ML20031F286
| ML20031F286 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/14/1981 |
| From: | Oglesby D PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8110190483 | |
| Download: ML20031F286 (7) | |
Text
00CKETE0 4
USNRC j
1 UNITED STATES OF A:iERICA I MT15 Pidf NUCLEAR REGULATORY COMMISSION 2
BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEALcpOARD.
E0' NTTIkG hfjk 3
C BRANCH 4
In the Matter of
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5
)
PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 6
)
50-323 (Diablo Canyon Nuclear Power
)
7 Plant, Units 1 and 2)
W 7
a[ED s 9
OPPOSITION OF LICENSEE PACIFIC E 00T161981w gi 10 GAS AND ELECTRIC COMPANY TO w.s. - - m
'N MOTION OF GOVERNOR EDMUND G.
mssa g
11 BROWN JR. TO STRIKE PORTION OF PGandE'S OPPOSITION TO STAY MOTION 13 Governor Brown's motion to limit the permissible 14 scope of this Appeal Board's consideration of matters 2
15 relevant to a determination (and rejection) of the stay 16 motion pending before this Board is, stated simply, 17 meritless.
'There is absolutely no question that this Board 18 may refer to matters outside the adjudicative record 19 supporLing the Atomic Safety and Licensing Board's ("ASLB")
20 decision authorizing issuance of a low power license to 21 Pacific Gas and Electri'c Company ("PGandE") in considering 22 whether to grant or deny a motion to stay the effectiveness 23 of the ASLB's low power decision.
24 The Governor apparently recognizes that the FEMA 25 report PGandE appended to its Opposition To Joint 26 Intervenors' Application For A Stay (Exhibit B) weighs b
9 son
- 110190483 811014 DR ADOCK 05000275
.)
s 1
heavily against his argument that he will suffer irreparable 2
injury because of alleged inadequate emergency preparedness 3
for low power testing.
Motion of Governor Edmund G.
Brown 4
Jr. For Stay Of The Effectiveness Of The Diablo Canyon Fuel 5
Loading And Low Power Operating License at 6-7 (Sept. 11, 6
1981).
The ract, however, that the Governor does not like 7
this evidence does not provide a basis for striking it.
8 According to the Commission's own regulations, it is legally 9
proper for this Board to consider the FEMA report in 10 evaluating at least three of the four stay criteria set 11 forth in 10 C.F.R.
S 2.788(e).
Common sense dictates the 12 same result.
13 10 C.F.R.
S 2.788 sets forth the procedure to be 14 followed in applying for and resisting applications to stay 15 licensing decisions.
This procedure permits evidence 16 outside the adjudicative record to be considered by this 17 Board in determining whether to grant or deny a stay 18 application.
For example, section 2.788 provides in part as 19 follows:
20 An application for a stay shall be no longer than ten (10) pages, exclusive of 21 affidavits, and shall contain.the ~~
following:
23 (4) To the extent that an application 24 for a stay relies on facts subject to dispute, appropriate references to the 25 record or affidavits by knowledgeable persons.- Tlo C.F.R.
S 2.788(b)(4);
26 emphasis added.]
I s
I 1
The Governor himself has utilized this procedure by basing 2
his stay motion in part on an affidavit raising matters 3
outside the low power record.
See PGandE's Opposition To 4
Motion Of Governor Edward G.
Brown Jr. For Stay Of The 5
Effectiveness Of The Diablo Canyon Fuel Loading And Lcw 6
Power Operating License at 4-7 (Sept. 17, 1981).
7
- Further, the criteria governing stay motions 8
require this Board to consider issues not necessarily 9
directly relevant to a licensing board's licensing decision.
10 The four criteria are:
11 (1)
Whether the moving party has made a strong showing that it is likely to 12 prevail on the merits; (2)
Whether the party will be irrepar-13 ably injured unless a stay is granted; (3)
Whether the granting of a stay 14 would harm other parties; and (4)
Where the public interest lies.
15 (10 C.F.R. S 2.788 (e). ]
16 The resolution of all but the first factor may well require 17 reference to outside evidence since there may be nothing in 18 the low power record enabling this Board to make the 19 required determination.
20
'"he re is no question that the FEMA report is 21 proper and admissible evidence.
10 C.F.R.
.43(c), (h) 22
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23
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24
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25 26 6
1 and (i); Fed.
R.
Evid. 402 and 803(8). 1/
The report is 2
relevant to at least three of the four stay factors (section 3
- 2. 788 (e) (2-4) ),
particularly in demonstrating that 4
permitting the low power license to remain effective will 5
not cause irreparable injury to the Governor nor harm to 6
other persons.
7 Additionally, it makes no sense for this Board to 8
be prevented from evaluating all pertanent and relevant 9
information when it decides the stay motions.
Although 10 Governor Brown continually argues that the emergency 11 response planning for Diablo Canyon is insufficient, when a 12 report is issued that contradicts that assertion his 13
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14
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15
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16 17 18 1/
The Governor's citations (motion at 2) underscore.the
~
speciousness of his motion.
He cites 10 C.F.R. Part 2, 19 App. A, S (v) (e) (2), which by its terms applies only to the conduct of licensing proceedings by licensing 20 boards.
The " decision". referred to is obviously (except perhaps to the Governor) a licensing decision, 21 and not action on a stay motion by an-appeal board, which is governed instead by 10 C.F.R.
