ML19224C510
| ML19224C510 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 06/01/1979 |
| From: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| FOIA-79-98 NUDOCS 7907020474 | |
| Download: ML19224C510 (17) | |
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June 1, 1979 UNITED STATES OF AMEI.iCA phg NUCLEAR REGULATORY COMMISSION t
t BEFORE THE COMMISSION 4 h In the Matter of
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SACRAMENTO MUNICIPAL UTILITY Docket No. 50-312 M'
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DISTRICT Rancho Seco Nuclear Generating h
Station
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NRC STAFF RESPDNSE TO REQUESTS FOR HEARING FILED BY FRIENDS OF THE EARTH, ET AL. AND BY RICHARD D. CASTRO AND GARY HURSH, MEMBERS, SMUD BOARD OF DIRECTORS 272 110 On May 7,1979 the Commission issued an immediately effective Order confirming the undertaking of the Sacramento Municipal Utility District (SMUD) to maintain its Rancho Seco Nuclear Generating Station in a shut-down conditicn until a number of short term modifications were performed to the satisfaction of the Director of Nuclear Reactor Regulation, and to thereafter accomplish a series of long-term modifications to further enhance the capability and reliability of the reactor to respond to various transient events. The Order further provided that the licensee or any person whose interest might be affected by the Order could request a hearing with respect to it, though any such request would not stay its immediate effectiveness. By letter dated May 15, 1979, Friends of the Earth, the Environmental Council of Sacramento, and the Original SMUD Ratepayers Association requested " formal hearings regarding the shutdown, modification, and reopening of Rancho Seco Nuclear Generating Station," to be held before resump-tion of operation of the plant." By telegram of May 25, 1979, Richard D. Castro a'nd Gary Hursh, two members of the SMUD Soard of Directors requested a hearing cn three enumerated issues.
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, The NRC Staff beliaves that some or all of the requesters may be entitled to a hearing upon satisfactory elaboration of how their interests may be affected by the Order, out that the holding of such a hearing before resumed operation of the facility (now pro,4ected for approximately June 6, 1979), is not legally requiced and is contrary to the intent of the Commission as reflected in its Order. The 51Iff aiso believes that many of the natters raised in the requests for hearing a e beyond the scope of the Order and. should be' considered as requests for additional enforcement action pursuant to 10 CFR 2.206. As more fully explained below, the Staff recommends that the Commission issue an order (1) confiroing that Rancho Seco will be permitted to resume operating as permitted by the Order upon satisfaction of the requirements of the Order prior to the completion of any required hearing, (2) identifying the scope of the issues to be heard in any hearing on the Order, and (3) delegating to an Atomic Safety and Licensing Board the authority to ascertain whether the requesters are " person (s) whose interests may be affected by the Order" and to conduct any required hearing.
I.
Whether any required hearing must be held prior to resumption of operation.
The Commission's Order of May 7, 1979 contained two elements:
(1) a suspension of operating authority for the sh' ort period of time required to effect modifica-tions deemed necessary to provide adequate assurance of protection for the public health, safety and interest, and (2) a requirement that additional modificatior,s be accomplished following the brief suspension.
Section 189a of the Atomic Energy Act explicitly provides for a hearing upon the request oi any persor, whose interest 272 111
. rnay be affected by a proceeding for the... suspending... of any license.
There is, of course, no question here of a hering prior to suspension, because suspension has been accomplished.
(The law is clear that while the norm is an oppcrtunity for hearing prior to suspension, the Commission is empowered to dispense with a prior hearing when the public health, safety or interest requires that a suspension be made effective immediately.
C_cnsumers Power Co. (flidland Plant, Units 1 and 2), 6 AEC 1032 (1973).)
