ML17138B217
| ML17138B217 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 04/04/1980 |
| From: | Cutchin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8004150069 | |
| Download: ML17138B217 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehan'na Steam Electric Station, Units 1
and 2)
)
)
)
Docket Nos.
50-387
)
- 88
)
)
)
NRC STAFF '
ANSWER IN, OPPOSITION TO ECNP '
PETITION FOR COMMISSION REVIEW OF LICENSING BOARD'S PREHEARING RULINGS James M. Cutchin IV Counsel for NRC Staff April 4, 1980
~a 0OCi So ale
I t
i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION April 4, 1980 In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
)
(Susquehanna Steam Electric Station,
)
Units 1
and 2)
)
Docket Nos.
50-387 50-388 NRC STAFF'S ANSWER IN OPPOSITION TO ECNP'S PETITION FOR COMMISSION REVIEW OF LICENSING BOARD'S PREHEARING RULINGS I.
INTRODUCTION On March 15, 1980 Intervenor Environmental Coalition on Nuclear Power (ECNP) served the NRC Staff with a document entitled "Request to the NRC Commissioners for Expedited Consideration of Actions of an Atomic Safety and Licensing Board and Other Matters."
The Licensing Board's actions of which Commission review is sought are:
(1) scheduling and discovery rulings made by the Licensinq Board in the currently ongoing prehearing phase of this operating license proceeding, (2) the Licensing Board's refusal to certify to the Coranission questions related to the Licensing Board's discovery rulings and (3) the Licensing Board's refusal to certify to the Commission ECNP's request that a Commissioner sit as a member of the Licensing Board. For the reasons set forth below the Staff opposes the 1/
petition for review.
The Licensing Board's actions mediating the claims of the parties on these issues are set forth in the Board's "Memorandum and Order on Scheduling and Discovery Motions (I)" of August 24, 1979, "Memorandum and Order on Discovery Motions (II)" of October 30, 1979 (LBP-79-31, 10 NRC 597) and "Order Denying Requests of ECNP" of December 6, 1979.
II.
BACKGROUND In this operating license proceeding the Staff and the Applicants propounded a series of interrogatories to Intervenor ECNP.
As allowed by 10 CFR 2.740 2/
of the Commission's Rules of Practice, these interrogatories sought information related to contentions admitted to the proceeding by the Licensing Board.
ECNP answered some but failed to fully answer many of the interrogatories.
Following motions by the Applicants and the Staff to compel proper answers to their inter-rogatories, the Licensing Board ordered ECNP to respond to the discovery requests of Applicants and the Staff within fourteen (14) days of service of its order.
3/
Rather than providing answers or specific objections as directed, ECNP filed a response to the Licensing Board's Order which provided some answers but generally objected to most of the interrogatories. Applicants and Staff filed motions 4/
seeking dismissal of ECNP and its contentions from the proceeding for its failure to obey the Licensing Board's discovery order.
The Licensing Board declined to dismiss ECNP and its contentions from the proceeding, but granted ECNP (and the other intervenors) relief from certain of the discovery obligations imposed earlier and extended the time for intervenors to respond to December 14, 1979.
5/
"NRC Staff's First Round Discovery Requests of the Environmental Coalition on Nuclear Power (ECNP)" dated May 21, 1979 and "Applicants'irst Set of Interrogatories to Intervenor ECNP" dated May 25, 1979.
3/
"Memorandum and Order on Scheduling and Discovery Motions (I)" dated August 24, 1979.
(Slip opinion at 13 and 15).
~4 Responses of ECNP Intervenors to Board Memorandum and Order Compelling Intervenors to Answer Applicant and Staff Interrogatories" dated September 17, 1979.
"Memorandum and Order on Discovery Motions (II) dated October 30, 1979,"
However, the Licensing Board stressed the need for the intervenors to respond in a timely fashion to their remaining discovery obligations. The Licensing 6/
Board also advised the intervenors of the potential consequences of their continued 7/
failure to fulfilltheir discovery obligations.
In response to that order, ECNP filed a document asking the Board to certify to the Commission the questions that are the subject of the instant ECNP petition 8/
and again sought a protective order. The Licensing Board denied ECNP's requests and extended the date for the intervenors'esponses to their outstanding dis-covery obligations to January 18, 1980.
9/
On that date ECNP filed a document containing insufficient answers to the out-10/
standing interrogatories.
Following receipt of this document the Applicants again moved the Licensing Board to impose sanctions on ECNP for its failure to obey the Licensing Board's discovery orders'he Licensing Board heard oral argument on the motion and related Board questions on March 20 and 21, 1980.
The Board declined to order the requested sanctions, Id. at 602.
6/
Id. at 606-7.
7/
~8 Intervenor s
Response
to Licensing Board Memorandum and Order of October 30, I
1979" dated November 19, 1979.
Order Denying Requests of ECNP" dated December 6, 1979.
9/
ii 10/
"ECNP's Responses to Board's Memorandum and Order on Discovery Motions (II)"
dated January 18, 1980.
granted ECNP (and other intervenors) additional relief from discovery obligations, and extended to May 1, 1980, the date for intervenors'nswers to interrogatories.~llI Prior to the Board's ruling, ECNP on March 15, 1980, filed the present petition for review by the Commission.
