ML20203E368
| ML20203E368 | |
| Person / Time | |
|---|---|
| Site: | Marble Hill |
| Issue date: | 07/21/1986 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20203E373 | List: |
| References | |
| CON-#386-062, CON-#386-62 OL, NUDOCS 8607240135 | |
| Download: ML20203E368 (22) | |
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Jul3 g 1986 USN l UNITED STATES OF AffERICA - -
NUCLEAR REGULATORY COMMISSION 23 'I *I4 BEFORE THE ATOf1IC SAFETY AND LICENSING Rb[p),g,
.w , ;, m':;4 In the Tfatter of )
)
PUDLIC SERVICE COf!PANY OF ) Docket Nos. 50-546 ^
INDIANA, INC. ) 50-547 WABASII VALLEY pot /ER )
ASSOCIATION, INC. )
)
(Marble 11111 Huclear Generating )
Station, Units 1 and 2) )
HRC STAFF RESPONSE TO f.1Eff0RANDUM >
AND ORDER OF MAY 30, 1986 I. INTRODUCTION On May 30, 1986, the Atomic Safety and Licensing Board ("the Board") issued a " Memorandum and Order" (" Order of May 30, 1986")
concerning the Applicants' motion to terminate this operating license proceeding. 1 In its Order, the Board, stating that the pleadings 4
before it "are inadequate in two important areas," directed the parties to supplement their pleadings with additional information. Order, at 2.
Specifically, the Board directed the Applicants to supplement their motion f
4
-1/ " Motion To Terminate Proceeding" (" Applicants' Motion"), April 4, i 1985. In this Motion , Applicants, citing their March 1, 1985, i: " surrender" of the construction permits ("CP's") for Marble 11111 ,
Units 1 and 2, to the Director, Office of Nuclear Reactor Regulation
- ("NRR"), stated that there is no reason to continue this proceeding.
Applicants' Motion, at 1. Accordingly, Applicants requested that the Board terminate the proceeding. Id. On the same date, Applicants also filed with the Board copies oTiheir March 1,1985 letter to the Director, NRR which included a " stabilization plan", which Applicants state "will govern future activities. " March 1, 1985 Letter, at I .
DESIGNATED ORIGINAL 0607240135 860721 6 PDR ADOCK 0500 Certified By__ _ CS 67 - f2 C, G
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explaining what they seek from the respective components of the NRC and
- to support their supplement by citations to controlling law. Id. , at 3.
The Board also directed the NRC Staff ("the Staff") to report on the l
status of the Marble Hill CP's and to state its position on the Board's jurisdiction after the Staff has examined the Applicants' supplement. Id.
The Doard further stated that if the matter comes before it pursuant to 10 C.F.R. I 2.107(a), it "wf!1 he required to exercise some judgment as to the terms for withdrawal of the ... application." (Id., at 6).
Accordingly, the Board provided the parties with the opportunity, if they
- so elect, to provide guidance on this issue. (Id.) 2,/
On July 2,1986, Applicants filed a " Supplement To Motion To Termi-nate Proceeding" (" Applicants' Supplement") in response to the Licensing Docrd's Order. In their Supplement, Applicants state that, "having pre-viously surrendered the construction permits, they do not seek anything
- from the Director" [ Office of Nuclear Reactor Regulation]. Applicants' Supplement, at 7. Applicants maintain that the surrender of the con-struction permits to the Director (NRR) renders this operating license 2/ On June 18, 1986, the Board issued a " Memorandum and Order"
(" Order") amending its Order of May 30, 1986. This later order concerned a letter dated June 11, 1986, from Indiana Sassafras Audubon Society ("Audubon") which responds to the Applicants' April 4, 1985 Motion. In its letter, Audubon requests that the Marble 11111 site be restored as completely as possible to farmland, timberland and wildlife habitat. Letter, at 1. The Board noted that to the extent Audubon's letter seeks to respond to the Applicants' j initial motion to terminate, it is late. Order, at 2. However, the
- Board provided that Audubon or any other petitioner in this proceeding may file an answer to Applicants' supplement to their motion to terminate the proceeding, (or that Audubon may rest on its June 11, 1986 letter), and that the Applicants and the Staff may address issues relating to petitioners in their respective forthcoming l responses to the Board's Play 30,1986 Order. Id., at 2-3.
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o proceeding moot. For this reason, Applicants request that their April 4, 1985 motion be granted. Id.
In accordance with the Board's Orders, the NRC Staff herewith responds to the Board's May 30, 1986 Order and to the Applicants' Supplement. - As discussed below, a reexamination of the record in this proceeding reveals that no notice of hearing was issued. O In such a circumstance, the Licensing Board has no authority to impose any conditions upon the withdrawal of the application for operating licenses.
