ML20009G899
| ML20009G899 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/04/1981 |
| From: | Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8108050206 | |
| Download: ML20009G899 (8) | |
Text
,
8/4/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD o l "[
In the Matter of
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 0.L.
! S
)
50-323 0.L. '
6 (Diablo Canyon Nuclear Power Plant )
'j g~
Unit Nos. 1 and 2)
)
g p'
Q h4
'/
8 RESPONSE TO GOVERN 0R BROWN'S MOTION TO REOPEN THE RECORD IN THE LOW POWER PROCEEDING
[, g g
-s INTRODUCTION AND BACKGROUND On July 14, 1980, PG&E filed a motion before the Atomic Safety and Licensing Board (ASLB) requesting authorization for fuel loading and low power testing. Following 5 earings held from May 19 to 22,1981, the record was closed and findings were filed by the parties. On July 15, 1981, Gover. Brown filed a pleading entitled " Motion of Governor Edmund G. Brown, Jr. to Reopen Record to Correct Staff Misstatement." Shortly the.eafter, on July 17, 1981, the Licensing Board issued a partial r
initial decision authorizing issuance of a low power license subject to a favorable decision by the Appeal Board on the remaining security issues.
Governor Brown seeks to reopen the record because a Staff witness, John Sears, testified during cross-examination by Joint Intervenors' counsel that " Bullhorns from the helicopter could warn anybody in that area."
(Tr. 11068, line 12). The Governor admits that helicopters are available for emergency operations.
However, he alleges that bullhorns are not available for use with the helicopters. As grounds for raising 9 507 s
8108050206 010804 PDR ADOCK 05000275 PDR g
2_
this point at such a late date, the Governor argues that he only learned of the helicopter statement at the hearing.
(Motion p. 4 fn. 3). The i
NRC Staff opposes the motion.
DISCUSSION The test for reopening a closed record is (1) there must be significant new inrormation and (2) that information must be such as would haver changed the result if originally considered.
Kansas Gas
& Electric Co. et. al. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978). After the Licensing Board has issued its final decision, as is the case in the present proceeding, the party seeking to reopen the record bears the heavy burden of showing that the new information was unavailable prior to the close of the hearing.
Northern States Power Company, et. al. (Tyrone Energy Park, Unit 1)
ALAB-464, 7 NRC 372, 374 n.4 (1978).
Governor Brown has failed to meet the requirements for reopening the record. Governor Brown claims that the whole subject of using helicopters was not brought to his attention until he learned of Mr.
Sear's statements.
(Governor Brown's Motion at 3). However, the fact that Governor Brown had not explored the extent to which helicopters might be used, or the capability of their use, does not mean that the "new" information was unavailable prior to the close of the hearing.
First, the whole subject of evacuation of the Montana de Oro State Park was not an item which was unknown prior to Mr. Sear's statements.
Evacuation of the park is discussed in the San Luis Obispo County
_y.
,,-y.
7
evacuation plan. That plan specifically states that "because of the remoteness of some hiking trails that are used by Park visitors, personnel on foot or using horses must be utilized.
In addition, use of a helicopter to notify park visitors on remote trails should be considered." San Luis Obispo County Nuclear Power Plant Emergency Evacuation, 9 B.3.K., p. 35.
[ emphasis added]. The county plan was available to the Governor well before the hearing and the Governor should have been well aware of not only the need to evacuate the park, but the possibility that a helicopter would be used as a method of notification.
In fact, it is a reasonable conclusion that Governor Brown was aware of the need to evacuate the park, since the Governor's counsel was the first to explore the issue of evacuation of Montana de Oro State Park during cross examination of the PG&E panel.
(ASLB Hearing Tr. at 10807).
Governor Brown engaged in discovery on emergency planning for a period of almost six weeks prior to the hearing.
Neither Governor Brown, nor the affidavit of Richard Felty attached to the Governor's motion to reopen, alleges that the capabilities of the helicopters available for use during an evacuation of the Montana de Oro State Park has changed since the time for discovery commenced. Thus, the information which Governor Brown now seeks to use as a basis for reopening the low power proceeding is not new information which was unavailable prior to the close of the hearing.
