ML19246B498
| ML19246B498 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 05/24/1979 |
| From: | Davis L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907160075 | |
| Download: ML19246B498 (6) | |
Text
'
C DOCUMENT ROOM UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant,
)
Units Nos. 1 and 2)
)
4
- WEE A
~
NRC STAFF RESPONSE TO JOINT DE IAM 3O 1373 PM INTERVENORS' REQUEST TO RE0 PEN c,w#iL*g $
OR DIRECT CERTIFICATION a*
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4 I.
_ Introduction On March 12, 1979, the Atomic Safety and Licensing Board closed the record on the safety hearings in this case following completion of over six weeks of hearings on geologic, seismic, emergency plan and other matters.1/
On May 9, 1979, Joint Intervenors requested that this Atomic Safety and Licensing Board reopen the evidentiary hearings in this proceeding to: (1) require the Staff to supplement the final environmental impact statement to address the environmental consequences of a dass 9 accident; and (2) determine the adequacy 1/ The issue of compliance of the Applicant's emergency plan with the provisions of Appendix E with respect to emergency plan evacuation and medical treatment was litigated in Oc+.ober of 1977 along with several other issues.
Staff Proposed Findings of Fact on Emergency Plan issues were submitted on March 17, 1978. A ruling by the Licensing Board on the issues litigated was reserved for the Initial Decision following completion of the seismic hearings.
364 270 7907160076 of emergency response planning for the Diablo Canyon Station.
In the alternative, Joint Intervenors request that the Licensing Board certify certain questions dealing with Class 9 accidents and emergency plan information to the Commission pursuant to 10 C.F.R. 22.718(i).
The basis for Joint Intervenors' request centers on the recent accident at the Three Mile Island Nuclear Plant (TMI-2).
According to the Joint Intervenors, recent events occurring there require a re-examination of the Diablo Canyon Nuclear Power Plant, at least insofar as the matter of Class 9 accidents and emergency planning are concerned.
For the reasons listed below, the NRC Staff believes that the Licensing Board should defer ruling on the motions to reopen and/or certify pending completion of the Staff inquiry and report as to the effects of the Three Mile Island accident on the Diablo Canyon proceeding.
II. The Motion to Reopen The test for reopening of a closed record is set forth in the Vermont Yankee Power Corporation case. S That case and its progeny set the controlling test for reopening to be whether the movant, who bears the burden in such a motion, has set forth a serious new environmental or safety concern which would warrant reopening the record.
In seeking to apply this standard to the present action, it may be that the information to be obtained from an analysis of the TMI-2 accident will ultimately reflect upon the issues considered in the Diablo Canyon proceeding in a manner sufficient to meet the requirements of Vermont Yankee.
However, it is the NRC Staff's present belief that since the full ramifications of that accident are not yet known, enough data are not available at this time for the parties to comment with sufficient specificity on the' effects of that accident on Diablo Canyon and for the Licensing Board to make a reasoned judgment as to whether the record should be reopened.
~l/ Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520T1973).
364 27,!
. Accordingly, pursuant to its well settled duty to keep the Licensing Board, Appeal Board, and Commission apprised of the status of relevant and material safety mattersE, the NRC Staff will conduct a review of what effect, if any, the experience at TMI-2 (including emergency plan matters) may have on Diablo Canyon in terms of the necessity to supplement, correct, and/or reopen the record in this case.
For this reason, the Staff believes that a ruling on the Motion to Reopen would be premature at this point and therefore recommends that the proper course to follow will be a deferral of a decision on that matter until e inquiry into the effects of TMI-2 on Diablo Canyon has been comrleted by the Staff and served upon the Licensing Board and parties.
Insofar as the Motion to Reopen or Certify is concerned with Class 9 accidents, the Staff notes that existing caselaw and policy dictate that unless "special circumstances" are shown, a Class 9 matter normally will not be addressed in NRC proceedings.
See Offshore Power Systems (Floating fluclear Power Plants),
ALAB-489, 8 NRC 194, 212 (1978). The Staff believes that this special circumstances condition adds another argument why the Board should not rule on the reopening or certification issues until the facts on TMI-2 and their effects, if any, on Diablo Canyon are specifically assayed.