Rather, pursuant to 10 C.F.R. S 2.107(a), such authority lies with the Commission (or its delegated Staff office). The Board does have the jurisdiction to entertain Applicants' motion to terminate this proceeding.
Since Applicants have cancelled the Marble Hill plant, the Board should grant the Applicants' Motion and terminate this proceeding.
II. BACKGROUND A. The Construction Permits Construction Permit Nos. CPPR-170 and 171 for Marble 11111 Nuclear Generating Station, Unit Nos. I and 2 were issued on April 4,1978. -
-3/ In a motion filed by Save The Valley, Inc. ("STV") on June 26, 1986
(" Motion of Save The Valley, Intervenor") (hereafter " Motion of STV") and a letter dated July 14, 1986, both Audubon and STV essentially take the same position as Audubon did in its earlier letter with respect to site restoration. Neither Audubon nor STV address the question of the Board's authority pursuant to 10 C.F.R. S 2.107(a). The Staff addresses the issue of site restoration infra.
4_/
As stated infra, a notice of proposed action and opportunity for hearing was issued.
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5/ The procedural history leading to the issuance of these construction permits is set forth in Applicants' Supplement (at 2) and will not be repeated here.
4 On January 13, 1983, the NRC issued an Order granting Applicants' request for an extension of the construction completion dates for Marble
!!ill, Units 1 and 2. 6_/ The Order extended the latest completion date for Unit 1 to March 1, 1988 and the latest completion for Unit 2 to September 1, 1989. As previously stated , on March 1, 1985, the Applicants proffered their construction permits (cps) to the Director, liRR for the purpose of " surrendering" them. However, the Staff has not revoked those permits. The Staff's response to Applicants' March 1, 1905 letter (which also transmitted the site " stabilization plan"), stated that before the Staff could terminate those permits, it needed additional information regarding the site stabilization plan. 1I The Applicants responded to the Staff's request by letter transmitting additional information. 8_/
B. The Operating License Application Background regarding the operating license proceeding is set forth in the " Staff Response to Applicants' Motion To Terminate Proceeding,"
April 24, 1985 (at 1-3) (" Staff Response"), and in the Board's Order of Play 30, 1986 (at 1-2) . Following receipt of the Licensing Board's Order of May 30, 1986, the Staff reexamined the record in this proceeding.
This reexamination disclosed that certain aspects of the past history of 6_/ " Order Extending Construction Completion Dates", January 13, 1983.
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7/ Letter. April 2, 1985, from B.J. Youngblood , Chief, Licensing Branch No.1. , Division of Licensing (NRR).
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8/ Letter, May 1, 1985, from S.W. Shields, Senior Vice-President ,
Public Service Indiana.
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this proceeding need to be focused upon with more precision. II l
Specifically, although a notice of proposed action and opportunity for hearing pursuant to 10 C.F.R. S 2.105 was issued , E a notice of hearing pursuant to 10 C.F.R. 5 2.104(c) was not issued.
The Staff's reinspection of the history of this proceeding with 4
regard to petitions for intervention indicates as follows: On March 25, 1983, the U.S. Nuclear Regulatory Commission (" Commission") published in the Federal Register the above-mentioned notice of proposed action and opportunity for hearing (" notice of proposed action") regarding the i
j above-captioned proceeding. (48 Fed. Rg. 12608). Petitions to l Intervene were filed by Sassafras Audubon Society of South Central Indiana ("Audubon"), b S ave the Valley ("STV") EI and Valley Watch,
. Inc. ("VW"). $ On April 26, 1983 a Licensing Board was established i
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'-9/ In its filing of April 24, 1985, the Staff described the chronology of the filing of petitions for leave to intervene. However, the Staff did not focus on the fact that none of the petitions were granted and
, that the proceeding had not progressed to the point of issuing a
- notice of hearing. Had the Staff recognized this fact, it would have l taken the position stated in this filing rather than suggesting that
! the Board await the Staff's environmental review, with the implication that the Board would be ruling upon withdrawal of applications for
- operating licenses pursuant to 10 C.F.R. 5 2.107(a).
-10/ Notice of Receipt of Application for Facility Operating Licenses; Availability of Applicants' Environmental Report; Consideration of issuance of Facility Operating Licenses; and Opportunity for IIearing
(" notice of proposed action") . 48 Fed. Rg. 12608 (March 25,
! 1983).
! 11/ Letter from Mary Pat Lynch, President, Sassafras Audubon Society of South Central Indiana to NRC dated April 16, 1983.
g/ "Save the Valley's Petition to Intervene," mailed April 22, 1983.
I j
13,/ Letter from Tom Zeller to Secretary of Commission, April 19, 1983.
