ML20031H554
| ML20031H554 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 10/23/1981 |
| From: | Mark Miller Atomic Safety and Licensing Board Panel |
| To: | Citizens Association for Sound Energy, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| References | |
| NUDOCS 8110280120 | |
| Download: ML20031H554 (6) | |
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00(.KETE0 UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION (CT 26 P12:51 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
OFFICE OF SECRETAR f Marshall E. Miller, Chairman 00CKETiflG & SERV!CL BRANCH Dr. Kenneth A. McCollom Dr. Richard F. Cole In the Matter of Docket Nos. 50-445 50-446 TEXAS UTILITIES GENERATING COMPANY, ET AL.
(Application for Operating License) l (Comanche Peak Steam Electric Station,
. Units.1and.2).
October 21,d9AtQ4,
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O C T 2 7 19 9 y 31,
' MEMORANDUM'AND~ ORDER u s meam:xurm
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Denial of Motions to Defer Consideration
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p Of Contentions 22, 24'and~25'
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o By the Board's Scheduling Order eni.ered July 23, 1981, an evidentiary hearing on Contentions 9, 22, 24, 25 and Board Question No. 2 was scheduled to commence December 2, 1981. This hearing schedule was confirmed by our duly published Notica of Evidentiary Hearing and Prehearing Conference entered September 17, 1981 (46 Fed. Reg. 47033-34).
e On October 19, 1981, the Applicants and CASE filed a joint motion to defer consideration of Contention 25, concerning Applicants' financial qualifications to operate Comanche Peak. The basis for the motion was the Commission's proposed rule concerning' requirements for financial quali-fications review, published in the Federal ~ Register August 18,1981.E That notice stated that the Commission was considering amending its financial 9501
/48 Fed. Reg. 41786-91.
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8110280120 011023 DR ADOCK 05000445 PDR
e qualifications review regulations:
"(1) To eliminate entirely these requirements for cc,struction permit applicants; and either (2)(i) To also eliminate entirely these requirements for operating license applicants; or (2)(11) To retain these requirements for operating license applicants to the extent they require submission of information concerning the costs of permanently shutting down the facility and maintaining it in a safe condition (i.e., decomissioning costs)."
The comment period for this proposed rule was stated to expire October 19, 1981.
This proposed rulemaking results f rom a directive in Seabrook_/ that 2
the Staff initiate a rulemaking proceeding to reevaluate the financial qualifications issue. The Commission thereupon published a Federal Register notice of its proptsed study on May 25, 1978, and requested comments from interested persons.3_/ On August 8, 1981, the Commission stated in its notice of proposed rule:
"The Commission has tentatively concluded that the present financial qualifications review can appropriately be elimi-nated for electric utility applicants, which can be presumed to be able to meet the financial demands of con-structing and operating nuclear power plants. As an alternative to entirely eliminating the present financial qualification review, the Commission is considering retain-ing, at least as an interim rule, that portion of the current operating license review related to financing the permanent shutdown and maintenance of the facility in a (46 Fed. R_eg. at 41788) safe condition."
e U ublic Service Company of New Hampshire, et al. (Seabrook Station, Units P
1 and 2), CLI-78-1, 7 NRC 1, 20 (1978)'.
3_/43 Fed. Reg. 22373.
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. As the Applicants state, it was held in Douglas PointN that "the Vermont Yankee lir~.e of cases stands for the proposition that licensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission." However, it should also be observed that Douglas Point refers to the acceptance of contentions by licensing boards.
It does not nccessarily or automatically apply to contentions or issues which have been admitted and remain pending for a long period of time, and which are the subject of imminent consiJeration at a scheduled evidentiary hearing.
Under those circumstances, it is necessary to determine the intention of the Commission itself, which has plenary power over our proceedings.
The Appeal Board further stated in Douglas Point that regulatory agencies may (ardmany do) decide so-called generic issues on a case-by-case basis. The Supreme Court decisions it cited teach that "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily within the informed discretion of the administra-tiveage.ncy."E The issues involved in Douglas Point and that line of casesE concerned the proper evaluation of the environmental consequences of the uranium fuel cycle. As stated in Shoreham, they involved " matters which the Commission E otomac Electric Power Company (Douglas' Point Nuclear Generating Station, P
Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974).
E ouglas Point, supra, 8 AEC at 84.
