ML20141H099

Testimony of Nj Palladino to Subcommittee on Energy Conservation & Power,Committee on Energy & Commerce,Us House of Representatives on Facility Licensing Process

ML20141H099
Person / Time
Site:	Diablo Canyon, 05000000
Issue date:	07/10/1985
From:	Palladino N NRC COMMISSION (OCM)
To:
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ML20140C992	List: IA-85-563, Forwards Listed Info Re Consideration of Earthquakes in Emergency Planning ML20140C994 ML20140G689 ML20141G898 ML20141G903 ML20141G911 ML20141G914 ML20141G919 ML20141G924 ML20141G927 ML20141G932 ML20141G937 ML20141G942 ML20141G946 ML20141G956 ML20141G961 ML20141G968 ML20141G974 ML20141G978 ML20141H012 ML20141H018 ML20141H023 ML20141H029 ML20141H066 ML20141H071 ML20141H083 ML20141H087 ML20141H099 ML20141H108 ML20141H125 ML20141H137 ML20141H151 ML20141H159 ML20141H168 ML20141H176 ML20141H182
References
FOIA-85-653 NUDOCS 8601130415
Download: ML20141H099 (34)

Text

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PREPARED TESTIMONY SUEMITTED BY NUNZIO J. PALLADINO, CHAIRMAN i

U.S. NUCLEAR REGilLATORY COMMISSION .

TO THE SUBCOMMITTEE ON ENERGY CONSERVATION AND POWER COMMITTEE ON ENERGY AND COMMERCE UNITED STATES HOUSE OF REPRESENTATIVES ON DIABLO CANYON LICENSING PROCESS SUBMITTED: JULY 10, 1985

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4 MR. CHAIRMAN, MEMBERS OF THE SU8 COMMITTEE, MY FELLOW COMMISSIONERS AND I ARE HERE TODAY TO ADDRESS THE COMMISSION'S HANDLING OF THE ISSUE OF THE POSSIBLE COMPLICATING EFFECTS OF EASTHQUAXES ON EMERGENCY PLANNING FOR DIABLO CANYON. IN RESPONSE TO YOUR LETTER OF JUNE 10, 1985, THE COMMISSION'S PREPARED TEST! MONY INCLUDES A DETAILED CHRONOLOGY OF THE NRC'S HANDLING OF THIS ISSUE BOTH AT DIABLO CAdYON AND GENERICALLY AND THE COMMISSION MAJORITY'S l RESPONSE TO THE SEVEN SFECIFIC ISSUES RAISED BY COMMISSIONER i

ASSELSTINE. THE COMMISSION'S RESPONSE TO YOUR ADDITIONAL QUESTIONS WAS FORWARDED TO *illE SU8 COMMITTEE UNDER A LETTER DATED JUNE 27, 1985.

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BEFORE TURNING TO TH'E SUBSTANTIVE ISSUES, 1 MUST FIRST ADDRESS THE AS YOU KNOW,

< PROCEDURAL POSTURE OF THE PENDING COURT PROCEEDING.

A PANEL OF THE U.S. COURT OF APPEALS'FOR THE DISTRICT OF COLUM8IA

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CIRCUIT AFFIRMED THE COMMIS$10N'S DECISIONI HOWEVER, THE FULL COURT HAS DETERMINED TO REHEAR THE ISSUE OF THE EFFECT OF THE COURT HAS

! EARTHQUAKES ON EMERGENCY PLANNING AT DIABLO CANYON.

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NOT YET INDICATED THE EXACT SCOPE OR SCHEDULE FOR THAT PEHEARING.

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. THE COMMISSION CONTINUES TO ADHERE TO THE RESPCNSES TO YOUR QUESTIONS WHICH WE PROVIDED TO YOU IN A LETTER DATED FEBRUARY 25, 1985. THE COURT'S DECISION TO REHEAR THIS !$$UE DOES NOT AFFECT I

THE SUBSTANTIVE VALIDITY OF THOSE RESPONSES. THE COURT'S DECISION THE' SIMPLY REMOVES ITS AFFIRMANCE OF THE COMMISSION'S ACTIONS.

I COURT'S DECISION CANNOT BE TAKEN AS IMPLYING ANYTHING MORE, I

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4 ESPECIALLY IN THE A8SENCE OF ANY INDICATION AS TO WHAT SPECIFIC ISSUES THE COURT INTENDS TO REHEAR.

THE COMMISSION WANTS TO AVOID, INSOFAR AS IS POSSIBLE, ANY APPEARANCE OR SUGGESTION THAT THESE HEARINGS ARE A MEANS TO INFLUENCE THE COURT. ACCORDINGLY, THE COMMISSION'S TESTIMONY BEFORE THIS SU8 COMMITTEE WILL, IN T,HE SAME FASHION AS ITS 8RIEF AND ARGUMENT 8EFORE THE COURT, FOCUS ON THE COMMISSION'S OWN DECISION AND ITS STATED RATIONALE.

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I THINK THAT IT WOULD BE HELPFUL AT THIS POINT IF I 8RIEFLY 1 SUMMARIZE THE COMMISSION'S DECISION. THE ISSUE 8EFORE THE

COMMISSION WAS WHETH,ER PARTICULAR CIRCUMSTANCES IN THE DIA8LO

CANYON PROCEEDING WARRANTED A DEPARTURE FROM THE COMMISSION'S IN SAN ON0FRE, PREVIOUS DECISION IN THE SAN ONOFRE PPOCEEDING.

THE COMMISSION HAD DETERMINED THAT THE NRC'S REGULATIONS DID NOT REQUIRE CONSIDERATION OF THE COMPLICATING EFFECTS OF EARTHQUAKES f

ON EMERGENCY PLANNING. AFTERREVIEWINGTHERECORDINd'IABLO f ,

CANYON, THE COMMISSION FOUND NOTHING WARRANTING A DIFFERENT CONCLUSION.

. THE HEART OF THE COMMISS10N'S DECIS10N WAS THE FINDING THAT THE PROBABILITY OF A CONTEMPORANEOUS OCCURRENCE OF AN EARTHQUAKE AND A 3

RADIOLOGIC RELEASE FROM THE PLANT WOULD BE VERY LOW -- S0 LOW THAT

! THERE WAS NO NEED TO ADJUDICATE THE EFFECTS OF EARTHQUAKES ON

r EMERGENCY PLANNING. THE LOW PROBABILITY FINDING WAS BASED CN THREE FACTORS:

1. THE LOW PROBASILITY THAT AN EARTHQUAKE UP TO THE SAFE SHUTDOWN EARTHQUAKE WOULD CAUSE A RADIOLOGIC RELEASE.

THIS PROBABILITY WAS FOUND TO BE LOW BECAUSE OF THE EXTENSIVE REVIEW OF THE PLANT'S SEISMIC DESIGN.

2.. THE LOW PROBABILITY OF AN EARTHQUAKE ABOVE THE SAFE SHUTDOWN EARTHQUAKE. THIS PROBABILITY WAS FOUND TO BE LOW BECAUSE OF THE INTRINSIC NATURE OF THE SEISMIC .

DESIGN PROCESS -- THE SAFE SHUTDOWN EARTHQUAKE IS BY DEFINITION THE LARGEST EARTHQUAKE CONSIDERED POSSIB THE SITE. .

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2. THE LOW PROBABILITY OF THE SIMULTANE0US OCCURRENCE EARTHQUAKE CAPABLE OF COMPLICATING EMERGENCY RESPON AND A RADIOLOGIC RELEASE CAUSED BY AN EVENT OTHE EARTHQUAKE. THIS PR08 ABILITY WAS FOUND TO BE LOW BECAUSE IT IS THE PRODUCT OF TWO SMALL RESPONSIBI ONE, THE LOW PROBABILITY OF ANY ACCIDENT WHICH WOULD RESULT IN A RADIOLOGIC RELEASE AND, TWO, THE LOW PROBABILITY OF OCCURRENCE OF AN EARTHQUAKE CAPABL THE FIRST PROBABILITY COMPLICATING EMERGENCY PLANNING.

IS LOW BECAUSE OF THE INTRINSIC NATURE OF THE REG PROCESS -- PLANTS ARE DESIGNED TO ASSURE THE LOW THE PROBASILITY OF AN ACCIDENT RESULTING IN A RELEASE.

