CLI-82-10, Order CLI-82-10,declining Review of ALAB-663.Time within Which Commission May Act to Review Expired.Decision Became Final Agency Action on 820514.Separate Views of Commissioners Palladino,Ahearne,Roberts & Gilinsky Encl

Order CLI-82-10,declining Review of ALAB-663.Time within Which Commission May Act to Review Expired.Decision Became Final Agency Action on 820514.Separate Views of Commissioners Palladino,Ahearne,Roberts & Gilinsky Encl

ML20054H291
Person / Time
Site:	Summer
Issue date:	06/22/1982
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
ALAB-663, CLI-82-10, ISSUANCES-OL, NUDOCS 8206230204
Download: ML20054H291 (11)

Text

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w UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts SEVED Jg3331982

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In the Matter of )

)

SOUTH CAROLINA ELECTRIC AND GAS ) Docket No. 50-3950L COMPANY, ET AL. )

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(Virgil C. Summer Nuclear Station, Unit 1))

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ORDER (CLI-82-lD)

The Commission by a vote of 3-1, with Commissioner Gilinsky disapproving, has declined to review the Appeal Board decision ('ALAB-663) in this docket. The time provided by NRC regulations within which the Commission may act to review has expired. Accordingly, the decision became final agency action on May 14, 1982. The separate views of individual Commissioners follow.

It is so ORDERED.

49M4 Fo'r the Commission f L c....

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- E i SAMUEL J. CHILK k,'fT[3Y Secretary of the Commission

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Dated at Washington, D.C.

thisN day of June,1982.

n 8206230204 820622 PDR ADOCK 05000395

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SEPARATE VIEWS OF CHAIRMAN PALLADIN0 I strongly disagree with Commissioner Gilinsky's view that the standard prescribed by the Appeal Board in ALAB-663 "will serve only to hobble the Licensing Boards." That standard, which centers directly on the Board's ability to reach an " informed decision," can hardly be f airly charac-terized as intended "to hobble," in my opinion.

Furthermore, Commissioner Gilinsky ignores that the Boards were directed in ALAB-663 not to sacrifice anything of significance in the way of health and safety bases for their decisions. As the Appeal Board said:

"We certainly do not suggest that a licensing board should ignore deficiencies in the staff's analysis and testimony or play no role in the development of a complete record. The protection of the public health and safety is a paramount concern. Thus, as we have noted previously, it is a licensing board's right and obligation 'to satisfy itself that the conclusions expressed by expert witnesses on significant safety or environmental questions have a solid foundation.' Our point is simply that the adjudicatory boards should give the staff every opportunity to explain, correct, or supplement its testimony before resorting to outside experts of their own. Moreover, the boards' use of such consultants should be based on more than intuition and vague doubts about the reliability of the staff's presentation: the boards must articulate good reason to suspect the validity and completeness of the staff's work. That is what we meant in requiring a demonstra-tion 'beyond question that a board simply cannot otherwise reach an informed decision on the issue involved.'

"The Licensing Board stated that it did 'not see how that standard can ever be satisfied.' We, of course, disagree. If the staff is unable or unwilling to clarify its testimony on a significant safety issue and the other evidence of record is similarly unresponsive to a licensing board's articulated concerns, the board

2 is free under our standard to seek'outside testimony in an effort to resolve the matter. ... " ALAB-663, Slip Opinion at 31-32 (citations and footnote omitted).

Commissioner Gilinsky wants the Commission to review ALAB-663 because he disagrees with the Appeal Board standard. I believe that standard is consistent with Commission policy, and I do not disagree with it.

Therefore, I would not vote to review.

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SEPARATE VIEWS OF COMMISSIONER AHEARNE Commissioner Gilkinsky obviously has a different view of the events than I do. And, of course, he is entitled to interpret them as he wishes. However, I would like it recorded that I believed the Licensing Board to be wrong. A reading of the transcripts of the Licensing Board's announcements that it was calling witnesses, the method of responding to the Appeal Board, and the procedures followed by the Licensing Board all evidence a belief that the Licensing Boards should conduct an independent technical review. Perhaps Commissioner Gilinsky believes they should. I do not--I believe they are to resolve issues in dispute, using first the resources of the parties. I believed the Appeal Board was placed in an unusual position and tried its best to maintain some rationality in the NRC licensing process.

Therefore, to at least indicate Commissioner Gilinsky's views are not shared by all Commissioners, please include these views with his.

2 SEPARATE VIEWS OF COMMISSIONER ROBERTS Commissioner Roberts concurs in the separate views of Commissioner Ahearne. Additionally, Commissioner Roberts notes that he wished to affirm summarily but was advised by General Counsel that briefs should be requested.

The NRC lawyers should not have taken this course. They had no legitimata interest in excluding these witnesses and, in any event, the case could have been decided more expeditiously if the Licensing Board had simply been allcwed to go forward. This legal maneuvering reinforces my view that the NRC staff should not be a formal party to licensing proceedings and that it should be limited to serving as an advisor to the Boards.

