ML20236L565
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l UNITZD STATES OF AMERICA ATOMIC ENERGY COMMISSION b
In the matter of
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I PAC:?IC GAS AND ELECTHIC COMPANY
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Docket No. 50-323 (Diablo Canyon Unit 2)
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Excentions to the Initip1..Dectfd21_gpd Briefs to the Commission 1
Scenic Shoreline Preservation Conference, Inc., files the l
following exceptions to the " Initial Decision Atotic Safety and i
1 License Board" in compliance with 10 CFS 2,762 I
1 Key provisions of the Atomic Energy Commission (Commission) regulations promulgated December 3,1970 (Federal Register, Dec-ecter 4,1970) to implement the National Environmental Policy Act of 1969 (NEPA) are currently being challenged in the United States i
l Court of Appeals for the District of Columbia Circuit.
(Calvert Cliffs' Coordinating Committee, Inc., National Wildlife Federation, and Sierra Club v. United States Atomic Energy Cosnission)
The i
court decision will have a direct bearing on the issues being reviewed by the Commission and will affect the nature and validity of any decision rendered by the Commission.
Conference,therefore, requests that the Commission rescind the provisional construction permit pending the outcome of these court deliberations.
1 1,1 Specifically the petitioners in the above case request the to hold inval!d the portion of Appendix D of ?srt 50, Code of l
court Federal 3egister (December 4,1970), which (1) prohibits the Commission frot imposing environmental conditions on construction permits and operating licenses more stringent than standards set by state and j
federal agencies; (2) postpones the effective date cf the requirement that hearings for construction permits and operating licenses include i
a hearing on environmental factors until March 4,1971; (3) refuses to require that nuclear power plants be backfitted with the most advanced available equipment to reduce environmental impact of these plants; (4) postpones full compliance with NEPA by the Commission beyoni December 3,1970; (5) refuses to require all cuners of nuclear power plants which now have construction permits and for which operating licenses have not been issued to show cause why their construction i
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l permits should not be suspended pending a full investigation of the environmental impact of the nuclear power plant as required i
by hEPA.
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1.2 On July 13, 1970 Conference requested the Commission to i
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order the Applicant to prepare an environmental statement pursuant to NEPA and the regulations of the Commission, and delay considera-l tion of the construction permit for Diablo 2 pending investigation of I
l these environmental factors.
(Initial Decision 4, pB).
On August l
1 7,1970 the Board denied the Conference requests of July 13, 1970.
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(Initial Decision 5, #11),
on August 31, 1970 Conference submitted i
a request urging "the Board and Commission to reject the views of the regulatory staff and to bring AEC policy in line with Congression-al candate by with holding action on the request for a construction pertit for Diablo Unit 2 until the applicant and the AEC have fully J
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complied with the requirements of the National Environmental Policy j
Act and the Interim Guidelines of the Council on Environmental Quality."
(Reply of Scenic Shoreline Preservation Conference, Inc to Regulatory 1
Staff Memorandum (July 23, 1970) and Request for Rule Making ")
l On November 26, 1970 Conference renewed its motion for posty onement of any 'decicion on the application until reopened hearings are scheduled on the environmental statements to be completed by the Applicant o
I and Oommission as required by lam In itc InQt.a1 Dapision (December 8, l
l 1970)(27,#3) the Board denied this request.
I 1.3 Passage of NEPA was recognition that immediate action was 1
necessary to prevent any further deterioration of the environment.
The Act in no way contemplates a " break-in" period during which time less that full compliance with the requirement for a detailed statement would be permitted..
The courts have recognized that the detailed z,
environmental statement must be prepared even where review of the proposed Federal action was contemplated before January 1,1970 but where 1
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3 the approved action had not been taken.
(Texas Committee on Natural Resources v. United States (U. D. Tex. ), February 5.1970, C. A.
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l No. A-69-CA-119) (For further discussion of the case, see " Reply of Scenic Shoreline Preservation Conference, Inc., to Regulatory Staff flemorandum (July 23, 1970)...")
j Other court decisions stress the importance of compliance now with the NEPA statement requirement prior to issuance of a construc-1 tion permit.
(The Wildernese Society v. Hickel __ F. S.
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1335 (D. C.1970)) (Siprra Clul v. Lalni District Court, Arizona, June 23,1970) (Zabel v. Tabb __. F. 2d __, (CA 5), 1 ER 1449, 39 L. W. 2047, July 16, 1970)
Even if a delay in compliance with NEPA were permissible, a clear showing would be necessary of an overriding need for haste in processing the application.
