ML20209D368
| ML20209D368 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/26/1984 |
| From: | Briggs W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20209D027 | List: |
| References | |
| FOIA-86-197, TASK-AII, TASK-SE SECY-84-377, NUDOCS 8410110097 | |
| Download: ML20209D368 (81) | |
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- / 0 /L p[ l For: The Commission ! From: William H. Briggs, ., Solicitor I
Subject:
SAN LUIS OBISP OTHERS FOR PEACE, ET
; AL. V. U.S. NUCLEAR REGULATORY ! COMMISSION, ET AL., NO. 84-1410 ,
i
.l Discussion: Attached is a copy of the brief which the Commission filed in response to the challenge to the Diablo Canyon full-power operating license. Petitioners' reply brief is due by October 8.
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William H. Briggs, Jr. i solicitor
Attachment:
f Brief 1 i I
Contact:
E. Leo Slaggie, GC l X-43224 \, DISTRIBUTION: Comis'sione)s EDO N ' 3 OGC ELD ' I OPE ACRS ' l OI ASLBP l
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i I2 ** . _ _ . . . ~ . .' IN THE j UNITED STATES COURT OF APPEALS
- FOR THE DISTRICT OF COLUMBIA CIRCUIT f
I No. 84-1410 1 SAN LUIS OBISPO MOTHERS FOR PEACE, et, _aj,. ,
- .- Petitioners, v.
]
i
.l U.S. NUCLEAR REGULATORY COMMISSION, g al. ,
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Respondents,
.: PACIFIC GAS AND ELECTRIC COMPANY,
! Intervenors.
}
L . .. j ON PETITION TO REVIEW ORDERS OF THE j UNITED STATES NUCLEAR REGULATORY COMMISSION
$ BRIEF FOR RESPONDENTS i
HERZEL H. E. PLAINE F. HENRY HABICHT II General Counsel Assistant Attorney General
'I ! . MARTIN G. MALSCH PETER R. STEENLAND, JR.
l Deputy General Counsel Chief, Appellate Section WILLIAM H. BRIGGS, JR. JACQUES B. GELIN Solicitor Attorney Land and Natural Resources Div. l -) E. LEO SLAGGIE U.S. Department of Justice Deputy solicitor Washington, DC 2055S
- RICHARD L. BLACK
; SHELDON L. TRUBATCH E. NEIL JENSEN
~j CAROLE F. KAGAN A. LAURENCE RALPH Attorneys U.S. Nuclear Regulatory Commission
! - Washington, DC 20555 l 1 , l SEPTEMBER 1984 I
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.] TABLE OF CONTENTS Page I
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 1
- 1. Nature of the Case . . . . . . . . . . . . . ._._,_ 1 ,_
a
- 2. Issuance of Construction Permits and
',) 4 Discovery of the Hosgri Fault . . . . . . . .".," 4 ~~~ ~]
1 Y1 3. NRC Ooerating License Adjudicatory - ' ' ' Proceeding and Decisions . . . . . . . . . . . . 6
- 4. Low-Power Proceeding . . . . . . . . . . . . _. a , _ ,9 , _ _
i Reopened Operating License 5. IT '.'~ ~ ~ 11
~ - -
Proceeding -- Design Verification . . . .
- 6. Motion to Recoen the Operating ~~~ - - ~ ~ ' '
License Proceeding -- Construction
, Quality Assurance. . . . . . . . . . . . . . . . 13
. 7. Non-Adjudicatory Investigations '"
i and Actions on Allegations of QA ' ' 4 Deficiencies . . . . . . . . . . . . . . . . . . 14
- 8. Commission Decisions on Full- y Power Licensing . . . . . . . . . . . . . . . . 17
- 9. Judicial Proceedings . . . . . . . . . . . . . . 19 l
SUMMARY
OF ARGUMENT . . . . . . . . . . . . . . . . . after 3 p.21 4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 22 I. THE COMMISSION WAS NOT REQUIRED TO
.I #'
CONSIDER THE ENVIRONMENTAL ZFFECTS
.. OF A CORE-MELT ACCIDENT AT DIABLO CANYON . . . . . . . . . . . . . . . . . . . . . 24
.tr .
-t II. THE COMMISSION DID NOT ERR WHEN IT l FOUND THAT THE REACTOR OPERATORS AT
- s. DIABLO CANYON WERE QUALIFIED TO j OPERATE THE FACILITY SAFELY AT FULL 1 POWER . . . . . . . . . . . . . . . . . . . . . 32 i 4.;
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Page I. THE COMMISSION'S DECISION NOT TO GIVE SPECIFIC CONSIDERATION TO THE EFFECTS OF A SEISMIC EVENT ON EMERGENCY PLANNING WAS REASONABLE AND DID NOT VIOLATE THE ATOMIC ENERGY ACT OR THE COMMISSION'S REGULATIONS . . . . . . . . . . . . . . . . . . 40
'~ ~ ~ ~ "
. THE COMMISSION ACTED REASONABLY AND COMPLIED WITH ALL STATUTORY AND REGULATORY REQUIPIMENTS IN DETERMINING NOT TO REOPEN THE RECORD ON CONSTRUCTION QUALITY ASSURANCE . . . . . . . . . . . . . . . . . . . 47 BEFORE AUTHORIZING OPERATION OF DIABLO CANYON AT FULL POWER THE COMMISSION RESOLVED ALL RELEVANT DEFICIENCIES IN DESIGN QUALITY ASSURANCE . . . . . . . . . . . . . . . . . . . 58
_ . ASSUMING, ARGUENDO, THAT THE COURT FINDS LEGAL ERROR, IT , WOULD BE INAPPROPRIATE TO ENJOIN THE ISSUANCE OF THE ' DIABLO CANYON LICENSE UNLESS THAT LEGAL ERROR DIROCTLY AFFECTS THE SAFE OPERATION OF THE PLANT . . . . . . . . . . . . . . . . . . 61 NCLUSION . . . . . . . . . . . . . . . . . . . . . 69 PENDIX i 11 n .. . . - . -.- - -- . .. --. . .
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. . . . . - - - - ~ . . . . . . . . . - . . . . . - . . . . . . . . . . . . . . . . . -
l 1 CITATIONS 1 I Cases l 1 Page i - l A. Judicial Decisions ., _ , , _
.- Alaska v. Andrus, 188 U.S. App.D.C. 202,
) 580 F.2d 465, vacated in part on other grounds sub ~~ ~ ~ " ~
{ nom., Western Oil & Gas Ass'n v. Alaska, ~ I3T U.S. 922 (1978).................................." 63,64 -"
! Baltimore & Annapolis R.R. v. Washington ~ ~ ~ ~ ' ~ ~ ~ ~
l Metropolitan Area Transit Comm'n, 206 U.S.ApplD.C. - - - - i 397, 642 F.2d 1365 (1980)......................l.~..~..- 38'
- r. e
~~~'
Baltimore Gas and Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983)............ ~3 0 , 3 5 ', 6 5 '
- Carolina Environmental Study Group v. U.S., .
166 App. D.C. 416,.510 F.2d 796 (19 75 ) . . . . . . .T2.'. . . . .~ 2 4 , 2 6',31
*Carstens v. NRC, No. 83-1879 (D.C. Cir. , Sept. 7, j 1984)................................................ 23,35,54 Columbia Broadcasting System v. Federal Communica-
' _. tions Comm'n, 147 U.S. App.D.C. 175, 454 F.2d 1018 ~
(1971)............................................... 38
~' EDF v. Marsh, 651 F.2d 983 (5th Cir. 1981)........... 63
( i i j Environmental Defense Fund, Inc. v. Andrus, l j 619 F.2d 1364 ( 10 th Cir . 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . 26 l Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060 (8th Cir. 1977)........................ 26 Greyhound Corp. v. Interstate Commerce Comm'n, 179 U.S. App.D.C. 228, 551 F.2d 414 (1977)............ 38 Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334......................................... 61 i
~
ICC v. Jersey City, 322 U.S. 503 (1944).............. 51
-1 Cases or authorities chiefly relied upon are marked by asterisks.
iii
)
. _ ... . _ i % ,u i . ~. T -. - - .. ... - .. - _ ... . - - - . . - .
< . Page Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983).. 64 Mobil Oil Corp. v. ICC, 222 U.S. App.D.C. 174,,___ ___.,. ,. 685 F.2d 624 (1982).................................. 51
' NRDC v. Morton, 148 U.S. App.D.C. 5, 458 F.2d 827 -~~
TOY 2)...............................................~~ 26 NRDC v. NRC, 196 U.S. App.D.C. 354, ~
~~
TUTF.2d 1261 (1979)........................'..'....... 62,63 i 4 ~ Power Reactor Development Corp. v. Electrical Union, ~ j 367 U.S. 396 (1961).................................. 27 i
, Realty Income Trust v. Eckerd, 183 U.S. App.D.C. 426,_,_,_,._. . ,_
564 F.2d 447 (1977).................................. 64,65 i Rondeau v. Mosinee Paper Corp., 422 U.S. 49_(lj975) . . . 61 _ _. I
'. Southern Oregon Citizens Against Toxic Spray, Inc.
'j ,
- v. Clark, 720 F.2d 1475 (9th Cir. 1983).............. 31 Trout Unlimited v. Morton, ~
509 F.2d 1276 (9th Cir. 1974)........v ........'...... 26 i i Union of Concerned Scientists v. Nuclear i Regulatory Con: mission, 299 App. D.C. 92, 711, F.2d_' _ l 370 ( D . C . Cir . 19 8 3 ) . . . . . . . . . . . . . . 1. . . . . . . . . . . . . . . . . 66,69 Union of Concerned Scientists v. NRC, 1 No. 82-2053 (D.C. Cir. May 25, 1984)................. 45 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).................................. 24 l 1* Warm Springs Dam Task Force v. Gribble, l 621 F.2d 1017 ( 9 th Cir . 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . 26 la
*Weinberger v. Romero-Barcelo, q 456 U.S. 305 (1982).................................. 61,63
, i. Western Oil tr Gas Ass'n v. Alaska, 439 U.S. 922 (1978),................................. 63 . 9[
.
- Wisconsin v. Weinberger, 578 F. Supp. 1327 (W.D.
I Wisc. 1984), No. 84-1569 (7th Cir. Aug. 20, 1984).... 28,63,64, 65,66 l i I I i iv I_ _
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4 Page I B. Commission Decisions
; Kansas Gas and Electric Co. (Wolf Creek Generating _,,
t, Station, Unit 1), 7 NRC 320 (1978)................... 51 ,,
; Southern California Edison Co. (San Onofre Nuclear . ._
[ Generating Station, Units 2 and 3), CLI-81-33,
~~ ~~ ~~
14 NRC 1091 (1981)................................... 18 t I j STATUTES 5U.S.C.558(c)........................................... 37 42 U.S.C. 4321............................................ . 24 1 5 4 1 REGULATIONS l 3 . 10 C.F.R. 2.206........................................... 15 10 C.F.R. 2.764........................................... 9 J 10 C . F . R . 2 . 7 6 4 ( f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9
'I 10 C.F.R. Part 50, Appendix A............................. 59 I
10 C.F.R. Part 50, Appendix B............................. 7 f 10 C.F.R. Part 50, Appendix E............................. 18 10 C.F.R. 50.47........................................... 18 10 C . F . R . 5 0 . 4 7 ( a ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 I 10 C . F . R . 5 0 . 5 7 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1 10 C.F.R. 51.51........................................... 65 i 10 C.F.R. 55.23........................................... 37 10 C . F . R . 5 5 . 2 5 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,38 1 l
.a . .
