ML20050B923
| ML20050B923 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 04/05/1982 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8204070560 | |
| Download: ML20050B923 (12) | |
Text
e 6 04/05/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the flatter of
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CAROLINA POWER AtiD LIGHT COMPANY
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Docket Nos. 50-400
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50-401 (Shearon Harris Nuclear Power
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Plant, Units 1 and 2)
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s NRC STAFF ANSWER TO ENVIRONitENTAL LAW PROJECT'S C/
C t10 TION TO POSTPONE OR SEPARATE PROCEEDINGS
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INTRODUCTION h
On March 16, 1982, the Environmental Law Project ("ELP"), a p(titioner for leave to intervene in this proceeding, filed a " Motion to Postpone or Separate Proceedings or Other Relief."
(" Motion")
In this tiotion, ELP requests that the Atomic Safety and Licensing Boara ("the Board"):
(1) "take notice" of a Petition for Rulenaking (PRM-2-11), 47 Fed. Je. 4310 (January 29,1982),
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filed by another petit 1oner for leave to intervene (Wells Eddleman), which requests that the Commission amend its regulations in 10 C.F.R. Part 2 to require a separate operating license hearing for each power reactor unit at a nuclear plant site; (2) "take notice" of a " list furnished by the NRC to the United States Congress on or about March 13, 1982, which... contained the names of nineteen nuclear power plants under construction which the NRC Staff predicted would be cancelled, which included Shearon Harris Unit No. 2";
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, 5 (3) "take notice" of a December 18, 1982 letter filed by Carolina Power & Light Company (the Applicant) which requested that only Unit 1 be considered for an operating license; (4) (a) " recognizing from the foregning that consideration of an operating license at this time for Shearon Harris Unit No. 2 is premature, separate these two dockets pursuant to 10 C.F.R. 5 2.402 and postpone the proceedings for Unit No. 2 until such time as it appears likely that said pnwer reactor will in fact be put into operation; or in the alternative" (b) "... postpone further proceedings on...
Unit 2 until... the NRC has taken action on the PRM,.. or in the alternative" (c)
... grant such other relief, which may include conducting haarings on unit No. 2 under the condition that such hearings may be reopened on motion by a party or intervenor after a certain period if the plant is not nearing completion
" (Motion, at 1-2).
For the reasons set forth below, while the NRC Staff has no objections to the Board "taking notice" of the various documents cited by ELP, the Staff objects to the remainder of ELP's Motion and urges that it be denied.
II. DISCUSSION _
On January 27, 1982, the Nuclear Regulatory Comission published in the Federal Register (47 Fed. R_eg. 3898) a notice of " Receipt of e
Applications for Facility Operating Licenses for Shearon Harris Nuclear Power Plant, Units 1 and 2; Availability of Applicant's Environmental Report; Consideration of Issuance of Facility Operating Licenses; and Opportunity for Hearing." Pursuant to that notice, ELP filed a timely petition for leave to intervena. Answers to that petition were fil by t.
the Applicants and the Staff on March 3, 1982 and March 9, 1982, respectively. The Atomic Safety and Licensing Board designated to rule
on petiticns for leave to intervene has not yet ruled upon the petitions.
Consequently, ELP has not as yet been admitted as a party to the proceeding.
A.
ELP's Motion Should Be Denied For Lack of Standing Only a party to a proceeding is entitled to file a motion under 10C.F.R.52.730.3/ As stated in 10 C.F.R. 6 2.715(a), "A person who is not a party may, in the discretion of the presiding officer, be permitted to make a limited appearance... but he may not otherwise participate in the proceeding." Thus, a petitioner is limited in his or her partici-pation to those matters provided by 10 C.F.R. Q 2.714. Accordingly, ELP's motion should be denied for lack of standing.
B.
There Is No Merit To ELP's 'totion and it Should Be Denied Even assuning, for argument's sake, that the absence of standing is not considered sufficient for danial of ELP's motion, ELP's arguments are without merit.
As shown below, ELP's notion is based on ELP's nere asser-tion that "it is premature to consider licensing Unit 2" (Motion, at 3).
