ML19210B737

Opposition to 791011 Draft Policy Statement Re Supervision of Licensing Actions.Identical Licensing Procedure Disregards Unique Licensee Aspects.No Criteria for Guidance of Licensing Boards.Certificate of Svc Encl

ML19210B737
Person / Time
Site:	Skagit
Issue date:	10/16/1979
From:	Lowenstein R LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Hendrie J NRC COMMISSION (OCM)
References
NUDOCS 7911120209
Download: ML19210B737 (7)

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, de + z~e The Honorable Joseph M. Hendrie Chairman

• a U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Dr. Hendrie:

In letters to the Commission (dated August 31 and September 19, 1979) from John W. Ellis, President, Puget Sound Power & Light Company, Puget urged that the Nuclear Regulatory Commission authorize the NRC Staff to proceed with the presentation of evidence on TMI-2 related issues.

We are gratified that the Commission has decided to do so, as reflected in transcripts of recent Commission meetings which we have been following very closely, puget very much appreciates the opportunity to proceed with hearings on its Skagit application, hearings which we hope will soon be completed.

The purpose of this letter on behalf of Puget Sound Power & Light Company is to address the proposals made by the of fice of the General Counsel in draf t policy statements recently considered by the Commission, particularly the draft discussed by the Commission at its meeting on October 11, 1979. Although the draft statement is designed to implement "the obje.ctive of increased Commission supervision of licensing actions," we believe that it will not acccmplish its stated objectives "while (1) requiring the least dis-ruption of existing procedures; (2) avoiding undue. delay and duplicaticn . . .; and (3) allowing the Commission maximum flexibility . . . .

We disagree with those conclusions of the draft policy statement for reasons succinctly summarized as follows.

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Low:N ST E IN, N Ew x4 N, R E t s. AX El.R A D & 01.1,

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The Honorable Joseph M. Hendrie Page Two October 16, 1979 (1) The draft statement would provide identical pro-cedures for review of limited work authorizations, con-struction permits and operating licenses without recognition that differences among such licensing actions warrant different procedural treatment and different criteria for their review.

It takes little discussion to recognize that the criteria for approving issuance of an LWA-2 or a construc-tion permit, both of which involve major construction, are very different from those which should be applied to an LWA-1 or, indeed, those which should be applied to an operating license for which major investnents in time and money for construction will already have been made. Moreover, it may be enough at the construction permit stage for the Commission to find that the design, training and procedures to be developed by the utility will at some later time comply with Ccmmission requirements whereas, at the operating license stage, the Commission must necessarily find that the plant is in compliance with applicable requirements.

Of special interest to Puget is the fact that the draft statement fails to recognize the unique characteristics of an LWA-1 and the inherent differences between such an authorization and the other licensing actions under con-siderarion.

The holder of an LWA-1 is authorized primarily to do site preparation work, not including construction of founda-tions for the facility. Puget urges that the proposed policy should not inhibit site preparation work under an LWA-1, especially if the utility is prepared (as is Puget) to restore the original contours of the site should a final order denying a construction permit ultimately be issued.

Accordingly, we believe that LWA-l's should be exempted from the review procedures if applicants are prepared to give the Commission such an assurance.

In proposing application of the draft review procedures to LWA-l's, the draft policy statement overlooks the reasons why the Cc= mission has adopted and obaezved LWA-1. procedures; namely, reduction in the time required to bring on line nuclear pcwer plants which may ultimately be found to satisfy

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all regulatory requirements. Application of the procedures

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Lowcxsizrx, NzwxAw, Rzzs. Axst.aAo & Tou.

                                          ' J The Honorable Joseph M. Hendrie Page Three October 16, 1979 proposed in the draft policy statement would result not only in unnecessary delay i- making needed energy available, but also in significant- increased costs.      In the case of Skagit, Puget expects the additioncl costs for replacement power, escalation of construction costs, and carrying charges, for several weeks of delay would more than justify the financial risk involved in site preparation and possible site restora-tion.

(2) The proposed policy statement contains no criteria for the guidance of licensing boards in making recommended decisions nor criteria for guidance of the Appeal Board. The criteria should identify the post-TMI subjects of cencern to the Commission for each type of licensing action undar consideration (i.e., LWA-1, LWA-2, construction permit, operating license) and they should contain some general statement as to the required compatibility of the proposed license to tne particular post-TMI subjects of relevance. (3) The policy statement should either provide clear policy guidance for the Appeal Board or it should require review and disposition of each case by the Commission. The draf t statement appears to do neither. (4) The dr.af t statement proposes to apply S2.738 pro-cedures to the Appeal Board and Commission reviews con-templated in the statement. We believe this proposal mis-conceives the purpose and effect of S2.788. The review which is the subject of the policy statement is designed to provide an opportunity for the Commission with the aid of the Appeal Board to decide whether to allow a licensing board decision to become effective in light of various post-TMI considerations. In effect, the Commission announcement is itself a stay for that purpose. Section 2.788, on the other hand, is an adjunct to the appeal process. It is meant to apply where an appeal is taken from an already effective decision and the grounds for a stay under 52.788 relate to such appellate review. For the same reasons that the review contemplated by the draft policy statement is not considered an appellate review, we believe S2.788 should not be a part of the proposed procedure.

