ML20079J154
| ML20079J154 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/20/1982 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8212280123 | |
| Download: ML20079J154 (40) | |
Text
'
i i~~ 0 2 8. H sll.
j.
1 I r.c.tv.ETED JsWC l
82 EC 27 pn :00 l
+ ; ~ Af ,
UNITED STATES OF AMERICA C NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l
)
In the Matter of ) Docket No. 50-275
) Docket No. 50-323 PACIFIC GAS AND ELECTRIC )
COMPANY ) (Full Power Proceeding)
)
(Diablo Canyon Nuclear Power )
Plant, Units Nos. 1 and 2) )
)
PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO ..
JOINT INTERVENORS' AND GOVERNOR BROWN'S"- '
BRIEFS IN SUPPORT OF. EXCEPTIONS l l J
December 20, 1982 1
8212280123 821220 'i PDR ADOCK 05000275 C l
.PDR e
t TABLE OF CONTENTS Page I INTRODUCTION . . . . . . . .
..'. . . . . . . . 1 II ARGUMENT . . . . . . . . . . . . . . . . . . . 5 A. The State Of Emergency Preparedness At Diablo Canyon Complies With The Commis-sion's Regulations . . . . . . . . . . . . 5 B. The Licensing Board Correctly Ruled That It Had No Jurisdiction To Consider The Effects Of Earthquakes On Emergency Planning . . . . . . . . . . . . . . . . . 10 C. The Licensing Board Properly Used The l Federal Emergency Planning Zone . . . . . 11 D. No Deficiencies Exist Which would Preclude Licensing . . . . . . . . . . . . 16 (1) State Preparedness . . . . . . . . . 16 i 1
(2) County Standard Operating Proce-dures And Letters of Agreement . . . 20 (3) Public Education . . . . . . . . . . 21 (4) Public Response And Plan Implemen-tation . . . . . . . . . . . . . . . 22 (5) Emergency Communications . . . . . . 23 E. The ASLB Properly Refused To Reopen The Environmental Record For Consideration Of A Class 9 Accident . . . . . . . . . . 25 F. Joint Intervenurc' Exception to the ASLB Decision On Power Operated Relief Valves Does Not Raise Issues Within Their Contentions Or The Record Of This Proceeding . . . . . . . . . . . . . . . . 30 G. The Licensing Board Did Not Err In Deny-ing Joint Intervenors' Proposed Conten-tions In Its August 4, 1981, Order . . . . 32
-i-m
TABLE OF AUTHORITIES CASES Page(s)
Federal Court Cases Carolina Environmental Study Group v. United States, 510 F.2d. 796 (D.C. Cir. 1975) . . . . . . . . 28 Hodder v. Nuclear Regulatory Commission, 9 ELR 20058 (D.C. Cir. 1978) . . . . . . . . . 28 Younger v. Harris 401 US 37 (1971) . . . . . . . . . . . . . . . 16 l
Administrative Cases
~~In the Matter of Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1)
Docket 50-289-SP, Restart, Partial Initial Decision . . . . . . . . . . . . . . . . . . . 17,18,19 In the Matter of Pacific Gas and Electric Company i (Diablo Canyon Nuclear Power Plant, Units 1 and 2, Docket Nos. 50-275, 50-323 Partial Initial Decision, 7 NRC 989 (1978) . . . . . . . . . . 27 Director's Decision under 10 CFR 2.206, March 26, 1981 . . . . 29 Memorandum and Order, June 19, 1981 . . . . . . . . . . . . 28,29 Memorandum and Order [CLI-81-22]
September 21, 1981 . . . . . . . . . 1 Memop*-ium and Order Qt; ember 11, 1981 . . . . . . . . . . 32 Memorandum and Order, December 23, 1981 . . . . . . . . . . 2
-ii-0 _ _ _ _ _ _ _ _ _ .
o -
Administrative Cases (cont'd) Page(s)
Commission Order March 18, 1982, 15 NRC 404 . . . . . 29 Initial Decision, August 21, 1982 . . . . . . . . . . . 9,13, 24,31 i In the Matter of Public Service l Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1) ALAB-650, 14 NRC 43 (1981) . . 3 l
In the Matter of Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3, Memorandum and Order
[CLI-81-33] December 8, 1981 . . . . . . . . . 2,11 In the Matter of Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3) LPB-82-39, 15 NRC 1163 (1982).) 20 In the Matter of Tennessee Valley Authority (Huntsville Plant, Units 1A, 2A, 1B and 2B)
ALAB-367, 5 NRC 92 (1977) . . . . . . . . . . . 3 Statutes 42 USC 2014(e)(2) . . . . . . . . . . . . . . . . . 15 42 USC 2021 . . . . . . . . . . . . . . . . . . . . 13,14,20 42 USC 2021(a)(1)(2) . . . . . . . . . . . . . . . . 13 42 USC 2021(a)(1)(3) . . . . . . . . . . . . . . . . 13 42 USC 2021(d) . . . . . . . . . . . . . . . . . . . 14 42 USC 2021(d)(2) . . . . . . . . . . . . . . . . . 15 42 USC 2021(o) . . . . . . . . . . . . . . . . . . . 15,16 42 UsC 2022 . . . . . . . . . . . . . . . . . . . . 15 42 USC 2113 . . . . . . . . . . . . . . . . . . . . 15 42 USC 2113(b) . . . . . . . . . . . . . . . . . . . 15 92 Stat. 3036 . . . . . . . . . . . . . . . . . . . 14 94 Stat. 787 . . . . . . . . . . . . . . . . . . . 14
-iii-
...O
4 Regulations Page(s) 10 CFR 2.758 . . . . . . . . . . . . . . . . . . . . 20 10 CFR 2.762(a) . . . . . . . . . . . . . . . . . . 3 10 CFR 2.762(b) . . . . . . . . . . . . . . . . . . 6 10 CFR 50.47(a)(1) . . . . . . . . . . . . . . . . . 9 10 CFR 50.47(a)(2) . . . . . . . . . . . . . . . . . 7,10,16 10 CFR 50.47(b)(7) . . . . . . . . . . . . . . . . . 22,23 l 10 CFR 50.47(c)(2) . . . . . . . . . . . . . . . . . 11,12,19 10 CFR 50, Proposed Annex to Appendix D . . . . . . 27,28 1 10 CFR 50, Appendix E, Section IV.D. . . . . . . . . 22 1
40 CFR 1502 . . . . . . . . . . . . . . . . . . . . 26 40 CFR 1502.9(c)(1) . . . . . . . . . . . . . . . . 26 s
44 CFR 350.3(f) . . . . . . . . . . . . . . . . . . 9 44 CFR 350.7 . . . . . . . . . . . . . . . . . . . . 9 EPA 510/1-78-016 . . . . . . . . . . . . . . . . . . 19 NEPA Policy Statement, 45 Fed. Reg. 40102 . . . . . . 26,27,29 NUREG-0396 . . . . . . . . . . . . . . . . . . . . . 19 NUREG-0654 . . . . . . . . . . . . . . . . . . . . . 19,22
-iv-0
. o 1 I 2 INTRODUCTION 3 On May 9, 1979 the Joint Intervenors filed a 4 motion to reopen the Diablo Canyon full-power licensing pro-5 ceeding based in part on emergency planning issues which 6 arose out of the Three Mile Island accident. Joint Inter-7 venors filed a second motion on March 24, 1981, raising 8 seventeen additional TMI-related contentions.
