ML16341B268

Brief in Opposition to Intervenor San Luis Obispo Mothers for Peace 791015 Notice of Appeal & Exceptions to ASLB 790927 Partial Initial Decision,Part Iv.Intervenor 791019 Response Waived Right to Participation.W/Certificate of Svc

ML16341B268
Person / Time
Site:	Diablo Canyon
Issue date:	12/18/1979
From:	Staenberg M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8001070441
Download: ML16341B268 (78)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Hatter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nucl ear Power Plant, Units 1 and 2)

Docket Nos.

50-275 OL 50-323 OL NRC STAFF 'S BRIEF IN OPPOSITION TO EXCEPTIONS OF INTERVENOR SLOHFP TO PART IV OF PARTIAL INITIAL DECISION OF SEPTEMBER 27 1979 Mare R. Staenberg Counsel for NRC Staff

I

TABLE OF CONTENTS

~Pa e

A.

INTRODUCTION B.

STATEMENT OF THE CASE C.

ISSUES ON APPEAL 10 D.

STAFF ARGUMENTS.

I.

An Appeal as to Mr. David Comey's gualifications 1s Moot o

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II.

Assuming arguendo that the question of Mr. Comey's qualifications is not moot, the Licensing Board properly found that Mr. Comey did not qualify as an expert witness as a matter of fact..........

III.

The Licensing Board correctly determined that the INTERVENORS RESPONSE of January 19, 1979 was a

withdrawal of participation and voluntary default on the security contention.

13 17 IV.

The Licensing Board correctly determined that Intervenor failed to make the necessary good cause showing to reinstate the defaulted contention 21 E

CONCLUSION

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~e Cases TABLE OF AUTHORITIES

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Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2, LBP-76-7, 3

NRC 156 (1976)

Consumers Power Co. (tlidland Plant, Units 1

& 2),

ALAB-452, 6 NRC 892 (1977)

Duke Power Co.

(Catawba Nuclear Station, Units 1

& 2, ALAB 355, 4

NRC 397 (1976)........,.....

Illinois Power Co. (Clinton Power Station, Units 1 and 2, ALAB-340, 4 NRC 27 (1976).

Louisiana Power

& Li ht Co. (Waterford Steam Electric Station, Unit 3), ALAB-117, 6 AEC 261 (1973)

Louisiana Power

& Li ht Co. (Waterford Steam Electric Station, Unit 3), ALAB-242, 8 AEC 847 (1974)

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Mississi i Power

& Li ht Co.

(Grand Gul f Nuclear Station, Units 1 and 2), LBP-73-41, 6 AEC 1057 (1973)

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New En land Coalition on Nuclear Pollution v.

NRC, 582 F.2d 87 1st Cir. 1978 Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1, ALAB-224, 8 AEC 244 (1974)

Northern Indiana Public Service Co. (Bailly Generating Stat>on, Nuclear 1, AL B-303, 2

NRC (1975)

Northern States Power Co. (Prairie Island Nuclear Power Plant, Units 1 and 2), ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1

NRC 1 (1975).............

18 16 10,16 10 25 20,26 24 16 21,26 16 29 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857 (1974) 27,28 29030

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Northern States Power Co. (Prairie Island Nuclear Power Plant, Units 1 and 2), ALAB-288, 2

NRC 390 (1975)..........................

18,28 Pacific Gas and Electric Co.

Nuclear Power Plant, Unit 2) 8 AEC 1184 (1975).

Pacific Gas and Electric Co.

Nuclear Power Plant, Units 1

5 NRC 1398 (1977),

Comm.

Rev 77-23, 6

NRC 455 (1977).

(Diablo Canyon

, ALAB-254, (Diablo Canyon and 2), ALAB-410,

. declined, CLI-

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14,15 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8

NRC 406 (1978)

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-78-36, 8

NRC 567 (1978)

Pacific Gas and Electric Co. (Diablo Canyon Nuc ear ower

ant, n>ts 1 and 2), ALAB-514, 8

NRC 697. (1978)

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-79-1, 9

NRC 1 (1979)

Public Service Electric

& Gas Co. (Atlantic Nuclear Generating Station Units 1 and 2),

LBP-75-62, 2

NRC 702 (1977).

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station Units 1 and 2), ALAB-459, 7

NRC 1979 (1978)

Public Service Co. of New Ham shire (Seabrook Station, Units 1 and 2, ALAB-422, 6 NRC 33 (1977), aff'd CL1-78-1, 7

RRC 1 (1978) aff'd sub noma

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3,12 4,12,13,17 4,13 25 10 16 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2, ALAB-397, 5 NRC 1143 (1977)...,.........

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Rober ts v. United States 316 F.2d 489 1963.........................

16 Sanchez

v. Safewa 451 F.2d 948 1971).

16 Salem v. United States Lines Co.

370 U.S.

31 1961

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16 Tennessee Valle Authorit (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-367, 5

NRC 92 (1977)...........................

16,29 Tennessee Valle Authorit (Hartsville Nuclear Plant, Units 1A, 2A, 1B 8 2B), ALAB-463, 7 NRC 341 (1978).. 1.................. 0....

27 Wisconsin Electric Power Co. (Point Beach Nuclear P ant, nit 2

, ALAB-78, 5 AEC 319

( 1972)

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~R 10 CFR 5 2.707.

10 CFR 5 2.714.

10 CFR 5 2.718.

10 C FR 5 2. 75 7.

10 CFR 5 2.760.

10 CFR 5 2.786.

10 CFR Part 73.

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9 References McCormick on Evidence (1954).................

15,16 Wigmore on Evidence (3d Ed. 1940).

16

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

PACIFIC GAS AND ELECTRIC COMPANY

)

(Diablo Canyon Nuclear Power Plant,

)

Units 1 and 2)

)

Docket Nos. 50-275 OL 50-323 OL NRC STAFF'S BRIEF IN OPPOSITION TO EXCEPTIONS OF INTERVENOR SLOMFP TO PART IV OF PARTIAL INITIAL DECISION OF SEPTEMBER 27 1979 A.

INTRODUCTION On October 15, 1979 Intervenor San Luis Obispo Mothers for Peace (SLOMFP) filed a Notice of Appeal and Exceptions to the Licensing Board's Partial Initial Decision - Operating Licensing Proceedings (PID) which was rendered on September 27, 1979.

