ML20140B443
| ML20140B443 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/02/1981 |
| From: | Brown H CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8109140184 | |
| Download: ML20140B443 (72) | |
Text
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- l~- d' UNITED STATES OF AMERICA hef se& SeWj
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- NUCLEAR REGULATORY COMMISSION -
... N' s g44' BEFORE THE ATOMIC SAFETY AND LICENSING AFPEAL BOARD
)
In the Matter of )
) Dockct Nos. 50-275 O.L.
PACIFIC GAS AND ELECTRIC COMPANY ) 50-323 0.L.
)
(Diablo Canyon Nuclear Power ) (Low Power Proceeding)
Plant, Unit Nos. 1 and 2) )
)
$. /s BRIEF OF GOVERNOR EDMUND G. BROWN JR.
ON APPEAL OF THE LICENSING BOARD k
-U' N FIN N b,
PARTIAL INITIAL DECISION OF JULY 17, 1981 -Q ,
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\/^4 9 Byron S. Georgiou 'M ,b j Legal Affairs Secretary
- Governor's Office State Capitol Sacramento, California 95814 Herbert H. Brown Lawrence Coe Lanpher HILL, CHRISTOPHER AND PHILLIPS, P.C.
1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Governor Edmund G. Brown Jr.
of the State of California September 2, 1981 0
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8109140184 810902 PDR ADOCK 05000275 G PDR
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_ TABLE OF CONTENTS PAGE I. Introduction . . . . . . . . . . . . . . . . . . 1 II. Description of the Low Power Proceeding . . . . 8 III. Emergency Preparedness at Diablo Canyon Does Not Satisfy the Requirements of Section 50.47 . 11 A. The Licensing Board Erred in Relying on SECY-81-188 to Relieve PG&E of its Mandatory Evidentiary Burden Under Section 30.47 (c) (1) . . . . . . . . . . . . 12 B. The Documented Deficiencies in Emergency Preparedness at Diablo Canyon Preclude Issuance of Licenses for Fuel Loading and Low Power Operation . . . . . . . . . . 18
'1)
There is no County Emergency Preparedness . . . . . . . . . . 22 (2) The " Sheriff's Plan" for Evacuation of the LPZ Does Not Demonstrate Compliance with Section 50.47 . . . . . 26 (3) There is No Preparedness to Deal with the Complicating Effects of an Earthquake on Emergency Response . . 35 C. The Appeal Board must Reverse the Licensing Board's Decision on Emergency Preparedness . 41 IV. The Licensing Board Erred in Rejecting Subjects and Contentions Presented by the Governor and Joint Intervenors . . . . . . . . . . . . . . . 43 V. The Licensing Board Erred in Granting ".ummary Disposition of Issues Related to the Water Level Indicator System . . . . . . . . . . . . . 53 VI. The Licensing Board Erred in Failing to Require Preparation of the Requisite Environmental Analysis . . . . . . . . . . . . . 56 VII. Conclusion . . . . . . . . . . . . . . . . . . . 65 i
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TABLE OF CITATIONS Page -
l Judicial Decisions Baltimore & Ohio R. Co. v. Aberdeen & Rockfish Co.,
393 U.S. 87 (1968) 20 Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962) 20 l Chamber of Commerce of the United States v. Occupational !
Safety and Health Administration, 636 T.2d 464 (D.C. Cir. 1980) 45 l City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) 63 i Greater Boston Television Corp. v. FCC, 444 F.2d 841 ,
(D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971) 13-20 l Harborlite Corp. v. ICC, 613 F.2d 1088 (D.C. Cir. 1979) 20 Joseph v. United States Civil Service Commission, 554 F.2d 1140 (D.C. Cir. 1977) 45 Maryland-National Capital Ph. & Planning Comm. v.
l U.S. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973) 60 l Mid-Shiawassee County Concerned Citizenn v. Train, 408 F. Supp. 650 (E.D. Mich. 1976), aff'd 1220 (6th Cir. 1977) 60 Nader v. Nuclear Regulatory Commission, 513 F.2d 1045 (D.C. Cir. 1975) 59 l
i National Broadcasting Co. v. FCC, 516 F.2d 1101 l (D.C. Cir. 1974) 20
! N.L.R.B. v. Brown, 380 U.S. 278 (1965) 20 Pearce v. Director, Office of Workers' Compensation, 647 F.2d 716 (7th Cir. 1981) 59 l
Power Reac' tor Co. v. Electricians, 367 U.S. 396 (1961) 7 Sangamon Valley Television Corp. v. United' States, 269 F.2d 221 (D.C. Cir. 1959) 59 Scientists' Institute for Public Information, Inc. v.
Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir. 1973)' 60 SEC v. Chenery Corp., 318 U.,. 80 (1943) 20 t
Page S. W. Neighborhood Assembly v. Eckard, 445 F. Supp. 1195 (D.D.C. 1978) . . . . . . . . . . . . . . . . . . . . . . 60 United States ex. rel. Accardi v. Shaughnessy, 347 U.S.
260 (1954) . - . . . . . . . . . . . . . . . . . . . . . . . 59 Vitarelli v. Seaton, 359 U.S. 535 (1959) . . . . . . . . . . . 59 WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969) . . . . . . 20 Wingo v. Washington, 395 F.2d 633 (D.C. Cir. 1958) . . . . . . 20 Administrative Decisions Cincinnati Gas and Electric Co. (Zimmer Nuclear Power Station), ALAB-305, CCH Nuc. Reg. Rptr. t 30,035 (1976) 47 Consolidate'd Edison Co. of New York (Indian Point Nuclear Generating Station, Units 1, 2 and 3), CCH Nuc. Reg.
Rptr. t 30,133 (NRC 1977) 14, 15 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-315, CCH Nuc. Reg. Rptr. t 30,050 (1976) 7-8, 14 Detroit Edison Co. (Onrico Fermi Unit 2), LBP-78-ll, 7 NRC 381 (1978) 58 Duke Power Co. (Catawba Nuclear Stations, Units 1 and 2),
ALAB-355, CCH Nuc. Reg. Rptr. t 30,116 (1976) 14 Duke Power Co. (Oconec Nuclear Station), ALAB-528, CCH Nuc. Reg. Rptr. 1 30,366 (1979) 50, 51 Georgia Power Co. (Vogtle Units 1 and 2), ALAB -291, 2 NRC 404 (1975) 58 Gulf States Utilities Cv. (River Bend Units 1 and 2), ALAB-444, CCH Nuc. Reg. Rptr. 1 30,250 (1977) -
51 Houston Power and Light Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, CCH Nuc. Reg. Rptr. t 30,473 (1980) '
50 i
Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-321, CCH Nuc. Reg. Rptr. t 30,061 (1976) 64 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 A.E.C. 1003 (1973) SS h
r 7 1
. Page Mississippi Power and Light Co. (Grand Gulf Nuclear Station,
. Units 1 and 2), ALAS-130, 6 A.E.C. 423 (1973) 50 Northern Indiana Public Service Co. (Bailly Generating Station, Unit 1), ALAB-303, CCH Nuc. Reg. Rptr.
1 30,031 (1975) 44, 60 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 A.E.C. at 179 (1973) 19, 47 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41 (1978) 58 Portland General Electric Co. (Trojan Nuclear Plant),
LBP-78-40, 8 NRC 717 (1978) 58 Power Reactor Development Co., 1 A.E.C. 128 (1959) 7 Project Management Corp. (Clinch River Breeder Reactor) ,
CCH Nuc. Reg. Rotr. 1 30,060 (ASLB 1976) 50 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, CCH Nuc. Reg. Rptr.
1 30,216 (1977) 19, 47, 56 Southern California Edison Co. (San Onofre Nuclear Generating Station, Udits 2 and 3), Docket Nos.
50-361-OL and 50-362-OL, April 8, 1980 36 i
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), Docket Nos.
50-361-OL and 50-362-OL, July 31, 1981 38-39 Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138 (1973) 18 Virginia Electric and Power Co. (Surry Nuclear Power Station, Units 1 and 2), CLI-80-4, CCH Nuc. Reg.
Rptr. 1 30,463 (1980) 62 Statutes 5 U.S.C. S 551 . . . . . . . . . . . . . . . . . . . . . . . 5 5 U.S.C. S 557 (c) (3) (A) . . . . . . . . . . . . . . . . . . 21 42 U.S.C. S 2011 . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. S 2231 . . . . . . . . . . . . . . . . . . . . . . 21 42 U.S.C. S 4321 . . . . . . . . . . . . . . . . . . . . . . 2 iv
Page Code of Federal Regulations 10 C.F.R. S 2.730 (b) . . . . . . . . . . . . . . . . . . . 2, 52 10 C.F.R. S 2.732 . . . . . . . . . . . . . . . . . . . . 2, 52 10 C.F.R. S 2.743(b) . . . . . . . . . . . . . . . . . . . 27 10 C.F.R. S 2.760 (c) (1) . . . . . . . . . . . . . . . . . 21 10 C.F.R. S 50.47 . . . . . . . . . . . . . . . . . . . . 1, 4 , 12, 17, 24, 29, 35, 42 10 C.F.P S 50.47 (a) . . . . . . . . . . . , . . . . . . . 4, 8, 43 10 S EC.47(b) . . . . . . . . . . . . . . . . . . . 4, 8, 11-14, 16, 18, 41 10 C.F.R. S 50.47 (a)-(b) . . . . . . . . . . . . . . . . . 5 l
13 C.E.R. S 50.47 (b) (4) . . . . . . . . . . . . . . . . . 33 10 C.F.R. 5 50.47 (b) (7) . . . . . . . . . . . . . . . . . 29 10 C.F.R. S 50.47 (c) (1) . . . . . . . . . . . . . . . . . 5, 8, 13-17, 29, 41-43 10 C.F.R. Part 50, Appendix F, . . . . . . . . . . . . . . 4 l 10 C.F.R. Part 51 . . . . . . . . . . . . . . . . . . . . 2, 6, 8, 56, 63 1
10 C.F.R. S 51. 5 (a) . . . . . . . . . . . . . . . . . . . 59 10 C.F.R. S 51.5 (b) . . . . . . . . . . . . . . . . . . . 57-59 l 10 C.F.R. S 51.5 (b) (3) . . . . . . . . . . . . . . . . . . 6, 58, 59 10 C.F.R. S 51.5 (c) (1) . . . . . . . . . . . . . . . . . . 57-58
! 40 C.F.R. 5 1500 . . . . . . . . . . . . . . . . . . . . . 2 l
40 C.F.R. 5 1500.1 (c) . . . . . . . . . . . . . . . . . . 63 l 40 C.F.R. S 1590.3 . . . . . . . . . . .. . . . . . . . 61 40 C.F.F.. S .08. 9 (b) . . . . . . . . . . . . . . . . . . 61 l
l W
9 %
Page Misdellaneous Citations "Further Commission Guidance for Power Reactor Operating Licenses," 45 Fed. Reg. 85,236 (1980) . . . . . 6, 9, 44-49 45 Fed. Reg. 55,403 (1980) . . . . . . . . . . . . . . . . . 35 CLI-81-5, CCH Nuc. Reg. Rptr. 1 30,581 (1981) . . . . . . . . 6, 10, 44-49 SECY-81-188, April 22, 1981 . . . . . . . . . . . . . . . . . 12-18 NRC Meeting Transcript of August 27, 1981 . . . . . . . . . . 50 NUREG-0737, " Clarification of TMI Action Plan Requirements" 6, 16, 44 NUREG-0654, FEMA-Rep-1, Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" 33 1
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docker Nas. 50-275 0.L.
) 50-323 0.L.
(Diablo Canyon Nuclear Power Plant, )
Unit Nos. 1 and 2) )
)
BRIEF OF GOVERNOR EDMUND G. BROWN JR.
ON APPEAL OF THE LICENSING BOARD PARTIAL INITIAL DECISION OF JULY 17, 1981 I. Introduction On August 3, 1981, Governor Brown filed exceptions to the Licensing Board's July 17, 1981 Partial Initial Decision ("PID")
w' ich authorized fuel loading and low power testing of Diablo i
Canyon. The Governor submits this Brief in support of those exceptions and urges reversal of the PID because: (1) emergency planning and preparedness at Diablo Canyon do not satisfy the requirements of 10 C.F.R. S 50.47; (2) the Licensing Board erroneously denied the Governor the opportunity to litigate relevent contentions and subjects concerning TMI-related ,
requirements of the Commission; (3) the Licensing Board did not exercise its decisionmaking responsibilities in accordance with law, thereby failing to confront the evidence and rule on critical arguments of the Governor and failing to make findings in accordance with the facts of record; and (4) the NRC Staff f ailed to prepare an environmental impact appraisal of PG&E's proposed low power testing program, thereby violating the
. i , . -
requirements of 10 C.F.R. Part 51, the National Environmental Policy Act, 42 U.S.C. S 4321, et,. seq., and the Regulations of the Council on Environmental Quality, 40 C.F.R. S 1500, e t. . seg.
The underlying cause of these fatal errors was the Licensing Board's action, urged jointly by PG&E and the Staff, to rush this proceeding prematurely to hearing and judgment. At the outset, the Governor requested dismissal of PG&E's low power Motion because of PG&E's failure to comply with the NRC's regulations pertaining to requirements for motions.1/ However, at the urging of PG&E and the Staff, the Board ordered contentions to be filea, although it noted that "the PG&E motion could have been more comprehensive . . . ."2/
The PG&E Motion was not only less comprehensive than required by law, it was also premature. Indeed, at the time PG&E filed its Motion, San Luis Obispo County, which has the lead role in offsite emergency response, had not even commenced work on an emergency response plan designed to comply with the NRC's
! upgraded emergency preparedness requirements. The only County plans then in existence were the inoperative 1976 " paper" plans that the County had discarded after TMI. PG&E and the Staff knew this fact, having been so informed at an October 21, 1980 meeting with County officials. The following testimony of Mr. Jeffrey Jorgensen, a member of the County Board of Supervisors, makes this clear.
1/ See 10 C.F.R. SS 2.730(b), 2.732.
2/ Licensing Board Order Relative to PG&E's Motions for Low Power Testing, October 2, 1980, p. 1.
