ML18017A833
| ML18017A833 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 02/20/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CAROLINA POWER & LIGHT CO. |
| References | |
| NUDOCS 8002270011 | |
| Download: ML18017A833 (19) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck Michael C. Farrar 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 50-403 Messrs.
George, F. Trowbridge and John H.
O'Nexll, Jr.,
Wash>.ngton, D. C., for the applicant, Carolina Power and Light Company.
MEMORANDUM AND ORDER
'ebruary 20, 1980 (ALAB&81)
In ALAB-577, ll NRC (January 29, 1980), ruling upon the appeal of the NRC staff, we struck down a condition which had been imposed by the Licensing Board upon the construction permits for the Shearon Harris facility. 1/
~ In its stead, we 1 y LBP-79-19, 10 NRC 37, 98 (1979).
instructed the staff to take certain action.
The applicant, which was not a party to the appeal, now moves us to amend 2 /
our instructions.
We deny the motion.
A.
In order to put the applicant's motion in proper per-
- spective, we start with a summary of the action taken by us in ALAB-577.
The Licensing Board condition there in issue would have required the staff, upon the filing.of an application for operating licenses'or the facility, to trigger an evidentiary hearing.for..the.purpose of exploring further..the applicant's capabi'lity. to manage'plant operati'on.
See'l'RC at:
(slip opinion, p.
- 8).
Agreeing with the staff, we determined that the Board below had exceeded its jurisdiction.
Id. at (slip opinion, p.
- 23).
More particularly, upon analysis of the licensing scheme established by the Atomic Energy Act and implemented in the Commission's Rules of Practice, we concluded that construction I
permit licensing boards have not been clothed with explicit or implicit authority to order a hearing at the operating license stage.
- Rather, an operating license hearing can be initiated in only two ways -- neither of which involves the construction 2/
See p. 6, infra.
permit board.
First, the Commission itself may make a specific finding, pursuant to Section 2.104(a) of'he Rules of Practice, 10 CFR 2.104(a), that a hearing "is required in the public in-terest".
(In that regard, we found the contemplation of Sec-tion 2.104(a) to be that such a finding will be made only after the operating license application has been filed and will be based upon the content of that application together with any other current available information.)
- Second, any interested person may seek a hearing by filing an intervention petition in response to the mandatory notice of opportunity for hearing which is published after the operating license application has been docketed; if the petition is granted, a licensing board will be convened to hear those matters which the petitioner has put into controversy.
11 NRC at (slip opinion, pp. 13-23).
Although, for these
- reasons, we were constrained to remove the condition from the construction permits, we could not allow V
the matter to rest at that.
The concerns that had led the Licensing Board to impose the condition remained undisturbed, notwithstanding that its chosen remedy had been held invalid.
On the basis of the evidentiary record before it, that Board had found -- and justifiably so -- that the management of the applicant's now-operating plants over a period of several years
had left much to be desired.
To be sure, the applicant had insisted that it had taken effective action to cure the de-ficiencies and the staff had expressed the belief that there had been considerable improvement in the applicant's opera-tions.
Nonetheless, the Board was unprepared -- also with good reason,--
to say that all doubt had been removed regard-ing the applicant's capability facility properly once it were to manage the Shearon Harris brought on line.
Confronted with these circumstances, we set about the task of fashioning an alternate remedy.
We desired that remedy first to insure that the spotlight would be focused on the management capability question when the facility came under consideration for an operating license.
Nore importantly, the remedy had to give effect to our ruling that it, is for the Commission itself -- and not an adjudi-catory board -- to decide whether, in "the public interest",
a hearing should be held on that question even if one were not requested by an interested person.
As it. turned out, our task proved to be a simple one.
We devised a substitute for the Licensing Board's condition n
which, at one and the same time, (1) not merely acknowledged, but facilitated the exercise of, the Commission's singular I
authority to order an operating license hearing in the public
interest; and (2) imposed no new substantive obligation upon the staff (or indeed anyone else).
Specifically, we directed the staff to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in con-nection 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 informa-tion then at its disposal),
a preliminary evaluation of the applicant's capability to manage the operation of the facility in con-formity with all regulatory requirements 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 pub-licly 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 ini-tial 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) se't forth the man-ner in which a copy of that. analysis may be obtained or examined.
ll NRC at (slip opinion, pp.
35-36).
We need. not rehearse in detail here the reasons why this direction meets our several objectives; those reasons are amply developed in ALAB-577.
See ll NRC at (slip opinion, pp.
26-33).
For present purposes, it is enough to stress anew that, if the staff conducts its preliminary evaluation of the appli-cant's managerial capability at the very inception of the operating license review process (rather than much later as would otherwise be the case),
the Commission will be able to resort to the product of that evaluation in deciding whether to order a hearing on its own initiative.
