ML19340A283
| ML19340A283 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 08/26/1971 |
| From: | Woodard W Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8003050684 | |
| Download: ML19340A283 (13) | |
Text
.
UNITED STATES OF AffLHICA ATOMIC ENERGY COMtti!;;; ION ATOMIC SAFETY AND LICENSING APPEAL BOARD:
Algie A. Wells, Chairman Dr. John H. Buck Dr. Lawrence R. Quarles IN *INE MATTER OF
)
)
TOLEDO EDISON COMPANY AND
)
CLEVELAND ELECTRIC ILLUMINATING COMPANY
)
)
DOCKET NO. 50-346 (Davia-Besse Nuclear Power Station)
)
)
)
)
DECISION On March 23, 1971, the Atomic Safety and Licensing Boa d r convened to preside in this proceeding rendered an inicial decision authorizing the issuance of a construction permit to the Tol d e o Edison Co. and the Cleveland Electric Illuminating Co. (applicants) for a pressurized water nuclear power reactor.
The new facility, designed to operare at 2633 MW(thermal), with ultimate capability of produci ng 2772 MW(thermal),
is to be located on the south shore of Lake Erie i 20 miles n Ottawa County, Ohio, east of Toledo.
Exceptions to the initial decision were filed sepa rately by Coalition for Safe Nuclear Power (Coalition)
, and by Living in a Finer Environment and William E. Reany (jointly referred to as LIFE), all of whom were intervenora in the proceeding before the Licensi ng Board.
The applicant has filed a response to the exceptions of both the Coalition and - LIFE, and the regulatory ataff has fil d e
separate responses to these exceptions.
. -. -., ~ ~..-
.. = = ~
~
8ooa o5of gy C
/
1 ;
t The Appeal Board has considered the exceptions to the initial i
decision which have been filed.
In its brief in support of its excep-i
}
tions, LIFE has characterized all of its exceptions as being based on the Licensing Board's alleged failure to comply with requirements of 1
the National Environmental Policy Act of 1969 (NEPA). The first five I
of the six exceptions asserted by the Coalition also relate to the i
Board's disposition of questions arising as a result of NEPA.
The exceptions involving NEPA raise the question of the applica-bility to this proceeding of the recent holding of the United States j
Court of Appeals for the District of Columbia Circuit in Calvert Cliffs'
)
Coordinating Consnittee Inc., et al. v. United States Atomic Energy j
Commission, et al. (July 23,1971). As the Appeal Board has recently 1_/
indicated, it is inappropriate, in light of the announced intention of the Commission to issue within the near future a revision of 10 CFR Part 50, Appendix "D",
to take action at this time with respect to the i
exceptions concerning environmental matters.
The questions concerning environmental matters will, of course, be subject to whatever rules the 5
Commission issues on this subject.
i
\\
l 1/
Memorandum and Order, August 16, 1971, In the Matter of Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), Docket No. 50-323; Memorandum and Order, August 18, 1971, In the Matter of Wisconsin Electric Power Co. and Wisconsin-Michigan Power Co.
4 (Foint Beach Nuclear Plant, Unit 2),. Docket No. 50-301.
i 6
i 4
. -~
r-m,.
-p,,.
=yn
~
vmv
+
t-
'4 W
The final exception of the Coaliti on asserts that Board erred in refusing to allow th the Licensing with respect to the safety procedur e Coalition to present eviden l
port radioactive es the applicant will use to trans-l material from its proposed plant l
it should be pointed out that neith location.
Fi rs t,
I operating license for this plant would ier the construction per I
i of radioactive material, including s n itself authorize the shipment as a separate matter, an additional pent fuel, from the plant.
