ML20062N028
| ML20062N028 | |
| Person / Time | |
|---|---|
| Site: | Clinch River |
| Issue date: | 08/19/1982 |
| From: | Edgar G, Luck W ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8208200283 | |
| Download: ML20062N028 (30) | |
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U 5 h.- u "Eh tM 19 P2 56' UNITED STATES OF AMERICA , ,_,,_____,.;
NUCLEAR REGULATORY COMMISSION _
BEFORE THE ,
ATOMIC SAFETY AND LICENSING APPEAL BOARD 4
)
In the Matter of )
) i UNITED STATES DEPARTMENT OF ENERGY )
PROJECT MANAGEMENT CORPORATION ) ' Docket No. 50-537 '
TENNESSEE VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor )
- Plant) )
)
APPLICANTS' RESPONSE TO NATURAL RESOURCES DEFENSE COUNCIL, INC., AND F THE SIERRA CLUB PETITION FOR DIRECTED CERTIFICATION George L. Edgar Attorney for Project Management Corporation I
l William D. Luck j Attorney for United
. States Department of Energy August 19, 1982
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~W' 8208200283 820819 - es PDR ADOCK 05000537 .
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TABLE OF AUTHORITIES Page CASES:
Allied-General Nuclear Services (Barnwell Nuclear Fuel Plan'. Separations Facility), ALAB-296, 2 NRC 671 (19 75 ) . . . . . . . . . 20 Boston Edison Co. (Pilgrim Nuclear Generating Sation, Unit 2) , ALAB-20 9, 1 NRC 411 (1975).............................. 12 Catlan v. United States, 324 U.S.
229(1945).................................... 12 Commonwealth Edison Co. (Carroll County
- Site, 12 NRC 18 (1980)........................ 17 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-382, 5 NRC 603(1977).................................... 13 Natural Resources Defense Council, Inc.
- v. Nuclear Regulatory Commission, 539 F.2d 834 (D.C Cir. 1976)................. 17 Nuclear Fuel Services, Inc. (West Valley i Reprocessing Plant), CLI-75-4, 1 NRC 2 73 ( 1 9 75 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 .
Pacific Gas & Electric Co. (Diablo
- Canyon Nuclear Power Plant, Units 1 & 2) , ALAB 514, 8 NRC 6 97 (1978) . . . . . . . . . . . . 13 Potomac Electric Power Co. (Douglas Point), ALAB-277, 1 NRC 53 9 (1975) . . . . . . . . . . . 17, 18, 20 Public Service Company of Indiana, Inc.
(Marble Hill Nuclear Generating
, Station, Units 1 & 2), ALAB-405, 5 l
N RC 1 1 90 ( 1 9 7 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 , 17, 20 Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2),
ALAB-2 71, 1 NRC 4 78 (19 75 ) . . . . . . . . . . . . . . . . . . . . 12 i
_ ii -
Page Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 53 3 (1980) . . . . . . . . . . 13 United States Energy Research and Development (Clinch, River Breeder Reactor Plant),
CLI 18, 4 NRC 6 7 (19 76) . . . . . . . . . . . . . . . . . . . . 13 REGULATIONS:
10 C.F.R. Part 2, Appendix A....................... 17 10 C.F.R. Part 51.................................. 20 10 C.F.R. Part 100.11a............................. 9, 20 10 C.F.R. S 2 .101 ( a - 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 10 C.F.R. SS 2.600-2.606........................... 20 10 C.F.R. S 2.730(f)............................... 11 10 C.F.R. S 2.761a................................. l'9 10 C.F.R. S 50.10(e)............................... 5 10 C.F.R. S 50.10 (e ) (2 ) (ii) . . . . . . . . . . . . . . . . . . . . . . . . 20 10 C.F.R. S 50. 3 5 (a ) (4) (ii) . . . . . . . . . . . . . . . . . . . . . . . . 20 10 C.F.R. S 50.48.................................. 17 10 C.F.R. S 51.52.................................. 19 MISCELLANEOUS:
3 9 Fed. Reg. 14506 (April 24, 1 9 74 ) . . . . . . . . . . . . . . . . 19 42 U.S.C. 4321, National Environmental Policy Act.................................... 20-t NUREG 0786........................................ 5, 7, 9 -
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I TABLE OF CONTENTS Page I. STATEMENT OF FACTS............................ 1 II. ARGUMENT...................................... 11 A. INTERVENORS' PETITION FOR REVIEW OF AN :
INTERl0CUTORY EVIDENTIARY RULING IS WHOLLY IMPR0PER................................. 11 B. NRDC'S PETITION SHOULD BE DISMISSED FOR FAILURE TO SATISFY THE STANDARDS '
APPLICABLE TO A STAY..................... 16
- 1. NRDC Has Failed to Establish a Strong Likelihood of Success on the Merits........................... 17
- 2. NRDC Will Not Be Irreparably Injured.............................. 21
- 3. Delay in Hearings Will Adversely Affect The Applicants................ 21 .
