ML20069F494
| ML20069F494 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 03/21/1983 |
| From: | Mcclung C CARSTENS, A.S., FLEMMING, ANDERSON, MCCLUNG & FINCH, GUARD |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OL, NUDOCS 8303230183 | |
| Download: ML20069F494 (13) | |
Text
.'
O$$f~ED 1
Charles E. McClung, Jr.
FLEMING, ANDERSON, McCLUNG & FINCH 2
24012 Calle de la Plata, Suite 330
'83 M9,22 A11:49 Laguna Hills, California 92653 3
4 Telephone: (714) 768-3601 5
Attorneys for Intervenors 6
7 8
UNITED STATES OF AMERICA 9
NUCLEAR REGULATORY COMMISSION 10 11 l In the Matter of
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No: 50-361-OL
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50-362 OL 12 SOUTHERN CALIFORNIA EDISON
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COMPANY, et al
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13
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(San Onofre Nuclear Generating
)
14 Station, Units 2 and 3.)
)
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15 16 PETITION FOR REVIEW OF EMERGENCY PLANNING ISSUES 17 18 To: THE HONORABLE NUCLEAR REGULATORY COMMISSION OF THE 19 UNITED STATES OF AMERICA:
20 21 INTRODUCTION 22 23 The Atomic Safety & Licensing Appeal Board issued a decision March 4, 1983 (ALAB-717) generally affirming the Licensing Board's initial decision of May 14, 1982 (LBP-82-39) authorizing the issuance of a full power operating license for 28
- Stations, Units 2 and 3 the San Onofre Nuclear Generating i
8303230193 830321 gDRADOCK05000
{g 0
1
(" SONGS").
That decision was served on March 7, 1983.
Inter-2 venors, Guard and A.S.
Carstens, et al. hereby submit their 3
Petition for Review of Emergency Planning Issues pursuant to 10 4
CFR Section 2.786(b).
5 6
I 7
BACKGROUND 8
9 l
On the second day of the hearing in this matter 10 Intervenors raised the issue of the status of the Federal 11 Emergency Management Agency (" FEMA") by an oral motion (Tr. 7420, i
12 et sec.).
If FEMA was going to be an agent for the Staff in 13 these proceedings it would be performing a quasi-judicial 14 function for the NRC in reviewing the emergency plans because its 15 determination would be considered as a rebuttable presumption 16 under 10 CFR 550.47(a).
Any communications directly or indir-17 ectly between the Applicants and the national level policy making 18 body issuing those findings could only be done on notice to the 19 Intervenors because the ex-parte communications provisions of 10 20 CFR 2.780 should apply (Tr. 7422).
The motion requested such 21 notice.l No ruling was made at that time on the Motion despite 22 the fact that Intervenors protested that they would later have to 23 move to exclude any testimony or conclusions purporting to come 24 from FEMA which would rebut FEMA's formal findings.
The Licens-25 ing Board ultimately ruled that the provisions of the ex-parte 26 27
- 1. There is no doubt Intervenors would receive Staff / Applicant 28 correspondence, or notice of meetings. Carolina Power and Light Company, (Sharon Harris Nuclear Power Plant, Units 1,2,3 and 4),
ALAB-184 7 AEC 229 (1974); Vermont _ Yankee Nuclear Power Cor-poration, ALAB-179 7 AEC 159 (1974),
1 communications ban did not apply to any conversations or writing 2
to FEMA and overruled the Motion. This ruling was upheld by the 3
Appeal Board (ALAB-717 at 62).
4 5
Intervenors and Staff submitted FEMA findings of June 6
3rd
(" Interim Findings") as an exhibit in this proceeding 7
(Intervenors' Exhibit #15).
The Licensing Board found that for 8
purposes of this proceeding those findings were to be given the 9
effect of the rebuttable presumption provided in 10 CFR 10 S50.47(a). The Interim Findings formed the basis of many of the 11 Intervenors contentiens in this case and many of the deficiencies 12 pointed out in those findings were not corrected at the time of 13 the hearing (LBB-82-39 at 71 et seq.).
14 15 Applicants and Staff in order to deflate and devalue 16 Intervenor's evidence based on the FEMA documents, sought to show 17 that the relevance of the Interim Findings was generally minimal 18 because ongoing work was being done to correct the deficiencies 19 outlined in the FEMA documents.
20 21 This line of reasoning goes, that because work is being l
22 done to correct the " deficiencies and because this work is of a 23 specified " doable" nature a finding of adequacy can generally be 24 made with respect to most of the significant contentions in issue 25 without specifically addressing the Intervenors' objections.
i 26 27 In this regard Applicants introduced Exhibit # 144 which 28 is a letter from their office to FEMA proposing certain correc-l I
tive measures to be taken to remedy the major concerns identified 2
in the Interim Findings.
