ML16341C246
| ML16341C246 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 11/09/1984 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Ottinger R HOUSE OF REP., ENERGY & COMMERCE |
| Shared Package | |
| ML16341A376 | List: |
| References | |
| NUDOCS 8411210178 | |
| Download: ML16341C246 (6) | |
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CHAIRMAN UNITED STATES CLEAR REGULATORY COMMISSI WASHINGTON, D. C. 20555 November 9, -1984 The Honorable Richard L. Ottinger, Chairman Subcommittee on Energy Conservation and Power.
Committee on Energy and Commerce United States House of Representatives Washington, DC 20515
Dear Nr. Chairman:
This is in response to your October 26, 1984 letter regarding the Commission's decision on Diablo Canyon Unit l.
We believe that the position of the Nuclear Regulatory Commission and of the government in the litigation. in the Diablo Canyon case is accurately reflected in the brief which has been filed in the Court of Appeals.
Since this matter is before the Courts, and in light of your request for a Department of Justice investigation, we also believe it inappropriate to respond in more detail to the statements made in your October 26 letter.
The Commission's position on this matter will be presented to the Court of Appeals in a brief which counsel is preparing in opposition to Petitioners'otion to supplement the record of the Diablo Canyon case.
We will forward a,copy of that brief to you when it is filed on November 13, 1984.
The facts in Philadel hia News a ers v.
NRC, which you cite, are not analogous to facts of the Commission's decision on earthquakes and emergency planning in Diablo Canyon.
The transcripts leading to the decision may be withheld from public disclosure under exemption 10 of the Sunshine Act.
The Commission believes that these transcripts should not be publicly released.
Commissioner Asselstine has the followin comments:
I believe that the brief which has been filed by the Comission in the Court of Appeals in the Diablo Canyon case accurately reflects the majority's position.
The problem is with the Comnission's position and how that position was developed rather than with the brief.
In that regard, I agree entirely. with the descriptions of the COIhmission's deliberations in the Diablo Canyon case which were contained in your letter.
In reaching its decision in the Diablo Canyon case, the Commission ignored the advice of its legal advisors that the question of the complicating effects of earthquakes on emergency planning was most 'probably a material issue, and that
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'were entitled to a hearing on the issue under section 189
- a. of the Atomic Energy Act of 1954.
The Commission distingu'ished between the complicating effects of earthquakes on emergency planning and the complicating effects of other natural phenomena, even though the Commission's legal and technical advisors told'he Commission that there was no factual basis in the record of the Diablo Canyon pro-ceeding for doing so.
The Commission concluded that'he probability of an earthquake which could affect emergency plannT'ng:is much lower than the probabilities of other natural phenomena which are routinely considered by the Commission even though the Commission's legal and technical advisors told the Commission that there was no factual basis in the Diablo Canyon record to support this conclusion.
The Commission ignored the possibility of the simultaneous occurrence of an emergency at the plant (e.g.
a fire) which could require emergency response and an unrelated earthquake which could affect emergency response features such as communication and emergency response to the site, even though the Commmission's legal and technical advisors told the Commission that this approach was fundamentally different than the Commission's approach for considering the complicating effects of all other natural phenomena on emergency planning and there was no factual basis in the Diablo Canyon record for adopting this different approach for earthquakes.
The'Commission relied on material not in the record of the Diablo Canyon proceeding to conclude that.the Diablo Canyon emergency plan is sufficiently flexible to accommodate the complicating effects of earthquakes on emergency planning despite repeated warnings that such reliance on extra-record material was inappropriate and legally'mpermissible.
Finally, the Commission's decision was motivated solely by the objective of avoiding delay in issuing a full-power license for the Diablo Canyon plant.
The Commission refused to. recognize the right to a hearing on this issue because such a hearing could del.ay the issuance of a full-power license for the plant.
To provide a
semblance of public comment on the issue of the complicating effects of earthquakes on emergency planning, the Commission decided to conduct a generic rulemaking on this issue.
However, it is apparent from the proposed rule that the Commission is intent on merely codifying its Diablo Canyon decision, and any opportunity for public comment on the issue will be meaningless.
The foregoing abuses in the Commission's conduct of the Diablo Canyon adjudicatory proceeding are readily apparent to any objective reader of the transcripts of the Commission's deliberations in this case.
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the Commission's deliberations in the Diablo Canyon: case.
However, I believe that the public interest in bringing this extraordinary situation to light; and in preventing similar abuses in future cases,
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Richard L. Ott er 3
w weighs strongly in favor of making those trarscripts publicly available and outweighs any argument that could be made in favor of confidentiality.
I therefore believe that the transcripts should be publicly released.
Commission views reaardin Commissioner Asselstine's comments:
The Commission strongly disagrees with Commissioner Asselstine's criticisms of its Diablo Canyon decision process.
The Commission believes that there have been no abuses and rejects categorically Commissioner Asselstine's speculation as to the motives of the majority in reaching its decision.
Simply because Commissioner Asselstine did not prevail is not a valid reason for him to castigate the majority, impugn their motives, and use his disagreement as a
basis to urge release of the transcripts to the public.
As a matter of fact, his statements are disturbing because this kind of disclosure of preliminary exchanges of views and thoughts of Commissioners and their advisors is destructive of the collegial exchange of Commissioner views and frustrates the testino of preliminary adjudicatory positions in closed meetings before they become final.
The Commis'sion also strongly disagrees with Cowoissioner Asselstine's assertion that future opportunities for coranent on a proposed rule will be meaningless.
The Commission is proceeding with this rulemaking in good faith in accordance with established procedures.
Sincerely,
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Nunzio J. Palladino cc:
Rep.
Carlos Moorhead