ML17139A251
| ML17139A251 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 06/22/1981 |
| From: | Laverty J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8106240127 | |
| Download: ML17139A251 (15) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 6/22/81
'b EFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
AND ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehannna Steam Electric Station, Units 1 and 2)
Docket No 5 -
8 NRC STAFF
RESPONSE
TO CITIZENS AGAINST NUCLEAR DANGERS MOTIUNS BEFORL'HE APPEAL BOARD REGARDING ASLB MEMORANDUM AND ORDER DATED MAY 20 1981 On June 2,
1981, Citizens Against Nuclear Dangers (CAND) filed a motion before the Appeal Board seeking to appeal various rulings miade by the Licensing Board in its "Memorandum and Order on Pending Motions" of May 20, 1981.
Specifically, CAND requested that the Appeal Board direct the Licensing Board (1) to retract and reconsider its decision dismissing Environmental Coalition on Nuclear Power (ECNP) from participation in the Susquehanna operating license safety hearing in light of CAND's motion of May 7,
- 1981, (2) to retract and reconsider its decision granting Appli-cants'otion for summary disposition of Contention 12 in light of CAND's motion of May 14,
- 1981, (3) to rescind and reconsider its decisions deny-ing requests for a hearing on Applicants'equest for a Part 70 license and on Applicants'lleged plan to request a Part 30 license in light of the Supreme Court's decision to grant certiorari of ~Shell
- v. Nuclear Re viator Commission, No. 80-1691 (D.C. Cir. November 19, 1980), cert.
granted suh non.
United States Iiuclear Re ulator Commission
- v. ~Shell (llay 26, 1981),
and (4) to rescind and reconsider its decision granting
~go'I 5/I
ll
'I Applicants'otion for summary disposition of several portions of Contention 17 because the Board's decision referred primarily to the Atomic Energy Act and the Commission's regulations rather than to the National Environmental Policy Act (NEPA).
The NRC Staff (Staff) opposes all of these requests for the reasons set forth bel'ow.
II.
OISCuSS10N A.
Dismissal of ECNP from Safet Hearin In response to the Board's reinstatement of the duty of parties to provide responses to outstanding discovery requests on the health and safety issues admitted as contentions in this operating license proceed-
- ing, the Environmental Coalition on Nuclear Power (ECNP) provided the Ij following:
L'dej simply cannot in good conscience or within the limits of our capabilities and resources answer the interrogatories at this time.
Nor can we guarantee that we will be in a better position to answer them in the future if we are also to be of assistance to this doard by participation in the health and safety hearing.
Q2 As the Staff considered ECNP's justification for its failure to respond to discovery requests to be contrary both to the Commission's Rules of Practice and to the numerous board rulings on discovery, the Staff sought an order from the Board compelling ECNP to provide full, direct, and jl'1emorandum and Order Establishing New Discovery Schedule for Safety
- Issues, November 12, 1980 [hereinafter referred to as tiemorandum and OrderJ.
ECNP Intervenors'esponse on Health and Safety Interrogatories, January 15, 1981, at 2.
responsive answers to the Staff's outstanding discovery requests'his motion was granted.~
ECNP filed no responses to the Staff's outstanding 4/
health and safety interrogatories.
In response to this failure to comply with the Board's Order, Applicants moved to dismiss ECNP from this pro-ceeding.~
The Staff supported Applicants'otion.
In its "memorandum 5/
and Order on Pending Motions" of tray 20, 1981, the Licensing Board, find-ing that "a proper respect for fairness and prompt adjudication" required an "end to ECNP's deliberate frustration of this proceeding,"
granted Applicants'otion with respect to [ECNP's] participation on health and safety contentions.~6/
As a general
- matter, a Licensing Board's action is final for appel-late purposes when it either disposes of at least a major segment of the case or terminates a party's right to participate.
Toledo Edison Co.
(Davis-Besse Nuclear Power Station),
ALAB-300, 2 NRC 752, 758
( 1975).
As the Licensing Board's action here terminated ECNP's right to participate in the safety hearing, it is clearly a final action and thus appealable.~7/
A party may appeal such a ruling, however, only if that party can Q3 NRC Staff's llotion for an Order Compelling Citizens Against Nuclear Dangers and Environmental Coalition on Nuclear Power to Respond to Staff's Oiscovery Requests Relating to Health and Safety Issues, January 30, 1981, at 6.