9 The Board admitted an emergency planning conten-10 tion and a valve qualification contention in the low-power 11 hearings held May 19-22, 1981, but limited issues to those 12 relevant to fuel loading and low power testing. Full com-f 13 pliance with the NRC's revised emergency planning regula-14 tions for full power operation had therefore not been pre-15 viously litigated in this proceeding.
16 During a conference of Counsel held on July 1, 17 1981, the parties discussed Joint Intervenors' Statement of 18 Clarified Contentions dated June 30, 1981. On August 4, 19 1981, the Board issued a Memorandum and Order admitting a 20 restated emergency planning contention.
21 On September 21, 1981, the Commission issued its 22 Memorandum and Order (CLI-81-22] authorizing fuel loading 23 and low power testing at Diablo Canyon Power Plant, Unit 1, 24 subject to several enumerated conditions. One condition 25 required that contentions 10 and 12 from the Joint Inter-26 venors Statement of Contentions (for fuel load and low power
. o 1 testing) dated December 3, 1980, be included in the full 2 power proceeding. The Board accepted these contentions for 3 purposes of litigation in its order dated September 30, 4 1981. In an order dated December 11, 1981, the Appeal Board 5 noted that the Commission's acceptance of Contention 12 had 6 the practical effect of admitting Joint Intervenors' Clari-7 fied Combined Contentions 8 and 9 (for full power) dated 8 June 30, 1981.
9 Following the prehearing conference of December 10 16, 1981, the Licensing Board issued its Memorandum and ,
I 11 Order of December 23, 1981. In that order, the Board:
l l 12 (i) Denied it had jurisdiction to consider impacts on 13 emergency planning of earthquakes which might cause, or 14 occur during, an accidental radiological release based on 15 the Commission's decision in San Onofre, [CLI-81-33]
16 December 8, 1981; (ii) Denied the Joint Intervenors' request 17 for certification to the Commission of a question about the 18 use of a " FEMA agency finding" or a " FEMA staff report" in l 19 carrying out 10 CFR 50.47; and (iii) Denied Joint 20 Intervenors' revised Contention 14 relating to the 21 environmental qualification of Class 1-E equipment.
22 The hearing was held in Avila Beach, California 23 January 19 through January 26, 1982. Closing pleadings were 24 filed by the parties and on August 31, 1982 the Board issued 25 its initial decision authorizing the Director of Nuclear 26 Reactor Regulation to issue a full-power operating license o ____
. o 1 for Units 1 and 2 of the Diablo Canyon facility subject to 2 certain conditions and the express caveat that the decision 3 did not 4 "
... impinge in any way on the sta-tus of the Commission's suspension 5 of the Diablo Canyon Plant's low-power license ... or on the in-6 dependent design verification pro-gram ordered by the Commission. . ."
7 (Decision at 219.)
l 8 All parties filed exceptions to the Initial Decision and 9 supporting briefs. This pleading is PGandE's response to 1 l
10 the exceptions filed by Joint Intervenors and Governor l 11 Brown. '
12 At the hearing three issues were litigated. Those 13 issues involved (1) emergency planning, (2) pressurizer 14 heaters, and (3 ) power-operated relief and block valves.
15 Joint Intervenors filed 197 exceptions to the initial 16 decision and Governor Brown filed 97. In their supporting 17 briefs both Joint Intervenors and Governor Brown abandon the 18 majority of the exceptions previously raised. _1f l 19 20 1_/ Governor Brown did not brief his exception nos. 3-7, 9, 11, 13-14, 16-17, 19, 21-22, 25, 30, 32-39, 47-48, 50, 21 54, 58-77(i), 77(k), 77(m)-80, 83. Joint Intervenors did not brief their exception nos. 1, 5-6, 8-13, 16, 22 18-19, 21-22, 24, 32-35, 37-42, 48, 50-61, 63-73, 77, 93-94,96-112, 116, 121-123, 126-135, 137-146, 150-173, 23 175-186, 188. 10 CFR S 2.762(a) provides that with respect to each exception the brief shall specify the 24 precise portion o_f the record relied upon in support of the assertion of er~'r. See also, Public Service 25 Electric and Gas C_o. (Salem Nuclear Generating Station, Unit 1) ALAB-650, 14 NRC 43 (1981); Tennessee Valley 26 Authority (Huntsville Plant, Units 1A, 2A, 1B and 2B)
ALAB-367, 5 NRC 92, 104 n. 59 (1977).
__ _o____________-___.__
g 1-1 The allegations in Joint Intervenors' brief will 2 be addressed seriatim. The issues covered in Governor 3 Brown's brief are almost totally subsumed by the Joint 4 Intervenors' brief and will be addressed only as they might 5 differ from the Joint Intervenors. The Joint Intervenors 6 raise the following issues:
7 A. Whether the Licensing Board erred in conclud-8 ing that the state of emergency preparedness at Diablo 9 Canyon complies with the Commission's regulations.
10 1. Whether the Licensing Board's approval 11 of emergency preparedness at Diablo Canyon allegedly absent 12 FEMA findings and completed offsite plans violates the 13 Commission's regulations.
14 2. Whether the Licensing Board's refusal to 15 consider evidence regarding the effects of a major earth-16 quake on emergency response violates the due process clause 17 of the United States Constitution, the Atomic Energy Act, 18 and the commission's regulations.
19 3. Whether the Licensing Board's failure to 20 require emergency preparedness throughout the State emer-21 gency planning zones violates established principles of 22 federal-state comity.
23 4. Whether significant deficiencies existed 24 in:
25 (a) state preparedness.
26 /// ..
O
. e 1 (b) county standard operating pro-2 cedures and letters of agreement.
3 (c) public education.
4 (d) public response and plan implemen-5 tation.
6 emergency communications.
(e) 7 5. Whether, if the above alleged 8 deficiencies do exist, the Licensing Board's authorization 9 of the license constitutes an abuse of discretion.
10 B. Whether the Licensing Board erred in failing 11 to require compliance with the National Environmental Policy 12 Act prior to authorizing full power operation.
13 C. Whether the Licensing Board erred in finding r
1 14 that the power operated relief and block valves at Diablo 15 Canyon have been adequately designed, constructed, and 16 tested.
17 D. Whether the Licensing Board erred in denying 18 Joint Intervenors' right to a hearing on relevant 19 contentions raising significant safety issues.
20 II 21 ARGUMENT 22 A. The State Of Emergency Preparedness At Diablo Canyon Complies With The Commis-23 sion's Regulations.