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, for the proceeding. El In a Memorandum and Order issued on June 30, 1983, the Board ruled that only STV demonstrated standing to intervene.
Amended petitions filed by Audubon E and VW N still failed to demonstrate standing. E Before the Board could rule on supplemental petitions for intervention by Audubon and VW EI and provisional contentions of STV, E Public Service of Indiana (" PSI") informed Harold Denton , Director, Office of Nuclear Reactor Regulation, on January 18, 1984 that the Board of Directors of PSI had suspended construction of its Marble 11111 project on December 30, 1983 and had informed its partner, WVPA, 'that PSI could not proceed with the construction of Marble Hill.
Thus, the status of the proceeding as of the date the Applicants announced they could not complete construction of Marble Hill was 1) a Licensing Board had been established to rule on petitions for leave to intervene, but no such petitions had been granted, and 2) the proceeding had not progressed to the stage where any notice of hearing could be M/ The Licensing Board in this proceeding was established "to rule on petitions for leave to intervene and requests for hearing and to conduct the proceeding in the event a hearing is ordered."
" Establishment of Atomic Safety and Licensing Board To Preside In Proceeding," April 26, 1983.
-15/ " Amendment To The Sassafras Audubon Society detition For Inter-vention In Operating License Hearing," July 22, 1983.
-16/ " Valley Watch, Inc. Ammendment [ sic] To Petition For Intervention and Request For Hearing," July 26, 1983.
, g/ Memorandum and Order dated September 14, 1983, at 1-2.
M/ " Joint Supplement To The Sassafras Audubon Society and Valley Watch Petitions For Intervention In Operating License Hearing ,"
October 21, 1983.
19/ "Save The Valley's Provisional Contentions," October 21, 1983.
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,o issued. Since that date, the status of the proceeding has not changed insofar as petitions for leave to intervene and a notice of hearing are concerned.
III. DISCUSSION A. The Board's Jurisdiction In its May 30, 1986, Order, the Board stated, with respect to its jurisdiction that:
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.
Order of May 30, 1986, at 3 n.1.
According to Applicants, the Licensing Board correctly interpreted the Applicants' intention in their Motion of April 4, 1985 to invoke the Licensing Board's jurisdiction for the " sole and ministerial purpose of terminating of the [ sic] operating licensing proceeding." Applicants' Supplement, at 6, quoting Board's May 30, 1986 Order, at 3. Applicants state that they do not seek anything from the Director, NRR, inasmuch as they have previously " surrendered" their cps. Id., at 7. Applicants further state that this action has rendered the operating license proceeding moot. Id. Applicants also disagree with "the Staff's con-clusion that the Licensing Board has jurisdiction over the construction permits by virtue of the provision for the withdrawal of an application in 10 C.F.R. S 2.107." Applicants' Supplement, at 7. App 41 cants assert that the regulatory scheme established by the Atomic Energy Act ("AEA")
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does not cover the voluntary surrender and termination of a construction permit. Applicants' Supplement at 8-9. According to Applicants, no license is necessary or available, inasmuch as the voluntary termination of construction at Marble Hill and the " surrender" of the construction permits to the Director of NRR assure that the facilities will not in the future be " utilization facihties." Id. , at 8. b A licensing board has only the jurisdiction and power which the Commission delegates to it. Marble Hill, ALAB-316, 3 NRC 167, 170-173 (1976). In this case, one must look to the notice of proposed action and the Notice establishing the Board to determine the Board's jurisdiction.
The notice of proposed action provided that in the event petitions for leave to intervene were filed, a licensing board would be established to rule on such petitions. The Notice establishing the Licensing Board provided that this Board was established "to rule on petitions for leave to intervene and requests for hearing and to conduct the proceeding in the event a hearing is ordered." As noted previously in the Background above, this proceeding did not progress to the stage where any petition for leave to intervene was granted and accordingly no notice of hearing was issued. Therefore, pursuant to 10 C.F.R. S 2.717, upon issuance of the notice of proposed action and upon issuance of the Notice establishing this Board, the Board's jurisdiction to rule upon petitions for leave to intervene and other ancillary motions and procedural matters commenced l
l j -20/ Applicants' cite, inter alia , the affidavit of NRC Staff Member, l Paul W. O'Connor (attached to the Staff Response, supra) that l
neither Marble Hill Unit is a " utilization facility" as defined by the AEA. Applicants' Supplement, at 8.
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and has not been terminated by the Commission. A motion to terminate the proceeding appears to be a procedural motion within the jurisdiction of the Board. See also,10 C.F.R. 5 2.718(f).
