ML20045E789
| ML20045E789 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 03/12/1980 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-035, SECY-A-80-35, NUDOCS 9307060049 | |
| Download: ML20045E789 (11) | |
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l UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 ADJUDICATORY SECY-A-80-35 March 12, 1980 COMMISSIONER ACTION i
i For:
The Commission From:
James A. Fitzgerald Assistant General Counsel
Subject:
REVIEW OF ALAB-579 (MATTER OF FLORIDA POUER
& LIGHT COMPAliY)
Facility:
St. Lucie Nuclear Power Plant Unit 2
Purpose:
To inform the Commission of an Appeal Board decision /
- gj.I in our opinion,
)
Review Tine Dccires:
March 17, 1980 Discussion:
Intervenors, Hodder, et al., moved the Appeal Board to reopeii~tl e lecord in the l
St. Lucie proceesling..f66 ponsiderM ion:of the consequences;og Class S aooide_nts,;,
i arguing that the-Commission s, decision in.
Offshore Power Systems (Floating Nuclear Power Plants), CLI-79-9, 10 NRC 257 (1979),
has changed general policy.
The Appeal Board denied the motion in ALAB-579 for lack of jurisdiction, because that issue had been raised and decided against them in St. Lucie and subject to judicial review..l_/
Accordingly, the record was nou closed on that issue and the Board found that it lacked jurisdiction to resurrect that issue in this proceeding.
- Instead, In 1974, intervenors unsuccessfully attempted to litigate a 1/
Class 9 accident contention in St. Lucie.
Forida Power
& Light Co. (St. Lucie Nuclear Power Plant Unit 2), LBP-74-55, 8 AEC 117, 124-25 (1974), aff'd ALAB-335, 3 NRC 830, 841 (1976).
On review, the D.C. Circuit affirmed the NRC's dis-position of the Class 9 accident issue and the Supreme Court denied the petition for writ of certiorari.
Hodder v. NRC, 589 F.2d 1115, 9 ELR 20058 (1978), cert. denied, 100 S. Ct.
55, rehearing denied _, 100 S. Ct. 470 (1979).
Information in th:S record vias de!cted m 3tsdante with the free om of Information Chooko, GC 9307060040 930317 Act, exemptions
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-436 PDR
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it referred the matter to staff pursuant to 10 CFR 2.206.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 tmC 694 (1978).
(Intervenors' attempt to relitigate closed financial qualification issue denied for lack of jurisdiction.)2_/ Gn our view "
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Intervenors conceded the general jurisdiction issue but asked the Board either to adopt the approach it used in Black Fox (ALAB-573, 10 imC (Dec. 7, 1979); SECY-A-80-7) or to certify the question to the Commission.
As we explained in SECY-A-80-7A (March 6, 1980), we believe that the Appeal Board in Black Fox erred and that its. decision on treatment of Class 9 issues should be vacated and remanded.
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Recommendations h
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,jJames A. F1tzgerald Assistant General Counsel Attachments:
1.
ALAB-579 2.
Referral to 11RR under
.10 CFR 2.206 Comissioners' comments should be provided directly to the Office of the Secretary-by c.o.b. Monday, March 17, 1980.
Comission Staff Office coments, if any, should be submitted to.the Comissioners NLT March 14, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Comissioners and the Secretariat should be apprised of.when coments may be expected.
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DISTRIBUTION Comissioners Comission Staff Offices Secretariat
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g )N e
ATOMIC SAFETY AND LICENSING APPEAL BOARD 900 co ej 7
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Michael C. Farrar, Chairman
$S gb Richard S. Salzman 1~,
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ID' Dr. W. Reed Johnson q.
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In the Matter of
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FLORIDA POh'ER & LIGHT COMPANY
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Docket No. 50-389
)
(St. Lucie Nuclear Power Plant,
)
Unit No. 2)
)
)
Messrs. Terrence J.
Anderson and Martin Harold Hodder, Miami, Florida, for the intervenors.
Messrs. Harold F.
Reis, Washington, D.
C., and Norman A.
Coll, Miami, Florida, for the applicant.
Mr. William D.
Paton for the Nuclear Regulatory Commission staff.
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February
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(ALAB-579)
On December 12, 1979, the intervenors once again moved 1/
for consideration of " Class 9" accidents-in this proceeding.
1/
"The term ' Class 9 accidents' stems from a 1971 AEC proposal to place nuclear power plant accidents in
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nine categories to take a'ccount of such accidents in preparing environmental impact statements.
That pro posal was put forward for comment in a proposed
'An-nex' to the Commission's regulations implementing NEPA.