In this petition ECNP makes nine requests for 12/
relief. In eight of its requests ECNP seeks relief either from scheduling and discovery rulings made by the Licensing Board in the currently ongoing pre-hearing phase of this operating license proceeding or from the Licensing Board's refusal to certify questions related to its discovery rulings.
In the ninth request ECNP appeals the Licensing Board's refusal to certify its request that a
Comnissioner sit as a member of the Licensing Board.
III.
ARGUMENT There is no provision in the Commission's Rules of Practice for a direct appeal to the Commission of a Licensing Board's interlocutory rulings.
As here relevant, the Commission's Rules of Practice forbid appeal of the interlocutory rulings of Licensing Boards.
10 C.F.R. 2.730(f) states:
"No interlocutory appeal may 13/
be taken to the Commission from a ruling of the presiding officer."
/"Memorandum" dated March 27, 1980.
ECNP Petition at 3-5.
12/
See 10 C. F. R.
- 2. 730(f).
See Penns lvania Power and Li ht Co.
(Susquehanna 13/
Steam Electric Station, Units 1
and 2, ALAB-563, 10 NRC 449 (1979);
Duke Power
~
~
~
~
~
~
Comnan (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-433, 6 NRC 469 1977; Public Service Com an of Oklahoma (Black Fox Station, Units 1
and 2),
ALAB-370, 5 NRC 131 1977
, and cases there cited.
But see 10 C.F.R. 2.714a.
Moreover, although it is clear that the Commission has the power to undertake interlocutory review of any matter in any proceeding before any Board at any 147 time,~
the Commission has delegated to the Appeal Board the Comission's authority to review a Licensing Board's rulings and actions in the first instance.
15/
Where no attempt has been made to obtain review by the Appeal Board, such an appeal should be dismissed for failure to exhaust remedies below.
16/
In appropriate circumstances attempts to obtain interlocutory review have been treated as requests that a Licensing Board be directed to certify questions for 17/
interlocutory appellate review. However, this is not an instance where discretionary interlocutory review would be granted.
As recently as November 20,
- 1979, the standard for directed certification of interlocutory rulings was 18/
reiterated.
Puaet Sound Power 8 Li ht Co.states:
See United States Ener Research and Develo ment Administration, Pro ect
/
Mana ement Cor oration Tennessee Valle Authorit Clinch River Breeder Reactor Plant, CLI-76-13, 4
NRC 67, 74-76 1976; Public Service Com an of New Ham shire (Seabrook Station, Units 1
and 2), CLI-77-8, 5
- 516, 517 1977, affirmed New En land Coalition on Nuclear Pollution v.
- RRC, 582 F.2d 87 ~1st Cir.
1978 See also, Florida Power and Li ht Com an
~St.
Lucie Plant, Units Nos.
1 and
~2
, CLI-77-15, 5
NRC 1324, 1325 1977 15<~ See 10 C.F.R. 2.785(a)(1);
Vermont Yankee Nuclear Power Cor oration (Vermont Yankee Nuclear Power Station
, ALAB-56, 4 AEC 930, 931 1972 But see:
Metro olitan Edison Com an (Three Mile Island Nuclear Station, Unit~1 CLI-79-8, 10 NRC 141, 147 1979) for an exception not here applicable.
See also:
Interim Statement of Polic and Procedure, 44 Fed.
~Re 58559 (19~79 16See 10 C.F.R. 2.786(b)(4)(iii) which states:
"A petition for review fby the Commission] will not be granted to the extent it relies on matters that could have been but were not raised before the Atomic Safety and Licensing Appeal Board."
Cf. Public Service Co. of New Ham shire (Seabrook Station, Units 1
5 2), CLI-77-25, 6
NRC 535, 537 1977 See 10 C.F.R. 2.718(i); Public Service Com an of New Ham shire (Seabrook 17/
- Station, Units 1
and 2), ALAB-271, 1
NRC 478 1975 Pu et Sound Power and Li ht Com an
, et al. (Skagit Nuclear Power Project, 18/
Units 1 and 2
, ALAB-572, 10 NRC
, slip op.
p.
2 (1979).
Almost without exception in recent times, we have under-taken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with iranediate and serious irreparable impact which, as a practical matter, could not be alle-viated by a later appeal or (2) affected the basic struc-ture of the proceeding in a pervasive or unusual manner.
(Citing Public Service Com an of Indiana (Marble Hill, Units.1 and 2
, ALAB-405, 5 NRC 1190, 1192 (1977).)
I Since Marble Hill was decided, discretionary interlocutory review has been granted only sparingly.
1P A number of decisions shape the parameters of the concept of discretionary interlocutory review.
Directed certification "is to be resorted to only in exceptional circumstances.
Objections to procedures for 2P'andling prehearing motions do not present a proper subject for directed P.1I certification. Certification will not be directed to review rulings on 22/
interrogatories.=
Directed certification will not be granted to review a
scheduling controversy where the controversy does not bring.to the fore any limitations imposed by law on the Licensing Board's jurisdiction or authority and where no "truly exceptional situation" is involved.
