ML17207A757
| ML17207A757 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/18/1980 |
| From: | Olmstead W, Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001280137 | |
| Download: ML17207A757 (13) | |
Text
UNITED STATES OF nt'lE RICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of FLORIDA POWER 5 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 2)
Docket No. 50-389 NRC STAFF RESPONSE TO INTERVENCRS'OTION TO CONSIDER CLASS 9 ACCIDENTS INTRODUCTION Intervenors, Rowena E. Roberts, et al.,
have moved the Atomic Safety and Licensing Appeal Board in this proceeding to enter an order requiring the NRC Staff to prepare a supplement to the FES which considers the environ-mental consequences of Class 9 accidents at St. Lucie or which justifies why such consideration should not be given and, in addition, to establish pre-hearing and hearing procedures for determining the adequacy of such a supple-ment.
In the alternative, Intervenors ask:
that further proceedings be stayed until the NRC Staff makes the recommendations called for by the Commission in Offshore Power S stems, or that the Appeal Board certify to I/
the Commission the questions arising from the application of the Commission's decision to these proceedings.
+1 Offshore Power S stems (Floating Nuclear Plants),
CLI-79-9, 10 NRC September 14, 1979
Intervenors served their motion on the parries at the recent hearings beiore the Appeal Board in Coral Gables,
- Florida, on December 13, 1979.
(Tr. 398)
The Appeal Board requested that the Applicant and the HRC Staff address three points in further filings responding to Intervenors'otion:
(1) the jurisdiction of the Appeal Board to consider the motion; (2) other avenues of relief available to the Intervenors within the Comaission (in the event it is concluded that the Appeal Board lacks jurisdiction); and (3) the merits of the arguments raised in the motion.
(Tr. 868)
The NRC Staff believes that the Appeal Board is without jurisdiction to grant the requested relief.
Other appropriate relief is available to Intervenors.
They can address a request for relief to the Director of the Office of Nuclear Reactor Regulation pursuant to 10 CFR 5 2.206, they can petition to partici-pate in the operating license proceeding when it is noticed, or they can participate in the rulemaking proceeding which the Commission has indicated its intent to conduct.
In any event, the arguments raised by Intervenors are insufficient to require further'inquiry into the environmental consequences of Class 9 accidents at St. Lucie as a part of the currently pending proceeding.
DISCUSSION 1.
The A
eal Board is Without Jurisdiction to Grant the Re uested Relief.
On October 7, 1977 the Appeal Board affirmed the Licensing Board's Initial Decision authorizing the Director of Nuclear Reactor Regulation to issue a
construction permit for St. Lucie Unit 2 at Florida Power and Light's Hutchin-son Island site on Florida's east coast.+
However, jurisdiction was retained Q2 Florida Power and Li ht Com n
(St. Lucie Unit 2), ALAB-435, 6 HRC over three issues:
steam generator tube integrity, the stability of the applicant's electrical grid and radon.-"
The steam generator tube issue was finally resolved in April 1979 leaving only the electrical grid issue and radon as matters over which this Board has jurisdiction.
In their present motion the Intervenors have not attempted to demonstrate that there is a particular Class 9 accident related to grid stability or radon.
Rather, citing the Appeal Boards'each Bottom decision, they have chosen to argue that since the Coiomission's Offshore Power S stems decision was rendered prior to the relinquishment of all jurisdiction by this Board,
"...it is appropriate for'his Appeal Hoard to retain jurisdiction to dispose of the factual and legal issues."+
Intervenors'eliance on Peach Bottom is misplaced.
In that case the Appeal Boards were implementing a Commission directive to consider a specific issue in all proceedings "still pending before Licensing or Appeal Boards".
The Commission specifically required that "fwjhere cases are pending before Appeal
- Boards, the Appeal Boards are also directed to reopen the records to receive new evidence on radon releases and on health effects resulting from Q3 The grid issue was retained as the result of an October 28, 1977 order amending ALAB-435.
The Board also has jurisdiction over radon releases as in other cases pursuant to a Commission directive contained in 43 Fed.
Reg.
15613 (April 14, 1978).
Q4 ALAB-537, 9 NRC 407 (1979).
/5 Notion p.
