ML19257C339
| ML19257C339 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/23/1980 |
| From: | Reis E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8001280455 | |
| Download: ML19257C339 (20) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-400 CAROLINA POWER AND LIGHT COMPANY
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50-401
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50-402 (Shearon Harris Nuclear Power
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50-403 Plant, Units 1, 2, 3 and 4)
)
NRC SUPPLEMENTAL MEMORANDUM IN SUPPORT OF EXCEPTION TO SUPPLEMENTAL INITIAL DECISION January 23, 1980 Edwin J. Reis Assistant Chief Hearing Counsel 1825I89 s001280 1-5 5
TABLE OF CONTENTS Page TABLE OF AUTHORITIES........................
ii BACKGROUND.............................
1 DISCUSSION.............................
1 1.
10 CFR 2.104(a) Does Not Grant Authority To A Licensing Board Considering A Construction Permit To Provide For A Hearing On An Operating License...........
1 II.
The Conclusion Of The 3sard Entitles CP&L To An Unconditioned License Under 10 CFR 50.35(a)........
10 CONCLUSION 12 1825 290
- ii -
TABLE OF AUTHORITIES Page JUDICIAL CASES Power Reactor Development Corp. v. International Union, 367 U.S. 396 (1961)........................
4,12 Vermont Yankee Nuclear Power Coro
- v. Natural Resources Defense Council, 435 U.S. 519 (1978) 4 COMMISSION CASES Arke.nsas Power & Light Co. (Arkansas Nuclear One, Unit 2),
ALAB-94, 6 AEC 25 (1973) 5,8 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8 (1976) 3,12 Consolidated Edison Co. of New York (Indian Peint Station, Uni ts 1, 2 & 3), ALAB-3: 9, 3 NRC 188 (1976).........
3,4,12 Consumars Power Co. (Midland Plant, Units 1 & 2), ALAB-450, 6 NRC 887 (1977) 8 Florida Light & Power Co. (Turkey Point Nuclear Generating Units 3 & 4), Commission, a AEC 9 (1967) 9 Florida Power Co. (Crystal River, Unit 3 Nuclear Generating Plant), Commission, 4 AEC 318 (1970) 3,9,12 Gulf States Utilities Co. (River Bend Station, Units 1 & 2),
ALAB-183, 7 AEC 222 (1974) 3 Gulf States Utilities Co. (River Bend Station, Units 1 & 2),
ALAB-444, 6 NRC 760 (1977) 11,12 Houston Lightina & Power Co_. (South Texas Project, Units 1 & 2),
CLI-77-13, 5 NRC 1303 (1977) 8 Houston Lighting & Power Co. (South Texas Project, Units 1 & 2),
ALAB-38, 5 NRC 582 (1977).....................
7,8 National Bureau of Standards, Commission, 2 AEC 323 (1963) 9 1826 291
- iii -
TABLE OF AUTHORITIES (Cont'd)
Page Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1),CLI, 10 NRC (December 12, 1979).......
12 Offshore Power Systems (Floating Nuclear Plant), CLI-79-10, 10 NRC (September 14, 1979) 7 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 A 2), ALAB-316, 3 NRC 167 (1976) 7 Tohdo Edison Co. (Davis-Besse Nuclear Power Station, UEts 1, 2 & 3), ALAB-560,10 NRC (September 6,1979) 8 Virainia Electric & Power Co. (North Anna Nuclear Station, Uni ts 1 & 2), ALAB-551, 9 NRC 704 (1979)..............
7,12 Washinoton Public Power System (WPPSS Nuclear Project No. 2),
ALAB-571,10 NRC (November 14, 197 9 )..............
4 STATUTES Administrative Procedure Act, 5 USC 551-558 7
Atomic Energy Act, as amended, 42 USC 2011 et seq.
5105(c), 42 USC 2135(c)....................
8 s185, 42 USC 2235.......................
4 5189, 42 USC 2239.......................
4 5191, 4 2 llS C 2241.......................
7 REGULATIONS 10 CFR 1.1(b) 5 10 CFR 1.11 7
10 CFR Part 2 5,6 10 CFR 2.4(e) 5 1825 292
-iv-TABLE OF AUTHORITIES (Cont'd)
Paae 10 C FR 2.10 2...........................
3 10 CFR 2.104.
