ML20059L840

Applicant Response to Memorandum & Order (Motion to Dismiss).* Board Should Not Undertake Sua Sponte Review Due to Board Lacking Jurisdiction.W/Certificate of Svc

ML20059L840
Person / Time
Site:	Turkey Point
Issue date:	09/14/1990
From:	Bauser M FLORIDA POWER & LIGHT CO., NEWMAN & HOLTZINGER
To:	Atomic Safety and Licensing Board Panel
References
CON-#490-10831 LBP-90-16, OLA-5, NUDOCS 9010010331
Download: ML20059L840 (13)

Text

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'90 SEP 171 A10:07.

1 UNITED STATES OF AMERICA frqcE or Sica[it,ny NUCLEAR REGULATORY COMMISSION MM Tj / g%Vlfi BEFORE THE ATONIC SAFETY AND LICENSING BOARD

) September 14, 1990 In the Matter of- )

)- Docket Nos.- 50-250 OLA-5 FLORIDA POWER-AND LIGHT- ) 50-251 OLA-5 COMPANY )

)

l! (Turkey Point Plant, ) (Technical Specifications L

Units 3 and 4) ) Replacement)

)

L e APPLICANT'S RESPONSE TO MEMORANDUM AND ORDER (MOTION TO DISMISS)

1. INTRODUCTION On July 17, 1990,.the Atomic Safety and Licensing Board; in.the instant proceeding issued a Memorandum and Order'(" Order")

I dismissing the Nuclear Energy' Accountability-Project (" NEAP") as a party in this operating license-amendment proceeding. Y-Prior to its dismissal of the-only parties seeking to intervene,,

the Board had, in LBP-90-16, 31 NRC 509, admitted a number.of~

contentions. The July 17 Order requested the NRC Staff to comment, within a specified period of time, i

on whether the admitted contentions contain any serious issues that should be admitted in this proceeding sua sponte. Applicant may x

t u The Order also reaffirmed the earlier dismissal, in LBP 16, 31 NRC 509, June 15, 1990, of the only other petitioner.

Order, p. 2 at fn'. 1 and p. 14.

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have' ten additional business days within

which to comment on the Staf f 's filing. -

/i; ' Order, pp. 2a3.

y W Thereafter, on. August 31, 1990, the' Staff filed the "NRC_ Staff's Response'to Licensing Board's Order of July 17,

(; 1990" (" Staff Response"). There the Staff took the position l'l that, since NEAP had filed a Notice of Appeal of its dismissal, j' . -

B at least at this time it is beyond the g: jurisdiction of the Licensing Board to make l any ruling as to whether these admitted' f

contentions raise serious safety issues requiring ana sponte review.

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-Staff Response, pp.-4-5. It, nevertheless, went on to discuss the admitted contentions and concluded that -- even if-the

-Licensing Board were to disagree andLdetermine that'it had q[ jurisdiction -- the contentions do not, in fact,jraise serious

' issues requiring sua sponte review.

In accordance with the Board's Order, Florida Power &

Light Company ("FPL" or " Applicant") submits the:following comments on the Staff's Response. In sum,-FPL concurs in the i

' Staff's conclusion that the Board lacks jurisdiction to consider sua sponte questions at this time and that, in any event, the i possible sua sponte questions do not in fact raise any serious issues. However, FPL submits the-following, additional comments for the Board's consideration.

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8 II. JURISDICTION 'l

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It is FPL's view.that, in addition to the effect of'the. <$

b ,pending appeal referred to by the Staff, there is another reason

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why.the Licensing Board lacks jurisdiction to consider. issues ana; sponte at this time.. This Board was formed. pursuant to a notice' issued January;24, 1990 by the Chief Administrative Judge, l exercising authority _ delegated-to him'by the Commission.3 The r

notice;was entitled: " Establishment of Atomic SafetyLand: }

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. Licensing Board to Preside in Proceeding" ("Establirhment-3~

Order"), and stated as follows:

