ML20024A117
| ML20024A117 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/08/1983 |
| From: | Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-728, ISSUANCES-OL, NUDOCS 8306150435 | |
| Download: ML20024A117 (15) | |
Text
e UNITED STATES OF AMERICA
@2E[ED NUCLEAR REGUIA70RY CXNMISSION BEFORE THE COhMISSION UN:34
)
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) )
. )
)
- s,
) JOINT INTERVENORS' PETITION FOR PEVIEW OF AIAB-728 Pursuant to 10 C.F.R. S 2.786, the SAN LUIS CBISPO M71EERS FOR PEACE, SCENIC SHORELINE PRESER/ATION CDNFERE2KE, INC. , ECDIDGY ACTION CLUB, SANDRA SILVER, GORDCN SIINER, ELIZABEIH APFFTRERG, and JOIN J. FORSTER (" Joint Inter-venors") hereby petition the Ccamission to review ALAB-728, issued on May 18, 1983.M In that decision, the Atmic Safety and Licensing Appeal Board (" Appeal Board") affirmed (1) the authorization of fuel loading and low power testing at
, Diablo Canyon Nuclear Pcuer Plant ("Diablo Canyon") and (2) the denial of TMI-related contentions submitted by the Joint Intervenors in opposition to l Pacific Gas and Electric Ccnipany's ("PGandEk) full power licensing. The Joint Intervenors request the Ccmmission to (1) grant review of the issues identified in this petition; (2) establish a schedule for briefing of the issues presented; and (3) reverse the decision of. the Appeal Board with respect to those issues.
m i $Ncq $$ I. Sumary of AIAB-728
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og s In ALAB-728, the Appeal Board affirmed two decisions of the Atcaic Safety yt.En 0
., c and Licensing Board (" Licensing Board"): sirst, its July 17, 1981 Partial
- ns:
. ca N$i Initial Decision authorizing issuance.of a slow power license (IBP-81-21,14 NRC 1 -4 .,
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- ' . M, .ALAB-728 was served on thie'partiec[Ey mail on May 19, 1983.
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107 (1981)) and, sewnd, its August 4,1981 Memrandum and Order rejecting certain TMI-related contentions subnitted by the Joint Intervenors in opposition to PGandE's application for a full power license (LBP-81-27,14 NBC 325 (1981)).
The principal issues raised on appeal concerned (1) the propriety of the denial of TMI-related contentions filed in the low and full power proceedings, (2) the failure of the NRC to require an environmental impact statement or an environ-mental assessment for Diablo Canyon which considers (a) the impacts of a Class Nine accident at the facility and (b) the impacts of low power licensing and operation, and (3) the adequacy of emergency preparedness at Diablo Canyon.
II. All Matters of Fact and Law Discussed Here Were Previously Raised All matters of fact and law raised in this Petition were previously raised before the Appeal Board either on the record or in documents filed with the Board, includiilg principally Joint Intervenors' Exceptions to the Licensing Board's July 17, 1981 Partial Initial Decision (August 3,1981); Joint Inter-l Venors' Brief in Support of Exceptions (September 2,1981); Joint Intervenors' Request for Directed Certification (October 8,1981); Joint Intervenors' Brief I
in Response to September 2 Order (September 23, 1982); and Joint Intervenors' l Reply to Briefs Re Mootness (September 30, 1982).
III. Ccanission Review Should Be Exercised l
Ccmnission review is appropriate and necessary in this case in order to remedy the manifest error of the Appeal Board in its disposition of a number of significant legal and policy questions of first impression in the context of a fully mntested licensing proceeding after the Three Mile Island ("1MI") acci-l dent. These questions arise out of the Appeal Board's application of the
9 Comnission's guidance for the litigation of 'IMI-related matters,Y the various NUREGs outlining supplemental 'IMI-related licensing requirements,M the 4
Comission's Statement of Interim Policy regarding Class Nine accident analysis under the National Environmental Policy Act ("NEPA"),M and the Comnission's revised emergency planning regulations. These issues concern matters of inportant public policy which may sipificantly affect the public health and safety and the environment. As such, they fall clearly within the Camission's own regulatory criteria for the granting of a petition for review. 10 C.F.R.
S 2.786.
l In AIAB-728, the Appeal Board rejected each of the Joint Intervenors' con-tentions on appeal, in the context both of the full and low power proceedings.
In so doing, it has not only ignored the unique circumstances of the Diablo i Canyon proceeding, but has rendered virtually meaningless the reforms instituted by the Cannission in the aftermath of the 'IMI accident. We subnit that the T Appeal Board's decision was erroneous and have outlined in the following section
. those issues which merit the Comnission's review.
