ML20140B607

Brief Supporting 810803 Exceptions to ASLB 810717 Partial Initial Decision.Exhibits & Certificate of Svc Encl

ML20140B607
Person / Time
Site:	Diablo Canyon
Issue date:	09/02/1981
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 8109140261
Download: ML20140B607 (200)

Text

t s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL 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) ) (Low Power Test

) Proceeding)

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JOINT INTERVENORS' BRIEF 05 '-

IN SUPPORT OF EXCEPTIONS -

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JOEL R. REYNOLDS, ESQ.

N_ JOHN R. PHILLIPS, ESQ.

q f([d N Center for Law in the Public Interest

( q\ n p(g 10203 Santa Monica Boulevard

,f ~ FJ.o a Los Ange1es, CA 90067 T x-, 1 11931"c

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pas [3 DAVID S. FLEISCHAKER r, u.5.t*gessai 1735 Eye Street, N.W.

4 Washington, D.C. 20006 Q

Attorneys for Joint Intervenors SAN LUIS OBISPO MOTHERS FOP "' ACE SCENIC SHORELINE PRESEP.VATIOd CONFERENCE, INC.

ECOT 'GY ACTION CLUB SANDRA SILVER GORDON SILVER ELIZABETH APPELBERG JOHN J. FORSTER 8109140261 810902 h g i

DR ADOCK 05000P75 g PDR

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TABLE OF CONTENTS PR TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii I. IN'.dODUCTION . . . . . . . . . . . . . . . . . . . .. 1 II. GENERAL HISTORY OF THE LOW POWER TEST PROCEEDING. . . . . . . . . . . . . . . . . 4 III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . '9

, A. Introductory Statement . . . . . . . . . . . . . . 9 B. The Licensing Board Improperly Denied Joint Intervenors' Right to Be Heard Under the Administrative Procedure Act, the Atomic Energy Act, and the Commission's December 18, 1980 Revised Statement of Policy and April 1, 1981 Order in this Proceeding. . . . . . . . . . . . . . . . . . . . 13

1. The Commission's Revised Statement of Policy and, April 1 Order. . . . . . . . . . . . . . . . 14

2. Administrative Procedure Act. . . . . . . . . . . . . . . . . . . . . 25

3. Section 189 (a) of the Atomic Energy Act. . . . . . . . . . . . . 35 C. The Licensing Board Erred in Ruling that the State of Emergency "reparedness at Diablo Canyon Complies with the Commise:-"' Revised Emergency Planning Regulations. . . . . . . . . . 37

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1. The Licensing Board Improperly Ruled, in Effect, that the Commission's Revised Emergency Planning Regulations Do Not Apply to Low Power Operation . . . . . . . . . . . 39

2. The Licensing Board Impermissibly Relied on Generalized Estimates of Low Probability of Accidents in Justifying the Absence of Offsite Emergency Preparedness . . . . . . . . . . . . . . . . 46

3. The Licensing' Board Failed to Require that the Existing Diablo Canyon Emergency Plans Consider the Effects of an Earthquake . . . . . . . . . . . . . . . . . 53 D. The Licensing Board Erred in Failing to Require Compliance with the National Environmental Policy Act Prior to Authorizing Low Power Open tions. . . . . . . . . . . . . . . 56 E. The Licensing Board's Summary Disposition of Joint Intervenors' Contention Thirteen'Regarding Reactor Vessel Level Indication Was Arbitrary and Capricious. . . . . . . . . . . 60 F. The Licensing Board's Conclusion Regarding Relief and Safety Valve Testing Was Clearly Erroneous . . . . . . . . . . 63 IV. CONCLUSION . . . . . . . . . . . . . . . . .. . . . . 66 EXHIBITS 1

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b 9 s TABLE OF AUTHORITIES Page CASES Federal Court Cases American Bus Ass'n v. United States, 627 F.2d 525 (D.C. Cir. 1980) . . . . . . . . 26, 27, 30, 31 American Iron and Steel Institute v.

Environmental Protection Agency, 568 F.2d 284 (3rd Cir. 1977) . . . . . . . . . . . . . 25, 44 Brooks v. Atomic Energy Commission, 4' F.2d 924 (D.C. Cir. 1973). . . . . . . . . . . 35, 36, 37 P . ore 33, Inc. v. United States,

.J7 F.2d 695 (5th Cir. 1979) . . . . . . . . . . . . . 26, 28 Calvert Cliffs' Coordinating gommittee, Inc. v. United States I.tomic Energy Commission, 449 F.2d 1109 (D.C. Cir.

1979), cert. denied, 404 U.S. 942 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Cerro Metal Products v. Marshall, 467 F.Supp. 869 (E.D. Pa. 1979). . . . . . . . . . . . 25, 26, 45 i Citizens for Safe Power v. Nuclear Regulatory Commission, 524 F.2d 121 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . 33. 34 Chamber of Commerce of the United States

v. Occupational Safety and Health AdminiJtration, 636 F.2d 464, 1980 OSHD 524,396 (D.C. Cir. July 10, l 1980). . . . . . . . . . . . . . . . . 25, 26, 27, 28, 31, 44 l

Columbia Broadcasting System v. United States, 316 U.S. 407 (1942). . . . . . . . . . . . . . . . 28 Crown Zellerback Corp. v. Marshall, 441 F.Supp. 1110 (E.D. La 1977). . . . . . . . . . . . 25, 45 Dow Chemical, U.S.A. v. Consumer Product Satety ~ommission, 459 F.Supp. 378 (W.D. s 1978) . . . . . . . . . . . . . . . . . . 25, 44, 45 Humana of South Carolina v. Califano, 590 F.2d 1070 (D.C. Cir. 1978) . . . . . . . . . . . . . . 27 l -lii-l

Ex 2 ,

Page zaak Walton League of America v.

Schlesinger, 337 F.Supp. 287 (D.D.C. 1971). . . . . . . . . . . . . . . . . . . . . 58, 59 Joseph v. United States Civil Service Commission, 554 F.2d 1140 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . 25, 27, 44 Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2nd Cir. 1972) . . . . . . . . . . . . . . . . . 28 National Retired Teachers Ass'n v.

United States Postal Service, 430 F.Supp. 141 (D.D.C. 1977),

aff'd, 593 F.2d 1360 (D.C. Cir.

1979). . . . . . . . . . . . . . . . . . . . . . . ... 25, 45 Natural Resources Defense Council v.

United States Nuclear Regulatory Commission, 539 F.2d 824 (2nd Cir.

1976), vacated for reconsideration of mootness, 434 U.S. 1030 (1977). . . . . . . . . . . 58, 59 Pacific Gas and Electric Company v.

Federal Power Commission, 506 F.2d 33 (D.C. Cir. 1974) . . . . . . . . . . . 28, 29, 30, 31 Pickus v. U.S. Board of Parole, 507 F.2d 1107 (D.C. Clr. 1974) . . . . . . . . . . . . . . . . 30 Power Reac'or Development Co. v. Inter-nationai Union of Electrical, Radio and Macnine Workers, AFL-CIO, 367 U.S. 396 (1961). . . . . . . . . . . . . . . . . . . . . . 12 Regular Common C. cier Conference v.

i United States, 628 F.2d 248 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . . 36, 37 Union of Concerned Scientists v. U.S.

Nuclear Regulatory Cs,amission ,

No. 80-1962 (D.C. Cir. 1980) . . . . . . . . . . . . . . . 19 United States v. Daniels, 418 F.Supp.

1074 (D.S.D. 1976) . . . . . . . . . . . . . . . . . . 25, 45 United States Steel Corp. v. Environmental Protection Agency, 595 F.2d 207 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . 27

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f Page Vermont Yankee Nuclear Power Corporation

v. National Resources Defense Council, Inc., 435 U.S. 519 (1978) . . . . . . . . . . . . 57 Westinghouse Electric Corporation v.

U.S. Nuclear Regulatory Commission, 598 F.2d 759 (3rd Cir. 1979) . . . . . . . . . . . . . . . 36 Administrative Cases In the Matter of Consumer Power Co.

(Midland Plant , Units 1 and 2),

ALAB-315, NRCI-76-2, 103-4 . . . . . . . . . . . . . . . . 12 In the Matter of Maine Yankee Power Co., ALAB-161, 6 AEC 1003, aff'd, 7 AEC 2 (1974), aff'd sub nom, Citizens for Safe Power v. Nuclear Regulatory Commission, 524 F.2d 121 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . 33, 34 l

In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) Nos. 50-275, 50-323.

Partial Initial Decision, LBP-79-26, 9 NRC (September 27, 1979) . . . . . . . . . . . . . . 39 Order Granting Additional Time for Contentions Relative to Fuel Loading and Low Power Testing (October 24, 4

1980). . . . . . . . . . . . . . . . . . . . . . . . . . .

Order Relative to PGandE's Motion for Reconsideration of the October 24, 1980 Board Order (November 5, 1980). . . . . . . . . . . . 4 Order Denying Request for Directed Certification (December 22, 1980). . . . . . . . . . . . . 20 Prehearing Conference Order (February 13, 1981). . . . . . . . . . . 5, 6, 21, 22, 24, 28 32, 33, 34, 35, 37 ALAB- , NRC (April 1, 1981). . . . . . . . . . . . . . . . . . . . . . 6, 7, 11, 22 23, 24, 28

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Page Memorandum and Order Granting PGandE's and NRC Staff Motions for Summary Disposition of Joint Intervenors' Contentions 5 and 13 (April 30, 1981). . . . . . . . . . . . . . . . 60, 62, 63 Memorandum and Order Denying Motions for Reconsideration of Contention Thirteen (May 11,1961) . . . . . . . . . . 8, 60 Memorandum nd Order Denying .

Joint Intesvs .lors' "otion to Reopen Environmental Record for Consideration of Class Nile Accidents, NRC (Ju.:e 19, 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Partial Initial Decision (July 17, 1981). . . . . . . . . . . . . . . . . . . . . . . . . passim In the Matter of Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-422, 6 NRC 33 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . 55 In the Matter of Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3),

Nos. 50-361-OL, 50-362-OL, Order (Passing on the Board's Motion or Issue Concerning Earthquakes and Emergency Planning) (June 29, 1981). . . . . . . . . . 54, 55

.~n Re Statement of Policy: Further Commission Guidance on Power Reactor Operating Licenses, ALAB- , NRC (November 3, 1980). . . . . . . . . . . . . . . . . . . . . . . 10, 18, 19 In the Matter of Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, RAI-73-7, 520, 528-29 (1973) . . . . . . . . . . . . . . . . . . 12, 52

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I 3 Page STATUTES Administrative Procedure Act, 5 U.S.C. SS552 et seg. . . . . . . . . . . . . 2, 13, 14, 15 25-34, 44 Atomic Energy Act of 1954, 42 U.S.C. SS20ll et seg. . . . . . . . . 2, 12, 13, 14, 35-37, 46, 52, 57, 58 National Environmental Policy Act, 42 U.S.C. SS4321 et seg. . . . . . . . . . . . 2, 56-60 REGULATIONS 10 C.F.R. Part 50, Appendix E . . . . . . . . . . . . . . 2, 38-46 10 C.F.n. S51.5 . . . . . . . . . .. . . . . . . . . . 57, 58, 59 10 C.F.R. 550.47. . . . . . . . . . . . . . . . . . . 2, 38-46, 54 40 C.F.R. S1508.18 (b) (4) . . . . . . . . . . . . . . . . . . . . 57 MISCELLANEOUS

" Clarification of TMI Action Plan Requirements," NUREG-0737 (November 1980). . . . . . . . . . . . . . . 6, 9, 13, 14, 15, 1 20, 22, 27, 32, 33, l 34, 35, 37, 43

" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power PlacLs," NUREG-0 6 5 4, FEM A-REP -1, Rev . 1 (November 1980). . . . . . . . . . . . . . . . . . 41, 45, 49

" Emergency Planning: Final Regulations," Preamble, 45 Fed. Reg. 55402 (August 19, 1980). . . . . . . . . . . . . . . . 42, 43, 44 iii-l Lrw w r --r - wy v-e -,c e,- v, ,,-.---.wo.rw-.. ..--.,em---._,.y-,..m,-,_ ,,..7mmw--,,.-.,ewm,r,.,,_,-....-,,my,,,,,~.,y,_._,,,%,p . . , ,, , . _ . , , .,

" Final Regulations on Emergency Planning," 45 Fed. Reg. 55402 (August 19, 1980). . . . . . . . . . . .. . . . . 40, 41, 46 Letter, Staff Counsel to Licensing Board Re. Projected Completion Date for Valve Performance Testing (July 24, 1981). . . . . . . . . . . . . . . . . . 64 Letter, Tedesco to Furbush," Effects of Earthquakes on Diablo Canyon, Units 1 and 2 Emergency Plans" (December 16, 1980). . . . . . . . . . . . . . . . . . . . 54 Notice of Proposed Rulemaking,

" Emergency Planni'..g," Preamble, 44 Fed. Reg. 75164 (December 19, 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . 40 I "NRC Action Plan Developed as a Result of the TMI-2 Accident"

("TMI Action Plan") , NUREG-0660 (August 1980) . . . . . . . . . . . . . . 14, 15, 16, 27 NRC Board Notification Re Relief l'

and Safety Valve Performance Testing (July 16,1981) . . . . . . . . . . . . . . . . . . 63 Report of the President's Commission l on the Accident at Three Mile Island, "The Need for Change:

The Legacy of TMI" (Kemeny l Commission) (October 30, 1979) . . . . . . . . . . 10, 11, 47 1

4 l " Report to Congress on Status of Emergency Response Planning for

. Nuclear Power Plants," NUREG-

0755 (March 1981) . . . . . . . . . . . . . . . . . . . 47, 48 i Revised Statementof Policy

Further i Commission Guidance for Power i Reactor Operating Licenses, l CLI-80-42, 45 Fed. Reg. 85236 (December 18, 1980). . . . . . . . .2, 5, 11, 13, 19, 20, 21 24, 27 , 28, 32, 33, 34

, Statement of Interim Policy: Nuclear

! Power Plant Accident Considerations j Jnder the F 'ional Environmental Policy Act of 1969, 45 Fed. Reg. 40101 (June 13, 1980). . . . . . . . . . . . . . . . . 12, 56

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-. . . . . = - .

Page Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, 45 Fed. Reg. 41738

-(June 16, 1980). . . . . . . . . . . . . . 2, 11, 15, 16, 17 19, 20, 24, 27 "Three Mile Island: A Report to  ;

the Commissioners and to the Public" (Rogovin Commission)

(January 1980) . . . . . . . .. . . . . . . . 11, 49, 50, 51 "TMI-Related Requirements for New Operating Licenses,"

NUREG-0578 (July 1979) . . . . . . . . 15, 16, 18, 19, 20, 27 "TMI-2 Lessons Learned Task Force Status Report and Short-Term Recommendations," NUREG-0578 (July 1979) . . . . . . . . . . . . . . . . . . . . . 11 "TMI-2 Lessons Learned Task Force Final Report," NUREG-0585 (October 1979) . . . . . . . . . . . . . . . . . . . . 11, 47 I '

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f i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL EOARD

)

In the Matter of )

)

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

) 50-? O.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) ) (Low Power Test

) Proceeding)

)

JOINT INTER 7ENORS' BRIEF IN SUPPORT OF EXCEPTIONS I. INTRODUCTION Pacific Gas and Electric Company ("PGandE") is seeking a license to load fuel and conduct low power tests up to five percent of rated power at the Diablo Canyon Nuclear Power Plant

("Diablo Canyon") located on the California coastline about halfway between Los Angeles and San Francisco.1/ The outcome of this proceeding hinges on the resolction of a number of complex safety issues and novel legal and policy matters of first impression arising under varicus federal statutes, including the 1/ Diablo Canyon consists of two Westinghouse pressurized water reactors located on a 750 acre site in San Luis Obispo County, California. The units are designed to generate at steady state power levels of 3338 and 3411 cegawatts (MWe) thermal with a net total electrical output of approximately 2120 MWe, PGandE is seeking authorization to operate both units.

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Administrative Procedure Act, the Atomic Energy Act, and the National Environmental Policy Act; under the Commission's revised e'mergency planning regulations promulgated in the aftermath of the March 1979 Three Mile Island ( " TM I " ) accident; and under the Commission's various policy statements and orders providing guidance to NRC boards on litigation of TMI-related issues in individual licensing proceedings. Each of the issues raised herein arises out of, or relates to, the experience at TMI; as a result, this proceeding -- moreso than any other since the accident -- presents an opportunity to determine the true measure of the reforms instituted since its occurrence. Briefly stated, the icsues raised by this appeal include:

(1) whether Diablo Canyon will be licensed without allowing the partiec to this proceeding an opportunity to be heard, either through notice and comment under the Administrt.1ve Procedure Act or hearing under the Atomic Energy A.t, regarding critical safety issues arising out of the TMI accident; (2) whether Diablo Canyon will be licensed notwithstanding the fact conceded by all parties that the combined applicant, State, and local emergency response plans do not comply with even one of the sixteen mandatory planning standards contained in the Commission's emergency planning regulations, revised after the E4I accident and effective November 3, 1980; (3) whether Diablo Canyon will be licensed in reliance upon generalized estimates of the low probability of accidents, despite the virtual absence of

? . .

offsite emergency preparedness; (4) whether Diablo Canyon, which is located in an area of generally recognized significant seismic risk, will be licensed.despite the conceded failure of any of the emergency plans to consider or allow for the effect on emergency response capability of a radiological emergency initiated by or occurring simultaneously with a major earthquake near the site; and (5) whether, in the aftermath of the Class 9 accident at TMI and in disregard of the increased likelihood of such an accident in an area of high seismic risk, Diablo Canyon will be licensed without first requiring any consideration or analysis of the environmental effects ot a Class 9 accident.

The Atomic Safety and Licensing Board (" licensing board")

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answered each of these questions in tb? affirmative. In its Partial Initial Decision issued July 17, 1981, the licensing board approved PGandE's low power license application and authorized issuance of the requested license by the Director of Nuclear Reactor Regulation.S!

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2/ By order of the Commission, this authorization by the

licensing board becomes effective if and when the Appeal Board j issues a decision approving the Diablo Canyon physical security plan. As of September 1, 1981, no such decision has been rendered.

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On August 3, 1981, Joint Intervenors filed 166 exceptions to the Partial Initial Decision and other orders issued during the course of the low power test proceeding. This brief is filed in support of those exceptions.

II. GENERAL HISTORY OF THE LOW POWER TEST PROCEEDING On July 7, 1980, PGandE requested by letter to the NRC an authorization to conduct low power tests at the Diablo Canyon facility. Seven days later, on July 14, 1980, PGandE formally moved for the issuance of operating licenses to "(i) load fuel, (ii) proceed to initial criticality, (iii) perform startup testing at zero power, and (iv) . . . operate each such unit for testing at reactor core power levels not in excess of five percent of its rated power . . . ."3/

Pursuant to orders of the licensing board,S/ Joint Intervenors timely filed 27 contentions on December 3, 1980, the vast majority of which were derived from the accident at TMI, Unit 2, and various studies, reports, and investigations initiated during the months following the accident. A prehearing conference was held on January 28 and 29, 1981, at which the primary focus of i

3/ Motion of Applicant Pacific Gas and Electric Company for

' Licenses for Fuel Loading and Low Power Testing, at 1 (July 14, 1980).

l 4/ In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Order Granting Additional Time for Contentions Relative to Fuel Loading and Low Power Testing (October 24, 1980); Order Relative to PGandE's Motion for Reconsideration of the Ocober 24, 1980 Board Order (November 5, 1980).

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the discussion was the Commission's December 18, 1980 Revisad Statement of Policy 5 / and its application to Joint Intervenors' contentions. In light of the substantial disagreement between the parties as to the proper interpretation of the document, Joint Intervenors requested that the licensing board certify a clarifying question to the Commission. That request was opposed

-by both PGandE and the NRC Staff.5/

On February 13, 1981, the licensing board issued a Prehearing Conference Order in which it reviewed the various positions of the parties, discussed its own view of the Revised Policy Statement, and made several rulings-based upon that discussion. First, with respect to Joint Intervenors' request for certification to the Commission, the board concluded that

[i}n light of the provisions of the Revised Policy Statement discussed above, we have determined that a sufficient reason does not exist to certify this question to the Commission and we decline to certify.1/

Second, the board admitted five of J' int Intervenors' contentions, deferred decision on three, and rejected fifteen others.E/

5/ Revised Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, (" Revised Statement of Policy"), CLI-80-42, 12 NRC , 45 Fed. Reg. 85236 (December 18, 1980).

s/ Prehearing Conference Tr. at 338, 350.

1/ In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , Prehearing Conference Order, at 16 (February 13, 1981).

8/ Included among the TMI-related issues which Joint Intervenors sought to raise through the contentions denied by the licensing board were design and classification of pressurizer heaters; design and classification of relief, safety, and block valves; environmental qualification of safety-related equipment; systems interaction; documentation of deviations; and hydrogen gas control. See discussion infra at Point III.B.

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Although the board's rationale for datermining the admissibility or inadmissibility of a contention was scmewhat difficult to d'i s ce r n , the primary basis for denial in virtually every instance was, in essence, the board's finding that the contention had an insufficiently direct relationship to a specific requirement contained in NUREG-0737, " Clarification of TMI Action Plan Requirements." (November 1980).E/ Relying on its interpretation of the, Commission's Revised Statement of Policy, the board conc 1.uded that the majority of Joint Intervenors' contentions were inadmissible as a matter of law and, accorciagly, that as to those, no right to a hearing existed.1S/

On February 23 and February 26, 1981, requests for directed certification to the Conmission were filed by the NRC Staff and PGandE seeking clarification of the Revised Policy Statement and other action in light of the differing interpretations of the document by the parties and the board.

Joint Intervenors filed an extensive response on March 26, 1981.11/

Rather than granting the applications, however, the Commission issued an order in this proceeding on April 1, the purpose of which was to provide further guidance and explanation with respect to the litigation of TMI-related issues in individual licensing 9/ See Prehearing Conference Order, supra, at 13-14, 18-28.

10/ For further discussion of the February 13, 1981 Prehearing Conference Order, see Point III.B infra. Pursuant to 10 C.F.R. SS 50.51 and 50.52, objections were filed by Joint Intervenors on February 18.

11/ Joint Intervenors' Response to NRC Staff's February 23, 1961 Request for Directed Certification and Pacific Gas and ,

Electric Company's February 26, 1981 Request for Directed Certification (March 26, 1981).

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proceedings.12/ In contrast to the licensing board's prior ruling admitting only contentions "directly related to NUREG-0737 requirements,"13/ the Commission ruled that (1) for T4I-related contentions going beyond existing regulations they need only

" focus on the same safety concern that formed the basis for the NUREG requirement . . . . "1S/ Under such a standard --

significantly broader than that applied by the licensing board prior to this most recent Commission guidance -- reconsideration of Joint Intervenors' contentions previously rejected by the board was clearly warranted, and, on April 22, 1981, Joint Intervenors requested such relief. Notwithstanding the Commission's Order, however, the licensing board, by summary order dated April 30, 1981, rejected their request.15/

Motions for summary disposition of the admitted contentions were filed on April 1 by the NRC Staff and April 3 by PGandE. By order dated April 30, the licensing board granted i

l 12/ In the Matter of Pacif

• c Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , Order, NRC l (April 1, 1981) (hereinaf ter cited as " Commission Order")

(attached hereto as Exhibit A) .

13/ Prehearing Conference Order, supra, at 13 (February 13, j 1981).

14/ Commission Order, supra, at 4 (April 1, 1981).

I 15/ Entitled Joint Intervenors' Response in Opposition to NRC

Staf f 's and Pacific Gas and Electric Company's Motion for Reconsideration, this request for reconsideration of denied contentions was supported both by affidavit and extensive analysis of the Commission's April 1 Order. See Exhibit B hereto.

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summary disposition as to two of the contentions 15/ and denied it as to contention 4, regarding emergency response planning, and

~bontention 24, regarding reactor coolant system valve performance testing.11/

Evidentiary hearings were held in San Luis Obispo, California, on May 19-22, 1981. Proposed findings were submitted in early June, and on July 17, the licensing board issued its Partial It itial Decision. Briefly stated, the board concluded that compliance with the Commission's emergency planring regulations is not required prior to low power operation and, 16/ Joint Intervenors moved for reconsideration of summary disposition of contention 13, regarding reactor vessel level indication. The motion was denied, however, by order of the licensing board. In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plantl~, Memorandum and Order Denying Motions for Reconsideration of Contention Thirteen (May 11, 1981) .

12/ Those contentions provide as follows:

Contention 4. Numerous studies arising out of the accident at TMI Nuclear Power Plant have shown the need for upgrading emergency response planning. Based upon those studies, the Commission promulgated revised emergency plcnning regulations effective November 3, 1980. The Applicant has failed to demonstrate that the combined Applicant, State and local emergency recponse plans for Diablo Canyon comply with those revised regulations (" Final Regulations on Emergency Planning," 45 Fed. Reg. 55402 (August 19, 1980)).

Contention 24. Reactor coolant system relief and safety valves form part of the reactor coolant cystem pressure boundary. Appropriate qualification testing has not been done to verify the capabilities of these valves to function during normal, transient and accident conditions. 'In the absence of such testing and verification, compliance with GDC 1, 14, 15 and 30 cannot be found and public health and safety are endangered.

further, that the standards which they prescribe need not'even be addressed. Ignoring uncontradicted testimony as to the absence of effective offsite preparedness, the board concluded that the current level of preparedness is sufficient in light of the

" reduced risk" of low power operations, a reduction which the board did not attempt to quantify precisely. The board further concluded that NUREG-0737 relief and safety valve performance testing could be completed by July 1, 198118/ but that block valve testing need not be completed prior to low power licensing.

Finally, the board found that all issues previously held in abeyance -- e.g., quality assurance and generic unresolved safety issues -- were unaf fected by the TMI-2 accident and could now be resolved in favor of licensing without further hearing.

On August 3, 1981, Joint Intervenors initiated this appeal by timely filing exceptions to the licensing board's decision as well as to other or$lers issued during the course of the low power test proceeding.

III. ARGUM ENT -

A. Introductory Statement The Three Mile Island accident was the most serious nuclear accident in the history of the United States' commercial 18/ See discussion at Point III.F infra.

(_

nuclear reactor pr.ogram.1E/ It disclosed fundamental flaws in the existing regulatory approach of the Commission and discredited basic assumptions about nuclear safety to a degree which could not have been foreseen prior to the accident. Most importantly, it demonstrated that the Commission's regulations, which theretofore had been considered sufficient to assure that the health and safety of the public would be protected, were inadequate for that critical purpose and were in immediate need of supplementation with more stringen' licensing requi ements.22/

These conclusions were confirmed by a number of investigations and studies initiated during the weeks and months 19/ The President's Commission on the accident at TMI-2 described the accident as follows:

In the minutes, hours, and days that followed, a series of events -- compounded by equipment tailures, inappropriate procedures, and human errors and ignorance -- escalated into the worst crisis yet experienced by the nation's nuclear power industry.

Report of the President's Commission on the Accident at Three Mile Island, The Need for Change: The Legacy of TMI" ("Kemeny Cammission Report") (October 30, 1979).

20/ In testimony before the House Subcommittee on Environment, Energy and Natural Resources, Committee on Government Operations, Commissioner Bradford explained the implications of the TMI-2 accident for the licensing process:

Af ter Three Mile Island,the Kemeny Report, and other studies, the Commission could not imaginably have continued to license on the basis of its pre-R4I regulations alone. It would have been jeered out of every legislative or judicial forum that it appeared before.

In Re Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, NRC , Separate Views of Commissioner Bradford, n.1 (November 3, 1980).

e,- .- ,. -,,,n., . - , . - - , ..--e,,

following the accident, most notably by the President's Commission on the Accident at Three Mile Island,21/ the NRC's Special Inquiry Group,22/ and the TMI Lessons Learned Task Force.2}/ The results l of these investigations revealed the need for reform going to the very heart of the nuclear regulatory process:

To prevent nuclear accidents as_ serious as Three Mile Island, fundamental changes will be necessary in the organization, procedures, and practices -- and above all -- in the attitudes of the Nuclear Regulatory Commission and, to the extent that the institutions we investiga are typical, of the nuclear industry i

This is the first contested licensing proceeding in whicn the true extent of the reforms instituted in the aftermath

of the TMI accident will be measured. Significant safety issues arising out of the TMI accident have been raised by Joint Intervenor.c; requiring the interpretation and application of the i

Commission's policy guidance on the litigation of TMI-related issues.2}/ Contentions have been filed and litigated under the Commission's revised emergency planning regulations, duly 4

i

21/ See note 19 supra.

l 22/ "Three Mile Island: A Report to the Commissioners and to the Public" ("Rogovin Commission Report") (January 1980) .

22/ "TMI-2 Lessons Learned Task Force Status Report and

< Short-Term Recommendations," NUREG-0578 (July 1979) ; "TNI-2 Lessons Learned Task Force Final Report," NUREG-0585 (0.tober 1979).

24/ Kemeny Commission Report, supra, at 7.

~

4 25/ Statement of Policy: Further Commission Guidance for Power Reactor Opc rating Licenses, 45 Fed. Reg. 41738 (June 16, 1980); Revised Statement cf Policy: Further Commission Guidance

. for Power Reactor Operating Licenses, CLI-80-42, 45 Fed. Reg. 85236 (December 18, 1981); see also Commission Order (April 1, 1981).

(

promulgated and effective November 3, 1980. Similarly, PGandE's cor liance with specific NUREG-0737 items has been challenged.

This proceeding involves as well one of the earliest applications in a contested licensing proceeding of the Commission's. Statement of Interim Policy on Class 9 accident analysis under NEPA, issued in June 1980 in response to the TMI accident.21/

As the following discussion demonstrates, each of these TMI-related reforms has either been ignored or emasculated by the licensing board in this proceeding. As if in an effort to make up for time " lost" during the period of study and concern for safety which followed the accident, the board has, by its acticas, rendered meaningless not only these reforms, but the basic regulatory principle that nuclear reactors may not be licensed unless they comply with all applicable regulations. See, e.g., 42 U.S.C. SS 2233 (d) , 2236 (g) , 2337; 10 C.F.R. S 50. 57 (a) ; In the Matter of Vermont Yankee Nuclear Power Corp. (Vermont Yankee Station), ALAB-138, RAI-73-4, 528-29 (1973). More important than a concern for speed in licensing, the Commission's regulations are intended to reflect the philosophy that "public safety is the first, last and a persanent consideration" in decisions to license nuclear power plants. In the Matter of Consumer Power Co.

(Midland Plant, Units 1 and 2), ALAB-315, NRCI-76-2, 103-04, citing Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S. 396, 81 S.Ct. 1529 (1961). The licensing board's July 17, 1981 Partial 26/ Statement of Interim Policy: Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969," 45 Fed. Reg. 40101 (June 13, 1980).

Initial Decision makes a mockery of that philosophy and plainly heralds a return to " business as usual" for the licensing of nuclear facilities under the Commicsion's jurisdiction.

Accordingly, it must be reversed by the Appeal Board.

