ML20038A435
| ML20038A435 | |
| Person / Time | |
|---|---|
| Issue date: | 12/10/1980 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436, TASK-IR, TASK-SE SECY-A-80-194, NUDOCS 8110300107 | |
| Download: ML20038A435 (8) | |
Text
{{#Wiki_filter:. l. b, I, f. '- u. UNITED STAYES =- NUCLEAR REGULATORY COMMISSION v-WASHINGTON, D. C. 20555 INFORMATION REPORT 5"8o-* "8 ADJUDICATORY' The Commission For: James A. Fitzgerald From: Assistant General Counsel INFORMATION REPORT ON ALAB-622 (TOLEDO EDISON
Subject:
CO., E AL.) Davis-Besse Nuclear Power Station, Units 2 Facility: and 3 To inform the_. Commission _of _a recent Appeal-
Purpose:
~ ~ l M i l, Board order' Discussion: In January 1980, Toledo Edison announced its intention not to build Units 2 and 3 of the Davis-Besse Station and moved to terminate the licensing proceeding then before the Appeal Board. Thereupon, the Appeal Board stated it would withhold relief until such time as the utility formally withdrew its application. On February 13, the staff filed its views, agreeing with the Board 's decision to withhold relief and noting that, in any event, since site preparation work had already been performed under a limited work authorization, staff would review the site and indicate whether any conditions should be attached to temination. On November 17, Toledo Edison wrote to the Director of Nuclear Reactor Regulation withdrawing the applications for construction pemits and again requesting temination of /.. ,/ the proceeding. In ALAB-622, the Apoeal Board Chairman p chastises Toledo Edison for making its renewed request to NRR and not to the appro-priate Board. However, in light of the fomal withdrawal, the Chairman struck two
Contact:
Mark E. Chopko, GC X-43224
.4 2 Partial Initial' Decisions and further con-sideration of the radon issue at Davis-Besse from its docket. Full termination, the Chairman noted, should come by motion to the appropriate Licensing Board after the staff files its views on conditions. ALAB-622 is attached for your information. It will expire January 12,'1981. A recent staff pleading which sets forth their posi-tion is also attached. ~:-- James A. Fitzgerald ' Assistant General Counsel Attachments: 1. ALA B-6 22 2. Ltr, 11/26/80, Rothschild to Hand, Hetrick DISTRIBUTION Commissioners Commission Staff Offices Secretariat i
,s ;. :ib C ' W\\ os j: '*~ UNITED STATES OF AMERICA / 0,. j NUCLEAR. REGULATORY COMMISSION 7;. 3 \\3 %,,l. [' \\ i) A ATOMIC SAFE'IT AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman 4 ) OfO In the Matter of ) THE TOLEDO, EDISON COMPANY, et al. Docket Nos. 50-500 ) 50-501 (Davis-Besse Nuclear Power Station, ) Units 2 and 3) -) )- MEMORANDUM AND ORDER December 1, 1980 ( ALAB-6 22) The Licensing Board has rendered two partial initial deci-sions in this construction permit proceeding involving Units 2 and 3 of the Davis-Besse nuclear facility. LBP-75-75, 2 NRC 993 (1975); LBP-78-29, 8 NRC 284 (1978). No exceptions were filed to either decision and appellate review sua sponte was deferred to await final Licensing Board action in the proceeding. By letter cf January 24, 1980, counsel for the applicants advised the Chairman of the Appeal Panel that his clients' had decided not to construct Units 2 and 3. In light of this' develop-ment, counsel requested that the proceeding be terminated. On Janua.m.f 30, 1980, the Secretary to the Appeal Panel informed counsel in writing that no action would be taken on that request i l
"pending further word respecting whether the Iapplicants) intend to withdraw their application for construction permits (or, instead, will pursue some other course) ". On February 13, 1980, the NRC staff filed its response to the termination request. In that response, the staf f noted its agreement that action on the request should be withheld until the applicants announced their intentions with regard to the construction permit application. Beyond that, our attention was directed to the fact that the two partial initial decisions paved the way for the issuance of limited work authorizations (LWAs) under 10 CFR 50.10 (e) (1) (3). Two such authorizations had been issued by the Director of the Of 5 Ace of Nuclear Reactor Regulation (NRR) and site preparation work had been performed in accordance with their terms. In these circumstances, accord-ing to the staff, any termination of this proceeding "must be preceded by appropriate NRC review, taking into account the con-ditions at the site resulting from activities undertaken pursu-ant to the two LWAs issued to Applicants with a view toward determining whether (such termination) requires the imposition of special conditions". Response, p. 7. 1/ 1/ In this connection, the staf f observed that the LWAs j provided that any activities undertaken pursuant thereto j ~~ vere to be at the applicants' risk. See 10 CFR 50.10 (e) (4). l l
