ML20010D894
| ML20010D894 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 08/31/1981 |
| From: | Chandler L, Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8109020030 | |
| Download: ML20010D894 (15) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fiMISSION 6;JJ SEP 0119M*
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD mmg[ p 9
In the itatter of 9
SOUTHERN CALIFORNIA EDIS0N COMPANY,)
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50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3)
)
NRC STAFF'S RESPONSE TO APPLICANTS' REQUEST FOR CERTIFICATION TO THE NUCLEAR REGULATORY COMMISSIOJi INTRODUCTION On August 17, 1981, Southern California Edison Company and San Diego Gas and Electric Company ( Applicants) requested this Board to certify an issue to the Commission which was raised by the Board sua sponte in its August 7,1981 Order (Modifying an Issue Concerning Earthquake and Emergency Planning). The NRC Staff supports certification of the issue but would clarify and restate the question to be certified as follows:
Whether the Commission's Rules permit inquiry into the effects on a licensee's energency response capability of severe natural phenomena which are not reasonably postulated to occur during a radiological emergency throughout the facility's operating li fetime.
Certification is appropriate because the Board's Order raises issues currently pending before other licensing boards, could have severe adverse impacts on the timely completion of the licensing process and could jeopardize not only the orderly conduct of this proceeding but of other ongoing proceedings as well.
YI pn888m8gh ose
BACKGROUND The Licensing Board in this proceeding has had before it for some time the issue of the extent to which consideration of earthquakes should play a role in assessing the adequacy of emergency preparedness for the San Onofre Nuclear Generating Stations, Units 2 and 3 (SONGS 2 & 3).
In its April 8,1981 tiemorandum and Order (Rulings on Motions to Compel Answers to Interrogatories), the Board recognized that discovery on an issue involving the extent to which a " major earthquake" could impact upon the functioning of Applicants' emergency plan raised a new matter in thisproceeding.E In its !1emorandum and Order of April 17,1981(Ruling on liotion for Protective Order), the Board recognized that no contentions in the proceeding encompassed earthquake considerations.
Nonetheless the Board permitted Intervenors to continue discovery on this matter to assist the Board in determining whether it would itself pursue tnese concernssuasponte.E Subsequently, the Board called for briefs on the issue in its revised Prehearing Conference Order of May 28, 1981. The NRC Staff filed its views with the Board on June 22, 1981, On July 29, 1981, the Board issued its Order (Raising on Board's Motion an Issue Concerning Earth-s.
y April 8,1981 liemorandum and Order, pp.1-2.
y April 17, 1981 Memorandum and Order, p. 7.
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d quakes ano ergency Planning) and permitted the parties to comment on this issue.
The NRC Staff, following the guidance in NUREG-0654, Rev.1, pp. 4 to consider natural phenomena which may be projected to be experienced in the plant vicinity, has requested applicants in earthquake i
prone regions to centider earthquakes as a part of their emergency planning. This is consistent with the consideration of other environ-nental factors such as blizzards, fog, tornados or hurricanes in other geographical climates. The phenomena to be considered are those reasonably anticipated in the g(' graphical region where the site is situated but do not *nclude severity levels not reasonably expected to be experienced during the facility's operating lifetime. To avoid the problem of deter-nining what severity of earthquake should be considered as prudent for planning purposes the Staff indicated in its June 22, 1981 brief that the SSE level of severity would bound even the most conservative planning assumptions.E In view of the level of seismic activity in California, prudent emergency planning in the Staff's view, requires some consideration of the ability to transport necessary personnel to the plant to cope with the earthquake.
In addition, there should be assurance of continued communication between the plant and off-site agencies. Capability should exist to obtain damage estimates both to the plant and to communication and transportation facilities off site to prepare a data base to factor
_3f The OBE appears, by definition, to more closely reflect the severity that might reasonably be expected to occur,10 C.F.R. Part 100, App. A. III(d).
into the decisionmaking process.
Finally, the Applicants should have available a range of recommendations to off-site authorities taking into account the degree of damage to the plant caused by an earthquake and to transportation and communication facilities off site. These factors warrant consideration to assure that Applicants and other emergency response agencies have the capability to appropriately implement their emergency plans.
