ML17340A511
| ML17340A511 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 12/16/1980 |
| From: | Bowers E Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-SP, NUDOCS 8012230047 | |
| Download: ML17340A511 (9) | |
Text
REGULATORY Il~INATION DISTRIBUTION SYSTI~ (RIBS)
ACCESSION NBR:8012?30047 'OC
~ DATE: 80/12/16 NOTARIZED:
NO FACIL.:50-250 Tuf key Point Pl.an.ti Uni't 3i Florida Power and Light C
50-251 Turkey Point Planti Unit 0i Fl:orida Power and Light C
AUTH,NAME, AUTHOR AFFILIATION BONERSPE.S.
Atomic Safety and Licensing Board Pane:1 REC IP ~ NAME RECIPIENT AFFILIATION 05000250 0
u 1
SUBJECT:
Notice of Comptrol 1er General 801203 opinion disal lowing pr ocedural assistance in adjudicatory licensing proceedings.
Comptroller General 801203 10tr to J Ahearne 8 Congressman M
McCormack encl'ISTRIBUTION CODE:
DS020:COPIES RECEIYED:LTR ENCL L
SIZE:
TITLE: Non - Antitrust Issuances NOTES:
ACTION:
~ INTERNAL
,EXTERNAL:
RECIPIENT ID CODE/NAME PARRISHi C, ASLAP IaE OELDiBLANTON PUBLIC AFFAIRS LPDR COPIES LTTR ENCL 1
1 5
5 2
2 2
2 1
1 1
1 RECIPIENT ID CODE/NAME GROTENHUIS i M ASLB NRC PDR REG FIL NSIC COPIES LTTR ENCL 1
1 1
1 1
1 1
1 1
1 1
1
~k'c g ~ leeO TOTAL NUMBER OF COPIES REQUIRE.D:
LTTR 18 ENCL 18
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:-
Elizabeth S.
Bowers,. Chairman Dr.
Emmeth A. Luebke Dr. Oscar H. Paris
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CO CP Xn the Matter of:
FLORIDA POMER 6c LIGHT COMPANY (Turkey Point Nuclear Generating Unit Nos.
3 and 4)
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Docket Nos.
50-250-SP
)
50-251-SP
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December 16, 1980 THE COMPTROLLFR GENERAL '
OP INION RELATIVE TO 'PROCEDURAL ASSISTANCE IN ADJUDICATORY LICENSING PROCEEDINGS
. On July 25, 1980, the Commission published the notice of "Procedural Assistance in Adjudicatory Licensing Proceedings" (45 Fed.
R~e
. 49535)'.
On December 3,
- 1980, the Comptroller General issued an opinion that this aid was not permitted under the law.
A copy of the Comptroller General's opinion and his letter to Chairman Ahearne is enclosed for your convenience.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
~C'let~
~
CC'~cd CQ c3 DMINISTRATXVE JUDGE f503 S
a LI ~
Orna>
CO"IPTROU-ER GENERAI OF TME UNITED ~ATES WASH INCTON. D.C.
RO54 ~
1K~Y acres ~
B-200585 December 3,,1980 Tne Honorable John,P.
Ahearne Cha'rman, nuclear Regulatory Commission
Dear Nr. Chairman:
'Pe are enclosing for your information ou letter of this
~ date to the Chairman, Subco~ttee on Energy Research,and Production, Co~tree on Science and Technology, House of Representatives.
Xn our let er ve conclude tnat the nuclear Regulatory Co~ssion may not lavfu3.lv use fund un s appropriarec by the Energy anc 4'ater Develop-ent Appropriation Act, l981, Pub. L. Yo.96-367, 94 Stat.
- 1331,
.to implement the procedural cost red'uct on program announced by the Conission in the
- ederal Register on July 25, 1980
(~5 Fed.
Reg.
49535).
Sincerely yours, Comptroller General of the United States
~
I'nclosure
COlvlPTROLLER GENERAL OF THE UNlTEO STATES Wh5k INGTOM. D.C 4LN4 3"200585 December 3,
1980 The Honorable
>Eke McCormack
- Chairman, Subcommittee on Energy Research and Production Committee on Science and Technology House of Representatives
Dear Mr. Chairman:
You have requested our opinion on the propriety of the procedural cost reduction program for intervenors being instituted by tne Nuclear Regulatory Commission;-
Tnis program is designed to ease the economic burden on intervenors in the Commission's adjudicatory proceedings by providing free copies of transcripts and by copying and serving witnout charge certaia of the documents the intervenors'need to participate in the proceedings.
