ML19345B272
| ML19345B272 | |
| Person / Time | |
|---|---|
| Site: | Bailly |
| Issue date: | 11/20/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-619, NUDOCS 8011280001 | |
| Download: ML19345B272 (29) | |
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UNITED STATES OF AMERICA 79 g
NUCLEAR REGULATORY COMMISSION c,
A ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Alan S.
Rosenthal, Chairman I bCLI Dr. John H. Buck Thomas S. Moore de o
epp
)
g, /pg In the Matter of a
NORTHERN INDIANA PUBLIC SERVICE COMPANY )
Docket No. 50-367
)
(Bailly Generating Station, Nuclear 1)
)
(Construction Permit
)
Extension)
Ms. Diane B. Cohn, Washin con, D. C.
(with whom Mr. William B.
Schultz, Washington, D.
C., was on the brief), for the petitioners, City of Gary, Indiana, et al.
Mr. William H. Eichhorn, Hammond, Indiana (with s
whom Mr. Maurice Axelrad, Ms. Kathleen H. Shea
~
and Mr. Steven P.
Frantz, Washington, D.
C.,
were on the brief), for the applicant, Northern Indiana Public Service Company.
Mr. Robert J. Vollen, Chicago, Illinois (with whom Ms. Jane M. Whicher and Messrs. Edward W.
- Osann, Jr.,
and Robert L. Granari, Chicago, Illinois, were on the brief), for the inter-venors, Porter County Chapter of the Isaak Walton League of America, Inc., et al.
Mr. Steven C. Goldberg for the Nuclear Regulatory Commission staf f.
Dr. George Schultz, Michigan City, Indiana, filed a brief as petitioner pro se.
Attorney General of Illinois Tyrone C.
Fahner and Assistant Attorneys General Susan N.
Sekuler and Mary Jo Murray, Chicago, Illinois, filed a brief on behalf of the State of Illinois.
DECISION November 20, 1980
( ALAB-619)
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. I.
On May 1, 1974, following the rendition of a Licensing Board initial decision authorizing him to do so,3-[ the Direc-tor of Regulation of the then Atomic Energy Commission- ! is-
,s sued a permit (CPPR-104 ) for the construction of the Bailly Generating Station, Nuclear 1.
As required by both Section 185 of the Atomic Energy Act, 42 U.S.C.
22 35, and the Commis-sion's regulations,10 CFR 50.55 (a), the permit specified, inter alia, the date by which construction had to be completed.
That date was September 1,19 79.
_l,/
The appellate review of the initial decision was exhaustive.
In ALAB-224, 8 AEC 244, rehearing denied, ALAB-227, 8 AEC 416 (1974), we affirmed the decision.
On judicial review, ALAB-224 was set aside on the ground that it had mis-applied the Commission's site acceptability regulations concerned with population density (which are contained in 10 CFR Part 100).
Porter County Chapter of the l
Izaak Walton League v. AIC, 515 F.2d 513 (7th Cir.
1975).
The Supreme Court summarily reversed that de-termination and remanded the cause to the Seventh Cir-cuit for the consideration of other issues.
Northern Indiana Public Service Co. v. Walton League, 423 U.S.
12 (1975).
Thereafter, the court of appeals affirmed ALAB-224.
533 F.2d 1011, certiorari denied, 429 U.S.
945 (1976).
Although over the years there have been a number of other adjudicatory rulings pertaining to the Bailly facility, none is of present relevance.
--2/
The licensing functions of the Atomic Energy Commission were transferred to the Nuclear Regulatory Commission effective January 19, 1975.
When used in connection with events transpiring af ter that date, the term "Com-mission" has ' reference to the NRC.
. Section 185 of the Act further provides that, should con-struction of a nuclear facility not be completed by the pre-scribed date, "the construction permit shall expire, and all rights thereunder be forfeited, unless upon cood cause shown, i
the Commission extends the completion date" (emphasis supplied).
This proviso, as well, has been carried over into the regula-i tions.
Section 50.55 (b) states:
If the proposed construction or modification of the facility is not completed by the latest completion date, the permit shall expire and all rights thereunder shall be forfeited:
Pro-vided, however, That upon good cause shown the commission will extend the completion date for a reasonable period of time.
The Commission will recognize, among other things, develop-mental problems attributable to the experi-mental nature of the facility or fire, flood, explosion, strike, sabotage, domestic violence, enemy action, an act of the elements, and other acts beyond' the control of the permit holder, as a basis for extending the completion date.
