ML20058A598
| ML20058A598 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 12/01/1981 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AIA, TASK-SE SECY-81-674, NUDOCS 8201110395 | |
| Download: ML20058A598 (8) | |
Text
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,. s p age Ot SECY-81-674 December 1, 1981 5ij e
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ADJUDICATORY ISSUE (Affirmation)
For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel t
Subject:
REVIEW OF ORDER CONCERNING SUA SPONTE ISSUES (In the Matter of Texas Utilities Generating Company et al.)
Facility:
Comanche Peak, Units 1 and 2 To inform the Commission of a Licensina
Purpose:
Board decision which n our opinion, i
Backcround:
In a decision issued July 24, 1981, the Licensing Board dismissed an intervenor from the proceeding but retained, pending completion of appropriate staff review, eight of that intervenor's eleven contentions pursuant to its sua
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sponte authority under 10 CFR 2.760a.
Upon review of that decision, the Commission determined that the Board had failed to adequately support the exercise of its sua sponte authority' with appropriate specific findings for each contention retained as required by i
CONTACT:
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See SECY 81-525. 1/
-Accordingly, in an order. issued.
September 22, 1981, theJCommission requested the Board to describe, as to each of the..eight' contentions, the "particular factors beyond the mere pendency of staff review upon which it bases its determination of the existence of 'a serious safety, environmental, or common defense and security. matter.'"
(attached).
Discussion:
On September 28,.1981, the. Board served-its second order concerning sua sponte issues,. setting forth the particular factors which it believes justifies the exercise of its sua sponte authority.
(attached).
offeis 3Hly~two such factors M 1) prevention of hearing and scheduling delays; and (2) absence.of any threshold information to justify missal of accepted contentions.
r the reasons set forth below, we be leve that 5
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Initially, the Board noted that "Ip] art of the reason for our sua sponte action results from serious delays in the hearing caused by frequent slippages in the issuance of staff-generated documents."
Order at 2.
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The Board has schedu ed a hearing to begin on 2/
1981 on two contentions and one board December 2, However, no formal board action has to be question.
scheduled concerning any of the eight contentions at The Staff has advised this office that a i
issue here.
resumption of the hearing is contemplated for mid-February, 1982.
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As to the second factor supporting the exercise of its sua sconte authority, the Board concluded that there was a significant difference between dismissal of an accepted contention and the assertion of a previously unraised issue sua sponte.
In the Board's view, once a contention is found to satisfy the threshold pleading requirements under 10 CFR 2.714, it achieves the status of a cognizable issue before the Board independent of its sponsoring intervenor.
Thus, dismissal of an intervenor for reasons unrelated to the merits of the intervenor's contentions "should not necessarily compel the automatic rejection of otherwise viable issues involving significant health and safety consequences."
order at 7.
Rather, "[i]n order to dismiss an accepted contention, some threshold level of informational justification should be satisfied.
Absent such threshold, the contention must be addressed directly by the Board.
" Id.
Because the SER contained 40 open Items and the retained contentions related to the resolution of those items, the Board held that it was 1
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Recommendation:
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Leonard Bickwit, Js.
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Attachment:
Orders Commissioners' comments or consent should be provided directly to 1981.
j the Of fice of the Secretary by c.o.b. Thursday, December 17, Commission Staff Office comments, if any, should be submitted to
.f the Commissioners NLT December 10, 1981, with an information copy i
If the paper is of such a nature to the Office of the Secretary.
that it requires additional time for analytical review and comment, i
the Commissioners and the Secretariat should be apprised of when comments may be expected.
I h d l d for affirmation at an open
.This paper is tentatively sc e u e 1981.
Please refer to meeting during the week of December 21, the appropriate weekly Commission Schedule, when published, for a specific date and time.
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ATOMIC SAFETY AND LICENSING BOARD l"
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y Before Administrative Judges:
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Marshall E. Miller, Chairman s
Dr. Kenneth A. McCollom
\\4 Dr. Richard F. Cole Docket Nos. 50 t.45 In the Matter of 50-445
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TEXAS UTILITIES GENERATING TOMPANY, ET AL. )
(Application for Operating License)
)
(Cemanche Peak Steam Electr.
- tation,
)
September 25, 1921 Units I and 2)
)
)
{.2?'B1 ORDER CONCERNING SUA SPONTE ISSUES By our Order issued JJ1y 24, 1981, the Intervenor ACORN was granted voluntary dismissal frem this proceeding.
