ML20010E588
| ML20010E588 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/02/1981 |
| From: | Bradley Jones, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OL, NUDOCS 8109080010 | |
| Download: ML20010E588 (14) | |
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U!41TED STATES OF AMERICA liUCLEAR REGULATORY C0tU11SS10t4 BEFORE THE C01411SSION In the Matter of
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PACIFIC GAS AllD ELECTRIC COMPANY
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Docket Nos. 50-275 0.L.
50-323 0.L.
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14RC STAFF RESP 0 rise TO AUGUST 13, 1981
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I10TIOld 0F GOVER!40R BROWN 5#G>U "2 William J. Olmstead Deputy Chief ilearing Counsel Bradley W. Jones Counsel for 14RC Staff September 2, 1981 7
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UNITED STATES OF AllERICA NUCLEAR REGULATORY C0!U41SSION BEFORE THE C011141SSION F
In the flatter of
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PACIFIC GAS Ai40 ELECTRIC C0!4PANY
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Docket Hos. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power
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Plant, Unit Nos.1 and 2)
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NRC STAFF RESPONSE TO AUGUST 13, 1981 140 TION OF GOVERNOR BROWN BACKGROUllD On July 17, 1981, the Atomic Safety and Licensing Board issued a Partial Initial Decision (PIO) on the application of Pacific Gas and Elec-tric Company (PG&E) for a fuel load and low power testing license for the Diablo Canyon Nuclear Power Plant. That decision authorized issuance of the fuel load and low power operating license pending a favorable ruling by the Appeal Board on certain security issues pending before it.
The Comission issued an Order on July 22, 1981 indicating that the period for review of the Licensing Board's decision would not begin to run until the Appeal Board issued its security decision. As of the date of this document, the Appeal Board had not yet issued its decision on the security issues. On August 13, 198:, Governor Brown filed a "liotion of Governor Edmund G. Brown, Jr. for Waiver of the Immediate Effectiveness Rule and Direct Comission Review of j
the Licensing B ord's July 17, 1981 Decision". The Staff opposes the Governor's motion.
DISCUSSION A.
Waiver of the Immediate Effectiveness Rule Governor Brown urges that the provisions of 10 C.F.R. 9 2.764 which bar the filing of pleadings with the Commission during the review process for i
m low power licensing provided for under that regulation, be waived in the Diablo Canyon proceeding. The basis for the Governor's request is that application of the rule, " contrary to its intended purpose, would preclude Governor Brown from advising the Comission of the serious legal and factual errors in the Licensing Board's July 17, 1981, Partial Initial IJecision...".
(Governor Brown's Motion at 1).
Indeed, 10 C.F.R.
b 2.758(b) does provide that the sole g.wnds for a waiver shall be that special circumstances exist such that application of the rule would not serve the purposes for which the rule exists. However, Governor Brown has misstated the purposes of the provisions of 10,C.F.R. s 2.764. The Statement of Considerations filed with the adoption of 10 C.F.R. 9 2.764 states that the purpose of the rule is to detarmine whether the effec-tiveness of the granting of an operating license shculd be delayed pending normal agency appellate review, and to reduce the length of time between a Licensing Board's decision permitting fuel loading and low power testing and the cetual issuance of the operating' license. (45 Fed.
Reg. 28627, May 28,1981).
The Statement of Considerations notes that the Commission does not intend to review the entire record developed during the licensing proceeding, but rather intends only to focus narrowly on significant policy issues.
(Id. at 28628). Thus, contrary to Gover-nor Brown's assertion, the purpose of the rule has nothing to do with providing parties to the proceeding an opportunity to be heard by the Cocnission. Governor Brown's opportunity to advise the Commission in this proceeding is preserved through the provisions of 10 C.F.R. 9 2.762 on petitions for review to the Comission and 10 C.F.R. @ 2.788 on motions for stays.
As noted in the underl!ned language above, the provisions of 10 C.F.R. j 2.764 were not intended to replace or reduce the availability of the normal agency appellate process.
The Governor cites Section 274(1) of the Atomic Energy Act (Act) asindicdtingthatthepurposeoftheregulationistogiveaninterested state an opportunit) to be heard on the issue of granting a license.
