ML19257C477
| ML19257C477 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/16/1980 |
| From: | Coll N, Reis H FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8001290193 | |
| Download: ML19257C477 (25) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION S
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BEFORE THE ATOMIC SAFETY & LICENSING APPEAL BOARD MM,
^
In the Matter of:
)
)
FLORIDA POWER & LIGHT COMPANY
)
Docket No. 50-389
)
(St. Lucie Nucl' r Power Plant,
)
Unit No. 2)
)
s FPL'S RESPONSE TO MOTION CONCERNING CLASS 9 ACCIDENTS On December 12, 1979, Intervenors filed a motion relating to the further consideration of " Class 9" accidents in this proceeding.
Florida Power & Light Company (FPL) hereby files its response in opposition to the motion.-1/
The motion appears to be based upon the Intervenor's view of the obligations which the Nuclear Regulatory Commission imposed upon itself as a necessary consequence of the measures it directed to be taken in its memorandum and order of last September relating to floating nuclear plants (FNPs).-2/
There, in response to certification of the question by the Appeal Board, the Commission held that "the Licensing Board should be allowed to consider the environmental consequences 1/
This response is filed in accordance with the schedule established by the Appeal Board during the course of a hearing it was
- 8. hen conducting.
Tr. 877-878, December 14, 1979.
2/
Offshore Power Systcmu (Fluating Nuclear Power P.lants);
Docket No. STN 50-437, NRC September 14, 1979.
The memorandum and order is attached as an " Addendum" to the motion and we cite it here as "__ a."
1840 026 80012 90 ) C{ h
. of Class 9 accidents at the FNPs which Offshore proposes to manufacture."
(6a)
The Commission went on to state that:
Our grant of review in this proceeding was limited to the narrow question certified to us by the Appeal Board and it is neither necessary nor appropriate for us to employ this particular adjudicatory proceeding to resolve the generic issue of considera-tion of Class 9 accidents at land-based reactors.
Such a generic action is more properly and effectively done through rule-making proceedings in which all interested persons may participate.
Therefore, we are not today expressing any views on the question of environmental consideration of Class 9 accidents at land-based reactors which, as the Board noted, present risks different in kind and perhaps in magnitude from those risks presented by FNP.
See 8 NRC at 218-19.
However, we are concerned about this question and intend to complete the rulemaking begun by the Annex and to re-examine Commission policy in this area.
To aid in that re-examination we ask our staff to:
1.
Provide us with its recommerdations on how the interim guidance of the Annex might be modified, on an interim basis and until the rulemaking on this subject is completed, to reflect developments since 1971 and to accord more fully with current staff policy in this area; and 2.
In the interim, pending completion of the rulemaking on this subject, bring to our attention, any individual cases in which it believes the environmental ccnsequences of Class 9 accidents should be considered.
(Ca; footnote omitted)
The instant motion is based upon the following theory:
1840 027 4
2.
Since the Commission has now abandoned any generic prohibition against consideration of class 9 accidents, it must now either give, or provide a reasoned explanation for its refusal to give, such consideration in each individual case.
It cannot delegate unreviewable discretion to the staff.
(Motion, p.
3; emphasis supplied)
Proceeding from this interpretation, the motion asks that this Board direct the NRC Staff to file a proposed supple-ment to the St. Lucie 2 Final Environmental Statement:
which eithe, (a) gives consideration to the environ-mental consequences of possible class 9 accidents at the proposed St. Lucie Unit No. 2 and recommends the weight to be assigned the resulting risk to the human environment in the Commission's determination of the environmental impact of a decision to license construction of the proposed plant at St. Lucie on Hutchinson Island; or (b) fully justifies why such considera-tion should not be given in this particular Case (Motion, pp. 1-2)
The motion also requests that the Appeal Board direct that a hearing be held, preceded by prehearing procedures, "for a determination of the adequacy of the FES as suppl,mented."