36 Fed. Reg. 22851-52 (December 1, 1971).
The nine categories in that ' Annex' were listed in in-creasing order of severity.
' Class 9' accidents involve sequences of postulated successive failure more severe than those postulated for the design basis of protective systems and engineered safety features.
(FOOTNOTE CONTINUED ON NEXT PAGE)
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Their request was premised on the Commission's recent j
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decision in Offshore Power,-
which they construe as l
modifying a previous generic prohibition against con-sidering the consequences of Class 9 events in individual licensing proceedings.
The motion must, fail.
1.
The Licensing Board authorized issuance of a permit to construct St. Lucie Unit 2 in 1977, an action that we approved later that year.--3/
The Commission's elec-tion not to review our decision made it the agency's final 4/
5/
action-and it has now been upheld on judicial review.--
--1/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The Annex concluded that, although the consequences of Cf. ass 9 accidents might be severe, the likelihood of such an accident was so small that nuclear power plar. s need not be designed to mitigate their con-seque nces, and, as a result, discussion of such acci; ents.in.applicantsthEnvironmentalRReportssorcdi.;. __ ihosa p in staff's environmental impact statements was not required. *? ~ <Off shore:: Power. Systems'-(Floating Nucleart"." J '- -
Plants), CLI-79-9, 10 NRC (slip opinion pp. 2-3)
(September 14, 1979) (footnote omitted).
2/
Id.
3/
LBP-77-27, 5 NRC 1038, affirmed, ALAB-435, 6 NRC 541;
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but see text accompanying fn.
7, infra.
_4/
See 10 C.F.R. 82.785(c).
5/
Hodder v. NRC, 589 F.2d 1115 (D.C. Cir. 1978) (decision without opinion), certiorari denied, U.S.
62 L.Ed.2d 36 (1979).
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There remain pending in this case, however, two limited matters for our resolution.
These are (1) the environmental consequences of radon emissions during the mining and milling of uranium to fuel the plant and (2) the stability of the applicant's electri' cal grid.
The 6/
Commission instructed us to hear the former; we expressly retained jurisdiction to consider the latter when we other-wise affirmed the decision below. --7/
Intervenors filed the motion now before us in open hearing while we were taking evidence on the second question.
The applicant and the staff remind us of intervenors' previous unsuccessful attempt to inject the " Class 9" issue into this case and point out that rejection of this conten-8/
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u tion was expressly ypheld,onJudilial re. view.QT, hose parjie~sM"",,
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add that we have no ' authority to adnii,ti'the contention in any
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event.
Pending completion of a rulemaking proceeding contem-plating the establishment of a new general policy on this
_6/
43 Fed. Reg. 15613,.15616 (April 14, 1978).
_7/
Order of October 28, 1977, modifying ALAB-435.
8/
The court of appeals' memorandum order to that effect is unpublished.
It is, however, reproduced
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in the appendix to applicant's brief.
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subject, the Commission has reserved to itself the right to decide whether Class 9 accidents may be considered in proceedings involving land-based plants. --9/
Intervenors ccreede that only the Commission can say whether Class 9 questions are to be taken up.
They never-theless assert that we retain sufficient " jurisdiction" to trigger that determination either by (1) instructing the staff to advise the Commission whether the issue should be 10/
considered-~ or (2) " certifying" that question directly to 11/
the Commission.~~
They ask that we adopt one course or the other and stay completion of these proceedings until the Commission acts. ~-12/
-9/
Offshore Power, supra fn. 1, 10 NRC at.
(slip opinion at 9-10) ;. accord,. Public Service.;Comof!5klahoma Aslack e J._:-
Fox Station, Units 1 & 2), ALAB-573, 10 NRC (slip opinion ati29-32) (Decdmbsru3 04979) ow - <- W+ + rm 1%.ibi om
~~10/ A procedure we adopted in Black Fox, ALAB-573 (supra fn. 9), 10 NRC at __ (slip opinion at 32).
11/
See 10 C.F.R.
- 82. 7 85 (d).
12/
The relief sought by intervenors' amended prayer is an
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order from us:
"1.
staying completion of these proceedings until the Cor. mission has received and acted upon the staff's recommendations with respect to class 9 accident con-sideration at the St. Lucie site or has adopted a new general policy; "2.
directing the staf f to advise the Commission with-in 30 days of the reasons why it believes the conse-quences of class 9 accidents should or should not be considered in this case and granting the other parties 30 days after that advice is given to submit their views on the question to the Commission; and (FOOTN.OTE CONTINUED ON NEXT PAGE)
J 2.
