ML20031E081
| ML20031E081 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/07/1981 |
| From: | Oglesby D PACIFIC GAS & ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8110150073 | |
| Download: ML20031E081 (66) | |
Text
{{#Wiki_filter:_ _ _ _ _. tilw 4 occKEFJ usua0 g ~ 2 OCT 8 1961 > b ([ omaetcega my -2 Cockd4 AAU D t.? g, UNITED STATES OF AMERICA O NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l In the Matter of ) ) PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 0.L. C011PANY ) 50-323 0.L. ) (Diablo Canyon Nuclear Power ) Plant, Units 1 and 2) ) (Low Power Proceeding) ) 8A e .9) . sses b PACIFIC GAS AND ELECTRIC COMPANY'S .s. s) BRIEF IN OPPOSITION TO JOINT INTERVENORS' / y A> ExCten 0NS 10 rut t0w P0wER oECISION 3 9 90 9 60\\ 8110150073 811007 PDR ADOCK 05000275 G PDR
s 1 TABLE OF CONTENTS 2 3 4 Page 5 I INTRODUCTION 1 6 II ARGUMENT 2 7 A. Summary Of PGandE's Position. 2 8 B. The ASLB's Rejection Of Joint Interve-nors' Purportedly TMI-Related Conten-9 tions Was Proper Under The Commission's Decestber 18, 1980 Revised Statement Of 10 Policy. 6 11 1. The ASLB Properly Interpreted And Applied The Revised Policy State-12 ment In Rejecting Certain Of Joint Intervenors' Proposed Contentions. 7 2. The Commirsion's Policy Precluding 14 Litigatica Of Contentions In Licensing Proceedings Which Address 15 Safety Concerns Unrelated To Items Contained in NUREG-0737 Is Proper 15 t And Lawful 15 17 C. The ASLB Was Correct In Ruling That The Emergency Preparedness For Low Power 18 Testing Is Adequate 22 19 1. The ASLB Properly Ruled That Full Compliance With The 16 Planning 20 Criteria Of 10 C.F.R. S 50.47(b) And Appendix E Is Not Required For 21 Low Power Testing. 22 22 2. PGandE Demonstrated Compliance With 10 C.F.R. 50.47(c)(1) 26 23 a. Full Compliance With The Cri-24 teria Of 10 C.F.R. 50.47(b) And Appendix E Is Not Required 25 For Low Power Testing 26 26 -i-
0 1 Table Of Contents (continued) 2 3 4 Page 5 b. PGandE Demonstrated Compliance With The Criteria Of 10 C.F.R. 6 50.47(b) For Low Power Test-ing 29 7 3. The ASLB Acted Properly In Basing 8 Its Findings And Conclusions Of Adequate Emergency Preparedness On 9 Evidence Of The Significantly Re-duced Risks Associated With Fuel 10 Loading And Low Power Testing. 30 11 4. Consideration Of The Effects Of An Earthquake In The Diablo Canyon ~ 12 Emergency Plans Is Not Required For Issuance Of A Fuel Loading And Low 13 Power Test License 36 14 D. The ASLB Properly Found That All Appli-cable Environmental Regulations Have 15 Been Complied With 39 16 1. The ASLB Did Not Err In Refusing To Analyze The Environmental Conse-17 quences Of A Class 9 Accident. 39 1 18 2. An Additional EIS or Environmental Appraisal Is Not Required Expressly 19 For Low Power Tests 43 20 E. The ASLB's Summary Disposition Of Con-tention 13 Was Proper 47 i F. There Is No Basis For Requiring Relief, 22 Safety And Block Valv' Derformance Testing To Be Completed Prior To Fuel l 23 Loading And Low Power Testing 52 i 24 III CONCLUSION 54 l 25 r 26 -ii- _... -., -.. - - ~ -.
s e 1 TABLE OF AUTHORITIES 2 3 l 4 Page(s) 5 CASES 6 Federal Court Cases 7 Carolina Environmental Study Group 8
- v. United States, 510 F.2d 796 (D.C. Cir. 1975) 17,42 Citizens For Safe Power, Inc. v. Nuclear 10 Regulatory Commission, 524 F.2d 1291 (D.C. Cir. 1975) 44 Hodder v. Nuclear Regulatory Commission, 12 9 ELA 20058 (D.C. Cir. 1978) 42 13 Izaak Walton League of America v.
Schlesinger, 14 337 F.Supp. 287 (D.D.C. 1971) 47 15 Nader v. Nuclear Regulatory Commission, 513 F.2d 1045 (D.C. Cir. 1975) 17 Nader v. Ray, 17 363 F.Supp. 946 (D.D.C. 1973) 20 18 Natural Resources Defense Council v. Nuclear Regul2E'ory Commission, 19 539 F.2d 824 (2d Cir. 1976) 45,46 20 Siegel v. Atomic Energy Commission, 400 F.2d 778 (D.C. Cir. 1968) 21 Union of Concerned Scientists v. ' j 22 Atomic Energy Commission, 499 F.2d 1069 (D.C. Cir. 1974) 19,20,21 24 25 26 -iii- _.. _ - _ _ _. -, - - ~ _,
1 Page(s) 2 Administrative Cases 3 Maine Yankee Atomic Power Co., ALAB-16, 6 AEC 1003 (1973), 4 aff'd 7 AEC 2 (1974), aff'd sub nom. Citizens For Safe 5 Power, Inc. v. Nuclear Regulatory Commission, 524 F.2d 1291 6 (D.C. Cir. 1975) 17,44 7 Northern Indiana Public Service Co. (Bailly Generating Station, ~~ 8 Unit 1), ALAB-303, 1 NRC 858 (1975) 16 9 Northern States Power Company (Prairie Island Nuclear 10 Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978) 16 Pacific Gas and Electric Company 12 (Diablo Canycn Nuclear Power Plant, Units 1 and 2), Docket Nos. 50-275, 50-323 13 LBP-78-19, 7 NRC 989 (1978), 14 aff'd ALAB-644, 14 NRC (June 16, 1981), petition 15 for rev. pending on other issues 41 16 LBP-81-5, 13 NRC 226, (Feb. 13, 1981) ("Prehearing Conference Order") 8,10,11, 17 13,14,44, 47,48,49 DD-81-3, 13 NRC 349 (1981) 42 CLI-81-5, 13 NRC 361 (April 1, 1981) 20 (" April 1, 1981 Order") 10,11,12, 13,14,16, 21 44,49,52 22 Memorandum And Order (Granting PGandE's And Staff Motions For Summary Disposition 23 Of Joint Intervenors' Contentions 5 and 13; Denying Their Motions As To Contentions 4 24 and 24) (ASLB, Apr. 30, 1981) 50,51 25 Memorandum And Order Denying Motions For Reconsideration Of 26 The Disposition Of Contention 13) (ASLB, May 11, 1981) 51 -iv-
1 Page(s) 2 ALAB-644, 14 NRC (June 16, 1981) petition for rev. 3 pending on seismic issties 42 4 Memorandum And Order Denying Joint Intervenors' Motion To 5 Reopen Environmental Record For Consideration C" Class 9 6 Accidents, (ASLB, Oune 19, 1981) 6,40,42 7 LBP 14 NRC (July 17, 1981) (" Low Power Decision") passim 8 CLI-81-22, 14 NRC (Sept. 21, 1981) 14 9 Southern California Edison Co. 10 (San Onofre Nucleat Generating Station, Units 2 and 3) 11 Order (ASLB, July 29, 1981) 38 12 CLI NRC 13 (Sept. 18, 1981) 38 14 15 STATUTES 16 Administrative Procedure Act, 5 U.S.C. 5 552 et seq. 15,16,18, 17 20,27 18 Atomic Energy Act of 1954, 42 U.S.C. 5 2011 et seg. 15,16,18, 19 20,27 20 Atomic Energy Act of 1954 5 189(a) 42 U.S.C. 5 2239(a) 21 21 National Environmental Policy 22 Act, 42 U.S.C. 5 4321 et seq. 39 23 24 25 26 -V- . _.. ~
1 Page(s) 2 REGULATIONS 3H 10 C.F.R. 6 2.714(a)(1) 13 4 10 C.F.R. $ 2.714(a)(1)(i)-(v) 52 5 10 C.F.R. 5 2.758 12,13,17, 19,21 6 10 C.F.R. $ 2.758(b) 17 7 10 C.F.R. 9 2.762(a) 2,15,32 a 10 C.F.R. 5 2.802 17,19,20 9 10 C.F.R. 5 50.33(g) 26 10 C.F.R. 5 50.47 22,23,26 11 37 12 10 C.F.R. S 50.47(a) 26,27,35 36,37 13 10 C.F.R. S 50.47(a)(1) 27 14 10 C.F.R. 9 50.47(b) 22,26,27, 15 28,29,30, 35,36 16 10 C.F.R. $ to.47(c) 23,35,36 17 10 C.F.R. 9 50.47(c)(1) 22,26,27, 18 28,30,35, 36 19 10 C.F.R. 5 50.54(s)(2) 25 20 10 C.F.R. S 50.57(c) 14,23,44 21 10 C.F.R. 5 Sl.5(a)(2) 43 22 10 C.F.R. 5 51.5(b) 43,44 23 10 C.F.R. S 51.5(b)(3) 43,44 24 10 C.F.R. S 51.5(c)(1) 44 25 26 -vi-
1 Page(s) 2 10 C.'.R. Part 50, Proposed i Annex to Appendix D, 3 36 Fed. Reg. 22851 (Dec. 1, 1971) 40 4 10 C.F.R. Part 50, Appendix E 22,23,24, 26,28,35, 5 37 6 7 MISCELLANEOUS 8 Commission Review Procedures For Power 9 Reactor Operating Licenses; Immediate Effectiveness Rule, 46 Fed. Reg. 10 47764 (Sept. 30, 1981) 33 11 Criteria for Preparation and Evaluation of Radiological 22 Emergency Response Plans and Preparedness in Support 13 of Nuclear Power Plants, NUREG-0654, FEMA-REP-1, rev.*1 14 (Nov. 1980) 22,24,26, 30,34,37 15 Clarification of TMI Action Plan 16 Requirements, NUREG-0737 (Nov. 1980) 1,3,4,5, 17 7-16 18-26 18 48,50 19 Emergency Planning, 45 Fed. Reg. 55402 20 (Aug. 19, 1980) 25 21 Further Commission Guidance for Power Reactor Operating Licenses; 22 Statement of Policy, 45 Fed. Reg. 41738 (June 20, 1980) 9,28 23 Licensing Requirements for 24 Pending Operating License Applications, 46 Fed. Reg. 25 26491 (May 13, 1981) 21 26 -vii-b
1 Page(s) 2 Nuclear Power Plant Accident Considerations Under the 3 National Environmental Policy Act of 1969, 4 45 Fed. Reg. 40101 (June 13, 1980) 5,40, 5 41,42 6 Planning Basis for the Development of State and Local Government 7 Radiological Emergency Response Plans in Support of Light Water 8 Nuclear Power Plants, NUREG-0396 (Dec. 1978) 34,35 9 Statement Of Pol _ i.cy: 10 Further Commission Guidance For Power Reactor Operating 11 Licenses, CLI-80-42, 12 NRC 654 (1980) 12 (" Revised Policy Statement") 3,6-12, 16,17,18, 13 19,29,28 14 TMI-Related Requirements for New Operating Licenses. 15 NUREG-0694 (June 1980) 8,9,10, 18,24, 16 26,34 17 18 19 20 21 22 23 24 25 26 -viii-
9 1 I 2 INTRODUCTION 3 Joint Intervenors' effort to overturn the Atomic 4 Safety and Licensing Board's ("ASLB") partial initial 5 decision of July 17, 1981 1/ authorizing issuance of a 6 license to Pacific Gas and Electric Company ("PGandE") to 7 load fuel and to conduct low power tests at the Diablo 8 Canyon Nuclear Power Plant ("Diablo Canyon") is grounded on 9 what they wish the response of the Nuclear Regulatory 10 Commission ("NRC") had been to the Three Mile Island ("TMI") 11 accident rather than what that response actually was. 12 Indeed, Joint Intervenors are quite frank in stating that 13 their intent in the Diablo Canyon proceedings is to 14 challenge the adequacy of the Commission's TMI response. 15 Joint Intervenors' Brief In Support Of Exceptions at 1-2 16 ("Brief"). 17 Joint Intervenors spend little time in their 18 appeal challenging Diablo Canyon's compliance with the NRC's 19 safety requirements. Rather, their appeal is fundamentally 20 an attack on several Commission policies. 21 An adjudicatory licensing proceeding is not, of 22 course, the proper forum to attack Commission policy. The 23 sole function of this Appeal Board is to determine if the 24 25 1/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP 14 NRC 26 (July 17, 1981) (" Low Power Decision").