Pursuant.to delegation by the' Commission ,

dated. December 29,-1972,-- published in'the Federal' Register, 37 F.R.-28710 (1972),

p Sections. 2.105, 2.700,.2.702, 2.714, 2.714a, L 2.717 and 2.721 of the Commission's ,  :

p -Regulations, alloas amended, an/ Atomic Safety and Licensing Board is.being established in the following. proceeding to rule on petitions ~y to intervene and/or reauests-for-hearina and.

to nreside over the nroceedina'in the event-

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that-a hearina is' ordered.- l

.(Emphasis added.) In its Order,-this Board dismissed NEAP as a i

.pArth:andreaffirmedtheearlierdismissalofThomasJ.Saporito, .

/the only other petitioner.u Collectieely. +hese rulings t

' disposed of the-only petitions to intervene.

2/ . See fn. 1, supra, and accompanying text, o

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- A Licensing Board has only: the authority that is

delegated to.it by the Commission. E.g., Public Servica'Co. of Indiana (Marble Hill: Nuclear Generating Station, Units 1 and 2),

ALAB-316,.3 NRC 167, 1,0-71 (1976). In the instant case, the Board has reached the limits of the jurisdiction' conferred on it by the Commission. Having properly dismissed all petitions to I

intervene, the Board may not now take further action.. i In Public Service Co. of Indiana and Wabash, Valley I Power Association (Marble Hill Nuclear Generating Station,-Units a h 1 and-2), LBP-86-37, 24 NRC 719 (1986), the Licensing Board faced l l

a situation analogous to the instant case. There, Public Service  ;

Company of Indiana ("PSC")ofiled'an application for an operating

= license. A notice of opportunity,for a hearing was published.and petitions to intervene-were; filed >by-three parties. The Chairman-of the Licensing Board Panel designated a Licensing Board to rule on petitions to intervene and requests for hearing, and to preside over any hearing in the event _a hearing were ordered.  ;

i Id at 720-21.- The language of that notice was, in substance, l

identical to that of the Establishment Order in the instant i

Case.U i

The Marble Hill Licensing' Board deferred a final' ruling on intervention petitions and proposed contentions. However, U See 48 Fed. Reg. 19,964 (May 3, 1983).

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before a' final-ruling on petitions and contentions was11ssued; 7 PSC canceled construction and moved to terminate-the proceeding.

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24 NRC 719 at 721. At that point, the Licensing Board " invited the parties to file briefs on the reach of the Board's jurisdiction to impose conditions on any withdrawal of the Marble V Hill construction permits." Id at 722.

6 In concluding that it lacked authority to take further action-under the provisions of 10 C.F.R. S 2.107, the Board had occasion to consider the bassa jurisdictional framework governing post-construction permit proceedings and' hearings.u According to the scheme for hearings under'S 189a(1) of the Atomic Energy Act, where a construction permit:has been issued following,a hearing, the Commission need not conduct a hearing on the operating license application unless requested by a party whose interest may be affected by the-application.

Notice of' intent to issue,such a license-and the opportunity for such a hearing must be published in the Federal Register with 30 days notice.

U Hearings are mandated only in construction permit

. proceedings. Thereafter, amendments to construction permits, operating licenses, and amendments to operating licenses may all be issued without a hearing, unless one is specifically and properly requested. San Atomic Energy Act of 1954 S 189(a), 42 U.S.C.A. S 2239(a) (West Supp. 1990). l

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'ConsistentLwith-that statutory scheme the commission, asiisJalways the case'in operating license proceedings,. delegated to a licensing board.(one designated-by the Panel Chairman) two arman of jurisdiction. The first was to rule on raguants for hearing and petitions to intervena. The amennd was to exercise the Cnmmission's authority to imana-any notice of hearing in the avant a hearing

.is granted upon a petition or-to lasua any other appropriate order.

