ML20031E133
| ML20031E133 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/07/1981 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8110150128 | |
| Download: ML20031E133 (30) | |
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UNITED STATES OF AMERICA 6
NUCLEAR REGULATORY COMMISSION g
BEFORE TIIE ATOMIC SAFETY AND LICENSING __ APPEAL BOARD In the Matter of
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Docket Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY
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50-323 0.L.
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(Diablo Canyon Nuclear Power
)
Plant, Unit Nos. I and 2)
)
(Low Power Proceeding)
A RESPONSE OF LICENSEE PACIFIC GAS AND ELECTRI f*
d'N*l\\f'h p-9!
COMPANY TO BRIEF OF GOVERNOR BROWN ON APPEAL C} '"
Tile LICENSING BOARD'S PARTIAL INITI AL I
DECISION OF JULY 17, 1981 T
OCT141981* L b
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A' Y/
MALCOLM H.
FURBUS!!
ARTHUR C. GEHR PHILIP A.
CRANE, JR.
Snell & Wilmer (G
Pacific Gas and Electric Company 3100 Valley Bank Center 77 Beale Street Phoenix, AZ 85073 San Francisco, CA 94106 (602)257-7288 (415)781-4211 BRUCE NORTON Norton, Burke, Berry & French, P.C.
3216 N. Third Street, #300 Phoenix, AZ 850lj i
(602)264-0033
(
l Attorneys for Licensee PACIFIC GAS t.ND ELECTRIC COMPANY October 7, 1981 1
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1 TABLE OF CONTENTS Caption Page Table of Authorities ii I.
Background
1 II.
10 C.F.R.
S50.47 Has Been Complied With For Purposes of Low Power 2
A.
Distinction Between Low Power Testing And Full Power Operation.
3 B.
The 16 Standards Of 10 C.F.R. S50.47(b)
Have Been Complied With To The Extent Required for Low Power Testing 5
C.
The Record Shows That Existing Emergency Planning And Preparedness For Low Power Testing Will Protect The Health And Safety of,The People.
12 III.
The Licensing Board Properly Excluded Certain Proposed Contentions And Subject Matters 14 IV.
Summary Disposition Of Governor Brown's Subject 13 Was Proper 23 V.
No Additional Environmental Impact Statement Or Appraisal For Low Power Testing Is Required.
24 VI.
Conclusion.
26 Appendix A,
1 3
TABLE OF AUTIIORITIES Case 3 P_a g_e a
Citizens for Safe Power, Inc. v. Nr ar..g_ulatory
-~
Tf5 )
25 Commission, 524 F.2d 1391, 1301 lD.C.
Cir.
l Administrative Decisions Carolina P_ower and _L_ig_h_t__ Company (Sharon liarris Nuclear Power Plant, Units 1, 2,_ 3 and 4), CLI-79-10, 10 NRC 675 (1979) 18 Houston _Lh h_tinL and_ Power _ Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 386 (1979) 18 Kansas _ Gas _&_ Electric Compan_y (Wolf Creek Generating StatTon Unit No. 1), _ALAB-462, 7 NRC 320, 337-38 (1978) 18, 19 Maine Yankee Atomic Power _C_ompany (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1014-15 (1973), aff'd 7 AEC (1974) 25 Metropolitan Edison Company (Three Mile Island Nuclear SEEETon, Un ft 2), ALAB-486, 8 NRC 9, 21-22 (1978) 18 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LDP-78-19, 14 NRC
-~~
(July 17, 1981) ("PID")
1, 3,
5, 7, 8, 9, 10, 11, 12, 13, 14, 17 Pacific Gas and Electric Compa_n,y (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 31 ?;RC 361 (1981)
(" April 1, 1981 Order")
15 l
Pacific Gas and Electric C_ompany_ (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-5, 13 NRC 226 (1980) ("Prehearing Conference Order") ("Prh. Cnf.
Order")
16 17, 18, 20, 21, 22, 23, 24, 36 Public Service _ Company,_of_New Ilampsh_ ire (Seabrook Station, UnT~ts 1 and 2), _CLI-80-33, NRC C.C.H. Nuc. Reg. Rep. 1130, 53'3 at 29,600 TUep t'.
25, 1980) 18
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CODE OF FEDERAL REGULATIONS Pag _e_
10 C.F.R. f2.714(a) 16, 20 10 C.F.R. S2.714(a)(1) 17 24 10 C.F.R.
S2.714(a)(1)(i)-(v) 10 C.F.R. S2.762 2
10 C.F.R. SSI.5(a)(2) 25 10 C.F.R. SSI.5(b) 25 10 C.F.R. S51.5(b)(3) 25 10 C.F.R. S51.5(c)(1) 25 10 C.F.R. S50.47 1,
2, 3,
10, 12 10 C.F.R. S50.47(b) 3, 5, 6,
8, 9
10 C.F.R. S50.47(c)(1) 8 10 C.F.R. S50.57(c) 22, 25 i
l
-iii-
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MISCELLANEOUS Page_
j
" Clarification of TMI Action Plan Requirements,"
15, 16, NUREG-0737 (November, 1980) 17, 19, -
20 Governor Brown's Brief.
6, 8
" Earthquake Emeigency P.1.anning at Diablo Canyon,"
Three Volumes, TERA Corporation.
11 "TMI-Related Requirements For New Operating Licenses,"
NUREC-0694 (June, 1980) 15 I
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B,ackg round On July 17, 1981 the Atomic Safety and Licensing Board
("ASLB") issued its Part1J.1 Initial Decision authorizing fuel loading and low power testing for Diablo Canyon.1/
On August 3,
1981 i
Governor Brown filed 143 exceptions to that decision.
On September 2,
1981 Governor Brown filed his brief in support of those exceptions.
In his brief, the Governor alleges four basic-errors:
1.
Non-compliance with 10 C.F.R. S50.47.
2.
The ASLB's rejection of certain proposed contentions.
