ML18017B042
| ML18017B042 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 04/17/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-577, ALAB-581, CLI-80-12, NUDOCS 8004280178 | |
| Download: ML18017B042 (16) | |
Text
- 0 UNITED STATES OF AMERICA NUCLEAR REGULATORY CO)1t1ISS ION COMt~iISS IONERS:
John F. Ahearne, Chairman Yictor Gilinsky Richard T.
Kennedy Joseph M. Hendrie Peter A. Bradford go"LET=-o vsHF" I
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ppeHC<~~
~
In the Matter of CAROLINA POWER 5 LIGHT CO.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4)
Docket Nos.
50-400 50-401 50-402 50-403 MEMORANDUM AND ORDER In September 1978, the Commission's attention was drawn by the Atomic Safety and Licensing Board in this proceeding to serious concerns about the completeness of the administrative record on the. issue of Carolina Power 8
Light Company's management qualifications with respect to the Shearon Harris facility.
The Commission found that the Licensing Board raised a serious question regarding the integrity of the administrative process and remanded that issue "for a further hearing on the management capability of [the appli-cant] to construct and operate the proposed Shearon Harris facility without undue risk to the health and safety of the public."
CLI-78-18, 8
NRC 293 294 (1978).
The Licensing Board has concluded hearings on the issue and approved the applicant's management capability to construct.,the facility properly.
The Atomic Safety and Licensing Appeal Board has affirmed the Licensing Board's determinations on the merits.
ALAB-577, 11= NRC (January 29, 1900).
flo party to the proceeding 'has
2 dis'puted the correctness of that determination.
The Commission likewise has no reason to disturb that conclusion.
The current dispute involves the question of what steps the NRC staff ought to take wi th respect to the management qualifications issue at the time the Harris operating license application is filed.
The Licensing Board had sufficient residual doubt concerning applicant's management capability to operate the Harris'facility that it ordered a hearing held at the operating license stage on that issue.
~su ra 10,,NRC at 43, 98-99.
The staff appealed, arguing that the Licensing Board lacked authority to order a
hearing in the operating license proceeding.
The Appeal Board agreed with the staff, finding that the Licensing Board y
for that construction permit proceeding lacked the authority, in the regula-tions or in the Commission's delegation to it,'o order a hearing at the
~
operating license stage.
Thus, the Appeal Board vacated the Licensing Board's condition on the construction permits which would have required an operating license hearing.
However., the Appeal Board directed the staff to conduct a
preliminary assessment on'the management qualifications issue in the operat-ing license application and provide the same to the Commission and include it in the Federal
~Re ister notice of Opportunity for hearing.
ALAB-577, ~su ra, slip op. at 35-36.
The NRC staff petitioned for review, urging that the Commission upset the Appeal Board-imposed requirement because.
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'1 staff did not object to the substance of what the Appeal Board had ordered and suggested that the Commission itself provide similar directions to the staf
For its part; the applicant moved the Appeal Board to reconsider its action, believing that it would delay processing of the operating license application.
The Appeal Board disagreed and denied the motion.
ALAB-581, ll NRC (February 20, 1980).
The Commission consolidated its consideration of this decision with ALAB-577.
Commission Order, extending time (Febru-ary 21, 1980).
The applicant petitioned for review of ALAB-581.
In addition to advancing a position similar to staff's position in its petition on ALAB-577, the applicant argued that the Appeal Board's denial of its motion had a
"dubious" basis.
The Commission appreciates the willingness of both adjudicatory boards which have considered this case to search for effective means to assure that the management capability issue receives appropriate scrutiny at the operating license stage.
The Commission recognizes the importance of the substantive concerns as well as the serious attention given to designing a
remedy to address them.
Unfortunately, the Appeal Board's remedy, like the Licensing Board's solution, exceeds the authority the Commission has dele-gated to adjudicatory tribunals in,this instance and must be vacated.
