ML20054L996
| ML20054L996 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/07/1982 |
| From: | Bradley Jones NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8207090137 | |
| Download: ML20054L996 (14) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
PACIFIC GAS AhD ELECTRIC COMPANY Docket Nos. 50-275 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant )
Unit Nos. I and 2)
)
NRC STAFF RESPONSE TO JOINT INTERVEN0RS' MOTION TO RE0 PEN THE RECORD W
Bradley W. Jones Counsel for NRC Staff July 7, 1982 fe r:c,:if.T o c nT if:3 yorbifle.1By_
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July 7,1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PACIFIC GAS AND ELECTRIC COMPANY
)
Docket Nos. 50-275 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant )
Unit Hos. I and 2)
)
NRC STAFF RESPONSE TO JOINT INTERVENORS' MOTION TO RE0 PEN THE RECORD 1.
INTRODUCTION On June 8, 1982 the San Luis Obispo Mothers for Peace, Scenic Shoreline Preservation Conference, Inc., Ecology Action Club, Sandra Silver, Gordon Silver, Elizabeth Apfelberg, and John J. Forster (Joint Intervenors) filed with the Appeal Board " Joint Intervenors' Motion t"o Reopen the Record". That Motion requested that the Appeal Board revoke the Diablo Canyon low power operating license, vacate the Licensing Board's conclusions in its July 17, 1981 Partial Initial Decision (PID) as to quality assurance, and reopen the record to consider the quality assurance and quality control issues.1/ For the reasons discussed below, the Staff opposes Joint Intervenors' Motion to Reopen in its entirety.
-1/
The low power record is the only record presently before the Appeal Board which could be reopened as a result of Joint Intervenors' motion.
It should be recognized, however, that the record for low power will form a part of the record for the Licensing Board's decision on the full power license.
See, 10 C.F.R. 9 50.57(c)
II. BACKGROUND On July 17,'1981 the Atomic Safety and Licensing Board (Licensing Board) in the above proceeding issued a PID which authorized the issuance of an operating license authorizing fuel loading and low power testing for the Diablo Canyon Nuclear Power Plant, Unit 1.
In that PID the Licensing Board found, inter alia, that:
- 27. Based on the uncontroverted testimony of both Applicant and Staff the Board finds that the Diablo Canyon quality assurance program for both the Design and Construction phase and the Operations phase have been and are in compliance with the requirements of 10 C.F.R. Appendix B, and that the iinplementatior, of both programs is acceptable to the Board.
Pacific Gas ad Electric Company (Diablo Canyon Nuclear Plant, Units 1 and 2), LBP-81-21, 14 NRC 107, 116 (1981).
On September 21, 1981, the Nuclear Regulatory Commission (Commission or NRC) authorized the NRC Staff to issue a license to Pacific Gas and Electric Company (PG&E) for fuel load'.ng and the conducting of tests at up to 5% of rated power at the Diablo Canyon Nuclear Plant, Unit 1.
CLI-81-22, 14 NRC 598 (1981). On September 22, 1981, the NRC Staff issued such a license. License No. DPR-76.
In late September 1981, in the course of responding to a special NRC request for information, an apparent error in the seismic design of equipment and piping in the containment annulus of Diablo Canyon Unit I was detected by PG&E and reported to the NRC. Based upon that information and additional information contained in NRC Staff Reports (Inspection Reports)Nos. 59-275/81-29 and 50-323/81-18, the Commission on November 19, 1981 issued an Order suspending the Diablo Canyon Unit 1 low power license, pending the satisfactory completion of the actions (a verification program by an independent reviewer) specified in attachment 1 to that Order. CLI-81-30, 14 NRC 950 (1981). That Independent Design Verification Program (IDVP), having been approved by the NRC Staff, is proceeding with Teledyne Engineering Services acting as the principal independent company conducting the review.