There was a meeting in San Luis Obispo with
. representatives from FEMA, NRC, PG&E, the county, myself, Supervisor Kupper from the county, the emergency services coordinator where there was a discussion of where do we go from here with respect to emergency plans.
At that time, we made it very clear, myself and also Supervisor Kupper -- very clear to those people represented that we had no actual preparedness. That the 1976 plans were paper plans only. That the county was not relying on those plans as the bases for their emergency planning ef forts and then i vent into rather lengthy detail about the nature of the planning e f fort that we we re involved in.3,/
Notwithstanding these facts, the Licensing Board deferred to the insistence of PG&E and the Staff that the hearing be held prematurely.
Finally, the Licensing Board deferred (1) to the Staf f's refusal to prepare the requisite environmental analysis, (2) to PG&E's failure to perform any ar.alysis of the complicating effects of an earthquake of any proportion on emergency preparedness and response, and (3) to urgings of the Staff and PG&E to bar litigation of critical, TMI-related issues. Indeed, when the Governor sought to contest factual assertions made by PG&E in its low power Motion, even thes: genuine factual disputes were not permitted by the Board. With such a deficient basis for proceeding to hearing on PG&E's Motion, it was inevitable, ,
(
0 therefore, (1) that the evidence of record would prove conclusively that PG&E's requested licenses to load fuel and operate at low power should be denied and (2) that PG&E would not be able to satisfy its burden of proof.
3/ Tr.10,920 (Jorgensen; (emphasis supplied).
The following is a brief summary of the major errors of the Licensing Board, each of which is later discussed at length:
- 1. Emergency -Preparedness. The Commission's energency preparedness regulations, 10 C.F.R. S 50.47 and Appendix E to i
Part 50, require that there be demonstrated onsite and offsite capability to respond effectively to a serious radiological eme rgency . Indeed, Section 50.47(a) (1) precludes issuance of any f ;
, operating license unless the NRC finds that the state of onsite and offsite preparedness provides reasonable assurance that
" adequate protective measures can and will be taken in the event of a radiological emergency."
The evidence developed at the Diablo Canyon low power hearing shows conclusively that no integrated onsite and offsite response capability exists. Thus, evergency planning and preparedness for fuel loading and low power operation of Diablo .
Canyon does not satisfy the NRC's regulations for the following <
reasons:
, (a) San Luis Obispo County (the " County") does not have an implemented emergency response plan, and thus the County has no capability to respond to a radiological j
emergency in the manner required by Section 50.47.
l l (b) The combined onsite and offsite emergency response l capabilities at Diablo Canyon do not satisfy even one 1 of the 16 Planning Standards of 10 C.P.R. S 50.47(b).
s *
(c) There is no demonstrated means of taking any protective l
i actions, including notification or evacuation, in the rugged Montana de Oro State Park located less than two miler . rom Diablo Canyon.
- (d) Neither PG&E nor the Staff gave consideration to the potentially complicating effects of an earthquake of any proportion on emergency preparedness and response during low power operation, despite the obvious fact, admitted on the record even by PG&E, that such an earthquake certainly would complicate emergency response.
' w
(e) While the " risk" during low power operation may be less than the cisk during full power operation, effective emergency preparedness still is required at least within the six mile low population zone ("LPZ"). The Licensing Board found the 6-mile LPZ to be the proper zone for emergency preparedness, and even PG&E recommended the LPZ. The failure of the County to have any implemented emergency response capability at all --
either inside or outside the LPZ -- and the other documented deficiencies in emergency preparedness at Diablo Canyon preclude a finding of the requisite preparedness within the LPZ or anywhere else in che County.
The Licensing Board effectively ignored the foregoing facts, each of which the Governor placed clearly before the Board.
Therefore, the Board violated the law:
(1) The Board failed to apply the NRC's own regulations, particularly 10 C.F.R. SS 50.47(a)-(b) and 50.47 (c)(1), thus violating the Administrative Procedure Act
("APA"), 5 U.S.C. S 551, et seq., the Atomic Energy Act, 42 U.S.C. 2011, et seq., and NRC case law.
(2) The Board failed to rule in conformity with the evidence of record, thus violating the evidentiary standards applicable to initial licensing decisions under the APA, the Atomic Energy Act, j udicial precedent, and NRC case law.
(3) The Board failed to conf ront -- indeed, in many instances, even to acknowledge -- the evidence and arguments presented by the Governor and the Joint Intervenors, thus violating t:1e APA, the Atomic Energy Act, judicial precedent, und ARC case law.
(4) The Board failed to provide foundations and reasons for its findings and conclusions, thus violating the APA, the Atomic Energy Act, judicial precedent, and NRC case law.
- 2. TMI-Related Contentions. The Licensing Board denied the Governor and Joint Intervenors the right to a hearing on several critical TMI-related contentions. These contentions focussed on n b n
1 l
l i
the same safety concerns as the items in NUREG-0737..d/ Under the Commission's explicit guidance -- i.e. , the Revised Statement of Policy, dated December 18, 198al/ and CLI-81-5, dated April 1, 198L5/ -- such contentions clearly were proper and admissible.
! Since the Licensing Board was required to follow the Commission's guidence on the admissibility of contentions but did not, the l
Licensing Board must be reversed.
- 3. _
Environmental Impact Appraisal. The Governor demon-
- strated to the Licensing Board that the Staff, under the I
f regulations in Part 51, is requircd to prepare an environmental analysis of PG&E's proposed low >ower testing program before the NRC renders its licensing decision. The existence of the full l power environmental impact statement ("EIS") in this proceeding is factually and legally irrelevant to that Staff i responsibility . Indeed, Section 51.5(b) (3) requires specifically l that for low power operation the Staff must prepare an EIS or I
minimally an environmental impact appraisal ("EIA"), separate and distinct from the required full power EIS.
The Governor submits that an EIA, if prepared in this proceeding, would demonstrate: (1) thdt there is no need for PG&E to conduct its low power testing program in advance of issuance of a full power license, if ultimately granted; (2) that the costs of PG&E's proposed premature low power testing, both 4/ " Clarification of TMI Action Plan Requirements," November, 1980.
5/ 45 Fed. Reg. 85,236 (1980).
6/ CCH Nuc. Reg. Rptr. 1 30,581 (1981).
6- , _ _
o , .
. environmental and economic costs, substantially outweigh the benefits of such testing; and (3) that the serious potential impacts resulting from PG&E's proposed low power testing program require consideration of alternatives that would create fewer environmental costs (including the obvious alternative of merely postponing the decision on low power testing until the seismic, security, and full power issues are resolved with finality by the Commissioners). No persuasiv's factual or legal arguments to the contrary have been made by the Staf f or PG&E. Indeed, the Licensing Board provided no cost-benefit analysis or other reasoning that would cast doubt upon the Governor's position. If any conclusions contrary to that position could be drawn, the proper place for the underlying analysis would have to be an EIA, which was intended by the regulations to cover precisely the type of situation presented herein. Accordingly, in not applying the regulations and requiring, at the very minimum, the necessary j EIA, the Licensing Board violated the NRC's regulations.
l The overriding question presented by the foregoing errors of the Licensing Board is whether the rule of law and the NRC mandate to protect public health and safety will be given their proper place in this proceeding. The Supreme Court's guidance of 20 years earlier is still controlling:
(T]he public safety is the firs.t, last, and a permanent consideration in any decision on the issuance of a construction pennit or a license to operate a nuclear facility.1/
1/ Power Reactor Co. v. Electricians, 3 67 U.S. 396, 402 (1961);
accord, In re Power Reactor Development Co. , 1 A.E.C. 128, l 136 (1959); Consumers Power Co. (Midland Plant, Units 1 and l (Continued) P
' - = - - , - = y- v--- . , . - , ,g__,_ _ , . , _ , . _
'The Licensing Board failed to respect this mandate. Ac cordingly ,
this Appeal Board must reverse the PID$[ and:
(1) Require that PG&E take the actions necessary to bring emergency preparedness at Diablo Canyon into conformance with the emergency planning and preparedness regulations of Sections 50.47(a) and (b),
o r, in the alternative, that PG&E take the actions necessary to " demonstrate to the satisfaction of the Commission" the basis for exemptions, under 10 C.F.R.
S 50.47(c)(1), from the Commission's emergency planning and preparedness regulations; (2) Require that the Licensing Board not proceed to authorize issuance of licenses for fuel loading and low power operation of Diablo Canyon until offsite
~
emergency plans and preparedness are implemented by the County and by officials with jurisdiction over Montana de Oro State Park; (3) Require that the Licensing Board provide the Governor and Joint Intervenors an opportunity to be heard on the TMI-related contentions which the Board erroneously rejected; and I
l (4) Raquire that the Staff perform the environmental analysis of PG&E's proposed low power test program, as mandated by Part 51 of the NRC's regulations.
The Governor submits that any other decision by this Appeal Board would be contrary to the APA, the Atomic Energy Act, judicial i precedent, and NRC case law.
1 II. Description of the Low Power Proceeding The Diablo Canyon low power test proceeding commenced in j July 1980, when PG&E moved the Licensing Board to issue operating l
2), ALAB-315, CCH Nuc. Reg. Rptr. 1 30,050 (1976).
1 This Board could remand the case to the Licensing Board or, 8/ as was done when this Board vacated the Licensing Board's l decision in the security proceeding, this Board could sit as the trial board in the de novo proceeding.
_ a f <,
O g licenses for fuel loading and low power testing 9./ In accordance with the Board's directive,10/ the Joint Intervenors and Governor Brown filed Contentions and Subjects, respectively, which were considered at a Prehearing Conference on January 28-29, 1981.
The Governor also moved the Board to stay the proceeding because the Staff had failed to prepare the environmental analysis of PG&E's proposed low power testing program as required by Part 51 of the Regulations.11/
The Licensing Board ruled on the Governor's stay motion and the Contentions and Subjects in its February 13, 1981, Prehearing Conference Order. The Board denied the Governor's stay motion, ruling that no EIA was necessary for low power operation because a full power EIS had been prepared.12/ The Board also rejected most Contentions and Subjects, based primarily on the Board's interpretation of the Commission's December 18, 1980, Revised Statement of Policy.13/ The Board cdmi3ted only four Contentions
! and Subjects: emergency preparedness; safety, block, and relief l valve qualification; water level indicators; and pressurizer l
l 9/ Motion of Pacific Gas and Electric Company for Licenses for i Fuel Loading and Low Power Testing, July 14, 1980.
10/ Licensing Board Order Relative to PG&E's Motions for Low Power Testing, October 2, 1980.
11/ See Motion to Stay Proceeding, December 8, 1980.
12/ Prehearing Conference Order, pp. 3-7.
13/ "Further Commission Guidance for Power Reactor Operating Licenses," 45 Fed. Reg. 85,236 (1980).
. i heaters.14/ All four participants were dissatisfied for various reasons with the Board's Order and, accordingly, requested certification to the Commission.
On April 1, 1981, the Commission declined to certify the parties' arguments. In stead , the Commission issued CLI-81-5, which provided additional guidance for determining the admissibility of TMI-related contentions. While the Licensing Board had required conten-ions to be "directly related to NUREG-0737 requirements,"15/ the Commissioners instead stated that contentions were acceptable if they " focus [ed] on the same safety concern that formed the basis for the NUREG
" 16/ Notwithstanding this clear Commission
, requirement . . .
guidance, however, the Licensing Board refused to alter its February 13 Order and, thus, precluded the parties from litigating the contentions and subj cts that were now indispunably admissible. The Board also granted aummary l
i disposition of the water level and pressurizer heater contentions.12/
A hearing was held on emergency preparedness and the valve l issue in San Luis Obispo, California, on May 19-22, 1981.
Subsequent to the hearing, but before the Board issued its PID, j
the Governor moved to reopen the proceeding for the purpose of l
l 14/ Prehearing Conference Order, pp. 18-19, 22-23, 28-29, 31, l and 35-36.
1 15/ Prehearing Conference Order, p. 13.
l 16/ CCH Nuc. Reg. Rptr. 1 30,581 (1981).
l 17/ Licensing Board Memorandum and Order, April 30, 1981.
l _ . - - - - .- - . _ _ _ _ _ . _. _ ._ __
correcting Staff misstatements of fact regarding the use of helicopters with bullhorns to notify persons in the nearby Montana de Oro State Park if there were a radiological emergency at Diablo Canyon.18/ The Board did not even acknowledge receipt of the Governor's pending Motion in its July 17 FID.19/
III. Emergency Preparedness at Diablo Canyon Does Not Satisfy the Requirements of Secti,on 50.47.
All parties to this proceeding, and indeed the Licensing Board itssif, recognize that emergency planning and preparedness at and around Diablo Canyon do not satisfy the 16 Planning i Standards of 10 C.F.R. S 50.47'b). Thus, the Board acknowledged deficiencies in such planning and preparedness,20/ and PG&E admitted such deficiencies in its written responses to pre-trial discovery requests: 21/ Indeed, the Joint Intervenors demonstrated, point-by-point in their Brief to the Licensing Board, that onsite and offsite preparedness does not fully meet even one of the 16 Planning Standards.22/ Finally, a member of l the Board of Supervisors of San Luis Obispo County testified, without being contradicted by any other witness or evidence, that l
18/ Motion of Governor Edmund G. Brown Jr. to Reopen the Record to Correct Staff Misstatements, July 15, 1981.
i 19/- On August 27, 1981, the Licensing Board issued a Memorandum ruling that it no longer had jurisdiction to rule on the Governor's Motion because of issuance of the PID.
20/ PID, p. 18, T 41; p. 37, T 90.
21/ See PG&E Interrogatory Responses, JointTr. Intervenors' Exhibit 10,619.
111, which was admitted into evidence.
22/ Joint Intervenors' Proposed Findings of Fact and Conclusions of Law, June 16, 1981, pp. 14-31.
11 ~
. i (1) the County does not have implemented emergency plans, and (2) the County previously " shelved" the inadequate plans which were developed in 1976 prior to TMI and were rendered obsolete by that accident.21/ Neverthc.'ess, the Licensing Board ruled that Gnsite and offsite preparedness at Diablo Canyon are adequate.
