ML17266A159
| ML17266A159 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 03/06/1980 |
| From: | Harold Denton Office of Nuclear Reactor Regulation |
| To: | Anderson T, Hodder M HODDER, M.H., MIAMI, UNIV. OF, CORAL GABLES, FL |
| Shared Package | |
| ML17208A366 | List: |
| References | |
| ALAB-579, NUDOCS 8004020218 | |
| Download: ML17266A159 (96) | |
Text
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- JMurray, OELD Docket No. 50-389 Martin H. Hodder, Esq.
1131 N. E. 06th Street Miami, Florida 33138 Terence J. Anderson, Fsq.
University of !tiami School of Law Coral Gables, Flor ida 33134
Dear Sirs:
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- CMiles, PA HBerkow MGroff (EDO-8429;
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GErtter In accordance with its Memorandum aiid Order of February 14, 19$,"~ANP-579),
the Atomic Safety and Licensing Appeal Board has referred your motion to me for consideration under 10 CFR 2.206 of the Commission's regulations.
Your motion requested that certain action be taken regarding the consideration of the environmental consequences of Class 9" accidents at the site of the St. Lucie Nuclear Power Plant, Unit tlo. 2.
This letter is sent to inform you that your motion will be treated as a request for action under 10 CFR 2.206 In your reply of February 5, 1980, to the responses of the staff and the licensee to your original motion, you asked the Appeal Board to direct the staff "to advise the Commission i>>ithin 30 days of the reasons why it believes the consequences of class 9 accidents should or should not he considered in this case...."
I cannot guarantee that I will reach a decision on your motion within 30 days and no health or safety reason compels an imediate response within that time.
You will receive a response, however, within a reasonable time as contemplated in 10 CFR 2.206, Enclosed for your information is a copy of the notice that is being filed for publication with the Office of the Federal Register.
Sincerely, ONP!11i S1K1lod bf H.R. Dontott Enclosur e:
As stated cc:
See next page Harold R. Denton, Director Office of Nuclear Reactor Regulation
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lT' Reed Johnson Atomic Safety and Licensing Appeal Board U.S. ffuc'tear Regulatory Corrsrtission Washington, DC 20555 County Administrator St. Lucio County 2300 Yirginia Avenue, Boom 104 Ft. Pierce, Florida 33450 fforman A. Coll, Esq.
hcCarthy, Steel, Hector 5 David First flational Dank Building 14th Floor Hiami, F'lorida 33131 Attorney Heneral Department of Legal Affairs The Capitol Tallahassee, Florida 32304 ffamilton Qven, Jr., Administrator Department of Environmental Rggul ation Poner Plant Siting Section State of Florida t~ontgomery Building 2562 Executive Center, Circle E
Tallahassee, Florida 32301 fJr. Jacf; Shreve State of Florida Room 4 Office of the Public Counsel Tallahassee, Florida 32304 Ri char d S. Sal zman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 s
Environmei>tal Impact Coordinator'.
S ~ Environrrental Protection regency 345 Courtland Street Atlanta, Georgia 30308 Jack R ~
He>'fman, Esq.
Harold F. Reis, Esq.
ffet>man, Rei s and Axelr ad 1025 Connecticut Avenue, NH Hashington, OC 20036 Florida Po>ier 5 Light Company ATTfi:
Dr. Robert E, Uhrig l/ice President Advanced Systems 8 Technology P. 0.
Box 529100 fsliami, Florida 33152 Bureau of Intergovernmental Re 1ations 660 Apalachee Parkway Tal 1 ahassee, Florida 32304 Office of Federal Activities {A-104)
U.R. Environmental t3rotection Agency Room 535'est Tower 401 ff Street, Slf lfashington, DC 20460 bcc:
A. Rosenthal, ASLAB
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.U."IITED STATES OF Af<<'.ERICA fIUCLEAR REGULATORY COiffISSION FLORIDA PGIlEIR 8c LIGHT COMPANY
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(Sta Lucie Nuclear Power Plant,
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Unit f<o. 2)
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7590-1 Docket f<o. 50-389 REQUEST FOR ACTION UNDER 10 CFR 2.206 Notice is: hereby given that the Director of Nuclear -Reactor Regulatiotr is considering under 10 CFR 2.206 a request for action filed by Hartin H, Hodder, Esq.,
and Terence J. Anderson, Esq.
This ~equest was originally filed on December 12, 1979, before the Atomic Safety and Licensing Appeal Board as a
motion on behalf of the intervenors in the St. Lucie i'nuclear Power Plant, Unit No. 2, construction permit proceeding, The motion requested that certain action be taken regarding consideration of the environmental consequences of "C'lass 9" accidents at the St, Lucie site.
The Appeal Board dismissed the motion, however, for want of juris'diction and then referred the motion to the Director for considera.ion under 10 CFR 2.206.
See ALAB-579 (Feb.
14, 1980).
As provided in 10 CFR 2.206, appropriate action will be taken on the request within a reasonable
- time, Copies of this request for action are available for public inspection in the Commission's Public Document Room at 1717 H Street, N.H !Aashingto>>,
D.C.
20555 and in the local public document room at Indian River Coneunity College Library, 3209 Virginia Avenue, Ft. Pierce, Florida.
FOR THE I'IUCI.EAR REGULAl'ORY COIIIIISSIOff Original SIEIIeII hy H.ft.oonton Dated at Bethesda, t~iaryland this d<
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NT NATURE I RECTOR DESCRIPTION Q LETTER 0 MEMO 0 REPORT Q OTHER 1ntervcnors'rt)an to conIL)der the env)ronI nba) consequences of Class 9 ace)dents ai Cha St. t.ucfI3 plant for cons4derat$ on under lo Ct'R R.N6 SPECIAL INSTRUCTIONS OR REMARKS DOCUMENT/COPY NO.
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EXECUTIVE DIRECTOR FOR OPERATIONS PRINCIPAL CORRESPONDENCE CONTROL
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UNITEDSTATES NUCLEAR REGULATORY COIVIMISSION WASHINGTON, D. C. 20555 February 22, 1980 MEMORANDUM FOR:
Harold R, Denton, Director Office of Nuclear Reactor Regulation FROM:
SUBJECT:
James P. Murray Office of Executi've, Legal Director APPEAL BOARD'S REFERRAL OF I'NTERVENORS I MOTION 'TO NRR FOR TREATMENT UNDER '10 CFR 2.206 Enclosed with this memorandum is the formal referral from the Appeal Board of the intervenorsI motion to consider the environmental effects of "Class 9" accidents at the St, Lucie site.
As I explained in my memorandum of February 20th, the Appeal Board dismissed the motion for lack of jurisdiction, but referred the motion to you for consideration as a request for action under 10 CFR 2.206.
Two documents that are attached to the Appeal Board's referral should be considered as comprising the "request for, action" in issue here:
the intervenors'otion of Decemb'er 12,
- 1979, and the intervenors'eply of February 5, 1980.
I enclosed a draft letter and a draft'Federal
~Re ister notice to my February 20th memorandum.
In lieu of ~t ose tao drafts, please use the drafts enclosed to this memorandum.
'The letter and notice should be issued as soon as possible.
Enclosures:
As Stated James P. Murray Director and Chief Counsel Rulemaking and Enforcement Division CONTACT:
Steve Burns x 28064
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UNITED STATES CLEAR REGULATORY COMMISSIO ATOMICSAFETY AND LICENSING APPEAL PANEL WASHINGTON,D.C. 20555 February 14, 1980 MEMORANDUM FOR:
Harold R. Denton, Director Office of Nuclear Reactor Regulation FROM:
C. Jean Bisho Administrative cretary ASLAP RE:
FLORIDA POWER 6 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit No.
- 2) Docket No l5 0 3 8 9 A
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Pursuant to ALAB-579, the Appeal Board has referred for your consideration under 10 C.F.R.
52.206 intervenors'otion to consider the environmental consequences of Class 9
accidents at the St. Lucie plant.
Copies of the relevant documents are attached.
Enclosures:
(1)
(2)
(3)
(4)
(5)
Intervenors'otion of Dec.
12, 1979 Applicant's response of Jan.
17, 1980 Staff response of Jan.
18, 1980 Intervenors'eply of Feb.
5, 1980 ALAB-579 of Feb.
14, 1980 cc (w/o enclosures):
All parties Docketing S Service Branch
P
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UNITED STATES.OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Licensing And Licensing Appeal Board Michael C. Ferrar, Chairman and presiding officer In the Matter of
)
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FLORIDA POWER 6 LIGHT COMPANY
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(St. Lucie Nuclear Power Plant,)
Unit No.