3 citing Philadel hia Electric Com an
, et al.
(Peach Bottom Units 2 and 3
, ALAB-480, 7 RRC 796 (1978).
/6 Peach
- Bottom,
~so ra, p.
799.
4 radon releases."~
- Thus, the Commission specifically gave jurisdiction over w7~
that issue to the Appeal Boards even in cases where the environmental record was finally decided and even though no party had placed the matter in issue.
The Peach Bottom Appeal Boards specifically rejected arguments that their jurisdiction did not attach in cases where limited issues remained before it, noting the grant of jurisdiction in the Comission's Order.
Unlike Peach Bottom, the Commission's Offshore Power S stems decision con-tains no special grant of jurisdiction to Licensing Boards or Appeal Boards to consider Class 9 accidents in pending cases.
In Black Fox, the Appeal Board specifically noted this fact stating: "...[T]he Commission has reserved to itself the right to decide whether such matters are to be considered in any given case until it adopts a new general policy."-
The HRC Staff does not believe that Offshore Power S stems affects the proposition that boards can admit Class 9 contentions where an affirmative showing is made pursuant to existing rules that other accident assumptions may be more suitable than those described in the proposed annex to Appendix D to 10 CFR Part 50.
[36 Fed.
Reg.
22851 (1971)]
This, of course, leaves Intervenors'otion subject to the applicable rules and case law which govern jurisdiction of the Boards Q7 43 Fed.
Reg.
- 15613, 15615 (April 14, 1978).
8/
Peach Bottom, p.
802 n. 4.
Q9 Public Service Co. of Oklahoma et al. (Black Fox Units 1 and 2),
ALAB-573, 10 NRC, Slip op.
p.
31 (1979).
to consider Class 9 contentions~
and which state the standards for reopening records for receipt of additional contentions.
The applicable case law governing lntervenors'otion is set forth in Public Service Com an of t(ew Ham shire, et al. (Seabrook Units 1
and 2), ALAB-513, 8
NRC 694 (1978).
There the Appeal Board held that it lacked authority to reopen the record on an issue to which finality had attached even though it still retained before it a discrete issue in the proceeding.~
Intervenors'ffort to raise the Class 9 issue in this proceeding has been previously rejected by the Licensing and Appeal Boards and their appeal of that decision has been denied in the courts.
- Likewise, a motion to reopen the record would be inappropriate because the appellate process has been completed arld the'decision in this proceeding is final except for the limited issues of grid stability and Table S-3 (radon)'ver which jurisdic-tion has been retained.
1 ee e.g.,
onsumers Power Co. (Midland Units 1 and 2), ALAB-123, 6 AEC
- 331, 347 (1973; Wisconsin Electric Power Co., et al. (Point Beach).
ALAB-137, 6 AEC 491, 5
1973; Lon Islan Ls tsn Co.
(Shoreham),
ALAB-156, 6 AEC 831, 835 (1973);
and Penns lvania Power 5 Li ht Co.
(Susquehanna Units 1 and 2), LBP-79-29, 10 NRC, October 19, 1979).
lljr' NRC 694, 695; accord, Washin ton Public Power Su l
S stem (WPPSS Projects 3 and 5~ALAB-501, 8 NRC 3
1 197; Public Service Com an of Indiana, Inc. (Marble Hill Units 1
and 2), ALAB-530, 9 NRC 261 1979);
Houston Li htin and Power Co., et al.
(South Texas Units 1 and 2),
ALAB-381, 5 HRC 582 1977 12/
Nodder v.
- NRC, 589 F.2d 1115 (D.C. Cir. 1978). cert denied U.S.
It is true, of course, that jurisdiction to entertain new matters where finality has attached to some but not all issues may lie if there exists a
reasonable nexus between the new matter and the issues remaining for resolu-tion. Even assuming the Board s limited jurisdiction in this instance could be stretched to encompass a Class 9 contention, Intervenors have failed to so allege.