Under the program the Commission has also reduced from 20 to 2 the number of copies of filings required of all parties.
For the reasons indicated below, we conclude that, with the exception of the reduction of required copies, the Commission may not lawfully use its fiscal year 1981 appropriation to implement the cost reduction program.
The Commission's adoption of the p".ogram was announced in the Federal Register on July 25, 1980, (45 Fed.
Reg.
49535).
The program was effected by means of -three amendments te the. Commission' regula-tions relating to adjudicatory licensing proceedings in 10 CPR Part 2.
First, Section 2.708(d) of that part was amended by reducing from 20 to 2 the number of copies of pleadings or other documents that every, party.to the proceeding is-required to file.
,'Second; -Section 2.712 was amended by adding a provision that, except in antitrust proceedings, the Commission will copy and serve, at no cost to the party, tne party's testimony, proposed findings of fact and con-clusions of'aw, and responses to discovery requests.
This free copying and service is available to all parties to the proceeding except the applicant or the license.
Third, Section 2.750 was amended'y adding a provision allowing the presiding. officer at the proceeding to provide a free transcript. of the proceeding to any party,.other than the applicant, at the same time tnat the Commission staff receives its copies.
B-200585 Funds-for-carrying-out-the-Commission's-functions for fiscal'ear
- 1981, were appropriated by the Energy and Rater Development Appropriation Act, 1981, Pub. L. No.96-367, 94 Stat.
1331.
Section 502 of this Act provides':
"Hone of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act." (94 Stat.
1345)
It is clear from this langua'ge that if the procedural cost reduction program will pay the expenses of intervenors in the Commission's adjudicatory proceedings the Commission may not use funds unappropriated by the fiscal year 1981 Appropriation Act to implement the program.
Obviously the cost reduction program vill apply to the Commission's =adjudicatory proceedings.
Tne very 'title of the Federal Registez announcement.("Procedural Assistance in Adjudicatory Licensing Proceedings" ) and.the Federal Register summary
("NRC is amending its regulations in order.to provide a one-year pilot program of procedural assistance in adjudicatory proceedings
~-"-")
make this clear.
It is equally clear that the-beneficiaries of the program are to be intervenors in the Commission's proceedings.
The amended regulations state that the free transcr'pts,
- copies, and service, are to be provided to parties "other than the-applicant."-
-The explanatory material in the Federal Register announcement indicates that procedural assistance will be offe ed "to all intervenors without qualification" (45 Fed.
Reg.
49535), that copies of transcripts will be "mailed to intervenors",(Id. at-49536),
and that the fzee copies of-. documents -will reduce-costs "to intervenors" '(Id.).
Finally, it is certain that the program will ",pay the expenses of" the intervenors.
- Clearly-if the Comission"did not-adopt.the cost reduction program then the costs of purchasing transcripts and copying and serving documents would be expenses that the intervenors would have to bear if they were to participate in the Commission's proceedings.
By bearing these costs itself, the Commission is necessarily paying expenses of the intervenors even though the Commission=is-not-making any cash payments directly to"the intervenors.
Although tne Commission's amended regulations.speak of-copies.--
without cost" to the intervenor, and of " ree" transcripts, these copies and-transcripts will not be "withou't cost" or "free" to the
B-200585 ommission.
The.,Commission will"have-to expend its zppropx'iated moneys to make copies of documents and to pay the reporters the price of the transcripts.
The Commission itself, in its Federal Register announcement recognizes that it will be paying intervenor expenses.
The announcement. indicates that intervenors might ordi 1
or narn. y pay zs much as
$1,000 per day to obtain transcripts and that b providing them to the intervenors at its own expense the Commission is providing "an expensive service,"
45 Fed.
Reg.
49535.
- Further, by providing free copies of certain documents and by serving them on behalf of the.intervenors, the Commission would be performing "z* service which would have high payoff in terms of reaucing costs to intervenors
- ++" Id. at 49536.
There ore, we must conclude that ix the Comission implements its procedural cost reduction program using its fiscal veer 1981 o
t e ppropriation appropriations it. will be violating Section. 502 f th A
Act ~
The Commission's legal analysis, submitted with the request for our opin"'on, 'discusses language 'n the House report on the fiscal year 1980 Comission Appropriations Act that "The budget request znd tne committee recommendation ao not include funds
'or intervenors."
(H.R. Report Ho.96-243, 96th Cong., 1st session 136. (June 7, 1979).
