ML20010F953
| ML20010F953 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/11/1981 |
| From: | Brown H CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20010F955 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8109150150 | |
| Download: ML20010F953 (12) | |
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UNITED STATES OF AMERICA CCC;tITED NUCLEAR REGUIATORY O@ MISSION j3 t;s:;n0 h). SEP..l.ij9M >
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BEN RE TEE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter or.
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PACIFIC GAS AND ELETRIC COMPANY
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Docket Nos. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power Plant,
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Unit Nos. 1 and 2)
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- DTICN OF GOVERNOR EGUND G. BROWN JR.
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D ],JDfg mR STAR cF THE tatL'ff/ENESS OF THE DIABr4 CANYON FJf; LOADING AND IfM POLER 8.
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OPEFATING LICESSE b")/
7 Pursuant to 10 C.F.R. S 2.788, Governor Brown, representing th California, moves this Appeal Board to stay the July 17, 1981 Partial Initial Decision of the Licesning Ecard that authorized issuance of a license for fuel loading and low power operation of Diablo Canyon. The Governor requests the stay to rerain in effect until administrative appellate reviea is completed on the seismic, security, and low power doisions-1/
which provide the basis for the Licerse.
l The Gsvernor satisfies the Section 2.788(e) criteria for a stay:
There is a strong probability that the Governor will denenstra*a on appeal that the License was illegally issued. The Licensing Board authorized operation despite overwhelming evidence that ro emergency preparedness exists, thereby violating 10 C.F.R. S 50.47. The Board also erred in denying the Governor an opportunity to litigate TMI-related :ontentions; in failing to direct the Staff to prepare an environmental impact appraisal of PG&E's low power "asting program; i
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ALAB-644, June 16, 1981, petitions for NRC teview pending; AIAB-653, Septem-ber 9,1981, appeal or petition for review to be filed upon the Comission's i
clarification of applicable revies procedures; Licensing Board Partial Initial Decision, July 17, 1981, apoeals pending.
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8109150150 810911 PDR ADOCK 05000275 0
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i and in failing to take cognizance of the critical fact that ruither PG&E nor the Staff gave any consideration to the complicating effects of an earthquake on emergency preparedness and response during low power operations.
We Gowrnor will be irreparably injured by denial of a stay. Unless a stay is granted, PG&E will conduct its low power program, thereby exposing the citizens of California to the unreasonable risks of an operating reactor which does not emply with applicable safety require-ments.
rh, such operation would effectively :: cot the Goverrar's opportunity to contest the Licerse on appeal, because by the time the Governor obtairs review and reversal of the License, PG&E will haw conpleted its testing program. A rettrn to the pre-existing status quo w:Lil therefore be impossible.
PG&E will not be harme by a stay. W e stay will only briefly postpone low power testing until appellate review is ccrplete. We stay will thus ensure preservation of the status qto - an uncontaminated facility -
if the Licersing Board's decision is reversed. PG&E will not be harmed by such postponenent because there is no need for PG&E tc conduct low j
power testing until such time as a full power license is imninent. A
. firal NBC decision on PG&E's full power license will not be made until
" arch, June,1982, thus obviating any need for testing at this time and ersuring that PG&E will not be hamed by a stay.
Ma public interest heavily favors issuance of a stay. S e Diablo Canyon i
proceeding has generated unprecedented public concern generally because serious seismic, security, emergency preparedress, and 24I-related issues have not been satisfactorily addressed by the NPC. Under the circumstances, there is a mmpelling need to prevent premature operation of the plant so that the Ccmnissioners will have a timely opportunity to confront the
- erits of the serious substantive issues.
I.
B ere is a Strong Probability that Governor Brown will Prevail on tue Merits.
