ML16341D533
| ML16341D533 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/03/1985 |
| From: | Markey E HOUSE OF REP., ENERGY & COMMERCE |
| To: | Palladino N NRC COMMISSION (OCM) |
| Shared Package | |
| ML16341D532 | List: |
| References | |
| CLI-84-4, TAC-49424, NUDOCS 8512110293 | |
| Download: ML16341D533 (24) | |
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5 ChAIAMAV U.S. HOUSE OF REP RES ENTATIVES SIJ8COMMITTEE ON ENERGY CONSERVATION AND POWER OF THE COMMITTEE ON ENERGY AND COMMERCE WASHINGTON. DC 20515 September 3,
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The Honorable Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555
Dear Mr. Chairman:
I have reviewed the Commission's August 12, 1985 responses to the Subcommittee's requests that you report to the Subcommittee on the appropriateness or inappropriateness of holding a public hearing on issues raised by the Diablo Canyon licensing process<
- and, on the Commission's response to a July 9, 1985 memorandum by the Subcommittee Staff.
I found both letters very disappointing.
The Commission's letter responding to ~y request that it consider the appropriateness or inappropriateness of an additional hearing on issues which have been raised with regard to Diablo Canyon merely states that the Commission continues to believe its decision was proper.
Although this letter does not contain any detailed substantiation of this assertion, the Commission cites two procedural "reasons" for not revisiting the issues raised.
The first alleged obstacle can be effortlessly removed by the Commission itself and the second lacks legal merit.
The Commission's letter responding to the Subcommittee Staff's memorandum weaves a tangled web of revisionist regulatory history and gggg hag rationalizations.
The Commission states that the memorandum "...does not appear to comprehend that the reasons for the Commission's Diablo Canyon decision are the reasons presented in CLI-84-12...."
There is no problem with the Subcommittee Staff's comprehension.
However, there remains a very serious problem with the credibility of the Commission's stated rationale for its decision.
In this most unusual case<
the Congress and the public have had access to verbatim transcripts of the Commission's closed deliberations and other agency documents which seriously undermine and contradict the Commission's written decision.
No amount of rewriting history can erase what took place during these deliberations.
The Commission's comment regarding seismicity and seismic risk is a distinction without a difference in the context of this overarching discussion.
The Commission cannot hide behind semantic arguments.
8512110293 851127 PDR COt'INS NRCC CORRESPONDENCE PDR
The Honorable Nunzio J. Palladino September 3.
1985 Page 2
- Zndeed, the Subcommittee's July 10, 1985 hearing on the Diablo Canyon licensing process raised more questions which cry out for answers.
Despite the insistence of the Commission-majority that it abided fully with the strictures of the federally mandated licensing process<
the Commission's testimony was unconvincing and marked by inconsistencies.
Two key inconsistencies in testimony require prompt clarification.
First, there appears to be a serious discrepancy between your remarks about relying on off-the-record information to reach a
decision to issue a license to Diablo Canyon.
Chairman Palladino, you repeatedly stated at the Subcommittee hearing that your final decision did not rely on off-the-record information.
- However, you admit that earlier in the evolution of your thinking about this case you were willing to acknowledge your reliance on off-the-record information because at that time you believed it necessary to maintain your honesty and satisfy your conclusion that the earthquake/emergency planning issue was not material to licensing.
You specifically stated that you suggested using off-the-record information in the final order at a point in time before you developed the view that such material was in the record.
You testified that you changed your mind about acknowledging off-the-record information only after you learned that your position -- not to hold a public hearing -- could be justified on the basis of "non-extra record material."
While your statements appear to show that you did indeed rely on off-the-record information in initially reaching a conclusion that a public hearing should not be held, an additional question is raised by your repeated statements under oath that your decision did not rely on off-the-record information.
The question is when did you develop the opinion that your position could be supported by on-the-record information?
A review of the Commission's closed meetings transcripts shows that you suggested that off-the-record information be incl'uded in the Commission's final order as late as August 3<
1984.
Significantly, however, you made this suggestion yg4gX you had already voted to license the plant on August 2, 1984.
The Commission's August 10<
1984 final order is merely a written confirmation of the vote taken on August 2, 1984.
Hence, it appears that your statement that you did not rely on off-the-record information to decide this case is inconsistent with the factual record.
Your testimony as well as the Commission's final order would appear to be a PC%i l)QQ rationalization.
Additionally the Commission majority must explain how it reached a decision to license the plant on August 2<
1984 when the transcript'rom the August 3, 1984 closed
'l~
The Honorable Nunzio J. Palladino September 3,
1985 Page 3
Commission meeting reveals that it had yet to decide on a
rationale for that decision.
The Subcommittee should similarly be informed whether it is common practice to hold closed and substantive meetings on how to decide issues subsequent to voting to issue the license and in what manner this process is authorized.
Your clarification of these issues will help the Subcommittee further evaluate this important matter.
