ML20027E716

Brief in Support of Exception to ASLB 820831 Initial Decision Granting Full Power Ol.Certificate of Svc Encl

ML20027E716
Person / Time
Site:	Diablo Canyon
Issue date:	11/08/1982
From:	Locke R PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8211150644
Download: ML20027E716 (11)

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UNITED STATES OF AMERICA [lIl .'h3 NUCLEAR REGULATORY COMMISSION 2 - $fl.! CRQ y BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD'~ 'l j "S. .n 3 . _

4 In the Matter of )

) Docket Nos. 50-275 O.L.

5 PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.

)

6 (Diablo Canyon Nuclear Power ) (Full-Power Proceeding)

Plant, Unit Nos. 1 and 2) )

7 8

9 BRIEF OF PACIFIC GAS AND ELECTRIC COMPANY IN SUPPORT OF EXCEPTION TO INITIAL 10 DECISION OF AUGUST 31, 1982 11 12 MALCOLM H. FURBUSH 13 PHILIP A. CRANE, JR.

RICHARD F. LOCKE 14 Pacific Gas and Electric Company P. O. Box 7442 15 San Francisco, CA 94120 (415) 781-4211 16 BRUCE NORTON 17 Norton, Burke, Berry & French, P.C.

3216 N. Third Street, Suite 300 18 Phoenix, AZ 85012 (602) 264-0033 19 ARTHUR C. GEHR 20 Snell & Wilmer 3100 Valley Center 21 Phoenix, AZ 85073 (602) 257-7288 22 23

- Attorneys for 24 Pacific Gas and Electric Company 25 26 DATED: November 8, 1982 8211150644 821108 PDR ADOCK 05000275PDR G

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 3 , , ,

In the Matter of )

4 Docket Nos. 50-275 0.L.

)

PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 O.L.

5

)

(Diablo Canyon Nuclear Power ) (Pull-Power Proceeding) 6 Plant, Unit Nos. 1 and 2) )

7 BRIEF OF PACIFIC GAS AND ELECTRIC COMPANY 8 IN SUPPORT OF EXCEPTION TO INITIAL DECISION OF AUGUST 31, 1982 9

10 I 11 INTRODUCTION 12 On August 31, 1982, the Licensing Board issued its 13 Initial Decision (" Decision") which authorized the issuance of 14 a full-power operating license for the Diablo Canyon Nuclear 15 Plant Units 1 and 2 subject to certain conditions. On 16 September 15, 1982, Pacific Gas and Electric Company ( PPGandE")

17 filed exceptions to certain rulings in that Decision pursuant 18 to 10 C.F.R. S 2.762(a). PGandE, along with the Staff,l/

19 requested the Appeal Board to toll the time for the filing of 20 briefs related to the exceptions until the Licensing Board 21 ruled on requests for clarification of the Initial Decision.2/

22 On September 13, 1982, the Appeal Board granted the 23 Staff's motion and tolled the period for filing briefs concerning 24 1/ The Staff had filed its exceptions to the Decision on September 10, 1982.

25

-2/ The Motions for Clarification of the Staff and PGandE 26 were filed on September 17 and 24, 1982, respectively.

1 exceptions until the Licensing Board ruled on the motion for 2 clsrification of the Decision.

3 On September ~ 24, 1982, and October 26, 1982, 4 respectively, the Licensing Board issued memoranda in response 5 to the Staff's and PGandE's Motions for Clarification. As a 6 consequence, the Staff, on October 4, 1982, requested leave to 7 withdraw its Exceptions 2 and 3 to the Initial Decision.3/

8 PGandE has also filed a request to withdraw its Exceptions 2, 9 3, and 4.4/ The net result is that PGandE is now only pursuing 10 its Exception 1 to the Decision dealing with a condition that 11 the Director of Nuclear Reactor Regulation secure Federal 12 Emergency Management Agency (" FEMA") findings on the adequacy 13 of the State Emergency Response Plan prior to issuance of a 14 full power license. PGandE submits that this condition is not 15 required since the interim FEMA findings satisfy the require-16 ments of 10 C.F.R. S 50.47.

