ML19220C869
| ML19220C869 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/04/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Christenbury E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML19220C870 | List: |
| References | |
| NUDOCS 7905160013 | |
| Download: ML19220C869 (12) | |
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April 4,1979 C
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Note to Edward Christenbury re*
CONSIDEPJ. TION OF I"PLICATICNS CF T!i?!.E MILE ISL\\ND INCIDENT FOR LICENSED PC'.ER REACTCPS AND W.CTCES L*NDEFCOING REVIEW I.
Introduction The incident at Three Mile Island, Unit 2 (TMI), may have an icpact on facilities which have been licensed and are now operating and on facilities whose construction or operation are currently undergoing NRC review.
It is likely that requests will bc tade by me=bers of the public to " reopen" proceedings or to otherwise consider, in hearings, the implications of the TMI incident wi,th regard to the safety of operating facilities and facilities currently undergoing review. Questions arise, in this vein, as to the proper procedure for handling such requests, the appropriate standards for determining whether such requests should be granted, anu the appropriate forum for considering the 1 plications of the TMI incident with regard to operating facilities and facilities currently being reviewed.
For purposes of briefly exacining these questions, facilities =ay be placed in the following categories:
(a) Those facilities for which a C? has been issued but for which an OL application has not yet been filed and those facilities for which an OL has been issued (e.g. Fort Calhoun 1) - final agency actions completed; (b) Those facilities for which either a CP (e.g. Seabrook) or OL (e.g. North Anna) decision is pending before the Appeal Board only with regard to limited issues totally unrelated to the TMI problens;
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(c)
Those facilities for which a CP or an OL initial decision is before the Aapeal' Board for review, conceivably on all issues, and no part of the initial decision constitutes final agency action; (d) Those facilities for which the CP hearing (e.g.
Skagit) or the OL hearing (e.g. Waterford), if one was ordered, is not yet completed; (c) Those facilities possessing an OL for which an OL amendment hearing was ordered and hearing is not yet completed (e.g. Salem-spent fuel pool; Trojan-Control Building).
II.
Consideration of TMI Incident for Various Facilities A.
Facilities Uith CP or OL Where Agency action is Final as to Permit or License For those facilities for which an initial decision authoriaing issuance of a construction permit has becoce final and for which an OL application has not yet been filed and for those facilities for which issuance of an OL constitutes final agency action, no "rcopening" of the CP or OL licens-ing proceedings, pursuant to a request by a petitioner, can take place.
The reason for this is that once the agency's CP or OL decision becomes final, there is si= ply no adjudicatory board which retains jurisdiction with regard to the facility.
Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1&2), ALAB-530 (March 19,1979);
Houston Lichting & Power Co. et al. (South Texas Project,- Units 1&2),
ALAB-381, 5 NRC 582, 590-91 (1977).
Absent judicial review of agency action, such action becomes final and not subject to reopening or reconsideration upon the termination of the
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_3-period within which the Cornission may direct that the record be certified to it for final dtcision or when the Commission rendere its final decision, which2ver is earlier.
10 CFR 62.717(a); Public Service Co. of ?:ew Itamashire et al. (Seabrook Statica, L' nits 152), ALA3-513, Slip op. pp.2-3 (Dece -
ber 21, 1978).
(The caly exception to this - where the adjudicatory tribunal specifically retains jurisdiction over particular catters -
will be addressed in II.B infra).
Thus, final CP and OL liccasing actions cannot be recpened and any consideratica of the n!I i=plications for facilities in this category based on requests by members of the publ!c would have to'coce about through requests for show-cause orders pursuait to 10 CFR S2.206 or through express Commission direction (see II.F inft,).
3.
Final Agency Actions Over 'Jhich Adjudicatory Ecards Retain Limited Jurisdiction There are a number of facilities for which the CP or OL decision constitutes final agency action with regard to all matters except certain limited issues over which the Appeal Board has specifically retained jurisdiction.
