ML20105D120
| ML20105D120 | |
| Person / Time | |
|---|---|
| Site: | 05000000, San Onofre |
| Issue date: | 08/04/1981 |
| From: | Grimes B NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| To: | |
| Shared Package | |
| ML20105C680 | List: |
| References | |
| FOIA-84-378 OL, NUDOCS 8502090598 | |
| Download: ML20105D120 (7) | |
Text
{{#Wiki_filter:-. . a: - - -. ~ -.. - -... .-a2.h I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ( BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SOUTHERN CALIFORNIA EDISON COMPANY, Docket Nos. 50-361 OL ET &. 50-362 OL (San Onofre Nuclear Generating Station Units 2 and 3) AFFIDAVIT OF BRIAN K. GRIMES My name is Brian K. Grimes. I am Director, Division of Emergency Preparedness, Office of Inspection and Enforcement, U. S. Nuclear Regulatory Comission, i-Washington, D. C. My professional qualifications were attached to my June 22 j 1981 affidavit in this proceeding. This affidavit is submitted to address the areas of emergency planning earthquake considerations as a supplement to my '{ ( June 22, 1981 affadivit. j As stated in my affidavit of June 22, 1981 with regard to emergency planning earthquake considerations, a funda_ mental premise in the approach to emerge:1cy planning utilized by the Federel Emergency Management Agency (FEMA) j and the NRC is that emergency plans must be developed to facilitate response 'l to a wide spectrum of accidents. This is accomplished by considering a wide ) spectrum of accidents in the development of a planning basis - a spectrum of accidents which includes rapid releases of large fractions of the reactor I core inventory in a short period of time.. (All of the WASH-1400 scenarios were considered in NUPEG-0396 in developing the planni g basis. The PWR-2 accident omf5 in the WASH-1400 study would result in releases of radioactive material comparable to those postulated to result from a catastrophic earthquake in the Board's 4 li ~ g 2 g 9s e4o737 BELL 84-378 POR ,pw. w m e q
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~ - ( July 29, 1981 Order.) Although such scenarios are of extremely low likelihood, a judgment was made b~y the staff and the Comission that the planning basis would adequately enhance existing ad hoc capabilities to deal with catastrophic events. The conclusion of the staff (as reflected in NUREG-0396 and NUREG-0654 and, I believe, by the Comission in its emergency preparedness regulations published on August 19, 1980) was that site specific analyses are not required for the extremely large releases already considered in the generic studies. The Board appears to assume that the lack of such site specific studies is a deficiency which on its face requires additional consideration in this proceeding. I conclude that the Comission's treatment of the accident spectrum question. 3 which included ample opportunity for public comment (both on NUREG-0396 and on the Comission's proposed emergency planning regulations) obviates the need
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( j for site specific consequence evaluations with regard to emergency preparedness. 1 I have several specific comments with respect to the Board Order of l July 29, 1981, which relate to the Board's characterization of the staff's position and the clarity of the Board's proposed issue. First, the staff assumed that roadways could be disrupted even in moderate d earthquakes and has required the licensee to have the capability to obtain-damage estimates to transportation facilities offsite to provide a data base to j factor into the decisionmaking process and to have available a range of n recomendations to offsite authorities. Analyses of specific catastrophic J earthquake effects are not especially useful to planning as the exact consequences cannot be predicted in advance. ll ( ,,.r ~ + -.. - _ -.,..,. -, - -.. - -
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a 3-( The Board states that the staff has transplanted the SSE concept to l emergency preparedness. What the staff in fact argued was that the SSE concept i is a meaningful one in any detailed discussion of earthquake considerations l in the emergency planning area and is consistent with the staff's application a 1 of the planning basis concept which was developed specifically for emergency y preparedness considerations to allow generic consideration of a wide spectrum of accidents. The rationale for the emergency., planning basis already includes worst case accidents, including those which might be initiated by seismic events. As stated in rqy June 22, 1981 affadavit "...the characteristics of an accident which could theoretically be created by an earthquake larger than j the SSE would not be outside the spectrum of accidents considered in NUREG-0396 upon which the judgment on slanning zone sizes and other planning elements were based." The Board is asking for