ML20003A433
| ML20003A433 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 01/30/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102030680 | |
| Download: ML20003A433 (9) | |
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1/30/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LIGHTING & POWER COMPANY
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Docket No. 50-4 m
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c'EN (Allens Creek Nuclear Generating
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Station, Unit 1)
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NRC STAFF RESPONSE TO TEXPIRG'S MOTION FOR DIRECTED CERTIFICATION fy eSid'guren 4
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INTRODUCTION On January 15 Intervenor TEXPIRG served on NRC Staff counsel a docucent entitled "TEXPIRG'S Motion and Request To: A.
Licensing Board For Interlocutory Appeal Per 2.730(f) and Certification of Question Per 2.718(i) and B.
Appeal Board For Directed Certification Per Seabrook Decision, ALAB 271,1 NRC 478, 482-83" (Motion). This Motion which was filed with both the Licensing Board and the Appeal Board requests that three questions (each related to the central TEXPIRG concern that the NRC be required to consider at this time Class 9 accidents for Allens Creek, Unit 1) be considered by the Appeal Board either by way of referral by the Licensing Board of a rulino on this matter dated September 15, 1980, pursuant to 10 C.F.R. 5 2.730(f) or by way of directed certification pursuant to 10 C.F.R. 5 2.718(i).S By Order da?.ed January 19, 1981, the
_lf The three questions that TEXPIRG seeks this Board to consider by way of refusal or certification are:
1.
Does NEPA require that Class 9 accidents be considered for all NRC construction permits since NEPA became law?
2.
Does the NRC Interim Policy announced on June 13, 1980 require NRC Staff to consider Class 9 accidents for Allens Creek because its NEPA review is ongoing, i.e., no construction permic has been issued, no hearing has started on NEPA issues, no construction has been done, no decision on siting has been made on alternative siting, no final supplement to consider alternative siting has been completed, and when the motion was made no supplement on alternative sites had been made?
FOOTNOTE CONTINUED ON NEXT PAGE 81020306So G
Appeal Board stated that it would withhold any action on the directed certification portion of the Motion pending this Board's determination on the matter of referral of its September 15, 1980 ruling pursuant to 10 C.F.R. 5 2.730(f).
For the reasons set forth below the NRC Staff opposes TEXPIRG'S request that this Board refer for interlocutory review, pursuant to 10 C.F.R. 6 2.730(f)', its September 15, 1980 ruling.
II.
BACKGROUND On July 24, 1980, Intervenor TEXPIRG served a motion entitled "flotion for Directive That a Supplement to the Allens Creek E.I.S. Be Prepared Re:
Class 9 Accidents." In this motion TEXPIRG requested the Licensing Board to direct the NRC Staff to prepare immediately a supplement to the Final Environmental Statement (FES) for Allens Creek Nuclear Generating Station (ACNGS) which adequately and thoroughly addresses this impact of worst-case accidents, and other accidents referred to in tne FES for ACNGS as " Class 9."
This request was based on the Nuclear Regulatory Comission's recent interim policy statement regarding Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (45 Fed. Reg. 40101, June 12, 1980), a letter dated March 20, 1980, to the NRC from the CEQ, and the National Environmental Policy Act. S The Atomic Safety and Licensing Board denied that request in its Memorandum and Order of September 15, 1980.
Intervenor took no action J/ FOOTNOTE CONTINUED FROM PREVIOUS PAGE 3.
Do the circumstances of Allens Creek require the Staff to identify it as an additional case where early consideration of either additional features or other actions which would prevent or mitigate the con-sequences of serious accidents must be considered in order to conform to the Commission Interim Policy?
_2/ Class 9 accidents must be considered prior to issuance of an operating license for this facility in the environmental impact statement predicate to that license.
See NRC Policy Statement, " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969.
45 Fed. Reg. 40101 (June 13, 1980).
to seek review of that order until the instant motion was filed on January 15, 1981.
III DISCUSSION Referral of this Board's September 15, 1980, Ruling Is Inappropriate Because TEXPIRG Has Failed To Demonstrate That A Prompt Decision Is Necessary To Prevent Detriment To The Public Interest Or Unusual Delay Or Expense The authority of this Board to refer its September 15, 1980, ruling to the Appeal Board to obtain a detennination of the correctness of that ruling is set forth in 10 C.F.R. 5 2.730(f) of the NRC Comission's Rules of Practice. 3 This section provides in part:
No interlocutory appeal may be taken to the Commission from a ruling of the presiding officer. When in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer may refer the ruling promptly to the Comission.
