ML17208A463
| ML17208A463 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/16/1980 |
| From: | Reis H FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8004220141 | |
| Download: ML17208A463 (32) | |
Text
i~ià pp'r me ~ eg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY
& LICENSING APPEAL BOARD J
In the Matter of:
FLORIDA POWER
& LIGHT COMPANY (St. Lucie Nuclear Power Plant,,
Unit No.
2)
)
)
)
Docket N
5'0-389)
)
)
)
FPL'S
RESPONSE
TO MOTION CONCERNING CLASS 9 ACCIDENTS On December 12, 1979, Intervenors filed a motion relating to the further consideration of "Class 9" accidents in this proceeding.
Florida Power
& Light Company (FPL) hereby files 1/
its response in opposition to the motion.
The motion appears to be based upon the Intervenor's view of the obligations which the Nuclear Regulatory Commission imposed upon itself as a necessary consequence of the measures i<"directed to be taken in its memorandum.and order of last 2/
September relating to floating nuclear plants (FNPs).
There, in response to certification of the question by the Appeal Board, the Commission held that "the Licensing Board should be allowed'to consider the environmental consequences 1/
This response is filed in accordance with the schedule established by the Appeal Board during the course'f a hearing it was then conducting.
Tr. 877-878, December 14, 1979.
2/
Offshore Power S stems (Floating Nuclear Power Plants);
Docket No.
STN 50-437, NRC
, September 14, 1979.
The memorandum and order is attached as an "Addendum" to the motion and we cite it here as a."
0
'4
+
t'
of Class 9 accidents at the FNPs which Offshore proposes to manufacture."
(6a)
The Commission went on to state that:
Our grant of review in this proceeding was limited to the narrow question certified to -us by the Appeal Board and it is neither necessary nor appropriate for us to employ this particulax adjudicatory proceeding to resolve the generic issue of.,considera-tion of Class 9 accidents at land-based reactors.
Such a generic action is more
~
properly and effectively done through rule-making proceedings in which all interested persons may participate.
I I
Therefore, we are not today expressing any views on the question of environmental
'onsideration of Class 9 accidents at land-based reactors
- which, as the Board noted, present risks different in kind and perhaps in magnitude from those risks presented by FNP.
See 8
NRC at 218-19.
- However, we are concerned about this question and intend to complete the rulemaking begun by the Annex and to re-examine Commission poli.cy in this area.
To aid in that re-
. examination we ask our staff to:
--l.
Provide us with its recommendations on how the interim guidance of the Annex might be modified, on an interim basis and until the rulemaking on this subject is completed, to reflect developments since 1971 and to accord more fully with current staff policy in this area; and 2.
Zn the interim, pending completion of the rulemaking on this subject, bring to our attention, any individual cases in which it believes the environmental consequences of Class 9 accidents should be considered.
(8a; footnote omitted)
The instant motion is based upon the following theory:
r
~ )P 2.
Since the Commission has now abandoned any generic prohibition against. consideration of class 9 accidents,'it'ust now either give, or provide a reasoned explanation for its refusal to give, such-.consideration in each individual case.
It cannot delegate unreviewable discretion to the staff.
(Motion, p. 3; emphasis supplied) lt Proceeding from this interpretation, the motion asks that this. Board direct the NRC Staff to file a proposed supple-ment to the St. Lucie 2 Final Environmental Statement:
which either (a) gives consideration to the environ-mental consequences of possible class 9
accidents at the proposed St. Lucie Unit No.
2 and recommends the weight to be assigned the resulting risk to the human environment in the Commission's determination of the environmental impact of a decision to license construction of the proposed plant at St. Lucie on Hutchinson Island; or (b) fully justifies why such considera-tion should not be given in this particular case,.
(Motion, pp. 1-2)
The motion also requests that the Appeal Board dir'ect that a hearing be held, preceded by prehearing procedures, "for a determination of the adequacy of the FES as supplemented."