The following discussion demonstrates that the Licensing Board erred. First, the Board relieved and excmpted PG&E, through erroneous interpretation of SECY-81-188, from meeting PG&E's evidentiary burden of showing that any exceptions under Section 50.47 are justified. Second, the Board failed to confront the overwhelming evidence that adequate emergency preparedness does not exist for fuel loading and low power testing of Diablo Canyon.
A. The Licensing Board Erred in Pelying on SECY-81-188 to Relieve PG&E of its Mandatory Evidentiary Burden Under Section 50.47(c) (1) .
The NRC's emergency preparedness regulations set forth 16 Planning Standards that must be met by applicants for operating licenses:24/ Given the numerous deficiencies in emergency preparedness at Diablo Canyon, however, PG&E chose to seek exemptions from these Planning Standards by relying on the 23/ Tr. 10,917-20 (Jorgensen) ; Prepared Testimony of Je ffrey Jorgensen, pp. 1-2, Tr. af ter p. 10,901.
24/ See 10 C.F.R. S 50.47(b).
provisions of Section 50.47(c) (1) ; 25/ Section 50.47(c)(1) provides:
Failure to meet the standards set forth in paragraph (b) of this subsection may result in the Commission declining to issue an Operating License; however, the applicant will have an opportunity to demonstrate to the satisf action of the Commission that deficiencies in the plans ar:e not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly or that there are other compelling reasons to permit plant operation.26/
The Licensing Board, at the outset of the low power hearing, recognized the binding force of the standards in Section 50.47(b) and correctly enunciated the rule for consideration of any exemptions that might be requested by PG&E under Section 50.47(c)(1):
We' re guided by the Regulations, as you gentlemen j know: Part 50-57 [ sic, 50-47], Appendix E to Eart i
50 and the implementing document, NUREG-0654.27/
l i if there are any of the sixteen points listed in
! NUREG-0654 for which an exemption is sought under 50-47C, we would like to know the reasons you have 1
25/ PG&E thus stated to the Licensing Board: "PG&E relies on the provisions of 10 C.F.R. 50.47(c)(1) . . . to support its l application for fuel load and low power testing l
O.uthorization." PG&E Proposed Findings of Fact and Conclusions of Law, June 1, 1981, p. 8. .
10 C.F.R. S 50.47(c)(1) (emphasis supplied). PG&P did not 26/
attempt to deconstrate any " interim compensating actions" or l " compelling reasons" for allowing Diablo Canyon to operate despite failure to satisfy the Section 50.47(b) standards.
Rather, PG&E's sole position was that the admitted deficiencies in onsite and offsite preparedness were "not significant." See PG&E Proposed Findings of Fact and Conclusions of Law, June 1, 1981, pp. 16-18, 22/ rr. 10,578 (Bright, J.).
13 -
- i for believing that one or another of those points
- do not apply for low power testings. 28/
Under Section 50.47(c)(1) and NRC case law,29/ PG&E has the burden of proving by a preponderance of the evidence that each emergency preparedness deficiency, when measured against the Section 50.47(b) standards, was "not significant." However, PG&E did not carry its burden; indeed, PG&E did not even attempt to demonstrate on the required standard-by-standard basis why full compliance with the Section 50.47(b) standards was not necessary . 30/ Instead, relying upon the Staf f paper SECY 188,31/ dated April 22, 1981, PG&E argued as follows:
In the context of low power testing, the Commission reaffirmed [in the SECY paper] its previous position in NUREG-0694 that it is unnecessary to require extensive offsite emergency capability because of the low potential for significant offsite releases. Accordingly, it is unnecessary for PG&E to seek exemptions from the planning standards. Rather all that is required is for PG&E to demonstrate reasonable compliance 28/ Tr. 10,578-79 (Kline, J.) (emphasis supplied).
29/ See, e.g., Consolidated Edison Co. of New York (Indian Point Nuclear Generating Station, Units 1, 2 and 3 ) , CCH Nuc. Re g .
Rptr. 1 30,133 (NRC 1977); Duke Power Co. (Catawba Nuclear Stations, Units 1 and 2), ALAB-355, CCH Nuc. Re g . Rp tr.
1 30,116 (1976); Consumers Power Ca. (Midland Plant, Units 1 and 2), ALAB-315, CCH Nuc. Reg. Rptr. 1 30,050 (1976).
30/ PG&E did attempt, through testimony regarding the " risk" of low power operation, to demonstrate that preparedness beyond the LPZ, a zone of six miles around DiaFl' Canyon, was unnecessary. E.g., Testimony of Dr. Brunot, after Tr. p.
10,595. However, the PGEE witnesses agreed that planning and preparedness within the LPZ was necessary. See Tr.
10,856-57 (Brunot): 10,838 (Shiffer). PG&E did not attempt to demonstrate that compliance with the Section 50.47(b) standards was unnecessary within the LPZ.
31/ A copy of SECY-81-188 is attached as Exhibit A for the convenience of the Board.
I e i s
with those standards which are reasonably related
- to low power testing.32/
Thus, PG&E argued that the SECT paper changed Section 50.47(c)(1) i
' and eliminated PG&E's burden of demonstrating that exemptions from the 16 Planning Standards were justified.
The Licensing Board agreed with PG&E. Specifically, the j t
l i Board held: ;
In the light of this new policy guidance [the 1 SECY] the Board concludes that a point by point l
l 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), is no longer needed. Indeed the 1 l
conclusion is now inescapable that the Commission l
clearly intends that full compliance with the 16 )
planning star 3ards in NUREG-0654 and the !
provisions or Appendix E are not required for fuel !
loading and low power testing at Diablo Canyon cnd ,
the Board so finds.33/ l Based upon the foregoing interpretation of SECY-81-188 and Section 50.47(c) (1), the Board declared that Diablo Canyon l emergency preparedness is adequate for low power operation.
Indeed, without even discussing the numerous onsite and of fsite 32/ PG&E Proposed Findings of Fact and Conclusions of Law, June 1, 1981, p. 33 (emphasis supplied). The SECY was brought to the attention of the Licensing Board and the parties in a curious manner. Although it was " approved" by the NRC on April 22, 1981, Staff Counsel did not advise'the Board or other participants of the SECY until May 21, 1981, the third day of the hearing and well af ter the Board had stated that Section 50.47 provided the applicable legal standard. See Tr. 10,951. One would think that if- this paper were l actually relevant and useful, Staff Counsel would have wanted, and indeed would have been obligated, to advise participants and thq Board before the third day of the l hearing. See Consolidated Edison Co. of New York (Indian Point Station, Units 1, 2 and 3), CCH Nuc. Reg. Rptr.
1 30,133 "JRC 19 77 ) .
33/ PID, p. 23, 1 56.
15 -
O e deficiencies in emergency preparedness that were documented in
. detail on the record, and without applying the 16 Planning Standards, the Board concluded that the " deficiencies in the PG&E, local and state plans are not significant for operation of Diablo Canyon at power levels not to exceed 5 percent of full power."34/ The Board provided neither foundation nor rationale for its conclusory ruling. Such a ruling certainly cannot be sustaine ' by SECY-81-188 or by any provision of the NRC's re-ulations.
In fact, the SECY paper merely confirms that the flexibility of Section 50.47(c)(1) is available in low power proceedings to relieve an appl,icant, if the requisite evidentiary showing is made by the applicant, from compliance with all of the emergency planning requirements of Section 56.47(b) . Thus, the SECY paper makes clear that NUREG-0737 does not preclude use of Section 50.47(c)(1) in low power proceedings. The SECY paper, accordingly, states:
A literal interpretation of the table in NUREG-0737. .
. could lead to a conclusion that the Commission intended to disregard the flexible, case-by-case approach expressly provided for in SS 50.47(c) and 50.57(c), and to require that licensees comply with every facet of emergency planning contained in S 50.47 as prerequisite to the issuance of every operating license, even those where.the activity sougtt to be authorized is fuel loading or low power test.ing. The staf f did not intend, nor does it believe that the Commission intended, to interpret the table appearing in NUREG-0737 with respect to the effectiveness of 10 C.F.R. $50.47 so literally as to eliminate the flexibility provided by 10 C.F.R. SS 50.47(c) and 50.57(c). Consequently, the staff proposes that the Commission approve the suggested changes to the table 34/ PID, p. 51, 1 133 (emphasis supplied).
i o ,
in NUREG-0737 . . . to clarify the differences between the emergency planning requirements contained in 10 C.F.R. S 50.47 that must be met prior to full power authorizations versus those prerequisite for operatiag license authorizations only for fuel loading or low power testing.35/
There is no basis to suggest that the SECY paper even purports to change, let alone changes, Section 50.47 or the requirement in Section 50.47(c)(1) that PG&E " demonstrate to the satisfaction of the Commission that deficiencies in the plans are I
not significant . . . ."36/ The SECY paper simply does not say that. Moreover, as a legal matter, the SECY clearly could not make such a change even if it sought to do so. The reason, of course, is that Section 50.47 is a duly adopted regulation that can be changed by the Commission only pursuant to the notice and comment requirements of the Administrative Procedure Act and the
! Atomic Energy Act that govern ruleraking. Regulations cannot be changed or promulgated by a staff paper, even if the Commission approves that paper. In short, the SECY paper merely reiterated the flexibility inherent in Section 50.47(c)(1): if PG&E seeks an exemption from the NRC's emergency planning and preparedness requirements, PG&E must demonstate why such relief is warranted.
l The Board's interpretation of SECY-81-188 constitutes reversible error. Section 50.47(c) (1) sets forth fixed standards for the grant of an exemption: there is a burden on PG&E to
(
demonstrate by a preponderance of evidence that an exempticn is l
warranted; and there is a mandate for the Licensing Board to deny 35/ SECY-81-188, p. 2 (emphasis supplied).
36/ 10 C.F.R. S 50.47(c) (1) .
o .
PG&E's requested licenses unless the le'.ter and spirit of that
' regulation are met _37/
B. The Documented Deficiencies in Emergency Preparedness At Diablo Canyon Preclude Issuance of Licenses For Fuel Loading and Low Power Operation.
The Joint Intervenors, in their Brief of Proposed Findings to the Licensing Board, proved with chapter and verse that the combined onsite and offsite emergency plans and preparedness for Diablo Canyon do not comply with even one of the 16 Planning Standards of 10 C.F.R. S 50.47(b)_38/ The Licensing Board, except for a passing reference to the lack of a fast alert system and a public information program,39/ basically ignored every other instance of non-compliance and failed to analyze the deficiencies against the 16 Planning Standards of Secticn 1
50.47(b). Still, without such review, the Board concluded:
37/ See Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-138 (1973) (" reactors may not be licensed unless they comply with all applicable standards").
, 3Jh/ Joint Intervenors' Proposed Findings of Fact and Conclusions l of Law, June 16, 1981, pp. 14-31. The majority of these deficiencies were admitted by both PG&E and the Staf f. See Joint Int. Ex. 111 (PGEE admitting to deficiencies); Tr.
( 10,697 (Staff stipulating that PG&E does not comply with emergency planning criteria of NUREG-0654).
39/ PID, p. 37, 11 90-91.
The deficiencies in the PG&E, local and state plans are not significant for operation of Diablo Canyon at power levels not to exceed 5 percent of full power.40/
Settled law requires that t's7 Licensing Board do more than simply make conclusory statements. Indeed, the Board must
" confront the facts" and "make specific determinations on the questions" raised during the proceeding. It must " articulate in reasonable detail the basis" for those deterninations.41/ In >
characterizing the duty of the Licensing Board, the Appeal Board has stated:
[W]e deem it to be the general duty of licensing boards to insure that initial decisions and mis-cellaneous memoranda and orders contain a suffi-cient exposition of any ruling on a contested issue of law or fact to enable the parties, and this Board in its own review, readily to apprehend the foundation of the ruling. Compliance with this general duty is not a mere procedural nicety but is a necessity if we are to carry out efficiently our appellate review
- responsibilities.42/
The courts have consistently imposed the same requirement.
l For example, in Greater Boston Televiaion Corp. v. FCC, t'ae court stated:
The fuction of the court is to assure that the agency has given reasoned consideration to all the material facts and issues. This calls for insistence that the agency articulate with reasonable clarity its reasons for decision, and identify the significance of the l
crucial facts, a course that tends to assure that the 40/ PID, p. 51, 5 133.
41/ Public Service Co. of New Hampshire (Seabrook Stacion, Units 1 and 2), ALAB-42 2, CCH Nuc. Reg. Rptr. 1 30,216 (1977);
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 A.E.C. 179 (1973).
42/ Northern States Power Co. , 6 A.E.C. 179, n. 1 (emphasis supplied).
agency's policies ef fectuate general standards applied without unreasonable discrimination.43/
The District of Colulmbia Circuit recently reiterated its insistence on the need for complete and clearly explained decisions in Harborlite Corp. v. ICC_44/ The court st ted that an administrative opinion "must be suf ficient to reflect a cons.dered response to the evidence and contentions of the losing party and to allow for a thoughtful judicial review if one is sought."45/ The opinion distinguished between the lesser " degree of precision" required for an agency's findings and reasons when it is performing a " legislative" function as opposed to an
" adjudicative" one. Thus, the court stated:
[W]e deal with a classic case of agency adjudication, a case that involves decisionmaking concerning specific persons, based on a determination of particular facts and the application of general principles to those facts. In this context, we expect the parties to
- present specific evidence and closely reasoned arguments, and we demand that the d'ecisionmaker's opinion indicate an appropriate consideration of the evidence and arguments presented.46/
43/ 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denled, 403 U.S.
! 923 (1971) (emphasis supplied). See also SEC v. Chenery l
Co rp . , 318 U.S. 80, 94 (1943); WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir.1969); Wingo v. Washington, 395 F.2d 633 (D.C. Cir. 1968). -
44/ 613 F.2d 1088 (D.C. Cir. 1979).
45/ 61~ F.2d at 1092; see Baltimore & Ohio R. Co. v. Aberdeen &
Rt.:kfish R. Co., 393 U.S. 87, 91-92 (1968); Burlington Truck T.de, Inc. v. United States, 371 U.S. 156, 167-68 (1962);
S.L.R.B. v. Brown, 380 U.S. 278, 291-92 (1965); National l Bioadcasting Co. v. FCC, 516 F.2d 1101, 1122 (D.C. Cir.