The exceptions totaled 15 in number and were related only to Par t IV of the PID, the security plan review.

There were also four "exceptions" taken to the Licensing Board's RECONSIDERATION ORDER of November 3, 1978.

On November 12, 1979 the Intervenor filed a Brief in Support of Exceptions to Part IV of Partial Initial Decision.

The Staff submits this brief in opposition to Intervenor's appeal and urges, for the reasons set forth below, that Part IV of the PID of the Licensing Board be affirmed.

B.

STATEMENT OF TKE CASE 1.

Reference To Prior Rulings The present operating license proceeding has been before the Appeal Board on three occasions.

Initially, on October 8, 1976, the Applicant, Pacific Gas and Electric Co.

(PGSE),

sought review by the Appeal Board of the question whether the security plan for the Diablo Canyon facility should be made available, under protective order, to counsel and expert witness(es) of the Intervenor.

On June 9, 1977, the Appeal Board, in ALAB-410, 5 NRC 1398, Comm. rev. declined, CLI-77-23, 6

NRC 455 (1977),

concluded that those portions of the security plan relevant to the issues raised by the Intervenor were subject to discovery under an appropriate protective order if, inter alia, the Intervenor established that its proposed witness(es) possessed the technical competence necessary to evaluate the plan.

On May 23., 1978, Intervenor San Luis Obispo Mothers for Peace (SLOMFP) petitioned the Licensing Board to establish the qualifications of Mr. David Dinsmore Comey for the purpose of reviewing and testifying as an expert witness on the applicant's security plan.

The Licensing Board deferred ruling on the petition in order to permit the parties an opportunity to depose Mr. Comey on his qualifications.

Following his July 5, 1978 deposition, Counsel for the Applicant and the Staff urged

the Licensing Board to deny the Intervenor's petition on the ground that the Intervenor had failed to establish that Mr. Comey possessed the requisite qualifications to evaluate the security plan.

On September 5,

1978 the Licensing Board entered an order denying the petition.

ORDER RELATIVE TO INTERVENOR'S PETITION TO QUALIFY DAVID COMEY AS A SECURITY EXPERT, September 5, 1978.

By petition to the Appeal Board dated September 22, 1978 (and supple-mented by Memorandum dated October 6, 1978),

SLOMFP sought review by directed certification of the Licensing Board's September 5, 1978 ruling.

On October 27, 1978, the Appeal Board determined that the Licensing Board had not sufficiently developed the basis for its con-clusion regarding Mr. Comey's lack of acceptable qualifications.

In its Order, the Appeal Board vacated the Licensing Board's September 5,

1978 Order and remanded the matter to the Licensing Board for prompt reconsideration and "a full explication of the reasons underlying whatever result that Board might reach upon such reconsideration."

ALAB-504,. 8 NRC 406, 412 (1978).

On November 3, 1978 the Licensing Board entered a

new order (RECONSIDERA-TION OF SEPTEMBER 5 ORDER) in which it adhered to its prior ruling and amplified the reasons therefor.

LBP-78-36, 8

NRC 567 (1978).

By petition dated November 20,

1978, SLOMFP returned to the Appeal Board requesting review and reversal of the November 3, 1978 Order.

On December 22,

1978, the Appeal Board denied the petition, finding that its remand had been satisfied, ALAB-514, 8 NRC 697 (1978).

On January 5, 1979, Mr. David Comey died in an automobile crash, and thereafter on January 26, 1979, the Commission declined to review ALAB-514 as moot because of Mr. Comey's death.

CLI-79-1, 9 NRC 1 (1979).

===2.

Background===

The Operating License hearing on certain of the radiological health and safety issues was resumed on December 4, 1978 in Avila Beach, California.

Among the matters to be taken up during the course of these hearings was Intervenor SLOMFP's security contention.

On January 19, 1979,

SLOMFP, through its counsel of record, Paul C. Valentine and Yale I. Jones, filed with the Licensing Board a pleading entitled INTERVENORS

RESPONSE

AS TO PARTICIPATION IN HEARING ON SECURITY PLAN (RESPONSE).

This pleading was filed during a period when the hearings were in a short recess.

Ql e

earsngs were held on December 4-23, 1978, January 3-16, 1979'and February 7-15, 1979.

0 The RESPONSE filed by the Intervenor summarized the unsuccessful attempts of the Intervenor to proffer an acceptable expert witness for purposes of reviewing the security plan,+ the last of which was Mr. David Comey.

In their

RESPONSE, the Intervenor stated that Mr. Comey's death had mooted their planned appeal.

Moreover, the RESPONSE concluded:

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 im ssible for this Intervenor to re are, either for ss nificant cross-exam nation on the inade uacies of the a

licant's securit lan or to resent affirmative evs ence to su ort Intervenor s contentions.

Therefore this Intervenor will not be able to artici ate in the hearin s

now scheduled for t e first week of Februar as to the ade uac of a licant s securit lan.

Emphasis added.

Notwithstanding this assertion by the Intervenor, the Licensing Board indicated, following a bench conference on Wednesday

morning, February 7,

Q2 ntervenor an uis Obispo Mothers for Peace (SLOMFP) attempted unsuc-cessfully on several occasions to have one of its profferred witnesses qualified as an expert for purposes of examining and preparing a chal-lenge to the Applicant Pacific Gas 5 Electric (PGSE) security plan.

On August 29, 1977, SLOMFP petitioned the Licensing Board to certify Dr. Douglas L.

De Nike.

On November 3, 1977 the Board declined.

On February 1, 1978, SLOMFP petitioned the Board to certify Dr. Bruce L.

Welch.

On February 1, 1978 the Board declined.

On March 32, 1978, SLOMFP petitioned the Board to certify Mr. Richard Hubbard.

On tray 11, 1978 the Board declined.

On May 23, 1978 SLOMFP petitioned the Board to certify Mr. David D. Comey.

On September 5, 1978 the Board declined.

Lengthy litigation followed this last attempt by SLOMFP to qualify an expert witness.

1979 to discuss future scheduling, that it had decided to proceed with and schedule an in camera evidentiary session on, the security plan for the Diablo Canyon facility on February 12, 1979.

(Tr. 8741)

Late in the day on Thursday, February 8, 1979, the Board received the following telegram from Mr.

