ML20212D182

Memorandum & Order.* Intervenors Motion Denied.Served on 870226

ML20212D182
Person / Time
Site:	Seabrook
Issue date:	02/26/1987
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NEW ENGLAND COALITION ON NUCLEAR POLLUTION
References
CON-#187-2596 ALAB-860, OL, NUDOCS 8703040078
Download: ML20212D182 (13)

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~ 7 Ff6 DOCKETED USMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 FEB 26 P1 :58 ATOMIC SAFETY AND LICENSING APPEAL BOARD CF Administrative Judges: U' Alan S. Rosenthal, Chairman February 26, 1987 Gary J. Edles (ALAB-860)

Howard A. Wilber 3 SERVED FEB 261987 In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, _E _T _A _L . ) 50-444-OL (Seabrook Station, Units 1 ) (Offsite Emergency Planning) and 2) )

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Andrea Ferster, Washington, D.C., for intervenors New England Coalition on Nuclear Pollution, et al.

Thomas G. Dignan, Jr., R.K. Gad, III, Kathryn A.

Selleck, and Deborah S. Steenland, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.

Robert G. Perlis for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER Section 2.758 of 10 CFR prohibits challenges to Commission regulations in adjudicatory licensing proceedings, except upon petition for a waiver or exception showing special circumstances -- i.e., that application of the regulation would not serve the purpose for which it was adopted. Such petitions are reviewed in the first instance by the licensing board presiding over the proceeding. If the board determines that the petitioning party has not made 8703040078 B70226 gDR ADOCK 0500o443 PDR DSo2

2 out a prima facie showing that the rule or regulation should be waived or an exception granted, it must deny the petition. The regulation then continues to apply to the proceeding. If, on the other hand, the licensing board determines that the petitioning party has made the requisite prima facie showing, it must certify that determination directly to the Commission itself.

On December 18, 1986, the applicants in this operating license proceeding filed a petition pursuant to 10 CFR 2.758. The petition requests an exception to or a waiver of the Commission's regulations that require that the plume exposure pathway emergency planning zone (EPZ) for a nuclear power plant consist of an area approximately 10 miles in radius.1 The applicants propose that the EPZ for the Seabrook Station be reduced to a one-mile radius. The l

two-volume petition and attachments include several analyses, numerous affidavits, and an extensive legal j memorandum purporting to demonstrate that special

! circumstances at Seabrook, including the existence of "a l

! double containment," obviate the need for a 10-mile EPZ.

A few days after the filing of the petition, the Licensing Board directed that any responses to it be l

1 See 10 CFR 50. 47 (c) (2) .

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3 submitted by January 27, 1987.2 Several parties, including the NRC staff, filed requests for reconsideration of the l l

Board's scheduling order.3 In an unpublished memorandum and order issued on January 7, 1987, the Board denied those requests. In that same order, the Board also put forth its I understanding of what satisfies the section 2.758 require- ,

l ment that a petitioning party make out a prima facie showing '

that the application of the rule or regulation in question would not serve the purposes for which it was adopted.

Finally, the Board indicated its intent to determine if such j prima facie showing had been made by reference to only the petition and the responses.4 l

Licensing Board Memorandum and Order of December 23, l 1986 (unpublished).

3 The staff, for example, indicated that it could not adequately evaluate the complex technical I materials on which Applicants' petition is based and take a position on whether the Applicants' petition makes a prima facie showing that an exception or waiver to the rules and regulations should be granted to permit [an EPZ] of one mile . . . . The Staff cannot even set out a

schedule for when it will be able to complete its technical review which would enable it to take an i

informed position on whether the petition makes a prima facie case for an exception or a waiver of the regulations. l l NRC Staff's Motion for Reconsideration of Licensing Board l Order of December 23, 1986 (January 5, 1987) at 3. l

' 4 The Board has since authorized parties to supplement l (Footnote Continued) l l

4 The intervenors, New England Coalition on Nuclear Pollution, Commonwealth of Massachusetts, Town of Hampton, and Seacoast Anti-Pollution League, have filed a motion requesting that we review the Board's January 7 rulings.

They ask us to establish a new schedule for resolution of the issues presented by the section 2.758 petition so as to provide for discovery and the presentation of testimony, and to correct the Licensing Board's erroneous construction of the " prima facie" requirement. In the alternative, the intervenors ask us to certify to the Commission the question of whether interested parties are entitled to an adjudicatory hearing on the petition. The applicants and the NRC staff oppose the requests. -

Because the intervenors' motion does not satisfy the standards for interlocutory review of licensing board rulings, we deny it in all respects.

(Footnote Continued) their initial responses by no later than February 27. See Licensing Board Memorandum and Order of February 3, 1987 (unpublished). It has also recently observea: "The Board has on several occasions stated that we understand and accept that final complete technical responses to Applicants' 10 CFR 2.758 petition may require additional time up to twelve months. In recognition of that fact, we have provided the opportunity for the parties to give us any additional responses, including any technical responses, which they may have available by February 27, 1987."