(Governor Brown's Hotion at 3). While Section 274(1) of the Act does provioe that an interested state must have a reasonable opportunity to offer evidence, interrogate witnesses, and advise the Commission as to an application for an operating license, there is clearly no basis for arguing In that 10 C.F.R. 5 2.764 was meant to implement that section of the Act.
fact, the Couaission's regulations, as noted above, otherwise provide a reasonable opportunity for the Governor to advise the Commission.
Governor Brown argues that the Governcr's presentation to the Licensing Board cannot satisfy the Conaission's obligations under Section 274(1) of the Act because the issues the Governor wishes to address concern errors made in the PID. (Governor Brown's Motion at 3, n.4).
The PIU was issued after the Governor made his presentations to the Licensing i
Even if it is assumed that the Governor's arguments are on issues Board.
arising since the presentations made to the Licensing Board, the Governor has ample opportunity to raise those arguments under various regulations otner than 10 C.F.R. s 2.764.
Under 10 C.F.R. 9 2.762, any party may appeal an initial licensing decision.
10 C.F.R. 9 2.758(a) delegates The Governor, the Commission's appellate authority to the Appeal Board.
therefore, has the opportunity to present all his positions on the In issues in the low power licensing proceeding to the Appeal Board.
aadition,10 C.F.R. b 2.786(b) specifically provides for Connission review of Appeal Board decisions alleged to be erroneous on important
. questions of fact or law. Thus, the discussion Governor Brown wishes the Commission to allow under 10 C.F.R. 5 2.764, is specifically provided for in other regulations which fulfill NRC's responsibilities under Sec-i tion 274(1) of the Atomic nergy Act.
In addition, Governor Brown's posi-tion that application of the rule as written would foreclose him from making any substantive presentation to the Commissioners prior to the time that the plant goes critical is simply not correct. The Comission provided in Section (f)(2)(vi) of 10 C.F.3. i 2.764 that any action under that provision was without prejudice to Appeal Board or other Commission decisions, includino decisions on stay requests filed under 10 C.F.R. 9 2.788.- Thus, if Governor Brown does indeed have information neeting the requirements of the stay provisions, he can apply to the Commission's boards under that provision to have the Licensing Board's decision stayed pending the Appeal Board's consideration of an appeal.
Governor Brown is well aware of these provisions as is demonstrated by the fact that by filing a statement of exceptions with the Appeal Board on August 3,1981, he has initiated an appeal to the Appeal Board alleging the same errors as raised in his present motion. (Motion of Governor Brown at2,n.2). Thus, the application of 10 C.F.R. 5 2.764 to the Licensing Board decision on the low power <.pplication for Diablo Cany',n Nuclear Facility would not result in any failure of the Comission to meet its obligations under the Atomic Energy Act.
Even if Governor Brown's identification of the purpose of 10 C.F.R.
b 2.764 were coreect, an examination of the factual and legal errors alleged by the Governor reveals that the Governor has been heard on these issues, and applying the rule would not be inconsistent with the rule's The first factual error alleged by Governor Brown in his motion purpose.
. is that the Licensing Board erred in finding the local emergency plan and t
energency prepacedness adequate for low power operation of the Diablo Canyon ljuclear Facility.
(Governor Brown's Motion at 4). The affidavit I
attached as evidence of this error is, in actuality, a copy of the testimony that was presented on this issue by Mr. Jorgenson at tha low power proceeding before the Licensing Board.
' Transcript at 10901).
Tnis testimony was addressed by the Board in its Partial Initial Decision of July 17, 1981.
(PID at 47-49).
In addition, the Licensing Board noted in its findings of fact the various elements of emergency planning which are available for Diablo Canyon.
(PID at 36-50). Thus, Governor Brown has already presented his position and had an opportunity to rebut There are not, the Applicant's and Staff's positions in this proceeding.
on the basis of this alleged error, special circumstances under 10 C.F.R.
s 2.758 justifying a waiver of 10 C.F.R. s 2.764.
