ML20093K002
| ML20093K002 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/27/1984 |
| From: | Locke R PACIFIC GAS & ELECTRIC CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20093K004 | List: |
| References | |
| ALAB-776, OL, NUDOCS 8407300417 | |
| Download: ML20093K002 (8) | |
Text
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.e UNITED STATES OF AMERICA C ']y' i
NUCLEAR REGULATORY COMMISSION 4 & 30 A9:54 BEFORE THE COMMISSION l
)
In the Matter of
)
)
i PACIFIC GAS AND ELECTRIC
)
Docket Nos. 50-275 0.L.
COMPANY
~
)
50-323 0.L. -
)
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO PETITION FOR REVIEW OF ALAB-776 FILED BY JOINT INTERVENORS 5
INTRODUCTION On July 17, 1984, the Joint 'Intervenors filed, pursuant to 10 CFR 2.786, a petition for review of ALAB-776, NRC (June 29, 1984).
In that decision the Atomic Safety and Licensing Appeal Board (" Appeal Board")
j vacated that position of the decision of the Atomic Safety and Licensing Board
(" Licensing Board") which conditioned the full power license of Diablo Canyon Nuclear Power Plant, Unit 1, on the submission by the Federal Emergency Management Agency (" FEMA") to the NRC Director of Nuclear Reactor Regulation (NRR) of findings on the adequacy of the California Emergency Response Plan (" State Plan").
8407300427 840727 PDR ADOCK 05000275 Dso o
eon
or
..c For the reasons set forth below, Pacific Gas and Electric Company
("PGandE")
respectfully submits the petition for review should be denied.
II BACKGROUND In January 1982 the Licensing Board held hearings on PGandE's applicatidn for a full power operating license -
for Diablo Canyon Nuclear Power Plant Units 1 and 2.
One of the issues considered in those proceedings was the adequacy of emergency planning for Diablo Canyon.
On August 31, 1982, the Licensing Board issued its decision authorizing the Director of NRR to issue a full power license subject not only to certain conditions imposed by the Licensing Board but also.to the Cosatission's determination and l
orde'r. y All parti'es to the proceeding filed exceptions to various rulings of the Licensing Board in accordance with 10 i
CFR I 2.762(a).
On June 29, 1984, the Appeal Board issued a ruling on an exception taken by the NRC Staff and PGandE to the I
Licensing Board's condition that the Director of NRR secure FEMA findings on the adequacy of the State Plan prior to issuance of a full power license. F In that Decision the 4
- 2f Certain other exceptions taken by PGandE and the NRC Staff were withdrawn after the Licensing Board issued i
l memoraridum decisions on September 24 and October 26, i
1982 clarifying portions of its Initial Decision.
Appeal Board held that ".
the Commission's regulations do not,re, quire the Staff to obtain from FEMA final findings of the adequacy of state offsite response plans before [a]
full power operating license can be issued." 3_/
III DISCUSSION W5111e recognizing that the Commission has the ultimate discretion to review any decision of its boards, a petition for Commission review is ordinarily not granted unless important safety, procedural, common defense, antitrust, or public policy issues are involved.
10 CFR I 2.785(b)(4).
PGandE has reviewed the issue which has been raised and believes that when compared against the standards set forth in 10 CFR 2.786 it does not command the exercise of One Commission's discretion to grant the petition, i.e.,
important questions of fact, law, or policy are not I
presented.
The Joint Intervenors contend that the Appeal Board has disregarded the explicit language of the I
Commission's emergency planning regulations by concluding 1
)
that formal FEMA findings on the adequcy of the offsite l
emergency plans are not required before full power licensing. 4/
They contend that the language of 10 CFR 3/
ALAB-776, slip opinion at 7.
l 4/
Petition for Review, p. 1.
, l a
50.47(a) "is unmistakeable in its terns" as requiring final FEMA findings. Sj A careful scrutiny of the language clearly shows that there is no requirement for a formal (final] FEMA finding prior to full power licensing.
Moreover, Joint i
Intervenors completely ignore the provisions of the
" Memorandum' of Understanding Between NRC and FEMA Relating toRadiologicalEmergencyPlanningandPreparedness"("MOU"[)
executed on November 6, 1980 (45 Fed. Reg. 82713-14 5/
10 C.F.R. 50.47(a)(1) provides that:
No operating license for a nuclear power rsactor will be issued unless a finding is made by NRC that the state of onsite and offsite emergency preparedness pro-vides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological j
emergency.
Section (a)(2) of 10 C.F.R. 50.47 goes on to state that:
II The NRC will base its findings on a re-view of Federal Emergency Management Agency (FEMA) findings and determina-tions as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be impleeneted, and on the NRC assessment as to whether the applicant's onsite emergency plans are adequate and
.whether there is reasonable assurance that they can be implemented.
A FEMA finding will primarily be based on a review of the plans. Any other informa-tion already available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented.
