ML20209B400
| ML20209B400 | |
| Person / Time | |
|---|---|
| Site: | Midland, 05000000 |
| Issue date: | 06/03/1982 |
| From: | Trubatch S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20150F172 | List: |
| References | |
| FOIA-84-96, TASK-AII, TASK-SE ALAB-674, SECY-82-224, NUDOCS 8206090262 | |
| Download: ML20209B400 (10) | |
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$(C 3 June 1982 SECY 82-224
! ADJUDICATORY 155UE L (Information) gq '/(,
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y~ c s..;tg *. y Fcre The Commissioners '$\
4 _ g From: Sheldon L. Trubatch Acting Assistant General Counsel
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Subject:
REVIEW OF ALAB-674 (IN THE MATTER OF CONSUMERS POWER COMPanxi kD[h I Facility: Midland Plant, Units 1 & 2 p
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Purpose:
To inform the Commission of an Appeal Board E decision for which no petitions for review have P been filed and which, in our opinion, should not be reviewed.*
i Petitions For
. Review: None v
Review Time Empires June 14, 1982 Discussion: In ALAB-674, the Appeal Board affirmed the Licensing Board's-denial of intervenor Marshall's request to halt further construction of the Midland Plant pending resolution of the potential effects of an electromagnetic 0 This paper has been issued as an adjudicatory information item '
because the General Counsel considers this to be a matter of l minor significance.
CONTACT: Beverly Segal, OGC
, 4-3224
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pulse (EMP) on the facility, LBP-82-28 15 NRC
. , (April 12, 1982). The Licensing Board I found that the substance of the EMP issue was k beyond the scope of this consolidated proceeding l
which is limited to soil settlement issues arising from Consumers' application for an l{ ,
operating license and the NRC staff's Order modifying the construction permits (hereinafter j' "OM/0L Proceeding"). 1/
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4 Additionally, the Licensing Board cited 10 CFR 50.13 2/ as an express bar to consideration of i
1/ Initially, the staff raised the soil settlement issue as an I enforcement matter. Order Modifying Construction Permits ;
. (December 6, 1979). After Consumers requested a hearing on the P
- staff's order, the Constission delegated its authority to the b
Licensing' Board for the operating license proceeding. Notice
[ of Bearing, 45 Fed.< Reg. 18214 (March 20, 1980), as amended, 45 Fed. Reg z 35949 (Mey 29, 1980). That board first initiated the
[* ON proceeding on the-staff's. order. Subsequently, the Licensing Board consolidated the ON Proceeding with the soil settlement issues.in the OL Proceeding to " avoid repetitive l , litigation of factual questions." Prehearing Conference Order l 4 3-(October 24', 1980).
In ALAB-624, 12 WRC 680 (1980), the Appeal Board upheld the Licensing Board's reiection of Mr.. Marshall's petition to F
intervene in the CN Proceeding because his only contention t related to the issue of Class 9 accidents which was beyond the
, ; " narrow focus" of that procccding. Id,. at 681 3/ 10 CFR 50.13 states:
Attacks and destructive acts by enemies of the United Stateer and defense activities.
An applicant for a license to constrnet and operate a production or utilization facility, or for an amendment to such license, is not required to provide for design features or other measures for the specific purpose of protection against the effects of (a) attacks and l, destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person, or (b) use or
!, deployment of weapons incident to U.S. defense activities.
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the EMP issue. The Appeal Board affirmed the i denial of Mr. Marshall's request, but based its I decision on the principle that the requested I remedy of suspension of construction. was outside the jurisdiction of this Licensing Board. The Appeal Board suggested that the proper procedure
- for Mr. Marshall to request relief would be for l him to file a petition to the Director of NRR under 10 CFR 2.206.
i In our view, the Appeal Board's decision is l l ; correct. To the extent that the Licensing Board I 6
for the OM/OL Proceeding has jurisdiction over construction, it is limited to soil settlement issues. See footnote 1. Jurisdiction over all other aspects of construction was vested in a i separate Licensing Board which resolved '
construction-related health and safety issues some time ago. 3/ Under NRC precedent, these '
i-l~ circumetances precluded the Licensing Board for the OM/OL Proceeding from asserting jurisdiction to grant the suspension of the construction l permit and required the petitioners to seek a
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remedy-under 10 CFR 2.206. In Houston Light and Power Company (South Texas Project, Units 1 &
2), ALAB-381, 5 NRC 582 (1977) the Appeal Board held that a Licensing Board cannot reopen a 3 /.
- LBP-72-34, 5 ABC 214 (1972), aff'd, 6 AEC 331 (1973). The Licensing Board for the construction permit proceeding on December 22, 1981 had jurisdiction over only two remaining issues, alleged attorney misconduct at the remand proceeding and radon. Unpublished Comunission Memorandum and Order l (November 6,1978) . That Licensing Board issued a decision on these issues more recently, but its jurisdiction will not terminate until the time expires for Commission review of an Appeal Board decision on that Licensing Board decision. 10 CFR l
- 2. 717 (a) . However, the pendency of those issues does not
' authorize the Licensing Board for the construction permit to consider the EMP issue. Public Service Company of New Hampshire, et al. (SeabroW5Eation, Units 1 and 2) , ALAB-513, 8 NRC 694, 695-6 (1978).
