ML19209B246
| ML19209B246 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 08/24/1979 |
| From: | Kaplan D SACRAMENTO MUNICIPAL UTILITY DISTRICT |
| To: | |
| References | |
| NUDOCS 7910090374 | |
| Download: ML19209B246 (10) | |
Text
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UNITED STATES OF AMERICA Y
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NUCLEAR REGULATORY COMMISSION 9
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ap SACRAMENTO MUNICIPAL UTILITY DISTRICT
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Docket N61[50f 1 gh Rancho Seco Nuclear Generating Station )
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BRIEF OF THE SACRAMENTO MUNICIPAL UTILITY DISTRICT ON THE SCOPE OF THE BOARD'S JURISDICTION Discussion The starting point for any consideration of the scope of this Board's jurisdiction must be the Commission's June 21 order initiating this proceeding, since " licensing boards 'are delegates of the Commission and exercise only those powers which the Commission has given [them].'"
I n, the Matter of Public Service Company of Indiana, Inc., ALAB 316, NRCI 76/3, 167, 170 (1976), quoting Northern Indiana Public Service Co., ALAB 249, RAI-74-12, 980, 987 (1974).
"[E]xcept where it recuses itself in a particular case, a licensing board's actions can neither enlarge nor contract the jurisdiction conferred by the Commission. "
In the Matter of Consumers Power Companyr, ALAB 235, RAI-74-10, 645, 647.
(1974).M If The transcript of the Commission's meeting on July 11, 1979 shows, on page 12, that the Commission did not intend to preclude this Board from considering the subject of management competence and centrol even theagh that sub-ject is not referred to in the June 21 Order.
- However, since we do not anticipate controversy over that aspect of the Board's jurisdiction, we shall not discuss it further.
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The June 21 Order lists three subjects to be con-sidered at the hearing:
"1.
Whether the actions required by sub-paragraphs (a) through (e) of Section IV of the Order are necessary and sufficient to provide reasonable assurance that the facility will respond safely to feedwater transients, pending completion of the long-term modifications set forth in Section II.
A contention challenging the correctness of the NRC staff's conclusion that the actions described in subparagraphs (a) through (e) have been completed satisfactorily will be considere' to be within the scope of the hearing.
However, the filing of such a contention shall not of itself stay operation of the plant.
"2.
Whether the licensee should be required to accomplish, as promptly as practicable, the long-term modifications set forth in Section II of the Order.
"3.
Whether these long-term modifications are sufficient to provide continued reasonable assur-ance that the facility will respond safely to feedwater transients."
If the foregoing is to be read literally, it seems clear that Subjects 1 and 3 deal only with the ability of the facility to respond to feedwater transients, and that Subject 2 is limited to the single question of whether the long-term modifications required by the May 7 Order must be accomplished as promptly as practicable.
Lefore considering whether there is anything in the June 21 order or elsewhere to suggest that a broader reading would be appropriate, we shall discuss another document that gives assistance in interpreting that order.
That document is the Commission's August 9 Order providing for a hearing in the Three Mile Island No. 1 proceeding.
It seems reason-able that generally accepted principles of statutory inter-1114 093 pretation should be applied in interpreting the Commission's orders, and one of those principles is that statutes dealing with the same subject "should be construed together and compared with each other."
73 Am. Jur. 2d 386-387, Statutes S187.
Another is that " [W] here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed."
People v. Drake (1977) 19 Cal. 3d 749, 755, 566 P.
2d 622; People v. Valentine (1946) 28 Cal.2d 121, 142, 169 P.2d 1; Fair v. Fountain Valley School District (1979) 90 Cal. App.3d 180, 187; see also United States v.
Gila River Pima-Maricopa Indian Community (Ct. Cl., 1978) 586 F.2d 209, 215.
If these principles are to be applied, it follows that insofar as specific hearing subjects are set forth in the Three Mile Island No. 1 order but are omitted from the Rancho Seco order, the omission is sig-nificant to show that the Commission did not intend the Rancho Seco hearing to extend to those subjects.