- 4. Delay in Commencement of Hearings i Is Against the Publi.r. Interest....... 22 III. CONCLUSION.................................... 23 l
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8/19/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of )
UNITED STATES DEPARTMENT OF ENERGY )
PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537 TENNESSEE VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor )
Plant) )
)
APPLICANTS' RESPONSE TO NATURAL RESOURCES DEFENSE COUNCIL, INC. AND THE SIERRA CLUB PETITION FOR DIRECTED CERTIFICATION i t
The United States Department of Energy and Project Management Corporation, acting for themselves and on behalf of the Tennessee Valley Authority (the Applicants), hereby respond to the Natural Resources Defense Council, Inc.
("NRDC") and the Sierra Club Petition for Directed ,
Certification, dated August 9, 1982.
I. STATEMENT OF FACTS The application for the Clinch River Breeder Reactor Plant Project was. docketed by the Nuclear Regulatory Commission (NRC) on April 11, 1975. Pursuant to a notice published in the Federal Register, a Special Prehearing
Conference was held on September 16, 1975, which resulted in an Order by the Atomic Safety and Licensing Board ("the Board") dated October 9, 1 975. That Order, inter alia, admitted NRDC as a party and established a schedule for discovery and related matters for the proceedings. From that point through April of 1977, the proceedings were actively engaged.
The NRC Staff issued its Draft Environmental Statement (DES) in February of 1976, its Final Environmental Statement (FES) in February of 1977, and its Site Suitabil-ity Report (SSR) in March of 1977. The FES (NUREG 0139) concluded that the action called for was construction of the CRBRP, and the SSR concluded that the Clinch River site was suitable for a reactor of the general size and type described in the application.
During the time period between October of 1975 and March of 1977, NRDC engaged in discovery which was, to l
Applicants' knowledge, unprecedented in its volume. NRDC i
filed fif teen (15) sets of interrogatories, seven (7) sets of requests for admissions, and four (4) requests for production of documents against the Applicants. The Applicants made more than fifty-thousand (50,000) pages of l
documents available for inspection and copying.
l NRDC filed twenty-two (22) sets of interroga-i tories, seven (7) requests for admissions, and at least
three (3) requests for production of documents against the NRC Staff. NRDC also took the depositions of two NRC Staff witnesses.
Altogether, NRDC filed more than three thousand (3,000) individual interrogatories and two hundred fifty (250) individual requests for admissions against the Applicants and NRC Staff. As of March, 1977, it was evident that NRDC had been afforded an abundant opportunity to prepare for hearings. On March 28, 1977, the Atomic Safety and Licensing Board issued an Order secting commencement of 4
hearings in Oak Ridge, Tennessee, for June 14, 1977, which hearings would run in continuous session until completion.
- On April 22, 1977, in response to the previous Administration's policy in regard to CRBRP, the Energy Research and Development Administration (ERDA) filed a l
i Motion to Suspend the proceedings, and on April 25, 1977, l the Board granted the Motion. Thereafter, in November of 1977 the NRC Staff suspended its review of the applica- ,
tion. In the ensuing four-year period, the project continued design and procurement activities, and updated the Prelitainary Safety Analys'is Report (PSAR) as necessary to l reflect those activities. There was, however, essentially l
l no interaction between the-Applicants and NRC-throughout
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this period.
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In September of 1981, pursuant to the present Administration's policy, the Applicants and NRC Staff reinitiated interactions in regard to the application. On January 11, 1982, the Applicants filed a motion to lift the suspension of hearings, and on January 19, 1982, the Board granted this motion and issued a Notice of Prehearing Conference. On February 9-10, 1982, the Board held a pre-hearing conference, and on February 11, 1982, issued an Order establishing a schedule for all activities necessary for commencement of evidentiary hearings on August 23, 1982.
