ML20070G635

Brief Opposing Util & NRC 821108 Briefs Supporting Exceptions to ASLB Requirement That NRC Receive FEMA Finding of Adequacy of State of CA Radiological Emergency Response Plan Before Plant Can Be Licensed.W/Certificate of Svc

ML20070G635
Person / Time
Site:	Diablo Canyon
Issue date:	12/20/1982
From:	Brown H CALIFORNIA, STATE OF, KIRKPATRICK & LOCKHART
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8212220394
Download: ML20070G635 (9)

Text

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. 4 00tJET,ED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOA

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In the Matter of )

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PACIFIC GAS AND ELECTRIC COMPANY )

} Docket Nos. 50-275 0.L.

(Diablo Canyon Nuclear Power Plant, ) 50-323 O.L.

Units 1 and 2) )

) (Full Power Proceeding)

BRIEF OF GOVERNOR DROWN IN REPLY TO PG&E AND NRC STAFF BRIEFS IN SUPPORT OF EXCEPTIONS In Briefs filed November 8, 1982, Pacific Gas & Electric Company (PG&E) and the NRC Staff took exception to the Licensing Board's requirement that, before the Diablo Canyon Plant can be licensed to operate, the NRC receive from the Federal Emergency Management Agency (FEMA) findings and determinations on the adequacy of the State of California radiological emergency response plan. Both PG&E and the Staff argue that such FEMA findings and determinations are not required as a precondition to the NRC's o

issuance of an operating license for Diablo Canyon. For the reasons set forth below, the arguments of PG&E and the Staff should be rejected.

The NRC's Regulations require FEMA's " findings and determina-tions as to whether State and local emergency plans are adequate and capable of being implemented." 10 C.F.R. S50.47 (a) (2) . The 8212220394 821220 PDR ADOCK 05000275 g PDR qQ

reason such FEMA findings and determinations are required is that under Executive Order 12148 and the NRC-FEMA Memorandum of Understanding, dated November 3, 1980, FEMA is the lead agency for reviewing State and local emergency plans. Under NRC Regulations, FEMA's findings and determinations are indispensable, because "[t]he NRC will base its findings on a review of the Federal Emergency Management Agency's findings and determina- .

J tions . . . (Emphasis added.) 10 C.F.R. S50.47 (a) (2) . Therefore, the Regulations conclude that unless the NRC obtains FEMA's findings and determinations on the adequacy of the State emergency plan, "no operating license for [Diablo Canyon] will be issued . . .

10 C.F.R. S50.47 (a) (1) .

The Governor submits that the plain language of Section 50.47(a) is dispositive of the PG&E and Staff exception. The Licensing Board properly required the NRC to obtain FEMA's findings and determinations prior to licensing Diablo Canyon. This l

Appeal Board should affirm that decision and, in accordance with l the Governor's Brief in Support of Exceptions filed November 8, 1982 and the explicit language of Section 50.47 (a) (2) , require 1

that the FEMA findings and determinations be brought before the Licensing Board and parties as a " rebuttable presumption." Any other action would be contrary to the clear meaning of the NRC's Regulations.

The Staff and PG&E Request Licensing Action That Would Violate The NRC's Regulations PG&E and the Staff propose. tortured interpretations of the NRC's Regulations that, in effect, would eliminate Section 50.47 (a) .

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. r l-The only correct interpretation of Section 50,,47(a) o is.F to accept the words for their clear meaningr nunely, the NRC m%et obtain

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'f FEMA's findings ;and determinations on the State emergency plan before Diablo Canyon can be licensed. For the St. ate [of California, this requirement is critical.- It is FEMA tGIwhiciT the State looks to assure <both the adequacy of the, State plan and thk, .

capability of implementing the State plan in conjunct [ ion Ath the local plans. As a practical matter, therefore, any NRC i

action which would eliminate FEMA's f4udings and determinations J

\ , .: e on the State emergency plan from,the licens3rg process would .,

also undercut the overriding need'to assure that offsite epergency, response is workable and cap r61ep# of .peing integrated wit,h; the -

required onsite responye.,.

The following addr/sses eac!:,.of the arguments put fort'h y by PG&E and the Staff to supp, ort lelimination of the requirement in Section 50.47(a) for FF.MA' findings and determinations on the State emergency plan:

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The Staff admits that."the'FEMi dindings in this case do not'

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refer explicitly to the State' plan and thus do not codtain c,L, .

, i finding of ade'uacy q on the ' State' plan pei se . . .

(Staff Brief, e

p. 19). Nevertheless, the' Staff'goes on to fashion a tortured argument that there is no rcqdirranent for FEMA's findings and I

determinations. (Staff Brief, p. 19). Thus, the Staff argues in essence that the, absence # of FEMA findings and det.erminations really'means the prlasenca of FEMA findings and determinations. ,

The Staff cr5ates,this retamorphasis by its p;roposed notion of E

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" constructive" FEMA findings.

The. Staff offers no legal authority for its far-fetched proposal; only the following conclusory worda:

[T]he record in this proceeding compels the conclusion that FEMA has in effect made a " constructive" finding of adequacy on the State plan since FEMA has considered and evaluated to the extent neces-sary the emergency preparedness responsibilities of the State of California given its limited role of offsite preparedness at Diablo Canyon. (Staff Brief, p. 19).