IV. The Appeal Board's Decision is Erroneous A. _L__ow Power Contentions Following PGandE's application for a low power license, the Joint
! M Statement of Policy: Further Ccenission Guidance for Power Reactor Operating License, 45 Fed. Reg. 41738 (June 16,1980) (" Statement of Policy");
Revised Statement of Policy: Further Cawnission Guidance for Power Reactor
. Operating License, CLI-80-42, 45 Fed. Reg. 85236 (Decuuber 18, 1980) (" Revised l Statement of Policy"); In the Matter of Pacific Gas and Electric Co. (Diablo j Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5,13 NRC 361 (1981) (" April 1 Order").
3/ NUREG-0660, "'IMI Action Plan"; NUREG-0694 "'IMI-Related Requirements for New Operating Licenses"; NUREG-0737, " Clarification of 'IMI Action Plan Requirements."
M Statement of Interim Policy, " Nuclear Plant Accident Considerations Under the National Environmental Policy ACt of 1969," 45 Fed. Reg. 40,101 (June 13, 1980) (" Statement of Interim Policy") .
1
o Intervenors timely filed a number of 'IMI-related safety contentions in opposi-tion to the application. In disregard of the Ca mission's guidance permitting litigation of such issues, the Licensing Board rejected the majority of those contentions.M The Appeal Board did not even bother discussing the lower board's erroneous reasoning, ruling instead that any error was harmless because neither the Joint Intervenors nor the Governor had even addressed the standards for reopening the record and late-filing of contentions. ALAB-728, at 36-39.
The Appeal Board's assumption that the standards were never addressed is simply contrary to fact. Although the Joint Intervenors do not concede that such standards were applicable to the rejected contentions, the Board has ignored the fact that the Joint Intervenors explicitly addressed the standards repeatedly in various pleadings filed with the Licensing Board in the low power proceeding, including, for example, Joint Intervenors' Notice of Objections to February 13, 1981 Order of the Licensing Board (February 18, 1981); Joint Inter-venors Response to NBC Staff's February 23, 1981 Request for Directed Certifica-l tion and Pacific Gas and Electric Cmpany's February 26, 1981 Request for Directed Certification (March 26, 1981); and Joint Intervenors' Response in Opposition to NRC Staff's and Pacific Gas and Electric Cmpany's Motion for Reconsideration. In addition, at the prehearing conference held in January 1981, counsel for the Joint Intervenors and the Governor discussed at length the safety significance of each of the contentions, as well as the reasons why such
'IMI-related contentions could not have been raised prior to the occurrence of the accident. See Prehearing Conference Transcript, passim (January 28-29,
! 1981).
The Appeal Board's rejection of the Joint Intervenors' significant safety l
contentions was premised solely upon its mistaken assumption that the reopening M LBP-81-5,13 NRC 226 (1981) (" Preliminary Conference Order").
and late-filing standards were not addressed. Its decision must, therefore, be reversed by the Camission.
B. Full Power Contentionsb The Appeal Board also affirmed the Licensing Board's August 4,1981 rejection of all but one of the Joint Intervenors' full power M-related con-tentions. In so doing, it once again disregarded the lower board's obviously fallacious reasoning and substituted its own. However, in reaching the ,
identical conclusion, the Appeal Board adopted a rationale which distorts the Cmmission's guidance for litigation of 'IMI-related issues and nullifies the explicitly established right of all parties to challenge the sufficiency of additional 'IMI-related licensing requirements in individual licensing proceedings.
Although the Ca mission had initially permitted limited parties to chal-lenge only the " necessity for" its 'IMI-related licensing requirements,Y that
- artificial and illegal limitation was eliminated in December 1980 when the Cm mission stated that such parties could also challenge the " sufficiency of" such requirements.E This right became still clearer when, on April 1, 1981, the Camission issued an order in this proceeding explicitly authorizing parties l to " focus on the same safety concern that formed the basis for the NUREG
! requirements and litigate the issue of whether the NUREG ' requirement' is a sufficient response to that concern."Y In addition, the Cm mission stated E The Joint Intervenors are aware of the limitations imposed upon Petitions for Review by 10 C.F.R. S 2.786(b) (1) with respect to interlocutory appeals, requests for directed ceritification, and referrals. Review is requested here in light of the manifest error of the Appeal Board's decision arxl in order to afford the Cm mission the opportunity to remedy that error.
Y Statement of Policy, at 7-8.
E Revised Statement of Policy, at 8.