B. The Licensing Board Improperlir Denied Joint Intervenors' Right to Be Heard Under the Administrative Procedure Act, the Atomic Energy Act, and the Cot.ciission's December 18, 1980 Revised Statement of Policy and April 1, 1981 Order in This Proceeding The licensing board's rejection of the vast majority of Joint Intervenors' TMI-related contentions was erroneous as a matter of fact and law.21/ First, contrary to the board's ruling, many of the rejected contentions were, in fact, related to specific NUREG-0737 requirements.28/ More fundamentally, however, I the board's action contravenes the explicit direction of the Commission in its December 18, 1980 Revised Statement of Policy

and in its April 1 Order herein and ignores the background leading to, and the fundamental purpose for, their issuance. Further, 27/ See Statement of Rejected Contentions, attached hereto as Exhibit C.

28/ See Statement of Rejected Contentions (attached hereto as Exhibit C), Prehearing Conference Transcript, at 17 2 et seg.

(January 28-29, 1981); Joint Intervenors' Response to NRC-Staff's February 23, 1981 Request for Directed Certification and Pacific Gas and Elecric Company's February 26, 1981 Request for Directed Certification, at 36-66 (March 26, 1981) (attached hereto as Exhibit D); and Joint Intervenors' Response in Opposition to NRC Staft's and Pacific Gas and Electric Company's Motion for Reconsideration, at 11-20 and accompanying affidavit of nuclear consultant Gregory C. Minor (April 22, 1981) (attached hereto as Exhibit B).

r --

the board's citation of NUREG-0737 as an inflexible limitation on Joint Intervenors' substantive right to litigate safety issues relevant to the operation of Diablo Canyon violated their established right to a hearing, both under the notice and comment provisions of the Administrati e Procedure Act, 5 U.S.C. S$552-53

("APA") and S189(a) of the Atomic Energy Act of 1954, 42 U.S.C.

5S2011, 2239(a) ("AEA").

1. The Commission's Revised Statement of Policy and April 1 Order Recognizing the unprecedented significance of the TMI accident for nuclear reactor regulation,22/ the Commission directed its staff to develop a plan "to correct or improve the regulation and operation of nuclear facilities based on the experience from the accident at TMI-2 and the official studies and investigations of the accident."32/ This directive led to the development of the Commission's principle response to the accident

-- namely, the "NRC Action Plan Developed as a Result of the TMI-2 Accident" ("TMI Action Plan") , NUREG-0660.

Rather than utilizing the mandatory public notice and comment procedures established by the Administrative Procedure 29/ See notes 19-24 and accompanying text supra.

30/ "NRC Action Plan Developed as a Result of the TMI-2 Accident" ("'n4 I Act ion Plan") , NUREG-0660, at 1 (August 1980).

r --

Act 31/ for the promulgation of agency regulations,22/ the Commission instead determined that NUREG-0660 would form the basis dor a shorter set of operating license requirements, issued first as "TMI-Related Requirements for New Operating Licenses,"

NUREG-0694 (June 1980) , and subsequently superseded by

" Clarification of TMI Action Plan Requirements," NURE '-07 37 (November 1980). Public comments were neither solicited nor cc=Jidered by the NRC Staff in its preparation of any of these documents, with the notable exception of numerous recommendations regarding the content of the TMI Action Plan by the Atomic Industrial Forum ("AIF"), an industry trade group.33/ As is evident from a comparison of the Ti4I Action Plan with AIF proposals,33/ the recommendations of AIF were directed solely 31/ 5 U.S.C. SS 551, 553, 32/ One notable exception is the Commission's prcmulgation of revised emergency planning regulations, effective November 3, 1980, in direct response to the TMI-2 accident. " Final Regulations on Emergency Planning," 45 Fed. Reg. 55402 (August 19, 1980). See discussion infra at Point III.C.

33/ Commissioners Bradford and Gilinsky have noted the imbalance which existed in the preparation of the Action Plan.

Commissioner Bradford observed:

One set of prospective litigants -- the industry -- has been extensively involved in the development of the Action Plan. An industry panel met with the Commission, and the industry has been in constant contact with the staff and in the providing of written comments throughout the process. The plan has i never been put out for public comment, and

! little or no public comment has taken place.

l Statt c.ent of Policy: Further Commission Guidance for Power Reactor Opei. ting Licenses, (" Statement of Policy"), Dissenting Views of Comm ssioner Bradford, at 2 (June 16, 1980); see also id.,

Sepa. ate Views of Commissioner Gilinsky.

t 34/ See "R4I Action Plan," v. 2, at 158-177.

l  !

r toward reducing the stringency of new TMI-related requirements and implementation schedules, and its recommendations led to externsive revision of the Action Plan. No opportunity for contrasting input by other segments of the public was provided by the Commission.

In a June 16, 1980 Statement of Policy, entitled "Further Commission Guidance for Power Reactor Operating Licenses," 45 Fed. Reg. 41738, the Commission adopted NUREG-0694 as a "necessary and sufficient" response to the TMI-2 accident and attempted for the first time to provide guidance to the various NRC boards for the litigation of TMI-related issues in actual licensing proceedings. Over the objections of Commissioners Bradford and Gilinsky, the Commission majority imposed a strict limitation on the jurisdiction of the Atomic Safety and Licensing and Appeals Boards to entertain contentions. Specifically, the Commission stated that:

The TMI-related " Requirements For New Opere:ing Licenses" adopted herein can, in terms of their relationship to existing Commission regulations, be put in two categories: (1) those that interpret, refine or quantify the general language of existing regulations, and (2) those that supplement the existing regulations by imposing requirements in addition to specific ones already contained therein.

Insof ar as the second category --

supplementation of existing regulations -- is concerned, boards are to apply the new requirements unless they are challenged, but they may litigate only to a limited extent.

Specifically, the boards may entertain contentions asserting that the supplementation is unnecessary (in full or in part) and they may entertain contentions that one or more of the supplementary requirements are not being complied with; they may not entertain i

l

o .

contentions asserting that additional supplementation is required. The board's authority to raise issues sua sponte shall be subject to the same limitations. 35/

In a dissent, Commissioner Bradford noted the ironic injustice of the Commission majority's action:

[A]s a result of the Commission's actions, the only group that will be permitted to contest the questions at issue here will be the industry. Thus, those who have had the greatest say in shaping the Action Plan will now be able to challenge its requirements further, while those who have had no say in shaping it will be foreclosed from challenging the very requirements that they have had no opportunity to. comment on. 36/

Almost immediately, however, members of the Commission majority began to soften the seemingly inflexible limitation on jurisdiction enunciated in the Policy Statement. In a letter l

35/ Statement of Policy, supra, at 7-8 (emphasi_s added).

36/ Id., Dissenting Views of Commissioner Bradford, at 2 (emphasi_s added).

l l

dated June 30, 1980 to Congressman Morris Udall, Chairman of the House Committee on Interior Insular Affairs, NRC Chairman Ahearne stated that the Commission's Policy Statemeat "does not; in any way

diminish intervenors' present rights to litigate TMI-related, issues" before the licensing boards, but, in fact, effects a change "in the direction of permitting parties to raise more issues, not fewer." In order to allay fears that the rights of a party to raise relevant contentions would be improperly limited, the Chairman concluded

i The Commission recognizes that a policy statement does not have the force and effect of law but merely indicates a policy which the Commission intends to apply in the future. In the future, should any questions be raised before the Commission itself under Appendix B regarding the validity of any part of the policy statement as applied to a particular case, the Commission recognizes its obligation to consider the question and reply on the state of the record before it.

On July 25, 1980, the Union of Concerned Scientists and the Shoreham Opponents Coalition filed with the Commission a request for a stay of the Policy Statement, alleging principally that it had improperly cut off the rights of intervenors to raise contentions that the public health and safety require more than the items contained in NUREG-0694.32/ By a 2-2 vote, the Commission denied the stay on November 3, 1980, but each of the Commissioners suggested that contentions going beyond NUREG-0694 J

37/ In Re Statement of Policy: Purther Commission Guidance on Power Reactor Operating Licenses, ALAB- , NRC , Separate Views of Chairman Ahearne and Commissioner Hendrie, s1. op. at 2 (November 3, 1980).

could be considered in individual licensing proceedings.

Commissioners Ahearne and Hendrie stated that "to the extent that intervenors present sound reasons for the Commission to address the merits of their contentions . . . the Commission should consider all relevant matters -- e.g., the pleadings before it, NUREG-0694, etc. -- in determining whether the contentions should be litigated.38/ Commissioners Gilinsky and Bradford filed separate views in which they restated their view that any limitation of contentions Dased on NUREG-0694 and the June 16, 1980 Policy Statement woulo be not only unfair and unwise, but illegal.31/

On December 3, 1980, the explicit limitation contained in the Policy Statement was challenged once again in a Request for Directed Certification to the Commission filed by Joint Intevenors in the Diablo Canyon low power test proceeding on the ground that certain contentions should be admitted which, although beyond the scope at NUREG-0694, bore directly on the fundamental question of safety of operation of the Diablo Canyon facility. Specifically, l

38/ Id., at 4, n.5.

39/ Denial of the petition was appealed to the U.S. Court of Appeals for the D.C. Circuit. Union of Concerned Scientists v.

U.S. Nuclear Regulatory Commission, No. 80-1962 (D.C. Cir. 1980).

l However, the appeal was withdrawn by stipulation of mootness in January 1981 in light of the Commission's December 18, 1980 Revised Statement of Policy. Paragraph 3 of the stipulation provides that:

All parties to individual licensing proceedings are permitted by the Revised Policy Statement to challenge the necessity for and sufficiency of the interpretive and supplementary requirements addressed by the l

Revised Policy Statement. [Emphasic added.]

l l

< -~ ,

the contentions related to emergency planning, quality assurance, and Class 9 accident analysis.

That application was denied on December 22,30/ but only after the Commission on December 18 had withdrawn the June 16 Policy Statement and issued its Revised Statement of Policy, primarily because "[t]he Commission has now had more time to reflect upon the distinction between interpretive and supplementary requirements, as originally set forth in NUREG-0694 and as modified in NUREG-0737 . . . . "A1/ Through this revision, the Commission removed the fundamental defect from the June 16 Policy Statement -- nameli, the artificial and arbitrary limitation of licensing board jurisdiction -- and explicitly provided for the right of parties to litigate the sufficiency of NUREG-0737 requirements. In direct contrast to the procedure established in the original Policy Statement, the Commission announced that " parties may challenge either the necessity for or 40/ By one-page order, the Commission denied the Request for Directed Certification, relying solely on the Revised Statement of Policy. The Commission stated:

The Commission denies the request because the Licensing Board now has the authority to rule on the issues raised by Joint Intervenors.

See " Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses," CLI-80-42, 12 NRC ___ (December 18, 1980). Consequently, this motion does not raise such exceptional circumstances as to warrant the extraordinary involvement of the Commission at this stage of the proceeding.

[ cit. omit.}

41/ " Revised Statement of Policy," supra, Memorandum and Order, at 3.

e sufficiency of [the NUREG-0737 requirements]."12/

Neither this explicit language nor the background leading to its adeption by the Commission supplies a basis for the February 13 Prehearing Conference Order of the licensing board in the Diablo Canyon proceeding. Indeed, the licensing board virtually ignored the Commission's directive and inexplicably concluded that the Board will . . . deny any contention which is not directly related to NUREG-0737 requirements. Contrary to Joint Intervenors view, we believe the Commission's intent as set forth in the policy statement was not changed by the subsequent revision.

[T]he Board does not believe it reasonable to interpret the provision permitting the challenge of the sufficiency of new regulatory requirements as permitting the addition of requirements not contained in NUREG-07 37. 43/

42/ Id. at 8. In addition, the Commission proposed the following three-part test:

It would be useful if the parties in taking a position on such requirements stated (a) the

nexus of the issue to the R4I-2 accident, l (b) the significance of the issue, and (c) any l differences between their positions and the l rationale underlying the Commission consideration of additional TMI-related requirements. It would be helpful if any certifications of questions regarding such positions to the Commmission included the same information and such certifications are encouraged where Boards are in doubt as to the Commission's intentions in approving NUREG-0737. The Atomic Safety and Licensing Appeals Boards' present authority to raise issues sua

' sponte under 10 C.F.R. 2760a extends to bot" categories.

l$-

43/ Prehearing Conference Order, supra, at 13-14 (emphasis added).

L

Based on this determination of law, the bor.rd r9jected fifteen of Joint Intervenors' contentions as insufficiently related to NUREG-0737 and, thereby, foreclosed Joint Intervenors' right to a hearing on the safety issues raised by those contentions.SS/

Ir. response to requests for directed certification filed with the Commission in late February,SE/ the Commission, in its April 1 Order in this proceeding, determined that still further guidance was necessary, and it acknowledged that this guidance could lead to reconsideration of some of the rulings contained in the licensing board's February 13 decision.S5/ In its Order, the Commission considered and resolved the essential question whether, to be admitted in a licensing proceeding, a TMI-related contention must bear a direct relationship to a particular NUREG-0737 requirement. In concluding that it did not, the Commission distinguished between significant new evidence that an NRC regulation would be violated by plant operation -- in which case no relationship to NUREG requirements need be demonstrated for admission of the contention -- and significant new evidence that, j dernite compliance with all regulations, there is insufficient l

l protection to the public -- in which case the contention must relate to the same basic " safety concern" upon which a particular l

NUREG requirement was based. The Commission expressed its

! 44/ Id. at 18-28. The rejected contentions are set forth in Exhibit C hereto.

l l

45/ See discussion at note 11 and accompanying text supra.

{ 41/ Commission Order, supra, at 1 (April 1, 1981).

i l l

l

f intention as follows:

[Ilf a party comes forward on a timely basis with significant new TMI-related evidence indicating that an NRC safety regulation would be violated by p'.nt operation, we believe that the recoro_ soould be reopened notwithstanding 'that the noncompliance item is not discussed in NE.dEG-0737 and 0694.

However, the carties are required to make the initial ca . hat significant new evidence is available, not merely make claims to that effect.

Where the new evidence raises no issue of compliance but rather questions whether there is adequate protection despite compliance with all applicable regulations, a party has two procedural options under the Revised Statement of Policy. First, a party may challenge the sufficiency of an item in the NUREG documents.

However, the scope of the inquiry under this option is limited to the particular safety concerns that orompted the specific "recuirements" in NUREG-0694 and 0737. What we had in mind was allowing a party to focus on the same safety concern that formed the basis for the NUREG requirement and litigate the issue of whether the NUREG " requirement" is a sufficient response to that concern.

• *

• Second, where the contention or new evidence cannot be associated with a safety concern identified by NUREG-0694 or 0737, 10 C.F.R. 2.758 may be used to bring the matter to the Commission's attention withog37 prior litigation on the merits. * * * --

On April 22, 1981, Joint Intervenors requested reconsideration of the previous denial of contentions, relying upon this most recent explanation by the Commission of the

, standard for admissibility of TMI-related contentions.SO/ This i

l 47/ Id. at 3-5 (emphasis added; footnote omitted).

l 48/ See discussion and affidavit attached to Joint l

Intervenors' Response in Opposition to NRC Staff's and Pacific Gas l

and Electric Company's Motion for Reconsideration, at 11-20

! (April 22, 1981) (attached hereto as Exhibit B).

l l

l

-q, , - --- -- c., , . - - - , . - , - -

time, however, the board did not even bother to explain the reasons for its decision but simply denied the request by summary orde;.

The licensing board's denial of contentions and subsequent re,fusal to reconsider cannot be reconciled with the express language of the Commission in its Revised Statement of Policy and April 1 Order. Indeed, as applied by the board, those documents provide a standard for admissibility of TMI-related contentions which is vitually identical to that provided in the Commission's original Statement of Policy. Had such been the Commission's intention, there clearly would have been no need for subsequent revision and clarification.

Notwithstanding the Commission's explicit recognition in the Revised Statement of Policy and the April 1 Order that parties in actual licensing proceedings may litigate the sufficiency of relevant TMI-related issues, the licensing board has thwarted that right. In so doing, it insures -- at the expense of public safety

-- that the public, which was excluded from participation in *.e i

development of the TMI Action Plan, NUREG-0694, and NUREG-0737 will be denied once again an opportunity even to commen- up t

lessons learned at TMI and the Commission's response to th' accident. The licensing board's application of the Commission's policy guidance is erroneous as a matter of law and must, therefore, be reversed by the Appeal Board.

2. Administrative Procedure Act ("4PA")

The APA requires reversal of the licensing board's drbitrary denial of Joint Intervenors' relevant TMI-related contentions. Under the Act, there are only two ways in which the Commission or any other administrative agency can create binding precedent, to be followed prospectively by all persons involved:

(1) rulemaking and (2) adjudication.SE/ A common element of each is the right of all interested parties to be heard on any issue relevant to a matter in controversy; the failure of an agency to respect the public's right to participate in the promulgation of substantive regulations renders the purported regulations invalid.

Chamber of Commerce of the United States v. Occupational Safety and Health Administration, 636 F.2d 464, 1980 OSHD 124,596 at 30,191 (D.C. Cir. July 10, 1980); Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1153-54 (D.C. Cir. 1977);

American Iron and Steel Institute v. Environmental Protection Agency, 568 F.2d 284, 292 (3rd Cir. 1977); Dow Chemical, USA v.

gopsumer Product Safety Commission, 459 F.Supp. 378, 390 (W . D . La.

19'/8); Crown Zellerbach Corp. v. Marshall, 441 F.Supp. 1110, 1119 l (E.D. La. 1977); National Retired Teachers Ass'n v. United States Postal Service, 430 F.Supp. 141, 148 (D.D.C. 1977), aff'd, 592 F.2d 1360 (D.C. Cir. 1979); United States v. Daniels, 418 F.Supp.

1074, 1079 (D.S.D. 1976); Cerro Metal Products v. Marshall, 467 l

39/ 5 U.S.C. SS 553, 556-57.

l t __

F.Supp. 869, 882 (E.D. Pa. 1979).10/

50/ The fundamental purposes and benefit of the notice and comment procedure have been recognized repeatedly by the courts.

See Chamber of Commerce v. OSHA, 636 F.2d 464, 1980 OSHD 124,596 (D.C. Cir. July 10, 1980); American Bus Ass'n v. U.S.. 728 F.2d 525, 528, 533-34 (D.C. Cir. 1980); Brown Exoress, Inc. v. U.S.,

607 F.2d 695,701 (5th Cir. 1979). In Chamber of Commerce, the D.C. Circuit Court of Appeals explained:

The Assistant Secretary should not treat the procedural obligations under the APA as meaningless ritual. Parties affected by the proposed legislative rule are the obvious beneficiaries or proper procedures. Prior notice and an opportunity to comment permit them to voice their objections before the agency takes final action. Congress enacted 5 U.S.C. 5553 in part to "' afford adequate safeguards to private interests.'" [ Citations omitted.] Given the lack of supervision over agency decisionmaking that can result from judicial deference and congressional inattention, see Cutler & Johnson, " Regulation and the Political Procesy," 84 Yale L.J. 1395 (1975), this protection, as a practical matter, may constitute an affected party's only defense mechanism.

An agercy also must not forget, however, that it toe has much to gain from the assistanc9 of outside parties. Congress recognizcd that an agency's "' knowledge is rarely complete, and it must learn the . . .

viewpoints of those whom the regulation will affect . . . . [Public] participation . . . in the rule-making process is essential in order l, to permit administrative agencies to inform themselves . . . .

[ Citations omitted.]

Finally, and most important of all, high-handed agency rulemaking is more than just offensive to our basic notions of democratic government; a failure to seek at least the acquiescence of the governed eliminates a vital ingredient for effective administration action. See Hahn, " Procedural Adequacy in Administrative Decisionmaking: A Unified Formulation" (pt. 1), 30 Ad. L. Rev. 467, 500-04 (1978). Charting changes in policy direction with the aid of those who will be affected by the shift in course helps dispel

[ footnote cont.]

L

Because none of the documents relevant to the pending applications -- i.e., "TMI Act ion Plan ," NUREG-0 69 4, NUREG-07 37, the ' ne 16 Statement of Policy, the December 18 Revised Statement of Policy -- w7s submitted for public notice and comment, the Commission - and, in this case, the licensing board -- is precluded frcm imposing inflexible rules or requirements based upon any one or a combination of those documents. Although the Administrative Procedure Act excludes statements of policy from its notice and comment requirements,51/ such exceptions are to be narrowly construed and are not to be utilized whenever an agency finds them inconvenient. American Bus Ass'n v. United States, 627 F.2d 525, 528 (D.C. Cir. 1980); United States Steel Corp. v.

Environmental Protection Agency, 595 F.2d 207, 214 (5th Cir.

1979); Humana of South Carolina v. Califano, 590 F.2d 1070, 1082 (D.C. Cir. 1978); Joseoh v. United States Civil Service Comm'n, 554 F.2d 1140, 1152-54 (D.C. Cir. 1977). The fact that an agency may have chosen to characterize its action as a statement of policy is not dispositive because the " label that a particular agency puts upon its given exercise of administrative power is not

. . . conclusive; rather it is what the agency does in fact."

50/ [ cont.]

suspicions of agency predisposition, unfairness, arrogance, improper influence, and ulterior motivation. Public participation in a legislative rule's formulation decreases the likelihood that opponents will attempt to sabotage the rule's implementation and enforcement. (Citations omitted.]

635 F.2d at 470, 1980 OSHD at 30,191-92.

51/ 5 U.S.C. S553(b).

27-

Columbia Broadcasting System v. U.S., 316 U.S. 407, 416,62 S.Ct.

1194 (1942); Brown Express, Inc. v. United States, 607 F.2d 695, 700 (5th Cir. 1979); Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481 (2nd Cir. 1972). Certainly, an agency may not lawfully promulgate substantive rules in the guise of a policy statement to deny the public's right of participation. Pacific Gas and Electric Co. v. F.P.C., 506 F.2d 33 (1974); Chamber of Commerce

v. OSHA, supr_a. _

The licensing board's application of the Commission's Revised Statement of Policy and Ap il 1 Order plainly imposes a binding and inflexible limitation on Joint Intervenors' substantive right to litigate n4I-related issues relevant to PGandE's low power license application. As such, it is invalid both under the cases cited supra and a litany of recent decisions of the U.S. Court of Appeals for the District of Columbia Circuit which have considered in detail the crucial distinction between substantive regulations -- for which notice and comment are l required -- and a general statement of policy -- for which they are not. The leading case on this issue is Pacific Gas and Electric Company v. Federal Power Commission, 506 F.2d 33 (D.C.

Cir. 1974), where the court ruled that "[a]n agency cannot escape its responsibility to present evidence and reasoning supporting l

its substantive rules by announcing binding precedent in the form of a general statement of policy." Id., at 38-39. The court defined the two types of pronouncements as follows:

A properly adopted substantive rule l

establishes a standard of conduct which has the force of law. In subsequent t

administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and

- whether the rule should be waived or applied in that particular instance. The underlying policy embodied in the rule is not generally subject to challenge before the agency.

A general statement of policy, on the other hand, does not establish a " binding norm." It is not fully determinative of the issues or rightc to which it is addressed.

The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy. A policy statement annouGces the agency's intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.

Id. (footnotes omitted; emphasis added). For a particular pronouncement to fall legitimately within the general statement of policy exception, the issuing agency must include a caveat that the pronouncement "is subject to complete attack before it is finally applied in future cases." Id. at 39 (emphasis added) .ES!

This language was cited with approval recently in i

1 1

52/ Although the court in Pacific Gas found that the order in issue was properly characterized as a " general statement of policy," it relied explicitly on language contained in the order l which indicated its tentative nature:

[T]he Commission announced . . . the curtailment policy which it " proposes to j

i implement," the plan " preferred by the I

Commission," which "will serve as a guide in other proceedings."

l 506 F.2d at 40. Morecver, the order specifically provided that

[when) applied in specific cases, opportunity will be afforded l

interested parties to challenge or support this policy through factual or legal presentation as may be appropriate in the circumstances presented."

Quoted in 506 F.2d at 40.

l t

American Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir.

1980), where the court rejected a contention of the Interstate Commerce Commission that its pronouncement entitled " Revised Policy Concerning Applications for Operating Authority to Handle Traffic To and From Points in Canada" was a general statement of policy. After reviewing the purpose of the APA's notice and comment requirements, the relevant legislative history, and the definition of general statement of policy set forth in Pacific Gas and Electric, suora,52/ the coort noted two criteria which the courts have employed in deciding whether an agency's pronouncement is a policy statement or a " binding norm": first, whether it " acts prospectively," because a " statement of policy may not have a present effect"; and, second, whether it " genuinely leaves the agency and its decision-makers free to exercise discretion,"

53/ The court also cited Pickus v. U.S. Board of Parole, 507 F.2d 1107 (D.C. Cir. 1974), where an attempt by the U.S. Parole Board to change the criteria governing granting of paroles through issuance of a " policy statement" never submitted for public notice and comment was rejected by the court. In holding that the guidelines in question were not " general statements of policy,"

the court observed that they were of a kind calculated to have a substantial effect on ultimate parole decisions . . . . Although they provide no formula for parole determination, they cannot help but focus the decisionmaker's attention on the Board-approved criteria. They thus narrow his field of vision, minimizing the 1 influence of other factors and encouraging decisive reliance upon factors whose significance might have been differently articulated nad [section 553 of the APA] been followed.

Id., at 1112-13. Thus, the court concluded, the guidelines "are substantive agency action, for they define a fairly tight framework to circumscribe the Board's statutorily broad power."

Id.

(

because a " purported policy statement which did not do so could not be an 'announce[ ment of] the general policy which the Commission hopes to establish in subsequent proceedings,' Pacific Gas, 506 F.2d at 41, but could, impermissibly, be a ' binding norn.'" 627 F.2d at 529. Applying this analysis, the court in American Bus concluded that neither criterion was satisfied, because the " clear purport" of the policy statement in issue was (1) that "without further action by the Commission and effective immediately" certain substantive changes in the rights of interested persons were to be effective, and (2) that the pronouncement was to be binding, abolishing administrative discr

• ion rather than merely " announcing the agency's tentative intentions, . . .

" Id., at 531-32. ES/

Still more recently, in Chamber of Commerce of the United States v. OSHA, F.2d , 1980 OSHD 124,596 (D.C. Cir.

July 10, 1980), the Occupational Health and Safety Administration claimed that its so-called " interpretive rule and general 54/ See also Regular Common Carrier Conference v. United States, 628 F.2d 248 (D.C. Cir. 1980). Issued five days following American Bus Ass'n, this decision is once again predicated upon the Pacific Gas standard. The court first noted the Interstate Commerce Commission's " baffling failure in issuing a policy statement to state plainly that the agency is only 'announc[ing) the general policy which the Commission hopes to establish in subsequent proceedings,' [ cit. omit.], and that the announcement

' leave [s] the administrator free to Id. exercise his In informal discretion,' [ cit. omit.}, . . ." at 251. finding-applicable the general statement of policy exception, the court relied upon the following significant characteristics of the statement in issue: (1) it expressed the Commission's obligation to determine case by case the disputed issue; (2) it was framed in terms of presumptions, which are "by their nature tentative and rebuttable," id. at 251; and (3) taken as a whole, its very purpose was to restore discretios rather than to abolish it.

~

Finally, the court also noted that issuance of the statement had been preceded by notice and an opportunity for public comment.

i - . . . _ _ , ,

statement of policy," which declared discriminatory an employer's failure to compene. ate employees for time spent on safety

' inspections, was exempt from the notice and comment requirements of the APA. The court rejected both of the agency's characterizations. First, it dismissed OSHA's characterization of the " walk around rule" as a general statement of policy because OSHA descriptions of the rule's effect "announce[d] a definite and final rule, not a general and unsettled proposition." Id., at 30, 189-90, n.4. In addition, the rule itself, the court stated,

" establishes a binding norm, and thus does not, as a policy statement must, '[ leave) the agency and its decisionmakers free to exercise discretion.' [ cit. omit.]" Id. Second, the court disagreed with OSHA's contention that the rule was interpretative in nature, thus exempting it from the APA requirements, because the agency's clear intent through the regulation was "to supplement the Act, not simply to construe it, and therefore the regulation must be treated as a legislative rule." Id., at 30, 191. As such, the coumt held, the rule "must be vacated for failure to comply with the procedures specified by the Administrative Procedure Act . . ." Id.

In this case, the licensing board interpreted and applied the Commission's Revised Statement of Policy inflexibly to requi re that a contention have a " direct relationship" to a speci fic NUREG-07 37 requirement. Not only does such a standard have no demonstrated connection to the critical question of safety, it improperly and completely deprives Joint Intervenors of their right to demonstrate that a contention.without such a direct relationship to NUREG-0737 is relevant to safety and, therefore, i

l_

t . .

should be admitted for litigation. Thus, as applied, tP t Revised Policy Statement -- upon which the licensing board rei J -- is far more than a mere " announcement" of what the Commission tentatively hopes to establish as policy in the course of future proceedings. Despite the board's failure to justify factually its unchallengeable reliance upon NUREG-0737 requirements as the standard for admissibility of contentions, Joint Intervenors' attempt to question their sufficiency -- as the foregoing de isions unequivocally authorize -- was rejected as a matter of law. The sole basis for that rejection was the board's erroneous interpretation of the Commission's December 18 policy revision.

Without question, the board's application of the Revised Policy Statement effects a significant change in the standard by which the Commission adjudicates substantive rights.EE/ This 55/ A limitation of Joint Intervenors' right to submit contentions to those directly related to NUREG-0737 requirements plainly effects a significant change in their substantive rights and those of other interested parties. The cuggestion to the l contrary by Commissioners Ahearne and Hendrie in In Re Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, NRC (Nov. 3, 1980), that any limitation only restates existing policy established in Maine Yankee Atamic Power

Co., ALAB-161. 6 AEC 1003, aff'd, 7 AEC 2 (1974), aff'd sub nom, Citizens for Safe Power v. Nuclear Regulatory Comm'n, 524 F.2d 121 l

(D.C. Cir. 1975), is a misstatement of the law. In Maine Yankee, the intervenors challenged the failure of the licensing board to make findings with respect to residual risks beyond the parameters of duly promulgated agency regulations and as to which, the appeals board found, "there has been an implicit Commission judgment that these risks are sufficiently low as not to represent a meaningful health and safety threat." The Court of Appeals l

affirmed the licensing board's issuance of an operating license and stated:

[P]etitiorcrs interpret the Commission's view as being that any facility meeting the r

requirments of the rules may be licensed l because, a fortiori, what meets those requirements automatically satisfies the .

[ footnote cont.]

being so, the licensing board acted improperly in relying upon it as a basis for rejection of the majority of Joint Intervenors' TMI-related contentions. The cases cited supra establish that the Commission's failure to submit the document for notice and comment as the APA requires precludes it application as a binding, substantive regulation in this case. By ruling, thcrefore, that any admissible contentions must relate directly to NUREG-0737 requirements, the board has significantly curtailed Joint Intervenors' rights under the APA. As a matter of law, Joint Intervenors are entitled to litigate the basis for the Revised Statement of Policy and the sufficiency of its provisions to protect the health and safety of the public. Because it was never promulgated as a substantive rule, it may not be applied as such, and the board's order denying contentions must be reversed.

55/ [ cont.]

" reasonable assurance" and "not inimical" tests. We do not so consider it, but rather that in the absence of some indication or showing on a case-by-case basis to the contrary, and subject to the weighing of risk-benefits under NEPA, it may be found that i facilities complying with the rule do so.

