ML19263C681
| ML19263C681 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 01/23/1979 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7902280511 | |
| Download: ML19263C681 (11) | |
Text
NRO PUILIC DorminH T Mf
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UNITED STATER OF AMERICA p
NUCLEAR RFSULATORY COMMISSION 4
Mjh ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Richard S.
Salzman, Chairman Alan S.
Rosenthal k
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Dr. W.
Reed Johnson 3
SERVED jf,M E 'l o d b
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In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos. 50-275 OL
)
50-323 OL (Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
Messrs. David S. Fleischaker, Washington, D.
C.,
and John R.
Phillips and Steven Kristovich, Los Angeles, California, for San Luis Obispo Mothers for Peace, Scenic Shoreline Preservation Conference, Inc., Ecology Action Club, Sandra A.
Silver and John J. Forster, joint intervenors.
Messrs. Arthur C. Gehr and Bruce Norton, Phoenix Arizona, and John C.
Morrissey, Malcolm H.
- Furbush, and Philip A. Cr9te, San Francisco, California, for Pacific Gas and Electric Company, applicant.
Mr. Marc R. Staenberg for the Nuclear Regulatory Commission staff.
Mr. William M.
Shields for the Advisory Committee on Reactor Safeguards,.-amicus curiae (by special leave of this Board).
MEMORANDUM AND ORDER January 23, 1979 (ALAB-519)
I.
1.
A key issue in the ongoing contested proceeding for a license to operate the Diab}o Canyon nuclear power 700 2 28 0L5//
, plant is whether the facility incorporates sufficient protection against earthquakes.
Two of the consultants to the Advisory Committee on Reactor Safeguards expressed sharp criticism of the plant's seismic design and the assumptions underlying it.
(The ACRS' collegial opinion was to the contrary.)
Joint intervenors sought to subpoena those consultants to testify in these proceedings.--1/ The staff and applicant initially objected to their appearance as witnesses, contending that, as "NRC pe rsonnel", under the Rules of Practice they were not amenable to subpoena except "upon a showing of exceptional circumstances" and that such a showing had not been made.--2/
Without elaborating
~~1/
We are given to understand that the two consultants, Drs. Mihailo Trifunac of the University of Southern California and Enrique Luco of the University of California at San Diego, declined to testify unless subpoenaed.
See Tr. 7429.
_2 /
The Rules define "NRC personnel" for subpoena purposes to include " consultants to the Commission" and " members of advisory boards".
In applying the rule to ACRS consultants, the Board relied upon a November 29, 1978 "Interpre-tative Statement" of the Acting General Counsel expres-sing the Commission's view that 10 C.F.R. 92.720 is to be so understood.
See Tr. 7508, 7518.
We agree that, though section 2.720 "does not cover consultants to advisory boards like the ACRS in so many words, it may be fairly read to include them" where they have actually served in that capacity.
Were ACRS consultants not covered, no " exceptional circumstances" would be needed before they could he subpoenaed.
Whether this require-ment should be eliminated or broadened is not for us to say.
- its reasons for doing so, the Board below denied the subpoenas.
Tr. '4 6 8 4. '
On December 31, 1978, joint intervenors petitioned us for directed certification.
Their papers sought immediate reversal of the order denying the subpoenas.
Upon our call for expedited responses, the applicant and the staff suggested to the Licensing Board that it reconsider.
As a means of moving the proceeding along and of accommodating the intervenors, they offered to withdraw their objections and to stipulate that the two witnesses could be subpoenaed without a formal finding
_3/
The applicant cites transcript pages 4683-86 and 7518-21 as containing the Board's explana-tion.
The former pages, however, contain little more than an announcerent from the Board Chairman that
we have determined that excertional circum-stances have not been established.I' Tr. 4684.
To be sure, the Board there placed in the record
" Board Exhibit 2",
documents submitted by the two consultants to the ACRS purportedly explaining their position on the seismic questions at issue.
Tr. 4684-85.
But this cannot be why the Board found no exceptional circumstances for it later expunged that Exhibit, thus leaving the record barren of both the consultants' papers and their testimony.
Tr. 7518.
