ML17212A357
| ML17212A357 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 07/17/1981 |
| From: | Thessin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8107210084 | |
| Download: ML17212A357 (15) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY.,AND LICENSING APPEAL BOARD In the Matter of FLORIDA POWER 8i LIGHT COMPANY
)
(St. Lucia Nuclear Power Plant, Unit 2)
Docket No. 50-389 OL NRC STAFF BRIEF IN OPPOSITION TO APPEALS FILED BY PARSONS AND WHITTEMORE, INC.,
RESOURCES RECOVERY (DADE COUNTY) INC.
AND FLORIDA CITIES FROM LICENSING BOARD'S ORDER DENYING PETITIONS TO INTERVENE I /r(
C)
James H. Thessin Counsel for NRC Staff July 17.
1981 O50 l
(/i 8107210084 810717 PDR ADQCK 05000389 0
1, e
UNITED STATES OF AMERICA 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 OL NRC STAFF BRIEF IN OPPOSITION TO APPEALS FILED BY PARSONS AND WHITTEMORE, INC.,
RESOURCES RECOVERY (DADE COUNTY) INC.
AND FLORIDA CITIES FROM LICENSING BOARD'S ORDER DENYING PETITIONS TO INTERVENE I.
INTRODUCTION On June 3, 1981, the Licensing Board issued an "Order Relative to Petitions to Intervene Concerning Antitrust Matters."
In that order the Licensing Board denied petitions to intervene by Parsons and Whittemore, Inc. and its subsidiary, Resources Recovery (Dade County)
Inc.
(P&W) and by Florida Cities on the grounds that it lacked juris-diction to consider petitions raising only antitrust concerns.
On June 15,
- 1981, P8W, and on June 23, 1981, Florida Cities, filed notices of appeal from the Licensing Board order.
The Staff contends that the June 3,
1981 Order was correct and should be sustained.
The Licensing Board lacked jurisdiction to grant petitions for intervention based on antitrust concerns.
II.
STATEMENT OF THE CASE On i<arch 9, 1981 the Commission published in the Federal Register a notice of an opportunity for hearing on the application of Florida Power and Light Company to operate Unit 2 of its St. Lucie nuclear power plant.
In response to this notice, a petition for leave,to intervene was.filed by PSW.
Petitions were also received from Helen Shea Wells and Florida Cities.
The petitions filed by P8W and by Florida Cities raised only antitrust matters.
On April 24,
- 1981, PSW also filed a petition to intervene and request for hearing in the ongoing construction permit antitrust proceeding.
The notice of opportunity to intervene in that proceeding had been published on November 21, 1973 (38 Fed.
~Re
. 32158).
To date there has been no ruling on their petition to intervene in that proceeding.
Florida Cities had already been admitted to the construction permit antitrust proceeding on 1
April 5, 1977.
On June 3, 1981, the Licensing Board in the operating license, pro-ceeding denied the petitions to intervene filed by P8W and Florida Cities on the grounds that it lacked jurisdiction to consider the p'etitions which raised only antitrust concerns.
Since the only other petitioner, Helen Shea Wells, had previously withdrawn from the proceeding, the Licensing Board issued an order dismissing the proceeding on June 16, 1981.
On June 18, 1981 the Appeal Board stayed the Licensing Board's dismissal 1/
"Florida Power
& Light Company; Receipt of Application for Facility Operating License; Availability of Applicant's Environmental Report; and Consideration of Issuance of Facility Operating License Oppor-tunity of Hearing" (46 Fed.
~Re
- 15831, triarch 9, 1981).
Order until this pending appeal is determined.
On June 26, 1981, the Appeal Board granted Florida Cities until July 2, 1981 to file a.brief on the denial of its application to intervene and directed the Staff to file a consolidated brief addressing both appeals.
III.
ISSUES PRESENTED ON APPEAL 1.
Whether this Licensing Board has jurisdiction to consider anti-trust issues.
2.
Whether significant changes in the licensee's activities have occurred subsequent to the construction permit proceeding to warrant an antitrust review.
3.
Whether rights arising under the Public Utility Regulatory Policies Act of 1978 are cognizable in this proceeding.
