ML20127A109

Memorandum & Order CLI-85-14,authorizing Issuance of Full Power License for Unit 2 & Declining to Stay Effectiveness of Order to Assure Judicial Review.Served on 850801

ML20127A109
Person / Time
Site:	Diablo Canyon
Issue date:	08/01/1985
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	JOINT INTERVENORS - DIABLO CANYON, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), PACIFIC GAS & ELECTRIC CO.
References
CON-#385-065, CON-#385-65 CLI-85-14, OL, NUDOCS 8508050415
Download: ML20127A109 (10)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .'O[ih

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COMMISSIONERS:

Nunzio J. Palladino, Chairman g. ,

Thomas M. Roberts y).3 j.,d.

m3 :

James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.

ElfVED AUG-11985 In the Matter of PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 OL

) 50-323 OL (Diablo Canyon Nuclear Power )

Plant, Units I and 2)

MEMORANDUM AND ORDER CLI-85-14 Introduction Th.: order concludes the Nuclear Regulatory Commission's ("NRC" or

" Commission") consideration of whether to authorize the issuance to Pacific Gas and Electric Company ("PG&E") of a full-power operating license for the Diablo Canyon Nuclear Power Plant, Unit 2 ("Diablo Canyon Unit 2"). This consideration includes a conclusion of the formal proceeding on contested issues regarding Diablo Canyon Unit 2 as well as affirmative findings on the successful resolution of uncontested issues.

The Commission, for the reasons discussed below, finds that all matters have been resolved adequately to authorize the issuance of a full-power operating license for Diablo Canyon Unit 2.

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2 Discussion ALAB-811 In ALAB-811, the Appeal Board determined that no further hearings were necessary to resolve the design issues with respect to Unit 2 and found that the Unit 2 verification program was sufficient to establish that the design of Unit 2 was satisfactory and that therefore there was l reasonable assurance that Unit 2 could be operated without endangering the health and safety of the public. A petition for Comission review of this decision was then filed. The Commission has reviewed this petition but finds it to be without merit. Accordingly, it is denied.

Stay Request By letter dated July 24, 1985, the Joint Intervenors applied to the Comission for an order staying the effectiveness of any authorization by the Comission of the issuance of a license for full-power operation of Diablo Canyon, Unit 2. In attempting to meet the stay criteria,I the Joint Intervenors advance three arguments in support of their likelihood l of prevailing on the merits: (1) the failure of the Comission to 1

The factors prescribed by 10 C.F.R. I 2.788(e) to be considered in connection with a request for stay are:

(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.

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3 pemit consideration of seismic effects on emergency planning; (2) the refusal of the Appeal Board, in ALAB-782, to reopen the record to consider new information which allegedly undemines the Appeal Board's findings in ALAB-644, 13 NRC 903 (1981); and (3) an allegation that the Appeal Board's decision in ALAB-811, approving the design adequacy of Unit 2, is not supported by substantial evidence.

The Commission has already fully considered the question of whether its regulations or special circumstances require consideration of the effect of seismic events on emergency planning at Diablo Canyon in the context of the full-power licensing of Unit 1. See CLI-84-12, 20 NRC 249(1984). This matter was the subject of a petition for review to the United States Court of Appeals for the District of Columbia Circuit and is scheduled for rehearing en banc.2 Under 28 U.S.C 6 2347(c) the Comission should not, without judicial approval, reconsider a decision after the filing of a petition for judicial review.3 Moreover, the Court, in the same Order, explicitly declined to stay the operating license pending the rehearing en banc. Thus i.he full Court did not regard the reopening of this issue as warranting a stay of the license.

The Joint Intervenors assert that new seismic information calls into question the Appeal Board's conclusion, in ALAB-644, that the seismic design criteria for Diablo Canyon are adequate. The Joint I

2 San Luis Obispo Mothers for Peace, et al. v. Nuclear Regulatory Commission (No. 84-1410 May 1, 1985).

3 See, e , American Farm Lines v. Black Ball Freight Service, 397 U.S. 572 5 1970).

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Intervenors moved the Appeal Board to reopen the record to consider this information but a majority of the Board ruled in ALAB-782 that the motion could not be considered for lack of jurisdiction. The Comission has declined to review this decision. The fact that the adjudicatory record was not reopened does not mean that this information has been ignored by the Comission. On the contrary, the Comission, in its order authorizing a full-power license for Diablo Canyon Unit 1, CLI-84-13, 20 NRC 267, 275-78 (1984), itself reviewed the same new geological information presented in the reopening motion and found that it did not undermine ALAB-644. Consequently, had the Joint Intervenors submitted their motion to the Comission, the Comission would have found that the reopening standard was not met. Finally, the Comission has included a condition in the license for Unit i requiring that the Pacific Gas and Electric Company (PG&E) conduct a seismic reevaluation, thus assuring that the seismic design of Diablo Canyon will be subject to continued scrutiny.