24 Joint Intervenors ignore both logic and the record 25 and misconstrue regulations in arriving at the contrived 26 conclusion that emergency preparedness at Diablo Canyon does l
R
- . -o 1 not comply with applicable regulations. At the very start 2 of their argument Joint Intervenors, with no citation to the <
l 3 record, 2/ claim that "none of the relevant plans had been 4 completed, and essential local, state and federal reviews 5 and approvals remained no more.than an expectation on the 6 part of PGandE and the Staff." (J.I. Br. at 11.) In fact, 7 the Diablo Canyon Power Plant Emergency Plan, Rev. 3 and 8 associated procedures (Applicant's Exhibits 73, 74, 74A, 75, 9 75A, 76, and 77) were completed. The plan, as a living 10 document, underwent further revision as a result of NRC 11 comments concerning the successful August 19, 1981, exercise 12 (PGandE prefiled testimony, p. 1-2 and Exhibit t
13 (Attachment) 5). The County Plan, Revision B dated October 14 1981, was also undergoing further revision at the time of 15 hearing (Ness, Tr. 12449) but had received interim approval 16 by the county Board of Supervisors on January 18, 1982, 17 (MacElvaine, Tr. 12239.). 3/ The revised State plan was 18 issued in March 1981, and reviewed by FEMA against NUREG 19 ///
20 2/ In this brief, as in all others submitted by Joint 21 Intervenors during the past seven to nine years, Joint Intervenors continue to make factual allegations with-22 out citation to the record in direct contravention of 10 C.F.R. $ 2.762(b).
23 3_/ The San Luis Obispo County Board of Supervisors i 24 approved the submittal of the County plan to the State and FEMA for final review on April 19, 1982, and 25 subsequently approved the final version of the plan on September 27, 1982. (PGandE Notification To The Board, 26 October 6, 1982.)
______l_____
1 0654. (Eldridge, Tr. 12708 and PGandE prefiled testimony, 2 Exhibit (Attachment) 2, page 2.) At the time of the hearing 3 the State was revising their plan and had virtually 4 completed their standard operating procedures. (Eldridge, 5 Tr. 12708.) The SOPS for the two primary response agencies, 6 the State Office of Emergency Services and the State 7 Radiological Health Bureau, were drafted October 1981, and 8 August 1981, respectively. (PGandE Exhibits 82 and 82A and 9 Tr. 12770-71.) It is incorrect, therefore, to characterize 10 the state's standard operating procedures as "only now being 11 prepared". (J.I. Br. at 18.) Furthermore, FEMA stated that 12 in California it was the County, not the State, which has 13
( the primary responsibility for protecting life and property; 14 the State does have responsibility for the ingestion 15 pathway, for reentry and recovery, and could respond in 16 these areas with prearranged help from federal agencies.
17 (Eldridge, Tr. 12709-10.)
18 The Nuclear Regulatory Commission, in determining 19 the adequacy of offsite emergency preparedness, relies upon 20 the FEMA findings and determinations to determine whether 1
21 " state and local emergency plans are adequate and capable of l 22 being implemented. . . .
Such a determination creates a 23 rebuttable presumption on the question of adequacy. (10 CFR 24 50.47(s)(2).) NRC and FEMA entered into a " Memorandum of 25 Understanding Relating to Radiological Emergency Planning 26 and Preparedness" on November 4, 1980, which provided that l
0.._.____
. o l 1 FEMA could furnish to NRC interim findings and determina-l 2 tions for use in the NRC licensing process. In conformity 3 therewith, FEMA issued its interim findings in a report 1
4 dated November 2, 1981, and in a Memorandum dated 5 November 17, 1981. Certain corrective actions were identi-6 fied therein and categorized as "primarily administrative in 7 nature" and as not precluding "the Atomic Safety and 8 Licensing Board from making a finding of reasonable 9 assurance of adequate offsite preparedness capability at 10 this time." (Staff Exhibit 35.)
11 FEMA properly concentrated primarily on the County 12 plan and not the State plan because, as stated previously, 13 it is the County which has the basic responsibility for 14 protection of life and property. The record does reflect 15 that FEMA is cognizant of state preparedness in the areas of 16 reentry and recovery, and ingestion pathway sampling, areas 17 where the state is primarily responsible. (Eldridge, Tr.
18 12709) It goes without saying that as a consequence of 19 reviews, critiques, drills and exercises any plan will be 20 subject to continual change and upgrading. Therefore, what 21 the FEMA findings must do is to measure the sufficiency of 22 both the current and reasonably foreseeable future level of 23 preparedness. This is what it has done. Neither logic, 24 common sense, nor the regulations require that all emergency 25 planning and preparedness criteria must be 100 percent 26 satisfied before the requisite approvals of the licensing i
, o
. o 1 board can issue. Instead, the regulations require a 2 standard of " reasonable assurance." (10 CFR 50.47(a)(1).)
3 The Commission itself has proposed clarification of 4 $ 50.47(a)(1) to the effect "that findings on emergency 5 planning required prior to license issue are predictive in 6 nature and do not need to reflect the actual state of 7 preparedness at the time the finding is made." (46 Fed. Reg.
8 61134-5, Dec. 15, 1981.) The Initial Decision recognizes 9 this approach when it mandates that FEMA will keep " abreast 10 of current developments in the plan and review it when it's 11 comp 3ete." (Initial Dec. at 17.)
12 The Joint Intervenors incorrectly interpret the 13 regulations when they state that the FEMA review has been 14 inadequate. Their main point seems to be that some " formal" 15 FEMA finding must be issued and that prior to that " formal 16 finding," all plans and operating procedures must be 17 completed (all t(s) crossed and all i(s) dotted) and 18 submitted to and approved by FEMA as part of a rather formal 19 process.
20 In fact, the regulations permit much morc 21 latitude. FEMA may conduct a review according to the 22 proposed 44 CFR Part 350 (47 Fed. Reg. 36386) either through 23 a formal submittal by the State (44 CFR 350.7) or when 24 requested by the NRC "for use as needed in the NRC licensing 25 process." (44 CFR 350.3(f).) Furthermore, 6 350.3(f) 26 states that the FEMA review involves " findings and w _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _
. o 1
1 determinations on the current status of emergency 2 preparedness around particular sites. . . .
10 CFR 50.47 3 (a)(2) states that "[t]he NRC will base its finding on a 4 review of the Federal Emergency Management Agency findings 5 and determinations. " The words "and determinations" were 6 conspicuously omitted from the Joint Intervenors' quotation 7 of this rule.
8 The regulations, therefore, do not require a 9 " formal finding" on the part of FEMA. " Findings and 10 determinations" can be made by FEMA based upon any and all l 11 information available. The results are transmitted to the 12 NRC and are then used in a licensing determination. The i 13 ASLB Initial Decision correctly followed this procedure in I'
14 basing its decision on the " fi nding" by FEMA. A formal 1
15 finding by FEMA may be made later as part of the ongoing 16 review process but such a formal finding is not required 17 during the licensing stage.
