ML20147D625

Applicant'S Motion to Certify to the NRC Question Decided by Aslab in ALAB-489 Is Granted.Held in ALAB-489 That Class & Accidents Are Proper Subj for Consideration in Staff'S Environ Statement Re Floating Nuc Pwr Plant Appl

ML20147D625
Person / Time
Site:	Atlantic Nuclear Power Plant
Issue date:	09/29/1978
From:	Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
NUDOCS 7810140148
Download: ML20147D625 (4)

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g pt31JO DGCUMBU N'S UNITED STATES OF AMERICA os NUCLEAR REGULATORY COMMISSION g N qqf  %

ATOMIC SAFETY AND LICENSING APPEAL BOARD 2 C) N y 75 Richard S. Salzman, Chairman - SN L-effj. [# [6 Dr. John H. Buck g " '

Michael C. Farrar CO * '

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In the Matter of )

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OFFSHORE POWER SYSTEM 3 ) Docket No. STN 50-437

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(Floating Nuclear Power Plants) )

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Messrs. Barton Z. Cowan, Thomas M. Daucherty, and John R. Kenrick, Pittsburgh, Pennsylvania, for the applicant, Offshore Power Systems.

Mr. Anthony Z. Roisman, Washington, D. C, for intervenor National Resources Defense Council.

New Jersey Attorney General John J. Degnan,and ,

Deputy Attorney General Richard M. Hluchan, '

Trenton, New Jersey, for intervenor the State of New Jersey.

Messrs. Martin G. Malsch and Mark Staenberc for the Nuclear Regulatory Commission staff, t MEMORANDUM AND ORDER (On Motion for Reconsideration or Certification to the Commission) ,

Septerher 29, 1978 (ALAB-500)

1. Offshore Power Systems (OPS) noves for recon-sideration of part of our decision in ALAB-489. We are requested to reexamine our holding that the staff may 78 l@ l4pi 48

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.2- i B ' consider'" Class;9 accidents" in itsifinal environmental 1 statemen?. on OPS's application to manufacture 1 floating ]

nuclear power plants. ALAB-4 89, 8 NRC__(August 21, 1978). 1

.The motion is opposed by the. Natural Resources Defense :i Council 1(NRDC) , the ' State 'of' New Jersey, and the staff. i After a' careful' review of all'the arguments presented, both the majority: of the Board and' the dissenting' member. remain convinced of their' respective positions as set forth in 1/

ALAB-489. Accordingly,.the motion to. reconsider is denied ~~

2. In the event:we were to-deny;its motion to reconsider, a

OPS asked us to. certify our Class 9 ruling to the Commission for'its determination. See 10 C.F.R.. E2.785 (d) .- The' staff.

interposes no objection but the NRDC and New Jersey are opposed. NRDC particularly stresses that Commission-review-should await the development of a full' factual record "so the Cormission .can address (the Class 9' accident) issue in:

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1/ The applicant-also asks that we preclude imposition of l

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those license conditions ~ proposed br the staff'which l rest on the consideration of Class'9 accidents. Such j relief is premature and,'in any event, unnecessary at 4 this juncture. As we'took care to stress in ALAB-489: )

"Our ruling -- that the consequences of a class 9  !

accident'may be' considered in this~ environmental

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.l statement -- carries ;with L it no connotation that the

. staff's judgmentsfexpressed there are necessarily- i sound,-much less that its rccommended license condi-

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tions are-warranted.- These are matters yet-to be  !

explored in the pending proceedings before'the Licensing i

, Board. 10 C.F.R..s51.52." ALAB-489, 8 NRC'at--~ '( slip . I' opinion at 57).

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i the context'of specific facts.and a specific case." New Jersey contends that the issue is both narrow and unique 1 to this one; proceeding'and does not merit commission review.

We exercise our authority to certify questions to

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a burdened Commission sparingly. A number of factors, however,-impel that action in this case. First, considera-tion of Class 9 accidents in an environmental statement l is a novel action on the staff's part. Second, New Jersey's  !

e contrary assertions notwithstanding, we think the staff's decision to look at Class.9 accident does involve a " major

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• question of policy" that may have ramifications beyond ,

j this case. To be sure, as NRDC suggests, a fuller record might assist'in deciding what policy.the Commission'should adopt. However, the question is not what the policy ought to be but, rather, what policy gov >:rns CPS' pending appli-cation. That question is manifestly ripe now. Third, as ALAB-489 reflects, the members of this Board give diver-gent readings to current policy in this area, a division attributable in no small measure to the ambiguous character, ,

history and status of the " annex" in which it is set forth.

See, Vermont 1 Yankee Nuclear Power Corp. (Vermont 2/ Yankee

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Station) , ALAB-4 21, 6 NRC 25, ~77 (1977);

Consolidated Edison Co. of New York (Indian Point Generating Unit No, 3) , ALAB-186, 7 AEC 245 (1974).

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Only the Commission itself can clarify this. Finally, because we brought the matter before us by certification, the parties themselves are precluded under the present Rules.of Practice from. petitioning the Commission for review of ALAB-489' . Pacific Gas and' Electric Co. (Diablo Canyon Plant, Units 1 and 2), CLI-77-23, 6 NRC-455 (1977);

10 C.F.R. 92.786(b).

Accordingly, OPS's motion to certify to the Commission the question we decided in ALAB-489 -- that Class 9 accidents are a proper subject for consideration in the staff's envi-ronmental statement on the floating nuclear power plant 3/ j application -- is granted.-~

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It is so ORDERED.

FOR THE APPEAL BOARD My &

Marg'aret.E. Du Flo Secretary to the Appeal Board

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3/ The' members of the Board acknowled ge the helpful briefs and arguments presented by all the parties both in the main case and on motion for reconsi-deration. That our decision on the merits'is divided ~ reflects the difficulty of the question prevented and is not the fault of the' thorough and comprehensive presentations of the litigants.

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