ADMINISTRATIVE DECISIONS
.}
J j 3 ALAB-644, 13 NRC 903 (1981)................................ 4,5,6, 7 19,44
'q ALAB-756, 18 NRC 1340 (1983).............................. 13,14,47,
~) 49,51,52,54,57
.,q ALAB-763, 19 NRC 571 (1984)............................... 11,12,48, 58,59,60 ALAB-775, 19 NRC (June 28, 1984)...................... 12,14,47, 55,56 ALAB-775A, 20 NRC (Aug. 8, 1984)......................
.s 47,56
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1 j CLI-81-22, 14 NRC 598 (1981).............................. 9 1 CLI-81-30, 14 NRC 950 (1981).............................. 10
- j. CLI- 8 4 -4 , 19 NRC 9 3 7 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 j CLI-84-5, 19 NRC 953 (1984)............................... 10,11,16, j- CLI 12, 20 NRC (Aug. 10, 1984)..................... 18,40,42, 20,32,38 i 43,68 CLI-84-13, 20 NRC (Aug. 10 , 19 8 4 ) . . . . . . . . . . . . . . . . . . . . 1,14 ,17 , 2 0 ,
32,34,47 CLI-84-14, 20 NRC ( Aug . 2 0 , 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . 12,13,59 LBP-79-26, 10 NRC 453 (1979).............................. 5,6 LBP-81-21, 14 NRC 107 (1981).............................. 48 LBP-82-3, 15 NRC 61 (1982)................................ 44 j LBP-82-70, 16 NRC 756 (1982).............................. 8 J MISCELLANEOUS NUREG-0660, "NRC Action Plan Developed as a Result of
, the TMI-2 Accident" (August 1980)......................... 29 NUREG-0737 " Clarification of TMI Action Plan Requirements" (Novemb er 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Federal Register:
45 Fed. Reg. 40101 (June 13, 1980)................... 25,27,30 i ., M S 4 ' I
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! l QUESTIONS PRESENTED l l
- 1. Whether the National Environmental Policy Act required the Nuclear Regulatory Commission to consider,
. prior to authorizing operation of the Diablo Canyon nuclear generating facility, the impacts of major reactor accidents ,j having significant offsite consequences, where the Commis-I, sion has found the probability of such accidents so low as l to be remote and speculative.
- 2. Whether the Commission acted reasonably and in accord with its regulations in finding that the operating
} staff at Diablo Canyon was qualified to operate the plant
. safely, at full power, where the Commission followed seven-
; teen years of unbroken Commission practice and regulatory
. I interpretation in evaluating the experience of the
, individual reactor operators and further relied on a favor-able evaluation of the operators' performance during low-1 power testing of the facility.
- 3. Whether the Commission's decision not to
, , consider the effects of severe earthquakes on planning for a t r radiological emergency at Diablo Canyon was reasonable and
')
in accord with Commission regulation, where the Commission 4.- y determined that the probability that an earthquake would
'l hr cause or occur proximate in time with a radiological ha emergency was too low to justify the additional delay and Le l p expense of such consideration, in view of the, at best, l ;3 0
marginal increase in safety which such consideration might add.
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- 4. Whether the Commission acted reasonably and complied with all statutory and regulatory requirements in
.: determining not to reopen the record on construction quality assurance at Diablo Canyon when petitioners' evidence demonstrated neither a substantial safety concern nor the possibility that it would have affected the original find-ings on construction quality assurance.
- 5. Whether, before authorizing operation of Diablo Canyon at full power, the Commission adequately dealt with all allegations concerning deficiencies in design quality assurance at Diablo Canyon by holding extensive hearings, conducting detailed vetrification programs, and examining for safety significance every allegation concern-ing design deficiencies at Diablo Canyon.
- 6. Whether, if the Court finds legal error in the commission's licensing decision, it should enjoin
.1 issuance of the license in the absence of a showing that any .. such error bears directly on safe cperation of the plant.
4 P RELATED CASES In'the order of August 17, 1984 granting peti-j tieners' stay motion, the Court scheduled for argument on d the same day and before the same panel as this case, the j related cases of San Luis Obispo Mothers for Peace, et al. (1 v. NRC, No. 81-2035 and consolidated cases. Those consol-
'.1 idated cases, which involve the issuance of a lcw-power i A operating license for the Diablo Canyon nuclear pcwer +
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I -! reactor, have already been briefed and are before the Court.
; As allowed by the Court's August 17th order, the respondents I .will incorporate by reference those issues and matters briefed in No. 81-2035 which are pertinent here. See i
j Respondents' Brief in No. 81-2035, June 14, 1984, refiled
't I with Joint Appendix citations on August 31, 1984 (" Low-Power Brief").
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i t IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT I
~
)
i SAN LUIS OBISPO MOTHERS )
; FOR PEACE, et al., ) ,
}
Petitioners, )
)
J- v. ) No. 84-1410
, )
U.S. NUCLEAR REGULATORY )
- COMMISSION, g al., )
1
)
l Respondents, )
! )
- PACIFIC GAS AND ELECTRIC )
! COMPANY, )
1 ) l Intervenors. ) d
)
, BRIEF FOR RESP'ONDENTS J STATEMENT OF THE CASE 4 3.g
- 1. Nature of the Case.
0
< This case brings to the Court the question whether
.,l j the operating license that the Nuclear Regulatory Commission
'l i
,,n ("NRC" or " Commission') has authorized for Unit 1 of the Diablo Canyon nuclear generating station should become 4
- effective so that Pacific Gas and Electric Company ("PGEE") ,
j i
, the licensee, can bring that unit of the plant to full-power l : ; operation. The Commission's order of August 10, 1984, t
e I t b
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u .- i l - programs which, taken together, added greatly to the burdens j l l- that the licensing process normally imposes on the Commis-
'1
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sion and the parties. ; d2 ~ As this petition for review demonstrates, these
~ ~l 1
j.. d.j
' proceedings 'did not eliminate all controversy. The peti-b- - -
tioners believe the commission has not inquired deeply
.i*
enough into the issues, yhile PGsE might reasonably feel that the effort required to obtain a license for Diablo
- e i
~ Canyon has become unusually onerous. The Commission must 1
deal with such sharply divided views in a manner consistent fj 4 j with its statutory responsibilities. The Commission is obliged to insist that the applicant make showings adequate to meet the licensing standards of the Atomic Energy Act and j: NRC regulations, but in reason and fairness the Commission f i
^j cannot demand more than this or extend the proceedings
.1
- q unduly in the hope of providing to persons opposed to the i plant a degree of reassurance greater than the law requires, l N' The Court must now consider whether to uphold t q 4
against the challenges raised by the petitioners the Com-
;, mission's resolution of certain contested, complex issues of
+
l j science and regulatory interpretation which arose in the u ;- L ,iablo D Canyon full-power operating license proceeding.
- ! ' E Under the standard for review provided by the Administrative
,a 1 Procedure Act the Court should set aside the Commission's I e 0 action in whole or in part only if the Court finds that the
- 4 l
i [1 Commission has acted arbitrarily or capriciously, without i i; adequate basis in the record, or otherwise contrary to law. l 1 l i
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. :. Because of the plant's location, much of the
.j. .- . . - controversy surrounding Diablo Canyon has involved concern i: -- .
about earthquakes and the need to assure a very low prob-j.- :.. . ability that an earthquake might cause an accident resulting
- j. ... . . in a major radiological release. Nuclear power plants are j.-- - designed and constructed to be able to shut down safely
) after the "most powerful earthquake ever expected to occur 4 at the plant site." ALAB-644, 13 NRC 903, 911 (1981).
This , *f . 4 inG= anticipated earthquake is characterized Tn'tlie ~~~ - ~ ~
'l; design requirement for a nuclear plant as the " safe shutdown 'l i
earthquake" ("SSE"). The Diablo Canyon faci.Lity was orig-inally designed to withstand an earthquake of a magnitude 6.75. As a result of the discovery of the Hosgri fault, the SSE for Diablo Canyon was raised from 6.75 to 7.5, and the plant's design was modified accordingly. Id. at 926. The record reflects that this design for an SSE of i
- magnitude 7.5 carries with it an undisputed margin of l 1 safety. One of petitioners' experts testified at the I i
i Licensing Board hearings that he was " unable to state within l 1 { , a reasonable degree of geologic certainty that an earthquake as large as a 6.5 magnitude had or would ever occur in the
,- Hosgri Fault." LBP-79-26, 10 NRC 453, 484 (1979). Another j of petitioners' experts testified that he "did not believe a
! 7.5 magnitude earthquake would be appropriate for the y Hosgri. He believed a 6.5 magnitude would be more appro-l } priate." Id. Moreover, nearly two years later when the
.I Appeal Board reviewed the Licensing Board findings regarding I
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1 5 . J ji 1 t: .. . consolidated and generally known as Joint Intervenors, are 1 I t.r .c. r . ' - the petitioners here. Consistent with NRC practice, -
.: :.. n- adjudicatory hearings on the contested issues were initiated
]- _:. . after the NRC staff completed its environmental. analysis of -
.) operation at Diablo Canyon and its initial safety review of those matters related to the contested issues.4 The adjudi-j -
catory hearings were lengthy (from 1976 to 1979) and vigor-1 . ously contested. l The Licensing Board began publishing decisions in j 1978 as issues were completed in the hearing. Issuance of
' ~ ~
those decisions also started the administrative review process. However, certain other issues addressed at the hearings, including quality assurance,5 were held in l 3 The NRC statutory and regulatory framework is set
- forth in the Appam44v to the Low Power Brief.
i The NRC's environmental and safety analyses of Diablo
.! Canyon are contained in published licensing documents. The NRC issued its environmental analysis of operation in a
'j
. Final Environmental Statement ("FES") on Diablo Canyon i .I shortly after the cperating license hearing was noticed in i 1973. The FES was supplemented by an Addendum in May 1976.
- PG&E submitted its safety analysis in a Final Safety Analysis. Report ("FSAR") and in 1974 the NRC staff issued its independent safety review in a safety Evaluation Report
("SER"). As is common in complex licensing proceedings, the FSAR and SER, in particular, have been supplemented from .
