ML19241B682
| ML19241B682 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/28/1979 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907200255 | |
| Download: ML19241B682 (10) | |
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UNITED STATES OF AMERICA 3
'M NUCLEAR REGULATORY COMMISSION h
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant,
)
Units Nos. I and 2)
)
NRC STAFF RESPONSE TO INTERVEN0rtS' MOTION TO REOPEN THE RECORD ON SECURITY PLAN MATTERS I.
Background
In a pleading dated June 8,1979, Mr. W. Andrew Baldwin, an attorney alleged to be representing the San Luis Obispo Mothers for Peace, moved that the Licensing Board ir, the above-captioned proceeding establish a. schedule for inspection of the Diablo Canyon Power Plant security plan by Intervenors and that the now E in this case be reopened and rescheduled to allow past security hearings them to litigate the adequacy of that security plan. I s grounds for their A
motion, Ir,tervenors allege that the Licensing Scard erred in refusing to permit the Mothers for Peace to participate in the radiological health and safety hearing 2 held on the Diablo Canyon security plan.
Specifically, Intervenors assert that the Board erred in finding them in def ault under the provisions of if Hearings on the security plan had previously been held cn Monday, February 12, 1979.
2] Intervenors' Motion at 6.
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, 10 C.F.R. 92.707 and that it should instead have allowed Mr. BaldwinEo t
enter an appearance on Thursday, February 8,1979 and to cross-examine the
_ security witnesses who were presented the following Monday, February 12, 1979.
Although the instant motion-is styled a Motion to Reopen, the main thrust of Intervenors' pleading is directed tward reversing the Licensing Board's refusal to let Mr. Baldwin participate in the security hearings. Accordingly, the instant motion is essentially one to reconsider the Licens^ing Board's previous decision.
For this reason, the NRC Staff will initially discuss below the correctness of the Licensing Board's refusal to allow pai ticipr. tion of the Intervenors under the representation of new counsel and then will address the merits of Intervenors' motion to reopen the hearings undcr traditional caselaw.
For the reasons stated below, the Staff is of the opinion that the Board correctly ruled that Interveners, through their new counsel, Mr. Baldwin, could not participate in the security hearings on such short notice and that Interver. ors' instant Motion to Reopen adds no new reasons why that decision should be overturned.
-1/ It is not clear to the Staff what the relationship between the MFP and their two counsel are. As far as the Staff kncws (and no demonstration was made to the contrary), Mr. Valentine still remains their ccunsel in this matter and thus' Mr. Baldwin's authority to countermand Mr. Valentine's decision is still unclear.
However, for the reasons listed infra, the Staff believes that the Board does not need this information to correctly decide the issue.
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' II.
Discussion A.
Board Ruling Intervenors allege that the Licensing Board erred in barring them from Mr.
participation in the security plan hearings by not allowing a new attorney, Baldwin, to enter an appearance and to cross-examine the witnesses presenced by the Applicant and Staff.E The Licensing Board found that the Intervenors had withdrawn themselves from the security issue by their counsel's letter of January 19,1979,E that the same letter had admitted that Intervenors had if Motion to Reapen at 2.
The instant situatior, is readily distinguishable from the situation presented in Louisiana Power and Light Company (Waterford steam Electric Station, Unit 3), ALAB-ll7, 6 AEC 261 (April 20,1973) where the entry of new counsel ca apotal warranted good cause for a delay in the case to give counsel an opportunity to prepare an appellate brief.
Public Service Electric and Gas Company (Atlantic Nuclear Generating Station, Units 1 and 2), LBP-75-62, 2 NRC 702, 703 (October 14,1977).
Here, no advance warning was given, no active participation in the case was had by counsel prior to his appearance and no good cause shown why his appearance, which radically changed the position taken by counsel in its January 19, 1979 letter, could not have been made in a more timely manner.
a' 2f The January 19, 1979 letter provided in p -tine,t part:
This Intervenor has been denied access to the security pian and has been denied the qualification of expert witnesses to review the plan, either for preparation for cross-examination or the presentation of affirmative evidence as to the inadequacy of the applicant's security plan.
Without the qualification of an expert witness to inspect the plan and advise Intervenor's attorney, it is impossible for this Intervenor to prepare, either for significant cross-, xamination on the inadequacies of the applicant's security plan or to present affirmative evidence to support Intervenor's contentions.
Therefore, this Intervenor will act be able to partici' ate in tne hearings now scheduled for t' e first week of February as to the adequacy of applicant's security plan.
CWd c.og
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4-no contribution to make to the proceeding without witnessesNand that the request for participation by Mr. Baldwin was untimely since no security check could be made on Mr. Baldwin's credentials in the time left before the hearing.
Tr. 9104-9107.
