ML20005B838
| ML20005B838 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/28/1981 |
| From: | Oglesby D PACIFIC GAS & ELECTRIC CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8109020351 | |
| Download: ML20005B838 (10) | |
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1 UNITED STATES OF AMERICA Offi:e cf th S::rt:ary 2
NUCLEAR REGULATORY COMMISSION 99dt.i:s&StT.2 U
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BEFORE THE COMMISSION IV 4
5 In the Matter of
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6 PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos 50-275
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50-323 7
(Diablo Canyon Nuclear Power
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Plant, Units 1 and 2)
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(Low Powe /
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10 PACIFIC GAS AND ELECTRIC COMPANY'S OPPO IONG
[6' TO MOTION OF GOVERNOR EDMUND G. BROWN, R. D N,
11 FOR WAIVER OF IMMEDIATE EFFECTIVENESS RULE 4 l' M, [\\
AND DIRECT COMMISSION REVIEW OF THE 6 12 LICENSING BOARD'S JULY 17, 1981 DECISION W'"
f AND ITS MOTION TO STRIKE AN UNAUTHORIZED PLEADING 13 14 I
15 INTRODUCTION 16 Governor Brown's motion is an attempt both to 17 (1) obtain a stay of the Atomic Safety and Licensing Board t
18
(" Licensing Board") decision authorizing fuel loading and l
3 19 low power tests at Diablo Canyon Nuclear Power Plant SO
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("Diablo Canyon"), and (2) comment on this Commission's l
21 upcoming sua sponte review of that decision under 10 C.F.R. 22 S 2.764 where such comments are not,,c rmitte d.
Considered 23 as a stay, the Governor has failed to comply with the 24 procedures and cribria of 10 C.F.R.
S 2.788, including i
25 failing to file his motion first with the Atomic Safety and l~~
26 Licensing Appeal Board
(" Appeal Board"), as required by t
4 l
8109020351 810828 l
PDR ADOCK 05000275 G
m.
1 section 2.788 (h).
Considered as an impermissible pleading 2
under section 2.764, the Governor's motion places Pacific i
3 Gas and Electric Company ("PGandE") in the position of 4
either complying with section 2 764 and not responding
.I 5
substantively to the Governor's comments or violating the 6
rule in order to correct the Governor's misleading and 7
incorrect view of the low-power record.1/
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8 PGandE requests that this Commission strike the 9
Governor's impermissible and improper motion from the record 10 as an unauthorized pleading.
11 II 12 THE GOVERNOR'S PLEADING IS DEFECTIVE 13 AND IMPERMISSIBLE AND MUST BE STRICKEN 14 The Governor asks this Commission to stay the l-15 effectiveness of the, low power decision until it completes 16 review of that decision on the merits.2_/
The Governor 17
.l_/
Through the vehicle of this so-called " waiver" motion, l
18 the Governor has also attempted improperly to place l~
before this Commis:ic.. certain " factual" material.
In 19 addition to a few carefully selected portions of the low-power record, these include an affidavit (Felty' l
20 submitted after the Licensing Board closed the low-power record and which was never accepted by the 22.
Board.
Moreover, although including the affidavit'of Mr. Jorgensen, the Governor does not include that 22 portion of the low-power hearing record containing the testimony of San Luis Obispo County Sheriff Whiting, 23 who flatly contradicted Jorgensen. The Governor's effort to precondition and mislead this Cornmission is 24 highly irregular and must not be countenanced.
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The Governor also requests that the appeals from the Licensing Board's low power decision be reviewed l
26 directly by this Commission, bypassing the Appeal (Continued on next page.)
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ciaims that unless this is done, he will be " denied a. timely 2
opportunity to advise the Commission of the serious legal 3
and f actual errors made by the Board. "
Brown Motion at 2.
4 This assertion is, quite frankly, absurd.
5 There has long existed a procedure by which a 6
party any party, including a representative of an 7
interested state 3_/ - may attempt to obtain review of a 8
licensing decision on the merits before it becomes 9
effective.
