ML18017A827
| ML18017A827 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/13/1980 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-577, NUDOCS 8002210501 | |
| Download: ML18017A827 (18) | |
Text
02/13/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Natter of CAROLINA POWER AND LIGHT COMPANY (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4) t Docket Nos.
50-400 50-401 50-402 50-403 PETITION FOR REVIEW The Nuclear Regulatory Commission Staff hereby petitions the Commission, pursuant to 10 CFR 2.786, for review of the Atomic Safe'ty and Licensing Appeal Board decision of January 29, 1980 (ALAB-577), in this proceeding on the ground that the directions given to the Staff were beyond the Board's jurisdiction and erroneously usurp and erode the powers of the Commission itself, not only to control the initiation of its adjudicatory processes, but also, to supervise the Staff's future review of an as yet unfiled operating license application.
Commission review is appropriate because the instant decision unsupported by any precedent--raises an important policy issue which will certainly recur if it is permitted to stand.
e Jur1sdictlonal issue raised in this petition was not, and could not have
- been, raised before the Appeal Board because the Appeal Board action complained of was taken soa ~sonte after a finding in the Staff's favor on the only issue before the Appeal Board.
ALAB-577, Slip Op at 26.
8002210 g 0 f
The Staff believes that the Appeal Board was understandably and commendably concerned (as is the Staff) about the management capability of the Applicant.
It was clearly this concern which led to the extraordinary direction to the Staff as to which review is now sought because of the manifestly unacceptable p
4 til ipii ti f
h 4 ii i ~d1 dj aditi sense.
The Staff emphasizes, however, that it does not object to the substance of what the Appeal Board, without authority, has ordered, and suggests that the Commission itself, which alone has the necessary authority, provide similar guidance to the Staff.
Such action by the Commission would be consonant with the recent recommendations of both the President's Comoission and the NRC Special Inquiry Group that the Commission become significantly more involved in the licensing process.
SUMMARY
OF DECISION ON WHICH REYIEW IS SOUGHT This proceeding involves a remanded construction permit application hearing that focused on the management capability of the Applicant to construct and operate the four Shearon Harris nuclear generating units.
Upon conclusion 2/
of the hearing, the Atomic Safety and Licensing Board ordered that previously issued construction permits be conditioned to require that hearings be held at the operating license stage to further consider the managerial ability of Q2 The original Licensing Board decision was issued in January,
- 1978, LBP-78-4, 7
It was affirmed by the Appeal Board.
ALAB-490, 8
NRC 234 (1978).
Because of concerns raised by the Licensing Board with the management capability of the Applicant after the Appeal Board
- decision, the Commission remanded the proceeding to the Licensing Board to consider that matter.
CLI-78-18 (1978).
the Applicant to operate the facilities.
LBP-79-19, 10 NRC 37, 98 (1979).
Ruling on an appeal by the Staff, the Appeal Board vacated this condition.
It recognized that the Licensing Board considering construction permit applications did not have the authority to order hearings on as yet unsought operating licenses..
However, the Appeal Board, in what the Staff views as error, prescribed specific procedures for the Staff's review of the operating license applications when filed, and provided for the giving of notice of an opportunity for hearing on such applications in a manner and at a time at variance with that generally described in Commission regulations.
Specifi-cally, the Appeal Board directed the Staff to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in connection with any application which may be filed for operating licenses for the Shearon Harris facility unless and until:
(1) The staff has conducted, on the basis of the content of the operating license application and supporting documentation (together with any other pertinent information then at its disposal),
a pre-liminary evaluation of the applicant's capability to manage the operation of the facility in conformity with all regulatory require-ments which have or may be imposed in the interest of the protection of the public health and safety; and (2) The findings and conclusions reached upon that evaluation have been (a) made publicly available in written form; and (b) brought specifically to the attention of the Commission with an accompanying reference to both the Licensing Board's supplemental initial decision and our decision today.
