ML20045E805
| ML20045E805 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 03/26/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-040, SECY-A-80-40, NUDOCS 9307060071 | |
| Download: ML20045E805 (13) | |
Text
-
UNITED STATES NUCLEAR REGULATORY COMMISSION WA S HINGToN, D. C. 20555 S"8 "
March 26, 1980 ADJUDICATORY COMMISSIONER ACTION For:
The Commission From:
James A. Fitzgerald Assistant General Counsel
Subject:
Review of ALAB-580 (In the Matter of Pacific Gas and Electric Company)
Purpose:
To inform the Commission of an Appeal Board decisionfwhich, in our opinion, Facilities:
Diablo Canyon Nuclear Power Plant, Units 1 and 2 Review Time Expires:
The period for review has been extended until April 15, 1980 Discussion:
On September 27, 1980, the Licensing ~ Board issued a partial initial-decision in the Diablo Canyon operating licehsing=proceedins Which'16 pertinent M.
part concluded'thh,t2the:'Iac141ty?t:-security planF =:
complied with all applicable'NRC'teghlations. = " ;
During the course of its review of the Board's decision, the Appeal Board asked the Licensing Board what documents it considered in making that finding.
In responding, the Board indi-cated that the actual physical security plan was not part of the record of the proceeding and that the Board had not examined it.
In ALAB-580, the Appeal Board vacated that portion of the September 27 Licensing Board decision.
The Appeal Board stated that it did not believe it to be possible for the Licensing Board to have found that the security plan conformed fully to all regulatory requirements without having at least read the plan.
It asserted that reliance on secondary sources is no substitute for examin-ing the plan's actual provisions.
Rather than remand the matter back to the Licensing Board, CONTACT:
Trip Rothschild, OGC Inf rm hon ;. this recerd v::: 6:eted n
1465 n c dn with tptefom of inbmahon
=g7om>93o327 mbu 7-
'/// e7/
'OILINSR92-436 PDR
e..
The Commission 2
i the Appeal Board decided to conduct a de novo hearing on the adequacy' of the physicar security plan.*
By adopting this approach the Appeal Board was not required to rule on Joint Inter-venor's challenges to the Licensing Board's handling of the proceeding.
hs e caEE6 a~16ok it the plan and berreve--
v it appears'~
in~our view
~
SI' We do not believe.
we
~ do not believe"thit Recommendation:
f_,
(O.
L James A.
tzgerald Assistant General Counsel
Attachment:
ALAB-580 i
A prehearing conference has been scheduled for April 2,1980.
\\
l
4 Comissioners' comments should be provided directly to the Office of the Secretary by c.o.b. Wednesday, April 9, 1980.
Commission Staff Office coments, if any, should be submitted to the Comissioners NLT April 2,1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of when cocments may be expected.
DISTRIBUTION Comissioners Comission Staff Offices Secretariat T t" ' ' ^,, '
' ' ' ~ ' -
' : :.T :, M n."n':
.2 a
a.-
S.~, 1 ~ ;;^.' ' '.".
",~ ~,
T
?.n n.. J.; ti:.h2.:. c.. -
- rK,
. -. r 1-
, -. 4 - 2.. - - n.-
.._g, i
j i
l
~,
- -,=,
.~
1.
,;.i UNITED STATES.OF AMERICA i
NUCLEAR REGULATORY COMMISSION 4
ATOMIC SAFETY AND LICENSING APPEAL. BOARD Richard S. Salzman, Chairman j
Dr. W. Reed Johnson Thomas S.: Moore L
I In the Matter of
)
)
PACIFIC GAS AND ELECTRIC. COMPANY
)
Docket Nos. 50-275 OL
)
50-323.0L (Diablo Canyon Nuclear Power Plant,)
Units 1 and 2)
)
)
l Messrs. Paul C. Valentine,- Palo Alto, California, W. Andrew Baldwin and Yale I. Jones, San Francisco, California, argued the cause and filed a.brief
~
t for intervenor San Luis Obispo Mothers for Peace, appellant.
