ML20028D161
| ML20028D161 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/30/1982 |
| From: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Harold Denton Office of Nuclear Reactor Regulation |
| References | |
| CLI-82-39, NUDOCS 8301170184 | |
| Download: ML20028D161 (2) | |
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December 30, 1982 Note to:
Harold R. Denton, Director Office of Nuclear Reactor Regulation Richard DeYoung, Director Office of Inspection and Enforcement From:
Guy H. Cunningham, III Executive Legal Director
SUBJECT:
DIABLO CANYON -- COMMISSION DECISION ON QUESTIONS CERTIFIED BY APPEAL BOARD AND ON JOINT INTERVEN0RS' REQUEST FOR HEARING ON LOW-POWER LICENSE EXTENSION On December 23, 1982, the Commission issued a Memorandum and Order, CLI-82-39, copy attached, resolving the three issues certified to it by the Appeal Board on July 16, 1982, ALAB-681 (see my note dated July 23, 1982). The Appeal Board's certification was prompted by Joint Intervenors' motion to reopen the record underlying the Licensing Board's partial initial decision authorizing issuance of a low-power operating license on the basis of allegedly significant new information resulting from the Independent Design Verification Program (IDVP). A similar motion to reopen the full-power record was filed by the Governor before the Licensing Board. The Applicant and Staff had opposed these motions, the Staff arguing that the matters presented by the intervenors were the subject of the ongoing IDVP and, accordingly, that the motions should be denied without prejudice to refiling upon completion of that program.
The Applicant argued that the Comission's Order suspending the low-nower license had divested the lower boards of jurisdiction to reopen the record.
Both the Appeal Board and the Licensing Board (in its Initial Decision authorizing issuance of a full-power license issued on August 31,1982) determined to hold in abeyance the respective motions to r,eopen pending Commission resolution of the certified questions.
The Comission, in CLI-82-39, concluded that it did not intend the issuance of its Order suspending the low-power license and the establish-ment of the IDVP to divest the lower boards of jurisdiction nor does it wish to do so now.
It further determined that these motions should be resolved according to accepted Comission criteria as reflected in the y
Rules of Practice, 10 C.F.R. Part 2, and in case-law and that where a ocm.
" motion to reopen relates to a previously uncontested issue, the moving 38 party must satisfy both the standards for admitting late-filed g@
contentions, 10 C.F.R. 2.714(a), and the criteria established by case-law o
for reopening the record."
(Slip op. at 4). The Commission noted "that b
reopening the record does not necessarily require that fuel loading and 58 low-power testing be stayed" and that at this time, in light of the so 7
DEM GNATED OR* nI, hc, c ut m ea sy [ b fdp ff f OGo"
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suspension of the low-power license, there is nothing to stay (Id_. and n.6 at 5).
The Comission also ruled on Joint Intervenors' August 17, 1982, request for a hearing regarding the P.pplicant's requested extension of the low-power license.
In denying the request, the Comission concluded that (1) the lower-power license remains in effect on the basis of a timely request for renewal and (2) a request for a low-power license does not give rise to a proceeding separate and apart from the ongoing full-power license, that the request for a hearing is subsumed within the full-power proceeding and accordingly, that there is no section 189a (Atomic Energy Act) right to a hearing, and no need for any "significant hazards consideration" determinatian. The Comission also concluded that the request for a hearing would be treated as a motion to reopen the low-power record which, in light of the already-filed motion to reopen, is merely duplicative. As a consequence, extension of the operating license should await authorizatien by the appropriate board.
On the basis of the Comission's decision, the motions to reopen must now be resolved by the Licensing and Appeal Boards. As noted above, initial responses to the motions have already been filed.
Comissioner Gilinsky filed separate views opposing treatment of the low-power and full-power proceedings separately.
Guy H. Cunningham, III Executive Legal Director cc:
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.e-M,]';ET.ED UNITED STATES OF AMERICA NUCLEAR. REGULATORY COMMISSION
.g pg 23 21:31 COMMISSIONERS:
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Nunzio J. Palladino, Chairman
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Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine
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In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 0.L.
50-323 0.L.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2)
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MEMORANDUM AND ORDER (CL1 39)
A.
