ML18003A708

Opposes Const of Proposed Reactors on Safety Grounds

ML18003A708
Person / Time
Site:	Harris
Issue date:	07/10/1979
From:	Riley K AFFILIATION NOT ASSIGNED
To:	Andrews I HOUSE OF REP.
Shared Package
ML18003A704	List: ML18003A703 ML18003A707 ML18003A708
References
NUDOCS 7909280578
Download: ML18003A708 (38)

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P~ ~ Pf~ SmaIina RUFUS I EDMISTEN PEPnrimenf af iuStiCE ATTORNEY OENERAL P. O. BOX 629 RAl EIOH 27602 Q l9 2 October 1979 Q o<

6 Secretary, United States Nuclear Regulatory Commission Washington, D. C. 20555 .

Re: Docket Numbers 50-400/401/402/403

Dear Sir:

In connection with the above-referenced dockets, I would appreciate it if you could revise your service list as follows:

1. Jesse C. Brake, Esq., Associate Attorney General, State of North Carolina, should be deleted.

2. The name of Dennis P. Myers, Attorney General' Office, State of North Carolina, should be deleted.

3. The name of M. David Gordon, Associate Attorney General, State of North Carolina, Post Office Box 629, Raleigh, North Carolina, 27602, should be added.

These changes have been brought about as a result of personnel status changes in the Office of the Attorney General for the State of North Carolina. Your assistance in amending this service list will be greatly appreciated.

Yours very truly, RUFUS L. EDMISTEN Attorney General Dennis P. Myers Assistant Attorney General DPM:ch

II I

UNITED STATES OF Af"AMERICA NUCLEAR REGULATORY COhfRISS ION BEFORE THE ATOtlIC SAFE'fY AND LICENSING APPEAL BOARD In the Matter of )

) Docket Nos. 50-400 CAROLINA POWER AND LIGHT COMPANY 50-401 50-402 (Shearon Harris Nuc1ear Power ) 50-403 Plant, Units 1, 2, 3 and 4) )

NRC STAFF BRIEF IN SUPPORT OF EXCEPTION TO SUPPLEMENTAL INITIAL DECISION September 4, 1979

TABLE OF CONTENTS Pacae QUESTIONS PRESENTED...............,...... 1 BACKGROUND 2 ARGUtlENT. 3 I. The Appeal Board Should Consider the Staff's Appeal to Preserve the Jurisdiction of the Comnission . . . . 3 II. The Licensing Board Constituted To Consider A Construction Permit Application Exceeded Its Jurisdiction'n Ordering A Hearing on the

'ssuance of An Operating Licensing .

III. No Basis Exists For Imposing A Licensing Condition Requiring A Hearing At The Operating Licensing Stage of Proceedings To Consider CPSL's Hanagement Capability and Technical Qualifications. 15 CONCLUSION. 19 APPENDIX

TABLE OF AUTHORITIES

~Pa e STATUTES Atomic Energy Act of 1954, as amended 5 102, 42 U.S.C. 2232 . ~ ~ ~ ~

'5 5185, 42 U.S.C. 2235 ~ ~ ~ ~ 9 5189(a), 42 U.S.C. 2239(a) 9) 1 2

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

5191, 42 U.S.C. 2241 12 REGULATIONS 10'FR 1.11 13 10 CFR 2.101 ~ ~ ~ ~ ~ ~ 18 j

10 CFR 2.102 5,17,i8,19 10 CFR 2.104 . 12,13 lv CFR 2.104(a) ~ ~ 12 10 CFR 2.104(b) ~ ~ ~ ~ 13,14,16 10 CFR 2.104(c) ~ ~ ~ ~ 9 10 CFR 2.105 . 12,13 10 CFR 2. 105(a) ~ ~ 9,12 10 CFR 2.105(e) 5,12,17 10 CFR 2.717(a) ~ ~ ~ ~ ~ ~ 13 10 CFR 2.760a ~ ~ ~ ~ 9 10 CFR Part 50 . ~ ~ ~ ~ ~ ~ ~ ' ~ ~ ~ ~ ~ 17,18

TABI E OF AUTHORITIES (Cont'd)

Pa<ac REGULATIONS (Cont'd) 10 CFR 50.30 . ~ ~ 5 10 CFR 50.34(a) 14,18 10 CFR 50.34(b) 14,18,I9 10 CFR 50.35(a) 13,14,16,18 10 CFR 51.22 . ~ ~ 5 COURT CASES Power Reactor Develo ment Co. v. International Union, 367 U.S.

396 1961 o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ ~ ~ ~ o ~ ~ ~ ~ ~ ~ ~ 16 Vermont Yankee Nuclear Power Co. v. NRDC, 435 U.S. 519 1 978) ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Electronic Industries Association v. F.C.C. 554 F.2d 1109 D.C. Cir. 1976).

Mississi i Power & Li ht Co. v. U.S.N.R.C., F.2d 5th Cir., August 24, 1979 .

CONIIISSION DECISIONS Arkansas Power & Li ht Co. (Arkansas Nuclear One, Unit 2),

ALAB-94, 6 AEC 25 1978 17,18,19 Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2 , ALAB-479, 7 NRC 774 (1978). 4,5 Carolina Power & Li ht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4, LBP-78-4, 7 NRC 92 (1978), affirmed, ALAB-490, 8 NRC 234, remanded, CLI-78-18, 8 NRC 293 (1978) . 2,14,18 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8 (1976) . . 10,17 Consolidated Edison Co. of New York ( Indian Point Station, Units 1, 2 & 3 , CLI-77-2, 5 NRC 13 (1977)

Consolidated Edison Co. of New York (Indian Point Station,.

