ML20154M447

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Partially Withheld SECY-85-027 Discussing Review of Encl Decision ALAB-782 Re Diablo Canyon Nuclear Power Plant Units 1 & 2
ML20154M447
Person / Time
Site: Diablo Canyon, 05000000
Issue date: 01/25/1985
From: Malsch M
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
ML20151K691 List:
References
FOIA-85-409, TASK-AINV, TASK-SE ALAB-782, SECY-85-027, SECY-85-27, NUDOCS 8603140283
Download: ML20154M447 (44)
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ADJUDICATORY ISSUE January 25, 1985 Otadon Vote) sECY-8s-27 l

t For: The Commissioners Frcm: Martin G. Malsch Deputy General Counsel

Subject:

REVIEW OF ALAB-782 (IN THE MATTER OF PACIFIC GAS AND ELECTRIC COMPANY)

Facility: Diablo Canyon Nuclear Power Plant, Units 1 and 2 l

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6 8603140283 860115 PDR FOIA l RYAN85-409 PDR i

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O-4 o-9 Recommendation:

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Martin G. Malsch Deputy General Counsel Attachments:

1) ALAB-782 -
2) Petition for Review
3) PG&E Opposition to Petition for Review
4) NRC Staff Opposition to Petition for Review Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Friday, February 8, 1985..

Commission Staff Office comments, if any, should be submitted to the Commissioners NLT Friday, February 1, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.

DISTRIBUTION: '

Commissioners -

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OGC OPE SECY D

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' UNITED STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPF .h.'UD Administrative Judges:

Thomas S. Moore, Chairman 14 SEP -7 ne rd2 6,1984 Septembe Dr. John H. Buck (ALAB-782)

Dr. W. Reed Johnson i,9 , , _

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In the Matter of 3.,g : {,- }

PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 OL

) 50-323 OL (Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

.2.....,_ Joel R. Reynolds, Ethan P. Schulman, Eric Havian and_ _

John R. Phillips, Los Angeles, California, and .

David S. Fleischaker, Oklahoma City, Oklahoma, for the San Luis Obispo Mothers for Peace, et al., joint intervenors.

Robert Ohlback, Philip A. Crane, Jr., Richard F. Locke and Dan G. Lubbock, San Francisco, California, and Arthur C. Gehr, Bruce Norton and Thomas A. Scarduzio, Jr.,, Phoenix, Arizona, for Pacific Gas and Electric Company, applicant. -

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Lawrence J. Chandler for the Nuclear Regulatory Commission staff.

l MEMORANDUM AND ORDER Opinion for the Board by Dr. Buck and Dr. Johnsons ,, ,

- On July 16, 1984, the joint intervenors filed with us a j motion to reopen the Diablo Canyon proceeding on seismic issues.1 The motion, accompanied by the affidavit of Dr.

1 Joint Intervenors' Motion to Reopen the Record on Seismic Issues.

2 i

James N. Brune, is founded upon seismological information characterized by intervenors as newly acquired and of such significance as to put into question the seismic design of

) the Diablo Canyon plant. In short, our attention is directed to data obtained from the April 24,.1984 Morgan i Hill (California) earthquake, the results of a research l paper by J.K. Crouch, S.B. Bachman and J.T. Shay (1984) related to the nature of the Hosgri Fault, and a series of 4

l recent earthquakes along the Central California coast, that l assertedly cast doubt upon the seismicity previously assigned in NRC proceedings to the Diablo Canyon region.3 The applicant and NRC staff oppose the motion to reopen.4 Both parties first question whether this Board has jurisdiction to entertain such a motion, arguing that our earlier decision on seismic design matters, ALAB-644, 13 NRC

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i 903 (1981) , which the Commission declined to review, j ..

l.. 2 Dr. Brune is Professor of Geophysics, scripps Institution of oceanography, University of California at San

. Diego. He has appeared in these proceedings previously as a witness for the joint intervenors and for Governor Brown of California. See ALAB-644, 13 NRC 903, 1013 (1981).

Joint Intervenors' Motion to Reopen the Record on Seismic Issues (July 16, 1984) at 3-17, Attachment V.

4 Answer of Pacific Gas and Electric Company in opposition to Joint Intervenors' Motion to Reopen the Record on Seismic Issues (July 27, 1984); NRC Staff's Answer to-Joint Intervenors' Motion to Reopen the Record on Seismic Issues (August 1, 1984) .

3 represents final agency action on the subject.

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  • Alternatively, these parties treat the joint intervenors'
  • motion on its merits and again conclude it should be denied.

Because the joint intervenors had not addressed the

.- . jurisdiction question, we asked for their views on this matter. In an August 9, 1984 reply, joint intervenors take the position, inter alia, that agency action on this issue is not final, and that this Board does have jurisdiction to decide their motion.

c As we discuss below, review of the parties' arguments, the procedural history of this case and our earlier decisions convinces us that we do not have jurisdiction to consider the intervenors' motion to reopen the record on seismic issues. The motion is therefore dismissed. This does not me n, however, that joint intervenors are without an avenue to pursue their concerns on the seismic design" \

issue within this agency. Under the terms of 10 CFR 2.206,

-- - they may request the Director of Nuclear Reactor Regulation' I to institute a show-cause proceeding seeking to amend or l revoke the Diablo Canyon operating license.

5 We note that, at the request of the joint intervenors, the United States Court of Appeals for'the -

District of Columbia circuit, on August 17, 1984, stayed the Commission's August 10, 1984 order authorizing issuance of a full power license for Diablo Canyon. The stay will remain in effect pending court review. San Luis obispo Mothers for Peace v. NRC, No. 84-1410 (D.C. Cir. Aug. 17, 1984).

. 4 Following hearings on the seismic redesign of Diablo L *

  • Canyon to account for the earthquake potential' of the Hosgri Fault, the Licensing Board found the plant to be adequately designed to withstand any earthquake that could reasonably

-- be expected. LBP-79-26, 10 NRC 453 (1979). While joint intervenors' appeal of that decision was before us, we granted their motion to reopen the record to receive evidence derived from the 1979 Imperial Valley Earthquake.

Following a six-day hearing to consider this evidence, we issued a decision, ALAB-644, that covered matters raised both on the appeal of the Licensing Board's decision and in the reopened hearing. We found that the seismic design of the facility was adequate and affirmed the.Licening Board's decision.0 The Commission declined to review ALAB-644, rendering it final on March 18, 1982.7 Our earlier decisions make it abundantly clear that" when a discrete issue has been decided by an appeal board and the Commission declines to review that decision, agency-action is final with respect to the issue and our

. jurisdiction is terminated. This is the case even when other issues may still be before us. Our most recent 6 ALAB-644, supra, 13 NRC at 996.

