ML20063C928

Motion for Clarification,Or in Alternative,Petition for Reconsideration of Aslab 820811 Memorandum & Order ALAB-686 Re Application of Immediate Effectiveness Regulation. Certificate of Svc Encl

ML20063C928
Person / Time
Site:	Atlantic Nuclear Power Plant
Issue date:	08/23/1982
From:	Cowan B, Daugherty T, Kenrick J OFFSHORE POWER SYSTEMS (SUBS. OF WESTINGHOUSE ELECTRI
To:	Atomic Safety and Licensing Board Panel
References
ALAB-686, NUDOCS 8208270422
Download: ML20063C928 (8)

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bk0 UNITED STATES OF AMERICA

.N g g NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL ROARD Sh .l In the Matter of  : '

OFFSHORE POWER SYSTEMS  : Docket No. STN 50-437 m (Manufacturing License for  :

Floating Nuclear Power Plants)  :

MOTION FOR CLARIFICATION OR, IN THE ALTERNATIVE, PETITION FOR RECONSIDERATION Offshore Power Systems (" Applicant") respectfully motions the Atomic Safety and Licensing Appeal Board (" Appeal Board") for clarification of its Memorandum and Order (ALAB-686) dated August 11, 1982 in the above-captioned matter, which discussed application of the Commission's "immediate ef'ective-ness' regulation, 10 C.F.R. S 2.764, to this manufacturing li-cense proceeding. Applicant interpreted the August 11, 1982 Memorandum and Order as ruling that S 2.764 did not obligate either the Appeal Board or the Commission to conduct an immedi-ate effectiveness review in this proceeding. The effect of such a ruling, coupled with the Appeal Board's purported exer-cise of sua sponte review authority, was to indefinitely stay, without any basis, the effectiveness of the Initial Decision rendered by the Atomic Safety and Licensing Board in this pro-ceeding on June 30, 1982. If such was the ruling of the Appeal Board, Applicant submits that the Board, for all the reasons set forth in Paragraphs 1-3 below, should reconsider that ruling 8208270422 820823 PDR ADOCK 05000437 G PDR DSO 3

and establish an expedited briefing schedule to allow the af-fected parties to provide the Appeal Board with their views on this important issue. Applicant believes that 10 C.F.R. S 2.764 applies to manufacturing license proceedings and respectfully submits that the Appeal Board erred in such a contrary interpre-tation. If, however, such was not the ruling of the Appeal Board, Applicant respectfully submits that the Board should clarify the scope and nature of the ruling and its effect on the Applicant. If such a clarification would directly affect the Applicant's interests, the Applicant should be accorded its due process right to be heard by the Appeal Board before a decision is rendered which directly and adversely affects its interests.

1. In 1973 the Commission adopted regulacions (38 Fed. Reg. 30252, November 2, 1973) prescribing procedures ap-plicable to manufacturing license proceedings. Those regula-tions are found in 10 C.F.R. Part 2, Subpart E (10 C.F.R. S 2.500, et seq.) and 10 C.F.R. Part 50, Appendix M. The entire thrust of the regulations was to relate manuf acturing licenses to construction permits for purposes of providing a regulatory base for the manufacturing license. Thus, 10 C.F.R. S 2.504 provides in pertinent part:

"The provisions of subparts A and G [of Section 2] relating to construction permits apply to manufacturing licenses subject to this subpart, with respect to matters of radiological health and safety, environmental protection, and the common defense and security. . . ."1 I

See also 10 C.F.R. Part 50, Appendix M, paragraph 1.

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Subpart G, entitled " Rules of General Applicability" (S 2.700 et seq.), provide the rules of practice which govern the Com-mission's public hearing process concerning all matters of radiological health and safety, environmental protection and common defense and security, regardless of whether such hear-ings pertain to the manufacture, construction or operation of nuclear power plants. The rules contained in Subpart G have been applied to all facets of this manufacturing license pro-ceeding since the proceeding was first noticed for hearing on December 10, 1973 (38 Fed. Reg. 34008). Moreover, it is clear from the history of the Commission's promulgation of the rules pertaining to the manufacturing license option under the Atomic Energy Act of 1954, as amended, 42 U.S.C.A. SS 2011, et seq., that the Commission intended the rules of practice set forth in Subpart G to be applicable to this proceeding to the same extent that they are applicable to construction permit or operating license hearings when radiological health and safety, environmental or common defense and security matters are involved.

Therefore, Applicant respectfully submits that the Appeal Board erred in deciding in its Memorandum and Order that S 2.764, the immediate effectiveness regulation, did not apply to this manu-facturing license proceeding. S 2.764 is not substantively dif-ferent than the other rules of practice contained in S 2.700, et seq., and there is no basis in law for distinguishing it from the other regulations set forth in Subpart G.

2. Applicant respectfully submits that if S 2.764 is not at 1 cable to this proceeding, then S 2.760(a) (set forth below in pertinent part) is applicable:

"After hearing, the presiding officer will render an initial decision which will constitute the final action of the Commission forty-five (45) days after the date when it authorizes the issuance or amendment of a license . . . for a facility, or 30 days after its date in any other case, unless exceptions are taken in accordance with S 2.742 or the Commission directs that the record be certified to it for final decision."

In the instant case, the Atomic Safety and Licensing Board be-low issued its Initial Decision in this proceeding on June 30, 1982. The 45 day period specified in S 2.760 expired on August 14, 1982. No exceptions to the Initial Decision were taken, and neither the Commission nor its designated agent, the Ap-peal Board, directed that the record in this proceeding be certified to it for final decision. Therefore, if the Appeal Board decision is correct that S 2.764 is not applicable to this proceeding, Applicant submits that the Initial Decision became the final action of the Commission on August 14, 1982.