With all deference to the applicant, this hardly demonstrates the Board's " careful review of the extensive argument respecting the four reasons on which intervenors relied", much less a reasoned decision for its own actions.
In short, amicus curiae's observation that "[t]he Licensing Board did not provide the rationale for its finding" is quite justified.
. of exceptional circumstances.--4/
For reasons difficult to fathom, intervenors objected to that pragmatic solution; they now in-sisted on a finding of exceptional circumstances 5/
as a predicate to the issuance of the subpoenas!--
In the interest of brevity, we dwell no further on this procedural gavotte.
We simply note that the Board below, without further elucidation, declined to reconsider its ruling, to make the requested finding or to issue the subpoenas.--6/
The applicant and the staff thereupon responded to the petition for certification.
Both defend the result reached below.
As a possible solution to the problem at hand, however, the applicant suggests that we affirm the finding that no " exceptional circumstan-ces" have been shown but rule that the Licensing Board
--4/
Tr. 7420-21, 7425-26.
As staff and applicant's counsel explained, acceptance of their proposal would give intervenors their relief and leave no party free to complain abost it later.
Tr. 7423, 7434-35.
_5/
Tr. 7496-99.
--6/
Tr. 7518.
Even if all three parties had been willing to stipulate to issuance of the subpoenas as suggested, a majority of the Board would have refused to do so.
Ibid.
It was at this point that the Board also expunged its Exhibit 2. See fn. 3, supra.
. may issue the subpoenas without that finding if all the parties so stipulcte The staff, on the other hand, noting that intervenors reiected this solution when previously offered, would let them stew in their own juice and have us deny the petition.
II.
Applicant's pragmatic proposal is at first glance a not unattractive solution, although we can see some jusification in the staff's view that intervenors' failure to get their subpoenas is partly their own doing.
Be that as it may, the Licensing Board itself ruled out the applicant's suggestion and the ACRS, in its amicus brief, tells us that the subpoenas should not issue.
We there-fore decline the opportunity to come up with a
" creative" solution.
The question is too important to turn on such 3
niceties.
We proceed accordingly to consider whether exceptional circumstances in this case call for subpoena-ing the testimony of the two ACRS consultants.
In our judgment, they do.
All nuclear powor plants must be designed and cuilt to protect the public from the hazards of radioactive releases should the plant be subjected to movements in the earth's crust.
And such considerations were taken into account when the Diablo Canyon facility was initially proposed for its Pacific Coast site.
At that time the Nacimiento fault was taken to be the nearest major active fault, some eighteen to twenty miles north-7/
east of.the plantT-The facility was designed, engineered and constructed to withstand earthquake damage on this basis.
But, years after construction was approved and well underway, that assumption was discovered to be ill-founded.
Subsequent offshore explorations for petroleum have revealed that, as its closest point,the "Hosgri Fault" lies only a few miles off the site of the Diablo Canyon facility.
That proximity raised the likelihood that an earthquake in the vicinity of San Luis Obispo might 3
be " considerably more severe" than initially anticipated!
In light of this intervening development, the plant's design was extensively reanalyzed by the applicant, the
_7/
Diablo Canyon Safety Analysis Report (SFR), Supple-ment No.
1, p. 2-8 (January 31, 1975).
_8/
The present estimate of the severest earthquake likely to be encountered along the Hosgri Fault is 7.5 on the Richter Scale,according to the ACRS Report letter of July 14, 1978, p. B-2.
See fn. 9, infra.
9 s ta f f and the ACRS.
Their consensus was the Diablo Canyon facility as constructed, with some design modi-fications, would withstand safely the nore severe earth-quake shocks now reasonably anticipatable.--~9/
This brings us to the matter at hand.
Notwith-standing the ACRS' collegial conclusion, its report to the Commission expresses reservations about the 10/
seismic reevaluation undertaken of Diablo CanyonT' For example, the July l4, 1978 ACRS report letter notes that, for want of better data, certain calcu-lations were necessarily accepted "largely on [ expert]
judgment and experience rather than on extensive observations or analyses", judgments not previously 11 /
applied in approving power plant designs ~ The letter also acknowledges "that the design bases and criteria utilized in the seismic reevaluation of the Diablo Canyon Station for the postulated Hosgri event are in certain cases less conservative than those that would
_/
The staff's " seismic reevaluation" appears in 9
Supplements 7 and 8 to its Diablo Canyon Safety Evaluation Report (SER), issued in May and November, 1978, respectively.
