ML20053D284
| ML20053D284 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 05/26/1982 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OL, NUDOCS 8206040264 | |
| Download: ML20053D284 (14) | |
Text
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3 UtilTED STATES OF AMERICA NUCLEAR REGULATORY COMMISS10ft BEF0fiE THE COMMISSION
)
In the Matter of Docket Nos. 50-361 OL SOUTHERN CALIFORNIA EDISON COMPANY, 50-362 OL ET AL.
)
(San Onofre fluclear Generating
)
Station, Units 2 and 3)
NRC STAFF'S AfiSWER IN OPPOSITION TO INTERVEll0RS CARSTENS ET AL.'s APPLICATION FOR STAY _
Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel Dated: May 26, 1982
/ DESICyATED CINGI; f.fi -
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PDR ADOCK 05000
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. UNITED STATES OF AMERICA e
NUCLEAR REGULATORY COMMISSION
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BEFORE THE COMMISSION
.c In the Matter of
)
)
SOUTHERN CALIFORNIA EDISON COMPANY,
)
)
50-362 OL,
)
(San Onofre Nuclear Generating
)
Station,-Units 2 and 3)
)
m NRC STAFF'S ANSWER IN OPPOSITION TO INTERVENORS CARSTENS ET AL.'S APPLICATION FOR STAY b
i 09 j
Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel i
Dated:
May 26, 1982 e
05/26/82 UNITED STATES OF MERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
SOUTHERN CALIFORNIA EDISON COMPANY,
)
Docket Nos. 50-361 OL
_ET _AL.
)
50-362 OL
)
, (San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
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NRC STAFF'S ANSWER IN OPPOSITION TO INTERVENORS CARSTENS ET AL.'S APPLICATION FOR STAY I.
INTRODUCTION On May 11, 1982, Intervenors Carstens et al. -(Intervenors) filed their
"... Application For Stay Of Low Power License (10 C.F.R. 2.788) And Appeal
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From Denial Of By The ASLAB" (Application), seeking a stay of the Partial Initial Decision (PID) issued by the Atomic Safety and Licensing Board.
For the following reasons, the NRC Staff (Staff) opposes the Application and urges that it be denied.
II.
BACKGROUNC On January 11, 1982, the Atomic Safety and Licensing Board (Licensing Board) issued a Partial Initial Decision authorizing the Director, Office..of Nuclear Reactor Regulation to issue an cperating license permitting fuel loading and low-power testing (up to 5% of rated power) for San Onofre Nuclear Generating Station Unit 2.1/ On January 27, 1982, Intervenors Carstens, et al. (Intervenors) filed an "... Application for Stay of Low Power License 1/
This authorization is subject to certain emergency planning conditions not relevant to the subject Application for Stay.
An operating license consistent with the Licensing Board's authorization was issued on Februa ry 16, 1982, No. NPF-10.
..(10 C.F.R. 2.788)" (First Application) with the Atomic Appeal Board (Appeal Board), pending appeal.
ng The Appeal Board, on April 26, 1982, issued a Decision denying the First Application
, ALAB-673, NRC Intervenors' Application followed on May 11, 1982 III.
DISCUSSION A.
Under the provisions of 10 C.F.R. 5 2.788(h), the p~roce 10 C.F.R. 5 2.788(a)-(e) are to be followed in considering ures of an application for stay of a decision denying a stay such as the subject Applica 3
The. burden of persuasion. rests ~upon tre party seeking the stay public Service Company -
of Indiana, Inc. (Marble Hill Nuclear Generating Indiana
, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2)
, ALAB-493, 8 NRC 253, 279 (1978).
No one of the factors to be considered under 10 C F R 5 2.788(e)2/ $3 dispositive; rather the granting or denying of a stay request turns on a balancing of all the f actors.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338
, 4 NRC 10, 14 (1976).
The most important factor is whether the party requesting the stay h as shown that it will be irreparably injured unless a stay is granted W_ estinchouse Electric
_ Corporation (Exports to the Phillipines), CLI-80-14 Public Service Comoany of New Hampshire, ALAB-338
, supra.
-2/
The factors to be considered under 10 C.F 1.
re:
1;::ely to prevail on the merits; 2.
s whether the party will be irreparably injured unless a sta granted; y is 3.
where the public interest lies.whether the granting of a s 4
9
3.-
s discussed below, a balancing of the four factors does not favor granting Intervenors' requested stay. I '
B.1.