E April 1 Order, at 3-5 (emphasis added) .
that even where no relation to NUREG-0737 is established, the record should be reopened on IMI issues "if a party comes forward on a timely basis with significant new TMI-related evidence indicating that an NRC safety regulation would be violated by plant operation." E By its decision in ALAB-728, the Appeal Board reduced the foregoing stan-dards to meaningless words. Completely ignoring the fact that each of the Joint Intervenors' contentions focused explicitly on the same safety concerns as specific NUREG-0694 or 0737 requirements or alleged noncampliance with specific General Design Criteria, the Appeal Board held them inadmissible on the erroneous premise that the Joint Intervenors were seeking to challenge existing regulations or to impose requirements beyond those contained in existing regulations. ALAB-728, at 40-62. For example, Joint Intervenors' ccabined contentions 15 and 16 regarding systems interaction alleged nonempliance with GDC 2, 3, 4, 22, and 24 and the single failure requirements of Appendix A to 10 C.F.R. Part 50; nonetheless, the Board simply concluded that since those design criteria "have never been found by the Conmission to require the specific systems interaction study called for . . ." - indeed, that issue has apparently never even been addressed by the Ccmmission - the contentions are simply inad-missible. Id. at 59. Similarly, Joint Intevenors' ccabined contentions 2 and 3 regarding hydrogen focused on the same safety concern as NUREG-0694, item II.B.4, and NUREG-0737, item II.E.4.1, and alleged scra.wyliance with GDC 4,16, 41, and 50; the Appeal Board, however, simply rejected the contention as a E _Id.
E The Joint Intervenors submitted contentions regarding hydrogen, decay heat removal, reactor vessel level indication, IDCA analysis, environmental qualification, systems interaction, and documentation of deviations. In support of those contentions - and consistent with the Ccumission's TMI guidance - the Joint Intervenors cited specific relevant NUREG-0660, 0694, and 0737 requirements in addition to existing Conmission regulations, such as General Design Criteria. Those included, for example:
NUREG-0660, items I.A.4, I.E.8, I.F.1, II.C.1-3, II.F.5; NUREG-0694, item II.B.4; NUREG-0737, items I.C.1, II.E.4.1, II.F.2; 10 C.F.R. Part 50, Appendix A, GDC~2, 3, 4, 13, 16, 22, 24, 34, 41, and 50.
9 challenge to the regulations, doing so without even mentioning the foregoing GDC or NUREG requirements. M. at 46.
The Appeal Board's rationale in rejecting the Joint Intervenors' full power contentions ignores the Ccanission's prior guidance and orders. Hence, its decision warrants review and must be reversed.
C. Class Nine Accident Analysis In May 1979, the Joint Intervenors moved to reopen the procceding to require the Staff to supplement the final environmental impact statement ("EIS")
for Diablo Canyon to address the environmental consequences of a Class Nine accident. The Licensing Board rejected that request, ruling instead that, under the Ccmission's Interim Statement of Policy, no such consideration was required for Diablo Canyon due to the date the EIS was cmpleted and the absence of any special circumstances at Diablo Canyon.E !
The Appeal Board affirmed, concluding (1) that the policy announced by the Ccenission in 1980 was not intended to apply to Diablo Canyon and (2) that the i
Board need not address the issue of special circumstances because the Joint Intervenors had made no such argument. AIAB-728, at 25-28.
On the contrary, the Joint Intervenors based their application both on the o'ccurrence of a Class Nine accident at 'IMI and on the special circumstances of Diablo Canyon's mistaken siting less than three miles from a major active earth-quake. fault discovered after the facility had been designed and substantial con-I struction had begun. Incredibly, the Licensing Board found those circumstances insufficient under the Ccanission's Statement of Interim Policy in light of the finding by the Appeal Board in AIAB-644 that Diablo Canyon ccuplies with the Comission's seismic safety regulations. More incredible still, however, the Appeal Board explicitly refused even to address the issue of special N/ IBP-81-5,13 NRC 226 (1981) .
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circumstances (AIAB-728, at 28) despite the lower board's ruling on precisely that issue and the fact that the Joint Intervenors specifically appealed that ruling by filing exceptions to the Licensing Board's findings under the Interim Policy Statement - including its finding of no special circumstances (Exception No. 51) - and later briefing those exceptions.E The Appeal Board has previously recognized the existence of " exceptional circumstances in this proceeding. E Its decision here singly to ignore the issue is plainly inconsistent and improper and must, therefore, be reversed. E D. Low Power Environmental Analysis l
Neither an EIS nor an environmental impact appraisal has been prepared to j consider the special environmental effects of low power testing at Diablo i
Canyon, including particularly the costs and benefits of such testing and its possible impact on the fair adjudication of PGandE's full power application.