Consequently the request apparently is that such a hearing be conducted even if the FES Supplement merely justifies why consideration should not be given to Class 9 accidents.
Two possible alternatives to the relief described above are suggested in the motion.
One would be to stay 1840 028
. " completion of these proceedings until the Commission has received and acted upon" the interim modifications referred to in the FNP Memorandum and Orde_ (Motion, pp. 2, 4).
The s'cond would be for this Board to certify to the Commission questions relating to the standards to be applied by the Staff in determining the individual cases in which Class 9 accidents should be considered as well as the procedures fcr the review of such Staff determinations and how the FNP direction relating to specific proceedings "is to be imple-mented with respect to pending proceedings."
(Motion, p. 2; see also p.
4)
FPL submits that the motion should be denied in its entirety.
We demonstrate in greater detail below that the relief primarily requested, as well as the alternatives, are neither legally necessary consequences nor appropriate extensions of the action taken by the Commission in the FNP proceeding.
In addition, the Class 9 issue has been finally disposed of in this construction permit proceeding and should not again be addressed in this proceeding.
If the Intervenors believe the issue should be considered again with respect to St. Lucie Unit No.
2, they may invoke a different procederal remedy.
1840 029 4
1.
The history and status of this proceeding.
The construction permit for St. Lucie Unit No. 2 was issued on May 2, 1977, in consequence of two decisions of the Commis-sion.
One was a partial initial decision of the Licensing Board on environmental and site suitability matters which authorized the issuance of a limited work authorization to FPL.
1 NRC 101 (February 28, 1975), as supplemented 1 NRC 463 (April 25, 1975).
This was affirmed in part and reversed (with respect to the consideration of alternative sites) in part by the Appeal Board in ALAB-335, 3 NRC 830 (June 29, 1976); and the Intervenors appealed the decision to the United States Court of Appeals for the District of Columbia Circuit (No. 76-1709).~3/
On April 19, 1977, the Licensing Board, after having heard the remanded alternative sites issue and the remaining undecided construction permit issues, released its initial decision authorizing the issuance of the permit.
5 NRC 1038.~4/That decision was affirmed by the Appeal ocard on October 7, 1977.
ALAB-435, 6 NRC 541.
Intervenors sought discretionary review by the Commission under 10 CFR S 2.786 (b),
3/
Because of the outstanding alternative sites issue, the limited construction activities authorized by the partial initial decision were stayed by order of the Court of Appeals on October 21, 1976.
In the same order the Court. directed that the appeal in No. 76-1709 be held in abeyance.
4/
Thereafter, on May 12, 1977, the Court of Appeals dis-solved the stay of construction it had issued on October 21, 1976, and directed that the appeal in No. 76-1709 no longer be held in abeyance.
jQfQ Q}Q but their petition was denied when the time for review by the Commission expired on December 25, 1977.
The Intervenors then filed a second appeal in the Court of Appeals (No. 78-1149) which consolidated both appeals and affirmed them in one decision on December 26, 1978.
589 F.2d 1115.
The Court of Appeals denied a petition for rehearing 5/
on January 15, 1979.
On October 1, 1979, Intervenors' petition for a writ of certiorari was denied by the United States Supreme Court, 100 S.Ct. 55, and a petition for rehearing was denied on November 26, 1979.
48 U.S.L.W. 3357 (Novem-ber 27, 1979).
The " Class 9" issue was fully '.itigated and finally decided in the course of the proceedings described above.
On June 5, 1974, while prehearing procedures were being conducted by the Licensing Board, the Intervenors filed a
" proposed refined statement of matters in controversy,"
contending, among other things, that FPL had failed "to consider C1. ass 9 accidents as part of their design basis."
In its comments on the refined statement, FPL objected to the contention on the ground, among others, that the Com-mission's regulations did not require plants to be designed to withstand the consequences of a Class 9 accident, and S/
The judgment and accompanying memorandum of the Court of Appeals are reproduced in the Appendix hereto, together with the order denying rehearing.
