ML19269C678
| ML19269C678 | |
| Person / Time | |
|---|---|
| Site: | Trojan File:Portland General Electric icon.png |
| Issue date: | 01/19/1979 |
| From: | Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7902120069 | |
| Download: ML19269C678 (17) | |
Text
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01/19/79 g pry _
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
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4s In the Matter of
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PORTLAND GENERAL ELECTRIC COMPANY, ET AL. )
Docket No. 50-344
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(Control Building) g g,
(Trojan Nuclear Plant)
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NRC STAFF'S ANSWER OPPOSING REQUEST FOR STAY
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PENDING APPEAL OF THE COALITION FOR SAFE POWER d
I.
INTIODUCTION On December 21, 1978, the Atomic Safety and Licensing Board (Licensing Board) in the captioned proceeding issued a Partial Initial Decision (PID) authori:-
ing interim operation of the as-built Trojan facility, with conditions, prior to the approval and implementation of modifications to correct design defi-ciencies affecting the seismic capability of shear walls in the facility's Control Building.1! On January 4, 1979, Intervenor Coalition for Safe Power (Intervenor) filed a request for a stay of the PID pending appeal pursuant to 10 CFR 62.788.2/ The NRC Staff's (Staff) response opposing Intervenor's re-quest for a stay is set forth below.
1! The Trojan Control Building proceeding was initiated by an Order for Modification of License issued by the Director of Nuclear Reactor Regu-lation on May 26,1978 (May 26 Order).
The procedural history of this proceeding is set forth at length in the PID at pp.1-7 and will not be repeated here.
2_/ Intervenor's request for a stay consists of a 9 page petition for stay with a 4-page attachment (Stay Petition) and a 16 page memorandum in cupport of a stay (Stay Memo), These filings which thus total 29 pages violate 10 CFR 82.788(b) which requires that an application for a stay not exceed 10 pages exclusive of affidavits. By separai.e inGtisn filed on January 15, 1979, the NRC Staff requested that latervener's requese for stay be stricken for failure to comply with Section 2.788 or, alternatively, that the Staff be permitted to file a response exceeding the page limitations of 10 CFR S2.788(d).
By Order issued on January 18, 1979, the Appeal Board denied the Staff's motion to strike Intervenor's entire request for stay but granted the Staff's alternative motion for leave to file this response in excess of 10 pages.
In an effort to limit the length of this response, the Staff has not included an index or an alphabetical list of authorities cited.
79021200(o9 6
II.
NRC STAFF'S RESPONSE A.
Requirements For a Stay Pending Appeal Under NRC practice, the criteria for a stay pending appeal have long been those set forth in Virginia Petroleum Jobbers Ass'n. v. FPC, 259 F.2d 921 (D.C. Cir. 1958).
These criteria, now in..rporated in 10 CFR 82.788, require that the moving party:
~
(1) make a strong showing that it is likely to prevail on the merits;3/
(2) show that it will be irreparably injured unless a stay is granted; (3) show that a stay will not harm the other parties; and (4) show that the public interest lies with the grant of a stay.
No single factor is dispositive and the strength or weakness of the showing.
on one factor determines what is required on the others. Public Service Co.
of New Hampshire et al. (Seabrook Station, Units l'62), ALAB-338, 4 NRC 10 (1976). Nevertheless, the existence of irreparable injury absent a stay is most crucial and a stay normally will not be granted without a showing of irreparable injury.
Public Service Co. of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1&2), ALAB-437, 6 NRC 630, 632 (1977).
3/ The first factor requires the movant to show more than the possibility of legal error by the Licensing Board.
Philadelnhia Electric Co. (Peach Bottom Atomic Power Station, Units 2&3), ALAB-221, 8 AEC 95 (1974).
Rather, there must be a strong probability that no ground will remain upon which the Licensing Board's action could be based.
Toledo Edison Co.
(Davis-Besse Nucl ear Power Station, Units 1, 263), ALAB-385, 5 NRC 621 (1977).
Intervenor's assertion that a mathematical probability of succcas on the merits need not be shown igueres the fact that even where the other three factors stronely favor a stay, a showing of a substantial case on the merits is necessary. Washincton Metropolitan Area Transit Com'n. v.