I E Joint Intervenors' Exceptions to the Licensing Board's July 17, 1981
, Partial Initial Decision, at 10 (August 3,1981); Joint Intervenors' Brief in Support of Exceptions, at 56-60 (September 2,1981) .
N In AIAB-519, at 12, NBC (January 23, 1979), the Appeal Board stated:
l We have here a nuclear plant designed and largely built on one set of seismic assumptions, an intervening discovery that those assunptions underestimated the magnitude of potential earthquakes, a re-analysis of the plant to take the new estimates into account, and a post hoc
- conclusion that the plant is essentially satisfactory as is 2 but on l theoretical bases partly untested and previously unused for those purposes. We do not have to reach the merits of those findings to conclude that the circumstances surrounding the need to make them are exceptional in every sense of that word. (Emphasis added.)
E Numerous decisions of the federal courts have recognized the need to supplement an EIS when new information is obtained that was unknown at the time j
the original EIS was prepared. See, e.g., People Against Nuclear Energy v.
U.S. Nuclear Regulatory Camission, 678 F.2d 222 (D.C.Cir.1982), rev'd on other grounds sub nczn. Metropolitan Edison Co. v. People Against Nuclear Energy, No. 81-2399, U.S. (1983); Essex County Preservation Ass'n v.
Campbell, 536 F.2d 956 (1st Cir.1976); Stop H-3 Ass'n v. Lewis, 538 F.Supp.
149 . (D. Hawaii 1982) .
l e
l Because licensing of nuclear facilities constitutes major federal action within ;
the meaning of NEPA, the preparation of an adequate EIS is a mandatory !
prerequisite to any decision by the Comission concerning a license application.E The failure of the Licensing or Appeal Boards to require either an EIS or an environmental impact appraisal (AIAB-728, at 21-24) 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 impact appraisal be prepared prior to
"[i]ssuance of a license to operate a power reactor . . . at less than full power . . . ." Failure to ccmply wtih this unambiguous requirement mandates denial of the requested license. 42 U.S.C. SS 2233(d), 2236(a), and 2237; 10 C.F.R. S 50.57 (a) and (c) .
E. Emergency Preparedness Relying upon the Comission's San Onofre decision, the Appeal Board
. rejected the Joint Intervenors' contention that consideration of the ccmplicating effects of an earthquake on emergency prepareness must be considered prior to licensing. AIAB-728, at 21. The Joint Intervenors respectfully subnit that the Appeal Board erred because the San Onofre decision is not controlling in this case for several reasons. First, the mistaken siting of Diablo Canyon described above renders especially acute the risk of major seismic events and, conse-quently, the need to consider the complicating effects of an earthquake on emergency preparedness. Second, there has been and is currently no generic consideration of the issue, through rulemaking or otherwise, nor is any such concideration appropriate in light of the issue's particular relevance to only one or two facilities located in areas of recognized high seismic risk. Third, t
E See, e.g., Natural Resources Defense Council v. U.S. Nuclear l Regulatory Comission, 539 F.2d 824 (2d Cir.1976), vacated for reconsideration i
of mootness, 434 U.S.1030 (1977); Izaak Walton League of America v.
Schlesinger, 337 F.Supp. 287 (D.D.C.1971) .
10 C.F.R. S 50.47(a) requires that emergency plans be capable of implementation, as does NUREG-0654, item II.J.10.k, which mandates " identification of and means for dealing with potential impediments . . . to use of evacuation routes, and contingency measures." Although earthquakes fall clearly within this category, no
" identification of and means for dealing with" seismic-related impediments has .
been required.for Diablo Canyon. 'Ib the extent that San Onofre is interpreted by the Comnission to dictate such a result, it is inconsistent with the Atomic Energy
[ Act and based upon insufficient evidence in the recor.d, and it must be overruled.
The Appeal Board also rejected the Joint Intervenors' contentions that the Licensing Board inproperly failed to address adequately the specific 10 C.F.R S 50.57(b) criteria. In so doing, the Appeal Board relied upon S 50.57(d), re-cently added to 10 C.F.R. Part 50. The Joint Intervenors subnit that such provi-sion as applied by the Board constitutes an improper and ill-advised retrenchment frce the Comnission's post rIMI inprovements, and it undermines even the pretense of offsite preparedness at Diablo Canyon or any other nuclear facility to which it may be applied. As such, it cannot be reconciled with the Ccanission's respon-sibility under the Atcunic Energy Act to protect the public health and safety.
g The Ccanission has not yet applied S 50.57(d) . Its review in this case, therefore, is especially warranted.