• I 4-SECOND PROBABILITY WAS FOUND TO BE LOW BECAUSE THE RECORD SHOWED THE SITE TO BE ONE OF LOW TO MODERATE SE!SMICITY.

-AS A SUBSIDIARY MATTER, THE COMMISSION ALSO CONSIDERED THE RECORD ON FLEXIBILITY IN THE DIABLO CANYON EMERGENCY PLAN. FROM THAT

. RECORD, THE COMMISSION INFERRED THAT THE EMERGENCY PLAN INCLUDED SOME FLEXIBILITY TO HANDLE DISRUPTIONS 8Y EARTHQUAKES. WITH THIS ,

IN MIND, I WILL NOW TURN TO YOUR SPECIFIC REQUESff.

I NOTE FIRST THAT THE COMMISSION'S LETTER TO YOU OF FEBRUARY 25,  !

3985 ADDRESSED IN DETAIL A NUMBER OF CONCERNS, ESPECIALLY THOSE i RAISED BY COMMISSIONER ASSELSTINE.

SOME HAVE ARGUED THAT THE COMMIS$!ON SHOULD HAVE STRICTLY FOLLOWED '

ITS STAFF'S ADVICE ON THIS MATTER. CERTAINLY, SUCH ADVICE .

WARRANTED CAREFUL CONSIDERATION, AND RECE!YED IT. HOWEVER, IMPORTANT POLICY DECISIONS MUST BE MADE BY THE FIVE COMMIS$10NERS, AND- NOT BY STAFF. THE COMMIS$10N ITSELF PROPERLY EXERCISED ITS RESPONSIBILITY To MAKE IMPORTANT POLICY DECISIONS IN THIS CASE.

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THAT THE COMMISSION'S OPINION !$ SUPPORTED BY THE RECORD CAN BE i CHECKED $1MPLY BY COMPARING THE COMMISSION'S DECISION WITH THE RECORD. WE HAVE PROVIDED YOU WITH SOME DETAILED RECORD CITATIONS IN THE JUNE 27, 1985 WRITTEN ANSWERS TO YOUR SPECIFIC QUESTIONS. .

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CCMMISSIONER ASSELSTINE CHALLENGED TH'E COMMISSION'S RELIANCE ON THE LOW PROBA8ILITY OF THE CONTEMPORANEOUS OCCURRENCE OF AN

. EARTHQUAKE AND A RADIOLOGIC RELEASE. HIS THREE-PRONGED CRITICISM IS WIDE OF THE MARK.

FIRST, NE CONTENDS THAT THE COMMISSION'S RELIANCE ON THE EXTENSIVE ANALYSIS OF SEISMIC DESIGN OF THE PLANT IGNORES THE COMMISSION'S EMERGENCY PLANNING ASSUMPTION THAT %N ACCIDENT MAY STILL HAPPEN EVEN IF A PLANT SATISFIES ALL OF THE COMMISSION'S REGULATIONS.

ONE CAN ALWAYS CONCEIVE OF AN ACCIDENT HAVING A VERY LOW PROBA8ILITY BUT FOR WHICH THE ENERGENCY PLANNING REGULATIONS COULD NOT ASSURE AN EMERGENCY RESPONSE THAT WOULD PROTECT THE POPULACE FROM RADI0 ACTIVE RELEASES. MORE0VER, THE REVIEW 0F THE SE!'SM'!C DESIGN AT DIABLO CANYON WENT FAR BEYOND ANY SUCH REVI,EW AT ANY OTHER NUCLEAR POWEP PLANT. THE COMMISSION'S HOLDING ON' EARTHQUAKES AND EMERGENCY PLANNING FOCUSED ON A LIMITED SET OF ,

VERY LOW PROBABILITY CIRCUMSTANCES.

THUS, THE COMMISSION'S RELIANCE ON THE SPECIAL REVIEW OF THE SEISMIC DESIGN FOR DIABLO CANYON TO DECIDE THAT THERE IS NO NEED TO CONSIDER THE l COMPLICATING EFFECTS OF EARTHQUAKES ON EMERGENCY PLANNING !$ NOT INCONSISTENT WITH THE GENERAL PRINCIPLES OF EMERGENCY PLANNING.

TOTHECONTRARY,THECOMMISSIONSIMPLYDETERMINEDTHAhONE

! PARTICULAR ACCIDENT SEQUENCE, WHICH HAS BEEN THE SUBJECT OF i

UNPRECEDENTED REVIEW AND PRECAUTIONS, NEED NOT BE SPECIFICALLY CONSIDERED FOR ITS EFFECTS ON EMERGENCY PLANNING.

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SECONDLY, COMMISSIONER ASSELSTINE CONFUSES EARTHQUAKE FREQUENCY WITH EARTHQUAKE MAGNITUDE OR INTENSITY. THERE CAN BE NO DOUBT THAT THE MAGNITUDES OR INTENSITY OF POSSIBLE EARTHQifAKES AT DIABLO

. CANYON CAN BE HIGH AND REQUIRE A CORRESPONDINGLY STRONG SEISMIC DESIGN BASIS. BUT BECAUSE STRONG EARTHQUAKES ARE FOCS!BLE AT A SITE DOES NOT MEAN THAT STRONG EARTHQUAKES WILL OCCUA FREQUENTLY AT A SITE. THE RECORD SHOWS THAT RELATIVELY MILD EARTHQUAKES WHICH PRODUCE A GROUND ACCELERATION OF 0.2G OCCUR AT THE DIABLO CANYON SITE AI BQ1I AT AN AVERAGE FREQUENCY OF ONCE EVERY 275 YEARS, WHILE STRONGER EARTHQUAKES OF MAGNITUDE 6.5, STILL TEN TIMES LOWER THAN THE MAGNITUDE OF THE SAFE SHUTDOWN EARTHQUAKE, CCCUR WITH AN AVERAGE FREQUENCY OF ABOUT 1,000 YEARS. THE RECORD ALSO SHOWS THAT THERE HAVE NOT BEEN RECURRENT EARTHF. .45 AB0VE MAGNITUDE 6.5 ON THE HOSGRI FAULT IN THE PAST 17,000 YEARS. THUS, IT IS CONSISTENT To DESIGN A PLANT TO. WITHSTAND THE IMPROBABLE BUT NOT }MPOSSIktE SAFE SHUTDOWN EARTHQUAKE, AND STILL TO DETERMINE THAT THE FREQUENCY OF OCCURRENCE OF SUCH POWERFUL EARTHQUAKES IS T00 LOW TO WARRANT THE SPECIFIC CONSIDERATION OF THE!R EFFECTS ON EMERGENCY PLANNING.

FINALLY, COMMISSIONER ASSELSTINE CONTENDS THAT THE COMMISSION MUST l CONSIDER EQUALLY THE COMPLICATING EFFECTS OF ALL NATURAL PHENOMENA ON EMERGENCY PLANNING. THE COMMIS$10N DID NOT CONFRONT THE ISSUE I 0F WHETHER THE COMPLICATION OF EMERGENCY PLANNING BY INFREQUENTLY OCCURRING NATURAL PHENOMENON OTHER THAN EARTHQUAKES IS MATERIAL TO l'

A LICENSE. THAT ISSUE IS CURRENTLY BEING CONSIDERED IN THE i

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d ONGOING RULEMAKING. THE FACT THAT THE COMMISSION LIMITED ITSELF TO THE ISSUE OF EARTHQUAKES IN DIAsLO CANYON WAS SIMPLY A CONSEQUENCE OF THE ADJUDICATORY PROCESS, A PROCESS WHICH.!S LIMITED TO THE ISSUES RAISED BY THE PARTIES. IN DIABLO CANYON THE ,

ISSUE RAISED BY THE PARTIES DEALT WITH THE EFFECTS OF EARTHQUAKES ON EMERGENCY PLANNING. THE RESULT IN DIABLO CANYON IS NOT INCONSISTENT WITH OTHER COMMISSION DECISIONS ON WHETHER TO CONSIDER THE COMPLICATING EFFECTS OF OTHER LOW-PROBABILITY PHENOMENA BECAUSE THERE HAVE BEEN N0 OCCASIONS FOR SUCH OTHER COMMISSION DECISIONS. PARTIES TO OTHER ADJUDICATORY PROCEEDINGS HAVE NOT RA;$ED THE ISSUE OF THE COMPLICATING EFFECTS OF OTHER NATURAL PHENOMENA ON EMERGENCY PLANNING.

