ML20040A991
| ML20040A991 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 01/20/1982 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OL, NUDOCS 8201230040 | |
| Download: ML20040A991 (12) | |
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NUCLEAR REGULATORY COMMISSION
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BEFORE THE C0W4ISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 0.L.
50-323 0.L.
(Diablo Canyon Nuclear Power Plant,
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Units 1 and 2)
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NRC STAFF RESPONSE TO GOVERNOR BROWN'S JANUARY 12, 1982 REQUEST FOR DIRECTED CERTIFICATION i
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William J. Olmstead Deputy Chief Hearing Counsel
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8201230040 820120 PDR ADOCK 05000275 C
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 0.L.
50-323 0.L.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2)
NRC STAFF RESPONSE TO GOVERNOR BROWN'S JANUARY 12, 1982 REQUEST FOR DIRECTED CERTIFICATION William J. Olmstead Deputy Chief Hearing Counsel Janua ry 20, 1982
01/20/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMoANY Docket Nos. 50-275 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) f4RC STAFF RESPONSE TO GOVERN 0R BROWN'S JANUARY 12, 1982 REQUEST FOR DIRECTED CERTIFICATION I.
INTRODUCTION On January 12, 1982, Governor Brown filed with the Commission, a "Re-quest for Directed Certification of ASLB Order Diiclaiming Jurisdiction Over Effects of Earthquakes on Emergency Planning and for Expedited Consideration" (Request).
Therein, the Goverr,ar seeks directed certificatio. by the Commis-sion of the Licensing Board's ruling that it lacked jurisdiction to consider ir. this proceeding the impacts on emergency planning of earthquakes which cause or occur during an accidental radiological release.
Licensing Board's tiemorandum and Order, December 23,1981.E Briefly stated, Governor Brown argues that PG&E has itself placed this matter in controversy by reference to earthquakes in its emergency plan, that consideration of this issue is not foreclosed by the Commission's recent decision in the San Onofre pro-ceeding, and that the issue sought to be raised is critical in the context of this proceeding.
N The Governor's Request erroneously makes reference to a Memorandum and Order dated Scember 28, 1981.
For the following reasons, the NRC Staff opposes the Goveraor's Request.
II. EACKGROUND On December 8,1981, the Commission in its Memorandus and Order in Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-81-33, NRC
, determined that pending generic consideration of this matter, "the proximate occurrence of an accidental radiological release and an earthquake that could disrupt normal emergency planning appears sufficiently unlikely that consideration in individual
?icensing proceedings... is not warranted" (Slip op. at 2-3).
Thereaf ter, on December 23, 1981, the Atomic Safety and Licensing Board presiding in this proceeding issued a Memorand;:m and Order memorializing a conference of counsel and the Board held on December 16, 1981 at which discussion was had regarding, inter alia, the effect of the Commission's Sar Onofre Memorandum and Order.
(Tr. 11,445-11.451).
The Licensing Board concluded 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."
(Memorandum and Order at 2; see also Tr. 11,445-11,446 and 11.450, 11,451).
On January 6,1982, Governor Brown filed a " Request for Certification of ASLB Order Disclaiming Jurisdiction Over Effects of Earthquakes on Emergency Planning and for Expedited Consideration," with the Licensing Board seeking, on the same bases as advanced in support of the instant Request, certification of the Licensing Board's December 23rd ruling to the Appeal Board. This Request was denied by the Board on January 11, 1982.
On January 12, 1982, the Governor filed the subject request with the Commis-sion.E III. DISCUSSION A.
The standards to be applied in determining whether an interlocutory appeal will be considered have been stated to be where ths. tJ11ng either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal. (2) affected the basic structure of the proceeding in a pervasive or unusual manner, or (3) presents a significant legal or policy question on which Commission guidance is needed.
Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977), U.S. Nuclear Regulatory Commission Statement of Policy on Conduct of Licensing Proceedings, dated May 20,1981, at p. 7); see also Houston Lighting & Power Company (Allens Creek Nuclear Generating Station.
Ur.it No.1), ALAB-635,13 NRC 309 (1981).
The instant request for certifi-cation fails to address these tests.
Most significantly, moreover, the subject matter of the ruling regarding which the Governor seeks directed certification is one upon which the Commission has just recently spoken in U Pursuant to 10 C.F.R. $$ 2. 718(1), 2.730(f), and 2.785, this Request should have been filec' with the Appeal Board as a request for referral, rather than with the Comission.
Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2), CLI-80-17,11 NRC 678 (1980). The Governor makes no argument that exceptional circum-stan:es warrant Commission involvement in this matter.
-4 the context of the San Onofre proceeding.
The action taken by the Licensing Board is wholly consistent with guidance already provided by the Commission and raises no new legal or policy question on which further guidance from the Commission, or for that matter, from the Appeal Board, is needed.
We turn now to a discussion of the several arguments advanced by the Governor.
B.