In addition, the Staff does not believe that the information
)
presented in Governor Brown's motion is such as would have led to a different result to that reached by the Licensing Board in the low power 1
proceeding.
It should be noted to begin with, that Mr. Sears specifically stated during the hearing that he had never verified that the helicopters had the capability to notify persons in the park, other than to ?ad of the planned use of the helicopters. Tr. at 11068.
Significantly, Mr. Sears direct testimony does not mention helicopters equipped with bullhorns. The matter of how the helicopter will communicate with park visitors is addressed it. exactly three lines of cross examination of Mr. Sears by Joint intervenors' counsel. Mr.
Sears stated that helicopters could be in tne area and that " Bullhorns from the helicopter could warn anybody in that area. f_Tr.11068 lines11-13J. Mr. Sears then testified that that capability had not been demonstrated by a specific helicopter f rom that base and that he was basing his testimony on a review of the plans of PG&E and the Sheriff 4 Obvicusly, the Governor could have followed this matter up by referring Mr. Sears to the appropriate sections of the plans and clarifying the matter with other witnesses frora PG&; or the Sheriff's office, but chose not to do so. E The Staff objects to characterizing an obvious inference drawn by Mr. Sears as a "muerial misstatement."
Inferences are conclusions which The are properly drawn as logical consequences from certain information.
testimony clearly indicates the basis for Mr. Sears' conclusion and the The Governor attaches an affidavit from Richard E. Rity with the y
California State Department of Parks and Recreation which in pertinent part is based on a conversation with a Chief Warrant Officer at Fort Ord, California. This tcarsay statement is set fortn in detail by Mr. Felty.
It is not evident that either Mr.
Felty or the Chief Warrant Officer is expert in acoustics nor are they prepared to mle out the use of properly equipped helicopters.
degree to which it was verified.
It devolved to the Governor or Joint Intervenors to rebut the inference if they believed it should not be drawn.
The Licensing Board apparently recegnized that the capability of the helicopters to notify park visitors was unconfirmed as evidenced by the language of the Board's factual findings. The Licensing Board stated:
"117.
Evacuation of the State Park would be coordinated with State Persons in remote sections of the park can be Park personnel.
notified by personnel on foot or using horses... Mr. Sears also testified that the Sheriff has an agreement with Hunter Ligget Air Force Base for use of a helicopter which, when equipped with bullhorns could be used to warn persons in the park. The helicopter can fly in adverse weather." PID at 46. [ emphasis added].
The above paragraph illustrates two facts.
First, the Licensing Board was not assuming that the helicopter was already equipped with the bullhorns, but rather, stated that "when" equipped with bullhorns they could be used to warn visitors to the park. Secondly, it indicates contrary to the statement by Governor Brown in his motion to reopen, that methods other than helicopters are not only available, but are expected to be used to notify visitors to the park. The importance of these two facts is that they are evidence that the use of helicopters to notify visitors to the park was not a crucial element in the Licensing Board's It is worthy of some note that the finding by the Board on the decision.
use of helicopters to notify park visitors was but one line out of some 94 paragraphs and 34 pages of the Licensing Board's opinion which dealt with the emergency planning issue. While this fact alone does not indicate that the fact identified is unimportant, it would seem, as a practical matter, to require the Governor to make a clear showing that I
. the information was such as would have led to a different result. The l
Governor has not made any suc.h clear showing in his motion.
CONCLUSION In order to reopen the closed record in the Diablo Canyon low power testing proceeding, Governor Brown must show (1) significant new information; (2) the new information was not available prior to tha close j
of the record; and (3) that the netw information would have changed the result if originally considered. As demonstrated above, the information l
is not new, and, in fact, was available long before the close of the record if Governor Brown had made an effort to obtain the information during the weeks available for discovery prior to the close of the.
l record.