The Staff believes that just as the Commission can take summary action in impring an immediate suspe1sion, so it may take summary action wit; tout prior hearing to lift an immediate suspension. Principally this is so because suspension prior to hearing (or c)portunity for hearing) is an extraordinary remady,~1/
justified only so lonb as thb facts supporting that acticn exist (in this case, the absence of the protective measures encompassed in items (a) through (e) of paragraph (1) of Section TV of the Order). When that situation changes the agency may (and arguably must) s marily lift the suspension and restore the original status cuo. See, Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir., 1973);
See also, ICC v. Orecon Pacific Indistries, Inc., 420 U.S.184 (1975) (concur ring cpinien); Union of Concerned Scientists v. AEC, 499 F.2d 1069,1081-82 (D.C.
Cir. 1974.
Sound policy requires that the flexibility of immediately effective, but modifiable suspensions be available:
if irrcr.ediate susoensions could not be changed witnout 1/ See Section 9(b), Administrative Procedure Act, 5 U.S.C. 55S(c); 10 CFR Es2.202(f) and 2.204.
It should be noted that the suspension action was taken here pursuant to agreement with the licensee. That agreement went only to shutdown pending the satisfactory completion of the shnrt term modifications.
272 112
. offering a prior hearing, then the agency might well be reluctant to issue them, such a situation would be contrary to the public interest.
Section 2.202(f) of the Commission's regulations supports the. view that the imediate suspension can be lif ted without prior hearing.
It provides that the proposed action may be made " temporarily effective pending further order."
(Emphasiss5pplied.) This provision seems to contemplate that the Director has discretion to modify the temporary suspension prior to the hearing and the Commission has so interpreted it in an analogous situation.
~
2/
In Midland, after a construction permit was granted, staff reviews revealed significant deficiencies in implementation of the licensee's quality assurance program, particularly with regard to cadwelding.
The Director of NRR issued a show cause order which included an immediately effective suspensiory,of-di cadwelding activities "pending further order" of the Director of NRR. An opportunity for hearing was provided but before the twenty days during which a hearing could be requested had expired, the Director of NRR issued an order lifting the suspension of cadwelding activities.
Petitioners in that case argued that the Director of NRR was not permitted to lift the suspension prior to the hearing. The Commission upheld the Director's action.
It said:
In view of the potentially serious consequences of summary suspension orders contemplating a later hearing, the Director of Regulation has discretion to modify such orders on the 2] Consumers Power Co. (Midland Plant, Units 1 and 2), 6 AEC 1082 (1973).
272 113
.... basis of subsequent developments warranting such action, prior to the hearing.
If the rule were otherwise, the Director might well be reluctant to issue summary orders, knowing that (under petitioners' theory) they must remain unchanged and in effect for substantial periods of time, regardless of changed circumstances.
Such a rule would be inimical to the public interest.
The foregoing discussion sets forth the bases for the Staff's belief that a 7 Order is not iiearmg on theguspension accomplished by the Commission's May required prior to termination of that suspension.
That is not to say that the Comission may not hold such a hearing in its. discretion, should it ci,cose to cc A.
The record of this proceeding, however, seems to indicate that a different course was contemplated by the Commission.
ihe explicit offer of an opportunity for hearing in the Order indicates clearly t:1e. the Commission expected that a hearing would be held at some time, if one was requested.by a person whose interest was affected by the Order. The Order
' ally clear, however, that the suspension of operating authority would be in effect only until the required short term modifications were accomplished, and ti'at a request for hearing would "not stay the immediate effectiveness of this Order."
If the Commission agrees that the suspension may end upon satisfactory completion of the short term modifications, the Staff respectfully suggests that the Commission now provide guidance as to the course it wishes the Staff to follow after making a
& ter-ination that the requirements of the Order have been satisfied.
Because the ic_:s:s for hearing have triggered the applicability of the g parte communication 272 114
, rule (10 CFR 2.780) the Staff cannot follow its practice of discussing such significant actions with the Commission in a relatively informal open meeting.
Accordingly, the Commission should decide whether it wishes to schedule considera-
. tion of any proposed restart formally as part of this proceeding, or whether it wishes the Director of NRR to exercise the authority spelled out in the May 7 Order without further consultation with the Commission.
V II. The Issues to be Heard Unlike many enforcement proceedings, the Order in this matter does not precisely identify the issues to be heard in the event of a hearing.
