ML17083A598
| ML17083A598 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/14/1980 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8010160552 | |
| Download: ML17083A598 (14) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 10/14/80 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter 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.~
NRC STAFF'S
RESPONSE
TO BOARD'S OCTOBER 6 ORDER In its October 6, 1980 Order concerning scheduling of the security plan
- hearing, the Appeal Board requested the parties'iews about convening the hearing on the Applicant's premises.
The Board notes a letter from counsel for the Governor dated October 1st in which the Governor objects to holding a hearing on Applicant's premises.
In the letter, counsel for the Governor
- states, "Not only would such a situs of the hearing create the appearance of an improper relationship between regulator and regulated company,'ut fundamental legal issues would obviously be raised."
The Governor's coun-sel goes on to recognize that the parties may be inconvenienced by holding the hearing in a location where security measures are not adequate but argues
. the overriding importance of maintaining both the integrity and the appearance of integrity of the Diablo Canyon proceeding should be of utmost concern."
The Governor also offers to make available personnel in the California State Police to assist in the transportation and protection of security plan materials.
~sod S ~s soxozeo55'k
DISCUSSION Any time a party wishes to argue that a particular action creates "an appearance of an improper relationship," it is difficult to seriously argue the converse since what may "appear" to one person may not similarly "appear" to another.
Consequently, arguing about a state of mind would not appear to accomplish much.
However, the NRC Staff does not know what "fundamental legal issues" would be raised by holding in-camera hearings in a facility owned by the Applicant.
Such issues are certainly not obvious, nor have they been identified.
In determining where to hold in-camera evidentiary hearings on matters sub-ject to protective orders, the Commission's boards should be guided by (I) the convenience and necessity of the parties or their representatives
[5 U.S.C. 554];
(2) the Commission's policy and practice to begin eviden-tiary hearings in the vicinity of the site.[10 C.F.R. Part 2, Anp. AI(a)];
and (3) the need to insure that matters subject to protective order are properly safeguarded
[10 C.F.R.
5 2.740(c)].
The Governor's counsel does not address the above factors.
It should be noted with rezard to the first factor that both the Governor's personnel and Intervenor SLOMPF's personnel have been provided facilities in Appli-cant's San Francisco offices in order to have access to protected information and to prepare for hearing.
However, since the Staff is not yet privy to the other parties'esponses, it can not determine what other facts may bear on the respective parties convenience and necessity.
In addition,
the Board can appropriately consider the convenience of all persons including the agency's.
[Burnham Truckin Co. v. U.S.,
216 F.Supp.
- 561, 564 (D.Mass.
1963).]
Given the number of Washington, D.
C. persons
- involved, a hearing in the Board's hearing rooms in Bethesda, Maryland should not be automatically ruled out.
With regard to the second factor, proximity of the site, no legal prohibi-tions are cited by the Governor to support the proposition that holding security hearings in-camera in the Applicant's facility is improper.
The con-duct of a hearing at a site owned by one of the litigants does not represent an impropriety.
[Brotherhood of Railroad Trainmen v. Chicago M., St.
P.
6 P.R.Co.,
237 F.Supp 404, 422 (D.D.C. 1964), rev'd on other orounds 345 F.2d 985 (D.C. Cir. 1965)
~
See also Home Loan Bank Board v. Mallonee, 196 F.2d 336, 373 (9th Cir, 1952)
~ ]
Although such proceedings have not been common in past Commission practice, it should be noted that in-camera pro-ceedings were held by an Appeal Board in 1974 at the Indian Point facility.
[Consolidated Edison Com anv
( Indian Point Unit 2), ALAB-243, 8 AEC 850, 851 (1976).]
A search of the record of that highly contested proceeding revealed no objection by any party of the type posed by the Governor.
The NRC Staff knows of no regulation, statute or case which prohibits the con-duct of a hearing in a facility owned 'by one of the litigants, If, in order to effectively qive proper deference to the Commission's policy on holding hearings near the site, the Applicant's property is used, no leqal bar pr e-vents a Board from so deciding.
The third factor, security arrangements for the in-camera proceeding, pre-sents a matter significantly impacting the first two factors.
While
there is no doubt that it is possible to hold the security hearings in places other than the Applicant's facility, the parties could be severely incon-venienced.
After receiving the parties'espective views, the Board may find on balance that the factors weigh in favor of ordering the hearing held in its own hearing room in Bethesda where security is adeauate.
Should the Board schedule the hearing for neutral ground near the site, the parties
- would be inconvenienced by having to have their documents and working paoers moved to and from the Applicant's security vaults at the beginning and end of each day.
Security arrangements would also be necessary durina lunch and recesses.
In addition, many more opportunities for access to the de-tails of the security plan would be provided to persons without any demon-strable need for access due to the logistics involved.
Additional guards would be required along with additional personnel necessary to transport each party's protected papers back and forth.
The court reporters would have to be provided a secure place in which to transcribe.
These details would surely require shorter hearing days in order to accommodate the added security precautions.
This factor clearly weighs against holding the hearings anywhere other than in Applicant's or NRC's facilities.
CONCLUSION The NRC Staff believes the location of the security hearings is a matter best left to the sound discretion of the Appeal Hoard after receiving the parties',views so that it can weigh and balance (1) the convenience and-neces-sity of the parties and the agency, (2) the Commission policy on holding
hearings in the vicinity of the facility, and (3) the need to insure matters subject to protecti ve order are properly safeguarded.
Respectfully submitted, Ililliam J.
mstead Lead Counsel for NRC Staff Dated at Bethesda, Maryland this 14th day of October, 1980
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 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
RESPONSE
TO BOARD'S OCTOBER 6 ORDER" 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 14th day of October, 1980.
- Richard S.
- Salzman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck 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
- Mr. Thomas S.
- Moore, Member 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 Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401
+Mr. Glenn 0. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. William E. Martin Senior Ecologist Battelle Memorial Institute
- Columbus, Ohio 43201 Phil'ip A. Crane, Jr.,
Esq.
Pacific Gas and Electric Company Room 3127 77 Beale Street San Francisco, California 94106 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mrs.
Raye Fleming 1920 Mattie Road Shall Beach, California 93449 Richard E. Blankenburg, Co-publisher Wayne A. Soroyan, News Reporter South County Pu~lishina Company P.O.
Box 460 Arroyo Grande, California 93420
" l1ajorie Nordlinger Office of General Counsel U.S. Nuclear Regulatory Comm.
Washington, D. C.
20555 Mr. Gorden Silver 1760 Alisal Street San Luis Obispo, California 93401
.PJohn R. Phillips, Esq.
Simon Klevansky, Esq.
Margaret Blodgett, Esq.
Marion P. Johnston, Esq.
Center for Law in the Public Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Arthur C. Gehr, Esq.
Snell
& Wilmer 3100 Valley Center Phoenix, Arizona 85073 Paul C. Valentine, Esq.
321 Lytton Avenue Palo Alto, California 94302 Harry M. Willis Seymour
& Willis 601 California St.; Suite 2100 San Francisco, California 94108 Janice E. Kerr, Esq.
Lawrence g. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James
- 0. Schuyler Nuclear Projects Engineer Pacific Gas
& 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 Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 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 Baldwin, Esq.
124 Spear Street San Francisco, California 94105 Herbert H. Brown Hill, Christopher
& Phillips, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 J. Anthony Klein Legal Affairs Secretary Governor's Office State Capitol Sacramento, California.
95814 "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
<<Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing
& Service Br.
Washington, D.C.
20555 Wil 1 iam Olmstead Counsel for NRC Staff