ML20140B238
| ML20140B238 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/10/1981 |
| From: | Fleischaker D, Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, FLEISCHAKER, D.S., JOINT INTERVENORS - DIABLO CANYON |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20140B233 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8109140114 | |
| Download: ML20140B238 (16) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAR e,
DOCKEFED usuna
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In the Matter of:
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5 0 - 2 7 5 0. L. ' h 6 % :.1 [ ' C PACIFIC GAS & ELECTRIC
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Docket Mos.
COMPANY
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50-323 0.L.
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(Diablo Canyon Nuclear
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Power Plant, Units 1 & 2
)
(Low Power Test Proceeding)
)
JOINT INTERVENORS' APPLICATION FOR A STAY Pursuant to 10 C.F.R. 52.788, the SAN LUIS OBISPO MOTHERS FOR PEACE, SCENIC SHORELINE PRESERVATION CONFERENCE, IN C., ECOLOGY ACTION CL UB, SANDRA SILVER, GORDON SILVER, ELIZABETH APFELBERG, and JOHN J.
FORSTER (" Joint Intervenors") hereby apply to the Atomic Safety and Licensing Appeal Board
(" Appeal Board") for an order staying the effectiveness of the Atomic Safety and Licensing Board's
(" licensing board") July 17, 1981 decision which author-izes the issuance of licenses to load fuel and conduct low power tests at the Diablo Canyon Nuclear Power Plant ("Diablo Canyon"),
Units 1 and 2.
Under current NRC regulations, that decision, which requires the Director of Nuclear Reactor Regulation to issue the license within ten days, is immediately effective, unless the Com-mission, sua sponte, determines otherwise.
For the reasons stated l
herein, Joint Intervenors request that the Appeal Board stay the licensing board's decision in order to prevent irreparable harm and to preserve the status quo pending due consideration of an appeal of that decision on the merits.
8109140114 810910 PDR ADOCK 05000275 g
. I.
SUMMARY
OF THE LICENSING BOARD'S_ __ DECISION Briefly stated, the licensing board concluded tilat compliance with the Commission's emergency planning regulations is not required prior to low power operation and, further, that the standards which they prescribe need not even be addressed.
Ignoring uncontradicted testimony as to the absence of effective offsite preparedness, the board concluded that the current level of preparedness is sufficient in light of th2 " reduced risk" of low power operations, a reduction which the board did not attempt to quantify.
The board further con-cluded that NUREG-0737 valve performance testing need not be com-pleted prior to low power 2icensing and that all issues previously held in abeyance -- e.g.,
quality assurance and generic unresolved safety issues -- were unaffected by the TMI-2 accident and could 1/
now be resolved in favor of licensing without further hearing.
II.
GROUNDS FOR THE STAY The factors to be considered by the Appeal Board in connection with a request for a stay are:
l
[
(1) whether the moving party has made a strong showing that j
it is likely to prevail on the merits; (2) whether the party will be irreparabi, injured unless a stay is granted; (3) whether the granting of a stay would harm other parties; and 1/
On August 3, 1981, Joint Intervenors timely filed 165 exceptions to the licensing board's Partial Initial Decision and other orders issued during the course of the low power test proceeding.
O ly the most r-itical of the issues preserved by those exceptions are discussed in this application for a stay.
. (4) where the public interest lies.~2/
In the sections that follow, the Joint Intervenors examine each of the four factors and demonstrate that a stay is merited.-3/
A.
Joint Intervenors' Likelihood af Prevailing on the Merits Is Strong 1.
The Licensing Board Improperly Denied Joint Intervenors' Right To Be Heard Under The Administrative Procedure Act, The Atomic Energy Act, And The Commission's December 18, 1980 Revised Statement Of Policy And April 1, 1981 Order In This Proceeding The TMI accident challenged many of the assumptions upon which the licensing process had been based by exposing deficiencies in plant design and operating procedures that, before the accident, had been overlooked or judged as tolerable risks.
Recognizing this, the Commission issued a series of TMI-related reports and policy statements culminating in additional licensing requirements published as NUREG-0737, " Clarification of TMI Action Plan Requirements,"
which were adopted by the Commission on December 18, 1980 in its 2/
10 C.F.R. S2.788.
1 3/
Unlike other prcceedings in which low power licenses have been approved, this is not a case where such licensing is unopposed (In the Matter of Maine Yankee Atomic Power Co., 5 AEC 2 (1972); In the Matter of Consumers Power Co. (Palisades Plant), 4 AEC SC3 (1971)),
or, if opposed, where the reactor has already gone critical on a prior occasion pursuant to a stipulation of the parties (In the Matter of Consolidated Edison Co. of New York, Inc., 6 AEC 587 (1973))- where testing would not require that the reactor go critical (In Lt.e Matter of Virginia Electric and Power Co.,
6 NRC 808 (1977)), or where an identical unit cII the same site has already been operating for some time, the Licensing Board has made a finding of serious power shortage in the area, and full power licensing hearings are almsot complete (In the Matter of Wisconsin Electric Power Co. and Wisconsin Michigan Power Co.,
4 AEC 951 (1972); see also 4 AEC 899 (1972) and 4 AEC 832 (1972)).
. Revised Statement of Policy, "Further Commission Guidance for Power Reactor Operating Licenses" (45 Fed. Reg. 85236).