In the caso of Diablo units, no such need has been demonstrated.
In fact, in reviewing the application for Diablo Unit 2 the Board did not exhibit any sense of urgency or haste 3
in its schedule, an observation further substantiated by comments in the concurrent opinion by Dr Pigford (Initial p_ecjj;1qn,11, #7. )
Reference to the growing energy requirenants in the nation is not I
sufficient justification for cpcedy review.
Analysis of power needs,
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i projected completion date of the facility, the time required to pre-1 pare the detailed environmental statement all must be weighed against the clear mandate to report and evaluate the environmental impact of the project and the alternatives to prevent or mitigate the l
impact.
With respect to Diablo Unit 2, both the Applicant and CoEnt ecion had ample time to prepare the environmental statement.
Conference 1
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4 takes issue on this point with the Board (Initial Decision. 25, #42),
l The act became operative January 1,1970 prior ~ to the hearings on Unit 2, January 13 and 14, 1970 A subsequent heanng at which the NEPA statement could have been reviewed was scheduled August 7,1970.
1 The AEC regulations that were in force during the above period i
until December 4,1970 when new regulations became applicable j
l required compliance with NEPA, Clearly the Environ = ental Quality.
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Council Interim Guidelines were final and effective during this period and they stipulated full and expeditious compliance with 'the q
act and still so stipulate,-
If construction of the plant is allowed to proceed, the opportunity to consider any feasible alternatives to plant design, location, operation and the other factors to be explored under the provisions of NEPA (102 (2) (C) iii) is drastically reduced with commitment to the existing plan for the facility becoming increasingly unalterable.
The failure to consider the NEPA provisions prior to issuance of a j
construction permit is tantamount to denial of the applicability of l
this legislation in the public interest, In view of the pending case j
en interpretation of ITEPA, Conference request as a cotion that the Commission rescind the construction permit and postpone action on i
the application.
2 Conference further appeals to the Commission to rescind the
, construction permit and postpone action on the aoplicatoon 1
until Pacific and the Board have complied with the pro-visions of the Water quality Improvement Act of 1970 (WQIA)'
2.1 Under the terms of WQIA, federal agencies, first, are directed to observe water quality standards pursuant to the Water Quality Act of 1965, or, second, when there are "no applicable water quality standards",
to fashion rules and regulations which insure compliance with the pur-
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1 poses of the Act.
(WQIA, App. J, Section 21 (b) (9) (A)
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dalifornia l
has not established water quality standards on thermal pollution tha have been approved by the Secretary of the Interior, as required by law.
The Board, therefore, has the responsibilities to determine water quality standards at Df.ablo 2 since construction has not started prior to April 3,1970.
(WQIA, Section 21 (b))
2.2 Also under EPA, evidence on thermal effects is admissibh especial-ly in the absence of state certification of thermal standards.
In any case, compliance with state water quality standards would be required in addition to, not as a substitute for, a Board finding that f
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the project i? not detrimental to water quality standards.
Under its NEPA responsibilities, the Board must explore plant sites, plant
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designs, construction proposals, etc., to determine how the plant may I
best nnet water quality standards.
Even if it were accepted that I
I agencies other than the Board are solely concerned with compliance i
with water quality standards, EPA nevertheless requires the Board to l
receive evidence of thermal pollution because such evidence is relevant to the environmental factors that must be considered before a construction percit is issuedo (Aug TR 22) (Conf erence 's Proposed Findings #45 (d), Conclusions #24) 2.3 Additional reason for Board review of compliance with water quality standards is the special competence of the Board in appraising s
design features adequate to mat the necessary standards.
Local water agencies cannot be expected to have expert knowledge in this nuclear plant design field, Public hearings on this subject are essential in the certification process if public health, cafety, and welfare is not to be endangered.
The Commission should rescind the 1
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' construction permit and postpone action-on Diablo U it 2 until this re-n view process has been undertaken.
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3 Conference beliaves that failure of the Board to conform to certain fundamental hos. ring procedures has deprived our 3
organization, other interveners, and the public in general l
the right and opportunity to fully present its case and j
has deprived the Bcard' of a complete record necessary for a
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wise and balanced decision in furtherance of public health i
and safety, and the env$ronment. Conference urges the Com-mission to revoke the initial decision and schedule further hearings on the project in fulfillment of the public right to adequate review of this major project.
