Text

Partially Withheld Commission Paper to Inform Commission of Two Appeal Board Decisions
	ML20045E800
Person / Time
Site:	Harris
Issue date:	03/21/1980
From:	Fitzgerald J; NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	;
Shared Package
ML20038A409	List: ML20038A408; ML20038A410; ML20038A411; ML20038A412; ML20038A414; ML20038A415; ML20038A416; ML20038A417; ML20038A418; ML20038A419; ML20038A420; ML20038A421; ML20038A422; ML20038A423; ML20038A424; ML20038A426; ML20038A432; ML20038A434; ML20038A435; ML20038A436; ML20038A438; ML20038A439; ML20045E144; ML20045E180; ML20045E183; ML20045E186; ML20045E197; ML20045E207; ML20045E218; ML20045E226; ML20045E237; ML20045E245; ML20045E252; ML20045E789; ML20045E791; ML20045E794; ML20045E800; ML20045E805; ML20045E812; ML20045E817; ML20045E820; ML20045E822; ML20045E828; ML20045E831; ML20045E833; ML20045E835; ML20045E842; ML20045E846; ML20045E848; ML20045E850; ... further results
References
	FOIA-92-436 SECY-A-80-039, SECY-A-80-39, NUDOCS 9307060066
	Download: ML20045E800 (93)
	v • d • e

'. '.

w UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D 0,20555 SECY-A-80-39 March 21,1980 CONSENT CALENDAR ITEM ADJUDICATORY' Fort The Commission From:

James A. Fitzgerald Assistant General Counsel

Subject:

REVIEW OF ALABs 577 AND 581 (MATTER OF CAROLINA POWER ' AND LIGHT CO. )

Facilitv:

Shearon Harris Nuclear Power Plant, Units 1-4

Purpose:

To inform the Commission of two Appeal r

-a---

....o a r..d.deci.sions B

Review Time Expires:

April 11,.1980 (as extended)

Discussion:

In September,1978, acting on a. letter from the Licensing-Board ~which, raised

.m m

doubts about the.tcompletenesszof rthe-od. m a_r administrative -record, '.thencommission "c

remanded the issue of Carolina Power's management qualifications to the Board.

CLI-78-18, 8 NRC 293 (1978).

The Licensing Board held' extensive hearings on remand and issued a supplemental initial decision approving the appli-cant's qualifications.

LBP-79-19, 10 NRC 37 (1979).

The Board had some minor remaining doubts on this issue', and be-lieved that further attention should' be given to.this issue at the operating license (OL) stage.

Thus, in rea,ching its decision, the Licensing _ Board placed a condition on the Harris con-struction permits which would have required a hearing at the operating license stage.

Id. at 98-99.

Staff appealed only from that aspect of the Contacts Mark E. Chopho, GC Inicr:naHon in n S Imid m3 Mcd X-43224

?pfog s 930337 gggh.

qVh CILINSK92-436 PDR

2 decision.1!

In ALAB-577, 11 URC (January 29, 1980), the Appeal Board struck the Licensing Board's condition, but devised its own schedule for OL review of the management qualifications issue, and af firmed the decision as modified.

The staf f has petitioned for review.

In ALAB-5 81, 11 NRC (February 20, 1980), the Appeal Board denied the applicant's motion for modification of the schedule set in ALAB-577.

The applicant has petitioned for review.

g/.i which we be-l 1ieve L

1.

ALAB-577 ( Attachments 1 and 2).

In ALAB-577, the Appeal Board rejected the Licensing Board's assertion that it Commission's had authority,.as _t.he,^b0ddftion;3)n th,e ce Se c

i-delegate, to impose &

, "it"W e construction perMt itodeqUir6rari:

27 operating license hearingr The' Appeal.t"#d ~'*

Board based this decision on 10 CPR 2.104, which permits a hearing on an operating license only if requested by a person permitted to intervene or if ordered by the Commission.

The hearing determination under that section is triggered by an assessment of. the facts as they exist at the time the applica-tion is filed and not at the CP stage.

Finally, Commission - practice has been that Boards do not have "the authority to direct the holding of hearings following the. issuance of a construc-tion permit. "

Florida - Power and Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4),.4 AEC 9, 15-16 (AEC 1967).

Thus, the Appeal Board 1!

No party has challenged the substance of the decision.

Similarly, the applicant' did not appeal the supplemental decision but noted by letter that it sympathized with the j

staff position.

)

i e

3 vacated the conditions imposed by the Licensing Board on the Harris CP.

ALAB-5 7 7, slip op. at 13-23.

Even though it agreed with the staff that the Licensing Board lacked authority to require an OL hearing, the Appeal Board stated that the Licensing Board should "give expression to both its residual concerns respecting the appli-cant's management capability to operate the facility and its present belief that a hearing on that issue at the operating license stage would be in the -

public interest."

ALAB-577, slip op.

at 24, 25-26.

The Appeal Board con-cluded that, in deciding whether to have a hearing on the operating license, both interested persons and the Commission would benefit from a preliminary assessment of the manage-ment qualifications issue as presented in the OL application-at the time of the publication of the notice of pro-posed issuance of the license (10 CFR 2.105), which provf4esdat;egeged per-,2

$ _. sons-thenopportunity to;. intervene. andi -. -

request a hearing. -The-Board ordered 0

e f

f 4

4 this approach in ALAB-577.2/

The Board recognized that its decision to order the staff to prepare such an evaluation for the Commission to facili-tate a decision on whether an OL hear-ing on the matter is appropriate is not four-square with_the Commission's "early notice" policies that underlie '

10 CFR 2.105.

Those policies dictate that the staff should publish a Federal Register notice as soon as the accept-ance review of the OL application is complete and before staff completes its in-depth evaluations.

37 Fed. Reg. 15127, 15128 (July 28, 1972).

However, the Board concluded that the "early 2/

The staff was directed, ALAB-577, slip op. at 35-36:

to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in con-nection with any application for the Shearon Harris facility unless and until:u. ccc..: ::.

.r_

:w u m.

(1)

The staf f has' conductiWd'T-o'nt 'NeTT' ' "'"." TWC P '

~~

t

~~

~ ~ ^

basis of the content of the operatingelicense-application and supporting doedmentation' '

(together with any other pertinent informa-tion then at its disposal), a preliminary evaluation of the applicant's capability to manage the operation of the f acility in con-formity with all regulatory requirements which have or may be imposed in the interest of the protection of the public health and r

safety; and (2)

The findings and conclusions reached upon that evaluation have been (a ) made pub-licly available in written form; and (b) brought specifically to the attention of the Commission with an accompanying reference to both the Licensing Board's supplemental ini-tial decision and our decision today.

It is further directed that, pursuant to 10 CFR 2.105(b)(2), the notice of opportunity for hearing (if one is issued) set forth the manner in which a copy of that analysis may be obtained or examined.

e

5 notice" provision does not " carry with it the notion that there must be blind adherence to [it) even in special situations such as that presented here" and "that some deviation from that course is permissible (if not obliga-tory) where exceptional circumstances bearing upon health and safety warrant it."

ALAB-577, slip op, at 29-30.

The staff agreed with that result but disagreed with the Appeal Board's power to require a preliminary evaluation before issuance of the notice of oppor-tunity for hearing.

The staf f peti-tioned for review of ALAB-577, stating that only the Commission can order staff administrative actions and that ALAB-577 has the ef fect of Boards managing the staff in essentially administrative areas.

2.

ALAB-581 (Attachments 3 and 4).

The applicant did not petition for review of ALAB'-577f buti hiived Die" Boa'rd E

E5h R to reconsider ' itis I:idndfti'o'n, and[ modify l. i.f "~ '

it to provide 'for tw'o notices of hear ~ "'

~

ing:

one at receipt of the OL applica-tion for general intervention, followed by a staff assessment on the management qualifications issue, and then followed s

by a second notice limited to that issue.

The applicant stated that, because it anticipated an OL hearing anyway, it did not seek review of ALAB-577.

Its concern was limited to minimiz-ing delay in processing the OL i

I application.

The Board denied the motion, believing the applicant's proposal would not improve the process outlined in ALAB-577.

See ALAB-581, slip op. at 10-12.

The Board recited the rationale under-lying its decision in ALAB-577 and saw no need to depart from those - conditions.

f.

J.

J l

1 i

I 6

I The applicant has now filed a petition for review in large. part endorsing the staff's arguments on ALAB-577 and o

adding that it believes the Appeal Board of fered a " dubious"' basis for denial-of its motion.

)

OGC Analysis

' ]. '.

.i

')

'It is important to note that i

<l 1

i e y..c

-l 7

i i

1 i

J i

2d5P.wer.believe:. ?,'? W Ci c: I

..,;:c : W -- S :;;i9::

r.4,, l

.~

~ u t

=

L.-

........~l In recommending-i l

-I l

i we do not'believe that-f, e

9 C r; $

Recommendation:

1, i

f"

(

James A. Fitzgerald-Assistant General Counsel Attachments:

1.

ALAB-577 2.

Staff Petition for Review 3.

ALAB-581 4.

Applicant's Petition for Review 5.

Draft Order-Comissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, April 3,1980.

Comission Staff Office coments, if any, should be submitted to the Comissioners NLT March 31, 1980, with an information copy to the Office of the Secretuy.

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 expectC

- 1 This paper is tentatively scheduled for affinnation at an Open Meeting during the Week of April 7,1980.

Please refer to the appropriate Weekly Comission Schedule, when published, for a specific date and time.

1 DISTRIBUTION Comissioners Comission Staff Offices Secretariat 4

4 0

.n...

A

~y s.

a e-

,a

-r-n 2

,, * -~. - * - -

-2 a a.

n-+-

a s-a-r-

+.a--.

g 9

A '

L I-t

=

w 9

ATTACRMENT 1

..F.-

e4t.T'.

L e" r' - 4 w.o r.

1 e ed 4*% 4 4 as #* 1 P

'eu 4 4

)

b I

1 s

O-9 -

e l

l

... _. -, ~,

m

,1 W

/.:

UNITED STATES OF AMERICA 9

NUCLEAR REGULATORY COMMISSION p

00 ATOMIC SAFETY AND LICENSING APPEAL BOARD sy e

3o d.

Alan S. Rosenthal, Chairman b

4 Dr. John H. Buck f

Michael C. Farrar g

J AM 3 0' iS sEavto

,g

)

In the Matter of

)

CAROLINA POWER AND LIGHT COMPANY

)

Docket Nos. 50-400

)

50-401 (Shearon Harris Nuclear Power

)

50-402 Plant, Units 1, 2, 3, and 4)

)

50-403

)

Mr. Edwin J. Reis for the Nuclear Regulatory Commission staff.

l.

\\,J l'.'DEdIbiON),

^ ~ '. - -

E~i _~ ~

~

2-:-

......._.._....;_L.

.o.

January 29,'1980 t.

(ALAB-577)

This construction permit proceeding involves the four units of the proposed Shearon Harris nuclear facility to be located in North Carolina.

In January 1978, the Licensing-1 Board rendered an initial decision in which it authorized 1 the construction of the facility.

LBP-78-4, 7 NRC 92.

Later that year, on the appeal of the joint intervenors,

/

1 1/

Conservation Council of North Carolina and Wake-En-vironment, Inc.

The appeal was confined to a single issue, the need for the power to be generated by the facility.

1A,,

_. ~., _

~

,.nc

. 8 NRC 234. 2[

we affirmed.

ALAB-490, What now brings the proceeding back to us is a supple-mental initial decision rendered by the Licensing Board last July, 3/ following a further evidentiary hearing directed by a Commission order issued subsequent to ALAB-490.

See CLI-78-18, 8 NRC 293 (1978).

In that supplemental decision, the Board imposed an additional condition upon the Shearon Harris const ruction permits.

