ML20236C981

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Staff Response to Motion of San Luis Obispo Mothers for Peace Relative to Pge&E/Nrc Seismicity Meeting of 750207.* Board Regulation of Conduct of NRC Independent Review Process Inappropriate.W/Certificate of Svc
ML20236C981
Person / Time
Site: Diablo Canyon, 05000000
Issue date: 03/07/1975
From: Black R
NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML20236A877 List: ... further results
References
FOIA-87-214 OL, NUDOCS 8707300261
Download: ML20236C981 (10)
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UNITED STATES OF AliERICA f-[/.'Y reMc. CI E\ ~ i.7 E NUCLEAR REGULATORY C0h:11SS10N I M/A 101975 :> -

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) .

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) Docket Nos L.

PACIFIC GAS AND ELECTRIC COMPANY

) b -323 0.L.

(Diablo Canyon Nuclear Power Plant, )

Units Nos.1 and 2) )

STAFF'S RESPONSE TO MOTION OF SAN LUIS OBISP0 liOTHERS FOR PEACE RELATIVE TO A PG&E/NRC SEISMICITY MEETING OF FEBRUARY 7.1975 A. INTRODUCTION On February 3,1975, Elizabeth E. Apfelberg acting on behalf 01 the San Luis Obispo 11others for Peace (Petitioners) filed a motion requesting that a February 7,1975 meeting between Pacific Gas &

Electric (Applicant) and the Nuclear Regulatory Conmission (Staff) be postponed until such time as the meeting auld be held in San Luis Obispo. The purpose of the meeting was to discuss the geology and seismology of the Diablo Canyon site, a matter which is in controversy.

The cceting was held on February 7 and notwithstanding allegations to the contrary in the motion, the Petitioners were represented by Mr. Bob Augustine.

In a conference call February 10, 1975, the Cnairman of the Atomic Safety and Licensing Board (Board) stated that the neeting had been g held and the motion was to that extent noot but requested that Appli- Y cant ard Staff provi4 the Board with a position paper regarding future .

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This respons? is, therefore, meetings of the sane or similar nature.

directed to the broad questions raised by the motion rather than to specific application of that motion to this case.

B. REGULATORY PROCESS'AND AUTHORITY OF THF BOARD.

The procedures set out in the Commission's regulations at 10 CFR l Parts 2 and 51, established by the Commission pursuant to the National I Environmental Policy Act of 1969 (NEPA), the Atomic Energy Act of 1954, [

as amended, and the Adm'nistrative Procedure Act, clearly envision estab- j lishment of a regulatory process with a separation of functions and f procedural responsibility between the Regulatory Stdf and the Licensing Boards. Wisconsin Electric Power Comnany and !!iscon:in-Michiaan Po'ser Company (Point Beach Nuclear Plant, Unit 2), LBP-72-32, 5 AEC 102, 173-174,196-202 (December 8,1972).

A number of decisions have affirmed the indeper. dent review role of both the Atomic Safety and Licensin9 Coards and the Atomic Safety and Licensing Appeal Boards vis-a-vis the P.egulatorj Staff under NEPA.

Boston Edison Comoany (Pilgrir., Nuclear Power Station), ALAB-83, 5 AEC 354, 357-358 (December 4,1972); Arkansas Power & Licht Comoany

( Arkansas Nuclear One, Unit 2), LBP-72-30, 5 AEC 144,155-157 '(December 1, 1972). The Calvert Cliffs case, Calvert Cliff's Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir.1971), 'also discussed the inder... dent role of the Atomic Safety and Licensing Board vis-a-vis the Staff.

The independent nature of the Staff's role is also reflected in the day-to-day execution of its licensing and regulatory program.  !

One of its responsibilities is to conduct a thorouch review of all aspects .

of the facility to assure that it conferns to the Corqission's safety fI standards and that its environmental imaacts are properly assessed and are not unwarranted. Another is to assure that actual construction and operation activities conform to license or permit requirements and These responsibilities must regulatory standards of the Commission.

be carried out by the Staff, independently and without regard to:

i whether a hearing is held in an operating liccase case; l

whether a construction permit proceeding is contested by a i third party; or l whether in a contested case, the particular question is in l controversy in the proceeding. l In the hearing process the Staff assessment serves to assist the Licensing Board in the exercise of its independent adjudicatory func-tion. See Commission's Memorandum and Order, July 16, 1974, in the Matter of Consolidated Edison Compary_of flew York ' Indian Point Nuclear

._-Generating Station, Unit 3), Docket 50-286, CLI-74-?8, RAl-74-7-7 at 8 and the cases cited.