6 10 CFR 2.104(a, 2,3,4,5,6,8,10,12 10 CFR 2.104(b) 5,6,8 10 CFR 2.164(c) 6 10 CFR 2.104(d) 5 10 CFR 2.105 4,6 10 CFR 2.105(a) 4 10 CFR 2.105(c) 8 10 CFR 2.105(e) 3,4,6,8,12 10 CFR 2.107 7
10 CFR 2.704.
6 10 CFR 2.707..........
6 10 CFR 2.714.
6 1 0 C F R 2. 71 7...........................
7 7
10 CFR 2.718.
1 0 C F R 2. 7 21...........................
7 10 CFR 20.3(a )......
5 3
10 CFR Pcrt 50 10 CFR 50.3 b
10 CFR 50.34(a) 10,11,13 10 CFR 50.35(a) 10,11,13 10 C FR 70. 4 ( d )..........................
5 MISCELLANE0US Commission Policy Statement of November 9, 1979, 44 Fed.
Rec. 65049 (November 11, 1979)..................
3 Notice of Hearing, September 21, 1972, 37 Fed. Reg. 22034 (September 29, 1972).......................
8 1825 293
01/23/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-400 CAROLINA POWER AND LIGHT COMPANY
)
50-401
)
50-402 (Shearon Harris Nuclear Power
)
50-403 Plant, Units 1, 2, 3 and 4)
)
IIRC SUPPLEMENTAL MEMORANDUM IN SUPPORT OF EXCEPTION TO SUPPLEMEllTAL INITIAL DECISION BACKGROUND On September 4,1979, the flRC Staff filed its brief in support of exceptions to the Licensing Board's determination of July 13, 1979.
The Board had ordered that the Construction Permits it had previously authorized be amended to require a hearing upon the application for the operating license for the subject facilities which would consider the management capability and technical qualifications of the Applicant.
The Staff took the position that the Board's order was ultra vires as only the Comission or a board designated to consider inter,antion petitions could order a hearing on an operating license application.
By order of October 12, 1979, this Appeal Board invited the Licensing Board to supplement its opinion, and to furnish its views on its authority to impose the S more complete history of this proceeding is set fort'l at pp. 2-3 of the ANRC Staff Brief in Support of Exceptions to Supplemental Initial Decision.
1825 M4 subject condition on the construction permit. By order of December 29, 1979, prior to the Licensing Board's response, this Appeal Board directed the NRC Staff to file a supplemental memorandum by January 15, 1980, on whether the phrase in 10 CFR 2.104(a) "or in which the Commission finds that a hearing is required in the public interest," guve authority to the Licensing Board to condition the construction permit to provide for a hearing on an application for the operating license.
In this connection the Appeal Board particularly asked the Staff to address the following questions:
(1) Whether a licensing board can make such a finding on the Comission's behalf as its delegate.
(2)
If so, whether such a finding with regard to a hearing on an operating license application can be made by the licensing board at the time it acts upon the con-struction permit application.
(3)
If so, whether the challenge 0 condition imposed by the Licensing Board in this proceeding (LBP-79-19, 10 NRC 37, 98 (July 13,1979)) can fairly be taken as enccmpassing a finding that a hearing on the operating license application is required in the public interest (at least on the issue of the applicant's management capability and technical qualifications to operate the Shearon Harris facility).
Sua sponte, the Appeal Board, by subsequent orders, extended the Staff's time to respond to 10 days after the supplemental memorandum of the Licensing Board and provided that the Staff need not confine its discussion of that Memorandum to the above questions.
Appeal Board Orders of January 3 and January 15, 1980.
The Staff reiterates the position it took in its brief of September 4,1979, that a licensing board constituted to conduct hearings on a construction permit application does not have delegated authority to require a hearing in the public interest on a subsequent operating license application.
The Staff further 1825 295
. believes that the challenged condition imposed by the Licensing Board is a finding that a hearing is necessary in the public interest.
However, the Staff believes that the Licensing Board has no authority or factual basis to make such a finding or impose such a condition.
DISCUSSION I.
10 CFR 52.104(a) Does Not Grant Authority To A Licensing Board Constituted To Consider A Construction Permit To Provide For A Hearing On An Operating License.
As detailed in our prior memorandun, of September 4,1979 (pp.11-15), Comission regulations provide that there shall be no hearings on an operating license application unless there are issues put in controversy by those who might be affected by the facility or the Commission orders such a hearing.