Likelihood of Prevailing on the Merits Intervenors first contend that it was improper for the Appeal Board a.
to determine that exclusion of certain evidence purporting to show that the Cristianitos Fault, a feature near the San Onofre site, is active,AI was'
- harmless error (Application at 2-6).
,e Intervenors refer tt, Contentior. 3 admitted in this proceeding as the issue under which consideration of the Cristianitos Fault should have been allowed.
(Application at 5).
This contention, as quoted by Intervenors, brings into question:
"Whether the seismic design basis for SONGS 2 & 3 is inadequate to prctect the public-health and safety as a result of discoveries subseouent to issuance of the construction permit of the following geologic features...(3) Such other features as the parties may agree are relevant to the seismology of the SONGS site or with respect to which Intervenor Friends of the Earth makes a threshold showing of relevance."
(Id_.; Emphasis added).
Thus, the capability of the Cristianitos Fault was not explicitly at issue in this proceeding.
See also, 10 C.F.R. 5 2.760a.
Rather, in the framework of the admitted contention, it would only have been in controversy had Intervenors made a showing of relevance.
As discussed below, Intervenors failed to make such showing.
3/
The Staff objects to the Intervenors repeated references to significant l
portions of their Brief in Support of Exceptions filed with respect to the merits of their appeal of the PID, for purposes of the subject Application. See, 10 C.F..R. 5 2.788(b).
-4/
Intervenors' assertion that "... the NRC... [has never] decided the issue of the capability of the Cristianitos fault and this licensing board has refused to decide the issue based upon ' foreclosure'",
l (Application at 3) is simply incorrect. The Licensing Board in fact resolved this matter in the present proceeding.
The matter has been evaluated by the Staff in its Safety Evaluation Reports at both the construction permit and operating license stage.
=
i 4-Intervenors complain that the Appeal Board (as had the Licensing Bo decided the issue of the capability of the Cristianitos Fault on the basis of evidence presented only by the Applicants and Staff while striking their testimony and preventing them from cross-examining the other parties' witnesses. (Application at 3-4).
i.
The Intervenors' principal testimony and evidence regar' ding the capability of the Cristianitos Fault was that sponsored by Mr -Ri. chard Simons.
Mr. Simons ' testimony was stricken by the Licensing Board on two independent grounds -- foreclosure and lack of probative value (PID at 17-28).
While the Appeal Board, in the' context of Intervenors' First Application, fundament agreed with Intervenors that the Licensing Board's application of principles of foreclosure may have been unduly restrictive (ALAB-673, slip op. at 4-5, tbt such error was not prejudicial to Intervenors 9-15),itconcluded at 5,15-16) because they were not deprived of an opportunity to pursue meaningful examination of the witnesses presented with respect to the matter in controversy.
Furthermore, the Appeal Board decided that there was merit in i
the Licensing Board's refusal to credit this evidence (Id. at 22-25)5_/ in that it was lacking in probative value.
Consequently, in the absence of relevant and reliable evidence, see, 10 C.F.R. 5 2.743(c), sponsored by l
l Intervenors, it cannot be concluded that they have directly made the requisite' showing of relevance to warrant consideration of the Cristianitos Fault.
Moreover, the testimony of Drs. Ehlig and Biehler on behalf of the Applicants 1
j does not, as Intervenors contend (Application at 5), establish relevance; on the contrary, it reveals that, with respect to post-construction permit occurrences in the area of the Cristianitos Fault, none is associated with 5/
See also ALAB-673, slip op. at 25-27, regarding similar concerns about the testimony of Intervenors' witness, Mr. Legg.
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t' hat feature.
Thus, their testimony establishes the lack of relevance of post-construction permit occurrences to th'e seismic design basis of San Onofre Units 2 and 3 as it relates to the Cristianitos Fault.
Pre-construction permit (1973) data is beyond the scope of the admitted matter in controversy, which by its terms is limited to post-contruction permit events.
While Intervenors may have wished to litigate a broader issue
,(Application at 3), it just was not the matter in controversy in.this proceed-ing.
Mr. Simons' testimony, therefore, is not relevant to any issue in contention to the extent it addresses pre-construction permit information.
ii.
The Intervenors next assert that the actions by the Licensing Board in curtailing cross-examination respecting the Cristianitos Fault was prejudicial.
