ML20039B027
| ML20039B027 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/18/1981 |
| From: | Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20039B024 | List: |
| References | |
| NUDOCS 8112220200 | |
| Download: ML20039B027 (13) | |
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12/18/81 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket Nos. 50-247-SP CONSOLIDATED EDIS0N COMPANY
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50-286-SP OF NEW YORK (Indian Point, Unit 2)
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POWER AUTHORITY OF THE STATE OF
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NEW YORK (Indian Point, Unit 3)
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NRC STAFF RESPONSE CONCERNING THE BOARD'S AUTHORITY TO STAY OR DISMISS THIS PROCEEDING AND OPPOSITION TO CERTIFICATION OF LICENSEES' STAY REQUEST I.
Introduction On November 25, 1981 the Licensees, Consolidated Edison Company of New York, Inc., and the Power Authority of the State of New York, filed a document entitled " Licensee' Motion for a Stay of Commission's Order of January 8,1981 and September 18, 1981 or for Dismissal of this Proceeding or in the Alternative, for Certification to the Commission" (Motion). At the December 2,1981 prehearing conference in this pro-ceeding, the Board directed that any responses to the Motion be filed by December 18, 1981.
Tr. at 153.
The NRC Staff response in opposition to the Licensees' Motion is set forth below.
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. II.
Background
On May 30, 1980, the Commission issued an order announcing its inten-tion to hold a discretionary adjudication for the resolution of safety issues raised by the Union of Concerned Scientists concerning the long-term safety of the Indian Point, Units 2 and 3.M On July 25, 1980 Consolidated Edison of New York, Inc., and the Power Authority of the State of New York (Licensees) filed a document entitled " Licensees' Motion for Reconsideration of That Portion of the Commission's Order of May 30, 1980 Which Directs Adjudicatory Hearings." As indicated by the title of the document, the Licensees requested that the Commission reconsider that portion of its May 30, 1980 Order which directs that an adjudicatory he:tring concerning the Indian Point units be held before an Atomic Safety and Licensing Board.
In its Order of January 8,1981,U as revised on September 18, 1981.E the Commission denied the Licensees' motion for reconsideration and directed that the discretionary proceeding be conducted using the full procedural M 'he Commission's Order also initiated an infonnal proceeding for the T
purpose of defining the questions to be answered in the adjudication,-
as well as the criteria to be applied; announced the Commission's plan to address the generic question of the operation of nuclear reactors in areas of high population density through a generic proceeding, and directed the Commission's General Counsel and Director, Office of Policy Evaluation, to establish a Task Force to address the question of status of the reactors during the pendency of the. planned adjudication.
Com-mission Order, dated May 30,1980 (unpublished).
U onsolidated Edison Co. of New York (Indian Point, Unit No. 2) Power C
Authority of the State of New York (Indian Point, Unit No. 3), CLI-81-1, 13 NRC 1 (1981).
E omuission Memorandum and Order of September 18, 1981, CLI-81-23, C
14 N2C
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format of a trial-type adjudication, including discovery and cross-examination.
The Canmission stated (CLI-81-1, as revised, at 5 and 6):
The purpose of the proceeding will be to take evidence and make recommended findings and conclusions on dis-puted issues material to the question whether the Indian Point Units 2 and 3 plants should be shut down or other action taken. The record of the proceeding, together with recommendations, will then be forwarded to the Commission for the final agency action on the merits of the proceeding.
In view of the complexity of this pro-ceeding, and in order that the Commission may make its decision within a reasonable period of time, we stress that the Board should focus clearly upon the questions asked by the Commission.
The Commission identified the questions the Licensing Board is to address and stated that the Canaission would like to receive the Board's recommendations by September 18, 1982 (CLI-81-1, as revised, at 7 and 8).
On September 18, 1981 the Commission appointed this Poard to preside over this adjudicatory proceeding. ' Memorandum and Order of September 18,1981, CLI-81-23, at 4.
On November 25, 1981 the Licensees filed the instant Motion with a supporting memorandum. The Licensees in their Motion request a stay or dismissal of the Commission-directed adjudicatory proceeding.
In the alternative, the Licensees move for certification to the Commission of __
questions raised in their Motion "if the Licensing Goard considers that the Commission's prior orders preclude the Licensing Board from granting the relief sought in this motion." Motion at 2.