These separate roles are vital to the proper performance of the Commission's regulatory process and the Staff's independent role should not properly be subject to Licensing Board direction except in the un-usual event of a denial of a clear legal right,1/ such as a discovery 1/

And, the Licen~'79 Board may properly regulate the conduct of the Staff as it does all parties, with respect to hearings before the Board. 10 CFR 2.718. ,

This however, is not the right accorded by the Comission's rules.

situation with respect to the present request.

C. OPPORTUNITY TO BE INFOR$4ED AND PARTICIPATE The only conceivable legal right which night be affected in this case is the public's right to participate meaningfully in nroceedinos before the Commission.

That right is nanifestly protected under ex sting administrative procedures and practices.

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1. Staff Meetings with Applicarit Since the Petitioners appear to be concerned at:out the nature of information exchanged at such routine business meetings, some clarification concerning these meetings may be useful et this print.

The neetings are informal in the sene that they are not ;onducted as a part of the adjudicatory presentation of evidence before an Atomic Safety and Licensing Board nor as part of a discovery de:r,and under 10 CFR 52.740-2.742. The meetings are held as a part of the Staff's responsibility to assess an application for a license er permit, to assere that the proposed facility conforms to the Commissions safety standards, and to assure that the environmental impacts of the

' facility are properly considered and are warranted when balanced against the benefits to be derived from the facility.

The meetings are held to.obtain a greater understanding _of_ complex information submitted in the Preliminary Safety Analysis Report (PSAR)'

or Environmental Report (ER), or to provide to an Applicant a greater:

understanding of the specific nature of information sought C the Staff

-in the questions asked of Apolicant in.the course of the StaffLreview.E ]

It is usually the practice to notify all parties of ..these meetings.- . As indicated in their motion, the Petitioners received notice of ~the February 7, 1975 meeting. They were afforded the op'ortunity to -

participate, and in fact did participate.

If information is presented at such meetings, in addition to that' contained in the PSAR or the Environmental Report, it is subsequently 4 1

reflected in the'PSAR or ER amendments or supplements (or in' other forms of written submissions) before it is_ used by the Staff in its Environmental Statements or its Safety Evaluation Report.E Since

_i information discussed at such meetings is accepted only tentatively subject to confirmation by written submisslan, the Staff does not 4 consider detailed summaries to be necessary, although the Staff j

strives.for summaries which fairly reflect what went on at the meeting..

The subsequent written submissions which are sent t: the public document 1

~!

U Th ese questions are submitted to the Applicant in writing and  :

copies' of the questions, and. responses thereto are regularly ,

sent to the local public document room.

MIf written information is presented at the meeting, it is sent to -

the public document rooms after the meeting,.often as an attachment to the minutes. References to standard scientific texts o'r to 4

legal requirements may also be made in the course of discussions. -

These of course, arn verified by the Staff before any use would ,

be made of these references and appropriate reference would be cited in the Staff SER, DES or FES if used. .

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9 the information used and relied upon in the assessment rooms contain of the facility. Consequently, any interested persor. will have access i

to information exchanged at such meetings even without considering the available formal discovery procedures under the Commission's Rules of Practice (10 CFR 52.740-2.742).

2. Staff Meetings with Interested Persons In order to adequately complete its review the Staff meets not only with Applicant but also meets with other parties to the proceeding and with persons who are not parties to the proceeding, including )

other Federal, state or local agencies, who may have comments to L

contribute to the Staff's safety or environmental rc',iew or who may be able to provide useful information concerning Fe:aral, state or local requirements or information concerning local conditions.

l In the present case, the Staff has met with a number of intertsted l persons includirg several local agencies, a nu$er :f the Petitioners, and a number of agencies of the State of Californic. to discuss various aspects of the proposed facility. The Staff inten:I to meet witn all parties at a mutually convenient time and place to solicit their views and comments on the proposed action and to obtain such infor-mation or references to information that may have a bearing on facility safety and the decision to issue an operating license.

