ML20028E358

Petition for Review of Commission 821223 Order CLI-82-39, Denying Petitioner Request for Hearing on Util Application for Amend to OL to Renew Suspended Ol.Due Process Violated. Certificate of Svc Encl.Related Correspondence

ML20028E358
Person / Time
Site:	Diablo Canyon
Issue date:	01/20/1983
From:	Reynolds J CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON
To:	U.S. COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
References
83-1073, ISSUANCES-OL, NUDOCS 8301210261
Download: ML20028E358 (12)

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. _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ . _____ _ ____ _______ _____ ____ _ ________________________ ____________________________________-

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- ) RECEIVED

.6Lg',mm IN THE .l A N, '10 983

1. U.NkW CLERK OF THE UNITED -

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,gRgHgD?SpidCT OF COLUMBIA CIRCUIT

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SAN LUIS OBISPO MOTHERS FOR PEACE, )

et al., ,)

) PETITION FOR REVIEW Petitioners, ) Q LU f t>1939 Docket NF.,]_

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v. )

)

NUCLEAR REGULATORY COMMISSION and )

THE UNITED STATES OF AMERICA, )

)

Respondents. )

)

The San Luis Obispo Mothers for Peace, et al.,1! hereby petition the Court for review of an Order of the Nuclear Regulatory Commission ("NRC" or " Commission") entered on December 23, 1982. In its Order, the Commission denied Petitioners' request for a hearing ~on an application by Pacific Gas and Electric Company ("PGandE") for amendment of an operating license previously issued for the Diablo Canyon 1! Petitioners herein are the San Luis Obispo Mothers for Peace, Scenic Shoreline Preservation Conference, Inc.,

Ecology Action Club, Sandra Silver, Gordon Silver, and Elizabeth Apfelberg. Each of these groups and individuals interver.ed in the administrative licensing proceedings before the Cc =ission, and they were collectively designated the Joint Ir.:ervenors.

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Nuclear Power Plant, Unit 1 ("Diablo Canyon") .S!

i The NRC's Order of December 23, 1982 is a final order

' made reviewable in the courts of appeals by 42 U.S.C. S 2239. ,

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Venue lies in this Court in accordance with the provisions of 28 U.S.C. S 2343.

On August 3, 1982, PGandE applied to the NRC for an amendment to its operating license for Diablo Canyon issued on 1

September 21, 1981. Petitioners promptly requested a hearing prior to a decision by the NRC on the proposed amendment.

Petitioners' hearing request was communicated to the NRC both by letter dated August 11, 1982 and by formal application f

dated August 17, 1982. By its Order issued December 23, 1982,_

the Commission denied Petitioners' request. Petitioners seek j

review by the Court of that-Order. (A copy of the l

Commission's Order is attached hereto as Exhibit A.)

Petitioners assert that the NRC's December 23, 1982 Order rejecting their timely request unlawfully denies their right i

to a hearing guaranteed by the Atomic Energy Act, the j Administrative Procedure Act, and the Commission's own I regulations, as well as the Due Process Clause of the United l -

t S/ On September 21, 1981, the NRC issued Operating Licensing No. DPR-76 for Diablo Canyon authorizing PGandE to operate the facility. Before fuel was Iceded into the reactor, however, the Commission suspended the license pending i review of newly discovered design and construction errors in

! certain of Diablo Canyon's structures, systems, and components

' important to safety. On December 8, 1982, this Court held in abeyance petitions by the San Luis Obispo Mothers for Peace and the State of California for review of the issuance of the facility operating license. The license suspension remains in effect today.

States Constitution. The proposed license amendment which is the focus of Petitioners' hearing request is significant to safety because it would effectively renew an operating license i

which has been suspended for its full term due to the 6 I

discovery of widespread design and construction errors at the  :

- Diablo Canyon plant.3/ Petitioners, who reside or have members who reside in the vicinity of the plant,  !

unquestionably are persons "whose interest may be affected by  !

the proceeding. . . ." 42 U.S.C. S 2239 (a) . j i

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3/ Indeed, the Commission itself has acknowledged that the license which the proposed amendment would renew "would not have been issued" had the errors since disclosed been revealed prior to its issuance. In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-30, at 3.

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WHEREFORE, Fe:itioners recuest the Court to review and

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reverse -he Order of the Nuclear Regulatory Commission entered )

December 23, 1932.

DATED: January 20, '983

_ 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. ELEISCHAKER, ESQ.

P. O. Box 1178 oklahoma City, OK 73101 O

By kf EL R. W / MOLDS Attorneys for Petitioners SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CO!)FERENCE , INC. N ECOLOGY ACTION CLUB SANDR;. SILVER ,

GORDON blLVER ELIZABETH APFELBERG CERTIFICATE OF SERVICE I hereby certify that on this 20th day of January, 1983, copies of the foregoing PETITION FOR REVIEW were filed in the United States Court of Appeals for the District of Columbia Circuit, were served by hand upon the Secretary, Nuclear Regulatory Commission, Washington, D.C. 20555, and upon William French Smith, Attorney General, United States Department of Justice, Washington, D.C. 20530, and were served by first class mail upon the following:

Herbert H. Brown, Esq.

