ML20010C543

Notice of Objections to ASLB 810804 Order.Generally Objects to ASLB Erroneous Interpretation & Application of Commission Policy on Litigation of TMI-related Issues.Alternatively, Issues Should Be Certified to Nrc.W/Certificate of Svc

ML20010C543
Person / Time
Site:	Diablo Canyon
Issue date:	08/14/1981
From:	Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8108200176
Download: ML20010C543 (11)

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UNITED STATES OF AMERICA ..

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NUCLEAR ~ REGULATORY COMMISSION 9, .

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BEFORE-THE ATOMIC SAFETY AWD LICENSING BOARD

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In the Matter-of )

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PACIFIC GAS AND EL8CTRIC COMPANY ) Docket Nos. 50-275 O.L.

) 50-323 0.L.

(Diablo Canfon Nuclear Power )

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JOINT INTERVENORS' NOTICE OF OBJECTION * 'J TO THE ATOMIC SAFETY AND LICENSING BOARD ORDER OF AUGUST 4, 1981 .y Pursuant to-10 C.F.R. 52.752, the SAN LUIS OBISPO MOTHERS FOR PEACE, SCENIC SHORELINE PRESERVATION CONFERENCE, INC., ECOLOGY ACTION CLUB, SANDRA SILVER, GORDON SILVER, ELIZABETH APFELBERG, and JOHN J. FORSTER (" Joint Intervenors") hereby file objections to the Atomic Safety and Licensing Board's orcer of August 4, 1981 in the Diablo Canyon Nuclear Power Plant ("Diablo Canyon") full power licensing proceeding. Joint Intervenors object generally to the bcard's erroneous interpretation and application of the Commis-sion's policy on litigation of TMI-related issues, as stated in its'" Revised Statement of Policy: Further Commission Guidance for Power. Reactor Operating Licenses," CLI-80-42, 45 Fed. Reg. 85236 (Dec. 18, 1980), and'its April 1 Order (CLI-8 5-5 ) in this proceeding,  !

and, more specifically, to the board's denial of Joint Intervenors' contentions 2, 3, 4, 8, 9, 10, 11, 14 (in part), 15,16, and 17. pso3  ;

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i In the : alternative, Joint Intervenors request that the board direct certification of the issues raised herein to the Commis-sion for its immediate review.

For the reasons discussed at length in their March 24, 1981 Motion to Reopen, in their June 30, 1981 Statement of Clarified Contentions, and by their counsel at the July 1, 1981 prehearing conference held in this proceeding, Joint Intervenors submit that the board has thoroughly misconstrued the standards governing admissibility of contentions in the aftermath of the TMI accident. Each of the contentions rejected by the board arises out of the accident, is based upon significant new information recognized in numerous studies and reports issued since the acci-dent (and cited extensively in Joint Intervenors' 76-page motion),

and is intended to assure that such information is adequately con-sidered and applied at Diablo Canyon prior to full power operation.

Consistent;with the Commission's TMI-related guidance, Joint Intervenors explicitly related ecch of the contentions not only to the TMI accident but also to specific NUREG-0694 and NUREG-0737 requiremer.ts bearing on the same safety concerns. In addition, to assure the requisite specificity of each contention, Joint Inter-venors tied each contention to Diablo Canyon site-specific infor-mation, including, where relevant, the reactor design, NRC safety evaluation reports, and applicant submittals.

In its brief August 4, 1981 order, the licensing board accepted only one contention in its entirety (as well as part of another) and rejected the remainder without even acknowledging the vast majority of the information submitted and issues raised by t.,

Joint-Intervenors. Consistently, the board's rationale for denial of contentions bears no apparent connection to the Commission a prior guidance.- Several examples are illustrative.

With respect to the combined hydrogen contention, the board ignored the TMI accident entirely in concluding that Joint Intervenors (1) "have not provided the board with any new signifi-cant new factual information regarding hydrogen generation" and (2) "have not supplied information of any kind which could be interpreted as a credible loss of coolant accident scenario."

(August 4 Order, at 3.) Further, although the board is correct that "the matters addressed [by the contention] are not required by NUREG-0737," that is clearly not the proper test for admiss-ability of a TMI-r21ated contention. In its April 1, 1981 Order, at 3-5, the Comr.ission explained that a party may challenge the sufficiency of an item in the NUREG documents. However, the scope of the inquiry. . . is limited to the particular safety concerns that prompted the specific requirements in NUREG-0694 and 0737.

Wnat we had in mind was allowing a party to focus on the same safety concern that formed the oasis for the NUREG requirement and liti-gate the issue of whether the NUREG " require-ment" is a sufficient response to that concern.

(Emphasis added.)

