ML17083A255
| ML17083A255 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 02/15/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-580, NUDOCS 8002220174 | |
| Download: ML17083A255 (30) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
- Salzman, Chairman Dr.
W.
Reed Johnson Thomas S.
Moore FEB 19880
@go GX 8~
C) ha&
)
In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
)
(Diablo Canyon Nuclear Power Plant,)
Units 1 and 2)'
)
Docket Nos.
Paul C. Valentine, Palo Alto, California, W. Andrew Baldwin and Yale I. Jones, San Franciscog Calxfornxa, argued the cause and 'filed a brief for intervenor San Luis Obispo Mothers, for
- Peace, a'pyellant.
- (.J,,
~
Mr. Bruce Norton, Phoenix, Arizona, argued "the; cause an
, with Messrs.
Malcom H. Furbush and Phili A. Crane, Jr.,
San Francisco, Cali orna.a, an Arthur C. Gehr,
- Phoenix, Arizona, filed a brief for applicant Pacific Gaa and Electric Company,
~a ellee.
Mr. James R. Tourtellotte argued the cause and Mr. Narc R.
taen erg iled a brief for the Nuclear Regulatory Commission staff.
DECISION February 15, 1980 (ALAB-580) 1.
Among the contentions that intervenor San Luis Obispo Mothers for Peace has been pressing in this operating license proceeding are challenges to tne adecruacy of the Pacific Gas and j DDaQ~~ >><
Electric Company (PG&E) physical security plan for protecting the Diablo Canyon nuclear power facility from industrial sab-1/
otage.
A cc,.bination of circumstances (including the acci-dental dea-,'
intervenor's proffered expert witness) led to several Lice:.'ing Board rulings culminating in the Board's holding that 'ntervenor had "voluntarily defaulted" on this issue.
The to hearing c.
therefore precluded intervenor from going
2/
security plan contentions.
Neverthe'...:-,
at the urging of both the applicant and I
the staff the Board below inspected the security features of the nuclear plant and took evidence in camera about their I
adequacy -- albeit in the absence of the'intervenor.
On the basis of that inspection and on the evidence presented to it at the closed hearing, the Licensing Board made an unequivocal finding "that the PGGE security plan complies with all appli-3/
cable NRC regulations.
1/
The requirements for physical security plans for nuclear power plants are detailed in 10 C.F.R. 573.55 (1979 Rev.).
2/
LBP-79-26, 10 NRC (slip opinion, Part IV, at 93)
(September 27, 1979).
3/
Id. at (slip opinion at 93-94).
The Licensing Board's decision also considered whether the facili"~ is adequately designed to withstand earth-quakes.
As explained in the Appeal Panel Chairman's January 4,
- 19SO, memorandum (unpublished),
intervenor was represent d on the security plan and earthquake issues bv diff "ent counsel with offices in different cities.
T.';e matters were tried separately and respec-tive counsel f'led exceptions and briefs independently.
For convenienc (and in the absence of any objection) we have treated the matters as two separate appeals; earthquake contentions are to be taken up by another appeal board w'th two technical members.
On this appeal from that ruling, intervenor generally asserts that the Licensing Board erred by (1) finding inter-venor's expert witness unqualified to examine the Diablo Canyon security plan and to testify about its adequacy; (2) holding intervenor had withdrawn from the proceeding by "voluntary de= =ult"; (3) inspecting the Diablo Canyon facility's secur.'"y features in the company of the applicant and the staff's representatives but not intervenor's; and (4) barring intervenor's substitute counsel from the in 'camera evidentiary hearing on the adequacy of the security plan, We need not, however, resolve any of these questions because of a circumstance no party foresaw.
While con' sidering this appeal, we were unable to determine precisely what documents or other material the Licensing Board relied upon when making its security plan finding.
Accordingly, on February 6,
- 1980, we requested that Board to identify all such materials.
The Board responded on February 11th with a memorandum stating that "[t]he transcript of the in camera hearing, which contains the prepared testimony of the witnesses, is the only 'document'onsidered by the Board.
The Board also visually inspected various features of the security system during the sit visit."
Nhat is not
'anifest from he Licensing Board's response is, first, that either the in camera hearing transcript nor f
- any other pa t of the reco 9 contains the Diablo Canyon physical sec looked at it rity plan and 4/Por the re that in thes circumstance
- second, that the Board never sons which follow, we believe the Board's finding of regulatory compliance c hnot stand.
