ML20198C339
| ML20198C339 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 12/30/1997 |
| From: | Gaukler P External (Affiliation Not Assigned), SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| CON-#198-18702 97-732-02-ISFSI, 97-732-2-ISFSI, NUDOCS 9801070249 | |
| Download: ML20198C339 (13) | |
Text
l 1970" December 30,1997 l*
UNITED STATES OF AMERICA 4-NUCLEAR REGULATORY COMMISSION oocxgfW Before the Atomic Safety and I icencing Board 5 DEC 3 0 W sEc1W#
In the Matter of
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iff
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PRIVATE FUEL STORAGE L.L.C.
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Docket No. 72-22
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(Private Fuel Storage Facility)
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ASLBP No. 97-732-02-ISFSI APPLICANT'S MEMORANDUM ON THE BOARD'S l
AUTHORIT7 TO ISSUE PARTIAL INITIAL DECISIONS PRIOR TO THE ISSUANCE OF THE SER OR EIS I.
INTRODUCTION l
In its October 17,1997 Memorandum and Order ruling on the State of Utah's motions to suspend the proceeding and for extension of time, the Atomic Scfety and l
Licensing Board (the " Board") requested the Applicant and the Staff to address the question of"tne Board's authority to issue a final initial decision on any safety, l
envimnmental, or other issues" prior to the Staffs issuance of a draft or final safety l
evaluation repost ("SER") or draft or final environmental impact statement ("EIS").
L Applicant Private Fuel Storage L.L.C. (" Applicant" or "PFS") files this memorandum in resporse to the Board's request.
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The practice ofissuing partial initiil decisions which constitute a licensing board's final initial decision on particular issues is well established under Commission precedent. As discussed below, except for certain issues arising under the National Environmental Policy Act ("NEPA"), the Board's authority to render partial initial -
decisions resolving issues raised by petitioners is not dependent on the Staff having -
issued draft or final SER or EIS. With respect to health and safety issues, the Board has complete authority to issue partial initial decisions resolving such 1. sues raised by petitioners in the absence of a draft or final SER. With respect to environmental issues under NEPA,'the Board may hear and resolve factual imues that do not pass on the ultimate cost-benefit balance required under NEPA.
II.
LEGAL DISCUSSION A.
Authority to Issue Partial Initial Decisions in the Absence,J a SER L
In the Statement of Considentions to the 1989 amendments to the Rules of Practice, the Commission directly addressed the role of Staff-prepared evaluations in l
l licensing hearings being conducted by its licensing boards. The Commission stated there that:
With the exception of NEPA issues, the sole focus of the hearing is on whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC staffperformance.
54 Fed. Reg. 33,168,33,171 (1989). Thus, the adequacy of the Staff s SER, araft or final, is not the subject of the hearing before the Board, and the Bourd is authorized to 2
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issue partial initial decisions on health and safety issues raised by petitioners absent the.
Staff: issuance of a draft or final SER. See e n., The Cur ='arn of the University of L Missouri (TRUMP S Project), CLI 95-1,41 NRC 71,121-21 (1995); Florida Power &
I loht Cnmaany (St. Lucie Nuclear Power Plant, Unit 1), ALAB-921,30 NRC 177,185
-.86 (l989).
1 In Uniyermitv of Mi =nuri, the intervenors had argued that tlw Staffs review of cer:ain materitd license amendment applications " constituted nothing more than a rubber-stamp approval" and that the presiding officer had erred in failing to remand license amendment applications back to the Staff"for alditional review and findings."- 41 NRC at 121. In that case, the Staff had approved the license amendments without issuing an SER and the intervenors had argued that the Staff was required "to make specific findiagn of fact or to explain its approval" of the license amendments in a SER or otherwise hL at 122-27. The Commission rejected these arguments.
In rejecting the intervenor's argument that the presiding officer should have rem =W the applications back to the Staff for further review and findings, the Commission stated as follows:
(T]he University rather than the Staff bears the burden of 4
proofin this proceeding. Consequently, the adequacy of -
Staff s safety review is, in the final analysis, not determinative of whether the application should be -
approved. Given these facts,it would have been pointless for the Presiding Officer to rule upon the adequacy of Staffs review....
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. Moreover, Sven assuming argando that Staff did conduct an insufficient renew, a denial of a meritorious application on that ground would be grossly unfair --
punishing the applicant for an error by Staff. The subject e
of the litigation in this proceeding is the University's entitlement to the license amendments, not the adequacy of Stafi's review of those amendments.