Background
On July 17, 1981, the Atomic Safety and Licensing Board (Licensing Board) issued a partial initial decision in the Diablo Canyon operating liter.5e proceeding that approved the request of Pacific Gas and Electric Company (PG&E) for a license to load fuel and conduct low-power testing.I-Fol'10 wing the effectiveness review conducted
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Pacific Gas and Electric Comoany (Diablo :Canyor, Nuclear Plant, Units 1 ano 2), LBP-81-21, 14 NRC 107 (1981). This decision relied on several earlier adjudicatory decisions and was conditioned upon one subsequent decision.
LBP-78-19, 7 NRC 989 (1981); LBP-79-26, 10 NRC 453 (1979); ALAB-644, 13 NRC 903 (1981) (Seismic); and ALAB-653,14 NRC 629 (1981) (Physical Security).
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pursuant to 10 CFR 2.764(f), the Comission authorized the issuance of such a. license for Diablo Canyon Nuclear Power Plant, Unit 1.2/ The NRC staff issued the license'on September 22, 1981.
Soon thereafter, PG&E informed the NRC of the discovery of an crror in the seismic design of ecuipment and piping in the containment annulus of Diablo Canyon Unit 1.
Further inquiry by PG&E and the NRC staff discicsed additional errors in the plant.
On November 19, 1981, the Comission suspended PG&E's license to load fuel and conduct low-power testing pending the satisfactory completion of an independent design verification program (IDVP).1/ The IDVP remains in progress at this date.
OnJune8,1982,the"JointIntervenors"SI in the operating license proceeding filed a motion requesting the Atomic Safety and Licensing Appeal Board (Appeal Board) to vacate the Licensing Board's July 17, 1981 findings on its sua sponte review of the Diablo Canyon quality assurance program, revoke the low-power license, and reopen the record for hearing and the submission of relevant new evidence..The Joint Intervenors focused their request on evidence regarding breakdowns in 2_/
Pacific Gas and' Electric Company (Diablo Canyon Nuclear Power -
l Plant, Units 1 and 2), CL1-81-22,14 NRC 598 (1981).
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Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power P1 ant, Unit 1), CL1-81-30, 14 NRC 950 (1981).
EI Collectively labeled, the joint intervenors are the San Luis Obispo Mothers for Peace, Scenic Shoreline Preservation Conference, Inc.,
Ecology Action Club, Sandra Silver, Gordon Silver, Elizabeth Apfelberg and John J. Forster.
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the Diablo Cany6ii Quality Assurahce a'nti Quali.ty Control (QA/QC) program.
e On July 16, 1982, the Appeal Board certified to the Comission three questions regarding Joint Iretervenors' motion.
Subsequent to the certification, Governor Edmund G. Brown, Jr.,
filed a motion to reopen the full-power proceeding with the Licensing Board.
Governor Brown's motion focused on essentially the same subject as Joint Intervenors' motion to reopen the low-power proceeding.
In the August 31, 1982 initial decision concluding its review of PG&E's full-power operating license application, the Licensing Board declared' that the motion to reopen the full-power proceeding was misdirected, stating that QA/QC issues had been decided in full in the Licensing Board's July 17, 1981 partial initial decision in the low-power proceeding.5_/ The Licensing Board noted that it no longer had jurisdiction of that record but held Governor Brown's motion under advisement pending the Commission response to these certified questions.
The Commission intends this response to the certified questions to apply equally to the motion to reopen the full-power proceeding.
B.
Certified Ouestions The Appeal Board's ertified questions focus on the jurisdictional
,. issue presented by the relationship between the IDVP and the operatirig license proceeding.
The questions and the Comission responses are set forth below.
1.
Did the Comission intend its November 19, 1981 order
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Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Pcwer Plant, Units 1 and 2), LSP-82-70, 16 NRC
, Slip op. at 8 (August 31,1982).
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s suspending the low-power license for Diablo Canyon, Unit 1,
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and establishing an independent verification program to deprive the appropriate adjudicatory boards of jurisdiction to consider a motion to reopen the record based on the QA/QC questions regarding Diablo Canyon?
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If not, does the Commission now wish to relieve the adjudicatory boards of jurisdiction with regard to the QA/QC issues at Diablo Canyon?
