ML19259D340
| ML19259D340 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 10/01/1979 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ALAB-565, NUDOCS 7910180166 | |
| Download: ML19259D340 (11) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC EAFETY AND LICENSING APPEAL BOARD
- 1 phh
- 1 oe3%yY'3 Alan S.
Rosenthal, Chairman df "@S*.d#
D D'
Dr. John H.
Buck Michael C.
Farrar D
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3EWEa 00T 2 1979
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In the Matter of
)
)
HOUSTON LIGH".ING & POWER COMPANY
)
Docket No. 50-466
)
(Allens Creek Nuclear Generating
)
Station, Unit 1)
)
)
MEMORANDUM October 1, 1.979 (ALAB-565)
A few days ago, presented with an appeal filed by a peti-tioner for intervention, we became involved in this construc-tion permit proceeding once again.-1/
That appeal -- which we 2
dismissed as an impermissible interlocutory one- / -- involved the timing of the filing cf contentions by intervenors and
_/
Previously, we had issued a series of decisions involving, 1
inter alia, the scope of the public notices reactivating tais proceeding and their impact upon petitions for inter-vention.
See ALAB-535, 9 NRC (April 4, 1979); ALAB-539, 9 NRC (April 23, 1979); and ALAB-544, 9 NRC (May 3, 1979).
See also ALAB-547, 9 NRC (May 8, 1979)
_/
ALAB-564, 10 NRC (September 19, 1979).
2 I166 i29 791018o / 6 6 G
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. pe*.i.tioners for intervention. d!
In reviewing the record to put that appeal in context, we necessarily became aware of the extraordinarily large number of intervention peti-tions that have been filed.
We also became familiar with the manner in which the Licensing Board has handled matters thus far and with the procedures it has est blished for the future.
Although our concern may be unjustified, one aspect of the Board's planc appears sufficiently troubling that we feel compelled to comment upon it now.
Ordinarily, of course, we will not intercede, even when asked to do so by a party, at the prehearing stages of a proceeding, particularly where a matter related to, scheduling is involved. d/
But an unusual --
perhaps unique -- combination of circumstances is present here.
The matter which concerns us is central to charting the fu-ture course of the proceeding and affects whether all, or nearly all, of the large number of prospective intervenors
_/
For purposes of this opinion, there is no need for us to 3
distinguish between (1) those who have already been al-lowed to intervene and (2) those whose status is still that of petitioners for intervention.
For convenience, we will refer to both groups collectively (but somewhat inaccurately) simply as "intervenors."
jl /
- See, e.g., ALAB-564, supra, and cases there cited; see also Pennsylvania Dower & Light Co. (Susquehanna Units 1 and 2), ALAB-563, 10 NRC (September 19, 1979).
1165 130
. and their contentions are dealt with fairly. 5/
If handled incorrectly, the matter has the potential for extraordinary mischief, yet just a few "words to the wise" can insure that all problems are avoided.
In short, by speaking up now we are not signifying any change in our fundamental policy against interfering in matters that can almost invariably be left to the licensing board to handle (subject only to an appeal at the end of the case).
1.
The Licensing Board has scheduled a special pre-hearing conference to begin on October 15, 1979. b/
Among the principal matters to be taken up, it appears, are the large number of pending intervention petitions and proposed contentions.
In,that regard, the Board established Septem-ber 14th as the final date for the filing of contentions.
-~5/
See Public Service Co. of Indiana (Marble Hill Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977):
"Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the croceeding in a pervasive or unusual manner."
(footnote omitted, emphasis added).
_6 /
See 10 CFR 2.751a.
The complexity of the proceeding and the importance of the conference can be seen from the Board's having indicated it may last an entire week.
See its August 6th Scheduling Order and September 13th Sup-plemental Order.
With well over fifty intervention petitions pending, this is not surprising.
But it helps explain why we do not want any avoidable error to infect the conference.
S"t
. In setting that date, the Board cut back the time normally allotted by the rules.-7/
Its purpose in doing so seems to have been to allow time for the applicant and staff to take a position, in writing, on the acceptability of the inter-contentions in advance of the conference. 8 /
venors' Although such a procedure is not specifically sanctioned by the Rules of Practice,
! we have no essential difficulty with it.