Our action on the intervenors' motion is controlled by Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-513, 8 NRC 694 (1978).
In that case as in this one, a licensing board authorized a construction permit af ter deciding a contention adversely to an intervenor.
There as here, we approved the trial board's ruling and a court of appeals ultimately upheld the Commission's affirmance of 13/
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our decision.-
The Seabrook intervenors later sought on grounds of supervening developments to resurrect the issue previously interred by the board.
As do intervenors in this case, they argued that we were free to act because the exist-ence of discrete if unrelated issues still open before us meant that the proceeding was not final.
We squarely rejected that argument.
We held in Seabrook that after we had relin-
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quish'Ed jhrisdiction over a cause except for limited purposes,
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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
"3.
certifying to the Commission as major and novel the questions of the standards to be applied by the staff in determining in which ' individual cases...
the environmental consequences of Class 9 accidents should be considered,' the procedures by which such staff determinations are to be reviewed, and how the Commission's order in Offshore is to be implemented.
--13/
LBP-76-26, 3 NRC 857 (1976), affirmed, ALAB-422, 6 NRC 33 (1977), af firmed, CLI-78-1, 7 NRC 1, af firmed' sub nom. New England Coalition v. NRC, 582 F.2d 87 (1st Cir. 1978).
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3 where-the appellate' process was otherwise completed we could not admit new contentions unrelate'd to those purposes, j # 's There must be an end to litigation sometime.
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Save for the added factor that these intervenors have
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had a petition for certiorari denied as well, the case at mb 14/
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bar is on all fours with Seabrook.--
It therefore heralds-the result we must reach.
In the absence of a rational.
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and direct link to the lid.ited matters over which we retain f'$
h jurisdiction, we are without authority to consider new or d$'
reopened issues at this stage of the proceeding.
- Accord, esf
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Virginia Electric and Power Co. (North Anna Station, Units 1 & 2 ),
ALAB-551, 9 NRC 704, 708-09 (1979).
We perceive no such 4" erd"'
relationship between the pending radon and grid stability kissues and the environmental consequences of Class 9 accidents.-
We therefore may not accede to intervenors' request to take up that issue now.
This does not leave intervenors remediless.
The staff acknowledges in its brief (p. 8) that a Commission regulation,
]
'i 10 C.F.R. 92.206, " permits a petition to be filed with the Director of Nuclear Reactor Regulation who has discretionary authority to grant the relief sought subject to Commission 14/
And is distinguishable from Black Fox (on which inter-
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venors rely), where the licensing board proceeding was only half completed. ALAB-573, supra fn. 9,110 NRC.at (slip opinion at 32).
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review."
- See, e.g., Public Service Co. of Indiana (Marble
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Hill Station, Units 1 & 2), DD-79-10, 10 NRC 129, 134 (1979).
We must leave intervenors to pursue that path.
Motion dismissed for want of jurisdiction; treating the submissions as.a show cause petition and responses, the papers are referred to the Director of Nuclear Reactor 15/
92.206.
Regulation for his consideration under 10 C.F.R.
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It is so ORDERED.
FOR THE APPEAL BOARD wh
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C. J $n Bishop Secrehry to the Appeal Board 15/
The Director would make the recommendation to the Commission on whether to hear Class 9 events even were we to direct "the staff" to do so.
We have no reason to believe that he will act either arbitrarily or tardily; we intimate no views on the appropriate course for him to take.
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The outcome of this matter to one side, we wish to acknowledge the receipt of particularly helpful and well-reasoned briefs from all parties.
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., i ATOMIC SAFETY ANDi.lCENSING AT PE AL PANEL
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February 14, 1980 6
A MEMORANDUM FOR:
Harold R. Denton, Director Office of Nuclear Reactor Regulation FROM:
C. Jean Bisho Administrative
=cretary ASIAP
'RE:
FLORIDA POWER & LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit No. 2) Docket No. 50-389 Pursuant to ALAB-579, the Appeal Board has referred '
for your consideration under 10 C.F.R. 82~.206 intervenors' motion to consider the environmental consequences of Class 9 accidents at the St. Lucie plant.
Copies of the relevant documents are attached.
Enclosures:
(1)
Intervenors' motion of Dec. 12, 1979 (2)
Applicant's response of Jan. 17, 1980 (3)
Staff response of Jan. 18, 1980 (4)
Intervenors' reply of Feb. 5, 1980 (5)
AIAB-579 of Feb. 14, 1980 cc (w/o enclosures):
All parties Docketing & Service Branch
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