ML20058J444

Order Following 820802 Conference W/Parties in Bethesda,Md. Hearing Will Commence on 820823 in Oak Ridge,Tn & Will Be Limited to Listed Site Suitability Contentions.Some LWA-1 Issues May Be Heard Prior to Issuance of Final Fes Suppl

ML20058J444
Person / Time
Site:	Clinch River
Issue date:	08/05/1982
From:	Mark Miller Atomic Safety and Licensing Board Panel
To:
References
NUDOCS 8208090262
Download: ML20058J444 (7)

Text

r

~

i; 00CXETED USNRC UNITED STATES OF AMERICA '82 550 -6 #0 22-NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BRANCH BOAkD v XbftIGNI$

Before Administrative Judges ,,,

Marshall E. Miller, Chairman Gustave A. Linenberger, Jr. SERVED kUG 01982 Cadet H. Hand, Jr.

)

In the Matter of ) Docket Nos. 50-537 UNITED STATES DEPARTMENT OF ENERGY PROJECT MANAGEMENT CORPORATION )

TENNESSEE VALLEY AUTHORITY )

) August 5, 1982 (Clinch River Breeder Reactor Plant)

ORDER FOLLOWING CONFERENCE WITH PARTIES A conference with parties was held pursuant to telegraphic notice in this proceeding on August 2, 1982 at Bethesda, Maryland. Counsel representing the United States Department of Energy, Project Management Corporation, and Tennessee Valley Authority (Applicants), the Staff, and Natural Resources Defense Council and Sierra Club (Joint Intervenors) participated in the conference.

The Board heard arguments on and considered the following motions and responses concerning the scope and scheduling of the LWA-1 (Limited Work Authorization) hearings:

8208090262 820805 PDR ADOCK 05000537 C PDR

All parties agreed that Staff's decision to issue a draft FES Supplement instead of a final FES Supplement necessitated some change in the hearing schedule, but differed as to the extent of the change.

Intervenors argued in their Motion to Reschedule Hearings and at the conference with parties thct commencement of the LWA hearing must await completion of the final FES Supplement. Intervenors urged that Commission regulations, in particular 10 CFR s2.761a,1I Commission precedent, and CEQ (Council on Environmental Quality) regulations prohibited the commencement of the hearing on any of the LWA issues prior to an issuance by Staff of the final FES Supplement.

Both Applicants and Staff argued in their pleadings and at the conference that Commission regulations and precedents do not prohibit the commencement of LWA-1 hearings prior to the issuance of the final FES Supplement and that the hearings should commence as scheduled on August 23, 1982.

-1/ 10 CFR 2.761a-provides in pertinent part: "the presiding officer shall, unless the parties agree otherwise or the rights of any party would be prejudiced thereby, commence a hearing on issues covered by 50.10(e)(2)(ii) and Part 51 of this Chapter as soon as practicable after issuance by the Staff of its final environmental impact statement but no later than 30 days af ter issuance of such statement, and canplete such a hearing and issue an initial decision on such matters.... This section shall not preclude ,

separate hearings ~and decisions on other particular issues."

Applicants and Staff argued that 10 CFR 92.761a is not prohibitive, i

but rather provides a deadline by which a hearing must be initiated. In addition, Staff and Applicants urged that 10 CFR 51.52(a) applies to LWA-1 proceedings,EndthatIntervenors'interpretationof10CFR 2.761 would make the two regulations inconsistent with each other.S! Applicants and Staff argued that regulations should be interpreted so as to be mutually applicable and not repugnant to each other. ,

Applicants proposed that all parties proceed to hearing on all site ,

suitability issues, that the Applicants and Intervenors proceed to ,

hearing on all contentions, and that the NRC Staff proceed to hearing on Contentions 1, 2, 3, 5, 7 and 11. (Tr. 705)

Staff agreed with Applicants proposal that Applicants and Intervenors go forward on all contentions, but differed with respect to those contentions which Staff should go forward on. Staff proposed that

-2/ 10 CFR s51.52(a) provides: "In-iny proceeding in which a draft environmental impact statement is prepared purrsant to this part, the draft environmental impact statement will t:: made available to the public at least fifteen (15) days prior to the time of any relevant hearing. At any such hearing, the position of the Commission's Staff on matters covered by this part will not be presented until the final environmental impact statement is furnished to the Environmental Protection Agency and commenting agencies and made available to the public. Any other party to the proceeding may present its case on NEPA matters as well as on radiological health and safety matters prior to-the end of the fifteen (15) day period." ,

l s <'

_4 it should proceed to hearing only on tnose contentions which are not dependent on Staff's analysis in the FES -- Contentions 1, 2, 3, 5(b),

7(a) and 7(b). (Tr.706)

In addition to general objections to the commencement of hearings prior to the issuance of the Final FES Supplement, Intervenors objected to segmentation of the hearings in the manner proposed by Staff and Applicants. Intervenors argued that the Board is prohibited from commencing hearings on any issue which is related to other issues for which hearing is postponed.