3.
The summary dispositon by the ASLB of a
contention dealing with reactor vessel water level indication system.
4.
Non-compliance by the Nuclear Regulatory Commission Staff
(" Staff")
with federal law regarding the preparation of an environmental impact appraisal.
The Governor's brief, juxtaposed to the decision
- below, results in a patent obfuscation of the record.
The brief, due to the disorganized presentation of material and constant repetition, is I
difficult, if not impossible, to follow.
For example, the Governor 1/ acific Gas and Electric Company (Diablo~ Canyon Nuclear P
Power Plant, Units 1 and 2), LBP-78-19, 14 IIRC (July 17, 1981)
("PID").
d
never alludes to even one of the 143 exceptions he filed on August 3, 1981.
Licensee has laboriously attempted to
" track" the 143 exceptions to determine which have even arguably been briefed by the Governor.2/
The Grvernor has totally ignored the very requirements of 10 C.F.R.
S2.762 under which his exceptions and brief in support thereof were filed.
That section requires the following:
The brief shall be cor> fined to a consideration of the exceptions previcosly filed by the party and, with respeut to each exception shall
- specify, inter alia, the precise portion of the record relied upon in support of the assertion of error.
(Emphasis added.)
The exceptions which are not briefed by the Governor have apparently been abandoned and should be summarily denied.
As the Governor has not cited even a single exception l'n his brief, the Licensee is left with little choice but tc _espond to the four generalized assignments of error as set forth abcVe and to ignore, as did the
- Governor, the 143 exce'ptions previously filed.
II 10 C.F.R.
S50.47 lias Been Complied With For Purposes of Low Power Governor Brown's treatment of the applicability of 10 C.F.R.
S50.47 and the record below as it pertains thereto is a
mixture of half-truths, misrepresentations, and a
thought process
-_/ Attached to this response is Appendix A
which sets 2
forth numerically the exceptions which were not addressed even-indirectly in the Governor's brief. i 3
e n-r.
~
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which defies logic.
In discussing the requirements of 10 C.F.R.
S50.47 the Governor ignores (1) the distinction between low power testing and full power operation; (2) the fact that the 16 standards of S50.47(b) have been met for low power testing; and (3) the record below (when convenient) and the Governor manifestly misleads-this Board in so doing.
A.
Distinction Between Low Power Testing and Full Power Operation.
The Board in its Partial Initial Decision correctly stated that all parties agree that the current emergency plans do not comply with 10 C.F.R. S50.47(b) for full power operation.3/ Governor Brown enjoys paraphrasing this finding by not mentioning the underscored portion and repeatedly attempts to mislead this Board by not bothering to mention the fact that for purposes of low power testing full compliance with the 16 standards of S50.47(b) is not necessary to protect the public health and safety.
The Board fo'nd "that emergency planning for fuel loading and low power testing must be sufficient to confer the same level of protection to the public as afforded by full compliance with the regulations at full power operation.1/
Thus, the Board recognized the valid distinction between fuel loading-low power testing and full power operation.
Dr. Brunot, an unchallenged and eminently qualified expert witness, concluded that the factors decreasing risk are much greater
'3/PID, slip op., p.
18 (emphasis added).
A/PI D, slip, op, p.
- 24....
i than those tending to increase risk at low power and the overall risk of events leading to accidental release, as well as the quantity of any possible
- release, would be greatly reduced for. low power testing.E/
Dr. Brunot quantified the substantial reductions in risk at low power, in part, as follows:
1.
Lack of radioactive inventory at low power
( Wri tt'en testimony ff. Tr. 10,595 at 4-5, 11).
2.
Increased time available to take emergency action at Iow power (Id. at 11-13).
3.
During low power, the geographic area of concern is greatly reduced (Id. at 19-20).
Mr. Lauben, the Staff's expert in this
- area, found that three major factors contribute to a substantial reduction in risk for low power testing as compared to full power operation.5/
1.
More time for operators to correct the loss of important safety systems needed to mitigate relatively high risk events.
2.
There is reduction in risk associated with the significant postulated events durir.g low power.
3.
There is a reduction in required capacity of mitigating systems at low power.
The Board has correctly decided that at all. stages of j
planning, construction and operation, the same level of protection to the public must be maintained.
Based on all of the evidence i
i 1/ runot's written testimony ff. Tr. 10,595, pp. 5-9.
B 5/ auben's written testimony-ff. Tr. 11,014, p.
2.
L !
~
t presented, the Board found that the risk factors are different between fuel loading-low power testing and full power operation.
The Board then
- found, based on the evidence presented, that full compliance with the 16 planning standards of 10 C.F.R. S50.47(b) and the provisions of Appendix E are not required for fuel loading and low power testing at Diablo Canyon.
It is crystal clear that this finding did no-depreciate the level of protection afforded to the public at all stages of the project.
The Board gave setious consideration to all of the evidence presented and its conclusions are fully supported by the record.1/
B.
The 16 Standards Of 10 C.F.R.
S50.47(b) Have Been Complied With To the Extent Required For Low Power Testing.
The state of emergency planning and preparedness at Diablo Canyon for fuel loading and low power testing was fully considered by the Board.
It considered the testimony of Licensee witnesses J.D.
Shiffer, W.B. Skidmore, W.B.
Kaefer and R.
Patterson, Staff witness John R.
Sears, and the Sherif f of San Luis obispo
- County, George l
Whiting.
The Joint 'Intervenors and Governor Brown presented no witnesses regarding the 16 standards of 10 C.F.R. S50.47(b).
An example of Governor Brown's misrepresentation of the facts to this Board can, perhaps, be best illustrated by examining the following quote:
l 2/PID, slip op., pp. 24-35. l I
L
e PG&E did not even attempt to demonstrate on the required s ta nda rd-by-s ta nda rd basis why full compliance with the S
50.47(b) standards was not necessary."8/ ection 4
The record reflects tn-c the attorney for PGandE stated:
"At the very beginning of the
- hearing, Dr, Judge Bright asked that we go through the 16 points in Section 50.47(b).