Licensing Board Memorandum and Order of February 19, 1987 at 1-2 (unpublished) .

5 A. We are faced at the threshold with the applicants' assertion that we lack authority to entertain the motion.

In this regard, they claim that an appeal board has no appellate jurisdiction at this juncture over the processing by a licensing board of a petition pursuant to 10 CFR 2.758 for a waiver of or exception to the Commission's regulations. The applicants contend that the regulatory scheme embodied in section 2.758 establishes specialized procedures for handling petitions for a waiver of Commission rules and contemplates only two possibilities -- denial of the petition by the Licensing Board, thus bringing the matter to a close, or certification to the Commission of a Board finding that a prima facie showing has been made. In either case, so the argument goes, the Appeal Board has no role to play 5 The NRC staff, however, thinks otherwise.

Noting that the issue "seems to be one of first impression," it maintains that the terms of the section do not alter our usual appellate authority, including our authority to direct certification of licensing board

! rulings, except in one respect; i.e., footnote 7 directs the Licensing Board to certify an affirmative finding regarding i

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5 Applicants' Response to Intervenors' Joint Appeal r (January 27, 1987) at 5-6 (hereaf ter, Applicants' Response).

6 NRC Staff Response to Joint Appeal (February 5, 1987) at 5 (hereaf ter, NRC Staf f Response) .

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6 the prima facie showing "to the Commission notwithstanding the provisions of S 2.785." We agree with the staff.

We acknowledge that section 2.758 does not expressly address what role, if any, an appeal board may play while a licensing board has a section 2.758 petition before it for consideration. But 10 CFR 2.785 confers on us all the authority that the Commission would possess in operating license proceedings.8 And we have held -- without any Commission suggestion to the contrary -- that our authority is constrained only when the Commission explicitly directs.

As we indicated in a Shoreham opinion, if the Commission desires to preclude or to limit the exercise of . . . [our] authority in a particular . . . pro

-- say so expressly.geeding, it must~-- and does I

The only express limitation on our authority in t

connection with petitions filed pursuant to section 2.758 is i

[ the requirement in footnote 7 that the Licensing Board's l

l Id. at 6-7. Section 2.785 of 10 CFR authorizes the establisEment of appeal boards to pe form the functions that would otherwise be performed by the Commission itself in licensing proceedings.

8 The Commission has recently expanded the authority of the appeal boards to embrace all formal adjudications. See 52 Fed. Reg. 2993 (1987). This change in the Rules of Practice has no bearing on the issues before us.

Long Island Lighting Co. (Shoreham Nuclear Power l

Station, Unit 1), ALAB-787, 20 NRC 1097, 1100 (1984). See also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-685, 16 NRC 449, 451-52 (1982),

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7 determination that a prima facie showing has been established be certified directly to the Commission notwithstanding the provisions of 10 CFR 2.705. Hence, section 2.758 reveals no Commission intent to override other elements of our customary appellate jurisdiction, including our authority to direct the certification of licensing board rulings in proper circumstances.10 Given our determination that we possess the necessary authority to entertain the motion, we now turn to a consideration of whether we should exercise that authority.

B. As we recently observed in this proceeding, the Commission's Rules of Practice prohibit interlocutory appeals from, among other things, licensing board scheduling rulings.11 Thus, a motion seeking our intercession with respect to such a ruling must satisfy the criteria for directed certification. In order to obtain discretionary i

10

As the applicants concede, we routinely play our normal appellate role at the end of a proceeding and review

! licensing board determinations that a prima facie showing has not been made out. See Applicants' Response at 7, l citing Commonwealth Edison Co. (Byron Nuclear Power Station,

! Units 1 and 2), ALAB-793, 20 NRC 1591, 1614-16 (1984). See also Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 546-48 (1986).

11 ALAB-858, 25 NRC , (January 15, 1987) (slip opinion at 4-6).

12 f Ibid. See generally 10 CFR 2.718 (i) , 2. 785 (b) (1) ;

l Public Service Co. of New Hampshire (Seabrook Station, Units

(Footnote Continued) l l

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8 interlocutory review, a complaining party must demonstrate that the challenged schedule deprives it of procedural due 13 process.

The gist of the intervenors' argument is that the one month allowed for responses to the applicants' petition by the Licensing Board's schedule is wholly insufficient to permit an adequate reply to the host of issues surrounding the applicants' endeavor to establish a one-mile EPZ. The intervenors assume, in this regard, that they may have no other opportunity to challenge the petition and assert that they are entitled to a full evidentiary hearing on the merits of the petition. They contend:

If no adjudicatory hearing is granted, then the inadequate and incomplete opposing affidavits --

which is all the Licensing Board's schedule permits -- may comprise the sole record on which the Commission must base such weighty and far-reaching questions as whether the size of the Seabrook Emergency by a factor of ten.((anning Zone could be reduced

! (Footnote Continued) l 1 and 2), ALAB-271, 1 NRC 478, 482-83 (1975). As the l applicants point out, the intervenors purport to seek appellate relief pursuant to 10 CFR 2.714a. A party may appeal pursuant to that section if the Licensing Board's l determination denies a request for a hearing in its i entirety. We agree with the applicants that section 2.714a l is inapplicable to the request before us. The intervenors nevertheless assert that their request for interlocutory i

review also satisfies the requirements for directed certification.

