ML20236C248

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Memorandum & Order.* Hearing Should Be Held to Determine Whether Const Activities of Facilities Should Be Suspended Pending Completion of NEPA Review.Notice of Hearing & Certificate of Svc Encl
ML20236C248
Person / Time
Site: Diablo Canyon, 05000000
Issue date: 04/21/1972
From: Mccool W
US ATOMIC ENERGY COMMISSION (AEC)
To:
PACIFIC GAS & ELECTRIC CO., SCENIC SHORELINE PRESERVATION CONFERENCE, INC., US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML20236A877 List: ... further results
References
FOIA-87-214 NUDOCS 8707290383
Download: ML20236C248 (10)
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Text

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION' COMMISSIONERS :

James R. Schlesinger, Chairman .  :.;

James T. Ramey Wilfrid E. Johnson Clarence E. Larson  ;

William 0. Doub IN THE MATTER OF PACIFIC GAS & ELECTRIC COMPANY DOCKET NOS. 50-275 (Diablo Canyon Nuclear Power Plant 50-323 Units 1 and 2).

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MEMORANDUM AND ORDER On December 7,1971, the Commission's Director of Regulation (Director) publi.shed in the Federal Register (36 F.R. 23265) his deter- i mination under 10 CFR Part 50, Appendix D, Section E, that, with certain exceptions, construction of the Diablo Canyon- Nuclear Power Plant,-

Units 'l and 2 (authorized pursuant to Construction Permits CPPR-39 and CPPR-69) should not be suspended pendin'g completion of the environ-mental review under the National Environmental. Policy Act of 19C9 (NEPA).

The Federal Register notice also provided that persons whose interests  ;

may be affected could request a hearing. A request was filed on  !

December 30, 1971, by the Scenic Shoreline Preservation Conference, Inc., (petitioner). The request alleged, inter alia, that' geothermal power is available as an alternative source of power to meet the needs - .

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2 to be served by the units involved; that continued construction of the units and associated transmission lines would result in severe environ-mental impact; and that further evaluation of the seismic design of the units is essential. The request is opposed by the licensee. The ]

regulatory staff states that a hearing would be appropriate but it re-i quests that the contention regarding seismic design be excluded from I hearing consideration. .

1 We conclude that a hearing is warranted and that a hearing will I l

be held on the question whether construction activities under the con- )

l struction permits for the Diablo Canyon Nuclear Power Plant Units 1 and i j

2, should be suspended pending completion of the ongoing NEPA review.

For purposes of this proceeding on the above question, parties shall be the licensee, the Regulatory Staff and the petitioner.

I In this regard, on April 7,1972, the United States Court of Appeals for the District of Columbia Circuit remanded the record of a determina-l tion made in another case under 10 CFR Part 50, Appendix D, Section E.

Coalition for Safe Nuclear Power, et al. v. United States Atomic Energy, Commission, D.C. Cir., No. 71-1396. Noting that the utilities there would contnit substantial financial resources in proceeding with construction pending completion of NEPA review, the Court stated that the Commission should consider certain additional matters in the context of balancing environmental harm and economic cost of abandonment. The Court stated:

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"On remand, the Commission should consider in detail whether this additional irretrievable commitment of substantial resources might affect the eventual decision reached on ,

the N.E.P. A. review. The degree to which this expenditure might affect the outcome of the final N.E.P.A. process should {

be a paramount consideration in the decision on suspension reached after the hearings on remand."

l The matters to be considered in this hearing shall be the factors specified in 10 CFR Part 50, Appendix D, Section E.2, together with the considerations specified in the Court's remand.

I As respects petitioner's seismic design contention, this is the i very same allegation which petitioner advanced during the construction ,

permit hearings for Unit 2. The seismic design for Unit 2 was found to be adequate by the Atomic Safety and Licensing Board. That decision was reviewed and upheld by the Atomic Safety and Licensing Appeal Board --

once upon exceptions taken by the petitioner and again upon a petition for reconsideration largely involving the same material presented by the instant request. In these circumstances, we see no warrant in con-sidering the question of the adequacy of the seismic design for still another time. While the seismic design contention was earlier raised in connection with Unit 2, the Licensing Board, of course, independently reviewed the seismic design for Unit 1 -- which is located at the same site and utilizes the same criteria -- and found the design to be adequate.