And that the Commission may find the staff's analysis to be helpful'carcely requires elaboration.
Indeed, it is difficult to see how the Commission might reach an informed conclusion respecting the public in-terest necessity for a hearing on the management capability issue without having the benefit of the staff's expert judg-ment.
B.
We are told by the applicant that, notwithstanding its agreement "in principle" with the staff's challenge to the Licensing Board's condition, it elected not to contest the condition itself because it anticipated that a hearing at the operating license stage would be held in any event.
- Motion, p.
2, fn. 4.
But, although not questioning our authority to issue the substitute directive, the applicant nonetheless finds
it to be troublesome.
Specifically, it objects to the issuance of the notice of opportunity for hearing on the operating license application being deferred until after the staff's preliminary evaluation on the management capability matter has been completed.
- Because, in its view, "this requirement may unnecessarily delay other unrelated activities necessary to obtaining" an operating
- license, the applicant proposes that we modify our instructions to the staff such that the notice of opportunity for hear-ing would be published as soon as practicable after the OL application is docketed as re-quired by 52.105(a)(4).
However, to accom-plish the Appeal Board's objective, the notice of opportunity for hearing would state addi-tionally (1) that the Staff had been instructed to perform an evaluation of Applicant's manage-ment capability; (2) that a notice will be published in the Federal Re ister upon comple-tion of the Staff's evaluation;
- 3) that the notice will set forth the manner in which a'opy of the Staff's evaluation may be obtained or examined; (4) that the public will then have an additional thirty days in which.to petition to intervene and request a hearing in the Harris OL proceeding on the sole issue of Applicant's management. capability and techni-cal qualifications; and (5) that any peti-tioner already admitted as a party to the Harris OL proceeding, and who has not already established a contention on management capa-bility, will then have thirty days in which to petition to expand his contentions to include a contention on Applicant's manage-ment capability or technical qualifications.
Motion, pp.
3-4 (footnote omitted).
As the applicant sees it, this modification "willminimize the risk of delay in obtaining an" operating license without
'nterfering with the objectives we sought. to achieve in ALAB-577.
In this connection, it emphasizes that the proviso would still enable the, Commission and interested members of the public to abide the event of the publication of the staff's findings and conclusions before deciding whether to order or petition for a 3 /
hearing on the management capability issue.
Motion; p.
6.
l.
Our initial difficultywith the proposed modification relates to the premise underlying the assertion that it. is needed.
It may well be, as the applicant insists, that there are good reasons why any adjudicatory proceeding on its operat-ing license application for the Shearon Harris facility-should be concluded before June 1983 -- when Unit 1 is now scheduled for initial core fuel loading.
Motion, pp. 4-5.
What is less
- clear, however, is that our direction to the staff might inter-fere with the achievement of that goal.
3/
In ALAB-577, we noted the desirability of having, the fruits of the staff's early preliminary evaluation available not merely to the Commission but, as well, to the public'for its use in determining whether to seek a hearing (should the Commission not order one).
See ll NRC at (slip opinion, pp.
29, 32).
According to the applicant, it recently informed the staff that it intends to file the'perating license application, in-cluding the Final Safety Analysis Report, in June of this year.
4 /
If it does so, the staff justifiably could be expected, in the exercise of appropriate diligence, to comply with our present instructions in time to enable its issuance of the notice of opportunity for hearing by early Fall at. the latest.
In this connection, as we expressly stated in ALAB-577, what is being required of the staff prior to issuance of that.
tent of the operating license application and supporting documentation; and (2) any other pertinent information then at its disposal.
See p.
5,.~su 'ra.
If the applicant properly 5/
discharges its own responsibilities in the matter, the 4/
This representation is confirmed in the January 16, 1980 memorandum of NRC staff member Olan D. Parr, summarizing the discussion at a meeting between the staff and the applicant held on January 10, 1980 on the subject of the tendering of the application.
A copy of that memorandum was appended to the appli-cant' motion.
5/ If it does not, it will have little cause for complaint about potential delay.
10 application and supporting documentation should provide the staff with all the information needed to make rapidly a tentative assessment, of the sufficiency of what the appli-cant has done (and plans to do) to insure the requisite managerial and administrative controls to assure safe Shearon Harris operation.
See 11 NRC at (slip opinion,
)
6/
p
)-
- 31).
- Moreover, as also alluded to in ALAB-577, the staff will have immediately at hand the reports of the resident NRC inspectors assigned to the applicant's Brunswick facility.
Ibid.
These reports undoubtedly will allow an equally expeditious appraisal of the extent to which the applicant has overcome the management problems at that facility which gave rise to the Licensing Board's (and our) concerns.
