ML20093K019

Answer in Opposition to Joint Intervenors 840725 Application for Stay of Anticipated Commission Decision Authorizing Issuance of Full Power License

ML20093K019
Person / Time
Site:	Diablo Canyon
Issue date:	07/27/1984
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC COMMISSION (OCM)
Shared Package
ML20093K004	List: ML20093K002 ML20093K019 ML20093K035 ML20093K047 ML20093K062 ML20093K069 ML20093K081
References
OL, NUDOCS 8407300422
Download: ML20093K019 (7)

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UNITED STATES OF AMERICA COU;fE" NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION J130 A9 55

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In the Matter of )

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• PACIFIC GAS AND ELECTRIC ) Docket Nos. 50-275 O.L.

COMPANY ) 50-323 0.L.

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(Diablo Canyon Nuclear Power

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Plant, Units 1 and 2) )

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PACIFIC GAS AND ELECTRIC COMPANY'S ANSWER IN OPPOSITION TO JOINT-INTERVENORS'

' APPLICATION FOR STAY On July 25, 1984, Joint Intervenors filed with the Commission and the Appeal Board a document styled

" Application for Stay" seeking a stay of an anticipated decision by this Commission authorizing issuance of a license for full power operation of .Diablo Canyon Nuclear Plant Unit 1. On July 27, 1984, the Appeal Board referred the Application to the Commission. This filing constitutes Pacific Gas and Electric Company's (PGandE's) opposition to

' Joint Intervenors' stay request.

0407300422 840727 PDR ADOCK 05000275 g PDR

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l BACKGROUND l

On March 20, 1984 the Appeal Board issued its decision in the reopened design quality assurance hearings. 1_/ The Board found that PGandE's verification efforts " provide adequate confidence that the Unit 1 safety-related structures, systems, and components are designed to perform satisfactorily in service and that any significant design deficiencies in that facility resulting from defects in [PGandE's] design quality assurance program ,

have been remedied." The Appeal Board further concluded t !' .1 -

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1 that there was reasonable assurance that the facility can be operated without endangering the health and safety of the

M.i Public. In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2) ALAB-763, NRC (1984).

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> LEGAL STANDARDS FOR A STAY The four requirements which must be considered in

_ deciding a stay are set forth in 10 CFR 2.788(e). They are:

"(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits;

-(2) Whether the party will be irrepa-rably injured unless a stay is granted; if Those reopened hearings were conducted in Avila Beach, California, from October 31, 1983 to November 21, 1983.

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( 3') Whether the granting of a stay would harm other parties; and.

(4) Where the public interest lies." '

As we will show below, Joint Intervenors have not made the requisite showing under these criteria to warrant

issuance of a stay.

1 A. Joint Intervenors Have Not Shown A Like-lihood Of Prevailing On The Merits.

In .their application Joint Intervenors raised several issues which they contend would be decided in their favor. Issues concerning alleged design and construction ,

quality deficiencies have been decided in PGandE's favor by the Appeal Board in its decisions of December 19, 1983 (CQA

, ALAB-756) and March 20, 1984 (DQA ALAB-763) and June 28, 1984 (DQA and CQA ALAB-775). In each case, the Appeal Board examined in detail"the Joint Intervenors claims and found .

them wanting.

The issue of operator training claimed as a basis for the stay motion was finally resolved against the Joint Intervenors by the Commission in its Order CLI-84-5 dated April.13, 1984, authorizing low power testing.

There is no NEPA issue. Contrary to the assertion of Joint Intervenors, NEPA does not require that the Final EIS be supplemented following TMI since remote and speculative matters need not be discussed. Vermont Yankee e

i; Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551, (1978) quoting NRDC v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972).

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. [, An accident of the magnitude of class 9 is no more

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1 reasonable today than when the original EIS was completed.