D N ermont Yankee Nuclear Power Corp. (Vennont Yankee Nuclear Power Station),
V ALAB-56, 4 AEC 930 (1972)', Long Island Lighting Company (Shoreham Nuclear Power Station), ALAB-99, 6 AEC 53.(1973).
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has explicitly reserved for its 'own consideration in the exerci e of its rulemaking authority," citing 37 Fed. Reg. 24292 and 38 Fed. Reg 49, 50.E e
(Emphasissupplied). Similarly, in its notice of Proposed Rulemaking on the Storage and Disposal of Nuclear Waste, the Commission explicitly stated that "during this proceeding the issues being considered in the rulemaking should not be addressed in individual licensing proceedings...However, all licensing proceedings now underway will be subject to whatever final determinations arereachedinthisproceeding."8f The instant proposed rule regarding financial qualifications review does not purport presently to bar consideration of these matters in ongoing licensing board adjudicatory proceedings. The notice of rulemaking states:
"If the Commission decides to retain the financial qualifica-tions requirements relating to decommissioning costs, the rule will serve as an interim rule until completion of a future rulemaking on decommissioning that will consider the costsofdecgmmissioningandthenecessaryfinancial assurances."_/
The notice further provides:
"As an alternative to entirely eliminating the present financial qualification review, the Commission is ccnsidering retaining, at least as an interim rule, that portion of the current opera-andmaintenance.ofthefacilityinasafecondition."_I0f" ting license review related to financing the permanen Finally, with regard to the proposed application of the final rule, it was stated that "the Commission notes that the final rule, when effective, U6 AEC at 57.
U44 Fed. Reg. 61372, at 61373 (October 25,1979).
U48 Fed. RS. 41786 (August 18,1981).
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., at 41788.
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, will be applied to ongoing licensing proceedings now pending and to issues or contentions therein."ll/ Unlike Douglas Point and its progeny, the Commission has expressly recognized that there are ongoing proceedings which will continue to have pending issues and contentions relating to financial qualifications, which will continue until there is a final rule which, "when effective, will be applied" to such ongoing proceedings. Accordingly, there is no need to defer consideration sf Contention 25, and the joint motion of applicants and CASE will be denied.
In view of the pending pre-hearing and trial schedule, which is reconfirmede the movants " request expedited treatment of this motion" (page 7). The Board has authority to extend or shorten time limits for good cause (10 CFR 52.711). Accordingly, the Board considers it appropriate to give the requested expedited treat-ment of this motion, and also of two motions to defer filed by CASE on October 17, 1981, discussed below. To that end, all parties and counsel were notified by telephone this date (October 23,1981) that the Board had denied all motions to defer.
In order to give any party who so desires an opportunity to state its views on these motions, the Board will permit such matters to be brought to its attention by seasonably filed motions for reconsideration which show good cause therefor.
CASE has filed motions to defer consideration of Contentions 22 and
- 24. These motions are also denied for the reasons discussed above.
It is important for all contested operating license proceedings to go to evidentiary 11/Id., at 41789.
o hearings promptly' and expeditiously.
It may be that all of the selected contentions set for hearing on December 2,1981 cannot be fully completed at that time, but we can certainly start to receive evidence thereon. The admitted contentions have been pending since June 16, 1980, and are well known to all parties. Orders concerning discovery were entered by the Board on December 5 and 19,1980, and on April 13 (2), May 21 July 20, July 22, July 23, July 24, J91y 28, July 29 (2), July 30 (2), August 3, August 4, August 20, August 21 and September 25, 1981.
It is high time that this proceeding advance beyond the discovery and motion stage to at leest thecommencement of an evidentiary. hearing. An additional Schedule
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will be enteped shortly, taking cognizance.of the issuance of SSER's and establishing discovery and motion deadlines leading to the commencement of the final evidentiary hearing in mid-February,1982.
There is one final matter to be considered regarding CASE's motion in connection with Contention 24. CASE stated that if its motion to defer is den 4d, it "in the alternative moves that the Board grant CASE voluntary c thdrawal from Contention 24 (CASE Motion, pp. 4-5).
That motion n 3
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granted and CASE withdraws from Contention 24.
CASE's further motion, "that tha board adopt the issues covered by Contention 24 sua sponte", is denied. No adequate grounds are shown for such a motion, and none is apparent to the Board.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
(( be Marshall ~ E. Miller, Chairman ~
Dated at Bethesda,' Maryland ADMINISTRATIVE JUDGE this 23rd day of October, 1981.
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