W. Andrew Baldwin:

Q3 As early as January 18,

1979, the Licensing Board received a letter from Mr. Baldwin, an attorney in San Francisco, requesting to make a limited appearance on behalf of Friends of the Earth at the resumption of the Diablo Canyon operating license hearings in San Luis Obispo on February 6, 1979.

On January 22, 1979, the Licensing Board denied Mr. Baldwin's request by the following letter (excerpt):

We received your request of January 18, 1979, to make a limited appearance statement at the resumed Diablo Canyon hearing on Feb-ruary 6, 1979.

Since we had heard 193 limited appearance statements prior to the December 4, 1978, hearing, we acquiesced to the request of all parties, including the Joint Intervenors, to set a time cer-tain at the beginning of the December hearing for limited appearance statements.

The parties suggested two days, so on December 4 and 5

we heard 146 limited appearance statements.

Many others submitted written statements.

Many of the oral and written statements were from the San Francisco area.

We will not be hearing additional oral statements but if you choose to submit a written statement, we will welcome it.

On February 7,

1979 Mr. Baldwin appeared at the resumed OL hearings in San Luis Obispo.

Following an announcement by the Board regarding future scheduling, including the upcoming in camera hearing session on the secu-rity system (Tr. 8741), Nr. Baldwin addressed the Board stating that he was there representing Congressman Ronald Dellums, Friends of the Earth and Mr. Roland Finston, and wished to make the limited appearance he had requested by letter.

(Tr. 8742.)

The Licensing Board again explained its position respecting time for limited appearances which it had outlined in its original letter of response to Mr. Baldwin and expressed concern that if it permitted an exception in his case other requests to be heard would follow. It again denied his request.

(Tr. 8742-8743)

0

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 Fleishaker where and when I should appear to begin the tour.

Regret that another case required my return to San Francisco.

Respectfully W. Andrew Baldwin, Friends of the Earth (Tr. 9103)

Late in the day on February 8, 1979, the Licensing Board requested the responses to the telegram by the parties.

(Tr. 9080-9099).

Counsel for the Joint Intervenors, Mr. Fleishaker, was unaware of Mr. Baldwin's position or role and stated that he could add nothing because "I cannot speak for any client on this issue."

(Tr. 9086)

PGSE stated that, short of a direct Commission Order, it would not permit Mr. Baldwin on the security tour (Tr. 9086).

Both the Applicant and the Staff took the position that participation by SLOMFP in the security contention as well as the contention itself had been withdrawn as a result of the Intervenor's RESPONSE of January 19, 1979.

(Tr. 9089, 9095)

After considering the matter overnight, the Licensing Board rendered its decision at the beginning of the hearing session on February 9, 1979.

On the record the Board recited the events that had occurred to that point.

(Tr. 9103 et.

~se.)

Specifically, the Board reviewed the precise words of the January 19

RESPONSE

and concluded that, had it not been for the exigencies of travel, the Board would have issued an order

"dismissing the intervenors from the proceeding for the security con-tentionn."

(Tr. 9105)

The Board reiterated that it would conduct a full scale hearing on the security system with the Applicant and Staff and their witnesses, and declared that it would "expect a thorough examination of the security system."

(Tr. 9107)

After the hearing adjourned for the day (February 9), but before the Board and parties had left the hearing room, another telegram arrived from Mr. Baldwin stating:

Dear Mrs. Bowers:

Denial of my participation in Diablo Canyon's security system tour and hearings would be unprecedented, unfair and a denial of due process.

Please inform me when and where I should appear Monday to argue this matter.

Respectfully, Andrew Baldwi'n In a bench conference, both PGSE and the Staff supported Mr. Baldwin's request for oral argument.

The Board concurred and scheduled to hear Mr. Baldwin on Monday morning, February 12, 1979.

Following oral argument by Mr. Baldwin and the other parties, the Board reiterated its decision that, since no new fact or consideration had been presented by Nr. Baldwin, Intervenor SLOMFP had withdrawn their security contention as a "voluntary default" under 10 CFR 5 2.707

but that the Board would proceed with its review in order to satisfy itself that the security system meets the requirements of Part 73.

(Tr. 9367-9368)

At this point, Mr. Baldwin stated that he wished to enter his appearance for Mrs. Elizabeth Apfelberg and the Ecology Action Club of California Polytechnic Institute.

(Tr. 9369)

Some debate ensued as to whether these admitted intervenors had a security contention.

It was finally resolved that the security contention had been SLOMFP's alone and with their withdrawal the matter was closed.

(Tr. 9375-9376)

On June 8, 1979, a motion was filed by Mr. Baldwin for SLOMFP to reopen the hearing on the adequacy of the security plan for Diablo Canyon.

Finding that the motion did not meet the heavy burden of showing, among other things, any unresolved safety question the Licensing Board on July 30, 1979 denied the motion.

ORDER RELATIVE TO MOTION TO REOPEN THE HEARING ON THE SECURITY PLAN, July 30, 1978.

On September 27, 1979, the Licensing Board rendered its partial initial decision (PID) on the seismic issues, issues regarding aircraft and missile accidents, and the security plan review.

With specific regard to security matters, the Board recounts the Intervenor's inability to produce a qualified expert as mandated by the Appeal Board in ALAB-410,

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<<10-the letter from SLOMFP of January 19, 1979 withdrawing from the pro-ceeding and the Board's acceptance of it as a voluntary default under 10 CFR 5 2.707, and the Board's acquiesence to Staff and Applicant to proceed with review of the security plan.

PID, slip at 93.

The PID concludes that "[b]ased upon the evidence presented the Board finds that the PGSE security plan complies with all applicable NRC regulations."

Id., at 93.

The issues raised by this appeal are set forth belowP C.

ISSUES ON APPEAL As set forth in the Intervenor's Exceptions to the Licensing Board's PID and Intervenor Brief in Support of Exceptions, the issues raised by this appeal may be summarized as follows:

I.

Did the death of Mr. Comey moot further inquiry into his qualifications.

Q4 The Intervenor Brief did not address, either directly or indirectly, exceptions I.B.1-I.B.9 and III. Accordingly, since exceptions not briefed are abandoned, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 an L B-459, 7

NRC 179, 203 at n.

66 (1978);

Duke Power Co.

(Catawba Nuclear Station, Units 1

5 2),

ALAB-355, 4 NRC 397, 413-14 (1976), the Staff's brief in opposition to the appeal will address the matters raised in the appellant's brief rather than the exceptions which have been filed.

Illinois Power Co.