site specific consideration of an accident a( 4 ] whose consequences were within the spectrum of accidents considered in developing 1 the Comission's emergency preparedness regulations. With respect to the Board's proposed issue, the Boar,assumef that ev is a desirable alternative in the case of a catastrophic earthquake and(rele ~f 3 j from the facility. Evacuation would not be the appropriate response in such a casa. Evacuation is not recommended as the imediate action for any short ~ ( time scale release where the evacuation is doubtful of completion before the exposure would occur. The staff's reconnendations in such an event would J be to instruct the ' population to take shelter (see Appendix 1 of NUREG-0654, p 1-17. General Emergency item 4.c.). The appropriate action after plume passage would then be to relocate exposed individuals out of the contaminated l area, which would likely be a narrow area on which deposition of particulate d ( + -..w,,_ . m ,-a, -~ = - - - - - - -
t 4 l i material occurred during plume passage. This relocation effort would result g in available resources being focused on a small area within the plume exposure EPZ but, because of the magnitude of the postulated release, ad hoc efforts would need to be extended well beyond the EPZ under the " footprint" of the plume. Although the events evaluated in WASH-1400 (and presented in NUREG-0396) assumed relocation would occur within about four hours after plume passage, relocation within about one day would still provide substantial benefits in terms of dose reduction. The above discussion does not treat the other likely effects of such a catastrophic event such as fatalities which would occur if homes collapsed. Those involved in such an earthquake would receive priority attention from the full resources of the U. S. government and such aid would not be restricted to the licensee or the State and local responding jurisdictions as implied in the ~
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l Board's statement of the issue. In view of the above discussion, it is not clear what the Board would
- 1 consider " timely" evacuation or protection for those in the EPZ. The Board shou ~d recognite an ime.-tant aspect underlying the emergency preoaredness
~ regulations. That is, in the worst case accidents (from whatever scer.ario) fatalities cannot be ruled out even with emergency preparedness measures that 1 i:] fully meet the Comission's regulations. The Board assumes that a test of j adequacy can be obtained by postulating worst case events while the Comission's
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'f regulations take an entirely different approach to the matter. 1 Even if one were to procede with the Board's approach, it is not clear from the Board's Order whether a discussion of accident consequences is desired. k
I (The consequences, as noted above would be similar to those of the WASH-1400 PWR-2 case which results in a large, fast release at near-ground level.) ~ In sumary, emergency planning for the San Onofre site has included consideration of both large accidents and earthquake effects. The combination of responses to these effects, while highly dependent on the actual situation, has been considered by providing for a feedback of offsite conditions to the licensee so that recommendations for protective actions related to radiological hazards can be appropriately adjusted. The added postulate of the Board of an extremely large eart.hquake and radiological hazard does not affect the type of response but only the degree to which additional outside resources would need to be called on to supplement the local and State response. The mechanism j for bringing these additional resources into play is the same as in any large disaster situation in which the Federal Emergency Management Agency (FEMA) f.f serves as the coordinator of the total available civilian and military resources o of the U. S. Government. The NRC and FEMA staffs could provide testimony on how this is done in practice if this would be of assistance to the Board. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 4, 1981. = ~ u v Brian K. Grimes e o m
.. ? UNITED STATES OF AMERICA ( NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of y J SOUTHERN CALIFORNIA EDISON COMPANY, ) Docket Nos. 50-361 OL ET AL. ) 50-362 OL (SanOnofreNuclearGeneratingStation,) Units 2 and 3) 3 CERTIFICATE OF SERVICE i I hereby certify that copies of "NRC STAFF COMMENTS WITH RESPECT TO THE BOARD"S ORDER OF JULY 29,1581 RAISING AN ISSUE CONCERNING EARTHQUAKES AND EMERGENCY PLANNING" in the above-captioned proceeding have been served U on the following by deposit in the United States mail, first class, or i, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission's internal mail syste,m this a+5 day of August.198h i(
- James L. Kelley, Esq., Chairman David R. Pigott, Esq.