When we compare the Commission's August 9 order in the Three Mile Island No. 1 proceeding with its May 7 and June 21 orders in this proceeding, we see that the initial group of short-term actions required by the TMI order are essentially the same as the short-term actions required by the Rancho Seco May 7 order.
We see also that the first of the long-term actions required by the TMI order -
the submission of a failure modes and analysis of the 1114 094 Integrated Control System to the NRC - is similar to one of the long-term actions required by the Rancho Seco May 7 order.
But we also see that there are differences between the TMI order and the Rancho Seco order.
The TMI order directs, as part of the short-term requirements, that a series of actions relating to emergency preparedness be taken and also lists certain emergency preparedness measures among the long-term actions; the Rancho Seco orders do not deal with the subject of emergency preparedness.
The TMI order requires a demonstration of the adequacy of waste management capability; the Rancho Seco orders do not deal with that subject.
There are other differences between the TMI and Rancho Seco orders, but we will not prolong this discussion by ting them forth.
Mos
_mportant of all, the TMI order contains the following language:
"In addition to the items identified for the other B&W r'eactors, the unique circumstances at TMI require that additional safety concerns identified by the NRC staff be resolved prior to restart.
These concerns result from (1) potential interaction between Unit 1 and the damaged Unit 2 and (4) recognized deficiencies in emergency plans and station operating procedures."
This language makes it clear that the omission of the subjects of emergency preparedness and evacuation plans from the Rancho Seco order was deliberate.
And we believe the same may be said about the subject of wente management since the reference to waste management in the TMI order is coupled with a requirement that the licensee 1114 095 demonstrate "that TMI-l waste handling capability is not relied on by operations at TMI-2."
Based on the foregoing, we submit that a compar-ison of the Commission's orders in this proceeding with its August 9 order in TMI-l proceeding shows that the Commissioners did not intend to delegate to this Board authority to consider matters such as emergency prepared-ness, evacuation plans and waste management.
We now return to the question which we raised earlier:
Is there anything in the June 21 order or else-where to suggest that the Commission intended to vest in this Board jurisdiction over matters other than the ability of the facility to respond to feedwater transients and the schedule under which the long-term modifications required by the May 7 order should be accomplished?
Our answer is a qualified affirmative, and we base that answer not on the June 21 order itself, but on the transcript of the Commission's July 11 meeting.
During that meeting, Chairman Hendrie ncted, with apparent approval, that this Board, in its July 3 order, had stated that further issues could be specified "as long as they are related to the action taken by the Commission in its May 7, 1979, order."
(Order of July 3, footnote 3, page 3; see also transcript of the Commission's July 11 meetirg, pages 5-6).
It seems fair to say that the remainder of the Commission's discussion on July 11 indicates that l114 096
the other Commissioners concurred in Chairman Hendrie's approval of this portion of the Board's July 3 order.
Therefore, it seems fair to conclude that the July 11 transcript indicates that the Board has jurisdiction to consider matters related to the May 7 order even if those matters exter.d beyond the subject of the ability of the facility to respond to feedwater transients.
We hasten to point out, however, that, as we read the May 7 order, it deals with little other than that subject.
The Board's prehearing conference order also requested the parties to address, in their briefs, the effect, if any, of a Commission rulemaking, either in program or planned, on the admissibility of any conten-tions.
The Appeal Board's position on this point is set forth in In the Matter of Potomac Electric Power Company, (1974) ALAB 218, 8 AEC 79, 85:
"In short, the Vermont Yankee line of cases stands for the proposition that licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission.
If this was only implicit in the Vermont Yankee opinion (4 AEC 930), it was explicitly articulated in the cases which followed.
- See, e.g.,
Shoreham, supra, ALAB-99, RAI-73-2 at 55-56, and Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-179, RAI-74-2, 159 at 163-164 (February 28, 1974)."
The explanation given by the Appeal Board for its position, which is also set forth on page 85, is as follows:
"Our consideration in adjudicatory prq-ceedings of issues presently to be taken up by j j } 4 (j},7 the Commission in rulemaking would be, to say the least, a wasteful duplication of effort."
