ML20094G639

Reply Supporting Aslab 840801 Order Establishing Jurisdiction of Aslab to Review Joint Intervenor 840716 Motion to Reopen Record on Seismic Issues.Certificate of Svc Encl

ML20094G639
Person / Time
Site:	Diablo Canyon
Issue date:	08/09/1984
From:	Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
OL, NUDOCS 8408130389
Download: ML20094G639 (8)

Text

!906-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DCIJUE0 BEFORE THE ATOMIC SAFETY & LICENSING APPEAL BOARO'70 3A A6010 A10:23

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In the Matter of )  ?(c'hi;- .-

) ~ ~ - g _ _g PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50~-274:0.L.

) 50-323 O.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

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• t'n0 D. D L . :' gg JOINT INTERVENORS ' REPLY REGARDING JURISDICTION OF THE APPEAL BOARD TO CONSIDER MOTION TO REOPEN THE RECORD ON SEISMIC ISSUES 4

Pursuant to the Appeal Board's August 1, 1984 Order, the Joint Intervenors' hereby reply regarding theijurisdiction of this Board to review their July 16, 1984 Motion to Reopen the Record on Seismic Issues. In their responses, PGandE and the NRC Staff contend that this Board is without jurisdiction to consider the motion in light of its prior decision in ALAB-644 and the Commission's subsequent refusal to review that decision. In so contending, the NRC Staf f and PGandE rely on Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAB-530, 9 NRC 261, 262- (1979) , Pubiic Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-513, 8 NRC 694, 695 (1978), and Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2)

ALAB-551, 9 NRC 704, 707-09 (1979).

CC:13f21 8408130389 840009 \ $ 03 PDR ADOCK 05000275 o PDR

For several reasons, the Joint Intervenors disagree.

First, while these authorities indicate that the jurisdiction of

'the Commission's hearing boards ceases after final agency action, no such finality exists under the circumstances of this case. In order for finality to attach to an agency decision, no appeal can be pending. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), (Seabrook Station, Units 1 and 2) ,

ALAB-513, 8 NRC 694, 695 (1978). In the instant case, such an appeal is pending, filed by the Governor of California directly from the Commission's decision not to review ALAB-644. This appeal has not been dismissed and, accordingly, jurisdiction over seismic issues continues to rest with the Board.

Second, although the Joint Intervenors have not pursued the seismic issues directly in the context of the low power operating license appeal, such issues may be included in appeal of the Commission's imminent full power licensing. decision. In the meantime -- and at the time the Motion to Reopen was filed -- the full power licensing proceeding has continued, both before this Board and the Commission. Until the full power license is issued, the proceeding is not final and, consequently, this Board's jurisdiction continues. See Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 708 (1979) ,once an appeal board has wholly terminated its review.of an initial proceeding its jurisdiction comes to an end)

(emphasis supplied); see also 10 C.F.R. S 2.717 ("[t]he presiding officer's jurisdiction in each proceeding will terminate upon the expiration of the period within which the Commission may direct that the record be certified to it for final decision . . . ")

CC:13421 - )

(emphasis supplied) .

Third, even if finality were found to exist as to the seismic issues, the new information submitted by the Joint Intervenors bears such a close nexus to issues currently before this Board that the asserted jurisdictional bar is inapplicable.

In Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), 9 NRC at 707, the Board found that

"[w]here ... . finality has attached to some but not all issues, appeal board jurisdiction to entertain new matters is dependent upon the existence of a " reasonable nexus" between those matters and the issues remaining before the board." This Board is currently reviewing two issues directly related to seismic safety: (1) seismic impacts on emergency preparedness, and (2) special circumstances -- e.g., the presence of an active earthquake fault adjacent to the Diablo Canyon site -- justifying consideration of a Class Nine accident under NEPA. The resolution '

of either or both of these issues could be affected by the new evidence on seismic effects submitted by the Joint Intervenors in their recent Motion to Reopen. Thus, while these issues are

~

pending, the required " reasonable nexus" exists and the Board has jurisdiction to consider the motion. Cf. In the Matter of Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), ALAB-766, CCH Nuclear Regulation Reports 1 30, 849

-(April 2,1984) (no nexus between issue of adequacy of _ emergency planning pamphlet and issues related to management capability);

Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978) (no nexus between issues of i

i CC:13f21  !

i l

financial qualifications of applicants and siting).

Finally, this Board's familiarity with the issues is relevant to a determination of the jurisdictional issue. In Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755 (1983), the Appeal Board was confronted with the question of whether it had jurisdiction over a motion to reopen. In resolving this issue, the Board turned to principles of " common sense and the realities of litigation" to arrive at the result that it was the licensing board that should decide the issue. The Appeal Board found: -

The significance of familiarity with the case in ruling on a motion to reopen cannot be overstated. For one thing, it means that the motion will likely be ruled upon more quickly.

