ML20011A600
| ML20011A600 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 10/21/1981 |
| From: | Mcclung C FLEMMING, ANDERSON, MCCLUNG & FINCH, GUARD |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8110290169 | |
| Download: ML20011A600 (14) | |
Text
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1 PHYLLIS M. GALLAGHER,.Esq.
00tME40 1695 West Crescent, Suite 222 USMC 2
Anaheim, CA 92801 I 26 Pi :10 3
CHARLES E. McCLUNG, JR., Esq.
Fleming, Anderson, McClung & Finch 4
24012 Calle.de la Plata, Suite 330 077lC? 0F SECTiW.
OCXGgt/G<;g,ii g / q< u Laguna Hills, CA 92653 5
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Attorneys for Intervenors
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UNITED STATES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION Mi YN pEFORE THE ATOMIC SAFETY AND LICENSING BOARD [ /
10 11 12 In the Matter of
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Docket No's, 50-361 OL
' ' ' ~
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50-362 OL 13 SOUTHERN CALIFORNIA
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EDISON COMPANY, et al.,
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BRIEF OF PROPOSED FINDINGS OF 14
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FACT AND CONCLUSIONS OF LAW IN (San Onofre Nuclear Generating)
OPPOSITION TO APPLICANT'S 15 Station, Units 2 and 3)
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ALTERNATIVE MOTION FOR OPERATING
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LICENSE FOR FUEL LOADING AND 16
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LOW POWER TESTING
)
17
)
18 INTRODUCTION 19 The Interven' ors respectfully submit that the Applicants have 20 failed to show that there exists sufficient emergency preparedness-21 surrounding the San Onofre Nuclear Generating Stat' ion (SONGS) to 22 protect public health and safety during a low power operation at 23 Unit 2.
Neither the Applicants nor the NRC staff have presented 24 any evidence as to actual risk of the low power.opeation of Unit i
25
.2.
The only evidence presented in this proceed ng has been what
.y 26
.the relative risk of operating a pressurike'dlwater reactor ("PWR")
27 like San Onofre Unit 2 would be at low power as compared to its 28 operation at full power.
The evidence shows that absolutely no Cfo$on
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,l 1
consideration was made of any factors pertaining to the actual 2
operation of Unit 2 at the site.
Intervenors submit that evidence 3
must be presented which will demonstrate that the actual risk 4
operation of Unit 2 during low power testing will be low enough 5
to justify the delayed implementation of the emergency planhing 6
standards cet forth in 10 CFR 50. 47 (b) (D through(16).
This has 7
not been done and therefore the alternative license for fuel load-8 ing and low power testing should be denied.
9 Specifically the continuing operation of Unit 1 and construc-10 tion of Unit 3 right beside Unit 2 may well multiply the risk of 11 the low power testing at Unit 2 such that increased emergency pre-12 paredness is. required.
No evidence has been presented to refute 13 this possibility.
14 ARGUMENT 15 I
16 IN ORDER TO JUSTIFY REDUCED EMERGENCY PLANNING 17 THE APPLICANTS MUST DEMONSTRATE THAT THE ACTUAL 18 OPERATION OF THE SAN ONOFRE UNIT 2 AT LOW POWER 19 GIVEN SITE SPECIFIC FACTORS SUCH AS A CONTINUED 20 OPERATION OF UNIT 1 AND CONTINUED CONSTRUCTION 21 AT UNIT 3 WILL ACTUALLY BE OF LOW RISK TO THE 22 SURROUNDING COMMUNITY.
23 The issue posed in the low power portion of this proceeding 24 is a simple one.
It is whether or not there exists sufficient 25 emergency preparedness to protect the public health and safety 26 during lcw power fuel loading and low power testing at SONGS Unit 1
27 2.
What standard is to be applied to determine what sort of 28 emergency preparedness is necessary?
Three standards have been.
t l
1 proposed.
