ML20040B129
| ML20040B129 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 01/21/1982 |
| From: | Rawson R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-664, LBP-81-39, NUDOCS 8201250190 | |
| Download: ML20040B129 (11) | |
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s UNITED STATES OF AMERICA 9
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BEFORE THE COMMISSION u n teo em. r ruimg C 4 u.u y*.yu o p'?
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Docket Nos. 50-21i9 TENNESSEE VALLEY AUTHORITY
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50-296 (Browns Ferry Nuclear Plant, l
(License amendment to permit onsite storage of low-level Unit Nos. 1, 2 and 3)
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NRC STAFF PETITION FOR REVIEW Richard J. Rawson Counsel for NRC Staff January 21, 1982 4
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l UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION i
BEFORE THE COMMISSION l
In the Matter of
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Docket Nos. 50-259, 50-260 J
TEf;flESSEE VALLEY AUTHORITY
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50-296
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(License amendment to permit
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(Browns Ferry Nuclear Plant,
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onsite storage of low-level j -
Unit Nos. 1, 2 and 3)
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radioactive waste) 4 i
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NRC STAFF PETITION FOR REVIEW l
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The NRC Staff hereby petitions the Commission pursuant to 10 CFR I
$2.786 for review of the Atomic Safety and Licensing Appeal Board's decision (ALAB-664) vacating the Atomic Safety and Licensing Board's i
denial of several petitions to intervene and requests for hearing (LBP-81-39) and remanding the cause for further action by the Licensing Board.
The Staff submits that Commission review should be granted because the issue presented involves an important procedural issue of law and policy (10 CFR 62.786(b)(4)(i)) and the determination of facts i
i related to petitioners' intervention has been erroneously resolved by l
the Appeal Board ma,iority contrary to the resolution of the same issue 1
by the Licensing Board (10 CFR 62.786(b)(4)(ii)).
I.
SUMMARY
OF THE DECISION BELOW
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By a 2-1 vote of its members,I/ the Appeal Board on January 6,1982 issued a decision (ALAB-664) in this proceeding vacating and remanding l
for further action the Licensing Board's denial of several identical 1
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Dr. Buck and Mr. Edles voted to vacate and remand the Licensing Board's decision; Mr. Eilperin voted to affirm the decision with a modification.
-2 petitions to intervene and requests for hearing on the application by Tennessee Valley Authority ("TVA") for an operating license amendment to authorize for a term of five years the retention onsite of low-level radioactive wastes ("LLRW") produced during normal operation of the Browns Ferry facility.
Petitioners, all residents near the Browns Ferry facility, proferred contentions alleging that TVA had an overall plan (which included incineration) for the management of LLRW produced at Browns Ferry; they contended that TVA, by submitting only the first portion of this alleged plan for NRC licensing at this time, was seeking improperly to segment the plan for purposes of NRC's environmental review.
The Licensing Board denied the requests for intervention after discussing and rejecting each of petitioners' contentions.
Petitioners' allegation that TVA had impermissibly segmented its plan for purposes of NRC's environmental review was rejected because: (1) the portion of the plan submitted for licensing had utility independent of any future licensing action (which petitioners did not dispute); and (2) petitioners did not allege that NRC licensing of subsequent portions of any TVA plan was unavoidable or would be prejudiced by issuance of the license now sought.
The Appeal Board ma.iority held that the Licensing Board had ruled on the petitions to intervene and recuests for hearing " prematurely,"
stating:
"In our judgment, a definitive ruling on the petitioners' requests must await the filing by the staff of its environmental assessment and the opportunity for the petitioners and TVA to comment."
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ALAB-664, 14 NRC at (slip op. at 3).
The majority explained that under Duke Power Co. (Amendment to Materials License SNM-1773 --
Transportation of Spent Fuel from Oconee Nuclear Station for Storage at ficGuire Nuclear Station), ALAB-651,14 NRC (1981), the agency may confine its environmental review to that portion of a multi-step plan for which approval is sought so long as that portion has independent utility and the approval does not foreclose the agency from later withholding approva! of subsequent portions of the overall plan.
In this case, however, the majority found itself unable to apply the Oconee-McGuire standard because the Staff's environmental analysis was not yet connlete:
"[W]e believe the issue of the independent utility of the five year storage proposal, and thus whether the petitioners have ket cut a litigable contention, cannot be decided in advance of the receipt of the staff's environmental assessment which will evaluate the options available to TVA at the end of the five year term of the license. We also believe that the Licensing Board must await TVA's comments on what options it would -- or could -- pursue at the end of the five year period.
- Finally, we think the petitioners are entitled to an opportunity to address the independent utility of the five year storage plan in light of the staff's environmental conclusions."
ALAB-664, 14 NRC at (slip op. at 8-9).
The Appeal Board remanded the proceeding to the Licensing Board "for a fresh look and a new decision after receipt of the staff's environmental assessment of the currently reouested amendments." ALAB-664, 14 NRC at (slip op, at 3).