1 ASLB properly found, for purposes of fuel loading and low 2 power testing, that Diablo Canyon has complied with Commis-3 sion safety requirements. The low power record amply supports 4 the Licensing Board's findings and conclusions in that regard, 5 and accordingly, its low power decision must be affirmed. 6 II 7 ARGUMENT 8 A. Summary Of PGandE's Position 9 Joint Intervenors raise five questions in this 10 appeal, only one of which addresses a factual issue. 2f 11 12 2f Joint Intervenors took 166 exceptions to the ASLB's Low Power Decision and various associated orders. Joint 13 Intervenors' Exceptions To The Licensing Board's July 17, 1981 Partial Initial Decision (Aug. 3, 1981). How-14 ever, their Brief fails to mention a single exception, much less relate the exceptions to the issues purpor-15 tedly briefed. Joint Intervenors' Brief, therefore, fails to comply in even the most rudimentary way with 16 the requirements of 10 C.F.R. 5 2.762(a), which pro-vides in pertinent part: 17 The brief shall be confined to a con-18 sideration of the exceptions previously filed by the party and, with respect to 19 each exception, shall
- specify, intE alia, the precise portion of the record 20 relied upon in support of the assertion of error.
[ Emphasis added.]
- Moreover, reviewing the Brief in light of the excep-22 tions discloses that the Brief arguably addresses issues concerning at most only 72 of those exceptions, 23 completely ignoring 94.
At the very least, these 94 exceptions should be regarded as abandoned and dis-24 missed outright. For this Appeal Board's convenience, PGandE has attached an Appendix to this Brief in which 25 it groups the 72 exceptions according to the issues raised in Joint Intervenors'
- Brief, and numerically 26 identifies the abandoned 94. "
?
1 The proper resolution of these issues is summarized as 2 follows: 3 (1) Joint Intervenors request this Appeal Board to 4 rule that the Commission's policy statement 5 imposing additional safety requirements on license 6 applicants as part of the Commission's response to 7 the TMI accident is illegal. Brief at 2. The ASLB 8 properly followed the Commission's guidance. 9 Moreover, Joint Intervenors failed to follow the 10 available procedures for attempting to litigate 11 contentions alleging insufficient protection to 12 the public health and safety despite Diablo 13 Canyon's compliance with Commission safety 14 requirements. 15 (2) Joint Intervenors request this Appeal Board to 16 rule that the Commission acted illegally in I 17 correcting an error in NJREG-0737 concerning the l 18 implementation schedule for the Commission's new 19 emergency planning regulations. M. The 20 Commission's action was entirely proper, and the 21 ASLB, based on the extensive factuni record, 22 applied the proper standards in determining that 23 Diablo Canyon's emergency preparedness provides 24 reasonable assurance of radiological protection to h 25 the public health and safety for fuel loading and 26 low power testing. ) I -
1 (3) Joint Intervenors' claim that the ASLB erred in 2 relying on " generalized estimates of the low 3 probability of accidents" (M. ) flatly 4 misrepresents the low power record. The ASLB's 5 findings and conclusions, well supported by the 6 record, on their face demonstrate the falsity of 7 this allegation. The ASLB found that, because of 8 the significantly reduced risk (based upon 9 evidence of lower probability and lower 10 consequences) af an accident during low power 11 testing as compared to full power operation, the 12 onsite and offsite emergency preparedness is 13 adequate to proto.ct the public health and safety. 14 (4) Despite Joint Intervenors' assertion that the 15 Diablo Canyon emergency plans must consider the 16 effects of an eerthquake on emergency response 17 capability ( M. at 2-3), no Commission regulation i is or safety requirement requires such consideration l 19 for full power, much less low power, operation. 20 Joint Intervenors therefor ask this Appeal Board 21 to rule that there is insufficient protection to 22 the public health and safety despite compliance 23 with all Commission safety requirements. In other 24
- words, they mount an impermissible attack on 25 Commission regulations.
The ASLB's finding that 26 such consideration was unnecessary for low power operation was proper.._
9
,yg-4m-g. pm,,- +w ,ww.w .,yy. w- ., +,.,, wg my ,,,y.w g%r y = an
1 (5) Joint Intervenors' argument that a class 9 g 1., 2 accident analysis must be done for Diablo Canyon 3 (M. at 3) is erroneous. The Commission's recent 4 policy statement relating to the anvironmental 5 analysis of nuclear plant accidents expressly 6 states that closed environmental records, such as 7 Diablo Canyon's, should not be reopened to 8 consider the environmental consequences of a 9 Class 9 accident in the absence of special 10 circumstances. Based on this Appeal Board's 11 conclusion that Diablo Canyon is seismically safe, 12 the ASLB properly determined that no special 13 circumstances exist which would justify reopening 14 the environmental record. In effect, therefore, 15 Joint Intervenors request this Appeal Board to 16 declare illegal the Commission's Class 9 policy by 17 requiring the reopening of Diablo Canyon's closed 18 environmental record in the absence of special 19 circumstances. 20 21 Stated simply, Joint Intervenors are raising the 22 wrong issues in the wrong forum at the wrong time. While 23 there is no doubt that the Commission's policies on all of 24 these issues are legal, that is not the question before this 25 Appeal Board. The question to be resolved here is simply 26 whether the ASLB properly applied those policies. PGandE._ ?
1 will now examine these issues in more detail and in so doing 2 will demonstrate that Joint Intervenors' appeal lacks merit. 3 B. The ASLB's Rejection Of Joint Interve-nors' Purportedly TMI-Related Conten-4 tions Was Proper Under The Commission's December 18, 1980 Revised Statement Of 5 Policy. 6 Joint Intervenors proposed 27 contentions for 7 litigation on PGandE's motion to load fuel and conduct low 8 power tests. After extensive argument, the ASLB admitted 9 five of those contentions and rejected 15. 3f Eleven of 10 these contentions were rejected by the ASLB on the ground 11 that they did not meet the guidelines set forth in the 12 Commission's December 18, 1980 revised policy statement 13 concerning litigation of TMI related issues in licensing 14 proceedings. Statement Of Policy: Turther Commission 15 Guidance For Power Reactor Operating Licenses, CLI-80-42, 16 /// 17 /// 18 fff 19 20 21 3] of the remainirg seven, four were withdrawn by Joint Intervenors, two were complied with and one, relating j 22 to Class 9 acc.idents, was deferred but ultimately in I effect rejected when the ASLB issued its order deter-i 23 mining that special circumstances did not exist warranting reopening of the closed environmental 24 record. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Memorandum 25 And Order Denying Joint Intervenors' Motion-To Reopen Environmental Record For Consider.ation Of Class 9 26 Accidents, (June 19, 1981). i.
1 12 NRC 654 (1980) (" Revised Policy Statement"). 4/ Joint 2 Intervenors argue first that the ASLB misinterpreted the 3 Revised Policy Statement. Brief at 14-24. The principal 4 thrust of their argument, however, is that if the ASLB 5 properly interpreted it, the Revised Policy Statement 6 violates the law. In short, Joint Intervenors request this 7 Appeal Board to declare that the Commission acted illegally 8 in adopting the Revised Policy Statement. 9 1. The ASLB Properly Interpreted And Applied The Revised Policy State-10 ment In Rejecting Certain Of Joint Intervenors' Proposed Contentions. 12 Joint Intervenors' attack focuses on the provision 13 in the Revised Policy Statement (12 NRC at 660) permitting 14 parties to challenge the sufficiency of safety requirements 15 contained in NUREG-0737, Clarification of TMI Action Plan 16 Requirements (Nov. 1980), The ASLB interpreted this 17 provision as not permitting litigation of contentions 18 asserting the need for additional safety measures unrelated 19 to NUREG-0737 items. Pacific Gas and Electric Company 20 (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 21 22 4/ Four contentions were rejected for other reasons, such as lack of specificity (contentions 10, 14, 15 and 18). 23 Contention 10 was rejected on alternative grounds, both noncompliance with the Revised Policy Statement and 24 lack of relevancy. Although Joint Intervenors have filed exceptions alleging that the rejection of these 25 four contentions was improper (exception numbers 19, 21, 22, 25), their supporting Brief fails to discuss 26 the rejection of those contentions. --,_,., -
1 LBP-81-5, 13 NRC 226, 234-35 (Feb. 13, 1981) ("Prehearing 2 Conference Order"). 3 The ASLB's interpretation was proper. A brief 4 review of the development of the additional TMI licensing 5 requirements will demonstrate why this is so. 6 In response to the TMI accident, the NRC developed 7 an Action Plan 8 to provide a comprehensive and inte-grated plan for the actions judged 9 appropriate by the Nuclear Regulatory Commission to correct or improve the 10 regulation and operation of nuclear facilities based on experience from the 11 accident at TMI-2 and the official studies and investigations of the 12 accident. [ Revised Policy Statement, j 12 NRC at 657.] E 14 From this Actioil Plan the NRC derived a series of require-l 15 ments to be imposed on applicants for new operating 16 licenses. NUREG-0694, TMI-Related Requirements for New 17 Operating Licenses (June 1980). NUREG-0694 was superseded 18 by NUREG-0737. These new requirements were judged necessary 19 by the Commission to be imposed immediately (or pursuant to 20 a specified implementation schedule) to protect the public 21 health and safety (Revised Policy Statement, 12 NRC at 659), 22 and the Commission directed that operating license 23 applicants must comply with the additional safety 24 requiremente in NUREG-0737 in addition to existing NRC k 25 regulations in order to receive an operating license. I_d_. 26 fff (. y
1 In the Revised Policy Statement, the Commission 2 also set forth guidance to licensing boards regarding the 3 litigation of TMI-2 issues in licensing proceedings. The 4 Commission stated that as to the safety requirements listed 5 in NUREG-0737 which go beyond existing regulations by 6 imposing additional requirements, "the parties may challenge 7 either the necessity for or sufficiency of such 8 requirements." 12 NRC at 660. It was this guidance which 9 the ASLB was called upon to interpret and apply in 10 evaluating the contentions proposed by Joint Intervenors. 11 In reaching its interpretation, the ASLB analyzed 12 both the Revised Policy Statement and its predecessor. Sj 13 The Board concluded that the Commission did not intend, by 14 allowing challenges to the sufficiency of NUREG-0737 15 requirements, also to allow contentions seeking to impose 16 N/ 17 18 Sj Further Commission Guidance for Power Reactor Operating Licenses; Statement of Policy, 45 Fed. Reg. 41738 19 (June 20, 1980). This policy statement imposed the requirements contained in NUREG-0694 on near-term 20 operating license applicants. Additionally, this statement's guidelines on litigation of NUREG-0694 21 ite'ns in licensing proceedings stated that parties should not be permitted to challenge the sufficiency of 22 such requirenents where they went beyond those already imposed by existing Commission regulations. The Revised Policy Statement, besides implementing the 24 requirements of NUREG-0737, the successor to NUREG-0694, also modified the earlier policy by 25 permitting parties to challenge the sufficiency of the items centained in NUREG-0737 which are over and above 26 existing Commission regulations. 12 NRC at 660. -g_
1 additional safety requirements unrelated to those in 2 NUREG-0737: 3 [T]he Board does not believe it reason-able to interpret the provision permit-4 ting the challenge of the sufficiency of new regulatory requirements as permit-5 ting the addition of requirements not contained in NUREG-0737. [Prehearing 6 Conference Order, 13 NRC at 235.] 7 Whatever question may have lingered concerning 8 what the commission meant by permitting a party to challenge 9 the sufficiency of additional NUREG-0737 requirements was lo laid to rest by a decision of the Commission in this 11 proceeding shortly after the Prehearing Conference Order was 12 issued. In an order dated April 1, 1981, the Commission 13 explained the procedures which should be followed with 14 respect to contentions which alleged insufficient protection 15 to the public despite compliance with all NRC regulations. 16 Pacific Gas and Electric,gompany (Diablo Canyon Nuclear 17 Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361 (April 1, 18 1981) (" April 1, 1981 Order"). 19 Joint Intervenors have quoted carefully selected 20 portions of the April 1, 1981 Order. Brief at 23. They 21 have, however, deleted from the second quoted paragraph the 22 one sentence which summarizes the Commission's explanation: 23 Contentions which address a safety j concern not considered in NUREG-0694 and 24 -0737 shall not be entertained as challenges t_o the sufficiency of those o 25 requirements. [ April 1, 1981 Order, 13 NRC at 363-64; emphasis added.] 26. + e--.cm., ,.~,..%,,--9 y,,. ,,-o, Preg- ---7 -+m*w--'e*--?m*- w + ~w---v-T-----
