CLI-80-42, Requests Directed Certification of ASLB 810213 Prehearing Conference Order & Commission Revised Statement of Policy, CLI-80-42.Joint Intervenors Contentions Admissibility Depend on Statement Interpretation.W/Certificate of Svc
| ML16340B447 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 02/23/1981 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CLI-80-42, ISSUANCES-OL, NUDOCS 8102250721 | |
| Download: ML16340B447 (20) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
PACIFIC GAS AND ELECTRIC COMPANY
)
)
(Diablo Canyon Nuclear Power
)
Plant, Units Nos.
1 and 2) w/z~(e f Docket No~50-2749K'.
~5M323 0<L.
RE UEST FOR'DIRECTED CERTIFICATION William J.
Olmstead Assistant Chief Hearing Counsel February.23, 1981 I
810$ $ Q+
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOf'f BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units Nos.
1 and 2)
)
)
)
)
Docket Nos.
50-275 O.L.
50-323 O.L.
RE VEST FOR DIRECTED CERTIFICATION I.
INTRODUCTION On February 13, 1981, the Licensing Board in this proceeding issued a Prehearing Conference Order which, inter alia, admitted certain conten-tions proposed by Joint Intervenors for litigation in hearings scheduled to commence May 19, 1981.
The contentions were admitted pursuant to the Board's interpretation of the Commission's "Revised Statement of Policy:
Further Commission Guidance for Power Reactor Operating Licenses, "CLI-80-42, 12 NRC -(December 18, 1980).
(Hereinafter "Revised Policy Statement".)
The Board's interpretation was rendered following a prehear-ing conference held on January 28, 1981 at which each party (including the NRC Staff) had presented the Board with a differing view of the correct interpretation of the policy statement.
There are now four differing interpretations of the Commission's Revised Policy Statement on the record in this docket.
In the circumstances, the NRC Staff believes that the Commission should direct certification of the issue pursuant to 10 C.F;R.
5 2.718(i) and its Revised Policy Statement, review the Board s
Prehearing Conference
- Order, and determine which, if any, of the Joint
Intervenors'ontentions should be litigated prior to ruling on Pacific Gas and Electric Company's (PGKE) motion for fuel load and low power test authorization.
II, BACKGROUND On July 14,
- 1980, PG&E filed a motion in this proceeding for authori-zation to load fuel and conduct low power testing pursuant to 10 C.F.R. 5 50.57(c).
The authorization was sought even though the evidentiary record in this proceeding had closed because a motion to reopen the record to consider Class 9 accidents and emergency planning had been filed by Joint Intervenors in Hay of 1979 and the Board had deferred ruling on the motion until the NRC Staff's report on THI-related matters had been completed.
(SER Supplement 10 issued in August 1980 addressed those issues in so far as fuel load and low power testing was concerned.)
On December 3, 1980, Joint Intervenors filed a motion with the Commission requesting directed certification of several questions concerning the application of the Commission's June 20, 1980 statement of policy to the pending Diablo proceedings.
In that motion Joint Intervenors essentially sought authority to challenge the sufficiency of requirements contained in NUREG-0694.
The Commission denied the motion on December 22, 1980 because it had mooted the issues sought to be raised by Joint Intervenors with the issuance of its Revised Policy Statement and the issuance'of 1/
Mhile the Staff recognizes that certification authority under 5 2.718(i) has been delegated to the Appeal Board (10 C.F.R. 5 2.785(b)(1)),
the Commission's Revised Policy Statement seems to contemplate the Commis-sion directing certification in appropriate circumstances such as exist here.
At the time the Commission did not find such exceptional circumstances as to warrant the extraordinary involvement of the Commis-sion at that stage of the proceeding.
The Licensing Board in its February 13 Prehearing Conference Order summarizes the positions of the parties concerning the proper interpre-tation of the Revised Policy Statement.
(Order pp.
7-10)
It then sets forth its own interpretation which differs from any of those urged by the parties.
On the basis of its interpretation it admitted some of Joint Intervenors contentions and denied others.
The Licensing Board also determined that a sufficient reason does not exist to certify the matter to the Commission.
(Order p.
16)
- However, should yet another interpretation be adopted on appeal, another year will elapse after appeal before a final decision can be reached.
Consequently, the NRC Staff believes that the Commission should direct certification.
The Staff has been informed that Governor Brown, Joint Intervenors, and PG&E are all taking steps to seek review of the Board's Prehearing Conference Order in some form.
III.
ARGUMENT 10 C.F.R. 5 2.718(i) provides that the Commission may direct certifi-cation of questions to it for determination.
The Commission s Revised Statement of Policy indicates that "...the Commission will continue to monitor developments with regard to the litigation of our Action Plan requirements and will continue to offer guidance where appropriate."
In light of the confusion on this record concerning the proper application of the Revised Policy Statement to PGSE's motion of fuel load and low
power test authorization, the Commission should direct the record to be certified to it for determination.
Certification is proper in a case involving novel action that presents a major policy question relevant to a pending application where there are divergent views. [Offshore Power S stems (Floating Nuclear Plants),
ALAB-500, 8 NRC 323, 325 "( 1978).