In the course of the IDVP, which is divided into Phase 1 and Phase 2, the quality assi:rance and quality control areas will be investigated by the independent reviewer.
Phase 1, which is scheduled to be finished later this, year, must be completed prior to any reinstate-ment of the low power license. During Phase 1, independent reviewers will investigate, among other areas, the pre-1978 quality assurance and quality control aspects involved in the seismic design of Diabio Canyon.
In Phase 2 quality assurance and quality control will be investigated without limitation to the seismic design area or time frame.
In accordance with the Commission's November 19, 1982 Order, both Joint Intervenors and Governor Brown, through counsel and expert consultants, have been allowed to comment on the verification program prior to the Commission's approval of the program and during the course of its implementation.
Concurrently with the above actions by the Commission, Joint Inter-venors and Governor Brown are pursuing an appeal of the Licensing Board's PID with this Appeal Board, briefs having been filed on September 2,1981.
Additionally, on September 17, 1981 both Joint Intervenors and Governor Brown filed a Request for a Stay of the effectiveness of the Licensing Board's PID on low power pending completion of the appeal as to that decision. Although oral argument was held on November 20, 1981, no deci-sion has been made regarding the issuance of the requested stay as a consequence of the Comission's November 19th Order.
In an Order dated
- September 14, 1981, however, the Appeal Board indicated that it should receive three business days notice prior to the reactor going critical so that the Appeal Board could take action pursuant to the stay request if necessary.
September 14, 1981 Order at 4.
It is within the contaxt of the above appeal that Joint Intervenors have requested that the low power license be revoked and the record reopened on the quality assurance and quality control issues.
III. DISCUSSION Joint Intervenors' Motion to Reopen raises two distinct issues. The first is whether the low power operating license for Diablo Canyon should be revoked. The second is whether the record in the low power proceeding should be reopened to consider new information related to quality assurance and quality control. Motion at 2.
Each of these issues is raised by information discovered in the course of the verification program ordered by the Commission and the discoveries leading up to that verification program. The Staff will treat each separately.
A.
Revocation of the Diablo Canyon Low Power Operating License Is Not Appropriate.
In its Order of November 19, 1981, pursuant to 10 C.F.R. 99 2.202 and 50.100, the Commission suspended the Diablo Canyon Low Power Operating License and ordered that the suspension was to remain in effect until the utility had conducted a verification program to the satisfaction of the NRC. Order at 3.
The Commission's action was in the form of an enforce-ment action concerning a license which had been previously issued by the Commission. One of the actions which the Commission could have taken
. under those provisions, but did not take, was revocation of the low power testing license. Thus, this case is in an unusual position, the Comission having ordered and continuing to monitor an investigation into the very issues and events on which the Joint Intervenors now ask the Appeal Board to take concurrent action. Such action is unnecessar, and inappropriate.
The Commission, in suspending the low power operating license, stated the public health, safety, and interest required that the suspension be imediately effective. Order at 3-4.
The ordering of an imn.ediate suspension of an operating license, without the opportunity for a prior hearing, is an extraordinary remedy which is justified only so long as the facts supporting that action exist.2/ When the situation changes, the agency should summarily, and the Comission has recently ruled must, lift the suspension and restore the original rights under the license.3_/ Consequently, when the Comission has determined that the public health and safety no longer requires a suspension of the Diablo Canyon Low Power Operating License full rights under that license must be restored.
-2/
See Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-73-38.
E-KEC 1082 (1973). There, the Comission held that the Director of Regulation had discretion to modify a suspension order prior to the conduct of a hearing where subsequent developments warranted lifting of the suspension.
Id. at 1083. See also Sacramento Municipal Utility Dist ict (Rancho Seco Nuclear Generating Station),
CLI-79-7, 9 NRC 680 (1979) (Comission lifted the imediate suspen-sion of the Rancho Seco license while permitting hearings to continue).