II 17 ARGUMENT 18 The Interim Findings of FEMA on the 19 Adequacy of Off-Site Emergency Response Planning for Diablo Canyon Satisfy the 20 Requirements of 10 C.F.R. S 50.47 21 In its Decision, the Licensing Board ruled that 22 "...there is reasonable assurance that adequate protective 23 measures can and will be taken [on-site and off-site] in the 24 uvent of a radiological emergency [at Diablo Canyon]."5/

25 3/ This Request was granted on October 28, 1982.

4/ This Request was filed on November 8, 1982, h/ Initial Decision at 5.

' j l

1 However, later in the Decision, the Licensing Board required as 1

2 a condition to the issuance of a full-power license that 3

". . . the Director of Nuclear Reactor Regulation ["NRR"] must 4 secure FEMA findings on the adequacy of the State Emergency 5 Response Plan."5/ In response to Motions for Clarification on 6 this point, the Licensing Board issued its Memorandum of 7 September 24, 1982, opining that even though there is reasonable 8

assurance on the record that the State Plan is substantially 9 complete, Section 50.47 [of 10 C.F.R.] explicitly requires FEMA 10 findings of adequacy before an operating license ray be issued.

11 The Board went on to conclude that the interim findings of FEMA 12 "do not meet that requirement" and; hence, the record does not 13 contain the necessary findings.2/

14 PGandE disagrees with this conclusion for the following 15 reasons. 10 C.F.R. 50. 47 (a) (1) provides that:

16 No operating license for a nuclear power reactor will be issued unless a finding is

, 17 made by NRC that the state of onsite and offsite emergency preparedness provides 18 reasonable assurance that adequate pro-tective measures can and will be taken in 19 the event of a radiological emergency.

20 Section (a) (2) of 10 C.F.R. 50.47 goe's on to state that:

21 The NRC will base its findings on a review of Federal Emergency Management Agency 22 (FEMA) findings and determinations as to whether State and local emergency plans 23 are adequate and capable of being implemented....

24 In accord with these requirements, FEMA submitted to 25 NRC its interim findings on the adequacy of off-site planning 26 6/ Initial Decision at 218.

7/ Board Memorandum pages 1-2.

l ,

1 for Diablo Canyon in a Memorandum by Richard W. Krimm of 2 FEMA dated November 17, 1981. Those interim findings con-3 cluded that the_ local off-site emergency response planning l 4 capability for San Luis Obispo County provided reasonable 5 assurance for the protection of the public in the event of a 6 radiological emergency at Diablo Canyon. In these interim 7 findings and in testimony at the hearing, FEMA noted that in 8 the State of California, basic responsibility for the pro-9 tection of life and property rests with the County not the 10 State.E/ This statement was further buttressed by the Board 11 finding that San Luis Obispo County has been assigned lead 12 agency responsibility for developing and implementing local 13 emergency response in the vicinity of Diablo Canyon.2[

14 Moreover, the Board recognized that the areas of primary 15 State responsibility are, in fact, addressed in the State 16 Plan and consist of matters that do not deal with life 17 threatening situations. Finally, the Board also found that 18 while the State Plan was still incomplete, it was capable of 19 implementation.12/

20 From the foregoing, it is clear that whether or 21 not FEMA has formally reviewed and approved a final State 22 Emergency Response Plan for radiological emergencies, the 23 8/ Initial Decision pages 16, 95, and 96 citing Eldridge festimony at Tr. 12709-710, 12706-712, and 12708-12710, 24

-9/ Initial Decision page 98 citing Ness Testimony, 25 Tr. 12460-62.

26 10/ Id,. at 97. Eldridge Testimony Tr. 12682 at 5.

