ML20010F395
| ML20010F395 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/31/1981 |
| From: | Laupheimer F PACIFIC GAS & ELECTRIC CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8109100133 | |
| Download: ML20010F395 (8) | |
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1 UNITED STATES OF AMERICA
(
Offgt of the Sectt'.r! T Docks'Jeg & State 0'h
/
2 NUCLEAR REGULATORY COMMISSION f
4 3
BEFORE THE COMMISSIOh' B(SIlBI 4
5 In the Matter of
)
)
6 PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275
)
50-323 7
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
(Low Power Mo '
)
h 1
/
091937, d PACIFIC GAS AND ELECTRIC COMPANY'S 7 D
11 OPPOSITION TO JOINT INTERVENORS' t.a.g 7g REQUEST FO.~. WAIVER OF THE 12 IMMEDIATE EFFECTIVENESS RULE AND ITS MOTION TO STRIKE AN UNAUTHORIZED PLEADIh-d to 13 14 The Joint Intervenors' so-called " Request For 15 Waiver of the Immediate Effectiveness Rule" is, like 16 Governor Brown's similar motion, a transparent attempt to:
17 (1) stay the effectiveness of the July 17, 1981 Atomic 18 Safety and Licensing Board's
(" Licensing Board") decision 19 authorizing fuel loading and low power tests at Diablo 20 Canyon Nuclear Power Plant
("Diablo Canyon")
without 21 complying with the proper procedures and criteria, and (2) 22 comment on this Commission's sua sponte review under 10 23 C.F.R. S 2.764 where such comments are expressly prohibited.
24 For all the reasons set forth in Pacific Gas and 25 Electric Company's ("PGandE") opposition to Governor Brown's 26 motion, the Joint Intervenors' motion is improper and h
8109100133 810831 DR ADOCK 05000 gp g
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1 impermissible and must be stricken.1/
The Joint Inter-2 venors's papers, however, require a few additional comments.
3 Joint Intervenors' "special circumstances" argument as justification for a " waiver" under 10 C.F.R. 4 5
5 2.758 (b) is particularly strained.2_/
They concede, as 6
they must, that the Commission's purpose in amending section 7
2.764 was to expedite the licensing process.
They then go 8
9
-1/
PGandE will not respond here to the various unsupported assertions and suppositions Joint Intervenors make in their motion and supporting affidavit since this is 10 neither the time nor the place to litigate a stay request.
(For example, among the many defects in their 11 stay request, Joint Intervenors tailed to file it first with the Atomic Safety and Licensing Appeal Board 12
(" Appeal Board"), as required by 10 C.F.R.
S 2.788 (h). )
We
- note, however, that the Hubbard-Bridenbaugh 13 affidavit attempts to make two points: (1) delay will not hurt PGandE, and (2) plant modifications will be 14 more difficult and expensive if performed after low-power tests are conducted than if performed prior 15 to such tests; PGandE strongly disputes both points.
Further, as to the second, even if true it is difficult 16 to see how Joint In.tervenors will be harmed by any additional trouble and expense incurred by PGandE.
17 This is particularly true where that added expense will result in no concomitant increase in safety since 18 insofar as a stay is concerned, the only question is 19
~
whether modifications will be made before or after criticality, not whether they will be done at all.
20 If, however, this Commission chooses to consider the Joint Intervenors' stay request, PGandE requests an 21 opportunity to rebut their assertions.
In such event, this Commission should nevertheless not delay its 22 section 2.764 review.
23 2_/
The Hubbard-F"?denbaugh affidavit does not satisfy the requirement-c.
rection 2.758 (b) either, since it does 24 not idend P wy ;,pecific aspects of the Diablo Canyon
,c which application of the Commission's proceeQ n ;
e 25 2.764 ruview fcceedure would not serve its intended purpose of expeelting the review process.
See note 1 26
- supra,
,i....
1 astray, asserting that this purpose is " qualified by the 2
Commission's statement of intent that the amendment 'does 3
not compromise the Commission's commitment to the protection 4
of public health and safety or to a fair hearing process.'"
5 Joint Intervenors' Request at 2.
They then conclude that 6
because of all of the errors they claim the Licensing and 7
Appeal Boards made, permitting the low power decision to 8
become effective without review will compromise safety and 9
therefore frustrate the rule's purpose.
This argument is 10 fallacious.
11 The Commission's sua sponte review under section 12 2.764 is e addition to all other preexisting procedural 13 safeguards.
This Commission's conclusion i.ha t this change 14 to section 2.764 would "not compromise the Commission's 15 commitment to the protection of public health and safe'.:y or 16 to a fair hearing process" (46 Fed. Reg. 28627, 28628) is l
17 therefore not a qualification of the rule's purpose or a 18 statement of its intent.
Rather, it is a finding upon which 19 the rule is based.
20 As this Commission said in adopting this change to 21 section 2.764:
22 When warranted, stays of effectiveness l
remain available pursuant to the 23 standard procedure and criteria o,f 10 CFR 2.788.
The Commission review i
04 provided for in this amendment will focus narrowly on significant policy 25 issues.
The Commission does not intend to review the entire record developed 26 during the licensing proceeding.
[46 Fed. Reg. at 28628.]
we 1
Thus, the Commission's review under section 2.764 would 2
serve an entirely different function from review of stay 3
requests under section 2.788.
Under 10 C.F.R. 5 2.764, this 4
Commission will review only those policy issues it deems 5
significant, whether or not contested below.
