ML19341A380
| ML19341A380 | |
| Person / Time | |
|---|---|
| Site: | Humboldt Bay |
| Issue date: | 01/15/1981 |
| From: | Brown L, Sherwood M JONES, BROWN & CLIFFORD, SHERWOOD, M.R., Sierra Club |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8101230238 | |
| Download: ML19341A380 (13) | |
Text
.
g.lls, 9
UNITED STATES OF AMERICA h
NUCLEAR REGULATORY COMMISSION JAN11 MEN >:'l 0Fia cf the Sumeur 7f BEFORE THE ATOMIC SAFETY AND LICENSING BOA Cid Sindce In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket No. 50-133
)
License No. DPR-7 (Humboldt Bay Power Plant, Unit No. 3)
)
)
f; INTERVENORS' ANSWER IN RESPONSE TO MOTION U
TO WITHDRAW APPLICATION FOR
~
[}
LICENSE AMENDMENT
~
INTRODUCTION 7..
l~
Intervenors Thomas K. Collins, Dr. Elmont Honea, Frederick P. Cranston, Wesley Chesbro, Demetrias L. Mitsanas, the Six Rivers Branch of Friends of the Earth, and the Sierra Club hereby respond to PG&E's Motion to Withdraw Application for License Amendment ("the Motion").
Intervenors oppose the motion to the extent that it requests this Board to issue an order " terminating without prejudice further action on the application," Motion, p. 3.
Instead, Intervenors believe that the proper course for the Board to follow is to terminate action on PG&E's application 1/
The Motion is dated December 31, 1980.
The certificate of service indicates that it was served by mail on that date.
Due no doubt to the intervening holidays it was not received in the office of undersigned Counsel until Monday, January 5, 1981.
Becau~e it was served by mail, Intervenors have 15 days within which to answer, or, in this case, until January 15, 1981.
10 C.F.R. SS 2.730(c); 2.710.
J l
810 1108 0 2058 g,
s with prejudice, by issuing an order denying the application and ordering that the Humboldt Bay Power Plant, Unit No. 3 ("the plant") be permanently shut down and decommissioned.
Intervenors urge the Board to do so, on the grounds that PG&E has, by its own admissions, conceded in effect that the plant cannot be operated safely and in compliance with the provisions of its license, the Atomic Energy Act ("the Act"), the regula-tions promulgated by the NRC thereunder, or with the orders of the Commission.
Moreover, PG&E has stated that it has no present intention of expending the funds necessary to bring the plant into compliance with the Act, regulations, or orders of the Commission.
They ask instead that they be allowed indefinitely to retain their operating license for a contaminated nuclear power plant that has not generated a single watt of electricity in half a decade, and that all parties now agree cannot be operated safely in its present state, on the basis of a vague hope that "when NRC retrofit standards become better known, it may well be that the currently projected costs are less than expected and it may then be economic to make the required plant modifications."
PG&E Motion, pp. 2-3.
Intervenors submit that such an option is not open to PG&E under the law, and Intervenors urge the Board to reject this outrageous attempt by PG&E to shift to the Commission the onus of PG&E's legal obligations to comply with the safety
. regulations.
If PG&E is unwilling or unable to comply with the terms of its license and with the law and orders of the Commission, its license should be revoked and the plant ordered shut down and decommissioned at PG&E's expense.
FACTS On January 21, 1969 the Commission granted License No. DPR-7 to PG&E to operate the plant.
The license was issued
" subject to all applicable regulations and orders of the Commission now or hereaf ter in ef fect".
License No. DPR-7, p.
2, Section C (emphasis supplied) /
2 On May 21, 1976, the Commission issued an " Order for Modification of License" for the plant, which added a new paragraph F to PG&E's license.
Subparagraph E(1) required PG&E to upgrade the plant so as "to meet current regulatory require-ments with respect to withstanding the effects of the Operating Basis Earthquake of 0.25g", and subparagraph E(2) required PG&E to conduct geologic and seismic investigations in order to demonstrate, in essence, that the plant is seismically safe.
In particular, among other specific items, the Commission ordered PG&E to locate accurately and assess the 2/
The Act itself provides that "The terms and conditions of all licenses shall be subject to amendment, revision, or modification, by reason of amendments of this :hapter or by reason of rules and regulations issued in acccordance with the terms of this chapter."
