ML17272A734
| ML17272A734 | |
| Person / Time | |
|---|---|
| Site: | Columbia  |
| Issue date: | 11/14/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-571, NUDOCS 7912060059 | |
| Download: ML17272A734 (15) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman
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In the Matter of WASHINGTON PUBLIC POWER SUPPLY SYSTEM
.(WPPSS Nuclear Project No.
2)
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Docket No. 50-397 OL
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MEMORANDUM November 14, 1979 (ALAB-5 71)
On July ll, 1978, the Commission issued a notice of opportunity for hearing on the application of the Washington Public Power Supply System for a license to operate its
,WPPSS Nuclear Project No. 2, a boiling water reactor located on the Hanford Reservation in Benton County, Washington.
43 Fed.
Rece.
32338 (July 26, 1978).
Within the time speci-fied by the notice for doing so, a petition for leave to intervene was filed by Susan M. Garrett and Helen Vozenilek, on their own behalf and as representatives of the Hanford Conversion Project.
Subsequently, an amended petition was filed on the same basis. by Ms. Garrett and Creg Darby.
Still later, amendments to that petition were tendered.
2 On March 6, 1979, following a prehearing conference convened to consider the petition, the Licensing Board en-tered an order denying intervention.
LBP-79-7, 9
No appeal was taken from that order and accordhngly, on 1/
October 9, 1979, the Board issued a notice dismissing the proceeding.
A. It is readily apparent that there is no occasion to establish an appeal board to scrutinize the action taken by the Licensing Board.
The petitioners might have prose-cuted an appeal from the denial of intervention but elected not to do so.
Under settled practice, we do not review on our own initiative orders granting or denying interven-tion. If those affected do not deem themselves sufficiently aggrieved to appeal, there is no reason why we should concern ourselves with the matter. And, when the only intervention 2/
1/
As an exception to the general proscription against interlocutory appeals (see 10 CFR 2.730(f)),
10 CFR 2.714a authorizes an immediate appeal from, i;nter alia, "[a]n order wholly denying a petition ~or leave to intervene and/or request for a hearing".
The notice of appeal and supporting brief must be filed within ten days after service of the order-.
2/
By the same token, we will not normally review, in the absence of an appeal, alleged procedural irreg-ularities (Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), ALAB-231, 8 AEC 633, 634 (1974));
a licensing board holding that certain contentions (FOOTNOTE CONTINUED ON NEXT PAGE)
petition filed was denied, there was no need or authority to commence an adjudication of the merits of the operating li-cense application.3/
In short, in the absence of an appeal from the denial of intervention, the Licensing Board's course was mandated:
the termination of the proceeding without passing any judg-ment on the WPPSS application.
Whether that application should be granted, and if so on what terms or conditions, has now become a matter for determination outside of the adjudicatory process by the Director of Nuclear Reactor Regulation, applying the standards set forth in 10 CFR 50.57(a).4/
2/
3/
4/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) in an intervention petition are not to be admitted to the proceeding (Loui'si'ana'ower G Li ht Co.
(Waterford Steam Electric Station, Unit 3), ALAB-242' AEC 847/
848 (1974)); or the resolution of purely economic is-sues posed in an antitrust proceeding (id., ALAB-258, 1
NRC 45, 48 fn.
6 (1975)).
In other words, an appeal board's review sna
~s onte of licensing board action is confined to substantive issues of public health and safety or environmental impact.
In contrast, where a construction permit application is involved, adjudication is required whether or not there are successful petitions for intervention.
Section 50.57(a) requires a number of findings to be made prior to the issuance of an operating license; e.g., that there is "reasonable assurance" that "the activities authorized by the operating license can be conducted without endangering the health and safety of the public".
B.
The matter well might be left at that were it not for recent developments in the proceeding instituted some years ago with respect, to the Monticello-facility. ln 5/
an order entered on October 25,
- 1979, the Licensing Board dismissed that proceeding with the consent of all of the still remaining parties to it.
On October 29, an Appeal Board was established for the proceeding.