Pursuant to the Board's February 11 Order, updating of all previous discovery responses and discovery on new matters and/or contentions commenced immediately.
The Applicants and NRC Staff completed updating their voluminous responses to NRDC's 1975-1977 discovery by the April 30, 1982 deadline. In the meantime, and up through the close of discovery on. June 18, 1982, NRDC filed four (4) additional sets of interrogatories, four (4) sets of requests for admissions, and three (3) requests for produc-tion of documents against both_the Applicants and NRC Staff. NRDC also took the depositions of five (5) persons from the NdC Staff, and eleven persons from the Applicants.
On June 11, 1982, the NRC Staff issued its updated Site Suitability Report which concluded _that the Clinch River site was suitable for a reactor of the general size
and type described in the application from the standpoint of radiological health and safety (NUREG-0786). On July 13, 1977, the Advisory Committee on Reactor Safeguards (ACRS) issued a letter which supported the NRC Staff's site suitability conclusion. On July 19, 1982, the Board issued a Notice of Evidentiary Hearing and Prehearing Conference, which ordered that hearings would commence in Oak Ridge on August 23, 1982 and continue until completion of taking evidence on the issues and contentions admitted for the purpose of a limited work authorization (LWA-1) hearing pursuant to 10 C.F.R. S 50.10 (e) .
On July 19, 1982, the NRC Staff issued and served upon all parties to the proceedings its update to the 1977 FES. In issuing that document, the NRC Staff determined that it should be issued as a draft Supplement to the 1977 FES, and that it should be recirculated for public comment before issuance as a final Supplement.
Thereafter, pursuant to the Board's February 11, i
1982 Prehearing Conference Order, both Applicants and the l NRC Staff contacted NRDC in an effort to confer about the need for discovery and revised contentions, if any, on new-matters first raised in the Supplement. The framework established by the Board's February 11, 1982 Prehearing Conference Order contemplated that: 1) the parties should so confer, and any disagreements would be resolved at a l
9 prehearing meeting of counsel within seven (7) days after the update, and: 2) all new matter discovery would be completed by August 6, 1982. NRDC advised both Applicants and the NRC Staff that, in their view, recirculation of the Supplement had invalidated the schedule established by the
, Board's February 11, 1982 Order, and that they intended to file a motion seeking an extension of the schedule.
As a result of this, and the fast-approaching August 6 discovery deadline and August 23 date for hearing commencement, the Applicants filed their Motion to Enforce the Schedule, dated July 26, 1982. In that Motion the Applicants showed that there was no legal bar to: 1) all parties presenting evidence on all radiological site suit-ability issues; 2) Applicants and NRDC presenting evidence on all radiological site suitability and environmental
, issues; 3) the NRC Staff presenting evidence on certain f
l environmental issues; and 4) the NRC Staff presenting the balance of their evidence on the remaining environmental issues in a second phase of hearings to be conducted after issuance of the final Supplement. The Applicants' Motion urged that " bifurcated" hearings for the purpose of taking evidence on certain radiological site suitability and environmental issues would be consistent with NRC precedent, -
without prejudice to any party, and in the public interest.
On July 27, 1982, NRDC filed its Motion to Reschedule Hearings, which is the subject of its August 9, ,
1982 Petition for Directed Certification to this Appeal Board. NRDC's Motion argued that all hearings were legally barred pending issuance of a final FES Supplement. On August 2, 1982, the Board convened a prehearing meeting of the parties to consider the Applicants' and NRDC's pending motions, and any pending discovery matters. After hearing extensive argument from all parties, the Board issued an Order, dated August 5, 1982, which resolved all questions concerning the scope and scheduling of the upcoming LWA-1 hearings as follows:
a) The evidentiary hearing would commence as
- scheduled on August 23, 1982, and would be limited to contentions related to radiological site l
l suitability. (Board Order at 4). The scope of the hearings would be defined by the SSR (NUREG 0786) (Board Order at 5),
b) Contentions related to NEPA and the Final FES i Supplement would await hearing until after issuance of the Final _FES Supplement by the NRC Staff (Board Order at 5).
c) Intervenors request to extend the date for pre-filed written testimony on radiological site-suit- ,
ability-issues until August 16, 1982 was granted (Board Order at 7).
b d) The parties would confer and make recommendations for a discovery schedule and commencement of the second phase of hearings on the Final Supplement to the FES.
The Board also indicated that no party would be prohibited from putting forth testimony and evidence with respect to the FES at the time of environmental or second phase hearings, on the grounds that they could have been produced at the hearings on site suitability issues (Board order at 5-6).