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Clinton Power Station, Units l 8 2), ALAB-340, 4 NRC 27, 52 n.

39 1976).

II.

Did the Licensing Board err in not finding Hr. David Comey qualified as an expert to review the security plan?

(Intervenor Brief, pp. 2-10)

III. Did the Licensing Board err in accepting the January 19, 1979 INTERVENOR

RESPONSE

as a withdrawal and voluntary default under 10 CFR 5 2.707?

(Intervenor Brief, pp.

11-15)

IV.

Did the Licensing Board err in determining that Intervenor, through new

counsel, had not established good cause to participate in the security matter?

(Intervenor Brief, pp. 15-19).

D.

STAFF ARGUMENTS I.

AN APPEAL AS TO MR.

DAVID COMEY'S UALIFICATIONS IS MOOT The death of Mr. Comey in an automobile accident on January 5,

1979 rendered moot any further inquiry into or appeal respecting his qualifi-cations.,

The correctness of this conclusion can hest be demonstrated by a brief review of the procedural history of this issue.

As fully detailed in the STATEMENT OF CASE (Prior Rulings), Intervenor petitioned to qualify Mr. David Comey as a security expert back in May 1978.

The Licensing Board determined that he lacked the requisite 1

qualifications and denied Intervenor s petition in September 1978.

ORDER RELATIVE TO INTERVENOR'S PETITION TO QUALIFY DAVID COMEY AS A

SECURITY EXPERT, September 5, 1978.

SLOMFP appealed, rearguing the merits of'r. Comey's qualifications.

On October 27, 1978, the Appeal Board remanded the matter to the Licensing Board for reconsideration and, specifically, a fuller explication of the Licensing Boards reasoning and decision.

ALAB-504, ~su ra.

The Licensing Board again reconsidered Mr. Comey's qualifications and on November 3, 1978 held that it did not find Mr.

Comey qualified.

It gave full explanation to its decision.

RECONSIDERATION OF THE BOARD'S ORDER OF SEPTEMBER 5, 1978, November 3, 1978.

Intervenor appealed

again, but this time the Appeal Board declined the petition, finding that the Licensing Board had complied with its mandate.

ALAB-514, ~su ra.

Thereafter, on January 19, 1979 the Intervenor sent a letter to the Licensing Board responding to both Mr. Comey's death and ALAB-514 ih which Intervenor announced, among other things, that the planned appeal to the Commission of ALAB-514 was moot.

5/

5/

INTERVENORS

RESPONSE

AS TO PARTICIPATION IN HEARING ON SECURITY PLAN, January 19, 1979, states in pertinent part:

"On January 5, David Dinsmore Comey was killed in an automobile accident in the mid-west.

Mr.

Come 's death moots the lanned a

eal b

this Intervenor to the Nuclear Regulatory Commission under the provisions of 10 CFR 5 2.786 of the denial by the Appeal Board of Intervenor's Petition for Directed Certification."

(emphasis added)

Finally, the Commission concluded that the issue was moot.

In a short Memorandum opinion dated January 26, 1974,, the Commission declined to review ALAB-514, stating that:

The Commission does not review ALAB-514 because the death of the intervenor's witness has rendered moot the question of his qualifications for access to the facility's security plan.

No inference may be 'drawn with regard to our view of either the correctness of the Licensing or Appeal Board decisions or the importance of the issues involved.

The concession of mootness by the Intervenor and the Commission's like determination are clearly despositive of the issue of Mr. Comey's qualifications, and grounded upon such determinations the Appeal Board should reject the Intervenor's continued attempts to assert in this appeal the issue of the qualifications of Mr. Comey.

II.

ASSUMING ARGUENDO THAT THE QUESTION OF MR.

COMEY'S QUALIFICATIONS IS NOT MOOT, THE LICENSING BOARD PROPERLY FOUND THAT MR.

COMEY DID NOT UALIFY AS AN EXPERT WITNESS AS A MATTER OF FACT.

As discussed

above, the matter of Mr. David Comey's qualifications has been before the Licensing Board and the Appeal Board numerous times.

Each time the matter has been before the Licensing Board that Board has concluded, based upon a review of the evidence presented as set against, inter alia, fundamental standards of expertness as well as the specific standards announced by the Appeal Board in ALAB-410, that Mr. Comey simply was not qualified as an expert for the purposes for which he was

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profferred by Intervenor.

Each time an appeal of this matter has come before the Appeal Board',

accompanied by a full recitation of Mr. Comey's

I qualifications as it is in Intervenor's Brief here, the Appeal Board has not addressed the substantive issue of his qualifications but has rather left such factual determinations to the Licensing Board.

In other words, Intervenor has had ample opportunity to persuade the trier of fact, and perhaps even an appellate tribunal, of the expertness of its witness and has failed.

Now the Intervenor notwithstanding Mr. Comey's death again seeks to convince the Appeal Board that it should reach a different factual conclusion than the Licensing Board as to the merits of Mr. Comey's qualifications.

In support of this attempt Intervenor simply restates the old evidence that it presented to the Licensing Board and Appeal Board previously.

The Intervenor Brief, for all its copious recounting of Mr. Comey's qualifications, propounds no new or additional evidence nor does it present any new issues in this regard.

The qualifications of Mr. Comey were fully explored and assessed by the parties and the Licensing Board.

The Licensing Board, as well as the 6/

parties, were well aware of ALAB-410 which set forth standards to be specifically applied in the case of qualifying security experts.

In most relevant part, ALAB-410 held:

Q6 See, e.g.,

ST FF

RESPONSE

TO INTERVENORS PETITION TO ESTABLISH gUALIFI-CATIONS OF DAVID COMEY AS SECURITY EXPERT FOR DISCOVERY, dated August 14, 1978.

STAFF

RESPONSE

TO INTERVENORS PETITION FOR DIRECTED CERTIFICATION AND APPEAL FROM LICENSING BOARD ORDER OF SEPTEMBER 5, 1978, dated October 26, 1978.

I' before any witness may be shown any portion of a security plan, the sponsor of that witness must demonstrate to the Licensing Board's satisfaction that the witness possesses the technical competence necessary to evaluate it.

Indeed, while indicating that the Licensing Board had properly eschewed Applicant's theory that no "outsider " should be given access to the plan, the Appeal Board in ALAB-410 went on to admonish the Licensing Board to "properly restrict the release of those portions of the plan needed by the Intervenor to litigate its contention or to limit the portions of the plan released in terms of the qualifications of the proposed expert witness".