10 CFR 2.105(e);
Consolidated Edison Co. of New York (Indian Point Station, Units 1, 2 & 3),
ALAB-319, 3 NRC 188,190 (1976); Cincinnati Gas & Electric Co., (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 9, 12 (1976); Gulf States Utilities C_o. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222, 226 n.10 (1974).
The framework of regular Comission procedures involving review of operating license applications by the Staff under 10 CFR 2.102 and 10 CFR Part 50 and Commission action on the Staff's recomendations, 2_/
is deemed sufficient to protect the public health and safety without adjudicatory hearings.
Florida Power Co.
(Crystal River, Unit 3 Nuclear Generating Plant, Commission, 4 AEC 318, S n a policy statement of November 9,1979, the Commission suspended the usual I
authority of the Director of Nuclear Reactor Regulation to issue operating licenses where no formal hearings are required.
It provided that whether or not formal hearings are required, operating licenses would be issued only after action of the Commission itself.
44 Fed. Reg. 65049 (November 11,1979).
1825 296 321-322 (1970); Consolidated Edison Co. of New York, supra 3 NRL at 190,193.
See also Washington Public Power Supply System (WPPSS Nuclear Project No. 2),
ALAB-571, 10 NRC (Slip opinion, November 14,1979, pp. 3,10).- I At this early date, before an application for an operating license has even been submitted no grounds exist for changing this policy. It cannot be presumed that the Staff and the Commission will not do a proper job in seeing that CP&L has the requisite SSections 185 and 189(a) of the Atomic Energy Act, as amended, 42 USC 2235 and 2239(a) and the Connission's Regulations and Rules of Practice in 10 CFR 66 2.104(a) and 2.105 establish two distinct proceedings for nuclear utilization facilities--one on the application for the construction permit for such a facility and one on the application for an operating lhense for the facility.
Power Reactor Development Co. v. International Union, M7 U.S. 396, 405 (1961),
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 526-7 (T978). By statute, hearings are required on an application for the fonner, but not on an application for the latter in the absence of a proper request for a hearing.
The Commission's regulations provide different mechanisms for the initiation of hearings on applications for these two different authorizations.
On applications for construction permits, the Secretary of the Commission publishes notice of hearing.
10 CFR 2.104(a).
Upon applications for operating licenses, unless the Comission provides otherwise, only an opportunity for a hearing is published.
Absent proper intervention no hearing is held and the operating license is directly issued by the Director of Nuclear Reactor Regulation, without authorization of any board.
10 CFR 2.105(a) and (e). As stated in Consolidated Edison Co. of New York, supra at 190:
If no one opposed to the grant of the [ operating] license (or any of its conditions) exercises the opportunity to intervene or request a hearing, no hearing will ordinarily be held.
In that situation, the decision whether and on what terms to issue an operating license is left entirely to the staff, which makes its decision on all relevant safety matters without consulting with or obtaining the approval of a licensing board.
[ Footnote deleted].
However, see fn. 2, supra.
Further, when petitions to intervene are received it is only specifically designated boards which have the delegated authority to pass on these petitions.
10 CFR 2.105(e).
1825 29.7 qualifications for an operating license without an adjudicatory hearing.
See Arkansas Power & Light Co. (Arkansas Nuclear One, Unit 2), ALAB-94, 6 AEC 25, 28 (1973); fonsolidated Edison Co. of New York, supra at p.193.
10 CFR 62.104(a), does not give construction permit licensing boards. authority to order hearings on operating license applications in providing that hearings will be held when "the Commission finds that a hearing is required in the public interest." The boards are not delegates of the Comission under this provision of the regulations.
In contrast to other parts of the Commission's Regulations and Rules of Practice, 4! Part 2 of the Comission's Regulations and Rules of Practice, defines the term "Comission" to be "the Commission of five members or a quorum thereof sitting as a body... or an officer to whom has been delegated authority pursuant to section 161n of the [ Atomic Energy] Act."
10 CFR 52.4(e).
(Cf. Licensing Board Memorandum of January 14, 1980, at pp. 3-4).
In accordance with this definition in Part 2 of 10 CFR, where the licensing board or a presiding officer of that board is given authority to act for the Comission in Part 2, the regulation particularly specifies that the board or the officer has that delegated authority.
10 CFR 52.104(a), (b) and (d) state that the Comission shall decide when hearings shall be held and what they shall consider, while S ee ej., 10 CFR 5520.3(a)(5), 50.3(d), 70.4(d) where " Commission" is defined S
as the " Nuclear Regulatory Comission or its duly authorized representatives."