Moreover, none of the provisions of 10 C.F.R. Part 2 cited by ELP expressly provide for the relief sought by ELP.
According to ELP, it is premature to consider granting an operating license for Unit 2'and the Board, pursuant to 10 C.F.R. 66 2.402, 2.711
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See the Board's Order, March 16, 1982, at 2, in which the Board con-sTHered a motion filed by another petitioner.
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a s and 2.718, should " separate the two dockets" and " postpone the proceed-ings for Unit 2."
(Motion,at2-3).
In this regard, the Staff notes that 10 C.F.R. 5 2.402 is inapposite. That section of the regulations allows for separate hearings on applications filed pursuant to Appendix A of Part 50, which concerns " situations in which applications are filed by one or nore applicants for licenses to construct or operate nuclear power reactors of essentially the same design.to be located at dif ferent sites." [ footnote omitted, emphasis added].
10 C.F.R. Part 50, Appen-dix N.
The Shearon Harris reactors are not located at different sites and thus, 10 C.F.R. 5 2.402 is not relevant.
10 C.F.R. I 2.711.
" Extension and Reduction of Time Linits," does not pertain at all to the relief sought by ELP, namely, postponement of the proceedings on Unit 2 or separation of the proceedings on the two units.
Rather, 10 C.F.R.
% 2.711 empowers a licensing board to extend or shorten the time provided for taking such actions as (to give an example) filing contentions.
See Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 13 (1980).2/ Although the Board has a duty, pursuant to 10 C.F.R. % 2.718, to, inter alia, conduct a fair hearing, the Staff believes that, for the reasons set forth herein, that provision does not provide a proper basis for granting the.elief ELP seeks.
--2/
The Appeal Board in ALAB-574, citing ALAB-565, 10 NRC at 523-524, noted that the Licensing Board, pursuant to 10 C.F.R. 6 2.711(a),
was expressly empowered there, given the large number of inter-vention petitions filed, to provide that contentions should be filed one month before the special prehearing conference.
ALAB-574, at 13 fn. 15.
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Q i As ELP states, the Applicant orginally asked in its December 18, 1981 letter transmitting its application that only Unit 1 be considered for an operating license.
However, as ELP admits, (Motion, at 3), in a January 7, 1982, letter, the Aonlicant " determined that it is more appropriate to consider both units at the same time for an operating license." (Letter, at 1). While it is correct that Shearon Harris Unit 2 is included in a list containing the Staff's "best estimate as to how many more cancellations (or indefinite deferrals) there will be of the plants in the U.S."3/, that list is merely an estimate and as indicated in a footnote:
"...this information is based on conjecture, news-paper articles, conversations with financial houses, and hearsay rather than any official announcement form the Applicant."
Id.
In opposing ELP's Motion, Applicant stated that "it has no intention ofcancellingShearonHarrisUnit2."1/ The Staff, for its part, is continuing its review of the application for operating licenses for both Shearon Harris units and has no intention of severing its review of the applicatinn for an operating license for Unit 2 from its review of the application for an operating license for Unit 1.
ELP cites the need for power issues " litigated in the present prceeding," (Motion, at 3), as an example of an issue which "may no 3/
Memorandum for Comissioner Ahearne from William J. Dircks,
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Executive Director for Operations, March 8,1982, " Attachment 1."
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See " Applicant's Answer to Environmental Law Project's Motion to Postpone or separate Proceeding or other Relief," March 31, 1982, at 4.
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longer be governed by the same facts or conditions by the time Unit No. 2 actually nears completion." (Id.) The need for power issue pro-vides no basis for severing or postponing consideration of Unit 2 since the Comission recently amended its regulations in 10 CFR Part 51,
" Licensing and Regulatory Policy and Procedures for Environmental Protection" to provide that for National Environmental Policy Act (NEPA) purposes, need for power (and alternative sites) will not be considered in operating license proceedings for nuclear power plants. See Federal Register Notice, "Need for Power and Alternative Energy Issues in Operating Licensing Proceedings," 47 Fed. M. 12,940 (ftarch 26,1982).
