ML19331E300

Memorandum of Law in Support of Encl Findings of Fact & Conclusions of Law Filed in Response to CA Energy Commission 800804 Findings.Urges Issuance of Order to Show Cause If Revision of Commission 800507 Order Warranted

ML19331E300
Person / Time
Site:	Rancho Seco
Issue date:	09/05/1980
From:	Baxter T SACRAMENTO MUNICIPAL UTILITY DISTRICT, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19331E301	List: ML19331E300
References
ISSUANCES-OM, NUDOCS 8009090784
Download: ML19331E300 (6)

Text

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September 5, 1 D

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARQ3

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In the Matter of

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SACRAMENTO MUNICIPAL UTILITY DISTRICT

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Docket No. 50-3

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(Rancho Seco Nuclear Generating

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Station)

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LICENSEE'S MEMORANDUM OF LAW IN ASSOCIATION WITH ITS REPLY PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW None of the participants in this hearing asserted that the Nuclear Regulatory Commission's ("the Commission's") Order of May 7, 1979, in this docket was inadequate or required modification -- until the California Energy Commission

(" CEC"),

participating as the representative of an interested state pursuant to 10 C.F.R.

S 2. 715 (c), filed its proposed findings of fact and conclusions of law on August 4, 1980.

Because Licensee has not proposed any modifications to the Commission's order, it has been neither necessary nor appropriate until now for Licensee to present. its views on the legal basis for any action by this Board if it should determine that the Commis-sion's Order was insufficient.

It is Licensee's firmly held view, apparently shared 1/

by the.NRC Staff, that the record before the Board does not

-support the findings, advanced by CEC, that the Commission's 1/

See NRC Staff's Proposed Findings of Fact and Conclusions of' Law in the Form'of an Initial Decision, August 22, 1980.

8009.09078T g

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& ' Order is, insufficient and requires eighteen additional actions oor modifications to be imposed upon Licensee in order to protect the health and safety of the publ c.

Consequently, we believe i

that the Board need not reach and decide the legal issues raised in this. memorandum._ Nevertheless, in view of CEC's proposed

- findings of fact and conclusions of law, Licensee cannot ignore the possibility that the Board will disagree with both Licensee and the NRC Staff, and will find for CEC as to one or more of the eighteen proposed modifications.

Accordingly, Licensee submits the following memorandum of law.

The Commission's Orders of May 7 and June 21, 1979, which gave rise to this proceeding, did not advise the Board on the scope of its authority with respect to any possible revisions to the May 7 Order, or on the appropriate procedure to~be.followed if the Board found that revisions were necessary.

There are principles of due process and fairness to Licensee which should govern the procedure followed by the Board if it decides to recommend revision to the Commission's Order.

Licensee Sacramento Municipal Utility District did

- not request a hearing on, or challenge in any other way, the Commission's Order of May.7, 1979, which directed a temporary 4

_ shutdown ~of_the Rancho Secc~ Nuclear Generating Station and the implementation of specified short-term actions and long-term modificationsfat the facility.

Licensee has proceeded tq,cor. ply

_ with.the provisions of the Order while the Order's adequacy wasz the Jsubject of a lengthy adjudicatory proceeding before

.this AtomicESafety and Licensing Board.

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. All of the parties who requested the hearing.and advanced contentions challenging the Commission's Order with-drew from the proceeding prior to the start of the hearing.

Consequently, the matters heard were:

(a) 18 Licensing Board questions; (b) 4 contentions of a withdrawn intervenor (leaving no one to come forward with supportive evidence as directed by

'the Board) ; and (c).7 " issues," in the form of questions, raised

~by CEC, but on which CEC took no position.

Licensee was not confronted at any time during the hearing with an assertion by a party or the Board that the Commission's Order.of May 7, 1979,..was insufficient, or that any particular amendment of the' order would be proposed depending on the answers to the Board and CEO's questions.

Consequently, it is Licensee's position that it was not put on notice of, or given the opportunity to contest, the additional modifications and 2/

actions now proposed by the California Energy Commission.-

We do not fault CEC or the Board for this situation.

CEC acted within its rights under 10 C.F.R.