That Board promptly issued an order in which it announced its inten-tion to review the dismissal sua
~s once.
In the circum-
- stances, there is warrant for some explanation of the di-vergent treatment given the two dismissal orders.
That explanation is to be found in the disparate history of the WPPSS and Monticello proceedings, as well as in the marked difference in the circumstances of the dismissal orders entered below.
l.
As has been seen, the WPPSS proceeding never got beyond the stage of a petition for intervention; that that petition turned out to be unsuccessful provided all the justification required (or assigned) for the dismissal.
Not so in the case of Mo'nticello.
Since
- 1971, the Monticello facility has possessed a
provisional license allowing full-power operation.
See 5/
Northern States Power Co.
(Monticello Nuclear Gener-ate.ng Station, Unzt
, Docket No. 50-263.
4 AEC 496.
In May 1972, the Commission entered an order in which it (1) granted a request that a hearing be con-ducted under then Section E of Appendix D to 10 CFR Part 50 for the purpose of determining whether the license should be suspended, in whole'r in part, pending completion of the NEPA environmental review required by Section B of the Ap-pendix; and (2) directed the consolidation of that hearing with any hearing which might be held with regard to the is-suance of a full-term operating license.
4 AEC 830.
In December of that year, the Commission granted several inter-vention petitions filed in response to a notice of opportunity 6/
7/
8/
As applied to the period prior to January 19, 1975, the term "Commission" refers to our predecessor, the Atomic
" Energy Commission.
Filed by the Minnesota Environmental Control Citizen's Association (MECCA).
As revised in September 1971 to take into account Calvert Cliffs'oordinatin Committee v. AEC, 449 F.2d 1109 (1971), Appendix D constituted the Commission's "interim statement of general policy and procedure" in the implementation of NEPA.
See 36 Fed.
Reg.
18071 (September 9, 1971).
Section B was specifically con-cerned with the environmental review of nuclear power facilities, such as Monticello, which had been issued construction permits or operating'icenses between January 1,
1970 and September 9,
1971.
Since
- 1974, the "Licensing and Regulatory Policy and Procedures for Environmental Protection" have been set forth in 10 CFR Part 51.
See 39'ed.
Reg.
26279 (July 18, 1974).
for hearing in connection with the full-term operating li-cense application.
CLI-72-31, 5 AEC 25. Simultaneously, 9/
it issued a notice of hearing.
As later modified, the notice stated that the hearing would consider-'."(1)
- whether, considering those matters covered by Appendix D to 10 CFR Part 50, the provisional operating license should be con-tinued, modified, terminated or appropriately conditioned to protect environmental values, and (2) whether, in accord-ance with * *
- the Commission's
[environmental and safety]
regulations
- * *, a full-term operating license should is-sue".
See 37 Fed.
~Re 28554 (December 7, 1972);
38 Fed.
~Re 2489 (January 26, 1973).
10/
During the.ensuing years, the Monticello proceeding moved forward at a rather leisurely pace with evidentiary hearing sessions being conducted only twice (in November 1974 and May 1975).
In March 1978, the applicant, the staff, 9/
10/
As recited in the Commission's
- order, those inter-vention petitions had been filed by MECCA (see fn.
7, su ra),
two members of that organization in their xn z.vidual capacity, another individual, a state agency and a municipality.
The notice referred, specifically both to the Com-mission's environmental regulations and to 10 CFR
- 50. 57.
As previously noted (fn. 4,'su ra), sec-tion 50.57 is addressed to, inter alia, the health and safety aspects of reactor operate.on.
- Thus, under the terms of the notice, the hearing was to embrace both environmental and safety matters.
and the intervenor state agency filed a joint motion to terminate the proceeding, grounded upon that intervenor's withdrawal of its remaining contentions.
The remaining intervenors departed the scene three months later, 11/
leaving the proceeding uncontested.
And, because a hearing had been ordered in the first instance only because one had been requested, the Licensing Board became free to ter-12/
minate the proceeding unless it determined that "a serious
- safety, environmental, or common defense and security mat-ter" existed.
