ML20049A833
| ML20049A833 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/29/1981 |
| From: | Lanpher L CALIFORNIA, STATE OF, HILL, CHRISTOPHER & PHILLIPS |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8110020311 | |
| Download: ML20049A833 (6) | |
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W KEftD UNITED STATES OF AMERICA
- p3gg, NUCLEAR REGULATORY COMMISSION Op
$EP30195l, h c$gf*krets7 I
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL'BO
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N In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 O.L.^
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50-323 og ~3, j
(Diablo Canyon Nuclear Power
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e Plant, Units 1 and 2)
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1 i MOTION OF GOVERNOR EDMUND G. BROWN JR. TO STRIKE 7{g
/8g7 PORTION OF PG&E'S OPPOSI"' ION TO STAY MOTION
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In pleadings dated September 17, 1981, PG&E opposed h e g Governor's and Joint Intervenors ' requests that the Appeal Board ; L.
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stay the effectiveness of the Diablo Canyon low power license.-
In its opposition to Joint Intervenors ' stay application, PG&E referred to and then attached as Exhibit B, a FEMA anal'ysis of the August 19, 1981 Diablo Canyon emergency exercise and a memor-andum of Ms. Joan Aron, NRC Office of Policy Evaluation, regarding the same exercise.
In its opposition to the Governor's stay motion, I
PG&E requested this Board to refer to PG&E's arguments against the l
Joint Intervenors' stay application and thus to refer to the same l
FEMA materials and memorandum.
The FEMA analysis and the Aron memorandum are not part of the l
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record in this proceeding.
The Governor, therefore, moves the l
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PG&E Opposition to Joint Intervenors' Application for a Stay; PG&E Opposit: ion to Motion of Governor Edmund G. Brown Jr. for Stay of Effectiveness of the Diablo Canyon Fuel Loading and Low Power Operating License.
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. Scard to strike these extra-record documents and references to them from PG&E's filings and to render its decision on the stay motions only on the basis of the evidence of record.
The decision cf this Board must be based only on the evidence of record.
10 C.F.R. Part 2, App. A, S V(e) (2).
Indeed, the courts have repeatedly stated that adjudicatory decisions must be based upon the evidence of record.
- See, e.g.,
Marathon 011 v.
EPA, 564 F.2d 1253, 1264-65 (9th Cir. 1977); Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 881-82 (1st Cir.), cert. denied, 439 U.S. 824 (1978).
PG&E has acted improperly by referring to and enclosing the extra-record FEMA materials and the Aron memorandum.
The record was closed in this proceeding on May 22, 1981.
The FEMA materials and Aron memorandum date from September 1981, well after the record was closed.
PG&E has not moved -- let alone made even the slightest effort toward the required showing -- to reopen the record for the purpose of including the new materials.-2/
Accordingly, since the 2/
PGSE is surely well aware of the criteria for reopening closed records, since PG&E in the past has vigorously opposed motions to reopen by citing such criteria.
- See, e.g.,
" Response of PG&E to Motions of Intervenor, San Luis Obispo Mothers for Peace, to Augment the Record in the Security Proceedings with a Report of a Security Occurrence; and for Leave to take Depositions of NRC Staff Personnel and Applicant, PG&E,"
j August 17, 1981.
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materials are not part of the record, the Governor moves the 3/
Board to strike the materials from PG&E's filings.~
Respectfully submitted, 4
Byron S. Georgiou,.Esq.
Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814
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Herbert H. Brown Lawrence Coe Lanpher HILL, CHRISTOPHER AND PHILLIPS, P.C.
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1900 M Street, N.W.
Washington, D.C.
20036 Attorneys for Governor Brown of the State of California September 29, 1981 t
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In the event that PG&E later moves to reopen the record to I
include the FEMA materials or the Aron memorandum, the GovernQr will demonstrate why these materials should not be included in the record.
Further, if the Board, sua sponte, decides to consider these data, the Governor will need: (1) r j
to depose FEMA and NRC personnel with knowledge of these materials; and (2) an opportunity to present the Governor's views on the materials.
Such a situation,'of course, would not be desirable because a more meaningful FEMA document I
(i.e.,
" findings") on offsite emergency preparedness at Diablo Canyon will be forthcoming, and such FEMA'documens is already slated to be a central feature of the full power hear-
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ing.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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In the Matter of
)
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PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power
)
Plant, Unit Nos. 1 and 2)
)
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CERTIFICATE OF SERVICE I hereby certify that copies of the " MOTION OF GOVERNOR EDMUND G. BROWN JR. TO STRIKE PORTION OF PG&E'S OPPOSITION TO STAY MOTION" in the above-mentioned proceeding have been served to the following on September 29, 1981 by U.S. Mail, first class.
Mr. Thomas Moore, Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. W. Reed Johnson i
Atomic Safety and Licensing Acpeal Board O.S. Nuclear Regulatory Cormission Washington, D.C.
20555 Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Chairman 4
Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John F. Wolf, Esq., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Mr. Glenn O.
Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. Jerry R. Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 William J. Olmstead, Esq.
Edward G. Ketchen, Esq.
Lucinda Low Swartz, Esq.
Office of Executive Legal Director BETH 042 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 ATTENTION:
Docketing and Service Section Mrs. Elizabeth Apfelberg 1415 Cozadera San Luis Obispo, CA 93401 Janice E. Kerr, Esq.
Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, California 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, California 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara, California 93105 Mr. Gordon Silver Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, California 93401 John Phillips, Esq.
Center for Law in the Public Interest 10203 Santa Monica Drive Los Angeles, California 90067 Bruce Norton, Esq.
Norton, Burke, Berry & Junck 3216 North Third Street, Suite 300 Phoenix, Arizona 85012
...w-
. Philip A. Crane, Jr., Esq.
F. Ronald Laupheimer Richard F. Locke, Esq.
Pacific Gas and Electric Company P.O. Box 7442 San Francisco, California 34106 David S. Fleischak'er, Esq.
P.O. Box 1178 Oklahoma City, Oklahoma 73101 Arthur C. Gehr, Esq.
Snell & Wilmer 3100 Valley Bank Center Phoenix, Arizona 85073 Mr. Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose, California 9512S Mr. Carl Neiberger Telegram Tribune P.O.
Box 112 San Luis Obispo, California 93402 i
Byron S. Georgiou, Esq.
Legal Affairs Secretary Governor's Office State Capitol Sacramento, California 95814 V
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a.mA c-au-;w Lawrence Coe Lanpher' HILL, CHRISTOPHER AND PHILLIPS, P.C.
1900 M Street, N.W.
Washington, D.C.
20036 l
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