ML19274D795
| ML19274D795 | |
| Person / Time | |
|---|---|
| Site: | 07002623 |
| Issue date: | 02/02/1979 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7902260159 | |
| Download: ML19274D795 (7) | |
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s In the Matter of
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V DUKE POWER CLIEANY
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Docket No. 70-2623
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(>Nt of Materials
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License SNM-1773 for Ocenee
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Nuclear Station Spent Fuel
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Transportation and Storage
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at McGuire Nuclear Staticn)
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ORDER DENYEU ORIEC1' IONS OF REUAL RESOURCES DEFEDSE COUNCIL 10 SUPPLEMOTTAL PRBiEARING CONFERENCE ORDER (February 2, 1979)
I.
On January 9,1979, the "Atcmic Safety and Licensing Board designated to Ide en petiticns for leave to intervene" entered a
' Supplemental Order Ruling on Petitions for Leave to Intervene."
That Supplemental Order helithat the petition for leave to :ntervene timely filed by the Natural Resources Defense Council (53DC) did not establish standing as a matter of right, using center:poranecus judicial
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concepts of standing (pp. 2-14). The corpcrate petiticner had refused to provide the name and address of even a single =sier oto would be affected by the proposed action, and to had authorized or recuested representation by NEDC in this matter (pp. 4-7, 9-10, 13-14).
It was further held that discreticnary interiention shculd not be granted because NEDC has not shcwn significant ability to contribute on substantial issues of law cr fact which will not otheraise be properly 790226016f C_
. raised er presented, even thou6h "NRDC is a prestigicus naticnal envi.m tal crganizatica that has long been concerned with ccceercial applications of nuclear pcwer" (pp.18-20). The Supplenental Order pro-vided that it could be appealed within ten (10) days after service, in acco*.ce with the provisions of 10 CFR 52.714a (p. 26).
On January 16, 1979, NRDC filed a r:cticn fcr extension of time within which to file cbjecticn to the Supplemental Crder, pursuant to 10 CFR 52.751a(d). This NRDC cetion was granted by Order dated January 18, 1979 extending the time to file objecticns to January 29, 1979. NEDC's Objections to Sucplemental Prehear1rg Conference Order were filed January 26, 1979. The Applicant, Duke Pcwer Ca:pany, filed its opposition to the NEDC totien for extensicn of time, and requested the Licensing Board to reconsider its grant of the time extensicn, en January 26, 1979.
II.
The Ata::ic Safety and Licensing Board established to rule en petitions and/or requests for leave to interveneb eld a special h
prehearing ccnference en October 24, 1978. By Order Follcwing Prehearing Conference dated Novecter 2,1978, the intervention petiticas filed by three other petitioners were granted by the Board. Ecwever, rulings en the petitions for leave to intervene filed by NEDC and another petitioner E43FederalResister 39197 (1978).
. were deferred, pending receipt of f'rther pleadings concerning those petitiens.2/ In both &.e prehearing ccnference order and the notice of hearing attached to it, the Board referred to itself as an "Interventien Board" (Order, pp.1, 3, 5; Notice of Hearing, p. 3). The Board designated in the Notice of Hearing to conduct future prehearing conferw.ces and the hearing was described as a " Hearing Board" Ciotice,
- p. 3).
At the special prehearing conference held on October 24, 1978, counsel for NEDC specifically contended that the Interventica Board conducting the conference had the limited role of passing en standing, interest and pimding at least one valid cententicn.3_/ He further argued that the Board's authority was li=ited by the order establishing it "to rule en petiticns and/or requests for leave to intervene," and thatitwasnotauthorized"toconducta2.751aproceeding."b/
The CMim in response recognized the distincticns in function between a petiticn or interventien board, and a heari:u; board.5/ The ensuing 2/
- Order Folicwing Prehearing Conference dated Noverber 2,1978, pp.
5-6; Notice of Hearing appended thereto as Attaclrent A, p. 3.
3/
- Special Prehe.aring Conference, October 24, 1978, Tr. 73-75.
b/
- r. 76, 83.
T El Tr. 77, 79.
. Order of Novec:ber 2 follcwing the special prehearing cer#erence also deferred ruling cn the EDC interventien petiticn pending receipt of further pleadings and briefs (pp. 5-6), tithough a notice of hearing us filud and published irneh as three c'd.er interventien petiticas teere granted, thereby assuring a hearing regardless of the action to be taken on the EDC petition.
The Appeal Board has had occasicn to analyze the " disparate duties of the interventien and hearing boards."E 'Iheir respective functions were thus described:
nhile of i=portance, the function of the Licensing Board established to rule en a petition for intervention is quite limited in scope. 'nhat that Board is called upcn to decide is *ather the petitie.er(s) should be pernitted to intervene in the proceeding. Insofar as the catter of contentions is concerned, this deter:nnation involves an asem*mt as to d. ether there is at least cne stated centention in the petitien *.ich satisfies the dictates of Section 2. 714(a).