The Governor first argues that consideration of this issue in this proceeding is appropriate in light of certain references in PG&E's own emergency plan to earthquakes. Simply stated, the Governor's reliance on such references is misplaced.
Contrary to the Governor's assertion, the cited references to Table 4.1-1 do not purport to reflect planning for the complications of an earthquake.
Rather, as the Governor more accurately notes, earthquakes are included in the emergency plan (in Table 4.1-1 at pp. 11 and 15) merely as " initiating events." In particular, the emergency plan provides that the occurrence of an earthquake greater than 0.2 g (i.e.,
greater than the Operating Basis Earthquake) requires initiation of an Alert (Id. at p. 11), ana the occurrence of an earthquake greater than 0.75 g (i.e., greater than the Safe Shutdown Earthquake) requires initiation of a Site Area Emergency (Id. at p. 15), consistent with the guidance set forth in NUREG-0654, Appendix 1.
In neither of the instances cited by the Governor is any planning provided for the complicating effects of these events on implementation of the emergency plan; these events are only
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triggering levels. Accordingly, the bases referenced by the Govere^r are not supportive of his position.M The second argument advanced by the Covernor is that by declining to provide him with an opportunity to comment to the Commission during its consideration of the matter in the context of the San Onofre proceeding, the Commission did not intend its decision therein to bind the Board in Diablo Canyon.
Indeed, the Governor states, the Commission's decision in San Onofre " leaves room for the Commission to make a finding that the cir-cunstances of Diablo Canyon require consideration of earthquake consequences on emergency preparedness."
(Requestat2). The mere fact that the Com-mission did not grant discretionary leave to a non-party to the San Onofre proceeding to offer comment does not permit the inference the Governor would have us draw, particularly in light of the Commission's clear statement of the generic nature of its determination (see quoted language supra at p. 2).
Furthermore, the very essence of the Commission's decision is its determi-nation that consideration of this matter is not required by the existin; Commission regulations:
"the Comission has decided that its current regu-lations do not require consideration of the impacts on emergency planning of earthquakes which cause or occur during an accide' ital radiological 3.f With respect to the 7 ERA report referred to by the Governor (Request at 3), the Staff would note that it was prepared for PG&E in response to a request by the Staff dated December 16, 1980. The Staff, at that time, had requested information for all nuclear facilities in Cali-fornia a'nd Oregon regarding the complicating effects of earthquakes and volcanic activity, respectively, on emergency preparedness, as part of an effort to consider this matter prior to the Commission's San Onofre decision. The existence of such report has no bearing cn the propriety of considering the issue the Governor seeks to litigate.
release." (Slip op. at 1). The regulations to whici; the Commission made reference are, of ccrse, equally applicable to all proceedings and facilities. The Commission further stated that:
Whether or not emergency planning requirements should be amrnded to include these considerations is a question in be addressed on a generic, as opposed to case-by-care basis.
The Commission will consider on a generic basis whether regu-lations should be changed to address the potential impacts of a severe earthquake on emergency planning.y (Slip Op. at 1-2).
The Commission's conclusion simply leaves no room for the Governor's arguments that it was not intended to be universally applied.
Furthermore, to the extent that the Governor is suggesting that there are factors peculiar to Diablo Canyon which " leaves room... to require consideration of earthquake consequences on emergency preparedness" (Request at 2), he has failed to articulate any such factor.
In light of the San Onofre decision, the Governor's proposal to consider this matter amounts to a challenge to the Commission's regulatfor.s which imposes on him a burden of demonstrating that special circumstances exist warranting waiver or exception from a rule or regulatiom 10 C.F.R. 5 2.758. The Governor has not even addressed let alone satisfied this burden.
The final argument presented by Governor Brown does not, in fact, relate in any way to the jurisdictional question which the Governor has O The discussion in the Commission's San Onofre decision is generally couched in terms of " severe earthquakes" (see Memorandum and Order at2).
However, the breadth of the conclusion applies to " con-sideration of the impacts on emergency preparedness of earthquakes which cause or occur during an accidental radiological release" (Id,., at 1) irrespective of their size.
requested be certified to the Commission. The Governor presents several factual arguments which he believes make it imperative that the effects of earthquakes on emergency plans be considered. There is no factual or legal basis, nor is any suggested by Governor Brown, for such arguments creating jurisdiction in the Licensing Board or otherwise warranting the Commission's intercession at this juncture. See Susquehanna at 679, supra, fn. 2.
Furthermore, the factual matters raised by the Governor are sub-stantively no different than those before the Commission in San Onofre.
As the Commission specifically noted in determining that the consideration of the effects of earthquakes on emergency plans was not warranted in individual proceedings, the occurrence of an accidental radiological release and an earthquake that could disrupt normal emergency planning are unlikely (Id. at 2). The Governor has not presented any factual cr legal basis for departing from this conclusion (see 10 C.F.R. 9 2.758).