42 U.S.C. S 2237.
See also 10 C.F.R.
S 50.54(h).
l
l
. the capability of the Bay Entrance and Little Salmon faults.
With regard to the Bav Entrance fault, the Commission ordered' that "If-this fault cannot be shown to be noncapable within the meaning of Appendix A, Section IIIg(l) it must be demonstrated that movement on it cannot be expected to cause surface dis-placement within the plant area."
Paragraph E(2)(a).
With respect to the Little Salmon fault, the Commission ordered that "An upper limit for the age of the last movement must be established by reliable dating techniques sufficient to demonstrate that the fault is noncapable."
Paragraph E(2)(b).
On May 20, 1977, PG&E moved that Paragraph E be deleted, on the grounds that they had substantially complied with subparagraph E(1), and that the geologic and seismic investigation required by subparagraph E(2) "will be complete by July 1, 1977", and that those studies "will provide addi-tional verification that the Humboldt Bay Power Plant site meets the requirements of Appendix A to 10 C.F.R.,
Part 100."
PG&E's Application for Amendment dated May 20, 1977, p. 4.
Three and one-half years, at least three requests for more time, and as many broken deadlines later, PG&E finally sub-mitted, on October 1, 1980, a report by its experts, Woodward-Clyde Consultants, entitled Evaluation of the Potential for Resolving the Geologic and Seismic Issues at the Humboldt Bay Power Plant UI.it No. 3 ("The WCC Report").
As is indicated in the very title to this document, however, this report does not
. even purport to make the demonstrations required by the Commission in Paragraph E:
it merely concludes, in the words of counsel for PG&E, "that the seismic and geologic issues raised by the NRC staff appear capable of resolution."1 Motion to Withdraw Application for License Amendment, p. 2.
The WCC Report does not speculate or even inply that the resolution of these issues will necessarily be in favor of PG&E.
To the contrary, the main substantive findings that the WCC Report does make are that both the Bay Entrance and Little Salmon faults are in fact " capable", and, indeed, that a pre-viously unmentioned third fault, called the Buhne Point fault, lies within the immediate vicinity of the plant site, and is also " capable."
Thus, if anything, the WCC Report only serves to justify and underscore the NRC staff's concern that this plant is located in the middle of an extraordinarily active earthquake zone, / immediately adjacent to at least three major 3
capabla faults.
The WCC Report concludes that "the potential for resolving the issue of surface faulting [at the plant site] is high", and "the potential for resolving the technical issues related to ground motions is high", covering letter from 3/
An astounding illustration of this is Catalog 1, attached to Appendix D to the WCC Report, " Historical Earthquakes in the HumbolAt Region 1915 through 1978, Magnitudes Greater Than 3.0".
This is simply a list and brief description of every such earthquake in the area from 1915 to 1978.
The list takes up some 71 pages of small type computor read-out, and includes 1109 earthquakes!
I l
l
. Mssrs. Cluff, Patwardham and Swan to PG&E, dated October 1, 19 80, WCC Report, but does not in fact make any conclusiorJ about the probabilities of surface faulting at the site in the event of a r.4ajor quake, or of ground motions at the site as a result of such a qu.ske along any of the at least three capable faults within a three mile radius of the plant.
In order to resolve these questions, " additional investigations will be needed".
Preface to the WCC Report Appendices.
PG&E has now also submitted a report by the Bechtel Power Corporation entitled "Humboldt Bay Power Plant - Unit 3:
Future Licensing Requirement Cost Impact" which purports to estimate how much it will cost the utility to bring the plant into compliance with the safety provisions of the Act and NRC regulations, and with the terms of Paragraph E of PG&E's license for the plant.
Based upon these reports, PG&E now moves to withdraw its May 20, 1977 application, stating the "the studies indicate that the potential costs of additional equipment and operating personnel are high when measured against the size of the faci-lity and its remaining useful li,fe".
PG&E Motion, p. 2.
PG&E has thus in effect conceded that it is unable or unwilling tc expend the funds necessary either to complete the seismic and geologic investigations ordered by the Commission nearly five years ago (much~less to upgrade the plant as necessary once the final results of those investigations are in hand), or to bring
. the plant into compliance with newly issued post-Three Mile Island safety regulations promulgated by the Commission.