In this context, I challenge two of the Commission's legal assertions made in response to Commissioner Asselstine's charge that you relied on off-the-record information.
The Commission has asserted that there is a significant difference between considering off-the-record information and relying on it publicly to justify its decision,
- and, the Commission has asserted that it is acceptable to have relied on off-the-record information during the decision-making process as long as it did not rely on it in making the final decision.
Both propositions are highly suspect.
If you still adhere to these views, please provide the Subcommittee with a legal memorandum supporting these two arguments, making sure to distinguish explicitly those cases which are contrary to your position.
A -econd major area of inconsistency goes t'o the heart of the Commission's stated reason for its decision.
The Commission testified before the Subcommittee and has told the public that its dec.sion not to allow a public hearing under Section 189 of the At".mic Energy Act was based on its consideration of the relevant probabilities, which were characterized as low. Yet, a July 5<
985 memorandum from William J. Dircks, Executive Director for Operations, to the Commission, states that further research is needed on four assumptions apparently made by the Commission in its Diablo Canyon decision (CLI-84-12).
The July 5, 1985 memorandum 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 purposes of emergency planning.
Furthermore, as noted by the Commission's own Advisory Committee on Reactor Safeguards, it is apparent that the Commission's excessive reliance on probabilities is unfounded given the high degree of uncertainty involved in such estimates.
The July 5, 1985 memorandum is also significant because the Commission's original proposal to exclude generically the issue from consideration is not one of the three rulemaking options offered to the Commission by the NRC Staff.
In short, 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.
I
The Honorable Nunzio J, Palladino September 3>
1985 Page 4
In addition to addressing the two issues discussed
- above, please respond to the following questions:
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 flexibilitythat 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 10E(-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.
2.
3.
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.
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
e
The Honorable Nunzio J. Palladino September 3,
1985 Page 5
4 ~
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.
Page 3 of the Commission '
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 Safegards (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 2r
- 1984, why did you vote to exclude the matter from consideration on August 2, 1984 in the Diablo Canyon licensing proceeding?
5.
6 ~
7 ~
During 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 Commissioners decided not to provide such a hearing?
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?
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
The Honorable Nunzio J. Palladino September 3,
1985 Page 6
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.
In advance<
thank you for your prompt attention to these matters.
I request your response by September 20, 1985.
Sincerely, Edward J.
Markey Chairman
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UNITED STATES OF AHERICA NUCLEAR REGULATORY COHHISS ION ATOHIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Elizabeth S. Bowers, Chairman Glenn O. Bright Dr. Jerry O. Kline p,~mtf~
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JAM 22)95 i Office qf the S~
jp Occketini; a Service In the Hatter of PACIFIC GAS AND ELECTRIC COHPANY (Diablo Canyon Nuclear Power
- Plant, Units 1 and 2)
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January 21, 1981 Docket Nos. 50-5 OL 0-32 OL (Low Power Test Proceeding)
ORDER (Schedulin a Conference of Counsel)
In a conference call on January 21,
- 1981, (which was finally convened after extended difficulty) it was agreed that there vould be a conference with the Board and counsel for"the Parties in the 5th floor hearing room at East-West
- Towers, 4350 East Fest Highway, Bethesda, Haryland.
The conference will begin at 9:00 a.m. (local time) on January 28, 1981 and will continue the folloviqg,dp7,.if necessary.
Hatters to be~c vere discussed Oq in the conference cal
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UNITED STATES OP ~KICA.
- NUCLEAR REGULATORY COMCSSION In the Pwtter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon, Units 1 and 2)
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Docket No.(s) 50-275OL 50-3230L CERTWICATE 'OP SERVICE I hereby'erti y that I have this day served the foregoing document(s) upon
- =--
each person designated on the official service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance
~Cth the requirements of Section 2.712 of 10 ~ Part 2 - Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
Dated at Washington, D.C.
day of 198 l Offic f the Secretary of the Co ssion
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UNITED STATES OF ~~
HUCLZ~R REGULP~ORY C~"" ISSION In the Matter o PACIFIC GAS AND ELECTRIC COMPANY
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( Diablo Canyon, Units 1 and 2)
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Docket No. (s)
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SERVICE LIST 50-275 50-323 Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 PhXlip A. Crane, Jc.,
Esq.
Pacific Gas 6 Electric Company 77 Beale Street, Room 3127 San Francisco, California 94106
'r.
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 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Pilchard S.
- Salzman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulator'Z Commission Washington, D.C.
20555 Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Thomas S. Moore, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C 20555 Counsel for NRC Staff Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washiggton, D.C.
205554 Janice E. Kerr, Esq.
California Public Utilities Commission 5246 State Building San Francisco, CaU.fornia 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, California 93440 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Gordon A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mrs'lizabeth Apfelberg c/o Ms., Nancy Culver 182 Luneta Drive San L'uis Obispo, California 93401
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Board and, arties << continued 50-275, -323 Brent Rushforth, Esq.
Stephen M. Kristovich, Esq.
Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 David P. Pleischaker, Esq.