Holiday Tours, 559 F.2d 841, 843 (D.C. Cir. 1977).
For a stay, a showing stronger than a prima facie case demonstrating reasonable probability of success on the merits appears to be necessary.
Stop H-3 Ass'n. v. Volpe, 353 F.Supp. 14, 17-18 (D. Hawaii 1972) (and cases cited therein).
- i
.3-B.
Likelihood of Success On the Merits of the Appeal Intervenor's assertion of likelihood of success on the merits of its appeal rests on two basic claims of error on the part of the Licensing Board.
- First, the Board allegedly erred in authorizing interim operation in the face of "un-resolved safety questions" and in the absence of an adequate record to support the conclusion that interim operation would be safe with these unresolved safety matters. / Second, the Board assertedly erred in authorizing interim 4
operation without considering "need for power" or requiring the preparation of an environmental impact statement (EIS) which supposedly is required by the National Environmental Policy Act (NEPA).
~1.
A Substantial Record Was Compiled Demonstrating That There Are No Unresolved Safety Questions That Would Preclude Safe Inerim Operation Intervenor does not question, in its request for a stay, the basic determi-nation within the Licensing Board's charge in t.his proceeding - that operation of the facility, in light of the Control Building shear wall design deficiencies and the effects that those deficiencies would have or. the Control Building complex's seismic capability and on the seismic qualification of safety-related equipment in the complex, will not endanger the public health and safety in the interim period until the design deficiencies are substantially corrected.
Rather, Intervenor claims that other matters, such as past problems with DBA sequencers, / fire protection,6/ nonconformance of the Licensee's ECCS model 5
with the regulations,1 the original seismic qualification of safety-related 4/ Stay Petition, pp.2, 3, 5, 6; Stay Memo., pp.9-14.
=
rid! Stay Petition, p.2.
-6/
Id. at p.3; Stay Memo, p.10.
--7/ Stay Petition, p.3; Stay Memo., pp.9, 13-14.
equipment at the operating license stage,-/ and the existence of unspecified 8
generic problems,0! all preclude the safe interim operation of Trojan and that the Board's authorizatien of interim operation is based on a record which, in Intervenor's view, is essentially devoid of a consideration of these matters.
Although a consideration of these matters is outside the scope of the instant proceeding 10/ and, in the Staff's view, beyond the Licensing. Board's juris-diction,11/ the Board nevertheless required the presentation of a substar.tial amount of evidence and the creation of an extensive record on these catters
--8/ Stay Petition, p.5; Stay Memo., pp.10, 13.
--9/ Stay Memo., p.ll.
---10/ The matter to be determined in this first phase of this proceeding was whether interim operation of the facility with the unmodified, as-built Control Building can be safely permitted in view of the effects of the Control Building design deficiencies on seismic capability and on the seismic qualification of safety-related equipment in the Control Build-ing complex.
PID, Conclusions of Law, Slip Op. pp.51-52.
Such matters as fire protection at the facility, ECCS models, past problems with DBA sequencers and the like are totally unrelated to the Control Building design deficiencies.
11/ While it is true, as Intervenor argues, that a licensing board in a license amendment proceeding may consider matters other than those put in issue by the parties, 10 CFR 62.760a, it is not true that a board may consider matters beyond its jurisdiction. A licensing board has only that authority delegated to it through one of the five orders or notices which provide the opportunity for a hearing. Houston Lighting & Power Co. et al. (South Texas Project, Units 1&2), ALAB-381, 5 NRC 582, 592 (1977). To determine jurisdiction, the proper inquiry is a review of the hearing notice or order governing the case.
Public Service Co. of Indiana, Inc. (Marble Kill Nuclear Generating Station, Units 1&2), ALAB-316, 3 NRC 167, 170-71 (1976); Philadelphia Electric Co. et al. (Peach Bottom Atomic Power Station, Units 2&3), LBP-73-32, 6 AEC 724, 736 (1973).
The document of interest for that purpose in this proceeding, the Order for Modification of License of May 26, 1978, is clear, when read in context, that what is to be considered with regard to Trojan interim operation is the safety of such operation as affected by the identified Control Building design deficiencies.
