ML18017A709
| ML18017A709 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 11/02/1979 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| NUDOCS 7911200088 | |
| Download: ML18017A709 (12) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CONt1ISS I ONE RS:
Joseph H. Hendrie, Chairman Victor Gilinsky Richard T.
Kennedy Peter A. Bradford John F. Ahearne In the Hatter of CAROLINA POWER AND LIGHT CQ1PANY (Shearon Harris Nuclear Power Plant, Units 1, 2,
3, and 4)
Docket Nos.
50-400 50-401 50-402 50-403 ORDER Intervenors Conservation. Council of North Carolina and Wake Environment, Inc.,
have moved the Commission to reopen and remand one aspect of this pro-ceeding to the Licensing. Board.
In their brief motion, Intervenors argue that the Licensing Board decision in 1978 to permit construction of the Shearon I
Harris plants is implicitly, if not explicitly, premised on the soundness of the Reactor Safety Study (MASH-1400), otherwise known as the Rasmussen Report.
Intervenors point out that the Commission withdrew its support for certain aspects of WASH-1400 by the adoption of a report by the NRC Risk Assessment Review Group in 1979, known as the Lewis Repor t.
Based on this decision, the Intervenors seek the opportunity to litigate unspecified contentions "relating to the effects of the Lewis Report upon the Shearon Harris proceeding."
Both the NRC staff and the applicant have filed opposi tions to this motion.
As the Commission decided in response to another request for a remand, Shearon
Harris proceeding is now concluded except for the radon question pending before the Appeal Board and the management qualification issue which we re-manded to the Licensing Board."
Carolina Power and Li ht Com an (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-79-5, 9
NRC (May 2, 1979) (slip opinion p. 4).
Consequently the appropriate remedy in this case is for intervenors to request action under 10 CFR 2.206.
However, since that opinion was issued after this motion was filed, we will address the motion for remand on the merits.
He understand the Intervenors'rgument to be that adoption of the Lewis Report has somehow altered, in a manner not identified in the motion, the basis for the Harris Initial Decision.
Even assuming this connection to have been squarely presented, it is not supported by the record in this case.
No reference is made to the Rasmussen Report in the Initial Decision.
See LBP-78-4, 7
NRC 92 (1978).
Similarly, no such reference appears in the Appeal Board affirmation ALAB-490, 8 NRC 234 (1978).
In fact, our attention is called to only two instances where the Rasmussen Report is mentioned:
in the Final Environmental Statement (by reference to the fact that the study leading to the Report was in progress')
and in prepared staff testimony about the comparative health effects of the nuclear vs. the coal fuel cycle.
In the latter instance, the staff testimony noted the uncertainties in the Rasmussen Report.
Most significantly, the staff noted this prepared testimony (which became draft NUREG-0332) in its review of regulatory actions referencing the Rasmussen Report after the adoption of the Lewis Report;- the staff found that no reconsideration of the individual licensing actions was necessary.
The Commission agreed.
In the instant proceeding, Intervenors have failed to make a showing that the Harris Initial Decision was in any way dependent upon the Rasmussen Report and that adoption of the Lewis Report represented a change in material fact so t
I 1tt3 tt I
. ~ICi, 322 11.5.
- 533, 514 (1944).
Consequently, we deny the Intervenors'otion on the merits.
It is so ORDERED.
For the Commission AHUEL J Secretary of h
C LK e Commission Dated at Washington, DC, this LAf day of November, 1979.
pa SEPARATE COMMENTS OF COMMISSIONER BRADFORD I concur with the result in this decision.
However, I would have addressed the standard to be applied,to motions to reopen licensing pro-ceedings.
The Commission's most recent pronouncement in this regard requires the proponent of such a motion to establish "that 'a different result would have been reached initially had [the material submitted in support of the motion] been considered.'citations omitted)."
Kansas Gas P
8 Electric Com an Wolf Creek Genera'tin Station, Unit 1), ALAB-462, 7 NRC 320, 328 (1978).
This inordinately strict standard has masqueraded as being similar to that applied by the Federal cour ts.