In short, they will give the staff an insight into whether the applicant's management.
expectations for Shearon Harris are matched by its recent performance at Brunswick.
6/
Even were there no requirement of an early preliminary staff evaluation, the applicant nonetheless would be well-.advised to take considerable pains to establish that, the prior operating history at its other plants notwithstanding, the Shearon Harris facility will be satisfactorily managed.
11 2.
The foregoing considerations to one side, the applicant's proposed modification suffers from at least one serious infirmityan infirmity which, ironically, might bring about the very delay which the applicant wishes to avoid.
If required to evaluate the applicant's management capability as a condition precedeht to its issuance of the notice of opportunity for hearing, the staff will have a strong incen-tive to embark upon that. task expeditiously.
No equivalent incentive would exist,
- however, were the staff now to be given the green light to issue the notice promptly upon the docketing of the operating license application.
True enough, the staff might nonetheless turn to the management 'ca'pabi'lity matter with alacrity.
But, then again, it might choose instead to assign it a relatively low priority. If the latter proved to be the case, the consequence could be that the opportunity provided by the applicant's proposal for the filing of new intervention petitions or expanded contentions (addressed to the management capability issue) would not arise until an adjudicatory proceeding convened to hear other issues was well underway.
The mere possibility of a lengthy deferral of staff--
and thus Commission and public -- consideration of the manage-ment capability issue is cause enough not to adopt the appli-cant's proposal.
As earlier noted (p.
4,
~su ra),
we think
12 that, given the applicant s prior operating history, it is essential that particular attention be accorded that, issue in connection with the licensing of Shearon Harris operation.
This is best accomplished by having it singled out for early staff examination -- fo'llowed by a prompt report. to the Commission and the public alike. If these measures are undertaken prior to rather than conceivably long after--
any adjudicatory proceeding is initiated, the danger that, the issue might become sidetracked along the way is substantially diminished.
The applicant '
motion for modification of ALAB-577 is denied.
It is so ORDERED.
FOR THE APPEAL BOARD C. Jea Bishop Secreta y to the Appeal Board
0
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMl'1ISS ION COMMISSIONERS:
John F. Ahearne, Chairman Victor Gilinsky Richard T.
Kennedy Joseph M. Hendrie Peter A. Bradford ygO poC+
gG 6
(gQV'
/
g(Q
/p
)
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 50-403 ORDER Pursuant to 10 CFR 2.772, the time within which the. Commission may act upon or grant the petition to review ALAB-577 is extended to expire coex-tensively with the review times for ALAB-581, dated February 20, 1980.
10 CFR 2.786(a), (b).
It is so ORDERED.
For he Commiss bn Dated at'Washington, DC, this~
day of February, 1980.
SAMUEL J.
CPILK Secretary of the Commission
~l
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO~DiISS ION In the Matter of
')
)
CAROLINA POWER AND LIGHT COMPANY )
Docket No. (s) 50-400 50-401 (Shearon Harris Nuclear Power
)
50-402 Plant,. Units 1, 2, 3, and.4)
)
50-403
)
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing 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 Qshington, Q.C. this day of~
1~.
Office f the Secretary of the Commission
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
CAROLINA POWER AND LIGHT COMPANY )
)
(Shearon-Harris Nuclear Paver
)
Plants, Units 1-4)
)
SERVICE LIST Ivan W. Smith, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington,.D.C.
,20555 Mr. Glenn 0. Bright Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. J.V. Leeds, Jr.
Rice University P.O.
Box 1892
- Houston, Texas 77001 Docket No.(s) 50-400 50-401 50-402 50-403 Richard E. Jones, Esq.
Carolina Power and Light Company P.O.
Box 1551 Raleigh, North Carolina 27602 Thomas S. Erwin, Esq.
P.O.
Box 928 Raleigh, North Carolina 29602 Geor'ge F. Trowbridge, Esq.
Erne'st L. Blake, Jr.,
Esq.
Shaw, Pittman, Potts
& Trowbridge 1800 "M" Street, N.W.
Washington, D.C.
20006 Kudzu Alliance
'Box 3036 Chapel Hill, North Carolina 27514 Michael C., Farrar, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C 20555 Counsel for NRC Staff Office of the Executive Legal Director D~~~i~ P Myers Esq U.S. Nuclear Regulatory Commission Attorney GeneralTs Office Washington, D.C.
20555 Raleigh, North Carolina 27602 Alan S. Rosanthal, Esq.,
Chairman Atomic Safety and Licensing APPeal Mr. O.
Gene Abston, Acting Director Board Office of Inspector and Auditor U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Dr. John H. Buck Mr. Wells Eddleman Atomic Safety and Licensing Appeal Route 1, Box 183 Durham, North Carolina 27705 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
~A
~ o