Id. at 1405.

The Appeal Board mandated in ALAB-410 that the Licensing Board must be satisfied as to the qualifications of the profferred witness.

In so doing, the Licensing Board properly applied traditional legal standards as to the qualification of an expert, i.e., "the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for the truth.'+

Since Intervenor never carried its burden in the first instance of demonstrating to the Licensing Board (trier of fact) that Nr.

Comey possessed the requisite expertness (i.e., "technical competence necessary to evaluate the portion of the plan which [they.l may be shown, Id. at 1404),

such as would aid the Licensing Board, the Board properly concluded that he did not qualify to be shown the security plan.

7/

tlcCorm)c on Evidence (1954),

p. 28-29.

l While the Appeal Board has authority to substitute its judgment for that of the Licensing Board, it has recognized the fact that licensing boards are the Commission's primary fact finding tribunals.

Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1),

ALAB-303, 2 NRC 858, 867 (1975).

Thus, the Appeal Board has held that a finding by a Licensing Board will not be overturned simply because the Appeal Board might have reached a different result had it been the primary fact finder.

Pacific Gas 5 Electric Co.

(Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184, 1187-88 (1975); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC

319, 322 (1972)P j8'uke Power Co.

(Catawba Nuclear Station, Units 1 5 2), ALAB-355, 4

NRC 397, 402-04 (1976);

TVA (Hartsville Nuclear Plant, Units 1A, 2A, 1B 8 2B), ALAB-367, 5 NRC 92, 94 at n.4 (1977); Public Service C.

fit II ~ li (S

b kS i.Ill 1 12)~HRC 33, 42 Ju y 26, 2977), aff'd, CLI-78-1, 7

NRC 1 (January 6, 1978),

aff'd sub.

nom.

New En land Coalition on Nuclear Pollution v.

NRC, 582 F.2d 87~1st Cir. 1978; Consumers Power Co.

Midland Plant, Units 1 5 2), ALAB-452, 6 NRC 892, 1022-23 1977).

Q9 Compare traditional federal case law where it is well established that the question of whether a profferred witness possesses the necessary qualifications to be considered an expert is a question of fact to be determined by the "trial court."

Roberts v. United States, 316 F.2d 489 (1963).

Decisions as to whether a profferred expert ss necessary to the case or is indeed qualified as an expert is a matter left to the discretion of the trier of fact and will not ordinarily be inter-fered with by an appellate body unless there is shown to be clear error or abuse.

Salem v. United States Lines Co.,

370 U.S. 31, 35 (1961);

Sanchez v. Safewa, 451 F.2d 948 1971 See also, Wi more on Evidence Pl E8. 194,

561,

p. 641; McCormick on Evidence

195,

p. 29:

I I

Hence, it is clear that with respect to the matter of Mr. Comey's qualifications to be admitted as an expert for the purpose of reviewing the security plan, the Licensing Board acted within its authority and pursuant to the legal rationale provided by the Appeal Board and should be upheld both as a matter of law and of fact.

Since the Licensing Board committed no legal error or abuse of its discretion, its decision on the qualifications of Mre Comey should be affirmed.

III. THE LICENSING BOARD CORRECTLY DETERMINED THAT THE INTERVENOR'S

RESPONSE

OF JANUARY 19, 1979 WAS A WITHDRAWAL OF PARTICIPATION AND VOLUNTARY DEFAULT ON THE SECURITY CONTENTION.

On January 19, 1979, following the declination of the Appeal Board to take Intervenors petition for directed certification of the Licensing Board's RECONSIDERATION (ALAB-514) and the death on January 5,

1979 of l1re David Comey, Intervenor through its long-time counsel of record filed with the Licensing Board during a recess, a letter entitled INTERVENOR'S

RESPONSE

AS TO PARTICIPATION IN HEARING ON SECURITY PLAN (RESPONSE).

(See pp. 4-10,

~su ra.)

In its

RESPONSE, the Intervenor statedinte, r a1ia, that it would "not be ab1e to participate in the hearing now scheduled for the first week in February as to the adequacy of the Applicant's security plan."

Relying upon this statement, the Licensing Board concluded that the Intervenor had withdrawn their security contention as a "voluntary default under 10 CFR 5 2.707."

(Tr. 9367-9368)

The Intervenor in its Brief, states that the Licensing Board "erroneously and unlawfully inferred from the RESPONSE that Intervenor 'withdrew from the proceeding 'PID, p. 93)" and that it is "clear on its face that the

RESPONSE

was only notice to the Licensing Board that this Intervenor would not be able to participate in the in camera security plan hearing."

(emphasis in original)

Intervenor Brief, p.

12.

However, beyond this bare conclusion, the Intervenor cites no authority in support of its argument that the action of the Licensing Board was improper.

The law is clear that an intervenor may not step in and out (or out and then in) of participation in a particular issue (especially its own) at will.

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1

5 2), ALAB-288, 2 NRC 390, 393 (1975).

And where, as

here, the Intervenor announced that it is "stepping out" and would not participate in the hearing on its contention, the Licensing Board correctly found Intervenor in default pursuant to established Commission law and regulation.~

10/

Faced with this conclusion, the Intervenor further argues that, assuming the

RESPONSE

was a "request to withdraw," the Licensing Board never 10/

According to one Licensing Board, an intervenor who raises an issue and then refuses to actively participate in the hearing may lose his right to appeal the hearing board's decision.

Boston Edison Co.

(Pilgrim Nuclear Generating Station, Unit 2), LBP-76-7, 3

NRC 156 (1976).

granted it or did so at such a late hour that Intervenor had no notice of the "misinterpretation" and no time to rectify it.

Intervenor Brief, p. 12.

At best this argument does not follow logically from one assumption to another and, at worst, is disin'genuous.

Again, the plain words of the

RESPONSE

speak for themselves.

If Counsel for Intervenor did not intend the ultimate result, then there is no such indication in the RESPONSE.

If, as Intervenor concedes

arguendo, the

RESPONSE

was a

request to withdraw (as it clearly appears to be), there appears no driving necessity to issue an order informing Intervenor of what it already knows (since withdrawal is what it declared).

One possible source for this confusion may be the appearance of different counsel Messrs.