The Staff also disagrees with ELP's assertion that the pend 8an petitinn for rulemaking of Wells Eddleman (PRM-2-11), warrants the relief sought. The Commission has taken no action on this petition ana its aere pendency does not warrant a determination by the Board that the relief there sought (by way of amendment of the Commission's regulations),
should be granted individually in this proceeding.
In fact, the pendency of this petition is one additional reason not to grant ELP's notion, since a determination on that petition may shed some light on the question of conducting separate operating license hearings for each unit at a nuclear plant site.
The Staff also objects to ELP's proposal that the Board conduct hearings on Unit 2 upon the condition that the hearings "may be re-opened on motion by a party or intervenor after a certain period if the plant is not nearing completion." (Motion, at 2).
In ordar to reopen a licensing proceeding, an intervenor must show a change in a naterial fact which warrants litigation anew.
Shearon Harris Nuclear
, s Power Plant, Units 1, 2, 3 and 4), CLI-79-10, 10 NRC 675, 677 (1979).
It cannot be determined now that at the conclusion of the proceedings, there will be a basis for reopening such proceedings.
In addition to the foregoing, insofar as ELP seeks a postponement of the proceeding on Unit 2, its motion is in the nature of a request for a stay.b ELP argues that to proceed, would be, "if not a violation of the letter of the Fifth and Fourteenth Amendments to the U.S. Constitution, certainly in violation of the spirit of those amendments." (Motion, at 3). More than such general allegations of harm are required before ELP's request for postponement, which is in the nature of a request for a stay, can be granted. This Comnission has formally recognized that the criteria established in Virginia Petroleum Jobbers Ass'n. v. FPC, 259 F.2d 921 (D.C. Cir. 1958), must be satisfied to warrant issuance of a stay.
10 C.F.R. 6 2.788. Metropolitan Edison Company, et al. (Three
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It is clear that licensing boards have jurisdiction regarding the scheduling of proceedings, which may or may not invalve the post-ponement of issues involving separate reactors. Wisconsin Electric Power Company (Koshkonong Nuclear Plant, Units 1 and 2), CLI-75-2, 1 NRC 39, 42 (1975); Illinois Power Company (Clinton Power Station, Units 1 and 2), LBP-81-56, 14 NRC 1035 (1981).
In addition, licensing boards have the inherent authority to dismiss those matters placed supervening developments.
before them which have baan mooted by(North Coast Nuclear Power Plant, Puerto Rico Electric Power Authority Unit 1), ALAB-605, 12 NRC 153, 154 (1980). However, we do not believe that the Board can properly preclude hearings on matters previously noticed in the Federal Register absent a determination of mootness.
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC.645, 646-647 (1974); North Coast, ALAB-605, supra. While it is less than clear whether ELP in its present motion is simply seeking
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a scheduling change or an impermissible termination of a portion of the proceeding, we nonetheless think for the reasons set forth herein, that the motion should be denied.
Mile Island Nuclear Station, Unit 2), CLI-78-3, 7 NRC 307, 308 (1978);
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-338, 4 NRC 10, 13 (1976). These factors are:
(1) has the movant made a strong showing that it is likely to prevail upon the merits of its appeal; (2) has the movant shown that, without the requested relief, it will be irreparably injured; (3) would the issuance of a stay substantially harm other parties interested in the proceeding; and 6
(4) where does the public interest lie?_/
The strength or weakness of any of these factors determines how strong a showing nust be made on the other factors. Seabrook, ALAB-338, supra.
Most inportantly, there ordinarily must be a showing of substantial irreparable injury to the movant absent the stay. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-347, 6 NRC 630, 632 (1977); Davis Besse, ALAB-385, supra. Although the " level or degree of possibility of success" on the merits necessary to justify a stay varies etcording to the tribunal's assessment of the other factors; where there is no showing of irreparable injury, the showing of likel -
hood of success on the merits must be overwhelming to justify a stay, riorida Power & Light Co. (St. Lucie Nuciear Power Plant, Unit 2),
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These factors are incorporated in 10 C.F.R. 6 2.788(e), dealing with stays of. initial decisions.
In the Staff's view, they can be applied
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to stays of proceedings prior to initial decisions.
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9 2 i ALAB-404, 5 NRC 1185, 1186-89 (1977); See also, Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit 2), ALAB-456, 7 NRC 63, 68 (1978).
