ML20214W503

Memorandum & Order (Denying Intervenors Motion to Admit late-filed Contentions on Financial Qualifications).* Rorem, Et Al 870506 Motion Re Financial Qualifications of New co- Licensees Denied for Want of Jurisdiction.Served on 870611

ML20214W503
Person / Time
Site:	Braidwood
Issue date:	06/10/1987
From:	Smith I Atomic Safety and Licensing Board Panel
To:	ROREM, B.
References
CON-#287-3718 79-410-03-OL, 79-410-3-OL, LBP-87-19, OL, NUDOCS 8706160058
Download: ML20214W503 (4)

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LBP-87-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COPt!ISSION '87 JtN 11 P1 :33 ATOMIC SAFETY AND LICENSING BOARD orrm ,

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Before Administrative Judges: E9 Ivan W. Smith, Chainnan Dr. A. Dixon Callihan SERVED JUN 111987 Dr. Richard F. Cole ,

In the Matter of Docket Nos. 50-456-0L

) 50-457-OL COMMONWEALTH EDIS0N COMPANY ASLBP No. 79-410-03-0L (Braidwood Station, Units 1 and 2)

June 10, 1987 MEMORANDUM AND ORDER DENYING INTERVENORS' MOTION TO ADMIT LATE-FILED CONTENTIONS ON FINANCIAL OUALIFICATIONS On May 6,1987 the Intervenors, Rorem, et al. filed a motion, purportedly pursuant to 10 C.F.R. 6 2.417, moving the Board to admit a late-filed contention concerning "the financial qualifications of the potential new co-licensees of Braidwood." The motion is founded on

( infonnation supplied by Comonwealth Edison about the proposed new ownership and financing arrangements for Byron 2 and the Braidwood Units. As Intervenors' motion acknowledges, Edison has to date applied for an operating license amendment to authorize the changes for only Byron 2. However, Edison has signaled its intention to apply for a l

similar amendment to the Braidwood operating licenses.

In effect Intervenors' motion is not a motion to add a late contention to the Braidwood operating license proceeding. It is 8706160050 870610 PDR 0 ADOCK 05000456 '/

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functionally an effort to anticipate the filing of an application for a Braidwood operating license amendment and to insert the financial qualification issue into any proceeding stenning from that application.

This Board is without jurisdiction to consider the merits of Intervenors' motion. The Board was established pursuant to the Connission's notice of hearing to preside over the operating license proceeding.1 Our jurisdiction over the Braidwood facility will teminate when our jurisdiction over the operating license proceeding teminates.2 That is to say, as the Connission's delegates under the notice of opportunity for hearing, we were granted jurisdiction solely for the hearing thereby ordered, but not for any future proceeding founded upon new applications.

This principle of licensing board jurisdiction is well settled.

For example, in Carolina Power and Light Company (Shearon Harris Units 1, 2, 3, and 4), LBP-79-19,10 NRC 37 (1979), a Licensing Board, established to preside over the Shearon Harris construction pemit proceeding, attempted to extend its jurisdiction into a future I See 43 Fed. Reg. 58659, December 15, 1978 (Notice of Opportunity for Hearing) and 44 Fed. Reg. 5732, January 29, 1979 (Establishment of Atomic Safety and Licensing Board To Preside in Proceeding).

2 The Licensing Board's initial decision authorizing operation of the i Braidwood facility issued on May 19, 1987 and May 22, 1987.

LBP-87-14, LBP-87-14A, 25 NRC (1987). A notice of appeal by Intervenors was filed on June U 987. However, the Intervenors' motion was not disposed of before the initial decision issued.

Therefore we retained jurisdiction to address in the first instance at least the jurisdictional aspects of the motion.

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proceeding by requiring that the issue of management capability be included in the operating license notice of hearing. Id.

d at 98-99. The Shearon Harris Appeal Board, however, reversed and. vacated the Licensing Board's action, noting that ". . . [A]n authorization to conduct an adjudicatory proceeding pursuant to a notice of hearing issued by the Commission does not carry with it by necessary implication the power to order the initiation at a later date of a separate and distinct proceeding." ALAB-577, 11 NRC 18, 30. Although the Comission in Shearon Harris reversed the Appeal Board on other grounds, it agreed that the Licensing Board's attempt to influence future proceedings exceeded the authority granted by the notice of hearing. CLI-80-12, 11NRC514,516(1980), citing Florida Power and Light Company (Turkey Point Units 3 and 4), 4 AEC 9, 15-16 (1967).

Approaching the issue from a slightly different perspective, it is true that the Notice of Opportunity for Hearing in the Braidwood operating license proceeding, in the comon form for such notices, did not exclude consideration of financial qualification issues from the proceeding. Except for the Comission's Policy and the provisions of 10CFR92.104(c)(4),thisBoardmighthavehadjurisdictionoverthe issue of Comonwealth Edison's financial qualification to engage in the activities under the license applied for. But Intervenors' motion, by its very terms, is relevant only to a corporate structure and method of financing not yet in existence. The proffered contention can become an issue only when, and if, the Licensee applies for a Braidwood operating license amendment, and when, and if, the Comission publishes a notice l

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i 4-of opportunity for hearing on that application. For this Board to accept the financial qualification issue before the respective proceeding even comences would be clearly contrary to the Appeal Board and the Comission Shearon Harris decisions, supra.

The motion therefore is denied for want of jurisdiction.

This is an appealable order. It disposes of the last issue before the Licensing Board.

FOR THE ATOMIC SAFETY AND LICENSING BOARD WIvanf844 W W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Bethesda, Maryland June 10, 1987 i

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