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i DOCKETED UNITED STATES OF AMERICA             MCC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD SECREU ''
i DOCKETED UNITED STATES OF AMERICA MCC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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JOINT INTERVENORS' SUPPLEMENTAL BRIEF IN SUPPORT OF REQUEST FOR REVERSA                 [[f . "
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OF ATOMIC SAFETY AND LICENSING BOARD'S AUGUST 4,     1981 MEMORANDUM AND ORDER On October 8, 1981, Joint Intervenors filed with the Commission a Request for Directed Certificrtion seeking immediate review of the Atomic Safety and Licensing Board's (" Licensing Board") August 4, 1981 Memorandum and Order tegarding admissibility of Joint Intervenors' contention.- in the full power proceeding. On October 29, the Commission referred that application to the Atomic Safety and Licensing Appeal Board
JOINT INTERVENORS' SUPPLEMENTAL BRIEF IN SUPPORT OF REQUEST FOR REVERSA
(" Appeal Board") for prompt review.       By order dated the same day, the Appeal Board established an expedited briefing schedule and set
((f. "
OF ATOMIC SAFETY AND LICENSING BOARD'S AUGUST 4, 1981 MEMORANDUM AND ORDER On October 8, 1981, Joint Intervenors filed with the Commission a Request for Directed Certificrtion seeking immediate review of the Atomic Safety and Licensing Board's
(" Licensing Board") August 4, 1981 Memorandum and Order tegarding admissibility of Joint Intervenors' contention.- in the full power proceeding.
On October 29, the Commission referred that application to the Atomic Safety and Licensing Appeal Board
(" Appeal Board") for prompt review.
By order dated the same day, the Appeal Board established an expedited briefing schedule and set
* oral argument for November 19, 1981 in Bethesda, Maryland.
* oral argument for November 19, 1981 in Bethesda, Maryland.
Joint Intervenors hereby supplement their previous application in support of the full power contentions rejected by the licensing board.       As this Appeal Board recognized in its October 29 Order, however, substantial pleadings have already been filed regarding the admissibility of those contentions, and 0111180387 811106                                       )
Joint Intervenors hereby supplement their previous application in support of the full power contentions rejected by the licensing board.
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As this Appeal Board recognized in its October 29 Order, however, substantial pleadings have already been filed regarding the admissibility of those contentions, and 0111180387 811106
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b hence it is neither necessary nor would it be useful for Joint-Intervenors to reiterate at, length the arguments, both factual and legal, which have been'made to the licensing board and to the Commission. Indeed,.given the expedited nature of the briefing schedule, extensive rebriefing is infeasible.
b hence it is neither necessary nor would it be useful for Joint-Intervenors to reiterate at, length the arguments, both factual and legal, which have been'made to the licensing board and to the Commission.
Therefore, Joint Intervenors incorporate by reference their October 8th Request for Directed Certification, together with the supporting documentation and analysis attached thereto as exhibits. In the Request itself, the March 24, 1981 Motion to Reopen (Exhibit B), the June 30, 1981 Statement of Clarified Contentions (Exhibit C) , and the August 14, '981 Notice of Objections (Exhibit D) , Joint Intervenors have comprehensively addressed the factual and legal bases for the contentions,1/ the significance of the issues raised,S/ the interpretation of the Commission's guidelines governing the admission of TMI-related contentions,S/ the standards for late-filing of contentions and reopening the record and their application in this 1/   Motion to Reopen, at 11-74; Statement of Clarified Contentions, at 6-18; Notice of Objections, at 2-7; Request for Directed Certification, at 8-24.
Indeed,.given the expedited nature of the briefing schedule, extensive rebriefing is infeasible.
S!   Motion to Reopen, at 11-48; Statement of Clarified Contentions, at 6-18; Notice of Objections, at 2-7; Request for Directed Certification, at 9-24.
Therefore, Joint Intervenors incorporate by reference their October 8th Request for Directed Certification, together with the supporting documentation and analysis attached thereto as exhibits.
s
In the Request itself, the March 24, 1981 Motion to Reopen (Exhibit B), the June 30, 1981 Statement of Clarified Contentions (Exhibit C), and the August 14, '981 Notice of Objections (Exhibit D), Joint Intervenors have comprehensively addressed the factual and legal bases for the contentions,1/ the significance of the issues raised,S/
!            S!   Motion to Reopen, at 56-72; Notice of Objections, at 2-7; Request for Directed Certification, at 2-24.
the interpretation of the Commission's guidelines governing the admission of TMI-related contentions,S/ the standards for late-filing of contentions and reopening the record and their application in this 1/
;
Motion to Reopen, at 11-74; Statement of Clarified Contentions, at 6-18; Notice of Objections, at 2-7; Request for Directed Certification, at 8-24.
S!
Motion to Reopen, at 11-48; Statement of Clarified Contentions, at 6-18; Notice of Objections, at 2-7; Request for Directed Certification, at 9-24.
s S!
Motion to Reopen, at 56-72; Notice of Objections, at 2-7; Request for Directed Certification, at 2-24.
l
l