2 The first standard is proposed by the Applicants.
Their 3
standard is adequate emergency preparedness under low power opera-4 tion of any PWR would be an operational on-site emergency plan 5
plus the ability to communicate with the off-site surrounding 6
iurisdictions.
Pilmer at 7.2 7
The Federal Emergency Management Agency (FEMA) testifying g
as part of the staf f's case proposes a second standard.
The g
standard of FEMA is simply that the state in which the nuclear 10 Power plant exists has an emergency plan which has received con-11 currence under the voluntary program where the Nuclear Regulatory 12 Commission (NRC) reviewed the state plans prior to the Three Mile 13 Island (TMI)' accident and prior to the ungraded emergency planning
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14 requireraents.
The on-site plan must also meet the pre-TMI require-15
'"e n t s.
TR. 11,310 ('Nauman).
16 The third standard is that proposed by the NRC staff in the 17 testimony of Mr. Lauben and Dr. O-Reilly.
That standard is essen-18 tially that no off-site plans are necessary at all so long as the 19 on-site capability to respond to emergency meets the pre-TMI plan-20 1
21 The issue reads:
"Whether there is reasonable assurance of adequate protection 22 to the health and safety of the public during fuel loading and low power testing, considering the risk to the public presented 23 by those activities and the level of emergency preparedness during those activities."
24 2
25 Written testimony will be cited.
" sears at "Nauman at
," etc.
Oral testimony vill be cited -
26 to the transcript with the notation of the person making the ~
statement.
27 28
' /
c
1 ning standards.
Lauben at 9.
2 None of the three overlapping standards
(" low power stand-3 ards") proposed by the Applicants and FEMA and the NRC for deter-4 mining what sort of emergency planning is necessary in the low i
5 power situation require that the Applicant demonstrate compliance
{
l 6
with 10 CFR 50.47 (b) (1) through (16), the upgraded emergency l
7 planning regulations which arose out of the TMI incident (the "New 8
Rules").
The assumption which underlies the low pawer standard is 9
that the New Rules of emergency preparedness are not required 10 under low power operation because under low power operation there 11 is a substantial reduction in the risk of accidents and the con-12 sequences of.any accidents that might occur.
13 Emergency plants will have to meet the New Rules before 14 full power operation of a plant is allowed but it is not necessary 15 that graded emergency plans be in place at the time of the low 16 power operation of the plant.
Thus, the plans must meet the New 17 Rules but the New Rules are timed to take effect before full power 18 operation and not before.
The decreased risk of low power opera-19 tion is said to justify the delay in the timing of the application 20 of the New Rules.
21 No separate standard for required emergency planning at low 22 power operation is set forth in the regulations.
Therefore, the 23 low power standards proposed by Applicant, FEMA and the NRC must 24 arise out of the flexible section 10 CFR 50. 47 (c) (1).
See In the 25 Matter of Pacific Gas & Electric (Diablo Canyon Nuclear Power Plant 26 Units 1 and 2) CLI-81-22, September 21, 1981 (the Additional Views 27 of Commissioner Ahearne at 2).
Section 50.47 (c) (1) provides that 28 an applicant need not meet the planning standards set forth in.
,l I
- 50. 47 (b) (1) through (16) if it can demonstrate "to the satisfaction 2
of the Commission that deficiencies in the plans are net signifi-3 cant for the plant in question, that adequate interim compensating 4
actions have been or will be taken promptly, or that there are 5
other compelling reasons to permit plant operation."
The low 6
power operation of a plant obviously is an obvious case where 7
deficiencies in the plans are not significant as provided in this 8
section because of the low risk.
But that low risk must be demon-9 strated for a particular plant in question.
It must be shown that 10 the risk is actually low for the plant in question.
11 It is long settled NRC law that there is an evidentiary 12 burden on the Applicant to prove its case for any such exemption 13 by " preponderance of the evidence".
See e.g.
Consolidated Edison 1/
Company of New York (Indian Point Nuclear Generating Station, Unit 15 3), CCH Nuc Reg Rptr S 30,027 (NRC 1975); D2ke Power Company.
