ML20076L682
| ML20076L682 | |
| Person / Time | |
|---|---|
| Site: | Ginna  |
| Issue date: | 07/15/1983 |
| From: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE, ROCHESTER GAS & ELECTRIC CORP. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20076L674 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8307190273 | |
| Download: ML20076L682 (9) | |
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NUCLEAR REGULATORY COMMISSION q4 k ;
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ROCUEsfER GAS AND ELECD[C "' 9 .D9cket No.sj50-2440L4 -
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"' -s ... . LICENSEE ' S MEMORANDUM Ol'sl AW, D q f f' / ,
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Rochester Gas And*Electri.c Qorpora, tion ("Licedee") ia
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~ currently operating R.b', Cinna Nuclear Power Station [ Unit;
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a full-term operating license.,Jhe application was noticed ,
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at 37 Fed. Reg. 26l144 -(19'l2)',' and' has been peniling before .
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the Commission since thab tim'e. Followin2J notice,Jthe
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i Intervenor, Mr. Michael Slade, ..was admittedsto the , ,e proceedingbyanAh,thicSaf4tyaddLlcS. sin'gBoardorderon
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suspension of the proceeding [at;anymtime cince thi initi.al
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notice was publ'ishef.' OThe Ginna lfacilitys has oper;ated -
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The Licensing Board issued an order on June 15, 1983-that requested comments on whether the Licensing Board should or is required to re-notice an opportunity for interested persons to interve,ne and seek a hearing on the proposed license conversion. The Licensing Board asked for specific consideration of an Atomic Safety and Licensing Appeal Board decision, Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ,
ALAB-539, 9 N.R.C. 422 (1979).
Argument I.
THERE IS NO LEGAL REQUIREMENT THAT THIS PROCEEDING BE RE-NOTICED.
The Allens Creek decision is not particularly helpful in addressing the question posed by the Licensing Board.
The Appeal Board never addressed the propriety of the Licensing Board's decision to re-notice the Allens Creek proceeding after the applicant filed an amended application to construct a different project. Instead, the case involved whether the re-notice had been sufficiently clear to preclude consideration of certain issues that had been brought before the NRC at an earlier stage of the proceeding. As a result, the brief discussion of re-notice in Allens Creek is pure dicta. Even that dicta is not helpful in the instant case, since it spoke to re-notice after a postponement or suspension of a construction permit proceeding. In contrast, our proceeding has been ongoing i
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E continuously and involves a conversion application for an existing facility. Also, the basic features of the Ginna
] plant--an operating reactor--have not been altered since notice was first published; the Allens Creek project, L
however, had undergone significant design changes prior to the issuance of the second notice. In sum, the Allens Creek decision does not resolve the re-notice issue raised by the 1
Licensing Board in the instant case. ,
The question of when re-notice of an application is i required because of changed circumstances was adverted to, ;
1 but not answered, in Public Service Company of Indiana, Inc. f (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-371, 5 N.R.C. 409 (1977) , and ALAB-459, 7 N.R.C. 179 i
(1978).
l In ALAB-371, the Appeal Board said that the amended l hearing notice issued by the Licensing Board "should 3
not . . . trigger any new rights in the public to raise 1 contentions with respect to . . . those issues (as to which
! an opportunity for hearing] was afforded at an earlier stage . . . . 5 N.R.C. at 411. It directed the filing of briefs on whether the amended notice was required.
Thereafter, the Appeal Board held that "the propriety of the Licensing Board's decision to issue an amended notice 1
of hearing is moot", ALAB-459, 7 N.R.C. at 201 n.63, because 2
no additional petitions to intervene had been filed.
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l Accordingly, even though amendment of the application was held to be required, the Appeal Board never determined that the change in ownership of the Marble Hill units required re-notice.
Although we have not found any Commission or Federal court decisions addressing when re-notice is required in licensing proceedings, re-notice guidelines that may be analogously applied do exist for rulemaking proceedings. ,
According to Connecticut Light and Power Company v. NRC, 673 F.2d 525 (D.C. Cir. 1982), re-notice of rulemaking is needed only if " changes (in the initially proposed rule] are so maior that the original notice did not adequately frame the subjects for discussion." Id. at 533, citing Weyerhauser Co. v. Costle, 590 F.2d 1011, 1031 (D.C. Cir. 1978); Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 48 (D.C. Cir. ) (en banc) , cert, denied, 426 U.S. 941 (1976). So long as a final action is a " logical outgrowth" of an initial proposal, original notice is deemed sufficient. Id.
In the instant case, Licensee initially and continuously has sought approval of the license conversion.
The purpose of the initial application has remained unchanged; clearly, the original notice properly framed the issues that are before the Commission in this case. The conversion proceeding has reasonably developed from the initial application since first, no significant design changes have been proposed, and, second, Licensee has acted throughout the p.roceeding in a manner intended to facilitate favorable consideration of its original application. Under these circumstances, re-notice guidelines for rulemaking suggest that re-notice is not required in the instant case.
Re-notice has also been required for agency adjudications under S 554 of the APA, 5 U.S.C. S 554 (1976),
when an agency initiates an action and subsequently changes the legal theory under which it has brought the action.