18 B. The Licensing Board Correctly Ruled That It Had No Jurisdiction To Consider The 19 Effects Of Earthquakes On Emergency Planning.
20 21 In its December 23, 1981 Prehearing Conference 22 Order, the Licensing Board ruled that the impact on 23 emergency planning of earthquakes which cause or occur 24 during an accidental radiological release was beyond its 25 authority to consider. The December 23, 1981 ASLB Order was 26 based upon the Commission's holding in its San Onofre O
Q
. o 1 decision of December 8, 1981 (supra, p. 2). Two quotations 2 from the Commission's Order suffice to indicate that the 3 Commission has chosen to deal with the subject of the impact 4 of earthquakes on emergency planning on a generic basis:
5 "Whether or not emergency planning re-quirements should be amended to include 6 these considerations is a question to be addressed on a generic, as opposed to 7 case-by-case basis." (Order 1, 2) 8 "The Commission will consider on a ge-neric basis whether regulations should 9 be changed to address the potential im-pacts of a severe earthquake on emergen-10 cy planning. For the interim, the proximate occurrence of an accidental 11 radiological release and an earthquake that could disrupt normal emergency 12 planning appears sufficiently unlikely that consideration in individual li-13 censing proceedings pending generic consideration of the matter is not 14 warranted." (Order 2, 3) 15 Joint Intervenors and Governor Brown filed 16 petitions for review of the Board's Prehearing Conference 17 Order and the Commission declined to grant the petitions for 18 review on March 5, 1982.
19 C. The Licensing Board Properly Used The Federal Emergency Planning Zone.
20 21 The State of California has defined its EPZ's in a 22 substantially different manner than that described in 10 CFR 23 50.47(c)(2) which states, inter alia:
24 " Generally, the plume exposure pathway EPZ for nuclear power plants 25 shall consist of an area about 10 miles (16 km) in radius and the ingestion 26 pathway EPZ shall consist of an area about 50 miles (80 km) in radius. . . .
____- ________e_____________________
,. o l
1 The federal plume exposure pathway emergency planning zone 2 (EPZ) and the federal ingestion pathway EPZ for Diablo 3 Canyon are in accord with 10 CFR 50.47(c)(2) . (See County 4 Plan, Applicant's Exhibit 80, p. I.5(1) and Figure I .5-1. )
5 The State Basic EPZ, however, extends to 18 miles in the 6 North sector and beyond 20 miles in the East Southeast 7 sector. In between those two compass points, the zone 8 varies between 12 and 16 miles. (Id. Fioure I.5-7.) Even 9 more graphically, the County Plan (PGandE Exhibit 80, Figure 10 I.5-2 and Table I.5-2) shows the residential population 11 within the federal 10-mile zone to be 17,651 but within the 12 State Basic EPZ it is 100,588. All of the incorporated 13 cities within the State zone lie outside the federal zone.
14 (County Plan, Applicant's Exhibit 80, Figure I.5-1.) There 15 is a profound difference between the two zones in terms of 16 size, population, and political jurisdiction. The Licensing 17 Board was, therefore, correct in its assertion that the 18 State zone " differs substantially" from the federal zone.
19 Appendix E to Part 50 identifies the requirements 20 set forth as minimum requirements which must be met in 21 attaining an acceptable state of emergency preparedness.
22 The Licensing Board stated that it would apply the " minimum 4 23 requirement" standard in its review of emergency planning at 24 Diablo Canyon and that the emergency planning must comply 25 with 10 CFR 50.47 and Appendix E as a minimum. The Board 26 concluded that any requirements of the state which go beyond e i
. o 1 these regulations are not prohibited; however, they are 2 sufficiently different from the federal requirements to be 3 beyond the jurisdictional authority of the Licensing Board.
4 (Initial Dec. at 97.)
5 Joint Intervenors allege that the Board's 6 conclusion contravenes established principles of 7 federal-state comity grounded not only in judicial decisions 8 but in the Atomic Energy Act itself. They rely on the 1 9 Atomic Energy Act, 42 U.S.C. 5 2021 which is entitled 10 uCooperation with States" to support their position. PGandE 11 submits that 42 U.S.C. 5 2021 fully supports the Board's 12 determination in this regard. 42 U.S.C. 5 2021(a)(1)(2) and 13 (3) sets forth the purposes of 5 2021. 4_/ The Initial 14 Decision is in accord with, and accomplishes, each of these 15 stated purposes. 10 CFR 47(c)(2) and Appendix E to Part 50 16 clearly define the minimum requirements that the Commission 17 must enforce within the confines of its plume exposure 18 i pathway EPZ and the federal ingestion pathway EPZ. The j 19 Commission has and will cooperate fully with the State in 20 requiring full compliance with the regulations within the 21 plume exposure pathway EPZ and the federal ingestion i
22 23 y Inter alia, the purposes are:
24 (1) To clarify the respective responsibilities under this Act; (2) Establish programs for cooperation be-25 tween the States and the Commission; (3) Promote an orderly regulatory pattern between the States and the 26 Commission.
l
---___-____x
. o 1 pathway. This clarifies respective responsibilities and 2 creates an orderly regulatory pattern between the States and 3 the Commission in that the State is free to enforce its 4 regulatory power outside of those two areas.
5 The intent of the Atomic Energy Act, 42 U.S.C.
6 5 2021 and its amendment 5f make it patently clear as to 7 what the State's requirements are. 42 U.S.C. 5 2021(d) 8 previously read as follows:
l 9 "(d) Conditions. The Commission shall enter into an agreement under subsection 10 (b) of this section with any State if --
l 11 (1) The Governor of the State certifies that the State has a 12 program for the control of radia-tion hazards adequate to protect 13 the public health and safety with respect to the materials within the 14 State covered by the proposed agreement, and that the State de-15 sires to assume regulatory respon-sibility for such materials; and 16 (2) The Commission finds that the 17 State program is compatible with the Commission's program for the 18 regulation of such materials, and that the State program is adequate 19 to protect the public health and safety with respect to the materi-20 als covered by the proposed agree-ment."
21 ///
22 ///
23 ///
24 25 5_/ As amended November 8, 1978, P.L.95-604, Title II S 204(a)-(f), 92 Stat. 3036; June 30, 1980, P.L. 96295, 26 Title 5 205, 94 Stat. 787.
. o 1 Subsequent to the amendment, t 2021(d)(2) read as follows:
2 "(2) the Commission finds that the State program is in accordance with the re-3 quirements of subsection o. and in all other respects compatible with the Com-4 mission's program for the regulation of such materials, and that the State pro-5 gram is adequate to protect the public health and safety with respect to the 6 materials covered by the proposed agree-l l ment."
