ML20126C472

Response to Re Roberts,Et Al,Motion to Consider Class 9 Accidents.Aslab Lacks Jurisdiction to Grant Motion. Alternative Forms of Relief Are Available.Class 9 Accidents Should Not Be Addressed in Proceeding.W/Certificate of Svc

ML20126C472
Person / Time
Site:	Saint Lucie
Issue date:	01/18/1980
From:	Olmstead W, Paton W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML17208A366	List: ML20126C464 ML20126C468 ML20126C472 ML20126C474
References
ALAB-579, NUDOCS 8004020277
Download: ML20126C472 (13)

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FLORIDA PO' DER & LIGHT CO.'1PANY ) Doc ket No. 50-389

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(St. Lucie Nuclear Power Plant, )

Unit 2) )

NRC STAFF RESPONSE TO INTERVENORS' MOTION TO CONSIDER CLASS 9 ACCIDENTS INTRODUCTION Intervenors, Ro'.tena E. Roberts, et al., have moved the Atomic Safety and Licensing Appeal Board in this proceeding to enter an order requiring the NR Staff to prepare a supplement to the FES which considers the environ-mental consequences of Class 9 accidents at St. Lucie or which justifies why such consideration should not be given and, in addition, to establish pre-hearing and hearing procedures for determining the adequacy of such a supple-ment. In the alternative, Intervenors ask: that further proceedings be I

stayed until the NRC Staff makes the recommendations called for by the Commission in Offshore Power Systems,1 or that the Appeal Board certify to the Commission the questions arising from the application of the Commission's decision to these proceedings.

1/ Offshore Power Systems (Floating Nuclear Plants), CLI-79-9,10 NRC ___

(Sep; ember 14, 1979).

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];risdiction of the Appeal Scard to consicer the notion; (2) other avenues of relief available to the Intervenors within the Commission (in the event it is concluded that the Appeal Board lacks jurisdiction); and (3) the merits of the arguments raised in the motion. (Tr. 868) ,

The NRC Staff believes that the Appeal Board is without jurisdiction to grant the requested relief. Other appropriate relief is available to Intervenors.

They can address a request for relief to the Director of the Office of Nuclear Reactor Regulation pursuant to 10 CFR 9 2.206, they can petition to partici-p; .s in the operating license proceeding when it is noticed, or they can p;rticipate in the rulemaking proceeding which the Commission has indicated its intent to conduct. In any event, the arguments raised by Intervenors are insufficient to require further inquiry into the environmental consequences of

iass 9 accidents at St. Lucie as a part of the currently pending proceeding.

1 DISCUSSION

.. Tne Acceal Board is Without Jurisdiction to Grant the Recuested Relief. .

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',::: Der 7,1977 the Appeal Board affirmed the Licensing Board's Initial

~.3:ision authorizing the Director of Nuclear Reactor Regulation to issue a construction permit for St. Lucie Unit 2 at Florida Power and Light's Hutchin-

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e Bland site on Florida's east coast.2/ However, jurisdiction was retained I'.-rica Po. er and Licht Cc rany (St. Lucie Unit 2), ALAB-435, 6 NR:

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In their present motion the Intervenors have not attempted to demonstrate tnat there is a particular Class 9 accident related to grid stability or radon. Rather, citing the Appeal Boards' P,each Bottom decision, they have chosen to argue that since the Co:amission's Offshore Power Systems decision was rendered prior to the relinquishment of all juri,sdiction by this Board,

"...it is appropriate for this Appeal Board to retain jurisdiction to dispose of the factual and legal issues."5/

Intervenors' reliance on Peach Bottom is misplaced. In that case the Appeal Boards were implementing a Commission directive to consider a specific issue in all proceedings "still pending before Licensing or Appeal Boards".6/ T'he -

Commission specifically. required that "[w]here cases are pending before Appeal Boards, the Appeal Boards are also directed to reopen'the records to receive new evidence on rt::n releases and on health effects resulting from 3/ ine gric issue was retained as the result of an October 28,1977 order amending ALAB-435. The Scard also has jurisdiction over radon releases as in other cases p;. ..c:. to a Ccr. mission directive contained in 43 Fed. Reg.15613 '!-- ' '.4,1978).