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terminated conotruction permit proceeding to consider antitrust issues. 4/ The Appeal Board based that decision on the policy that there must be an end to litigation sometime and was concerned that finality would be disturbed if the Licensing Board could reopen a terminated construction permit proceeding to examine a new i safety or environmental question. 5 NRC at 591.
This reasoning is applicable to this proceeding.
The Licensing Board for the construction permit resolved all safety matters raised before it and issued the construction permits. The staff l
raised the soil settlement issue much later as an enforcement matter which the Commission then delegated to the Licensing Board for the operating license proceeding. Under these l circumstances, the Appeal Board acted
- consistently with NRC practice in holding that the Licensing Board for the OM/OL Proceeding lacked. jurisdiction to consider whether to halt
- construction pending consideration of EMP.
For these reasons, we believe that the Appeal Board's decision does not warrant review.
Recemmendation: No review.
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Sheldon L. Trubatch Acting Assistant General' Counsel d'tb [ %
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Attachment:
ALAB-674 4/
~ g also, Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Jnits 1 & 2), ALAB-530, 9 NRC 261 (1979) (Appeal Board has no . jurisdiction to reopen a hearing after final agency action); Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALABS13 (1978);
l Carolina Power and Light (Shearon Harris Nuclear Power Plant),
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DISTRIBUTION h
Eommissioners Commission Staff Offices l l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
( ATOMIC SAFETY AND LICENSING APPEAL BOARD j -
Administrative Judges: .
i Christine R. Kohl, Chairman -
Dr. John H. Buck .
Thomas S. Moore
)
In the Matter of )
) l CONSUMEAS POWER COMPANf~ ) Docket Nos. 50-329 OM & OL l
) *50-330 OM & OL (Midland Plant, Units 1 & 2) )
)
MEMORANDUM AND ORDER May 5, 1982 . .
(ALAB-674)-
The Mapleton Intervenors, by letter from their representative Mr. Wendell H. Marshall, dated April 21, 1982, " appeal" a Licensing board memorandum and order
- l denying their request to halt further construction of the -
Midland facility. See 15 NRC _ , LBP-82-28 (April 12, 1982). Intervenors argue that construction should stop pending resolution of the potential offacts on Midland of an electromagnetic pulse (EMP) ostensibly generated from the high altitude detonation of a nuclear weapon. The Licensing Board found that "this matter is not relevant to the soils.
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j matters which are presently before this Board," 1I - and,
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~ beyond.that, consideration of dip in this operating license h[ ' proceeding is. expressly barred by a Commission regulation.
.t H. at _ (slip' opinion, p. 2)~.3 /
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f- The Licensing Board memorandum explains.why, in its 1.
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! - view, the substance-of the EMP issue is beyond the. scope of Ir We think tho'better answer, fg ;- this_ licensing proceeding.
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f_ however,,is that.intervenors have requested a remedy that m
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the Board;is not authorized to grant - -i.e., stopping the je h l[
construction already under way at Midland and effectively t - ,
t 1 J/ This~is a combined operating license application and construction permit modification proceeding. The
' ~1atter portion is expliciti confined to soil
. settlement issues. See Order Modifying Construction Permits (December 6, 1979) and Notice of Hearing, 45 a F , .
18214 (March 20, 1980), as amended, 45 Fed.
9-(May 28, 1980). It was consolidated with the .
l operating license application, which also involves numerous soil settlement issues, in order to " avoid repetitive litigation.of factual questions." See Prehearing Conference Order (October 24, 1980), p. 13.
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J/ . See '10 CFR 50.13, which provides:
<t An applicant for a license to construct
' and operate a production or utilization facility, t or for in amendment to such license, is not re-i quired to provide for design features or other rc measures for the specific purpose of protection iF against the effects of (a) attacks and destruc-
- tive acts, including sabotage, directed against I the facility by an enemy of the United States,.
whether a foreign government or other person, j
or (b) use or /.aployment of weapons incident to U.S. defense activities.
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- suspending the previously issued construction. permit, f (;ending -resolution of the dip issue.---
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A licensing board for an operating license proceeding,
,iI^ y - Jeuch as the one' involved here, is. limited to resolving (c-- "
- matters that are raised therein as legitimate contentions by 4 L, .the parties or by'the board sua sponte. 10 CFR 2.760a; g ,
, [ ', Cona9114sted Edison' Co.-- of New York (Indian Point, Units 1, E1 - - .
2 ti3) ,; & LAB-319, - 3 NRC 188, 190 (1976).
a fk%.; Pursuant to that i
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N ada'te, a board can authorize or refuse to authorize the
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fissuance.of an operating license. It does not, however, p
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.have general jurisdiction over the alregdy authorised -
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ongoing construction of the plant for which an operating
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y+ ' license application is pending, and it cannot suspend such a ls . pre 0iously_ issued permit. 4; Thus, the Board below was I: ,
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i J / See, ., Marshall letters to the Licensing Board
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. ,_ dated- r 16, 1981; March 22, 1932; March 25,
% . =1982. lIntervenors do not purport to seek admission of
- 1 $T > ,a contention relating to the EMP issue.
