ML20072G496

Answer Opposing Joint Intervenors 830608 Petition for Review of ALAB-728.Joint Intervenors Fail to Respond to Rationale of Aslab Decision.Certificate of Svc Encl

ML20072G496
Person / Time
Site:	Diablo Canyon
Issue date:	06/23/1983
From:	Crane P PACIFIC GAS & ELECTRIC CO.
To:	NRC COMMISSION (OCM)
References
ALAB-728, NUDOCS 8306280522
Download: ML20072G496 (7)

Text

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NUCLEAR REGULATORY COMMISSION Q- '._,.

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BEFORE THE COMMISSION 'II e

• In the Matter of ) 4 ,'

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

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

Units 1 and 2 )

)

ANSWER OF PACIFIC GAS AND ELECTRIC COMPANY OPPOSING JOINT INTERVENORS' PETITION FOR REVIEW OF ALAB-728

, On June 8, 1983 Joint Intervenors filed a petition requesting the Commission to review ALAB 728. The principal issues raised on the appeal as described by the Joint Intervenors are the following:

(1) The propriety of the denial of TMI-related contentions l

filed in the Low and Full Power proceedings; (2) The failure of the NRC to require an environmental impact statement or an environmental assessment for Diablo Canyon which considers (a) -The impacts of a Class Nine accident at the facility and l (b) The impacts of low power licensing and operation; and (3) The adequacy of emergency preparedness at Diablo Canyon.

For the reasons set forth below the petition should be denied.

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Joint Intervenors Fail To Respond To The Appeal Board's Decision In their petition for review Joint Intervenors generally fail to respond to the rationale of the Appeal Board decision.

• hey largely repeat the arguments they advanced in their exceptions to the low power decision, arguments which the Appeal Board has correctly reject ed.

Denial of Contentions PGandE can add little to the Board's analysis of its reasons upholding the denial of various contentions advanced by Joint Intervenors (Opinion 28-62). Joint Intervenors continue to ignore the requirements for reopening closed records or for late-filed contentions, or otherwise attempt to challenge

-Commission regulations in contravention of 10 CFR 2.758. While Joint Intervenors erroneously argue that they did address the requirements for reopening closed records (without specific citation to the record) they continue to refuse to address those requirements just as they did below. For further arguments in support of the Appeal Board's decision in this regard see PGandE's Brief in Opposition To Joint Intervenors' Exceptions To The Low Power Decision (at 6-22).

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Environmental Statements i

As respects the requirement for an environmental impact statement (EIS) for low power operation, Joint Intervenors l

argue that the Staff should have supplemented the Final EIS to 4

address the consequences of a Class Nine accident and to consider the effects of low power operation. However, the

. Appeal Board notes correctly that the existence of a Final EIS obviates the need for a special or supplemental one for low power testing (Opinion at 23, 24). The Appeal Board also noted that the Commission's 1980 policy statement regarding considera-

! tion of Class Nine accidents (4 5 Fed . Reg . 40103) applied only to proceedings in which a Final EIS had not been issued (Opinion at 26). The Appeal Board went on to note that the policy statement did not however completely foreclose the possibility of considering Class Nine accidents where special circumstances exist, and then observed that the Joint Intervenors had not advanced arguments in their brief concerning special circumstances (Opinion 27, 28). A review of the applicable portion of Joint Intervenors' Brief In Support of Exceptions (pp. 56-60) supports this observation. In any event the j Licensing Board correctly found that special circumstances i

j giving rise to consideration of Class Nine accidents did not exist in this case (In the Matter of Pacific Gas and Electric i

Company, Diablo Canyon Nuclear Power Plant Units 1 and 2, ,

13 NRC 1122 (1981). CF. In the Matter of Metropolitan Edison l .

I w _ - - _ _ _ _ . , . . _ . _ __. . _ _ _ . . _ . . _

)

Company, (Three Mile Island Nuclear Station, Unit No. 1),

ALAB-705, _ NRC , Dec. 10, 1982)1/

Emergency Preparedness First Joint Intervenors argue that the Appeal Board improperly rejected their contention that the complicating effects of earthquakes on emergency planning be considered relying upon the Commission's San Onofre decision (In the Matter of Southern California Edison Company, San Onofre Nuclear Generating Station, Units 2 and 3, 14 NRC 1091 (1981).

The Appeal Board correctly ruled that the Commission's San Onofre decision clearly and unambiguously forecloses consid-eration of this matter in licensing proceedings. (Opinion at 21.) Joint Intervenors' arguments that the San Onofre decision is not controlling are, to say the least, unpersuasive.

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, In their Petition For Review Joint Intervenors state the i Appeal Board has " recognized the existence of ' exceptional circumstances in this proceeding'" citing ALAB-519 (9 NRC 42).