Finally, the Joint Intervenors allege that the Appeal Board's decision in ALAB-811, approving the adequacy of design of Unit 2, is not based on substantial evidence and thus the Comission can have no reasonable assurance that Unit 2's design is consistent with Commission regulations. The scope of the Unit 2 verification program had been placed on the record at the hearings leading to the Board's decision in ALAB-763, 19 NRC 571 (1984). The results of that program, however, were not addressed because it was yet ongoing at that time. In ALAB-811, the Board rejected the Joint Intervenors' position that this reason alone necessitated further hearings. In addition to the evidence on the scope

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of the Unit 2 verification program, the record contained detailed evidence of the extent and the results of the Unit I verification program. Thus there was sufficient evidence in the record to make findings as to the adequacy of the design of Unit 2 given the virtual identity of design of the two units.

In sum, the Joint Intervenors have not established that they are likely to demonstrate a lack of reasonable assurance that the seismic design is adequate. With respect to the other factors of the . ay criteria, Joint Intervenors assert that they will suffer irreparable injury because they are put at risk by full power operation and because it may become more difficult or more costly to adopt any necessary modifications to the plant. Mere exposure to risk, however, does not constitute irreparable injury if the risk, as here, is so low as to be remote and speculative and any difficulty or expense in adopting necessary modifications is not an injury to Joint Intervenors.

Moreover, the harm to others posed by even a short delay in permitting operation of a fully constructed and tested nuclear power plant is not ,

dee minimis in terms of its economic effect on the licensee and its ratepayers. The Commission has determined that there is reasonable assurance that the activities authorized by the operating license can be conducted without endangering the health and safety of the public, and that such activities will be conducted in compliance with Commission regulations and the license. In these circumstances, the public interest lies in the use of this plant and in the orderly functioning of the regulatory process. Accordingly, the request for a stay is denied.

6 Allegations Since 1983, the Conuission has received numerous allegations regarding alleged deficiencies in the design, construction and operation of both units of the Diablo Canyon facility and the licensee's management of those activities. All allegations have been handled by the Diablo Canyon Allegation Management Program ("DCAMP") which is described in Supplements 21 and 22 to the Safety Evaluation Report

("SSER" 21 and 22). See, CLI 84-13,20NRC267at273(1984). The status of allegation resolution as of July 8,1984 was reviewed in SSER 26 and considered by the Commission prior to its authorizing the issuance of a full-power operating license for Diablo Canyon, Unit 1.

20 NRC at 273-74.

Since then DCAMP has made substantial additional progress in resolving allegations. In SSER 28, the staff reported on the status of allegations received through March 1,1985 and discussed the staff's review of these allegations through March 31, 1985.4 The staff's preliminary (" screening") review of all of those allegations indicated that none of them is of sufficient safety significance to preclude the continued operatfor, of Diablo Canyon, Unit 1 or the full-power operation of Diablo Canyon, Unit 2. The staff has evaluated the allegations in sufficient detail to determine that even if they ultimately prove 4

DCAMP has been modified to include the referral of some allegations to PG&E for resolution. The staff's allegation Review Board reviewed PG8E's responses and has audited PG&E's resolutions. They were found to be adequate. SSER 28 at 3-1.

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t correct, failure to resolve them would not significantly affect public health and safety. SSER 28 at 4-1.5 Since making that report, the staff, at the Commission meeting of August 1, 1985, has updated the status of the resolution of pending allegations and reaffirmed its previous conclusions. Under these circumstances, the Commission finds no reason to defer full-power operation of Diablo Canyon, Unit 2 pending the formal resolution of the remaining outstanding allegations.