The dissenting Appeal Board member found Oconee-McGuire, supra, dispositive of this case since " petitioners neither contest the independent utility of the five year storage plan nor claim that its approval will prejudice later environmental reviews...." ALAB-664,
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14 NRC at (slip op. at 25) (Eilperin dissent).
He found no reason for departing in this case from the long-standing Comission practice of
4-ruling upon intervention petitions "near the outset of the proceeding, well in advance of the completion of the staff's environmental analysis or safety evaluation report."
Id. at 28-29. Because petitioners had failed to frame an admissible contention raising any issues about the five year storage application, the dissenting member voted to affirm the Licensing Board's denial of the petitions to intervene and requests for hearing.2/
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II.
ISSUE PRESENTED FOR REVIEW The issue presented for review is:
Whether the Appeal Board correctly determined that a ruling on the petitions for intervention in this case must await the filing by the Staff of its environmental assessment and the opportunity or petitioners and TVA to comment nn the assessment III. WHERE THE MATTER WAS RAISED BELOW j
The Staff aroved in its brief to the Appeal Board that the issues i
presented by the petitions to intervene were ripe fo' decision and were i
correctlydecidedbytheLicensingBoard.S 1
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Mr. Eilperin noted that petitioners' stated concern was with the possibility that an incineration system would be built at Browns Fe rry.
Because it is unclear under Coninission rules whether construction of a facility to house an incineration system can proceed prior to an application for such a system, Mr. Eilperin 1
would modify the Licensing Board's decision to require that TVA give petitioners and the Staff 60 days notice before initiating j
construction of such a facility. Id. at 33, n. 7.
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A Conrnission treeting on the subject of " Revised Licensing Procedures
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(Contentions)" is presently scheduled for January 28, 1982. At this
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meeting the subject of the time at which environmental contentions may be put forward may be raised.
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NRC Staff Brief in Opposition to Petitioners' Appeal of the Denial of Intervention, dated November 25, 1981, at 9-12.
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IV. WHY THE DECISION BELOW IS ERR 0NEOUS As Mr. Eilperin points out in his dissenting opinion, the Appeal Board's decision in Oconee-McGuire should have been dispositive of this case. Under Oconee-McGuire, the two critical issues to be decided in determining whether a seamented environmental review of a multi-step plan is permissible or impermissible under the National Environmental Policy Act b are: (1) whether the portion of the plan submitted for licensing has P
independent utility; and (2) whether approval of the portion submitted will prejudice later decisions by the agency on subsequent portions of the plan. ALAB-651, 14 NRC at (slip op at 9-10).
In this case, however, petitioners have not contested the independent utility of the five yecr storage for which licensing has been requested nor have they claimed that its approval will prejudice future agency decisionmaking.
Accordingly, their petitions fail to raise an issue of impermissible segmentation under Oconee-McGuire and their concerns about future licensing of incineration at Browns Ferry can properly be addressed if and when authorization for incineratien it sought by TVA.
By remanding the proceeding for further action by the Licensino Board after issuance of the Staff's environmental review and after petitioners have had an opportunity "to comment on the relationship between that analysis and their petitions to intervene" (ALAB-664, 14 NRC at (slip op. at 16)), the Appeal Board has permitted, in effect, the late filing of an intervention petition without requiring the 5/
42 U.S.C. 64321 et seq.
showing for a late filing mandated by the Comission's rules.
See 10 CFR 92.714(a)(1); ALAB-664,14 NRC at (slip op, at 23, 27-30) (Eilperin dissent). Those rules contemplate the early identification of the parties to an adjudicatory proceeding and of the issues to be litigated.
The Commission and the Appeal Board have held that rulings on contentions should not be deferred pending discovery or the provision of additional information such as the Staff's safety and environmental evaluations.
See Wisconsin Electric Power Co., et al. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 929 (1974);U orthern States Power Co.
N (Prairie Island Nuclear G;nerating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192 (1973), affirmed sub nom. BPI v. AEC, 502 F.2d 424, 428 (D.C.
Cir. 1974).
The Appeal Board's ruling, which holds that the Licensing Board's decision on intervention was premature and should have been deferred until the Staff has produced further information on which petitioners may base their intervention, is contrary to Commission precedent and at odds with the concept of early identification of parties and issues contemplated in the Commission's intervention regulations.
Petitioners here have had ample opportunity to satisfy the require-ments for intervention of 10 CFR 62.714 -- a demonstration of interest and at least one litigable contention set forth with reasonable 6_/
" Insofar as petitioners intimate a total absence of any helpful material upon which to predicate an intervention petition, the argument is without merit.
Although the regulatory staff safety evaluation, the draft environmental impact statement, and the ACRS review have yet to be completed, petitioners inexplicably ignore the wealth of data available in the voluminous application filed by the utilities...." Koshkonong, 8 AEC at 929.