The Bailly facility remains today -- some six and one-half years after issuance of the permit -- in the very incipient stages of construction (less than 1% completed).
In recognition of the sicw progress of the work, on February 7, 1979 the permit holder (Northern Indiana Public Service Company, hereinaf ter
" applicant") filed an application for an amendment to the permit which would extend the completion date to September 1, 1985.
The reasons assigned for the inability to complete construction i,
4 ;
l on schedule were essentially these:
(1) the permit had been issued several months later than initially anticipated; and (2) it had proved necessary to halt construction activities at i
various times as a result of a series of unforeseen intervening events. 3/
These reasons were said to constitute the requisite good cause for extending the completion date.
4 On August 31, 1979, the applicant altered its request to ask that the completion date be extended for yet another 27 months -- to December 1,1987.
In justification, it pointed to certain regulatory delays and projected regulatory review schedules which assertedly might still further impede the i
progress of the construction work.
On November 30, 1979, a notice of opportunity for hearing on the sought permit extension was published.
In response to the notice, a number of petitions for leave to intervene and requests for hearing were filed.
Among them were those submitted (1) jointly by the City of Gary, Indiana, a labor union and three organizations (hereinafter, the
" Gary petitioners") ; and (2) by George Schults.
_3/
Among those events were a judicially imposed stay (which was in effect for over two years) and the controversy over the design of the foundation pilings for the f acil-ity.
l i
. Both the Gary petitioners and Dr. Schultz indicated in their papers below that they proposed to litigate the same single issue:
the suitability of the Bailly site from the standpoint of r.ne feasibility of providing protection to per-cons in the general vicinity should there be an accident dur-ing plant operation.S Opposing the grant of the two peti-tions, the applicant and the staff insisted, inter alia, that site suitability questions were -beyond the permissible scope of a construction permit extension proceeding. 5/
Both the
_4_/
As formulated by the Gary petitioners in a February 26, 1980 filing:
Whether realistic evacuation and emergency plans can be implemented to adequately pro-tect the populations surrounding the proposed site of the Bailly One Nuclear Generating Station in the event of a nuclear accident.
Dr. Schultz, who is employed as a clinical psychologist at the Indiana State Prison in Michigan City (said to be located within ten miles of the Bailly site), is princi-pally concerned regarding the alleged absence of any workable plan for the emergency evacuation of the 1600 inmates of that institution.
- See, e.c., his filings of December 10, 1979 and February 25, 13IV.
5/
Under the Commission's Rules of Practice, a petitioner for intervention must advance at least one acceptable co ntentio n.
10 CFR 2.714 (b), codifying, e.g.,
Missis-sippi Powar and Licht Co. (Grand Gulf Nuclear Station, Units 1 ard 2), ALAB-130, 6 AEC 423, 424 (1973), and cases thers cited.
~
. 4 staff and the applicant relied upon Indiana and Michigan Elec-tric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALA3-129, 6 AEC 414 (1973), for the proposition that a safety or l
environmental issue may be raised in such a proceeding only if, i
unlike here, that issue is associated with the reasons assigned by the applicant for the delay in completing construction.
In addition, both of these parties challenged the petitioners'
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standing to intervene. b!
In an unpublished order entered on August 7, 1980, the Licensing Board deniad the two petitions.
Although finding that the petitioners had the requisite standing to intervene, the Board determined that their site suitability contentions were not within the reach of this proceeding.
The basis for this conclusion was not agreement with the applicant's and the staff's reading of the Cook decision, ALAB-129, supra; indeed, the Board at least intimated (order, pp. 24-29) a view that
_6/
As a municipality, the City of Gary (albeit neither the other subscribers to its petition nor Dr. Schult:)
might have sought to participate in the proceeding in a non-party capacity.- 10 CFR 2.715(c).
The City ex-plicitly eschewed the opportunity to do so, electing to seek intervention solely under the provisions of 10 CFR 2.714(a).
Even if a governmental body, one seeking to acquire party status pursuant to the terms i
of Section 2.714 (a) must comply with the interest and contentions requirements embodied in that Section.
See Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 382, 392-93 (1976).
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" in appropriate circumstances it might consider issues unrelated to the reasons given for the construction delay.
