ML16340B510
| ML16340B510 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/18/1981 |
| From: | Bradley Jones, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8103200050 | |
| Download: ML16340B510 (60) | |
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 Unit Nos.
1 and 2)
Docket Nos ~56=.2T~
O.L.
NRC
RESPONSE
TO THE REQUEST OF PACIFIC GAS AND ELECTRIC COMPANY FOR 'IRECTED 'ERTIFICATION g g(g/(p Itggg Milliam J.
Olmstead Assistant Chief Hearing Counsel Bradley ll. Jones Counsel for NRC Staff March 18, 1981
+5@ /
S 8(
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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
RESPONSE
TO THE RE(VEST OF PACIFIC GAS AND ELECTRIC COMPANY FOR DIRECTED CERTIFICATION Hilliam J.
Olmstead Assistant Chief Hearing Counsel Bradley W. Jones Counsel for NRC Staff March 18, 1981
TABLE OF CONTENTS I.
INTRODUCTION II.
DISCUSSION A.
Background
B.
Licensing Board Ruling III.
POSSIBLE OPTIONS IV.
CONCLUSION
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Pacae
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7 14 19
TABL'E OF AUTHORITIES Statutes and Re ulations Cited Pacae 5 1.11 5 1.12 10 C.F.R. 10 C.F.R.
10 C.F.R. 10 C.F.R.
10 C.F.R. 10 C.F.R.
10 C.F.R. 5 2.714(a) (1) 5 2.718(i)
S 2.760(a)
S 2.760(b 5 2.721.
10 C.F.R. 5 2.785.
5 U.S.C.'S 554(d).
U.S.C.
S 557(b
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,9,12,13 14
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. 16,19 18 18 16
. 16;19 Commission Decisions CASES Consolidated Edison Company of New York, Inc.
(Indian Point Units 1-3), CLI-75-8, 2 NRC 173 (1975)
Metropolitan Edison Company (Three Mile Island, Unit 1), CLI-79-8, 10 NRC 141 (1979).......
14 Niagara Mohawk Power Corporation (Nine Mile Point, Unit 2), CLI-73-28, 6 AEC 995 (1973).....;..
2 Power Reactor. Development Corp.,
1 AEC 65 (1959)............
15 Public Service Company of New Hampshire, et.al.
(Seabrook Units 1 and 2), CL'I-77-8, 5
NRC 503 (1977).........
2 Toledo Edison Company, et al.
(Davis-Besse Nuclear Power Station}, 4 AEC 801 (1972).......
United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant}, CLI-76-13, 4 NRC 67 (1976)
Washington Public Power Supply System (WPPSS Units 3
& 5)
CLI-77-11, 5
NRC 719 (1977)
Atomic Safet and Licensin A
eal Board Decisions Kansas City Gas
& Electric Co., et.al.
(Wolf Creek Generating Station, Unit 1}, ALAS-462, 7 NRC 320 (1978}
17 Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1
and 2}, ALAB-580, ll NRC 227 (1980}
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Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, ll NRC 876 (1980)
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10 Hiscel laneou s NUREG-0694 NUREG-0737 Diablo Canyon SER Diablo Canyon
- SER, Supplement 10 Diablo Canyon
- SER, Supplement 12
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5 "Statement of Policy; Further Commission Guidance Reactor Licenses" CLI-80-42 (1980(....
for Power 5,8,9,11,13,14
t
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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
RESPONSE
TO THE REQUEST OF PACIFIC GAS AND ELECTRIC COMPANY FOR DIRECTED CERTIFICATION I.
INTRODUCTION On February 26, 1981, Pacific Gas and Electric Company (PGSE) filed a request for Directed Certification with the Commission with respect to the Licensing Board's Ruling of February 13, 1981.
The NRC Staff had earlier filed on February 23, 1981 a Request for Directed Certification which urged the Commission, on the basis of the record before the Licensing Board, to determine which, if any, of the Joint Intervenors'ontentions-should be litigated prior to ruling on PGSE's motion for fuel load and low power test author ization.
Without commenting on the Staff's request, PGSE chose to file its separate
- request, which goes beyond procedurally requesting certification and proposes various options for the Commission to consider, both for the fuel load and low power authorization and for the full power license.
Consequently, the Staff is responding to the matters of substance raised in PGSE's request and is addressing options for Commission action on both the low power and full power license applications.