It is well-settled that Boards do not possess "the authority to direct the holding of hearings following the issuance of a construction permit."
Florida Power and Li ht Co.
(Turkey Point Nuclear Generating
- Station, Units 3
A and 4),
It is also clear that the Boards do'not direct the staff in performance of their administrative functions.
The Commission does have authority to do so,
- however, as part of its inherent supervisory authority, even over matters in adjudication.
Nianara t'ohawk
~C.
2 II Ii 9 I, II I 23,.CII 23 29, 9 AfC 992 9333.
principle is clearly part of Appeal Board practice.
Florida Power and Lioht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553, 10 NRC '12, 14 (1979).
Accordingly, in these circumstances, Boards concerned about the conduct of the staff's administrative functions bring the matter to the Commission s attention as described in ALAS-553, ~su ra, or certify a question to the Commission.
- See,
~e... 10 CFR 2.785(d).
In this regard, the Commis-sion expects that Boards will, when appropriate, suggest to it proposed guidance or instructions for the staff in the conduct of its administrative functions at the time Boards bring matters to the Commission s attention.
The Commission here only concludes that Boards may not act beyond their delegated authority.
An important reason for this decision is that the Boards'urisdiction over the management qualifications issue in the construction permit pro--
ceeding will end with this decision.
See Carol.ina Power
~5LihtC.(3tH I
2 I
PPI t.di I.t.t.dd),CLI-79-5, 9
NRC 607, 610 (1979).
The operating license proceeding starts with the notice of proposed action (10 CFR 2.105) and is separate from the prior proceeding.
Boards have jurisdiction.only in proceedings and the Appeal Board will have lost jurisdiction over the instant issue by the time the operating license notice is published.
The Commission is not inclined to overrul.e or limit its case law that has narrowly construed "proceeding" in
\\
order to expand the Board's delegation of authority to apply to this case.
See, e.q.,
Public Service Co. of New Hampshire (Seabrook Station, Units 1
and 2
, ALAB-513, 8 NRC 694 1978); Carolina Power and Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4
, ALAB-526, 9 NRC 122 (1979); Public Service Co. of Indiana (t1arble Hill Nuclear Generating Station, Units 1 and 2, ALAB-530, 9 NRC 261 (1979).
For these
- reasons, the Commission reverses the portions of ALAB-577 and ALAB-581 to the extent they purport to direct the staff in the performance of administrative tasks in a separate "proceeding."
The Commission declines to review the other issues raised by the applicant's petition for review of ALAB-581.
Finally, pursuant to its supervisory authority,
'he Commission directs the staff to conduct the preliminary assessment'and follow the other conditions described by the Appeal Board in ALAB-577, as part of the staff's review of the Harris operating license application accept-ance review (10 CFR 2.101(a)),
a condition precedent to publication of notice under 10 CFR 2.105 and adopts the Appeal Board's rationale for these condi-tions as its own.
Chairman Ahearne concurs in the decision that the Appeal Board lacked authority to direct the staff in this case, but dissents from the decision not to'rant the applicant's petition to review ALAB-581.
Chairman Ahearne would have preferred the approach outlined by the applicant in its motion.
It is so ORDERED.
for the Commission Dated at Washington, DC,
~C this (I day of April, 1980.
SAMUEL J.
CHI Secretary of theJ Commission
- Section 201 of the Energy Reorganization Act, 42 U.S.C.
55841 provides that action of the Commission shall be determined by a "majority vote of the members present."
Commissioners Gi linsky and Bradford were not present when this item was affirmed.
Had Commiissioners Gi linsky and Bradford been present at the meeting they would have voted wi th the majori ty.
Accordingly, the formal vote of the Commission
.on this matter was 2-1, wi th Chai rman Ahearne dissenting in par t.
,Af 4
CLI-80-12 UNITED STATES OF At1ERICA NUCLEAR REGULATORY COt1t1ISSION COMt~iISS IONERS
'ohn F. Ahearne, Chairman Victor Gilinsky Richard T.
