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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION ,
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1 IN ATOMIC SAFETY AND LICENSING APPEAL BOARD: b Algie A. Wells, Chairman Dr. John H. Buck Dr. Lawrence R. Quarles
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IN THE MATTER OF )
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-PACIFIC CAS AND ELECTRIC COMPANY ) DOCKET NO. 50-323 (Diablo Canyon Nuclear Power Plant, ) ;
Unit 2) )
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DECISION l On December 8,1970, the Atomic Safety and Licensing Board convened l to preside in this proceeding rendered an initial decision authorizing the issuance of a construction permit to the Pacific Gas and Electric Company (the applicant) for a pressurized water nuclear power reactor. The new facility, designed to operate at 3250 MW (thermal), with ultimate capability of producing 3580 MW (thermal), is to be constructed adjacent to the applicant's Unit No. 1, a nuclear power reactor previously authorized for construction at the utility's Diablo Canyon site in San Luis Obispo County, California.
The initial decision was accompanied by a separate opinion of one of the Board's members who, while expressing certain procedural reservations ,
j concurred in the ultimate findings of the Board supporting the issuance
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of a construction permit.~1/
1/ These findings consist of affirmative findings on items 1-3 and a negative finding on item 4, specified in the notice of hearing published in the Federal Register on November 19, 1969. (34 F.R.18439) .
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C,0NNOR B7-214
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1 2-i On December 30, 1970, the Scenic Shoreline Preservation Conference, The Inc. , an intervenor party, filed exceptions to the initial decision.
Conference makes a number of objections and requests, which are grouped ;1 1
j under six categories of exceptions. As its first exception, the Conference requests the Comission to rescind the issuance of the construction permi:
pending judicial determination of the validity of Appendix D to Part 50 of ,
the Commission's regulations, which Appendix implements the National i
1 Environmental Policy Act of 1969 (NEPA) in AEC reactor licensing proceedings.
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The Conference notes that this question is now before the United States Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Committee, Inc., et al. v. United States Atomic Energy Commis_- l l
l sion, et al. (No. 24,871) . Second, the Conference asserts that the provisions l
of the Water Quality Improvement Act of 1970 (WQIA) are applicable to this proceeding and it requests the Commission to rescind the issuance of the construction permit and to postpone further action until the applicant has complied with the provisions of that Act.
As its third exception, the Conference asserts that it was denied the right fully to present its case, resulting in an incomplete record. It goes on to requeat that the hearir.g be reopened for further development of the record. Fourth, the Conference asserts that the initial decision is seriously deficient as respects the ef fect on plant design of seismic and geological conditions; and it contends that the decision does not provide reasonable assurance of protection to the public health and safety, within the meaning of Section 50.35 of the Commission's regulations (10 CFR 50.35). Fifth_, the Conference claims that
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K the initial decision is deficient in failing to require satisfactory I
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resolution of problems associated with the calculated design-basis I accident. As its sixth and final exception, the Conference challenges ,
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the adequacy of the emergency evacuation plan for the facility. l The applicant and the regulatory staff filed briefs in opposition to the exceptions of the Conference.
Pursuant to $2.785(a)(1) of its Rules of Practice,10 CFR Part 2, the Commission has delegated to the Atomic Safety and Licensing Appeal Board the authority and the review function which.would otherwise be exercised and performed by the Commission in this proceeding. Consistent with that responsibility, we have reviewed the record and have given careful consideration to the filings submitted by the parties. On the basis thereof we have concluded that the Licensing Board's authorization of construction permit issuance should be affirmed. Our views with respect l
to the contentions of the Conference are discussed in detail below.
Seismic and Geological Conditions We believe it appropriate to begin our discussion with the fourth _
j exception asserted by the Conference, since it relates to the paramount i j
l issue set out in the notice of hearing - whether the Diablo 2 f acility' i l
can be constructed and operated without undue risk to the health and safety of the public. As noted above, the Conference charges that the initial decision is deficient as respects the effect on plant design of
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seismic and geological conditions. The Conference further claims that l
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serious uncertainties exist as to the completeness of the record on the earthquake potential of the Diablo region and that further . studies and-hearings should be conducted prior to authorization of the issuance of a construction permit.
