ML20054G571
| ML20054G571 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 06/16/1982 |
| From: | Chandler L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20054G572 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8206220074 | |
| Download: ML20054G571 (12) | |
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fhfR UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
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SOUTHERN CALIFORNIA EDIS0N ) Docket Nos. 50-361 OL COMPANY, ET AL. ) 50-362 OL (San Onofre Nuclear Generating Station, Units 2 and 3) )
NRC STAFF'S RESPONSE IN OPPOSITION TO INTERVENORS GUARD AND CARSTENS ET AL.'S APPLICATION FOR STAY OF FULL POWER LICENSE Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel Dated: June 16, 1982 8206220074 820616 DR ADOCK 05000 5%
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.V UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
SOUTHERN CALIFORNIA EDIS0N ) Docket Nos. 50-361 OL COMPANY, ET AL. ) 50-362 OL
)
(San Onofre Nuclear Generating )
Station, Units 2 and 3) )
NRC STAFF'S RF.SPONSE IN OPPOSITION TO INTERVEN0RS GUARD AND CARSTENS ET AL.'S APPLICATION FOR STAY OF FULL POWER LICENSE Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel l
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1 Dated: June 16, 1982
n 06/16/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
SOUTHERN CALIFORNIA EDIS0N ) Docket Nos. 50-361 OL COMPANY, ET AL. ) 50-362 OL
)
(San Onofre Nuclear Generating )
Station, Units 2 and 3) )
NRC STAFF'S RESPONSE IN OPPOSITION TO INTERVEN0RS GUARD AND CARSTENS ET AL.'S APPLICATION FOR STAY OF FULL POWER LICENSE I. INTRODUCTION On June 1, 1982, Intervenors GUARD and Carstens, et al., (Intervenors) filed an " Application for Stay of Full Power License" (Application) authorized by the Atomic Safety and Licensing Board's (Licensing Board) Initial Decision, issued on May 14, 1982.
For reasons discussed below, the NRC Staff (Staff) opposes the Application and urges that it be denied.
II. BACKGROUND On May 14, 1982, the Licensing Board issued its Initial Decision (ID) resolving the emergency preparedness contentions in controversy in this proceeding, finding in general: (1) that the state of emergency preparedness with respect to the captioned facility provides reasonable assurance that adequate protective measures can and will be taken in the event of a radio-logical emergency (10 C.F.R. @ 50.47(a)(1); ID at 212 and 217); (2) that to the extent in controversy, and subject to a number of conditions, the onsite and offsite plans meet the applicable planning standards of the Commission's regulations (See, 10 C.F.R. 9 50.47(b)), or that such deficiencies as were found to exist are not significant for San Onofre (10 C.F.R. 6 50.47(c)(i); ID
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at 212 e_t_
t seq.); and, (3) that the Emergency Planning Zone (EPZ) was properly designated (10 C.F.R. Q 50.47(c)(2), subject to expansion to include Dana Point and all of San Juan Capistrano (ID at 216).
III. DISCUSSION Briefly stated, the requirements for issuance of a stay as set out in 10 C.F.R. $ 2.788(e) are:
- 1. whether the moving party has made a strong showing that it is likely to prevail on the merits;
- 2. whether the party will be irreparably injured unless a stay is granted;
- 3. whether the granting of a stay would harm other parties; and
- 4. where the public interest lies.
The burden of persuasion on these factors is on the moving party.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB 493, 8 NRC 253, 270 (1978). No one of the factors is dispositive; the granting or denying of a stay request turns on a balancing of all the factors. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10, 14 (1976). The Comission has concluded, however, that the most important factor is whether the party requesting the stay has shown that it will be irreparably injured unless a stay is granted. Westinghouse Electric Corporation (Exports to the Phillipines), CLI-80-14, 11 NRC 631, 662 (1980); Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-505, 8 NRC 527, 530 (1978). Failure to satisfy this factor requires an overwhelming showing on the other factors. See, Public Service Company of New Hampshire, ALAB-338, supra.
A balancing of the four factors does not favor granting Intervenors' requested stay. The Staff will address in turn each of the four factors in 10 C.F.R. $ 2.788(e).
A. Likelihood of Prevailing on the Merits
- 1. Intervenors first appear to contend that the post-license conditions imposed reflect a detennination that "they have prevailed
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on the merits . . . and that they will be likely to overturn the delayed implementation of those conditions." ( Application at 4)1/
- a. Determination of the EPZ. Intervenors suggest that it was improper for the Licensing Board on one hand to find that siren cover-age (prompt notification) was required for an area beyond the EPZ initially determined and on the other to allow operating licenses authorizing full power to presently issue conditioned upon the subsequent installation of siren cover-age in two areas--Dana Point and the entirety of San Juan Capistrano (only part of which was originally covered)2_f--within six months of commencement of full power operation (Comments at 3-5). While Intervenors broadly dispute the adequacy of planning within the EPZ as expanded, the only deficiency identified is the lack of an installed means for prompt notification such as a siren system. (See, ID at 18 and 5 A.12 at 89; Coments at 3-4). Intervenors mis-takenly assert, however, that the basis for the Licensing Board's grant of a six month period in which to provide a prompt notification system within the expanded areas is the low probability of an accident in this period of time.