Because none of these docu.nents was submitted for notice and comment pursuant to the Administrative Procedure Act ("APA"), the Commission explicitly pro-vided that " parties may challenge either the necessity for or suf-ficienc. of the [NUREG-0737] requirements.-4/
In disregard of this Commission directive, the licensing board rejected the majority of Joint Intervenors' TMI-related contentions in the low power test proceeding because they were "not directly related to NUREG-0737 requirements."-5/
When the Commission ruled once again on April 1, 1981 that contentions need not be limited to specific NUREG-0737 requirements,-6/ Joint Intervenors sought reconsideration of the previous denial of contentions,-7/ which re-quest (supported by affidavit) was summarily denied by the licensing board.-8/
I l
4/
Revised Statement of Policy, at 8.
5/
Prehearing Conference Order, at 13-15 (February 13, 1981),
The Board stated:
[T]he Board does not believe it reasonalce to interpret the provision permitting the challenge <>f the sufficiency of new regulatory requirements as permi ccing the addition of requirements not contained in NUREG 0737.
6/
In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
NRC (April 1, 1981) 7/
Joint Intervenors' Edsponse in Opposition to NRC Staf f's and Pacific Gas and Electric Company's Motion for Reconsideration, at 8-20 (April 22, 1981).
8/
Memorandum and Order (Denying Motions for Reconsideration)
(April 30, 1981).
l I
The board's rejection of Joint Intervenors' TMI-related con-tentions was erroneous as a matter of fact and law.
First, many of the rejected contentions were, in fact, related to specific NUREG-0737 requirements.-9/
Second, by citing NUREG-0737 as an inflexible limitation on Joint Intervenors' substantive right to litigate safety issues relevant to operating Diablo Canyon, the board improperly con-ferred on NUREG-0737 the status of substantive regulations.
- However, neither NUREG-0737 nor the Revised Policy Statement were subject to public notice and comment.
Accordingly, the licensing board's ruling violates the APA provisions that preclude use of the NUREG-0737 criteria as binding norms absent an opportunity for public notice and comment.--10/
In addition, by limiting the scope of contentions to the speci-fic requirements of NUREG-0737, the board has effectively denied the right of interested persons to a hearing on all relevant contentions going beyond that limitation.
Such a limitation constitutes a direct violation of S189(a) of the APA, which guarantees to all interested parties the right to a hearing upon request prior to issuance of a 11/
license.
Therefore, the board's rejection of Joint Intervenors' 9/
See discussion in and af fidavit attached to Joint Intervenors' filing cited at note 7 supra.
10/
See e.g.,
Chamber of Commerce of the United States v. Occupational Safety and Health Administration, F.2d 1980 (OSHD 524,536 at 30,191 (D.C. Cir. July 10, 1980); Joseph v. United-States Civil Service Commission, 554 F.2d 1140, 1153-54 (D.C. Cir. 1977); American Iron and l
Steel Institute v.
Environmental Protection Agency, 568 F.2d 284, 292 (3d Cir. 1977).
11/
See Brooks v. Atomic Energy Commission, 476 F.2d 924, 926 (D.C.
Cir. 1973) (per curiam); Westinghouse Electric Corporation v.
U.S.
Nuclear Regulatory Commission, 598 F.2d 759, 772-73 (3d cir. 1979).
l I
L
. contentions because they were not "directly related" to NUREG-0737 requirements was improper and must be reversed.
2.
The Licensing Board Misconstrued The Commission's Emergency Planning Regulations By Holding Them Inapplicable To Low Poner Operation As one of its primary responses to the TMI-2 accident, the Com-mission significantly revised the emergency planning reg >1ations which became ef fective November 3, 1980.
They reflect the Commission's conclusion that " adequate emergency preparedness is an essential the protection of the public health and safety,"--12/
- and, aspec" c
xplained in the regulations themse.lves, they establish " mini-mum requirements for emergency plans for use in attaining an accept-a.ble state of emergency preparedness."--13/ They consist of sixteen planning standards which must be complied with prior to issuance of 14/
any operating license, ur.less the applicant demonstrates under 10 C.F.R.