However, having determined that the Board has jurisdiction to consider a motion to terminute t'ie proceeding, a separate question is whether the Board would have jurisdiction to consider a request by an cpplicant to withdraw an application for a permit or license. El The i Commission's regulation pertaining to the withdrawal of an application is 10 C.F.R. I 2.107(a). 5 That regulation makes a distinction based on whether or not a notice of hearing has been issued. In the case where a notice has not been issued, jurisdiction rests with the Commission cr its designated Staff office. In contrast, where there has been such a notice, the presiding officer has jurisdiction to rule on such a request including the authority to impose conditions upon the withdrawal of the application.
-21/ The Staff recognizes that Applicants have not formally requested permission to withdraw the application for operating licenses (OLs).
However, their actions in " surrendering" their cps as well as their motion to terminate the proceeding should be construed as an attempt to withdraw their OL applications.
p/ That provision of the regulations provides:
I 2.107 Withdrawal of application.
(a) The Commission may permit an applicant to withdraw an application prior to the issuance of a notice of hearing on such terms and conditions as it may prescribe, or may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. With-drawal of an application after the issuance of a notice of hearing shall be on such terms as the presiding officer may prescribe. (Emphasis added).
Applicants' motion, although it cites the " surrender" of the CP's as rendering the proceeding moot, must be construed as encompassing with-drawal of the operating license application. Applicants' arguments about the " surrender" of their CP's notwithstanding, it is clear that having applied for operating licenses, 10 C.F.R. S 2.107(a) governs withdrawal of those applications. The Staff is aware of no precedent for depriving a licensing boar i of its authority pursuant to 10 C.F.R. S 2.107(a) simply because an applicant first contacted the Director, NRR regarding the cessation of construction and cancellation of the facility. Rather, after a notice of hearing has been issued, a licensing board may impose conditions upon the withdrawal of an application. This principle applies whether the application for which withdrawal is sought is for a construction permit 2_3/ or for an operating license. EI The fact that Applicants have proffered or " surrendered" their CP's to the Director of
-23/ United States Department of Energy, Project Management Corpora-l tion , Tennessee Valley Authority (Clinch River Breeder Reactor Plant), LBP-85-7, 21 NRC 507 (1985); Public Service Co. of Oklahoma, Associated Electric Cooperative, Inc. and Western Farmers Electric Cooperative (Black Fox Station, Units 1 and 2), LBP-83-10, 17 NRC 410 (1983); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), LBP-82-29, 15 NRC 762 (1982);
et al. (Davis-Besse Nuclear Power Station, Toledo Units 2Edison and 3),Company, LDP-81-3 T T4 NRC 586 (1981), reviewed ALAB-652, 14 NRC 627 (1981).
M/ Illinois Power Company, et al. (Clinton Power Station, Unit 2),
LBP-85-22, 2 NRC 89 (1985); Gulf States Utilities Co., et al. (River
- Bend Station, Units 1 and 2), LDP-84-51, 20 NRC 14ff (1984);
Cincinnati Gas & Electric Co., et al. (William H. Zimmer Nuclear l
Power Station, Unit 1), LDP-84-37 20 NRC 765 (1984).
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+ NRR 2_5/ would not deprive a licensing board of its authority pursuant to 10 C.F.R. S 2.107(a).
Such a situation existed in Clinton, supra. There, the Applicant filed a motion to terminate the OL proceeding as to Clinton Power Station, Unit 2 on the grounds of mootness - after it had notified the Director, NRR of the cancellation of Unit 2 of the Clinton Power Station, had 25/ As set forth in Applicants' Supplement, Applicants now seem to argue that the Director, NRR also lacks jurisdiction over their CP's.
In answer to this assertion, the Staff simply notes that it has not yet revoked the Marble Hill cps. Alto, under the Commission's regulatory scheme, no licensee can terminate its obligations and responsibilities under an NRC license except under terms and conditions established by the Commission, and such termination must be preceded by appropriate Commission review to assure protection of public health and safety. Nuclear Engineering Co., Inc.
(Sheffield , Illinois Low-Level Radioactive Waste Disposal Site),
CL1-79-6, 9 NRC 673, 675 (1979), citing with approval Nuclear Engineering Co., Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), " Order To Show Cause," March 20, 1979.
( Although Sheffield involved a license for receipt and possession of nuclear materials at the site, not present here, it can be argued that the principles there enunciated apply equally to any Commission license or permit, whether involving nuclear materials or not.)
The Staff also finds unconvincing Applicants' argument that because the Staff has determined that the Marble Hill facility is not a
" utilization facihty" within the meaning of Section 11 of the AEA, 42 U.S.C. S 2014(cc) (Applicants' Supplement, at 8), "no license is necessary or available." (Id.) In Zimmer, supra , the Staff had reached a similar conclusion regarding that facility. There is no indication that this determination operated to void , without NRC action, the construction permit otherwise in effect or to deprive the licensing board of its authority to impose conditions for withdrawal of the application for an operating license pursuant to 10 C.F.R.