524 F.2d at 1299 (emphasis added). Fundamental to this holding, however, was the court's finding that the intervenors' failure to resort to the available rule-making and amending procedures foreclosed their attack on the sufficiency of the regulations in an individual proceeding, absent a showing of special circumstances. Id. at 1300 In this case, Joint Intervenors do not seek to litigate minimal residual risks beyond the scope of duly promulgated regulations. Quite the contrary, they seek to challenge the suf ficiency of new TMI-related requirements with respect to which there has been no rule-making and no opportunity to comment prior to their adoption by the Commission. In contrast to Maine Yankee, the issues in question here stem from the Class 9 accident at TM I and focus on the Commission's response to it. That event demonstrated graphically and irrefutably the inadequacy of existing Commission regulations and the need to establish additional, more stringent requirements.

l

3. Section 189(a) of the Atomic Energy Act By arbitrarily limiting the permissible scope of

' contentions to the specific requirements of NUREG-0737, the licensing board has in effect denied the rights of interested persons to a hearing on all relevant contentions going beyond that limitation. Such a limitation constitutes a direct violation of S189 (a) of the Atomic Energy Act,E5/ which guarantees to all interested parties the right to a hearing prior to issuance, revocation, suspension, or amendment of a license where a hearing is requested.E1/ Brooks v. Atomic Energy Commission, 476 F.2d Sj/ 42 U.S.C.' S2239 (a) .

57/ Section 189 provides, in pertinent part, as follows:

S2239. Hearing and judicial review.

(a) In any proceeding under this chapter, for the granting . . . of any license . . .

the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

The Commission shall hold a hearing after

! thirty days' notice and publication once in the Federal Register, on each application under section 2133 or 2134 (b) of this title for a construction permit for a facility, and on any application under section 2134(c) of this title for a construction permit for a testing facility. In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating license or an amendment to a construction permit or an amendmerd to an operating license without a hearing, but upon thirty days' notice and publication with respect to any application for an amendment to a construction permit or an amendment to an operating license upon a determination by the Commission that the amendment involves no significant hazards consideration.

- . -.. .- -_.. _ - - _ . - ._ . . _ - _ _ _ - .- ... . .~ .-

I

{

924, 926 (D.C. Cir. 1973) (per curiam); Westinghouse Electric i

j Corocration v. U.S. Nuclear Regulatory Commission, 598 F.2d 759,  !

72-73 (3rd Cir. 1979); Sholly and Hossler v. U.S. Nuclear j Regulatory Commission, F.2d , 1980 CCH Nucl. Reg. Rptr. ,

4

! 120,167 (Nov. 19, 1980) (per curiam) . The legislative history of i

f this section indicates that "it was congress' intent to lessen the 1

! mandatory hearing requirement only when there was no request for a hearing." Brooks v. Atcmic Energy Commission, 476 F.2d at 927.

! It is well settled that the hearing right guaranteed by l S189(a) applies even where the Commission determines that the i proposed action involves "no significant hazards consideration."

i '

t First established in Brooks, this principle has recently been l

reaffirmed by the U.S, Court of Appeals for the D.C. Circuit in Sholly and Hossler, supra, where the court considered and held unlawful the NRC policy of " making immediately effective license amendments without holding a hearing, even though petitioners

! request one, whenever the NRC finds that the amendment involves I

'no significant hazards consideration.'" 1980 CCH Nucl. Reg.

j i

! Rptr. at 16,989. At issue was an amendment to the TMI-2 operating i license to authorize the venting of hydrogen gas from the l

containment building into the atmosphere as part of the decontamination process. Citing Brooks, the court first concluded that the doctrine of stare decisis compelled the conclusion that a determination of "no significant hazards consideration" did not obviate the hearing right. Second, the court considered in detail the legislative history of S189 (a) and concluded that "there is no ambiguity in the legislantive history or the test of $189(a) with

" Id., at respect to the question before this court . . . .

r 16,952, n.24. Finally, because of the unambigious character of  ;

the statute and legislative history, the court stated that

" deference to the agencies' [AEC and NRC] interpretatione would be  ;

inappropriate in this case." Id., at 16,951, n.26.

No material distinction exists between the denial of hearing rights held unlawful in Brooks and Sholly and Hossler and the denial challenged here. Even if premised on the view of the Commission or the licensing board that the requirements of NUREG-0737 provide sufficient assurance of safety -- a finding analogous to that of "no significant hazards consideration" in the foregoing  ;

cases -- a binding limita* ion on the scope of admissible TMI-e related contentions is an improper basis for denial of a hearing. ,

Nor is this conclusion affected by the board's admission of other contentions for hearing. The fact that a hearing is granted as to certain contentions cannot validate the board's complete violation of Joint Intervenors' rights as to others.

The rejection of Joint Intervenors' contentions by the licensing board violates their right to a hearing guaranteed by

$189 (a) of the Atomic Energy Act. That section and judicial decisions applying it require that a hearing be provided prior to issuance of the license in issue. Accordingly, the licensing board's order denying contentions must be reversed by the Commission.

l l

C. The Licensing Board Erred in Ruling that the State of Emergency Preparedness at Diablo Canyon Complies With the Commission's Revised Emergency Planning Regulations In its July 17, 1981 Partial Initial Decision, the licensing board misconstrued the Commission's recently revised l

.. ,-. . _ .-. _ ., _ ,.- , - _ . -... - _ _ _ _ _ .- _ . _ _ . - _ , - ..-,,,,. _ ,- ...._ __.- _ ,-- . .._,-m . - ,

e o emergency planning regulations in three fundamental respects.

First, it_ ignored the evidence conceded on the record by all parties that the combined applicant, State, and local emergency plans did not comply with even one of the sixteen mandatory emergency planning standards set forth in 10 C.F.R. S 50.47 (b) and concluded that those standards were inapplicable to low power operation. Second, it improperly relied on generalized estimates of the low probability of accidents in justifying the absence of significant offsite preparedness, even within the six mile " low population zone" surrounding the plant. Third, despite ne recognized seismic dangers associated with the Diablo Canyon site, the board disregarded the failure of the existing emergency plans to consider the effects of a major earthquake on the Hosgri Fault occurring simultaneously with a radiological emergency at the plant.

Each of these rulings demonstrates a shocking failure to comprehend both the purpose for and meaning of the Commission's revised emergency planning regulations. As appears below, the findings by the board that the current level emergency planning "provides substantial radiological protection to the public . . .

and "is consistent with NRC requirements as set forth in 10 C.F.R. 50.47 . . . ,, "p8/ are clearly erroneous as a matter of fact and law and are supported neither by the record nor a fair reading of the regulations. Therefora, the board's finding that the emergency preparedness at Diablo Canyon is adequate must be 58/ Partial Initial Decision, supra, at 51 (July 17, 1981).

I e o reversed.

i i

1. The Licensing Board Improperly Ruled, In Effect, That the Commission's Revised Emergency Planning Regulations Do Not Apply to Low Power Operation As one of its primary responses to the TMI-2 accident, the Commission undertook a complete revision of its emergency planning regulations.E2/ In June 1979, the NRC began a formal reconsideration of the role of emergency planning in ensuring the continued protection of the public health and safety in areas around nuclear power facilities. The Commission began this reconsideration in recognition of the need for more effective emergency planning and in response to the TMI accident and various reports issued by responsible offices of government, including the NRC's Congressional oversight committees.5E/

On December 19, 1979, the Commission published proposed amendmentstoitsexistyngregulations. In explanation of the.

rationale for the revision, the Commission stated:

t

59/ Recognizing the important implications of that event for the issue of emergency response planning, this board deferred any ruling on the adequacy of the Diablo Canyon plans and, in its l

September 27, 1979 Partial Initial Decision,-stated that

[i]t is not now known how the Lessons Learned f rom Three Mile Island-2 will impact on the Emergency Plan . . . so [this matter] will be 2 deferred and [is] not a part of this Initial Decision.

l

) In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant), Partial Initial Decision, sl. op, at 9

( (September 27, 1979).

I

60/ " Emergency Planning; Final Regulations," Preamble, 45 Fed. Reg. 55402 (August 19, 1980). s i.

3

• O i

i The proposed rule is predicated on the j Commission's o>nsidered judgment in the i aftermath of the accident at Three Mile Island that safe siting and design-engineered features alone do not optimize protection of 1 the public health and safety. * *

• Emergency planning was conceived as a secondary but additional measure to be 1 exercised in the unlikely event that an accident would happen. The Commission's t perspective was severely altered by the unexpected sequence of events that occurred at Three Mile Island. The accident showed clearly that the protection provided by siting ,

and engineered safety features must be

' bolstered by the ability to take protective measures during the course of an accident.

The accident also si..;ed clearly that on-site conditions and actions, even if they do not i cause significant off-site radiological consequences, will affect the way the various State and local entities react to protect the public from dangers, real or imagined, associated with the accident. A conclusion the Commission draws from this is that in carrying out its statutory mandate to protect i the public health and safety, the Commission must be in a position to know that offsite government plans have been reviewed and found

adequate. The Commission finds that the public can be protected within the framework of the Atomic Energy Act only if additional attention is given to emergency response planning. fl/

l Thus, these revised emergency planning regulations, which were issued in their final form on August 19, 1980 and became effective on November 3, 1980, were promulgated by the

! Commission as a direct consequence of the TMI-2 accident and the lessons learned therefrom. They reflect the Commission's

conclusion that " adequate emergency preparedness is an essential i

j aspect in the protection of the public health and safety," 45 Fed. Reg. at 55404 (emphasis added), and, as is explained in the i

i 11/ Notice of Proposed Rulemaking, " Emergency Planning,"

Preamble, 44 Fed. Reg. 75164, 75169 (December 19, 1979).

l  !

4 _.,

l k

introduction to the revised Appendix E to 10 C.F.R. Part 50, they establish " minimum requirements for emergency plans for use in  ;

i

' attaining an acceptable state of emergency preparedness." Id. at i 55411 (emphasis added) .

4 As finalized, the upgraded regulations provide, inter 4

l alia, that

[n]o operating license for a nuclear power reactor will be issued unless a finding  :

is made ty NRC that the state of onsite and of fsite e;aergency preparedness provides l reasonable assurance that adequate protective

measures can and will be taken in the event of 4

a radiological emergency. pl/

) Such a finding by the NRC must be based (1) regarding offsite plans, on a review of findings and determinations by the Federal Emergency Management Agency (" FEMA") "as to whether State and local emergency plans are adequate and capable of being i

implemented," and (2) regarding onsite plans, on an assessment by the NRC "as to whether the applicant's onsite emergency plans are adequate and capable of being implemented."52/

The Commission's regulations further require that the onsite and offsite plans "must meet _" the sixteen planning standards set forth at 10 C.F.R. S50.47 (b) . Each standard is l

addressed by specific criteria in NUREG-0654, FEMA-REP-1, entitled

} " Criteria for Preparation and Evaluation of Radiological Emergency I

l Response Plans and Preparedness in Support of Nuclear Power Plants, which is referenced in the regulations themselves.64/ -

12/ 10 C.F.R. S 50.47 (a) (1) .

g3/ 10 C.F.R. S50.47 (a) (2) 14/ NUREG-0654, as cited in the regulations, has been revised f

i and superseded by NUREG-0654, FEM A-REP-1, Rev . 1 (November 1980).

l

i

' NUREG-0654 was prepared by the Joint NRC/ FEMA Steering Committee as guidance for applicant, State, and local officials in developing radiological emergency plans and "will be used by reviewers in determining the adequacy of State, local, and nuclear power plant license emergency plans and preparedness."5E/ Section 50.47 (c) of 10 C.F.R. requires that any failure to comply with the specific requirements of S50.47 (b) be just.ified by a factual i showing that the deficiency in question is insignificant for the activity sought to be authorized. The Commission's regulations contain no general exception for low power operation.

Ignoring this background and the explict. language of the regulations, the licensing board held them inapplicable'to PGandE's low power testing application. Citing a document entitled " Emergency Preparedness," SECY-81-188 (April 22, 1981),

the board rejected the claim that any measure of relief from compliance with the regulations must be obtained un;er S50.47 (c) as the regulations explicitly require, and concluded that a point by point examination of the planning standards of NUREG-06f4, which would be i necessary to obtain an exemption from full

{ compliance with 50.47 under 50.47 (c) (1) is no j longer needed. * * *

[I]t is not the substance of part.50.47 which has been altered (through the SECY document) but only the schedule for implementation. The regulation itself gives no such. schedule. It is contained in NUREG-0737 which does not have the status of regulation.

Thus the Board finds that SECY-81-188 simply establishes new policy to replace old policy which was . . . inadvertently promulgated in l NUREG-0737. The Board sees no reason why the i

g5/ Id. at i.

,3e- - ,, .,- my,-,pr%,_.-,y-3 m,,,,p..,,,w.,_wemq,.g..q% y,ww,.m.m,,m,.,._,,,.w#r,%se,,e.,, m.,e +,. y,m,%,

Commission cannot correct errors in its policy statements when they are discovered. * *

• The Commission's policy of emergency planning far low power testing as currently stated must prevail. Full compliance with Appendix E prior to fuel loading and low power testing is not required. ((/

In place . ae duly promulgated regulatory standard, the licensing aoard then set forth its own amorphous and relatively indefinite test of emergency preparedness:

In view of the foregoing conclusion the Board finds that emergency planning for fuel loading and low opower testing must be sufficient to confer the same level of protection to the public as afforded by full compliance with the regulations at full power operation. f7/

The board's analysis and conclusions are clearly erroneous for several reasons. First, a simple reading of SECY-81-188 demonstrates that the document provides no support for the board's holding. By its own terms, SECY-81-188 merely reinforces the applicability of the exemption staids.cds of 10 C.F.R.

S50.47 (c) . In reference to the NUREG-0737 table indicating that the date of implementation for the revised regulations is prior to fuel load,5E/ the document states:

The staff did not intend, nor does it believe that the Commission intended, to interpret the table appearing in NUREG-0737 with respect to the effectiveness of 10 C.F.R. S50.47 so literally as to eliminate the flexibility provided by 10 C.F.R. SS50.47 (c) and 50.57 (c) . si/

$5/ Partial Initial Decision, supra, at 23 (July 17, 1981).

67/ Id. at 24.

j8/ NUREG-0737, Enclosure 2, at 2-11 (November 1980).

69/ SECY-81-188-Emergency Preparedness, at 2 (April 22, 1981).

6 i

Thus, the document emphasizes the flexibility inherent in

. 5 50. 47 (c) and reaffirms the applicant's right under that i subsection to demonstrate the insignificance of any noncompliance for the activity sought to be authorized. It clearly does not authorize the board's flagrant disregard of the standards embodied 1 in the regulations.

Second, and more important, because it is not itself a regulation, SECY-81-188 could not in any way alter either the j effective date of the regulations or the obligation of the board I

to make specific findings as to each regulatory standard not complied with. Section 50.47 of 10 C.F.R. is a regulation duly l promulgated pursuant to the Administrative Procedure Act and, by

^

its own terms, it became effective on November 3, 1980. SECY 188, on the other hand, is only an NRC Staff memorandum approved ,

I by the vote of the Commission; it has never been published as a proposed rule in the Federal Register, never been submitted for public notice and comment, and never been revised and issued as a j final rule. It cannot, therefore, be interpreted as a binding norm in this proceeding or be applied to alter in any way the express l terms of the validly adopted provisions of 10 C.F.R. S50.47, and 1

the licensing board's attempt to do so is invalid. See, e.g.,

Chamber of Commerce of the United States v. Occupational Safety and Health Administration, 636 F.2d 464, 1980 OSHD 124,596 at 30,191 (D.C. Cir. July 10, 1980); Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1153-54 (D.C. Cir. 1977);

American Iron and Steel Institute v. Environmental Protection Agency, 568 F.2d 284, 292 (3d Cir. 1977); Dow Chemical, USA v.

, - __ . - - - _ - - -- - --- . .- . . _ , _ . _ _ _ ~ _ -- _

t 4

~

Consumer Product Safety Commission, 459 F.Supp. 378, 390 (W.D. La.

1 1978); Crown Zellerbach Corp. v. Marshall, 441 F.Supp. 1110, 1119 7 i

i (E.D. La. 1977); National Retired Teachers Ass'n v. United States Postal Service, 430 F.Supp. 141, 148 (D.D.C. 1977), aff'd, 593 4 F.2d 1130 (D.C. Cir. 1979); United States v. Daniels, 418 F.Supp.

1074, 1079 (D.S.D. 1976); Cerro Metal Products v. Marshall, 467 i F.Suppe 869, 882 (E.D. Pa. 1979).10/

j Third, to permit the board to disregard the applicable j regulatory standards in favor of its own amorphous " equivalent level of protection" test -- whatever that may mean -- would sanction a departure from what the Commission characterized in the regulations themselves as the " minimum requirements for emergency i

Plans for use in attaining an acceptable state of emergency l

i preparedness."21/ Indeed, the board's decision is a complete 1

departure from those requirements. All parties conceded at the I hearing not only that the combined applicant, State, and local emergency plans did not comply with the Commission's revised i

l regulations, but that they do not comply with even one of the I

sixteen regulatory standards set forth in 10 C.F.R. S50.47 (b) and defined in NUREG-0654.12/ In their Proposed Findings of Fact and f Conclusions of Law submitted to the board following the hearing, Joint Intervenors analyzed in detail the evidence adduced as to each of the sixteen S50.47 (b) planning standards, including l

70/ See discussion supra at Point III.B.2.

71/ 10 C.F.R. Part 50, Appendix E, Introduction.

72/ See Joint Intervenors' Exhibit 111; Tr. 10614, 11056, 11062; see also Exhibit E hereto r

& ve-,e-r-.#.-w ---,w%r-,~--i.-,--,-ae-w eg -* esm -w wm e ,- -vew w - +-- ,- w m . . -

. e

• r e w ** v .. . m emW ww+ e*< wwe e we e += +-w<

• g-e a-w-e w , e -r =*w+ ~ w'

numerous citations to testimony or exhibits demonstrating the significant noncompliance with those standards. That discussion, attached hereto as Exhibit E, was not even acknowledged by the board. More importantly, the board made no attempt to address the individual standards or the specific deficiencies under them, even to the extent of the six mile emergency planning zone conceded by PGandE and adopted by the board as reasonable for low power testing. Such an approach renders superfluous of Commission's regulations. Because compliance with all applicable regulations is a mandatory prerequisite to issuance of a license,13/ the board's authorization of low power licensing must be reversed.

2. The Licensing Board Impermissibly Relied on Generalized Estimates of Low ProDability of Accidents in Justifying the Absence of Offsite Emergency Preparedness Instead of requiring PGandE to make the requisite showings under 10 C.F.R. S 50. 47 (c) -- a showing which PGandE did not make -- the licensing board justified its authorization of licensing by impermissibly relying on generalized estimates of the low probability of accidents during low power operations.1S/ This approach disregards the most fundamental lessons learned at TMI i

and undermines the Commission's " defense-in-depth" approach to nuclear safety. Under the Commission's revised emergency planning regulations, one must not only do everything possible to prevent an accident, but one must assume that it will happen and preparo 73/ 42 U.S.C. SS 2233 (d) , 22 3 6 (g) , 2237; 10 C.F.R. S50.57 (a) .

74/ Partial Initial Decision, supra, at 24-35, 50-51 (July 17, 1981).

to respond. As the Kemeny Commission recognized in it Report to the President:

The response to the emergency was dominated by an atmosphere of almost total confusion. There was a lack of communication <

at all- levels. Many key recommendations were made by individuals who were not in possession of accurate information, and those.who managed the accident were slow to realize the significance and implications of the events that had taken place. [I]t is important to reiterate the fundamental philosophy we stated above: One must do everything possible to prevent accidents of this seriousness, but at the same time assume that such an accident may occur and be prepared for response to the resulting emergency. The fact that too many individuals and organizations were not aware of the dimensions of serious accidents at nuclear power plants accounts for a great deal of the lack of preparedness and the poor quality of the response. 75/

Similar recommendations have emanated from within the NRC itself. In its Final Report, the NRC Lessons Learned Task Force recognized that

[e]veryone connected with nuclear power technology must accept as a fact that unusual situations can occur and accidents can happen.

Operations personnel in particular must not-have a mind set that future accidents are impossible. The experience of Three Mile Island has not been sufficient to eradicate that mind set in all quarters and the effects of that experience will fade with time. This is probably the single most important human factor with which this industry and the NRC has to contend. We have no easy answer to suggest, but attitudes, through training and policy actions, must be changed. 76/

Specifically with respect to emergency response planning, the Commission recognized recently in its " Report to 75/ Kemeny Commission Report, supra, at 17 (emphasis added) .

76/ NUREG-0585, at 2-7 (emphasis added).

{

1 Congress on Status of Emergency Response Planning for Nuclear I Power Plants" that

[a]s a result of the accident at Three Mile Island I,TM I) , it became clear that the protection provided by siting and engineered safety design features must be bolstered by the ability to take protective measures during the course of an accident. The accident also j clearly demonstrated that onsite condi~tions i and actions, even if they do not cause l significant offsite radiological consequences, can affect the way the various State and local

' entities react to protect the public from any dangers associated with the accident. 77/

As a factual matter as well, the board's reliance on generalizd risk eosimates and analyses was clearly erroneous.

First, the evidence adduced at the hearing demonstrated that even the release of only a small amount of the fission product inventories present during low power testing could pose a significant health risk necessitating protective actions both i

f i

i 1

1 l

[

i i

i 77/ NUREG-0755, at 1 (March 1981) (emphasis added).

( __ _._,___._ _ _ . . . _ . . ~ _ . _ . . _ . . . . - . . _ . - . _ . _ _ . _ . . _ . . . . _ _ . _ . . _ - . . _ _ _ . _ - _ _ . ~ . .

4 t

4 onsite and off.28/ Second, none of the risk analyses relied upon i

by the board -- those submitted both by PGandE and Staff witnesses

-- included or considered an accident sequence involving containment leakage beyond the design basis values.2E/ In other words, those analyses failed to address or take into account the accident sequence of greatest concern for purposes of emergency

planning -- and which, in fact, is required to be considered by NUREG-0654 -- involving " severe core de' gradation or melt . . .

"8p/ The

[ leading to] [ulltimate failure of containment . . . .

Rogovin Commission explicitly recognized the inadequacies of a 78/ The low power values for the significant radionuclides posing the major short-term health consequences were listed by PGandE witness Dr. Brunot, as follows:

i Nuclide 5% Power (One Month) l I-131 4,500,000 curies I-132 7,100,000 curies I-133 9,400,000 curies I-134 11,600,000 curies I-135 9,100,000 curies 1

i Te-132 7,000,000 curies Xe-132 9,200,000 curies Xe-135 7,400,000 curies Kr-88 4,20',000 curies Brunot Testimony, Table I.

79/ Tr. 10,703, 10,722. The " design basis value" for containment leakage at Diablo Canyon was defined by PGandE witness Brunot as leakage up to one-tenth of one percent for the first 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> and one-twentieth of one-percent thereafter. Id.

80/ NUREG-0654, App. I at 1-18.

4 J

i design basis review:

What these examples demonstrate is that we have come far beyond the point at which the existing, stylized design basis accident review approach is sufficient. The process is not good enough to pinpoint many important design weaknesses or to address all the relevant design issues. Some important accidents are outside or are not adequately assessed within the " design envelope"; key systems are not " safety related"; and integration of human factors into the design i

review is grossly inadequate. gl/

Third, the board noted extensively the testimony of PGandE witness Brunot despite his reliance on various Diablo Canyon safety analyses, including the Diablo Canyon FSAR.SSI Those analyses are seriously deficient, however, as a basis for determining risk because they utilize the single failure criterion, while the TMI accident was a multiple failure accident. Indeed, PGandE witness Patterson admitted that the Diablo Canyon FSA.t had not been revised to include a "Three Mile Island type of accident."EE/

Thus, those analyses do not even consider tha kinds of accident sequences which the Rasmussen and Rogovin Reports have found to 4

81/ Rogovin Commission Report, supra, at 150.

g2/ Partial Initial Decision, supra,-at 24-28 (July 17, 1981).

83/ Tr. 10652.

pose the " greatest risk of an accident."ES/

The licensing board failed even to address any of these matters, instead accepting uncritically and at face value the

vague estimates of low probability offered by the Staff and PGandE witnesses.$5/ Such reliance constitutes, in effect, an imper-missible attack on the Commission's emergency planning regulations themselves in that its purpose and effect is to permit operation J

, H4/ The Rogovin Commission found as follows:

l

[The Rasmussen Report] shows that the

arcatest risk of an accident comes not from the

- design basis accidents, such as the large loss-of-coolant ~ accidents, but from the small loss-of-coolant accidents and relatively routine transients compounded by multiple failures or human error, having a higher probability of occurring than a large pipe break. These types of potential accident sources have, however, been all but ignored by

' the NRC in the regulatory review process. The Three Mile Island accident involved, of course, all of the four elements mentioned: a routine I loss-of-feedwater transient, which should have

' been easily handled by plant safety systems; a stuck-open valve, causing a small loss-of-coolant accident at a confusing time and in an j

unexpected place, the top of the pressurizer; misleading instrumentation; and operator error in cutting down the effectiveness of the emergency core cooling system.

Id. at 148 (emohasis in original).

35/ Partial Initial Decision, supra, at 31-32 (July 17, 1981). Both Dr. Brunot, for PGandE, and Mr. Lauben, for the Staff, admitted that their risk analyses were based on their own judgment rather than on precise mathematical calculations. (Tr.

10626, 11131.) Dr. Brunot admitted that "there was no precise I

determination on any of these particitlar [ risk increase and risk

." (Tr . 10 6 26. ) Similarly, although l reduction] factors . . .

arguing that consequences are proportional to cuch factors as source term, meteorology, weather conditions, the nature of the plume release, and the dispersion characteristics and decomposition velocity of the plume, Mr. Lauben admitted that "I i personally have not involved myself in these things. . . .

(Tr.

11136,)

l i--,,- , , - + , - - + ,-, yr,,-c-ve--,e. r,- -,-.,~%-,-my.,,,,-,w..,w,--w,-v.r-., ,~,,-% --- .+,r..--- ,e, -,,-c , --.% ,-ww- .,. --,4 ----,w-- r n, . , - - - - -

of the Diablo Canyon facility despite noncompliance with the regulations. In In the Matter of Vermont Yankee Nuclear Power

' Corporation (Vermont Yankee Nuclear Power Station) , ALAB-138, RAI-73-7, S 'Z 0- 5 28- 29 (1973), the Appeal Board properly rejected an attempt to rely on Staff estimates of the low probability of accidents as a substitute for the required compliane, with the regulations. The Appeal Board observed:

[N]either the applicant nor the Staff should be permitted to challenge applicable regulations, either directly or indirectly.

• *

• Nor can they avoid compliance by arguing that, although an applicable regulation is not met, the public health and safety will still be protected. For, once a regulation is adopted, the standards it embodies represent the Commission's definition of what is required to protect the public health and safety.

[W]e reject at the outset two of the Staff's arguments in support of contirued facility operations. The first is a factual one . . .

that there is a low probability of a loss-of-coolant accident in the time required for the reopened proceeding. That argument may be factually sound, but it constitutes an indirect challenge to the applicable criteria, in that it would permit licensing of a non-complying reactor. Consequently, we need not consider the factual questions concerning the degree of probability of a LOCA in the next few months.

Id. at 528-29 (footnotes omitted) (emphasis added).

That holding is applicable here. The licensing board's reliance on the Staff and PGandE risk estimates to justify noncompliance with the Commission's omergency planning requirements violates the Atomic Energy Act and, therefore, its l

decision must be reversed.

l .--

.- - . .__ _ . - .-- -. - . = - . _ . - _ = _ . - . _ -

3. 'The Licensing Board Failed to Require that the Existing

' Diablo Canyon Emergency Plans Consider the Effects of an Earthquake i .

The evidence at the hearing was uncontradicted and all i

parties conceded that the existing applicant, State, and local 4

l emergency plans for Diablo Canyon fail to consider and allow for j

the effects of a major earthquake on the Hosgri Fault occurring

! simultaneously with a radiological emergency at the plant.8]/

l Except for noting briefly that coasidera' tion of earthquakes will be required by the NRC prior to full power operation,E1/ the board did not address this failure.

There is no rational basis for a distinction between low i

l and full power operation with respect to the need to consider the effects on implementation of emer<jency plans of a major earthquake occurring simultaneously with a radiological emergency at the r

plant. At the hearing, neither.the Staff nor PGandE presented any

. factual basis to conclude that such effects would be reduced at

{~ power levels below Diablo Canyon's full capacity. Particularly in light of the greater seismic risk associated with nuclear plants

,' in California and the continued importance of seismic safety in this proceeding, the absence of any analysis of and preparation for earthquake effects on emergency planning both on- and off-cite constitutes a critical deficiency in emergency preparedness at f

i l

l 31/ Jorgensen, at 2; Sears, at 7; Tr. 11060, 11283, 10878-79.

l 37/ Partial Initial Decision, supra, at 47.

! i 4

f

4 Diablo Canyon.00/

In a recent decision involving a nuclear plant which, like Diablo Canyon, is located near an active earthquake fault, an NRC licensing board held that the Commission's obligation under 10 C.F.R. S 50.47 (a) (1) -- to determine whether adequate protective measures can and will be taken in the event of a radiological l

emergency -- requires that an earthquake more severe than the safe 4

88/ The NRC has recognized this fact by its December 16, 1980 request that PGandE evaluate "the potential comlicating factors which might be caused by earthquakes which either initiate or follow the initiation of accidents." (J . I . Exh. 117, at 1.)

Specifically, the evaluation must consider two general cases

First, a severe earthquake at the site which could disrupt normal and auxiliary services an6 thereby cause the plant to be in a degraded mode should be considered. * *

• The facility plan should be capable of functioning under such conditions. Of principal importance under such conditions would be augmentation of the facility staff and ,

supporting resources to assure that a more

! severe accident did not develop. Factors to be considered for your facility plans should l

> include the impacts due to potential disruption of communications networks and transportation routes. Your concern should be the availability of resources and personnel to augment onsite staff, transit to and among emergency response facilities and communications with offsite organizations.

The second case which should be considered is an earthquake offsite which disrupts communications networks and transportation routes in particular locales. In California, such occurrences appear to be frequent enough to warrant consideration in your emergency plans. The procedure to be used to determine the protective actions recommended to offsite authorities should be revised to incorporate consideration of earthquake effects offsite.

Evacuation time estimates should incorporate consideration of local transportation route disruption. (Id.)

shutdown earthquake ("SSE") be postulated for the purposes of emergency planning.81/ The board stated further that (i]n a seismic area like California, an Applicant and nearby jurisdictions can at the very least be required to consider what they would do in such an event, and to make appropriate plans consistent with reasonable cost projections. 90/

Given the exceptional controversy surrounding the seismic safety of the Diablo Canyon plant, that reasoning is equally applicable here.

Nevertheless, the licensing board failed completely to give any reason for its apparent conclusion that the total absence of consideration of earthquake effects on emergency planning need not be corrected prior to issuance of a low power operating license. The board's failure to supply even a minimal explanation of its reasons for rejecting competent evidence on an issue of critical importance violates established Commission precedent. In the Matter of Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977).

On either of the foregoing grounds, the licensing board's July 17 decision must be reversed.

89/ In the Matter of Southern California Edison Company (San Onof re Nuclear Generating Statior , Units 2 and 3) , Nos. 50-361-OL, 50-362-OL, Order (Passing on the Board's Motion on Issue Concerning Earthquakes and Emergency Planning), at 2-3 (July 29, 1981).

