ML20126C468

Reply to Applicant & NRC Response to Intervenors' Motion for Consideration of Environ Effects of Class 9 Accidents. Proximity Between Proposed Plant on Hutchinson Island & Atlantic Gulfstream Requires Class 9 Consideration

ML20126C468
Person / Time
Site:	Saint Lucie
Issue date:	02/05/1980
From:	Anderson T, Hodder M HODDER, M.H., MIAMI, UNIV. OF, CORAL GABLES, FL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML17208A366	List: ML20126C464 ML20126C468 ML20126C472 ML20126C474
References
ALAB-579, NUDOCS 8004020272
Download: ML20126C468 (19)

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(St. Lucie ::uclear Pcwer Plant, )

Unit No. 2) )

INTERVENOR'S REPLY -

to FPL's and the NRC Staff Response to Intervenors' Motion with Reseect to Class 9 Accidents 1 The Black Fox seemingly resolves.intervenors' motion.

Appeal Board should direct the staff to promptly advise the Commission of the reasons why it believes the consequences of class 9 accidents should or should not be considered in these proceedings and should establish the time within which other parties may respond and make their views on the question known to the Commission. The staff's explicit acknowledgment that the proximity between the proposed plant on Hutchinten "sland and the Atlantic Gulfstream may require consideratien of the 2

class 9 consequences to,the liquid pathway makes su:h a

1. Public Service Co. of Oklahoma (Black Fox Staci:n, Tnits 1 and 2)r ALA3-572, .NRC , slio. oo. . n. o. . 29-2~ (1979).

2. NRC' Staff Resc.onse to Interveno.rs. Motion to Consider Class 9 Accidents, pp. 9-10 [ cited as " Staff Resp."]

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. - . . ~ . .

In addition, rz:_1;;i:n 1_;; urpent here than in Black FC .

_r.:Er/:n r_ : ;;s:: the Board sh uld pr n: th fir : altsrna-

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. sed in :neir m : ion to the C =missi:r in crier tha have the opportunity to resolve the procedural and jurisdictional problems implicit in its order in offshore Power Systems.

Jurisdiction At the December hearings, the Appeal Board asked all parties to address the question'whether the Board had jurisdiction to decide the motion. Under the construction of the Commission's  ;

order adopted in Black Fox, clearly the Board does not have jurisdiction to decide or grant relief on the merits. By that decision the Board ruled that the Commission had reserved juris-diction to itself and that the Board's role was limited to assuring that the staf f followed the mandate to advise the Com- I mission in a timely fashion. By their jurisdictional arguments, I l

however, the applicant and the staf f ask this Board to arrogate ,

this jurisdiction unto itself and to enter an order which would 1

.l in effect relieve the staff of its duty to advise the Commission of its views prior to completion of these construction p,ermit

3. Offshore Power Systems (Floating Nuclear Power , Plants) .

Docket No. STN 50-437, NRC (1979) (reproduced as an Addendum to intervenors' motion) . -

1 proceedings. Intervenors submi: that the jurisdictional argu-

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2: .::  :: rinc_. : __ c:: h. ,uri fi :icns- principles er::b- ,

1 1 shsd by this I::ri's pri r fecisi:nz.'

A. Elach ?::: . j The Appeal Board concluded that the Commission's order in Offshore did not expand the right or duty. of the Licensing or the Appeal Boards with respect to environmental consideration The 3oard also concluded, however, that

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of class 9 accidents.

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the Commiss, ion's order did mean that the Commission had opened the door to such consideration and had reserved to itself the right to decide which individual land base reactor cases re- . <

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quired such consideration (pending adoption of a new general (

policy). Although the Commission's order did not specify the time, the Appeal Board recognized that the Commission's de- l 1

cision should be made at the earliest possible moment in pending proceedings in order that due consideration could be )

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1 c.iven in those cases where the Commission determined considera- l tion was required. Accordingly, the Appeal Board ruled that l 1

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4. Again intervenors find the staff's arguments anacolous in view of their recognition that the St. Lucie plant is one of those plants whose similarity to a floating plant is so striking that consideration may well be required. (Staff Resp., pp. 9-10). ,

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its role ar lirited to assufing that the staff's advice was .

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pr:=p:ly subri ::._ :: the C:=m; r_:- ___ _ ; :. ____I_.. .