3.1 Interveners were deprived of the right to introduce testimony l
presented before a Congressional Committee on the subject of radiation i
i l-standards, j
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In cross-examination Conference asked a Pacific witness whether he had reviewed Gofman-Tamplin testimony or other eridence presented at the Muskie hearing in November 1969 (Jen. TE 138).
Conference objects to the ruling of the Chairman that this question was irrelevant to Applicant's testimony.
Applicant's testimony directly and re-peatedly related to conformance with radiation standards, In his opening statement Intervenor McMillan also referred to i
the above-mentioned Congressional testimony (Jan, Et, 178-182),
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Chairman ruled that the testimony was 'hcarsay" on grounds that the l
authors of the documents were not present for cross examination.
The intervenor, however, (1) was presenting an open statement of evidence he proposed to develop and (2) Applicant and Staff themselves had I
regularly submitted for the record reports by individuals not present for cross examination.
Confe7 -nce asked its expert witncss in biology (RcCully) to I
summarize the main points in the aforementioned Congressional A
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testimony and Staff counsel obje".tt.l on grounds that Conference was endeavoring to introduce hearsay.
The Chairraan sustained the objection.
(Jan. TR 222 ),
In its Initial Decision (23, #39) the Board writes:
'The Con-1 l
ference and Mr. McMillan, also presented some general l
testimony on radiation effects.
They stated that there were current uncertainties in the magnitude of the risk from low levels of ionizing radiation and requested that the Board take these uncertainties into account in making an evaluation of risk versus benefit fo* the proposed evaluating of public safety for the proposed Ei.ablo 2 facility.
Fowever, no rapg.gjfj e e vi_dence was____ introduced... "
Emphasis added.
d It is indeed peculiar reasoning to discount the interveners' l
contentions on grounds of insufficient evidence when the Board itself deprived the interveners the opportunity to present such evidence.
These above cited rulings are an abuse of discretion.
It is an error not to permit notice of the Congressional document.
Hearsay i
evidence is admissible in administrative h: arings (Administrative Procedure Act 7 (c)).
Reference to a document in phrasing a question or presentation of testimony is admissible.
Even if the Board were not permitted to consider the adequacy of radiation standards, this possibility does not rule out the right of witnesses to raise questions or to comment on such an issue.
Hearings would become unwieldy and unnecessarily lengthy if authore of technical material referred to in the development of evidence must be present t or cross examination j
i before such material can be submitted for the record, Conference requests the same opportunity to present evidentiary material as the l
Applicant and other parties.
In his Concurring Opinion, Dr. Pigford states that he disagreed with the chairman's opinion on the hearsay question.
Dr. Pigford presents his reasons for this disagreement.
(Initiel Deci d.gm Pig *ord 3).
Conference defined its position on
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. this question in its Pronosed Conclusions of ' Law 7, '#18.
3.2 Scenic Shoreline was not granted adequate opportunity l
for crost examination, submission of rebuttal testimony,and-presentation of other essential evidence at'the J.anuary 1970 hearin68-l The shortness of a two day hearing (January 13 and 14, 1970) in relatiodpo' the magnitude of the issues, the ' failure' to complete the original agenda and ' allow cross examination on late-filed reports sub-mitted by Applicant, the failure of the Board to honor the request by Conference to present evidence on significant issues at a third t
hearing day, and the restriction of the agenda at the August 7,1970 hearing to only one of these issuen constitute significant errors of_
proc edure.
The two day hearings were utilized primarily by Applicant present-1 ing his data and responding to questions by members of the Board.- The.
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Conf erence representative was not in attendance the second day and would have(not had time on the agenda in any case to cross examine '
witnesses and present rebuttal. evidence in a sati sf actory manner because of the lateness of the hour In order to analyze Applicant's presente.cion and responfer -
cross examination as well as # prepare rebuttal testimony, all parties should be granted a hearing recess, Corf srence fully expected, and had every reason so to believe, that the hearings would be continued af ter the three weeks' recess announced i
by the Chairman at the end of the January session.
Counsel for the I
Applicant und the Chairman both entertained th.is probability.
1 (Jan TC 437)
Questions re,ised at the prehearing conference to be answered by the Staff and Applicant vero not answered in writing either prior. to the first two days of hearings (Jan t 3,14) nor were they incorporated as
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1 exhibits at those two hearings.
Also other material was to be presented by the Applicant after the two days in response to ques-tions by the Board.
(Conference Fronosed Ptndlngg 11, #55)
In an effort to establish a position of the Board on late-filed material, the Chairman said (Jan T!t 435-43o):
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'A number of questions were raised at the prehearing conference which had to be answered on the part of the staff, and a number of others on the part of the applicant.