The second error alleged by Governor Brown is that there is no proven means for notifying and evacuating persons frad the remote areas of i4ontana de Oro State Park.
(Governor Brown's Motion at 5).
In fact, the Board made a specific finding on the issue of notifying persons in the park.
(PID at 46).
In addition, with respect to the Governor's referenced motion on this issue, it addressed only one of three methods of notification identified by the Board, and does not affect any method of evacuation which was identified for the park.
(Id. and Governor Brown's Motion, attachment 2). Thus, this issue also fails to present "se cial circumstances" justifying a departure from the regulatory scheme of 10 C.F.R. s 2.764.
The third error alleged by Governor Brown is that the emergency plans of PG&E do not address the effects of earthquakes on the plans.
l (Governor Brown's notion at 5). As testified to by Staff witnesses, and i
as noted by the Board, the effect of earthquakes on the eraergency plan is the subject of a study presently being conducted and PG&E will make any modifications indicated by the study as being necessary.
(Sears Testimony at 7; Tr. at 11057-11060, PID at 47). Again, the Licensing Board was pre-sented with Governor Brown's ar[uments and raade findings on the issue.
(Tr. at 11283-11289, Gov. Brown's Proposed Findings of Fact and Conclusions of Law at 68-71). The Governor has not presented any information additional to that already considered by the Licensing Board which raight be considered as raising special circumstances justifying a waiver of the Cor,raission's regulations.
The fourth error alleged by Governor Brown is that the Licensing Board's ruling was incorrect with respect to the effect of SECY-81-188 on PGhE compliance with 10 C.F.R. 50.47 as it applies to the Diablo Canyon Emergency Plan. The Governor raischaracterizes the Licensing Board's ruling when he states that the Board's ruling changed the Comraission's emergency planning and preparedness regulations in Section 50.47.
(Governor Brown's Motion at 6). As the Licensing Board specifically noted with respect to this argument, the substance of Section 50.47 is not altered by SECY-81-188. The SECY paper only deals with the schedule for implementation of the eraergency planning requireraents, a subject not specifically dealt with in Section 50.47.
In adoition,10 C.F.R. 50.47(c)(1) specifically allows the applicant to deraonstrate that the deficiencies in the plans are not significant for the plant in question.
Contrary to Governor Brown's assertion at p. 5 of his motion, the l
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- testimony at the hearing did cddress the insignificance of the defici-encies by addressing the low risk at low power.
(Sears Testimony at 4-5, Tr.110p2-11066, Brunot Testimony, Lauben Testimony). This demonstration was the basis for the Licensing Board's findings. (PID at 22-35). There is nothing in 10 C.F.R. 9 50.47 which prevents the applicant from showing the insignificance of the deficiencies via a general showing of insignifi-cance which applies to all the deficiencies. There is no requirement of a deficiency-by-deficiency examination. The applicant has demonstrated to the Board, because of the emergency planning that does exist, and the low risk at low power, that any deficiencies remaining are insignificant for low power operation. Thus, the error alleged by Governor Brown as to the Licensing Board's application of SECY-81-188 is in fact not an error, and special circumstances justifying a waiver of the Comraission's re,Ja-tions do not exist on that basis.
The fifth error alleged by Governor Brown as the basis for waiver of 10 C.F.R. 9 2.764 is that the Licensing Board erred in rejecting several of Governor Brown's subjects and Joint Intervenors' contentions. This is clearly a subject properly handled through the normal agency appellate procedures. There is nothing special or unusual about an intervenor having some contentions s cjected. The Governor simply makes the ger.ccal allegation that it was error to deny the contentions, without any stateraent of his basis for alleging error.
(Governor Brown's Motion at 7).
In particular, the Governor does not state what special circumstances are presented by the the Licensing Board's rejectian of contentions or sub-jects. The Governor has not, therefore, presented special circumstances, m-<
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___ _ _ _ _ _ _ _ _. related to the rejection of some of his subjects and Joint Intervenors' contentions, which would justify a waiver of the Commission's regulations.