S50.47(c) that a particular deficiency is insignificant for purpose of the activity sought to be authorized.
The regulations provide no general exception for low power operation.
Ignoring this background and the explicit language of the regula-tions, the licensing board held them inapplicable to PG&E's low power l
testing application.--15/
The board based its conclusion on a docu-12/
Emergency Planning:
Final Regulations, 45 Fed. Reg. 55402, 55404 (August 19, 1980).
13/
10 C.F.E Part 50, Appendix E, id., at 55411.
A4/
10 C.F ~.. S50.47(b)(1) provides that "[t]he onsite and offsite emergency response plans must neet the following [ sixteen) standards:
15/
Partial Initial Decision, at 22-24.
i l
. ment which by its terms justifies no such conclusion.
Indeed, that document -- which is not a regulation and has never been submitted for public notice and comment under the Administrative Procedure Act -- merely reaffirms the applicant's right under S50.47(c) to demonstrate the insignificance of any noncompliance for the acti-vity sought to be authorized.
The document does not -- nor could it since it is not a regulation--16/-- in any way alter either the effective date of the regulations or the obligations of the board to require a showing and make specific findings as to each regulatory standard not complied with.
Ignoring the conceded deficiencies of existing applicant, state, and local plans, under each of the sixteen stan-17/
dards,--
the board concluded that "a point by point examination of the planning standards of NUREG-0654, which would be necessary to obtain an exemption from full compliance with 50.47 under 50.47(c)(1),
18/
is no longer needed [ prior to low power operation]."--
3.
The Licensing Board Impermissibly Relied on Generalized Estimates Of Low Probability Of 3ccidents In Justifying The Absence Of Offsite
~Emergency Preparedness The licensing board justified the virtual absence of offsite pre-paredness at Diabln Canyon on generalized estimates of the low proba-bility of accidents or risk during low power operations.--19/
In so doing, it violated the basic principle of our regulatory process that i
16/
See note 9 and accompanying text supra.
17/
See Joint Intervenors' Proposed Findings of Fact and Conclusions of Law, at 11-29 18/
Partial Initial Decision, at 23.
3 I
19/
See 42 U.S.C.
SS2233(d), 2236(g), and 2237.
. even events with a low probability of occurrence must be anticipated and prepared for, a principle particularly applicable to emergency response planning.
Indeed, the Commission's emergency planning reg-ulations are predicated upon the principle that "onsite conditions and actions, even if they do not cause significant off-site radio-logical consequences, will affect the way the various State and local entities react to protect the public from dcngers, real or imagined, associated with [an] accident.--20/
Moreover, one of the critical lessons learned from TMI is that "[o]ne must do everything possible to prevent accidents of this seriousness, but at the same time assume that such an accident may occur and be prepared for re-
"21/
sponse to the resulting emergency.
The board's reliance on estimates of low accident probability constitutes, in effect, an impermissible attack on the regulations themselves in that its purpose is to permit operation of the Diablo Catyon facility despite noncompliance with the regulations in ques-tion.
Under the principle established in In the Matter of Vermont Yankee Nuclear Power corporation (Vermont Yankee Nuclear Power Sta-tion), ALAB-138 RAI-73-7, 520, 528-29 (1973), such a ruling violates the Atomic Energy Act and must be reversed.
20/
Notice of Proposed Rulemaking, " Emergency Planning," Preamble, 44 Fed. Reg. 75167, 75169 (December 19, 1979)(emphasis added); " Report to Congress on Status of Emergency Response Planning for Nuclear Power Plants," NUREG-077 5, at 1 (March 1981).
21/
Report of the President's Commission on the Accident at Three Rile Island, "The Need for Change:
The Legacy of TMI" (Kemeny Com-mission Report), at 17.
. 4.
The Licensing Board Erred in Ignoring The Conceded Failure Of Exis ting Emergency Plans To Consider The Effects Of An Earthquake The evidence at the hearing was uncontradicted and all parties conceded that existing applicant, state, and local emergency plans fail to consider and allow for the effects of a major earthquake on the Hosgri fault occurring simultaneously with a radiological emer-22/
gency at Diablo wm fon.~~
Particularly in light of the Commission's appreciation of the greater seismic risk associate 3 with nuclear plants in California cnd the continuing importance of seismic safety in this proceeding, this failure is a critical deficiency in emergency preparedness a. Diablo Canyon.-~23/
In this case, the licensing board ignored the undisputed testimony that existing plans do not allow for the effects of earth-quakes.
