ML20087P839

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Answer in Opposition to Joint Intervenors 840320 Renewal of Application for Stay.Joint Intervenors Failed to Satisfy Any of Four Criteria of 10CFR2.788(e) & Motion Should Be Denied in Entirety.Certificate of Svc Encl
ML20087P839
Person / Time
Site: Diablo Canyon  Pacific Gas & Electric icon.png
Issue date: 04/06/1984
From: Lubbock D
PACIFIC GAS & ELECTRIC CO.
To:
NRC COMMISSION (OCM)
References
NUDOCS 8404090414
Download: ML20087P839 (10)
v • d • e


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4 DOCKETED USilRC l 1 UNITED STATES OF AMERICA '84 App _p A9 d0 2 NUCLEAR REGULATORY COMMISSION 3

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cRbt'ilCH M 4 BEFORE THE COMMISSION 5

In the Matter of )

6 ) Docket No. 50-275 PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-323 7 )

Diablo Canyon Nuclear Power Plant )

8 Units 1 and 2 )

)

9 10 11 ANSWER IN OPPOSITION TO JOINT INTERVENORS' RENEWAL OF APPLICATION FOR STAY 12 13 14 On March 20, 1984, Joint Intervenors filed with 15 the Com:nission and the Appeal Board a document styled 16 " Renewal of Application for Stay" seeking a stay of an 17 anticipated decision by this Commission authorizing criti-18 cality and low power testing for Diablo Canyon Nuclear Plant 19 Unit 1. On March 22, 1984 the ' Appeal Board certified the 20 Application to the commission pursuant to 10 CFR 2.718(i).

21 This filing constitutes Pacific Gas and Electric Company's 22 (PGandE's) opposition to Joint Intervenors' stay request.

23 I 24 BACKGROUND l

25 On October 31, 1983, Joint Intervenors filed an l l

26 application for an order to stay the Commission's then l i

N N bck O O

4 1

anticipated reinstat.ement of PGandE's suspended low power 2

operating license. 1/ They also filed a similar application 3 with the Commission. The stay request was denied by the j 4

Appeal Board in an oral ruling issued on November 8, 1983 5

during the reopened hearings on design quality assurance 6 issues. (Trans. D-1445-46).

7 On November 8, 1983 the Commission issued its 8

Order restoring PGandE's authority to load fuel and conduct 9 cold system testing (CLI-83-27, NRC (1983). On 10 December 9, 1983 the commission issued its order (CLI-83-32, 11 NRC ,

(1983) declining review of the Appeal Board 12 decision (ALAB-728, 17 NRC 777 (1983)) affirming the 13 Licensing Board decision (other than quality assurance) 14 granting PGandE's application for a license to load fuel and 15 16 1/ They asked specifically for an:

17

"[0]rder staying the effectiveness of the Atomic Safety and Licensing Board's 18

(" licensing board") July 17, 1981 Par-tial Initial Decision "PID") which 19 authorized the issuance o(f licenses to loal fuel and conduct low power tests at Diablo Canyon Nuclear Power Plant i 20 ("Diablo Canyon"), Units 1 and 2; 21 (2) the Appeal Board's May 18, 1983 decision offirming the. licensing board's 22 July 17, 1981 PID; 'thd (3) the Commis-sion's September 21, 1981 decision authorizing issuance of a low power 23 operating license for Diablo Canyon, Unit 1."

24 By letter of even date Joint Intervenors asked for 26 similar relief fron the Commission.

I conduct low power testing. Thereafter on January 16, 1984 2

the Commission issued an order denying Joint Intervenors' 3

October 31, 1983 request for a stay (CLI-84-1, NRC 4

(1984). The most recent order of 'ommission 5

(CLI-84-2) issued on January 25, 1994 & Vted PGandE 6

authority to conduct precriticality hot system testing.

7 On March 20, 1984 the Appeal Board issued its 8 decision in the reopened design quality assurance 9 hearings. y The Board found that PGandE's verification l 10 efforts " provide adequate confidence that the Unit I l 11 safety-related structures, systems, and components are I

12 designed to perform satisfactorily in service and that any 13 significant design deficiencies in that facility resulting 14 from defects in [PGandE's] design quality assurance program 15 have been remedied." The Appeal Board further concluded 16 that there was reasonable assurance that the facility can be 17 operated without endangering the health and safety of the 18 public.

Accordingly, the Appeal Board affirmed the license 19 authority previously granted to the Director of ERR in the 20 Licensing Board's August 31, 1982 initial decision 21 (LBP-82-70, 16 NRC 756, 854). In The Matter of Pacific Gas 22 and Electric Company (Diablo Canyon Nuclear Power Plant 23 Units 1 and 2) ALAB-763, NRC (1984) 24 25 y Those reopened hearings were conducted in Avila Beach, 26 California from October 31, 1983 to November 21, 1983.

t l

. l 1

II 2

LEGAL STANDARDS FOR A STAY 3

The four requirements which must be considered in 4 deciding a stay are set forth in 10 CFR 2.788(e). They are:

5

"(1) Whether the moving party has made a 6 strong showing that it is likely to prevail on the merits; 7

(2) Whether the party will be irreparably is granted; injured unless a stay 8

(3) Whether the granting of a stay 9

would harm other parties; and (4) Where the public Interest lies."