10/
The ACRS report letters appear as Appendices B and C to SER Supplement 8.
It is not our purpose here to pass judgment on the adequacy of those evaluations and we have not done so.
_p/
SER Supp. 8, supra, at p. B-2.
, 12 be used for an original design."- /
The ACRS, however, found " offsetting factors that lead to acceptance of these bases and criteria for an already completed plant. 'd3 /
The ability of nuclear power plants to withstand earthquake damage is undeniably crucial in California, where seismic phenomena are not uncommon.
The Board, the staff, the applicant and amicus curiae have all allowed the procedural undergrowth to obscure the substantive forest.
This is more than a run-of-the-mill disagreement among experts.
We have here a nuclear plant designed and largely built on one set of seismic assumptions, an intervening discovery that those assump-tions underestimated the magnitude of potential earth-quakes, a reanalysis of the plant to take the new estimates into account, and a post hoc conclusion that the plant is 4
essentially satisfactory as is -- but on theoretical bares partly untested and previously unused for these purposes.
We do not have to reach the merits of those findings to conclude that the circumstances surrounding the need to make them are exceptional in every sense of Q / M. at p.
B-3.
13 / Ibid.
> that word.
Subpoenas to compel the testimony of the two ACRS consultants whose views diverge from the consensus just described are therefore not only per-missible under the Rules of Practice, but appropriate.
We so hold.
The petition for directed certification is granted; the Licensing Board rulings denying the subpoenas for Drs. Trifunac and Luco are reversed and the Board instructed to issue them forthwith; the cause is remanded for further proceedings con-14/
sistent with this opinion.
It is so ORDERED.
FOR THE APPEAL BOARD 3
z2a m Yt.<>
Margafet E.
Du Flo Secretary to the Appeal Board
[ Additional opinion by Mr. Rosenthal follows.]
14 /
The disposition we have made of this matter renders it unnecessary to decide whether, as intervenors also urge, the Licensing Board should be instructed to replace " Exhibit 2" in the record.
The substance of that exhibit are papers prepared by the two witnesses which may now be offered, subject to the usual objec-tions, in conjunction with their testimony.
, Additional opinion of Mr. Rosenthal, joininc in the Board's opinion.
Prior appeal board opinions to which I have subscribed reflect my strong disinclination to moni-tor the day-to-day conduct of licensing proceedings through the directed certification of interlocutory rulings.
Indeed, that reluctance was very recently reiterated in connection with a different ruling below in this very proceeding.
See ALAB-514, 8 NRF
(
__ December 22, 1978).
But it is just as plain to me as it is to my colleagues that the matter now at hand is sufficiently exceptional to mandate our intercession at this juncture.
Without retreating at all from my view that we should be very slow to undertake the interlocutory review of licensing board orders, I therefore join fully in both the grant of the certification petition and the relief afforded the intervenors on the merits of the con-troversy.
One further observation is regrettably appropriate.
As the Board's opinion notes, and as the ACRS brief amicus curiae acknowledges (see fn.
3, supra), the
- Board below failed to explicate its reasons for its ruling on this obviously important matter.
Less than three months ago, we were constrained to complain of that Board's failure to provide a reasoned decision on another key question arising in this proceeding.
See ALAB-504, 8 NRC __(October 27, 1978).
One would have thought that a single admonition would have sufficed.
My colleagues share my disappointment that such unhappily has not proven to be the case.--*/
i
--*/
In ALAB-504, we instructed the Licensing Board to reconsider its inadequately explained ruling and to provide a full explication of the reasons underlying whatever result is reached on that reconsideration.
In this instance, such a course would likely be productive of little other than additional and prejudicial delay.
This is be-cause it is difficult to perceive any rational basis upon which it might be concluded that the
" exceptional circumstances" test is not here met.
In my judgment at least, the issue of concern in ALAB-504 was a much closer one as to which reasonable minds could well differ.