i l 1 PGandE submits that the Commission's April 1, 1981 2 Order confirms the correctness of the ASLB's interpretation 3 of the Revised Policy Statement. Litigation of contentions 4 unrelated to NUREC-0737 requirements is not permitted. 5 Apparently unconvinced of the merit of their 6 assertion that the ASLB misinterpreted the Revised Policy 7 Statement, Joint Intervenors also claim that certain (albeit 8 unspecified) contentions rejected by the ASLB in fact 9 complied with the ASLB's interpretation that a contention, 10 to be adnissible, must relate to an item in NUREG-0737. 11 Joint Intervenors have not, however, favored this Appeal 12 Board with any explanation of why this is so. Instead, they 13 simply assert, without more, that "many of the rejected 14 contentions were, in fact, related to specific NUREG-0737 15 requirements." Brief at 13. Joint Intervenors apparently 16 expect this Appeal Board to wade through, without 17 assistanc0, the entire low power record in its search. A 18 review of the ASLB's February 13, 1981 Prehearing Conference 19 Order, however, will establish that the ASLB analyzed in 20 detail each proposed contention and stated its reasons why 21 the rejected contentions were insufficient. Prehearing 22 Conference Order, 13 NRC at 237-45. 23 Finally, PGandE believes it significant that Joint 24 Intervenors urge no other basis for admission of the 25 rejected contentions than that they are related to a 26 NUREG-0737 requirement. Their argument, reduced to its 9
i 1 essentials, is nothing more than that all contentions 2 necessarily relate to TMI because they raise safety issues,. 3 and since they relate to TMI, they challenge the sufficiency 4 of a NUREG-0737 item. Fortunately, the ASLB saw the Joint 5 Intervenors' argument for what it is, open ended and far 6 beyond anything the Commission contemplated in the Revised 7 Policy Statement. To accept Joint Intervenors' argument 8 would be to rule that there are no bounds on admissible 9 contentions other than Joint Intervenors' counsel's 10 imagination. 11 The Commission's April 1, 1981 A der described two 12 procedures for attempting to litigate contentions unrelated 13 to an item in NUREG-0737: 14 (1) if the contention argues that there is 15 insufficient protection to the public despite 16 compliance with all NRC regulations, a party may 17 use the procedures of 10 C.F.R. 5 2.758 to bring 18 the matter to the attention of the Commission (13 19 NRC at 364); and 20 (2) if the contention a;gues that there is 21 noncompliance with NRJ regulations, a party may 22 litigate such a contention if it carries the 1 23 burden of reopening the closed hearing record, 24 i. e_., significant new evidence not included in u 25 /// l l 26 /// ._,m 4 ..,,,g
4 L 1 the record, that materially affects the decision." 1 2 Id. at 363. 6f 3 At no time have Joint Intervenors attempted to utilize 10 4 C. F. F.. $ 2.758 or to reopen the closed hearing record. 5 Prehearing Conference Order, 13 NRC at 236. As the ASLB 6 stated: 7 [N]either the Governor nor the Joint Intervenors sought to establish good 8 cause for admitting new contentions or reopening the record on old contentions 9 aside from their reliance on NUREG-0737. 10 4 11 Accordingly, the ASLB's determination that the re-12 jected contentions are unrelated to a NUREG-0737 requirement j 13 /// 14 /// 15 /// 16 17 18 19 6f The record in this proceeding was closed prior to the 20 TMI accident, and, of course, long prior to the filing of PGandE's motion to load fuel and conduct low power 21 tests on July 14, 1980. Prehearing Conference Order, 13 NRC at 227-28. The closed status of the Diablo 22 Canyon record was the underpinning for the Commission's April 1, 1981 Order. Accordingly, in order to have an_y 23 contentions admitted for litigation in the low power proceedings, Joint Intervenors were required to meet 24 the standards for reopening closed hearing records and for admitting late-filed contentions under 10 C.F.R. 25 5 2.714(a)(1). Prehearing Conference Order, 13 NRC at 232-34; April 1, 1981 Order, 13 NRC at 362-65; Low 26 Power Decision at 4.,
1 is proper and dispositive. y Joint Intervenors having 2 failed to follow the prescribed procedures for admitting 3 contentions unrelated to NUREG-0737, their appeal on this 4 issue must be rejected. 5 /// 6 /// 7 8 y Prehearing Conference Order, 13 NRC at 237-45. We are, of course, aware of the Commission's recent Memorandum 9 and Order permitting the Low Power Decision to become effective in which it directed that two of the rejected 10 contentions be considered in the full power proceed-ings. Pacific Gas and Electric Company (Diablo Canyon 11 Nuclear Power Plant, Units 1 and 2 ), CLI-81-22, 14 NRC (Sept. 21, 1981). The Conmission's action does not 12 in any way undercut the force of this argument or the correctness of the ALSB's decision to exclude these 13 contentions as unrelated to items contained in NUREG-0737. 14 First, the Commission stated its belief that these two 15 contentions (as well as all other rejected contentions) would have significance only for full power operation, 16 and not for low power. g, slip. op, at 2. See 10 C.F.R. 5 50.57(c) and the Commission's April 1, 1981 17 Order (13 NRC at 362) which requires that contentions must be "directly related to the fuel loading and low 18 power licensing request." 19
- Second, the concurring comments of Commissioner Gilinsky suggest that the Commission's rationale was 20 that while the contentions were unrelated to NUREG-0737 requirements, they should nevertheless have been admit-21 ted because they allege that existing Commission regu-lations were not being complied with.
September 21, 22 1981 Orcer, slip op., Commissioner Gilinsky's separate opinion at 1 n.l. See April 1, 1981 Order at 3-4. PGandE does not agree that these two contentions were 24 properly admitted under the standards set forth in the April 1, 1981 Order. See PGandE's Motion For Recon-25 sideration Of The Commission's September 21, 1981 Order As It Directs Inclusion Of Contentions 10 and 12 In The 26 Full Power Proceeding. _ -.-,...m-9
9 1 2. The Commission's Policy Precluding Litigation Of Contentions In 2 Licensing Proceedings Which Address Safety Concerns Unrelated To Items 3 Contained in NUREG-0737 Is Proper And Lawful. 4 5 At the outset, it is important to identify what 6 the issue raised here is and what it is not. This is not a 7 case in which Joint Intervenors have been denied "an 9 opportunity to be heard, either through notice and comment 9 under the Administrative Procedure Act or hear.ing under the 10 Atomic Energy Act, reg.;rding critical safety issues arising 11 out of the TMI accident." Brief at 2. 8/ Joint Intervenors 12 have had ample opportunity to be heard concerning TMI safety 13 issues, and if they have failed to avail themselves of those 14 opportunities, that is their fault, not the Licensing 15 Board's or the Commission's. 16 The sole question raised here is whether the 17 Commission may consolidate into a single administrative 18 proceeding - rulemaking - challenges to the sufficiency of 19 additional licensing requirements imposed on license 20 applicants to protect the public health and safety rather 21 /// 22 8/ Interestingly, although Joint Intervenors took 166 23 exceptions to the Low Power Decision, not one of those exceptions raised this issue. Under 10 C.F.R. 5 24 2.762(a), the brief supporting the exceptions "shall be confined to a consideration of the exceptions 25 previously filed." Accordingly, this issue is not properly before this Appeal Board, and it should be 26 summarily rejected for this reason alone. ~-
1 than have them litigated in individual licensing 2 proceedings. The answer to this question is, and must be, 3 yes. 4 We do not believe that it is the proper role of 5 this Appeal Goard to question the propriety of Commission 6 policy. To the contrary, Commission policies "must be 7 respected by the licensir.g boards and [ appeal boards] unless 8 a.nd until rescinded by the Commission or overturned by the 3 courts." Northern States Power Company (Prairie Island 10 Nuclear Generating Plan, Units 1 and 2), ALAB-455, 7 NRC 41, 11 50-51 (1978); Northern Indiana Public Service Co. (Bailly 12 Generating Station, Unit 1), ALAB-303, 1 NRC 858, 870 13 (1975). Nevertheless, we will provide a brief discussion 14 here demonstrating that the ASLB acted properly and did not 15 violate any provisions of administrative due process, the 16 Administrative Procedure Act or the Atomic Energy Act in 17 refusing to permit Joint Intervenors to litigate in the low 18 power proceeding contentions asserting the need for 19 additional safety requirements unrelated to those contained 20 in NUREG-0737. 21 The provision in the Revised Policy Statement 22 allowing parties to challenge the sufficiency of an item in 23 NUREG-0737 constitutes Commission permission to argue to 24 that extent that there is insufficient protection to the 25 public despite compliance with.111 NRC safety requirements. 26 April 1, 1981 Order, 13 NRC at 363. As such, this 16- .y .e e--. a w -y y +9 m -r -%e.+w- -w- ~. p 9 y w--e.- ,-p
1 permission is a departure from long-standing Commission 2 procedure which prohibits parties in individual licensing 3 proceedings from arguing that despite compliance with 4 Commission regulations there is insufficient protection to 5 the public health and safety. 10 C.F.R. S 2.758. Demon-l 6 strated compliance with Commission regulations warrants 7 issuance of a license. Maine Yankee Atomic Power Co., 8 ALAB-161, 6 AEC 1003 (1973), aff'd 7 AEC 2 (1974), aff'd sub 9 nom. Citizens For Safe Power, Inc. v. Nuclear Regulatory 10 Commission, 524 F.2d 1291 (D.C. Cir. 1975). 11 If intervenors wished to argue that compliance 12 with Commission regulations is nevertheless insufficient to 13 protect the public health and safety, they had two avenues 14 available to them: (1) petition for rulemaking (10 C.F.R. 15 $ 2.802); and/or (2) the procedure set forth in 10 C.F.R. 16 5 2.758(b). A failure to pursue those procedural routes to 17 test the Commission's regulations precludes parties from 18 challenging them not only in the licensing proceedings but 19 also subsequently in court. Citizens For Safe Power, 20 Inc. v. Nuclear Regulatory Commission, supra, 524 F.2d at 21 1300; Nader v. Nuclear Regulatory Commission, 513 F.2d 1045, 27 1054-55 (D.C. Cir. 1975). 23 Recognizing the need for urgent action after the 24 TMI accident, the Commission promulgated additional safety 25 requirements, stating that in so doing its " primary 26 considerations were the safety significance of the issues "
1 and the immediacy of the need for corrective actions." 2 Revised Policy Statement, 12 NRC at 659. These new require-3 ments were set forth first in NUREG-0694, then in 4 NUREG-0737. No longer is compliance with Commission safety 5 regulations sufficient to obtain a license. An applicant 6 must also comoly with these new additional safety 7 requirements in order to receive an operating license. 8 Revised Policy Statement, 12 NRC at 659. 9 Joint Intervenors, although conceding the 10 immediate need for additional safety requirements (Brief at 11 10), in effect argue that the Commission, by imposing this 12 substantial additional public protection, somehow opened the 13 door for them to litigate anything else they could think of 14 by merely asserting that there is some unspecified relation 15 to TMI. This argument defies logic. 16 License applicants have had imposed upon them 17 additional safety requirements, and other parties have been 18 provided an opportunity to argue that still more may be 19 necessary. It is ludicrous to suggest that by putting a 20 reasonable bound on the extent to which intervenors may urge 21 yet new requirements, the Commission has denied them rights 22 under the Administrative Procedure Act and the Atomic Energy 23 Act. Indeed, were it not for the Revised Policy Statement, 24 Joint Intervenors would have n_o,right, apart from 10 C.F.R. o 25 /// 26 /// 18-3-- -,-,.c ,T -"'"'--7'-- ""P ~* ---"-P'"? ~"
1 1 $$ 2.758 and 2.802, to challenge the sufficiency of 2 Commission safety requirements. 9/' 3 The procedure followed by the Commission here has 4 been expressly approved by the District of Columbia Circuit 5 Court of Appeals in Union of Concerned Scientists v. Atomic 6 Energy Commission, 499 F.2d 1069, 1081-85 (D.C. Cir. 1974). 7 In that case, the D.C. Circuit affirmed the issuance of a 8 full-term operating license to the Pilgrim facility even 9 though the ASLB refuseci to permit intervenors ("UCS") to 10 challenge an AEC interim policy statement containing Interim 11 Acceptance Criteria ("IAC") for emergency core cooling 12 systems ("ECCS"). That interim policy statement required 13 applicants' ECCS to comply with the IAC, but the Pilgrim 14 licensing board refused to permit UCS to attack the 15 sufficiency of those standards even though they had been 16 17 9/ Joint Intervenors are upset with only one provision of the Revised Policy Statement (the provision which per-18 mits challenges to the sufficiency of safety require-ments in NUREG-0737) because it does not allow them to 19 litigate the need for more safety requirements unre-lated to NUREG-0737. Presumably, Joint Intervenors do 20 not take issue with the Revised Policy Statement to the extent it, through NUREG-0737, imposes additional 21 safety requirements on license applicants. Their only complaint is that it does not go far enough. But if 22 the portion of the Revised Policy Statement which Joint Intervenors complain about is illegal for the reasons 23 that they say it is (i.e., promulgated without notice and comment), necessarify all of the Revised Policy 24 Statement is illegal, including the imposition of the new safety requirements in NUREG-0737. This would have 25 the effect of invalidating the entire Revised Policy Statement, a result which we assume Joint Intervenors 26 would not want.