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. 4 A hearing notice implementing this decision, and reflecting the need for expedition of this proceeding, is appended hereto as Attachment A.

By the Comission.

W. B. McCbol /

Secretary of the Comission

Attachment:

Notice of Hearing Dated at Germantown, Maryland this 21st day of April ,1972.

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Attachment A UNITED STATES OF AMERIt,A ATOMIC ENERGY COMMISSION In the Matter of PACIFIC GAS & ELECTRIC COMPANY ) DOCKET NOS. 50-275 (Diablo Canyon Nuclear Power ) 50-323 Plant, Units 1 and 2) )

NOTICE OF HEARING ON SUSPENSION OF CONSTRUCTION ACTIVITIES AT THE DIABLO CANYON NUCLEAR POWER PLANT, UNITS 1 and 2, AUTHORIZED PURSUANT TO CPPR-39 and CPPR-69 PENDING COMPLETION OF NEPA ENVIRONMENTAL REVIEW l On December 7,1971, the Director of Regulation of the Atomic Energy i

' l Comission published in the FEDERAL REGISTER, 36 F.R. 23265, pursuant to l 10 CFR Part 50, Appendix D, Section E, a detennination with certain exceptions, not to suspend construction activities at the Diablo Canyon Nuclear Power Plant, Units 1 and 2, pending completion of an environmental j review under the Comission's regulations implementing the National Environ-1/

mental Policy Act of 1969 (NEPA),10 CFR Part 50, Appendix D.~ A request for a hearing was filed on December 30, 1971 , by the Scenic Shoreline 4 PreservationConference,Inc.(petitioner).

l Upon analysis of the request and the responses filed by the Regulatory I

Staff and the Pacific Gas & Electric Company (licensee), it has been deter-mined'by Memorandum and Order dated April 21, 1972, that a hearing is 1/ Construction of these Units is authorized by Construction Permits Nos. CPPR-39 and CPPR-69.

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2 warranted and that a hearing will be held. Accordingly, pursuant to 10 CFR Part 50, Appendix D, Section E.4(b) and 52.7b3 of the Commission's

" Rules of Practice",10 CFR Part 2, notice is hereby given that a hearing will be held at a time and place to be announced by the Atomic Safety and Licensing Board specified below, and published in the FEDERAL REGISTER.

The issue to be considered at the hearing will be whether the activities 'under the construction permits for the Diablo Canyon Nuclear Power Plant, Units 1 and 2, should be suspended pending completion of the NEPA envir'onmental review. In resolving that issue, the following criteria should be considered and balanced:

Criteria (a) Whether it is likely that continued construction during the review period will give rise to a significant adverse impact l on the environment; the nature and extent of such impact, if any; and whether redress of any such adverse environmental impact can reasonably be effected should modification, suspen-sion or termination of the permit or license result from the ongoing NEPA review.

(b) Whether continued construction during the prospective review period would foreclose subsequent adoption of alternatives in facility design or operation of the type that could result from the ongoing NEPA environmental review.

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(c) The effect of delay in facility construction or operation upon j the public interest. Of primary importance under this criterion are the power needs to be served by the facility; the availability 1

of alternative sources, if any, to meet those needs on a timely basis; and delay costs to the licensee and to consumers. l l

(d) In the context of balancing environmental harm and economic i i

cost of abandonment, a paramount consideration shall be whether the commitment of substantial financial resources, in pro-ceeding with construction pending completion of the NEPA review, l

might affect the eventual decision reached on that review; and, if so, the degree to which such an effect might occur.

l The Licensing Board shall render a de, novo decision based upon the criteria above. The burden of proof shall be upon the licensees.

For purposes of this proceeding, on the question whether activities under the construction permits should be suspended pending completion of NEPA review, the parties shall be the licensee, the Regulatory Staff and the petitioner. An answer shall be filed by the licensee within three days of the date of publication of this notice following 10 CFR 52.705 to the extent appropriate. A reply to an answer may be filed within three days after it is served.

2] See Coalition for Safe Nuclear power, et al. v. U.S. A.E.C. ,

D.C. Ci r. , No. 71-1396.

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Papers required to be filed in this proceeding may be filed by mail or telegram addressed to the Secretary of the Comission, United States Atomic Energy Commission, Washington, D.C. 20545, Attention: Chief, Public Proceedings Branch, or may be filed.by delivery to the Commission's Public Document Room,1717 H Street, N.W. , Washington, D.C. Pending furtha order of the Board, parties are required to file, pursuant to the provisions I

of 10 CFR 52.708 of the Comission's " Rules of Practice", an original and twenty conformed copies of each such paper with the Commission.