7 See letters from S.J. Chilk, NRC, to parties, dated March 18, 1982.

, . , _ _____,..,____,__,_.,.,_,,_,,__---.n.,_, , _ _ _ _ . , _ _ , _ _ _ , _ _ , , _ , , _ , _ _ - , _ . _ _ , _ , - _,_ , , . _ _

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determination of this jurisdictional question appeared a,- .

earlier this year Under settled principles of finality of adjudicatory action, once we have finally determined discrete issues in a proceeding, our jurisdiction is terminated with respect to those issues, absent a remand order by the Commission or

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a court issued during the course of its review of our decision. Virginia Electric and Power Co.

(North Anna Nuclear Power Station, Units 1 and 2),

ALAB-551, 9 NRC 704, 708-09 (1979); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-513, 8 NRC 694, 695 (1978). ... It is clear that where, as here, the Commission declines to review our decision, a final agency

> determination has been made resulting in the

termination of our jurisdiction.

To be sure, [ unrelated) issues . . . are still before us. That we may yet be considering some

issues in a proceeding, however, does not preserve our jurisdigtion over issues previously l determined.

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. Intervenors point out that we still have before us on They argue that

,l appeal mattyrs related to earthquakes. . ,

j because there is a sufficient relationship (i.e. , a reasonable nexus) between these issues and those forming the

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8 Metropolitan Edison Co. (Three Mile Island Nuclear ~' -

I- Station, Unit No. 1), ALAB-766, 19 NRC 981, 983 (1984)

(footnotes omitted). The joint intervenors rely *on the cited Seabrook decision, ALAB-513, for the proposition that if an issue has not as yet received court review, there has been no final agency action with respect to it. But it is clear that the reference to court review in seabrook (8 NRC at 695) was to provide the reader with information as to'-the ultimate resolution of the question there. Seabrook should not be read to suggest that court review constitutes an element of agency action on an issue. See also Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit

3) , ALAB-753, 18 NRC 1321, 1329-30 (1983).

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6 basis of the instant motion to reopen, we do ,indeed still have jurisdiction to consider the motion.8 Ne do not agree.

The issues before us in the full power appeal are not

-- - related to the seismic design of the facility and are

: independent of the nature of a particular earthquake.10 The

- motion, on the other hand, would have us explore again the detailed nature of the seismic design bases for the plant,

. and involves totally different considerations than the questions on appeal. It is clear that, with our decision on

-. seismic design issues in ALAB-644 and the Commission's determination not to review that decision, the adjudication-of that matter is final and we no longer have jurisdiction.

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I See Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 707 (1979) (where 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).

10 In ALAB-781, 20 NRC , we have today decided exceptions raised by the joint intervenors and Governor Brown to the Licensing Board's final initial decision authorizing full power operation of Diablo Canyon (LBP-82-70, 16 NRC 756 (1982)). Two matters considered in those appeals pertain peripherally to the effects of earthquakes: the Board's failure to consider (1) earthquakes in emergency planning, and (2) the special circumstances of earthquake potential at Diablo Canyon as a basis for analyzing the environmental effects of Class 9 accidents. Clearly we considered these issues to be still before us in our analysis of the jurisdiction question.

7 The motion to reopen the record on seismic issues is a.- .

dismis=ed, _,

It is so ORDERED.

~.._ FOR THE APPEAL BOARD OO N 3d -

C. Q an Shoemaker Secretary to the Appeal Board Because Dr. Buck's full retirement from the Appeal Panel becomes effective September 7, 1984, the majority

. opinion is being issued today without the separate opinion of Mr. Moore. That opinion will issue subsequently.

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ATTACHMENT 2

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Ny.C' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ... e-- p r* ';

BEFORE THE COMMISSION s,.

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) )

) _ ..

JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-782

, Pursuant to 10 C.F.R. 5 2.786, the SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.,

ECOLOGY ACTION CLUB, SANDRA SILVER, GORDON SILVER, ELIZABETH APFELBERG, and JOHN FORSTER (" Joint Intervenors") hereby petition the Commission to review ALAB-782, issued by the Atomic Safety an(

Licensing Appeal Board (" Appeal Board") in the above-entitled proce'eding on September 6, 1984. In that decision (attached as an exhibit hereto), the Appeal Board 1! dismissed for lack of jurisdiction the Joint Intervenors' Motion to Reopen the Record on Seismic Issues (July 16,1984) to consider significant new information that directly contradicts the Appeal Board's decision in ALAB-644 approving the seismic design basis for the Diab o Canyon Nuclear Power Plant ("Diablo Canyon").

1/ ALAB-782 was issued by only two members of the panel. A sep. rate opinion by the Board's chairman has not yet been issued.

The Appeal Board's decision in ALAB-782 is erroneous.

In order to remedy the Board's error -- as outlined below -- the Joint Intervenors request the Commission to (1)t grant review of ALAB-782 and (2) reverse the Appeal Board's decision set forth  !

therein.2/

I. COMMISSION REVIEW SHOULD BE EXERCISED . _ _ . _ _ , _ _ . . . . _ . .

No issue is more fundamental in this proceeding and to confidence in the Diablo Canyon facility than seismic safety. No i

decision has been more vigorously contested than ALAB-644, which i

! the Commission -- after 13 extensions of the' review period --

l declined to review by a vote of 2-2-1 in March 1982.

, i On July 16, 1984, the Joint Intervenors filed a motion '

to reopen based on a comprehensive expert affidavit and numerous i recent seismic and geologic studies and data directly contra-1 dicting several critical findings underlying the Appeal Board's decision in ALAB-644. For example, recent studies indicate that

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both the nature of the Hosgri Fault and its location threaten j , significantly greater forces at the plant in the event of a major

, earthquake. Further, data from recent earthquakes indicate that '

( , the forces generated by earthquakes significantly smaller than the SSE for Diablo Canyon equal or exceed the maximum forces postu-i I

lated for the SSE at Diablo Canyon. Finally, recent analyses by  ;

the USGS establish that, contrary to the Appeal Board's l l I/ All matters of fact and law discussed herein were l previously raised. See, ezgt, Joint Intervenors' Motion to Reopen

! the Record on Seismic Issues (July 16, 1984 ) ; Joint Intervenors' 3eply Regarding Jurisdiction of the Appeal Board to Consider {

i l ' Motion to Reopen the Record on Seist '* sues (August 9,1984) . '

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. conclusion, Diablo Canyon is located in an area characterized by frequent earthquakes.of M 5.0 on the Richter Scale or greater.