Kennedy Joseph t1. Hendrie Peter A. Bradford Do"LET:-o Qsggo ppR 17 >" +
2 Dies@'
QpQggg fg Mbt Q)A In the Matter of CAROLINA POWER 5 LIGHT CO.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4)
Docket Nos.
50-40 50-402 50-403 MEMORANDUM AND ORDER In September 1978, the Commission's attention was drawn by the Atomic Safety and Licensing Board in this proceeding to serious concerns about the completeness of the administrative record on the issue of Carolina Power Light Company's management qualifications with respect to the Shearon Harris facility.
The Commission found that the Licensing Board raised a serious question regarding the integrity of the administrative process and remanded that issue "for a further hearing on the management capability of [the appli-cantj to construct and operate the proposed Shearon Harris facility without
~
y 8 f undue risk to the health and safety of the public."
CLI-78-18, 8
NRC 293;"
294 (1978).
The Licensing Board has concluded hearings on the issue and approved the applicant's management capability to construct the facility properly.
The Atomic Safety and Licensing Appeal Board has affirmed'he Licensing Board's determinations on the m rits.
ALAB-577, ll NRC (January 29, 1980).
No-p t td the proceeding has
disputed the correctness of that determination.
The Commission likewise has no reason to disturb that conclusion.
The current dispute involves the question of what steps the NRC staff ought to take with respect to the management qualifications issue at the time the Harris operating license application is filed.
The Licensing Board had sufficient residual doubt concerning applicant's management capability to operate the Harris'facil.ity that it ordered a hearing held at the operating license stage on that issue.
~su ra, 10 NRC at 43, 98-99.
The staff appealed, arguing that the Licensing Board lacked authority to order a
hearing in the operating license proceeding.
The Appeal Board agreed with the staff, finding that the Licensing Board for that construction permit proceeding lacked the authority, in the regula-tions or in the Commission's delegation to it,'o order a hearing at the operating license stage.
Thus, the Appeal Board vacated the Licensing Board's condition on the construction permits which would have required an operating license hearing.
However,, the Appeal Board directed the staff to conduct a
preliminary assessment on the management qualifications issue in the operat-ing license application and provide the same to the Commission and include it in the Federal
~Re ister notice of opportunity for hearing.
ALAB-577, ~su ra, slip op. at 35-36.
The NRC staff petitioned for review, urging that the Commission upset the Appeal Board-imposed requirement because=
h if tip pthi p
d tii ipii 2
...2 2
2 dj iditi 2
."2 ffy ii tt[ph 2
i igi 2].
fh staff did not object to the substance of what the Appeal Board had ordered and suggested that the Commission itself provide similar di rections to the sta f.
92 For its part; the applicant moved the Appeal Board to reconsider its action, believing that it would delay processing of the operating license application.
The Appeal Board disagreed and denied the motion.
ALAB-581, ll I
NRC (February 20, 1980).
The Commission consolidated its consideration of this decision with ALAB-577.
Commission Order, extending time (Febru-ary 21, 1980).
The applicant petitioned for review of ALAB-581.
In addition to advancing a position similar to staff's position in its petition on ALAB-577, the applicant argued that the Appeal Board's denial of its motion had a
"dubious" basis.
The Commission appreciates the willingness of both adjudicatory boards which have considered this case to search for effective means to assure that the management capability issue receives appropriate scrutiny at the operating license stage.
The Commission recognizes the importance of the substantive concerns as well as the serious attention given to designing a
remedy to address them.
Unfortunately, the Appeal Board's remedy, like the Licensing Board s solution, exceeds the authority the Commission has dele-gated to adjudicatory tribunals in this instance and must be vacated.
It is well-settled that Boards do not possess "the authority to direct the holding of hearings following the issuance of a construction permit."