2.
The evidence addu ed at the closed hearing wa quite limited The applica t offered two witnesses whose tes-timony amoun d.to no more than the expression c. -heir "opinion" th t the securit plan met the Commissi".'s re-quirements.
7he basis for this conclusion was not questioned by the Board Staff witne ses also testified, mainly to explain the taff 's method Logy for evaluating the Diablo Canyon secur ty plan and t< list briefly the plan's salient features.
L stly, the sta f's Security Plan Evaluation Report, whic.'as only sli~ itly more expansive than the staff testim
>y, was place<
into the record as if read.
Relianc~
on such seco; Sary sources is no substitute for examinin<
the plan's a
=ual provisions.
Our own review 4/
By way of this Licensi:
had loo.'ounsel members of further ch Board indepen p Board Panel
~d at the Dia.
=esponded tha and conf irmed
".k, the Chairman and one membe"
'ntly inquired of Counsel to the specifically whetner the Board
!.o Canyon security plan itself.
he had checked with the Board
=hat the Board had not done so.
5/
of that document confirms this.
There are instances where the plan's conformity with applicable Commission regulations is not self-evident -- and some where it is even doubtful even when considered in the light of the evidence adduced at the 6/
closed hearing.
Xt may well be that these apparent discre-pancies can easily be explained on pertinent inquiryI that was the purpose of the 'in camera hearing session.
We do not believe it possible for the Board to have found that the security plan conforms fully to all regulatory requirements without having at least read that plan.
The Board's security finding is, therefore, legally impexmissible.
To be sure, were the Licensing Board correct that inter-venor had defaulted -- a question we 'do not decide -- there
\\
arguably may have been no need. for the Board to pass on the security plan contentions.
A hearing is not mandatory in an operating license proceeding and a board need decide only con-5/
Upon examining the in camera record, we noted the absence of the security plan and proceeded to obtain a copy from its staff custodian on the mistaken assumption that the:
Licensing Board had returned it to him for safekeeping.
As mentioned, the Licensing Board never had the plan at all.
6/
The regulatory requirements of section 73.55 coupled with the complexities of the plan are such that a brief hearing, even when supplemented by an hour's walking tour of the plant, are insufficient to dispense with actual examina-tion of the plan.
7/
tested issues.
But a board is not barred from looking into other concerns where it finds a serious safety issue 8/
that merits further exploration.
The adequacy of a security 9/
plan can certainly be such a matter.
- moreover, not only the intervenor but the applicant and the staff both urged that 10/
the Board review the Diablo Canyon security plan.
Having undertaken to perform that task -- and here we think it had little choice but to do so -- the Board was bound to inquire diligently into the sufficiency of the plan's provisions.
Ne do not understand the staff or the applicant, in asking for 11/
that review, to have been suggesting anything else.
No conceivable good is served by making empty findings in the absence of essential evidence.
Thus the unequivocal finding that the security plan "complies with all applicable NRC regulations" -- where the Licensing Board never saw the plan--
7/
Cincinnati Gas 6 Electric Co.
(Zimmer Station),
ALAB-305, 3
NRC 8, 9
1976); Gulf States'tilities Co.
(River Bend
- Station, Units 1
6 2), ALAB-183, 7 AEC 222, 226 fn.
10 (1974).
I 8/
Consolidated'dison Co. of'. Y. (Indian Point Unit 3),
CLI-74-28, 8
AEC 7
(1974);
10 C. F. R.
552. 760a and 2. 104 (c).
9/
Pacific Gas
& Electric Co.
(Diablo Canyon Plant, Units 1
6 2) f CLI 77 23 g 6
NRC 455 p
456 (1977) 10/
10 NRC at (slip opinion at 93).
Surprisingly, neither party offered the security plan into evidence or asked that official notice be taken of it.
"The staff has the obligation to lay all relevant materials before the Board to enable it adequately to dispose of the issues before it."
Conso'lidated Edison Co. of N. Y. (Indian Point
But, given the Board's determination to evaluate the security plan, the staff 's failure to ask formally that it be noticed does not excuse the Board's failure to look at it or, alter-natively, to state why it, did not find it necessary to review the actual plan.
is so much waste ink.
Of course circumstances may arise where a,board might determine that a thorough inquiry was not necessary.
But in that case its minimum obligation would be to acknowledge the fact and to explain it.
Here the Licensing Board did neither.
