ML16216A288
| ML16216A288 | |
| Person / Time | |
|---|---|
| Site: | McGuire, Mcguire  |
| Issue date: | 01/06/1981 |
| From: | Bishop C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | DUKE POWER CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| References | |
| ALAB-626, ISSUANCES-OL, NUDOCS 8101090268 | |
| Download: ML16216A288 (5) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Alan S. Rosenthal, Chairman Dr. John H. Buck Richard S. Salzman In the Matter of
)
DUKE POWER COMPANY
)
(William B. McGuire Nuclear Station, )
Docket Nos. 50-369 OL Units 1 and 2)
)
50-370 OL MEMORANDUM AND ORDER January 6, 1981 (ALAB-626)
- 1.
On November 5, 1979, the Commission amended its Rules of Practice (10 CFR Part 2) by, inter alia, the addi tion of an Appendix B entitled "Suspension of 10 CFR §2.764 and Statement of Policy on Conduct of Adjudicatory Proceed ings."
44 Fed. Reg. 65050 (November 9, 1979 ).
In rele vant part, Appendix B provides that Licensing Board decisions "shall not become effective until the Appeal Board and Com mission actions outlined (in the Appendix] have taken place."
Insofar as the appeal boards are concerned, that action is as follows:
1/ Section 2.764 provides for the immediate effectiveness of initial decisions directing the issuance or amendment of a construction permit or operating license.
v C
2 Within sixty days of the service of any Licensing Board decision that would other wise authorize licensing action, the Appeal Board shall decide any stay motions that are timely filed. For the purpose of this policy, a "stay" motion is one that seeks to defer the effectiveness of a Licensing Board decision beyond the period necessary for the Appeal Board and Commission action described herein. If no stay papers are filed, the Appeal Board shall, within the same time period (or earlier if possible),
analyze the record and decision below on its own motion and decide, whether a stay is.warranted. It shall not, however, decide that a stay is warranted without giving the affected parties an opportunity to be, heard.
n deciding these stay questions, the Appeal Board shall:employ the procedures set out in'10 CFR 2.788.
However in addition to the factors set out in 10 CFR 2.788(e)., the Board will give particular attention to whether issuance of the li cense or permit prior to full administra tive review may:
(1) Create novel safety or environmental issues in light of the Three Mile Island accident; or (2) pre judice review of significant safety or environmental issues.
In addition to.de ciding the stay issue, the Appeal Board will inform.the Commission if it believes that the case raises issues on which prompt Commission policy guidance, particularly guidance on possible changes to present Commission regulations and policies, would advance the Board's appellate review. If the Appeal Board is unable to issue a de cision within the sixty-day period, it should explain the cause of the delay to the Commission. The Commission shall there upon either allow the Appeal Board the addi tional time necessary to complete its task or take other appropriate action, including taking the matter over itself. The running of the sixty-day period shall not operate
to make the Licensing Board's decision effective. Unless otherwise ordered by the Commission, the Appeal Board will conduct its normal appellate review of the Licensing Board decision after it has issued its decision on any stay re quest.
Ibid; footnote omitted.
- 2.
On November 25, 1980, the Licensing Board entered an unpublished order in this operating license proceeding involving the McGuire nuclear facility. In that order, the Board acted upon the motion of the applicant for sum mary disposition with regard to its entitlement to a li cense for Unit 1 authorizing fuel loading, initial criti cality, zero power physics testing and low-power testing.
The Board resolved the matter in the applicant's favor as to all of those activities except low-power testing. Re specting that phase, it concluded that a genuine issue of material fact had been raised by the intervenor, Carolina Environmental Study Group.
Although the order does not bear the "decision" label, it does authorize "licensing action" and therefore comes within the ambit of Appendix B. No motion for a stay (or indeed exceptions) having been filed by any party, our task is to review the order and the underlying record on our own initiative to determine whether a stay is nonetheless warranted.
-4 Our examination of the portion of the record pertaining to the motion for summary disposition persuades us that the Board below correctly granted the motion insofar as fuel loading, initial criticality and zero power physics testing are concerned.
(We are not called upon to consider, and thus express no opinion on, the Board' s denial of the balance of the motion.)
Applying the criteria specified by the Com mission in its Statement of Policy, we (1) conclude that no stay of the November 25 order is warranted; (2) affirm the order to the extent here reviewed; and (3) advise the Com mission. that, in our judgment, the order raises no issues requiring its prompt policy guidance.
It is so ORDERED.
FOR THE APPEAL BOARD C. Je Bishop Secret,ry to the
-Appeal Board