ML20069G444

Supplemental Brief Per Aslab 820902 Order on Mootness of Low Power Decision.Issues of Emergency Preparedness & Impact of Earthquakes on Emergency Planning Not Moot.Certificate of Svc Encl

ML20069G444
Person / Time
Site:	Diablo Canyon
Issue date:	09/24/1982
From:	Brown H CALIFORNIA, STATE OF, KIRKPATRICK & LOCKHART
To:
References
NUDOCS 8209290098
Download: ML20069G444 (7)

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'82 SB' 28 A!0 :46 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ry .. 7 g .

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_.a m 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 ) go - ?>D

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(Diablo Canyon Nuclear Power Station, )

Units 1 and 2) )

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SUPPLEMENTAL BRIEF OF GOVERNOR BROWN PURSUANT TO BOARD ORDER OF SEPTEMBER 2, 1982 Pursuant to the Appeal Board's Order of September 2, 1982, Governor Brown hereby submits views as to whether any issues presented by the pending appeals from the Licensing Board's low power decision may be moot.

1. Of the issues briefed and submitted by the Governor on September 2, 1981, the only area in which the mootness question would seem germane is the Licensing Board's finding that adequate emergency preparedness exists to authorize low power operation of Diablo Canyon. However, in the circumstances of the Commission's issuance and then suspension of PG&E's low power license, there is no basis for finding the Governor's appeal of any emergency l preparedness issues moot.

The Licensing Board's emergency preparedness findings have l not lost their practical significance. The low power license F209290098 820924 DR ADOCK 05000275 PDR

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was issued on the basis of those findings, and the license is pending before the United States Court of Appeals for the D.C.

Circuit in part on the Covernor's petition for review of those findings. Had PG&E's license not been suspended, the present situation would not have arisen, because the low power emergency preparedness issue would have been ruled on by the Court of

' Appeals. Either the case would have been remanded to the NRC, or the issuance of the low power license would have been judicially approved. However, here the suspension of the low power license has created the novel situation of the full power license being substantially approved while low power operation has been barred for reasons that also preclude full power operation.

The result of this novel situation prevents mootness of the Governor's low power appeal, which still represents a continuing controversy between the parties. The Governor has contended in his brief to this Board dated September 2, 1981, that the Licensing Board unlawfully issued a low power license to FG&E.

The foundation to support that license includes the Licensing Board's findings on emergency preparedness that the Governor continues to contest. From the standpoint of the Governor, therefore, the emergency preparedness findings in the low power decision have not lost their practical significance. Indeed, the Governor intends that such findings were made on the basis of unfounded, arbitrary, and capricious actions of the Licensing Board that remain in controversy.

< , . Nevertheless, the fact is that the full power decision exists and the record it embraces is pertinent to the state of emergency preparedness at Diablo Canyon. It may, therefore, be appropriate for the Appeal Board to consider the full power record in tandem with the low power record and to render a decision which considers the appeals taken from both.

2. The Governor emphasizes -that the issue concerning the Licensing Board's failure to consider the impacts of earthquakes on emergency planning and preparedness during low power operation is unaffected by the Licensing Board's full power decision.

3. The Governor notes that the Commission has not acted on the full power decision pursuant to 10 C.F.R. S2.764. Therefore, the low power license is the only license that has been given effectiveness, and the findings which support the license have legal vitality beyond that of the findings in the full power decision. This, at the least, suggests that the Appeal Board consider the issue raised in the Board's September 2 Order to be premature. Moreover, given the proliferation of errors at Diablo Canyon and the expanding disclosures of the current I

i independent verification program, there would be no good reason for the Commission now to consider the full power decision under Section 2.764.

Respectfully submitted, i

Byron S. Georgiou Legal Affairs Secretary Governor's Office State Capitol l Sacramento, California 95814 l

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. . . ~4-Herbert H. Brown Lawrence Coe Lanpher Alan Rcy Dynner KIRKPATRICK , LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.

Washington, D.C. 20036 September 24, 1982 - Attorneys for Governor Brown of the State of California l

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a . .

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 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 copies of the " SUPPLEMENTAL BRIEF OF GOVERNOR BROWN PURSUANT TO BOARD ORDER OF SEPTEMBER 2, 1982" have been served to the following by U.S. Mail, first class, this 24th day of September, 1982, except as otherwise noted.

Mr. Thomas Moore, Chairman

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. W. Reed Johnson

• Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. John H. Buck

• Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Chairman Atomic Safety and Licensing Appeal Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Judge John F. Wolf, Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C. 20555

Judge Glenn O. Bright Atomic Safety and Licensing Board U. S. Nuclear Regulatory Cgnmission Washington, D. C. 20555 Judge Jerry R. Kline Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D. C. 20555 George E. Johnson, Es q .*

Donald F. Hassell, 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 Cozadero San Luis Obispo, CA 93401 Janice E. Kerr, Esq.

Public Utilities Commission 5246 State Building 350 McAllister Street San Francisco, CA 94102 Mrs. Raye Fleming 1920 Mattie Road Shell Beach, CA 93449 Mr. Frederick Eissler Scenic Shoreline Preservation Conference, Inc.

4623 More Mesa Drive Santa Barbara, CA 93105 Mr. Gordon Silver Mrs. Sandra A. Silver 1760 Alisal Street San Luis Obispo, CA 93401 Joel R. Reynolds, Esq . *

• John Phillips, Esq.

Center for Law in the Public Interest 10951 West Pico~ Boulevard Third Floor Los Angeles, CA 90064

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Bruce Norton, Esq. *

• Norton, Burke, Berry & Junck 3216 North Third Street - Suite 300 Phoenix, Arizona 85012 Philip A. Crane, Jr., Esq.

Richard F. Locke, Esq.

F. Ronald Laupheimer, Esq.

Pacific Gas and Electric Company 1050 17th Street, N.W. -

Suite 1180 Washington, D. C. 20036 David S. Fleischaker, 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, CA 95125 Mr. Carl Neiberger Telegram Tribune P. O. Box 112 San Luis Obispo, CA 93402 Byron S. Georgiou, Esq.

Legal Affairs Secretary Governor's Office State Capitol Sacramento, CA 95814

• • F d r Express f [, ] 1 KIRKPATRICK, LOCKHART, HILL, CHRISTOPhBR & PHILLIPS 1900 M Street, N.W.

! Washington, D. C. 20036 l

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