In ALAB-782, the Board considered none of this critical s.

. safety information. Instead, it disavowed jurisdiction and suggested that a 10 C.F.R. 5 2.206 petition to the NRC Staff -- a party that has always dismissed the Joint Intervenors' seismic

. safety concerns and that is in part responsible for the plant's missiting adjacent to the Hosgri Fault -- is.an adequate avenue for review. The Joint Intervenors submit that the Appeal Board's

! decision is erroneous with regard to an.important matter of law l and hence that commission review is essential in order to ensure j that significant new safety information is not ignored.

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, , , II. THE APPEAL BOARD'S DECISION IS ERRONEOUS _ _ _ , . _ _

In ALAB-782, the Appeal Board concluded that it is without jurisdiction to consider seismic issues because, in

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essence, ALAB-644 became final agency action when the Commission denied review in March 1982. Further, the Board concluded that nb j issues still before the , Board have a sufficient nexus to the seismic issues to provide an independent basis for jurisdiction.

For several reasons, the Joint Intervenors disagree.

First, while the authorities relied upon by the Board 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 Comnany of New Hampshire (Seabrook Station, Units 1 and 2), (Seabrook Station, Units 1 and 2), ALAB-513, 3 NRC 694, 695 (1978). In the 3

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 ahd; accordingly, jurisdiction over seismic issues continues to rest with the Board.

Second, at the time the Motion to Reopen was filed, the full power licensing proceeding was still in progress, both before

. the Appeal Board and the commission. Consequently, the Board's jurisdiction continued over all matters relevant to a full power licensing decision, including seismic safety. Sgg Virainia 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); sit A112 10 C.F.R. 5 2.717 ("[t]he presiding officer's jurisdiction in each proceedina will terminate upon the expiration of the period within which the Commission may direct that the record be certified to it

..) (emphasis supplied) .

for final decision . Hence, it could ,

not properly refuse to consider the merits of the Joint

. Intervenors' application.

Third, even if finality were "ound to exist as to the seismic issues, the new information submitted by the Joint Inter-venors bears such a close nexus to issues still before the Board that the asserted jurisdictional bar is inapplicable. In Vircinia 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 hurisdictiontoentertainnewmattersisdependentuponthe existence of a " reasonable nexus" between those matters and the issues remaining before the board." In this preceeding, the Board was then reviewing t'wo issues directly related to seismic safety:

(1) seismic impacts on emergency preparedness, pnd (2) special -

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circumstances -- 3232, 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 obviously be affected by the new i evidence on seismic safety submitted by the Joint Intervenors in

their recent Motion to Roopen. Thus, because those issues were l

. still pending, the required " reasonable nexus" exists and the  :

Board has jurisdiction to consider the motion.

.. Cf. In the Matter of Metrooolitan Edison Company (Three Mile Island Nuclear Station, i

j Unit No. 1), ALAB-766, CCH Nuclear Regulation Reports 1 30, 849 ,

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(April 2,1984) (no nexus between issue of adequacy of emergency l 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 financial qualifications of applicants and siting).

( Finally, the Appeal Board's familiarity with the issues f is relevant to a determination of the jurisdictional issue. I6 Philadelphia Electric Company (Limerick Generating Station, .. .

, Units 1 and 2), ALAB-726, 17 NRC 755 (1983), the Appeal Board was I i

confronted with the question of whether it had jurisdiction over a l

, motion to reopen. In resolving this issue, the Board turned to  !

! principles of " common sense and the realities of litigation" to l arrive at the result that it was the licensing board that should  !

) . .

l decide the issue. The Appeal Board found:

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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's dif-forent result might have been reached if the new materials had been considered previously.  ;

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980) . Generally, the ini-tial decisionmaker is in the best position to determine if that is the case.

In the instant case, the Appeal Board clearl'y 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 the Appeal Board is fully consistent >

with the NRC's obligation to reopen the record to consider significant new information. gag 32g2, Hudson River Fisherman's Assocation v. Federal Power Commission, 498 F.2d 827, 832-33 (2d Cir.1974); Brennan v. Occuoational 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 1,97 (1965); see glsg 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 submit that the Appeal Board has jurisdiction and that their Motion to Reopen should have been granted. Consequently, the Board's dismissal of the Joint Intervenors' motion should be reversed. .

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III. CONCLUSION For the reasons stated herein, the Joint Intervenors request that this Petition for Review be grante,d pnd ALAB-782 be reversed.

Dated: September 17, 1984 Respectfully submitted,

.- ~ JOEL R. REYNOLDS, ESQ.

ETHAN P. SCHULMAN, ESQ.

ERIC EAVIAN, ESQ.

JOHN R. PHILLIPS, ESQ.

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 By' ,w8 J EL R. fp?pOLDS AttorMys for Joint Intervenors

  • SAN LUIS O8ISPO MOTHERS FOR s PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

ECOLOGY ACTION CLUB .

SANDRA SILVER GORDON SILVER ELIZABETH APFELBERG JOHN J. FORSTER S

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UNITED STATES OF AMERICA M 6CI -4 Aiu .*4)

NUCLEAR REGULATORY COMMISSION ,.,

BEFORE THE COMMISSION , ;Nn , .[ ,r qm

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In the Matter of )

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PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 COMPANY ) 50-323

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(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) ) , ,

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ANSWER OF PACIFIC GAS'AND ELECTRIC COMPANY ,

TO PETITION FOR REVIEW OF ALAB-782 5

INTRODUCTION On September 27, 1979, the Atomic Safety and -

Licensing Board (" Licensing Board") issued its Partial Initial Decision finding that the Diablo Canyon Nuclear Power Plant is adequately designed to withstand any earthquake that can reasonably be expected. J_nn the matter "of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2) LBP-79-26, 10 NRC 453 (1979). 'On October 15, 1979, a *large earthquake struck California's 6

Imperial Valley ocated some 250 miles southeast of the Diablo Canyon site. The joint intervenors }/,.had already appealed LBP-79-26 to the Atomic Safety and Licensing Appeal Board (" Appeal Board") when the data from the Imperial Valley 1979 earthquake became available in early 1980.