- Secondly, tion of radioactive materials topermit or permits for transporta-from the Department of Transportatioor from the plant must be procedures of Parts n, in accordance with the safety 30, 40, 70 Thus, contentions and evidence with, and 71 of the Commissio governing transportation of radioactiverespect to the safety pro jurisdiction of the Licensing Board i materials vere not within the n this proceeding.
we conclude that the Licensing Board did Accordingly, in rejecting the evidence proffer d b not exceed its discretion 2/
e question.
y the Coalition on this For the foregoing reasons, the exce ti i
p Coalition are hereby denied.
ons filed by LIFE and the On February 18, 1971, the Atomic Saf this proceeding referred the foll ety and Licensing Board in the Appeal Board:
owing question for determination by 2/
See our Memorandum and Order
. Wisconsin' Electric Power Co. and Wisconsin-Mich
, August 18, 1971, In the Matter of gan Power Co., sup?
wet e& -=
M.
p m
- h
"In view of the paramount interest in conducting a fair and orderly proceeding, whether under the circum-stances of this case the definition of the Board's authority, as set forth in its order, is compatible legally with authority granted to the Director of Regula tion."
This referral presents the question of whether the Director of Regulation is authorized to grant, after the hearing hss commenced, an exemption permitting an applicant to perform certain construction work.
The question was referred to the Appeal Board following a Licensing Board order to the Director of Regulation (as a party) not to issue an amendment, as sought by applicant's letter of January 7, 1971, al to the previously granted exemption until the Board had filed its initial decision.
The Director of Regulation took no action to grant such an amendment to the exemption.
The Appeal Board has considered the question referred by the Licensing Board, including the reasons set forth by the Licensing Board for reaching its conclusion, the motion and legal memorandum filed by LIFE on this question, the affidavit filed by the applicant, and the oral argument as reflected in the transcript.
The ultimate resolution of the question depends upon the scope of the Commission's delegations of authority to the Director of Regulation and the Licensing l
3/
The original exemption was granted by the Director of Regulation j
pursuant to 10 CFR 550.10(b) on September 10, 1970, prior to the designation of the Licensing Board in this proceeding.
The validity or appropriateness of the original exemption is not the subject of l
the referred question, and nothing in this decision should be con-
[
strued as affecting or bearing on that exemption.
l 1
l o'%m % w.E I
v w
n
4/
Boa rd.
We appreciate the care with which the Licensing Board has construed applicable Commission regulations and delegations of authority, some of which may appear to be inconsistent eith others.
As a result of our review, however, we conclude that a more persuasive construction of the regulations, and one which we believe represents the intent of the Commission, as we infer that intent from the manner in which exemptions have been handled for several years, is that the Commission has not delegated to Licensing Boards the authority to grant or take action with respect to exemptions, but instead has generally conferred such authority on the Director of Regulation.
In the context of this case, we note first that the question became moot on March 23, 1971, with the issuence of the construction permit.
But we also note that the Director of Regulation deferred action on the requested amendment to the exemption. Under the circumstances of this El case, we view that result as proper.
We note that the Commission indicated its concurrence in this result in the Chairman's letter of March 18, 1971, to Congressman John D. Dingell, which has been included in the record of this proceeding.
Finally, we believe that as a general matter, exemptions have not been granted after hearingr$ have commenced.
4/
See, in particular, AEC Phnual Chapter Sections 0103-023h and 0103-024, and 10 CFR 552.717(b), 2.718, and 50.12.
5/
In this connection we observe dat the Licensing Board might have been saved a great deal of time in its efforts to harmonize the various provisions of the Commission's regulations, and the public would have better understood the Commission's position in regard to exemptions, if the regulatory staff had informed the Licensing Board that under the circumstances of this case action on the request for
-exemption had been deferred.
m
e In the absence of further review by the Connission on its os u notieni act ion pursunnt to 10 CFR $ 2.786, this decision will constitute the finni SCP 3.0, 1971 t
of the Consnission on It is so ORDERED.
By the Atomte Safety nnd I.Leonsluy, Appani linard N
Y0LJ M~7-6.w!
L.i11 Lam L. t!oodard Assistant Executive Secreta ry N/ d,
'//
Dated:
/
/
9 i
?
~.- ~.
'--+m-s 'eMy
^ *"
T t
,7
, n'r r
+
J UNITED STATES OF AMERICA G
ATOMIC ENERGY COMMISSION N
b 6-GgP In the Matter of 4,
J
'IOLEDO EDISON COMPANY, ET AL.
