ML19340D200
| ML19340D200 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 12/12/1980 |
| From: | Stephen Burns, Cyr K NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-618, ISSUANCES-SC, NUDOCS 8012290289 | |
| Download: ML19340D200 (13) | |
Text
'
9 12/12/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COM!11SSION BEFORE THE COMMISSION In the Matter of
)
)
DAIRYLAND POWER COOPERATIVE
)
Docket No. 50-409-SC (La Crosse Boiling Water Reactor)
)
(Order to Show Cause)
NRC STAFF'S AN'SWER OPPOSING LICENSEE'S P_ETITION FOR REVIEW 0F ALAB-618 On December 1,1980, the Dairyland Power Cooperative (DPC or licensee) 3 petitioned the Commission for review of the Atomic Safety and Licensing Appeal Board's Memorandum and Order (ALAB-618, Nov.17,1980) on a question certified to it by the Licensing Board in this show-cause proceeding.
Because the Commission's rules do not authorize the filing of petitions for review of Appeal Board decisions on certified questions, the licensee's petition should be denied.
10 C.F.R. 2.786(b)(1). Moreover, the matters decided by the Appeal Board do not constitute questions of " exceptional legal or policy importance" such that the Commission should exercise its authority to review the Appeal Board's decision sua sponte.
I.
PROCEDURAL SETTING On February 25, 1980, the Director of Nuclear Reactor Regulation ordered the licensee to show cause under 10 C.F.R. 2.202 why it should not be required to design and install a site dewatering system at the site of the La Cmsse Boiling Water Reactor (LACBWR) to preclude the effects of soil liquefaction ro Q ToI)6 7A I J
in the event an earthquake with a peak acceleration of 0.12g occurred. 45 Fed. Reg.13,850 (March 3,1980). The Order to Show Cause provided an opportunity for the licensee and other persons with an interest affected by the order to request a hearing. The Order to Show Cause further specified that a hearing would be limited to consideration of these issues:
"(1) Whether the licensee should submit a detailed design proposal for a site dewatering system; and (2) Whether the license should make operational such a dewatering system as soon as possible after NRC approval of the system, but no later than February 24, 1981, or place the LACBWR in a safe cold shutdown condition." 45 Fed. Reg. at 13,852.
On July 29, 1980, the Commission designated an Atomic Safety and Licensing I
Board to consider and rule on requests for a hearing-and, if a hearing was required, to conduct such hearing solely on the issues identified in the Order to Show Cause. 45 Fed. Reg. 52,290 (Aug. 6,1980). At the prehearing conference and in its subsequent order the Licensing Board detemined that,
~
though the NRC Staff'and the licensee were both of the view that the licensee had shown cause, the Coulee Rbgion Energy Coalition and Frederick M. Olsen III had nevertheless established rights to a hearing on the Order to Show Cause.
Prehearing Conference Order Granting Requests for a Hearing and Certifying Question to the Appeal Board, LBP-80-26, at 3,12 (Sept. 30, 1980) (hereirafter Prehearing Conference Order). During the discussion of If The Coulee Region Enenjy Coalition, Frederick M. Olsen III, and the licensee filed requests for a hearing on the Order to Show Cause. The licensee's request was a contingent request for a hearing in the event that the Director of NRR found that the licensee had not shown good cause in its answer to the order.
The Director of NRR has detemined that the licensee has shown good cause.
I
3-the matters to be heard, the Licensing Board raised the question of the magnitude of the safe shutdown earthquake as an issue which it thought should be litigated in the proceeding.
In the Board's view, this issue was within the scope of the issues set forth in the Order to Show Cause and, since an SSE had never been established for the LACBWR site, consideration of the seismic issue was particularly appropriate. Prehearing Conference Order at 15, 19-20.
Because the licensee (and the f1RC Staff, at that time) objected to the Board's treatment of the 0.12g ground acceleration value as anything other than a "given" in the proceeding, the Licensing Board certified under 10 C.F.R. 2.718(i) to the Appeal Board the question of its authority to consider the magnitude of seismic hazard at the LACBWR site.
In its Order of October 1, 1980, the Appeal Board accepted certification. The licensee argued that the Licensing Board did not have the authority to consider the magnitude of seismic hazard at La Crosse. Although the Staff believes the 0.12g value is adequate and conservative in its application in this proceeding, the Staff advised the Appeal Board that the magnitude of seismic hazard should be considered to be fairly within the scope of the esscas set for hearing.