THE FOREGOING COMMENTS APPLY AS WELL TO EMERGENCIES WHICH DO NOT RESULT IN RADIOLOGIC RELEASES.

COMMISSIONER ASSELSTINE ALSO AGAIN RAISES THE PURELY PROCEDURAL ISSUE OF THE IMPLIED COMMISSION FINDING 0F FLEXIBILITY OF THE EMERGENCY PLAN TO ACCOMMODATE SE!SMIC EVENTS. AS WE HAVE i

EXPLAINED BEFORE, THIS INFERENCE FLOWED DIRECTLY FROM THE RECORD.

MORE0VER, IT WAS ONLY CONFIRMATORY OF THE COMMIS$10N'S OVERALL UNDER DECISION AND WAS NOT AN ESSENTIAL ELEMENT IN THAT DECISION.

f THESE CIRCUMSTANCES, THE COMMISSION BELIEVES THAT THIS INFERENCE l

NEED NOT HAVE BEEN SUBJECTED TO A HEARING.

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e 8-FINALLY, COMMISSIONER ASSELSTINE ONCE AGAIN CLAIMS THAT THE COMMISSION'S DECISION WAS MOTIVATED TO AVO!D DELAY. ONCE AGAIN THE COMMISSION UNEQUIVOCALLY STATES THAT THIS ALLEGATION IS FALSE.

NOR WAS THE DECISION TO CONDUCT A GENERIC RULEMAKING MADE 8Y DEFAULT. THAT WAS THE PATH WHICH THE COMMISSION HAD TENTATIVELY SET CUT UPON THREE YEARS 8EFORE THE DIABLO CANYON DECISION, AND IT WAS THE PATH WHICH THE COMMISSION AGAIN DETERMINED WAS APPROPRIATE. AND WE WANT TO EMPHASIZE THAT THE OUTCOME OF THAT RULEMAKING WILL 8E 8ASED ON THE RECORD OF THAT PROCEEDING AND A FRESH LO K BY THE COMMISSION AT THIS ISSUE.

I WILL NOW TURN TO YOUR ADDITIONAL QUESTIONS WHICH WE ANSWERED IN OUR LETTER TO YOU OF JUNE 27, 1985.

I WOULD LIKE TO ADDRESS ONLY ONE OF THOSE QUESTIONS HERE:

THAT IS -

M::CT!!ER THE COMMISSION 8ELIEVES THAT A POTENTIAL LICENSING DELAY THAT COULD RESULT FROM THE PUBLIC HEARING PROCESS IS A RELEVANT CONSIDERATION IN THE COMMISSION'S DELIBERATIONS OF WHETHER A CONTESTED SAFETY ISSUE IS MATERIAL TO A LICENSING DECISION? THE .

ANSWER IS UNEQUIVOCALLY NO. THE MATERIALITY OF A SAFETY ISSUE IS WHERE, AS JUDGED EXCLUSIVELY ON THE NATURE OF THAT SAFETY ISSUE.

HERE, THE RECORD SHOWS THAT THE ISSUE WAS NOT REQUIRED TO BE ADDRESSED 8Y THE REGULATIONS AND WAS NOT SIGNIFICANT FROM A SAFETY STANDPOINT, THE COMMIS$10N ACTED REASONABLY IN DETERMINING THAT THE ISSUE SHOULD NOT BE CONSIDERED MATERIAL TO THE ISSUANCE OF A LICENSE.

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. g-THIS CONCLUDES THE COMMISSION'S PREPARED TESTIMONY. THE DETAILED CHRONOLOGY THAT YOU REQUESTED IS ATTACHED.

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CHRONOLOGY ATTACHMENT TO NRC TESTIMONY ON DIABLO CANYON LICENSING PROCESS The Licensing Board for the San Onofre proceeding, in its Pre %erina Conference Order of May 6,1981, solicited the views of the parties on the issue of the proper consideration to be given to earthquakes in emergency planning. Following consideration of the coments of the parties and after initially determining that the 1*, sue warranted consideration, the Licensing Board on September 14, 1981, referred to the Appeal Board "the issue of possible effects on emergency plans of an earthquake of a magnitude greater than the Safe Shutdown Earthquake at the facility."

Because this issue raised a significant question on the interpretation of the Comission's emergency planning requirements, the Comission took up the issue. After studying the matter, the Comission determined in December 1981 that its emergency planning regulations did not require consideration ,

of the complicating effects on emergency plans of earthquakes which cause or occur during an accidental radiological release. However, the Comission decided to consider on a generic, as opposed to case-by-case, casis wnetner to' amend the emergency planning requirements to address the issue and directed the Licensing Board for the San Onofre proceeding not to pursue the issue.

On December 23, 1981, the Licensing Board for'Diablo Canyon relied on the Comission's San Onofre decision to disallow Governor Brown's contention that the " complications arising from attempting emergency response during an earthquake situation" should be addressed. A request to the Comission by Governor Brown's counsel to take direct review of the Board's ruling was denied by the Comission (as an impermissible interlocutory appeal) on March 5, 1982.

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• 2 At about the same time, the Comission directed the staff to follow up on the issues raised in the San Onofre decision by addressing, in consultation with FEMA, the question whether emergency planning activities of licensees should include consideration of the possible effects of earthquakes and, if so, what criteria should be applied in evaluating the adequacy of such plans. The staff's views on the appropriateness of rulemaking were also requested. In June 1982 the staff responded to the Comission's request stating that consideration of the effects of earthquakes on emergency planning "may be appropriate" in areas of relatively high seismic hazard but that no rulemaking was necessary because the current review practices were adequate.

In May 1983 an Appeal Board review of the Diablo Canyon Licent ing Board's decision on fuel loading and low-power testing found that the Licensing Board did not err in failing to consider the impacts of earthquakes on emergency planning. A petition for review of the Appeal Board decision, which was filed by Joint Intervenors in June 1983, was denied by the Comission in December 1983.

4 In response to the Chairman's request for a further technical discussion, the staff provided additional views in January 1984. The staff stated its continuing belief that the Comission's regulations do not require amendment. The views of the parties in the Diablo Canyon proceeding on a series of questions related to the issue were requested by the Comission in its 4ril 1984 Memorandum and Order. The responses were considered by the Comission in preparing its August 1984 decision. In that decision the Comission reaffimed the interpretation of the regulations in San Onofre and specifically addressed the rulemaking issue left open by the 1981 San Onofre decision, determining that rulemaking should ba initiated.

A proposed rule was published for public coment in December 1984.

Coments have been received, and the NRC staff is currently developing a final rule based on the record of that proceeding.

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July 9, 1985 r t

t To: Edward J. Markey, Chairman l PROM: Subconmittee Staff l l  :

SUBJECT:

July 10, 1985 Subcominittee Hearing on the Nuclear Regu.latory Commission's Diablo' Canyon Licensing Process I. ISSUE l

The purpcse of the hearing is to examine potential abuses in l the Nuclear Regulatory Commision's handling of the Diablo Canyon licensing process. Chairman Edward J. Markey, informed i i

NRC Chairman Nunzio J. Palladi'.o in March 1985 that the  !

Subc'ommitterr would hold an oversight hearing af ter requests I~3, for an investigation were made by three members of the California Congressional delegation: Rep. Henry A. Waxman, ,

Rep. Leon E. Panetta and Rep. George Miller.

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II. SACEGBOUND Subscquent to the Nuc1 car Regulatory Con nissj on's (NRC)

August 10, 1984 deM eion to issue a full power operating license for Diablo Canyon Unit 1, Congress cought and obtained transcripts of internal agency documents'related to the decision including l

tranneripts of four closed Comnission meetings (Attachments A and B). Chairman Edward J. Markey- in his capacity then as Chairman of the Interior cer.mittee's Oversight :.nd Investigations subcommittee, and then Subcommittee Chairman, Richard L. Ottinger, octh formally requested the Coinmission'to publicly release these documents. Although the Commission refused to make the documents

, public, they subsequently were relcared by a California television station that had obtained them.