The Board held that because of the findings above, the Intervenors had abandoned their contention on security and were in default under the provisions of 10 C.F.R. s2.707 and thus were not entitled to participate in the security tour or the h camera hearing sessions on security.
Tr. 9376.
B.
Applicable Law Motions addressed to !icensing Boards to reconsider non-final uecisions are covered by the provisions of 10 C.F.R. 52.771. I In the absence of a presentation of new evidence on security plan matters, the issue becomes whether the law and facts are sufficient to warrant exclusion of Intervenors' counsel from the hearings such that the Licensing Board should not exercise its discretion to reopen the record.
10 C.F.R.12.707 provides that "On failure of a party to comply with any prehearing order.... the presiding officer may make such orders in regard to the failure as are just....".
In addition, a Licensing Board has inherent jurisdiction to control the course of a hearing procedurally.]
For these reasons, if the Intervenors were not in co..:pliance with the order of the l_/ The Staff also notes that no explanation was given as to why Mr. Baldwin could be expected to contribute to the proceedings by cross-examination under the same circumstances which Mr. Valentine felt would not be meaningful.
Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143,1149 (May 9,1977).
2f "The power to reconsider is inherent in the power to decide," Consumers Power Comoany (Midland Plant, Units 1 and 2), ALAB-235, 8 NRC 645, 646 (October 17, l974) citing Spanish International Broadcastina Company v. FCC, 385 F.2d
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615, 621 (D.C. Cir.1967).
-3/ Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-227,1 NRC 539, 544 (1975).
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. Licensing or Appeal Boards, or the Intervenors waived their right to participate in the hearings, the Staff believes that the Board would be legally justified in ordering whatever just actinn it considered to be necessary to conduct the security hearings.
C.
Waiver or Default _
In the instant case, both the Appeal Board and the Licensing Board have made it extremely clear what procedures are to be complied with before a party, including counsel, has access to the Diablo Canyon security plan for cross-examination purposes. The clear thrust of these rulings has been to assure that only approved individuals can see the plan.
In that regard, the Appeal Board in this case stated that:
(2)
If and to the extent released, the plan may --
and in most circumstances probably should -- be subject to a protective order.
See 10 CFR 52.790(e) and 52.740(c).
In considering a protective order, it is a material consideration whether the recipient of the information is likely to abide by such an order.
If it is demonstrated that a particular individual is unlikely to do so, the Licensing Board might be such individual to gain justified in not permi tting/ (Footnote omitted.)
access to the informationd g Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398,1405 (June 9,1977).
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. In addition, the Licensing Board, both before and after ALAB-410, had ruled that counsel for the Interv,enors must sign a protective order under oath before access can be had to the security plan.N In the present case, no protective agreements had been signed by Intervenors' E or not executing a new counselU nor was there a showing of good cause f
protective agreement or furnishing reasonable notice to the parties of their intent to participate in the hearings at such a late date.
Thus the procedure followed by Intervenors was not only violative of the Licensing and Appeal Board directives, but also did not give the parties adequate notice so that they might make appropriate inquiries concerning the new attorney.
In that regard, Licensing Board and parties were not informed of the intent of Mr.
Baldwin to participate in the hearings until a telegram arrived on the Thursday afternoon (February 8,1979)U efore the Monday on which the security hearings were b
scheduled to begin,(February 12,1979).
Moreover, Mr. Baldwin did not appear in person to explain his position until the day of the security hearings.
y Licensing Board Orders of June 23, 1976 and June 17, 1977.
-2/
See Mississipoi Power and Light Co. (Grand Gulf Nuclear Station, Units l-and 2), LSP-73-41, 6 AEC 1057 (1973).
3/
See eg., Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (1975).
4f The telagram was dated 1545 of February 8,1979 and read in its entirety:
Dear Mrs. Bowers,
Please enter my appearance on behalf of San Luis Obis?o Mothers for Peace in the above referenced matter.
I am a member of the California Bar.
I intend to pz. 'oate in the Diablo Canyon security systems tour Monday, February u..
" ease notify me by telephone or Elizabeth Apfelberg (805) 544-4955 or David Fleishacker where and when I should appear to begin the tour.
Regret that another case required my return to San Francisco.
Respectfully, W. Andrew Baldwin, Friends of the Earth."
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. Since no reasonable notice was given nor good cause furnished for not having done so, the Licensing Board cannot be faulted for continuing to consider the Intervenors in default under 10 C.F.R. 52.707.
For this reason, the Staff believes that the Board correctly denied access to the security hearings and thur to the highly sensitive security plan and security devices in order to protect the plan itself and to keep the Intervenors and their counsel frem
" stepping in and out of a particular issue at will."1/
D.
