ML17207A842
| ML17207A842 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 02/07/1980 |
| From: | Anderson T, Hodder M HODDER, M.H., MIAMI, UNIV. OF, CORAL GABLES, FL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002220467 | |
| Download: ML17207A842 (19) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before 'the
'TOMIC SAFETY AND LICENSING BOARD In the matter'f
)
FLORIDA POWER 6 LIGHT COMPANY
)
(St. Lucie Nuclear Power Plant,)
Unit No.
2)
)
Docket No. 50-389 INTERVENOR'S REPLY to FPL's and the NRC Staff Response to Intervenors'otion with Res ect to Class 9 Accidents Black Fox seemingly resolves intervenors'otion.
The Appeal Board should direct the staff to promptly advise the Commission of the reasons why it believes the consequences of class 9 accidents should or should not be considered in these proceedings and should establish the time within which other parties may respond and make their views on the question known to the Commission.
The staff's explicit acknowledgment that the proximity between the proposed plant on Hutchinson Island and the Atlantic Gulfstream may require consideration of the 2
class 9 consequences to the liquid pathway makes such a
1.
Public Service Co. of Oklahoma (Black Fox Station, Units 1
and 2), ALAB-573, NRC, slip op. pp.
29-32 (1979).
2.
NRC Staff Response to Intervenors Motion to Consider Class 9 Accidents, pp.
9-10 [cited as "Staff Resp."]
8 008888
resolution more 'urgent her'e 'than in Black Fox.
In addition, intervenors sugges't
.the 'Board should grant the 'first alterna-tive 'relief reques'ted and should also certify the ques'tions posed in thei'r motion to the 'Commission in order that it may-have the opportunity to resolve the procedural and jurisdictional problems implicit in its order in Offshore Power ~sstems.
Jurisdiction At the December hearings, the Appeal Board asked all parties to address the question whether the Board had jurisdiction to decide the motion.
Under the construction of the Commission's order adopted in Black Fox, clearly the Board does not have jurisdiction to decide or grant relief on the merits.
By that decision the Board ruled that the Commission had reserved juris-diction to itself and that the Board's role was limited to assuring that the staff followed the mandate to advise the Com-mission in a timely fashion.
By their jurisdictional arguments,
- however, the applicant and the staff ask this Board to,arrogate this jurisdiction unto itself and to enter an order which would in effect relieve the staff of its duty to advise the Commission of its views prior to completion of these construction permit 3.
Offshore Power ~Sstems (Floating Nuclear Power Plants).
Docket No.
STN 50-4 37, NRC (19 79 )
(reproduced as an Addendum to intervenors'otion).
proceedings...Intervenors submit that the jurisdictional argu-ments not only fail to heed the teaching in Bl'ack-Fox; hut also do not accuratel'y reflect the 'jurisdictional principles estab-lished by this Board's prior decisions.
A.
Black Fox:
The Appeal Board concluded that the Commission's order in Offshore did not expand the right or duty of the Licensing or the Appeal Boards with respect to environmental consideration of class 9 accidents.
The Board also 'concluded, however, that the 'Commission's order did mean that the Commission had opened the door to such consideration and had reserved to itself the right to decide which individual land base reactor cases re-quired such consideration (pending adoption of a new general policy).
Although the Commission's order did not specify the time, the Appeal Board recognized that the Commission s de-cision should be made at the earliest possible moment in pending proceedings in order that due consideration could be given in those
"'cases where the Commission determined considera-tion was required.
Accordingly, the Appeal Board ruled that 4.
Again intervenors find the staff's arguments anamolous in view of their recognition that the St. Lucie plant is one of those plants whose similarity to a floating plant is so striking that consideration may well be required.
(Staff Resp.,
pp. 9-lo).
its. role 'was limited to assuring that the staff's advice was promptly submitted to'he'Commission for its decision.
The application of that decision to the 'case 'at hand seems clear.
Were 'the Appeal Board to deny the motion in its entirety, it would be exercising jurisdiction to deprive the Commission of an opportunity to decide whether class 9 accidents should be considered during these construction permit.proceedings.
No one challenges the jurisdiction of the Commission to interject an issue into pending proceedings and to direct the Licensing and Appeal Boards to reopen pending proceedings to receive 5
evidence and resolve this issue.
In the radon emission pro-
- ceedings, the Commission withdrew a part of a generic rule which had been applied in pending cases and directed both, the"Appeal Board and the Licensing Board to reopen the record and consider the ques'tion in all cases pending before them, irrespective of whether the issue had been previously raised by the parties, (Id; see also, Peach Bottom.