2)
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Docket No. 50-389 Motion In view of the Commission's order with respect to land based nuclear reactors, adopted September 14,
- 1979, intervenors move that this Appeal Board enter an order 1.
Directing the staff to file a proposed supplement to the Final Environmental Statement
("FES") in this matter which either (a) gives consideration to the environmental conse-auences 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 Com-mission's determination of the environmental impact of a decision to license construction of the proposed plant at J"""
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St. Lucie on Hutchinson Island; or
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(b) fully justifies why such. consideration should not be given in this particular case; and 2.
Establishing prehearing and hearing procedures for a determination of the adequacy of the PES as supplemented.
In the alternative, intervenors move that the Appeal'oard enter an order either:
1.
staying completion of these proceedings until the, Commission has received and acted upon the staff recom-mendations it requested for. interim modification of the interim guidance set out in the Annex, or 2.
certifying to the Commission as major and novel the questions of the standards to be applied by the staff in determining in which "individual cases
. the environ-mental consequences of class 9 accidents environmental should be consid'ered", the procedures by which such staff determinations are-to-be reviewed, and how t'e Commission's order of September 14, 1979, is to be implemented with respect to pending proceedings.
In support of this Notion, intervenors submit:
1.
On September 14',
1979, the Commission announced its intention to complete generic rule making proceedings specifying the.'nvironmental consideration to be given 2
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class 9 accidents with respect.to land based nuclear plants
'nd, pending completion of that process, directed the staff I
II to "bring to our attention, any individual cases in which it believes the environmental consequences of class 9
accidents.
should be considered."
(Offshore Power
~S stems (Floating Nuclear Power Plants)
NRC
)
- Addendum, p.
8a*
(September 14, 1979).
2.
Since the Commission has now abandoned any generic prohibition against consideration of class 9 accidents, it 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.
3.
Because the order was entered prior to completion of these proceedings, the revised policy must be applied in these proceedings and it is appropriate for this Appeal Board -to retain jurisdiction to dispose of the factual (Peach Bottom Atomic Power Station, Unit 2 and
- 3) et al.,
ALAB-480, 7 NRC 796 (1978)
(announcing procedures to be
- To facilitate reference to quoted language, a copy of the Offshore decision is included in the Addendum to this'otion.,
3
applied in these and other proceedings pending before Appeal Board with respect to "radon emission" issue) and proceedings
- herein, ALAB 537, 9
NRC (April 5, 1979)
(establishing procedures for resolution of factual issues arising after Xnitial Decision).)
4.
Xn the alternative, the Appeal Board may wish to stay these proceedings pending consideration of staff recom-mendations for interim modification to interim class 9
policy.
(See Offshore,
~su ra, Addendum at p.
Sa, and Memo-randum of September 14,
- 1979, from Samuel Chilk, Secretary, to Lee Gossick, Executive Director for Operations, repro-duced in Addendum,
- p. 9a.)
5.
Again, in the alternative, the Appeal Board may wish to certify to the Commission as'ajor and novel the questions arising from the application'f the September 14 decision to these proceedings pursuant. to 10 C.F.R.
55 2.730(f) and 2.785(d)
(See,'ffehcre'ower
~Sst'elns (Floating Nuclear Power Plants)
ALAB-500, 8
NRC 323 (1978)
(procedure applied.).)
Respectfully submitted Martin H. Hodder 1131 N.E. 86th Street Miami, Florida 33138 (305) 751-8706 Terence J. Anderson University of Miami School of Law Coral Gables, Florida 33134 (305) 284-2253 or 2971 Attorneys for intervenors 4
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Cert'ifi'cat'e 'o'f Servi'ce I hereby certify that on December
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1979, copies of the foregoing Motion were deposited in the United States mail, properly stamped and addressed to each of.
persons named in the attached Service List,.
Martin H. Hodder an attorney for intervenors December l~, 1979.
UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY
& LICENSING APPEAL BOARD In the Matter of:
FLORIDA POWER
& LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 2)
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Docket No. 50-389
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SERVICE LIST Mr. Samuel J. Chilk Secretary, U.S. Nuclear Regulatory Commission Attn:
Mr. C.R.
Stephens Chief Docketing and Service Section Washington, DC 20555 Edward Luton, Esquire Chairman Atomic Safety
& Licensing Board Panel Nuclear Regulatory Commis-sion Washington, DC 20555 Michael. C. Ferrar, Esquire Chairman Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission Washington, DC 20555 Michael Glaser, Esquire Alternate Chairman Atomic Safety
& Licensing Board 1150 17th Street, N.W.
Wash'ngton, DC 20036 Dr.
W.
Reed Johnson Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission Washington, DC 20555 Richard S.
- Salzman, Esquire Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission Washington, DC 20555 Dr. Marvin M. Mann Technical Advisor Atomic Safety
& Licensing Board.
Nuclear Regulatory Commis-sion Washington, DC 20555 Dr. David L. Hetrick Professor of Nuclear.En-gineering University of Arizona
- Tucson, AZ 85721
Alan S. Rosenthal, Esquire.
Chairman Atomic Safety
& Licensing Appeal Panel Nuclear Regulatory Commission Washington, DC 20555 Dr. Frank F. Hooper Chairman Resource Ecology Program School of Natural Resources University of Michigan Ann Arbor, MI 48104 Harold F; Reis, Esquire Lowenstein, Newman, Reis, Axelrod 6 Toll 1025 Connecticut Ave., N.W.
Washington, DC 20036 Norman A. Coll'squire
- Steel, Hector 6 Davis Southeast First National Bank Building Miami, FL 33131 William D. Paton, Esquire Counsel for NRC Regulatory Staff Nuclear Regulatory Commis-sion
- Washington, DC 20555 William J.
- Olmstead, Esquire Nuclear Regulatory Commis-sion Washington, DC,20555
ADDENDUM UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSION COhQdISSIONERS:
Joseph M. Hendrie, Chairman Victor Gilinsky Richard T. Kennedy.
Peter A. Bradford John F. Ahearne
~In the Matter of OFFSHORE POWER SYSTEMS (Floating Nuclear Power-Plants)
Docket No. STN 50-437 MEMORANDUMAND ORDER Offshore Power Systems ("Offshore" or "applicant")
has applied to'the Commission for a license to manufacture identical floating nuclear plants ("FNPs"). The FNP concept involves mounting a standard nuclear generating station on a barge.
Offshore believes-, that the FNP concept may offer several advantages over land-based plants, including increased resistance to earthquakes, abundance ofcooling water'and the possibility that acceptable sites can be found near densely populated regons that lack suitable lynd sites.
The history of this complex proceeding is ably sum-marized in the Appeal Board's decision below, and need not be repeated here.
Offshore Power Systems (Floating Nuclear Plants), ALAB-489, 8 iNRC 194 (1978). The case is before the Commission on a sin~pe
)egal question certified to us by the'ppeal Board - - whether the probability and consequences of a so-called,"Class 9" accident at an FiNP are proper subjects for consideration in the Commission's environmental analysis of Offshore's application. 0+shore Po~~r Systems (Floating
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'uclear Plants), AI.A3-500; 8 NRC 323 (1978). The Commission's staff ha done an analysis ofsuch an accident at an FNP, and, in a supplemental Final Environmental Impact Statement ("FES IQ'-'), the starr has concluded that the liquid pathway risks associated with such an accident are significantly
. meater than would be the case with a land-based plant.
AccordinJ~y, the stair tNes the position that license conditions designated to miti~e those risks should be imposed. The
. staQ's position has not yet been tested at a hearing before a Licensing Hoard.
Offshore disputes certain aspect ofstaQ's analysis. More-Amdarnentally, however,'ffshore contends that the Class 9 accident analysis should not have been performed at all, that it.
should be ~~'cken from the impact statement, and that the" subject should not be in contention at the upcoming he'aring."
For the reasons that follow,-we believe that the stafFs analysis ofthe Class 9 accident question is properly included in the environmental impact statement in this proceedino It follows from our existing rules that the subject may be placed in contention at the hearmg and that the Board may thereafter impose what ver license conditions are proven to be necessary or appropriate ro fulfillour responsibilities under the National Environmental Policy Act.'lthough the particular question we decide today has not been before us previously, the bro'der subject of whether and how such accidents should be considered '
environmental analvsis ofreactor applir;atiogs is not new.
e term "Class 9 acct ents stems from a posal to place nuclear
'power plant accidents in nine categories to take account ofsuch accidents in preparing environmental impact sMements. That proposal vas put forward forcommentin aproposed Annex".
to the Conunission's regulations implementing ltEPA.~36 Fed; Beg. 228S1-S2 {December 1, 1971). The nine categories As m1sc~~~ '!o;v. the issues considered here have arisen in the ccn;ext of c~ rY"PA. spcnsCciiities. Vfhether safety consideraticns miPt require tre st ifs pre pcsed iicense ccndiuons is not be fere us. The Licensins Board has rct yet r Aed cn the suety cf F. iP's and we express no views on
/h at issue he.e.