Because the safety concern of hydrogen control underlies both the contention itself and the NUREG items cited by Joint Intervenors to the licensing board -- NUREG-0694, II.B.4, Analysis of Hydrogen Control, and NURFG-0737, II.E.4.1, Dedicated Hydrogen Penetrations

-- the combined contention was properly admissib) . Finally, it is notable that the contention was based on a similar hydrogen-

' contention drafted'by1the licensing board for' litigation in the TMI-lIRestart Proceeding and admitted-subsequentlyLalso by th licensing board in the Shoreham licensing proceeding. See In ;g Matter' of ' Long Island LLighting Company' (Shoreham -Nuclear Power l Station), No. 50-322-OL, Order: Admitting Shoreham Opponents'

Coalition .(SOC) Contention-12, 3d Subpart (July 2,1980) .

.Other_cententions -- regarding valve performance testing and reactor vessel level instrumentation -- are, in fact, based on specific NUREG-0737 requirements. - Nonetheless, both were rejectec'

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'by the licensing board. With respect to valves, the board con-cluded that Joint Intervenors had failed to " bring forward new information" on the issue, notwithstanding the FMI-2 accident, the-existence of a specific NUREG-0737 item on valve performance-testing, and a recent NRC staff board notification that.the-NUREG-0737 item II.D.1 testing deadlines will not be met. Such a conclusion cannot be reconciled with the Commission's explicit ~

~ directive that the requirement for significant new information-

"could be satisfied by reference to new information contained in NUREG-073~i." (April 1 Order, at 6.) With respect to reactut vessel level indication, the board suggested that Joint Inter-venors have placed too great an emphasis on the RVLIS, which is critical.to PGandE's response to NUREG-0737 item II.F.2. u0n the contrary, PGandE ltself has proposed the system to comply with the NUREG item; Joint Intervenors' contention seeks only to determine whether'the RVLIS will satisfy that requirement. As- such , it is obviously a properly litigable issue under the Commission's.TMI guidance. -

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The board rejected in part contention'14, regarding environmental qualification. Its stated reason for doing so was' its expectation that Diablo Canyon "will not be pbrmitted to operate until the safety-related electrical equipment has been qualified in accordance with the mandates of the'various general design criteria, as required tar regulation." (August 4 Order, at.8.)

That is a'n obviously improper basis for denial of-the contention under any standard because compliance with the Commission's regula- _

tions is precisely the issue which Joint Intervenors seek to litigate. The basis for the contention, as clarified on June 30, is PGandE's June 10 submittal to the NRC regarding environmental qualification at Diablo Canyon. Upon review of that submittal, Joint Intervonors found signific'nt deficiencies in PGandE's quali-fication program, each of which has been meticulously enumerated-in the contention. Notwithstanding the board's expectation that Diablo Canyon will not be permitted to operate until the applicable regulations are set, the contention is clearly relevant, specific, and timely and should have been admitted.

Combined contentions 15 and 16, regarding systems inter-action, allege noncompliance with GDC 2, 3, 4, 22, and 24 of Appendix A to 10 C.F.R. Part 50. As such, no connection with NUREG-0737 or NUREG-0694 need be demonstrated under the standards enunciated by the Commission in its April 1, 1981 Order, at 3-4.

The' contention is supported both in the March 24, 1981 Motion to Reopen and the June 30, 1981 Statement of Clarified Contentions far significant new information arising out of the TMI accident, by numerous citations to .of ficial reports, studies, and a recent -

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. staff board notification on the issue, and by~ discussion of the serious-inadequacies'of-the limited Diablo Canyon study conducted by PGandE. The contention is based on the recognized fact that the-TMI accident demonstrated the need for a thorough study of systems interaction, particularly_in an area of high seismic-activity, to assure compliance with the regulations cited in the contention. Absent such assurance, licensing and operation of Diablo Canyon will violate the Atomic Energy Act. 42 U.S.C.

S S 2233 (d) , 2236 (a) , and 2237; 10 C.F.R. 550.57 (a) and (c).

The licensing board also concluded that the Staff need not address decay heat removal, because it is a "new" unresolved sa f e t:. issue. (August 4 Order, at 4.) This ruling is in direct violation of the River Bend and North Anna decisions cited in con-tention 4. Simply because an issue is "new" does not free the Staff from its obligation to address all unresolved generic safety

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issues in the manner prescribed by those decisions. Joint Inter-venors discussed in detail the significance of the issue as demon-strated at TMI. This contention -- which seeks only to have the Staff fulfill its legal obligations prior to licensing of the reactor -- should have been accepted by the' board.

In sum, Joint Intervenors object to the licensing board's August 4, 1981 order in the respects discussed above and request that the contentions previously denied be admitted herein.