Asserting that the Board exceeded its the NRC staff has appealed jurisdiction in taking that action, and asked us to strike the condition.

None of the other

~

parties to the proceeding has filed a brief in response to the appeal (although the applicant advised us by letter, without elaboratio'n,"that it ' agrees with the' staff). 'At'our'

~ "

~

invitation,however,theBoardbelowrecentlysuhpliedus

~

_2 /

The af firmance embraced the need-for-power issue raised by the appeal, as well as (on sua sponte review) all other issues considered by the Licens-ing Board except for that of the environmental effects of radon (Rn-222) generated in the course of the mining and milling of uranium.

Decision on that generic matter was deferred pending the out-come of our exploration of it in other licensing See 8 NRC at 241-42, 244.

An evi-proceedings.

dentiary hearing on radon releases is now scheduled See Philadelphia Electric Co.

for late February.

(Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-566, 10 NRC (October 11, 1979).

_3 /

LBP-79-19, 10 NRC 37 (1979).

. with a memorandum in elaboration of the basis for its con-clusion that it possessed the authority to impose the con-dition in question. 4/

I.

A.

The background of the present controversy is this.

When the proceeding was first before it, the Licensing Board requested the staff to address certain specific ques-tions relating to its assessment of the management capabil-ities of the applicant.

The staff did so through the testi-mony of two supervisory inspectors assigned to the Commission's regional office having territorial jurisdiction over North Carolina.

Those witnesses alluded to certain problems which r..=c

.-- c.n

v. ',. --

.9,

=-=~.r, had been encountered.at other nuclearafacilities; owned-and-r.- Lie

.L.

operated by this applicant.

They went on, however, to take note of corrective measures which the applicant 'had taken to s

obviate a repetition of those problems and stated that they did not have any present concerns regarding the applicant's ability to manage the construction and operation of Shearon Harris.

In its initial decision, the Board cite.d this testi-many and expressly noted that it was " satisfied with the re-LBP-sponses to its questions regarding management

78-4, supra, 7 NRC at 108-09.

LBP-80-3, 11 NRC (January 14, 1980).

With our leave,

_4_/

the staff responded to that memorandum in a January 23, 1980 supplemental memorandum of its own.

9

1 i

_4-In April 1978 (some three months af ter the initial de-i cision had been rendered and while the intervenors' appeal from it was still pending before us), the staff brought to our attention the fact that one of the line inspectors at the applicant's two-unit Brunswick facility (which is in operation) believed that "his views on the management capa -

i bility of [the] [alpplicant to staff and operate the Harris facility had not adequately been presented to the Licensing Board".

In this connection, the staff transmitted copies of the handwritten notes which the line inspector.apparently

.y had given to the supervisory inspectors at their request "to

~

assist them in the preparation of.their testimony. b/

<w

...c..

.,...w

~~...

In ALAB-490',-we. referred to othese : developments = and, ex " ~ -

?

.m e

pressed concern respecting the. depth ~~of^the~ interrogation of-u---

the supervisory inspectors by the Licensing Board.

Although j

nonetheless perceiving no necessity to call for a further ex-ploration of the management capability matter, we admonished the staff "to keep the construction and operation of the Shearon

_5/

While correctly regarding itself duty-bound to ap-prise us of the line inspector's thinking on the matter, the staff expressed the opinion (1) that the " factual content" of his notes was adequately reflected in the testimony of the supervisory in-spectors; and (2) that the supervisory inspectors' conclusion that the applicant is competent to con-duct and operate the Shearon Harris facility was supported by the record.

For these reasons, the staff opined that there was no occasion "to take the matter further".

April-18, 1978 letter from staff counsel Charles A. Barth to the members of this Board, at pp. 1-2.

, Harris facility under particularly close surveillance to in-sure that the remedial measures (said to have been initiated by the applicant) indeed prove to be effective * * *".

8 NRC at 244.

Our handling of the staff disclosure did not please the Li-censing Board.

On August 30, 1978, just a week after ALAB-490 came down, that Board sent a letter to the Commission in which it expressed (1) its agreement with the line inspector that his views had not been adequately reflected in the testimony of the supervisory inspectors; and (2) its belief that it had

=

been misled by that testimony.

Taking the Board's letter as raising a question regarding "the integrity of the adjudica-tory process in this proceeding",._the Commission responded to

~

it by, inter alia, remandinc[tfhid h[dciidliig t'd tile"ficehising#_.

~

Board "for a further hearing on the management capabilities of

[the applicant) to construct and operate the proposed Shearon Harris f acility without undue risk to the health and safety of the public".

CLI-78-18, supra, 8 NRC at 294.

At the hearing on the remand, the Licensing Board B.

-took the testimony of a substantial number of witnesses for the applicant and the staff. 5!

Thereaf ter, proposed findings 6/

The names and positions of most of those witnesses are forth in the supplemental decision.

LBP-79-19,

~~

set supra,- 10 NRC at 4 3-44.

As is there seen, they included (FOOTNOTE CONTINUED ON NEXT PAGE)

- of f act anc conclusions of law were filed by those parties.

(Although actively participating in the hearing, neither the joint intervenors nor the State of North Carolina did like-wise.)

In its supplemental initial decision, the Licensing Board reviewed the evidence before it in commendable detail.

On the basis of its analysis of the disclosures of record, it reached the conclusion that the applicant possesses the requisite " management capability and technical qualifications 2-to design and construct" the Shearon Harris facility.

LBP-79-19, supra, 10 NRC at 95.

With respect to f acility operation, the Board determined at this Eonsdr"udtToYpYr5df sTa#[e',#~ tite kphiitait ii 2F Y 1 25 " '

c

that, burden is to establish that "there is now 'a reasonabl[~ prob-~

~ ~ ~ ~

~'

~

ability that it will timely have the management. capability and technical qualifications to operate the plant without undue risk to the health and safety of the public".10 NRC at 95. This determination rested upon the provisions of 10 CFR 50.34 (a) (6),

6/

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) several high-ranking officials of the applicant, as well as supervisory and line members of the staff of the two Commission offices directly involved with the matter:

Nuclear Reactor Regulation and Inspec-tion and Enforcement.

Among the latter were the two supervisory inspectors who had appeared at the ear-lier hearing and the line inspector whose concerns had prompted the remand.

i 1 which require the Preliminary Safety Analysis Report sub-j mitted in connection with a construction permit application to contain "(a) preliminary plan for the applicant's or-j ganization, training of personnel, and conduct of operations".1/

Much of the evidence on this score related to problems encountered in the operation of the applicant's Brunswick nuclear f acility between 1974 and 1977.

See 10 NRC at 74-95.

j 1

The Licensing Board took this evidence to establish " clearly" that the quality of the applicant's management during that period " fell below desirable levels, even according to (the applicant's] standards".

Id. at 96-97.

Indeed, as the Board saw it, certain of the problems were "the proximate result

- ~ "e J ~+'e of management fallure".~gd. at-97r

~~-

-==

~ *

=.LQp y t., _ - i tf '1 -- s 'n ~ : l=..

-:-.~,

r The Board both acknowledged and noted its agreement with (1) the insistence of the applicant that effective ac-tion had been taken to solve the problems and (2) the staff's belief that the applicant's operations have considerably im-proved in recent years; were this not so, the Board added, 7/

The Board stated that, in light of 10 CFR 50.34 (b) (6) and (7), "(s]pecifics of the operational plan, in-

-~

cluding its managerial and administrative controls, j

may be deferred until the application for an operat-ing license" (and the accompanying Final Safety Analysis Report) is filed.

Thus, in the Board's view, Section 50.34 (a) (6) " requires a reasonable show-ing" that the ap licant will be able to comply with Sections 50.34 (b (6) and (7).

10 NRC at 9 5.

. it might have been constrained to suspend the Shearon Harris construction permits. Ibid.

Nonetheless, according to the Board, there was sufficient residual doubt regarding the applicant's management capability to operate Shearon Harris that a dem-onstration of such capability should be required in an adju-dicatory proceeding at the operating license stage.

Ibid.

To this end, the Board imposed upon the construction perndts the following additional condition:

(ix)

At an appropriate time during the re-view of the application for the operating license of the Shearon Barris Nuclear Power Plant, the Staff shall inplement the neces-sary actions to enable the Secretary to is-C sue a notice of hearing on said application to be published in the Federal Register re-quired under 10 CFR 2.104.

In addition to the other requirements of Section 2.104, the notice 'of tearing. sha11: state. thatithe 'presid -

n-: v =w ing officer will consider (in addition to any -

^^ ~ ~ ~"

~

other matter which may be in controversy) ~

whether the Applicant has the management capability and is technically qualified to engage in the activities to be authorized by the operating license in accordance with the regulations of 10 CFR Chapter 1.

Id. at 98.

It is this condition of which the staff complains.

Al-though not contesting the basic factual findings upon which the condition was founded, it insists that, in acting upon construc-tion permit applications, licensing boards are not empowered to direct the triggering of an adjudicatory proceeding at the O

operating license stage.

Beyond that, according to the staff, the Board below " misconstrue [d] the regulations, policies and standards of this Commission" in concluding that its reserva-

~

tions regarding the applicant's capability to operate the fa-cility constituted sufficient reason to require _such a pro-ceeding.

Br. p. 16.

II.

It is settled "that, as a general rule, we will entertain an appeal from a licensing board ruling 'only if the appellant can establish that, in the final analysis, some discernible injury to it * *

has been sustained as a consequence of Northern States Power Co. (Prairie. Island Nu-the ruling'". _

clear Generating Plant, Units 1 and 2),, ALAB-252, _8. AEC J175.,

mir m..

1177 (1975), 0/ quoting from Toledo Edison Co. (Davis-Be's s e

~

Nuclear Power Station), ALAB-157, 6 AEC 858, 859' ' (' 19 7 3 ).

We must thus cons,ider at the threshold whether (1) harm to the staff has been or might be sustained as a consequence of the Board-imposed requirement that, at the appropriate time, it i

trigger an adjudicatory proceeding on the application for an operating license; or (2) there is adequate cause to allow the appeal by way of an exception to the general rule.

]

_8/

Affirmed without reaching that point, CLI-75-1, -1 NRC 1 (1975).

i 1

i 4

i 10 -

At our direction, the staff addressed these questions Its fundamental position is that there is no in its brief.

need for it to establish that the challenged Licensing Board Rather,

action will or might occasion direct harm to itself.

we are told, it is enough that the staff is seeking here to vindicate its interest in protecting "the integrity of the Commission's processes" (which it considers to be jeopardized In this connection, it is as-by the condition in issue).

serted that " [w]hile the [s]taff may not ordinarily be treated

[it) does any differently than any other party to proceedings, we have special duties and responsibilities that affect the hearing process".

Br. p. 4.

~5<

W Although thus disclaimi~ngranylbligation to e'stablish,

tu.;p

=~2

===a

== n y ang-ya yrcaa.

actual or potential injury ~ to itTelf ? the~sYaffloe~s' on~to't maintain that it "has been discernibly harmed" by the condi-Specifically, it is said, the Board below has both tion.

foreclosed the Director of Nuclear Reactor Regulation from issuing an operating license for Shearon Harris on his ovn S!

Br.

and has directed the staff to take specific actions.

1

p. 8.

1 Neither of these lines of argument is free of difficulty.

Fortunately, however, we need not pass ultimate judgment upon For there is another, and to us more compelling, reason them.

More recently, the Commission suspended for now the au-thority of the Director to issue an operating license in 9/

circumstances where no adjudicatory be ring has been con-In such circumstances, Commission authorization ducted.

is required.

44 Fed. Reg. 65049 (November 9,1979).

. supporting the acceptance of the appeal.