Veo e-re>> I"teens
'~ ere t!:en ccu'fied in Appendix 0 to 10 CFR Pan
- 50. Tnev re no.v codd:led in 10 CHZ Part 51.
in that "Annexse were listed in increasing order of severity.
'I'Class 9" accidents involve sequences of postulated succes-sive failure more severe than those postulated for the design basis ofprotective systems and engineered safety features. The Annex concluded that, although the consequences of Class 9 accidents might be severe, the likelihood that of such an
'accident was so small that nuclear power plants need not be designed to mitigate their consequences,
- and, as a result, discussion of such accidents in applicants'nvironmental Reports or in stafCs etndsonmentai.impact statements was aot re uired.
e Annex specUically referred to the "defense in..
depth" concept, the Commission's quality control system, its inspection pro~~', and its general requirement of design conservatism.
36 Fed. Re~. at 22852.a When the Annex was published the Commission directed that it be followed as, "interim guidance" until the Commission took further action.
When the Commission revised and recodified its environmen-tal regulations in 1974, the Annex's status as a proposal and "interim guidance" was not changed, the Commission merely noting that it was "still under consideration."4 While the Annex hasnever been formallyadopted by the Commission - - and is therefore not binding upon it - - its guidance has of course keen followed by our-adjudicatory
. boards,-
and it has withs'tood.challenge in the courts.
In ALAS-489 the Appeal Board addressed the scope of that policy and also outlined its view of the underlying rationale.
Although we need not 'reach all of the issues arising, in this proceeding and decided by ALAS-489, a summary ofhow the sThis discussion ofthe Annex is taken from the Appeal Board decision in ALAB-4S9, 8 AEC at 209-10. As noted below, staff disputes that the Annex. is bmed solely on probability and, although the Appeal Boarcl reiected that view in ALAB-489;we need not decide that question today.
.'39 Fed. Reo. 26279 (July 19, 1974).
sSee the decisions cited in ALAB-489. 8 NRC at 210 n.52.
- eSee, e.g., Hodder v. sYRC. Nos. 76-1709 and 78-1149 (D.C. Cir.,
December 26, 1978); Lloyd Harbor Study Group v. sYRC, No. 73-2266 (D.C. Cir., November 29, 1978); Porter County Chapter of tire l=aak H'alton Leag ue v. AFC, 533 F.2d 1011 (7th Cir.), cert. denied 429 U.S.
858 (1976); Carolina Environmental Study Group v. U,".ired States, 510 F.2d'796 (D.C. Cir. 1976).
Class 9 issue arose in this proceeding willplace our decision in context.~
Staff originallyplanned a two-part impact statement for
'06'shore's application - - FES I would consider the environ-mental impact ofthe construction and operation of OQ'shore's manufacturing facilityia.SacksonviHe, Florida; FES IIwould consider the 1Rely impact ofdeploying FNPs and strike a cost-benefit balanc for the. overall project. FES I was published in October 1975 and FES II in September 1976. However, in response to adverse criticism ofFES II,staffissued an PES II
'ddendum in June 1978 which further analyzed the environ-
'ental impact, ofestuarine and riparian sites for FNPs. While FES IIwas'under preparation, staff (apparently in response to'uggestions by the Advisory Committee on Reactor Safe-guards) undertook. to prepare a "Liquid Pathway Generic Study" ("LPGS") which would explore the consequences of accidental releases of radio-activity in ocean waters. The consequences ofthat generic study were then to be integrated into a further impact statement, PES III,to which the overall cost-benefit balan'ce would oe transferred. The draft LPGS was issued in September 1976, followed by the draft FES III the following month. The final LPGS was published in February 1978 and FES IIIaprxared in December'1978.
Before us, as they did oefore the Appeal Hoard, the staff has offered four separate reasons why the Commission policy on Clas's 9 accident consideration embodied in the Annex and consistently applied to land-based plants should not prevent it and the Licensing Board from considering Class'9 accidents as part ofthe environmental evaluation ofOffshore's application.
Onlv one of t'nose arguments need be addressed here.a Staff
~in additioa to the Class 9 issue, the Appeal Board in~~S9 also addressed the authority ofLicensing Boards to impose deadlines on stafPs Glmg ofenvironmental unpact sutements.
S NRC at 199-208. That subj~
ls not oefofe Us today sStaQ's other argu=ents can briefiybe smamariaecL First, staff~
that the Annex was based upon an eva1uation of nYc (probability mvltiplicd by consequences),
not~ on ~~ability. The unique siting of an FiiP cn:ated a posst"oilityofa gr~~er Class 9 risi: than fora land+ased plant, and therefore its consideration was not proscribe by the Annex. 'Ihc Appeal Board rejected this arg e~ noting that a long li~ofBoard decisions hei read the Annex as being based solely on probability. Si't212.
argues, and a majority of the Appeal Board agreed'" that the Annex is not controlling on the issue ofconsideration ofClass 9 accidents for an FNP since FNPs were not within the Commission's contemplation when the Annex was issued.
Staff further argues that the Annex should not be applied by analogy since a potential Class 9 accident at an FNP presents risks that clearly differinhnd from those presented by a similar accident at a land-based plant and also at least potentially presents a ~ater magnitude of risk. Therefore, since neither the Annex nor any subsequent Commission ~dance explicitly proscribes consideration ofClass 9 accidents foran FNP, stafF argues that NEPA permitted at least. initial consideration of Class 9 accidents in connection with Offshore's application Once that inquiry had been made, and once what staffbelieves to be significant and unique risks had been identified, the full disclosure principles of NEPA require thM the study be
.included in the impact statement and tested in the hearing
. process.
In accepting this argument, the Appeal Board noted that the policy ofthe Annex had never clearly been held to apply to FNPs and that the question before it really was whether to extend that policy to situations. not considered at its adoption.
The Board felt that several reasons militated against such an extension. First, the'Board noted that the Annex has been
'allowed to languish ever since" it was issued as a proposed
. regulation more than seven years ago. 8 NRC at 220. Second, the Board found that the concept of=FNPs was."unknown" Second, staff argues that the policy of the Annex is that consideration of Class 9 accidents is not "required" but that it remains "permiued" to consider such accidents and to present the results ofsuch consideration to the Licensing Board. The Appeal Board re,'ec:ed this argument, noting that similar language used elsewhere in the Commission's regulations (e.g. Table S-3, 10 CFR 51.2C(e)) has uniforrnlv been read as rut pcrmittin any discussion of the maner in question. 8 NRC at 216-18.
Stat)'s third argument, which was not add~sed by the Board, is that. the Annex either explicitlyor implicitlycontains a proviso waiving its proscript-ionn on Class 9 accidents whenever "special circumstances,"
such as the unique siung for FNPs, make application ofthe proscription unwise. Cf. 10 CFR 2,758(b).
~Dr. Buck dissented on this ooint, although he concurred in thc relnaiftder oftjte decision. 8;YRC at 225.
wheri the Annex was issued.Id. Third, the Board noted that the Anaex had been issued by the AEC and not the NRC and that-
"inthis area itis a mistake to assume too readily that the NRC
~ould automatically extend, sub silentio, policies foanulated by the Atomic Energy Commission." Id. at n.92. Finally, the Board apparently felt that the NEPA maadade to study the
., environmental consequences of major federal actions to the Realest extent possible supported a policy of deciding open qu'estions in favor ofconsidering.matters ofpotential environ-mental significance. Seeid. at 220-21.
We agree with the result the Appeal Board reached, although on a somev hat diff'creat basis - - a basis that was not available to the Appeal Board. Unlike the Board below, we are empowered to make policy as well as to apply it. As the Board decision in ALAS-489 aad the parties'riefs submitted to us demonstrate, at the very least, it is far from certain that the Annex and the policy deriving from itabsolutely proscribe any consideration ofClass 9 accidents at an FNP. And even ifthe Annex did proscribe such consideration, itwas only indended as irterim guidance until the Commission determined to take further action. Accordingly, we are free to decide on the basis of the facts known to us today whether the Licensing Board should be allowed to consider the eavironmeatal consequences of a Class 9 accident at the FNPs which OA'shore proposes to manufacture.