Further, the board failed completely to give any reason for its apparent conclusion that this critical deficiency need not be corrected prior to issuance of a low power operating license.
This failure to supply even a minimal explanation of its reasons for re-Jecting competent evidence on an issue of critical importance violates established Commission precedent.
In the Matter of Public Service Co.
of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N RC 33 (1977).
22/
See Jorgensen, at 2; Sears, at 7; Sears Tr. 11060, 11283; Schiffer Tr. 10878-79.
23/
In the Matter of Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3 ), Nos. 50-361-OL, (50-362-OL, Order (Raising on the Board's Motion an Issue Concerning Earth-quakes and Emergency Planning}, at 3 (July 29, 1981); see also, In The Matter of Southern California Edison Co (San Onof re Nuclear Power Generating Station), Memorandum and Order, at 2 (April 8, 1981).
. 5.
Issuance Of A Low Power License Would Violate The National Environmental Policy Act ("NEPA")
Issuance of low power licenses by the licensing board would violate NEPA 17 two principal respects.
First, the consequences of a Class 9 accident at Diablo Canyon h<ve never been addressed by the applicant or by the Staff.
Although the Commission had in the past excluded consideratior. of core melt accidents on the premise that their occurrence was of such low probability that neither NEPA nor the AEA required their consideration, the TMI accident destroyed that premise.- In fact, on June 13, 1980, the Commission issued a " Statement of Interim Policy" requiring that environmental impact statements in-clude consideration of Class 9 accident sequences.--24/
Notwithstanding this change of policy, the licensing board on June 19, 1981 --
over two years after the TMI accident -- rejected Joint Intervenors' right 25/
to litigate the absence of such consideration in this case.
Second, neither an EIS nor an environmental impact appraisal has been prepared to consider the special environmental effects of 24/
The Commission's Interim Statement, entitled " Nuclear Plant Acci-
-d ni Consideration Under the National Environmental Policy Act of 1909" (45 Fed. Reg. 40101), provided that environmental impact statement s:
shall include coordinscion of the site-specific environmental impacts attributable to accident sequences that lead to releases of radiation and/or radioactive materials, including sequences that can result in inadcquate cooling of reactor fuel and to melting of the reactor core.
The Commission characterized its former policy excluding consideration of Class 9 accidents as " erroneous."
45 Fed. Reg. at 40103.
25/
In tho Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Memorandum and Order Denying Joint Intervenors Motion to Reopen Environmental Record for Consider-ation of Class Nine Accidents, LBP N RC (June 19, 1981).
-. low power testing at Diablo Canyon.
Because licensing of nuclear facilities constitutes major federal action within the meaning of NEPA, the preparation of an adequate EIS is a mandatory prerequisite to any decision by the Commission concerning a license application.
The failure of the board to require either an EIS or an environmenta'.
impact appraisal violates the explicit requirement of 13 C.F.R.
S51.5(b) and (c) thht eitner an EIS or a negative declaration and environmentol impact appraisal be prepared prior to "[i]ssuance of a license to operate a power reactor..'.at less than full power...."
Failure to comply with this unambiguous requirement mandates denial of the requested licenses.
42 U.S.C.
SS2233(d,, 2236(a), and 2237; 10 C.F.R. S50.57(a) and (c).
6.
Issuance Of A Low Power License Prior To Definitive Resolution Of Critical Safety Issues By The Commission Violates The Atcmic Energy Act Of 1954 ("AEA") And Regulations Promulgated Thareunder Currently pending before the Cummission are various Petitions for Rtview of the recent Appeal Board decision regarding seismic safety at Diablo Canyon.
Similar petitions will soon be filed con-cerning plant security.
Both issues are uniquely import. ant in this proceeding, involving novel questions never before presented to the Commission.
Both are fundamental to the assurances of protection of the public health, safety, and security which are mandatory pre-requisites to licensing under the AEA and the Commission's regulations.
42 U.S.C.
S2233(d); 10 C.F.R. S50.57(a).
As such, they bear directly on the ' Ce finitive safety finding" which both the United States Supreme Court and the Commission have required as a condition to issuance of any operating license under the AEA.
Power Reactor Development Company
. v.
International Union of Electrical, Radio and "achine Workers, AFL-CIO, 367 U.S.
396, 398, 407-11, 81 S.Cc. 1529 (1961); In the Matter of Long Island Lighting Co. (Snoreham Nuclear Power Station), ALAB-196, 6 AEC 831, 844-45 (1973).
Particularly in light of the unique importance of the seismic safety issue in this proceeding -- resulting from the confirmation, after construction had begun, of the existence of the Hosgri fault offshore and running within only a few miles of the plant -- no action should be taken which might materially alter the status quo or tip the balance away from concerns of safety so basic to the AEA.