In ALAB-618 (Nov.17,1980), the Appeal Board agreed with the Staff's view of the scope of the proceeding.
In sum, the Appeal Board found that, since no specific ground acceleration value was mentioned in the statement of issues for hearing, the Order to Shaw Cause and the Commission's July 29th Order do not foreclose examinat ;n of the 0.12g value in any hearing that might be held on the need for a site dewatering system. Although it concluded that the Licensing Board has authority to inquire into the extent
[
of seismic hazard, the Appeal Board found that such an inquiry must "be conducted in the context of the appropriateness of the precise remedy pre-scribed in the sht,w-cause order: the design and installation of a site dewatering system". ALAB-618 at 12.
II.
STANDARD FOR COMMISSION REVIEW 0F INTERLOCUTORY DECISIONS The Appeal Board's decision in ALAB-618 was on an interlocutory ques-tion certified to it by the Licensing Board under 10 C.F.R. 2.718(1).
Under 10 C.F.R. 2.786(b)(1), the Commission will not entertain petitions for review of decisions on certification under 10 C.F.R. 2.718(i).
Pacific Gas
& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-77-23, 6NRC455(1977); see also Offshore Power Systems (Floating Nuclear Power Plants), ALAB-500, 8 NRC 323, 325 (1978). On this basis alore the Commis-sion should deny the licensee's petition for review.
The Staff recognizes, however, that the Commission always retains the authority to review sua sponte decisions of the Appeal Board.10 C.F.R. 2.786(a). The action of taking review, as the licensee asks here, of an interlocutory decision unanimously reached by two lower tribunals on a single aspect of a proceeding is not lightly taken.
Such action is highly unusual and, under the standard set by the Comission, is reserved for cases "of exceptional legal or policy importance".
10 C.F.R. 2.786(a) (emphasis added).
For the reasons stated below, the decision in ALAB-618 does not raise matters of such exceptional legal or policy importance that the Comission's discretionary sua sponte review is warranted.
III. THE APPEAL BOARD'S DECISION WAS CORRECT AS A MATTER OF LAW AND POLICY A.
The Order to Show Cause and the Comission's July 29th Order Do Not Preclude Consideration of Seismic Hazard in this Proceeding At the heart of the present controversy is the question whether the statement of issues in the Order to Show Cause, which the Commission then delegated the Licensing Board to hear, pemit examination of the extent of seismic hazard as a basis for detemining if the licensee should design and ins tall a site dewatering system.
Both the NRC Staff and the licensee agree that the Licensing Board holds only such authority as the Commission has conferred on it.U The matters which may be litigated in an enforcement proceeding must be fairly within the scope of the issues posed to the Board by the Commission in the context of the order which bears on the proceeding.E The Order to Show Cause (and the Comission's July 29th delegation to the Board) neither specifically included nor specifically excludod seismic issues from consideration in this show-cause proceeding. The licensee does not dispute that there is a nexus between seismic hazard at La Crosse and the detemination whether a site dewatering system is necessary. As the Appeal Board explained, the answer to the question of the need for the dewatering system " depends on the liquefaction potential at La Crosse, which l
l y
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4),
CLI-80-12,11 NRC 514, 516-17 (1980).
y See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, ITnTts 1 & 2), CLI-80-12,11 NRC 438, 441-42 (1980); see also Union Elec-tric Co. (Callaway Plant, Units 182), LBP-78-31, 8 NW3W370-71 (1978),
aff'd, ALAB-527, 9 NRC 126 (1979).
. i j
in turn, hinges upon the extent of the seismic hazard (i.e., the amount of the ground acceleration which might be experienced at the site were the SSE tooccur).*U The licensee misapprehends the Director's authority once a request for hearing has been made and referred to one of the Commission's adjudicatory bodies. Although the Commission has vested the Director with the authority for setting the bounds of proceedings under 10 C.F.R. 2.202, the Director is not empowered to teminate the show-cause proceeding in instances where there are outstanding requests for a hearing.E If, as in this proceeding, other parties have established a right to a hearing, the Director's finding that the licensee has shown goed cause is subject to independent examination at hearing. The Licensing Board must examine " thoroughly and carefully" the critical safety issues before it.O The Staff's views must pass the same scrutiny as those of other parties to the proceeding U In this proceeding, the 0.12g value was one of the premises for the Director's issuance of the Order to Show Cause in the first instance, as well as for the later detemination that the licensee had shown good y
ALAB-618 at 9-10.
y See Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-73-38, 6 AEC TD82,1083 (1973).
