ML16340A542
| ML16340A542 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/05/1979 |
| From: | Engelhardt T NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Jonathan Brown NORTHERN CALIFORNIA ECUMENICAL COUNCIL |
| References | |
| NUDOCS 7908210133 | |
| Download: ML16340A542 (48) | |
Text
July 5, 1979 Docket No. 50-275 O.L.
50-323 O.L.
John Pairman Brown Executive Director Northern Ca1ii'ornia Ecumenical Counci1
"+" ~l! ~lc(JII,ascii'44 Market Street, Fourth Floor San Francisco, California 94102
Dear Mr. Brown:
As Deputy Executive Legal Director of the NRC, I am pleased to respond to your letters of April 23 and June 21, 1979 which requested information about the actions to be taken by the Diablo Canyon Licensing Board in the aftermath of Three Mile Island.
In regard to delay of the Licensing Board.'s decision on the Diablo Canyon operating license, the NRC Staff has recommended and the Licensing Board has already decided that it will defer ruling on the matter of reopening the record in this case until a report on the significance and effects of the Three Mile Island accident is completed by the NRC Staff.
>le expect that that report, which will be completed 8 a timely fashion, will detail the lessons learned from Three Mile Island and thus offer concrete factual information for application to Diablo Canyon.
- However, because the Licensing Board is an independent adjudicatory tribunal before wlsich the NRC Staff appears as a party, and because of the complexity of applying lessons learned from the Babcock and Wilcox Three Mile Island Plant to the Westinghouse Diablo Canyon Plant, it is not possible a0 this time to say, in the absence of the Staff report, whether it will be necessary or the Board will desire to reopen the hearings 'to take further testimony on the subject.
You can be sure, however, that the Licensing Board will be sensitive to this issue and will take whatever steps are necessary in the hearing process to assure the public health and safety.
In regard to deferring the Licensing Board's decision in Diablo Canyon until the Special Comoission Report is completed, it,is not clear to me whether you mean the President,'s Special Comission or the NRC's Special Commission which is described in the enclosed NRC Statement of Policy.
However, I have been informed that the report of both investigatory bodies will be presented in the Fall of this year.
Again, while it would be speculative for me to predict the technical conclusions of either of these groups and/or the Licensing Board's legal actions in response to these reports, I can assure you oe r>ca~
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that the reports will be presented by the HRC Staff to the presiding Licensing or Appeal Board in a timely fashion after icing made public and that the results of these reports will specifically be taken into account in the review of safety. assurances for the Diablo Canyon Plants, Units 1 and 2.
floreover, until the evaluation of the Three Nile Island accident is completed'r, until otherwise directed by the. Commission, the Staff does not intend to issue any new licenses for nuclear power reactors even if authorized by a Licensing Board such as that presiding over the Diablo Canyon proceeding.
I regret the delay of our response to your initial letter and hope that this reply has been responsive to-your concerns.
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III
>/~/p UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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.
NRC STAFF
RESPONSE
TO INTERYENORS'OTION TO REOPEN THE RECORD ON SECURITY PLAN MATTERS Back round In a pleading dated June 8, 1979, Mr. M. Andrew Baldwin, an attorney alleged to be representing the San Luis Obispo Mothers for Peace, moved that the Licensing Board in the above-captioned proceeding establish a schedule for inspection of the Diablo Canyon Power Plant security plan by Intervenors and that the now past security hearings+
in this case be reopened and rescheduled to allow them to litigate the adequacy of that security plan. As grounds for their 2/
motion, Intervenors allege that the Licensing Board erred in refusing to permit r
the Mothers for Peace to participate in the radiological health and safety hearings held on'the Diablo Canyon'security plan.
Specifically, Intervenors assert that the Board erred in finding them in default under the provisions of gl Hearings on the security plan had previously been held on Monday, February 12, 1979.
2/ Intervenors'otion at 6.
~ g 4
10 C.F.R. 52.707 and that it should instead have allowed Mr. Baldwin-to 1/
enter an appearance on Thursday, February 8, 1979 and to cross-examine the security witnesses who were presented the following Monday, February 12, 1979.
Although the instant motion is styled a Motion to Reopen, the main thrust of Intervenors'leading is directed froward reversing the Licensing Board's refusal to let Mr. BaIdwin participate in the security hearings.
Accor'dingly, the instant motion is essentially one to reconsider the Licensing Board's previous decision.