1974).
46/ 613 F.2d at 1093, n. 11 (emphasis supplied).
l 20 - __ , ,__
~. . - .
These regulatory and judicial decisions rest fundamentally on due process, fairness, and statutory requirements. Indeed, the Administrative Procedure Act, which is specifical'.y adopted by Section 181 of the Atomic Energy Act,42/ provides that licensing decisions must include " findings and conclusions, and the reasons or basis therefore, on all material issues of fact, law or discretion presented on the record."48/ The NRC's rules parallel the APA and require " findings, conclusions and rulings, with tne reasons or basis for them, on all material issues of fact, law, or discretion presented on the record."49/
The Licensing Board did violence to the rudiments of fair administrative decisionmaking. Indeed, on each of the following critical issues the Board chose simply to make conclusory findings or simply to ignore the issue and argument entirely, rather than to confront the evidence and rule for the Governor.50/
47/ 42 U.S.C. S 2231.
48/ 5 U.S.C. S 557(c)(3)(A).
49/ 10 C.F.R. S 2.760(c)(1) (emphasis supplied).
50/ The Licensing Board's failure to confront the evidence cannot be excused on the basis of a " lower risk" of low power operation. All parties agree that the risk is lower, but that risk has never been quantified with meaningful precision. As a result, the Board determined that a six mile emergency planning zone was appropriate for low power operation. PID, p. 51, 1 131. Accordingly, even assuming six miles to be the correct emergency preparedness zone, the Board was required to confront the evidence of lack of preparedness within that six mile zone. As demonstrated hereafter, however, the Board did not even do that.
(1) There is No County Emergency Preparedness.
Offsite emergency preparedness at Diablo Canyon is the primary responsibility of San Luis Obispo County 51/ In December 1976, the County adopted two plans -- a County Emergency Response Plan and a County Emergency Evacuatio. Plan -- designed, if and when implemented, to afford such preparedness. However, these plans were never implemented by the County. They were " shelved" by the County following the TMI accident and do not provide any I
basis for County emergency preparedness today. Accordingly, Mr.
Jef frey Jorgensen, a member of the San Luis Obispo County Board o f Supervisors, testified as to the status and nature of these inoperative plans:
[T] hose plans remain in effect in the sense that they have never been formally rescinded by the Board of Supervisors. However, since the Three Mile Island accident, there hr.s been no action to implement those plans in any way whatsoever. They are in essence i nothing more than paper plans. Since the Three Mile Island accident, the Plans have been in essence shelved and we have embarked upon an entirely new planning process for emergency response in San Luis Obispo County.
[A] f ter Three Mile Island, it became extremely clear i that the county's plans would have to be substantially changed and that aggressive action was going to have to be taken in the future to make sure that there was actual preparedness because of what we learned from Three Mile Island. Because the county had never put any effort into implementing the 1976 plan, because we had limiteo county resources and because new requirements were going to come' down from the state and i
federal authorities on what should be in those plans, there was a -- the county took the position that they should wait and see what the new regulations would be i rather than simply patch up a plan that was obviously l
51/ Tr. 10,746-47 (Shiffer); PG&E Emergency Response Plan, pp. 5-7.
L
_ _ __ _ . . -_ _ __. ___. _ _ - _ _ _ - _ _ _ _ . _ _ _ . . - . - - _ . ~
i e !
inadequate. That we would try to develop an entirely I '
new plan once we found out what the new state and federal' requirements would be. -
And that's what's happened. Since the Three Mile Island accident there has been no effort put into the i
! '76 plans to upgrade them and at this point, no one in i the county to my knowledge is operating under those l plans as an emergency response plan for San Luis Obispo County.
- I think that the action that we took to shelve the 1976 i plans was a very conscious one taken by all the parties involved. There was no objection to that action. It ;
sshmed like the only rational intelligent thing to do under the circumstances was to wait and reassess the situation and try to develop a new plan under the new i regulations.
I might add that during my time on the Board, since March 15 of 1980, this position has been reasserted before the Board of Supervisors in recommendations from our county administrative officer and emergency j services coordinator on a number of occasions. That we should wait and have a clear picture of the regulations before we committed additional manpower and equipment.52/
Mr. Jorgensen's testimony was not refuted or contradicted5 1/
by any other witness. Simply stated, the fact is that there is no County emergency plan or preparedness for low power testing of Diablo Canyon _54/ In the face of this evidence, the Board could 52/ Tr. 10,917-19 (Jorgensen). , ,
53/ There was testimony concerning a so-called " Sheriff's plan." That plan is addressed in the next section of this Brief. ,
54/ As noted by Mr. Jorgensen, the County has commenced a new emergency preparedness effort designed to result in plans and preparedness in compliance with NRC and State regulations. However, the Board's PID rests solely on alleged preparedness under the County's inoperative 1976 plans. This Appeal Board, of course, is confined to that evidence of record in reviewing the Licensing Board's PID.
?
not, consistent with its obligations under Section 50.47, approve issuance of a license to ,PG&E.
The Licensing Board, however, chose to avoid confronting the impact of Mr. Jorgensen's testimony. The Board thus stated:
Mr. Jorgensen's testimony, however, does not specifically address defects in planning relating to low power testing nor does it take into account testimony about the Sheriff's plan, the justification for the designation of reduced planning zones or the overall reduced risks associated with low-power testing.55/
Even conceding the Board's statment to be correct, the
- critical fact is not what Mr. Jorgensen did not say, but what he d id say . Mr. Jorgenson testified that there is no implemented County emergency plan; indeed, no County emergency preparedness. This means there is no compliance with Section 50.47; and, no such compliance means that PG&E cannot be issued a low power operating license. The Board simply skirted this central fact. Had the Board, instead, confronted the evidence, it would have been bound to rule for the Governor.
l Similarly, the Board's attempted justifications for ignoring Mr. Jorgensen's testimony provide no rational basis for the i
i Board's ruling. First, Mr. Jorgensen's test,imony covered the absence of emergency preparedness throughout'the entire County;56/ Thus, his testimony necessarily addressed the absence 55/ PID, pp. 48-49, 1 124.
56/ Mr. Jorgensen's direct testimony (in af fidavit form) stated in part:
Although the County has current emergency plans on I
paper, those plans would not provide substantial protection to County residents or the general public in (Continued)
L
. o of preparedness in the LPZ, which is part of the County. In reality, therefore, Mr. Jorgensen testified not only that there is no emergency preparedness for the LPZ (which is the zone that the Board found to be the relevant planning area for low power ope ra tion) , but that there is no emergency preparedness for any other part of the County either.
Second, the fact that Mr. Jorgensen did not address " reduced risks" is irrelevant. The Board found that the risk of low power operation, whatever may be the level of that iisk, requires emergency planning within the six mile LPZ.51/ As discussed above, however, Mr. Jorgensen's testimony proved, without contradiction by any other witness, that the County plan had not been implemented for the limited area of the LPZ or for any other part of the County.
the event of a radiological emergency at Diablo Canyon. This is because the County has not made sufficient preparations to implement these plans and j thus is not prepared to respond to an emergency at Diablo Canyon. Direct test. pp. 1-2, after Tr. 10,901.
On cross-examination, Mr. Jorgensen was asked:
Q. Now, your affidavit does not go specifically to the LPZ, the six-mile ring, land ring, around Diablo Canyon, does it?
A. No, it does not.
Q. Your affidavit goes to an emergency plan for the whole County, does it not?
A. Yes, it goes to the existence of actual j preparedness under an emergency plan. Tr. 10,9 81 l (Jorgensen).
57/ PID, p. 51, 1 131.
25 -
l l
Final] f, the Boartd relied on the " Sheriff's Plan" as the Board's primary -- indeed only -- basis for finding sufficient off site emergency preparedness. The Board erred. Indeed, the Governor submits that this " plan" actually fortifies the conclusion that there is inadequate emergency planning and preparedness. In no way does that plan demonstrate compliance with the NRC's regulations.
(2) The " Sherif f's Plan" for Evacuation of the LPZ Does Not Demonstrate Compliance with Section 50.47.
The " Sheriff's Plan" unexpectedly became a part of the record in this proceeding at the very end of the hearing. During the hearing, PG&E presented no direct testimony regarding the County's offsite emergency preparedness.53./ Similarly the Staff presented no evidence of offsite emergency preparedness:59/
58/ The PG&E panel of witnesses testified only that they
" intuitively believe[d]" that evacuation of the LPZ "would be a relatively simple task . . . ." Shiffer at 38 (emphasis supplied), Tr., after p. 10,604. The members of the panel confirmed that they did not have expertise on the subject.
Tr. 10,807 (Shiffer). Their " intuition" as laymen, therefore, was of course entitled to no weight.
59/ Mr. John Sears of the Staff testified to a so-es11ed FEMA
" finding" regarding offsite prepardness. Sears at 6, Tr.
after p. 11,035. However, cross examination demonstrated that there was in fact no FEMA " finding" related to Diablo Canyon and that Mr. Sears was not qualified to testify regarding of fsite preparedness. In short, Mr . Se a s '
testimony was thoroughly discredited. See Governor Brown Proposed Findings of Fact and Conclusions of Law, June 16, 1981, pp. 41-55 for a summary of the evidence. The Licensing Board did reference in passing a FEMA /NRC Steering Committee Memorandum (PID, p. 20, 1 46), but so far as the Governor can discern, the Board did not rely on any FEMA
" finding" for its decision. Accordingly, Governor Brown does not address the matter further in this Brief, but calls (Continued)
__a
Thus, at the conclusion of the direct cases of PG&E, the Staff, and Governor Brown, the record overwhelmingly demonstrated the lack of local emergency preparedness. The Governor's witnesses, particularly Mr. Jorgensen, a member of the County Board of Supe rviso rs, and Dr. Mitchell, the County Health Officer, demonstrated this fact conclusively.
Only after being confronted with the evidence of no County emergency preparedness did PG&E unexpectedly call the Sheriff to testify. The Sheriff had not been scheduled as a PG&E witness and had not presented direct testimony. Thus, the Sheriff was improperly called by PG&E as a surprise rebuttal witness to attempt to show a capability for evacuation of the LPZ.sS/ ,
The Sheriff testified that he has a four-year old " plan" for use in the event of a radiological emergency at Diablo g
Canyon:61/ (The plan was admitted into evidence as Board Exhibit 5.) However, the Sheriff's plan addresses only evacuation. ,
the Appeal Board's attention to pages 41-55 of the Guvernor's June 16 Proposed Findings if the Appeal Board should wish to look further into FEMA's role.
60/ The Licensing Board erred in permitting PG&E to present surprise rebuttal testimony. The regulations clearly prohibit surprise direct testimony. 10 C.F.R. S 2.743(b).
The same principle of preventing surprise tes.timony manifestly applies on rebuttal as well. Thus, while the Governor would not have objected to rebuttal testimony by a member of PG&E's direct testimony panel, the Governor strongly objected to the use of a PG&E surprise witness (for ;
whom the Governor's counsel, witnesses, and consultants I could not prepare) on a subject not addressed in PG&E's direct case. Tr. 11,300-01. PG&E failed to offer a complete direct case in that it did not present any evidence of the County's offsite emergency preparedness. PG&E should not have been allowed to try to make up for this deficiency through the guise of rebuttal.
_I; /
Ji: Tr. 11,323-24 (Whiting).
Th us , it does not cover the other critical actions which must be readied and available for of ite emergency response.j2/ In fact, the Sheriff's plan could not cover these other emergency actions because they are Neyond the legal authority of the Sheriff.
Indeed, such other emergency actions are the exclusive province of the County Office of Emergency Services or the State Park.
Accordingly, even giving the Sheriff's testimony and plan full weight, the inherent limitations on the Sheriff's jurisdiction, capabilities, and authority actually cooroborate the fact that 1
62/ These other actions -- actions which will not occur because there is no implemented County plan -- include:
-- Monitoring by Health Agency personnel. The Agency also must provide emergency health and sanitation
, services. See the inoperative 1976 County Response Plan, pp. 11-12 and Standard Operating Procedures.
The County Of fice of Emergency Servies must convene the Emergency Organization and activate the Emergency Operations Center. Id . , Standard Operating Procedures.
-- The California Highway Patrol must be alerted and l
integrated into County response. Id.
-- The County Social Services Department must relocate af fected persons. d.
-- The County Fire Department must assist in evacuation l
and monitoring. Copnty Evacuation Plan, p. 10.
-- The County Engineering Department must remove debris from evacuation routes and assist in monitoring. Id.
-- Thu County parks and beaches must be alerted. Id.
-- The State Parks must be evacuated on order of State l Park personnel. See the inoperative 1976 County l Evacuation P'an, p. 6.
t f The foregoing actions all must be taken in addition to any
- evacuation that might be ordered by either the County OES or the Sheriff. Some of these actions must be taken even if evacuation is not ordered.
I
there is no emergency preparedness in the LPZ or anywhere else in the County. In short, there is no local emergency preparedness in compliance with Section 50.47.53Y Further, the Sheriff testified that his four-year old " plan" is outdated and needs updating. With such updating, he believed
! the plan could be executed.54/ The facts make this doubtful.
Indeed, the evidence of record is clear that the Sheriff's outdated plan has never even been practiced in a coordinated exercise with other Count.y personnel.55/ Without such practice i
~~63/ The lack of preparedness is further highlighted by the complete lack of a public information program. PG&E has not conducted a public inforsetion program as required by Section 50.47(b)(7), although it stated it a intent tc conduct such a program prior to fuel loadin s. This apparently would take place in the last 30 days before commencement of reactor operation. Sears at 5, Tr. after p.
11,035; Tr. 10,000, 10,818, 10,872-74 (Shiffer). Based upon this "commi tmen t," the Licensing Board found compliance wita Section 50.47(b)(7). PID, pp. 37-38, 1 92. The Board should be reversed because despite the " commitment" to a public information program, PG&E failed to supply even rudimentary details of what this program would include.
Indeed, the PG&E witncsses merely stated: "If it appears that we will be licensed before the sirens are in, :her will get out some sort of a newsletter to everyone .:' t .e LPZ as to what the staras is at that point in time." T, .