In Prairie Island, ALAB-252, supra, we entertained a staff petition for reconsideration of our ruling that, sub-ject to certain qualifications, intervenors are to be af-forded the opportunity to cross-examine on those portions of a witness' testimony which relate to matters which have been placed into controversy by at least one of the parties to the proceeding.

We did so notwithstanding the f act that the ruling patently had occasioned no injury to the staff in that proceeding.

Our rationale was the existence of " extra-ordinary circumstances * *

which warrant a departure from the general rule enunciated in Davis-Besse".

More specifi-

cally, v

=c," % -L: C inr.dui: C. P d s.,5s?.,9t.[ Gin._.h. _ ( 7 %

The holding to which the petition for re-consideration is addressed'could well have an impact upon the course of many licensing hearings.

Unless and until overturned by action of either this Board or some higher authority, it will be binding upon the li-censing boards -- in proceedings now under way as well as in future cases.

And offi-cial notice can be taken of the f act that an appreciable number of licensing proceed-ings involve, as did this one, multiple intervenors with different admitted conten-tions.

In short, the staff is not asking that a second look be taken by us on some relatively minor point of law of uncertain prospective significance.

Ra ther, the petition goes to a legal issue of clear recurring importance, even though (wholly fortuitously) the disposition of this case j

did not hinge upon it.

This being so, it

. seems altogether proper that, instead of brushing the petition aside on the au-thority of Davis-Besse, we examine the merits of the staf f's arguments to ascer-tain whether there is substance to its insistence that our cross-examination holding should not stand.

8 AEC at 1177-78.

Like considerations appear to be present with respect to the condition under attack here.

To be sure, at least inso-no other licensing board recently has far as we are aware, sought to impose such a condition on a construction permit.1S!

And it is equally true that the course of the adjudication

)

=

~

of the management capability issue in this proceeding took For all of that, however, the juris-a rather unusual turn.

dictional question / whlch 'the staf ff wouldihave us Edecide?.,L ' n--

r cannot be dismissed as of little or no"precedential impor Ei

~

To the contrary, there is a reasonable probability tance.

if permitted to stand, the remedy chosen by this Li-

that, censing Board will be invoked by future construction permit boards entertaining similar doubts regarding the ability of an applicant to meet all regulatory requirements associated with later reactor operation.

In short, without deciding whether it has justifiably cast itself in the role of a guardian of the " integrity of the Commission's processes," we can agree with the staf f But see National Bureau of Standards, 2 AEC 273, 276 10/

(supplemental initial decision) and 2 AIC 323 (Commis-

~-

sion decision 1963); Florida Power and Light Co. (Turkey 3 AEC 195, 202, Point Nuclear Generating Units 3 and 4),

(FOOTNOTE CONTINUED ON NEXT PAGE)

that the question it has put before us merits our examina-tion and resolution irrespective of the matter of discern-ible injury.

On this basis, we now proceed to the merits of that question.

4 III.

At the foundation of the staf f's attack upon the condi-tion in issue is an unassailable premise:

that licensing boards possess only such powers as have been conferred-upon them by the Commission either by regulation or otherwise (e.g., in the notice of hearing for the specific proceeding -

or by adjudicatory order).

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-316, '3 NRC 167, 17 0-71 (19 7 6 ).

Advancing from this premise, the staff ' insists thhWconstricti64?pimit91ctirtAO"!" *I'E'i h

ssucnce nr r.n c naric-c_ nee:2n.

ing boards generally and' this' Licensing Board'in partic-

~

ular have not been clothed with the authority to' direct the staff to institute an adjudicatory proceeding at the operating license stage for the purpose. of considering one or more specified' issues.

This conclusion is said to be compelled by a collective consideration of (1) the Commis-sion's regulations in implementation of Sections 185 and 189a.

of the Atomic Energy Act of 1954, as amended;bb/ (2) the 10/

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 205 (initial decision) and~4 AEC 9, 15-16 (Commission

~~

decision 1967); Florida Power Corp. (Crystal River Unit 3 Nuclear Generating Plant), 4 AEC 166, 170, 173 (initial I

decision 1968) and 4 AEC 318, 320-22 (Commission deci-sion 1970).

11/

42 U.S.C. 2235, 2239 (a).

. notice of hearing which initiated this proceeding; and (3) the 1978 order remanding the proceeding to the Board below for further exploration.

A.

By virtue of Section 189a. of the Act, a hearing is required on construction permit applications.

No similar requirement is imposed with regard to operating license applications.

Rather, "in the absence of a request (for a hearing) by any person whose interest may be affected", this Commission may "i'ssue an operating license * *

without a hearing, but upon thirty days' notice ard publication once

~

in the Federal Register of its intent to do so".

Before taking this action, however, the agency must find,.as provided in Section 185, that the f acility "has been con-structed and y111[oph~ratk in,confoMtym i_th the app 1;ication-3m-3 5

~

w a

asamendedandin_ conformity.with[,Ut[provisionsof.this.Act.

and of the rules and regulations of the Commission."

This basic licensing scheme was carried ova; into 10 CFR Part 2, the Commission's Rules of Practice.

In sub-stance, the Rules require the issuance of a notice of hear-ing on every application for a construction permit.

If, how-ever, an operating license application is involved, a notice of hearing is to be issued ab initio only in circumstances where "the Commission finds that a hearing is required in the

~

. public interest".

In the absence of such a finding, a notice of the proposed issuance of an operating license must be published in the Federal Register; this notice must, inter alia, provide for the filing of intervention petitions and requests for a hearing on the part of "[a-)ny person whose interest may be affected by the proceeding".1 !

In the event that at least one such re-quest and petition is both filed and granted, a rotice of hear-ing then is forthcoming.13/

Othe:aise, the operating license See 10 CFR 2.104, 2.105.1A/

may be is sued without a hearing.

12/

In the case of a construction permit application or a Commission-ordered hearing on an operating license ap-the. opportunity to seek intervention' is ex-plication,hter'e's ted "w:

1 eYsohfiipdddj~tifictTo~rP"wFth"tTe %"

5 tended to issuance of.the_ notice of hearing._

If thus initiated, the adjudicatory proceeding on an 13/

operating license application is confined to the mat-

-~

ters placed into controversy by the parties, together with any other matters which the Licensing Board (or this Board or the Commission on appellate review) deems worthy of consideration.

See 10 CFR 2.760a.

14/

A notice of issuance of the license must be published in the Federal Register.

The notice must contain,

~~

inter alla, a finding that the application for the li-cense complies with the recuirements of the Atomic See 10 Energy Act and the Commission's regulations.

CFR 2.106.

Although Section 2.105(e) authorizes the Director to issue the license, 'as earlier noted (see fn. 9, supra) that authority was recently suspended and action by the Commission itself is now required.

l

. As appears from its January 14 men. _ndum, LBP-80-3, i

i supra,11! the Licensing Board rests its authority to impose the condition in issue upon the proviso in 10 CFR 2.104 (a) that, even though not mandated by statute or regulation, a hearing will nonetheless be held on an operating license application if "the Commission finds that [it) is required in the public interest".

In the Board's view, it is empowered to make a finding to that effect under its delegation to con-duct this adjudicatory proceeding on the Commission's behalf (i.e., it is vested with all of the authority conferred by Section 2.104 upon the Commission itself).

See 11 NRC at

.bb!

For the purposes of the Rules of Practice, the term

" Commission" has Aeencexplicitly,fefined.to._ include "the._j w y _, e.-

Commission of five-members 1or: a quorum thereofcsitting as a.,

m gp c

body * *

or any officer to whom has been delegated authority pursuant to section 161n of the [ Atomic Energy] het".

10 CFR 15/

In its supplemental initial decision rendered last July, the Board did not address the jurisdictional question to Hence, the reasoning underlying its conclu-any extent.

sion on that question is to be found exclusively in the January 14 memorandum.

Needless to say, as employed in this opinion references to 16/

"the Commission" are to the five commissioners function-ing as a collegial body.

(Absent a contrary indication, that is the meaning that normally is to be ascribed to such a reference when found in an appeal board opinion.)

.. ~

~ - --

E. -

17 -

i

2. 4 (e).12/

Given this definition, we can readily concur.with the Board below that Section 2.104 (a) cannot be taken as,.on its face, requiring that the public interest finding be made by the Com:nission and no one elso.18/ We can further agree that the challenged license condition is fairly read as embracing such a finding insofar as the management capability issue is concerned.

But acknowledgement of the force of the Board's position on these scores is not the end of the matter. _ There remains the question of the timing of the finding.

Implicit in the reasoning of the Board below is a belief that Section 2.104 (a) authorizes the making of the finding at' any time. _ More specifically, the necessary, albeit unspoken,

~

-~ _... _.

assumption is that lhe Section -contemplate's-that the Commission"- -

r 2-;

c.. ;;c,.

m -

,._m.m._._

(or its delegate) ' might appropriately ~ fin.d'that a'hearins on' '"Nin-an operating license application is required in the public inter-est notwithstanding that, at the time the finding is made, the application has not as yet been filed -- and, indeed, might be i

still years in the of fing.

As we see it, however, the Section cannot reasonably be so construed.

Rather, read as a whole, 17/

The definition of "cocmission" contained in 10 CFR

1. l (b), cited by tie Licensing Board, is in terms applicable only to Part 1. of' 10 CFR.

Thus, it is the Part 2 definition which controls here.

18,/

For reasons we do not regard as particularly con-vincing, the staff' argues that "[t]he boards are not delegates of the Commission under this provision of the' regulations".

Supplemental rercrandum, p. 5.

As i

will shortly become clear, it is not necessary to dwell upon those reasons here.

See fn, 20, infra.

y r er n

,e6

w

4

r I

4 4

18 -

r the Section conveys the message to us that the finding (1) is to be made only after the filing of the application and (2) should be founded on the content of that application together with all current available information having a bearing upon.

the need to hold an evidentiary hearing irrespective of.whether-one might be requested by the applicant or an interested person..

This very case amply illumes why this-is the sensible in-terpretation of Section 2.104 (a).

In light of the factual disclosures in the record before it, the Licensing Board well

^

may have had good cause to harbor some residual doubt respect-ing whether, when the Shearon Harris facility is completed and ready to go on line, the applicant will possess the requisite,

=

.= :a zr.w m-c

... w.: ~...

um :-=.,...

management capability to operate it satisfactorily.

And,

_ g.... o _

m.-

c: a g g. e,..a..

cg.,

g..m 3wm: wn..y understandably and commendably, the Board wisties to insure before the facility is licensed for operation, the

that, foundation for the doubt has been removed.

But, although it l

may now appear to the Board that this objective can be best accomplished by a reexamination of the management capability issue in an adjudicatory hearing at the operating license stage, once that stage has been reached a quite different conclusion may have become warranted.

At that time, for' example, it might clearly appear that the applicant in fact 1

has rectified each of the shortcomings in the management of I

r

,e c-4.-,-

.i

, its other now-operating nuclear f acilities which had given rise to the Board's doubts -- and that there is no longer any reason to be concerned respecting its ability to operate Shearon Harris properly.

In such circumstances, there would be at least room for serious question whether a hearing on the management capability issue need be held "in the public interest" despite the lack of a request for one by any inter-ested person.

In short, the vice of the Licensing Board's condition is that it prescribes future procedural action of an extra-ordinary character on the basis of a present set of facts which may materially change in the interim.19/

We cannot ac-cept the Licensing Boardts ' thesis that,pection 2.104,("a). wa_s _in

-.-==...

.n=

~

.~.. _ m

.n n.--

=. - - ~.

tended to sanction such a course.

Rather,- once,again,- we. are

3.. ; m. _._

satisfied that the Commission's contemplation was that any i

finding that the public interest dictates the conEuct of an otherwise non-required hearing on a license application will rest upon a contemporaneous appraisal of the various relevant factors -- Caereby giving the finding the support which it obviously will lack if founded instead upon stale information acquired years previously.20/

19/

Cf. Arkansas Power and Light Co. (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25, 30-31 (1973).