Pursuant to Local Rule 13(c), the memorandum was not included in the reported opinions of the Court and is not to be cited as a precedent under Rule 8(b).
"lloweve r, counsel may refer to such orders, and memoranda, for such purposes as application of doctrines of res judicata, collateral estoppel, and law of the case, which turn on the binding effect of the judgment, and not on its cuality as precedent."
Local Rule 8 (f).
}
that no attempt had been made to meet the "Shorchqm test" of "a reasonable possibility of the occurrence of a parti-cular type of accident generically regarded as being in 6/
Class 9.
Thereafter, on June 25, 1974, the Commission Staff and the Intervenors filed a " Stipulation and Joint Motion" con-taining a joint statement of the issues those parties thought to be appropriate contentions in the proceeding.
The docu-ment also described issues the Intervenors wished considered, but which the Staff thought should not be litigated in the proceeding.
Therefore it included (p. 12) an expression of the Staff's view that the Class 9 issue should not be litigated because there had been "no showing of reasonable possibility" of a Class 9 accident at St. Lucie 2, as required by the Shoreham decision.
FPL concurred in that view,~7/ but Inter-venors replied that:
6/
" Applicant's Comments on Intervenors' Proposed Refined Statement of Matters in Controversy," June 18, 1974, p.
2.
The Shoreham test referred to was that set forth in Long Island Lighting Co.
(Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 833-36 (1973), affirmed by unpublished order sub nom.
Lloyd Harbor Study Group v.
Atomic Energy Commission (D.C. Cir., No. 73-2266, November ll, 1976), vacated on other grounds sub nom.
Long Island Lighting Co. v. Lloyd Harbor Study Group, 435 U.S. 964 (1978).
7/
" Response of Applicant to Stipulation and Joint Motion,"
June 28, 1974, p.
15.
1840 032
. having read the Shoreham decision
[they] respectfully teke exception to that holding in that the argument supporting the decision does not logically uphold the result.8/
Nevertheless, in its "Prehearing Conference Order #3," dated July 12, 1974, the Licensing Board ruled as follows:
As to statement on Contention 1.7 (page 12, Joint Motion) Board agrees that there has isen no showing of a reasonable pos-sibility of class 9 accident at St. Lucie and therefore an issue relating to a class 9 accident is denied.
8 AEC 117, 124-125.
The Intervenors excepted to this ruling and briefed the exception,-9/ but this Board affinned.
ALAB-335, 3 NRC 830, 841 (1976).
The Class 9 issue was central to Intervenors' case when the _- sought judicial review.~~10/ The issue was also fully 8/
"Intervenors Fesponse to Applicants Response to Stipula-tion and Joint Motion," dated July 5,
- 1974, p.
7.
9/
"Intervenors Exceptions to the ASLB Partial Initial Deci-sion (Dated February 28, 1975) as Supplemented," May 2,
- 1975, p.
1; "Intervenors Briefs on Exceptions 2-45 and Motion for Additional Time to Brief Exceptions," July 3, 1975, pp.
1-2.
10/
See " Petitioners Brief on Partial Initial Decision" filed in D.C.
Cir. No. 76-1709, February 15, 1978, pp.
3, 14-19; " Petitioners Reply Brief to Respondents, U.
S.
Nuclear Regulatory Commission and United States of America,"
July 24, 1978, pp.
2-5.
1840 033 addressed in the Government's Brief. ~~11/
Pursuant to Rule 28(i) of the Federal Rules of Civil Procedure, FPL's Brief (p. 18) adopted those portions of the Government's Brief.
Each of the briefs specified that the Class 9 issue was a
" question presented" or one of the " issues presented for review."~-12/The memorandum of the Court of Appeals affirm-ing the decision expressly deals with and disposes of the issue in the first and third paragraphs.
See Appendix hereto.
