ML20039C231
| ML20039C231 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 12/24/1981 |
| From: | Chilk S NRC COMMISSION (OCM) |
| To: | JOINT APPLICANTS - CLINCH RIVER BREEDER REACTOR |
| References | |
| CLI-81-35, NUDOCS 8112290089 | |
| Download: ML20039C231 (16) | |
Text
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UNITED STATES 0F AMERICA
'T" NUCLEAR REGULATORY COMMISSION COPtilSSIONERS:
21 8 24 R228 Nunzio J. Palladino, Chairman D
Victor Gilinsky
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Peter A. Bradford
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John F. Ahearne
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Thomas M. Roberts SEil'/ED DEC 2 4 G51
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In the Matter of
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UNITED STATES DEPARTMENT OF
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Docket No. 50-537 ENERGY
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(exemption request PROJECT MANAGEMENT CORPORATION
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under 10 CFR 50.12)
TENNESSEE VALLEY AUTHORITY
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m (Clinch River Breeder Reactor
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Plant)
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RECEIVED 1*
b DEC2 91981> Te (cLI-81-35)
MEMORANDUM AND ORDER
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man meg Introduction This Memorandum and Order establishes the Comission's procedures for considering the merits of the Department of Energy's 1
(DOE's) request for an' exemption from 10 CFR 50.10 pursuant to 10 CFR 50.12 in order to begin site preparation for the Clinch River Breeder Reactor.
For the reasons discussed below, the Comission believes that an informal proceeding directed by the Comission itself is best suited for consideration of the merits of this exemption request.
Background
On November 30,198100E, for itself and on behalf of its co-applicants Project Management Corporation and the Tennessee l
Valley Authority, requested the Nuclear Regulatory Comission (NRC or Comission) to grant an exemption from 10 CFR 50.10 pursuant to koj2ggCK05000537 p
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2 10 CFR 50.12 to conduct site preparation activities for the Clinch Diver Breeder Reactor (CRBR) prior to the issuance of a construction permit or limited work authorization.
DOE's proposed site preparation activities include site clearing and grading; excavation and quarry operations: the construction of temporary construction related facilities, a barge facility, an access road and railroad spur; and the installation of services including power, water, sewenge and fire protection.
None of the work appears to involve safety-related structures, systems, or s subject to the Comission's safety regulations in 10 CFR Part 5 ong the reasons advanced by DOE in support of its rhb a ~ he claims that: (1) Congress has expressed the t the CRBR project be completed expeditiously;
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"ii.%a 17 (2fproc al delays will cause undue hardship in the fom of attch
-2 years of delay and $120-240 millions of increased costs; and (3) the project is in an advanced stage of development and is ready to begiri site preparation activities.
Views' Of The Parties DOE requested that the Commission itself rule on this
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exemption request because it raises substantial national policy considerations that only the Commission can address.
These include cited Presidential and Congressional mandates to construct the CRBR in a timely and expeditious manner, the implications of alleged increased costs, and the alleged adverse effects of delay on DOE's responsibility for developing the technology of the liquid metal fast breeder reactor (LMFBR).
3 DOE also contended that a hearing is not required on its exemption request.
In its view, the Comission's requirements for a hearing prior to commencement of site preparation activities are not compelled by either the National Environmental Policy Act (NEPA) or the Atomic Energy Act of 1954, as amended. Moreover, DOE believes an infonnal proceeding will prove adequate for resolving any disputed matters.
DOE is opposed to a referral of its request to an Atomic Safety and Licensing Board (Board) for adjudicatory hearings since, in DOE's view, such a referral only serves to further delay the project without providing the Comission with i
meaningful assistance in addressing the policy and other issues raised by the exemption request.
DOE's request was opposed by the Natural Resources Defense Council, Inc. and the Sierra Club, intervenors in the now suspended i
adjudicatory hearing on applicant's 1976 application for a construction permit.