s r 1 promulgated without a prior hearing, holding that the proper 2 forum for UCS to raise this challenge was rule making. 3 The court stressed that the AEC must be permitted 4 to exercise its discretion to restrict challenges to its 5 safety standards to rule making, otherwise licensing 6 proceedings could be effectively halted: 7 In the instant case, where challenges to the agency's standards rather than 8 agency enforcement of those standards are consolidated into a single adminis-9 trative proceeding, the same considera-tions are operative. If the agency 10 could not consolidate the challenges to its rules into rule making, and mean-11 while proceed with adjudications, UCS and other intervenors in other cases 12 would effectively be able to impose a moratorium on licensing, despite the 13 Commission's judgment that it is prompt action that is called for. [Id. at 14 1081-82; footnote omitted.] 15 See also Nader v. Ray, 363 F.Supp. 946, 955 (D.D.C. 1973). 16 Thus, the NRC may impose immediately effective 17 safety requirements on license applicants through the i 18 vehicle of a policy statement, without prior hearing and 19 preclude intervenors from challenging the sufficiency of 20 those requirements in individual licensing proceedings. 21 Accordingly, Joint Intervenors are being deprived 22 of no rights provided them by either the Administrative 23 Prccedure Act or the Atomic Energy Act. They could petition 24 for rulemaking pursuant to 10 C.F.R. S 2.802. They could 25 bring a contention unrelated to an item in NUREG-0737 to the 26 Commission's attention through the procedures established by i '
U 4 1 10 C.F.R. 5 2.758. Finally, the Commission several months 2 ago commenced rule making regarding NUREG-0737, prior to the 3 commencement of low power hearings, in which Joint 4 Intervenors may participate if they wish. Licensing 5 Requirements for Pending Operating License Applications, 46 6 Fed. Reg. 26491 (May 13, 1981). 1_0/ 7 The Commission's Revised Policy Statement as 8 applied in the Diablo Canyon low power proceeding does not 9 deprive Joint Intervenors of any rights, and is a lawful 10 exercise of the Commission's discretion in deciding to treat 11 the new safety reqairements generically rather than on a 12 case-by-case basis in individual licensing proceedings. 13 Joint Intervenors' appeal on this issue must be 14 rejected. _1_1/ 1 15 l_Of For these reasons, the cases cited by Joint Intervenors 16 at pages 25-34 of their Brief are simply inapplicable. 17 Those cases raise the completely different issue of whether a binding requirement may be issued without 18 notice and comment. Joint Intervenors have had notice and opportunity to comment. Joint Intervenors' cases 19 are inapposite, and the Union of Concerned Scientists case establishes that the procedure followed by the 20 Commission was proper. 21 1_1/ Joint Intervenors' argument (Brief at 35-37) that they are being deprived of the right to a hearing under 22 section 189(a) of the Atomic Energy Act is specious. I f, as
- here, the commission can properly preclude contentions that safety requirements unrelated to those l
23 in NUREG-0737 are required in licensing proceeding, it 24 is illogical to claim that such a proper exercise of the Commission's discretion results in Joint Inter-l 25 venors being improperly denied a hearing to that extent. Siegel v. Atomic Energy Ccamission, 400 F.2d 26 778, 784-85 (D.C. Cir. 1968). C
1 1 C. The ASLB Was Correct In Ruling That The Emergency Preparedness For Low Power 2 Testing Is Adequate. 3 1. The ASLB Properly Ruled That Full Compliance With The 16 Planning 4 Criteria Of 10 C.F.R. 5 50.47(b) And Appendix E Is Not Required For 5 Low Power Testing. 6 Joint Intervenors complain that the ASLB erred in 7 not requiring onsite and offsite emergency plans to comply 8 completely with 10 C.F.R. S 50.47(b) and Appendix E of the 9 Commission's new emergency planning regulations. Brief at 10 39-46.. This allegation is without merit. 11 Full compliance with the planning standards in 10 12 C.F.R. S 50.47(b) and the criteria in NUREG-0654 M/ is not 13 required for fuel loading and low power tescing. NUREG-14 0737, enclosure 2 at 8 (item III.A.l.1.). Section 50.47 15 does not contain a schedule for implementation of the new 16 emergency planning requirements. When first written, 17 NUREG-0737 had initially provided that full compliance with 18 these requirements must be demonstrated prior to fuel 19 loading, raising a possible inconsistency with section 20 50.47(c)(1), which provides that a license may be issued 21 with less than full compliance with the new requirements if 22 the deficiencies are not significant. On April 22, 1981, 23 /// 3 24 12/ Criteria for Preparation and Evaluation of Radiological 2 25 Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654, FEMA-REP-1, Rev. 1 26 (Nov. 1980).... - -- J' ~_
1 the Commission approved a change to NUREG-0737, specifically 2 changing the implementation schedule for full compliance 3 with Appendix E to full power only. Accordingly, the ASLB 4 was correct when it concluded that "[f]ull compliance with 5 Appendix E prior to fuel loading and low power testing is 6 not required." Low Power Decision at 23. 7 Joint Intervenors argue that the Nuclear 8 Regulatory Commission Staff (" Staff") document (SECY-81-188, 9 attached as Exhibit A to PGandE's Opposition To Joint 10 Intervenors' Application For A Stay (Sept. 17, 1981)) which 11 recommended the Commission's April 22, 1981 action does 12 nothing more than reaffirm that the flexibility of section 13 50.47(c) is available to applicants for low power licenses 14 if the proper showing is made. Brief at 42-48.
- However, 15 the Staff's recommendation was not simply to reaffirm the 16 availability of the flexible case-by-case approach of 17 sections 50.47(c) and 50.57(c), but was instead to correct 18 the implementation schedule in NUREG-0737.
As set forth in 19 the SECY paper, 20 The Staff proposes that the Commis-sion approve the suggested changes to 21 the table in NUREG-G.37 to clarify the differences between the emergency 22 planning requirements contained in 10 C.F.R. 5 50.47 that must be met prior to 23 full power authorizations versus those prerequisite for operating license au-24 thorizations only for fuel loading or for low power testing. [SECY-81-188 at 2s 2.) 26 /ff _.
~ 4 1 The Staff explained that this correction was 2 necessary because of a mistake in drafting NUREG-0737: 3 When NUREG-0737 was being-
- written, the timing for evaluation of 4
offsite plans as set forth in NUREG-0654 was inadvertently changed to include 5 those licensees requesting permission to conduct only fuel loading or low power 6 testing. [Id. at 1.] 7 NUREG-0694 (the predecessor to NUREG-0737) pro-8 vided that applicants for fuel loading and low power test 9 licenses were required to comply only with the then-effec-10 tive Appendix E to 10 C.F.R. Part 50. NUREG-0694 specifi-11 cally provided that compliance with the new emergency 12 planning criteria in NUREG-0654 was required only for 13 issuance of a full-power license.
- Thus, the Staff's 14 recommendation and the Commission's action in correcting the 15 l
mistake in NUREJ-0737 simply gave effect to both the Staff's 16 and the Commission's original intention. 17 Joint Intervenors also argue that the Commission 18 acted illegally in changing the implementation date in 19 NUREG-0737. Brief at 44-46. The Commission's action does 20 not in any way affect the effective date of the regulations. 21 The effective date of a regulation is the date it becomes 22 law. The schedule for implementation, on the other hand, is 23 /// 4 /// \\ 25 \\ /// 26 !
1 the date on which those affected by the regulation are 2 required to comply with its substantive requirements. M/ 3 Since the implementation date for license 4 applicants is contained in NUREG-0737, and not in the 5 regulations, the Commission's action does not change the 6 regulations. Surely the Commission need not go through 7 rulemaking procedures to diange an item, particularly an 8 implementation date, in NUREG-0737, whi:h itself was not, 9 and need not have been, adopted through notice and comment. 10 The Joint Intervenors have been deprived of no 11 rights by the Commission's action in requiring implementa-12 tion with the new emergency planning requirements only for full power operation. Rather, they simply do not like it. 14 Dissatisfaction with Commission action does not make it 15 illegal. 16 /// 17 /// 18 /// 19 20 21 22 1_3/ Obviously, for many regulations, the implementation 23 date must be different from the effective date, and this is the case for the emergency planning regula-24 tions. See the Commission's comments when it promul-gated the new emergency planning regulations in which 25 it discussed the schedule for implementation. Emer-cency Planning, 45 Fed. Reg. 55402, 55404-05 (Aug. 19, 26 .L980). - m- ~ w
s t 1 2. PGandE Demonstrated Compliance With 10 C.F.R. S 50.47(c)(1). a. Full Compliance With The Cri-3 teria Of 10 C.F.R. $ 50.47(b) And Appendix E Is Not Required 4 For Low Power Testing. 5 Joint Intervenors argue that full ccmpliance, 6 without exception, with the requirements of 10 C.F.R. 7 50.33(g) and 50.47(a) and (b) is necessary before fuel load 8 and low power testing. 14f They go to great lengths arguing 9 that PGandE is attempting to rewrite or ignore completely 10 the requirements of section 50,47. In fact, PGindE merely 11 followed the explicit language of 5 50.47(c)(1) in seeking 12 relief from full compliance with the sixteen planning 13 standards set forth in section 50.47(b). 14 l_4/ In asserting that onsite and offsite plans must meet 15 the 16 planning criteria set forth in 10 C.F.R. 6 50.47(b), Joint Intervenors argue that the detailed 16 criteria in NUREG-0654 must be complied with. Brief at 41-42.
- However, as made clear by the implementation 17 schedule in NUREG-0694, this was never the Commission's intent.
See discussion, supra at 23-25. Moreover, all 18 other licenses to load fuel and conduct low power tests issued subsequent to the TMI accident were not required 19 to comply with the criteria set forth in NUREG-0654 (initially promulgated in January 1980), and those 20 issued subsequent to November 3,
- 1980, the effective date of the new emergency planning regulations, were 21 not required to comply with NUREG-0654, 10 C.F.R.
S 50.47(b) or Appendix E. We f 4.id it interesting that when it serves their pur-23 pc ;, Joint Intervenors are quite willing to rely on " guidance promulgated without complying with 24 rule-making procedures as establishing a binding safety requireirant (e.g., NUREG-0654), yet when it does not 25 suit trair purpose ( e. g., the Revised Policy Statement provis.on re litigation of NUREG-0737 safety require-26 mentc) they claim such " guidance" is illegal. e -.*9 --t,mm.-
- n 3
1 10 C.F.R. 9 50.47(a)(1) provides that: 2 No operating license for a nuclear power reactor will be issued unless a finding 3 is made by NRC that the state of onsite and offsite emergency preparedness 4 provides reasonable assurance that adequate protective measures can and 5 will be taken in the event of a radiological emergency. ly 7 Section 50.49)(1) goes on to establish three 8 separate means by which an applicant may make an appropriate 9 showing that something less than literal compliance with the 10 standards of section 50.47(b) will suffice to allow the 11 issuance of even a full power operating license. Section 12 50.47(c)(1) provides that: 13 (a) "ftilure to meet the standards set forth in 14 [5 50.47(b)] . mal result in the Commission declining to 15 issue an operating license." (Emphasis added.)
