ML19343A701
| ML19343A701 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/18/1980 |
| From: | Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19343A703 | List: |
| References | |
| NUDOCS 8011190746 | |
| Download: ML19343A701 (16) | |
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UNITED STATES OF AERICA
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I BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD L
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. a RESPONSE OF THE NRC STAFF IN OPPOSITION TO MOTION TO SUSPEND CONSTRUCTION t.c.
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TABLE OF CONTENTS Page I.
STATEMENT OF THE CASE.....................
1 II. ARGUMENT 2-A.
Applicable Legal Standards 2
B.
A Balancing of Equities..................
6 C.
Potential for Prejudicing Further Decisions........
10 III.
CCNCLUSION 12 4
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TABLE OF CITATIONS Page Court Cases:
Virginia Petroleum Jobbers v. F.P.C., 259 F.2d 921, 925
( D. C. Ci r. 19 5 8 ).........................
3,6 Martinez v. Mathews, 554 F.2d 1233 (5th Cir.1976).........
4 NRC Cases:
Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-395, 5 NRC 772, 784-785 (1977) 4,6,7 Consume _rs Power Co. (Midland Plant Units 1 and 2), ALAB-458, 7 NRC 155 (1978)......................... 4,9,11 Public Service Company of Indiana Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-437, 7 NRC 807 (1978)...
8 Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-366, 5 NRC 39 (1977)........
9
~Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977) 3,8 Public Service Company of New Hampshire, et al., (Seabrook Station, Units 1 and 2), CLI-78-14, 7 NRC 952 (1978).......
5
~Public Service Company of New Hampshire, et al., (Seabrook Station, Units 1 and 2), CLI-78-17, 8 NRC 179 (1978).......
5 Public Service Company of New Hampshire, et al., (Seabrook Station, Units 1 and 2), CLI-80-33,12 NRC (September 25, 1980) 1 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-212, 7 AEC 986 (1974) 10 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), At AB-268,1 NRC 383 (1975) 6,9 Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1,
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2 & 3), ALAB-385, 5 NRC 621 (1977)................
4
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t iii TABLEOFCITATIONS(CONT'D) i i
t P_a ge, Regulations:
i 1
t 10 C.F.R. Part 100 Appendix A...................
1 10 C.F.R. 12.788(e) 3 10 C.F.R. 62.788(a) 7 10 C.F.R. 52.788..........................
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tfilSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443 NEW HAMPSHIRE, e_t_ _al.
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50-444
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(Seabrook Station, Units 1
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and 2)
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RESPONSE OF THE NRC STAFF IN OPPOSITION TO MOTION TO SUSPEND CONSTRUCTION I.
STATEMENT OF THE CASE By " Order" issued September 25,1980.S the Commission acted upon the petition of the New England Coalition on Nuclear Pollution (hereinafter "NECNP") for review of the Appeal Board's determinations concerning "the seismic design of the Seabrook Nuclear Plant." I By a divided vote the Commission ordered the record reopened with respect to two discrete seismic issues, viz., (1) the factual validity (or lack thereof) of Dr. Michael Chinnery's hypothesis that there is an empirical relationship between earthquake intensity and earthquake recurrence time and the impact of that hypothesis on the present seismic design of Seabrook; and (2) whether the Staff's methodology for correlating vibratory ground motion is consistent with Appendix A to 10 C.F.R. Part 100. The Commission did not, in its Order, coninent upon the status of the previously issued construction 3 ublic Service Company of New Hampshire, et al. (Seabrook Station, Units 1 P
ar.d 2), CLI-80-33, 12 NRC (September 25, 1980) (hereafter, " Commission's Order").
I
- - l d_., p. 1.
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i permits held by the permittee.
By " Memorandum and Order" dated November 6, 1980, the Appeal Board established April 6,1981 as the date for commencement of evidentiary hearings in this remanded proceeding.
On October 29, 1980, one day short of five weeks from the date of the Commission's Order, NECNP moved this Appeal Board for "... the immediate suspension of the construction permits fcr Seabrook Station, Units 1 and 2 until the issues raised by the Commission have been resolved or until the Applicant performs a complete seismic re-analysis and demonstrates that construction can continue without foreclosing necessary or optimal design alterations."
(NECNP Motion,
- p. 7). For the reasons discussed below, the Staff opposes NECNP's motion.
II. ARGUMENT A.
Applicable Legal Standards At the outset it should be noted that there are at least two distinct sets of criteria which govern Commission stay practice.