The petition for rehearing filed in the Court of Appeals and the petition for a writ of certiorari were devoted solely to the Class 9 issue, as was the petition for rehearing filed in the Supreme Court. ~-13/
When it issued ALAB-435, affirming the initial decision, the Appeal Board sua sponte asserted and retained jurisdiction over one issue, steam generator tube integrity.
6 NRC at 544-546.
It later amended ALAB-435 to cover matters relating 14/
to grid stability,~~
and on April 11, 1978, the Commission 11/
See Brief for " Respondents United States Nuclear Regula-tory Commission and the United States of America" in Nos.
76-1709 and 78-1149, pp.
1, 3-4, 7-9.
12/
See Intervenors "Brief on Partial Initial Decision,"
p.
2; Government Brief, p.
1; and FPL's Brief, p.
1.
13/
See Petition for Rehearing and Suggestion for Rehearing En Banc filed in D.C. Cir. Nos. 76-1709 and 78-1149 on Janu-ary 10, 1979; Petition for Writ of Certiorari and Petition for Rehearing filed in Hodder et al. v. United States Nuclear Regulatory Commission et al., Supreme Court of the United
~
States, October Term, 1978, No. 78-1652.
14/
See Appeal Board order issued in this proceeding on October 28, 1977.
1840 034 itself directed that the records be reopened to consider issues relating to radon releases in all " cases pending before Appeals Boards Philadelphia Electric Company et al.,
ALAB-480, 7 NRC 796, 799, 802 n.
4 (1978).
However in ALAB-537, 9 NRC 407, 417 (1979), the Appeal Board expressly terminated its jurisdiction over the steam generator tube issue, leaving open to the exercise of Appeal Board jurisdiction only the grid stability and radon issues.
2.
Final disposition of the Class 9 issue.
From the foregoing, it is clear that the Class 9 issue in this pro-ceeding has been fully litigated and finally decided -- both within the Commission and in the ccurts.
Once a decision has become final because the time for Commission review has expired, both the licensing boards and the Appeal Board lone jurisdiction over the proceeding.
10 CFR S 2.717 (a) ; Houston Lighting and Power Company et al.
(South Texas Project Unit Nos. 1 and 2), ALAB-381, 5 NRC 582, 590-591 (1977);
Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), ALAB-501, 8 NRC 381 (1978); Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530, 9 NRC 261 (1979).
As the Appeal Board stated in the South Texas proceeding, "the total regulatory scheme does not contemplate the resurree-tion of a terminated construction permit proceeding [even] in the event of a later material change in circumstances."
5 NRC 1840 035 at 591.
It went on to state:
To the contrary, even assuming there to have been supervening developments bring-ing into legitimate question either the warrant for the construction permit or the need for its modification, this path would appear to be totally foreclosed.
Under our regulatory scheme, if the person were not prepared to abide the arrival of the operating license stage, his remedy would lie in seeking the issuance of an order -- not by a licensing board but by the appropriate official on the NRC Staff -- which would tri rer a show cause proceeding (i.e.,
one or the types of pro-ccedings expressly provided for in the Rules of Practice).
5 NRC at 593; footnote omitted.
Here the Class 9 issue was decided by the Licensing and Appeal Boards; the Commission permitted the time for review to pass; and judicial review of the Class 9 issue was conducted pursuant to 28 U.S.C.
S 2342, which applies only to " final orders."
The South Texas, WPPSS and Marble Hill decisions demonstrate that if jurisdiction over the grid stability and radon issues had not been retained, the Appeal Board would have had no authority whatsoever to reopen the issue.
Other procedent makes it clear that the retention of authority over those issues does not change the result.
Directly in point is Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694 (1978).
There a party sought to reopen the record of a construction permit proceeding on the issue of financial qualifications a' ter 1840 036
" finality [had) attached to the resolution of the question in this proceeding
. " by virtue of af fi rmance by the Com-mission and by the Court of Appeals for the First Circuit.