See also 10 CFR 61.l(b).
1825 298
. 10 CFR 52.104(b)(3) and (c) particularly provide that presiding officers shall make certai6 determinations.
In 10 CFR 62.105(e) it is provided that petitions to intervene may be acted on by either the Commission or a board designated for that purpose. S Thus in the Conmission's Rules detailing how hearings are initiated,10 CFR 2.104 and 2.105, the term " Commission" does not subsume licensing boards.
Instead each body is separately identified.
Similarly, in dealing with the powers and duties of the boards and their presiding officers--the Commission and the boards are generally separately delineated.
For example, in 10 CFR 652.704, 2.707 and 2.714 the Commission and the presiding officers of the licensing boards are each separately identified as having the same specified functions.
Again the term " Commission" does not subsume the " boards" or their presiding officers.
In sum, in Part 2 of the Comission's Regulations the term
" Commission" is not defined or generally used to encompass the various licensing boards or their presiding officers.
10 CFR 62.104(a) in providing that the Commission may find a hearing required in the public interest--does not impliedly delegate similar powers to the licensing boards.
Further, the Statement of Organization in Part I of the Cormission regulations does not grant the licensing boards any authority to set hearings. The boards are not general S It is noted that the directors of Staff operating offices have determined that opportunities for public hearings should be had on matters before them.
Here the Licensing Board had no jurisdiction to act on an operating license, and so could not provide for a hearing as a concomitant of such power.
1825 299 delegates of the Commission with the ability to take any action on a matter before them that the Comission could take.S 10 CFR 51.11 provides only that the boaTds shall " conduct such hearings as the Commission may authorize or direct, make such intermediate or final decisions as the-Commission may authorize in proceedings to grant, sr, pend, revoke or amend license or authori-zations, and perform such other regulatory functions as the Commission may specify." See also Section 191a of the Atomic Energy Act, as amended, 42 USC 2241; 10 CFR 2.721(a).
No authority is generally given to the boards to initiate any proceedings, but only to hear and decide matters directly before them.
7)
Thus, a board's authority is not general, but is circumscribed by the particular delegation in the notice of hearing constituting that board.
See Atomic Energy Act, as amended.
- 5191, 42 USC 52241; 10 CFR 551.11, 2.104, 2.107, 2.721(a);
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & M, ALAB-316, 3 NRC 167,169-171 (1976); Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582, 592 (1977). As the Licensing Board recognizes S ee generally Offshore Power Systems (Floating Nuclear Plant), CLI-79-10 S
10 NRC (slip op. at p. 7, September 14,1979); Virginia Electric &
Power Co. (North Anna Nuclear Station, Units 1 & 2), ALAB-551, 9 NRC 704 (1979); 10 CFR 2.717(a).
S e Board cites the procedural delegations in 10 CFR 2.718 and the Administrative Th Procedure Act, 5 U.S.C. 551-558.
However, these delegations are limited by their terms to the conduct of hearings, and do not give the boards or presiding officers general authority to take action on behalf of the Comission or to provide any remedies unless the euthority to do so is otherwise granted.
1826 300 in its Memorandum of January 14,1980, at pp. 9-10, its delegation here was limited by the Notice of Hearing of Seotember 21, 1972 (37 Fed. Reg. 20,344, September 29, 1972), to consideration of the aoolication for construction pemits, and. the recund from the Comission did not expand this jurisdiction.
The Licensing Board did not have the authority to order hearinos on an Operating License application. As we have detailed, that power solely resides in the Commission or in boards constituted under 10 CFR 2.105(e) for that soecial purpose. Nothing in 10 CFR 2.104(a) or any other regulation of the Commission gives boards constituted to consider apolications for construction oemits any inolied authority to order hearings on operating license applications that are received at different times and considered under different procedures.8 /
All precedent before this Conmission establishes that licensing boards constituted to consider construction permit apolications may only pass on these applications
- / The Board, at pp.14-16 of its Memorandum, attempts to equate Licensing Board's authority to substantively condition licenses on the basis of determinations made at construction permit hearings with a puroorted authority to require hearings on operatina license applications. However, as we have detailed, although the Boards may be the Commission's delegate to detemining issues presented to them, the Boards do not have the Commission's reserved power to cause hearings to be held in the public interest under 10 CFR 2.104(a).