We are prepared to do that at this time.
I will ask the panel questions about these specific requirements."
(Tr. 10,821-22).
Compliance with each of 16 standards for purposes of low power was orally testified to on the record.2/
In addition,,
Mr.
Shiffer testified as to what particular parts of the prefiled written testimony indicated compliance regarding each standard for purposes of low power testing. Standard I was covered in the written testimony in sections 1, 6, 8, 11, 5.3 and 5.4 of the prefiled testimony.
(_ Tr.
10,824.)
Standard 2 was covered in the written testimony in sections 1,
5.2 and Implementing Procedures GA4. (Tr. 10,834.)
Standard 3 was covered in sections 1, 6 and 10.
(Tr.
10,835).
Standard 4
was covered in the written testimony in Implementing Procedures GA1._(Tr.
10,836.) Standard 5 was covered in sections 10, 4.1, 6.1, 6.2 and Implementing Procedures GA2. (Tr. 10,836.)
Standard 6 was covered in 8/ rown brief at p.
14.
B E/ Standard 1,
Tr.
10,824; Standard 2,
Tr.
10,833; Standard 3, Tr. 10,835; Standards 4, Tr.
10,835; Standard 5,
Tr.
10,836; Standard 6, Tr. 10,837; Standard 7, Tr. 10,844; S tanda rd 8,
Tr. 10,844; Standard 9, Tr. 10,845; Standard 10, Tr. 10,847; Standard 11, Tr. 10,849; Standard 12, Tr. 10,850; S ta nda rd 13, Tr.
10,858; Standard 14, Tr. 10,859; Standard 15, Tr. 10,859; Standard 16, Tr.
10,860.
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section 6 and Implementing Procedures GA2.
(Tr. 10,837.)
Standard 7
was covered in testimony by Mr. Shiffer.
(Tr. 10,837-44.) Standard 8
was covered in sections 2, 3,
4, 5 and Implementing Procedures GA7, 8
and 9.
(Tr. 10,845.)
Standard 9 was covered in sections 4, 7 and 4.3 and Exhibits 65, 67, 68 and 69.
(Tr. 10,845.) Standard 10 was covered in section 10 and R-2.
(Tr.
10,847.)
S tanda rd 11 was covered in Implementing Procedure R-2.
(Tr. 10,848.) Standard 12 was covered in section 10. (Tr. 10,850.)
Stt.ndard 13 was covered by section 9
and Emergency Procedure R-2.
(Tr. 10,858.)
Standard 14 was covered by section 9.
(Tr. 10,859.)
Standard 15 was covered by section 9.
(Tr.
10,859.)
Standard 16 was covered by the testimony of Mr.
Shiffer.
(Tr. 10,860-61.)
Detailed evidence was presented on the Licensee's omergency prepa red ness.}_0,/
The Board in its PID discussed in detail the evi-dence and testimony presented and considered in regard to the Licensee's emergency preparedness.11/
Based upon that evidence, the Board found that the current level of emergency planning by the Licensee and the county provides substantial radiological protection
'o the public which is at least equivalent to the protection which would be afforded by full compliance with emergency planning regula-tions at full power operation.12/
The Board further found that the deficiencies in the
- Licensee, local and state plans were not 1S/ Licensee written testimony ff. Tr. 10,604.
11/PID, slip'op, pp. 38-50.
12/I_d.
- 8
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significant for operation of Diablo Canyon at power levels tiot to exceed five.percen_ (5%) of full power.12/
i 10 C.F.R.
SSO.47(c)(1) provides:
" Failure to meet the standards set forth in paragraph (b) of this subsection may result in the Commission declining to-issue an ope ratit:g license, however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that. deficiencies in the plans are not significant for the plant in
- question, that adequate interim compensating actions have been or will be taken promptly or that there are other compelling reasons to permit plant operations."
Brown quotes the above in his Brief and
- then, in a
footnote, incorrectly states that the Licensee did not attempt to demonstrate any interim compensating actions" or
" compelling reasons" for allowing Diablo Canyon to operate.14/
Governor Brown i
never discusses the use of the word "may" in S50.47(c)(1).
The word i
"may" gives the Commission the desired flexibility and discretion it needs to address whatever diverse situations and circumstances exist at various times and places.
In light of the preceding discussion, it is respectfully i
submitted that emergency planning and preparedness -do satisfy the requirements-of 10 C.F.R.
S50.47(b) for purposes of maintaining the
]
required level of protection for fuel loading and low power testing.
Full compliance is not required at this s t:2ge to maintain the l
required-level of proten'!on for the public bealth and safety.
i 12/Id. at 51.
1A/ rown's brief at p.
13, fn. 36.
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i In addition to his attack regarding the 16 standards of-550.47(b), Governor Brown argues that there~1s no offsite emergency preparedness.
Governor Brown presented the testimony of two county i
officials, Dr. Mitchell and Mr. Jorgensen, who testified that the County had chosen not to implement the adopted County plan following the TMI accident and promulgation of current applicable regulations.
Iastead, the County has hired consultants and is in the process of adopting and implementing emergency plans which will comply with 1
applicable regulations in the future.
From this Governor Brown-argues that there is no plan for of fsite emergencies.
Governor Brown chooses to ignore an important fact.
The Sheriff of the County, as part of the old County plan which is still in effect, developed implementing procedures for. the evacuaticn of the LPZ and testified that he is ready, willing and able to carry these procedures out. (Tr. 11,321-35.)11/
The Governor's witnesses admitted that they had not addressed themselves to the question of emergency preparedness for purposes of low power and were not aware of the Sherif f's ianplementing procedures.15_/
The Sheriff's plan for notification and evacuation of the LPZ is sufficient to comply with 10 C.F.R.