The Appeal Board still had before it the " entirely discrete issue" of alternative sites pursuant to an earlier Commission directive.
The Board held that the pendency of the latter unrelated issue did not " preserve our jurisdiction over other, questions including the issue earlier resolved.
Shortly thereafter, in Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-551, 9 NRC 704 (1979), a similar issue was raised in the context of an operating license proceeding in which all three discrete issues had been finally decided.
In but that proceeding, the Staff had informed the Appeal Board of the existence of a "significant new development," as it was
" current required to do in all pending cases, concerning the practice of relying on ncn-safety grade equipment to mitigate the severity of anticipated operational occurrences."
9 NRC at 706.
With respect to the question whether it had juris-diction to consider the issce, the Appeal Board held that the authority vested in adjudicatory boards to raisc new issues must be limited by the principle of finalitv wrich governs NRC proceedings to the same extent as any other proceedings, and once review of an issue has been terminated, the Appeal Board loses all jurisdiction over it.
1840 037 The Board also held that its auf arity to consider the new non-safety grade eqt.pment issue turned upon "the exis-tence of a 'r..aeo able nu.us' between that issue and one of the issues over which we have retained jurisdiction."
9 NRC at 709.
However, the issue involving Class 9 accidents is not a new issue in the proceeding.
Rather, review of that issue has been completed.
This Board has, therefore, lost jurisdiction over it.
The fact that the Board has retained authority over the grid stability and raden issues does not modify this result.
The motion totally ignores the line of authority just discussed.
It argues that the Appeal Board should exercise jurisdiction over the Class 9 issue simply "[b]ecause the order was entered prior to completion of these proceedings citing Philadelphia Electric Company et al. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-480, 7 NRC 796 (1978) as authority.
(Motion, pp. 2-3)
There the Appeal Board held that the Comission " wishes the radon question to be reexamined in every pending pioceeding 7 NRC at
- 802, n.
4.
However, this is but an example of the exercise by the Commission of authority similar to that of the Appeal Board, "to raise sua sponte issues which were neither pre-sented to nor considered by the licensing board."
ALAB-551 supra, 9 NRC at 707.
We are not presented here with such an issue, but rather with one which has been finally decided.
I840 038 3.
The FNP decision.
It il clear that the Commission's FDP decision does not " order" or even authorize the Appeal Board to reopen the Class 9 issue in this proceeding.
Prior to the issuance of the FNP decision, the Commission's policy, as established in the proposed " Annex"--15/ to its environmental regulations, was that Class 9 accidents need not be considered in individual licensing proceedings.
The policy has been repeatedly upheld both by the Appeal Board and the courts.
See Offshore Power Systems (Floating Nuclear Power Plants),
ALAB-489, 8 NRC 194, 209-210 (1978), and cases there cited.
The impact of that decision, as confirmed by tne Commission, was simply to provide for consideration of such accidents "in licensing proceedings concerning offshore plants.
Public Service Company of Oklahoma et al.
(Black Fox Station, Units 1 and 2), ALAB-573, slip og. pp. 30-31 (December 7, 1979).--16/However, the Commission's FNP decision clearly states that it is addressed only to offshore reactors.
"The existing policy on Class 9 accidents was not set aside for land-based plants.
(supra, at p.
31)
Nor were Licensing or Appeal Boards even authorized to conduct Class 9 proceed-ings with respect to land-based plants.
To the contrary, as the Appeal Board held in Black Fox, "the Commission has 15/
36 Fed. Reg. 22851-52 (December 1, 1979).
16/
See errata filed in the Black Fox dockets on December 17,.
1979.
1840 0350 reserved to itself the right to decide whether such matters are to be considered in any given case until it adopts a new general policy."-'17/
Ibid.
Intervenors, nevertheless, assert that the Commission has " abandoned any generic prohibition against consideratica of class 9 accidents
." and note that it has directed the Staff to bring to its attention individual cases in which the Staff believes Class 9 accidents should be con-sidered.