In the "Brief of Governor Edmund G. Brown Jr. on Appeal of the Licensing Board Partial Initial Decision of July 17, 1981," filed with this Appeal Board on September 2, 1981, the Governor de:tonstrated that fuel loading and low power operation were not 1
j Justified and would be illegal because:
(1) emergercf preWuess at Diablo Canyon 1
does not ccx: ply with Section 50.47; (2) the Licensing Board erroneously denied the.
Governor the right to litigate relevant 24I-related mntentions; (3) no consideration was given to the ccrplicating effects of an ea.We on mergency preparedness and l
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4 o response; ard (4) the Staff failed to prepare tie necessary envircr.mntal analysis of PG&E's proposed low pcmr testing program. S e Governor will not repeat those arguments at length herein but, instead, smtrarizes below the Liceraing Board's errors and respectfully refers this Appeal Board to the Governor's Septerrber 2 Brief for the detailed discussion.-2/
i 1.
Emcreency Precaredness.-3/
me Ccrmitssion's emergency preparedness regula-tions require that there be a deacnstrated onsite and offsite capability to respond effectively to a radiological emergency at Diablo Canyon.
Indeed, Sec. hon 50.47(a) (1) precludes issuance of any, operating license - without distinction as to low pcwer i
or full power - unless the NEC finds that both onsite and offsite preparedness provide reasonable assurance that " adequate protective measures can and will be taken in the event of a radiological emergency." (Drphasis supplied.'
The evidence developed at the Diablo Canyon low power hearing shows conclusively that no integrated onsite and offsite resconse cacability exists. Thus, emagency planning and preparedness for fuel loading and low power operation of Diablo Caryon do not satisfy the NPC's regulations for the follcwirs reasons:
(a)
San Luis Obirco County (the " County") does not have an implenented emergerry respo.,se plan, and thus the County has no capability to resp nd to a radiological emergency as required by Section 50.47.
The County's 1976 plans were never impimented; were rendered cbso-lete by the DII accident; and indeed were deliberately " shelved" by the County follcwing that accident. The County's plan and procedures are now still being developed. 4_/
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This proceeding is unusual because the Governor has briefed che Licensirs. Ecerd's errors to the Appeal Board prior to the time of filing a stay motion. Tne reason is that the Ccrmtssion, by Order dated July 22, deferred filirg of stay notions until after the Appeal Board issued the security decision. Accordingly, to avoid repetition of argments already before this Appeal Board, the Governor has not receated the detailed arguments set forth in his Septercer 2 Brief.
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See Governor's September 2 Brief, pp. 11-43.
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E.g., Tr.10,917-20 (Jorgensen).
_4_
(b)
The ccrbined onsice and offsite emergency respmse capabilities at Diablo Canfon do not satisfy even one of the 16 Planning Standards of 10 C.F.R. S 50.47 (b). 5f (c)
There is no demonstrated means of *@ any protective actions, in-citriing notification or evacuation, in the rtgged Montana de Oro State Park located less than two milec frcm Diablo Canyon.
6f (d)
Neither PG&E nor the Staff gave consideration to the potentially ccm-plicating effects of an earthquake of any proportion on energer.cy preparedness and response during icw pcwer operation, despite che obvious fact, admi'.ted on the record even by PG&E, that such an earth-quake certainly would cceplicate emergerof respnse. 7/
(e) hhile the " risk" during low power operation is less than the risk during full pcuer operation, effective emergency preparedness still is recuired at least within the s2x mile low population zone ("I2Z"). 8/
@a failure of the County to have any inplenented enumgency respnse capability ai. all - either inside or outside the LPZ -- and the other documented deficiencies in energency preparedness at Diablo Canyon precitrie a findig of the requisite preparedness within the LPZ or anywhere else in the County.
The Licensing Board effectively ignored the foregoing facts, each of which the Governor had placed clearly before the Board. Therefore, the Board violated the law:
It failed to apply the NRC's own. @ tions, particularly 10 C.F.R.