At the December 2, 1981 prehearing conference in the above proceeding, with respect to the Licensees' request, the Licensing Board directed that responses to the Licensees' request address only the question of this
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F Board's jucisdiction to dismiss or stay this proceeding or to certify to the Commission the question of such dismissal or stay.
Accordingly, as stated by Judge Carter, this memorandum addresses first the " procedural aspect of the power of the Board to grant a stay or dismissal" and second
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"the power of the Board to certify".
Tr. 90.
III.
Discussion A.
THIS BOARD LACKS THE JURISDICTION TO STAY OR DISMISS THIS C0f1 MISSION-DIRECTED PROCEEDING 1.
This Licensing Board Must Follow the Direction of the Commission and Conduct the Adjudicatory Hearing and is Without ' Authority to Interrupt the Proceeding by Grant of a Motion to Stay or Dismiss the Proceeding As the Appeal Board has stated."[e]very tribunal - whether judicial or administrative - possesses the inherent right (indeed the duty) to determine in the first instance the bounds of its own jurisdiction".
Duke Power Co. (Perkins Nuclear' Station, Units 1, 2.and 3), ALAB-591, 111 NRC 741, 742 (1980).
Accordingly, it is appropriate and indeed neces-sary that this Board address first the question of its jurisdiction to dismiss or stay this Commission-directed proceeding.
The Staff, however, believes that the answer to this jurisdictional
. question with regard to this proceeding is clear because this proceeding as discussed, supra, is a special proceedi.ng created and directed by the.
Commission itself.
The Commission in its January 8,1981 Order stated, The Commission directs that the discretionary proceeding will be conducted in the vicinity of Indian Point by an Atomic Safety and Licensing Board, using the full procedural format of a trial-type adjudication, including discovery -
and crosscexamination.
(Footnote omitted)
s It is furthermore clear from that Order that the ' Commission has directed this Board to conduct a proceeding focused on_ the issues set forth by the Commission in the order to the end that it formulate recom-mendations on the questions posed by the Commission by September 18, 1982.
CLI-81-1, as revised, at 5 n.4 and 8.
There is nothing in the Commission's Order that would lend any weight to an argument that this Board has the authority to dismiss this proceeding.
or interrupt the proceeding by the grant of a request for _ stay.
That licensing boards must follow the direction of the Commission is clear.
As the Appeal Board has stated:
Congress has vested authority to administer the licensing provisions of the Atomic Energy Act in the Nuclear Regula-tory Commission.
The Commission in turn is authorized by that Act to have atomic safety and licensing boards pre-side over adjudicatory proceedings., which boards-may be convened "to conduct such. hearings as the Commission may -
direct." Thus, like ourselves, licensing boards "are delegates of the Commission and exercise only those powers which the-Commission has given [them]." (Footnote omitted)
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167,170 (1976).
The Appeal Board further has stated that, "[e]xcept where it recuses itself in a particular case, a licensing board's actions can neither' enlarge nor contract the jurisdiction conferred by the Commission".
Consumers Power.
Company (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645, 647 (1974);
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. Marble Hill, ALAB-316 at 171.S/ Accordingly, the Staff believes that consistent with the direction of the Commission this Board should proceed with the directed adjudicatory proceeding to the end of formulating recom-mendations uninterrupted and is, therefore, without authority to entertain either a motion for stay or a motion for dismissal of this proceeding.
2.
The Commission and not the Licensing Board is the Proper Forum for the Instant Request to Stay or Dismiss this Proceeding Common sense dictates that the Commission alone would be the prope -
forum for the instant request.
By its Order dated May 30, 1980 the Com-mission directed that this adjudicatory proceeding be held.
Clearly.then, S/ ee Northern Indiana Public Service Company (Bailly Generating Station, S
Nuclear-1), ALAB-249, 8 AEC 980, 987 (1974) where the Appeal Board, noting a Commission order in the proceeding foreclosing certain dis-covery, declined to grant a request for such discovery stating:
We are delegates of the Commission and exercise only those powers which the Commission has given us.