They go on
.o argue that the Commission "must now either give, or providt a reasoned explanat.on for its refusal i
to give, such considerat on in each individual case.
It cannot delegate unreviewable discretion to the Staff."
(Motion, pp. 2-3)
Intervenors' assertion that the Commission has abandoned any generic prohibition against consideration of Class 9 accidents is plainly erroneous.
As the Appeal Board stated in Black Fox, the Class 9 policy "was not set aside" except with respect to offshore plants.
In light of the fact that the Commission is " rethinking the policy," it is entirely appro-priate for the Commission to direct that it be advised of the cases, if any, that the Staff believes should now be excepted 17/
The fact that the Commission has announced its intention to hold rulemaking proceedings on the Class 9 issue is another reason the issue should not be considered in a specific adjudication.
Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79, 84 (1974).
1840.040 from the policy.
It would be an absurdity to limit the Staff's discretion in this respect.
Indeed, any Commission instruction to the Otaff would amount to no more than the adoption of some kind of interim policy, an action the Com-mission has not yet taken.-18/
In connection with the Commission's FNP and the Black Fox decisions,.we note that the Appeal Board directed the Staff to make a recommendation to the Commission as to whether the Class 9 issue should be considered in that proceeding.
We submit that a similar direction would be inappropriate here.
The Board issued the direction in Black Fox because:
The proceeding before the Licensing Board is now half completed.
Mani-fest:
if that Board is to reexamine the rumifications of Class 9 events, the time to instruct it to do so is now, not after the record closes and its decision issued.
Slip og at p.
32.
No such consideration exists here.
The Class 9 issue has been finally ruled upon and the decision has already issued.
4.
Available relief.
All of the forms of relief suggested by the Intervenors turn upon the argument that some kind of consideration of Class 9 accidents is now required in this proceeding because of the FNP decision.
We submit that we have demonstrated that this is incorrect.
For that reason, 18/
The NRC Staff has provided the Commission with an initial.
response to the Commission's request for " recommendations on how the interim guidance of the Annex might be modified on an interim basis (8a)
See " Class 9 Accideng O A A Md1 Considerations," SECY-79-594, October 31, 1979.
IU4U V7 '
neither the primary relief requested in the motion nor any of the suggested alternatives should be granted.
The motion should therefore be denied.
In accordance with this Board's request, we also address the question "whether there is any other avenue of relief open within the Commission."
(Tr. 868)
We believe the answer to this question has been supplied in the South Texas and Seabrook proceedings.
Intervenors are free under 10 CFR S 2.206 to request the Director of Nuclear Reactor Regulation to institute a show cause proceeding under 10 CFR S 2.202 to revoke or suspend the constructian permit.
ALAB-381, 5 NRC at 588; ALAB-513, 8 NRC at 696.
By making this suggestion we do not admit or suggest that the merits of such a petition would warrant its grant.
As did the Appeal Board in Seabrook, we merely point out that the Intervenors are "now in the wrong forum."
Respectfully submitted,
/
Harold F.
Reis Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, DC 20036 Telephone:
(202) 862-8400 Norman A.
Coll Steel, Hector & Davis 1400 Southeast First National Bank Building Miami, FL 33131 Telephone:
(305) 577-2800 Attorneys for Florida Power &
Dated:
January 16, 1980
0 APPENDIX 1840 043
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FOR THE OLSTRICT OF COL.UMOI A CIRCUlT No. 76-1709 September Term,108 Martin liarold llodder, et al.,
Petitioners
' al 00 "'N['h g t.4 @ W-U.S. ::uclear Regulatory Co :nission g,
and United States of knerica, Respondents gg 151979 GEORGg A. FISHER Florida Po:cer & Light Cc=pany.