V. Conclusion For the reasons stated, the Joint Intervenors respectfully request the Consnission to grant this Petition for Review, to establish a schedule for briefing of the issues raised, and to reverse the rulings of the appeal Board in ALAB-728.
, DATED: June 8, 1983 Respectfully subnitted, JOEL R. REYNOLDS, ESQ.
JOIN R. PHTTLTPS, ESQ.
ERIC HAVIAN, ESQ.
KENNETH GOLDENBERG, ESQ.
Center for Law in the Public Interest 10951 W. Pico Boulevard Los Angeles, CA 90064 (213)470-3000
.1 @ _ _ _ _ _ - - _ _
DAVID S. FLEISQ RKER, ESQ.
P. O. Box 1178 Oklahana City, OK' 73101
- By V'JGELR.REYlOLDS Attorneys for Joint Inter-venors SAN LUIS W ISPO MOIHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
EODIOGY ACTION CLUB SANDRA SILVER ELIZABEIH APFRTRRm JCHN J. FORSTER l
l l
i l
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4 CQ.7;N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 03 "q 13 MO S BEFORE THE COMMISSION- -
)
In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 O.L.
) 50-323 O.L.
)
(Diablo Canyon Nuclear Power )
Plant, Units 1 and 2) ) (Full Power Licensing
) Proceeding)
)
CERTIFICATE OF SERVICE I h'ereby certify that on this 8th day of June, 1983, I have served copies of the foregoing JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-728, mailing them through the U.S. mails, first class, postage prepaid.
Nunzio Palladino, James Asselstine, Chairman Commissioner U.S. Nuclear Regulatory . U.S. Nuclear Regulatory Commission Commissioner Washington, D.C. 20555 Washington, D.C. 20555 Victor Gilinsky, John Ahearne, Commissioner Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory .
Commissioner Commission Washington, D.C. 20555 Washington, D.C. 20555 Thomas Roberts, Samuel J. Chilk, Commissioner Secretary U.S. Nuclear Regulatory , U.S. Nuclear Regulatory Commission Commissioner Washington, D.C. 20555 Washington, D.C. 20555
O Mr. Harold Denton Director of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Leonard Bickwitt, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docket and Service Branch Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas S. Moore, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. W. Reed Johnson
, Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. John H. Buck Atomic S'afety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Admin. Judge John F. Wolf, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Glenn O. Bright
. Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry R. Kline Atomic Safety & Licensing Appeal Board
. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lawrence Chandler, Esq.
Office of the Executive Legal Director - BETH 042
- U.S. Nuclear Regulatory Commission Washington, D.C. 20555
9 Herbert Brown, Esq.
Lawrence Coe Lanpher, Esq.
Alan Dynner, Esq.
Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.
Washington, D.C. 20036 John Van de Kamp, Attorney General Andrea Sheridan Ordin, Chief Attorney General Michael J. Strumwasser,
. Special Counsel to the Attorney General Office of the Attorney General State of California 3580 Wilshire Boulevard, Suite 800 Los Angeles, CA 90010 Janice E. Kerr, Esq.
Lawrence Q. Garcia, Esq.
J. Calvin Simpton, Esq.
California Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mr. Fredrick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, CA 93105 Malcolm H. Furbush, Esq.
Vice President & General Counsel Philip A. Crane, Esq.
. Pacific Gas and Electric Company Post Office Box 7442 San Francisco, CA 94106 David S. Fleischaker Post Office Box 1178 Oklahoma City, OK 73101 i Richard B. Hubbard l MHB Technical Associates 1723 Hamilton Avenue Suite K
! San Jose, CA 95725 Arthur C. Gehr, Esq.
Snell & Wilmer 3100 Valley Center i
Phoenix, AZ 85073
s J
- ' Virginia and Gordon Bruno Pecho Ranch Post Office Box 6289 Los Osos, CA 93402 Sandra and Gordon Silver 1760 Alisal Street San Luis Obispo, CA 93401 Bruce Norton, Esq.
Norton, Burke, Berry &
French, P.C.
2002 E. Osborn Phoenix, AZ 85016 Nancy Culver 192 Luneta San Luis Obispo, CA 93401 Carl Neiburger Telegram Tribune Post Office Box 112 San Luis Obispo, CA 93402 i (A A C. C4AA% b AMANDA VARONA 4
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