S 2.715 (c) in de-clining to take pcsitions, and the Board could hardly prevent the withdrawal of the intervenors.

Rather, this situation has been created by the unique coupling of a novel admin-istrativeisetting established by the Commission and the

' unforeseen actions of the intervening parties who requested

.the hearing.

2/ - Possible' exceptions:to this argument are Issues CEC 5-1 and 5-2:which,.while questions, address specific facility modifications..To some extent Licensee was put on notice Lof, the consequences of a "yes" or "no" answer ito these questions.

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-4 The Commission's Rules of Practice have particular procedures which apply to proceedings to modify, suspend or

. revoke.a license, to. impose civil penalties, and "to impose requirements-by order."

See Subpart B to 10 C.F.R. Part 2.

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lui order imposing requirements on a licensee cannot be imposed without' informing ~the licensee of the particular violation alleged, 10 C.F.R.

S ' 2. 201(a), and, whether or not a viola-tion is alleged, of the action proposed to be taken.

10 C.F.R.

S 2.202 (a) (1).

Furthermore, once the licensee is notified of this action, it is entitled to demand a hearing on the proposed action.

10 C.F.R. S 2.202 (a) (3).

The licensee is also entitled to know what it is charged with and to be presented with:the evidence against it before it is called upon to respond with evidence in its own behalf.

Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-315, 3 N.R.C. 101, 110 (1976).

The only exceptions to these requirements involve situations where the public health, safety or interest requires the Commission or its staff to take immediate action.

See 10 C.F.R.

SS 2.202 (f), 2.204.

Similarly, in other NRC proceedings, notice of the hearing is required, 10 C.F.R.

S 2.703, followed by a specification of the matters in controversy.

10 C.F.R.

S S 2. 714 (b), 2.752.

1The Commission's Order of May 7, 1979. while not annorder to show cause or a notice of violation, dia present Licensee with the specific modifications it was directed uto1 implement,1and 'provided Licensee with the opportunity to contest those requirements.

Now, however,. CEC is proposing D

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that'18 new requirements be added.to the Commission's Order, without first.having provided Licensee with.the' opportunity to contest them.

Licensee's: rights under the Commission's Rules of Practice essentially flow from the Administrative Procedure Act, 5 U.S.C.

S 554 (b) (3), which sets forth one of the funda-mentalfdue process rights to which' individuals are entitled

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in agency proceedings.

In Hess & Clark, Division of Rhodia,

'Inc. v. Food & Drug Administration, 495 F.2d 975, 983 (D.C.

Cir. 1974), wherein the Court of Appeals applied this principle of administrative law in rejecting the-summary disposition 4

procedure adopted by.the FDA, the Court explained:

An agency may not validly take action against an individual without a hearing unless its notice to the individual of the adverse action proposed to be taken against him specifies the nature of the facts.and evidence on which the agency proposes to take action.

Such notice enables -he affected party to prepare an informed response which places all the relevant data before the agency.

In Hess & Clark, the Court agreed with petitioners that the i

FDA's notifying petitioners of the possibility that approval of certain of-petitioners' activities would be withdrawn under 1-1 certain theoretical conditions did not. constitute sufficient notice.

Petitioners were entitled to know the specific bases for the threatened withdrawal and given an oppo_-tunity to respond to these bases before the agency could withdraw its previously-given approval.

It is Licensee's position, then, that if this Board's findings of fact warrant a revision to the Commission's May 7

~6-Order'in the form of additional long-term modifications, the appropriate procedure for the ' Board to follow is to conclude its initial decision with a recommendation that the' Commission-issue an order to show cause, 'with the opportunity for Licensee

-to demand a hearing, as to why the specified modification (s) should not also be required in order to provide' reasonable assurance that Rancho Seco will respond safety to feedwater transients.-3/

Respectfully submitted, SEAW, PITTMAN, POTTS & TROWBRIDGE W~. -

A.

Thomas A.

Baxter Counsel for Licensee 1800 M Street, N.W.

Washington, D.C.

20036 (202) 331-4100 Dated:

September 5, 1980 3/ _The Commission at least hinted, in its Order of June 21, 1979, that further enforcement action might be the appropriate route.

See-9 N.R.C.

680, 681L(1979).

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