Section 2.788 of the Commission's regulations 10 (10 C.F.R.
S 2.788) sets forth the criteria and procedures 11 for obtaining a stay of the effectiveness of the Licensing 12 Board's de. cision pending its review.
This is precisely what 13 Governor Brovn seeks by way of this irregular request for a 14
" waiver."
If ;-he Governor can make the proper showing 15 required by section.2.788 (e), review will take place before 16
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(Continued) 19 Board.
Brown Motion at 2.
Although the Governor has linked his so-called " waiver" request to his plea for 20 direct Commission review, the question of who should review the decision is a completely separate issue from 21 whether the effectiveness of that decision should be stayed pending review.
PGandE, of course, strenuously 22 objects to any stay of effectiveness, and if a procedurally proper stay motion is ever made will l
2,3 demonstrate that a stay is unwarranted.
24 3/
While the Governor complains that somehow the rights of the State of California are being trampled (Brown 25 Motion at 8-9), as a state representative he can only assert his own rights.
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1 rhe low power decision becomes effective.
He has not even 2
attempted this showing.4_/
3 Apparently, the Governor believes that the 4
Commission's immediate effectiveness rule somehow cucs off 5
rights he otherwise had.
This is simply not true.
- o the 6
- contrary, this review of certain policy issues under 7
section 2.764 prior to allowing the Licensing Board's 8
decision to become effective constitutes an additional 9
measure of procedural protection of the public health and 10 safety which was adopted by this Commission as a response te 11 TMI.
This Commission elected to provide this additional 12 13
-4/
10 C.F.R. 5 2.788(e) provides as follows:
(e)
In determining whether to grant or deny an application for a stay, the Commission, 14 Atomic Safety and Licensing Appeal Board, or presiding officer will consider:
15 (1)
Whether the moving party has made a strong shouing that it is likely to 26 prevail on the merits; (2)
Whether the party will be irreparably 17 injured unless a stay is granted; (3)
Whether the granting of a stay would 18 harm other parties; and l
(4)
Where the public interest lies.
l 19
- ech of the Governor.'s motion papers is devoted to asserting various inadequacies in the state of Diablo 20 Canyon's low power emergency preparedness.
Arguably this could be construed as an effort, however 21 inadequate, to comply with only the first of the s'tay requirements, that he make " a strong showing that [he]
22 is likely to prevail on the merits."
The Governor has not favored us with any showing, however, on the other 23 three factors.
If this Commission, despite the defedts in the 24 Governor's motion, nevertheless decides to consider his alle,gations of errors, PGandE requests an opportunity 25 to respond.
PGandE has elected not to respond to this aspect of the Governor's motion now in the hope of 26 avoiding the inevitable paper war and consequent delay which would follow had it done so.
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review while at the same time.prsserving intact and 2
unchanged all other preexisting review and stay procedures.
3 As this Commission stated in amending section 2.764, 4
This amendment does not compromise the Commission's commitment to the 5
protection of public health and safety l
or to a fair hearing process.
Thorough 6
technical safety reviews of license applications by the NRC staff and the 7
Advisory Committee on Reactor Safeguards, the availability of public 8
hearings on license applications, and the Commission's inherent supervisory 9
authority form the basis of the network of procedural safeguards intended to 10 implement this commitment to a fair decision process and public health and 11 safety.
These are all unaffected by the instant rule change.
When warranted,
.12 stays of, effectiveness remain available pursuant M the standard procedure and 13 criteria of 10 CFR 2.788.
[46 Fed. iIeg. at 28628; emphasis added.)
Neither the Governor nor any other party is being denied an l
opportunity to communicate with the Commission by reason of section 2.764.5/
17 18 5/
The Governor argues that section 274 (1) of the Atomic Energy Act and 10 C.F.R.
S 2.715 (c)
" require the 1
19 Ccmmission to afford the Governor the opportunity to l
advise the Commission on the merits of the Licensing l
20 Board's decision."
Brown Motion at 2.