-3/
Metropolitan Edison Company (Three Mile Island, Unit No. 1)
CLI-81-34, 14 NRC 1097 (1981); see also Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.1978); ICC v. Oregon Pacific Industries, Inc., 420 U.S. 184 (1975) (concurring opinion of Justice Powell).
Resolution of the present Motion should recognize that the Comission is monitoring the reverification program and that the suspension will not be lif ted until the Comission has concle ' i that the public health and safety will not be endangered by operation under the license.
- First, this is not a situation where, absent imediate action by the Appeal Board, there is some danger to the public health and safety. The Comis-sion has specifically taken upon itself certain actions to protect the public health and safety. Second, the appropriate action for the Appeal Board at this point, if it believes further actions are necessary to protect the public health and safety, would not be a sumary revocation of the authorization contained in the Licensing Board's July 17, 1981 Partial Initial Decision. Rather the appropriate action, if any need be taken, would be for the Appeal Board to stay the license pending the Appeal Board's determination of the issues put forward by Joint Intervenors.
In fact, already pending before the Appeal Board is Joint Intervenors September 10, 1981 Request for a Stay of the low power operating license during the course of the Appeal Board's review, filed pursuant to 10 C.F.R. 5 2.788. Additionally, as a result of the Appeal Board's September 14, 1981 Memorandum and Order, the Appeal Board will have 3 days notice prior to the Diablo Canyon Unit 1 going to criticality in order that it may rule on the pending stay request.
In sum, no action car take place under the low power operating license until Phase 1 of the Commission's verification program, which is looking into the very issues raised by Joint Intervenors, is completed and the Comission has concluded that the public health and safety is adequately. protected.
Even at that point notice must be given to the Appeal Board so that it may determine the, appropriateness of issuing a stay while the Appeal Board determines whether it should modify the Licensing Board's July 17, 1981 PID. Under these circumstances it is unnecessary, and would be inappropriate, for the Appeal Board to revoke the low power operating license for Diablo Canyon Unit 1.
B.
Joint Intervenors' Request for a Reopening of the Record Should Not Be Granted.
It is well established that the Appeal Board may reopen a record to consider new information upon appeal of a licensing board' action.S The standards for determining whether to reopen a closed record are similarly well established. The standard for reopening the record is whether there is significant new information such that the original decision wculd have been changed if the information had originally been considered.
In the Matter of Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 328 (1978).
In the present action the NRC has acknowledged tFat, had the information which prompted the verification progran been known at the time when the low power operating license was issued, the Commission would not have issued
-4/
See Pacific Gas and Electric Company (Diablo Canyon Units 1 and 2),
% 3B-580, 11 NRC 227 (1980); ALAB-598, 11 NRC 876 (1980); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 28), ALAB-463, 7 NRC 341, 351-52 (1978).
that license.5_/ In addition to that information, the Joint Intervenors have added information which has been gathered as a result of the IDVP.
Motion at 5 and Affidavit attached to the Motion. While the Staff takes no position at this time as to whether the utility has adequately dealt with the identified problems (and no such conclusion can be expected until the IDVP is completed), the allegations contained in Joint Inter-venors' Motion to Reopen appear to meet the standard for reopening a closed record. Nevertheless, under the unique circumstances of this proceeding it does not follow that it would be appropriate for the Appeal Board to reopen the record for a further hearing on the new information at this time.
In this proceeding, the Comission has already taken vigorous enforcement action in the form of an immediate suspension of the operating license. No person sought to contest that enforcement action.
Moreover the Commission itself has established a procedure for dealing with the precise problems identified by the Joint Intervenors. And finally, the Commission has provided, within the framework of the IDVP an oppor-tunity for the Joint Intervenors and Governor Brown to provide comments and input as to the IDVP regarding the selection of the independent reviewer, the scope of the program, and its findings as the program
-5/
The Comission stated in its November 19, 1981 Order that "Had this information been known to the Comission on or prior to September 22, 1981 Facility License No. DPR-76 would not have been issued until the questions raised had been resolved." Order at 3.