Id. at 3, n.
5.
19'onsumers Power Com an (Midland Plant, Units 1
and 2), ALAB-382, 5 NRC 20'03, 606 1977 Puerto Rico Water Resources Authorit (North Coast Nuclear Plant, Unit 1),
2V ALAB-361, 4 NRC 625 1976 Lon Island Li htin and Power Com an (Jamesport Nucle'ar Power Station, 23'nits 1
and 2
, ALAB-318, 3 NRC 186 1976).
Public Service Com an of New Ham shire (Seabrook Station, Units 1
and 2),
ALAB-295, 2 NRC 668 1975
ECNP correctly characterizes its requests as related to procedural aspects of the proceeding.
The rulings appealed from are interlocutory.
As stated in 24/
Toledo Edison Co.:
, 25/
The test of "finality" for appeal purposes before this agency (as in the courts) is essentially a
practical one.
As a general
- matter, a licensing board's action is final for appellate purposes where it either disposes of at least a major segment of the case or terminates a party's right to participate; rulings which do neither are interlocutory.
Here the scheduling and discovery rulings do not dispose of any segment of the case and do not terminate any party's right to participate.
Any alleged prejudicial errors stemming from, among other things, rulings on discovery and schedules are reviewable on exceptions to the Licensing Board's initial decision at the end of the proceeding.
26/
Nor does the refusal of the Licensing Board to certify ECNP's request that a Commissioner sit on the Licensing Board merit review.
The Commission has not elected to alter the normal makeup of the Licensing Board to include a
Commissioner.
ECNP's baseless allegations do not suggest that the standards for disqualification of a Board member have been met.
ECNP Petition at l.
Toledo Edison Com an (Davis Besse Power Station),
ALAB-300, 2 NRC 752, 25/
758 1975 26/See:
Northern Indiana Public Service Com an (Bailly Generating Station, Nuclear-1
, ALAB-224, 8 AEC 244 1974 and ALAB-302, 2 NRC 858 (1975).
27/ECNP's citation of 10 C. F. R.
- 2. 704(c) in footnote 5 at page 4 of its request indicates its awareness of the proper procedure and support required when disqualification of Licensing Board members is sought.
IV.
CONCLUSION For the reasons discussed
- above, ECNP's interlocutory appeal should be denied.
Should the Commission nevertheless grant the appeal, the Staff requests that it be allowed the opportunity to address the merits of the individual requests for relief made by ECNP as it would be upon the grant of review by the Commission of Appeal Board decisions and actions.~28/
Respectfully submitted, James M. Cutchin IV Counsel for NRC Staff Dated at Bethesda,
- Maryland, this 4th day of April, 1980.
See 10 C.F,R. 2.786(b)(6).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COJ'N<ISSION BEFORE THE COMMISSION In the Matter of PENNSYLVANIA POWER AND LIGHT CO.
)
ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
(Susquehanna Steam E1ectnic Station, Units 1 and 2)
)
Docket Nos.
50-387 50-388 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER IN OPPOSITION TO ECNP'S PETITION FOR COHHISSION REVIEW OF LICENSING BOARD'S PREHEARING RULINGS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk by deposit in the Nuclear Regulatory Commission internal mail system, this 4th day of April, 1980:
Charles Bechhoefer, Esq.,
Chairman*
Atomic Safety and Licensing Board Panel U.S.
t uclear Regulatory Commission Washington, D.C.
20555 Mr. Glenn 0. Bright*
Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washirgton, D.C.
20555 Dr. Oscar H. Paris*
Atomic Safety and Licensing Board Panel U.S. Nuclear R gulatory Commission Washir<gton, D.C.
20555 Jay Silberg, Esq.
- Shaw, Pi ttman, Potts and Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 Dr. Judith H. Johnsrud Co-Director Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, PA 16801 Mr. Thomas M. Gerusky, Director Bureau of Radiation Protection Department of Environmental Resources Commonwealth of Pennsylvania P.O.
Box 2063 Harrisburg, PA 17120 Ms. Colleen Harsh Box 538A, RD=,'4 Mountain Top, PA 18707 Mrs. Irene Lemanowicz, Chairperson The Citizens Against Nuclear Dangers P.O.
Box 377 RD¹1
- Berwick, PA 18503
Susquehanna Environmental Advocates c/o Gerald Schultz, Esq.
500 South River Street Wilkes-Barre, PA 18702 Atomic Safety and Licensing Appeal Board Panel*
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Bryan A. Snapp, Esq.
Pennsylvania Power 8 Light Company Two North Ninth Street Allentown, PA 18101 Mr. Robert M. Gallo Resident Inspector P.O.
Box 52 Shickshinny, PA 18655 Atomic Safety and Licensing Board Panel*
U.S. Nuclear Regulatory Comnission Washington, D.C.
20555 Docketing and Service Section*
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Alan S. Rosenthal, Esq.,
Chairman*
Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Samuel J. Chilk
- Secretary of the Commission U.S. Nuclear Regulatory Comnission Washington, DC 20555 James M. Cutchin IV Counsel for NRC Staff