For this reason, the NRC Staff will initially discuss below the correctness of the Licensing Board's refusal to allow participation of the Intervenors under the representation'f new counsel and then. will address the merits of Intervenors'otion to reopen the hearings under traditional caselaw.
For the reasons stated below, the Staff is of the opinion that the Board correctly ruled that Intervenors, through their new counsel, Mr. Baldwin, could not participate in the security hearings on such short notice and that Intervenors'nstant Motion to Reopen adds no new reasons why that decision should be overturned.
1/ It is not clear to the Staff 'what the relationship between the MFP and their two counsel are.
As far as the Staff knows (and no demonstration was made to the contrary),
Mr. Valentine still remains their counsel in this matter and thus Mr. Baldwin's author ity to countermand Mr. Valentine's decision is still unclear.
However, for the reasons listed infra, the Staff believes that the Hoard does not need this information to correctly decide the issue.
II.
Discuss>on A. ~Bd R 1i Intervenors allege that the Licensing Board erred in barring them from participation in the security plan hearings by not allowing a new attorney, Mr.
Baldwin, to enter an appearance and to cross-examine the witnesses presented by the Applicant and Staff. The Licensing Board found that the Intervenors had withdrawn themselves from the security issue by their counsel's letter of January 19, 1979,. that the same letter had admitted that Intervenors had a
gl Motion to Reopen at 2.
The instant situation is readily distinguishable from the situation presented in Louisiana Power and Li ht Com an (Waterford steam Electric Station, Unit 3), ALAB-117, 6 AEC 261 April 20, 1973) where the entry of new counsel on appeal warranted good cause for a delay in the case to give counsel an opportunity to prepare an appellate brief.
Public Service Electric and Gas Com an (Atlantic Nuclear Generating Station, Units 1 and 2, LBP-75-62, 2
NRC 702, 703 (October 14, 1977).
- Here, no advance warning was given, no active participation in the case was,had by counsel prior to his appearance and no good cause shown why his appearance, which radically changed the position taken by counsel in its January 19, 1979 letter, could not have been made in a more timely manner.
2/
The January 19, 1979 letter provided in pertinent part:
This Intervenor has been denied access to the security plan and has been denied the qualification of expert witnesses to review the plan, either for preparation for cross-examination or the presentation of affirmative evidence as to the inadequacy of the applicant's security plan.
Without the qualification of an expert witness to inspect the plan and advise Intervenor's attorney, it is impossible for this Intervenor to prepare, either for significant cross-examination on the inadequacies of the applicant's security plan or to present affirmative evidence to support Intervenor's contentions.
Therefore, this Intervenor will not be able to participate in the hearings now scheduled for the first week of February as
.to the adequacy of applicant's security plan.
no contribution to make to the proceeding without witnessesj-and that the request for participation by Mr. Baldwin was untimely since no security check could be made on Mr. Baldwin's credentials in the time left before the hearing.
Tr. 9104-9107.
The Board held that because of the findings above, the Intervenors had abandoned their contention on security and were in default under the provisions of 10 C.F.R. 52.707 and thus were not entitled to participate in the security tour or the in camera hearing sessions on security.
Tr. 9376.
B. ~Ill b1 Motions addressed to Licensing Boards to reconsider non-final decisions are covered by the provisions of 10 C.F.R. 52.771. In the absence of a presentation 2/
of new evidence on security plan matters, the issue becomes whether the law and facts are sufficient to warrant exclusion of Intervenors'ounsel from the hearings such that the Licensing Board should not exercise its discretion to reopen the record.
10 C.F.R. 52.707 provides that "On failure of a party to comply with any prehearing order.... the presiding officer may make such orders in regar'd to the failure as are just....".
In addition, a Licensing Board has inherent jurisdiction to control the course of a hearing procedurally.
For 3/
r these reasons, if the Intervenors were not in compliance with the order of the 1 /
The Staff also notes that no explanation was given as to why Mr. Baldwin could be expected to contribute to the proceedings by cross-examination under the same circumstances which Mr. Valentine felt would not be meaningful.
Public Service Com an of Oklahoma (Black Fox Station, Units 1
and 2), ALAB-397, 5
NRC 1143, 1149 May 9, 1977).
2/
"The power to reconsider is inherent in the power to decide,"
Consumers Power Com an (Midland Plant, Units 1
and 2), ALAB-235, 8 NRC 645, 646 October 17, 1974 citing S anish International Broadcastin Com an v.