90/ Id.

__ . . . =. .

i e .

D. The Licensing Board Erred in Failing i to Require Compliance With the National Environmental Policy Act Prior to

• Authorizing Low Power Operation l The licensing board's authorization of licenses for low power operation violates the National Environmental Policy Act

("NEPA") in two principal respects. First, the consequences of a Class 9 accident at Diablo Canyon have never been addressed by the applicant or by the Staff. Although the Commission had in the I past excluded consideration of core celt accidents on the premise that their occurrence was of such low probability that neither NEPA nor the AEA required their consideration, the TMI accident 4 destroyed that premise by demonstrating that Class 9 accidents are l far more than a mere theoretical probability. Indeed, on June 13, 1980, the Commission issued a Statement of Interim Policy requiring that environmental impact statements include consideration of Class 9 accident sequences.E1/ Notwithstanding i this change of policy, the licensing board on June 19, 1981 --

over two years af ter the TMI accident -- rejected Joint Intervenors ' May 9, 1979 motion for such consideration in this i

91/ The Commission's Interim Statement, entitled " Nuclear

Plant Accident Considerations Under the National Environmental Policy Act of 1969" (45 Fed. Reg. 40101), provided that environmental impact statements shall include coordination of the site-

. specific environmental impacts attributable to i accident sequences that lead to releases of radiation and/or radioactive materials, including scquences that can result in inadequate cooling of reactor fuel and to

> melting of the reactor core.

The Commission characterized its former policy excluding consideration of Class 9 accidents as " erroneous." 45 Fed. Reg. at 40103.

i

, - - . - - , , ,-.,---w..,,,-,,,w,, -,-c , . , -,----.-,--%,_-~,,__,-,.--,-..-.v-.--~~.-+,.,~.--.e.., ..-. ,, ,,- -- - #m . , , , ---,-

case.E2/

Second, neither an EIS nor an environmental impact appraisal has been prepared to consider the special environmental effects of low power testing at Diablo Canyon. Because licensing of nuclear facilities constitutes major federal action within the meaning of NEPA,E2/ the preparation of an adequate EIS is a mandatory prerequisite to any decision by the Commission concerning a license application. Moreover, the failure of the licensing board to require either an EIS or an environmental impact a:"raisal violates the explicit requirement of 10 C.F.R.

S 51. 5 (b) and (c) that either an EIS or a negative declaration and environmental ;mpact appraisal be prepared prior to "[i]ssuance of a license to operate a power reactor . . . at less than full power . . . ." The licensing board's denial of Governor Brown's motion -- supported by Joint IntervenorsES/ -- seeking compliance with this unambiguous requirement mandates denial of the requested license. 42 U.S.C. SS 2233 (d) , 2236(a), 2237; 10 C.F.R. 5 50. 57 (a) l 92/ In the Matter of Pacific Gas and Electric Company (Diablo i Canyon Nuclear Power Plant, Units 1 and 2), Memorandum and Order l

Danying Joint Intervenors Motion to Reopen Environmental Record for C,nsideration of Class Nine Accidents, NRC (June 19, 1981). Joint Intervenors also submitted a contention in the-low

power test proceeding seeking such consideration. The licensing board, however, has never explicitly ruled on the admissibility of that contention.

i 93/ See Vermont Yankee Nuclear Power Corporation v. National

! Resources Defense Council, Inc., 435 U.S. 519, 526-27 (1978);

Scientists' Institute for Public Information, Inc. v. United States Atomic Energy Commission, 481 F.2d 1079, 1085-87 (D.C. Cir. 1973);

Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1115-16 (D.C. Cir. 1979),

I cert. denied, 404 U.S. 942 (1972); 40 C.F.R. S1508.18 (b) (4) .

94/ See, e.g., Joint Intervenors' December 18, 1980 Response l to Governor Brown's Motion to Stay Proceeding.

, _ _ _ _ _ _ _ _ . - _ . . - - _ _ . _ _ _ . _ _ . _ _ . . , . - _ . . - - _ _ _ . _ _ _ _ _ , _ _ . _ _ . . _ . - ~ . _ . _ _

l and (c).EE/

4 The federal courts have consistently prohibited interim i licensing of nuclear facilities prior to compliance with NEPA in order to prevent " irretrievable commitments of resources which would serve to tip the balance away from environmental concerns and prejudice the final agency decisions." Natural Resources Defense Council v. United States Nuclear Regulatory Commission, 539 F.2d 824, 843-44 (2d Cir. 1976), vacated for reconsideration of mootness, 434 U.S. 1030, 98 S.Ct. 759 (1977); Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287 (D.D.C. 1971).

In Izaak Walton League of America v. Schlesinger, supra, issuance by the Commission of an interim license for low power operation of a nuclear reactor was enjoined pending completion of a NEPA statement. The court reasoned as follows:

For environmental purposes the interim permit could possibly have the same adverse effects as a full operating permit for a limited period of time. * *

• What the AEC has done is to conceivably preclude any modification in an existing power plant ready for operatien. Thus the " licensee will have to undergo a major expense in making alterations in a completed facility or the environmental harm will have to be tolerated.

l It is all too probable that the latter result i

i i

95/ The existence of an EIS for full power licensing does not obviate the need for an EIS or environmental appraisal for low l power operation. Firct, 10 C.F.R. S 51. 5 (a ) contains an EIS provision for full power operation entirely separate from the low power requirement in 10 C.F.R. S51.5(b). Second, the full power j EIS fails to address the danger that low power operation may I contaminate the reactor, thereby complicating essential

, modifications of plant design or prejudicing the full and l deliberate consideration of unresolved safety contentions raised in i

opposition to the fell power application. Third, the EIS fails to weigh the costs and benefits of low power testing, to consider possible alternatives, or to address the need of such a program, if any, at this time.

l l

'l would come to pass." Calvert Cliffs' (449 F.2d 1128).

Icl. at 294. In Natural Resources Defense Council v. United States Nuclear Regulatory Commission, supra,-the Second Circuit Court of

. Appeals enjoined the interim licensing of mixed-oxide fuel i activities on the ground that the draft environmental impact statement was insufficient for licensing purposes. In the course of its decision, the court reviewed a number of decisions in which

" interim activities" were restrained because "sucl. activity i

? involved irretrievable commitments of resources which would serve to tip the balance away from environmental concerns and prejudice the final agency decisions." Id. at 843-44. Noting that the

" interim activity is clearly tied to the anticipated wide-scale use and would commit substantial resources to the mixed-oxide fuel technology," the court stated that taking such action "before the

completion of the environmental impact analysis has been branded a i ' mockery' of the procedural mandates of NEPA." Id., at 844.

These decisions are controlling here. Low power testing at Diablo Canyon is clearly tied to the ultimate goal of full l

power operation, and it has no utility independent of that goal.

Because of the risk of contamination of the reactor which low l

' power licensing poses -- especially in the event of a major l

earthquake or accident -- it involves an irretrievable commitment of resources if such contamination sho*ld u foreclose or l substantially increase the cost of' essential modifications of plant design or installation of additional safety features. In ,

contrast, the analyses which NEPA and the Commission regulations require, and the licensing board and the NRC Staff have.

disregarded, do not entail either significant resources or time and would serve the paramount public interest in improving plant safety and preventing nuclear accidents. Compliance with NEPA is clearly appropriate in this instance.

Therefore, until the procedural mandates of NEPA and the Commission's own regulations have been satisfied, licensing of Diablo Canyon is unlawful and the licensing board's July 17 decision must be reversed.

E. The Licensing Board's Summary Disposition of Joint Intervenors' Contention Thirteen Regarding Ret.ctor Vessel Level Indication Was Arbitrar y and Capricious By order dated April 30, 1981,25/ the licensing board granted summary disposition of Joint Intervenors' contention thirteen, regarding reactor vessel level indication. The board's stated reason for its decision was, in essence, its belief that all parties were concerned only about the timing of ir.sta11ation of PGandE's proposed system. Because PGandE submitted an affidavit certifying that the system would be installed prior to fuel loading, the licensing board granted summary disposition.21/

The licensing board's ruling was clearly erroneous and 96/ In the Matter of Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Memorandum and Order Granting PGandE's and NRC Staff Motions for Summary Disposition of Joint Intervenors' Contentions 5 and 13, at 6 (April 30, 1981).

97/ Id. By Motion dated May 7, 1981, Joint Intervenors sought reconsideration of the licensing board's disposition of contention thirteen. That motion was denied by the board on May 13. In the Matter of Pacific Gas and Electric (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , Memorandum and Order Denying Motions for Reconsideration of Contention Thirteen (May 11, 1981).

must be reversed. 'ihe concern underlying and expressly stated in Joi.nt Intervenors' contention thirteen is and has always been the need for in:trumentation to monitor variables as appropriate "to ensure adequate safety" and "to directly measure the desired variable."28/ At no time have Joint Intervenors stipulated that the installation prior to fuel loading at Diablo Canyon of PGandE's proposed Subcooling Margin Meter and Reactor Vessel Level Instrumentation System, developed by Westinghouse, would satisfy the contention in question. Indeed, the adequacy of that proposed system is a clearly disputed issue herein.

Throughout this proceeding, the mutual understanding of all parties has been that contention thirteen is directed to the adeauacy of the Diablo Canyon instrumentation rather than simply 98/ Contention thirteen provides as follows:

NRC regulations require instrumentation to monitor variables as appropriate to ensure adequate safety (GDC 13) and that the instrumentation shall directly measure the desired variable. IEEE 279, Section 4.8, as incorporated in 10 C.F.R. 50. 55a (h) , states that:

To the extent feasible and l

practical protection system inputs shall be derived from signals which are direct measures of the desired J

variables, f

Diablo Canyon has no capability to directly measure the water level in the tuel assemt lies.

The absence of such instrumentation delayed l recognition of a low-water level condition in the reacter for a long period of time. Nothing l proposed by the Staff would tequire a direct measure of water level or provide an equivalent level of protection. The absence of such l

instrumentation poses a threat to public health and saf et-j l

the timing of installation of PGandE's proposed system. This is evident from the interrogatories and requests for admissions filed by the Staff on February 24, 1981, the interrogatories filed by l

PGandE on February 27, 1981, Joint Intervenors' March 16, 1981 and

! March 18, 1981 responses to those discovery requests, and Governor i

Brown's March 16, 1981 and March 19, 1981 responses to similar i

discovery requests. The Statement of Material Facts filed by the i

.'taf f in connection with its summary disposition motion concerned ths substantive merits of the issue rather than the projected date of installation of the Westinghouse system. Similarly, the i Statement of Disputed Facts filed in response by Joint Intervenors and by Governor Brown raised numerous factual issues regarding possible deficiencies of the yet uatested system.EE/ Similarly, the technical affidavit submitted in support of Joint Intervenors' opposition to the motions for summary disposition was directed solely to the adequacy of the PGandE system, rather than the timing of its installation.

In light of this clear understanding of the parties, the

! licensing board's Erbitrary assumption that contention thirteen concerned only the date of installation of the system proposed by f PGar.dE was plainly improper, arbitrary, and without factual support in the record. Indeed, Joint Intervenors could not have i

agreed that PGandE's system was an adequate response to NUREG-

.1 0737, Item II.F.2, because neither they nor their experts were i

99/ PGandE submitted no Statement of Material Facts, thus rendering its summary disposition motion procedurally defective.

See Joint Intervenors' Response in Opposition to NRC Staff and l Pacific Gas and Electric Company Motions for Summary Disposition, at Point I (April 27, 1981).

t

- . _ , - . _ . -. y,_,,-_.,_,,._m ,,,_y,,,,____,.,,,,,,,,,,,,.-,_,__,m_.,,mm_.,__.__- ,__--._____,,_.--.~m_,. ~,_

ever given an opportunity to observe its operation or even to see the allegedly proprietary documentation regarding its design and testing to date. That being the case, there has been no demonstration of any kind that PGandE can or will comply with NUREG-0737 Item II.F.2 prior to fuel loading at Diablo Canyon.

Clear issues of material fact have been raised with respect to Joint Intervenors' contention thirteen, all of which the licensing board improperly ignored. Its disposition of contention thirteen was arbitrary, capricious, and based on a factual assumption without support of any kind in the record.

Accordingly, its decision must be reversed.

F. The Licensing Board's Conclusion Regarding Relief and Safety Valve Testing Was Clearly Erroneous On July 16, 1981, the licensing board was served by hand with a Board Notification (attached hereto as Exhibit F) from ,the NRC Staff informing the members of the board that the completion date for NUREG-0737 relief and safety valve performance testing would not be July 1, 1981, as required by NUREG-07 37 Item II.D.1 and as promised at the Diablo Canyon low power testing hearing in May, but would be delayed at least for several weeks.

Apparently ignoring this notification, the licensing board nonetheless concluded in its July 17, 1981 Partial Initial Decision that because "the testing of relief and safety valves will be completed by July 1, 1981, . . . the only remaining issue under Contention 24 is whether the block valve testing should also

predate fuel loading."100/ Thus, the board resolved all issues raised regarding relief and safety valve testing on the ground that such testing would be completed by July 1, 1981, notwithstanding the board's prior knowledge that such testing had in fact not been completed by that date.

On July 24, 1981, the board was further informed by letter from Staff counsel that " testing is taking longer than anticipated and it is now expected that the program will require an additional four to eight months." (Exhibit G hereto.)

j (Emphasis added.) Under no circumstances, therefore, will the testing be even close to completion by the time fuel loading and low power testing are likely, under current predictions, to commence.

To date, the licensing board has dor,e nothing to correct its decision, nor, apparently, does it have any intention of doing so. In light of the fact that its resolution of all issues regarding relief and safety valve testing was based solely on the assumed July 1 completion date, the board's refusal even to acknowledge the total inaccuracy of its stated reason for decision is shocking. Joint Intervenors contended at the low power test hearing that completion of valve testing should precede licensing; indeed, the. board recognized this in its decision.101/

Its disposition of that contention, therefore, on the assumption of a July 1 completion date, a..ter having been informed by the Staff the previous day that the assumption wa. erroneous, is at 100/ Partial Initial Decision, supra, at 59.

101/ Id.

best unsupported by the facts, arbitrary, capricious, and clearly deserving of reversal by the Appeal Board.

This is a matter fundamental to Joint Intervenors' contention 24.102/ The TMI accident demonstrated clearly the significance of relief and safety vo'.ves to the safety of plant operation and gave both the Commission and the nuclear industry as a whole a new awareness of the " fairly high probability" that valves designed for steam service could be subjected to liquid and transition flow conditions. (Tr. 11218.) In light of that experience, the Commission incorporated comprehensive relief and safety valve testing requirements into NUREG-0737 and specified July 1, 1981 as the completion date.103/

It now clearly appears that those tests will not be completed until the end of 1981 at the earliest. Because the licer. sing bosrd's decision was based on the assumption of completion of the testing on July 1 in compliance with NUREG-0737, its decision must be reversed.

102/ Contention 24 provides as follows:

i j Reactor coolant system relief and safety valves form part of the reactor coolant system pressure boundary. Appropriate qualification testing has not been done to verify the capabilities of these valves to function during normal, transient and accident conditions. In the absence of such testing and verification, compliance with GDC 1, 14, 15 and 30 cannot be found and public health and safety are endangered.

103/ NUREG-07 37, Item II.D.l.

i IV. CONCLUSION For the reasons stated above, Joint Intervenors respectfully request.this Appeal Board:

(1) to reverse in all respects the July 17, 1981 Partial Initial Decision of the licensing board; (2) to reverse in the respects discussed above each of the other decisions of the licensing board issued during the course of this low power test

! proceeding and appealed herein; and (3) to hear oral argument on the issues discussed herein.

Dated

September 2, 1981 f Respectfully submitted, i

JOEL R. REYNOLDS, ESQ.

OHN R. PHILLIPS, ESQ.

f Center for Law in the l

i Public Interest 10203 Santa Monica Blvd.

Fifth Floor Los Angeles, CA 90067 DAVID S. FLEISCHAKER, ESQ.

1736 Eye Street, N.W.

Washington, D.C. 20006 (202) 638-6070 f

l By C M N _

l

[yDEL R.'R2YMOLDS Attorneys for Joint Intervenors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

j

ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APPELBERG

- JOHN J. FORSTER Of Assistance:

--Sharon Goldman Dee Hayashi l

I l

l l

l l

i

UNITED STATES OF N4 ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

)

In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-27 5 0.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) ) (Low Power Test

) Proceeding)

)

CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of September, 1981, I have served copies of the foregoing JOINT INTERVENORS' BRIEF IN SUPPORT OF EXCEPTIONS, mailing them through the U. S. mails, first class, postage prepaid.

Nunzio Pallodino, Peter A. Bradford,

Chairman Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Victor Gilinsky, John F. Ahearne, Commissioner Commissioner U.S. Nuclear Regulatory U.S. NLclear Regulatory Commission Commission 1717 H Street, N.W. 1717 H Street, N.W.

Washington, D.C. 20555 Washington, D.C. 20555 Thomas Roberts, Commissioner U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555 l

l

Richard S. Salzman, William Olmstead, Esq.

Chairman Marc R. Staenberg, Esq.

Atomic Safety & Licensing Edward G. Ketchen, Esq.

Appeal Board Office of the Executive Legal U.S. Nuclear Regulatory Director - BF.TH 042 Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Dr. W. Raed Johnson Atomic Safety & Licensing Nancy Culver Appeal Board 192 Luneta U.S. Nuclear Regulatory San Luis Obispo, CA 93401 Commission Washington, D.C. 20555 11r . Fredrick Eissler Scenic Shoreline Preservation Dr. John H. Buck Conference, Inc.

Atomic Safety & Licensing 4623 More Mesa Drive Appeal Board Santa Barbara, CA 93105 U.S. Nuclear Regulatory Commission Sandra A. Silver Washington, D.C. 20555 1760 Alisal Street San Luis Obispo, CA 93401 Admin. Judge John F. Wolf, Chairman Gordon Silver Atomic Safety & Licensing 1760 Alisal Street Board San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission David S. Fleischaker, Esq.

Washington, D.C. 20555 1735 Eye Street, N.W.

Washington, D.C. 20006 Glenn O. Bright Atomic Safety & Licensing Bruce Norton, Esq.

Board 3216 N. Third Street U.S. Nuclear Regulatory Fuite 202 Cc= mission Phoenix, Arizona 85012 Washington, D.C. 20555 Mr. Yale I. Jones, Esq.

Dr. Jerry R. hiine 100 Van Ness Avenue Atomic Safety & Licensing 13th Floor Board San Francisco, CA 94102 U.S. Nuclear Regulatory Commission Andrew Baldwin, Esq.

Wasnington, D.C. 20555 Friends of the Earth 124 Spear Scree" Docket & Service Branch San Fran6isco, CA 94105 Office of the Secretary U.S. Nuclear Regulatory Harry M. Willis, Esq.

Commission Seymour and Willis Washington, D.C. 20555 601 California Street Suite 2100 San Francisco, CA 94108

~ ~

P rs. Raye Fleming Janice E. Kerr, Esq. 1920 Mattle Roau Lawrence Q. Garcia, Esq. Shell Beach, CA 93449 J. Calvin Simpson, Esq.

California Public Utilities MHB Technical Associates l7 3 Hamilton Avenue 52 6 uilding g 350 McAllister Street San Jose, CA 95125 San Francisco, CA 94102

1. 1. 1 3 "#9 #

Malcolm H. Furbush, Esq. elegram T une Vice President and General g g San Luis Obispo, CA 93402 Ph p iT Crane, Esq.

Pacific Gas & Electric Company Byron Georgiou, Esq.

Sanhr isc CA 94106 *fheG e r State Capitol Building Arthur C. Gehr, Esq. Sacramento, CA 95814 Snell & Wilmer 3100 yalley Center Lawrence Coe Lanpher, Esq.

Phoenix, Arizona 85073 Hill, Christopher & Phillips 1900 M Street, N.W.

Washington, D.C. 20036 W. y&N

[/ JOEL Bf] REYMOLDS, ESQ.

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EX':IBIT A: COMMISSION ORCER (April 1, 1981)

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cockm3 UNITED STATES OF AMERICA Il typ;FO NUCLEAR REGULATORY COMMISSION APR 11981>

D Off:e cf the Ech7 0;*UM 5 "' 8 CCMMISSIONERS: En :5 s

Joseph M. Hendrie, Ch airman og l Victor Gilinskv Peter A. Bradford 8[j John F. Ah earne 4pp' IS$f

)

In the Matter v2 )

)

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

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

ORDEP .

CLI-81-$

The Commission has reviewed the Atomic Safety and Licensing Board's Prehearing Conference Order dated February 17, 1981, as well as the underlying papors and oral argument, and determinined that additional Commission guidance, consistent with its Revised Statement of Policy, CLI-80-42, 12 NRC (1980), needs to be provided on litigation of Three Mile Island-(TMI) accident related issues in licensing proceedings. Tae Commission recognizes th a t this guidance could lead to reconsideration of some of the various rulings contained in th e February 17, 1981 Order. In providing this guidance the Ccomission is exercising its inh e r e nt supervisory

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authority over pending adjudications.1! See Public Service Co.

of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977).

1. The Board Shculd Rule Prcmptly on Motions for Fuel Loading and Low Power Testino Pursuant to 10 CFR 50.57(c), th e filing of a motion for a partial initial decision on fuel loading and low power testing requires an initial determination by the Licensing Board on whether the evidentiary record compiled to that point is adequate for such a partial decision. 10 CFR 50.57(c) does not generally contemplate tha t a new evidentiary record, based on litigation of new contentions, would be compiled on che motion for fuel loading and low power testing.

When the record has been closed but motions to reopen have been filed, the I-icensing Board should decide whether the record must be reopened for new evidence directly relevant to the fuel loading and low power licensing request. Decisions l on full power issues associated with the motion to reopen could be postponed until later.

2. The Record Should Not Be Reopened Absent a Showino th a t Significant New Evidence Which Would Affect th e Decision Is Available As we stated in the Revised Policy Statement, where th e 1

evidentiary record on safety issues has been closed, l 1/ The Commission is aware of the various participantr ' requests for certification or directed certification to STe Commission regarding the Februa ry 17, 1981 Prehearing Conference Crder.

These motions appealing an interlocutory order are not arovided for in the Commission's Rules of Practice and are In issuing this Order accordingly denied. 10 CFR 2.730(f).

the Commission . is exe rcising its authority sua sponte. The Union of Concerned Scientists' Recuest to Participate as .

r I (

3 the record should not be reopened on TMI-related issues relating to either low or full power absent a showing, by the moving party, of "significant new evidence not included in the record, daat materially af fects the decision. " This is in accord with longstanding Ccamission practice. E.g.

Kansas Gas & Electric Co., et al. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978). We emphasize dhat bare allegations or simple submission of new contentions is not sufficient. Only significant new evi-dence requires reopening. Of course, in moving to reopen, a party need not supply written testimony of independent experta, but is free to rely on admissions and statements from applicant and NRC staff and official NRC documents or other documentary evidence.

3. Where A Party Can Adduce Significant New Evidence That an NRC Regulation Would Be Violated by Plant Operation, th a t i

Contention Should Be Admitted Notwithstanding the Fact th at

! this Ma tter Is Not Addressed in NUREG-0737 and 0694 Parties are generally free to raise issues of compliance with NRC regulations, subject to 10 CFR 2.714 specificity and lateness requirements, where applicable, and standards for reopening records, where applicabic. This holds true for TMI-related issues, and nothing in the Revised Policy Statement affects th is . Th u s , if a party comes forward on a timely basis with significant new TMI-related evidence indicating daat an NRC safety regulation would be violated by plant operation, we believe th a t th e record should be reopened notwithstanding th a t the noncompliance item is not

. _ . . . -- _ _ _ _ . ~ .

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3 A

discussed in NOREG-0737 and 0694. However, the parties are required to make the initial case that significant new evidence is available, not merely make claims to that -

effect.

4. Procedures for Arguing that there is Insufficient Protection to the Public Despite Compliance with All NRC itegula tions Where the new evidence raises no issue of compliance but rather questions whether there is adequate protection despite compliance with all applicable regulations, a party has two procedural options under the Revised Statement of Policy. First, a party may challenge the sufficiency of an item in the NUREG documents. However, the scope of the inquiry under this option is limited to the particular safety concerns that prompted the specific " requirements" in NUREG-0 6 9 4 and 0737. What we had in mind was allowing a party to focus on the same safety concern that formed the basis for the NUREG requirement and litigate the issue of whether the NUREG "requ iremen t " is a sufficient response to that concern. -2/ Contentions which address a safety concern

-2/ For example, the Item I.A.l.3 of NDREG-0737, which deals with shift manning and imposes additional requirements above and beyond ,10 CFR 50. 5 4 (k) , deals with the safety concern that there must be adequate expertise in the control room at all times to cope with any accident or unexpected event.

The concern does not relate to the general design of the control room or to the need for specific control room equipment. Thus, a contention which purports to challenge the sufficiency of the shift manning requirement would have to be based on the argument that this requirement was inadequate to deal with control room staffing, and a challenge to Item I. A. l . 3 which focused on control room design and equipment would'not be permissible.

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not copaidered in NOREG-0694 and 0737 shall not be enter ~

tained as challenges to the sufficiency of those require-ments. Second, Where the contention or new evidence cannot be associated with a safety concern identified by NOREG-0694 or 0737, 10 CFR 2.758 may be used to bring the matter to the Commission's attention without prior. litigation on the merits. In this situation, a party must first make a prima facie case to the Board that application of a given rulu in this particular proceeding would not serve One~ purpose for which daat rule was adopted. If the party is able to make this case, the Commission will determine whether that rule will be waived or an exception made from its requirements in that case.

We note that quite apart from the procedures of 10 CFR 2.758, parties are always free to bring to the attention of i

the Commission any matter within its jurisdiction. This course would be available to a party even khere a Board had ruled that the party had not made the prima facie case required by 10 CFR 2.758. In such cases, the Commission is under no obligation to respond to the matter.

In addition, of course, the specificity and lateness requirement:

of 10 CFR 2.714 must be satisfied, where applicable, and the standards for reopening records must be satisfied, wh e re applicable. Th us, to have a late filed contention admitted, th e following factors must be considered:

i t o .

6 (i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the the petitioner's interest will be protec eed.

(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issue or delay the proceeding.

In addition, the proponent of reopening the record must

o. resent sianificant new information, a requirement vnicn could be satisfied by reference to new information huuREG-0737. Finally, it must be shown that the new information would have caused a different result had it been considered originally.

It is so ORDERED.

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[ For; the Ccnrai' sion

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SAMUEL J.~CHILK Og . Secretary or, the Commission 9.,%', .%z g[2Lf % .i;-

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'O v 4hsg 5 Dated at Washington, D.C.

s l the ICr day of April, 1981.

h

t f, EXHIBIT B: JOINT INTERVENORS' RESPONSE IN OPPOSITION TO NRC STAFF'S AND PACIFIC GAS AND ELECTRIC COMPANY'S MOTION FOR RECONSIDERATION, pp. 8-20 and attached affidavit of nuclear consultant Gregory C. Minor (April 22, 1981)

t ,,

4 II JOINT INTERWNORS' CONTENTIONS PREVIOUSLY REJECTED BY THE LICENSING BOARD ARE PROPERLY ADMISSIBLE IN THIS PROCEEDING A. Standard of Admissibility In its February 13, 1981 Prehearing Conference Order, the lisensing board rejected, among others, Joint Intervenors' contentions 10, 12, 18, 20, 21, and 23 on the ground, essentially,

~

that they had an insufficiently direct relationship to a specif.ic

! After reviewing that order, requirement contained in NUREG-0737.

the Commission determined that additional guidance was necessary with respect to litigation of TMI-related issues in licensing proceedings, and it acknowledged that this guidance could lead to reconsideration of some of the rulings contained in the licensing board's order.b! In its April 1 Order, the Commission considered and resolved the essential question whether, to be admitted in a licensing proceeding, a TMI-related contention must bear a direct relationship to a particular MUREG-0737 requirement. In concluding 8/ The licensing board also rejected Joint Intervenors' contentions 3, 6, 7, 8, 9, 14, 15, 16, and 17 for the same reason.

Joint Intervenors continue to believe that each of the rejected contentions raises serious safety questions and that their Due to financial and manpower rejection by the board was improper.

limitations, however, Joint Intervonors have been compelled in this low power proceeding to pursue further only thoseAccordingly, contentions having the clearest nexus with low power operation.

we urge the board to adopt contentions 6, 7, 8, 9, 14, 15, 16, and 17 as board issues.

l 9/ Commission Order, at 1 (April 1, 1981).

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that it did not, the Commission distinguished between significant new evidence that an NRC regulation would be violated by plant operation -- -- in which case no relationship to NUREG requirements need be demonstrated for admission of the contention -- and signi-ficant new evidence that, despite compliance with all regulations, I there is insufficient protection to the public -- in which case the contention must relate to the same basic " safety concern" upon which a particular MUREG requirement was based. The Commission expressed its intention as follows:

[Ilf a party comes forward on a timely basis with significant new THI-related evidence indicating that an NRC safety regulation would be violated by plant operation, we believe that the record should be reopened notwithstanding that the noncompliance item is not discussed in NUREG-0737 and 0694.

However, the parties are required to make the initial case that significant new evidence is available, not merely make claims to that effect.

Where the new evidence raises no issue of comoliance but rather questions whether there is adequate protection despite compliance with all aoplicable regulations, a party has two procedural options under the Revised Statement of Policy. First, a party may challenge the sufficiency of an item in the NUREG documents. However, the scope of the inquiry under this option is limited to the particular safety concerns that promoted the specific " requirements" in NUREG-0694 and 0737. What we had in mFnd was allowing a party to focus on the same safety concern that formed the basis for the NUREG requirement and litigate

_9_

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the issue of whether the NUREG " requirement" is a sufficient response to that concern.

• *

• Second, where the contention or new '

evidence cannot be associated with a safety concern identified by NUREG-0694 or 0737, 10 C.F.R. 2.758 may be used to bring the matter to the Commission's attention without prior litigation on the merits. * *

• 10/

In light of this most recent Commission guidance, reconsideration by this board of its prior rejection of Joint Intervenors' contentions is clearly warranted. As was discussed

~

supra, in contrast to the relatively narrow and inflexible standard of admissibility relied upon by the board in its February 13 order, the Commir; ion has now clarified its intention with respect to the December 18, 1981 Revised Statement of Policy and has laid to rest once and for all the view previously urged herein by the Staff and PGandE that any contentions admitted must relate to the narrow issue of compliance with specific NUREG requirements. Beyond mere compliance, contentions may also challenge the sufficiency of those requirements (1) if based upon evidence that a Commission regulation vill be violated by licensing or (2) if based on evidence focussing on the same safety concern underlying such NUREG requirements.

Applying this standard, reconsideration and admission f

of' Joint Intervenors' contentions previously rejected by the licensing board should be granted.

l 10/ Id. at 3-5 (emphasis added; footnote omitted).