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The connaission or an' appeal board, of course, has the
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!; power to suspend or stay the issuance of a construction
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- rait in conjunction with its review of a licensing 5 are decision authorizing that permit, or upon court romand of such'a decision. See, e.g., Public Service
> T;' Co. of New Esseshire (Seabrook Stats.on, Units 1 and 2), '
CLI-77-27, 5 sam 715 (1977); id., ALAE-366, 5 NRC 39, c 'aff'd wnth modifications, CLI""77-8, 5 NRC 503 (1977);
!! Unica E; .ectric Co. (Callaway Plant, Units 1 and 2), l
! i ALaa-330, 4 ass 371. (1976) . l p,
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[ powerless to grant the relief that intervenors requested.-5_/
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~ ghis does not mean that intervenors are tot' ally without
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i; see'urse o in:their attempt to halt construction pending y
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dp secolationiof the EMF . issue. The .Cossaission's -Rules of
[ IPractice fspecifically provide (10 CFR 2;206(a)):
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b . Any person may1.. file a request'for the Director of Nuclear Reactor Regulation,; Director of Nuclear
-Material Safety and Safeguards, Director, Office:
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, !of lInspectice' and Enforcement,~ as appropriate, to iinstitute'aipro poding pursuant to $2.202 to E:
modify,..sespead:or-revoke'a71icense, or for such other action'as any be proper.: such a requeat
[r u 1shall be; addressed to the Director of Nuclear f
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' " ' ," (Reactor Regulation,: Director of Nuclear Material
. Safety and. Safeguards, Director, Office of
[; ; Inspection 'and Enforcement, as appropriate, and
=shall be filed either: 1(.1) By delivery to the L
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'Public Document: Room at 1717 - E Street NW. , .
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.Washington,. D.C. ,::or '(2) by mail or ' telegram I,' addressed to the Director.of Nuclear Reactor I ire ation,. Director of Nuclear Material Safety
- Safeguards,; Director, Office of Inspection and e f . Enforcement, as appropriate, U.S. Nuclear Regulatory Comunission, Washington, D.C. 20555. .
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The requests shall specify the action requested ,
, and set forth the facts that constitute the basis
.for the request. . .
Thus,..' despite the fact that their request is beyond the
'i.oope of this adjudication, intervenors may pursue the matter by filing-an appropriate petition under 10 CFR 2.206 J/ The fact that this proceeding involv.as not only an operating. license a lication but also a proposed i
amendment to the Mid d construction permit does not .
- ' , enlarge the Licensing' Board's remedial powers vis-a-vis that permit so as to encompass intervenors' request here. As we explain at note 1, supra, the permit modification portion of the proceeding is limited to soil settlement issues.
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f- with the Director of Nuclear Reactor Regulation (NRR) .
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( 2.- Because intervenors' forum for seeking a halt to t3 p ' construction clearly l'ies elsewhere, we dispainse with t .
briefing rad summarily affirm the Licensing Board's ruling
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on this sitarnative ground. As seen from the discussion f-above, the peculiar circumstances of intervenors' appeal are
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y such.that briefing and prolonged consideration of the matter a
I would not have contributed to its disposition. 3 Indeed, i.- .
! .we bel'ieve that, because our course is necessarily so clear, y
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i ~6 / We~ decline to speculste on how the D$ rector might* rule j* on such a petition. We simply hold that intervenors have chosen the wrong forum - i.e.,.this adjudication
-- in which to seek a halt to construction.
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, We do note, though, that intervenors have already
(. informally contacted the staff about,the. affect of EMP
( on Midland. In reply, they received a letter (dated
- L November 24, 1981) from the NRC's Executive Director for operations. This does not, however, preclude intervenors from invoking the Cnemission's formal -
procedures for dealing kith such matters, embodied in 10 CFR 2.206, especially if they have more information !
, to provide. l
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7/ We are mindful of intervenors' procedural rights and )
sensitive to the appecrance of unfairness in deciding ,
< the matter at' hand without hearing further from the !
! parties. But the papers before the Licensing Board i L were extremely brief and none even mentioned 10 CFR I 2.206. See Marshall letters, note 3, supra, and the L
[ December 28, 1981, and January 25, 1982, letter-responses of the applicant and NRC staff, respectively. ,
In the circumstances, it is unlikely that full briefing
- l before us wculd have yielded any additional arguments e or information.
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it is in the best interest of all the pa.rties (especially f: these g se intervenors) to avoid further unwarranted and L unproductive expenditure of their resources.
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- The Licensing Board's April 12, 1982, memorandum-and order (LBP-82-28) is affirmed on other grounds .
It is so ORDERED. ,
e FOR THE APPEAL BOARD
, O 6 ND I- A-)
C. J n Shoemaker
! Secretiry to the Appeal Board 4
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