It would have been extremely helpful it those answers had been submitted in tiriting prior to the hearing itself and then incorporated as an exhibit in the hearing.
"As a result of the procedure that did develop,,the Board tiembers are unable to conclude themselves that they will havt no additional questions with respect to the answers given and they certainly cannot conclude it with respect to answers not yet given.
So we will have to reserve the oppenness of the hearing, if you will, until the material is in and also until the Board Members have had a chance to review the transcript to see whether these answers are completely adequate to tne questions raised.
"So that's the position we are in.
And that's the position, almost irrespective of the other matherial still to come in, and that just adde to it..,"
The chairman further stated that " the Board recessed the hearing and ;roceeding in order to evaluate the record, and to receive additional information requested oy the Board from all perties,"
(Aug. L 5)
As a basis for cross examination in the process of the completion of an ac. equate record, all parties should receive the same opportunities as the Board in this instance to review and evaluate the record and enjoy the rights of cross examination.
As the day approached for the recess termination and no announcement for a third hearing date had been received, Conference phoned the 1
Chairman and was told that a request from Conference for additional
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hearings should be sent to his office immediately.
On ?ebrurary 3, a
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day before the three week recess was to have been terminated, the
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i Board received Conference's telegram petition requesting the reconvening of the hearing.
In spite of Conference's belief that its petition was
10 clear and unequivocal, a Board member has stated that the request was "brief and vaguely worded."
In good faith, none the less, the Board, in serving the public interest, had the responsibility to determine exactly what Conference was requesting.
In f act, one Board member did urge his colleaguee "to seek clarification from the Conference concerning1ts petition."
He said his reasons were twofold:
"(a) It appeared that the Conference might be requesting opportunity to crosdexamine on the technical information submitted by the Applicant during the recess.
"(b) It appeared that there might be some substantive basis to those portions of the Conference petition asking for reopening to present new information, such as in the area of geology and seismology."
(Initial Decision, P3 gford 5)
He noted that Staff counsel had admonished the Board that further hearings might well be required to allow all partie5 to cross examine l
Applicant on late-filed information.
It should be stressed that Conference wished to review other issues i.
besides geology and seiscology,
on Earch 9, 1970 Conference res-pcnied to Staff and Pacific ascertions that a third hearing would be l
"unf air" and " unduly burdenscue. "
On March 18, 1970 the chairman tertinated the hearing recess and closed the record.
On April 5, 1970 Conference requested a reopened hearing, Conference mentioned in its petition that it had not yct received the reports from Pacific on the l
impact of radittion upon abalone.
Conference referred to a fault i
structure, possibly active within the last 100 years, that had not been taken into account by the Applicant; noted that evacuation plans I
should be available at reopened hearings; requested review of Pacific's f
assetion that "no leakaps to the environment would result even if I
gross failure of the reactor coolant system were to occur." (Pacific's 0 Proposed Findings of Jact and Conclusion of Law", March 20, 1970, Section 23, p.12); proposed to cubmit new evidence on dispersal of radioactivity in the atmosphere over the San Luis Obispo-Santa naria
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yy air basin; requested the opportunity to present data on economics of retrofits and plant redesign to accommodate radiation standards under review by the federal Radiation Council affecting workers at the f acility, the general public, and the environment; and asked to cross examinc Applicant witnesses on the subject of on-site storage of low and high level radiation wastes.
The Board scheduled a third day of hearing on August 7,1970, for the limited purpose of presenting Staff and Geological Survey reports on findings relative to Conference data on offshore. and onshore l
faults within the vicinity of the proposed plant.
Conference participated in this hearing under-protect "because of questions of l
notification, the restriction of the agenda, and the whole means by which thj s meeting came to take place... " ( Aug. TE 14)
A senber of the Board Drecent_q,_qu),Stantially the same chronolomt an3 interpretation as listed above (Initial Decision Pigford, Concurring Opinion 4, #5) (Cf. Conference 's Froposed Conclusions #13, #14)
The failure of the Board to provide adequate hearings and to notify Couference of its hearing rights constitutes a major error in procedure and is sufficient grounds for revokinF the construction permit pending complots henringse The AdministrE ive Procedures Act (Sec. (7) (c) stateE:
"Every party shall have ths right to r eesent his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross examination as may be required for a full and true disclocure of the facts.