Units 1, 2 & 3), ALAB-319, 3 NRC 188 (I976). 9,17,IS

TABLE OF AUTHORITIES (Cont'd)

~Pa e COMMISSION DECISIONS (Cont'd)

Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-379, 5 NRC 194 1978 o ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Ou uesne Li ht Co. (Beaver Valley Power Station, Unit 1)

LAB-408, 5 NRC 383 (1977). . . . . . . . . . . . . . . . . . 17 Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3),

ALAB-478, 7 NRC 772 (1978)

Florida Power Cor . (Crystal River Unit 3 Nuclear Generating Plant , Commission, 4 AEC 318 (1970) . . . . . . . . . . . . . 10,19 Florida Power & Li ht Co. (Turkey Point Nuclear Generating Units No. 3 & 4 , Comnission, 4 AEC 9 (1967) . . . . . . . . . 4,6,13,16 Gulf States Utilities Co. (River Bend Station, Units 1 & 2),

ALAB-183, 7 AEC 222 (1974) . . . . . . . . . . . . . . . . . . 10,16,17 Houston Li htin & Power Co. (South Texas Project, Units 1 & 2),

CLI-77-13, 5 NRC 1303 1977) . . . . . . . . . . . . . . . . . 6 Houston Li htin & Power Co. (South Texas Project, Units.l & 2),

ALAB-381, 5 NRC 528 1977 . . . . . . . . . . . . . . . . . . 4,6,13 National Bureau of Standards, 2 AEC 323 (1963) . . 13 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2, ALAB-252, 8 AEC 1175 (1975), affirmed CLI-75-1, 1 NRC 1 (1975) 4,6,7 Offshore Power S stems (Floating Nuclear Plants), ALAB-'489, 8 l<RC l94 9 8 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2, ALAB-316, 3 NRC 167 (1976). 12,13 Public Service Co. of New Ham shire (Seabrook Units 1 & 2),

CLI-76-17, 4 NRC 451 1976 .

Toledo Edison Co. (Davis-Besse Nuclear Power Station),

ALAB-157, 6 AEC 858 (1973)

TABLE OF AUTHOR I TIES (Cont ')

Pa<ac COt1l1ISSION DECISIONS (Cont'd)

Vermont Yankee Power Cor . (Vermont Yankee Nuclear Power Station , Commission, 4 AEC 429 (l970) .

Vir inia Electric Power Co. (North Anna Power Station, Units 1 5 2 , CLI-76-22, 4 NRC 480 (1976).

Vir inia Electric Power Co. (North Anna Nuclear Power Station, Units 1 8 2 , ALAB-538; 8 NRC (1979). . . . . . . . . . . 17

UNITED STATES OF AMERICA NUCLEAR REGULATORY COtHISS ION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CAROLINA POWER AND LIGHT COMPANY Docket Nos. 50-400 50-401 (Shearon Harris Nuclear Power 50-402 Plant, Units 1, 2, 3 and 4) 50-403 NRC STAFF BRIEF IN SUPPORT OF EXCEPTION TO SUPPLEMENTAL INITIAL DECISION QUESTIONS PRESENTED

1. Should the Appeal Board consider the question of whether the construction permit Licensing Board exceeded its jurisdiction in ordering the Staff to take action to allow'he Secretary of the Commission to notice a hearing at the operating license stage of proceedings?

2. Did the Licensing Board considering a construction permit application exceed

'its jurisdiction in ordering hearings at the operating licensing stage of pro-ceedings?

3. Is there any legal basis for ordering an operating license hearing prior to the submission of an application for such a license or the Staff's review of that application?

BACKGROunD On January 23, 1978, the Atomic Safety and Licensing Board issued an initial decision authorizing construction permits for the'Shearon Harris Nuclear Power Plant. 7 NRC 92 (1978). Construction permits were issued shortly thereafter. On August 23, 1978, that initial decision was affirmed by the Appeal Board in ALAB-490, 8 NRC 234 (1978).

On August 30, 1978, the Comnission received a letter from the members of the Licensing Board which served in the Shearon Harris proceeding raising questions regarding the forthrightness and accuracy of certain Staff testimony concerning the management capabilities of Carolina Power 8 Light Company, in view of matters coming to light between its initial decision and a determination of the appeal. The Commission issued an Order on Septemb..r 5, 1978, which stated, in part (8 ARC 293):

l. This proceeding is remanded to the Atomic Safety and Licensing Board for a further hearing on the management capabilities of CPEL to construct and.

operate the proposed Shearon Harris facility without undue risk to the health and safety of the public; The Licensing Board held extensive hearings and issued a Supplemental Initial Decision on July 13, 1979, 9 NRC , which affirmed that the Applicant has the management capability and technical qualifications to design and construct the Shearon Harris Nuclear Power Plant (SID, paragraph 190). The Licensing

Board also ordered that the existing construction permits be amended to include the following condition:

(ix) At an aopropriate time during the review of the application for the operating license of the Shearon Harris Nuclear Power Plant, the Staff shall implement the necessary actions to enable the Secretary to issue a notice of hearing on said application to be published in the Federal Reqister required under 1.0 CFR 52.104.

In addition to the other requirements of 52.104, the notice of hearing shall state that the presiding officer will consider (in addition to any other matter which may be in controversy) whether the Applicant has the manage-ment capability and is technically qualified to engage in the activities to be authorized by the operating license in accordance with the regulations of 10 CFR Chapter l.

On July 25, 1979, the Staff filed exceptions to this paragraph and paragraphs 17, 148 and 199-202 of the SID, which similarly indicated or set out reasons for ordering hearings to be held at the operating stage of proceedings.

These Findings, as well as Findings 190-198,are reproduced as an appendix to this brief for the convenience of the Appeal Board.

By Memorandum and Order of August 2, 1979, this Board stated inte,r a'lia, that the NRC Staff should set forth the discernible harm it is caused by that Licensing Board's action, and any other circumstances that allow it to appeal.

ARGUMENT I; The Appeal Board Should Consider the Staff's Appeal to Preserve the Jurisdiction of the Commission.

This Appeal Board in order to preserve the jurisdiction and the procedures of the Commission should consider the question of whether a Licensing Board

may order an operating license hearing as a part of its determination of a construction permit application. There is no.need for the Staff to show harm to itself in contrast to harm to the Commission as a predicate to having such a basic jurisdictional question considered by the Appeal Board. The Staff only need show that it is seeking to protect the integrity of the Commission's processes.

The interest of the staff in protecting the integrity of the Commission's processes is not that of just another party. See Florida Power 5 Li ht Co.