Administrative Judge Samuel B. Casey, Esq. Atomic Safety and Licensing Board John A. Mendez. Esq. U.S. Nuclear Regulatory Commission Edward B. Rogin. Esq. Washington, D.C. 20S55 Of Orrick Herrington & Sutcliffe A Professional Corporation. Dr. Cadet H. Hand, Jr., 600 Montpmery Street Administrative Judge San Francisco, California 94111 c/o Bodega Marine Laboratory d, University of California Alan R. Watts, Esn. ? P. O. Box 247 Daniel K. Spradlin ) Bodega Bay, California 94923 Rourke & Woodruff d 10555 North Main Street 9 Mrs. Elizabeth B. Johnson, Suite 1020 J Administrative Judge Santa Ana, California 92701 j Oak Ridge National Laboratory P. O. Box X Building 3500 ~ ' Richard J. Wharton, Esq. j Oak Ridge. Tennessee 37830 University of San Diego School of Law Alcala Park j Janice E. Kerr, Esq. San Diego, California 92110 l J. Calvin Simpson, Esq. Lawrence Q. Garcia. Esq. Mrs. Lyn Harris Hicks California Public Utilities Commission GUARD J 5066 State Building 3908 Calle Ariana San Francisco, California 94102 San Clemente, California 92672 j( 9 e
[ _. N _.__.:_._-._x a __....r._.___. m._... = _. _.. - - ? Charles R. Kocher Esq. A. S. Carstens James A. Beoletto Esq. 2071 Caminito Circulo Norte Southern California Edison Company Mt. La Jolla, California. 92037 l 2244 Walnut Grove Avenue i Rosemead, California 91770
- Atomic Safety and Licensing Board i
Panel. l David W. Gilman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert G. Lacy San Diego Gas & Electric Company i P. O. Box 1831
- Atomic Safety and Licerising Appeal San Diego, California 92112 Board Panel U.S. Nuclear Regulatory Commission Phyllis M. Gallagher, Esq.
Washington, D.C. 20555 1695 West Crescent Avenue Suite 222
- Secretary Anaiefm, California 92701 U.S. Nuclear Regulatory Commission
' ATTN: Chief. Docketing & Service Charles E. McClung, Jr., Esq. Branch 1 Fle.ning, Anderson, McCluTig & Finch Washington, D.C. 20555 23521 Paseo De Valencia l Suite 308A Laguna Hills, California 92653 } it 3 gase,h;the,g n 0
=.;.. : ...a._.._-a.,... ,..u.. ~ ,=... . ~ .~ Ih ) 8 1 August 31, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 1
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In the Matter of 1 SOUTHERN CALIFORNIA EDISON CCitPANY, Docket Nos. 50-361 OL E, &. 50-362 OL (San Onofre Nuclear Generating ) Station, Units 2and3) ) NRC STAFF'S RESPONSE TO APPLICANTS' REQUEST 1 FOR CERTIFICATION TO THE NUCLEAR REGULATORY COMMISSION o ) INTRODUCTION On August 17, 1981, Southern California Edison Company and San Diego 1 i Gas and Electric Company (Applicants) requested this Board to certify an 1 9 issue to the Comission which was raised by the Board sua sponte in its August 7,1981 Order (Modifying an Issue Concerning Earthquake and Emergency Planning). The NRC Staff supports certification of the issue but would j clarify and restate the question to be certified as follows: Whether the Commission's Rules permit inquiry into the effects on a licensee's amergency response 4 capability of severe natural phenomena which are not i reasonably postulated to occur during a radiological !j! emergency throughout the facility's operating lifetime. i Certification is appropriate because the Board's Order raises issues currently pending before other licensing boards, could have severe adverse impacts on the timely completion of the licensing process and I could jeopardize not only the orderly conduct of this proceeding but of other ongoing proceedings as well, r 7 \\ lb ^ L) jv1 d /
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- - n um .e BACKGROUND The Licensing Board in this proceeding has had before it for some time the issue of the extent to which consideration of earthquakes should i play a role in assessing the adequacy of emergency preparedness for the San Onofre Nuclear Generating Stations, Units 2 and 3 (SONGS 2 & 3). In its April 8,1981 Memorandum and Order (Rulings on Motions to Compel Answers to Interrogatories), the Board recognized that discovery on an issue involving the extent to which a " major earthquake" could impact upon the functioning of Applicants' emergency plan raised a new matter in thisproceeding.M In its Memorandum and Order of April 17,1981(Ruling j on Motion for Protective Order), the Board recognized that no contentions I in the proceeding encompassed earthquake considerations. Nonetheless the. Board permitted Intervenors to continue discovery on this matter to j assist the Board in determining whether it would itself pursue these concernssuasponte.E Subsequently, the Board called for briefs on the issue in its revised Prehearing Conference Order of May 28, 1981. The NRC Staff filed its views with the Board on June 22, 1981. On July 29, I! 1981, the Board issued its Order (Raising on Board's Motion an Issue 1 ] Concerning Earth-April 8,1981 Memorandum and Order, pp.1-2. l y April 17, 1981 Memorandum and Order, p. 7. 4 0