S50.47 in that it is 15_/ overnor Brown argues that Sheriff Whiting should G
not have been allowed to testify for the reason that he was a
" surprise" rebuttal witness, i.e.,
not "a member of PGandE's direct testimony panel."
The Governor cites no authority for his position for the simple reason that none exists.
No treatise or case law on rebuttal evidence limits witnesses presenting rebuttal tes tiroony to those witnesses who have previously testified.
Sk/PID, slip op., pp. 49-50.
_9_
_ _ _ _ _ _ _ _ _ - _ - = - _ _ _ _ _ -
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compatible with maintaining the required level of protection to the public during fuel loading and low power testing.
The evidence. in l
the record fully supports this proposition and is referred to by the Board in its P1D.11/
The record is clear that the Board considered any opined deficiencies in the County plan and concluded that the deficiencies.
are not significant for operation of Diablo Canyon at power levels not to-exceed five percent'(5%) of full power.
This conclusion is fully supported by the record.dS/
Governor Brown also argues that the effects of earthquakea on emergency planning must be considered for purposes of low power testing.
While PEMA and the Staff have requested such an analysis for purposes of full power operation, no such request has been maJe for low power testing and none is required by any applicable
- law, regulation or regulatory guide for low or. full power operation.
Goveraor brown also ignores the fact that because of various risk reduction factors, the overall risk to the public from accidents during low power testing is greatly reduced as compared to full power operations.
These factors include the extremely low population density of the LPZ which significantly reduces the magnitude and complexity of the effort required to protect that population in the unlikely event of a
low power radiological emergency and the significantly increased ti.ne available for emergency actions and for 11/_I d_. at 46.
AS/PID, slip op., p.
- 51... _.. _. _ _. -.. ~... _ _. - _.... _ _.. _. _... _... _. _. _. _ _ _ -. - _ - _ _, _. _. _.... _. - _.. - _. _
operators to correct the loss of important safety systems.
(Brunot Testimony ff. Tr. 10,595, p. 6-7; Shif fer Testimony f f.
Tr.
10,595,
- p. 33-37; Lauben Testimony ff. Tr. 11,014, p.
2.)
The Staff has requested the Licensee to address protective action and implementation during an earthquake in the revised site plan for-full power operation and the Licensee has committed to provide the requested analysis.AS/
The Licensee will revise the emergency plan to include the consultants' recommer.dations.3S/
'the Hosgri fault has. been intensively analyzed.
The Diablo Canyon facility has been exhaustively reanalyzed and substantially modified to comply with the Commission's seismic design criterion on the basis of the safe shutdown earthquake (SSE) now postulated for the Hosgri fault.
The Hosgri postulated SSE is a design-basis earthquake which, by definition, is an earthquake the plant is designed to withstand as required by the Commission's seismic design criteria.
The Board gave more than sufficient consideration to the effect of earthquakes on emergency planning and preparedness necessary to maintain the requisite level of protection to the public.
The evidence in the record fully supports the Board's findings and conclusions in this regard.
1-E/PID, slip op., p.
47.
SS/The comprehensive three volume
- report,
" Earthquake Emergency Planning at Diablo Canyon", prepared by TERA corporation was submitted on September 1981.
L 1
Emergency planning and preparedness for Diablo Canyon is in corapliance with 10 C.F.R.
S50.47 in that it is compatible with l
maintaining the required level of protection to the puolic during fuel loading and low power testing.
The findings and conclusions of the Board in the PID are based upon and supported by the-record and should be sustained.
i C.
The Recor_d Shows That Existing Emergency _ Planning and Prepared-ness For Low Power Testing Will Protect T_be Health and Safet_y Of The P,eople.
The Board correctly started from the proposition that emergency planning for fuel loading and low power testing must be 1
sufficient to confer the same level of protection to the public as,
afforded by full cc
,1iance with the regulations at full power operation.2]/
The Board did not approach this decision making 3
process lightly.
It considered the testimony of Dr.
- Brunot, Mr.
I Lauben, Mr. Shiffer, Mr. Skidmore, Mr.
- Thefer, Mr.
Patterson and others in detail as set forth in the record and memorialized in the PID.22/ The Board considered Governor Brown's attorneys' analysis of thyroid doses and found no merit in it.23/
The state of the emergency planning was reviewed thoroughly by the Boa rd. 2,4,/
The state of the emergency preparedness of the Licensee, and the evidence thereof, was considered at length and in detail by the Board.21/
2_1/PID, slip op., p.
24.
2,2 Id. at 24-35.
2 3/ I_d_.at 34-35.
24/_I_d. at 36-38.
21/Id. a t 38-4 5.
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The Board considered specifically the evidence concerning safety organizations,21/
offsite emergency operation facility,23/ operational support center,22/
corporate incident response center,20,/
communications,21/
radiological monitoring,}2/ post accident sampling capability,22/
medical provisions and plan,2d/'public warning system,11/
fire' protection,25/ training and drills,21/ and evacuation plans.3,g/
The county emergency plat, was explored in detail by the
- Board, including the Sheriff's plan.
The testimony of PGandC was evaluated as was the testimony presented by Governor Brown's witneases.22/
2 21/ r.
following 10,604 (Shiffer), pp. 4-6.
T 22/I_d. at 7-9.
21/- d... at 10.
I 22/I_d. at 10.
2S/I._d. at 10.
i 21/Id. at 12-15.
-,2/Id. at 16'-20.
3 3,3/_I_d.. at 21-23.
2d/I.d... a t 24-25.
25/_I_d. at 26.
15/_Id.. at 27-29.
3.2/_I_d. at 30-32.
3,8,/_I_d. at 38-39.
39/PID, slip op.,
pp. 45-50.,
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From all of the testimony and evidence presented, the Board, after careful consideration and deliberation, found:
1.
Risks from fuel loading and low power are considerably reduced-from that of full power operation.
2.
