ML20032A088
| ML20032A088 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/20/1981 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8110280278 | |
| Download: ML20032A088 (11) | |
Text
._
00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIM OCT 23 P4:35 BEFORE THE COMMISSION OFrlCE CF SECRETARY OMEilNG & SERV".-
In the Matter of
)
ORANCH
)
Docket Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC CCMPANY
)
50-323-C.L.
)
/ Mj._L*h
( Diablo Canyon Nuclear Power
)
Full Power Probee'di
,4, Plant, Unit Nos. 1 and 2)
)
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1,
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A,.O OCro ? j'oOle
' Uq APPLICANT PACIFIC GAS AND ELECTRIC COMPANY'S
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IESPONSE TO JOINT INTERVENORS' REQUEST FOR 7
A 11 DIRECTED CERTIFICATION
'1c?'C*e 2 8
On Octooer 1, 1981, Applicant PACIFIC GAS AND ELECTRICi i I
COMPANY
(" PGandE") reque s ted this Commission to reconsider its Memorandum and Order of September 21, 19811/ insofar as it directed the Atomic Safety and Licensing Board ("ASLB") to include contentions l
l 10 and 12 (as proposed for the low power licensing proceeding) in the I
f ull power proceeding.
On October 8, 1981, Joint Intervenors responded to that motion and filed a request for directed certification to include other contentions which were denied by the ASLB.
This response respectfully requests the Commission to deny the request for certification in all respects and to reverse itself insofar as its order of September 21, 1981 puts into litigatian contentions 10 and 12.
1/ acific Gas and Electric Company (Diablo Canyon Nuclear P
Power Plant, Units 1 and 2), CLI-81-22, NRC (September 21, 1981).
9 503 S
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l C
I BACKGROUND The operating license proceeding for the Diablo canyon l
Nuclear Power Plant commenced upon the applicatic.7 being docketed in 1973.
All required hearings were held and tne evideistiary record was closed on March 12, 1979.
Shortly thereaf ter, t.se TMI accident occurred.
On January 20, 1980, the Nuclear Regulatory Commission issued a " Statement of Policy for Further Commission Guidance ror Power Reactor Operating Licenses."
This policy statement referenced a docu aent dated June 20, 1979, entitled "TMI-Related Requirements for New Operating Licenses" (NUREG-0694).
NUREG-0694 was subsequently superseded and clarified by NUREG-0727.
On December 18, 1980, the Commission issued a revised "Staten.ent of Policy; Further Commissiert Guidance for Power Reactor Operating Licenses" (CLI-8 0-4 2) which announced the Commission's approval of NUREG-0737,
" Clarification of TMI Action Plan Requirements."
Following the TMI accident and during the period this Commission e:as formulating its various policy decisions, PGandE filed a motion for fuel load and low power testing on July 14, 1980.
In December of 1980, Joint Intervenors filed contentions concerning the request for low power license.
The Staff and PGandE filed responses, and a two-day prehearing conference was held on January 28 and 29, 1981, wherein the contentions were discussed.
After considering the contentions,. the ASLB issued a Prehearing Conference Order on February 13, 1981 admitting certain contentions and denying others.
On April,
i 1,
1981, this Commission gave f urcher direction as to its policy regarding NUREG-0737.2/
Hearings were held, a partial initial decision was rendered and on September 22, 1981, the f ucl load and low power license was issued.
While the fuel load and low power tast license proceedings were underway, Joint Intervenors filed a Motion to Reopen the closed full power proceedings on March 24, 1981.
The Staff and Applicant filed responses to that motion and on June 30, 1981, the day before the previously scheduled prehearing conference, Joint Intervenors filed a Statement of Clarified Contentions.
It is interesting to note that contention 10, o interjected into these proceedings by the Commission order of September 21, 1981, was withdrawn by Joint Intervenors in the June 30, 1981 filing (page 7).2/
After discussion of the proposed contentions and the parties' respective positions, the ASLB issued its Memorandum and order admitting one of eight proposed contentions on August 4, 1981.3/
2/ acific Gas and Electric Company (Diablo Canyon, Units P
1 and 2), CLI-81-5, 13 NRC 361 (1981).
2/ ontention 10 from the low power proceeding became C
contention 6 in the Joint Intervenors' Motion to Reopen of March 24, 1981 and contentions 5-7 9tre withdrawn by Joint Interverors in their Statement of Clarified Contentions of June 30, 1981.
3/It is difficult to ascertain precisely how many contentions Joint Intervenors claim should be litigated.
In thei r October 8, 1981 filing, they state the ASLB " accepted only one contention and arbitrarily rejected the remaining ten (at 2).