That the Appeal Board's position is tenable and would be sustained by the courts is, we believe, clear from the decision of the United States Supreme Court in Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council (1978) 435 U. S.
519.
The Court there stated, at page 543:
"But this much is absolutely clear.
Absent constitutional constraints or extremely compell-ing circumstances the ' administrative agencies should be free to fashion their own rules of pro-cedure and to pursue methods of inquiry capable of permitting them to discharge their multitudin-ous duties.'
FCC v.
Schreiber, 381 U.S.,
at 290 As tb? Board is aware, the Vermont Yankee case dealt with the rulemaking procedures of the Nuclear Regu-latory Commission.
It follows from the foregoing authorities, we submit, that the Board should not consider any matter that is about to become the subject of Commission rulemaking.
Conclusion Our conclusion, then, is that this Board has jurisdiction to consider issues related to the action taken by the Commission in its May 7 order, but that its juris-diction does not extend to other matters.
Further, should it appear, at any time during the course of this procceding, that any of the issues being considered by the Board is or
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j is about to become the subject of commission rulemaking, the Board shotild give no further consideration to that issue.
Dated:
August 24, 1979 Very respectfully submitted, DAVID S.
KAPLAN JAN E. SCHORI By f s a
Chvid S. Kaplfn Attorneys for Sapramento Municipal Utility District P O Box 15830 Sacramento CA 95813 Telephone (916) 452-3211 l114 099
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UNITED STATES OF 4MERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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SACRAMENTO MUNICIPAL UTILITY
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DISTRICT
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Docket No. 50-312 Rancho Seco Nuclear Generating )
S ta tion
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CERTIFICATE OF SERVICE I hereby certify that copies of the following docunent:
Brief of the Sacramento ""nicipal Utility District on the scope of the Board's jurisdiction.
in the above captioned proceeding have been served on the follow-ing by deposit in the United States mail, first class, on this f
2$f1 day of August 19 79 Michael L.
Glaser, Esq., Chairman Mr. Mark Vandervelden 115 0 17 th S treet, N.W.
Ms. Joan Reiss Washington DC 20036 Mr. Robert Chris topherson Friends of,the Earth Dr. Richard F. Cole California Legislative Office Atomic Safety and Licensing Board Panel 717 K Street, #208 U.
S.
Nuclear Regulatory Commission Sacramento CA 95 814 Washington DC 20535 Reed, Samuel & Remy Mr. Frederick J.
Shon 717 K S treet, Suite 4 05 Atomic Safety and Licensing Board Panel Sacramento CA 95 814 U. S. Nuclear Regulatory Commission Wa s hing to n DC 2 0555 Ms. Dian Greuneich California Energy Commission Timo thy
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A.
Dillon, Esq.
1111 Howe Avenue 185 0 K S tree t N.W., Suite 380 Sacramento CA 95825 Washing to n DC 20006 Gary Hursh, Esq.
Atomic Safety and Licensing Board Panel 520 Capitol Mall, Suite 700 U.
S. Nuclear Regulatory Commission Sacramento CA 95814 Washington DC 20535 Mr. Richard D.
Castro Atomic Safety and Licensing Appeal Board 2231 K S treet Panel Sacramento CA 95 816 U.S. Nuclear Regulatory Commission Washington DC 20555 1114 100 e
s-Docketing and Service Section Office of the Secretary U.
S.
Nuclear Regulatory Commission Mr. Lawrence Brenner Counsel for NRC Staff U.
S.
Nuclear Regulatory Commission Office of the Executive Legal Director Wa shin ~gton DC 20555 Mr. S tephen H.
Lewis Counsel for NRC Staff U.
S.
Nuclear Regulatory Commission Of fice of the Executive Legal Director Washington DC 20555 i
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m Dpvid S.
Kapl Cbunsel for S CRAMENTO MUNICIPAL UTI ITY DISTRICT 1114 101
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