Line 58: Line 77:
As is apparent from even a cursory review of the record herein, Joint Intervenors' contentions and their supporting documentation are :.xceptionally detailed and compelling.
As is apparent from even a cursory review of the record herein, Joint Intervenors' contentions and their supporting documentation are :.xceptionally detailed and compelling.
Each of the contentions rejected by the board arises out of the TMI-2 accident, is based upon significant new information recognized in numerous studies and reports issued since the accident (and cited extensively in Joint Intervenors' 76-page motion in support of the contentions),
Each of the contentions rejected by the board arises out of the TMI-2 accident, is based upon significant new information recognized in numerous studies and reports issued since the accident (and cited extensively in Joint Intervenors' 76-page motion in support of the contentions),
and is intended to assure that such information is adequately considered and applied at Diablo Canyon prior to full power operation. Consistent with the Commission's TMI-related guidance, Joint Intervenors explicitly related each of the contentions not only to the TMI accident, but also to Commission regulations and specific NUREG-0694 and NUREG-0737 requirements bearing on the same safety concerns.5/   In addition, to assure the requisite specificity, Joint A! Motion to Reopen, at 11-56; Request for Directed Cerhification, at 22-23; Prehearing Conference Transcript, at 11,397-11,402 (July 1,1981) ; Response to Requests for Directed Certification, at 36-72 (March 26, 1981); see also Statement of Clarified Contentions, at 6-18; Notice of Objections, at 3-6; Request for Directed Certification, at 8-22.
and is intended to assure that such information is adequately considered and applied at Diablo Canyon prior to full power operation.
E/ Notice of Objections, at 1-7; Request for Directed Certification, at 1-22.
Consistent with the Commission's TMI-related guidance, Joint Intervenors explicitly related each of the contentions not only to the TMI accident, but also to Commission regulations and specific NUREG-0694 and NUREG-0737 requirements bearing on the same safety concerns.5/
5   See In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-     ,
In addition, to assure the requisite specificity, Joint A!
NRC       (April 1, 1981).
Motion to Reopen, at 11-56; Request for Directed Cerhification, at 22-23; Prehearing Conference Transcript, at 11,397-11,402 (July 1,1981) ; Response to Requests for Directed Certification, at 36-72 (March 26, 1981); see also Statement of Clarified Contentions, at 6-18; Notice of Objections, at 3-6; Request for Directed Certification, at 8-22.
!                                         L
E/
Notice of Objections, at 1-7; Request for Directed Certification, at 1-22.
5 See In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-NRC (April 1, 1981).
! L