The Commission's Rules of Practice which apply generally to all proceedings t
cannot be said to authorize the Licensing Board or this Board to take action which the Commission has specifically-precluded.
l See also Ncrthern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 558, 565 (1980), where the i
Appeal Board stated with regard to the Board's power to entertain a particular issue, "a licensing Board must respect the terms of-the notice of hearing published by the Commission for'the proceeding in i
question."
That Boards may not act beyond their delegated authority and must follow the direction of the Commission is further indicated in Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12,11 NRC 514, 517 (1980) and Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 l
and 2), ALAB-584, 11 NRC 451, 465 (1980).
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+ the Commission and not the Licensing Board is the prop'er forum to decide whether that portion of the Commission's May 30, 1980 Order directing that this proceeding be held, should be overruled.
Further the Commission's rule governing applications for stays makes clear that the application for a stay of a decision should be filed with the deciding body.
See 10 C.F.R. s 2.788(f)E and Statements of Consider-ation to Part 2 entitled " Commission Review of Appeal Board Decisions and Procedure for Requests for Stays", 42 Fed. Reg. 22128 (May 2, 1977).
In the instant proceeding, the Commission was the " deciding body" in that the Commission initiated this proceeding. Any requests to stay or interrupt the proceeding should be filed with the initiating body, the Commission.
Accordingly, this Board is not the proper forum and is, therefore, without authority to grant the instant request to dismiss or stay this proceeding.E E 10 C.F.R. Q 2.788(f) provides:
(f) An application to the Commission for a stay of a decision or action by an Atomic Safety and Licensing Appeal Board will be denied if a stay was not, but could have been, sought before the Appeal Board.
An application for a stay of a decision or action of a presiding officer may be filed before either the Atomic Safety and Licensing Appeal Board or the pre-siding officer, but not both at the same time.
O The absurd result would be to find that this Board has jurisdiction to stay or dismiss the instant proceeding only to be required to follow the Commission precedent of the Commission's January 8,1981 decision denying Licensees' July 25, 1980 Motion for Reconsideration of the Commission's Order of May 30, 1980, which directed the hold-ing of the instant proceeding.
See, North Anna, ALAB-584, at 465 (where the Appeal Board noted its " obligation to follow Commission precedent").
-T 8
m 8-B.
THIS BOARD DOES HAVE THE POWER TO CERTIFY TO THE COMMISSION THE QUESTION OF SHOULD THIS PROCEEDING BE DISMISSED OR STAYED; HOWEVER SUCH CERTIFICATION HERE IS NOT APPROPRIATE The power of this Board to certify is clear.
The Commission's Rules of Practice, specifically 10 C.F.R. f 2.718, provides, in part:
A presiding officer has the duty to conduct a fair and impartial hearing according to law; to take appropriate action to avoid delay, and to maintain order. He has all powers necessary to those ends, including the power to:
(1) Certify questions to the Commission for its deter-mination, either in his discretion or on direction of the Commission.
The Appeal Board has said of this provision:
Section 2.718(1) provides without qualification for the licensing board certification of questions to the Commis-sion "either in [that board's] discretion or on direction of the Commission."
(emphasis of Appeal Board deleted)
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 482 (1975).
In spite of the clear statutory authority indicating that this Board may in its discretion certify questions to the Commission, the Staff believes that such authority should be exercised sparingly. As the Appeal Board stated as to its authority to certify questions to the Commission pursuant to 10 C.F.R. 6 2.785(d):2/
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Section 2.785(d) provides that the Appeal Board may in its discre-tion or on direction of the Commission, certify to the Commission for its determination " major or novel questions of policy law or procedure." The Staff notes that while Section 2.718(i) does not itself articulate any standard for certification by licensing boards the same standard is indicated in Appendix A to Part 2,Section V(f)4.,.This Section provides, in part:
(F0OTNOTE CONTINUED ON NEXT PAGE) s ywg+
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. Although our authority to certify a question to the Commission is beyond doubt (10 CFR 52.785(d)), we have more than once observed that "such authority should be exercised sparingly." See e.g., Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear 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 qucstion to the Commission."
ALAB-211, supra, 7 AEC at 984.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-421, 6 NRC 25, 27 (1977).
There does not appear to be any compelling reason extant here for certification.
