ML16341B536
| ML16341B536 | |
| Person / Time | |
|---|---|
| Site: | Fort Calhoun  |
| Issue date: | 02/10/1981 |
| From: | Clark R Office of Nuclear Reactor Regulation |
| To: | |
| Shared Package | |
| ML16341B537 | List: |
| References | |
| NUDOCS 8103030885 | |
| Download: ML16341B536 (10) | |
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Na ITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATTACHMENT I BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY Diablo Canyon Units 1 and 2
Docket No. 50-275 Docket No. 50-323 (Low Power Motion)
OBJECTIONS OF PGandE TO ASLB ORDER DATED FEBRUARY 13 1981 Pacific Gas and Electric Company (PGandE),
pursuant to 10 CFR 2.752(c), files objections to those 'portions of the Prehearing Conference Order dated February 13, 1981 admitting Joint Intervenors'ontentions 4,
5, ll, 13, and 24.
In the first place the Board, although noting that neither the Governor nor the Joint Inter-venors sought to establish good cause for admitting new contentions or reopening the record on old con-tentions aside from their reliance on NUREG-0737."
(Order at 16) nevertheless admitted the five above-numbered contentions.
The Board apparently is of the opinion that mere mention in NUREG-0737 is sufficient to make an issue the subject of a valid contention for litigation in a public hearing (Order at 12).
Clearly, this is an improper and incorrect interpretation of the Commission's Statement of Policy dated December 18, 1980 (45 F.R.
85236).
This statement very clearly provides "The Commission believes that where the time for filing contentions has expired in a given case, no new TMI-re-lated contentions should be accepted absent a showing of good cause and balancing of the factors in 10 CFR 2.714(a)(1).
The Commission expects adherence to its regulations in this regard.
Also, present standards governing the reopening of hearing records to consider new evidence on TMI-related issues should be adhered to.
Thus, for example, where initial decisions have been
- issued, the record should not be reopened to take 8>030so $9$
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evidence on some TMI-related issue unless the party seeking reopening shows that there is significant new evidence, not included, in the record, that mate-rially affects the decision."
(45 F.R.
85238)
Since the Joint Intervenors. totally failed to make any such showing they are not entitled to have any of their contentions
- accepted, and those portions of the Board's order which purport to do this are wrong and r
should be amended.
An additional defect in the Board's order is the use of the wrong standard for reopening records.
At page 12 the order speaks in terms of "good cause."
However, this is the standard for accepting late-filed contentions.
As quoted
- above, the Statement of Policy pro-vides that in addition to good cause and a balancing of the factors in 10 CFR 2.714(a)(1) present standards governing the reopening of hearing records to consider new evidence on TMI-re-lated issues should be adhered to.
Thus for exam le, where initial decisions have been issued the record should not be reo ened to take evidence on some TMI-related issue unless the art seekin reo enin shows that there is si ificant new evidence not included in the record that materiall affects the decision."
(45 F.R. 85238)
(Emphasis added)
Further, with respect to Contentions 4 and 5, it is well settled that emergency response plans are not proper sub jects for litigation in connection with issuance of licenses to load fuel and conduct low power tests.
Footnote 9 to the Statement of Policy provides in full as follows:
. "Consideration of applications for an operating license should include the entire list of requirements unless an applicant specifically requests an operating license with limited authorization (e.g., fuel loading and low-power testing)."
Prior to issuance of NUREG-0737 it was established under NUREG-0694
-and the Commission's Statement of Policy dated June 16, 1980 (45 F.R.
41737) that updated emergency preparedness requirements were required before a full-power license as opposed to a license to load fuel and conduct low-power tests (NUREG-0694 p. 25).
There is nothing in the revised Statement of Policy and NUREG-0737 to indicate that the Commis-sion intended any change in this regard.
Indeed the repetition as Footnote 9 of Footnote 8 in the Statement of Policy dated June 16, 1980 mandates a contrary conclusion.
Accordingly, the Board acted improperly in granting Joint Intervenors'ontentions 4 and 5.
Finally, g 109(a)(2) of P.L.96-295 (94 Stat.
784) provides that if an emergency preparedness plan which complies with the Com-mission's guidelines is not in effect the Commission is authorized to issue an operating license if it determines that there exists a State, local, or utility plan which provides reasonable assurance that public health and safety is not endangered by operation of the facility
'oncerned."
The NRC Staff has determined that the existing state,
- local, and-utility emergency plans provide sufficient assurance and protection of the public health and safety for purposes of a license to load fuel and conduct low-power tests (SER Supplement 10, page III B-2, NUREG-0675).
This position is supported by the language in 10 CFR 50.47(c) which pro-vides for issuance of an "operating license" even if the requirements
- of 10 CFR 50.47(b) have not been met so long as there is reasonable assurance the public health and safety is not endangered.
Accordingly, the Board should not have accepted Contentions 4 and 5 for purposes
f
of PGandE's motion for a license to load fuel and conduct low-power tests.+1 If the Board choses not to revise its order in the light of the objections presented herein PGandE urges the Board to certify PGandE's objections to the Commission for a decision pursuant to 10 CFR 2.718(i).
The Commission in the Statement of Policy encouraged certifications
. where Boards are in doubt as to the Commission's intentions in approving NUREG-0737."
(45 F.R.
85238)
PGandE is preparing a separate request for certification for filing with the Commission.
Respectfully submitted, MALCOLM H.
FURBUSH PHILIP A. CRANE, JR.
DOUGLAS A. OGLESBY Pacific Gas and Electric Company P.
O. Box 7442 San Francisco, California 94106 (415) 781-4211 ARTHUR C.
GEHR Snell 6 Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 (602) 257-7288
+1 10 CFR 50.57(c) under which PGandE seeks issuance of a low-power testing authorization expressly limits contentions to those relevant to the activity to be authorized.
Joint Intervenors'ontentions 4 and 5 are irrelevant to fuel load and low-power testing.
BRUCE NORTON Norton, Burke, Berry 6 Junck 3216 North Third Street Suite 300 Phoenix, Arizona 85012 (602) 264-0033 Atto ey for Pac' Gas and Elec i o
any Phalli A. Cran
, J Dated:
February 25, 1981
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