y See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1&2), ALAB-298, 2 NRC 730, 737 (1975).
l 7f Consolidated Edison Co. (Indiana Point Units 1-3), ALAB-304, 3 NRC 1, 6 (1976).
i L
cause under the order.U As both the Licensing Board and the Appeal Board pointed out, a specific safe shutdown earthquake with a corresponding peak ground acceleration value has never been fomally established for the La Crosse site.U Because both the Staff's and the licensee's judgnent that a dewatering system need not be installed at the site is premised, in part, on the belief that 0.129 is a realistic estimate of the seismic hazard at the 1
La Crosse site, it is unreasonable to restrict the Board's inquiry into this prenise, particularly when the seismic hazard has not been conclusively established.
In these circumstances, the Appeal Board's reading of the issues in the Order to Show Cause and the Comission's July 29th order is eminently reason-able: it was not the " intent to foreclose examination of the validity of that prenise in any hearing which might ultimately be held on the need for a site dewatering system to obviate liquefaction".EI The licensee has not y
See Order to Show Cause, 45 Fed. Reg. at 13,850 & n.1; Letter from H. Denton (NRR) to F. Linder (DPC) (Aug. 29,1980), enclosing Safety Evaluation by the Office of Nuclear Reactor Regulation Relating to Liquefaction Potential at the La Crosse Site, 6 3, at 2-3.
The latter document was filed before the Licensing Board with the "NRC Staff's Response to Requests for Hearing" (Aug. 29,1980).
9/
ALAB-618, at 4,10; Prehearing Conference Order at 15. As explained in the Staff's brief to the Appeal Board (at 9-10, nn. 23-27), the licensee received its provisional operating license for the LACBWR before 10 C.F.R. Part 100 was promulgated.
The seismic hazard at La Crosse is currently being re-evaluated by the Staff as part of the Systematic Evaluation Program.
Based on the Staff's preliminary review, a 0.1g value may be an appropriate value for the La Crosse site.
See Letter from D. Eisenhut (NRR) to F. Linder (DPC), Attachments 1 & 2 (Aug. 4,1980),
which was enclosed with the Staff's brief to the Appeal Board.
M/ ALAB-618 at 11.
-r
-r
-w e
. e shown that the Appeal Board's decision is wrong as a matter of law or that it raises an issue of such exceptional legal importance that the Comission should review ALAB-618 under 10 C.F.R. 2.786(a).
B.
The Appeal Board's Decision is Consistent with the Policies Expressed in the Commission's Marble Hill Decision The licensee argues that the Appeal Board's decision conflicts with the Commission's decision in Marble Hill and its progeny,E decisions which the licensee avers militate against examining seismic hazard in this show-cause proceeding.
Petition for Review at 6-8.
The Appeal Board correctly found that the licensee's reliance on the Marble Hill decision is misplaced.N Indeed, the Appeal Board's definition of the Licensing Board's authority in this proceeding confoms wholly to the principles in Marble Hill. Marble Hill stands for two basic principles: (1) a person may not establish a legal right to a hearing on an enforcement order on the basis that the order should have granted more extensive relief; and (2) an enforcement proceeding may be limited lawfully to consideration of the remedy proposed in the order. Consideration of seismic hazard at La Crosse would not conflict with either of these principles.
Both the Appeal Board and Licensing Board have recognized that any consideration of seismic hazard at La Crosse must "be
-11/ Public Service Co. of Indiana (Marble Hill Nuclear Generating Station.
Units 1 & 2), CLI-80-10,11 NRC 438 (1980); Wisconsin Electric Co. (Point Beach, Unit 1), Commission Order (Docket No. 50-266, May 12,1980);
Houston Lighting & Power Co. (South Texas Project, Units 1 & 2), CLI-80-32, 12 NRC (Sept. 22,1980).
1_2/ ALAB-618 at 11.
I
~
o
.g.
t conducted in the context of the appropriateness of the precise remedy pre-scribcd in the show-cause order."E The Appeal Board's decision rests, therefore, fimly on the foundation established by Marble Hill. The Appeal Board's decision does not expand the parameters of the proceeding contra Marble Hill.
The licensee also points to the Commission's South Texas decision as a basis for arguing that the Appeal Board is pemitting consideration of issues in this show-cause proceeding which are more appropriately explored in the pending full tem operating license proceeding for the LACBWR.
Petition for Review at 8, n.5.
While South Texas teaches that enforcement proceedings should not be used to detemine extraneous issues better left to an operating license proceeding, the Appeal Board's decision here does not expand this show-cause proceeding into a proceeding to finally detemine a safe shutdown earthquake for La Crosse.
