ML20098G544

Answer Opposing Joint Intervenors 840917 Petition for Review of ALAB-781.Petition Does Not Raise New Points of Law. Certificate of Svc Encl

ML20098G544
Person / Time
Site:	Diablo Canyon
Issue date:	10/02/1984
From:	Lubbock D PACIFIC GAS & ELECTRIC CO.
To:
References
CON-#484-265 ALAB-781, OL, NUDOCS 8410050118
Download: ML20098G544 (16)

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_ UNITED -STATES OF AMERICA '84 0CT -4 A10:46 h'

" NUCLEAR REGULATORY' COMMISSION 0 fille s :t Du .r..

E9Vis i BEFORE THE COMMISSION 00CXElff

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-In the Matter of )

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' PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 COMPANY ) 50-323 g{

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(Diablo Canyon Nuclear Power )

Plant, Units l'and 2) )

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, ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY TO PETITION FOR REVIEW OF ALAB-781 I

INTRODUCTION On September 17, -1984, the Joint Intervenors filed, pursuant to 10 CFR 2.786, a petition for review of ALAB-781, NRC -(September 6, 1984). In that decision, the Atomic Safety and Licensing Appeal Board 2

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(" Appeal Board") affirmed the decision of the Atomic Safety 1

Licensing Board (" Licensing Board") authorizing issuance of a full power license for the Diablo Canyon Nuclear Power Plant,' Unit 1.

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For the reasons set forth below, Pacific Gas and Electric Company ("PGandE") respectfully submits the petition for review should be denied.

II BACKGROUND In January 1982, the Licensing Board held hearings on PGandE's application for a full power operating license for Diablo Canyon Nuclear Power Plant, Units l'and 2. The iesues litigated in that proceeding concerned: (1) the adequacy of emergency planning for Diablo Canyon and (2) the adequacy of the design, construction, and testing of the power operated relief valves (PORVs) at'Diablo Canyon. On August 31, 1982, the Licensing Board issued its decision authorizing the Director of NRR to issue a full power license subject to certain conditions and the Commission's -

, determination and order. lj Challenges by PGandE and the NRC Staff ~to certain of the Licensing Board's conditions were. resolved by the Appeal Board in ALAB-776, 19 NRC (June 29, 1984).

On September 6, 1984, the Appeal Board issued ALAB-781 affirming the Licensing . Board's finding that the emergency response planning for Diablo Canyon was adequate.

The Appeal Board also found ' that certain other exceptions taken by Joint Intervenors were either moot or had been resolved in other proceedings.

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r III DISCUSSION While recognizing that the Commission has the ultimate discretion to review any decision of its boards, a petition for Commission review is ordinarily not granted

-unless important safety, procedural, common defense, antitrust, or public policy issues are involved. 10 CFR

$ 2.785(b)(4). PGandE has reviewed the issues which have been raised and believes that when compared against the standards set forth in 10 CFR 2.786 they do not command the exercise of the' Commission's discretion to grant the spetition, i.e., important questions of fact, law, or policy are not presented.

Joint Intervenors have petitioned this Commission for review of ALAB-781. In doing so, they press the principle of exhaustion of administrative remedies to the limit. As is evident on review of the petition, they seek to relitigate that which has been already decided in the face of the legal doctrine of res judicata. The policy considerations which underlie this doctrine -- finality to litigation, prevention of needless litigation, avoidance of unnecessary burdens of time and expense -- are relevant to the administrative process. Painters Dist. Comn. No. 38,

'Etc. v. Edgewood Contracting Ccf, 416 F2d. 1081, 1084 (1969). Licensee submits that the Joint Intervenors have refused to accept the principle of finality and have made no

e attempt'to present valid grounds for review as required by 10 CFR 2.786.