To the same effect are the statements of the Director of Nuclear Reactor Regulation at an October 19, 1981 meeting concerning the reverification prograni. Transcript of October 9,1981 meeting at 117.
progresses.N November 19, 1981 Order, Attachment 1 at 5.
Both Counsel for the Governor and Joint Intervenors, as well as Richard Hubbard, who has acted as an expert witness for Governor Brown in the Diablo Canyon proceeding, have had the opportunity and have taken advantage of that opportunity to comment on the IDVP as it has proceeded. See e.g. Meeting Transcript at 143-147 (March 25, 1982).
In view of the foregoing it is not apparent, nor have Joint Intervenors provided any basis for conclud-ing, that the conducting of further hearings at this time by the Appeal Board will add anything in resolving the problems which formed the basis for Joint Intervenors' motion.
In Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CL1-80-10,11 NRC 438 (1980) the Commission discussed whether, as a result of an enforcement action involved in that request for a hearing, a hearing should be granted as a matter of discretion. The Commission stated:
The Director's order makes very clear-and the licensee admits-that construction practices at Marble Hill site have failed to meet applicable standards in a number of respects. The NRC Staff is continuing its investigation of these practices and the Director and the Commission will review all of the steps proposed by the licensee to correct the deficiencies. Although SAS asserts that a hearing is necessary to develop "as complete a factual record as possible for the assessment of the extent to which they have been and can be repaired and mitigated," SAS does not state specifically what additional facts might be uncovered by a public hearing that have not been and will not be by pending investigations.
Id. at 443.
-6/
Comissioner Roberts recognized in a dissent to the November 19, 1981 Suspension Order that it was highly unusual to allow adver-sarial parties to participate in an enforcement investigation.
Slip Opinion, dissent at 3.
The Staff recognizes that the above case involved a request for a hearing in an enforcement action, while Intervenors are requesting to reopen a licensing action. Nevertheless, the case does recognize that in circumstances not entirely dissimilar to the present case, the Comission has concludeo that a hearing may serve no useful purpose.
9 Further, in the present case the Governor's and Joint Intervenors' participation in the Comission's investigation lends support to the course of action proposed by the Staff.
It should also be recognized that, even if the Appeal Board were to consider the issues raised in Joint Intervenors Motion, the appropriate remedy at the conclusion of any hearing, if it was determined that the quality assurance and quality control problems had not been adequately addressed, would be to deny the Applicant the requested license until the deficiencies had been adequately addressed. The Comission is involved in a program specifically to investigate whether any deficiencies exist. Order at 3 and attachment 1.
That process is not complete.
There does not, therefore, appear to be anything to be gained by having a reopened hearing running concurrently with the Comission's investiga-tory proceeding already in place, which may well resolve Intervenors' concerns and in which they already have the opportunity to participate.
In view of the highly unusual circumstances of this case as outlined above, the Staff believes it is a rational and supportable conclusion that, even though the standards for reopening a closed record may be met, it would be appropriate to decline to reopen at this time to conduct further hearings on the issues raised in Joint Intervenors Motion to Reopen.
It would be pure speculation at this point in time as to whether
. the IDVP would result in a situation where further hearings would serve some useful purpose.
For the above reasons the Staff urges the Appeal Board to deny the motion to reopen the record, without prejudice to any party refiling a motion to reopen at the conclusion of the IDVP.
IV. CONCLUSION The Joint Intervenors request to revoke the low power operating license for Diablo Canyon Unit 1 should be denied because that drastic action is unnecessary to protect the public health and safety and would be inappropriate under the circumstances of this case. Additionally, although the standards for reopening a closed record may be met in Joint Intervenors' Motion to Reopen, a reopened hearing at this time and under the circumstances of this case, would serve no purpose.
For the above
' reasons the Staff urges the Appeal Board to deny Joint intervenors' Motion to Reopen in its entirety.