Further, one of the criteria determining the disposition of such motions is whether a different result might have been reached if the new materials had been considered previcusly. Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant,.. Units 1 and 2) , ALAB-598,11 NRC 876, 879 :(1980) .

Generally, the initial decisionmaker'is in the best position to determine if that is the case.

In the instant case, the Appeal Board clearly has the greatest familiarity with the seismic issues, and, consequently, its assertion of jurisdiction is proper. Particularly in light of the

, importance of the new information to protection of the public health and safety, review by this Board is fully consistent with the NRC's obligation to reopen the record to consider significant new information. See e.g., Hudson River Fisherman's Assocation v.

Federal Power Commission, 498 F.2d 827, 832-33 (2d Cir.1974);

CC:13#21 ,

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Brennan v. Occupational Safety and Health Review Commission, 492 F.2d 1027, 1031-32 (2d Cir. 1974); WMOZ, Inc. v. Federal Communications Commission, 120 U.S. App. D.C. 103, 344 F.2d 197 (1965); see also Michigan Consolidated Gas Co. v. Federal Power Commission, 283 F.2d 204, 226 (D.C.Cir.), cert. denied, 364 U.S.

913, 81 S.Ct. 276 (1960).

Accordingly, the Joint Intervenors respectfully submit that this Board has jurisdiction and that their Motion to Reopen should be granted.

Dated: August 9, 1984 Respectfully submitted, JOEL R. REYNOLDS, ESQ.

ETHAN P. SCHULMAN, ESQ.

ERIC HAVIAN, ESQ.

JOHN R. PHILLIPS, ESO.

Center for Law in the Public Interest 10951 W. Pico Boulevard Los Angeles, CA 90064 (213) 470-3000 DAVID S. FLEISCHAKER, ESQ.

P.O. Box 1178 Oklahoma City, OK 73101 i

By )

DpLR. REYkdLDS Attorneys for Joint Intervenors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

ECOLOGY ACTION CLUB SANDRA SILVER GORDON SILVER ELIZABETH APFELBERG JOHN J. FORSTER CC:13621 >

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 O.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

)

CERTIFICATE OF SERVICE I hereby certify that on this 9th day of August, 1984, I have served copies of the foregoing JOINT INTERVENORS' REPLY REGARDING JURISDICTION OF THE APPEAL BOARD TO CONSIDER MOTION TO l REOPEN THE RECORD ON SEISMIC ISSUES, mailing them through the U.S. mails, first class, postage prepaid, to the attached list.

W C OC AMANDA VARONA 1

4 . , , .- - - - - - - - - - - - - - - . - - ,

SERVICE LIST Nunzio Palladino, Chairman James Asselstine, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Lando W. Zech, Jr. Commissioner Frederick Bernthal, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission- Commission Washington, D.C. 20555 Washington, D.C. 20555 Thomas Roberts, Commissioner Samuel J. Chilk, Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Thomas S. Moore, Chairman *Dr. W. Reed Johnson Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 f

i

• Dr. John H. Buck

• Docket and Service Branch

'~. Atomic Safety & Licensing Office of the Secretary Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

~

20555 Washington, D.C. 20555 Lawrence Chandler, Esq.

Office of the Executive Legal Director-- BETH 042 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 t

David S. Fleischaker, Esq.

l Post Office Box 1178 l

Oklahoma City, OK 73101 i

Bruce Norton, Esq.

Norton, Burke, Berry & French l P.O. Box 10569 Phoenix, AZ 85016 Malcolm H, Furbush, Esq.

Vice President & General Counsel l Philip A. Crane, Esq.

Pacific Gas and Electric Company P.O. Box 7442 San Francisco, CA 94120

John Van de Kamp, Attorney General Andrea Sheridan Ordin, Chief Attorney General Michael J. Strumwasser, Special Counsel to the Attorney General Office of the Attorney General State of California 3580 Wilshire Boulevard, Suite 800 Los Angeles, CA 90010 Richard B. Hubbard MHB Technical Associates 1723 Hamilton Avenue Suite K San Jose, CA 95125

. Virginia and Gordon Bruno Pecho Ranch Post Office Box 6289 Los Osos, CA 93402 -

Sandra and Gordon Silver 1760 Alisal Street San Luis Obispo, CA 93401 Carl Neiburger Telegram Tribune Post Office Box 112 San Luis Obispo, CA 93402 Tom Devine ~

Government Accountability Project 1901 Que Street, N.W.

Washington,.D.C. 20009 Eric Havian,.Esq.

Heller, Ehrman, White & McAuliffe 44 Montgomery Street., 31st Floor San Francisco, CA 94104

• Via Express Mail

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