[ Emphasis added]
TEXPIRG has failed to show any of the conditions set forth in this rule have been met so as to allow the Board to refer the subject ruling for appellate review.
The Appeal Board stated in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,1192 (1977):
Almost without exception in recent times, we have under-taken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely
_y See P_ublic Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482 (1975).
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i affected by it with immediate and serious irreparable impact which, as a practical matter could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
[ Emphasis added]
See also Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-593, 11 NRC 761, 762 (1980) (This case concerned allegations of extreme harassment during discovery.); Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572,10 NRC 693, 696, (1979) (where the Board stated that any error of the Board can be alleviated by later appeal). The Appeal Board there cited at 10 NRC 695,
- n. 5, examples of where it granted requests for discretionary interlocutory review updating the list in Marble Hill, supra, 5 NRC at 1192, (n. 7.
The fact that TEXPIRG has waited four months to file for the instant relief is indicative of the lack of the need for a i 2.730(f) " prompt decision." 4
__g The failure of TEXPIRG to explain the lapse of time was noted by the Appeal Board in its January 19, 1981 Order in this proceeding, at 2.
Moreover, although no specific times are set out in the rule for the request to certify an adverse ruling to an Appeal Board, it is plain this motion coming some 4 months after the ruling complained of is untimely. The first paragraph of Appendix A to 10 C.F.R. Part 2 states proceeding shall be conducted expeditiously.
Appeals must be taken within 10 days.
10 C.F.R. El 2.714a and 2.762.
Petitions for recon-sideration must be filed within 10 days.
10 C.F.R. 5 2.771. The four-month hiatus between the ruling and the application for certification of itself makes the application untimely, and it should be denied for that reason alone.
As the Comission has indicated, an excuse for tardiness will be weighed in determining whether to allow a belated assertion of right.
See Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
Here, no excuse is given for the untimeliness in seeking certification, and again the motion must be denied for this reason.
. The pleading itself also fails to demonstrate any need for a " prompt decision" from the ppeal Board. TEXPIRG alleges the existence of exceptional circumstances, public interest and effect of delay (Motion, at 2 and 3).
Each of these concerns is based on the supposition that absent a referral and a favorable decision on interlocutory appeal the plant will be constructed at considerable cost, and that this matter of Class 9 accidents and other matters pertaining to viable alternatives will be effectively foreclosed due to the facility's advanced degree of construction at the operating license stage.
(Id.) This argument ignores the fact that TEXPIRG has a right to take an appeal to the Board's construction permit initial decision pursuant to 10 C.F.R. t 2.762 E/ on the basis of the Board's September 15, 1980 ruling.
Review of the ruling could then be sought prior to construction which would allegedly foreclose alternatives. A stay of the construction permit may be applied for during such an appeal.
See 10 C.F.R. 5 2.788.
- Further, Appendix B to 10 C.F.R. Part 2 presently suspends 10 C.F.R. 5 2.764. 44 Fed.
Reg. 65049 (November 9,1979), and provides for sua sponte appellate consideration of whether a stay should be issued of a Licensing Board decision before the Licensing Board decision becomes effective.
Thus again no interlocutory appeal is necessary to present " detriment to the public interest 5
_/ 10 C.F.R. 5 2.762 provides, in part:
(a) Within ten (10) days after service of an initial decision, any party mcy take an appeal to the Commission by the filing of exceptions to that decision or designated portions thereof.
. or unusual delay er expense..." (10 C.F.R.12.730(f)) even if the ruling complained of was in error,S and it could be shown that harm would be suf-feredbythemovantbyastartofconstruction.1 Further, the alleged ham that would result from a Class 9 accident could obviously occur only after the facility is operating. To obtain an operating license, further administrative action is needed including the consideration of the impacts of a Class 9 accident and the issuance of the operating license environmental impact statement.
See fn. 3, supra.
-6/ As the Staff has briefed to the Board in "NRC Staff's Response to TEXPIRG's Motion That A Supplement to the Allens Creek EIS be Prepared; Re: Class 9 Accidents," of August 13, 1980, the Commission Policy Statement " Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969," 45 Fed. Reg. 40101 (June 13,1980), provided that fomerly prepared environmental impact statements need not be amended to consider Class 9 accidents.
_7f Inconvenience or added cost to participants is not a ham that will allow early appeal of an issue.
Cf. Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277,1 NRC 539, 551 (1975).
Consumers Power Co. (Midland Plant, Units 1 & 2), 5 NRC 772, 779, ALAB-395, (1977).