1/
The Staff's Request for Directed Certification is supported by Joint Intervenors and Governor Brown.
The Staff continues to believe that the course recommended in its Request for Directed Certification is one which would remove unnecessary delay from the low-power proceeding by prompt resolution of the dispute surrounding the Commission's interpretation of its policy statement.
If the Commission grants certification as urged by the Staff, the Staff believes that the record below supports reversal of the Licensing Board's ruling admitting contentions.
The Staff did not present the substantive arguments contained in the record below in its request for certification, choosing instead to await Commission action on the certification request.
Now that PGSE has raised substantive arguments on the application of the policy statement, the Staff is responding in order to set forth its position on those matters, which differs in certain respects from PG&E's position although in this instance arriving at a similar result.
The Commission's inherent supervisory authority over the conduct of adjudicatory proceedings empowers it to step into a proceeding and provide guidance on important issues of law or policy.
See
~e...
Public Service Com an of New Ham shire, et al.
(Seabrook Units 1 and 2),
CLI-77-8, 5
NRC 503, 516-517 (1977); United States Ener Research and Develo ment Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4
NRC 67, 75-76 (1976); Consolidated Edison Com an of New York Inc.
(Indian Point Units 1-3), CLI-75-8, 2
NRC 173, 175 (1975);
and ~Nia ara Mohawk Power Cor oration (Nine Mile Point Unit 2), CLI-73-28, 6 AEC 995 (1973).
The Commission has a wide range of possible options in this proceeding in light of its inherent supervisory authority.
Choices from this range of options depends in the first instance on what action the
Commission chooses to take on the Licensing Board's interpretation of the Commission's Policy Statement which resulted in the admission of conten-tions on PGSE's motion for fuel load and low power test authorization.
If the Commission decides to grant the Staff's request for directed certification and then reverses the Licensing Board's rulings admitting contentions, the Staff believes the best'option is for the Commission to direct the Licensing Board to issue its decision on PGSE's motion for fuel load and low power test authorization by a specified date with provision for immediate Commission review of that decision.
The Commission has authority to so direct the Licensing Board and has exercised that authority previously.
On the other hand, should the Commission not grant the Staff's certification request, or if the request is granted but ultimately does not reverse the Licensing Board's rulings admitting contentions, there are other options available to the Commission with regard to the low power proceeding.
Independent of the possible options for the low power proceeding, similar options are available to the Commission for the full power proceeding.
Many of these options would require the Commission to involve itself either in the taking of evidence or the rendering of intial decisions or both.
Only the Commission is in a position to evaluate whether it has the time and resources to devote to such undertakings in an attempt to expedite the proceeding in accord with applicable procedural requirements.
See Toledo E ison Company et al.
(Oavis-Besse Nuclear Power Station) 4 AEC 801, 802 (1972).
4 Timely Commission action on the Staff's request for directed certification is needed as a practical matter to avoid additional serious impacts on both the low power and the already prolonged full power proceedings.
For the Commission's information, the Staff will summarize the procedural background first, state its view concerning how the Licensing Board erred in interpreting and applying the Commission's Revised Policy Statement and conclude by discussing the procedural and practical considerations associated with the options suggested by PG&E's request.
II.
DISCUSSION B.
~dk d
It is important to keep three key procedural aspects of this proceeding in mind.
First, the Diablo Canyon proceeding is a contested operating license proceeding which commenced after applications were docketed in 1973.
The Licensing Board completed all required hearings in February 1979 and closed the evidentiary record on March 12, 1979.
. The Licensing Board resolved some of the safety issues in a Partial Initial Decision issued September 27, 1979.
Decision on other issues was deferred pending receipt of the Staff's report on TMI-related matters.
- Second, following appeal of the Licensing Board's September 1979 decision, the Appeal Board reopened the record on two issues:
the adequacy of the PG&E security plan and the effect, if any, of the new information concerning near field accelerations arising from the 1979 Imperial Valley Earthquake on the seismic design testimony in the record.
Third, Joint Intervenors filed a motion to reopen the record on the environmental consequences of Class-9 accidents and emergency planning in i~1ay 1979.
The Joint Inter venors
based their motion on the ground that the TMI-accident had rendered the previous record inadequate.
The Licensing Board deferred ruling on the motion until it had received and considered the Staff's report on the implications of TMI with respect to the Diablo record.
It is this third procedural matter which is the subject of the current requests for directed certification.