p Intervenors And Consolidated Case 1:o. 78-1149 BEFORE: McCowan and Uilkey, Circuit Judges; Flannery*, Judge, United States District C^urt for the District of Columbia O'R D E R Upon consideration of petitioners' motion for leave to file a petition for rehearing and/or sugr,estion for rehearing en banc, time having expired, no oppositica having been filed thereto, and it appearing that petitioners' petition for rehearing and/or suggestion for rehtarint, en_ banc is lodged with the Clerk's Office, it is ORDERED,' by the Court, that the notion of petitioners l' odder, et al. for leave is granted and the Clerk is directed to file petitieners' lodr,ed petition and/or suggestion and to enter same on the dochet.
Per Curian FOR TliE COURT:
$ D Cf CEORCEAh/ISilER Clerk
- sitting,by designation pursuant to Title 28 U.S.C.
S 292(a).
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[NO.
76-1709 Martin Harold Hodder, et al., Fetitioners v.
United Stats Court of Ap,ccb c
U.S. Nuclear Regulatcry Commissien fcr t e Cht:ict cf Cod.3 Cim.it and Cnited S tates of Anarica, Respondents Florida Pouer & Light Cenpany, Intervenor M DEC 2 6 l978 78-1149 GEORGE A. FISHER cLtna Martin Harold Hodder, et al., Petitioners v.
U.S. Nuclear Replatory Commission and United States.of Acerica, Respondents Florida 5'o. er and Light Co., Intervenor PETITIONS FOR REVIEC 0F ORDERS OF THE FUCLEAR REGULATORY CO'O!ISSION Eefore: McGd'.?AN and WILREY, Circuit Judges, and FLANNERY,1 United States District Judge for the District of Columbia JUDGHENT These causes came-on to be heard on petitions for-review of orders of the Nuclear Regulatory Cor.ission and were argued by counsel. On consideration of the foregoing, it is ORDERED AND ADJUDCED by this Court, that the orders of the Nuclear Regulatory Cocaission under revicu herein are hereby af firned, for the reasons set forth in the attached memorandum.
Per Curiam For the Court
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,... m.. v. g George (i'. Fisher Clerk Billa cf cent.c r".t t fil d ri^. n 14 days after ently of,, R ;_:.t, T.'
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upon co.icnn to (12.0 n '. lc c.? ccsts out of time.
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- Sitting by designation pursuant to 28 U.S.C. 6292(a).
ME"ORANDU.9 Petitioners seek review of two decisio'ns of the Nuclear Regulatory Commission authorizing intervenor Florida Power and Light Company to construct an 850 megawatt nuclear power reactor at Hutchinson Island, Florida.
In No. 76-1709, petitioners challenge an NRC Atomic Safety and Licensing Appeal Board deci-sion af firming a decision of the Atomic Safety and Licensing Board permitting limited construction work at the site over petitioners' objections that population density and distribu-and tion were not in accordance with the NRC's own regulations, that the NRC's f ailure to examine the environmental ef f ects of major nuclear accidents, constituted a violation of the National
~
Environmental Policy Act of 1969, 42 U.S.C. S 4321, et sea. (1976)
In No. 78-1149, challenge is brought to an Appeal Board decision that the NRC's examination and consideration of alternative sites for the proposed project complied with NEPA.
Petitioneys' claim on the regulations issue in that Hutch-incon Is_ land itself should be considered a " population center" within the meaning of 10 C.F.R. part 100.
We disagree.
The no-tion of a population " center" implies some centralized grouping or concentration of residents, not the type of dispersed populace is present on Hutchinson Island.
See New Encland Coalition as on Nuclear Pollution v. United States Nuclear Regulatory Commis-sion, Mos. 77-1219, et al., slip op. at 7 (1st Cir., August 22, 1978).
1840 046
. Petitioners' claim on the accidents issue has been fore-closed by previous decisions in this court.
It is well settled because of the extremo improbability of their occurrence,
- that, the NRC need not consider the environmental effects of so-called Carolina Environmental Study Grono v_._
" Class 9" accidents.