A. ~ Earthquake and' Emergency Planning

1. The Joint Intervenors argue that the Appeal Board erred in stating that it did not have jurisdiction to once again consider the matter of the effects of earthquakes on emergency planning. Once the Commission has declined to review a decision of the Appeal Board a final agency determination has been made and the Appeal Board has no jurisdiction to reentertain an issue. Metropolitan Edison Q. -(Three Mile Island Nuclear Station, Unit No. 1),

ALAB-766, 19 NRC 981-983 (1984). In ALAB-728, 17 NRC 777 (1983), the Appeal Board determined that specific consideration of the impacts of earthquakes on emergency planning was not required. In declining to review ALAB-728, this Commission reserved the issue of earthquakes on emergency planning for decision. However, this Commission then specifically declined. to require consideration of the impacts on emergency planning of earthquakes which cause of occur 'during an accidential release in its decision CLI-84-12, 20 NRC , (slip opinion at 1)

(1984). Having done so, the decision of the Appeal Board was final as to the issue, and the Appeal Board had no jurisdiction to again consider the matter Metropolitan Edison Q. (Three Mile Island Nuclear Station, Unit No. 1),

supra, ALAB-766, NRC 981-983 (1984). The principle of res

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l judicata bars reconsideration ' and no review of the matter is warranted. Commissioner v. Sunnen, 333 U.S. 591, 597 (1948).

B. -Class Nine Accidents The issue before the Commission regarding Class 9 accidents is whether reconsideration in this case may be entertained.

In ALAB-728, the-issue of Class-9 accidents was litigated before the Appeal Board and determined against Joint Intervenors. That decision became the law of the case and the principles of res judicata and collateral estoppel bar Joint Intervenors from again raising the same issue.

The principles of res judicata and collateral estoppel have long been applied in operating license proceedings. Alabama Power Co. (Joseph M. Farley Nuclear Plant,. Units 1 and 2) ALAB-182, 7 AEC 210, modified on other grounds CLI 74-12, 7 AEC 203 (1974). "Those who.have contested an issue shall be bound by the result, the contest, and matters once tried shall be considered forever settled as between the parties." Commissioner v. Sunnen, supra, 333.U.S. 591, 597 (1948). Furthermore, a party who

'is given an opportunity to present his case before competent judicial authority must put forth his case in toto, rather than advance it piecemeal in multiple proceedings.

. Cromwell v. . County of Sac. 94 U.S. 351, 358 (1877). The-earlier adjudication is deemed to bar parties and those in 1

2 privity "not only as ' to every matter:which was offered and l received to. sustain or defeat the claim or demand, but as-to

. ang -other admissible matter wh'ich might have been offered for that purpose." '(Emphasis added) Ibid at 352.

L - The fact that the Hosgri fault existed in the vicinity of. the Diablo Canyon Nuclear Power Plant is not 'new r evidence or materially changed circumstances. In fact, the

! plant underwent. complete seismic reanalysis for the affect 1 -

of : that .. fault which was the subject of extensive hearings.

Given such, the Hosgri fault does not constitute materially

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changed circumstances -which would defeat the application of the'bar.of res judicata or collateral estoppel. 2f Alabama Power CompanyJ(Joseph M..Farley Nuclear Plant' Units 1'and 2) supra, 7 AEC 210, 219.

.C. FEMA Findings on Off-site Plans LicenseeLpreviously. filed-its response on July 27, te 1984'to Joint.Intervenors' Petition for Review of ALAB-776

, ' regarding the : adequacy of FEMA findings on offsite plans and p 2/' Joint ~ Intervenors have attributed the Appeal Board's decision to an implied - conclusion that the contention regarding "special. circumstances" ~ was insufficiently.

raised when in fact Joint Intervenors claimed they have raised it on numerous occasions. Either way they are

. - barred by the application of the doctrine of res judi-

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- cata. If Joint Intervenors mean that they raised the issue originally in the proceeding -at or before the decision of the Appeals ' Board in ALAB-728, they ' most certainly are barred. If they- -.first raised it after ALAB-728 was final, they still are barred because they h could have raised the matter of special circumstance at the time,of the hearing leading to that decision, which they did-not.