Their Statement of Clarified Contentions of June 30, 1981 contains but 8 contentions as does their argument at pages 9 through 21 of their October 8, 1981 Request for Certification.
o II JOINT INTERVENORS'-REQUEST FOR DIRECTED CERTIFICATION IS WITHOUT MERIT AND SHOULD BE DENIED The Commission's policy statements dictate that there are potentially but two possible types of contentions in the Diablo Canyon full power proceedings.
First, previously admitted contentions and second, new contentions.
We are dealing here exclusively with the latter.
In its Revised Policy Statement, the Commission indicated that where the time for filing contentions has expired, no new TMI contentions would be accepted absent a showing of good cause and canpliance with 10 C,F.R. 52.714(a)(1).E/
Therefore, as to their proposed contentions it is mandatory that Joint Intervenors comply with 10 C.F.R. S2.714(a)(1).5/
E/ he Commission stated:
T "The Commission believes that where the time for filing contentions has expired in a given case, no new TMI-related contentions should be accepted absent a showing of good cause and balancing of the factors in 10 C.F.R.
S2.714(a)(1).
The Commission expects adherence to its regulations in this regard.
Also, ? resent standarda governing the reopetiing of hearing records to consider new evidence on TMI-related issues shall be adhered to.
Revised Policy Statement, J
pp. 8-9 of Slip Op.
5/ ansas City Gas & Electric Co., et al. (Wolf Creek ~
K Genera ting Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978)..-
i It is uncontroverted that 10 C.F.R. 52.714(a)(1) requires that one desiring to have a late-filed contention.
admitted must make a-filing showing:
(1)
Good cause, if any for failure to file on time; (2)
The availability ~of other meEns whereby the petitioner's interest will bc protected; (3)
The extent to which the petitioner's participation may reasonably be expected to assist in developing 2 sound record; (4)
The extent to which the petitioner's interest will'be represented by existing parties; and (5)
The extent to which the petitioner's participa-tion will br proceedings.gpdentheissuesordelaythe-l It is uncontroverted that in the Diablo proceeding, the record on the previously admitted contentions and all other l
i issues was closed.
Any new contentions must meet the requirements for reopening a closed record.
The proponent has a heavy burden and must show, first, significant new infortation and second, that that information would have caused a different result if it had been considered originally.
The extent of the burden is described as follows:
)
"[I] t must appear chat reopening the.
proceeding might alter the result in some material respect.
In the case of a motion which is untimely without good cause, the movant has an even greater burden; he must demonstrate not merely that the issue is significant but, as well, that the matter is 2/10 c.r.R. s2.714(a)(1).....
1 of such gravity that the public interest demands its further e*,ploration (citations omitted). These criteria govern each issue to be reopened; the fortuitous circumstance that a proceeding hs been or will be reopened on other issues has no significance."
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2) aLAB-486, 8 NRC 9, 21-22 (1978).
See Kansas Gas & Electric Company (K0lf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 337-38 (1978); Houston Lighting & Power Company (Allen Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 386 (1979).
Limitations could even be placed on contentions submitted by new intervenors which are related to issues litigated in earlier hearings; Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-8 0-3 3,
NRC
, CCH Nuc. Reg.
Rep. 130, 533 at 29, 600 (September 25, 1980).
We repeat herein that no effort has been made by any party to show "significant new evidence not Jrcluded in the record, that materially af fects the decision" in these proceedings as respects Joint Intervenors' proposed contentions.
In its Response in Opposition to Licensee's Motion for Reconsideration, Joint Intervenors state:
the sheer bulk of the March 24 Motion
. demonstrates graphically the to Reopen.
frivolous nature of PG&E's representation to the Commission that 'no effort has ever been made by any party to show that those s tandards have been satisfied. '"
(Joint Intervenors' Response, October 8,
- 1981, P.
23.) - - _ _ _ _ _ _ _ _ _ _ _
" Sheer bulk" will not reopen a closed record.
The strict requirement of significant new evidence that would materially affect the decision remains the standard and the
" sheer bulk", upon review, fails in its entirety to even come close to the required standard.
Joint Intervenors apparently feel that their burden is met by repeatedly writing the words
" safety",
"TMI",
" accident" and " health and safety".
We would respectfully submit that " arm waving" is not what the majority of this Commission had in mind when it issued its various policy statements emanating from the TMI accident.
To put forward a new contention in a closed proceeding, the proponent must produce "significant new evidence" that " materially affects the decision".
Joint Intervenors have done nothing more than wave their acus.
Not one of their proposed contentions is accompanied by anything more than a perceived relationship with TMI and words to the ef fect that obviously the contention is related to safety.
The key ingredient missing from all of the proposed contentions is "significant new evidence" as to why the proposed contention is in any way peculiar to Diablo Canyon.
For example, Joint Intervenors combined contentions 15 and 16 allege that "Diablo Canyon.
cannot be granted an operating license until PG&E demonstrates that stre.ctures, systems, and compo: tents important to safety will not be prevented from operating and perferming their intended functions as a result of interactions with non-safety related systems."
