ML16341D531
| ML16341D531 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 11/27/1985 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Markey E HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML16341D532 | List: |
| References | |
| NUDOCS 8512110285 | |
| Download: ML16341D531 (22) | |
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CHAIRMAN UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, O. C. 20555 November 27, 1985 The Honorable Edward J.
Markey, Chairman Subcommittee on Energy Conservation and Power Committee on Energy and Commerce United States House of Representatives Washington, D.C.
20515
Dear Mr. Chairman:
This responds to your letter of September 3,
1985 in which you express disappointment at the Commission's view that a further hearing on issues raised in the Diablo Canyon licensing proceeding would be inappropriate.
You also state that the COIImIission's decision in Diablo Canyon on earthquakes and emergency planning is undermined and contradicted by transcripts of closed meetings at which this issue was considered.
(Commissioner Zech did not participate in the decision regarding Diablo Canyon licensing.)
As you are aware, the Commission's decision on this subject was reheard en banc on October 3, 1985 by the U.S. Court of Appeals for the District oF ~Co umbia Circuit.
The Commission's brief stated its position on these issues.
guite obviously, there are strongly held opposing views on the need to consider the complicating effects of earthquakes on emergency planning.
Below I will address, as an individual Commissioner, your suggestion that there is a discrepancy between Commission testimony I presented before your Subcommittee, along with follow-up remarks, and my remarks at certain closed Commission meetings.
For the other points in your letter that are addressed in this letter, the response that follows is that of the Commission majority.
Specifically, you suggest that a discrepancy exists between my remarks at the Subcommittee's July 10, 1985 hearing and my remarks during the Commission's August 3, 1984 closed meeting concerning reliance on "off-the-record information to reach a decision to issue a license to Diablo Canyon."
My remarks at the hearing were as follows:
Mr. Palladino:
" I only knew part of what people told me.
But nevertheless, one can think at one point in a proceeding he has to rely on extra record material in order to be honest and satisfy his conclusions and then after reviewing the situation he can come up and say, hey, there is a case here that can be made and should be made that doesn't rely on that extra record material.
"Now, when I was confronted with that I had to make the decision'hich way I was going to go, and I really reflected quite seriously on this matter.
And the fact I was willing to put into the record when I thought we had to rely on extra record material that we did rely on it I think that displays the honesty with which I was approaching this problem.
8512110285 851127 I
PDR CONNS NRCC CORRESPONDENCE PDR ~~
"But when I found that the case rests on non-extra record material, then I said, well, then, that is an appropriate way to proceed, and on reflection decided that is the way to proceed."
Tr. 44-45 You suggest this testimony before your Subcommittee is contradicted by statements at the Commission's August 3, 1984 closed meeting which you interpret as a suggestion, on my part, "that off-the-record information be included in the Commission's final order."
Rather than focu'sing on an isolated statement in just one meeting, it is important to keep in mind that the August 3, 1984 meeting was part of an ongoing process which included at least three other Commission meetings relevant to.your concerns -- those of July 25, July 30, and August 2, 1984. 'our letter fails to cite any particular portion of the transcript of the August 3, 1984 meeting, but a colloquy with respect to the question of whether to hold a generic rulemaking does appear at page 70 of the transcript of that meeting:
Chairman Palladino:
"...Let me ask you, suppose we followed the--
this approach:
We reaffirm the San Onofre decision on this matter, we say why we think the San Onofre decision was right and do nothing further -- we don't call for -- and we say the Staff has reported that we don't need to do this generically, which we said we were going to consider -- that we'e considered it and now we'e not going to do it generically, and quit?..."'r.
Trubatch:
"Okay, first, will this order, then refer to the-to the off-the-record material or will it ignore it?"
Chairman Palladino:
"Well, we could use off-the-record material."
As should be apparent in this interchange and the ensuing discussion, I
was posing a hypothetical approach to explore the.viability of a particular alternative decision rationale which did not correspond entirely to the rationale of the Commission's ultimate decision.
The discussion which followed this hypothetical approach also includes my suggestion that we "use whatever is on the record to support the rationale that our rules don't require it I consideration of earthquakes in emergency planning]," and an OGC response that the record does include information on the likelihood of earthquakes and the flexibility of emergency response plans.
Tr. 72-73.
Your conclusion that my suggestion of this hypothetical approach conflicts with my testimony, underscores the potential danger of removing remarks in Commission meeting transcripts from the context in which they appear.
It is clear from a reading of the transcript of the July 30, 1984 meeting that the Commission majority had decided, primarily on the basis of low probability, to reaffirm the San Onofre decision that the Commission's regulations do not require consideration of the impacts of earthquakes on emergency planning.
See, for example, Tr. 63-74.
Thus the Commission majority had decided tttat the issue was not material to the licensing of the Diablo Canyon plant.