As we noted earlier, we need aot approach this question as an academic exercise. The NRC staff has already prepared the FES Ill aad it has concluded that the environmental consequences of a Class 9 accident are such as to call for specific licensing conditions on Offshore's application. FES IIIwas adopted only after staff solicited and analyzed public comment, including extensive comments submitted by Offshore.
In reality then th'e question before us is whether we wish to order the Licensing Board to blind itself to what our own staff views as an environmental risk that requires specific mitigative, actions. NEPA is based on the plulosophy that the federal government should consider all available information about
the reasonably likely environmental consequences of its proposed actions and should take appropriate measures to mitigate or eliminate the adverse impacts ofthose actions when practical. In view of that philosophy we should not refuse to consider in this case the potential relevance ofthe LPGS and FES HI to the Commission's consideration of Offshore's application, and we are prepared to exercise our policymaking
- authority to remove any ambiguity about. whether the policyof the Annex runs counter to that action.
. Offshore raises two remaining objections to any con-sideration of Class 9 accidents. First, Offshore notes that the Commission's Final Acceptance Criteria forEmergency Core Cooling Systems (set out in 10 CFR50.46 and inAp'pendix K to 10 CFR Part 50)'are designed to assure that no Class 9 accident willoccur and that in fact no reactor can sufrer a Class 9 accident unless its ECCS fails. Since there is apparently no dispute that Offshore's standardized reactors will satisfy the Acceptance Criteria, Offshore argues that consideration of Class 9 accidents in connection'with its application amounts to a challenge of the ECCS regulations, As the Board noted below, there is a "certain logical strength" to that argument. 8 NRC at 221. However, 'it fails here because, as the Board below correctly'noted, we*have previously held in Vermont Yankee Nuclear Po~er Cog). (Vermont Yankee Station),
CLI-74-40, 8 AEC 809, 881-14 (1974), that satisfaction of the criteria does not preclude the use of inconsistent assump-.
. tions about ECCS failure for other purposes.
L~ ~
Offshore argues that itis inequitable for the Commission
= to consider the environmental consequences of a Class 9
accident at an FNP when itdoes not consider such consequen-ces
.vith respect to land-based reactors. It asserts that the probability ofa Class 9 accident is the same foran FNP as fora land-based reactor, and therefore since consideration ofClass 9 accidents for land-based reactors is proscribed solely on the basis of probability,'uch consideration should also be pro-'cribed for FNPs. For the reasons discussed above, we believe
'~Wc nM not and do not address the correctness of'he Board's decision on that intcsprctation of the Annex.
that such consideration is now required in this case. Our
@mt'f review in this proceeding was linuted to the narrow question certified to us by the Appeal Board and itis neither necessary"
- nor appropriate for us. to employ this particular adjudicatory proceeding to resolve the generi issue of consideration of Class 9 accidents at land-based reactors. Such a generic action is more properly. aad eFectively done through rulemahng proceaHags ia.which all interested persons may participate.
Therefore; we are aot today expressing any views oa the
~ question oF environmental consideration of Class 9 accidents at land-oased reactors which, as the Board noted, present risks differe~ in kind aad perhaps in magnitude from those risks presented by FiiP. See 8 NRC at 218-19. However, we are concerned about this'uestion and intend to complete the rulemaMg began by the Annex and to re-examine Commission policy ia this area To aid ia that re-examination we ask our staff to:
1.
Provide us with its recommendations on how the interim @cdance ofthe Annex might be modified, on aa interim basis and until the rulemakiagan this subject is completed, to reflect developments since 1971 and to accord more fullywith
'urrent staff policy in this area; and 4-
~
~ ~.i 2.
In the interim, pending completion ofthe 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.
"%e are not compelled to treat Class 9 accidents in precisely the same
, fashion in the floating plant application as we treat such accidents in connecnon withconsideration of applications forland-based plants. Ofishore's equal treatment argutnent applies onlyto parties similarlysituated. Offshore's.
reactors Wi be. afloat ua!ike any other elecaAc power reactor we have ever licensed. Bur'cf. iN.S. Savannah, 2 AEC 416 (1964);
1 AEC 815 (1961).
Their unique siting r~s a host of issues. ofwhich the Class 9 issue is only one, which clearlyjustifyour treating Ot'fshore's application differently than we treat an ordinary application. Therefore, our obligation, which we have fultilled,is to treat Offshore in a fair and rational manner, but not necessarily in the sane manner we treat applications which belong in different categories.
The question certified to us in ALAB-500 is therefore answered "yes" and this matter is remanded to the Licensing
. Board for further proceedings consistent with this opinion.
1 It is so ORDERED.
For the Commission.
/s/ Samuel J. Chilk SAivIUELJ. CHILK Secretary of the Commission Dated at Washington, DC, this 14th day ofSeptember 1979.
(seal)
OFFICE OF THE SECRETARY UNITED STATES NUCLEARREGULATORY COivQvGSSION WASHINGTON, D.C. 20555
'eptember 14, 1979 MEMORANDUMFOR:
Lee V. Gossick, Executive Director for Operations F ROTI:
Samuel J. Chilk, Secretary
'SUBJECT SECY-78-137-ASSESSiiEliT OF RELATIVE DIFFERENCES IN CLASS 9 ACCIDENTRISKS IN EVALUATIONSOF ALTERNATIVESTO SITES WITH HIGH POPULATION DENSITIES The staH'is requested to discuss with'the Commissioners how they intend to define Class 9 and design basis accidents, how these accidetits will be included in reviews (and possibly re-reviews for existing plants), and how siting should be revised in lightofThree Mile Island.
The staff should provide an outline of its approach within 30 days, and then provide the Commission a status report at the end of60 days.
Commissioner Kennedy's additional comments are attached.
Attacn ment:
As stated
UNITED STATES OF AMERXCA NUCLEAR REGULATORY'COMMXSSION BEFORE THE ATOMIC SAFETY
& LICENSING APPEAL BOARD In the Matter of:
FLORIDA POWER
& LIGHT COMPANY
-(St. Lucie Nuclear Power Plant, Unit No.
2)
JAt< 1'7 iSgg
)
)
)
Docket No. 50-389 '.
)
)
)
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'n opposition to the motion.
The motion appears to be based upon the Xntervenor's view of the obligations which the Nuclear Regulatory Commission imposed upon itself as a necessary consequence of the measures it 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 of 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 i;s attached as an "Addendum" to the motion and we cite it here as a."
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 particular 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.
Therefore, we are not today expressing any views on the question of environmental consideration 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 policy in this area.
To aid in that re-examination we ask our staff to:
1.
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.
In 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:
i ~
3 2.
Since the Commission has now abandoned any generic prohibition against consideration of class 9 accidents, it 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.
(Notion, p. 3; emphasis supplied)
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:
'hich 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' 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 (Idotion, pp. 1-2)
The motion also requests that, the Appeal Board direct that a hearing be held, preceded by prehearing I
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 above are suggested in the motion.
One would be to stay W
I'
"completion of these proceedings until the Commission has received and acted upon" the interim modifications referred to in the PNP 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 p'rocedures for'he review of such Staff determinations and how the ZNP direction relating to specific proceedings "is to 'be imple-mented with respect to pending proceedings."
(Motion, p. 2; see also p.
4)
PPL submits that the. motion should be denied in its entirety.
We 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 PNP proceeding.
In addition, the Class 9 issue has bee'n finally F
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 remedy.
5 1.
The histor and status of this roceedin The construction permit for St. Lucie Unit No..2 was issued on I
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'hich authorized the issuance of a limited work authorization to FPL.
1 NRC 101 (February 28, 1975),
as supplemented.l NRC 463 (April 25, 1975).
This was affirmed in part and reversed (with respect to the consideration of alternative sites) in part by the Appeal Board in ALAB-335, 3 NRC 830'June 29, 1976);
and the Intervenors 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
'I 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 g 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/
Thereafte'r, on Nay 12, 1977, the Court of Appeals dis-solved the stay of construction it had..'ssued on October 21,
- 1976, and directed that the. appeal in No.
76-1709 no longi r be held in abeyance.
1
but their petition was denied when the time for review by, the Commission expired on December 25, 1977.
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 Supreme Court, 100 S.Ct.
55, and a petition. for rehearing was denied on November 26, 1979.