SS 50.47(a)-(b) and 50.47(c) (1), thus violating the Adru.nistrative Procedure Act ("APA"), 5 U.S.C. S 551, et. s_eq., the Atomic Energy Act, 42 U.S.C. S 2011, et. seq., judicial precedent, and NRC Case law.
It failed to rule in conformity with the evidence of record, thus violatim the evidentiary standeds applicable to initial licensing l
decisions under the APA, the Atomic Energy Act, judicial precedent, and NRC case law.
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E.c., Joint Intervenors' Ex. 111.
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See Governor's Sept. 2 Brief, pp. 30-33.
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E.g., Tr.10,878-80 (Shiffer); 11,060 (Sears).
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The Licensing Board found the 6-mile LPZ to be a proper zone for emergency l
preparedness, and even PG&E recor: mended the LPZ. Partial Initial Decision,
- p. 51,'J 131; Tr.10,856-57 (Brunot) ; 10,838 (Shiffer).
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-5 It failed to confront - indeed, in many instances, even to acknowledge -
the evidence and argtraents presented by the Governor and the Joint Inter-venors, thus violating the APA, the Atomic Energy Act, judicial precedent, aM NRC case law.
It failed to provide foundations and reasons for its findings and con--
clusions, thus-violating the APA, the Atomic Energy Act, judicial pre-cedent, and NRC case law.
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2.
'IMI-Related Contentions.~
The Licensing Board denied the Governor and Joint Interverers a hearing on several critical 'IMI-related contentions, primarily because such contentions allegedly were not "directly related" to a specific NUREG-0737 requL%:nent.-10/
However, these contentions focused on the very same safety concerns as the items in htRH3-0737. Under the Ceanission's explicit guidance -
i.e., une Revised Statement of Policy, dated December 18, 1980-11/
and CLI-81-5, dated April 1, 1981~-12/
- such contentions clearly were proper and admissible. The Board therefore erred in rejecting those contentions.
3.
Environmental Impact Accraisal.--13/
The G:vernor demonstrated *w the Licensing Board that the Staff,. under the regulations of 10 C.F.R. Part 51, is required to pre-pare an environmental analysis of PG&E's proposed low powr testing program before the NPC renders its licensing decision. The existence of the N11 power environmental impact st.'tement ("EIS") in this proceeding is factually and legally irrelevant to that l
9/
See Governor's Sept. 2 Brief, pp. 43-56.
l 10/
See Prehearing Conference Order, February 13, 1981, pp. 13-14. The Licensi.g Board also ignored clear evidence of PG&E's failure to satisfy NU?DG-0737 Item l
II.F.2, "Instrirentation for Detection of Inadequate Core Ccoling." Thus, the Board granted su:rary disposition of this issue solely on the basis of PG&E's prmise to install a water level indicator system prior to fuel load. The Bord failed even to address the Governor's evidence that PG&E's system was inadequate.
l See Goverror's Sept. 2 Brief, pp. 53-56.
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45 Fed. Reg. 85,236 (1980).
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CCH Nuc. Reg. Rptr. 1 30,581 '1981).
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See Governor's Sept. 2 Brief, pp. 56-64.
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.m.,
Staff responsibility. IMeed, Section 51.5(b) (3) requires specifically that for icw power option the Staff must prepare an EIS, or t'inimally an environmental i;: pact apprri,a1 ("EIA"), separate and distinct from the regtured full power EIS. The Licensing Board, contrary -to these explicit regulatory requirments, nevertheless ruled that no EIA need be prepared--14/
II. The Goverms will be Irrecarably Injured if a Stay is Denied.
A stay must be granted to avoid irreparable injury. First, the Licensing Board's July 17 decision exrcses the citizens of California to the risk of Di.91o Canyon Operation without sny preparedness to respord to the radiological mnsequences of an accident.-15/
Under the NIC's regulations, California's citizens cannot be forced to bear that risk.
