ML20126C474
| ML20126C474 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 02/14/1980 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Anderson T, Hodder M HODDER, M.H., MIAMI, UNIV. OF, CORAL GABLES, FL |
| Shared Package | |
| ML17208A366 | List: |
| References | |
| ALAB-579, NUDOCS 8004020282 | |
| Download: ML20126C474 (7) | |
Text
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'10hael C.
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In the Matter of
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)
FLORIDA POWER & LIGHT COMPANY
)
Docket No. 50-389
)
(St. Lucie Nuclear Power Plant,
)
Unit No. 2)
)
)
Messrs. Terrence J.
Anderson and Martin Harold Hodder, Miami, Florida, for the intervenors.
Messrs. Harold F.
Reis, Washington, D.
C.,
and Norman A.
Coll, Miami, Florida, for the applicant.
Mr. William D.
Paton for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER February 14, 1980 (ALAB-579)
On December 12, 1979, the intervenors once again moved 1/
for consideration of " Class 9" accidents-in this proceeding.
~~1/
"The term ' Class 9 accidents' stems from a 1971 AE:
proposal to place nuclear power plant accidents in nine categories to take account of such accidents in preparing environmental impact statements.
That pr:-
posal was put forward for comment in a proposed
'An-nex' to the Commission's regulations implementing NEPA.
36 Fed. Reg. 22S51-52 (December 1, 1971).
The nine categories in that ' Annex' were listed in in-creasing order of severity.
' Class 9' accidents involve secuences of postulated successive failure more severe than those postulated for the design ':: sis of protective systems and engineered safety features.
(FOOT::CTE CONTINUED C:: :: EXT PAGE) 8 004020 Nb
premised on the Cerr.iccien's recent
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the censcrucnces :f Class
~irenzin: preceedings.
The metien must fai_.
1.
The Licensing Board authorized issuance of a permit to construct St. Lucie Unit 2 in 1977, an action that we approved later that year.--3/ The Commission's elec-tion not to review our decision made it the agency's final
-5/
4/
action and it has now been upheld on judicial review. -
--1/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
The Annex concluded.that, although the consequences of Class 9 accidents might be severe, the likelihood of such an accident was so small that nuclear power plants need not be designed to mitigate their con-sequences, and, as a result, discussion of such accidents in applicants' Environmental Reports or in staff's environmental impact statements was not required."
Offshore Power Systems (Floating Nuclear Plants), CLI-79-9, 10 NRC (slip opinion pp. 2-3)
(September 14, 1979) (footn6Ee 6mitted).
2/
Id.
3/
LBP-77-27, 5 NRC 1038, affirmed, ALAB-435, 6 NRC 541; but see text accompanying fn.
7, infra.
__4/
See 10 C.F.R. 92.785(c).
--5/
Hodder v. NRC, 589 F.2d 1115 (D.C. Cir. 197 8) (decision without opinion), certiorari denied, U.S.
62 L.Ed.2d 36 (1979).
i e
9
T'.cre rc sir ren d ir - ir thir case, he'.te zer, two T'e=e are (1) the
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the stah;lity cf the ;;pl ::n:'s ele::rical grid.
The 6/
Commission instructed us to hear the former; we expressly retained jurisdiction to consider the latter when we other-wise affirmed the decision below. --7/
Intervenors filed the motion now before us in open hearing while we were taking evidence on the second question.
i The applicant and the staff remind us of intervenors' previous unsuccessful attempt to inject the " Class 9" issue j
into this case and point out that rejection of this conten-1 tion was expressly upheld on judicial review.--8/Those parties add that we have no authority to admit the contention in any event.
Pending completion of a rulemaking proceeding contem-plating the establishment of a new general policy on this
_6/
43 Fed. Reg. 15613,.15616 (April 14, 1978),
t
_7/
Order of October 28, 1977, modifying ALAB-435.
__5/
The court of ac.ceals' memorandum order to that effect is unpublished.
It is, however, reproduced in the appendix to applicant's brief.
_ 4 _
richt tho
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whether Class 9 questions are to be taken up.
They never-theless assert that we retain sufficient " jurisdiction" to trigger that determination either by (1) instructing the staff to advise the Commission whether the issue should be 10/
considered-or (2) " certifying" that question directly to 11/
~
the Commission.
