ML20134F973

Provides Commission Views Re Appropriateness of Addl Hearing on Facility Issues & Generic Question of Earthquake Emergency Planning,In Response to 850710 Request.Nrc Decision in Facility Case Correct & Proper

ML20134F973
Person / Time
Site:	Diablo Canyon
Issue date:	08/12/1985
From:	Bernthal F NRC COMMISSION (OCM)
To:	Markey E HOUSE OF REP., ENERGY & COMMERCE
References
CLI-84-4, TAC-49424, NUDOCS 8508220089
Download: ML20134F973 (2)

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August 12, 1985 CHAIRMAN /

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The Honorable Edward J. Markey, Chairman Subcomittee on Energy Conservation and Power Comittee on Energy and Connerce United States House of Representative 3 Washington, D.C. 20515

Dear Mr. Chairman:

This is to respond to your request at the July 10, 1985 Subcommittee hearing for the Comission's views on the " appropriateness or inappro-priateness of an additional hearing on the issues which have been raised with regard to Diablo Canyon specifically, and with regard to the generic question of earthquake emergency planning.'- From the context in which this request arose, the Comission understands it to be both a request that the Comission reconsider its formal cdjudicatory decision not to consider the effects of earthquales on emergency planning at Diablo Canyon, and a request to reconsider its proposed rule not to consider the effects of earthquakes on emergency planning as a generic matter. The Comission continues to believe that its decision in the Diablo Canyon case was correct and entirely proper. Moreover, it would be inappropriate in any circumstance for the Commission now to reconsider its decision in the Diablo Canyon proceeding for at least two reasons. First, the decision is now pending for review in the U.S. Court of Appeals for the D.C. Circuit and under 28 U.S.C. Q 2347(c) the Commission should not, without judicial approval, reconsider a decision after the filing of a petition for judicial review. See, e.o., American FarmLinesv.BlackBallFreightService,397U.S.53C54D-{T970). Second, at this time any Commission reconsideration of the Diablo Canyon adjudicatory decision at your suggestion would be an outgrowth of oversight hearings that were critical of the Comission's decision. Adjudicatory reconsideration in these circumstances would raise grave questions regarding adherence to t'le Comission's statutory mandate as an independent regulatory agency, and duty to the parties in its adjudicatory proceedings, to decide issues in a manner that preserves both the reality and appearance of independence and impartiality. E.o., Pillsbury v. FTC, 354 F.2d 952 (5th Cir. 1966). 8508220089 050012 PDR COMMS NRCC CORRESPONDENCE PDR

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On the generic rulemaking matter, we have yet to receive our staff's analyses of the numerous public comments and recommendations on the final rule. We believe that we should await them before reaching any decision in this matter lest we be accused of prejudging the rulemaking issue and failing to give adequate consideration to the public comments as we must do under applicable law in notice and consnent rulemaking proceedings. Commissioner Asselstine is on official travel. He will provide his views on these issues by the end of this week. Sincerely, r 3 A L. 3_h _

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Frederick M. Bernthal Acting Chairman I I I}}