I 10,800 (Shiffer). PG&*;'s hollow, generalized "commi taent",
unaccompanied by any meaningf ul information, is in fact no commitment at all and falls far short of meeting PG&E's burden of proof under Section 50.47(c) (1) .
64/ Tr. 11,323-24, 11,337 (Whiting).
l i
65/ Tr. 10,915-16 (Mi tchell) . PG&E's witness, Mr. Shiffer, testified that 5 yeara ago the Sherif f sent a team to l
practice house-to-house notification. However, the team only went to See Canyon. Thus, this " drill" did not cover Perfumo Canyon, or the Field Ranch, or persons in Montana de Oro State Park. It also did not cover the agricultural wcrkers within the LPZ who would need to be evacuated in an emergency. Tr. 10,808, 10,865-67 (Shiffer). Thus, the
" drill" is not only too ancient to demonstrate any present preparedness, but it was also complete.ly inadequate in its (Continued) m _
I l t
and proof of the usefulness of the plan, therefore, there was no lawful basis for the Licensing Board to have concluded that the l
Sheriff can and will carry out all necessary emergency actions.
This is particularly true because the Sheriff's office is not equipped or manned to take the many emergency response actions i that would go beyond police-type functions during a radiological emergency 66/
The Sheriff's plan is not suf ficient even for the limited l
purpose of evacuating the entire 6-mile LPZ . The LPZ includes t
' Montana de Oro State Park, located at its closest point less than 2 miles from the Diablo Canyon facility. The. Park may have as many as 1,500 visitors at any one time.6]/ The LPZ also has an l
undetermined number of agricultural workers _68/ However, the
! Sheriff's " plan" does not even aention the agricultural workers, l
much less provide a plan for their notification and evacuation.
scope and effect.
66/ A most tell-tale inadequacy of the Sheriff's " plan" is that it is not an integrated component of any County emergency planning and preparedness process. The Sheriff's " plan" stands outside the County's emergency response planning.
Neither Mr. Jorgensen of the County Board of Supervisors, nor the County's Emergency Services Coordinator even had >
knowledge of the existence of the Sheriff's plan. Tr.
10,973-74, 10,984 (Jorgensen). Thus, the record is clear that while the Sheriff may on his own be planning to energize his outdated 1977 evacuation plan, the rest of the I County government, and particularly the County OES which is
! by law responsible for emergency planning and preparedness, is not even aware of the Sheriff's intentions, let alone getting ready to coordinate their actions with his plan.
67/ PID, p. 45, 1 115.
6S/ Tr. 10,808, 10,865-67 (Shiffer).
t l
l 30 -
1 .--. .
With respect to the State Park, the Sheriff's own plan states that the Sheriff is to " coordinate and direct evacuation of the Low Population Zone (except ".he State Park) ."69/
Similarly, even the County's " shelved" 1976 Evacuation Plan recognized that the Sheriff has no jurisdiction to evacuate the State Park. Thus, the inoperative plan stated: " State parks and beaches within San Luis Obispo County will be evacuated on order of the chief ranger in charge or his designated represen-tative. 70/
The Licensing Board was thus confronted with no evidence of preparedness to evacuate the State Park.21/ Nevertheless, the Board found:
Evacuation of the State Park would be coordinated with State Park personnel. Persons in remote sections of the park can be notified by personnel on foot or using horses. (San Luis Obispo County Nuclear Power Plant Emergency Evacuation Plan, 1976, p. 35}. Mr. Sears also testified that the Sheriff haa an agreement with Hunter Liggett Air Force Base for use of a helicopter which, when equipped with bullhorns could be used to warn persons in the park. The helicopter can fly in adverse weather. (Tr. 11068).72/
This " finding" must be rejected. First, there was no evidence whatsoever concerning whether, how, and under what conditions Park personnel would respond. The record is bare of evidence to 69/ Board Ex. 5, p. 4 (emphasis supplied). The Sheriff may
" assist" the Parks Department if that is required. Id.
70/ County Evacuation Plan, p. 6.
71j/ It was agreed by the Staff that even persons in the rugged back-country of the Park must be notified in an emergency.
Tr. 11,253 (Sears).
l 72/ PID, p. 46, 5 117.
[ ,
t o .
- ,suppo , this " finding." Indeed, the only data in the record suggest that tha Park has no preparedness.73/ Second, the
" finding" regarding " personnel on foot or using horses" relies solely on an inoperative provision of the " shelved" 1976 County plan. Finally, the use of helicopters and bullhorns to warn persons in the remote areas of the park is technically not possible_74/
73/ In oppositian to summary disposition, Governer Brown submitted the affidavit of Pete Dangermond, Jr. , the State Director of Parks and Recreation. Mr. Dangermond stated that there was a lack of Park preparedness to respond to a Diablo Canyon emergency. See Exhibit 13 to Opposition of Governor Edmund G. Brown Jr. to the NRC Staff and PG&E Motions for Reconsideration and Summary Disposition, April 24, 1981.
74/ Counsel for the Governor learned af ter the hearing that Mr.
Sears misspoke when he testified that helicopters and bullhorns could be used to notify persons in the Park. The Governor moved to correct the misstatements, submitting a motion and detailed affidavit of Mr. Richard Felty, Director of the State Department of Parks and Recreation for the Central Region of California. See Motion of Governor Edmund I
G. Brown Jr. to correct NRC Staff Misstatements of Fact, l July 15, 1991. Mr. Felty had contacted personel !.n the MAST
( program, which Mr. Sears had indicated would supply the
! necessary helicopters. Mr. Felty learned and stated by affidavit that:
-- MAST does have helicopters for emergency operations but has no bullhorns for notifying persons on the ground.
-- MAST has experimented with use of bullhorns from i helicopters and has found that the helicopter l
noise is too great to permit effective use of such
- equipment.
l
-- Skid-mounted loudspeaker units might be feasible as a notification method but no such equipment is available to the MAST unit.
-- MAST has all-weat'er helicopters. However, in foggy conditions, MAST must fly on an official, pre-established route or above the highest point
s .
I The Sheriff's plan has another serious deficiency which l prevents it from constituting a basis, even on paper, for the requisite emergency preparedness. The emergency classification and action levels in the Sheriff's 1977 plan are different from those in PG&E's onsite plan. This is contrary to 10 C.F.R.
S 50.47(b)(4) and NUREG-0654, Planning Standard D, which require that PG&E and local emergency response plans use a standard classification and action level system. The 2ncongruity in classification and action levels is a fundamental shortcoming i
which shows not only that the Sheriff's plan is unworkable vis-a-vis PG&E's plan, but that there must have been no coordination between PG&E and the Sheriff over recent years. Indeed, had there been meaningful communication between PG&E and the Sheriff, and had PG&E thought the Sheriff's plan relevant, one would think 1
that PG&E certainly would have assured that its plan and the Sheriff's plan were compatible.
Specifically, PG&E's plan has an emergency classification system generally consistent with Appendix 1 of NUREG-0654. This system has four action levels: Notification of Unusual Event; Alert; Site Emergency; and General Emergency.75/ In contrast, in the area or within sight of the ground. In the rugged terrain of Montana de Oro State Park, the helicoptes would have to fly at considerable altitude to avoid crashing into hillsides. At that altitude, skid-mounted loudspeakers, even if available, would not be effective. See Af fidavit of Richard E. Fel ty.
The Board received the Governor's Motion and af fidavit on July 15, 1981, but ignored its contents in the PID.
75/ For each action level, the PG&E Plan describes the kinds of situations that may be involved, the release potential, the (Continued)
~. . .
however, the Sherif f's outdated plan 76/ uses an entirely
. different accident classification system. That system has six classes of accidents, unlike PG&E's four. These Sheriff classifications, which relate to the severity of the accident and to whether air or water-borne releases are expected, bear r31 resemblance to PG&E's classification system.77/ They clearly are not integrated into the PG&E plan as required by the NRC's regulations.
Despite these sharp inconsistencies between the onsite and I
offsite emergency classification systems, the Licensing Board ruled that emergency preparedness was adequate. The Board never mentioned the wholly incompatible classification systems, even though the Governor specifically called these deficiencies to the Board's attention.78/ Moreover, PG&E and the Staf f presented no i- evidence of any training of the Sheriff's office to ensure adequate emergency communications, actions, and coordination in an emergency. In short, the record shows conclusively that there l purpose of the action level, the general actions of PG&E personnel, and the general actions of local and State offsite authorities. PG&E Plan, Section 4.
i 76/ The County's 1976 plans, of course, were never implemented
! and, thus, are not relevant here. Nevertheless, it is l
noteworthy that the County's emergency classification levels in the shelved 1976 plans are also different from PGLE's l
classification system. PG&E has 4 levels, whereas the i County's inoperative plans, like the Sherif f's plan, have 6
! levels.
77/ See Board Ex. 5, pp. 10-13.
78/ Governor Brown Proposed Findings of Fact and Conclusions of t
l Law, June 16, 1981, pp. 62-63.
l
is a complete lack of the mandatory integration of onsite and offsite planning;79/
In sum, the evidence of record on local emergency preparedness is as follows:
-- The County's two 1976 emergency plans are inoperative. They were never implemented, and following the TMI accident, those plans were " shelved" so that the County could develop new plans in accordance with the NCC's post-TMI regulations. Thus, there is no emergency plan or preparedness for the LPZ or for any other part of the County.
-- The Sheriff's four-year old " plan" is limited to evacuation. It has never been practiced in connection with other response actions that would be essential during an emergency; it needs updating; it does not authorize emergency actions in Montana de Oro State Park; it does not address agricultural workers; it is incompatible with the PG&E plan; and it is not integrated into the County's emergency response organizatien.
The Governor submits that such evidence of record does not permit the NRC to approve emergency planning and preparedness at Diablo Canyon. Indeed, the evidence of record demonstrates conclusively that integrated emergency planning and preparedness at Diablo Canyon, as required by Section 50.47, does not exist.
l l
(3) There is No Preparedness to Deal with the Complicating Effects of an Earthquake On Emergency Re s ponse .
The following evidence was undisputed at the low power hearing:
-- An earthquake on the Hosgri Fault, either in conjunction with or separate from a radiological emergency, would seriously complicate emergency preparedness and response during low power operation, 79/ See 45 Fed . Reg . 55,403 (1980).
1 l
l l
l especially with respect to communications and evacuation.80/
-- PG&E performed no analysis of the complicating ef fects of an earthquake of any proportion on the functioning of the PG&E Dnergency Plan during low power operation of Diablo Canyon. Similarly, the Staff made no such review of this matter. Thus, the PG&E Emergency Plan, l
the offsite County plan, and the State plan include no l
compensating measures to ensure adequato preparedness if an earthquake complicates emergency response.81/
Based on this evidence,82/ the Governor urged the Board to find j
that PG&E's failure even to consider the implications of an earthquake on emergency preparedness during low power operation precluded approval of emergency planning and preparedness at Diablo Canyon _83/
I 80/ Tr. 10,878-80 (Shiffer).
81/ Tr. 10,878 (Shiffer); Tr. 11,060 (Sears).
82/ The Governor called the Board's attention to the recent Licensing Board Order in the San Onofre case, where earthquake analyses related to emergency preparedness were l required. See Memorandum and Order (Rulings on Motions to l Compel Answers to Interrogatories), Southern California l Edison Co. (San Onofre Nuclear Generating Station, Units 2 ,
and 3), Docke t Nos. 50-3 61-OL and 5 0-3 62-OL, April 8, 1980. In San Onofre, the Board stated:
Applicants, particularly applicants in a seismically active area like California, should be prepared to demonstrate that their emergency plans can function in a major earthqua,ke situation. The absence of the word
" earthquake" from 10 C.F.R. 50.47 and Appendix E is not I
determinative. It seems significant that both the PSAR i and FSAR are required to include analyses of the time required to evacuate the EPZ. Cne could at least argue that such an analysis, to be complete, should include i
evacuation problems likely to arise in the case of emergency conditions of f-site, such as a major earthquake.
83/ Gov. Brown Proposed Findings of Fact and Conclusions of Law, June 16, 1981, pp. 68-71.
i l * .
I The Licensing Board recognized for only superficial purposes that PG&E had performed no analysis of the potential complicating effects of an earthquake on emergency preparedness. The Board did not confront the serious impact of this crucial f act. Thus, the Board merely stated:
The Staff has requested PG&E to address protective l
action and implementation during an earthquake in the revised site plan for full-power operation.
FEMA has made a similar request covering areas around the site as part of their review of State and Local emergency plans for full power. (SER, Sup. 14, Staff Exhibit 25). This plan has not been requested for low-power testing. Mr. Sears testified that PG&E has committed to provide the requested analyses. A contractor report was due in mid-May but had not yet been provided to the parties. The applicant will revise the emergency plan to include the contractor's recommendations. (Sears, p. 7)84/
The fact that the Staff failed to request PG&E to perform the necessary earthquake analysis for low power operation, of course, has no bearing n the need for that analysis. Indeed, the Staff's action should be viewed only as oversight or misjudgment. In either case, it was clearly an error of the l
1 Staff.
The proximity of the Hosgri Fault .to the inadvertently sited I Diablo Canyon plant has made seismic considerations the central focus of this proceeding. Certainly, no one would presume to opine that an earthquake cannot happen during low power operation. Obviously it can, and, therefore, it is essential to know what effects an earthquake would have on the emergency plans, preparedness, and response of PG&E, the County, and the 84/ PID, p. 47, 5 120.
State. For this reason alone, the Licensing Board should be reversed. The proceeding should be held in abeyance until such time that the critical earthquake analysis is performed and evaluated on the record.
PG&E presented no evidence to demonstrate that its emergency plan and those of the County and State would be operative in the event of an earthquake, despite the admitted relevance of an earthquake to emergency preparedness during low power i
operation. Indeed, the evidence is compelling that the PG&E plan cannot properly function in an earthquake situation. For instance, PG&E proposes to utilize an interim Emergency Operations Facility located near the Sheriff's station. This facility will contain key comniunications and computer systGms for following the course of an accident. The interim facility is a trailer, which is not a seismically qualified structure.8]/
Thus, in an earthquake, this trailer, the brain-control center for of fsite emergency coordination, cannot be assumed to be available. This clearly ignores the teaching of TMI.