IV. CONCLUSION The Commission's December 8,1981 decision in San Onofre removes from the jurisdiction of the Licensing Board the question of the effects on emergency plans of earthquakes occurring simultaneously with a radiolcgical emergency. That decision is clearly meant to apply to all ths Commission's licensing proceedin3s. Governor Brown has not presented any basis in law or fact for finding that the San Onofre decision does not apply to the Diablo Canyon proceeding. There is, therefore, no basis for reversing the Licensing Board's conclusion that it did not have jurisdiction to consider s
_ _ _ _ _ _ _ _ _ the effects of earthquakes on the Diablo Canyon emergency plan and the Governor's Request for Directed Certification should be denied.
Respectfully submitted, gff-_.
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William J. Olmstead eff C l
Deputy Chief Hearing Counsel Dated at Bethesda, Maryland this 20th day of January,1982
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UNIT'EDST47dS0F~AiiERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC C0:1PANY Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant.
Units 1 and 2)
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CERTIFICAlEUFSERVICE I hereby certify that copies of "NRC Staff Response to Governor brown's Janua ry 12, 1982 Request for Directed Certification" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, oc, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of Janua ry, 1982:
Samuel J. Chilk*
- Mr. Glenn 0. Bright
- Secretary of the Commission Administrative Judge R
Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
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Leonard Bickwit, Esq d Dr. Jerry Kline*
General Counsel Administrative Judge Office of the General Counsel Atomic Safety and Licensing Becrd U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commhision Washington, DC 20555 Washington, DC 20555 Dr. John H. Buck, Esq., Chairman
- Ms. Elizabeth Apfelberg Atomic Safety and Licensing Appeal 1415 Cozadero Board San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission Washington, DC 20555 Philip A. Crane. dr., Esq.
Pacific Gas & Electric Company Dr. W. Reed Johnson
- P.O. Box 7442 Atomic Safety and Licensing Appeal San Francisco, CA 94120 Board U.S. Nuclear Regulatory Commission Mr. Frederick Eissler Washington, DC 20555 Scenic Shoreline Preservation Conference,.Inc.
Thomas S. Moore, Esq.*
4623 Nore Mesa Drive Atomic Safety and Licensing Appeal Santa Barbara, CA 93105 Board U.S. Nuclear Regulatory Commission David S. Fleischaker, Esq.
Washugton, DC 20555 P.O. Box IU8 Oklahoma City, OK 73101 John F. Wolf, Esq., Chairman
- Administrative Judge Mrs. Raye _ Fleming Atomic Safety and Licensing Board 1920 Mattie Road U.S. Nuclear Regulatory Commission Shell Beach, CA 92449 Washington, DC 20555
.w Richard E. Blankenbury, Co-Publisher Mr. Richard B. Hubbard Wayne A. Soroyan, News Reporter MHB Tschnical Associates South County Publishing Company 1723 Hamilton Avenue - Suite K P.O. Box 460 San Jose, CA 95125 Arroyo Grande, CA 93420 Mr. John Marrs, Managing Editor
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Mr.' Gordon Silver San Luis Obispo County Mrs. Sandra A. Silver Telegram-Tribune 1760 A11 sal Street 1321 Johnson Avenue San Luis Obispo, CA 93401 P. O. Box 112 San Luis Obispo, CA 93406 Joel R. Reynolds Esq.
John R. Phillips, Esq.
Andrew Baldwin, Esq.
Center for Law in the Public 124 Spear Street Interest San Francisco, CA 94105 10951 West Pico Boulevard Third Floor Mr. Herbert H. Brown Los Angeles, CA 90064 Hill, Christopher & Phillips, P.C.
1900 M Street, N.W.
Arthur C. Gehr, Esq.
Washington, DC 20036 Snell & Wilmer 3100 Valley Center Mr. Byron S. Georgiou Phoenix, AZ 85073 Legal Affairs Secretary Governor's Office Paul C. Valentine, Esq.
State Capitol 321 Lytton Avenue Sacramento, CA 95814 Palo Alto, CA 94302 Mr. Mark Gottlieb Harry M. Willis, Esq.
California Energy Commission Seymour & Willis MS-18 601 California St., Suite 2100 1111 Howe Avenue San Francisco, CA 94108 Sacramento, CA 95825
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Janice E. Kerr, Esq.
Atomic Safety and Licensing Board Lawrence Q. Garcia, Esq.
Panel (1) 350 McAllister Street U.S. Nuclear Regulatory Commission San Francisco, CA 94102 Washington, DC 20555 Mr. James 0. Schuyler Atomic Safety and Licensing A;4 cal Nuclear Projects Engineer Panel (5)*
-Pacific Gas & Electric Company U.S. Nuclear Regulatory Commission 77 Beale Street Washington, DC 20555 San Francisco, CA 94106 Docketing and Service Section (1)*
Bruce Norton, Esq.
Office of the Secretary 3216 North 3rd Street U.S. Nuclear Regulatory Commission Suite 202 Washington, OC 20555 Phoenit, AZ 85102
~ Ed, card ChristenburyDirector & Chief Couns/
el Hearing Division 1
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