It is also the aspect of the proceeding to which the Commission s Revised Policy Statement directly applies.
The Licensing Board issued an Order dated June 5, 1979 deferring its ruling on Joint Intervenors'otion to reopen the proceeding on "Class 9" and emergency planning issues until it received the Staff's report on the effects of the.Three Mile Island accident on the Diablo Canyon operating license application.
A year later, the Nuclear Regulatory Commission issued a "Statement of Policy for Further Commission Guidance for Power Reactor Operating Licenses" dated June 20, 1980.
That policy statement referenced a document dated June 1980 entitled "TMI-Related Requirements for New Operating Licenses" (NUREG-0694).
NUREG-0694 was subsequently superseded and clarified by NUREG-0737.
SER Supplement Number 10 issued in August 1980 serves as the Staff's report on the effects of the THI accident on the Diablo Canyon fuel load and low power test operating license application.
(On March 4, 1981 Supplement 12 was issued updating Supplement 10 to account for NUREG-0737.)
On December 18, 1980, the Com-mission issued a revised "Statement of Policy; Further Commission Guidance for Power Reactor Operating Licenses" (CLI-80-42) (hereinafter Revised Policy Statement) which announced the Commission's approval of NUREG-0737, "Clarification of TMI Action Plan Requirements."
On July 14,
- 1980, PGSE filed a motion before the Atomic Safety and Licensing Board (ASLB) requesting authorization for fuel loading and low power testing.
The ASLB issued an Order Relative to PGSE's Motion for Low Power Testing on October 2, 1980 which stated that minimal require-ments have been met to commence the proceeding.
In December of 1980, Joint Intervenors filed contentions and Governor Brown (who was allowed in the proceeding on November 16, 1979 as an interested state after the record had closed) filed a list of "subjects" on which he desired to participate.
The Applicant and.Staff filed responses, and a two-day pre-hearing conference was held on January 28 and 29, 1981, in which the con-tentions and "subjects" were discussed.
At the prehearing conference, before the Board dealt in detail with the positions of the parties with regard to the contentions and "subjects",
a related matter was considered.
On December 8, 1980, Governor Brown filed a motion to stay the proceeding pending preparation of an environmental impact statement (or alternatively an appraisal) dealing with fuel loading, testing and low power operation.
The motion was supported by Joint Intervenors on December 18, 1980 and opposed by Applicant and Staff since the motion did not address the criteria for a stay.
After the motion was argued, the ASLB orally denied the motion. After considering 3/
the contentions and "subjects",
the ASLB issued a Prehearing Conference Q3 The Governor in his response to the Staff's Motion for Directed Certification also seeks Commission review of the Licensing Board order denying his stay request.
Should the Commission decide to direct certification, the Staff would oppose a stay on the basis argued in its papers before the Licensing Board and stated in the Board's order denying the Govenor's request for stay.
Order on February 13, 1981.
In that Order the Licensing Board admitted 5
contentions~
and 3 subjects deferred ruling on the "Class 9"
4/
5/
contention pending the Appeal Board's ruling on seismic
- issues, and deferred ruling on two contentions which presented "legal" rather than "factual" issues.
J The remaining contentions and subjects were denied or withdrawn.
These contentions and subjects were set out in detail in the Licensing Board Prehearing Conference order.
i The parties stipulated at the Prehearing Conference that, absent action by the Commission directing otherwise, the Licensing Board should not issue any ruling until the Appeal Board has ruled on the seismic issues pending before it. (Tr. at 157-160).8/
B.
Licensin Board's Rulin s The Staff stated in its Request for Directed Certification that there are now four differing interpretations of the Commission's Revised The five a mitted contentions are:
Contentions 4
8 5 (Emergency Planning),
Contention 11 (Pressurizer heaters),
Contention 13 (Mater level indicator) and Contention 24 (Relief and Safety valve testing).
Q5 The three admitted subjects are: Subject 3 (Emergency Planning),
Subject 13 (water level indicator),
and Subject 14 (Relief and Safety valve testing).
Q6 The deferred contentions are:
Contention 1
8 2 (legal arguments) and Contention 19 (Class 9).
+7 The denied contentions were Nos. 3,6,7,8,9,10,12,14,15,16,17,18,20, 21,23.
The denied subjects were Nos. 4,5,6,7,8,9,10,11,12,15,16,17.
The withdrawn contentions were Nos. 22,25,26,27,.