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incorporates such response by reference. FEMA has made interim findings that the state and local plans are adequate. Where reasonable assurance has been found by a Board that adequate protective measures can and will be taken in.the' event of a radiological emergency, interim FEMA findings are sufficient to satisfy the requirements of law Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3). ALAB-717, 17 NRC 346,

-380 (1983). Cincinnati Gas and Electric C_o. (Wm. H. Zimmer Nuclear Power Station, Unit No. 1) ALAB-727, 17 NRC 760, 775 (1983). Detroit Edison Co. (Enrico Fermi Atomic Power

. Plant, Unit 2), ALAB-730, 17 NRC 1057, 1066 (1983). The issue as to the adequacy of interim FEMA findings was also previously determined against Joint Intervenors in ALAB-776 and is also barred under the principle of res judicata.

D. Emergency Planning Zones Joint Intervenors have petitioned for review on the grounds that this Commission should adopt the zones established by the State of California for the purpose of determining whether a license should have been issued. They imply that section 274 of the Atomic Energy Act dictates acquiescence to state zones and argue that the Appeal Board's determination based on the fundamental constitutional principle of preemption is erroneous.

Section 274 of the Atomic Energy Act does not require this Commission to defer to state regulation. To the contrary,

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that 'section . '.is emphatic that ~ all authority for the regulation of_ nuclear power plants resides in the Commicsion and' that1 authority may not be de. legated. 42 U.S.C.

$12021(c).

Con'trary to the proposition advanced by Joint Intervenors, the Appeal Board correctly refused to adopt the state emergency planning zones (EPZs). Even if the EPZs were . adopted out of non-safety concerns, which it is difficult to argue they were, they would directly conflict

. iw th :-i th s Commission's exclusive authority' over nuclear power plant construction and . operation. The federal government has occupied the entire field of nuclear safety concerns.regarding the construction and operation of nuclear powerplants. Pacific ~ Gas and Electric - Company v. State Energy Resources Conservation & Development ~ Commission U.S. , 103 S.Ct. 1713, 1726-27 (1983). Having done so,. the test of preemption is whether "the matter on which

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the state -asserts a right to act is in any way regulated by the federal government." Rice v. Santa Fe_ Elevator Corp.

331:U.S. 218, 236, 67 S.Ct. 1146, 1155, 91 led 1447-(1947).

The. utilization of state EPZs for these licensing proceedings clearly falls within the prohibited field.

Notwithstanding the-above, even if the state EPZs were required to be utilized, the failure to do so was harmless ' error. 'As pointed out by the Appeal Board, the

- Licensing Board took evidence on the status of planning in 1

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- + the - state zones beyond the areas set forth in -10 CFR 50.47(c)(2) and found that beyond the federal zones there

. was- reasonable assurance that- the . planning would be sufficient to . permit appropriate integration prior to full

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- power operation. Error in a ' Licensing Board finding that does not effect or impair the' Board's ultimate conclusion is harmless and gives ; no cause' for reversal. Public Service Electric . and Gas Company et al (Salem Nuclear Generating Station, Unit 1) ALAB- 650.14 NRC 43', 45 (1981).

, E. Off-Site Emergency Planning

- The' Joint Intervenors have requested' review of the

Appeal Board affirmance of the Licensing Board's decision as-to theH adequacy of off-site emergency planning on little

, more.than a statement to the effect that the Boards did not.

agree:with.their evidence.

1 While Joint Intervenors claim that the off-site plans are . inadequate', those plans.nonetheless have become the . official plans of the state and local government.

1 Section 8610.5 of the Government' Code of the State' ' of -

. California, of which this commim a mcy take ' official notice, provides in part that, " sk fier the state plan nor-any . local plan 'shall / become effective or be implemented

,until approved by the Office of Emergency- Services of this Estate ' or the ~ Federal .EmergencyJ Management Agenc_y."

- c J(Emphasis added). 'Since interim findings of FEMA han been -

- made withIrespect to both state and local off-site plans,

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the. plans, even.under state law,~have-become effective. In addition, - the local plan has .been approved by the Office of -

. Emergency-Services.-as required by state. law, the record of which .may' be . officially noticed by this Commission.