16 (Catawba Nuclear Stations, Units 1 and 2), ALAB-355, CCH Nuc Reg 17 Rptr i 3,116 (1976); Consumers Power Company (Midland Plant, Units 18 1 and 2), ALAB-315, 3 NRC 101 (1976).
The magnitude of this burden 19 is influenced by the gravity of the matter in controversy.
Vir-20 ginia Electric and Power Ccnoany, (North Anna Power Station, Units 21 1 - 4), ALAB-256, 1 NRC 10 (1975).
In this proceeding where the 22 matter in controversy is the readiness of effective emergency 23 response action to protect public health and safety the applicant 24 has the burden of making the most conclusive showing fcr an exemp-25 tion from the regulation.
There is a burden on the applicant to 26 demonstrate by preponder a:
" evidence that an exemption is war-27 ranted and there is e for this Board to deny the Applicants
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28' requested license unlass tne Actter and spirit of the law are met.,
W E
1 See, Vermont Yankee Nuclear Power Corporation (Vermont Yankee 2
uuclear Power Station) ALAB-138 (1973)
(" reactors may not be 3
licensed unless they comply with all applicable standards").
4 The basis for the low power standards proposed by.the Appli-5 cants, FEMA and the NRC'is a generic study of the risk of low power 6
operation of any given plant versus the risk at full power.
Ac-7 cordingly, the NRC staff and'the Applicants in this proceeding 8
have put on expert testimony to show-why in a generic sense opera-9 tion of a PWR at low power will have less risk than operating a 10 PWR at full power.
Intervenors submit that this is a relative 11 risk assessment, while important, is not sufficient to guarantee 12 the public health and safety is protected around a given plant.
13 10 CFR 50. 47 (a) (1).
In addition to this relative risk assessment 14 an analysis must be made of the site in question to decide actual 15 risks.
A determination must be made whether or not there are 16 other factors which might increase the risk such that the New Rules 17 should come into effect.
The Intervenors believe that this requires 18 a review of not only the plant in questian, but the site in ques-19 tion to see whether the delayed timing of new standards makes 20 sense from a regulatory point of view in any given case.
21 SONGS Unit 2 is surrounded by two other plants, Unit 1 22 which is a licensed reactor which has been operating since the 23 early 70's and which has had significant problems in recent 24 months, and Unit 3 which is as yet unlicensed and which is still 25 under construction.
The Intervenors assert that any study of the 26 risk of operation of Unit 2 at low power must address whether or 27 not those risks would be increased by (1) the continued construc-28 tion of Unit 3 and (2) the ongoing operation of Unit 1..
1
'l It is clear that Unit 1 is not interconnected with Unit 2-in 2
a physical sense as defined in 10 CFR Section 100.11.
It is 3
equally clear that-there are certain interrelationships between 4
the two plants which could multiply the risk of operation of 5
Unit 2 at low power.
This Board.can take judicial notice of the 6
fact that Unit 1 is on the same site as Unit 3 and that in fact 7
the same' fire water system and switching system are used for both 8
plants.
In addition the testimony of Mr. David F.
Pilmer demon-9 strates that Unit 1 and Unit 2 have essentially the same emergency 10 p.lan.
Indeed the exhibit attached to Mr. Pilmer's testimony which 11 is found after Transcript Page 11243 is an NRC review-of the Unit 12 1 emergency plan which is taken as evidence that Unit 2 emergency 13 plan on-site meets MRC criteria.
In addition the emergency per-14 sonnel and operating personnel for the two Units are the same.
15 TR. 11,256.(Pilmer).
16 Unit 3 is interconnected with Unit 2.
The Board can take 17 judicial notice of the fact that construction of Unit 3 is ongoing.
18 Indeed there are numerous interconnected systems including control 19 room between Unit 2 and Unit 3.
It is thereft ce clear that the 20 issue of.whether or not the ongoing construction or unfinished 21 character of Unit 3 could increase the risk of an accident at 22 Unit 2 during the low power operation thereof must be addressed 23 in order to provide reasonable assurance of public safety.