48 U.S.L.W. 3357 (Novem-ber 27, 1979).
The "Class 9" issue was fully litigated and finally decided in the'ourse of the proceedings described above.
On June 5, 1974, while prehearing procedures were being conducted by the Licensing.Board, the Intervenors filed a'proposed refined s tatement of mat ters in controversy, "
contending, among other things, that FPL'ad 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'ppeals 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 sich purposes as application of doctrines of res judicata, collatesal
- 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 joint 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.
FPL concurr'ed in that view, but. Inter-venors replied that:
6/
"Applicant's 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 S'tud Grou
- v. Atomic Ener Commission (D.C. Cir., No. 73-2266, November ll, 1976),
vacated on other h
7/
"Response of Applicant to Stipulation and Joint Motion,"
June 28,
- 1974, p; 15.
having read the Shoreham decision I;they] respectfully take exception to that, holding in that the argument supporting the decision does not logically uphold the result.S/.
Nevertheless, in its "Prehearing Conference Order I3," 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 117I 124 125'he Intervenors excepted to this ruling 9/
and briefed the exception, but this Board affirmed.
ALAB-
- 335, 3
NRC 830, S41 (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-tion 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, 1978, pp.
3I 14-19; "Petitioners Reply Brief to Respondents, U. S.
Nuclear Regulatory Commission and United States of America,"
July 24,
- 1978, pp. 2-5.
ll/
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 a 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 sponte'asserted and retained jurisdiction over one issue, steam generator tube integrity.
6 NRC at
'I 544-546.
It later amended.ALAB-435 to cover matters relating
~14 to grid stability, and on April ll, 1978, the Commission ll/
See Brief for "Respondents United States Nuclear Regula-tory Commission and the United States of America" in Nos.
76-1709 and 78-1149, pp..l, 3-4, 7-9.
12/
See Intervenors "Brief.on Partial Initial Decision,"
- p. 2; Government Brief, p. 1; and FPL's Brief, p. l.
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 Re ulator Commission et al.,
Supreme Court of the United
- States, October. Term,
- 1978, No. 78-1652.
14/
See Appeal Board order issued in this proceeding on October 28, 1977.
10 itself directed that the recoids 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 Com an et al:
(South Texas Project Unit Nos.
1 and 2), ALAB-381, 5 NRC 582; 590-591 (1977);
Washin ton Public Power Su 1
S stem (WPPSS Nuclear Project Nos.
3 and 5), ALAB-501, 8
NRC 381 (1978); Public Service Com an of Indiana, Inc.
(Marble 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'cheme 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:
11 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 proceeding (i.e.,
one of the types of p'o'-"
'eedings 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.
5 2342, which applies only eo "final orders."
The South Texas, NPPSS and Marble Hill decisions, demonstrate that if jurisdiction over the grid stability and radon issues had, 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 Harn shire-(Seabro'ok 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 fhad] attached to the resolution of the question in 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 tnat 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
~Com 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 issue, 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 authority over the grid stability and radon issues does not modify this result.
The motion totally ignores.the line of authority just discussed.
Xt argues that, the Appeal Board should exercise'urisdiction over the Class 9 issue simply "fb]ecause the order was entered prior to 'completion of these proceedings citing Philadel hia Electric Com an et al.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-480, 7 NRC 796 (1978) as authority.
(Notion, 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 P
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 onte issues which were neither pre-sented to, nor considered by the licensing board."
ALAB-551 r
~su ra, 9 IIBC 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 Commissi;on'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 reg'ulations, 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 (Floating 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 Com an 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.
{~su ra, 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'ontrary, 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.
15 reserved to itself the right to decide whether such matters are to be considered in any given case until it adopts a new 17/
general policy."
Ibid.
Intervenors, 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 which 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."
(Notion, 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 Fox,. 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 17/
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 Com an (Douglas Point Nuclear Generate.ng
- Station, Units. 1 and 2), ALAB-218, 8 AEC 79'4 (1974)
16 from the policy. It would be an absurdity to limit the Staff's 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'om-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 to make a recommendation'o 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 o;=. 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 g 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."
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
'ank Building Miami., FL 33131 Telephone:
(305) 577-2800
=Attorneys for Florida Power Light Company Dated:
January 16, 1980
p p E N D
X X
FOR THE DISTRICT OF COLUMBIA CIRCUIT NO. 76-1709 Hartin Harold Hodder, et al., Petitioners September
- Term, 1978 vo U.S. Nuclear Regulatory COImIIission and United States of America, Respondents Florida Power
& Light Company, Intervenoxs
~ linn@)s OPC6 O!"~~<;;,',~0'h
~ I rr"
(,r~
)yg y5$79
)gHER
~GP PFl And Consolidated Case NO.>>78-1149 BEFORE:
HcGowan and ftilkey, Circuit Judges; Flannexy+,
- 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 sugjestion fox rehearing en banc, time having expired, no opposition having been filed thereto, and it appearing that petitioners'etition for rehearing and/or suggestion'for rehearing en banc is lodged with the Clerk's Office, it is ORDERED, by the Court, that 'the motion of petitioners Hoddex, et 'al.. for leave is granted and the Clerk is directed to file petitioners'odged petition and/or suggestion and to enter same on the docket.
Per Curiam FOR THE COURT:
GEORGE A
IISHER Clerk
- Sitting by designa'tion pursuant to Title 28 U.S.C.
5 292(a).
L3C ~ Rl~~ 8 (f) r J s (wc 4'~>> l>4
'~W <r4k v FOR THE DISTRICT OF COLUM8IA Q
/"
~.I."I I
)
5
~ FE Vh 0 I, g oQ 4+lpf~
l>
CIRCUIT 76-1709 Mart.'n Harold Hodder, et al., Petitioners 5% ~
~ >>GL ~ 5 Vr>>R I ClPPeiop L oy 78 V ~
U.S. Nuclear Regulatory Commission and United States
.of 'Am rica, Respondents Florida Power
& Li ht Company, Intervenor Uoiied States Court of llppaa)s
[or the District ci Celumhia Circ.it
";Illus Dr-C25 '1978 78-1149 Martin Harold Hoddex, et al., Petitioners GL=.QRG= /'. RSHEP>
O'RI Vo U.S. Nuclear Regulatory Commission and United States.of America, Respondents Florida Power and Light Co., Intervenor Pi.TITIONS FOR REVIEH OF ORDERS OF THE NUCLEAR REGULATORY COx&1ISSION Before:
McGdNAN and h'.ILEEY, Circuit Judges, and FLRlNERY,-" United States District Judge for the District of Columbia JUDGMENT These causes came-on to be heard on petitions for. review of orders of the Nuclear Regulatory Commission and were argued by counsel.
On consideration of tire foregoing, it is ORDERED AND ADJUDGED by this Court, that the oxders of the Nuclear Regulatory Co"~ssion und'er review herein are hereby affirmed, for the xeasons set forth in the attached memorandum.
g
~
1i'-
~ p ~vs af T.ez'.
I cr.-'.,"avor o~'" of t,mme.
Per Curiam For the Court George >. Fisher I
Clerk
<Sitting by designation pursuant to 28 U.S.C.
5292(a)
~
? L<> iORANDUH Petit:oners seek review of two decisions of the Nuclear Regulatory Commission authorizing intervenor Florida Power and Light Company to construct an 850 megawatt nuclear poorer reactor at Hutchinson Island, Florida.
Xn Ho. 76-1709, petitioners challeng an NRC Atomic Safety and Licensing Appeal Board deci-sion affirm'ng a decision of the Atomic Safety and Licensing Board permitting limited construction work at. the site over petitioners'bjections.
that population density and distribu-tion were not in accordance with the HRC's own regulations, and that the NRC's failure to examine the environmental effects of I
major nuc'lear accidents constituted a violation of the National Environmental Policy Act of 1969, 42 U.S.C.
5 4321, et seq.
(1976).
Xn No. 78-1149, challenge is brought to an Appeal Board decision that the HRC's examination and consideration of alternative sites for the proposed project complied with NEPA.
E Petitioners'laim on the regulations issue is that Hutch-inson Island itself should be considered a "population center" within the meaning of 10 C.F.R. part 100.
Ne disagree.
The no-tion of a population "center" implies some centralized grouping or concentration of residents, not the type of dispersed populace as is present on Hutchinson Island.
See New En land Coalition on Nuclear Pollution v. United States Nuclear Regulatory Co..~iis-
- sion, Nos.
77-1219, et al.,'lip op. at 7 (1st Cir., 'August 22, 1978).
petitioners'laim on the accidents issue'has been fore-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 "Class 9" accidents.