(Turkey Point Nuclear Generating Units No. 3 5 4), Commission, 4 AEC 9, 17 (1967); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 5 2), ALAR-252, 8 AEC 1175, 1177-1178 (1975), affirmed CLI-75-1, 1 NRC 1 (1975), affirmed, CLI-5-1, 1 NRC 1 (1975); Houston Li htin 8 Power Co.

(South Texas Project, Units 1 8 2), ALAB-381, 5 NRC 582 (1977). Mhi le the Staff may not ordinarily be treated any differently than any other party to

~

proceedings, the S'taff does have special duties and responsibilities that affect the hearing process. As the Commission, stated in Public Service Co.

of New Hamnshire (Seabrook Units 1 and'), CLI-76-17, 4 NPC 451, 462 (1976):

To be sure, the staff is a party to the proceedings before us. But it is also an arm of the Commission and is the we carry. out our primary instrumentality through which statutory responsibilities. It would be contrary to the facts of the administrative process to pretend that the staff is always merely a oarty whose submissions are to be given no more weight than those of any other party.. On some questions, such as interpretation of statutes or judicial decisions, the staff submissions have no more weight than those of any other party. But in other cases that would not be so ~

See also e.g.:'oston Edison Co. (Pilgrim Nuclear Generating Station; Unit 2),

ALAB-479, 7 NRC 774, 792 (1978); Offshore Power S stems (Floating Nuclear Plants),

ALAB-489, 8 NRC 194, 202-203 (1978); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-379, 5 NRC 565, 569-571 (1977);.Vi r inia Electric. Power Co.

(North Anna Power Station, Units 1 8 2), CLI-76-22, 4 NRC 480, 490-491 n. 11 (1976).

The scheme of the Atomic Energy Act 'and the Corrmission's regulations emphasize these differences. See e.g.: 42 U.S.C. 52232; 10 CFR 2.102, 2.105(e), 50.30, 51.22. The Staff not only has a duty to support its position before the, Boards much as other parties, but it also has duties to the Commission and to the public in initially reviewing applications, in preparing environmental impact statements, in seeing that a sound record is developed before the Boards, and in helping to see that the Boards do not co+nit error. See, e.g., Vermont Yankee

~C. CV Y 2 2 1 <<2 4 9;' 4,'YAAC429,42 (1970); Consumers Power Co. (Midland Plant Units 1 8 2), ALAB-379, 5 NRC 194, 202-203 (1970); Boston Edison Co., ~so ra; Consolidated Edison Co. of Bee York (Indian Point Station, Units 1, 2 8 3), CLI-77-2, 5 NRC 13, 15 (1977); see also

.Vermont Yankee Nuclear Power Co. v. NRDC, 435 U.S. 519, 526-527 (1978). As stated in the cited Commission Vermont Yank'ee case:

lie believe that the Staff woul'd have remained continually mindful of its affi rmative responsibility to assure that the record is sufficiently developed on the matter specified for consideration to permit a sound agency decision.

A proper jurisdictional base f'r a sound decision may be as important as a sufficient record; therefore it devolves on the Staff, as on all other components of NRC involved in the hearing process, to make sure that there is delegated authority as well as record support for Board decisions.

Courts have similarly recognized that agency staff may not only suppor t its deter-minations, but may also have an additional duty of representing an independent public 4 F,2d (5th

Cir., August 24, 1979, slip op. p. 7064 n. 19); Electronic Industries Association

v. F.C.C., 554 f.2d 1109, 1117 n. 19 (D.C. Cir: 1976).

The policy of allowing the Staff to raise issues that affect the processes of the Commission in the public interest is well established. In Florida Power & Li ht Co.,

~su rat,he Commission considered a Staff appeal which involved the sole question of .

the Licensing Board's jurisdiction to direct the holding of heari'ngs. It did not question the Staff's right to raise such a jurisdictional issue. In Houston Liahtina 8 Power Co., supra, an Appeal Board heard the Staff's appeal from the grant of an anti-trust hearing by' construction permit Licensing Board con-vened to consider petitions dealing with health and safety issues. An Appeal Board made a point of the lack of discernible harm to the Staff (aside from the Staff's interest in seeing that the orocedures and jurisdiction of the Commission are preserved) in emphasizing that all parties agreed that a hearing was necessary on whether the Applicant's conduct was inconsistent with the anti-trust laws and that such a hearing would probably be held. (Id. at pp. 586-

'587). Cf. Houston Li htin 8 Power Co. (South Texas Project, Units 1 8 2),

CLI-77-13, 5 NRC 1303, 1307-1309 (1977). Yet this Board passed on the jurisdiction of the Licensing Board to issue the order involved in the Staff's appeal, without looking for particularized harm to the Staff, In so ruling the Appeal Board indi-cated that it had a duty to come to grips with the Staff appeal and decide the jurisdictional issues presented by the .Staff in order to preserve the Commission's procedures (Id. at pp 587-588).

~ Similarly here this Board has a duty to con-sider the jurisdictional issues the Staff raises concerning whether the Licensing Board's actions in ordering a hearing was ultra vires.

In Ilorthern States Power Co. ~su ra, an Appeal Ooard found that the Stafr's interest in preserving the integrity of the processes of the Commission sufficient

to let it appeal an issue involving the proper extent of cross-examination by intervenors regardless of harm. The Appeal Board exolicitly rejected court s

precedent in regard to the need to show particularized harm, and emphasized that it would and indeed had a duty to consider questions affecting the con-tinuing operations of the Coranission's processes regardless of haim to the appellant. ALAB-252, 8 AEC at 1177-1178. The 1 g Corrmission similarly emphasized that it was sua ~sonte reviewing the procedural question there involved because it was good policy to review an issue of recurring importance that could have an affect on many hearings, regardless of discernible harm to the parties. CLI-5-1, 1 NRC at 2.

