ML20055B096

Memorandum ALAB-681 & Certification to Commission,Of Questions on Whether Commission 811119 Order Deprives Adjudicatory Boards of Jurisdiction to Consider Motion to Reopen Record Based on Qa/Qc Issues

ML20055B096
Person / Time
Site:	Diablo Canyon
Issue date:	07/16/1982
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
ALAB-681, ISSUANCES-OL, NUDOCS 8207200356
Download: ML20055B096 (8)

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UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOA Q g jg ,rq Administrative Judges: r; n r-i:

Thomas S. Moore, Chairman Dr. John H. Buck Dr. W. Reed Johnson SERVED JUL191982

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In the Matter of )

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PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275 OL

) 50-323 OL (Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

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MEMORANDUM AND CERTIFICATION TO THE COMMISSION July 16, 1982 (ALAB-681)

On June 8, 1982, the " joint intervenors"-1/ in the Diablo Canyon operating license proceeding filed with us a motion to reopen the record underlying the Licensing 2/

Board's July 17, 1981 partial initial decision- that

-1/ Collectively labeled, the joint intervenors are the San Luis Obispo Mothers for Peace, Scenic Shoreline Preservation Conference, Inc., Ecology Action Club, Sandra Silver, Gordon Silver, Elizabeth Apfelberg and John J. Forster.

-2/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Plant, Units 1 and 2) , LBP-81-21, 14 NRC 107 (1981).

8207200356 820716 PDR ADOCK 05000275 G PDR b5 0 2_.

i authorized a license for fuel loading and low-power testing.

The joint intervenors' appeal from that low-power decision is currently before us for decision. The joint intervenors now wish t'o submit "significant new evidence of the recently established breakdowns in the Diablo Canyon Quality Assurance 3/

and Quality Control ('QA/QC') Program." In addition, the joint intervenors seek vacation of the Licensing Board's 4/

QA/QC finding contained in the low power decision- and revocation of the Diablo Canyon low-power license. In sup-port of their motion, joint intervenors have filed an extensive affidavit of Richard B. Hubbard, a registered quality engineer, detailing numerous alleged QA/QC problems at the Diablo Canyon facility.

On September 21, 1981, subsequent to the Licensing Board's low-power decision and the Commission's review under the im-5/

mediate effectiveness rule,- the NRC staff issued a license 3/ Joint Intervenors' Motion To Reopen at 1.

4/ See LBP-81-21, 14 NRC at 116.

-5/ See 46 Fed. Reg. 28627, 28630 (May 28, 1981); Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , CLI-81-22, 14 NRC 598 (1981).

i to PG&E for fuel loading and low-power testing up to 5% of 6/

rated power for the Diablo Canyon Plant, Unit 1.~ There-after, on November 19, 1981, the Commission suspended, pur-suant to l'0 CFR 2.202, the low-power license because certain new information raised doubts about the adequacy of PG&E's 7/

quality assurance program.~ In suspending the license, it stated that "[h] ad this information been known to the Com-mission . . . Facility License No. DPR-76 would not have 8/

been issued until the questions raised had been resolved."-

To resolve the questions surrounding PG&E's QA program, the Commission ordered an independent design verification program.~9/ That program is now under way~.

6,/ License No. DPR-76.

-7/ Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-30, 14 NRC 950 (1981).

8/ Id. at 951.

9/ Id. at 955-958.

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Governor Edmund G. Brown, Jr., representing the State of California in the operating license proceeding (and also an appellant in the appeal of the Licensing Board low-power 10/

decision) ," supports and joins--' the joint intervenors '

motion to reopen the record. The Governor argues that the motion satisfies the criteria governing the reopening of a closed adjudicatory record and asserts that the " parties now have the right, under the Atomic Energy Act and Administrative Procedure Act, to a hearing on quality assurance at Diablo Canyon given the significant new information that has come to light since the record was closed and the low power 11/

license suspended."--

The staff and PG&E contend that the motion to reopen the record should be denied. The reasons assigned in support of this result, however, differ markedly. The staff recognizes

~~10/ Governor Brown's response to joint intervenors' motion notes that he is not filing a separate motion to reopen the record in order to avoid repetitious filings.