In the discharge of its responsibilities, the Staff affords all parties an oppet.:nity to present relevant safety information,

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.o express any concerns about facility safety and to have their j

environmental concerns considered pursuant to the Commission rules in 10 CFR 951.23.

Furthermore, the propriety and necessity of "ex parte" communica- 1 l

I tions and meetings between the Staff, Applicants, and' interested per-l sons has never been in question. Indeed,10 CFR f 2.102(a).provides that during regulatory review "[t]he regulatory staff may request any 1

The i one party to the proceeding to confer with the staff informally."

only restriction on "ex parte" communications found in the Commission's regulations applies to communications with quasi-judicial officials (or advisors) with respect to adjudications which may be before that official . 10 CFR 52.719, 10 CFR 92.700, 10 CFR Part 2, App. A, VII.

See also 5 USC 5554.

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3. Discovery l

To the extent that any discoverable items were involved in such ,

meetings, parties have under the Commission's rules a full scope of discovery rights available to obtain relevant infor;r.ation. Accordingly, parties' rights to information which are assured by the Commission's discovery and public information rules remain in full force and effect. t l The Commission has taken a number of steps recently to promote -

the exchange and availability of information. To expedite inter-change of information, the Commission has encouraged making information

available to interested persons even before the discovery process commences and has provided for the routine availability of a wide range of AEC documents (37 F.R.15127). This wide range of routinely avail-able information supplements, rather than substitutes for the access to discoverable information which is assured to all parties by the Commission's discovery rules. In addition, the Commission has also recently amended its rules to facilitate the discovery process as it applies to the S Lff (40 F.R. 2973).

D. C04CLUSInfJ In view of the foregoing, it would be inappropriate for the Board to regulate the conduct of Staff's independent revic: process, including the scheduling of meetings.

Respectfully s.ubnitted, en p' Muitj4..,i-Richard L. . slack Counsel for rFC Staff Dated at Cethesda, tiaryland this 7th day of :1 arch, 1975.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOilC SAFETY AND LICENSING C0Ag,D U i

In the Matter of ) l

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l PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 0.L.

) 50-323 0.L.

(Diablo Canyon Nuclear Power Plant, )

)

I Units Nos.1 and 2) 1 CERTIFICATE OF SERVIC_E_

I hereby certify that copies of " STAFF'S RESPONSE T0 finTION OF l SAN LUIS 051SP0 MOTHERS FOR PEACE RELATIVE TO A PGTE/flRC SEIS'11 CITY MEETING OF FEBRUARY 7,1975," dated fiarch 7,1975, in tha 'above captioned natter, have been served on the followina by deoosit in the United States mail, first class or air mail, this 7th day of ,

j March 1975:

Elizabeth S. Boaers, Esq. Andrew J. Skafi Eso.

Atomic Safety and Licensing California Public Utilities Caur;;sion Board 5246 State Building '

U. S. Nuclear Regulatory Commission 350 McAllister Street Washington, D. C. 20555 San Francisco, California 94102 Mr. Glenn 0. Bright Ms. Elizabeth E. Apfelberg Atomic Safety and Licensing 1415 Cazaero Board San Luis Obispo, Caliform.a 93?91 U. S. flucleer Esgulatory Commission Washington, D. C. 20555 Mr. Frederick Eissler Scenic Shoreline Preservation Dr. William E. artin Conference, Inc.

Senior Ecologis: 4623 More Mesa Drive i Battelle Memorial Institute Santa Barbara, California 93105  ;

Cclumbus, Or.ic '3201 Mrs. Sandra A. Silver Philip A. Crane, Jr. , Esq. 1315 Cecelia Court Pacific Gas and Electric Company San Luis Obispo, California 93402  ;

77 Beale Street ,

San Francisco, :elifornia 94106 Mr. Gordon Silver 1315 Cecclia Court Mr. John Forste- San Luis Obispo, California 93402 985 Palm Street San Luis Obispo, California 93401

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Mr. William P. Cornwc!1 Docketing and Service Section l P. O. Box 453 Office of the Secretary of the l Morro Bay, California 93442 Convaission l U. S. liuclear Regulatory Commission <

Atomic Safety and Licensing . Washington, D. C. . 20555 Appeal Board j U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing j Board Panel U. S. Nuclear Regulatory Commission .,

Washington, D. C. 20555 L

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Richard [. Black./ l Counsel for IMC Staff

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