The Commission did not intend the issuance of the suspension order and establishment of the IDVP to deprive the adjudicatory boards of jurisdiction to consider and act on the motions to reopen and does not wish to do so now.
Thus, these questions are answered in the negative.
3.
If the Conmission h~as not divested, and does not intend to divest, the adjudicatory boards of jurisdiction over the QA/QC s
issues at Diablo Canyon what, if any, instructions does the Conmission have with regard to timing or other matters raised by the motion to reopen?
The Commission believes the motions to reopen should be addressed according to the criteria'for resolving such matters established in its case-law and rules of practice, 10 CFR Part 2.
Where a motion to reopen
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relates to a previously uncontested issue, the moving party must satisfy' l
both the standards for admitting late-filed contentions,10 CFR 2.714(a), and the criteria established by case-law for reopening the record.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power l
Plant, Units 1 and 2), CLI-81-5, 13 NRC 361 (1981).
Furthermore, the Commission notes that reopening the record does not necessarily r.equire that fuel loading and low-power testing be stayed.
The Appeal Board e
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shall respond sel arately to stay feque'sts in accord with the applicable i
criteria.5I C.
Recuest For Hearina on Low-Power License Extension Also pending before the Comission at this time is Joint Intervenors' August 17, 1982 request for a hearing pursuant to section 189a of the Atomic Energy Act on PG&E's application for an amendment extending the suspended low-power license.
PG&E's low-power license, due to expire September 22, 1982, one year from the date of issuance, remains in effect following PG&E's timely request for renewal pending a' Comission decision on the application for an extension.1/
As the Comission has previously held, a request for a low-power license does not give rise to a proceeding separate and apart from a pending full-power operating license proceeding.8_/It follows that this hearing request is subsumed within the scope of the continuing full-power proceeding, as was the request for a low-power license.
Further operation at low-power is within the scope of PG&E's application 5/
In this regard, currently there is nothing to stay.
As a separate matter, several step's must occur independent of the requests addressed here before fuel loading, low-power testing and l
full-power operation may be authorized.
Before fuel loading and low-power testing, the Commission must decide whether to lift the s
suspension and reinstate the fuel loading and low-power license--concluding the Comission enforcement' action taken on November 19, 1981 (license suspension, see note 3 infra).
In addition, the Comission must complete its immediate effectiveness i
review before full power can be authorized.
The Ccmmission does not plan to conduct any additional low-power effectiveness review.
However, it still has a Licensing Board decision on full-power issues to review and will discuss uncontested issues with the staff.
before a full-power license may be issued.
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See, 5 U.S.C. 558; 10 CFR 2.109.
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Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-81-5, 13 NRC 361, 362 (1981).
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for a full term full-power license and is controlled by the record developed to date in the operating license proceeding.
Thus, there is no sect' ion 189a right to a separate hearing here and no need for any "significant hazards consideration" finding of the type that would be called for were this a separate proceeding on an application for a license amendment.
For the same reason, Sholly v. U.S. Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir.1980) (per curiam), cert.
granted, 451 U.S. 1016 (1981), does not require a hearing in this instance.
This request for a hearing would ordinarily be treated as a motion to reopen the low-power record.
In this instance, Joint Intervenors have already filed a motion to reopen the low-power record with the Appeal Board.
Accordingly, the request for a hearing on the extension of the low-power license is duplicative and is hereby denied.
The separate views of Commissioner Gilinsky are attached.
It is so ORDERED.
Fo the Commission, L/
f Sa~muel J. Chily'-
Secretary of the Commission t
Dated at Washington, D.C.
this $LF-Cday of December, 1982.
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SEPARATE VIEWS OF COMMISSIONER GILINSKY s
DIABLO CANYON CERTIFICATION I am astonished and disappointed that this Commission, which has so frequently and vociferously announced its desire to simplify the hearing process, should reject the suggestion that the Diablo Canyon low-powei and the full-power hearings be merged into a single hearing.
As far as I can tell, the only plausible rationale for keeping two hearings going is the remote possibility that this would permit PG&E to begin low power testing (though not commercial operation) a few weeks earlier than would otherwise be possible.
This hardly justifies the confusion and procedural complexity caused by two simultaneous hearings on the same operating license.
The Commission should consolidate the two hearings.
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