Rather, as the Board saw it (order, p. 40), "[t]o the extent that allega-tions are made regarding site unsuitability because of the inabil-f ity to devise satisfactory evacuation plans, the Commission has taken it upon itself to consider all reactors under construction in areas of high population density, which removes this issue J
from consideration in this proceeding".1/
7/
By way of elaboratior, the Board had this to say (order, pp. 31-32):
- *
- Congress and the Commission have indi-cated their desire not to have new siting 1
requirements applied to f acilities authorized
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before a certain date, except by the Commis-sion on a case-by-case basis:
Public Law 96-295 (June 30, 1980), which authorizes the N.R.C.'s appropriations for fiscal year 1980 and directs the manner in which thay can be spent, provides in Section 108 that regula-tions establishing demographic requirements for siting promulgated under the authorization shall not apply to any facility for which ap-plication for a construction permit was made on or before October 1, 1979; the Commission's May 30, 1980 Order in Consolidated Edison Company of New York, Inc. (Indian Point, Unit No. 2) and Power Authcrity of the State of Mew York (Indian Point, Unit 3), Docket Nos. 50-247 and 50-286, and its advance notice of rule-making on che revision of reactor siting cri-teria, entitled " Modification of the Policy and Regulatory Practice Governing the Siting of Nuclear Power Reactors", dated July 23, 1980, 45 Fed. Reg. 50350 (July 29, 1980), dir ect the Staff to review facilities situated in areas of high population density that already have construction permits, and submit a report to the -Commission to be considered in the. Commis-sion's. case-by-case determination on eacn site.
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The Gary petitioners and Dr. Schult: appeal this ruling under 10 CFR 2.714a.
Their appeals are supported by inter-venors Porter County Chapter of the Izaak Walton League of America, et al. and the State of Illinois.
The applicant and the staf f urge af firmance.
For its part, the applicant not only endorses the Licensing Board's ruling on the petitioners' contentions but, in addition, reasserts its standing argument below.-3/
II.
The applicant's insistence that the petitioners lack standing to intervene rests on the premise that they do not possess an interest which may be affected by the outcome of this proceeding.
See Section 189a of the Atomic Energy Act, 42 U.S.C.
2239 (a), Section 2.714(a) of the Rules of Practice, 10 CFR 2.714 (a).
Thi s premise in turn is bottomed upon the applicant's concept of the essential nature of a construction permit extension proceeding.
We are told that the "[e]xten-sion of a construction permit is not an authorization of con-struction or operation".
Brief, p. 20.
Accordingly, " alleged S/
It is less clear whether the staff likewise is chal-
~-
lenging the Licensing Board's resolution of the stand-ing question.
See p. 6 of its brief.
_-- injuries resulting from construction or operation are not in-juries resulting from the extension proceeding" and therefore "do not constitute adequate grounds" for standing to inter-vone.
Id. at 21.
Rather, so the argument goes, standing "must* be predicated upon a showing that the extension of con-struction will produce an additional or incremental injury beyond that - previously authorized by the construction permit".
Ibid.
No such claim, of course, has been made by these peti-tioners; as reflected by their respective contentions, their concern relates to the possible impact of an accident during plant operation upon the health and safety of themselves or J
those whom they represent.
If the applicant's premise is right, it would appear to follow that there would not be many, if any, persons resident in the general area of a nuclear f acility under construction who could obtain intervention in a permit extension proceed-ing such as the one at bar.
The applicant provides no examples of possible " additional or incremental injury beyond that au-thori=ed.by the construction permit" which might flow from the 3
extension of the completion.date specified in the permit.
And very few come readily to mind. 9 /
Thus, what the applicant's 9/
Of fhand, we can think of only one:
the enlargement of the time interval during which the surrounding commu-l nity must endure the transitory environmental and socio-j economic effects of the construction work itself.
These effects are, however, generally of relatively little l
significance.
i
position comes down to is that the notice of opportunity for hearing amounted to a tender of public participational rights on terms which almost no individual could meet.
l We.thould, of course, be most cautious in treating Com-mission notices (whether issued by the Commission itself or its delegate) as being, in practical effect illusory.
- And, here, there is no occasion to do so.
For it is plain upon analysis that at least one of the links in the applicant's chain of reason:"..g is fatally flawed.
'While it may be true that, strictly speaking, "the ex-tension of a construction permit is not an authorization of 4
construction or operation", it is equally true that, without the extension, the plant can be neither completed nor operated.