IV.
ARGUMENT A.
The Commission s
rant of jurisdiction to this Licensin Board oes not encom ass antitrust issues
"'""""The scope 'of 'the L'icensh"ng'Bo&'d'Y jurisdiction is limited to issues that the Commission has affirmatively delegated.
This delegation is reflected in regulations, in any applicable Commission orders, and in the Federal Register 'not'ice'.
Petitioners P&W and Florida Cities read the Federal Register notice to include a grant of jurisdiction over r
2/
E.g., Carolina Power and Li ht Com an (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4, ALAB-577, 11 NRC 18, 25-26 (1980);
Public Service Co. of Indiana (Marble Hill Nuclear Generating Sta-tion, Units 1 and 2, ALAB-316, 3 NRC 167, 170-71 (1976).
42 U.S.C.
5 2241.
antitrust questions.
A critical question, therefore, is what issues are specifically encompassed in the notice.
3/
A careful reading of the notice demonstrates that the only matters delegated are health, safety and environmental issues.
The relevant paragraph states:
The Commission will consider the issuance of a facility operat-ing license to Florida Power and Light Company which would authorize them to possess, use and operate the St. Lucie Plant Unit 2 in accordance with the provisions of the license and the technical specifications appended
- thereto, upon:
(1) the com-pletion of a favorable safety evaluation of the application by the Commission's staff; (2) the completion of the environmental review required by the Commission's regulations in 10 CFR Part 51; (3) the receipt of a report on the applicant's appli-cation for a facility operating license by the Advisory Committee on Reactor Safeguards; and (4) a finding by the Commission that
'the application for the'a& lity license, as
- amended, complies with the requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's regulations in 10 CFR Chapter 1.
Construction of the facility was authorized by Construction Permit CPPR-144, issued by the Commission on tray 2, 1977.
Construction of the St. Lucie Plant, Unit 2 is antici-pated by the NRC to b'e complete'd by December 1983.
46 Fed.
~Re 15831.
Only subpart (4) of this paragraph, requiring the Licensing Board to determine compli'an'ce with""the'eq'ui'elements of the Atomic 'Energy Act of 1954...and the Commission's regulations in 10 CFR Chapter 1," raises even a colorable claim that the Commission has delegated jurisdiction over matters beyond health, safety a'nd environ'mental issues.
Longstanding 3/
Petitioners'rguments that the notice fails to exclude antitrust issues and does not expressly limit the proceeding to health, safety and environmental issues fail to recognize this principle of affirma-tive delegation.
Equally misplaced is petitioners attempt to find a grant of antitrust jurisdiction in the notice of opportunity to intervene.
Although that notice invites participation by "any person whose interest may be affected by this proceeding,"
the class of persons so "affected" depends entirely on the delegated scope of "this proceeding."
Commission practice,
- however, makes clear that subpart (4) should not be r
read as making such a broad-based delegation.
It is clear Commission policy to hold antitrust hearings separate from hearings on health and safety issues, e.g.,
10 CFR Part 2, App.
A 5 X(e)
(1980);
10 CFR 5 2.104(d)
(1980).
Simultaneous hearings both on the com-plex antitrust questions and on the equally difficult technical and scientific issues minimize the danger that unnecessary delays will occur in the completion and operation of nuclear power plants.
See, ~e...
Marble Hill, at 172; Houston Li htin and Power Com an (South Texas Proj-ect, Unit Nos.
1 and 2), CLI-77-13, 5
NRC 1303, 1318 (1977).
In addition two separate hearings allow the Commission to appoint board members with appropriate expertise to the task at hand.
Marble Hill, at 172.
In fact, the Appeal Board in Marble Hill suggests that a combined hearing on antitrust and on health, safety and environmental issues would conflict with Congressional expectations that these hearings be held separately.
Ibid.
In the light of longstanding Commission practice which separates antitrust proceedings from health, safety and environment proceedings, the March 9 notice must be read to exclude antitrust questions absent clear Commission direction to the contrary.
The strength of the factors which underlie this procedure for separate proceedings compels the con-clusion that the Commission would deviate from it only by an unambiguous notice that the issues are to be consolidated.