Charles Lee Eisen, Esq.

Lawrence Coe Lanpher, Esq.

Kirkpatrick, Lockhart, Hill, -

Christopher and Phillips 1900 M Street, N.W.

Washington, D.C. 20036

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Philip A. Crane, Jr., Esq.

Richard F. Locke, Esq.

F. Ronald Lanpheimer, Esq.

Pacific Gas and Electric Co.

1050 17th Street, N.W.

Suite 1180 Washington, D.C. 20036 Bruce Norton, Esq.

Norton, Burke, Berry and Janck 3216 N. Third Street Suite 300 .,

Phoenix, AZ 85012 .

O OEL R. M Y$DLDS

ifRVEb DEC 231982 D'"E.IIU

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .g7 p f.23 FM :31 -

COMMISSIONERS: -

Nunzio J. Palladino, Chairman -

Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine

)

In the Matter of PACIFIC GAS AND ELECTRIC COMPANY Decket Nos. 50-275 0.L.

50-323 0.L.

(Diablo Canyon Nuclear Power )

Plant, Units 1 and 2) )

)

MEMORANDUM AND ORDER .

(CL1 39)

A. Background On July 17, 1981, the Atomic Safety and Licensing Board (Licensing Board) issued a partial initial decision in the Diablo Canyon operating license proceeding'that approved the request of Pacific Gas and Electric Company (PG&E) for a license to load fuel and conduct low-powertesting.1/ Fol' lowing the effectiveness review conducted

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1/ Pacific Gas and Electric Comoany (Diablo Can Units 1 and 2), LBP-81-21,14 NRC 107 .(1981) yon Nuclear This decision relied Plant, on several earlier adjudicatory decisions and was conditioned upon one subsequent decision. LBP-78-19, 7 NRC 989 (1981); LBP-79-26, 10 NRC 453 (1979); ALAB-644, 13 NRC 903 (1981) (Seismic); and ALAB-653, 14 NRC 629 (1981) (Physical Security).

1 EXHIBIT A

-' 2 pursuant to 10 CFR 2.764(f), the Commission authorized the isrvance of

-- such a license f.or Diablo Canyon Nuclear Power Plant, Unit 1.E The NF.C .

staff issued the license on September 22, 1981. Soon thereafter, F3sE informed the NRC of the discovery of an error in the seisnic design of equipment and piping in the containment annulus of Diablo Canyon Unit 1.

Further inquiry by PG&E and the NRC staff disclosed additional errors in the plant. On November 19, 1981, the Comission suspended PG3E's license to load fuel and conduct low-power testing pending the satisfactory completion of an independent design verification program (IDVP).E The IDVP remains in progress at .'lis date.

OnJune8,1982,the"JointIntervenors"EI in the operating license proceeding filed a motion requesting the Atomic Safety and Licensing ,

Appeal Board (Appeal Board) to vacate the Licensing Board's July 17, t 1981 findings on its sua sconte review of the Diablo Canyon quality assurance program, revoke the low-power license, and reopen the record for hearing and the submission of relevant new evidence. The Joint Intervenors focused their request on evidence regarding breakdowns in E Pacific Gas and' Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-22, 14 NRC 598 (1981).

3_/ Pacific Gas and Electric Company (Diablo Cangn Nuclear Power 9 Plant, Unit 1), CLI-81-30, 14 NRC 950 (1981). -

Al Collectively labeled, the joint intervenors are the San Luis Cbispo Mothers for Peace, Scenic Shoreline Preservation Conference, :nc.,

Ecology Action Club, Sandra Silver, Gordon Silver, Elizabeth Apfelberg and John J. Forster.

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the Diablo Canyon Quality Assurance and Quality Control (QA/QC) program.

On July 16, 1982, the Appea'. Board certified to the Commission three

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questions regarding Joint Intervenors' motion.

Subsequent to the certification, Governor Edmund G. Brown, Jr. ,

filed a motion to reopen the full-power proceeding with the Licensing Board. Governor Brown's motion focused on essentially the same subject as Joint Intervenors' motion to reopen the low-power proceeding. In the -

August 31, 1982 initial decision concluding its review of PG&E's full-power operating license application, the Licensing Board declared that the motion to reopen the full-power proceeding was misdirected, stating that QA/QC issues had been decided in full in the Licensing Board's July 17, 1981 partial initial decision in the low-power proceeding.5_/ The Licensing Board noted that it no longer had jurisdiction of that record but held Governor Brown's motion under advisement pending the Commission response to these certified questions.

The Commission intends this response to the certified questions to apply equally to the motion to reopen the full-power proceeding.