10 As we will show below, Joint Interveaors have not 11 made the requisite showing under these criteria to warrant 12 issuance of a stay.

13 A.

Joint Intervenors Have Not Shown A Like-14 lihood Of Prevailing In The Merits.

15 In their applications (October 31 and March 20) 16 Joint Intervenors raised several issues which they contend 17 would be decided in their favor. They centered on alleged 18 design and construction quality deficiencies at Diablo 19 Canyon. However, l these matters have been decided in 20 PGandE's favor by the Appeal Board in its decisions of 21 December 19, 1983 (CQA) and March 20, 1984 (DQA). In both 22 cases, the Appeal Board examined in detail the Joint 23 Intervenors claims and found them wanting. The issues of 24 the license suspension and amendment, and validity of the 25 license, were resolved in the Commission's November 8,1983  ;

26 Order restoring the low power license to load fuel and 1

. l I

b 1

conduct cold system testing CLI-83-27, supra, slip opinion 2 at 3-5. As for the issues of earthquake emergency planning 3

(for low power) and Class Nine Accid' int Analysis, thosc 4

issues were resolved when the Commission declined to review 5 the Appeal Board decision on low power testing. CLI-83-32, 6 NRC (1983).

7 In their March 20 Application, Joint Intervenors 8 cite recent allegations of past and present workers at 9

Diablo Canyon as additional evidence of design and 10 construction problems and assert that they must be resolved 11 prior to the Commission authorizing criticality and low 12 power testing. Suffice it to say, those matters have been 13 examined in great detail by the Staff and periodic reports 14 made by the Staff to the Commission. At a March 19, 1984 1 15 briefing of the Comaission, the Staff reported that no items 16 of significance had been discovered in their investigations 17 which would preclude criticality and low power testing.

18 These conclusions were documented in SER Supp. 22 which was 19 issued on the same day. SER Supp. 22 at E-14-15. In 20 addition, the Staff stated that they are continuing their 21 review of the additional Government Accountability. Project i

22 (GAP) allegations. Based on their review, the staff stated 1 j

23 that they appeared to be similar to those already reviewed l

24 and found not to be of any safety significance. In summary, 25 Joint Intervenors have not prevailed on any issues they have i

26 r

raised before the Boards and the Commission. Accordingly, l

i

1 they have failed to show any likelihood of prevailing on the 2 merits.

3 B. Joint Intervenors Have Not Shown Any Irreparable Injury If A Stay Is Not 4 Granted.

5 Joint Intervenors, relying on the affidavits of 6

Messers. Hubbard and Kaku, argue that when the plant goes 7 critical some components will become radioactive, and in 8

case of an accident during low power testing, there are 9 potential risks to the public. Hence, there is irreparable 10 harm to them if criticality and low power testing are 11 authorized.

12 Neither argument has merit. Taken to its logical 13 extreme, the radioactive contamination argument would 14 require the indefinite staying of any license pending 15 resolution of an appeal since the inevitable result of the 16 operation of a nuclear power plant is the existence of 17 radioactivity.

However, this is hardly a basis for delaying 18 action as Joint Intervenors request.

19 As for the argument regarding " fission product 20 hazard" from a hypothetical accident, the short answer is 21 that speculation about a nuclear accident does not, as a 22 matter of law, constitute the imminent, irreparable injury 23 required to justify a stay of a licensing decision. State 24 of New York v. NRC, 550 F.2d 745, 756-57 (2 Cir. 1977);

25 Virginia Sunshine Alliance v. Hendrie, 477 F.Supp. 68. 70 26 (D. D.C. 1979). Further, the issues of fission product l

_________.______..________i

1 inventory and the potential risk of accidents during low i

2 Power testing were expressly discussed and found to be j 3 acceptable by the Licensing Board. In the Matter of Pacific l

4 Gas and Electric C_o.o (Diablo Canyon Nuclear Plant, Units 1 5 and 2), LBP-81-21, 14 NRC 107, 123-126, 130. In any event, 6 since both the Appeal Board and the Commission have already

,7 considered these matters in their review of the case and 8 affirmed the Licensing Board, we see little justification 9 for further argument by the Joint Intervenors.