As a centerted hearing within the meaning of 10 Ct 3 2104, the short and incomplete proceedings fails P
to provide suffi,0ient information as the basis of an adequate record under the standards of " sufficiency of information' (10. CFR Appendix A III (g) (1))
Both Staff and Board have the dual responsibility of representing both the Applicant ami the public.
Conference has already
12 registered its belief that Staff has failed adequately to represent the latter interest affirmatively.
(Conference Proposed Jindings 11,
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The procedural rights of the public should receive active and affirmative protection at the hands of the Board (Scenic find 4
E2A Preservation Con [pf.gnqe. v. ?ederal Power Commission (1965) 354. v. 2d 608 (2d Cir. ), cert. dend. 384 U.S. 941, 86 s Ct. 1462, 16.L. Ed. 540) l (Baltimore and Ohio v. United States (1967) 386 U.S. 372, 87 s.C.
1100.18 L. Ed. 2d 159, Office of Comrmnication of United Church of Christ v. PC-, 359 e. 2d 994, and D.C. Federation of Civic Associations
- v. Airis 391 F. 2d 478 484 (CA CD 1968))
3.3 ' The Failure of the Board to provide adequate notice prior i
j to the August 7,1970 hearing constitutes grievous error.
I Conference 1
takes exception to the Board conclusion (Initial l
D2pjlfdgn, 25, #44) that adcquate notice was provided.
The record l
olearly demonstrates (Aug TR 14, 15.200) the contrary.
A member of the Licensing Dcard Panel Staff telephoned br, Cissler, principal representative of Conference, presumably to discuss a hearing date.
I Eissler's wife answered, notifying him her husband was out-of-town for at least a ucek.
Shc was then told the hearing was scheduled August 7.
On July 22 Nr Bissler phoned Er. Yore, and the Scard Chairman as well, requesting an extension of the hearing date to allow adequate time to analgzo staff and agency reports, develos testimony, assemble witnesses, and obtain legal counsel, rie ree_)nded Mr. Yore that the hearing was being called at the request of Conference to present its new l
evidence on seismic matters.
Staff and the Board, nonetheless, have 1
maintained erroneously (Aug E? 17) that the hearing was reopened for the purpose of incorporating in the record the agency reports and permithj)
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cross-examination on the basis of these reports.
The Board indicates that Conference's evidence substantiates Board's j
T-3 claic of sufficient notics, Unquestionably, however. all parties including the Applicant would have benefited from longer notice.
Adequate maps were unavailable.
A key witness, a UCLA professor who conducted much of the limited geological research in the aree, ehould have been present.
Considerably more evidence is essential in the record to support conclusions or seismological and other factors.
Evidence developed by Conference that is presently available and should be in the record could have been available at an adequately noticed hearing.
l Preparing for a hearing is no doubt an overous, time-concuming task even for the Applicant with large funds and a regule.r staff l
giving full attention to such matters.
It is all the Icore onerous for a citizen group with limited resources, l
Conference reaffirms its original findings of fact (eb5 (a) (b))
and conclusions of law (#12),
Th:* August 7 heering n s ir;roperly scheduled prior to insufficient notice thereby caus.nr great incon-venience to the principal party recuesting the hearing.and reducing the opportunity for necessary crepcratj an tc develer. n.r: adequate record.
The insufficient notification viole.tes 10 CA: 2.10h reauiring thirty (30) days notice "ir. the case of an application conNrring. f acili ty" I
and the Administration Proccdure s ac t,.5ec 3 (a) (.T x d.ch states; f
l "In fixing tho timeF and places for hearings, due regard sh&1l be had for the convenience and necessity of bhe parties or their representatives,"
Comments by Goard cember,Dr. Pigford, generally substantiate our I
conclusions on this procedural matter (IJ1(tM,lg.c11);m., Piford, 7, 86).
q 3,4 Lack of prompt action by the Roard in responding to hearing requests ha.e been " destructive of an orderly hearing procedure."
In his statement terminating thc January hearing (Order!
Terminating Recess of Hearing..., it. arch 16, 1970), the Board chairman denied Conference's february 3 r2 quest for a third hsaring day by concluding "that to grant the intervenor's request would be destructive
14 of en orderly hearing procedure."
On the contrary, the failure of the Boa-d promptly to attend to the hearing request was an error of procedure that had a serious adverse effect upon the rights of all I
parties to this matter, Dr. Pigford cbserves (Initial Decision,11, #7):
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... the Board has proceeded with anything but reasonable dispatch when it cannot respond to the Conference's ?ebruary 3 petition until q
Earoh 18 and to the Conference's April 5 petition until July 20, j
and when it takes four months to issue a decision af ter the August 7 l
hea*ing.