, time to time since 1974. Supplements 24-27 to the SER were
- issued in July 1384. i i
; 5. Quality assurance" comprises those planned and .. b systematic actions necessary to provide adequate confidence ; . that a structure, system or component will perform ; satisfactorily in service. 10 C.F.R. Part 50, Appendix B. ; ? Petitioners' initial quality assurance issue was rejected by 0 the Licensing Board because their contention was filed late, V
[ Footnote Continued] i 1
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'I l j . .. ;_ .its. design quality assurance program. A brief summary of l l
}- :- . events during those two years follows to provide background l i-
. necessary to understanding the commission's decision to
.: __ 2 authorize full-power operation at Diablo Canyon. :. -- . _ -
d ~~
- 4. Low-Power Proceed.ing.
j -- - The history of the low-power operating license proceeding is fully set forth in Respondents' Low-Power g
; Brief, No. 81-2035, at pages 14-22. The events of signifi-j cance to the full-power decision are summarized below. --
i j After a full adjudicatory hearing, the Licensing 1 Board authorized issuance of a low-power license. LBP ; - 21, 14 NRC 107 (1981). Thereafter, the Commission, acting _ pursuant to the "immediate effectiveness" provisions in effect at that time,7 found that the Licensing Board's decision should become effective. CLI-81-22, 14 NRC 598 (1981). On September 22, 1981, the NRC staff issued the low-power license. In late September 1981, prior to commencement of i fuel loading, PG&E discovered and reported to the NRC errors in the seismic analysis of certain pipe supports. ~PGEE
, committed itself informally to defer fuel loading until the
- 1 i errors were corrected. Then following the discovery of 5
'i 7 l .I See 10 C.F.R. 2.764 (f) (1981 ed.). Current
, regulations in 10 C.F.R. 2.764 do not require an "immediate j effectiveness" review of a decision authorizing low-power i operation. l N I i
) --
9
- _-n . , n . ,.---....- - _ _ . - - - . - - . - _ _ - - - - - - _- - ,- -~- -- .
1
- \
- . .. the Commission reinstated the authority to conduct hot L.:- - .- : : system precriticality testing, CLI-84-2, 19 - NRC 3 (1984);
..- *:. .::..and, finally, on April 13, 1984, the Commission. completed
. {r.j ..-: :the. reinstatement of the low-power license to-allow-testing - -
;fc.: : 3 :up'to 5% og rated power. CLI-84-5, 19 NRC 453 (1984). . -
;_~ -
- 5. Reopened Operating License Proceeding -- Desian
,~. , , _ .
Verification. -- (., ~ j Several months after the initiation of the design
.g
-,~.- .
1 verification program, the petitioners on June 8,1982 moved the Appeal Board to reopen the record on the issue of t$ie 1 overall adequacy o'f the Diablo Canyon quality assurance a I ("QA") program. That motion was based essentiaily upon the
.j .
j l same information that had prompted the Commission's suspeit-1 4
-l sion of the low-power license as well as the various defi-l '! -
ciencies identified by the verification program up to that a p.
'l time. A similar motion was filed by the Governor of
.]
.{ California on August 2, 1982. PG&E and the NRC staff s
acknowledged that the Commission's reopening criteria had
] , '1 been met for design QA.
i!.} F The Appeal Board granted the requests to reopen ld-j the record to litigate design quality assurance. Indeed, it i a expanded the original basis for the motion to reopen from an l . examination of deficiencies in PG&E's design quality assur-I l j ' ance program to "the question whether the applicant can l I Y demonstrate that (its verification efforts] verify the i
, correctness of the Diablo Canyon design." ALAB-763, 19 NRC 571, 576 (1984) (Brackets in original) (footnote omitted).
i,
; 11 attyyy;'my wm.. >;m;.c7.qWe.W'mmy nn - gjy.y gm ;~ m' - - -
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- y l
l i - 6. t Motions to Reopen the Operating License Proceeding -- ~ 3.. Construction Quality Assurance. - ---- ' On May 10, 1983, the petitioners filed another
- .:.. :: s- --.-. . ..
j- motion to reopen the proceeding alleging the discovery of
~ '
newevidenceofdeficienciesintheconstructh.onQAprogram.
~ ~
l';- - i The Governor of California filed a similar motion on May 18. Extensive responses and affidavits were submitted by PGEE I, and the NRC staff in opposition to these motions. Because ofthevolumeandcomplexityofthefilings,theAppbal
~
1 i Board held a discretionary hearing for four days. The I purpose of this " Mini-hearing" was to determine whether the motions met the strict standards for showing a "significant i
; safety issue" to warrant reopening the record. Because the l
j Mini-hearing was discretionary, the usual rules of practice 1 - did not apply. However, the Board permitted the parties to l cross-examine each others' expert witnesses. I j Following the Mini-hearing the Appeal Board denied i i I the motion to reopen on construction QA issues. ALAB-756, v. 18 NRC 1340 (1983). l The Appeal Board concluded that the q petitioners and the Governor had failed to provide new I
}*
- i i evidence of a significant safety issue which would warrant J.; a i
L [ Footnote Continued] k (J.A.S. at ). CLI-84-14 modified ALAB-763 only to indicate that proposed contentions regarding PG&E's compliance with Appendix A to 10 C.F.R. Part 50 should have 1 been denied because they were raised far too late and l l without the requisite specificity for their admission into
; the reopened proceeding.
- . 13
=~
y .: . - m g g m.m s gl,q9 9 7gy.m y n + , ~ :s . ; .r ~ x mn~1 . 9 :s y. w n~ ~.
l . . _ . . . . . - ......n- -- . , . . . ~ - . - - .. - . - . - . . .. - I . I
- j. _ . .: --- : filed containing hundreds of allegations from current and- -
l-- - .- - . :: past workers at the site alleging deficiencies or breakdowns: --
- 1. :: - in-design QA and construction QA.12 - - ::
q- . : _- . .n ...; : In response the NRC mounted a massive: effort to- -- ._: 2 .. - investigate and evaluate the allegations. That effort, - I- e---- - called the Diablo Canyon Allegation Management Program . I- - _ - ("DCAMP") , established initial procedures and screening - -
-i l
criteria to determine the merit and safety significance of - i 4: __ : each allegation. See Supplements 21 and 22 to the . Safety- .- Evaluation Report (*SSER 21" and "SSER 22") . ..J.A.S. . q i
.h 1 In.SSER 22, the staff concluded that no allegation presented f issues precluding the safe operation of Diablo Canyon at low j power. However, before full-power operation could be c authorized, certain allegations, especially those concerriing i <
i small-bore piping, required resolution.
-1 One NRC inspector, Isa Yin, did not initially join 1 ,) in the staff's conclusion that low-power operation should begin. Mr. Yin believed that piping issues required
, . resolution prior to low-power operation. To resolve this
't i
j- 4 controversy, the Commission delayed its vote on reinstating
'j the low-power license until the differing professional .g
[ opinions could be considered by the independent Advisory
?d a.2 12 #. These allegations also formed the basis for ej a petition, filed on behalf of San Luis Obispo Mothers for -d Peace, to seek enforcement action against PG&E under the 't provisions of 10 C.F.R. 2.206. The resolution of this 1 enforcement petition is not before the Court. ;
ei ;
- .)
Ei
)
N . n.nn._ - , . . . - . 1,5.. - . . - - - . . - -...l
~ '
- 1. . - . . ^- . . .... . : . : - :. ... . ..G :.. . L _ ... ; - - . . - - .Q :- - . ~ . - -. .:
l '
. ---2 --staff also reported that resolution of the allegations - '-
i
'- resulted in relatively few (fewer than ten) ~ physical changes
- -..-- -(J.A.S.
.a to-the plant. See CLI-84-13 at 11, 20 NRC- -- -- -
i
- :' :at __,). Based on the staff's report, the Commission - - - -
- ~
i i -
- - - :-- cohcluded that a full-power license did not-need to be' - -
' deferred pending resoltition of the outstanding allegations -
+ '
" because they had been screened and reviewed and determined '- '~
l
- i- -
-to have no safety significance for full-pcwer operation.
IN " ' ~ ~
!t !
,Id. ht 12 (J.A.S. at _).
- 8. Commission Decisions on Full-Power Licensing.
f i - On August 10, 1984, the Commission issued the two s
' ~
( decisions which are subjects of this petition for review. One decision, CLI-84-13, 20 NRC (J.A.S. at ), 1 completed the Commission's "immediate effectiveness" review 1
., of the Licensing Board's 1982' decision (LBP-82-70, 16 NRC l ]
l .c
+
15 As reported by the staff in SSER 26, the changes i
# involved such things as modifying pipe support hangers, I
h altering the installation of bolts, and adding an additional electrical relay in a certain system. PGEE elected to make N-
.;i the changes although there was debate whether some of those 'l changes were needed. No changes involved technical problems l M ~
nor did the as-built systems involve a violation of an NRC , )d; or license requirement, or any code or standard. For i
@{.1 instance, many of the allegations involved proper welding l 4:{ procedures. An alleger would indicate that the American
! .s Society for Mechanical Engineers ("ASME") Code was used l @ rather than the American Welding Society ("AWS") Code which l Jc! was specified. Upon investigation, it was found that the i
% AWS Code allowed the ASME procedures to be used because they M are more stringent. Thus, the allegation was correct, but M it was not material because it involved no violation of a 4 code or standard. -
d l 'y..- 17
.. . . -~ . p. n ~ . .m. _ _
- g r. ,,, - ~ - -
. u--- -
- i. _ , . .
e , j I- -
- ' di~sruptive effects of other relatively frequent natural . -i l h - - -
phenomena (e.g., fog, severe storms and heavy rain) provided - lc - :- --- : ca- base to the emergency plan that implicitly could be .-- l
- -: -- flexible enough to handle the similar disruptive effects of 2 C - - -- - earthquakes.16 I_d,. at 5, 6 (J. A. S . at _) .: :- -
l - :-.- u I Finally, the Commission rejected as: contrary to
- ) -
r - the extensive seismic record developed in this case the , 1 _ contention that the plant's proximity to the Hosgri fault
'. -- .- created a substantially greater likelihood of the simul- --
j .
.. . taneous occurrence of an earthquake and a radiologic release
- than at other plants. The Commission noted that the seismic design of the plant presented no undue risk, citing 2
l ALAB-644, 13 NRC 903 (1981) , and that, in fact, the site is i i not in an area of high seismicity. I_d. at 6-8 (J.A.S. at
! ). See also ALAB-644, supra, 13 NRC at 993. See 1
. Statement of the Case, section 2, supra.
1
.' 9. Judicial Proceedings l
y; The lengthy administrative proceedings described
,f , above have culminated in two related petitions for review a
- c f, which, pursuant to the Court's order'of August 17, 1984, are d
3 4N 16 For instance, the Diablo Canyon emergency plan has
/d considered the disruptive effect of evacuating people in g"
heavy fog. These same considerations could be used in deciding how to evacuate people when major transportation j routes are affected by earthquakes. Similarly, the a ' capability to handle disruptions of communication due.to storms could also be transposed to earthquake disruptions. j [,0 34 19 a.,, . . .-- _ -
...w.,---__ .
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. _ _ _ _ _ _ _ ~ . _ _ _ , -
. . /. 2 . . ~ . . _ . . _ . . . . - -
- . . . 1 .. .. ._._. # . . . . . _ -
.I e4
.) .