The Licensing Board's error is in sharp contrast to the July 31, 1981, ruling by the Board in the San Onofre proceeding. That Board made clear that emergency preparedness must include preparations for the complicati9ns of an earthquake.
We have before us the question whether the SSE, as previously assigned for design purposes, provides acceptable assurance for the protection of the 85/ Shif fer at 10, Tr. af ter p. 10,604; Tr. 10,752-54, 10,680, 10,791 (Shif fer) .
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~
I public health and safety. Even more severe earthquakes should not be postulated for design purposes without a substantial factual showing.
But it does not follow that an earthquake more severe than the SSE -- severe enough to damage the f acility -- should not be postulated for the entirely separate purposes of emergency planning. Although it is extremely unlikely, an earthquake in excess of the SSE could conceivably occur near the facility. If that were to happen, we should assume for regulatory purposes that it could cause a large radioactive release at the plant, and simultaneously, heavy damage to communications facilities and highway evacuation routes. In a seismic area like California, an Applicant and nearby Jurisdictions can at the very least be required to consider what they would do in such an event, and to make approp,riate plans consistent with reasonable cost pro]ections. 86/
This proceeding is an even more compelling case than San Onofre for consideration of earthquake effects on emergency planning. Indeed, Diablo Canyon is sited only 2 1/2 miles from the Hosgri Fault, which is capable of a major M 7.5 earthquake.
Thus, there was no justification for the Licensing Board to ignore the question whether there would be adequate emergency preparedness onsite and offsite in the event of the 7.5 M Safe Shutdown Earthquake.
Extremely significant to this proceeding is the further fact that PG&E's own onsite emergency plan specifically states that one of the initiating events for emergency action is an
" Earthquake greater than SSE Levels.".81/ Inexplicably, PG&E and the Staff have ignored this explicit provision of PG&E's plan, even though both parties obviously know that the earthquake 86/ Licensing Board Order at 2-3 (emphasis supplied).
d7/ PG&E Plan, p. 4-19 (Section 4. 2. 3.12a) (emphasis supplied).
. - _ . _ _ _ _ _ _ _ __39 -
l potential at Diablo Canyon is the overriding concern to public i health and safety.88/ In contrast, the San Onofre Board ruled I that the complicating effects on emergency response of an earthquake greater than the SSE must be considered.
There cannot, of course, be any " low power exemption" for these necessary earthquake analyses of the 7.5 M SSE or an earthquake greater than that SSE. Even PG&E's own witness admitted that an earthquake during low power operation would complicate emergency response, particularly with respect to communications;89/ Absent the required demonstration by PG&E that there is preparedness to function under such complicating circumstances, the Licensing Board should not have approved issuance of the License.
88/ The PG&E Panel stated that it did not know whether any analysis had been performed regarding the complicating effects of an earthquake greater than the SSE. Tr. 10,794 (Shiffer). Similarly, the Staff witness stated that he did not consider the complicating effects of an earthquake i
greater than the SSE, and did not consult with the Staff's seismic experts or consultants on this matter. Tr. 11,283-84 (Sears). This gross omission, which ignores an emergency -
action provision of PG&E's own plan central to the seismic vulnerability of Diablo Canyon, was itself sufficient to justify summary denial of PG&E's request for a low power operating license.
89/ See citations at notes 80-81, supra. This Appeal Board properly can take notice of the rugged tarrain in the vicinity of Diablo Canyon. In an earthquake situation, access to the facility could be severly complicated, and evacuation of nearby residents could be rendered nearly impossible.
l I
. . I C. The Appeal Board Must Reverce the Licensing Board's Decision On Emergency Preparedness.
In the Governor's Brief to the Licensing Board and again herein, the Governor has demonstrated that there is no offsite preparedness at Diablo Canyon; that onsite preparedness is significantly deficient; and that PG&E failed to introduce any evidence, let alor.a the required preponderance of evidence, to demonstrate under Section 50.47(c) (1) that the documented deficiences in emergency preparedness are insignificant for low j
power operation. In their Briefs to the Licensing Board, PG&E I
and the Staff did not rebut this failure of proof, but, instead, l relied only on the alleged low " risk" of low power operation to justify issuance of the License. Thus, for eaample, the Staff argued that since the risk of low power operation is less than the risk of full power operation, the numerous deficiencies in l
emergency preparedness are per se insignificant for low power operation:90/ The Board apparently accepted this argument, without so stating, because without analyzing any of the j deficiencies or the Section 50.47(b) Planning Standards, the Board found that the deficiencies were insignificant.91/
The Board's cursory and conclusory dismissal of emergency preparedness deficiencies is unjustifiable. First, the Board's >
90/ See NRC Staff Proposed Findings of Fact and Conclusions of Law, June 22, 1981, pp. 31-32. The Staff states: "In view l
j of the testimony on the extremely low risk during low power, t it is evident that the deficiences in emergency planning are not significant for low power testing at Diablo Canyon."
Idl._ (emphasis supplied ) .
l 91/ PID, p. 51, 1 133.
obligation was to confront the evidence and arguments and to provide reasons for its decision. Second, che Board itself found that offsite planning and preparedness to six miles from the plant is necessary;92/ Such a finding of need for six miles of preparedness is hardly commensurate with insignificant risk.
Third, since emergency preparedness e relevant for low power, both onsite and offsite, the, only means for determining the significance of a particular deficiency in PG&E's preparedness was for PG&E to introduce avidence concerning the Planning Standard to which the deficiency related and then, as provided in Section 50.47(c)(1), to analyze the deficiency in light of the Planning Standard and the relevant planning zones for low power operation. However, PG&E introduced no such evidence, therefore failing to take tne " opportunity" afforded it by Section 50.47(c)(1). And, the Licensing Board failed to confront this 92/ PID, p. 51, 1 130. The Governor has assumed, arguendo, that the six-mile planning area is appropriate for low power operation. As demonstrated above in this Brief, it is clear that even within that six-mile zone, there is no emergency preparedness. Nevertheless, the Governor demonstrated to i
the Licensing Board that there was no competent evidence to support limitation of necessary preparedness to a six-mile zone, because: (a) PG&E improperly relied on " design basis" values for containment leakage, rather than the significantly larger releases that must be postulated under Section 50.47; (b) the Staff presented a " risk" witness who l
l was not even qualfied as an expert; and (c) both PG&E and l
the Staf f improperly challenged the NRC's regulations in j arguing, in essence, that an accident could not occur at low I power. The clear lesson of TMI and the mandate of Section 1
50.47 is to assume that a serious accidental release occurs and to be prepared to respond. See Governor Brown Proposed Findings of Fact and Conclusions of Law, June 16, 1981, pp.
15-3 4; Af fidavit of Richard B. Hubbard, attached to July 10, 1981, Motion of Governor Brown to Reply to PG&E Filing.
l
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fact or to provide a reasoned basis for its apparent approval of the Section 50.47(c)(1) cxemptions.
The NRC's emergency preparedness regulations categorically preclude the grant of an operating license to PG&E unless the following " finding" is made:
that the state of onsite and offsite emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.93/
The undisputed evidence of record does not support such a finding. Under the NRC's regulations, PG&E had the burden of proving that the deficiencies in emergency preparedness were not significant in order for the Licensing Board to approve emergency preparedness at Diablo Canyon. PG&E failed even to attempt to meet this burden and in fact offered virtually no evidence on any of these deficiencies. On this record, therefore, the Licensing Board was compelled to deny the license. Since the Board did not, this Appeal Board must now reverse.
! IV. The Licensing Board Erred in Rejecting Subjects and Contentions Presented by the Governor and Joint In te rveno rs .
On December 3, 1980, the Governor and Joint Intervenors i submitted Subjects and Contentions, respectively, for litigation in the low power test proceeding.94/ Subsequently, on February 13, 1981, the Board rejected most of these Subjects and Contentions, primarily on the basis that they were "not directly l 93/ 10 C . F. R. S 50.47(a)(1) (emphasis supplied).
94/ The submission of Contentions and Subjects was pursuant to i
the Licensing Board's Order of October 2, 1980.
+ .
, related to NUREG-0737 requirements."95/ This "directly related" standard for acceptance of Subjects and Contentions, which the Board fashioned without a legal basis, is contrary to the explicit guidance of the Commission in the December 18, 1980, Revised Policy Statement 9 6/ and in CLI-81-5, dated April 1, 1981.91/ Since Licensing Board adherence to Commission guidance is mandatory;98/ the Licensing Board's rejection of Subjects and Contentions must be reversed. A hearing must now be held on the Subjects and Contentions that ware improperly rejected.
In the Revised Policy Statement, the Commissioners mado clear that parties may litigate contentions which challence the.
sufficiency of NUREG-0737 provisions. Thus, the Commissioners stated that the NUREG-0737 requirements fall into two categories, both of which may be litigated:
( .1) Those that interpret, refine or quantify the general language of existing regulations, and (2) those that supplement the existing regulations by imposing requirements in addition to specific ones already contained therein. Insofar as the first category -- refinement of existing regulations -- :
is concerned, tae parties may challenge the new 95/ Prehearing Conference Order, p. 13 (emphasis supplied). The Board stated that it was nct:
reasonable to interpret the provision (of the NRC's :
Revised Policy L*ntement] permitting the challenge of the sufficiency of ney regulatory requirements as permitting the addition of requirements not contained I in NUREG-0 737. Id. a t 14. 1 l
96/ 45 Fed. Reg. 85,236 (Dec. 24, 1980).
97/ CCH Nuc. Reg . Rptr. 1 30,581 (1981).
)
98/ Northern Indiana Public Service Co. (Bailly Generating Station, Unit 1) , ALAB-303, CCH Nuc. Reg. Rp tr. 1 3 0,0 31 (1975).
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requirements as unnecessary on the one hand or insuf ficient on the other within tr.e limits of the regulations.
Insofar as the second category -- supplementation of existing regulations -- is concerned, the parties may challenge either the necessity for or sufficiency of such requirements.99/
This language of the December 18 Revised Policy Statement, which in fact does not establish a "directly related" criterion for admission of contentions, was issued by the Co.waission prior to the February 13 date on which the Board applied the "directly related" criterion. Nevertheless, the Board did not follow the Commission's guidance. Nor did the Board correct its error later when on April 1, 1981, the Commission for the second time confirmed the right of parties to challenge the adequacy of post-TMI measures.
[I) f a party comes forward on a timely basis with I
significant new TMI-related evidence indicating that an NRC safe ty regulation would be violated by l
Plant operation, we believa that the record should be reopened notwithstandin; that the noncompliance item is not discussed in NUR8G-0737 and 0694.
l Where the new evidence raises no issue of compliance but rather questions whether there is i 99/ 4 5 Fed . Reg . 8 5,2 3 8 (emphasis supplied). The Commission was
! obligated to provide parties an opportunity to challenge the I
sufficiency of NUREG-0737 requirements becaute the NUREG,
- having never been subjected to public notice and comment, l
could not be imposed as a binding norm in this case. E.g.,
i Chamber of Commerce v. Occupational Safety and Health
! Admin., 636 F.2d 464 (D.C. Cir., 1980); Joseph v. United
- States Civil Service Comm. , 554 F.2d 1140, 1153-54 (D.C.
Cir. 1977). The Licensing Board, by imposing its rigid "directly related" criterion, violated not only the l Commission's Policy Statement guidance but also these judicial precedents construing the requirements of the Administrative Procedure Act.
1 adequate protection despite compliance with all l applicable regulations, a party has two procedural '
options under the Revised Statement of Policy.
First, a party may challenge the sufficiency of an l ite:n in the NUREG documents. However, the scope of the inquiry under this option is limited to the !
particular safety concerna that prompted the specific " requirements" in NUREG-0694 and 0737.
What we had in mind was allowing a party to focus on the same safety concern that fo rmed the basis for the NUREG requirement and litigate the issue of whether the NUREG " requirement" is a sufficient response to that concern.
Second, where the contention or new evidence cannot be associated with a safety concern identified by NUREG-0694 or 0737, 10 C.F.R. 2.758 may be used to bring the matter to the Commission's attention without prior litigation on the merits.100/
Thus, as explained by the Commission in its April 1 Order, the Revised Policy Statement permits contentions and Subjects which challenge the sufficiency of a NUREG-0737 requirement if such are based: (a) on evidence that an NRC regulation would be violated l by licensing the plant; or (b) on evidence that focuses on the i same safe ty concern which underlies the NUREG requirement.101/
The Governor's Subjects and Joint Intervenors' Contentions are clearly litigable ender the Commissic..'s two statements of 100/ CLI-81-5, CCH Nuc. Reg . Rp tr . 1 30,581 (1981) (emphasis supplied).
101/ The Commission's Policy Statement also required a showing that standards for reopening records'or for late filed contentions, as applicable, were satisfied. See 45 Fed.
! Reg. 85,238 (1980). Joint Intervenors and Governor Brown 4 demonstrated compliance with these criteria and the Board j did not reject any contentions or subjects on this basis.
See, e.g. , Joint Intervenors' Response to NRC Staf fs February 23, 1981 Request for Directed Certification and Pacific Gas and Electric Company's February 26, 1981 Request for Directed Certification, pp. 67-72.
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guidance. The Joint Intervenors documented this fact in a comprehensive pleading filed with the Licensing Board shortly af ter the Commission's April 1 Order.102/ However, the Licensing Board rejected this proffer without providing any explanation.
In ste ad , the Board merely stated that CLI-81-5 "does not require a change in the findings contained in its Order of February 13, 1981."103/ As noted above, however, CLI-81-5 clearly does require a different result, because the Board's February 13 Order applied the wrong test. Further, there is no possible justifica-tion for the Board to have rejected the argument that CLI-81-5 requires a dif ferent result, without stating its foundations and reasons. Indeed, the Appeal Board specifically has admonished the Licensing Boards that conclusory rulings will not suffice.
[W]e deem it to be the general duty of licensing boards to insure that initial decisions and miscellaneous memoranda and orders contain a suf ficient exposition of any ruling on a contested issue of law or fact to enable the parties, and this Board in its own review, readily to aporehend the foundation of the ruling.
