ML16340B290
| ML16340B290 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/23/1980 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8012300065 | |
| Download: ML16340B290 (22) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 12/23/80 C7 fly
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~CO wB aa7 tC IB 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 GOVERNOR BROWN'S MOTION TO STAY PROCEEDING I.
INTRODUCTION On December 8,
- 1980, Governor Edmund G. Brown, Jr. filed a motion with this Board requesting a
stay of further proceedings on Pacific Gas and Electric Company's motion pursuant to 10 C.F.R 5 50.57(c) for a fuel load and low power test authorization.
The Governor's motion is based on an argu-ment that an environmental impact statement should be prepared pursuant to 10 C.F.R. 55 51.5(b)(3), 51.5(c)(1) and 51.7.
The Governor's motion fails to address 10 C.F.R. 5 2.788 which sets forth the requirements for stay requests.
The Governor fails to address prior decisions of the courts and this agency which have specifically addressed the matter which the Governor seeks to raise.
Further, the Governor fails to address any of the Commis-sion's requirements for tardy filings. Consequently, the NRC Staff the Governor's motion as procedurally and substantively defective.
opposesps+7
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4 II.
DISCUSSION A. ~kd The Final Environmental Impact Statement for the Diablo Canyon Nuclear Generating Station was issued in May 1973.
An Addendum to the FES was prepared and published in May 1976.
Following environmental hearings and contested
- hearings, this Licensing Board issued a Partial Initial Decision on environmental matters in 1978.
[LBP-78-19, 7
NRC 989 (1978).]
The State of California (Public Utilities Commission) submitted comments on the envir-r onmental statement and was a party to the proceeding pursuant to the pro-visions of 10 C.F.R. 5 2.714.
[7 NRC 989, 992. j The Governor petitioned to be admitted as an interested state pursuant to 10 C.F.R. 5 2.715(c) on October 15, 1979, four months after the Board's decision on environmental issues.
This Board granted the Governor's motion to participate as an "interested state" but cautioned that the Governor was expected to take the proceeding as he finds it. [Board Order dated November 16, 1979.]
On July 14,
- 1980, PG&E filed a motion for fuel loading and low power testing with the Board.
Following responses to the motion from the parties and the Governor (Answer and Opposition of Governor Edmund G. Brown, Jr.,
dated August 4, 1980) the Board called for additional responses in an Order dated August 14, 1980.
The Governor responded on September ll, 1980. After considering responses from the Governor and the parties, the Board issued a
"Order Relative to PG&E's Motion for Low Power Testing" indicating that it would proceed on the motion.
Throughout the process of responding to the PG&E's motion the Governor was silent concerning any argument that the FES for Diablo provided an
3 insufficient environmental evaluation for considering a motion of fuel load and low power test authorization.
- Rather, the first time the Governor raises such a position is in the form of a statement of subjects on which he wishes to participate dated December 3,
1980.
At no time has the Governor ad-dressed the line of decisions concerning low power test authorizations identified by the Staff in its filings of August 6, 1980 and September 25, 1980.
B.
The Governor Fails To Address Sta Re uirements The Governor has not addressed the showings in 10 C.F.R. 5 2;788 required of persons seeking stays even, though there are decisions of long standing requiring such showings. Directly applicable to the Governor's motion is Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671 (1975).
That decision clearly holds that the Vir i nia Petroleum Jobbers rule incorporated into 5 2.788(e) applies not only to stays of Licensing Board decisions but also to stays of board pro-ceedings in general.
Consequently, the Governor's motion fails as a matter of law since it does not show:
(1) a likelihood of prevai ling on the merits; H
(2) irreparable injury to the Governor if a stay is not granted; (3) that a
stay would not harm other parties; and (4) that the public interest favors a
stay.
It is obvious that there is no basis for the stay motion in fact or law. The Governor can not prevail on the first factor since a full envir-oreental record has been compiled.
The Final Envirormental decisions have already been made on the record for the Diablo Canyon facility and the Governor is required to take that record as he finds it. Since the Governor
.0 w
has not attempted to address the substantive findings on environmental matters it follows that nothing in his motion would support a fi'nding that he is likely to prevail on the merits.
The Governor completely ignores the I
fact that the environmental impacts for a full-power, full-term license fu11y embrace the impacts attributable to low-power authorization.
On the second factor, irreparable injury to the Governor if a stay is not granted, the Governor's motion is silent.
No irreparable injury to the Governor's interest is immediately apparent.