We heard nothing further from the applicants until our re-cent receipt of a copy of a November 17, 1980 letter from an official of the Toledo Edison Company to the NRR Director. That letter stated that the applicants "hereby withdraw" their appli-cation for permits to construct Units 2 and 3. It went on to request that "[t)o the extent that action by the Atomic Safety and Licensing Board, Atomic Safety and Licensing Appeal Board, or Commission is required for this withdrawal to become effective,
- such action be promptly taken".
No mention was made of the position taken by the staff in its February 13 memorandum. 1. It was perfectly appropriate for the applicants to notify this Commission of the withdrawal of their construction permit in the way in which they did. The same cannot be said, however, for the manner in which they renewed their request that the adjudicatory proceeding on that application be brought i to an end. A copy of a letter sent by a lay official of the i lead applicant to an NRC staff official manifestly will not suf fice for that purpose. Instead, a motion should have been filed by counsel of record for the applicants with those tri-bunals having present jurisdiction over the proceeding. As the November 17 letter itself reflects, there is good reason why counsel -- and not the client -- should be the in-strument for seeking relief in a matter in adjudication. Appar-ently, the Toledo Edison official who signed that letter was i i
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4 not f amiliar with the content of the staff's February 13 memo-randum. But, having been served with a copy of that memoran-dum, applicants' counsel undoubtedly was well aware of the ststf's concern respecting the possible significance of the site work performed under the aegis of the LWAs. Presumably, th eref ore, any motion filed by counsel looking to the termina-tion of the proceeding would have at least addressed that con-cern. 2. Notwithstanding the foregoing considerations, in this instance limited relief will be given to the applicants on the strength of the November 17 letter. The two partial initial decisions will be struck from our docket. In addition, this proceeding will be removed from the list of proceedings in which appeal boards arc now considering the generic issue per-taining to the environmental consecuences of radon rel ases attributable to the mining and milling of uranium fuel. See ALAB-540, 9 NRC 428 (1979). The applicants' request for a full termination of the pro-ceeding must be addressed to the Licensing Board, which still retains jurisdiction over portions of it. We assume that the applicants (through their counsel), will now take the necessary steps properly to put the request before that Board. Before taking action, however, the Board is to accord the staff a
E 4 reasonable opportunity to propose any conditions which its inspection of the current state of the site might suggest be attached to the terminatin order. 2 / It is so ORDERED. FOR THE APPEAL PANEL CHAIRMAN O.04 0 1 C. Je g Bishop T Secretary to the Appeal Panel 4 2/ The licensing boards have been expressiv empowered to impose conditions upon the withdrawal of a permit or license application af ter the issuance of a notice of hearing. 10 CFR 2. 'J7 (a). i This action was taken by the Appeal Panel Chairman under the authority of 10 CFR 2.787 (b). 1 1 I