Idm at 723-24-(emphasis added). After noting the foundations of its jurisdiction, the Marble Hill-Board described the procedural.

status of the cases (A)t tha 'ime this proceeding was suspended, .iotice of hearing;on'the application had been issued. Standing to intervene had not been established by two of the three petitioners and the Board had not

, anoroved any issues for hearina from the lists of contentions filed-by'any of the petitioners.

• Idi at 724 (emphasis added); With the facts-establishing that the prerequisites to continued Board jurisdiction'did not exist, the Board concluded:

[F)ull analysis leads to the conclusion that '

the regulations,: statutes and the Federal Register notice all anticipate a bifurcated process in' operating license. proceedings where first the threshold interventien issue in-settled, then the notice of hearing is issued.

Idm at 724.

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-7 Because the " threshold intervention issue" -- requisite to.further authority -- had not bean satisfied, the Licensing Board found itself without jurisdiction to condition PSC's withdrawal. Accordingly, the Board simply granted PSC's motion s and took no further action.

1 As noted at the outset, the precise question considered in Marble Hill was the application of section 2.107 of NRC regulations. However, FPL submits that the general principle developed in the course of.that decision.is fully applicable here. NRC regulations, the Atomic Energy Act, and the Federal e . Register notice establishing this Board all envision a bifurcated process whereby the issue of intervention is~ settled first.- If intervention is granted, a hearing is held and matters which have

been properly-placed in issue are considered. Otherwise,'

however, the Board's Commission-granted jurisdictionLis at-an

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end. Having properly denied intervention in the instant case, 1 the Board has no basis for further action;U including the exploration of mua sponte questions which might have been

-properly addressed had a hearing been ordered.

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'je 2, # Although Marble Hill was an operating license proceeding.and the instant case involves an operating license amendment. the relevant factors are the same.- See fns. 3 and 4, suprc, and accompanying text.

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h* The principle developed in the Marble Hill case is alco ,

,' reflected in'Rockwell International Corporation (Special Nuclear- a Material License Number SNM-21), ALAB-925, 30 NRC 709 (1989)',  ;

aff'd, CLI-90-05, 31 NRC -- (1990). In Rockwell, the Appeal 1

Board considered the propriety of requests by the Presiding ,

a Officer for information from certain parties which "proceded his ruling on any petition for a hearing, and thereby preceded the 1 1T determination'that there would even be a formal adjudication." ,

D Id. at 717. In its decision, the Appeal Board found the action H

L '. without basis and improper, "given the incipient stage of the l proceeding -- before it was clear who the parties would be,-what

their concerns were, and, indeed whether any proceeding'was even l.

I warranted." Id at 717-18.U In distinguishing other cases, l:

g; the Appeal Board noted <

P c The critical fact-in those cases.. . ,,

however, is that the starting line-ups had . '

E been announced (i.e., the cartv-status of'the-participants had been determined), and the-game was well under way (i.e., the issues to-l t

.L U The Appeal Board reached this conclusion even while l,

l observing that the Rockwell proceeding was being conducted under

p. "Subpart L rules [which] do vest a presiding officer with substantial discretion and have ' enhance [d] the role of "

the presiding officer as a technical fact finder' . . . . 30 NRC at 718.

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, lus litigated had been defined by;the- .

litigants:and'the proceedings were at the summary disposition or evidentiary hearing stage).

Idi at 719' (citations' omitted; emphasis added) .U i As the preceding cases illustrate -- and consistent-with the-terms of the Establishment Order -- up until a hearing-

- has~been.found appropriate and parties have been admitted, a Board's jurisdiction is limited to ruling on petitions to intervene. With the dismissal of-all petitions,.the Board's jurisdiction isLat an end.U III. SAFETY ISSUES In addition to the points made in the Staff Respanse, pp. 5-11, FPL would note the following with: respect to contention.

u The Rockwell-Appeal. Board distinguished procoedings convened-to resolve Commission-specified= issues, where broader scope is allowed a licensing board to pose questions and solicit information, from proceedings which depend-on the active

. participation of parties. Id , p. 719 at fn. 11. The' instant case falls into the latter category. With the dismissal-of NEAP's petition, there are no longer any parties participating in this. proceeding and, of course, there are no Commission-specified.

issues.