While the Offshore decision involved a case where there were divergent opinions among Board members themselves, directed certification is warranted here because this case involves the first application of the Commission's Revised Policy State-ment to a contested ajudicatory proceeding and the divergent views of the Board and parties are of such magnitude that the length and nature of the proceeding will be significantly affected by the policy interpretation adopted.
The Licensing Board refusal to certify the question to the Commission on its own was reasonable because of the Commission's prior denial of Joint Intervenor's request for directed certification and because of the Commission's statement in that decision that "...the Licensing Board now has the authority to rule on the issues raised by Joint Intervenors... [and]...this motion does not raise such exceptional circumstances as to warrant the extraordinary involvement of the Commis-sion at this stage of the proceeding."
(De'cember 22, 1980 Order)
A party seeking certification under 3 2.718(i) must, at a minimum, establish that a referral under 10 C.F.R. 5 2.730(f) would have been proper - i.e., that a failure to resolve the problem will cause the public interest to suffer or will result in unusual delay and expense.
Puerto Rico l4ater Resources Authorit (North Coast Unit 1), ALAB-361, 4
NRC 625 (1976); Toledo Edison Co.
(Davis-Besse),
ALAB-300, 2 NRC 752,
759 (1975); Public'Service Co. of New Ham shire (Seabrook Units 1
8 2),
ALAB-271, 1
NRC 478, 483 (1975).]
The Appeal Board has stated that discretionary interlocutory review will only be granted where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter could not be alleviated by a later appeal, or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
Lpublic Service Co. of Indiana Inc., (Marble Hill Units 1 and 2), ALAB-405, 5 NRC
- 1190, 1192 (1977).j While the Commission should not normally involve itself in questions concerning the admissibility of contentions in a proceeding, the situation is much different in the current case.
Here the evidentiary record on all issues related to Operating License issuance was completed and closed in 1979.
Due to the occurrence at Three Mile Island, the Licensing Board deferred completing its decision on all contested issues until Commission guidance had been received.
The parties'ositions concerning the Commission's Revised Policy Statement range from PGICE's position which would urge denial of all contentions submitted by Governor Brown and Joint Intervenors to Joint Intervenor's position which would judge contentions by the standards used by a Licensing Board at the beginning of the Commission s ajudicatory process.
If the former position were to
- prevail, PGBE would be entitled to a decision on its low-power application within a few months.
If the latter position ultimately prevails during 2/
Board Order dated June 5, 1979.
Issues on which the Board has yet to issue a decision are set forth in the Partial Initial Decision, 10 NRC 453 (1979).
the appellate process, it will be October before review in the normal course will be available and then further hearings would have to be held thus making it impossible to finally decide PG&E's low-power application before the summer of 1982.
In the circumstances it is obvious that if the Commission does not direct certification of the question, both PG&E and Joint Intervenors are threatened with serious impacts as a practical matter.
The NRC Staff's resources will be seriously impacted if further litigation is required beyond that currently scheduled.
This impact can be avoided if a prompt resolution of the Commission's interpretation of its policy statement can be obtained.
IV.
CONCLUSION For the foregoing reasons the NRC Staff urges the Commission to direct certification of the Licensing Board's February 13, 1981 Prehear-ing Conference Order and review the Board's interpretation and applica-tion of the Commission's Revised Statement of Policy in this proceeding.
Respectfully Submitted
/gj~
William J.
0 mstead Assistant'hief Hearing Counsel Dated at Bethesda, Maryland this 23rd day of February 1981
UNITED STATES OF AtlERICA NUCLEAR RFGULATORY COl'"iISSION BEFORE THE COhfiISSION in the flatter of PACIFIC GAS AND ELECTRIC COliPANY (Diablo Canyon Nuclear Power Plant Unit Nos.
1 and 2)
Docket Nos. 50-275 O.L.
50-323 O.L.
CFRTIF ICATE OF SERVICE I hereby certify that copies of RE(BLUEST FOR DIRECTED CERTIFICATION 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 23rd day of February, 1981.
+i",r. Samuel J.
Chi 1k Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission liashington, D.C.
20555
- Leonard Bickwit, Esq.
General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission liashington, D.C.
20555
- Ri chard S.
Sa1 zman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission 1 ashington, D.C.
20555
- Dr. John H. Buck Atomic Safety and Licensing App'al Board U.S. Nuclear Regulatory Commission l<ashington, D.C.
20555
- Dr. ll. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comnission l ashington, D.C.
20555
- hr. Thomas S.
t~ioore, Hember Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission 1 ashington, D.C.
20555
- Elizabeth S.
- Bowers, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission l ashington, D.C.
20555
- hr. Glenn 0. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Com-..ission Vashington, D.C.
20555 Dr. Jerry Kline Senior Ecologist Battelle tiemorial Institute
- Columbus, Ohio 43201 Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, Califcrnia 93401
Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company Room 3127 77 Beale S'treet San Franci sco, Cal iforni a 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc..
4623 furore Mesa Drive Santa Barbara, Ca 1 iforni a 93105 Mrs. Raye Fleming 1920 Mattie Road Shall Beach, California 93449 Richard E. Blankenburg, 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 Obispo, California 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 8 Wilmer 3100 Valley Center Phoenix, Arizona 85073 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Harry M. Willis Seymour E Willis 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'orth 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, California 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 L 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
J ll
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Corrroission 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 William J.
OIrastead Assistant Chief Hearing Counsel
V t