ML19209A976
| ML19209A976 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/30/1979 |
| From: | Bowers E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7910050715 | |
| Download: ML19209A976 (5) | |
Text
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NRC DUBLIC DOCUMENT nooM g,
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JUL2 71979 b-uuut THE ATCMIC SAMY AND I.IENSING BOARD
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Ir the Matter of
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PACIFIC GAS AND EECIRIC 0]MPANY
) Decket Nos. 50-275 OL
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50-323 OL (Diablo Canycn Nuclear Pcsv_r Plant,
)
Units 1 and 2)
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ORDER EEIATIVE TO 3DIICN TO REOPEN TEE HEARDU 01 IEE SECURITY PLAN On Jtne 8,1979, a noticn was filed by a new cotnsel, W. Andrew Baldwin, Esq. for the San Luis Obispo bbthers for Peace (MFP) to reopen the hearing en the adequacy of the security pla for Diablo Canyon. On Jtne 28, 1979, the NRC Staff responded in oppositicn. On July 6, 1979, PG&E respcnded in cppositicn.
For several years MFP has been represented by Paul C. Valentine, Esq.
and Yale I. Jcnes, Esq. for the security plan contenticn. Other cotrael, the Canter for Law in the Publi: Interest, repressted MFP cn all other contentions.
The security ccntaticn has had a 1cng histcry of MFP subnitting varicus proposed expert witnesses who would meet the criteria set forth by the Appeal 1/
Board in AIAB-4107 Ncne of the prcposed witnesses were recognized by the Licensing Board as reeting the requiremmes of AIAB-410. The last prcposed witness was Mr. David Cemey who nest tnforttnately died January 5,1979.
1/ acific Gas and Electric Ccurany (Diablo Canycn Nuclear Pcuer Plant, P
Units 1 and 2), ALAB-410, 5 NRC 1398,1405 (Jtne 9,1977).
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. Just prior to this tragedy, on Dece er 22, 1978, the Appeal Board in 2/
AIAB-514 denied MFP's request for certificationT The Appeal Board did not reach the merits of Mr. Cmey's qm14 f3. cations, but denied on the basis that it was an interlocutory appeal and the catter could be raised ngnh after our initial decisien issued. Mr. Ccmey's untimely d+e did not permit any further action by MFP on his behalf.
Mr. Valentine and Mr. Jcnes had informally bd4 cared earlier that they wae considering whether they would participate in the evidentiary hearing even though they could not put on a direct case. By letter of January 19, 1979, speaking for MFP, Mr. Valentine recited the history of MFP's effort to produce a witness acceptable to the Licensing Board and concluded as follows:
This Intervenor has bem denied access to the security plan and has been denied the qmlifi-enHm of expert witnesses to review the plan, either for preparaticn for cross-exa:m.naticn or the presentaticn of affir=ative evidence as to the inadequacy of the applicant's security plan.
Without the qualificaticn of an expert witness to inspect the plan and advise Intervenor's attorney, it is i=cossible for this Intervenor to prepare, either for significant cross-exa:nnaticn on the inadequacies of the applicant's security plan or to present affirmative evidence to support Intervenor's ccntentions.
Therefore, this Intervenor will not be able to participate in the hearings now scheduled for tra first week of February as to the adequacy of applicant's security plan.
2_/ Pacific Gas and Electric Carcany (Diablo Canyon th2 clear Pcer Plant, Units 1 anc 2) ALAB-514, 8 NRC 697.
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/ Following receipt of Mr. Valentine's letter, PGSE and the NRC Staff requested the Board to nroceed with an in camera evidentiary sessicn ca the security plan for the heility. The Board agreed to the request.
This segment of the evidentiary hearing was scheduled for Monday, February 12, 1979.
On Thursday, February 8,1979, the Board received the following telegram:
Dear Mrs. Ecwers,
Please enter my aopearance en behalf of San Inis 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 Systens Tour Mmday February 12. Please Notify me by telephone or Elimheth Apfelberg (805) 544-4955 or David Fleishacker where and when I should appear to
- begin the tour. Regrat that another case required my return to San Francisco.