Rather, the Appeal Board ruled that any inquiry into seismic hazard is limited to an inquiry on the need for the dewatering system, i.e., as to whether the 0.12g value is appropriate in detemining liquefaction potential.EI hhether the Licensing Board should, as a matter of discretion, defer consideration of the seismic issues within the scope of this proceeding to a later time or consolidate these issues with the pending operating license
,1_3/ ALAB-618 at 12; see also Prehearing Conference Order at 18-20.
3 14/ Houston Lighting & Power Co. (South Texas Project, Units 182), CLI-80-32, 12 NRC (Sept. 22, 1980).
_1_5/ See ALAB-618 at 12.
proceeding was not detennined by the Appeal Board and the Commission need not determine that question here. Because the licensee has not shown that the Appeal Board's decision runs afoul of existing Commission policies or otherwise raises a new issue of exceptional policy importance, the licensee's petition does not raise a policy matter which would warrant the Commission's review of ALAB-618 under 10 C.F.R. 2.786(a).
IV.
CONCLUSION As noted in Section II above, the Commission's rules do not authorize the filing of petitions for review of Appeal Board decisions on certified questions. Moreover, the issue decided in ALAB-618 does not rise to the level of a question of such exceptional legal or policy importance that sua sponte review by the Commission is warranted.
Indeed, the Staff has shown in this answer that ALAB-618 was correct as a matter of both law and policy.
Seismic hazard bears on the issues set for hearing. The Board must have confidence that its decision rests on a thorough examination of all relevant ma tters. The Board's inquiry rests well v. -in the limits imposed on enforce-ment proceedings by the Commission. The pet. ion for review should be denied.
Respectfully submitted, 5A6J Stephen G. Burns Counsel for NRC Staff M
Kardn D. Cyr
(/
Counsel for NRC Staff Dated at Bethesda, Maryland this 12th day of December,1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of DAIRYLAND POWER COOPERATIVE i
Docket No. 50-409-SC (LaCrosseBoilingWaterReactor)
)
(Order to Show Cause)
CERTIFICATE OF SERVICE i
I hereby certify that copies of the NRC STAFF'S ANSWER OPPOSING LICENSEE'S PETITION FOR REVIEW OF ALAB-618 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, through deposit in the Nuclear Regulatory Comission's internal mail system this 12th day of December,1980.
John Ahearne, Chairman
- Charles Bechhoefer, Esq.*
U. S. Nuclear Regulatory Commission Chairman Washington, D. C. 20555 Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission Victor Gilinsky, Comissioner*
Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Mr. Ralph Decker Route #4, Box 1900 Joseph Hendrie, Commissioner
- Cambridge, Maryland 21613 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Dr. George C. Anderson Department of Oceanography Peter Bradford, Commissioner
- University of Washington U. S. Nuclear Regulatory Commission Seattle, Washington 98195 Washington, D. C. 20555 Coulee Region Energy Coalition Alan S. Rosenthal, Esq.*
Attn: Ms. Ann K. Morse Chairman P. O. Box 1583 Atomic Safety & Licensing Appeal Board La Crosse, Wisconsin 54601 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Fritz Schubert, Esq.
Staff Attorney Dr. John H. Buck
- Dairyland Power Cooperative Atomic Safety & Licensing Appeal Board 2615 East Avenue, South U. S. Nuclear Regulatory Commission La Crosse, Wisconsin 54601 Washington, D. C. 20555 Mr. Frank Linder Thomas S. Moore, Esq.*
General Manager Atomic Safety & Licensing Appeal Board Dairyland Power Cooperative U. S. Nuclear Regulatory Comission 2615 East Avenue, South Washington, D. C. 205S5 La Crosse, Wisconsin 54601
e s
-2 O. S. Hiestand, Esq.
Kevin Gallen, Esq.
Morgan, Lewis & Bockius 1800 M Street, N. W.
Washington, D. C. 20036 Mr. Frederick M. Olsen, III 609 N. lith Street La Crosse, Wisconsin 54601 Atomic Safety & Licensing Appeal Panel
- U. S. Nuclear Regulatory Comission Washington, D. C. 20555 Atomic Safety & Licensing Board Par.el*
U. S. Nuclear Regulatory Comission Washington, D. C. 20555 Docketing & Service Section*
U. S. Nuclear Regulatory Commission Washington, D. C. 20555 4
Stephen G. Burns Counsel for NRC Staff
--