Here the issue the Staff raises involving the integrity of the Commission's procedures are considerably more important than the issue involved in the Northern States Power case. Involved is not just the extent of cross-examination which a Licensing Board may allow in conducting proceedings before it, but whether a Licensing Board considering a construction permit has jurisdiction to order an operating license hearing when such a hearing may not otherwise be required under the Commission's regulations. If the Staff had the ability to raise questions involving the. scope of cross-examination to Protect the integrity of the Commission's procedures, it must have the ability to raise. basic jurisdictional questions involving the power of Licensing Boards not only to control procedures in hearings before them, but to order hearings not ordinarily required by the Commission's regulations.

The issues are wider and broader than those in the Northern States Power case;

-U Dicta in that opinion on tfle need to show discernible injury is, as that opinion holds, not applicable to issues such as those involved here affecting the integrity of the Commission's processes.

and the Staff's interest in preserving the integrity of the Commission's processes outweigh 'any consideration of its showing discernible harm in individual pro-ceedings.

Further, the Staff has been discernibly harmed by the Licensing Board's order as that order--

(1) forecloses the Director of Nuclear Reactor Regulation from issuing an operating license in the absence of intervention or order of the Commission, and (2) directs the Staff to take specific actions.

In recent formulations of the need to show harm as a predicate to appeal, this Board has emphasized that the touchstone is whether one is dissatisfied with the decision or action taken, in contrast to the opinions As stated in Duke

'Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-478, 7 NRC 772, 773 (1978):

.. An appeal lies from the decision of the Lfcensing Board, not its opinion; it is the Board's orders (the administrative equivalent of a judgment) which are sub-ject to appellate review. "Only where a party is aggrieved by, or dissatisfied with, the action taken below and invokes our appellate jurisdiction to change the result need ex-ceptions be filed--or are they permitted." Public Service Com an of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2, ALAB-459, 7 NRC 179, 202 (February 16, 1978).

In the often cited case of Toledo Edison Co. (Davis-Besse Nuclear Power Station),

ALAB-157, 6 AEC 858, -859 (1973), it:,as emphasized that the rule reouiring

discernible harm is to avoid merely academic disputes; but where one is dis-satisfied with the action taken below, in contrast to the, grounds on which that action was taken, one has discernible harm and may appeal.

Here there is no academic dispute. It is not just the grounds upon which the decision was made that the Staff appeals but the very action ordered by the Board which the Staff disputes. The order provides that a hearing be held and that a Licensing Board rule on the management capability and technical qualifications of the Applicant before an operating license is issued. This forecloses the Director of Nuclear Reactor Regulation from exercising his delegated authorities. Under section 189(a) of the Atomic Energy Act, as amended, 42 U.S.C.

2239(a), after a construction permit hearing, the Commission may issue an operating license without a further hearing where no one whose interest may be affected requests such a hearing. The Commission's regulations delegate to the Director

'of Nuclear Reactor Regulation sole authority to issue these operating licenses, absent a request for a hearing, a petition to 'intervene or a decision by the Commission itself that such a hearing is needed. 10 CFR 2.105(e) provides:

If no request for a hearing or petition for intervention is filed . . ., the Director-of Nuclear Reactor Regulation

., will issue the license, See also 10 CFR 2.104(c), 2.105(a), and 2.760a.

As stated in Consolidated Edison Co. of New York (Indian Point Station, Units 1, 2 8( 3), ALAB-319, 3 NRC 188, 190 (1976):

'f no one opposed to the grant of the [operating] license (or any of its conditions) exercises the opportunity to intervene or request a hearing, no hearing ivill ordinarily be held. In that situation, the decision whether and on

. what terms to issue an operating license is left entirely to the staff, which makes its decision on all relevant safety matters without consulting with or obtaining the approval of a licensing board. [Footnote deleted].

See also Cincinnati Gas 8 Electric Co. ('l%11iam H. 7immer Nuclear Power Station),

ALAB-305, 3 NRC 8, 9, 12 (1976); Gulf States Utilities Co. (River Bend Station, Units 1 8 2), ALAB-183, 7 AEC 222, 226 n. 10 (1974). In foreclosing the Director from issuing operating license absent a proper petition to intervene or request, for hearing or an order of the Commission, the Staff has been discernibly harmed.

Further, the order by its terms directs the Staff to take action it would not ordinarily take. The order states:

. the Staff shall take the necessary action to enable the Secretary to issue a notice of hearing

[SID Finding 203],

The Staff maintains the Licensing Board did not have authority to order the Staff to take that action.

In sum, this Appeal Board should consider the Staff appeal of the order of the construction permit Licensing Board requiring a hearing on the grant of an operating license in order to protect the integrity of the Commission's processes, and because that order directly prescribes Staff actions and impinges on the authori ty dele'gated .to the Staff, and so in that manner also discernibly harms the Staff.j This Board in its Order of August 2, 1979 indicated that it relevant the costs to the Staff of the additional hearing ordered by the might consider Licensing Board. ';lhile it is not 0ossible to set out such costs now, it should be noted that the remanded hearing consumed two weeks time for over ten Staff members. In addi tion pretrial preparation and the preparation of findings consumed at least one-man year of Staff time. Ordering of hearings where none may be necessary, effectively diminishes the Staff's limited resources, and requires that manpower be removed from activities which the Stiff views as having more safety significance.

II. The Licensinq Board Constituted To Consider A Construction Permit Application Exceeded Its Jurisdiction in Ordering A Hearing on the Issuance of An Operating Licensing.

The Licensing Board in the construction permit oroceeding did not have juris-diction to order a hearing on the issuance of an operatinq license. The lack of jurisdiction of a Licensing Board considering the grant of a construction permit to order a hearing on an operating license is established by the Atomic Enerqy Act, Commission regulation, Commission precedent, and the Notice of Hearing in this proceeding.

Section 185 of the Atomic Energy Act as amended, 42 U.S.C. 2235, establishes two seoarate proceedings for the authorization to construct and ooerate a facility for the utilization of nuclear energy--one for a permit to construct the facility and one for an operating license to be issued after construction of the facility is complete. l<hile a hearing must be held on the grant of a construction permit, no hearinq need be held on the issuance of the operating license in the absence of a request for one by a person whose interest may be affected, if a hearing was held on the issuance of the construction permit for the facility. Section 189(a) of the Atomic Energy Act, as amended, 42 U.S.C.