To the contrary, particularly where a large number of intervenors are involved (many with a long list of con-tentions), it makes a good deal of sense to structure the proceeding so that all participants know, before they arrive at the conference, what position the proponents of the plant 1/
See ALAB-564, supra.
--8/
See August 6th Scheduling Order, p. 2.
At this point, we should make clear that when we refer in this opinion to the " acceptability" or " admissibility" of a conten-tion (or use similar language), we are dealing with whether the contention is appropriate for further con-sideration in the proceeding.
A ruling that a conten-tion is valid for this purpose does not, of course, imply that substantively it is meritorious.
For this reason, that the applicant and staff believe that a contention lacks merit does not of itself constitute grounds for dismissing it.
In this regard, see fn. 16, infra.
--9/
The Rules do allow boards generally to alter time peri-ods for good cause.
10 CFR 2. 711 (a).
I166 152 s,;
. are taking on the various contentions.1S/
2.
The difficulty we have with the Board's plans con-cerns its admonition that, except to the extent the Board asks them to respond to questions, the intervenors "will not be permitted to present oral argument in support of" the contentions they have advanced.
September 13th Supple-mental Order, p.
2.
To be sure, this ruling appears to have been made largely in response to a particular motion (see fn. 2 of the Board's order), and perhaps what we go on now to say is the result of our taking it out of context or attributing to it a scope beyond that intended.11/
Or it 10/
The Rules do, not seem to deal explicitly with the filing of objections to contentions.
Under the format laid down by the Rules, however, if contentions are not filed until 15 days before the conference, then the applicant and staff would likely not be able to state until the conference itself which contentions they thought to be inadmissible.
We recall that, when circumstances like that arose in the part, licensing boards sometimes felt compelled -- particularly if they thought the element of surprise was present -- to let prospective intervenors respond to the applicant's and staff's position in writ-ing sometime after the conclusion of the conference, 11/
At least to some extent, the movant was asking in his August 30th paper not only for oral argument on the ap-plicant's and staff's objections to contentions (which the Board denied and which is the subject of this opin-ion), but also for leave to adduce " additional support" for those contentions.
In this regard, nothing we say here is intended to apply to an intervenor's attempting, (FOOTNOTE CONTINUED ON NEXT PAGE)
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. may be that the Board simply wants all argument in support of contentions to be presented in writing following the conference (see fn. 10, supra).
But if in fact it intends to rule on the admissibility of contentions at the confer-ence (or shortly thereafter) without allowing the prospec-tive intervenors to present argument, we see serious prob-lems on the horizon.
The Board justified its ruling with this twofold observation:
"Our Rules of Practice do not provide for such oral argument, and the [intervenors] have had ample time within which to prepare their contentions."
We do not quarrel with either of those statements.
But the conclusion the Board appears,to have drawn from them -- that it need not afford the intervenors an opportunity to present argu-ment in support of their contentions -- does not follow.
To be sure, the Rules do not provide for oral argument 11_/
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) for example, to amend his contentions or to advance new bases for them which could have been submitted earlier.
Such substantive alterations of contentions, as distinguished from arguments in support of existing contentions, can be done only with leave of the Board; that is a matter within its discretion.
llbQ in support of contentions.12/
But this is not significant in itself.
For the Rules do not in any fashion deal ex-plicitly with the filing of either objections to contentions or motions to dismiss them.13/ Thus the absence of an expli-cit procedure for responding to such attempts to eliminate contentions from further consideration is not instructive as to what kind of an opportunity to be heard must be pro-vided the proponent of the contention.
It is, then, up to each presiding board to fashion a fair procedure for dealing with such objections to contentions as are filed.
Of course, the cardinal rule, so far as fairness is concerned, is that each side must be heard.
Grannis v. Ordean, 234 U.S.
- 385, 394 (1914); see also United States v. Steel Tank Barge H 1651, 272 F.
Supp. 658, 659 fn. 1 (E. D. La. 1967), citing Kelley, "Audi Alteram Partem", 9 Natural Law Forum 103 (1964).
We have no doubt that the views of the Board below coincide with ours on the importance of this principle; any 12/
Cf. 10 CFR 2.730 (d), indicating that it is well within the Board's discretion not to hold oral argument before disposing of written motions.