E at 121 22. The Commission sislarly rejected the argument that the Staff was reqvired to file specific written findings of fact or explanation for its decisions as follows:
Although such findings and explanation might have been helpful to both the Presiding Officer and the Parties, they are not required under our orders, policy statements, and regulations. Moreover, such fmdings and explanation, while useful in the earlier stages of a proceeding, would decrease in importance as the record develops, and would ultimately be completely superseded by the Presiding Officer's (and, later, our own) findings of fact and conclusions oflaw.
E at 122.
In a similar vein, the Appeal Board in St Lucie rejected an argument that a license amendment for the reracking of the spent fuel pool should not be issued for lack of adequate Staff review. In that case the Staff bad issued an SER but the SER did not i
"ind*p*~iaatly verify" criticality calculations done by the applicant in support of the license amaniment. Set 30 NRC at 185-87. The Appeal Board rejected arguments made by the intervenor that such independent staff verification was required:
Nor is there any basis for [intervenor's] apparent claims that the applicant's criticality calculations are somehow suspect and cannot form the basis for the Board's findings because the staff did not i%tly verify them. With minor exceptions not relevant here, it is the applicant that bears the ultimate burden of proof in NRC operating license 4
0 amcr.irer.t proceedings and not the staff. Thus, contrary to the intervenor's apparent belief, the adequacy of Jae -
staff s review is not the proper focus for such proceedings.
- 30 NRC at 186.
Thus, the above authority makes it abundantly clear that the adequacy of the License Application - and not the Staffs health and safety review in the SER - is the subject of the litigation in this proceeding. The Staffs formal review in a published SER is not a prerequisite for the Board to issue partial initial decisions on contested health and safety issues, because the Board's findings of fact sad conclusions oflaw would in acy event supersede the Staffs analysis and con,:lusions with respect to contested issues.
- Further, since inadequate Staff review cennot be the grounds for denial of a meritorious license application, any delays in such review should not be cause for delaying the Board's resolution of contested health and safety issues.
Accordingly, the Board should establish a procedure for scheduling the orderly and final resolution of contested health and safety issues that is independent of the Staffs schedtded completion and issuance of a draft or final SER. For example, the Staff may be in a position to present written testimony on particular issues prior to issuance of a draft or final SER. The Staff may also issue " partial" SERs which would allow the Staff to present its views on certain issues in advance of completwn of the remainder of the SER. The Board has inherent authority under 10 C.F.R 2.718 to schedule the hearmg and resolution of these issues.
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6 B.
Authority to Issue Partial Initial Decisions in the Absence of an EIS While there are certain constraints on the NRC Staff taking final positions on environmental issues arising under NEPA, the 1989 araded Rules of Practice and Commission precedent contemplate that the parties will proceed to litigate factual contentions arising under NEPA based on an applicant's environmental report. Scc 54 Fed. Reg, at 33,171 72. The Statement of Considerations cite and amended Rules of Practice follow the Commission's decision in Duke Power Comnanv (Catawba Nuclear Station, Units 1 and 2), CLI 83 19,17 NRC 1041,1049 (1983) which recognized that the factual aspects of environmental issues can be raised and litigated before the EIS is prepared. As stated by the Commission iri that case:
Because the adequacy of(a DES or FES) cannot be determined before they are prepared, contentions regarding their adequacy cannot be expected to be proffered at an earlier stage of the proceeding before the documents are available. But this does not mean that no environmental contentions can be formulated before the staffissues a DES or FES. While all environmental contentions may, in a general sense, ultimately be challenges to the NRC's compliance with NEPA, face n= pacts of narticular issues can be ralaad before the DES is prenared. As a practical matter, much of the information in an Applicant's ER is used in the DES.
Id.(emphasis added).
The regulation which places certain com,traints on the NRC Staff from taking final positions on environmental issues arising under NEPA is 10 C.F.R. Q 51.104(a)(1).
This regulation provides that "(i]n any proceeding in which (i) a hearing is held on the 6
1-proposed action, (ii) a final (EIS) has been prepared in connection with the proposed action, and (iii) matters within the scope of NEPA... are in issue, the NRC staff may not ofter the final (EIS) in evidence or present the position of the NRC staff on matters within the scope of NEPA... until the final (EIS) is filed with the Environmental Protection Agency, furnished to commentiti agencies and made available to the public." This provision, promulgated in 1984, was a revision of former 10 C.F.k. 6 51.52(a).'