B.
Joint Intervenors Will Be Irreparably Injured In The Absence Of A Stay If a license is issued for fuel loading and low power testing at Diablo Canyon, Joint Intervenors will be irreparably harmed in several significant respects.
First, nuclear materials will for the first time be introduced into the reactors, thereby posing a risk not only of worker exposure bu* of contamination of the facil-ity's components and systems.
(Affidavit of Dale Bridenbaugh, at-tached).
This irretrievable commitment of resources prejudices the Joint Intervenors' rights by committing t nis ager.cy even further to issuing a full power license for the plant prior to final disposition of significant safety issues (particularly seismic).
In addition, it tips the scale away from further plant modification, even though such modification may later be determined to be necessary.
Second, the conceded significant noncompliance of relevant emergency plans with the Commission's revised regulations poses a m
. danger that, in the event of an accident, the public will not be adequately prepared to respond.
As discussed supra, the board im-properly approved the license applications despite the virtual ab-sence of offsite preparedness, in complete disregard of the TMI ex-perience.
Unless that approval is stayed, the plant will operate, thereby posing a significant risk of irreparable and permanent harm to Joint Intervenors and the public generally should an accident occur and the public be unable to respond.
Third, if low power operations are allowed to commence, Joint Intervenors will in effect be deprived of any right to appeal be-cause the proposed low power test program will be completed before appellate review can be obtained.
Irreparable harm of this sort --
the loss of a right to judicial review before the activity in dis-pute has been completed -- has been recognized by numerous courts in 26/
granting a stay.--
Fourth, in the event the stay is denied and the licensing board is subsequently reversed on appeal, the costs of decontamination of the reactor would be substantial.
In the absence of the most com-pelling reasons for testing, common sense dictates that it be de-ferred for the minimal time necessary to decide the merits of Joint Intervenors' appeal.
26/
See e.g.,
Isbrandtsen Co. v. United S*.ates, 211 F.2d 51, 55 TD.C. Cir.), cert. denied, 347 U.S.
990, 24 S.Ct. 852 (1954); Dalmo Sales Co. v.
Tysons Corner Regional Shopping Center, 308 F.Supp 988 (D.D.C. 1970); Zenith Radio Corporation v. United _ States, 505 F.Supp.
216, 219 (U.S. Ct. Int. Trade 1980).
. C.
The Granting Of A Stay Will Do No Harm To Others As the affidavit of Richard Hubbard indicates, the time neces-sary to complete the proposed low power test program is approximately 55 days.
Diablo Canyon is currently scheduled to be licensed for full power in January 1982, assuming all issues are resolved favor-ably to PG&E.
(The licensing board has admitted one contention --
emergency planning -- in the full power proceeding.
Additional hear-ings and a decision favorable to PG&E must precede issuance of a full power license).
Thus, PG&E will not be harmed by the brief delay necessary to hear the appeal on the merits.
In the event a stay is iscued, there would still be ample time to complete low power test-ir.g prior to the earliest possible date for full power licensing.
D.
The Public Interest Favors A Stay The public interest would be best served by granting of a stay in order to assure that operation of the plant will be safe and will comply with all applicable regulations.
Further, a stay of the li-censing board's decision would assure that the resolution of all pending issues, in both the low and full power proceedings, will not be prejmdiced by the premature contamination of the reactor by radio-active material.
. IV.
CONCLUSION For the reasons stated above, Joint Intervenors submit that each of the factors set forth at 10 C.F.R. 52.788(d) weighs heavily in favor of granting a stay.
Accordingly, Joint Intervenors hereby i
tervenors hereby request this Appeal Board to stay the effectiveness of the licensing board's July 17, 1981 decision pending considera-tion and resolution of the merits of Joint Intervenors' appeal of that decision.
1 l
O e
- Sedember-Dated: M ust /c, 1981 Respectfully submitted, JOHN R.
PHILLIPS, ESQ.
JOEL R.
REYNOLDS, ESQ.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Fifth Floor Los Angeles, CA 90067 (213) 879-5588 DAVID S.
FLEISCHAKER, ESQ.
1735 Eye Street, N.W.,
- 709 Washington, D.C.
20006 (202) 638-6070 By A
'JOEL R.
REYNOLDS By (4M DAVID S.
FL EISCHAKER Attorneys for Intervenors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINES PRESERVATION CON FEREN CE, INC.
ECOLOGY ACTION CLUB SANDRA SILVER GORDON SILVER ELIZABETH APPELBERG JOHN J.
FORSTER l
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