Indeed, the experierce of tae citizens near the BC plant in March 1979 rakes clear once and for all that local populations should not be requimd to bear the risk of a nuclear accident without adequate emergency 14/
Prehearing Co:*erence Order, pp. 3-7.
The Governor sulrtits that an EIA, if prepared in this proceeding, would denenstrate: (1) that there is no need for PG&E to conduct its low tcwer testing program in advance of issuance of a full pcwe; license, if ultimately granted; (2) that the costs of PG&E's croposed pre-l mature icw pwer testing, both environmental and economic cos*a, substantially l
outmigh the benefits of such tecting; and (3) that the serious potential impac*a resulting frcm PG&E's proposed low power testing program require consideration of alternatives that would create fewer environmental costs (including the obvious alternative of merely postponing low power testing until the seismic, security, and full power issues are resolved with finality by the Comissioners).
No persuasive fac ual or lecal arguments to the aantrary have been rade by the Staff or PG&E. Irdeed, the Licensing Board provided no cost-benefi t aralysis or other reasoning that would cast doubt upon the Governor's position. If any conclusions contrary to that position could be arawn, the proper place for the underlying aralysis would have to be an EIA, which was intended by *he regula-tions to cover precisely the type of situation presen*ad herein.
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The risk associated with a serious low power accident may be severe, as doctmanted l
5 in the attached Affidavit of Richard B. Hilbard. See Exhibit I hereto.
, preparedness. 'Ihe NBC's post-24I emergency preparedness regulations codify the primacy of safety that was articulated by tM Suprene Court 20 years ago:
[T]he public safety is the first, last and a permanent consideration in any decision on the issuance of a con-struction permit or a license to operate a nuclear facility. Power Peactor Co. v. Electrici,ans, 367 U.S.
396, 402 (1961).
Second, if the stay is denied, the Goverror will effectively be barred frcm an optertunity to preva2.1 on,the merits of his appeals.
Indeed, if the stay is denied, PG&E will load fuel and cc$'olete its entire testing program within a ::Eximn_ clf 100 days, perhaps as few as 50 days.
See Affidavit of Richard B. Hubbard, Exhibit 1 hereto. The Governor, however, will not have received Acceal Bcard, much loss Ccrnission, decisions on his appeals within such 50-100 days. Accordingly, if the stay is denied, PG&E will complete its testing program witile the 'bvernor is lef t to pursue a meaningless administrative appeal. The reason is that the very activity which the Governor contests on appeal - low power operation - will already have been performed by PG&E. There will thus be no means for this Appeal Board to restore the pre-existing status quo requested by the Governor. Rather, the A peal Board will be faced with the fait accompli that operation has occurred and that systems, structures, and components of the facility will be seriously contaminated. See Affidavit of Ricilard B. Hibard, Exhibit 1 hereto.
The courts have recognized that the mooting of appellate review under circum-stances which preclude restcration of the status quo constitutes irreparable injury justifying issuance of a stay. "The sole purpose of a stay is to preserve the status quo pending an apoeal so that the appellant may reap the benefit of a potentially
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meritorious appeal." ~ In Public Utilities Ccmnission of District of Columbia v.
Cacital Trarsit Co., 214 F.2d 242 (D.C. Cir.1954), the Public Utilities Ccanission had instituted an investigation of Capital Transit, and sotrght an injunction against Capital's proposed payment'of a dividerd and rederption of certain bonds until the investigation was ccrplete. A preliminary injunction was denied by the district court, and the Ccmnssion appealed and applied for an injunction pending appeal.
Explaining its decision to grant the injunction pending appeal, the Court stated:
me first [ reason for allowing the injunct.icn] was that otherwin the case would have become nr.ot and our juris-diction to review the order of the Distric' Court would have been desi".cyed. We would have been confronted with a fait acccr:nli because of the proposed timing of the bond rece::ption and dividend program, The appeal must be in-substantial indeed to cause us to stand aside and let the mere passage of a few days oust our jurisdiction of an appeal which has been brougnt to us.