Carol'na Environmental Study Group v.
United States, 510 F.2d 796, 798-800 (D.C. Cir. 1975). It is true that Carolina was decided prior to the publication in final draft of the Reactor Safety Study, NASH-1400 (1975), that found.
a probability of Class 9 accidents significantly greater than had been indicated bj~ the previous study, NASH-740 (1957).
- Carolina, however, has been reaffirmed by decisions of this count subsequent to the publication of the 1975 study.
~Llo d Harbor Study Group, Inc. v.
NRC, 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 rounds sub nom. Vermont Yankee Nuclear Power Corp.
v.
- NPDC, 435 U.S.
519 (1978).
These decisions accord with the reasoned and.consistent view of the NRC.. Lon Island Li htin Co.
(Shoreham Nuclear Power Station),
ALAS-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 Li ht and Power Co.
(St. Lucie Nuclear Power Project.
Unit No. 2),
5 NRC 1038, 1050 (1977).
Ne af"irm this conclusionI
finding it supported by substantial evidence in the record taken as a whole.
See Universal Camera Corp. v. NLRB, 34 0 U.S.
474 (1951).
~
~
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY, COMMXSSION BEFORE THE ATOMIC SAFETY &'ICENSING APPEAL BOARD In the Matter of:
FLORIDA POWER
& LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit No.
2}
)
)
)
Docket No. 50-389
)
)
)
CERTXFXCATE OF SERVICE I HEREBY CERTIFY that true and correct copies =of "ZPL's
Response
to Motion Concerning Class 9 Accidents," captioned in the above matter, together with the Appendix thereto, were served, on the following by'eposit in the United States mail, first class, properly stamped and addressed, on the date shown below:
Mr. C.
R. Stephens, Supervisor Docketing and Service Section Office of the Secretary of the Commission Nuclear Regulatory Commission Washington, DC 20555 Michael C. Farrar, Esq.
Chairman Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission Washington, DC 20555 Dr.
W.
Reed Johnson Atomic Safety.& Licensing Appeal Board, r
Nuclear Regulatory Commission Washington, DC 20555 Richard S.
- Salzman, Esq.
Atomic Safety
& Licensing Appeal Board Nuclear Regulatory Commission
'ashington, DC 20555 Alan S. Rosenthal, Esp.
Chairman Atomic Safety
& Licensing Appeal Panel Nuclear Regulatory Commission Washington, DC 20555 Edward Luton, Esp.
Chairman Atomic Safety
& Licensing Board Panel Nuclear Regulatory Commission Washington, DC 20555
Michael Glaser, Esq.
Alternate Chairman Atomic Safety
& Licensing Board 1150 17th Street, NW Washington, DC 20036 Dr. Marvin M. Mann Technical Advisor Atomic Safety 6 Licensing Board Nuclear Regulatory Commission Washington, DC 20555 Dr. David L. Hetrick Professor of Nuclear Engineering University of Arizona
- Tucson, AZ 85721 Dr. Frank F. Hooper Chairman Resource Ecology Program School of Natural Resources University of Michigan Ann Arbor, MI 48104 Martin Harold Hodder,. Esp.
1130 NE 86 Street Miami, FL 33138 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, DC 20555 William J. Olmstead, Esq..
Nuclear Regulatory Commission Washington, DC
-20555
'ocal Public Document Room Indian River Junior College Library 3209 Virginia Avenue Ft. Pierce, FL 33450 Norman A. Coll,. Esp.
- Steel, Hector
& Davis 1400 Southeast First. National Bank Building Miami, FL 33131 Harold F. Reis Lowenstein,
- Newman, Reis, Axelrad a Toll 1025 Connecticut
- Avenue, NW Washington, DC 20036 (202) 862-8400 January 16, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AHD LICENSING APPEAL BOARD In the Matter of FLORIDA POl<ER 5 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 2)
)
)
)
Docket Ho. 50-389 HRC STAFF
RESPONSE
TO INTERVENORS'OTION TO CONSIDER CLASS 9 ACCIDENTS IHTRODUCTION 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-Q ment.
In the alternative, Intervenors ask:
that further proceedings be stayed until the NRC Staff makes the recommendations called for by the Com'mission 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 parties at the recent hearings before the Appeal Board in Coral Gables,
- Florida, on December 13, 1979.
(Tr. 398)
The Appeal Board requested that the Applicant and the NRC 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 Commission (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
al 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 g2 Florida Power and Li ht Com n
(St. Lucie Unit 2), ALAB-435, 6 NRC
I, qfl
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 Ceenission's Offshore Power S stems decision was rendered prior to the relinquishment of all jurisdiction by this Board,
"...it is appropriate for this Appeal Board 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 "Lwjhere 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 di rective contained in 43 Fed.
Reg.
15613 (April 14, 1978).
D4 ALAB-537, 9 NRC 407 (1979).
Q5 Motion p.
3 citing Philadel hia Electric Com an, et al.
(Peach Bottom Units 2 and 3, ALAB-480, 7 NRC 796 1978).
Q6 Peach
- Bottom,
~su rap.
799,.
radon releases."~
- Thus, the Commission specifically gave jurisdiction over
>>7~
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 Cormission'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 NRC 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 HRC, Slip op. p.
31 (1979).
to consider Class 9 contentions~
and which state the standards for reopening 101 records for receipt of additional contentions.
The applicab1e case law governing Intervenors'otion is set forth in Pob1ic Service Com an of New 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 and the decision in this proceeding is final except for the limited issues of grid stability and Table S-3 (radon) over which jurisdic-tion has been retained.
1 ee e.g.,
Consumers 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
19 3; on Islan 1
tsn Co.
(Shoreham),
ALAB-156, 6 AEC 831, 835 1973);
and Penns lvania Power 8 Li ht Co.
(Susquehanna Units 1 and 2), LBP-79-29, 10 NRC, October 19, 1979).
~11 8
NRC 694, 695; accord, Washin ton Public Power Su 1
S stem (WPPSS Projects 3 and 5~tlKB-50, 8 NRC 3 1
1978; Pu lic 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 NRC 582 1977 12/
Hodder v.
- NRC, 589 F.2d 1115 (D.C. Cir. 1978), cert denied U.S.
100 S.ct.
55 (1979).
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-venors suggest that this Board either stay further proceedings pending consideration of NRC Staff recommendations for interim modifications to the Commission's Class 9 policy which were called for in the Offshore Power
~Sstems decision or in the alternative certify the question of the appii-cability of the Commissions 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, 9
NR 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.
The 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.
17/
2.
Other Avenues of Relief.
The usual response to a party seeking to reopen a record in a docket where a
final decision has been rendered and appellate jurisdiction terminated is that the party has recourse to the provisions of 10 CFR 5 2.206.
/
Those
~16 44 Fed.
Reg.
58559 (October 10, 1979).
I7/
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. Lucia pursuant to 10 CFR 6 ~786 d.
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 NRC 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. Lucie, no final decision has been rendered on the merits.
In Black Fox, tFFerefore, 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.
~18 See ~e...
Marble Hill, ~su ra, p.
262.
provisions p rmit a petition to be filed with the Director of Nuclear 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 an effective opportunity to argue their point of view on Class 9 accidents to the Commission.
3.
The tlerits of Intervenors'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 i di d i Midi d
d~Eh,~.
i h
~19
- See, in this regard, the reminder in ALAB-537, su ra, p.
411 where this Board noted the further opportunity presented by t e filing of an OL application.
NRC 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, Intewenors'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 pr oceeding.
It is the NRC Staff's position that the Commission's Offshore Power 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.
While 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.
First, 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 Coranission 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 (TMI 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 this Board pursuant to the Offshore Power
~Sstems direction.
CONCLUSION For the foregoing reasons, the NRC Staff believes the Appeal Board lacks jurisdiction to gr ant 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 participation in the operating license proceeding when it is instituted.
Finally, the merits of Class 9 accidents should not be addressed in this proceeding under existing Commissions rules and policy.
Respectfully submitted, William J.
1mstead 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 COhMISSION 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 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE-TO INTERVENORS'OTION TO CONSIDER CLASS 9 ACCIDENTS", dated'anuary 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.
W.
Reed Johnson Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.
C.
20555
- 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'r.
Frank Hooper Resource Ecology Program School of Natural Resources University of Michigan Ann Arbor, Michigan 48104 Harold F. Reis, Esq.
Lowenstein, Ne>oman, Reis 8 Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.
C.
20036 Norman A. Coll, Esq.
- Steel, Hector 8 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 Washington, D.