Mr. Bruce ' Norton, Phoeni::, Arizona, argued the cause, and,,with Messrs. Malcom H. Furbushi
" ~# '
and "Phill'p A'.7 diane, Jr., S'an Francisco ~, ""*" '*"
California, and Arthur C.
Gehr, Phoenix,
-Arizona, filed a brief.for applicant Pacific Gas and Electric Company, appellee _.
Mr. James R. Tourtellotte argued the cause and Mr. Marc R. Staenberg filed a brief for the Nuclear Regulatory Commission staff.
DECISION j
February 15, 1980 j
(ALAB-580)
Among the contentions that intervenor San Luis Obispo.-
1.
Mothers for Peace has been pressing in this operating license proceeding are challenges to the adequacy of-the Pacific Gas and M/dosf-
J W
W Electric Company (PG&E) physical security plan for, protecting the Diablo Canyon nuclear power facility from industrial sab-1/
otage.
A combination of circumstances (including the acci-dental death of intervenor's proffered expert witness) led to several Licensing Board rulings culminating in the Board's holding that intervenor had " voluntarily defaulted" on this issue.
The Board therefore precluded intervenor from going 2/
to hearing on its security plan contentions.--
Nevertheless, at the urging of both the applicant and I
the staff the Board below inspected tha security features of the nuclear plant and took evidence in camera about their adequacy -- albeit in the absence of the intervenor.
On the basis of that inspection and on the evidence presented to it
. : u v s.:u win s uu ul. wu wuw u:wuku D M.w = =a y
=
at the closed hearing, the Licensing Board made an unequivocal'
- nc L.-t.-
- t. m L _ = % a.. Lu.e a -
r, s.
finding "that the PG&E security plan complies with all appif-cable NRC regulations."--3/
1
--1/
The requirements for physical security plans for nuclear power plants are detailed in 10 C.F.R. 873.55 (1979 Rev.).
2/
LBP-79-26, 10 NRC (slip opinion, Part IV, at 93)
(September 27, 1973T.--
3/
Id. at __ (slip opinion at 93-94).
The Licensing Board's decision also considered whether.
the facility is adequately designed to withstand earth-quakes.
As explained in the Appeal Panel Chairman's January 4, 1980, memorandum (unpublished), intervenor was represented on the security plan and earthquake issues by'different counsel with offices in different cities.
The matters were tried separately and respec-tive counsel filed exceptions and briefs independently.
For convenience fand in the absence of any objection) we have treated the matters as two separate appeals; earthquake contentions are to be taken up, by another appeal board with two technical members.
1
On this appeal from that ruling, intervenor generally asser'ts that the Licensing Board erred by (1) finding inter-venor's expert witness unqualified to examine the Diablo Canyon security plan and to testify about its adequacy; (2) holding intervenor had withdrawn from the proceeding by " voluntary default"; (3) inspecting the Diablo Canyon facility's security features in the company of the applicant and the staff's representatives but not intervenor's; and (4) barring intervenor 's substitute counsel from the in camera evidentiary hearing on the adequacy of the security plan.
We need not, however, resolve any of these questions because of a circumstance no party foresaw.
While con-sidering this _ appeal,,w,e wgre, unable.&.oJ.,,e_ term,ine prec.isely o
.m-.,..
what documents.or other material the Licensing Board. relied,
upon when making its security plan finding.
Accordingly, on February 6,1980, we requested that Board to identify all such materials.
The Board responded on February lith with a memorandum stating that "[t]he transcript of the in camera hearing, which contains the prepared testimony of the witnesses, is the only 'documend considered by the Board.
The Board also visually inspected various f eatures of the security system during the site visit."
s e-,
,n u
e--
What is not manifest-from the Licensing Board's response is, first, that neither the in camera hearing transcript nor any other part of the record contains the Diablo Canyon physical security plan and, second, that the Board never 4/
looked at it.