However, that opinion involved the question of issuing subpoenas for two witnesses in the seismic proceedings cnd was issued before those proceedings had been closed and affirmed on appeal both by the Appeal Board and the Commission. Thus, it is not l support for the Joint Intervenors' position that this proceeding involves special circumstances warranting consideration of Class Nine accidents.

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Similarly, Joint Int'ervenors' attempts to circumvent 10 CFR 50.47 (d) fail. They argue that the Commission's regulation is an ill-advised " retrenchment". However, such an argument can not overcome the clear meaning of the regulation which, if Joint Intervenors wish to challenge it, must be done under 10 CFR 2.758, not in this individual licensing proceeding.

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

RICHARD F. LOCKE Pacific Gas and Electric Company P. O. Box 7442 San Francisco CA 94120 (415) 781-4211 ARTHUR C. GEHR Snell & Wilmer 3100 Valley Center Phoenix AZ 85073 (602) 257-7288 BRUCE NORTON Norton, Burke, Berry & French, P.C.

P. O. Box 10569 l Phoenix AZ 85064 (602) 955-2446 l Attorneys for Pacific Gas and Electric Company Bt / r Dated: June 23, 1983. Phili ' . Cran (, Jr.

• ~

UNITED STATES OF AMEPlCA NUCLEAR REGULATORY COMMISSION I in the Matter of )

. )

PACIFIC GAS AND ELECTRIC COMPANY. '~

) Docket No. 50-275

) Docket No. 50-323

, Diablo Canyon Nuclear Power Plant, )

Unito 1 and 2 )

)

CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company hno (have) been served today on the following by deposit in the United .

Ototss mail, properly stamped and addressed:

• Judga John F. Wolf Mrs. Sandra A. Silver Ch0irman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission W3chington DC 20555 Mr. Gordon Silver 1760 Alisal Street Judg3 Glenn O. Bright San Luis Obispo CA 93401 Atemic Safety and Licensing Board US Nuclear Regulatory Commission John Phillips, Esq.

W3chington DC 20555 Joel Reynolds, Esq.

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

l P. O. Box 1178 Mro. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer 1493 Southwood Arthur C. Gehr, Esq.

Can Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Janice E. Kerr, Esq. Phoenix AZ 85073 Public Utilities Commission Bruce Norton, Esq.

Stato of California 5246 State Building Norton, Burke, Berry & French, P.C.

350 McAllister Street P. O. Box 10569 Can Francisco CA 94102 Phoenix AZ 85064 Mrc. Raye Fleming Chairman l 1920 Mattie Road Atomic Safety and Licensing I

Ehsil Beach CA 93449 Board Panel US Nuclear Regulatory Commission Mr. Frederick Eissler Washington DC 20555 Ccanic Shoreline Preservation Canfarence, Inc.

4623 More Mesa Drive Canta Barbara CA 93105

Chnirman -

Judge Thomas S. Moore

, Atomic Safety and Licensing Chairman Appeal Panel. Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Wzchington, D.C. 20555 US Nuclear Regulatory Commission Washington, D.C. 20555 Sacretary US Nuclear Regulatory Commission Judge W. Reed Johnson W chington, D.C. 20555 Atomic Safety and Licensing Appeal Board Attn: Docketing and Servicing US Nuclear Regulatory Commission Section Washington, D.C. 20555 Lawrence J. Chandler, Esq. Judge John H. Buck Jcck R. Goldberg, Esq. Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission W2chington, D.C. 20555 Washington, D.C. 20555 Mr. Richard B. Hubbard Commissioner Nunzio J. Palladino <

MHB Technical Associates Chairman 1723 Hamilton Avenue, Suite K US Nuclear Regulatory Commission l

SEn Jose, CA 95125 1717 H Street NW L Washington, D.C. 20555 Mr. Carl Neiberger Talegram Tribune Commissioner John R. Ahearne P. O. Box 112 US Nuclear Regulatory Commission San Luis Obispo, CA 93402 1717 H Street NW Washington, D.C. 20555 Ccmmissioner Thomas M. Roberts Commissioner Victor Gilinsky US Nuclear Regulatory Commission 1717 H Street NW US Nuclear Regulatory Commission Waohington, D.C. 20555 1717 H Street NW 20555 l

Washington, D.C.

Michael J. Strumwasser

, Counsel to the Attorney General Commissioner James K. Asselstine 3580 Wilshire Blvd. Suite 800 US Nuclear Regulatory Commission Los Angeles, CA 90010 1717 H Street NW Washington, D.C. 20555 1 . ,

P lip A. drane, Jr.

Dsts: June 23, 1983 cific Gas and Electric Company l

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