In letters to Congress last fall, NRC Comnissioner James K.  :

Asselstine' accused his four colleagues of illegally refusing to.

hold a reqaired public hearing and of basing their dacision on -

. 'off-the-record information. He also charged that the Commission's decision not to hold the public hearing was based solely on the economic interest in avoiding a delay in the Diablo Canyon's operation. As emphasized by a recent court case, Section 189(a).

of the Atomic Energy Act requires that public hearings be held on issues material to licensing prior to plant operation (Union of

- _Cencerned Scientists v. Nuclear Regulatory Commission, 735 F.2d -i 1437, D.C.Cir., 1984). The Administrative Procedure Act and NRC t.

regulations require that adjudicatory' decisions be based on information which is in the on-the-record proceeding.

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The Commission has taken issue with each of.seven charg l

2 leveled by Commissioner Asselstine (Attachment C). Other relevant documents include a rebuttal by Commissioner Asselstine (Attachment D), and the Commission's responses to subcommittec questions (Attachment E).

The particular issue in the proceeding involved whether an earthquake would render ineffective an otherwise workable emergency preparedness plan. An approved and workable emergency preparedness plan is a precondition for an NRC operating license (10 CFR 50.47). At Diablo Canyon, intervenors were prohibited from litigating whether evacuation and other emergency plans would adequately protect public health and safety in the event of an earthquake. Emergency plans also include provisions to assure emergency response personnel and equipment can get to the reactor site. Specifically, there are three scenarios of interest: (1) an earthquake greater than the Safe Shutdown Earthquake (SSE) that the plant is designed to withstand that could cause both an accident and disruption of emergency planning; (2) an earthquake l less than the SSE that disrupts emergency planning and occurs by coincidence at about the same time as an accident at the plant; and (3) an earthquake less than the SSE that disrupts emergency planning and causes an accident even though the plant is supposed to be designed to cope with such an event.

In licensing San Onofre Units 2 and 3 in 1981, the Commission decided by a 3 to 2 vote that its regulations did not require consideration of the possible complicating effects of earthquakes on emergency planning thereby overruling its own Atomic Safety and Licensing Board which had raised the issue sua sppate. .In doing so, the Commission promised to examine the issue generically.

'However, according to the Commission's response to Subcommittee questions, it failed to conduct a generic review in tne  !

intervening two years and eight months before licensing Diablo Canyon because it was "... diverted from this issue by the press of other important Commission business. . . . "

The Commission's 1984 Diablo Canyon decision similarly excluded consideration of the earthquake / emergency planning issue and again promised to look at the matter generically. The Commission has justified its treatment of this matter on the basis of: (1) its belief that the Diablo Canyon region is of low to moderate seismicity; (2) its belief in the adequacy of the seismic design of the plant; (3) its belief that the earthquake \ emergency planning issue is generic in nature; and (4) its belief that its position is validated by the fact that a reviewing court did not stay operation of the plant. The Commission's testimony retracts the fcurth rationale in light of the U.S. Court of Appeals's recent 9 to 1 decision that it would rehear the case sD bads. The Commission also contests Commissioner Asselt: tine's charges that it relied on off-the-record information and that it denied a required public hearing on the basis of costs.

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3 In turn, Commissioner Asselstine has attacked each of the rationales the Commission's has given for its decision.

'~ Eignificantly, he points out that the NRC Staff has concluded that the carthquake/cmergency planning issue is apt gereric, but is only relevant to plants located in California (San Onof re as..i Diablo Canyon) where some precautionary measures have already bcen required. The fact that the NRC Staff has required safety precautions for the complicating effects of earthquakes on emergency planning only in California would appear to be a ds fas19 admission that the issue is not generic and certainly is relevant to Diablo Canyon.

Commissioner Asselstine has highlighted an apparent contradiction in the Commission's position: how can earthquakes r.ot be considered material to emergency planning at Diablo Canyon when the plant is built to the most stringent seismic standards of To be sure, a central issue in any plant in the United States?

virtually all other aspects of the Diablo Canyon proceeding was seismic safety. Diablo Canyon is located within three miles of the Hosgri Fault, discovered only after the reactor had been designed and partially constructed.

Regardless of its motivations, by deciding this issue was generic in nature, the Commission prevented any consideration of the earthquake /cmergency planning issue in the licensing process of the two nuclear power plants where earthquake risks are known to be highest (Diablo Canyon and San Onof re) . Ironically, the Commission's proposed generic rulemaking would exclude at all plants any consideration of the complicating effects of earthquakes on emergency planning (49 Ped. Reg. 49640).

The dispute between Commissioner Asselstine and the other Commissioners is the focus of the Subcommittee's July 10, 1985 hearing. Presently, their positions appear to be irreconcilable.

It should be noted, however, that the Commission does not r.ecessarily contest the accuracy of all of Commission Asselstine's formulation of his charges, but rather, their significance.

The Subcommittee Staff has identified three major questions >

which are likely to arise at the hearing. They are:

(1) By characterizing the possible complicating effects of earthquakes on emergency planning as a generic issue, did the Commission seek to avoid holding a public j hearing prior to licensing that was required by law; (2) Did the Commission consider off-the-record information i

in arriving at its decision to license Diablo Canyon; and (3) Did the Commission refuse to grant a required public hearing because of concern over the economic costs that

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4 would be incurred by a delay in Diablo Canyon's operation?

The Subcommittee Staf f's preliminary analysis based on its review of the closed meeting transcripts and other related documents is that the answer to each of these questions is yes.

Mcwever, we agree with the Commission that its final decision must stand or fall on its own merits and that the transcripts alone do not provide a complete picture of the decision-maki'ng process.

Nevertheless, the transcripts do raise profound questions abcc: the handling of this case and the Commission's licensing and decision-making process in general. Perhaps the most significant aspec: of the closed meeting transcripts is what they do not

. include. As a group, the Commission had no sustained discussion and barely even a brief cention of holding a public hearing prior

c licensing. This was the course its Office of General Counsel

DGC identified as presenting the Isast litigative risk.

nstead, the transcripts reveal a discussion whose overriding here was how to escape judicial intervention in a course of action that their lawyers advised against. This raises an additional cuestion, not discussed below, which is: If the Concission cid violate the Atomic Energy Act and the '

Administrative Procedure Act, did it do so knowingly and villfully?

III. ANALYSIS

l. SY CEABACTIBIZING THE POSSIBLE COMPLICATIEG EEEECTS DE IhBTBDDESES DB EBEBGENCY ELbHUIUG bS b GENEBIC ISSDE2 DID TBE C053ISSIDE SEEE TO AYDID SOLDING A PUBLIC BEABING EBIDE TO LICESSING THAT WAS BEDUIBED BY LAW 2 Commissioner Asselstine has charged that the Commission the igncred the advice of its legal and technical advisors that cuestion of the complicating effects of earthquakes on emergency lanning was material and thatofintervenors the Atomic were Energy entitled Act, to public as hearings under Section 189(a) atended. He has charged further that the Commission treated the

! earthquake / emergency planning issue differently than the manner it his addressed other natural phenomena which might complicate crergency plans at other plants and that there was no factual 4

tasis in the record of the proceeding for such differentiation.

The Commission has defended its treatment of the ear:hquake/ emergency planning issue at Diablo Canyon on four grcunds: (1) its belief that the Diablo Canyon region is of low l

tc moderate seismicity; (2) its belief in the adequacy of the L

5 seis..ic v design of the plant; (3) its belief that the j earthquake / emergency planning issue is generic in nature; and (4) that a its belief that its position is supported by the fact The reviewing court did not stay operation of the plant.

Conmission does not appear to contest Commissioner Asselstine's charge that it did not follow the advice of its legal and

{ technical staff, but asserts instead that as agency decision-makers they are free to accept or reject the views of advisors.

Commissioner Asselstine takes issue with each of the underpinnings of the Commission position that the earthquake / emergency planning issue was immaterial to the decision to issue a full power license for Diablo Canyon.

l fjIst, with respect to the Commission's conclusion that the j Diablo Canyon region is of low to moderate seismicity, he contends i that his fellow Commissioners misunderstood the Commissioner conclusion of

1. expert testimony and its own licensing boards.

Asselstine states that the Diablo Canyon site can only be

- considered of " low to moderate seismicity" if it is being viewed yls a yls other areas of California that are even more seismically volatile. In his March 19, 1985 letter to the Subcommittee he writes:

Ninety per cent of all seismic activity in the continental U.S. occurs in California and Western Nevada....To say that the Diablo Canyon area is one of

';; moderate seismicity when compared to a location on the San Andreas fault does not prove that earthquakes are not a significant part of the risk for that site.