For the reasons which follow, we believe that in these circumstances the Board's finding of regulatory compliance cannot stand.
2.
The evidence adduced at the closed hearing was quite limited.
The applicant effered two witnesses whose tes-timony amounted to no more than the expression of their
" opinion" that the security plan met the Commission's re-quirements.
The basis for this conclusion was not questioned by the Board.
Staff witnesses also testified, mainly to
~
c-L c _ c_5
. ve,t mm we -fu n,w _uc w -- +
explain the staff's methodology for evaluating the Diablo n, a w: w
- -e
. ~. -.: y - - --
i Canyon security plan and to list briefly the plan's salient features.
Lastly, the staff's Security Plan Evaluation Report, which was only slightly more expansive than the staff testimony, was placed into the record as if read.
Reliance on such secondary sources is no substitute for examining the plan's actual provisions.
Our own review 4/
By way of further check, the Chairman and one member' l
of this Board independently inquired of Counsel to the l
Licensing Board Panel specifically whether the Board f
had looked at the Diablo Canyon security plan itself.
Counsel responded that he had checked with the Board i
t members and confirmed that the Board had not done so.
l
\\
)
4
~ '
of that document confirms this.-~5/
There are instances where the plan's conformity with applicable Cobmi,ssion regulations is not self-evident -- and some where it is even doubtful -- even when considered in the light of the evidence adduced at the 6/
closed hearing.--
It may well be that these apparent discre-pancies can easily be explained on pertinent inquiry, but that was the purpose of the in camera hearing session.
We do not believe it possible for the Board to have found that the security plan conforms fully to all regulatory requirements without having at least read that plan.
The Board's security finding is, therefore, legally impermissible.
To be sure, were the Licensing Board correct that inter-venor had defaulted ; ca., ques tion.yp 7do notadecide #--Ethere:.' 4 u,;_.
r arguably may have..been.no Iteed for.the; Boa.rd to spass-on 3be -
s security plan contentions.
A hearing is not mandatory in an operating license proceeding and a board need decide only con-
--5/
Upon examining the in camdra record, we noted the absence of the security pla and proceeded to obtain a copy from
-~
its staff custodian on the mistaken assumption that the Licensing Board had returned it to him for safekeeping.
As mentioned, the Licensing Board never had the plan at j-all.
6/
The regulatory requirements of section 73.55 coupled with the complexities of the plan are such that a brief hearing,
~~
even when supplemented by an hour's walking tour of the plant, are insufficient to dispense with actual examina-tion of the plan.
G 0
6-7/
tested issues.
But a board is not barred from looking
-~
into other concerns where it finds a serious safety issue 8/
that merits further exploration.~~
The adequacy of a security 9/
-~
plan can certainly be such a matter.
Moreover, not only the intervenor but the applicant and the staff both urged that 10/
the Board review the Diablo Canyon security plan.--
Having undertaken to perform that task -- and here we think it had little choice but to do so -- the Board was bound to inquire diligently into the sufficiency of the plan's provisions.
We do not understand the staff or the applicant,.in asking for 11/
-~
that review, to have been suggesting anything else.
No conceivable good is served by making empty findings in the absence of essential evidence.
Thus the unequivocal finding that the secuiity iilsn "complieshitir'all EppYlhabl'6"Mic '" "w i
regulations" -- wFe~r~e"thWLicensing"io'a~r~d nTVsr s'ai tik plihndb9 '
~
~
k 7/
Cincinnati Gas & Electric Co. (Zimmer Station), ALAB-305, 3 NRC 8, 9 (1976); Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222, 226 fn. 10 (1974).
8/
Consolidated Edison Co. of N. Y.
(Indian Point Unit 3),
CLI-74-28, 8 AEC 7 (1974); 10 C.F.R. Ba2.760a and 2.104 (c).
~~
9/
Pacific Gas & Electric Co. (Diablo Canyon Plant, Units 1 & 2), CLI-77-23, 6 NRC 455, 456 (1977).