. N... -a ..-.k z. -. =.z. .a...-. ~ 1, i . 'r quakes and Emergency Planning) and permitted the parties to comment on this issue, l The NRC Staff, following the guidance in NUREG-0654, Rev.1 j pp. 4-6. to consider natural phenomena which may be projected to be experienced in the plant vicinity, has requested applicants in earthquake prone regions to consider earthquakes as a part of their emergency . planning. This is consistent with the consideration of other environ-mental factors such as blizzards, fog, tornados or hurricanes in other geographical climates. The phenomena to be considered are those reasonably anticipated in the geographical region where the site is situated but do not include severity levels not reasonably expected to be experienced during the facility's operating lifetime. To avoid the problem of deter, mining what severity of earthquake should be considered as prudent for q planning purposes the Staff indicated in its June 22, 1981 brief that the SSE level of severity would bound even the most conservative planning assumptions.E In view of the level of seismic activity in California, prudent i emergency planning in the Staff's view, requires some consideration of j the ability to transport necessary personnel to the plant to cope with -
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the earthquake. In addition, there should be assurance of continued q communication between the plant and off-site agencies. Capability should exist to obtain damage estimates' both to the plant and to comunication and transportation facilities off site to prepare a data base to factor y The OBE appears, by definition, to more closely reflect the severity that might reasonably be expected to occur,10 C.F.R. Part 100 App. A. III(d). ,.~#
p- _ u m.__..~_.____. _.u_._._ _. _ _ _ _..m:_ 1.. i into the decisionmaking process. Finally, the Applicants should have available' a range of recommendations to off-site authorities taking into account the degree of damage to the plant caused by an earthquake and to transportation and comunication facilities off site. These factors warrant consideration to assure that Applicants and other emergency response agencies have the capability to appropriately implement their emergency plans. 10 C.F.R. 50.47(a). The Staff is, however, of the further view that consideration need not be given to a very severe seismic event ceincident or nearly coin-cident with a significant accident posing a radiological hazard due to the very low likelihood of occurrence of such a coincident or nearly j coincident set of events. The Board apparently shares the Staff's view on this point for it stated in its April 17, 1981 Memorandum and Order: We would go much further. Without in any sense questioning the need for guarding against the event, and whatever the mathematical odds may be, one can say that the likelihood of a major radiological emergency with serious offsite effects at a particular nuclear power .l plant is "relatively improbable." Similarly, even in j a seismically active area, one can say that the chances of a major earthquake's occurring in the forty-year life of a nuclear plant and disrupting key elements of its emergency plan is "relatively 4 improbable." That both of these "relatively improbable" 44 events could occur at or about the same time--the Applicants' "multipTe disaster"--seems virtually inconceivable. Such a remote contingency can be safety disregarded for any regulatory purpose (foot-note omitted). At p. 5.
_ _. _ E.a... ____ m m. =v A ._a.._ j Nonetheless, the Board subsequently determined to inquire, on its own,intotheimpactsofearthquakesgreaterthantheSSE.#l The Board specifically indicated in its August 7,1981 order. In posing the foregoing the Board wishes to learn what the physical consequences of earthquakes, in a scale of increasing severity beyond the SSE, would be upon the emergency plans as they relate to communications and evacuations up to some presumed point where evacuation would become a physical impossibility in any reasonable time frame. _ A point of beginning should relate to the presumed consequences of an SSE magnitude earthquake upon i evacuation and the necessary related communications and highways. At p. 3. [Emphasisadded.] The Staff's comments were filed on August 4,1981, and on August 7, 1981, the Board issued its Order (Modifying an Issue Concerning Earth-quakes and Emergency Planning). On August 17, 1981, the Applicants filed their Request for Certification to the Nuclear Regulatory Commission. In the cover letter accompanying Applicants' request, Applicants sought
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- l expedited consideration of this question by the Licensing Board.