In sum, the Governor has not given any basis for considering the alleged errors in the Licensing Board's PID as any different from any finding which is favorable to one party and adverse to another. Every adverse decision cannot constitute special circumstances if the losing party simply repeats the same arguments presented to the Licensing Board.
Such an interpretation of the waiver provisions of 10 C.F.R. 9 2.758 would result in Comission review of the full adjudicatory record in every case pending in the agency.
As demonstrated above, the arguments of Governor Brown do not support a finding of special circumstances justifying a waiver of the Comission's rules pursuant to 10 C.F.R. 9 2.758. This is true even if, arguendo, one adopts Governor Brown's erroneous position on the purpose of 10 C.F.R. s 2.764. Tne Staff, therefore, urges the Comission to deny Governor Brown's request for waiver of 10 C.F.R. 9 2.764.
B.
Request for Direct Commission Review Governor Brown requests that the Comission directly review his appeal of the Licensing Board's PID on low power operation of the Diablo Canyon Nuclear Facility. The Commission certainly has the authority to do this.
Public Service Company of New Hampshire, et. al., (Seabrook Station, Units 1 and 2) CLI-77-8, 5 NRC 503, 516 (1977).
However, one purpose of the Commission's delegation to the Appeal Boards is to reduce the necessity for Commission review of every voluminous administrative record.
By its delegation to tne Appeal Board, the Comission ensures consistency and
- regularity in its licensing workload while maintaining the ability to review and decide significant legal and policy matters when warranted.
This en, ables the Comission to carry out its principal administrative and i
coordinating functions. M Nevertheless, the Commission has stated that it is "...not a court constrained to the " passive virtues" of judicial action.
which can afford in every instance to wait for the better-framed issue or fully developed argumentation.
[The Commission] has a regulatory respons-ibility which includes avoidance of unnecessary delay or excessive inquiry in our licensing proceedings."
(Seabrack, 5 NRC at 516).
The Governor, however, has identified no reason why such an extraordinary course should be followed here. All that is said is that such a course of action
...would significantly shorten the appellate process and would provide the Commissioners with a timely opportunity to consider and rule oc the critical issues...".
(Governor Brown's motion at p. 2). What is not said, of course, is that such action would enmesh the Commission in a detailed factual review of the record. This review process could potentially significantly delay the issuance of the low power license if the Commis-sion is delayed in issuing its decision under 10 C.F.R. La 2.764 while it reviews the Governor's appeal.
It could also set a precedent for i.
Commission action which would be difficuit to distinguish in numerous Other proceedings pending within the agency. The Governor makes no i
attempt to demonstrate what significant issues of fact, law or public policy are raised by the Licensing Board's decision to justify such an extraordinary course of action.
In fact, as the Governor knows, most of Energy Raorganization Act of 1974: Report of Committee on Government If Operations on 5.2744, Senate Report No. R-93-980, pp. 57-58 (June 27, 1974).
_ _ _ _ _ _ _ _. the significant factual and legal issues raised in this proceeding have been decided by the Appeal Board and the parties have raised them in their petitions and responses before the Connission pursuant to 10 C.F.R. s 2.786. -
The Governor's request for direct Cocnission review of the Licensing Board's low power PID should be denied.
CONCLUSION In view of the fact that Governor Brown has not demonstrated any spec-ial circumstances showing that the purpose of 10 C.F.R. s 2.764 would not be ser.ved by application of the regulation in the present case, the Staff opposes his request to waive the provisions of that regulation and urges the Coranission to deny that request. The Cormaission should likewise deny the Governor's extraordinary request to remove the appeal on the Licensing Board's Plu, presently before the Appeal Board, to the Commission for consideration.
Respectfully submitted.
h' William J./plmstead Deputy Chief Hearing Counsel
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A r.
Bradley W.) (nes Counsel f6r NRC St Dated at Bethesda, Maryland this 2nd day of September,1981.
r UNITED STATES OF AMERICA NUCLEAR REGULATORY COTV11SSION BEFORE THE COMMISSION IntheMaj.erof PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 0.L.
50-323 0.L.
