ML20072T583
| ML20072T583 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 04/05/1983 |
| From: | Pigott D ORRICK, HERRINGTON & SUTCLIFFE, SOUTHERN CALIFORNIA EDISON CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OL, NUDOCS 8304080216 | |
| Download: ML20072T583 (11) | |
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DCCKETED-
"%RC UNITED STATES OF AMERICA
'83 APR -7 P2:09 NUCLEAR REGULATORY COMMISSION p, - n,;
%99 In.the Matter of-
)
)
SOUTHERN CALIFORNIA EDISON
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DOCKET NOS. 50-36110L COMPANY, et al.
)
50-362 OL
)
(San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
)
ANSWER TO PETITION FOR REVIEW OF EMERGENCY PLANNING ISSUES DAVID R. PIGOTT EDWARD B.
ROGIN SAMUEL B. CASEY Of ORRICK, HERRINGTON & SUTCLIFFE A Professional Corporation 600 Montgomery Street San Francisco, California 94111 Telephone:
(415) 392-1122 CHARLES R. KOCHER JAMES A. BEOLETTO SOUTHERN CALIFORNIA EDISON COMPANY P.O.
Box 800 2244 Walnut Grove Avenue Rosemead, California'91770 Telephone:
(213) 572-1212 Attorneys-for Applicants, Southern California Edison Company, San Diego Gas & Electric Company.
City of Anaheim, California and-City of Riverside, California
-Dated:
April 5, 1983.
8304080216 830'405 PDR ADOCK 05000361 Q
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UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION In the Matter of
).
)
SOUTHERN CALIFORNIA EDISON
)
DOCKET NOS. 50-361 OL COMPANY, et al.
)
50-362 OL
)
(San Onofre Nuclear Generating
)
Station, Units 2 and 3)
)
)
ANSWER TO PETITION FOR-REVIEW OF EMERGENCY PLANNING ISSUES TO THE NUCLEAR REGULATORY COMMISSION:
On March 21,:1983, Intervenors 1/.in the above-captioned proceeding, pursuant to 10 CFR 5 2.786(b),
filed " Petition for Review of Emergency Planning-Issues"
("Intervenors' Petition").
Pursuant to 10 CFR S.2.786(b)(3),
Southern California Edison Company, San Diego Gas & Electric Company, City of Anaheim, California and Citycof Riverside, California-(" Applicants") hereby submit.their " Answer to-Petition for. Review of Emergency Planning Issues" and oppose the Intervenors' Petition.
1/ The admitted Intervenors to the proceeding included.
August Carstens, Lloyd and Selma Von-Haden, Mrs. Donif Dazey,.
a group known as= GUARD-(Groups United Against Radiation i
Dangers) and Friends of the Earth.'
In conducting'the L
hearings, Charles'McClung_and;Phyllis Gallagher represented
.all Intervenors:in the emergency planning hearings and Mr.
Richard Wharton represented all Intervenors except GUARD in the seismic hearings.
GUARD did not participate with1 respect' to seismic issues, i
.~.
~
a
- V I
INTRODUCTION Intervenors' Petition attempts to raise a number of factual issues.
Intervenors complain that licensing was allowed to proceed despite the presence of alleged deficiencies in siren coverage, training of emergency workers, evacuation of the handicapped and housebound,' and I
evacuation of the ocean area adjacent'the site (Intervenors' Petition, p. 9).
These issues-are factual issues that.were.
decided consistently by both the Atomic Safety.and Licensing Board (" Licensing Board") and the Atomic Safety and Licensing Appeal Board (" Appeal Board").
Applicants submit,that according to 10 CFR $ 2.786 (b)(4)(ii), a Petition for Review does not lie with respect to the factual issues raised by Intervenors' Petition.
Applicants submit that the scope _of the ex parte rule, as it applies to FEMA involvement in licensing proceedings, has been construed and applied correctly by both the Licensing Board and the Appeal Board.
Intervenors' request that the Commission establish policy' guidelines rega: ding communications between Applicants and FEMA in contested cases exceeds the scope of appropriate review-of a licensing decision.
The admission of;the FEMA national office position concerning Applicants' emergencyjplans was.not error.
If 2:
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admission of'such evidence was error,.it-was'not-a prejudicial error.
II THE LICENSING ~ BOARD AND THE.
APPEAL BOARD WERE CONSISTENT IN THEIR FACTUAL DETERMINATIONS.
4 Despite the-clear. statement of 10 CFR 5 2.786(b)(4)(ii), Intervenors request review of factual issues that were. determined consistently by both the Licensing Board and-the Appeal' Board.
Intervenors~ allege-4 that a license should.not have been authorized in the absence of complete siren coverage, that training.of emergency workers was incomplete,Ethat plans didlnot exist for evacuation of the housebound and handicapped, and-that there were no plans for the evacuation of1the ocean' area adjacent' the site.
(Intervenors' Petition, p. 9.)
Each of the above factual issues has been determined in a concistent' manner by.
-l 3
both the Licensing and-Appeal Boards and adversely to i
Intervenors. 2/
In the absence of an allegation of inconsistency, the Petition'for Review should be denied withl respect to proposed factual issues.
l-
^
2/
The Appeal Board added.two conditions in ALAB-717.