The injury of greatest concern to the Governor seems to be the risk that the facility would have to be decontaminated in the event a full-term license is not issued.
This, of
- course, is not an irreparable injury since the.Governor states the issue to be what the "... terms and conditions under which to decommission the facil-ity and (Motion ensure satisfactory safety and safeguards for the future" will be.
- p. 5.)
The very statement of the issue implies that the injury, alleged by the Governor is not irreparable.
On the third factor, it is evident that a stay would substantially harm PG&E since it would defer even longer the time when the Diablo facility is available to generate power.
Absent a strong showing on any of the first three factors, it is clear that the public interest does not favor the issuance of a stay.
The issues have long been defined in this proceeding, safety and environmental hearings have been completed, and it is time to reach decisions on PGIFE's appli-
~,
cation.
Consequently, the public interest requires a denial of the Gover-nor's motion.
Since the factual underpinnings of the environmental decisions in this proceeding cannot be challenged, the Governor attempts to fashion a legal argument to force a
new forum in which to reopen the environmental record.
To do so,
- however, the Governor must of necessity ignore the prior decisions of law gover'ning this agency's proceedings.
C.
Prior Decisions Are Dis ositive In its previous filings in response to PGSE's motion for fuel load and low power test authorization, the NRC Staff has pointed to NRC decisions authorizing activities pursuant to 10 C. F.R.
5 50.57(c).
(See,"NRC Staff
Response
to Licensing Board's Order for Supplemental Positions on PGSE's Motion for Low Power Testing", dated September 25,
- 1980,
- n. 5, p.4.) The Governor continues to ignore these decisions in his filings.
The linchpin of the Governor's argument is that the prior environmental decisions in this proceeding are flawed because no specific consideration was given to the environmental consequences and related costs and benefits of an alternative case where the Commission authorizes low power testing but later denies the full power license.
It is clear from decisions of the Commission and the courts that an adequate environmental impact statement for full-power authorizations includes the lesser impacts attendant to low-power authorizations.
In making a contrary argument, the Governor ig-
nores a decision of the U.S. Court of Appeals for the District of Columbia Circuit which specifically stated that a
FES for full rated power, full-term licensing was not defective because it did not include a discussion of the issuance of an operating license for less than full-rated power as an alter-native to full-power, full-term licensing.
Citizens For Safe Power v.
- NRC, 524 F.2d 1291,1301 (D.C. Cir. 1975).]
The court quoted with approval a
decision by the Appeal Board rejecting an argument like the Governor'.
The Appeal Board in that case had pointed out that such an argument "...ignore[s3 the fact that licenses issued by the Commission are always subject to revo-cation or. modification in light of subsequently developed data." [Id.,
- p. 1301, n.
- 17. 3 The Governor provides no argument or other basis for the novel proposition that a full EIS should not be deemed to bound lessor impacts nor does he explain why the possibility that a full-term license may not be granted is different from other situations such as the risk of modi-fication, suspension, or revocation which is likewise possible for every license but which does not require special treatment in the FES for a facil-ity. The above cited line of decisions has been consistently applied in Commission proceedings.
The Governor attempts to bolster his argument by citing general admin-istrative doctrine to the effect that an agency must comply with its own regulations.
(Motion p. 3.)
The argument by implication is that Part 51 of the Commission's regulations require either a separate environmental impact statement or an environmental impact appraisal before low power author-ization can be approved.
In a case involving seismic design reconsideration
7 w
another Licensing Board noted "There is nothing that would indicate that interim operation would involve environmental impacts other than those previously considered and evaluated in the prior initial decisions.
Con-sequently, we find that authorization of interim operation does not require the preparation and issuance of either an environmental impact statement or an environmental impact appraisal and negative declaration pursuant to 10 C.F.R. 51.5(b) and (c)."
Portland General Electric Co.
(Trojan Nuclear Plant),
LBP-78-40, 8 NRC 717, 744 (1978); affirmed, ALAB-534, 9 NRC 287 I
(1979).]
Absent some showing that the activities PGSE seeks to have author-ized involve impacts other than those previously considered and evaluated in prior decisions the Licensing Board is not authorized to embark on a fresh assessment of environmental issues which have already been thoroughly con-sidered and decided.
Geor ia Power Co. (Vogtle Units 1
8 2), ALAB-291, 2 NRC 494 (1975); Detroit Edison Co.
(Enrico Fermi Unit 2), LBP-78-11, 7
NRC 381,393 (1978); Northern States Power Co.; (Prairie Island Units 1
5 2),
ALAB-455, 7 NRC 41, 46, n.