(Coments at 4). Rather, the Board's basis for this condition is that "ade-quate alternate means of public notification of an emergency exist..."
(Order (Making Clarifying Change in Initial Decision), May 25,1k'?). This conclusion finds ample support in the record (See, e.g., Applicants' Finding
-1/ The Application is wholly lacking in a concise summary of the Licensing Board's actions complained of or specific reference to the record in this proceeding. See, 10 C.F.R. @ 2.788(b)(1) and (4). Rather, in an apparent effort to circumvent the explicit ten-page limitation on an application for stay,10 C.F.R. @ 2.788(b), Intervenors seek to incorporate "Intervenors Comments With Respect To The Immediate Effectiveness Of Licensing Board's Initial Decision Dated May 14,1982" (Coments) filed before the Comission pursuant to 10 C.F.R. 5 2.764(f), on May 21, 1982 (Application at 3).
Notwithstanding this inadequacy in the Application, the Staff will address the several matters raised in Intervenors' Comments.
2/ The original EPZ was about 10 miles in radius thus excluding all of Dana Point and the portion of San Juan Capistrano north of San Juan Creek.
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of Fact 1 97). In view of the Licensing Board's finding regarding the availa-bility of alternate means of prompt notification in the interim, its condition allowing a period of six months for installation of sirens in these two areas is consistent with the Commission's regulations which permit issuance of a license even if deficiencies are found to exist provided that the applicant is able to demonstrate that the deficiencies are not significant, that adequate interim compensating measures have been or will be taken, or that there are other compelling reasons. See, 10 C.F.R. Q 50.47(c)(1).
- b. Offsite medical services for the general public.
Intervenors contend that it was improper for the Licensing Board to authorize issuance of full-power operating licenses subject to a condition subsequent regarding planning for off-site medical services for the general public.
Again, it is not the substance of the condition which is complained of but solely the timeframe for compliance. (Coments at 5-6). Intervenors' arguments ignore the whole of the bases articulated by the Licensing Board in imposing this condition. First, the Licensing Board determined that " operations for a I
brief period, no longer than six months, will not significantly endanger the pub-lic health and safety." Second, the Applicants' onsite plan could provide some j
- level of medical service to the off-site public. Third, other available, offsite
- facilities in the area likely could be called upon on an _ad hoc basis. Finally, the Licensing Board expressed confidence that Applicants and local officials will make prompt efforts to develop adequate off-site arrangements to be in place as soon as possible (ID at 44-46). In light of the Licensing Board's determination i
that the deficiencies found are not significant for this facility, its condition comports with the Commission's regulations. See, 10 C.F.R. 6 50.47(c)(1).
t l c. Offsite monitoring and assessment capability.
Intervenors would have us believe that the Licensing Board has authorized the wholesale substitution of the Applicants' onsite monitoring and radiological l
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release assessment capabilities for those of the offsite jurisdictions which are deficient. (Coments at 6-7). This simply is not what the Licensing Board has done. The Licensing Board first found that the principal offsite response organizations have significant capabilities (ID 1 IV. D.3.16-19). It further observed that the prinicpal deficiencies in this are. (as determined by FEMA) related to equipment availability, Standard Operating Procedures (S0P's) and staffing and associated training (Id. 11 20-21). It also found that progress in resolving these deficiencies is being made. (I_d.
_d 1 24). Finally, the Licensing Board found that "the Applicants have sufficient trained staff resources and equipment, not only to meet their assessment and monitoring responsibilities onsite, but also . . . [when supplemented with the offsite resources which do exist] to carry out all necessary offsite dose assessment, radiological monitoring and re-lated protective functions in the plume EPZ." (Id. % 26). Clearly, therefore, it has been demonstrated that these compensating, supplemental capabilities render the deficiencies initially found (which are being remedied) insignificant for San Onofre. (See, 10 C.F.R. 9 50.47(c)(1) and ID at 49-50 and 214, n.66). Fu rther--
more, contrary to Intervenors' assertion that the record does not support the foregoing findings (Application at 3), the Licensing Board refers to the very substantial record developed regarding the total monitoring and assessment capa-bilities which could be brought to bear in an emergency (ID at 141-143; Applicants' Findings of Fact 11 211-240; Staff's Findings of Fact, 11 259-269).
