ML20198K729

Memorandum & Order Directing That Applicants Suppl 850404 Motion to Terminate OL Proceeding within 30 Days of Svc of Order.Nrc May Respond to Applicants Suppl within 15 Days Following Svc of Suppl.Served on 860602

ML20198K729
Person / Time
Site:	Marble Hill
Issue date:	05/30/1986
From:	Smith I Atomic Safety and Licensing Board Panel
To:	PSI ENERGY, INC. A/K/A PUBLIC SERVICE CO. OF INDIANA, WABASH VALLEY POWER ASSOCIATION, INC.
References
CON-#286-390 83-487-02-OL, 83-487-2-OL, OL, NUDOCS 8606040119
Download: ML20198K729 (7)

Text

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/1 LB 5/30/86 '

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Ivan W. Smith, Chairman --

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Gustave A. Linenberger, Jr. - - 2 I)

Dr. Oscar H. Paris ~, ,

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In the Matter of )

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PUBLIC SERVICE COMPANY OF INDIANA, INC.) Docket hos. 50-546-OL WABASH VALLEY POWER ASSOCIATION, INC. ) 50-547-0L

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(Marble Hill Nuclear Generating ) ASLBP No. 83-487-02 OL Station, Units 1 and 2) )

May 30, 1986 MEMORANDUM AND ORDER DIRECTING BRIEFS SERVED JUN 11M

Background

We have before us the April 4, 1985 motion by the Public Service Company of Indiana, Inc. and Wabash Power Association, Inc. to

" terminate this operating license proceeding" for the Marble Hill Nuclear Generating Station. The same motion purports to inform the Licensing Board that Construction Permits Nos. CPPR-170 and 171 for

! Marble Hill Units 1 and 2 had been " surrendered" by letter of March 1, i

1985 to the Director of Nuclear Reactor Regulation. A copy of a Marble Hill site stabilization plan was appended to the motion.

The NRC Staff responded to the motion on Aprf1 24, 1985 by requesting that the Board defer ruling on the motion until the Staff has an opportunity to review and to approve a site restoration plan.

Although, as noted, Applicants' motion, by its terms, seeks only to 8606040119 860530 goa aoocko 9 =6 g> g

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terminate the operating license proceeding, the Staff assumed that Applicants intend to invoke the jurisdiction of this Board to withdraw the application for the Marble Hill construction permits. None of the intervenors commented on the motion.

On March 28, 1986 the Staff filed a very succinct supplemental answer supporting the motion to terminate.

The pleadings before us are inadequate in two important areas. The Board directs the parties to supplement their pleadings with additional information outlined below.

Jurisdiction The strong inference to be drawn from the motion to terminate the operating license proceeding is that the Applicants regard that proceeding to be moot, having surrendered the construction permits to the Director of Nuclear Reactor Regulation (NRR). The Staff however, citing Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3),

ALAB-668, 15 NRC 450 (1982), assumes that the motion is directed to the construction permits and that the Licensing Board has jurisdiction over the matter. Staff Response, n.1. The Board does not share the Staff's assumption. The Applicant in Perkins filed joint motions before the Licensing and Appeal Boards specifically for leave to withdraw its application for construction permits. The Appeal Board deferred to the Licensing Board to pass upon the motion in the first instance. Id.

at 451.

We believe that the Marble Hill Applicants intend only to invoke the jurisdiction of the Licensing Board for the sole and ministerial purpose of terminating the operating license proceeding. The pleading is styled simply a " motion to terminate proceeding." There is no reference whatever to 10 CFR 9 2.107, the traditional authority under which the holder of a construction permit would " request a withdrawal of an application." However, in view of the Staff's position and in view of the fact that the Applicants submitted their site stabilization plan to us as well as to the Director of NRR, we believe that a clarification is in order.

Therefore we direct the Applicants to supplement their motion explaining exactly what they seek from the respective components of the Nuclear Regulatory Comission and to support their supplement by citations to the controlling law. We direct the NRC Staff to report on the status of the construction permits " surrendered" to the Director of NRR and to state its position on the Board's jurisdiction after the Staff has examined the Applicants' supplement.I 1

Specifically the question is not whether this Board, constituted as an operating license board, has jurisdiction over a construction permit matter. See Perkins, supra. The question is whether the Applicants, having tendered the construction permits to the Director of NRR, have invoked the Director's jurisdiction to the exclusion of the Licensing Board's jurisdiction.