Respectfully W. Andrew Baldwin, Friends of the Earth (415) 495-4770 (12,4 Spear St San Francisco CA 94105)
The Board requested the response of PG&E and the Staff to the telegram (Tr. 9080-9099). PG5E stated that Mr. Baldwin would not be permitted to tour the facility unless the Nuclear Regulatorf Ccendssioners directed his ad=issicn and there wasn't time to place the matter before them. The Staff disagreed with the Applicant that the parties could assume Mr. Baldwin also wanted to parHeipate in the jn esmera evidaciary hearing. The Staff protested that MFP had withdrawn in this matter and that they shculd not be perritted an in 3/
and cut revolving door approach!
The Board elected to censider the matter overnight.
U orthern States Power Co. (Prairie Island Nuclear Generating Plant, N
Units 1 and 2),08-288, 2 NRC 390, 393 (1975).
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s At the beginning of the sessicn ca Friday, February 9,1979, the Board stated that the security plan ecntation was no lcnger before the Board based cn Mr. ValanHn.e's letter of January 19, 1979 and that Mr. Baldwin would not be permitted to participate in the _in_, camera evidentiary sessicn.
Other counsel for MFP agreed to mumicate this detaminncien to Mr. Baldwin.
After the hearing adjourned for the day but befcre the Board and parties left the hearing rocm, the folicwing telegram was received frcm Mr. Baldwin:
Dear Mrs. Bowers:
Denial of my participaticn in Diablo Canycn's security systen tour and hearings would be.
unprecedented, uh and a amini of due process.
Please inform ma dien and where I shculd appear bbnday to argue this matter.
Respectfully, Andrew Baldwin Phone Nu=bers are (415) 495-4770 or (415) 323-3020 In a bench conference both PGSE and the Staff suppcreed Mr. Baldwin's request for oral argument. The Board concurred and ccunsel for MFP cn other contaticns agreed to contact Mr. Baldwin. At appwximately 11 a.m. on Mcnday, February 12, 1979, the Board invited Mr. Baldwin and the other parties to present oral argument.
(Tr. 9356-9377). After Mr. Baldwin was infor=ed by the Board that MFP had wi.thdrawn their security centention as a " voluntary da6 nit" under 10 CER 2.707 Mr. Baldwin then stated that Fa was representing Mrs. Elf ?nheth Apfelberg, and the Ecology Acticn Club of Cal Poly, San Luis Obispo. Mr. Baldwin was not able to identify any docu:mnts to establish that tilese intervenors had a security centention since the demments filed by ll27 359
w Messrs. Valentine and Jones were always en behalf of MFP alcne.
The Board proceeded with the in camera sessicn and tour on February 12, 1979, withcut Mr. Baldwin being present.
Both the Staff and PG6E have responded to Mr. Baldwin's " Motion to 4/
Reopen" by citing the burden that cost be met to recpen a hearingT The Bored cencurs that the notion cust be denied for Mr. Baldwin has failed to show a significant unreviewed safety itsa or changed circ = stance which would justiff reopening the reccrd and reacnitting a withdrawn contention.
KR THE AICMIC SAFETY AND LICESING BOARD dAMJ.JM Eli$beth S. Bowers, Omiran Dated at Bethesda, Ma71and
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this 30th day of July 1979.
S errent Yankee Nuclear Power Coro. (Ver::rnt Yankee Muclear Power Station)
V ALAB-138, 6 AEC 520 (1973), recensideraticn danied ALAB-141, 6 AEC 576 (1973), Duke Power Ccreany (Catawba Nuclear Staticn, Units 1 and 2) ALAB-359, 4 NRC 619 (1976) and Kansas Gas and Electric Cccrany (Wolf Creek Generatir4 Staticn, Unit 1), AIAB-462, 7 BaC 320, 338 (1978).
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