The subjects withdrawn were Nos.
1 and 2.
8/
The evidentiary hearing on seismic issues before the Appeal Board was concluded on October 25, 1980 and the parties'indings and reply findings were completed in February 1981.
The matter is now before the Appeal Board for decision.
Policy Statement on this docket.
PGKE discusses its interpretation of that Statement in its Request for Directed Certification and urges the Commission to adopt it.
Since the various interpretations are on the record below, the Staff deliberately chose not to brief the substance of its position again in its request to the Commission for Directed Certification.
In particular, the proper application of the policy statement to the contentions ruled on by the Licensing Board was not addressed.
Nevertheless, now that PGSE has raised these substantive
- matters, the Staff believes that it should now articulate its position and state how it differs from PGSE's position and that of the Licensing Board.
The Staff believes that the Licensing Board erred in its inter-pretation of the Revised Policy Statement and in its rulings admitting contentions.
Consequently, the Commission should reverse that ruling.
Pursuant to the Commission's Revised Policy Statement, there are potentially two possible types of contentions in the Diablo low power proceeding.
They are (1) previously admitted contentions and (2) new contentions.
None of the contentions and subjects submitted were previously admitted contentions.
The Commission clearly indicated in its Revised Policy statement that where the time for filing contentions has expired no new TMI contentions should be accepted absent a showing of good cause and compliance with 10 CFR 5 2.714(a)(1).+
Therefore, with 9/
The Commission stated:
"The Commission believes that where the time for filing contentions has expired in a given case, no new TMI-related contentions should be accepted absent a showing of good cause and balancing of the factors in 10 C.F.R. 5 2.714(a)(l).
The Commission expects adher-ence to its regulations in this regard.
Also, present standards governing the reopening of hearing records to consider new evidence on TMI-related issues shall be adhered to..."
Revised Policy Statement.
- p. 8-9 of Slip opinion.
respect to the second category of contentions identified above, Joint Intervenors and Governor Brown should have been required to comply with 10 CFR 3 2.714(a)(1).~
The Revised Policy statement does not exempt 10/
them from that requirement.
10 CFR 5 2.714(a)(1) requires that a person desiring to have a late filed contention admitted must make a filing setting out:
(i)
Good cause, if any, for failure to file on time.
t (ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v)
The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R. 5 2.714(a)(l),
The Joint Intervenors and Governor Brown have not addressed
.the above requirements in any of their submittals to the Licensing Board.
While good cause for late filing may be present due to TtlI for some of the contentions and subjects, no demonstration has been made of the 11/
last 4 requirements above.
10/
Kansas City Gas 8 Electric Co. et al. (Wolf Creek Generating Station, Unit 1) ALAB-462, 7 NRC 320, 338 (1978).
ll/ Governor Browns'ubjects 4,5,6,7,8,9,10,11,12,15,16 and 17 do not appear to be related to the Three Nile Island accident.
Joint Intervenors Contentions 1,2,3,9,10, and 12 do not appear to be related to the THI accident.
For these contentions and subects the
,proponents must still show the first requirement for late filing-good cause for the lateness.
In the Diablo Proceeding the record of the hearing on the previously admitted contentions has been closed.~
Therefore, contentions must meet the requirements for reopening the record.
The proponent of the motion to reopen the record has a heavy burden.
He must show both signifi-cant new information and that the information would have caused a different result if it had been considered originally.~
This requirement for reopening applies to both new contentions and previously filed contentions.
For each contention which reaches the point of being considered as a
possible subject for reopening the record, there are two possible lines of inquiry in the Diablo proceeding.
One branch of inquiry concerns contentions which relate to THI issues.
The second branch relates to contentions which raise non-THI issues. With respect to THI-related
- issues, even if it is conceded that the information arising from THI and NUREG-0737 amounts to the significant new information satisfying the first requirement for reopening a record, this does not end the inquiry on the THI-related issues.
The Joint Intervenors and Governor Brown must still meet the second requirement for reopening a record.
That is, they 12/
The record on all issues was closed prior to the THI accident.
The Appeal Board directed a
de novo review of PGSE's security plan.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227
( 1980).
On June 24, 1980 the Appeal Board directed the seismic hearings be reopened.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876 (1980).
The hearings ordered by the Appeal Board have been concluded and the matters are still pending before the Appeal Board.