It is further directed that, pursuant to 10 CFR 2.105(b)(2),
the notice of opportunity for hearing (if one is issued) set forth the manner in which a copy of that analysis may be obtained or examined.
r
THE ACTION OF THE APPEAL BOARD WAS ERRONEOUS A.
The A
eal Board misa rehended the extent of its 'urisdiction The Appeal Board ruled, as the Staff had asked it to, that the construction permit Licensing Board had no authority to initiate an adjudicatory proceed-ing at the operating licensing stage.
This necessarily followed from the Commission's decision in Florida Power and Li ht Com an (Turkey Point Nuclear Generating Units 3 and 4),
4 AEC 9, 15 (1967) and the prior decision of the Appeal Board itself in Houston Li htin and Power Co.
(South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (1977).
The Appeal Board then proceeded, however, to prescribe both the nature of the Staff review of an operating license application in this proceeding and the content and timing of the notice of opportunity for hearing, thus usurping Commission s
reserved powers over pre-adjudicatory reviews of license applications for licenses and over the initiation of adjudicatory proceedings.
The powers of the Appeal Board, while broader than those of the Licensing
- Board, are limited to those conferred upon it by the Commission, by regula-tion, general delegation or specific order.
It is readily apparent that an Appeal Board's authority extends only to the proceeding before it and not to some future proceeding.+
10 CFR 2.785 provides that the Appeal Board is to "exercize the authority and perform the review functions which would otherwise h
b i dby h
C i
i i (l)~dl Q3 Jurisdiction over a proceeding cannot attach until the proceeding commences, which, in the case of an operating license proceeding, occurs when the notice of proposed action pursuant to 10 CFR 2.105 is issued.
for licenses under Part 50 of this chapter...." (Emphasis added.)
Identical language in NRC Manual issuance 0107 (December 19, 1975) is followed by a specific limitation: "Appeal Boards exercise their authority and perform their functions subject to the provisions and limitations of 10 CFR Part 2, as referenced in 10 CFR 2.785(c)."
Nothing in Part 2, of which we are
- aware, can reasonably be construed to extend the authority of the Appeal Board beyond the scope of the proceeding before it, i.e., in this case, the construction permit proceeding.
The Appeal Board, like the Licensing Board, specifically recognized that the record demonstrated that the Appli-cant possesses the requisite "management capability and technical qualifica-tions to design and construct" the Shearon Harris facility, and accordingly let the construction permit remain in effect.
(ALAB-577, slip op. at 33, 35-36; L8P-78-19,
~so ra, 10 RRC at 99).
The relief ordered was simply not directly related to the construction permit proceeding;
- indeed, the Licensing Board's conditioning of the construction permit was voided for that very reason.
In Offshore Power S stems (Floating Nuclear Plant),
ALAB-489, 8 NRC 194, 201-208 (1978), the lack of an adjudicatory board's authority to direct the r
work of other components of the Commission, except as it affected the adjudi-cation directly before the board, was emphasized.
See Northeast Nuclear e
ppeal Board found "no occasion to dwell at length on [itsj authority to order this relief in the exercise of the Commission's review functions delegated to [itj in 10 CFR 2.785(a)."
It specifically invited the Staff "to seek the intercession of the Commission" if the Staff disagreed as to the scope of the Board's authority.
ALAB-577, slip op. at 33, n. 33.
Seamy Co.
(Montague Nuclear Powec Station, Units 1 ll 2), LBP-75-19, 1
NRC
- 436, 437 (1975).
In Arkansas Power
& Li ht Co.
(Arkansas Nuclear One, Unit. 2, ALAB-94, 6 AEC 25, 30-31, 1973), it was held that an adjudicatory board could not issue a recommendation, let alone a direction, the Staff with respect to a license application not directly under review in the adjudication before the board.
The Appeal Board stated (6 AEC at 31):
In short, we do not look upon the recommendation as involving an attempt to offer a premature judgment of issues on the basis of a still incomplete record.