The Staff support! expedited consideration of this question by the Licensing Board and strongly supports Applicants' request for certification to the Nuclear Regulatory Commission of the appropriatenes's of consideration in this proceeding of the issue identified by the Board in its August 7. - 1 -{ 1981 Order. .i 1 4] Although consideration of the effect of an SSE in itself imposes a 1 very conservative level of severity, the Staff did not object to offering evidence to this extent. The Board Order, however, clearly goes beyond. t 4 4 ' - = - - - ~ ' - - - - ~ " ~ " ' ' ' ' - - ~ " ' - ~
- y x- _a __ m_ w. s a.u. DISCUSSION A. Standards for Certification The standards to be applied in detennining whether an interlocutory appeal will be considered have been stated to be where the ruling either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal, (2) affected the basic structure of the pro-ceeding in a pervasive or unusual manner or (3) presents a significant legal or policy question on which Commission guidance is needed. Public Service Company of Indiana (Harble Hill Nuclear Generating Station, Units 1
- 1 and 2), ALAB-405, 5 NRC 1190 (1977), U.S. Nuclear Regulatory Commission State,
ment of policy on Conduct of Licensing Proceedings, dated May 20, 1981., at p. 7; see also Houston Lighting & P0wer Company (Allens Creek Nuclear Generating Station, Unit No. 1), ALAS-635, 13 NRC 309 (1981). The instant request for certification meets all three tests. Applicants assert that the Board's sua soonte issue will require the development of a new emergency plan and the presentation of testimony on
- d that plan. Memorandum of Points and Authorities in Support of Request for Cer-tification to the Nuclear Regulatory Comission (Memo. in Support), at
- p. 4.
Applicant also asserts, and the Staff agrees, that this new require- { ment will lead to additional delays to the conclusion of this proceeding which could cause then irreparable harm. With respect to the second criterion, the proposed issue will pervasively affect the basic structure of this proceeding by requiring a restructuring of the hearing schedule and a burdensome expansion of the scope of required evidence. (Memo.in Support, p. 4). While the Staff believes that the meeting of the first
u _.-.--.=-.. s u _ ~.. w. .a - .( .? ~ i and second criteria establish that certification is appropriate in this case, it is the third criterion which the Staff believes establishes a compelling reason for certification. The action taken by the Licensing Board has implications with respect to the regulatory program which the Commission should consi4r. Simply put, the Licensing Board's Order of August 7,1981, in its two and one-half typewritten pages, extends this Commission's emergency planning regula-tions to require explicit consideration in this proceeding of the Applicants' emergency planning capability complicated by an earthquake in excess of r the Safe Shutdown Earthquake (SSE). However, this expansion of the scope of emergency preparedness issues which must be considered will, if adopted i by other boards affect all Part 50 license applications since it calls for explicit consideration of the effects of emergency planning of very i: severe natural phenomena, in fact, of a severity beyond that considered in establishing the fundamental safety integrity of the facility. B. Standards for Raising Issues Sua Sponte Ij With respect to the Licensing Board's exercise of its sua sponte i li l power under 10 C.F.R. 9 2.760a, the Staff would note that the Comission has limited the use of that authority by regulation to "... serious safety, i, environmental, or common defense and security matter [s]...." 10 C.F.R. [j i 2.760a. Although under 10 C.F.R. 2.760(a) a Board is required to find it that a serious safety, environmental, or common defense and security e matter exists in order to consider a new issue sua sponte, the Licensing Board lias made no such finding here. Indeed, quite to the contrary, as the exerpts from the Board Orders of April 17 and Juiy 29, 1981, supra at pp. 5-7, indicate, the Board is of quite the contrary view, namely, that l l
_ ___2 - _.._.