13/
The Staff notes that, since Governor Brown was not a party to the original proceeding, all his subjects fall into the category of late filed contentions not previously admitted.
~14 Footnote "ll" lists those contentions which are not related to THI.
must demonstrate that the new information would have resulted in a
different result if originally considered.
The Joint Intervenors and Governor Brown have not addressed this standard at all in their plead-ings, choosing simply to cite the policy statement as entitling them to reopen any proceeding to litigate TMI-related issues.
In its Revised Policy Statement the Commission noted that NUREG-0737 requirements, in terms of their relationship to existing Commission regulations, could be categorized as (1) clarifying existing requirements and (2) adding new requirements.~
It would be much more difficult to show that information which clarifies prior requirements, rather than creating new requirements, is information which would change the result which was based on the original record; a showing, of course, which is required for the record to be reopened.
Even for new requirements the proponent of reopening the record must still make this showing.
Joint Intervenors and Governor Brown have not attempted to make such a showing with respect to either category of NUREG-0737 actions.
The analysis of non-TMI related issues would follow a similar pattern to that described above for TMI-related issues.
However, the showing under those circumstances is more difficult.
Unlike the TMI-related issues it is not evident that significant new information exists absent a demonstration of such information by the proponent of reopening the record. 16/
15/ Revised Policy Statement, p.
7 of Slip opinion.
16/
Attached as Appendix A is a diagrammatic representation of the process outlined above which the Staff believes must be followed under the Revised Policy Statement for admitting contentions to the Diablo Canyon Low Power Proceeding.
Both the Licensing Board and PG8E appear to agree with the Staff's analysis of the showings which must be made in order to permit acceptance of the Joint Intervenors'ontentions and reopening of the record on those issues.
The areas of disagreement appear to be on what portions of these requirements are met by the revised policy statement.
PGRE maintains that no'ne of the requirements are met by the Revised Policy Statement.
It maintains the Revised Policy Statement satisfies neither the good cause requirements of 10 C.F.R. 5 2.714(a)(1) for late filing nor the 'significant new information changing the result'equire-ment for reopening a closed record.
The Licensing Board's position takes the other extreme by maintaining that the Revised Policy Statement satisfies all requirements for late filing and reopening of the record on THI-related issues.~
The Staff's position falls in between these two extremes'.:
17/
The Staff maintains that, with respect to late-filed contentions, each of the requirements of 10 C.F.R. 5 2.714(a)(1) must be met before the contention can be admitted.
None of the five contentions admitted by the 17/
On p.
16 of the Licensing Board's February 13, 1981 Prehearing Confer-ence Order the Board noted that the Joint Intervenors and Governor Brown had relied on NUREG-0737 as providing the basis for late filing and reopening the record and had not otherwise sought to establish good cause for admitting new contentions or reopening the record on old contentions.
The Board stated it would, likewise, rely solely on t<UREG-0737 for establishing good cause for admitting new contentions if there was a nexus to Diablo and the contentions were significant.
As a result, the Board found NUREG-0737 alone satisfied the require-ments for late filing and reopening for five Joint Intervenor con-tentions and four of Governor Brown's subjects.
Licensing Board were pr eviously admitted contentions.
Consequently, 18/
the Licensing Board erred by not requiring the 10 C.F.R. 5 2.714(a)( 1) showing to be met for these contentions.
The Staff does agree that, on THI-related issues, the Revised Policy Statement and NUREG-0737 do provide the 'significant new information'hich is the first of the requirements which must be met for reopening a
closed record.
The Staff disagrees with the Board's apparent conclusion that all matters contained in NUREG-0737 satisfy the requirement that the new information be such as would have changed the initial result if origi-nally considered.~
The proponent of reopening the record has the burden of showing that this last requirement has been met.
The Licensing Board failed to address this requirement other than to say the Revised Policy Statement would satisfy the requirement.
Prehearing Conference Order at p.
12.
18/
The five contentions can be summarized as follows:
Contentions 4 and 5 - Related to the adequacy of Applicants, State',
and local emergency plans to meet post TMI emergency planning requirements.
Contention 11 - Whether the addition of proposed pressurizer heaters to on-site emergency power supplies will compromise the power supplies.
Contention 13 - Whether a direct water level indicator should be required prior to fuel load rather than by 1/1/82 as required by NUREG-0737.
Contention 24 - Ilhether testing of relief and safety valves must be completed prior to fuel load.