- FCC, 385 F.2d
- 615, 621 (D.C.
Cir 1967 3/
Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1
an, L -,
NRC 39, 544 (1975).
Licensing or Appeal Boards, or the Intervenors waived their right to participate in the hearings, the Staff believes. that the Board would be. legally justified in ordering'whatever just:action it considered.to be necessary to conduct the security hearings.
C.
Waiver or Oefault In the instant case, both the Appeal Board and the Licensing Board have made it extremely clear what procedures are to be complied with before a party, including
- counsel, has access to the Diablo Canyon security plan for cross-examination purposes.
The clear thrust of these rulings has been to assure that only approved individuals can see the plan.
In that regard, the Appeal Board in this case stated that:
(2) If and to the extent released, the plan may--
and in most circumstances probably should be subject to a protective order.
See 10 CFR 52.790(e) and 52.740(c).
In considering a protective order, it is a material consideration whether the recipient of the information is likely to abide by such an order.
If it, is demonstrated that a particular individual is unlikely to do so, the Licensing Board might be justified in not permitting such individual to gain access to the informationJJ (Footnote omitted.)
g/
Pacific Gas and Electric Com an (Oiablo Canyon Nuclear Power Plant, Units 1
and 2
, ALAS-410, 5
NRC 1398, 1405 (June 9, 1977).
J
In addition, the Licensing Board, both before and after ALAB-410, had ruled that counsel for the Intervenors must sign a protective order under oath before access can be had to the security plan.
gl In the present
- case, no protective agreements:.had been signed by Intervenor s'ew counsel-nor was there a showing of good cause-for not executing a
2/
3/
protective agreement or furnishing reasonable notice to the parties of their intent to participate in the hearings at such a late date.
Thus the procedure followed by Intervenors was not only violative of the Licensing and Appeal Board,.
directives, but also did not give the parties adequate notice so that they might make appropriate inquiries concerning the new attorney.
In that
- regard, Licensing Board and parties were not informed of the intent of Mr.
Baldwin to participate in the hearings until a telegram arrived on the Thursday afternoon (February 8, 1979)~'efore the. Monday on which 'the security hearings were scheduled to begin, (February 12, 1979).
Moreover, Mr. Baldwin did not appear in person to explain his position until the day of the security hearings.
1/
Licensing Board Orders of June 23, 1976 and June 17, 1977.
2/
3/
See Mississi i Power and Li ht Co.
(Grand Gulf Nuclear Station, Units 1.
and 2
, LBP-73-41, 6 AEC 1057 1973).
See
~e
, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1
and 2
, ALAB-288, 2 NRC 390, 393 (1975).
g4 The telegram was dated 1545 of February 8, 1979 and read in its'ntirety:
Dear Mrs. Bowers,
Please enter my appearance on behalf of San Luis Obispo Mothers for Peace in the above referenced matter.
I am a member of the California Bar.
I intend to participate in the Diablo Canyon security systems tour Monday, February 12.
Please notify me by telephone or Elizabeth Apfelberg (805) 544-4955 or David Fleishacker where and when I should appear to begin the tour.
Regret that another case required my return to San Francisco.
Respectfully, W. Andrew Baldwin, Fri'ends of the Earth."
Since no reasonable notice was given nor good cause furnished for not having done so, the Licensing Board cannot be faulted for continuing to consider the Intervenors in default under 10 C.F.R. 52.707.
For this reason, the Staff believes that the Board correctly denied access to the security hearings and thus to the highly sensitive security plan and security devices in order to protect the plan itself and to keep the Intervenors and their counsel from 1/
"stepping in and out of a particular issue at will."-
D.
The Motion to Reo en The Appeal Hoard has stated that a party seeking to persuade an adjudicatory.
tribunal to reopen the record bears a heavy burden-to show a significant 2/
unresolved safety question.
While the security plan for Diablo is certainly significant, it has now been reviewed ty the Staff and the Licensing Hoard and thus is no longer unresolved or unreviewed.
In this regard, while Intervenors would have no way of knowing the state of the record since they waived their right to participate,
~su ra, the Staff notes that no specific new significant unreviewed matters or changed circumstances were mentioned in Intervenor's Motion to Reopen and thus no basis has been offered to alter the record as it currently exists regarding security.
1/ Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1
and 2
, ALAB-288, 2 NRC 390, 393 (September 17, 1975).
g2 Duke Power Com an (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4
NRC 6 9, 620 1976).
