ML19347E272
| ML19347E272 | |
| Person / Time | |
|---|---|
| Site: | La Crosse File:Dairyland Power Cooperative icon.png |
| Issue date: | 04/21/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Hiestand O MORGAN, LEWIS & BOCKIUS |
| References | |
| ALAB-618, ISSUANCES-SC, NUDOCS 8104240487 | |
| Download: ML19347E272 (3) | |
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O. S. Hiestand, Jr., Esq.
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Dear Mr. Hiestand:
This is to inform you that the time provided by NRC regulations within which the Commission may act to review the Appeal Board decision (ALAB-618) in this docket has expired.
The Co= mission, by a vote of 2-2, has decided not to take review.
Chairman Hendrie believed that the Commission should have reviewed the Appeal Board's decision.
Attached are his views, in which Co= mis _sioner Ahearne concurs.
Co=missioner Gilinsky provided the following co==ent:
"The Appeal Board's ruling on the scope of the hearing is correct.
However, it seems wasteful to litigate the Lacrosse SSE twice.
I would direct the Licensing Board, in con-junction with the Director, NRR, to advance the date of the SEP hearing on the SSE and to delay making a decision on the need for a dewatering system until the SSE is determined.
The Licensing Soard should report to the Commission the arrangements it makes.
At this point, I would be inclined to permit l
Lacrosse to operate until the Board and the Director i
have reported back on their arrangement to the Commission."
l Accordingly, the decision became' final agency action on April 13, 1981.
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Attachment:
damue J.N hilk Separate Views of Secretary of the Commission Chairman Hendrie 7
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Service List 3
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In my opinion,'the Commission should have reviewed the Appeal Board decision in ALAB-618 because it appear: to be inconsistent with the l/
Commission's previous decision in Marble Hilt.and raises substantial questions regarding the allocation of stafi resources.
The Director's Order initiating this proceeding was premised on the potential seismic hazard from an earthquake producing a maximum
. acceleration of 0.12g and limited the proposed remedy ta the design and installation of a site dewatering system to preclude the occur-rence of liquefaction in the event of an earthquake of that magnitude.
Moreover, the Director's analysis of the seismic risk of interim operation was also premised on the maximum acceleration value of 0.129 In view of these aspects of the Director's decision, I cannot agree with the Appeal Board's strained characterization of the issues for hearing as simply whether a site dewatering system should be designed and installed by a particular date.
This interpretation of the issues in the Director's Order appears to be the result of reading the i.ssues in a vacuum instead of in the context of the entire Order. Moreover,
-I do not agree with the Appeal Board's conclusion that no additional remedy would be required by expanding the scope of the hearing. The remedy proposed in t.h Director's Order is not simply the installa-tion of a' dewatering system, but the installation of a system designed
'-1/Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 anc 2), CLI-80-10,~il NRC 438 (1980).
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2 for a specified maximum ground acceleration.
Thus, the scope of relief in the Director's Order would be exceeded if the Licensing Board were to determine that the Safe Shutdown Earthquake at Lacrosse would cause a grour.d acceleration greater than 0.12g and would then order the installation of a site dewatering system to prevent lique-faction in the event of such an earthquake.
Frr these reasons, I believe that the Appeal Board's decision in ALAB-618 improperly expanded the scope of this proceeding beyond the issues in the Director's Order. This decision affects not only the litigation of seismic issues at thCrosse, but may also affect litigation in other proceedings by encouraging participants in those proceedings to argue for expansive interpretations of issues as formulated in Directors' Orders.
One ur. desirable result may be a reluctance on the part of the Office Directors to issue show cause orders in the future because of uncertainty that the resulting litigation can be kept to the points raised by the Directors.
This is a result our Marble Hill decision was intended to avoid.
Another undesirable result is that by expanding the scope of the proceeding, staff resources will be committed to further litigation that is, as I understand the case, unnecessary at this time.
Particularly when staff resources are strained due to external circumstances, as they 4
are at present, the Commission should be vigilant.regarding Board decisions which could affect resource allocations.
Therefore, I would have taken review of this decision.
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