The Staff believes that the Commission should now identify those issues, making it clear that any hearing will be re, lated to the enforcement actions ordered by the May 7 Order, 4/
and will not encompass requests for additional enforcement action.-
In the view of the Staff, the following are the appropriate issues to be heard in a hearing after the suspension has been terminated:-S/
1.
Whether the "short term modifications" required by subparagraphs (a) through (e) of paragraph (1) of Section IV of the Order have been satisfactorily completed.
3/ Co pare 10 CFR 2.202(a)(4) which provides that a show cause order will "specify the issues."
4/ Any such requests for additional action should be referred to the Director, tiRR, pursuant to 10 CFR 2.206.
~5/ In the event that there is a hearing, it would be open to the Board and the parties to more specifically ascertain the precise aspects of these relatively broad issues which are in controversy and need to be litigated. The full range af pr ocedural devices in the Commission's regulations such as discovery, stipula-ticns, prehearing conferences and sumuary disposition are available for this purpose.
2.7 2 I I,3
2.
Whether the "short term modifications" required by subparagraph (a) through (e) of paragraph (1) of Section IV of the Order provide reasonable assurance that the reactor system will respond safely to feedwater transients during the period required to accomplish the required "long-term moaifications."
3.
Whether the licensee should be required to accomplish the "long term modificationsspecifiedbgptheOrder.
If so, on what schedule.
4.
Whether accomplishment of the long term modifications required by the Order provides continued reasonable assurance that the reactor system will respond safely to feedwater transients, s
III. Procedural Course As outlined in Part I above, the Staff believes that it is legally permissible, and consistent with the Commission's intent, to permit the temporary suspension to end, and to hold a hearing on the Order thereafter. We have identified in Part II the issues which we believe should be the subject of such a hearing. The information necessary to rule on these matters is already before the Commission.
Whether the requesters are persons whose interests are affe.ted bj( the Order, however, is a matter which requires further elaboration. The very general assertions in the two requests for hearing do r.ot provide a sufficient basis for finding that the requesters are such interested persons.
In particular, it f
s 272 116
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-;rs that Messrs. Castro and Hur>5 have made their request as individual of the SMUD Board rather than as authorized representatives of SMUD.
e stro A.cordingly, a showing of how their interests as individuals are affected by be the Order will be required if their joint request for a hearing is to Accordingly, the Staff recommends that all requesters be given an gr:nted.
c;portunity to make a satisfactory showing on this point, and that an Atomic Such a C:';ty and Licensing Board be establiphed to rule on this matter.
Board should also be delegated the authority to conduct any required hearing.
s CONCLUSION Fne the foregoing reasons, the Staff recommends that the Commission issue an order (1) confirming that Rancho Seco will be permitted to resume operating us carmitted by the Order upon satisf action of the requirements of the Order prior t'o the completion of any required hearing, (2) identifying the scope of 9e issues to be heard in any hearing on the Order, and (3) delegating to an to ascertain whether the Atomic Safety and Licensing Board the authorit, "uesters are " person (s) whose interests may be affected by the Order" and conduct any required hearing.
t Respectfully submitt d,
/
e
~97 Guy H. Cunnig am, III Assistant Chief Hearing Counsel batedatBethesda, Maryland u.is ist day of June, 1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI0'N BEFORE THE COMMISSION In the Matter of SACRAMENTO MUNICIPAL UTILITY Docket No. 50-312 DISTRICT Rancho Seco Nuclear Generating Station CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO REQUESTS FOR HEARING FILED BY FRIENDS OF THE EARTH, ET AL. AND BY RICHARD D. CASTRO AND GARY HURSH, MEMBERS, SMUD BOARD OF DIRECTCRS", in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 1st day of June, 1979:
David S. Kaplan, Esq.
Leonard Bickwit, Esq.*
Secretary and General Counsel General Counsel P. O. Box 15830 U.S. Nuclear Regulatory Commission Sacramento, California 95813 Washington, D.C.