*k ,
,i A, :, -August 21, 1984, the Circuit Justice for the District of l ~
i'
- Co16mbia Circuit, Chief Justice Burger, denied'a motion to
]2+'
E7.-
- - - -tachte that stay. :
Accordingly, full power operation'of' J: 1~" Diablo Canyon remains enjoined pending further Court order.
,j~:7~ .~ Subsequent to staying the full power license, the' Court ordered the expedited schedule pursuant to which this
; --~
a: bilef is being filed in the full pcwer proceeding. San Luis j'- obispo Mothers for Peace v. NRC, No. 84-1410. ,, , , l3.,3 ~. . . . z-- - ga g
- e. e p
1A'AP. - 1 o .
.(
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. ^ :. .
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=._u, - . = --
,d -
i
.. serious accidents. Such a determination requires a techni- - l , [; .
cal. analysis and expert judgment. The Commission has ., I l.... performed this analysis and exercised its judgment regarding .
' .TMI and has not changed its previous conclusion that
- 1. . .
i* .. accidents with significant offsite consequences are remote 1 and speculative. Indeed, if there were a significant
] .
probability of such an accident at Diablo Canyon, the !
. Commission would not license the plant. These findings on .
1 i ... _. ._._ _ . _ ;
! accident probabilities are matters within th.e Commission's
..l' l special technical expertise and are entitled to particular _
deference by a reviewing court. Accordingly, this Court
" ~
should uphold the Commission's conclusion that the probability of core melt accidents with significant offsite impact is too small to warrant their consideration in the 3
-} Diablo Canyon environmental analysis.
Petitioners' challenge to the qualification of the i j; Diablo Canyon operating staff is likewise disposed of by 4 ',j i
- reference to a reasonable and well-supported Commission
; determination within the area of agency expertise. The Com-l i .-
] mission found that the operating staff is capable of operat-l
! ing Diablo Canyon at full power, based on the rigorous i i training and testing program which the operators have
- 4 undergone before and during low power operatien, the pres-
. 1,. j .j ence of experienced shif t advisors to support the operators, ;
'4 l
I and a favorable report by the NRC staff which monitored the s
- performance of the operating crew during low power testing.
1 '
'l l 1 .
1 ilm n m m .x.m m m .. ,.e n.e..a n .
~.r -- -
.- . .. .u . - ...~.. .- - - .r:.. . ~ -- - .. -- - . - . - . . . . . . . . . . - .
i 1
- s -
--petitioners would urge, on the ground that their training
- :- - - - -- -did not conform to a literal reading of 10 CFR 55.25 (b) .
iN-- :The Court should reject any such action that would have an - j- - - unfair and unlawful impact on the affected licensees and .-
- - 'should uphold the Commission's finding that the Diablo i
['-
~
Canyon staff is qualified to operate the facility safely. - Next, the petitioners challenge the Commission's
- - ' decision not to consider the effects of severe earthquakes j on emergency planning at Diablo Canyon. This- decision was 4
i reasonably based on findings, well supported by the record, I
' that there is a very low likelihood that an earthquake will g cause or occur proximate in time with a radiological emer- -
gency at the plant. In objecting to the Commission's
- decision, the petitioners again rely on their intuitive j feelings, this time about seismic risks in California, and
-i
! on a distortion of the significance of the Commission's 1 inteuse consideration of earthquake issues in the Diablo Canyon licensing proceeding. The fact that the reactor is designed and built to withstand a large earthquake firmly supports rather than contradicts the Commission's position
- . that emergency planning need not specifically address the r effects of earthquakes, since every reasonable effort has
[
- been made to assure that an earthquake will not be the cause 1]
of an accident at Diablo Canyon. As for the remote chance l that an earthquake might simply occur coincidentally with a
)
j reactor accident from some other cause, the Commission noted 1 i e
.,,----m- . m,r.x -. a._ ..,-- . - - . . . - , - - , .. - . . . _ - - -
l
.. . . - _ = , . . ... _ ._.__ _ ... _ ... _ .... .. ..
4 l . i 1- " -- - ha've led to a different result. This court should not-
'secon'd~ guess the NRC's technical expertise in those matters.
;- ' ~
r '- 'Ce'rtainly nothing raised by petitioners' construction-QA 2 r - - motions to reopen warrants departure from this-established j-principle of judicial deference. I i r Petitioners finally complain about the
,-- Commission's treatment of their allegations concerning i
- de' sign QA.
F: The Commission's treatment of petitioners ' design OA complaints was completely fair and reasonable. With regard to this claim the Appeal Board allowed petitioners to reopen the record, and it held an extensive hearing to fully I " consider these allegations. Moreover, in addition the NRC has conducted and supervised an extensive design verification program entailing many thousands of engineering 1 hours. No design defect has been found which warrants a l refusal to license Diablo Canyon. In the face of this overwhelming evidence of compliance with the Commission's design QA requirements, petitioners concentrate on the dissenting professional opinion by one of NRC inspectors s assigned to examine Diablo Canyon's design. That differing opinion is contradicted by two expert bodies: the
- 3. ;
} independent Advisory Committee on Reactor Safeguards and a 1
Peer Review Group established by the NRC. Thus, at bottom, f petitioners are asking this Court to second guess the
- < commission's decision regarding which experts to rely on in making a technical judgment. Given the absence of evidence i
M.I M '
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- - , _ . - -1 ._ _ _. ._
i . A q
.5
; . ARGUMENT
's
~~ ~ ' ~
The fourteen years of administrative litigation
~~
~
fC' over Diablo Canyon have generated an enormouis record SF composed of thousands of pages of complex testimony, J
~
I~" exhib'its, and pleadings. The NRC's decision has taken form
+.
~~~
' ~
' ' ni ' numerous, often lengthy and highly technical opinions by i ' '
4 Licensing Boards, Appeals Boards and the Ccamission itself. i
.-{ see Appendix A. Those protracted and complex administrative i_..
l~~ proceedings have now been reduced to the questions addressed t
!' in the argument which follows.
i . The case the petitioners raise against Diablo canyon implicitly seeks force in an underlying, frightening l i i premise that the reactor, situated within a few miles of the offshore Hosgri fault, faces a dangerous and uncertain j threat from earthquakes. The realistic appraisal of seismic I j j risk is a legitimate concern that the Commission has not 1
-{ ignored. Quite the opposite is true. The Commission has
,l devoted at least as much attention to the possible effects 1
l of earthquakes at Diablo Canyon as has been devoted to the
-i j- possible effects of earthquakes at other facilities where y
l this has been considered important. And, as at those other i facilities, not until the Commission was fully satisfied
, that there would be no undue risk to public health and 1
.i safety did the Commission license the facility to operate.
The intense controversy surrounding Diablo Canyon, spurred in large part by seismic concerns, does not change
-l the quality of the decision required by the Commission in a i -
22
~s.@7: v c.w .p.~ y. .. R i v m s i:V- w m W W
_ _ . _ _ _ ,wnr= =*y=w;z,3gm37'. m.c:. . _ , _ _ _ _ _ _ _ _ , - _ . _ _ .
. _- ~ . . _ , . - _ _ _ _ - . _
~
^_...
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i l -
.1 ,
y . . ., . decisions beyond what Congress has specifically provided.
, ~[ .. _ _. vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519,
_ _ ; . __ n . 558 - (1978) . Under the Atomic Energy Act it.is the job.of. ..
. ...,;. g ,, ; the Commission to evaluate the safety of proposed plant .
- operation and to determine the significance for licensing of j _
i* . . . . .whatever residual uncertainties remain. The. Commission has
~
F j- , performed that task lawfully and reasonably for Diablo
}. 6
. Canyon. It has concluded that there is a reasonable assurance that full power operation of Diablo Canyon will li. not endanger the public health and safety. On.that. basis
-- the stay should be lifted and the licensing decision should be affirmed. .
l I. THE COMMISSION WAS NOT REQUIRED TO CONSIDER THE { ENVIRONMENTAL EFFECTS OF A CORE-MELT ACCIDENT AT DIABLO CANYON The petitioners claim that the Commission violated the National Environmental Policy Act ("NEPA") 42 U.S.C. 4321 , i l _e_t, t seq., when it declined to address the environmental effects
',1 of a core melt accident in the Diablo Canyon impact statement.
. A decision by this Court directly in point, but not cited by 1 petitioners, establishes beyond question that the Commission l
.l .
, has not violated NEPA. Carolina Environmental Study Group v.
t U.S., 510 F.2d 796 (D.C. Cir. 1975 ("CESG"). In CESG this Court held that NEPA did not require the Atomic Energy Commission to describe in the impact statement for a nuclear power plant the environmental effects of a reactor accident J resulting in a significant release of radioactivity to the
,]
l Mww--- wm;. .- - wn.nw.m= a;24n .- - =- ---- - ---
.._,. .___._..1.__.__._-- _. . _ . . . . . _ . - - _ _ . _ _ .
I q . i [ This Court and other courts of appeals have con-i - tinued to apply a NEPA rule of reason whereby- agencies "need -
- " . : .not: discuss reinote and highly speculative consequences." -
Trout Unlimited v. Morton, 509 F.2d 1276,1283.:(9th Cir.; __.
.,r
-- - - - 1974) a - See, e.g. , Warm Springs Dam Task Force v. Gribble, 621 -
F,.2d.-1017, 1026 (9th Cir.1980); Environmental Defense Fundi
- Inc. v.-Andrus, 619 F.2d 1364, 1375 (10th Cir. 1980); -- -
- Environmental Defense Fund, Inc. v. Hoffman, 566 F.2d 1060,
,. 1067 -(8th Cir.1977); NRDC v. Morton, 456 Fad 817, 836-837 -
- L _.
~
(D.C. Cir. 1972). : -
) _ . _ This rule of reason firmly supports the adequacy of - !
the Commission's environmental impact analysis for Diablo I Canyon. When the Diablo Canyon Final Envi'ronmental Statement l ("FES") was issued in 1973, the Commission held the view that it maintained two years later in CESG and that it maintains today, namely that the possibility of a major reactor accident
, with serious offsite consequences is remote and' speculative.
; Indeed, it is the Commission's obligation under the Atomic l
; Energy Act to find reasonable assurance that no such accident will result before it issues a reactor operating license. 42
' U.S.C. 2232.19 Accordingly, there is no NEPA requirement that 1
?-
1 j 19 Pursuant to this section of the Act, f.he Commission must "make a positive finding that operation of the facility will provide adequate protection to the health and safety of , the public." Power Reactor Development Corn. v. Electrical Union, 367 U.S. 396, 406 (1961).
.l bhm nm m:c=mnm . w,=.:.mmw:~.n '::= ~ =nm' .i.~- -- -
A.:......~ Z ~ ._.~ ..