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- LowzxsTzrx, NewxAw, Rzzs. AxzLRAD & Tor z. J The Honorable Joseph M. Hendrie Page Four October 16, 1979 The relative cumbersomeness and tendency to delay inherent in the S2.788 procedures are not disadvantageous when applied--as it was meant to be--to a previously effective licensing board decision. But no reason has been advanced to apply the procedures and criterion of S2.788 to the preliminary review contemplated by the draft statement of decisions whose effectiveness has been stayed by Cammission action. If the Commission allows licensing board decisions to become effective after review for compatibility with post-TMI requirements, the stay procedure under $2.788 would still be available as an adjunct to the normal appellate review. (5) No explanation is given in the policy statement of reasons why the Office of the General Counsel proposes to make the policy statement effective $7ithout opportunity for public participation. Especially in light of the likelihood that the report of the Kereny Cc= mission is expected to be available before the end of October, 1979, (The Washington Post, October 13, 1979, page A8), it does not appear to us that adequate justification is set forth in the draft policy statement for the ommission of public procedures, including opportunity for public co= ment on the draft statement. For the foregoing reasons, we urge that: A. The proposed policy and suspension of the "immediate effectiveness rule" (10 CFR 2.764) should not be applied to site preparation work under an LWA-1 if the utility provides Assurance that the original condition of the site will be substantially restored if a final order is issued denying a construction permit; B. Opportunity be allowed for a brief period for public comment on a proposed policy statement before it is adopted by the Cc= mission; C. For the time being, the policy statement dated October 4, 1979 (44 F.R. 58559) should be continued in effect. 13i2 203

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LowzxsTzrx, Newman, Rzzs. AxzLnAD & tot.L s The Honorable Joseph M. Hendrie Page Five October 16, 1979 If it would be helpful to the Commission, Puget would be pleased to appear before the Commission to present its views orally. - Respectfully submitted, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL 3 /

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                                              .By:j,               bMN Attorneys for Puget Sound Power & Light Company cc:  Cornissioner    John F. Ahearne Cornissioner    Peter A. Bradford Commissioner    Victor Gilinsky Commissioner    Richard T. Kennedy Mr. Samuel J. Chilk Secretary Mr. Howard K. Shapar Executive Legal Director Mr. Leonard Bickwit General Counsel Skagit Service List
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UNITED STATES OF AMERICA 7b NUCLEAR REGULATORY COMMISSION k ih$ " BFFORE THE COMMISSION D 4 In the Matter of )

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PUGET SOUND POWER & LIGHT COMPANY, ) DOCKET NOS. et al. )

                                             )        50-522 (Skagit Nuclear Power Project,          )        50-523 Units 1 and 2)                          )
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a CERTIFICATE OF SERVICE I hereby certify that the following: LETTER TO JOSEPH M. HENDRIE DATED OCTOBER 16, 1979 in the above-captioned proceeding has been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on October 16, 1979 with proper postage affixed for first class mail. DATED: October 16, 1979 7s.I1 10 8 - Michael A. Bau'ser, Esq. Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W. Washington, D. C. 20036 1312 ?05

.. October 16, 1979

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i Valemtine B. Deale, Chairman Robert C. Schofield, Director Atomic Safety and Licensing Board ', Skagit County Planning Department 1001 Connecticut Avenue, N.W. - 218 County Administration Building Washington, D. C. 20036 Mount Vernon, WA 98273 Dr. Frank F. Hooper, Member Richard M. Sandvik, Esq. Chairran of Resource, Ecology, Assistant Attorney General Fisheries and Wildlife 500 Pacific Building University of Michigan 520 S.W. Yamhill School of Natural Resources Portland, OR 97204 Ann Arbor, MI 48109 - Roger M. Leed, Esq. Gustave A. Linenberger, Member Room 610 Atomic Safety and Licensing Board 1411 Fourth Avenue Building U.S. Nuclear Regulatory Commission Seattle, WA 98101 Washington, D. C. 20555 CFSP and FOB Alan S. Rosenthal, Chairman Eric Stachon Atcmic Safety and Licensing 2345 S.E. Yamhill Appeal Board Portland, OR 97214 U.S. Ncclear Regulatory Commission Washington, D. C. 20555 Warren Hastings, Esq. Associate Corporate Counsel Dr. John H. Buck, Member Portland General Electric Company Atcmic Safety and Licensing 121 S.W. Salmon Street Appeal Scard Portland, OR 97204 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 James W. Durham Portland General Electric Company Michael C. Farrar, Member 121 S.W. Salmon Street Atcmic Safety and Licensing Portland, OR 97204 Appeal Board U.S. Ncclear Regulatory Commission Richard D. Bach, Esq. Washington, D. C. 20555 Rives, Bonyhadi, Drct. sand & Smith 1400 Public Service BL..lding Docketing and Service Section 920 S.W. 6th Avenue Office of the Secretary Portland, OR 97204 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Canadian Consulate General (original and 20 copies) Donald Martens, Consul 412 Pla:a 600 Richarf L. 31ack, Esq. 6th and Stewart Street Counsel for NRC Staf Seattle, WA 98101 U.S. Nuclear Regulatory Commission Of fice of the Executive Legal Patrick R. McMullen, Esq. Director Skagit County Prosecuting Attorney Washington, D. C. 20555 Courthouse Annex Mount Vernon, WA 98273 Nicholas D. Lewis , Chairman Energy Facility Site Evaluation F. Theodore Thomsen, Esq. Ccumcil Douglas S. Little, Esq. 820 East Fif th Avenue Perkins, Coie, Stonc, Olympia, WA 98504 Olsen & Williams 1900 Washington Building Themas F. C a rr , Esq. Seattle, WA 98101 Assistant Attorney General Temple of Justice Olympia, WA 98504 ~ 1512 ?06

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