The position of the Conference is two-fold. One aspect 'of its position is that clusters of earthquake epicenters offshore from the Diablo .2 alte indicate a northeast-southwest trending ' fault which could lead to- greater a- 'smic impact thee the plant design criteria can accommodate. - The other aspect of the Corierence's position 'is' that there exist onshore near the Diat lo site three f aults - the "Los Osos", Edna and West Hussna which relate geologically to each other and align in such-a way that they I
l create an carthquake hazard which is unaccounted for in the Diablo 2 design.
The Conf erence's position is based largely on the testimony of ;
Ralph Vrana, an instructor in physical geology at the California State Polytechnic College. According to Mr. Vrana, recordings of earthquakes in reports of the United States Coast and Geodetic Survey showed their epicenters to align offshore in a northeast-southwest direction, suggesting a trending fault in that direction. (Tr. A ug. 69-74) . Mr. Vrana further suggested that this fault could be an offshoot of the well-known Murray .
f racture - zone (Tr. Aug. 74-76) and, if so , according to the witness ,
could place the Diablo 2 site in a " region of no. construction".
(Tr. A ug. 76) .
i Mr. Vrana did not, however, advance the foregoing as a positive asser-tion but merely to suggest further investigation. (Tr. Aug. 76, 92-94) .
Moreover, by his own testimony he indicated that a seismological laboratory at Pasadena with which he had consulted on the matter did not know whether l
the clusters of epicenters offshore were accidental or really expressed something important. (Tr. Aug. 74) . And by his own admission, he indicated that this alignment of clusters could be " fortuitous".
Thus, the assertion of Mr. Vrana in this regard is plainly speculative.
There is, moreover, strong evidence in the record which disputes the validity of this hypothesis. According to a Ieport of the U. S. Geological Survey, four traverse lines run in 1968 show the offshore geology to consist of northwest-southeast trending parallel structures. (Tr. Aug. USCCS Supp.
l Rpt, p. 2). The report also states that there is no evidence of any structural trend extending northeastward from the area of concentrated l I earthquake epicenters. (Tr . A ug. USCGS Supp . Rpt . p . 2) .
There was also testimony indicating that geologic structures cannot be defined by small earthquakes of the magnitude put forward by Mr. Vrana (Tr. Aug. 95,127,133); and Mr. Vrana admitted that he knew of no examples in the Western United States where major s:ructural trends could be defined I t
by small earthquake epicenters. (Tr. A ug. 95) .
The testimony of Dr. Richard H. Jahns, Professor of Geology and Dean of the School of Earth Sciences, Stanford niversity, and Dr. Stewart Smith, Professor and Chairman of Geophysics at the University of Washington, negates
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1 any geologic relationship between the clusters of offsiere epicenters .j
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and the Murray~ fracture zone. There was testimony indi: sting that such l
0 an association would require an offshoot at an. angle of 30 to 45 ; and Professors Jahns and Smith concluded that this would involve inconceivable (Tr. Aug . 104-106 , 126). There is no evidence rebutting j mechanics.
that view.
In this regard, the Conference charges the Licensing Board with raising the issue of whether or not a northeast-southwest trending fault 2/
exists and then " sidestepping" it. We think that this is too narrow a reading of the Board's decision. ' While the initial decision did not return, in terms, to the specific question it had earlier raised (as quoted in the margin below), a negative finding on the existence of such a _ fault is, we
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- 2) The Licensing Board's decision stated in this connection:
"If there were indeed a northeast-southwest fe;1t I along the line suggested by the epicenters, and if the fault intersecte'd the coastline at or near the plant site, the predicted earthquake from the depicted length of this inferred f ault would likely exceed. in .