Valentine and Jones apparently meant the RESPONSE to be inter-preted exactly as they wrote it, for they never appeared at the hearing nor argued that they wished, perhaps upon reconsideration, to participate.

Rather than admitting that Intervenor SLOMFP may have sought unsuccessfully (at least between January 19 and February 12, 1979) to speak with more than one voice on the security issue, Mr. Baldwin instead has attempted to challenge the Licensing Board's accurate interpretation of the Intervenor's plain actions.

The Intervenor further argues that the Licensing Board's "de facto [sic]

decision" came "on the eve of the hearings",

leaving no opportunity to appeal.

Intervenor Brief, pp. 12-13.

This latter argument, as the former, is likewise deficient, for it is the Intervenor, not the Board, who was untimely in their actions.

The Intervenor

RESPONSE

was filed only two weeks before the hearing was to reconvene to take up the security contention.

The

RESPONSE, through no fault of the Board's, came during its travel to and from California.

The first opportunity to rule on the

RESPONSE

was when the Board returned to the bench.

Almost immediately, and indeed on the eve of security tour and hearing, a new lawyer, unknown to the proceeding began a

flurry of telegrams and eleventh hour arguments.

If any party bears responsibility for the inability of the Board and parties to consider the instant matter in a more relaxed (though no more deliberate or correct) fashion, it is the Intervenor itself.

Finally, Intervenor argues that "because serious security matters are involved (10 CFR 5 2.760(a)),

the Licensing Board nonetheless should have made inquiry into the security issues raised by Intervenor's contention."

Intervenor Brief, p. 13.

Intervenor goes on to quote Louisiana Power 8 Li ht Co. (Waterford Steam Electric Station, Unit 3)

ALAB-242, 8 AEC 847, 849 (1974) for the proposition that "... the best practice in such a situation [i.e., if the intervenor does not appear]

is for the Board to make a thorough inquiry as to the issues raised by the absent intervenor despite his absence."

The Staff, Applicant, and Board apparently agreed since that is precisely what was done.7 The Board made ciear, as indicated

~su ra, at 21, that upon the request of the Staff and the Applicant it would conduct the security hearing and expected "a thorough examination of the security system."

(Tr. 9107)

On February 12,

1979, an in camera hearing and plant security tour were conducted by the Licensing Board.

As a result, the Board found, "that the security plan complies with all applicable NRC regulations."

PID, p. 93-94.

Based upon a fair reading of the clear language of the RESPONSE together with the lack of further communication from and absence of long-time counsel on this contention, the Licensing Board acted reasonably and within well established legal principles in determining that Intervenor had withdrawn its participation and voluntarily defaulted as to its contention.

The Licensing Board did not abuse its discretionary authority nor err in this matter.

IV.

THE LICENSING BOARD CORRECTLY DETERMINED THAT INTERVENOR FAILED TO MAKE THE GOOD CAUSE SHOWING NECESSARY TO REINSTATE THE DEFAULTED CONTENTION.

Intervenor complains that it was prejudiced by the Licensing Board's denial of Mr. Baldwin s participation in the security matter.

Inter-venor Brief, pp. 15-20.

In essence, Intervenor's assertion is that it was entitled, as a matter of right, to have Mr. Baldwin admitted to the

~11 See also Northern Indiana Public Service Co. (Bailley Generating Sta-tion, Nuclear-1, ALAB-224, 8 AEC 244, 251 (1975);

10 CFR 5 2.707(b).

proceeding in order that it be represented by counsel for purposes of participation on the security tour, cross-examination of Staff and Applicant witnesses at the security hearing, and filing an appeal.

We cannot agree.

The facts surrounding Mr. Baldwin's attempts to inject himself into the proceeding first for a limited appearance representing Friends of the Earth

( FOE) and then FOE and Congressman Dellums, later by several times asserting that he represented SLOMFP on the security matter, and finally, when the above failed, asserting that he represented Mrs. Elizabeth Apfelberg and the Ecology Action Clubare set out in the STATEMENT OF THE CASE (Background).

~su ra, pp.

6-9.

This sequence is only mentioned here since Intervenor now attempts to suggest that Mr. Baldwin was somehow mistreated by the Licensing Board, Intervenor Brief, at 15-17.

But it was Mr. Baldwin himself who set the "...context for this sad incident."

Intervenor Brief, p. 16.

Neither the Board nor the parties were acquainted with Mr. Baldwin when his telegram arrived announcing his intention to participate on the security tour of the Diablo Canyon Nuclear Power Plant.

Even more striking is that neither counsel for Joint Intervenors, Mr. David Fleishaker nor long-time counsel for SLOMFP on the security conten-tion, Messrs.

Valentine and Jones, seemed aware of Mr. Baldwin's role I

~12 See Tr. 9098.

or status.

Neither Messrs.

Valentine or Jones, nor SLOMFP themselves ever indicated to the Board or the parties that a

new attorney was associating with or representing them in the case./

Yet Intervenor SLOMFP was present throughout much of the actual hearing sessions.

llhen taken as a whole and considered in light of the sensitive nature of the contention at issue the sufficiency of the security planthe Board (as well as the parties) was rightfully concerned and skeptical regarding the introduction of new counsel. But it was not, in major 14/

part, Mr. Baldwin's credentials that restricted his participation in the security hearing.

Rather, it was simply that the Licensing Board had reasonably interpreted INTERVENOR RESPONSE of January 19 to be a

withdrawal and, consistent therewith, determined that Intervenor had voluntarily defaulted on its contention.

As such, it was Intervenor and not the person of Mr. Baldwin that was restricted from participation.

The gravamen o'f the issue here is thus whether the Board correctly determined that failure by Intervenor to show or attempt to show good cause nullifies that party's effort to reinstate the defaulted contention.

13/

In light of the instant Appeal, it appears that Messrs.

Valentine and Jones consider themselves still counsel to SLOMFP on this matter.

There has never been any notice of whether or when Mr. Baldwin associated with them.

~14 It should be remembered that long-time counsel for SLOMFP, Messrs.

Valen-tine and Jones, had become well known to Staff and particularly appli-cants and had signed protective orders respecting their involvment in the security plan.

It is true that a voluntary withdrawal is "without prejudice" in that it need not constitute a legal bar to the later reinstatement of the p

h I

h ig fg d

~Ni Power 8 Li ht Co.

(Grand Gulf Nuclear Station, Units I 8 2), LBP-73-41, 6 AEC 1057 (1973).

