ML20003F631
| ML20003F631 | |
| Person / Time | |
|---|---|
| Site: | McGuire, Mcguire  |
| Issue date: | 04/20/1981 |
| From: | Lazo R Atomic Safety and Licensing Board Panel |
| To: | CAROLINA ENVIRONMENTAL STUDY GROUP |
| References | |
| ISSUANCES-OL, NUDOCS 8104230241 | |
| Download: ML20003F631 (6) | |
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, ATOMIC SAFETY AND LICENSING BOARD D
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/ej j'ye fje,!eneury APR 2 21981 Before Administrative. Judges:
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Robert M. Lazo, Esquire, Chaiman p.pmc
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Emmeth A. Luebke, Ph.D.
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Richard F. Cole, Ph.D.
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Docket Nos. 50-369-OL DUKE POWER COMPANY 50-370-OL (William B. McGuire Nuclear Station,
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Units 1 and 2 -- reopened
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April 20, 1981 Operatinglicenseproceeding)
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MEMORANDUM AND OPDER (Denjing CESC's Motion For Certification or Referral To The Commission)
On November 25, 1980, the Atomic Safety and Licensing Board (Licensing Board) granted CESG's motion to reopen the hearing record in the above identi-fied matter to consider four new contentions, all related to hydrogen genera-tion and control arising out of the TMI-2 accident. Previously on September 30, 1980, Duke Power Company (the applicant) had filed a motion for sumary disposi-tion regarding its application for a license authorizing fuel loading and low power testing.
In its November 7,1980 response to applicant's motion for summary disposition, CESG moved to add two additional contentions.M After its
-1/ CESG proposed Contention 5 states: "Under current practice the NRC is required to issue an environmental impact statement as to the consequences of Class 9 accidents. Such an environmental impact statement is required for McGuire."
CESG proposed Contention 6 states:
"The emergency olan for McGuire must, due to the special circumstance of close proximity co a large population center, be reviced to provide an emergency response for the city of Charlotte in the event of a Class 9 accident."
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. initial filing of November 7,1980, CESG was_given the opportunity to brief the matter by the Licensing Board, and on January 21, 1981, CESG filed-"CESG's Memorandum in Support of Motion to Add Further Contentions" (CESG Memorandum ).
Both ApplicantU and the NRC StaffE opposed CESG's motion to add further contentions.
On February 13, 1981, the Licensing Board issued its " Memorandum and Order (Denying CESG's Motion to Add 'Further Contentions')." Thereafter, on March 2,1981, CESG filed an objection to the Licensing Board's Mercrandum and Order and a request for certificatior. by the L.icensing Board to the Comission pursuant to 10 C.F.R. 12.718(i) or for referral by the Licensing Board to the Co=ission pursuant to 10 C.F.R. 52.730(f).O Timely responses were filed by the Applicant and the NRC Staff on April 6,1981.
2/ " Applicant's Response to CESG's Memorandum in Support of Motion to Add Contentions" (February 2, 1981).
-3/ "flRC Staff Response to CESG's Memorandum in Support of Motion to Add Further Contentions" (February 2, 1981).
-4/ "CESG's Objection to Memorandum and Order of February 17, 1981 and Motion for Certification or Referral to the Cornaission" (March 2,1981)
("CESG Motion"). The Licensing Board Order is dated February 13, 1981, but CESG's motion refers to it by the service date of February 17, 1981.
On March 10, 1981, based on a stipulation among the parties, the NRC Staff requested time of ten (10) days after close of the hearings to respond to CESG's motion for certification or referral. Tr. 4003.
For this purpose the record in the reopened hearings was closed on March 25, 1981. Thus, the due date for response, as clarified with the Licensing Board during the telephone conference call on March 25, 1981, was April 6, 1981.
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- Interlocutcry appeals to the Cocnission may net be taken from a ruling cf the presiding officer, except where in the judgcent of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer =ay refer the ruling +w the Comission.10 C.F.R. 5 2.730(f). A presiding officer has discretionary authority to certify questions to the Cocnission for its deter =ination.