Moreover, it is a statutory requirement that the adjudi-catory decisions of this Commission stand or fall on the 12/
basis of the record on which they rest.
The Administrative Procedure Act (to which NRC proceedings are specifically sub-13/
ject
) mandates in pertinent part that "[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision 5 U.S.C. 5556(e).
Given the duty to decide in accordance with the facts provided, "[a] finding without evidence is arbitrary and baseless,"
ICC v. Louisville
& N.
R. Co.,
227 U.S.
88, 91 (1913) -- a principle that has con-14/
stitutional underpinnings.
Accordingly, the Board's security 12/
A licensing proceeding is an adjudication within the meaning of the APA.
Porter County Ch'apter v.
- AEC, 533 F.2d 1011, 1019 (7th Cir.), certiorari denxed, 429 U.S.
945 (1976); Citizens for a Safe Environment v.
- AEC, 489 F.2d 1018, 1021 (3rd Cir. 197 ); Siegel v.
- AEC, 400 F 2d 778I 785 (D ~ C ~ Cir. 1968)
~
13/
14/
42 U.S.C.
52239(b);
see also 5 U.S.C.
0559.
As the Court explained (227 U.S. at 91):
"if the govern-ment's contention is correct, it would mean that the Com-mission had a power possessed by no other officer, ad-ministrative body, or tribunal under our government.
Xt would mean that, where rights depended upon facts, the Commission could disregard all rules of evidence, and capriciously make findings by administrative fiat.
Such authority, however beneficently exercised in one case, could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power."
plan finding must be set aside.
k 3.
Our own concerns about the Diablo Canyon security plan are sufficiently numerous that the question of its adequacy merits consideration de novo.
Xn the circumstances presented and in the interests of reasonable expedition, we deem it the wiser course to conduct that hearing ourselves.
We are bolstered in this view by matters stressed at oral argument particularly the application of the general propositions laid down earlier in this proceeding in ALAB-410, 5 NRC 1398 (1977),
to the concrete circumstances of the 'case.
ALAB-410 was in many ways a matter of first impression.
The 'diverse readings it has received from the parties before us suggest that it may be in need of refinement -- a task more suitable to ourselves as its author than to the Board below as its interpreter.
Because we intend to explore fully the adequacy of the security plan in any event, we see little to be gained by resolving the series of questions raised by intervenor's 15/
appeal.
The situation in which they arose is truly unique.
We think it unlikely that a board will be faced soon again with the farrago of inconsistent positions, substitute
- counsel, and a dying witness that recurred here.
We believe that.
we may be aided in developing the record if the intervenor is 15/
Even were intervenor to prevail, it would be entitled to no more relief than we now accord.
allowed to participate as a party in the forthcoming hearings; in the exercise of our discretion we will let it do so.
The terms of its participation will, of course, be governed by ALAB-410.
In light of the manifest need to avoid unnecessary dis-closure of the security plan, we shall decide precisely how we shall proceed after a closed prehearing conference where we will consider the parties'uggestions.
An order calling for such suggestions and calendaring such a conference will follow shortly.
It is appropriate now, however, to apprise
/
all parties that Qe are determined to move ahead swiftly; that requests for extensions of time or postponements will be looked upon with disfavor; and that any party intending to present witnesses should arrange for their services immedia tely Part IV of the partial initial 'decision of September 27, 1979 is vacated.
It is so ORDERED.
FOR THE APPEAL BOARD C. Je Bz shop Secret ry to the Appeal Board
[The additional comment of Dr. Johnson follows on page 10.]
a lo Additional comment of Dr. Johnson:
Ny view of intervenor participation in security plan H
hearings has not changed from that expressed in conjunction with Dr. Quarles in our concurrence in ALAB-410.
We said there that "had the regulations and precedents favoring it
[intervenor participation] not been so clearly drawn, we would have found that nuclear power plant site security plans should not be disclosed in the hearing process."
5 NRC at 1407.
~ C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
- Salzman, Chairman Dr.
W.
Reed Johnson Thomas S.
Moore R~~o'EB 1 9 ~980
)
~c,4 ha&
)
In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
)
(Diablo Canyon Nuclear Power Plant,)
Units 1 and 2)'
)
Docket Nos.
5 -323 0 Messrs.
Paul C. Valentine, Palo Alto, California, W. Andrew Baldwin and Yale I. Jones, San Francisco, California, argued the cause and filed a brief for intervenor San Luis Obispo Mothers, for
- Peace, apy'ellant.