Tc - :::11: ci:r :f th:: drei:_- hc :sse a: Mirf reer-cle r.  ::er; th; ,ppeal 30ard :: i n- th:  ::10- i .- i cntirecy, it would be e::ercising jurisdictirn :: deprive the C:= mission of an opportunity to decide whether class 9 accidents should be considered during these construction permit-proceedings. No one challenges the jurisdiction of the Commission to interject an issue into pending proceedings and to direct the Licensing and Appeal Boards to reopen pending proceedings to receive evidence and resolve this issue. In the radon emission pro-ceedings, the Commission withdrew a part of a generic rule which had been applied in pending cases and directed both the Appeal Board and the Licensing Board to reopen the record and consider the question in all cases pending before them, irrespective of whether the issue had been previously raised by the parties, (IJ[  ; see Also, Peach Bottom. )

Sy_its crfer in Offshore, the Commission acknowledged that its generic prohibition might be outdated and opened the door

5. " Uranium Trel Cycle Impacts From- Spent Fuel Reprocessing and.Radi::::ive Waste Man,agement," 4 3 Fed. Reg. 15613 (1978).

6. Philadel=hia Electric Co,. (Peach Bottom Atomic Power Station, " nits 2 and 3), ALA3-480, 7 NRC 796 (1978).

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Tnis to class 9 accident consideration in individual cases.

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i .- 2nr indi z:dus; p ending cs:c . In rs1:hing this de _c;;:

si cc in pendin: :sses, the C:mmission mir : ell .tish to considsr whether the doctrine of finality or the stage which a proceed-ing has reached constitute appropriate bases for its declining to order consideration in an otherwise proper pending case.

But the Appeal Board m'ust recognize that a decision to deny i

consideration based on finality grounds is an exercise of dis-cretion. By its Black Fox decision the Board has recognized that that discretion has been reserved to the Commission. Inter-venors submit that under that decision the Appeal Board may not l itself apply the discretionary doctrine of finality to deny the motion because by so doing it would be exercising discretion to deprive the Commission of an opportunity to decide an issue the Commission has reserved to inscif.

B. Of Mandatory and Discreti: nary Jurisdictional Princicles.

The analyses set out in the applicant's and the staff's responses to the motion share tw: f 11scies. Each treats Black Fox only to the extent it precludes :ne Appeal Board's deciding l the class . 9 issue on the merits and each fails to recognize that

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the Board's prior jurisdictional decisions have distinguished

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1. Man dato ry jurisdicti:n 1 trincities. ~: hen the cr -

sedings are over, the proceedings are ccer. After the 'i-censing Board has made its decision on an application for a license or permit, af ter the Appeal Board has af firmed, and af ter the Commission has affirmed or the time for Commission re-view has expired, the proceedings are over; neither the Licen-

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sing Board nor the Appeal Board has any "croceeding" before it in which new or old issues can be raised. Both boards have lost subject matter jurisdiction because there is no basis either in the statute or in the regulations for 4 further exer-cise of jurisdiction.

The Board has had occasion to illustrate the application of these mandatory principles in recent decisions. Thus, in South Texas, a co-applicant asked the Licensing Board to order an antitrust hearing on an application six months af ter the A: peal t

l Board had af firmed the Licensing Board's decision authori:ina #

the issuance of a construction permit. ;o appeal had bicr :: hen I

7. Houston Lighting & Power Co. (South Texas, Units 1 and 2),

ALAB-381, 5 NRC 5 82 -(19 77 ) .

i frm" the original decision and no issues remained outstanding

_. ;rc :ent:ru:1.. ,crmi cr eedings. I.s J.,:7._:  :::. J 1:f

.. ;r::ee_ings -'ers ever and th:: there h:d hen.- .: 'srir f : th: Licensin; 2 :rd te e::ercise jurisdi::icn over the :: uer

sed by the = :icn. (See also ~GPSS. ?

Clearly, neither the decisions nor the rule is applicable i here. The Appeal Board still has before it.two issues -- the adequacy of the offsite/onsite emergency power systems and the radon emission issue. The construction permit proceedings are not complete.

2. Discretionary Jurisdictional Principles. Apart from the duty to decide applications properly . ; fore them and the

8. Washincton Public Power Supply Systems (WPPSS Projects 3 and 5), ALAB-501, 8 NRC 381 (19 78) (denying as untimely a motion posing questions for review filed in Appeal Board af ter time for Commission review of decision had expired) .

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9. It bears repeating that there is a se'cond rule of juris-diction which is mandatory, not discretionary. The Commission itself has the right to order consideration of an issue in any uncompleted proceeding. It matters not the stage of the proceedings, that the issue may have already been litigated, or that the issue may never have been placed in controversy at all; it becomes the duty of the Licensing and Appeal Boards to comply with this mandate.

The Commission's directive on the radon emission issue (supra, n. 5) ' and this Board's response in the Peach .