S 2.107(a).
-26/ Clinton differs from Marble Hill in some respects. In contrast to the situation here, it appears that the Board had admitted at least one intervenor. 22 NRC at 91. Also, in Clinton, the Applicant did not
" surrender" its CP. Rather, Applicant requested in its motion that the presiding Licensing Board authorize the Director, NRR to rescind the CP issued for Clinton, Unit 2. Clinton, supra, 22 NRC at 89.
s withdrawn its application for Unit 2 and had requested cancellation of the Clinton, Unit 2 construction permit. Clinton, supra, 22 NRC at 91. The ;
Board, pursuant to 10 C.F.R. S 2.107(a) granted Applicant's motion ,
subject to certain conditions. Id. ,14 NRC at 93.
The Staff has set forth above the bases for its position disagreeing with Applicants' arguments that proffering or " surrendering" construction permits by a permittee would deny a licensing board authority to impose conditions pursuant to 10 C.F.R. S 2.107(a) where a notice of hearing had been issued in a proceeding. However the record of this proceeding discloses that no notice of hearing was ever issued. Accordingly, under 10 C.F.R. S 2.107(a), where such a notice has not been issued, it is the Commission (or its delegated staff) that has the authority to impose conditions upon the withdrawal of an application. In sum, the Staff submits that the critical element determining the Licensing Board's authority to impose conditions upon withdrawal of an application is issuance of the notice of hearing, which is lacking here and not whether the permittee has sought to " surrender" its permits to the Director, NRR.
In answer to the Board's question, it is the Staff's position that the Licensing Board has jurisdiction to entertain Applicants' motion to terminate the proceeding. But, in the absence of issuance of a notice of hearing, the Board lacks the authority pursuant to 10 C.F.R. S 2.107(a) to impose any conditions upon the withdrawal of the application for operating licenses for Marble Hill.
Despite having determined that the Licensing Board lacks such authority, in order to respond fully to the Licensing Board's Order, the i Staff addresses below the Licensing Board's inquiry as to whether there l
s is any basis in the record for determining what conditions, if any, the Board should impose upon the withdrawal of the application for operating licenses.
B. Record Concerning Imposition of Any Conditions For The Protection of The Environment In the second part of its Order, the Board noted that the record before it would be inadequate to determine whether any conditions should be imposed pursuant to 10 C.F.R. I 2.107(a) upon the withdrawal of the construction permits. 21/ Order, at 4, 6. The Board questioned the Staff's pceltion in this regard, 28/ noting that the Staff initially referred to the Applicants' plan for restoration. In discussing this issue, the Board states that its citation of several cases involving termination of proceedings subject to site restoration conditions (Davis-Besse, supra, Bailly , supra, and Black Fox, supra), does not suggest that it is 27/ As previously stated, in the Staff's view, it is the withdrawal of the application for operating licenses which triggers 10 C.F.R.
I 2.107(a). In this regard, in one operating license proceeding, the ,
licensing board, in granting a motion to terminate the proceeding, '
had (in addition to imposing certain conditions pursuant to 10 C.F.R. I 2.107(a)), authorized the Director, NRR to rescind the r
, underlying CP. Clinton, supra, 22 NRC at 93-94.
-28/ The Board quoted the Staff's conclusion in its March 28, 1986 filing that "there will be no significant detrimental environmental impact on or offsite resulting from termination of the proceeding." Board Order, at 6, quoting "NRC Staff Supplemental Answer to Applicants' Motion To Terminate Proceeding." March 29,1986, at 1-2.
o " predisposed to a view that would require restoring Marble Hill to its pre-LWA state." E Board Order, at 6 n.5.
Audubon and STV request that the Marble Hill site be restored as completely as possible to farmland, timber land and wildlife habitat. E Applicants did not address this issue.
At the outset, the Staff notes that in discussing the question whether termination of this proceeding should be subject to any conditions, the Staff here has referred to both " restoration" El and site
" stabilization." E The Staff has used these terms interchangeably and by initially referring to restoration, did not mean to suggest that it favored " restoration" (as opposed to " stabilization"). In retrospect, the
--29/ The Board further noted that two of its members constituted a quorum in Clinch River, supra in which the Licensing Board
" approved a site redress plan which was, in essence, a site stabi-lization plan preserving the Clinch River site for some undetermined future industrial use." Board Order, at 6 n.5.