6 This interpretation seems to be consistent with 7
that given by the Appeal Board in ALAB-647 (Duke Power 8
Company (William B. McGuire Nuclear Station, Units 1 and 2),
9 ALAB-647, NRC (July 1, 1981)), where the Board 10 concluded that the fketors governing a stay under section 11 2.788 "do not coincide with the considerations which the 12 Commission is to take into account in making its Section 13 2.764 determination."
Id.,
slip op. at 5 n.6.
14 If Joint Intervenors' litany of alleged errors in 15 the decisions and ' reviews below can justify abandoning 16 section 2.764 in this case, Joint Intervenors will have, in 17 effect, obtained a section 2.788 stay of effectiveness 18 without complying with its requirements.
Moreover, if 19 successful here, mere allegations of error in licensing 20 decisions in every case will require the same result, i
l 21 rendering the stay provisions of section 2.788 unnecessary 1
22 in all cases.
In short, Joint Intervenors simply do not 23 like the Licensing and Appeal Board decisions.
This is 24 insufficient reason for abandoning section 2.764 and 25 destroying section 2.788.
~
26 fff l
1,
1 It follows, therefore, that Joint Intervenors' 2
right to review is not prejudiced by rejection of their 3
motion.
Indeed, review of most of the major issues in this 4
case (including the first two stressed by Joint Intervenors, 5
seismic safety and physical security) will have already 6
occurred by the time this Commission's sua sponte 2.764 7
review takes place.
Pacific Gas and Electric Company 8
(Diablo Canyon Nuclear Power Plant), ALAB-644, NRC 9
(June 16, 1981) (seismic and environmental issues).3_/
10 In effect, Joint Intervenors assert that they have 11 a "right" to a second appellate opinion, and that. the 12 effectiveness of a low-power decision should be delayed 13 while this takes place.
Small wonder that Joint Intervenors 14 seek a way around the stay criteria of section 2.788(e) 15 with Appeal Board review of seismic and security issues (as 16 well as others) having already taken place, they have little 17 hope of making "a strong showing that [they are] likely to 18 prevail on the merits."
10 C.F.R. S 2.788(e).4/
19 20
-3/
This Commission's 2.764 review is conditioned upon a favorable decision on the physical security issue by l
l the Appeal Board.
Pacific Gas and Electric Company 21 (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
NRC
, Order (July 22, 1981)., This decision is 22 expected imminently, and since PGandE (as well as Joint Intervenors) expect this decision to be favorable, this 23 memorandum assumes it has already been issued.
24 4/
Joint Intervenors seem to argue that because Diablo Canyon is a controversial case, the low-power license 25 should be further delayed.
In fact, PGandE submits that in part because of this controversy, Diablo Canyon 26 has already been reviewed to an unprecedented degree, and no further delay is warranted.
O s
1 Joint Intervenors' assertion, therefore, that 2
there will be no meaningful review of any significant issues 3
before the low-power decision is allowed to become effective 4
ignores the present state of the record and reflects little 5
conficence in the procedural safeguards that this Commission 6
has prescribed regarding its sua sponte 2.764 review.
7 Joint Intervenors'
" waiver" request should be 8
stricken.
9 Respectfully submitted, 10 MALCOLM H. FURBUSH PHILIP A. CRANE, JR.
11 DOUGLAS A. OGLESBY F.
RONALD LAUPHEIMER 12 Pacific Gas and Electric Company P. O. Box 7442 13 San Francisco, California 94120 (415) 781-4211 14 APTHUR C. GEHR 15 Snell & Wilmer 3100 Valley Bank Center 16 Phoenix, Arizona 85073 (602) 257-7211 17 BRUCE NORTON 18 Norton, Burke, Berry & Junck 3216 North Third Street 19 Suite 300 Phoenix, Arizona 85012 20 (602) 264-0033 21 Attorneys for Pacific Gas and Electric Company 22 23 24 By 25 F.
RONALD LAUPHEIKER 26 Dated:
August 31, 1981 4
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/
UNITED STATES OF AMERICA
i
" NUCLEAR REGULATORY COMMISSION 0;
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n 31981 > -i n#
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In the Matter of
)
t-b.G'J'"* //
)
/jj PACIFIC GAS AND ELECTRIC COMPANY )
Docket No. 50-275
)
Docket No. 50-323 Units 1 and 2
)
)
Diablo Canyon Power Plant
)
)
CERTIFICATE OF SERVICE The foregoing document of Pacific Gas and Electric Company has 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 Raynolds, Esq.
Center for Law in the Public Interest Judge Jerry R.
Kline 10203 Santa Monica Drive Atomic Safety and Licensing Board Los Angeles, California 90067 U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 David F. Fleischaker, Esq.
1735 Eye Street, N.W.
Mrs. Elizabeth Apfelberg Suite 709 c/o Nancy Culver Washington, D.C.
20006 192 Lunsta Drive 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 Mrs. Raye Fleming Phoenix, Arizona 85012 1920 Mattie Road Shell Beach, California 93449 Chairman Atomic Safety and Licensing Mr. Frederick Eissler Board Panel Scenic Shoreline Preservation U.
S. Nuclear Regulatory Commission
. Conference, Inc.
Washington, D.C.
2055.5 4623 More Mesa Drive Santa Barbara, California 93105 i
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 Satety 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 Swartz, 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, Commissinne*
1723 Hamilton Avenue, Suite K U. S. Nuclear Rege.latory Commission San' Jose, California 95125 1717 H Street, 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 Obispo, California 93402 1717 H Street, N.W.
Washington, D.C.
20555 Herbert 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 Byron S. Georgiou, Esq.
Deputy Legal Affairs Secretary Governor's Office State Capitol i
Sacramento, California 95814
~
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l F.
Ronald Lauphdimer i.
Attorney for Pacific Gas and Electric Company 1
Dated:
1 1