ML17209A546
| ML17209A546 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/12/1981 |
| From: | Bauser M, Coll A, Coll N FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, STEEL, HECTOR & DAVIS |
| To: | |
| References | |
| NUDOCS 8101160261 | |
| Download: ML17209A546 (12) | |
Text
1 REGULAT INFORMATION DISTRIBUTIO YSTEM (RIDS)
ACCESSION NBR:8101160261 DOC ~ PATE: 81/01/12 NOTARIZED:
NO FACIL:50 389 St, Lucie Plant~
Unit 2~ Florida Power L Light Coo AUTH;NAME'AUTHOR A F F I LI AT I ON BAUSERzM ~ AD Florida Power L Light Co ~
BAUSERgM ~ AD Lowenstein~NewmaniReisgApelrad S, Toll COLLgN ~ AD
,Flor ida Power 8 Light Co ~
RECIP NAME'ECIPIENT AFFILIATION DOCKET ¹ 05000389
SUBJECT:
Response
opposing 801212 Commission semor andum 8
CLI-80"gieannouncing sua-sponte r eview.of 800730 Commission lacks jurisdiction. Certificate of Svc DISTRIBUTION CODE:
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION OCg@
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FLORIDA POWER
& LIGHT COMPANY
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(St. Lucie Nuclear Power Plant,
)
Unit No.
2)
)
)
)
Docket No. 50-389 BRIEF OF FLORIDA POWER
& LIGHT COMPANY IN RESPONSE TO COMMISSION MEMORANDUM AND ORDER (CLI-80-41)
On July 30, 1980 the Atomic Safety and Licensing Appeal Board
("Appeal Board" ), following an evidentiary hearing, issued a Decision concerning the need to consider the loss of all AC power (station blackout) as a design basis event for Unit 2 of the St. Lucie nuclear power plant.
Florida Power
& Li ht Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-603 12 NRC 30.
Subsequently, on December 12, 1980, the Commission issued a
Memorandum and Order announcing its determination "to exercise its authority to review on its own motion certain implications of ALAB-603." Florida Power
& Li ht Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), CLI-80-41 12 NRC In particular, the Commission expressed interest in two specific questions which it set forth -- and, further, prescribed that The parties to the review proceeding shall be the permittee Florida Power and Light
- Company, the Intervenors, and the NRC staff.
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The staff shall file its brief no later than 30 days after the date of this Order.
The other parties may file briefs by the same date.
Reply briefs may be filed no later than 50 days after the date of this Order.
In addi-tion, because of the generic nature of the issues on review in this proceeding, the Commission invites other persons to address either or both of these issues by submitting briefs no later than 50 days after the date of this Order.
Memorandum and Order, pp. 3-4.
As discussed below, Florida Power and Light Company
("FPL" or "permittee") is of the view that the Commission lacks the requisite jurisdiction to conduct the sua sponte review of ALAB-603 called for in its Memorandum and Order.
Accordingly, the instant proceeding should be terminated.
- However, should the Commission reject FPL's position and determine to continue with the review, or fail to terminate the proceeding prior to the date fixed for filing reply briefs, permittee reserves its right to respond to the substantive issues identified by the Commission in the reply brief provided for in the Memorandum
- /
and Order.
Section 2.786(a) of the Commission's regulations provides that, "Within forty (40) days after the date of a decision or action by an Atomic Safety and Licensing Appeal Board under 5 2. 785...
the Commission may, in cases of exceptional legal
"/
In any event, since the genesis of this proceeding resides in documents prepared by the Staff (see Memorandum and Order, p.
- 2) it is appropriate that the Staff have an opportunity to take the lead in responding to the specific questions posed by the Commission.
or policy importance, review the decision or action on its own motion."
Commission regulations also provide that, in cases involving the filing of, among other things, briefs with "the Commission itself, as opposed to officers who have been delegated authority to act for the Commission, the Secretary or Assistant Secretary are authorized to
. [e]xtend the time for the Commission to grant review on its own motion under 10 CFR 2.786 (a)."
See 10 C.F.R. 5 2.772 (f).
Subsequent to the issuance of ALAB-603 last July, a number of Orders were issued "[p]ursuant to 10 CFR 2.772,
[extending]
the Commission's time to determine whether to review ALAB-603."
~E
, Order dated October 6, 1980.
- However, as described in the Memorandum and Order itself, upon expiration of the last such Order, "[o]n October 14, 1980, the time expired for Com-mission sua sponte review of ALAB-603."
Memorandum and Order, p.
2 (footnote omitted).
In addition, the cited case law in no way supports a con-trary result.
The sole asserted basis of authority for the Commission's announced intention to review ALAB-603 is contained I
in one sentence appearing on the second page of the Memorandum and Order:
Because judicial review of final Commission orders is governed by the Hobbs Act, 28 U.S.C.
2347, the Commission has 60 days in which to reconsider an otherwise final decision.
American Farm L'ines v. Black Ball Frei ht, 397 U.S.
- 523, 540 (l970),
Pan American Petroleum Corp. v. Federal Power Comm.,
322 F.2d 999, 1004 (D.C. Cir. 1963).
Neither case,
- however, supports review in instant proceeding.
It is true that, in American Farm Lines, the Court found that the Interstate Commerce Commission
("ICC") had properly initiated reconsideration of a decision, even though judicial review had already been sought.
American Farm Lines v. Black Court relied upon a specific statutory provision empowering the ICC "at any time to grant rehearings as to any decision, order, or requirement and to reverse,
- change, or modify the same. "
Id.
No similar provision applies here.
In the Pan American Petroleum case the reopening of a proceeding by the Federal Power Commission
("FPC"), more than three months after issuance of the underlying order, was also upheld.
