ML16340B922
| ML16340B922 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/16/1981 |
| From: | Bradley Jones, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ALAB-644, ISSUANCES-OL, NUDOCS 8107200340 | |
| Download: ML16340B922 (28) | |
Text
0
/
UNITED STATES OF NIERICA NUCLEAR REGULATORY COMNISSION BEFORE THE CONtiISS ION In the Hatter of
)
PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon Nuclear Power Plant
)
Unit Nos.
1-and 2)
.)
Docket Nos.
- 75 0.
.L.
'-'ettj h
'UL171981~ 9
~
~
p, S, t4JCLEA'k RCOUlATI@5 COMMIS5OH
.io NRC STAFF
RESPONSE
TO GOVERNOR BROWN'S PETITION TO REVIEW ALAB-644 William J.
Olmstead Assistant Chief Hearing Counsel Bradley W. Jones Counsel for NRC Staff July 16, 1981 gg07
)/(
8107200340 8107ib PDR ADOCK 05000275 G
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon Nuclear Power Plant,)
Unit Nos.
1 and 2)
')
Docket Nos.
50-275 O.L.
50-323 O.L.
NRC STAFF
RESPONSE
TO GOVERNOR BROWN'S PETITION TO REVIEW ALAB-644 BACKGROUND On September 29, 1979, the Atomic Safety and Licensing Board (Licensing Board) in the above proceeding issued a Partial Initial Decision.
Pacific Gas ; ~d Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1 and 2) LBP-79-26, 10 NRC 453 (September 27, 1979).
Subs'equent to that decision, the Atomic Safety and Licensing Appeal Board (Appeal Board) issued ALAB-590, ll NRC 876 (June 24, 1980), granting Joint Intervenors'otion to reopen the record on the seismic portion of the Licensing Board's Partial Initial Decision.
Hearings were conducted and evidence taken by the Appeal Board from October 20-25, 1980.
Following those hearings, the Appeal Board issued ALAB-644, 13 NRC (June 16, 1981).
During the course of the appeal of the Partial Initial Decision, Governor Brown of the State of California was allowed into the proceeding as a representative of an interested
- state, under 10 C.F.R. 5 2.715(c).
"Order Relative to the Petition of Governor Edmund G. Brown, Jr."
(November 16, 1979).
On July 1, 1981, Governor Brown filed a Petition for Review of ALAB-644 with the Commission.
w 2 w
INTRODUCTION Governor Brown's Petition for Review was filed under 10 C.F.R. 5 2.786.
That provision governs the review by the Commission of decisions and actions of an Atomic Safety and Licensing Appeal Board.
That section indicates that the Commission will grant a petition for review only where an important question of fact, law, or.policy is raised.
'The burden of showing that there should be Commission review is on the party seeking
- review, a showing that has not been met by Governor Brown.
10 C.F.R. 5 2.786(b)(4) notes several instances in which the Coranission will not exercise its discretion to review.
With respect to questions of fact, subsection 4(ii) states that:
(ii) A petition for review of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved the factual issue necessary for decision in a clearl erroneous manner contrar to the resolution of that same issue b
the tomic afet an Lscensin Boar emphasis added The Commission has stated its policy that "[ajs a general matter, this Commission does not sit to review factual determinations made by its subordinate panels...it is simply not practical for us to do so in most cases."
Public Service Com an of New Ham shire (Seabrook Station, Units 1 and 2) CLI-76-17, 4
HRC 451, 467 (1977).
With respect to questions of law and policy, subsection 4(i) states that:
(i)
A petition for review of matters of law or policy will not ordinarily be granted unless it appears the case involves an i~ << <<h 1d ~rifi 1
ff <<h ment, the pub 1c health and safety,...or otherwise raises impor-tant questions of public policy.
(emphasis added).
Governor Brown raises four issues in his petition for review, three of
~0 which are factual matters rather than policy issues.
Only a portion of the fourth issue arguably involves a law or policy issue within p ~
5 2. 786(b) (4) ( i ).
DISCUSSION A.
Ma nitude Saturation The Appeal Board, after an extensive discussion of magnitude satur-ation agreed with the Licensing Board that, in the near field, peak high frequency ground motion is independent of earthquake magnitude.
Pacific Gas and Electric Com an (Diablo Canyon. Nuclear Power Plant, Units 1 and
- 2) ALAB-644, 13 NRC (June 16, 1981) Slip Opinion pp. 42-52.
Governor Brown's petition for review challenges this factual determination, arguing that the Board should have given more weight to the testimony of the Governor's witnesses.