__.c . u _m.a. - - the potential for a serious earthquake in excess of the SSE is " rela-1 tively improbable." fleither the July 29, 1981 Order nor the August 7, 1981 Order lays a foundation for the exercise of the Board's sua sponte l authority. Certification of this question to the Commission would provide j i the Licensing Board with an opportunity to fully outline its thinking on this point to assist the Commission in making a determination as to whether sua sponte authority was properly exercised in this case. 4 C. Applicant:;' Arguments for Certification Applicants' arguments may be categorized as raising two significant a; issues which meet the second or third Marble Hill, supra, standards for certification (unusual or pervasive effect on the basis structure of the proceeding or presents a significant legal or policy question on which ll Comnission guidance is needed). First, reading 10 C.F.R. Part 50 5 50.47 in pari materia with 10 C.F.R. Part 100 Appendix A Applicants argue that the Board is legally barred from considering earthquakes more severe than the SSE identified {!!j for the site absent a finding pursuant to 10 C.F.R. I 2.758 of special t lj circumstances or at least a serious safety issue pursuant to 10 C.F.R. ' 6 2.760a. (Memo In Opposition, pp. 38, 34, see also pp. 26, 30 and 40). Second, Applicants take issue with the Board's application of the Vermont YankeeN octrine in this proceeding arguing that while boards l! d lt may be' permitted to investigate matters not specifically governed by regulations, they are not permitted to undertake investigations neither 5/ Vermont Yankee Nuclear Power Corporation (Vermont Nuclear Power Station), CLI-74-40, 8 AEC 809 (1974).
~ l ._. _ _. _a.m. _ m __ 2. ..._m.__ ._ _.... _ _ _. a ~ .g. required nor authorized by governing regulations because such inquiry constitutes either a challenge to the sufficiency of the Commission's ~ regulations or an impermissible usurption of the Commission's rulemaking authority. (Memo In Opposition p. 39). Applicants' first argument that the Commission's regulations bar i boards from considering earthquakes more severe than the SSE is derived from an analysis of the history of emergency planning requirements. (Memo In Opposition pp. 4-24). Applicant also argues by analogy that since the finding required by 10 C.F.R. I 100.10(c)(1) is no less stringent than that required by 10 C.F.R. I 50.47(a)(1) it must be logically concluded th_at earthquakes no more severe than the SSE are to be considered pursuant to the emergency planning rules. (Memo p. 25). Although the Staff does not agree with Applicants' assertion that the rules prohibit consideration of earthquakes, the Staff agrees that both qt. the Commission's prior practice and the logic of its regulatory scheme demonstrate that consideration of earthquake events more severe than the SSE is inappropriate. To abandon prior practice in this proceeding would ( unusually affect the basic structure of the proceeding and would present i an issue on which Commission guidance should be sought. The implications of the Licensing Board action in this matter are extensive. The same criteria are applied to all Part 50 licensees with respect to the General Design Criteria as well as for earthquake consider-i ~ations. The earthquake criteria are set forth in 10 C.F.R. Part 100, l Appendix A and are generically applied recognizing the seismic activity l of the region in which a facility is located. The criteria are uniform 1, s'
b 22 _ c_.. L mu .I ll, 4 and their application should produce site-specific SSE's with approxi-i j. mately egyivalent degrees of conservatism inherent in them. An SSE selected for a facility in California will be somewhat larger than aa SSE ~ selected for a facility in a less seismically active region. Con',equently. l} there are no distinguishing circumstances which would prevent the appli-cation of the Board's approach to all Part 50 facilities. Indeed, if the Board's approach is valid, the Nuclear Regulatory Commission would in fact be compelled to require that the same type of examination sought by the Licensing Board in this proceeding be conducted for each facility licensed pursuant to Part 50. In effect then, the Licensing Board's action has dramatically increased the sweep of the Commission's emergency j slanning regulations and extended those regulations to require in each licensing proceeding explicit consideration of emergency planning comp 11-l cated by an earthquake in excess of the SSE with its attendant radiological I impacts as well as other severe natural occurrences which are not reasonably postulated to occur during the facility's operating lifetime. In fact j one could, based on this Licensing Board's action further extend consideration j to other events exceeding design basis criteria. While the Comission i nay view such an extension to be proper, such an expansion of the Commis'sion's emergency planning regulations should be a question for the Commission to ] decide. 1 ] With respect to Applicants' second argument, the Staff has previously addressed the Vermont Yankee case in "NRC Staff Views-..." filed June 22, 1981. As we indicated in that pleading, while Vermont Yankee does not, as a matter of law, foreclose inquiry into earthquakes larger than an l SSE, such inquiry must be based on a reasonable factual basis for asserting that consideration of such events is warranted. We disagree with the /