Once again, as a matter of both statute and regulation, unless the extension is obtained the permit will expire as a matter of law and "all rights thereunder be forfeited".
See p.
3, supra.
It therefore blinks reality to suggest that the extension proceeding is entirely divorced from the authoriza-tion of construction activities and eventual plant opere lon; to the contrary, the outcome of the proceeding will have a significant, and perhaps crucial, bearing upon whether the plant will ever be placed in operation.
This being so, it
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scarcely can be gainsaid that that cutcome comes within the sphere of the cognizable interest of those persons who, be-cause they reside near the f acility site, had the requisite standing to intervene in the construction permit proceeding (and will have. similar standing with regard to any eventual operating license proceeding).
That is not to say that these petitioners necessarily are entitled to litigate in a permit extension proceeding the question of the suitability of the facility site (from the standpoint of feasibility of emergency protective mea-sures or otherwise).
Whetner a petitioner for intervention has a cognizable interest in the outcome of a proceeding and whether a particular issue is litigable in that proceeding are quite discrete questions which often will require dif-ferent answers.bS!
We therefore now turn to examine the 10/
There have been numerous NEC licensing proceedings in which a petitioner for intervention has been found to have satisfied the interest requirement of Section
- 2. 714 (a) of the Rules of Practice and yet been denied intervention because none of the contentions set forth in the petition was deemed litigable in the proceed-ing.
A very recent example is Commonwealth Edison Co.
(Carroll County Site), ALAB-601, 12 NRC (July 29, 1980).
In that early site review proceeding, two in-dividuals and an organization filec a joint interven-tion petition seeking to raise certain issues having nothing to do with the suitability of the site.
As to one of the individuals and the organization, there was no dispute that a sufficient interest in the outcome (FOOTNOTE CONTINUED ON NEXT PAGE)
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merits of the competing positions of the parties on the liti-gability question.
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III.
"It is settled that, in determining whether it is empow-ered to entertain a particular issue, a licensing board must d
i respect the terms of the notice of hearing published by the Commission for the proceeding in question".
Commonwealth Edison Co. (Carroll County Site), ALAB-601,12 NRC L
(July 29, 1980), and cases there cited.
The threshold ques-1 tion thus is whether the notice of opportunity for hearing I
which triggered this construction permit extension proceeding clothed the Board below with the authority to consider the site suitability issue which the petitioners have sought to raise.
Only if-that question is answered affirmatively, need we then move to decide whether the Licensing Board co rectly i
determined that developments subsequent to the issucnce of the notice reflect a Commission purpose to exclude petitioners' i
issue from the proceeding, f
0 10/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) of the proceeding had been alleged.
Nonetheless, we
~~
affirmed the denial of the petition even with respect to them on the ground that all of their contentions l
were beyond the permissible scope of an early site re-view proceeding (which, we determined, is confined to l
site suitability questions).
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notice of opportunity for hearing (see p.
4, supra) stated that what was to be decided was "whether, pursuant to d
10 CFR 50.55(b), good cause has been shown for extension of the completion date for (the Bailly construction permit] for a reasonable period of time, i.e.,
- *
- wh e the r, pursuant to 10 CFR 50.55 (b), the causes put forward by the (applicant] are among those which the Commission will recognize as bases for extending the completion date".
If interpreted most literally, this language might be taken as precluding the consideration of anything other than the adequacy of the asserted reasons why the plant was not built on schedule -- measured by the examples of. sufficient explanations set forth in Section 50.55 (b).
See p.
3, supra.
But such a narrow reading is permissible only if it does i
not produce an inconsistency between the notice and governing statutory and regulatory provisions.
As earlier seen, the re-quirement that " good cause" be found for a construction permit extension is rooted in Section 185 of the Atomic Energy Act and the Commission's implementing regulation, 10 CFR 50.55 (b).
What constitute the ingredients of the " good cause" determination i.e.,
what are the permissible subjects of inquiry in a pro-ceeding instituted for the purpose of deciding the existence of " good cause" -- is therefore a matter of legislative command.
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1 1
Accordingly, the meaning of this legislative term may not be altered by the expedient of a hearing notice; and the issuer of such a notice must be p*
1 to intend that it be read I
in the light of any previc pretation of Secticns 185 and 50.55(b).11/
A.
As all of the parties to this proceeding seem to ac-i knowledge, the single prior adjudicatory decision explicitly 11/
In this instance, the notica was issued by L.S. Ruben-stein, as Acting Chief of Light Water Reactors Branch 4 i
in the Division of Project Management, Office of Nuclear Reactor Regulation.