Response at 1, n. 1.

11/ Id. at 4.

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s the highly unusual posture of this proceeding and argues that the motion should lxa denied without prejudice to

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the refiling of a similar motion at a later time. According to the sta'ff, even though the joint intervenors' motion appears to meet the standards for reopening the record, it would be inappropriate to commence a hearing while the independent verification program in which intervenors are participating is still ongoing. This is so because the present program may resolve intervenors' concerns. The staff also argues that it is unnecessary -- and in any event inappropriate in light of the Commission's oversight of the verification program -- to revoke the low-power license as joint intervenors have requested.

On the other hand, PG&E argues'that the Commission's November 19, 1981 order suspending the low-power license has divested the adjudicatory boards of jurisdiction to reopen the r,ecord. According to PG&E, "the Commission has assumed complete jurisdiction over the low-power license . . . to resolve the quality assurance and design issues that have arisen at Diablo Canyon. "--12/ In effect, PG&E contends that the

_1_2/ PG&E Response at 22.

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4 Commission has already determined to resolve'the OA/QC issues at Diablo Canyon outside the adjudicatory process, and the intervenors have no right under Atomic Energy Act and the Commission's regulations to have the record reopened.--13/

In the alternative, PG&E asserts that the joint intervenors have failed to meet the requirements for reopening the record.

Before we can reach the question whether joint intervenors' motion meets the standards for reopening the record, we must address the jurisdictional question raised by PG&E. Specifi-cally, we must consider whether the Commission intended its November 19 enforcement order (or, if not, whether it now intends) to deprive the adjudicatory boards of jurisdiction to entertain the joint'intervenors' motion regarding the OA/QC issues at Diablo Canyon. In confronting this question, we believe the unusual circumstances at Diablo Canyon make it appropriate to seek guidance directly from the Commission.

--13/ The utility's response does not discuss the threshold question whether its interpretation of the Commission's November 19 suspension order is' consistent with the Atomic Energy Act, 42 U.S.C. 82239, the Administrative Procedure Act, 5 U.S.C. 88556 and 557, and the Com-mission's regulations and case law.

Accordingly, we certify to the Commission under 10 CFR 2.785(d) the following questions:

Did the Commission intend its November 19, 1981 order suspending the low-power license for Diablo Canyon, Unit 1, and establishing an independent verification program to de-prive the appropriate adjudicatory boards of jurisdiction to consider a motion to reopen the record based on the QA/QC questions regarding Diablo Canyon?

If not, does the Commission now wish to relieve the adjudicatory boards of jurisdiction with regard to the QA/QC issues at Diablo Canyon?

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?

We believe certification of these questions to'the Commission is warranted for several reasons. First,although the joint intervenors' motion is aimed at the Licensing Board's low-power decision and its underlying record, a i

similar motion may well be filed with regard to the Licens-i ing Board's full-power decision which is expected to be issued shortly. Therefore, because the issue is likely i

to arise again in this proceeding, deciding the jurisdictional l

questions now may ultimately save considerable Commission resources and avoid delay in the licensing process for the 1

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i Diablo Canyon facility. Second, the Commission's Statement Of Policy On Conduct Of Licensing Proceedings encourages the adjudicatory boards to certify to it significant legal and policy' questions in order to avoid licensing delays.--14/

Here, because the certified matters involve both legal and policy questions that hold considerable potential for causing licensing delay, they are most appropriate for Commission resolution.

We shall hold the joint intervenors' motion to reopen the record in abeyance pending the Commission's determination of the certified questions or until we receive further instruc-tions from the Commission (such as directions to forward the motion to it .for decision) . .

FOR THE APPEAL BOARD

b. b . AM C. g an Shoemaker -

Secretary to the Appeal Board 14/ CLI-81-8, 13 NRC 452, 456-57 (1981).

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