20555 Timothy V. A. Dillon, Esq.
Atomic Safety and Licensing Board Panel
- Suite 380 U.S. Nuclear Regulatory Commission 1850 K Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20006 Atomic Safety and Licensing Mr. Richard D. Castro Appeal Board Panel
- Mr. Gary Hursh U.S. Nuclear Regulatory Commission Sacramento Municipal Utility Washington, D.C.
20555 District 6201 S Street Mr. Samuel J. Chilk*
P. O.
Box 15830 Secretary of the Commission Sacramento, California 95817 U.S. Nuclear Regulatory Comnission Washington, D.C.
20555 Mr. Mark Vandervelden Ms. Joan Reiss Docketing and Service Section*
Mr. Robert Christopherson Office of the secretary Friends of the Earth U.S. Nuclear Regulatory Comnission California Legislative Office Washington, D.C.
20555 717 K Street, #208
/c72 l)b Sacramento, California 95814 se f
Guy H. Cunnjhgnam, III Assistant Chief Hearing Counsel
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NUCLEAR REGULATORY COMMISSION
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BEFORE THE COMMISSION O
la the Matter of
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Rancho Seco Nuclear Generating
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7 NRC STAFF RESPONSE TO REQUESTS FOR HEARING FILED BY FRIENDS OF THE EARTH, ET AL. AND BY RICHARD D. CASTRO AND GARY HURSH, MEMBERS, SMUD BOARD OF DIRECTORS
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fa c y s
le ey 7,1979 the Commission issued an immediately effective Order confirming the unuertaking of the Sacramento Municipal Utility District (SMUD) to maintain its Runeo Seco Nuclear Generating Station in a shut-down condition until a smoer of short term modifications were performed to the satisfaction of the rirector of Nuclear Reactor Regulation, and to thereaf ter accomplish a series oi !cng-term modifications to further enhance the capability and reliability of
.cctor to respond to various transient events.
The Order further provided that the licensee or any person whose interest might be affected by the Order could request a hearing with respect to it, though any such request would not stay its irrediate effec *iveness.
By letter dated May 15, 1979, Friends of the Earth, the Environmental Council of Sacramento, ant i.' Original SMUD Ratepayers Association requested " formal hearings regarding the shutdown, modification, and reopening of Rancho Seco Nuclear Generating Station," to be held before resump-Mr> ef op; ration of tne plant.
By telegram of May 25, 1979, Richard D. Castro
[
' 'krsh, two members of the SMUD Board of Directors requested a hearing
'bree enumerated issues.
c 272 119
2 The NRC Staf,f believes that some or all of the requesters may be entitled to a hearing upon satisfactory elaboration of how their interests may be affected by the Order, but that the holding of such a hearing before resumed operation of the facility (now scheduled for approximately June 5, 1979), is not legally required and ie antrary to the intent of the Commission as reflected in its,
Order. The Staff also believes that many of the tters raised in the requests for hearing are beyond the scope of the Order aad should be' considered as requests p
for additicnal enforcement action pursuant to 10 CFR 2.206. As more fully explained below, the Staff recommends that the Commission issue an order (1) confirming that Sc c h, fce, e,:l l de m,,.ih / J.,
reiu,> e ccd;.
er e v a ti v h. he L le c
/
-i.i.: m ovision for r eep w.nci ghhg upo[ satisfaction of the requirements of the Order wi44-bc-pet-.itty prior to the completion of any reguired hearing, (2) @ identifying the ssues to be heardgin any hearing on the Order, and r
(3) ' delegating to the Atomic Safety and Licensing Board Panel the authority to ascertain whether the requesters are " person (s) whose interests may be affected r c s. 6 k e -
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e o,. A c 6 by-the Ordeg" c, /
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I.
Whether any required hearing must be held prior to resumption of operation.
The Commission's Order of May 7,1979 contained two elements:
(1) a suspension of operating authority for the short period of time required to effect modifica-tions deemed necessary to provide adequate assurance of protection for the public health, safety and interest, and (2) a recuirement that additional modifications ha accomplished following the brief suspension.
Section 189a of the Atomic Energy Act exp t ;ritly provides for a hearin; upon the request of any person whose interest 272 120
affected by a proceeding for the... suspending..... of any license.