2239(a).

Commission regulations have continued the bifurcation set out in sections 185 and 189 of the Atomic Energy Act, and have not given the Licensing Boards considering construction permits authority to order hearinqs on operating licenses. The procedures for the initiation of hearings on applications for

licenses are wholly contained in 10 CFR 2.104 and 2.105. lJhere a hearing on an application is required by the Atomic Energy Act, by the Commission.'s I

regulation, or is ordered by the Commission, such as a hearing on an application for a construction permit, the hearing is initiated by the Secretary of the Commission. 10 CFR 2.104(a). lJhere such a hearing is not required, but only an opprotunity for a hearing need be given, such as on applications for operating licenses, the Comnission publishes the notice of opportunity for hearings. 42 U.S.C.

2239(a); 10 CFR 2.105(a): As we had detailed in the preceding point, under 10 CFR 2.105(e), where there is no request for a hearing or petition to intervene, no hearing is ordinarily held; and the operating license is directly issued by the Director of Nuclear Reactor Regulation. "If a request for a hearing and/or a petition for leave to intervene is filed . . . the Commission and/or the atomic safety and licensing board designated by the Commission or by the Chairman of the Atomic Safety and L'.censing Board Panel will rule on the request and/or petition and

'he Secretary or the designated atomic safety and licensing board will issue a notice of hearing or an appropriate order." 10 'CFR 2.105(e). Thus absent such specific designation a Licensing Board has no jurisdiction to order a hearing on an application for an operating license.

Under section 191 of the Atomic Energy Act, as amended, 42 U.S.C. 2241, the Atomic Safety and Licensing Boards have only such powers as the Commission may prescribe, and may only exercise delegated powers. Public Service Co.

of Indiana (liarble Hill Nuclear Generating Station, Units 1 8 2), ALAB-316,

3 NRC 167, 170-171 (1976);10 CFR 1.11. The delegated powers to construction permit Licensing Boards do not encompass the oower to start a proceeding.

As the Commission held in Florida Power and Li ht Co., ~su ra at p. 15:

. the Commission has not delegated to atomic safety and licensing boards the authority to direct the holding of hearings following the issuance of a construction permit.

See also flational Bureau of Standards, 2 AEC 323, 324'(1963). This was emphasized more recently by this Board in the anti-trust proceeding of Houston Li htin 5 Power Co., suora at p. 592, where it said:

. the licensing boards have no independent authori.ty to initiate any form of adjudicatory proceedings. 'Hhat is required is the prior issuance, by some other component of the Commission, of one of five types of orders specified in 10 CFR 2.700 The action of a construction permit Licensing Board was ultra vires in ordering a hearing on an operating license application.

A Licensing Board's authority is prescribed by the Notice of Hearing. See 10 .CFR 2.104, 2.717(a); Public Service Co. of Indiana, suora. The Notice of Hearing of September 21, 1972, set out that the hearing was solely to consider whether con-struction permits should issue, and did not say the Board should consider any issue related to operate licenses including whether hearing should be held on applications for those licenses. See Florida Li ht 5 Power Co., ~su ra. In remanding tlie proceedin to the construction permit Licensing Board "for a further hearing, on the management Although the Rules provide that the Commission may order hearings on operating licenses even absent matters in controversy, that authority has not been delegated to the Licensing Boards. As indicated above, those Boards only have authority to consider and determine the applications before them, and not to order other hearings. See 10 CFR 1.11, 2.104(b), 2.105; see also 10 CFR 50.35(a).

capability of CP&L to construct and operate the Shearon flarris facility without undue risk to the health and safety of the public" the Co,"~mission did not increase the authority of the Board to inquire into any matter or is'sue any order which it would not ordinarily have in the usual construction permit proceeding. Carolina Power & Li ht Co. (Shearon Harris Nuclear Plant Units 1, 2, 3 & 4), CLI-78-18, 8 NRC 293 (1978). Cf. Supplemental Initial Occision Findings 191-194. Under both 10 CFR 50.35(a) and 2.104(b)(l)(i)(d), it must be determined before a construction permit is issued that there is "reasonable assurance .... that the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public." Under 10 CFR 50.34(a), an applicant for a construction permit must submit a preliminary plan for its organization, training of personnel and conduct of operations.~4/ These matters were set for inquiry in the original Notice of Hearing of September 21, 1972. The Licensing Board in its initial decision had made determinations involving these matters..Carolina Power & Li ht Co. (Shearon Harris Nuclear Generating Plant, Units 1, 2, 3 & 4), LBP-78-4, 7 NRC 92, 143-144 (see also 106-110)

(1978); affirmed ALAB-490, 7 NRC 234, 242-243 (1978). Thus in remanding the issue to that Board, the Commission, as appears on the face of the order, granted the Licensing Board no more authority than is enjoyed by Licensing Boards in usual construction permit proceedings.

J An application for an operating license must be much more- detailed in this regard. See 10 CFR 50.34(b)(6)&(7).

5/ The Licensing Board in its letter of August 30, 1978, generating this remand, did not indicate any need for more authority. It pointed out that it had made a determination of conformance with 10 CFR 50.35(a), and now with further information, felt there was a need to inquire further into the basis of that determination. Board Exhibit 10, pp. 9-10.

In sum the Licensing Board lacked the authority to order a hearing at the operating license stage of proceedings.

III. No Basis Exists For Imposing A Licensing Condition Requiring A Hearing At The Operating Licensing Staqe of Proceedings To Consider CP&L's Management Capability and Technical qualifications.

The Licensing Board misapplied the standards for the issuance of construction permits in determining that the permits should be conditioned upon. the Applicant establishing at a hearing before the issuance of an operating license that it has the management capability and technical qualifications to operate the Shearon Harris facility. The Licensing Board wrongly concluded that "reasonable assurance" that the plant could be safely operated could only be found if it provided for a hearing of such operation before an operating license was issued.