After the appeal had been briefed but before it was decided, the joint intervenors moved the Appeal Board to reopen the record to take new evidence relating to the Imperial Valley earthquake. The Appeal Board granted joint intervenors' request and reopened the record to receive the new evidence. The reopened hearing was held in San Luis Obispo, California, beginning October 26, 1980, and consumed six trial days. After hearing the new evidence, the Appeal Board denied the exceptions to the Licensing Board's partial initial decision and, inter alia, affirmed the Licensing Board's partial initial decision with respect to the issue of the seismic potential of the Diablo Canyon site. I_n,'the n

matter of Pacific Gas and Electric Company (Diablo Canyon, Units 1 and 2, ALAB-644, 13 NRC 903 (1981). -

On March 18, 1982, the Nuclear Regulatory Commission (" Commission") declined to review ALAB-644, thereby constituting final agency action. j

}/ Joint intervenors are the San Luis Obispo Mothers for Peace; the Scenic Shoreline Preservation Conference; the

  • Ecology Action Club; Sandra A. Silver; Cordon

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Silver; John J.'Forster and Elizabeth Apfelberg.

On May 17, 1982, a Petition for Review to the Court of Appeals of ALAB-644 was filed by {.he Governor entitled Edmund G. Brown, g ., Governor g the State g California v. Nuclear Regulatory Commission and the United States o_f America, No. 82-1549. The joint intervenors did not join in the Petition for Review filed by the Governor.

On July 14, 1984, with No. 82-1549 pending before the D.C. Court of Appeals, joint intervenors filed yet another motion to reopen with the Appeal Board' on the question of the seismic potential of the Diablo Canyon site.

On September 7, 1984, the Appeal Board dismissed the motion to reopen on the grounds that the Appeal Board lacked jurisdiction to entertain the merits of the motion.

(ALAB-782) On September 17, 1984, the joint intervenors filed the instant Petition for Review of ALAB-782.

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ARGUMENT l 1. The Commission's Decision Not to Review ALAB-644 Constitutes Final Agency Action. .

l The joint intervenors argue that although the jurisdiction of the Commission's hearing boards ceases after

. final agency action, since the appeal of ALAB-644 is pending l

l before the Court of Appeals, the Commission's actions are l

not final. This position is incorrect. .,

The joint intervenors rely upon Public Service

! Company of New Hampshire -(Seabrook Station, Units 1 and 2),

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ALAB-513, 8 NRC 694, 695 (1978) to support their position that a pending appeal precludes finality from attaching.

Although the language in ALAB-513 seems to support this conclusion this language has been qualified by the Appeal Board.

In Metropolitan Edisen C_o . (Three Mile Island Nuclear Station, Unit No. 1), ALAB-766, 19 NRC 981, 983 (1984), the Appeal Board held:

"Under settled principles of final-ity of adjudicatory action, once we have finally determined discrete issues in a proceeding, our jurisdiction is termi-nated with respect to those issues, ab-

. sent a remand order by the commission or a court issued during the course of its review of our decision. Virginia Elec-tric and Power Co. (North Anna Nuclear Power Station, U Ets 1 and 2), ALAB-551, 9 NRC 704, 708-09 (1979); Public Service Co. -of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978). . . . It is clear that where, as here, the commission declines to re-view our decision, a final agency deter- . g miniation has been made resulting in the termination of our jurisdiction.

To be sure, [ unrelated) issues

. . . are still before us. That we may -

yet be considering some issues in a pro-ceeding, however, does not preserve our jurisdiction over issues previously determined." (footnotes omitted)

See also; Louisiana Power and Light Q. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1329-30

'(1983 ) ; Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-530, 9'NRC 261, 262

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(1979).

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As noted by the Appeal Board in its decision below, the Seabrook decision cannot be read to suggest that ,

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, court review constitutes an element of agency action on an issue. Slip opinion, at 5, En. 8. The reason for this is quite simple; appellate court review is not available until a final order of an agency has issued. See 28 U.S.C.

I 2342(4); 42 U.S.C. $ 2230(b). As pointed out by the court of appeals in Resources Defense Council, Inc. v. Nuclear a Regulatory Commission, 680 F.2d 810, 815 (D.C. Cir. 1982): -

. "Our jurisdiction to review the NRC ac-i tions, however, is limited. Section

189(b) of the Atomic Energy Act of 1954, 42 U.S.C. $ 2239(b) (1976), provides only for judicial review of "(a)ny final order" entered by the NRC in any pro-caeding "for the granting, suspending, <

revoking, or amending of any license .

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" Id. $ 2239(a). Under the cor-responding jurisdictional provision, 28 U.S.C. $ 2342(4) (1976), the court of appeals has exclusive jurisdiction to review "all final orders of the Atomic i

Energy Commission (now the Nuclear Regu- . g

latory Commission) made reviewable by j section 2239 of title 42 . . . . " Con-

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sequently, even if the parties agree that the issues raised are properly be-fore the court, these review provisions -

mandate a jurisdictional inquiry into the finality of the agency actions being I challenged. Citizens for a Safe Envi-l ronment v. Atomic Energy Commission, 489 F.2d 1018, 1020 (3d. Cir. 1974) (fn.

omitted).

Particularly, in cases arising from actions of this I

' ommission where partial initial decisions are routinely C

I issued, any rule that would consider appellate review by a l

j court as agency acti6n would preclude any appellate review  ;

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of a commission order until the entire licensing proceeding is completed. u S'ch a rule is not contempAated by the commission's licensing process.

2. The Pendency of the Full Power Pro-ceeding Does Not Provide a Juris-dictional Basis to Consider the Motion to Reepen.

. In an effort to cloud the issues before this Commission, the joint intervenors have attempted to create an additional basis for finding jurisdiction. Relying on J_n the Matter o_f Virginia Electric and Power Company (North

Anna Nuclear Power Station, Units 1 and 2) ALAB-551, 9 NRC i 704 (1979), joint intervenors argue that an Appeal Board must wholly terminate its review of an initial proceeding for its jurisdiction to come to an end. Their reliance is misplaced. Rather than supporting the joint intervenors position, ALAB-551 clearly holds that finality can attach to some but not all of the issues in a licensing proceeding.and g thereby deprive an Appeal Board of jurisdiction to consider the issues to which finality has attached. In fact, where i

finality has attached to some, but not all issues, jurisdiction of an appeal board to entertain new matters is

, dependent upon a reasonable nexus between those new matters and the matters pending before the Board. Therefore, the

, fact that some matters are still pending before an Appeal Board is not determinative of the Board's jurisdiction to

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entertain new matters. ,

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3. The Appeal Board Correctly Con-cluded that No Reasonable Nexus Exists Between the Issues Remgining Before the Board and Those Raised I By the Motion to Reopen.