The Board's ruling postponed all matters related to the FES until the second phase of hearings, and denied i the Applicants' Motion to Enforce the Schedule as follows:
a) The Applicants urged that they and NRDC present testimony ea all issues, including both radiolog-ical site suitability and environmental issues.
The Board limited the testimony to radiological site suitability issues only.
b) The Applicants urged that all parties, including the NRC Staff, present evidence on environmental issues not significantly'affected by the FES supplement: 1) Contentions 2 and 3 (portions) --
environmental effects of accidents; 2) Contentions.
l Sa) and 7c) -- alternative sites; 3) Contentions 7a) and b) -- design alternatives; 4) Contention 8
_9_
-- decommissioning; 5) Contentions 11b) and c) --
genetic and somatic effects of operation in accordance with existing NRC regulations. The Board deferred all testimony on all of these issues to the second phase of hearings.
As a result of the Board's Order, the scope of the upcoming hearings was narrowed to the following:
a) Contentions la), 2a)-e), 2f), g) and h), and 3b),
c) and d) -- 1) whether hypothetical core disrup-4 tive accidents (HCDA's) should be design basis accidents (DBA's); 2) whether the site suitabil-ity source term (SSST) recommended by the NRC Staff for site suitability analysis pursuant to 10 C.F.R. S 100.11a) envelops the consequences of DBA's; 3) whether the analyses using the SSST meet the 10 C.F.R. Part 100.11a) dose guidelines; 1
- 4) whether it is feasible to mitigate the conse-quences of a spectrum of accidents beyond the design basis and provide the required containment system protection. (See SSR, NUREG-0786 at II-6 l
l II-19) .
l b) Contentions 2e) and 11d) -- Whether the dose guideline values recommended by the NRC Staff for 10 C.F.R. $ 100.11 a) site suitability evaluation I
are adequate. (See_SSR, NUREG-0786 at III- 9) .
-to_
c) Contention 5b) -- Whether, given the presence of other facilities in the vicinity of the Clinch River Site (the Oak Ridge Gaseous Diffusion Plant, Y-12, and the Oak Ridge National Laboratory), the potential effects of a Clinch River accident on national security and national energy supply would affect conclusions as to site suitability. (SSR at III-6).
On August 11, 1982, the Applicants were advised by the NRC Staff that the Board's availability would be such as to limit hearings to the period between August 23 through August 27, 1982. As a result of this, and the Staffs' and Applicants' respective reviews of the scope of testimony concerning Contention 5b) and its potential relationship to environmental matters, the Staff advised the Board on August 12, 1982 that both Applicants and Staff would defer filing of Contention 5b) testimony until the second phase of hear-ings. Consequently, the August 23-27 hearings will be limited to taking evidence on the site suitability issues embodied in NRDC Contentions 1, 2, and 3, and contention 2e)
(along with its particularizing Contention, 11d)). The i
Board has not advised the parties as to whether any addi-
! tional sessions may be scheduled if this taking of evidence is not completed by August 27.
1 I
- 11 _
II. ARGUMENT t
NRDC's Petition must first be considered in light of the extensive opportunity which they have been afforded to prepare for hearings. Second, it must be considered in light of the Board's exercise of its discretion to limit the scope of the hearings to radiological site suitability issues which are independent of the FES Supplement. Third, it must be considered in light of the Board's determination that hearings would be held during the limited period between August 23-27, and the Board's grant of NRDC's '
request for an extension of time until August 16 in which to file its radiological site suitablity testimony. In effect, by advancing claims of irreparable impact, NRDC is asking the Appeal Board for a stay of these hearings pending review. In these circumstances, the Appeal Board should:
- 1) dismiss the petition as an improper interlocutory appeal; and 2) dismiss the petition for failure to satisfy'the applicable standards for a stay pending review.
A. INTERVENORs' PETITION FOR REVIEW OF AN INTER-LOCUTORY EVIDENTIARY RULING IS WHOLLY IMPROPER The Nuclear Regulatory Commission has a long-standing policy, reflected in its regulations, against interlocutory review of Licensing Board orders and rulings. 10 C.F.R. 5 2.730(f), for example, provides that "No interlocutory appeal may be taken to the Commission from
a ruling of the presiding officer." The basis for this rule is the avoidance of " piecemeal litigation," and the delays 1
which inevitably result therefrom. / As the Appeal Board stated in Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2) , ALAB-20 9, 1 NRC 411, 413 (1975):
It has long been determined, all things considered, that proceedings can be conducted most efficiently if the right to obtain appellate review of inter-locutory orders is deferred to an appeal at the end of the case. The Commis-sion's Rules of Practice so provide and we must follow them.