B.
There cari be no antitrust review on the a
lication for an o eratin icense rior to a ommission in in of si ni icant c an es Before the Commission can initiate an antitrust review on an appli-cation for an operating license, it must comply with Section 105c.(3) of the Atomic Energy Act of 1954, as
- amended, 42 U.S.C.
5 2135(c).
That sec-tion requires the Commission; to determine--prior to any antitrust review l,
of an operating license application--that "significant changes" in the licensee's activities or proposed activities have occurred "subsequent to the previous review by the Attorney General and the Commission under this subsection in connection with the construction permit for the facility."
As the Commission noted in South Carolina Electric and Gas Com an,
"that language refers to a formal review process that contemplates at the least the publication of the advice of the Attorney General, as reqqired by Section 105c(1),
and extends to include a subsequent antitrust hearing conducted by the Commission or its delegees."
Thus, the mere application to an operating license of antitrust conditions previously imposed on a construction permit would not be sufficient cause for initiating a second antitrust review.
The threshold question under Section 105c.(3) is whether the "previous 0
review...in connection with the construction permit" has been completed.
Clearly in this case it has not; an integral part of that review--an "antitrust hearing" is still ongoing.
Just last week, the special licensing board empaneled to hear the construction permit antitrust ques-tions scheduled prehearing conferences on P&M's petition to intervene 4/
CLI-80-28, 11 NRC 817, 825 (1980); accord South Carolina Electric and
~B!
(V!g!'!'L!
N II June 26, 1981.
(for July 20, 1981) and on'.'issues of summary judgment and discovery (for August 17-18, 1981).
"Notice of Conferences of Counsel Concerning Intervention of Parsons and Whittemore, Inc.,
Summary Judgment Discovery and Related Issues,"
NRC Docket No. 50-389A, July 7, 1981.
Until this antitrust review at the construction permit stage is completed, the Commission cannot find "significant changes" "subsequent" to it. Because the Commission does not affirmatively initiate an anti-trust review on the application for an operating license without such a
determination, South Carolina Electric and Gas Com an, at 824, it would be error to imply that the Commission delegated such a review in its March 9 Notice.
6/
5/
Phil attempted to argue below that the license conditions from the
""-"construction permit antitrust review could themselves be "signifi-'-
cant changes" triggering a second antitrust review at the operating license stage.
"Brief of Resources Recovery (Dade County), Inc.
and Parson 8 Nhittemore, Inc. in support of their Petition for Leave to Intervene and Request for an Antitrust Hearing," April 7,
- 1981, pp. 10ff.
This position is erroneous.
It ignores the plain language af the statute Ve'quil'ing'%he'changes-both to be "subsequent"- to the-. "
construction permit review and to involve the licensee's, and not the Commission s, activities.
6/
Even if the Commission should later determine that "significant changes" had occurred, Section 105c requires that the application for an operating lic'en'se then be referred to the Department of. Ju'stice for advice.
Only after this review by the Justice Department would an opportunity exist for a hearing on the antitrust questions.
Since the Department has neither been asked for, nor given, its advice on this operating license application, it is premature for the Commission or its delegatee to hear antitrust contentions in connection with the operating license appli'catto'n.
'In fact,- Florida Cities concedes that it would not object to dismissal on the grounds of prematurity, if petitions for intervention "cannot be heard before completion of,con-struction permit antitrust review."
Brief of Florida Cities in Support of Their Appeal From Denial of Their Intervention Petition and Request for Consolidation and For Other Relief, July 2, 1981, pp. 5-6.
C.
"PURPA" Ri hts are not co nizable.in the instant roceedin P&W seeks intervention "not only on antitrust grounds but to pro-tect...rights under PURPA as well."-
For relevant purposes
- here, "PURPA" is the Public Utility Regulatory Policies Act, enacted in November,
- 1978, to encourage cogeneration and small power production.
P&W's arguments concerning its PURPA rights:state no issue cognizable by this Licensing Board.
Nowhere in any of its pleadings does P&W indi-cate how PURPA establishes an independent grounds for intervention.
