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- I SECY-81-115 l February 23, 1981
!. . c.. .ay, fe ADJUDICATCRY ISSUE (Commission Meeting)
FOR: The Commissioners FROM: Leonard Bickwit, Jr.
General Counsel
SUBJECT:
DIABLO CANYOM PREHEARING CONFERENCE ORDER DISCUSSION: On February 17, 1981, the Atomic Safety and Licensing Board issued a Prehearing Conference Order addressing applicant Pacific Gas and' Electric's motion seeking fuel loading and low. power testing authorization and, to a lesser degree, Joint Intervenors' motion to reopen full power hearings and Governor Brown's recuest to carticioate on several subjects.
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55.YtiOTE: This paper, wnich is currently seneduled CONTACT: for discussion at a closed Comission meeting at Martin G. Malsch, OGC 10:00 a.m. on Wednesday, February 25, is identical
- 634-1465 Advance copies which were distributed to Comissient ;
Richard A. Parrish, OGC on February 23.
- 634-3224 s 8805130202 000418 #
.' 2 Leonard Bickwit, Jr.
General Counsel O!STRIBUTION .
Comissioners Comission Staff Offices Secretariat 9
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UNITED STATES"OF AMERICA /s use0 .A
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NUCLEAR REGULATORY COMMISSION 5 APR 11981 > 7 l - @ Offa of the Samten $
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% #ff. e Joseph M. Hendrie, . Ch airman g l pp Victor Gilinsky Peter A. Bradford I[gp John F. Ahearne. .
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4pg A1981
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In the Matter of '
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Docket Nos. 50-275 0.L.
FACIFIC GAS AND ELECTRIC COMPANY )
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(Diablo Canyon Nuclear Power )
Plant, Units 1 and 2) ) ',
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ORDER CLI 5 Tne Commission has reviewed the Atomic Safety and Licensing . 1 Board's Prehearing Conference Order dated February 17, 1981, as well as the underlying papers and oral argument, and determinined that additional Commission guidance, consistent with its Revised Statement of Policy, CLI-80-42, 12 NRC (1980), needs to be 1
provided on litigation of Three Mile Island (TMI) accident related issues in licensing proceedings. The Commission recogni::es that this guidance could lead to reconsideration of some of the various
' rulings contained in the February 17, 1981 Order. In providing this guidance the Commission is exercising its inherent supervisory I
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of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (l977). .j
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- 1. The Board Should Rule Promptly on Motions for Puel Loading and Low Power Testing Pursuant to 10 CFR 50.57(c), the filing of a motion for a parti.a1 initial decision on fuel loading,and low power
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. testin'g requires an initial de' termination by the Licensing
' Board on whether the evidentiary record compiled to that
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'p455$*~is adequatA for such a partial dec' inion. 10'CTR 50.57(c) does not generally contemplate that a new ev,identiary record, based on litigation of new contentions, would be compiled on the neotion for fuel loading and low power testing.
When' the record has been closed but motionr to reopen have been filed, the Licensing Board should decide whether the record must be reopened for new evidence directly relevant to the fuel loading and low power licensing request. Decisions on full power issues associated with the motion to reopen could be postponed until later.
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- 2. The Record Should Not Be Reopened Absent a Showing th at Significant New Evidence Which Would Af f ect the Decision Is Available As we stated in the Revised Policy Statement, where the evidentiary record on safety issues has been closed, 1/ The Commission is aware of the various participants' requests for certification or directed certification to the Commission regarding the February 17, 1981 Prehearing Conference Order.
l These motions appealing an interlocutory order are not l provided for in the Commission's Rules of Practice and afe accordingly denied. 10 CTR 2.730(f). In issuing this order the Commission is exercising its authority sua spente. The Union of Concerned Scientists' Request to Participate as Amicus Curiae is similarly denied.
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the record should not be reopened on THI-related issues
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relating to either low or full power absent a. showing, by the moving party, of "significant new ev/idence not included in the record, that materially affects the decision." This is in ' accord wi@ longstanding Commission practice .
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K'ai$a Gas s, Electric Co., et al. (Wolf Creek Generating
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We station,,, Unit 1), ALAB-462,.7 NRC 320, 338 (1972).
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emph'asifde that bare" allegations or simple submission of new
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code ons'.i[snotsufficient. Only significant new evi ~
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donce requires reopening. Of course, in moving to re,open, a party need not supply wr.4 i: ten testimony of independent ;
d experts, but is free to rely on admissions and statements fAm applicant and NRC staff and official MRC documents or other documentary evidence.