3/ Vermont Yankee Nuclear Power Cor (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520, 523 1973); reconsideration den.,
ALAB-'l41, 6 AEC 576 (1973).
Kansas Gas and Electric Com an (Wolf Creek Generating Station, Unit 1),
ALAB-462, 7
NRC 320, 338 978
Since Intervenors have not yet met their burden of showing that the security hearings must be reopened, Intervenors'otion to Reopen should be denied.
Conclusion For the reasons listed above, the NRC Staff believes that the Intervenors'anuary 19, 1979 letter has waived their right to participation in the security hearings by cross-examination and they have not shown good cause, furnished reasonable notice of their intent to participate in the security hearings, nor furnished any additional reason for the Licensing Board to allow them to participate in the security hearings.
Thus, that portion of their motion which in effect asks for a reconsideration of the Licensing Board's previous exclusion of them from the security hearings should be denied.
In addition, the NRC Staff believes that the Motion to Reopen must be denied for having failed to show a significant unreviewed safety item or changed circumstances which would satisfy their heavy burden of showing that the record must be reopened.
Respectfully submitted,
~Q Q~
L.
Dow Davis Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of June, 1979.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon Nuclear Power Plant,)
Units Nos.
1 and 2)
)
Docket Nos.
50-275 0.L.
50-323 O.L.
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF
RESPONSE
TO INTERVENORS'OTION TO REOPEN THE RECORD ON SECURITY PLAN MATTERS" dated June 28, 1979, 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 28th day of June, 1979.
- Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20555
- Mr. Glenn 0. Bright Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. William E. Martin Senior Ecologist Battelle Memorial'nstitute
- Columbus, Ohio 43201 Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company 77 Beale Street, Room 3127 San Francisco, California 94106 Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 Mrs.
Raye Fleming 1920 Mattie Road Shell Beach, California 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs. Sandra A. Silver 1760 Alisa 1 Street San Luis Obis po, Cal ifornia 93401 Mr. Gordon Silver-r'760 Alisal Street San Luis Obispo, California 93401 Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K
San
- Jose, California 95125
Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Yale I. Jones, Esq.
100 Van Ness Avenue 19th Floor San Francisco, California 94102 John R. Phil 1 ips, Es q.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 David F. Fleischaker, Esq.
1919 Pennsylvania
- Avenue, N.H.
Suite 501 Washington, D.
C.
20006 Arthur C. Gehr, Esq.
Snell 5 Wilmer 3 100 Valley Center Phoenix, Arizona 85073 Bruce Nor ton, Esq.
3216 North 3rd Street Suite 202 Phoenix, Arizona 85012
- Atomic Sa fety and'i cens ing Board Panel U. S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D.
C.
20555
~ Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 Janice E. Kerr, Esq.
Lawrence
(}. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas 8 Electric Company 77 Beale Street San Francisco, California 94106 Counsel for NRC Staff John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0.
Box 112 S an Luis Obispo, California 93406
DAVID S. FLEISCHAAR ATTORNEY AT LAW SVnE mao'919 PENNSYLVANIAAVE, N.W.
WASHNGTON, D.C.
20006 (202) 638-6070 June 14, 1979 CQRBESPQNDEgQP D'. B. Vassallo, Assistant. Director-for Light Water Reactors Division of Project Management.
U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Dear Mr. Vassallo:
It wasn't until June 13 - the day of the meeting - that we received notice of the meeting between the staff and utilities having construction permits and operating license applications pending.
Because of the late notification, I was not able to attend.
As you know, the Joint Intervenors in the Diablo Canyon licensing proceeding have conducted an active intervention.
We have a strong interest in the subject matter discussed at the June 13th meeting.
It is regretable that we were not notified of this meeting in a timely way.
Even if this meeting was noticed in the Federal Register, I assume that the staff took additional steps to assure that representatives from the utilities were notified of the time and date of the meeting.
Fairness requires that the Intervenors be given the same courtesy.
D.
B,. Vassallo, Assistant Director
~ June 14, 1979 Page Two I would like to.request a report on the discussions relating to (1) staff policies regarding the review of current construction permit and operating license applica-tions arid, (2) the criteria for establ'ishing priorities for the review of those applications.
In addition, I would like copies of any documents distributed at the meeting.
Thank you for your assistance.
Very truly yours, Lu,g ck~(~
David S. Fleischaker, Esq.
1919 Pennsylvania
- Avenue, N.W.
Suite 300 Washington, D.C.