The joint intervenors are correct 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."

However, joint intervenors are incorrect in applying the rule to the facts of this case.

, The issues raised by the motion to reopen are specifically related to the seismic design of the facility .

and the nature of a particular earthquake. The issues remaining before the Appeal Board at the time of filing the motion to reopen related to a consideration of earthquakes in emergency planning and the question of special -

s circumstances of earthquake potential at Diablo canyon as a j basis for analyzing the environmental effects of Class 9 l accidents. Although each is related to earthquakes., neither.

t address nor deal with the seismic design of the facility or the nature of a potential Hosgri earthquake.

Nor have the joint intervenors made a showing as to the existence of a reasonable nexus. In fact, the only i

' showing made by the Intervenors is that the term .

" earthquake" is used in each issue. Clearly- no reasonble nexus has been established to permit the Appeal Board to accept jurisdiction of the new issues.

4. Familiarity with the Issues Does Not Provide a Basis for Jurisdic-tion in this Case. ' -

The final argument put fcrth by the joint intervenors is based on the notion that familiarity with the issues can somehow support a finding of jurisdiction. In ,

support of this position they cite a footnote from Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755 (1983). In ALAB-726, the board was faced with the novel question of which adjudicatory body had jurisdiction to rule on a motion to reopen filed at the same time as or after the issuance of an initial decision but before an appeal had been taken. 17 NRC at 757. The Appeal Board held that jurisdiction still resided with the Licensing Board. As stated by the Appeal Board:

Given the absence of any clear ad-ministrative guidance on the matter, ~ s common sense and the realities of liti-gation dictate this result. As Judge Cole correctly points out in his dis-senting statement, until exceptions are filed, the Licensing Board, by virtue of -

its extensive involvement with the case, is obviously better suited to rule in the first instance on the merits of a

motion to reopen a record that provides the factual predicate for its own ini-tial decision. But more importantly, until exceptions are filed, there is literally no appeal to invoke our juri F diction (see generally 10 CFR $$

2.762(a), 2.785) and, necessarily, we '-

have no familiarity with the case. (In this sense, an appeal board is in . the same posture .as a court of appeals during the time between issuance of a trial court judgment or final agency 4 order and the filing of the appeal or

l petition for review.) The Licensing Board correctly points out that NRC appeal boards have broader powers ' than most appellate bodies: we review ini-tial decisions sua sponte (see note 5, supra), and in exceptional circumstances we can take evidence and make our own factual determinations. But neither of these powers enhances our knowledge of a proceeding before it reaches our docket or operates to give us jurisdiction over an initial decision immediately upon its issuance. 17 NRC at 758. (Emphasis added.)

Although the concept of familiarity was discussed by the Appeal Board, it is abundantly clear that the basis for finding jurisdiction was that an appeal had not been filed and not that the Licensing Board was more familiar with the issue. Thus, this holding lends little support to joint intervenors' attempt at creating jurisdiction where none exists.

4a G,

e III CONCLUSION a,.

Since the petition does not raise, collectively or individually, any matters sufficient to grant review under the Commission's regulations, it must be denied.

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

RICHARD F. LOCKE DAN G. LUBBOCK Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94120 (415) 781-4211 ARTHUR C. GEHR Snell & Wilmer 3100 Valley Bank Center Phoenix, AZ 85073 (602) 257-7288 BRUCE NORTON THOMAS A. SCARDUZIO, JR.

Norton, Burke, Berry & French, P.C.

P. O. Box 10569 Phoenix, AZ 85064 .. 3 (602) 955-2446 Attorneys for Pacific Gas and Electric Company By '

^*~' 'N Bruce Norton DATED: October 2, 1984.

4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, , In the Matter of )

)

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

) Docket No. 50-323 Diablo Canyon Nuclear Power Plant, )

Units 1 and 2 ) , ,

)

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company 4

has (have) been served today on the following by deposit in the United

States mail, properly stamped and addressed

Judge John F. Wolf Mrs. Sandra A. Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 l US Nuclear Regulatory Commission  !

Wnshington DC 20555 Mr. Gordon Silver {

1760 Alisal Street Judge Glenn O. Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board US Nuclear Regulatory Commission John Phillips, Esq.

Washington DC 20555 Joel Reynolds, Esq.

Eric Havian Judge Jerry R. Kline Center for Law in the Public Interest Atomic Safety and Licensing Board 10951 W. Pico Blvd. - Suite 300 US Nuclear Regulatory Commission Los Angeles CA 90064 W2shington DC 20555 David F. Fleischaker, Esq.

Mrs. Elizabeth Apfelberg P. O. Box 1178 c/o Betsy Umhoffer Oklahoma City OK 73101  :

1493 Southwood Srn Luis Obispo . CA 93401 Arthur C. Gehr, Esq.

Snell & Wilmer \

Jcnice E. Kerr, Esq. 3100 Valley Bank Center

. Public Utilities Commission Phoenix AZ 85073 State of California 5246 State Building Bruce Norton, Esq.

350 McAllister Street Norton, Burke, Berry'& French, P.C.

Scn Francisco CA 94102 P. O. Box 10569 Phoenix AZ 85064 Mrs. Raye Fleming

. 1920 Mattie Road Chairman Shell Beach CA 93449 Atomic Safety and Licensing Board Panel Mr. Frederick Eissler US Nuclear Regulatory Commission Scenic Shoreline Preservation Washington DC 20555 Conference, Inc. .'