Q4 f<emorandum and Order (Uirecting CANU and ECNP to Respond to Interrogatories),
February 27, 1981.
Q5 Applicants'<otion to Dismiss Environmental Coalition on Nuclear Power from this Proceeding, April 14, 1981.
Q6 ttemorandum and Order on Pending t3otions, tiay 20, 1981 (slip opinion at 27 and 30).
Q7 Cf. Houston Lighting and Power Co. (Aliens Creek Nuclear Generating Station, Units 1 and 2), ALAB-301, 2 NRC 853, 854 (1975).
establish that some discernible injury to it has been sustained as a
consequence of the ruling.
Toledo Edison Co.
(Davis-Besse Nuclear Power Station),
ALAB-157, 6 AEC 858, 859 (1973); Northern States Power Co.
(Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 AEC
- 1175, 1177 (1975)
(emphasis added).
In other words, in order to appeal, a party must have been aggrieved by the result reached below.
Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-282, 2 HRC 9, 10 (1975);
Rochester Gas and Electric Co. (Sterling Power Project, Nuclear Unit 1),
ALAB-502, 8 NRC 383, 393 n.
21 (1978).
This is not the case here.
ECNP has been dismissed, not CAND.
CAND has no standing to press before the Appeal Board the grievances of other parties to the proceeding.
Houston Li htin 5 Power Co. (Aliens Creek Nuclear Generating Station, Unit Ho. 1),
ALAB-631, 13 NRC (February 4, 1981);
Pu et Sound 5 Li ht Co.
(Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30, 32-33 (1979);
USERDA (Clinch River Breeder Reactor Plant), ALAB-345, 4 NRC 212, 213 (1976).
CAND is similarly not entitled to complain of a licensing board ruling unless and until that ruling has worked a concrete injury to its interests Prai.rie Island,
~so ra.
As CANO itself has not been aggrieved by the Licensing Board's dismissal of ECNP, CAND may not appeal this action>'n addition to the fact that CAND is not the proper party to appeal ECNP's dismissal, CAHD has alleged no discernible injury.
The closest
+8 Cf. Sierra Club v. Morton, 405 U.S.
727 (1972).
approximation to such an. allegation in CAND's appeal is its vague and unexplained reference to "ECNP's civil rights."~
This is too general and
, 9/
unclear to constitute an allegation of discernible injury.
Rather than allege such an injury, CAND has requested that the Appeal Board order the Licensing Board to rescind and reconsider its decision in light of CANU's motion of Hay 7, 1981.~
This motion contains a list of CAND 10/
motions which CAND asserts are still pending before the Licensing Board.
In its response of Hay 15,
- 1981, Applicants note that of the fourteen ll/
listed motions, all but four have been specifically ruled on in various Board orders.
Of the remai ning four, three have since been dealt with in the Licensing Board's "Memorandum and Order on Pending Motions" of Hay 20, 1981.
In effect, CAND has asked that the Appeal Board direct the Licensing Board to reconsider its decision dismissing ECNP from participation in the safety hearing on the ground that several of its motions are still pending before the Licensing Board.
As all but one of these motions have, in fact, been ruled on by the Licensing Board and as the one motion that has not been ruled on is completely unrelated to the Q9 Citizens Against Nuclear Dangers Motion Before the Appeal Board Regarding ASLB Memorandum and Order Dated Hay 20,
- 1981, June 2,
1981 at 1.
r
~10 Citizens Against Nuclear Dangers Motion Concerning Intervener Participation, and Motion to Resolve Backlog of Motions, Hay 7, 1981.
~11 Applicants'nswer to "Citizens Against Nuclear Dangers Motion Concerning Intervenor Participation, and Motion to Resolve Backlog of Motions," Hay 15, 1981.
matter in question here,~
CAND has asserted no valid reason why the 12/
Licensing Board should be ordered to reconsider its decision.
Accordingly, CAND's appeal of ECNP's dismissal from the safety hearing should be denied.
B.
Summar Dis osition of Contention 12 Un triarch 9, 1981, Applicants moved for suneary disposition of Contention 12 which alleges that the design of the Susquehanna Steam Electric Station "fails to solve the problem of flow-induced vibrations in the core, thereby creating in-vessel sparger failure," The Staff
'i l 3/
supported this motion.~
Section 2.749 of the Commission's Rules of 141 Practice provides that an answer opposing a motion for summary disposition may be filed by any other party within 20 days of service of such a motion.
