ML19290C034
| ML19290C034 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 01/02/1980 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19290C035 | List: |
| References | |
| NUDOCS 8001090061 | |
| Download: ML19290C034 (5) | |
Text
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ftMISSION 1/2/80 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of SOUTH CAROLINA ELECTRIC & GAS COMPANY )
Docket No. 50-395
)
(Virgil C. Summer Nuclear Station,
)
Unit 1)
)
NRC STAFF RESPONSE TO APPLICANT'S MOTION TO SCHEDULE A HEARING DATE ON JANUARY 22, 1980 On December 14, 1979, the Applicant filed a motion to schedule a hearing in the captioned proceeding for January 22, 1980.
The Applicant's November 29, 1979 motion to dismiss the Intervenor is pending before the Board which, on December 20, ordered the Intervenor to answer the motion to dismiss by January 10, 1980 or face dismissal as an intervenor or dismissal of those contentions that the Board deems appropriate.
The following contentions remain in issue in this proceedinp: A2 (financial qualifications / decommissioning costs); A3 (ATWS); A4 (seismicity); A8 (emer-gency plans); A9 (quality control); and A10 (health effects). The NRC Final Environmental Statement (FES) is estimated to issue on or about May, 1980.-1/
The NRC Safety Evaluation Report (SER) is estimated to issue on or about August, 1980.-2/The Staff's nominal estimate of the completion date for construction of the Summer station is between November,1980 and February, 1981.
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1_/ See attached Staff affidavit of Robert A. Gilbert.
2_/ See attached Staff affidavit of Robert L. Baer.
8001090 h[I
et.
As the Staff indicated in its September 6,1979 coments upon the Board's Memorandum and Order of August 6,1979, the Staff does not believe that it would be appropriate to present its direct case until, issuance of the FES and SER. As the Appeal Board observed in Offshore Pcwer Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194,197 (1978):
Comission regulations require the staff to complete this [ environmental] evaluation and prepare a final environmental impact statement before taking any position on environmental issues at the licensina board hearing on the proposal.
Moreover,10 C.F.R. Part 2, Appendix A V.(d)(2) states, in part:
The staff's position is reflected primarily in the safety evaluation and final detailed environmental statement. Consequently, the staff will not pre-sent its case until these documents are available.
The Applicant seems to acknowledge that 10 C.F.R. 651.52(a) prevents the Staff from taking a position on contention A10, the sole environmental con-tention remaining in issue, prior to issuance of the FES and seeks an "exemp-tion" therefrom in order to avoid delay in the hearing.
Motion at 5 n. 4.3/
Section 2.758 of the Comission's regulations establishes the procedures for seeking the waiver of, or an exception to, a particular Comission rule or regulation in an adjudicatory proceeding.
That regulation provides that a party may petition that the application of a particular rule or regulation be waived or an exception thereto made upon a prescribed showing with supporting affidavit. Any other party may file a response thereto, by counter-affidavit 3/ It would appear that the Applicant has mistakenly referenced Contention A9 rather than Contention A10, as the subject of this particular request for relief. Contention A9 is not an " environmental" contention whose litigation must await the FES.
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i or otherwise. The Board must then decide whether the petition for waiver or exception should be certified to the Commission for disposition. The Applicant has not filed the requisite petition and affidavit in this instance so as to obtain a waiver or exception from the pertinent provisions of 10 C.F.R. 151.52(a).
No license may issue in this proceeding until resolution of all contentions.
Moreover, the FES in all likelihood will issue prior to the SER (or partial SER) and resultant hearing on safety contentions. Thus, litigation of contention A10 prior to litigation of the remaining safety contentions would not substantially expedite the proceeding.
The Staff is currently considering the feasibility of issuing a partial SER, or the equivalent, on some of the contentions.
If such a course proves feasible, the Staff may be in a position to present its direct case on con-tention A4 (seismicity) on or about July, 1980 and its direct case on 4/
contention A3 (ATWS) on or about September, 1980- (should the estimated date for issuance of the SER be delayed). All of these dates are subject to change due to Staff resource constraints brought about by the Three Mile Island S/
accident and subsequent regulatory activities.- The Staff is not in a position to offer a firm estimate of the date by which it could be prepared to go forward 4_/ This date would follow the expected establishment of a proposed rule on ATWS around July, 1980. Baer affidavit at 3.
,5_/ Baer affidavit at 2.
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6/
on contentions A2 (financial qualifications / decommissioning costs)," A8 7/
8/
(emergency plans), or A9 (quality control).-
The Applicant's motion asks the Board to intercede in the orderly administra-tion of the Staff technical review process. Unuer the prescribed regulatory scheme, the Staff is entrusted with the responsibility for conducting the necessary review and evaluation of nuclear license applications.
Licensing Boards are empowered to preside over the hearing portion of the process. The Commission has not delegated the authority to supervise the Staff's review of license applications to sucu Boards. As one Licensing Board succinctly noted:
Under the Cormiission's regulatory scheme, the Staff is given the duty of reviewing applications for li-censes (Section 2.102).... The Commission has delegated to the Licensing Boards power and duties with respect only to the hearing process (2.104 and 2.718). The Staff's review and reporting function is largely completed in a setting outside the hearing process and therefore without the purview of the Licensing Board. The fact that the two areas of activity may proceed, for a time, concurrently, does not extend to the Board any supervisory authority over that part of the process that has been entrusted to the Staff.
Northeast Nuclear Energy Company, et al., (Montague Nuclear Power Station, Units 1 and 2), LBP-75-19, 1 NRC 436 (1975); accord, New England Power Co.
(NEP, Units 1 and 2), LBP-78-9, 7 NRC 271, 279 (1978).
6/ This is customarily one of the last items evaluated by the Staff and will likely be reviewed in a supplement to the SER.
_7_/ This is the subject of proposed rulemaking. See Proposed Rule published December 1979 (44 F.R. 75167); Proposed Rule published September 19, 1979_
(44 F.R. 54308); See also Advanced Notice of Proposed Rulemaking published July 17, 1979 (44 F.R. 41483).
8/ This general subject area is one normally reviewed following the substantial completion of construction (or anywhere from November, 1980 to February, 1981herein). Baer affidavit at 4.
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. CONCLUSI0fl On the basis of the above, the Staff opposes the Applicant's motion to schedule a hearing in this matter on or about January 22, 1980.
Respe::tfully submitted, l$sa.s Q.LI' !
Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of January,1980.
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