If so, and the other requirements of the Section are found to have =et, the Licensing Board is justified in granting the petiticn and thus ccepletirg its assigned task--without regard to the adequacy of the other stated cententiens.
"At that point, the Licensirg Board responsible for the hearing comes into the picture. It is its task, inter ccatenticus during tte alia, to deal with the remaining < U course of prehearing procedures."
In Stanislaus / the Appeal Board took cognizance of the custcr:ary 0
distincticn betmen these em types of licensirg boards as folicws:
0I-Duqmsne Light Comoany, et al. (Beaver Valley Pcwer Station, Unit No.1), AIAB-109, 6 AEC 243, 245, fn. 4 (1973).
E d., at 245.
Id 8/
- Pacific Gas and Electric Ccn:Dany (Stanislaus Nuclear Project, Unit No.1), AIAB-400, 5 EC 1175,1177-78 (1977).
. '*Ihe role assigned to the Board at the tim of its establish-ment by the CFnim of the Licensing Board Panel was a narrow one:
'to rule en petitions and/or requests for leave to intervene in [this] proceedirg.' 41 Fed. Reg. 26081 (June:24,1976). The Board was not given the additional authority to proceed beycnd that asisg: rent ard to entertain filings going to the merits of the controversy betw en the petitioners and the applicant.
In thus cen-fining the area of respcnsibility of the Board, the Licensing Board Panel Chair =an was adhering to firnly rooted en missicn practice. In virtually all NRC pro-ceedings in which a hearing is not mandatory but rather
.is dependent upon a successful intervention petition being filed in response to the published notice of ccoortunitv [e:phasis in origiral] for hearing, an
' intervention' licensing board is especially established for the sole purpose of passing upon such petiticra as may have been filed....
Should, Pcaver, at least one petition be granted in whole or in part, thus giving rise to the necessity for adjudication of the merits of the issues presented therein, a discrete licensing board is then established to perform that function.
[Citaticns cmitted.] The second or ' hearing' board may or may not have the same ccn: position as the ' intervention' board which preceded it....
In tra totality of circunstances, we think the settled division of jurisdicticn between
'interventicn' and ' hearing' boards to be as sensible as it is venerable and therefore reject out-of-band the applicant's claim to the contrary.
We hold that the Supplerental Order of January 9 was entered by the Board acting as an Interventien Board under tFa provisicas of 10 CFR 52.714, pursuant to retained jurisdicticn to pass on tFa NRDC inter-vention petition. Apoeals from such Suppleental Order should be taken under 10 CFR 52.714a, and in accordance with the final paragraph of that order.
The provisions of 10 CFR 52.751a regarding a special prehearing ccnference order, and objections thereto, are not reasonably applicable to the procedural posture of the instant proceeding.
It is apparent that many of the issues to be censidered at a special prehearing conference under $2.751a are not really relevant to those matters to be considered by an intervention beard, with the limited functicn of rulig on inter-vention petitions. Such $2.751a matters as the identificatien of key issues, schech H ng further actions, sch"h sien of status reports en discovery and the like, uculd more properly be within the jurisdicticn of the subsequent hearing board. Khile special prehearing conferences under 52.751a may be held in different types of proceedings for different purposes,E we agree with the positicn taken by able counsel for NRDC at the special prehearing conference. This was a 52.714 pro-ceeding, not a 52.751a proceeding. Accordingly, the filing of objecticas under the latter secticn was inapptu,utiate under the circu= stances.
III.
In order to avoid unnecessary delay for procedural reascns, we will also consider the NEDC objecticas to the Supplemental Order en their merits. We have carefully reviewed the seva-page statemme of objections, and do not find any basis to reverse the Order of January 9.
The issues of law and fact were considered in tbat order, and there is no point in rerely reiterating them.
It is apparent that there is a substantial difference of opinion between NRDC and the Board en important principles.
It is suggested that another licensing board may have the same issues involved, stich might require Appeal U Wiscensin Electric Pcwer Ceccany, (Point Beach Nuclear Plant, Units 1 and 2), LEP-78-23, 8 !aC 71, 74-76 (1978).
. Board detemination.
Ir. any event, we decline to recensider our prior decision in the Supplecental Order of January 9,1979.
Pursuant to 10 GR 52.714a, this order may be appealed within ten (10) days after service of the order. The appeal sball be asserted by the filing of a retice of appeal and accm:canyirg supportir4 brief. Aref other party arf file a brief in support of or in oppcsitica to the appeal within ten (10) days after service of the appeal.
IT IS 50 ORDERED.
FOR THE AIGMIC SAFETY AND LICEEUU BOARD 9
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Marshall E. Miller, Chai=an Dated at Bethesda, Marrland this 2nd day of Februarf 1979.