See, e.g., Rodale Press, Inc. v. FTC, 407 F.2d 1252, 1256 ,
(D.C. Cir. 1968); American Home Products Corp. v. FTC, 695 F.2d 681, 693 n.21 (3d Cir. 1982). Legal theories have not changed in the instant case, however, since the general l criteria for review of the plant are the same as those in I
force when the conversion application was made. Also, adjudications are procedurally distinguished from licensing proceedings by 5 U.S.C. S 554 (d) (2) (A) (1976), suggesting that this re-notice requirement would not apply in the instant case. This standard, therefore, does not compel re-notice of the Ginna proceeding.
II.
I THERE IS NO POLICY REASON TO RENOTICE THIS PROCEEDING.
Interested parties have had continuous, meaningful and 1
fair notice of the Ginna proceeding. First, the Ginna plant l is an existing facility on a highly visible site. Its physical presence has been known to area residents for nearly 15 years. Second, local media coverage of the proceeding insures that an average resident of the Ginna area has been apprised of the conversion proceeding as it
has moved toward conclusion. In addition, State and local governments have received, and continue to receive, notice of each stage of the proceeding, providing an additional source of notice. Any reasonable party with a legitimate interest in the Ginna proceeding has had ample notice and opportunity to intervene.
The Environmental Assessment recently issued by the Commission's Staff confirms that there are no significant ,
new issues that would support re-notice. See 48 Fed. Reg.
29,764 (1983). Staff thoroughly analyzed the validity of the 1973 FES prepared for the conversion application. It concluded that the environmental issues are substantially unchanged, noting that neither previously unidentified enviropmental concerns nor significant physical changes necessitate a new environmental study. Re-notice is unnecessary, therefore, to insure that all issues surrounding the environmental impact o'f the Ginna facility will be considered.
In sum, the circumstances in the instant case suggest that re-notice would add little to the Ginna proceeding except delay. The conversion proceeding has been ongoing for over a decade. Parties with reasonable concerns have had access to more effective notice than Federal Register publication through the local media, and through the service of all documents on local and State government agencies.
The basic thrust of the conversion application has not changed since notice was first published. Finally, l interested parties may still seek to intervene in the l
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conversion proceeding upon a showing of good cause. 10 C.F.R. S 2.714 (1982).
Licensee has a legitimate interest in bringing the Ginna proceedings to a close. Since neither law nor policy counsel in favor of re-notice, the Licensing Board should respect that interest by permitting this case to go forward.
Conclusion For the foregoing reasons, the Licensing Board should ,
not order any re-notice.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By h/ . df/
'Harr H.'Voigt g July 15, 1983 1333 New Hampshire Ave., N.W.
Washington, D.C. 20036 Attorneys for Rochester Gas and Electric Corporation I
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BEFORE THE UNITED STATES . /
V NUCLEAR REGULATORY COMMISSION ",, y' N 7 In the Matter of )
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ROCHESTER GAS AND ELECTRIC CORPORATION ) Docket No. 50-2440L .
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(R. E. Ginna Nuclear Power Station, )
Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that I have served the documents entitled
" Response of Rochester Gas and Electric Corporation to Order Issued June 15, 1983" and " Licensee's Memorandum of Law Concerning the Need to Re-Notice an Opportunity to Intervene in the Ginna Proceeding,"
by mailing copies thereof first-class, postage prepaid to each of the following persons this 15th day of July, 1983:
Herbert Grossman, Esq. Michael L. Slade Chairman, Administrative Judge 12 Trailwood Circle Atomic Safety and Licensing Rochester, NY 14618 Board U.S. Nuclear Regulatory Rochester Committee for Commission Scientific Information Washington, DC 20555 Robert E. Lee, Ph.D.
Post Office Box 5236 Dr. Richard F. Cole River Campus Station Administrative Judge Rochester, NY 14627 Atomic Safety and Licensing Board Mr. Robert N. Pinkney U.S. Nuclear Regulatory Supervisor Commission 107 Ridge Road West Washington, DC 20555 Town of Ontario Ontario, NY 14519
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P Dr. Emmeth A. Luebke Atomic Gafety and Licensing Administrative Judge Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission Washington, DC 20555 Washington, DC 20555 Warren B. Rosenbaum, Esq. Atomic Safety and Licensing One Main Street East Appeal Board 707 Wilder Building U.S. Nuclear Regulatory
. Rochester, NY 14614 Commission Washington, DC 20555 Jay Dunkleberger New York State Energy Office Secretary .
Agency Building 2 U.S. Nuclear Regulatory Empire State Plaza Commission Albany, NY 12223 ATTN: Chief, Docketing and Service Branch Stanley B. Klimberg, Esq. Washington, DC 20555 General Counsel New York State Energy Office Mr. John E. Maier Agency Building 2 Vice President Empire State Plaza Electric and Steam Production Albany, NY 12223 Rochester Gas & Electric Corp.
89 East Avenue Rochester, NY 14649 Harry QAltAl $
Voigt 0g LeBOEUF, LAMB, LEIBY & MacRAE Attorneys for Rochester Gas and Electric Corporation l
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