Intervenors agree that this request raises major issues of policy and law that should be decided in the first instance by the Comission itself based on oral argument and written coments. The issues identified by NRDC and the Sierra
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Club are: (1) the applicability of the exemption provisions in 10 J
CFR 50.12 to this unique project; (2) the existence of a Congressional mandate for expeditica as argued by DOE; (3) the effect of granting the exemption on one of the CRBR's alleged purposes which is to demonstrate the licensability of breeder reactors; (4) the effect of an exemption on public confidence in CRBR; (5) the predetermination of intervenors' environmental contentions in the suspended proceeding; and (6) the completeness
4 of the environmental record.- NRDC and the Sierra Club believe that these are threshold issues that must be addressed by the Commission before it rec:hes the other merits of the exemption request. They contended that a consideration of these threshold issues will lead to denial of the exemption request. However if, contrary to their position, Commission consideration of these 1
issues is not dispositive, then several factual issues-require resolution before the exemptions can be granted. They believe that l
the Commission's practice has been to refer these kinds of factual issues to a Licensing Board for a formal adjudicatory hearing.
They have conceded that neither the Atomic Energy Act nor NEPA requires such a hearing.
Rather, the thrust of their argument appears to be that a formal hearing is required by Commission precedent.
Moreover, they argue that a formal hearing is the most i
effective way to elucidate the facts bearing on the exemption request.
Finally, they believe that any adjudicatory hearing should be conducted by the Board for the now suspended LWA proceeding.
Because that Board is familiar with the details of CRBR, NRDC and the Sierra Club.believe it could provide timely review.
On December 16, 1981, we provided the parties to the suspended permit proceeding an opportunity to address the appropriate 1
procedures for NRC consideration of the merits of a'pplicants' exemption request. Appearances were made by representatives for i
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g the applicants and NRDC and Sierra Club.1/ Applicants presented a proposed procedure and schedule for direct Comission consideration of the exemption request. That procedure included an opportunity for comments by the public, responses to coments, and an oral presentation to the Comission on the merits of the exemption request.
NRDC and the Sierra Club stated their arguments as sumarized above, and urged the Comission to consider the so-called threshold issues under a procedure similar to that proposed by the applicants. They agreed that the applicants' proposed schedule not only was reasonable but could be compressed by several weeks, assuming that no fonnal adjudicatory hearings J
were to be held.
Procedures To Be Followed Following the oral presentations, the Comission met in public to decide how to proceed with consideration of the exemption request.
The Comission believes, and applicants and NRDC and Sierra Club agree, that neither.the Atomic Energy Act nor NEPA dictate the form of proceedings on exemption requests of the type requested here.
There is also agreement on all sides that the request presents several major and novel policy and legal is' sues that are best resolved by the Comission itself as the highest policy-making entity within the agency.
The dispute focuses on 1/
A statement in support of the exemption requ6 0 was also made by a representative for the Governor of Tennessee, who is not a party to the suspended proceeding.
However, a representative of the Attorney General of Tennessee, who is a party to the proceeding, stated thet the Attorney General had not yet taken a position on the exemption request or on the procedures for its consideration by the Comission.
6 whether several of the policy and legal issues must be resolved at the outset against the grant of the exemption and, if not, whether resolution of residual factual issues should entail a formal adjudicatory hearing.
We, decline to reach the merits of any of the policy or legal I
issues at this time, since further presentations will be required before there has been fair opportunity to present opposing views.
We agree with NRDC and the Sierra Club that the exemption request may present issues of fact relating to matters such as the environmental impact of the proposed work and the cost-savings from granting of the exemption. However, we cannot agree that a fomal adjudicatory hearing will prove to be 'the only way for adequate ventilation and resolution of these issues, or that formal adjudicatory hearings are dictated by past Comission practice.E 2_/
Although intervenors acknowledge the Comission precedent is
" split" on the issue of a need for a hearing on an exemption request, their an'alysis of Comission decisions on exemption requests leads them to conclude that the Comission's practice has been to consider adjudicatory hearings necessary in every contested case. We believe that this conclusion does not adequately characterize Comission practice.