( Application at 4.) The Intervenors provide no reference to the record in this proceeding showing that an otherwise proper question on cross-examination of any witness regarding post-construction permit information was disallowed.5/ Of course, regarding pre-construction permit information, cross-examination, when it was attempted, was properly foreclosed as irrelevant to any of the matters in controversy.
iii.
Ia spite of their scattered arguments on this matter, the Intervenors adhere to the argument, made in their First Application, that the l
gravamen of their position is that "all of Intervenors testimony regarding the,
capability of the Cristianitos fault was stricken from the record."
(Applica-tion at 4.) To the extent that there is no evidence in the record regarding
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their position (Id.), this is not as a result of any improper determination by either the Licensing Board or Appeal Board.
Rather, as discussed above, 6/
As the Appeal Board found, "Intervenors did in fact cross-examine [ Staff witnesses; Mr. Cardone and Dr. Reiter as to post-1973 evidence...-[and]
had virtually no questions to ask Dr. Biehler, the applicant's consultant, whose testimony covered the Cristianitos fault in its full historial range."
(ALAB-673, slip op, at 16; footnotes omitted).
d
l it is solely attributable to the Intervenors' failure to pres ent relevant, reliable and probative evidence on the admitted matter in controversy.
In short, the record demonstrates that the treatment of thi s matter below was proper and that no prejudicial error was committed; I t n ervenors again have failed to demonstrate that they are likely to prevail appeal respecting this issue.
on the merits of their s
b.
The Intervenors' next argue that the Offshore Zone '6f D f (0ZD) was improperly segmented by the Licensing Board a d
- e. ormation should have been n
considered a continuous zone of deformation.
The effect of this determina-tion, they suggest, ~is to " improperly limit the siz e of the earthquake which can be expected... and also precludes any consideration of th e 0ZD continuing into Baja California."
(Applicationat6-7).
The Intervenors fail to provide any basis for their argument.
Although the Lict ting Board found that the OZD was comprised of three elements
, it nonetheless viewed it, for purposes of establishing the appropriate Safe Shutdown Earth quake (SSE), as a single zone.
The clear preponderance of the evidence establishes that this single zone is not capable of rupturing along its entire length in a single event.
Thus, the SSE was properly established on the basis of th maximun event on the 0ZD viewed as a single zone and taking i t e
all of the geologic and seismic characteristics, of the 0ZD n o consideration
, including its length, matters explicitly included in Contention 4 The evaluation of the characteristics included not only the attributes of the 0ZD bet ween its northern terminus near the Santa Monica Mountains south to about San Diego but also substantial consideration of the potential for a n extension of the OZD into Baja California; a postulated continuation of the 0ZD i nto Baja California was found not likely to exist.
(pID at 81, 83, 88).
The Intervenors' argument on this matter is simply without does not establish a likelihood of prevailing on the me it support and r
s, t
]
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c.
The Intervenors then argue that the Appeal Board (as had the Licensing Board below) improperly considered and construed the testimony of Staff witness, Dr, David Slemmons.
His testimony, they suggest, indicates that a standard deviation should be added to the earthoJake magnitude he calculated for the SSE, thereby increasing the SSE beyond that assigned by the Licensing Board, magnitude 7 (Application at 7). As the Appeal Board ap'tly
, observes, "Intervenors' argument is refuted by other testimony in-the proceeding and stems from what appears to se an improper use of Dr. Slemmons' testimony."1/
Intervenors, in their Application, have added nothing to their prior argument on this matter which the Appeal Board ruled did not establish a strong showing that they are likely to prevail on the merits.8_/ Thus, Intervenors have not demonstrated any error by the Appeal Board.
d.
In summary fashion, the Intervenors finally present three other matters on which they imply they are likely to prevail.
First, they state that the testimony of their witness, Dr. David Boore, establishes that the maximum vibratory ground motion established for this facility, 0.67, will be 9
exceeded by both a magnitude 7 and 7.5 earthquake (Application at 9). Second, they argue that the testimony of Board witness, Dr. J. Enrique Luco, l
establishes that 0.8g would be the appropriate ground motion to be assigned.