30/ As previously stated, Audubon's request of June 11, 1986 is not timely filed (as recognized by the Board in its June 18, 1986, Order), coming over one year following the filing of Applicants' Motion To Terminate proceeding, and almost three months after the Staff filing setting forth its position based on its environmental review. Inasmuch as the Board has not barred Audubon from answering Applicants' Supplement or resting on the position set forth in its June 11, 1986 letter, the Staff is addressing Audubon's position on the merits despite its untimeliness.
Despite the clear instructions to Audubon on service of documents (Order, June 18,1986, at 3), STV did not serve its motion on Staff counsel. The Staff obtained its copy of the Motion from the Licensing Board. Although the timeliness of STV's filing is also doubtful, for the reasons stated above, the Staff is addressing STV's position on site redress.
31/ NRC Staff Response, supra, April 24, 1985, at 1.
g/ Id. , at 4.
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s Staff concedes that the practice of using these terms interchangeably could have resulted in confusion as to the Staff's position. The Staff's use of the term " restoration plan" was meant to convey the concept of a plan (which could cover the spectrum of options from no action, to stabilization, to full redress of the site to its natural state) leading to the environmentally acceptable status of the site after giving due consideration to all the circumstances of the case.
In the circumstances of this case, the Staff adheres to its position that no environmental conditions are necessary. Prior to reaching this conclusion, the Staff conducted an environmental review, which included a visit to the Marble Hill site. " Environmental Review Related To Public Service Company of Indiana's Request To Terminate The Marble Hill License Proceeding," February 20, 1986 (attached to " Affidavit of Dr. Robert B. Samworth In Support of NRC Staff's Further Answer To Motion For Withdrawal of Application," March 27, 1986, which was part of Staff Supplemental Answer.) The Staff has clarified its position (as set forth in NRC Staff Supplemental Answer), as to why it believes no ,
conditions for site restoration or stabilization are necessary.
" Supplemental Affidavit of Dr. Robert D. Samworth" (attached) . The basis for the Staff position, as set forth by Dr. Samworth in both his original affidavit and in the attached supplemental affidavit, is that the Staff has reviewed Applicants' " Site Stabilization Plan" and found it to be adequate (as supplemented by the additional information Applicants provided) and the Staff has verified that Applicants have implemented their stabili::atio'i plan (as well as the additional activitics described in the attachment to their letter of May 1,1985). (Supplemental Affidavit of
Samworth, at 2). SI No one has challenged any specific aspects of the Applicants' plan. Rather, Audubon and STV object to the plan because it provides for stabilization instead of restoration.
As the Board recognizes, restoration of a site to its original state (as opposed to stabilization) is not necessarily a condition for termination of a proceeding pursuant to 10 C.F.R. I 2.107(a). The cases cited by the Board, Audubon and STV do not stand for the proposition that full restoration of a site is always required. In Black Fox, supra, and a
Davis-Desse, supr_a, (both of which involved termination of construction proceedings upon the withdrawal of applications for CP's), the Applicants had not yet obtained CP's but had undertaken construction pursuant to Limited Worl: Authorizations ("LWA's"). E Although certain activities to
-33/ Had the Applicants not already implemented their plan (as verified by the Staff), it might be appropriate to condition termination of the proceeding upon the completion of these activities. Inasmuch as the ,
Applicants have already implemented their plan, there would be no point in the Staff imposing any such conditions. Cf. Clinch River,
, supra, 21 MRC 507, at 514. (Although the Board there imposed conditions for dismissal of the proceeding, including a plan for redress of the site agreed to by Staff and Applicants, it expressly declined to oversco Applicants' carrying out of the plan, stating that such oversight is classically a function of the Staff.) 21 NRC at 514. Accord, gBaill , supra, 15 NRC 762, at 765; Davis-Besse, supra,14 NRC at 555.
34/ 10 C.F.R. f 50.10(e) provides for the issuance of an authorization to a CP applicant to conduct certain construction activities
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enumerated therein, upon the satisfaction of certain requirements.
However, such activities are entirely at the applicant's risk.
10 C.F.R. I 50.10(e)(4). It can be argued that the kinds of activities undertaken pursuant to a LWA carr'j as an assumed risk, a greater likelihood of the necessity for redress, should a construction permit not be issued (for whatever reason, including withdrawal of an application for CP's). Morcover, it could also be said that such activities, which can be likened to site preparation (as opposed to construction) are therefore more amenable to restoration than is the building or near completion of a nuclear power plant.