It might appear that the remarkably slow schedule of l
performance of this Board reflects long and serious consideration by the doard in deliberating unusually difficult and complicated issues.
This is simply not the caso... It will bc tempting to blame the protracted length of this proceeding-over thirteen months since the issue of the notice of the hearing-upon other sources.
This case is not that complicated, The overall delay can be attributed largely to the Board itself,"
Orderly hearing procedure en an ist,ue of such major importances requires considerably core attsntion to fundamental issues than the tits represented by a three day hearing and could take considerably less
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1 tice than thG dilatory actions of the Eoard to de.te t l
3.5 In 3ts April 5 hearing request Conference stated that Applicant's late-filed datt on radiation impact upon red abalone had not been I
received although it was dated Jr.nuary 22, 1970.
Subsequently Pacific forwarded a copy.
Conference was denied an opportunity to cross exac.ine applicant on this data at the August 7 hearing (Aug Til 18,19).
1 Conference continues to seek this opportunity of cross examination.
h The decision of the Board on seismic and geological conditiona l
on and offshore in the vicirity of the site as they affect plant design is seriously deficient.
The decision does not provide reasonable assurance of public health and safety with-in the moaning of 10 cmR 50.35.
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15 The Board grants that if a northeast-southwest fault does exists, as indicated by Conference testimony, "the predicted earthquake from the depicted length of this inferred fault would likely exceed in magnitude the on-site shaking from the design-basis earthquake described in the PSA f...If it were concluded that this Gult exists, further consideration of the possible connection to Eurray would be required to establish a new design-basis-earthquake.
If it is concluded that the probability of existence of this fault is too low to warrant further consideration then its possible connection to Murray is no importance."
The Doard then leaves this extraordinarily important seismic lesue hanging in abeyance.
The Board sidesteps the icsue.
A basic issue in contention, fundamental to the whold case either for or against the siting of the plant, is whether the alleged northeast-south-west fault does or does not exict.
The Board fails to draw necessary conclusions on this fundamental issue in such basic contention bet-ween the parties as to be a major subject on the agenda of a special hearing in August.
When there is such sharp contention and disagreement between parties on a significant issue, the Board is required to make detailed findings of fact on this issue, (10 CFa Appendix A IV (c))
1 TP'- the Board has failed to do.
Unless the significance of the seismic situation onshore and off shore is properly appraised, the design basis l
earthquake cannot be properly determined.
The Board's acceptance of an on-site acceleration figure without an understanding of important seismic conditions in the area is a cart-before~the-horse inversion of procedure that renders the concept of design-basis-earthquake meaningless.
Evidence on the record and neu evidence Conference wishes to present l
i at new hearings substantiate the significance of this issue and the need for further review of seismic problems (Aug Tit 52-55, 69-73).
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Serious uncertainties have been raised about the completeness f
of the record on the earthquake potential of the Diable region offshore and the unmapped area encompassed by the Port San Luis Quadrangle.
(Conference's Proposed 7indings 2-9, ll'-20)
I Additional necessary earthquake research in the Dablo region j
may indicate that the proposed reactor design cust withstand greater seisaic impact (shaking and ground displacement) than present design criteria can accommodate (Conference 's Proposed Findings 10-13, 23-25)
Conference has listed the uncomplicated measurements, mapping and j
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field studies necessary to determine the earthquake potential of the
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Diablo region, (Conference's Proposed Jindings 30-4?)
It is not j
unreasonable in terms of the magnitude of safety hazards to require i
that these studies be completed prior to a determination on the issuance of a ocnstruction permit.
The Board grants that should a northeast-southwest fault exist a predicted earthquake would probably exceed the 3
PSA2 design-basis carthquake.
The Board then states that the Applicant and Staff be21ste a northwest-southggn trending structure has been identified on the ocean floor in this area and that the earthquakes plotted are clusters with the ncrthugal trend. (Initial Dacision 20, #36)
The following is a summary of Cor.ference evidence tr.at these recent epicenters very likely define a northgpqpi-southynsi trending active fault zone capable of producing an earthquake hazardous to the plant as it is now designed.
(Hot in order of importance).
(1)
Several active faults in California show no correlation to the structure at the surface.
The White Wolf fault is an example, and is at the same latitude as the epicenters in question.
(2)
A study of seismicity in California indicates a significant northeast trending line of epicenters called the Ventura-Winnemuca line.