10 C.F.R. 5 2.718(i)
The recent decision of the Atecic Safety and Licensing Appeal Board -
(" Appeal Ecard") in the Allens Creek case on the s re issue, that is, prepar-ation of a Class 9 accident envircreantal supplement under the Ccrnission's
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Rf Statement of Interic Policy,2 discusses interlecutcry ap::eals quite clearly.2 The A peal 5 card in Allens Creek reiterates the Ccmission's long-standing rule on intericcutory appeals, qucting frc= Public Service Co. of Indiana (Marbie Hill Nuclear Generating Station), ALA3 405, 5 NRC 1190, 1192 (1977):
j_/ 45 Fed. Reg. 40101. June 13,1980
-6/ Housten Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-535, Slip Op., March 10, 1981.
In Allens Creek, intervencrs filed a docu=ent censisting of a =ction to tne Licensing Ecard for " Interlocutory A:: peal per 2.730(f) and Certificatien of Question per 2.718(i)" and a rction to the A: peal Scard for directed certificaticn. The Licensing Ecard denied the cticn addressed to it by Mecorandtn and Order dated March 2, 1981 (unpublished) and the Appeal Board denied directed certification by ALAS-535.
. Almost without exception in recent times, we have undertaken discretionary interlocutory review 'on19 where the ruling below either (1.) threatened the party adversely 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.
Zn Allens Creek, the Appeal Board points out that the fact that the licensing Board's ruling on a significant matter might, on appeal, be found to be erroneous and lead to vacation of the initial decision and remand to the
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Board below does not constitute sufficient ground, standing alone, for inter-locutory appeal.
With respect to certification to the Commission, the Appeal Board has indicated that in the exercise of its very clear authority to certify matters to the Commission under 10 C.F.R. 12.785(d) that:
'[S]uch authority should be exercised sparingly.' See e.o.,
Vennant Yankee Nuclear Power Corp.
(Vemont Yankee NucTear Power Station), ALAB-211, 7 AEC 982, 984 (1974); Consolidated Edison Co. of New York (Indian Point Nuclear Generating Station, Unit 3), ALAB-186, 7 AEC 245, 246 (1974) and cases there cited.
Thus '[a]bsent compelling reason, we will decline to certify a question to the Commission.' ALAS-211, supra,7 AEC at 984.
Vement Yankee Nuclear Power Corp.
(Vemont Yankee Nuclear Power Station) and Public Service Co. of New Hampshire (Seabrook Station Units 1 and 2),
ALAB-421, 6 NRC 25, 27 (1977).
While these cases are cast in terms of the Appeal Board's exercise of its discretionary review function and in tems of the Appeal Board certification to the Comission under its authority pursuant to 10 C.F.R. 82.785(d), we i
believe that they articulate the appropriate standards for us to use in our CESG's determination of whether r,eference or certification is warranted.
motion fails to satisfy these standards.
CES3's request for interlocutory review by motion for certification or referral does not meet the two-part test for interlocutory review of a LicensingBoardruling.E The motion is devoid of any discussion of imediate and " serious irreparable impact" to it from the Licensing Board's ruling denying admission of the two contentions. Nor does it present any argument that the, basic structure of the proceeding was affected in a pervasive or unusual manner by the Licensing Board's ruling.
Further, there is no attempt to demonstrate that appellate scrutiny of the Licensing Board's ruling cannot abide the event of the initial decision if it is unfavorable to CESG. CESG's motion, simply stated, asserts that, if the Licensing Board's interpretation of the Comission's Statement of Interim Policy is correct, then the Comission's policy is contrary to NEPA.
It should be noted that Intervenor has had an opportunity to raise tha issue, for the Comission has provided a forum upon the showing of special circumstance. The pleadings in the instant case and the Board's decision on February 13, 1981, clearly demonstrate that Intervenor has made no such showing.
This failure weighs heavily against its request for certification or referral.
This is not a case where rejection of CESG's additional Contentions 5 and 6
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affects CESG's standing as a party before the Licensirig Board because such Imed-rejection would lead to ultimate denial of the intervention petition.
iate appeal would be pennitted in such a case.
6-ORDER For all the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 20th day of April,1981
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ORDERED That the motion of CESG for certification or referral to the Comission of the Licensing Board's February 13, 1981 Memorandum and Order denying admission of Contentions 5 and 6 to this proceeding,' is denied.
FOR THE ATOMIC SAFETY AND LICENSING BOARD 4
Robe'rt M. Lazo Administrative Judge 4
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