)
Docket No. 50-3 6
'S
/
4 (Davis-Besse Nuclear Power
)
Station Unit 1)
)
b j
CERTIFICATE OF SERVICE I hereby certify that copies of the DECISION issued by the Atomic Safety and Licensing Appeal Board <Mted August 26, 1971 in the captioned matter have been served on the following oy deposit in the United States mail, first class or air mail, this 27th day of August 1971:
Walter T. Skallerup, Jr., Esq.
Leslie Henry, Esq.
Chairman, Atomic Safety and Fuller, Seney, Henry & Hodge Licensing Board 800 Owens-Illinois Building Cox, Iangford & Brown 405 Madison Avenue 1521 New Hampshire Avenue, N. W.
Toledo, Ohio 4360h Washington, D. C. 20036 Wilson W. Snyder, Esq.
Dr. Walter H. Jordan Fuller, Seney, Henry & Hodge Oax Ridge National Laboratory 800 Owens-Illinois Building P. O. Box X A05 Madison Avenue Oak Ridge, Tennessee 37830 Toledo, Ohio 43 04 6
g Dr. Charles E. Winters Donald H. Hauser, Esq.
8800 Fernwood Road The Cleveland Electric Bethesda, Mary. Land 20034 Illuminating Company P. O. Box 5000 Dr. John C. Geyer, Chairman Cleveland, Ohio h4101 Department of Geography and Environmental Engineering Mr. Glenn J. Sampson, Vice The Johns Hopkins University President - Power Baltimore, Maryland 21218 The Toledo Edison Company 420 Madison Avenue Thomas F. Engelhardt, Esq.
Toledo, Ohio 43601 Paul W. Wallig, Esq.
Regulatory Staff Counsel Honorable Harry R. Johnson U. S. Atomic Energy Commission President, Board of County Washington, D. C. 20545 Commissioners Ottava County Courthouse Gerald Charnoff, Esq.
Port Clinton, Ohio 4 452 3
Shaw, Pittman, Potts, Trowbridge and Madden 910 17th Street, N. W.
Washington, D. C. 20006 c
/
t V
4 50-3 6 page 2 Mr. Roger B. Williams
- Mr. Glenn H. Lau Atomic Energy Coordinator Rt.1, Box 126
- State of Ohio Development-Oak Harbor, Ohio 43h49
' Department 65 South Front Street James L. Knight, Esq.
P. O. Box 1001-633 National Bank Building Columbus, Ohio 43215 Toledo, Ohio 43 04 6
Mrs. Evelyn Stebbins, Chairman Professor,Irvin I. Oster Coalition for Safe Nuclear Power Professor of Biology and Anatomy 705 Elmwood Road Bowling Green State University Rocky River, Ohio 44 H6 Bowling Green, Ohio 43 03 4
Russen Z. Baron, Esq.
Miss Vicki Evans Brannon, Ticktin, Baron LIFE
& Mancini' Box 15, University Hall 930 Keith Building Bowling Green State University Cleveland, Ohio 44115 Bowling Green, Ohio 4 403 4 '
3 Beatrice K. Bleicher, Esq.
Jercne S. Kalur, Esq.
Coburn, Smith, Rohrbacher & Gibson Jamison, Ulrich, Burkhalter 7th Floor, Toledo Trust Building
& Hesser 6
Toledo, Ohio 43 04 1425 national City Bank Building Cleveland, Ohio 44114 t
Information. copies to:
Dr. Eugene V. Perrin Dr. Roland Davis l
Western Reserve University Ohio Au8ubon Society Cleveland, Ohio 44106 Lakewood, Ohio 44107 Mr. Salvadore 01alde Iarry L. Noblitt, Esq., Associate P. O. Box 144 Iovell S. Petersen, Esq.