4/ ALAB-537, 9 NRC 407 (1979).

5/ Motion p. 3 citing Philadelchia Electric Comoany, et al. (Peach Bottom Units 2 and 2,, A'_A3-480, 7 NRC 796 (19 75). .

6/ Peach' Bottom, sucri, ;. 799.

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rs e:r :----- f :35' E t rds s ce:ifi: ally rele::s ' .-:: ; i: :neir Te jurisdiction did not attach in cases where lirited i::ut: remained before it, noting the grant of jurisdiction in the Commission's Order.8/

Unlike Peach Bottom, the Commission's Offshore Power Systems decision con-ta' ins no special grant of jurisdiction to Licensing Boards or Appeal Boards to consider Class 9 accidents in pending cases. In Black Fox, the Appeal Board specifically noted this fact stating: "

.. .[T]he Cc= mission has reserved to itself the right to cecide whether such natters are to be considered in c

any given case until it adopts a new general policy."~'/ The fiRC Staff does not believe that Offshore Power Systems affects tne ; ;osition that boards can admit Class 9 contentions where an affirmative s :, ting is made pursuant to existing rules that other accident assumptions nay be more suitable than those described in the proposed annex to Appendix D to 10 CFR Part 50. [36 This, of course, _ leaves Intervenors' motion subject Fed . Reg . 22851 (19 71)]

to the applicable rules and case law which govern va isdiction of the Boards

]/ 43 Fea. Reg. 15613,15615 ( April 14,19 78). -

8/ Peach Bottom, p. 802 n. 4. ,

9/ Public Se rvice Co. of Oklahoma, et al. (Ela;,. . .r.i ts 1 and 2),

ALAB-573,10 fiRC __, Slip op. p. 31 (1979).

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5ervice Company of New Hamoshire, et al. (Seabr0:k Units ! ar.d 2), AL3.E-5'.3, 8 NRC 694 (1978). There the Appeal Board held that it lacked authority to reopen the record on an issue to which finality had attached even though it still retdined before it a discrete issue in the proceeding.13/

Intervenors' effort to raise the Class 9 issue in this proceeding has been previously rejected by the Licensing and Appeal Boards and their appeal of that cecision has been denied in the courts.1 / Likewise, a moticn to reopen the record would be inappropriate because the appellate process has been completed and the decision in this proceeding is final except for the limited issues of grid stability and Table S-3 (radon) over which jurisdic-tion has been retained.

10/ See e.g., Consumers Power Co. (Midland Units 1 and 2), ALAB-123, 6 AEC 331, 347 (1973); Wisconsin Electric Power Co., et al. (Point Beach),

ALAB-137, .6 AEC 491, 502 (19 73); Lona Island Liantino Co. (Shoreham),

ALAB-156, 6 AEC 831, 835 (1973); and Pennsylvania Power & Licht Co.

(Susquehanna Units 1 and 2), LBP-79-29,10 NRC , (October 19,1979).

11/ 8 NRC 694, 695; accord, Washinaton Public Power Supply Systen (WPPSS Projects 3 and 5), ALAB-501, 8 NRC 36i (19 76); Puoi1c Service Conran:.

of Indiana, Inc. (Marble Hill Units 1 and 2), ALAE-530, 9 NRC 261 (ii :

Houston Liahtina and Power Co., et al. (South Texas Units 1 and 2),

ALAB-381, 5 NRC 582 (1977).

12/ Hodder v. NRC, 589 F.2d 1115 (D.C. Cir.1978), cert denied

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ould be stret hed to encompass a Class 9 contention, Intervenors have failed to so allege. Rather they seem to be attempting to resurrect the same argunents which they have previously exhausted in this very proceeding and consequently they are barred from attempting to relitigate their general arguments in this forum by the doctrines of finality and res Liudicata.3S/

An inplicit recognition of the jurisdictional problems seems to be a cettin< 1 in Intervenors' Potion by the use of pleading in the alternative.15/ i c, L . -

venors suggest that this Board either stay further proceedings pending consideration of NRC Staff recommendations for interim modifications to the Commission's Class 9 policy which were called for in the Offshore Power Systems decision or in the alternative certify the question of the appli-cability of the Commissions Offshore Power Systems decision to the pending

. St. Lucie proceeding.