I I
i u
1 i
l (December 16, 1980)). 6f The clear import of this MOU, when it read in. conjunction with the language of 10 CFR 5 50.47, is that formal, final FEMA findings are not necessary for the NRC licensing process.
Rather, the NRC regulatory scheme contemplates the use of interim FEMA findings in NRC licensing proceedings " based upon plans currently available to FEMA or furnshed"to FEMA by the NRC".
(45 Fed. Reg.
i 82714).
This p'rovision has been incorporated into the final FEMA regulations dealing with the review and approval of state and local radiological emergency plans.
44 CFR 5 350.3(f).
As the Appeal Board noted in its decision, three I
recent decisions have considered this very issue and I
concluded that. formal (finai) FEMA findings are not required i
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I
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6f This NOU provides in pertinent part that:
I
[n]otwithstanding the procedures which i
may be set forth in 44 CFR 350 for re-questing and reaching a FEMA'administra-tive approval of state and local plans, l
i findings and determinations on the cur-rent status of emergency preparedness
'around particular sites may be requested by the NRC through the NRC/ FEMA Steering Committee and provided by FEMA for use as needed in the NRC licensing process.
These findings and determinations may be based upon plans currently available to FEMA or furnished to FEMA by the NRC.
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j for NRC licensing decisions. 7/
These decisions all interpreted the regulations to mean that ".
licensing decisions on emergency preparedness [are) to be made on the basis of the best available current information and not deferred to await FEMA's last word on the matter."
Southern California Edison, supra, 17 NRC 346 at 380.
As the Appeal' Board further observed:
i
"[P]reliminary FEMA reviews and in:teria findings presented by FEMA witnesses at licensing hearings are cufficient as long as auch information permits the l
Licensing Board to conclude that offsite i
emergency preparednass provides ' reason-l able assurance that. adequate protection 3
measures can and will be taken in the
~
event of a
radiological emergency. '" -
),
(footnote omitted).
(Slip. Opinion at a
10-11).
j In -the instant case, FEMA's interim findings on
~
the' status and adequacy of state and local offsite emergency j
planning were presented to the f,icensing Board through the t
Furth'dnore, the Licensing testimony of John Eldridge. 8/
e Board found that offsite emergency planning provides reasonable assurance that adequate protective measures can and w'il'1 be'taken in the event of a radiological event and j
7/
Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC
- 346, 380 (1983);
Cincinnati Gas and Electric Co.
(Wla. H.
Zimmer Nuclear Power Station, Unit No. II, j
ALAB-727, 17 NRC 760, 775 (1983); Detroit Edison Co.
(Enrico Fermi Atomic Power Plant, Unit 2 ), ALAB-730, 17 NRC 1057, 1066 (1983).
l 8f Eldridge Testimony fol. TR. 12688..
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that emergency plans and preparedness for the facility complied with the commission's regulations. 9f The Appeal Board in reviewing this state of the record correctly concluded that the interim FEMA findings fully satisfied the requirements of the commission's regulations;
- hence, the Licensing Board's condition requiring further, final FEMA findings was erroneous.10f, 0
In reaching this conclusion, the Appeal Board noted, as did the Licensing Board, that in California the emergency i
response function is split between the state and county.
The County has the basic responsibility for protection of life and property in the plume exposure pathway, while the State has basic responsibility for only the ingestion pathway as well m's recovery and security.11/
Thus, the 1
sthte's basic emergency responsibilities do not require immediate action as contrasted with the county's primary
/
essergency response role. ly 9/
LBP-82-70, supra, 16 NRC at 761,,797-98; ALAB-776, slip op, at 12-13.
10f ALAB-776.
Slip op. at 13.
1_1/
Id at 14.
12/
The Appeal Board noted (footnote 35) that the state plan still has not undergone " final" FEMA review but is in a later revision as of April 1984.
This later State Plan revision has been reviewed recently by FEMA and an interim finding confirming the adequacy of the State Plan was sent from FEMA to NRC on.7uly 11, 1984..
4
<i CONCUSION For the reasons set forth above, the Petition of Joint Intervenors has failed to establish an important
~
question of fact, law, or policy and, accordingly, should be denied.
Respectfully submitted, ROBERT OHLBACH
^
PHILIP A. CRANE, JR.
RICHARD F. LOCKE DAN G. LUBBOCK Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94120 (415) 781-4211 ARTHUR C. GEHR Snell & Wilmer 3100 Valley Bank Center Phoenix, AZ 85073 (602) 257-7288 BRUCE NORTON THOMAS A. SCARDUZIO, JR.
Norton, Burke, Berry & French, P.C.
P. O. Box 10569 Phoenix, AZ 85064 (602) 955-2446 Attorneys for Pacific Gas and Electric Company By RICHARD F. LOCKE l
l DATED:
July 27, 1984.
i l
l l
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