In support of its argument that the power to condition oemits includes the power to provide for operating license hearings, the Board cites the anti-trust cases of Houston Lightino and Power Co., suora; Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-450, 6 NRC 887 TTD77); and Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-560,10 NRC (slip op.
September 6, 1979).
However, these cases do not order hearings to be held at the operating license stage of proceedings.
Further, section 105(c)(2) of the Atomic Energy Act, as amended, 42 USC 2135(c)(2), provides that anti-trust conditions may be imposed upon the consideration of applications for construction permits, and that the consideration of anti-trust arguments is particularly appropriate at that time when an applicant is determining whether to invest money in the construction of a nuclear facility.
See Houston Lighting & Power Co.
(South Texas Project Unit Nos.1 & 2), CLI-77-13, 5 NRC 1303,1310 (1977).
In support of its position the Board also cites Arkansas Power & Light Co., supra, dealing with the imposition of substantive environmental operating condition in a construction permit proceeding.
Again this does not deal with whether a construction permit licensing board may mandate an operating license hearing.
Further,10 CFR 2.104(b)(3)(iii) particularly delegates to the boards authority to determine if a " construction permit should be... appropriately conditioned to protect the environmental values."
18,25
$01 and may not order other hearings.
In Florida Licht & Power Co. (Turkey Point Nuclear Generating Units 3 A J), Commission, 4 AEC 9, 15 (1967), the NRC Staff appealed upon its contention thut--
. the Board should rat have ordered that a further hearing be held, any further hearings being the preroaative of the Commission and not within the authority of the atomic safety and licensing board.
In passing on this specific matter the Commission held--
In addressing ourselves to the parties' contentions, we should state at the outset our aareement with the position of the staff that the Commission has net delegated to atomic safety and licensing boards the authority to direct the holding of hearings following the issuance of a construction permit.
The Commission then renanded to the board for determination in the course of the construction permit proceedings the very issues the board had ordered for a subsequent hearing. The Conmission's action was taken in spite of its view that the issues probably did not present substantial safety concerns.
In Florida Power Corp. (Crystal River, Unit 3 Nuclear Generating Plant), suora, the Commission went beyond this and determined that it was not proper for a licensina board to even recommend hearings after the issuance of a construction permit.
It there ruled that the entitlement to a construction oermit must be decided on present Comnission regulations, and questions involving the need for an operating license hearing were to be left to such time as the grant of an operating license was beina considered. See also National Bureau of Standards, Commission, 2 AEC 323, 324 (1963), where in keeoing with the bifurcation of 1825
$02 authority in the consideration of construction oermit aoplications and operating license applications, the Commission indicated that hearing officers should decide all m'atters needed to be decided for the issuance of a construction permit in such proceedings but should not pass upon aporopriate procedures for the con-sideration of operating license applications.
10 CFR 52.104(a) does not delepate to licensing boards considering construction permit applications the authority to order hearings on operating license applications.
The power to order such a hearing absent an intervention petition rests solely with the Commission. No cause exists to commit the NRC Staff's limited resources to a hearing on a supposition that a yet to be submitted application for an operating license and the Staff review of that application will be insufficient.
II.
The Conclusions Of The Board Entitles CP&L To An Unconditioned License Under 10 CFR 50.35(a).
10 CFR 50.35(a) sets out conditions to be satisfied for the issuance of a construction pennit.b Where the information required by 10 CFR 50.35(a) has been supplied by an applicant for construction pennits, the licensing board must also determine whether there is " reasonable assurance" that there will be satisfactory resolution of outstanding safety auestions prior to operation of the facility
--9/ The Staff at pp.15-19 of its Brief in Suoport of Exceptions to Supolemental Initial Decision previously dealt with this matter, and here reiterates its position that no part of 10 CFR 50.34(a) or 50.35(a) gave any basis to impose the subject license condition, if one either looks to whether the plant can be constructed and operated without undue risk to the health and safety of the public or to the likelihood of the resolution of all outstanding safety questions before completion of construction.
1825 303 and whether there is " reasonable assurance" that the plant can be constructed and operated at its proposed location without undue risk to the health and safety of the public.
Gulf States Utilities Co. (River Bend Station, Units 1 ana 2), ALAB-444, 6 NRC 760, 777-778 (1977). See also Licensing Board's Memorandum of January 14, 1980, pp. 10-13, 17.