Mr. Bruce Norton, Phoenix, Arizona, argued"the<
cause an
, with Messrs.
Malcom H. Furbush and Phili A. Crane, Jr.,
San Francisco, Cali ornia, an Arthur C. Gehr,
- Phoenix, Arizona, filed a brief for applicant Pacific Gaa and Electric Company,
~a alice.
Mr. James R. Tourtellotte argued the cause and Mr. Mare R.
taen er iled a brief for the Nuclear Regulatory Commission staff.
DECISION February 15, 1980 (ALAB-580) 1.
Among the contentions that intervenor San Luis Obispo Mothers for Peace has been pressing in this operating license proceeding are challenges to tne adecfuacy of the Pacific Gas and P'0
'I
-"~
Electric Company (PGGE) physical security plan for protecting the Diablo Canyon nuclear power facility from industrial sab-1/
otage.
A c".....bination of circumstances (including the acci-dental dea-."
= intervenor's proffered.expert witness) led to several Lice;. ing Board rulings culminating in the Board's holding that intervenor had "voluntarily defaulted" on thi's issue.
The to hearing c.
therefore precluded intervenor from going 2/
security plan contentions.
Neverthe
=., at the urging of both the applicant and I
the staff the Board below inspected the security features of the nuclear plant and took evidence in camera about their adequacy -- albeit in the absence of the'intervenor.
On the basis of that inspection and on the evidence presented to it at the closed hearing, the Licensing Board made an unequivocal finding "that the PGGE security plan complies with all appli-3/
cable NRC regulations."
1/
The requirements for physical security plans for nuclear power plants are detailed in 10 C.F.R. 573.55 (1979 Rev.).
2/
LBP-79-26, 10 NRC (slip opinion, Part IV, at 93)
(September 27, 1979).
3/
Id. at (slip opinion at 93-94).
The Licensing Board's decision also considered whether the facili"y is adequately designed to withstand earth-quakes.
As explained in the Appeal Panel Chairman's January 4,
- 19SO, memorandum (unpublished),
intervenor was represented on the security plan and earthquake issues by d'=e "ent counsel with offices in different cities.
he matters we e tried separately and respec-tive counsel filed exc ptions and briefs independently.
For convenience (and in the absence of any objection) we have treated the matters as two separate appeals; earthquake contentions are to be taken up by another appeal board w'h two technical members.
On this appeal from that ruling, intervenor generally asserts that the Licensing Board erred by (1) finding inter-venor's expert witness unqualified to examine the Diablo Canyon security plan and to testify about its adequacy; (2) holding intervenor had withdrawn from the proceeding by "voluntary de-..=ult";
(3) inspecting the Diablo Canyon facility's secur'"y features in the company of the applicant and the staff's representatives but not intervenor's; and (4) barring intervenor's substitute counsel from the in camera evidentiary hearing on the adequacy of the security plan.
We need not, however, resolve any of these questions because of a circumstance no party foresaw.
While con-sidering this appeal, we were unable to determine precisely what documents or other material the Licensing Board relied upon when making its security plan finding.
Accordingly, on February 6,
- 1980, we requested that Board to identify all such materials.
The Board responded on February 11th with a memorandum stating that "[t]he transcript of the in camera hearing, which contains the prepared testimony of the witnesses, is the only 'document'onsidered by the Board.
The Board also visually inspected various features of the security system during the sit visit."
What is not anifest from he Licensing Board s response is, first, that either the in camera hearing transcript nor any other pa t of the reco 9 contains the Diablo Canyon physical sec looked at it rity plan and 4/
Por, the re
- second, that the Board never sons which follow, we believe that in thes circumstance the Board's finding of regulatory compliance c nnot stand.
2.
The evidence addu d at the closed hearing wa.
quite limited The applica t offered two witnesses whose tes-timony amoun ed to no more than the expression c;; "heir "opinion" th t the securit'lan met the Commissic~'s re-quirements.
Zhe basis for this conclusion was not questioned by the Board Staff witne ses also testified, mainly to explain the taff's method Logy for evaluating the Diablo Canyon secur ty plan and ti list briefly the plan's salient features.
L stly, the sta E's Security Plan Evaluation
- Report, whic.'was only sli< itly more expansive than the staff testim iy, was place<
into the record as if read.
Relianc on such seco:
Sary sources is no substitute for examinin the plan's a
=ual provisions.