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MRothschild STreby . ? 073 HKS/TFE/ ESC ' - "' J J ELD FF (2) Chron. W hCf D r3 fbverber 26, 1980 cfr. m'-{kRVICES W lk Dr. Cadet H. Hand, Jr. Dr. David L. Hetrick Bodega Marine Laboratory Professor of Nuclear Engineering University of California The University of Arizona P.O. Box 247 Tuscon, AZ 85721 Bodega Bay, CA 94923 In the Matter of The Toledo Edison Company, et al. (Davis-Besse Nuclear power Station, Units 2 and 3) Docket Nos. 50-500 and 50-501 Gentlemen: In a letter dated November 17, 1980, to Harold Denton, Director, Office of Nuclear Reactor Regulation,1/ the co-owners of the Davis-Besse Nuclear Power Station, Units 2&3 (hereafter Davis-Besse. Units 2&3) withdrew their joint applications for construction permits before the NRC,2f subject to any action by the Atomic Safety and Licensing (Board (the Licensing Board the Atomic Safety and Licensing Appeal Board the Appeal Board) or the M The letter contains a notation that courtesy copies of the letter were sent to the Chairman of the Atomic Safety and Licensing Appeal Board Panel, members of the presiding Atomic Safety and Licensing Board, the Docketing and Service Section and the Secretary of the Comission. U he joint applications were the subject of a Notice of Hearing which T was published in the Federal Recister_ on Septenber 5,1974 (39 Fed. Reg. 32176). Following an uncontested evidentiary hearing on environ-mental and site suitability matters, the Licensing Board issued a Partial Initial Decision on December 31, 1975. LBP-75-75, 2 NRC 993 (1975). Review of the decision is pending before the Appeal Board. On January 26, 1976, the Appeal Board issued an order (unpublished) wherein it deferred review of the environmental and site suitability matters addressed in the Licensing Board's Partial Initial Decision pending consideration of the remaining radiological health and safety issues and the Licensing Board's rendition of its initial decision on these issues. No proceedings have been initiated with respect to the radiological health and safety issues remaining to be considered by the Licensing Board. Thus, the proceeding on the joint applications for construction permits is pending before the Licensing Board. As noted in the Staff's pleading dated February 13, 1980, aspects of the a joint applications are pending before the Appeal Board and the Comis _ co I W c-d.ston. l l 5.. .....9... .p. h --....d 9ninnan n s '">
7_ > Conmission which may be required for this withdrawal to become effective. The letter from the co-owners requests that such action be promptly taken. The Staff, in a pleading responding to an earlier request that the Appeal Board terminate proceedings in this docket, agreed with the Chairman of the Appeal Panel that no action should be taken on the request until the co-owners advised the Appeal Panel whether they intend to withdraw their applications for construction permits. "NRC Staff Response to Applicants' Request For Termination of Proceedings", dated February 13, 1980. For the reasons set forth in its response, the Staff also stated that: "a detennination on Applicants' [ Toledo Edison Company, et al.] request should be held in abeyance until the Staff has had the opportunity to evaluate the prec ~.e condition of the Davis-Besse, Units 2 and 3 site, in terms of all activities undertaken by the Applicants on the site pursuant to their Limited Work Authorizations (LWAs). The Staff will then provide the Licensing Board with the results of its review. In the event Appli-cants decide to withdraw their applications for construc-tion permits, such withdrawal shall be on such terms and conditions as the presiding officer shall prescribe. 10 CFR I 2.107(a)." j On February 6,1980, subsequent to the announcement of the cancellation of Davis-Besse 2L3,3/ the NRC Office of Inspection and Enforcement (I&E) con-ducted a special inspection of the Davis-Besse site. That inspection assessed the status of the activities authorized by the Limited Work Authorizations. In view of the time that elapsed between the announcement of the cancellation of Davis-Besse 2&3 and the co-owners' withdrawal of the application for construction permits, the NRC Staff will conduct another inspection to determine the current condition of the site. Upon completion of that inspec-tion, the Staff will be in a position to present its views to the Licensing Board on whether termination of the proceeding requires the imposition of any special conditions. Sincerely, Marjorie Ulman Rothschild Counsel for NRC Staff cc: Service List l El The co-owners (Toledo Edison Company, et al.), announced the cancellation of Davis-Besse Units 253 on January 23, 1980. i l ....a W. no /W10..J... . ve,. w e - 5 n s. 36 km, .}}