1 Conmissioner Asselstine identifies what appears He to be a that notes glaring contradiction in the Commission's position.

no other U.S. reactor is built to such stringent seismic d

.2 standards, a fact which would appear to explicitly recognize the

,j f high seismic risk at Diablo Canyon:

The Commission cannot have it both ways. It cannot l

t require a very high design basis earthquake for Diablo Canyon and at the same time argue that earthquakes are not relevant to emergency planning because of the low likelihood of the occurrence of an earthquake.

Clearly, by characterizing the seismic risk at Diablo Canyon as " low to moderate" the Commission has conveyed an impression that the risk is not significant. The fact that Diablo Canyon was i

(SSE) of any designed to the highest Safe Shutdown Earthquake plant in the country conveys the opposite impression. (Note: the SSE is an estimate of the maximum earthquake potential for a given site and is used in the design basis of the reactor to determine what is the maximum vibratory ground movement key structures and

6 safety systems must be able to withstand and remain operational.

At Diablo Canyon the SSE is an earthquake producing a ground acceleration of 0.75g).

EssDDd, Commissioner Assel'stine summarily dismisses the relevance of the plant's seismic design in deciding whether to requ'.re consideration of the complicating effects of earthquak'es on emergency preparedness. He does this because the Commission formally recognized after the 1979 accident at Three Mile Island that since accidents can happen, engineered safety features and even other NRC regulations cannot alone be counted on to protect public health and safety. In his March 19, 1985 letter he writes:

The Commission's conclusion ignores one of the fundamental precepts of emergency planning: we plan for low probability occurrences because no matter how safe we try to make nuclear power plants there is always a possibility that some event will occur which will require use of one or more aspects of emergency planning. The probability arguments used by the Commission are really arguments that we do not need any emergency planning....

As will be discussed below, Commissioner Asselstine also implies that the seismic design is not a relevant consideration because this justification has not been used in any other proceeding.

ThiId, Commissioner Asselstine contests the Commission's characterization of the earthquake / emergency planning issue as generic. While the Commission apparently does not believe the earthquake emergency planning issue is material to Diablo Canyon, it removed it from this proceeding partly on the basis that it would be addressed in a generic fashion. As mentioned above, the Commission had made the same promise in 1981 when it similarly excluded consideration of the complicating effects of earthquakes on emergency planning in the San onofre case. In the closed meetings, there was discussion of the unfortunate appearance resulting from the Commission's failure to look at the issue generically as it had originally promised almost three years earlier. Its final licensing decision and its June 27, 1985 response to Subcommittee questions provide the following explanation:

[T]he Commission was diverted from this issue by the press of other important Commission business and the Commission took no action [after its 1981 San Onofre decision) until the Diablo Canyon case review.

The closed meeting transcripts lend a somewhat different gloss to this explanation. At one point, in discussing the Commission's response to the NRC Staff's recommendation subsequent to the San onofre decision that the issue was D91 generic,

7 Chairman Palladino remarked: "We have taken their stuff [the NRC Staff's) and just sat on it." (7/30/84; p. 29) In a different closed meeting, the Deputy General Counsel stated: ...we really don't have any good reason as to why we didn't do it two or three years ago." (8/3/84; p.5) Chairman Palladino then made the following suggestion as to how the final decision should be worded that was apparently not taken: "...I think we should include an explanation of why we did not do it earlier, even if we say we goofed." (8/3/84; p.6) Commissioner Bernthal agreed that the"I Commission should readily concede this point in its order:

think we ought to be straightforward and simple about it: We screwed up two years ago, we should have initiated this...."

( 8/ 3/ 84; p.85) Commissioner Asselstine pointed out in the closed meetings that he had repeatedly raised the issue over a one and a half year period without any interest being expressed by any other Commissioner.

Commissioner Asselstine's objection to looking at the issue generically is that it conflicts with the manner in which the NRC has routinely considered the complicating effects of other natural phenomena (tornadoes, hurricanes, floods, etc.) on emergency preparedness at other reactors. Under NRC regulations and practice, the complicating effects of natural phenomena on emergency planning have been considered on a case-by-case basis.

If there is to be a factual distinction made between natural phenomena, arguec Commissioner Asselstine, then there must be a rational basis supported by the record of the proceeding. He cites numerous references in the closed meeting transcripts where the commission's advisors informed them that no such basis existed. He contends that the Commission made a fastual determination that the complicating effects of earthquakes are less probable than the complicating effects of other natural phenomena. While such a determination might support the Commission's position, he charges it cannot be substantiated by the hearing record. As support for his position he cites a passage in the closed meeting transcripts where the following exchange took place between Chairman Palladino and the Director of the Office of Policy Evaluation (OPE):

EbalIEaD falladtDO: [D]o we have data that shows the frequency of earthquakes in California or in whatever region we want to talk about near there, near the plant?

Is that f requency of earthquakes significantly less than the frequency of fog, floods, rains, or whatever?

OPE: There is certainly nothing of that on the record.

(7/ 25/84; p.17)

Indeed, after Chairman Palladino pursued this line of questioning further, one attorney in the Office of General Counsel (OGC) finally responded:

8 OGC: "Well, I guess my answer is that none of this has been allowed to be adjudicated. The Commission clearly would be applying a different approach to this plant than it applied to emergency planning in every.other

. plant." (7/25/84; p.22)

In its June 27, 1985 response to Subcommittee questions,'the 1 Commission states its decision "did not rest" on a comparison of the relative probabilities of natural phenomena as accident "nitiators (see question 9). However, this response does not address Commissioner Asselstine's point that by treating earthquakes-differently than the manner in which it has considered other natural phenomena in other proceedings, the Commission must have made such an assumption. In a sense, Commissioner Asselstine is' ascribing a specific rationality to the Commission's decision based on the closed deliberations. In the alternative, it is possible that the Commission had some other basis of which it has not informed the Subcommittee or that there was no basis at all.

The Commission should be questioned on this point.

The Commission's decision that the issue warranted generic attenticn is all the more interesting in light of the expressed views of the NRC-technical staff and Advisory committee on Reactor

. Safeguards that the issue is only of relevance to San Onofre and Diablo1 Canyon in California. After the Commission's 1981 San Onofre decision, the NRC Staff reviewed the issue and concluded--as it had previously--that the issue was not generic in nature. A June 22, 1982 memorandum from William J. Dircks, Executive Director for Operations, to the Commission states:

It is the judgment of the staff that for most sites earthquakes need not be explicitly considered for emergency planning purposes because of the very low likelihood that an earthquake severe enough to disturb onsite or offsite planned responses will occur concurrently with or cause a reactor accident. Planning for earthquakes which might have implications for response actions or initiate occurrences of the " Unusual Event" or " Alert" classes in areas where the seismic risk of earthquakes to offsite structures is relatively high may be appropriate (e.g., for California sites and other areas of relatively high seismic hazard in the Western U.S. ) . . . .Because of the Islatlycly bish Ilska i current practice callsifor California licensees and ,

applicants to consider the effects of earthquakes in -

their emergency plans.... (Emphasis Added)  ;

(Note: Contrary to the Commission description of the Diablo Canyon region as'one of low to moderate seismicity, this memorandum uses the phrase "relatively high risk." Additionally, a January'13, 1984 memorandum from Mr. Dircks to the Commission appears to indicate that the NRC Staff position may have changed

9 ince 1982.

position change.) is and if it is different,The Subcommittee should determine wha the technical basis for any Commission belatedly issued for public comment , the propos complicating effect of earthquakes on emergency Reg. 49640, December 21, 1984). (49 Ped.

pla exclude consideration altogether. of earthquakes from emergency planningThe Ironically then, the Commission's proposed generic considered forofany consideration theplant, matter is that earthquakes need Dot be rather than concluding it should be considered otherwise for some suggest. In or all plants as a generic rulemaking might response, group, Commission on Junethe 10, 1985:

Advisory Committee on Reactor Safeguardsthe wrote to the

"[Wie see no technical reason for the exclusion of earthquakes from the natural phenomena considered in off-site emergency planning for nuclear power plants."