20006 (202) 638-6070 John R. Phillips, Esq.
Steven Kristovich, Esq.
CENTER FOR LAW IN THE PUBLIC INTEREST 10203 Santa Monica Boulevard Los Angeles, California 90067 Attorneys For Joint-Intervenors SCENIC SHORLINE PRESERVATION CONFERENCES IN'AN LUIS OBISPO MOTHERS FOR PEACE ECOLOGY ACTION CLUB SANDRA A. SILVER JOHN J FORSTER June 14, 1979 cc:
All members of Certificate of* Service
UNITED STATES OF AMERICA DOCKETEO USHRC 8
JUN 12 1978 % ~
psst d W~.
~~a a~
~L NUCLEAR REGULATORY COMMISSION Before the Atomic Safet and Licensin Board Zn the Matter of
)
PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon Nuclear Power Plant Units 1 and 2)
)
Docket Numbers 50-275 O.L.
50-323 O.L.
MOTION TO REOPEN HEARINGS ON THE ADEQUACY OF THE DIABLO CANYON NUCLEAR POWER PLANT SECURITY PLAN
This motion concerns the attempts o'f Intervenor San Luis Obispo Mothers For Peace (SLOMFP) to participate in the ASLB hearing on the adequacy of the Diablo Canyon Nuclear Power Plant security plan
( 10 CFR part 73)
Said hearing was held February 12 and 13, 1979, outside presence of Intervenors'ounsel, despite an urgent, request by Intervenors'ounsel that he be allowed to participate.
The Licensing Board's barring of Intervenors'ounsel was improper.
PG and E and NRC staff have long objected to the disclosure of the Diablo Canyon security plan.
PG and E
and NRC staff have maintained that disclosure of the plan would be a breach of security; Intervenors have contended that the plan may not meet NRC regulations and will not work.
The Atomic Safety and Licensing Appeal Board in ALAB-410 (June 9,
1977) decided that the Diablo security plan was not classified (p.
6-S) and rejected PG, and E '
contention that the plan can be kept in its entirety out of the vie~ of all but PG and E and NRC employees (p. 6).
The Appeal Board also recognized in ALAB-410 the great value to public health and safety of intervenor participation in review of the adequacy of an applicant's security plan.
See
- also, Consolidated Edison Co. of New York (Indian Point/
Unit 2), ALAB-197 and 197R, 7 AEC 473,
- 826, on review, CLZ-74-23.
7 AEC 947, 949-50, on remand, ALA8-243, 8
AEC 850, 853-54 (1974).
The Appeal Board, in ALAB-410, also explicitly noted that participation by an intervenor's expert in Indian Point 2
"helped... in assuring that the (security) plan. eventually adopted for the plant was adequate."
(p.
9)
As Mr. Salzman stated in his additional comments to the Appeal Board's Memorandum in ALAB-410: "(C)onsiderable benefit b'e~'*h('yl plans which litigation engender s. " (p.
26)
Against this back'ground, these events took place leading to the result that the security plan hearing was held, on February 12 and 13, 1979, over the strong objections of Intervenors'ounsel, with Intervenors'ounsel excluded and no representative of any party other than NRC and PG and E
present:
(1)
Intervenor San Luis Obispo Mothers For Peace (SLOMFP),
attempted to qualify four individuals as experts for the purpose of examining and preparing a challenge to the security plan.
On August 29,
- 1977, SLOMFP petitioned, the Licensing Board to certify Dr. Douglas L. DeNike, holder of a doctoral degree in clinical psychology and a recognized exper on the psychology of human terrorist activities.
On November 3,
1977 the Board refused to certify Dr. DeNike.
On February 1,
- 1978, SLOMFP petitioned the Board to certify Dr. Bruce L. Welch, who had experience with military security plans and direct professional experience in the psychology of human terrorist. activities.
On February 1,
- 1978, the Board refused to certify Dr. Nelch.
On March 31,
- 1978, SLOMFP petitioned the Licensing Board to certify Mr. Richard Hubbard, who had expertise in nuclear quality engineering and sixteen years of experience in the nuclear industry.
On May ll, 1978 the Licensing Board refused to certify Mr. Hubbard.
On May 23,
- 1978, SLOMFP petitioned the Licensing Board to certify Mr. David Dinsmore
- Comey, who had previously reviewed nuclear power plant security plans, who had testified and cross-examined on these plans in NRC proceedings, and who had recognized expertise in the area of nuclear power plant sabotage.