ELP has not even attempted to address these factors, seve for the aforenentioned unsupported allegations of harm. The allegations, on which the request for relief is predicated, are very general ones which, according to prior decisions, e.g. Davis-Besse, ALAB-385, supra, are of no coment.
Even beyond its failure to satisfy the legal requirements for a stay, ELP has not recogni;ed that in view of "this changing economic, engineering, and regulatory environment" (Motion, at 3) it may be possible to show good cause for amendment of contentions with leave of the Board. As stated by the Commission:
Insofar as petitioners may be precluded from adding to their original contentions should an unforeseen issue present itself further on in the oroceeding, we can only answer that a petitioner for intervention, like any other pleading in modern practice, is not etched in stone. Leave to amend petitions for inter-vention will be granted where a petiticaer shows that good cause exists for the belated assertion and where such amendment will assist the Board in resolving the issues before it without undue delay. Cf. also 10 CFR 6 2.752(a)(2). Wisconsin Electric Power Com]any, et al.
(Koshkonong Nuclear Plant, Units 1 and 2), C.I-75-45, -
8 AEC 928, 929 (1974).
4 s III. CONCLUSION Besed on the foregoing, the Staff believes that ELP's motion may properly be denied on the basis of ELP's lack of standing.
In addition, no basis exists for the Board to sever or postpone this proceeding.
Accordingly, ELP's motion should be denied.
Respectfully submitted, dLw% Ikfledu U Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland 1
this 5th day of April, 1982 J
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6 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0 tit 11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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CAROLINA POWER AND LIGHT C0t'PANY
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Docket Nos. 50-400
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50-401 (Shearon Harris Nuclear Power
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Plant, Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO ENVIRONMENTAL LAW PROJECT'S MOTION TO POSTPONE OR' SEPARATE PROCEEDINGS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first
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class, or, as indicated by an asterisk, through deposit in the Nuclear Regula-tory Commission's internal mail system, this 5th day of April, 1982:
- James L. Kelley, Chairman tir. Travis Payne, Esq.
Atonic Safety and Licensing Board Panel 723 W. Johnson St.
U.S. Nuclear Regulatory Commission P.O. Box 12643 Washington, D.C.
20555 Raleigh, N.C.
27605
- t1r. Glenn 0. Bright Daniel F. Read, President Atomic Safety and Licensing Board Panel CHANGE U.S. Nuclear. Regulatory Commission P.O. Box 524 Washington, D.C.
20555 Chapel Hill, N.C.
27514
- Dr. James H. Carpenter Daniel F. Read Atomic Safety and Licensing Board Panel 100-B Stinson St.
U.S. Nuclear Regulatory Commission Chapel Hill, N.C.
27514 Washington, D.C.
20555 Patricia T. Newman, Co-Coordinator Wells Eddleman Slater E.
Newman, Co-Coordinator 325 E. Trinity Ave.
Citizens Against Nuclear Power Durham, N.C.
27701 2309 Weymouth Ct.
Raleigh, N.C.
27612 i
George Jackson, Secretary
-Environmental Law Project Richard D. Wilson, M.D.
School of Law, 064-A 729 Hunter St.
University of North Carolina Apex N.C.
27502 Chapel Hill, N.C.
27514 i
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i John Runkle, Executive Coordinator Docketing and Service Section Conservation Council of North Carolina Office of the Secretary 307 Granville Rd.
U.S. Nuclear Regulatory Commission Chapel Hill, NC 27514 Washington, D.C.
20555
- George F. Trowbridge, Esq.
Dr. Phyllis Lotchin Thomas A. Baxter, Esq.
108 Bridle Run John H. O'Neill, Jr., Esq.
Chapel Hill, North Carolina 27514 Shaw, Pittman, Potts & Trowbridge 1800 f1 Street, N.W.
Washir.gton, D.C. 20036
- Atomic Safety and Licensing Rnard Panel U.S. Nuclear Regulatory Comnission Washington, D.C.
20555 J
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Conmission Washington, D.C.
20555 M& kWel Mar,iorie Rothschild Counsel for NRC Staff i
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