23/

It follows from the foregoing discussion that, because a construction permit board's jurisdiction almost in-variably will have terminated by the time the operating (FOOTNOTE CONTINUED ON NEXT PAGE)

. i B.

The Licensing Board has not suggested that either the notice of hearing which initiated the construction permit proceedingE1/ or the Commission's remand order in September 197832/ might supply an alternative basis for its authority to order an evidentiary hearing at the operating license stage.

And it is clear that they do not.

The notice of neither hearing was entirely unexceptional in its content; in terms nor by implication did it confer upon the Licensing Board any special powers beyond those enjoyed by construction permit boards generally.

Similarly, the remand order is de-void of anything which might be thought to allow the Board, upon its further exploration of the management capability is-sue, to take action which would have been beyon.d the authority

~

r+" &.-;5=. 5 2 = 7 n p ;,

~

1

.~^.

..v :

of any other licensing board considering the same issue in the ~

context of a construction permit application.

True enough, in carrying out its adjudicatory responsi-bilities, a licensing board has broad authority to impose conditions on the sought permit or license which require that certain measures be taken relating to plant construction 20/ (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) license application is filed, such a board will rarely,

~~

if ever, be in a position to make the Section 2.104 (a)

"public interest" finding on the Commission's behalf.

21/ 37 Fed. Reg. 20344 (September 29, 1972).

22/ CLI-78-18, supra.

. or operation in the interest'of safety or the preservation j

of environmental values.

But that authority has never been held to allow a condition which, in effect, triggers the q

initiation of a new and independent adjudicatory proceeding j

at a later date.

Indeed, it is well-settled that licensing boards are not empowered to take such a step.

More than 12 the Commission flatly stated that it had "not years ago, delegated to atomic safety and licensing boards the autho.rity to direct the holding of hearings following the issuance of a construction permit".

Turkey Point, supra fn. 10, 4 AEC at 15.22/

Whether or not the Licensing Board is right in its characterization of that statement as dicta, it nonethe-less must be accepted as reflecting the view of the Commission on the point ht_ Uhat hime.NEhd Eheite hhUlbh'~5ee5fnd$inateriaF

~

t i

alteration in th'e scope o5 ~the'C55miss).on s'd'elegati6n 'to the # -

i licensing boards since Turkey Point -- either by. rule change or otherwise -,21/ the statement is still entitled to our respect.

23/

SUMMARY

OF DECISION ON WHICH REVIEW IS SOUGHT This proceeding involves a remanded construction pemit application hearing that focused on the management capability of \\he Applicant to construct and operate the four Shearon Harris nuclear generating units.U Upon conclusion of the hearing, the Atomic Safety and Licensing Board ordered that previously issued construction permits be conditioned to require that hearings be held at the operating license stage to further consider the managerial ability of y

The original Licensing Board decision was issued in January,1978, LBP-78-4, 7 NRC 92.

It was affirmed by the Appeal Board.

ALAB-490, 8NRC234(1978).

Because of concerns raised by the Licensing Board with the management capability of the Applicant after the Appeal Board decision, the Commission remanded the proceeding to the Licensing Board to consider that matter. CLI-78-18 (1978).

3 the Applicant to operate the facilities.

LBP-79-19,10 NRC 37, 98 (1979).

Ruling on an appeal by the Staff, the Appeal Board vacated this condition.

It recognized that the Licensing Board considering construction pemit applications did not have the authority to order hearings on as yet unsought operating licenses. However, the Appeal Board, in what the Staff views as error, prescribed specific procedures for the Staff's review of the operating license applications when filed, and provided for the giving of notice of an opportunity for hearing on such applications in a manner and at a time at variance with that generally described in Commission regulations.

Spe ci fi-cally, the Appeal Board directed the Staff to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in connection with any application which may be filed for operating licenses for the Shearon Harris facility unless_ and until:

. ~ --.- g,.=.g.p i

....u--

n-(1) The staff has conduc'ted, on the basis.cf the content of the operating license application and supporting documentation (together with any other pertinent infomation then at its disposal), a pre-liminary evaluation of the applicant's capability to manage the operation of the facility in conformity with all regulatory require-ments which have or may be imposed in the interest of the protection of the public health and safety; and (2) The findings and conclusions reached upon that evaluation have been (a) made publicly available in written form, and (b) brought specifically to the attention of the Commission with an accompanying reference to both the Licensing Board's supplemental initial decision and our decision today.

It is further directed that, pursuant to 10 CFR 2.105(b)(2), the notice of opportunity for hearing (if one is issued) set forth the manner in which a copy of that analysis may be obtained or examined.

i l i

THE ACTION OF THE APPEAL BOARD WAS ERR 0NEOUS i

A.

The Appeal Board misapprehended the extent of its jurisdiction The Appeal Board ruled, as the Staff had asked it to, that the construction pemit Licensing Board had no authority to initiate an adjudicatory proceed-ing at the operating licensing stage. This necessarily followed from the Cornission's decision in Florida Power and Light Company (Turkey Point Nuclear Generating Units 3 and 4), 4 AEC 9,15 (1967) and the prior decision of the Appeal Board itself in Houston Lighting and Power Co.

(South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (1977).

The Appeal Board then proceeded, however, to prescribe both the nature of the Staff review of an operating license application in this proceeding and the content and timing of the notice of opportunity. for. hearing, thus usurping Commission's -

resened powers wer pre-adjudicat~ory reviews]fJ1 cense app _lte.ations.fqr,q:~

in licenses and over the initiation of adjudicatory proceedings.

f The powers of the Appeal Board, while broader than those of the Licensing Board, are limited to those conferred upon it by the Connission, by regula-tion, general delegation or specific order.

It is readily apparent that an Appeal Board's authority extent only to the proceeding before it and not to some future proceeding.3] 10 CFR 2.785 prwides that the Appeal Board is to "exercize the authority and perfom the review functions which would otherwise have been exercised by the Commission...

in (1) proceedings on applications 9

Jurisdiction wer a proceeding cannot attach until the proceeding

_3/

commences, which, in the case of an operating license proceeding, occurs when the notice of proposed action pursuant to 10 CFR 2.105 is issued.

10 CFR 2.717.

-5 for licenses under Part 50 of this chapter...." (Emphasis added.) Identical language in NRC Manual issuance 0107 (December 19, 1975) is followed by a specific limitation: " Appeal Boards exercise their authority and perform their functions subject to the provisions and limitations of 10 CFR Part 2, as referenced in 10 CFR 2.785(c)."

Nothing in Part 2, of which we are aware, can reasonably be construed to extend the authority of the Appeal Board beyond the scope of the proceeding before it, i.e., in this case, the construction permit proceeding.#/ The Appeal Board, like the Licensing Board, specifically recognized that the record demonstrated that the Appli-cant possesses the requisite " management capability and technical qualifica-tions to design and construct" the Shearon Harris facility, and accordingly let the construction pemit remain in effect.

( ALAS-577, slip op. at 33, 35-36; LBP-78-19, supra,10 NRC at 99).

The relief ordered was simply not directly related to the construction permit proceeding; indeed, the Licensing Board's conditioning of the construction permit was voided for that very reason.

In Offshore Power Systems (Floating Nuclear Plant), ALAB-489, 8 NRC 194, 201-208 (1978), the lack of an adjudicatory board's authority to direct the work of other components of the Commission, except as it affected the-adjudi-cation directly before the board, was emphasized.

See Northeast Nuclear 4j The Appeal Board found "no occasion to dwell at length on [its] authority to order this relief in the exercise of the Comission's review functions delegated to [it] in 10 CFR 2.785(a)."

It specifically invited the Staff "to seek the intercession of the Comission" if the Staff disagreed as to the scope of the Board's authority.

ALAB-577, slip op. at 33, n. 33.

)

. Enercy Co. (Montague Nuclear Power Station, Units 1 & 2), LBP-75-19,1 NRC 436, 437 (1975).

In Arkansas Power & Light Co. (Arkansas Nuclear One, Unit 2, ALAB-94, 6 AEC 25, 30-31,1973), it was held that an adjudicatory board could not issue a recomendation, let alone a direction, the Staff with respect to a license application not directly under review in the adjudication before the board. The Appeal Board statec (6 AEC at 31):

In short, we do not look upon the recommendation as involving an attempt to offer a premature judgment of issues on the basis of a still incomplete record.

At the same time, although not totally unsympathetic to the Board's underlying motivation in doing so, we find ourselves unable to endorse the practice of including in an initial decision the consideration of matters which are patently beyond the ambit of the jurisdiction of the tribunal issuing the decision.

In this particular instance, to be sure, it is diffi-cult to foresee any ham flowing from the Board's action in stepping outside the bounds of its assigned area of inquiry--i.e.,

whether and on what conditions a construction pemit should issue for Unit 2.

But-such may not always -be the case. Whenever an adjudicatory _ body seeks to supply _ answers to questions which.are

,, T, #,

not posed by the litigation before -it, andlo whicYt!h's"rdcorrfW" e -

the proceeding is not addressed, there is at minimum an enlarged potential for an erroneous conclusion.

While the Commission could require the Staff to take such action, it was See also, beyond the power of an adjudicatory board to recommend it.

Florida Power Corp. (Crystal River Unit 3 Nuclear Generating Plant), 4 AEC 318, 322 (Comission,1970); Unit No. 2), ALAB-240, 8 AEC 829, 839 (1974).

Although adjudicatory boards may put substantive conditions in a license or i

a pemit, they cannot assume the Commission's function of directing other i

components of the Commission in the performance of their complementary safety review functions af ter termination of the proceeding before them or l

7 i

assume the Commission's function of prwiding for review of applications not

)

under the board's purview.

Duquesne Licht Co. (Beaver Valley Power Station, i

Unit No. 2), ALAB-240, 8 AEC 829, 839 (1974); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB[536, 4 NRC 525, 536 (1976).

Here the Appeal Board recognized that the Licensing Board had no authority to require an operating license hearing after it had authorized a construc-tion permit. However, the Appeal Board itself erred in mandating procedures J

to be followed by the Staff, af ter issuance of the construction pennit, in the review of another application over which it now has no jurisdiction.

While the manner chosen by each to accomplish the objective is different, the actions of both the Licensing and Appeal Bords have the effect of usurping the powers of the Coanission to control Staff action outside the adjudicatory context.

2 u i s 9.- -

i y.

w

.=d>: '7 e

im 4p.

- " 75 c i- -

1:

i g-

N ^

3 B.

An Important Policy Issue is Raised by the Decision of'the Appeal' Board As indicated above, the Staff generally agrees with the substantive of the approach the course commanded by the Appeal Board in this case.b That may.-

I

_5]

We do have some concern, however, that the Appeal Board's order requiring

~

staff " findings and conclusions" on the management capability of the Applicant before the public is infomed of the docketing of the applica-tion is inconsistent with established Corxnission policy of encouraging an opportunity for the public to observe and participate in the licensing process at its early stages.

See, e.g., " Recommendation for Improvin22,197 Nuclear Power Plant Licensing," 43 Fed.. Reg. 29082 (October See also,10 CFR 2.105(a), calling for issuance of a notice of.op)or-tunity for hearing "as soon as practicable after the application las been docketed." The additional pre-docketing activity mandated by the Appeal Board will eventually delay both docketing and the issuance of a notice of opportunity for hearing.

.w.

e

.g

%.-.yy y

a.

y

_w..

w

8 not always be the case, however.

If this precedent for Appeal Board assump-tion of supervisory authority over Staff review practices during the period between construction pennit issuance and docketing of the operating license application is pemitted to stand, it will surely be used again.