At our request, the staff supplied us with what it deemed to be the source of Mr. Ruben-stein's delegated authority to issue the notice.
See its October 27, 1980 letter to the Secretary to this Board.
We thereupon invited the other parties to the appeals to comment on the staff's letter if they so desired.
Several of them accepted the invitation.
4 On a close study of the matter, we have concluded that Mr. Rubenstein issued the notice within the scope of his authority.
We are constrained to add, however, that not all of the links in the chain of delegation are as ex-plicit as they both might and should have been.
As a general proposition, implied (as opposed to specific) delegations of authority to take certain action invite controversy.
If the end result should be a nullifica-tion of action taken, severe (and unnecessary) prejudice to the interests of those affected thereby may result.
For these reasons, we strongly urge an immediate and careful review of all outstandin; delegations of author-icy within the staff to insure that they leave no room for reasonable doubt respecting who has been vested with what powers.
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dealing with the outer boundaries of the " good cause" inquiry is Cook, ALAB-129, supra.
That case came to us on an appeal f
from an initial decision of the Licensing Board which deter-mined that " good cause" had been established for the extension of a construction permit.
The appellants (intervenors in the j
proceeding) complained of the failure of the Board below to have considered anything other than the reasons which had been l
given for the delay in the completion of construction.
In j
this connection, they insisted that the Board should have al-lowed them to explore, inter alia, whether certain design changes made by the applicant would pose a threat to 'the public health and safety or occasion an adverse environmental impact.
(Those design changes were among the causes assigned by the applicant for the delay.)
Characterizing the issue before us as being whether "the Licensing Board [had] correctly delineated the scope of its in-quiry",12/ we looked first to the terms and legislative history of Section 185 of the Act in search of an answer.
That search proved in vain; as then did our scrutiny of both Section 50.55(b) of the Commission's regulations and the notice of opportun-ity for hearing.
This prompted the conclusion that the " ques-I tion of the precise content of a section 185 ' good cause' in-quiry is entirely res nova".
ALAB-129, 6 AEC at 418-20.
12/
6 AEC at 416.
1
-_~..-.
_. Proceeding on that basis, we undertook to consider the widely divergent views of the parties.
For their part, the applicant and the staff had urged that the Licensing Board had correctly held that all that it could. decide was whether there was a sufficient showing of " good cause" for the failure to complete construction on schedule; as they saw it, a Board may never look beyond the sufficiency of the assigned reasons for the delay.
On the other hand, the intervenors had maintained that the " good cause" inquiry must embrace as well every safety or environmental issue which the need for the extension might suggest.
Id. at 418-20.
We found neither of these lines of argument persuasive.
Each " introduce [d] an unwarranted element of rigidity" into a determination which "obviously is dependent upon the facts of
[ the particular] case" and, accordingly, should be based upon the consideration of those factors suggested by "the totality of the circumstances" confronting the adjudicator.
One essen-tial vice of the thesis of the applicant and the staff was that it could lead to a finding that " good cause" existed to extend the deadline for plant completion even if one or more of the reasons assigned for the delay " cast serious doubt upon the ability of the applicant to construct a safe facility" -- an unreasonable result.
Id. at 420.
The intervenors' proposal
k 17 -
likewise did not comport with " common sense":
The fundamental purpose of that hearing is, af ter all, not to determine the safety or environmental aspects of the reactor in question.
And, in this particular case, the same Licensing Board which conducted this hearing is on the threshold of commencing the hearing which will encompass both the Appendix D construction permit environmental review and the matrer of the issuance of fa-cility operating licenses.
Especially since
)
intervenors will be a full participant in that hearing, it is not readily apparent why a " good cause" hearing -- addressed to whether a construction permit should be. extended --
s must necessarily reach iss.es which can be i
there considered and decidad.13,/
Ibid.
Where this led was to the determination that the intervenors could litigate only those safety or environmental. issues which 3
bo th (1). arose from.the reasons assigned in justification of the request for a construction permit extension; and (2).could not, consistent with the protection of the interests of intervenors or the public interest, " appropriately abide the event of the en-i
. vironmental review - facility operating license hearing".
Ibid.
7 Applying this standard, we. went on to decide that each of the 13/
As early. noted in the Cook ~ decision, the two-unit facil-ity had received its construction ' permits in 1969 with-out an-enviroamental revfew.
