ML20039C229
| ML20039C229 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/23/1981 |
| From: | Bright G, Kline J, Wolf J Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8112290084 | |
| Download: ML20039C229 (9) | |
Text
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e 00(. @i o us UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
-my crr' Before Administrative JudgesEX " @.515:
i'l John F. Wolf, Chairman Glenn 0. Brignt Dr. Jerry Kline smnu DEC % 81981
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In the Matter of:
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Docket Nos. 50-275 OL
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50-323 OL PACIFIC GAS AND ELECTRIC COMPANY
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(Diablo Canyon Nuclear Power Plant,
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Units 1 and 2)
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December 23, 198 W~ ~
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O(g SQ MEMORANDUM AND ORDER
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the members of the Board was held in the Nuclear Regulatory Courtroom in the East West Towers Building, Bethesda, Maryland.
Appearances were entered on behalf of the Applicant by Bruce Norton, Esq. and Philip Crane, Jr., Esq.; on behalf of the NRC Staff by William Olmstead, Esq.; on behalf of California Governor Brown, Lawrence Laupher, Esq. and Herbert H. Brown, Esq.; and on behalf of Joint Intervenors, Joel Reynolds, Esq.
I.
Impacts On Emergency Planning of Earthquakes.
The first question discussed was the effect of the Commission's holding in its San Onofre decision of December 8, 1981, CLI-81-33.
There the Commission held that current regulations do not require considerations of impacts on emergency p503
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.; planning of earthquakes which cause accidental radiological releases er which occur during such a release.
After the discussion the Board stated its conclusion that under the Commission's ruling no licensing board, including this one, has jurisdiction to consider impacts on emergency planning of earthquakes which cause or occur during an accidental radiological release.
- 11. Adequacy of FEMA's findings.
The NRC Staff contends that the memorandum of November 17, 1981 to Brian Grimes of NRC from Richard W. Krinn of FEMA contains the finding that FEMA has been providing in similar cases, which indicates the status of emergency planning at the site in question with regard to the planning standards in NUREG-0654.
Under 50.47(a)(1) NRC must give a rebuttable presumption to this FEMA i
finding.
The NRC Staff also points out that the Memorandum of Understanding between NRC and FEMA requires FEMA to make the 1
l findings contained in the memorandum of November 17, 1981.
It further stated that "the Commission has specifically, by adopting car emergency planning rules and referring to that Memorandum of Understanding its statement of considerations made it clear that it believes that that Memorandum of Understanding binds the NRC.
l If you refer to that Memorandan of Understanding it clearly indicates in these the procedure will be followed for FEMA to provide NRC findings with regard to NRC's duties under 50.47."
2 On the basis of established and approved procedure the Board will look to the Richard W. Krumm memorandum of November 17, 1981 as the FEMA finding needed to carry out 10 C.F.R. 50.47.
It is subject to being amended in the event that FEMA discovers new operative facts in subsequent hearings or tests.
No operating license shall issue until 10 C.F.R. 50.47 is fully complied witn.
In view of the Board's decision, stated above, Joint Intervenor's request for certification to the Commission of a question about the use of a " FEMA agency finding" or a " FEMA Staff report" in carrying out 10 C.F.R. 50.47 is denied.
III.
Applicants motion to compel production of documents and the state's claim of privilege.
Counsel for Governor Brown has been directed to submit in camera all documents as to which privilege or irrelevancy is claimed.
Counsel has stated that he will do so as soon as he is able.
The Board's decision in this matter will await receipt of the documents in question.
IV.
Joint Intervenors' Revised Contention on environmental qualification of safety-related equipment.
On August 4, 1981, the Board issued a Memorandum and Order in which we addressed, among others, Joint Intervenors' Contention 14, which was related to the environmental qualification of Class 1-E equipment.
The contention had been submitted in Joint
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2 Intervenors' Statement of Clarified C0ntentions dated June 30, 1981.
The Board ruled as follows:
The Board, howevar, expects that Diablo Canyon will not be permitted to operate antil the safety-related electrical equipment has been qualified in accordance with the mandates of the various general design criteria, as required by regul ation.
Having said this, the Board does not see herein a litigable issue set forth.
This part of the contention is therefore denied.
Joint Intervenors also contend that the Staff has failed to determint that environmental qualification of Class lE electrical equipment for full-power operation is adequate, and that the Staff has not determined the adequacy of the radiation qualification of safety-related equipment.
Joint Intervenors are quite correct in this assertion.
The Staff has stated (SER, Supp.13, p. 7-1; SER, Supp.14, p. 3-8) that the Staff evaluation of these matters will be presented in a following SER supplement.
The Board, therefore, will allow Joint Intervenors, if they so desire, to file a contention on these matters setting forth specific areas of inadequacy in the Staff's evaluation to be contained in a forthcoming SER supplement.
The contention will be due fif teen days af ter service of the SER supplement.
Supplement No.15 to the SER was issued on October 2,1981, and the Joint Intervenors submitted their Revised Contention on Environmental Qualification on October 23, 1981.
The Board has carefully reviewed the revised contention.
The Board had allowed the submission of the revised contention solely on the grounds that, as of that writing, there was ng, evaluation of the qualification of Class 1-E equipment presented in the SER or any of its supplements.