However, the separate question of whether to hold a generic rulemaking or to provide a special proceeding -- as a matter of discretion rather than legal requi rement--
had not been finally determined.
The Commission's basic decision was announced at the August 2, 1984 meeting at which the Commission voted to grant a full-power license:
Mr. Malsch:
"...My understanding is that the Commission is still considering this matter and is in the process of trying to draft a
- decision, but that at least on )the] root issue, there is [a]
Commission majority in support of the proposition that this case does not warrant any specific pre-licensing consideration of the effects of seismic events on emergency planning.
"But the details of the order are still being worked on and we do not have exact agreement on the text of the order itself."
Chairman Palladino:
"This says that the Commission stands by the San Onofre decision, in this matter."
Tr.
153 The low-probability rationale for the Coranission majority's decision on the "root issue," i.e., that it was unnecessary to conduct a hearing on earthquakes and emergency planning prior to licensing because of the low probability of an earthquake causing or occurring contemporaneously with a radiological emergency, was not in question at the August 3, 1984 meeting.
Next, you allege that the Commission has made two suspect "legal assertions":
(1) that there is a difference between considering information and relying on the same information; and (2) that it is acceptable to consider off-the-record information during the decisionmaking process so long as such information is not relied on in making the final decision.
Your letter requests a legal memorandum in support of the Commission's view.
We will provide such a memorandum in
, the near future when it is completed by the General Counsel and reviewed by the Commission.
You assert that there is an inconsistency between the Commission's finding in CLI-84-12 that the "relevant probabilities" were low and a
July 5, 1985 memorandum to the Commission from William Ji. Dircks, Executive Director for Operations, which states that "further research is needed on four assumptions apparently made by the Commission" in CLI-84-12 and which "appears to indicate that the Commission has not considered or calculated all of the relevant probabilities and that some that were calculated are not low for the purpose of emergency planning."
The "relevant probabilities" in the Diablo Can on decision are:
(1) the low probability that an earthquake up to an inc uding the Safe Shutdown Earthquake (SSE) would result in a radiologic release due to th'e seismic design of the plant; (2) the low probability that an earthquake greater than the SSE would occur; and (3) the very low probability of a contemporaneous occurrence of both a radiologic release from the plant caused by an event other than an earthquake, and an earthquake that would complicate emergency response.
CLI-84-12 at 4-5 (1984).
The July 5, 1985 memorandum which was not before the Commission at the time of its Diablo Can on decision does identify four areas in which further technica ana ysis is needed.
These analyses, together with the other
information available such as public comments, conceivably could prompt the Commission to amend its regulations so as to require some consideration of the earthquake/emergency planning issue.
A chief objective of the generic rulemaking ordered by the Commission at the time of the licensing of Diablo Canyon was to obtain further information from a greater public spectrum on the earthquake/emergency planning issue and its significance to plants throughout the United States.
There is always the possibility that new information will lead to new rules which "conflict" with the old rules.
But surely this fact says nothing about an earlier Commission determination based on information then available.
Finally, you assert that "by stating that some consideration of the earthquake/emergency planning issue is warranted, the NRC Staff has defined the issue as material to licensing and contradicted the technical and legal basis of the Commission's decision not to allow a public hearing."
The July 5, 1985 staff memorandum is a status report on one aspect of the rulemaking proceeding.
Should the Commission decide that information developed in the generic rulemaking indicates that Commission regulations should be amended so as to make additional matters material to licensing, that step will be taken.
Your numbered questions are addressed in the enclosure.
Please note that I am responding in my capacity as an individual Commissioner to your questions 2,
4 and 7 and to a portion of question 3.
Sincerely,
.(. --~-
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I Nunzio J. Palladino
Enclosures:
(juestions and Answers (with requested documents) cc:
Rep.
Carlos t1oorhead
QUESTION 1:
In order to promulgate a final regulation on the complicating effects of earthquakes on emergency planning, the NRC Staff has stated in the July 5, 1985 memorandum that it needs to:
"(1) Assess whether there are sufficient facts to support the staff's belief that the complicating effects of earthquakes on emergency plans are adequately taken into account by the flexibility that exists in all emergency plans; (2) deal with the issue that defects in seismic design and quality assurance in construction can substantially undermine the seismic strength of plant systems and structures; (3) evaluate the limited existing information on the contribution of seismic events to overall core melt risks, recognizing that only a few PRAs assess seismic risks and the treatment entails many uncertainties;
[and] (4) deal with the question why emergency plans should not consider the complicating effects of very severe earthquakes (i.e.,
2 to 4 times the SSE) whose return frequency is 10E(-4) to 10Et-5) while current emergency plans concern themselves with plant accidents whose estimated return frequency are also in this range."
