served on the following by deposit in. the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of July, 1981.
%r. Samuel J. Chilk Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Leonard Bickwit, Esq.
General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Richard S. Salzman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Br. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Mr. Thomas S. Moore, Member Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Administrative Judge John F. Wolf Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Mr. Glenn 0. Bright Atomic Safety and Licensing Board U.S. Nuclea~ Regulatory Commission Washington, D.C.
20555 P
- Dr. Jerry Kline Atomic Safety and Licensing Board U. S. Nuclear Requlatory Commission Washington, D. C.
20555 Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, Cal iforni a 93401
Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company P.O.
Box 7442 San Francisco, CA 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc..
4623 More Mesa Drive Santa, Barbara, Californi a 93105 Mrs. Raye Fleming 1920 Mattie Road Shall Beach, California 93449 Richard E. Blankenburg, Co-publisher Wayne A. Soroyan, News Reporter South County Publishing Company P. 0.
Box 460 Arroyo Grande, California 93420
- Ms. Majorie Nordlinger Office of General Counsel~-
0.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gordon Silver 1760 Alisal Street San Luis Obispo, California 93401 John R. Phillips, Esq.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Marion P. Johnston, Esq.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Arthur C. Gehr, Esq.
Snell
& Wilmer 3100 Valley Center Phoenix, Arizona 85073 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Harry M. Willis Seymour
& Willis 601 California St., Suite 2100 San Francisco, California 94108 Janice E. Kerr, Esq.
Lawrence l}. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas
& Electric Company 77 Beale Street San Francisco, California 94106 Bruce Norton, Esq.
3216 North 3rd Street Suitw 202 Phoenix, Arizona 85102 David S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W.
Washington, D.C.
20006 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K
San Jose, California 95125 Mr. John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0.
Box 112 San Luis Obispo, California 93406 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105 Mr. Herbert H. Brown Hill, Christopher
& Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814
, iver 3
+Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mark Gottlieb California Energy Commission MS-18 llllHowe Avenue Sacramento, California 95825 William J.
Ol stead Assistant Chief Hearing Counsel