13 ALABL858, 25 NRC at (slip opinion at 5-6).

14 Intervenors' Joint Appeal of the Licensing Board's (Footnote Continued) l l

9 The intervenors also allege that the infringement of their rights is compounded by the Licensing Board's erroneous construction of the requirement that the applicants establish a prima facie showing in support of their petition. The Licensing Board observed:

Although prima facie is not defined in 10 CFR 2.758, one Licensing Board has found it

" reasonable to equate ' prima facie' showing with

' substantial' showing." Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant),

LBP-85-5, 21 NRC 410 (1985). We believe, however, prima facie to mean evidence of a sufficient naturethatwoulg5cause reasonable minds to inquire further In the intervenors' view, the Board has established an impermissibly low threshold for further Commission review of the merits of the petition.16 In sum, the intervenors are concerned that there will be little or no screening of the petition by the Licensing Board and that the Commission may (Footnote Continued)

Supplemental Memorandum and Order of January 7, 1987 (January 16, 1987) at 11 (herea f ter, Intervenors' Appeal).

15 Licensing Board Memorandum and Order of January 7, 1987 (unpublished) at 3 n.*. The Licensing Board has more recently clarified its original determination. It noted:

"It was our intent to indicate to the parties that we do not view the prima facie standard as one requiring either the highest standard of evidentiary proof which the substantial showing approaches, or the minimum evidentiary showing at the other end of the scale." See Licensing Board Memorandum and Order of February 12, 1987 (unpublished) at 2.

16 Intervenors' Appeal at 7.

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10 thereafter simply grant the petition on the merits without further procedures.

Were it clear that the intervenors' scenario will materialize, we might agree that their procedural rights have been impermissibly compromised. But they are prepared to accept the proposition that the Commission may properly determine at the threshold whether a prima facie showing has been established, as long as it thereafter orders an evidentiary hearing on the merits of the petition.1 That being so, we find that the intervenors' concerns are premature and do not constitute an immediate infringement of

. procedural rights warranting our interlocutory intrusion into the Licensing Board's conduct of the proceeding. We likewise find no compelling reason to certify to the Commission at this stage the issue of whether the intervenors are entitled to an adjudicatory hearing on the petition.

To begin with, the Licensing Board has yet to make its determination as to whether the applicants have made out a prima facie showing for grant of the petition. The Board may conclude that no such showing has been made -- thus rendering moot all of the intervenors' concerns. We have routinely declined to e:<ercise our directed certification 17 Id. at 11 n.8.

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11 authority where a party's concerns were premature.18 There is no basis for treating the intervenors' request here any differently.

We appreciate that, in contrast to the usual case, we may be unable to. afford relief even if the Licensing Board erroneously determines that the applicants have made out the

{ requisite prima facie showing. Such a determination, after

all, must be certified directly to the Commission for consideration. That factor does not. prompt us to inject ourselves into the proceeding at this time. It '.s enough that a reasonable opportunity for relief will remain open.

If, as the intervenors fear, the Board were to rely on an erroneous construction of the regulations or otherwise improperly determine that the applicants have established a prima facie showing, they may raise those matters with the Commission itself.I Equally important, they may at that time also present their view that an evidentiary hearing is required before. .

t See, e.g., ALAB-858, 25 NRC at (slip opinion at 6-7); Philadelphia Electric Co. (Limerick Generating Station, Unit 1), ALAB-833, 23 NRC 257, 261 (1986).

19 We construe the Licensing Board's January 7, 1987, definition of " prima facie" as preliminary. As the applicants point out, and as the Licensing Board noted in its February 12 clarifying order, we dealt with the issue in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653, 16 NRC 55, 72 (1981),

attached to CLI-82-19, 16 NRC 53 (1982).

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e 12 the petition may be granted on the merits. In this connection, there is no basis for assuming that the Commission will simply grant the applicants' petition without according the intervenors and others an appropriate opportunity to respond or to raise due process concerns.

The regulations, after all, provide that "the Commission may direct such further proceedings as it deems appropriate to aid its determination,"20 and the staff argues that "the Commission would need to order further proceedings before it could reach a final decision on the Applicants' petition."21 In the circumstances, we cannot find at this juncture that the intervenors' procedural rights have been or necessarily will be infringed.22 Thus, they have failed to show that interlocutory review is warranted, i

The intervenors' motion is denied.

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10 CFR 2.758(d).

2I NRC Staff Response at 12.

We intimate no position on the intervenors' claim that conventional evidentiary hearings are the only permissible procedural avenue available.

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13 It is so ORDERED.

FOR THE APPEAL BOARD O.

C. J ' n Shoemaker k

Secre ary to the Appeal Board l

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