As it stated (SID Fdg. 199 & 201):

199. Instead we have the option of conditioning the permit to satisfy our doubts about CP&L's management capa-bility to operate Shearon Harris. Although the Board predicts, based upon this record, .that CP&L will be able to demonstrate during the operating license review that it then has the technical qualifications and management capability to operate Shearon Harris safely, its operating experience to date raises sufficient doubt that a demonstration of that capability in an proceeding is warranted. 'djudicative 201. Our condition provides simply that whatever demon-stration CP&L ordinarily must make under 550.34(b)(6) and (7) to satisfy NRR also must be made in a public adjudicative hearing to satisfy a presiding officer and the appellate fora of the Commission. The imposition of this condition does not reflect a lack of confidence in the t)RC Staff, because even in a later hearing on management capability and technical qualifications, a presiding officer .vi 11 be required to depend upon the Staff's evidence and analyses. He need not defend our conclusion by asserting that a determination of capa'-

bility by an adjudicative hearing is more reliable than

an administrative determination by the Staff. The policy of the Commission to provide a public airing of important safety considerations is wel 1 established. A mandatory hearing during the operating license 'is Practical and is called for. Sufficient questions concerning CPEL's management capability to operate Shearon Harris were raised during this reopened construction permit hearing to re-quire reasonable minds to inquire further. The best time and opportunity for Applicant to satisfy the burden thus placed upon it will be during the operating license pro-ceedinq.

Calling for an adjudicatory hearing for the reasons given misconstrues the regulations, policies and standards of this Commission. Under 10 CFR 2.104(b)(l)(i) referencing 10 CFP, 50.35(a), a construction permit may be issued when--

. there is reasonable assurance that, (1) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of construction of the proposed facility, and (ii ) .

the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public. (10 CFR 50.35(a )).

All problems need not be solved upon the issuance of a.construction permit.

Power Reactor Develo ment Co. v. Internat'ional Union, 367 U.S. 396 (1961). All that is needed are determinations that there is "reasonable assurance" that any safety question will be satisfactorily resolved before completion and that the facility "can be" operated without undue risk. Florida Power Cor . (Crystal River Unit 3 Nuclear Generating Plant), Commission, 4 AEC 318, 321-322 (1970);

Florida Power 8 Li ht Co. (Turkey Point Nuclear Generatinq Units No. 3 8 4),

~su ra at pp. 14-17; Gulf States Utilities Co. (River Bend StationUnits , 1 and 2),

ALAB-444, 6 NRC 760, 776-778 (1977).

The doubt expressed, the questions raised, or the fact that, cause exists for "reasonable minds to inquire further" (SID Fdg. 201) at t)e construction permit stage of licensing, are not grounds for ordering special adjudicatory procedures or even for recommending that such special procedures be conducted during the I I I . I h ~CI I '

C I I ph I*d that such concerns should "be dealt with within the framework of regular Commission procedures for licensing power reactors." The Commission, therefore, rejected a recommendation by the Licensing Board. that it condition a construction permit to require the holding of hearings on technical problems related to the removal of iodine before issuance of an operating license, and issued an unconditioned construction permit. Cf. Arkansas Power & Li ht Co. (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25, 28 (1973). As we have detailed, regulation sets out Commission policy not to hold hearings on operating license applications unless there are issues put in controversy by those who might be affected by the facility or the Commission orders such hearings. 10 CFR 2.105(e); Cincinnati Gas EI Electric Co., ~su ra; Balf States Utilities Co., ALAS-183'~su ra. Administrative review by the Staff under 10 CFR 2.102 and 10 CFR Part 50 is deemed sufficient to protect the public health and safety, without adjudicatory hearings. Cf.

~Yir inia Electric Power Co. (North Anna Nuclear Power Station, Units 1 & 2),

ALAB-538, 8 NRC (1979); Duquesne Li ht Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 (1977); Consolidated Edison Co. of New York, ALAB-319, 3 NRC at 190, 193.

As we stated, under 10 CFR 50.35(a) it is required that there be "reasonable assurance" prior to the issuance of a construction permit that the "proposed facility can be" operated without undue risk to the publicI health and safety.~

The fact that the "proposed facility can be" oper ated under this standard was not questioned by the Licensing Board. Under 10 CFR 50.34(a)(6) an applicant for a construction permit must only submit for review--"A preliminary plan for the applicant's organization, training of personnel, and conduct of operations."

As the Board recognized, CPGL has done so. SID, Finding 198. Under 10 CFR 50.34(b)(6)8(7) much more detailed information must be supplied on these matters in an application for an operating license. Under 10 CFR 2.102 and Part 50, this information is subject to Staff review. CPSL has not submitted its application for an operating license under 10 CFR 2.101 an'd 50.34(b) supplying this more detailed information in its organization and conduct of operations. Needless to say, the Staff has not conducted its review under 2.102 and Part 50 generally.

In this posture, it cannot be presumed that the Staff will not do a proper

'job in seeing that CPSL has the management capability and -technical qualifications to operate Shearon Harris before it issues or'ecommends the issuance of an .

operating license. See Arkansas Power 8 Li ht Co., supra at p. 28; Consolidated Edison Co. of New York, ALAB-319, supra at p. 193. Under the'policies and standards of the Commission, even if the Board had the authority to do so, there is no factual basis upon which to now require an adjudicative proceeding on CPSL's management capability and technical qualifications to operate the Shearon facility. 'arris It is "the recognized that the Commission remand called for further inquiry into management capabilities of CPSL to construct and operate" the proposed facility. 8 NRC 293. ,However, as indicated in the proceeding point this was not an,";d hoc change in the standards against whi'ch it was to be determineu if CPYL was to receive a construction permit for the facility.

Thus to the extent the Licensing Board felt that an adjudicative proceeding, in addition to the administrative review by the Staff, should be focused on the I

matters concerning the Applicant's management capabilities and technical qualifications because "reasonable minds might enquire further" it was mistaken.

Cr stal River Unit 3, ~su ra; see also Arkansas Power a Li ht Co., ~su ra. The Staff of course will focus on these matters during its administrative review of the application for an operating license when it is received. See 10 CFR 2.102, 50.34(b)(6)5(7). At this time, no factual ground exists, as no authority existed, to order a hearing on Applicant's management capability as a condition to the issuance of an operating license.