S 2.788.
22 Similarly, the two cited cases do not discuss'the matters which may be considered on applications for
'23 provisional
- relief, but simply. state that an administrative agency should not stray beyond the 24 record in making a decision on the merits of a license application.
That is not the situation here.
Compare 25 5
U.S.C.
S 556 (e) with 10 C.F.R.
S 2.788 and Fed.
R. App.
P.
18.
See Superior Trucking Co., Inc. v.
26 United States, 614 F.2d. 481, 485 (5th Cir. 1980).
1 approach is to attempt to suppress it.
Such a tactic cannot 2
be permitted.
3 The Governor's motion must be rejected.
4 Respectfully submitted, 5
MALCOLM H. FURBUSH PHILIP A. CRANE, JR.
6 DOUGLAS A. OGLESBY F.
RONALD LAUPHEIMER 7
Pacific Gas and Electric Company P. O. Box 7442 8
San Francisco, California 94120 (415) 781-4211 9
ARTHUR C. GEHR 10 Snell & Wilmer 3100 Valley Bank Center 11 Phoenix, Arizona 85073 (602) 257-7211 12 BRUCE NORTON 13 Norton, Burke, Berry &
- French, P.C.
14 3216 North Third Street Suite 300 15 Phoenix, Arizona 85012 (602) 264-0033 16 Attorneys for
~'
17 Pacific Gas and Electric Company 18 19
/
tl /
e By ab
. (( Lu 3'l DOUgLASA. OGLESB,Y' 20 21 Dated:
October 14, 1981 22 23 24 25 26 J
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos. 50-275
)
50-323 (Diablo Canyon Power Plant,
)
Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the " OPPOSITION OF LICENSEE PACIFIC GAS AND ELECTRIC COMPANY TO MOTION OF GOVERNOR EDMUND-G.
BROWN JR, TO STRIKE PORTION OF PGandE'S OPPOSITION TO STAY MOTION" have been served to the following on October 14, 1981, by U.S. mail, first class, except as otherwise noted.
Thomas S. Moore Esq.
(*)
Judge John F. Wolf Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U. S. Nuclear Regulatory Commission U.
S.
Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Judge Glenn O.
Bright Dr. W. Reed Johnson (*)
Atomic Safety and Licensing Board Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Appeal Board Washington, D.C.
20555 U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Judge Jerry R.
Kline Atomic Safety and Licensing Board Dr. John H.
Buck (*)
U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U. S. Nuclear Regulatory Commission Mrs. Elizabeth Apfelberg i
Washington, D.C.
20555 c/o Nancy Culver 192 Luneta Drive Chairman San Luis Obispo, California 93401 Atomic Safety and Licensing Appeal Panel Janice E.
Kerr, Esq.-
[
U. S.
Nuclear Regulatory Commission Public Utilities Commission Washington, D.C.
20555 of the State of California 5246 State Building 350 McAllister Street Chairman San Francisco, California 94102 Atomic Safety and Licensing Board Panel Mrs. Raye Fleming U. S. Nuclear Regulatory Commission 1920 Mattie Road Washington, D.C.
20555 Shell Beach, California 93449 I
8 Mr.. Frederick Eissler Mr. Richard B. Hubbard Scenic Shoreline Preservation MHB Technical Associates Conference, Inc.
1723 Hamilton Avenue, Suite K 4623 More Mesa Drive San Jose, California'95125 Santa Barbara, California 93105 Mr. Carl Neiberger Mrs. Sandra A.
Silver Telegram Tribune 1760 Alisal Street-P.
O.
Box 112 San Luis Obispo, California 93401 San Luis Obispo, California 93402 i
bur. Gordon Silver-Herbert H. Brown, Esq.
1760 Alisal Street Lawrence Cee Lanpher, Esq.
San.Luis-Obispo, California 93401 Christopher B.
Hanback, Esq.
Hill,. Christopher & Phillips John Phillips,-Esq.
1900 M Street, N.W.
Joel Reynolds, ~Esq.
Washington, D.C.
20036 Center for Law in the Public Interest 10203 Santa Monica Drive 1 Byron S. Georgiou, Esq.
Los Angeles, California 90067 Legal. Affairs' Secretary Governor's Office David S.
Fleischaker, Esq.
State Capitol P..O.
Box 1178 Sacramento, California 95814 Oklahoma City, Oklahoma 73102 i
Arthur.C. Gehr, Esq.
Snell & Wilmer 3100 Valley Bank-Center i
Phoenix, Arizona 85073 i
Bruce Norton, Esq.
Norton, Burke Berry & French
-3216 North Third Street Suite 300 Phoenix,. Arizona 85012-Secretary (2)~
U.-S. Nuclear Regulatory Commission 4:
Washington, D.C.-20555 i
Attn.:
Docketing and service Section William J.
Olmstead,~Esq.
i 1
- Charles Barth, Esq.
[
LEdward G.'Ketchen,.Esq.
- Lucinda. Low Swartz,~Esq.
Office of Executive Legal Director
[!c[' JJ J
BETH 042
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U. S. Nuclear Regulatory Commission e e; le3 v
Washington,- D.C. 20555 Douplas A. Attorney #plesby O
for PacificGasandElect[ic' Company l
Dahed:
October 114,-1981
(*)
By_ Courier service i
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