It is 24 also clear that the overlapping geography and personnel between 25 Unit 1 and Unit 2 provide a narrowed margin of safety in that the 26 possibilities for dealing with any complications that were to arise 27 at Unit 2 during low power would be limited because of the ongoing 28 operation of Unit 1.
This might well entail shutting down Unit.
1 1 and.other matters.
TR. 11,256 (Pilmer).
2 II 3
THE EVIDENCE IN THIS PROCEEDING HAS NOT 4
DEMONSTRATED THAT THE OPERATION OF UNIT 2 5
AT LOW POWER IS ACTUALLY LOW RISK.
NO SITE 6
SPECIFIC FACTORS WHICH MIGHT MULTIPLY ThAT 7
RISK WERE CONSIDERED.
ACCORDINGLY THIS BOARD 8
CANNOT MAKE A FINDING ON THIS RECORD THAT THE 9
PUBLIC HEALTH AND SAFETY WILL BE PROTECTED 10 DURING THE OPERATION AT LOW POWER OF UNIT 2.
11 An analysis of the record in this case indicates that 12 neither the Appl _.i_c. ants, FEMA nor the NRC s taf f addressed any site
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13 specific factors which may have increased either the risk of an 14 accident during the low power operation of Unit 2 or the possible 15 consequences of any such accident.
In some cases the Board did not 16 allow questions into these issues.
In retrospect these were errors 17 which must be rectified in order to issue a license as requested 18 by the Applicants in this alternative proceeding.
19 Intervenors first addressed the issue of whether or not the 20 ongoing construction at Unit 3 would increase the risk of an ac-21 cident at Unit 2 during low power.
This question was put by Mr.
22 McClung to the Applicants' witness, Mr. Buttemer, at Transcript 23 page 11213.
This line of questions was objected to by the Appli-24 cants and the objections was sustained on the basis that it was 25 beyond the scope of the witness's testimony and the issue.
Inter-feel that this question must be addressed in order to 26 venors 27 determine the actual risk of operation of Unit 2 at low power.
28 With respect to the consideration of other site specific.
1 factors, _ including the ongoing operation of ' Unit 1, none of the 2
witnesses made any study of either the possible increase-in pro-
~3 bability of accident or the possible increase of consequences 4
which may be caused-by the ongoing operation of Unit 1 during the 5.
low power testing of Unit 2.
6 Mr. Buttemer, Applicants' expert witness on the risk of low 7
power operation, indicated that he made.no site specific analysis 8
of the probability of accidents at San onofre plant (TR. 11208) 9
.and he made no site specific analysis of the-consequences of any 10 particular sequence which might be postulated for the plant 11 (TR. 11208).
Mr. Buttemer looked only at the plant and did not 12 take into consideration anything outside of a hypothetical PWR 13 reactor.
He did not consider the existence of Unit 1 or Unit 3 14 in his analysis.
In fact he testified that his work on the rela-15 tive risks of operation of the plant at low power was " office 16 type analysis" and not field work in response to questioning by 17 the Board.
TR. 11215. (Buttemer).
18 The Applicants' witness, Mr. Pilmer, who was to testify about 19 the need for emergency planning during low power al'so did not make 20 any site specific analysis of the probability of accidents at the 21 plant.
TR. 11249 (Pilmer).
Although Mr. Pilmer indicates in his 22 testimony that he did think about the possible site specific con-23 sequences of accident sequences he did not take into consideration 24 the possible fision releases at Unit 1.
TR. 11264, 11273 (Pilmer).
25 The staff witnesses also did not take into account these 26 considerations.
Mr. Nauman from FEMA testifying as part of the 27 staff's case indicated that the FEMA review consisted simply of 28 whether or not there was a State of California plan which had
_9_
I received NRC concurrence.-
He indicated that this was essentially 2
a file checking procedure.
TR. 11311 (Nauman) ; see also 11356 TR.