Thus, it is clear that th6se unrelated matters of fire protection, original saistic qualification of equipment. ECCS models and the like are i= material.
On this basis alone. Intervenor's likelihood of success on the merits with regard to the Licensing Board's alleged failure to adequately consider such matters is nil.
. to assure that all issues involving the safety of interim operation, whether related to Control Building design deficiencies or not, were adequately addressed. Each of the matters cited by Intervenor as inadecuately considered, with the exception of the Trojan ECCS model, was addressed by Staff witnesses who were intimately involved in the original and subsequent Trojan reviews and analyses on the matters in question.12/
Based on the uncontroverted evidence:
(1) The original DBA sequencers which experienced problems were replaced with new ones which are fully seismically qualified and which, based on an accelerated testing program completed in the Fall of 1978, have performed perfectly with one ex-ception (Tr.2007-2010, Tr.2014-16). The single exception was not design-related but involved a mechanical adjustment which has been corrected (Tr.2020-22). The DBA sequencer matter is thus resolved.
12/ Testimony was presented by: Staff witness Vincent Noonan, a structural, shock and vibration expert who has extensive experience in the seismic testing of electrical and mechanical equipment and who was a member of the NRC audit team which audited the testing of Westinghouse equipment of the type used at Trojan (Tr.2888-89); Staff witness Daniel Mcdonald who was the primary AEC/NRC reviewer for Trojan electrical equipment qualification and who was also a member of the NRC audit team for Westinghouse equipment (Tr.2889-90); and Staff witness Henry George who performed the fire protection review for the Trojtn facility (Tr.2891-92).
Testimony on the matters raised by the limited appearance statement of Robert Pollard was also presented by Staff witness Charles Trammell, the Staff Project Manager for Trojan (Tr.2927), and by Staff witness Kenneth Herring who has been primarily responsible for the review and analyses of the Trojan Control Building design deficiencies and their effects on existing safety-related equipment seismic qualification (Staff Exhs.2, 5, 6 and 9).
In this vein, Intervenor's assertion of error on the part of the Licens-ing Board for its refusal to subpoena Robert Pollard as a Board witness (see Stay Petition, p.6; Stay Memo., p.13) is without merit.
Intervenor's reliance on Consumers Pcwer Co. (Midland Plant, Units 152), ALAB-382, 5 NRC 603, 607-08 (1977) for the proposition that a licensing board must subpoena a witness when requested to do so is misplaced. Midland stood for nothing more than the proposition that a licensing board is not pre-cluded by the Commission's directive against funding of Intervenors from subpoenaing a witness where the board finds a genuine need for his testi-mony.
In the instant proceeding there was no such need with regard to
'ollard since direct testimony was presented by those Staff witnesses most intimately involved in the raviou and analyses of the matters raised by Mr. Pollard.
(2) Fire protection equipment will remain operable af ter an eartnquake up to and including the Safe Shutdown Earth-quate (SSE) for the facility (Tr.2859-60; Tr.2910-12) and a fire, should one occur in the Control / Auxiliary / Fuel Building Complex, would not affect safety-related equip-ment or safe-shutdown capability (Tr.2915-21).
The so-called " dedicated shutdown system" to be installed at Trojan actually involved the addition of 'certain decouple switches in the safc shutdown system so that shutdown from outside the control or cable spreading rooms could be accocplished more quickly (Tr.2862). These changes, which were proposed by the Licensee but not required by the Staff, do not involve modifications which offer substantial addi-tional protection necessary for the public health and safety (Tr.2968-69), but, once completed along with other fire pro-tection improvements, will provide additional margin and an extra level of defense assuming very conservative fire scenarios (Tr.2991-92).
(3) As to the original seismic qualification of safety-related equipment at Trojan, the seismic qualification testing has been approved and found adequate (Tr.2899-2900; Tr.2902-04; Tr.2940-41) and all safety-related electrical and mechanical equipment meets the applicable requirements and is seismi-cally qualified (Tr.2900; Tr.2929; Tr.2943).