The Staff is, however, of the further view that consideration need not be given to a very severe seismic event coincident or nearly coin-cident with a significant accident posing a radiological hazard due to the very low likelihood of occurrence of such a coincident or nearly coincident set of events. The Board apparently shares the Staff's view on this point for it stated in its April 17, 1981 Memorandum and Order:
We would go much further. Without in any sense questioning the need for guarding against the event, and whatever the mathematical odds may be, one can say tLit the likelihood of a major radialogical emergency with serious offsite effects at a particular nuclear power plant is "relatively improbable." Similarly, even in a seismically active area, one can say that the chances of a major earthquake's occurring in the forty-year life of a nuclear plant and disrupting key elements of its emergency plan is "relatively improbable." That both of these "relatively improbable" events could occur at or about the same time--the Applicants' "multipTe disaster"--seems virtually inconceivable.
Such a remote contingency can be safety disregarded for any regulatory purpose (foot-note omitted). At p. 5.
Nonetheless, the Board subsequently determined to inquire, on its own, into the impacts of earthquakes greater than the SSE.O The Board specifically indicated in its August 7,1981 order.
In posing the foregoing the Board wishes to learn what the physical consequences of earthquakes, in a scale of increasing severity beyond the SSE, would be upon the emergency plans as they relate to communications and evacuations up to some presumed point where evacuation would become a physical impossibility in any reasonable time fram.e.
A point of beginning should relate to the presumed consequences of an SSE magnitude earthquake upcn evacuation and the necessary related communicacior.,
and highways. At p. 3.
[Emphasisadded.]
The Staff's comments were filed on August 4,1981, and on August 7, 1981, the Board issued its Order (Modifying an Issue Concerning Earth-quakes and Emergency Planning). On August 17, 1981, the Applicants filed their Request for Certification to the M lear Regulatory Commission.
In the cover letter accompanying Applicants' request, Applicants sought expedited consideration of this question by the Licensing Board. The Staff supports expedited consideration of this question by the Licensing Board and strongly supports Applicants' request for certification to the Nuclear Regulatory Commission of the appropriateness of consideration in this proceeding of the issue identified by the Board in its August 7, l
1981 Order.
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Although consideration of the effect of an SSE in itself imposes a very conservative level of severity, the Staff did not object to offering evidence to this extent. The Board Order, however, clearly goes beyond.
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DISCUSSION A.
Standards for Certification The standards to be applied in determining whether an interlocutory appeal will be considered have been stated to be where the ruling either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal, (2) affected the basic structure of the pro-ceeding in a pervasive or unusual manner or (3) presents a significant legal or policy question en which Commission guidance is needed.
Public Service Company of Indiana (liarble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977), U.S. Nuclear Regulatory Commission State-ment of Policy on Conduct of Licensing Proceedings, dated May 20, 1981, at p. 7; see also Houston Lighting & P0wer Company (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309 (1981). The instant request for certification meets all three tests.
Applicants assert that the Board's sua sponte issue will require the development of a new emergency plan and the presentation of testimony on that plan. Memorandum of Points and Authorities in Support of Request for Cer-tification to the Nuclear Regulatory Commission (Memo. in Support), at
- p. 4.
Applicant also asserts, and the Staff agrees, that this new require-ment will lead to additional delays to the conclusion of this proceeding which could cause then irreparable harm.
With respect to the second criterion, the proposed issue will pervasively affect the basic structure of this proceeding by requiring a restructuring of the hearing schedule and a burdensome expansion of the scope of required evidence.
(Memo. in Support, p. 4). While the Staff believes that the meeting of the first L
and second criteria establish that certification is appropriate in this case, it is the third criterion which the Staff believes establishes a compelling reason for certification.
The action taken by the Licensing Board has implications with respect to the regulatory program which the Commission should consider.
