ML19296B247
| ML19296B247 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 02/13/1980 |
| From: | Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002200320 | |
| Download: ML19296B247 (8) | |
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UNITED STATES OF AMERICA 2/13/80 NUCLEAR REGULATORY COM'4ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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DAIRYLAND POWER COOPERATIVE
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Docket No. 50-409
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(SFP License Amendment)
(La Crosse Boiling Water Reactor)
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NRC STAFF MEMORANDUM IN RESPONSE TO THE ORDER OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD STATEMENT On January 10, 1980, the Licensing Board issued an Initial Decision in the present proceeding approving the application for a license amendment proposed by the Dairyland Power Cooperative for expansion of the spent fuel pool at the La Crosse nuclear plant.
In that decision the Board also determined that it had jurisdiction to raise and consider the issue of the need for power from the La Crosse nuclear plant for a period of three years pending the issuance of a full term operating license for that facility. The Board grounded its decision upon the fact that no final environmental impact statementU had previously been prepared for the La Crosse facility in that it was licensed prior to the enactment of the National Environmental Policy Act of 1969 as amended (NEPA), 42 U.S.C. %4332.
The Board further stated that because it believed that a prompt decision on the jurisdictional question was in the public interest, it was referring the issue to the Appeal Board for its determination. LBP-30-2, 11 NRC (January 10,1980) (Slip h. at 58).
U The Draft Environmental Statement in this proceeding was issued in 1976.
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. Thereafter, on January 18, 1980, the NRC Staff filed exceptions to:
Finding Number Six of the Atomic Safety and Licensing Board contained in the Initial Decision on an applica-tion for a license amendment allowing expansion of the capacity of the spent fuel storage pool issued January 10, 1980, and the determination in that decision that the Board had jurisdiction to consider the need for the La Crosse facility.1/
s In response to these actions by the Licensing Board and the Staff, this Board entered an Order on January 30, 1980, directing the NRC Staff to submit a memorandum addressing the following two questions:
(1)
If there are few or no other nuclear facilities in a similar or analogous status to that of La Crosse, why should we nonetheless entertain the referral?
(2) Since the Staff has filed an exception to only one of the grounds upon which the Board rested the referred ruling which might be adequately supported by one of the other, alternative reasons,3_/ why should not the Staff's appeal be dismissed?J/
The present memorandum is submitted in response to that Order.
I.
The Staff submits that the Appeal Board should consider the jurisdictional issue referred to it by the Licensing Board in that there are a number of 2/ NRC Staff Exceptions to Initial Decision at 1.
1/ The Staff understands the Appeal Board's reference to "other, alternative reasons" to be those explicated by the Licensing Board in Part III: Juris-diction to Consider Need for Power in the Initial Decision.
i/ Order of January 30, 1980, at 2.
plants which could be affected by that decision. Specifically, there are four plants which are in a similar or analogous status to the La Crosse facility in that they were licensed prior to the enactment of the NEPA and for which no Final Environmental Impact Statement (FES) has been prepared. These facilities are Yankee Rowe, Dresden I, Huaboldt Bay and Big Rock Point.
Dresden I and Humboldt Bay are presently shut down. l/ Yankee Rowe and Big Rock Point as well as La Cra are operating plants. Big Rock Point is presently the subject of a contested spent fuel pool amendment proceeding, and both Yankee Rowe and La Crosse were granted spent fuel pool amendments in previous years. All five plants have been granted license amendments for various matters in the past.
Of imediate significance to the question of whether other facilities are in a status analogous to that of La Crosse is a recent ruling in the spent fuel pool modification proceeding for the Big Rock Point plant. The Licensing Board appointed to the Big Rock Point proceeding issued an Order on January 17, 1980, directing the parties to file briefs addressing the identical issue referred by the La Crosse Licensing Board. f/ The Big Rock Point Licensing Board referenced and attached to its Order, Part III (Jurisdiction to Consider Need for Power) of the La Crosse Initial Decision for consideration by the parties.
Thus, the legal issue raised by the La Crosse Licensing Board has already become an issue in 6nother proceeding where a similar fact situaticn exists.1-/
E Dresden I is shut down for decontamination, installation of an emergency core cooling system, and modification of its plant protection system.
These matters are scheduled t6 be completed in 1981.
It is unknown whether Humboldt Bay will return to operation, b/ Consumers Power Company (Big Rock ?oint Nuclear Plant), Docket No. 50-155, Order Following Special Prehearing Conference, January 7, 1980, pp. 32-34.
2/
Some of the Licensing Board's reasoning could also be interpreted to require environmental impact statements on other amendments for these facilities that do not have final environmental impact statements, as many of the amendments are necessary to continue plant operation.
. For the reasons set forth above, the Staff believes that the issue referred to the Appeal Board by the Licensing Board is a matter of importance similar to that decided recently in Shearon HarrisSI which, also, "[could not] be dis-missed as of little or no precedential importance," since the ruling at issue has already affected another proceeding.
In the Staff's view, the " extraordinary circumstances" described in Prairie Islandd/ exist also in the La Crosse pro-ceeding and comprise a " legal issue of clear recurring importance" deserving consideration and decision by the Appeal Board. Consequently, the Staff urges the Appeal Board to accept the referral by the Licensing Board, which by its referral, signified its concern about a possibility of public detriment, delay, I
or expense causec by its ruling.LG II.