1 public health and safety is adequately protected. With these 2 factual conclusions adequately borne out in the record, it 3 does not appear necessary for the full-power license to be 4 conditioned upon NRR review of formal FEMA findings on the 5 adequacy of the State Plan in order to meet the requirements 6 of 10 C.F.R. 50.47. These requirements have already been 7 met with the FEMA finding of the adequacy of local off-site 8 emergency response capability.

9 The interpretative position taken by the Licensing 10 Board with regard to FEMA findings on the State Plan when 11 viewed against its findings of overall off-site emergency 12 response capability appear to exalt form over substance.ll/

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--11/ The Board, in its Memorandum of September 24, 1982, noted 24 that the FEMA review was to have taken place in July of 1982 and that those results should be submitted to the 25 Staff prior to the issuance of a full-power license.

However, the FEMA review findings have not been issued as 26 was expected by the Licensing Board.

i l

1 -

The Licensing Board's reading of 10 C.F.R. 50.47 2 does not take into account the provisions of the Nuclear 3 Regulgtory Commission Appropriation Authorization Act of 1980, 4 Public Law 96-295 (June 30, 1980), 94 Stat. 780, which in 5 Section 109(b) (1) directed the Commission to establish by 6 rule 7 (A) . . .

8 (B) a requirement that--

(i) the Commission will issue 9 operating licenses for utilization facilities only if the commission 10 determines that--

(I) there exists a State or 11 local radiological emergency response plan which provides 12 for responding to any radio-logical emergency at the 13 facility concerned and which complies with the Commission's 14 standards for such plans under subparagraph (A), or 15 (II) in the absence of a plan which satisfies the 16 requirements of subclause (I),

there exists a State, local, 17 or utility plan which provides reasonable assurance that 18 public health and safety is not endangered by operation of 19 the facility concerned, and (ii) any determination by the 20 Commission under subclause (I) may

, be made only in consultation with 21 the Director of the Federal Emergency Management Agency and other appro-22 priate agencies, and 23 (C) a mechanism to encourage and assist States to comply as expeditiously l

24 as practicable with the standards promulgated under subparagraph (A) 25 of this paragraph, 26 l l

1 As the foregoing language illustrates, Congress 2 established statutory guidelines for the NRC to issue an 3 operating license ". . . if there exists a state or local 4 radiological emergency response . . . which complies with 5 the Commission's standards" or in the absence of such a plan 6 . . . there exists a state, local, or utility plan which 7 provides reasonable assurance that public health and safety 8 is not endangered by operation of the facility concerned".

9 This statutory directive provides clear guidance as to what 10 action Congress expected of the NRC in this regard.

11 The intendment of Congress was then carried out by 12 the NRC in the provisions of 10 C.F.R. 50.47 (c) (1) which 13 provide that in the event the standards of 50.47 (b) are not 14 technically met an applicant will have the opportunity to 15 demonstrate that the deficiencies are not significant, 16 adequate interim compensating measures have been taken or 17 will be promptly or that there are other compelling reasons 18 to permit plant operation.

19 PGandE submits that the criteria of S 50.47 (c) (1) 20 have been met in that FSMA has found that the failure to 21 have a formal FEMA-approved State Emergency Response Plan 22 does not affect the off-site emergency response capability 23 for Diablo Canyon and that the public health and safety can 24 be adequately protected. Indeed the Licensing Board itself 25 has made such a finding as noted above.

26

f 1 III 2 CONCLUSION 3 ,

For the foregoing reasons PGandE urges this Board ,

4 to delete the condition from the Licensing Board's August 31, 5 1982 Decision which requires that the Director of NRR secure 6 a finding on the adequacy of the State Emergency Response 7 Plan prior to issuance of a full-power license for Diablo Canyon.

8 Respectfully submitted, 9 MALCOLM H. FURBUSH PHILIP A. CRANE, JR.

10 RICHARD F. LOCKE Pacific Gas and Electric Company 11 P. O. Box 7442 San Francisco CA 94120 12 ('15) 4 781-4211 13 BRUCE NORTON Norton, Burke, Berry & French, P.C.