PG&E suggests, however, that at some unspecified
- future date "it may... be economic to make the required plant modifications" depending, apparently, on what safety " retrofit" regulations the Commission may or_may not promulgate.
Based on this unsupported speculation, PG&E asks this Board to allow it to withdraw its application "without prejudice", thus. leaving the door open for a renewed application in the future.
If the Board submits to'this request, however, thus allowing an unsa-tisfactory status quo to continue indefinitely, it will in effect be sanctioning PG&E's continuing non-compliance with the law, the terms of its license, and the orders of the Commission.
ARGUMENT A condition of the license issued to PG&E by the Commission is of course that PG&E comply with all applicable provisions of the Act, the regulations, and orders of the Commission, including those promulgated or issued after the date of the license.
As noted above, the license expressly itself so provides, and even if it diu not, the Act and the regulations both impose that condition as a matter of law on all operating licenses.
See 42 U.S.C.
SS 2233, 2237; 10 C.F.R.
SS 50.40(a), 50.54(h), 50.57(a)(2).
Section 50.54(h), for 1
example, provides that l
. "The license shall be subject to the provisions of the act now or hereafter in effect and to all rules, regulations and orders of the Commission."
To the extent, then, that PG&E is in non-compliance with the' regulations and orders of the Commission, it is in violation of the terms of its license.
The Commission should not reward PG&E for its non-compliance by allowing it to retain its license while at the same time not expending the funds necessar'y either to bring the plant into complianca or to decommission it.
As discussed above, it is now beyond dispute that PG&E has failed to comply with and intends to take no further action to comply with the May 21, 1976 Order of the Commission, that is to say with~ paragraph E of its license.
This admitted and wilful non-compliance in and of itself is grounds for revo-cation of the license. See 42 U.S.C. S 2236; 10 C.F.R.
S 50.100.
Furthermore, the Act authorizes the Commission to issue licenses only to persons "Who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property as the Commission may by rule establish."
42 U.S.C. S 2133(b).
See also 10 C.F.R. S 50.40(a), -(c).
PG&E has demonstrated, by its conduct over the last 5 years, and, indeed has now expressly acknowledged by its present motion, that it is not equipped to observe and does not agree to observe the safety standards promulgated by the Commission.
This constitutes another ground for revocation of the license
. and an order decommissioning the plant. !
PG&E is, by its own admission, now in blatant violation of various other provisions of the regulations.
For example, 10 C.F.R. S 50.33(f) requires that PG&E demonstrate in an application for an operating license that it
" possesses or has reasonable assurance of ob-taining the funds necessary to cover the estimated costs of opera ~ tion for the period of the license or for 5 years, whichever is greater, plus the estimated costs of per-manently shutting the facilities down and maintaining it in a safe condition."
Similarly, 10 C.F.R. S 50.40(b) requires as a common standard for all licenses that "The applicant is technically and financially qualified to engage in the proposed activities in accordance with the regulations in this chapter."
~
The Commission must make such a finding before issuance of a license.
10 C.F.R. S 50.57(a)(4).
PG&E by its motion concedes that it either does not possess, or is unwilling to spend, the funds necessary, and is not technically and financially qualified, to operate the plant in accordance with the regulations.
This concession would have disqualified PG&E from obtaining a license in the first instance and should disqualify it now from continuing to possess its license.
4/
Both the Act and regulations provide that a license may be revoked for any reason that "would warrant the Commission to refuse to grant a license on an original application."
42 U.S.C. S 2236; 10 C.F.R. S 50.100.
. Most importantly, the Act expressly prohibits the
)
issuance of a license if issuance "would be inimical to the common defense and security or to the health and safety of the public. "
42 U.S.C. S 2133(d).
See also 10 C.F.R. S 50.40(a),
50.40(c).
The Act therefore requires that before issuing a license the Commission make a finding that operation of the plant "will provide adequate protection to the health and safety of the public."
42 U.S.C. S 2232(a).
See also 10 C.F.R.
SS 50.57(a)(3), 50.57(a)(6).