At the same time, although not totally unsympathetic to the Board's underlying motivation in doing so, we find ourselves unable to endorse the practice of including in an initial decision the consideration of matters which are patently beyond the ambit of the jurisdiction of the tribunal issuing the decision.
In this particular instance, to be sure, it is diffi-cult to foresee any harm flowing from the Board's action in stepping outside the bounds of its assigned area of inquiry--i.e.,
whether and on what conditions a construction rmit should issue for Unit 2.
But such may not always be the case.
Whenever an adjudicatory body seeks to supply answers to questions which are not posed by the litigation before it, and to which the record in the proceeding is not addressed, there is at minimum an enlarged potential for an err'oneous conclusion.
While the Commission could require the Staff to take such action, it was beyond the power of an adjudicatory board to recommend it.
See also, Florida Power Cor
. (Crystal River Unit 3 Nuclear Generating P'lant),
4 AEC
- 318, 322 (Commission, 1970); Unit No. 2), ALAB-240, 8 AEC 829, 839 (1974).
Although adjudicatory boards may put substantive conditions in a license or a permit, they cannot assume the Commission's function of directing other components of the Commission in the performance of their complementary safety review functions after termination of the proceeding before them or assume the Commission's function of providing for review of applications not under the board's purview.
Du uesne Li ht Co.
(Beaver Valley Power Station, Unit No. 2), ALAB-240, 8 AEC 829, 839 (1974); Public Service Co. of New
~Ham shire (Seabrook
- Station, Units 1
& 2),
ALAB 536, 4
NRC 525, 536 (1976).
Here the Appeal Board recognized that the Licensing Board had no authority to require an operating license hearing after it had authorized a construc-tion permit.
However, the Appeal Board itself erred in mandating procedures to be followed by the Staff, after issuance of the construction permit, in the review of another application over which it now has no jurisdiction.
While the manner chosen by each to accomplish the objective is different, the actions of both the Licensing and Appeal Bords have the effect of usurping the powers of the Commission to control Staff action outside the adjudicatory context.
B.
An Im rtant Polic Issue is Raised b
the Decision of the A
eal Board As indicated
- above, the Staff generally agrees with the substantive of the approach the course commanded by the Appeal Board in this case.
That may 5/
g5 We do have some concern, however, that the Appeal Board's order requiring Staff "findings and conclusions" on the management capability of. the Applicant before the public is informed of the docketing of the applica-tion is inconsistent with established Commission policy of encouraging an opportunity for the public to observe and participate in the licensing process at its early stages.
See, e.g.,
"Recommendation for Improving Nuclear Power Plant Licensing,"
43 Fed.
- Reg, 29082 (October 22, 1978).
See also, 10 CFR 2.105(a), calling for issuance of a notice of oppor-tunity for hearing "as soon as practicable after the application has been docketed."
The additional pre-docketing activity mandated by the Appeal Board will eventually delay both docketing and the issuance of a notice of opportunity for hearing.
not always be the case, however.
If this precedent for Appeal Board assump-tion of supervisory authority over Staff review practices during the period between construction permit issuance and docketing of the operating license application is permitted to stand, it will surely be used again.
It was for just that reason that the Appeal Board entertained the Staff's exceptions to the Licensing Board decision in this case:
[T]he jurisdictional question which the staff would have us decide cannot be dismissed as of little or no precedential importance.
To the contrary, there is a reasonable probability that, if permitted to stand, the remedy chosen by this Licensing Board will be invoked by future construction permit boards entertaining similar..doubts regarding the ability of an applicant to meet all regulatory require-ments associated with later reactor operation.
ALAB-577, slip op.
at 12.
The Staff recognizes the importance of the concerns which prompted the Appeal Board to act as it did here.
As a matter of sound policy, the Appeal Board should not be without effective recourse when it harbors such concerns.