o Intervenors tied each contention to Diablo Canyon site-specific information, including, where relevant, the reactor design,.NRC safety evaluation reports, and applicant submittals.2/-
o Intervenors tied each contention to Diablo Canyon site-specific information, including, where relevant, the reactor design,.NRC safety evaluation reports, and applicant submittals.2/-
In rejecting all but, one of Joint Intervenors' contentions,'however, the Licensing Board failed even to acknowledge the vast majority of the information submitted and issues raised. Apparently in a misguided effort to accelerate the Diablo Canyon licensing process, the Licensing Board, through its brief ll-page Order, has in effect " swept under the carpet" each of the critical safety issues raised by Joint Intervenors in the aftermath of the TMI accident. In so doing, the board has distorted the applicable standards for admission of a TMI-related contention virtually beyond recognition. Indeed, if the board's almost total denial of contentions in this proceeding is deemed consistent with the Commission's TMI-related guidance, it is difficult to foresee any instance in which TMI-related issues could be found admissible in any proceeding.
In rejecting all but, one of Joint Intervenors' contentions,'however, the Licensing Board failed even to acknowledge the vast majority of the information submitted and issues raised.
Reversal of the Licensing Board's Order is essential, therefore, to preserve the integrity of the licensing process and to set this proceeding back on track. Moreover, it is both       >
Apparently in a misguided effort to accelerate the Diablo Canyon licensing process, the Licensing Board, through its brief ll-page Order, has in effect " swept under the carpet" each of the critical safety issues raised by Joint Intervenors in the aftermath of the TMI accident.
warranted and necessary in order to obtain a fair application of the Commission' TMI-related policy guidance and precedent, a 2/   Motion to Reopen, at 16-49; S'tatement of Clarified Contentions, at 6-18.
In so doing, the board has distorted the applicable standards for admission of a TMI-related contention virtually beyond recognition.
a
Indeed, if the board's almost total denial of contentions in this proceeding is deemed consistent with the Commission's TMI-related guidance, it is difficult to foresee any instance in which TMI-related issues could be found admissible in any proceeding.
Reversal of the Licensing Board's Order is essential, therefore, to preserve the integrity of the licensing process and to set this proceeding back on track.
Moreover, it is both warranted and necessary in order to obtain a fair application of the Commission' TMI-related policy guidance and precedent, a 2/
Motion to Reopen, at 16-49; S'tatement of Clarified Contentions, at 6-18. a


proper disposition of Joint Intervenors' contentions, and, ultimately, the most expeditious resolution of this proceeding.
proper disposition of Joint Intervenors' contentions, and, ultimately, the most expeditious resolution of this proceeding.
As stated by Commissioner Gilinsky in connection with the Commission's September 21, 1981 Memorandum and Order in this proceeding:
As stated by Commissioner Gilinsky in connection with the Commission's September 21, 1981 Memorandum and Order in this proceeding:
Discipline, competence, and thoroughness are essential to the integrity of our licensing process. The Commission's regulations are intended to insure due process and procedural fairness and to insure that initial decisions are of high quality. Cutting corners in a micguided effort to accelerate a hearing can result in a procedural morass and a decision which fails to survive appellate review.
Discipline, competence, and thoroughness are essential to the integrity of our licensing process.
In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-22,     NRC   ,
The Commission's regulations are intended to insure due process and procedural fairness and to insure that initial decisions are of high quality.
Separate Opinion of Commissioner Gilinsky, at 3-4 (September 21, 1981).
Cutting corners in a micguided effort to accelerate a hearing can result in a procedural morass and a decision which fails to survive appellate review.
In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-22, NRC Separate Opinion of Commissioner Gilinsky, at 3-4 (September 21, 1981).
Accmrdingly, for the reasons stated in their October 8, 1981 Request for Directed Certification and Exhibits B,C, and D thereto, Joint Intervenors respectfully urge this Appeal Board to reverse the Licensing Board's August 4, 1981 denial of
Accmrdingly, for the reasons stated in their October 8, 1981 Request for Directed Certification and Exhibits B,C, and D thereto, Joint Intervenors respectfully urge this Appeal Board to reverse the Licensing Board's August 4, 1981 denial of
      ///
///
      ///
///
      ///
///
contentions and direct that they be admitted for hearing in-this proceeding.
contentions and direct that they be admitted for hearing in-this proceeding.
DATED: November 6, 1981       Respectfully submitted, JOEL R. REYNOLDS, ESQ.
DATED: November 6, 1981 Respectfully submitted, JOEL R. REYNOLDS, ESQ.
JOHN R. PHILLIPS, 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.
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     ,
-P. O. Box 1178 Oklahoma City, OK 73101 By REYdDLfS pLR.
pLR. REYdDLfS Attorneys for Joint-Inter-
Attorneys for Joint-Inter-
                                      .venors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
.venors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APFELBERG JOHN J. FORSTER
ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APFELBERG JOHN J. FORSTER e
                                                                          ;
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
                                            )
In the Matter of
In the Matter of                 )
)
                                            )
)
PACIFIC GAS AND ELECTRIC COMPANY )     Docket Nos. 50-275 0.L.
PACIFIC GAS AND ELECTRIC COMPANY )
                                            )                 50-323 0.L.
Docket Nos. 50-275 0.L.
(Diablo Canyon Nuclear Power     )
)
Plant, Units 1 and 2)             )
50-323 0.L.
                                            )
(Diablo Canyon Nuclear Power
                                            )
)
Plant, Units 1 and 2)
)
)
)
CERTIFICATE OF SERVICE I hereby certify that on this 6th day of November, 1981, I have served copies of the foregoing BRIEF IN SUPPORT OF REQUEST FOR REVERSAL OF ATOMIC SAFETY AND LICENSING BOARD'S AUGUST 4, 1981 MEMORANDUM AND ORDER, mailing them through the U. S. mails, first class, postage prepaid.
CERTIFICATE OF SERVICE I hereby certify that on this 6th day of November, 1981, I have served copies of the foregoing BRIEF IN SUPPORT OF REQUEST FOR REVERSAL OF ATOMIC SAFETY AND LICENSING BOARD'S AUGUST 4, 1981 MEMORANDUM AND ORDER, mailing them through the U. S. mails, first class, postage prepaid.
Admin. Judge John F. Wolf,
Admin. Judge John F. Wolf,
* Docket & Service Branch Chairman                           Office of the Secretary Atomic Safety & Licensing             U.S. Nuclear Regulatory Board                                 Commission U. S. Nuclear Regulatory             Washington, D.C. 20555 Commission Washington, D.C. 20555
* Docket & Service Branch Chairman Office of the Secretary Atomic Safety & Licensing U.S. Nuclear Regulatory Board Commission U. S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
* William Olmstead, Esq.
* William Olmstead, Esq.
Marc R. Staenberg, Esq.
Marc R. Staenberg, Esq.
Glenn O. Bright                       Edward G. Ketchen, Esq.
Glenn O. Bright Edward G. Ketchen, Esq.
Atomic Safety & Licensing             Office of the Executive Legal Board                                 Director - BETH 042 U S. Nuclear Regulatory               U.S. Nuclear Regulatory Commission                         Commission Washington, D.C. 20555               Washington, D.C. 20555
Atomic Safety & Licensing Office of the Executive Legal Board Director - BETH 042 U S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555
* Express Mail L
* Express Mail L