Similarly in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483
, (1975) the Appeal Board stated:
The general policy of the Commission does not favor the singling out of an issue for appellate examination during the continued pendency of the trial proceeding in which that issue came to the fore.
! lj See Catlan v. United States, 324 U.S. 229, 233 (1945):
The foundation of this policy is not in merely technical conceptions of finality. It is one against piecemeal litigation. The case is not to be sent up in fragments. . - . .
Reasons other than conservation of judicial energy sustain the limitation. One is elimination of delays caused by interlocutory appeals.
13 -
Although the Commission may consider interlocutory -
2 matters, it has chosen to do so "most sparingly'" / and only 3
in " exceptional circumstances.'~/ Because of the extra-ordinary nature of interlocutory review, a party seeking such review has a particularly heavy burden to surmount.
Interlocutory review is appropriate only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irre-parable impact which as a practical matter, could not be alleviated by later appeal or (2) affected the basic struc-ture of the proceeding in a nervasive or unusual manner.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 4/
1192 (1977) /-
2/ Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 697, 698 (1978).
--3/ Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-382, 5 NRC 603 (1977) .
4/ In their Petition, Intervenors apparently argue that previous decisions have established that interlocutory
, review would be undertaken. In this regard, consider l both Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2) ALAB-405, 5 NRC 1190, 1192 (1977) and Public Service Electric and Gas Company (Salem Nuclear Generating
( Station Unit 1), ALAB-588,11 NRC 533, 536 (1980). In l both cases the Appeal Board refused to entertain l
interlocutory review. United States Energy Research l and Development Administration (Clinch River Breeder i Reactor Plant), CLI-76-18, 4 NRC 67 (1976) is likewise of no benefit to NRDC here. In that decision, the Commission conducted a sua sponte review of a Board ruling because of "important issues of law and policy",
Continued i
Neither circumstance is present in this case.
First, NRDC does not need interlocutory review here to avoid the threat of "immediate and serious irreparable impact."
The Board has ruled merely that evidence should be taken on the radiological site suitability issues encompassed within NRDC's contentions during a five-day session of hearings.
No decision will be made until after the second phase of hearings, and no evidence with respect to the FES will be precluded in the second phase on the ground that it could have been introduced in the first phase. The evidence to be taken is necessary to an LWA-1 decision, and if any new relevant information emerges as a result of public comments on the FES Supplement, there will be no bar to introduction l in the second phase of hearings.5 /
l 1.e., the relationship of the NRC with ERDA, and issues which the Commission believed might " recur in future licensing of ERDA facilities." Id. at 76. In con-l trast, the issue raised by Interve'nors' Petition deals with a matter of scope and scheduling, rather than law and policy. Furthermore, in its 1976 decision, the l
' Commission noted that the decision of the Licensing Board itself " threatened substantial delay for the proceeding, delay which could not be recaptured by later correction of error." Id. In the present situation, however, as Interv'enors must concede, inter-l
' lucutory review would result in delaying, rather than expediting, the course of the proceedings.
-5/ In any event, this circumstance seems particularly unlikely for two reasons. First, the site suitability issues are independent of the FES. Second, since NRDC was obligated during discovery to disclose all of its
' information relevant to its contentions, and to season-ably amend its responses, no new information can be l -expected from NRDC during the comment period on the FES i Supplement.
I
In reality, NRDC's position carries with it a undercurrent of doubt about its ability and preparedness for the long-awaited taking of evidence. NRDC has, however, asked for and been granted an extension of time in which to file its radiological site suitability testimony, and it cannot now complain of any prejudice, much less irreparable impact, if the hearings proceed as scheduled.
Second, it is inconceivable that the Board's ruling would affect the basic structure of the proceeding "in a pervasive or unusual manner." The Board simply 4
exercised its discretion to establish the scope of a brief initial phase of hearings on radiological site suitability issues. No delay or expansion of issues will result, and l NRDC now has a lesser burden than it had before the Board's-ruling. Indeed, proceeding to hearing now will reduce NRDC's burden for the second phase of hearings. Since the l
l NRC Staff anticipates completion of a final FES Supplement in November, NRDC will have a substantial additional period l of time in which to prepare for the second phase of hearings.