Consequently the request apparently is that such a hearing be conducted even if the FES Supplement merely justifies why consideration should not be given to Class 9 accidents.
Two possible alternatives to the relief described
'bove are suggested in the motion.
One would be to stay
"completion of these proceedings until the Commission has received and acted upon" the'interim modifications referred to in the FNP Memorandum and Order (Motion, pp. 2, 4).
The second would be for this Board to certify to the Commission questions relating to the standards to be applied by the Staff in determining the individual cases in which Class 9
accidents should be considered as well as the procedures for the review of such Staff determinations and how the FNP direction. relating to specific proceedings "is to be imple-mented with respect to pending proceedings."
(Motion, p. 2; see also p.,4)
FPL submits that the motion should be denied in its entirety.
Ne demonstrate in greater detail below that the relief primarily requested, as well as the alternatives, are neither legally necessary consequences nor appropriate extensions of the action taken by the Commission in the FNP proceeding.
In addition, the Class 9 issue has been finally disposed of in this construction permit proceeding and should not again be addressed in this proceeding.
If the Intervenors believe the issue should be considered again with respect to St. Lucie Unit No. 2, they may invoke a different procederal'emedy.
1.
The histor and status of this roceedin The I
construction permit for St. Lucie Unit No.
2 was issued on May 2, 1977, in consequence of two decisions of the Commis-sion.
One was a partial initial decision of the Licensing Board on environmental and site suitability matters which authorized the issuance of a limited work authorization to FPL.
1 NRC 101 (February 28, 1975),
as supplemented 1 NRC 463 (April 25, 1975).
This was affirmed in part and reversed (with respect to the consideration of alternative sites) in
'art by the Appeal Board in ALAB-335, 3 NRC 830 (June 29, 1976);
and the lntervenors appealed the decision to the United States Court of Appeals for the District of Columbia 3/
Circuit (No. 76-1709)
On April 19, 1977, the Licensing Board, after having heard the remanded alternative sites issue and the remaining undecided construction permit issues, released. its initial decision authorizing the issuance of the permit.
5 NRC 4/
1038.
. That decision was affirmed by the Appeal Board on October 7, 1977.
ALAB-435, 6
Intervenors sought.
discretionary review by the Commission under 10 CFR 5 2.786(b),
3/
-Because of the outstanding alternative sites issue, the limited construction activities authorized by the partial initial decision were stayed by order of the Court of Appeals on October 21, 1976.
In the same order the Court directed that the appeal in No. 76-1709 be held in abeyance.
4/
Thereafter, on Hay 12, 1977, the Court of Appeals dis-solved the stay of construction it had issued on October 21,
- 1976, and directed that the-'appeal in No. 76-1709 no longer be held in abeyance.
but their petition was denied when the time for review by the Commission expired on December 25, 1977."
I The Intervenors then filed a second appeal in the Court of Appeals (No. 78-1149) which consolidated both appeals and affirmed them in one decision on December 26, 1978.
589 F.2d 1115.
The Court of Appeals denied a petition for rehearing 5/
on January 15,. 1979.
On October 1, 1979, Intervenors'etition for a writ of certiorari was denied by the United States Supieme Court, 100 S.Ct.
55, and a petition for rehearing was denied on November 26, 1979.
48 U.S.L.W. 3357 (Novem-r ber 27, 1979).
The "Class 9" issue was fully litigated and finally decided in the course of. the proceedings described above.
On June 5, 1974, while prehearing procedures were being conducted by the Licensing Board, the Intervenors filed a r
"proposed refined statement of matters in controversy,"
contending, among other things, that FPL had failed "to consider Class 9 accidents as part of their design basis."
In its comments on the refined statement, FPL objected to the contention on the ground, among others, that the Com-mission's regulations did not require plants to be designed to withstand the consequences of a Class 9 accident, and 5/
The judgment and accompanying memorandum of the Court of Appeals are reproduced in the Appendix hereto, together with the order denying rehearing.