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2 i i I. j 1::_ :.in useful.. test for determining whether new information. requires . . . . i an agency to revise its previous environmental reviews:- -:- - - - - .. M .-- ..._ .r. : t ..It is not enough that the information may be worthy.cf._: .e: tj further-inquiry or may be considered important c3 : J :.n _f.s. research. Our task is the limited one-of determining -:. . whether or not the new information presents a seriously
. j;- : . _ _ . . +n- different picture of the likely environmental.conse .- . z.
quences of the proposed action not adequately envi-
- : : : _ . . _.- - sioned by the original EIS (Environmental-Impact .._. _ ; .- --
~i Statement].
fj - . ._ , .. . j Id., Slip op. at 13, 14. Addressing a Navy plan to con-
?_
._:_u .. .. . .= _...- - - -
struct a submarine communications facility involving pos- _-- -- : . j. sibly adverse health effects from extremely low frequency electromagnetic radiation, the court found that new scientific work which merited " careful review" by the Navy nonetheless did not present such a seriously different , j picture that the Navy was obliged to supplement the impact statement. I In applying the Wisconsin v. Weinberger test to i determine the significance of the TMI accidant for the
.q Diablo Canyon environmental review, the question which must be answered is whether the TMI accident shows that an y
i accident with serious offsite consequences at Diablo Canyon
$ has a significant likelihood of happening. The TMI accident itself, though clearly a major and unforeseen event, did not have any significant offsite impacts.22 What that .#.3 .y .
if (Footnote Continued] [ to support their supplementation argument. Pet. Brief at 19,
.]n 22.
Nor is there a clear basis for believing that the
] [ Footnote Continued]
3 28
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~ v- - ~- -
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)
l 4
- .. -'.- license proceeding of all safety issues bearing specifically - -l
- -"' on this facility, that the safety of Diablo Canyon is I'
. >a
'ti .: n = sreasonably assured. Moreover, in addressing generally the - - ' :7-
;-- ~ : ' . -:-significance of TMI for NRC environmental impact' as'sess-
- - : d-
. tr : - - er ments, the Commission has affirmed its continued confidence -
i
.E' :. .: ar..in the conclusions about the low risk of ac~cidents expressed u -
i 3 l~:7-- 1-in pre-TMI impact statements. 45 Fed. Reg.' 40101, 40103 - - l I-- .. (June 13, 1980).24 ,, , i l
-; - C The petitioners' intuitive, but non-analytical and --
~'-
incorrect, feelings about what TMI signifies'for reactor" l~
! - accident probabilities carry virtually no weight against the l -
! !- Commission's evaluation of the accident, a determination l {
"within its area of special' expertise, at the frontiers of
, science," where a reviewing court "must generally be at its -
most deferential." Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87, (1983). Accordingly, the Court should uphold j-the Commission's finding that the probability of an accident I with major offsite consequences at Diablo Canyon, even in l i view of TMI, remains too small to warrant consideration of
?
such accidents in the environmental impact statement.
'k Petitioners' argument that a " worst-case analysis" i ]~ must be done is disposed of by the commission's findings regarding the low probability of such a " worst case,"
together with the NEPA " rule of reason" as applied in CESG, t l 1 24 See note 20, supra. i
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~
. . . . . - . . .. . 2 . ~ : . . . . . .
I . i
.I
- - II.: . THE COMMISSION DID NOT ERR WHEN IT FOUND- THAT THE . - --
. REACTOR OPERATORS AT DIABLO CANYON WERE QUALIFIED TO
;. t : 't + : . . OPERATE THE FACIIITY SAFELY AT FULL POWER -
- - .r . .. : :
I ..: . : : : r.. - tr- : .:u..2 a rst :s-- a .- :. t !. Before issuing of an operating license for Diablo n
=.- :.- 1: 2:.. . .:
canyon the NRC made the general findings that the facility 3 . . . . . . . . . .. . .. . ... I will operate in conformance with the Atomic Energy Act and i' t
.i the Commission's regulations and that there is reasonable I !
j assurance the public health and safety will not be endan-l gered. 10 C.F.R. 50.57 (a) (1) , 50.57 (a) (2) . The determina-tions required by these regulations include a finding that the operating staff at the controls of the facility is capable of operating it safely. The petitioners challenge
);
the Commission's finding that the operating staff at Diablo
-[
Canyon is so qualified. CLI-84-13 at 9, 20 NRC (J.A.S. j ,; ). The Commission's finding is thoroughly supported and i c l should be affirmed. The Commission initially addressed the qualifica-j tion of the Diablo Canyon operators in connection with proposed testing and operation at low power. CLI-84-5, 19 j NRC 953 (1984). The operators of Diablo Canyon have undergone a rigorous training and testing program, both h: . before and during 19w-power operation. Before commencement i k of low'-power operation, a typical licensee successfully i i s completed (1) a 30-month program on power plant funda-
,.; mentals, equipment, systems, radiation protection and .s (j administrative controls, including time on-shift at the 9- facility; and (2) an approximately year-long licensing l ?;l program. Several license holders have participated in .e .}
S. . . ,.. . . . . m,,
.,, , ~ _ 3 2.. . . _
. _ . . . . . _ . - _..-.....a...---.- .. --. . - - . . - ~ -
i e i*
.:- ; - ... :a:1.icensee management is adequately involved in day-to-day -
i _ , _ - op.erations. CLI-84-13 at 9-10, 20 NRC -(J.A.S. ).
! . -, , . - Based on this report, the commission acted well within its : -
I
- b. - -- --- discretion in concluding that the operating- staff was -
. b w ._ - : - capable of operating Diablo Canyon at full power. -
The petitioners object to this finding, arguing .. - j that the commission cannot find the Diablo Canyon operating a
. . staff qualified because the reactor operators have not had - --:
extensive previous operating experience at a comparable - -- - - e _ facility. According to the petitioners, the Commission's - j 1 authorization for operation of Diablo Canyon violates "the a - -- - regulations' unequivocal requirement that all reactor 1
- j. operators have extensive actual operating experi-I "
. . ence . . . . Pet. Br. at 34 (emphasis in the original) .
The short answer to the petitioners' claim of a
, regulatory violation is that there is no " unequivocal regulatory requirement" that an operating reactor must be 1 ,
} staffed by persons with previous operating experience. The regulations do not specifically require a particular level of experience for operating crews. Whether the plant is g
"'y adequately staffed for safe ~ operation is a matter which the
, Ccomission determines by an exercise of regulatory judgment 4
~
] as part of its general findings pursuant to 10 C.F.R.
[ 50.57(a), not merely by mechanical application of operator
.c. > ;g experience criteria. Thus, contrary to what the petitioners ] imply, the Commission's action in no way flies in the face 1 of NRC regulations.
g
- ,4 1
,I 1
w...---.. _
. - 3 4... .
---,-.,.-y ---,,-,------w,- - -
! e-=--- --soperator training. In relevant part 10 C.F.R. 55.25 (b) -
- 1. . .: : states:.
j-, - . - - - - - . The Commission may administer a simulated. operat ::- . .:..
! ing test to an applicant for a license to operate a .
1- r-- :-- . reactor prior to its initial criticalitytif a written - . -c:
,- request by an authorized representative of the facility
- - :_.:. __u licensee is sufficient for the Commission.to find that: ==
; s : :. . .- a . '* * * * ..* . : :- ..:.
1..-- ..r - (b) The applicant has had extensive actual -
! operating experience at a comparable reactor.
- _. .. . : ; . .- :--- s: --- .-- .-- -
{ This regulation clearly imposes an experience l requirement only with regard to the type of examination 1.--- ..
~~..
which must be administered to an individual applicant foFa~
~
i 1 . reactor operator's license. Neither this regulation nor any
! other bars the licensing of operators who lack experience.
1 . . . . . ... . What it does require is that an applicant who is to be examined by a " simulated operating test," prior to initial criticality of a reactor, shall have had " extensive actual
! cperating experience at a comparable reactor."
l j Because the Diablo Canyon applicants depended on i i simulator training to meet the " actual operating experience" a l requirement for testing under 55.25 (b) , the petitioners r assert that issuing the operator licenses was a clear violation of NRC regulations. The Commission opposed this Y argument in its Low-Power Brief, No. 81-2035 at 40-44, which 2 j is incorporated here by reference pursuant to the Court's y 7
, order of August 17, 1984. It has been the longstanding practice of the NRC staff to accept simulator training as
, meeting this experience requirement. For the reasons
"; discussed in the NRC's Low-Power Brief, at 40-44, the i
l I
- d. -- c -.-- ~ .-,,w,, -. . ...,..,.n--:., ,
36
, m.m - .--
. w .-- - . - -. - - .-.. -
. . . . , . . _ . . . . ~ . . . . . . . . . . - . - - . ..- - - - . - . ~ . .
4
-l t
; . _ .- e::: ::-r.: operators' licenses to be invalid, it would..have been -
1
! f..;c : - _.:. subject to a serious charge that such precipitate action was I
j- : . .: . :-runlawful. :. ::--- . - :: n - ::
,o hv ..
Moreover, had the Commission done what petitioners :. ..: lp 4 : w- . :arrie for, it also would have been subject -to- another . charge that such action was unlawful. When an agency departs from I. -
.. --its prior interpretations of law and its prior uniform - ---
.--- 3 .- practices, it is obligated to provide rational-reasons. . - -
_. justifying its change of course. Baltimore & Annapolis R.R. .: m.:.. .
. v.-Washington Metropolitan Area Transit Comm'n, 642 F.2d. . g.
.. -- . .1365,:1370 (D.C. Cir.1980) ; Greyhound Corp. v. Interstate .
Commerce Comm'n, 551 F.2d 414, 416 (D.C. Circ 1977); c Columbia Broadcasting System v. Federal Communications j- . _ Comm'n, 454 F.2d 1018, 1026 (D.C. Cir. 1971).. The Commission believes that the procedures which it has followed in licensing individual reactor operators are i adequate to protect public health and safety. Indeed, since 1967 the Commission has consistently employed the licensing l
! practices which it took in this case. Moreover, the regula-b tion, as literally read, has been made unnecessary, if not c obsolete, by the development of sophisticated simulators ? '
used to train those individuals who are licensed to operate i O@ CLI-84-5, 19 NRC 953, 961 n. 5. See also,
;p power plants.
.r
.1 Id. at 972-73 (Commissioner Bernthal's concurring views) .
When the Commission perceived a divergence between its long- ! q s'.a: ding practices and the literal wording of sec-tion 55.25 (b) , the Commission acted reasonably and properly.
,1
.. l 4
5_._.._,_..._...,,--_,c._- . 3 8.-. _ - - . . - - - , - - . . , - . . -
--____..c. :- , _ . . .
i
- t .
i . i i i ...- r .t..1;...III. THE COMMISSION' S DECISION NOT TO GIVE SPECIFIC . t :.. . _ . : 1 CONSIDERATION TO THE EFFECTS OF A SEISMIC EVENT ON
-j ) n. _: - . --
- :. EMERGENCY PLANNING WAS REASONABLE AND DID NOT VIOLATE . r . :
THE ATOMIC ENERGY ACT OR THE COMMISSION'S REGULATIONS ur- :.. s :- : . - .: .: : .: ;
!::t : :. .___
j%::- 1 :. . +i In an order supporting'its decision.to license . .._.-
---r-- -
.Diablo Canyon, a majority of the Commission. determined:.that . 4..t-i.
i .' . _:.