3 (Grimes).
4 "The. NRC'.s expert witnesses in risk analysis, Mr..Lauben and '
5 Dr.
O' Reilly, indicated that 'they did not consider any site' specifi:
6 aspects with respect to their assessment-of.the risk both proba-7 bility wise and consequence wise of the low power operation ~of.
8 Unit 2.
TR. 11326.
They testified additionally that they did not g
consider the operation of Unit 1.
Id. - The NRC team indicated 10 they.just performed a relative risk analysis' and that -it was not 11 necessary to do any site specific analysis because they were not 12 looking for actual risks.
TR. 11327 (Lauben).
13 With respect to the other two NRC witnesses, Mr. Sears and 14 Mr. Grimes, Mr. Sears indicated that he relied solely on Mr.
15 Lauben and Dr. O'Reilly in forming his conclusions with respect 16 to risk.
TR. 11349.
17 Mr. Grimes indicated-(TR. 11343) that the NRC position was 18 essentially a generic comparison at the risk of low power opera-19 tion of a plant versus the risk at full power.
Intervenors at-20 tempted to question whether Mr. Grimes thought it would be neces-21 sary to consider the additional risks which might be posed by the 22 operation of an operating reactor at the same site as the low 23 power testing of Unit 2.
TR. 11345.
That line of questioning 24 was objected.to by the staff and the Applicants and the objection' 25 was sustained on the basic that-it was beyon'd the scope of the 26 issue.
TR. 11346.
27 It is clear from a record in this proceeding that the various 28 expert witnesses for the Applicants, the NRC staff and TEMA did.
m-.-
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1 not consider any site specific aspects which would cither increase 2
the risk of an accident at San Onofre Unit 2 during low power or 3
which might increase the consequences of an accident at San Onorre 4
Unit 2 during low power operation.
Intervenors questions in this 5
regard were wrongfully excluded by the Board.
Intervenors would 6
therefore submit that it is impossible for this Board to make a 7
finding that there is reasonable insurance that the public health 8
and safety will be adequately protected at San Onofre and sur-9 rounding San Onofre site.
10 III 11 THE EMERGENCY PREPAREDNESS SURROUNDING THE 12 SAN ONOFRE NUCLEAR GENERATING STATIONS DOES 13 BOT MEET THE STANDARDS SET FORTH IN 10 CFR 14 50.47(a).
THERE IS NOT REASONABLE ASSURANCE 15 THAT THE PUBLIC HEALTH AND SAFETY WILL BE PRO-16 TECTED IN THE EVENT OF A RADIOLOGICAL RELEASE 17 WITH OFF-SITE CONSEQUENCES.
18 The Applicants have made no attempt to argue the status of 19 the off-site emergency preparedness pursuant to their low power 20 motion.
Intervenors will therefore only briefly point out that 21 at the present time the status of emergency preparedness off-site 22 does not meet the standards of the New Rules.
As determined by the 23 FEMA findings (Staff Exhibit 11), the status of off-site eanergency 24 preparedness is not capable of being implemented.
The Applicants 25 have proposed an action plan to remedy these deficiencies but 26 that action plan has not been completed, in significant respect.
27 Intervenors are particularly concerned about the capability of 28 off-site agencies to monitor radioactive release and to assess the.
I consequences thereof and to take coordinated-and effective pro-2 tectita action response.
This capability has not yet been de-3 monstrated and it is crucial to effective emergency planning.- Ine 4
deed the Applicants admit this on the record by proposing to meet 5
these standards thrcugh the exemption provided. in 10 CFR 50.47 (c) (1) 6 They will attempt to show in their hrief and findings of fact in 7
th full power case that these regulatory standards are satisfied-8 by the on-site capability.
Intervenors submit that this has not 9
been done and thus there are significant deficiencies in the plans 10 which impact upon the public health and safety such that the Board 11 cannot make a finding of adequacy at tnis time.