! 7 8 Prior to the amendment, there was no subsection (o) referred l 9 to. 42 U.S.C. 5 2021, subsection (o) reads as follows:
10 "(o) State requirements. In the li-censing and regulation of byproduct 11 material, as defined in section 11 e. (2) of this Act [42 USC 12 6 2014(e)(2)], or of any activity which results in the production of byproduct 13 material as so defined under an agree-
['
ment entered into pursuant to subsec-14 tion b., a State shall require--
15 (1) compliance with the require-ments of subsection b, of section 16 83 [42 USC 5 2113(b)] (respecting ownership of byproduct material and 17 land), and 18 (2) compliance with standards which shall be adopted by the State 19 for the protection of the public health, safety, and the environment 20 from hazards associated with such material which are equivalent, to 21 the extent prac.ticable , or more stringent than, standards adopted 22 and enforced by the Commission for the same purpose, including re-23 quirements and standards promul-gated by the Commission and the 24 Administrator of the Environmental Protection Agency pursuant to sec-25 tions 83, 84, and 275, [42 USC 55 2022, 2113, and 2114] and . . . "
1 Thus the State shall require compliance with' 2 standards adopted by the State "which are equivalent, to the 3 extent practicable, or more stringent than, standards
/ 4 adopted and enforced by the Commission . . . .
(42 U.S.C.
5 5 2021(o).)
l 6 Joint Intervenors cite Younger v. Harris, 401 U.S.
7 37, (1971) on the federal-state comity concept. The 8 decision of the Licensing Board is in complete accord with 9 Younger. There is a " sensitivity to the legitimate 10 interests of both State and national governments" and the 11 Board in protecting federal rights has done so in " ways that 12 will not unduly interfere with the legitimate activities of 13 the States." (401 U.S. 37, 44 (1971).)
14 D. No Deficiencies Exist Which Would Preclude Licensing.
15 16 (1) State Preparedness 17 The NRC bases its finding with respect to offsite 18 emergency preparedness on a review of the FEMA findings and 19 determinations as to whether state and local emergency plans i
20 are adequate and capable of being implemented. As set forth !
21 in 10 CFR 50.47(a)(2), "in any NRC licensing proceeding, a 22 FEMA finding will constitute a rebuttable presumption on a 23 question of adequacy. . . .
Pursuant to the Memorandum of 24 Understanding between NRC and FEMA entered into on 25 November 4, 1980, (45 Fed. Reg. 82713) FEMA may provide 26 interim findings and determinations to the NRC for use in
. . . . . . . . . . . . . . O
. o 1 the NRC licensing process notwithstanding the status of FEMA 2 review and administrative approval of state and local plans 3 under FEMA's own porposed rules set forth in 44 CFR, Part 4 350.
5 In its Memorandum and Order of December 23, 1981, 6 the Licensing Board accepted the Memorandum from Richard W.
7 Krimm to Brian Grimes of November 17, 1981 as the FEMA 8 finding contemplated by 10 CFR 550.47(a)(2) and ordered that 9 the finding "may be used by NRC as a rebuttable pre-10 sumption." (Slip. Opinion at 3, 9.) This memorandum was 11 introduced into evidence together with the accompanying FEMA 12 Region IX Evaluation and Status Report on State and Local 13 Preparedness around Diablo Canyon Nuclear Power P1,mt.
14 (App. Panel #1, Exhibit ( Attachment) 3 ff. Tr.11782. ) The 15 testimony of staff witness Grimes that this finding is 16 adequate "for the Board to make a reasonable assurance find-17 ing on the issues in this case" constitutes NRC staff 18 acceptance of these FEMA findings. (Grimes, Tr. 12677.)
19 The impact of the rebuttable presumption is discussed in 20 Metropolitan Edison Co. 6_/ In that case the Licensing Board 21 decided that in the absence of any pertinent discussion in 22 the Commission Statement of Considerations supporting the 23 current emergency planning rules, it would apply Rule 301 of 24 25 6/ Three Mile Island Nuclear Station Unit 1, Docket No.
50-289-SP, Restart, Partial Initial Decision 15 1353, 26 1361.
m
. o 1 the Federal Rules of Evidence, 28 U.S.C. App. (1976) which 2 states that a presumption only ". . . imposes on the party 3 against whom it is directed the burden of going forward with 4 evidence to rebut or meet the presumption." The Board 5 concluded that in those instances where FEMA's findings are 6 uncontradicted, the Board would accept the FEMA testimony on 7 such points. (Id. at 1359.) Thus, the FEMA findings are 8 sufficient to support the ultimate findings where they are 9 not controverted. Joint Intervenors' allegation that a l
l 10 formal review of the State Plan is required is contrary to 11 the regulations, inconsistent with the November 1980 12 Memorandum of Understanding between NRC and FEMA, and would 13 lead to the unintended result that no single nuclear plant 1
14 could be licensed until the State plan, which necessarily 15 deals with all nuclear facilities within the state of I I
1 l 16 California, was reviewed and judged adequate by FEMA. I 17 Regardless, the evidence provides adequate support for a 18 finding that the status of State planning has in fact been 1
19 considered by FEMA to the extent necessary. In California 20 the basic responsibility for protection of life and property l 21 rests at the county level. (Eldridge, Tr. 12709.) In l
22 regard to re-entry and recovery and ingestion pathway 23 sampling and interdiction, where the State has primary 24 responsibility, Mr. Eldridge did review State preparedness 25 and concluded that the State could respond with assistance 26 from the Department of Energy and the Environmental O _ _ _ _ _ . _ _ _ _ _ _ _ _ . _ _ . . . _ . _
,. o 1 Protection Agency in any area where State planning was not 2 complete. -(Eldridge, Tr. 12710.) While the criteria may 3 indicate applicability to both State and local levels, it is 4 appropriate to rely on county actions where, as here, the 5 county is primarily responsible. This comports with the 6 guidance provided by NUREG-0654, Rev. 1, page 24. The FEMA 7 findings presented to the Board are complete and fully 8 support a finding by the Board that the State emergency plan 9 is adequate and capable of being implemented.
10 The concept' of generic EPZs for nuclear power 11 plant emergency preparedness was introduced in a joint 12 NRC/ EPA report. 7/ From this report came the adoption of 13 the size of the EPZs. These distances [10- and 50-mile I
14 EPZs] are considered large enough to provide a response base 15 that would' support activity outside the planning zone should 16 this ever be needed. The Licensing Board in Metropolitan 17 Edison Company (supra, note 6) stated: "We have no' l 18 jurisdiction to challenge as a matter of policy whether the 19 approximately 10- and 50-mile EPZs are too small or too 20 large." Joint Intervenors and Governor Brown did not 21 present any evidence to justify extension of the 10-mile 22 zone based upon the criteria of 10 CFR $ 50.47(c)(2) nor 23 have they attempted to state a basis for not applying the 24 25 7/ " Planning Basis for Development of State and Local Governments Radiological Emergency Response Plans in 26 Support of Light Water Nuclear Power Plants,"
NUREG-0396-EPA 520/1-78-016, December 1978.
.. n . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
. o 1 Commission's rule in this case by demonstrating special 2 circumstances in accordance with 10 CFR 5 2.758.