They ask that we adopt one course or the other and stay completion of these proceedings until the Commission acts.-12/
--9/
Offshore Power, supra fn.
1, 10 NRC at (slip opinion at 9-10); accord, Public Service Co. of Dklahoma (Black Fox Station, Units 1 & 2), ALAB-573, 10 NRC (slip opinion at 29-32) (December 7, 1979).
--10/
A procedure we adopted in Black Fox, ALAB-573 (supra fn. 9), 10 URC at (slip opinion at 32).
_1_1/
See 10 C.F.R. 92.785(d).
12/
The relief sought by intervenors' amended prayer is an order from us:
"1.
staying completion of these proceedings until the Commissien has received and acted upon the staff's recommenda:1ons with respect to class 9 accident con-sideration c: the St. Lucie site or has adopted a new general policy; "2.
direc:ir7 the staff to advise the Commission with-in 30 days :f the reasons why it believes the conse.
quences cf __ ass 9 accidents should or should not be considered in this case and granting the other parties 30 days after that, advice is given to submit their views on the question to the Commission; and (FOOTNOTE CD::TI::UED OU NEXT PAGE)
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ig centr 711ed 5
{pe 7..cy 77 779 E* I Ch i L ~~r/Los ~.
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in this one, a licensing boarf suchcr :ed a construction perm :
after deciding a contention adversely te :n intervenor.
There as here, we approved the trial board's ruling and a court of appeals ultimately upheld the Commission's a,ffirmance of 13/
our decision.
The Seabrook intervenors later sought on grounds of supervening deveiopments to resurrect the issue previously interred by the board.
As do intervenors in this they argued that we were free to act because the exi'st-
- case, i
ence of discrete if unrelated issues still open before us 1
meant that the proceeding was not final.
We squarely rejected that argument.
We held in Seabrook that after we had relin-quished jurisdiction over a cause except for limited purposes, 12/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
"3.
certifying to the Commission as major and novel
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the questions of the standards to be applied by the staff in determining in which.' individual cases the environmental ~ consequences of Class 9 accidents should be considered,' the procedures by which such staff determinations are to be reciewed, and how the Commission's order in Offshore
- :: be implemented.
4 13/
LEP-7v-26, 3 NRC 857 (1976), affirmed, ALAB-422, 6 NRC 33 (1977), affirmed, CLI-71 -, -.:RC 1, affirmed J
sub nom. New England Coalition c.
"0, 582 F.2d 87 (1st Cir. 1978).
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- :: ce ar save fcr the added fa:ter tha: ther; intervcncrs have had a petition for certicrari denied as well, the case at bar is on all fours with Seabrook.--14/
It therefore heralds the result we must reach.
In the absence of a' rational and direct link to the limited matters over which we retain i
jurisdiction, we are without authority to consider new or reopened issues at this stage of the proceeding.,
- Accord, Virginia Electric and Power Co. (North Anna Station, Units 1 & 2 ),
ALAE-551, 9 NRC 704, 708-09 (1979).
We perceive no such relationship between the pending radon and grid stability issues and the environmental consecuences of Class 9 accidents.
We therefore may not accede to intervenors' reauest to take up that issue now.
This does not leave intervenors remediless.
The staff acknowledges in its brief (p. 8) that a Commission regulation, 10 C.F.R. 52.206, " permits a petition to be filed wit'h the Director of Nuclear Reactor Regulation who has discretionari authority to grant,the relief sought subject to Commission 14/
And is distinguishable from Black Fox (on which inter-venors rely), where the licensing board proceeding was only half completed. ALAB-573, supra fn.
9, 10 NRC at --
(slip opinion at 32).
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zu'missi:ns as a sh:.. :: ss petition anf rerpenseE, ths the papers are referred to the Director of Nuclear Reactor Regulation for his consideration under 10 C.F.R. 92.206.--15/
It is so ORDERED.-16/
FOR THE APPEAL BOARD b.
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Js n Bisnop Secre ry to the Appeal Board
--15/
The Director would make the recommendation to the Commission on whether to hear Class 9 events even were we to direct "the staff" to do so.
He have no j
reason to believe that he will act either arbitrarily or tardily; we intimate no views on the appropriate course for him to take.
I 16/
The outcome of this matter to one side, we wish to acknowledge the receipt of particularly helpful and well-reasoned briefs from all parties.
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