See Northern Indiana Public Service Co.. Baill Generatin Station, Nuclear-l, ALAB-227, 8 AEC 416 (1974), citing Unarco Industries, Inc. v.
Evans Products Com an
, 403 F.2d 638 (7th Cir. 1968) and
~Kni ht v. Harsh, 313 F.2d 879 (D.C. Cir.
1963).
However, it is clear that Wolf Creek. in fact exaggerates this standard.
As applied to NRC., Unarco indicates that the proponent of a motion to reopen and remand a licensing proceeding should not be required to make more than a ~rima facie showing that a different result wou'Id have been reached had the new evidence been available.
The result in
~Kni ht is consistent with this approach.
The Commission has.agreed that a generic review of this issue is appropriate, and, accordingly, has so directed the staff.
- However, until that review is completed, litigants and hearing boards must inter-pret an unduly burdensome and possibly transitory standard, a result which would have been avoided had the Commission decided to address this issue directly in this case.
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'~a.ilSS ION In the Ma"ter of
)
)
C='.ROLINA POMR AND LIGHT COMPANY )
)
(Shearon Harris Nuclear Power
)
Plant, Units 1, 2, 3, and 4)
)
)
)
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Docket No.(s) 50-400 50-401 50-402 50-403 CERTIFICATE 0:
SERVICE I hereby certi=y that I have this dav served the foregoing aocumen" (s) upon each person designa"ed on the official sew ice'list co=piled oy the Of=ice of tne Secretary. of the Commission in this p"oce ding in accordance with tne recuirements of Section 2.712 of 10 CFR Part, 2
R les o= Practice, of the Nuclea Regulatory Corzission's Rules an" Regulations, Datec a-
. ashing"on, D.C. this dav cf Ad~
r Offic of tne Secretary of the omission
ViI ED ST='TES OF A~%RICA
'?')VC:E='8 REGULATORY CO!PASSION (She+ron-Fur is Zuclea" Pi~ver
- Plants, Units '-4)
In tne 'Ymtter of
)
)
CARO L'iA POR:"R A'iD LIG"-T CO~PA'.iY )
)
)
)
Docket No.(s) 50-400 50-401 50-402 50-403 SERVICE LIST Ivzr V. Smite, Esq.,
6=airman Ator='c Safet-
=-sd Lice"s=ng Board i..S.
?i'.c ear R=g"lator
~ Cormission
'~ash='n-ton, 3.C.
20555 Richard E. Jones, Esq.
Carolina Power and Light Company P.O.
Box 1551 Raleigh, North Carolina 27602
."!r.
".1ann 0.
B=ight Atom c Safety and Lice=s=ng Board U.S.
N'c ear Regulator
~ Commission i~ash=n" ton, 3.".
20:5=
Dr..7.
Lee" s, r.
Rice i:=iversit-P.O.
Bcx 1892 Eous =o", Texas, 700:
George F. Trowbridge, Esq.
Ernest L. Blake, Jr.,
Esq.
Shaw, Pittman, Potts
& Trovbridge 1800
'<?" Street, N.ii.
$lashington, D. C.
20006 Thomas S. Erwin, Esq.
P.O.
Box 928
- Raleigh, North Carolina 27602
~ ~
Co nse
=o
'Z.C Sta
=
O =ice o= the =zecut va Legal Director
'.. c" ear Regulator-Cozxission
'..ash='n"-tcn, D. C.
2055
~ar S
=osa t.-a-E-a.,
Chair;.ar; Atcr =c Safety and ce=s=ng Appeal Bc =r i..P.
c ear Razu.lator-Conmission
'.;ash=n"=ten, 3.:.
2055=
Dr.
o=-n H. 3uck Atcm=c Safet-.
and Lice=s=ng Appeal Boa re i.,S.
c ear Ragc~ztor.-
Commission i;ashingtcn, ~..
20a5;
".~ chae C. Far"ar)
Esc.
Atc-..=c Safet-an Lice=s='ng. Appeal c=r i:. S..'..c ear Regulator
~ Cormission A
- ,.asr; ngtcn) 3 ~ i ~
2033:
Dennis P. Hyers, Esq.