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redress each of these sites were imposed upon termination of these proceedings, such activities would not necessarily result in restoration to l a pre-LWA state. For example, even though in Davis-Besse certain activities included as part of the redress plan were designed to enhance i the site's natural environment (including removal of temporary con-l struction office facilities) (14 NRC at 587), the Licensing Board there did
! not determine that complete restoration of the site to its pre-LWA state was a condition of termination of the proceeding. Rather, the Board i ucrcly approved a plan proposed by the Applicant and agreed to by the Staff. 3,5,/ In Black Fox, the conditions for termination included the requirements that Applicants (subject to Staff monitoring and approval) 1 implement their " Black Fox Station Soil Stabilization and Erosion Control Plan" (emphasis added) and that they dismantle those site improvements l not to be utilized at the planned coal-fired facility in such a manner as not to cause any detrimental environmental impacts. Black Fox, supra, 4
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- 35/ "NRC Staff Report In P.esponse To Board Order and NRC Staff i Proposal For Conditions To Be Imposed In Order Terminating The
- Proceeding ," February 19, 1981, at 7-8. The Appeal Board, in i deciding against the need to convene an Appeal Board to examine the i conditions imposed by the Davis-Besse Licensing Board in connection with the withdrewal of the construction permit application and termination of this proceeding, characterized the conditions as
- requiring the Applicant to "take certain affirmative measures designed to 1) restore the site as nearly as possible to its natural
- (i.e. , pre-LWA) state; and 2) to enhance its qualities as wildlife
- habitat." ALAB-652, supra, 14 NRC 627, at 628. liowever, the l Appeal Board, while also noting that these conditions were
" appropriate," " laudable," and " acceptable to all concerned," did not
- rule on the merits of the question whether site restoration was required. Id.
, un -- , _ , - ~ ~ .----,--~-w,. ,,,--,-,~_,-,,v---~~,.,-,.-,-,-------,,-nn-- -,.m ~.+n_ ---,n-- --m-------
s 17 NEC 410, at 412. These conditions cannot be considered as necessarily resulting in restoration of.the sites to their natural state. 3_6/
In Bailly, another case cited by Audubon, STV, and by the Board, the Board conditioned termination of the proceeding on implementation of Applicants' site " restoration" plan. However, inasmuch as the facility was to be located on a ette already occupied by electrical generating facilities, 3- there certainly is a question as to how much restoration (i.e., in the sense of returning the site to a pristine state) actually was involved. fioreover, the te$ms of the k>1an itself did not require activities which might be associeted with restoration, such as removal of all structures constructed. E In citing Clinch River, supra, this . Board itself has indicated that it is not necessarily predisposed to a view . that would require " restoring
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36/ Neither the Davis-Besse nor Dlack Fox sites would be returned to a pristine state. Davis-Besse 2 and 3 were to be part of the Davis-Bessc Nuclear Station site which includes Davis-Betse Unit 1 (for which an operating license has been issued) . Similarly, in Black Fox, Applicants had announced their intention to construct a l
coal-fired electric power generating station at the site of the cancelled Black Fox nuclear project. Black Fox, supra,17 NRC 410, at 411. The Staff recognizes that Black Fox differs from the situa-tion here in that Applicants here have expressed no plan to use the site for power-generation. Arguments in favor of restoration may carry more weight where no such use is proposed.
37/ " Report On The Resolution of All Construction Activities Undertaken At The Bailly Site For The Construction of Bailly Generating Station Nuclear-1 for Northern indiana Public Service Company," (" Report")
November 18, 1981, at 1. (transmitted to the Director, NRR and served on the parties to the Bailly construction permit extension proceeding) .
i 38/ The activities enumerated in the plan were neither fully described nor set forth in the Licensing Board's Order. 17 NRC at 760. As (FOOTNOTE CONTINUED ON NEXT PAGE)
__ __ ___._._,_ _.-_-_ _ _ _ ~ _ -._--_ ___. _ _ _ _
s l _ 19 -
Itarble 11111 to its pre-LWA state." Board Order of May 30, 1986, at 6 n.5. In Clinch River, the Applicants had undertaken construction before receipt of CP pursuant to an exemption granted under 10 C.F.R. I 50.12 and pursuant to a LUA. As the Board explained in Clinch River, the Commission's grant of an exemption pursuant to 10 C.F.R. I 50.12 (per-mitting the conduct of related site preparation activities) rested on record evidence that "although ' perfect restoration of the topography could not be achieved' substantial redress could be, and that the Applicants' had comraitted to whatever redress was both achievable and necessary. Id.
ul 427-28." Clinch River, supra, 21 NRC at 509, citing CLI-82-23, 16 NRC 412, at 427-28 (1982). (Emphasis added). Nevertheless, the Board did not require, as the Clinch River Intervenors would have preferred, that the site be restored to its pre-construction state. The site redress plan approved by the Board (as agreed to by the Staff and Appli-cants 31/) left the site more suited to industrial development than it was in its original condition. 21 NRC at 511. b The objective of the plan was "a self-maintaining, environmentally stable, and aesthetically acceptable site sultr*31e for industrial use, for which the site has long (FOOTNOTE CONTINUED FPr" PREVIOUS PAGE) previously indicated, the plan was not actually a restoration plan per se, but a " Report." In accordance with the plan, certain structures Ere to be left in place.