Ignoring for l
the noment that section 274 has nothing; at all to do 21 with the licensing of nuclear power plgnts (it relates instead to state-NRC cooperation co$cerning the 22 regulation of certain nuclear materifils), there is nothing in either the Atomic Energy' Act or the 23 Commission's regulations which states that this opportunity insofar as it relates to review of 24 licensing decisions must be afforded prior to the licensing decision's effectiveness without first making 25 the proper showing to obtain a stay.
The Governor's insinuation that he is being denied administrative due 26 process is without merit.
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1 Additionally, even considering the Governor's 2
moti nn an a "9tiver" request, he has failed to comply with 3
the criteria and procedures of 10 C.F.R. S 2.758.
According 4
to section 2.758 (b), "[t]he sole ground" for a petition for 5
waiver of a Commission regulation "shall be that special 6
circumstances with respect to the subject matter of the 7
particular proceeding are such that application of the rule 8
or regulation
. would not serve the purposes for which 9
the' rule or regulation was adopted."6]
10 The purpose for which the Commission amended 11 section 2.764 was "to expedite the review process," and more 12 specifically, "to reduce or eliminate the delay between 13 completion of construction and issuance of an operating 14 licensing following a favorable licensing board decision."
15 46 Fed. Reg. 28627.,
16 Governor Brown does not argue that the amended 17 section 2.764, as applied to Diablo Canyon, would not 18 19
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Section 2.758 also requires that "[t}he petition shall be accompanied by an affidavit" identifying as to.the particular proceedincj how the challenged rule would not 20 serve its intended purpose and setting forth the special circumstances justifying the waiver.
The i
21 petition is to be filed with the Licensing Board, whose l
presiding officer is required to make a determination 22 that a prima facie showing has been made as a condition to certifying the question to the Commission.
In 23 addition to bypassing the Licensing Board, and thereby depriving this Commission of the benefit of the 24 presiding officer's views, Governor Brown has not submitted the required affidavit.
His purported waiver 25 req 0est is thus fatally defective ar this independent reason.
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accomplish [ts intended purpose.
Rather, he complains that 1
2 the rule will accomplish precisely what it was intended to 3
do, expedite review and shorten the period between the 4l, Licensing Board's decision and the decision's effectiveness.
5 The Governor simply does not like the intended 6
result of the application of section 2.764 to Diablo Canyon.
7 Instead, he wants further delay, a return to the lengthy 8
pre-effectiveness review procedure called for in.the 9
discarded appendix B to 10 C.F.R.
part 2.
The Governor 10 offers
- nothing, much less "special circumstances,"
11 suggesting that the amended section 2.764, as applied to 12 Diablo Canyon, will operate contrary to its intended 13 purpose.
14 The Governor has failed to meet the standards of 15 section 2.758 to warrant this Commission's consideration of l
16 his motion to " waive" the immediate effectiveness rule.
17 III 18 CONCLUSION 19 Stripped of its camouflage, the Governor's motion 20 is a calculated effort to circumvent this Commission's j
21 prohibition against the filing of pleadings in connection l
22 with its section 2.764 review of low-power licensing 23 decisions and to obtain a stay without complying witn the i
24 proper procedures and criteria.
25 The Governor's expedient of styling his papers as 26 a " waiver" request cannot alter his clear purpose of 9
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1 influencing this Commission in its immediate effectiveness 2
review of the Licensing Board's low-power decisicn - even 3
prior to that decision's transmittal to the Commission.
4 This improper and impermissible pleading should be stricken.
5 Respectfully submitted, 6
MALCOLM H. FURBUSE PHILIP A. CRANE, JR.