10 C. PGandE Will Be Harmed If A Stay Is Granted And The Public Interest Favors 11 Denial Of A Stay.

12 With the completion of appellate review and 13 Commission action, PGandE stands ready to commence l 14 criticality and low power testing operations. As the 15 Commission is no doubt aware, any delay in low power testing 16 impacts the commercial operation date of the facility. Each 17 day that passes causes the total cost of the facility to 18 increase and further delays the time when the plant can be 19 placed in commercial operation and relied upon to serve the 20 needs of PGandE's customers. Since any delay harms PGandE's 21 customers ultimately, the public interest lies in favor of 22 denying a stay.

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1 III 2 CONCLUSION 3 Joint Intervenors have failed to satisfy any of 4 .

four criteria of 10 CFR 2.788(e) which would warrant a stay 5 of PGandE's request for authorization to achieve criticality 6 and conduct low power testing of Diablo Canyon Nuclear Power 7 Plant Unit 1. Accordingly, the stay motion should be denied 8 in its entirety.

9 Respectfully submitted, 10 ROBERT OHLBACH PHILIP A. CRANE, JR.

11 RICHARD F. LOCKE DAN G. LUBBOCK 12 Pacific Gas and Electric Company 13 P.O. Box 7442 San Francisco, California 94120 14 (415) 781-4211 ARTHUR C. GEHR 15 Snell & Wilmer 3100 Valley Center 16 Phoenix, Arizona 85073 17 (602) 257-7288 BRUCE NORTON 18 Norton, Burke, Berry & French, P.C.

P.O. Box 10569 19 Phoenix, Arizona 85064 20 (602) 955-2446 Attorneys for 21 Pacific Gas and Electric Company 23 By ;I-7 Dan G. Q bock

~

24 DATED: April 6, 1984 25 26

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

) Of[fTfg PACIFIC GAS AND ELECTRIC COMPANY ) Docket No.. 0-275 Diablo Ca.7ycn Nuclear Power Plant, )

) Docket No. 0$J Units 1 and 2 p 49110

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CERTIFICATE OF SERVICE t The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:

Judge John F. Wolf Chairman Mrs. Sandra A. Silver Atomic Safety and Licensing Board 1760 Alisal Street US Nuclear Regulatory Commission San Luis Obispo CA 93401 Washington DC 20555 Mr. Gordon Silver Judge Glenn O. Bright 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission John Phillips, Esq.

Washington DC 20555 Joel Reynolds, Esq.

Judge Jerry R. Kline Eric Eavian Atomic Safety and Licensing Board Center for Law in the Public Interest US Nuclear Regulatory Commission 10951 W. Pico Blvd. - Suite 300 Los Angeles Washington DC CA 90064 20555 Mrs. Elizabeth Apfelberg David F. Fleischaker, Esq.

c/o Betsy Umhoffer P. O. Box 1178 1493 Southwood Oklahoma City OK 73101 San Luis Obispo CA 93401 Arthur C. Gehr, Esq. '

Janice E. Kerr, Esq. Snell &'Wilmer Public Utilities Commission 3100 Valley Bank Center State of California Phoenix AZ 85073 5246 State Building Bruce Norton, Esq.

350 McAllister Street Norton, Bitrke, Berry & French, P.C.

Scn Francisco CA 94102 P. O. Box 10569 Mrs. Raye Fleming Phoenix AZ 85064 1920 Mattie Road Chairman Shell Beach CA 93449 Atomic Safety _and Licensing Mr. Frederick Eiss19r Board Panel Scenic Shoreline Preservation US Nuclear Regulatory Commicsion-Conference, Inc. Washington DC 20555 -

4623 More Mesa prive Santa Barbara M 93105 i

r Chairman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Washington DC 20555 US Nuclear Regulatory Commission

, Washington DC 20555 US Nuclear Regulatory Commission Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission '

Section Washington DC 20555 Lawrence J. Chandler, Esq. Judge John H. Buck Henry J. McGurren Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555 1

Mr. Richard B. Hubbard

  • Commissioner Nunzio J. Palladino MHB Technical Associates Chairman 1723 Hamilton Avenue Suite K US Nuclear Regulatory Commission San Jose CA 95125 1717 H Street NW Washington DC 20555 Mr. Carl Neiberger Telegram Tribune
  • Commissioner Frederick M. Bernthal l P. O. Box 112 US Nuclear Regulatory Commission San Luis Obispo CA 93402 1717 H Street NW Washington DC 20555 Michael J. Strumwasser, Esq.

Susan L. Durbin, Esq.

  • Commissioner Victor Gilinsky Peter H. Kaufman, Esq. US Nuclear Regulatory Commission 3580 Wilshire Blvd. Suite 800 1717 H Street NW Los Angeles CA 90010 Washington DC 20555 Maurice Axelrad, Esq.
  • Commissioner Thomas M. Roberts US Nuclear Regulatory Commission 1717 H Street NW Washington DC 20555 Date: April 6, 1984

[ Dan 5. Lubbock

  • Via Sky Courier Network

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