ML20058G293
| ML20058G293 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/02/1982 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-685, ISSUANCES-SP, NUDOCS 8208030261 | |
| Download: ML20058G293 (7) | |
Text
.
r 00LMETED USHFC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'82 AW -2 P 2 :09 ATOMIC SAFETY AND LICENSING APPEAL BOARD OF S~-
Administrative Judges:
f-Gary J.
Edles, Chairman Dr. John H. Buck Dr. Lawrence R. Quarles*
gyED [\\@
Christine N.
Kohli Dr. Reginald L. Gotchy
)
In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 - SP
)
(Three Mile Island Nuclear
)
(Restart)
Station, Unit No. 1)
)
)
MEMORANDUM AND ORDER August 2, 1982 (ALAB-685)
In our order of July 14, 1982 (unpublished), we directed licensee and the NRC staff to answer certain questions arising out of the plant design and procedures phase of this proceeding.
On July 26, 1982, licensee filed an objection to our question III.E (concerning environmental qualification), asserting that it goes beyond the scope of the restart hearing and is governed by Commission regula-tions of generic applicability to operating reactors.
l I
Because Part I of this opinion concerns our review of all phases of this proceeding, we include all the members of the several Appeal Boards assigned to review this case.
8208030261 820802 PDR ADOCK 05000289 o,
PDR y
o
2 Licensee also argues that many of our questions exceed the proper scope of appellate review in this case.
Licensee's Objection to and Comments on Appeal Board Order dated July 14, 1982 (July 26, 1982), at 1-2, 6-7, 13.
1 In view of the large amount of data which licensee asserts would have to be submitted in answering question III.E (id. at 6), as well as the pendency of a final rule on environmental quali~fication (see 47 Fed. Reg. 28363 (June 30, 1982)), we. suspend until further notice licensee's obligation to answer that question.
Parties may respond to the licensee's objection by filing a reply no later than August 20, 1982, and may address licensee's objection at oral argument. --2/
With regard to licensee's comments on our other questions, we perceive a need to clarify the scope of our appellate review, as detailed in Part I, below.
Licensee's comments in this connection include a request that we set
~~1/
Licensee nonetheless intends to answer all questions addressed to it (except III.E).
Licensee's Objection at 13.
_2/
Licensee also requested that, in the event we disagree with its objection, we certify the matter to the Conmission.
Because of our temporary suspension of g
licensee's obligation to respond to question III.E, we need not rule on licensee's request now.
9 3
aside time at oral argument for discussion of the proper scope of our appellate review in this proceeding.
We believe the issue can be resolved without oral argument; the licensee's request is therefore denied.
Part II contains our notice of oral argument for the plant design, procedures, and separation issues on appeal.
I.
Scope of Appellate Review As a general proposition, licensee asserts that our appellate jurisdiction in this proceeding is limited to a review of only those contested issues that the parties have raised before us in their exceptions and briefs.
In its view, we should confine our inquiry accordingly and not ask questions about mat.ters covered at the hearing but not raised in exceptions.
Licensee's Objection, supra, at 6-8, 11-13.
SI We believe that licensee's position is not only incorrect but fundamentally inconsistent with the proper exercise of our appellate review function.
As licensee correctly points out, this is a special proceeding not specifically addressed by Commission regulations.
But in its August 9, 1979 Order and Notice of Hearing, the Commission expressly directed that the TMI-1
~--3/
One of the licensee's particular concerns is that our
{
inquiry may delay resolution of the issues on appeal.
Such is not our intention.
To the contrary, we anticipate that the answers provided may serve to clarify and thereby expedite our consideration of the matters before us.
I
4 restart proceeding was to be " conducted in accordance with the applicable provisions of subpart G of the Commission's Rules of Practice set forth in 10 CFR Part 2."
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),
d!
CLI-79-8, 10 NRC 141, 147 (1979).
In the same order, the Commission directed that, pursuant to 10 CFR 2. 760 (a),
upon issuance of the Licensing Board's initial decision "the record be certified to the Commission itself for final decision."
Id. at 147.