Noddng in 10 C.F.R. I 51.104(a)(1) precludes an applicant and intervenors from litigating facual aspects of envinmmental contentions based on the appl! cant's environmental repon. Further, properly interpreted, this regulation should permit the NRC Staff to present evidence prior to the issuance of an EIS on preliminary factual issues apart from the ultimate cost benefit balance required by NEPA. Scc Philadelnhia Flecide Cnmnany (Limerick Generating Station, Units 1 and 2), ALAB 785,20 NRC 848,862-66 (1984). As recognized by the Appeal Board in I imerick. no requirement of
' Former 10 C.F.R. I 51.52(a) provided as follows:
In say proceeding in which a draft environmental impact statement is prepared pursuant to this part, the draft environmental impact statement will be made available to the public at least fifteen (15) days prior to the time of any relevant hearing. At any such hearing, the position of the Commission's staff on matters covered by this part will not ba presented until the final environmental impact statement is furnished to the Environmental Protection Agency and commenting agencies and made available to the public. Any other party to the proceeding may preser.t its case on NEPA matters as well as on radiological health and safety matters prior to the end of the fifteen (15) day period.
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i NEPA requires environmental hearings to await the preparation and circulation of the Staff s final EIS: " Generally speaking, NEPA does not address the timing of an i
enviror. mental statement, as long as it is available by the time of the agency's j
t recommendation or report on the proposed federal action." Id. at 866.
j i
in the 1 imadrk case the Appeal Board upheld the licensing board's considerat on i
of the environmental impacts of operating a supplementary cooling water intake for the 4
Limerick plant ador la the issuance of a draft or final EIS. In that case the Staff, L
notwithstanding the preclusion of former 10 C.F.R. f S t.52(a)(the applicable regulation at that time) on presenting "the position of the Commission's staff' on NEPA matters until the issuance of the final EIS, filed written testimony concerning this issue. Ses 20 NRC at 865. Further, although the licensing board had commenced the environmental hearings prior to the issuance of the draft EIS - directly contrary to the provisions of former 10 C.F.R. ( $1.52(a) but not revised 10 C.F.R. ( 51.104(a)- the Appeal Board noted that it was within the discretion of an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business when in a g!ven case the ends ofjustice required it. E at 864 'Ihe Appeal Board found the licensing board's consideration of the environmental issues related to the operation of the supplementary cooling water intake to be appropriate in the circumstances of that case, emphasizing that the resolution of these issues did not involve " passing on the ultimate cost / benefit balance required by NEPA" which "must await the issuance of the staffs environmental statement." E at 864,866.
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9 1he LhnsdrA case therefore reflects that it is within the capability of a licensing board (and certainly the Commission could so direct) to consider environmental issues l
prior to the issuance of the EIS by the Staff so long as it does not consider the ultimate NEPA cost benefit balance of the proposed action. This is further supported by other Commission precedent, such as Catawha. som,17 NRC at 1049, discussed above, which held that the factual aspects of environmental issues could be raised and litigated based on the environmental report. Saulso Alllad C===l N'd-W- (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296,2 NRC 671,681 ("nothing either in NEPA or in the Commission's rule.i... would automaticrlly preclude the hearing of all environmental issues while the impact statement is being redone as to some").
1hl conclusion is in no way undermined by the promulgation of 10 C.F.R. I 51.104 in 1984. The I imar:ck decision (issued September 26,1984) was subsequent to the promulgation of f 51.104 (March 12,1984). And both i 51.104 and the former i
' 51.52(a) contain essentially the same language linidag the issuance of the EIS to the presentation of the Staffs position. Compass former 51.52(a)("the position of the i
Commission's staff will not be presented until" the EIS is furnished to EPA, commenting agencies and the public), shh { 51.104(a) ("the NRC Staff may not... present the position of the NRC Staff on matters within the scope of NEPA.. until the final (EIS] is filed with" EPA, commenting agencies and the public). Therefore, the Limerick rationale r
_ applies equally to both the old and the new regulations.