Only 5 exemption requests have been considered by the Comission over the years, and in only two cases did the Comission hold a hearing.
However, both cases arose under unusual circumstances.
In Carolina Power and Light Comoany (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4),'
CLI-74-9, 7 AEC 197 (1974) (Shearon Harris I), the Deputy Director for Reactor Projects, Directorate of Licensing had granted the applicant's request for an exemption without notice to the intervenors or an opportunity for a hearing.
Upon learning of the grant of the excmption, an intervenor petitioned the Comission for a stay of that exemption.
The Comission referred the stay request to the Board having
[ Footnote 2 continues on following page.]
7 It is quite common for such issues to be resolved b'y informal procedures falling short of formal examination and cross-examination of sworn witnesses.
Even within the Comission itself, such issues are routinely and adequately dealt with in the informal Staff and ACRS review processes.
There is no reason to 2/
[ Footnote 2continuesfrompreviouspage.]
jurisdiction over the construction permit proceeding, and also determined that "under the ci*cumstances of this case" the Board should conduct a hearing on the mer.its of the exemption request "even though the rule as written does not require adversary hearings in connection with applications for these exemptions."
Id. at 198.
Thus, the Comission's initiation of a discretioliary hearing in Shearon Harris I must be viewed as a response to the Director's previous failure to notify interested parties of the grant of an exemption.
In Kansas City Gas and Electric Company, Kansas City Power and Light Company (Wolf Creek Generating Station, Unit No. 1),
CLI-76-20, 4 NRC 476 (1976) the Comission referred the applicant's request for an exemption to the Licensing Board already considering the application for a construction pemit.
l This exemption request was filed after the United States Court l
of Appeals for the District of Columbia Circuit had decided Natural Resources Defense Council v. NRDC, 547 F.2d 663 (D.C.
Cir.1976) which found inadequate the Comission's original rule on the environmental effects of the uranium fuel cycle I
(Table S-3).
In response to that decision, the Comission decided that licensing could resume caly if an examination of the revised values in Table S-3 thowed that the cost-benefit balance would not tip against a proposed plant. 41 Fed. Reg. 49898, 49899 (November 11,1976). Thus, the Commission's referral of the exemption request to the Licensing Board was primarily for the purpose of obtaining an assessment of fuel cycle impacts.
The Licensing Board, having considered the cost benefit issue, was obviously in the best position to consider if fuel cycle impacts would change the decision.
The Comission has not initiated.a hearing in the three other exemption requests it has considered.
In Louisiana Power and Light Company (Waterford Steam Electric Generating Station, Unit 3), CL1-73-25, 6 AEC 619, 622 n.23 (1973) (Waterford) the l
Comission stated that in the " circumstances of this case" it i
would be inappropriate to circumvent normal adjudicatory procedures by granting the exemption.
Among the circumstances referred to by the Comission was the presence of seriously
[ Footnote 2 continues on following page.]
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8 believe that the informal procedures which follow will not prove adequate to the task. Moreover, we believe that the estimates of NRDC and the Sierrs Club of the time required for the conduct of formal hearings by a Licensing Board are extremely optimistic.
The one. case cited by them_/ involved relatively few disputed 3
factual issues.
It is not at all clear that few factual issues 2/
[ Footnote 2 continues from previous page.]
contested environmental issues in ongoing adjudicatory proceedings which were actually ongoing at that time. The Comission did not specify the " construction" activities for which an exemption was sought.
The Commission then denied the request without a hearing.
In Gulf States Utilities Comoany (River Bend Station, Units 1 and 2), CLI-76-16, 4 NRC 449 (1976) (River Bend) the Commission granted an exemption request without a hearing before it or a Board. Here again, the Comission's decision was based on the particular facts of the proceeding.
The exemption request was not contested, and the proposed action was considered not to have any adverse environmental impacts.
Id. at 450.
In Washington, Public Power Supply System (WPP3Y Nuclear Project Nos. 3 and 5),
CL1-77-ll, 5 NRC 719 (1977) (WPPSS) the Comission denied an exemption request without a hearing.