The-conditions require'further efforts to-indentify persons _who may require individual assistance'in thefevent=of evacuation-and institution of'a program'to-train bus; drivers to respond i
.to an' evacuation.
The' Appeal' Board requiredithe subject:
I conditions.to' improve. Applicants'7 emergency. plans.
.(ALAB-717, Slip-Decision,E pp.-52-58.')': Applicants do1not construe the.two' Boards-to-have' conflicting determingtionsLon-the factualiissues.
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Intervenors' appeal concerning the level of offsite 2
medical services is not ripe for review.-
The Licensing; Board i
determined that Applicants' offsite medical services were inadequate and retained jurisdiction over that issue pending 4
further determination.
_(Southern California Edison Company, i
~
et al. (San Onofre Units'2 & 3) LBP-82-39; 15 NRC 1163, 1290 (1982).)
The issue has not yet been resolved at.the Licensing Board level and-consideration of the issue in the i
context of this Petition for-Review is premature.
'III.
INTERVENORS' ALLEGATIONS CONCERING EX PARTE COMMUNICATIONS ARE WITHOUT MERIT.
i Intervenors contend that they are entitled to notice of meetings or correspondence between Applicants and 1
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any FEMA personnel.
(Intervenors' Petition, p. 6.)
)
Intervenors admit that the issue has-been considered and
?
I denied by.both the Licensing Board and the Appeal Board.
I (Intervenors' Petition, pp. 2-3.)
Further, Intervenors admit:
i F
there are no rules in' FEMA which prohibit 1 l
ex-parte (sic) communications with decision-makers-l which require. distribution.of documents or notice of meetings between the decision makersat FEMA and
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l the. Applicants."' -(Intervenors'~ Petition, p. 7. )-~
-The Appeal: Board determined (that the Commission's.
ex parte rule did not apply-to conversations between FEMA,-
3 Applicants and NRC Staff. '(Southern California Edison Co.,
i et al.-(San Onofre Nuclear Generating-Station,1 Units.2 and
'4
~.
n.
4.
i 3), ALAB-717, Slip Opinion,-pp.'E2-63.')
Intervenors do not-contest the correctness of the Appeal Board's determination.
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Intervenors now are requesting this Commission torset policy with respect-to' communications by~ FEMA personnel.
Such-
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action is not. appropriate in the context of review of this-licensing proceeding, if at all.
IV ADMISSION OF TESTIMONY'NOT RELIED.
UPON BY EITHER THE LICENSING. BOARD OR APPEAL BOARD DOES NOT JUSTIFY GRANTING OF PETITION FOR REVIEW.
a Intervenors appear to complain that certain-testimony by witness' Ken Nauman of FEMA, Regional, was inadmissible hearsay and that its admission was prejudicial
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error.
Applicants note that 10-CFR35 2.743(c) does not
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i prohibit the admission of hearsay evidence.
Hearsay is, i-admissible in NRC proceedings.
(Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), 4 NRC 397, 411-12 (1976).).
l Further, the basis of the Appeal; Board's finding;that-the.
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testimony was inadmissible was'that the witness refused to I
L stand cross-examination on the testimony.
Regardlessfof.the 3
correctnecs of either. Board's determination, the appropriate l
question is whether= admission.of the subject-testimony has prejudiced ~the-determinations of either the:L'i' censing.Boardi r
or-the Appeal Board.
With respect:to'the Appeal' Board, the admission of the testimony. has ~ clearly. been without effect.: - The' AppealJ
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-t Board supported the Licensing Board'sJultimate conclusion based ~on the assumption, right or wrong, that the testimony should be disregarded.
Thus, admission of the testimony did not affect the Appeal Board.
(ALAB-717, Slip' Decision, pp.
67-70.)
The~ Licensing Board relied on evidence presented as to the current status of emergency planning and implementation of that planning at San Onofre.
Applicants ~
presented direct probative evidence on each issue raised by Intervenors with respect to emergency plans.
Further, as.to each issue raised, FEMA, Regional, presented its first-hand evaluation of Applicants' efforts.
FEMAzwitness Nauman corroborated the fact that Applicants were correcting-perceived defects in their emergency plans and that'such efforts were in accord with the FEMA region's view of the necessary corrective actions.
The Board recognized that Intervenors are entitled to an on-the-record hearing on the.
adequacy of emergency plans.
(LBP-82-39, 15-NRC 1163, 1217.)
The Licensing Board based its conclusions on the existing state of both the onsite and offsite emergency plans.
The admission of the disputed evidence did not affect 1
the Licensing Board's conclusion and does noticonstitute the basis for a. review by thisiCommission.
-(LBP-82-39, 15 NRC.
1163, 1213-1214.)
l Intervenors' argument continues their attempt to freeze the record available to the Licensing Board;as'of the l
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i date of FEMA's first evaluation of' San Onofre's emergency.
plans and their implementation.
Intervenors object to FEMA testimony that updates, modifies or even " rebuts" the presumptions that result from FEMA's. initial findings.