- d. Planning for the ingestion pathway. Regarding this matter, the Licensing Board, appropriately in light of Intervenors' failure to propose any findings on this subject, determined that it was no longer contested and left resolution of the issue to the Staff. (ID at 211; see, 10 C.F.R. %% 2.754(b) and 2.760a). The Licensing Board did not find planning inadequate (although it did correctly observe that the state of preparedness did not, as of the close of the record, fully satisfy FEMA in this regard)
and, in fact, made no dispositive findings whatsoever. (IDat63-67,211;also, Comments at 7-8). Intervenors' self-serving statement suggesting an inadvertent omission of findings on this subject, devoid as it is of any particularization in terms of supporting record references, should not be allowed to carry the day.
In summary, then, Intervenors have failed to show that the Licensing Board erred in imposing its conditions permitting resolution of certain matters subsequent to issuance of full-power operating licenses or in refusing to make findings regarding the ingestion EPZ and that they are likely to prevail on the merits of their appeal.
?. Irtcrvern m next argue that the Licensing Board applied an inappropriate standard of adequacy in judging satisfaction of the planning standards in controversy (Application at 2, 5-6). Preliminarily, they imply that the Licensing Board improperly excluded testimony which they wished to -
offer regarding potential radiation health effects and doses (Application at5). This, testimony, they would have us believe, was relevant to Contention No. I which reads as follows:
Whether the state of emergency preparedness for SONGS 2 and 3 provides reasonable assurance that the offsite transient and permanent population within the plume exposure Emergency Planning Zone, 10 C.F.R. Q 50.47(c)(2), for SONGS 2 and 3 can be evacuated or otherwise adequately protected in the event of a radiological emergency with offsite consequences occurring at SONGS 2 and 3, as required by 10 C.F.R. Q 50.47(a)(1),
Q 50.47(b)(10), and Part 50, Appendix E.IV.
Although Intervenors do not give us the benefit of a specific identi-l fication of the testimony of concern, we presume they have reference to
{ the testimony of Dr. S. Plotkin, portions of which were stricken by the Licensing Board. The reason that portions of the foregoing testimony were excluded is straightforward - Dr. Plotkin's testimony dealing with health effects was found to be beyond the admitted contention (see, Tr. 9446 and 9532-9537). As such, this testimony was properly excluded from consideration
( as being irrelevant. See, 10 C.F.R. 5 2.743(c).
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> i Beyond this single matter, Intervenors, without reference to the record, suggest that the Licensing Board's standard of adequacy was nevertheless improper.E Intervenors, however, acknowledge that "[t]he technology exists, the experts are there to determine whether or not these methods are going to be adequate." (Application at 6). In fact, the technology available was brought to bear and the experts did determine that the " methods are going to be adequate".
Approximately 4000 pages of transcript and many hundreds of pages of exhibits document this and are duly reflected in the Initial Decision.
- 3. Intervenors next contend they were deprived of due process rights and of a fair hearing. This, they suggest, derives from the disallowance of an opportunity to have discovery and participate in meetings between the Applicants and FEMA regarding measures to correct the deficiencies identified by FEMA and be-cause the " hearings were conducted on a rush basis (6 days a week)." (Application f at 7-8) . Again, Intervenors have provided no specification of their complaint.
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- Intervenors' statement that they "were not allowed to discover" with respect to resolution of the deficiencies, (M.), is patently incorrect. As the transcript of the June 18, 1981 prehearing conference makes clear, the only further discovery Intervenors apparently contemplated (subsequent to the stipulated closing of formal discovery) was in the form of depositions of FEMA l
personnel (see Tr. 644; generally, Tr. 643-649). Contrary to disallowing discovery, Chairman Kelley urged that "if you want a deposition, start it now
... (Tr.647). Intervenors simply failed to avail themselves of this 3/ The " declaration" of Mr. J. Stowe (and attachments) appended to the Appli-cation do not of themselves demonstrate inadequacy as Intervenors state (Application at 6). As reflected in the attached affidavit of David B.
Matthews, the scenario for the April 15, 1982 exercise referred to by Mr. Stowe provided that no siren or public address alert to be given along the beach or in the park areas. Thus one cannot determine what effect the use of the normal procedures would have on the time required to accomplish notification. Furthermore, as stated in the FEMA Region IX Evaluation Findings attached to Mr. Matthews affidavit, it was found that "Overall . . . all jurisdictions reflected an adequate or better capability to respond to an offsite emergency. . . " and with respect to State Parks and beaches, except for a concern related to communications "All operations were satisfactory . . ."
(EvaluationFindingsatii,seealso,Il-1).
a
. opportunity and sought no further discovery,4/ and, consequently,- they should not be heard to complain at this time.