A copy of the Director of Regulation's determination and the accompanying staff discussion and findings are available for inspection I by members of the public in the Commission's Public Document Room,1717 H Street , N.W. , Washington , D.C. Copies of those documents are also available at the San Luis Obispo County Free Library,1354 Bishop Street, San Luis

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Obispo, California, between the hours of 8:00 a.m. and 5:00 p.m., Monday through ' Friday.

We direct that all matters involving the above question be concluded with utmost expedition so that final decision will be reached within sixty days of publication of this notice. For these purposes, the proceeding shall be conducted under the following requirements:

1. The hearing will' be held before an Atomic Safety and Licensing Board (Licensing Board) composed of the following members:

Dr. Franklin C. Daiber, Dr. M. Stanley Livingston, and l

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, 5 Michael Glaser, Esq., Chairman. Pursuant to 10 CFR 52.785(a)(1),

the Commission hereby delegates to the Atomic Safety and Licensing Appeal Board (Appeal Board) the authority and the review function l which would otherwise be exercised and performed by the Commission.

The Appeal Board shall be composed of the following members:

Dr. John H. Buck, Dr. Lawrence R. Quarles , and Algie A. Wells ,

Esq., Chairman.

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2. The Licensing Board shall render its initial decision within forty

. days from the date of publication of this notice. In order to '

meet this schedule, the Licensing Board shall conduct the hearing as soon as possible.

I 3. The Licensing Board's initial decision shall constitute the final decision of the Commission unless exceptions are filed I

within five days after its date or unless, within the same time period, the Appeal Board or Corrmission directs that the record be certified to it for. final decision.

Insofar as this notice and these requirements reflect shortening of tire periods otherwise prescribed in 10 CFR Part 2, we find good cause for such j action under 10 CFR 52.711 and 10 CFR Part 50, Appendix 0, Section E.4(c).

We further note that the authority of 10 CFR 52.711 also extends to the l

Licensing Board.

By the Commission.

W. B. McCool W /

Secretary of the Commission j Datti: April 21, 1972 l l

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, AT0 HIC ENi:.RJY COMtilSSION -

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PACIFIC GAS AND ELECTitIC Co.)

//- A /- 7P , l CERTIFICATE OF SERVICE 1

I hereby certify that ecpies of the Commissicn MF2fER DUM AND ORDER ated Aoril 21, 1972 with Attached Nctice of Hearing were rerved en .- c'.ilcuing

.by denosit in the United States mail as first class oi air mail this

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21st day of April,1972: ,

I hichael Glaser, Esq, Chairman Dr. Franklin C. Daiber Atcmic Safety and Licensing Board Dept. cf Biological Sciences 1150 17th Street, N. W. Univerrity cf Delaware hashington, D. C. 20036 Newark, Delaware 19711 Dr. & "3tanley Livingsten Joseph Scinto, Esq.

1005 Calle Largo hegulatcry Staff Counsel Santa Fe,i<ew r.exico 67501 U; . S. Atemic Energy Commiesion Washington, D. C. 20$h$

ailip a. Crane, Jr., tsq. '-

3 Pacific Jas & Electric Co. hr. Frederick Eicler, President l 2h5 harket c;treet San francisco, Calif. 9ul06 Scenic Shoreline Preservation Conf.

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h623 Mere hexa Drive Er. Ian 1. heisillan Santa Barbara, Calif.

dcx 63 93105 1 Sr anden, California 93h16 Dr. John M. Heelep, Chief 1 l

Elren 1. KidweJ1, Chairman Environmental Health and Consuner }

l Protecticn Program San'Luise Obispe County Bd. cf Dept. cf Public Health surarvis c rs 2151 Berleley Way -

  • Ccunty Ccurthouse Berkeley, Calif.

.5an Luish Obispo, Calif. 9h70h 93h01  !

i.ttnrney General Mr. Hal Strcube, Manager of Public  !

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tr te of California Luigi Marre Land and Cattle Co. l Sacrcrento, Calif. 95Sh1 j San Luis Obisoo Bay Prcperties, Inc. '

Avila Beach, Calif, 93h2h 1

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