Examples of these are:
(1)
Seabrook - decisions authorizing issuance of the construc-tion permits are final agency actions but the Appeal Board retains jurisdiction with rega'rd to alternate sites and the radon issue.
See Seabrook, ALA3-513 supra; (2) North Anna - decision authorizing issuance of operating license is final agency actions but the Appeal Board retains jurisdiction with regard to turbine missiles, pump house settlement and radon.
i17 163 For such facilities, the principle outlined in II.A is applicable.
If, in fact, there is a reascaable nexus be'. ween the matters over which jurisdiction has been retained by the adjudicatory tribunal and the issues raised by the n!I incide..r.,
- he tribunal certainly could ccasider DfI-related issues since there is yet to be final agenc.y action on such matters.
On the other hand, if the catters over which jurisdiction has been retained have no relationship to n!I-related issues, n!I ratters cannot be considered by the existing adjudicatory tribunals.
Such catters, instead, cust be considered in another forum.
_Scabrook, ALAB-513 supra, Slip Op. at pp.3-4 Requests to consider DiI-related issues for facilities in this category cust be examined on a case-by-case basis to determine if such issues ara within the scope of the jurisdiction retained by the adjudicatory tribunals.
C.
Facilities for Which CP or CL Decision Is Still Subject to Agency Review cn All Issues In this category are those facilities for which an initial decision on a CP or OL application has been issued and is pending before the Appeal Board either on appeal or for sua sponte review.
In the case of a CP, the Appeal Board, based on its sua sponte review powers, can cons! der all issues which have a bearing on the safety and environ = ental catters appropriate for consideration in a CP proceeding.
In the case of an OL, the Appeal Board, based on its sua sconte review powers and on 10 CFR S2.785(b)(2), can consider all issues which have a bearing on the safety and environmental aspects of plant operation, even if such =atters were not put in issue by the parties.
Thus, in either event, the Appeal 117 164 Board would have the jurisdiction and power to consider TMI-related issues either on its own motica or at tic request of a party to the proceeding, provided, of course, that the TM! problems are applicabic to the facility in cuestion.
- See, e.c.,
Tennessee Vallev Authority (Harts-ville Nuclear Plant, Units lA, 2A, 1B & 23), ALAB-463, 7 NRC 341, 352 (1978); Vermont Yankee Nuclear Pcwer Coro. (Vermont Yankee Nucicar Power Station), ALAB-124, 6 AEC 358, 359 (1973).
In addition: whil2 Appeal Board reviaw is pending, and at the very least prict to the tice t1 ult exceptions to an initial decision en a CP or OL application are filed, parties could properly file, and the presiding Licensing Board could entertain, notions to reconsider the initial decision and reopen the record because of new, safety-related issues raised by the TMI incident.
Consumers Powar Co. (Midland Plant, Units 162), ALAB-235, 8 AEC 645 (1974).
In determining whether to reopen, the Board will consider whether th, catters raised could have been raised earlier, whether such =atters require further evidentiary presentations, and whether such matters are serious frca a safety or environmental standpoint.
Vertont Yankee Nuclear Pcwer Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973); Carolina Power & Licht Co.
(Shearon Harris Nuclear Power Plant, Units 1-4), LBP-78-2, 7 NRC 83 (1978).
The controlling consideration, however, is the seriousness of the issue raised. Vermont Yankee, ALAB-138, 6 AEC 520, 523; ALAB-124, 6 AEC 365.
ii7 165 de D.
Facilities for Ubich CP or OL Hearines Are ';ot Cornleted For those proceedings for which CP or OL hearings have been noticed but for which such hearings have not been completed, parties to the proceed-ings would, of course, be free to cove for amendment of their contentions so as to introduce issues related to the TMI incident.
Provided that good cause is shown for such amendment and that the TMI-related issuca thus raised are applicable to the facility in question, the introduction of new issues in this manner is appropriate.
Louisiana Power T. Light Co.
