ML19260A707
| ML19260A707 | |
| Person / Time | |
|---|---|
| Site: | Rancho Seco |
| Issue date: | 10/24/1979 |
| From: | Brown H, Ellison C CALIFORNIA, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19260A701 | List: |
| References | |
| NUDOCS 7912030112 | |
| Download: ML19260A707 (5) | |
Text
d M
UNITED STATES OF AMERICA 77[i ny cg h-e NUCLEAR REGULATORY COMMISSION M
n " s 9,w '
c< 0 U
(A'
- \\J BEFORE THE ATOMIC SAFETY AND LICENSING EOEYd e,;(.
'QT IIl N c
In the Matter of:
)
)
SACRAMENTO MUNICIPAL UTILITIES DISTRICT
)
Docket No. 50-312
)
(Rancho Seco Nuclear Generating
)
S tation)
)
)
D j B)fggr_p 7,l'f,
I I
uf; y o '
2 MOTION OF THE CALIFORNIA ENERGY CO!'.'1ISSION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, FOR CERTIFICATION TO THE COM:iISSION The California Energy Commission moves this Board to reconsifer its October 9, 1979, ruling that 'he issue of energe-:y response may no. be considered in this proceeding.1/
In the event that the Board affirms its October 9 ruling, we respectfully urge the Board to certify this' matter to the C:mmis sion for clarification.
I.
Emergency Response shoulf Se Considered in This Proceeding.
The California Energy Commission notes that this Board has specifically found that emergency response issues "are within the scope of this proceeding."
(October 9 Order, p. 20.)
The sole question, therefore, is whether the Board acted correctly in adopting the evidentiary principle of the Douglas P:in: decision and in applying that principle so as to preclude 1.
In a separate submission filed today, the California Energy Commission addresses other issues relating to the 3:crd's October 9 Order.
1456 004.
7012030
/ /EI
consideration of the emergency response issue.
We respectfully submit that the Board erred in applying Douglas Point to this proceeding, and for 'the following reasons urge the Board to o
D D
90 g3,,
r i
i q
reconsider its reling:
g j [ b J J(
- q eu 4
a (1)
The Douglas Point precedent applies, if at all, to preclude consideration of ' generic" issues--i.e., issues applicable to the nuclear industry as a whole, to all reactors, or to all reactors of a specific type--only when a contention is, or is about to become, the subject of a general rulemaking 85.2/
While the NRC may conduct a proceeding.
S A.E.C.
at
" generic" rulecaking en emergency responne plans for all that proceeding $till not address the specific
- reactors, contention we raise in this case--whether the emergency planning procedures related to the Rancho Seco facility are adequate to protect the health and safety of the public affected
~
by this reactor.
That is a f actual issue which can only be decided in the :ontext of this adjudicatory proceeding.
Accordingly, since the Con =ission's rulemaking proceeding will not address the specific issues we raise, this issue is still properly before this Ecard.
(2)
The Couglas Point rationale does not properly apply to this unique proceeding.
This Board has been convened to ceterman=
- a. 2th:r tt: measures specified in the NRC's May 7, 1979, order are' adecuate to ensure safe operation of the Rancho Seco facility--a licensed and currently operating 2.
In Douglas Poin:
he " generic" issue concerned Table S-3 e nvi rc..ne n : c _ tactors and was identical to matters pending before the NR: in the Table S-3 rulemaking. ~
1456 005
nuclear power reactor.
Further, this case arises at a time of intense public and governmental concern over the safe operation of commercial power plants, particularly those designed by Ba?
wk and Wilcox.
In contrast, Douglas Point arose in an initial licensing case where there was no compelling need for prompt resolution of all issues.
Douglas Point is inapplicable for the.further reason that the NRC specifically sanctioned this special proceeding to allow full adjudication of relevant safety issues.
The NRC imcosed no " generic" limits on the issues to be considered, although it has had ample opportunity to do so.
We submit that this Board should not impose such limits through citation of precedents applicable only to sharply different circumstances and a categorically dif ferent type of proceeding.
(3)
The Douglas Point precedent is not mandatory.
While the Appeals Board in that case said that licensing boards generally should not accept issues which are the subject of rulemaking proceedings, the Appeals Soard did not state that a licensing board is barred frcm considering such issues.
The uniqueness of this proceeding and the legitimate public concern over the safety of the Rancho Seco f acility provide compelling reasons for this Board to exercise its discretion to hear this issue.
II.
The Board Should Ask the Commission to Clarifv the Board's Jurisdiction.
In the event that this Board is inclined to affirm its October 9 ruling, we respectfully request the Board to seek
~~
1456 006
t certification to the Commission of the question of the applicability of the Douglas Point precedent.
This is particularly important b teause this Board has specifically found emergency response issues to be within the scope of this proceeding.
(See October 9 Order, p.
20.)
- Indeed, thert would be needless d: lay, waste of resources, and the impress on of reg 21atory confusion for participants in this proceeding to litigate to conclusion major issues in this case and then be forced to start fresh with the emergency response issue af ter Appeal Board or Commission reversal.
The Ocn=issioners already have demonstrated their concern for the prcper scope of this proceeding, as indicated by their J u lv. 11 meetin~ rec.ardinc. manac.ement comoetehce issues.
The v
Commissioners in that meeting recognized the extraordinarv nature of this case and made clear their ' concern that the Board have bread.iurisdiction to consider all =a3or safetv-
~
related saues.
Giren the Commissioners' expressed concern f0: proper Scard jurisdiction, we submit that it would be appr:priate--indeed essential--for this Board to seek their clarification before barring hearings on the emergency respo:.se issue.S/
Accordingly, if this Board believes that the Douglas Point principle must be applied to this proceeding, we urge dne Board rom.otl. seek clarification of this imcortant 2.
We do not initially ask this Board to seek Appeal Soard clarification because it, just as this Board, cannot knew the Commissioners' intentiens.
If this Board believes that it can :niv certifv :h.is question to the Appeal Board, it shoulf do s: with the suggestion that the Appeal Board further certify the i.atter to the Commission.
See 10 C.F.R.
C 2.73 5 :d).
1456 007 o*"o TWM N p n ma
issue.
Cated:
October 24 1979.
Respectfully subr.ittef, CALIFORNIA ENERG'l CO O'ISSION
>>i 8%w CHRISTOPEER ELLISO:1 f'
/r p,l l
r e--
8 HERBERT H.
EROW.4 Attorneys fcr the California Energy Corr.ission k 1456 008
.