This document was allowed in evidence 3
by Intervenors simply as showing some evidence that work is being 4
done, but not for the purpose of showing FEMA had agreed that if 5
those actions were done, a favorable finding of adequacy would be 6
given (Tr. 9147).
7 8
The distinction is important because it simply indic-9 ates what the Applicants are and will be doing in emergency 10 planning area.
It does not prove that a finding of adequacy will 11 be issued by FEMA under precise conditions.
12 13 When the Staff presented a FEMA Staff person, Mr.
14 Nauman, as a witness in this proceeding the Intervenors did not 15 object to his first hand personal knowledge testimony as to the 16 adequacy of the plans and as to the Intervenors' contentions and 17 that evidence was admitted without objection.
18 19 But the Staff went further with Mr. Nauman and asked 20 him to admit a piece of testimony purporting to state the " FEMA 21 national view" (see; LBP-82-39 at 75).
This additional testimony 22 simply asked Mr. Nauman whether he was familiar with the 23
" national view" with respect to emergency planning at San Onofre 24 to which he replied, "yes".
He then states that " view", viz., if 25 the Applicants complete adequately the corrective actions 26 proposed in Applicants' Exhibit #144, FEMA will be in a position 27 to issue a finding that there is reasonable assurance that the 28 health and safety of the public can be protected.
f 1
This line of testimony was vehemently objected to by 2
Intervenors both at the onset and through subsequent motions to 3
strike.
(Tr. 10,377, 10,439.)
4 5
This testimony violates the letter in the spirit of the 6
regulations and the Memorandum of Understanding ("MOU").
The MOU 7
provides for and contemplates testimony by FEMA Staff as to their 8
personal knowledge of the emergency plan and contemplates the use 9
of FEMA findings as a rebuttable presumption in the hearing 10 process. But it does not contemplate a use of the Staff witness 11 tc. rebut the FEMA findings by making a prediction of future PEMA 12 findings.
45 Fed. Reg. 82713 (December 16, 1980).
13 l
14 Under cross-examination Mr. Nauman stated that he could 15 discuss this general conclusion but he could not evaluate "the 16 FEMA national view" on each of the corrective measures.
(Tr.
17 10,437)
The Licensing Board refused to allow the Intervenors to 18 probe the nature and extent of Mr. Nauman's personal knowledge 19 with respect to this general statement.
(Tr. 10,431)
The Appeal 20 Board agreed that this testimony was inadmissible but determined 21 that the error was not prejudicial.
22 23 The prejudicial character of the Licensing Board's 24 error in this regard is clear.
The admission of this FEMA 25 evidence provides the basis for the Licensing Board's deter-26 mination that an adequate FEMA finding will come in the future.
27 This served as a basis for the Licensing Board's decision that 28 the corrective actions which are left to be taken were essen-1 tially simple, verifiable and easy.
This allowed the Licensing 2
Board to side-step actual decisions on these areas of potential 3
inadequacy and leave them for future confirmation by the Staff or 4
to the Applicants alone.
5 6
II 7
COMPLIANCE WITH 10 CFR S2.786 8
1.
Issues tendered for Review.
9 10 Intervenors respectfully request that the Commissicn 11 review the decision of the Atomic Safety and Licensing Appeal 12 Board in this matter dated March 4, 1983 (ALAB-717) as regards 13 the status of FEMA in contested licensing cases.
Intervenors 14 specifically request that this Commission review the Appeal 15 Board's decisions that:
16 ISSUE ONE:
17 Intervenors are not entitled to notice of 18 any kind of meetings or correspondence 19 between any of the Applicants personnel 20 and any of FEMA's personnel; and 21 ISSUE TWO:
22 The Appeal Board's decision that it was 23 not prejudicial error for the Licensing 24 Board to admit into evidence the hearsay 25 statement by a FEMA witness used to rebut 26 the prior FEMA findings.
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1
- 2. The Issues were raised previously.
2 3
These issues were raised in the Licensing Board hearing 4
and before the Appeal Board.
See ALAB-717 at 61 et seq; 5
LBP-82-39 at 67 et seg.
6 7
- 3. The Appeal Board erred.
8 9
The decision that no notice is required of Appli-10 cant / FEMA communications puts the FEMA decision makers out of 11 reach of the scrutiny of Intervenors in an unfair way.