_I_d at 245.
d 2 e U.S. Supreme Court expressed much the same opinion in Federal Trade Comnission v. Dean Foods Company, 334 U.S. 597 (1966). 'Ihere the PIC sought to enjoin the merger of tw companies pe:xiing its review of the legality of the merger. The Comission argued that if the merger were allowed to take place, one of the acr:panies would be dismantled and cease to exist, so that the Ccanssion would 1:e unable to devise any effective remedy if it prevailed on the me.rits. Pavic+iing a series of I
decisions on the Erwer of the Courts of Appeals to issue this type of injunction, the Court concluded:
mese decisions furnish ample crecedent to succort jurisdiction of the Court of Appeals to issue a preliminary injunction pre-venting the censumation of this agreement upon a showing that an effective remedial order, once the merger was inplemented, j
would otherwise be virtually inpossible, thus rerdering the l
enforcement of any final decree of divestiture futile.
_Id,. at i
605.
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Paed v. Rhodes, 472 F. Supp. 603, 605 (N.D. Chio 1979).
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Similarly, in Jordan v. Woke, 463 F. Supp. 641 (E.D. Wis.1978), plaintiffs sought and received injunctive relief relating to their claims of iradequate visita-tion rights and overcrowding in a county jail. The defendants : roved *a stay the injunctive relief pending appeal en the merits. The court stated explicitly that it did not believe the defendants had der:enstrated substantial likelihood of success en the nerits. Mcwever, the court still granted the stay:
I am persuaded that the defeMants notion should te granted.
The injunctive relief granted by this murt will in effect
.@e the defendants to make substantial experditures and take other remedial acticns within the next sixty days.
-It is unlikely that the plaintiffs or this court would have any way of cxcensating the defendants or restoring the status cuo should the defendants prevail on their apoeal. Thus, the defendants m uld be effectively denied their richt to acceal this case, if th3ir acclication for a stay is denied.
Id.
at 642 (e.Tphasis supplied).
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In the Diablo Canyon proceeding, there will be ro means of restoring the status qto if a stay is denied and the Governor subsequently prevails on appeal. The contested activity - Icw power operation - will have already occurred, while the citizens of California will be subjected to unreasonable risk and the Governor's right to be heard on the merits of his appeal will be mooted. Only by issturce of
- t. e requested stay can the otheraise inevitable u reparable injurf be prevented.
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Other cases establish the sane fundamental principal. See, e.g., Zenith Radio Corp. v. United States, 505 F. Supp. 216 (Int. Trade 1980) (irreparable injurf l
results from nooting plaintiff's right to judicial review); National Wildlife Federation v. Andrus, 440 F. Supp.1245 (D.D.C.1977) (irreparable injury re-sults because construction of pcwer plant would preclude consideration of reasonable alternatives); Perez v. Wainarict.t, 440 F. Supp.1037 (D. Fl.1977),
rev'd en other grounds, 594 F.2d 159 (5Ei Cir.1979), vacated,100 S. Ct. 3032 (1980) (if stay not gran*d, respondent would be denied cpoortunity to appeal decision on the merits); Dal:ro Sales Co. v. Tysons Corner Regional Shopping Center, 308 F. Supp. 989 (D.D.C. 1970) (stay pending appeal granted since denial w:uld allow rental of prcperty which plaintiff contests).
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III. The Grant of a Stay will not Ihrm PG&E.
f The grant of a stay will postpone fuel loadix, and icw power tasting of Diablo Canyon only until administratim review of pendi g appeals has been completed (assuming, arguendo, that PG&E ultimately prevails).
If the Govern r prevails and such appellate review results in reversal of the License, then the status quo will be protected against the adverse consequences of preature fuel loadi:q and op m tion.
The postponement of fuel loading and low power cperation will rot ham PG&E.
Low power testing is beneficial to PG&2 cnly as a step toward full power operation.