United States, 510 F.2d 796, 798-800 (D.C. Cir. 1975).
It is that Carolina was decided prior to the publication in final true draft of the Reactor Safety Study, WASH-1400 (1975), that found a probability of Class 9 accidents significantly greater than had'bcon indicated by the previous study, UASH-740 (1957).
however, has been reaffirmed by decisions of this
- Carolina, subsec uent to the ' publication of the 1975 study.
Lloyd court Harbor Study Grouc, Inc.
- v. N RC, No. 73-2266 (D.C. Cir., Nov. 29, 1978);.Aeschliman v. URC, 547 F.2d 622, 632 n.21 (D.C. Cir. 1976),
rev'd on other crounds sub nom. Verrc.ont Yankee Nuclear Power Corn.
- v. NRDC, 435 U.S. 519 (1973).
These decisions accord with the reasoned and consistent view of the NRC.
Long Island Lighting Co.
(Shoreham Nuclear Power Station), ALAB-156, 5 AEC 831 (1973).
On remand from a prev 2 as decision of the Appeal Board, ALAB-355, 3 NRC 8 30 (June 20, 1976), the NRC's staff conducted an investigation of six actual alternative sites, including Hutchinson Island.
The Appeal Board concluded that this analysis citos.
gave adequate consideration to possible alternative Florida Licht and Power Co.
(St. Lucie Nuclear Power Project, Unit No. 2), 5 NRC 1033, 1050 (1977).
We affirm this conclusion, 1840 047
. finding it supported by substantial evidence'in the record taken as a whole.
See Universal Camera Corp. v. N LPJ3, 340 U.S. 474 (1951).
1840 048
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY & LICENSING APPEAL BOARD In the Matter of:
)
)
FLCRIDA POWER & LIGHT COMPANY
)
Dock':t No. 50-389
)
(St. Lucie Nuclear Power Plant,
)
Unit No. 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of "FPL's Response to Motion Concerning Class 9 Accidents," captioned in the above matter, together with the Appendix thereto, were served on the following by deposit in the United States mail, first class, properly stamped and addressed, on the date shown below:
Mr.
C.
R.
Stephens, Supervisor Richard S.
Salzman, Esq.
Docketing and Service Section Atomic Safety & Licensing Office of the Secretary Appeal Board of the Commission Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Alan S.
Rosenthal, Esq.
Michael C.
Farrar, Esq.
Chairman Chairman Atomic Safety & Licensing Atomic Safety & Licensing Appeal Panel Appeal Board Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Edward Luton, Esq.
Dr. W.
Reed Johnson Chairman Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Board Panel Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 1840 049
. Michael Glaser, Esq.
Terence J.
Anderson, Esq.
Alternate Chairman University of Miami Atomic Safety & Licensing Board School of Law 1150 17th Street, NW Coral Gables, FL 33134 Washington, DC 20036 William D.
Paton, Esq.
Dr. Marvin M. Mann Counsel for NRC Regulatory Technical Advisor Staff Atomic Safety & Licensing Board Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 William J. Olmstead, Esq.
Dr. David L.
Hetrick Nuclear Regulatory Commission Professor of Nuclear Engineering Washington, DC 20555 University of Arizona Tucson, AZ 85721 Local Public Document Roon Indian River Junior College Dr. Frank F.
Hooper Library Chairman 3209 Virginia Avenue Resource Ecology Program Ft. Pierce, FL 33450 School of Natural Resources University of Michigan Norman A.
Coll, Esq.
Ann Arbor, MI 48104 Steel, Hector & Davis 1400 Southeast First National Martin Harold Hodder, Esq.
Bank Building 1130 NE 86 Street Miami, FL 33131 Miami, FL 33138
~
,C Harold F.
Reis Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, NW Washington, DC 20036 (202) 862-8400 January 16, 1980 1840 050