4623 More Mesa Drive Santa Barbara CA 93105 d

.-mr ----w--.y ,w y -e- .-,,,-,.-~-m. ~ . . . _ _ , - - + - - _ - , - _ . - . . , . - . - - - _ _ ,

..,..%.w.-r -,, ,,._m-- ,.- ,.,e ,.-e...-_---._-.--r-,,-m.-..-m----e

Chairman Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board l

, W2shington DC 20555 US Nuclear Regulatory Commission Washington DC 20555 S cretary US Nuclear Regulatory Commission Judge W. Reed Johnson Wnshington DC 20555 Atomic Safety and Licensing

, Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 Lawrence J. Chandler, Esq. Commissioner Nunzio J. Palladino H:nry J. McGurren Chairman US Nuclear Regulatory Commission US Nuclear Regulatory Commission Office of Executive Legal Director 1717 H Street NW Washington DC 20555 Washington DC 20555, Mr. Richard B.-Hubbard Commissioner Frederick M. Bernthal i MHB Technical Associates US Nuclear Regulatory Conraission 1723 Hamilton Avenue Suite K 1717 H Street NW Sen. Jose CA 95125 Washington DC 20555 Mr. Carl Neiberger Commissioner Lando W. Zech, Jr.

j Talegram Tribune US Nuclear Regulatory Commission P. O. Box 112 1717 H Street NW Snn Luis Obispo CA 93402 Washington DC 20555 Michael J. Strumwasser, Esq. Commissioner James K. Asselstine Susan L. Durbin, Esq. US Nuclear Regulatory Commission POter H. Kaufman, Esq. 1717 H Street NW 3580 Wilshire Blvd. Suite 800 Washington DC 20555 Los Angeles CA 90010 - \

Commissioner Thomas M. Roberts US Nuclear Regulatory Commission 1717 H Street NW j Washington DC 20555 i

I t .

A Date: October 2, 1984 1 2 M" i

. Thlli'p

. Crane,{r.

6 e

L ,s ATTACHMENT 4 b

h, 7

O

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

- PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant )

Units 1 and 2) )

NRC STAFF'S ANSWER TO JOINT It:TERVENORS' PETITION FOR REVIEW OF ALAB-782 A.

Henry J. McGurren Counsel for fiRC Staff Octqber 12,19E4 O

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 DL 50-323 OL (DiabloCanycnNuclearPowerPlant Units 1 and 2) 1 NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW Or ALAB-782 I. INTRODUCTION On September 17, 1984 Joint Intervenors filed a Petiticn for Review

+

of ALAB-782 with the Nuclear Regulatory Commission, pursuant to 10 C.F.R.

I 2.786. The Joint Intervenars request the Commission to grant review of and reverse ALAB-782. For the reasons set forth below, the NRC staff opposes Commission review of ALAB-782.

e II. BACKGROUND _ g On September 27, 1979, the Licensing Board issued a Partial Initial Decision concluding that the seismic design basis of the Diablo Canyon plant (including the determination of the Safe Shutdown Earthquake and maximum vibratory ground motion) has been properly determined so as to

~

j assure that the facility will be able to withstand any earthquake that l can reasonably be expected to affect the facility. LBP-79-26, 10 NRC 453

('1979) . The Joint Intervenors. timely filed an appeal to that decision.

While the matter was panding before the Appeal Board, on October 15, 1979 i .

. an earthquake estimated at magnitude 6.5 to 6.9 (Richter) struck

- - - - - - - - -. - . . _ _ _ _ = - _ . -.

California's Imperial Valley. ALAB-644, 13 NRC 903, 912 (1981). The appeal Board granted Joint Intervenors' subsequent motion to reopen the

- t .

record to receive new evidence on this earthquake. ALAB-598, 11 NRC 876, 887(1980)! Following a six-day hearing the Appeal Board issued ALAB-644 holding the seismic design of the Diablo Canyon facili'ty adequate and affirming the Licensing Board's decision. ALAB-644, supra, at 996. The Comission declined to review ALAB-644, rendering it final on March 18, 1982.II On Ju?y 16, 1984, the Joint Intervenors filed with the Appeal Board another motion to reopen the Diablo Canyon proceeding on seismic design

. issuesbasedonnewstudiesandinformation.Il The Appeal Board

- dismissed the motion stating that, wit'h its decision on seismic issues in i

ALAB-644 and the Comission's determination not to review that decision, t

the adjudication of that matter is final and it no longer has jurisdic-tion. ALAB-782, 20 NRC , slip op. at 6 and 7 (September 6, 1984).

l l

Asserting that the Appeal' Board's dismissal "is erroneous with regard to an important matter of law," the Joint Intervenors' Petition for Review - s followed.

t III. DISCUSSION Pursuant to 10 C.F.R. 5 2.786(b)(4)(1), a petition for review of matters of law or policy will not ordinarily be granted "unless it ap-o .

pears that the case involves an important matter that could significantly 1/ CLI-82-12A, 15 NRC A-1 (published at 16 NRC 7 (1982)).

2/ Joint Intervenors' Motion to Reopen the Record on Seismic Issues.

3-affect the environment, the public health and safety, or the common de-finse and security, constitutes an important. antitrust question, involves an important procedural issue, or otherwise raises important' questions of public policy." The Staff has considered the issues raised by the Joint Intervenors and believes that when measured against the standards set

- forth in section 2.786, they do not warrant the exercise of the Commis-sion's discretion to grant the petition, i.e. an important question of law or policy in regard to the foregoing areas of concern has not been presented. 10 C.F.R. I 2.786(b)(1).

As is discussed more fully below in the responses to each of the Joint Intervenors' arguments, the Staff submits that the Appeal Board's

- determination to dismiss Joint Intervenors' motion to reopen was made on straightforward and well-established jurisdictional principles, correctly applied, and thus does not raise an important question of law or policy warranting Commission review.

1. The Joint Intervenors, relying on a reference in Seabrook 2/

argue that, by virtue of an appeal filed in the U.S. Court of Appeals by i l

3/ Public Service Company of New Hampshire (Seabrook Station Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978). The Appeal Board ih l

- Seabrook provided the reader with the following background and ulti-I mate resolution regaiding the issue which was the subject of the motion to reopen (at 695):

We are constrained to dismiss the motion for lack of i

jurisdiction to grant the relief sought therein. The l . financial qualifications issue was determined favorably

~ '

to the applicants in the Licensing Board's 1976 initial decision authorizing the issuance of construction per- .'

j mits for the Seabrook facility. LBP-76-26, 3 NRC 857, l

867-68, 916-17. Our decision was in turn affirmed first '

l I~ (FOOTNOTE CONTINUED ON NEXT PAGE)

the Governor of California.from the Counission's decision not to review g

AtAB-644, finality has yet not attached to this agency's action on seis-mic issues. O Petition at 3. We cannot agree. As the Appeal Board  !

observed in rejecting this same argument (in ALAB-782), the reference to  !

1 the appellate review in the Seabrook decision was "to provide the reader i

- with information as to the ultimate resolution of the question there. . . [and] should not be read to suggest that court review consti-tutes an element of agency action on an issue" for purposes of adminis-i trative finality. See ALAB-782, supra, slip op. at 5 n.8.