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j 3. Specific Contentions Joint Intervenors submit that tha following contentions, pro"ivusly rejected by the licensing board, should be reconsidered and admitted for hearing in this low power test proceeding:11/ -

10. The staff recognizes that pressurizer heaters and associated controls are necessary to maintain natural circulation at hot stand-by conditions. Therefore, this equipment should be classified as " components important to safety" and required to meet all applicable safety-grade design criteria, including but not limited to diversity (GDC 22), seismic and environmental qualification (GDC 2 and 4), automatic initia-tion (GDC 20), separation and independence (GDC 3 and 22), quality assurance (GDC 1),

adequate, reliable, on-site power supplies (GDC 17) and the single failure criterion. The Applicant's proposal to connect two out of four of the heater groups to the present on-site emergency power supplies does not provide an equivalent or acceptable level of protection.

12. Proper operation of power operated relief valves, associated block valves and the instruments and controls for these valves is essential to mitigate the consequences of accidents. In addition, their failure can cause or aggravate a LOCA. Therefore, these valves must be classified as components important to safety and required to meet all safety-grade design criteria.

18. The TMI-2 accident demonstrated that the severity of the environment in which equip-I ment important to safety must operate was underestimated and that equipment previously decced to be environmentally qualified failed.

One example was the pressurizer level instru-ments. The environmental qualification of safety-related equipment at TMI is deficient in three respects: (1) the parameters of the relevant accident environment have not been identified; (2) the length of time the equip-ment must operate in the environment has been 11/ See note 8 suora.

t underestimated; and (3) the methods used to qualify the equipment are not adequate to i

give reasonable assurances that the equipnent l will remain operable. Diablo Canyon should not be permitted to load fuel until all safety-related equipment has been demonstrated to be qualified to operate as required by GDC 4.

The criteria for determining qt.alification should be those set forth in R3gulatory Guide 1.89 or equivalent.

20. The TMI-2 accident demonstrated that there are systems and components presently 4

classified as non-safety-related which can have an adverse effect on the integrity of the core because they can directly or indirectly affect temperature, pressure, flow and/or reactivity.

This issue is discussed at length in Sectien 3.2,

" System Design Requirements ," of NUREG-0578, the TMI-2 Lessous Learned Task Force Report (Short Term). The following quote from page 18 of the report describes the problem:

There is another perspective on ,

this question provided by the TMI-2 accident. At TMI-2, operational problems with the condensate purifi-cation system led to a loss of feedwater and initiated the sequence of events that eventually resulted in damage to te core. Several nonsafety systems were used at various times

' in the mitigation of the accident in ,

ways not considered in the safety analysis; for example, long-term maintenance of core flow and cooling with the steam generators and the reactor coolant pumps. The present classification system does not adecoately recognize either of these kinds of effects that nonsafety systems can have on the safety of the plant. Thus, requirements for nonsafety systems may be needed to reduce the frequency of occurrence of events that initiate or adversely affect transients and accidents, and other requirements may be needed to improve the current capa- '

bility for use of nonsafety systems during transient or accident situations.

In its work in this area, the Task Force will include a more realistic assessment

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a tf the interaction between operators a..d systems.

The Staff proposes to study the problem further.

This is not a sufficient answer. All systems and components which can either cause or aggravate an accident or can be called upon to mitigate an accident must be identified and classified as components important to safety and required to meet all safety-grade design criteria.

21. The accident at TMI-2 was caused or aggravated by factors which are the subject of Regulatory Guides not used in the design of TMI. For example, the absence of an automatic indication system as required by Regulatory Guide 1,47 contributed to operation of the plant with the auxiliary feedwater system completely disabled. The public health

' and safety require that this record demonstrate conformance with or document deviations from the Ccmmission's regulations and each Regulatory Guide presently applicable to the plant.

23. The accident at TMI-2 was a multiple failure accident involving independent and dependent failures. The multiple failure sequences exceeded the single failure criterion utilized in the Diablo Canyon design basis accident assessment. Therefore, comprehensive studies of the interaction of nonsafety grade components, equipment, systems, and structures with safety systems and the effect of these interactions during normal operation, transients, and accidents need to be made by the Diablo Canyon Applicant in order to assure that the plant can be operated without endangering the health and safety of the public.

I The Commission's recently enunciated standards for j admissibility of TMI-related contentions is satisfied as to each Joint Intervenor contention. Either explicitly or implicitly, all are based upon significant new evidence that the regulations of the Commission would be violated by plant operation. Contentions 10, 12, 18, and 20 concern the classification, qualification, and design of components demonstrated during the accident at TMI-2

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I to be important to safety because of their potential to cause, aggravate, or mitigate an accident. Contention 21 focusses on the documentation required for an understanding of the precise design and qualification standards actually applied to these components at Diablo Canyon.

Operation of the facility without first requiring that these essential components be designed and i

qualified in accord with the criteria applicabic to components important to safety will violate the provisions of 10 C.F.R.,

Part 50, Appendix A.

The purpose of the general design criteria ("GDC") set forth in Appendix A is described in the Introduction as follows:

The principal design criteria establish the necessary design, fabrication, construction, testing, and performance requirements for structures, systems, and components important to safety; that is, structures, systems, and components that provide reasonable assur-ance that the facility can be operated without undue risk to the health and safety of the i public.

Criterion 1 establishes the general requirement that

{s}tructures, systems, and components important to safety shall be designed, fabricated, erected, and tested to quality standards commensurate with the importance of the safety function to be performed.

The Commission's policy is that, in assessing the adequacy of plant i

l design, only those systems that meet the GDC can be assumed to operatn prbperly. If the components which are the focus of these contentions are to be relied upon to perform their demonstrated i

function of preventing or mitigating an accident, conformance with the GDC is mandatory, including GDC 1, 2, 3, 4, 17, 20, and

1. 22 and the single failure criterion, all of which are cited in the contentions themselves. Thus, the significant new evidence derived from the TMI-2 accident demonstrates that these regula-tory provisions apply to components not previously considered i

important t<> safety; consequently, they must be satisfied prior 4

to licensing of Diablo Canyon for either. low or full power operation, and any noncompliance with them or the applicable standard review plan shoula be thorough'.y documented.12/ - ,

Contention 23 concerns adverse interactions between safety and non-safety systems and components, an issue of particular significance at Diablo Canyon where the risk of such interactions is heightened by the unique seismic danger. The TMI-2 accident attests to the fact that proper operation of claborate safety systems and components remains vulnerable to adverse interactions with unforeseen failures of non-safety grade components, such as a control system. Until a complete site-specific study of this issue has been conducted at Diablo Canyon,13/ there is no rational -

basis to conclude that the GDC -- particularly GDC 4, 22, and 24 --

have been complied with or that malfunction of a non-safety system

-12/ See discussion in attached affidavit of Gregory C.

Minor T" Minor Affidavit") at 4-9.

13/ The systems interaction study conducted at Diablo Canyon was limited to seismically induced failures which interact with safety functions. The study did not include control system failure as an initiator and, thus, did not investigate the ef fects of direct (physical) interaction of failed control systems or indirect (through system dynamics) interaction with safety functions.

See discussion in " Review and Evaluation of System Interaction Methods ," !;UREG/CR-1901, at 4.2.2.

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during normal or transient conditions will not adversely interact with a safety system needed for accident prevention or mitigation.1SI The Commission's second criterion for admission of contentions is satisfied as well. Most, if not all, of the conten-tions cited above focus on the same safety concerns that prompted the specific requirements contained in NUREG-0737. Contention 10 focusses on the issue of reliability of the pressurizer heaters in the event of an accident, as does NUREG-0737 Item I.E.3.1, Emergency Power for Pressurizer Heaters. Contention 12 concerns the issues of PORV performance and design which are also the focus of NUREG-0737 Items II .D.1, Relief and Safety Valve Test Require-ments, and II.K.3, Final Recommendations , B and O Task Force.

Contention 18, regarding adequate qualification of equipment important to safety to assure operability during normal, transient, accident, and post-accident conditions, relates to the same basic safety concerns which prompted a series of NUREG-0737 Items, including Items II.B.2, Plant Shielding; II.D.1, Relief and Safety

' Valve Test Requirements; and II.F.1, Accident Monitoring Instru-mentation. The broader issues described in Contention 20, concerning classification and design of systems and components important to safety, and Contention 23, regarding systems interaction, were specifically addressed in Iteus II.F.5, Classification of Ipatru-mentation, Control, and E1cctrical Equipment, and II.C.3, Systems Interaction, of the "TMI Action Plan," NUREG-0660.

11/ See Minor Affidavit, at 7-8.

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With respect to each of the safety concerns underlying their contentions, Joint Intervonors contend that a response greater than that embodied in the MUREG-0737 Items cited is j necessary to assure that Diablo Canyon can be operated safely at 4

low power. In other words, each of t NUREG Items relevant to the contentions here in issue is an insufficient response to the TMI-2 accident. Because the contentions cited (1) assert that operation of Diablo Canyon will violate Commission regulations and/or (2) focus on the same safety concerns which prompted specific NUREG requirements , they are proper subjects for litigation in this low power test proceeding, under the Commission's most recent guidance.

Furthermore, Joint Intervenors have repeatedly addressed in detail the reopening the record and late-filing of contentions I

standards with respect to each contention.15! Those discussions i

f demonstrated also the safety significance of the issues and their relation to the TMI-2 accident. The attached affidavit of nuclear consultant Gregory C. Minor specifically addresses their relevance to low power operation at Diablo Canyon, emphasizing particularly .

the importance and practical desirability of resolving these I issues prior to licensing of the facility for operation at any 15/ See Joint Inter enors' February 18, 1981 Notice of Objections to Pobruary 13, 1981 Order of the Licensing Board:

Joint Intervenors' March 24, 1981 Motion to Reopen; and Joint Intervenors' March 26, 1981 Response to NRC Staff's February 23, 1981 Request for Directed Certification and Pacific Gas and Electric Company's February 26, 1981 Request for Directed Cer-ti fica tion .

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4 level of power. Contrary to the implicit assumption of the Staff and PGandE, thc fact that there is reduced decay heat resulting from operation at 5% of rated power, rather than 100%, does not j effectively negate the need for adequate core cooling. Indeed, during initial low power testing of a facility, unique circumstances

may exist which suggest a particular need for proper operation of I

all components which may cause, aggravate, or mitigate an accident.

For example, as is discussed in the attached affidavit,

the low power test plan proposed by PGandE for Diablo Canyon requires that certain of the facility's automatic safety functions be intentionally disabled, thereby increasing the burden upon plant operators to diagnose and respond to any problems which might normally be prevented or resolved by the automatic safety systems.

Similarly, greater reliance upon operator action may result from the added risk of component and system failures due to " infant mortality" during the low. power test period of plant break-in and

operational " debugging."16/ Consistent with the Commission's ALARA -

I regulations, these circumstances indicate the need for adequate safety precautions --including documentation of deviations -- to assure that each of the components demonstrated during the TMI-2 accident to be important to safety is designed and qualified as such and will function properly during even the severest accident con-ditions.11!

16/ Minor Affidavit, at 3.

17/ The TMI-2 accident demonstrated the dangers inherent in relying upon operator action to prevent or mitigate an accident.

According to the TMI-2 Lesscns Learned Tack Force, in 1978 there

[ cont.}

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Those safety precautions should include (1) thorough studies of (a) the functioning of systems and components during and following an accident at Diablo Canyon and (b) systems interaction, but not limited to seismically induced interactions, and (2) based on those studies, the qualification and design of all components important to safety should be~ upgraded where necessary to insure reliable operation over the full range of accident and post-accident conditions. As a minimum, however, each of the components determined to have caused, aggravated, or mitigated the accident at TMI-2 (and which are the focua of the contentions cited supra) should be reclassified as components important to safety and required to meet all applicabic safety-grade design criteria and qualification requirements. Not only is this necessary to assure safe operation of the plant during the low power testing period, it will minimize the possibility that future modifications of component design and/or qualification will be in any way foreclosed or hampered by contamination of the reactor.

The proper time to address the safety concerns upon which Joint Intervenors' contentions 10, 12, 18, 20, 21, and 23 are based is prior to issuance of a license for fuel loading and f

17/ [ cont.]

were about 30 instances where operator error resulted in the total loss of a safety function. NU REG-0 57 8 , at A-62. Since this estimate was based solely on Licensee Event Reports, it is not unreasonable to suppose that there may have been more instances i that were unreported. In short, it is unrealistic to assume that the operators will take appropriate actions under accident conditions ev 2n at low power.

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low power testing. Accordingly, those contentions should be admitted for hearing in this proceeding.

III CONCLUSION For the foregoing reasons, Joint Intervenors respectfully urge this licensing board to (1) deny the applications of the Staff and PGandE for rejection of all admitted contentions and immediate issuance of low power testing licenses, and (2) reconsider its prior rejection of Joint Intervenors' contentions 10, 12, 18, 20, 21, and 23 and order that they be admitted for hearing in this proceeding.

Dated: April 22, 1981 Respectfully submitted, JOllM R. PilILLIPS, ESQ.

j JOEL R. REYNOLDS, ESQ.

l Center for Law in the Public Interest l

j 10203 Santa Monica Boulevard Fifth Floor Los Angeles, CA 90067 (213) 879-5588 DAVID S. FLEISCIIAKER, ESQ.

i 1735 Eye Street, N.W.

i Washington, D.C. 20006 (202) 638-6070 A

By N,)Y %p '

g/j/JOEL g'JEEYNOLDS Attorneys for Intervonors

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j

! BEFORE THE. ATOMIC SAFETY AND LICENSING BOARD i

! In The Matter Of )

)

PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275

) 50-323

) (Diablo Canyon Nuclear Power )

i Plant - Units 1 & 2) )

I a P

I AFFT. DAVIT OF GREGORY C. MINOR i Concerning 1

l THE NEED TO CONSIDER ADDITIONAL TECliNICAL ISSUES 1

IN THE LON-POUER TEST PROCEEDINGS i

i STATE OF CALIFORNIA )

) ss.

COUNTY OF SANTA CLARA) i

)

GREGORY C. MINOR deposes and says under oath as follows:

I. BACKGROUND OF AUTHOR

1. My name is Gregory C. Minor; I *. twenty years of experience in the design, development, research, start-up and I worked for sixteen years management of nuclear reactor systems.

for the General Electric Company and for the past four years as a

i an independent technical consultant. I was a founder in 1976, and I an now vice president of MHB Technical Associates. I received a B.S. in electrical engineering from the University of

i. 6 4 Cali fo rnia , Berkeley, and an M.S. in electrical engineering from  !

Stanford University. My sixteen years with G.E. involved the

}

t

! design, development, and field work for safety and control sys-tems for nuclear plants. Since 19 76, I have participated in 'a 4

varie,ty of reactor studies addressing nuclear safety issues. I j am presently a consultant on several nuclear plant cases concern-ing the adequacy of current designs to meet existing regulations .

I am a member of the Nuclear Power Plant Standards Committee for q

the Instrument Society of America. Also, I participated in a Peer Review Group of the NRC/TMI Special Inquiry Group investi-1 gating the TMI accident. My complete experience record is ap-l -

l pended to this affidavit as Attachment A.

i

'i I II. PURPOSE i

. 2. The purpose of this affidavi t is to show the need for considering additional technical issues in the low-power tes t 4

l l proceeding. These issues include safety classification of equip- ,

4 ment, environmental qualification , systems interaction, and docu-l mentation of deviations.

1

)

i -III. INTRODUCTION l

3. Operation of Diablo Canyon for low jower tes ting will l

be limited to 57. of rated power, but this is still a significant 1

j ,

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amount of power (approximately 54 MWe or 167 MMt )-

4. Despite the fact that there is a reduced decay heat resulting from low-power operation, there is still a need for adequate core cooling to prevent boil-off and uncovering the core in the event of a LOCA and/or system malfunction.

I

5. The low-power test plan proposed by the Applicant l will defeat some of the automatic safety functions of the plant, such as the safety inj ection actuation signal.3/ Thus, a great-er reliance is placed on operator action to overcome any problems which would normally be automatically responded to by the now-defeated safety systems.

6. The time for the LPT program is also the period of time where plant break-in and operational debugging occurs. Dur-ing this period of operation, it is normal to discover or ex-perience design installation errors as well as component and sys-tem failures due to infant mortality or break-in failures.b/

Therefore, the Diablo Car. yon operators could see a reduced com-and system reliability and availability during the LPTP ponent l

L 1/ Based on Diablo Canyon FSAR, page 1.1-2.

{/ For a large LOCA PGhE indicates that core coverage is main-tained for only about an hour or so, assuming the operator l

does not take action. (See Shiffer affidavit at page 3).

The NRC indicates that exposed fuel could reach temperatures l exceeding 1350'F within one hour after shutdown from 5% power (Phillips affidavit at pages 6 and 7).

3/ Diablo Canyon I, Special Low-Power Test, Final SER, October, 1981, page 1-1, and Goeser affidavit at page 2.

4/ The higher failure rate at ini.tial operation is often due to break-in failures. This period is followed by a random fail-ure rate which is fairly uniform and eventually the failure rate increases again in old age or wear-out failures. The re-sult is a bath tub shaped failure rate curve.

i

. , _ _ _ - . . , . , _ . .., ._ ....._.-...__._,,,_.,m,-.._.,. ~ ., _ ._.c,_.. . . _ , . . _ , , _ . . . _ . . ~ , , _ , . _ . _ . _ . _ _ . _ , . -

f which, in addition to the defeated safety functions, could place an added demand on operator performance in off-normal conditions.

7. Thus, for a plant entering the debugging and test l

period, there is a need to exercise all due precautions to as-sure that systems and components important to safety are proper-ly classified, analyzed, and qualified for operation in severe accident environments and that the plant design and status are properly documented. To perform these evaluations and make the necessary improvements now, before operation of Diablo Canyon, I

' is consistent with the NRC's ALARA regulations.

4

8. For these reasons, it is important that additional

}

issues be considered prior to operation of Diablo Canyon.

! IV. DISCUSSION OF ISSUES

9. The accident at TMI-2 involved multiple failures, reached conditions beyond the design basis for many components i and systems, and relied in part upon components classified as  !

non-safety related in mitigating the accident. As a result of l

this new information, there is a need to reassess designs such j

as Diablo Canyon for proper classification of components and sys- t con-tems according to their importance to safety during accident ditions and the possible interaction between systems of non-safe-ty and safety classification.

SAFETY CLASSIFICATION OF EQUIPMENT

10. The relief valve at TMI was clearly involved in causing the small LOCA when one stuck open,and later in as- l sisting with the control and mitigation of the accident through  !

the " bleed-and-feed" operation. Similarly, the block valve which was used to override the stuck-open relief valve served an ac-l cident mitigating role at TMI-2. This and other adverse operat-l

)

ing experience caused the NRC staff to question the performance qualification of these primary pressure boundary componentsh/ b ut i '

i the safety classification has not yet~been revised. The PORV's also serve safety-related functions by preventing overpressuri-

- nation of the reactor coolant system during low temperature op-J eration,6/ and limiting the number of challenges to the safaty i valves during high temperature operation. Clearly, the PORV's i and/or their block valves 1/ should be classed as important to j safety and be subjected to all the applicable safety design cri-i- teria and qualification requirements.8 /

11. The TMI-2 accident also showed the importance of l having pressure control equipment availaole during the accident l

l 4

and post-accident periods. In their analysis of the accident, NRC f

5/ NUREG-0578, Lessons Learned Task Force Report, page 7.

{/ NUREG-0410, Task A-26, Reactor Vessal Pressure Transient Pro-tection (overpressure).

1/ PORV's have been justified as non-safety because of the exist-c:,ce of block valves which are themselves classed as non-safe-ty-related. In view of their demonstrated ability to cause and l

mitigate an accident, there is little justification for this boot-strap rationalization which keeps both pressure boundary i

devices from being classified as safety-related.

~8/ Confidence that block valves will meet accident environment fail-qualification requirements has been greatly reduced by the ure of a block valve to close under full flow in a recent EPRI 4

test. (See Jan. 14, 1981, letter, Jeffries (EPRI) to Hursen, attached to Gov. Brown's March 30, 1981, response for document requests.)

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- staff acknowledged the safety significance of natural circu-l 1ation and the importance of pressure control in initiating and maintaining natural circulation. If the function of the pressurizer heaters and their controls is to be assured during accident and post-accident conditions, their importance to safety must be recognized by assigning a safecy-related p t

f classification and requiring that they taeet all applicable safe-t ty design criteria and qualification requirements.9/ Without this step, the pressurizer heaters and controls at Diablo Canyon I.

cannot be counted on to function properly in an accident en-vironment and may be subj ect to the same post-accident failures l

as those at TMI-2.

i

12. In addition to the examples of PORV's and pressur- t izer heaters, the TMI-2 accident showed other systems where ,

I equipment classified as non-safety had an effect on the initia-tion, development, or mitigation of the accident. Condensate demineralizer, vessel level (inferred), in-core thernocouple readings, and maintenance work are examples of devices or ac-tions which either helped cause or exacerbate the accident.10/ -

I However, these are generally not classified as important to f

i The Applicant's response to NUREG-0578 and NUREG-0737 require-i

~9/

ments included addition of seismically qualified safety-grade t 4

circuit breakers, but there are other parts of the system which are not fully qualified.

HUREG-0578, Lessons Learned Task Force Report, Section 3.2 j

_10 /

discusses several examples.

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I safety. The systems at Diablo Canyon differ in some ways from those at TMI-2, but they are, in general, similar in their de-ficiencies regarding classification of safety versus non-safety.

Improvement in the matter of classification is only possible if a careful, thorough s tudy of the functicning of sys tems and com- 1 ponents during and following an accident is nade for Diablo Canyon.

A less s atis factory but warranted action would be to extend the TMI-2 experie_ ce to Diablo Canyon by reclassifying as important to safety all systems and components which directly contributed to the cause , e xace rb a tion , or mitigation of the accident.

SYSTEMS INTERACTION

13. The multiple failures experienced in the TM1-2 accident jus tify a critical reanalysis of the single failure li-censing criterion and the interaction of safety and non-safety systems during transient and accident conditions. The complexi-ty of a reactor plant has increased to the point where accidents involving multiple failures and sys tems interaction have pro-duced acciden sequences beyond those reviewed in the licensing process or previously considered credible. TMI-2 pos t-accident reviews have acknowledged the need 'for studying sys tems inter-action 11/ to locate unanalyzed multiple failures and sequences.

The NRC nas required an abbreviated review of seismicly initiat-ed systems interaction for Diablo Canyon1-2/ and the Applicant has

~11/

!UREG-0578, Lessons Learned Task Force Report (short te rm) ,

Recomendati on 9, and NUREG-0585, Lessons Learned (Final Report)

~~12/

NUREG-0060, NRC Action Plan Developed as a Result of the TMI-2 Accident, Item II.C.3, and reviewed in SER Supplement 11.

complied. However, this falls short of mee ting the comple te need to evaluate sys tems interaction. ' For ins tance , the r:-

cent Board notification on ' fe ty Impli cations of Con trol Sys-tems and Plant Dynamics ide. _ifie d an NRC s taff member's con-ce rns for the effects of control syst"a failures on safety-re-lated functions durin,, an earthquake.13/ -

DOCLT:iENTATION OF DEVIATIONS

14. The NRC's review of an FSAR is basically an audit process whe rein they attempt to judge compliance with the ap-plicable regulations, guides, and s tandards . Unfortunately , it is not a 100% coverage and it does not provide an auditable path.

In addition, the audit cannot be clearly referenced back to spe-cific section of the Standard Review Plan (SRP)(NUREG-00 75 /087) .

The mos t s traigh tforward method of proving compliance with the rebulations is to review the design to all applicable regula-ti_ns and the SRP and document the deviations. This has ieen under consideration b; the NRC since 19 77 and was cons ide re d .ios t re-cen ely as a result of the TMI-2 accident.14/ It is evident that the NRC will even tually require documentation of deviations from the SRP and regulations ; the uncertainty is when. In view of the special nature of Diablo Canyon and its relative l y old design, 13/ Boa rd No ti fi ca tion B" 15, Nov. , 1980, Dif fering Profes-sional Opinion Board Notification.

14/ Ben Rusche mentione d i.t in his le tte r of Jan. 31, 19 7 7, whe re-in he exempted Diablo Canyon because operation was though t to be i minent. NUREG-0660 menti.ons the idea in T.em IV.E.S.

Ibirold Denton (NRC) evolves a plan for sys tematic assessment and docune1tation of deviations in his June 13, 1980, letter to the Commission and his July 23, 1930, memo to the Commis-sion on comp liance with NRC regulations . The plan is also set out in the Federal Register, page 67099.

I l

there is ample reason to complete a review of the Diablo Canyon design against the SRP and regulations and compile a documenta-tion of deviations.

V. CONCLUSIONS

15. In view of the TMI-2 experience and the status of l the Diablo Canyon design, there is a need at this time to review all components now classed as non-safety and upgrade the safety classification of those found to be important to safety. These components should then be required to meet all applicable safety design criteria and qualification requirements. There should also be a thorough systems interaction study completed to assess the impact of non-safety equipment on safety-related systems and com-ponents. This should include the benefit of the reclassification review and not be limited to the seismically induced events of the applicant's earlier limited scope systems interaction study. This systems interaction study will also serve to define additional environmental requirements for reliable operation of systems im-portant to safety. With these additional data in hand, the qual-ification of components important to safety should be reviewed and upgraded as necessary to insure reliable operation over the full range of accident and post-accident conditions, including those expected to result from an NrWS event. Finally, the Diablo Canyon design should be reviewed against applicable SRP and regu-lations and the results documented in a documentation of devia-tions.

_9_

I have read the foregoing and swear that it is true and accurate to the best of my knowledge.

/

April 20, 1981 . O a-.y dSdM

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GRECORY C. MINOR

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l me this m day of M , 1981. _u.wn.. -wm N

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ATTACICEiT A MINOR PROFESSIONAL QUALIFICATIONS O F CRECORY C. l 1

l CREGORY C. MINOR MH3 Technical Associates 1723 Hamilton Avenue Suite K San Jose, California 95125 (403) 266-2716 EXPERIENCE:

1976 - PRESENT Vic e-P re s iden t - MHB Technical As ociates, San Jose, California.

Engineering and energy consultant to state, federal, and private organizations and individusals. Major activities include studies of safety and risk involved in energy generation, providing tech-nical consulting to legislative, regulatory,.public and private groups and expert witness in behalf of state organizations and citizens' groups. Was co-editor of a critique of the Reactor Safety Study (W A S H - 14 0 0) for the Union of Concerned S cientis ts and co-author of a risk analysis of Swedish reactors for the Swedish Energy Commission. Served on the Peer Review Group of the NRC/TMI Special Inquiry Group (Rogovin Committee). A c t i ve ly involved in the Nucicar Power Plant standards Committee work for the Instrument Society of America (ISA).

1972 - 1976 Manager, Advanced Control and Ins trumen tation Engineering, General Electric Company, Nuclear Energy Division, San Jose, California.

Managed a design and development group of thir ty- f ou r engineers and support personnel designing systems for use in the measurement, control and operation of nuclear reactors. Involved coordination with other reactor design organizations, the Nuclear Re gu Responsi- la to ry Co mmis s io n , and cus_oners, both overseas and domestic.

bilities included coordinating and managing the design and development of control systems, safety systems, and new control The position concepts for use on the next generation of reactors.

in clu d e d re s pon sib ili ty for standards applicable to control and instrumentation, as well as the design of short-tern solutions to field problems. The disciplines involved included electrical and nechanical engineering, scismic design and process computer control /

p ro g r ammin g .

1970 - 1972 Mananer, Reactor Control Systems Design, General Electric Company, Nuclear Energy Division, S an Jose, California, Managed a group of seven engineers and two support personnel in the design and preparation of the detailed system drawings and control documents relating to safety and emergency systems for nuclear reactors. Responsibility required coordination with other design organizations and interaction with the customer's ,

engineering personnel, as well as regulatory personnel.

1963 - 1970 Design Engineer, Gene ral Electric Company, Nuclear Energy Division, San Jose, California.

Responsible for the design of specific control and instrumentation systems for nuclear reactors. Lead design responsibility for various s ub s y s. t em s of instrumentation used to measure neutron flux in the Performed reactor during startup and intermediate power operation.

lead system design function in the design of a major Other system for respr asi-measuring the power generated in nuclear reactors.

b ili tie s included on-site checkout and testing of a complete Receivedcactor control system at an experimental reactor in the Southwest.

patent f or Nuclear Power Monitoring System.

1960 - 1963 1

Advanced Engineering Program, General Electric Company; _ Assignments in W as hin g ton , California, and Arizona.

l Rotating assignments in a variety of disciplines:

- Engineer, reactor maintenance and instrument design, KE and D reactors, Hanford, Washin g ton , circuit design and equipment maintenance coordination.

- Design engineer, Microwave Department, Palo Alto, Cali-f o rn ia. Worked on design of cavity couplers fo r TNT's.

- Design engineer, Computer Department, Phoenix, Arizona.

Design of core driving circuitry.

- Design' engineer, Atomic Power Equipment Department, San Jose, Cali f o rnia. Circuit design and an a ly s is .

1

- Design engineer, Space Systems Department, Santa Barbara, l

California. Prepared control portion of satellite proposal.

-2_

- Technical S taf f - Technical Military Planning Operation.

(TEMPO), San ta B arbara, California. Prepare analysis of mis s ile exchanges.

During this period, completed three-year General Electric program of extensive educaticr. in ndvanced engineering principles o f high-er mathematics, probability and analysis. Also completed courses in Kepner-Tregoe, Effective P r es en t a t io n , Management Training Pro-gram, and various technical seminars.

EDUCATION Univers ity of California at Berkeley, BSEE, 1960.

Advanced Course in Engineering - three-year curriculum, General Electric Company, 1963.

Stanford University, MSEE, 1966.

HONORS AND AS SO CI ATIONS

- Tau Beta Pi Engineering Hono rary S ociety.

- Co-holder of U.S. Patent No. 3,565-750, " Nuclear Reactor Power Monitoring Sys tem," February, 1971.

- Member: American Association for Advance of Science.

- Member: Nuclear Power Plant S t andards Ccamittee, Instru-ment Society of America.

PE RS ON AL DATA Born: June 7, 1937 Married, three children Residence: San Josc, California

P UB LI CATIO N S AND TESTIMONY

1. G.C. Minor, S.E. Moore, " Control Rod Signal Multiplexing,"

IEEE Transactions on Nuclear Science, Vol. NS-19, Feb rua ry ,

1972.

2. G.C. Minor, W.G. Milam, "An Integrated Control Roon System for a Nuclear Power Plant," NEDO-10658, presented at In-ternational Nuclear Industries Fair and Te chnical Mee tin gs ,

O c t ob e r , 1972, Basle, Switzerland.

3. The above article was also published in th e German Technical Magazine, NT, March, 1973.

4. Testimony of G.C. Minor, D.G. B r id e nba u gh , and R.B. Hubbard before the Joint Committee on Atomic Energy, Hearings held February 18, 1976, and published by the Union of Cencerned S cien t is ts , Cambridge, Massachusetts.

5. Testimony of G.C. Minor, D.G . B ridenbaugh , and R.B. Hubbard before the Calif ornia S tate Assembly Committee on Resources, Land Use, and Energy, March 8, 1976.

6. Testimony of G.C. Minor and R.B. Hubbard before the Cali-f ornia S tate Senate Committee on Public Uti?ities, Transit, and Energy, March 23, 1976.

