ML20137A647

Discusses Commission 850812 Response to E Markey Requests That NRC Reconsider Decision on Earthquakes & Emergency Planning.Decision Cannot Be Reconsidered Since Jurisdiction Passed to Us Court of Appeals

ML20137A647
Person / Time
Site:	Diablo Canyon
Issue date:	08/16/1985
From:	Asselstine J NRC COMMISSION (OCM)
To:	Markey E HOUSE OF REP., ENERGY & COMMERCE
References
NUDOCS 8508210450
Download: ML20137A647 (16)

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-R August 16, 1985 The Honorable Edward Markey, Chainnan Subcomittee on Energy Conservation and Power Comittee on Energy and Comerce United States House of Representatives Washington, D.C. 20510

Dear Mr. Chainnan:

In two letters of August 12, 1985, the Comission responded to your request to reconsider its decision on earthquakes and emergency planning in Diablo _

Canyon. The Comission attempts to hide behind transparent legalisms to justify not responding to your request that the Comission reconsider its decision.  :

The Comission states that its hands are tied, that it cannot reconsider its decision, because jurisdiction over that issue has passed to the U.S.

Court of Appeals for the District of Columbia Circuit. While jurisdiction i may indeed have passed to the Court, the Comission's answer simply begs -

the question. The Comission has not explained why it would not be appropriate to seek judicial approval to have the matter remanded to it.

The recent views of the staff and the ACRS amount to new infonnation which would clearly support a Comission decision to reconsider its August 1984 decision. It defies belief tiat the Comission would sit helplessly by contending that it had no jurisdiction if new information suggested that a safety issue had been decided wro.' gly against a licensee. Moreover, Comission reconsideration would not raise a Pillsbury problem. All.the Subcomittee requested was that the Comission reconsider its decision.

Given the recent views of the ACRS and i'RC staff that the Comission should give some consideration to the effects of earthquakes on emergency planning, the Subcomittee's request that the Comission reconsider would clearly not be the only motivation for a change in the Comission's position.

The Comission provides no better response to your request to reconsider the proposed rule. The NRC staff has already informally told the Comission that einergency plans should consider the effects of earthquakes on comunications and transportation to and from the plants. The ACRS has supported this view in a meeting with the Comission. Under these circumstances, a meaningful proposed rule would suggest ways of ensuring the survivability of cormonication and transportation links. The coments on such a rule would provide the Comission with the factual basis for choosing the most effective means for accomplishing this goal. As it DE RE

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stands now, the proposed rulemaking addresses onlyanswer If the the issue to of whether that question to consider the effects of earthquakes at all.

is going to be yes, as the NRC staff and ACRS analysis suggests, a second round of rulemaking may be necessary. The Commission should recognize that fact and get on with it.

Finally, the Commission spent some effort in attempting to debunk the Subcommittee staff's report to you. Since many of the staff's criticisms of the Connission's actions echo criticisms I made, I feel compelled to respond to the Commission's " report". My views on the Commission's criticisms are enclosed.

Sincerely,

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James K. Asselstine

Enclosure:

i As Stated cc: Rep. Carlos Moorhead

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REPORT TO THE SUBC0fMITTEE ON ENERGY CONSERVATION AND POWER i

The Comission stated: C This report identifies significant inaccuracies in the July 9,1985 memorandum from the Subcomittee Staff to Chaiman Markey.

f Comissioner Asselstine's response: _

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Comissioner Asselstine believes that the Comission's report, which I

identifies "significant inaccuracies" in the Subcomittee staff report, itself contains errors. He has attempted to identify some of the more egregious errors below.

PAGE 4 The Comission stated:

Contrary to the Staff report, the Comission did not base its Diablo Canyon decision on a belief that the earthquake / emergency planning issue is generic in nature. The Diablo Canyon decision rests on the information in the record of the Diablo Canyon case. That infonnation supported the Comission's judgment that there was no need to adjudicate the effects of

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earthquakes on emergency planning because the probability of a contemporaneous occurrence of an earthquake and a radiologic release from the Diablo Canyon plant would be very low.

Comissioner Asselstine's response:  ;

The Comission states that it did not base its decision on a belief that the earthquake / emergency planning issue is gene ic, but rather on the record of the Diablo Canyon case. The answer does not square with the I facts. In San Onofre, the Comission removed the issue from individual ,

I adjudications and left that issue to rulemaking. That decision was based on the alleged generic nature of the issue. In Diablo Canyon the l Comission reaffirmed its San Onofre decision. That decision was again a generic interpretation of the Comission's rules. This generic  ;

determination was a major part of the basis of the Comission's determination that the issue was not material to licensing of Diablo i i

Canyon. See discussion below at pp 10-11. The Comissicn then went on to i l

l find that the record in Diablo Canyon did not require a waiver of the g generic'detennination in San Onofre. This determination was based on I

statements regarding the probability of occurrence of an SSE or of an earthquake-induced radiologic release. Thus, the record does not support j the Comission's revision of history.