There is nothing unusual about proceeding to take I evidence on issues that are separable from and independent l of FES-related issues.6/ It would, however, be highly l
l l
l 6/ See discussion in Section 11 B.1 below.
J unusual if the Appeal Board reviewed a discretionary Board ruling concerning the scope and schedule for hearings.
Accordingly, the Appeal Board should dismiss the Petition.
B. NRDC'S PETITION SHOULD BE DISMISSED FOR FAILURE TO SATISFY THE STANDARDS APPLICABLE TO A STAY NRDC seeks immediate review of the Board's ruling establishing August 23, 1982 as the date for commencement of hearings. The concomitant result is that NRDC is effec-tively seeking a stay of the hearings. It has made no showing at all to justify a stay.
A party seeking a stay has a particularly heavy burden to sustain under the applicable NRC regulation, 10 C.F.R. 2.788(e). That section provides in pertinent part:
4 In determining whether to grant or deny an application for a stay, the Commis-sion . . . will consider
- 1. Whether the moving party has made a strong showing that it is likely to .
j prevail on the merits; 1
i
- 2. Whether the party will be irre-parably injured unless a stay is granted;
- 3. Whether the granting of a stay would harm other parties;
( 4. Where the public interest lies.
l In light of the extraordinary nature of a stay, a i
party, in meeting its burden under these four factors, l
cannot. rely on conclusory allegations, but must demonstrate l
with particularity its entitlement to a stay. Fire Protec-tion For Operating Nuclear Power Plants (10 C.F.R. S 50.48),
CLI 81-1, 13 NRC 788 (1981). NRDC has not even attempted to make a case under the four factors, and for that reason its petition must be summarily dismissed.
- 1. NRDC Has Failed to Establish a Strong Likelihood of Success on the Merits There is no question that the Licensing Board may conduct evidentiary hearings on selected issues despite the fact that other issues might not be ready for considera-tion. See, e.g., Natural Resources Defense Council, Inc. v.
Nuclear Regulatory Comm'n., 539 F.2d 834 (D.C. Cir. 1976);
Commonwealth Edison Co. (Carroll County Site), 12 NRC 18 (1980); Public Service Co. of Indiana (Marble Hill) ALAB-371, 5 NRC 409 (1977); Potomac Electric Power Co. (Douglas Point), ALAB-277, 1 NRC 539 (1975). Commission policy clearly indicates that "the hearing may be divided into l
segments to permit consideration of discrete areas. . . ."
10 C.F.R. Part 2, App. A.
Commission policy not only permits, but encour-ages, early hearings on particular issues when such con-sideration will avoid delaying the overall licensing process. " Fairness to all parties . . . and the obligation-of administrative agencies to conduct their functions with-
- (
P efficiency and economy, require that the Commission adjudi-cation be conducted without unnecessary delay." Nuc,l_ea r Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975) (quoting from 10 C.F.R. Part 2, App. A).
As the Appeal Board noted in Douglas Point., supra, 1 NRC at 544, conducting early hearings on some issues would allow early determination of potential problem areas related to issuance of a license or permit. If problems can be identified earlier in the process, mitigation can take place earlier in the process resulting in time and money savings to the Applicant, the Board, and the Intervenors. And, if further analysis is required, the Board can provi,de prompt direction as to the nature and scope of such analysis.
The Appeal Board in Douglas Point identified the relevant factors which should be taken into account in
- deciding whether hearings should be held on specific issues.
l Principal among them are: (1) the degree of likelihood that~any early findings on the issue (s) would retain their validity; (2) the advantage, if any, to the public interest and to the litigants in having an early, if not t
necessarily conclusive ~, resolution of the issue (c); and (3) the extent to which the hearing of the issue (s) at an i
early stage would, particularly if the issue (s) were later reopened because of supervening developments, occasion prejudice to one or more of the liti-gants. 1 NRC at 547.
l l
_ 19 _
In this case, the site suitability issues raised
[
by NRDC's contentions 1, 2, and 3 are fundamental threshold issues affecting the licensability of the CRBRP as presently designed. An early airing of those issues is vital to the Applicants, and likewise should be important to the Inter-venors. Since these issues are independent of the FES, there is every likelihood that the evidence taken would retain its validity after completion of the FES Supple-6/
ment.- Even if supervening developments in the FES recirculation gave rise to new information, there would be no prejudice to any litigant. The Board's Order does not restrict the parties in any way from introducing matters related to the FES Supplement.
