ML20062M294

Request for Directed Certification Re Issue of Validity of Preliminary FEMA Findings.Emergency Planning Regulations Require Hearing on FEMA Agency Finding,Not Preliminary Staff Rept.Certificate of Svc Encl

ML20062M294
Person / Time
Site:	Diablo Canyon
Issue date:	12/09/1981
From:	Fleischaker D JOINT INTERVENORS - DIABLO CANYON
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8112170140
Download: ML20062M294 (5)

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-U1NRC UNITED STATES.OF' AMERICA NUCLEAR-REGULATORY COMMISSION Cr ~ SECRETARY nF i;,G & SERVICE BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

In the Matter of' ) 4 [U, j

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.'!b PACIFIC GAS & ELECTRIC COMPANY ) Docket No. 50 Y/.

(Diablo Canyon Nuclear ) Docket No. 5 - 23 M Power Plant, Units 1 & 2) ) 7- g 1

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REQUEST FOR DIRECTED CERTIFICATION  %/s w..

During a recent telephone confarence call, including counsel for the parties, Judge Bright and Judge Wolf, argument was heard on .whether the FEMA finding which is entitled to presumtive validity and upon which hearings are held under the NRC's regulations, is the final agency finding or some preliminary FEMA staff report. NRC staff counsel argues that a p-eliminary FEMA staff report satisfies the NRC regulations and that hearings can go forward when that document is received. To support its position, the NRC staff cites an inter agency memorandum - of _

understanding between the NRC staff and the FEMA staff.

The Joint Intervenors disagree with the NRC staff. The language of the NRC regulations is unambiguous. It calle for an pso3 s

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agency finding --

not. some preliminary staff report.

Furthermore, to proceed on a preliminary report --.which has not had the benefit.offpublic input and has not been finally approved

.by the agency - suggests - that ' the Commission did not wish to benefit from FEMA's full. deliberative process and final decision.

There is nothing in the regulations to support'that view.

Finally, the fact that the NRC staff and FEMA . staf f have agreed in a memorandum of understanding that something less than the. FEMA agency finding satisfies the Commission's regulations is not controlling. There is no evidence that the Commission itself-has has adopted or approved the staff's modification of the.

Commission's regulations.**

We believe that the Licensing Board's.should rule that~the Commission's emergency planning regulations require hearings on a-

• • Commission approval of the staff's position cannot be fairly implied from the fact that the inter agency memorandum was contained in some docuaent forwarded to Congress. Given the bulk of material forwarded by the Commission to Congress, there is no assurance that the Commissioner's were even aware that the staff had modified the regulatory requirement.

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FEMA agency. finding, not a -prelimnary FEMA staff report.- In.the

-alternative , '.we . ' request l the . Board., to ' certify to ithe . Commission a question on th'is matter.

Respectfullyfsubmitted, i

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Ddfid S.-Fleischaker. _f 1 Joint Intervenors Post Office. Box'll78 -

oklahoma-City, Oklahoma .73101 (405)235-8444 9

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• y UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of: )

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PACIFIC GAS & ELECTRIC COMPANY) DOCKET Nos. 50-275 0.L.

(Diablo Canyon Nuclear ) 50-323 0.L.

Power Plant, Units 1 & 2) )

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'l CERTIFICATE OF SERVICE I hereby certify that on this 9th day of December, 1981, I have served copies of the foregoing Request for Directed Certification and accompanying documents, mailing them through the U.S. Mails, first-class, postage prepaid, and by Express Mail:

John F. Wolf Dr. Glenn O. Bright Chairman Atomic Safety & Licensing Atomic Safety & Licensing Board Board Panel 3409 Shepherd Street U.S. Nuclear Regulatory Chevy Chase, Maryland 20015 Commission Washington, D.C. 20555 Dr. Jerry Kline Atomic Safety & Licensing Docket & Service Section Board Panel Office of the Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 William J. Olmstead, Esq. Mrs. Elizabeth Apfelberg Edward G. Ketchen, Esq. c/o Nancy Culver Bradley Jones, Esq. 192 Luneta Drive Office of the Executive L; gal San Luis Obispo, CA 93401 Director - BETH 042 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 S t_ m + + + -

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g: _ O Mr. Frederick Eissler Malcolm H. Furbush, Esq.

Scenic Shoreline Preservation Vice President and Conference, Inc. General Counsel 4623 More Mesa Drive Philip A. Crane, Esq.

Santa Barbara, CA 93105 Douglas A. Oglesby Pacific Gas & Electric Company Sandra A. Silver Room 3135r 1760 Alisal Street 77 Beale Street, PO Box 7442 San Luis Obispo, CA 93401 San Francisco, CA 94120 Gordon Silver Arthur C. Gehr, Esq.

1760 Alisal Street Snell & Wilmer San Luis Obispo, CA 93401 3100 Valley Center Phoenix, Arizona 85073 Joel Reynolds, Esq.

John Phillips, Esq. MHB Technical Associates Center for Law in the Public 1723 Hamilton Avenue Interest Suite K 10203 Santa Monica Boulevard San Jose, CA 95125 Fifth Floor Los Angeles, CA 90067 Carl Neiburger Telegram Tribune Bruce Norton, Esq. P.O. Box 112 3216 N. Third Street San Luis Obispo, CA 93402 Suite 202 Phoenix, Arizona 85012 Byron S. Georgiou Legal Affairs Secretary Janice K. Kerr, Esq. Governor's Office Lawrence Q. Garcia, Esq. State Capitol California Public Utilities Sacramento, California 95814 Commission 5246 State Building Herbert H. Brown, Esq.

350 McAllister Street Lawrence Coe Lanpher, Esq.

San Francisco, CA 94102 Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.

Washington, D.C. 20036 DA ID S. FLEIUCHAKER 7 Post Oftice Box 1178 Oklahoma City, Oklahoma 73101 (405)235-8444

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