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The Commission stated:

l The Commission did not state that the " seismic risk" at Diablo Canyon is " low to moderate" nor did it convey the impression that the'" seismic risk" at Diablo Canyon is insignificant. Rather, the Commission found that seismicity, the frequency of earthquakes, at the Diablo Canyon site was low to moderate. The Subcommittee staff's presentation improperly uses I frequency and magnitude interchangeably. Seismicity or frequency is different from magnitude or possible energy released by an earthquake at the site. There is no question ~that the magnitude of the Safe Shutdown Earthquake at the site presented the possibility of a very infrequent but i very large energy release that was relevant to how the plant should be designed to shut down safely in the event of such an earthquake. This risk '

is different, however, from the frequency of earthquakes.

The above discussion also applies to the Subcommittee staff's comment on page 8 which again confuses the NRC staff's statement regarding seismic risk in California with the Appeal Board's finding regarding seismicity of the Diablo Canyon site.

Commissioner Asselstine's response:

The Commission takes the Subcommittee staff to task for supposedly confusing seismic risk with seismicity, the frequency of earthquakes at the 1

4 site. This is' nothing more than a technical quibble, a red herring, which attempts to divert attention from what the Commission really did. There can be no doubt that the Commission's decision attempts to justify not considering the effects of earthquakes on emergency planning by creating the impression that there is only a vanishingly small probability' that an

, earthquake will result in a radiological release requiring invocation of the emergency plan. The Commission's reasoning presents a straight line from " low to moderate seismicity" to vanishingly small seismic risk for the _

purposes of emergency planning. If the Commission had not found seismic risk to be insignificant, it could not have concluded that the effects of -

earthquakes on emergency planning were immaterial. Therefore, the Commission's continued attempts to muddy the waters with this distinction are just absurd.

Further, the Commission's argument that the seismic risk is too low to be considered for purposes of emergency planning is just wrong. Both the ACRS and NRC staff experts have told the Commission this. The Commission's e

decision is based on probabilities which are full of uncertainty; it  !

ignores fundamental precepts of emergency planning; and by focusing on the contemporaneous occurrence of an earthquake and a separately caused accident, ignores much more probable events. The NRC staff has told us that earthquakes, even those higher than the SSE, are as likely or more ,

likely than other accident initiators we do consider for emergency [

planning. Chairnen Palladino observed a few months after the Diablo Canyon decision that an earthquake lower than the SSE could be a major contributor i

to risk for a plant:

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Then there is also the probability that if you have even the SSE or some lesser one, that the equipment say not function as designed. Now, that one deserves some attention. I think that could be a major contributor.

That is one I think you have maybe a better chance of getting a handle on than the probability (of) exceeding the SSE. (" Joint Meeting of the Commissioners with Advisory Committee on Reactor Safeguards," November 2, 1984, Transcriptpp26-27.)

This is precisely the point I have b'een making throughout this process.

And, it is because of this very risk that the Commission requires Diablo Canyon to implement its emergency plan in the event of an earthquake much less than the SSE.

Page 6-7 The Commission Stated:

The analysis fails to acknowledge the following considerations in its discussion of the matter of generic treatment. First, the Commission's Diablo Canyon decision was not based on a plan to conduct a rulemaking.

See comment above, page 4. Second, the Connission's decision readily acknowledged that the Commission "should have acted sooner and initiated rulemaking." CLI-84-12, 20 NRC at 255. And third, the Chairman, as well  :

as Commissioner Asselstine, expressed interest in pursuing the issue of possible rulemaking on the effects of earthquakes on emergency planning.

In September, 1983 the Chairman met with the NRC staff and requested a technical analysis of the issue. The staff provided it in its January 13, 1984 memorandum which the Subcommittee has.

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Page 7-8 The Commission stated:

I The Subcommittee staff analysis relies on Commissioner Asselstine's i contention that the Commission implicitly found that earthquakes occur less  !

frequently than other natural phenomena which are considered in emergency planning. However, a reading of the Commission's decision clearly shows that the Commission made no such comparison of the relative frequency of I

natural phenomena. Rather, the Commission determined as an absolute i matter, based on the record on earthquake recurrence times, that the frequency of significant earthquakes at Diablo Canyon was too low to warrant the consideration of the effects of those earthquakes on emergency planning. The Commission's letter of February 25, 1985 to you which is not referenced in the Subcommittee's analysis, states that the issue of the consideration to be given to other, infrequently occurring natural phenomena was not before the Commission in the Diablo Canyon case.