On September 5, *1978, the Licensing Board refused to certify Mr. Comey. 'n September 22,
- 1978, SLOMFP appealed the Licensing Board's September 5 decision to the Appeal Board.
On October 27, 1978'he.
Appeal Board reversed the Licensing Board and remanded the matter of Mr. Comey's certification to the Licensing Board.
On November 3,
- 1978, the Licensing Board again refused to certify Mr. Comey.
SLOMFP on November 20,
- 1978, petitioned the Atomic Safety and Licensing Appeal Board for directed certification and review of the November 20 ruling.
On December 22, l978, the Appeal Board denied the SLOMFP petition.
On January 5,
- 1979, Mr. Comey was killed in an automobile accident in filisconsin.
(2)
On January 19,
- 1979, counsel for SLOMFP, Mr. Paul Valentine, responded to the Licensing Board as follows:
This Intervenor has been denied access to the security plan and has been denied the qualification of expert witnesses to review the plan, either for preparation for cross-examination or the presentation of affirmative evidence as to the inadequacy of the applicant s security plan.
Without the qualification of an expert witness to inspect the plan and advise Intervenors'ttorney, it is impossible for this Inter-venor to prepare, either'or significant cross examina-tion on the inadequacies of the applicant's security plan or to present affirmative evidence to support Intervenors'ontentions.
Therefore, this Intervenor will not be able to participate in the hearings now scheduled for the irst week of February as to the adequacy of the applicant's security plan.
(3)
The Licensing Board on February 8 and 9, 1979, received k
telegrams from Andrew Baldwin, an attorney representing
- SLOMFP, entering an apperance on behalf of SLOMFP and requesting to parti-cipate in the security system inspection and hearings then scheduled for February 12.
Xn discussions February 8 and 9, the Licensing Board refused the request, both as to participation in the security systems tour and as to participation in the hearing on the adequacy of the plan.
(Hearing transcript, 9103-9108, February 8, 9080-9099, February 9.)
The Licensing Board's reasoning was apparently based on the Board's interpretation of Mr. Valentine's January 19 letter as a withdrawal of the SLOMFP security contention (TR106).
The Licensing Board acknowledged that it had not entered an order withdrawing the contention (TR9105, 9106).
Mr. Baldwin appeared Monday, February 12, and argued to the Licensing Board that he be allowed to participate in the security systems tour and hearings on behalf of SLOMFP.
The Board again refused the request, stating as grounds for the denial that Mr. Valentine's January 19, 1979 letter was a "voluntary default" under 10 CFR 5 2.707
{TR 3968).
SLOMFP '
JANUARY 19 g
1979
RESPONSE
HAS NOT A REQUEST TO WITHDRAW SLOMFP
'S SECURITY CONTENTION.
The argument is simply made Mr. Valentin 's letter does not say that SLOMFP requests to withdraw its security contention.
It says:
this Intervenor will not be able to participate in the hearings now scheduled for the first week in February as to the adequacy of the applicant's security p2an."
y.
SLOMFP had decided as of January 19, 1979, not to participate in the February hearings.
No where at an/ time, directly or indirectly, in any document did SLOMFP ever indicate that it wished to withdraw its contention.
Withdrawal of SLOMFP's security contention would have been a different and much more drastic step than deciding not to participate in the hearings.
SLOMFP had substantial rights of appeal concerning the-security contention to the Appeal Board, the Nuclear Regulatory Commission, and the courts.
SLOMFP would have prejudiced these rights by withdrawing the security contention.
Had SLOMFP decided to take this drastic step and withdraw its security contention, it would have said so.
There was no statement, clear 'or unclear, of intent to withdraw.
- Therefore, SLOMFP moves this board for an order as follows:
1.
That 'the Diablo Canyon Nuclear Power Plant security plan be produced by PG and E for inspection by SLOMFP; 2.
That a discovery schedule be established to govern SLOMFP '
examination of the security plan; 3.
That hearings be scheduled to determine the adequacy of the security plan.
Respect ful1 submitted, W. Andrew Baldwin Attorney for Intervenor San Luis Obispo Mothers for Peace
I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safet and Licensin Board DOCXmn USKRC 8
JUN12 1978 g Once er So~
Doc4tby t Sonics In the Matter of
)
)
PACIFIC GAS AND ELECTRIC CO,
)
)
(Diablo Canyon Nuclear Power
)
- Plan, Units 1 and 2)
)
Docket Nos.