In response to this Board's 'urther inquiry as to the scope of the Staff's exceptions to the Licensing Board's dacision, it is the Staff's position that the exceptions taken address fully the jurisdictional grounds relied upon by the Licensing Board. Specifically, the Staff submits that in taking exception to the Licensing Board's jurisdiction to consider the need for the La Crosse facility, it did, a_ fortiori, take exception to all grounds relied upon by the Board in reaching its conclusion that it possessed jurisdiction to act in this 1/ Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-577, 11 NRC (January 29,1980) (slip 02. at 12).
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--- Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 AEC 1175,1177-78 (1975).
E 10 C.F.R. 92.730(f) provides for referral of a ruling when, in the judgment of the presiding officer, prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense.
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circumstance.31#
In the proceeding below, the Staff questioned the Licensing Board's jurisdiction to order the need for power hearing, and in compliance with the Board's direction, the Staff filed a brief in opposition to orisdiction along with its proposed Findings of Fact and Conclusions of Law. N After the Initial Decision issued, the Staff filed exception to the Board's Conclusion of Law Number Six as well as the " determination in that decision that the Board had jurisdiction to consider the need for the La Crosse facili,y."13 /
The Commissior 's regulations prescribing the procedure for taking appeals from initial decisions expressly provides that:
... each exception shall be separately numbered and shall:
(1) state concisely, without supporting argumentation the single error of fact or law which is being asserted in that exception; and (2) identify with particularity the portion of the decision (or earlier order or ruling) to which the exception is addressed, g/
In compliance with this regulation, the Staff limited its exceptions in this case to the determinat i.,
i n the decision of the Board's jurisdiction and the explicit finding in the Conclusions of Law which supported that jurisdiction.
In sum, the Staff excepted to the specific portion of the decision contained in Conclusion of Law Number Six which supported jurisdiction, as well as excepting to the determination of jurisdiction by the Board.
Under such circumstances, the exceptions taken by the Staff were, we believe, fully in D
The Staff misstated that it took exception to Finding Number Six instead of Conclusion of Law Number Six in those Findings. However, it is clear since we quoted that Conclusion of Law, that the Staff is excepting to the jurisdiction as found in that Conclusion in the Findings.
E The Licensing Board referenced the briefs opposing jurisdiction filed by Staff and Applicant in conjunction with the referral.
Initial Decision,
- p. 58, fn. 27.
E NRC Staff Exception to Initial Decision, January 18, 1980.
. compliance with the Commission regulations, and of a sufficient breadth to permit the briefing and arguing in this appeal of all of the jurisdictioncl grounds relied upon by the Licensing Board in its Initial Decision.
CONCLUSION Thus, for the foregoing reasons, the Staff submits that the referral of the Licensing Board should be accepted by this Board.
However, in the event it is not accepted, the Staff submits that the exceptions it has taken to the Licensing Board decision are sufficiently broad to permit it to address on appeal all grounds relied upon by the Board below in reaching its jurisdictional decision.
Respectfully subm'tted,
/
Colleen P. Woodhead Counsel for NRC Staff Dated at Bethesda, Maryla nd, this 13th day of February, 1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING, APPEAL BOARD In the Matter of
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DAIRYLAriD POWER COOPERATIVE Docket No. 50-409 (La Crosse Boiling Water Reactor)
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(SFP License Amendment)
_C_ERTIFICATE OF SERVICE I hereby certify that copies of "URC STAFF MEM0RAf1DUM IN RESPONSE TO THE ORDER OF THE ATOMIC SAFETY AND LICENSING APPEAL BOARD" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this 13th day of February, 1980:
Alan S. Rosenthal, Chairman
- Mr. Ralph S. Decker Atomic Safety and Licensing Appeal Route 4, Box 1900 Panel Cambridge, Maryland 21613 U.S. Nuclear Regulatory Comission Washington, D. C.
20555 George R. Nygaard Mark Burmaster Dr. Lawrence R. Quarles Anne K. Morse Apt. 51 Coulee Rer:on Energy Coalition Kendal at Longwood P.O. Box 1583 Kennett Square, Pennsylvania 19348 La Crosse, Wisconsin 54601 Frank Linder Thomas S. ftoore*
General Manager Atomic Safety and Licensing Appeal Dairyland Power Cooperative Panel 2615 East Ave., South U.S. Nuclear Regulatory Comission La Crosse, llisconsin 54601 Washington, D. C.
20555 Robert H. Owen, Jr., Esq.
Charles Bechhoefer, Esq., Chairman
- 2327 Willard Avenue Atomic Safety and Licensing Board tiadison, !!isconsin 53704 Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- 0. S. Hiestand, Esq.
Dr. George C. Anderson Kevin Gallen, Eso.
Department of Oceanograpny Morgan, Lewis & Bockius University of Washington 1800 M Street, N.W.
Seattle, Washington 98195 Washington, D. C.
20036
Fritz Schubert, Esq.
Staff Attorney Dairyland Power Cooperative 2615 East Ave., South La Crosse, Wisconi n 54601 Atomic Safety and Licensing Appeal Board
- U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Docketing and Service Section*
U.S. Nuclear Regulatory Commission Washington, D. C.
20555 J'
V Colleen P. Woodhead Counsel for NRC Staff 6
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