Attorney General's Office P.O.
Box 629
- Raleigh, North Carolina 27602 ilells "ddle~n Route 1, Box 183 Du=':.an) North Carolina 27/03
?.ud u Alliance Box 3v36 Chapel :;ill, North Carolin-27514
~'.r.
O.
Gene Abston, Acting Director Office of Inspector and Auditor U.S. Nuclear Regulatory Co~ission 4'ashington)
D.C.
20555
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Michael C. Farrar
~gP, 0~ ~'gag,
~
)q7+V'g lb+ ~~'jgE g
In the Matter of CAROLINA POWER AND LIGHT COMPANY
\\
(Shearon Harris Nuclear. Power
'lant, Units 1, 2,
3, and 4)
)
)
')
)
)
)
)
)
Docket Nos.
50-400'0-401 50-402 50-403 MEMORANDUM October 12, 1979 In its supp~ental initial decision issued on July 13, 1979, the Licensing Board concluded that the constructs.on 1/
permits previously issued for the four units of the Shearon Harris nuclear facility "should be conditioned to require that
[the applicant Carolina Power and Light Company]
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".
10 NRC at (slip"opinion,'.
- 9).
In other. words, the Board determined that, with respect to the management capability or technical qualifications issue, 1/
LBP-79-19, 10 NRC
the public interest required a hearing at the operating license stage.
Id. at (slip opinion, p. 124);
see 10 C.F.R. 2.104(a). It embodied its determination in the fol-lowing condition (id. at (slip opinion, p. 125)):
At an appropriate time during the review of the application for the operating li-cense of the Shearon Harris Nuclear Power
- Plant, the Staff shall implement the nec-essary actions to enable the Secretary to issue a notice of hearing on said applica-tion to be published in the Federal Register required under 10 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 addi-tion to any other matter which may be in controversy) whether'the Applicant has the management capability and is technically qualified to engage in the activities to be authorized by the operating license in ac-cordance with the regulations of 10 CFR Chapter'.
The NRC staff filed an exception to that condition on the ground that it was in excess of the Licensing Board's "jurisdiction and authority".
The brief in support, of that exception was filed and served on September 4, 1979.2/
The time provided by 10 CFR 2.762(b) for the filing and service of responsive briefs has now expired.
None of the 2/
In that brief, the staff also discussed (as requested by us in an August 2 order) its standing to complain of the condition in issue.
We have now tentatively concluded that the staff does have such standing.
We will address that point in our later opinion devoted to the merits of the appeal.
other parties to the proceeding chose to submit such a brief (although the applicant did advise us by letter, without elaboration, that it regards the staff's exception to be well-taken).
Thus, the staff's attack. upon the Licensing Board's action has gone unanswered.
It does not necessarily follow, of course, that the staff is right in arguing that the Board below exceeded its authority.
Contest or not, it remains our obligation to de-cide the question.
In discharging this responsibility (and particularly in light of the absence of a contest), it would be helpful to have at hand the considerations which led the Licensing Board to conclude that it. possessed the authority to impose the condition in issue.
Although the Board did not explicitly so state in the supplemental initial decision, it obviously must have been satisfied that such authority existed.
Indeed, it ma'y reasonably be inferred from the Board's election not to address specifically the authority question that it thought the matter to be free of all doubt.
Accordingly, we now invite the Board to furnish us with its views.
In recognition of the fact that its members may 3/
well have existing commitments of a pressing nature, and 3/
Among other things, the Chairman of the Board below is also the Chairman of the Licensing Board recently con-vened in the new proceeding involving Unit No. l of the Three Mile Island facility.
the additional fact that the appeal before us seemingly need not receive urgent resolution, we do not ask for 4/
those views by any particular date.
We have no doubt that the Board will supply them as soon as practicable given the other matters which require the prompt attention of its members.
FOR THE APPEAL BOARD E
C. Je Bishop Secret ry to the Appeal Board 4/
Zt likely will be some time before the Shearon Harris facility will be ready for consideration for an operating license..
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