No such void exists, however; the Appeal Board, when confronted with concerns beyond its jurisdiction, can always bring the matter to the attention of the Commission.
In Florida Power
& Li ht Co. (St.
Lucie Nuclear Power Plant, Unit No. 2), ALAB-553, 10 NRC 12, 14 (1979),
the Board notified the Commis-sion of delay of the Staff in the preparation of testimony, observing that that the Commission could to allocate Staff resources if it believed that Staff priorities were not prudent.
See Offshore Power S stems,
~su ra at
- p. 207.
In this very proceeding, the Commission acted on an adjudicatory board's belief that further hearings were needed and provided for them.
See
Such a referral by the Appeal Board would be 6/
fully consistent with the objective of greater Commission involvement in the licensing process.
See, e.g.,
10 CFR Part 2, Appendix B, 44 Fed.
Reg.
65049 (November 9, 1979);
Ro ovin Three Mile Island, Re ort to the Commissioners and the Public, 1980, Vol. I pp. 140-41;
- Kemeny, Re or t of the President's Commission on the Accident at Three Mile Island,
- 1979,
- p. 51; NUREG-0648, Stud of the Nuclear Re ulator Commission's A
llate S stem, pp. 51-52.
Conversely, by asserting unprecedented supervisory authority over the Staff, the Appeal Board has succeeded only in further removing the Commission from the licensing process.
CONCLUSION The Commission should review ALAB-577, as the Appeal Board has usurped powers that the Commission has reserved to itself to supervise other compo-nents of the Commission to see that the public health and safety is protected and to act on matters not under adjudication.
In so doing, it ignored the Q6 The Commission can, of course, set a hearing on the operating license application to consider the management capability of the Applicant or any other issue whether or not any person intervenes.
10 CFR 2.104(a) and 2.155(a).
The Commission sua ~sonte set a hearing on a provisional operating license application prior to any intervention in Northern States Power Co. (Nonticello Nuclear Generating Plant, Unit~1, Docket No. 50-263, unreported "Notice of Hear ing on Application for a Prov is-ional Operating License" dated March 9, 1970.
established and fully effective alternative of referring to the Commission, for such action as the Commission might deem appropriate, the matter which, though outside its jurisdiction, was of legitimate and commendable concern.
Respectful ly submitted, Dated at Bethesda, Maryland this 13th day of February, 1980 Edwin J.
eis Assist t Chief Hearing Counsel
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION "BEFORE 'HE 'COMMISSION In the Matter of CAROLINA POWER AND LIGHT COMPANY (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4)
Docket Nos.
50-400 50-401 50-402
$0-403 CERTIFICATE OF SERVICE
~ I hereby certify that copies of "PETITION FOR REVIEW" 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 13th day of
- February, 1980:
"Alan S. Rosenthal, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.
C. 20555
- Dr. John H. Buck Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Ivan W. Smith, Esq.
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Mr. Glenn 0. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. J.
V. Leeds, Jr.
10807 Atwell Drive
- Houston, Texas 77096 Richard E. Jones, Esq.
Associate General Counsel Carolina Power 5 Light Company 336 Fayetteville Street Raleigh, North Carolina 27602 Thomas Erwin, Esq.
115 West Morgan Street Raleigh, North Carolina 27602 Wake County Public Library 104 Fayetteville Street Raleigh, North Carolina 27601 George F. Trowbridge, Esq.
Shaw, Pittman, Potts 8 Trowbridge.
1800 M Street, N.W.
Washington, D. C. 20036 M. David Gordon Associate Attorney General State of North Carolina P.O.
Box 629
- Raleigh, North Carolina 27602 "Atomic Safety and Licensing Appeal Board
'.S.
Nuclear Regulatory Commission Washington, D.
C. 20555 "Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C. 20555
- Docketing and Service Section
'ffice of the Secretary U.S. Nuclear Regulatory Commission Washington, D. C. 20555
- Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC'0555 Edwin J.
Rei Assistant ief Hearing Counsel