Under later-promulgated l
Commission regulations, ic was slated to receive auch a review in conjunction with the operating license proceed-ing. 'See 6 AEC at 414-15.
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issues which the intervenors had sought to inject into the pro-ceeding had been properly excluded by the Licensing Board.
Id.
at 420-22.
B.
Although all of the parties to the appeals at bar look to the Cook decision for guidance, they derive quite different messages from it.
1.
The applicant and the staff take what was there said as (in the applicant's words, Br. pp. 8-9) " clearly indicat[ing]
that any consideration of safety in an extension proceeding is limited to the ' reasons assigned for extension'".
Both of these parties also insist that any other conclusion would undermine the two-step licensing process (construction pernit and operating license) established by Section 185 of the Act.
To quote the applicant once again (Br. p.
11), "[t]he Atomic Energy Act does not require that every safety-related issue be resolved prior to the operating license proceeding.
See Power Resources Develop-ment Co. v. Interrstional Union of Electrical Workers, 367 U.S.
[D]evelopments which occur after the issuance 396 (1961).
of the construction permit are analyzed at the operating license stage and there is no requirement that an adjudicatory proceed-ing consider these issues as they arise".
Beyond those considerations, our attention is directed to the fact that, pursuant to 10 CFR 2.206, the Director of Nuclear J
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Reactor Regulation may be asked at any time to institute under 10 CFR 2.202 a show-cause proceeding looking to the possible modification, suspension or' revocation of a construction permit.
In'this connection, the staff advises us that the Director now has before him such a -request which was founded on the very i
claim of site unsuitability which petitioners press here.
The request was initially filed by the State of Illinois; it has now been joined-in lar the Gary petitioners.
We were told at oral argument by staff counsel that the Director will act 'on it by the end of this year (App. Tr. 45).
2.
The petitioners, and those supporting their position, focus their spotlight upon the language in Cook to the effect that the f actors to be taken into account in making a " good cause" determination should'be influenced by the " totality of the circumstances involved" and considerations of the protection 1
of public and private interests.
See pp. 16-17, supra.
As they. see it, the pertinent circumstances of the present case are not at all analogous to those which were before us in Cook and that a " common sense" approach here precludes the ex-clusion of their contentions simply because unrelated to the reasons assigned for the delay in construction completion.
In this regard, they emphasize that, unlike the Cook intervenors, they are seeking to raise a serious site suitability issue in i
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1 the context of a f acility as to which actual construction has barely begun.
They assert (Gary petitioners' Br. p. 14) that "[i} t simply is contrary to all notions of protection of the public interest to argue * *
- that siting and emergency planning factors at Bailly should be fully considered only af ter the entire plant has been built".
If lef t to the operat-ing licensing proceeding, they predict, those f actors will never receive proper attention; "after full resources are committed to finishing construction at the present site, the Bailly plant will operate regardless of the risk to surrounding populations".
1 bid.
Nor do petitioners perceive the Section 2.206 remedy to be an adequate substitute for the scrutiny of their site suita-bility issue in this proceeding.
This is principally because that Section leaves it to the discretion of the Director whether to grant or deny a request that a show-cause proceed-I' ing be..nstituted.
Further, although "the Commission may on its own motion review" a decision which denies such a request "to determine if the Director has abused his discretioit", no petition asking that it undertake review will be entertained.
7 C.
i.
We can agree with the petitioners up to a point.
To begin with, this case does dif fer from Cook in the re-spects which they note.
In Cook, as we have seen, the issues sought to be injected into the permit extension proceeding had nothing at all to do with the suitability of the site for a nuclear facility.
Here, in sharp contrast, petitioners' con-tentions not merely are addressed to site suitability but, as well, are raised in the setting of an essentially unbuilt plant.
It is true, of course, that the matter of the suitability of the Bailly site from a population density standpoint was litigated extensively in the construction permit proceeding, and that its resolution in favor of the applicant ultimately survived judicial review which reached the Supreme Court level.
See fn.
1, supra.
The petitioners insist, however, that more recent developments have put into doubt the correctness of the result in that proceeding.
Although that may or may not be true, for present purposes we must assume that it is.
Missis-sippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
This being so, we are unimpressed with the argument of the applicant and the staff that petitioners can appropriately be told to withhold their site suitability contentions until 4
e
, the operating license stage has arrived.