...the NRC's regulations should not be interpreted.to require.:. -
i p -- .. - the consideration of the impacts on emergency- planning- of . _,
.I, _ : - - - _: earthquakes, given the low probability that; an earthquake :.- ; - ..
1
) :. - - would either cause or occur proximate in time-with a ;.- - -
radiologic release.27 CLI-84-12, 20 NRC - .(J. A. S . s }. .c- a Petitioners object to this Commission decision, claiming
- that because of the " recognized risk of significant seismic activity at and around the Diablo Canyon site".the -._;. .
Commission cannot find that " adequate protective measures
. can and will be taken in the event of an emergency," as G
i : required by its regulations, unless the Commission y explicitly considers the potential complicating effects of if an earthquake on the emergency plan. Pet. Brief at 42, citing 10 C.F.R. 50.47 (a) (1) .
#k . ,
Petitioners' argument, like Commissioner Asselstine's dissenting opinion, relies on general impres-
.;.)
sions about seismic risk in California. They do not discuss in any detail the actual level of seismicity in the Diablo k..,
'.? Canyon vicinity, as established by evidence in the record, +.) .
Q l-: 27
) Commissioner Asselstine filed a dissent.
40 ~~---- ::- -~-~ - -~ h.r n m - n mve w m;ve.n., w v =.7 r 7; s - .. 9:m -
. _ . _ . =
- ^
. . ._ -- _ .- . ~ z -_ . . -.
5
. I ; 'i -
d_:. - ::.- anarlicensing of.Diablo Canyon. From the Diablo Canyon record . i t : : .: :- .:- -the commission can reasonably conclude that if an- emergency . i:. _ m _r_does occur it is unlikely that it will have been initiated.:._. c .- -
; ..r : . .:i . :. c.by -art earthquake. There is thus a sound basis.for.the __ .: - :: -
. .- _ . :__J : . commission's decision in CLI-84-12 not to look- explicitly at . : :--
j - ;.. r. . : : - the effects of earthquakes on the Diablo Canyon emergency : . .. . 1 d.:!.t.
- : _ prian - - - - -
]+---- -
Contrary to the petitioners' assertions, it does .- - - a h
.i. ._ .2 :.r no . violence to the principle underlying emergency planning _ - .__:
l __ ._ -(i.e. , the assumption that accidents, however unlikely, may : j - nonetheless occur) for the Commission to determine that the . . y d :: __ _ plans need not explicitly address particular accident ..
, .. sequences that the commission finds comparatively improb- . . . .
. able. This is not an argument against any emergency plan-
, .I ning, as petitioners claim. Rather, it is an argument for 1
,i efficient conduct of planning reviews. If such a -
.. probability-based " rule of reason" were disallowed, the
.\ .
.S
) evaluation of emergency plans could become an open-ended exercise in creative speculation about possibilities, even
.].
the most remote, rather than the practical planning process n 1 the Commission's regulations intended. Thus the petitioners
%)
p cannot, as they would wish, simply eliminate probability
- y"'
considerations from emergency planning by an over-simplified n
@9*, )' reference to the " fundamental principle" of planning. The E6 Commission's reliance on probabilities was a reasonable'and g ], consistent approach to determining whether its emergency .)
42 M.- r . v m -r : 3 n . m. a,n 7 ;m m - m 5. w m g g yy g n
. g, a. m , .. , .r.,-~ - - m --
p:. .:.. s_. _. inconsistency in the agency's position, as petitioners. try o
~l to depict it.29 , = . ,
t4.-;+ -' a u cr. :.- : Generally the Commission applies emergency plan . .. i g t ning principles so as to require prudent and-adequate- ;. ..::-- p - + :: .. planning primarily for those natural phenomena which, unlike . 4 3 .:. severe earthquakes, occur relatively frequently in a given p .: n . _ area. j In turn, that planning can be used as a- base. to - . .
- .4 n:: : . - 1. : . .r. develop an adequate response to those events which occur . __ . .
E j _ . : .* _ n : _:relatively infrequently.30 I_d. at 5, 6, (J.A. at - ) .: - In ...
.s
- f. .. . . - - ..:. . .. . ..
i 3_ - . .
- - - ~~
i 2fIt should be recognized that Diablo Canyon's
- . _ _ :. conservative seismic design is not based, on a conclusion that earthquakes are unusually frequent in the localized
. ... site area but rather is responsive to the possibility that,
, I if an earthquake does occur, it could be a strong one. The 2 .. severity or magnitude of the earthquake is related to the j proximity to rhe active Hosgri fault. See generally, ALAB-644, 13 NRC 903, 926-927 (1981). In CLI-84-12 the Com-
. mission does not denigrate the seismic risk but recognizes instead the distinction between magnitude of potential earthquakes as distinct from their frequency. The case was
.J; similar at San Onofre, where the seismic design was based on close proximity to an offshore fault zone even though the 4 coastal area of that southern California site had
's experienced only moderate seismic activity during the past 200 years of historical record. See LBP-82-3, 15 NRC 61, 68 4 (1982). The San Onofre licensing decision was recently
.j upheld by this Court in Carstens v. NRC, supra.
30
]b For example, emergency planning at a North Carolina
. coastal site would require consideration of the effects of a
.d hurricane coincident with a radiologic release, but not the C infrequent effects of a blizzard. In the event of a blizzard, however, the required emergency response in the c event of a radiologic release such as notification and X evacuation would necessitate consideration of many similar complicating effects as that of a hurricane. Basically, l" FEMA and the NRC require emergency plans to account for and consider adverse weather conditions or adverse site i
conditions in evacuation time estimates. See Enclosure to Attachment 1 of CLI-84-4,19 NRC 937, 943-T4T (1984) . If I (Footnote Continued) 1 1 44 s.- - .,.m . . 1 1,.,:.. _. - .~.,-- w . ~._ .. - ...=a.,....--.
. , m y , , m s r 7, . ~ .
^
.....T._.- . . ..~ . - _ - _ . . . _ . . _ . _ .___._~- .._J.__
i
- }.r. . . . :1:.: . . decision.31 For the reasons discussed abova,..the.Commis- :_.. _
i k . 4 .- :::sion's reasoning is correct and should be upheld. . :- _.
;- : . - . c. 2 ;. 2 2: * : . :.: :u- . . . . _ ..: :: . . . .
t
- .:: ?.. 1..: . :. . 1:. . .. :: . . - ..... & :.
i.. I r.9._ : : :. : .- - : :22 . - t: .
- j. - .- ; .
I
- j. . . _ . - -
- ..... ; _ _: . . . . _;. . . . m .
i
- f. -_ :- . ~.: .. . . . .. .
- . . . . . . 1: . .
I
~. .
~
1 i l i
- 31 That the NRC staff at a time prior to the San Onofre decision requested California licensees to address effects I
a of earthquakes on emergency planning at Diablo Canyon in l' studies not on the record of this proceeding is not at all equivalent to a concession of materiality, as the i petitioners would take it to be. When the Commission addresses an issue, as it has here, it is the Commission's
' view, and not the staff's, which controls. In any event, in response to CLI-84-4, the staff stated that it no longer viewed as material the consideration of earthquakes on .j emergency planning because of the low probability that an earthquake could result in a radiologic release. Thus, the
. Commission's decision is supported by the full weight of the staff's technical expertise. b g z--m,-m-- ,e g.,7g. p ,,,a.s 7 ;. e:.,
- x-. . m ,. 7 p .. .. . - g , m . - --- ,. m , q q.-
,.._.u.... -
I 9 1 1 i, -h.::.m_ :: ve.show infra, this explanation is reasonable and entirely - -h -
- x:.
!- : :: - ~ J consistent with the pertinent regulations. Accordingly, -
- - - . -there is no merit to the petitioners'. claim that the Diablo
.. u t a.-. Canyon. licensing decision should be reversed because their...
. - reopaning requests were denied. n. -
} ( ._ . .
. :-. .n. At the outset, it should be clear.that the contro- .
versy recuses on motions to reopen that were-filed by - i.._ 3- - .:.-petitioners beginning in 1982.33 In 1982 and 1983 -
- j. .. ..- - -
t
' ~ ' # ~-
[ Footnote Continued] - - warrant a stay of the full-power license. For the reasons discussed infra, the answer is clearly that it did not.
~
33 Petitioners' Brief recounts an earlier effort to raise quality assurance issues in April, 1977. Pet. Brief at 54-55. Petitioners moved on April 29, 1977 to add a new j . and very generally worded quality assurance issue to the 4' hearing. After oral argument, that motion was denied in part by the Licensing Board in an Order dated May 25, IT77. See LBP-81-21, 14 NRC 107, 114 (1981). This motion was three years late, the time for specification of issues for the hearing having expired back in the spring of 1974. Moreover, it sought to inject a general quality assurance issue that did not focus on construction matters. As a result, quality assurance was not a contested issue in the 1977 hearings. However, because of the Licensing Board's own interest in the general subject, both PGEE and the NRC staff presented evidence on PGEE's QA program. PG4E's expert described the structure status and chronology of PG&E's QA program. The NRC staff presented its evaluations of allegations of QA deficiencies and its conclusion that
. the QA programs were being implemented consistent with the status of the project. 14 NRC at 114-115.
On two occasions ,, petitioners refused the oppdrtunity to cross-examine the QA witnesses. These circumstances show that there is no basis for petitioners' implication that the commission refused to
; consider the QA issue in 1977. Petitioners assert that it is a " conceded fact" that the evidence at the 1977 hearings is discredited. Pet. Brief at $5. That is, at most, correct only for design quality assurance for which an adjudicatory hearing subsequently was held. See, ALAB-763, 19 NRC 571 (1984), which is ciscussed below. See Argument V, infra. We are not aware of any such concession ,"t (Footnote Continued]
d.
'j . . . , - - . - , - . _ , . _ . . _ ..~m 48
[ l
)
1 l:.;:.: p : : . petitioners' complaint that the Appeal Board denied them.any . e
! e-- a - n rights by not providing an opportunity for discovery at the : - -- -
{:: t -;-- . ./ . Mini.-hearing.
. The NRC's rules do not guarantee discovery in;.:..: ,
x r;.' - : such a. discretionary hearing on a motion to.roopen.. Nor was -.. :
- f. . . n. _:11t an abuse cI discretion to proceed by something less than : -
U -- -- . a, full adjudicatory hearing, as the Board did, given the. - - l
. . . . limited nature of its inquiry. --.:. . . .- .
l... -
.. . Finally, the record of the Mini-hearing belies .-:.. .< !. . :- petitioners' claims that they were denied the right to .-
l j.. ..present evidence or to cross-examine witnesses meaningfully._. . I J The " Mini-hearing" lasted four days. It focused on whether i j.. petitioners had satisfied the NRC's three criteria for i reopening a record -- a record that had been closed for many 1 years. The Appeal Board applied well-established NRC reopening criteria which require new evidence to be tinEly, to raise significant safety issues, and to be strong enough I
. to have changed the result had it been considered initially.