The geographic area likely to be affected by a
radiological emergency is reduced in size.
3.
The current level of emergency planning on the part of the county and PGandC provides substantial radiological protection to the public which is at least equivalent to the protection af forded by full compliance with i
emergency planning at full power operation.
4.
Any deficiencies in the PGandC, local and state plans are not significant for operation of Diablo at powerlevelsnottoexceed5%offullpower.4{pnyon l
The activities authorized by the fuel loading and low power testing license can be conducted without endangering the health and safety of the public.
III
,The Licensing Bo_ard Proyerly,_ Excluded C_ertain Proposed Contentions antSubject Matters On December 3, 1980, Joint Intervenors and Governor Brown filed proposed contentions and a
list of subject
- matters, respectively.
After the filing of Responses by the Staff and Applicant, a prehearing conference was Feld on January 28.and 29, 1981, during which the respective posi: ions of the parties on the contentions and subjects were thoroughly aired.
A prehearing 4
a
- S/PID, slip. op., pp. 50-51.
4,
conference order was issued by the ASLB on February 13, 1981.11/
That Order set forth which of the contentions and subjects would be admitted for purposes of the low power hearing and specified the reasons for not allowing the remaining contentions and subjects.
All l.
parties to this proceeding objected'to that order in one fashion or another.dd/
In applying its interpretation of the Commission's policy statement on TMI,d2/ NUREG-0694 and its progeny, NUREG-0737, the ASLB admitted five of Joint Intervenor's proposed contentions and rejected fifteen.dd/
On April 1, 1981, the Commission, while not accepting the Requests for Certification, issued a clarification of its TMI Policy Statement.d5/
The April 1,
1981 Order of the Commission, coupled with the Commission's TMI Policy Statement makes 1
- - - - - - - = -
4I/
- - Pacific Gas and Electric Company _ (Diablo Canyon' Units 1 and 2),
LBP-81-5, 13 'ThfC 226 (1981)
("Preheuring Conference Order") ("Prh. Cnf. Order").
AS/ oint Intervenors' Notice of Objections to Board's J
Order of 2/13/81 filed 2/18/81, Staf f's Request for Directed Certification filed 2/23/81, Applican t 's Request for Directed Certification filed 2/26/81 and Notice of Objections to Board's Order of 2/13/81 filed 2/27/81 and Governor Brown's Request for Directed rettification filed 3/9/81.
Ad/ Statement of Policy; Further Commission Guidance for Power Reactor Operating Licenses,"
("TMI Policy Statement").
A4/ ome of the original proposed contentions were
-S withdrawn at the prehearing conference by Joint Intervenors.
i d5,/ aci[ic Gas and Electric Company (Diablo Canyon Power i
P Plant, Ur. i t s T~a nd-~f), Cl'I-gT-T,- CTinrC T6T T1981)
(" April 1,
1981 Order"). !
i
it clear that the ASLB's rejection of the contentions was proper.45/
After giving due regard for the rights of the including the right of any party to be heard to the parties.
extent that his contentions are relevant to the activity to be authorized,"
the Board determined as follows:
the whole purpose of the revised policy statement is to open the door to litigation of all NUREG-0737 requirements.
If NUREG-0737 is not to constitute good cause for both reopening the record and filing new contentions, the meaningless. *-jpey reviewed
.r -
statement becomes la rgely i
$1/It has been and still is Licensee's position that absent a showing of good cause under 10 C.F.R.
S2.714(a),
a showing which Intervenors and Governor Brown steadfastly refused to
- make, that none of the proposed contentions ur subjects were admissible. To simply allege that the proposed contem ion is related to TMF aad Diablo Canyon does not meet the criteria set out by tue Commission when it stated in its TliI Policy Statement that:
"The Commission believes that where the time fe r filing contentions has evpired in a given
- case, no new THI-relatOd contentions should be accepted 4
absent a showing of good caust and balancing of the factors in 10 CFR 2.714(a)(1). The Commission expects adherence to its-regulations in this 1
regard.
i l
"Also, present standards governing the reopening of hearing records to consider new evidence on TMI-related issues should be adhered to.
- Thus, for exa:nple, where initial deci61nns have been issued, the recoro should not be reopened to take evidence on some TMI-related issue unless the 1
party seeking reapening shows that there is significant new evidence, not included in the record, that materially affects the decision." 12 NRC 661.
Al/ rh. Cnf. Order, slip. op, p. 12.
P,
=-
The Bcord accepted a connection between NUREG-0737 and the contention as " good cause" for admitting new contentions if there was a nexus to Diablo Canyon and if the contention was "significant".
In doing so, the Board noted that neither the Governor nor the Joint Intervenors sought to establish good cause for admitting new contentions or NUREG-0737.AE/
reopening the record aside from their reliance on Therefore, the Board ruled that the proposed contentions and subjects would be viewed only in the context of NUREG-0737,il/
absent full compliance with the requirements of 10 C.F.R.
S2.714(a)(1) and the Appeal Board ruling in 7 NRC 320 (1978).ES/
Within the confines of the abovr., the Board ruled on each F
of the 27 contentions and 17 subjects and gave its reason for each ruling.51/
The Governor attacks all of the rejections of the subjects and contentions on the general basis that the Board erred in j
requiring a direct relation to NUREG-0737.
)
Because litigation must come to ac end at some
- point, a
i heavy burden is placed on those who seek to reopen a closed hearing record:
"[I]t must appear that reopening the proceeding miott alter the result in some material respect.
In che case of a motior. which is untimely without 4
good
- cause, the movant has an even greater i
burden; he must demonstrate not merely that the l
48/Id. at 13.
AS/I_d_.
ES/PID, slip op. p.
4.
E1/Prh. Cnf. Order, slip op., pp. 17-36. <
l issue is significant
- but, as
- well, that the matter is of such gravity that the public interest demands its further e/ploration.
[ Citations omitted.]