(Attachment'A). - See - Milwaukee Mechanics Insurance co_. v.

Oliver (C.CA Sth) 139 F.2d'~ 405, 407 (1944); U.S. v.

Manufac'turers Hanover Trust Co. (DC NY)'229 F.Supp. 544, 545

. (1964). . Federal Rules of Evidence' Rule 210 (b)(2).

While- Joint .Intervenors may' not be satisfied with the extent of off-site planning, it is clear that the federal . and state agencies with the responsibility for

- review ~and? approval are satisfied and that no grounds for review exist.

CONCLUSION Licensee respectfully submits that -the petition .

raises no new matters or points of law which would justify.

that this. Commission review the decision of the-Appeal Board 4

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d in ALAB-781. Accordingly, it is. requested that the petition be denied.

Respectfully submitted, ROBERT OHLBACH PHILIP A. CRANE, JR.

RICHARD F. LOCKE DAN G. LUBBOCK

' Pacific Gas and Electric Company P. O. Box-7442 San Francisco, CA 94120

, (415) 781-4211 A

ARTHUR C. GEHR Snell & Wilmer 3100 Valley Bank Center Phoenix,.AZ 85073 (602) 257-7288 BRUCE NORTON THOMAS A. SCARDUZIO, JR.

Norton, Burke, Berry & French, P.C.

P. O. Box 10569 Phoenix, AZ 85064 (602) 955-2446 Attorneys for Pacific Gas &nd Electric Company By

/ Dan G. Tu6 bock 4

DATED:- October 2, 1984.

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. STAft of CAllfotNIA GEORGE DeUMM3JIAN, Ge.orner OFFICE OF EMERGENCY SERVICES POST OftlCE toX 95FF i SACRAMENTO, CALIPosNIA 99833 (916) 427-4990 September 10, 1984 Jerry Diefenderfer, Chairman Board of Supervisors County of San Luis Obispo County Government Center, Room 370 San Luis Obispo, CA 93408 Dear Chairman Diefenderfers Pursuant to Senate Bill 1473 The State Office of Paergency Services has reviewed the San Luis Obispo County Nuclear Power Plant Emergency Respons. ' Plan and Procedures dated January, 1984 (Rev. 2).

Planning criteria identified in NUREG-0654, FEMA Rep.1. " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" have been adopted in California and were used as the basis for the review.

I Although not all planning criteria have been met, it is the I opinion of this office that the pla- and procedures, in total, are adequate to protec't public health and safety. Unnet planning criteria are identified as an attachment. This office expects these items to be resolved in the annual plan update.

%is finding of adequacy constitutes acceptance of the plan as required in SB 1473. It is now considered operational and replaces all prior plans .nd drafts.

Pls.ese contact me or the staff of the Nuclear Power Plant Planning Section if you have questions relating to this issue.

Sincerel , \

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e ATTACHMENT A i

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- SAN LUIS 03ISPO COUNTY PLAN (Jcnuary 1984) 3-Items to be Resolved in Annual Update T

NUREG Criteria E.5. Procedures for notifying the public of a fast-moving accident are unclear. The watch commander has the responsibility to follow the recommendation of the plant, but must he first get authorization from the ESD or designate? The autonomy of the watch cosmiander must be clearly stated.

E.5. Plan should be amended to reflect use of aircraft for alerting at Montana de Oro State Park.

G.2. State regulations require dissemination of public education materials in the Public Education Zone. Evidence of dissemination of these materials was not provided.

G.3.c. The plan identifes several roles for the Rumor Control Center: rumor control, receiving calls requesting transportation assistance, placing random calls to deter-

,( mine the completeness of evacuation, and receiving personal data on evacuees from the Red Cross. This is too much responsi-bility and may result in someone not receiving evacuation assistance. These responsibilities should be split up and assigned elsewhere.

G. Public Although procedures exist to assure -

Information in general. authorized, coordinated public information, during the exercises, the method of receiving authorization has taken too long. This must be streamlined.