The FEMA 12 staff review when formulated into findings will serve as a 13 rebuttable presumption in the hearing process. This makes the 14 testimony of the FEMA witness stronger and more important than 15 that of a normal expert witness - for example, the testimony of 16 the U.S.
Geological Survey on seismic issues.
The NRC Staff 17 itself performs very little, if any, review of the FEMA findings 18 and determinations.
Hence, the NRC has essentially delegated the 19 function of review of emergency plans to FEMA.
Yet when FEMA 20 exercises this quasi judicial function, there is no possible 21 review by the Intervenors because there are no rules in PEMA 22 which prohibit ex-parte communications with decision makers or 23 which require distribution of documents or notice of meetings 24 between the decision makers at FEMA and the Applicants.
25 26 Unfortunately what this produces is a typical closed 27 door decision-making process in which important safety concerns 28 are omitted from FEMA review or are placated by under the table 1
promises from the Applicants.
The policy reasons why the NRC 2
serves notice of meetings between the Applicants and NRC Staff 3
and prohibits ex-parte communication with decision makers should 4
apply to the FEMA Staff and the FEMA decision makers respect-5 ively.
6 7
The record in this case indicates that certain high 8
level officials of the Applicants met with certain high level 9
officials of FEMA in June 1981 within weeks after the initial 10 unfavorable FEMA findings were issued in this matter.
Within 11 days following that meeting another meeting was held between 12 Applicants and FEMA during which a corrective program was arrived 13 at for resolving the various deficiencies.
The Intervenors were 14 neither advised of or notified of either of these meetings until 15 long after the fact.
It is Intervenors position that numerous 16 contested issues in the case could have been resolved if Inter-17 venors had been invited or notified of these meetings.
Numerous 18 potential safety problems were swept under the rug so that they 19 would not hold up the licensing.
20 21 The second decision of the Appeal Board holding that 22 the admission of Mr. Nauman's hearsay prediction of future FEMA 23 findings is erroneous for much the same reasons.
A quick review 24 of the Licensing Board's decision in this matter will serve to 25 show that the Licensing Board was strongly influenced by FEMA's 26 apparent nonchalance regarding the corrective actions which 27 needed to be taken at SONGS.
28
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1 The series of corrective actions which were arrived at at 2
the "ex-parte" meetings discussed in the paragraphs above were 3
taken to be simple and " doable".
The final testimony proposed by 4
the Staff through the FEMA witness was to the effect that if the 5
Applicants do what they say they will then FEMA will find the 6
plans adequate.
The admission of this evidence was extremely 7
persuasive to the Licensing Board.
It allowed the Board to find 8
that there was reasonable assurance that emergency planning would 9
be taken care of in the future.
For instance, the Licensing 10 Board allowed the licensing of the plant despite the fact that 11 there was no siren capability in a large portion of the emergency 12 planning zone. The Licensing Board allowed the continued oper-13 ation of the plant despite the fact that emergency medical 14 facilities were not in place for the general public.
The 15 Licensing Board allowed the operation of the plant despite the 16 fact that the training programs had not been developed or 17 implemented for emergency planning officials and workers.
The 18 Licensing Board allowed the operation of the plant despite the 19 fact that no plans existed for the evacuation of the housebound, 20 the handicapped and the school children.
The Licensing Board 21 allowed the plant to operate despite the fact that there were no 22 plans in place for the evacuation of the ocean EPZ surrounding 23 the plant.
24 25 obviously, this piece of testimony was more than simply 26 a hearsay statement correctly ruled to be inadmissible by the 27 Appeal Board.
It was a statement which challenged the very 28 fundamentals of the Memorandum of Understanding by allowing a
_9_
1 FEMA witness to go beyond the testimony as to the adequacy of the 2
plans to rebut the findings and conclusions that had already been 3
formally adopted by the Washington Office of FEMA regarding the 4
plant.
Intervenors had no objection to the FEMA witness testi-5 fying from his own personal knowledge as to the status of the 6
emergency planning.
What they objected to was his testimony 7
offered to rebut the prior findings.
8 9
4.
Commission Review should be exercised.
10 11 Intervenors respectfully request that the Commission 12 review the emergency planning issues in this case with an eye 13 toward resolving the scope and nature of the participation of 14 FEMA in the licensing process.
The Commission should establish 15 policy guidelines regarding communications between Applicants and 16 FEMA in contested cases and the use of FEMA findings and testi-17 mony.
These are important policy issues which can be addressed 18 in the context of this decision and which should be addressed in 19 the interests of the health and safety of public surrounding 20 SONGS and nuclear power plants in general.