Please address each of these four issues separately and in light of the statement of your technical experts that further analysis is needed on each issue, state the basis for your conclusion as of August 1984 that the earthquake/emergency planning issue was immaterial to the licensing of Diablo Canyon.
Please provide the Subcommittee with all subsequent analyses and memoranda written subsequent to the July 5, 1985 memorandum on this issue.
ANSWER The purpose of the additional analysis being performed by the Staff, described in the quoted material from the staff's July 5, 1985 memorandum, appears to be stated in the preceding sentence in the memorandum:
"Several issues in the public comments (and in particular in comments from the Union of Concerned Scientists) will requi re substantial technical analysis prior to going forward with promulgation of a final regulation."
The additional analysis apparently was necessitated by public comments received in the course of the rulemaking proceeding which again illustrates that the rulemaking is fulfillingits intended purpose.
The basis for the Commission's Diablo Canyon decision is stated in CLI-84-12.
Should new information in the rulemaking call into question CLI-84-12, the Coreission would, of necessity, reexamine whether the Diablo Canyon decision represents sound safety policy.
Analyses and memoranda written subsequent to the July 5, 1985 memorandum are enclosed.
UESTION 2:
During the July 10, 1985 hearing, Chairman Palladino testified that new information was obtained as a result of the Commission's rulemaking proceeding on the earthquake/emergency planning issue.
Specifically what new information was obtained and why was it not available prior to the licensing of Diablo Canyon Unit 1?
ANSWER As the Chairman stated at the hearing, the Commission's rulemaking proceeding elicited approximately 61 different comments.
Information derived from the comments is contained in the Staff's proposed "Final Amendments to 10 C.F.R. Part 50, Appendix E" (SECY-85-283, August 21, 1985) which is enclosed.
UESTION 3:
Chairman Palladino, during the July 10, 1985 hearing you indicated that there was material on the record in the Diablo Canyon proceeding on the issue of whether the emergency plan was sufficiently flexible to cope with an earthquake.
Specifically what material were you referring to?
Were the parties permitted to litigate the Commission's conclusion that the Diablo Canyon emergency plan is sufficiently flexible to cope with the complicating effects of earthquakes on emergency planning?
Additionally, explain why the Commission apparently does not agree with Commissioner Asselstine and the Office of General Counsel that this conclusion is a "factual determination" that should have been subject to litigation.
ANSWER In CLI-84-12, the Commission found that evidence in the record with respect to the effects on emergency planning of other natural phenomena supported an inference of flexibility:
"[Tjhe emergency plans do have considerable flexibility to handle the disruptions caused by various natural phenomena which occur with far greater frequency than do damaging earthquakes, and this implicitly includes some flexibilityto handle disruptions by earthquakes as well."
CLI-84-12 at 6.
The Commission believes that this is a reasonable conclusion based on the information in the record and that this bolsters the Commission decision.
The Commission noted, for example, in response to question 5
of your letter of June 10, 1985, that the record shows the effects nn road capacity of fog and heavy rain.
This is the type of information to which the Chairman referred at the hearing.
The parties had full opportunity to litigate whether alternative evacuation routes had been planned and whether back-up communication and transportation facilities existed.
See LBP-82-70, 16 HRC 756, 773,
- 775, 814-818 (1982).
Whether the emergency plans are sufficiently flexible to cope with the complicating effects of earthquakes was not specifically litigated.
The Commission order referred to the evidence in the record on emergency plan flexibility simply as bolstering its decision which was reached on the ground of the low probability of an earthquake
- causing, or occurring simultaneously with, a release of radiation.
Thus the parties have not been preiudiced by the fact that the specific flexibilityof the emergency plans to cope with earthquakes was not litigated.
UESTION 4'age 3 of the Commission's July 10, 1985 testimony states that the probability of complicating effects from an earthquake within the SSE is low.
However, during a
November 2, 1984 meeting with the NRC's Advisory Committee on Reactor Safeguards (ACRS), Chairman Palladino made the following statement:
"Then there is also the probability that if you have even the SSE or some lesser one, that the equipment may not function as designed.
Now, that one deserves some attention.
I think that could be a
major contributor.
That is one I think you have maybe a better chance of getting a handle on...."
Chairman Palladino, could you please explain this apparent inconsistency in your public remarks.
If you apparently believed that this issue deserved attention on November 2, 1984, why did you vote to exclude the matter from consideration on August 2, 1984 in the Diablo Canyon licensing proceeding?
ANSWER The quoted remarks were made at a meeting with members of the Advisory Committee on Reactor Safeguards, a purpose of which was to discuss a
draft severe accident policy statement.
In the context of discussing where research could be usefully directed to reduce even further the low probability of a severe accident, the Chairman expressed the opinion that it may be more fruitful to study the probabilities of design malfunction in the event of an earthquake within the SSE than to study the probabilities of an earthquake above the SSE.
