ML20065H679

Reply to Applicant & NRC 820924 Briefs Re Status of Pending Appeals from Authorization of Low Power Operation.No Adequate Factual Basis Exists to Support ASLB Dismissal of Joint Intervenor QA Contention as Moot.W/Certificate of Svc

ML20065H679
Person / Time
Site:	Diablo Canyon
Issue date:	09/30/1982
From:	Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8210050218
Download: ML20065H679 (8)

Text

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UNITED STATES OF AMERICA

'IC yp NT-4 gj.jp NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD LV FICE DOCKET REMnv BR ERvict.

)

In the Matter of

)

)

PACIFIC GAS AND ELECTRIC COMPANY )

Docket Nos. 50-275 O.L.

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50-323'O.L.

(Diablo Canyon Nuclear Power

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Plant, Units 1 and 2)

)

)

)

JOINT INTERVENORS' REPLY TO BRIEFS RE MOOTNESS On September 24, 1982, all parties to this proceeding filed briefs regarding the status of the pending appeals from the authorization of low power operation at Diablo Canyon Nuclear Power Plant ("Diablo Canyon").

Having reviewed the briefs filed by Pacific Gas and Electric Company ("PGandE")

and the NRC Staff, Joint Intervenors continue to believe that their appeal is not moot and hence that a decision on the merits by this Appeal Board is necessary.

The purpose of this brief reply is to respond to several points raised by the Staff and PGandE.

,A.

Emergency Preparedness 1.

Both PGandE and the Staff cite a revision of the Commission's regulations regarding emergency planning as 8210050218 820930 PDR ADOCK 05000275

.G PDR.

their primary ground for contending that Joint Intervenors' appeal of the Licensing Board's emergency preparedness findings is moot.

As the Staff notes in footnote 6 of its brief', however, the Commission itself acknowledged in the.

Statement of considerations underlying the regulatory change that at least seven of the 10 C.F.R. S 50.47(b) standards regarding offsite planning must be considered prior to low power operation.

Joint Intervenors' contention on appeal is that the Licensing Board failed to consider and address explicitly the conceded noncompliance of the combined applicant, state, and loc'al emergency plans to comply with even one of the S 50.47(b) standards.

Under either the regulations in effect at the time the Licensing Board's decision was issued or the regulations as described by PGandE and the Staff, that contention is viable and cannot be dismissed as moot.

2.

PGandE and the Staff cite the San Onofre decision as the basis for their claim that Joint Intervenors' contention regarding earthquakes and emergency planning'is moot. Both parties have mischaracterized that decision's effect.

It was issued and is binding only in the San Onofre proceeding and under the facts specific to that particular case.

Its relevance to the Diablo Canyon proceeding is simply as precedent which this Board may consider if. applicable in its review of--J aint Intervenors' appeal.

Whether or not this Board determines that the Licensing Board erred in refusing to require' planning for the complication of earthquakes on.

^

s

, emergency planning, the ' issue has clearly not been mooted by.

theidecision..Indeed,-Joint Intervenors continue to'believe that the failure of the relevant plans to address earthquake l

emergency preparedness is a uniquely significant deficiency in L

planning at Diablo Canyon in light of the. recognized seismic risk associated with the siting of the facility less than three miles from a major active earthquake fault.

t 1

j B.

Relief and Safety Valve Testing 1.

Although the EPRI. valve testing program has progressed since the Licehsing Board's decision.was' issued in July 1982, even the Staff concedes that the documentation

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which constitutes the critical' link between EPRI's program and-

[

Diablo Canyon -- reports showing the applicability of-the EPRI test results to the Diablo Canyon valves ---is.not expected to-be submitted until late November 1982 at the earliest. 'Until j..

t-that: time, the requirements of NUREG-0737, Item II.D.1, will j-not have been satisfied.

Throughout the low power proceeding, f

Joint Intervenors urged the Licensing Board to require the.

submittal of all test results and documentation ~ prior to

. licensing.. Particularly in light of the delays in completion j

of :the tests,1the-mere expectation of ' timely compliance' with

.the documentation requirements is an insufficient' basis for licensing..

2.-

The importance of the plant-specific I

f. documentation;is' heightened also:by'the uncertainties s-

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regarding valve design and qualification arising out of the

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ongoing design verification program at Diablo Canyon.

PGandE

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s has conceded'that errors in seismic design and qualification

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of the relief valves were made, and the significance of those errors has not yet been determined.

Until the audit has r

progressed sufficiently..to resolve these questions of valve design, a ruling that Joint Intervenors' appeal of the Licensing Board's valve findings has been mooted would be plainly inappropriate.

C.

Denial of Contentions

]

As noted in Joi'nt Intervenors' initial brief regarding mootness, the Appeal Board. explicitly excluded the Licensing Board's denial of contentions from the instant question of mootness.

September 2 Order,- at' 2 n.2.

In addition, however, the Staff has conceded in its brief that at least eight of Joint Intervenors' contentions denied ~in the j

low power proceeding have not been mooted by the August'31 i

i Initial Decision.

The factual basis for one~ofs those,

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-regarding quality assurance, has subsequently been established-

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by.the continuing, still accumulating evidence-of significant' l

and widespread breakdowns in'the Diablo Canyon quality h

. assurance / quality control programs.