The Governor's arguments simply do not present a
factual issue which is'appropriate for Commission review.
Both the Licensing Board and the Appeal Board took evidence on this issue.
The Licensing Board discussed and rejected the position being presented by Governor Brown.
Partial Initial Decision, 10 NRC at 488.
The Appeal Board reviewed that decision, discussed the evidence presented by the witnesses at the reopened proceeding and, noting that even Joint Intervenor's witness did not present testimony which significantly differed from the other witnesses, accepted the concept of magnitude saturation for the seismic analysis of Diablo Canyon.
ALAB-644, at 50.
In view of the detailed explanation of their conclusion, the resolution of this issue by the Appeal Board can not be said to have been done in a clearly erroneous manner - as contemplated by 10 C.F.R. 5 2.786(b)(4)(ii).
The Comnission has indicated in that section that it will not accept a petition for review on a factual issue where both the Licensing Board and the appeal Board have agreed on the resolution of an issue.
- Thus, the Commission should not accept review of this issue.
Governor Brown has not alleged nor presented any reason not to apply the plain meaning
of the language in 10 C.F.R. 5 2.786(b)(4)(ii) to the issues raised in Governor Brown's petition for review.
- Here, we have a technical issue on which large amounts of evidence was heard and on which two Boards devoted considerable time and consideration to arrive at the same result.
These
'oards have served the purpose for which they exist and the Commission I
should not review such factual issues.,
Governor Brown's petition also raises a procedural question which relates to the magnitude saturation issue.
The Governor asserts that the Appeal Board erred in not reopening the record to consider a recent United States Geological Service (USGS) report.
"Governor Edmund G. Brown, Jr. Petition for Review of ALAB-644", pp. 5-6.
The standards for reopening a closed record are that there must be si nificant new information which would lead to a different result if it had orginally been considered.
Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant, Units 1 and 2) CLI-81-5, 13 NRC (April 1, 1981) Slip opinion at pp.
2-3.
The Appeal Board ruled correctly that this standard had not been met by the USGS report.
The report did not cover new information, but was simply a reanalysis of old information or information which predated the close of the record on the seismic issue.
ALAB-644, at 176-177.
In addition, the Appeal Board specifically noted that they had carefully reviewed the USGS report and that it would not change the result that the Board reached.
ALAB-644 at 178.
Thus, it is an unassailable conclusion that the standards for reopening were not met by the USGS report and the Commission should not disturb the Appeal Board's ruling on that issue.
B., The Tau Effect As with the issue of magnitude saturation, the question of the exis-tance or non'-existance Tau Effect is a factual issue.
Governor Brown
again argues that the Board did not accept the testimony of the correct witnesses.
Petition for Review, at 9.
The Tau Effect, which takes into account certain properties, of large rigid structures as they are affected by earthquakes, was thoroughly discussed by the Licensing Board and the Appeal Board.
Each of the specific challenges to the concept were discussed by the Appeal Board and rejected.
ALAB-644 at 114-146.
The Licensing Board similarly dis'cussed and accepted the Tau Effect as applied to the Diablo Canyon seismic analysis.
Thus, both the Appeal Board and the Licensing Board have agreed on this factual issue.
While'overnor Brown alleges that this is not a conservative method of analysis, both the Licensing Board and the Appeal Board noted that there were two methods presented for considering the Tau Effect, and the most conserva-tive parts of each Tau.c'alculation were used for the seismic analysis.
Partial Initial Decision 10 NRC at 495; ALAB-644 at 139-140.
In any event an examination of the Appeal Board's opinion and Gover-nor Brown's petition for review does not reveal that the issue of the existence of the Tau Effect was decided in a clearly erroneous manner.
This is the first requirement under 10 C.F.R. 5 2.786(b)(4)(ii) -for a factual issue to be appropriate for Commission review.
As we have already noted, that provision of the regulations also requires that the ASLB and the Appeal Board arrive at different results on the factual issue in order for Commission review to be appropriate.
The issue raised by Governor Brown fails to meet either of the rule's requirements for Comnission I
review of a factual
- issue, and his petition for review on this issue should be denied.
C.
The Focusin Phenomenon The Appeal Board considered evidence on whether a focusing phenomenon
should be included in the seismic analysis to increase the peak acceler-ation for the Diablo Canyon site.
Whether or not a particular phenomenon will have an effect on a particular site is a factual question to be reviewed only if the requirements of 10 C.F.R. 5 2.786(b)(4)(ii) are met.
They concluded that no such increase need be included in the Diablo Canyon seismic analysis.