Our own review 4/
By way of this Licensi had loo Counsel members
>f further ch board indepen p Board Panel ad at the Dia'.
"esponded tha and confirmed
".k, the Chairman and one membe"
>ntly inquired of Counsel to the specifically whether the Board Lo Canyon security plan itsel he had checked with the Board
=hat the Board had not done so.
5/
of that document confirms this.
There are instances where the plan's conformity with applicable Commission regulations is not self-evident -- and some where it is even doubtful -- even when considered in the light of the evidence adduced at the 6/
closed hearing.
Xt may well be that these apparent discre-pancies can easily be explained on pertinent inquiry, but that was the purpose of the 'in camera hearing session.
We do not believe it possible for the Board to have found that the security plan conforms fully to all regulatory requirements without having at least read that plan.
The Board's security finding is, therefore, legally impermissible.
To be sure, were the Licensing Board correct that inter-venor had defaulted -- a question we do not decide -- there arguably may have been no need for the Board to pass on the security plan contentions.
A hearing is not mandatory in an operating license proceeding and a board need decide only con-5/
Upon examining the in camera
- record, we noted the absence of the security plan and proceeded to obtain a copy from its staff custodian on the mistaken assumption that the:
Licensing Board had returned it to him for safekeeping.
As mentioned, the Licensing Board never had the plan at all.
6/
The regulatory requirements of section 73.55 coupled with the complexities of the plan are such that a brief hearing, even when supplemented by an hour's walking tour of the plant, are insufficient to dispense with actual examina-tion of the plan.
7/
tested issues.
But a.board is not barred from looking into other concerns where it finds a serious safety issue 8/
that merits further exploration.
The adequacy of a security 9/
plan can certainly be such a matter.
- moreover, not only the intervenor but the applicant and the staff both urged that 10/
the Board review the Diablo Canyon security plan.
Having 1
undertaken to perform that task -- and here we think it had little choice but to do so -- the Board was bound to inquire diligently into the sufficiency of the plan's provisions.
Ne do'not understand the staff or the applicant, in asking for 11/
that review, to have been suggesting anytning else.
No conceivable good is served by making empty findings in the absence of essential evidence.
Thus the unequivocal finding that the security plan "complies with all applicable NRC regulations" -- where the Licensing Board never saw the plan--
7/
Cincinnati Gas 6 Electric Co.
(Zimmer Station),
ALAB-305, 3
NRC 8, 9
1976); Gulf States'tilities Co.
(River Bend
- Station, Units 1
6 2), ALAB-183, 7 AEC 222, 226 fn.
10 (1974).
8/
Consolidated Edison Co. of N. Y. (Indian Point Unit 3),
CLI-74-28, 8
AEC 7
(1974);
10 C.F. R.
552. 760a and
- 2. 104 (c).
9/
Pacific Gas
& Electric Co.
(Diablo Canyon Plant, Units 1
6 2
i CLI 77 23/
6 NRC 455'56 (1977) 10/
10 NRC at (slip opinion at 93).
Surprisingly, neither party offered the security plan into evidence or asked that official notice be taken of it.
"The staff has the obligation to lay all relevant materials before the Board to enable it adequately to dispose of the issues before it."
Conso'lidated Edison Co. of N. Y. (Indian Point
But given the Board's determination to evaluate the security plan, the staff's failure to ask formally that it be noticed does not excuse the Board's failure to look at it or, alter-natively, to state why it did not find it necessary to review the actual plan.
is so much waste ink.
'Of course circumstances may arise where a,board might, deter'mine that a thorough inquiry was not necessary.
But in that case its minimum obligation would be to acknowledge the fact and to explain it.
Here the Licensing Board did neither.
Moreover, it is a statutory requirement that the adjudi-catory decisions of this Commission stand or fall on the 12/
basis of the record on which they rest.
The Administrative Procedure Act (to which NRC proceedings are specifically sub-13/
ject
) mandates in pertinent part that "[t)he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision 5 U.S.C. 5556(e).
Given the duty to decide in accordance with the facts provided,
"[a] finding without evidence is arbitrary and baseless,"
ICC v. Louisville
& N.
R. Co.,
227 U.E.
88, 91 (1913) -- a principle that has con-14/
stitutional underpinnings.
Accordingly, the Board's security 12/
A licensing proceeding is an adjudication within the meaning of the APA.
Porter County Chapter v.