Eight of ACORN's eleven acmitted contentions were adopted sua sconte by the Board pursuant to the provisions of 10 CFR 2.750a.
This Order noted that ACORN's " Contentions 12 through 19 are related to issues which the Staff is still revie ing,"
which issues may have significant health and safety consequences. The order was forwarded to the Commission in accordance with the latter's Memorandum dated June 30, 1981.
The Comission entered an Order dated September 22, 1981 (CLI-81-24),
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directing the Board to describe as to the sua soonte contentions the "particular factors beyond the mere pendency of staff review" upon which' it based its determination of the existence of "a serious safety, environmental, or cocrnon defense and security matter."
Part of the. reason MUNO
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l for our sua sponte action results from serious delays in the hearing caused by frecuent slippages in the issuance of Staff-generated documents.
c Accordingly, the following background information is brought to the attention of the Commission.
A 10-month delay is projected between the completion of Comanche Peak construction and the issuance of an operating license (August 28, 1981, Tenth Bevill Committee Report, p. 8).
The cost of such delay is estimated at $185,000,000 by the Applicant, or $145,000,000 by the DOE analysis (Ibid.,
Table 2).
The Licensing Board has exerted its best efforts to expedite the hearing schedule to reduce delays.
A hearing on NEPA and other selected issues, to commence December 2,1981, was established by the Scheduling Order of July 23, 1981, enclosed herewith as Attachment 1.
Tne Notice of e
Evidentiary Hearing on tnose issues has been published in the Federal Recister, and is enclosed herewith as Attachment 2.
Thirteen separate orders resolving various discovery controversies and motions were issued between July 20, 1981 and August 21, 1981.
i However, efforts to expedite the hearing have been frustrated by
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unreported and unexplained slippages.
The DES slipped from March 6,1981, I
to May 6, 1981, to May 22, 1981.
The FES slipped from August 12, 1981 to September 24, 1981. The SER was scheduled for June.11, but was issued July 15, 1981, with over 40 open items. 'The latest SER supplement (SSER) has slipped from August 12, 1981 to October 18, 1981, to December 12, 1981 4
(May 29, 1981 Blue Book; August 7, 1981 Blue Book; August 28, 1981 Bevill i
o j
Committee Report). The ACRS meeting and review has been deferred from July 9 to November 12, 1981 (Id.).
l In view of the unusually large number of open items (40) in the Staff's SER, the Board was exercising prudence in retaining Contentions 12-19, "at least until the Staff arrives at a position via supplements to the SER."
l 4
All of these open item contentions involve safety considerations.
Since they were admitted issues, the Board could better monitor their resolution and prevent them from getting lost in the shuffle of 40 open items subject
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to slippage, by retaining them sua sconte.
The substantial Staff slippages described above now put in jeopardy the date of the principal evidentiary hearing, which the Bevill Committee has consistently been informed will commence in fiarch,1982.
As a result, the 10-month delay now projected could well have an even greater impact un licensing completion dates.
These serious and unexplained slippages which impair the published schedule are very similar to changing circumstances or j
new information during the course of adjudication.
The Appeal Board has held that the Staff and other parties cannot leave the Board "in the dark" about changes or new information; " Changes j
may take place but they must be disclosed" (Duke power Comoany (William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623 at 625).
It was held in another case that "it cannot be overemphasized that it is of l
utmost importance for parties to keep the board abreast of changing circum-stances bearing on their cases" (Duke power Company (Catawba Nuclear Station, Units I and 2), ALAB-355, 4 NRC 397 at 406, fn, 26).
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4 Inasmuch as Contentions 12 through 19 involve open issues, their re:ention will enable tne Board to ascertain why there continue to se 40 open issues. This is unusual, and it has already adversely affected the timeliness of ACRS review.
No information or explanation has been furnished to the Board by the Staff.
The Appeal Board has analyzed the independent I
responsibilities of licensing boards and the Staff, noting that "It is one thing to recognize that the staff must have both independence and time to fulfill its environmental obligations.
It is quite another to infer that the staff's responsibilities override or dilute the Licensing Board's."1/
The Appeal Board then established the following procedure to handle significant delays that impact on licensing hearings:
"One thing the Board may do is ascertain why the staff document in question has not been forthcoming.
Certainly if it is to conduct the hearing in accordance with responsibilities assigned to it, the Board must at a minimum be entitled to look behind the staff's explana-tion for delay in submitting the environmental statement.
If the staff can provide adecuate assurance that it is acting as quickly and reasonably as the circumstances permit--and we emphasize the word reasonably--then the Board can ask no more and should reschedule the filing date accordingly.