In WPPSS, the Comission stated that it would not assume the function of an existing Board and scrutinize factual issues itself absent a showing of extra-ordinary circumstances such as emergency situations in which time is of the essence and relief from the Licensing Board is impossible or highly unlikely. WPPSS at 723.
Such circumstances had not been shown in that proceeding.
- Thus, WPPSS addresses the question of when the Comission will-preempt a sitting Board and conduct a hearing on an exemption request.
The decision does not address the question of how the Commission will handle an exemption request when there is no Board currently immersed in a proceeding on the very same issues raised by that request.
This review of Comission precedent shows that' there has not been a uniform Commission practice to require a hearing before a Board for factual issues associated with an exemption request.
Rather, the Comission has tailored its procedures to the factual circumstances of each case.
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Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), LBP-74-18, 7 AEC 538 (1974).
will be presented here. We conclude that formal hearings will likely produce little additional benefit to the process and yet will likely cost a great deal. soth in elapsed time and resources of the Comission and the parties.
Accordingly, the Comission is establishing the following procedures for consideration of the merits of the exemption request:
1.
The request will be considered in an informal proceeding involving written coments and oral presentations to the Comission itself. This informal proceeding will be kept separate from the suspended construction permit proceedings.
2.
The participants to this proceeding will be the applicants, NRDC and the Sierra Club, and any other interested person who has filed written coments in accordance with the schedule set out below. The NRC staff will riot particpate as a party to this proceeding.
l 3.
Applicants shall, within one week of the date of this Order, files / with the Comission currently available docum; tation supporting the fa'ctual representations in l
its exemption request.
If this date cannot be met, then Applicants shall advise when the materials can be l
l provided.
1 SI All dates in this schedule are dates by which the Comission must receive filings or other documents.
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10-4.
Applicants shall by January 18, 1982 file with the Comission answers to the questions in Attachment A to this Order.
5.
Applicants, NRDC and the Sierra Club, and any other interested person may file written comments with the Comission in support of, or in oppcsition to, the exemption request. The comments may include answers to the questions in Attachment A.
Such coments shall be filed with the Comission by January 18, 1982.
6.
The Comission is requesting government agencies (including the the Governor and the Attorney General of the State of Tennessee) to file with the Comission any coments they may have on the request by January 18, 1982.
The remaining steps are set forth in the attached schedule.
A separate statiement by Comissioner Bradford is attached.
ItissoORDERED.E O the Comi ion
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SAMUEL J.' CHILK
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Dated at Washington, D.C.
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this 7. b day of December, 1981.
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SJ Comissioner Gilinsky did not participate in this Memorandum and Order.
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Views of Comissioner Bradford Past Comission practice has invariably been to permit limited comments of this sort to run as footnotes in the Comission opinion for the convenience of the reader. The Comission majority has decided, in the Clinch River case for the first time, to exclude uncongenial thought from its order.
With apologies to any who nust now find their mental and physical way back into that docment, I have the following two comments:
1)
Page 6, Footnote 2 (to be read as a last paragraph to that foottete)
"Comissioner Bradford notes that this labored history amounts to exactly the situatiof. cascribed in the first paragraph as an erroneous intervenor view:
The NRC has never granted a contested 50.12 exemption without an adjudicatory hearing."
2)
Pages 8-9, (to be read as a footnote to the sentence reading, "It is not at all clear that few factual issues will be presented here.")
"Comissioner Bradford notes that an increase in factual issues does not decrease the need for an adjudicatory hearing.
Indeed, the discus-sion preceding this sentence sails breathtaking 1y counter to decades of
' administrative law,'to say 'nothing of centuries of development of adjudicatory procedures as the best available method for resolving contested issues of material fact.
He would keep open the possibility of adjudicatory hearings until the Comission has a clearer apprecia-l tion of the possible role of contested factual issues in determining the outcome of the proceeding.