The Board's Responsibility Pending further advice from the parties, the Board assumes that the Director of NRR has exclusive jurisdiction over the construction pennits. If, however, it turns out that a request for the withdrawal of the construction permits comes before this Board pursuant to 10 CFR

$ 2.107, we inform the parties that the record now before us would be inadequate.

The Marble Hill site, consisting of about 960 acres, sits on a bluff overlooking the Ohio River. According to the partial initial decision authorizing limited work activities at the site, the construction associated with Marble Hill was to have preempted about 500 acres of farmland, most of which was prime land.2 Today, according to the Staff's Environmental Review, the site "could be characterized as being typical of any abandoned large industrial facility." Attachment to Staff's Supplemental Answer.

When the Staff in 1985 initially responded to the motion to terminate the proceeding, it informed the Board that it intended to examine the Applicants' restoration plan for the site. The Staff then cited 10 CFR 6 2.107(a) and noted that "an application may be withdrawn subject to the imposition of appropriate conditions, including terms and 2 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), LBP-77-52, 6 NRC 294, 317 (1977).

conditions dealing with site restoration." Staff Response at 3, n.6.

In support of its view, the Staff called to the Board's attention Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 2 and 3), ALAB-65?,

14 NRC 627 (1981). There the Appeal Board approved the action of a Licensing Board requiring the applicant to take certain non-controversial measures to restore the Davis-Besse site as nearly as possible to the pre-LWA state, and to enhance the site's qualities as a wildlife habitat.

Also in 1985 the Staff infonned the Board that the Applicants' plan to undertake remedial action in connection with its surrender of the 3

construction permits is similar to the situations in Bailly and Black Fox.4 Staff Response at 3-4, n.7 and 8. In Bailly the Licensing Board imposed conditions requiring substantial but uncontroversial site restoration. 15 NRC at 768. In Black Fox the Licensing Board went so far as to require the dismantling of site improvements not included in a plan for future use of the Black Fox site. Again, the Black Fox restoration plan was uncontroverted. 17 NRC 410, 412.

3 Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1 LBP-82-29,15 NRC 762 (1982).

4 Public Service Co. of Oklahoma, Associated Electric Cooperative, Inc. and Western Farmers Electric Cooperative (Black Fox Station, Units 1and2),LBP-83-10,17NRC410(1983E

In sharp contrast to its position in 1985, the Staff, in its recent supplemental answer, supports the motion to terminate the proceeding based upon a site stabilization plan leaving the Marble Hill site essentially unrestored. The Staff now infoms us enigmatically that "there will be no significant detrimental environmental impact on or offsite resulting from tennination of the proceeding." Affidavit of Dr. Robert B. Samworth at 2.

For their part, the Applicants note that no decision has been made for the future use of the site. The stabilization plan explains that there are no provisions for removal of permanent buildings and restoration of paved and graveled areas. Attachment to Motion.

Clearly if the matter comes before us under 10 CFR 6 2.107(a), we will be required to exercise some judgment as to the terms for withdrawal of the construction permit application. But the papers before us provide no guidance. Accordingly, the parties may, if either should so elect, provide such guidancd in their forthcoming pleadings.

0 Our discussion of Davis-Besse, supra, Bailly, supra, and Black Fox, supra, should not suggest that tne Board is predisposed to a view that would require restoring the Marble Hill site to its pre-LWA state. Two members of this Board constituted the quorum in United States Department of Energy, Project Management Corporation, Tennessee Valley Authority (Clinch River E reeder Reactor Plant),

LBP-85-7, 21 NRC 507 (1985). There the Licensing Board approved a site redress plan which w~s, in essence, a site stabilization plan preserving the Clinch River site for some undetermined future industrial use.

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i IT IS THEREFORE ORDERED that, within 30 days of the service of this order, the Applicants supplement their motion to terminate this proceeding. The NRC Staff may respond to Applicants' supplement within 15 days following the service of Applicants' supplement.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Ab Ivan W. Smitt,' Chairman ADMINISTRATIVE LAW JUDGF Bethesda, Maryland May 30, 1986

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