These criteria govern each issue to be reopened; the fortuitous circumstance that a proceeding has been or will be reopened on other issues has no signif.icance. [ Qt_ropolitan_
Edison Company (Three Mile Island Nucfear Station, Units 2),
ALAB-486, 8'
NRC 9,
21-22 (1978).]
See Kansas Gas & Electric Comga_ny (Wolf Creek Generating -Station, Unit No. 1), ALAB-462, 7 NRC 320, 337-38 (1978); Hous ton I ightinq_a,n,d, Power Comgang (Allens Creek Nuclear Generating
- Station, Unit 1),
ALAB-535, 9 NRC 377, 386 (1919) (limitations could even be placed on I
contentions submitted by new intervenors which are related to issues litigated in earlier hearings);
Public Service _Compar.y_ of New 1
Hampshire (Seabrook Station, Units 1 and 2), CLI-80-33, _
NRC C.C.H.
Nuc. Reg. Rep. 130,533.at 29,600 (Sept.
25, 1980)
(Chairman Ahearne stating the Commission's test for reopening closed records while dissenting).
The Diablo Canyon record was closed prior to the TMI accident.j2/
A record may be reopened only where there is newly discovered evidence or a material change in circumstances.
- Moreover, I
a motion to reopen must be accompanied with supporting evidence to show that it can affect the result of the earlier hearings.
A11 ens i-Creek Nuclear Generatin,q Station, supra, 9 NRC at 386; Carolina,_ Power and Light Comg_a_ny (Sharon Harris Nuclear Power Plant, Units 1,.
2, 3
}2/ rh. Cnf. Order, slip ep., p.
1.
~
P
' i I
l i,
and 4), CLI-79-10, 10 NRC 675 (1979).
As set forth
- suffy, the Commission did not deviate from this well-grounded principle in its TMI Policy State. ment.
In its April 1, 1981 Order further clarifying j
its policy, the Commission was equally clear:
"As we sta*ed in the Revised Policy Statement, i
where the tvidentiary record on safety issues has been closed, the record should not be reopened on TMI-related issues relating to either low or full power absent a showing, by the noving
- party, of nificant new evidence not included in the record, that materially affects the decision.'
This is in accord with longstanding Commission practice.
E.g_.
Kansas Gas & Electric Co., et al.
(Wolf Creek Generating Stat'1"on, linit l'),
M~EBT
~ ~ ~ ~
~
462, 7 URC 320, 338 (1978).
We emphasize that bare allegations or simple submission of new contentionn is not sufficient.
Only significant i
new evidence requires reopening.
(13 NRC at 362-63.)
With respect to NUREG-0737 safety requirements, the Commission provided
- that, although a
party may challenge the
]
sufficiency of a NUREG-0737 requirement, such permission does not i
allow a party to argue the need for safety measures not contained in J
l NUREG-0737.E3./
The April 1, 1981 Order emphasized that even as to challenges to the sufficiency of a NUREG-0737 requirement, the party l
must still meet the requirements both tor late-filed contentions and l
for reopening closed hearing records.5d./
Governor Brown attempts to show specific error by the Licensing Board and discusses the rejection of contentions 10, 12, i
and 18 and subjects 4, 6-12 and 14 [ sic).
As stated above, Licensee 1_3,/ pril 1, 1981 Order at 363-64.
A EA/_I_d_.
I l -.. - -... - - - - - -
fb '
1
(
f I
l believes that none of the contentions or proposed subjects should have been admitted because Joint Intervenors and Governor Brown failed to even attempt to meet the standards governing the reepening of a hearing record or of late-filed contentions.
Contention 10 involsed item II.E.3.1 of NUREG-0737, emergency power for pressurizer heaters. Joint Intervenors contended NUREG-0737 was not sufficient in that it did not require tha pressurizer heaters to be cla sa i f ied as components important to safety.55/
The Board rejected this contention for the
- reason, 4
inter alia, that Joint In te rvenors had made no showing that the contention had any bearing on fuel loading and low power testing at i
Diablo Canyon.55/
Contention 12 was denied as not being an attack j
on the sufficiency of NUREG-0737.
Neither the proposed contention i
nor discussion at the prehearing conference even referenced NUREG-t
[
0737.52/
Indeed, nothing accompanied the proposed contention other than the oral argument of counsel for Joint Intervenors who hardly
}
qualifies as an expert in these matters.EE/
Nonetheless, no attempt was made to show how this issue relate'd in any way to fuel loading and low power testing at Diablo Canyon.EE/
Contention 18 55/Prehearing Conference Transcript
("Prh.
Cnf.
Tr."),
I January 28-29, 1981, at 242.
2 55/Prh. Cnf. Order, slip op.,
p.
22.
52/Id. at 23.
ES[Prh. Cnf.
Tr., January 28-29, 1981, at 250-58.
l I
52/I_d.
i 4
was rejected by-the Licensing Board for the reason that neither the proposed contention nor the elabora..on by counsel on that contention showed in any way how the contention related to fuel loading and low power testing at Diablo Canyon,,i,. e,., there was no nexus.p0,/
Subject 4 questioned whether the Licensee would comply with certain NUREG-0694 requirements which had not been complied with prior to the publication of SER Supplement 10.
Governor Brown argues that the Board's rejection of this subject was tantamount to the Board's finding compliance with the requirements.51/
The subject was nothing more than a request to litigate whether the
- Licensee, then Applicant, would be required to meet the requirements.
In essence, the Board granted summary disposition of the subject in favor of the Governor when it ruled that all requirements "must be resolved before a license can issue."j2/
j Subjects 6-12, as proposed by Governor Brown, were based on the Licensee's Motion for Fuel Load and Low Power Testing and therefore, argues Governor Brown, must be admitted.
This "own words" theory has a
surficial charm
- but, upon examination, is pure sophistry.
Subjects 6, 7,
10 and 11 were based upen some of the Licensee's stated reasons for wanting the low power testing license.