Of course, that same Rule gives the movant's opponent full opportunity before any ruling is made to file a written response to the mo-tion, "stuting the arguments and authorities relied on,"
in addition to other material.
See 92. 730 (c), (d).
'i
'e,
13/
See fn.'10)' supra.
Ii56 135 difference lies in its application.
Where our views may diverge is in our perception of whether a prospective inter-venor has been " heard" when he has filed his contentions.
We gather (from its observation that the intervenors will not be heard orally because they "have had ample time within which to prepare their contentions") that the Board may believe filing contentions constitutes a sufficient oppor-tunity to be heard on their admissibility.
We think not.
We believe that a contention, like a complaint in federal court, is intended to reflect what a party intends to prove on the merits but not an argument as to why his pleading should be entertained over his opponent's as yet unstated objections. Thus,,when a defendant moves to dismiss a com-plaint (see, e.g.,
Rule 12 (b),
F.R. Civ.
P.),
a plaintiff is -- and must be -- allowed the opportunity to respond to the motion.14/
In this respect, regardless of how it is denominated,15/ a suggestion by the applicant and staff that
~~14/
In other words, to use just one example, a complaint in federal court must contain a jurisdictional allegation.
But if the defendant argues that jurisdiction is lacking for some reason, the plaintiff is allowed to respond with arguments supporting his statement of jurisdiction.
15/
E.g.,
as a " response" or " answer" to the contention.
.. a particular contention is inadmissible (e.g.,
because it constitutes an attack upon Commission regulations) is akin to a motion to dismiss.
By the same token, we believe that at this stage a chal-lenge to a contention is not like an answer to a complaint.
An answer is not followed promptly by any ruling by the court, much less one on the validity or merits of the com-plaint.
Rather, an answer simply triggers the process which eventually culminates in resolving the merits (either by sum-mary disposition or following a trial).
Thus, no response to an answer is necessary; similarly, if the applicant and staff are content to allow a contention to be accepted for litiga-tion while denying its substance, no response is required and no ruling is necessary until the merits are later brought up.15/
A motion to dismiss, on the other hand, like a chal-lenge to a contention, is followed -- after the other side is heard -- by a ruling on whether the matter will proceed.
--16/
At this stage of a proceeding, the ultimate merits of the contentions advanced are not being debated.
See Duquesne Light Co. (Beaver Valley Unit 1), ALAB-109, 6 AEC 243, 244-45 (1973); Alabama Power Co. (Farley Units 1 and 2), ALAB-182, 7 AEC 210, 216-17 (1974).
Of course, if a contention is inherently lacking in merit or has some other facial deficiency, it can be dismissed now.
IIbb I$[
a r,
. Insofar as contentions are concerned, the intervenors must be heard in response because they cannot be required to have anticipated in the contentions themselves the possible argu-ments their opponents might raise as grounds for dismissing them.
In this respect too, contentions are like federal court complaints (see fn. 14, supra).
Compare 10 CFR 2. 714 (b) with Rule 8 (a),
F.R. Civ.
P.
The conclusion we reach is this.
Before any suggestion that a contention should not be entertained can be acted upon favorably, the proponent of the contention must be given some chance to be heard in response.17/
3.
Again, we may be unnecessarily concerned about this e
entire matter.
For it is quite possible that, on its own, the Board would have taken all the appropriate steps to as-sure that the intervenors will be fairly heard in response to any attempts to reject their contentions at the threshold.
Consequently, the Board below might justifiably believe that
-~17/
These views are somewhat tentative, for necessarily we reached them without benefit of briefing by the parties.
Accordingly, we are not directing the Board to take any particular action.
Moreover, if the parties wish to try to convince the Board -- and ultimately us -- that our views are mistaken or that we have overlooked something, they are not foreclosed from doing so.
l l b b I !)O
- 12 it did not need our assistance.
In the peculiar circum-stances of this case, however, the risk involved in our stepping in when not necessary is small compared to the adverse consequences that might have attended our not speaking out if it truly were required.
FOR THE APPEAL BOARD b.b4%A C.
Jeah Bishop
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Secretdry to the Appeal Board i 166 1.59
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