Contrary to the assertions of Mr. Pollard in his limited appearance state-ment, equipment seismic qualification matters were fully resolved at the operating license stage of review (Tr.2902; Tr.2904-07).
Seismic qualification of safety-related equip-ment in the Control Building complex has been reevaluated in light of the Control Building design deficiencies (sae PID, Slip. Op., Paragraphs 46-55, 60) and, with certaia modifi-cations to pipe supports and restraints, such safety-related equipment is properly and adequately seismically qualified to withstand earthquakes up to and including the SSE for the facility (Tr.2929-32, 2993).
(4) There are no unresolved generic or safety related issues that would bring into question the ability to safely shut down the Trojan facility in the event of an earggpuake up to and including the licensed SSE (Tr.2925-28).--
ES! While the matter of the ECCS exemption for Trojan was r.ot considered on the record for this proceeding, the Licensing Board and parties were duly informed of this matter prior to issuance of the Board's PID (see letter dated December 20, 1978 from NRC Staff to Licensing Board members). This matter, which is totally unrelated to the instant proceeding or to the safety of interim operation, relates to an error in the Westinghouse ECCS calculational model.
Based on the Staff's evaluation, it was determined that the calculational error would not affect the nuclear peaking factors applicable to Trojan, that Trojan operation will conform to the ECCS limits act forth in 16 CFn s50.46, thdt Operation will not endanger life (FOUrNG1L cuMTI!PJED ON UCT PAGE)
.. The Licensing Board's findings on these matters (PID, Slip Op. Paragraphs 56-
- 60) are fully consistent with the uncontroverted evidence and, in fact, there was no evidence presented either directly or through cross-examination that would allow different findings. Intervenor's assertions to the contrary are unsupported and unsupportable on the record.
Intervenor thus falls far short of making a showing of even a possibility of success on the merits of its appeal in this regard, let alone the required showing of substantial probability of success on the merits.
2.
The Licensing Board Was Correct In Its Finding That Need For Power Need Not Be Considered and That An EIS Need Not Be Prepared Intervenor crgues at great length that the Licensing Board committed reversible error in authorizing interim oepration without considering need for power or requiring the preparation of an EIS and contends that the weight of judicial opinion demonstrates a substantial likelihood of Intervenor's success on the merits in this regard. As to need for power considerations, it must be noted that all cases cited by Intervenor for the proposition that a consideration of need for power is necessary are totally inapplicable in that they deal with matters which must be considered before the issuance of a construction permit or an operating license or involve actions which on their face require
~ he preparation of an EIS and the balancing of costs and benefits which that t
FOOTNOTE CONTINUED FROM PREVIOUS PAGE or property, and that no public interest consideration favored restric-tion of operation (44 F.R. 961, 962, January 3, 1978). Nevertheless, it was also determined that operation would not be in technical compliance with the requirement of 10 CFR 550.46 that a facility have
<n approved and correct ECCS calculational model and that an exemption should thus be issued to correct this technical non-comformance (44 F.R. 962).
Since this matter is unrelated to the Trojan Control Building design deficiencies and since, in any event, it has no safety significance for the Trojan facility, Intervenor's implied assertion that the matter brings into question the safety of interim operation is without merit.
e entails.14/ In the case at bar, the licensee possesses an operating license and the action here involved is an amendment to that license that would temporarily waive certain requirements so that operation of the facility with identified design deficiencies would not violate the license. This is a far cry from the issuance of a construction permit or an operating license.E!
Where, as here, it has been found that the proposed action would not result in environmental impacts that would differ in any way from those originally identified, evaluated and considered in the cost-benefit balance at the initial licensing stages,
/ nothing in NEPA. requires that t.he same ground 16 covered in those initial licensing proceedings be wholly replowed. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1&2), ALAB-1 455, 7 NRC 41, 46 at n.4 (1978).
