ML20030D987
| ML20030D987 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/15/1981 |
| From: | Brown H CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS |
| To: | Bradford P, Gilinsky V, Palladino N NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-OL, NUDOCS 8109170250 | |
| Download: ML20030D987 (5) | |
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2-7005 Nunzio J.
Palladino, Chairman gcI
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Commissioner Victor Gilinsky Commissioner Peter A.
Bradford P '( p 9
Commissioner John F. Ahearne k
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Commissioner Thomas Roberts U.
S. Nuclear Regulatory Commission
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Washington, D.
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Pacific Gas and Electric Company 4
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Units 1 and 2)
Docket Nos. 50-275 OL; 50-323 OL
Dear Mr. Chairman and Members of the Commission:
This is in reply to Mr. Chilk's letter of September 10, 1981, affording the Governor an opportunity to comment on a memorandum of telephone conversations held by Ms. Joan Aron of the NRC's Office of Policy Evaluation and on a FEMA report, both of which concern the emergency planning exercise at Diablo Canyon on l
August 19, 1981.
We hereby advise the Commission that the l
Governor will not comment on the substance of the memorandum or i
the FEMA report.
It is our opinion that any consideration of the memorandum or report by the Commission, or of any comments on the j
nemorandum or report that are directed to the Commissioners by a l
participant in this contested proceeding, would be contrary to l
lawful procedure.
1 Mr. Chilk's September 10 letter highlights what is becoming l
a central issue in this proceeding: whether the Commission is com-plying with the rudiments of due process and procedural fairness ir reaching its immediate effectiveness decision on the low power test license.
The recent actions of the Commission in reviewing the pending low power issues disclose that the Commission is not complying with the legal norn.
Rather, a pattern of highly pre-judicial procedural irregularities has emerged.
This pattern was evidenced first by the series of ex parte meetings held by the I
l Commissioners with Staff members lii August 1981, and was broadened by Ms. ?.ron's memorandum and Mr. Chilk's letter of September 10.
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PDR ADOCK 0500027d G
H ILL, CH RISTOPH E R AN C PH I LLI PS, P. C.
2.
~
We have stated our view previously, by letters dated August 7, August 17, and August 26, that the Commission's ex parte meetings were unlawful and highly prejudicial.
We state Eerein that any consideration by the Commission of Ms. Aron's memorandum or of the FEMA report would be unlawful and highly prejudicial.
This is the case notwithstanding that the Commission has afforded the Governor the opportunity to comment on the ex parte meetings, Ms. Aron's memorandum, and the FEMA report.
While the Commission may believe that its excursions from the norm can be cured by offering the Governor an opportunity to comment, we would disagree.
In our view, the opportunity to comment does not legitimize.the Commission's improper actions; it merely draws attention to them.
Indeed, it suggests that the Commission holds itself above compliance with its own regulations, which require that adjudicatory decisions be based upon the evidentiary record.
See 10 C.F.R. Part 2, Appendix A; 5 U.S.C.. S 556 (e).
The Commission's recent actions not only exceed regulatory authority, they also ensure that unreliable evidence will signifi-cantly influence the Commission's decision.
The evidentiary record in this proceeding was compiled under adversarial procedures that included cross-examination by the parties.
The purpose of such procedures was to produce for the Commission's review a body of reliable and probative evidence.
By reaching beyond the evidentiary record -- to the ex parte statements of the Staff and to the FEMA report -- the Commission will grasp only unreliable statements that lack probative value.
These statements were not tested by the parties or cross-examined.
These statements might be sound, or they might be incomplete, misguided, or self-serving; indeed, they might be flatly wrong.*/
Thus, at the moment when the commission must pass judgment on unprecedented issues of public health and safety, the Commissioners themselves are undermining their ability to make a fair and reasoned decision on the record that rests before them.
And, while the Com-mission should be sensitive to the procedural rights of the parties, the Commission is fashioning an extra-legal forum for ex parte meet-ings with its Staff and an extra-legal record for its a3 judicatory i
review.
-*/
At the hearing level, of course, a party would presumably object to unsupported statements such as those in the FEMA Leport and in Ms. Aron's memorandua as hea_say and unreliable.
It is virtually certain that such statements would not be received into evidence, unless of course all parties were first per-mitted to cross-examine and respond to them on the record in accordance with normal adversarial procedures.
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d H I LL, CH RISTO PH E R AN D PH I LLI PS, P. C.
3.
With the foregoing in mind, we believe that the best course now is to ensure that a clear record is made for any future judi-cial review.
This will' facilitate the task of the reviewing court and, indeed, will sharply focus the issues.
Accordingly, the fol-lowing discussion addresses the FEMA report and Ms. Aron's memo-randum relating thereto.
In the succeeding section, the Governor asks that tne Commission respond or rule, or both, to the Governor's specific requeste for Commission action.
For the purpose of en-suring that a clear and orderly record will exist for judicial review, we ask that the Commission issue its responses or rulings prior to or at the time of its immediate effectivenese decision.
I.
The FEMA Report and Ms. Aron's Memorandum The FEMA report on the August 19 exercise and the memorandum that characterizes that exercise are irrelevant to the low power test proceeding.
These materials should not be considered by the Commission in its immediate effectiveness review.
The exercise which is summarized in the report and the memorandum was a test of a new draft County Emergency Plan which is still in the development process.
This draft Plan was not the " plan" presented by PG&E or any other party as allegedly providing preparedness for low power operation and was not even introduced into evidence at the low power hearing.