magnitude the on-site shaking from the design-basis earthquake described in the PSAR. Data preser:ed to.
the Board during the August . hearing indicate' that this would be true whether or not this postula:ed f ault was further connected to the Murray Frae:ure Zone. The Board thus concludes that a fault z:ne trending as suggested by the Conference would be significant- to the Diablo seismic considerate n.
l If it were concluded that this fault exists, f;rther consideration of the possible connection to M.:rray would be' required to establish the new design-basis- i earthquake. If it is concluded that the probability l of existence of this fault is too low to warrant l
further consideration, then its possible connection to 'Murray is of no importance." i l
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think, the only one which is consistent with the ultimate safety finding I
made by the Licensing Board. In any event , we conclude that the existence f
I of an of f shore f ault, as suggested by the Conference, is not supported by the record.
Turning to the Conference's onshore contention, the "Los Osos" fault has not been mapped (Tr. Aug. 83, 184-185); and it has not been identified by any witness other than Mr. Vrana. Apart from the latter's claim that he located such a fault (Tr. Aug.117), there is nothing in the record to support the existence of the "Los Osos" fault. Moreover, no epicenter activity of record can be correlated with this fault. 1 I
Mr. Vrana appears to claim that the Edna and West Hussna faults are genetically connected, and, hence, could jointly contribute to the magnitude of an earthquake. This claim is not supported by the evidence. The Edna is predominantly dip-slip, and has, in fact, a sinuous trend which would J preclude much strike-slip. (Tr. Aug.162-164; USCGS Supp. Rpt. p. 2).
The West Hussna is, on the other hand, a strike-slip fault. (Tr. Aug.
164; USCGS Supp. Rpt. p. 2). Their characteristics preclude a genetic connection. (Tr. A ug. 164-165) .
There is no historic record of any seismicity occurring along the I Edna or West Hussna faults. (Tr. Aug. USCGS Supp. Rpt, p. 2). There is no evidence of movement along these two faults since late pre-late Pleis-tocene time (Tr. Aug. USCGS Supp. Rpt. p. 2; Tr. Aug.139-141); and deposits of middle to late pleistocene age and later along the Edna fault do not appear to have been disturbed. (Tr. Aug. USCGS Supp. Rpt. p. 2). Attempts to
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-l relate recent minor earthquakes to these faults are not substantiated by the evidence since epicenters of such small earthquakes cannot be located accurately. (Tr. Aug. 44-45) . The evidence therefore indicates no activity of these faults probably for over 100,000 and possibly over 1 l
l 500,000 years. (Tr. Aug.140; USGS Report , Staff's Safety Evaluation, App. D-2) .
The question of the magnitude of an earthquake due to combined action of the "Los Osos," Edna, and West Huasna faults, ss argued by the Conference, thus becomes moot. There is no sound evidence of the existence.
of the "Los Osos," and there is positive evidence the other two are not
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genetically related.
We disagree then with the Conference's contentions in regard to l
l matters of geology and seismology. Far from being deficient, the record of the proceeding amply supports a favorable _ initial decision in this regard. As to any ambiguity in certain portions of the Licensing Board's background findings, we agree with the position set forth by the regula- ;
tory staf f in its brief in opposition to the interveners exceptions , i.e. ,
that Findings 5-12 of the staff's Supplemental Proposed Findings of Fact and Conclusions of Law are supported by the record and provide a sound basis for the conclusion that the facility's seismic design is adequate.
National Environmental Policy Act Turning to the Conference's first exception, concerning NEPA, it is our view that'the Licensing Board was correct in declining to delay action w.__--__ . _ _ _ __ _ _ _ _
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operating license stage but are to be forthcoming as soon as practicable. I
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Furthermore, a so-called "NEPA condition" has been added to all such permits compelling compliance with applicable Federal and State non- -
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radiological standards and requirements.
_j The Conference asks that we disregard the provisions of Appendix D because, as it notes, these AEC regulations are presently the subject of ,
judicial consideration by the United States Court of Appeals for the District of Columbia Circuit in connection with the' underlying Commission- 'l 1
rule making action. Such a course, in our view, would be inappropriate.