The language of Pub. L. No.96-367, auoted
- above, however, is stronoer because-it-.pr 1
d
-.prec u e's paying the expenses ox or otherwise compensating intervenors in additi;on to precluding the direct provision o=. funds to intervenors.
The legal analysis zlso asserts that our 1976 decision on Comiission
.'ntervenor funding, B-92288, February 19,
- 1976, found "no legal problems" with proceciural cost reduc" ons of the sort cia e sort now proposeci.
- However, the context of the. discussion of cost reduction in that decision'was limited'o "simplifying procedures and el unnecessary or unduly burdensome requirements" r-th
. th h'i i the cost burden of unchanged procedures and requirements from intervenors to the Commission.
Our conclusion does not apply to the Commission's
'amended regulation which states that all parties to the proceeding need file only the, original and 2.copies "of pleadings and other documents instead of the original anci 20 copies which was fo 1
ic was ormer y eauired.
In our opinion by making this zmendment the Cocmnission-=--'n adjuaicat ion cost. for all of the,pz" ties by modifying its procedural requirements.
As indicateci in the previous p"ragr h
paragrap we cietermined in our 1976 decision tha the Cormission does, have the authority to simplify proceaures or eliminate unnecessary or
B-200585 unduly burdensome requirements which increase parties'osts in participating in the Commission's proceedings.
B-92288, Fe'oruary 19, 1976.
The Federal Register.
announcement indicates that the 20 copy requirement was "for the Commission's convenience for internal informational distribution -*-"
45 Fed.
Reg.
49536.
- Further, these 20 copies only partially met the Commission's needs and the Commission therefore produced additional copi'es.
Therefore, tne cost of producing the 20 copies was not a necessary
- expense, o
participating in the Commission's proceedings,,
but rather was an instance of the Commission requiring the parties to tahar part of its own expenses.
By eliminating this requirement-for all
- parties, including intervenors, the Commission is! not paying intervenor's expenses.
In your letter you posed questions concerning whethe" th
~
'xnission s program was consistent with the wishes of the Congress as expressed at H.R. Report No. 96-'243, 96th Cong., 1st Sess.
139
.(1979); with the Independent Offices Appropriation Actof 1952, No. A-2 31 U.S.C.
5 483a;
.and with Office of Management and B d t C'l
~
f an u get irc ar
- o. A-25.
The enactment of Pub. L. Ho.96-367, after you sent you" letter, makes it unnecessary, in our opinion, to address the other'uestions posed in your letter.
Ve have discussed this witn a member of the subcommittee staff wno indicated that in the interest of avoiding unnecessary delay we need not answer the other-questions in your letter.=
lt Sincerely yours, of the United States
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In. the Matter of FLORIDA POWER AND LIGHT -COMPANY
.(Turkey Point Plant, Unit No. 3)
Docket No. 50-250 (10 CFR 2.206)
ORDER Pursuant to 10 CFR 2.772, review the Director's decision
'ber 22, 1980.
It is so ORDERED.
the Commission's time to decide whether to regarding this facility is extended to Octo-For the Commission Dated at Washington, D.C.,
'2 this ado 'ey of September 1980.
SAMUEL J ecretary of ILK he Commission
UNITED STATES. OF AMERICA NUCLEAR REGULATORY CO~SS ION In the Matter of
)
)
FLORIDA PO<iKR AND LIGHT COMPANY'
)
(Turkey Point, Unit 3)
)
)
)
).')
Docket No.(s) 50-250 (2.206 Request)
CERTIFICATE OF SERVICE I hereby certify that
~I have this day served the foregoing document(s) upon each person designated on the official -service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance with the requirements of Section 2.712 of 10 C.=R Part 2-Rules of Practice, of the Nuclear Regulatory Comission's Rules and Regulations.
Dated at Vashington, D.C. this
/
day of W PC@
19/~.
Office of "'tne Secretary of tne Commission Counsel for NRC Staff Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Norman A. Coll, Esq.
- Steel, Hector and Davis 1400 S.E. First National Bank Building Miami, Florida 33131 Dr. Robert E. Uhrig, Vice President Florida Power and Light Cbmpany Advanced Systems
& Technology P.O.
Box 529100 Miami, Florida 33132 M'arti'n H. Hodder,. Esq.
1131 N.E. 86th Street Miami, Florida 33138 Ms. Cheryl Anderson Flamnan 1023 Polk Street Hollywood, Florida