(Statement of Clarified Contentions at 15.)
Joint Intervences of fer no t
l i
evidence, let alone significant evidence, that this contention is peculiarly a problem, if at all, for Diablo Canyon.
They simply l
say it is.
Apparently, by repeating the allegation, Joint Intervenors hope to convince this Commission that because they say it, it must be so.
If the Commission is to follow Joint Intervenors logic, then any party can reopen any closed proceeding by simply setting forth an allegation that something is related to TMI (and what is not?) and it affects safety or shows that regulations are not met.
In reading the policy stetements of this commission, PGandE cannot believe the majority of this Commission intended that resulc.
l For the reasons set forth above and its Motion for Reconsideration of October 1,1981, it is respectf ully submitted that Joint Intervenors' Request for Directed Certification be denied and that Contention,s 10 and 12 be withdrawn from the full power proceeding.
Respectfully submitted, MALCOLM H.
FURBUSH PHILIP A. CRANE, JR.
Pacific Gas and Electric Company 77 Beale Street San Francisco, California 94106 (415)781-4211 ARTHUR C. GEHR Snell & Wilmer 3100 Valley Center Phoenix, Arizona 85073 (602)257-7288 BRUCE NORTON l
Norton, Burke, Berry & French, P.C.
i 3216 N. Third Street Suite 300 Phoenix, Arizona 85012 (602)264-0033' l
Attorneys for Pacific Gas and Electric Company
_a im 6 By Norton i
aruc-DATED:
October 29, 1981'.
~9-
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
Docke t Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY
)
50-323 0.L.
)
(Diablo Canyon Nuclear Power
)
Full Power Proceeding Plant, Unit Nos.1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " APPLICANT PACIFIC GAS AND ELECTRIC COMPANY'S RESPONSE TO JOINT IliTERVENORS' REQUEST FOR DIRECTED CERTIFICATION", dated October 20, 1981, have been served on the following by ieposit in the United States mail, postage prepaid, this 20th day of October, 1981:
Chairman Nunzio J.
Palladino Mr. Thomas Moore, Chairman Commissioner Victor Gilinsky Dr. W. Reed Johnson Commissioner Peter A. Bradford Dr. John H.
Buck Commissioner John F.
Ahearne Atomic Safety and Licensing Commissioner Thomas Roberts Appeal Board U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commissio:
Washington, D.C.
20555 Washington, D.C.
20555 The Hon. John F. Wolf, Chairman Gordon Silver Atomic Safety and Licensing Board 1760 Alisal Street Mail Drop East West 450 San Luis Obispo, CA 93401 U. S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Sandra A.
Silver 1760 Alisal Street The Hon. Glenn O.
Bright San Luis Obispo, CA 93401 Atomic Safety and Licensing Board Mail Drop East West 450 Mr. Richard B. Hubbard U.
S. Nuclear Regulatory Comm'n MHB Technical Associates Washington, D.C.
20555 1723 Hamilton Avenue - Suite K San Jose, CA 95125 The Hon. Jerry R. Kline Atomic Safety and Licensing Board Mail Drop East Wesc 450 U. S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Joel Reynolds, Esq.
Mrs. Elizabeth Apfelberg John R. Phillips, Esq.
c/o Nancy Culver Center for Law in the 182 Luneta Drivc Public Interest San Luis Obispo, CA 93401 10203 Santa Monica Blvd.
Los Angeles, CA 90067
i David F.
Fleischaker, Esq.
Mrs. Raye Fleming P. O. Box 1178 1920 Mattie Road Oklahoma City, OK 73101 Shell Beach, CA 93449 Mr. Frederick Eissler Carl Neiburger Scenic Shoreline Preservation P. O. Box 112 Conference, Inc.
San Luis Obispo, CA 93402 4623 More Mesa Drive Santa Barbara, CA 93105 William J. Olmstead, Esq.
J. Anthony Kline, Esq.
Charles Barth, Esq.
Byron S. Georgiou, Esq.
Lucy Swartz, Esq.
Legal Affairs Secretary Edward G. Ketchen, Esq.
to the Governor office of Executive Legal Director State of California BETH 042 State Capitol Building U. S. Nuclear Regulatory Coma'n Sacramento, CA 95814 Washington, D.C.
20555 Atomic Safety and Licensing Board Herbert H. Bro *n, Esq.
Panel Lawrence Coe Loapher, Esq.
U. S. Nuclear Regulatory Comm'n Hill, Christopher & Phillips Washington, D.C.
20555 1900 M Street, N.W.
Washington, D.C.
20036 Docketing and. Service Section office of the Secretary U. S. Nuclear Regulatory Comm'n Washington, D.C.
20555 Janice E.
Kerr, Esq.
Lawrence Q. Garcia, Esq.
350 McAllister Street San Francisco, CA 94102 Bruce Norton