13/ Vircinta Electric Power Co. (North Anna Units 1 and 2), ALAB-551, 9 URL 704, 707 (19 79).

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11/ Alth0 ugh not fully applicable in administrative proceedings the considera-tions of fairness and conservation of resources embodied in these doctrines '

n'r e relevant. See Public Service Company of New Hamoshire, et al. (Seabrook Units,1 and 2), CLI-78-1, 7 NRC 1, 27 (19 78); Houston Lientina and Po.er ,

Co xny, et al. (South Texas Units 1 and 2), CL1-77-13, 5 NRC 1303,1321 (1977). .

15/ Motion p. 4.

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, ey -ci ra r:ssible. 2 Certainly, tnere is nothing in the Offshore Pc.:er Sys tems decision relied on by Intervenors which prevents this Board from reaching a final decision on the discrete issues ever which it has retained jurisdiction. Consequently, there is no justification for not going forward on those issues.17/ --

2. Other Avenues of Relief.

The usual response to a party seeking to reopen a record in a docket where a final cecision has been rendered and appellate jurisdiction terminated is that the party has recourse to the provisions of 10 CFR f 2.206.18/ Those 16/ 4c Fe . Reg. 58559 (October 10, 1979).

12/ Inter /enors suggest as an alternative that the Appeal Board may wish to certify to the Commission 'as " major or novel" the questions of Offshore Po.:er Systems' applicability to St. Lucie pursuant to 10 CFR i 2.785(d).

Sucn a course is not warranted here where the questions are not major or ncc:1. In Black Fox, supra, slip op. p. 32, where the Appeal Board, st:;;ing short of certification, directed the NRC Staff to inform the Cc--ission whether it believed the consequences of Class 9 accidents ste.': be considered in that ongoing proceeding, the Licensing Board

..11 in the process of conducting the safety hearings and unlike 1.. :ie, no final decision has been rendered on the merits. In Black-F:> . :ntrefore, a substantive change in policy on Class 9s might have c '-r': " impact on the ongoing proceeding.

Such considerations _are

.'i:able in St. Lucie where the record is closed, the dec s ii ons are

-': unreviewable and the Appeal Board has only narrow and discrete u t .e: :efore it. Tne question is of course not " novel" since the Ec--ission is well aware of its action in Offshore Power Systems and Inter /enors have pointed to nothing making St. Lucie strikingly different fre ether land-based reactors. .

18/ 2:. .:., "arble Hill, suora, p. 262.

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';- 5s- :: r-turi ty t:' -:'r e : - - - n:e r . men qe ;  :::L . to:, lies for its operating license.1S/ Sy that time the rulemai:ing noted in Inter-venors' motion probably will have specified what environmental considera-tions should be given to Class 9 accidents and the parties including Inter-venors will be in a better position to address such contentions ,in the St. Lucie proceeding.

Intervenors also have available to them an effective avenue of relief, viz, the opportunity to participate in the rulemaking which the Commission, in ,

1 Offshore Power Systems, announced it would conduct. In the rulemaking forum Intervenors will have an effective epoortunity to argue their point of view i on Class 9 accidents to the Commission.

3. The tierits of Intervenors' Arauments on Class 9s Intervenors' motion does not atter.pt to formulate a specific Class 9 conten-ti on. Assuming for argument that the Commission's Offshore Power Systems decision signals an intent to perr..t. consideration of Class 9. accidents in individual licensing proceedings, it .anifestly does not presently permit such consideration'unless the ree '-s ents of existing regulations and case law are met as indicated in Midlar and Susecuehanna, suora, or unless the 19/ See, in :nis regard, the rc-ir.dsr in ALAB-537, suora, p. 411 where this l

Ecard noted the further c;;:-tur.ity presented by tne filing of an OL application, j i

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The NRC Staff is mindful, however, of the Black Fox Appeal Board's direction to infom the Cornission of the Staff's view as to whether Class 9 accidents ought to be considered in that proceeding. It is the NRC Staff's position that the Co=ission's Offshore Poser Systems decision does not require the Staff to infom the Commission of individual cases in which the Staff does not believe Class 9 accidents should be considered. While the NRC Staff has not identified St. Lucie to the Commission as a case in which Class 9 acci-dents should be considered pending the adoption of an interim rule and 1 subsequently the Commission's revised policy and rules, ths-: :re a nunber of ongoing matters which may ultimately bear on this issue.