Simply put, the Licensing Board's Order of August 7,1981, in its two and one-half typewritten pages, extends this Commission's emergency planning regula-tions to require explicit consideration in this proceeding of the Applicants' emergency planning capability complicated by an earthquake in excess of the Safe Shutdown Earthquake (SSE). However, this expansion of the scope of emergency preparedness issues which must be considered will, if adopted by other boards affect all Part 50 license applications since it calls for explicit consideration of the effects of emergency planning of very severe natural phenomena, in fact, of a severity beyond that considered in establishing the fundamental safety integrity of the facility.
B.
Standards for Raising Issues Sua Sponte With respect to the Licensing Board's exercise of its sua sponte power under 10 C.F.R. 6 2.760a, the Staff would note that the Commission has limited the use of that authority by regulation to "... serious safety, environmental, or common defense and security matter [s]...."
10 C.F.R. 9 2.760a.
Although under 10 C.F.R. 2.760(a) a Board is required to find that a serious safety, environmental, or common defense and security matter exists in order to consider a new issue sua sponte, the Licensing Board has made no such finding here.
Indeed, quite to the contrary, as the exerpts from the Board Orders of April 17 and July 29, 1981, supra at pp. 5-7, indicate, the Board is of quite the contrary view, namely, that L
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1 8-the potential for a serious earthquake in excess of the SSE is " rela-tively improbable." Neither the July 29, 1981 Order nor the August 7, 1981 Order lays a foundation for the exercise of the Board's sua sponte authority.
Certification of this question to the Commission would provide the Licensing Board with an opportunity to fully outline its thinking on this point to assist the Commission in making a determination as to whether sua sponte authority was properly exercised in this case.
C.
Applicants' Arguments for Certification Applicants' arguments may be categorized as raising two significant issues which meet the second or third Marble Hill, supra, standards fnr certification (unusual or pervasive effect on the basis structure of the proceeding or presents a significant legal or policy question on which Commission guidance is needed).
First, reading 10 C.F.R. Part 50 6 50.47 in pari materia with 10 C.F.R. Part 100 Appendix A Applicants argue that the Board is legally barred from considering earthquakes more severe than the SSE identified for the site absent a finding pursuant to 10 f.F.R. % 2.758 of special circumstances or at least a serious safety issue pursuant to 10 C.F.R. 9 2.760a.
(Memo In Opposition, pp. 38, 34, see also pp. 26, 30 and 40).
Second, Applicants take issue with the Board's application of the Vermont YankeeN octrine in this proceeding arguing that while boards d
may be permitted to investigate matters not specifically governed by regulations, they are not perm 1*,ted to undertake in;estigatiens neither
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Vermont Yankee Nuclear Power Corporation (Vermont Nuclear Pmier Station), CLI-74-40, 8 AEC 809 (1974).
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9-required ncr authorized by governing regulations because such inquiry constitutes either a challenge to the sufficiency of the Commission's regulatinns or an impermissible usurption or...
ission's rulemaking authority.
(ftemo In Opposition p. 39).
Applicants' first argument that the Commission's regulations bar boards from considering eartSquakes more severe than the SSE is derived from an analysis of the history of emergency planning requirements.
(tiemo In Opposition pp. 4-24).
Applicant also argues by analogy that since the finding required by 10 C.F.R. 9100.10(c)(1) is no less stringent than that required by 10 C.F.R. Q 50.47(a)(1) it must be logically concluded that earthquakes no more severe than the SSE are to be considered pursuant to the emergency planning rules.
(Memo p. 25).
Although the Staff does not agree with Applicants' assertion that the rules prohibit consideration of eirthquakes, the Staff agrees that both the Commission's prior practice and the logic of its regulatory scheme demonstrate that consideration of earthquake events more severe than the SSE is inappropriate. To abandon prior practice in this proceeding would unusually affect the basic structure of the proceeding and would present an issue on which Commission guidance should be sought.
