ML19343B697

Supplemental Memorandum Per Aslab 801209 Order Re Question of Board Authority to Decide State of or Appeal on Basis of Matter Not Included in Record Underlying Decision.Aslab Lacks Such Authority.Certificate of Svc Encl

ML19343B697
Person / Time
Site:	Trojan File:Portland General Electric icon.png
Issue date:	12/18/1980
From:	Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
TAC-13152, NUDOCS 8012300110
Download: ML19343B697 (8)

Text

12/18/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

PORTLAND GENERAL ELECTRIC COMPANY, ET AL.

)

Docket No. 50-344

)

(Control Building)

(Trojan Nuclear Plant)

)

SUPPLEMENTAL MEMORANDUM ON APPEAL BOARD'S AUTHORITY TO DECIDE AN APPEAL BASED ON MA' ITER NOT INCLUDED IN THE RECORD BELOW

~

I.

INTRODUCTION By Order dated December 9,1980 (Order), the Atomic Safety and Licens-ing Appeal Board (Appeal Board) in the captioned proceeding directed the NRC Staff to file a supplemental memorandum on the question of the Appeal Board's authority to decide the appeal of the State of Oregon on the basis of matter not included in the record underlying the Licensing Board's decision. That Order was prompted by the Staff's brief in response to Oregon's appeal in which the Staff set forth its view that the Licensing Board did not err in refusing to grant the relief sought by Oregon but that new information which became available subsequent to the Licensing Board's ruling on the matter indicates that the relief sought by Oregon is warranted. The Staff's response to the Appeal Board's Order is set forth below.

II. NRC STAFF'S RESPONSE As set forth in the Staff's brief in response to Oregon's Appeal.1/ and as an examination of the record developed before the Licensing Board will 1/ NRC Staff's Brief in Response to the Appeal of the State of Oregon, December 8,1980 (Appeal Brief), pp.13-15.

fDh

. reveal, the existing record does not warrant the relief sought by Oregon.

Rather, new information which became known to the Staff and which the Staff made available to the Appeal Board and parties in the proceeding was the basis for the Staff's view that the relief sought by Oregon was appropriate.

In pressing this view in its Appeal Brief, however, the Staff did not account for the fact that such new information was not a part of l

j the fcrmal record in this proceeding.

In point of fact, it is well settled that "[n]othing can be treated as evidence which is not introduced as such."2_/ While an appeal board may examine extra-record material to determine whether it casts doubt on the correctness of the decision being reviewed and to determine whether the record should be reopened for the receipt of supplemental evidence,3/

neither a licensing board nor an appeal board may base a decision on factual material which has not been introduced into evidence.S/ Thus, it 2/ Public Service Com any of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1&2, ALAB-459, 7 NRC 179,191 (1978).

-I See, e.g., Tennessee Valley Authority (Hartsville Nuclear Plant, Units l A, 2A,1B & 2B), ALAB-463, 7 NRC 341, 351-52 (1978) (Appeal Board examined extra-record scientific articles cited in proposed findings and relied upon by appellant to determine need for reopening record); Duquesne Light Company, et al. (Beaver Valley Power Station, Urit 2), ALAB-240, 8 AEC 829, 834 and n.ll (1974) (Appeal Board examined extra-record inspection reports for support for certain Licensing Board findings); Consumers Power Company (Midland Plant, Units 1&2), ALAB-123, 6 AEC 331, 347 (1973) (Appeal Board considered Commission reports, not introduced into evidence but re'ied upon by appellants, to determine if a remand to consider new information in the reports was necessary).

-I Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, & 2B), ALAB-463, 7 NRC 341, 352 (1978). See also Duquesne Light Company, et al. (Beaver Valley Power Station, Unit 2), ALAB-240, 8 AEC 829 at 834, n.ll (1974); Wisconsin Electric Power Company, et al.

(Point Beach Nuclear Plant, Unit 2), ALAB-90, 6 AEC 11, at 15, n.4 (1973).

O*

' is clear that the Appeal Board does not have the authority to decide an appeal on the basis of matter which is not included in the formal evidentiary record before it.

Since the new information which the Staff believes to be supportive of Oregon's appeal is not, and could not have been made, a part of the evi-d dentiary record developed before the Licensing Board, it cannot be treated as evidence and may not form the basis for a decision on appeal without supplementation of the evidentiary record.

In notifying the Appeal Board and parties of the new information and subsequently in relying on that new information in supporting Oregon's appeal, the Staff did not - as indeed it should have - request that the evidentiary record be reopened for receipt of the new information. Such a request should have been made since reopen-ing the record for the receipt of the new information would be necessary to protect the parties, particularly the Licensee, if the Appeal Board is to base its decision on Oregon's appeal on such new information.

III.

STIPULATION ON ACCELERATED REPORTING LICENSE CONDITION AND REQUEST OF THE PARTIES TO REOPEN THE RECORD In a letter, motion and stipulation on accelerated reporting filed by 3

the Licensee on December 18, 1980 in its own behalf and on behalf of the State of Oregon and the NRC Staff, the Licensee informed the Appeal Board, and transmitted a copy, of a stipulation among these parties whereby the Licensee agrees to the imposition, with the Appeal Board's approval, of a license condition on accelerated reporting which would satisfy Oregon and

. the Staff and resolve the appeal of the State.E/ Under this stipulation, which has been orally agreed to by these parties and is now being circulated for signatures, these parties would also stipulate to the admission into evidence of the attachments to the Staff's board notification letter of November 24, 1980 to support the imposition of the license condition.