Compliance with this general duty is not a mere procedural nicety but is a necessity if we are to carry out efficiently our appellate review
( responsibilities.104/
I i
l l
102/ Joint Intervenors' Response in Opposition to NRC Staff's and PG&E's Motion for Reconsideration, April 22, 1981, pp. 8-20.
l 103/ Licensing Board Memorandum and Order, April 30, 1981, p. 2.
104/ Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 A.E.C. 179, n.2 (1973);
se e , e . c[. , Cincinnati Gas and Electric Co. (Zimmer Nuclear Power Station) , ALAB-305, CCH Nuc. Reg. Rptr. 1 3 0,0 3 5 (1976); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, CCH Nuc. Re g . Rptr. 1 30,216 (1977).
o .
The clear error of the Licensing Board's ruling can be further demonstrated with the following several examples: (1) the Governor's .--ject 14 addressed the adequacy of PG&E procedures for feedbar.c of operating experience to PG&E personnel. This focuses on a specific NUREG requirement -- NUREG-0737, Item I.C.
5, Procedures for Feedback of Operating Experience to Plant Staff; (2) Joint Intervenors' Contention 10 focuses on the issue of reliability of the pressurizer heaters in the event of an accident, as does NUREG-0737 Item I.E.3.1, Emergency Power for Pressurizer Heaters; (3) Contention 12 concerns the issues of PORV performance and design, which are also the focus of NUREG-0737 Items II.D.1, Relief and Safety Valve Test Requirements, and II.K.3, Final Recommendations, B and O To c Force; and (4)
Contention 18, regarding adequate qualification of equipment important to safety in order to assure operability during normal, i
! transient, accident, and post-accident conditions, focuses on the l
same safety concerns which prompted a series of NUREG-0737 items, including Items II.B.2, Plant Shielding; II.D.1, Relief and Safety Valve Test Requirements; and II.F.1, Accident Monitoring Instrumentation.105/ Clearly, the Commission's guidance of December 18 and April 1 does not permit the rejection of these critical safety issues.
The Licensing Board also rejected certain of the Governor's Subjects for reasons largely unrelated to the Board's 105/ For further discussion of the Licensing Board's erroneous ruling concerning the NRC's guidance, see Joint Intervenors' April 22 filing.
1
! m AS m
i 1 l
interpretation of the NRC's policy guidance. In each of the following instances, the Board's rejection was erroneous:
Subject 4. The Governor specified in Subject 4 seven NUREG-0737 items which PG&E had not satisfied.106/ Indeed, each item j had been listed a, incomplete by the Staff in SER, Supp. 10.
Thus, the Governor questioned whether PG&E would in fact be in compliance with each of these items prior to fuel loading. The items included such critical matters as PG&E operators' 106/ Subject 4. Whether PG&E, as alleged in its Motion, has l complied with or will comply with the requirements of NUREG-0694 prior to loading fuel (Motion, p.2. ) , including the following matters specified in the Safety Evaluation Report
( "S ER" ) , Supplement 10, which the NRC Staf f has examined but which, as of publication of Supplement 10, were not complete:
(a) Adequacy of the training, experience and procedures for shift technical advisors. (SER, Suppl. 10, p. I.A.-2)
(b) Results of cold license examinations for the 21 candidates who were to take examinations in August 1980, and results of examinations for other licensed personnel. (jp3. I.A.-6)
(c) Adequacy of procedures for accident mitigation and recovery. (Id. I.B.-3)
I (d) Adequacy of the reorganizationn of PG&E's operating organization for both routine and emergency operations and adequacy of PG&E's agreements with other organizations and utilities to pool resources in the event of an emergency.
i (Id.)
(e) Adequacy of PG&E's guidelines and procedures for emergency core cooling and small break LOCAs.
(f) Adequacy of PG&E's startup test procedures. (Id.
I.D.-7)
(g) Adequacy of PG&E's measures to deal with human factors-related deficiencies. (Id. IV. 1-2 and 3).
l performance on licensing examinations and availability of adequate operator manpower, key shift manning issues which the Commissioners themselves have recently been considering ex parte in the Diablo Canyon case _107/ In fact, operators' performance on licensing examinations has been less than satisfactory, raising a question about the adequacy of PG&E's shift manning proposals. These matters are precisely what the Governor sought to litigate in Subject 4.
Nevertheless, the Licensing Board rejected Subject 4, ruling j that there was no issue because all parties agreed that-PG&E would have to complete satisfactorily each open NUREG item.108/
The Board thus foreclosed the parties from joining issues of genuine dispute and, in effect, peremptorily decided the merits of the issues: 1.e., the Board found that PG&E would in fact comply with each NUREG-0737 item.
. The Board's action was erroneous. The Licensing Board is barred, by both logic and law, from deciding the merits of a contention at the time that it is deciding whether to accept that i
contention.109/ Indeed, as demonstrated by the Commission's recent discussion of these matters with the Staff, it in highly 107/ See NRC Meeting Transcript of August 27, 1981.
108/ Prehearing Conference Order, p. 32.
109/ See Mississippi Power and Light Co. '(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973); Houston Power and Light Co. (Allens Creek Nuclear Generating ~~
Station, Unit 1), ALAB-590, CCH Nuc. Re g . Rptr. 1 30,473 (1980); P. oject Management Corp. (Clinch River Breeder Reactor), ' CCH Nuc. Reg. Rptr. 1 30,060 (ASLB 1976); Duke l
Power Co. (Oconee Nuclear Station), ALAB-528, CCH Nuc. Re g .
Rptr. 1 30,366 (1979).
questioniable whether PG&E will comply with all NUREG-0737 requirements, particularly those relating to shift manning. A participant in a proceeding before the Licensing Board clearly has the right to contest whether an applicant has complied or will comply with a NUREG-0737 requirement. By denying Subject 4, the Board violated settled NRC law and, in effect, required the Governor to take on faith the Board's suggestion that regulatory requirements which were then unsatisfied would later be met.110/
Subjects 6-12. In these Subjects, the Governor quoted or paraphrased the actual' language used by PG&E itself in PG&E's low power test Motion. Thus, the Governor put into controversy the very claims and statements made by PG&E on the record.111/
Nevertheless, in each such case the Licensing Board found the Governor's Subject deficient, either for lack of direct l
i 110/ The Board's rejection of Subject 4 was further in error i because the Governor, by citing the Board and other parties to specific SER items, satisfied all specificity and basis requirements. See Gulf States Utilities Co. (River Bend Units 1 and 2), ALAB-444, CCH Nuc. Reg. Rptr. 1 30,250, at 28,309-10 (1977). See also Duke Power Company (Oconee Nuclear Station), ALAB-528, CCH Nuc. Re g . Rp tr. 1 30,366 (1979).
111/ For exumple, in its July 14, 1980 low power Motion, PG&E asserted that low power operation "will not pose an undue risk to the health and safety of the public." Mo tion, p.
- 2. Governor Brown's Subject 8 contested this statement:
Subject 8. Whether the requested licenses and the activities authorized thereunder "will not pose an undue risk to the health and safety of the public" (Motion, p. 2), particularly since PG&E has not submitted safety analyses related to these activities and the NRC's risk assessment is unsupported by plant-specific analyses. (SER, Supp. 10, p. I.G.-5) relationship to NUREG-0737 Gr for insuf ficient basis or
. specificity.ll2/
The Board's rulings on these Subjects are intrinsically illogical and erroneous, as the following discussion discloses.
In October 1980, the Board ruled that PG&E's low power test Motion was sufficient to justify commencement of the low power proceeding.ll3/ In so ruling, the Board denied the Governor's request to dismiss PG&E's Motion for insufficiency under the NRC's regulations, Sections 2.730(b) and 2.732, which set forth the requirements for motions.ll4/ Since the Board found PG&E's '
Motion to be sufficient, there could be no logical basis for the Board later to rule that the Governor's challenge quoting PG&E's own language was insuf ficient. Ye t , the Board inexplicably did just that and barred the Governor from contesting the very f actual claims that PG&E had made. Contrary to the Board's ruling, due process, the Administrative Procedure Act, and the NRC's own regulctions protect a participant's right to contest the factual claims made by the proponent of a motion.
Further, given that the Governor adopted PG&E's own words as the basis for the Subjects, there is no reasonable ground upon which the Board could reject those Subjects for lack of specificity, lack of relevance, or insufficiency. Indeed, if the 112/ Prehearing Conference Order, pp. 32-34.
113/ Licensing Board Order Relative to PG&E's Motion for Low Power Testing, Oc tober 2, 1980.
114/ See Answer and Opposition of Governor Edmund G. Brown Jr. to Motion of PG&E for Licenses for Fuel Loading and Low Power Testing, Aug. 4, 1980.
e .
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Governor's Subjects whicn quoted PG&E's own words were inadequate, then PG&E's Motion which was quoted by the Governor necessarily was also inadequate. The Board could not properly have it both ways, ruling first that the words were adequate when used by PG&E and later that they were inadequate when used by the Governor. That unlawful double standard, however, is precisely what the Board applied in rejecting Subjects 6-12.
l V. The Licensing Board Erred in Granting Summary l, Disposition of Issues Related to the Water Level l Indicator System.
The Governor's Subject 13115/ and Joint Intervenors' Contention 13116/ questioned PG&E's compliance with NUREG-0737 l
l 115/ Subject 13. Whether the licenses should issue prior to installation by PG&E of a reliable and unambiguous method of measuring reactor vessel water level.
A. Whether PG&E's proposed system to measure water level in the reactor vessel is adequate for all conditions, including level swell, 2-phase flow, flow blockage and system dynamics. (SER, Supp. 10, p. II.F-9).
116/ Contention 13. NRC regulations require instrumentation to monitor variables as appropriate to ensure adequate safety (GDC 13) and that the instrumentation shall directly measure the desired variable. IEEE 279, S4.8, as incorporated in 10 CFR 50.55a(h)), states that:
"To the extent feasible and practical protection system inputs shall be derived from signals which are direct measures of the desired variables."
! Diablo Canyon has no capability to directly measure the
- water level in the fuel assemblies. The absence of such
! instrumentation delayed recognition of a low-water level
! condition in the reactor for a long period of time. Nothing )
l proposed by the Staff would require a direct measure of water level or provide an equivalent level of protection.
The absence of such instrumentation poses a threat to public health and safety.
_ gn _
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l Item II.F.2, " Instrumentation for Detection of Inadequate Core Cooling." The Board admitted these issues, but limited consideration only to whether PG&E would install its reactor vessel level instrumentation system ("RVLIS") before fuel load.ll7/ When PG&E demonstrated that it would install the RVLIS in July 1981, the Board granted summary disposition.110/
The Board erred in granting summary disposition. While the issue was initially focused on timing, the Governor and Joint Intervenors, af ter completing discovery, demonstrated that serious substantive questions existed whether the PG&E RVLIS would in f act satisfy the NUREG-0737 requirement. Indeed, the Governor submitted the detailed affidavit of an expert consultant,ll3/ who demonstrated the sabstantial inadequacies of the PG&E design. Such inadequacies include:
(a) The reading of reactor vessel level does not meet the requirement of being unambiguous and easy to interpret. There are conditions where the PG&E RVLIS provides an erroneous or uncertain reading of water level.
(b) The PG&E RVLIS does not provide coverage for all types of transients or accidents and thus might provide ambiguous or misleading information to :he operator.
Coverage is lacking under conditions of void redistribution, level swell, coolant pumps being turned on or off, small breaks in the vessel head, and anticipated transients without scram.
117/ Prehearing Conference Order, pp. 23,.35.
118/ Licensing Board Memorandum and Order, April 30, 1981, p. 6.
119/ Af fidavit of Gregory C. Minor Concerning Issues Related to Vessel Level Measurement, Exhibit 19 to Opposition of Governor Edmund G. Brown Jr. to the NRC Staff and PG&E Motions for Reconsideration and Summary Disposition, April 24, 1981.
i o .
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l l (c) The RVLIS design has not been fully tested or proven
. over the spectrum of postulated accident conditions and cannot, therefore, be evaluated as an unambiguous indication.
(d) The description of PG&E's RVLIS is unclear as to the number of data processors and the algorithm used to create the displays. If there is only one data processor, it is vulnerable to single failure and/or erroneous indications on each of the redundant t
displays. If there are two processors, there is no indication of how the operator is to deal with a discrepancy in the two output displays. This is an l ambiguous condition which could easily mislead or
- confuse the operator. The system also has two l additional points of potential single failure at the i
. vessel penetration points used for sensing pressures l l for the differential pressure instruments. Plugging or l l blockage of these points could provide an ambiguous and erroneous indication.
l (e) The data processor (s) and the displays are not required l to be qualified for the serious seismic conditions l i which the plant may experience. Thus, there is no
! assurance that the system will survive a severe earthquake. In the event the data pro:essor fails or one of the redundant displays fails, tnere is no indication of the failure or which of the redundant l
display devices the operator is to rely upon.120/
Notwithstanding the foregoing facts, the Licensing Board granted summary disposition of the water level indicator issue l
solely on the basis that the RVLIS would be installed by July 1, 1981. The Board thus treated a serious issue of technical safety i
as a mere matter of pro forma timing. Clearly, the Board 1
concerned itself only with the date on which the RVLIS would be i .
l , installed, and not on the question whether the RVLIS to be installed on that date was adequate and in compliance with NUREG-0737 requirements. The Board did not even mention, much less rule on, the sworn evidence that the RVLIS was inadequate. This 120/ See Af fidavit of Gregory C. Minor, supra note 119.
