ML19331C524
| ML19331C524 | |
| Person / Time | |
|---|---|
| Site: | Perkins  |
| Issue date: | 08/14/1980 |
| From: | Bowers E Atomic Safety and Licensing Board Panel |
| To: | Springer D AFFILIATION NOT ASSIGNED |
| References | |
| ISSUANCES-CP, NUDOCS 8008180666 | |
| Download: ML19331C524 (11) | |
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NUCLEAR REGULATORY COMMISSION ci a ditS[h '
i THE ATOMIC SAFETY AND LICENSING BOARD
\\g C: '%M Elizabeth S. Bowers, Chairman
' 'sM Dr. Walter H. Jordan, Me=ber Dr. Donald P. de Sylva, Menber In the Matter of
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DUKE POWER COMPANY
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Docket Nos. STN 50-488-CP
)
STN 50-489-CP (Perkins Nuclear Station,
)
STN 50-490-CP Units 1, 2 and 3)
)
ORDER RELATIVE TO THE PETITION OF DAVID SPRINGER AND INTERVENOR'S MOTION OF JUNE 6, 1980 (August 14, 1980)
On June 20, 1980, the Appeal Board issued a Memorandt:a and Order which questioned our analysis of the jurisdictional question and directed this Board to address the =erits of the Springer petition to intervene and the Intervenors' motion of June 6, 1980 to reconsider or reopen the record.1/
The Order also stated that a date for filing exceptions would await the action by the Licensing Board.
Although not specifically requested by the Appeal Board to give further consideration to the jurisdictional question, we deem this an opportunity to reconsider our position on jurisdiction.
10 CFR 2. 718(j) provides that the power exists with the presiding officer (the Board) to " Reopen a proceeding for the reception of further evidence at any time prior to initial decision."
1IIn the Matter of Duke Pcwer Company (Perkins Nuclear Station, Units 1, 2 and 3) AI -597,11 NRC _ (1980).
[ 60 voo a teou c, 5 #/
O 2-i This section has not been amended since 1970 and Licensing Boards were not then involved in issuing partial initial decisions.
There I
is no question about the authority of the Commission or the Appeal l
Board to remand an issue or issues to reopen for a further evidentiary hearing by the Licensing Board.
In Perkins, on i
February 22, 1980, we issued a Partial Initial Decision on the appropriate issues under the question "Is an alternate site obviously superior to the Perkins site?"
We still have the question of generic safety issues before us.
The question at hand, then, is "Does a licensing board have jurisdiction to reopen a proceeding to receive evidence en a matter that has been addressed in a partial initial decision while it still has other unrelated aspects of the case before it?"
In a series of cases in different, but applicable procedural postures, the Appeal Board has held the answer to this question is no.
The three cases cited in note 2, supra, when read together and particularly North Anna, hold that when the Appeal Board has i
terminated its review of some issues, but not of all issues, it 1acks jurisdiction to reopen the record.except on new matters bearing a " reasonable nexus" to the issues still remaining before it.
In sum, the litigation of the Commission, as is in fact reflected by actual practice, precedent, and the regulations, does 2/ Virginia Electric & Power Co. (North Anna, Units 1 and 2),
ALAB-551, 9 NRC 704 (1979): Public Service Co. of Indiana, et al.
(Marble Hill, Units 1 and 2), ALAB-530, 9 NRC 261 (1979); PuElic Service Co. of New Hampshire, et al. (Seabrook, Units 1 and 2),
-ALAB-513, 8.NRC 694 (1978).
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s not proceed before each successive tribunal, seriacim, upon completion of consideration of all of the issues.
Jurisdiction is lost over some issues upon completion of consideration of them, while retained over other issues pending completion of consideration.
Accordingly, section 2. 718(j) must be read to mean that an initial decision on some issues terminates a licensing board's jurisdiction to reopen the proceeding on those issues.3/
The above conclusion is consistent with the Commission's encouragement of separate hearings and decisions on different issues in a proceeding.
See 10 CFR 552.761a and 2.606; Housten Lighting and Power Co. (Allens Creek, Units 1 and 2), ALAB-301, 2 NRC 853 (1975); Potomac Electric Power Co. (Douglas Point, Units 1 and 2), ALAB-277, 1 NRC 539 (1975).
Some possible knotty jurisdictional problems may appear in situations where a licensing or appeal board has lost jurisdiction of an issue in an l
early site review context, as encouraged by Douglas Point, supra, 3/ n older Appeal Board decision appears inconsistent with the A
rationale of North Anna, supra, and its predecessors.