In the joint motion and stipulation, the Licensee, the State of Oregon and the Staff jointly request that the record be reopened for admission of the attachments to the Staff's November 24, 1980 board notification letter a.nd the terms of the stipulation.b/ Reopening of the record and admission of these documents as requested would, we believe provide a record which E! Fair and reasonable settlements of contested matters among the parties are encouraged by the Commission. See 10 CFR 6 2.759.

In these cir-cumstances, if the parties affected by the license condition in question agree to its imposition, there appears to be no legal impediment to imposing the condition. Southern California Edison Company, et al.

(San Onofre Nuclear Generating Station, Units 2&3), ALAB-248, 8 AEC 957, 977 (1974).

Cf. Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1&2), ALAB-261, 1 NRC 57, 59 (1975).

5/ The Appeal Board's authority to take evidence and render a decision based on that evidence is well established.

(Consolidated Edison Company of New York, Inc. (Indian Point, Units 1, 2&3), CLI-75-8, 2 NRC 173,177 (1975); Tennessee Valley Authority (Hartsville Nuclear Plant, Units l A, 2A,1B & 2B), ALAB-467, 7 NRC 459, 461 (1978);

Cleveland Electric Illumine. ting Company (Perry Nuclear Power Plant, Units 1&2), ALAB-443, 6 NRC 741, 757 at n.53 (1977). See also, Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1&2), ALAB-284, 2 NRC 197,198 (1975); Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-194, 7 AEC 431, 448 (1974)). Receipt of evidence by the Appeal Board here would be consistent with past practice of the Appeal Board in taking evidence itself, as part of its appellate review function, in the interest of i

reasonable expedition.

(See, e.g. Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1&2), ALAB-598,11 NRC 876, 883 (1980) and ALAB-580,11 NRC 227, 231 (1980); Tennessee Valley Authority (Hartsville Nuclear Power Plant, Units 1 A, 2A,1B & 28),

ALAB-467, 7 NRC 459, 461 (1978); Vermont Yankee Nuclear Power Corporation (Vemont Yankee Nuclear Power Station), ALAB-194, 7 AEC 431, 448 (1974)).

. would support imposition of the stipulated license condition. Accordingly, the Staff will not seek supp;ementation of the record beyond that requested in the joint motion and stipulation filed today.

IV. CONCLUSION Based on the foregoing, in answer to the Appeal Board's inquiry in its December 9,1980 Order, it is the Staff's view that the Appeal Board lacks the authority to base its decision on Oregon's appeal on information which is not a part of the evidentiary record developed in this proceeding. The Staff erred in supporting Oregon's appeal on the basis of information not in the record and, in the joint motion and stipulation of the Licensee, the State and the Staff filed on December 18, 1980, formally requests that the record be reopened for receipt of information which would support imposition of an accelerated reporting license condition agreed to by the parties.

Respectfully submitted,

,.Af1/k..

Jos h R. Gra Counsel for NRC Staff Dated at Bethesda, Maryland f

this 18th day of December,1980 f1 m

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

BEFORE THE ATOMIC SAFETY AND LICENING APPEAL BOARD In the Matter of

)

}

PORTLAND GENERAL ELECTRIC COMPANY, ET AL.

)

Docket No. 50-344

)

(Control Building)

(Trojan Nuclear Plant)

)

i E

CERTIFICATE OF SERVICE I hereby certify that copies of " SUPPLEMENTAL MEMORANDUM ON APPEAL BOARD'S AUTHORITY TO DECIDE AN APPEAL BASED ON MATTER NOT INCLUDED IN THE RECORD BELOW" 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 Commission's internal mail system, this 18th day of December,1980:

Alan S. Rosenthal, Esq., Chairman

• Dr. Hugh C. Paxton Atomic Safety and Licensing Appeal 1229 41st Street i

Board Los Alamos, NM 87544 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. John A. Kullberg 15523 S.E. River Forest Drive Dr. John H. Buck, Member

• Portland, OR 97222 Atomic Safety and Licensing Appeal Board Frank W. Ostrander, Jr.

U.S. Nuclear Regulatory Commisd on Counsel for Dept. of Energy

~

Washington, DC 20555 500 Pacific Building 520 S. W. Yamhill Dr. W. Reed Johnson, Member

• Portland, OR 97204 Atomic Safety and Licensing Appeal Board Maurice Axelrad, Esq.

U.S. Nuclear Regulatory Commission Lowenstein, Newman, Reis, Washington, DC 20555 Axelrad & Toll Suite 1214 Marshall E. Miller, Esq., Chairman

• 1025 Connecticut Avenue, N.W.

Atomic Safety and Licensing Board Washington, DC 20036 U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. David B. McCoy 348 Hussey Lane Dr. Kenneth A. McCollom, Dean Grants Pass, OR 97526 Division of Engineering, Architecture & Technology Oklahoma State University Stillwater, OK 74074

2-Ronald W. Johnson, Esq.

Atomic Safety and Licensing Board Corporate Attorney Panel

• Portland General Electric U.S. Nuclear Regulatory Commission Company Washington, DC 20555 121 S.W. Salmon Street Portland, OR 97204 Atomic Safety and Licensing Appeal Panel (5)*

William W. Kinsey U.S. Nuclear Regulatory Commission Robert L. Jones, Esq.

Washington, DC 20555 Bonneville Power Administration P.O. Box 3621 Docketing and Service Section (7)*

Portland, OR 97208 Office of the Secretary U.S. Nuclear Regulatory Commission Ms. Nina Bell Washington, DC 20555 728 S.E. 26th Portland, OR 97214 Mr. Eugene Rosolie Coalition for Safe Power 215 SE 9th Avenue Portland, OR 97214 N

J 'ep R. Gray

/

1 uns 1 for NRC Waff 1

a

.r-4 r-.

, ~...

.. ~, - _

-