ML19347F129
| ML19347F129 | |
| Person / Time | |
|---|---|
| Issue date: | 05/05/1981 |
| From: | Hendrie J NRC COMMISSION (OCM) |
| To: | Bevill T HOUSE OF REP., APPROPRIATIONS |
| References | |
| NUDOCS 8105150303 | |
| Download: ML19347F129 (4) | |
Text
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NUCLEAR REGULATORY COMMISSION ~
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May 5, 1981 cwAmuru
' So mAy 3,1198;' 1 Y-e The Honorable Tom Bevill, Chairinan 8
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Committee on Appropriations United States House of Represer.tatives t
Washington, D. C.
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Dear Mr. Chairman:
This letter is in response to your request for r.;y personal views on the benefits, possible problems, and any questions of interpretation of the three general provisions included in your supplemental appropriations bill for FY 1981.
These general provisions liniit the availability of fund.s for certain matters in NRC hearings.
First General Provision "No funds available to the Nuclear Regulatory Commission may be used to consider in public proceedings on nuclear powerplant operating license requests the following matters considered and resolved in the granting of a construction permit:
need for power, the site or location of the nuclear powerplant, the financial qualification of the applicant or the matter of alternate energy sources."
Elimination of the matters cited from operating license proceedings would result in some modest savings of time in the hearings and, more important, the staff resources now needed to support litigation of these matters. The need for power issue is raised in about one third of the operating license hearings.
It generally takes a day of hearing time.
Site and location are generally not raised as issues at the operating license stage.
Financial qualifications issues are raised in about one half of the ope! rating license hearings and take about. two days of hearing time.
I have long felt that these issues should be settled in the construction permit proceedings and have no useful place in the operating license proceedings. A plant that is already constructed cannot be moved and will certainly be used.
And the financial qualifications of the applicant can only be enhancec' by plant operation.
The Commission has recently started several efforts that would lead to elimination or substantial narrowing of these matters as issues in operating license proceedings.
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l 8105150303
The Honorable Tom Bevill, Chairman I would not expect any problems, or delays in hearings, as a result of implementation of this provision, with one possible exception.
That involves the words "and resolved" in connection with financial qualifications issues.
In our construction permit proceedings the financial qualification issue is limited to the applicant's -tinancial resources to build the plant, and does not deal with the applicant's financial resources to operate the plant.
It thus could be argued that the provision as worded does not eliminate financial qualification issues connected with operation.
To avoid any question as to the meaning of the provision, I suggest that the words "and resolved" be deleted.
It seems to me that the Committee's intent is clear but I have been warned that the likely judicial inter-pretation would be to allow financial qualifications matters pertinent to plant operation to be litigated unless the deletion is made.
Second General Provision "No funds available to the Nuclear Regulatory Commission may be used hereafter to admit or consider any contentions in public proceedings unless the party offering the contention supports it with a prima facie evidentiary showing of substantial and specific facts, not in the nature of conclusionary allegations, and supported by affidavits of persons having personal knowledge of the facts therein."
This provision substantially raises the threshold for admissibility of contentions. The benefit in terms of reduced hearing time and staff resou'rces to support litigation could be substantial in cases where the hearing boards have not yet begun to rule on the admission of contentions.
As a very rough guess, at least half of the contentions now admitted in proceedings would fail the test mandated by this provision.
I would not expect hearing times or staff resource requirements to be reduced propor-tionately, but the savings would still be substantial.
The provision would also have the generally beneficial effect of focusing attention in hearings on serious safety or environmental issues where the parties raising the issues are fully prepared to support their arguments.
There would be,some problems, and delays, in proceedings that are already past the point where boards have begun to rule on the admissibility of contentions.
In these cases, boards would have to invite motions to strike (or support) previously. admitted contentions that partie thought were excluded (or admissible) under the new standard.
What with arguments for and against and time for boards to consider and decide on each contention, I estimate one to two months delay in cases where contentions have already been admitted.
I have not had time for a ' detailed check of the cases where this problem would arise,'but suspect that the McGuire, Diablo Canyon, and Three Mile Island Unit 1 restart proceedings would be a
The Honorable Tom Bevill, Chairman most seriously affected and that Summer and San Onofre would be in this situation in a month or two.
There may be some operating license amendment proceedings that are also at this stage, but the main concern is with the operating license ~ and TMI-1 restart cases.
A solution, in part at least, would be to make the provision prospective and not retroactive by deleting the words "or consider." This would leave contentions that have been admitted to be litigated "as is" but would apply the new standard to contentions that have not been admitted as of the date of enactment of the bill.
Third General Provision "No funds available to the Nuclear Regulatory Commission may be used for the consideration of issues in public proceedings on operating licenses not placed in contention by parties to such proceeding."
This provision eliminates the authority of boards to raise issues in operating license proceedings where no party has raised them, the sua sponte ' power given boards in 1975 by the Commission.
The savings of hearing time that woulo result are meaningful, although less than from the second provision.
Boards have exercised this power about 14 times since 1975, with up to four days of hearing time per issue expended and with a rather large staff effort needed in at least one case to support the litigation.
Recent practice suggests an increasing tendency of boards to exercise the sua sponte power.
This provision is consistent with the view that the role of boards in operating license proceedings is to decide matters properly placed in contention by the parties and is not to conduct yet another review of the application for an operating license.
I would not expect any hearing delays or problems in implementing this provision.
The provision would prevent the Commission from raising an issue itself and then referring the issue to a board for litigation.
It would not prevent the Commission from dealing with a self-generated issue, however, since the Commi'ssion could discuss the issue directly~ with the staff and direct whatever r'emedies it felt appropriate.
Also, because States are entitled to special status in our proceedings, where they request it, and are then not considered " parties," the provision would prevent litigation of any issue raised only by a State holding this status.
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The Honorable Tom Bevill, Chairman In this p' ovision, as well as in the other two provisions, I interpret r
3 "public proceeding" to mean public adjudicatory proceedings.
Thus, I-would not expect these~ provisions to apply to Commission public meetings or public meetings of the staff or the Advisory Committee on Reactor Safeguards, or to rulemaking or enforcement proceedings.
I believe this interpretation to be consistent with the Committee's intent.
Mr. Chairman, I hope that this letter is responsive to your request.
Please let me know if I can be of help in obtaining more detailed information on these matters.
Sincerely, Jos h M. Hendrie cc:
Rep. John T.~ Myers 1
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