3 Section 274a of the Atomic Energy Act (42 U.S.C.
4 5 2021) specifically prohibits the NRC from relinquishing l
5 any authority regarding nuclear power plant licensing to a 6 state. The Commission regulations govern the size of the
, 7 EPZs and the status of planning beyond those zones specified 8 by regulation is not prcperly before the Board. (10 CFR 9 6 2.758; Southern California Edison Company, et al. San 10 Onofre Nuclear Generating Station, Units 2 and 3, LBP-82-39, 11 15 NRC 1163 (1982).)
12 (2) County Standard Operating Proce-dures And Letters Of Agreement.
13 14 Mr. Tim Ness, Emergency Services Coordinator for 15 San Luis Obispo County, testified that 21 of 31 Standard 16 Operating Procedures (SOPS) designated by the County had 17 been developed. (Ness, Tr. 12453.) Moreover, Mr. Ness 18 testified that all the SOPS the County's emergency planning 19 staff considers important were currently in place. (Ness, 20 Tr. 12453.)
21 There is adequate evidence in Sections 1.7 and 1.8 1
22 of the County Plan (App. Ex. 80) and in the SOPS (App. Ex. I 23 81, 81A), as well as in the FEMA Region IX evaluation ad 24 Status Report on State and Local Emergency Preparedness 25 Around the Diablo Nuclear Power Plant and the oral 26 testimony, to support the Board's finding that assignment of t
___n____
. o 1 primary responsibilities among those local governmental 2 organizations upon which the County will rely for emergency 3 response in the plume exposure pathway EPZ has been 4 accomplished.
l 5 Regarding the letters of agreement, the Joint l 6 Intervenors ignore the tes';imony that planning documents 7 are, themselves, the " agreement instruments" in many 8 instances. (Potter, Tr. 11804.) Furthermore, they 9 misconstrue the testimony relating to approval of the San 10 Luis Obispo County Plan on procedures by local jurisdictions 11 since no such sign-off or approval is needed (Ness, Tr.
l 12 12459-63) and the county has sufficient powers to implement I 13 emergency response without local jurisdiction's cooperation.
14 (Ness, Tr. 12563-4.)
15 (3) Public Education 16 Education of the San Luis Obispo County public on 17 notification methods of initial actions in the event of a 18 radiological emergency has been initiated through 19 periodicals, print and radio media and in public forums.
20 (App. Panel #2 Test., ff. Tr. 12118 at 2-4 through 2-7.)
21 Provisions have been made fer a public education 22 dissemination of information to the public within the plume 23 exposure pathway EPZ as to how the public will be notified 24 and what its initial actions should be. (Sears test. ff.
25 Tr. 12638 at 22; Applicant's Ex. 73, Sections 4, 5, 6, 8 and 26 Appendix A.) This program includes a page of instructions
j
. o k
1 in the local phone ' book, a pamphlet for distribution 2 throughout the plume exposure pathway EPZ, an institutional 3 placard for placing in motel rooms c.nd public gathering 4 places and a periodic newsletter with emergency response 5 information. (Sears test. .ff. Tr. 12638 at 22.) News-6 letters containing information about the plan, general 7 nuclear issues, emergency planning, and radiation have been 8 sent to residents in the State BEPf.. (App. Panel #2 test.
9 ff. Tr. 12118 at 2-4 through 2-6.)- Designated points of 10 contact and physical locations for use by news media during 11 .an emergency have been established. (Sears test. ff. Tr.
12 12638 at 22.) Methods and general arrangements for the 13 coordination of dissemination of information to the public 14 including news media have been established. (App. Panel #2 15 test. ff. Tr. 12118 at 2-7, 2-8; App. Ex. 73, Section 5; 16 Sears test. ff. Tr. 12638 at 22-23.)
17 Che Applicant's public education and information 18 program conforms to the criteria of NUREG-0654 and meets the 19 standards of 10 CFR f 50.47(b)(7) and Section IV.D. of 20 Appendix E, 10 CFR Part 50.
21 (4) Public Response And Plan Implemen-tation 22 23 The Board properly disregarded intervenor 24 testimony that a survey of the local population should be 25 done before finalizing the County Plan. Instead, the Board 26 accepted the testimony of Applicant's expert witness, Dr.
~ _ --
o .
)
1 Mileti. Dr. Mileti testified that the variables or factors 2 that shape or cause human behavior in one sort of disaster 3 or emergency situation apply in others and that " perceived 4 risk" itself is similar in a flood or nuclear power plant 5 emergency. (Mileti test. ff. Tr. 12184 at 2.) It was Dr.
l 6 Mileti's conclusion that the County and Applicant's plans 7 for educating and instructing have as good a chance of 8 working as any he had seen, and that he was quite impressed 9 to see that what has been learned in academic study and 10 warning systems has been applied in their plans. (Mileti, 11 Tr. 12169, 12154.)
12 The public information system planned will provide 13 reasonable assurance that the public will be able to respond 14 effectively in the event of a nuclear accident in compliance 15 with 10 CFR $ 50.47(b)(7).
16 (5) Emergency Communications 17 Joint Intervenors argue that the communication 18 network of San Luis Obispo County is inadequate. They rely J
19 heavily upon the County "Five Year Communications Plan."
20 (Brown, Ex. 10.) This plan was prepared under the direction 21 of Mr. Richter, Director of the County Department of 22 Technical Services, who testified that the conclusions and 23 recommendations therein were true and correct. (Richter, 24 Tr. 12682.) This is all to which he testified. He was not 25 qualified as an expert. Joint Intervenors make no l 26 distinction in their attack on the system's adequacy between
. v 1 items experts consider essential to emergency response 2 related to Diablo Canyon, and those which would provide 3 long-range improvement of County communications generally.
4 Such a distinction is obviously critical. In fact, the 5 Board's ruling requires that the 12 significant items of 6 FEMA be corrected prior to full power operation. (Initial 7 Dec. at 217-218.) These items include: design and 8 maintenance of the Early Warning System (which relies on the 9 microwave system); direct telephone link plus radio backup 10 to two EBS stations; radios for the County field monitoring 11 teams; additional telephone capability for the EOC; and a 12 " system that will allow the cities in the plume exposure 13 zone to be kept informed of the developing situation at the I
14 EOC" (a ring-down telephone was described in PGandE's 15 prefiled testimony, Panel No. 3). The Board is therefore 16 requiring a communications upgrade as a condition of a 17 full-power license.
18 While the Joint Intervenors attempt to use the 19 County Department of Technical Services Five-Year 20 Communications Plan as evidence that county communication is 21 inadequate, the fact is that this document is a plan of 22 action to improve the system over the next five years.
23 Between the improvement that is contemplated in the 24 Five-Year Plan plus the communications equipment which 25 PgandE has committed to purchase (PGandE prefiled testimony, 26 Panel No. 3), there is every reason to believe that the O
. ~
t 1 communications system will continue to improve, and that it 2 is presently adequate for use in emergency response for 3 Diablo Canyon.