Pursuant to Local Rule 13(c), the memorandum was not included in the reported opinions of the Court and is not to be cited as a precedent under Rule 8(b).
"However, counsel may refer to such orders, and memoranda, for such purposes as application of doctrines oi res judicata, collateral estoppel, and law of the case, which turn on the binding effect of the judgment, and not on its quality as precedent."
Local'Rule 8(f).
that no attempt had been made to meet the "Shoreham test" of "a reasonable possibility of the occurrence.of a parti-cular type of accident generically regarded as being in 6/
Class 9
Thereafter, on June 25, 1974, the Commission Staff and the Intervenors filed a "Stipulation and Joint Motion" con-taining a'oint statement of the issues those parties thought to be appropriate contentions in the proceeding.
The docu-ment also described issues the Intervenors wished considered, but which the Staff thought should not be litigated in the proceeding.
Therefore it included (p.
12) an expression of the Staff's view that the Class 9 issue should not be litigated because there had been "no showing of reasonable possibility" of a Class 9 accident at St. Lucie 2, as required by the 7/
Shoreham decision.
ZPL concurred in that view, but Inter-r venors replied that:
6/
"Applicant' Comments on Intervenors'roposed Refined Statement of Matters in Controversy,"
June 18, 1974,, p. 2.
The Shoreham test referred to was that set forth in L~on Island Li htin Co.
(Shoreham Nuclear Power Station),
ALAB-156; 6 AEC 831, 833-36 (1973), affirmed by unpublished order sub nom.
Llo d Harbor Stud Group v. Atomic Ene v, Commission (D. C. Cir., No. 73-2266, November 11, 1976),
vacated on other
/
7/
"Response of Applicant to Stipulation and Joint Motion,"
June 28,
- 1974, p.
15.
having read the Shoreham decision
[they] respectfully take exception to that holding in that the argument supporting the decision does not logically uphold the result.8/
Nevertheless, in its "Prehearing Conference Order ~3," dated July 12,
- 1974, the Licensing Board ruled as follows:
As to statement on Contention 1.7 (page 12, Joint Motion) Board agrees that there has been no showing of a reasonable pos-sibility of class 9 accident at St. Lucie and therefore an issue relating to a
class 9 accident is denied.
8 AEC 117, 124-125.
The Intervenors excepted to this ruling 9/
and briefed the exception, but this Board affirmed.
ALAB-335' NRC 830 841 (1976)
The Class 9 issue was central to Intervenors'ase 10/
when they sought judicial review.
The issue was also fully 8/
"Intervenors
Response
to Applicants Response to Stipula-gio'n and Joint Motion," dated July 5,
- 1974, p.
7.
9/
"Intervenors Exceptions to the ASLB Partial Initial Deci-sion (Dated February 28, 1975) as Supplemented,"..May 2, 1975, p.
1; "Intervenors Briefs on Exceptions 2-45 and Motion for Additional Time to Brief Exceptions," July 3, 1975, pp. 1-2.
10/
See "Petitioners Brief on Partial Initial Decision" filed in D.C. Cir: No. 76-1709, February 15,
$ 978, pp.
3, 14-19; "Petitioners Reply Brief to Respondents, U. S.
Nuclear Regulatory Commission and United States of America,"
July 24,
- 1978, pp. 2-5.
11/
addressed in the Government's Brief.
Pursuant to Rule 28(i) of the Federal Rules of'Civil Procedure, FPL's Brief (p.
18) adopted those portions of the Government's Brief.
Each of the briefs specified that the Class 9 issue was a
"question presented" or one of the "issues presented for 12/
review."
The memorandum of the Court of Appeals affirm-ing the decision expressly deals with and disposes of the issue in the first and third paragraphs.
See Appendix hereto.
The petition for rehearing filed in the Court of Appeals and the petition for' writ of certiorari were devoted solely to the Class 9 issue, as was the petition for rehearing 13/
filed in the Supreme Court.
