ML20063N660

Reply Brief to Util & NRC 820924 Briefs Re Mootness of Low Power Issues,Per ASLB 820902 Order.Issues Not Moot. Controversy Still Exists & Issue Is of Practical Significance.Certificate of Svc Encl

ML20063N660
Person / Time
Site:	Diablo Canyon
Issue date:	10/01/1982
From:	Brown H CALIFORNIA, STATE OF, KIRKPATRICK & LOCKHART
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8210050180
Download: ML20063N660 (8)

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00CKETED USNRC UNITED STATES OF AMERICA 2 00T -4 5 NUCLEAR REGULATORY COMMISSION C FICE OF 3ECRET CCC}EimG & SERI Before the Atomic Safety and Licensing Appeal Board ERANCH

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In the Matter of )

PACIFIC GAS AND ELECTRIC COMPANY  ! 5o 43d75

} Su (Diablo Canyon Nuclear Power Station, ) -

, Units 1 and 2) )

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REPLY BRIEF OF GOVERNOR BROWN PURSUANT TO BOARD ORDER OF SEPTEMBER 2 Pursuant to the Board's Order of September 2, 1982, Governor Brown hereby replies to the briefs filed by PG&E and i c the NRC Staff on September 24, 1982.

1. Footnote 2 at page 6 of the Staff's brief appears to state that the Governor, under S2. 715 (c) of the NRC's Regulations, may not raise and participate on iscues different from those of another party to the proceeding. If such is the Staff's position,.

p it is erroneous. Section 274 of the Atomic Energy Act and Section 2.715(c) of the Regulations authorize representatives of an l

interested State to raise and participate issues of their own.

l 2. The Staff at page 10 and PG&E at pages 2-3 state that the i

recently promulgated emergency preparedness regulation for low power operation (S50,47(d)) moots the Governor's issue concerning P Ma angy 3So3

the need for offsite emergency preparedness. Assuming arguendo ,

that S50.47(d) .spplies here,.its application would not render the Governor's position moot. The Board should, of course, consider whether it is bound by S50.47(d). The Board's con-sideration, however, should not go to the question of mootness.

Rather, it should go to whether and, if so, to .< hat extend the content of S50.47(d) is controlling here. Indeed, the Board would have to address the facts and arguments put forward by the Governor in order to make that determination.

Moreover, the Governor has placed in controversy the -

issue of risk at low power operation. Contrary to the Staff's statement at pages 13-14, this remains in controversy before.the Board and is not a moot issue.

Finally, even under S50.47(d) the Board must make specific rulings as to the existence of specific offsite emergency response f capabilities. Since the County plan and procedures are not com-plete, 'and since FEMA has not made ' required findings on the adequacy of the State plan, the adequacy of offsite preparedness for low power operation remains in controversy. Under the NRC's -

Regulations, FEMA's findings on the State plan and integrated emergency preparedness, when made, will be only a " rebuttable presumption."

3. The Staff at pages 12-13 and PG&E at pages 3-4 state that the Commission's ruling in the San Onofre case moots the issue of whether the complicating effects of an earthquake on emergency preparedness must be considered. The Staff's position is unsound,

and the earthquake / emergency preparedness issue remains in -

controversy. First, contrary to the Staff's statement at page 12, the Governor's position is not only that the effects of an

" earthquake occurring simultaneously with an accidental radio-iogical release must be considerad." The Governor's position is that the effects of an earthquake "either in conjunction with or separate from a radiological emergency, would seriously complicate emergency preparedness during low power evacuation."

(Gov. Br. to ALAB, dated Sept. 2, 1981, at pp. 35-36) Brief]y a

put, an earthquake which impairs communications systems or evacuation routes would, at the least, diminish the level of existing emergency preparedness; at the most, it would eliminate such preparedness entirely. The Governor continues to contend that this is an issue which must be evaluated by the Board in the context of both the onsite and offsite emergency plans and #

preparedness at Diablo Canyon.

4. The Governor emphasizes that the Licensing Board's rejection of Contention 3, which alleges quality assurance deficiencies at Diablo Canyon, is a critical issue. The Appeal Board should take cognizance and official notice of the Commission's November 19, 1981 Order suspending PG&E's license, the Commission's state-ments at that time, the findings of the Reedy Report (which docu-mented the failure of PG&E in certain areas to implement or, indeed even to have a quality assurance program), and the multiple quality assurance deficiencies which continue to be disclosed.