It is Intervenors 21 position that FEMA is an important player in the process but that 22 the Intervenors too are important players in the process and that 23 their input can be made more helpful to the Licensing Board, the 24 Commission and the general public if they are allowed access to 25 the FEMA witnesses and if the FEMA testimony and findings are 26
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1 1
used in a legal, logical and fair way in the hearings.
2 1
3 Respectfully submitted, 4
[
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6 By:
/ ' /TA2.'C /
C' 1
T.haqles E.
McChing, Jr.
/
(fj);
7 Attorneys for Intervenors
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8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
. l
4 UN]TED S'l ATES OF AMER] CA NUCLEAR REGULATORY COMM3SS3ON 3n the Matter of
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Docket Nos. 50-361 OL SOUTHERN CAL 3 PORN 3A ED3 SON COMPANY,
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(San Onofrc Nuclear Generating Station,)
Units 2 and 3)
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CERT 3F3CATE OF SERV 3CE I certify pursuant to 10 CFR, Section 2.712(e)(2) that on March 21, 1983 I served the attached " PETITION FOR REVIEW OF-EMERGENCY PIANNING ISSUES" in the above entitled action by placing a true copy thereof enclosed in the United States mail, first class (or b asterisked)y Express Mail or other expedited service where at Laguna Hills, California, addressed as follows:
Spence Perry, Esq.
Federal Emergency Management Stephen F.'Eilperin, Esq.
Agency Ch a i rn.an, Atomic Safety and Office of General Counsel Licensing Appeal Board Room 840 U.S.
Nuc] ear Regulatory Commission 500 C Street, S. W.
Washington, D.C.
20555 Washington, D. C. 20472 James L.
Ke33ey, Esq., Chairman David R.
Pigott, Esq.
Administrative Judge Samuel B.
Casey, Esq.
Atomic Saf ety and Licensing Board John A.
Mendez, Esq.
U.S.
Nuc3 car Regulatory Commission Edward B.
Rogin, Esq.
Washington, D.C.
20555 of Orrick, Herrington & Sutc35f' A Prof essional Corporation Dr. Cadet H.
- Hand, Jr.,
600 Montgomery Street Administrative Judge San Francisco, California 9433:.:
c/o Bodega Marine Laboratory University of California A3an R.
Watts, Esq.
P.O.
Box 247 Daniel K.
Spradlin bodega Bay, Ca]ifornia 94923 Rourke 6 Woodruff 1055 North Main Street, fl020 Dr. Reginald L. Got chy Santa Ana, Ca3ifornia 92701 Atomic Safety and Licensing Appeal board Dr. W.
Reed Johnson U.S. Nuc] c ar Regu] a t ory.Commi ssi on
, Atomic Safety and Licensing Rasnington, D.C.
20555
- Appea] board U.S. Nuc] ear Regu] atory ConJni ss m
wm
Mrs. Elizabeth P. Johnson, Richard J. Pharton, Esq.
Administrative Judge University of San Diego Oak Ridge National Laboratory School of Law A]cala Park P.
O.
Box X, Building 3500 San Dieco, California 92110 Oak Ridge, Tennessee 37830 Mrs. Lyn Harris Ficks Janice E.
Kerr, Pso.
GUARD J.
Calvin Simpson, Fsq.
3908 Calle Ariana Lawrence O. Garcia, esc.
San Clemente, California 92672 California Utilities commission 5066 State Building A.
S. Carstens San Francisco, California 94102 2071 Caminito Circulo Norte Mt. La Jolla, California 92037 Charles R.
Kocher, Esq.
James A.
Beoletto, Esc.
Southern California Fdison Company Lawrence J.
Chandler, Esq.
4244 Walnut Grove Avenue Rosemead, California 91770 U.
S.
Nuclear Regulatory Commission Gary D.
Cotton Office of the Fxecutive Louis Bernath Legal Director San Diego Gas & Flectric Company Washington, D. C.
20555 P.
O.
Box 1831, 101 Asn Street San Dieco, California 92112 Atomic Safety and Licensing Appeal Board Panel Phyllis M.
Gallacher, Esc.
U.
S.
Nuclear Reculatory 1695 West Crescent Avenue Commission Suite 222 Washinoton D.
C.
20555 Anaheim, California 92701
- Secr etary Robert Dietch, Vice President U.
S. h'uclear Reculatory Comm.
Southern Edison California Company Attn:
Chief, Docketing &
P.
O.
Box 800 Service Branch 2244 Falnut Grove Avenue Washington, D.
C.
20555 Rosemead, California 91770 (3 copies) 1 L_
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