The case law is clear that once the Commission determines that it is not going to review a decision, matters specifically addressed in that decision become administrative 1y final and agency jurisdiction termi-nates, subject, of course, to remand by a reviewing court. M As the (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) by the Comission and then by the Court of Appeals for the First Circuit. No petition for certiorari having been filed in the Supreme Court within the prescribed period for doing so, finality has now attached to the resolution of the question in this proceeding. Accord-ingly, we have no authority to reopen it.

4

~

i y If, as Joint Intkrvenors appear to presume, the Governor's appeal to the Court of Appeals is proper, finality must have attached else the

~ appeal should be dismissed on gror:nds of a failure to exhaust admin-1strative remedies. See Natural Resources Defense Council, Inc. v.

Nuclear Regulatory Commission, 680 F.2d 810, 815 (D.C. Cir.1982). '

. y See Virginia Electric and Power Company (North Anna Nuclear Power Ytation, Units 1 and 2),.ALAB-551, 9 NRC 704, 708 (1979).

- - - - - - - - - . _ . - - . . . ~ . , - . . - . . _ - - - . - _ _ - . - , - . .-.m., , , - - - . . - , - , . - - - , - . _ __ _ _ , _ , . - . . . -

Appeal Board stated in thi Three Mile Island decision0 /: "It is clear that where, as here, the Comission declines to review our, decision, a final agency detemination has been made resulting in the termination of our jurisdiction." E

___ 2. Joint Intervenors also rely on the North Anna decision U and 10 C.F.R. I 2.717 to argue that the Appeal Board's jurisdiction over seismic issues in this proceeding was not " wholly" teminated when the Joint Intervenors filed their motion to reopen (on July 16, 1984); they note that the full power proceeding was still in progress when their motion was filed. Consequently, they argue that the Board's jurisdiction

. continues over all matters relevant to a full power license including seismic safety. Petition at 4.

This argument overlooks a fundamental aspect of the rule of administrative finality, i.e., that a board's jurisdiction may have ter-minated on all but certain discrete issues. It is true, as the Joint Intervenors point out in the excerpt from the North Anna decision, that

  • once an appeal board has wholly terminated its review of an initial decision . . . its jurisdiction comes to an end." See North Anna ALAB-551, supra, at 708. It is also true that 10 C.F.R. 5 2.717 sets 6/ Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

ALAB-766, 19 NRC 981, (1984). See also Louisiana Power and Light Co. (Waterford Steam Electric Station Unit 3), ALAB-753,18 NRC 1321,1329-30(1983).

," 7f Three Mile Island, ALAB-766, supra at 983. '-

y ALAB-551, supra.

-. _ _ - . . _ - _ ___- - = .

i . forth when a presiding officer's jurisdiction over an entire proceeding will terminate. The North Anna decision tells us, however, that "finali-

, . 6 .-

. ty".can_ attach to some but not all of the issues in a case. North Anna, ALAB-551, supra, at 707. Accordingly, while a board's jurisdiction may not be " wholly" terr..inated it may be terminated on some of the issues.

~

This was the case here with respect to seismic design considerations when the Joint Intervenors filed their motion. Even though the full power i proceeding was still in progress when the Joint Intervenors filed their

$ motion, when the Comission declined to review ALAB-644 (in 1982) the matter of seismic design of the Diablo Canyon facility became final and

- - terminated the Appeal Board's jurisdiction on that issue.

3. The Joint Inte'rvenors' third argument, that there is a "close nexus" between the new information submitted by the Joint Intervenors and the issues remaining before the Appeal Board when their motion was filed, f

also falls short. Petition at 4. They have failed to show the existence I of the necessary relationship between the issues before the Appeal Board

in the full power appeal and their new information on the seismic desigri

! of the facility. As the Appeal Board stated in North Anna:

Where, as here, finality has attached to some but not all -

issues, appeal board jurisdiction to entertain new matters fs deperdent upon the existence of a " reasonable nexus" betwpn those matters and the issues remaining before the board. J It is true, as the Appeal Board noted, that it had before it at the time the Motion was filed two issues that in some way involve the effects l* '

o'f' earthquakes: the Licensino Board's failure to consider (1) the ef-9f ALAB-551, supra, at 707.'

_ . ._ . _ . _ _ _ _.._.__.__.1_.--___.____._..-___ __________ _ _ _ _ _ _

~

facts upon emergency planning of a major earthquake, and (2) the alleged

~

special circumstances of earthquake potential at Diablo Canyon as a basis t -

for analyzing the environmental effects of Class 9 accidents'. E However, af the Appeal Board correctly notes, these issues "are not re-lated to the seismic design of the facility". N The Joint Intervenors',

- motion, on the other hand, by its very terms does directly concern the seismic design of the facility. E Accordingly, the necessary

" reasonable nexus" does not exist between the information submitted in the Joint Intervenors' motion and the issues that remained before the Appeal Board when the motion was filed.

4.- Finally, citing the Limerick decision E the Joint Intervenors _

' note that the Appeal Board's familiari'ty with the issues is a factor in determining the Appeal Board's jurisdiction. Petition at 5. The facts of the Limerick case are not at all similar to the facts in the instant

case. In Limerick the equivalent to a motion to reopen was filed on the .

sarre day that the Licensing Board issued its partial initial decision. D Accordingly, the question raised was which of the boards ~ \

\

l g See ALAB-702, 20 NRC , slip op. at 6, n.10 (September 6, 1984).

l 1,l/ Jd.at6(emphasissupplied).

l 12/ Id.; see Joint Intervenors' Motion to Reopen the Record on Seismic i T.. Thues, dated July 16, 1984, at I and 2.

J3/ Philadelphia Electric Co. (Limerick Generating Station. Units 1 and 2), ALAB-726, 17 NRC 755 (1983). ~

l J4/ Jd,.at757.

l

(Licensing Board or Appeal Board), each possibly having jurisdiction, sfiould initially assert that jurisdiction to consider the motion. The question of finality as is present in this proceeding simpli did not

.arise in the Limerick proceeding at all. The Appeal Board in Limerick 4

held that until exceptions have been filed or 5:hore no exceptions have

' - been filed within the time allowed and the Appeal Board has neither com-plated its sua sponte review nor extendec the time for doing so, juris-diction to rule on a motion to reopen lies with the Licensing Board. El Relying on common sense in "the absence of any clear administrative guidance" El the Appeal Board , in Limarick, stated that the Licensing Board, due to its involvement in the case would be better suited to rule on the motion. E But, as noted above, the facts in the instant case are not at all similar. Here the Commission has declined review of

- ALAB-644 which thus became final and unlike the situation in Limerick, there is here clear " administrative guidance" - when the Comission de-clines to review an Appeal Buard decision, a final agency determination has been ir.ade resulting in termination of jurisdiction. E Accordingly, i the Appeal Board here was simply without jurisdiction to entertain the l

motion to reopen on seismic issues regardless of its familiarity.with the ,

I matters involved. In this circumstance, familiarity with the issues is I

i - an irrelevant consideration.