4 Dr. Jerry R. Kline               Nancy Culver Atomic Safety & Licensing         192 Luneta Board                         San Luis Obispo, CA     93401 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Fredrick Eissler             *Malcolm H. Furbrush, Esq.
4 Dr. Jerry R. Kline Nancy Culver Atomic Safety & Licensing 192 Luneta Board San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission Washington, D.C.
Scenic Shoreline Preservation     Vice President and General Conference, Inc.                 Counsel 4623 More Mesa Drive             Philip A. Crane, Esq.
20555 Mr. Fredrick Eissler
Santa Barbara, CA   93105       Pacific Gas & Electric Company 77 Beale St., 3lst Floor Sandra A. Silver                 San Francisco, CA 94106 Gordon Silver 1760 Alisal Street               Arthur C. Gehr, Esq.
*Malcolm H. Furbrush, Esq.
San Luis Obispo, CA   93401     Snell & Wilmer 3100 Valley Center David S. Fleischaker, Esq.       Phoenix, AZ 85073 P. O. Box 1178 oklahoma City, OK 73101           Carl Neiburger Telegram Tribune
Scenic Shoreline Preservation Vice President and General Conference, Inc.
* Bruce Norton, Esq.               P. O. Box 112 3216 N. Third Street             San Luis Obispo, CA     93402 Suite 202 Phoenix, AZ 85012                 Byron Georgiou, Esq.
Counsel 4623 More Mesa Drive Philip A. Crane, Esq.
Legal Affairs Secretary to Janice E. Kerr, Esq.                 the Governor Lawrence Q. Garcia, Esq.         State Capitol Building J. Calvin Simpson, Esq.           Sacramento, CA     95814 California Public Utilities Commission                     Lawrence Coe Lanpher, Esq.
Santa Barbara, CA 93105 Pacific Gas & Electric Company 77 Beale St.,
5246 State Building             Hill, Christopher & Phillips 350 McAllister Street             1900 M. Street, N.W.
3lst Floor Sandra A. Silver San Francisco, CA 94106 Gordon Silver 1760 Alisal Street Arthur C. Gehr, Esq.
San Francisco, CA 94102           Washington, D.C. 20036 MHB Technical Associates         *Dr. John H. Buck 1723 Hamilton Avenue             Atomic Safety & Licensing Suite K                             Appeal Board San Jose, CA   95725             U.S. Nuclear Regulatory Comm'n.
San Luis Obispo, CA 93401 Snell & Wilmer 3100 Valley Center David S. Fleischaker, Esq.
Washington, D.C. 20055
Phoenix, AZ 85073 P. O. Box 1178 oklahoma City, OK 73101 Carl Neiburger Telegram Tribune
* Bruce Norton, Esq.
P. O. Box 112 3216 N. Third Street San Luis Obispo, CA 93402 Suite 202 Phoenix, AZ 85012 Byron Georgiou, Esq.
Legal Affairs Secretary to Janice E. Kerr, Esq.
the Governor Lawrence Q. Garcia, Esq.
State Capitol Building J. Calvin Simpson, Esq.
Sacramento, CA 95814 California Public Utilities Commission Lawrence Coe Lanpher, Esq.
5246 State Building Hill, Christopher & Phillips 350 McAllister Street 1900 M.
Street, N.W.
San Francisco, CA 94102 Washington, D.C.
20036 MHB Technical Associates
*Dr. John H. Buck 1723 Hamilton Avenue Atomic Safety & Licensing Suite K Appeal Board San Jose, CA 95725 U.S. Nuclear Regulatory Comm'n.
Washington, D.C.
20055
* Thomas S. Moore, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Comm'n.
* Thomas S. Moore, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Comm'n.
Washington, D.C. 20055
Washington, D.C.
        *Dr. W. Reed Johnson                 \   JA . prp Atomic Safety & Licensing               L R. REyNOLDS, y      ESQ.
20055
Appeal Board U.S. Nuclear Regulatory Comm'n.
*Dr. W. Reed Johnson
Washington, D.C. 20055}}
\\
JA.
prp Atomic Safety & Licensing L R.
REyNOLDS, ESQ.
y Appeal Board U.S. Nuclear Regulatory Comm'n.
Washington, D.C.
20055}}