Ua [_... _ [._.._ m m.m __ _.; _ -m C. !t - l Licensing Board's application of the Yemont Yankee doctrine to the facts in this proceeding in order to justify the issue posed by the Board. The mere fact that the SONGS facility is located in a region known for earthquake activity, does not justify consideration of hypothetical earthquakes more f severe than those which can be reasonably identified and/or expected to l occur during the facility's operating life. In Vermont Yankee the Commission concluded that if appropriate find-ings are made, consideration of criteria beyond that set forth in the rules may be acceptable. Whether such consideration is appropriate is a question to be determined based on the particular circumstances of the j, case involved. The Commission specifically held that such a deter- ~ d mination must be appropriate in the circumstances of a specific case and il must have a fa:tual basis. On this point the Commission said in Vermont Yan-I kee: Thus, we specifically hold that the phrase " degraded a i! emergency core cooling functioning" as used in criterion 50, means emergency core cooling functioning degraded beyond the requirements of the acceptance criteria, though nct tc the point of ECCS failure. Reliance upon this concept in a licensing case must come of course.
- i accompanied by a showing that the parties position has 1
a factual basis. (Emphasis supplied).
- p. 8-12.
1 However, no analogy with Vemont Yankee can be made in this proceeding.' it The Licensing Board has not identified a regulatory requirement much less }. a General Design Criterion which would warrant extension of emergency d planning considerations to earthquakes in. excess of the SSE. The record Li i!~ before this Licensing Board is totally devoid of any factual basis for such an extension. In fact, the Board has recognized on a number of occasions the speculative nature of its inquiry. In its April 17, 1981 Memorandum and Order, the Board noted "... even in a seismically active area, one can say that the chances of a major earthquake's occurring in / __.__. ~. _ _ _ _,... -. _ _ . _ _. _ _ _ _. _ ~.. ~ _.. _ _. -. -,. -
,m - ga -2 .s. _,. ;.. _ -- m i a i the forty-year life of a nuclear plant and disrupting key elements of its emergency plan is 'relatively improbable'". At p. 5. In its July 29, 1981 Order, the Board noted "although it is extremely unlikely, an earthquake in excess of the SSE could conceivably occur near the facility." (Emphasis supplied). At pp. 2-3. Presumably this last comment was made by the Board with appreciation of the extensive factual record which has been t developed before it on the very question of the conservatism inherent in the SSE. The hearing before the Board had been in session for about twenty days solely on the geology-seismology contentions admitted yet 1 neither its July 29, 1981 Order nor the August 7, 1981 Order contains any suggestion that the conservatism which both Applicants and NRC Staff argue is present in the SSE selected for SONGS 2 & 3 was questioned by the Board to the extent of rising to the level of a "... serious safety, environmental, or common defense and security matter...." 10 C.F.R. n I 2.760a. Indeed, neither order even suggests that such a matter is raised. L The Licensing Board has not established the required factual basis 1 to extend consideration of severe earthquakes in the context of emergency M il planning. Such basis must be stated by a Licensing Board if the partier are to have the due notice of the substance of the concern to which they 'l are entitled to enable them to meaningfully address the matter in the j; context of the evidentiary hearing. Pacific Gas and Electric Company i (Diablo Canyon Nuclear. Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 1 (1978) at 411. ..., - - ~,. _
o ~ ~ Although not agreeing with Applicants' conclusion that the Board's sua sponte issue is a violation of the Administrative Procedure Act since it constitutes reulmaking without notice and comment, the NRC Staff does believe that the Board's action is not consistent with the Comission's intent in Vermont Yankee and thus, if not withdrawn, raises a significant i legal and policy question on which Commission guidance is required. j CONCLUSION The Staff supports Applicants' request for certification to the Commission of the issue framed by the Licensing Board in its August 7, 1981 Order. A major question of both law and policy is involved and the criteria of the Commi_ssion's Statement on Policy on Conduct of Licensing 3 j Proceedings is met. Furthermore, certification of the question would provide the Commission with additional information to assist in deter- ]II mining whether or not the Licensing Board properly exercised its sua l sponte powers in taking this issue up on its own motion. Re ectfully submitted, n'Wk Richard K. Hoefling O Counsel for NRC Staff I 8 Y@&b i La rence . Chan 1er ]. Deputy As 'stant Chief Hearing Counsel Dated at Bethesda, Maryland this 31st day of August 1981 i .~_ ~, -..