1735 I Street, N.W., Apt. 709 Washington, D.C.
20006 Herbert H. Brown, Esq.
Hill, Christopher
& Phillips, P.C.
1900 M Street, N.W.
=Washington, D.C.
20036 Mr. J. Anthony Klein Governor's Office State Capitol Sacramento, Cidifornia 95814 Arthur C. Gehr, Esq.
Snell
& Wilmer 3100 Valley Center
, Phoenix, Arizona 85073 Mr. James
- 0. Schayler Nuclear Prospects Engineer Pacific Gas
& Electric Company 77 Beale Street San Prancisco, California 94106 Mr. Carl Neiburger San Luis Obispo Telegram-Tribune P.O.
Box 112 San Luis Obispo, California 93406 Mr. James Hanchett Public Affairs Officer, Region V U.S. Nuclear Regulatory Commission 1990 N. California Boulevard, Suite 202 Walnut Creek, California 94596 Bruce Norton, Esq.
3216 North Third Street, Suite 202 Phoenix, Arizona 85012 Yw. W. Andrew Baldwin, Esq.
Priends of the Earch 124 Spear San Prancisco, California 94105
Information co ies sent to:
Docket Nos.59-275,
-323 Mr. William Dennen 760 Cielo Lane Nipomo, California 93444 San Luis Obispo County Farm Bureau Route 3, Box 155-C San Luis Obispo, California 93401 Ms. Mary C. Phillips 2645 Ironwood Street Morro Bay, California 93442 Mr. Bruce Patrovsky Conservation Chairman Sierra Club Santa Lucia Chapter 985 Palm Street San Luis Obispo, California 93401 Mr. Dan Stack 474 Piney Way Morro Bay, California 93442 Mr. Jmes Jones 219 East Forster Road Santa Maria, California 93454 Field Supervisor Bureau of Sport Fisheries and Wildlife 2800 Cottage Way Sacramento, California 95825 Mr. Ian I. McMillan Box 63
- Shandon, California 93461 Mr. J.B. Neilands 185 Hill Road Berkeley, California 94708 Attorney General State of California Sacramento, California 95814 Mr. Irving Goldberg, Chief Environmental Radiation Control Unit Radiologic Health Section California Department of Health 714 P Street, Room 498 Sacramento, California 95814 Ms. Jane Swenson 311 Indian Knob Road San Luis Obispo, California 93401 Mr. Dale G. Bridenbaugh Mr. Richard B. Hubbard MHB Technical Associates 366 California Avnue - Suite 6
Palo Alto, California 94306 Mr. Donald G. Browne Department of Earth
& Space Sciences University of California, L.A.
Los.Angeles, California 90024 Mr. Martin Essayan The Trust Building, 3rd Floor 105 Sorel Avenue San Grus, California 95060 Ms. Marion Whylie 370 60th Street Oakland, California 94618 Mr. Chris O'Loughlin 2351 Carmel Street Palo Alto, California 94303
Inform'ation co ies sent to.
continued 50-275/323 (2)
Ms. A. Jane'Turner 21 Santa Maria 'Avenue Portola Valley, California 94025 Mr. Jeffrey Cotton 4344 Balboa Street San Francisco, California 94121 Mr. Harvey Rosenberg c/o Peets No.
7 Hill Park Avenue Great Neck, New York Ms. Lauretta Rice, President LWV of San Luis Obispo 1638 Carla Court San Luis Obispo, California 93401 Mr. Gary Burns 5431 Lancer Santa Maria, California 93454 Mr. Joseph B.
Cummers P.O.
Box 1122 Hanford, California 93230 Mr. Jim Antt, Jr., President Greater Bakersfield Chamber of Commerce P..O.
Box 1947 Bakersfield, California 93303 Mr. Richard A. Smith, General Manager and Chief Eneineer United Water Conservation District P.O.
Box 432 Santa Paula, California 93060 Mr. F. Gillar Boyd, Jr.,'resident Desert Water Agency P.O. Drawer 1707 Palm Springs, California 92262 Mr. Seabury Gould c/o C. Alexander RD 2, Box 394 Phoenixville, Pennsylvania 19460 Mr. Alfredo A. Pons 745 Darien Way San Francisco, California 94127 Ms. Anne Whetstone Fairfax, California 94930 Mare Sanders, M.D.
P.O.
Box 232 Corte Madera, California 94925 Mr. Daniel Stone 1374 17th Avenue San Francisco, California 94122 Ms.
Pam Menke 12 Dolores Street San Rafael, California 94901 Mr. Lawrence B. Kramer 1222 Second Avenue San Francisco, California 94122 Ms. Catherine Warren 70 Rodeo Avenue Sausalito, California 94965 Mr. W. Andrew Baldwin Friends of the Earth 124 Spear Street San Francisco, California 94122 Mr. David M. Bowman Box 738 Berkeley, California 94701 Mr. George Harrow 1219 Seventh Avenue San Francisco, California 94122