11/
12/
The intervenor municipality withdrew in 1976.
With regard to facilities subject to the provisions of Section B of Appendix D to 10 CFR Part 50, a
hearing in connection with the environmental review called for by that, Section was mandatory only where a construction permit was involved.
Zn circumstances where the facility had received an operating license between January 1, 1970, and September 9,
1971 (see fn.
8, su ra),
a hearing was held only if requested.
Absent suc a request, the AEC Director of Regulation was free to give effect to his own conclusions re-garding whether the license should be continued, modi-fied, terminated or appropriately conditioned to pro-tect environmental values.
See Section B.3 of Appen-dix D.
Needless to say, a hearing on the health and safety aspects of the application for a full-term operating license was likewise not mandatory but,
- rather, depended upon a successful petition for in-tervention and request for hearing being filed.
On October 13, 1978, the Board issued a memorandum and order in which it stated that its review of the record had surfaced only "one item of possible concern"; viz., the safety of continued operation of the facility pending full
--resolution of the problem of anticipated transients without scram (ATWS).
The parties were requested to respond in writing to certain questions posed by the Board with regard to that issue.
Both the staff and the applicant submitted responses, following which the former filed a renewed motion to ter-minate the proceeding.
After considering the responses, I
the Board entered the October 25, 1979 order which, as earlier noted, an appeal board will now review sua '~sonte.
In that order, the Board granted the joint motion to ter-
- minate, and then dismissed the proceeding.
In doing so, the Board made a number of substantive determinations on the ATWS issue -- culminating in its ultimate conclusion that "the Monticello plant can continue to operate with acceptably low risks from an ATWS pending implementation of whatever modifications eventually are required by Com-mission rule."
2.
In a nutshell,
- then, the dismissal of the Monti-cello proceeding (unlike that of the WPPSS proceeding) was
preceded not merely by the development of an evidentiary record on some matters but, more. importantly, by the Li-censing Board's rendition of affirmative findings and con-clusions on a s ecific issue relatin to the.safet of reactor o eration which it thou ht worth of its considera-tion.
And, it is equally manifest that the Board's ultimate decision to bring Monticello to a close rested upon those findings and conclusions.
Put another way, despite the fact that the withdrawal of the contentions of all of the inter-venors had left the proceeding uncontested in mid-1978, the
, Board had declined to act, upon the joint motion to terminate pending its receipt of responses to the questions posed by it to the staff and applicant.
Specifically, it withheld its grant of the motion..until after-"it had satisfied itself on the basis of those responses that, for the time being at least, the reactor "can continue to operate safely with acceptably low risks from an ATWS * * *."
In light of the express terms of 10 CFR 2.760a, it can be scarcely doubted that, given its obvious belief that the ATWS issue constituted "a serious safety * *
- matter," the Board was not merely authorized, but obligated, to pursue the course which it did.
13/
13/
An analogous approach by another licensing board re-cently received our approval.
See Carolina Power 6
Liciht Co.
(H.B. Robinson, Unit No. 2, ALAB-10 NRC (October 31, 1979} (slip opinion, pp. 4-5, 10).
In this regard, it is worthy of (FOOTNOTE CONTINUED ON NEXT PAGE)
10 Thus, whether the Monticello dismissal was right or wrong hinges upon the correctness or incorrectness of de-terminations made by the Board on a substantial issue thought by it to be important rather than (as the case in WPPSS) upon a mandatory application of the settled principle that, absent a successful petition for inter-vention and request for hearing, there is no adjudicatory consideration of ~an issue pertaining to the issuance of a facility operating license.
As sucp, that. dismissal called for the same examination by an appeal board as would be extended to any other final action by a licensing board similarly rooted in the consideration and disposition of safety or environmental questions.
The most cursory analysis suffices to dispel all residual doubt in that regard.
Had the ATWS issue been pressed before the Monticello Licensing Board by an inter-venor, the Board would have been obliged to determine it.