Perhaps more significantly though, in a document frequently cited by Commissioner Commission in a February Asselstine, the General Counsel informed the 10, 1984 memorandum (SECY-84-70) that the the issue did warrant consiJeration at Diablo memorandum, . This a Canyonl

/

action the Commission ultimately decided to take:an option paper, p f . s ./

• - Q @ , - - The Commission could direct 4g qk ' 5 , . if rulemaking proceeding at this late date.the staff to initiate a

d. It is not y 'y yb g

certain rulemakinghowalmost the court would vie'w the two-and-one-half initiation years after the of

- -E Commission's intentions were announced.

of thatsuch a rulemaking would likely be a determinat p/\j decisions for those plants located in areas ofthe issu

', relatively Thusa high seismicity (Diablo Canyon, San Onofre).

. gt$

lsi,- b2 to delay nigDLLicnDtly tbc cDDnidaratl2D DL th lESUS 1D DiablO CADyDD.

, consideration is In addition, even if generic itiated, j

' ('~  %. basis on the record the Commission would need a j p *f - to completin'g'the-r lemaking.or proceeding with licensing prior y Added) (SECY-84-70; Emphasis What this quotation appears to demonstrate is that the  !

Commission was well informed that.not only was the issue germane i to the Diablo Canyon proceeding, but that the likely outcome of ,

any generic consideration would be delayed treatment t of the issue i

10 at Diablo Canyon. In the face of this advice, the Commission's action would appear to constitute a blatant attempt to escape legal and regulatory requirements that require consideration of safety issues before a nuclear reactor operates at full power.

This inference would appear to be further supported by statements by Chairman Palladino during the closed sessions that he believed

'that the'most likely outcome of a generic rulemaking would be ccasideration of the issue on a case-by-case site specific basis

-(8/3/ 84 pages 34, 81, 82 and 85) . Furthermore, OGC informed the Commission that it was unaware of a basis for supporting the conclusion that the earthquake / emergency planning issue is generic:

OGC: ...lWel have not been able to construct a rationale for disgarding or contradicting the Staff's advice. the Staff has told you that there is this distinction (between plants in California and all others). To go forward now and say to the world there really is a generic problem, even though your own technical staff tells us it's only a problem for California, you have to have a reason.

C9531ss19D2I BRIntbal: And the reason is that its an abundance of caution, and that's an intuitive decision--that that would be my explanation, because that's precisely what it is. (8/3/84; pp.68-69)

E9urth and finally, the Commission has asserted that its position is validated because the U.S. Ccurt of Appeals did not intervene. In its February 25, 1985 letter to the Subcommittee, the Commission wrote:

IT]he majority of the panel of the District of Columbia Circuit Court of Appeals that heard this case agreed with the Commission that the decision was legally justified. Indeed, since no judge on that panel voted to stay the licensing of Diablo Canyon, no judge felt that this issue was so material that litigation over the matter had to precede the licensing of Diablo Canyon.

Commissioner Asselstine discounts the importance of the Court's decision partly because of the limited nature of judicial reciew and because one judge of the three menber panel agreed with hl..r that the earthquake / emergency planning issue was material.

But what he focuses his criticism on is the Commission's use of the phrase "so material" that in his opinion appears to imply a relative standard:

One member of the D.C. Circuit, Judge Wald, agreed with OGC's conclusion that the complicating effects of earthquakes was an issue material to licensing Diablo Canyon. The fact that she would not have stayed the L

c .

~

11 license pending completion of a hearing on the issue is irrelevant: the issue is either material and a hearing is required or it is not material and a hearing is not required. There is no sliding scale of materiality as the Commission's response suggests (i.e. "no judge felt that this issue was so material that litigation over the matter had to precede the licensing of Diablo Canyon.")

he Commission should be asked for the record what standard it requires to be met in order for a contested issue to be recognized as material to. licensing. It is important to note that the Commission's testimony states that the Court's decision to rehear the case ". . . removes its af firmance of the Commission's actions."

2. DID THE COMBISSION CONSIDER DEE:THE:BECOED IDEDEMATIDE IN ABBIYIUG AT ITS DECISIDE TO LICEBSE DIABLO CANYDB7 The Commission's closed meetings include discussions about a report prepared for Pacific Gas & Electric (PG&E), the licensee, known as the TERA report. Based on these discussions, Conmissioner Asselstine leveled the following charge:

The Commission relied on material not in the record of the Diablo Canyon proceeding to conclude that the Diablo Canyon emergency plan is sufficiently flexible to accommodate the complicating ef fects of earthquakes on emergency planning despite repeated warnings that such reliance on extra-record material was inappropriate and legally impermissable.

In its June 27, 1985 response to Subcommittee questions, the Commission stated: "the commission's decision relied only on information in the record and reasonable inferences from that information."

There are really two separate issues involved: (1) did the conmission consider and rely on off-the-record information; and, s2) are the " inferences" or conclusions made by the Commission supported by on-the-record material. Obviously, these are not mutually exclusive propositions.

The Commission's February 25, 1985 letter acknowledges that the TERA report was discussed during the closed meetings.

Houever, the Commission asserts that a distinction should be made between discussion of off-the-record information and use of the information to publicly support its decision:

[Alll the material discussed by the Commission at the meetings in question--most notably the multivolume report prepared by the utility to demonstrate that its

12 plans for handling the possible effects of earthquakes and emergency planning (the so-called TERA Report)--was provided to all parties for comment. The Commission was fully advised, however, that this material was.not in the adjudicatory record and, thus that only limited use could be made of the TERA report. As a result, the Commissi.on did not use that report as a justificatio'n for its ultimate rationale not to recuire litigation over the possible effects of earthquakes on Diablo Canyon emergency planning.

Given the apparently important role of the TERA report in helping members of the Commission reach a decision, it is not apparent that the Commission's distinction between discussing off-the-record information and using it to defend itself in Court has any legal significance. Had it not been for the public release of the closed meeting transcripts or Commissioner Asselstine's public charges, neither the public, the Congress or e courts would have known that off-the-record information was onsidered in the deliberative process and that. internally it L played a formative role in the ultimate decision reached.

To be sure, Commissioner Asselstine has stressed in hi's

- response to the Commission that numerous passages in the closed meeting transcripts appear' to show that several of the other Commissioners were making their determination that earthquakes need not be considered, at least in part, on the basis of the TERA report and assumptions of the NRC Staff based on that report. One such reference quotes Chairman Palladino apparently admitting to relying on off-the-record information:

! Cha1 Iran Pallading: I know I'm drawing on information that may not be in the record. But I don't want to l

pretend not to have information that I do have. . . . (7/3 0/ 85; p.25)

Nevertheless, despite the above comment- "I don't want to pretend not to have-information that I do have"--acknowledgement of reliance on the TERA report was taken out of the final Commission decision. However, in this context it is worth noting that draft versions of the Commission's decision specifically cited the TERA report. Based on the transcripts, it would appear reasonable to conclude that the reference to supporting L off-the-record information was omitted from the final version because it presented an obvious invitation for' judicial reversal of the decision. Note-for example the following exchange between Chairman Palladino and OGC:

OGC: (Wlill this order, then, refer to the off-the-record

! material or will it ignore it?

l Cha1Isan Palladino1 Well, we could use off-the-record l

l i

L i _ ._ _

a -

13 material.

OGC: Well, then you'll leave yourself open both, procedurally, to the challenge that you've,really looked at the of f-the-record material to make a decision, but you don't want to let anyone have a shot at it in adjudication and that's why you're going this way. ( 8/ 3/ 84 ; pp. 7 0-71)

Consequently, the Subcommittee Staff concurs with the conclusion reached by Commissiner Asselstine in his March 19, 1985 letter:

The Commission clearly relied on such extra-record information in making its determination about whether to consider the effects of earthquakes on emergency planning. It makes no difference whether that reliance was " limited". Further, to argue that its conclusion was an inference based on record material ignores the fact that that is itself a factual determination which parties should have been given an opportunity to challenge at a hearing.

There is no question that the Commission's attention was directed to off-the-record information and that it was discussed in some detail during the closed sessions. And, as both the Commission-majority and Commissioner Asselstine note, OGC advised the Commission initially against relying on this information.

Nevertheless, OGC informed the Commission that it existed and OPE

~

conducted a briefing on the technical details. In a July 18, 1984 memorandum from the General Counsel to the commission, OGC issued the following warning:

OPE's analysis.of the publicly available but non-record material would support a preliminary view that current emergency response plans would assure adequate protection to public health and safety in the event that an earthquake occurs near Diablo Canyon at about the same time as a radiological emergency. However Joint Intervenors dispute the factual accuracy of the analyses reviewed by OPE and neither FEMA nor the NRC Staff have provided their own positions on these analyses. Thus, Lb2KD DK2 212DDDt2 9% UDLDirDDSB DDd DDGDrtaiDry in relying on the publicly available information to support a determination that operation is safe....