That section also provides that a
statement of the material facts which the opponent contends present a
~12 On i1arch 16,
- 1981, CAND filed its "Statements of Notions Concerning Discovery, Summary Disposition and Ex Parte Actions", where it moved the Board "to issue an order compelling the NRC Staff to publish I.the
- FES, FSAR and SER] forthwith"; to "investigate the several affidavits, filed by the Applicants and the NRC Staff supporting summary disposition of the various contentions for instances of misinformation, which if and when verified, should be stricken from the record, and appropriate action taken by the Licensing Board to insure against repetitions;" and, in relation to a letter sent by the president of Pennsylvania Power and Light Co.
to the acting Chairman of the Commission regarding the licensing schedule for Susquehanna, "to order the corporate officers involved to cease and desist from further attempts to pressure the Corm>ission."
These motions of l1arch 16, 1981 await a ruling by the Board.
~13 Applicants'otion for Summary Dispositon of Contention 12, March 9,
1981.
~14 NRC Staff Response Supporting Applicants'otion for Summary Disposition of Contention 12, triarch 30, 1981.
genuine issue to be heard should be attached to 'the answer.
Instead of complying with the Commission's summary disposition procedures, CAND filed a motion on Hay 14, 1981 requesting that the Licensing Board determine whether the issue raised by Contention 12 (feedwater sparger failure) is related to the issue raised by NUREG-0785 (safety concerns associated with pipe breaks in the boiling water reactor scram system).~
This untimely motion clearly fails to 15/
satisfy the requirements imposed by 10 CFR 2.749 on an opponent to a
motion for summary disposition.
Now CAHD has requested that the Appeal Board direct the Licensing Board to rescind and reconsider its grant of Applicants'otion to summarily dispose of Contention 12 because the Licensing Board has not ruled on CAflD's May 14 motion.
In this case, the Licensing Board's order granting Applicants'otion for summary disposition is not a final order but rather is interlocutory because CAND has not been eliminated as a party to this proceeding.
Cincinnati Gas and Electric Co.
(William W. Zimmer Station),
ALAB-638, 13 WRC (February 9,
1981) (slip opinion at 1).
Furthermore, as Contention 12 was solely sponsored by another party to this proceeding, the Board's summary disposition of it does not affect CAND's ability to participate in this proceeding in any way.
Finally, the Staff notes that 10 CFR 2.749 clearly imposes on CAND, not on the Licensing Board or trier of fact, the duty to controvert Applicants'15 Citizens Against Nuclear Dangers Statement Before the Appeal Board; Statement of Policy and Request for Commencement, of Hearings; Notion before the Licensing Board on Contention 12, May 14, 1981.
statement of material facts accompanying its motion for summary disposition.
By asking that the Licensing Board determine if there is any relationship between Contention 12 and NUREG-0785, CAND has, in effect, requested that the Licensing Board fulfillCAHD's responsibilities in this regard.'ccordingly, CAND's appeal of the Licensing Board's grant of Applicants'otion to summarily dispose of Contention 12 should be denied.
C.
CANO's Re uests for Hearin s
On tiarch 9,
- 1981, a copy of Applicants'pplication for a Part 70 license authorizing receipt, possession,
- storage, inspection, and packaging for transport of nuclear fuel bundles/assemblies was served on the Licensing Board and on all the parties to this proceeding.
No such similar application has been received by the Staff for a Part 30 license to store low level radioactive waste onsite.
On triarch 27,
- 1981, CAND requested that the Licensing Board conduct a hearing on both of the above matters.
In its "i~1emorandum and Order on Pending t1otions" of 16/
l3ay 20, 1981, the Licensing Board denied CAND's requests, declining to assume jurisdiction over the Part 70 license application and ruling that CANU's request for a Part 30 license hearing was premature.
How CAND has requested that the Appeal Board direct the Licensing Board to
~16 Citizens Against Nuclear Dangers Statement on Interrogatories and flotions before the Licensing Board, March 27, 1981 at 2-3.
rescind and reconsider its decisons in light of the Supreme Court's grant of certiorari of ~Shell
- v. Nuclear Re ulator Commission, Iio.
80-1691 (B.C. Cir.
November 19, 1980), cert. granted sub nom. United States Nuclear Re ulator Commission
- v. ~Shell
((<ay 26, 1981).