Since the Licensing Board found, based on i
the uncontroverted evidence, that the Control Building, with its identified design deficiencies, will not suffer gross failure or collapse and can safely I
be brought to a cold shutdown condition upon the occurrence of any earthquake E
E.g. Citizens for Safe Potter, Inc. v. NRC, 524 F.2d 1291 (D.C. Cir. 1975)
(operating license); Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 352 (1975) (construction permit);
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-179, 7 AEC 159, 175 (1974) (operating license); Consolidated Edison Co. of N.Y.,
Inc. (Indian Point Station, Unit 2), LBP-73-25, 6 AEC 607 (1973) (. temporary operating license for 50% power operation).
15/
- Intervenor's reliance on Cities of Statesville et al. v. AEC, 441 F.2d 962 (D.C. Cir. 1969) for the propostion that a finding of " practical value" must be made under 42 U.S.C. 92132 of the Atomic Energy Act is totally misplaced in that the " practical value" requirement was deleted from the Act (P.L.91-560, 83, 84 Stat. 1472) in 1970, before either the construction permit or the operating license was issued for Trojan.
Similarly, misplaced is Intervenor's reliance on 42 U.S.C. 62133(b) which requires a showing that a license will " serve a useful purpose propor-tionate to the quantities of special nuclear material or source material to be utilized" since this determination was made long ago at the initial licensing stages for Trojan.
E! FID, Slip. Op., Paragraph 75.
- s up to and including the SSE, there will be no different environmental impacts, no change in the costs of operation and no change in the benefits to be derived from full power operation.17/ Consequently, the Licensing Board properly limited its inquiry to assuring itself that the ultimate NEPA conclusions reached in the initial licensing decisions were unaffected.
Georgia Power Co.
(Alvin W. Vogtle Nuclear Plant, Units 1&2), ALAB-291, 2 NRC 404, 415 (1975).
See also Prairie Island supra at 7 NRC 46, n.4, and Detroit' Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 393 (1978). Thus, the Licensing Board was totally correct in eschewing a reconsideration of need for power or a restriking of the original cost-benefit balance for the facility.
Similarly, the authorities cited by Intervenor for the proposition that an EIS is required here all dealt with cases where the proposed federal action, on its face, involved significant environmental impacts, where it was conceeded that an EIS was required, or where an EIS was being prepared while the major federal Al! While it is true that dicta in Union of Concerned Scientists v. AEC, 499 F.2d 1069,1083 (D.C. Cir.1974) indicates that a license amendment derating a nuclear power plant may require a restriking of the original cost-benefit balance since benefits may change from those originally ideatified, such dicta has no applicability here where-the license amend-ment does not affect the licensed power output of the facility.
Similarly, Intervenor misreads 10 CFR H51.5(b)(3) in asserting that that regulation indicates that an EIS may or may not be required for issuance of an operating license for less than " design capacity."
(See Stay Memo., p.5).
Read in context, "leus than design capacity", as used in Section 51.5, clearly refers to less than full reprocessing or enrichment capacity for a fuel reprocessing or isotopic enrichment plant, just as "less than full power" refers to less than full design power production capacity for a power reactor. The referer. e to " design capacity" in Section 51.5 cannot be taken to mcan " structural design capability" as implied by Intervenor.
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action significantly affecting the environment proceeded.18/
In the instant case, the Licensing Board has found, based on the uncontroverted evidence, that the amendment in question will not result in environmental impacts that differ in any way from those previously evaluated at the initial licensing stages.
Its determination that neither an EIS nor an environmental impact appraisal and negative declaration is required is thus totally correct.--/ Where agency action 19 obviously has no enviornmental impact, compliance with NEPA involves no more than making that initial determination. Mobile Oil Corp. v. FTC, 430 F.Supp. 855, 874 at n.28 (D. N.Y. 1977). The Licensing Board has fulfilled that requirement.
In view of the foregoing, Intervenor's likelihood of success on the merits is minimal. This first factor of 10 CFR H2.788 thus weighs heavily against the granting of a stay.