(Intervenors' Petition, pp. 9-10.)
Intervenors are here
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attempting to limit the record before-the Licensing Board to.
4 adverse FEMA determinations reached well prior to the time of hearing.
Intervenors object to ".
testimony offered to rebut the prior findings."
(Intervenors' Petition, p.:10.)
Intervenors' objection was without merit at'the time of hearing and cannot be the basis for a Petition for Review.
Intervenors' position is contrary to the Commission's policy reflected at 10 CFR S 50.47 which does not require final FEMA finding before licensing.
The regulations now specifically call for all information available to FEMA to be considered ~
2 in arriving at a licensing decision.
The Licensing Board's actions were consistent with existing regulations.
V CONCLUSION Applicants contend that Intervenors have~ failed to,
raise an issue of inconsistent factual determinations between the Boards and have failed-to raise an important issue-of 4
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2-
s policy or safety.
Intervenors' Petition for Review should be denied.
Respectfully submitted, DAVID R. PIGOTT EDWARD B.
ROGIN SAMUEL B.
CASEY Of ORRICK, HERRINGTON & SUTCLIFFE A Professional Corporation CHARLES R.
KOCHER JAMES A.
BEOLETTO SOUTHERN CALIFORNIA EDISON COMPANY DW!D R.PICM By David R. Pigott Counsel for Applicants e
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9 DECLARATION OF SERVICE BY MAIL I am over the age of eighteen years and not a party'to the above-entitled cause.
My business address is 600 Montgomery Street, 12th Floor, San Francisco, California 1^
l 94111.
1 I served the foregoing ANSWER TO PETITION FOR REVIEW OF EMERGENCY PLANNING ISSUES dated April 5, 1983, by depositing-a true copy thereof enclosed in the United States mail,'first class, at San Francisco, California, on April 5, 1983, enclosed in a sealed envelope with postage thereon fully prepaid, addressed as follows:
1982, enclosed in a sealed envelope with postage thereon fully prepaid, addressed as follows:
Stephen F. Eilperin, Esq.
Dr. Cadet H. Hand, Jr.
Chairman, Atomic Safety and Administrative Judge Licensing Appeal Board c/o Bodega Marine _ Laboratory.
U.S. Nuclear Regulatory Commission University of California Washington, D.C.
20555 P.O. Box.247 Bodega Bay, CA 94923
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Dr. Reginald L. Gotchy Atomic Safety and Licensing Mrs.-Elizabeth B. Johnson Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Oak Ridge National Laboratory Washington, D.C.
20555-Oak ~ Ridge,'TN 37830 Dr. W. Reed Johnson Robert Dietch, Vice President Atomic Safety and Licensing Southern California Edison!Co.
Appeal Board 2244 Walnut Grove Avenue U.S. Nuclear Regulatory Commission P.O. Box 800 Washington, D.C. 20555 Rosemead, CA 91770 James L. Kelley, Chairman Charles R. Kocher, Esq.
Administrative Judge James A. Beoletto, Esq.
Atomic Safety and Licensing _ Board-Southern California Edison.Co.
U.S. Nuclear Regulatory Commission
'2244 Walnut-Grove Avenue Washington, D.C. 20555 ~
P.O. Box 800 Rosemead, CA 91770 Lawrence J. Chandler, Esq.-
. Donald F. Hassell, Esq.c Mrs. Lyn Harris Hicks Nuclear Regulatory Commission; G U A R'D-Office of the Executive Legal Director. 3908 Calle Ariana Washington,~D.C. 20555 San Clemente, CA 92801 m
.s o
Richard J. Wharton, Esq.
Mr. Lloyd von Haden University of San Diego 2089 Foothill Drive School of Law Vista,.CA 92083-Alcala Park San Diego, CA 92110 James F. Davis-State. Geologist Janice E. Kerr, Esq.
Division of Mines and Geology J. Calvin Simpson, Esq.
1416 Ninth Street, Room 1341 Lawrence Q. Garcia, Esq.
Sacramento, CA 95814 California Public Utilities Commission Phyllis M. Gallagher, Esq.
5066 State Building 1695 W. Crescent Avenue San Francisco, CA 94102 Suite 222 Anaheim, CA 92801 Charles E. McClung, Jr., Esq.
24012 Calle de la Plata Atomic Safety and Licensing Suite 330 Appeal Board Laguna Hills, CA 92653 U.S. Nuclear Regulatory Commission Alan R. Watts, Esq.
Washington, D.C. 20555 Rourke & Woodruff California First Bank Building Atomic Safety and Licensing 10555 North Main-Street Board Santa Ana, CA 92701 U.S. Nuclear Regulatory Commission Gary D. Cotton Washington, D.C. 20555 Louis Bernath San Diego Gas & Electric Co.
Samuel J. Chilk 101 Ash Street Secretary of the Commission P.O. Box 1831 U.S. Nuclear Regulatory San Diego, CA 92112 Commission Washington, D.C.
20555
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Executed on April 5, 1983, in the City and County of San Francisco, State of California.
I declare under penalty of perjury that the foregoing is true and correct.
KAREN ANDRESEN-2
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