The first such criteria, or legal standards governing Commission stay practice, were first enunciated I
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. in Virginia Petroleum Jobbers v. FPC, 259 F.2d 921, 925 (D.C. Cir.1958) and are now codified in 10 C.F.R. 62.788(e) of the Commission's Rules of Practice.S These criteria directly apply to stays of decisions of presiding officers and Appeal Boards pending appeal or pending a petition for Commission review.S A distinctly different set of criteria apply in the case of a motion to suspend previously issued permits after a licensing proceeding has been subsequently remanded.
In such a case,~ the' Comission has held:
... the question of the suspension of the permits herein must at the least be decided on the basis of (1) traditional balancing of equities and (2) consideration of any likely prejudice to further decisions that might be called for by the remand. This test is to be distinguished from the more stringent test of Virginia Petroleum Jobbers Association
- v. FPC... which has been used in ruling on stays pending review.... j (emphasis supplied)
-_/
3 10C.F.R.52.788(e)provides:
(e)
In determining whether to grant or deny an application for a stay, the Commission, Atomic Safety and Licensing Appeal Board, or presiding officer, will consider:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably in-jured unless c. stay is granted; (3) Whether the granting of a stay would hann other parties; and (4) Where the public interest lies.
S10 C.F.R. 52.738(a).
S ublic Service Company of New Hampshire, et al., (Seabrook Station, Units P
1and2),CLI-77-8,5NRC503,521(1977)-~TSuspensionbaseduponuncertainties introduced by EPA's continuing consideration and reconsideration of the appropriate cooling system).
I i
l In light of the Commission's selection of the above enunciated standard as appropriate in evaluating motions for a suspension of construction upon remand in this very licensing proceeding, subsequent Commission practice generally has been in confomance with that decision.
Lest, however, we venture too swiftly into a discussion only of the Seabrook two-prong test for suspending construction pennits, the instant request for a stay should be examined in light of its distinct factual background.1 Whereas the two-prong Seabrook standard has previously been applied in situations where the prior administrative proceedings have subsequently been held to be defective in certain material respects 3 the Staff cannot agree with NECNP's fundamental position that based on the Commission's Order, "... the decision to grant construction permits for Seabrook and the continuation of construction cannot be considered valid" (Motion, p.1).
In that regard, the Staff S
e, e.g., Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-395, Se 5 NRC 772, 784-785 (1977); jd_., ALAB-458, 7 NRC 155,159-1E1 (1978) (remand by Court of Appeals).
It should be noted, however, that both of these decisions concern alternate sites.
sit should be noted that any request for the suspension of existing permits does not simply involve the preservation of the status quo but inherently involves a request for affirmative relief in the form of the suspension, pending completion of the remand.
It has, moreover, been held that requests for mandatory preliminary relief should not be granted unless the facts and law clearly favor the moving party. See, e.g., Martinez v. Mathews, 554 F.2d 1233 (5th Cir.1976); see also, ToTedo Edison Co. (D3vis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621, 625-626 (1977).
In evaluating the facts and law, the very nature of the remand is a relevant factor. Here there has been a remand to reopen the record (together with a direction that the Appeal Board reconsider its opinion on the remanded issues).
This should be contrasted with a remand subsequent to a reversal or a remand after an opinion or finding has been vacated.
S ee, e_.g., Consumers Power Co., supra note 6, ALAB-458, 7 NRC 155.
S believes that it is important to recall the precise scope of the Comis-sion's Order as well as the' Commission's previ.ously articulated views on the relationship between the seismic issues and the validity of the continued operational effect of the Saabrook construction permit.
In its Order, the Comission found in part,'"... that the Appeal Board erred in holding tLat Dr. Chinnery's methodology... [was] inconsistent with Arpendix A."S ue to D
(i) the lapse of time since Dr. Chinnery's prior testimony, (ii) the subsequent publication of Dr. Chinnery's work, and (iii) the general increase in seismological knowledge, the Comission ordered the record re-opened.N The Comission, however, expressed no opinion as to the adequacy of the seismic design of the Seabrook facility. Moreover, it must be recalled that the Commission has previously commented upon seismic issues and their relationship to the con-struction permit.
In its decision reinstating the Seabrook construction pennits previously suspended in CLI-78-14, 7 NRC 952 (1978), the Comission stated:
SAPL/Audubon also refers to the fact that Comission review of seismic issues in this case has not yet been completed as another basis for continuing the suspension.
That factor has no bearing on the suspension question.
Mr. Farrar of our Appeal Board dissented from the Appeal Board majority's resolution of certain seismic issues, but he made clear that his position on these seismic issues, even were it accepted, would not preclude continued construction of the Seabrook' facility, nor would it be likely to affect the alternate site question.
