ML19246B837
| ML19246B837 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 06/26/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7907180714 | |
| Download: ML19246B837 (11) | |
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NRC PUBLIC DCCUMENT ROOM UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION /
8-4 ATOMIC SAFETY AND LICENSING APPEAL BOARD Jt.
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&+6 Alan S.
Rosenthal, Chairtan 0.,s c8 45 Dr. John H. Buck
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Michael C.
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HERVED JUN 2 7 GS
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In the Matter of
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VIRGINIA ELECTRIC AND POWER
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Docket Nos. 50-338 OL COMPANY
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50-339 OL 3
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(North Anna Nuclear Power
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Station, Units 1 and 2)
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Mr. Stuart A.
Treby for the Nuclear Regulatory Commission staff.
Messrs. Michael W. Maupin, James N.
Christman and James M.
R1naca, Richmond, Virginia, for the applicant, Virginia Electric and Power Company.
MEMORANDUM AND ORDER June 26, 1979
( ALAB-5 51)
This is an operating license proceeding invciving the first 6
two units of the North Anna nuclear facility.
The L1 censing Board resolved all matters in centroversy in the applicant's favor.
LEP-77-68, 6 NRC 1127 (1977); LBP-78-10, 7 NRC 295 (1973).
No appeal was taken to us from either of those decisions.
Accord-
' #I(!g, ingly, as is customary in such circumstances, we reviewed them on as our own initiative.
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. The results of that review were announced lest August in ALAB-491, 8 NRC 245.
We there concluded that further action on our part.was required only with respect to three issues.
Two of them concerned the North Anna facility itself; more specifically, (1) the safety implications of the settlement of the land under-neath the facility's service water pumphouse and (2) the possi-bility that damage tc safety-related structures would be occasioned by turbine missiles.
(As to those issues, we subsequently ordered an evidentiary hearing,-1/ which was conducted last week.)
The third was the generic radon-release issue which is also being considered in a number of other proceedings.-2/
On April 2,' 1979, the NRC staff transmitted a " Board Notifica-tion" to the presiding licensing or appeal boards in a number of That notification, thc1 pending proceedings -- including this one.,
together with the documents which accompanied it, called attention to the existence of a safety question concerning the " current practice of relying on nonsafety grade equipment to mitigate the severity of anticipated operational occurrences ' (hereinafter the "nonsafety grado equipment" issue).
The notification prompted our issuance in this proceeding of ALA3-538, 9 NRC (April 12, 1979), in which we asked the l/
See ALA3-529, 9 NRC 153 (1979).
_1/
See ALAB-491, supra, 8 NRC at 250, fn. 12.
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. parties to brief us on two questions:
(1) our jurisdiction to consider the nonsafety grade equipment issue; and (2) the precise significance of that issue in the context of the North Anna facility.
In compliance with that request, the staff submitted a brief to which the applicant (but not the other parties) has responded.
As observed in ALAB-538,-3/ the staff has long been under A.
an obligation to keep licensing and appeal boards apprised of significant new developments in pending cases.
Duke Power Company (William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AZC 623, 625 (1973).
Last su=mer, the staff adopted detailed procedures for fulfilling this obligation; this'followed on the heels of a Commission policy pronouncement on the subject.
The April 2 notification hereinvolved presumably was thought required by thoce procedures.
Nonetheless, we enter-tained doubt respecting whether the notification could serve any useful purpose insofar as this proceeding was concerned.
The basis for this doubt was explained in ALA3-5 38 :
In short, we have only three issues now before us; all other issues have been resolved.
Of course, all parties must keep us informed of new develcpments pertaining to those issues.
But the cbvious question is whether in these circumstances we still have jurisdiction to consider unrelated issues -- such as the one
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9 NRC at fn.
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. covered by the staff document now before us.
If not, then such issues are exclusively within the staff's bailiwick, and no purpose is served by bringing them to our attention.
We have previously decided a closely related question in the context of construction permit cases.
- See, e.c.,
Public Service Company of New Hampsnire (Seabrook Units 1 and 2), ALAB-513, 8 NRC (December 21, 1978); Public Service Company of Indiana (Marble Hill Units 1 and 2), ALAB-530, 9 NRC (March 19, 1979).
Whether the same principles govern at this stage in operating license cases has not been passed upon.