50-275 O.L.
50'-323 O.L.
CERTIFICATE OF SERVICE I hereby certify that the foregoing HOT O
ON THE ADE UACY OF THE DIABLO CANYON NUCLEAR POWER PL has been served as of thxs date by personal deli~cry or first class mail, postage
- prepaid, to the follo~ag:
INGS Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, CA 93401 Mrs.
Raye Fleming 1920 Mattie Rd Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 Nore Mesa Dr Santa Barbara, CA 93105 Mrs. Sandra Silver 1792 Conejo Ave Sah Luis Obispo, CA 93401 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Com.
Wa'shington, D.C.
20555 Mr. Glen O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Com.
Washington, D.C.
20555 John R. Phillips, Esp.
Simon Klevansky Zsq.
Margaret Blodgeth, Esp.
Center'for Law ~ the Public Interest.
10203 Santa Monica Dr.
Los Angeles, CA 90067 Janice E. Kerr Lawrence Q. Garcia California Public Utilities Commission 5246 State Building 350 McAllister St.
San Francisco, CA 94102 Atomic Safety an6 Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C 20555 Elizabeth S. Bo~ers, Chairman Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. William E. Martin Senior Ecologist.
Battelle Memorial Institute
- Columbus, OH 43201
David F. Fleischaker, Esq.
1025 15th Street, N.N.
5th Floor Washington, D.C.
20005 James R. Tourtellotte, Esq.
L.
Dow Davis, Esq.
Richard Goddard, Esq.
Lawrence Brenner, Esq.
Office of Executive Legal Director BETH 042 U.S. Nuclear Regulatory Commission Nashington, D.C.
20555 Philip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company 77 Beale Street Rm.
3127 San Francisco, CA 94106 Arthur C. Gehr, Esq.
Snell
& Wilmer
.-3100 Valley Center
- Phoenix, AZ 85073 Bruce Norton, Esq.
3216 North 3rd Street Suite 202
- Phoenix, AZ 85012 Paul C. Valentine Blase, Valentine
& Klein.
321 Lytton Ave.
Palo Alto, CA 94302 Dated:
8 179 By: Alanna Har tzok
(l
(Q The City of Santa Barbara, California P.Q. Drawer P-P Sa ta Barbara, Ca 93102 (808) 963-0611 b7gf David T. Shiffman Mayor June 7,
1979 Mr. Joseph M. Hendrie, Chairman United States Nuclear Regulatory Commission Washington, D.
C.
20555 c~+c I
we+
Dear Mr. Hendrie:
This letter is to inform you that the City Council of the City of Santa Barbara, California, at its regular meeting of June 5, 1979, took action to endorse and indicate its concurrence with a letter that has been sent to you, dated May 8, 1979, signed by David Yager, Chairman, Board of Supervisors, County of Santa Barbara.
Chairman Yager's letter requests that the Nuclear Regulatory Commission require an adequate Emergency
Response
Plan for Santa Barbara County in conjunction with the Diablo Canyon Nuclear Power Plant.
We urge your prompt attention to this matter and trust that this important subject will be dealt with in the very near future.
Sincer David hiffman Mayor cc:
B d of Sup visors nvironmental Defense Center City Administrator/Clerk City Council
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1&y 8, 1979 Mr.'owp'z )1. Her:e, Ci~mznan Unita9. S~stes Mxcl~n Be dilatory Go)mission
%Tash'=~+ma, D.C.
20555
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Dear I:
- r. HmQrie, As a d> -ect result of t'.Ie nuclear ac ident a" the Tme f.UZe Island per,'er plant near I~nish"~, Pa.,
l; stro. gly urge your favorable consideration of the folic:ring propose.
The h,uclear P~>ad)ig Corniission shout t.itQ; hold its fir="I decision on the Opia~ P~t for Diablo Catnyon hb~clear Pot~ Pi~~" in Califo.=: u-.ml the applicant has prepared an ad~ate-Eargency Pesthouse Plan or Santa Barbara County.
Fu~~w r the Cracy of this plan should b det~~iaed by Che >pc folio'Iing lo~G p>>lie hearings.
Finally, t.'".~ cost o prepping the plan s~>auld be born by the Gpplican,".
Pacif'c C=s
~~cd >~~mic~
.y-One 3.esson o
the Tareo l'~le Island nuclear accident is clear; the ultii",ate responsibiliC'or pro~ion of the d. e ~ed popul-".Cions during a nuclea=
crisis lies ~i"c t'.e local govern".~~ts '".w-lv+.