12 CONCLUSION r
e,mm -
13 In conclusion the Intervenors respectfully cubmit that the 14 rationale which underlies postponing of the timing of the compliance 15 with the upgraded emergency planning standards contained in the 16 regulations 50.47 et seg. from the low power stage to the full 17 power licensing stage do not apply in the San Onofre case.because 18 there is an existing and ongoing reactor at the site.
Accordingly, 19 it is clear that the upgraded emergency standards should be compliec.
20 with before a new reactor is licensed at this particular site.
The 21 Applicants have not even attempted to demonstrate such compliance.
22 The low power license should therefore be denied at this time.
23 24 Respectfully submitted, 25 PHYLLIS M.
GALLAGHER, Esq.
CHARLES E. McCLUNG, JR. of 26
- Fleming, derson, McClung & [hnct 27
/
By si 28 s,
Charles E. McClung, Jr.
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00CKETED USNRC.
N ET 26 P1:10 UNITED S"ATES'Or AMERICA N
NUCLEAR REGULATORY COMMISSION
' OFFICE 0F SECRETARY 00CKETING & SERVICE BEFORE THE ATOMIC SAFETY AED LICENSING BOARD BRANCH-In the Matter of
)
}
Docket Nos. 50-361 OL SOUTHERN CALIFORNIA EDISON COMPANY,
)
)
)
(San Onofre Nuclear Generating Station,)
Units 2 and 3)
)
CERTIFICATE OF SERVICE' I declare that I served the attached BRIEF OF PROPOSED FINDINGS OF PACT
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AND CONCLUSIONS OF L'AN^IN OPPOSITION TO APPLICANT'S ALTERNATIVE MOTION FOR OPERATING LICENSE FOR FUEL LOADING AND LOW POWER TESTING in said cause by placing a true copy thereof in the United States ail at Laguna Fills, California addressed as follows, asterisks indicate-service by Federal Express:
- James L.
Kelley, Esq., Chairman
- David R.
Pig o tt, 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 & Sutcliff@
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, Esq.
P.O.
Box 247 Daniel K.
Spradlin Bodega Bay, California 94923 Rourke & Woodruff 1055 North Main Street, #1020
. Santa Ana, California 92701
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,Mrs. Elizabeth B. Johnson, Richard J.
Wharton, Esq.
Administrative Judge University of San Diego Oak Ridge National Laboratory School of Law Alcala Park P.
O. Box X, Building 3500 San Diego, California 92110 Oak Ri?.ge, Tennessee 37830 Mrs. Lyn Harris Hicks Janica E. Kerr, Esq.
GUARD J. Calvin Simpson, Esq.
3908 Calle Ariana Lawrence O. Garcia, ESg.
San Clemente,-California 92672 California Utilities Commission 5066 State Building A.
S.
Carstens San Francisco, California 94102 2071 Caminito Circulo Norte Mt. La Jolla, California 92037 Charles R. Kocher, Esa.
James A.
Beoletto, Esq.
- Richard K. Hoefling, Esq.
Southern California Fdison Company Lawrence J.
Chandler, Esq.
4244 Walnut Grove Avenue Donald Hassel, Esq.-
Rosemead, California 91770 U. S. Nuclear Regulatory-Commission David W. Gilman Office of the Executive Robert G.
Lacy Legal Director San Diego Gas & ElecfrIE' Company Washington, D.~C.
205,55 P.
O. Box 1831 San Diego, California 92112 Atomic Safety and Licensing
_ Appeal Board Panel Phyllis M.
Gallagher, Esq.
U.
S. Nuclear'Regulat'ry 1695 West Crescent Avenue Commission Suite 222 Washington D. C.
2055S Anaheim, California 92701 Secretary Robert Dietch, Vice President U. S. Nuclear Regulatory Comm.
Southern Edison California Company Attn:
Chief, Docketing &
P.
O. Box 800 Service Branch 2244 Walnut Grove Avenue Washington, D.
C.
20555 Rosemead, Californic 91770
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Audrev P.
Stellings
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