9 NRC at (footnotes cmitted).-4/
Reduced to its essentials, the staff's response is that the jurisdiction of an appeal board to consider new matters arising during the course of its review of a licensing board decision does not hinge upon the nature of the proceeding.
- Rather, irrespective of whether a construction permit or an enerating license is involved, the pivotal factor is "the posture of the case and the degree of finality which has attached to the agency action which is in question".
Where, as here, finality has attached to scme but not all issues, appeal board jurisdiction to entertain new matters is dependent upcn the existence of a
" reasonable nexus" between those matters and the issues remaining before the board.
Thus, "[f]or this Appeal Board to have juris-diction with regard to the new matters raised in the April 2
--4/
We did, of course, acknowledge that any person might petition the appropriate staff official to take action pursuant to 10 CFR 2.206, as well as the right of the Commission to re-view the staff decision on such a petition.
9 NRC at fn.
6.
See discussicn, pp.
8-9, infra.
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5-Board Notification, a nexus between such matters and at least one of the [pumphouse settlement, turbine missile and radon]
issues must be shown".
Staff Br. pp.
3, 6,
13.
The applicant is in agreement with that analysis.
So, too, are we.
It is beyond dispute that, in the course of its review of an initial decision in a construction permit proceeding, an appeal board is free to raise sua sponte issues which were neither pre-sented to nor considered by the licensing board.
- See, e.g.,
Florida Power' and Light Co. (St. L:cie Nuclear Power Plant, Unit No. 2), ALAB-435, 6 NRC 541, 544-46 (1977).
It is equally plain that like pcwer exists in an operating license proceeding.
As a general rule, the inquiry in such proceedings is confined to "the matters put into cont-oversy by the parties to the proceed-ing".
But the Commission has expressly decreed that that limita-tion shall not apply "in extraordinary circumstances" where the board determines that there exists "a serious safety, environ-mental, or common defense and security matter" beycnd the ambit of the issues in controversy. 5/
10 CFR 2.760a and 2. 785 (b) (2),
codifying Consolidated Edison Co. of New York (Indian Point Nuclear Generating Station, Unit 3), CLI-74-28, 3 AEC 7 (1974).
_5/
Needless to say, the board notification procedures are designed, inter alia, to alert boards to the existence of such matters.
See, generally, Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1333, 1336 (1977).
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Section 2.785 (b) (2) was, of course, the foundation of our decision in the proceeding at bar to raise the turbine missile issue on our own initiative.
ALAB-491, supra, 8 NRC at 247-50.
The authority vested in the adjudicatory boards to raise or to consider new issues must be understood, however, to be qualified by settled principles relating to the finality of adjudicatory action; principles which govern our proceedings to no less an extent than those of the courts or other administrative agencies.
Thus, once an appeal board has wholly terminated its review of an initial decision -- whether it be a construction permit or an operating license proceeding -- its jurisdiction over the pro-ceeding comes to an end.
To be sure, that jurisdiction may be resurrected by a remand order of either the Commission or a court, issued during the course of its own review of our decision.
What might be considered by us on the remand would, however, be shaped by that order; i.e.,
if (as would custcmarily be the case) the remand related to only one or more specific issues, the finality doctrine would foreclose a broadening of its scope to embrace discrete matters.
As has been seen, in its current posture the proceeding at bar falls in between the two extremes of (1) no appeal board decision having yet been rendered on any issue and (2) an appeal board decisicn having been rendered on all issues.
By virtue of ALAS-491 (and the lack of any further review of it by Commission or court), the finality curtain has dropped or most of the issues l' C l \\
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On the other hand, three issues remain before us.
Last December, we confronted a parallel situation arising in the setting of a construction permit proceeding.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-513, 8 NRC 694 There, an intervonor moved to reopen, on the basis of new developments, the issue of the applicants' financial qualifications to construct and operate the Seabrook facility.
Observing that that issue had been determined by us in 1977 and that our decision on it had been affirmed in turn by both the Commission and the court of appeals, we held that we lacked jurisdiction to reopen it.
We added tnat this con-clusion was not altered by the fact that we still have before us an entirely discrete issue raised in the proceeding; viz., whether there is an alternative site in New England which would be "obviously superior" to the Seabrook site were use of a closed-cycle cooling system to be required at the latter site.
Neither our decision last April calling for a further exploration of that issue nor the Commission's directive in June that we (rather than the Licensing Board) conduct the exploration pur-ported to preserve our jurisdiction over other, unrelated questions.