Bottom decision ( s up ra , n. 6) illustrate this principle. ,

Intervenors submit it is applicable here.

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'"'" to refrain frcm deciding cuestions when no part of the pro-

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the Appeal Scards sh:uld decline :: e::ercis e furisdicti:n crer issues which arise late in the proceedings. Although their parameters are unclear, the basic principles have emerged.

First, as this case illustrates and as the Board has recently affirmed, the Appeal Board is free to raise sua sponte at'any time before the close of the proceedings serious issues which were neither considered by nor presented to the Licensing Soard."O Apart from intervenors' motion here and the motion in Black Fox, intervenors suggest the Commission's directive in Offshore Power Systems presents an issue the Appeal Board should properly raise sua sponte in all pending proceedings to assure that the Commission is promptly advised in each case.

At the other end of the spectrum, borrowing from judicial e:ge rience , the Board has recognized that some limitations must be placed upon the parties' rights to raise or reraise, l'. Virginia Electric Pcwer Co. (North Anna Units 1 and 2),

ALA3-551, 9 NRC, 704, 707 (1979) (citing Florida Power

& Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2),

ALA3-435, 6 NRC 541, 544-46 (1977). .

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to litigate or relitigate issues endlessly, in the interes:

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enin: f a :ua~ c.uez icns ': sed ur.en an alleged change in the factual circumstances where the questions have been or clearly should have been resolved earlier in the 1,

proceedings. For example, in Seabrook^^ the Appeal Board ruled it would not permit the question of the applicant's financial-qualifications to be reopened years a#ter the issue had been fully litigated, decided, and affirmed, based upon an intervenor's motion alleging the applicant's financial circumstances had changed materially, even though the pro-ceedings were still incomplete because the Appeal Board still had two unrelated and discrete issues before it -- an alter-native site issue and the radon emission issue. Similarly, in Marble Hill, the Appeal Board refused to consider an inter-venor's motion to reopen the safety hearings made six months after the time for review of the construction permit had expired, even thoug'.- the Appeal Board still had the radon

11. Public Service C:. o,f New Ham: shire (Seabrook Units 1 l

and 2), ALA3-513, 8 NRC 694 (1978).

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Both those decisions, of course, emissicn issue before it.

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involved a_::::ry: :: re:ren t ; _ _ _; ____7--

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h::35 cy:r in :llspe: ch:nre i-the Appeal 5:ard has bef:re it 1 m::icn ir. r- :: address :

Cem-legal questi:n which arcss sciely as a resu;; cf a recen:

mission decision. ,

The only The doctrine of finality can not be applied here.

issue that has been litigated in these proceedings is legal --

as a matter of law, did the Licensing Board correctly apply the Commission's 1971 interim guidelines to preclude consideration of the consequences of class 9 accidents in licensing pro-ceedings, absent an affirmative showing of probability by intervenors? That issue has been fully litigated and decided against intervenors. Intervenors concede that they may not now seek to reopen that question in these proceedings.before the Board. But no facts were litigated and a new question of  :

law has arisen as a result of the Commission's order in its 1979 decision in Offshore. Power Systems.

12. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2:, J. A3-530, 9 NRC 261 (19 79) ; but see and compare , earlie r decision in Marble )

Hill, ALA3-493, 8 NRC 253, 260 (19 ~ 5 ; (concluding "the 4 1

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..ower to reconsider is inherent in the c.ower and deciding to consider legal questions not t.o decide" raised on

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prior appeal of same issue.)

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E The question posed by the =cti:- here Ienf in Black Fox) ru i ~.= ? 2 '

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're implemented. With respect to these issues, the cerchin: Of

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31ack Fox is clear. Che Comrission has reserted jurisdicticn over the question unto itself and the Board's function is simply to assure that the staf f promptly advises th'e Commission of its views so the Commission can exercise that jurisdiction.

C. Alternative Remedies. Both the applicant and the staff suggest the intervenors' remedy is to petition the  ;

Director of Nuclear Reactor Regulation to institute a show >

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13. The staff has made it clear that it disagrees with the Black Fox decision. "It is the NRC Staff's position the Commission's Offshore Power System decision does not require the Staff to inform the Commission of individual l cases in which the staff does not believe Class 9 accidents should be considered." (Staff Resp., p 9; emphasis added.) r Thus, according to the staff, the Commission's directive ,

in Offshore is meaningless and the staff can continue, as it did before Offshore, to consider Class 9 accidents infor- l mally. (See NRC Staff's Brief in support of Affirmative