(Waterford Steam Electric Station, L' nit 3), LEP-73-31, 6 AEC 717 (1973),
appeal dismissed as' interlocutory, ALA3-168, 6 AEC 1155.
The Licensing Board could also raise such issues en its own totion, even in OL proceedings where matters to be considered are generally licited to those put in issue by the parties.
E.
Facilities Possessing an OL for Which OL Acend=ent Hearings Were Ordered and Hearings Are 7:ot Cecoleted Facilities in this category are those which possess an OL but thich are currently involved in hearings with regard to an amendment to the OL.
Examples are:
(1) Salem facility - hearing ordered en license amend ent to permit expansion of on-site spent fuel storage capacity (2) Trojan fccility - hearing ordcred on license amend-ment allowing modifications to correct control build-ing seismic design deficiencies.
For such facilities, the jurisdiction of the adjudicatory tribunals is strictly limited to tne bounds of the issues identified in the order or 117 166 notice of hearing which triggered these proceedings.
Portland General Elcetric Co. et al. (Trojan Nuclear Plant), ALAS-534, Slip Op.
i.5 and n.6 (March 27, 1979); Heusten Lin.hting & Power Co. et al. (South Texas Proj ec t, Units 152), ALA3-381, 5 NRC SS2, 592 (1977).
To determine the jurisdiction of the boards in these cases, the proper inquiry is an examination of the hearing notice or order governing the case.
Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 152), ALAB-316, 3 NRC 167, 170-171 (1976); Philadelchia Electric Co. et a l.. (Peach Bot *.or A aic Pcwer Station, Units 253), LEP-73-32, 6 AEC 724, 736 (1973).
Issues related to the Tn! incident may be raised and considered in these proceedings only if such issues would be involved as a dire.t consequence
.r necessary 1: plication of the OL amendment which is the subject of the proceeding and have a sufficient.
.s to the OL amendment to be relevant r.o the proceeding.
Verront Yankee Nuclear Power Corp. (Vermo : Yankee ' _ clear Pcwer Station), AL'13-245, 3 AEC 373, 875 (1974).
Thu, for example, c,ere is no apparent relationship between issues that night be raised becaasn of the TMI incident and the questien as to whether an expansion of en-s.te spent fuel storage capacity should be authorized.
For this category of cases, then, the jurisdiction of the adjudicatory tribunals must he detersined on a case-by-case basis from the orders and notices which triggered the hearing.
If parties seek to raise TMI-related issues and those issues are within the scope of the board's jurisdiction, such =atters can be considered in the proceeding in question.
Otherwise, these ongoing proceedings do not provide the proper foru for 117 167
. such consideration.
- See, e.g. Union Electric Co. (Callaway Plant, Units 162), LBP-78-31, 8 NRC 366 (1973), af f 'd, ale 3-527, Slip Op. at p.36 (February 23, 1979).
III. Alternative Means for Seekin~ Consideration of TMI-Related Issues In these instances in which, because of jurisdictional prob 1ces, tembers of the public cannot have TMI-related issues litigated with regard to particular facilities by reopening past proceedings (see II.A, II.B supra) or injecting such issues into engoing proceedings (see II.E suora), there are other cethods by which these matters may be raised and considered.
ir svant to 10 CFR 52.206, re=bers of the public could request issuance of show-cause orders with regard to particular facilities.
Decisions of the appropriate director denying such requests are subject to review by the Cc= ission.
Also, such =atters could be raised in a direct petition to the Co: mission.
Although there is no specific regulation providing for such a petition, the Co= mission may entertain and has entertained sicilar petitions for relief (Sec, e.e. Portland General Electric Co. et al. (Trojan Nuclear Plant), Com'n Me=crandum and Order (unpublished), July 7,1978).
Fursuant to such requests, the Consission could appoint licensing boards and order hearings as it deens appropriate (Atccic Energy Act of 1954, as a= ended, Section 191, 42 U.S.C. 2241).
In addition, the Commission co"ld empower existing licensing boards p' in ongoing proceedings to consider TMI-related issues where are beyond the juris-diction currently possessed by those ;.n.