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Thus, the Applicant believes that under the t' b a pfvdna @ p. ad et:
consider factual issues raised by various envirorwg; eJ.Arden
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actual environmental impacts of the proposed actioq. ph a the Staff s issuance of the EIS. Nothing in the Commission's rules or regulations preclude an applicarit and -
i intervenors from litigating such factual issues prior to the issuance of an EIS. Indeed, as reflected in Calambs and reaffirmed by the Statement of Considerations to the 1989 amended Rules of Practice, the actual contentions filed with re:gect to environmental issues are based on an appicant's environmental report. Further, as in Limaghi, the Staff could prepare and present testimony with respect to such preliminary factual issues prior to the issuance of the final EIS Such a course of action would be keeping with the Commission's general intent that its " proceedings be conducted expeditiously... and that its procedures maintain sufficient flexibility to accommodate that objective." 10 C.F.R. Part 2, App. A.3 The Applicant believes that a determination of which - if any -
environmental issues might be so handled should await the Board's rulings on the admissibility of contentions.
III.
CONCLUSION For the reasons stated above, the Board has the authority to schedule the orderly l
consideration and resolution of contested health and safety issues that is not dependent on i
3 While the specific provisions of Appendix A concern licensing proceedings for production and utilization facilities under 10 C.F.R. Part 50, this expression of general Commission policy would apply equally to other Commission licensing actions.
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the Staff s scheduled completion and issuance of a draft or final SER. With respect to environmental issues, the Board may hear and resolve prior to the Staff s issuance of the EIS factual issues that do not pass on the ultimate cost benefit balance required under
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NEPA.
4 Respectfully submitted, t
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Jay E. Silberg' Emest L. Blake, Jr.
Paul A.Gaukler SHAW, PllTMAN, POTTS &
TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663 8000 Counsel for Private Fuel Storage L.L.C.
Dated: December 30,1997
$34844 i
4 11
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION S
a ikfore the Atomic Safety art I icensing Bogd D
199
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- %EYm In the Matter of
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PRWATE FUEL STORAGE L.L.C.
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Docket No. 72 22
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(Private Fuel Storage Facility)
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ASLBP No. 97 732 02 ISFSI CERTIFICATE OF SERVICE I hereby certify that copies of the " Applicant's Memorandum on the Board's Authority to issue Partial Initial Decisions Prior to the issuance of the SER or EIS" dated December 30,1997 were served on the persons listed below (unless otherwise noted) by facsimile with conforming copies by US mail, first class, postage prepaid, this 30* day of December 1997.
O. Paul Bollwerk 111, Esq., Chairman Dr. Jerry R. Kline Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panet Atomic Safety and Licensing Board P-U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissiot.
Washington, D.C. 20555-0001 Washington, D.C. 20555 0001 Dr. Peter S. Lana
- Adjudicatory File Admhistsadve Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regidatory Commission U.S. Nuclear Regulatory Comminion Washington, D.C. 20555 0001 Washington, D.C. 20555-0001 j
t Catherine L. Marco, Esq.
- Charles J. Haughney Sherwin E. Turk, Esq.
Acting Director, Spent Fuel Project Office Office of the General Counsel Office of Nuclear Material Safety and Mail Stop O-15 B18 Safeguards U.S. Nuclear Regula'.ory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20.iS5 Washington, D.C. 20555 Denise Chancellor, Esq.
Jean Belille, Esq.
Assistant Attomey General Ohngo Gaudadeh Devia Utah Attorney General's Office Land and Water Fund of the Rockies 160 East 300 South,5* Floor 2260 Baseline Road, Suite 200 P.O. Box 140873 Boulder, Colorado 80302 Salt Lake City, Utah 84114 0873 John Paul Kennedy, Sr., Esq.
Danny Quintana, Esq.
Confederated Tribn of the Goshute Skull Valley Band of Goshute Indians Reservation and David Pete Danny Quintana & Associates, P.C.
1385 Yale Avenue 50 West Broadway, Fourth Floor Salt Lake City, Utah 84105 Salt Lake City, Utah 84101 Clayton J. Parr, Esq.
Office of the Secretary Castle Rock, et al.
U.S. Nuclear Regulatory Commission Parr, Waddoups, Brown, Gee & Loveless Washington, D.C. 20555 0001 185 S. State Street, Suite 1300 Attention: Rulemakings and Adjudications P.O. Box 11019 Staff Salt Lake City, Utah 84147-0019 (original and two copies)
Diane Curran, Esq.
2001 S Street, N.W.
Washington, D.C. 20009
- By U.S.mailonly
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