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ATTACHMENT A
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ATTACHMENT A 1.
Is there any indication in acts providing for CRSRP authorizations or approprriations or other applicable statutes that NRC licensing of the CRBRP could, or could not, include use of 10 CFR Sec. 50.12 as proposed by the applicants?
2.
Is there any indication in the acts providing for CRBRP authorizations or appropriations, associated comittee or conference reports, or legislative history that speaks to the licensing procedures to be used by the NRC?
3.
Under what conditions would grant of an exemption be authorized by law? Would grant of an exemption endanger life or property or the comoi Jefense and security? Would grant of this exemption be in the public interest? If not, why not? With regard to the public interest criteria in 10 CFR Sec. 50.12 (a) and (b)(4), what interpretation and weight should be given to Presidential and Congressional statements pertaining to the timing of construction of the CRBRP?
4.
Is the available documentation adequate for the Comission to base its decision on the exemption request to authorize site prepcration activities? The documentation includes the applicant's Preliminary Safety Analysis Report (PSAR), Environmental Report (ER), Schedule for and Description of Site Preparation Activities to be conducted
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pursuant to 10 CFR 50.10(e)(1) (received April 11,1975),- and Site -
Preparation Activities Report (SPAR) (November'30h h981) as well a the staff's Site Suitability Report (SSR) and Final Environmental,
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Statement (FES).*
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- Such documentation will also include the DOE docuc'entation supplied'in response to this Order (See, e.g., Order supra at 10.
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5.
Identify areas, if any, in various licensing documents (PSAR. ER,
- FES, SSR, etc.) that need to be updated, which would have a bearing on this exemption decision.
6.-
What, if any, further exemptions from regulatory requirements does the applicant plan to request if this 10 CFR 50.12 request is granted?
If this exemption is granted, does the applicant plan
-also to request a Limited Work Authorization?
7.
Provide the updated overall CRBRP schedule, including (a) current estimate of when applicant expects to request resumption of ASLB proceeding, (b) key milestones of constucting and licensing the plant, (showing DOE assumptions regarding dates for NRC licensing action) and (c) current expected date of operation.
The schedule should indicate points at which a negative NRC action could adversely
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affect the overall CRBRP schedule.
8.'
Identify and discuss any changes in the project scope from the scope originally evaluated (staff FES. Chapter 4 - Environmental impacts Due
-. to Construction) that may have contributed to the changes in proposed site preparatica activities (page 3-1 of the Site Preparation Activities Z'
. Report, Novanber 1981), particularly the substantial increase in the amcunt of. excavation..
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9.
(a) Provide the documentation which forms the basis for projected cost of delay and environmental impact estimates referred to in the Site Preparation Activities Report and Secretary Edwards' letter.
(b) Demonstrate the validity of the cost estimate.
10.
Provide the documented basis, criteria and the project scope to support L[
the cost estimates for redressing the site should the project be terminated, q
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- 11. At the December 16th meeting, Mr. Silverstrom stated that if the' Commission does not approve the request, then the project will be dead in the water
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in March.
l/t (a) Please explain, including showing what activities will be completed by March and what activities will be ready for the first time in March that were not previously ready.
(b) Why is March, 1982 to. commence the site preparation activities so crucial to the whole project? Identify any special reasons (either
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of a technical or an economical nature) why this date is selected.
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ATTACHMENT B l-1
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ATTACHMENT B SCHEDULE Date 1.
Commission (notice, request) asking for public and Government agency comments on the 50.12 request and providing specific questions to be answ~ced 12/24 2.
Due date for comments and answers to questions 1/18 3.
Due date for responses to comments and answers 1/28 4.
Commission staff report 2/8 5.
Notice of opportunity for oral presentation by applicants and commenters*
2/12 6.
Oral presentation 2/15 7.
Commission decision 3/1 8.
Commission Order announcing decision 3/8 An additional three week's may be required from this point on if an additional set of questions are asked. There will be a two week period for responses to any additional questions to be followed by a one week period for replies to the responses.
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