U Limited-jurisdiction also prevents the occurrence of an incongruous situation whereby substantive disposition might be made of_the contentions of an intervenor, such as NEAP, which could possibly (however unlikely) be returned to the Licensing Board for full disposition based on an appeal and the reversal of a dismissal.

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14 . _ Maintenance of the reactor in Mode 3 (hot standby) and fully

~ borated to 1% delta-k/k at 200'F constitutes reactor operation.

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under safe and stable conditions. As described on~page 28 of the

" Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No. 137 to Facility Operating License:No.

DPR-31 and Amendment No. 132 to Facility Operating License No.

DPR-41, Florida Power and Light Company Turkey Point Unit'Nos. 3 and 4, Docket Nos. 50-250 and 50-251" ("SE") in. connection with Contention 11, Operational Modes are prescribed in technica]

specifications -- based on safety analysis --.such that permissible combinations of equipment, reactor power, and coolant conditions are safe. In particular, the plant has.been designed-to fully accommodate accidents and transients which might occur while the reactor is being maintained in the hot standby and borated conditions prescribed in the Revised Technical Specifications. See generally, SE, p. 28.

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IV. CONCLUSION

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For the foregoing reasons, the Licensing Board should! .;

not undertake sua sponte review. -

O Respectfully submitted, I

i co-counsel By: , M. /9

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JohniT. Butler,-Esq. Parold F. Reis Steel,: Hector &~ Davis Michael A. Bauser-  ;

4000 Southeast Financial Center i Miami, FL 33131-2398 Newman &1Holtzinger,1P.C.  ; 'l 1615-L Street", N.W .' '

W Suite ~1000: M Washington, D.C. 20036-l 202/955-6600 l

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s Attorneys for Florida Power & Light company Dates . September 14, 1990 l ..

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UNITED STATES OF AMERICA ,

NUCLEAR REGULRTORY COMMISSION.

% SEP 17 A10:07 - I REFORE THE ATOMIC SAFETY AND LICEMSING BOARD OFifCE Or SECRflARY 00CK[11NG A SEtiVICI.

DRANCH

)

In the Matter of ) Docket Nos. 50-250 OLA-5  ;

) 50-251 OLA-5 FLORIDA POWER & LIGHT COMPANY ) :t'

)

(Turkey Point Plant, Units 3 ) (Technical. Specifications and 4) ) Replacement)

)-

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Memorandum and Order.(Mation to Dismiss)," dated September 14,.

1990,-were served on the persons designated below by deposit in-the United States mail, first-class postage paid, on this date.

Administrative Judge Peter,B. Bloch, Chairman Atomic Safety and Licensing Board '

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge j '

Dr. George'C. Anderson

'7719 Ridge Drive, N.E.

Seattle, Washington 98115

-Administrative Judge Elizabeth B. Johnson ,

Oak Ridge National Laboratory P.O. Box'2008 Bethel valley Road, Building 3500 Mail Stop 6010 Oak Ridge, TN 37831 -

Atomic-Safety and Licensing Board Panel Adjudicatory File U.S. Nuclear ~ Regulatory Commission t Washington, D.C. 20555 l

Atomic Safety and Licensing Appeal Board Panel ,

Adjudicatory File ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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(2) p is Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Chief Docketing and Service Section (Original plus two copies)

Janice E. Moore, Esquire Patricia A. Jehle, Esquire-Office of the General Counsel.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stewart Ebneter Regional Administrator U.S.. Nuclear Regulatory Commission, Region II 101 Marietta Street, N.W. #2900 Atlanta, Georgia 30323

? John ~T. Butler, Esquire Steel, Hector & Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Date: September 14, 1990

. GMbes>t Miciael A. Bauser Newman & I!oltzinger, P.C. #

1615 L Street, N.W.

Suite 1000 Washington, D.C. 20036 (202) 955-6600 1