Here the Licensing Board has made this finding (7 NRC at 143-144, paragraph 197), which it reiterates at p.17 of that recent Memorandum.
Thus by the language of 10 CFR 50.35(a), the applicant may be issued a construction permit.
However, the Board says that it conditioned the permit because of " doubts about the adequacy of applicant's showing required under [10 CFR] E50.34(a)(6)."
(Memorandum of January 14,1980, at o.17).
Under this provision an applicant must submit a preliminary safety evaluation analysis, which includes:
A preliminary plan for the apolicant's organization, training of personnel, and conduct of operations.
No indication is given why or in what manner the " plan" submitted by the apoli-cant is inadequate.
Instead the Board indicates that doubt remains about the ability of the applicant to carry out these plans because of problems the apoli-cant has had in operating other nuclear facilities. This doubt is immaterial to issues relevant to the consideration of issuance of a construction permit in view of the rei terated findings in accordance with 10 CFR 50.35(a)(4) that there is reasonable assurance that all safety questions, including those involving applicanth organi-zation, training and conduct of operations, will be resolved before the completion of construction. Thus, under NRC regulations, the applicant may be issued an unconditioned construction permit, leaving for review at the op'erating licensing 1825 304
stage of proceedings whether these safety concerns, along with other safety concerns left cpen at the time of issuance of a construction permit, have been satisfied.
See Power Reactor Development Corp. v. International Union, suora; Gulf States Utilities Co., supra; Florida Power Co., suora; see also Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1) CLI-79_,
10 NRC (slip opinion, December 12,1979, pp.14-17).
As we have detailed, it is Commission policy incorporated into regulation to rely on Staff review to make sure all outstanding questions are answered upon consideration of operating license applications, absent issues put in controversy by those intervening in the proceeding or Commission order.
10 CFR 2.105(e);
Cincinnati Gas & Electric Co., supra; Virginia Electric Power Co., supra; Consolidated Edison Co. of New York, supra.
Resources should not be needlessly expended in ordering hearings now, that might not be required in the future.
See Florida Power Co., supra.
CONCLUSION A licensing board has no delegated authority under 10 CFR 2.104(a).
A licensing board considering a construction permit application lacks authority to make a finding under that regulation or any other reaulation that a hearing should be held on an operating license application.
Further, although the Licensing Board concluded that a hearing on an ooerating license should be held 1825
.505
in the public interest--it misapplied the standards in 10 CFR 50.34(a) and 50.35(a) in determining that the construction permit should be so conditioned.
Respectfully submitted, Edwin J.
is Assista Chief Hearing Counsel Dated at Bethesda, Maryland, this 23rd day of January, 1980.
1825 306
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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CAROLINA E0WER AND LIGHT COMPANY
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Docket Nos. 50-400
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50-401 (Shenron Harris Nuclear Power
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50-402 Plant, Units 1, 2, 3 and 4)
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.50-403 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC SUPPLEMENTAL MEMORANDUM IN SUPPORT OF EXCEPTION TO SUPPLEMENTAL INITIAL DECISION" in the above-captioned pro-ceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of January, 1980:
- Alan S. Rosenthal, Esq., Chairman
- Mr. Glenn 0. Bright Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555
- Dr. John H. Buck Dr. J. V. Leeds, Jr.
Atomic Safety and Licensing 10807 Atwell Drive Appeal Board Houston, Texas 77096 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Richard E. Jones, Esq Associate General Counsel
- Michael C. Farrar, Esq.
Carolina Power & Light Company Atomic Safety and Licensing 336 Fayetteville Street Appeal Board Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Thomas Erwin, Esq.
115 West Morgan Street
- Ivan W. Smith, Esq.
Raleigh, North Carolina 27602 Atomic Safety and Licensing Board Panel Wake County Public Library U.S. Nuclear Regulatory Commission 104 Fayetteville Street Washington, D. C. 20555 Raleigh, North Carolina 27601 e
j825 S07
George F. Trowbridge, Esq.
- Atomic Safety and Licensing Shaw, Pittman, Potts & Trowbridge Board Panel 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 M. David..Gordon
- Docketing and Service Section Associate Attorney General Office of the Secretary State of North Carolina U.S. Nuclear Regulatory Commission P.O. Box 629 Washington, D. C. 20555 Raleigh, North Carolina 27602
- Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Cor,imission Washington, D. C. 20555 Edwin J. Rei Assistant ief Hearina Counsel 1825 308