QQy local govt;ants hav;.
Cim d
~~>3.=-~ f~rledge t;Qich can id~~~ti y feasible plans for evacuaHan relo-
- cation,
=.e"g~.~g I;Mmca1 a'd and oC'~ n~ssi6.es for their p-Irticul"-"co~
r~mties
~-) ~~s of. e)-,ergency.
)=,e do PIC believe, her'eve-, that the L~wen of cost to pre~m such plans reasor&ly lies "&D lccal govern~its lpga".hw~
it lies ~ri~~ tne applic~~t in this case Pacific Gas and Electric Co~~y, ~'ho at. least ra-t ass)
>a the finan ial burt~ms along wik the financial rewards for its plan". If the aoplicaCion for Diablo Caw;on had been intrn1~>
sex.ent u eith " "'".
N tio".M Bwiroz;metal Po'icy E'~~ of 1969I o-tb Califo~'n Fnviror~>~am Quali~g Pat of 1972, t3"m is no doub" at PGSE cauld have been rcauired to p=y for such ~gency reset~ plans.
'ignis t.auld have cc~M du"ing the course o enviromntal revic~~ as a potion of the i:IiU.gaLion r~asures r~~red o a project which has t¹ po~".tial to significantly affect the envi-ron." o" ~se ha ard-Co the safeLg of hen populations.
Clearlyr th cost of nitigati':~ plans s ch as these should be born by the applic~nC.
Santa. D:tr..""a CounCy does noC have an F;.erg'~
I~nsponse Plan fot. a nuclezc acci&~C at Diablo Canyon, nor does it have contingent~
plans for, hazardous
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t 1
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P'
'nuclear ra==-ial transport accichnts on County roads anl rai1xoads. It is un"Ni;8;Ql= ".'"zt th bK would grant final approval for.Diablo Canyon >;ith-oat firs" b".i'aptain tlat adequate
- e. "gency plan" e>~st for the p ople facing s~'-io~ risks fra~ nuclm acc'cuts at this plan~.
A plan should b develop='.~~~ately.
The adequacy of the plan should be dete~& by the KRC afte" s "~&le time for local public hm~s.
Such herings should allo.~
for ccrY "." =-".d reviaw by local juri di~ons, and arrple tie should b pro-
, v.'.decl fo" --.;. necessary revisions and thomas+ dissertation of t¹ plan to citizens o= Santa Barbara County.
~in Thre lle Island incident sh~ us that ~~- catastrophic nuclear acci&mts are possible even within a plant on stable ground not subject to seianic rove~at.
3 e in California fac'an aQditio~ ris!c of nuclear accid ~t because of the close pror~vity of th Diablo Canyon plant to the active Pe~i fault co.-,ala::.
This ~~'tional risk m~'-es ir.~ative the neB for a sou<
Brergency P~sponse Plan for Californians livingdc~i~ and do'zcurrz~t of th plant.
Since you wi11 be dec'~ showy whether or not to grant PGCH the operating license io D ablo Canyo LI dB xeccKF r that you initiate 3 w'KUrltely a request to PG~ to s~'t its proposal for work scope and tUr franc for preoption of an Brerg~z~
Responds Plan for residents of Santa Barbara Comty dur ng a possible nuc3.e~- accido~t at Diablo Cvyon ~~!uclear Pn'm Plant.
Tne vQ'k scope sho
~d includ the folio.sing:
l.
An evacuation plan, 2.
P"oposals fo me erological aM radio3.optical erexgency ronitoring p 0~re"'iis I 3.
A program to identi y both oceanic current aM agricul~al produc conhzination,
- 4. Su'>le plar~g for relccat'on +xi provision of e agency shelt food a..~ rcdical aid,
'5.
A con+~~go".~r plan for hanQ;i".g haz~~"dous nuclear reterial and trans-
'~ accid~~ts within the Cour."y.
fu~>= r~=zost
" "R. aller.i a Sanm Barbra County Task Fore to review PG~~'s prowsed s;-=< p~aa for its ac~cy, c~Q act in aa adviso~
capacity u=-n P'.=~ as it is developed.
T~c you for y~w~- att~wtion to this ra>t serious matm.
Ver txul~~ yours,
'avid Yac"~
<+p '-'.
EDQxd of.)u~~.vlsors