)
~ 6 By its order in Offshore the Commission acknowledged that its generic prohibition might be outdated and opened the door 5.
"Uranium Fuel Cycle Impacts From Spent -Fuel Reprocessing and Radioactive Waste Management,".
43 Fed.
Reg.
15613 (1978).
Station, Units 2 and 3), ALAB-480, 7
NRC 796 (1978).
to class 9 accident consideration in individual cases.
This Board decided in Black Fox that the'Commission had res'erved to itsel'f the right to decide 'whether'uch consider'ation should be given in any individual pending case."'n rea'ching this decision in pending cases',
the 'Commission may well wish to consider whethex'he doctrine of finality or the stage which a proceed-ing has reached constitute appropriate bases for its declining to order consider'ation in an otherwise proper pending case.
But the Appeal Board must recognize that a decision to deny consideration based on finality grounds is an exercise of dis-cretion.
By its Black Fox decision the Board has recognized that. that discretion has bee'n reserved to the Commission.
Inter-venors submit that under that decision the Appeal Board may not itself apply the discretionary doctrine of finality to deny the motion because by so doing it would be exercising discretion
, to deprive the 'Commission of an o'pportunity to decide an issue the Commission has reserved to itself.
B. 'f Mandato and Discretionar Jurisdi'ctional Princi les.
The analyses set out in the applicant's and the staff's responses to the motion share two fallacies.
Each treats Black Fox only to the 'extent it precludes the Appeal Board's deciding the 'class 9 issue
'on the merits and each fails to recognize that
the Board's. prior jurisdictional decisions have 'distinguished between two kinds of jurisdictional principles',,tho'se which are mandatory and those which involve 'the "exercise 'of discretion.
ceedings are over, the 'proceedings are over.
After the Li-censing Board has made its decision on an application for a license or permit, after the Appeal Board has affirmed, and
't after the Commission has affirmed or the time for Commission re-view has expired,.the proceedings are over; neither the Licen-sing Board nor the Appeal Board has any "proceeding" before P
it in which new or old issues can be raised.
Both boards have lost subject, matter jurisdiction because there is no basis either in the statute or in the regulations for a further exer-cise of jurisdiction.
a The Board has had occasion to illustrate the application of these mandatory principles in recent decisions.
Thus, in South 7
- Texas, a co-applicant asked the Licensing Board to order an antitrust hearing on an application six months after the Appeal Board had affirmed the Licensing Board's decision authorizing the issuance of a construction permit.
No appeal had been taken 7.
Houston LicChhtin s Power Co.
(South Texas, Units 1 and 2),
ALAB-381, 5
NRC 582 (1977).
from the original decision and no issues remained outstanding in the 'construction per'mit proceedings.
The 'Appeal Board ruled that the procee'dings were 'over and that there had beeri no basis for the Licensing Board to exercise jurisdiction over the issues raised by the motion.
(See'lso WPPSS.
)
8 Clearly, neither the decisions nor the rule is applicable here.
The Appeal Board still has before it two issues the adequacy of the offsite/onsite emergency power systems and the radon emission issue.
The construction permit proceedings are not complete. 9 the duty to decide applications properly before them and the
%PM E and 5), ALAB-501, 8
NRC 381 (1978) (denying as untimely a motion posing questions for review filed in Appeal Board after time for Commission review of decision had expired).
- 9. It bears repeating that there is a second rule of juris-diction which is mandatory, not discretionary.
The Commission itself has the right to order consideration of an issue in any uncompleted proceeding.
It matters not the stage of the proceedings, that the issue may have already been litigated, or that the issue may never have been placed in controversy at all; it becomes the duty of the Licensing and Appeal Boards to comply with this mandate.
The Commission's directive on the radon emission issue
(~su ra, n.
5) and this Board's response in the Peach Bottom decision
(~su ra n.
6,) illustrate this principle.
Intervenors submit it is applicable here.
duty. to refrain. from deciding questions when no part. of the pro-cee'dings remain before 'it, the 'Appeal Board has recently been confronted wi'th a number'f cases'hich posed ser'ious ques'tions with res'pect to the 'circumstances'n which the Licensing or the 'Appeal Boards should decline 'to exercise jurisdiction over issues which arise late in the proceedings.
Although their parameters are unclea'r, the basic principles have emerged.