1 (Diablo Canyon Nuclear Power Plant Unit Nos. I and 2)
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CERTIFICATE OF SERVICE 13, 1981 I hereby certify that copies of NRC STAFF RESPONSE TO AUGUST MOTION OF GOVERN 0R BROWN 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 it.ternal mail system, this 2nd day of September, 1981.
- Mr. Thomas S. Moore, Member
- Mr. Samuel J. Chilk Atomic Safety and Licensing Appeal Board Office of the Secretary U.S. Nuclear Regulatory Commission of the Commission U.S. Nuc' ear Regulatory Commission Washington, D.C.
20555 Washingto.1, D.C.
20555 John F. Wolf, Esq., Chairman Administrative Judge
- Leonard Bickwit, Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Comission Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Washington, D.C.
20555 Mr. Glenn 0.. Bright Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. Jerry Kline
- Dr. John H. Buck Atomic Safety and Licensing Appeal Board Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 *
- Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Board Elizabeth Apfelberg 1415 Cozadero U.S. Nuclear Regulatory Comission San Luis Obispo, California 93401 Washington, D.C.
20555
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_ Janice E. Kerr, Esq.
Philip A. Crane, Jr., Esq.
Lawrence Q. Garcia, Esq.
Pacific Gas and Electric Company 350 McAllister Street P.O. Ccx 7442 San Franc;sco, California 94102 San Francipco, CA 94120 E
Mr. James 0. Schuyler Nuclear Projects Engineer Mr. Frederick Eissler Pacific Gas & Electric Company Scenic Shoreline Preservation 77 Beale Street Conference, Inc..
San Francisco, California 94106 4623 More Mesa Drive Santa Barbara, California 93105 Bruce Norton, Esq.
3216 North 3rd Street Mrs. Raye Fleming Suitw 202 1920 Mattie Road Phoenix, Arizona 85102 Shall Beach, California 93449 Richard E. Blankenburg, Co-publisher David S. Fleischaker, Esq.
Suite 709 Wayne A. Soroyan, News Reporter 1735 Eye Street, N.W.
South County Publishing Company Washington, D.C.
20006 P. O.
Box 460 Arroyo Grande, California 93420 Mrs. Sandra A. Silver 1760 Alisal Street
- Ms. Majorie Norc14nger San Luis Obispo, California 93401 Office of Genera' Counsel U.S. Nuclear Regalatory Commission Mr. Richard B. Hubbard Washington, D.C.
20555 MHB Technical Associates 1723 Hamilton Avenue - Suite K Mr. Gordon Silver San Jose, California 95125 1760 Alisal Street San Luis Obispo, California 93401 Mr. John Marrs John R. Phillips, Esq.
Managing Editor San Luis Obispo County Simon Klevansky, Esq.
Telegram-Tribune Margaret Blodgett, Esq.
1321 Johnson Avenue Marion P. Johnston, Esq.
P. O.
Box 112 Center for Law in the Public San Luis Obispo, California 93406 Interest 10203 Santa Monica Boulevard Los Angeles, California 90067 Andrew Baldwin, Esq.
124 Spear Street San Francisco, California 94105 Arthur C. Gehr, Esq.
Snell & Wilmer Mr. Herbert H. Brown 3100 Valley Center Hill, Christopher & Phillips, P.C.
Phoenix, Arizona' 85073 1900 M Street, N.W.
Paul C. Valentine, Esq.
Washington, D.C.
20036 321 Lytton Avenue Palo Alto, California 94302 Byron S. Georgiou Legal Affairs Secretary Governor's Office Harry M. Willis State Capitol Seymour & Willis Sacramento, California 95814 601 California St., Suite 2100 San Francisco, California 94108 i
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' i Mark Gottlieb
- Atomic Safety and Licens ng California Encrgy Commission Board Panel MS-18 U.S. Nuclear Regulatory Comission Washington, D.C.
20555 1111 llowe Avenue Sacramento, California 95825
- Atomic Safety and Licensing Appeal BcCrd Panel U.S. Nuclea'r Regulatory Commission Washington, D.C.
20555
- Docketing and Service Section U.S. Nuclear Regulatory Comission Washington, D.C.
20555 s
Al'l n
Bradley W. Jones Counsel for NRC Staff G
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