It was for just that reason that the Appeal Board entertained the Staff's exceptions to the Licensing Board decision in this case:

[T]he jurisdictional question which the staff would have us decide cannot be dismissed as of little or no precedential importance. To the contrary, there is a reasonable probability that, if pemitted to stand, the remedy chosen by this Licensing Board will be invoked by future construction pennit boards entertaining similar doubts regarding the ability of an applicant to meet all regulatory require-ments associated with later reactor operation. ALAB-577, slip op, at 12.

The Staff recognizes the importance of the concerns which prompted the Appeal Board to act as it:did.herewAs a matter-of sqund ' policy, the -Appeal-"' "

3._ ::

L - * * ~~ ;: ;;P;;_

m Board should not be withoutMffecthe redours'e' when2it 7iarbori-su*ch ' concerns.~~ ~'7E l

No such void exists, however; the Appeal Board, when confronted with concerns beyond its jurisdiction, can always bring the matter to the attention of the Comission.

In Florida Power & Light Co. (St.

Lucie Nuclear Power Plant, Unit No. 2), ALAB-553,10 NRC 12,14 (1979), the Board notified the Ccamis-sion of delay of the Staff in the preparati'on of testimony, observing that that the Commission could to allocate Staff resources if it believed that Staff priorities were not prudent.

See Offshore Power Systems, supra at

p. 207.

In this very proceeding, the Commission acted on an adjudicatory board's belief that further hearings were needed and provided for them.

See

-g-CLI-78-1, 8 NRC 293 (1978).5/ Such a referral by the Appeal Board would be fully consistent with the objective of greater Commission involvement in the licensing process.

See, e.g.,10 CFR Part 2, Appendix B, 44 Fed. Reg. 65049 (November 9,1979); Rogovin, Three Mile Island, Report to the Commissioners and the Public,1980, Vol. I pp.140-41; Kemeny, Report of the President's Commission on the Accident at Three Mile Island,1979, p. 51; NUREG-0648, Study of the Nuclear Regulatory Commission's Appellate System, pp. 51-52.

Conversely, by asserting unprecedented supervisory authority over the Staff, the Appeal Board has succeeded only in further removing the Commission from the licensirs process.

CONCLUSION The Commission shoul'd revi'ew Al.AB-577, as the : Appeal Board ha's usurped

~

7 powers that the Commission has reserved to itself to supervise other compo-nents of the Commission to see that the public health and safety is protected and to act on matters not under adjudication.

In so doing, it ignored the The Commission can, of course, set a h' earing on the operating license 6/

application to consider the management capability of the Applicant or any other issue whether or not any person intervenes.

10 CFR 2.104(a) and 2.105(a). The Commission sua sponte set a hearing on a provisional operating license application prior to any intervention in Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), Docket No. 50w263, unreported " Notice of Hearing on Application for a Provis-ional Operating License" dated March 9,1970.

4 established and fully effective alternative of referring to the Commission, for such action as the Commission might deem appropriate, the matter which, though outside its jurisdiction, was of legitimate and commendable concern.

Respectfully submitted,

/

Edwin J.

eis Assis t Chief Hearing Counsel Dated at Bethesda, Maryland this 13th day of February,1980 re m.'

- ct n h. di, ;.,.-

... g....;. u,..,,, y. ;, 4,,,, ;...

e s

4 i

I

UNfTED STATES OF AMERICA Ntl CLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

)

CAROLINA POWER AND LIGHT COMPANY

)

Docket Nos. 50-400

)

50-401 (Shearon Harris Nuclear Power

)

50-.402 1

Plant, Units 1, 2, 3 and 4)

)

50-403 CERTIFICATE OF SERVICE I hereby certify that copies of " 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, through deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of February, 1980:

Alan 5. Rosenthal, Esq., Chairman

Hr. Glenn O. Bright Atomic Safety and Licensing

/,tomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555

~

Dr. John H. Buck Dr. J. V. Leeds. Jr.:c, ~

~

-~

Atomic Safety and Licensing 10B07 Atwell-Drive.

. 2 _

Appeal Board Houston, Texas 77096 -

U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Richard E. Jones Esq.

Associate General Counsel

Mic ha el C. Fa r ra r. E s q.

Carolina Power & Light Company Atomic Safety and Licensing 336 Fayetteville Street Appeal Board Raleigh, North Carolina 27602 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Thomas Erwin, Esq.

.115 West Morgan Street

Ivan W. Smith, Esq.

Raleigh, North Carolina 27602 Atomic Safety and Licensing Board Panel Veke County Public Library U.S. Nuclear Regulatory Commission 104 Fayetteville Street Washington, D. C. 20555 Raleigh, North Carolina 27601 e

4.

George F. Trowbridge, Esq.

Atomic Safety and Licensing Shaw, Pittman, Potts & Trowbridge Board Panel 1800 M Street, N.W.

U.S. Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 M. David Gordon

Docketing and Service Section Associate Attorney General Office of the Secretary State of North Carolina U.S. Nuclear Regulatory Commission P.O. Box 629 Washington, D. C. 20555 Raleigh, North Carolina 27602

Samuel J. Chilk

Atomit Safety and Licensing Secretary of the Comission Appeil Board U.S. Nuclear Regulatory Comission

' U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, D. C. 20555 Edwin J. Re Assistant ief Hearing Counsel e

e

y p

s

a,

a..:

a

.2.s.=.x w--

.a a s m.

- a c

a, u-an.

2.w+,

o m

5 e

4

_'q f *.. 7

.e Te /

W 4

S 7

9 4

6 8

ATTACHMENT 3 4

c s.epw w*

em

, < w. d..m.e M.r a6. iv... e..)

e. 4.,v4

.y my a ni

.*A = 4 a

6 i

4 i

s

' It t

=

/

i I

e e

r 4

. -. -,.-~ v

,e..

rd&

y

7g..

e N

UNITED STATES OF AMERICA 3

NUCLEAR REGULATORY COMMISSION c

coCKETED

//

USNRC L

ATOMIC SAFETY AND LICENSING APPEAL BOARD 20 Gb b~

offke of Be SW

/

Alan S. Rosenthal, Chairman

\\.

Docketkt & St*'

Dr. John H. Buck

\\

B m ch 6

Michael C. Farrar FEB 21 WBO s

m

)

In the Matt

-)

)

CAROLINA POWER AND LIGHT COMPANY

)

Docket Nos. 50-400

)

50-401 50-402 (Shearon Harris Nuclear Power Plant,)

Units 1, 2,

3, and 4)

)

50-403

)

Messrs. George F. Trowbridge,and John H.

O'Neill, Jr., Washington, D.

C.,

for the applicant, Carolina Power and Light Company.

' MEMORANDUM E D ORDER-

~~'"

t-w va: :u..

7 c: := :.:-

February 20, 1980

( ALAB-5 81 )

In ALAB-577, 11 NRC (January 29, 19 80), ruling upon the appeal of the NRC staf f, we struck down a condition which had been imposed by the Licensing Board upon the construction In its stead, we permits for the Shearon Harris f acility.1/

4 1 /

LBP-79-19, 10 NRC 37, 9 8 (197 9).

....l i

i '

instructed the staff to take certain action.

The applicant, which was not a party to the appeal',2_/ now moves us to amend our instructions.

We deny the motion.

i In order to put the applicant's. motion in proper per-A.

spective, we start with a summary of the action taken by us in The Licensing Board condition there in issue would ALAB-577.

have required the staff, upon the filing of an application for operating licenses for the facility, to trigger an evidentiary' hearing for the purpose of exploring further the applicant's See 11 NRC at capability to manage plant operation.

(slip opinion, p. 8).

Agreeing with the staff, we deterdined Id. at that the Board below had exceeded its jurisdiction.

(slip opinion, p. 23).

~ -

More particularly, upon analysis of the licensing scheme established by the Atomic Energy Act and implemented in the Commission's Rules of Practice, we concluded that construction permit licensing boards have not been clothed with explicit or implicit authority to order a hearing at the operating license i

Rather, an operating license hearing can be initiated stage.

in only two ways -- neither of which involves the construction 1/

See p.

6, infra.

W e

\\

1.

permit board.

First, the Commission itself may make a specific

' finding, pursuant to Section 2.104 (a) of the Rules of Practice, 10 CFR 2.104 (a), that a hearing "is required in the public in-terest".

(In that regard, we found the contemplation of Sec-J tion 2.104 (a) to be that such a finding will be made only after the operating license application has been filed and will be based upon the content of that application together with any other current available information.)

Second, any interested person may seek a hearing by filing an intervention petition in response to the mandatory notice of opportunity for_ hearing which is published af ter the operating license applicatio,n has been docketed; if the pe'tition is granted, a licensing board will be convened to hear those matters which the petitioner has

.......... h "Thc ( 611picpinion. '.ppv113-2 3)'. r d Ofr 11 NRCla

,.s 3.

put into controversy.

.-*2 Although, for these reasons, we were constrained to remove the condition from the construction permits, we could not allow s

the matter to rest at that.

The concerns that had led the Licensing Board to impose the condition remained undisturbed, notwithstanding that its chosen remedy had been held invalid.

On the basis of the evidentiary record before it, that Board had found -- and justifiably so -- that the management of the applicant's now-operating plants over a period of several years 4

e m.

4 had left much to be desired.

To be sure, the applicant had

. insisted that it had taken effective action to cure the de-ficiencies and the staff had expressed the belief that there 1

had been considerable improvement in the applicant's opera-tions.

Nonetheless, the Board was unprepared -- also with good reason.-- to say that all doubt had been removed regard-ing the, applicant's capability to manage the She' aron Harris facility properly once it were brought on line.

Confronted with these circumstances, we set about the task of fashioning an alternate remedy.

We desired that remedy first to insure that the spotlight would be focused on the management capability question when the facility came under codsider'alibn'ior' anl operating license.

More importantly, the remedy-had to give ef fect.'to our rul~ing ~

that it is for the Commission itself -- and not an adjudi-catory board -- to decide whether, in "the public interest",

a hearing should be held on that question even if one were not requested by an interested person.

As it turned out, our task proved to be a simple one.

We devised a substitute for the Licensing Board's condition,

which, at one and the same time, (1) not merely acknowledged, but facilitated the exercise of, the Commission's singular

, authority to order an operating license hearing in the public e

, __~, -

7

interest; and (2) imposed no new substantive obligation upon the staff (or indeed anyone else).

Specifically, we directed the staff to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in con-nection with any application which may be filed for operating licenses for the Shearon Harris facility unless and until:

(1)

The staff has conducted, on the basis of the content of the operating license application and supporting documentation (together with any other pertinent informa-tion then at its disposal), a preliminary evaluation of the applicant's capability to manage the operation of the facility in con-formity with all regulatory requirements which have or may be imposed in the interest of the protection of the public health and safety; and cg pt gay,, 7 -x. r.. e w. v. e u__

...c.--

(2)

The fi~ndings hhd bonclusionsiireached -?

upon' that evalua'tian have b~e'e'n'4a)?made pub. O USE 5

r licly available in written form; and (b) brought specifically to the attention of the Commission with an accompanying reference to both the Licensing Board's supplemental ini-It is tial decision and our decision today.

further directed that, pursuant to 10 CFR 2.10 5 (b) (2), the notice of opportunity for hearing (if one is issued) set forth the man-ner in which a copy of thet analysis may be obtained or examined.

11 NRC at (slip opinion', pp. 35-36).

9 E

4

6-We need not rehearse in detail here the reasons why this

' direction meets our several objectives; those reasons are amply developed in ALAB-577.

See 11 NRC'at (slip opinion, pp.

it is enough to stress anew that, 26-33).