- ] ALAB-756, 18 NRC 1340, 1344 (1983).
t l l 1, . [ Footnote Continued] , construction activities. In response, PG&E voluntarily added QA audits of selected portions of the construction process. No physical modifications of Unit 1 were found to
.l' be required. The NRC staff reviewed these audits and found <
that the IDVP conclusions, that the work performed in I constructing Diablo Canyon Unit I was satisfactory, are j appropriate and provide additional assurance that Diablo l Canyon Unit I construction is acceptable. Safety Evaluation Report Supplement No. 18 ("SSER 18") at C.2-4 (J.A.S. ). In view of these conclusions, which allayed any concerns i initially expressed by the NRC staff, there is no basis for petitioners to continue to rely on that early staff . i statement as supporting their motion to reopen the record on i construction QA. n
. 50 r x m .v qtv.y n .a;. w ;.mn:pvi~- . . . .a -e~ . a=. - m . ~ v-- ~-
~ - - -
_,C . L_ ^^ T_ :. : :27 -- : . : . - -- T: n ' ~ :. :- ~ - 1
! 4 4
) .
! l
; 8 h::::_3g:. :: ::. . Petitioners complain (Pet. Brief at 62-65) ,. .
. u ._ , , ,
!. .- - . . . ..;.because, based on an extensive record, the Board found that. .
' . _ . g.;.;,q..,cMr.. Richard B. Hubbard was not an expert in g construction,QA ... _
4
, e :.. . e: r.an4,,_accordingly, it discounted his testimony. . ,ALAB-75.6,,18,_.- . n; 4
; g.. . .. . ,NBC.1340, 1346 n. 10.37 The Board's determination of expert ....u.
~ :. r.- . .. .
~
S: u: ~ U l :i (Footnote Continued] . [ :I ..
-focus that was, in fact, not present when they. originally 3....
]m. . presented then arguments to reopen construction QA.
L. , j Petitioners point, in particular, to those aspects of their motion dealing with the Nuclear Services Corporation . ., , (*NSC") audit. The NSC audit matter was bel ~atedly' called'to f the Appeal Board's attention six weeks after the hearing on l petitioners' notions had been concluded, and is discussed by 1 the Appeal Board in a lengthy footnote. ALAB-756, 18 NRC .
~"'
1340, 1354, n.35. .The staff found that QA d ' eficienciins I
~
identified by NSC were similar to QA deficiencies which had
~
~ ~
i been discovered by the staff and corrected by PG&E. i , Accordingly, the staff believed that the NSC. findings, like ! the NRC findings, reflected already corrected isolated QA ! deficiencies. PGGE reported that it had conducted its own
- audit of the NSC audit findings and found most' of NSC's l conclusions to be incorrect. Importantly, PG&E also .
1 corrected those QA deficiencias found in the NSC_ audit which
- .; did not meet QA criteria.
i' The Appeal Board reviewed the NSC report in light of i the parties' filings and determined that petitioners' had l not identified "a systematic or serious failure of the l 9 (construction] quality assurance program." ALAB-756, 18 NRC j i., 1340, 1354 n. 35. Accordingly, it refused to reopen the
- o record based on the NSC audit. This determination by the i
Appeal Board, based as it is on the technical merits of various allegations on the significance of particular QA l . deficiencies, is peculiarly within the zone of deference for ! s decisions within the commission area of expertise, and I
'1 e
. should be sustained.
l i 37 In this attack on the Board's action, petitioners l
..j, fail to mention that Mr. Rubbard had very limited expertise l 4 on the subject of construction quality assurance. He
.- conceded at the hearing that he had never worked on construction quality assurance at a nuclear power plant site l 0' (Tr. 23),. had never developed or been intimately involved in l
field quality programs (Tr. 57), and had not reviewed the c,, (Footnote continued] j 52 m.w . . . _ _ _ . _
+.w- w a m . . _ _ _ _ _
m.w . ; -. .,- _________m
[ ...._..- ._ _.h - - = . .... . . , . . . . _ - . _ . _ _ . _ . _ . . _ . _ . . i i L ,; ..:- _- limited weight to Mr. Hubbard's testimony. That decision; . % 4 v :t---- should not be second-guessed. Cf. Carstens v.- NRC, r. ..:.: i i . - r ..- -- - -No. 83-1879 (D.C. Cir. , Sept. 7, 1984) , Slip op. .at 13-15 e n.. .:.- . a- >> 2 ;(The: Court should defer to a Licensing Board's 1udgment_in. : n ...< f.:.n. : < :: .2 -assessing the credibility and weight to be given .to the -- .:. :. .: . :
; k- -
- tesHanny of expert witnesses.) . .: _ . . ; - re -
- 1 f l. : .: : r. - The Appeal Board also analyzed in detail peti - :-
- 1-
, .. -tioners' other evidence and reasonably concluded.that it.-had- ..
!l- --
. failed to establish a systematic breakdown in:the construc .. .m d tion QA Program or defects in the plant that could affect its safe operation. For example, the Board found that l -
petitioners had failed to substantiate their claim of [.. ... i deficiencies in the construction quality assurance program I at the H.P. Foley Company, a major electrical contractor at
- i Diablo Canyon. ALAB-756, 18 NRC 1340, 1346-48. On this issue, petitioners relied heavily on a sworn statement by Virgil E. Tennyson, a former QA manager at E. 'P. Foley. The
! Appeal Board found that Mr. Tennyson's statements on cross- , examination significantly undermined the conclusions peti-
! tieners had drawn from Mr. Tennyson's sworn statement and, , , thus, did not demonstrate the existence of a significant ,
, . safety issue warranting the reopening of the record. M. l 4 l similarly, the Appeal Board found that petitioners had not !
\
substantiated their claims that the discovery of defi-ciencies in the construction QA programs by other con-tractors was significant. M. at 1348-50. The Appeal Board a noted that the deficiencies were generally the result of i i j 54 _m,.,
- ....,......-..<1 . . -
. ... - -~-~- - - - - - ---. ...--- - -..- . ;
. ! I s 1
- . 1
. l
)
[ ..w ...:.e.except for one item, the material did not include.new -.I::: i: :: - . . evidence of any significant safety issues that could affect- - - pru ..:_- .the outcome of the proceeding. Indeed, petitioners. conceded . :::: i .. . - that few of the alleged deficiencies would be-demonstrably :..: n:: 4 j a.: : .; . .... ..significant. ALAB-775, Slip op at 9. , The Appeal Board--- s :; .. j!::- ; -> Tound that none of the alleged deficiencies:were safety - - -- - l.
. significant, either alone or cumulatively. :The one item,-
- 3
- . .. possible improper use of A307 hardware bolts with heads u . . '. . . :. .
I i g._. : . . : . removed as studs for the containment liner,. was resolved,- . . - . .: i
. j n. .. : with the aid of additional materials, in ALAB-775A, NRC -r-..
. . (Aug. 8, 1984). These decisions are currently pending --- . :.
;. - before the commission on petitions for review. -
Petitioners' challenge to the Appeal Board's-
. decision in ALAB-775 is not directed to its substance but to the Appeal Board's alleged impropriety in determining not to l
explain in detail why each of petitioners' alleged defi-ciencies was found wanting. But the Appeal Board explained
. .) why a detailed decision was not warranted. Petitioners had a
not sustained their burden of orge.nizing their material so as to show how the raw data supported particular allegations 6 of safety problems. Even though this did not stop the It' i .
.x e.
$ [ Footnote Continued]
! 15 by claiming a countervailing need to protect affiants from u harassment. Finally, the question of whether the documents
.f;-, were self-authenticating is a question of fact which cannot be second-guessed in the absence of those documents. Under
- 4 these circumstances, the commission did not abuse its j y discretion by not staying the license in the face of petitioners' disagreement with the Appeal Board's evidentiary ruling.
s
.'.},,,-.,-...+
56
, , , , . . - ~ ,
-----,.--,-.._n-----..-._,,n,.,
..,,-,,,...n...-.-,.,,-------------,-,,n
4 i
)' .
i r.2 r.:. . :- safety. Accordingly, the Conunission's decision.not to .;-- : :r- . : i re-it- :ccm reopen the record on construction QA must be affirmed.. - :: :
! s: : :. . :. : . .- h:1r. .t :.: -
j.- - . ,- V. BEFORE AUTHORIZING OPERATION OF DIABLO CANYON AT FULL
--' ' POWER THE COMMISSION RESOLVED ALL RELEVANT- DEFICIENCIES :. ;' !- IN DESIGN QUALITY ASSURANCE
' j :. : _ c : .: .: : - .. r+:::. z. .u . :- - __- M. : . r. . .: . Despite the extensive review and corrective -.. = .:. i 1 actions at Diablo Canyon, petitioners maintain.that there -
)
1- .. - ' are still a substantial number of design deficiencies at the - - I p r- . . -- --:: plant due to deficiencies in the quality assurance program .- - rr.
.. . for design. Pet. Brief at 67. In making this claim,? . :. -
1 1
. petitioners discount the almost two-year long design :- . ..
. verification program conducted by PG&E and.the subsequent.. .
Appeal Board decision which, after a full adjudicatory - hearing, concluded that the IDVP had adequately resolved the . l . design QA deficiencies which had led the Commission to
. suspend PGEE's low-power license in 1981. ALAB-763, 19 NRC 571 (1984).3I Rather, petitioners depend on the subsequent 3I The Appeal Board resolved 14 major issues after exhaustively reviewing the evidence presented on each of
~j ' them. These issues included: (1) scope of the IDVP; (2) '] various soils analyses and models; (3) fire protection of
- ~ the auxiliary feedwater pumps; (4) jet impingement; and (5)
' adequacy of the component cooling water system. The scope and depth of the Appeal Board's decision in ALAB-763 clearly shows that all of petitioners' contentions were fully T considered. s ( Nor is the adequacy of the Appeal Board's decision e undermined in any way by the Commission's subsequent order denying petitioners' petition to review the Appeal Ecard's 3 decision. CLI-84-14, 20 NRC (Aug. 20, 1984) . E Commission review of Appeal Board decisions is (Footnote Continued] 58
-*m Wn~;Wmzm wyyMMdW- .
- -- .. . ~- ---
. . - . . . . ~. . . _ . . - - .. _ : .. . . . - . . . . . . . . .
I i j.; - :. . : . rNRCis; requirements for design quality assurance.' The IDVP, . jaa: . the Appeal Board's decision in affirming tha.-adequacy of.the . i j-r-- --
- :IDVP, and PG&E's response to the Yin concerns?to the satis- -
l '- le
= faction of the Peer Review Group and the ACRS, all support. ". _. _z-b: P.=r t:the-Commission's determination that its design QA require- .
l*5
.:- --ments:had been met. The existence of one dissenter.among. . .
j i .- - -'..:the many NRC staff experts who reviewed Diablo Canyon's. . ..
! design QA does not support a claim that the Commission's I . . . . _ . _ . .