It does no disservice to the concept of a two-step licensing process to conclude that, in circumstances such as those at bar, that suggestion offends reason.
Manifestly, if there currently exists substantial cause to believe that the Bailly site is unacceptable, now is the time to explore the matter further -- rather than years hence when, following a substantial additional monetary investment, the fa-cility is nearing completion at that site.
In short, were the operating license proceeding the only alternative vehicle for the airing of petitioners' concerns, we would encounter great difficulty in erecting a barrier, on the strength of anything said in Cook, to the exploration of those concerns in the present proceeding.
To be sure, petitioners do not satisfy the precise test employed in that decision; to re-peat, - their site suitability contentions are not rooted in the reasons assigned for the delay in completing construction.
But that test was tailored to the particular facts of that case.
Neither in terms nor by necessary implication was it offered as an inflexible mold for passing judgment on the litigability in a permit extension proceeding of every variety of contention in every conceivable setting.
Indeed, that it was not intended-to have any such effect is indicated by the importance we attached to l
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3
4 looking at the " totality of the circumstances" and invoking a
" common sense" approach in determining the scope of the " good cause" inquiry in the specific case.
See 6 AEC at 620, 2.
At this juncture, however, our agreement with the petitioners comes to an end.
In our view, the eventual oper-ating license proceeding cannot be said to provide the only other viable forum for the ventilation of petitioners' issue.
To the contrary, Section 2.206 of the Rules of Practice pro-vides an explicit, adequate and immediately available remedy to those who believe there to be newly arising cause why plant construction should be halted well before the operating license stage is reached.
We are equally persuaded that, where that cause has no discernible relationship to any other pending pro-ceeding involving the same facility (e.g., one concerned with pe rmit extension), the Section 2.206 remedy must be regarded as exclusive.
a.
In authorizing "any person" to file a request for the institution of a show-cause proceeding under Section 2.202 "to modify, suspend, or revoke a license or for such other action as may be proper", Section 2.206 does not place any limitations upon either the timing of the request or the grounds.which may
~
be assigned for seeking such relief.
And, although at one time
i F 4 P
the institution of a show-cause ' proceeding had to be predicated upon alleged license violations,14/ Section 2.202 was broadened I
l-in 1963.E/ ~As it reads today, the Section permits the Director of Nuclear Reactor Regulation to base the proceeding upon any
" facts deemed to be sufficient grounds for the proposed action" l
(e.g., license modification, suspension or revocation).
Thus, as no one appears to dispute, the petitioners were authorized by Section 2.206 to request, and the Director is j
authorized by Section 2.202 to initiate, a show-cause proceed-ing to examine-the very site suitability matter which is sought to be injected into ' tie permit extension proceeding.
And it is i
equally manifest that, should a' hearing be ordered on such a 1
request, the participational rights of the parties to it will i
be no different than in any other type of adjudicatory proceed-1 ing (including that now before us).
The same may be said with 4
regard to the allocation of the burden of persuasion:
it is i
settled "that the Atomic Energy Act intends the party seeking i
to build or operate a nuclear reactor to bear the burden of proof in any Commission proceeding bearing on its application to do-so, including a 'show cause' proceeding".
Consumers I
14/
See 27 Fed. Reg. 377, 380 (January 13, 1962).
- 15/. See;28 Fed. Reg. 10151, 10153 (September 17, 1963).
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25 -
Power Co. (Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101, 105 (1976).
As previously noted (p. 19, supra), the Director will act shortly upon the pending Section 2.206 request, which both has the Gary petitioners' endorsement and parallels their site suitability contention.
In these circumstances, it obviously is neither appropriate nor possible for us to forecast what re-sult will obtain; needless to say, that will depend upon the Director's weighing of all relevant factors in light of informa-tion in his possession which is not within our ken.
We are pre-pared, however, to record our confidence that, whatever the out-come, it will be preceded by a careful and responsible evaluation of the claims underlying the request.
The petitioners have sup-plied no basis to presume that the Director is any less sensitive than are they to the undesirability of allowing construction of a nuclear facility to proceed on a site in the teeth of substan-tial cause to believe that that site -- sooner or later -- will have to be declared unsuitable from a safety standpoint.
Should the Director find the Section 2.206 request lacking in merit, he will be obliged to set forth in writing his reasons for that finding.
Section 2.206 (b).