C.
20555 William D. Paton Counsel for NRC Staff
UNITED'TATES OF AMERICA NUCLEA'R REGULATORY COMMISSION Before the
'TOMIC SAFETY AND LICENSING BOARD In the matter of
)
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 ', motion.
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
r 1.
Public Service Co. of Oklahoma (Black Fox Station, Units 1
and 2), ALAB-573, NRC, slip op. pp.
29-32 (1979).
C 2.
NRC Staff, Response to Intervenors Motion to Consider Class 9 Accidents',
pp.
9-10 [cited as "Staff Resp.".]
resolution more urgent here 'than in Black 'Fox.
In addition, inteivenors sugges't the Board should grant the 'first alterna-tive 'relief requested and should also certify the questions 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
~S stems.
C Jurisdiction J
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 thy Board's role was limited to assuring that the staff followed the mandate to advise the Com-e mission in a timely fashion.
By their j'urisdictional 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 50-437, NRC (1979)
(reproduced as an Addendum to intervenors'motion).
pioceedings... Intervenors submit that the jur9.sdictional'rgu-ments not only.fail to'eed the teaching in Bl'ack Fox,'nt also do not accurately reflect the 'jurisdictional principles es'tab-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 P
or the Appeal Boards with respect to environmental 'cons'ideration 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'o 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. 9-10).
n
~
its, role 'was limited to assuring that the 'staff 's, advice was promptly submitted to the '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 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 question 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 consideration should be given in any individual pending case.'n reaching this decision in pending cases',
the Commission may well wish to consider whether'he doctrine of finality or the stage which a proceed-ing has reached constitute appropriate bases. for its declining to order consideration in an otherwise proper pending case.
But the Appeal Board must recognize that a decision to deny consideiation based on finality grounds is an exercise of dis-cretion.
'By its Black Fox decision the Board has recognized that that, discretion has been 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 opportunity to decide an issue the Commission-'has reserved to itself.
B.
Of Mandato and Discretionar Jurisdictional Princi les.
The analyses set out. in the applicant's and the staff's responses to'"the motion share two fallacies.
Each treats Black e"
~
~
~
~
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 ki'nds of jurisdictional principles,'.those which are mandatory and those which involve the exercise 'of discretion.
ceedings are over, the 'procee'dings 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 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 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.
The Board has had occasion to illustrate the application of these mandatory principles in recent decisions.
Thus, in South
- 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 L~ihtin
& Power Co.
(South'exas, Units l and 2),
ALAB-381, 5
NRC 582 (1977).
from the original decision and no issues remained outstanding in the 'construction pe'r'mit procee'dings.
The 'Appeal Board ruled that the proceedings were 'over and that there had been no basis for the Licensing Board to exercise jurisdiction over the issues raised by the motion.
(See also 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 9
not complete.
1 1
the duty to decide applications properly before them and the 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'tself 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 beforeit,'he
'Appeal Board has recently been confronted with 'a numbex'f cases'hich posed ser'ious questions with respect 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 unclear, 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'onsidered by nor presented to the Licensing Board.
Apax't from intervenors'otion here and the motion in Black Fox, intervenors -suggest the Commission s directive in Offshore Power
~S stems presents an issue the Appeal Board should properly raise sua
~s onte in all pending proceedings to assure that the Commission is promptly advised in each case.
At the othex 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 l and 2),
. ALAB-551, 9 NRC,
- 704, 707 (1979) (citing Florida Power
& Liciht Co.
{St. Lucie Nuclear Power Plant, Unit Ho. 2),
ALAB-435', 6 NRC 541, 544-46 (1977).
to litigate or relitigate issues endlessly, in the interest of establishing an order'ly 'proces's for res'olving licen'sing 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 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 emission issue.
Similarly, in 1
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
~h'(
a and 2), ALAB-513, 8
NRC 694 (1978).
12 emission issue before 'it.
Both those decisions,,of
- course, involved an attempt to reo'pen a fully litigated factua'1 question based upon an alleged'hange
'in the factual circumstances.
- Here, the Appeal Board has before it a motion aski:ng to address a
legal question which arose 'solely as 5 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 intervenors.
Xntervenors 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 ~Bstems.
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
HRC 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.)
s's 10
The Suestion posed by the. motion her'e
{and in Black Pox) raises'differ'ent issues' whether'he Commission's 1979 directive applies to these proceedings and, if so, how it should be implemented.
With respect to these
- issues, the teaching of Black Pox 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
'3 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 Pox decision.
"It is the NRC Staff 's position the Commission' Offshore Power ~Sstem decision does not require the Staff to,info'rm the Commission of individual cases in which the staff does not b'elieve Class 9 accidents should be considered."
(Staff Resp.,
p 9; emphasis added.)
Thus, according to the staff, the 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 Xsland.
Intervenors find this construction of Offshore and Black Fox difficult to accept.
cause proceeding under 10 CFR 5 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 sugges'tions 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-I trine of finality" to deny relief under the Commission's decision in Northern Xndiana'ubl'ic Service Co.
(Bailly 14a Generating Station, Nuclear 1), Dkt. No. 50-367, NRC (1978).
Although the case could be distinguished, it is clear that the same arguments the applicant and staff urge here to induce the Appeal Board decline to address the me'rits 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'nd L'i't Co.
(Susquehenna Steam Electric Station, Units 1 and 2), LPB-79-29, 10 NRC (1979).
14a.
CCH Nuclear Reg. Reptr, 1[ 30,287
~
12
unwarranted inter'fer'ence with the 'adjudicative '.functions of the Licensing and Appeal Boards.
Thus,.the merits need never 15 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 PPL applies for an operating license and in the rulemaki'ng 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 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 fuxther investments in the project.
In either proceedings the environmental issues will be wholly different from those posed here.
The Merits Although the Appeal Board hae determined 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 been 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).
13
of the question posed may be a factor in deciding whether the staff should be 'directed to.submit its, views to the 'Commis'sion.
before these proceedings are 'completed.
The nature of. the I
application here and the staff's own admissions clearly show the question here is critical.
Liquid pathway inter'diction 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 consideration might compel re-considhration of the decision to permit construction of a plant on a narra barrier island adjacent to a major international liquid pathway, they also remgnize such consideration might only result in a conclusion that design changes were needed to strengthen the barriers between the "care" of the plant and the liquid pathway.
(For a 'literate description of the pre~ary planning and design process undertaken when floating poorer plants were first conceived, I
- Mophss, G~ivis Gcod W~wi ht, pp.76-118 (Nss York: 1979).)
For this reason alone, intervenors submit the question should be reviewed and decided before further construction is completed, which can only
='ake subsequ nt mx3ifications 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 connection with the St. Lucie 'site.
Such a proposal seives" no one's inter'est and hardly reflects an.
orderly administrative process for resolving a critical and disputed issue (nor does it evidence particular zeal on the part, of the staff).
H'he two questions posed by this motion can perhaps be'raphically 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 H
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's a second axis a substantive axis.
The Commission has now found that the consequences of class 9
accidents should be considered in connection with floating power plants" and has indicated it intends to reconsider its 17.
Xntervenors hope all might also recognize that the lateness'with which the opportunity to consider this 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 plants at one end and land based plants proposed to be located away from major water-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 core 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 before 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 considered 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 secee 16
such a plant should be 'construct'ed at that location.
Surely the 'exper'ience 'at Th'ree Mile Island and the decision on Offshore suffice 'to make 'this 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-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 appropria'te 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
~
'all somewhere between:
cost-benefit analysis may dictate 19.
- See, NRC-Staff's Brief in Support of Affirmative Finding on Certified Question, Offshore Power
~S stems, Docket No.
STN 50-437) at pp. 44-45.
17-
additional prec'autions'and differ'ent siting criter'ia.
But whatev'er'he 'conclusion,
',there 'can be no justification for the Commission's not bei:ng pres'ented 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:
1.
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
questions of the 'standards to. be applied by the staff in determining in which '"individual cases'...
the environmental consequences of Class 9 accidents should be 'considered,"
the procedures by which such staff determinations are,to be re-
- viewed, and how the Commission's order in Offshore is to be implemented.
Respectfully submitted, lr')Cr I+~M 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
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Michael C. Farrar, Chairman Richard S.
Salzman Dr.
W.
Reed Johnson
~
I
\\
In the Matter of FLORIDA POWER 6 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit No.
2)
)
)
)
)
Docket No. 50-389
)
)
)
)
Messrs.
Terren'ce J.