10/
10 NRC at (slip opinion at 93).
11/
SurpriJingly, neither party offered the security plan into evidence or asked that official notice be taken of it.
"The staff has the obligation to lay all relevant materials before the Board to enable it adequately to dispose of the issues before it."
Consolidated Edison Co. of N. Y.
(Indian Point Station, Units 1, 2& 3), CLI-7 7-02, 5 NRC 13, 15 (1977).
But given the Board's determination to evaluate the security plan, the staff's failure to ask formally that.it be noticed does not excase.the Board',s failure to look at it or, alter-natively, to state why it did not find it necessary to review the actual plan.
is so much waste ink.
of course circumstances may arise where a Board might determine that a thorough inquiry was not necessary.
But in that case its minimum obligation would be to acknowledge the fact and to explain it.
Here the Licensing Board did neither.
Moreover, it is a statutory requirement that the adjudi-catory decisions of thi:5 Commission stand or fall on the 12/
basis of the record on which they rest.
The Administrative Procedure Act (to which NRC proceedings are specifically sub-13/
ject--) mandates in pertinent part that "[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision.
." 5 U.S.C. 8556(e).
Given the duty to decide
~
~
in accordance wit'h.th'e fic'ts' Fr"ov'ideT," "15WMEg'Illtkoilt"'
~
evidence is arbitrary and baseless," ICC v. Louisville & N.
R.
Co.,
227 U.S. 88, 91 (1913) -- a principle that has con-14/
stitutional underpinnings.--
Accordingly, the Board's security
--12/
A licensing proceeding is an adjudication within the meaning of the APA.
Porter County Chapter v.
AEC, 533 F.2d 1011, 1019 (7th Cir.), certiorari denied, 429 U.S.
945 (1976); Citizens for a Safe Environment v.
AEC, 489 F.2d 1018, 1021 (3rd Cir. 1974); Siegel v. AEC, 400 F.2d 778, 785 (D.C. Cir. 1968).
13/
42 U.S..C.
82239 (b) ; see also 5 U.S.C. 5559.
14/
As the Court explained (227 U.S. at 91):
"if the govern-ment's contention is correct, it would mean that the Com-
~~
mission had a power possessed by no other officer, ad-ministrative body, or tribunal under our government.
It would mean that, where rights depended upon facts, the-Commission could disregard all' rules of evidence, and capriciously make findings by administrative fiat.
Such authority, however beneficently exercised in one case, could be injuriously exerted in another, is. inconsistent and comes under the Constitution's with rational justice,bitrary exercise of power."
condemnation o. all ar
4 8-plan finding must be set aside.
3.
Our own concerns about the Diablo Canyon security plan are sufficiently numerous that the question of its adequacy merits consideration de novo.
In the circumstances presented and in the interests of reasonable expedition, we deem it the wiser course to conduct that hearing ourselves. We are bolstered in this view by matters stressed at oral argument --
particularly the application of the general propositions laid down earlier in this proceeding in ALAB-410, 5 NRC 1398 (1977),
to the concrete circumstances of the case.
ALAB-410 was in many ways a matter of first impression.
The diverse readings it has received from the parties before us suggest that it may be in need of refinement -- a t* Jk more suitable to ourselves um w,._ ~..i r
.ex.ts; ehc.n ;_, m,;..;g :..,.;
.;.;.;.:L; :.
=
as its author than to the Board below as its interpreter.
Because we intend to explore fully the adequacy of the security plan in any event, we see little to be gained by resolving the series of questions raised by intervenor's 15/
appeal.
The situation in which they arose is truly unique.
We think it unlikely that'a board will be faced soon again with the farrago of inconsistent positions, substitute counsel, and a dying witness that recurred here.
We believe that we may be aided in developing the record if the intervenor is 15/
Even were intervenor to prevail it would be entitled to no more relief than we now accord.