7. Testimony of G.C. Minor regarding the Grafenrheinfeld Nu-cicar Plant, March 16-17, 1977, Wurzburg, Germany.

8. Testimony of G.C. Minor before the Cluff Lake Board of In-quiry, Regina, Saskatchewan, Canada, September 21, 1977.

9. The Risks of Nuclear Power Reactors: A Review of the NRC H. Kendall, Reactor Safety S tudy WASH-1400 (NUREG-75/0140), _

et al, edited by G.C. Minor and R .B . Hubbard for the Un ion of Concerned S cientis ts , August, 1977.

S we d ish Reactor S a f e ty Study: Barseb3ck Risk Assessment, 10.

MHB Technical Associates, J ar.u a ry , 1978. (Published by Swedish Department of Industry as Document.SdI 1978:1)

11. Testimony by G.C. Minor before the Wisconsin Public Service Co mmis s ion , Feb ruary 13, 1978, Loss of Coolant Accidents:

Their P rob ab ilit y and Consequence.

12. Testimony by G.C. Minor bef ore the California Legislature Assembly Committee on Resources, Land Use, and Energy, AB 3108, April 26, 1978, Sacramento, Califo rnia .

P UB LI C AT IO N S AND TESTIMONY

13. P r e s en t a t io n by G.C. Min o r before the Federal Minis try for Research and Technology (BMFT) , Meeting on Reac to r Safety Research, Man / Machine Interface in Nuclear Reactors, August 21, and September 1, 1978, Bonn, Germany.

R. B . Hubbard,

14. Testimony by G.C. Minor, D.G. Bridenbaugh, and before the Atomic Safety and Licensing Board, September 25, 1978, in the matter of the Black Fox Nuclear Power S tation Construction Permit Hearings, Tulsa, Oklahoma.

15. Testimon" of G.C. Minor, ASLB Hearings Related to TMI-2 Accident, Rancho Seco Power Plant, on behalf of Friends of the Earth, September 13, 1979.

16. Testimony of G.C. Minor before the Michigan S tate Legisla-ture, Special Joint Committee on Nuclear Energy, Implications of Threc M i l_e_ _I_s_l a n d A c c i d e n t f or Nuclear Power Plan ts in M i c h igan_, 10/15/79

17. A Critical View of Reactor Safety, by G.C. Minor, paper presented to the American Association for the Advancement 7, of Science, Symposium on Nuclear Reactor S a f e ty, January 1980, San Francisco, California.

18. The Effects of Aging on Safety of Nuclear Power Plants, paper presented at Forum on Swedish Nuclear Referendum, Stockholm, Sweden, March 1, 1980. ,

19. Minnesota Nuclear Plants Gaseous Emissions Study, MHB Technical Asso ciates , September, 1980, prepared for the Minnesota Pollution Control Agency, Roseville, MN.

20. Testimony of G.C. Minor and D.C. Bridenbaugh before the New York State Public Service Commission, Shoreham Nuclear Plant Construction Schedule, in the matter of Long Island Lighting Company Temporary Rate Case, September 22, 1980.

-S-9 m is . -

s EXHIBIT C: STATEMENT OF JOINT INTERVENORS' REJECTED CONTENTIONS O

., , , - . , , . . - , - . - , , . , -. . , . - , , , , - , . , , . , . , , . . . , , . , . - , - ---,n.. -

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3. The Applicant has failed to demonstrate compliance at Diablo Canyon with 10 C.F.R. Part 50, Appendix B, regardi ng quality assurance.

6. The Applictat has failed to demonstrate that the containment at Diablo Canyon can withstand pressures resulting from the combustion of hydrogen likely to bc gcnerated by the reaction of zirconium cladding with water during a loss-of-coolant accident at the facilitv

7. The Applicant has failed to address adequately safety considerations designed as high priority and/or high risk in Table B.2 of MUREG-0660, "TMI Action Plan."

8. The accident at TMI Unit 2 demonstrated that reliance on natural circulation to remove decay heat is inadequate.

During the accident, it was necessary to operate at least one reactor coolant pump to provide forced cooling of the fuel.

However, the Applicant's testing program does not denonstrate l

a reliable method for forced cooling of the reactor in the event of a small loss-of-coolant accident ("LOCA"), particularly with regard to two-phase flow and with voids such as occurred at TMI-2. This is a threat to health and safety and a violation of both General Design Criterion ("GDC") 34 and GDC 35 of 10 C.F.R., Part 50, Appendix A.

9. Using existing equipment at Diablo Canyon, there are three principal ways of providing forced cooling of the reactor: (1) the reactor coolant pumps; I^) the residual heat removal system; and (3) the emergency core cooling system in a

" bleed and feed" mode. None of these methods meets the NRC's regulations applicable to systems important to safety and is sufficiently reliable to protect public health and safety:

a. The reactor coolant pumps do not have an adequate on-site power supply (GDC 17), their controls do not nee,t IEEE 279 (10 C.F.R. 50.55a(h)) and they are not i

adequately quali~fied (GDC 2 and 4).

b. The residual heat removal system is incapable of being utilized at the design prassure of the primary system.

a

c. The emergency core cooling system canrot be operated in the bleed and feed mode for the necessary oeriod of time because of inadequate capacity and radiation shielding 1

for the storage of the radioactive water bled from the primary coolant system.

10. The staff recognizes that pressurizer heaters t

and associated controls are necessary to maintain natural circu-lation at hot stand-by conditions. Therefore, this equipment should be classified as " components imoortant to safety" and required to meet all applicable safety-grade design criteria, including but not limited to diversity (GDC 22) , seismic and l

l env ronmental qualification (GDC 2 and 4), automatic initiation f

l (GL. 20), secaration and independence (GDC 3 and 22), quality assurance (GP_ 1), adequate, reliable on-site nower supplies l (GDC 17) a'.td the single failure criterion. The Applicant's l

l proposal to connect two out of four of the heater groups to the i

present on-site emergency power supplies does not provide an L equivalent or acceptable level of protection.

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,-, ,,- .- ....-_.,__,m_______,, _ , . _ _ , _

12. Proper coeration of power operated relief valves, associated block valves and the instruments and controls for these valves is essential to mitigate the consequences of accidents.

In addition, their failure can cause or aggravate a LOCA.

4 Therefore, these valves must be classified as components imoortant to safety and required to meet all safety-grade design criteria.

14. 10 C.F.R. 50.46 requires analysis of ECCS perftr-inanua "for a number of postulated loss-of-coolant accidents of different sizes, locations, and other properties sufficient to provide assurance that the entire spectrum of postulated loss-of-coolant accidents-is covered." For the spectrum of LOCAs, specific parameters are not to be exceeded. At TMI, certain of these were exceeded. For exampl,e, the peak cladding temperature exceeded 2200 fahrenheit (50. 4 5 (b) (1) ) , and more than 1% of the cladding reacted with water or steam to produce hydrogen (50. 46 (b) (3) ) . The measures proposed by the staff address primarily the very specific case of a struck-open power operated relief valve. However, any other small LOCA could lead to the same consequences. Additional analyses to show that there is adequate protection for the entira spectrum of small break locations for the Diablo Canyon design have not been performed. Therefore, there is no basis for finding compliance with 10 C.F.R. 50.46 and GDC 35. None of the c rrective actions to date have fully addressed the demonstrated inadequacy of protection against small LOCAs.

15. The accident at TMI-2 was substantially aggravated by the fact that the plant was operated with a safety system inoperable, to wit: two auxiliary feedwater system valves were closed which should have been open. The principal reason why this condition existed was that TMI does not have an adequate

- - . . . . - .-. , - - - , ,,m-, .,.e- . , , , , . , , - , - - - , . _ e.- e . - - - , , - --

system to inform the operator that a safety system has been deliberately disabled. To adequately protect the health and safety of the public, a system meeting the Regulatory Position of Reg. Guide 1.47 or providing equivalent protection is required.

16. The design of the safety systems at TMI was 1

such that the opera')r could prevent the completion of a safety function which was initiated automatically; to wit: the operator could (and did) shut off the emergency core cooling system prematurely. This violated S4.16 of IEEE 279 as incorporated in 10 C.F.R. 50.55 (a) (h) which states:

The protection system shall be so designed that, once ini*iated, a protection system action shall go to completion.

The Diablo Canyon design is similar to that at TMI and must be modified so that no operator action can prevent the completion of a safety function once initiated.

17. The design of the hydrogen control system at TMI was based upon the assumption that the amount of fuel cladding that could react chemically to produce hydrogen would, under all circumstances, be limited to less than 5%. The accident demonstrated both that this assumption is not justified and i

that it is not conservative to assume anything less than the worst case. Therefore, the Diablo Canyon hydrogen control systams l

should be designed on the assumption that 100% of the cladding reacts to produce hydrogen.

l l 13. The TMI-2 accident demonstrated that the severity of the environment in which equipment important to safety must operate was underestimated and that equipment previously deemed l

l I

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t i

( - . . - . . . --- -_ . . - . . . . _ . _ _ _ __ _ _ _ __

to be environmentally qualified failed. One axample was the pressurizer level inscruments. The environmental qualificaticn of safety-related equipment at TMI is deficient in three respects: (1) the parameters of the relevant accident environ-ment have not been identified; (2) the length of time the equipment must operate in the environment has been underestimated; and (3) the methods used to qualify the equipment are not adequate to give reasonable assurances that the equipment will remain operable. Diablo Canyon should not be permitted to load fuel until all safety-related equipment has been demonstrated to E qualified to operate as required by GDC 4. The criteria for determining qualification should be those set forth in Regulatory Guide 1.89 or equivalent.

19. Neither the Applicant nor the MRC staff has presented an accurate assessment of the risks posed by operation of Diablo Canyon, contrary to the requirements of 10 C.F.R. 51. 20 (a) and 51.20(d). The design of Diablo Canyon does not provide protection against so-called " Class 9" accidents. There is no basis for concluding that such accidents are not credible. Indeed, the staff has conceded that the accident at TMI-2 falls within that classification. Therefore, there is not reasonable assurance that Diablo Canyon can be operated without endangering the health and safety of the public.

20. The TMI-2 accident demonstrated that there are systems and components presently classified as non-safe ty- related which can have an adverse effect on the integrity of the core because they can directly or indirectly affect temperature, pressure, flow and/or reactivity. This issue is discussed at

! length in Section 3.2, " System Design Requirements ," of MUREG-

05'iS, the TMI-2 Lessons Learned Task Force Report (Short Term).

The following quote from page 18 of the report describes the problem:

There is another perspective on this question provided by the THI-2 accident. At TMI-2, operational problems with the conden-sate purification system led to a less of feedwater and initiated the sequence of events that eventually resulted in damage to the core. Several nonsafety systems were used at various times in the mitigation of the accident ir. ways not considered in the safety analysis; for example, long-term maintenance of core flow and cooling with the steam genera-tors and the reactor coolant pumps. The present cleasification system does not adequately reccgnize either of these kinds of effects that nonsafety systems can have on the safety of the plant. Thus, requirements for nonsafety systems may be needed to reduce the frequency of occurrence of events that initiate or ad- ,

versely affect transients and accidents, and other requirements may be needed to improve the current capability for use of nonsafety systems during transient or accident situations. ,

In its work in this area, the Task Force will include a more realistic assessment of the interaction between operators and systems.

The Staff proposes to study the problem further. This is not a sufficient answer. All systems and components which can either cause or aggravate an accident or can be called upon to mitigate an accident must be identified and classified as components important to safety and required to meet all safety-grade design criteria.

! 21. The accident at TMI-2 was caused or aggravated by factors which are the subject of Regulatory Guides not used in the design of TMI. For example, the absence of an automatic indication s m as required by Regulatory Guide 1.47 contributed to operation of the plant with the auxiliary feedwater system ccmpletely disabled. The public health and safety require that

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Q thiv record demonstrate conformance with or document deviations frca the Commission's regulations and each Regulatory Guide presently applicable to the plant.

23. The accident at TMI-2 was a multiple failure accident involving independent and dependent failures. The multiple failure sequences exceeded the single failure criterion utilized in the Diablo Canyon design basis accident assessment.

Thereforei comprehensive studies of the interaction of nonsafety grade components, eqdipment, systems, and structures with safety systems and the effect of these interactions during normal operation, transients, and accidents need to be made by the Diablo Canyon Applicant in order to assure that the plant can be operated without endangering the health and safety of the public.

, a 1

ESHIBIT D: JOINT INTERVENORS' RESPONSE TO NRC STAFF'S FEBRUARY 23, 1981 REQUEST FOR DIRECTEP CERTIFICATION AND PACIFIC GAS AND ELECTRIC COMPANY'S REQUEST FOR DIRECTED CERTIFICATION ,

pp. 36-66 (March 26,1981)

III JOINT INTERVENOR CONTENTIONS .

REJECTED BY THE LICENSING BOARD RAISE ISSUES DEMONSTRATED DURING THE T:1I-2 ACCIDENT TO BE IMPORTANT TO SAFETY Each of the contentions rejected by the licensing board in its February 13, 1981 Prehearing Conference Order arise out of the experience at TMI-2 and relate directly to the funda-mental question of the safety of plant operation. Because the board, in denying contentions, relied solely upon its restrictive and inflexible interpretation of the Commission's Revised State-rent of Policy, it did not consider the safety significance of a

the issues which Joint Intervenors seek to litigate. As is evident from the following discussion, however, all of the contentions focus on matters recognized as a result of the TMI-2 accident to be important to safety. As such, they are proper subjects for hearing before tb? licensing board in the Diablo Canyon proceeding.

Contention 3 -- No decision has yet been issued by the licensing board regarding PGandE's compliance at Diablo Canyon with the requirements of 10 C.F.R. Part 50, Appendix B, regarding quality assurance. Since the Partial Initial Decision was issued by the board in September 1979, there have been several significant developments. First, arising out of the TMI-2 accident, numerous government reports have addressed the need e

49 for improvements in quality assurance programs.- / For example, the "TMI Action Plan," which ' ncorporates the findings of many of the studies conducted post-TMI, states the following quality assurance objective in Section I.F:

Improve the quality assurance program for design, construction, and-operations to provide greater assurance that plant design, construction, and operational activities are conducted in a manner commensurate with their importance to safetf.

In recoguzcion of the need for increased attention to quality assurance, the Action Plan lists two categories of actions to be (1) expansion of the quality assurance lists,50/

taken by the NRC:

and (2) development of more detailed quality assurance criteria.

In addition, Task II.F.5 of the Action Plan recognizes the

. inadequacy of the present safety classification system (i.e.,

safety-related or nonsafety elated) by directing preparation of a " standard to provide a cla sification approach for instrumen-tation, control, and electrical equipment."51/ -

49/ See, e.g., " Report of the President's Commission on the Accident at Three Mile Island," supra; "Three Mile Island: A Report to the Commissioners and to the Public," supra;

" Report of Special Review Group, Office of Inspection and Enforcement, on Lessons Learned from Three Mile Island," NUREG-0616; "TMI Action Plan," supra.

50/ See also March 6, 1981 letter from Robert Tedesco, NRC Assistant Director for Licensing, requesting that PGandE supple-ment and clarify the Diablo Canyon "Q-list" (listing of safety-related structures, systems, and components controlled by the quality assurance program) with respect to numerous plant systems and components.

51/ TMI Action Plan, at II.F-6.

Second, in an April 17, 1980 letter to R H. Engelken, Director of the NRC's Office of Inspection and Enforcement, Region Five, Richard Locke (PGandE) stated that a recent "as-built" audit conducted to " verify that actual configurations of safety-related piping agree with the models used to seismically analyze them" had uncovered a broad range of significait discrepancies.}2/

These discrepancies cast serious doubt upon the analyses conduc-ted by both the NRC Staff and PGandE with respect to seismic design of the plant, and they represent a significant breakdown.

- 52/ In the letter to Engelken, Locke noted the following specific kinds of discrepancies:

The following types of discrepancies are typical of those found, in order of frequency of occurrence: valve weights not correct; weights of valve flanges not modelled; center of gravity of valve operator not adequately considered; support location differences of greater than one pipe diameter; supports missing or extra; presence of high density lead form or grout in penetrations; differences in pipe geometry; invalid assumptions in modeling of analysis endpoints; differences in insulation thickness and pipe diameter.

It was decided that 49 of the 192 large j

diameter analyses and 8 of the 30 small diameter analyses had differences significant enough that the results were not obviously conservative and that they should be reanalyzed.

Tnis amounted to approximately a 26 percent reanalysis rate. In addition, there were 10 l

large diameter arm small diameter analyses l

for which differences were resolved by a

) field hardware change. ,

l l

l I

r

53 in PGandE's quality assurance program.- /

Third, on August 28, 1980, PGandE submitted, Amendment 85 to the FSAR which completely revised Chapter 17, regarding 54 quality assurance.- / This new chapter, together with the revelations contained in Locke's letter and the recommendations for quality assurance reform nrising out of TMI, renders questionable the validity of any findings which the licensing board may ultimately issue based on the limited hearing conducted several years ago in this case 55/ and demonstrates plainly the need for closer and more thorough examination of PGandE's quality arsurance program at Diablo Canyon.

There can be no question that complian_c with appli,-

cable quality assurance standards is an issue of critical impor-53/ At a minimum, these discrepancies undercut the finding of the licensing board in its September 27, 1979 Partial Initial Decision, at 92, that the " Staff review of the seismic design of the Diablo Canyon plant was the most extensive ever undertaken by the Staff of the NRC . . . [and] [t]he Applicant's review was also extraordinarily thorough."

54/ Due to the extensiveness of the changes, PGandE omitted vertical change bars normally included to identify less sub-stantial revisions. As a result of FSAR Amendment 85, the NRC, in an October 17, 1980 letter, requested substantial clarification of the information contained in the amendrent. Although PGandE responded by letter on January 22, 1981, 'he NRC requested answers to still further questions in a !!ar- 6, 1981 letter to PGandE, stating that the PGandE submitta' "does not satisfy all odr concerns." PGandE's most recent r.sponse is contained in a March 18, 1981 letter to the NRC. -

55/ In its September 27, 1979 Partial Initial Decision, the licenEing board deferred any ruling on the quality assurance issue stating that " [il t is not now known how the Lessons' Learned s

from Three Mile Island-2 will impact on . . . Quality Assurance so [this] matter will be deferred and [isl not a part of this Partial Initial Decision." Id. at 9, 10 NRC at 459.

a tance to safety. As the Appeal Board noted in In the Matter of Consumers Power Comoany (Midland Plant, Units 1 and 2) ,

ALAB-106, 6 AEC 182, 183 (1972), "[o]ne of the most significant elements of the Commission's ' defense-in-depth' approach to nuclear safety is its emphasis upon quality assurance and quality control in the construction of nuclear power plants." Another Appeal Board in In the Matter of Duke Power Company (Will;.am B. McGuire nuclear Stations, Units 1 and 2), ALAB-128, 6 AEC 399, 410 (1973),

observed that:

In an area as significant as quality assurance, the record should leave no doubt as to whether the applicant is in ,

full compliance with applicable criteria and, if not, the basis upon which the regulatory staff authorizes any departure from such criteria.

See also In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2) , LBP 74-1, 8 AEC 584, 597-600 (1974); In the Matter of Commonwealth Edison Concany (Zion Nuclear Power Plant, Units 1 and 2), LBP-73-35, 6 AEC 861, 896 (1973).

l Considering the significance of the developments discussed I above which have occurred since the issue of quality assurance was heard in this proceeding, there is good reason to doubt PGandE's compliance with Appendix B of 10 C.F.R. Part 50 at l

l l Diablo Canyon. Given the obvious relevance of this issue to the fundamental question of the plant's safety, Joint Intervenors should be permitted to raise quality assurance as a contention in opposition to PGandC's motion for a low power testing license.

l l

Contentions 6 and 17 -- During the accident at TMI-2, approximately 30 to 50% of the zirconium in the core reacted to form hydrogen. This exceeded the maximum assumptions contained in Commission regulations by approximately six to ten times.

S,qe 10 C.F.R. S 50.44.56/ -

Some of the hydrogen was released to the containment and exploded, although it is unknown how much hydrogen was actually generated, how much was released, and what percentage of the released hydrogen exploded. The TMI-2 Lessons Learned Task Force acknowledged the sign! ce of .

this issue and the need for basic reform of existing standards 56/ Commissioners Gilinsky and Bradford have recognized the implications of the TMI-2 accident for the numerical assumptions contained in the Commission's regulations:

Prior to the Three Mile Island accident, reaction with water of as much as one percent of the reactor fuel's zirconium cladding was regarded as extremely unlikely, even in a major loss of coolant accident. To provide what was thought to be a substantial safety margin the rule requires protection against up to five percent zirconium-water reaction.

Now we know that much larger quantities of hydrogen have been generated in a lesser accident. As much as 50 percent of the zirconium cladding in the TMI-2 core is estimated, by the principal investigators of the accident, to have reacted with water, thereby releasing several hundred kilograms of hydrogen to the containment where much of it burned. Therefore, the numerical assump-tions of the existing rule are discredited by~ experience and cannot serve the objec-tives of the rule.

In the Matter of Metropolitan Edison Comoany (Three Mile Island

Nuclear Station, Unit 1) , CLI- -

, NRC , Separate Views of Commissioners Gilinsky and Bradford, at 1 (September 26, 1980).

in its " Status Report and Short-Term Re :ommendations ," NUREG-0578:

The course of events at TMI-2 with respect to hydrogen production and control in containment has indicated a need for thorough reconsideration of the Commission's design basis for combustible gas control systems. This should include.both a re-examination of the reactor system effects (i.e., coupling the ECCS evalua-tion and the assumption of hydrogen produced by metal-water reaction) and the acceptabi]ity of 10 C.F.R. Part 100 guidelines for evaluation of offsite d'ses from purposeful releases from the containment. 37/

A core damage or core melt accident could lead +o the generation of amounts of hydrogen which, if ignited, potentially could result in pressures exceeding the containment design <

. pressures. Despite this possibility,58/ neither PGandE nor 57/ NUREG-0578, at A-23.

58/ The TMI-2 accident destroyed the view previously held by many people that a severe core damage or core melt could not occur. Although the frequency of such an event is difficult to quantify, the possibility is certainly not a negligible one.

Dr. D. Okrent, a member of the ACRS , has stated that it app:ars to be difficult to demonstrate with a high degree of confidence that the frequency of sevare core damage or core melt for reactors in cperation or under construc-tion is less than about one in a thousand per year. It may be smaller, but it is also conceivable that it is somewhat larger. Also, there are many potential paths to severe core damage or core melt so that it will be diffi-cult to make the frequency of such an accident very much smaller, with a high degree of confi-donce.

D. Okrent, New Trends in Safety D.esign and Analysis, IAEA-CN-31/6.4, IAEA International Conference on Current Nuclear Power Plant Safety Issues, Stockholm (October 20-24, 1980).

the Cc= mission Staff has evaluated the effect of hydrogen explosions or combustion on equipment important to safety inside the containment at Diablo Canyon. Nor has either attempted to show that the containment and hydrogen control systems could withstand the accident conditions presented at TMI-2 and continue to function as intended regardless of the high percentage of the cladding which reacted chemically to form hydrogen.59/ -

After the TMI-2 accident, there is no technical basis to conclude that the 5% limiting assumption in the Commission regulations is reasonable. Indeed, the Commission has recognized this fact by disregarding that limitation and imposing further requirements in the case of the Sequoyah plants, and its Staff has notified the licensee of the D.C. Cook plants that additional hydrogen control measures will be necessary.

The structures and systems which are the focus of these contentions serve critical safety functions in preventing hydrogen explosions and controlling any radiation releases which might be caused by such combustion inside the containment.

Satisfaction of these contentions by PGandE is necessary to assure protection of the public's health and safety, and, accordingly, they are proper subjects for hearing in the Diablo 59/ The fact that Diablo Canyon is equipped with internal recombiners does not render irrelevant the experience at TMI-2.

There has been no showing that, given the significant amounts of hydrogen generated during the accident, the hydrogen control systems at Diablo Canyon would foreclose the possibility of combustion, even assuming that the systems function as intended and are properly maintained.

l l

i

60 Canyon low power test proceeding.- /

Contention 7 -- The TMI Action Plan represents the Commission's principal response to the TMI-2 accident. Table B.1 of the Plan describes the point ranking system applied to each of the Action Plan items or tasks in determining the NRC priorities for reform and resulting implementation schedule. The various factors considered by.the NRC are safety significance, type of improvement (e.g., human element or hardware), utilization of resources (e.g., staff resources, industry resources), and timing of improvements (i.e. length of time prior to realization of expected benefit) . Table B.2 of the Plan lists each of the ,

Action Plan items in order of their point value which was derived from a balancing of the factors set forth in Table B.l.

A number of items designated high priority and/or high risk in Table B.2 have not been adequately addressed by PGandC and by the NRC Staff in its SER Supplement 10.51/ Because of the safety significance of these tasks as indicated by the high point ranking attached to them by the Staff, it is appropriate that PGandE be required to demonstrate with respect to Diablo Canyon 60/ Both NUREG-0694 and NUREG-0737 contain requirementsNUREG-0694, relevant to the issue of hydrogen control. See, e.g.,

II.B.4, Analysis of Hydrocen Control; NU RE G- 0 7 37 , II.E.4.1, Dedicated Hydrogen Penetrations.

61/ During the Prehearing Conference held in late January of this year, Joint Intervenors' counsel listed the following Action Plan items which are the focus of this contention:

I.A.2.1; II.B.1; II.B.2; II.B.3; I.C.8; II.E.1.1; II.E.4.2; III.A.3.1; III.B.2; III.A.3.3; III.D.3.4; I.A.2.3; II.B.7; II.E.3.3. Prehearing Conference Transcript, at 224.

i that failure to comply with these high priority items prior to fuel load will not endanger the health and safety of the public.

Until all of these items have been implemented at Diablo Canyon or PGandE has shown that a failure to do so poses no significant safety risk, its application for licenses to load fuel and conduct low power tests at Diablo Canyon should be denied.

Contentions S and 9 -- The TMI-2 accident demonstrated the importance to safety of maintaining a reliable method of forced cooling of the fuel. According to the Report of the President's Commission, about one hour into the accident the four reactor coolant pumps in Unit 2 began vibrating severely as a result of their inability to handle two phase flow --

steam and water -- and voids. Because the operators feared that violent shaking might damage the critically important and very expensive pumps or coolant piping, they shut them off, two at 62 5:14 a.m. and two 27 minutes later.- / Attempts to establish natural circulation cooling essentially by heating water in the core and cooling it in the steam generators proved unsuccess-ful.63/

Basic to the Commission's " defense-in-depth" principle is that it is necessary not only to have an adequate emergency core cooling system ("ECCS") but also to have an adequate 62/ " Report of the President's Commission on the Accident i

at Three Mile Island," supra, at 119. ,

63/ Id. at 127.

l 4

primary cooling system in order to reduce the need to resort to the emergency system. Indeed, one of the lessons learned I at TMI-2 was that challenges to the ECCS should be reduced.5d/

l Had the primary coolant system at Unit 2 the capability to maintain forced cooling despite two phase flow and voids, a

j escalation of the accident to crisis proportions might have i

i been averted.

PGandE's failure to address these issues at Diablo Canyon violates General Design Criteria ("GDC") 34 and 35.65/ -

]

Unless these systems are designed in accordance with the criteria i

applicable to systems important t; safety, the health and safety of thc public cannot be adequately protected. Prior to fuel ,

)

loading at Diablo Canyon, PGandE should be required to demonstrate that the cooling systems at the facility will not be subject to the failures which occurred at TMI-2.bb!

! 64/ NUREG-0578, at 6.

65/ General Design Critorion ("GDC") 34 requires a res.: dual heat removal system that removes heat.from the reactor core at a rate such that "specified acceptable fuel design limits and the design conditions of the reactor coolant pressure boundary are not exceeded." CDC 35 provides for an emerc;;cy corefrom cooling system the safety function of which is to " transfer heat a the reactor core following any loss of reactor coolant at rate such that (1) fuel and clad damage that could interfere with continued effective core cooling is prevented and (2) clad metal-water reaction in limited to negligible amounts."

66/ NUREG-0737 requi ements relevant to the issue of maintaining adequate coolirg of the reactor core are I.C.1, Short-Term Accident and Procedure Review; II.B.4, Training fo r.

Ii,tigating Core Damace; II.E.i.1, j Auxiliary Feedwate. System Auxiliary Feedwater System .nitiation Evaluation; and II.E.1.2, and Flow, i

i j

1 i

Contention 10 -- The TMI-2 accident demonstrated that the inability to remove decay heat from a shutdown reactor ,

can lead to severe fue) damage. Failure to maintain a sufficiently high pressure in the reactor coolant system resulted in the formation of steam, ..aich in turn led to severe vibration of the reactor coolant pumps. When the operator shut them off to l

j prevent damage from the vibration, forced cooling in the reactor

! coolant system was terminated. Steam accumulation in the system also prevented the establishment of na*, ural circulation.67/ -

' 1. us , one of the lessons learned at TMI-2 is that maintenance of sufficient pressure is essential to proper functioning of the coolant system. Following a reactor shutdown, this is achieved through the ese of pressurizer heaters. The TMI-2 Lessons Learned Task Force noted the connection between the accident and the need to assure operability of the pressurizer heatars:

Maintenance of safe plant conditions, inclu-ding the ability to initiate and maintain natural circulation, depends on the maintenance of pressure control in the reactor coolant system. Pressure control is normally achieved through the use of pressurizer heaters. Ex-7 perience at TMI-2 has indicated that the maintenance of natural circulation capabi'ity is important to safer;, including the need to maintain satisfactory natural circulation during an extended loss of offsite power. 68/

_6_7/ See notes 6,2 and 63 suora. ,

68/ MUREG-0578, at A-2.

I Although the Task Force recommended as a short-term measure that pressurizer heaters be connected to onsite power supplies, this is an insufficient response to the accident.

To ensure that the pressuricor heaters and associated controls will continue to function during accident conditions, they must be classified as important to safety and required to meet all i

I applicable safety-grade design criteria. The Commission's policy is that, in assessing the adequacy of a plant design, only ,

those systems that meet the GDC can be assumed to function.

Therefore, if a system is needed to prevent or mitigate an accident, conformance with the GDC is mandatory. Merely pro-q viding a means of connecting the pressurizer heaters to the j onsite emergency power supply, but not providing independence between heaters, not demonstrating that the heaters can function a

j following a safe shutdown earthquake, steam line break, or a

! loss of coolant accident, not providing automatic load shedding i and connection of the heaters, and not meeting any of the other Commission regulations applicable to functioning of the ' caters can have dangerous results: at best, heed.ars that are not operable may be connected to the onsite emergency power supply; at worst, connecting nonsafety grade heaters may result in failure of the onsite emergency power supply.69/ -- In neither case would the objective of assuring reactor coolant pressure control be

' 69/ GDC 17 requires that the onsite electric power supplies and electric distribution system "have sufficient independence, redundancy, and testability to perform their safety functions

< assuming a single failure."

achieved.