Now the subject of a l

4 motion to reopen-the record' filed with the Appeal Board,.these

{

errors demonstrate the absence of an-adequate factual basis-

.for;theLicensing. Board's-rejectionof,JokptIntervenors' jproposed' contention on-quality assur'nce Thus,'the: appeal of a

1 the Licensing Board's denial of= contentions;is notlmoot.

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D.

National Environmental Policy Act The Staff acknowledges that Joint Intervenors' pending appeal of the Licensing Board's failure to require compliance with NEPA' remains a live controversy.

However, it..

has mischaracterized the scope of that appeal by limiting it 4

to the.need for a separate environmental impact statement (EIS) for low power licensing.

Although that is one aspect of I

the contention on appeal, Joint Intervenors also challenged the failure of the Licensing Board to require the preparation of a supplemental EIS to consider the environmental effects of a Class 9 accident at Didblo Canyon.

Neither element of Joint Intervenors' NEPA claim has been mooted by the August 31 Initial Decision.

Thus, those issues must be determined on the merits by this Board.'

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CONCLUSION 4

For the reasons stated herein and in Joint Intervenors' l

i l

September 24 Brief in Response to September 2 Order, Joint Intervenors submit that their pending appeal of the i

Commission's authorization of licensing for low power operation is not moot.

?

DATED: September 30, 1982 Respectfully submitted, i

JOEL R. REYNOLDS, ESQ.

i JOHN R. PHILLIPS, ESQ.

Center for Law in the Public Interest 10951 W..Pico Boulevard f

I Los Angeles, CA 90064 (213)470-3000 i -

DAVID S. FLEISCHAKER, ESQ.

P. O. Box 1178' Oklahoma City, OK 73101 O

By p L R. N NOLDS-t Attorneys for Joint Inter-venors SAN LUIS'OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

4 ECOLOGY ACTION CLUB t

3-SANDRA SILVER ELIZABETH APFELBERG

~ JOHN J. FORSTER

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i a-J' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

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In the Matter of

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)

I PACIFIC GAS AND ELECTRIC COMPANY )

Docket Nos. 50-275 O.L.

)

50-323 0.L.-

j

)

(Diablo Canyon Nuclear Power Plant, Units 1 and 2)

)

)

)

4 CERTIFICATE OF SERVICE I hereby certify that on this 30th. day of September, 1982,'I have served copies of the foregoing JOINT INTERVENORS' REPLY TO BRIEFS RE MOOTNESS, mailing them through the U.S. mails.first class, postage prepaid.

• Thomas S. Moore, Chairman j

Atomic Safety & Licensing Appeal Board Mr. Fredrick Eissler 2

U.S. Nuclear' Regulatory

Scenic Shoreline Preservation e

Commission Conference, Inc.

-Washington, D.C.

20555 4623 More Mesa-Drivel Santa Barbara,:CA 93105

• Dr. W. Reed Johnson-2 Atomic Safety &. Licensing Malcolm.H.- Furbush,;Esq.-.

Appeal Board Vice President.&.GeneralE U.S. Nuclear Regulatory

. Counsel-

~

Commission'

' Philip-A;-Crane, Esq.

Washington,-D.C' 20555 Pacific Gas:& Electric Company 1 Post' Office: Box 17442

• Dr. John H.-Buck San' Francisco,-CA. 94106'

' Atomic SafetyL& Licensing LAppeal Board

'U.S.

Nuclear l Regulatory-i-

Commission ~

' Washington,.D.C.:.20555 q

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• 1ByExpress' Mail}

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• Docket & Service Branch David S. Fleischaker Office of the Secretary Post Office Box 1178 U.S. Nuclear Regulatory Oklahoma City, OK 73101 Commission Washington, D.C.

20555 MHB Technical Associates 1723 Hamilton Avenue Bradley Jones, Esq.

Suite K Donald F. Hassell, Esq.

San Jose, CA 95725 Lawrence Chandler, Esq.

Office of the Executive Legal Arthur C. Gehr, Esq.

Director - BETH 042 Snell & Wilmer U.S. Nuclear Regulatory 3100 Valley Center Commission Phoenix, AZ 85073 Washington, D.C.

20555 Virginia and Gordon Bruno Herbert Brown, Esq.

Pecho Ranch-Lawrence Coe Lanpher, Esq.

Post Office Box 6289 Alan Dynner, Esq.

Los Osos, CA 93402 Hill, Christopher Phillips Sandra and Gordon Silver 1900 M Street, N.W.

1760 Alisal Street Washington, D.C.

20036 San Luis Obispo, CA 93401 Byron Georgiou, Esq.

Bruce Norton, Esq.

Legal Affairs Secretary to 3216 N. Third Street the Governor Suite 202 State Capitol Building Phoenix, AZ 85012 Sacramento, CA 95814 Nancy Culver Jance E. Kerr, Esq.

192 Luneta Lawrence Q. Garcia, Esq.

San Luis Obispo, CA 93401 J. Calvin Simpson, Esq.

California public Utilities Carl Neiburger Commission Telegram Tribune 5246 McAllister Street Post Office Box 112 San Francisco, CA 94102 San Luis Obispo, CA 93402 f-. M s

AMANDA VARONA By Express Mail

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