- First, as this case illustrates and as the Board has I
recently affirmed,,the Appeal Board is free to raise sua ~sonte at any time before the close of the proceedings serious issues which were neither considered by nor presented to the Licensing Board.
Apart from inter'venors'otion here and the motion in 10 Black Fox, intervenors suggest the Commission's directiVe in Offshore Power ~Sstems presents an issue the Appeal Board should properly raise sua
~s ante in all pending proceedings to assure that the Commission is promptly advised in each case.
At the other end of the spectrum, borrowing from judicial experience, the Board has recognized that some limitations must be placed upon. the parties'ights to raise or reraise, 10.
Vircrinia Electric Power Co.
(North Anna Units 1 and 2),
ALAB-551, 9
- NRC, 704, 707 (1979) (citing Florida Power a Liciht Co.
(St. Lucie Nuclear Power Plant, Unit No. 2),
ALAB 435 f 6
NRC 541 f 544 46 '1977)
~
to litigate or relitigate issues endlessly, in the interest of establishing an order'ly proces's for res'olving licensing pro-ceedings.
Thus, the mere 'fact that discrete 'issues remain to be resolved in a proceeding does not warrant the Licensing or Appeal Boards reopening factual questions based upon an alleged change in the factual circumstances where the questions k
have been or clearly should have been resolved earlier in the 11 proceedings.
For example, in Seabrook the Appeal Board ruled it would not permit the question of the applicant's financial qualifications to be reopened years after the issue had been fully litigated, decided, and affirmed, based upon an intervenor's motion alleging the applicant's financial circumstances had changed materi'ally,, even though the pro-ceedings were still incomplete because the Appeal Board still had two unrelated and discrete issues before it
- an alter-native site issue and the radon'mission issue.
Similarly, in Marble Hill, the Appeal Board refused to consider an inter-venor's motion to reopen the safety hearings made six months after the time for review of the construction permit had expired even though the Appeal Board still had the radon and 2), ALAB-513, 8
NRC 694 (1978).
12 emission issue before it.
Both those decisions, of couxse, involved an attempt 'to, reopen a fully litigated factual question based upon an alleged change in the factual circumstances.
- Here, the Appeal Board has before it a motion asking to address a
legal question which arose solely as a result of a recent Com-mission decision.
The doctrine of finality can not be applied here.
The only issue that has been litigated in these proceedings is legal-as a matter of law, did the Licensing Board correctly apply the Commission's 1971 interim guidelines to preclude consideration of the consequences of class 9 accidents in licensing pro-
- ceedings, absent an affirmative"showing of probability by intervenors?
That issue has been fully litigated and decided against intexvenors.
Intervenors concede that they may not, now seek to reopen that question in these proceedings before the Board.
But no facts were litigated and a new question of law has arisen as a result of the Commission's order in its 1979 decision in Offshore Power ~8stems.
12.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530,,9 NRC 261 (1979); but see and compare, earlier decision in Marble Hill, ALAB-493, 8
NRC 253, 260 (1978)
(concluding "the power to reconsider is inherent in the power to decide" and deciding to consider legal questions not raised on prior appeal of same issue.)
10
The question posed hy the motion here (and in Black Fox) raises'iffer'ent issues whether the'ommission's 1979 directive 'applies'o these 'proceedings and, if so, how it should be implemented.
With respect to these issues, the teaching of Black Fox is clear.
The Commission has reserved jurisdiction over the question unto itself and the Board's function is simply to assure that the staff promptly advises the Commission of its 13 views so the Commission can exercise that jurisdiction.
C.
Alternative Remedies.
Both the applicant and the staff suggest the 'intervenors'emedy is to petition the Director of Nuclear Reactor Regulation to institute a show 13.
The staff has made it clear that, it disagrees with the Black. Fox decision.
"It is the NRC Staff's position the Commission's Offshore Power
~S stem 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."
(Staff Resp.,
p 9; emphasis added.)
Thus, according to the staff, /he Commission's directive in Offshore is meaningless and the staff can continue, as it, did before Offshore, to consider Class 9 accidents infor-mally.
(See NRC Staff's Brief in support of Affirmative Funding on Certified Question; pp. 44-45, Offshore Power
~Sstems, Docket No.
STN 50-437). If it cannot reach a
private agreement on the question with the applicant, then and only then need it seek permission for formal considera-tion on the record from the Commission.
On this basis, the public and intervenors may continue to be deprived of. any right to participate or know the basis upon which these decisions are made.