See Pan American Petroleum Cor
. v.
- FPC, 322 F.2d
- 999, 1001-04 (D.C. Cir. 1963).
- There, however, timely petitions for reconsideration had been filed with the FPC.
The 60-day period for seeking judicial review thus ran from the date of the FPC's denial of those petitions.
Since the reopening was ordered within this period, the agency's action was upheld by the court.
See id., 1003-04.
Here, of course, no party sought reconsideration of ALAB-603, and the time available for seeking judicial review expired 60 days later.
In any event, the NRC's own regulations operated to pre-clude any Commission review of ALAB-603 after October 14, 1980.
Those regulations prescribe a system under which "[t]he Appeal Board is authorized to render final decisions.
See 10 C.F.R.
55 2.785(a) and 2.770."
New En land Coalition on Nuclear Pollution v.
- NRC, 582 F.2d 87, 99 (1st Cir. 1978).
To be sure, the Commission may review a decision, either on its own motion, or on the basis of a petition by one of the parties.
- However, the time when either action may be taken -is specifically limited by 10 C.F.R.
g 2.786.
No party petitioned for review within the period fixed, and the time for review on the Com-mission's own motion admittedly expired.
Memorandum and Order, p.
2.
Consequently, even if the Commission might otherwise have technical jurisdiction under the Hobbs Act to reconsider ALAB-603, it cannot. ignore the procedures and limited period for review established by its own regulations.
An administrative agency is bound not only by the precepts of its governing statute, but also by those incorporated in its own regulations.
See, e.g.,
United States
- v. Nixon, 418 U.S.
- 683, 694-98 (1974); Nader v.
- NRC, 513 F.2d 1045, 1051 (1st Cir.
1975).
"It is, of course, a fundamental tenet of our legal system that the Government must follow its own regulations."
VanderMolen v. Stetson, 571 F.2d 617, 624 (D.C. Cir. 1977).
As adopted, the Commission's regulations relating to "finality" introduce at least some elements of definiteness into an otherwise complex and lengthy administrative system.
License applicants, other parties to Commission proceedings, and the courts should be able to rely upon the framework established.
Reconsideration, in the existing circumstances, would disturb
the established system and inject unnecessary confusion.*/
For the reasons discussed
- above, the Commission should terminate this proceeding for lack of jurisdiction.
Respectfully submitted, Mz.chael A. Bauser Lowenstein,
- Newman, Reis Axelrad 1025 Connecticut
- Avenue, NW Washington, DC 20036 Telephone:
(202) 862-8400 Norman A. Coll
- Steel, Hector
& Davis 1400 Southeast First National Bank Building Miami, FL 33131 Telephone:
(305) 577-2800 Attorneys for Florida Power Light Company Dated:
January 12, 1981
"/
This is not to say, of course, that the Commission is without power to address any issues raised in ALAB-603 which it feels are worthy of consideration.
For example, the Commission could initiate a rulemaking proceeding and, thus, provide guidance with respect to any matter of concern by means of an adopted regulation.
See 10 C.F.R. 5 2.801.
In fact, it appears that Chairman Ahearne may have been inclined toward just such an approach.
Memorandum and Order, p. 3n.4.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
FLORIDA POWER
& LIGHT COMPANY
)
)
(St. Lucie Nuclear Power Plant,
)
Unit No.
2)
)
)
)
Docket No. 50-389 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the "Brief of Florida Power
& Light Company in Response to Commission Memorandum and Order (CLI-80-41)" were served on the following by deposit in the United States mail, first class, properly stamped and addressed, on the date shown below:
Chairman John F. Ahearne U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Peter A. Bradford U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Joseph M. Hendrie U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Attn:
Chief, Docketing and Service Section Dr.
W. Reed Johnson, Administrative Judge Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C.
20555 Richard S.
- Salzman, Esq., Administrative Judge
- Chairman, Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission Washington, D.C.
20555 Alan S. Rosenthal, Esq., Administrative Judge Chairman Atomic Safety
& Licensing Appeal Panel Nuclear Regulatory Commission Washington, D.C.
20555 Edward Luton, Esq., Administrative Judge
- Chairman, Atomic Safety
& Licensing Board Nuclear Regulatory Commission Washington, D.C.
20555
Michael Glaser, Esq., Administrative Judge Alternate Chairman, Atomic Safety Licensing Board 1150 17th Street, NW Washington, D.C.
20036 Dr. Marvin M. Mann Technical Advisor Atomic Safety
& Licensing Board Nuclear Regulatory Commission Washington,'.C.
20555 Dr. David L. Hetrick, Administrative Judge Professor of Nuclear Engineering University of Arizona
- Tucson, AZ 85721 Dr. Frank F. Hooper, Administrative Judge Chairman Resource Ecology Program School-of Natural Resources University of Michigan Ann Arbor, MI 48104 Terence J. Anderson, Esq.
University of Miami School of Law Coral Gables, FL 33134 William D. Paton, Esq.
Counsel for NRC Regulatory Staff Nuclear Regulatory Commission Washington, D.C.
20555 William J. Olmstead, Esq.
Nuclear Regulatory Commission Washington, D.C.
20555 Local Public Document Room Indian River Junior College Library 3209 Uirginia Avenue Ft. Pierce, FL 33450 Norman A. Coll, Esq.
- Steel, Hector
& Davis 1400 Southeast First National Bank Building Miami, FL 33131 Martin Harold Hodder, Esq.
1130 N.E. 86th Street Miami, FL 33138 Michael A. Bauser Dated this 12th day of
- January, 1981 Lowenstein,
- Newman, Reis Axelrad 1025 Connecticut Avenue, NW Washington, D.C.
20036 (202) 862-8476