"Where the Board finds, however, that the staff cannot demonstrate a reasonable cause for its delay, the Board may issue a ruling (with appropriate findings supported by the record) noting the staff's unjustified failure to meet a publication schedule.
It may then either proceed to hear other matters or, if there be none, suspend the proceedings until the staff files the necessary documents.
In either situation the Board, on its own motion or on that of one of the parties, may refer the ruling to us.
See 10 CFR 2.730(f). We would hear such referrals 1/ Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 202, 206-07 (1978).
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t expeditiously; and, were we to agree with the Board, we would certify the matter to the Commission.
Its authority to rectify the situation is undoubted.
"This procedure has several things to commend it.
First it does not impinge on the staff's independent responsibility for preparing impact statements.
Second, it would bring to the Commission's attention only those cases where boards at the licensing and appeal levels acreed about the cause of the delay.
Cf., 10 CFR 2.786(b)(i).(ii). And, third, it can aid in pinpointing responsibility for delays in the licensing process, a matter of concern to all."
(8 NRC at 207; footnotes omitted)
Retention by the Board of Contentions 12-19 will enable it to review the causes of delay and to make a reasoned judgment on the record, whether or not to invoke the procedures described in Offshore power, supra.
In its Order of July 24, 1981, the Board reviewed each of ACORN's I
Contentions 12 through 19 and for each contention specifically identified by number and description the related open items pending in the Staff Review (Order at pp. 15 through 19).
It is precisely because the Staff had not completed its review and reached its final position in these areas that the Board declined to dismiss the contentions.
The Board stated that it "... prefers to retain Contentions 12 through 19, at least until the Staff arrives at a position via sucolements to the SER."
(Emphasis supplied) i In its SER, the Staff stated with respect to open issues that "the j
staff review of these items will be completed prior to a decision on issuance of an Operating License and will be reported in a supplement to this report" (pp.1-7, NUREG-0797, July 1981).
In the Board's view, to dismiss contentions and in effect sign off on these issues prior to even a statement from the Staff as to whether the issues can be resolved, would be neither prudent nor conservative.
)
It was anticipated by the Board that a favorable Staf f review would resul; in oismissal of these contentions, as was the case with ACORN Contentions 10 and 21 which even though listed as unresolved safety issues (Task Action Plan Nos. A-2 and A-36), were dismissed as issues.
The Board considered Contentions 10 and 21 to be sufficiently resolved on the basis of the Staff's information and description of their status, that it declined to raise them sua _soonte.
The Board also dismissed Contention 20 on the basis that the stated issue did not reach the status of a problem requiring sua soonte adoption.
However, such is not the case for Contentions 12
- hrough 18, for which very little information is available either in Applicant's filings or admittedly in the Staff's filings.
The issues raised in Contentions 12 through 19 were not initiated by the Board.
They were duly raised by an intervenor party (ACORN), and after thorough Board review they were acmitted as viable issues in this case.
It P
is the Board's view that there is a significant difference between the Board's dismissal of an accepted contention, and the assertion of c previously unraised issue sua sponte.
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Admitted contentions have necessarily satisfied the threshold pleading requirements of the Commission's Rules of Practice (10 CFR 52.714).
They have achieved the status of cognizable issues after Board analysis, and they have been available for discovery as to their bases by the opposing parties (10 CFR 52.740 et seo.). The voluntary dismissal for financial reasons of the party which pleaded these contentions, for reasons not b
7-connected with a disposition of these issues on their merits, should not necessarily compel the automatic rejection of otherwise viable issues involving significant heal.th and safety consequences.
In order to dismiss an accepted contention, it is the Board's view that some threshold level of informational justification should be satisfied.
Absent such threshold, the contention must be addressed directly by the i
Board and any relegation of that responsibility would in our opinion, be t
I dereliction of duty.
In the case of Contentions 12 through 19, the Board d'oes not have the required Applicant or Staff input upon which to base an informed decision to dismiss.
Accordingly, the Board wishes to retain Contentions 12 through 19 at this time.
Dr. Kenneth A. McCollom, who recently succeeded Dr. Forrest J. Remick
)
as a Board Member, did not participate in this Order.
It is so ORDERED.
THE ATOMIC SAFETY & LICENSING BOARD j
.. x,
Dr. Richard F. Cole ADMINISTRATIVE JUDGE WV sY E ~
Marshall E. Miller, Chairman ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland this 25th day of September,1981.
.