- Thus, 16 noncompliance with these standards does not necessarily 17 result in denial of an operating license.
18 (b) "the applicant will have an opportunity to 19 demonstrate . that adequate interim compensating actions 20 have been or t.i.11 be taken. 21 /// 22 /// 23 15f This language reiterates the basic statutory require-24 ment of the Atomic Energy Act that there be reasonable assurance of the protection of the public health and 25 safety in the operation of nuclear facilities. 10 C.F.R. 9 50.47(a) makes this the standard for measuring 26 emergency preparedness. "
1 (c) "the applicant will have an opportunity to 2 demonstrate to the satisfaction of the Commission that 3 deficiencies in the plans are not significant for the plant 4 in question. " This language clearly contemplates an 5 applicant presenting evidence that the nature and extent of 6 the proposed activity for which authority is being sought, 7 plus other fac%rs, do not justify strict compliance with 8 these standards. 9 Certainly, under section 50.47(c)(1), if compli-10 ance with the standards of section 50.47(b) is not required 11 for a full power license, by a parity of reasoning, e 12 applicant for a low power test license need not meet all 13 these requirements. 1_6/ t 14 /// 15 fff 16 17 1_6/ Indeed, the logic and practicality of this interpreta-tion are reinforced by language in Appendix E of 10 18 C.F.R. Part 50. For example, in section F (Training) of Appendix E there is a general requirement for a full 19 scale exercise of onsite and offsite emergency plans. i l Part of that provision requires a test exercia at a 20 site for which an initial operating license is being L considered. However, the mandated exercise need only 21 take place "within one year before the issuance of the operating license for full power. EIrphasis 22 added. There is no explicit requirement in Appandix E for any exercise prior to low power testing. More-23 over, recent policy statements issued by the Commission explicitly recognize that for low power testing an 24 applicant need not meet all the full power require-9 ments. Further Commission Guidance for Power Reactor W 25 Operating Licenses; Statement of Policy, 45 Fed. Reg. 41738, 41739 n.9 (June 20, 1980); Revised Policy State-26 ment, 12 NRC at 659 n.9. ( I l,, . ~..,. - -., -
1 b. PGandE Lemonstrated Compliance With The Criteria Of 10 C.F.R. 2 5 50.47(b) For Low Power Test-ing. 3 4 PGandE presented evidence on each of the 16 5 planning criteria in section 50.47(b). That evidence 6 demonstrated that PGandE had complied with these criteria l 7 for purposes o_f_ fuel loading and low power testing. Testi-8 mony of James D. 3hiffer following Tr. 10604, at 4-32; Tr. 9 10823-10862. Based on this evidence, the ASLB found that 10 deficiencies in emergency preparedness are insignificant for 11 fuel loading and low power testing. Low Power Decision at 12 51, conclusion 133. 13 PGandE's evidence outlined the Company's organiza-14 tional str2cture (Shiffer Testimony at 4-6), facilities (M. 15 at 7-10), communications system including dedicated tele-16 phone lines to the County Emergency Operations Center at the 17 Sheriff's office, the State Office of Emergency Services and' l 18 the NRC (M. at 12-15), radiological monitoring capability l 19 (M. at 16-20; Tr. 10755-10786), and post-accident sampling 20 capability (M. at 21-23) which would be available to 21 respond to any radiological emergency during low power 22 tes ti..g. The arrangements for medical services for injured 23 and c.ontaminated personnel (id. at 24-25) as well as the 24 training sessions and drills held during the past few years 1 25 for emergency response personnel ( M. at 30-31) were identi-26 fied. Further, PGandE outlined the additional training, I.
1 drills and exercises scheduled to commence in June 1981 and 2 which culminated in a full-scale Company, state and local 3 exercise in August 1981 (M. at 31-32 ). Finally, the 4 emergency procedures for prompt notification of the Sheriff 5 by site personnel in situations where an evacuation of the l I 6 low population zone ("LPZ") would be recommended and the 7 response plans of the Sheriff were identified and discussed 8 (M. at 33, 38-39). 9 Accordingly, PGandE has fully complied with 10 10 C.F.R. 5 50.47(c)(1), 1_7f and the Joint Intervenors' appeal 11 on this issue should be rejected. 12 3. The ASLB Acted Properly In Basing Its Findings And Conclusions Of 13 Adequate Emergency Preparedness On Evidence Of The Significantly Re-14 duced Risks Associated With Fuel Loading And Low Power Testing. 16 The simple answer to Joint Intervenors' assertion 17 that the ASLB improperly relied on " generalized estimates of 18 19 l_7f Joint Intervenors assert that all parties " conceded" that the emergency plans do not comply with "even one 20 of the sixteen regulatory standards set forth in 10 C.F.R. 5 50.47(b) and defined in NUREG-0654." Brief at j 21 45; emphasis deleted. PGandE admitted that the plans did not, at the time of the low power hearings, comply 22 with 10 C.F.R. 5 50.47(b) and Appendix E (as well as NUREG-0654) for full power operation, but such 23 compliance is not required for low power operation. NUREG-0737, enclosure 2 at 8 (ite III.A.1.1.). In any 24
- event, PGandE demonstrated liance with the s
regulations for low power tests by presenting evidence 25 on each of the standards in 10 C.F.R. 9 50.47(b) and by demonstrating that any deficiencies are insignificant. 26 10 C.F.R. 5 50.47(c)(1)... J
4 1 low probability of accidents" (Brief at 46) is that the 2 Board did no such thing. The ASLB found that because of the 3 significantly reduced risk (probability and consequences) of 4 an accident occurring during low power testing as compared 5 to full power operation (Low Power Decision at 29-35, 50), 6 the area which might be affected by an accident and for 7 which it is reasonable to require that emergency planning 8 must be in place is the LPZ. M. at 50-51. The Board then 9 concluded that the emergency preparedness for the LPZ which 10 is in place is adequate to protect the public health and 11 safety. This conclusion was based on extensive analysis and 12 findings on the adequacy of PGandE's (M. at 36-45) and the 13 County's ( M. at 45-50) emergency preparedness. 14 It is, therefore, also obvious that Joint 15 Intervenors' allegation that there is "an absence of offsite 16 emergency preparedness" (Brief at 46) is a falsehood. The 17 ASLB found that a reasonable emergency planning area for low 18 power tests is the LPZ, and that adequate emergency plans 19 exist to protect persons within this zone. Low Power 20 Decision at 45-51 (specifically conclusions 130 and 133). 21 The ASLB was entirely justified in limiting its 22 consideration of offsite emergency preparedness to the LPZ. 23 The basis for this determination was the Board's conclusion 24 that "the risks from fuel load and low power testing are 25 considerably reduced from that at full power opera-26 tion. M. at 50. This conclusien was based on
1 findings from extensive evidence on the record presented by 2 both PGandE and the Staff that there ere a number of risk 3 reduction factors which result in both a_ lower probability 4 of an accident occurring with offsite releases and lower l 1 5 consequences if such an accident does occur at low rather 6 than at full power. Id. at 24-35; Testimony of W. K. Brunot 7 following Tr. 10595, at 6-11, 21; Testimony of G. N. Lauben 8 following Tr. 11014, at 2-9; Testimony of James D. Shiffer 9 following Tr. 10604, at 33-37; Tr. 10625-10626, 1b855-10858, 10 11120-11122, 11126-11131. W This evidence was uncontra-11 dicted; neither the Joint Intervenors nor Governor Brown 12 presented any evidence whatsoever on the risk issue. 13 Instead, their counsel merely made convoluted arguments 14 which the ASLB properly rejected. Brief at 30-34. t 15 Joint Intervenors apparently believe that the same 16 level of emergency preparedness is necessary for fuel load 17 and low power testing as is required for full power 18 operation. Brief at 46-51. The underlying premise of the 19 Joint Intervenors' argument is that decisions on emergency 20 planning cannot he based in any way upon " risk" or 21 fff 22 18/ Joint Intervenors attempt to dismiss PGandE's testimony 23 on risk reduction because it relied, in part, on pro-fessional judgment rather than on " precise mathematical 24 calculations." Brief at 51 n.85. Joint Intervenors cannot simply dismiss sworn, competent and uncontra-25 dicted testimony of a qualified expert witness because they have some unde fined notion about professional 26 judgment. -
1 " probability" of accidents but must somehow consider only 2 " consequences." Joint Intervenors fail completely to grasp 3 the meaning of the undisputed fact that " probability" and 4 u consequences" are not separable. Low Power Decision at 5 31-32. They are also apparently unable (or unwilling) to 6 grasp the meaning of the detailed testimony and the ASLB's 7 findings on the relationship between risk, probability and 8 consequences. M. at 24-35. [ 9 There is no scientific or legal theory which calls 10 for considering consequences only and ignoring the I 11 probability and risk factors. For example, the low fission 12 product inventory at low power reduces the consequences of c 13 all accidents and reduces the probability of any accident 14 occurring, thus reducing the risk. The lower fission 15 product inventory creates less heat, thereby giving more 16 time for corrective action, and the lower inventory 17 obviously reduces the potential consequences. Id. 19/ 18 19 J.9/ The Commission recognized this indisputable fact when it recently revamped its immediate effectiveness review 20 procedures: 21 [ Fuel loading and low power testing] activities involve minimal risk to the 22 public health and safety, in view of the limited amounts of fission products and 23 decay heat, and greater time available to take any necessary corrective action 24 in the event of an accident. [Commis-sion Review Procedures For Power Reactor 25 Operating Licenses; Immediate Effective-ness Rule, 46 Fed. Req.
- 47764, 47765 26 (Sept. 30, 1981).] "
1 Joint Intervenors also assert that PGandE did not 2 consider accident sequences with containment leakage beyond 3 design basis values. Brief at 49. This simply is not true. 4 Joint Intervenors either did not comprehend or ignore the 5 written testimony of PGandE witness Dr. Brunot at pages 19 6 through 21 on emergency planning zones. This testimony was 7 based upon the zones recommended in NUREG-0654 and 8 NUREG-0396 2_0/ which explicitly considered accidents 9 involving core melt and containment failure. NUREG-0396 at 10 I-36 to I-53. In fact, Dr. Brunot's conclusions on 11 emergency planning zones have taken into consideration such 12 accidents. Brunot Testimony following Tr.10595, at 21. 13 The PGandE testimony presented consequence results 14 for three ranges of accidents. Consequences were presented 15 for the range of design basis accidents (Brunot Testimony 16 following Tr.10595, at 12), for the range of accidents 17 hypothesized at Diablo Canyon similar to the TMI accident 18 (M. at 18 and Tables II and III; Low Power Decision at 19 29), 2_1/ aM consequences considered in NUREG-0654 (derived l l 20 /// 21 20/ Planning Basis for the Development of State and Local 22 Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants (Dec. 23 1978). 24 21/ This testimony illustrates to what length Joint Inter-venors will distort the record in an attempt to find 15 some support for their appeal, for they assert that l PGandE never considered a TMI-type accident. Brief at l 26 50. l l l.