Commissioner Asselstine's response: l The Commission states that it did not implicitly find that earthquakes occur less frequently than other natural phenomena considered in emergency j planning. If this is so, the Commission's decision is irrational. The f Commission must necessarily have found that earthquakes are less likely to disrupt emergency planning than other. natural phenomena. If it did not, how can the Commission justify continuing to require licensees to consider

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Other natural phenomena in emergency planning? Simply stating that other natural phenomena were not before the Comission in the Diablo Canyon case does not justify treating one natural phenomenon (earthquakes) differently from other natural phenomena having approximately equal probabilities of a occurrence. The Comission is clearly not limited in what it can do in a generic rulemaking by how the issue is raised in a particular adjudication. I If the Comission questioned whether other natural phenomena of equal probability as earthquakes should be considered, the Comission should have initiated a generic rulemaking which considered all those natural l

phenomena. It would be irrational to go to all the trouble of initiating a I generic rulemaking and only consider a part of the issue. The Comission seems to have at least partially recognized this inconsistency when at the 1

last minute it added consideration of tornados to the generic rulemaking on earthquakes.

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The Comission stated:

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In as much as the Comission decided in Diablo Canyon that  ;

consideratior need not be given to the earthquake emergency / planning issue, there is nothing " ironic" about a proposal to make that decision explicit j in its regulations through a proposed rule that would exclude consideration of earthquakes from emergency planning. The proposed rule put forward this proposition as a working hypothesis suited to eliciting the broadest range of public coment. A proposed rule does not prejudge the outcome of a l 1

rulemaking.  ;

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i The Commission stated:

Contrary to the Subcommittee staff's analysis, the approach adopted by i the Commission in response to SECY-84-70 was to address whether to allow ,

consideration of the earthquake / emergency planning issue under the particular circunstances of the Diablo Canyon case. CLI-84-4, 19 NRC 937 (1984). The Connission requested party comments and made its final decision in light of the responses. While the Commission's final decision -

may appear to the Subcommittee staff to be one of the options in SECY-84-70, the fact remains that the quoted OGC analysis' pertains to an option that the Commission did not adopt and was prepared prior to the receipt of responses to CLI-84-4.

Further, the conclusion of the analysis that the Commission's action f

"would appear to constitute a blatant attempt to escape legal and i regulatory requirements" presupposes that only the OGC could have reasonable views on the issues of the materiality of the effects of I earthquakes on emergency planning and the likely outcome of generic .

rulemaking. Finally, the use of the quoted exchange between OGC and I

Commissioner Bernthal implies incorrectly that there were no other reasons advanced for going forward with a generic rulemaking on the effects of i

earthquakes on emergency planning. A review of the transcripts and the record would show that the Commission and the staff were also concerned about large earthquakes in the Eastern United States.

Comissioner Asselstine's response:

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Once' again, the Comission engages in a rewriting of history to support its decision. The Comission's approach in response to SECY-84-70 had two parts: (1) whether to affirm the Comission decision in San Onofre that the earthquake issue is generic, and (2) whether if the issue is f generic, there are any special circumstances at Diablo Canyon which would warrant departing from the generic decision that earthquakes need not be considered for emergency planning at any plant. Both of these questions played a part in the Diablo Canyon decision. -

In SECY-84-70, the General Counsel and OPE told the Comission that there was no record or technical support for a decision to affim the San Onofre generic determination. Thus, proceeding by generic rulemaking would only result in a decision that the issue was site specific and, given the NRC staff position, was material to the Diablo Canyon site. OGC stated, therefore, that the issue was material to the licensing decision for Diablo Canyon and the parties were entitled to a hearing on the issue.

OGC recomended granting a hearing on the issue because proceeding by rulemaking would merely delay consideration of the issue at Diablo Canyon.

The Comission ignored this advice and chose to ask the parties the two questions I outlined above. After receiving coments from the parties on that order (CI.I-84-4), OGC and OPE met with the Comission and repeated the conclusion it had reached in SECY-84-70 that the issue was material to Diablo Canyon and that there was no basis for a generic exclusion of the

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consideration of earthquakes. The Comission again ignored OGC and OPE advice. The Comission: (1) affimed the San Onofre generic determination .

and began a generic rulemaking to. codify that decision and (2) found that there are no special circumstances at Diablo Canyon which would warrant i departing from that generic rule. Thus a finding that the issue is generic is an essential part of the Comission's Diablo Canyon decision.