In fact, what is clear here from the Commission's May 30, 1980, January 8,1981 and September 18, 1981 Orders is that there exists a compelling interest for this Board to proceed with the develcpment of a record on the Commission-directed issues quickly and efficiently to enable it to meet the September 18, 1982 date for this Board's recommendations and thereby allow the Commission to make a decision about the long-term safety of the Indian Point plants.
T'he Commission has furthermore invited certification "where Boards are in doubt as to the Commission's intentions".
Statement of Policy;
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(F0OTNOTE CONTINUED FROM PREVIOUS PAGE) 1/
(4) A question may be certified to the Commission or the Appeal Board, as appropriate, for determination when a major or novel question of policy, law or procedure is involved which cannot be resolved except by the Commission or the Appeal Board and when the prompt and final decision of the question is important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party.
op Further Commission Guidance for Power Reactor Operating Licenses, CLI-80-42, 12 NRC 654, 660 (1980).
As fully developed in section IIIA of this memorandum, however, the Staff believes that the Commission has not left any doubt as to its intentions here with respect to this proceeding.
The Commission has directed this Board to develop a record on specific questions and make its recommendations by September 18, 1982.
Accordingly, while the Staff believes that this Board has the authority to certify to the Commission the question of whether this proceeding should be stayed or dismissed; such a question is not an appropriate one for certification since the Commission itself took the action complained of and'specifically aenied reconsideration thus making its intentions clear beyond doubt.
IV.
Conclusion For the reasons set forth above, the NRC Staff believes that this Board is without authority to dismiss or stay this proceeding; possesses the authority to certify to the Commission the question of should this proceeding be dismissed or stayed, but should refrain from exercising such authority since the question is not an appropriate one for certification.
Respectfully submitted, PD d jf w-Hen J. McGurren Counsel for NRC Staff Dated at Bethesda*, Waryland -
this 18th day of December,1981 f
t 2
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSOLIDATED EDISON COMPANY
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Docket Nos. 50-247-SP 0F NEW YORK (Indian Point, Unit 2)
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~50-285-SP
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POWER AUTHORITY OF THE STATE OF-
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l NEW YORK (Indian Point, Unit 3)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO AMENDMENT TO PETITION TO PARTICIPATE PURSUANT TO 10 C.F.R. %2.715(c) 0F THE NEW YORK STATE ASSEMBLY and NRC STAFF RESPONSE CONCERNING THE BOARD'S AUTHORITY TO STAY OR DISMISS THIS PRO-CEEDING AND OPPOSITION TO CERTIFICATION OF LICENSEES' STAY REQUEST 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of December,1981._,
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- Louis J. Carter, Esqt,. Chairman Paul F. Colarulli, Esq.
Administrative Judge Joseph J. Levin, Jr., Esq.
Atoinic Safety and Licensing Board Pamela S. Horowitz, Esq.
U.S. Nuclear Regulatory Commission Charles Morgan, Jr., Esq.
Washington, D. C.
20555 Morgan Associated, Chartered 1899 L. Street, N.W.
- Dr. Oscar H. Paris Washington, D. C.
20035 Administrative Judge Atomic Safety and Licensing Board Ch nles Mf Pratt,,Esq.
U.S. Nuclear Regulatory Comission Thomas R. Frey, Esq'.
Washington, D. C.
20555 Power Authority of the n
State of New York
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- Mr. Frederick J. Shon ~
10 Columbus Circle Administrative Judge
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New York, N.Y.
10019 Atomic Safety and Licensing Board O.S. Nuclear Regulatory Commission Ellyn R..Weis, Esq.
Washington, D. C.
20555 William S. Jordan, III, Esq.
Hannon & Weiss F7
. Brent L. Brandenburg, Esq.
1725 I Street,.N.W., Suite 506
[;7 Assistant General Counsel Washington, D. C.
20006' Consolidated Edison,,Co.
of New York, Inc.
Joan Holt, Project Director 4 Irving Place Indian Point Project New York, N.Y.
10003 New York Public Interest Ressarch Group 5 Beekman Street New York, N.Y.
10038 s.
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. 2 John Gilroy, Westchester Coordinator Honorable" Ruth Messinger Indian Point Project Member of the Council of the New York Public Interest City of New York Research Group District #4 240 Central Avenue City Hall White Plains, New York - 10606 New York, New York 10007 Jeffrey M. Blum, Esq.