When it issued ALAB-435, affirming the initial decision, the Appeal Board sua
~s onte asserted and retained jurisdiction over one issue, steam generator tube integrity.
6 NRC at 544-546.
It later amended ALAB-435 to cover matters relating 14/
to 'grid stability, and on April ll, 1978, the Commission 11/
See Brief for "Respondents United States Nuclear Regula-tory Commission and the United States of America" in Nos.
76-1709 and 78-1149, pp.
1, 3-4, 7-9.
12/
See Intervenors "Brief on Partial Initial Decision,"
p.
2; Government Brief, p. 1; and FPL's Brief, p. 1.
13/
See Petition for Rehearing and Suggestion for Rehearing En Banc filed in D.C. Cir. Nos.
76-1709 and 78-1149 on Janu-ary 10, 1979; Petition for Writ of Certiorari and Petition for Rehearing filed in Hodder et al. v. United States Nuclear
- States, October Term,
- 1978, No. 78-1652.
14/
See Appeal "Board order issued in this proceeding on October 28, 1977.
.10
'tself directed that the records be reopened to consider issues relating to radon releases in all "cases pending before Appeals Boards,....'!
Philadel hia Electric Com an et al.,
ALAB-480, 7
- 799, 802 n.
4 (1978).
However in ALAB-537, 9
NRC 407, 417 (1979), the Appeal Board expressly terminated its jurisdiction over the steam generator tube issue, leaving open to the exercise of Appeal Board jurisdiction only the grid stability and radon issues.
2.
Final dis osition of the Class 9 issue.
From the foregoing, it is clear that the Class 9 issue 'in this pro-ceeding has,been fully litigated and finally decided -- both within the Commission and in the courts.
Once a decision has become final because the time for Commission review has
- expired, both the licensing boards and the Appeal Board lose jurisdiction over the proceeding.
10 CFR 5 2.717(a);
Houston Li htin and Power Corn an et al.
(South Texas Project, Unit Nos.
1 and 2), ALAB-381, 5
NRC 582, 590-591 (1977);
Nashin ton Public Power Su 1
S stem (NPPSS Nuclear Project Nos.
3 and 5), ALAS-501, 8
NRC 381 (1978); Public Service Com an of Indiana, Inc.
(hlarble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530, 9
NRC 261 (1979).
As the Appeal Board stated in the South Texas proceeding, "the total regulatory scheme does not contemplate the resurrec-tion of a terminated construction permit proceeding
[even] in the event of a later material change in circumstances."
5 NRC at 591. It went on to state:
To the contrary, even assuming there to have been supervening developments bring-ing into legitimate question either the warrant for the construction permit,,or the need for its modification, this path would appear to be totally foreclosed.
Under our regulatory scheme, if the person were not prepared to abide the arrival of the operating license stage, his remedy would lie in seeking the issuance of an order -- not by a licensing board but by the appropriate official on the NRC Staff which would trigger a show cause pr'oceeding (i.e.,
one of the types of pro-ceedings expressly provided for in the Rules of Practice).
5 NRC at 593; footnote omitted.
Here the Class 9 issue was decided by the Licensing and Appeal Boards; the Commission permitted the time for review to pass; and judicial review of the Class 9 issue was conducted pursuant to 28 U.S.C.
g 23'42, which applies only to "final orders."
The South Texas, WPPSS and Marble Hill decisions demonstrate tnat if jurisdiction over the grid stability and radon issues'ad not been retained, the Appeal Board would have had no authority whatsoever to reopen the issue.
Other precedent makes it clear that the retention of authority over those issues does not change the result.
Directly in point is public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8
NRC 694 (1978).
There a party sought to reopen the record of a construction permit proceeding on the issue of financial qualifications after
12 "finality [had] attached to the resolution of the question in lt this proceeding
.." by virtue of affirmance by the Com-mission and by the Court of Appeals for the First Circuit.