• f Page 11-12 The Comission stated: '.

The Comission's February 25, 1985 letter did not distinguish between i using the TERA report to reach a Comission decision and using it in Court to defend that decision. The letter made no coment regarding use of the TERA report in Court litigation. (The litigation referred to in the Comission's February 25 letter was litigation before the Licensing Board.) ,

Rather, the Comission's February 25 response simply pointed out that because the TERA report was not in the evidentiary record, it could not be relied on as support for the Comission's decision. And, as the l

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Comission's decision shows, that report was not relied on. Therefore, it is incorrect to suggest that, in the final analysis, the TERA report played an important role in the Comission's decision. Moreover, the Comission's decision did not refer to any off-the-record material because none of that~

material was relied on by the Comission in reaching its decision. The i

Subcomittee staff does not appear to comprehend that the reasons for the Comission's Diablo Canyon decision are the reasons presented in CLI-84-12

11 and that the discussions and statements of individuals reflected in the transcripts do not constitute the Commission's decision or its rationale.

Commissioner Asselstine's response:

The plain far:t is that a review of the transcripts shows that the TERA report was extensively discussed. Yet, the Commission would have you believe that this off-the-record material'was expunged from its mind just as it was expunged from the final version of the Commission's decision.

The Commission supports this argument by drawing a distinction between its final decision and the discussions and statements of individuals leading up to that decision. While it is undoubtedly true that not every statement by an individual Commissioner gets translated into a Commission decision, it is disingenuous to suggest that nothing the Commissioners said at three lengthy Commission meetings had anything to do with the Commission's final decision. To the contrary, those discussions were the primary sources of instruction for the drafters of the Commission's decision.

Page 12 The Commission stated:

The quoted statement of Chairman Palladino is taken out of context and was explained by him at the July 10 hearing. See pages 39-48 of the July 10 transcript. Further, the quotes at the bottom of page 12 and the top of

< page 13 do not reflect that approaches based on information in the adjudicatory record were discussed.

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The Commission stated:

The Subcommittee staff suggests that contrary to the Commission's belief, the TERA report does not support the Commission's decision in view j of the report's estimate that an earthquake could double or triple evacuation times. However, this estimate does not undercut the

' Commission's decision. The Cominission had before it record evidence that fog could similarly increase evacuation times. _

Page 18 The Commission stated:

In stating that OGC argues that the Commission rested its " final decision" on assumptions about the comparison of earthquakes and other natural phenomena, the Subcommittee staff apparently is relying on quotations about drafts of Commission decisions or hypothetical discussions at Commission meetings as necessarily expressing OGC's view on the final decision as issued. However, the final decision rests on the rationale stated in the Commission's decision and does not depend upon a comparison ,

1 of earthquakes to other natural phenomena.

Commissioner Asselstine's response:

I have already explained why the Commission's decision implicitly makes such a comparison. See discussion at pp 7-8 above.

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The Comission stated:  !

The statement quoted from the Comission's February 25, 1985 letter is neither tautological (i.e., including a " needless repetition of the same idea in different words" -- The Random House College Dictionary (1973) nor ,

i does it prejudge the issue. The clear inference from the statement is that II no hearing was held in the Diablo Canyon case on the issue of the q complicating effects of earthquakes on emergency planning because that issue was found to be imaterial to plant licensing. Indeed, the )

Subcomittee staff analysis of this matter does not evidence an l understanding of the simple point that the Comission decided in CLI-84-12 that the earthquake / emergency planning issue was not material. The Subcomittee staff study appears to adopt the mistaken view that the Comission " removed" the earthquake / emergency planning issue from the Diablo proceeding because it was a generic issue. On the contrary, the Comission's decision not to consider the issue rested on a judgment that a contemporaneous occurrence of an earthqu'ake and radiologic release from the plant would be very low. i l

Further, the OGC coment referenced at the top of page 20 does not  !

pertain to the Comission's final decision in Diablo. See the above coments on pages 9-10.  !

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N Commissioner Asselstine's response.

Once again the Commission tries to argue that a generic determination was not a part of its Diablo Canyon decision. That is nonsense. See discussion at pp 10-11 above.

Page 21 The Commission stated:

The statements regarding delay are quoted out of context. Further, as i

he explained in the July 10 Subcommittee hearing, the Chairman stated a general observation regarding frustration over the length of time for hearings which does not, as suggested, support any inference regarding the need for a hearing in the Diablo Canyon proceeding.

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