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Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974). They have had access to TVA's application and environmental report. They have failed, however, to present a single litigable contention to support a grant of intervention in this proceeding.
The Appeal Board acted improperly in raising an issue -- independent utility of the five year storage license -- which petitioners did not cortest and in delaying a decision on whether intervention is permissible until af ter the Staff considers that issue. The factual determination by the Appeal Board that the independent utility of the five year storage plan had not been shown was clearly erroneous.
On its face, the five year storage authorization would have utility no matter what action was later taken -- a fact which petitioners did not dispute.
See ALAB-664, 14 NRC at (slip op. at 25-26) (Eilperin dissent);
LBP-81-39, 14 NRC at (slip op. at 7).
Since the Appeal Board's re,iection of this fact is essential to the Appeal Board's reasoning that the Licensing Board must await the Staff's environmental appraisal before ruling on the petitions to intervene, the error was determinative and requires reversal. The decision of the Licensing Board in this matter should have been affirmed.
1 V.
WHY COMMISSION REVIEW SHOULD BE EXERCISED The decision of the Appeal Board involves an important issue in the conduct of Commission proceedings.
It raises the significant possibility that decisions by licensing boards on intervention petitions will be delayed substantially (to await issuance of the Staff's environmental and safety analyses) in any case in which environmental or safety contentions
have been raised and provides authoritative precedent for indefinite deferrals of decisions on petitions to intervene in such cases. Delay l
in the decision whether to permit intervention will, in turn, delay each
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i subsequent stage of ad.fudicatory proceedings and, ultimately, decisions r
i on the issuance of licenses and license amendments.
The complication l
and lengthening of NRC adjudicatory proceedings which may result from i
t this precedent presents a question of procedure and policy which should l
be censidered by the Commission.
Respectfully submitted, I
Y 5
Richard J. Rawson 1
Counsel for NRC Staff Dated at Bethesda, Maryland this J// day of January,1982 j
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ffilSSION BEFORE THE ATOl1IC SAFETY AND LICENSIllG BOARD In the Matter of
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Docket Nos. 50-259, 50-260 and TENNESSEE VALLEY AUTHORITY 50-296 (License amendment to permit onsite (Browns Ferry Nuclear Plant, storage of low level radioactive Unit Nos. 1, 2 and 3)
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waste)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF PETITION FOR REVIEW" 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, by deposit in the Nuclear Regulatory Commission's internal mail system, this 21st day of January, 1982:
- John H. Frye, III, Esq., Chairman Atomic Safety and Licensing Board Mr. Thomas Wayne Paul U. S. Nuclear Regulatory Commission P tt A Washington, D. C.
20555 un v A a ama 35801 Mrs. Elizabeth B. Johnson Mr. Richard W. Jobe Oak Ridge National Laboratory 1134 Halsey Avenue P. O. Box X, Building 3500 Huntsville, Alabima 35801 Oak Ridge, Tennessee 37830 Ms. Marjorie L. Hall Dr. Quentin J. Stober 1134 Halsey Avenue Fisheries Research Institute Huntsville, Alabama 35801 University of Washington Seattle, Washington 98195 Ms. Uvonna J. Curott 1201 Ingleside l
Herbert S. Sanger, Jr., Esq.
Florence, Alabama 35630 General Counsel Tennessee Valley Authority Ms. Nancy Muse Knoxville, Tennessee 37902 205 Edgewood Drive Florence, Alabama 35630 Mr. Richard L. Freeman Ms. Alice N. Colcock 429 Calhoun Drive 305 Mitchell Court Florence, Alabama 35630 Sheffield, Alabama 35660
- Mr. John Martin Ms. Noel M. Beck Route 1. Box 949 426 North Wood Sheffleid, Alabama 35660 Florence. Alabama 35630 Mr'.' Robert W. Beck Mrs. Betty Martin P. O. Box X Route 1. Box 949 Florence, Alabama 35631 Sheffield, Alabama 35660 Mr. Gregory Tobert Brough 1726 McCullough Avenue Hunt s ville, 'Ala bama 35801
- Atomic Safety and Licensing Board Panel Mr. Michael D. Pierson U.S. Nuclear Regualtory Commission 736 Lily Plagg Road S.E.
Washington, D. C.
20555 Huntsville, Alabama 35802
- Atomic Safety and Licensing Appeal Board Panel Mr. David Ely 1500 Sparkman Drive U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Apartment 6G Huntsville, Alabama 35805
- Docketing and Service Section U.S. Nuclear Regualtory Commission Ms. Debbie Havas Washington, D. C.
20555 517 0'Shaughnessy Huntsville, Alabama 35801 Leroy J. Ellia, III, Esq.
Omer, Ellis, Brabson, McNutt, Stephenson and Tomlin 421 Charlotte Avenue Nashville, Tennessee 37219 Robert B. Pyle, Esq.
P.O. Box 16160 Chattanooga, Tennessee 37416 1
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~ ' Richard J/'Rawson Counsel for NRC Staff 1
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