' Funding on Certified Question; pp. 44-45, Offshore Power l' Systems, Docket No. STN 50-437). If it cannot reach a private agreement on the question with the applicant, thcn and only then need it seek permission forOn formal considera-this basis, the ,

tion on the record from the Commission. j public and intervenors may continue to be deprived of an; right to participate or know the basis upon which thess decisions are made. Such are the "lesso'ns -learned" fre.-

the experience at Three Mile Island.- Intervenors find ,

. this construction of Offshore and Black Fox difficult to .

accept. s p

O causs p..:2_i_n: unfcr 1: CTR S 2.206. Neither the applicant n:: he :aii d:::us zhe ::ur:s of :he : rs:::r's :::h rt:y ur t s _ _ :: _ :: :c : _ ma:::: r respe : :: -

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the C:mm;ssion has reserved ;urisdicci:n to itssif. (31;;:

Tex, Slip. Op. at p.31.)

Beyond this, the applicant's and staff's suggestions are both disingenuous. Both suggest that in'tervenors peti-tion the Director for an order to show cause. And yet neither finds it necessary to discuss whether, apart from Black Fox, the Director would find himself constrained by. the " doc-trine of finality" to deny relief under the Commission's decision in Northern Indiana Public Service Co. (Baillv -

Generating Station, Nuclear 1), Dkt. No. 50-367, NRC (1978).

Although the case could be distinguished, it is clear that the same arguments the applicant and staff urge here to induce the Appeal Board decline to address the merits and defer to the Director could be urged to persuade the Director that to con-sider the merits of such a petition would ccnstitute an

. I

14. Indeed, absent intervenors being able to carry the burden of showing probability, the only relief the Director could l grant, consistent with the 1971 interim guidelines, would be to require a_ showing with respect to the specific Three l

Mile Island type Class 9 accident. See, Pennsylvania .

! Power and Licht Co. (Susquehenna Steam Electric Station, Units 1 and 2) , LPB-79-29,.10 NRC (1979).

14a. CCH Nuclear Reg. Reptr. 30,287.. l 1

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unwarrantef interference .._... ...e affudi::ticc functions of

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The s:sff suggests two a:ditiona_ proceedin in which intervenors might properly raise this issue -- in the pro-ceedings that will take place when FPL applies for an operating license and in the rulemaking proceedings th'e Commission sug-gested would be reinstituted as a result of offshore. (Staff Resp. p. 8.) Neither alternative permits intervenors to pose the cuestion in proceedings to determine whether and under what conditions a second nuclear power plant should be con-structed on Hutchinson Island. Both suggestions would defer I the issue until the applicant had made further invehtments in the project. In either proceedings the environmental issues will be wholly different from those posed here.

The Merits Although the Appeal Board has determined in Black Fox th:- it will not itself consider'the merits, the substantiality l 1

li, The staf f does acknowledge that this procedure is generally ir tched only when " appellate jurisdiction [has] terminated" It is, of course, well established i

(Staff Resp., p.7).

that "It has never been necessary to invoke this pro- ,

ce' dure ' in a pending case . . . ." Union _ Electric Co.

' (Calloway Plant, Units 1 and 2) ALAB-348, 4 NRC 225, 232 l (1976). i l

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of the cuestion posed may ne a : actor in cec ; :.3 .,.ent.e: the ,

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Liquid pathway interdiction was one of the factors that ,

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led the staff to seek class 9 accident consideration in the j 1

proceedings on the application for a manufacturing license in J offshore. As the staff admits in its reponse (Staff Resp.

p. 10-), it is one of the factors that might demonstrate the need for clas.s 9 consideration here. But under the staff's 1

conception of its role, there is no real urgency for a de- I 1

cision here; in de e'd , the staff suggests that these construction l perrit proceedings be permitted to close, that the applicant be permitted to continue construction on the existing design, 1

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16. Although intervenors .believe class 9 ensideration might cor.pel re- l consideration of the de:ici:n to pe=it construction of a plant on )

a narrcw barrier island adjacent to a major international liquid l i

pathaay, they also rec:c . ice such consideration right cnly result in a conclusion that desig c'r.ges were needed to strengden the barriers between the " :r." of d e plant and de liquid pathaay.

(For a literate description of de prelirina:y pla . ring and design process undertaken whe.n d'.c ing gcwer plants were first conceived, see J. McPhee, "The A.1 nti: G-zerating Station," recrofuced _in

-oha , Giving Cbod "Mi"- . :, .76-118 (Fee York: 1979).) For this reason alone, interve.::: Id-it the questien should be res-lewed and decided before fu:-9.er ens ruction is c=pleted, which can only rake subse:uant rodifications acre costly.