More specifically, the regulations require that the plant be sited and designed so as to be able to avoid if possible and withstand if necessary the effects of earthquakes.
See 10 C.F.R. Part 50, Appendix A (" General Design Criteria for Nuclear Power Plants"), Criterion No. 2; 10 C.F.R. Part 100, Appendix A (" Seismic and Geologic Siting Criteria for Nuclear Power Plants").
The concerns for the public safety first expressed by the NhC Staff nearly 5 years ago which led to the May 21, 1976 Order refusing to allow PG&E to restart the plant until it had demonstrated to the Commiss'.on's satisfaction that the plant is able to withstand a major earthquake in the vicinity of the site have not been resolved.
PG&E has not made the demonstra-tion ordered by the Commission, and now has told the Commission
.- 5 that it does not intend to do so. /
Indeed, as noted abov3, l
the study prepared by PG&E's own experts demonstrates if i
anything that the plant is located in an area that is perhaps even more earthquake-prone than previously believed, and thus provides ample justification for the staff's concerns.
These concerns, bolstered now by information disclosed by PG&E itself, obviously would have justified the Commission in refusing to grant PG&E a construction permit for the plant in the first instance, and perhaps would have required that resnit; they therefore are sufficient grounds now for revocation of the license and decommissioning of the plant.
The fact the PG&E itself has now told the Commission that it does not intend to conduct the further geologic and seismic studies it claims are necessary to determine whether the plant can be made safe, let alone to perform whatever retrofitting and upgrading would be required to insure that the plant is not
" inimical... to - the health and safety of the public" (assuming 5/
Intervenors suggest, as they have previously in opposing the last two of PG&E's requests for more time in which to com-ply with Paragraph E(2) of their license, that the reason for PG&E's failure is plain:
PG&E simply is not able to make the demonstration required by the Commission because such a demon-stration is not possible.
This is so because the plant is in fact not safe.
It is in fact unfortunately sited in an extra-ordinarily earthquake-prone area, immediately adjacent to at least three major, capable faults.
And it is in fact not designed or constructed to withstand either the surface rup-turing or ground motion that would be generated by a major earthquake in the area.
1
~
1 that that could be done at all), lendr curther impetus to the need for this particular nuclear power plant to ba permanently shut down and decommissioned, once and for all.
CONCLUSION This Board should not allow PG&E to avoid the con-sequences of its wilful non-compliance with the terms of its license, the provisions of the Act, and the Commission's regulations and orders.
PG&E's motion to withdraw its applica-tion should only be granted with prejudice, and the Board should order the plant permanently shut down and decommissioned within a reasonable but fixed period of time, at PG&E's expense.
Dated:
January 15, 1981.
Respectfully submitted, LINDA J.
BROWN, ESQ.
Jones, Brown & Clifford 100 Van Ness Avenue, 19th Floor San Francisco, CA 94102 Telephone:
(415) 431-5310 MICHAEL R.
SHERWOOD, ESQ.
Sierra Club Legal Defense Fund, Inc.
311 California Street, Suite 311 San Francisco, CA 94104 s
Telephone:
(415) 398-1411 By
/
44 /
p MICHAEL R.
SHERWOOD
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket No. 50-133
)
License No. DPR-7 (Humboldt Bay Power Plant, Unit No. 3)
)
)
CERTIFICATE OF SERVICE The foregoing document, Intervenors' Answer in Response to Motion to Withdraw Application for License Amendment, has been served today on the following by deposit in the United States mail, properly stamped and addressed:
Richard F.
Locke, Esq.
Robert M.
Lazo, Esq. Chairman Counsel for PG&E Atomic Safety and Licensing 77 Beale St.,
31st Floor Board Panel San Francisco, CA 94106 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Steve Goldberg, Esq.
Office of Executive Legal Gustave A.
Linenberger, Member Director Atomic Safety and Licensing BETH 042 Board Panel U.S. Nuclear Regulatcry U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20055 Dr. David R.
Schink, Member Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission Department of Oceanography Washington, D.C.
20555 Texas A & M U iversity Attn:
Docketing and Service College Stati<r.
TX 77840 Section Dated:
January 15, 1981
@0 MICHAEL R.
SHERWOOD Attorney for Intervenors