El. Er l.'

1 g/'Id.at758.

E/ M.

i H/ Three Mile Island, ALAB-766, supra at 983.

r

. g.

- IV. CONCLUSION L _.

For the reasons stated above, Joint Intervenors' Petition for Review of ALAB-782 fails to establish the existence of any important issue of law or policy warranting Commission review and, therefore, should be denied. E --

Respectfully submitted,.

l-

--~

h Jf Ml:Gurren Coun[er for NRC Staff _

Dated at Bethesda, Maryland this 12th day of October, 1984 .

s 19/ In any event, notwithstanding the jurisdictional bar resulting from ine ' rule of finality, Joint Intervenors did not satisfy the tradi-

.tional standards applicable to reopening the record. As reflected in the "NRC Staff's Answer to Joint Intervenors' Motion to Reopen -

~

the Record on Seismic Issues", the Staff had considered this new information in light of the standards for reopening a record and concluded that the Joint Intervenors have not demonstrated that the-new information is significant or wculd affect the Appeal Board's decision in ALAB-644. See NRC Staff's Answer to Joint Intervenors' l

Motion to Reopen the Record on Seismic Issues, dated August 1,1984, with the attached Joint Affidavit of Robert L. Rothman, Richard.B.

' McMullen, Leon Reiter and Stephan J. Brocoum. See also CLI-84-13, ,

'20 NRC , slip op, at 14-19 (August 10,1984), where the Commis.

sion denied Joint Intervenors' request for a stay based on seismic' issues. -

~

e I

l l

l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  !

- BEFORE THE COMMISSION ,

, In the Matt,er of i PACIFIC GAS AND ELECTRIC COMPANY Docket Nos. 50-275 OL 50-323 OL (Diablo Canyon Nuclear Power Plant Units 1 and 2) i CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO JOINT INTERVENORS' PETITION FOR REVIEW 0F ALAB-782" in the above-captioned proceeding have been served on the following by deposit in the United States mail first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this 12th day of October 1984:

Samuel J. Chilk John F. Wolf. Esq., Chairman

Office of the Secretary Administrative Judge .

U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Panel Washington, DC 20555* U.S. Nuclear Reguiatory Comission Washington, DC 20555*

Herzel H. E. Plaine. Esq. Mr. Glen O. Bright .

General Counsel Administrative Judge Office of thi General Counsel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comissions Washington, DC 20555* Washington, DC 20555*

i Dr. W. Reed Johnson Dr. Jerry Kline '

Atomic Safety and Licensing Appeal Administrative Judge Board Panel Atomic Safety and Licensing Board Panel U'S.. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555* Washington, DC 20555*

Thomas S. Moore, Chairman Philip A. Crane, Jr., Esq.

Atomic Safety and Licensing Appeal P.O. Box 7442 Board Panel San Francisco. CA 94106 U.S. Nuclear Regulatory Comission Washing'on, t DC 20555* Mr. Frederick Eissler Scenic Shoreline Preservation i

~-

j- Mrs. Raye Fleming Conference. Inc.

1920 Mattie Road / 4623 More Mesa Drive ,

Shell Beach, CA 93449 Santa Barbara, CA 93105-i Elizabeth Apfelberg David S. Fleischaker Esq.

1415 Cozadero P.O. Box 1178 San Luis Obispo, CA 93401 Oklahoma City. OK 73101 .

i* ,

Richard E. Blankenburg, Co,-publisher Wayne A. Soroyan, News Reporter Mr. John Marrs, Managing Editor South County Publishing Company San Luis Obispo County P.O. Box 460 .

Telegram-Tribune -

Arroyo Grande, CA 93420 1321 Johnson Avehue P.O. Box 112 Mr. Gordon Silver San Luis Obispo, CA 93406

< Mrs. Sandra A. Silver Mr. Thomas H. Harris,. Energy Writer 1760 Alisal Street San Jose Mercury News San Luis Obispo, CA 93401 750 Ridder Park Drive Joel R. Reynolds. Esq. San Jose, CA 95190 John R. Phillips Esq.

Mr. Lee M. Gustafson Center for Law in the Public Interest Pacific Gas and Electric Co.

10951 West Pico*Boulevard 1050-17th Street, N.W.

Third Floor Washington, D.C. 20036-5574 Los Angeles, CA 90064 Docketing and Service Section Arthur C. Gehr. Esq. Office of the Secretary Snell & Wilmer U.S. Nuclear Regulatory Comission 3100 Valley Center . Washington, DC 20555*

Phoenix, AR 85073 Mr. H. Daniel Nix Atomic Safety and Licensing Buard Panel California Energy Comission U.S. Nuclear Regulatory Comission MS-17 Washington, D.C. 20555* 1516 9th Street Sacramento, CA 95814 Harry M. Willis Seymour & Willis Atomic Safety and Licensing Appeal 601 California St., Suite 2100 Board Panel San Francisco, CA 94108 U.S. Nuclear Regulatory Comission Washington, D.C. 20555* ,

4 Janice E. Kerr, Esq.

Lawrence Q. Garcia. Esq. Lewis Shollenberger I

350 McAllister Street Regional Counsel San Francisco, CA 94102 USNRC, Region V l 1450 Maria Lane, Suite 201 Mr'. J. D. Shiffer, Vice President Walnut Creek, CA 94596 Nuclear Power Generation c/o Nuclear Power Generation, Licensing Nichael J. Strumwasser, Esq.

Pacific Gas & Electric Company Susan L. Durbin, Esq.

77 Beale Street, Room 1451 Peter H. Kaufman, Esq.

I San Francisco, CA 94106 3580 Wilshire Blvd., Suite 600 Los Angeles, CA 90010

(.

Bruce Norton, Esq.

Norton, Burke, Berry & French, P.C. Mr. Richard B. Hubbard 2002 E. 1sborn Road MHB Technical Associates .

P. O. Box 10569 -

~

1723 Hamilton Avenue-Suite K l San Jose, CA 95125

. Phoenix, AZ 85064

.1 v --- --

H nry J.McGurren' CounsMor NRC Staff l

_ _ - _ - _ - - _

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