4 E. The ASLB Properly Refused To Reopen The Environmental Record For Consideration 5 Of A Class 9 Accident.
6 Joint Intervenors argue here as they did in the 7 low power proceeding that the environmental consequences of 8 a Class 9 accident must be evaluabed in the Diablo Canyon 9 environmental impact statement ("EIS"). (J.I. Br. at 10 47-53.) They assert that this action is required by the 1
11 NRC's own Statement of Interim Policy on Class 9 Accidents 12 and the applicable regulations of the Council on 13 Environmental Quality (CEQ) implementing the National 14 Environmental Policy Act of 1969. These arguments are 15 easily answered in that the NRC policy statement by its own 16 terms does not mandate preparation of a supplemental 17 environmental impact stetetent to consider Class 9 accident 18 consequences. These A gt ations require a supplemental EIS 19 when it can be sht ri Q.< t.here exists ". . . significant I
20 new circumstances or information relevant to environmental
(
21 concerns, bearing on the proposad action or its 22 fff 23 ///
24 ///
25 f
26 e
a
. o 1 impacts." 8f 2 By way of background, on May 16, 1980 the NRC 3 adopted a statement of interim policy concerning the 4 consideration hypothetical nuclear accidents are to be given 5 in environmental statements prepared in conjunction with NRC 6 licensing proceedings. 9/ This policy statement was adopted 7 in furtherance of the NRC's ongoing efforts to develop a l
i 8 coordinated regulatory policy for accident considerations, 9 not only with respect to NEPA, but more broadly in carrying 10 out its primary statutory obligation to protect the public 11 health and safety. i 12 ///
i 13 14 8f The CEQ regulations dealing with environmental impact statements are found at 40 CFR 1502 et seq. 40 CFR 15 1502.9(c)(1) provides: ,
16 Agencies:
)
17
\
(1) Shall prepare supplements to either l draft or final environmental impact 18 statements if:
19 (i) The agency makes substantial changes in the proposed action 20 that are relevant to environ-mental concerns; or 21 (ii) There are significant new 22 circumstances or information relevant to environmental 23 concerns and bearing on the proposed action or its im-24 pacts.
25 9/ Nuclear Power Plant Accideni Considerations Under the Netional Environmental PolM Act g 1969, 45 red. Reg.
26 40101 (June 13, 1980) ["NEPA Policy Statement"].
0
. v 1 In its NEPA Policy Statement, the NRC withdrew the 2 Proposed Annex to Appendix D of 10 CFR Part 50, 36 Fed. Reg.
3 22851, which had been in effect since December 1, 1971, and 4 directed that all future environmental statements include 5 " considerations of the site-specific environmental impacts 6 attributable to accident sequences that lead to releases of 7 radiation and/or radioactive materials, including sequences 8 that can result in inadequate cooling of reactor fuel and to 9 melting of the reactor core." (NEPA Policy Statement, 45 l 10 Fed. Reg. at 40103.)
11 However, the NRC specifically limited this policy 12 directive to those licensing proceedings in which a final 13 EIS had noc. been issued prior to July 1, 1980. 1_Of The NEPA 14 Policy Statement therefore does not require a revision of 15 final EIS's (such as the Diablo Canyon EIS) which, in 16 accordance with previous NRC policy as expressed in the 17 Proposed Annex, did not assess the environmental 18 consequences of radiological releases from so-called Class 9 19 accidents. Accordingly, the new NEPA Policy Statement is 20 inapplicable to Diablo Canyon and does not require reopening 21 ///
22 23 10f The Final EIS for Diablo Canyon was issued in May 1973 and an addendum issued in May 1976. After the hearing 24 the Licensing Board issued its Partial Initial Decision on environmental matters in 1978. In the Matter of 25 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Powei Plant, Unit.s i and 2), LBP-73-19, 7 NRC 969 26 (1978).
f
_ n - _ _ - _ - _ _ _ _ _ _ _ . _ - _ _ _ _ _
. . o 1 of the Diablo Canyon environmental record in the absence of 2 special circumstances.
3 Since the Commission's new NEPA policy is by its 4 terms inapplicable to Diablo Canyon, Diablo Canyon's EIS is 5 controlled by the policy which existed at the time it was 6 prepared. That policy, as expresseu in the Proposed Annex, l
l 7 did not require an analysis of the environmental conse-i 8 quences of Class 9 accidents because such accidents were 1
9 (and still are) considered extremely unlikely to occur. The 10 NRC's past policy under the Proposed Annex has been 11 expressly approved by the federal courts. (Hodder v.
12 Nuclear Regulatory Commission, 9 ELR 20058 (D.C.Cir. 1978);
13 Carolina Environmental Study Group v. United States, 510 14 F.2d. 796, 798-99 (D.C.Cir. 1975).)
15 In response to Joint Intervenors' motion, the 16 Licensing Board considered whether special circumstances 17 existed to warrant reopening the Diablo Canyon environmental 18 record. 11/ In its consideration of this issue, the ASLB 19 noted that the NRC Staff has grouped special circumstances 20 within three categories: (1) high population density around 21 the site, (2) novel reactor design, or (3) a combination of 22 ///
23 11/ Pacific Gas and Electric Company (Diablo Canyon Nuclear 24 Power Plant, Units 1 and 2), Memorandum and Order Deny-ing Joint Intervenors' Motion to Reopen Environmental 25 Record For Consideration of Class 9 Accidents, (ALSB June 19, 1981) (" June 19, 1981 Order"). LBP-81-17, 14 26 NRC 1122.
O
1 a unique design and a unique siting mode. See Pacific Gas 2 and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 3 & 2), DD-81-3, 13 NRC 349, 353-54 (1981); NEPA Policy 4 Statement, 45 Fed. Reg. at 40102. In addition to reviewing 5 these three factors, the ASLB also examined whether a )
l 6 man-made or natural hazard might exist which could require l 7 additional environmental consideration. (14 NRC 1122 at 8 1123.) Relying upon this Appeal Board's recent conclusion 9 that Diablo Canyon is seismically safe 1_2/, review of which 10 was declined by the Commission, and finding none of the 11 listed factors existing at Diablo Canyon, the ASLB properly 12 concluded that no special circumstances exist which would 13 justify reopening the Diablo Canyon environmental record.
[
14 Id. 1124.
15 The argument that NRC has purportedly failed to 16 follow CEQ guidelines and prepare a supplemental EIS is v.
17 equally unavailing. The Staff and the ASLB complied with 18 the CEQ criteria by reviewing the matter to determine 19 whether significant new circumstances or information existed 20 to warrant preparing a supplemental EIS and concluded that 21 they did not exist h this case. Obviously the question of 22 ///
23 24
--12/ Pacific Gas and Electric Company (Diablo Canyon Nuclear 25 Power Plant, Units 1 and 2), ALAB-644, 14 NRC 903 June 16, 1982). Petition for Review was denied by the 26 Commission on March 18, 1982. (15 NRC 404.)
________Q__.__.____ _ . _ _ _
. o 1 the seismic situation at Diablo Canyon is not new informa-2 tion. It has been the subject of intensive scrutiny by the 3 NRC since 1973. Indeed, it is the Joint Intervenors who are 4 attempting to " bootstrap" themselves into a position to 5 further delay this matter by baldly arguing that anything 6 " seismic" in nature is somehow "significant new 7 circumstances or information" based upon the accident at 8 TMI.