Florida Power and Li ht Co. (Turkey Point Nuclear Generating Station, Units 3
r and 4),
It is also clear that the Boards do'not direct the staff in performance of their administrative functions.
The Commission does have authority to do so,
- however, as part of its inherent supervisory authority, even over matters in adjudication.
Nianara t"ohawk
~C.
511 11 1 1, 9
1 23, CEI-1 -22, 6 AE 9.5 51.133.
principle is clearly part of Appeal Board practice.
Florida Power and Li ht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553, 10 NRC 12, 14 (1979).
Accordingly, in these circumstances, Boards concerned about the conduct of the staff's administrative functions bring the matter to the Commission s attention as described in ALAB-553, ~su ra, or certify a question to the Commission.
- See,
~e... 10 CFR 2.785(d).
In this regard, the Commis-sion expects that.Boards will, when appropriate, suggest to it proposed guidance or instructions for the staff in the conduct of its administrative functions at the time Boards bring matters to the Commission s attention.
The Commission here only concludes that Boards may not act beyond their delegated authority.
An important reason for this decision is that the Boards'urisdiction over the management qualifications issue in the construction permit pro--
ceeding will end with this decision.
See Carolina Power
~ELihtC.
Cdh 4
I II I
Pl t,hit l.t.t.
44),CLI-79-5, 9
NRC 607, 610 (1979).
The operating license proceeding starts with the notice of proposed action (10 CFR 2.105) and is separate from the prior proceeding.
Boards have jurisdiction.only in proceedings and the Appeal Board will have lost jurisdiction over the instant issue by the time the operating license notice is published.
The Commission is not inclined to overrule or limit its case law that has narrowly construed "proceeding"-
in order to expand the Board's delegation of authority to apply to this case.
- See,
~e
, Public Service Co. of New Ham shire (Seabrook Station,
- /
Units 1
and 2, ALAB-513, 8 NRC 694 1978; Carolina Power and Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4, Al AB-526, 9
NRC 122 (1979); Public Service Co. of Indiana (t1arble Hill Nuclear Generating Station, Units 1 and 2, ALAB-530, 9 NRC 261 (1979).
For these
- reasons, the Commission reverses the portions of ALAB-577 and j
ALAB-581 to the extent they purport to direct the staff in the performance of administrative tasks in a separate "proceeding."
The Commission declines to review the other issues raised by the applicant's petition for review of ALAB-581.
Finally, pursuant to its supervisory authority,
'he Commission directs the staff to conduct the preliminary assessment
'and follow the other conditions described by the Appeal Board in Al AB-577, as part of the staff's review of the Harris operating license application accept-ance review (10 CFR 2.101(a)),
a condition precedent to publication of notice under 10 CFR 2.105 and adopts the Appeal Board's rationale for these condi-tions as its own.
Chairman Ahearne concurs in the decision that the Appeal Board lacked authority to direct the staff in this case, but dissents from the decision not to'rant the applicant's petition to review ALAB-581.
Chairman Ahearne would have preferred the approach outlined by the applicant in its motion.
It is so ORDERED.
For the Commission Dated at Washington, DC, this (7 day of April, 1980.
SANUEL J.
CHI Secretary of th~ Commission
- Section 201 of the Energy Reorganization Act, 42 U.S.C.
55841 provides that action of the Commission shall be determined by a "majority vote of the members present."
Commissioners Gilinsky and Bradford were not present when this item was affirmed.
Had Commissioners Gilinsky and Bradford been present at the meeting they would have voted with the majority.