B. Certified Questions .

The Appeal Board's c'ertified questions focus on the jurisdictional issue presented by the relationship between the IDVP and the operating license proceeding. The questions and the Commission responses are set forth below.

1. Did the Commission intend its November 19, 1981 order Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power

-5/ , Slip op. at 8 (August Plant, Units 1 ano 2), LBP-82-70, 16 NRC 31,1982).

4 suspending the low-power license for Diablo Canyon, Unit 1, and establishing an independent verification program to deprive the appropriate adjudicat.ory boards of jurisdiction to consider a motion to reopen the record based on the QA/QC questions regarding Diablo Canyon?

2. If not, does the Commission now wish to relieve the

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adjudicatory boards o' jurisdiction with regard to the QA/QC issues at Diablo Canyon?

The Commission did not intend the issuance of the suspension order and establishment of the IDVP to deprive the adjudicatory boards of jurisdiction to consider and act on the motions to reopen and does not wish to do so now. Thus, these questions are answered in the negative.

3. If the Commission has not divested, and does:not intend.to divest, the adjudicatory boards of jurisdiction over the QA/QC _.

issues at Diablo Canyon what, if any, instructions _does the Commission have with regard to timing or other matters raised by the motion to reopen?

The Commission believes the motions to reopen should be addressed according to the criteri[ for resolving such matters established in its case-law and rules of practice, 10 CFR Part 2. Where a motion to reopen relates to a previously uncontested issue, the moving party must satisfy ,,

both the standards for admitting late-filed contentions,10 CFR 2.714(a), and the criteria established by case-law for reopening the record. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361 (1981). Furthermore, the Commission notes that reopening the record does not necessarily require that fuel loading and low-power testing be stayed. The Appeal Board

.- 5 shall respond separately to stay requests in accord with the applicable criteria.5I C. Reouest For Hearina on Low-Power License Extension Also pending before the Commission at this time is Joint Intervenors' August 17, 1982 request for a hearing pursuant to section 189a of the Atomic Energy Act on PG&E's application for an amendment extending the suspended low-power license. PG&E's low-power license, due to expire September 22, 1982, one year from the date of issuance, remains in effect following PG&E's timely request for renewal pending a Comission decision on the application for an extension.E

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As the Commission has previously held, a request for a low-power license does not give rise to a proceeding separate and apart from a pending full-power operating license proceeding.8_/ It,follows ,

that this hearing request is subsumed within the scope of the continuing full-power proceeding, as was the request for a low-power license.

Further operation at low-power is within the scope of PG&E's application 5/ In this regard, currently there is nothing to stay. As a separate matter, several steris must occur independent of the requests addressed here befor'e fuel loading, low-power testing and full-power operation may be authorized. Before fuel loading and low-power testing, the Comission must decide whether to lift the suspension and reinstate the fuel loading and low-power license--concluding the Comission enforcement action taken on November 19, 1981,(license suspension, see note 3 infra). In addition, the Comission must ' complete its immediate effectiveness review before full power can be authorized. The Commission does not plan to conduct any additional low-power effectiveness review.

However, it still has a Licensing Board decision on full-power issues to review and will discuss uncontested issues with the staff before a full-power license may be issued.

U See, 5 U.S.C. 558; 10 CFR 2.109.

8_/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 362 (1981).

.. 6 for a full term full-power license and is controlled by the record developed to date in the operating license proceeding. Thus, there is

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no section 189a right to a separate hearing here and no need for any "significant hazards consideration" finding of the type that would be called for were this a separate proceeding on an application for a license amendment. For the same reason, Sholly v. U.S. Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir.1980) (per curiam), cert.

granted, 451 U.S. 1016 (1981), does not require a hearing in this instance. This request for a hearing would ordinarily be treated as a motion to reopen the low-power record. In this instance, Joint Intervenors have already filed a motion to reopen the low-power record with the Appeal Board. Accordingly, the request for a hearing on the extension of the low-power license is duplicative and is hereby denied.

The separate views of Commissioner Gilinsky are attached.

It is so ORDERED.

Fo ;the Commission,

.. 1 Sa'muel J. Chily' Secretary of theCommission Dated at Washington, D.C.

this OL34 day of December,1982.

SEPARATE VIEWS OF COMMISSIONER GILINSEY DIABLO CANYON CERTIFICATION I am astonished and disappointed that this Commission, which has so frecuently and vociferously announced its desire to simplify the hearing process, should reject the suggestion that the Diablo Canyon low-power and the full-power hearings he merged into a single hearing. As far,as I can tell, the only plausible rationale for keeping two hearings going is the remote possibility that this would permit PG&E to begin low power testing (though not commercial operation) a few weeks earlier than would otherwise be possible.

This hardly justifies the confusion and procedural ,

complexity caused by two simultaneous hearings on the same operating license. The Commission should consolidate the .

two hearings.

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