Latest revision as of 09:00, 23 December 2024

Supplemental Brief Supporting Request for Reversal of ASLB 810804 Memorandum & Order.Rejected Contentions Arise Out of TMI-2 Accident & Based on Significant New Info.Certificate of Svc Encl
ML20005C099
Person / Time
Site: Diablo Canyon  Pacific Gas & Electric icon.png
Issue date: 11/06/1981
From: Reynolds J
JOINT INTERVENORS - DIABLO CANYON
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8111180387
Download: ML20005C099 (8)
v • d • e


Text

%

i DOCKETED UNITED STATES OF AMERICA MCC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

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In the Matter'of

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Docket Nos. 50-215 0.L.

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(Diablo Canyon Nuclear Power

)

Plant, Units 1 and 2)

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JOINT INTERVENORS' SUPPLEMENTAL BRIEF IN SUPPORT OF REQUEST FOR REVERSA

((f. "

OF ATOMIC SAFETY AND LICENSING BOARD'S AUGUST 4, 1981 MEMORANDUM AND ORDER On October 8, 1981, Joint Intervenors filed with the Commission a Request for Directed Certificrtion seeking immediate review of the Atomic Safety and Licensing Board's

(" Licensing Board") August 4, 1981 Memorandum and Order tegarding admissibility of Joint Intervenors' contention.- in the full power proceeding.

On October 29, the Commission referred that application to the Atomic Safety and Licensing Appeal Board

(" Appeal Board") for prompt review.

By order dated the same day, the Appeal Board established an expedited briefing schedule and set

  • oral argument for November 19, 1981 in Bethesda, Maryland.

Joint Intervenors hereby supplement their previous application in support of the full power contentions rejected by the licensing board.

As this Appeal Board recognized in its October 29 Order, however, substantial pleadings have already been filed regarding the admissibility of those contentions, and 0111180387 811106

)

{CPDR ADOCK 05000275 hg\\

PDR G

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b hence it is neither necessary nor would it be useful for Joint-Intervenors to reiterate at, length the arguments, both factual and legal, which have been'made to the licensing board and to the Commission.