1 a.._ .._.___.._.a___- .. _... _ _.m.m = e. 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD j
- ,j In the Matter of
~l SOUTHERN CALIFORNIA EDISON COMPANY, ) Docket Nos. 50-351 OL 3_ ET AL. 50-362 OL (San Onofre Nuclear Generating Station. ) Units 2 and 3) ) CERTIFICATE OF SERVICE } I hereby certify that copies of "MRC STAFF'S RESPONSE TO APPLICANTS' REQUEST 1, FOR CE.RTIFICATION TO THE NUCLEAR REGULATORY COMMISSION" in the above-captioned j proceeding have been served on the following by deposit in the United States mail, first class or as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 31st day of August,1981: i i
- James L. Kelley, Esq., Chairman David R. Pigott, Esq.
.t Administrative Judge Samuel B. Casey, Esq.
- i Atomic Safety and Licensing Board John A. Mendez Esq.
U.S. Nuclear Regulatory Commission Edward B. Rogin Esq. ] Was:iington, D.C. 20555 Of Orrick, Herrington & Sutcliffe l A Professional Corporation l Dr. Cadet H. Hand, Jr., 600 Montgomery Street Administrative Judge San Francisco, California 94111 j. c/o Bodega Marine Laboratory University of California Alan R. Watts, Esq. P. 0. Box 247 Daniel K. Spradlin Bodega Bay, California 94923 Rourke & Woodruff 10555 North Main Street Mrs. Elizabeth B. Johnson, Suite 1020 Adninistrative Judge Santa Ana, California 92701 i Oak Ridge National Laboratory P. O. Box X, Building 3500 Richard J. Wharton, Esq. Oak-Ridge, Tennessee 37830-University of San Diego School. of Law Alcala Park Janice E. Kerr, Esq. San Diego, California 92110 J. Calvin Simpson, Esq. Lawrence Q. Garcia, Esq. Mrs. Lyn Harris Hicks + i California Public Utilities Commission GUARD 5066 State Building 3908 Calle Ariana San Francisco, California 94102 San Clemente, California 92672 l ...y
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- Charles R. Kocher, Esq.
A. S. Carstens James A. Beoletto Esq. 2071 Caminito Circulo Norte Southern California Edison Company Mt. La Jolla, California 92037 .2244 Walnut Grove Avenue Rosemead, California 91770
- Atomic Safety and Licensing Board Panel David W. Gilman U.S. Nuclear Regulatory Comission Robert G. Lacy -
Washington, D.C. 20555 San Diego Gas & Electric Company P. O. Box 1831
- Atomic Safety and Licensing Appeal San Otego, California 92112 Board Panel U.S. Nuclear Regulatory Commission Phyllis M. Gallagher, Esq.
Washington, D.C. 20555 i 1695 West Crescent Avenue Suite 222
- Secretary Anaheim, California 92701
.U.S. Nuclear Regulatory Commission ATTN: Chief. Docketing & Service Charles E. McClung, Jr.. -Esq. Branch Flening, Anderson, McClung & Finch Washington, D.C. 20555 i 235C1 Paseo De Valencia i Suite 308A I Laguna Hills, California 92653 l / fish an s 0$ j Lawrence J. ChandTer Counsel for NRC Staff 1 ij
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