CONCLuSION The Appeal Board should consider this appeal of an important, jurisdictional issue, and rule that the Licensing Board had neither the authority nor the cause to order the Staff to take action to provide for an operating license.

hearing on CPGL's management capability and technical qualifications to operate the Shearon Harris facility.

Respectfully submitted, Edwin J. .eis Assistant Chief Hearing Counsel Dated at Bethesda, Maryland, this 4th day of September, 1979.

APPENDIX

17. Among other things, we find below that CPE:L sometimes has been slow in. responding to safety requirements and that it failed to plan adequately for the startup of Brunswick, its most recent nuclea plant to come on line.

'Ke do not dwell. long on whether this has been a question of fault on the part of management. "Fault" is'oo difficult to define and to identify. But we conclude that in the public interest, the construction permit should be con-ditioned to require that CPR:L demonstrate in a public hearing during the operating license proceeding that it is then or timely will be technically qualified to operate Shearon Harris safely. >'Fe do not otherwise disturb the construction permit.

148 'hile we pause for a moment to ponder why Applicant would suggest that the record would or should contain evidence that the QA criteria were predictable, we do not dwell long on the merits of the disagreement between Staff and Applicant.

Whether the regulatory requirements were predictable is

~

important only. as it might relate to Applicant's fault in not being prepared to meet them. The condition we have imposed

on the construction permit is not predicated upon an express findi'ng of fault. Everyone with knowledge of the events'grees that in fact CPE:L wasn't prepared. The Board is not being punitive in assuring that, with respect to Shearon Harris operations, CPRL will be prepared.

XII . CONCLUSIONS AND REASONS FOR DECISION 190. For the reasons summarized in paragraph 92, page 52,

~su ra, we conclude that Applicant has the mana ement capability and technical qualifications to design and construct the Shearon Harris Nuclear Power Plant. We do not disturb our conclusion to this effect in the Initial Decision of January 23, 1978. 7 NRC 92, 142. There is a comfortable preponderance of the evidence that CPR:L and its contractors, with the surveillance of the NRC', can construct the facility in accordance with the SAR and applicable regulations.

a Paragraphs 62-92, supra.

191. Pursuant to 10 CFR 550.34(a) (6), an applicant for a I

construction permit is required to submit with its preliminary safety analysis report a preliminary plan for the applicant.'s organization, training of personnel and conduct o'f operations.

Specifics of the operational plan, including its managerial and administrative controls, may be deferred until the

application for an operating license under 10 CFR 550.34 (b) (6),(7) . The extent to which the Board (during a con-struction permit proceeding) may inquire into the Applicant's management capability to operate Shearon Harris is in doubt.

We are unable to identify any precedent concerning the dividing line between the preliminary plan required by 550.34(a) and the final details required by '550.34(b).

192. En any event, whatever authority the Commission has to inquire now into CPR:L's management capability to operate the plant later rests with this Board, The Commission expressly remanded that issue to us in its order of September 5, 1978. 8 NRC 293, at 294. E[oreover, the Applicant, perhaps in a spirit of cooperation, has raised no objections to our detailed'inquiry into CP8:L's opera-tional management capabilities and, in fact, proposes a conclusion that it has the management, capability to operate Shearon Harris . Applicant 's Proposed Findings Con-clusions of Law, Paragraph 68, p. 46.

193. We recognize that in the context of the regulations, the Commission's remand order, and simple logic', CPE:L is not required to have in its employment now a full complement of personnel trained to manage a plant still years off stream.

The standard we have employed is that the Applicant has the

4 burden of proving during this reopened construction permit proceeding that there is now a r'easonable probability that ill it v timely. have the management capability and technical qualifications to operate the plant without undue risk to L

the health and safety of the public. Stated another way, 550.34(a) (6) requires -a reasonable showing that Applicant will be able to comply with 550.34(b) (6) and (7) .

194. It is, of course, fundamental to Commission licensing law that an applicant seeking a construction permit carries the burden of proving that it is entitled to one. 10 CFR 52.732. This is true even where the issue in controversy has not been raised by the applicant. Tennessee Valley Authority (Hartsville Nuclear Plant) ALAS-463, 7 NRC 341, 356, 360 (1978), Union Electric Co. (Callaway Plant) ALAB-348, 4 NRC 225, 227-231, 233. The burden on .particular issues may be triggered by a showing sufficient to require reasonable minds to inquire further. Vermont Yankee Nuclear Power Corp. v. hRDC 435 US 519, 486, 55 L Ed 2d 460 (1978) .

7(ith respect to specific issues where the burden is one of persuasion,'he magnitude of the burden upon a litigant to i

whom the burden is assigned should be influenced by the gravity of the matter in controversy. Virginia Electric R:

Power Company (North Anna Power Station) ALM-256, 1 NRC 10, 1 7 n. 18.

~ '

195. The managerial and technical qualifications to

. operate a nuclear power plant safely is an issue of the greatest gravity and we place a large burden of persuasion upon the Applicant to convince the Board by a preponderance

~

of the evidence that it has prevailed on the issue. The factual episodes covered by the evidence, particularly the problems of understaffed, underexperienced and overworked personnel during the startup and early operation of Brunswick, and 'some of the surrounding circumstances of the early operation of that plant has triggered a burden upon Applicant to persuade us that it is entitled to an unconditioned con-struction permit.

196. Applicant apparently views its evidentiary burden to be somewhat different. It pro'poses a finding that, "The Board is not in a position to determine, even after the con-siderable'vidence in the record, whether, for example, it was reasonable for CPE:L to take as long as it did to alarm the KPCI door." Applicant's Proposed Findings, Paragraph 60,

p. 41. In fairness, Applicant has an additional point that it is not necessary to resolve that issue or the other specific-

allegations made by her, Cantrell because CPE..L'met hRC requirements and operated the plant in a reasonable manner.

Id. 5'e don't agree that the factual issues may be avoided.

The episodes were important. The facts are primarily in the hands of CPS:L who could better have explained the circum-26/

stances.