Emergency preparedness at Diablo Canyon is a serious matter for the public, for local governments, for the State, and for PG&E. The strained logic of the Staff does little more than make light of that serious matter. The Staff's proposal for ,

FEMA's participation in this proceeding through some form of l

" constructive" presence should be rejected as misguided, if not 1 j

ludicrous.

2. PG&E's argument that Section 109 of the daC's 1980 Authorization Act eliminates the need for FEMA findings and determinations on the State plan is unsound. The issue before this Appeal Board is not reached by Section 109. Rather, the 1

issue here is whether the failure of the Staff and FEMA to perform their required offsite emergency preparedness review functions should be ignored. The record does not disclose why FEMA has not performed its review of the State plan. There is no reason, in fact or law, to excuse FEMA from exercising its

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l responsibility. Surely, the public safety should no.t be compromised because FEMA and the Staff have not done what their own regulations and Memorandum of Understanding require. !

3. PG&E's argument that Section 50.47 (c) (1) eliminates the need for FEMA findings and determinations on the State plan is unsound. Section 50.47(c) (1) permits the applicant to demonstrate that specific deficiencies in the applicant's compliance with the planning standards of Section 50.47(b) are not significant under the particular facts at hand. Section 50.47 (c) (1) , however,

, does not permit the elimination of FEMA's findings and determina-tions from Section 50.47 (a) . Indeed, Section 50.47(a) is I

predicated upon FEMA's participation in the NRC offsite emergency planning review process.

! 4. The thrust of the position shared by PG&E and the Staff is to turn back the clock to the era preceding the Three Mile Island accident. At that time, there was no Section 50.47, no NRC-FEMA Memorandum of Understanding, and no requirement for FEMA findings and determinations.

Today, the NRC can license a plant only if FEMA makes the findings and determinations required by Section 50.47 (a) . The

• / The Staff's suggestion, at p. 12 of its Brief, that the State's conduct in emergency planning is unsatisfactory is both unfounded and uncalled-for. If the Staff has pertinent information on the relationship between FEMA and the State, the Staff should bring it before the Board and parties.

Nothing in the record of this proceeding justifies the .

Staff's suggestion.

Licensing Board accepted the evidentiary record for what it says: FEMA has made no such findings and determinations. The Licensing Board then applied Section 50.47(a) in the only permissible way: FEMA's failure to make the required findings and determinations prevents the NRC from issuing an operating license for Diablo Canyon. The Governor submits that this straightforward approach of the Licensing Board should be affirmed.

Respectfully submitted, Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacraranto, California 95814 r . .

Herbert H. Brown Lawrence Coe Lanpher KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

Washington, D.C. 20036 Attorneys for Governor Edmund G. Brown Jr.,

Representing the State of December 20, 1982 California l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the "BRIEF OF GOVERNOR.

BROWN IN REPLY TO PG&E AND NRC STAFF BRIEFS IN SUPPORT OF E::CEPTIONS" have been served to the following by U.S.. Mail, first class, this 20th day of December, 1982.

Mr. Thomas Moore, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. W. Reed Johnson Atonic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. John H. Buck Atomic Safety and Licensing Appeal' Board .

.U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairnan Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Wa shing t.on , D. C. 20555 Judge John F. Wolf, Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555

e Judge Glenn O. Bright Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Judge Jerry R. Kline Atomic Safety and Licensing Board Panel U. S. Nuclear Regule. tory Commission Washington, D, C. 20555 George E. Johnson, Esq.

Donald F. Hassell, Esq.

Office of Executive Legal Director BETH 042 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ATTENTION: Docketino and Service Section -

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Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, CA 93401 Janice E. Kerr, Esq.

Public UtilxLAes Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

4623 More Mesa Drive Santa Barbara, CA 93105 -

Mr. Gordon Silver -

Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, CA 93401 Joel R. Reynolds, Esq.

John Phillips, 'Esq.

Center for Law in the Public Interest 10951 West Pico Boulevard Third Floor Los Angeles, CA 90064 Bruce Norton, Esq. .

Norton, Burke, Berry & Junck 3216 North Third Street - Suite 300 Phoenix, Arizona 85012 Philip A. Crane, Jr., Esq.

Richard F. Locke, Esq.

F. Ronald Laupheimer, Esq.

Pacific Gas and Electric Company 1050 17th Street, N.W.

Suite 1180 Washington, D. C. 20036 David S. Fleischaker, Esq.

P.O. Box 1178 Oklahoma City, Oklahoma 73101 Arthur C. Gehr, Esq.

Snell & Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 ,

Mr. Richard B. Hubb'ard MHB Technical Associates '

1723 Hamilton Avenue - Suite K San Jose, CA 95125 Mr. Carl Neiberder Telegram Tribune P. O. Box 112 San Luis Obispo, CA 93402 Byron S. Georgiou, Esq.

Legal Affairs Secretary Governor's Office State Capitol Sacramento, CA 95814 N.

December 20, 1982

. . KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

Washington, D. C. 20036

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