For clearly, special circumstances can scarcely be presented or adequately assessed when the basic facts of the TMI incident are still under investigation.
~f E.g., Duke Power Co. (William B. McCuire fluclear Station, Units 1 and 2),
ALAB-143, 6 AEC 623', 625-26 (1973).
364 27g
. III.
Certification Failing a reopening of the record, Intervenors seek certification to the Commission of the Class 9 and emergency plan legal questions pursuant to 10 C.F.R. 52.718(i).1/ Sinc. the matter of certification by the Licensing Board is dis-cretionary, the flRC Staff believes that the Board should not exercise its discretion to certify those legal questions to the Commission since, as shown above, the record in this case is devoid of any of the facts concerning the rclevance, if ar.c of TMI-2 to Diablo Canyon.
For this reason, the Staff believes that the issues sought to be certified are not yet ripe for either certification or decision by the Licensing Board since any legal decision rendered would, of necessity, have to be decided in a factual void.
IV. Conclusions For the reasons stated above, the f1RC Staff believes that a ruling on Intervenors' Motion to Reopen should be deferred pending a report by the Staff on any effect that the accident at TMI-2 may have on the Diablo Canyon proceeding.
The Staff also recommends the Board exercise its discretion to deny Intervenors' Motion to Certify certain legal issues on Class 9 accidents and emergency plan issues for want of an adequate factual record in this case to decide the proffered legal questions.
Respectfully submitted, L
02 /
G4w L. Dow Davis Dated at Bethesda, Maryland Counsel for fiRC Staff this 24th day of May, 1979 l' 10 C.F.R. 52.718(i) provides that a presiding officer has the power to:
Certify questions to the Commission for its determination, either in his or her discretion or on Direction of the Commission, bbk Y ~j]
U.71TED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD f
In the Matter of
)
)
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)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO JOINT INTERVEN0RS' REQUEST TO RE0 PEN OR DIRECT CERTIFICATION", dated May 24, 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 24th day of May, 1979:
- Clizabeth S. Bowers, Esq., Chairman Mrs. Raye Fleming Atomic Safety and Licensing Board 1920 Mattie Road Panel Shell Beach, California 93449 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Mr. Frederick Eissler Scenic Shoreline Preservation
- 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.
20595 Mrs. Sandra A. Silver 1760 Alisal Street Dr. William E. Martin San Luis Obispo, California 93401 Senior Ecologist Bat telle Memorial Institute Mr. Gordon Silver Columbus, Ohio 43201 1760 Alisal Street San Luis Obispo, California 93401 Philip A. Crane, Jr., Esq.
Pacific Ga5 and Electric Company Richard B. Hubbard 77 Beale Street, Room 3127 MHB Technical Associates San Francisco, Cali fornia 94106 1723 Hamilton Averue - Suite K San Jose, California 95125 Mrs. Elizabeth Apfelberg 1415 Cozadero San Luis Obispo, California 93401 364 27 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. Jones, Esq.
100 Vn Ness Avenue
- Atomic Safety and Licensing 19th floor Board Panel San Francisco, Cali fornia 94102 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 John R. Phillips, Esq.
Simon Klevansky, Esq.
- Atomic Safety and Licensing Margaret Blodgett, Esq.
Appeal Panel Center for Law in the U. S. Nuclear Regulatory Commission Public Interest Washington, D. C.
20555 10203 Santa lionica Drive Los Angeles, California 90067
- Docketing and Service Section Office of the Secretary David F. Fleischaker, Esq.
U. S. Nuclear Regulatory Commission 1919 Pennsylvania Avenue, N.W.
Washington, D. C.
20555 Suite 501 Washington, D. C.
20006 Arthur C. Gehr, Esq.
Snell & Wilmer 3100 Valley Center Phoenix, Arizona 85073 Janice E. Kerr, Esq.
Lawrence Q. Garcia, Esq.
350 McAllister Street San Francisco, Cald'ornia 94102 Mr. Jame.s 0. Schuyler Nuclear Projects Engineer
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[L.DowDavisdtN Pacific Gas & Electric Company
[y~ t 77 Beale Street San Francisco, Cali fornia 94106 Counsel for NRC Staff John Marrs Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. O. Box 112 S an Luis Obispo, Cali fornia 93406 bb4
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