• l97. Setting aside for the moment the question of burden of proof or persuasion, the evidentiary record of this pro-ceeding established clearly that the qua.lity of CPE;L manage-ment of Brunswick from early 1974 until mid or late 1977 fell below desirable levels, even according to CPR:L's standards. A fair inference from the evidence is that some of the problems discussed above, such as the HPCX room bulkhead door problem and the diesel generator diesel lubrication problem, is the proximate result of management failure.

198. The Applicant urges us to find that despite the operational problems that might have existed in the past, 26/ The Appeal Board 's res iosa loquitor discussion in Atlantic Research Corporation, (AI IB-542} May 2, 1979, slin op., pp. 25-27, a lthouhin .the context of a civil penalty case, is a good explanation of why evidentiary burdens are so allocated. See also Union Electric Comnany, supra, 4 NRC at 231.

CPS;L has taken effective action to solve these problems, citing appropriate references to the record. Applicant's I

Proposed Findings 64-65, pp. 43-44, The NRC Staff also urges a conclusion that CPE:L's operations have considerably improved since Nr. Cantrell recommended that the construc-tion permit be conditioned. Staff Proposed Findings Paragraph 124, pp. 72-73 . We agree. Were it not so, th' remedy might have been to suspend the construction permit until the requirements of f50.34(a)(6) have been satisfied.

199. Instead we have the option of cond tioning the permit to satisfy our doubts about CPE:L's management capability to operate Shearon Harris . Although the Board predicts, based upon this record, that CPR:L will be'ble to demonstrate during the operating license review. that it then has the technical qualifications and management capa-bility to'perate Shearon Harris safely, its operating experience to date raises sufficient doubt that a demonstra-tion of that capability in an adjudicative proceeding is warranted.

200. The NRC Staff argues that neither NRR nor Region II of IR-.E nor ?Ir. Cantrell, who originally thought so,

believe that CPS:L's construction permit should be con-ditioned upon improving its staffing, manpov~e practices 27/

or training. Proposed Findings 124, pp. 72-73. The testimony cited by the Staff in support of this position fairly represents the record . Id . u we ave decided on two bases not to follow the expert advice of the Staff.

Fxrst, even the Staff 's position is largely predicated upon the assumption of continuing improvement of CPE:L's manage-ment capability. Staff Panel III, pp. 4, 41-42; Long, Tr.

2967, Staff Proposed Findings, Paragraph 101, pp. 56-57.

Second, the hypothetical condition opposed by the Staff is not the condition we impose . The form of condition opposed by the Staff, requiring specific improvements in staf f ing, manpower requirements and training, would be very difficult to draft and to enforce considerin~g the fact that'anagement and training must be fashioned for a specific plant and staffing needs will vary over time.

On the other hand if the condition requiring improvement were not made specific, its value would be doubtful.

201. Our condition provides simply .that whatever demon-stration CPK:L ordinarily must make under 550.34(b)(6) and (r) to satisfy NRR also must be made in a public adjudicative Staff includes '!r. Cantrell among those opposing a cond'tion upon the permit. The condition we impose is exactly the remedy recommended by 11r. Cantrell.

Cantrell, Tr. 3427.

hearing to satisfy a presiding officer and the appellate fora of the Commission. The imposition of this condition does not reflect a lack of confidence in the BRC Staff, because even in a later hearing on management capability and technical qualifications, a presiding officer will be required to depend upon the Staff 's evidence and analyses.

Fe need not defend our conclusion by asserting that a determination of capability by an adjudicative hearing is more reliable than an administrative determination by the Staff. The policy of the Commission to provide a .

public airing of important safety consideration- is well established . A mandatory hearing during the operating license is practical and is called for. Sufficient questions concerning CPE:L's ma'nagement capability to operate Shearon Harris were raised during this reopened construction permit hearing to require reasonable minds to inquire further. The best time'nd opportunity for Appli-cant to satisfy the burden thus placed upon it wi.ll be

'uring the operating license proceeding.

202. The Board concludes that a hearing on the applica-tion for an operating license for Shearon Harris Nuclear Power Plant on the issue of whether the Applicant has the management capability and technical qualifications to engage in the activities to be authorized by the operating license will be required in the public interest.

UHITED STATES OF AflERICA NUCLEAR REGULATORY COblHISS ION BEFORE THE ATOthIC SAFETY AHD LICENSING APPEAL BOARD In the tlatter of )

)

CAROLINA POWER AND LIGHT COMPANY ) Docket Nos. 50-400

) 50-401 (Shear on Harris Nuclear Power ) 50-402 Plant, Units 1, 2, 3 and 4) 50-403 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IH SUPPORT OF EXCEPTION TO SUPPLEHENTAL INITIAL DECISION" 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 by deposit in the Nuclear Regulatory Commission.

internal mail system, this 4th day of September,'979:

"Alan S. Rosenthal, Esq., Chairman *Mr. Glenn 0. Bright Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Huclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555

• Dr. John H. Buck Dr. J. V. Leeds, Jr.

Atomic Safety and Licensing 10807 Atwell Drive Appeal Board Houston, Texas 77096 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Richard E. Jones, Esq.

Associate General Counsel

• Michael C. Farrar, Esq. Carolina Power 5 Light Company

. Atomic Safety and Licensing 336 Fayetteville Street Appeal Board Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Thomas Erwin, Esq.

115 West Horgan Street

• Ivan W. Smith, Esq. Raleigh, North Carolina 27602 Atomic Safety and Licensing Board Panel Wake County Public Library U.S. Nuclear Regulatory Commission 104 Fayetteville Street Mashington, D. C. 20555 Raleigh, North Carolina 27601

I George F. Trowbridge, Esq. +Atomic Safety and Licensing Shaw, P'ittman, Potts 5 Trowbridge Board Panel lQ00 H Street, N.'ll. U.S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 I

Dennis P. flyers *Docketing and Service Section Attorney General's Office . Office of the Secretary State of North Carolina U.S. Nuclear Regulatory Commission P. 0. Box 629 Washington, D. C. 20555 Raleigh, North Carolina 27602 "Atomic Safety and Licensing Appeal Board'.S

. Nuclear Regulatory Commission Washington, D. C. 20555 Edwin J. Re Counsel f HRC Staff