While such litigation is , indeed, pending, the regulations as they exist must be the standard by which Licensing Boards, and the Comission itself, govern their actions in this regard.
Water Quality Matters The Conference asserts, in its second exception, that under Section i
21(b) of the Federal Water Pollution Control Act, the Licensing Board must determine water quality standards for the Diablo 2 facility. The j
Conference argues, in this regard, that the absence of Federally approved !
California water quality standards requires the Licensing Board to fix its own water quality standards for -Diablo 2. In any event , the Conference ;
argues, the thermal ef fects on adjacent. Facific Ocean waters resulting from operation of the proposed facility are required to be considered under NEPA because "such evidence is relevant to the environmental f actors that must be considered before a construction permit is issued."
1/ The public file in this ' proceeding reflects, in this regard that this and other new regulatory requirements imposed by the Commis-sion's revised NEPA regulations have been specifically brought to the applicant's attention by a letter dated February 9, 1971.
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permit was issued to Pacific Gas and Electric Company on December 9, 1970. Thus, the applicant must obtain a certification before December 8, 1971, or the permit is to " terminate".
As regards the Conference's assertion that, ir. any event, NEPA requires AEC licensing consideration of water quality matters here, the response on our part is directed by the Connission's NEPA regulations ,
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l Appendix D to 10 CFR Part 50. Those regulations state that, in regard to " matters of water quality covered by section 21(b) of the Federal Water Pollution Control Act . . . the requirements of sec :fon 21(b) t supersede pro tanto the more general requirements of sections 102 and 1/
103 of the National Environmental Policy Act of 1969."
In view of the foregoing, we must deny the Conference's second exception.
1/ 10 CFR Part 50, Appendix D, para. 9. Paragraph 14 of Appendix D goes on to provide for the inclusion of a license condition requiring compliance with applicable requirements of Section 21(b) of the FWPCA.
I (5) The Licensing Board should have granted a third day of hearing prior to closing of C.a record on March 18, 1970, to permit cross- I examination on technical information submitted by the applicant after the initial hearing dates and to allow the Conference to -
submit additional evidence.
(6) The scheduling of a third day of hearing (August 7,1970) for the limited purpose of allowing the staff to present additional data on geological and seismological matters was unduly restrictive.
(7) The 18-day advance notice given by the Licensing Board for the third hearing date was inadequate.
(8) The lack of prompt action by the Licensing Board in responding to hearing requests was " destructive of an orderly hearing procedure."
(9) The Conference was denied the right to cross-examine the applicant on late-filed data regsrding radiation impact upon red abalone.
Our views as to each of these contentions are set forth, seristim.
As regards the Conference's first three contentions, relating to the Gofman-Tamplin statement, it is our view that, in all three instances, l
the Board's action was within the ambit of its discretion. The first ;
l l occasion when this question arose was on cross-examination of the appli- 1 cant's witness by the intervenor. (Tr. Jan. 138) . The Board ruled that I the statement could not be used as a basis for cross-examination on the ground that "there has been no testimony in this record on which you can
f The Conference's fourth and fif th contentions relating to procedural I matters similarly lack merit. As regards the complaint that the hearings on January 13 and 14, 1970, did not allow the Conference sufficient time properly to present its case, we note that a".1 of the parties, including i
the Conference, completed presentation of their cases at these January l sessions. In fact, the Conference completed its case on the first day of the hearing because it had planned not to be present :he next day and was, in fact, absent that day.
At the hearing on January 13, the Conference presented only one witness, Dr. Peter Mason, a professor of geography at the University of California at Santa Barbara. The testimony of this witness was primarily concerned with meteorology, hydrology and the shoreline erosien near the plant.
Intervenor McMillan presented Mr. Vrana who testified essentially on seismic matters; but the Conference declined cross-examinati:n of Mr. Vrana.