--18/ E.g., City of Davis v. Coleman, 521 F.2d 661, 674-75 (9th Cir. 1975)
(obvious that proposed action would have substantial impact on a number of enviornmental factors); Mobile Oil Corp. v. FTC, 430 F.Supp. 855, 859, 875 (D. N.Y. 1977) (obvious on its face that proposed action would have cignificant environmental impacts); NRDC v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975) (EIS supplement required where new and different site chosen); NRDC v. NRC, 539 F.2d 824 (2d. Cir. 1976), cert. eranted, 430 U.S. 944, vacated, 434 U.S. 1030 (1978) (programmatic EIS needed for broadscale program prior to individual licensing actions); Monteomery
- v. Ellis, 364 F.Supp. 517, 529, 533 (E.D. Ala. 1973) (inadequate and outdated EIS must be revised for ongoing federal project); Sierra Club
- v. Froehlke, 359 F.Supp. 1289, 1323, 1331, 1338 (S.D. Tex. 1973) (inade-quate EIS must be revised for ongoing federal project); Stop H-3 Ass'n.
- v. Volpe, 353 F.Supp. 14, 17 (D. Hawaii 1972) (EIS must be completed prior to start of major federal action significantly affecting environ-ment); Virgians for Dulles v. Volpe, 541 F.2d 442, 446 (4th Cir. 1976)
(EIS required for revision or expansion of ongoing federal action signifi-cantly affecting environment).
'19/
--- Intervenor argues that an EIS is necessary under the CEQ guidelines be-cause the proposed amendment is " controversial".
(Stay Memo., pp.5, 6-7).
Controversial, however, means that there is a substantial dispute over the size, nature or effect of the action, not merely that there is con-tinued opposition to it.
Rucker v. Willis, 484 F.2d 158, 163 (4th Cir.
1973); Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972), cert den.,
412 U.S. 908; city of New Haven v. Chandler, 446 F.Supp. 925, 932-33 (D. Conn. 1973). While there may be continuing opposition to interim operation of Trojan, there is nothing on the record of otherwise pre-stented by Intervenor that indicates any substantial dispute as to the effects of interim operation.
c.
Irreparable injurv Intervenor's assertion of irreparable injury in the absence of a stay rests on two basic claims.
First, __ is argued that because of alleged unresolved safety issues, interim operation of the Trojau facility is unsafe and the occurrence or an earthquake during the period of interim operation will result in offsite doses in excess of 10 CFR Part 100 guidelines (Stay Petition pp.6-
- 7) which in turn will pose a threat to public health and safety and cause injury to members of the gcablic (Stay Memo., p.14). Second, the absence of a stay is said to cause irreparable injury to Intervenor's right to appellate review.
1.
There Are No Unresolved Safety Issues With Regard To Interim Operation and Such Operation Does Not Pose a Threat To Public Health and Safety As previously indicated, a substantial record was compiled demonstrating that there are no unresolved safety issues that would bring into question the safety of interim operation.20/ Consistent with the uncontroverted evidence, the Licensing Board found that "[t]here are no unresolved safety issues, whecher generic or plant specific, which have any l earing on the safety of interim operation of the facility,"SE! that actual failure of the Control Building due to an SSE is not a credible event, that the " ability to achieve safe shutdown, assure integrity of the reactor coolant system and prevent or mitigate conse-quences of serious accidents would not be affected" by the displacements resulting from an SSE E! and that "the' safety-related equipment, components and systems necessary for safe shutdown, as well as the safety-related piping
---20/ See Section II.B.1 supra.
---21/ PID, Slip Op., Paragraph 60, p.61.
---22/ PID, Slip Op., Paragraph 65, pp.42, 43.
.. -. -. after modification,E are adequately qualified to withstand the SSE." E Inter-venor does not challenge these findings by showing that they are erroneous or even citing evidence that would bring them into question but merely disputes their correctness by conclusory and unsupported claims that they are wrong.
In the face of all of the evidence to the contrary, far more is required to even raise a question with regard to the safety of interim operation, much less show irre-parable harm absent a stay.
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2.
Denial of A Stay Does Not Affect Intervenor's Right to Meaningful Appellate Review Intervenor's claim that denial of a stay will cause irreparable injury to its right to appellate review is novel but, in view of the uncontroverted evidence on the safety of interim operation and the Licensing Board's findings in that
. regard, it is incorrect. Intervenor's concern here, though difficult to ascertain, is apparently based on the view that interim operation and its effects, once com-menced, are somehow irreversible or irredressible.E! In view of the uncontro-verted evidence and the Licensing Board's findings that interim operation will be safe and will not result in environmental impacts different from those identi-fled and assessed at the initial licensing stages for Trojan, interim operation
-23/ A license condition was imposed requiring certain modifications to safety-related piping prior to the resumption of operation.