Findlay, Ohio 45840 122 West Second Street Port Clinton, Ohio 43452 O
--m-.-
A-,-
- w. -
,-o--"e+
m
" ~
g 4
50-3 6 page 3 Professor Robert F. Redmond Mr. Terri Piente Chairman, Nuclear Engineering 6807 Wectlake Ohio State University Parma, Ohio 44129 Columbus, Ohio 4 210 3
Mrs. Charles Devitz Professor Donald D. Glover Route 1, Box 109 Chaiman, Mechanical Engineering Oak Harbor, Ohio 4 4h9 Department 3
Ohio State University-Mr. John E. Cook, Vice President Columbus, Ohio 4 210 Sand Beach Association 3
2239 Densmore Drive Dr. Owen E.-Buxton, Associate Toledo, Ohio 42606 Professor Mechanical Engineering Department Miss Jean Fenton Finkel Ohio State University Finkel & Finkel Columbus, Ohio 4 210 3
Masonic Building Lorain, Ohio kh052 Mrs. Lillian Grieger b
1618 Grantwood Drive Mr. R. Powers Luse Parma, Ohio 44134 Executive Secretary Ohio Municipal Electric
~Mr. Richard E. Webb 1612 Andover Road Association, Inc.
319 Water Street Columbus, Ohio 4 212 3
North Baltimore, Ohio 45872 Mr. Lavrence J. Lucas 841 Madison Street Mr. Burt G. Brickner, Executive Secretary Port Clinton, Ohio 4 452 The Izaak walton League of 3
America, Ohio Division Mrs. Kathleen Pausic P. O. Box 724 P. O. Box 332 Bowling Green, Ohio 4 402 Tiffin, Ohio h4883 3
Miss Nancy E. Harris Mr. Thomas Richard Clink 3701 Tolland Road R.F.D. No. 1 5927 U. S. Route 6 Shaker Heights, Ohio 44122 Helena, Ohio 4 4 5 33 Miss June M. Brown, Chairman Power Generating Subcommittee Mr. James C. Wynd Radiological Health Unit Imague of Women Voters, Iake Erie Basin Committee Division of Engineering 3302 Brantford Road Burr.au of Environmental Health Toledo, Ohio 4 606 3
Ohio Department of Health 450 East Town Street Council Columbus, Ohio 4 216 Village of Oak Harbor 3
Oak Harbor, Ohio 43449 e
w as e
y
50-346 page 4 Mr. Charles J. Gulas Mrs. John C. Croxton 9714 Easton Avenue 2811 H. Park Boulevard Cleveland, Ohio M 10h Cleveland Heights, Ohio 44 H 8 Honorable Jackson E. Betts Mr. William Reilly House of Representatives Council on Environmental Quality Washington, D. C. 20515 722 Jackson Place, N. W.
Washington, D. C. 20006 Mr. Stephen Goldfarb 2589 Overlook Road, No. 10 Honorable William B. Saxbc Cleveland Heights, Ohio M 106 United States Senate Washington, D. C. 20510 Mr. Bruce M. Hankins 322 E. Broadway E. W. Arnold, M. D.
Maumee, Ohio h3537 Director of Health Ohio Department of Health Honorable William G. Milliken 450 East Town Street Governor, State of Michigan Columbus, Ohio 4 216 3
Iansing, Michigan 48914 Mr. William O. Walker, Director Honorable Thomas L. Ashley Ohio Department of Industrial House of Representatives Relations Washington, D. C. 20510 851 Ohio Department Building Columbus, Ohio 4 125 3
Wayne M. Harris, Esq.
220-233 Powers Building Mrs. 'Ihomas F. Walker Rochester, New York 14614 619 Jackson Drive Port Clinton, Ohio 4 452 3
Mr. Benjamin B. Sheerer Rudd, Miller, Sheerer and Commissioner Iqbarger Federal Water Quality Public Square Building Administration 33 Public Square Washington, D. C. 20242 Cleveland, Ohio M 113 Attention: Basin Planning Branch Mr. Horace R. Collins Ob*? Department of Natural Dr. D. G. Hurst, President Luources.
Atomic Energy Control Board 1207 Grandview Avenue P. O. Box 1046 Columbus, Ohio 43212 Ottawa, Ontario Canada Miss Grace Y. Visscher 2859 Scarborough Road Dr. David Gitlin Cleveland Heights, Ohio MH8 Westgate Medical A-ts Square 20800 Westgate Mr. Dave Daubel, Area Editor Fairview Park, Ohio M 126 The Fremont News-Messenger
.107 South Arch Street Mr. Anthony Tekancie Fremont,~0hio 4 420 12238 Blazey Road 3
Cleveland, Ohio 44136 i
d
a 50-346 page 5 Mr. Howard M. Metzenbaum Honorable Charles A. Vanik 700 Union Commerce Building House of Representatives Cleveland, Ohio M 101 Washington, D. C. 20515 Mr. George N. Kundtz Honorable Robert J. Dawson Nuclear Comittee Clerk of Council Citizens for Clean Air and City of Euclid Water, Inc.