In Wisconsin Electric Power Co., et al. (Point Beach, Unit 2),
ALAB-86, 5 AEC 376 (1972), the Xppeal Board held that the licensing board had jurisdiction to reopen the radiological health and safety phase of the hearing even though an initial decision had been issued on those issues, because other environ-mental issues were still before the board at the time of the l
filing of the motion to reopen.
Although the procedural context of Point Beach is somewhat more complex than this summary indicates--findings on a partial power license and later a full power. License were involved and NEPA procedures were then being superimposed on previously commenced cases--these differences do not appear from ALAB-86 to be sufficient for purposes of distin-guishing the case.
Accordingly, we can only conclude that the case does not reflect the current state of the law.
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t e and later codified in Subpart F of 10 CFR Part 2.
In such cir-cumstances, recognizing the general applicable procedures, the tribunal would not have jurisdiction of an issue after completing its consideration of that issue.
Ho< wever, as encouraged by Douglas Point, suora, and codified by 10 CFR 2.606(b)(2), in early site review cases noticed under Subpart F to 10 CFR Part 2, a licensing or appeal board or the Commission retains the authority to reopen a partial decision until a full decision on a construction p ermit has been issued by it.
We need not, fortunately, address that problem here.
Timely motions for reconsideration before the licensing board are not cut off by the issuance of a partial initial decision or full initial decision.
Indeed motions for reconsideration of initial decisions are reported in Commission precedent.
See e,._g.,
Consumers i
Power Co. (Midland, Units 1 and 2), ALAB-235, 8 AEC 645 (1974).
The same rationale in support of jur'isdiction to hear motions to reopen applies to motions to reconsider--reconsideration by a j
t licensing board of issues decided by it are not permitted for an open-ended period of time, for example after the appellate process on those issues commences.
This proceeding is unique since shortly after the partial initial decision was issued, the Appeal Board " tolled" the time for filing exceptions.
It was re-established briefly by the Appeal i
Board's unpublished order of May 30, 1980, after the Commission I
affirmed the Appeal Board's interpretation of "obviously superior" in the Sterling proceeding.b/
As mentioned, suora, 4/- Rochester Gas and Electric Corporation, et al. (Sterling Power Proj ect, Nuclear Unit No. 1, CLI-80-23, 11 NRC __ (1980).
e 4 the time was again tolled by ALAB-597 and is presently in that posture.
It is apparent from these actions that the review process of the Appeal Board is in a preliminary stage but it has been started.
In summary, it now appears to us under the guidance of the more recent Appeal Board decisions, we do not have jurisdiction in this matter.
Following the direction of the Appeal Board in ALAB-597, we now address the merits of the petition to intervene and Intervenors motion of June 6, 1980.
PETITION OF DAVID SPRINGER On April 15, 1980, Mr. David Springer filed a petition to intervene on the basis of an error in the Partial Initial Decision on alternate sites issued on February 22, 1980.
Mr. Springer alleges that the Board was willfully misled by the NRC Staff relative to the position of the State of North Carolina.
The thrust of the perition is that the Staff presented personal l
opinion of State employees as the official position of the State s
of North Carolina.
The petition incorporates by reference an earlier petition filed by Mr. Springer on April 22, 1977.1/
The petition readh ted the following:
(1)
Sixty days to file documents in support of the above allegations; EILicensing Board Order of July 15, 1977 denied the petitioner.
Affirmed by the Appeal Board in ALAB-431, 6 NRC 460 (1977).
, (2)
An evidential hearing on the above allegations ;
(3)
Petitioner be entered as an Intervenor; (4)
This Board appoint independent Staff who will competently and with integrity develop and represent the public interest; and, (5)
Failing granting of (1), (2), (3), or (4), that the Chairman, Nuclear Regulatory Commission, after due public hearing, appoint special staff to represent the public interest and remove present Staff for misrepresentation of material facts and failing to fairly and adequately, through incompetence or otherwise, represent the public interest.
The last day for filing petitions to intervene was August 19, j
1974.
The petition does not address the criteria to be met for late f U ir.g in 10 CFR 52.714(a)(1).
t The Staff responded to the petition on May 5, 1980.
The Staff opposes the intervention on the basis of lateness and lack of standing.
They refute the allegation that the Staff misled the Board relative to the position of the State of North Carolina l
on the question of once-through cooling.
The Staff urges that the petition be denied.
On May 9,1980, the Applicant stated that the petition should be denied since the basis for this petition is the same as his previously rejected petitions, there is no justification for petitioning five and one-half years late and his allegation that
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--8 Petitioner is atte=pting to intervene after the close of the evidentiary record and we think the Appeal Board has made it very clear that such is not permitted.6/
The Board was fully aware from the statement of the Assistant Attorney General, William A. Ramey, Jr., Esc., at the hearing that there would not be an " official" position of the State of North Carolina until an application was filed for once-through cooling on Lake Norman (Tr. 2956-2957).