Even with two days of scheduled hearings and with knowledge afore-l hand of the issues to be considered, the Conference chose to limit its I case to the presentation of a single witness and to '.imit its participation in the proceedings to only one day.
In these circumstances , the Conference's comple'.nt that it was not af forded adequate time to present its case, to cross-examine the witnesses of the other parties, or to present rebuttal witnesses at the January hearings lacks substantial merit. The record shows :nat the Conference l i
i just did not utilize the opportunity accorded it to do so.
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As regards the adequacy of the notice period, the 18-day advance notice of the August 7th hearing is certainly not inadequate on its face.
Commission regulations do not prescribe the conditions for reopening hea rings , leaving such matters to the discretion of the presiding boards.
In the circumstances of this proceeding, we are not prepared to conclude that the Licensing Board abused its discretion in scheduling the hearing and issuing the notice when it did. Indeed, the Conference was able to present the seismic testimony of its witness at the August 7th hearing and to conduct extensive cross-examination of the applicant 's and regulatory staf f's witnesses.
This leads us to the eighth procedural contention advanced by the
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1 Conference - relating to the Board's diligence in acting on requests for additional hearing sessions. It is desirable, of course, for a Licensing Board to act upon matters before it with reasonable dispatch; and one i
Board member believed such dispatch was lacking in this proceeding (Dr. Pigford's concurring opinion at p.11) . While core expeditious action by the Board might well have shortened the overall length of this l
proceeding, we cannot say that the time taken "was destructive of an orderly hearing procedure" or that the delay was prejudicial. Certainly, the Conference has not shown that it has been prejudiced by the time taken in this proceeding.
As its final procedural complaint , the Conference esserts that it was denied the right to cross-examine the applicant on late-filed data regarding the impact of radiation on red abalone. The abalone question L
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of the hearing. We believe, moreover, that the abalone matter should be viewed in its proper context, i.e.,
a matter whose ultimate treatment will be determined by radiological surveys still to be conducted. This question was first raised by the. Conference in the Diablo 1 proceeding, The initial decision in 'that proceeding stated as follows: a
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"The Applicant will make pre-operational and post-operational radiological surveys in cooperation with j
the Fish and Wildlife Services of the U. S. Department of Interior, the Federal Water Pollution Control .
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Administration, and the Water Resources Agency of '
Ca lifo rnia . These surveys are recommended by the Fish and Wildlife Service for the ~ purpose of acquiring data on the concentration of radioactivity in various organisms so that steps can be taken, if necessary, to establish safe levels of such concentration and to limit the radioactive discharges accordingly. Red' abalone, for example, is of some importance in the area, and as a result of questions raised by the Scenic Shoreline Preservation Conference, Inc. , and Mr. Ernest Porter, the Board gave particular attention
, to the agreement that arrangement for these surveys would be made.. The Board considers the operation of this program essential for the . control of radioactive discharges." (Initial Decision, In the Matter of Pacific Gas and Electric Company (Diablo Canyon) Docket No. 50-275.)
The initial decision in the instant proceeding notes that these surveys will 1
also be conducted with respect to Diablo 2 and that they will be studied by various State and Federal agencies in addition to studies they may conduct l on their own. Thus, we are satisfied that adequate safeguards exist fo r assuring the public health and safety as respects concentration of radioactive elements in red abalone.
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1 We think that the applicant and the staff were correct, for the '
purposes of 10 CFR Part 100, in calcdating the desi6n-basis accident dose on the basis of a " standard man". As noted by the staff in its brief in opposition to the Conference's exceptions, it has been the I
consistent and lon6-standing practice of the staff, since Part 100 was l published as a " guide" on April 12,1962 (27 F.R. 3509), to use the dose j calculations for the a*verage adult as the standard for the purposes of Part 100. TID 14ch4, identified in the " NOTE" to 10 CFR Part 100 as j containing a sample calculation which may be used for further guidance q l
1 in developing the exclusion area, low population zone, and population {
center distance, sets forth the sample dose calculation for adults.