.i.
m
.p+0 3)('h'e 4
4* %
l0
//o t M, gyyp
/ j'@(4 v
IMAGE EVALUATION k_%
b p#.
y%//
'% [
$[(I#
TEST TARGET (MT-3) 4 4
//,
4 <e
%# #gjjp
/%
/%
~
f 9
l.0 itaHa
'" E {@;2, u
, =m l-l hN u
l.8 l.25 1.4 1.6 4
150mm i
4 6"
i ey g%4> 4%,
+
4 psg
//p
- \\ /A c /
gr+e
,efm,,c.
4>4 o
~
NN 4
o Oy)/
f% 49 i;
[
e
%4L=>J~11A4k.
.x-,.2 }
)
4 A
4
/
y
.;c 0
m^e
.e
- s..
t IMAGE EVALUATION 0%
\\/,O
,p///
'92@
TEST TARGET (MT-3)
/
/Q,[I(g 4
g$>,pl@
kg<e
+
1.0 lllll 2.2
~.3,.
i,l
, = = -.
=
l l 1.8 Imm 1.25 I l.4 I = =
4 1.6kmm 150mm
.m
..w.m.-w-_,,...,n_w,,
l3
' k%r f*%,p,o%
%p2
- AbY, b p(\\
//
e{~
,)
( $
V
~
46; fS.
r 0;,//
sgy y
j j
. ;.,..; _ edd
_,,,j j
p
&' )*
4@@@tQ'd, NN\\(O x
g
////g /
[ 4 #
v IMAGE EVALUATION N
\\//g//7Yg TEST TARGET (MT-3) 4
%'7Ygp}k/
4/
'k; 4?g s
'?'
+
+
1 l.0 lf 2 m r m ggl2 cm l.l t us b122
=*
e I l.8 I
2, I.25 1.4 1.6 4
i l
4 150mm i
4 go y
l I
N?>,%
/A e,
n an
.,oy, f/,,,-
.g+.tw c
t:
4%
o
> q, t
S k '; _ _ = u :AM.~ 221J:1+4_ U21Yb##A'! b
~
s e m
Y N
4
/O e-
.w o
e a-
< /
., [%
O IMAGE EVALUATION
////
'^ k TEST TARGET (MT-3) c
%l
- ti ffg
?"
I.0 m
in a-t 3,.
l,i lllL2g l
ll!=se l 1.8
!i 1.25
'! l.4 t i.6 l==
hzes=
4_.._-.____.__.-
150mm 4___._-.
6
f
- 4%
<j;;,y <,
.p ///h gy7,,
pg 4
.l
~ % ~..
. })
,J j
y.
.: h.,
e.",
a llowed-to participate as'a party in the forthcoming hearings; a
in the exercise of our discretion we will let it do so.
The
. terms of its participation wili, pf course, be' governed by ALAB-410.
In light of the manifest need to av'oid unnecessary dis-L closure of the security plan, we.shal1, decide precisely how we shall. proceed after a closed prehearing conference where, we will consider the parties' suggestions.
An. order calling for such suggestions and calendaring such a conference will follow shortly.
It is appropriate now, however, to apprise all parties that we are determined to move ahead swif tly; that requests for extensions of time or postponements will be looked upon with disfavor; and that any party intending i
to present witnesses should arrange for their services immediately.
Part IV of the partial initial decision of Septemb;r 27, 1979 is vacated.
It is so ORDERED.
FOR THE APPEAL BOARD bbN 5'
C. Je(AT Bishop Secred!ry to the Appeal Boare
[The additional comment of Dr. Johnson follows on page 10.]
z g
F
. ~.
10 -
O e
Additional comment of Dr. Johnson:
My view of intervenor participation in security plan hearings has not changed from that expressed in conjunction with Dr. Quarles in our cone rrence in ALAB-410.
We said there that "had the regulations and precedents favoring it (intervenor participation] not been so clearly drawn, we would have found that nuclear power plant site security plans should not be disclosed in the hearing process."
5 NRC at 1407.
4 l
i l
S 0
e e
c.-