- 3. of course, no question here of a hearing prior to suspension, because suspension has been accomplished.
(The law is clear that while the norm is an crrortucity for hearing prior to suspension, the Commission is empowered to ci' ome wi'h a prior hearing when the public health, safety or interest requires v.at a sespens.on be made effective immediately).
7 Tha Start ;elieves that just as the Cc.TEission can take summary action in igesi.19 an immediate suspension, so it may take summary action without prior w.ng to lift an immediate suspension. Principally this is so because 2 %ct.s.cn prior to hearing (or opportunity for hearing) is an e.$traordinary ret.2 ay,~1/
only justified so long as the facts supporting that action exist (in t'F.s cne, 'he absence of the protective measures encompassed in items (a) through (e) of paragraph (1) of Section IV of the Order).
When that situation changes the agency mdy (and arguably must) summarily lif t the suspension and restore the.
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' status cuo.
See, Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.,1978);
Sec abo,, ICC v. Gregon Pacific Indistries, Inc., 420 U.S.184 (1975) (concurring
., 4 n w ).
ii b c~md 9,licy requires, the flexibi.lity of immediately effective, but temporary, n..Mk u
suspensions:
if immediate suspensions were fixed and could not be changed without A
l_/ 5ee.tection 9(b), Administrative Procedure Act, 5 U.S.C. 558(c); 10 CFR Sb2.202(f) ar.d 2.204.
It should be noted that the suspension action was taken here pursuant to r eement with the licensee.
That agreement went only to shutdown pending the
'tisf actory co.,pletion of the shurt tcrn modifications.
272 121
offering prior hearing, then the agency might well be reluctant to issue them.
Such a situation would be contrary to the public interest.
Section 2.202(f) of the Commission's regulations supports the view that the immediate suspension can be lifted without prior hearing.
It provides that '
the proposed >xtion may be made " temporarily effective pending further order."
(Emphasis supplied.)
This $rovifion seems to contemplate that the Director has discretion to modify the temporary suspension prior to the hearing and the Commission has so interpreted it in an analogous :ituation.
k In Midland,~2/af ter a construction permit was granted, staff reviews revealed significant deficiencies in implementation of the licensee's quality assurance program, particularly with regard to cadwelding.
The Director of NRR issued a show cause order which included an immediately effective suspension of all An cadwelding activities "pending further order" of the Director of NRR.
opportunity for hearing was provided but before the twenty days during which a hearing could be requested had expired, the Director of NRR issued an 6rder lif ting the suspension of cadwelding activities.
Petitioners in that case '
argued that the Director of NRR was not permitted to lif t the suspension prior to the hearing. The Commission upheld the Director's action.
It said:
In view of the potentialls serious consequences of summary suspension orders contemplating a later hearing, the Director of Regulation has discretion to modify such orders on the 2/ Consumers ?ower Co. (Midland Plant, Units 1 and 2), 6 AEC 1C32 (1973).
272 122
. a t
basis of subsequent developments warranting such action, prior to the hearing.
If the rule were otherwise, the Director might well be reluctant to issue summary orders, knowing that (under petitioners' theory) they must remain unchanged and in effect for substantial periods of time, regardless of changed circumstances.
Such a rule would be inimical to the public interest.
The foregoing discussion sets forth the bases for the Staff's belip{e.tha 0
not hearing on the suspension accomplished by the Commission's May 74 rc; t
required prior to termination of that sdspension.
That it not to say that the Commission may not hold such a hearing in its discretion, should it choose to do so.
The record of this proceeding, however, seems to indicate that a different course was contemplated by the Commission.
The explicit offer of an opportunity for hearing in the Order indicates clearly that the Commission expected that a heari ig would be held at some time, if one was requested.by a person whose interest was affected by the Order. The Order,
was equally clear, however, that the suspension of operating authority would be in effect only until the required short term modification were accomplished, and that a request for hearing would "not stay the immediate effectiveness of this Order."
e 7~
IftheCommissionagreesthatthesuspensionmay/nduponsatisfactorycompletion of the short term modifications, the Staff respectfully suggests that the Commissicn ncw provide guidance as to the course it wishes the Staff to follow.