(Note the Board apparently has admitted this contention as it relates to testing of Black valves through the Joint Intervenors contention did not mention Block valves.)
19/
Of course, this showing depends in part on whether the NUREG-0737 issue is a
new requirement or an interpretation of an existing requirement.
Joint Intervenors and the Governor made no effort to identify either.
Since Joint Intervenors and Governor Brown have failed to even address, let alone meet, the requirements for late filing and reopening the record, none of their contentions or subjects should be admitted for litigation in the Diablo Canyon Low Power Testing Proceeding.
III.
POSSIBLE OPTIONS For the reasons stated in the Staff's Request for Directed Certification, as amplified in this response,
~su ra, a course of action which the Staff recommends is for the Commission, as promptly as
- possible, to direct certification of the Licensing Board's February 13, 1981 Prehearing Conference Order and to review the Board's interpretation and application of the Commission's Revised Statement of Policy in this proceeding.
If the Commission directs certification and accepts the Staff's position, as the Staff believes it should, the Commission should reverse the Licensing Board's rulings admitting contentions.
The views of the Licensing Board and the parties are fully set forth in the record below.
If the Commission reverses the Licensing Board's rulings on all of the contentions which the Board admitted, a decision can be issued on PGSE's motion for fuel load and low power test authorization.
To avoid further unnecessary delay, the Commission could accompany its reversal with a direc-tion to the Board to render its decision on the low power license by a speci-fied date, and provide for that decision to be certified to the Commission for immediate review.
10 C.F.R. 5 2.718(i) provides that the Commission can direct certification of such decisions to it for immediate review.~
20/
Cf.
10 C.F.R 5 2.760(a) which provides that the Commission can direct certification of an initial decision to it for immediate review.
The Commission directed that the initial decision be referred to it for immediate review under 5 2.760(a) in Metropolitan Edison Company (Three Mile Island Unit 1), CLI-79-8, 10 NRC 141 (1979).
~'
This option would expedite resolution of the fuel load and low power license application for the Diablo Canyon facility by avoiding the possibility of motions to reconsider to the Licensing Board and appeals to the Appeal Board which would delay final resolution by the Commission itself. It also has the advantage of having the remaining issues decided initially by the body most familiar with the factual record in the case.
This option is obviously dependent on whether or not the Commission directs certification and, if it does, on whether it reverses the Licensing Board's rulings admitting contentions.
If the Commission does not take both actions, as the Staff urges, other options, such as those suggested by PG8E, are available for consideration for the low power proceeding.
Of
- course, an independent set of options is available for the full power proceeding.
All of the other options would have the Commission involve itself in varying degrees in conducting evidentiary hearings and rendering initial decisions.
Although the Commission clearly has the inherent authority to so proceed, consistent with the requirements of the Administrative Proce-dure Act, 5 U.S.C.
55 551 et sece.
(hereinafter APA), only the Commission itself is in a position to decide whether it has the time and resources to devote to efforts which traditionally are the functions of presiding boards.
The Staff is aware of no instance in which the Commission itself has pre-sided over the taking of evidence in an adjudicatory proceeding.
There is only one known instance in which the Commission had a record certified to it and thereafter itself rendered the initial and final decisions.
Power Reactor Develo ment Co.,
1 AEC 65, 128 (1959).
As far as the low power proceeding is concerned, should the Commission reject the
Staff's position with the result that the contentions admitted by the Licensing Board must be litigated, the Staff believes that the most expeditious method of proceeding would be to allow the Licensing Board to conduct the required proceedings (discovery, other prehearing
- matters, and evidentiary hearings). This could be accompanied,
- however, by 21/
Commission directions to the Board to (1) issue its decision as expedi-tiously as possible or by a specified date and (2) refer its decision to the Commission for immediate review.
The second option which could expedite review, if all contentions are rejected, would be for the Commission to direct the Licensing Board to certify the record to the Commission for decision.
With respect to PG8E's suggested options which would result in the certification of the complete record to the Commission without a Licensing Board decision, (PGSE Motion at p. 28),
certain APA provisions are relevant.
Under sections 554(d) and 557(b) of the Administrative Procedure Act and 10 C.F.R. 5 2.760(b), in order to remove the initial decision from the Board, the Commission would have to allow for exceptions to the initial decision to be filed and considered, or demonstrate that the initial decision can be omitted on the basis of a finding that "due and timely execution of its [the Commission's]
functions imperatively and unavoidably so requires."