For present purposes, if the staff conducts its preliminary evaluation of the appli-cant's managerial capability at the verp inception of the operating license review process (rather than much later as would otherwise be the case), the Commission will be able to resort to the product of that evaluation in deciding whether to order a hearing on its own initiative.

And that the Commission scarcely requires may find the staff's analysis to be helpful ~

it is difficult to see how the Commission elaboration.

Indeed, might reach an informed ;c;onclusion; respect.ing;the.public..in-

.2..-

c...

m. #. _:. -,. :.1 a, p : s e..: e,: :

22, terest necessity for a hearing on the management. capability.

~

issue without having the benefit.of the staff's exper't judg-.

ment.

We are told by the applicant that, notwithstanding B.

its agreement "in principle" with the staff's challenge to the Licensing Board's condition, it elected not to contest the condition itself because it anticipated that a hearing at the Motion,-

operating license stage would be held in any event.

although not questioning our authority to p.

2, fn. 4.

But, issue the substitute directive, the applicant nonetheless finds

it to be troublesome.

Specifically, it objects to the issuance

'of the notice of opportunity for hearing on the operating license application being deferred until after the staff's preliminary evaluation on the management capability matter has been completed.

Because, in its view, "this requirement may unnecessarily delay

'other unrelated activities necessary to' obtaining" an operating license, the applicant proposes that we modify o'ur instructions to the staff such that the notice of opportunity for hear-ing would be published as soon as practicable after the OL application is docketed as re-quired by 82.105 (a) (4).

However, to accom-plish the Appeal Board's objective, the notice.

of opportunity for hearing would state addi-tionally (1) that the Staff had been instructed to perform an evaluation of Applicant's manage-ment capability; (2) that a notice will be published in the :FederaleRegister_upon comple- : u..: ay.gy. _t ;

tion of the Staf f's.evaluhtion;-(3)'that the notice will set forth the manner in which a copy of the Staff's evaluation may be obtained or examined; (4) that the public will then have an additional thirty days in which to petition to intervene and request a hearing in the Harris OL proceeding on the sole issue of Applicant's management capability and techni-cal qualifications; and (5) that any peti-tiener already admitted as a party to the Harris OL p'roceeding, and who has not already established a contention on management capa-bility, will then' have thirty days in which to petition to expand his contentions to include a contention on Applicant's manage-

~

ment capability or technical qualifications.

Motion, pp. 3-4 (footnote omitted).

O

.. As the applicant sees it, this modification "will minimize the risk of delay in obtaining an", operating license without interf ering with the objectives we' sought to achieve in ALAB-577.

In this connection, it emphasizes that the proviso would still enable the Commission and interested members of the public to abide the event of the publication of the staff's findings and conclusions before deciding whether to order or' petition for a 3/

hearing on the management capability issue.

Motion, p.

6.--

Our initial difficulty with the proposed modification 1.

relates to the premise underlying the assertion that it is needed.

It may well be, as the applicant insists, that there are good reasons why any adjudicatory proceeding on its operat-ing license applid2ti~o~n"Ior the Shearon Harris facility.should EC

~ 4 2 --:b e~ -

~

i

, _ : _. c t.- El A :.t i be concluded before June 1983 -- when Unit f is now scheduled for initial core fuel loading.

Motion, pp. 4-5.

What is less is that our direction to the staff might inter-clear, however, f ere with the achievement of that goal.

In ALAB-577, we noted the desirability of having the 3/

fruits of the staf f's early preliminary evaluation

~~

available not merely to the Commission but, as well, to the public for its use'in determining whether to seek a hearing (should the Commission not order one).

4 See 11 NRC at (slip opinion, pp. 29, 32).

e e

9-According to the applicant, it recently informed the staff

'that it intends to file the operating license application, in-cluding the Final Safety Analysis Report, in June of this year. 4_/

If it does so, the staff justifiably could be expected, in the exercise of appropriate diligence, to comply with our present instructions in time to enable its 'issu$nce of the notice of opportunity for hearing by early Fall at the lat'est.,

In this connection, as we expressly stated in ALAB-577, what is being required of the staff prior to issuance of that t

notice is but a preliminary evaluation based upon (1) the con-tent of the operating license application and supporting documentation; and..(2L.nny..other. pertinent information then 1

c_.1ur.:

r.a r.

4. n m

..- 2 s -

s, m.,. :._...... m <<, : __.,

at its disposal.__ See p. 5,; supra.

If thec.applicantaproperly,--...

i..

-o m..

c.

..u.._

..is i.1 m.

discharges its own responsibilities in the matter,5 /

the 4/

This representation is confirmed in the January 16, 1980 memorandum of NRC staff member Olan'D. Parr,

~-

summarizing the discussion at a meeting between the staf f and the applicant held on January 10, 1980 on the subject of the tendering of the application.

A, copy of that memorandum was appended to the appli-cant's motion.

5/

If it does not, it will have little cause for complaint about potential delay.

~-

~

O i

l

.2-,

a

,s._

.a A

application and supporting documentation should provide the staff with all the information needed to make rapidly a tentative assessment of the sufficiency of what the appli-cant has done (and plans to do) to insure'the requisite managerial and administrative controis to assure safe Shearon Harris operation.

See 11 NRC at (slip opinion,

p. 31). --6/

Moreover, as also alluded to in ALAB-577, the staff will have immediately at hand the reports of the resident NRC inspectors assigned to the applicant's Brunswick facility.

Ibid.

These reports undoubtedly will allow an, equally expeditious appraisal of the extent to which the applicant has overcome the management problems at that

.. ^u f acility which:jave ri's4 t6 t!1isliW6nshg* Beard'.Ffanf ~c'u'rf "'2- - -

=

y L;

9

.=

concerns.

In short, they will give the staff an insight into whether the applicant's management expectations for Shearon Harris are matched by its recent performance at Brunswick.

Even were there no requirement of an early preliminary _

6/

staff evaluation, the applicant nonetheless would be

~-

well-advised to take considerable pains to establish that, the prior. operating history at its other plants notwithstanding, the Shearon Harris facility will be satisfactorily managed.

l

11 -

2.

The foregoing considerations to one side,- the applicant's proposed modification suffers from at least one serious infirmity -- an infirmity which, ironically, might bring about the very delay which the applicant wishes to avoid.

If required to evaluate the applicant's management capability as a condition precedent to its issuance of the notice of opportunity for hearing, the staff will have a s'trong incen-tive to embark upon that task expeditiously.

No equivalent incentive would exist, however, were the staff now to be given the green light to issue the notice promptly upon the docketing of the operating license application.

True enough, the staff might nonetheless turn to the management capability matter with alacrity.

But, then again, it might choose instead to a'ssign it a rsla't1vely low priority.

If the latter proved to

~

be the case, the consequence could be that the opportunity provided by the applicant's proposal for the filing of new intervention petitions or expanded contentions (addressed to the management capability issue) would not arise until an adjudicatory proceeding convened to hear other issues was well underway.

The mere possibility of a lengthy deferral of staff - -

and thus Commission and public -- consideration of the manage-ment capability issue is cause enough not to adopt the appli-

' cant's proposal.

As earlier noted (p.

4, supra), we think 1

e

~

12 -

given the applicant's prior operating history, it is'

that, essential that particular attention be accorded that issue in connection with the licensing of Sh'earon Harris operation.

This is best accomplished by having it singled out for early staf f examination -- followed by a prompt report to the Commission and the public alike.

If the'se measures are undertaken prior to -- rather than conceivably ldng after --

any adjudicatory proceeding is initiated, the danger that the issue might become sidetracked along the way is substantially diminished.

The applicant's motion for modification of ALAB-577 is n.

~...

-4cc 4.,

. :,- 1 ce..: r.; :v-

- ; ;r. ; ::

denied.

It is so ORDERED.

FOR THE APPEAL BOARD A

JeaqBishop C.

Secreta.y to the Appeal Board 9

l 9

~

-l

.Y.)-c> -

I 1

t ATTACHMENT 4 v-1 1

e e

4 e+s**

== = w *e 6 8 *

'p '.ew..w' wk w $

T1 4 4 e,

,e on =p, < de M em o e eau e ee* 44 e.e

,4,,,+

e e ensur ee ein m,e e w 9 e am

.4 's p,. - - e.

~m-a-.e-rea g.* <1. *,

s t

e 7

I O

9 4

e f

f 4

4 v

m, c

e.

y i:.iw March 11,1980

~

/,

r UNITED STATES OF AMERICA I[p/

J o

NUCLEAR REGULATORY COMMISSION g

16-

/

r-

4A In the Matter of

)

CAROLINA POWER & LIGHT COMPANY

)

Docket Nos. 50-400 V

)

50-401 (Shearon Harris Nuclear Power

)

50-402 Plant, Units 1, 2, 3 and 4)

)

50-403 APLICANT 'S PETITION FOR REVIEW OF ALAB-581 Applicant hereby petitions the Commission, pursuant to 10 C.F.R. 5 2.786, for review of the Atomic Safety and Licensing Appeal Board's

(" Appeal Board") decision of February 20, 1980

( ALAB-5 81).1 Commission review is appropriate here because the 1..

= -;t r.

- 9 c.' -. L - Me" * ' G=4 C :

Appeal Board 's order, involves _anlimportant., procedural. issue and-.

raises important question's of public policy.ymrocLet-a-c?rertum.

-- =.... = z a a 4:.:, w r r u

=

SUMMARY

OF THE DECISION OF WHICH REVIEW IS SOUGHT In ALAB-577 the Appeal Board affirmed the Supplemental 3

Initial Decis' ion of the Atomic Safety and Licensing Board i

1 In ALAB-581 the Appeal Board denied " Applicant's Motion i

for Modification of the Appeal Board's Order in ALAB-577" dated February 11, 1980 and attached hereto as Exhibit A (hereinaf ter " Motion for Modification").

2 If this precedent for Appeal Board assumption of super-visory authority over the Commission's procedures established for processing an application for a license is permitted to' stand, it will likely be used again.

The Commission's regu-lations are not-to be treated as mere guidelines.

Appli-cants and the public expect the Commission to follow its own regulations so that there is some certainty to the process.

1 700 70 10 i n Nec 37 -(107 0 ),

(" Board") which found that Applicant possesses the requisite manag ement capability and technical qualifications to design and construct the Shearon Barris facility.

The Appeal Board modified the Supplemental Initial Decision by deleting a condition imposed by the Board on the Applicant's construction permits which would have required that a hearing be held on Applicant's management capability and technical qualifications at the operating license ("0L") stage.4 In deleting the condition,the Appeal Board instead issued its own directions to the Staff:5

[T]he Staf f is hereby directed to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in connection with any application which may be filed for operating licenses for the Shearon Harris facility unless and until:

The Staff has conducted, on the basis of (1)

~~

'the ' content o~f' the operating license- -

application and supporting documentation

( together 'with#a'n~y other-per-tinent'informa-o m

07 '

tion then at its disposal), a preliminary evaluation of the applicant's capability to manage the operation of the facility in conformity with all regulatory requirements which have or may be imposed in the interest 1

4 The Staff had challenged the Board's authority to impose j

such a condition to the construction permits.

The Staff has now petitioned for Commission review of ALAB-577 arguing that the Appeal Board lacked jurisdiction to issue directions to the Staf f with respect to an application which has yet to be filed with the Commission.

Nuclear Regulatory Commission Staff, " Petition for Review" dated February 13, 1980 (herein-af ter "Staf f Petition").

By Order dated February. 21, 1980 the Commission extended the time within which the commission upon or grant the petition to review ALAB-577 to ex-may act pire co-extensively with the review times for ALAB-581.

5 ALAB-577 at 35-36 (citations to slip opinion)..

of the protection of the public health and safety; and (2)

The findings and conclusions reached upon that evaluation have been (a) made publicly available in written form; and (b) brought specifically to the attention of the Commission with an accompanying reference to both the Licensing Board's supplemental initial decision and our decision today.

