ML20062M937

Request for Hearing on Util 820803 Application for Amend to License DPR-76,which Would Renew Low Power License Granted on 810921 & Suspended on 811119.Certificate of Svc Encl

ML20062M937
Person / Time
Site:	Diablo Canyon
Issue date:	08/17/1982
From:	Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OL, NUDOCS 8208200250
Download: ML20062M937 (14)

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NUCLEAR REGULATORY COMMISSION YM kf",.gp BEFORE THE COMMISSION'-

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In the Matter of )

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PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

)

JOINT INTERVENORS' REQUEST FOR HEARING Pursuant to S 189 (a) of the Atomic Energy Act, 42 U.S.C.

S 2239 (a) , the SAN LUIS OBISPO MOTHERS FOR PEACE, SCENIC SHORELINE PRESERVATION CONFERENCE, INC., EC' OLOGY ACTION CLUB, SANDRA SILVER, GORDON SILVER, ELIZABETH APFELBERG, and JOHN J.

FORSTER (" Joint Intervenors") hereby request a hearing with respect to the August 3, 1982 application of Pacific Gas and ,

Electric Company ("PGandE") for an amendment to the Diablo Canyon Nuclear Power Plant ("Diablo Canyon") Facility Operating License l

No. DPR-76.1/ In essence, PGandE seeks by the proposed amendment to renew the low power operating license granted by the Nuclear

- 1/ This written request formalizes the oral request for hearing communicated by telephone on August 11 by Joint Intervenors' counsel to the office of Edson Case (acting on behalf of the Director of Nuclear Reactor Regulation) and to Donald Hassell and Lawrence Chandler, NRC Staff counsel.

Such request was confirmed that same day by letter to Mr.

Hassell (attached hereto as Exhibit A).

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Regulatory Commission (" Commission") on September 21, 1981.2/ ,

Less than two months thereafter, on November 19, 1981, the -

Commission suspended the license in light of design and L

construction errors discovered at the facility which, the s

Commission acknowledged, "had [they] peenknowntothe Commission on or prior to September 22, 1981, Facility License No. DPR-76 would not have been issued."3/ The suspension is still in effect.

The Joint Intervenors oppose the proposed license amendment and are, therefore, requesting an adjudicatory .

hearing to contest PGandE's entitlement to, and the appropriateness of,'the proposed amendment. In so doing, they.

are not appealing to the Commission's discretion, but are asserting their statutory right to'a hearing prior to ,

disposition of the application by the Commission. This right ,

is guaranteed by. 3 189 (a) of the Atomic Energy Act, as amended r

which provides, in pertinent part, as follows:

In any proceeding under this chapter, for the -

granting, suspending, revoking, or amending of any license. . ., the Commission shall grant a hearing k

2/ Pacific Gas and Electric Company's ("PGandE")

proposed. license amendment is' attached hereto as Exhibit B. 3 described in the application, at 1, the "preposed change is te amend condition 2.K. of the license to change the-expiration date of the license from one year from the:date of issuance tG two years f tpm the date of issuance."

3/ CLI-81-30, at 3.

upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding. * * *4/

Section 189(a) has repeatedly been held to make mandatory an adjudicatory hearing prior to the issuance, revocation, suspension, or amendment of an operating license once such a hearing has been requested by an interested person. Brooks

v. U.S. Atomic Energy Commission, 476 F.2d 924, 926 (D .C .Cir .

1973) (per curiam); Westinghouse Electric Corp. v. U.S. Nuclea Regulatory Commision, 598 F.2d 759, 772-773 (3d Cir. 1979);

Sholly v. U.S. Nuclear Regulatory Commission, 651 F.780 (D.C.Cir. 1980) (oer curiam), cert. granted, U.S. , 10 S.Ct. 3004 (1981). The legislative history of this section indicates that "it was Congress' intent to lessen the mandator hearing requirement only when the~re was no request for a hearing." Brooks v. U.S. Atomic Energy Commission, 476 F.2d a 927.

The Joint Intervenors have been parties to this proceedii for almost a decade and, as such, they are unquestionably persons "whose interest may be affected by the proceeding. . . ." 42 U.S.C. S 2239 (a) . They have requested hearing with respect to a proposed license amendment having clear safety significance -- e.g., renewal of a nuclear facility operating license -- and they have done so in a timely fashion. Accordingly, their request must be granted.

S/ 42 U.S.C. 5 2239(a); see also 10 C.F.R. SS 2.104, 2.105, 50.91.