Secondly, Intervenors assert that the hearing was held prior to resolution of the deficiencies (Application at 8). In. fact, Applicants' proposed remedies were the subject of consideration in the hearing being reflected in Applicants' Exhibit No. 144. Intervenors were afforded every opportunity to pursue this matter through cross-examination at the hearing.
Thirdly, Intervenors contend that they were " precluded from participation in discussions with these parties [ presumably Applicants and FEMA; see, Application at 7] in violation of the rule against ex parte communication with decision makers." (Application at 8). This argument is without merit. The-relevant " decision makers" for purposes of this proceeding are the Commission (and its adjudicatory tribunals); there is no suggestion, nor could there be, that they were involved in such discussions and, consequently, there has been no violation of the rule against ex parte communications. See, 10 C.F.R. 5 2.780.
Finally, Intervenors give no basis for their allegation.that because the hearing was conducted on a 6-day per week basis they were denied some due process right ( Application at 8). Accordingly, this argument should be summarily rejected.
Based on the foregoing, it is the Staff's position that, with respect to matters specifically pertaining to the Initial Decision on emergency prepared-ness, Intervenors have failed to make a showing that they are likely to prevail on the merits.
In a closing argument, Intervenors further attempt to resurrect the application for stay filed in regard to the Partial Initial Decision on geology /seismiology and low-power emergency preparedness. (Application at 8-9). The bases for that application were wholly grounded on geology /seis-
-4/ We would note that an informal discovery session was held on June 15, 1981 '
.i among the Intervenors, Applicants, Staff and FEMA, fundamentally for the purpose of probing FEMA personnel regarding their plan and exercise critiques and the interim findings of June 3,1981 (Intervenors Exhibit Nos. 13,14,15).
1
l mology-related matters which are indistinguishable with respect to low-power / full-power concerns. The Staff believes therefore, that the Appeal Board's determi-nation denying a stay, set forth ir ALAB-673, NRC , (April 26, 1982) is unaffected by the fact that this is now the full-power phase of the proceeding, l and is thus dispositive.5_/
j B. Irreparable Injury To Intervenors This factor, the most important of the four factors required for a stay, see, Westinghouse Electric Corporation, CLI-80-14, supra, is but only briefly touched on by Intervenors who simply state: "The demonstrated inadequacy of the emergency plans shows that if a potential accident were to occur during the initial testing period at full power, there would be undue risk to the public."
(Application at 4). While arguably this statement may have some oearing on the
- fourth factor - where the public interest lies - it is far wide of the mark insofar as addressing the standard for irreparable harm enunciated by this Appeal Board in ALAB-673, namely,
'will the continued operation of the plant over the period required to complete the additional proceedings be consistent with the requirement that there be reasonable assurance that the public health and safety not be endangered. See 10 C.F.R. 2.104(c)(3); 10 C.F.R. @ 50.57(a)(3). If not, the facility of j
course cannot be allowed to continue to operate at this time.'
(Slip op. at 18, quoting from Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 46 (1978).
C. Harm to The Other Parties
! Intervenors contend that any harm which Applicants might suffer is
! attibutable to the " nuclear business and does not result from the stay" and l that only little harm will result because further testing is required which can be done at low-power while the Appeal Board completes its full review on the merits. (Application at 4 and 9). Intervenors are incorrect in assuming that substantial testing remains to be done at low-power (up to 5% of rated power).
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-5/ We would note that Intervenors Carstens et al. have renewed this application for stay before the Comissioii.-
According to information available to the Staff, the Applicants will be ready to go above 5% of rated power toward the middle of July. A stay of the Initial Decision might therefore delay that by a significant length of time with a commensurate delay in commencement of commercial operation and attendant replacement power costs and carrying charges to the Applicants (See, ALAB-673, slip op. at 6, n. 4). Such costs should not be imposed absent some compelling health and safety concern which Intervenors have failed to establish.
D. Where The Public Interest lies Intervenors' argument respecting this final factor is equally untenable, being footed wholly on their ipse dixit proposition that these matters must be resolved prior to plant operation at full power to assure the public trust and confidence in the nuclear industry (Application at 4 and 9).
As stated by the Appeal Board, "[a]bsent a serious safety concern, the public interest. . ." favors denial of a stay. ALAB-673, slip op. at 5.
Intervenors have failed to establish a serious safety concern and, accordingly, the public interest favors not disturbing the decision below. See, Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2),
ALAB-404, 5 NRC 1185, 1188-1189 (1977).
IV. CONCLUSION Based on the foregoing, the Staff believes that Intervenors have failed to satisfy the requirements for issuance of a stay under 10 C.F.R. G 2.788 ard, l accordingly, the Application should be denied.
Respectfully submitted, 1
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I Lawrence J. Chandler Deputy Assistant Chief Hearing Counsel Dated in Bethesda, Maryland j this 16th day of June,1982 l
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