Prior.to loading of fuel.at Diablo Canyon, P andEf should be required to demonstrate that the pressurizer heators meet all applicable safety-grado design criteria. Absent such a showing, Diablo Canyon should not be licensed to operate at any level of power.-70 /

Contention 12 -- The opening of the power operated relief valve (" PORV" ) and its failure to reclose were key factors in the TMI-2 accident. In addition, for several hours the operator failed to actect the open PORV and terminate the loss-of-coolant accident by closing the block valve. The Staff has noted that "[t]his and other operating experience raise a significant question about the performance qualification of two types of valves in the primary coolant boundary: relief and safety valves."21/ The accident demonstrated raphically the safety significance of these valves in causing or mitigating a loss-of-coolant accident. In order to provide reasonable assurance that operation of Diablo Canyon will not pose an undue risk to the public, the PORV, block valves, and associated

! instrumentation and controls must be classified as components t

-70/ One relevant NUREG-0737 requirement is I.E.3.1, Emer-gency fiower for Pressurizer Hectors. ,

i 71/ NUREG-0578, at 7.

i 1

{

important to safety.72/ -

There are at least six important safety-related functions of the PORV:

(1) The PORV is part of the reactor coolant pressure boundary. An inadvertent opening of the valve constitutes

a loss of integrity of the pressure boundary, which either J

causes or aggravates a loss-of-coolant accident.23/

(2) The PORV limits the number of challenges to the safety valve. This is important in view of the recognized history of relief and safety valve failures 72/ A recent industry letter obtained by the Environmental Action Foundation has disclosed that Electric Power Research Institute ( " EP RI" ) tests conducted in January 1981 documented the inability of block valves to close against full flow.

Despite the safety significance of such components, EPRI apparently decided not to disclose the results either to the utilities or the NRC Staff. These developments raise serious questions regarding block valve design and testing which has been done to date. See March 11, 1981 letter to NRC Commissioners from Union of Concerned Scientists' Nuclear Safety Engineer Robert Pollard.

73/ As part of the reactor coolant pressure boundary, the design and fabrication of the PORV are critical to safety. Both 1 GDC 14 and 30 require the highest level of quality:

Criterion 14 - Reactor coolant pressure boundary. The reactor coolant pressure boundary shall be designed, fabricated, l

erected, and tested so as to have an extremely low probqhility of abnormal leakage of rapidly propagating failure, and of gross rupture. (Emphasis added.)

Criterion 30 - Quality of reactor coolant pressure boundary. Components which are part of the reactor coolant pressure boundary ,

shall be designed, fabricated, erected, and tested to the hichest quality standards practical. (Emphasis added.)

1

in operating plants.1$!

(3) The PORV is used to prevent overpressurization t of the reactor coolant system during low temperature opera-tion when the nil ductility transition temperature of i

the reactor vessel becomes the limiting consideration for maintaining the structural integrity of the vessel.75/ -

(4) The PORV serves to reduce the challenge rate to the ECCS in that inadvertent opening of the valve or the inability to isolate the PORV requires ECCS to function.76/ -

(5) The PORV is used to " bleed" cooling water during the " bleed and feed" mode.21/

, (6) The PORV is essential to depressurize the reactor coolant system during conditions of inadequate core cooling.

74/ In Section 2.1.2 of its " Status Report and Short-Term RecomEendations," the TMI-2 Lessons Learned Task Force acknowledged the alarming history of relief and safety valve malfunctions:

To date there have been a number of instances of improper operation of relief and safety valves. These examples include valves opening below set pressure, valves opening above set pressure or failure to open. The failure of the power-operated relief valve to resent was a significant contributor to the TMI-2 sequence of events.

NU REG- 0 5 7 8 , at A 7 75/ This function cannot be performed by the safety valves because the opening pressure set point -- 2500 psig -- is far above the permissible pressure during low temperature operation.

The possible consequences of PORV malfunction under those circum-l stances is a rupture of the vessel.

l

76/ See note 36 and accompanying text sup_ra.

_7 7/ NUREG-0 578, at A-1.

l _s1_

i l

Because of the high level of radioactivity in the reactor coolant system after core damage, other potential methods of depressurization (e.g., use of the letdown line) would be unavaiable.

One of the principal lessons learned from the TMI-2 accident is that reliance on non-safety grade components to provide protection of the public's health and safety is insuffi-cient.78/ Given the demonstrated relevance of relief and safety valves to plant safety, they should be required to meet all applicable safety grade design criteria. This requirement should be complied with at Diablo Canyon prior to operation of the plant at any level of power.79/-

Contention 14 -- During the course of the TMI-2 accident, certain of the performance criteria set forth in the Commission's regulations were exceeded, in violation of the Commission's ru3ulations. SI Analyses of the full spectrum of postulated loss-of-coolant accidents at Diablo Canyon are necessary demonstrating that SS 50.45 and 50.46 will be complied 78/ See discussion of contentions 20 and 23 infra at 60-63.

79 NUREG-0737 requirements relevant to these issues include II.D.1, Relief and Safety Valve Test Requirements; II.K.3, Final Recommendations, B and O Task Force.

30/ For example, the peak cladding temperature exceLded 2200 Yahrenheit (10 C.F.R. S 50.45 (b) (1)) , and more tnan 1%

of the cladding reacted with water or steam to produce hydrogen (10. C.F.R. S 50.46 (b) (3)) .

with ans that the public will be protected.

Such analyses should distinguish between safety and non-safety grado equipment by assuming that only safety grade equipment will function. This limitation is consistent with the Commission's policy that in evaluating the adequacy _

of plant design, the applicant is not permitted to rely upon the availability of non-safety grade equipment.91/ Similarly, -

the analyses should consider operator actions only to the extent

• bat they may interfere with the initiation or com-pletion of a particular safety function. As became clear at TMI-2, it is unrealistic to assume that the operators will take appropriate actions under accident conditions.82/ -

At TMI-2 certain systems were rendered unusable because the high radioactive contamination resulting from the significant fuel failure exceeded the design bases. PGandC should be required to demonstrate that the leak rate from all systems outside the containment and the radioactive shielding for those systems is acceptable assuming fuel failure in excess of amounts specified in 10 C.F.R. S 50.46.

Finally, consistent with Item II.C.2 of the TMI Action Plan, probabalistic analysis such as an Interim Reliability 81/ Standard Review Plan, Appendix A, S 7.3.

82/ According to the TMI-2 Lessons Learned Task Force, in 1978 Ehere were about 30 instances where operator error resulted in the total loss of a safety function. NU REG-0 5 7 8 , at A-62.

l Since this estimate was based on Licensee Event Reports, it is l

not unreasonable to suppoue that there may have been more i

instances which Nere unreported.

_ _ _ _ _ _ - ~ __. _ .- _ _ _ _ _ __ _ ,-- _ _,. _ . _ _-_-_-..._ _ ,. _. _ _ ._.___

Evaluaticn Program ("IREP") study should be conducted at Diablo Canyon prior to issuance of a low power license. The effective-ness of such an analysis as a method of assessing some aspects of a reactor design was recognized by the NRC Lessons Learned Task Force in its " Final Report."83/ -

Prior to issuance of the requested licenses at Diablo Canyon, PGandE should be required to prove the adequacy of the protection at that facility against the full spectrum of loss-of-coolant accidents.84/ -

Contention 15 -- That safety systems necessary to protect the public could be completely disabled without the operator recognizing the condition was irrefutably demonstrated at TMI-2. For example, two valves in the auxuliary feedwater system which should have been open were closc', thereby completely disabling the auxiliary feedwate r system. No auxiliary feedwater could be pumped to either steam generator even though all three auxiliary feedwater pumps were running.

This aggravated the accident at least to the extent that it distracted the operators and added to their confusion in attempting to analyze the causes of the accident. Had i

the operators not discovered the closed valves approximately eight minutes into the accident, the complete absence of feedwater could have resulted in significantly greater l

83/ NUREG-0585, at 3-2.

84/ NUREG-0737 requirement I.C.1, "Short-Term A.ccident and, P recedu re Review," relates to the issue of LOCA analysis.

l

damage to the plant and harm to the public.

After the accident had begun, the operators shut down the onsite diesel generators by manually tripping the fuel racks. In violation of operating procedures, the fuci racks were left in the tripped position. Failure to reset them resulted in a condition that prevented either diesel generator from being started, either automatically or manually frcm the control room. The control room operator was unaware of this condition. Had a loss of offsite power occurred with both diesel generators unavailable, an almost total 1r.ss of A/C power to all TMI-2 safety systems would have resulted.

The NRC has recognized the significance of this issue in several ways. First, it has incorporated in its regulations -- 10 C.F.R. S 50.55a -- a standard requiring automatic indication of the operability status of plant safety systems. Section 4.13 of IEEE Std. 279 provides that " (i] f the protective action of some part of the system has been bypassed or deliberately rendered inoperative for any purpose, this fact shall be continuously indicated in the control room." Apparently, this requirement is based on the assumption that if the operator is aware that a safety system is inoperable, he or she will prevent any action that would disable the redundant backup safety system.

Second, Regulatory Guide 1.47, " Bypassed and Inoper-able Status Indication for Nuclear Power Plant Safety Systems,"

which was issued in 1973, provides for automatic indication of inoperability at the system -- not just the component --

level, thereby aiding in recognizing the functional inter-dependene of safety systems and their essential auxiliary supporting systems. This indication system supplements, rather than replaces, programs for the training of operators and development of adequate administrative procedures.

Finally, at p. A-63 of NUREG-0578, the Staff calls for shutdown of the plant within eight hours after "identifi-cation of a human or operational error that prevents or could prevent the accomplishment of a safety function . . . .

In failing to require compliance with Reg. Guide 1.47 or its equivalent, however, the Staff sanctions a situation likely to prevent the operator from knowing when a safety function has been lost.

To protect adequately the health and safety of the public, a system meeting Regulatory Guide 1.47 or ensuring equivalent protection is required. No low power testing license should be issued at Diablo Canyon until PGandE has provided such a sistem at the facility.85/ .

Contention 16 -- During the THI-2 accident, the operator prevented a safety system from performing a safety 85/ Relevant UUREG-0737 requirements include I. A.2.1, Upgrade RO and SRO Training and Qualifications: I.C.6, Verify Correct Performance of Operating Activities; I.D.1, Control Rc nm Desian Review; II.B.4, Traininc for Mitigating Core Damage; and II.K.1, Ocerability Status. The focus of several of these requirements on operator training, rather than instrumentation and centrol room design changes, is an insufficient response to the problem addressed by this contention.

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0

/ .. .

function that the proccction system had automatically initiated:

in violation of emergency procedures, the operator terminated full flow from the high pressure injection system to the reactor coolant system. This reduction in emergency cooling water flow significantly contributed to the damage to the reactor fuel. In addition, it is uncertain whether the operator may also have terminated all emergency feedwater to both steam generators by closing J.e auxiliary feedwater valves.86/ -

Mere instructions to the operator not to shut off a protection function prematurely are insufficient to prevent the occurrence at Diablo Canyon of operator actions similar

'o those described above. The protection system should be designed in accord with 5 4.16 of IEEE Std. ??9, quoted in the con-tention itself.87/ GDC 20, entitled " Protection Systems Functions,"

requires that "[t]he protection system shall be designed . . .

to sense accident conditions and to initiate the operation of systems and components important to safety." Experience at TMI-2 showed that this criterion is undermined by improper operator action which interferes with the completion of the protection function automatically initiated.

Failure to require compliance with S 4.16 of IEEE Std. 279 at Diablo Canyon precludes a finding of rcasonable 86/ It is unknown whether the valves were closed before or during the accident.

87/ Section 4.16 of IEEE Std. 279 provides that "[t]he protection system shall be so designed that, once initiated, a protection system shall go to completion."

[

. l assurance that the health and safety of the public will be adequately protected. Accordingli. PGandE should be denied the requested licenses until compliance with that standard has been demonstrated.88/ -

Contention 13 -- It is undisputed that during the TMI-2 accident equipment previously deemed to be qualified during the original NRC review of the plant failed. As noted in the contention itself, one important example was the pressurizer level instrumentation. One of the lessons learned, therefore, is that existing qualification programs for such equipment are inadequate and in need of thorough review.

Environmental qualification is fundamental to NRC nuclear reactor regulation.89/ -

G.D.C. 4 provides that:

[s]tructures, systems, and components impor-tant to safety shall be designed to accomodate the effects of and to be compatible with the environmental conditions associated with normal operation, maintenance, testing, and postulated accidents, including loss-of-coolant accidents.

In light of the experience at TMI, PGandE should be required to demonstrate the adequacy of its qualification program and the compatability of all components important to safety to operate 88/ The relevant requirements contained in NUREG-0737 are directed toward increased operator training. As noted in connection with Contention 12, note 58 supra, this is an insufficient response to the problem addressed by this. contention. .

89/ In the Matter of Petition for Emergency and Remedial Action, CLI-80-21, NRC , at 4 (May 27, 1980).

f l

l in the post-accident environment, particularly to withstand the eficc*; e prolonged exposure to high temperatures, wide variation in pressure, and, if core damage occurs, radiation.

The importance of this entire issue is highlighted by the Commission's Memorandum and Order in In the Matter of Petition for Emergency and Remedial Action, CLI-80-21, NRC (May 27, 1980). Although ruling that licensees have until June 30, 1982 to demonstrate compliance with specific safety equipment qualification standards,90/ the Commission strongly reprimanded licensees for failure to address this issue fully and promptly91/ and directed the Staff to continue a "high 90/ The Commission ruled that "[b]y no later than June 30,

- 1982 all safety-related electrical equipment in all operating plants shall be qualified to the DOR Guidelines or NUREG-0588."

--Id. at 12.

91/ The Commission described a staff review of environmental qualification which disclosed that

[allmost none of the equipment as yet examined meets all aspects of the DOR guide-lines which include the areas which any quali-fication judgment must address. Deviations from the guidelines include such things as an inadequate test sequence where not all of the service conditions were addressed, incomplete documentation of tests performed, no considera-tion given to aging and the fact that the com-ponent installed in the plant is not identical to the component tested because of differences in size and materials.

• Based on problems like these and the history of previous responses to Commission issuances on this subject, it is obvious to us that the nuclear industry is not devoting the resources necessary to solve the environ-mental cualification problem.

Id. at 10-11 (emohasis added).

priority" review of licensces' environmental qualification documentation.92/- The Commission explicitly statad that

"[t]hese [1982] deadlines, however, do not excuse a licensee from the obligation to replace inadequate equipment promptly."33/ -

PGundE should not be permitted to operate Ciablo Canyon without first demonstrating the adequacy of its safety-related equipment in light of the TMI-2 experience. ?rotection of the health and safety of the public requires that no license be issued until PGandE has made such a showing.94/ -

Contentions 20 and 23 -- The TMI-2 accident discredited the Commission's traditional distinction between " safety" and

-t "ndnsafety" grade systems and components. During the course of the accident, three fundamental flaws in the existing practice were revealed: (1) certain systems previously classified as non-safety are, in fact, important to safety; (2) some systems presently classified as important to safety do not meet all of the design requirements applicable to such systems; and (3) the design basis for judging the capability c f safety systems has not been properly specified. Although the theory underlying existing practice is that the failure of non-safety grade 92/ Id. at 12.

93/ Id.

94/ Items II.B.2, Plant Shielding; II.D.1, Relief and Safety Valve Test Requirements; anc 'I.F.1, e}ccident Monitoring Instrumentation, are several of the SJREG-0737 requirements which are relevant to this issue.

equipment should not initiate or aggravate an accident, the TMI-2 accident attests to the fact that proper operation of the elaborate safety systems and components remains vulnerable to adverse interactions with unforeseen failures of non-safety grade equipment.

! In its Final Report, the TMI-2 Lessons Learned Task Force acknowledged that there are myriad interactions between non-safety grade and safety grade equipment which have not been systematically evaluated:

The interactions between non-safety grade and safety grade equipment are numerous, varied, and complex and have not been system-atically evaluated. Even though there is a general requirement that failure of non-safety grade equipment or structures should not initiate or aggravate an accident, there is no comprehensive and systematic demonstration that this has been accomplished. 95/

Particularly at Diablo Canyon, where seismic activity increases the risk of adverse interactions, there is a serious danger that malfunction or failure of a non-safety system, such as a control system, during normal or transient conditions could result in undesirable operating conditions and/or adversely interact with the operation of a safety system needed for 95/ NUREG-05 85, at 3-3; see also NUREG-05'78, at 18 (quoted in contention 20).

. ~ - _ . _ _ _ ~ - . . _ . . - _ _ _ _ _ . . _ . . ~ , , _ . _ . . _ _ _ _ . - _ _ . . - _ _ . .-

accident prevention or mitigation.Sb 9

A recent Board Notification-7/ draws attention to an .

NRC Staff member's concern that control and safety interaction has not been properly reviewed through the licensing process and represents a risk to operation. One example of special concern to the Staff member is the effect of control system failures resulting from earthquakes:

[T]he Commission has failed to address, for instance, the effects of control system failures in operating plants due to an earthquake. Control systems are not seis-mically qualified, and an earthquake could cause massive failures driving the plant to extremely unsafe conditions. Isn't l

the Commission and its staff concerned about that? The hard reality remains that the most likely way to find out what is wrong with the design, configuration and qualification of control systems is for something wrong to happen. Certainly this is not the correct approach to safety. 98/

f 96/ Although the TMI Action Plan called for a systems interactipn study at Diablo Canyon, it was limited to seismically induced failures which interact with safety functions. The study did not include control system failure as an initiator and, thus, did not investigate the effects of direct (physical) interaction of failed control systems or indirect (through system dynamics) interaction with safety functions. See dis-cussion in " Review and Evaluation of System Interaction Methods,"

NU REG /CR-1901, at 4.2.2 97/ Board Notification BM-80-15, Nov. 1980, Differing

{rofessional Opinion Board Notification; subject: Safety The Implications ot Control Systems and Plant Dynamics.

Staff member is Demetrios L. Basdekas, Reactor Safety Engineer, Instrumentation, Control and Power Systems Branch, RSR, RES.

98/ Letter from Demetrios Basdekas to Rep. Morris Udall, Chairman, Subcommittee on Energy and the Environment (May'28, 1980).

'dections 3.2 of both NUREG-0578 and NUREG-0585 discuss a long-term study to address the issue of systems interaction. ,

Until such a study has been conducted at Diablo Canyon, licensing of the plant may be inimical to the health and safety of the public. As a minimum interim measure, however, any systems classified as non-safety but utilized at TMI-2 to perform a safety function should be reclassified as components important to safety and required to meet all applicable safety grade design criteria.

Diablo Canyon should not be licensed for operation at any level of power until the issue of systems interaction has been fully considered and PGandE has demonstrated the adequacy of any actions which it has taken to prevent adverse interactions at the plant.

Contention 21 -- As is stated in the contention itself, the TMI-2 accident was caused or aggravated by factors which are the subject of regulatory practices (e.g., Regulatory Guides, Standard Review Plans, and Branch Technical Positions) not used in the design and regulatory evaluation of the reactor.99/ -

Documentation of deviations from the Commission's regulations and current regu3atory practices would facilitate a determi-nation of deficiencies in plant design and operation with 99/ This subject is considered in the " Report of the,Presi-dent's Commission on the Accident at Three Mile Island," supra, at 11, 20, 53, 54, 65, 66, and the Rogovin Commission " Report to the Commissioners and to the Public," v. II, part 1, at 17, 21, 38, 44.

l

'I respect to existing Commission standards. Such a review is particularly necessary in the case of older nuclear plants, such ,

as Diablo Canyon, for which the design was completed in the mid-1960's, well before the majority of the currert design re-quirements were developed. The safety of Diablo Canyon, which was designed in the 1960's, constructed in the 19705 s, to operate in the 1980's, cannot be assured without a clear understanding of the extent to which the plant design deviates from current regulatory practices.

The benefits to be derived from implementation of the procedure have long been recognized by the NRC. By letter dated June 18, 1976, former NRR Director Rusche directed that procedures be established for documenting the bases for all deviations from the Standard Review Plans, to be implemented on all operating license application reviews by January 1,

1977.100/ --- On September 20, 1976, hm,che issued a memorandum approving the procedure and directing that it be incorporated in all Safety Evaluation Reports issued after January 1, 1977 for plants under review for operating licenses.101/

l Section 110 of Public Law 98-295 requires a systematic review of the safety of operating reactors, including documen-tation of deviations from the Standard Review Plan. This re-quirement is being extended to both near term plants and future 100/ NRR Office Letter No. 9, " Documentation of Departures f rcm S tandard Review Plan" (June 18, 1976). .,

l 101/ Memorandum, " Documentation of Deviations from the Standard Review Plan" (Sept. 20, 1976).

f l

l

plants through rulemaking procedures.102/

i In an August 14, 1980 memorandum to the Commission, NRC General Counsel Bickwit recommended that applicants be required to document deviations from the Standard Review Plan as one means of improving the NRC licensing review process and to provide " greater assurance that the regulations are complied with."103/ Without such a review, the NRC has no clear indication of what deviations from current regulatory practices exist in the design of a particular facility. The absence of such information undercuts any Commissign finding that licensing of the facility in question will not be inimical to the health and safety of the public.

On May 15, 1980, the Commission requested an estimate of staff and applicant resources necessary to document devia-tions. In his response by memorandum dated June 13, 1980, NRR Director Denton acknowledged the desirability of adopting such a r;q31rement in the near future.104/

Documentation of deviations should be required in connection with PGandE's pending application for licenses to load fuel and conduct low power testing at Diablo Canyon. The public health and safety require that PGandE demonstrate conformance 102/ Notic of Proposed Rulemaking, 45 Fed. Reg. 67099 i (October 9, 1980).

103/ Memorandum, " Compliance with Commission Regulations and Further Licensing" (August 14, 1980).

104/ Memorandum, " Compliance of Operating License Applications with Current NRC Regulations, Regulatory Guides, and Branch Technical Positions" (June 13, 1980).

l I

with or document deviations frora the Commission's current regulatory practices prior to operation of the plant a,t either low or full power.

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EXHIBIT E: JOINT INTERVENORS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, pp. 11-38 (June 16,1981) l l

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l requirements, it has the burden of proof to demonstrate that the exemption criteria set forth at 10 C.F.R. S50.47(c) have been satisfied.

I B. Adecuacy of Diablo Canyon Emercency Plans

15. The board finds that the existing applicant, State, and local emergency response plans are inadequate to assure protection of the health and safety of the public in i

the event of a radiological emergency at Diablo Canyon during low power testing.

16. It is undisputed that existing applicant, State, and local emergency plans for Diablo Canyon do not meet the Commission's revised regulations or the NUREG-0654 criteria.

(Joint Intervenors' Exh. 111; Shiffer, Tr. 10614; Buckley, Tr. 11056;. Sears, Tr. 11062.) Indeed, in response to the i

promulgation of new regulations, significant revision of the relevant Diablo Canyon plans has become necessary and is currently

in progress. None of these revisions is expected to be completed i

prior to fuel loading for low power testing. (SER Supplement 12, at III-3; Shiffer, Tr. 10660; Jorgensen, at 3. ) 14 / -

! 14/ By letter to the NRC Staff dated February 27, 1981, PGandE requested " relief" from the Commission's revised emer-

! gency planning requirements for purposes of loading fuel and

' conducting low power tests. Iloweve r , PGandC cited no authority for such relief in the regulations themselves; indeed, the

! Commission's emergency planning regulations contain no exemption for operation of a facility at less than full power. Accordingly, this board rejects any requests by PGandC for relief from the Commission's emergency planning regulations. See note 46 infra.

i _ . - . _ _ _ _ , _ _ _ . - - .. _ __ _,... _ _ _ . _ _ . , _ _ . _ _ _ _ _ _

17. Primary legal responsibility for evacuation and other offsite emergency response measures rests with the local jurisdiction, the County of San Luis Obispo. (Shif fer, Tr.

10746.) The principal testimony offered regarding local emergency planning was that of Jeffrey Jorgensen, a member of the San Luis Obispo County Board of Supervisors. With respect to the general adequacy of the local plans, he testified that although they have never been formally rescinded, chey are in essence nothing more than paper plans; because they have not been implemented, they would not provide substantial protection to the public in the event of a radiological emergency.

(Jorgensen, at 1-2; Tr. 13917.) Supervisor Jorgensen testified that prior to the TMI-2 accident, emergency planning was not perceived to be a high level priority for the county government; after the accident, however, it became extremely clear thac the county's plans would have to be substantially changed. Conse-quently, the County in effect shelved the existing plans and embarked on a new planning effort to devise plans which comply with the Commission's revised regulations. (Tr. 10918.)

Since the TMI-2 accident, no action has been taken to implement the existing plans in any way. (Tr. 10917.) The draft revised plan is not scheduled for formal adoption by the Board of Supervisors until December 1981. (Tr. 10921.) In short, Supervisor Jorgensen testified that l

[t]o date, no actual preparedness has been developed and will not be until the County's i

i

--n.n_.., n ,.r _. .,...n.n-,_,-----,,.n ,n--.n , -, - - .

, , . - - . . ,, - . , . . - , , _ - - , . , , , , , ,,n,-

current planning effort is completed.

(Jorgensen, at 3.) 15/

13. More specifically, the board finds that the extent of noncompliance with 10 C.F.R. 550.47(b) is substantial.

Through interrogatory responses offered into evidence by Joint Intervenors and received by the board, PGandE admitted that the existing combined applicant, State, and local emergency plans fail to comply with any of the sixteen planning standards 7

contained in that subsection. (Joint Intervenors' Exh. 111.116

This fact is not attributable to the inadequacy of any single plan; on the contrary, PGandE's onsite plan fails to comply with thirteen of the regulatory standards, the State plan with fifteen, and the local plans with fourteen. PGandE did not even attempt to demonstrate specifically the insignificance of any but a very few of the deficiencies. Nevertheless, as is evident frca the discussion below of the individual standards, numerous deficiencies relate to critical aspects of the emergency i

15/ This testimony of Supervisor Jorgensen was virtually uncontradicted by PGandC and the Staff. Although PGandE offered testimony of County Sheriff George Whiting in rebuttal to Jorgensen's testimony, the board notes that the response plan produced by the Sheriff and roccived in evidence as Board Exh. 5 has not been revised since 1977, two years prior to the TMI-2 accident. Rather than contradicting Supervisor Jorgensen's testimony, this is consistent with his statement that no action has been taken to implement the existing county l plans since March 1979.

16/ The Staff repeatedly stated its view that the t

(

' combined Applicant, State and local emergency plans do not comply with the Commission's revised emergency planning regula-tions. (Buckley, Tr. 11056; Sears, Tr. 11062; Olmstead, Tr. 106?7.)

The Staff did not challenge or contradict PGandE's admissions in Joint Intervenors' Exh. 111.

t . .

response capability, regardless of whether the facility is operating at low rather than full power.

19. Further deficiencies in compliance with 10 C.F.R.

S 50.47 (b) were revealed on cross-examination of the PGandE and Staff witnesses and through the direct testimony of Supervisor Jorgensen, County Health Director Howard Mitchell, and California Department of l'orestry official Robert Paulus.

Most significant of these deficiencies, together with those i

admitted by PGandE in Joint Intervenors' Exhibit 111 ("J. I.

Exh. 111"), are summarized briefly as follows:

(A) Assianment of Responsibility (Organization Control) 17/ -

J (1) Interfaces between onsite and offsite emer-

)

gency response organizations are not sufficiently defined or diagrammed in applicant, State, or local plans. (J.I.

i j

Exh. 111; Shiffer, Tr. 10667.)

l (2) Letters of agreement with offsite emergency response organizations, set forth in Appendix 7 to PGandE's onsite plan, are out-of-date and insufficiently specific-l contain no criteria for implementation, include unverified

( information (e.g., phone numbers), and do not comply with l

NU REG- 065 4 criteria. They are not set forth in the State or local plans. (J.I. Exh. 111; Shiffer, 10668-73, 17/ Titles for each of the standards are drawn from

URECT0 6 5 4.

Paulus, at 4.)

(3) PGandE onsite plan doesn't require 24-hour manning of communication links (Shiffer, Tr. 10682),

and State plan contains no commitment to 24-hour per day response or manaing of communication links with local officials and applicant. '(J . I . Exh. 111.)

(4) Title of persons to be contacted at the State and local levels in the event of an emergency is not specified in the onsite plan nor does plan contain phone numbers of persons to contact. (J.I. Exh. 111; Shiffer, Tr. 10680-82.)

(5) The relationship of FEMA to the emergency response effort is not specified. (J. I. Exh. 111.)

(3) Onsite Emergency Organization ,

(1) Responsibilities and authority of Site Emergency Coordinator are not sufficiently defined, particularly with regard to delegation of duties and the critical ultimate i

decisionmaking authority in the control room during an i

energency. (J. I. Exh. 111; Shiffer, Tr. 10662.)

(2) Staffing requirements set forth in NUREG-0654 are not sufficiently addressed in PGandE's onsite plan, including the fact that on weekends and of f-hours a fire brigade of five members will be drawn from the minimum fourteen pcrsons onsit: . (J. I. Exh. 111; Pattercon, Tr. 10802-03.)

(3) Interfaces between onsite and offsite emergency response organizations and personnel are not outlined as 1

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required by NUREG-0654. (J. I. Exh. 111; Shiffer, Tr. 10667.)

(4) PGandE's onsite plan fails to discuss adequately the long-term augmentation of the emergency organization.

(J. I. Exh. 111.)

(5) PGandE's onsite plan fails to identify in sufficient detail the services to be provided by local and/or State agencies in the event of a radiological emergency at the l

l facility. Letters of agreement to provide such services fail to detail the authorities, responsibilities, and limitations on actions of contractors, private organizations, and local support groups. The onsite plan provides inadequate assurance -

of necessary ambulance service, does not provide for a means to transport injured persons to St. <rancis Hospital in San Francisco, and fails to describe adequately the capacity, trained personnel, and facilities available at St. Francis Hospital. (J. I. Exh. 111; Shiffer, Tr. 10668-73, 10800, l 10864-65.

i (C) Emeroency Resconse Support and Resources

! (1) The applicant, State, and local plans do not specify the federal resources expected in the event of an 1

emergency, the time of arrival of rescurces, or the persons responsible for requesting federal assistance. (J. I. Exh. 111.)

(2) The applicant and State plans do not specify all available radiological laboratories which might be utilized in the event of an emergency. (J. I. Exh. 111.)

1 j , .

tre out-of-date anc' arity, responsibilities, I.

) tons. (3- 1. Exh. 1118 i

I I

tote coordination of  !

i 2 d to implement the plans. I i

_ JO*' W g

-. u~.*- % ,,,. 4 . N +ynyt;-4 m . % g .,.~..,,,;,

f

.

• stem a

e, State, and local plans

$ncy classification system 18/

' ate response measures.-

i

.l classification scheme -

l 54. While PGandE's -

lquantification of parametric l

I classification scheme f I. Exh. 111.)

i f?rlocalplanscontain 1

action which rake into - - ,

t the time of the emergency.

for ins considers and allows

_multaneously with a radio- I L

I l

he absence of coordinated ation systems as a

ency preparedness at

logical emergency.19/ -

(Jorgensen, at 2: Sears, at 3; Sears, Tr. 11060.)

(E) Notification Methods and Procedures (1) The early warning system described in Appendix III of NU?IG-0654 is not projected for completion prior to fuel load. (bhiffer, Tr. 10696.)

(2) None of the relevant plans contain the actual wording of emergency measures or the standard format for detailed initial and follow-up communications. (J. I. Exh. 111; Shiffer, Tr. 10699.)2q/

'3) Although PGandE and the Staff rely on the ability of the County Sheriff to notify all persons in the LPZ in the event of an accident at low power, the Sheriff has never attempted to notify all residents and visitors in that area nor is there any estimate based on actual experience of the time such notification would take. The Sheriff has not prepared a written statement to give to persons in the T.PZ upon notification in explanation of what actions to take, 19/ See discussion infra at 29-31 regarding the failure of existing plans to allow for a radiological emergency occurring simultaneously with an earthquake.