The NRC adjudicatory boards' handling of the case was no better. On August 10, 19G1, the Appeal Board ordered the Licensing Board to explain its reasons for calling its own witnesses. The Licensing Board responded on the same_ day.

On August 25th, the Appeal Board said that interlocutory review might be warranted but delayed ruling on the staff's petition because it wanted to give the staff an opportunity to file supplemental testimony.

On August 27th, the Appeal Board published another memorandum in which it again declined to rule on the staff's petition. However, the Appeal Board discussed the issues at some length and stated that the Licensing Board should call independent witnesses only in "that most extraordinary situation in which it is demonstrated beyond question that a board simply cannot otherwise reach an informed decision on the issue invclved." From the discussicn, it is clear that

. the Appeal Board strongly doubted that this' standard could be met by the Licensing Board.

In the meantime, the experts selected by the Licensing Board prepared their reports, which the Licensing Board issued-to the parties during Septmeber, 1981. However, the Board's experts were not yet called upon to testify before the Board. On October 2, the Appeal Board directed the Licensing Board not to call its independent consultants to the stand as witnesses until it had furnished the Appeal Board with a detailed statement of its reasons for doing so and until the Appeal Board had ruled on the staff's motion for directed certification.

On October 15, the Licensing Board issued an Order l

reaffirming its intention to call its experts to the stand as witnesses and explaining its reasons for doing so. On i

l October 19th, the Appeal Board denied the staff's motion for l-directed certification stating that, while it would be justified in taking interlocutory review of the merits of the seismic issue, it would refrain from doing so in order r to avoid further delav. On December 14, 1981, the Appeal l

l Board issued the memorandum which is presently before the Commission and in which the Appeal Board reiterates its position that a Licensing Board should call its own witnesses only in "that most extraordinary situation in

[ which it is demonstrated beyond cuestion that a board simply

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i cannot otherwise reach an informed decision on the issue l

involved."- The Licensing Board's experts finally took the i stand to testify during the week of January 11, 1982.

i Instead of playing cat and mouse, the Appeal Board should have either granted or denied the staff's petition for interlocutory review. With regard to the merits, the Appeal Board should have chosen a more liberal standard which would help the Licensing Boards in fulfilling their function. The I

standard it picked is, as a practical matter, almost impossible to meet and will serve only to hobble the l Licensing Boards.

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The Licensing Board's actions may, in their own way, be as i

4 deficient as the Appeal Board's. The Chairman of the f Licensing Board Panel has informed the Commission that the Licensing Board's disregard for the Appeal Board's directives stemmed, in part, from the Licensing Board's fear that, without the testimony of its own witnesses, it would j not be able to rule in favor of issuing an operating license. The Licensing Board should have obeyed the Appeal Board directive, however misguided, and, if the record did not justify a decision favorable to the applicant -- who has the burden of proof -- the Licensing Board should have f

denied the operating license.

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Neither of this agency's adjudicatory _ bodies has been able to deal with this case in a straightforward fashion. The Boards have concentrated upon extraneous factors rather than upon their responsibility to ensure the health and safety of the public. Their contradictory efforts to guarantee the prompt licensing of this plant have warped the procedural rules which govern our proceedings.

Of course, the Boards have been getting their cues from the Commission itself. In the present instance, the General Counsel advised the Commission that it could take review or not take review, obtain the views of the parties or issue a decision without doing so, or that it could issue a letter

-- rather than an order -- stating that it did not endorse the Appeal Board's standard, or any other specific standard, and would not do so until the agency's lawyers and adjudicatory panels had had a chance to give the matter some more thought. Needless to say, the General Counsel recommended, and the Commission adopted, the latter course.

In effect, the Commission is saying that although the Appeal Board applied the wrong standard, its heart was in the right place.

The Commission would have done better to take review of the decision, hear the parties, and issue a decision setting forth the proper standard. Alternatively, if the Commission approved of the standard enunciated by the Appeal Board, in J

should have summarily affirmed. The course it chose leaves the Boards and litigants wondering about the presently applicable standard and fortifies the impression that the Cornission is incapable of deciding a case.

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SEPARATE VIEWS OF COMMISSIONER GILINSKY The Commission should have taken' review of this Appeal Board

, decision. By setting up a new and nearly insurmountable threshold for when a Licensing Board may call its own witnesses, the Appeal Board has tried to limit the authority of the Licensing Boards and reduce their role to that of a blinkered referee. If the Commission wishes to thus constrain its Licensing Boards, it should say so itself, i

rather than by proxy.

This matter arose during the course of the Summer operating license hearing. The Licensing Board was uncomfortable with the " state-of-the-art modeling techniques" employed by the NRC staff and the applicant in their seismic analyses of the Summer site. During the week of July 6, 1981, the Licensing Board indicated that it wished to retain a number of experts in the seismic field, who would appear as its own witnesses, to help it understand these analyses.

4 The applicant did not oppose this proposal. However, the NRC lawyers, protecting the staff's bureaucratic interests, objected vociferously and demanded that the Appeal Board take interlocutory review of the case. This set in motion a chain of events that has resulted in a colossal waste of time and effort.

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