!r ..
reliance on the techn,1 cal views of the overwhelming majority-j.. - -
,,- of its experts was arbitrary or capricious. :_ wherei as- . - .
here, the evidence in the record overwhelmingly supports the q - Commission's judgment on an issue entirely within the 4 . Commission's special technical expertise, that judgment-should be affirmed. I J k ( l f' A 1 a 1
,i 1
60 agn,pm g. r..
. c .s .. c. ; w,c , .3.;n.:(;> .' NT>~ . : w- n~"J~~~~'~"~~ '~-~~~-~~--
.: .. - . . . . . . . . ~ - . . .. - . . . . - ---. -. - - - - .--
-f- .
' b -
H.
- . . jurisdiction has been the power of the chancellor to M4. 2; _ ..:.. ... _ u; -
'do equity and to mold each decree to the necessities
- 'of.the particular case. Flexibility rather- than ~ -
g rigidity has distinguished it." ....
.l In exercising their sound discretion, courts of
'f =. -,u.. : equity should pay particular regard for the public -
.r '
- 2 i , [ *i . consequences in employing the ext.raordinary remedy
, ;;l -- s - . of- injunction. . . . The grant of jurisdiction to . .. : '.A ensure compliance with a statute hardly suggests an b- n.. - - .. absoluta duty to do so under any and all circum- '--
F
; .; stances, and a federal judge sitting as a chancellor t .n.. . .. is not mechanically obligated to grant an injunction ~ - --
for every violation of lav....
.l~
.. .... ... . . . . . . - . . = .. . . = ... ..
A Id. at 312-313' (citations omitted) . As this court has also
.)..
r.
,' noted:
=- . . : .- ...-- -
What is called for, in each case, is a "particu-
. ~larized analysis" of the violations that have -
; occurred, of the possibilities for relief, and of J any countervailing considerations of the public -
i ;j interest. j NRDC v. NRC, 606 F.2d 1261, 1272 (D.C. Cir. 1979).
- e l M TheequitiesinfavoroflicensingDiabloCanyoN~aie~
[ powerful. They are set forth in detail in the earlier-filed NRC and PG&E oppositions to petitioners' stay request. See M l
,] also, PG4E's " Petition Based on New Developments, Filed i,.
Pursuant to Fed. R. App. P. 35 (a) and 40, For Expedited i ( Reconsideration and Suggestion for Expedited Rehearing on, b banc." In brief we note that Diablo Canyon is a completed
.1 project, found by the commission to be ready for safe opera-tion. It costs PG&E, its shareholders, and its customers a
{.1 substantial unrecoverable sum- for Diablo Canyon to sit idle. ( 1 Additionally, a substantial amount of oil is consumed in s
) providing the power that Diablo Canyon would generate from h: nuclear fuel. In view of these substantial public and private
[ interests, if the Court finds legal error in this case, that 62 -
$"wmwnnmt'a rv - - M." :- w v.-- mmm: n -- er .
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f i
..;:c.
..., . considerations."
M. at 24.40 In other words: "NEPA does not . . . 1
' .- -;.,;;c _ foreclose the application of traditional principles of 4
! . . :. . . ;_ ,injunctive relief."
i M. at 26. ---:.:-- : : : ."
! ; ,. a _t- m c.: . The theoretical justification for: treating a,NEPA :' --
] ._ : _ ;-:. violation as irreparable injury supporting an injunction rests -
1 j- .,upon the procedural nature of NEPA. d
,I_d,. at.17. - Because NEPA 1
, 1.. -
- requires that environmental values be considered by the - - ' * ~
I t.... . . decision-maker, the fear is that the statute.will not be . .. -- j . : + . . . implamented properly if the decisionmaker ir predisposed to .. . I j..- favor a particular outcome. Commitment of resources to a . j project pending satisfaction of NEPA requirements is perceived . l
.j as_irteparable injury because of the influence.such commitment I
i ,,_. might bear on the objectivity of the decisionmaker. ___ Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983). I. l 1 As noted in Wisconsin v. Weinberger "this interest 3 i l will be only marginally served by the injunction of an ongoing j project...." M. at 27. (Emphasis in original) . In such a situation "the commitment entailed by the remaining construc-tion effort ... is relatively small, and thus the injunction's service to NEPA in preserving unbiased decision-making would 1 40 g We recognize that some decisions in this circuit speak
'j generally of a " presumption" in favor of "injunctive relief in NEPA cases." Realty Income Trust v. Eckerd, 564 F.2d 447, 456 4 (D.C. Cir. 1977). It is clear, however, that in cases
, involving the question of whether to enjoin an on-going project "(w] hat is called for . . . is a ' particularized analysis' of the violations that have occurred, of the .
possibilities for relief, and of any countervailing
, considerations of public interest." Alaska v. Andrus, supra, i 580 F.2d at 485; Realty Income Trust, supra 564 F.2d at 456.
q.
' 64 " ' ~ - ~ ' ~ = - '~ " ~~'~ ~
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. _ _ . . . - . . . _ .-- ... ._ -.m. , . . _ . . _ . . . . . . . _ . .__
5 I i .
. . . ......pu.bl..i.c.ly committed itself to a continuing monitoring" of.th.e.
g_g.::-_;. environmental question at issue here, i.e. the probability and . [ . .. ,. potential effects of reactor accidents. Id.[2 , ,, ,, , , , .L,
.I J ;. se.i. In short, even if this Court were-to accept . -
i* .
] , .. _ c . . . petitioners' NEPA claim, it clearly should not enjoin the_. ; .. . . . .
l[ y .;. licensing of Diablo Canyon while the SEIS requested by. .- i j ,;. .. petitioners is prepared. Moreover, the need.to balancemthe . , - - 1
'1 , .,.. equities before enjoining the licensing of Diablo Canyon is . .:
__-,__ = l3 y _ .,,...not, limited to petitioners' NEPA arguments...Similarly,. ..
- . petitioners other assertions of legal error - even if , , ,
.. accurate (which they are not) - would not affect the safe , , ,
J ,, operation of Diablo Canyon. _. ,,,.. , i If this Court were to accept petitioners' argument that the Commission has committed legal error in failing to
- follow the letter of an anachronistic regulation regarding the ,
licensing of individual operators, see Argument II, supra,
~
that violation of law would not justify an injunction against , l the licensing of Diablo Canyon. As noted above the regulation H
~
, ) at issue has been consistently interpreted and applied by the
.1
, .] NRC as it was interpreted and applied here. This unbroken, I y long-standing practice of testing and licensing individual i operators of nuclear power plants has not been ineffective or
~
unsafe in the past, nor is there reason to believe that it
.C z
1-N n The NRC's commitment to monitor the continuing safety j of Diablo Canyon is more than a gratuitous promise; it is a
.i solemn obligation imposed by the Atomic Energy Act.
- ,1 i ?
Il
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6 .w - - - ;. - - - - - - - - -
i 1 .:.r, :. e significant, substantive, and uncorrected quality assurance jr . .:...n :yiolations, we do not suggest for a minute that an operating ._ . ..
,h ; g ; . - : : , license should, nonetheless, issue. No evidence remotely - _. . 5 f .u .u .. . approaching support for such a finding exista- in- this case,. . c t.
i' .- however. Indeed, petitioners' construction quality as.scrance - I . : ,.m p'. n . ; argument is entirely procedural in nature. . Pet..Brief, , a j : . . .- - - Argtunant IV. Moreover, with regard to both construction and a
. . . . . . . design quality assurance, petitioners do no more,thap.. vaguely. _
g
- . . . . --allege unspecified uncorrected constructian or design errors. . .
l- . Certainly to justify the extraordinary remedy _.of an- _ ;. . . , 3.- 4
-1 - injunction, petitioners should be required to.at least . .. .
; .- identify a specific, uncorrected construction or design error
~l that threatens safe operation of the plant. As..this court has
] recently noted, the fact that the NRC may have been found to
., have committed procedural error does not even "suggest" that it has failed to " maintain () consistent vigilance over the
]
safety of nuclear power plants" or that it has failed to
] " monitor () compliance with safety requirements at each nuclear i
i
} reactor on a day-to-day basis." Union of concerned scientists I
n, v. NRC, 711 F.2d 3'70, 383 (D.C. Cir. 1983). While we strongly dispute petitioners' claims of procedural error in the 4 treatment of their quality assurance claims, even if those . f !9 claims had merit, they would not support an injunction of !2.s l Diablo Canyon's license to operate. S 68
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s e 4 e APPENDIX ._ L 9 6 9
*.l J
9 9 e N u O e t 1
.t 9
P' 7 6
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r ,._._. . . :. . . . _ _ _ . . . - . . . _ _ ...... ... .,_... . _ . i APPENDIX MAJOR RELEVANT DIABLO CANYON ADMINISTRATIVE DECISIONS > 1
. l '-
I LICENSING BOARD I. LBP-78-19, 7 NRC 989 (1978) (First Partial Initial Decision, reviews environmental and certain health and safety issues) LBP-79-26, 10 NRC 453 (1979) (Second Partial Initial Decision, f reviews risks of aircraft and missile crashes, seismic j risks and security plan). LBP-81-17,13 NRC 1122 (1981) (Denies motion to reopen the record to consider " Class 9" accidents) LBP-81-21,14 NRC 107 (1981) (Third Partial Initial Decision,
,, authorizes fuel loading and low-power testing and reviews, i .,
inter alia, quality assurance and emergency planning) LBP-81-27, 14 NRC 325 (1981) (Allows full-power proceeding to be reopened to include, inter alia, emergency planning) LBP-82-70,16 NRC 756 (1982) (Authorized full power license, reviews, inter alia, emergency preparedness) 1 i d a i . k i .! . 4, I
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s i
- a' 3
COMMISSION
'CLI-81-22, 14 NRC 598 (1981) (Allows Licensing Board low power :
- decision, LBP-81-21, to become immediately effective) '
CLI-81-30, 14 NRC 950 (1981) (Suspends low power license)
*~ CLI-82-12A,16 NRC 7 (1982) (Declines review of ALAB-644
'regarding seismic issues) .
CLI-83-27, 18 NRC 1146 (1983) (Reinstates fuel loading and
;. . pre-criticality testing) l CLI-83-32, 18 NRC 1309 (1983) (Denies review of ALAB-728 regarding emergency planning and " Class 9" accidents) ~
CLI-84-4, 19 NRC 937 (1984) (Requests views on whether ' Commission should consider the complicating effects of t earthquakes on emergency planning at Diablo Canyon) CLI-84-5, 19 NRC 953 (1984) (Reinstates low powe'r licensing, reviews quality assurance, design verification, and 4 operator training) CLI-84-12, 20 NRC (Aug. 10, 1984) (Rejects requirement to ' consider the possible effects of earthquakes on emergency planning) CLI-84-13, 20 NRC (Aug. 10, 1984) (Allows Licensing Board full power decision, LBP-82-70, to become immediately
, effective, denies stay of full power license)
CLI-04-14, 20 NRC (Aug. 20, 1984) t' Denies review of ALAB-763 l regarding design quality assurance) I se ! I I t M:=~rz ,y ;:n
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