Third, they suggest that the design criteria for this facility are affected by ev'idence which invalidates the assumption that vertical accelerations approximately 2/3 of horizontal accelerations should be used (Application
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at 8). Other than making the unsupported suggestion that the Board (presumably the Appeal Board) either " ignored," " misconstrued," or " erred,"
7/
ALAB-673, slip op. at 36.
i 8/
Id. at 40-41.
i
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.~. the Application is bereft of specific concerns.
Consequently, assuming that Intervenors have in mind the same matters previously complained of rejected by the Appeal Board, the Staff would rely on the reasoning s orth by the Appeal Board in i,ts decision.
In any event, these arguments fall short' of showing error on the part of the Appeal Board in its denial of the F Application and/or that Intervenors are likely to prevail on the merits '
Accordingly, with respect to all matters raised, Inte'rvenors.-have to demonstrate that the Licensing Board in its PID or the Appeal Boa d i r
n ALAB-673, committed error (save, possibility with respect to the~Licens ng Board's ruling respecting foreclosure) and that they are otherwise o
prevail on the merits of their appeal.
2.
_ Irreparable Injury To Intervenors This factor, the most important of the four, see, Westinchouse
_ Electric Corporation, CLI-80-14, supra, is but briefly treated by being founded solely upon their assertion that they have made a st w ng of likelihood of success on appeal, that as a consequence it is proper that an earthquake hazard exists and that, therefore, low power operatio n
" subjects Intervenors and all of the citizens of Southern California to irreparable injury in that an earthquake above the design basis could serious loss of containment accident even during low power testing."
(Application at 9).
Beyond that, Intervenors assert only the unsupported conclusion that this "is especially hazardous in light of the fact that offsite emergency plans are not yet in place and found adequate by F.E M (Id.)
To affirmatively meet this factor, there must be more than a mer of the possibility of legal error.
_ Philadelphia Electric Company,-ALAB-221, In this case since Intervenors' have failed to make a strong suora.
of likelihood of prevailing on the merits, it requires a rather substantial
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l leap'in logic to conclude, as Intervenors apparently do, that alleged error by the Licensing Board perforce compels a c'onclusion that an earthquake hazard exists which goes beyond the design basis of the facility and creates irreparable injury.
Furthermore, contrary to the definition of " irreparable injury" to which Intervenors subscribe (Application at 8), the Appeal Board has prescribe' an d
appropriate standard for NRC proceedings.
Citing with approval,the Appeal Board's statement in Metropolitan Edison Company, et a_l,. (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 46 (1978), the Appeal Board in this case said:
"The standard which perforce governs this determination is an obvious one: will the continued operation of the plant over the period required to complete the additional proceedings be consistent with the requirement that there be reasonable assurance that the public health and safety not be endangered.
See 10 CFR 2.104(c)(3); 10 CFR 50.57(a)(3).
If not, the facility of course cannot be allowed to continue to operate at this time."
As applied to the case at hand, that standard obviously does not call upon intervenors to show that an earthquake beyond the seismic design of the plant is likely during the pendency of this appeal.
It would be enough if apparent inadequacies in the plant's seismic design were sufficient to raise the question whether plant operation would present an undue risk to the public in the event of an earthquake. 16/ See Pacific Gas end Electric Co. (Diablo Canyon Nuclear Power PHnt, Unit 1), CLI-81-30, 14 NRC 950 (1981).
ALAB-673, slip op. at 18-19 (footnote omitted).
Viewed in this light, it is evident that Intervenors have failed to '
establish irreparable injury, raising nothing more than unfounded speculation. /
-9/
With respect to the state of emergency preparedness, we would note that it has been found by the Licensing Board, in its PID, to be adequate for purposes of low-power operation and no party has sought a stay of the PID on related grounds. The brief of Consolidated Intervenors GUARD and Carstens, et al., regarding emergency preparedness was stricken by the Appeal Board by Order dated April 20, 1982.
Furthennore, by Initial Decision issued on May 14, 1982, the Licensing Board found that, subject to a number of conditions, the state of emergency preparedness is adequate for full-power operation.
--_-------------_-------.---------------------------------------_--o
3.
Harm To The Other Parties The Intervenors do not in any substantive manner describe how the grvting of "a stay will not inordinately harm the Applicants...."
(Applica-tion at 9.) Tothecontrary,however,theAppealboard,concludedthatthe j
Applicants will be harmed to some extent if current facility operations are stayed by virtue of the added costs for alternative fuels, construction
,financingandtheneedtokeeptheplantinastanobycondition.f 4.