10 C.F.R. 5 2.760(b)(2).
If the Commission cannot make that finding, the Commission could, nevertheless, issue an initial
~21 It should be emphasized
- that, as stated in the Staff's Request for Directed Certification, if further litigation is required on the low power application, a final decision on it would not likely be rendered before December 1981.
For the Commission's information an estimated schedule assuming different options is included as Appendix B.
>>17-decision providing for a reasonable period for exceptions to be filed and considered before the decision became final.
This option would eliminate the necessity for the Licensing Board to issue any further decision, but would impose that burden on the Commission.
In the event all contentions are not rejected, there are various options which could expedite the proceeding.
First, the Commission could (as suggested by PGSE) hold hearings on any admitted contentions for low power, directing the Licensing Board to decide the outstanding issues on the record before it and to refer those decisions directly to the Commission.
This option would comply with the APA and 10 CFR 5 2.760(a) which require the presiding officer to make the initial decision in a case where he has presided over the reception of evidence. However, this option assumes that the Commission wishes to take on the burden of holding the evidentiary hearing itself and render-ing the requisite decisions on the issues involved.
PG&E has also proposed that the Commission decide any admitted contentions without further discovery or hearing as they involve only legal or policy issues and not factual issues.
It should be noted that the discovery period for the low power contentions has already passed in this proceeding.
While the Staff believes that there is an absence of factual issues regarding the contentions admitted by the Licensing Board, the most expeditious way to deal with such contentions is through the summary disposition procedures.
~22 The Commission has indicated it will assume the Licensing Board's function of compiling and analyzing a record only in exceptional circumstances.
See
~e... Washington Public Power Supply System (WPPSS Units 3
8 57 CLI-77-11, 5
NRC 719, 722 (1977).
A third option would be for the Commission to designate an Appeal Board to hear the evidence on the admitted contentions expeditiously or by a specified date in the Low Power proceeding.
At the same time 23/
the Commission could direct the seismic and security Appeal Boards and the Licensing Board to issue their pending decisions on the issues remain-ing before them expeditiously or by a specified date.
This option com-ports with the APA while freeing the Licensing Board and Appeal Boards to concentrate on the remaining issues pending decision.
It would create a Board which could be directed to expeditiously decide the Low Power request.
However, the Licensing Board has already heard most of the evidence related to low power and another Board would have to review the previous record, as well as the new material with respect to the contentions, before issuing the Low Power decision.
A fourth option (suggested by PGEE) is for the Commission to hold hearings on the admitted contentions and to direct certification of the record on full power to the Commission for issuance of an initial decision on,Low Power, full power, or both.
While the preceeding discussion has addressed options for Commission action within the context of PGSE's motion for low power authorization, the same conceptual approaches are equally applicable to further proceedings which may be required on the full power application.
As noted earlier, on those issues where the Licensing Board has presided over the receipt of evidence compliance with
~23 The appointment of a Board to hear these issues would be authorized by 10 C.F.R. 5 2.721 and 10 C.F.R. 5 1.11.
As respects a special licensing Board; and 10 C.F.R. 5 2.78S and 10 C.F.R. 5 1.12 as respects assigning the Appeal Board to hear the issues.
the requirements of APA 5 557(b) and 10 C.F.R. 5 2.760(b) for removing an initial decision from a presiding officer is necessary.
This option also requires the Commission to assume the burden of holding the eviden-tiary hearing.
IV.
CONCLUSION The Staff urges the Commission to promptly direct certification of the Licensing Board's February 13, 1981 Prehearing Conference
- Order, adopt the Staff's interpretation of the Commission's Revised Policy Statement in this proceeding, and reverse the Licensing Board's rulings which admitted contentions.
Should the Commission,
- however, determine that contentions should be admitted in this proceeding, the Staff believes that the most expeditious method of proceeding would be to allow the Licensing Board, which is already familiar with the record in this case, to hold evidentiary
- hearings, with di rections to issue its findings as expeditiously as possible or by a specified date, and with directions that the Licensing Board s Decision be referred to the Commission for immediate review.
The same directions could be given the Licensing Board with regard to the remaining full power matters to be decided.
The Commission can direct the two Appeal Boards to decide the seismic and security issues as expe-ditiously as possible or by a specified date.