He further stated that the North Carolina Utilities Commission granted a certificate of convenience and necessity for the Perkins' site.
He also stated that it was the opinion of the staffs of the Environmental Management Co= mission and the Water Quality Division of the Depart =ent of Natural Resources and Co== unity Development that Lake Norman is not suitable for once-through condenser cooling.
We were, therefore, well aware that until there is an application for a permit to construct once-through cooling on i
Lake Norman, there will be no " official" State position but we i
did have before us the best evidence available reflecting the deter =ination of North Carolina Utilities Commission and the i
opinion of the staffs of the relevant agencies.
We based our decision on the caly infor=ation available, furnished by a l
l credible source.
We were not misled into believing an " official" position existed on the part of the State of North Carolina.
5/ acific Gas & Electric Co. (Diablo Canyon Nuclear Power 71 ant, P
Unit 1 and 2), ALA3-583, 11 NRC __ (March 12, 1980).
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... The Petition is denied as out of time without justification, requesting relief not available to a non-party and inadequate support for allegations of misconduct.
INTERVENORS MOTION TO RECONSIDER OR REOPEN T*4E RECORD On June 6, 1980, the Intervenors in this proceeding moved for the Board to reconsider or reopen the record on alternate sites based on the reasons in the Springer petition.
The Intervenors further state reconsideration or reopening the record will not cause a delay since the Applicants have announced a significant delay ir 'he need for Perkins.
c On June 26, 1980, the Staff opposed the motion on the basis that Intervenors made no showing of legal justification pursuant to Commission regulations and decisions relative to reconsideration or reopening the record on alternate sites.
The Staff also stressed the burden which must be met to reopen a record.
The Staff also points out that Intervenors offered a witness at the hearing who advocated a Lake Norman site with once-through cooling.
The Staff took the positien that allegati.ons in the Springer peri : ion concerning the effects of Appal'achian Ecver Co. v. Train, 545 J 2nd 1351 (4th Cir. 1976), the ability of the State or EPA to grant waivers to water quality standards, or the reach of the Clean Water Act, are issues which could have been raised by Intervenors in the proceeding.
~
. The Applicant responded on June 23, 1980 by stating since Intervenors motion rests solely on the Springer petition, Applicant will not repeat the opposition to the Springer peci11on.
Applicant requests that Intervenors' motion be denied.
The burden a party has to reopen a record was clearly stated by the Appeal Board in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21-22 (1978).
We recently have had occasion to reiterate the standards for reopening a record.
Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No. 1), Alis24077 7 NRC 320, 339 (March 7,1978).
As we there scressed, the proponent of a motion to reopen bears a he,v-; burden.
The motion normally must be timely presented and addressed to a significant issue.
Moreover, if an initial decision has already been rendered on the issue, it must appear that reopening the proceeding might alter the result in some material respect.
In the case of a motion which is encimely without good cause, the movant has an even greater burden; he must demonstrate not merely that the issue is significant but, as well, that the matter is of such gravity that the public baterest demands its further exploration.
See
, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); id.,
ALAB-167, 6 AEC 1151-52 (1973)
The fact that the time for filing exceptions was tolled on the wake of the issuance of the Partial Initial Decision gave the parties a rare opportunity to file a motion to reopen or for reconsideration by the Licensing Board.
This was not done.
We have determined the Intervenors June 6, 1980, motion is unreasonably late.
We recognize the question of alternate sites is a significant issue but the specific issue of the availability of Lake Norman with once-through cooling was addressed by all e,-
. parties in the evidentiary hearing and fully considered by the Board in the Partial Initial Decision of February 22, 1980.1/
~
No new significant information hr-been presented that might alter the~ result in some material respect.
The Board has found that the Intervenors have not met the burden for reconsideration or reopening the record and the motion is denied.
It IS SO ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
,8et-t:
- 1. 4 Elizabeth S. Bowers, Chairman Dated at Bethesda, Maryland l
this 14th day of August 1980.
1/ pplicant-Dail Testimony, Tr. 3744, 45; State of North Carolina-A Raney Statement, Tr. 2955, 57; Intervenors-Pfefferkorn Statement,
Tr. 3018, Medina Testimony, p. 6 following Tr. 3436, Lipkin Testicony, pp. 6 and 7 following Tr. 3436; and the Staff Panel Testimony
- p. 8 following Tr. 3049.
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