ML20049H527
| ML20049H527 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 02/26/1982 |
| From: | Gad R BOSTON EDISON CO., ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19250E061 | List: |
| References | |
| EA-81-063, EA-81-63, NUDOCS 8203030265 | |
| Download: ML20049H527 (5) | |
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UNITED STATES OF AMERICA
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before the NUCLEAR REGULATORY COMMISSION
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BOSTON EDISON COMPANY
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Docket No. 50-293
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License No. DPR-35
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EA 81-63 (Pilgrim Nuclear Power Station)
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LICENSEE'S RESPONSE TO PETITION OF THE MASSACHUSETTS ATTOLNEY GENERAL TO INTERVENE IN PROCEEDING FOR MODIFICATION OF PILGRIM STATION OPERATING LICENSE On January 18, 1982, the Commission, acting through the Director, Office of Inspection and Enforcement (Director) issued, in the above-numbered docket, an " Order Modifying License Effec-tive Immediately" (Order).
The Order was issued in conjunction with a Notice of Violation and Proposed Imposition of Civil Penalties of even date (Notice).
The Notice proposed the imposi-tion of civil penalties in the amount of $550,000 upon the Licensee Boston Edison Company (BECO) as a result of various alleged viola-tions of regulations described in detail in the Notice.
The Order, referring, inter alia, to the specific violations described 8203030265 820226 PDR ADOCK 05000293 i l G
PDR l
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in the Notice, Order at 2-5, amended BECO's operating license to requf re BECO, within 30 days *, to submit a plan:
"that will yield an independent appraisal of site and corporate management organiza-tions and functions, recommendations for improvements in management controls and oversight, and a review of previous safety related activities to evaluate compliance with NRC requirements."
Order at 6.
The Order went on to detail the specific requirements of the con-templated plan, Order at 6-9, and concluded by stating that:
"[t]he licensee may request a hearing on this Order"; giving direction as to when a request should be submitted; stating that:
"[i]f a hearing is requested.
the Commission will issue an order designating the time and place of any such hearing"; and stating that in any such hearing the issue would be:
"Whether, on the basis of the matters set forth in Sections II and III of this Order, this Order should be sustained."
Order at 9-10.
On February 17, 1982, the Attorney General of the Commonwealth of Massachusetts (Mass. A.G.) mailed a seven-page document, apparently to the Commission **, entitled " Petition of the Massa-chusetts Attorney General to Intervene in Proceeding for Modifi-cation of Pilgrim Station Operating License" (Petition).
The Petition asserts an absolute right on behalf of the Mass.
A.G.
to intervene in what he terms "the proceeding", Petition at 3-5 l
- The 30-day period to submit the plan has been extended to March 29, 1982, by the Commission acting through the Director.
Order Extending Time to Reply to Order Modifying License Effec-tive Immediately Issued January 21, 19o2 (February lo, 19e2).
- The certificate of service recites service upon BECO and OELD.
It is not clear whether or not the Director was mailed either the original or a copy.
t In addit $on, the Petition lists a number of issues as to which the Mass. A.G. wishes to participate, none of which is the issue stated in the Order.*
For the reasons set forth below BECO says the Petition should be denied.
To begin with, there is no proceeding in which the Mass.
A.G.
can intervene.
BECO did not request a hearing upon the Order and absent such a request, no " proceeding" exists or can be commenced.
In addition, it is obvious that the Mass. A.G. does not oppose the l
amendment but rather seeks either to make the amendment more onerous for BECO, or to assure that the license amendment already in place is complied with.
See Petition at 5-6 (statement of Issues).
- Thus, the issue to be decided may be stated as follows:
"When the Commission issues an immediately effective order modifying an operating license to place additional burdens or restrictions upcn the Licensee, may a third party require the holding of a hearing with a view towards either (a) making the burdens more onerous for the Licensee or (b) moni-toring the Licensee's compliance with the already effective order. "
This is not a case where the Commission is acting upon a Licensee's request for a license modification which would allow theretofore forbidden activities.
Thus, the Commonwealth quite properly does not rely upon the decision in Sholly v.
N.R.C.,
651 F.2d 780 (D.C. Cir. 1980), reh. en 'canc denied, 651 F.2d 792
- Isstes "1" and "3" as set forth in the Petition go to whether additional sanctions should have been imposed, while Issues "2"
and "4" go to whether BECO's response - which is not yet due and has not yet been made - is sufficient.
Petition at 5-6. _
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(D.C. Cir.), cert. grat ed, 101 S. Ct. 3004 (1981).*
Rather this is a situation where a third party is seeking to have NRC impose sm.acions more onerous than it already has upon a Licensee in light of certain events.
In such circumstances the principles set out in Houston Lighting & Power Co. (South Texas Projects, Units 1 and 2), CLI-80-32, 12 NRC 281, 289 (1980), are controlling.
No hearing should be granted (a) because the Mass.
A.G. is not aggrieved by the order in question, but asserts a desire to compel the Director to take stronger action and (b) because the Mass. A.G. seeks to litigate issues other than those deline-ated in the Order.
See also Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980); Wisconsin Electric Power Co. (Point Beach Unit No. 1),
CLI-80 __, CCH Nuclear Reg. Rep. T 30,483 (1980).**
Insofar as the Mass. A.G. is seeking to monitor BECO's compli-ance with the license amendment ordered, his remedy is a petition
- Indeed, the Commission has already taken the position through its Director of the Office of Nuclear Reactor Regulation that Sholly has "no effect upon the Commission's authority to issue l
orders which are immediately effective when the public health, l
safety or interest so requires."
Letter Harold R. Denton to l
T. G.
Dignan, Jr., December 23, 1980 (copy attached hereto as Appendix A).
j It is settled that an order framed in terms of scope as is the Order does not include any contention that the remedy imposed l
1s insufficient.
Public Service Company of Indiana, supra at 440.
It is also settled that the Commission has authority so to limit id. at 440-41, and the Mass. A.G.'s citation to the issues, 302 F.2d 424 (D.C.
BPI v. AEC, Cir. 1974), is not to the con-Finally, for the reasons set forth in Public Service trary, id.
i Company of Indiana, there is no basis for the grant of a discre-tionary hearing in this case.
11 NRC at 441-43 j-h-
under 10 CFR $ 2.206 when, as and if he believes BECO has not complied with the Order and thus is in violation of its license as amended by the Order.
Public Service Co. of Indiana, supra, 11 NRC at 443.*
CONCLUSION The Petition should be denied.
Respectfully submitted, Thomas G.
Dignan, Jr.
R.
K. Gad III Thomas G.
Dignan, Jr.
R.
K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 Attorneys for Boston Edison Company February 26, 1982
- "Any such request, however, would have to be based upon specific facts and could not rest upon general allegations that
. problems still exist
....