As petitioners emphasize, if dissatisfied with those reasons they will have to rely 4
i.
e6 -
upon the Commission to undertake review sua sponte.
Although the Commission might have entitled those adversely affected by a Director's decision either to take an appeal from it or seek discretionary review, it chose to do neither.
The compelled inference is that, after mature consideration, the Commission concluded that in circumstances where (as here) a person deems there to be warrant for taking action against a construction permit or other license, he should be given the opportunity to press his claim before the Director without further avenues of redress as a matter of right, Although petitioners may not concur in that conclacion, it must be respected.
Moreovery contrary to their seeming belief, we know of no authority -- and petitioners point to none -- for the proposition that the sufficiency of an avail-able remedy rests upon the extent, if any, to which the de-termination of the initial decisionmaker is subject to further challenge on a higher level.
It might be added in this connection that, in order to pass an informed judgment on whether warrant exists to review a particular denial of a Section 2.206 request on its own mo-tion, the Commission must necessarily examine the grounds assigned by the Director -- and, in most cases at least, the
+
e p.
.c
. a underlying papers as well.--16/
We scarcely would be justified in presuming that this task is not faithfully discharged.
Further, there is every reason to think that, were the Director to turn down the Section 2.206 request here, that action would receive especially close scrutiny.
The Bailly facility has, after all, been the subject of an exceptional amount of atten-tion over the years -- much of which has been directed to the suitability of the site given the population density of the surrounding area.
This is not to say that tr Commission would -- or indeed should -- overturn a Director's denial here.
Once again, whether petitioners' claims are colorable enough to justify adjudication in a formal proceeding is not a fit subject for our conjecture.
All that we suggest is that those claims undoubtedly will receive the measure of consideration due them in the event that the Director's action calls upon the Commission to'look at the matter itself.
b.
It does not necessarily follow from its availability that the Section 2.206 remedy is invariably exclusive.
In fact, Cook teaches that it is not.
The issues which the intervenors 16/
Our understanding of Ccramission practice is that such denials are treated in much the same fashion as are l
Appeal Board decisions which are before the Commission l
for possible sua sponte review under.10 CFR 2.786(a) although the standard for undertaking review differs in the two instances.
28 -
there sought to litigate in the permit extension proceeding could equally have been raised by way of a request for a show-cause order.
Yet, that f actor played no part in our decision.
Rather, as previously seen, we took the controlling considera-tion to be whether the then upcoming hearing in the environ-mental review-operating license proceeding was a suitable forum for the ventilation of the intervenors' issues.17/
Once again, however, each of those issues was directly tied to the reasons why construction could not be completed on schedule.
There was consequently no occasion in Cook to addrest, lat alone decide, whether the Section 2.206 remedy is exclusive in circumstances where, as here, the supervening developments alleged to warrant termination of reactor con-struction concededly have nothing whatever to do with the need for the permit extension -- and thus cannot be said to evolve naturally from the extension application which is the source of the proceeding.
We have been provided no compelling reason why it is not totally appropriate in such circumstances to leave petitioners' concerns for possible consideration in a show-cause proceeding.
Indeed, that conclusion comports with the " common sense" J
17/
The Section 2.206 remedy received but fleeting mention, and then in.a quite different context.
See 6 AEC at 420.
. approach championed in Cook.
As there observed (see p.
17, supra), a peanit extension proceeding is not convened for the purpose of conducting an open-ended inquiry into the safety and environmental aspects of reactor construction and opera-tion.
Yet that is precisely what the proceeding would become were an cpen invitation given to those in petitioners ' situa-tion to freight it unnecessarily with matters far removed from those events which led to its commencement.18/
For the reasons above stated, the denial of the inter-vention petitions of the City of Gary, Indiana, et al. and George Schultz is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD b. Ou h3 C. J(en Bishop
\\
Secretary to the Appeal Board 18/
We neither reach nor intimate any opinion regarding the basis of decision below on the intervention question.
See p. 7, supra.
Nor do we pause to examine whether the considerations which persuaded the Licensing Board that the petitioners ' contentions were not litigable in this proceeding do or do not come into play insofar as the determination of the Section 2.206 request is con-cerned.
That is for the Director and the Commission to decide.
It is enough to observe that, if those consid-erations in and of themselves preclude the present exam-ination of emergency planning in a show-cause proceeding, it would appear almost inevitably to follow that they would likewise bar such examination in this permit exten-sion-proceeding.
.. _.