ALAB-644 at 86-87.'s noted by the Appeal Board, even the witness presented by the Joint Intervenors to promote the focusing theory acknowledged that the model used as one basis for his focusing predictions could not be claimed to be reliable.
Id. at 79.
Under these circumstances, the Governor has not shown an important question of fact clearly decided in an erroneous
- manner, which would justify the extraor-dinary exercise of Commission review.
The Licensing Boa@i also noted that focusing was one of the increase factors advocated in the hearing before it and rejected that increase by approving the seismic design of Diablo Canyon.
Partial Initial Decision, 10 HRC at 486.
There is no disagreement between the Licensing Board and the Appeal Board on this matter.
Thus, the second requirement of 10 C.F.R. 5 2.786(b)(4)(ii) relating to Commission review of factual issues is not met.
Under these circumstances, the Commission should not grant the petition for review on this factual issue.
D.
The Effective Acceleration Conce t The Governor's petition raises the issue of whether the effective acceleration phenomenon exists and whether its use is acceptable under Appendix A to 10 C.F.R. Part 100.
Petition for Review at 6.
This issue involves questions of both fact and law.
Both the Licensing Board and the Appeal Board considered the analysis of the effective acceleration factor presented during the hearings.
The Appeal Board rejected the
e
7 attack on the concept of effective acceleration, delineating the exten-sive evidence on which they based their finding that the concept was appropriate for the Diablo Canyon seismic analysis.
ALAB-644 at 67-72.
The Licensing Board similarly considered the testimony both for and against using the effective acceleration concept and found the Staff and Applicants conclusions appropriate for use in:.the 'Diablo Canyon seismic analysis.
~r Partial Initial Decision, 10 NRC at 486-490.
The extensive discussion of the basis for their conclusions reveals it is not reasonable to conclude that the Appeal Board decided this issue in a clearly erroneous manner.
In addition, both Boards, after considering the evidence, reached the same conclusion.
Ther'afore, under 10 C.F.R. 5 2.786(b)(4)(ii) the factual question of whether the reduction effect of effective acceleration exists is not the type of factual question where the exercise of the Commission's review authority would be appropriate.
As regards the legal question of whether the regulations allow for the use of the effective acceleration concept in meeting regulatory require-
- ments, the Governor has not demonstrated grounds for Commission review.
The Commission has already considered on one occasion the appropriateness of using effective acceleration to meet Section VI of Appendix A to 10 C.F.R. Part 100.
In Public Service Co. of New Ham shire (Seabrook Station, Units 1 and 2), CLI-80-33, 12 NRC 295 (1980), the Comnission reviewed ALAB-422 in which the Appeal Board had adopted the concept of effective
'cceleration as acceptable to meet the Appendix A,Section VI requirements.
The Commission remanded the decision to the Appeal Board on grounds unrelated to the issue of effective acceleration, although the Commission did direct the Appeal Board to take further evidence on the relationship between the mean of the 'maximum ground accelerations and the maximum effective ground
acceleration.
- Seabrook, 12 NRC at 298.
The Governor, however, is not arguing the sufficiency of the evidentiary record on such relationships.
but whether its use is acceptable under Appendix A to 10 C.F.R. Part 100.
In Seabrook, the Commission did not directly deal with the question of the appropriateness of effective acceleration under the regulations.
However, the very fact that the Commission ordered the Appeal Board to take'additional evidence on the relationship between the mean of the maximum ground acceleration and the maximum effective ground acceleration indicates that the Cormission, contrary to the Governor's position, did not intend its rules to require the most extreme data point to be used to determine maximum ground acceleration in meeting Appendix A requirements.
In addition, Governor Brown's legal challenge to the use of effective acceleration is based on an incomplete and inaccurate statement of what the applicable regulation requires.
Petition for Review at 7.
While Governor Brown says that Appendix "A" states that the SSE shall be defined by the "maximum vibratory accelerations",
this is an oversimplification of the Appendix "A" requirements.
The Section of the regulations being referred to by the Appeal Board in the portion of ALAB-644 referenced by Governor Brown defines vibratory ground motion, not the SSE as indicated by Governor Brown.
ALAB-644 at 68.
The section of the regulations being discussed in ALAB-644 at that point is Appendix "A", section VI (a)(1) of 10 C.F.R. Part 100.
That section specifically states that the vibratory ground motion shall be defined by the res onse s ectra corresponding to the maximum vibratory accelerations.
The error in Governor Brown's analysis is that in arguing for the use of the maximum vibratory acceleration he has ignored the question of the frequency at which those accelerations occur.