7 DOUGLAS A. OGLESBY F.
RONALD LAUPHEIMER 8
Pacific Gas and Electric Company P. O. Box 7442 9
San Francisco, California 94120 (415) 781-4211 10 ARTHUR C. GEHR 11 Snell & Wilmer 3100 Valley Bank Center 12 Phoenix, Arizona 85073 13 BRUCE NORTON Norton, Burke, Berry & Junck 14 3216 North Third Street Suite 300 15 Phoenix, Arizona 85012
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(602) 264-0033 16 Attorneys for 17 Pacific Gas and Electric Company _
18 BY 554 20 DOUGLfS A. OGLy$BY 21 Dated:
August 28, 1981 22 23 s
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i....n In the Matter of
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14 PACIFIC GAS AND ELECTRIC COMPANY )
Docket No. 50-275
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Docket No. 50-323 Units 1 and 2
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Diablo Canyon Power Plant
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CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:
Judge John F. Wolf Mrs. Sandra A.
Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo, California 93401 U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O.
Bright San Luis Obispo, California 93401 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission John Phillips, Esq.
Washington, D.C.
20555 Joel Reynolds, Esq.
Center for Law in the Public Interest l
Judge Jerry R.
Kline 10203 Santa Monica Drive l
Atomic Safety and Licensing Board Los Angeles, California 90067 U. S. Nuclear Regulatory Commission l
Washington, D.C.
20555 David F.
Fleischaker, Esq.
l 1735 Eye Street, N.W.
l Mrs. Elizabeth Apfelberg Suite 709 c/o Nancy Culver Washington, D.C.
20006 192 Luneta Drive l
San Luis Obispo, California 93401 Arthur C. Gehr, Esq.
Snell & Wilmer Janice E.
Kerr, Esq.
3100 Valley Bank Center Public Utilities Commission Phoenix, Arizona 85073 of the State of California 5246 State Building Bruce Norton, Esq.
350 McAllister Street Norton, Burke, Berry & Junck San Francisco, California 94102 3216 North Third Street Suite 300 l
Mrs. Raye Fleming Phoenix, Arizona 85012 1920 Mattie Road Shell Beach, California 93449 Chairman l
Atomic Safety and Licensing Board Panel
!..btr. Frederick Eissler U. S.
Nuclear Regulatory Commission l
Scenic Shoreline Preservatibn Conference, Inc.
Washington, D.C.
20555 4 623 More Mesa Drive i
Santa Barbara, California 93105
' Chairman Dr.
W. Reed Johnson Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Board U S. Nuclear Regulatory Commission U. S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Secretary (2)
Dr. John H. Buck U.
S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U. S. Nuclear Regulatory Commission Attn.:
Docketing and Service Section Washington, D.C.
20555 William J. Olmstead, Esq.
Nunzio J. Palladino, Chairman Charles Barth, Esq.
U. S. Nuclear Regulatory Commission Edward G. Ketchen, Esq.
1717 H Street, N.W.
Lucinda Low SwafR3, Esq.
Washington, D.C.
20555 Office of Executive Legal Director BETH 042 John F. Ahearne, Commissioner U.
S.
Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C.
20555 1717 H Street, N.W.
Washington, D.C.
20555 Mr.' Richard B.
Hubbard MHB Technical Associates Victor Gilinsky, Commissioner 1723 Hamilton Avenue, Suite K U. S.
Nuclear Regulatory Commission San Jose, California 95125 1717 H 5treet, N.W.
Washington, D.C.
20555 Mr. Carl Neiberger Telegram Tribune Peter Bradford, Commissioner P.
O.
Box 112 U. S. Nuclear Regulatory Commission San Luis Obispc, California 93402 1717 H Street, N.W.
Washington, D.C.
20555 Harbert H. Brown, Esq.
Lawrence Coe Lanpher, Esq.
Thomas Roberts, Commissioner Christopher B.
Hanback, Esq.
U. S. Nuclear Regulatory Commission Hill, Christopher & Phillips 1717 H Street, N.W.
1900 M Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 l
Byron S. Georgiou, Esq.
l Daputy Legal Affairs Secretary l
Governor's Office State Capitol Sacramento, California 95814 l
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Douglas A.
Oglesby Attorney for f
Pacific Gas and Electric Company L
f Dated:
August 28, 1981
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