In view of the length of the hearing, size of the evidentiary record, and number of complex issues involved, the Commission later reconsidered, what it characterized as a " decision to deviate from its customary practice" and ordered that an Appeal Board be established to hear initial appeals.
CLI-81-19, 14 NRC 304, 305 (1981).
Nothing in the latter order suggests that the Commission intended to relieve us of our well-established authority to review the entire record of a proceeding sua, sponte, independently of the parties' positions, in accordance with subpart G.
This authority to review the entire hearing record, including matters not appealed by the
_4/
Subpart G contains rules of general applicability that g
govern procedure in all adjudications initiated by the issuance of, inter alia, a notice of hearing.
5 parties, is expressly delegated to us in subpart G of 10 CFR 1
Part 2.
Pursuant to 10 CFR 2.785 (a), we are authorized "to exercise the authority and perform the review functions which would otherwise have been exercised and performed by the Commission, including, but not limited to, those under (10 CFR 2.770] in.
such.
licensing proceedings under the regulations
. as the Commission may specify."
Section 2.770 (a) states that, although it may limit the issues to be reviewed and consider only findings and conclusions to which exceptions have been filed, the Commission (and hence, the Appeal Board) "will ordinarily,
consider the whole record on review."
In short, "there is no doubt that the absence of an appeal does not deprive us of the right to review an issue that was contested before a licensing board."
Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245, 247 (1978).
- See, e.g.,
Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 n.6~(1981).
There is no indication whatsoever in the Commission's order returning appellate jurisdiction to us that it intended to override the customary scope of our
(
appellate review as established by the regulations and case precedents.
Acccrdingly, the scope of our review of each j
phase of this proceeding will be comparable to that
e 6
generally undertaken in all cases before us.
E II.
Notice of Oral Argument on July 26, 1982, in response to licensee's motion of the same date, we granted a three-day extension (to August 12, 1982) for the filing of licensee's responses to our questions.
Replies are due by August 25, 1982.
Oral argument on issues of plant design, procedures, and separation will begin at 9:30 a.m. on Wednesday, September 1,
1982, in the NRC Public Hearing Room, Fifth Floor, East-West Towers Building, 4350 East-West Highway, Bethesda, Maryland.
The Union of Concerned Scientists is allotted a total of 90 minutes for its presentation.
Licensee and the staff are each allotted 60 minutes.
Appellants may reserve
--5/
Our authority to review the entire record must be distinguished from our power in operating license application proceedings to consider serious safety, environmental, and common defense and security matters not otherwise placed in issue by the parties.
See 10.
CFR 2. 785 (b) (2).
That authority can be invoked only after advising the Commission and observing special procedures.
Cf.:
Houston Lighting and Power Co.
(South Texas Project, Units 1 & 2), LBP-81-54, 14 NRC 918, 922-23 & n.4 (1981).
We also distinguish those cases not involving operating license applications where we seek Commission approval before pursuing new safety questions not previously put in controversy or otherwise raised in an adjudicatory context.
See CLI-82-12, 16 NRC (July 16, 1982), denying our June 7
30, 1982 request for authorization to consider three new safety issues as part of our appellate review of plant design, procedures, and separation matters in this very proceeding.
e n
~
n.
N
-s
~
7 up to 25 percent of their time for' rebuttal.
We anticipate s
that both' morning and afternoon sessions will be required.
Parties need not address all issues at oral argument and nhould concentrate on the more important matters' raised on; i
u
\\
appeal.
1 We recognize that the staff has withdrawn ~its support' i
\\ of the Licensing Board's decision on the need for reactor 4
s
^
. water level instrumentation.
All parties should be prepared to address licensee's arguments on appeal of this issue.
Each party is to notify the Secretary to this Board, in
,.'N writing, by Monday, August 23, 1982 of the name of the person who will present argument on its behalf.
\\
\\
It.is so ORDERED.
FOR THE APPEAL BOARD O..bl+3b... -
s, C.
Je Shoefnaker Secret)f.ry to the Appeal Board 4
Dr.-Quarles was not available to' participate in this decision. ~
.s 5
N 5
g s
s
- -. - - -