ML20058A470
| ML20058A470 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 04/08/1981 |
| From: | Fitzgerald NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, TASK-AII, TASK-SE SECY-81-224, NUDOCS 8110280679 | |
| Download: ML20058A470 (5) | |
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April 8, 1981
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SEOY-81-224 l
ADJUDICATORY ISSUE T h e C o m m(i s s i o nInformation)
For:
From:
James A. Fitzgerald Assistant General Counsel
Subject:
REVIEW OF ALAB-635 (MATTER OF HOUSTON LIGHTING AND POWER CO.)
Facility:
Allens Creek Nuclear Generating Station, Unit 1
Purpose:
To inform the Commission of a minor Appeal Board decision. 1/
Discussion:
Last summer, intervenor TexPIRG moved t?.e Licensing Board to direct the staff to supplement the Allens Creek Final Environmental Statement to consider the environmental impacts of " Class 9" accidents.
On September 15, the Board denied the motion and nc appeal was taken.
On January 15, 1981, TexPIRG moved for directed certification before the Licens-ing Board and the Appeal Board. 2/
On March 2, the Licensing Board denied relief and on March 10, the Appeal Board did likewise.
ALAB-635, 13 NRC
'(March 10, 1981).
The Appeal Board denied inter-locutory relief, finding that TexPIRG was not 8110280679 930412 threatened with any "immediate and serious irre-GSb1N 92-436 PDR parable impact which... could not be alleviated t:
a later appeal."
Public Service Co. of Indiana
-1/
The Office of the General Counsel has determined that this decisic should be treated as an information item only.
No petitions for review have been received and none are expected.
The review time expires April 20, 1981.
-2/
TexPIRG asked for certification of three questions:
whether NEPA requires _a Class 9 accident analysis for all construction permit applications, whether the NRC Interim Policy requires such an analysis in ongoing NEPA reviews, and whether Allens Creek raises "special circumstances" to warrant an early review prior to the 01 application.
CONTACT:
Mark E. Chopko, OGC 634-3224 L. :
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2 (Marble Hill Nuclear Generating Station), ALAB-405, 5 NRC 1190, 1192 (1977).
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l The Commission will recall, however, that OGC noted its disagreement with one aspect of the September 15 order.
SECY-A-80-153 (October 7, 1980).
In that t
order the Board concluded that both the Commission's Black Fox decision and the Statement of Interim Policy 3/ barred the Board's evaluation of whether i
"special circumstances" existed at Allens Creek independent of the staff's conclusions.
While that finding was in error for the reasons expressed in SECY-A-80-153, that particular issue was not among those reques,ted for certification by TexPIRG.
N. 2, sopra.
TexPIRG's concern was whether the staff should prepare a supplemental FES and not l
whether the Board 's ruling was correct in all l
respects.
Thus, the question of the Board's own authority to evaluate "special circumstances" is j
not presented in this case.
ALAB-635 is attached for information.
,. s
- . pr 4
James A.
.-dt: gerald dssistant General Counsel j
j
Attachment:
ALAB-635 1/
Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
CLI-80-c, 11 URC 433 (1960), statement of Interim Policy, "Acci-dent Considerations Under [NEPA]," 45 Fed. Reg. 40101 (June 13, 1980).
See also Black Fox, supra, CLI-60-31, 12 NRC 264, 269 n.5 (1980).
DISTRIBUTION:
Commissioners Commission Staff Offices Secretariat
1
. - 6 In an unpublished order entered on January 19, 1981, we an-1 nounced that we would withhold decision on the directed certifi-cation motion to await Licensing Board action on the simultaneously filed request that it either (1) refer its September 15 ruling under 10 CFR 2.730 (f) or (2) certify the question decided in the ruling under 10 CFR 2.718 (i).
On March 2, 1981, the Licensing Board acted:
in an unpublished memorandum and order, it denied the request.
The directed certification motion is thus now ripe for our determination.
2.
Almost four years have elapsed since our notation that:
Almost without exception in recent times, we i
have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner..
Public Service Co. of Indiana (Marble Hill Nuclear Generating S tation), ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted).
That standard still prevails.
In this instance, it is not met.
The fact that TexPIRG waited four full months before seeking interlocutory review of the September 15 ruling gives a hollow ring to any claim on its part that the ruling threatens it with irreparable impact both immediate and serious.
Beyond that, it has not been satisfactorily explained why appellate scrutiny of the ruling cannot abide the event of the initial decision and (if t
B
. 3 dissatisfied with the result reached in that decision) TexPIRG's l
appeal from it.
To be sure, if the ruling were found erroneou,s on such an appeal, the consequence might well be a vacation of j
the initial decision and a remand to the Board below.
But the same possibility exists with respect to all interlocutory deter-minations made by licensing boards on matters which have a poten-tial bearing upon the outcome of the proceeding.
If, standing alone, that consideration were enough to justify interlocutory v
review, it would perforce follow that virtually every significant licensing board ruling during the course of a proceeding would be
(
i a fit candidate for immediate appellate examination.
It is scarcely i
necessary to expound at any length upon why a drastic alteration l
of existing practice to accommodate that thesis would be intoler-able -- as well as in derogation of the Commission's explicit policy disfavoring interlocutory review.
I e
Directed certificatior denied.
It is so ORDERED.
FOR THE APPF.AL BOARD i
s Q. A - sw b3 C. Jep B2. shop
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Secretary to the Appeal Board J/
No serious claim has been, or could be, made that the ruling l
in question has "affected the basic structure of the proceed-ing in a pervasive or unusual manner".
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UNITED STATES OF_ AMERICA DOOKETED NUCLEAR REGULATORY COMMISSION k
USNRO
,I ATOMIC SAFETY AND LICENSING APPEAL BOARD E,'
M:4 cf the segfy.
Administrative Judges:
'N["i:
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T/ i Alan S. Rosenthal, Chairman g
,j Dr. John H. Buck l
gEfD Christine N. Kohl 019Bj
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In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit No.1)
)
)
i Mr. James Morgan Scott, Jr., Sugar Land, Texas, for the intervenor Texas Public Interest Re-search Group.
MEMORANDUM AND ORDER March 10, 1981 P
(ALAB-635) 1.
We have before us the January 15, 1981 motion of inter-venor Texas Public Interest Research Group (TexPIRG) seeking di-rected certification of an interlocutory ruling of the Licensing Board.
See 10 CFR 2,71S (i), Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271,1 NRC - 4 78, 482-83 (1975).
The ruling in question -- contained in, an unpublished.,,,. ;,,
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order entered on September 15, 1980 -- rejected i'exP.iRG,'ls..pos'itii'on that the NRC staff should be required to prepare a supplement to its Final Environmental Statement for the Allens Creek, facility.
The supplement envisioned by TexPIRG would adbess the environ-mental impacts of so-called _" Class 9 accidents],
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