However, full power operation of Diablo Canyon cannot realistically be expected be-fore March-June 1982 and that, of course, assumes arguendo that PG&E will prevail on
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all full power issues peMing before the Licensing Board.
Accordingly, a postpone-l 18/
The Licensing Board has ruled that a further hearing must be held on the remaining full power issues. Licensing Board Manoratum and Order, Aug. 4, i
1981. hhile the Board has not set a date for the hearing, it is clear that l
it will not be before very late 1981 or early 1982.
Indeed, the pri:rary issue remaining to be litigated is full power emerge:ry preparedness and the parties still do not even have PG&E's revised emergency plan for full power, a revised San Luis Cbispo County plan for full power, a PG&E analysis of the cccolicating effects of an earthquake, or FEMA's "fiMings". The PG&E plan and earthquake aralysis are exmeted soon but it is still uncertain when a revised County plan and FDR findings will be corpleted. These are all required before a hearing can even be scheduled, since parties will need discovery on these vital dccuments once they become available.
Assuming the hearing is in Decerter 1981 and allowing the nor al 55 days for briefing after conclusion of the hearing, A decision by the Board cannot be expected before March cr April 1982. Under Section 2.764 (f) (2), that decision will autcratically be stayed for 30 days. Thus, an April-June 1982 date for a full power license is realistic as the earliest date for full power operation,.
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ment of Icw pcwer operation until early 1982 - by 'ahich time the perding 19/
appeals will be resched
- will still pe.rmit PG&E to conduct its testing program prior to a realistic full power startup date.
IV.
The Public Interest Supoorts Issuance of a Stay.
W e Diablo Canyon proceeding is unicue in NRC history.
It invohes t'.la first reactor to be dangerously missited - less than 3 miles from a major earthquake fault. PG&E's siting' mistake, shared by the Staff, caused PG&E to undertake a retrospecti'a " reanalysis" of the Diablo Canyon design. 2e Appeal Board at one; point characterized this reanalysis as post hoc and as using untested and previously unproven theoretical bases, *hich in certain 20/
cases were less conservative than would be used for an original design.-
The p. Wing also is the first contested case that addresses the NPC's upgraded Part 73 security regulations, the first contested emergency prepared-ness proceeding under the post-TMI Section 50.47 to reach the Appeal Board, ard the first case to litigate the scope and effect of the NPC's post-BiI policy staterent.
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The seismic, security and low ocwer appeals can certainly be resobed by March 1982. The appeals of tne July 17 Licensing Scard Decision will be fully briefed by early October 1981. The seismic a:ri security appeals, if authori::ed by the Ccmission, should similarly be briefed by late Oc W r or early November 1981. This will leave three to four nonths for decision on these ratters before low pcser testing becones an item in the
" critical path" of full power operation.
_2_0_/ AIAB-519, 9 N.R.C. 42 (1979).
9 h
The seismic, security, energency pre-A.ess, and mI-related issues pre-sented in this casa raise fundamental questions of first impression that directly affect the wl'-being of the public. A decision by this Appeal Board .enyi.ng the regrsted stay would inappropriately render Diablo Canyon to the status of a ccrcon-place administrati;e proceeding. It is not such a proceeding, and the public interest aagues compellingly for caution by the NIC.
Indeed, there is no basis for dis ibard i
to deny the Goverror the opportunity to exhaust his adm.tnistrative appeals before the Diablo Canyon plant is permitted to operate. 'Ihe NPC.
exercising a prcettptive power ov2r the State of California in this proceeding, and both Sect. ton 274 of the Atomic Energy Act and Federal-State ccmity require that this Board be judicious.
A stay is therefore essential.
Paspectfully submitted, Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramnto, California 95814 p<
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.l-m Herbert H. Brown Lawrence Coe Iar@er HIII, CHRIS'IOPIER AND PRTU.TPS, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 l
Attorneys for Governor Browr of the State of California September 11, 1981 e
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