This line is close to if not coincident with the line of offshore epicenters.
It extends as far into the continent as Nevada, (3)
"A prominent northeasterly trend exists on the deep-sea floor in a band extending from northern California to northern Chile".
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(!:enard, " Minor Lineations in the Pacific Basin", GSA Bulletin,1959).
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(4)
Activity on the San Andreas fault took place at the same d
time as the recent flurry of earthquakes in the offshore region.
The activity on the San Andreas fault was in line with these opicenters and must be considered as possibly related.
(5)
Several northeast-trending structures close to the line of epicenters have been identified and it is difficult to understand why the Staff and the Applicant insist on ignorir.g them.
They include the Hodriguez seanount, the Arguello Canyon, the breaks in the escarpment which parallels the line of epicenters, and two ocear.ic Bults further west.
l (6)
Notable in maps is "the appearance of cenjugate northwest and northeast trends, especially for zones in central California".
( Eyall, Slemmons, and Gedney, " Seismicity, Tectonism, and Surface Saulting in the Western U.S. during Historic Time', Bull. Seismologi-cal Society of America, V. 56 oct.1966).
(7)
Among the epicenters described are cases of earthquakes which have moved progressively from northeast to southwest.
This is difficult to attribute to a northwest treni.
To deny the n' cove evidence is to fly in the # ace of scientific reasoning.
The Staff and Applicant would have done better to admit the northeast trend of the epicenters and their possible significance.
To do so of course means that the plant r ay not be so feasible as it first seemed.
It may or : t may not be feasible.
No one can tell until further study is nade to delinnate what is c: curring in the i
ocean just off the proposed site.
Evidence indica:es a tie-in to the I;urray fracture as well as the San Andreas fault.
I These seismic and geological issues are of su:h major importance as m justify further studies recommended by Ccnferer.ce and hearings for introduction of available new evidence prior to any determination on issuance of a construction permit.
5 The Board's decision is deficient in failing to require satisfactory resolution of problems associated witi. the calculated design-basis accident.
The Board (Initial D.9.ciE192!1 15-17, #3,#4) was uncertain about the applicability of 10 0/R Part 100 to children.
The Board observed that Sboth Applicant and Staff have calculated the design-basis accident
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J
i 10 dose on the assumption that an individual. located at any point on
' the site boundary and an individual located at any point on the outer I
. boundary of the low population zone are identified as adults."
The Board continued: "Although a witness forthe Applicant stated that 10 C?2 Part 100 applies specifically to adults, the Board does not find this interpretation of 10 CA1 Part 100 as it applies to individuals."
Various conflicting figures on the estimated dose recalculated for-a child at the low-population boundary and at the site boundary are men-tiened.
The Staff, according to the Board, "has concluded that the postulated fuel handling accident will result in off-site. doses exceeding the 10 C78 Part 100 guidelines and that redesign is necessary."
Prior to issuance of a construction permit thE question should be resolved on the applicability of 10 CJB Part 100 to children and a policy established on a consistent-and reasonable tethod of calculating j
1 the off site accident dose.
The public at hearings for this and other agenia purposes should l
have the opportunity to participate in development of i
this policy.
The discussion of this issue of applicability of' 10 CPR Part 100 was incomplete and inconclusive on the record (Jan i
Et 31 3-330) becauce of tha inadequacy of data, a cor.iition which unfortunately still remains.
In the transcript (Ja..ri 330) Bor"d member Dr. Pigford comnents:"Now I don't want to leave right nod this question (on applicability of 10 CFit Part 100 guidelines) in such a confused state... Maybe we can think of something and come back to it later..
That's why I suggest we go ahead,'
The discussion of this matter remains in this " confused state."
At additional hearings prior to issuance of the construction permit, Conference requects
[
1 the opportunity to present testimony and cross examine witnesses on this vital insae.
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19 6
The F.pplication and the review of this application are deficient j
in their failure to present and consider an evacuation plan for the Diablo area and surrounding regions.
Consideration of evacuation plans in case of accidental release of radioactivity are necessary as a back-up for any f ailure of measures in conformance with the calculated design-basis-accident.