20/ The Kemony Commission criticized the NRC Commissioners' role in the TMI-2 accident response in part because they were preoccupied with the drafting of a press release. (J. I.

Exh. ll4A, at 40.) The Kemeny Commission recognized that during a radiological emergency such things as the wording of noti fi-cation messages should not require significant attention.

how much time is available, and what is actually occurring.

Adverse weather conditions could preclude the use of helicopters for notification purposes. The feasibility of notification by helicopter in remote areas of Montana de Oro State Park has not been demonstrated. (Shiffer, Tr. 10866, 10871; Sears, Tr. 11068, 11252.) 1!

(4) The State plan contains no information on procedures or systems for notification, alerting, or mobilizing. emergency personnel and no detailed discussion of the time required to instruct the public. (J. I. Exh. 111.)

(5) Neither the State nor local plans incorporate an Early Warning System which satisfies Appendix III of NUREG-0654.

(J. I. Exh. 111.)

(F) Emergency Communications (1) Applicant, State, and local plans contain insufficient description of communication plans, including i NURSG-0654 criteria. Neither th( State nor local plans discuss communication capability with State, local, and federal emergency response organizations. (J. I. Exh. 111.)

(2) None of the relevant plans discusses a periodic -

communications testing program. (J. I. Exh. 111.)

(3) The County does not have adequate communica-tions equipment to reach headquarters and other personnel.

In fact, during a drill in 1979, County Health Department 11/ See discussion infra at 32-34.

personnel were forced to use a pay telephone to communicate the results of their findings. (Mitchell, at 1; Mitchell, Tr. 10916, 10958, 10960; Jorgensen, at 2.)

(G) Public Education and Information22/-

(1) PGandE has not implemented a public information prog. m. PGandE has taken no action to inform the LPZ resi-dents what medical facilities to contact in the event of radiation-related injury, what actions to take in the event of a radiological emergency, what the risks of low power testing are, and, aside frc,m publishing its emergency plan, what the evacuation routes are. (Scars, at 5; Sears, Tr. 11064; Shiffer, Tr. 10874-75.)

(2) The State and local plans contain no discussion of a public information program. (J. I. Exh. 111.)

(3) At the local level, there has been no system-atic public information program designed to educate the public on necessary actions, including evacuation and shelter, to be taken in the event of a radiological emergency.

(Jorgensen, at 2.)

l (II) Emergency Facilities and Equipment l

(1) At the time of fuel loading for low power testing, the three principal emergency facilities will not comply with al? criteria set forth in NUREG-0696, entitled 22/ See discussion infra at 32-34.

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f

" Functional Criteria for Emergency Response Facilities, Final i Report." (Shiffer, Tr. 10674.)

(2) The interim offsite emergency operations facility is a trailer, and the permanent facility is not projected for completion prior to fuel load. The interim facility is not a seismic Class I structure. (Shiffer, at 10; Shiffer, Tr. 10680, 10698.)23/ -

(3) Although the operational support center ("OSC")

is the staging area for emergency support personnel, PGandE does not intend to ccmpy with the NUREG-0654 requirement that certain specified supplies be stored there, including respiratory protection, protective clothing, portable lighting, monitoring equipmant, cameias, and communications equipment. (Shiffer, at 10; Shiffer, Tr. 10676.) The OSC is not a seismic Class I structure. (Shif fer, Tr. 11306.)

(4) The State plan contains no discussion of an emergency operations center, the tin,aly activation of staffing for such a facility, or identification of emergency equip-ment. (J. I. Exh. 111.)

3 (5) None of the plans addresses the periods of inspection, replacement, and calibration of emergency 23/ The board notes the imoortance of the Emergency Operations l

Facility to the overall emergency response capability of the

' combined organizations. The purpose of the facility is to provide overall direction of the offsite activities from PGandE's standpoint, and it is intended to serve as a conduit to(Shiffer,offsite acencies for information regarding activitics onsite.

Tr. 10753.) The particular vulnerability of the interim facility to inclement weather conditions and to seismic activity is not an insignificant factor.

equipment. The State plan provides no indication of the ,

location of radiological monitoring equipment. PGandE's orsite plan contains an inadequately detailed discussion of meteorological instrumentation. (J. I. Exh. 111.)

(I) Accident Assessment (1) The County has inadequate monitoring equipment beyond the site boundaries. (Mitchell, at 1.)

(2) The onsite and state plans contain insufficiently detailed discussion of methods, equipment, and expertise for rapid assessment of the actual or potential magnitude and locations of radiological hazards. (J. I. Exh. 111.)

(3) Monitoring instruments installed by PGandE are located away from where the problem is -- few, if any, are located in the area of concern for low power. (Mitchell, Tr.

10910; PGandE Exhs. 67, 69.)

(4) The County has an inadequate and overly dispersed staff to conduct monitoring. (Mitchell, Tr. 10910.)

(5) The maps included in the onsite plan do not constitute accurate and up-to-date descriptions of the number and location of monitoring instruments. (Shiffer, Tr.

10780.)

(6) None of the monitoring instruments can be interrogated by radio; therefore, the data must be obtained by vehicle and, for all but the few real time instruments, further analysis must then be performed, either in the field or at the facility. (Shif fer, Tr. 10780.)

(J) Protective Response (1) The' local plans have not been implemented, and they provide no substantial protection to the general public in the event of a radiological emergency. For the foreseeable future, the County will not be able to respond effectively to a radiological emergency at Diablo Canyon. (Jorgensen, at 1-3.)

(2) The.onsite plan does not address the times necessary to warn the public and take protective actions.

(J. I. Exh. 111.)

(3) The County plans don't discuss the effects on emergency response of inclement weather, high traffic density, and specific radiological conditions, nor do such plans address the means for protecting those persons whose mobility may be impaired due to such factors as institutional or other confinement. Maps attached to the State and local plans do not indicate relocation centers and shelter areas.

(J. I. Exh. 111; Mitchell, at 2.)

(4) The State and local plan fails to discuss projected traffic capacities of evacuation routes under emergency conditions, identification of and means for dealing with potential impediments (. a., seasonal impassibility of roads) to evacuation routes, and time estimates for evacuation of various areas based on a dynamic analysis.

(J. I. Exh. 111.)

(5) An ability to notify promptly all segments of the transient and resident population of the LPZ has not e- , - . - - . ,- - - - ~ - , , , n , ,,-- m --

w--

been demonstrated, nor has the County Sheriff or PGandE attempted to do so. (Shiffer Tr. 10867; Sears, Tr. 11068-69.)

(6) The onsite plan should be revised :o include new maps, population distribution information, and the bases for choice of recommended protective actions. (J. I. Exh. 111.)

(7) The local plan does not provide for use, quantities, storage or distribution of radioprotective drugs.

9 (J. I. Exh. 111.) 4/

(8) The lettar of understanding between PGandE and the California Department of Forestry for fire fighting support onsite has been rescinded by CDF. (Paulus, at 4.)

(9) None of the relevant plans considers and allows for a Diablo Canyon emergency occurring in conjuncticn with a major earthquake on the Hosgri Fault. (Jorgensen, at 2,-

Sears, at 3; Sears, at 11060; J. I. Exh. 117.)

(K) Radiological Exr)sure Control (1) PGandE's onsite plan contains an insufficiently specific discussion of (a) EPA Protective Action Guides (PAG's) for a-tions specified in NUREG-0654, (b) application of any existing radiation protection measures to emergency situations, (c) an onsite dosimetry program, (d) radiation control procedures, contamination control measures, and (c) decontamination capability for onsite personnel. (J. I. Exh. 111.)

2*/ See discussion of radioprotective drugs by Kemeny Cctaission in its Report, J. I. Exh. ll4A, at 41-42.

(2) State and local plans contain no detailed discussion, if any, of means for decontamination of personnel and equipment and for waste disposal.

(L) Medical and Public Health Support (1) The County has inadequate medi cal f acilities tc transport and treat persons in the event of a radiological emergency. (Jorgensen, at 2; Mitchell, at 2.)

(2) The County Health Office is inadequately staffed to respond to a radiological emergency at Diablo Canyon. (Mitchell, at 1.)

(3) The County Division of Environmental Health's Standard Operating Procedures for Nuclear Power Plant Emergency Response can't be implemented. (Mitchell, at 2.)

(4) "he County is inadequately informed about and has necer attempted to evacuate persons requiring ambulances frca the LPZ and immediately surrounding area. Limited ingress and egress presents difficulty in removing persons with special needs. (Mitchell, at 2.)

(5) Despite the absence from the letter of agreement between PGandE and the San Luis Ambulance Service of any ple'ge to treat radiation-related injuries, PGandE's onsite plan improperly states, in reliance upon that letter, that the Ambulance Service has committed to handle personal injury cases involving radioactive contamination. (Shifter, Tr. 10670-71.)

(6) The State plan cites reliance upon local authorities for medical services. No further 'iscussion is provided. (J. I. Exh. 111.)

(7) The discussion of medical provisions in the local plan is insufficiently specific. (J. I. Exh 111.)

(B) Regarding PGandE's onsite medical preparedness, there is no doctor onsite; no assurance of getting an ambulance promptly; no estimate of ambulance time or previous drill on the Field Ranch Road (main alternate route to and frc= the site);25/ no plan for transport of injured persons to St. Francis Hospital in San Francisco; no speci-fication of the capacity of or numbers of doctors available at St. Francis Hospital; only one NuCon contaminated personnel carrier onsite; and no record of which ambulance personnel have actually been trained. (Shiffer, Tr. 10695, 10865, I

10686, 10693, 10673, 10800, 10688, 10692.)

(9) Because the County is short on ambulances, PGandE and local officials cannot be certain at any particular moment that any of the ambulances will be available to respond to injuries other than, for example, automobile accidents and heart attacks. (Shiffer, Tr. 10865; Mitchell, Tr. 10912.)

25/ PGandE witness Shiffer stated on cross-examination that the Field Ranch Road is slippery and muddy in adverse weather conditions. (Tr. 10799.) He also admitted that a member of the Field family had recently informed him that the road is

" impassible in wet weather and during the winter for as much as two weeks at a time." (Tr. 10870.)

l l

l l

(M) Recovery and Reentry Planning and Post-Accident Operations l (1) Applicanc, State, and local plans are insufficiently specific. The State plan contains no description of plans or procedures, and the local plan, while providing general guidance, contains no specific procedures on reentry and recovery. (J. I. Exh. 111.)

(N) Exercises and Drills (1) Beyond reference to an annual exercise, the State plan contains no discussion of drills. The plan does not describe how the exercise is to be carried out, whether observers are to be present, or whether it is consistent with NUREG-0654. 'J. I. Exh. 111.)

(2) The local plan contains no specific exercise requirement. (J. I. Exh. 111.)

(3) The existing onsite plan does not provide for drills and exercises consistent with NUREG-0654. (J. I.

Exh. 111.)

(4) No general exercise or drill has been held

[

i involving applicant, State, an'd local officials with the r

i public participating. (Shif fer, Tr. 10700.)

l l (5) There have been no full scale exercises to 1

! demonstrate the effectiveness of the local plans. (Jorgensen, at: 2.)

(G) The County Sheriff '.ias never conducted a l

! drill involving notification of all areas of the LPZ.

l

According to Dr. Mitchell, the Sheriff's personnel did not even go to See Canyon during the 1977 drill. (Shiffer, Tr.

10866-67; Mitchell, Tr. 10916.)

(7) The 1977 and 1979 local drills did not demonstrate adequate preparedness. Moreover, neither simulated a real-life emergency in that persons involved were not dispersed throughout the County as they would be in the event of an actual emergency. (Mitchell, Tr. 10916.)

(8) PGandE's onsite plan does not requir' communications drills. (Shiffer, Tr. 10701.)

(9) No full scale exercise is planned prior to fuel load. (Shif fer, at 32 )

(O) Radiological Emergency Response Training (1) California Department of Forestry employees have not received the radiation training which PGandE agreed to provide. (Paulus, at 203; Paulus, Tr. 10986.)

(2) PGardE's onsite plan contains an insufficiently detailed discussion to determine whether requisite training is provided. (J. I. Exh. 1] l . )

(3) State and local plans contain no specific training requirements. (J. I. Exh. 111.)

(4) There is no adequate training or coordination of local personnel. (Jorgensen, at 2.)

(5) Relatively few physicians in San Luis Obispo County have the training or equipment necessary to handle and treat radiation-related injuries. (Mitchell, Tr. 10911.)

(6) State and local plans do not provide for training specified in NURFG-0654, including training of coordinators of response organi?ations, accident assessment personnel, radiological monitoring personnel, police, security personnel, firefighters, maintenance personnel,

. first aid and rescue personnel, local support services personnel (i.e., Civil Defense), medical support personnel, license headquarters personnel, and communications personnel.

(J. I. Erh. 111.)

(P) Respons ity for Planning Effort:

Development and Periodic Review and Distribution of Emergency Plans (1) The State p'_an contains no discussion of this standard. (J. I. Exh. 111.)

(2) The County plan is insufficiently specific dnd hasn't been revised since its issuance. Neither the State nor local plan is cross-referenced to NUREG-0654.

(J. I. Exh. 111.)

(3) The phone rumbers in the applicant, State, and local plans have not been updated. (J. I. Exh. 111; Shiffer, Tr. 10669.)

(4) The applicant and State plans do not contain Standard Operating Procedures as required by NUREG-0654.

(J. 1. Ex!. . 111.,

20. The board finds further the none of the relevant onJite or offsite emergency plans considers and allows for i

the effects of a major earthquake on the Hosgri Fault occurring simultaneously with a radiological emergency at Diablo Canyon.26/ -

Cn December 16, 1980, the NRC requested that PGandE evaluate "the potential complicating factors which might be caused by earthquakes which either initiate or follow the initiation of accidents." (J. I. Exh. 117, at 1.) Specifically, the evaluation must consider two general cases:

First, a severe earthquake at the site which could disrupt normal and auxiliary services and thereby cause the clant to be in a degraded mcde should ca considered. ***

The facility plan should be capable of functioning under such conditions. Of principal importance under such conditions would be augmentation of the facility staff and supp,rting resources to assure that a more severe accident did not develop. Factors to be considered for your facility plans should include the impacts due. to poten ial disruption of communications networks s 1 transportation routes. Your concern sh.uld be the availability of resources m ad personnel to augment onsite staff, transit to and among emergency response facilities an; communica-tions with offsite organizations. * **

The second case which should be considered is an earthquake offsite which disrupts communi-cations networks and transportation routes in particular locales. In California, such occurrences appear to be frequent enough to warrant consideration in your emergency plans. The procedures to be used to determine the protective actions recommended to offsite authorities should be revised to incorporate consideration of earthquaka ef fects of fsite.

Evacuation time estimates should incorporate consideration of local transportation route disruption. (Id.)

26/ See Jorgensen, at 2; Sears, at ,; Sears, Tr. 11060, 11283; Shiffer, Tr. 10875-79.

In addition, the NRC requested FEMA to review the adequacy of State and local capabilities with respect to response during earthquakes.2'7/

21. The earthquake analysis requirement is based on the Commission's appreciation of the greater seismic risk associated with .aclear plants located in California relative to facilities in other areas. (Sears, Tr. 11060.) The NRC has not received such an analysis from PGandE, nor has FEE, reviewed the adequacy of the State ind local capabilities with respect to earthquake effects. Although both PGandE and the Staff rge that the seismic evaluations are not required prior to lo't power operation, no logical justification for such a view was offered at the hearing, and there is no factual basis to conclude that the effects of an earthquake on emergency response capability will be reduced at power levels below Diablo Canyon's full capacity. Particularly in light of the continued importance of seismic safety in this proceeding (Sears, Tr. 11060), the board considers the absence of any analysis of and preparation for earthquake effects on emergency planning on and offsite to be a critical deficiency in emergency preparedness at Diablo Canyon.28/ -

27/ Memorandum from Grimes to McConnell, " Request for FEMA Assistance to Review Effects of Earthquake and Volcanic Eruption on State / Local Emergency Plans" (Nov. 3, 1980) (J. I. Exh. 117).

i 28/ The board notes the recent licensing board decision in i In the Matter of Southern California Edison Co. (San Onofre Muclear Generating Station, Memorandum and Order, at 2 (April 8, 1981),

where the board recognized that "[alpplicants, particularly appli-cants in a seismically active area like California, should be prepared to demonstrate that their emergency plans can function in a major earthquake situation."

. .. _ _ . __ ~ -

22. Of the numerous emergency planning deficiencies cited above, PGandE and the Staff focussed specifically on the absence of an early warning system and a public information program. In an attempt to minimize the significance of this conceded noncompliance with the Commission's regulations, both parties cited (1) increased time to respond which might permit

" house-to-house" notification of LP residents by the County Sheriff and (2) PGandE's intention to circulate a public infor-mation brochure just prior to fuel loading for low pcwer testing.

(Shiffer, Tr. 10S40, 10S72, 10974; Sears, at 4-5; Sears, Tr.

11067, 11251.) This board disputes such testimony for several

ons . ' First , the Sherif f's capability for prompt notification of all segments of the resident and transient population in the LPZ has never been demonstrated. Although some of his deputies may have been dispatched to See Can';on during a drill in 1977, there is no evidence as to what precisely occurred nor does that action provide any assurance that notification of all persons throughout the LP , including Montana de Oro State Park, can be promptly accomplished by the Sheriff. (Shiffer, Tr.

10866-7; but see Mitchell, Tr. 10916.)2'9/

29/ In addition, although plant operators may have more time during low power operations to prevent a routine transient

1. rom developing into a serious accident, there is no evidence or assurance that such additional time will also be available once it becomes apparent that protective actions offsite will be necessary. It is indeed a possibility that, regardless of whether the plant is operating at low or full power, public notifi-cation of the need to evacuate would be delayed as long as pas;ible in order to avoid needless public panic or evacuation.

The Kemeny Commission noted that one of the reasonn emergency planning had a low criori:. wirP the NRC was the desire to acoid raising public concern about the safety of nuclear power.

(J. I. Exh. Il4A, at 38.)

23. Second, the public understanding -- at least within the LPZ -- of essential emergency response information is virtually nonexistent. On cross-examination, James Shiffer, on behalf of PGandE, conceded that PGandE had taken no actions to inform the residents of the LPZ regarding (1) the risks to them of low power operations, (2) the available medical facilities ecuipped and staffed to treat radiation-related injuries resulting from an accident at the plant, and (3) the most appro-priate actions to take in the event of such an emergency.

(Shi f f er , Tr. 10874-75.) Similarly, John Sears, on behalf of the Staff, testified in effect that apart from inclusion of the local plans in its onsite plan, PGandE has not demonst' rated that the public knows what the evacuation routes are. (Sears, Tr. 11064.) Although PGandE has apparently been preparing a public information brcchure, it is only in draft form. (Se ars ,

at 5.)

24. In light of such testimony, the board cannot agree with the view expressed by PGandE and the Staff that at the present time there is no real purpose for a public information progra:.. (Shi f fer , fr. 10872; Sears, at 5.) We find that increased public understanding and awareness of the kinds of information mentioned above would greatly facilitate implementation of emergency protective actions when necessary and that dissemina-tion of such information at the earliest possible date would increase the likelihood that all segments of the resident l

- , + - - - ~ , - - - ~,...----,,,y-

7 and transient population of the LPZ will be adequately informed.10/

Had the Commission intended that a public information and education program regarding emergency recponse need be instituted only weeks prior to actual operation of a nuclear facility, its regulations certainly would reflect such a view. In order to assure the best possible response by the public this board believes that PGandE should have instituted a public information program long ago. The absence of a final determination as to method of notification is no excuse.

26. To demonstrate the adequacy of the Diablo Canyon offsite plans, the Staff, through the Sears testimony, cites an alleged FEMA " finding" documented in (1) a Memorandum for Harold R. Denton and John W. McConnell from FEMA /NRC Steering Committee and (2) a FEMA /NRC Interim Agreement on Criteria for 30/ The Kemeny Commission recognized the direct connection between an adequate public information program and effective emergency preparedness. In its Report, the Commission recommended the following:

If emergency planning and response to a radiation-related emergency is to be effective, the public must be better informed about nuclear power. The Commission recommends a program to educate the public on how nuclear power plants operate, on radiation and its health effects, and on protec-tive actions against radiation. Those who would be affected by such emergency planning must have clear information on actions they would be required to take in an emergency.

J. I. Exh. 1143, at 77.

1

Low Power Testing at New Commercial Facilities. (Sears, at f.)31/

On cross-examination of Sears, however, a number of significant facts were revealed. First, regarding the extent of Sears' personal knowledge of the basis for the documents, (a) he was not a member of the FEMA /i!RC Steering Committee at the time the documents were issued (Sears , Tr. 11016); (b) he was not present at the Steering Committee meetings at which they were discussed (Sears, Tr. 11069-70); (c) he did not personally know whether FEMA actually reviewed the specific Diablo Canyon offsite plans for adequacy prior to the issuance of those documents (id. ) ; and (d) he had no personal knowledge of the Denton-McConnell corres-pondence cited in the FEMA /NRC Interim Agreement nor could he recall whether such correspondence contained any reference to an evaluation by FEMA of the specific Diablo Canyon offsite plans.

(Sears, Trs 11081, 11270.) In fact, such correspondence contains no reference to Diablo Canyon or its emergency plans. (Gov.

Brown Exhs. 4 and 5.)

27. Second, regarding the content of such documents, (a) there is no indication that FEMA evaluated the Diablo Canyon site-specific offsite rians (Sears, Tr. 11079); (b) the word

" finding" does not appear in either of the two documents (Sears, Tr. 11264); and (c) they form the basis not only for Sears' i

i conclusion but also for the Staff's statement in SER Supp. 12, t

31/ In its Proposed Findings of Fact and Conclusions of Law, PGandE also relics on FE:1A/NRC documents in support of its claim that the Diablo Canyon offsite plans are adequate. PGandE's Proposed Findings of Fact and Conclusions of Law, at 5-6, 34 (June 1, 1981).

h at III-3, that FEMA had 'previously specifically approved the emergency preparedness at Diablo Canyon for low power testing on an interim basis." (Sears, Tr. 11277.)32/ -

28. In light of this evidence, the board can only conclude that FEMA, which is the federal agency responsible for review of offsite plans prior to plant licensing by the NRC,33/ -

has neither 32/ The parties stipulated that the FEMA /NRC Steering Committee documents relied upon by Sears were issued on March 12, 1980. (Tr. 11084.) Thus, any " finding" by FEMA approving emergency preparedness for low power operations at Diablo Canyon would have to have been made at least eight months prior to the effective date of the Commission's revised emergency planning regulations and four months before PGandE even applied for a low power license. Sears was apparently unaware of this, and, similarly, he did'not know whether the proposed Diablo Canyon low power test program had ever been routed either to FEMA or the FEMA /NRC Steering Committee. (Sears, Tr. 11071, 11091.)

33/ See " Memorandum of Understanding Between URC and FEMA to Accomplish a Prcmpt Improvement in Radiological Emergency Planning and Preparedness" ("MOU") (January 11, 1980) (Gov. Brown Exh. 3). This memorandum was entered into in response to the President's December 7, 1979 decision "that FEMA will take the lead in off-site planning and response. . . ." MOU, at D-3.

Under section II of the agreement, FEMA's responsibilities include the following:

1. To take the lead in off-site emergency planning and review and assess State and local emergency plans for adequacy.

3. To complete, as scon as possible, the review of State and local plans in thosc states affected by plants scheduled for operation in the near future.

4. To make findings and determinations as to whether State and local emergency plans are adequate and capable of implementation (e.a.,

adequacy and maintenance of procedures, training, resources, staffing levels, and qualifications and equipment adequacy).

MOL, at D-4.

l reviewed the specific Diablo Canyon offsite plans nor found them adequate for low power testing. The FEMA /NRC Steering Committee documents relied upon by the Staff give no indication whatsoever of any substantive f.'nding by FEMA with respect to either the State or local plans.55! Moreover, the testimony by Sears at the hearing indicated clearly his lack of personal knowledge concerning the basis for the documents cited by him, thereby undercutting as well the support for his own conclusion that the Diablo Canyon offsite preparedness is adequate. His lack of personal familiarity with the basis for the FEMA /NRC documents effectively prevented other parties from encuiring into that issue on cross-34/ The Interim Agreement notes that Diablo Canyon is located in a state with an emergency plan which has received an NRC concurrence. This clearly does not, however, relieve FEMA of its obligation to review the specific offsite plans prior to licensing by the NRC. As the Director of FEMA stated in the June 24, 1980 Notice of Proposed Rulemaking entitled " Review and Approval of State and Local Radiological Emergency Plans and Preparedness":

[T]he lead for review of the adequacy of offsite emergency plans and their capability of implemen-tation has been placed in FEMA and there is no longer an NRC voluntary concurrence program for

• *

• The previous MRC State emergency plans.

" concurrences" do not satisfy all the recuirements for fella approval of State and local plans under this regulation.

45 Fed. Reg. 42341, 43242 (emphasis added).

Moreover, Mr. Shiffer (PGandE) acknowledged on cross-examination that the State plan is only a "back-up" nlan, while the primary legal responsibility for offsite response rests with the local jurisdiction, the County of San Luis Obispo.

(Shiffer, Tr. 10746-47.) For obvious reasons, therefore, review of the local plans is essential to a true understanding of the state of emergency preparedness at Diablo Canyon.

examination, an issue which the board considers critical in this proceeding.35/-

Accordingly, in the absence of any evidence of a substantive review by FEBIA of the Diablo Canyon of fsite plans, we cannot afford any substantive weight to the so-called fem " finding" referred to by the Staff in the Sears testimony and embodied in the FEMA /NRC documents cited therein.

C. Risk of Low Power Oooration

29. In essence, both PGandE and the Staff contend that any deficiencies in the existing Diablo Canyon emergency plans are insignificant in view of the reduced level of risk during low, in comparison to full, power operation. While PGandE concedes that even at low power offsite preparedness is necessary to the outer edge of the low population zone (six 35/ This board cannot rely upon testimony of a witness unable to provide the basis for his conclusions. In the Matter of Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), ALAB-555, CCll . N uc l . Reg . Re p . 9 30,407, at 29,042 (1979). In Virginia Electric, the Appeal Board stated this principle in unmistakable terms:

Manifestly, it will not do for an expert witness to state his ultimate conclusions on a crucial aspect of the issue being tried and then to profess an inability

-- for whatever reason -- to provide the foundation for them to the decision-maker as well as the other litigants. Indeed, a trier of fact would be derelict in the discharge at its responsibilities were it to rest sionificant findings on c::nressions of a port ouinion not susceptible at being tested on examination of the witness. A licensing board decision suffering from

• mch in formity would be a fit candidate for reversal.

Id. at 29,043 (omnhasis added).

t i

EXHIBIT F: BOARD NOTIFICATION RE RELIEF AND SAFETY VALVE PERFORM ANCE T55 TING a

I

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{  % URilT E D STAT Es

[ '}. . q'[ } NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 5 ,', Q]p ., af S /* %,. 4A g s,'.....' JUL 161931 Docket flus.: 50-275/323 MEMORAi1DUM F0.1: The Atomic Safety and Licensing Board for the Diablo Canyon fluclear Power Plant, Units 1 & 2 FROM: Robert L. Tedesco, Assistant Director for Licensing, DL

SUBJECT:

BOARD T10TIFICATIO!1 - ELECTRIC POWER RESEARCH IrlSTITUTE RELIEF & SAFETY VALVE TESTIriG PROGRAM UtlITS 1 & 2 (Bri 81-15)

During the flay,1981 Diablo Canyon low power proceedings, it was stated that the Electric Power Research Institute (EPRI) program for the confirmatory testing of relief valves and safety valves was schec 31ed to be completed by July 1, 1981. There have been some delays and the testing of the relief valves (PORV) is scheduled to commence the week of July 13, 1981 and is expected to be completed by the end of July. The revised schedule for conducting tests on the safety valves will be available in the very near ,

future and we will apprise you of it as soon as it becomes known and wi r* notify you of any further developments. It is the staff's view that the change in the schdule with regard to the generic confirmatory test program will not adversely affect the operation at the Diablo Canyon plant.

- b &cl%cc, Robert L. Tedesco, Assistant Director for Licensing Division of Licensing

1 EXHIBIT G: LETTER FROM STAFF COUNSEL TO LICENSING BOARD RE PROJECTED COMPLETION DATE FOR VALVE PERFORMANCE TESTING (without attachments) (July 24, 1981) a

G V t'

/

p pm nucy[o UNITED STATES

'g NUCLEAR REGULATORY COMMISSION y , f, g W ASHINGTON, D. C. 20555 g ?- .p

. O g July 24, 1981

\ ..... /

John F. Wolf, Esq. , Chairman Dr. Jerry Kline Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S. iluclear Regulatory Commission U.S. fluclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Glenn 0. Bright, Esq.

Administrative Judge Atomic Safety and Licensing Board Panel U.S. tiuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Pacific Gas and Electric Company (Diablo Canyon fiuclear Power Plant Units flos. I and 2)

Docket flos. 50-275 0.L. & 50-323 0.L.

Dear Members of the Board:

On July 16, 1981, the NRC Staff hand-delivered a board notifica' tion to you concerning the EPRI/PWR Safety and Relief Valve Qualification Program which is being generically conducted to meet the conditions of item II.D.1 in tiUREG-0737. As you know,t4UREG-0737 indicates that the testing program was to have been completed by July 1,1981. However, in a meeting with the 14RC Staff last week, representatives of EPRI and PWR utilities indicated that testing is taking longer than anticipated and it is nod expected that the program will require an additional four to eight months.

In the Board's Partial Initial Decision dated July 17, 1981, the Staff's and Applicant's testimony to the effect that program completion need not be required before fuel load was cited in the Board's findings on contention 24 which was restricted by the Board's prehearing conference order to the question concerning when block valve testing should be completed. However, it was anticipated at that time that testing of relief and safety valves would be complete as a practical matter prior to fuel load. While paragraph 150 of the PID indicates that the Board found the design and testing of relief and safety valves done to date i

l sufficient to demonstrate their low risk of failure, the Board notes in paragraph 153 its expectation that the EPRI test program for relief and safety valves would be complete prior to fuel load.

The Staff plans to present the change in program completion dates to the Commission as a generic fiUREG-0737 action item. However, the Staff remains of the view that program completion is not a required prerequisite to fuel load and low power test authorization. Consequently,

, , _ _ , , _ _ . _ _ ~ ,- ,,,..y._, -,

_ . . , , s,._,, .-,y.,_._,._,__._,p._,,  %.., - ,p .,. ,y,_ , ,g,,,y _ ,, ,._ym~,.

E no action with regard to the Board's Partial Initial Decision is 4

required. For the Board's information, a copy of the July 22, 1981 l meeting minutes containing information on the current EPRI/PWR Safety

]

and Relief Valve Program schedule is attached.

Sincerely,

/

i . ^ ~

i llJ /.

f j Willian J. mstead

' Assistant Chief Hearing Counsel e

Enclosures:

As stated cc: Service List i

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, _ _ . _ . , . _ . . . - _ , - , . _ . . _ . . - - ,-,. .. ., .-_ ,_ ,,_ _ .. . _ ___, _ _,,_ _.,_, _ .-.. _ _ _ _ _ _ _ ., _ .. - _ _-