945 (1976); Citizens for a Safe Environment v.
- AEC, 489 F.2d 1018, 1021 (3rd Cir.197 );
~sre el v.
- AEC, 400 P
2d 778 I 785 (D ~ C ~ Cir 1968)
~
13/
14/
42 U.S.C.
52239(b);
see also 5 U.S.C.
5559.
As the Court explained (227 U.ST at 91):
"if the govern-ment's contention is correct, it would, mean that the Com-mission had a power possessed by no other officer, ad-ministrative body, or tribunal under our government.
It would mean that, where rights depended upon facts, the Commission could disregard all rules of evidence, and capriciously make findings by administrative fiat.
Such authority, however beneficently exercised in one case, could be injuriously exerted in another, is inconsistent with rational justice, and comes under the Constitution's condemnation of all arbitrary exercise of power."
plan finding must be set aside.
I 3.
Our own concerns about the Diablo Canyon security plan are sufficiently numerous that the question of its adequacy merits consideration de novo.
In the circumstances presented and in the interests of reasonable expedition, we deem it the wiser course to conduct that hearing ourselves.
We are bol'stered in this view by matters stressed at oral argument, particularly the application of the general propositions laid down earlier in this proceeding in ALAB-410, 5
NRC 1398 (1977),
to 'the concrete circumstances of the case.
ALAB-410 was in many ways a matter of first impression.
The diverse readings it has received from the parties before us suggest that it may be in need of refinement -- a task more suitable to ourselves as its author than to the Board below as its interpreter.
Because we intend to explore fully the adequacy of the security plan in any event, we see little to be gained by resolving the series of questions raised by intervenor's 15/
appeal.
The situation in which they arose is truly unique.
We think it unlikely that a board will be faced soon again with the farrago of inconsistent positions, substitute
- counsel, and a dying witness that recurred here.
We believe that we S
may be aided in developing the record if the intervenor is 15/
Even were intervenor to prevail, it would be entitled to no more relief than we now accord.
allowed to participate as a party in the forthcoming hearings; in the exercise of our discretion we will let it do so.
The terms of its participation will, of course, be 'governed by ALAB-410.
In light of the manifest need to avoid unnecessary dis-closure of the security plan, we shall decide precisely how we shall proceed after a closed prehearing conference where we will consider the parties'uggestions.
An order calling for such suggestions and calendaring such a conference will follow shortly. It is appropriate now, however, to apprise all parties that Qe are determined to move ahead swiftly; that requests for extensions of time or postponements will be looked upon with disfavor; and that any party intending to present witnesses should arrange for their services immediately.
Part IV of the partial initial decision of September 27, 1979 is vacated.
It is so ORDERED.
FOR THE APPEAL BOARD C. Je Bishop Secret ry to the Appeal Board
[The additional comment of Dr. Johnson follows on page 10.]
10 Additional comment of Dr. Johnson:
Ny view of intervenor participation in security plan hearings has not changed from that, expressed in conjunction with Dr. Quarles in our concurrence in ALAB-410.
We said there that "had the regulations and precedents favoring it
[intervenor participation] not been so clearly drawn, we would have found that nuclear power plant sit'e security plans should not be disclosed in the hearing process."
5 NRC at 1407.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
- Salzman, Chairman Dr. W. Reed Johnson Thomas S.
Moore In the Matter of PACIFIC GAS 6 ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1
6 2)
Docket Nos.
50-275 OL 50-~
OL ORDER January 16, 1980 On January 2, 1980, this cause was calendared for argu-ment in San Francisco, California, on January 23, 1980.
This morning we received through the mails a request by intervenor, the appellant, for a continuance of oral argument, with the representation that applicant's counsel would not. object to a postponement until January 29, 30 or 31.
Previously scheduled commitments by the members of this Board, however, rule out those alternate dates.
Consequently, if not held as scheduled, the argument would have to be post-poned for approximately a month.
We also note that intervenor is represented by three attorneys, all of whom are on the
brief, and it is not represented that all of them will be unavailable for argument on the 23rd of January.
In the circumstances, the motion for a continuance is denied.
It is so ORDERED.
FOR THE APPEAL BOARD C. J Bishop Secre ary to the Appeal Board
"I'FED STATES OF PJlERICA h',UCLEAR 'P-.GULATORv CO ~~lISSIOH ATO'~iIC SAFETY Al'D LICENSING APPEZ'L BOARD Richa d S.