The factors to be considered in a good cause showing are generally the same as those'found under 10 CFR 2.714(a) with primary emphasis on the delay of the proceeding, prejudice to other parties, and adequate protection of the intervenor's interests.

There was no averment by Intervenor as to why, having led the Board and parties to believe and finally for the Board to rule that the contention had been "voluntarily defaulted,"

good cause existed to allow intevenor to resurrect the contention and its participation in it.

First, there was no attempt to persuade the Licensing Board that good cause existed to permit Intervenor to resurrect its security contention.

The introduction of fresh counsel raised the reasonable question of what contribution he could make that previous counsel had stated they could not.

Recalling that Intervenor, through its long-time counsel had stated in its RESPONSE that, given the circumstances, "it is impossible for this Intervenor to prepare, either for significant cross-examination...

or to present affirmative evidence to support intervenor's contention," it became incumbent on Hr. Baldwin to show that circumstances had changed to suddenly make Intervenor's partici-

\\

pation meaningful.

moreover, given the time usually necessary for

meaningful participation (e.g.,

preparation of cross-examination)

Mr. Baldwin never indicated how, in such a short space of time, he could do what Messrs.

Valentine and Jones indicated they could not.

Public Service Co. of Oklahoma (Black Fox Station, Units 1

8 2),

ALAB-397, 5 NRC 1143, 1149 (1977).

Despite the fact that this concern was voiced by the other parties and the Board, no information or showing was forthcoming at any time from Mr. Baldwin.

Second, Mr. Baldwin gave every indication that far from adding anything significant, his participation would actually delay the proceeding and prejudice the other parties.~

On February 12, 1979, during his oral 15/

presentation attempting to pursuade the Licensing Board that he should be permitted to participate, Mr. Baldwin candidly admitted that, far from intending to adduce evidence of material assistance to the Board through his cross-examination, his would be a fishing expedition.

His remark was "well, we don't really know what we'e going to find out.

But I think we could probably say by now that we will find out something."

(Tr. 9361).

~15 Distsnguss

here, Louisiana Power 8 Li ht Com an (Waterford Steam Electric Station, Unit 3), ALAB-117, 6 AEC 261 1973 where the entry of new counsel on appeal warranted good cause for a delay in the case to give new counsel an opportunity to prepare an appellate brief.

Public Service Electric 8

~GC (A1 i

N I

8 ti S i, i

15

. I.

2 NRC 702, 703 (October 14, 1977).

In the instant case, 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 radicall~~

changed the position taken by counsel in its January 19, 1979 letter, could not have been made in a more timely manner.

Third, the Licensing Board, in effect, did adequately protect Intervenor's interest by taking up the security contention as its own matter and making a thorough inquiry into it. ~Bailie, supra, Waterford, supra.

Hence, despite no requirement that it do so, the Licensing Board held an in camera hearing session on the security matter on February 12, 1979.

Intervenor further argues that by denying the appearance of Mr. Baldwin, the Licensing Board denied its right to be represented by attorneys "of its own choice."

Intervenor Brief, p. 17.

This is simply incorrect.

Intervenor SLOMFP has been represented for purposes of its security contention for years by able counsel.

There has been no indication to the Licensing Board that the Intervenor was dissatisfied or wished to replace its counsel.

In any event the Board did not deny'Mre Baldwin's asserted representation of Intervenor SLOMFP (though pursuant to its authority to regulate the conduct of hearings (10 CFR 5 2.718) it is conceivable that Board could be called upon in certain circumstances to rule whether an attorney may be permitted to appear in a proceeding).

The Board did not need to reach the admission question since Mr. Baldwin sought appearance for one specific matter, the security contention.

It was the matter which was not open to participation by Mr. Baldwin, or for that matter Intervenor, not whether Intervenor could be represented

\\

by another attorney.

l

27 Intervenor argues that its rights were prejudiced since ter. Baldwin was not allowed to participate in cross-examination or appeal from adverse findings.

Intervenor Brief, p.

17.

There is no argument that an intervenor may pursue its case entirely through cross-examination.

Tennessee Valle Authorit (Hartsville Nuclear Plants, Units 1A, 2A, 1B 8 2B), ALAB-463, 7 NRC 341, 356 (1978).

Moreover, an intervenor may cross-examine a witness on those portions of his testimony which relate to matters that have been placed in controversy by a party to the proceeding, as long as intervenor has a

discernible interest in the resolution of the particular matter.

Northern States Power Com an

, (Prairie Island Nuclear Power Plants, Units 1

8 2), ALAB-244, 8 AEC 857, 868 (1974).

However, Intervenor's reliance on Prairie Island (Intervenor Brief, p. 18) is misplaced for several fundamental reasons.

First, in Prairie Island the intervenor (Nr. Gadler) was present at the actual hearing while another intervenor's contention was. under consideration.

Hence, as the Appeal Board there

noted, the Rules of Practice do not require that, "... an intervenor must be benched on the sidelines during trial of contested issues other than those derived from his own intervention petition."

8 AEC at 868.

In the instant case,

however, Intervenor SLONFP had declared withdrawal from participation in the security mattter and, specifically, that it would not engage in cross-examination.

As already discussed, participa-tion in a hearing is not permitted on a revolving door basis or 'at the

1 whim of a party.

Prairie island, ALAB-2BB, ~su ra.

Having declared itself "out," this intervenor may not now be heared to argue that it was "sidelined" or "excluded"it "sidelined" and "excluded" itself.

Second, by considering the January 19

RESPONSE

as a voluntary default of the security contention, the matter was no longer a "contested" issue before the Board.

The intervenor had relinquished any "discern-ible interest" it had in the contention.

That left the Board to take the matter up as its own or not to hear the matter at all.

By deciding to hear the matter as its own, the Board clearly had authority to determine who may or may not appear.

Another difference between Prairie Island and the instant case which must be accorded significant weight is the factual context.

In Prairie Island the hearing was conducted in public on a technical but not sensitive issue.

guite the opposite obtained in the Diablo Canyon hearing.

The issue was the security plan of the plant--an extremely sensitive matter which required, inter alia, an in camera hearing session.~

The Licensing Board quite properly established and maintained a stiffer burden to participation in this matter than it 16 n in camera hearing on the security contention had been anticipated all along.