Respectfully submitted, 4/'
Bradley W. Jones Counsel for NRC Staff Dated at Bethesda, Maryland this 7th day of July, 1982.
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 0.L.
)
50-323 0.L.
(Diablo Canyon Nuclear Power Plant
)
Unit, Nos. I and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO JOINT INTERVENORS' MOTION TO RE0 PEN THE RECORD" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 7th day of July, 1982:
Dr. John H. Buck Dr. Jerry Kline Atomic Safety and Licensing Appeal Administrative Judge Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Washington, D.C.
20555
- Dr. W. Reed Johnson Philip A. Crane, Jr., Esq.
Atomic Safety and Licensing Appeal Pacific Gas and Electric Company Board P.O. Box 7442 U.S. Nuclear Regulatory Commission San Francisco, CA 94106 Washington, D.C.
20555
- Mr. Frederick Eissler.
Mr. Thomas S. Moore, Member Scenic Shoreline Preservation Atomic Safety and Licensing Appeal Conference, Inc..
Board 4623 More Mesa Drive U.S. Nuclear Regulatory Commission Santa Barbara, CA 93105 Washington, D.C.
20555
- Mrs. Raye Fleming John F. Wolf, Esq.
1920 Mattie Road Administrative Judge Shell Beach, CA 93449 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Richard E. Blankenburg, Co-publisher Washington, D.C.
20555
- Wayne A. Soroyan, News Reporter South County Publishing Company Mr. Glenn 0.. Bright P.O. Box 460 Administrative Judge Arroyo Grande, CA 93420 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Byron S. Georgiou Washington, D.C.
20555
- Legal Affairs Secretary Governor's Office Elizabeth Apfelberg State Capitol 1415 Cozadero Sacramento, CA 95814 San Luis Obispo, CA 93401
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Mr. Gordon Silver.
Harry M. Willis Mrs. Sandra A. Silver Seymour & Willis 1760 Alisal Street 601 California St., Suite 2100 San Luis Obispo, CA 93401 San Francisco, CA 94108 Janice E. Kerr, Esq.
Joel R. Reynolds, Esq.
Lawrence Q. Garcia, Esq.
John R. Phillips, Esq.
350 McAllister Street Center for Law in the Public San Francisco, CA 94102 Interest 10951 West Pico Boulevard Mr. James 0. Schuyler Third Floor Nuclear Projects Engineer Los Angeles, CA 90064 Pacific Gas and Electric Company 77 Beale Street San Francisco, CA 94106 Arthur C. Gehr, Esq.
Snell & Wilmer Mark Gottlieb 3100 Valley Center California Energy Commission Phoenix, Arizona 95073 MS-18 1111 Howe Avenue Paul C. Valentine, Esq.
Sacramento, CA 95825 321 Lytton Avenue Palo Alto, CA 94302 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Bruce Norton, Esq.
Washington, D.C.
20555
- 3216 North 3rd Street Suite 202 Atomic Safety and Licensing Appeal Phoenix, Arizona 85102 Board U.S. Nuclear Regulatory Commission David S. Fleischaker, Esq.
Washington, D.C.
20555
- P.O. Box 1178 Oklahoma City, Oklahoma 73101 Docketing anc' Service Section U.S. Nuclear Regulatory Commission Richard B. Hubbard Washington, D.C.
20555
- MHB Technical Associates 1723 Hamilton Avenue - Suite K San Jose, CA 95125 John Marrs, Managing Editor San Luis Obispo County Telegram-Tribune 1321 Johnson Avenue P. O. Box 112 San Luis Obispo, CA 93406 Andrew Baldwin, Esq.
124 Spear Street San Francisco, CA 94105 W
Herbert H. Brown Kirkpatrick, Lockhart, Hill, oun e ff Christopher & Phillips 1900 M Street, N.W.
Washington, DC 20036
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