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CP & ESR CASES lases Before ASLB Cases Before ASI AB Cases Before Cc minston diens Creek 152 (CM Allens Creek 1arton 152 (CP) H(
s ng suspended Barton
- 1ack Fox 152 (CP)
Black Fox Llue Hills 152 (CP)
- herokee 1-3 (CP)
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Cherokee
- linch River (CP)
(Hearing suspended) iavis-Besse 263 (CP)
Davis-Besse 263 touglas Point 1&2 (CESR)
'(Both units deferred)
- rie 152 (CP)
't. Calhoun 2 (CP)
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'ulton 152 (ESR) reene County (CP) reenwood 253 (CP)
Proj ect "in hold" artsville 153 (CP)
Hartsville aven 152 ope Creek 152 (CP)
Hope Creek Hope Creek amesport 152 (CP)
Jamesport arble Hill 152 (CP)
Marble Hill idland 1&2 (CP) ontague 152 (CP)
ECO (not L'a'R) ev England Power 1&2 (CP) orth Coast 1 (ESR) f fshore Pot.er Systems (CP)
Offshore Power alo Verde 4&5 (CP) ebble Springs 152 (CP) erkins 1-3 (CP) hipps Bend 152 (CP)
Phipps Eend ilgric 2 (CP)
Pilgrim Seabrook 152 (CP) hearon Harris 154 (CP)
Shearon Harris hagit 152 (CP)
- t. Lucie 2 (CP)
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(con't) CP & ESR Cases ases Ecfore AST.B Cases Before ASLAS Cases Before Commission terling (CP)
Sterling undesert 162 (CP)
Application in suspension yrone (CP)
Tyrone PPSS 4 (CP)
WPPSS 4 Wolf Creek (CP) ellow Creek 162 (CP)
Yellow Creek
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II.
OL CASES lablo Cnyon 152 Diablo Canyon inna 1 ndian Point 1 Indian Point Indian Point aCrosse cCuire 1&2 idland 152 onticello 1 North Anna 1 North Anna 1 yster Creek 1 Peach Botton 253 Robinson 2 an Onofre 2&3 horehas unser 1 ntI-2 i==er 1 PPSS 2 outh Texas 1&2 crmi 2 usquehanna yron-Braidwood
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LICENSE AMENDMENT CASES ases Before ASLB Cases Before ASL\\B Cases Before Ccr. mission unboldt Bay (deletion of seismic conditions)
Indian Point 2 (Cooling Tower) aCrosse (SFP) oint Beach l&2 (SFP) obinson 2 (increase power level)
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alem 1 (SFP) r'ojan (SFP) roj an (Control Blcg.)
orth Anna 1&2 (SFP) ion 1&2 (SFP) resden 263 (SFP) resden-Quad Cities (Shipment of SFP) uke Power Co. (SF Transp.
& storage)
E Morris Operation Expansion (SF Storage)
IV.
"SPECIAL" CASES ig Rock Point (Incr.
mox fuels) urry 1&2 (Steam Gen.
replacement) allecitos: CETR (Show cause) not LWR allecitos: GETR (renewal) not LWR allecitos: (S:31) not IXR urkey Point 3&4 (Steam Generator repair)
Bailly (short piping proposal) alisades (replace =ent of 7g steam generatcrs) kii
-4_ V. AiTITRUST CASES Cases Before ASLB Cases Before ASIItB Cases Ecfore Commission Barton 1&2 Davis-Besse 1,2,3 Faricy 1&2 Midland 1&2 Perry 1&2 St. Lucie 2 , South Texas 1&2 Stanislaus 1 St. Lucie 1&2 Turkey Point 3&4 Virgil Sut=cr 1 Cc=anche Peak 1&2 VI. E!;FORCDE!;T CASES Atlantic Research Ccrp. Radiation Technology Union Electric Co. (Callaway Plant) e d \\\\7 \\72 .}}