It is important to recognize, however, that 10 CFR Part 100 is not intended to set exposure limits in accident situations - rather, it is i
a guide for site evaluation purposes. This is made clear, we think by 4 Section 100.11 and Footnote 2 to that section. Section 100.11 l
(" Determination of exclusion area, low population zone and population !
Center distance") states, in relevant part- l l
"(a) As an aid in evaluating a proposed site, an i applicant should assume a fission produce 81c] I release M from the core, the expected demon- '
strable leak rate from the containment and i
j Having used this guideline (on the basis of a " standard man") to l l
- establish a reasonable minimum exclusion zone, one must then consider i
the effects on individuals (as contrasted to the " standard man") if an accident should occur. Obviously, at the minimum exclusion distance l under the worst conditions of a design-basis accident an active person i with a smaller than average thyroid mass could receive a greater than l
300 rem dose to the thyroid g allowed to remain at this position for two hours or longer. This can, and should, be prevented from happening by a properly designed and effectuated emergency plan v'11ch will begin evacuation of priority personnel such as children long before the two-l hour limit.
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Emergency Evacuation Plan As its sixth and final exception, the Conference attacks the issuance l
of a construction permit for the lack of an adequate evacuation plan for
! the Diablo region and surrounding areas. The Conference admits that l 10 CFR 6 50.34 of the Connission's regulations requires en emergency plan, specifically, only in connection with an operating license applica-tion, but it asserts that this "does not preclude consideration of matters relating to evacuation policy at the construction permit stage." The l Conference also points to Section 50.35 (a)(4) - which specifies that a construction permit will be issued only where there is " reasonable assurance" that the proposed facility can be constructed and operated at i
the proposed location without undue risk to the health and safety of the
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General Observations
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"Ahart ' f rom our . holdings on the e.xcer'.fons ; filed by the, Conference , . ,
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ve believe that some oth'er' ' observations are warranted: . , l
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-l (I) de note that the recor'd ' includes' little- edisbussidd.of: the )
{ matters requiring further research adE'dcYelopment. >>
While'~e ;
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' , j consider the state of the record :16~ this respect as adequate' 1
for the construction' permit in view of the writtAN evidence '
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presented, ve wish to struus'the importance we attach to the-
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! timely identification and resolution of those'safbty. oriented i
research and development items which may be required before an operating license may be granted.
L (2) Some reservations on procedural matters vere expressed by Licensing Board member Pigford in his concurring. opinion.-
We desire to comment on his concerns. As we read Dr. Pigford's i t
opinion, he agrees with the other members of the Licensing
'Boord that there is reasonable assurance that' the proposed facility can be constructed and operated at the Diablo l
Canyon site without undue risk to the health and safety of j the public. That his reservations do not in any way affect i
his safety conclusion is evident by his statement.that:
"Whether or not these reservations or procedural [ I questions have any bearing upon the completeness of the decisional record and upon the proposed order is beyond my technical. qualifications as a member of this Board. If, in its review of this ;
decision, the Commission decides that these pro- !
cedural reservations have no such bearing, I will strongly support the order to issue a construction pe rmit ."
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[ ,In our discussion of the Conference's procedural exceptions, we 1
j- have stated our conclusion with respect to each of its contentions.
l-Our view with respect to these and to Dr. Pigford's procedural reserva-tions, may be summarized by ' stating that there-was adequate opportunity
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, for the development of a satisfactory record on health and safety issues and, indeed, such a record was developed.
In view of the foregoing, ve. deny the requests and exceptions filed by the Conference. Accordingly, in; t,he absence of further review by the Commission on its own motion pursuant to 10 CFR E 2 786,, the '
initial decision will constitute the final action of the Commission on June 29, 1971.
It is so ORDERED.
By the Atomic Safety sud Licensing
. Appeal Board L) g .
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William Woodard l- Assistant Executive Secretary l
i Dated: June 14, 1971
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