585-East 222nd Street 13167 Westchester Trail Euclid, Ohio M123 Chesterland, Ohio M026 Mr. and Mrs. Earl R. Mencel Mrs. Ann Hadlock 12906 Southern Avenue 11333 Prospect Road Garfield. Heights, Ohio M125 Strongsville, Ohio M 136 Mrs. Sue Tecancic 1
Mrs. Louise Becka 12238 Blazey Road 20h67 Westwood Drive Strongsville, Ohio M 136 Strongsville, Ohio M 136 Miss Alvina Littlefield Director.
1541 Wilderness Road Ida Rupp Public Library Maumee, Ohio 4 537 3
Port Clinton, Ohio 4 452 3
Mr. David A. Huffman Miss Esther Beck-26103 Royalton Road 3115 Parkwood Avenue Columbia Station, Ohio M028 4 610 l
Toledo, Ohio 3
Mrs. Jane Shirley Mr. & Mrs. Ronald Schiming 6821 Taylorsville Road R. R. Ro. 3 Dayton, Ohto h5424 Oak Harbor, Ohio 4 M9 3
Mr. Robert Sheridan Miss Victoria Benedetto 22551 Arms Avenue 4200 Westbrook Road Euclid, Ohio M ll7 Cleveland, Ohio MlM Miss Coletta Barrett Miss Dorothy Prokop 6
1310 Gainsboro Avenue 1210 Highland Avenue East Cleveland, Ohio Mll2 Brunsvick, Ohio M 212 Mr. Michael Kovack Mr. Emil Giorgione 1760 Kapel Drive 15929 Parklawn Avenue Euclid, Ohio M 117 Cleveland, Ohio M130 Mr. Michael P. Medine I
Mr. Lawrence Brown 10720 Richard Drive 6
'R.F.D. 1, Box 3 0 Parma, Ohio M129 Oak Harbor, Ohio 43M 9 4
i
'J
-t J
h 50-3 6 page /i Mr. Dennis R. Elving -
!!ico Mildred Weitzel 319 Ottava Street 23925 Inke Road Oak Ilarbor, Ohio 43449-Loy village, oht.o hhlho Mr. & Mrs. Forest J. Svope Mrs. Don Bright Route 3, Box 265 1050 Lyn Road Oak Harbor, Ohio 4 449 Lovling Green, Ohio h 402 3
3
-Mrs. Scott J. Crozier Honorable John D. Dingell hh3 Richmond Park, W.
House of Representatives
~ Rich =ond Heights, Ohio 4h143 Washington, D. C. 20515
--Mr. A. Amsterdam Miss Naomi R. Greenfield f
13+5 Brookline 322 N. Main Street S. Euclid, Ohio h4121 Povling Green, Ohio h3 02 4
Mr. John Markuski Mr. Jim Green 870h Bancroft R. R. no.1 Cleveland, Ohio h4105 Oak Ilarbor, Ohio h hh9 3
.Mr. John Bagi Mrs. Narda Elwing 2060 Revely Avenue 319 Ottava Street Lakewood, Ohio 44107 Oak Harbor, Ohio 43449 Mrs. Robert J. Maire Miss Michelle C. Novton 20820 Fuller Avenue h41 Victoria Place Euclid, Ohio h4123 Toledo, Ohio 4 610 3
Mr. Mike Ianier Miss Joni Kerchner 6430 Syracuse Road 4464 E. Cliff Road Mentos, Ohio hh060 Port Clinton, Ohio 43h52 f^
f f5h rp e,7 hb 2/ pp Office of the Secretary of the Coussission i'
-cc: Mr. Skallerup
-Mr.Engelhardt Mr. -. Yore
.H. Steele H. Smith b
.... ~.
...h'