Indeed,.given the expedited nature of the briefing schedule, extensive rebriefing is infeasible.

Therefore, Joint Intervenors incorporate by reference their October 8th Request for Directed Certification, together with the supporting documentation and analysis attached thereto as exhibits.

In the Request itself, the March 24, 1981 Motion to Reopen (Exhibit B), the June 30, 1981 Statement of Clarified Contentions (Exhibit C), and the August 14, '981 Notice of Objections (Exhibit D), Joint Intervenors have comprehensively addressed the factual and legal bases for the contentions,1/ the significance of the issues raised,S/

the interpretation of the Commission's guidelines governing the admission of TMI-related contentions,S/ the standards for late-filing of contentions and reopening the record and their application in this 1/

Motion to Reopen, at 11-74; Statement of Clarified Contentions, at 6-18; Notice of Objections, at 2-7; Request for Directed Certification, at 8-24.

S!

Motion to Reopen, at 11-48; Statement of Clarified Contentions, at 6-18; Notice of Objections, at 2-7; Request for Directed Certification, at 9-24.

s S!

Motion to Reopen, at 56-72; Notice of Objections, at 2-7; Request for Directed Certification, at 2-24.

l

proceeding,A/ and, most recently, th'e flagrant misapplication of those guidelines and standar'ds by the licensing board in its August 4, 1981 Memorandum and Order.E/

As is apparent from even a cursory review of the record herein, Joint Intervenors' contentions and their supporting documentation are :.xceptionally detailed and compelling.

Each of the contentions rejected by the board arises out of the TMI-2 accident, is based upon significant new information recognized in numerous studies and reports issued since the accident (and cited extensively in Joint Intervenors' 76-page motion in support of the contentions),

and is intended to assure that such information is adequately considered and applied at Diablo Canyon prior to full power operation.

Consistent with the Commission's TMI-related guidance, Joint Intervenors explicitly related each of the contentions not only to the TMI accident, but also to Commission regulations and specific NUREG-0694 and NUREG-0737 requirements bearing on the same safety concerns.5/

In addition, to assure the requisite specificity, Joint A!

Motion to Reopen, at 11-56; Request for Directed Cerhification, at 22-23; Prehearing Conference Transcript, at 11,397-11,402 (July 1,1981) ; Response to Requests for Directed Certification, at 36-72 (March 26, 1981); see also Statement of Clarified Contentions, at 6-18; Notice of Objections, at 3-6; Request for Directed Certification, at 8-22.

E/

Notice of Objections, at 1-7; Request for Directed Certification, at 1-22.

5 See In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-NRC (April 1, 1981).

! L

o Intervenors tied each contention to Diablo Canyon site-specific information, including, where relevant, the reactor design,.NRC safety evaluation reports, and applicant submittals.2/-

In rejecting all but, one of Joint Intervenors' contentions,'however, the Licensing Board failed even to acknowledge the vast majority of the information submitted and issues raised.

Apparently in a misguided effort to accelerate the Diablo Canyon licensing process, the Licensing Board, through its brief ll-page Order, has in effect " swept under the carpet" each of the critical safety issues raised by Joint Intervenors in the aftermath of the TMI accident.

In so doing, the board has distorted the applicable standards for admission of a TMI-related contention virtually beyond recognition.

Indeed, if the board's almost total denial of contentions in this proceeding is deemed consistent with the Commission's TMI-related guidance, it is difficult to foresee any instance in which TMI-related issues could be found admissible in any proceeding.

Reversal of the Licensing Board's Order is essential, therefore, to preserve the integrity of the licensing process and to set this proceeding back on track.

Moreover, it is both warranted and necessary in order to obtain a fair application of the Commission' TMI-related policy guidance and precedent, a 2/

Motion to Reopen, at 16-49; S'tatement of Clarified Contentions, at 6-18. a

proper disposition of Joint Intervenors' contentions, and, ultimately, the most expeditious resolution of this proceeding.

As stated by Commissioner Gilinsky in connection with the Commission's September 21, 1981 Memorandum and Order in this proceeding:

Discipline, competence, and thoroughness are essential to the integrity of our licensing process.