In addition, the information does not appear to be of such stature that it would change the initial result reached by the Licensing j
Board. For the above reasons the NRC Staff opposes Governor Brown's motion to reopen and urges this Board to deny that motion.
Respectfully submitted.
h[kr l/ N
. V s-i' W %
l Bradley Jones Counsel for NRC Starf Dated at Bethesda, Maryland this 4th day of August, 1981.
l 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)I In the Matter of PACIFIC GAS AND ELECTRIC COMPANY h
Docket Nos. 50-275 0.L.
h) 50-323 0.L.
(Diablo Canyon Nuclear Power Plant Unit Nos. I and 2
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE TO GOVERNOR BROWN'S MOTION TO REOPEN THE RECORD IN THE LOW POWER PROCEEDING 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 Comission's internal mail system, this 4th day o' August,1981.
John F. Wolf, Esq., Chairman Richard E. Blankenburg Cv-publisher Administrative Judge Atomic Safety and Licensing Board W;ryne A. Soroyan, News Reporter U.S. Nuclear Regulatory Commission South County Publishing Company Washington, D.C.
20555
- P.O. Box 460 Arroyo Grande, California 93420 Glenn 0. Bright, Esq.
Administrative Judge Marjorie Nordlinger Atomic Safety and Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Washington, D.C.
20555
- Dr. Jerry Kline Mr. Gordon Silver Administrative Judge Mrs. Sandra A. Silver Atomic Safety and Licensing Board 1760 Alisal Street U.S. Nuclear Regulatory Commission San Luis Obispo, California 93401 Washington, D.C.
20555
- Arthur C. Gehr, Esq.
Elizabeth Apfelberg Snell & Wilmer 1415 Cozadero 3100 Valley Center San Luis Obispo, California 93401 Phoenix, Arizona 95073 Paul C.' Valentine, Esq.
Philip A. Crane, Jr., Esq.
Pacific Gas and Electric Company 321 Lytton Avenue P.O. Box 7442 Palo Alto, California 94302 San Francisco, California 94106 Bruce Norton, Esq.
Mr. Frederick Eissler 3216 North 3rd Street Scenic Shoreline Preservation Suite 202 Conference, Inc..
Phoenix, Arizona 85012 1
4623 More Mesa Drive Santa Barbara, California 93105 Andrew Baldwin, Esq.
124 Spear Street Mrs. Raye Fleming San Francisco, California 94105 1920 Mattie Road Shell Beach, California 93449
John R. Phillips, Esq.
Atomic Safety and Licensing Appeal Simon Klevansky, Esq.
Panel Margaret Blodgett, Esq.
U.S. Nuclear Regulatory Commission Marion P. Johnston, Esq.
Washington, D.C.
20555
- Joel Reynolds, Eso.
Atomic Safety and Licensing Board Center for Law in the Public Panel.
Interest 10203 Santa Monica Boulevard U.S. Nuclear Regulatory Commission Los Angeles, California 90067 Washington, D.C.
20555
- Docketing and Service Section Byron S. Georgiou U.S. Nuclear Regulatory Commission Legal Affairs Secretary Governor's Office Washington, D.C.
20555
- State Capitol Sacramento, California 95814 Mark Gottlieb California Energy Comission David S. Fleischaker, Esq.
MS-18 Suite 709 1111 Howe Avenue 1735 Eye Street, N.W4 -
Sacramento, California 95825 Washington, D.C.
20006 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.O. Box 112 San Luis Obispo, California 93406 Herbert H. Brown Hill, Christopher & Phillips, P.C.
1900 M Street, N.W.-
Washington, D.C.
20036 Harry M. Willis Seymour & Willis 601 California St., Suite 2100 San Francisco, California 94108 Janice E. Kerr, Esq.
Lawrence Q. Carcia, Esq.
350 McAllister Street San Francisco, California 94102 Mr. James 0. Schuyler BradlyfW.Jorg Nuclear Projects Engineer Counsel for )fRC Staff Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106
... -..