1 from NUREG-0396 ) which included core melt and containment 2 failure accidents. Brunot Testimony at 19-21. As made 3 abundantly clear in the testimony, PGandE's recommended 4 emergency planning zone for low power was indeed based upon 5 consideration of accident consequences, not ignoring, as 6 Joint Intervenors do, the important relationship between 7 probability and consequence. 8 Joint Intervenors argue that "[e]ren the release 9 of only a small amount of such inventories " poses an 10 unacceptable health risk, and attempt to equate " inventory" i 11 to " release" and then to "significant health risk," all } 12 without discussion (and, at the low power hearings, without 13 any evidence to back up their argument). Brief at 48-49. { ~ 14 This complaint completely ignores such details as means of 15 distribution, proximity of the substance, forms of the 16 substance, atmospheric dilution, conservation of mass and 17 energy, potential energy for release, and numerous other 18 events and transformations involved in the evaluation of a i 19 real risk. Low Power Decision at 24-35; Brunct. Testimony 20 following Tr. 10595 and Shiffer Testimony following 21 Tr. 10604. U 22 Joint Intervenors argue nonsensically that the j 23 ASLB's reliance on risk reduction factors sanctions n ) 24 noncompliance with Comission regulations. As pointed out, 25 full compliance with the Commission's new emergency planning i 26 regulations and Appendix E is not required for fuel loading l I l I,
t 1 and low power testing. 10 C.F.R. 9 50.47(c)(1). What is 2 required is a conclusion based on competent evidence in the 3 record that onsite and offsite emergency preparedness 4 provides reasonable assurance of radiological protection to 5 the public. 10 C.F.R. $$ 50.47/,a), 50.47(c). 6 The ASLB concluded that "the deficiencies in the 7 PGandE, local and state plans are not significant for 8 operation of Diablo Canyon at power levels not to exceed 9 five percent of full power. " Low Power Decision at 51. 10 Thus, the ASLB has made the proper findings required by 10 11 C.F.R. 9 50.47(c)(1) to justify lesu dian full compliance 12 with the requirements for 5 50.47(b), and the Board properly 13 found that the level of emergency preparedness meets the 14 standard of 10 C.F.R. S 50.47(a). Low Power Decision at 15 50-51. 16 4. Consideration Of The Effects Of An Earthquake In The Diablo Canyon 17 Emergency Plans Is Not Required For Issuance Of A Fuel Loading And Low 18 Power Test License. 19 Joint Intervenors' claim that emergency 20 preparedness is inadequate becausa of the failure of the 21 plans to consider the effects of w. earthquake (Brief at 22 53-54) is fallacious for two rearans: (a)' emergency plan 23 consideration of the effects of an earthquake is not 24 required by Commission regulation for full power operation, 25 much less low power; and (b) Joint Intervenors fail to 26 accept the proven fact that the risks associated with low l . t
1 power testing are significantly reduced from the risk 2 associated with full power operation. There is, therefore, 3 no basis either factually or legally to require considera-4 tion in the Diablo Canyon emergency plans for low power 5 testing of the effects of an earthquake. 6 Nowhere in the Commission regulations is there a 7 requirement that emergency plans for full power operation 8 must consider the effects of an earthquake. Such a 9 requirement does not appear anywhere in section 50.47, 10 Appendix E, NUREG-0654 or in NUREG-0737. Both FEMA and the 11 Staff have requasted PGandE to address protective actions 12 and implementation of emergency plans during an earthquake 13 for full power operation. PGandE agreed to provide such 14 analysis (Low Power Decision at 47), and the analysis was 15 submitted to the NRC on September 15, 1981. 16 Moreover, such a consideration is unnecessary to 17 provide the measure of protection to the public health and l 18 safety for low power tests required by 10 C.F.R. 5 50.47(a). 19 Again, Joint Intervenors myopically focus only on artificial 20 consequences, and ignore the fact that probability and risk 21 are inseparable from consequences. Joint Intervenors also 22 ignore the fact that because of various risk reduction 23 factors the overall risk to the public from accidents during 24 low power testing is greatly reduced as compared to full 25 power operations. These factors include the very low 26 population density and limited size of the LPZ which l l
i n 1 significantly reduces the magnitude and complexity of the 2 effort required to protect that population in the extremely 3 unlikely event of a low power radiological emergency (Low 4 Power Decision at 45), and the significantly increased time 5 available for emergency actions and for operators to correct 6 the loss of important safety systems. Brunot Testimony 7 following Tr. 10595, at 6-7; Shiffer Testimony following Tr. 8 at 33-37; Lauben Testimony following Tr. 11014, at 2. 9 Finally, Joint Intervenors' reliance upon an ASLB 10 order entered in the San Onofre licensing proceedings is 11 misplaced. S'outhern California Edison Co. (San Onofre 12 Nuclear Generating Station, Units 2 and 3), ASLB Order 13 (July 29, 1981). First, that Order was issued in a full 14 power proceeding, and PGandE has agreed to study the effects 15 of an earthquake on emergency plans for full power opera-16 tion. Second, this Order is net dispositive for full power 17 on this issue even at San Onofre, for the Commission has 18 taken under consideration the question of whether the con-19 sideration of earthquakes is required in the San Onofre 20 emergency plans. Southern California Edison Co. (San Onofre 21 Nuclear Generating Station, Units 2 and 3) CLI-81, NRC 22 (Sept. 18, 1981), a copy of which is attached as Exhibit A. 23 The ASLB's conclusion that the radiological 24 protection provided by both offsite and onsite emergency 25 preparedness provides reasonable assurance that the public 26 health and safety will be protected during low power testing -
i 1 is fully supported by the record. Joint Intervenors' appeal 2 on this issue must be dismissed. 3 D. The ASLB Properly Found That All Appli-cable Environmental Regulations Have 4 Been Complied With. 5 The Joint Intervenors complain of two alleged 6 failures to comply with the NRC's regulations implementing 7 the National Environmental Policy Act ("NEPA"). First,- 8 . Joint Intervenors argue that the environmental consequences 9 of a Class 9 accident must be evaluated in the Diablo Canyon 10 environmental impact statement ("EIS"). Brief at 56-57. 11
- Second, in an astonishing bit of sophistry, Joint 12 Intervenors argue that despite the conceded existence of an 13 EIS for full power operation, an additional and separate 14 environmental appraisal or EIS must be conducted solely to 15 evaluate the environmental impacts of fuel loading and low 16 power testing.
Both arguments lack merit. M. at 57-60. 17 1. The ASLB Did Not Err In Refusing To l Analyze The Environmental Conse-l 18 quences Of A Class 9 Accident. 19 Joint Intervenors imply in their Brief that the 20 ASLB has failed to comply with the Commission's recent NEPA 21 policy statement and that therefore the ASLB erred in 22 refusing to reopen the environmental record. Although 23 invalid, this argument at least allows the Intervenors to 24 avoid asking this Appeal Board to declare Commission policy 25 to be illegal. Nevertheless, that is, in essence, their 1 i 26 request. The ASLB has complied completely with Commission ! l l
t 1 policy with respect to Class 9 accidents, and its recent 2 June 19, 1981 Order in which it refused to reopen the closed 3 Diablo Canyon environmental record is proper both in fact 4 and law. 22/ 5 on May 16, 1980 the NRC adopted a statement of 6 interim policy concerning the consideration hypodletical 7 nuclear accidents are to be given in environmental 8 statements prepared in conjunction with NRC licensing 9 proceedings. Nuclear Power Plant Accident Considerations 10 Under the National Environmental Policy Act of 1969, 11 45 Fed. Reg. 40101 (June 13, 1980) ["NEPA Policy Statement"]. 12 This policy was adopted in furtherance of the NRC's ongoing 13 efforts to develop a coordinated regulatory policy for 14 accident considerations, not only with respect to NEPA, but 15 more broadly in carrying out its primary statutory 16 obligation to protect the public health and safety. 17 In the NEPA Policy Statement, the NRC withdrew 18 from future use the Proposed A . < to Appendix D of 10 19 C.F.R. Part 50, 36 Fed. Reg. 24651 (December 1, 1971) 20 [" Proposed Annex"] and directed that future environmental 21 statements include " considerations of the site-specific 22 environmental impacts attributable to accident sequences 23 24 2y Pacific Gas and Electric Company (Diablo Canyon Nuclear Power
- Plant, Units 1 and 2),
Memorandum and Order 25 Denying Joint Intervenors' Motion To Reopen Euviron-mental Record For Consideration Of Class 9 Accidents, 26 (ALSB, June 19, 1981) (" June 19, 1981 Order"). -
1 that lead to releases of radiation and/or radioactive 2 materials, including sequences that can result in inadequate 3 cooling of reactor fuel and to melting of the reactor core." 4 NEPA Policy Statement, 45 Fed. Reg. at 40103. 5 The NRC specifically limited this policy directive 6 to those licensing proceedings in which a final EIS had not 7 been issued prior to July 1, 1980. Id. The NEPA Policy 8 Statement therefore does not require a revision of final 9 EIS's (such as the Diablo Canyon EIS) which, in accordance 10 with previous NRC policy as expressed in the Proposed Annex, 11 did not assess the environmental consequences of 12 radiological releases from so-called Class 9 acciuents. 13 Diablo Canyon's EIS was final long prior to June 1980. 23/ 14 Accordingly, the new NEPA Policy Statement is inapplicable 15 to Diablo Canyon and does not require reopening of the 16 Diablo Canyon environmental record in the absence of special 17 circumstances. 18 Since the Commission's new NEPA policy is 19 inapplicable to Diablo Canyon, Diablo Canyon's EIS is 20 controlled by the pol. icy which existed at the time it was 21 prepared. That policy, as expressed in the Proposed Annex, 22 did not require an analysis of the environmental 23 /// 24 23f Pacific Gas and Electric Compam (Diablo Canyon Nuclear 25 Power Plant, Units 1 and 2), LBP-78-19, 7 NRC 989, 1000 (1978), aff'd ALAB-644, 14 NRC (June 16, 1981), 26 petition for rev, pending on other issues. ' w- +,- o- --m + - - - - wg y-e,,
o 1 conseq;ences of Class 9 accidents because such accidents 2 were (and still are) onsidered extremely unlikely to occur. 3 The NRC 's past policy under the Proposed Annex has been 4 expressly approved by the federal courts. Carolina 5 Environmental Study Group v. United States, 510 F.2d. 796, 798-99 (D.C.Cir. 1975); Hodder v. Nuclear Regulatory 7 Commission, 9 ELR 20058 (D.C.Cir. 1978). 8 In' response to Joint Intervenors' motion, the ASLB 9 considered whether special circumstances existed to warrant 10 reopening the Diablo Canyon environmental record. The NRC 11 Staff has grouped special circumstances within three 12 categories: (1) high population density around the site, 13 (2) novel reactor design, or (3) a combination of a unique 14 design and a unique siting mode. Pacific Gas & Electric Co. 15 (Diablo Canyon Nuclear Power Plant, Units 1 & 2 ), DD-81-3, 16 13 NRC 349, 353-54 (1981); NEPA Policy Statement, 45, Fed. 17 Reg. at 40102. In addition to reviewing these three 18
- factors, the ASLB also examined whether a man-made or 19 natural hazard might exist which could require additional 20 environmental consideration.
June 19, 1981 Order at 2. 21 Based on this Appeal Board's recent conclusion that Diablo 22 Canyon is seismically safe 24/ and finding none of the l 23 /// l 24 24/ Pacifie: Gas and Electric Company (Diablo Canyon Nuclear 25 Power Plant, Units 1 and 2), ALAB-644, 14 NRC June 16, 1981), petition for rev. pending 26 issues. -on seismic l l l
1 listed factors existing at Diablo Canyon, the ASLB properly 2 concluded that no special circumstances exist which would 3 justify reopening the Diablo Canyon environmental record. 4 If. at 2-3. 5 Accordingly, an analysis of the environmental 6 consequences of a Class 9 accident at Diablo Canyon is not 7 warranted, and Joint Intervenors' appeal on this issue must j i 8 be rejected. 9 2. An Additional EIS or Environmental Appraisal Is Not Required Expressly 10 For Low Power Tests. 11 Joint Intervenors assert that despite the 12 existence of a final EIS evaluating the environmental 13 impacts of full power operation, somehow the Commission's 14 NEPA regulations also require an additional EIS or appraisal 15 evaluating the impacts of low power operation.
- However, 16 neither the letter nor intent of the Commission's pertinent 17 NEPA regulations require this exercise in futility.
The 18 existing Diablo Canyon EIS prepared for full power operation 19 fully satisfies the Commission's NEPA regulations. 20 10 C.F.R. S 51.5(a)(2) provides that an EIS must 21 be prepared prior to issuance of a full power operating i 22 license. This has, of course, been done. 10 C.F.R. p 23 $ Sl.5(b) states that certain other actions "may or may not 24 require preparation of an environm6nta'l impact statement, 25 depending upon the circumstances." These additional actions 26 include issuance of a low power license. 10 C.F.R. -
e 1 5 51.5(b)(3). Finally, 10 C.F.R. $ 51.5(c)(1) provides that 2 the environmental impacts, eter alia, of issuance of a low 3 power license, will be evaluated, and either an EIS or an 4 environmental impact appraisul prepared, "unless otherwise 5 determined cy 'he Commission." This section has been 6 complied with to the letter. 7 The environmental impact of proposed operation 8 under a low power license has quite clearly been evaluated. 9 Since the full power EIS necessarily envelopes all 10 environmental impacts associated with low power operation, 11 these
- pacts were evaluated during the preparation of the 12 full power EIS.