PID Order, a3.
E! PI", Slip Op., Paragraph 61, p.40.
E! In this vein, Intervenor cites Barri2an v. Sigler, 475 F.2d 918 (D.C.
Cir. 1973), a case in which a district court denic/ the plaintiff's request for a temporary restraining order against parole board's decision prohibiting the plaintiff from visiting North Vietnam.
Since the plaintiff's invitation to North Vietnam had a time limit which would soon expire, the Court of Appeals held that it would allow an immediate appeal since the plaintiff's trip to North Vietnam would be irretrievably lost absent such imacdiate review.
Similarly, the cases cited by Inter-venor at page 7 of its Stay Petition and pages 14 and 15 of its Stay Memo.
all emphasize the concept of irredressibility or irretrievability if a stay or injunction is not granted.
- N m
is not irrevocable.
Intervenor has not shown any manner in which its right to a meaningful appeal will be irretrievntely lost if a stay is not granted and the facility is permitted to operate while Intervenor prosecutes its appeal.
- Indeed, absent an even minimal showing that interim operation is unsafe or that sub-stantial environmental impacts will result, it is clear that the status quo ante can be restored simply by an order shutting down the facility.
Based on the foregoing, Intervenor has failed to demonstrate that it will suffer irreparable injury if its request for stay is denied. This second factor thus weighs against granting a stay.
D.
Harm to the Other Parties
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Intervenor argues that no harm will accrue to the other parties if a stay of interim operation.is granted since Trojan has been shut down since March of 1)78 and, during that time, the licensee has not gone bankrupt and there has been no power shortage. A continuation of Trojan shutdown will allegedly not alter this situation. N Intervenor's arguments ignore the fact that the licensee possesses a full power operating license and that there is substantial, uccontroverted evidence demon-strating that interim operation will be safe and will result in no environmental impacts beyond those previously identified and evaluated. A stay in such a situation is unwarranted and, since it is conceivable that the licensee might have to procure replacement power for Trojan during the pendency of a stay, it is at least arguable that a stay will result in harm to the licensee, even if E! Stay Petition, p.8; Stay Memo., pp.15-16.
. it is only economic harm.27/ Consequen'ly, in the Staff's view, Intervenor has failed to show that no harm will result to the other parties if a stay is granted.
E.
Where the Public Interest Lies Intervenor again argues that because the licensee has not gone bankrupt and there has been no power shortage during Trojan's shutdown and that because interim operation is allegedly unsafe, the public interest favors granting a stay pending appeal.
The lack of merit in Intervenor's arguments with respect to the safety of interim _ operation has been discussed at some lengta and will not be rehearsed again.
Absent any safety or environmental concerns, reason and logic lead to the inescapable conclusion that the public interest favors the operation of Trojan, a facility that is built, is licensed to produce power, and is part of the power production capacity of the licensee.
Representatives of both the State of Oregon 28/ and the State of Washington 9/ have expressed as much 2
S2! conomic injury to a party's business can be considered in determining i
injury under the Virginia Petroleum Jobbers criteria. Washington Metro-politan Area Transit Com'n. v. Holidav Tours, 559 F.2d 841, 843 (D.C.
Cir. 1977). While it is true, as Intervenor asserts, that purely economic interests are not within the zone of interests protected by the Atomic Energy Act, that particular proposition is directed toward the requirements for standing in NRC proceedings.
See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1&2), CLI-76-27, 4 NRC 610 (1976); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 162), ALAB-413, 5 NRC 1418 (1977).
There is nothing to indicate that the economic interests of a licensee or of consumers of electricity can-not be considered in determining the existence of harm to a party or where the public interest lies when a stay is requested.
SS! r.297-299.
T SE!
r.302.