Again, CAHD's appeal is interlocutory as the Licensing Board's decisions below neither disposed of a large segment of the case nor terminated CAIID's right to participate in the proceeding.
Davis-Besse, ALAB-300, ~su ra.
Furthermore, in light of "Applicants'equest for Clarification of Licensing Board's Ruling on Requests for Hearing" of.
June 9, 1981, CAND's appeal is premature at this time.
D.
Partial Summar Dis osition of Contention 17 On August 22, 1980 and on December 8,
1980, Applicants moved for summary disposition of all portions of Contention 17.~
The Staff 17/
supported in part and opposed in part these motions.~
The Licensing 18/
Board granted Applicants'otions on all but one part of Contention 17.
~17 Applicants'otion for Partial Summary Disposition of Contention 17 (Ozone),
August 22, 1980; Applicants'otion far Partial Summary Disposition of Contention 17, December 8, 1980.
~18 NRC Staff Answer in Support of Applicants'otion for Partial Summary Disposition of Contention 17 (Ozone),
November 25, 1980; r<RC Staff Response Supporting in Part and Opposing in Part Applicants'otion for Partial Summary Disposition of Contention 17, January 9,
1981.
CAND has now requested that the Appeal Board direct the Licensing Board to rescind and reconsider its decision because its order referred to the Atomic Energy Act and the Commission's rules rather than to the National Environmental Policy Act (NEPA).
CAND's appeal of the Licensing Board's partial grant of summary disposition is interlocutory and thus not appealable.
Davis-Besse, ALAB-300, ~su ra 10 Cfk 2.730(f).
Furthernore, the basis advanced for its request is completely unsupported by a reading of the Licensing Board's order.
The portion of that order ruling on Contention 17 makes no reference to the Atomic Energy Act.
Rather, it refers to various environmental laws including the Clean Air Act, 42 UCS 7401, et ~se and the Noise Control Act, 42 UCS 4901 et
~se Again, CAND's appeal should be denied.
19/
III.
CONCLUSION In sum, CAND's appeal should be denied in its entirety.
Respectfully submitted, Dated at Bethesda, Maryland this 22nd day of June, 1981 essica H. Laverty M Counsel for NRC Staff
~19 Memorandum and Order on Pending Motions, May 20, 1981 (slip opinion at 2-14).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station, Units 1
and 2)
)
)
)
Docket No. 50-387
)
50-388
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CITIZENS AGAINST NUCLEAR DANGERS MOTIONS BEFORE THE APPEAL BOARD REGARDING ASLB MEMORANDUM AND ORDER DATED MAY 20, 1981", in the above-captioned proceeding, have been served on the following by deposit in the United States mail, or as indicated by an asterisk thorugh deposit in the Nuclear Regualtory Commission's internal mail system this 22nd day of June, 1981:
- Richard S. Salzman, Esq.,
- Chairman, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Dr. John H. Buck, Member, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.CD 20555
- Mr. Thomas S. Moore,
- Member, Administrative Judge Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jay Silberg, Esq.
Shaw, Pittman, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Bryan A. Snapp, Esq.
Pennsylvania Power
& Light Company Two North Ninth Street Allentown, Pennsylvania 18101 Dr. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P. 0.
Box 2063 Harrisburg, Pennsylvania 17120 Ms. Colleen Marsh Box 538A, RD¹4 Mountain Top, Pennsylvania 18707 Mr. Thomas J. Halligan Correspondent:
CAND P. 0.
Box 5
- Scranton, Pennsylvania 18501
James P. Gleason, Chairman Administrative Judge 513 Gilmoure Drive Silver Spring, jiaryland 20901
+iir. Glenn 0. Bright, Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. Paul W. Purdom, Administrative Judge 245 Gulph Hills Road
- Radnor, Pennsylvania 19087 "Atomic Safety 5 Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 "Atomic Safety 5 Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Secretary U.S. Nuclear Regulatory Commission ATTN:
Chief, Docketing 5 Service Branch Washington, D.C.
20555 Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
P. 0.
Box 1560 Wilkes-Barre, PA 18703 Hr. Robert N. Gallo.
Resident Inspector P. 0.
Box 52 Shickshinny, Pennsylvania 18655 Robert W. Adler
~
Department of Environmental Resources 505 Executive House P. 0.
Box 2357 Harrisburg, Pennsylvania 17120