We were concerned, therefore, that the SER would be a complete document which responded to the Commission Memorandum and Order, CLI-80-20, dated May 23,1980, which required qualification of safety-related equipment as set forth in
6 a NUREG-0588.
The Joint Intervenors interpreted the Board's ruling as being much broader than the Board had intended, and has attempted to include arguments about the Staff's acceptance of the proposed qualification procedures.
The Board had specifically ruled on such arguments in the first paragraph of our order, as set forth above.
The only specific reference to a deficiency in SSER No. 15 made oy Joint Intervenors was to lack of reference to Reg. Guide 1.97, Rev. 2, which reference is not required by N UR EG-0588.
In cor. sideration of the above, the Board finds no merit in Joint Intervenor's argument, and the Revised Contention is denied.
V.
Discovery of prospective expert testimony.
At the conference Applicant served on the Board and Counsel depositions by Miguel A. Pulido and Sheldon C. Plotkin (Joint Intervenors proposed experts), together with a memorandum "Re:
Denial of Discovery of Expert Opinion." Without any proof, save the depositions, Counsel for Applicant made an oral motion requesting "that the testimony of the Joint Intervenors and the Governor's expert witnesses be limited to those opinions that they were able to express at the time the time of their deposition or in their answers to intei rogatories that have been filed to date end that they not be allowed to come up with new opinions based upon f acts that they were unable to discover through the discovery process."
t Counsel for the Governor and the Joint Intervenors contested the charge levied by Applicant's Counsel.
The Joint Intervenors stated their willingness to cooperate with further discovery attempts in this area.
The precise situation regarding the deposition of the Governor's experts was not made clear by Applicant's counsel.
The Chairman denied the motion for lack of probative evidence. However, it is not his purpose to limit discovery of expert testimony, nor to eliminate such testimony by imposing the sanctiens sought by the Applicant.
Accordingly, the Governor's Counsel and the Joint Intervenors' Counsel will serve, as soon as possible, and no later than January 9,1981, the written testimony of its expert witnesses.
The written testimony shall include the subject matter on which the expert is expected to testify and the substance of the facts and opinions to which the expert is expected to testify and summary of the grounds for each opinion.
The qualifications of the witness as an expert shall be stated in detail.
Each expert will, of course, be subject to voir dire by opposing counsel or the Board, if necessary.
The Board is well aware of the tight schedule of events that was agreed to by the parties and the extenuating circumstances faced by the Joint Intervenors.
The situation calls for coordination and avoidance of mere technical positions regarding time.
VI.
Specificity of Contention 1.
Contention 1 as restated by the Board reads:
PG&E and the combined onsite, state and local ecergency response plans and preparedness do not comply with 10 C.F.R. 50.33(g); 50.47 and revised Appendix E to Part 50.
At the conference held December 16, 1981, NRC and PG&E counsel requested the Board to refine Contention 1 in order to make it more specific in the light of discovery which has now taken place.
Joint Intervenors indicated that they were satisfied with the broad wording of Contention 1, but they reaffirmed that i
their specific concerns about emergency planning were set forth in their statement of clarified contentions which was filed with the Board June 30, 1981. Tr. 11530.
In its Memorandum and Order of August 9,1981 the Board restated Joint Intervenors Contention 1 in its present form rather than admit approximately 3 pages of detailed concerns labeled (a) through (n) to be litigated in the full power proceeding. The Applicant and Staff are of course free to file motions for summary disposit ion on any of these concerns of Joint Intervenors for which they believe there is no genuine issue of material fact.
The Board concluded in the conference of counsel that it is without jurisdiction to consider issues related to the effects of earthquakes on emergency planning.
Tr. 11446.
Accordingly, Joint Intervenors issue (h) is outside the scope of the full power hearing and need not be addressed further.
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.. The issues of emergency planning are inherently broad and complex and the Board expects the Staff and Applicant to address these issues at the hearing guided by the planning standards contained in 10 C.F.R. 50.47 and further explained in NUREG-0654.
Information on the current status of Applicant's compliaace should be presented for each standard.
With these clarifications the Board sees no need to further refine Contention 1.
4 VII.
Agreements by Parties.
Counsel for Governor Prown stated they would be willing to produce state employees--but they would have to confer with them first--Applicant will furnish a list.
It is assumed by the Board that Counsel for Applicant will product imployees of PG&E under the same conditions if Intervenors find need for them as witnesses.
Counsel for Applicant agreed, in response to Joint Intervenors' motion of November 6,1981 to compel answers to interrogatories, that he would furnish Joint Intervenors with all the information that Applicant or its counsel or their agents or consultants have with respect to the so called ErRI program on valve testing.
The parties agreed that they would supply to the Board their preferred order of litigation of the contentions.
On this th day of December,1981 it is ORDERED
o 4 1.
That the motion of the Joint Intervenors to include their revised contention on environmental qualification of safety related equipment is denied.
2.
That the FEMA finding contained in Krim's Memorandum of November 17, 1981 is adequate and may be used by NRC as a rebuttable presumption.
THE ATOMIC SAFETY HiD LICENSING BOARD Q f.
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dn F. Wolf, Chairman ADMINISTRATIVE JUDGE Y. b Glenn O. Brignt
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ADMINISTRATIVE JUDGE N
ADMIT;ISTRATILge 4
Dr r igerryKli JUDGE Issued and Entered this 23rd day of December 1981.
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