The other options which for the most part would transfer to the Commission itself functions which otherwise would be performed by the Licensing Board depend in large measure on the time and resources the Commission decides it could devote to such efforts.
Although no legally
acceptable procedural approach should be overlooked to bring this prolonged proceeding to an end, the Staff believes that much could be accomplished now if the Commission were to give its interpretation to its Revised Policy Statement, reverse the Licensing Board's rulings admitting the contentions, require a Licensing Board decision on the low power motion by a specified date, and further provide for immediate Commission review of the Licensing Board's decision.
Respectfully submitted,
<lilliam J.
Olmstead Assistant Chief Hearing Counsel Bradley M. Jones Counsel for NRC,Staff.
Dated at Bethesda, Maryland this 18th day of March, 1981.
ADMISSIBILITYOF CONTENTIONS FOR DIABLO CANYON LOW POWER PROCEEDING Appendix A
PREVIOUSLY ADMITTED CONTENTION NOT PREVIOUSLY ADMITTED CONTENTION MUST MEET 10 CFR 2.7'l4(a)(1)
(I) Good Cause for Lateness (II) Other means to Protect Interest (III) Helps Develop good Record (IV) Interest Represented by other Parties (V) Delay ifAdmitted TMI-RELATED REQUIREMENTS FOR REOPENING NON-TMI RELATED POLICY STATEMENT SATISFIES SIGNIFICANT NEW INFORMATION SIGNIFICANT NEW INFORIYIATION YES Clarifies prior requirement INFORMATION Cl-IANGES RESULT YES NO Adds new requirement INFORMATION CHANGES RESULT FA YES LS INFORMATION CHANGES RESULT YES FA LS ADMIT FAILS ADMITTED FA LS ADMITTED AND RECORD REOPENED AND RECORD REOPENED AND RECORD REOPENED
r
Appendix B
SCHEDULING IMPACTS ~
OPTION Commission Does Not Direct Cert or Affirms Licensing Board or reduces Number of Contentions 1.
Hearing May 19, 1981-2.
Decision - September 14, 1981-3.
Earliest date for low-power authorization - December 3, 1981 OPTION Commission Directs Cert and Denies All Contentions and Subjects 1.
Commission Ruling by - April 15, 1981 2.
Board directed to issue low power decision and refer to Commission by date certain (35 days for decision assumed}
Nay 20, 1981 3.
Earliest date for low power authorization - June 5, 1981 (60 day Appeal Board review under Appendix B is omitted.
Commission Appendix B review assumed to be 20 days}
OPTION Commission Directs Cert and adds other Contentions 1.
Commission decision by April 15, 1981 2.
Hearing Commences (assumes 90 days from Commission decision to hearing start July 14, 1981 3.
Earliest date for low power authorization - January 31, 1982 (Additional time necessary to complete prehearing procedur es and testimony on new contentions)
"/
The above dates are the Staff's best estimates assuming expeditious decisions among the various options.
A more reliable schedule can be predicted once the Commission decides the certification issues.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
)
(Diablo Canyon NucIear Power Plant Unit Nos.
1 and 2)
)
Docket Nos.60-276 O.L.
50-323 O.L.
CERTIFICATE OF SERVICE I hereby certify that copies of NRC RESPONSE TO THE REQUEST OF PACIFIC GAS AND ELECTRIC COMPANY FOR DIRECTED CERTIFICATION in the above-captioned pro-ceeding 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 18th day of March, 1981.
%r.. Samuel J. Chilk Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Leonar d Bickwit, Esq.
General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20565
- 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 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Gr. W. Reed Johnson Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
+Mr. Thomas S. Moore, Member Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Elizabeth S. Bowers, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
%r. Glenn 0. Bright Atomic Safety and Licensing Board U.S. Nucl'ear Regulatory Commission Washington, D.C.
20655
- 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
r 1
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. 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
& Wilmer 3100 Valley Center Phoenix, Arizona 85073 Paul C. Valentine, Esq.
321 Lytton Avenue P a 1 o Alto, California 94302 Harry M. Willis Seymour 5 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 5 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, 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 Fr anci sco, Cal ifornia 94105 Mr. Herbert H. Brown Hill, Christopher E Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol Sacramento, Cali fornia 95814
~
~
P>>
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comaission
'ashington, O.C.
20555
+Atomic Safety and Licens'ing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, O.C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, O.C.
20555 William J..
Ol stead Assistant Chief Hearing Counsel