Internal Review Program PG&E initiated an Internal Review Program-(IRP) for Diablo Canyon, Unit 2 to datermine whether concerns raised regarding Diablo Canyon, Unit 1 were applicable to Unit 2 and whether the concerns identified as being applicable to Unit 2 were resolved adequately. These concerns included all matters considered by the Independent Design Verification Program ("IDVP"), the PG&E Internal Technical Program ("ITP") and issues raised by the NRC staff for Unit 1. The NRC staff has evaluated the programmatic and technical aspects of the IRP. In addition,the staff has independently audited and evaluated the seismic design of certain civil structures and systems for Diablo Canyon, Unit 2.

The staff reported the results of these evaluations in SSER 29.

All but two items were found to have been satisfac'torily completed for 5

0f the 1665 allegations reviewed, 1407 were found applicable to  ;

Unit 2. Of those, 1147 have been found resolved. Additional allegations submitted by letter dated March 14, 1985 are currently being screened in accordance with the criteria set out in the Commission's Policy Statement of March 19, 1985. 50 Fed. Reg. 11030.

8 full power operation. Those two items, analysis of the shear friction along a construction joint in the turbine building and the seismic analysis of the pipeway have now been completed satisfactorily.

Piping Sysams and Pipe Supports The NRC has conducted a broad based technical review and evaluation of the design and analysis of piping systems in Diablo Canyon, Unit 2.

The review was conducted by a special Review Team composed of members of the NRC staff and consultants from national laboratories and private companies. The purpose of this effort was: (1) to determine whether safety related piping and supports in Unit 2 had been properly evaluated and; (2) whether the piping and support issues raised by Unit 1 found applicable to Unit 2 had been considered and resolved.

The NRC staff has reported the results of the review and evaluation in SSER 30. Some concerns were identified during the evaluation. All have been resolved or been determined not to be of safety significance.

The Review Team detennined that issues which pertained to Unit 1 piping and pipe supports and were applicable to Unit 2 have been satisfactorily addressed and resolved for Unit 2. Based on this evaluation, the staff has concluded that Unit 2 meets all applicable licensing criteria in this area.

Miscellaneous Matters In addition to the specific issues discussed above, the NRC staff has addressed in SSER 31 twenty-one items or classes of items which were pertinent to the low pcwer licensing decision on Diablo Canyon, Unit 2.

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As a result of that review, the staff identified eleven items or classes of items requiring further action prior to a full-power operating license for Unit 2. The staff now has reported that all of these items have been addressed satisfactorily for the purposes of full-power operation.

Operating Experience The staff has reported that Diablo Canyon, Unit 2 for the first two months of operation at low-power had a more favorable operating record than any other recently licensed plant operated at low power. In 4 particular, there were no events reportable under 10 CFR 50.72 nor was any Licensee Event Report ("LER") issued. This is to be compared with an average of 8 reports under 10 CFR 50.72 and 7 LERs for seven recently licensed pressurized water reactors. In the last month, only two minor reportable events occurred. While this may be explained, in part, by the fact that Unit 2 did not reach criticality during this period, and some improvement in attention to detail may be warranted, the experience to date is still excellent.

Conclusion For the reasons set out above, the Commission has determined that the full power license for Diablo Canyon Unit 2 may be issued by the Director, NRR. Joint Intervenors have requested a brief stay of the effectiveness of this Order to permit the orderly processing of a request for judicial review. However, PG&E has informed us by letter of

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10 July 26, 1985, that the low power test program will not be completed until August 16, 1985. Thus, there :s no need for a stay in order to assure orderly judicial review, and, accordingly, we decline to stay the effectiveness of this licensing decision.

It is so ORDERED.

1 c#" "'Dg For the Comm ion on-

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SAMUEL J. CHILK p % (* .y%d;' ..i# ((2

• Secretary of th,e Comission

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• 4 Dated at Washington, D.C.

this 1st day of August, 1985.

SEPARATE VIEWS OF COMMISSIONER ASSELSTINE j I dissent from this Order. I would not grant PG&E a license to operate Diablo Canyon Unit 2. My reasons for voting against issuance of the license are the same reasons I voted against the issuance of an operating license for Diablo Canyon Unit 1. Those reasons have been set out in detail in CLI-84-12 and CLI-84-13 so I will not repeat them here.

See, Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-12, 20 NRC 249 (1984); CLI-84-13, 20 NRC 267(1984).

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