(SECY-84-291; Emphasis Added)

However, during a closed session, one OGC lawyer recognizing the "Hebson's choice" actually recommended that the Commission use off-the-record information to justify its position because that would be better than having no rationale at all:

OGC: I think any rationale is better than none. And I think it is better for the Commission to even

fx s . .

14 impermissively look at of f-the-record information to at least be able to make some kind of safety finding for its own self than to--than to say we' re just not going to consider this at all. (7/30/84; p.41)

L The following are excerpts of the presentation by the Office

-of Policy Evaluation (OPE) during one of the closed meetings about the extra-record TERA report:

OPE: The TERA, so-called TERA report is a mess, I am holding it in my hand here. It is a text and two appendices, a very comprehensive detailed thing. . . .these things are not on the record and not taken-in evidence, as (OGC] stated. But for what it's worth, you know, we did read it, review it and to some extent, you know, evaluate it....

But their bottom lines were pretty much that the emergency planning should be so broad and so flexible that it should be insensitive to the magnitude of the earthcuake....And one bottom line...of this whole exercise was to determine, to estimate evacuation times.

One thing I noticed on record, very much on recor'd was to evacuate the whole, the entire basic emergency planning zone would take 6.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> (under normal conditionsl . . . . And I can see, going .through this whole

- TERA drill. . .they changed the number--it would go as high as 10.5 if you tried to evacuate the whole 15 miles....So,'it would go up from 6.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> to evacuate overybody to 10.5. But then there were some caveats where I see the calculations depend on that there be certain resources available to fix bridges, to fix roads. So, that evacuation number could go up to 14.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> or as high as 18.5. hours. I thought that's pretty much the big bottom line that they came up with, Lbs c2acuatlDD tiesD that Lbsy ars ADDumLD9 iD tbs bear 1D92 cDd accsptsd by tbs (NBC atomic Safety add LicsDs1D91 JBloard as Isa112 tic sculd d9pble or tripls, depending on how well all these emergency response things are, you know, whether you really do have the resources to fix bridges, direct traffic, you know, fix roads. (7/25/84; p.38-42; Emphasis Added)

While the above quoted passage from the Commission's closed session is important because it reveals the depth of discussion of off-the-r- ord caterial, it is significant for another reason as well. In . s February 25, 1985 letter to the Subcommittee, the Cormission made a point of suggesting that the TERA report supported its position. The Commission implied that it was acceptable to look at but not rely on off-the-record information if it supported its position. At the same time, citing the U.S.

Court of Appeals decision in the case, the Commission conceded

9

/ .

l-15 consideration of off-the-record information would definitely be i.ptcper if it did not support its decision and the decision did not reflect this fact:

While the Court recognized that it would be improper for the agency to exclude evidence adverse to its ultimate position from the record, it also quite correctly observed that no such charge had ever been leveled by Commissioner Asselstine or any Congressional critic.

However, 1t is hard to conceive that a doubling or tripling of evacuation times as estimated by the TERA report--as high as 18.5 hour5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />s--supports the Commission's position that the earthquake /cmergency planning issue did not deserve consideration.

(Note: NUREG-0654, NRC's " Bible" on emergency planning states that a tajor release may occur within 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> of an accident at a f nuclear reactor. We are not aware of any information that would suggest that sheltering--normally the main alternative to evacuation--would be reliable, let alone available, subsequent to a major earthquake at.Diablo Canyon. It should also be noted that NRC has no requirement or guidance for the minimum amount of time 7 that evacuation should be able to be accomplished within.)

Finally we return to the issue discussed in question 1 above:

did the Commission make inferences or reach conclusions which are '

not supported by the record of the proceeding. The Commission concedes that it made inferences which are not explicity in the record but asserts that this was acceptabic. ,

o Commissioner Asselstine responds that the inferences made are actually factual determinations and as a matter of law and agency practice, must therefore be formally litigated. In his March 19, 1985 letter, Commissioner Asselstine writes:

OGC... told the Commission that the conclusion that the' delaying effects of fog and other natural phenomena and the delaying ef fects of earthquakes are similar and that the emergency plans are thus flexible enough to deal with the impact of carthquakes is not in either the TERA '

study or in the record; it is an assumption that the (NRC) staff and PG&E had drawn out of the documentation.

OGC and OPE told the Commission that Joint Intervenors disputed that conclusion and had not been given an opportunity to challenge it because of the rulings by the Diablo Canyon Licensing Board.

The following excerpts, from which much is omitted, appear to corroborate Commissioner Asselstine's charge:

ChDlIDDD PallDdlD9: Now, my feeling was that we are taking cognizance of earthquakes in California....We are taking cognizance by saying such things as, earthquakes

16 are really no worse than fog or whatever. And the failure to recognize that, I think, weakens this whole argument....

OGC: Let me discuss that with you. The whole problem in front of the Commission is not really whether the.

Commission has or has not looked at earthquakes. It's a question of whether this has been properly done procedurally. If, as you are telling me, looking at earthquakes is material to the licensing process, then as we read the (UCS y, UBC 1 emergency exercise decision, that means it's got to be adjudicated first (prior to licensing 1....

ChalIsaD Eallad1 Doi Yes. I am also going on the premise that earthquakes are far less frequent than other natural phenomena.

OGC1 But the point is, this is a procedural problem.

If it's part of the Commission's decision-making process, whether it's looked at specifically, explicitly or implictly, then someone gets a shot at it. And what we are trying to do here is read the regulations'to say that the Commission doesn't look at it and explain why.

In other words, we are trying to make it not material to the licensing process. We discussed last time that that, on its face as a practical matter, is a very difficult concept to sell when you are talking about California.

COEmiss19DDI Ass 21stlDs: Not only is it a difficult concept to sell, it strikes me that it's wrong. I don't understand how you can differentiate, for example, as you try to do in this order, between earthquakes and hurricanes.

DGC: But let me go back to the fundamental point. The Commission cannot have it both ways that it is something that it is material to the license and something that cannot be adjudicated before the license lis issued)....

ChalIEa0 Pallad1DO: Well, I was trying to say we look at it in terms of the natural phenomena and I gather that was looked at in terms of other natural phenomena.

OGC: I don't think you will find anywhere in the record

! anybody making any statement, and in fact, I don't (thinkl you'll find it even in the off-record material,

17 anybody making a statement saying, "Here is why by looking at Natural Phenomena X, Y and Z, fogs, hurricanes and rain, we believe that we have encompassed or enveloped what we can expect from an earthquake."

Chairman Pallad1DO: I thought I heard that from (OPE]

last time.

OGC: You heard that one could make that argument.

OPE: .They were judgments that we were making.

ChaiIDAD PalladiDO: You were making on the spot here.

OPE: Well, yes, they seemed reasonable to make.

Chairman PalladiDO: Well, I thought.you had some basis for making those [ judgments).

CbaiIDAD Pallading: For example, I think even in here Ithe draft decision) we talk about 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />, the evacuation time changes from 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> to 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> because of fog....And I think 10.5 because of earthquake.

OPE: Yes, but that part isn't in the record, that second part.

(Simultaneous conversation)

ChalIDAD Pallad1DO: Where did you get that?

DPE: That was dnne in the TERA study.

CDDmiss19 Der Asselstinc: Yes. See, that's the problem.

Here you are relying on the applicant's report in order to refuse to give people an opportunity to get a hearing on those very factual questions that you are looking to the TERA report (for]. (7/30/84; excerpts f rom p.

14-24)

Contrary to the above discussion, this matter received the following treatment in the Commission's final decision (CLI-84-12):

The Commission's view that it need not give specific consideration to the complicating effects of earthquakes on emergency planning in this case is bolstered by the following consideration. Specific consideration has been given in this case to the effects of other relatively frequent natural phenomena....In the extreme, these phenomena are capable of resulting in area-wide

p .

l 18 i

l disruptions similar to some of the disruptions which may result from an earthquake. Testimony in the Diablo Canyon record indicates that adverse weather conditions such as the effect of heavy fog could increase evacuation time to approximately 10 hou;s. Thus, while no explicit consideration has been given to disruptions

caused.by earthquakes, the emergency plans do have considerable flexibility to handle the disruptions caused by various natural phenomena which occur with far greater frequency than do damaging earthquakes, and this implicitly includes some flexibility to handle disruptions by earthquakes as well.

l To summarize, both Commissioner Asselstine and OGC have

• argued that the Commission was resting its final decision (1) upon two acsumptions that could not be supported by the record: that the disruptions caused by carthquakes are similar to the disruptions posed by other natural phenomena and therefore existing emergency plans are sufficiently flexible to cope; and (2) thau :?rthquakes are less likely to complicate emergency plans than other natural hazards.