J.10.d. Plan states city fire departments will assist in evacuation of inst'itutions. Fire department procedures do not identify how this will be done or what resources are to be used.

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NUREG Criteria J.10.f. The state is presently amending the KI policy. If SLO adopts the new policy, the plan will have to be amended accordingly.

K.3.a. SOP 5, Page 9 refers to essergency worker kits to be purchased. Are those kits in place?

K.5.b. Plan gives county engineer role of decon-

' taminating equipment. County engineer procedure does not mention the method or resources to be used for this.

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- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of- )

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'FACIFIC GAS AND ELECTRIC COMPANY ) Locket No. 50-275

) Docket No. 50-323 Diablo Canyon Nuclear Power Plant, )

Units 1 and 2 )

)

CERTIFICATE OF' SERVICE The foregoing. document (s) of Pacific Gas and Electric Company has (have).been served today on the following by deposit in the United States mail, properly stamped and addressed:

Judge John F. Wolf- Mrs. Sandra A. Silver Chairman- 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Washington DC 20555' Mr. Gordon Silver 1760 Alisal Street Judge Glenn O. Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board US Nuclear Regulatory Commissicn John Phillips,.Esq.

Wnshington DC 20555 Joel Reynolds, Euq.

Eric Havian Judge Jerry R. Kline Center for Law in the Public Interest' Atomic Safety and Licensing Board 10951 W. Pico Blvd. - Suite 300 US. Nuclear Regulatory. Commission Los Angeles CA 90064 Washington 'DC 20555 David F. Fleischaker,-Esq.

Mrs. Elizabeth Apfelberg P. O. Box 1178 c/o Betsy Umhoffer Oklahoma City OK 73101

-1493 Southwood

'Snn Luis Obispo CA 93401 Arthur C. Gehr, Esq.

4 Snell & Wilmer Jcnice E. Kerr, Esq. 3100 Valley Bank Center Public Utilities Commission Phoenix AZ 85073 State of California 5246 State Building Bruce Norton, Esq.

350 McAllister Street Norton, Burke, Berry & French, P.C.

Scn Francisco CA 94102 P. O. Box 10569 Phoenix AZ 85064

- Mrs. Raye Fleming 1920 Mattie Road Chairman Shell Beach CA 93449 Atomic Safety and Licensing Board Panel Mr.. Frederick Eissler US Nuclear Regulatory Commission

. Scenic Shoreline Preservation Washington DC 20555 Conference, Inc.

4623 More Mesa Drive

'SCnta Barbara CA 93105 l

Chairman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington DC 20555 US Nuclear Regulatory Commission Washington DC 20555 S cretary US-Nuclear Regulatory Commission Judge W. Reed Johnson W2shington DC 20555 Atomic Safety and Licencing Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 Lawrence J. Chandler, Esq. Commissioner Nunzio J. Palladino H;nry J. McGurren Chairman US Nuclear Regulatory Commission US Nuclear Regulatory Commission Office of Executive Legal Director 1717 H Street NW Washington DC 20555 Washington DC 20555 Mr. Richard B. Hubbard Commissioner Frederick M. Bernthal MHB Technical Associates US Nuclear Regulatory Commission 1723 Hamilton Avenue Suite K 1717 H Street NW Srn. Jose CA' 95125 Washington DC 20555 Mr. Carl Neiberger Commissioner Lando W. Zech, Jr.

Talegram Tribune US Nuclear Regulatory Commission P. O. Box 112 1717 H Street NW Stn Luis Obispo. CA 93402 Washington DC 20555 Michael J. Strumwasser, Esq. Commissioner James K. Asselstine Susan L. Durbin, Esq. US Nuclear Regulatory Commission Pater H. . Kaufman, Esq. 1717 H Street NW 3580 Wilshire Blvd. Suite 800 Washington DC 20555 Los Angeles CA 900]O Commissioner Thomas M. Roberts US Nuclear Regulatory Commission 1717 H Street NW Washington DC 20555 S

/:: DAN G. LGBB'OCK Date: October 2, 1984

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