First, the NRC Staff has not c'onsidered St. Lucie as a case with.in the meaning of the Comission's direction in Offshore Power Sys.ms because that decision was issued in October at a time when the constructi: remits for St. Lucie' had already issued and the natters pending befort . E *apeal Board were limited in scope. Inter /enors' Class 9 contention had siready been finally rejected by the Co=ission and the federal courts.

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P.3 : .i: ,:ald be accorded other land bese: -er:::-5. Ease: on a preliminary assessr.ent, no such circumstances can nort be identified. Ccnse-quently, current Commission policy on Class 9 accidents embodied in the proposed " annex" to former Appendix D of 10 CFR Part 50 [36 Fed. Reg. 22351 (1971)] is applicable. However, the task action plans contained in Draf t NUREG-0560 (TMI Lessons Learned)~ proposed to the Commission identify Task  ;

Action III.E.1.4 as liquid pathway interdiction (an in-depth study of one of the special factors identified in Offshore Power Systems which might trigger further consideration of Class 9 events). Assuning approval of this plan, St. Lucie would be analyzed as part of Task Action Plan III.E.1.4. If tnat

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I should result in the liquid pathway being identified as a unique consideration at St. Lucie and the Commission's interim. policy on Class 9 accident considera-tion has not yet clarified the situation in this regard, the NRC Staff will promptly inform the Commission and this Board pursuant to the Offshore Power

'T Systems direction.

CONCLUSION For the foregoing reasons, the NRC Staff believes the Appeal Board lacks ,

jurisdiction to grant Intervenors' motion. Alternative forms of relief are available to Intervenors by. petitioning pursuant to 10 CFR s 2.206, by participating in the proposed Commission rulemaking when it is noticed, or i

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William J. instead Counsel for : RC Staff 7 , r .

h Cflf lb William D. Paton Counsel for f1RC Staff Dated at Bethesda, Maryland this IEth day of January,1980

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(St. Lucie Nuclear Power Plant, )

Unit 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF. RESPONSE TO INTERVENORS' MOTION T0 '

CONSIDER CLASS 9 ACCIDENTS", dated January 18, 1980, in the above-captioned proceeding, have been served on the following, by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Reculatory Commission's internal mail system, this 18th day of January,1980:

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• Micnael C. Farrar, Esq. , Chairman Dr. David L. Hetrick Atcri: Safety and Licensing Appeal Pr:fessor of Nuclear Engir.eering '

Sta rd Uni.ersity of Ari:ona U. S. Nuclear Regulatory Commission Tucscn, Ari:ena $5721 Washington, D. C. 20555 Dr. Frank Hooper

• Dr. W. Reed Jor.r. son Resource Ecology Program Atomic Safety and Licensing Appeal School of Natural Resources Board University of Michigan U. S. Nuclear Regulatory Commission Ann Arbor, Michigan 48104 Washington, D. C. 20555 .

Harold F. Reis. Esq.

• Richard S. 5:i: man, Esq. Lowenstein, Newman, Reis & Axelrad Atomic Safety ar.d Licensing Appeal 1025 Connecticut Avenue, N.W.

Board Washington, D. C. 20036 U. S. Nucier# :egulatory Commission l

Washington, : C. 20555 Norman A. Coll, Esq.

Steel, Hector & Davis Martin Har:lc H:dder, Esq. 1400 S.E. First National Bank- Sidg.

1131 N.E. if- '--est Miami, Florida 33131 Miami, Fl:"M:t 3:13E ,

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• Atc .ic Safety and Licensing Boar'd' Panel

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

e 0::ns:i ; anc Service Se:: ion Office of :ne Secretary U.S. Nuclear Regulatory Co=ission E.'a s h i n g to n , D . C . 20555

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William D. Paton Counsel for flRC Staff k

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