3. DID TUS COMMISSION BEEUSE TO GBANT A BEQUIBED EUDLIC UEABIUG DECAUSE DE CONCEBU DYEB THE ECONOMIC COSTS THAT WOULD BE IUCUBBED DY A DELAY IU DIADLD CANYONIS DEEBATIQU?

The significance of this question is partly dependent on whether a hearing on the earthquake / emergency planning issue was actually required by Section 189(a) of the Atomic Energy Act because the issue was material to licensing.

The Atomic Energy Act and related case law limits to some extent the Commission's mandate to protection of public health and safety. On various occasions, the General Counsel has advised the Commission of the limited role costs can play in Commission decision-making (c. f. , May 4, 1984 and October 18, 1979 memoranda). The commission readily acknowledges that in a case such as this, it would have been improper to consider costs at all in its deliberation of whether the earthquake / emergency planning issue was material to licensing and a public hearing was therefore required. In its June 27, 1985 response to Subcommittee questions, the Commission stated:

The Commission believes that a potential licensing delay that could result from a public hearing process is sisarly not a relevant consideration in the determination of whether an issue is material to a licensing decision.

Nevertheless, this is precisely the charge that Commissioner

~

19 Asselstine has made.

Commissioner Asselstine's charge about the motivations of the Commission-majority is apparently based on what transpired in the closed deliberations. In his letters to Chairman Markey, Commissioner Anselstine has written:

(T)he Commission's decision was motivated solely by the objective of avoiding delay in issuing a full-power license for the Diablo Canyon plant. The Commission refused to recognize the right to a hearing on this issue because such a hearing could delay the issuance of a full-power license for the plant.

In its February 25, 1985 letter, the Commission responded that commissioner Asselstine's allegation is false. However, aside from quoting a passage from the U.S. Court of Appeals decision it offered only a brief rebuttal:

Had the Commission believed that public health and safety required litigation over the earthquake / emergency planning issue, it would have ordered the litigation notwithstanding possible delay in the plant's operation.

This statement is tautological. The question before the Commission was whether the issue was material to licensing and, as such, required a public hearing. If the issue was material, then the purpose of the hearing and litigation would be to arrive at a factual decision of whether public health and safety required some action. The Commission's statement prejudges the question.

Indeed, the purpose cf the licensing process is to make public health and safety judgments. Hearings are routinely granted on issues that are subsequently determined not to necessitate any ction. The Commission should be questioned as to whether they have some other response to Commissioner Asselstine's charge, particularly in light of the passages cited by Commissioner Asselstine which would otherwise appear to support his position.

Commissioner Asselstine's March 19, 1985 letter to the Subcommittee is especially critical of the Commission's decision that the carthquake/ emergency planning issue was generic in nature. By reaching this conclusion, the commission was effectively able to remove it from the Diablo Canyon proceeding.

Ile states:

The Commission chose to conduct a generic rulemaking because with a rulemaking it could appear to address the issue, it could remove the issue from consideration in the Diablo Canyon case and at the same time avoid 1 providing an opportunity for a hearing which might delay l issuance of the license.

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20 Similarly, as discussed above (page 9) the Office of General Counsel had advised the Commission that the likely outcome of a generic rulemaking would only be to delay consideration of the issue at Diablo Canyon, not remove it. ( S ECY-84 -7 0) This is a very significant point since the licensing process is not intended to be circumscribed merely because a public hearing to evaluate a safety question is inconvenient. Importantly, it appears that' even Chairman Palladino shared OGC's view that the result of a rulemaking would be to determine that the issue should Dat be a c: tea canarically. He stated this view on more than one cccasion. For example:

CbD1IEAD fallad1D9: And I think my feeling about the generic situation is it'll come down to case-by-case anyhow. ( 8/ 3/ 84 ; p.81; see also pages 82 and 85)

When asked why he wanted to have a generic rulemaking if he did not think the issue was generic, Chairman Palladino said that he might change his mind after the rulemaking process.

Commissioner Asselstine points out that the closed meeting transcripts reveal numerous references to the U.S. Court of Appeals for the District of Columbia's 1984 decision in Uni'9D of CODC9IDsd ScisDtists ys4 BBC (735 F.2d 1437, D.C.Cir.1984) regarding the holding of emergency planning exercises or test drills. In this decision, the Court held that section 189(a) of

- the Atomic Energy Act required that issues deemed material to licensing must be litigated prior to plant operation. The transcripts appear to reveal that one reason the Commission decided to reject the much discussed option of holding the public hearing after plant operation is that it would " fly in the face" of the Court's recent decision. The advantage of holding a hearing after licensing, according to the closed meeting transcripts, is that it would have provided at least some opportunlty for litigation without delaying operation of the plant.

'e Commissioner Asselstine makes one particularly interesting cbservation. He suggests that his assertion that the Commission baced its decision on avoiding a licensing delay is implicit in the nature of the deliberations which were limited in scope. In his March 19, 1985 letter he writes:

The most telling support for my statement that the Commicsion's decision was motivated solely by the objective of avoiding delay in issuing a full power j, license for the Diablo Canyon plant is the fact that there was never any serious commission discussion of the

' option of holding a hearing on this issue before licensing the plant. OGC told the Commission that the course of least litigative risk, and therefore the legally proper course, was to provide an opportunity for

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21 a hearing before Diablo Canyon was licensed. Each time the possibility of a pre-licensing hearing was mentioned, individual Commissioners expressed dismay at the thought of holding up the license in order to litigate the issue.

Commissioner Asselstine, having already cited numerous passaces in the closed meeting transcripts to substantiate this assertion, then references a remark made by Chairman Palladino made in the context of his decision to use the TERA report to support his belief that existing emergency plans were sufficiently flexible enough to cope with earthquakes:

ChalIman Ea11adin9: I do feel that at this late stage requiring a delay while we wait for a hearing is not in the best national interest. (7/30/85; p.25)

And, in a previous meeting, the following exchange took place:

OGC: The extreme would be to hold up the license until this issue is adjudicated. I don't think that there is going to be a wild round of applause for that alternative.

CDEDiss19ncI EQbsIts: How long would it take to do that?

OGC: Well, the estimate is three to nine months. I would say nine months is most probably too short.

CommissionsI BobsIts: That's my concern.

Cha1Iman Eallading: But one of the things that I think makes me shy away often from hearings is because as soon as we hear the word " hearing," you see so much time elapse that it maybe overinfluences one. (7/25/84; pages 30-31)

IV. COUCLUSIOU In summary, it would appear that the Commission's decision not to permit public hearings on the possible complicating effects of earthquakes on emergency planning was contrary to Congress' intention that issues material to licensing be litigated prior to plant operation.

Additionally, as emphasized by the Commission's own lawyers, the decision not to hold a public hearing and factual determinations made by the Commission are not supported by

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22 information in the on-the-record proceeding. To add insult to injury, it also appears that off-the-record information was considered and relied on without attribution. Perhaps most significantly, however, is the implication that rather l

than being based on any technical expertise to which i

deference is usually deserved and granted, the Commission's

' decision not to grant a public hearing on a contested

. material issue appears to have been based on the

- consideration of the costs of a delay. Instead of following

-its own rules and regulations, it appears that the Commission circumvented the purpose of the licensing process by promising to consider the earthquake / emergency planning issue ,

generically. No adequate explanation has been provided for why the Commission failed to look at the issue after it promised to in 1981 when it licensed San Onofre and before it licensed Diablo Canyon in 1984. It is more than ironic that the Commission's belatedly proposed generic rulemaking would elf.minate consideration of this issue at all plants.

<egardless of its motivations, the issue of the possible complicating effects of earthquakes on emergency planning was

- removed from the licensing process of the two nuclear. power plants where earthquake risk is known to be highest (Diablo Canyon and San Onofre).

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