Accordingly, the formal vote of the Commission. on this matter was 2-1, with Chairman Ahearne dissenting in part.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COiQJISS ION In the Matter of
)
)
CAROLINA POWER AND LIGHT COMPANY )
)
(Shearon Harris Nuclear Power
)
Plant, Units 1, 2, 3," and'4)
)
)
)
)
Docket No.(s) 50-400 50-401 50-402 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 Mashington, D.C. this
~ 8
/-
day of 19@
Office o he Secretary of the ommission
UNITED STATES OF A'.AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
CAROLINA POWER AND LIGHT COMPANY )
)
(Shearon-Harris Nuclear Power
)
- Plants, Units 1-4)
)
)
Docket No.(s) 50-400 50-401 50-402 50-403 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 Counsel for NRC Staff Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Alan S. Rosanthal, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard E. Jones, Esq.
Carolina Power and Light Company P.O.
Box 1551 Raleigh, North Carolina 27602 George F. Trowbridge, Esq.
Ernest L. Blake, Jr.,
Esq.
Shaw, Pittman, Potts
& Trowbridge 1800 "M" Street, N.W..
Washington, D.C.
20006 Thomas S. Erwin, Esq.
P.O.
Box 928
- Raleigh, North Carolina 27602 Dennis P. Myers, Esq.
Attorney General's Office P.O.
Box 629 Raleigh, North Carolina 27602 Mr. 0.
Gene Abston, Acting Director Office of Inspector and Auditor 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 "ichael C. Farrar, Esq.
- ".toric Safety and Licersinp Appeal 7c ard U.~. Nuclear.",egulatory Co-, ~ission
- ashington, D.C.
20555 Wells Eddie
".cute 1, Box 133 l
~
4 t I
277~5
~
~
UNITED STATES OF AHERICA NUCLEAR REGULATORY COt1f EMISSION COt1HISSI ONERS:
John F. Ahearne, Chairman Victor Gi.1insky Pichard T.
Kennedy Joseph H. Hendrie Peter A. Bradford In the Hatter of CAROLINA POWER AND LIGHT CO.
(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 take action to review ALAB-577 and ALAB-581 is extended one week until April 18, 1980.
It is so ORDERED.
For the Commission Dated at Washington, DC, this 11th day of April, 1980.
1UEL 0
Secretary of th
(
K Commission
~I( %g
( ~ )
51& 0
~
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4 /
TM
- oOS~
g$gRG
~PR gg1980 ~
y $gg@f Q~t g ~ g QfgCC gran@
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.'O'JISS ION In the Matter of
)
)
CAROLINA POWER AND LIGHT COMPANY )
)
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4)
)
)
)
)
Docket No. (s) 50-400 50-401 50-402 50-403 CERTIFICATE OF SERV1 CE 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 Washington, D
. th's
~ day of lyd Ew<C Offic o
the Secretary of th Commission
UNITED STATES OF AMERICA NUCLEAR REGULATORY C019GSSION In the Matter of
)
)
CAROLINA POWER AND LIGHT COMPANY )
)
(Shearon-Harris Nuclear Power
)
- Plants, Units 1-4)
)
)
Docket No.(s) 50-400 50-401 50-402 50-403 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 Washingto'n, D.C.
20555 Dr. J.V. Leeds, Jr.
Rice University P.O.
Box 1892
- Houston, Texas 77001 Counsel for NRC Staff Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Alan S.; Rosanthal, 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 Richard E. Jones, Esq.
Carolina Power and Light Company P.O.
Box 1551 Raleigh, North Carolina 27602 Geor'ge F. Trowbridge, Esq.
Erne'st L. Blake, Jr.,
Esq.
Shaw, Pittman, Potts
& Trowbridge 1800 'M" Street, N.W.
Washington, D.C.
20006 Thomas S. Erwin, Esq.'
0 Box 928 Raleigh, North Carolina 29602 Dennis P. Myers, Esq.
Attorney General's Office P.O.
Box 629 Raleigh, North Carolina 27602 Mr. 0.
Gene Abston, Acting Director Office of Inspector and Auditor U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Wells Eddleman Route 1, Box 183 Durham, North Carolina 27705 Kudzu Alliance Box 3036 Chapel Hill, North Carolina 27514