~6/ Since the Petition does not meet the threshold stan-dards for interlocutory review or a stay, the Appeal Board need not even reach NRDC's argument concerning the Board's interpretation of 10 C.F.R. S 2.761a. This argument, however, has two basic flaws. First, the issues set for hearing have no dependence on the FES Supplement, and since there is already an FES for the CRBRP, it makes no sense to read the regulation as prohibiting hearings on site suitability issues. This applies with particular force where, as NRDC concedes, the underlying policy of the 10 C.F.R. 5 2.761a regula-tion is to reduce the time required for licensing. 39 Fed. Reg. 14506 (April 24,1974). Second, even if environmental issues were involved, reading 10 C.F.R. 2.761a as a prohibition on hearings renders the provi-sions of 10 C.F.R. S 51.52 a) a nullity. ~Although the language of the regulation is not a model of clarity, its meaning is clear. While the Staff may not present its case on issues related to the FES Supplement, any party may present its case on those matters, as well as radiological health and safety matters, prior to issuance of the FES Supplement.
There is simply no authority which bars considera-tion of site suitability issues prior to issuance of the FES Supplement. Where hearings involve site suitability issues, which relate to matters of radiological health and safety-7/
and are independent of the FES, early hearings on those 8
issues can be scheduled in the Board's discretion. / See e.g., Douglas Point, supra (early hearing on radiological health and safety and site suitability (Part 100) issues):
Marble Hill, supra (licensing board should consider whether some issues could be considered independently of issue on appeal); Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility) ALAB-296, 2 NRC 671 9
(1975). /
7/ See 10 C.F.R. S 50.10(e)(2)(ii); 10 C.F.R.
T 3D.35(a)(4)(ii); 10 C.F.R. 9 100.11 (a) .
~~8/ Even if environmental issues were involved, those.
environmental issues that are independent of the FES could be heard. As the Appeal Board stated in Barnwell, infra, "nothing either in NEPA or in the Commission's rules . . . would automatically preclude the hearing of all environmental issues while the impact statement is being redone as to some." 2 NRC '
at 681.
~9/ Furthermore, the Commission's regulations, 10 C.F.R.
S S 2.101 (a-1 ) , 2.600-2.606,. allow consideration and partial decisions on site suitability issues even before review of environmental issues required by the National Environmental Policy Act (NEPA), 42'U.S.C.
4321-4335, and by 10 C.F.R. Part 51.
Accordingly, NRDC has failed to make the requisite showing of a strong likelihood of success on the merits and its Petition must be denied.
- 2. NRDC Will Not Be Irreparably Injured As indicated in Section IIA. above, NRDC will not be prejudiced, in any way, much less irreparably injured if the hearings proceed as scheduled. In deferring all environmental issues, the Board has left open NRDC's oppor-tunity to present all evidence related to the FES Supplement
. at the second phase of hearings. In addition, NRDC will not be foreclosed from presenting such evidence on the ground that it could have been presented during the site suita-bility hearings. The Board's ruling imposes no unreasonable burden upon NRDC. In fact, it merely requires NRDC to avail itself of the knowledge gained through its unprecedented opportunity for discovery, and state its site suitability case, if any, on the merits. No irreparable injury has been
! shown and none is even remotely threatened.
i
- 3. Delay in Hearings Will Adversely Affect The Applicants i The Applicants believe that the issues raised in this brief period of hearings are the most fundamental issues affecting CRBRP as presently designed. A prompt ventilation of these issues will-enable the Applicants and r
l all parties to test their evidence, and if it is found
lacking in any way, to utilize productively the approxi- '
mately two month time period between the end of the first
[
session of hearings and completion of the FES Supplement to develop additional evidence. This, in turn, would lead to a better and earlier resolution of the issues in the ultimate Board decision. This likewise will minimize the design impact, if any, upon the Applicants, and will facilitate an orderly resolution of any remaining issues in the ongoing NRC staff technical review. Moreover, further delay in commencing the first phase of hearings can only serve to complicate and burden the second phase of hearings and result in delays in the ultimate decision. Inasmuch as NRDC's Petition does not even address the adverse effect !
which further delays will have on the Applicants, it must'be dismissed.