- 3. Where A Party Can Adduce Significant New Evidence W at an i NRC Regulation Would Be Violated by Plant Operation, th,aj Contention Should Be Admitted Notwithstandine the Fact th at this Matter Is Not Addressed in NOREG-07 37 and 069'4 Parties hre generally frae to raise issues of compliance with NRC regulations, subject to 10 CTR 2.714 specificity and lateness requirements, where applicable, and standards for reopening records, where applicable. This holds true for TMI-related issues, and nothing in the Revised Policy i
statement af f ects this, nus, if a party comes forward on a timely basis with significant new TMI-related evidence i.ndicating that an NRC safety regulation would be violated by plant operation, we believe that the record should be.
- reopened notwithstanding that the noncompliance item is not 1
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However, the parties are discussed in NUREG-0737 and 0694.
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requir'ed to make the initial case that significant new i
evi. dance is available, not merely make claims .
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effect'.
- 4. Procedures for Arquing that there is Insufficient Protection to the Public Despite Compliance with All NRC Regulations . .
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Where the new evidence raises no issue of compliance but.. .
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rathiF"_ questions .whether'there is adequate protection
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despite; compliance with all applicable regulations, ._a
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party has two procedu.ral options under the Revised Stat'ement of Policy. First, a party may challenge the sufficiency of
, an iteii in the NUREG documents. However, the scope of the inquimf, under this option is limited to the particular safek[ concerns that prompted the specific "requirements" in NUREG-0694 and 0737. What we had in :.ind was allowing a party to focus on the same safety concern that formed the basis for the NUREG requirament and litigate the issue of whether the NUREG "requirement" is a suf ficient response to that concern. 2_/ Contentions which address a safety concern 2/ For example, the Item I.A.1.3 of NUREG-0737, which deals with shif t manning and imposes afditional requirements above and beyond 10 CPR 50.54(k), deals with the safety concern that there must be adequate expertise in the control room at all times to ecpe with any accident or unexpected event.
The concern does not relate to the general design of the control room or to the need for specific centrol room equipment. Thus, a contention which purports to challenge the suf ficiency of the shif t manning requirement would have to be based on the argument that this requirement was
- inadequate to deal with control room staf fing, and a cha11enge to Item I. A.1.3 which focused on control room design and equipment would not be permissible.
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not considered in NUREG-0694 and 0737 shall not be enter-
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tained as challenges to the sufficiency of those require-nebts.- 'Second, where the contention or ,new evidence cannot be associated with a safety concern identified by NUREG-0694 or[073Y,,10 CFR,2.758 may be used to bring the matter, to the '
'Commiis~ ion's attention without prior litigation on the
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~.m,a,,r,its p, In this' situation, a party must first make a.
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prima facie case to the Board that application of a given
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7' 'r61Ta{iNl this ~ parti ~eular proceeding would not s'erve the purpose f'oi wh'ich that rule was adopted. If the party is abl,e tb make this case, the Commission will determine whether that rule will be waived or an exception made from its requirements in that caso.
We note that quite apart from the procedures of 10 CTR 2.758, parties are always free to' bring to the attention of the Commission any matter within its jurisdiction. This course would be available to a party even where a Board had ruled that the party had not made the prina f acie case required by 10 CTR 2.758. In such cases, the Commission is under no obligation to respond to the matter. .
In addition, of course, the specificity and lateness requirement of 10 CTR 2.714 must be satisfied, where applicable, and the standards for reopening records murt be satisfied, where applicable. Thus, to have a late filed contention admitted, the following f actors must be considered:
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Good cause, if any, for failure to file on time.
.. 7.m(ii) The availability cf other means,whereby the the petitioner's interest will be protected. -
T.liii.)'The ex' tent to which the petitioner's participation
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may reasonably be expected to assist in developing -
.a sound record. .
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(iv) The exdent to which the petitioner's interest will
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... 4m 3 2 The extent to which the petitioner's participation
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In ad,dition, the proponent of reopening the record must ,
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present significant new information, a requirement whlch
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, could be satisfied by ref erence to new information in ITURIG-0737 Finally, it must be shown that the new information would have caused r, different result had it been considered originally.
It is so ORDERED.
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/q. [$),,# $ecretary of ;the Cc:::nission Cated at Washingten, D.C.
thefCIdayofApril,1981.
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