Where The Public Interest Lies Intervenors make no meaningful attempt to address the question of where the public interest ' lies, save to flatly state that the public interest is best served by issuance of a stay.
In light of Intervenors' failure to make a persuasive showing on this factor as well as on the other requisite factors necessary for the issuance of a stay, as discussued above, we do not believe that they have successfully established that the public interest supports their efforts to now disturb the decisions below.
See, Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-404, 5 NRC 1185, 1188-1189 (1977).
IV.
CONCLUSION Based on the foregoing, the Staff believes that Intervenors have failed to satisfy the requirements for issuance of-a stay under 10 C.F.R. 5 2.788, and, accordingly, Intervenors' Application should be denied.
Re ectfully submitted, Ldwrence J. Chandler Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 26th day of May 1982 10/ ALAB-673, slip op at 6, n.4.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
. SOUTHERN CALIFORNIA EDISON COMPANY, Docket Nos. 50-361 6L '
50-362 OL (San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
CERTIFICATE OF SERVICE
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I hereby certify that copies of "NRC STAFF'S ANSWER IN OPPOSITION TO INTERVENORS CAR ET AL.'S APPLICATION FOR STAY"..in the above-captioned proceeding have been served en the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, t_his 26th day of May 1982:
Stephen F. Eilperin, Esq., Chairman Atomic Safety and Licensing Appeal Dr. Cadet H. Hand, Jr.,
Board Administrative Judge U.S. Nuclear Regulatory Commission c/o Bodega Marine Laboratory University of California Washington, D.C.
20555*
l P. O. Box 247 Dr. Reginald L. Gotchy Bodega Bay, California 94923 i
Atomic Safety and Licensing Appeal l
Boa rd Mrs. Elizabeth B. Johnson, U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C.
20555*
Oak Ridge National Laboratory P. O. Box X, Building 3500 Dr. W. Reed Johnson Oak Ridge, Tennessee 37830 Atomic Safety and Licensing Appeal Janice E'.' Kerr, Es Board J. Calvin Simpson,q.Esq.
U.S. ' Nuclear Regulatory Commission Washington, D.C.
20555*
Lawrence Q. Garcia, Esq.
l CA. Public Utilities Commission James L. Kelley, Esq., Chairman-5066 State Building Administrative Judge San Francisco, CA 94102 Atomic Safety and Licensing Board
- Samuel J. Chilk U.S. Nuclear Regulatory Commission Secretary to the Commission Washington, D.C.
20555*
l U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
l l
L
Alan R. Watts, Esq.
David R. Pigott, Esq.
Daniel K. Spradlin Rourke & Woodruff Samuel B. Casey, Esq.
10555 North Main Street John A. Mendez, Esq.
Suite 1020 Edward B. Rogin, Esq.
Of Orrick, Herrington & Sutcliffe Santa Ana, California 92701 A Professional Corporation Gary D. Cotton 600 Montgomery St.
Louis Bernath San Francisco, California 94111 San Diego Gas & Electric Company.
101 Ash St., P. O. Box 1831 Richard J. Wharton, Esq.
University of San Diego School San Diego, California 92112 of Law, Alcala Park A. S. Carstens San Diego, California 92110 J
2071 Caminito-Circulo Norte
-Charles R. Kocher, Esq.
Mt. La Jolla, California 92037 James A. Beoletto, Esq.
Southern California Edison Company
. Atomic Safety and Licensing Board 2244 Walnut Grove Avenue U.S. Nuclear Regulatory Comission Washington, D.C.
20555* -
Rosemead, California 91770 Phyllis M. Gallagher, Esq.
Atomic Safety and Licensing Appeal 1695 West Crescent Avenue Panel Suite 222 i
U.S. Nuclear Regulatory Comission Anaheim, California '92_701 Washington, D.C.
20555*
Secreta ry-Charles E. McClung, Jr., Esq.
Fleming, Anderson, McClung & Finch i
U.S. Nuclear Regulatory Comission 24012 Calle de la Plata ATTN:
Chief, Docketing & Service Suite 330 Branch Laguna Hills, California 92653 t,
Washington, D.C.
20555*
i Mrs. Lyn Harris Hicks GUARD 3908 Calle Ariana San Clemente, California 92672 I
i l
I Lawrence J. Chandler l
Deputy Assistant Chief Hearing Counsel e
1 I
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