Section V (a)(2)(iv) of Appendix "A" specifically notes that the
maximum vibratory accelerations of importance for determining the character-istics of a particular SSE are those which occur at the site "throughout the frequency range of interest..."
As the Appeal Board discussed, the highest acceleration values are those which occur at the highest frequency, and accelerations which occur at the highest frequency are not of concern for a nuclear power plant, although they may" have been recorded by the seismographs.
ALAB-644 at 68-69.
Thus, Governor Brown's argument that the highest maximum vibratory ground acceleration should be used, without reference to the frequency at which they occur, has little. factual or legal basis.
Extensive evidence was considered by both the Licensing Board and the Appeal Board.
Both reached the result that an appropriate adjustment to the mean of the maximum ground acceleration, based on the concept of effective acceleration, had been demonstrated for use in meeting the regulatory requirements of Section VI of Appendix A of 10 C.F.R. Part 100.
Two separate Appeal Boards have found that "under any rule of reason,
...[the] requirement must be understood to have reference to effective maximum acceleration.
Public Service Com an of New Ham shire (Seabrook Station, Units 1 and 2) ALAB-422, 6 NRC 33, 63 (1977) and ALAB-644 at p.
68.
With respect to the legal question of whether effective acceleration can be used in determining compliance with Section VI of Appendix A to 10 C.F.R. Part 100, no important question of law remains for resolution by the Commission.
Having failed to meet the requirements of 10 C.F.R. 5 2.786, the Commission should deny Governor Brown's petition for review on the issue of the use of the effective acceleration concept in the Diablo Canyon seismic analysis.
<<I
~ ~ CONCLUSION The issues of focusing, magnitude saturation and the Tau Effect all present purely factual issues not appropriate for Commission review under 10 C.F.R. 5 2.786(b)(4)(ii).
The effective acceleration concept issue involves a factual question not appropriate for review under 10 C.F.R. 5 2.786(b)(4)(ii) and a legal question which does not present a novel legal issue suitable for Commission review under 10 C.F.R. 5 2.786(b)(4)(i).
- Thus, Commission review-is not required on the grounds urged by Governor Brown.
Respectfully submitted, William J.
01 stead Assistant Ch f Hearing Counsel Bradley W. J s
Counsel f RC St Dated at Bethesda, Naryland this 16th day of July, 1981.
i UNITED STATES OF AMERICA UCLEAR REGULATORY COMMISSION ~
BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos. 50-275 O.L.
50-323 O.L.
CERTIFICATE'OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO GOVERNOR BROWN'S PETITION TO REVIEW ALAB-644 in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of July, 1981.
%r. Samuel J.
Chi 1k Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Leonard Bickwit, Esq.
General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Richard S. Salzman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck Atomic Safety and Licensing Appeal Board'.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- Br. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 o
~
- Mr. Thomas S. Moore, Member Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Administrative Judge John F. Wolf Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Mr. Glenn 0. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. Jerry Kline Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401
Philip A. Crane, Jr.,
Esq.
Pacific Gas
'and Electric Company P.O.
Box 7442 San Francisco, CA 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc..
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Raye Fleming 1920 Mattie Road Shall Beach, California 93449 Richard E. Bl ankenburg, Co-publisher Wayne A. Soroyan, News Reporter South County Publishing Company P. 0.
Box 460 Arroyo Grande, California 93420
- Ms. Majorie Nordlinger Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gordon Silver 1760 Alisal Street San Luis Obi spo, Cal ifornia 93401 John R. Phillips, Esq.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Marion P. Johnston, Esq.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Arthur C. Gehr, Esq.
Snell E Wilmer 3100 Valley Center Phoenix, Arizona 85073 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Harry M. Willis Seymour E Qillis 601 California St., Suite 2100 San Francisco, California 94108 Janice E. Kerr, Esq.
Lawrence g. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas E Electric Company 77 Beale Street San Francisco, California 94106 Bruce Norton, Esq.
3216 North 3rd Street Suitw 202 Phoenix, Arizona 85102 David S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W.
Washington, D.C.
20006 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K
San Jose, Cal ifornia 95125 Mr. John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0.
Box 112 San Luis Obispo, California 93406 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105 Mr. Herbert H. Brown Hill, Christopher 8 Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814
3
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington; D.C.
20555
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mark Gottlieb California Energy Commission MS-18 llllHowe Avenue Sacramento, California 95825 I
/,
/
~
William J. Olmstead Assistant Chief Hearing Counsel