The Motion to Reopen The Appeal Board has stated that a party seeking to persuade an c!.iudicatory tribunal to reopen the record bears a heavy burden l o show a sigr.ificant t
unresolved safety question.Y While the security plan for Diablo is certainly significant, it has now been reviewed ty the Staff and the Licensing Board and thus is no longer unresolved or unreviewed.
In this regard, while Intervenors would have no way of knowing the state of the record since they waived their right to participate, supra, the Staff notes that no specific new significant unreviewed matters or changed circumstances were menticaed in Intervenor's Motion to Reopen and thus no basis has been offered to alter the record as it currently exists regarding security.
1/ Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 NRC 390, 393 (September 17, 1975).
2/ Duke Power Comcany (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976).
3/ Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520, 523 (1973); reconsideration den., ALAB-141, 6 AEC 576 (1973).
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit 1),
ALAB-462, 7 NRC 320, 338 (1978).
SC@D32
, Since Intervenors have not yet met their burden of showing that the security hearings must be reopened, Intervenors' Motion to Reopen should be denied.
III.
Conclusion For th'. reasons listed above, the NRC Staff believes that the Intervenors' January 19, 1979 letter has waived their right to participation in the security hearings by cross-examination and they have not shown good cause, furnished reasonable notice of their intent to participate in the security hearings, nor furnished any additional reason for the Licensing Board to allow them to participate in the securif, hearings.
Thus, that portion of their motion which in effect asks tar a reconsideration of the Licensing Board's previous exclusion of them from the security hearings should be denied.
In addition, the NRC Staff believes that the Motion to Reopen must be denied for having failed to show a sigaificant unreviewed safety itun or cha igt.d circumstances which would satisfy their heavy burden of showing that the record must be reopened.
Respectfully submitted, 40m L. Cow Da/is Counsel for NRC Staff Dated at Bethesda, Paryland this 28th day of June,1979.
6C 033
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 0.L.
j
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50-323 0.L.
(Diablo Canyon Nuclear Power Plant )
l Units Nos. I and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS' MOTION TO REOPEN THE RECORD ON SECURITY PLAN MATTER 5" cated June 28, 1979, 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 28th day of June,1979.
- Elizabeth S. Bowers, Esq., Chairman Mrs. Raye Fleming Atomic Safety and Licensing Board 1920 Mattie Road Panel Shell Beach, Cali fornia 93449 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Frederick Eissler Scenic Shoreline Preservatien
- Mr. Glenn 0. Bright Conference, Inc.
Atomic Safety and Licensing Board 4623 More Mesa Drive Panel Santa Barbara, California 93105 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 M,s. Sandra A. Silver 1760 Alisal Street Dr. William E. Martin San Luis Obispo, Cali fornia 93401 Senior Ecologist Bat te'ie Memorial Institute Mr. Gordon Silver Columbus, Ohio 43201 1760 Alisal Street San Luis Obispo, Cali fornia 93401 Philip A. Crane, Jr., Esq.
Pacific Gas and Electric Company Richard B. Hubbard 77 Beale Street, Room 3127 MHB Technical Associates San Francisco, Cali fornia 94106 1723 Hamilton Avenue - Suite K San Jose, Calife mia 95125 Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 EG$034, a
t-a o
. Paul C. Valentine. Esq.
Bruce Norton, Esq.
321 Lytton Avenue 3216 North 3rd Street Palo Alto, California 94302 Suite 202 Phoenix, Arizona 85012 Yale I. Jont.:s, Es q.
100 Van Ness Avenue
- Atomic Safety and Licensing 19th Floor Board Panel i
l San Francisco, California 94102 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 i
John R. Phillips, Esq.
Simon Klevansky, Esq.
- Atomic Safety and Lacersing Margaret Blodg-+,t, Esq.
Appeal Panel Center for Law in the U. S. Nuclear R~gelatcry Commission Public Interest Washington, D. C.
20555 10203 Santa Monica Drive los Angeles, Cali fornia 90067
- Docketing and Service Section Office of the Secretary David F. Fleischaker, Esq.
U. S. Nuclear Regulatory Commissio.
1919 Pennsylvania Avenue, N.W.
Washington, D. C.
20555 Suite 501 Washington, D. C.
20006 Arthur C. Gehr, Esq.
Snell & Wilmer 3100 Valley Center Phoent:., Arizona 856/3 Janice E. Kerr, Esq.
Lawrence Q. Garcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James 0. Schuyler Nuclear Projects Engineer k
Paci fic Gas & Electric Company b Q 6 S-77 Beale Street L. Ocw Davis San Francisco, Cali fornia 94106 Ccunsel for NRC Staff John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. O. Box 112 5 an Luis Obispo, Cali fornia 93406 U35 u
.