ML16340B568
| ML16340B568 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/01/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-81-5, ISSUANCES-OL, NUDOCS 8104060653 | |
| Download: ML16340B568 (12) | |
Text
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eggyp 1t COMMISSIONERS:
ufpc/~ i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gOCYSm~
USHRC 4
APR g <98) I ofhce of the Scathe pecking & Service Br nch 6'oseph M. Hendrie, Chairman Victor Gilinsky Peter A. Bradford John F. Ahearne In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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(Diablo Canyon Nuclear Power
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- Plant, Units 1 and 2)
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Docket Nos.
50-275 O.L 50-O.L.
ORDER CLI 5 The Commission has reviewed the Atomic Safety and Licensing 0 ~
Board's Prehearing Conference Order dated February 17,
- 1981, as well as the underlying papers and oral argument, and determinined that additional Commission guidance, consistent with its Revised Statement of Policy, CLI-80-42, 12 NRC (1980),
needs to be provided on litigation of Three Mile Island (TMI) accident related issues in licensing proceedings.
The Commission recognizes that this guidance could lead to reconsideration of some of the various rulings contained in the February 17, 1981 Order.
In providing this guidance the Commission is exercising its inherent supervisory Slo4ooo t 5s Jot
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a 'i C.
authority over pending adjudications.'
See Public Service Co.
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of New Ham shire (Seabrook Station, Units 1 and 2), CLI-77-8, 5
NRC 503 (1977)
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The Board Should Rule. Prom tl on Motioris for Fuel Loadin and Low Power Testin Pursuant to 10 /FR 50.57(c),
the filing of a motion for a partial initial decision on fuel loading and low power testing requires an initial determination by the Licensing Board on whether the evidentiary record compiled to that point is adequate for such a partial decision.
10 CFR 50.57(c) does not generally contemplate that a new evidentiary
- record, based on litigation of new contentions, would be compiled on the motion for fuel loading and low power testing.
When the record has been closed but motions to reopen have been filed, the Licensing Board should decide whether the record must be reopened for new evidence directly relevant to the fuel loading and low power licensing. request. 'ecisions on full power issues associated with the motion to reopen could be postponed until later.
2'.
The Record Should Not Be Reo ened Absent a Showin that Si nificant New Evidence Which Would Affect the Decision Is Available As we stated in the Revised Policy Statement, where the evidentiary record on safety issues has been closed, The Commission is aware of the various participants'equests for certification or directed certification to the Commission regarding the February 17, 1981 Prehearing Conference Order.
These motions appealing an interlocutory order are not provided. for in the Commission's Rules of Practice and are accordingly denied.
In issuing this Order the Commis,sion is exeroising its authority sua
~s onte.
The Union of Concerned Scientists'equest to Participate as Amicus Curiae is similarly denied.
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the record should not be reopened on TMI-related issues relating to either low or full power absent a showing, by the moving party, of "significant new eve.dence not included in the record, that materially'affects the decision."
This is in accord with longstanding Commission practice., E~
Kansas Gas 6 Electric Co., et al.
(Wolf Creek Generating
- Station, Unit 1),
ALAB-462, 7
NRC 320, 338 (1978).
We emphasize that bare allegations or simple submission of new contentions is not sufficient.
Only significant new evi-dence requires reopening.
Of course, in moving to reopen, a
party need not. supply written testimony of independent
- experts, but is free to rely on admissions and statements from applicant and NRC staff and official HRC documents or other documentary evidence.
Where A Part Can Adduce Si nificant New Evidence That an
'RC Re ulation W uld Be Violated b Plant 0 eration, that Contention Should Be Admitted Notwithstandin the Fact that this Matter Is Not Addressed in NUREG-0737 and 0694 Parties:are generally free to raise issues of compliance with NRC regulations, subject to 10 CFR 2.714 specificity and lateness requirements, where applicable, and standards for reopening
- records, where applicable.
This holds true for TMI-related issues, and nothing in the Revised Policy Y
Statement affects this.
Thus, if a party comes forward on a timely basis with significant new TMI-related evidence indicating that an NRC safety regulation would be violated by plant operation, we believe that the record should be
~ reopened notwithstanding that the noncompliance item is not
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4 c,'iscussed in NUREG-0737 and 0694.
- However, the parties are required to make the initial".c'ase that significant new l.
evidence is available, not merely make claims to that effect.
4.
Procedures for Ar uin that there is Insufficient Protection to the Public Des ite Com liance with All NRC Re ulations Where the new evidence raises no issue of compliance but rather questions whether there is adequate protection despite compliance with all applicable regulations, a
party has two procedural options under the Revised Statement of Policy.
- First, a party may challenge the sufficiency of an item in the NUREG documents.
However, the scope of the inquiry under this option is limited to the particular safety concerns that prompted the specific "requirements" in NUREG-0694 and 0737.
What we had in mind was allowing a party to focus on the same safety concern that formed the basis for the NUREG requirement and litigate the issue of whether the NUREG "requirement" is a sufficient response to that concern.
Contentions which address a safety concern 2/
For example, the Item I.A.1.3 of NUREG-0737, which deals 2/
with shift manning and imposes additional requirements above and beyond 10 CFR 50.54(k), deals with the safety concern that there must be adequat'e expertise in the control room at all times to cope with any accident or unexpected event.
The concern does not relate to the general design of the control room or to the need for specific control room equipment.
- Thus, a contention which purports to challenge the sufficiency of the shift manning requirement would have to be based on the argument that this requirement was inadequate to deal with control room staffing, and a challenge to Item I.A.1.3 which focused on control room design and equipment would not. be permissible.
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not considered in NUREG-0694 and 0737 shall not be enter-tained as challenges to the sufficiency of those require-ments.
- Second, where the contention or new evidence cannot be associated with a safety concern identified by NUREG-0694 or 0737, 10 CFR 2.758 may be used to bring the matter to the I
Commission's attention without prior litigation on the merits.
In this situation, a party must first make a
prima facie, case to the Board that application of a given rule in this particular proceeding would not serve the purpose for which that rule was adopted.
If the party is able to make this case, the Commission will determine whether that rule will be waived or an exception made from its requirements in that case.
We note that quite apart from the procedures of 10 CFR 2.758, parties are always free to bring to the attention of the Commission any matter within its jurisdiction.
This course would be available to a party even where a Board had ruled that the party had not made the prima facie case required by 10 CFR 2.758.
In such
- cases, the Commission is under no obligation to respond to the matter.
In addition, of course, the specificity and lateness requirements of 10 CFR 2.714 must be satisfied, where applicable, and the standards for reopening records must be satisfied, where applicable.
Thus, to have a late filed contention admitted, the following factors must be considered:
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6 (i)
Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the the petitioner's interest will be piotected.
(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 issue or delay the proceeding.
In addition, the proponent of reopening the record must present significant new information, a requirement which could be satisfied by reference to new information in 1JUREG-0737.
Finally, it must be shown that the new information would have caused a different result had it been considered originally.
It is so ORDERED.
Fo the Co i sion SMCUEL Secretary of 'HILK the Commission Dated at Washington, D.C.
aha fC(
day of April, 1981.
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