39/ The Staff conditioned its acceptance of the redress plan on Appli-cants' agreeing to certain requirements. 21 NRC at 510.
40/ Another issue the Board confronted in Clinch River, not present here, is how redress would be modified if an alternate use were found before redress had been completed. Id. , at 512-514.
been zoned." Id., at 510. (Emphasis added). Although Clinch River can be distinguished from Marble Hill on several grounds, SI it certainly can be relied upon for the proposition that restoration of a site to itr original condition is not required.
The decisions terminating operating license proceedings, which are most analogous to Marble Hill (Clinton, supra, and Zimmer, supra) simi-larly did not require complete restoration of the sites to their natural state. The conditions imposed in Clinton appear to relate more to monitoring and stabilization as opposed to redress of the site. Clinton ,
supra, 22 NRC 80, at 92-03. S In fact, under the approved plan, the excavation for Unit 2 was to be left unfilled (although it was to be considered a part of the Unit 1 site and subject to license conditions imposed by the NRC Staff). Id., 22 NRC at 93. (Applicants had committed to certain measures to prevent flood waters from entering the excavation. ) (Id. , at 92). In Zimmer, a facility essentially completely constructed, SI termination of the operating license proceeding waa subject to the condition that Applicants implement, with Staff verification, g/ On the one hand, it can be argued that the site redress in Clinch River is arguably more extensive than in Marble 11111 because there construction (prior to issuance of cps) was expressly tied to Appli-cants' commitment to " substantial redress." On the other hand, Clinch River can he viewed as standing for the proposition that complete redress of a site for which alternate uses are being sought is not as appropriate as it would be for a site for which no alternate industrial uses are likely.
--42/ Clinton involved cancellation of the second unit of a two-unit facility , and can be distinguished from Marble 11111 on that basis.
-43/ "NRC Staff's Answer To Motion For Withdrawal of Application ,"
April 9,1984, at 3-4.
s l
l
. their " site restoration plan." Zimmer, supra, 20 NRC at 768. However, despite the nomenclature applied to that plan, it by no means involved restoring the site to its pre-construction condition. Rather, the plan provided for such activities as removal of certain temporary structures (not useful for conversion to a coal-burning facility), El grading, and reseeding of bare areas. SI In sum, as cases discuss above indicate, the term " site restoration" has many meanings and may not, as Audubon and STV suggest, actually involve conversion of a site to its pre-construction state (assuming that is actually feasible). Moreover, there is no basis for concluding that in the event the Board determines it has authority pursuant to 10 C.F.R. 9 2.107(a), the Board must necessarily require that the Marble 11111 site be restored, as is asserted, to its pre-construction state. There is no basis presented by Audubon or STV, either factual or legal, for reaching such a conclusion. Rather, the circumstances of this case appear to i require that the site be stabilized to prevent soil erosion until the utility determines what future use should be made of the site. As the attached
-44/ Applicants asserted in their motion for termination that "there will be no change in the fundemental character of the Zimmer site as one for the generation of electric power." " Motion For Withdrawal of Application," March 20, 1984, at 2. Although Zimmer can be distin-
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guished from Marble Ilill on this basis, in the $taff's view, it would not be sound to hinge the degree of site redress upon the existence (or lack thereof) on such assertions. In other words, just because no such use has been mentioned for Marble Hill, complete site restoration is not necessarily required.
-45/ "NRC Staff's Further Answer To Motion For Withdrawal of Appli-cation ," August 17, 1984 (attached " Environmental Review of Cincinnati Gas & Electric Company's Request To Withdraw Zimmer OL Application," at 1.)
s
. supplemental affidavit of Dr. Samworth indicates, PSI has completed iniplementation of a stabilization program to prevent soil erosion.
Accordingly, there is no basis for concluding that any conditions need be imposed pursuent to 10 C.F.R. s 2 In7(n).
IV. CONCLUSION The liRC Staff, having reexarlined the record in this proceeding has determined that no notice of hearing was ever issued. For the reasons set forth above, it is the Staff's position that the Licensing Board has jurisdiction to entertain Applicants' motion, but that in the absence of the issunnce of a notice of hearing, the only authority the Board has is to grant or deny Applicants' request for termination of the proceeding.
Since the Applicants have cancelled the facility, the Staff urges that the Licensing Board terminate this proceeding.
Respectfully submitted, m@ M hw Marjorie U. Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 21st day of July,1986
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