Maine Yankee Atomic Power Company (Maine 13 Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1014-15 14 (1973;, aff'd 7 AEC 2 (1974), aff'd sub nom. Citizens for 15 Safe Power, Inc. v. Nuclear Regulatory Commission, 524 F.2d. 16 1291, 1301 (D.C.Cir. 1975). 17 Moreover, the procedures set forth in 10 C.F.R. 18 s1.5(b) and (c) contemplate the absence o" a completed or 19 approved EIS for full power operation. As the ASLB noted, 20 motions for low power testing under 10 C.F.R. 6 50.57(c) 21 have generally been made prior to the closing of the full 22 power operating license proceedings. Prehearing Conference 23 Order, 13 NRC at 232-33. 2y It is, therefore, possible in 24 /// 25 2_5/ This point was also recognized by the Commission in its 26 April 1, 1981 Order. M. at 2. -
k 1 any given case that the Commission's NEPA regulations may 2 not have been fully complied with for issuance of a full 1 3 power license at the time the low power motion is made, and 4 it would then be necessary to assess the environmental 5 impact of low power testing. However, because of the rather 6 unusual posture of this proceeding, the motion for 7 authorization to load fuel and conduct low power tests was 8 made after the full power record was closed, and therefore 9 long after the full power EIS had been prepared and 10 approved. 11
- Finally, the two cases relied upon by Joint 12 Intervenors provide them no support.
In Natural Resources 13 Defense Council v. Nuclear Regulatory Commission, 539 F.2d. 14 824 (2d Cir. 1976), the court refused to permit the NRC to 15 grant interim licenses for the reprocessing of spent fuel 16 and for the use of reprocessed fuel in certain nuclear power 17 plants prior to completion of a generic environmental impact 18 statement on the mixed oxide fuel cycle. M. at 832-34, 19 841-46. In that case, unlike Diablo Canyon, no final 20 environmental impact statement had been prepared at all 21 prior to the proposed interim licensing. Id. The court 22 also noted that, again unlike the situation here, there was 23 essentially no difference between the scope of the 24 activities which would be authorized on an " interim" basis 25 and those activities which would be possible if the 26 Commission had simply allowed widescale reprocessing and use 1. ---.,c-., y 3 -,__-.m-__
1 of the fuel. Finally, the 7ctivities authorized under the 2 interim licenses would include construction of major 3 facilities and the commitment of huge sums of money. Id_. at 4 835, 843. J 5 In Diablo Canyon's case, a final EIS has been 6 prepared and approved. There will be no substantial 7 commitment of money or other resources solely by reason of a fuel loading and low power testing. An analogous 9 " irretrievable commitments of resources" to that in the 10 Natural Resources Defense Council case would, in our case, 11 mean the construction of a nuclear power plant without a 12 final EIS. 2_6/ 13 /// 14 /// 15 /// 16 2_6f Joint Intervenors also attempt to make out a case for 17 " irretrievable commitment of resources" on the ground that low power tests will cause " contamination" which 18 will " foreclose or substantially increase the cost of essential modifications of plant design or installation 19 of additional safety features." Brief at 59. There is no evidence in the record which would support such a 20 statement. In fact, the evidence is precisely to the contrary: the inventory of fission products from low l 21 power testing will be several orders of magnitude less ( than from full power operation. Low Power Decision at 22 24-35.
- Moreover, as set forth in the Affidavits of James O.
Schuyler and John M. Zupko, Jr. filed with 23 this Appeal Board on September 18, 1981 in support of PGandE's oppositions to the motions of Joint Inter-I l 24 venors and Governor Brown to stay the effectiveness of the ASLB's Low Power Decision, low power testing will 25 result in insignificant amounts of additional radiation which will not substantially increase the cost or 26 difficulty in performing modifications. - _ _ - _ _ _ _ _
1 Joint Intervenors' other case of Izaak Walton 2 League of_ America v. Schlesinger, 337 F.Supp. 287 (D.D.C. 3 1971) is equally inapplicable. In that case, the NRC 4 mroposed to issue an interim license for full power 5 operation without the preparation of any EIS whatsoever. 6 The ASLB has complied in all respects with the 7 Commission's NEPA regulations, and Joint Intervenors' appeal 8 on this issue has no merit. 9 E. The ASLB's Summary Disposition Of Con-tention 13 Was Proper. 10 11 In what must be a classic case of attempted 12 invited error, Joint Intervenors claim that they were 13 prevented from litigating the adequacy of the proposed 14 system to measure water level in the fuel assemblies. 27/ 15 They were in fact prevented from doing so, but the reason l 16 for this is that Joint Intervenors had specifically stated l 17 that they were concerned only with the time the system was J 18 installed, and the ASLB admitted the contention only on that 19 basis. Accordingly, not having moved to admit a late-filed l 20 contention, they cannot now be heard to argue that the l 21 ASLB's refusal to relieve them of their earlier agreement 22 constitutes error. 23 As the ASLB stated in its Prehearing Conference Order: 24 25 2y Contention 13, quoted in Joint Intervenors' Brief at 61 1 n.98. I 26 -
t 1 During discussion of the contention (Tr. 258-262) it was revealed that the 2 Intervenors' concern was that installa-tion of the indicator would not be 3 required until 1/1/82, rather than before fuel loading and low power 4 testing. With that understanding the Board accepts contention
- 13 as a
5 litigable issue. [13 NRC at 241; emphasis in original.] 6 7 At the prehearing conference, counsel for Joint 8 Intervenors (Mr. Reynolds, who 'also signed Joint 9 Intervenors' Brief) had this to say about what Joint 10 Intervenors wanted by way of contention 13: 11 I think that what we would require is that the time for implementation of 12 2.F.2 [ sic: II.F.2] not be January 1, 1982, but be prior to fuel load. [ Pre-13 hearing Conference Tr. at 262.] 28/ 14 It is therefore astounding that Joint Intervenors can, 15 presumably with a straight face, say that their concern "i_s_s 16 and has always been the need for" adequate instrumentation, 17 and that "[t]hroughout this proceeding, the mutual under-18 standing of the parties has been that contention 13 is 19 directed to the adequacy of the Diablo Canyon instrumenta-20 tion rather than simply the timing of installation. 21 Brief at 61-62; emphasis in original. This was not PGandE's 22 understanding, and, as the ASLB obviously knew and as Joint 23 Intervenors must know, this is just not true. 24 25 2y NUREG-0737 item II.F.2 requires that instruments for detection of inadequate core cooling be in-talled by 26 January 1, 1982. NUREG-0737, enclosure 2 at S. +
1 Furthermore, Joint Intervenors' dissatisfaction 2 with contention 13 is not only expedient, it is of recent 3 origin. On March 26, 1981, Joint Intervenors responded to 4 motions by PGandE and the NRC staff for directed 5 certification concerning the ASLB's Prehearing Conference 6 Order. 2y In that response Joint Intervenors not only 7 opposed the relief sought by PGandE (which requested, inter 8
- alia, that the five contentions admitted by the ASLB, 9
including contention 13, be rejected), but also asked the 10 Commission to reverse the ASLB's rulings on a number of I i 11 contentions the ASLB had rejected and to direct their 12 admission for litigation in the low power proceeding. 4 13 March 26, 1981 Response at 8, 74. Conspicuously absent from 14 this list of contentions as to which Joint Intervenors t 15 sought Commission relief is contention 13. 16
- Again, on April 22,
- 1981, Joint Intervenors 17 responded to PGandE and Staff motions to the ASLB to 18 reconsider the Prehearing Conference Order in light of the 19 Commission's April 1, 1981 Order, 3_0/
In that document, 20 Joint Intervenors argued that the Prehearing Conference 21 af 22 2_9/ Joint Intervenors' Response to NRC Staff's February 23, [ 23 1981 Request For Directed Certification And Pacific Gas and Electric Company's February 26, 1981 Request For 24 Directed Certification (March 26, 1981). 25 30/ Joint Intervenors'
Response
In Oppositi9n To NRC Staff's And Pacific Gas and Electric Compar.y's Motions j 26 For Reconsideration (April 22, 1981). j J -
l I 1 Order was correct to the extent the ASLB admitted certain 2 contentions (which included contention 13), and that the 3 ASLB should reconsider and admit the contentions it earlier 4 rejected in the Prehearing Conference Order. Contention 13 5 was not among the contentions they asked the ASLB to 6 reconsider. April 22, 1981 Response at 2, 6-7, 8, 11-13. 7 The conclusion is inescapable that at least 8 through April 22, 1981, Joint Intervenors were content to 9 live with the basi' on which the ASLB admitted contention 10 13. 11 PGandE moved for summary disposition of contention 12 13 on April 3,
- 1981, supporting that motion with an 13 affidavit certifying that the instruments called for by item 14 II.F.2 in NUREG-0737 would be installed prior to fuel load 15 at Diablo Canyon.
Pacific Gas and Electric Company (Diablo i 16 Canyon Nuclear Power Plant, Units 1 and 2), Memorandum And r i 17 Order (Granting PGandE's And Staff Motions For Summary 18 Disposition Of Joint Intervenors' Contentions 5 and 13; 19 Denying Their Motions As To Contentions 4 and 24) at 6 20 (Apr. 30, 1981). ( 21 For reasons known only to themselves, Joint 22 Intervenors chose to respond to PGandE's affidavit on 23 contention 13 with an affidavit raising an entirely 24 different issue, the adequacy of the system. Joint 25 Interrenors'
Response
In Opposition To NRC Staff And 26 [PGandEj Motions For Summary Disposition at 22-26 and 4.
1 attached affidavit of Gregory C. Minor (Apr. 27, 1981). 2 Joint Intervenors presented no evidence that the system 3 would not be installed when PGandE said it would be. Since 4 the evidence submitted by Joint Intervenors was irrelevant 5 to the contention and PGandE's evidence was undisputed, the 6 ASLB properly granted summary disposition. Summary 7 Disposition Order at 6. 8 After the ASLB granted summary disposition on 9 contention 13, Joint Intervenors moved for reconsideration, 10 in effect attempting to repudiate their statement at the 11 prehearing conference that their only concern was timing. 12 In support of this motion, Joint Intervenors advanced the 13 same arguments they do in their Brief, and their appeal on 14 this issue should meet the same fate as did their motion to 15 reconsider: it was denied. Pacific Gas and Electric 16 Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 17 Memorandum And Order (Denying Motions For Reconsideration Of 18 The Disposition Of Contention 13) (May 11, 1981) ("May ll, 19 1981 Order"). 20 In the May 11, 1981 Order, the ASLB referred to 21 the basis on which the contention had been admitted, and 22 correctly noted that Joint Intervenors " raise untimely new 23 issues regarding the adequacy of PGandE's proposed water l 24 level indication system." At 2. It then denied the motion. 25 At no time have Joint Intervenors made the 26 slightest attempt to move for admission of a late-filed l l I
1 contention,
- and, of course, have failed to meet the 2
requisite standards (10 C.F.R. 5 2.714(a)(1)(i)-(v)) even i 3 though they were expressly advised of the availability of 4 that procedure. April 1, 1981 Order, 13 NRC at 363-65. 5 They cannot now be permitted to create error by agreeing to 6 the issue raised by their own contention, opposing PGandE's 7 response to that contention on a different issue not raised 8 by the contention, then arguing that the ASLB should have 9 reframed the contention (without even having been requested 10 to do so) at the eleventh hour after discovery had been 11 completed, simply because Joint Intervenors chose to attempt 12 to litigate a different issue. Joint Intervenors' appeal 13 concerning contention 13 must be rejected. 14 F. There Is No Basis For Requiring Relief, Safety And Block Valve Performance 15 Testing To Be Completed Prior To Fuel Loading And Low Power Testing. 16 17 Joint Intervenors argue that the ASLB's decision 18 should be reversed because the performance testing of relief 19 and safety valves by the Electric Power Research Institute 20 ("EPRI") was not completed by July 1,1981, as contemplated f 21 by the ASLB. Low Power Decision at 56, 59-60. Basically, 22 Joint Intervenors argue that the performance tests must be 23 completed prior to fuel loading. However, there is no basis 24 for imposing such a requirement, for, as the ASLB found, 25 failure of these valves would not endanger the public health 26 and safety at low power operation. Low Power Decision -
t 1 at 57-58. 3_1/ Joint Intervenors' Brief does not dispute the l 1 2 ASLB's findings in this regard. 3 Specifically, the ASLB found as follows: 4 Westinghouse has performed analyses of i postulated [ loss-of -coolant accident] 5 LOCAs in tha pressurizer vapor space for a plant substantially identical to the 6 Diablo Canyon Plant. These analyses were performed for 100% power level. 7 (Gottshall-Muench Testimony following Tr. 11157, p. 7; Tr. 11189-11191). The 8 analyses usumed that the three PORVs stuck completely open and that the block 9 valves failed to close. Similar analy-ses enveloped the extremely unlikely 10 case that the three pressurizer safety valves were stuck completely open. In 11 all instances, no core uncovery was predicted to occur (id., pp. 7, 8; Tr. 12 11189-11191). In short, even if all three of each type of valve were 13 postulated to fail completely open the public health and safety would not be 14 endangered. 15
- Thus, according to the witness com-pletion of additional testing of safety 16 valves, PORVs, and block valves is not required prior to fuel load, low power 17
- testing, or full power operation at Diablo Canyon (Id., p. 8; Cherney Testi-18 mony following Tr. 11216, pp. 13, 14).