PGandE's assertion in its application that the proposed amendment is " administrative in nature" and has "no safety or ,

environmental significance" is a flagrant mischaracterization of the amendment's effect. In fact, PGandE is seeking to double the effective term of a suspended license which the Commission has explicitly acknowledged would not have been granted in the first place had the errors disclosed through last November been revealed prior to its issuance.1/ Since that time, over 200 additional serious design and construction errors at the plant have been revealed, and even the auditor selected by PGandE to review its quality assurance / quality control program has concluded that the program was deficient in

" policy, procedures, and implementation."5/ Within the past month, the NRC Staff issued a detailed Brookhaven National Laboratory report which establishes significant flaws in the fundamental design basis for Diablo Canyon, flaws so pervasive

! that PGandE has conceded that reverification of the entire seismic design of the facility is necessary.2/

E/ Indeed, in an October 9, 1981 meeting with PGandE, NRR Director Denton observed that the low power license would not ha.ve been issued had the design errors then discovered been known to the Staff prior to issuance of the license. Meeting Transcript, at 117 (October 9,1981) .

5/ Quality Assurance Review and Audit Report, Phase I (March 8, 19,8 2) .

2/ Independent Seismic Analysis of the Diablo Canyon Unit 1 Containment Annulus Structure and Selected Piping Systems (July 1,1982); Meeting Transcript (August 15, 1982).

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In light of such a record, PGandE's proposed license  :

r amendment is far more than a mere administrative detail. On the contrary, it is an unprecedented attempt to obtain renewal of a license which PGandE never should have received in the  ;

first instance, for a facility designed and constructed in violation of the Commission's basic sa'fety regulations, and in complete disregard of a continuing series of revelations which unquestionably undermine the reasonable assurance of safety and regulatory compliance which is the mandatory prerequisite to licensing of a nuclear facility. See 42 U.S.C. S 2233 (d); 10 C.F.R. SS 50.40, 50.57 (a) . Thus, the proposed amendment can be considered " administrative" and without " safety or environmental significance" only by ignoring the basic Commission standards promulgated to assure,that public safety and the environment will be protected. Under such circumstances, the opportunity to challenge the pr6 posed amendment through an adjudicatory hearing is critical.

Even were the proposed amendment not.a matter of safety significance, however, the law is well settled that the hearing right guaranteed by S 189 (a) applies nonetheless. First established in Brooks v. U.S. Atomic Energy Commission, supra, this principle was recently reaffirmed.by the U.S._ Court of-Appeals for the D.C. Circuit in Sholly v. U.S. Nuclear Regulatory Commission, supra, where the court held unlawful- thG NRC policy o'f making immediately effective license-amendments.

without holding a hearing, evenfthough petitioners request onec whenever the NRC finds that the amendment involves "no.

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7 significant hazards consideration."8/ CitingBrooks,thecourt'f, J concluded that the doctrine of stare decisis compelled the conclusion that a determination of "no significant hazards consideration" did not obviate the hearing right and, moreover, !

that the legislative history of S 189 (a) left no ambiguity as  !

! i to this result. The court explained the law as follows: [

[W]e are confident that Brooks was properly  !

, decided and that it dictates the construction

, that must be attached to the last sentence of  ;

l section 189(a). Because the NRC's finding of  !

"no significant hazards consideration" did not l entitle the Commission to dispense with a s requested-hearing prior to issuance of the -

[ license amendment], we hold that its failure to -

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The Joint Intervenors.are entitle'd to an adjudicatory .

i hearing prior to a decision by the Commission regarding ,

1 PGandE's August 3rd application for an amendment'to the.

Diablo Canyon low power operating license. Under'the circumstances of this~ proceeding, renewal of the suspended low power license.would make a mock'ery of.the Commission's .

l licensing.standar'ds.

f. For the-reasons. stated above and consistent with.th'e terms of' S 189 (a) of the Atomic Energy Act, the Joi.nt Intervenors respectfully. request'that-an adjudi'catory h

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hearing be held'with respect to PGandE's license' amendment- l l

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- At issue lwas an amendment to'the operatingLlicense.

i sfor Unit 2 of the Three Mile Island Nuclear Power--Plant -

( authorizing 'ther venting of hydrogen gas -f rom the containment

( building into the atmosphere-as'part of the decontamination l

process.  ;

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application and, specifically, that such application be (1) referred to the responsible NRC adjudicatory panel; (2) set for prehearing conference to establish a schedule for hearing on the application; and (3) noticed in the Federal Register for hearing no less than 30 days after the date of publication.