See Metropolitan Edison C_o. v. People Against Nuclear Power, 460 U.S. , 103 S.Ct. 1556, 1561, n. 9 (1983).

l The issue of seismic design adequacy of Diablo Canyon has been decided and final agency action has taken place by

• the Commis'sion, CLI-82-12A, 16 NRC 7 (1982). While a motion ,

i to reopen wah .recently filed by the Joint Intervenors before the Appeal Board, the new seismic data does not alter the prior decision of the Appeal Board, because the possibility of higher ground motion readings was accounted for in the 1

j Board's decision already. In the Matter of Pacific Gas and i Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and

2) 13 NRC 903,. 933 (1981). Consequently, the Joint -

Intervenors are not likely to fulfill the requirement for a 3 motion to reopen that the new information would either be significant or have an effect upon th5 outcome. In the Matter of Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1) AIAB-461, 7 NRC 320, 338 (1978). The mere pendency of a motion to reopen does not in any way provide grounds to support a stay. l With regard to the matter of the effects of earthquakes on emergency planning, this matter is currently pending before the Commission and there is.no reason for the Joint Intervenors to assume they will prevail on the matter.

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i In summary, Joint Intervenors have not prevailed on any issues they have raised before the Boards and the 3 Commission. Accordingly, they have failed to show any likelihood of prevailing on the merits.

B. Joint Intervenors Have Not Shown Any Irreparable Injury If A Stay Is Not Granted.

Joint Intervenors, relying on a one and one half page affidavit 'o'f Mr. Bridenbaugh that refers to the 3 year j old affidavit of Messrs. Hubbard and Bridenbaugh, argue that t

1 l when the plant goes to full power the potential risks that '

t were present during low power testing will be increased by a I significant factor since components will become more l 1

radioactive and in case of an accident during full power I

operation there are potenti'al risks to the public. Hence, they argue that there is irreparable harm to them if full power operation is authorized.

j Neither argument has merit. Taken to its logical l

extreme, the radioactive contamination argument would j require the indefinite staying of any license pending j resolution of an appeal since the inevitable result of the operation of a nuclear power plant is the e.<istence of radioactivity. However, this is hardly a basis for delaying action as Joint Intervenors request.

As for the argument regarding dfission product hazard" from a hypothetical accident, the short answer is j that speculation about a nuclear accident does not, as a i

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l matter of law, constitute the imminent, irreparable injury reTaired to justify a stay of a licensing decision. State op New York.v. NRC, 550 F.2d 745, 756-57 (2 Cir. 1977);

Virginia Sunshine Alliance v. Hendrie, 477 F.Supp. 68, 70 4

(D. D.C. 1979). Further, the issues of fission product inventory and the potential risk of accidents during full ,

power operation have 'been implicitly addressed by the Licensing Board and found to be acceptable. In the Matter of Pacific Gas' and Electric Co. (Diablo Canyon Nuclear <

Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, (1982).

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Accordingly, we see no support for this argument and no need i

for the Commission to delay full power licensing because of it. -

4 C. PGandE Will Be Harmed If A Stay Is Granted And The Public Interest Favors Denial Of A Stay. ,

With the completion cf Commission action, PGandE f

r.tands ready to commence full power operation of Diablo ,

Canyon Unit 1. As the Commicsion is no doubt aware, any delay in the issuance of the ful! rwer license impacts the

- commercial operation date of Mr f3 ility. Each day that passes causes the total cost M. ti.. 52 :ility to dramatically increase and furtiher delays the time when the plant can be relied upon to serve the needs of PGandE's customers. Since I any delay ultimately harms PGandE's , customers, the public interest lies in favor of denying a stay.

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, III CONCLUSION

' Joint Intervenors have failed to satisfy any of four criteria of 10 CFR 2.788(e) which would warrant a stay of PGandE's ' request for a full power license for Diablo Canyon Nuclear Power Plant, Unit 1. Accordingly, the stay motion should be denied in its entirety.

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

RICHARD F. LOCKE DAN G. LUBBOCK Pacific Gas and Electric Company P. O. Box 7442 San Francisco, CA 94120 (415) 781-4211 ARTHUR C. GEHR Snell & Wilmer 3100 Valley Bank Center Phoenix, AZ 85073 (602) 257-7288 1

BRUCE NORTON THOMAS A. SCARDUZIO, JR. l Norton, Burke, Berry & French, P.C.

P. O. Box 10569  :

Phoenix, AZ 85064 l (602) 955-2446 Attorneys for Pacific Gas and Electric Company l

By Bruce Norton DATED: July 27, 1984.

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