And, no matter whether reflected in an initial decision or in an order granting summary disposition under 10 CFR 2.749, 13/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) mention that the fact. that here the submissions of the staff and the applicant were sufficient to alleviate the Board's.concern does not mean that the resort to its Section 2.760a authority was improvident.
Whether a safety matter is "serious" within the meaning of that Section manifestly is not controlled by whatever ultimate decision may be reached after it receives full exploration.
that determination then would have been routinely reviewed by an appeal board -- on its own initiative were no appeal taken.
As it turned out, of course, it was the Board itself
.(and not an intervenor) which wished to pursue the issue.
But that did not perforce make it. or its resolution-any the less significant. Nor could its importance be
'l4/
said to have been diminished by the additional happenstance that, all of the intervenors having withdrawn from the pro-
- ceeding, the Board was no longer required to render an initial decision but, instead, could embody its conclusions in a document entitled "Order Dismissing Proceeding".
in-
- deed, any other conclusion would exalt form over substance.
I C.
What ale. of this comes down to is that the decision on whether to convene an appeal board to consider final ac-tion by a licensing board in a particular proceeding turns neither on the Board's label nor on the parties'greement.
Appeal board review will be routinely undertaken of
~an final disposition of a licensing proceeding that either was or had to be founded upon substantive determinations of 14/
Zn fact, it might be thought that special significance should attach to issues which a licensing board deems serious enough 'to justify being examined notwithstand-ing the absence of any controversy among the parties.
significant. safety or environmental issues.
It was the application of this standard that led to the establishment of an appeal board for the Monticello proceeding but not for NPPSS.
FOR THE APPEAL PANEL CHAIRMAN*
C. Je Bishop Secre ary to the Appeal Panel
- Because this memorandum is in explanation of action taken by him under his delegated authority to establish appeal boards for particular proceedings (see 10 CFR 2.787 (a) ),
the Appeal Panel Chairman is issuing it on his own.
Cf.
Eastern States Petroleum
'Cor
. v.
~Ro ers, 265 F.2d 593 (D.C. Cir..), mandamus
'denied sub nom.
Eastern States light of the fact that the memorandum does refer to the October 29, 1979 order entered by the Monticello Appeal d
t p.
the other members of that Board.
Both Dr. Buck and Mr.
Farrar have authorized him to note their agreement with the views expressed above and to state that those views underlay their participation in issuing the October 29 order.
UNITED STATES OF AMERICA NUCLEAR PZGULATORY CO~LflSS ION In the Matter of
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LiASHINGTON PU3LIC POWER SUPPLY SYSTE f
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(1PPSS Nuclear Project No. 2)
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Docket No.(s) 5O 397 OL CERTIFICATE OF SERVICE i hereby certify that I have this day served tha gore ning document(s~
upon each person designated on the official service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance with the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
Dated at washington, D.C. this day og g/6P 197+.
Offi f the Secretary of the Co ission ql ~~~
~/assd ~~
Q3 c81o+
UNITED STATES OF A~sERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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WASHINGTON PUBLIC POWER SUPPLY
)'YSTE'I)
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(WPPS Nuclear Project No. 2)
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Docket No.(s) 50-,397 OL SERVICE LIST Elizabeth S. Bowers, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
2055 Mr. Nicholas D. Lewis, Chairman Energy Facility Site Evaluation Council 820 East Fifth Avenue Olympia, Washington 98504 Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ms. Susan M. Garrett 7325 SE Steele Street
'Portland, Oregon 97206 Mr. Ernest E. Hill L'awrence Livermore Laboratory University of California Joseph B. Knotts, Jr., Esq..
P.O.
Box 808, L-123 Debevoise
&= Liberman Livermore ~ California 94550 1200 17th Street, N.
W.
Washington, D. C.
20036 Counsel for NRC Staff Office of the Executive Legal Director Mr Creg Darby U.S. Nuclear Regulatory Commission 807 South Fourth Avenue Washington, D.C.
20555
- Pasco, Wa'shington 99301
I