14 3216 N. Third Street, Suite 300 Phoenix, AZ 85012 15 (602) 264-0033 16 ARTHUR C. GEHR Snell & Wilmer 17 3100 Valley Center Phoenix, AZ 85073 18 (602) 257-7288 19 Attorneys for Pacific Gas and Electric Company 20 21 22 By Richard F. Locke 23 DATEDr November 8, 1982 24 25 26 l

f

• UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-275

) Docket No. 50-323 Diablo Canyon Nuclear Power Plant, ) ~

Units 1 and 2 ~ )

)

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:

Judge John F. Wolf Mrs. Sandra A. Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo, California 93401 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O. Bright .

San Luis Obispo, California 93401 i Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission John Phillips, Esq.

Washington, D. C. 20555 Joel Reynolds, Esq.

Center for Law in the Public Interest Judge Jerry R. Kline 10951 W. Pico Boulevard - Suite 300 Atomic Safety and Licensing Board Los Angeles, California 90064 U. S. Nuclear Regulatory Commission Wachington, D. C. 20555 David F. Fleischaker, Esq.

P. O. Box 1178 Mrs. Elizabeth Apfelberg Oklahoma City C/o Nancy Culver Oklahoma 73101 192 Luneta Drive Arthur C. Gehr, Esq.

Stn Luis Obispo, California 93401 Snell & Wilmer Janice E. Kerr, Esq. 3100 Valley Bank Center public Utilities Commission Phoenix, Arizona 85073 l of the State of California l 5246 State Building Bruce-Norton, Esq.

350 McAllister Street Norton, Burke, Berry & French, P.C.

l S n Francisco, California 94102 3216 N. Third Street Suite 300 Mrs. Raye Fleming Phoenix, Arizona 85012-2699 1920 Mattie Road shall Beach, California 93449 Chairman Atomic Safety and Licensing Mr. Frederick Eissler Board Panel Scanic shoreline Preservation U. S. Nuclear Regulatory Commission Conference, Inc. Washington, D. C. 20555 4623 More Mesa Drive S2nta Barbara, California 93105

(

Chairman Judge Thcmas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Appeal Board W2chington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Sacretary - -

U. S. Nuclear Regulatory Commission Judge W. Reed Johnson .

Washington, D. C. 20555 Atomic Safety and Licensing Appeal Board Attn.: Docketing and Service Section U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Bradley W. Jones, Esq.

Office of Executive Legal Director Judge John H. Buck BETH 042 Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Appeal Board Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Richard B. Hubbard MHB Tachnical Associates Commissioner Nunzio J. Palladino 1723 Hamilton Avenue, Suite K Chairman San Jose, California 95125 U.S. Nuclear Regulatory Commission 1717 H Street N.W.

Mr. Carl Neiberger ,

Washington, DC 20555 -

Talegram Tribune P. O. Box 112 Commissioner John F. Ahearne S2n Luis Obispo, California 93402 U.S. Nuclear Regulatory Commission 1717 H Street N.W.

Harbart H. Brown, Esq. Washington, DC 20555 L2wrsnce Coe Lanpher, Esq.

Christopher B. Hanback, Esq. Commissioner Victor Gilinsky Kirkpatrick, Lockhart, Hill, U.S. Unclear Regulatory Commission Christopher & Phillips 1717 H Street N.W.

1900 M Street, N.W. Washington, DC 20555 Washington, D. C. 20036 Commissioner James K. Asselstine Byron S. Georgiou, Esq. U.S. Nuclear Regulatory Commission Lcgni Affairs Secretary 1717 H Street N.W.

I Govsrnor's Office Washington, DC 20555 State Capitol Sacramento, California 95814 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission 1717 H Street N.W.

shington, DC 20555 f

Ri'chirif 4.~Locke' Attorney for Pacific Gas and Electric Company Datos November 8, 1982 e