9 For these reasons an analysis of the environmental 10 consequences of a Class 9 accident at Diablo Canyon is not 11 warranted, and Joint Intervenors' appeal on this issue must 12 be rejected.
13 F. Joint Intervenors' Exception to the ASLB Decision On Power Operated Relief Valves 14 Does Not Raise Issues Within Their Contentions Or The Record Of This 15 Proceeding.
16 Joint Intervenors take exception to the ASLB 17 decision concerning power operated relief valves. In 18 support of their exception Joint Intervenors cite a letter 19 from PGandE concerning the adequacy of certain seismic 20 design spectra used to qualify the power operated relief 21 valves and their associated block valves. However, this 22 letter involves a matter within the Independent Design 23 Verification Program (IDVP) W which the Board expressly 24 ///
25 ly The letter states in part "As a result of t.ne seismic 26 reverification program . . . "
. o 1 excluded from its decision (Decision at 219). Thus, this 2 letter is not properly a part of the full power proceeding 3 but rather is a part of the IDVP. 1_4j Moreover, the valve 4 contentions at the hearing involved the classification or 5 qualificatio'n of the various valves as safety grade, and 6 there is ample evidence in the record to support the Board's 7 finding that such qualification is not necessary, with the 8 single exception noted by the Board (Decision at 81, 86; 9 Findings 351-374). In any event, Joint Intervenors' brief 10 does not raise any issues concerning the qualification of 11 the values.
12 ///
13 ///
14 ///
15 16 17 18 19 20 21 22 23 24 25 M/ In any event PGandE is committed to taking whatever steps are necessary to maintain the seismic cualifica-tion of the valves (Decision at 85; Finding 369; Letter 26 dated February 24, 1982).
. m 1 G. The Licensing Board Did Not Err In Deny-ing Joint Intervenors' Proposed Conten-2 tions In Its August 4, 1981, Order.
3 Joint Intervenors seek to reargue a matter that 4 has already been ruled upon by this Board. Specifically, 5 they seek recensideration of this Board's Order of 6 December 11, 1981 which affirmed the Licensing Board's 7 August 4, 1981 Order denying all but one of Joint 8 Intervenors' contentions proffered in their March 24, 1981, 9 Motion to Reopen. 1_5/
10 Joint Intervenors make no attempt to place any new j i
11 arguments before the Board but instead rely on arguments 12 previously set forth in their Request for Certification of l
[
13 October 8, 1981 and Supplemental Brief of November 6, 1981. )
14 Suffice it to say this Board's Order of December 11, 1981, 15 stands. While Joint Intervenors have duly noted for the 16 /// l 17 ///
18 /// l 19 20 21 22 23 24 25 W No formal opinion has been issued to date by this Board which explains in det. ail its reasons for affirming the 26 Licensing Board's August 4, 1981 Order.
e
- c 1 record their dissatisfaction with that ruling there is no 2 basis for disturbing the December 11, 1981 ruling.
3 4 Respectfully submitted, 5 ROBERT OHLBACH PHILIP A. CRANE, JR.
6 RICHARD F. LOCKE Pacific Gas and Electric Company 7 P.O. Box 7442 San Francisco, California 94120 8 (415) 781-4211 9 ARTHUR C. GEHR Snell & Wilmer l 10 3100 Valley Center l Phoenix, Arizona 85073 l 11 (602) 257-7288 12 BRUCE NORTON i
Norton, Burke, Berry & French, P.C.
l 13 3216 N. Third Street f Suite 300 14 Phoenix, Arizona 85012 (602) 264-0033 15 Attorneys for 16 Pacific Gas and Electric Company 17 ~~
18 By 1 n10 h
Bruce Norton 19 20 DATED: December 20, 1982.
21 22 23 24 25 26 m
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
CJ b PACIFIC GAS AND ELECTRIC COMPANY ) 0-275
) DocketNo.,g40-323 Dock M-Diablo Canyon Nuclear Power Plant,) '$ G '93 Units 1 and 2 ) ,
) '
- 4l m CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:
Judge John F. Wolf
! Chairman Mrs. Sandra A. Silver Atomic Safety and Licensing Board 1760 Alisal Street San Luis Obispo CA S3401 US Nuclear Regulatory Commission Washington DC 20555 Mr. Gordon Silver
, e Judge Glenn O. Bright 1760 Alisal Street San Luis Obispo CA 93401 Atomic Safety and Licensing P7ard US Nuclear Regulatory Commission John Phillips, Esq.
Washington DC 20555 Joel Reynolds, Esq.
Judge Jerry R. Kline Center for Law in the Public Interept
[ Atomic Safety and Licensing Board 10951 W. Pico Blvd. - Suite 300 Los Angeles CA 90064 US Nuclear Regulatory Commission
( Washington DC 20555 David F. Fleischaker, Esq.
Mrs. Elizabeth Apfelberg P. O. Box 1178 c/o Betsy Umhoffer Oklahoma City OK 73101 1493 Southwood San Luis Obispo CA 93401 Arthur C. Gehr, Esq.
Snell & Wilmer Janice E. Kerr, Esq. 3100 Valley Bank Center Phoenix AZ 85073 Public Utilities Commission State of California Bruce Norton, Esq.
5246 State Building Norton, Burke, Berry & French, P.C.
350 McAllister Street 3216 N. Third Street San Francisco CA 94102 Suite 300 Phoenix AZ 85012-2699 Mrs. Raye Fleming 1920 Mattie Road Chairman Shell Beach CA 93449 Atomic Safety and Licensing Board Panel Mr. Frederick Eissler US Nuclear Regulatory Commission Scenic Shoreline Preservation Washington DC 20555 Conference, Inc.
4623 More Meca Drive Santa Barbara CA 93105 0
o Chnirman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing
~US Nuclear Regulatory Commission Appeal Board Waahington DC 20555 US Nuclear Reg 21atory Commission Washington DC 20555 Secretary US Nuclear Regulatory Commission Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 Donald F. Hassell, Esq. Judge John H. Buck l Stuart A. Treby, Esq. Atomic Safety and Licensing Office of Executive Legal Director Appeal Board MAIL 9604 US Nuclear Regulatory Commission US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose CA 95125 Mr. Carl Neiberger Talegram Tribune
! P. O. Box 112 San Luis Obispo CA 93402 Herbert H. Brown, Esq.
Lawrence Coe Lanpher, Esq.
Christopher B. Hanback, Esq.
Kirkpatrick Lockhart, Hill, Christopher & Phillips 1900 E Street NW Washington DC 20036 I Byron S. Georgiou, Esq.
Legal Affairs Secretary Governor's Office State Capitol Sacramento CA 95804
> _ . , t. -
f
[
Pacific as and Electric Company Date: December 20, 1982 i
__--_-i--------------------------- -- -