The Appeal Board still had before it the "entirely discrete issue" of alternative sites pursuant to an earlier Commission directive.
The Board held that the pendency of the latter issue did not "preserve our jurisdiction over other, unrelated questions
..," including the issue earlier resolved.
Shortly thereafter, in Vir inia Electric and Power
~Con an (North Anna Nuclear Power Station, Units l and 2),
ALAB-551, 9
NRC 704 (1979),
a similar issue was raised in the context of an operating license proceeding in which all but three discrete issues had been finally decided.
Xn that, proceeding, the Staff had informed the Appeal Board of the existence of a "significant new development,"
as it was required to do in all pending cases, concerning the "current practice of relying on non-safety grade equipment to mitigate the severity of anticipated operational occurrences."
9 NRC at 706.
With respect to the question whether it had juris-diction to consider the'ssue, the Appeal Board held that the authority vested in adjudicatory boards to raise new issues must be limited by the principle of finality which governs NRC proceedings to the same extent as any other proceedings, and once review of an issue has been terminated, the Appeal Board loses all jurisdiction over it.
13 The Board also held that its authority to consider the new non-safety grade equipment issue turned upon "the exis-tence of a 'reasonable nexus'etween that issue and one of the issues
.over which we have retained jurisdiction."
9 NRC at 709.
However, the issue involving Class 9 accidents is not a new issue in the proceeding.
- Rather, review of that issue, has been completed.
.This Board has, therefore, lost jurisdiction over it.
The fact that the Board has retained 1
authority over the grid stability and radon issues does not modify this result.
The motion totally ignores the line of authority just discussed.
It argues that the Appeal Board should exercise jurisdiction over the Class 9 issue simply "[b]ecause the order was entered prior to completion of these proceedings citing Philadel hia Electric Comoan et al.
(Peach Bottom p~
Atomic Power Station, Units 2 and 3), ALAB-480, 7
NRC 796 (1978) as authority.
(Motion, pp.
2-3)
There the Appeal Board held that the Comission "wishes the radon question to be reexamined in every pending proceeding 7
NRC at 802, n.
4.
However, this is but an example of the 'exercise by the Commission of authority similar to that of the Appeal Board, "to raise sua
~s once issues which ware neither pre-sented to nor considered by the licensing board."
ALAB-551
~su ra 9
NBC,at 707.
We are not presented here with such an issue, but rather with one which has been finally decided.
14 3.
The FNP decision.
Xt is clear that the Commission's FNP decision does not "order" or even authorize.'the Appeal Board to reopen the Class 9 issue in this proceeding.
, Prior to the issuance of the FNP decision, the Commission's policy, 15/
as established in the proposed "Annex" to its environmental regulations, was that Class 9 accidents need not be considered in individual licensing proceedings.
The policy has been repeatedly upheld both by the 'Appeal Board and the courts..
See Offshore Power S stems (Float'ing Nuclear Power Plants),
ALAB-489, 8
NRC 194, 209-210 (1978),
and cases there cited.
The impact of that decision, as confirmed by the Commission, was simply to provide for consideration of such accidents "in licensing proceedings concerning offshore plants.
Public Service Comoan of Oklahoma et al.
(Black Fox Station, Units 1 and 2), ALAB-573, ~sli
~o
. pp.
30-31 (December 7,
16/
1979).
However, the Commission's FNP decision clearly states that it is addressed only to offshore reactors.
"The existing policy on Class 9 accidents was not set aside for land-based plants.
(snore, at p.
31)
Nor were Licensing or Appeal Boards even authorized to conduct Class 9 proceed-ings with respect to land-based plants.
To the contrary, as the Appeal Board held in Black Fox, "the Commission-has 15/
36 Fed.
Reg.
22851-52,(December 1, 1979).
16/
See errata filed in the Black Fox dockets on December 17, 1979.