Such are the "lessons learned" from the experience at Three Mile Island.
Inter'venors find this construction of Offshore and Black Fox difficult to accept.
11
cause proceeding under 10 CFR g 2.206.
Neither the applicant nor the staff discuss the source of the Director's authority to exercise jurisdiction over a matter with respect to which the Commission has reserved jurisdiction to itself.
(Black Fox, Slip.
Op. at p.31.) 14 Beyond this, the applicant's and staff's suggestions are both disingenuous.
Both suggest that intervenors peti-tion the Director for an order to show cause.
And yet neither finds it necessary to discuss
- whether, apart. from Black Fox, the Director would find himself constrained by the "doc-trine of finality" to deny relief under the Commission's decision in'or'them Indi'ana'ubl'ic Service Co.
(Bailly Generating Station, Nuclear 1), Dkt. No. 50-367, NRC (1978). 14a Although the case could be distinguished, it is clear that the same arguments the applicant and staff urge here to induce the Appeal Board dec'line to address the merits and defer to the Director could -be urged to persuade the Director that, to con-sider the merits of such a petition would constitute an 14.
- Indeed, absent intervenors being able to carry the burden of showing probability, the only relief the Director could grant, consistent with the 1971 interim guidelines, would be to require-a showing with respect to the specific Three Power a'nd L'i'tCo.
(Susquehenna Steam Electric Station, Units 1 and 2), LPB-79-29, 10 NRC (1979).
14a.
CCH Nuclear Reg. Reptr.
)I 30,287-12
unwaxranted interfer'ence with the 'adjudicative '.functions of 15 the Licensing and Appeal Boards.
Thus, the 'mer'its need never be addressed.
The staff suggests two additional procee'dings in which intervenors might properly raise this issue in the pro-ceedings that will take place when FPL applies for an operating license and in the rulemaking proceedings the Commission sug-gested would>>be reinstituted as a result of Offshore.
(Staff Resp.
- p. 8.)
Neither alternative permits intervenors to pose the question in proceedings to determine whether and under W
what conditions a second nuclear power plant should be con-structed on Hutchinson Island.
Both suggestions would defer the issue until the applicant had made further investments in the project.
In either proceedings the environmental issues will be wholly different from those posed here.
The Merits Although the Appeal Board haa deeerained in Black Fox that it will not itself consider the merits, the substantiality 15.
The staff does acknowledge that this procedure is generally invoked only when "appellate jurisdiction [has] terminated" (Staff Resp., p.7). It is, of course,,well established that "It has never'een necessary to invoke'his pro-cedure in a pending case Union Electric Co.
(Calloway Plant, Units 1 and
- 2) ALAB-348, 4
NRC 225, 232 (1976).
of the question posed may be a factor in deciding whether the staff should be 'directed to submit its, views to the 'Commission before ',these proceedings are completed.
The 'nature of the application here and the staff's own admissions clearly show the question here is critical.
Liquid pathway interdiction was one of the factors 'that led the staff to seek 'class 9 accident consideration in the proceedings on the application for a manufacturing license in Offshore.
As the staff admits in its reponse (Staff Resp.
- p. 10), it is one of the factors that might demonstrate the need for class 9 consideration here.
But under the staff's conception of its role, there is no real urgency for a de-cision here; indeed,. the staff suggests that these construction permit proceedings be permitted to close, that the applicant 16 be permitted to continue construction on the existing design, 16.
Although intervenors believe class 9 mnsideration might angel re-consideration of the decision to permit construction of a plant on a nanna'arrier island adjacent to a major international liquid pathway, they also re~ze such consideration might only result in a conclusion that design changes were needed to strengthen the barriers between the "core" of the plant and the 1iquid pathway.
(For a literate description of the preliminary planning and design process undertaken when floating power plants were first conceived, Mcphee, Gi~ci Good W~wi he, pp.76-118 (New York: 1979).)
For eh1e reason alone, intervenors submit the question should be reviewed and decided before further construction is completed, which can only make subsequent modifications more costly.
14
and that inteivenors, the 'applicant, and the Commission should simply wait until such time 'as. the 'staff turns its attention to this problem in,connecti'on with the St. Lucie site.
Such a proposal ser'ves'o one's inter'est and hardly reflects an orderly administrative process for resolving a critical and disputed issue (nor does't evidence particular zeal on the part of the staff).