The implications of the Licensing Board action in this matter are extensive. The same criteria are applied to all Part 50 licensees with respect to the General Design Criteria as well as for earthquake consider-ations. The earthquake criteria are set forth in 10 C.F.R. Part 100, Appendix A and are generically applied recognizing the seismic activity of the reion in which a facility is located. The criteria are uniform
and their application should produce site-specific SSE's with approxi-mately equivalent degrees of conservatism inherent in them. An SSE selected for a facility in California will be somewhat larser than an SSE selected'for a facility in a less seismically active region. Consequently, there are no distinguishing circumstances which would prevent the appli-cation of the Board's approach to all Part 50 facilities.
Indeed, if the Board's approach is valid, the Nuclear Regulatory Commission would in fact be compelled to require that the same type of examination sought by the Licensing Board in this proceeding be conducted for each facility l
licensed pursuant to Part 50.
In effect then, the Licensing Board's l
action has dramatically increased the sweep of the Commission's emergency planning regulations and extended those regulations to require in each licensing proceeding explicit consideration of emergency planning compli-cated by an earthquake in excess of the SSE with its attendant radiological impacts as well as other severe natural eccurrences which are not reasonably postulated to occur during the facility's operating lifetime.
In fact one could, based on this Licensing Board's action further extend consideraticn to other events exceeding design basis criteria. While the Commission may view such an extension to be., roper, such an expansion of the Commission's emergency planning regulations should be a question for the Commission to f
l decide.
With respect to Applicants' second argument, the Staff has previously addressed the Vermont Yankee case in "NRC Staff Views..." filed June 22, 1981. As we indicated in that pleading, while Vermont Yankee does not, as a matter of law, foreclose inquiry into earthquakes larger than an SSE, such inquiry mu3t be based on a reasonable factual basis for asserting that consideration of such events is warranted. We disagree with the L
Licensing Board's application of the Vermont Yankee doctrine to the facts in this proceeding in order tc justify the f ssue posed by the Board. The mere fact that the SONGS facility is located in a region known for earthquake activity does not justify consideration of hypothetical earthquakes more severe than those which can be reasonably identified and/or expected to occur during the facility's operating life.
In Vermont Yankee the Commission concluded that if appropriate find-ings are made, consideration of criteria beyor.d that set forth in the rules may be acceptable. Whether such consideration is appropriate is a question to be deternined based on the particular circumstances of the case involved. The Commission specifically held that such a deter-mination must be appropriate in the circumstances of a specific case and must have a factual basis. On this point the Commission said in Vermont Yan-kee:
Thus, we specifically hold that the phrase " degraded emergency core cooling functioning" as used in criterion 50, means energency core cooling functioning degraded beyond the requirements of the acceptance criteria, though not to the point of ECCS failure.
Reliance upon this concept in a licensing case must come of course, accompanied by a showing that the parties position has
_a__f actual basis.
(Emphasis supplied).
- p. 8-12.
However, no analogy with Vermont Yankee can be made in this proceeding.
The Licensing Board has not identified a regulatory requirement much less a General Design Criterion which would warrant extension of emergency planning considerations to earthqeakes in excess of the 3SE. The record before this Licensing Board is totally devoid of any factual basis for such an extension.
In fact, the Board has recognized on a number of occasions the speculative nature of its inquiry.
In its April 17, 1981 Memorandum and Order, the Board noted "... even in a seismically active area, one can say that the chances of a major earthquake's occurring in
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the forty-year life of c nuclear plant and disrupting key elements of its emergency plan is 'relatively improbable'". At p. 5.
In its July 29, 1981 Order, the Board noted "although it is ev.tremely unlikely, an earthquake
- n excess of the SSE could conceivably occur near the facility."
(8nphasis supplied). At pp. 2-3.
Presumably this last comment was made by the Board with appreciation of the extensive factual record which has been developed before it on the, very question of the conservatism inherent in the SSE. The hearing before the Board had been in session for about twenty days solely on the geology-seismology contentions admitted yet neither its July 29, 1981 Order nor the August 7, 1981 Order contains any suggestion that the conservatism which both Applicants and NRC Staff argue is present in the SSE selected for SONGS 2 & 3 was questioned by the Board to the extent of rising to the level of a "... serious safety, environmental, or common defense and security matter...."
10 C.F.R.
D 2.760a.
Indeed, neither order even suggests that such a matter is raised.