I N
reserved to itself the right to decide whether such matters are to be considered in any given case until it adopts a new 17y general policy."
Ibid.
Xntervenors, nevertheless, assert that the Commission has "abandoned any generic prohibition against consideration of class 9 accidents
.." and note that it nas directed the. Staff to bring to its attention individual cases in wh'ch the Staff believes Class 9 accidents should be con-sidered.
They go on to argue that the Commission "must now either give, or provide a reasoned explanation for its refusal to give, such consideration in each individual case.
It cannot delegate unreviewable discretion to the Staff."
(piotion, pp.
2-3)
.=
Intervenors'ssertion that the Commission has abandoned any. generic prohibition against consideration of Class 9
accidents is plainly erroneous.
As the Appeal Board stated in Black Pox, the Class 9 policy "was not set aside" except with respect to offshore plants.
In light of the fact that the Commission is "rethinking the policy," it is entirely appro-priate for the Commission to direct that it be advised of the cases, if any, that the Staff believes should now be excepted 3.7/
The fact that the Commission has announced its intention to hold rulemaking proceedings on the Class 9 issue is another reason the issue should not be considered in a specific adjudication.
Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8
AEC 7984 (1974).
16 from the policy. It would be an absurdity to limit the 4
Staff '
discretion in this respect.
- Indeed,
. any Commission instruction to the Staff would amount to no more than the adoption of some kind of interim policy, an action the Com-18/
mission has not yet taken.
In connection with the Commission's FNP and the Black Fox decisions,
.we note that the Appeal Board directed the Staff
't to make a recommendation to the Commission as to whether the Class 9 issue should be considered in that proceeding.
We submit that.
a similar direction would be inappropriate here.
The Board issued the direction in Black Fox because The proceeding before the Licensing Board is now half completed.
Mani-festly, if that Board is to reexamine the ramifications of Class 9 events, the time to instruct it to do so is now, not after the record closes and its decision issued.
~Sli o~ at p.
32.
No such consideration exists here.
The Class 9 issue has been finally ruled upon and the decision has already issued.
4.
Available relief.
All of the forms of relief suggested by the Intervenors turn upon the argument that some kind of consideration of Class 9 accidents is now required in this proceeding because of the FNP decision.
We submit that we have demonstrated that this is incorrect.
For that reason, 18/
The NRC Staff has provided the Commission with an initial response to the Commission's request for "recommendations on how the interim guidance of the Annex might be modified on an interim basis (8a)
See "Class.
9 Accident Considerations,"
SECY-79-594, October 31, 1979.
'17 neither the primary relief requested in the motion nor any of the suggested, alternatives should be granted.
The motion should therefore be denied.
In accordance with-this Board's request, we also address the question "whether there is any other avenue of relief open within the Commission."
(Tr. 868).
We believe the answer to this question has been supplied in the South Texas and Seabrook,proceedings..
Intervenors are free under 10 CFR 5 2.206 to request the Director of Nuclear Reactor Regulation to institute a show cause proceeding under 10 CFR 5 2.202 to revoke or suspend the construction permit.
ALAB-381, 5
NRC at 588; ALAB-513, 8 NRC at 696.
By making this suggestion we do not admit or suggest that the merits of such a petition would warrant its grant.
As did the Appeal Board in Seabrook, we merely point out that the Intervenors are "now in the wrong forum."
r Respectfully submitted, Harold F. Reis Lowenstein, Newman, Reis, Axelrad 6 Toll 1025 Connecticut
- Avenue, NW Washington, DC 20036 Telephone:
(202) 862-8400 Norman A. Coll
- Steel, Hector 6 Davis 1400 Southeast First National Bank Building 51iamig FL 33131 Telephone:
(305) 577-2800 Attorneys for Floiida Power 6
Light Company Dated:
January 16, 1980
APPEND lX
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".IH'<=,-r~>~ -'afp~ <<ZtZrj XIX @pzr~gfg...:....:.':.