The two questions posed by this motion can perhaps be graphically assessed on three axes a procedural axis and two substantive axes.,
On the procedural axis, FPL correctly describes the proceedings that have taken place since it first applied for a construction permit in 1973 and since intervenors first sought class 9 consideration in 1974.
The proceedings are indeed well advanced on the procedural axis and one may empathize with the applicant's concern that 17 additional litigation ensue at this date.
But there is a second axis a substantive axis.
The Commission has now found that the consequences of class 9
accidents should be consi'der'ed in connection with floating power plants and has indicated it intends to reconsider its 17.
Intervenors hope all might also recognize that the lateness with which the 'opportunity to consider'his issue comes is not attributable 'to want of effort on their part.
(See discussion, FPL Resp.
pp. 7-8.)
policy with res'pect to land based plants.
- Thus, a sec'ond axis might be 'constructed with 'floating power'lants..at one 'end and land based plants proposed to'e located away from major watez-18 ways and on seismically and meteorologically stable locations.
Clearly the plant being constructed on Hutchinson Island is as close to the floating power plant end of the axis as a land based plant could be.
- Finally, a second substantive axis can be constructed-an axis defined by the potential environmental consequences of nuclear accidents.
At one end are the consequences of those accidents in what the 'Commission calls class 1; at the other, are the consequences of coze melt,accidents in class 9.
How-ever one perceives the probability of an occurrence, there has been little doubt that the consequences would be severe.
The Appeal Board has befoxe it a motion which asks the-staff to advise the Commission, inter alia, whether the potential con-sequences to Atlantic Gulfstream and site environs resulting from a core melt accident at plant located on narrow barrier island are such that environmental consequences of class 9
accidents should be consideied in determining whether and how 18.
The Black Fox plant would appear to be near the secure end of the spectrum.
E.g.,
Black Fox, Slip Op. pp.
33 et sece.
16
such a plant should be 'constructed at that location.
Surely the experience 'at Three Mi'le Island and the decision on Offshore suffice "to makethis a ques'tion of sufficient impor-tance to compel the staff to submit its views to the Commission before the construction permit proceedings are 'completed.
CONCLUSION Since 1974'etitioners here have sought to compel consi-deration of the environmental consequences that might result if a class 9 accident occurred on Hutchinson Island.
In the record there is no explanation to show why the staff con-r eluded consideration of class 9 accidents was appropriate in 19 1973 in connection with a land based site (Newbold Island) and was appropriate in 1978 for floating site (Offshore Power Systems) but was not appropriate for a site located on a narrow barrier island in the Atlantic Ocean adjacent to the Gulfstream.
It may be that the nation's energy needs substantially outweigh any risk to the human environment from a core melt accident.
It may be they do not.
Or the best judgment may fall somewhere between:
cost-benefit analysis may dictate 19.
- See, NRC Staff's Brief in Support of Affirmative Finding on Certified Question, Offshore Power
~S stenis, Docket No.
STN 50-437). at pp.
44-45.
17
additional precautions and diffeient 'siting criteria.
But whatev'ei the conclusion, ther'e 'can be no justification for the Commission's not bei'ng presented with the ques'tion here.
Before the population on and and surrounding Hutchinson Xsland is compelled to spend 40 years in the shadow of a second nuclear
- reactor, they are entitled to have the Commission consider the environmental consequence of a class 9 accident or, at a minimum, to an explanation why such consideration is not appropriate in this case.
Accordingly, intervenors submit that the Appeal Board should enter an order:
l.
staying completion of these proceedings until the Com-mission has received and acted upon the staff's recommendations with respect to class 9 accident consideration at the St. Lucie site or has adopted a new general policy; 2.
directing the staff to advise the Commission within 30 days of the reasons why it believes the consequences of class 9 accidents should or should not be considered in this case and granting the other parties 30 days after that advice is given to submit their views on the question to the Commission; and 3.
certifying to the Commission as major and novel the 18
ques'tions of the 'standards to. be applied by the staff in determining in whi;ch '"individual cases'
. the 'en'vironmental consequences'f Class
- 9. accidents should be 'considered,".
the procedures by which such sta'ff determinations are,to be re-
- viewed, and how the 'Commission's order'n Offshore is to be implemented.
Respectfully submitted,
,/
Pp 4i.M~v+,./+~~<.-;~~">9 Terence J
Anderson University of Miami School
/
of Law Coral Gables, Florida 33134 (305) 284-2253 or 2971 Martin H. Hodder 1131 N.E. 86th Street Miami, Florida 33138 (305) 751-8706 19