I i .. . _- . - - - __ . - .- _
l . ,
was a serious legal error of the Board, because there could be no justifiable basis upon which to grant summary disposition in the face of the factual dispute presented here. Indeed, when the Governor confronted the Board with evidence of PG&E's failure to comply with this NUREG-0737 requirement, the Board could not l lawfully ignore that matter as it did. Jnder settled legal principles, the Board was required, at a minimum, to confront the facts and to provide reasons for rejecting the Governor's arguments and evidence.121/
VI. The Licensing Board Erred in Failing to Require Preparation of the Requisite Environmental Analysis.
l The Licensing Board reached its decision on PG&E's request i for a low power operating license without considering the environmental impacts of that decision and without requiring the Staff to prepare an environmental analysis of PG&E's low power test program. This is contrary to the requirements of the NRC's regulations, 10 C.F.R. Part 51, which specify that the l
environmental analysis of PG&E's proposal for low power operation be, at the minimum, preparation by the Staff of an environmental E.g., Public Service Co. of New Hampshire (Seabrook Station, 121/
Units 1 and 2), ALAB-4 2 2, CCH Nuc. Reg. Reptr . 1 3 0,216, a t
~
28,124-25 (1977). On May 5 and May 7, respectively, tLa Governor and Joint Intervenors moved the Board to reconsider the grant of summary disposition in ~ view of the strong evidence that the PG&E RVLIS was inadequate. See Request of Governor Edmund G. Brown Jr. for Reconsideration of Board's Order Granting Summary Disposition of Contention 13; Joint l Intervenors' Motion for Reconsideration of ASLB's l Disposition of Contention Thirteen. Without providing any l reasons why the Governor's evidence was incorrect, the Board denied these motions on May 11, 1981.
l l
I impact appraisal ("EIA"). The failure of the Staff to prepare such an EIA, and of the Goard to require such an EIA, means that I
any low power license issued by the NRC would be unlawful.
l Indeed, the failure of the NRC to comply with its own ,
t l l environmental regulations also places the agency in violation of ,
I the APA, the National Environmental Policy Act ("NEPA"), and the I regulations of the Council on Environmental Quality ("CEQ").
l j The NRC's regulations require a specific environmental l
analysis of requests for licenses to load fuel and to perform low power tests. Thus, Section 51.5(b) states:
l l Many licensing and regulatory actions of the Commission other than those listed in paragraph (a) may or may not require preparation of an environmental impact statement, depending upon the circumstances. In determining whether an
. environmental impact statement should or should l
not be prepared for such an action, the Commission shall be guided by the Council on Environmental I Quality Guidelines, 40 C.F.R. 1500.6. Such other I
actions include:
i (3) Issuance of a license to operate a power reactor . . . at less than full power . . . .
(emphasis supplied).
The NRC's regulations in Section 51.5(c)(1) further provide:
The environmental impact of proposed licensing and regulatory actions listed in paragraph (b) will be evaluated and if it is determined that an
! environmental impact statement should be prepared, I a notice of intent will be published and distributed in accordance with S 51.50(d) and draft and final environmental impact statements will be prepared. If it is determined that an environmental impact statement need not be l prepared for an action listed in paragraph (b), a negative declaration and environmental impact l
appraisal will, unless otherwise determined by the Commission, be prepared in accordance with S 51.7 and S 51.50(d). (emphasis supplied).
j
~
l 4 .
l l
1
) Thus, prior to proceeding on PG&E's request to load fuel and ]
conduct low power tests at Diablo Canyon, Sections 51.5(b) and 1
51.5(c)(1) require that: (1) the environmental impact of fuel loading and low power testing of the Diablo Canyon facility "will i
be evaluated;" and (2) an EIS on low power operation will be prepared or, if it is determined that an EIS is not required, an EIA and negative declaration will be prepared.122/
Notwithstanding the express requirements of Sections 51.5(b)(3) and 51.5(c)(1), the Licensing Board ruled that no EIA l
( was necessary. Ra the r, the Board ruled that since an EIS had been prepared for full power operation, this EIS obviated the need for any environmental analysis of low power operation.123/
1 122/ The only ex-eption to the requirement for preparation of an EIA is where the Commission "otherwise determine (s]." There would be no casis in this case for a determination not to prepare an EIA, particularly for the technical and legal i reasons discussed herein. Indeed, the Commission uas not made any such determination in this case. It could not because there is no way to ignore the strong nexus between low power operation of Diablo Canyon and the inevitable environmental consequences of the type specified in Part 51.
123/ See Prehearing Conference Order, pp. 3-7. The Board cited several cases in support of its ruling. See Northern States Power Co. (Prarie Island Units 1 and 2), ALAB-455, 7 NRC 41 (1978); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALA3-161, 6 AEC 1003 (1973); Georgia Power Co. (Vogtle Units 1 and 2), ALAB-291, 2 NRC 404 '1975);
Detroi t Edison Co. (Enrico Fermi Unit 2), LBP-78 11, 7 NRC 3 81 (1978); Portland General Electric Co. (Trojan Nuclear Plan t) , LBP-78-40, 8 NRC 717 (1978). However, none of these cases even addresses low power operating licenses. Indeed, Maine Yankee, Georgia Power, Detroit Edison, and Northern States Power did not even pertain to Section 51.5(b) . While Portland General did reference Section 51.5(b), the case involved interim operation pending upgrade of seismic design of the control building. The decision not to prepare an EIA or EIS rested on a finding that no differing impacts would result from those considered in earlier decisions. This is different from the instan't case where sharply differing
' Continued) l l
[ me
The Board erred in its ruling: first, because of the requirements
. of the regulations; and, second, because of the necessity for an EIA on the facts of this case.
The existence of a full power EIS is legally irrelevant to the question whether an EIA is necessary for low power operation o f Diablo Canyon. Indeed, while Section 51.5(a) specifies that EIS's must be prepared for full power operating licenses, the requirement for an EIA or an EIS for low power operation is in a separate and distinct provision of the regulations (i.e., Section
- 51. 5 ( b) ( 3 ) ) . Thus, Section Sl.5(b) separately mandates prepara-tion of an EIA, or if necessary an EIS, for operation of a plant a t low power. This is the express directive of the regulation; there is no exception even where, as in this case, a full power EIS has been prepared. The Board simply was not permitted to l
ignore this requirement, and the Board's action 'n doing so remains a continuing violation of law before this Appeal Board l and the Commission. There is no basis upon which the NRC can
! justify this failure to follow the NRC's own regulations.124/
l The necessity for preparation of at least an EIA in this proceeding is not a mere technicality. It is the means through which the NRC must determine how to comply with NEPA. In fact, impacts -- resulting particularly from potential delay or denial of licensing -- are postulated.
124/ See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 540, 545 (1959); United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Pearce v. Director, Of fice of Workers' Compensation, 647 F.2d 716, 726 (7th Cir. 1981); Nader v.
Nuclear Regulatory Commission, 513 F.2d 1045, 1051 (D.C.
Cir. 1975); Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 224 (D.C. Cir. 1959).
1
e .
the EIA is a " mini-EIS," intended to demonstrate whether a full EIS is required. If the EIA demonstrates an 3IS to be unnecessary, the EIA is intended to provide " convincing reasons" why it is not.125/ Further, an EIA is essential to assure reviewing agency authorities and the courts that the requisite "hard look" at environmental issues has been taken by tha Staff _126/
The EIA is particularly necessary here because the full power EIS previously prepared for Diablo Canyon does not
" s ub s ume " the factual issues of low power testing. Indeed, the full power EIS does not consider: (1) the costs and benefits of low power testing at this time, which testing the Governor contends is premature given the outstandirg seismic, security, and emergency planning issues and the Subjects and Contentions which were erroneously rejected by the Licensing Board; or (2) the "need" for PG&E to conduct its testing program prior to issuance of a full power license, if ultimately issued. Indeed, the "need" for the proposed low power testing is itself a matter which specifically must be considered by the NRC in the EIA.
Thus, CEQ, whose regulations are binding on all federal 125/ See Mid-Shiawassee Cou.nty Concerned Citizens v. Train, 408 L F. Supp. 650, 654 (E.D. Mich. 1976), aff'd, 559 F.2d 1220 (6th Cir. 1977); S. W. Neighborhood Assembly v. Eckard, 445 F. Supp. 1195, 1200 (D.D.C. 1978). See also Maryland-National Capital Pk. & Planning Comm. v. U.S. Postal Serv.,
l 487 F.2d 1029, 1039-41 (D.C. Cir. 1973).
1 126/ See Northern Indiana Public Service Co. (Bailly Generating Station, Unit 1), ALAB-303, CCH Nuc. Reg. Rptr. 1 30,031 See also Scientist.s' Institute for Public l (1975).
In fo rma tion, Inc. v. Atomic Energy Commission, 481 F.2d 1079, 1094-95 (D.C. Cir. 1973).
1 60 -
agencies,127/ including the NRC in this case, requires that an EIA:
Shall include brief discussion of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed action and citernatives, and a listing of agencies and persons consulted.128/
In this proceeding, the Governor contends that there is no need for PG&E to conduct a low power test program at this time because serious safety issues, including seismic, security, and emergency preparedness, remain to be finally resolved by the Commission. No benefit could be derived from PG&E operating th2 Diablo Canyon facility in the face of such sharply contested safety issues. This is particularly true because the economic and environmental costs of operating the facility at low power followed by denial or delay of the full power license have never even been considered.
Indeed, the contamination of the Diablo Canyon facility l
during low power operation would significantly affect the l
character and status of the facility and its relationship to the surrounding communities. If a full power license were subse-quently denied or delayed by the Commission, the reactor would have to be treated both technically and legally under conditions that have not been considered by PG&E or the Staff in the l environmental analyses previously prepared in the full power l EIS. Technically, the issue would then be to specify the means l
127/ See 40 C.F.R. S 1500.3.
128/ 40 C.F.R. S 1508.9(b) (emphasis supplied).
J through which the contaminated facility should be decontaminated or maintained without undue risk to the public. Legally, the issue would be to stipulate the terms and conditions under which to decommission the facility or to ensure satisfactory safety and safeguards procedures for the extended future. This entire pro-blem could be avoided by the simple alternative of the Commission d.enying PG&E authorization to operate at low power until such time as the Commission resolves with finality the outstanding issues. Indeed, the Governor submits that the NRC's continuing mistaken rush to judgment on the low power issue would be sharply revealed if the NEPA requirement for an EIA were now properly imposed by this Appeal Board.
l Further, if Diablo Canyon were operated at low oower prematurely, it is possible that workers would late.r need to be j exposed to contaminated systems and equipment in order to complete post-TMI retrofit items or to carry out maintenance, i
repairs, or decommissioning. There has been no consideration of the environmental impacts of such worker exposures. However, the Cc.nmission itself has previously ruled that worker exposure represents a serious environmental issue: indeed, requiring an EIS to be prepared for the Surry Station because of the potential exposures to workers in connection with repair of steam genera-tors.129/ Clearly, if steam generator repair at Surry required an EIS, there can be no reasoned basis for the NRC failing to 129/ See Virginia Electric and Power Co. (Surry Nuclear Power Station, Units 1 and 2), CLI-80-4, CCH Nuc. Reg. Rptr.
l 1 30,463 (1980).
l
- - _ - _ _ - _ - - . - _ _ . . _ _ -_ . .- -- ..62
prepare at least the required EIA for PG&E's low power testing program.
The Governor contends that the required EIA would clearly demonstrate that: (1) there is no need for low power testing at this time; (2) the potential costs and environmental impacts of low power operation substantially outweigh any benefits which might be derived from premature testing; and (3) the environ-mental costs and impacts associated with such premature low power operation are significant.130/ The EIA would narrowly focus the environmental considerations surrounding PG&E's low power testing program and, thus, presanably permit a rational a'nd fully informed decision to be made in accordance with the NRC's regala-tions and NEPA's purpose.
By refusing to follow the requirements of Part 51, the Staff and Licensing Board have ignored the most basic mandate of NEPA.
The NEPA prc3ess is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.131/
The Board in this ca'se has thus endorsed and furthered a flagrant disregard for environmental value. rather than the " understand-ing of environmental consequences" which NEPA is intended to l
130/ See City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975)
(where substantial questions are raised concerning the potential impacts of a proposal, it is not reasonable for the agency, prior to study, to conclude no EIS is required).
1,3,l/ 4 0 C . F . R. S 1500.l(c) (empliasis supplied) .
foster.132/ This disregard for NEPA's purpose, and the plain
- violation of applicable NRC regulations and CEQ regulations that govern the NRC, compel reversal of the Licensing Board 's deci-sion. Indeed, without compliance with NEPA and the NRC's regu-la tions thereunder, no low power license can be lawfully issued to PG&E.
I l
I i
l I
l 132/ The Appeal Board has noted that hEPA requires the NRC to l choose the alternative which minimizes adverse environmental l impacts to the greatest extent possible when balanced with I otbar relevant values. See Kansas Gas and Electric Co.
(Wolf Creek Nuclear Generating Station, Unit 1), ALAB-f21, CCH Nuc. Reg. Rptr. 1 30,061 (1976). By failing to prepare an EIA, the Board has ref used even to look at the question l whether PG&E's program minimizes such impacts, or to iden-tify alternatives which could provide the necessary ccotext for assessment of PG&E's proposed testing program.
VII. Conclusion For the foregoing reasons, the Governor submits that the Licensing Board's July 17, 1981 Partial Initial Decision must be reve rsed .
Respectf ully submitted, Byron S. Georgiou i Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814 f' -- ~ ,
f<5-- Y, . . l- T< L, _ . . ~
Herbert H. Brown Lawrence Coe Lanpher HILL, CHRISTOPHER AND PHILLIPS, P.C.
1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Governor Edmund G. Brown Jr.
of the State of California i
September 2, 1981 l
l r
I ~
1N ed.Si USSE REFER 20 S Sl-1 g+ '. w'- ' . o% UNITED STATES j f g 7f*4) NUCLEAR REGULATORY COMMISSION (EXHIBIT A) 3 .. cI 3 1 wassiscros. o.C. rosss ACTICN ; Stello y,%s,'O o
g, &Uq/
April 22, 1981 Cys: Dircks o..
3FFICE OF THE Cornell SEC0ETARY ehm Grimes Perkins Denton MEMORANDUM FOR:
Hall er William J. Dircks, Executive Director for Operations FROM: Samuel J. Chilk, Secreta
SUBJECT:
SECY-81-188 - EMERGENCY P, D REDNESS This is to advise you that the Commission (with all Commissioners approving) has approved the changes to page 2-11 of NUREG-0737 as provided in Enclosure 3 of the subject paper.
I The Office of Inspection and Enforcement was informed of
- this action by telephone on April 22, 1981.
[
cc: Chairman Hendrie Commissioner Gilinsky Commissioner Bradford Commissioner Ahearne Commission Staff Offices Director, Inspection and Enforce 1ent ,
CONTACT:
E. W. McGregor (SECY)
L 41410 '
t Q Q l'( OE gx o ,cs u t O l .. _ _
- _