Anderson and'artin'arold'odder, Mxamz., Florida, for the 'interve'nors.
Messrs. Ha'roid'. 'Re'is, Washington, D. C., and Norman A. Coll, Ma.am', Florida, for the 'app'1'ica'nt.
Mr. William D." Paton for the Nuclear Regulatory Commzssxon staff.
MEMORANDUM AND 'ORDER February 14, 1980 (ALAB-579 )
On December 12; 1979, the intervenors once again moved
1/
for consideration of "Class 9" accidents in this proceeding.
"The term 'Class 9 accidents'tems from a 1971 AEC proposal to place nuclear power plant accidents in nine categories to take account of such accidents in preparing environmental impact statements.
That pro-
'osal was put forward for comment in a proposed
'An-nex'o. the Commission's regulations implementing NEPA.
36 Fed.
Reg.
22851-52 (December 1, 1971).
The nine categories in that 'Annex'ere listed in in-creasing order of severity.
'Class 9'ccidents involve sequences of postulated successive failure more severe than those postulated for the design basis of protective systems and engineered safety features.
(FOOTNOTE CONTINUED ON. NEXT PAGE)
Their request was premised on the Commission's recent 2/
decision in Offshore Power, which they construe as modifying a previous generic prohibition against con-sidering the consequences of Class 9 events in individual licensing proceedings.
The motion must fail.
1.
The Licensing Board authorized issuance of a permit to construct St. Lucie Unit 2 in 1977, an action
'/
that we approved later that year.
The Commission's elec-tion not to review our decision made it, the agency's final 4/
'" 5/
action and it has now been upheld on judicial review.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The Annex concluded.that, although the consequences of Class 9 accidents might be severe, the likelihood of such an accident was so small that nuclear power plants need not be designed to mitigate their con-sequences,
- and, as a result, discussion of such accidents in applicants'nvironmental Reports or in staff's environmental. impact statements was not required."
Offshore Power'
'ste'ms (Floating Nuclear Plants),
CLI,
10 NRC ','slip opinion pp. 2-3)
(September 14, 1979)(footnote omitted).
2/
Id.
3/
LBP-77-27, 5
NRC 1038,affirmed, ALAB-435, 6
NRC 541; bnt see text accompanying in. 7,in'tra.
4/
. See 10 C.F.R.
52.785(c) 5/
Hodder v.
- NRC, 589 F.2d 1115 (D.C. Cir. 1978)(decision without opxnxon),ce'rtiora'rid'en'ied,
U.S.'
62 L.Ed;2d 36 (1979).
There remain pending in this case,
- however, two limited matters for our resolution.
These are (1) the environmental consequences of radon emissions during the mining and milling of uranium to fuel the plant and (2) the stability of the applicant's electrical grid.
The 6/
Commission instructed us to hear the former; we expressly retained jurisdiction to consider the latter when we other-7/
wise affirmed the decision below.
Intervenors filed the motion now before us in open hearing while we were taking evidence on the second, question.
The applicant and the staff remind us of"intervenors'revious unsuccessful attempt to inject the "Class 9" issue into this case and point out that rejection of this conten-8/
tion was expressly upheld on judicial review.
Those parties P
add that we have no authority to admit the contention in any event.
Pending completion of a rulemaking proceeding contem-plating the establishment of a new general policy on this 6/
43 Fed.
Reg.
15613;. 15616- (April 14, 1978).
7/
Order of October 28, 1977, modifying ALAB-435.
8/
The court of appeals'emorandum order to that effect is unpublished.
.It is, however, reproduced in the appendix to applicant's brief.
- subject, the Commission has reserved to itself the right.
r to decide whether Class 9 accidents may be considered in
'/
proceedings involving land-based plants.
Intervenors concede that only the Commission can say whether Class 9 questions are to be taken up.
They never-theless assert that'e retain sufficient "jurisdiction" to trigger that determination either by (1) instructing the staff to advise the Commission whether the issue should be 10/
considered or (2) "certifying" that question directly to 11/
the Commission.
They ask that we adopt one course or the other and stay completion of these proceedings until the 12/
Commission acts.
9/
10/
ll/
12/
Offshore Power, supra fn-. 1, 10: NRC at';
(slip opinion Fox Station, Unats 1
& 2), ALAB-573, 10 NRC 'slip opinion at, 29-32) (December 7,
1979).
A procedure we adopted in Black Fox, ALAB-573 '(supra fn. 9),
10 NRC at (slip opxnzon at 32).
See 10 C.F.R.
52.785(d).
The relief sought by intervenors.'mended prayer is an order from us:
"1.
staying completion of these proceedings until the Commission has received and acted upon the staff's recommendations with respect to class 9 accident con-sideration at, the St. Lucie site or has adopted a new general policy; "2.
directing the staff to advise the Commission with-in 30 days of the reasons why it. believes the conse-quences 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 (FOOTNOTE, CONTINUED ON NEXT PAGE)
2.
Our action on the intervenors'otion is controlled by Public Service Co. of'ew Ham shire (Seabrook Station, Units 1
6 2), ALAB-513, 8
NRC 694 (1978).
In that case as in this one, a licensing board authorized a construction permit after deciding a contention adversely to an intervenor.
There as here, we approved the trial board's ruling and a court of appeals ultimately upheld the Commission's affirmance of 13/
our decision.
The Seabrook intervenors later sought on grounds of supervening developments to resurrect the issue previously interred by the board.
As do intervenors in this
- case, they argued that we were free to act because the exist-ence of discrete if unrelated issues still open before us meant that the proceeding was not final.
We squarely rejected that argument.
We held in Seabrook that after we had relin-quished jurisdiction over a cause except for limited purposesf 12/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
"3.
certifying to the Commission as major and novel the questions of the standards to be applied by the staff in determining in which. individual cases the environmental consequences of Class 9 accidents should be considered,'he procedures by which such staff determinations are to be reviewed, and how the Commission's order in Offshore is to be implemented.
13/
LBP-76-26, 3
NRC 857 (1976), aff'i'rmed, ALAB-422, 6
NRC 33 (1977), affirmed, CLI-78-1, 7
NRC 1, affirmed sub nom.
New En land Coalit'ion v.'RC, 582 F.2d 87 (1st Cz.r.
1978
4 where the appellate process was otherwise completed we could not admit new contentions unrelated to those purposes.
There must be an end to litigation sometime.
Save for the added factor that these intervenors have had a petition for certiorari denied as well, the case at 14/
bar is on all fours with Seabrook.
It therefore heralds the result we must reach.
In the absence of a rational and direct link to the limited matters over which we retain jurisdiction, we are without authority to co'nsider new or reopened issues at this stage of the proceeding.
- Accord, Vir inia Electric and Power Co.
(North Anna Station, Units.l a 2),
ALAB-551, 9
NRC 704,* 708-09 (1979).'e perceive no such relationship between the pending'radon and grid stability issues and the environmental consequences of Class 9 accidents.
We therefore may not accede to intervenors'equest to take'p that issue now.
This does not leave intervenors remediless.
The staff acknowledges in its brief (p.
- 8) that a Commission regulation, 10 C.F.R.
52.206, "permits a petition to be filed with the Director of Nuclear Reactor Regulation who has discretionary authority to grant the relief sought subject. to Commission Z.4/
And is distinguishable from Bl'a'ck Fox (on which inter-venors rely), where the licensing board proceeding was
.only half completed ALAB-.573, supra fn. 9, 10 BBC at (slip opin'ion at 32)'.
review."
- See,
.e'.g., Public Service Co. of Indiana (Marble.
Hill Station, Units 1
6 2), DD-'9-10, 10 NRC 129, 134 (1979).
We must leave intervenors to pursue that path.
Motion dismi'sse'd fo'r wa'nt'f 'ur'i's'di'ct'i;on; treating
" the submissions as a show cause petition and responses',
the papers are referred to'heDiiec't'o'r 'ou'cl'ear 'Rea'ctor 15/
Regulation for his considera't'i;on
'u'n'der
'1'0 C.F.R.52.'206.
16/
It is so ORDERED.
FOR THE APPEAL BOARD'.
J n Bp.shop Secre ry to the Appeal Board 15/
The Director.'would make the recommendation to the Commission on whether to hear Class 9 events even were we to direct "the staff" to do so.
We have no reason to believe that he will act either arbitrarily or tardily; we intimate no views on the appropriate course for him to take.
16/
The outcome of this matter to one side, we wish to acknowledge the receipt of particularly helpful and well-reasoned briefs from all parties.
0 egl I
r
(
1 H,