Rather they seem to be attempting to resurrect the same arguments which they have previously exhausted in this very proceeding and consequently they are barred from attempting to relitigate their general arguments in this forum by the doctrines of finality and res judicata.~
An implicit recognition of the jurisdictional problems seems to be contained in Intervenors'otion by the use of pleading in the alternative
/
Inter-Yenors suggest that this Board either stay further proceedings pending consideration of NRC'taff recommendations for interim modifications to the Commission's Class 9 policy which were called for in the Offshore Power
~S stems decision or in the alternative certify the question of the appli-cability of the Commission's Offshore Power S stems decision to the pending St. Lucie proceeding.
13/
Vir inia Electric Power Co. (North Anna Units 1 and 2), ALAB-551, 9NR,7 99 14/
Although not fully applicable in administrative proceedings the considera-tions of fairness and conservation of resources embodied in these doctrines are relevant.
See Public Service Com an of New Ham shire et al.
(Seabrook Units 1 and 2), CLI-78-.1, 7
NRC 1, 27 1978; Houston Li htin and Power Com n, et al.
(South Texas Units 1 and 2), CLI-77-13, 5
NRC 1303, 1321 1977 15/
Motion p. 4.
The suggestion that the proceedings be stayed can be readily dismissed.
lhe Commission's "Interim Statement of Policy and Procedure" published in October clearly contemplates that licensing decisions and appellate reviews should continue even in cases where complete decisions may not be possible.
16/
Certainly, there is nothing in the Offshore Power S stems decision relied on by Intervenors which prevents this Board from reaching a final decision on the discrete issues over which it has retained jurisdiction.
Consequently, there is no justification for not going forward on those issues.
2.
Other Avenues of Relief.
"The usual response to a party seeking to reopen a record in a docket where a
final decision has that the party has been rendered and appellate jurisdiction terminated is recourse to the provisions of 10 CFR 5 2.206.~
Those
~16 44 Fed.
Reg.
58559 (October 10, 1979).
17/
Intervenors suggest as an alternative that the Appeal Board may wish to certify to the Commission as "major or novel" the questions of Offshore Power S stems'pplicability to St. Lucie pursuant to 10 CFR 5 KT855d e
Suc a course is not'warranted here where the questions are not major or novel.
In Black Fox,
~su ra, slip op.
- p. 32, where the Appeal Board, stopping short of certification, directed the HRC Staff to inform the Commission whether it believed the consequences of Class 9 accidents should be considered in that ongoing proceeding, the Licensing Board is still in the process of conducting the safety hearings and unlike St. Lucia, no final decision has been rendered on the merits.
In Black
~Fox, t erefore, a substantive change in policy on Class gs might have a "major" impact on the ongoing proceeding.
Such considerations are inapplicable in St. Lucie where the record is closed, the decisions are final and unreviewable and the Appeal Board has only narrow and discrete issues before it.
The question is of course not "novel" since the Commission is well aware of its action in Offshore Power S stems and Intervenors have pointed to nothing making St. Lucie strikingly different from other land-based reactors.
IB/
See ~e...
I<arble H111,
~su ra,
- p. 262.
provisions p rmit a petition to be filed with tne Director of t<uclear Reactor Regulation who has discretionary authority to grant the relief sought subject to Commission review.
In this case, of course, Intervenors will also have the further opportunity to raise their concerns when the Applicant applies for its operating license.~
By that time the rulemaking noted in Inter-venors'otion probably will have specified what environmental considera-tions should be given to Class 9 accidents and the parties including Inter-venors will be in a better position to address such contentions in the St. Lucie proceeding.
Intervenors also have available to them an effective avenue of relief, viz, the opportunity to participate in the rulemaking which the Commission, in Offshore Power S stems, announced it would conduct.
In the rulemaking forum Intervenors will have'aA effect.'ive opportunity to argue their point of view on Class 9 accidents to the Commission.
3.
The tlerits of'ntervenors'r uments on Class 9s Intervenors'otion does not attempt to formulate a specific Class 9 conten-tion.
Assuming for argument that the Commission's Offshore Power S stems decision signals an intent to permit consideration of Class 9 accidents in individual licensing proceedings, it manifestly does not presently permit such consideration unless the requirements of existing regulations and case di d i llid1 d
d ~Eh 19/
- See, in this regard, the reminder in ALAB-537, ~sn ra, p.
411 where this Board noted the further opportunity presented by the filing of an OL application.