Because the requests for hearing have triggered the applicability of the ex parte communication 272 123
.4
/
'i9 CTR 2.W) the Staff cannot follow its normal practice of discussing M
2 - -
such significant actions with the Commission in a relatively informal open me.eting. Accordingly, the Commission should consider whether it wishes to
. r.edle consideration of any proposed restart formally as part of this proceed-or c.htther it wishes the Director of NRR to exercise the authority spelred i.
ott in the May 7 Order without further consultation with the Commission.
V V
II.
The Issues to be Heard o il @ many enforcement proceedings, the Order in this matter does not precisely 3/
identi'y the issues to be heard. in the event of a hearing.
The Staff be'lieves s
that tLe Cor. mission should now identify those issues, making it clear that any hecrir.g will be related to the enforcement actions ordered by the May 7 Order, 4/
M y ill not encompass requests for additional enforcement action.~
In the view of the Staff, the following are the appropriate issues to be heard:-S/
1 Unether the "short term modifications" required by subparagraphs
?; through (e) of paragraph (1) of Section IV of the Order have been satisfactorily completed.
3/ Compare 10 CFR 2.202(a)(4) which provides that a show cause order will "specify
"'e issues."
(/ Any such requests for additional action should be referred to the Director, NRR, pursuant to 10 CFR 2.206.
Ne jf In the event that there is a hearing, it would be open to the, parties) to mor S n./ :-
specifically ascertain the precise aspects of these relatively broad issues which we in ccatroversy and need to be litigated.
The full range of procedural devices in the Comission's regulations such as discovery, stipulations, prehearing con-
" 's and sumnary disposition are available for this purpose.
272 124
2.
Whether the "short term modifications" required by subparagraph (a) through (e).of paragraph (1) of Section IV of the Order provide rease,nable assurance that the reactor system will respond safely to feedwater transients during the period required to accomplish the required "long-term modifications."
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3.
Shoe 4d the licensee be required to accomplish the "long term modifications e
j specifiedbytheOrder/ If so, on what schedule.
s
}
4.
Whether accomplishment of the lon~g term modifications required by the Order provides continued reasonable assurance that the reactor system will respond safely to feedwater transients.
s III.
Procedural Course
,I As outlir,ed in Part i above, the Staff believes that it is legally permissible, and consistent with the Commissiori s in' tent, to permit the temporary suspcasion to end, and to hold a hearing on the Order thereaf ter. We have identified in Part II the issues w.
.h we believe should be the subject of such a hearing.
The information necessary to rule on these matters is cTready before the Commission.
Whether the requesters are persons whose interests are affected by the Order, however, is a matter which requires further elaboration. The very jeneral assertions in the two requests for hearing do not provide a sufficient basis for finding that the requesters are such interested persons.
In particular, it 272 125
~.. -
e -
1 appears that Messrs. Castro and Hursh have~nade their request eg individuals
/
rather than as authorized r.epresentatives of SMUD.
Accordingly, a showing of how their interests as individuals are affected by the Order will be required
. l
_ :4. 4 if their reques for a hearing is to be granted.
Accordingly, the Staff recomends A
that all requesters be given an opportunity to make a satisfactory showing on' this point, and that an Atomic Safety and Licensing Board be established to rule on this cl../}
/
matter. PSuch a Boardjould also be delegated the authority to conduct any required hearing.
\\
CONCLUSION For the foregoing c 3asons, the Staff recommends that the Commission issue an order (1) confirming that the provision for resumption of operation upon satisfaction of the requirements of the Order will be permitted prior to the completion of any required hearing, (2) precisely identifying the issues to be heard, in any hearing on the Order, and (3) delegating to the Atomic Safety and Licensing Board Panel the authority to ascertain whether the requesters are nd 4 c o., cLV
" person (s) v. hose interests may be affected by the Orderj" c.7
" 2 " "c I b ' r'"/
Respectfully submitted, Cay H. Cunningham, III Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this 31st day of May,1979.
272 126