T
- on the record.30/ The Commission itself directed that interim operation should be given expeditious consideration, thus implying that the public interest favors such operation if it is found to be safe and environmentally sound.31/
Intervenors have not shown otherwise and, consequently, the fourth factor does not favor granting a stay.
III. CONCLUSION Based on the foregoing, Intervenor failed to demonstrate that any of the four factors set forth in 10 CFR 82.788(e) favor a stay pending appeal of the Licensing Board's Partial Initial Decision authorizing interim operation.
Intervenor's request for stay must, therefere, be denied.
Respectfully submitted,
' 'A. 4, /] ;/7 y
(
s h R. Gra' unsel for NRC S aff Dated at Bethesda, Maryland this 19th day of January, 1979 SSI A determination of where the public interese lies can include a consi-deration of preserving the economic viability of existing public services and a consideration of actions to save consumers needless expense.
Virginia Petroleum Jobbers Ass'n. v. FPC, 259 F.2d 921, 925-927 (D.C.
Cir. 1958).
31/
--- Commission Order denying licensee's petition for temporary operation in the Matter of Portland General Electric Co. et al. (Trojan Nuclear Plant),
July 7, 1978 (unpublished), at p.3.
~~.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIN BEFORE THE ATOMIC SAFETY AND LICENING APPEAL BOARD In the Matter of
)
)
PORTLAND GENERAL ELECTRIC COMPANY, ET AL. )
Docket No. 50-344
)
(Control Building)
(Trojan Nuclear Plant)
)
~
' CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER OPPOSING REQUEST FOR STAY PENDING APPEAL OF THE COALITION FOR SAFE POWER" in the above-captioned proceeding 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 19th day of January, 1979:
Alan S. Rosenthal, Esq., Chairman
- Dr. Hugh C. Paxton At 'ic Safety and Licensing Appeal 1229 41st Street L.-
- d Los Alamos, New Mexico 87544 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. John A. Kullberg Route 1, Box 250Q Dr. John H. Buck, Member
- Sauvie Island, Oregon 97231 Atomic Safety and Licensing Appeal Board John H. Socolofsky U.S. Nuclear Regulatory Commission Robert M. Johnson Washington, D.C.
20555 Oregon Department of Energy and Oregon Public Utility Commissioner Dr. W. Reed Johnson, Member
- Department of Justice Atomic Safety and Licensing Appeal State Office Building Board Salem, Oregon U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert Lowenstein, Esq.
Lowenstein, Newman, Reis Marshall E. Miller, Esq., Chairman *
& Axelrad Atomic Safety and Licensing Board Suite 1214 U.S. Nuclear Regulatory Commission 1025 Connecticut Avenue, N.W.
Washington, D. C.
20555 Washington, D.C.
20036 Dr. Kenneth A. McCollom, Dean Mr. David B. McCoy Division of Engineering, 348 Hussey Lane Architecture & Technology Grants Pass, Oregon 97526 Oklahoma State University Stillwater, Oklahoma 74074
~
. H. M. Phillips, Esq.
Gregory Kafoury, Esq.
VJ.e President, Corporate Counsel for Columbia Environmental Counsel and Secretary Council fortland General Electric Company 202 Oregon Pioneer Building 121 S. W. Salmon Street 320 S.W. Stark Street Portland, Oregon 97204 Portland, Oregon 97204 William W. Kinsey Atomic Safety and Licensing Board 1002 N. E. Holladay Panel
- Portland, Oregon 97232 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Ms. Nina Bell 632 S.E. 18th Atomic Safety and Licensing Appeal Portland, Oregon 97214
- Panel (5)*
U.S. Nuclear Regulatory Commission Mr. Stephen M. Willingham Washington, D. C.
20555 j
555 N. Torahawk Drive Portland, Oregon 97217 Docketing and Service Section (4)*
i Office of the Secretary Mr. Eugene Rosolie U.S. Nuclear Regulatory Commission Coalition for Safe Power Washington, D. C.
20555 215 SE 9th Avenue Portland, Oregon 97214 Hb. C. Gail Parson 800 S.W. Green #6 I
Portland, Oregon 97206 4?l W/
Jos/ph,k. Gray (J
[
Cobnsel for NRC Staff
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