In the alternative, Joint Intervenors request that the board certify the issues raised to the Commission in order to permit the Commission to review immediately the propriety of the board's

order. Joint Intervenors believe that the board has distorted the Commission's TMI guidance beyond all recognition and, therefore, that its intervention is necessary immediately to set.this proceeding back on track. Directed certification will avoid needless delay and expenditure of resources in this and other proceedings should the Commission ultimately take issue with the board's application of the TMI-re'_ated guidance here. That the provision in 10 C.F.R. 52.718(i) was intended for just such a circumstance has been recognized repeatedly in NRC decisions. In the Matter of Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976); In the Matter of Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975); In the Matter of Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-271,1 NRC 478, 483 (1975). Certification to the Commission is appropriate and necessary in this case and should be directed by the Board.

DATED: August 14, 1981 Respectfully submitted, JOHN R. PHILLIPS, ESQ.

JOEL R. REYNOLDS, ESQ.

Center for Law in the Public Interest 10203 Santa Monica Boulevard Fifth Floor .

Los Angeles, California 90067 (213) 879-5588 DAVID S. FLEISCHAKER, ESQ.

1735 Eye Street, N.W.

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

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. JOELg/.)REYNOLDS-Attorneys for Intervenors .

SAN LUIS-OBISPO MOTHERS FOR PEACE

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SCENIC SHORELINE PRESERVATION' CONFERENCE, INC.

ECOLOGY ACTION CLUB' SANDRA SILVER GORDON SILVER

_ ELIZABETH APFELBERG JOHN J. FORSTER-A b

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&.m A n p" UNITED STATES OF AMERICA  ?\ -

\ ,/ h NUCLEAR REGULATORY CCMMISSION 1.-

BEFORE THE ATOMIC SAFETY'AND LICENSING BOARD

)

In the Matter of )

)

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

) 50-323 O.L.

(Diablo Canyon Nuclear Power )

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

) Proceeding)

)

CERTIFICATE OF SERVICE I hereby certify that on this 14th day of August, 1981, I have served copies of the-foregoing JOINT INTERVENORS' NOTICE OF OBJECTIONS TO THE ATOMIC SAFETY AND LICOSING BOARD'S ORDER OF AUGUST 4, 1981, 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. Nuclear Regulatory Commission Commission 1717 H. Street, N.W. 1717 H S t r ee t , 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

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L Richard-S. Salzman, William Olmstead, Esq.

' Chairman. . Marc 1R. ' Staenberg, Esq.

-AtomicESafety.&LLicensing.

Edward G. .Ketchen,'Esq.-

Appeal, Board- Office of the Executive' Legal:

LU.S.NuclearoRegulatory Director - BETH 042; Commission- U.S . _ Nuclear ~ Regulatory -

_ Washington, D.C.:20555 Commission Washingron, D.C. 20555

-Dr. W.-Reed Johnson Atomic Safety & Licensing Nancy Culver AppealiBoard 192 Luneta

.U.S. Nuclear Regulatory: San Luis'Obispo,fCA'93401

' Commission-

-Washington, D.C. 20555 Mr. 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 -Suite 202 Commissi'on Phoenix, Arizona 85012 Washington, D.C. 20555 Mr. Yale I. Jones, Esq.

4 Dr. Jerry R. Kline- 100 Van Ness-Avenue 1 Atomic Safety & Licensing 19th Floor Board San Francisco, CA 94102 U.S. Nuclear Regulatory l Commission Andrew Baldwin, Esq.

Washington, D.C. 20555 Friends of the-Earth i

124 Spear Street Docket & Service Branch San Francisco CA 94105.

Office of the Secretary U.S.-Nuclear' Regulatory Harry M.-Willis, Esq.

-Commission Seymour and Willis Washington, D.C. 20555 601 Cr.lifornia Street-Suito 2100 San Francisco, CA 94108

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Mrs. Raye Fleming

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Janice E. Kerr,TEsq. 1920 Mattie Road-Lawrence Q.'Garcia,,Esq. Shell: Beach,:CA'93449, cJ.LCalvin.Simpson, Esq.

California Public Utilities hmB Technical Associates

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52 b tate Building

-350 McAllister-Street

[ieK San Jose, CA 95125 San Francisco, CA 94102-Malcolm H. Furbush, Esq. heleg L1 Tr bune Vice President and: General: -P. O. Box 112 Counsel San Luis Obispo, CA :93402.

Philip A. Crane, Esq.

. Pacific Gas & Electric Company Byron Georgiou, Esq.

P. O.~ Box 7442 ~ Legal Affairs Secretary to San. Francisco, CA 94106. the Governor- -

State Capitol Building

-Arthur C. Gehr,'Esq. Sacramento, CA 95814 Snell &'Wilmer 3100 Valley Center- Lawrence Coe Lanpher,-Esq.

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

Washington, D.C. 20036 SC; UTOEL R. REYNOLDS',gSQ.

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