Honorable Miriam Friedlander New York University Law School Member of 'the. Council ^of;the 423 Vanderbuilt Hall City of New York 40 Washington Square South
. District #2 New York, N.Y.
10012 City Hall Charles J. Maikish, Esq.
Litigation Division Honorable Carol Greitzer The Port Authority of Member of the Council of the New York and New Jersey City of New York One World Trade Center District #3 New York, N.Y.
10048 City Hall New York, New York 10007 Ezra I. Bialik, Esq.
Steve Leipsiz, Esq.
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Honorable Stanley E. Michels Environmental Protection Bureau Member of the Council of the New York State Attorney City of New York General's Office District #6 Two World Trade Center City Hall New York, N.Y.
10047
Alfred B. Del Bello Honorable Susan-Alterc Westchester Coonty Executive Member of the Council of the Westchester County City. of>NEw York 148 Martine Avenue District #22 New York, N.Y.
10601 City ~ Hall New York, New York 10007 Andrew S. Roffe, Esq.
(J.
New York ~ State Assembly Honorable Edward C. Wallace Albany, N.Y.
12248 Member of the Council df the _.
City of New York Renee Schwartz, Esq.
Councilmember-at-Large, Manhattan Botein, Hays, Sklar & Herzberg City Hall
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$9.f Attorneys for Metropolitan New York, New York 10007 Transportation Authority 200 Park Avenue Honorable Mary Pinkett y
_ New York, N.Y.
10166 Member of the Council 6f -the -
City of New York
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Stanley B. Klimberg District #28 7-General Counsel City Hall
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.New York State Energy Office New York, New York 10007
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~ 2 Rockefeller State Plaza Albany, New York 12ES Honorable Mary T. Codd Member of the Council of the City of New York Councilmember-at-Large, Staten Island City Hall
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Honorable Gilberto Gerana-Valentin Pat Posner, Spokesperson Member of the Co6ncil of the Parents Concerned About City of New iork Indian Point District #11 P. O. Box 125 City Hall Croton-on-Hudson, NY 10520 New York, New York 10007 Charles A. Scheiner, Co-Chairperson Honorable Arthur J. Katzman Westchester People's Action Member of the Council of the Coalition, Inc.
City of New York P. O. Box 488 District #22 White Plains, N.Y.
10602 City Hall New York, New York 10007 Alan Latman, Esq.
44 Sunset Drive Jonathan L. Levine, Esq.
Croton-on-Hudson, N.Y.
10520 Rockland Citizens for Safe Energy Lorna Salzman P.O. Box 74 Mid-Atlantic Representative New City, NY 10956 Frierids of the Earth, Inc.
208 West 13th Street Marc L. Parris, Esq.
New York, N.Y.
10011 County Attorney County of'Rockland Zipporah S. Fleisher 11 New Hempstead Road West Branch Conservation New City, NY 10956 Association 443 Buena Vista Road Geoffrey Cobb Ryan
'New City, N.Y.
10956 Conservation Committee Chairman, Director
- Docketing,an,d. Serv. ice Section New York City Audubon Society Office of the Secretary 71 West 23rd Street, Suite 1828 U.S. Nuclear Regulatory Commission New York, NY 10010 Washington, D. C.
20555 Greater New York Council Mayor George V. Begany on Energy Village of Buchanan c/o Dean R. Corren, Director 236 Tate Avenue New York University Buchanan, N.Y.
10511
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26 Stuyvesant Street New York, NY 10003 Judith Kessler, Coordinator Rockland Citizens for Safe Energy 2~93"
- Atomic Safety and Licensing 300 New Hempstead. Road Board Panel
. New City, N.Y.
10956' U.S. Nuclear Regulatory Commission Washington, D. C.
20555
. David H.~Pikus, Esq.
Richard: F. Czaja, Esq.
- /.tomic Safety and Licensing 330 Madison Avenue Appeal Board Panel New York,,NY.~10017 g
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U.S. Nuclear Regulatory Commission
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Washington, D. C.
20555 x_L HentQ j. McGurren Counsel for NRC Staff X - - -- -- -- - - - -
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