It is further directed that, pursuant to 10 CFR 2.105(b)(2), the notice of opportunity for hearing (if one is issued) set forth the manner in which a copy of that analysis may be obtained or examined.

Applicant views the Appeal Board's approach as over-reaching and unnecessary to accomplish its objective of having the Staff perform an evaluation of Applicant's management capability early in the OL application review process and publish the results for the benefit of the Commission and potential intervenors.

The Appeal Board 's directions to ther Staf fi are:.luconsistenty.vith;;the _ Commission's._n

.,,,..,c.;

y reg ulations which provide: thatmthe3moti6elbf 6pportsnitysfotof s, or;-

hearing "shall be issued as soon as practicable after the (OL) application has been docketed. 6 10 C.F.R. S 2.105(a)(4).

By virtue of che Appeal Board's order, commencement of an OL l

6 The Staff apparently intarpreted the Appeal Bostd's order in ALAB-577 as directing a Staf f evaluation prior i

tc! docketing Applicant's OL application.

Staff Petition

]

at 7, fn. 5.

Tha t the Appeal Board has in mind a post-docketing evaluation can be inferred from its discussion in ALAB-581 (see especially at 11).

The Staff's interpreta-i i

tion of the Appeal Board 's directions would be contrary to the intent of 10 C.F.R. S 2.101.

Certainly the Appeal Board's Order does not direct the Staff to defer a deter-mination of acceptability and completeness of the OL ap-plication and docketing of the application pending comple-tion of the evaluation. -

i

}

proceeding would be held hostage to the issuance of a Staff report on Applicant's management capability.

Applicant voiced its concern about any delays in the OL process and explained why delays could have severe consequences to Applicant.

Motion for Modification at 4-5.

Thus, Applicant proposed a modifica-tion to the Appeal Board's order which would ensure that all OL i

proceeding activities unrelated to Applicant's management capability would commence in accordance with Commission regulations, and which would also serve the Appeal Board's obj ec tive :

Applicant proposes that the Appeal Board mcdify its instructions to the Staff such that the notice of opportunity for hearing would be published as soon as practicable after the OL application is docketed as required by 5 2.105 (a)( 4 ).

Bowever, to accomplish the Appeal Board 's obj ective, the notice of opportunity for hearing would state additionally -(t)- that-the Staf f had been -

instructed to per fo em~ [as,ev,alu'a tilknj [of i [',

'IC ' '."

~~

7 Applicant's management capa-bitityv-(ti. that a"*.. -~

"c

' '~~ '~~~~'

no tice will be~ p'ubl~i~sh'ed"in' the~ Federal' Register upon completion of the Staff's.

evaluation; (3) that the notice will set forth the manner in which a copy of the Staf f's evaluation may be obtained or ex amined ; (4) tha t the public will then have an additional thirty days in which to petition to intervene and request a hearing in the Barris OL proceeding on the sole issue of Applicant's management capability and technical qualifications; and (5) that any petitioner already admitted as a party to the Barris OL proceeding, and who has not already established a contention on management capability, will then have thirty days in which to petition to expand his contentions to include a contention on Applicant's management capability or technical qualifica-tions.

(Iji. at 3-4 (footnote omitted)]..

9

- ~. -

=

In ALAB-581 the Appeal Board denied Applicant's Motion for Modification.

The Appeal Board did not address the question of its authority to deviate from Commission regulations which require the issuance of a notice of opportunity for hearing "as j

soon as practicable after the application has been docketed."

The Appeal Board did not address why, in its view, the process of establishing the standing of petitioners, identifying a

parties, defining the contentions and commencing any discovery should not move forward while the Staff's evaluation of Applicant's management capability was being conducted.

The Appeal Board did not deny that its objective could be served under Applicant's proposed modified procedure.

Instead the Appeal Board asserted that the Staff evaluation which it had in mind would be accomplished "by early Fall at the latest" and that Applicant hfd not_ demonstrated how such a delay "might 7,, : - ocye e p,--. - -.. -. - :.

interf ere with_ tWe~ ac_h'ievemen.t of [it's] goal [of an operating license before June 1983)."

ALAB-581 at 8, 9.

Furthermore, the Appeal Board suggested that Applicant's proposed modifica-tion suf fers from at least one serious infirmity -- that without an " incentive" to complete the evaluation of Applicant's management capability prior to issuance of an opportunity for hearing, the Staff might assign the evaluation a "relatively low priority" which could result in a delay caused by belated contentions while an adjudicatory proceeding to hear other issues was well underway.,

THE ACTION OF THE APPEAL BOARD WAS ERRONEOUS A.

The Appeal Board Exceeded its Jurisdiction Applicant supports the Staff's argument that the Appeal Board exceeded its jurisdiction in issuing instructions to the Staff respecting how the Staff will treat an application for an OL that has yet to be filed.

Applicant adopts the Staff's arg uments at pages 4-7 of the Staff Petition.

B.

The Appeal Board Exceeded its Authority in Direct-7 ing the Staf f to Deviate from Commission Regulations The Appeal Board acknowledged tha t its directions to the Staf f deviate from Commission regulations.

However, it took the position that the regulations simply " chart the cou'rse that the Staf f is generally to pursue in its processing of an operating license application" and thus _.it,,appa r en tly. find s _._ _

+=

S-rc --

"r' r-

-._s..m.r that "some devia' tion ' Iheteif modept _in;)c655..',ff}rosikhatid66rse

?

= 2 ;-

=1

- v -r. ?.- i m.;

.-:--=:*---

n is permissible."

ALAB-577~at 29-30.

7td ' Appbal Boards ' casual attitude toward the regulations does not square with the 7

The Appeal Board asserted that Applicant did not question its authority to issue the " substitute directive."

ALAB-581 at 6.

In fact, Applicant, in arguing for the modification to the Appeal Board's order, noted that the directions to the Staf f deviated from the Commission's regulations.

Motion for Modification at 2.

Applicant's modification would provide "that the notice of opportunity for hearing would be publiahed as soon as practicable af ter the OL application is docketed as required by 5 2.105(a)(4)."

Motion for Modification at 3 ( emphasis added ).

Rather than simply challenge the Appeal Board's authority, Applicant proposed a remedy which would accomplish the Appeal Board's objective and would be less likely to affect adversely Applicant's schedule for obtaining an OL.,

4

..m

Commission's intent in establishing its procedures.

In issuing substantial amendments to its regulations governing the procedures for reviewing facility license applications and conducting proceedings concerning license applications, the Commission acknowledged its responsibility to applicants, the public participating in the licensing process and the general public.

The Commission expressly recognized "the positive necessity for expediting the decisionmaking process and avoiding und ue delays. "

37 Fed. Reg. 15127 (July 28, 1972).

Fur thermore, the Commission explained its requirement that a notice of opportunity for hearing be issued as soon as practicable after the application is docketed as one "to provide potential intervenors a better opportunity for more meaningful participation in the hearing process."8 Id. at theCcddE$s $$h5 est'abl'15hed a' judl~c151 15128.

Fur the rmo r,l 7

e u.e m.: :

,, n :.n r _.

v- - - c m

.w. n w r-_-_

rule that agendlEs must'fo1160 th51r ow5'Fegu15tI66s!'6nc5they ~

~

are issued.

See e.g. Nader v.

NRC, 513 F.2d 1045, 1051 (D.C.

Cir. 1975); service v. Dulles, 354 U.S.

363, 388 (1957);

U.S.

v. Nixon, 418 U.S.

683, 695-97 (1975).

The Appeal Board apparently did not feel so bound.

\\

8 The Staff also noted its concern that the Appeal Board 's order "is inconsistent with the established Commission policy of encouraging an opportunity for the public to observe and ' participate in the licensing process at j

its earliest stages."

Staff Petition at 7, fn.5.

i,

i

.~

~.

s C.

The Appeal Board's Reasons for Denying Applicant's Motion for Modification Were based on Dubious and Unsupportable Assumptions l

The Appeal Board asserts ' that it is not " clear" that its directions to the Staff will delay Applicant's obtaining an operating license by June 1983 and thus it questions the need for Applicant's proposed modification.

Applicant concedes that it is conjecture as to how long the Staff will take to perform e

its evaluation and whether or not the delay in issuance of a notice of opportunity for hearing will delay the issuance of an OL.

The Appeal Board suggests that "in the exercise of appropriate diligence" the Staff could comply with its instructions "in time to enable its J ssuance of the notice of opportunity for hearing by early Fall at the latest."

ALAB-581 at 9.

Of course the Appeal Board offers no assurances.

In i

~

c cht - rno A fact it suggests a ~few pages~ later~"that without "a"* strong to the Sta'f f,Nbhh

,.,,. i nc,~ 's' the # poss55111tf oPd'.lenNE[ '

i incentive" deferral" of the Staff's evaluation.

Ij3. at 11.

We believe that it is reasonable to assume, in light of the considerable demands made on the Staff in the af termath of Ihree Mile Island and due to the back-log of case work already pending, that the Appeal Board's optimistic projection could be just that.I certainly, the Commission is in a batter positicn than the Appeal Board to predict the Staff's work-load and can take official notice of 'he potential for undue delay.

However, 9

Applicant is concerned that the Staf f might be more likely l

to take from six months to a year to issue its report.

I I

Applicant's proposed modification would minimize the impact of any delay in the Staff's completion of the evaluation.

The only reason given for actual rejection of Applicant's proposed modification was the Appeal Board's concern that the Staf f might unreasonably delay completion of its evaluation.

If the Appeal Board views such dilatory performance by the Staff as a real concern, the more appropriate remedy would be to require the Staf f to complete its evaluation within a specified period of time.

It does not follow that notice to the public and initiation of the OL proceeding should be held hostage to the Staf f's evaluation in order to provide an incentive to the Staf f to do its job in a timely manner.

CONCLUSION Applicant petitions the Commission to find that the Appeal 4

Board's directions to t! ' 7taff in ALAB-577, without adoption of Applicant's proposed ac' i f ications which were rejected in ALAB-581, controvert the Commission's regulations.

In the s

alternative, the Commission could find, as urged by the Staff, that the Appeal Board lacks jurisdiction to issue any such directions to the Staff concerning the procedures by which the Staff will treat an application that has not yet been filed.

i If the Commission accepts the Staff's suggestion to issue i

similar directions respecting an evaluation of Applicant's management capability in conj unction with a review of Applicant's application for an OL for the blearon Barris

_9-i

^-

facility, Applicant urges that the Commission adopt the modified procedures suggested in Applicant's Motion for Modification.

Respectfully submitted, SHAW, PITTMN, POTTS & TROWBRIDGE siwA4 m

'Gy(drgV F.'Trowbridge

/

'7ohn H. O'Neill, Jr.

/

Counsel for Applicants i

1800 M Street, N.W.

Suite 900 Washington, D.C.

20036 Telephone: (202) 331-4100 Dated:

March 11, 1980 c Le W })d q E ?

J. I ! O P h*,2 5 b t l",0 L, 3

^ ; ; 7.

I

, ;., 7, ;;'

f,,

M.-

nce s

l i

10 -

1 i

j

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

CAROLINA POWER & LIGHT COMPANY

)

Docket Nos. 50-400

)

50-401 (Shearon Harris Nuclear Power

)

50-402 Plant, Units 1, 2, 3 and 4)

)

50-403 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" APPLICANT'S PETITION FOR REVIEW OF ALAB-581" have been served upon each of the persons listed on the att' ached service list by mail, postage prepaid, or by hand delivery this lith day of March, 1980.

g mi = _.. : --

u -.

,_7c-

-. ~ ~

=: = = = = = = -

..=.

6, Join H. O'Neill, Jr.

/

Dated.