3 NRC at 695-96 (footnote emitted).
See also, to the same effect, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530, 9 NRC (March 19, 1979).
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No good reason appears why any different result might obtain where, as here, an operating license proceeding is involved and the question is one of jurisdiction to entertain an entirely new issue (rather than to reopen a previously resolved one).
For the purposes of the application of the finality doctrine, the precise nature of the Commission license sought should be of little moment.
And, irrespective of whether a reopening of a determined issue, or instead the raising of an issue not earlier considered, is involved, the concept underlying the finality doctrine --
that litigation must come to an end at some point -- cones into play.
In both instances, the decisive factor is whether, except for those limited issues as to which jurisdiction has been ex-pressly retained, the case has been decided.
We hasten to add that, as stressed in both Seabrook and Marble Hill, the absence or loss of appeal board jurisdiction over a particular issue because of finality considerations does not mean that, even if clothed with serious safety or environ-mental implicaticns for the facility in quescion, the issue must be ignored.
To the contrary, it just falls within the staff's bailiwick, not ours.
It can be there reviewed on an informal basis; beyond that, either on his own initiative or upon the request of any individual (whether or not a party to the licensing proceeding), the Director of Nuclear Reactor Regulation is empowered to institute a shew-cause proceeding looking to the modification, suspension or revocation of a particular permit or O
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. license.
10 CFR 2.202, 2.206.-6/
In the show-cause proceed-ing, the new matter would be subject to full ventilation and the grant of such relief as might be warranted by the disclo-sures of record.-7/
B.
Although in agreement that our authority to consider the 'nonsafety grade equipment issue here turns upon the existence of a " reasonable nexus" between that issue and one of the issues over which we have retained jurisdiction, the staff and the applicant are of two minds on whether there is such a nexus.
The staff sees a " potential relationship" between the nonsafety grade equipment issue and the turbine missile issue; in any event, we are told, it is unable to state that "beyond all doubt
- no relationship whatsoever exists" (Staff Br. pp. 13-14).
For its part, the applicant maintains that a reasonable nexus does not exist.
_6/
The denial by the Director of a request for a show-cause order is reviewable by the Commission sua sponte.
--7/
To this point, we have confined our discussion to construc-tion permit and operating license proceedings.
In other types of proceedings (e.g.,
those involving applications for license amendments), tne licensing and appeal boards are limited ab initio to the issues identified in the notice of hearing wEich triggered the proceeding.
Thus, considerations of finality to one side, neither board would be empowered to consider any issue beyond those so identified.
Portland General Electric Co. (Trojan Nuclear Plant), ALA3-534, 9 NRC
,fn.
6 (March 27, 1979).
With respect to the issues emeraced by the notice of hearing, the above-explained principles would be fully applicable.
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We do not endeavor to resolve this disagreement now.
- Rather, we intend to carry the question with the case and to consider it, if then seemingly necessary, in conjuncticn with our decision on the turbine missile issue.
For the present, it should suffice to set forth a few guidelines which should be observed in the in-stance of future " board notifications".
As we noted in ALA3-538, 9 NRC at the notification with respect to the nonsafety grade equipment issue, and the documents which acccmpanied it, were too cryptic to permit an intelligent evuluation of the significance of the issue in the centext of this proceeding.-S/
N cearcely should require extended discussion, a
notification which suffers frem that infirmity is virtually use-
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less.
Although there =ay be no warrant for treating the subject at encyclopedic length, if the notification is to serve its intended purpose a board must be supplied with an exposition adequate to allcw a ready appreciation of (1) the precise nature of the addressed issue and (2) the extent to which the issue might have a bearing upon the particular facility before the board.
In this connection, the bald assertion that the issue has "no i= mediate safety significance" (see ALA3-538, 9 NRC at
) is insufficient.
Without the reascning underlying the assertien, it is obvicusly impossible for a board to pass an in-formed judg=ent en its validity.
Of course, where (as here) the board has limited remaining jurisdiction, the nctificaticn must additionally spell cut (unless readily apparent') the pcssible
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The staff's brief in response to ALA3-533 provided (at pp. 15-13) considerably more informatien in that regard.
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u/ J relationship between the subject matter of the notification and one or more of the open issues.
Action on the April 2, 1979 " Board Notification" is deferred.
It is so ORDERED.
FOR THE APPEAL SOARD
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C. Jeg 31snop Secretary to the Appeal Board
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