Further, as indicated in cases involving stays, costs on risks of expenditures to other parties does not present a ground for another party to seek relief. See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2 ALAB-404, 5 NRC 1185,1188 (1977).
In sum TEXPIRG has failed to assert any reason why a " prompt decision" is appropriate in this case. Accordingly, the NRC Staff submits that the proceeding should be allowed to run its natural course and the September 15, 1980 ruling of Licensing Board should await normal appellate review.
No cause exists to refer or certify the subject question to the Appeal Board.S IV.
CONCLUSION For the above reasons, the Staff urges the Board to deny TEXPIRG's Motion.
Respectfully submitted, p
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Henr
'McGurren I#1 Counsel for NRC Staff Dated at Bethesda, Maryland, this 30th day of January,1981.
J The movant's citation of Andrus v. Sierra Club, 442 U.S. 347 (1979) is gratutious. The CEQ has encouraged to consider Class 9 accidents, in environmental impact statements, and of course such consideration-shall be had before the plant is licensed to operate. See fn.
, supra.
UNITED STATES OF AMERICA NUCLEAR REGULATURY COW 11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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It0VSTON LIGHTING & POWER C0ftPANY Docket No. 50-466 (Allens Creek Nuclear Generatinq
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Station, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO TEXPIRG'S MOTION FOR DIRECTED CERTIFICATION" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this 30th day of January,1981:
Sheldon J. Wolfe, Esq., Chairman
- Susan Plettman, Esq.
Atomic Safety and Licensing Board Panel David Preister, Esq.
U.S. Nuclear Regulatory Commission Texas Attorney General's Office Washington, DC 20555 P.O. Box 12548 Capitol Station Dr. E. Leonard Cheatum Austin, Texas 78711 Route 3 Box 350A tlatkinsville, Georgia 30677 Hon. Jerry Sliva, Mayor City of Wallis, Texas 77485 Mr. Gustave A. Linenberger
- Atomic Safety and Licensing Board Panel Hon. John R. Mikeska U.S. Nuclear Regulatory Commission Austin County Judge
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Washington, DC 20555 P.O. Box 310 Bellville, Texas 77418 Mr. John F. Doherty 4327 Alconbury Street Houston, Texas 77021 J. Gregory Copeland, Esq.
Baker & Botts One Shell Pla:a Houston, Texas 77002 Mr. F. H. Potthoff, III Jack Newman, Esq.
1814 Pine Village Lowenstein, Reis, Newman & Axelrad Houston, Texas 77080 1025 Connecticut Avenue, N.W.
Washington, DC 20037 D. Marrack 420 Mulberry Lane Carro Hinderstein Pellaire, Texas 77401 8/39 Link Terrace llouston, Texas 71025
Texas Public Interest Margaret Bishop Research Group, Inc.
J. !iorgan Bishop c/o Janes Scott, Jr., Esq.
11418 Oak Spring 13935 Ivymount Houston, Texas 77043 Sugarland, Texas 77478 Brenda A. McCorkle 6140 Darnell Houston, Texas 770/4 Mr. Wayne Rentfro P.O. Box 1335 Rosenberg, Texas 77471 Stephen A. Doggett, Esq.
Pollan, Nicholson & Doggett Rosemary N. Lemmer P.O. Box 592 11423 Oak Spring Rosenberg, Texas 77471 Houston, Texas 77043 Bryan L. Baker
,1923 Hawthorne Houston, Texas 77098 Robin Griffith Leotis Johnston 1034 Sally Ann 1407 Scenic Ridge Rosenberg, Texas 77471 Houston, Texas 77043 Atomic Safety and Licensing
- Appeal Board U.S. Nuclear Regulatory Comission Washington, DC 20555 Atomic Safety and Licensing
- Board Panel U.S. Nuclear Regulatory Commission Mr. '4illiam Perrenod Washington, DC 20555 4070 tierrick Houston, TX 77025 Docketing and Service Section
- Office of the Secretary Carolina Conn U.S. Nuclear Regulatory Comission 1414 Scenic Ridge Washington, DC 20555 Houston, Texas 77043 lir. William J. Schuessler U.S. Nuclear Regulatory Comission 5810 Darnell Region IV Houston, Texas 77074 Office of Inspection and Enforcement 611 Ryan Plaza Drive The lionorable Ron Waters Suite 1000 State Representative, District 79 Arlington, Texas 76011 3620 Washington Avenue, No. 362 Houston, TX 77007 Edwin J. Reis Counsel for NRC Staff