Public Service Company of_New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-17, 8 NRC 179,180-181 n. 7 (1978).
d/ ommission Order, p. 2.
C N omission Order, pp. 3-4.
C
, Thus, the Staff cannot agree with the basic supposition of NECNP that the Comis-sion's Order must call into question the present viability of the construction permits.
It is with these precepts in mind that the Staff will proceed to examine NECNP's motion on the basis of the two-pronged.Seabrook criteria.E B.
A Balancing of Equities At the outset, it is indeed noteworthy that NECNP's motion was not filed until approximately five weeks after the Commission's Order.
This is significant for a number of reasons.
First, from the content of the motion, it is clear that its filing did not await a marshalling of evidence in its support.
It is merely posited upon wo basic arguments. The first such argument is that the Comission's Order a_ fortiori calls into question the viability of the previously issued con-struction pennits. The second argument is based on generalized, if not specu-lative, assertions to the effect that corrective options might be foreclosed if construction were permitted to continue. These generalizations are buttressed by the claim that the essential facts regarding construction are exclusively in the hands of the pennittee.
Even though it has been concluded that such generalized assertions are insufficient to win the extraordinary remedy of a stay,E the paucity of factual or legal references in the motion supports the N n that regard it is noteworthy that NECNP failed to discuss both the Virginia I
Pef.roleum Jobbers criteria and the Seabrook criteria. Rather, NECNP relies uptn Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268,1 NRC 383 (1975), an earlier decision in which construction permits were not vacated but where the Appeal Board contemplated under what factual circumstances it might be inclined to so act. As such, those "cinumstances" are discussed in the " balancing of equities" section of this response.
E onsumers Power Company, supra note 6, 5 NRC 772, 785.
C proposition that the motion was filed late without apparent justification.
- Indeed, requests for a stay pending appeal filed pursuant to 10 C.F.R. 62.788(a) must be fined within ten days after service of a decision. As in the case of stay requests filed pursuant to that regulation, a late request, without apparent justification, should weigh in the balancing of the equities by the Appeal Board.
Secondly, it is clear that in stay motions filed pursuant to a remand, the movant has a greater obligation than to simply state that the record is bare and that all relevant materials concerning construction are in the hands of the permittee. As the Appeal Board observed in a proceeding involving a stay pursuant to a remand:
The instant motion, to stay further construction of the Midland plant pending completion of the remanded pro-ceedings before the Licensing Board, inadequately addresses those factors.
Its three pages amount to no more than a general broadside based on the " record thus far deve-loped" at the hearings. We are left on our own to discover in that record (now more than five thousand--5,000--
transcript pages long) any evidence which bears on the movants' right to the relief sought. Such argu-ments are patently inadequate.
At the least, one seeking a stay bears the burden of marshalling the evidence and making the arguments which denonstrate his entitlement to it.
It is hardly a novel proposi-tion that, like general principles, unsupported assertions do not decide concrete cases.
For this reason alone we would be compelled to deny relief.13]
S onsumers Power Company, supra note 6, 5 NRC at 785.
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. Thirdly, as to the status of construction and the impact of that factor on the equitable balancing process, the Staff has received a copy of the " Affidavit of John DeVincentis'" prepared by the Public Service Company of New Hampshire pursuant to this Appeal Board's " Order" of October 30, 1980. That affidavit summarizes the percent qe of completion for safety-related structures, and safety-related equipment and materials for the Seabrook facility as well as
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future completion schedules in percentages. The Staff is in general agreement with the figures contained in the af'idavit.
In the next six months, construction activities will continue in these areas but the Staff is not aware of any adverse impact of these construction activities if they are permitted to continue. More significantly, the Staff does not believe that the continuation of these activities will foreclose any reasonable construction alternatives in the unlikely event it is concluded that structural engineering modifications are required.b In addition, NECNP has not shown, and the Staff believes NECNP cannot show, any irreparable harm to it as a result of the continued construction at the Seabrook site.W Finally, the
$ ee " Affidavit of James P. Knight" attached to this pleading.
5 With respect to the DeVincentis affidavit, it is noteworthy that with respect to Unit 1, the containment structure is presently 54% complete, the primary auxiliary building is presently 60% complete, the cooling tower 93% complete and the safety-related eonipment and materials from 83-90% complete.
b" Affidavit of James P. Knight." At the remanded seismic hearing, the Staff will address through expert testimony the many structural engineering conser-vatisms already inherent in the design and construction of the Seabrook plant.