HRC Staff informs the Commission of a particular situation which the Commis-sion then deems sufficient to require consideration of Class 9s in a particu-lar case.
Consequently, Intervenors 'otion is defective on the merits since no attempt is made to address the applicable requirements.
The NRC Staff is mindful, however, of the Black Fox Appeal Board's direction to inform the Commission of the Staff's view as to whether Class 9 accidents ought to be considered in that proceeding.
It is the NRC Staff's position I'hat the Commission's Offshore Pov'er S stems decision does not require the Staff to inform the Commission of individual cases in which the Staff does not believe Class 9 accidents.
should be considered.
klhile the NRC Staff has not identified St. Lucie to the Commission as a case in which Class 9 acci-dents should be considered pending the adoption of an interim rule and subsequently the Commission's revised policy and rules, there are a number of ongoing matters which may ultimately bear on this issue.
Fir'st, the NRC Staff 'has 'not'considered St. Lucie as a case within the meaning of the Commission's direction in Offshore Power S stems because that decision was issued in October at a time when the construction permits for St. Lucie had already issued and the matters pending before the Appeal Board were limited in scope.
Intervenors'lass 9 contention had already been finally rejected by the Commission and the federal courts.
Second, following the Appeal Board's direction at the December hearings, the technical staff was asked whether there might be special circumstances at St. Lucie which would suggest consideration of Class 9 accidents different from that which would be accorded other land based reactors.
Based on a
preliminary assessment, no such circumstances can now be identified.
Conse-quently, current Comnission policy on Class 9 accidents embodied in the proposed "annex" to former Appendix D of 10 CFR Part 50 [36 Fed.
Reg.
22851 (1971)] is applicable.
However, the task action plans contained in Draft NUREG-0660 (THI Lessons Learned) proposed to the Commission identify Task Action III.E.1.4 as liquid pathway interdiction (an in-depth study of one of the special factors identified in Offshore Power S stems which might trigger further consideration of Class 9 events).
Assuming approval of this plan, St. Lucie would be analyzed as part of Task Action Plan III.E.1.4. If that should result in the liquid pathway -being identified as a unique consideration at St. Lucie and the Commission's interim policy on Class 9 accident considera-tion has not yet clarified the situation in this regard, the NRC Staff will
'promptly inform the Commission and'his Board pursuant to the Offshore Power I
~S stems direction.
CONCLUSION For the foregoing reasons, the NRC Staff believes the Appeal Board lacks jurisdiction to grant Intervenors motion.
Alternative forms of relief are available to Intervenors by petitioning pursuant to 10 CFR 5 2.206, by participating in the proposed Commission rulemaking when it is noticed, or
~
~ by parti'cipaiion in the operating license p~ oceeding
<;hen it is instituted
~
Finally, the merits of Class 9 accidents should not be addressed in this proceeding=-under existing Commissions rules and pol icy.
Respectful ly submitted, 1/il liam J.
mstead Counsel for NRC Staff William D. Paton Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of January, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO>>>iiSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of FLORIDA POWER 5 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 2)
Docket No. 50-389
- Dr.
W.
Reed Johnson Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO INTERVENORS'OTION TO CONSIDER CLASS 9 ACCIDENTS", dated January 18, 1980, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as, indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of January, 1980:
- Michael C. Farrar, Esq.,
Chairman Dr. David L. Hetrick Atomic Safety and Licensing Appeal Professor of Nuclear Engineering Board University of Arizona U.
S. Nuclear Regulatory Commission Tucson, Arizona 85721 Washington, D.
C.
20555 Dr. Frank Hooper Resource Ecology Program School of Natural Resources University of Michigan Ann Arbor, Michigan 48104
- Richard S. Salzman, Esq; Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 Martin Harold Hodder, Esq.
1131 N.E. 86th Street Miami, Florida 33138
'arold F. Reis, Esq.
Lowenstein, Newman, Reis 8 Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.
C.
20036 Norman A. Coll, Esq.
- Steel, Hector 5 Davis 1400 S.E. First National Bank Bldg.
Miami, Florida 33131
- Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.
C.
20555
- Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission l(ashington, D.
C.
20555
+'illiam D. Paton Counsel for HRC Staff