FOR THE OISTRICT OF COLUMBIACIRCUIT, No. 76-17O9 September
- Term, 19>8 Martin Harold Hodder, et al.,Petitioners Ve U.S. nuclear Regulatory Commission and United S tat es of America, Respondents Ql >~~~
A'i11A Al PI' p..gS
'g h> 'I'ii-'8 y5$79 Florida POI"er
& Light Company, gGP A, FlSH Xntervenors GEO+
cLERK And Consolidated Case HO.-78-1149 BEFOREI McGovan and Uilkey, Circuit Judges; Flannery-,
- Judge, United States District Court for the District of Columbia 0::RDER Upon consideration of petitioners'otion for leave to file a petition for rehearing and/or suggestion for rehearing en banc, time having expired, no opposition having been filed thereto, and it appeaxing that petitioners'etition for rehearing and/or suggestion for rehearing en banc is lodged with the Clerk's Office, it is
~ i ORDERED,"by the Court, that t1Ie motion of petitioners Hodder, et 'al. for leave is granted and the Clerk is dixected to file petitioners'odged petition and/or suggestion and to enter same on the docket.
'er Curian FOR THE COURT:
p ~
eg GEORGE A
!'ISHER Clerk
- Sitting by designation puxsuant to Title 28 U.S.C.
5 292(a).
r':"~'Cr >~r FOR THE DISTRICT OF COLUI)IBIA Ht.
8 (f) i ')'..
~
v.'v~)r))W i W~
i>
CIRCUIT 7G-1709 r
5~r rt'a Harold Hodder, et al., Petitioners la n
e S~Ck~!":"i""="..I f'PP2, 78 I) vo U
S " lear Regulatory Commission ondents and United States
.of Am rica, Respon Flor'a Power 6 Light Company, Intervenor 4
Uflited Stat."". COurt Of ItrjP<,"ts for the District cf Col;;,.bio CiIo;it t" ~
Df=CZG feria 78-1149 Hartin Harold Hodder, et al., Petitioners GC"RG"- l-. Ft VE,.;
CLCRIi v,
U.S. Nuclear Regulatory CorImission and United States.of America, Respondents Florida Power and Light Co., Intervenor PETITIO'~S FOR RDIIE" OF ORDFRS OF THE ~%CLEAR A
REGULA'IORY CO~E1ISSIONa
'.I; R
"-'nited States d i,"ILKEY Circuit Judges, an Before: HcGv.>Ma'nd
~, i District Judge for the District o o
u-,.
JUD GHENT o
e heard on petit'ions for review of ox eers of the These causes came-on to be rear on p d were argued by counse n
l On consideration of Nuclear Regulatory Commission an ttre foregoing, it is that the oxders of the Nuclear ORDERED AND ADJUDGED by this Court, a
'rmed for the reasons der revieor herein are hereby affirme,
or Regulatory Co:~ssion un. er r set fort in f
th 'n tre attached memorandum.
~ I Lli v.ot C.:5
) o i --.v 2~v~ ~//CD
.s 4
o:'".
of t.3.no
~
Per,Curiam For the Court
/'
George >K. 'Fisher Clerk "Sitting by designation pursuarit to 28 U.S.C.
5292(a)
~
IL<l'~ORANDUiI Petit:oners seek review.of two decisions of the 'Nuc" ea=
~
Regulato y Commission authorizing intervenor Plorida Power and Light Company to construct an 850 megawatt nuclear po'.rer reactor at Hutchirson Island, Florida.
Xn No. 76-1709, petitioner" challenge an "RC Atomic Sa ety and Licensirg Appeal Board deci-sion affirm'ng a decision of the Atomic Safety and Licensirg Board pe mitt'rg 1'mited construction work at the site over petitioners'bjections that population density and distribu-tion were not in accordance with the NRC's own regulations, ard that the NRC's failure to examine the environmental effects of major nuclear accidents constituted a violation of the Hational Environmental Policy Act of 1969, 42 U.S.C.
g 4321, et sec. (1976)
In No. 78-1149, challenge is brought to an Appeal Board decis'on tha" th NRC's examination and consideration of alternat've si es
'for the proposed project complied with HEPA.