4 (1978).]
The Governor makes no attempt to address the Commission and Court decisions which speak directly to his point, much less attempt to dis-tinguish them.
In the circumstances it is clear the Governor's motion to stay has no legal basis and should be denied.
D.
The Governor's Ob ection Is Late NEPA requires full disclosure of environmental impacts.
Obviously, the FES for Diablo Canyon has done just that.
It has provided a full discussion
of all significant impacts expected during the course of the lifetime of the Diablo facility.
The FES was issued early in the decision-making process so that public participation and discussion could be maximized.
Now, the Governor comes into the proceeding late and attempts to reopen the record on issues he had an early and effective opportunity to raise.
This effort should be rejected.
The time for raising the objections which the Governor now proffers was at the time the draft environmental statements were cir-culated for comment.
A review of comments on the Diablo statements reveals that no such comments were offered.
The provisions of 10 C.F.R. 5 50.57(c) were a part of the Commission's licensing procedures long before the FES was issued on this docket and as noted above the issue sought to be raised here by the Governor had been put forth by other parties in other proceedings on many different occasions.
Thus, the Governor cannot be heard to say that it was not reasonable to have contemplated that PGSE might seek authorization for fuel load and low power operation in advance of receiving full power authorization.
Consequently, the objections the Governor now seeks to raise could have been put forward much earlier in the process.
Since the Governor must take the proceeding as he finds it, he is bound by the environmental record and can not be heard to object at this late date.
Even if the Governor's motion for stay were a proper response to PGSE's motion for low power authorization, it is late.
The Governor attempts to bootstrap his latest objection by filing it as a part of the statement of subjects on which he will participate.
(See Governor's filing of December 3, I
1980.)
He then follows with a motion to stay proceeding filed on December
- 8, 1980m The time for the Governor to have filed such a motion was in response to the Applicant's original motion in July.
A review of the Gover-nor's responses to the PGSE's motion at that time reveals no statement which would indicate that the Governor had any concern about the adequacy of the envi roreental record in this proceeding as a predicate for the low power authorization which PG&E sought.
The Governor does not address any of the Commission requirements for late filings and his motion should be denied on this alternate ground as r
wel l.
III.
CONCLUSION The Governor's motion for stay of proceeding fails to address the legal requirements for a stay motion, fails to address prior court and Commission precedents directly contrary to the position stated by the Governor, and fails to explain why it is being filed so late in the course of this pro-ceeding.
Consequently, the Governor's motion should be denied.
Respectfully Submitted,
~Ma Milliam J.
mstead Counsel for the NRC Staff Dated at Bethesda, Maryland This 23th day of December 1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMiIC 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.
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF
RESPONSE
TO GOVERNOR.BROWN'S MOTION TQ STAY PROCEEDING" 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 23th day of December, 1980:
- 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. Jerry Kline Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 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 Alisal Street San Luis Obispo, California 93401 Mr. Gordon Silver 1760 Alisal Street San Luis Obispo, California 93401 Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K
San Jose, California 95125 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105
Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Harry M. Willis Seymour
& Willis 601 California, Street, Suite 2100..
San Francisco, California 94108 John R. Phillips, Esq.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Marion P. Johnston, Esq.
Joel
- Reynolds, Esq.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Arthur C. Gehr, Esq.
Snell
& Wilmer 3100 Valley Center Phoenix, Arizona 85073 Janice E. Kerr, Esq.
Lawrence g. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific,Gas
& Electric Company 77 Beale Street San Francisco, California 94106 John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0. Box 112 San Luis Obispo, California 93406 Bruce Norton, Esq.
3216 North 3rd Street Suite 300 Phoenix, Arizona 85012 Davis S. Fleischaker, Esq.
Suite 709 1735 Eye Street, N.W.
Washington, D.C.
20006 Byron S. Georgiou Legal Affairs Secretary Governor's Offiie State Capitol Sacramento, California 95814 Herbert H. Brown HILL, CHRISTOPHER
& PHILLIPS, P.
C.
1900 M Street, N.W.
Washington, D.C.
20036 Richard E. 'Blankenburg, Co-publisher Wayne A. Soroyan, News Reporter South County Publishing Company P. 0.
Box 460 Arroyo Grande, California 93420
<<Atomic Safety and Licensing 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
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing
& Service Br.
Washington, D.C.
20555 sam mstea Counsel for NRC Staff
0 HO