In denying Subjects 6, 7,
10 and 11, the Board found inter alia, that a Licensee's reasons for desiring'to undertake the testing program 50,/ rh. Cnf. Order, slip op., p.
26.
P 11/ rown brief at 50, B
52_/ rh. Cnf. Order, slip op., p.
32.
P i
are not necessarily relevant to 10 C.F.R.
S50.57(c) requirements.
If the Licensee's reasons for desiring to undertake the testing program are not relevant then it is axiomatic that the issues raised in Subjects 6, 7,
10 and 11 are equally not relevant to 10 C.F.R.
S50.57(c) requirements.
The standard used by the Board was clearly a single standard and not a double standard as alleged by Brown.53/
Subjects 8, 9 and 12 were rejected on the basis that they lacked the necessary basis and specificity to be accepted.54/
Governor Brown does not address these reasons for rejection in his brief for the obvious reason that even a
cursory examination of the proposed subjects shows them to be incapable of being litigated.
For example, subject 8
proposes to put into specific litigation the all i
emcompassing question of whether the activity of low powr.r testing
'l l
"will not pose an undue risk to the health and safety of the public."
Finally, Governor Brown argues that subject 14 [ sic] should
(
have been admitted as a contention.
Subject 14 was.
It is apparent-however, that Governor Brown is arguing about subject 15.
Subject 15, like those discussed immediately above, was dismissed for lack of necessary basis and specificity.55/
While Governor Brown's present brief gives far more specificity than the Governor was willing to j
give the Board below, he still fails.
There is and was, among other t
things, no showing of any relationship between the subject and low power testing at Diablo Canyon.
55/Id. at 32-34.
54/Id_. at 3 3-3 4.
55/I_d_. at 35.
~r eu.,
The contentions and subjects rejected by the Licensing Board were properly excludeo from consideration.
Joint Intervenors and Governor Brown did not comply with any applicable requirements for reopening a - closed hearing record nor did they comply with. the stated Commission policy as to late filed contentions in raising TMI-related issues.
In fact, none of the contantions or subjects as Brown should have been raised by the Joint Intervenors and Govern admitted.
IV Summary Disposition of Governor Brown's Su g ct 13 Wa_s Proyer Governor Brown's subject 13 and Joint Intervenors'. proposed contention 13 were essentially the same.
Governor Brown was allowed to litigate this issue in the form in which Joint Intervenors' contention was accepted.E1/
Governor Brown has never objected to that procedural device.
Contention 13 deals with the water level indication system in the reactor and was addressed in item II.F.2 in NUREG-0737.
At the prehearing conference, Joint Intervenors' counsel stated:
"I think that what we would require is that the time for implementation of 2.F.2
[ sic:
II.F.2]
not be January 1,
- 1982, but be prior to fuel
~
load."
(Prb. Cuf. Tr. at 262.)
Governor Brosn did not object to that characterization at the prehearing conference nor at any time until he filed his exceptions 51/ rh. Cnf. Order, slip op.,
p.
35.
P 4 - - -
to the Partial Initial Decision.
The Board stated that it would accept the contention with the understanding that it was limited to the question of whether the Licensee would be required to have such a system installed prior to fuel load.52/
Neither Governor Brown's subject nor Joint Intervenors' contention raised the adequacy of the system to be used by Licensee.
The Licensee filed an af fidavit in support' of its Motion for Summary Judgment stating that requirement II.F.2 would indeed be-complied with prior to fuel load which rendered moot the contention as no opposition was ever made to' that fact.5S/
Governor Brown cannot now complain that he really intended to litigate a different issue.
His only avenue to do so was under 10 C.F.R.
S2.714(a)(1)(i)-(v), an avenue which he chose nct to follow.
V No Additional Environmental Impact Statement OF'Apyraisal For Low P_o_wer_ _Testin(Is RequEr~ed Governor Brown asserts that despite the existence of a
i final Environmental Impact Statement (EIS) evaluating the environ-mental impacts of full power operation, the Commission's NEPA regulations somehow require an additional EIS or appraisal evaluating the impacts of low power testing.
Neither the letter nor intent of the Commission's pertinent National Environmental Policy Act (NEPA) 51/_Id. at 23.
5E/ pplicant Pacific Gas and Electric Company's Motion A
for Summary Disposition filed April 3,
1981.,
i-regulations require this exercise in futility.
The existing Diablo t
Canyon EIS prepared for full power operation fully satisfies the Commission's NEPA regulations.
10 C.F.R.
S51.S(a)(2) provides that an EIS must be prepared i
prior to issuance of a full power operating license.
This
- has, of course, been done.
10 C.F.E.
S51.5(b) states that certain other actions "may or may not require preparation of an environmental J
impact statement, depending upon the circumstances."
These additional actions include issuance of a
low power license.
10 C.F.R.
S51.5(b)(3).
Finally, 10 C.F.R. 551.5(c)(1) provides that the environmental impacts, inter
- alia, of issuance of a
low power license, will be evaluated, and either an EIS or an environmental impact appraisal prepared.
This section has been complied with to the letter.
The environmental impact of proposed operation under a
low power license has quite clearly been evaluated.
Since the full.
power EIS necessarily envelopes all environmental impacts associated with low power operation, these impacts were evaluated during the preparation of the full power EIS.
Maine __ Yankee Atomic Power Comp,any, (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC
- 1003, 1014-15 (1973), aff'd 7 AEC 2 (1974), aff'd sub nom. Citizens for Safe Power, Inc. v. Nuclear Regulatory Commission. 524 F.2d 1291, 1301 (D.C. Cir.
1975).
Morcoever, the procedures set forth in 10 C. F.' R.
S51.5(b) and (c) contemplate the absence of a completed or approved EIS for full power operation.