Applicant respectfully submits that the Appeal Board's sua sponte review authority, noted in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 803 (1981), may not be invoked in such a manner as to supercede the Commission regulations concerning appel-late review as set forth in S 2.760.

3. The issue decided by the Appeal Board in its Memorandum and Order directly and adversely affects the in-terests of the Applicant. If Applicant's interpretation of S 2.760 (as set forth in paragraph 2 above) is incorrect, the effect of the Appeal Board Order appears to be to indefinitely stay the effectiveness of the Initial Decision without any basis. This important issue was decided by the Appeal Board without prior notice to the Applicant or to the other parties ,

to the proceeding below and without giving said parties an opportunity to brief the Appeal Board on the issue prior to decision. Applicant respectfully submits that there are due process rights involved which require the affording of an op-portunity to be heard before the Appeal Board before a decision is rendered which directly and adversely affects its interests.

For the above reasons, Applicant respectfully requests the Appeal Board grant this Motion For Clarification Or, In The Alternative, Petition For Reconsideration of the Memorandum and Order (ALAB-686) dated August 11, 1982. Applicant proposes i

that if this Motion / Petition is granted, an expedited briefing schedule be established requiring any party who wishes to do so

to file briefs on the issue raised in the Memorandum and Order within ten (10) days after the Appeal Board Order regarding this Motion / Petition is promulgated.

Respectfully submitted,

. 0% /

\ il.A.A . v -

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h h Counsel for Of fshore P6wer Systems l

Dated: August 23, 1982

. i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of  :

OFFSHORE POWER SYSTEMS  : Docket No. STN 50-437 (Manufacturing License for  :

Floating Nuclear Power Plants)  : /

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, , 1. CERTIFICATE OF SERVICE

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I hereby certify that copies of the " Motion For Clarificat, ion Or, In the Alte rnative , Petition for Recon-sideration" were served upon the per, sons listed on Attach-ment 1 to this. Certificate of Service by deposit in the United States mail, postage prepaid, this 23rd day of August, V

1982.

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\MA s John R. enrick Coun or Offshore Power Systems

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3 ATTACHMENT 1 OPS SERVICE LI'ST e.

Christine N. Kohl, Chairman Alin S. Rosenthal, Esq., Chairman Atomic Safety & Licensing Appeal Board Atomic Safety & Licensing Appeal U.S. Nuclear Regulatory Commission Board Panel

• 4 Washington, D.C. 20555 U.S. Nuclear Regulatory Cormission Washington, D.C. 20555 Dr. W. Reed Johnson, Member Atomic" Safety & Licensing Appeal Board Alternate Chairman '

U.S. Niclear Regulatcry Commission Atomic Safety & Licensing Appeal Washiagton, D.C. 20555 '! Board'?anel U.S. Nuclear Regulatory Commission Howard A. Wilbe r , Membe r . Washington, D.C. 20555 Attmic , Safe ty & Licensing Appeal Board U.S. Nuclear Regulatory Commission Chie,f Hearing Counsel Washington, D.C. 20555 Office of Executive Legal Director

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, U.S. Nuclear Regulatory Commission Sac;etary  ; Washington, D.C. 20555 Atomic Safety & Licensin@ Appeal \ Board >

U.S. Nuclear Regulatory Commiss'ior,# i Directop Wa shir.g to n , D.C. 205f5 '

Division pof Nu' clear Reactor Regulation U.S. Nuglear Regulatory Commission Sheldor.) J. Wolfe, Esq., Chairman Was h ing tor,, D.C. 20555 Administrative Judce' Atomic Safety and [icensing I Board Doiteting and Service Section U.S. Nuclear Regulctory Commission Office' of the Secretary .

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

-;, Washington, D.C. 20555 '

Dr. David R. Schink '

Administrative Judge -

Richard Black, Esq.

A.tomic Safety and Licensing Boards Office of the Executive Legal Director Department of Oceanography U.S.. Nuclear Regulatory Commission

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xa s A & M University Washington, D.C. 20555 College Station, Texas 77840 .

Barton Z. Cowan, Esq.

Dr. George A. Ferguson John R. Kenrick, Esq.

Administrative Judge Eckert, Seamans, Cherin & Mellott Atomic Safety and Licensing Board 42nd. floor, 600 Grant Street l School of Engineering Pittsuurgh, PA 15219 Howard University 'l 2300 5th Street, N.W. Thomas M. Daugherty, Esq.

Washington, D.C. 20059 Offshore Power Systems

8000 Arlington Expressway g Dr. David L. Hetrick , .

P.O. Box 8000 Administratise Juoge Jacksonville, FL 32211 Frofessor of Nuclear Engineering The University of Ari ona Carl Valore, Jr., Esq.

Tucson, Arizona 85721' Valore, McAllister, DeBrier, Aron

& Westmoreland

! L, P.O. Box 175 A

i Northfield, NJ 08225

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Sandra Ayres, Esq. Dr. John H. Williamson Assistant Deputy Public Advocate Energy Committee State of New Jersey Atlantic County Citizens Council P.O. Box 141 on Environment Trenton, NJ 08601 211 Forest Drive Linwood, NJ 08221

Mr. George B. Ward Nuclear Power Plant Committee S. Jacob Scherr, Esq.

City Hall Natural Resources Defense Council Brigantine, NJ 08203 1725 I Street, N.W., Suite 600 t

Washington, D.C. 20006 i Dr. Willard W. Rosenberg Chairman, Energy Committee Atlantic County Citizens Council on Environment 8 North Rumson Avenue Margate, NJ 08402 Page 2 of 2

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