Petitioners'laim on the regulations issue is that Hutch-0 inson Island itself should be considered a "population center" within the meaning of 10 C.F.R.
part. 100.
he disagree.
The no-tion of a population "center'. implies some centralized groupirg or concentration of residents, not the type of dispersed po-ulace a-is present on Hutchinson Island.
See New Ena'land Coalit'on on Nuclear Pollution v. United States Nuclear Re<;ulatorv Co..ais-
- sion, Nos.
77-1219, et al., slip op. at 7 (1st Cir., 'August 22, 1978).
8 Petitioners'laim on the accidents issue has been fo e-closed by previous decisions in this court. It is well settled
- that, because of the extreme improbability of their occurrence, the NRC need not consider the environmental effects of so-called t
"Class 9" accidents.
Carol'na Environmen'tal Study Group v.
United Stat 510 F.2d 796, 798-800 (D.C. Cir. 1975). It is true that Carolina was dec'ded prior to the publication in final draft of the Reactor Safety Study, NASH-1400 (1975), that found a probabilit; of Class 9 accidents significantly greater than had been indicated by the previous study, NASH-740 (1957).
- Carolina, however, has been reaffirmed by decisions of this court subsec,cent to the publication ot the 1975 study.
Llovd H rbor Study Group, Inc. v.
NPC, No. 73-2266 (D.C. Cir., Nov.
29, 1978);.Aeschliman v.
- NRC, 547 F.2d 622, 632 n.21 (D.C. Cir. 1976),
rev'd on other c"rounds sub nom. Vermont Yankee Nuclear Power Cora.
r v.
- NRDC, 435 U. S.
519 (1978).
These decisions accord with the reasoned and consistent view of the NRC.
Lon Island Li h"in Co.
(Shoreham Nuclear Power Station),
ALM3-156, 6 ABC 831 (1973).
On remand from a previous decision of the Appeal Boa=d, ALAB-355 3
NRC 830 (June 20, 1976),
the NRC's staff conducted an investigation of six actual alternative sites, including Hutchinson Island.
The Appeal Board concluded that this analysis gave adequate consideration to possible alternative sites.
Florida Light and Power Co.
(St. Lucie Nuclear Power Project, Unit No. 2),
5 NRC 1038, 1050 (1977).
Ne af i m th's concl s'o",
finding it supported by sub tantial evidence in the record taken as a whole.
See Universal Camera Corp; 'v. NZRB, 340 U.S.
474 (1951).
4 Ll t
3 I
January ll, 1980 Docket No; 50-389 Mr. William G. MacDonald Executive Director Room 9106A Federal Energy Regulatory Commission 825 N. Capitol Street, N.W.
Washington, D. C.
20426
Dear Bill:
The purpose of this letter is to express our-appreciation for help we received from two members of your staff in one of our licensing proceedings.
Mr. Edward J.
Fowlkes and Mr. Daniel Lamke assisted us in the preparation and presentation of testimony at a contested evidentiary hearing which took place in Miami, Florida during the week of December 10, 1979.
It became obvious to the Board during the 'course of Mr. Fowlkes'estimony that a substantial amount of effort was required to prepare it.
Mr. Lamke also assisted the Board by responding to their inquiries concerning laws and regulations applicable to the Federal Energy Regulatory Commission.
The Board expressed their appreciation to both gentlemen.
So do we.
cc:
Edward J.
Fowlkes Daniel Lamke Sincerely, DISTRIBUTION JTourte11otte WPaton WOlnstead James R. Tourtellotte Shapar/Engelhardt/
Assistant Chief Hearing Counsel (2)
Reg.
Cent.
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