The Licensing Board has not established the required factual basis to extend consideration of severe earthquakes in the context of emergency planning.
Such basis must be stated by a Licensing Board if the parties are to have the due notice of the substance of the concern to which they are entitled to enable them to meaningfully address the matter in the context of the evidentiary hearing.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 (1978) at 411.
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Although not agreeing with Applicants' conclusion that the Board's sua_ sponte issue is a violation of the Administrative Procedure Act since it constitutes reulmaking without notice and comment, the NRC Staff does believe-that the Board's action is not consistent with the Cannission's intent in Vernont Yankee and thus, if not withdrawn, raises a significant legal and policy question on which Commission guidance is required.
CONCLUSION The Staff supports Applicants' request for certification to the Commission of the issue framed by the Licensing Board in its August 7, 1981 Order.
A major question of both law and policy is involved and the criteria of the Commission's Statement on Policy on Conduct of Licensing Proceedings is met.
Furthermore, certification of the question would provide tne Conmission with additior.a1 information to assist in deter-mining whether or not the Licensing Board properly exercised its sua sponte powers in taking this issue up on its own motion.
Re ectfully submitted,
'k 04W Richard K. Hoefling Counsel for NRC Staff d ha 0
La rence. Chan ler
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Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 31st day of August 1981
4 UNI; r, STATES OF AMERICA NUCLE *R REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _
In the Matter of
)
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SOUTHERN CALIFORNIA EDISON COMPANY,
)
)
50-362 OL
)
(San Onofre Nuclear Generating Station, )
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO APPLICANTS' REQUEST FOR CE.RTlrICATI0f1 TO THE flVCLEAR REGULATORY COMf11SSION" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this 31st day of August,1981:
- James L. Kelley, Esq., Chairman David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq.
Atomic Safety and Licensing Board John A. Mendez, Esq.
U.S. Nuclear Regulatory Commission Edward B. Rogin, Esq.
Washington, D.C.
20555 Of Orrick, Herrington & Sutcliffe A Professional Corporation Dr. Cadet H. Hand, Jr.,
600 Montgomery Street Administrative Judge San Francisco, California 94111 c/o Bodega Marine Laboratory University of California Alan R. Watts, Esn.
P. O. Box 247 Daniel K. Spradlin Bodega Bay, California 94923 Rourke & Woodruff 10555 North flain Street Mrs. Elizabeth B. Johnson, Suite 1020 Administrative Judge Santa Ana, California 92701 Oak Ridge National Laboratory P. O. Box X, Building 3500 Richard J. Wharton, Esq.
Oak Ridge, Tennessee 37830 University of San Diego School of Law Alcala Park Janice E. Kerr, Esq.
San Diego, California 92110 J. Calvin Simpson, Esq.
Lawrence Q. Garcia, Esq.
Mrs. Lyn Harris Hicks California Public Utilities Commission GUARD 5066 State Building 3908 Calle Ariana San Francisco, California 94102 San Clemente, California 92672
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. Charles R. Kocher, Esq.
A. S. Carstens James A. Beoletto, Esq.
2071 Caminito Circulo No-te Southern California Edison Company Mt. La Jolla, California 92037 2244 Walnut Grove Avenue Rosemead, California 91770
- Atomic Safety and Licensing Board Panel David W. Gilman U.S. Nuclear Regulatory Commission Robert G. Lacy Washington, D.C.
20555 San Diego Gas & Electric Company P. O. Box 1831
- Atomic Safety and Licensing Appeal San Diego, California 92112 Board Panel U.S. Nuclear Regulatory Commission Phyllis M. Gallagher, Esq.
Washington, D.C.
20555 1695 West Crescent Avenue Suite 222
- Secreta ry Anaheim, California 92701
.U.S. Nuclear Regulatory Commission ATTN: Chief, Docketing & Service Charles E. McClung, Jr., Esq.
Branch Fleming, Anderson, McClung & Finch Washington, D.C.
20555 23521 Paseo De Valencia Suite 308A Laguna Hills, California 92653
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Lawrence J. Chandler Counsel for NRC Staff t
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