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The issue here is not affected by Joint Intervenors' .

Motion to Reopen the record to take evidence on quality assur-ance or by the Appeal Board's certification of cercain questions related thereto. The issue should be evaluated here on its own merits.

5. With respect to the relief, block, and safety valve con-tention, the Governor refers the Appeal Board to PG&E's letter of September 23, 1982, from Mr. Philip Crane to Mr. Harold Denton, which states in part:

Westinghouse has been commissioned by PG&E

• to perform.the analysis of reactor coolant system relief and safety valve qualification, including piping and supports, taking the EPRI tests into consideration. The analysis cannot be completed until final spectra for the DE and DDE earthquakes are available.

This information for input into the analysis to.show qualification will be available to provide the information required by 2.C. (8) .i. -

parts (a) and (b) before the end of November i 1982.

Accordingly, the issue remains in controversy and is not moot.

6. Generally, the Staff and PG&E argue mootness inappropriately by suggesting that certain NRC regulations or decisions moot low power isues here. Instead of mootness, the Staff and PG&E more appropriately should argue in subsequent briefs that such regulations provide, in their opinion, controlling principles or case 'aw i which should govern disposition of the issues on

-the merits. The Governor's pcsition is that where a controversy

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• still exists and their is an issue of practical significance, ,

mootness is not a germane standard.

Respectfully submitted, Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814

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Herbert H. Brown .

Lawrence Coe Lanpher Alan Roy_Dynner ,.

KIRKP ATRICK , LOCKHART, HILL, -

CHRISTOPHER & PHILLIPS

,1900 M Street, N.W.

Washington, D.C. 20036 Attorneys for Governor Brown of October 1, 1982 the State of California e

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the " REPLY BRIEF OF GOVERNOR BROMN PURSUANT TO BOARD ORDER OF SEPTEMBER 2" have been served to the following by U.S. Mail, first class, this 1st day of October, 1982, except as otherwise noted.

Mr. Thomas Moore, Chairman

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. W. Reed Johnson

• Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission

a shing ton , D. C. 20555 Dr. John H. Buck

• Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Judge John F. Wolf, Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555

s ..

Judge Glenn O. Bright ,

Atomic Safety and Licensing Board 4 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Judge Jerry R. Kline Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 George E. Johnson, Esq.

Donald F. Hassell, Esq.

Office of Executive Legal Director BETH 042 U. S. Nuclear Regulatory Commission ,

Washington, D. C. 20555 e

Secretary ..

U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ATTENTION: Docketing and Service Section Mrs. Elizabeth Apfelberg 1415 Cozadero

San Luis Obispo, CA 93401 Janice E. Kerr, Esq.

Public Utilities Commission f 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

l 4623 More Mesa Drive L Santa Barbara, CA 93105 I

Mr. Gordon Silver Mrs. Sandra A. Silver l 1760 Alisal Street I San Luis Obispo, CA 93401

, Joel R. Reynolds, Esq.

I John Phillips, Esq.

Center for Law in -the Public Interest i

10951 West Pico 3oulevard Third Floor Los Angeles, CA 90064

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Bruce Norton, Esq.

Norton, Burke, Berry & Junck 3216 North Third Street - Suite 300 Phoenix, Arizona 85012 Philip A.-Crane, Jr., Esq.

Richard F. Locke, Esq.

F. Ronald Laupheimer, Esq.

Pacific Gas and Electric Company 1050 17th Street, N.W.

Suite 1180 Washington, D. C. 20036 David S. Fleischaker, Esq. l P.O. Box 1178 Oklahoma City, Oklahoma 73101 .

Arthur C. Gehr, Esq. ,-

Snell & Wilmer .e 3100 Valley Bank Center Phoenix, Arizona 85073 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K San Jose, CA 95125 Mr. Carl Neiberger Telegran Tribune 6 P. O. Box 112 San Luis Obispo, CA 93402 Byron S. Georgiou, Esq.

Legal Af fairs Secretary Governor's Office State Capitol -

Sacramento, CA 95814

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• By Hand KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N .W .

Wa.shington, D. C. 20036

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