After consideration of the motions and arguments of counsel, the Board decided that the evidentiary hearing will commence as scheduled on August 23, 1982 in Oak Ridge, Tennessee and will be limited to those contentions relating to site suitability: 1(a); 2(a), 2(b), 2(c), 2(d),

2(e); 2(f), (g) and (h) with respect to the computer codes used for performing the 10 CFR Part 100.11(a) site suitability analysis; 3(b),

3(c) with respect to the codes used for site suitability analyses, 3(d) and 5(b). (Tr. 859) The Board accepts Staff's and Applicants' interpretation of 10 CFR s2.761a and finds that it is authorized to  :

proceed with hearing some site suitability LWA-1 issues prior to Staff's issuance of the final FES Supplement. In addition, the Board is of the opinion that even if there be any requirement to await commencement of the hearings until after the issuance of a FES, the issuance of the FES by Staff in 1977 satisfies that requirement.

The Board believes that it may use its discretion to segment hearings in a reasonable way and rejects Intervenors' arguments that only issues which are entirely independent from those which are being postponed may be heard at this time. (Tr.835) The Board holds that contentions relating to NEPA and the final FES Supplement should await hearing until after issuance of the Final FES Supplement by the Staff.

Therefore, all testimony and cross-examination relating to the FES may be postponed to the second phase hearings where the FES will be offered into evidence. Since a complete and up-to-date SSR (Site Suitability Report) has been issued by the Staff, the Board believes it is reasonable and appropriate to commence hearings on the site suitability issues at this time. The scope of the evidentiary hearings commencing on August 23, 1982 (Phase 1) is defined by the SSR (NUREG-0786).

(Tr. 819)

Intervenors suggested that Contention 5(b) addresses NEPA issues and not site suitability issues [Tr. 831-83,837]. The Board ruled that if 5(b) is shown to be relevant to of the FES, then Intervenors will not be penalized for not introducing evidence on that issue during the site suitability phase of the hearings. (Tr. 839) In general, parties will not be prohibited from putting forth testimony and evidence with respect to the FES, at the time of the environmental or second phase hearings

(insofar as they are relevant and admissible as to those matters), on the grounds that they could have been produced at the hearings on site suitability issues. (Tr. 863) Parties will be required to show reasonable relevance as defined by the Federal Rules of Evidence as well as materiality. (Tr. 863)

The Board denied the Intervenors' Motion to Reconsider Rulings on Contentions dated July 29, 1982. All limitations regarding the scope of issues remain as set forth in the Board's Order following conference with parties, entered April 22, 1982. The Board is not aware of any changes that would convince it to alter its previous decision. (Tr.

(Tr.864-65)

The Board declined Intervenors' request to certify to the Appeal Board the question raised by their motion. (Tr.865) All discovery related to the site suitability report and to those contentions related to it is to be concluded by August 6, 1982, as scheduled. (Tr. 859)

Formal discovery on the Supplement to the FES will commence when a final document is issued. Informal discovery on environmental impact statements may commence at any time. (Tr. 873)

The Board granted Intervenors' request to extend the date for the prefiled written testimony on those issues to be heard at the first phase of the hearing from August 13 to August 16. (Tr. 862-63)

The Board suggested that the parties confer and make recommenda-tions for a discovery schedule and commencement of hearing on the final Supplement to the FES. (Tr. 874)

The Board indicated that the order of presentation of evidence will be for Applicants to proceed first, followed by Staff and then by Intervenors, except when the Staff takes a position which is significantly different from that of Applicants. In that case the Board might reconsider the order of proof as to such issues or witnesses.

(Tr. 866-869)

IT IS SO ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD WA >

~ MarsnalI E. Miller, Chairman ADMINISTRATIVE JUDGE August 5, 1982 i

l

. , - . _ . _ . _ _ - - . . , _ _ . -