DATED: August 17, 1982 Respectfully submitted, JOEL R. REYNOLDS, ESQ.

JOHN R. PHILLIPS, ESQ.

Center for Law in the Public Interest 10951 West'Pico Boulevard Los Angeles, California 90064 DAVID S. FLEISCHAKER, ESQ.

P.O. Box 1178 Oklahoma City, Oklahoma 73101 By 4 _. _

d R. REYNOLDS Attor s for for Joint Intervenors SAN LUIS OBISPO MOTHERS FOR PEACE ^

SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

j ECOLOGY ACTION CLUB SANDRA SILVER GORDON SILVER ELIZABETH APFELBERG JOHN J. FORSTER l

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• 3.WCf .tLLt.wloW Donald F. Hassell, Esq.

Office of the Executive Legal Director BETH 042 U.S. Nuclear Regulatory Commission _

Washington, D.C. -20555 Re: In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Nos. 50-275 O.L. and 50-323 0.L.

Dear Mr. Hassell:

This letter is to confirm our telephone conversation of this morning in which I requested, on behalf of the Joint Intervenors to the above-entitled p,oceeding, r a hearing with respect to the August 3, 1982 application of Pacific Gas ~and. Electric Company for an amendment to the Diablo Canyon Nuclear Power Plant Facility Operating License No. DPR-76. . This request is based on S 189 (a) of the Atomic Energy Act,'as amended.

The Joint Intervenors oppose the proposed amendment.

As I mentioned, we received notice of the amendment application only yesterday (see attached letter), and, in order to ensure the timeliness of our hearing request,-it has been made by telephone to you and to the office or Edson Case, acting on behalf of Harold Denton, Director of the Office of Nuclear Reactor Regulation. A formal' written request for hearing will be submitted within the next ten days.

Very truly yours, op1 Reynolds Munsel to the Joint Intervenors JR:av cc: Diablo Canyon Service List L -

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. PACIFIC G AS AND E_LECTRIC COMPANY

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EX11IBIT B 1

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._ 1 August 3, 1982 Kr. Harold R. Denton, Director.

Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Com=icsion Washington, DC 20555 Re: Docket No. 50-275, OL-DPR-76 Diablo Canyon Unit 1 License Amendment Request 82-05 Extension of Term of Facility License

Dear Mr. Denton:

N Enclosed are three (3) signed and thirty-seven (37) confor=ed.ccpies of an application for an amendment to .

Facility Operating License No. DPR-76.

Pursuant to 10.CFR 170.22, PGandE has reviewed the proposed changes and determined that a Class II amendment fee

. is applicable as the amendment is administrative in nature and has no safety or environmental significance. Enclosed is a check in the -~^"-6 a# $1,200 in. payment of the required Class II amendment fee. .

Kindly acknowledge receipt of this material on the enclosed copy of this letter and return it in the enclosed addressed envelope.

Very truly yours, Philip A. Crane, Jr.

bec w/ encl: Service List

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-275

)

(Diablo Canyon Nuclear Power ) Facility Operating

)

Plant, Unit No. 1) ) License No. DPR-76 I

As provided in 10 CFR 50.90, Pacific Gas and Electric Company (PGandE) hereby proposes to amend its Diablo Canyon Power P. ant (DCPP) Facility Operating License DPR-76 (License).

The proposed change is to amend Condition 2.K. of the License to change the expiration date of the License from one

~

year from the date of issuance to two years from the date of issuance. ,

On September 22, 1981 the NRC. issued Facility Operati,ng License DPR-76 for_a term of one year. This License authorized -

operation of the Diablo Canyon Power Plant, Unit 1 at up to five percent of rated power. On November 19, 1981, the l

Commission suspended portion.s of the license (CLI- 81-3 0) pending completion of an Independent Design Verification Program (IDVP). ~

It is anticipated that the work associated with the IDVP will extend beyond the present expiration date of the license.

The proposed change is administrative in nature, and has l .

i no safety or environmental significance.

1 l

Subscribed to in San Francisco, California, this~3rd i day of August, 1982.

Respectfully submitted, Pacific Gas and Electric Company

-)

By /s/ J. O. Schuyler J. O. Schuyler Vice President Nuclear Power Generation Subscribed and sworn to before me.

this~3rd day of August, 1982.