- Salzman, Chairman Dr. N.
Reed Johnson Thomas S.
moore 9
In the Yatte o=
P.CI C
G.~ S G. - LECTRIC CO~'>A>5'.
'(Diablo. Canyon Nuclear Power lant, Units 1
e 2)
)
)
)
) Docket lios.
50-275 OL
)
50-323 OL
)
)
)
ORDER January 4,
1980 The oral argument in this cause scheduled
=or h'ednesday, Januarv 23, 1980 4" 11 be heard at 9:30 a
m t lat Qav in the Un'ed Sta es ax Cour",
room 2021, Federal Buildin and Co
- house, 450 Golden Gate Avenue, San Francisco, Cal'ornia.
Each side will be allowed one hour or argument.
Interve..or, S-n Lu's,Ob'spo brothers
=.or Peace, vill be heard fi s and may reserve =art of its time =or rebuttal.
The applicant and the staff-will then be hearc 'n that order, divid'ng "heir time ecuallv unless they agree otherwise.
Each party shall mail to tne Secretary of this Board by January ll, 1980 the
- name, address and telephone number of counsel who will argue in its behal It is so ORDERED.
FOR THE APPEAL BOARD Secre" arv to ihe Appeal Boarc
I
, J
~, I D STATES OF S n;ERICA NUCLEAR 'REGULATORv CO~L~lISSION ATO.'~iIC SAFETY AND LICENSING APPED L BOARD Ri.cha d S.
- Salzman, Chairman Dr. N.
Reed Johnson Thomas S.
Moore 0
QQ%
h In the Yatter of PACZ"ZC GAS
& ELECTRIC COZZENS (Diablo.Canvon Nuclear Power
- Plant, Units 1
& 2)
)
)
)
) Docket Hos.
50-275 OL
)
50-323 OL
)
)
)
ORDER January 4
1980 I
The oral argument in this cause scheduled
=or t!ednesday, Januarv 23, 1980 w'l be heard at 9:30 a.m. that dav in the United Sta es ay. Court, room 2021, Federal Building and Cou thouse, 450 Golden Ga"e Avenue, San Francisco, Cali ornia.
E-ch side
~ ill be allowed one hour or argument.
I..tervenor, San Lu'.Ob'po Ilothers for peace, will be neard fi s and Ii,av reserve part of its time
=.or rebuttal.
The applicant and the staff-will then be heard 'n that order, dividinG their time ecuallv unless they agree otherwise.
Each party snail mail to the Secretary of this Board by Januarv 11, 1980 the name, address and telephone number of counsel who will argue in i"s behalf.
Zt 's so ORDERED.
FOR HE APPEAL OA D
~c-i
+~4~ ~~~~g~~<!2 Secretary to the Appeal Board
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
o~
ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
- Salzman, Chairman Dr. N.
Reed Johnson Thomas S.
Moore J\\
Q J$ ~ I g )pe p'ee<~>
y6c~@
C) o'-
In the Matter of PACIFIC GAS 6 ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1
6 2)
)
)
)
)
Docket, Nos.
50-275 OL
)
50-323 OL
)
)
)
ORDER January 2,
1980 The Board will hear oral argument on intervenors ex-ceptions related to the security plan issues in San Francisco, California, on Wednesday, January 23, 1980.
The exact time, place and order of argument will be'announced in a subsequent order.
The Board may also specify in that. order matters in which it is particularly interested that counsel should be prepared to discuss.
It is so ORDERED.
I'OR THE'APPEAL BOARD Barbara.A.- Tompkins Secretary to tne Appeal* Board
/
q 0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Richard S.
- Salzman, Chairman Dr.
W.
Reed Johnson Thomas S.
Moore
~ IQQ 9'
@g$5U>~
1 gG;~~~
~@~W~
0-In the Matter of PACIFIC GAS 6 ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 6 2)
)
)
)
)
Docket Nos.
50-275 OL
)
50-323 OL
)
)
)
ORDER January 2,
1980 The Board will. hear oral argument on intervenors ex-ceptions related to the security plan issues in San Francisco, California, on Wednesday, January 23, 1980.
The exact time, place and order of argument, will be announced in a subsequent order.
The Board may also specify in that order matters in which it is particularly interested that counsel should be prepared to discuss.
It is so ORDERED.
FOR THE'APPEAL BOARD Barbara.A. Tompkins Secretary to the Appeal Board
l