As the Board below
- noted, motions for low power testing under 10 C.F.R. 550.57(c) have generally been made 1
-__._,___...,..._,_.,~.~-.,_..,..m,__,,,_
u_.
p_r_i_o r to the closing of the full power operating'
-license proceedings.59/
It is, therefore, possible in any given case that the Commission's NEPA regulations may not have been fully complied with for issuance of a full power license at the time the low power motion is made, and it would then be necessary to assess the environmental impact of low power testing.
However, because of the rather unusua' posture of this proceeding, the motion for authorization to load fuel and conduct low power tests was made after the full power EIS had been prepared, approved and considered by the Licensing Board.
The Licensing Board has properly rejected Governor Brown's insistence upon the preparation of an EIS or Appraisal for fuel load and low power testing at Diablo Canyon.
VI Conclusion Governor Brown's 143 exceptions to the Licensing Board's Partial Initial Decision of July 17, 1981 should be denied for the reasons set forth in this brief.
Respectfully submitted, f1ALCOLM H.
FURBUSH PHILIP A.
CRANE, JR.
Pacific Gas and Electric Company 77 Beale Street San Francisco, California. 94106 (415)781-4211
-- =------
51/ rh. Cnf. Order, slip op., p. 36.
P l l
1 1
r
,,..___,__~_,__._-,.,,..__,,-....,_...,__r..,
ARTilGR C. GEllR Snell & Wilmer 3100 Valley. Center Phoenix, Arizona 85073 (602)257-7288 BRUCE NORTON
'Norton, Burke, Berry & French, P.C.
3216 N. Third Street Suite'300 Phoenix, Arizona 85012 l
(602)264-0033 Attorneys for Pacific Gas and Electric Company By
_ _ _ Bruce Norton DATED:
October 7, 1981.
- l 1
i 0
APPENDIX A EXCEPTIONS NOT ADDRESSED 5,
6, 7, 8, 9,
11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 40, 31, 32, 33, 34, 35, 36, 37, 38, 42, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, JE, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 80, 81, 82, 85, 87, 88, 105, 138, 139, 140, 142, 143.
~
e.
UNITED STATES OF AMERICA NUCLEAR R2GULATORY COMMISSION 3EFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-275 PACIFIC GAS AND ELECTRIC COMPANY
-)
50-323
)
(Diablo Canyon Nuclear Power
)
Plant, Units No. 1 and 2)
)
CERTIFICATE OF SERVICE
+
I hereby certify that copies of " RESPONSE OF LICENSEE PACIFIC GAS AND ELECTRIC COMPANY TO BRIEF OF GOVERNOR BROWN ON APPEAL OF THE LICENSING BOARDS'S PARTIAL INITIAL DECISION OF JULY 17,
'1981,"
dated October /, 1981, have been' served on the following by deposit in the United States mail, postage prepaid, this 7th day of October, 1981:
Mr. Thomas S.
Moore, Chairman Gordon Silver Atomic Safety and Licensing.opeal Bd.
1760 Alisal Street U. S.
Nuclear Regula tory,
'n San Luis Obispo, CA 93401 4350 East West Highway Wa s hing to n,
D.C.
20014 Sandra A.
Silver 1760 Alisal Street Dr.
W.
Reed Johnson San Luis Obispo, CA 93401 Atomic Safety and Licensing Appeal Ud.
U.
S.
Nuclear Regulatory Comm'n John Phillips, Esq.
4350 East West Highway Center for Law in the j
Washington, D.C.
20014 Public Interest 10203 Santa Monica Drive Dr. John H. Buck Los Angeles, CA 90067 Atomic Safety and Licensing Appeal Bd.
U. S. Nuclear Regulatory Comm'n Mrs. Elizabeth Apfelberg 4350 East West Highway c/o Nancy Culver Washington, D.C.
20014 192 Luneta Drive San Luis Obispo, CA 93401 John F. Wolf, Esq., Chairman Atomic Safety and Licensing Board Mrs. Raye Fleming U. S.
Nuclear Regula tory Comm'n 1920 Mattie Road Washignton, D.C.
20555 Shell Beach, CA 93449 Mr. Glenn O.
Bright David F.
Fleischaker, Esq.
Atomic Safety and Licensing Board 1735 Eye Street, N.W.
U. S.
Nuclear Regulatory Comm'n Suite 709 Washington, D.C.
20555 Washington, D.C.
20006 Dr. Jerry R.
Kline Mr. Frederick Eissler Atomic Safety and Licensing Board Scenic Shoreline Preservation U. S.
Nuclear Regula tory Comm'n Conference, Inc.
{
Washington, D.C.
20555 4623 More Mesa Drive Santa Barbara, CA 93105
~_
-. o William J.
Olmstead, Esq.
Carl Neiburger Charles Barth', Esq.
P. O.
Box 112 Edward G. Ketchen, Esq.
San Luis Obispo, CA 93402 Lucinda Low Swartz, Esq.
Office of Executive Legal Director-
- BETH 042 U.
S. Nuclear Regulatory Comm'n Washington, D.C.
20555 J. Anthony Kline, Esq.
Byron S. Georgiou, Esq.
Legal Affairs Secretary Atomic Safety and Licensing Boarrl to the Governor Panel State of California U.
S. Nuclear Regulatory Comm'n State Capitol Building washington, D.C.
20555 Sacramento, CA 95814 Herbert H.
Brown, Esq.
Docketing and. Service Section Lawrence Coe Lanpher, Esq.
Office of the Secretary Hill, Christopher & Phillips U.
S.-Nuclear-Regulatory Comm'n 1900 M Street, N.W.
Washington, D.C.
20555 Washington, D. C. - 20036 Janice E.
Kerr, Esq.
Mr. Richard B.
Hubbard Lawrence Q. Garcia, Esq.
MHB Technical Associates 350 McAllister Street 1723 Hamilton Avenue, Suite K San Francisco, CA 94102 San Jose, CA 95125 wmar. r&/
/
for Bruce Norton
. 4 j
- -