(Jan Ti 326)
In its failure to require consideration of an evacuation plan as requested by Conference (Jan TR 234,235,232,233)(Aug Tu 19)(Conference's Proposed Findings, 45 (g)(1)) (Conference's Proposed Conclusions 16),
j the Board cited the following as justification for its decision (Initial Decision 22, #37):
"The regulation 10 CPR 50.34 specifically requires an emergency plan in conjunction with an operating license app 1tation, but no such requi;cment appears for construction pertit application. "
It is correct that 50.34 (b): 6)(v) does specify that the final safety analysis report shall include " Plans for coping with emergencies, "
Evidentally this is the only possible reference to evacuation plans in this section, This reference, hoWever, l
doe 3 not preclude consideration of matters relating to evacuation policy at the construction permit stage.
Scction 50.3h requires concider-ation in a final safety analytis report of many factors that also are reviewed in the PSA i.
Sectio
- 50e 35 (a)(h) on the "1ssuance of i
l provisional construction permits" rsads that such a permit is granted l
only when,among other factors,
,,,there is reasonable assurance...
(ii) taking into consideration the site criteria contained in Part 100, l
the proposed facility mmlit_ constructed and operated at the proposed l
loca-lon without undue risk to the health and safety of the public."
l (Emphasis added) j "deasonable assurance" cannot be provided unless some foundation is presented in the form of a plea (a preliminary or tentative plan, not necessarily the final plan possibly referred to in 10 C/R 50,34 (b)(6)
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- 6
(
g 20 (v) and cited above by the Board') indicating the feasibility of 3
(
evacuating the adjacent populace in the event of an accidental release of radioactivity at the site.
Part 100 refers to the ' exclusion area", " low population zone" and " population center" zone.
By definition (10 C t 100.3) the establishment of these zones depends on capability of removing the l
populace in case of accident.
Such accidents have been assumed to result (10 C7: 100,11 (a) (note 1) " in substantial meltdown of the core with subsequent release of appreciable quantities of f[asion products,"
The suitability of the site would depend then on the capablility of establishing an " exclusion area" where " appropriate and effective arrangements are made to control traffic on the highway, railroad, or waterway, in case of emergency, to protect the public health and safety... desidents shall be subject to ready removal in case of I
necessity."(10 Caa 100 3 (a))
A " low population zone" is defined as an area "which contains residents, the total number and density of which are such that there is reasonable probability that appropriate protective measures could s
be taken in their ochalf in the event of a serious accident,"
(10
)
C7R 100.3 (b))
The section cited specifically indicates that such a zone cannot be defined t.erely by a density figure:
"These j
i l
guides do not specify a permissible population density or total I
J population within this zone because the situation may vary from case i
to case."
The criteria are defined in operational terms:
"whether l
1 a specific number of people can, for example, be evacuated from a I
specific area, or instructed to take shelter, on a timely basis will j
l depend on many factors such as location, number and size of highways, j
i scope and extent of advanced planninc and actual distribution of residents within the area,"
j i
a
.i n 21 These latter elements are termed "use characteristics" in the section on " Site Evaluation " actors".
The Commission is inst"ucted to take l
a number of characteristics into consideration "in: determining the acceptability of a site for a power or testing reactor", among them being"... Population density and use characteristics of the site environs, including the exclusion area, low population zone, and l
i population center distance" (10 C?R 100,11 (b)).
These f actors correlated I
in the form of an evacuation plan or analyses or other documention suitable to meet the standards of " reasonable' assurance" have not been provided in fulfillment of the reggirements for issuance of a provisional construction permit.
Conference has repeatedly requested evacuation data at the
?
l construction permit stage.
The public has an immediate and practical concern in assarances, though necessary planning, l
CONCLUSION:
In its appeal to the Commission, Conference seeks remedy of fundamental deficiencies in the Diablo review process conducted by the Board.
This appeal is in the form of a motion.
Conference requests that:
(1) The issuance of the provisional construction permit be rescinded on grounds that the Board failed ' to grant interveners adequate hearings necessary to develop a sufficient record in the.
public interest.
(2)
The mapping measurement and other analyses of geolescel and seismic factors in the Diablo region be be-undertaken. Completion i
of environmental studies be required.
(3)
New hearings be scheduled to present these and other j
available new data on seismic and geological matters.
i (4)
These new hearings include consideration of other agenda items listed by Conference in-this appeal and in other documents.
4
- k, l
22 l
l (5)
Such hearinre be scheduled with adequate notice.
1 (6)
The provisional construction permit be withheld pending outcome of the court decision en the Ca') vert Cliffs case (#1 above) and compliance witr. the Nat) onal F. environmental Policy Act and the dater Quality : provement Act.
' respectfully submitted,
/))fs h i
c
?rederick Eissler s
President December 30, 1970 I
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