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l and that intervenerr, th? :pplicant, 2nd the Cermission should j simply wait until such time as the :: ff turn: i:: ::tsnti:n .

this pri:1;r in ::r .:::icr . i h th: 2:. ::n -!:e. Su:?

a proposal serves n One's interes: na hardly ::fl:::: an orderly administrative process for reselving a critical and i I

disputed issue (nor does it evidence particular zeal on the

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part of the staff).

The two questions posed by this motion can perhaps be graphically assessed on three axes -- a procedural axis and two substantive axes. On the procedural axis, FPL correctly describes the proceedings that have taken place since it tirst applied for a construction permit in 19 73 and since intervenors first sought class 9 consideration in 1974. The proceedings are indeed well advanced on the procedural axis and one may empatnize with the applicant's concern that additional litigation ensue at this date. 3 l

But there is a second . axis -- a , substantive axis. The Commission has now found that the consequences of class 9 accidents should be considered in connection with floating power plants and has indicated it intends to re :nsider.its ,

17. Intervenors hope,all might also recognize that the lateness with which the opportunity to consider this issue comes is not attributable to want of effort on.

their part. (See discussion, FPL P. esp. pp. 7- 8. )

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relic ~ith respect to land based plants.

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.. : r.: -_ ::nz:ructed with floatin: cower clants at One enf and

__:.i h az a d pl-h.:: pr:posef :: he located 2er; fr:r. ma$:: .ater- --

ways and en seismically and =ene:::1:gically sta'ble locations.-~

Clearly the plant being constructed on Hutchinson Island is as f

close to the floating power plant end of the axis as a land based plant could be.

Finally, a second substantive axis can be constructed'--

an axis defined by the potential environmental consequences of nuclear accidents. At one end are the consequences of those accidents in what the Commission calls class 1; at the other, are the consequences of core melt. accidents in class 9. How-l ever one perceives the probability of an occurrence, there has The been little doubt that the consequences would be severe.

Appeal Board has 'before it a motion which asks the staff to advise the Commission, inter alia,. whether the potential con-sequences to Atlantic Gulfstream and site environs resulting 7

from a core melt accident at plant located on narrow barrier island are such that environmental consequences of class 9 accidents should be considered in detemnining whether and how

18. The Black Fox plant would appear to be near the secure end of the so.ectrum. E.c., Black Fox, ,Slic..oo. c.o . 33 c- .

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such a pl n. _..:_1f is ::nstru:tef at that location. Surely the e>ger:ence a: : :.r e e . _ _ _ _:_and ani :he ie:ir :n en Offshtra 2_____=  :: nL.a _ _ _ _

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the I;m=:::icr tance O cc pel the staff to summit its V e..s  :

before the construction permit proceedings are completed.

CONCLUSION Since 19 74 petitioners here have sought' to compel consi-deration of the environmental consequences that might result if a class 9 accident occurred on Hutchinson Island. In the l l

record there is no explanation to show why the staff con- l cluded consideration of class 9 accidents was appropriate in l l

1973 in connection with a land bas.ed site (Newbold Island)19 and was appropriate in 1978 for floating site (Offshore Power l

Systems) but was not appropriate for a site located on a l l

narrow barrier island in the Atlantic Ocean adjacent to the l Gulfstream.

It may be that the nation's energy needs substantially outweigh any risk to the human environment from a core melt accident. It may be they do not. Or the best judgment may fall somewhere between: cost-benefit analysis may dictate

19. See, NRC Staff's Brief in Support of Affirmative Finding on Certified Question, Offshore Power Systems, Docket No.

STN 50-437) at pp. 44-45.

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Esf:re the Occ.ula _an on and and surr: niin? Eutchins:n Island 4

is compelled to spend 40 years in the shadow of a second nuclear 1

reactor, they are entitled to have the Co==ission consider the  ;

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environmental consequence of a class 9 accident or, at a minimum, to an explanation why such consideration is .not i

appropriate in this case.

Accordingly, intervenors submit that the Appeal Board should enter an order:

1. staying completion of these proceedings until the Com- )

mission has received and acted upon the staff's recommendations 1

i with respect to class 9 accident consideration at the St. Lucie site or has adopted a new general policy;

2. directing the staff to advise the Commission within 30 days of the reasons why it believes the consequences of class 9 a::idents should or should not be considered in this case and gran, ting the other parties 30 days after that advice is given :: :::mit their views on the question to the Cc= mission; and

2. ce rti f. vin e. to the Con =ission as maJ'or and novel the w

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Respectfully submitted, ,

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Terence J. Anderson 1 University of Miami School

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of Law Coral Gables, Florida 33134 (305) 284-2253 or 2971

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