I'erch 11, 1980 4

4 l

=

}

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

CAROLINA POWER & LIGHT COMPANY

)

Docket Nos. 50-400

)

50-401 (Shearon Harris Nuclear Power

)

50-402 Plant, Units 1, 2, 3 and 4)

)

50-403 SERVICE LIST The Honorable John F. Ahearne Michael C. Farrar, Esq.

Atomic Safety and Licensing Chairman U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C.

20555 U.S. Nuclear Regulatory Commissis Washington, D.C.

20555 The Honorable Joseph M. Hendrie Ivan W. Smith, Esquire Commissioner U.S. Nuclear Regulatory Commission Chairman Washington, D.C.

20555 Atomic Safety and Licensing Board The Honorable Victor Gilinsky U.S. Nuclear Regulatory Commissic Commissioner Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Mr. Glenn o. Bright Atomic Safety and Licensing Boar; The honorable Richard T.

Kennedy U.S. Nuclear Regulatory Commissi Commissioner Washington, D.C.

20555 U.S. Nuclear Regulatory Commigsion Washington, D.C.

20555 Dr. J. V. Leeds, Jr.

10807 Atwell The Honorable Peter A. Bradford Houston, Texas 77096 Commissioner U.S. Nuclear Regulatory Commission M. David Gordon, Esquire Washington, D.C.

20555 Associate Attorney General State of North Carolina Alan S. Rosenthal, Esq. Chairman P. O. Box 629 Atomic Safety and Licensing Raleigh, North Carolina 27602 Appeal Board U.S. Nuclear Regulatory Commission Edwin J. Reis, Esquire Washington, D.C.

20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commissi Dr. John H. Buck Atomic Safety and Licensing Washington,-D.C.

20555 Appeal Board U.:. Nuclear Regulatory Commission Washington, D.C.

20555

2-Thomas S.

Erwin, Esquire Mr. Wells Eddleman P. O. Box 928 Route 1 Box 183 115 West Morgan Street Durham, North Carolina 27705 Raleigh, North Carolina 27602 Kudzu Alliance Docketing and Service Section Box 3036 Office of the Secretary Chapel Hill, North Carolina 2752!

U.S. Nuclear Regulatory Cc= mission Washington, D.C.

20555 Samuel J. Chilk.

Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 r a 6-

,..-,-.-;*--~~-- - - - -...

4 4 - 4..

Cv~nr.TiYra time di ihu ~Ci.

,e.i49 x,.

"i=b 17

5. r.

a 6

i i

e 1

1

.s 4.

February 11, 1980 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TBE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

CAROLINA POWER & LIGHT COMPANY

)

Docket Nos. 50-400 (Shearon Harris Nuclear Power

)

50-401

)

50-402 Plant, Units 1, 2, 3 and 4)

)

50-403 APPLICANT'S MOTION FOR MODIFICATION OF THE APPEAL BOARD'S ORDER IN ALAB-577

..w. so m c.:m nom

..,.. y :.: :

n - - 3. 4..-.-,...;,

n 2

e i.= b

~2. ; - a.. =.= c e.a : - 2_ : - a 7

In ALAB-577 the ' Atomic ~ Saf.ety -a'6d"LfeensIng Appeal. Board 2_.21.

2

(" Appeal Board") affirmed the Supplemental Initial Decision of the Atomic Safety and Licensing Board (" Board") which found s

i that Applicant possesses the requisite management capability-and technical qualifications to design and construct the Shearon Harris facility.

The Appeal Board modified the i

i Supplemental Initial Decision by deleting a condition imposed by the Board on the Applicant's construction permits which would have required that a bearing be held on Applicant's Carolina Power & Light Company (Shearon Harris.

loar Power Plant, Units 1, 2, 3'and 4), ALAB-577, 10 haC (January 19,1980)(citations herein are to the slip opinion).

2 LBP-79-19, 10 NRC 37 (1979)'.

=

)

.[*

management capability and technical qualifications at the operating license ("oL") stage.3 The Staff had challenged the Board's authority to impose such a condition to the construc-tion permits.4 In deleting the condition the Appeal Board directed the Staff to deviate from the Commission's regulations

-- at least with respect to the order and timing of certain prescribed actions -- in the Staff's treatment of Applicant's OL application for the Shearon Barris facility.

The Appeal Board's directions to the Staff provide:S

[T]he Staff is hereby directed to insure that no notice of opportunity for hearing under 10 CFR 2.105 is issued in connection with any application which may be filed for operating licenses for the Shearon Barris facility unless and until:

---~=u.

= 1.;--... _ :. :;,,,.11 w.

3 The Board's condition provided:

~

(ix)

At an 'sppropriate time -during ttheWeviewJofcthe: h i.x. cc.r. C-.

application for the operating license of the Shearon Harris Nuclear Power Plant-the Staff shall Lmplement the necessary actions to enable the Secretary to issue a notice of hearing on said application to be published in the Federal Register required under 10 CFR 2.104.

In addition to the other requirements of Section 2.104, the notice of hearing shall state that the presiding officer will consider.(in addition to any other matter which may be in controversy) whether the Applicant has the management capability and is technically qualified to engage in the activities to be authorized by the operating license in accordance with the regulations of 10 CFR Chapter 1.

(10 NRC at 98) 4 Applicant agreed with the Staff in principle and so informed the Appeal Board by letter dated October 9, 1979.

However, for practical reasons -- i.e. Applicant anticipates a hearing at the OL stage in any event

-- Applicant elected not to contest the condition.

5 ALAB-577 at 35-36.

u (1)

The Staff has conducted, on the basis of the content of the operating license applica-tion and supporting documentation (together w -h any other pertinent information then at its disposal), a preliminary evaluation of the applicant's capability to manage the operation of the f acility in conformity with all regulatory requirements which have or may be imposed in the interest of the protection of the public health and safety; and (2)

The findings and conclusions reached upon that evaluation have been (a) made publicly available in written form; and (b) brought specifically to the attention of the Commission with an accompanying reference to both the Licensing Board's supplemental initial decision and our decision today.

It is further directed that, pursuant to 10 CFR 2.105(b)(2), the notice of opportunity for hearing (if one is issued) set forth the manner in which a copy of that analysis may be obtained or examined.

Applicant is concerned that this requirement may un-necessarily delay.;other cunrelated. activities necessary to

.". _ _ v c.= :

=

' obtaining an OL.

Therefore, Applicant hereby petitions the Appeal Board to modify its order to avoid any unnecessary delay in Applicant's OL proceeding for the Shearon Harris f acility as it pertains to issues other than management capability.

Applicant propo,ses that the Appeal Board modify its instructions to the Staf f such that the notice of opportunity for hearing would be published as soon as practice.ble after the OL application is docketed as required by $2.105(a)(4;.6 6

The Commission's regulations provide that the notice of opportunity for hearing "shall be issued as soon as practicable after the [ operating license) application has been docketed."

10 C.F.R. 2.105(a)(4).

Thus an applicant for an OL would (continued next page)

m However, to accomplish the Appeal Board's objective, the notice of opportunity for hearing would state additionally (1) tha t the Staff had been instructed to perform an evaluation of Applicant's management capability, (2) that a notice will be published in the Federal Register upon completion of the Staff's evaluation; (3) that the notice will set forth the manner in which a copy of the Staff's evaluation may be obtained or examined; (4) that the public will then have an additional thirty days in which to petition to intervene and request a hearing in the Harris OL proceeding on the sole issue of Applicant's management capability and technical qualificah tions; and (5) that any petitioner already admitted as a party to the Barris OL proceeding, and who has not already estab-lished a contention;on management scapability,-wi11-then have thirty daysMiri wh'icYYo ~pe~ti~t" ion'Wispdif6Ni? cone ~n'tY6Ns-ti6"

~

include a contention on Applicant's management capability or technical qualifications.

Applicant is already concerned about a lengthy proceeding for ottaining an OL for the Shearon Harris facility.

Harris Unit 1 is scheduled for initial core fuel loading in June, 1983, and Applicant plans to use the spent fuel storage pool at the Harris. facility to provide spent fuel storage for its three (continued) normally expect the notice for opportunity for hearing to be published in the Federal Register within a few days of docket-ing and certainly within a period of weeks.

e, M

W

operating nuclear units, Robinson Unit 2 and Brunswick Units 1 and 2.

Spent fuel storage at those plants will be exhausted in 1983 and storage of excess spent fuel at the Barris facility is necessary to avoid the potential shutdown of presently-operating, essential generating capacity.

Applicant recently held a meeting with the Staff to discuss the schedule for tendering its OL application ' for the Barris facility and to urge upon the Staff the importance of

~

timely review for spent fuel storage.

At that meeting, Applicant reiterated its intention to file its Final Safety Analysis Report in June, 1980.

Since many portions of the Staff review of the FSAR and many aspects of any necessary OL hearing on other issues will be totally independent of the management capability issue, it would seem that there is no need to departt :frettnormal~procedurerasnto-those 'iss.< _.

... = =

~

ues..= =.cf e-7 See NRR Memorandum re Summary of Meeting held on January 10, 1980, to Discuss Tendering of Operating License Application for Shearon Barris, dated January 16, 1980.

(Exhibit A attached hereto).

Thirty-six months lead-time is considered prudent in the present circumstances.

Prior to Three Mile Island, the Staff estimated thirty months for completion of the OL review process, which included time for a limited hearing, if re-quired.

This was prior to the imposition of numerous additional licensing requirements as a result of the post-Three Mile Island evaluations and prior to the severe back-log of casework f acing the Staff.

Furthermore, Applicant anticipates a lengthy, contested OL proceeding.

At the end of this process, it is not now clear when the OL will become effective due to the reevaluations of the "immediate effective-ness" rule.

Thus Applicant is very much concerned about the possibility of any delays.

. i

s Applicant believes that the proposed modification to the Appeal Board's instructions to the Staff will minimize the risk of delay in obtaining an OL by commencing the proceeding at the earliest practicable date.

The process of establishing the standing of petitioners, identifying parties, defining the contentions and beginning any discovery could move forward while the Staff's evaluation of Applicant's management capabil-ity was being conducted.

Bowever, since the public would be able to request, or the' Commission could direct, a hearing on the one remaining issue of management capability within thirty days of the issuance of the Staff's findings and conclusions following its evaluation, the proposed modified procedure would

. serve the Appeal Board's objective of providing the public with additional information on Applicant's management capability in order to make a more informed decision on whether or not to petition for a hearing on that one issue.

Applicant therefore requests that the Appeal Board modify its instructions to the Staff in ALAB-577 as outlined above.

Respectfully submitted, Shaw, Pittman, Potts & Trowbridge s,wd:L orgp/ P. Trowbridge

/

John H. O'Neill, Jr.

Counsel for Applicants 1800'M Street, N.W. Suite 900 Washington, D.C.

20036 Telephone: (202) 331-4100 Dated:

February 11, 1980 i

i l

d.' 4 r

9

.Y k

i

(<*

- g d

js*

f O

9 4

W ATTACIDIENT 5 4

e e A

J

e e e mse ga se e eso sumes e eh au> e a e e upe

,e e

W men aeaus %

ew1 4hM I

4

.f 5

e ae

- g

.e, s

a e

1 4

1 6

4 y.

a 4

1 8

4 e

}

9 l

.u -er

-m+s*m'siewe en-*wes-a---* ee a

+-------ne-e-se-----r--amws-e-r s

e e vet a

w'tw e ra -umam--w w-e

we,w-e,---+-

me w-r h-+

e--r-e e-o e

e-w'ew+w w-m -+- i r

ML20045E800

Contents

Text

Subject:

Purpose:

SUMMARY

SUMMARY

Navigation menu

ML20045E800

Text

Subject:

Purpose:

SUMMARY

SUMMARY

Navigation menu

Search