In the Diablo Canyon
- decision, the Commission found, on the basis of the record, that the probability of a radiologic release due to an earthquake below the SSE was low at Diablo Canyon where the seismic design has been exhaustively investigated.
UESTION 5:
puring the hearing, the Commission testified that the closed meeting transcripts alone did not provide a
complete picture since there were discussions among individual Commissioners.
What discussions took place among individual Commissioners regarding whether a public hearing should be held prior to or subsequent to licensing?
What are the reasons the Commission decided not to provide such a hearing?
ANSWER The Commission's [[letter::05000275/LER-1985-006, :on 850125,both RHR Trains Inoperable.Caused by Closure of Loop 4 RHR Suction Valve MOV-8702 Due to Loss of 4-kV Bus Voltage.Suction Valve Opened & RHR Flow Established within 2 Minutes|February 25, 1985 letter]] to you points out that the transcripts of official Commission meetings do not comprise the entirety of the adjudicatory deliberative process.
The process by which an individual Comnissioner arrives at a decision can include distillation of information derived from many sources including informal discussions with other Commissioners, discussions with his own advisors and with OPE and OGC staff and indeed his own private review and reflection.
The Commission believes that it is not possible, with any accuracy, to reconstruct this process.
The Commission's position is that the reasons why the majority of the Commission decided not to provide a hearing are the reasons given in CLI-84-12.
QUESTION 6:
Precisely when and why did the Commission revise a draft order in such a way that it no longer contained reference to the off-the-record TERA report?
ANSWER The draft orders which the Commission considered at the three closed meetings of July 25, July 30 and August 3, 1985 contained references to the TERA report which had been served on the parties but was outside the evidentiary record.
At the conclusion of the meeting of August 3, 1984, the Chairman asked OGC to prepare a revised order based on comments at the meeting and on additional comments they might obtain from Commission offices.
(TR. at 92).
The final order published on August 10, 1984 (CLI-84-12) does not contain a reference to the TERA report.
OGC deleted the reference to the TERA report based on its sense of the Commission's discussion, and the Commission's intent not to rely on the TERA report in its final order.
QUESTION 7:
ANSWER During the July 10, 1985 hearing, Chairman Palladino testified that he held a meeting on September 9,
1983 with the NRC Staff -- a party to the Diablo Canyon proceeding -- on the issue of possible complicating effects of earthquakes on emergency preparedness.
Please respond to the following:
(a) were other Commissioners present or invited to this meeting; (b) if other Commissioners were not present or invited, then explain why and when the other Commissioners were first advised of what transpired during this meeting; and (c) was the Diablo Canyon case discussed during this meeting?
Additionally, list all persons in attendance at this meeting and provide the Subcommittee with all documents generated for or as a result of the meeting including internal staff memoranda, and any notes or minutes from the meeting.
A briefing regarding seismic events and emergency preparedness took place on September 6,
1983 (apparently the September 9,
1983 date stated in the Chairman's testimony and in Mr. Dircks'anuary 13, 1984 memorandum was an error).
Based on information located in a search in response to your question, it appears that at least the following personnel attended the briefing:
C.W.
Reamer (OCM)
M. Malsch (OGC)
N. Hailer (OCM)
D. Matthews
( IE)
L. Chandler (ELD)
S.
Schwartz
( IE)
R. Jackson (NRR)
R.
DeYoung
( IE)
R. Blond (RES)
S. Trubatch (OGC)
(No longer with NRC)
(No longer with NRC)
(No longer with NRC)
(No longer with NRC)
Neither available records nor participants'ecollections reveal whether representatives of the other Commissioners were invited to this meeting or when other Commissioners first learned about this briefing.
They may have first learned about it from the EDO's memorandum to the Chairman dated January 13, 1984.
- However, as a general matter, it is not uncommon for Commissioners to have individual briefings on issues about which they seek to educate themselves, and this was such a meeting.
- Further, as the Chairman, noted in his testimony of July 10, 1985 before the Subcommittee, the Chairman wanted to get the Staff's view on the need for and extent of consideration of potentially complicating effects of earthquakes on emergency planning.
The content of the meeting was later described in some detail in Mr. Dircks'anuary 13, 1984 memorandum, as noted in the enclosed Rehm Memorandum of October 11, 1985.
Both OGC and ELD began the meeting with comsents on ex ~arte considerations in regard to Diablo Canyon, and the meeting was conducted consistent with this constraint.
(The Chairman's notes from the meeting do indicate that Staff mentioned the Commission's denial in Diablo Canyon of a request for consideration of earthquake effects on emergency planning.)
Attached are the documents concerning the meeting.
As you already have the January 13, 1984 Dircks'emorandum and its attachments (e.g.,
the memorandum of June 22, 1982),
we do not include it now.