The Commission's regulations are intended to insure due process and procedural fairness and to insure that initial decisions are of high quality.

Cutting corners in a micguided effort to accelerate a hearing can result in a procedural morass and a decision which fails to survive appellate review.

In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-22, NRC Separate Opinion of Commissioner Gilinsky, at 3-4 (September 21, 1981).

Accmrdingly, for the reasons stated in their October 8, 1981 Request for Directed Certification and Exhibits B,C, and D thereto, Joint Intervenors respectfully urge this Appeal Board to reverse the Licensing Board's August 4, 1981 denial of

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contentions and direct that they be admitted for hearing in-this proceeding.

DATED: November 6, 1981 Respectfully submitted, JOEL R. REYNOLDS, 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 REYdDLfS pLR.

Attorneys for Joint-Inter-

.venors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.

ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APFELBERG JOHN J. FORSTER e

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

)

)

PACIFIC GAS AND ELECTRIC COMPANY )

Docket Nos. 50-275 0.L.

)

50-323 0.L.

(Diablo Canyon Nuclear Power

)

Plant, Units 1 and 2)

)

)

)

CERTIFICATE OF SERVICE I hereby certify that on this 6th day of November, 1981, I have served copies of the foregoing BRIEF IN SUPPORT OF REQUEST FOR REVERSAL OF ATOMIC SAFETY AND LICENSING BOARD'S AUGUST 4, 1981 MEMORANDUM AND ORDER, mailing them through the U. S. mails, first class, postage prepaid.

Admin. Judge John F. Wolf,

  • Docket & Service Branch Chairman Office of the Secretary Atomic Safety & Licensing U.S. Nuclear Regulatory Board Commission U. S. Nuclear Regulatory Washington, D.C.

20555 Commission Washington, D.C.

20555

  • William Olmstead, Esq.

Marc R. Staenberg, Esq.

Glenn O. Bright Edward G. Ketchen, Esq.

Atomic Safety & Licensing Office of the Executive Legal Board Director - BETH 042 U S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555 Washington, D.C.

20555

  • Express Mail L

4 Dr. Jerry R. Kline Nancy Culver Atomic Safety & Licensing 192 Luneta Board San Luis Obispo, CA 93401 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Mr. Fredrick Eissler

  • Malcolm H. Furbrush, Esq.

Scenic Shoreline Preservation Vice President and General Conference, Inc.

Counsel 4623 More Mesa Drive Philip A. Crane, Esq.

Santa Barbara, CA 93105 Pacific Gas & Electric Company 77 Beale St.,

3lst Floor Sandra A. Silver San Francisco, CA 94106 Gordon Silver 1760 Alisal Street Arthur C. Gehr, Esq.

San Luis Obispo, CA 93401 Snell & Wilmer 3100 Valley Center David S. Fleischaker, Esq.

Phoenix, AZ 85073 P. O. Box 1178 oklahoma City, OK 73101 Carl Neiburger Telegram Tribune

  • Bruce Norton, Esq.

P. O. Box 112 3216 N. Third Street San Luis Obispo, CA 93402 Suite 202 Phoenix, AZ 85012 Byron Georgiou, Esq.

Legal Affairs Secretary to Janice E. Kerr, Esq.

the Governor Lawrence Q. Garcia, Esq.

State Capitol Building J. Calvin Simpson, Esq.

Sacramento, CA 95814 California Public Utilities Commission Lawrence Coe Lanpher, Esq.

5246 State Building Hill, Christopher & Phillips 350 McAllister Street 1900 M.

Street, N.W.

San Francisco, CA 94102 Washington, D.C.

20036 MHB Technical Associates

  • Dr. John H. Buck 1723 Hamilton Avenue Atomic Safety & Licensing Suite K Appeal Board San Jose, CA 95725 U.S. Nuclear Regulatory Comm'n.

Washington, D.C.

20055

  • Thomas S. Moore, Chairman Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Comm'n.

Washington, D.C.

20055

  • Dr. W. Reed Johnson

\\

JA.

prp Atomic Safety & Licensing L R.

REyNOLDS, ESQ.

y Appeal Board U.S. Nuclear Regulatory Comm'n.

Washington, D.C.

20055

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