Nor does it claim that the Commission possesses any enforcement authority under the Act.
f/ost importantly, P&W makes no allegation that its PURPA rights involve in any way health, safety or environmental issues a fatal defect in view of the Commission's grant of jurisdiction to the Licensing Board limited to these very questions.
The crux of P&W's contentions concerning PURPA rights involves its 1
disagreement with Section X of an antitrust settlement agreement now the subject of hearings in the ongoing construction license proceeding.
As 8/
P&W concedes, its "PURPA rights are interrelated with [its] antitrust concerns."-
P&W states that an important effect of PURPA is "the facili-tation and encouragement of competition" in the electric power industry, 10/
7/
8/
9/
"Brief of Parsons and Whittemore,'Inc.
and Resources Recovery (Dade County), Inc. in Support of Their Appeal from Denial of their Inter-vention Petition and Request for Hearing,"
June 15, 1981, p. 8.
Even if one concedes, ar uendo, the jurisdiction of the Licensing Board to consider the su ject matter of the antitrust settlement agreement, P&W fails to show how a settlement agreement, still under consideration in another proceeding and thus not yet final, could be relevant to an independent hearing on an operating license.
Petitioners'Petition for Leave to Intervene and Request for Hearing" filed April 7, 1981, p.
10.
10/, Ibid., p. 5.
and. asks for "a limited antitrust hearing" to be.heard on its PURPA claims.
The Licensing Board reasonably and properly concluded that 11/
petitioner 's PURPA arguments "raise[d] only antitrust issues," meriting no separate
- mention, and correctly dismissed them for want of jurisdiction.
V.
CONCLUSION For the reasons stated
- above, the Licensing Board's June 3, 1981 denial of the petitions of PQJ and Florida Cities should be sustained.
In addition, the Licensing Board s decision 'dismissing the operating proceeding involving Unit 2 of the St. Lucie nuclear facility should be accorded finality, as anticipated by the Appeal Board's order of June 18, 1981.
Respectfully submitted, Jam s
H. Thessin Counsel for NRC Staff Dated at Bethesda, Maryland this'17th'day of JBy,'1981.
11/
Ibid., p. l.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSI'NG APPEAL BOARD In the Matter of FLORIDA POWER 5 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 2)
Docket No. 50-389 - O.L.
Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 CERTIFICATE QF SERVICE I hereby certify that copies of NRC STAFF BRIEF IN OPPOSITION TO APPEALS FILED BY'PARSONS AND WHITTEMORE, INC.,
RESOURCES RECOVERY (DADE COUNTY) INC. AND FLORIDA CITIES FROM LICENSING BOARD'S ORDER DENYING PETITIONS TO INTERVENE in the above-captioned proceeding have been.served on the following by deposit in the United States mail, first c"lass or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 17th day of July, 1981.
Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal
'Board
~
4
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U.S. Nuclear Regulatory Coranission Washington, D.C.
20555 Dr. John H. Buck Atomic Safety and Licensing Appeal
" Boa'rd
~ I 'IfIIII%
V \\ ~ e
~
~ wv'&
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Christine N. Kohl Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Elizabeth S. Bowers, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulat'okColamission
'ashington, D.C.
20555 Dr. Peter A. Morris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
"20'555"'r.
Oscar H. Paris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Comnission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D;C.
20555 Harold F. Reis, Esq.
Lowenstein, Newman, Reis 5 Axelrad 1025 Connecticut
- Avenue, N.W.
Washington, D.C.
20036 Helen Shea Wells
~
~
93 El Mar Drive Jensen Beach, Florida Hutchinson Island Coalition c/o Helen Shea Wells 93 El Mar Drive Jensen Beach, Flor ida
George Spiegel, Esq.
Robert A. Jablon, Esq.
Daniel Guttman, Esq.
Spiegel 8 McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 George R. Kucik, Esq.
Mare Gary, Esq.
El len E. Sward, Esq.
~ Arent,'Fox, Kintner, Plotkin 5 Kahn 1815 H Street, N.W..
Washington, D.C.
20006 James H. Thessin Counsel for NRC Staff