- 4. Delay in Commencement of Hearings Is Against the Public Interest As indicated in Section A above, there are strong >
public policy considerations militating against inter-locutory review. Moreover, as indicated in Section B1.
above, prompt resolution of site suitability issues which are independent of the FES is consistent with established Commission policy and in the public interest.
As indicated in Section B3. above, a delay in commencement of hearings can only serve to delay and
complicate the ultimate Board decision on CRBRP. The Applicants submit that the Presidential, Congressional and Department of Energy policies in favor of expeditious 10 project completion are important considerations here.-~/ In its recent decision to grant the Applicants ' Section 50.12 request, the Commission recognized the policies in favor of expeditious project completion and against further delay.
Accordingly, grant of NRDC's Petition would contravene the public interest.
III. CONCLUSION For the reasons stated above, the Appeal Board should dismiss NRDC's Petition for Directed Certification.
Respectfully submitted,
/ v1W/k George L. Edgar Attorney for Project Management Corporation
/ :
a ' / b [u.'[ Milliam D. Luck Attorney'for United States Department of Energy DATED: August 19, 1982 10/
~~- See Applicants ' Legal Memorandum in Support of Request to Conduct Site Preparation Activities, July 1, 1982 at 15-19.
4 UNITED STATES OF AMERICA t NUCLEAR REGOLATORY COMMISSION , j BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of ) ;
)
UNITED STATES DEPARTMENT OF ENERGY )
)
! PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537 '
)
TENNESSEE VALLEY AUTHORITY )
)
(Clinch River Breeder Reactor Plant) )
)
CERTIFICATE OF SERVICE Service has been effected cn this date by personal delivery or first-class mail to the following:
*** Atomic Safety & Licensing Appeal Board 4350 East-West Highway Bethesda, Maryland (6 copies by hand delivery) i
*** Marshall E. Miller, Esquire Chairman .
Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington,-D.C. 20545
*** Ruthanne G. Miller , Esq.
Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission 1 Washington, D.C. 20545 t
. _ , . . , _ - - - . . . ~ ,.
Dr. Cadet H. Hand, Jr. ; Director Bodega Marine Laboratory University of California P.O. Box 247 Bodega Bay, California 94923
*** Mr. Gustave A. Linenberger Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20545 ,
**** Daniel Swanson, Esquire Stuart Treby, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20545 (2 copies)
- Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20545
- Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20545 (3 copies)
William M. Leech, Jr., Attorney General William B. Hubbard, Chief Deputy Attorney General I Lee Breckenridge, Assistant Attorney General . State of Tennessee Office of the Attorney General i 450 James Robertson Parkway Hashville, Tennessee 37219 Oak Ridge Public Library Civic Center l Oak Ridge, Tennessee 37820 L Herbert S. Sanger, Jr... Esquire Lewis E. Wallace, Esquire W. Walter LaRoche, Esquire i James F. Burger, Esquire _ l Edward J. Vigluicci, Esquire Office of the General Counsel Tennessee Valley Authority 400 Commerce Avenue Knoxville, Tennessee 37902 (2 copies) l l
~
** Dr. Thomas Cochran, Esquire Barbara A. Finamore, Esquire Natural Resources Defense Council 1725 Eye Street, N.W., Suite 600 Washington, D.C. 20006 (2 copies)
Ellyn R. Weiss, Esquire Harmon & Weiss 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Lawson McGhee Public Library 500 West Church Street Knoxville, Tennessee 37902 William E. Lantrip, Esquire Attorney for the City of Oak Ridge Municipal Building P.O. Box 1 Oak Ridge, Tennessee 37830 Leon Silverstrom, Esquire Warren E. Bergholz, Jr., Esquire U.S. Department of Energy 1000 Independence Avenue, S.U. Room 6-B-256, Forrestal Building ' Washington, D.C. 20585 (2 copies) Eldon V. C. Greenberg Tuttle & Taylor 1901 L Street, N.W., Suite 805 Washington, D.C. 20036 2 Commissioner James Cotham , Tennessee Department of Economic and Community Development Andrew Jackson Building, Suite 1007 Nashville, Tennessee 37219 4 y!"W - w N George (L/ Edgar ff Attorney for ProjeK Management Corporation DATED: August 19, 1982
- Hand delivery to 1717 "H" Street, N.W., Washington, D.C.
** Hand delivery to indicated address.
*** Hand delivery to 4350 East-West Highway, Bethesda, Md.
**** Hand delivery to Maryland National Bank Building, Bethesda, Md.
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