E e absence of such irreparable harm would deal a ear-fatal blow to NECNP's Th motion under the more restrictive standards of 10 C.#.R. 52.788(e). See Public Service Company of_ Indiana Inc. (Marble Hill buclear Generating Station, Units 1 & 2), ALAB-437, 7 NRC 807 (1978); Public Service Company of New I
_ Hampshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977).
Staff does not believe that the familiar equitable doctrine of " unclean hands"N would apply in this case against the permittee, as the permittee proceeded to con-struct the Seabrook facility pursuant to its duly issued construction permits, and the scismic issues (and the information relating thereto) which are the subject of this remand were fully disclosed, identified, and litigated by all parties including the permittee, below.
In light of the foregoing discussion, it would appear that an examination of the equities would not support NECNP's motion for a suspension of con-struction. This conclusion would be true even if the criterion suggested by NECNP were used. As previously noted, NECNP abstained from discussing both the stay criteria now codified in 10 C.F.R. 52.788 as well as the two-prong Seabrook test for suspensions pursuant to a remand.
NECNP has relied upon Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268,1 NRC 383 (1975) (NECNP Motion, p. 3). That decision predates both the current regulation,10 C.F.R. 52.788 and the Seabrook test.
Nevertheless, there is language in that decision which can be construed as describing factual situations where an Appeal Board might vacate a construction permit issued by a licensing board. While the Appeal Board did not order the sus-pension of construction permits in San Onofre, it speculated that it may be appro-priate to do so if: (1) construction deficiencies posed a hazard during construction; (2) construction deficiencies needed to be corrected before further construction could take place; (3) construction deficiencies were uncorrectable; or (4) significant environmental harm might come from continued construction.E Notwithstanding the fact that Conmission stay practice has developed independently N ee, e.g., Public Service Company of New Hampshire, et al. (Seabrook S
Station Units 1 and 2), ALAB-366, 5 NRC 39, 69 (1977T; Consumere Powei Company, supra note 6, 7 NRC at 171.
El NRC at 401.
.w of this decison during the past five yaars, none of the aforementioned San Onofre conditions exist in this case.
Therefore, the NECNP motion fails even when using the equitable standards NECNP elected to follow.19f C.
Potential for Prejudicing Further Decisions The second. factor in the two-pronged Seabrook test requires a " consideration of any likely prejudice to further decisions that might be called for by the remand." Inasmuch as construction of the Seabrook facility has been proceeding over the past four years, and there is no indication, nor is the Staff aware of any scheduled construction events for the winter and spring of 1981 that would prevent any subsequent remedial construction options as hypothesized by NECNP,b the Staff does not believe that permitting construction to proceed on schedule would prejudice later decisions.21/ As recognized by the Appeal E e conclusion that NECNP has not satisfied its own prcffered standards Th is also consistent with an equitable approach that upon a ramand, previously issued construction permits and operating licenses would not be disturbed absent a "... reason to beliue that the pendente lite continuation of the activities in question might pose in itself a threat to health and safety (or, to the environment if the remand encompasses environmental issues).
Southern California Edison Co. (San Onofre Nuclear Generating Station,
[ nits 2 & 3), ALAB-212, 7 AEC 986, 997 (1974). There has been no indication of a threat to the health and safety posed by continued construction at Seabrook.
ENECNP Motion, pp. 4-5.
b ee " Affidavit of James P. Knight."
S
. Board in Midland, supra, "[V]iewing these circumstances against the background of a nuclear plant that was well on its way to completion at the time of the remand, we are unable to perceive how permitting construction to proceed could prejudice later decisions.
In other cases, a need might arise to suspend construction at an early stage to preserve potential options that could prove
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preferable.
But no such options are in sight." 7 NRC 173. Whereas it is true that "iq the final analysis an applicant invests in a nuclear project [and proceeds]
at its own risk,"
there appears to be no basis to conclude that the Seabrook construction permits nead be suspended now on the basis of " potential for prejudicing further decisions." Whether such changes will even be required is highly speculative at this point.
Before any such changes can even be contemplated, this Appeal Board will have to examine at the evidentiary hearing, inter alia, not only the factual validity of Dr. Chinnery's methodology, but the impact, if any, of the consideration of that methodology on the present seismic design of the Seabrook facility.
22/ ee, e.g., Consumers, supra note 6, 7 NRC at 172 and authorities therein Scited!
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III. CONCLUSION For the reasons stated above, the Staff believes that NECNP's motion to suspend construction should be denied as wholly unmeritorious.
Respectfully submitted.
QL dDM Roy P. Lessy Counsel for NRC Staff Dated at Bethesda, Maryland this 18th day of November,1980 6
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