19 /// 20 /// 21 /// 22 23 24 31/ Neither Joint Intervenors nor Governor Brown presented any testimony at all concerning the valve contention 25 (Low Power Decision at 52); therefore, the evidence on the lack of safety significance of the valves at low 26 power is uncontradicted. I J
1 Westinghouse has conducted a survey of Westinghouse-designed operating plants 2 in the United States. This survey covered plants with a total of 181 3 reactor years of operation through October 1980, and included valves of the 4 type used at Diablo Canyon. No instan-ces of failure of safety, PORV, or block 5 valves were reported by the owners of these plants and none has been reported 6 since the time of the survey. (Id., pp. 3, 5, 6; Tr. 11189). [ Low Power Deci-7 sion at 57-58; footnote omitted.] 8 Additionally, the ASLB found that a failure of the block 9 valve would also have no safety significance for low power 10 tests. M. at 57. 11 Finally, the ASLB found that the reliability of 12 the valves had been demonstrated tnrough design and other 13 testing, and that the valves comply with all applicable 14 regulatory requirements. M. at 54-55, 59-60. 15 In short, the failure to complete the EPRI test 16 program on the relief and safety valves prior to July 1, 17 1981 has no safety significance for fuel loading and low 18 power testing. There is no merit to Joint Intervenors' 19 appeal on this issue. 20 III 21 CONCLUSION 22 Joint Intervenors repeatedly argue that this is a 23 " novel" case, and that their appeal will test the adequacy 24 of the Commission's response to the TMI accident. This is 25 true only if this Appeal Board accepts Joint Intervenor.s ' 26 invitation to rule that various Commission policies duly -.
i 1 promulgated in responsa to TMI are illegal and should not be 2 followed. 3 This is not the role of this Appeal Board. Its 4 only role is to determine if the ASLB correctly applied 5 Commission policies and regulations, and whether the low 6 power record adequately supports the Low Power Decision. 7 Such a review by this Appeal Board warrants only one 8 conclusion: the July 17, 1981 Low Power Decision must be 9 affirmed. 10 Dated: October 7, 1981. 11 Respectfully submitted, 12 MALCOLM H. FURBUSH PHILIP A. CRANE, JR. 13 DOUGLAS A. OGLESBY F. RONALD LAUPHEIMER 14 Pacific Gas and Electric Company P.O. Box 7442 15 San Francisco, California 94120 (415) 781-4211 16 ARTHUR C. GEHR 17 Snell & Wilmer 3100 Valley Center 18 Phoenix, Arizona 85073 (602) 257-7288 19 BRUCE NORTON 20 Norton, Burke, Berry & French, P.C. 3216 N. Third Street 21 Suite 300 Phoenix, Arizona 85012-2699 22 (602) 264-0033 23 Attorneys for Pacific Gas and Electric Company 24 By_ 0 [ 26 Dou7 as A. Og]5sby 1
o a APPENDIX Joint Intervenors' Issues In Joint Intervenors' Brief Exceptions A. TMI - Related Contentions. 1. The ASLB improperly inter-7-9, 14-20, preted and applied the 23-24, Revised Policy Statement. 26-28, 42-43, Brief at 14-25. 53 1/ 2. The ASLB's interpretation None of the Revised Policy Statement denies Joint Intervenors rights under the Administrative Procedure Act and Atomic Energy Act. Brief at 25-37. B. Emergency Preparedness. 1. Compliance with 10 C.F.R. 72-78, 133-135, 5 50.47(b) and Appendix E is 166 required. Brief at 39-46. 2. The ASLB improperly relied on 81-101, i " generalized estimates of low 129-132, probability of accidents." 159-162 Brief at 46-52. 3. Emergency plans must consider 124 effects of an earthquake. Brief at 53-55. 1/ See n.4 at 7, supra. ~*
+ APPENDIX (continued) Joint Intervenors' Issues In Joint Intervenors' Brief Exceptions C. The ASLB Has Failed to Comply With NEPA. 1. A Class 9 accident analysis 49-52 is required. Brief at 56. 2. A Separate EIS or environmental 3-4 appraisal is required for low power testing. Brief at 57-60. D. Summary Disposition of Contention 13. 44, 46, 48 Brief at 60-63. E. Relief, Safety and Block Valve 136, 139, 147, Testing. Brief at 63-65. 149 Joint Intervenorc' Brief does not address tne following 94 exceptions: 1-2, 5-6, 10-13, 21-22, 25, 29-41, 45, 47, 54-71, 79-80, 102-123, 125-128, 137-138, 140-146, 148, 150-158, 163-165. -
..r
- ep UtilT[D STATES Or A':!.iticA L'
liUCLEAR RLGUI/.10RY (Or:'115510ft l UttnD C 0.'f:15510 fit RS: ame SEi'l C isS!'
- liunzio J. Palladino, Chairtaan Victor Gilinsi;y 0 6 tfIb!*tav
%.i/ ** Peter A. Bradford \\\\ '@bl.~ John f. Ahearne / 1hons5 fi. Rolicrts /g i f NP 2] {cg In the !!atter of SOUlllERis CAllf0RHJA E!Il50ll C0!? Ally, )h Doci;et rios. 50 361 OL et al. 50-362 OL 1 ,e i (Sus Onof) e.liuclear Generating h e: 56ation.,Qnits2and3) 4 ,y
- g..
fx h .lb ORDI R N .C ' 6.i 3. v. .j g The 00:::nission hcs decidcd to tal:e up on it s own the root issue posed liy the Atomic Safety and Iicensing Baaid in its sluly P9, August 7, and Scptcnaer 14, 1981 orders -- s;hether energency planning should lie concerned witit earthqual;cs at or htyond the safe shutdown carthqual.c \\ coupled with a rele.ase 'ia t ic.n of f s ite. Thr Conmission i:111 Q c onsider the brief s concerning icht ther this is an appropriate issu-aircady filed liy the parties with regarci to the sluly P9,' 1981 and August 7, 1981 orders in reviewing the question, lhe Connaission viso directs the San Onofre Doard to provide an explanation of why is l'c?ieves this is an cppropriate issue end what criteria it intends to use to judge acceptt.liility or edequacy. This explanation is to tie providcd within 14 days of the daic of this order. The licensing Board has referred thc reatter to the At09ic Seft.ty and Iicensing Appeal Oc.ard. Both Coards are directed to hold .\\.-{>{d,.:] lna tt.n y e P,'. U T t M ~p e nymq J. tL'.4.'f.a i EXHIBIT A '"- "' ' ~ - ~ ' ' _- Curs +n.'Rt m L y twL ..m..--.._- 9 .d1._ g g.y E
g 2 consideration of tleis issue in abeyance until furtlier order of the Coen i s s ion. It is so (!kDEf:LD. Tgh 'the Conorission [ b .e.:,2 % ~~ ~ $/J4UEL J (.illLi! ' Qdr 'g!.),e 'f14...; 4f'S
- j Secretary of he Conraiss f ore
',< ~. ?.: '. r. ~t: o <.,' v g
- z. '.y.c
- >. '.?
'.. : c. JK 4 :' f; +. 4 Da tt.d a t 1.'ashirston, DC, this [h day of Septcriscr,1901. O l [ e = "s
o ' /, ' sp UNITED STATES OF AMERICA -00rg y NUCLEAR REGULATORY COMMISSION csigg GCf ~ 3 toGt} Le BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BO M f$ c@f$M + In the Matter of ) c,j j PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 ) 50-323 (Diablo Canyon Power Plant, ) Units 1 and 2) ) ) CERTIFICATE OF SERVICE I hereby certify that copies of the " PACIFIC GAS AND ELECTRIC COMPANY'S BRIEF IN OPPOSITION TO JOINT INTERVENORS' EXCEPTIONS TO THE LOW "OWER DECISION" have been served to the following on October 7, 1981, by U.S. mail, first class, except as otherwise noted. Thomas S. Moore Esq. (*) Judge John F. Wolf Chairmnn Chairman Atomic Safety and Licensing Atomic Safetv and Licensing Board Appeal Board U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Judge Glenn O. Bright Dr. W. Reed Johnson (*) Atomic Safety and Licensing Board Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Appeal Board Washington, D.C. 20555 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Judge Jerry R. Kline Atomic Safety and Licensing Board Dr. John H. Buck (*) U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board U. S. Nuclear Regulatory Commission Mrs. Elizabeth Apfelberg Wachington, D.C. 20555 c/o Nancy Culver 192 Luneta Drive Chairman San Luis Obispo, California 93401 Atomic Safety and Licensing Appeal Panel Janice E. Kerr, Esq. U. S. Nuclear Regulatory Commission Public Otilities Commission Washington, D.C. 20555 of the State t< California. 5246 State Building 350 McAllister Street Chairman San Francisco, California 94102 Atomic Safety and Licensing Board Panel Mrs. Raye F.leming U.S. Nuclear Regulatory Commission 1920 Mattie Road Washington, D.C. 20555 Shell Beach, California 93449 l
o s Mr. Frederick Eissler Mr. Richard B. Hubbard Scsnic Shoreline Preservation MHB Technical Associates Conference, Inc. 1723 Hamilton Avenue, Suite K
- 623 More Mesa Drive San Jose, California 95125 Scnta Barbara, California 93105 Mr. Carl Neiberger Mre. Sandra A.
Silver Telegram Tribune 1760 Alisal Street P. O. Box 112 San Luis Obispo, California 93401 San Luis Obispo, California 93402 Mr. Gordon Silver Herbert H. Prown, Esq. 1760 Alisal Street Lawv.ence Coe Lanpher, Esq. San Luis Obispo, California 93401 Christopher B. Hanback, Esq. Hill, Chri=topher & Phillips John Phillips, Esq. 1900 M Street, N.W. Josl Reynolds, Esq. Washington, D.C. 20036 Canter for Law in the Public Interest 10203 Santa Monica Drive Byron S. Georgiou, Esq. Los Angeles, California 90067 Legal Affairs Secretary Governor's Office David S. Fleischaker, Esq. State Capitol P. O. Box 1178 Sacramento, California 95814 Oklahoma City, Oklahoma 73102 Arthur C. Gehr, Esq. Snsll & Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 Bruce Norton, Esq. Norton, Burke, Berry & French 3216 North Third street Suite 300 Phoenir., Arizona 85012 Secretary (*) (2) U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn.: Docketing and Service Section William J. Olmstead, Esq. Charles Barth, Esq. Edward G. Ketchen, Esq. Lucinda Low Swartz, Esq. Office of Executive Legal Director .c / 4 h t/^,e ' ,/ BETH 042 ./ U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Douglas A. Oglesby Attorney for ( Pacific Gas and Electric' ompany Dated: October 7, 1981 l (*) By Courier service [ ,m .}}