The new draft plan and August 19 exercise are thus not a part of the record before the Commission.
Indeed, the evidentiary record on low power testing was closed by the Licensing Board on,/
May 22, 1981, nearly three months before the August 19 exercise._
Thus, the Commission should neither consider these extra-record materials nor ask others to comment on them.
We would submit that f
the appropriate course for the Commission now is to withdraw Mr.
Chilk's letter of September 10, and to state that the Commission will disregard the FEMA report and Ms. Aron's memorandum.
Any other action by the Commission that takes cognizance of these extra-record materials would be substantially prejudicial to the Governor and at odds with applicable standards of administrative regularity.
l Diablo Canyon is a contested proceeding.
The Commission's immediate effectiveness decision, therefore, must be based on the evidentiary record, and the Commission's review must comply with the requirements of due process, administrative fairness, and the NRC's own regula.tions.
If the Commission wishes to make the FEMA report and Ms. Aron's memorandum a part of the evidentiary record and, choreafter, a basis for its immediate effectiveness decision, the Commission can avail itself of the procedures set forth in NRC regula-tions for introducing information into evidence after the record is i
i
-*/
Low Power Hearing Transcript, pp. 11,339-43.
l 6
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HILL, CH RISTOPH ER AN o PH ILLI PS, P. C.
4.
closed.
Thus, the Commission could find at the subject FEMA report and Ms. Aron's memorandum are sie _ficant new information, and then: (1) reopen the record sua sponte; (2) provide the Governor and other parties the opportunity to cross-examine the sponsors of the FEMA report, Ms. Aron, and those with whom she conversed; and (3) provide the Governor and other parties the opportunity to introduce evidence of their own on the matters discussed in the FEMA report and by Ms. Aron.
Unless the Commission takes these actions, the FEMA report and Ms. Aron's memorandum must be disregarded.
If the Commission were to rely on Ms. Aron's memorandum and the FEMA report in reaching its immediate effectiveness decision, such action would substantially and seriously prejudice the rights of the Governor and the State he represents.
Indeed, we presume the Com-missioners by now know from their review of the record of the Licansing Board's decision ar3d the related pleadings that there is no County emergency preparedness for low power testing.
In fact, there is no County preparedness whatsoever, because the only County emergency plans that ever existed were discarded by the County after the TMI accident.
Those plans, which were drafted in 1976, were never implemented, were " shelved" long before the low power test hearing, and remain inoperative to this day.
Because the Licensing Board failed to take cognizance of these conclusive facts, the Com-mission may not lawfully authorize low power testing.
I i
i The Governor submits, as he has repeatedly done before, that l
the only decision properly available to the Commission is to deny l
the low power license and to hold this proceeding in abeyance until j
the emergency plan that the County is now preparing is complete.
At that time, the plan should be set for hearing with the other issues that the Licensing Board erroneously decided, including post-TMI safety-related contentions that the Board erroneou.ely r6jected.
If the Commission were to authorize low power operation now, we are of the opinion that its decision could not be sustained on the evi-dence of record.
If the Coramission were to do so after having con-sidered the extra-record FEMA. report and Ms. Aron's memorandum, we submit that the decision would be indefensible.
l II.
Requests of the Governor for Responses or Rulings of the Commisnicn In order to establish a clear record'for any jedicial review l
that may be sought in this proceeding, the Governor asks that the Ccmmission respond to each of the following requests.
HI LL, CH RISTOPH E R AN D PH I LLI PS. 2. C.
5.
1.
The Governor requests that the Commission not consider in its immediate effectiveness review or for any other purpose Ms. Aron's memorandum and the FEMA report transmitted therewith, both of which were attached to Mr. Chilk's letter of September 10.
In the event that the Commission nevertheless decides to consider such materials, the Governor requests that the Commission: (a) re-open the reccrd in the Diablo Canyon proceeding; (b) establish a forum in which the parties may cross-examine the persons who are determined to be proper sponsors of such matericis and in which additional direct testimony may be offered; and (c) establish procedures through which pleadings may be filed with the Commission concerning such cross-examination and direct testimony.
2.
The Governor requests that the Commission cease and desist from any further ex parte meetings with the Staff on issues covered by Contentions or Subjects tha*c were rejected by the Licensing Board and which are pending on appeal, 3.
The Governor requests that the Commission, sua sponte,, im-mediately direct the Appeal Board to certify to the Commission for expedited review the Contentions and Subjects which were rejected by the Licensing Board and discussed by the Commission at the ex~
parte meetings with the Staff, including the Governor's Subject 4 relating to shift manning requirements and the Governor's Subject 13 relating to the adequacy of PG&E's equipment for determining in-adequate core cooling.
The Governor requests that the Commission afford the parties the opportunity to engage in discovery, including depositions if necessary, of Staff personnel who met with the Com-missioners at the ex parte meetings.
The Governor further requests that the Commission permit the parties to file pleadings with the Commission based on such discovery.
Finally, the Governor requests that the Commission hold its immediate effectiveness review in abeyance until such time as the discovery requested above is complete and the related pleadings are submitted.
Sincerely, Byron S. Georgiou Legal Affair,s Secretary Governor's Office State Capitol Sacramento, California 95814 7b
, W~--[*. m/
/.~, 9 Kerbert H.
Brown Lawrence Coe Lanpher l
HILL, CHRISTOPHER AND PHILLIPS, P. C.
1900 M Screet, N. W.
Washington, D.
C.
20036 1
l Attorneys for Governor Brown of the State of California cc:
Service List Leonard Bickwit, Esq.
,