/s/ Nancy J. Lemaster Nancy J. Lemaster, Notary Public in and for the City and County of San Francisco, State of California My Commission expires April 14, 1986.

Robert Ohlbach Philip A. Crane, Jr..

Richard F. Locke ,

Attorneys for Pacific Gas-and Electric Cc=pany By '/ s/ Philip A. Crane, Jr.

Philip A. Crane,-Jr.

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-;; i. . - usHRC UNITED STATES OF AMERICA #

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NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 0F SEcRETAEY

hitNG & SERV BRANCH,

)

In the Matter of )

)

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 0.L.

)

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

)

CERTIFICATE OF SERVICE I hereby certify that on this 17th day of August, 1982, I have served copies of the foregoing JOINT I,NTERVENORS' REQUEST FOR HEARING, mailing them through the U.S. mails, first class, postage prepaid. .

Nunzio Palladino, James Asselstine, Chairman Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commissioner Washington, D.C. 20555 Washington, D.C. 20555 Victor Gilinsky, John Ahearne, Commissioner U.S. Nuclear Regulatory Commissioner U.S. Nuclear Regulatory Commissioner Washington, D.C. 20555 Commission Washington, D.C. 20555 Thomas Roberts, Samuel J. Chilk, Secretary Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission ~ Commissioner Washington, D.C.- 20555 Washington, D.C. 20555 l

O t

Mr. Harold Denton Docket & Service Branch ,

Director of Nuclear Office of the Secretary Reactor Regulation U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 ,

Washington, D.C. 20555 Bradley Jones," Esq.

Leonard Bickwit, Esq. Donald F. Hassell, Esq.

Office of General Counsel _.

Lawrence Chandler, Esq.

U.S. Nuclear Regulatory Office of the Executive Legal ,,

Commission Director - BETH 042 Washington, D.C. 20555 U.Sr!Nuclear Regulatory Commission Thomas S. Moore, Chairman Washington, D.C. 20555 Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Herbert Brown, Esq.

Commission _

Lawrence Coe Lanpher, Esq.

Washington, D.C. 2055 Alan Dynner, Esq.

Hill, Christopher &

Dr. W. Reed Johnson Phillips Atomic Safety & Licensing 1900 M. Street, N.W.

Appeal Board Washington, D.C. 20036 U.S. Nuclear Regulatory Commission Byron Georgiou, Esq.

Washington, D.C. 20555 Legal Affairs Secretary to The Governor Dr. John H. Buck State Capitol Building Atomic SaCety & Licensing Sacramento, CA 95814 Appeal Board U.S. Nuclear Regulatory Janice E. Kerr, Esq.

Commission Lawrence Q. Garcia, Esq.

Washington, D.C.. 20555 J. Calvin Simpton, Esq.

California Public Utilities Admin. Judge John F. Wolf, Commission Chairman 5246 State Building Atomic Safety & Licensing 350 McAllister Street Board San Francisco, CA 94102 U.S. Nuclear Regulatory Commission ~ Mr. Fredrick Eissler Washington, D.C. 20555 Scenic Shoreline Preservation Conference, Inc.

Glenn O. Bright 4623 More Mesa Drive Atomic Safety & Licensing Santa Barbara, CA 93105 Board U.S. Nuclear Regulatory Malcolm H. Furbush, Esq.

Commission Vice President & General Counsel Washington, D.C. 20555 Philip A. Crane, Esq.

Dr. Jerry R. Kline Pacific Gas & Electric Compan}

Atomic Safety & Licensing Post Office Box 7442 Board San Francisco, CA 94106 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

David S. Fleischaker Post Office Box 1178 Oklahoma City, OK 73101 MHB Technical Associates 1723 Hamilton Avenue Suite K San Jose, CA 95725 Arthur C. Gehr, Esq.

Snell & Wilmer 3100 Valley Center Phoenix, AZ 85073 Virginia and Gordon Bruno Pecho Ranch Post Office Box 6289 Los Osos, CA 93402 Sandra and Gordon Silver J 1760 Alisal Street San Luis Obispo, CA 93401 Bruce Norton, Esq.

3216 N. Third Street Suite 202 Phoenix, AZ 85012 Nancy Culver

• 192 Luneta San Luis Obispo, CA 93401 .

, l Carl Neiburger '

Telegram Tribune Post Office Box ll2 San Luis Obispo, CA' 93402

'P h C.

AMANDA VARONA m