That is, prior to the intervenor's withdrawal it was expected that the parties, including Mr. Valentine, would conduct the hearing on the security contention at an in camera session.

might otherwise on a contention of a less sensitive nature being aired in public.

Again, it was the Intervenor that withdrew itself and, while counsel new to the proceeding sought to appear, Intervenor did not meet the burden of establishing that it had a discernible interest in what had become a Board matter.

And, Intervenor never established that it should be permitted to participate nevertheless.

Moreover, Intervenor certainly never resurrected or sought to resurrect the contention as its own.

17/

It is well established that the Licensing Board has clear authority to regulate the course of the proceedings including the nature and extent of cross-examination.

10 CFR 55 2.718, 2.757(c).

For example, the Licensing Board has a duty to monitor and restrict cross-examination which is repetitious, argumentative or cumulative.

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 5 2),

ALAB-252, 8 AEC 1175, aff'd., CLI-75-1, 1 NRCl (1975); Tennessee Yalle Authorit (Hartsville Nuclear Plant, Units 1A, 2A, 1B 5 2B),

ALAB-367, 5 NRC 92 (1977); Prairie Island, ALAB-244, ~su ra.

Thus, the general proposition that no party has a right to unfettered or unlimited cross-examination is particularly applicable here.

Indeed, 17/

As already discussed,

~su ra, Intervenor did not attempt to show why or how its January 19 withdrawal should be considered as nugatory.

By intervenor failing to establish good cause to re-enter its contention, the Board properly considered the security matter on its own.

the very case on which intervenor relies is instructive on this central point.

In Prairie Island, ALAB-244, the Appeal Board stated:

We need add only that, if in doubt as to the potential worth of an intervenor's cross-examination on another party's issue, there is nothing to preclude a board from insisting upon an advance indication respecting what the intervenor will attempt to demonstrate or ascertain by his interrogation.

If it then appears that, in whole or in par t, the cross-examination will be irrelevant, repeti-tious or otherwise of no value to the development of a full record on the issue at hand, the board can preclude or limit it accordingly.

[fn deletedj 8 AEC at 869.

Thus, where as here, the Licensing Board is apprised by Intervenor that were the Board to permit the re-entry of the Intervenor into the pro-ceeding the Intervenor would likely engage in cross-examination which was not likely to be relevant or of value to the development of a full

record, the Board properly precluded such participation.

The record is clear that Intervenor made no showing as to how circumstances had changed since its January 19 RESPONSE to render it any more capable of conducting meaningful cross-examination.

On the contrary, Mr. Baldwin indicated that he did not know where cross-examination would lead or

how, beyond serving as late discovery, it might be useful.

18/

Hence, the Licensing Board acted reasonably, deliberately, and well within its authority by not permitting Intervenor to step back into a

~18 See, Tr. 9361.

proceeding on a particularly sensitive

issue, through new counsel, to participate in a way which Intervenor itself admitted would not be meaningful.

Finally, Intervenor's argument that it is prejudiced with respect to findings of fact and conclusions of law and appellate

redress, again misses the point.

This Intervenor voluntarily defaulted from the very matter it now complains it is precluded from appealing.

That notwith-

standing, Intervenor did file extensive substantive exceptions on October 13, 1979, followed by the present appeal brief.

So far none of these documents have been rejected.

For the reasons given above, the Intervenor's January 19

RESPONSE

waived its right to participation in the security hearings and the Licensing Board correctly concluded that Intervenor did not show or attempt to show good cause as to why it should be permitted to resurrect the security contention and participate in it.

E.

CONCLUSION Based on the foregoing, Intervenor's

appeal, in its totality, is without merit.

The relief requested by Intervenorreversal of the Licensing Board's Partial Initial Decision of September 27, 1979, Part IV, the Licensing Board's orders relating to the qualifications of the Intervenor's profferr ed

32 security expert and the Licensing Board s determination regarding the Inter-venor's default on the security contention should be denied in toto and the Licensing Board's decisions affirmed.

Respectfully submitted, Ma c R. Staenberg Counsel for NRC Staf

r

~

~

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Hatter 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.

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN OPPOSITION TO EXCEPTIONS OF INTERVENOR SLOMFP TO PART IV OF PARTIAL INITIAL DECISION OF SEPTEMBER 27, 1979" dated December 18, 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 18th day of December, 1979.

• Richard S.

Salzman, Esq.,

Chairman Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.

C.

20555

• Alan S. Rosenthal, Esq.

Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• Dr.

W.

Reed Johnson 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

• Mr. Glenn 0. Bright Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.

C.

20555 Hrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 Dr. William E. Hartin Senior Ecologist Battelle Memorial Institute

Columbus, Ohio 43201 Philip A. Crane, Jr.,

Esq.

Paci fic Gas and El ectri c Company Room 3127 77 Beal e Street San Francisco, Cali fornia 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

4623 More Mesa Drive Santa Barbara, California 93105 Mrs Raye Fleming 1920 Mattie Road Shell Beach, California 93449 Hrs. Sandra A.

Silver.'760 Alisal Street San Luis Obispo, California 93401

~

~

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 Janice E. Kerr, Esq.

Lawrence

g. Garcia, Esq.

350 McAllister Street San Francisco, California 94102 Mr. James

0. Schuyler Nuclear -Projects Engineer Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106 Bruce Norton, Esq.

3216 North 3rd Street Suite 202 Phoenix, Arizona 85102 David S. Fleischaker, Esq.

Suite 709 1735 Eye Street, N.W.

Washington, D.

C.

20006 Mr. Gordon Silver 1760 Alisal Street San Luis Obispo, California 93401 John R. Phillips, Esq.

Simon Klevansky, Esq.

Margaret Blodgett, Esq.

Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 Arthur C. Gehr, Esq.

Snell 8 Wilmer 3100 Valley Center Phoenix, Arizona 85073

• Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D. C.

20555

• Atomic Safety and Licensing Board 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 Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue - Suite K

San Jose, California 95125 John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. 0.

Box 112 San Luis Obispo, California 93406 Andrew Bal dwin, Esq.

124 Spear Street San Francisco, California 94105 Herbert H.

Brown Hill, Christopher 8 Phillips, P.C.

1900 M Street, N.W.

Washington, D.

C.

20036 J. Anthony Klein Legal Affairs Secretary Governor's Office State Capitol Sacramento, Ca.

95814

.l4-Mare

. Staenberg Cou sel for NRC Staff

t go