ML19269F020
| ML19269F020 | |
| Person / Time | |
|---|---|
| Issue date: | 03/31/1978 |
| From: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUREG-0386, NUREG-0386-S02, NUREG-386, NUREG-386-S2, NUDOCS 7911140458 | |
| Download: ML19269F020 (40) | |
Text
NUREG-0386, Supp. 2 to Digest No.1 UNITED STATES NUCLEAR REGULATORY COMMISSION STAFF PRACTICE AND PROCEDURE DIGEST Supplement 2 2188 267 Office of the Executive Legal Director g
U. S. Nuclear Regulatory Commission 7911140k N
O Available from National Technical Information Service Springfield, Virginia 22161 Price: Printed Copy $4.50 ; Microfiche $3.00 The price of this document for requesters outside of the North American Continent can be obtained from the National Technical Information Service.
2188 268 9
NUR EG-0386, Supp. 2 to Digest No.1 UNITED STATES NUCLEAR REGULATORY COMMISSION STAFF PRACTICE AND PROCEDURE DIGEST Supplemant 2 includes Commission, Appeal Board, and Licensing Board Decisions for April Through September 1977 2188 269 Manuscript Completed: February 1978 Date Published: March 1978 Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D. C. 20555
INDEX sui'PLEMENT 2 Pagg II.
PREHEARING MATTERS 3.
Issues for Hearing 3.1 General..............
1 8.
Intervention 8.3 Petitions to Intervene 8.3(4)
Time Limits and Late Petitions........
1 8.3(4)(a) General.....................
I 8.3(4)(d) Late Intervention and the Four Factore of 10 CFR S 2.714(a)..................
2 8.3(4)(e) Appeals from Rulings on Late Intervention...........
2 8.4 Interest and Standing 8.4(1)
Standing in General, Discretionary Intervention..........................
3 8.4(2)
Standing of Organizations.............
4 8.4(3)
Standing in Export Licensing Cases....
4 8.6 Appeals of Rulings on Intervention 8.6(1)
General...............................
4 10.
Discovery 10.2 Discovery Rules 10.2(5)
Privileged Matter.....................
4 III. HEARINGS
- 1., Licensing Boards ii fi b 1 h 1.1 G e n e ral R o l e...................................
5 2188 270
Pagg 1.2 Powers and Duties................................
5 1.4 Disqualification of a Licensing Board Member NEW 1.4(3)
Improperly Influencing a Licensing Board Decision.........................
5 NEW 1.5 Resignation of a Licensing Board Member..........
6 2.
Hearing Scheduling Matters 2.6 Consolidation of Hearings 2.6(1)
Genera 1................................
6
- 11. Witnesses 11.1 Compelling Appearance 11.1(1)
General................
6 12.
Cross Examination 12.1 By Intervenors...................................
7 15.
Interlocutory Review via Directed Certification...
7 16.
Licensing Board Findings 16.1 Genera 1..........................................
7 IV.
POST HEARING MATTERS 3.
Initial Decisior.
3.1 Genera 1..........................................
8 4.
Reopening Hearings 4.1 Genera 1..........................................
8 5.
Motions to Reconsider.................................
8 6.
pn S p o n t e R e v i ew.....................................
9 2188 271 O
o, esis
Page V.
APPEALS 1.
General 1.2 Who Can Appea1..................................
9 1.4 Time for Filing Appeals.........................
9 1.5 Matters Considered on Appeal 1.5(3)
Matters Considered on Appeal of Ruling Allowing Late Intervention.....
10 1.6 Appeal Board Action 1.6(1)
Role of Appeal Board..................
10 1.6(2)
Parties 0pportuntiy to be Heard on Appeal..............
11 1.6(3)
Standards for Reversing Licensing Board on Finding of Fact..............
11 NEW 1.6(6)
Immediate Effectiveness of Appeal Board Decision........................
12 2.
Stays Pending Appeal 2.1 Genera 1.........................................
12 2.2 Requirements for a Stay......
12 3.
Specific Appealable Matters 3.3 Summary Disposition - Order Denying.............
13 4.
Perfecting Appeals 4.2 General Reouirements for Appeals from Initial Decision........................................
13 5.
Briefs on Appeal 5.2 Time for Submittal 5.2(1)
Genera 1...............................
14 5.3 Contents of Brief 5.3(1)
Genera 1...............................
15 ag p,
,i L88 272 itt
P_ag 7.
Actions Similar to Appeals 7.1 Motions to Reconsider........................,...
16
- 7. 2 Interlocutory Reviews 7.2(1)
Genera 1................................
16 7.2(2)
Directed Certification.................
16 8.
Exceptions to Orders, Rulings, Initial Decisions, Partial Initial Decisions 8.1 Genera 1..........................................
17 NEW 8.5 Motions to Strike Exceptions.....................
17 9.
Certification to the Commission.......................
17 10.
Review of Appeal Board Decisions 10.1 Genera1..........................................
18 10.2 Stays Pending Jt+4icial Review....................
18 11.
Jurisdiction of NRC to Consider Matters While Judicial Review is Pending.....................................
18 12.
Procedure on Remand 12.3 Stays Pending Remand.............................
18 VI.
GENERAL MATTERS 1.
Amendments to Existing Licenses and/or Construction Permits 1.2 Hearing Requirements 1.2(1)
Genera 1................................
19 2.
Antitrust Considerations 2.1 General..........................................
19 2.2 Consideration of Antitrust Matters After the Construction Permit Stage........................
20 2188 273 M 88!S n
Page 3.
Attorney Conduct 3.1 Practice Before Licensing and Appeal Boards 3.1(2)
Professional Decorum...................
21 8.
NEPA Considerations 8.1 Genera 1..........................................
21 8.2 Environmental Statements 8.2(3)
Circumstances Requiring Redrafting of FES NEW 8.2(3)(c) Stays Pending Remand for Inadequate EIS...............
22 8.2(4)
Alternate Sites 8.2(4)(a) Obviously Superior Standard for Site Selection...........
22 8.2(4)(b) Standards for Conducting Cost / Benefit Analyses Related to Alternate Sites...........
22 8.3 Power of NRC Under NEPA 8.3(1)
Genera 1................................
23 8.3(m)
Transmission Line Routing..............
24 10.
Pre-Permit Activities 10.1 General 10.1(1)
Pre-LWA Activity.......................
24 11.
Regulations 11.3 Challenges to....................................
25 NEW 11.4 Effect of Agency's Interpretation of Its Own Regulations......................................
25 2.}00 7.74 V
INTRODUCTORY h0TE TO SUPPLEMENT 2 This is the second in a series of Supplements to the NRC Practice and Pro-cedure Digest.
This Supplement updates the Digest by including pertinent Commission, Appeal Board, and Licensing Board rulings for the period April 1, 1977 to September 30, 1977.
The Supplement also adds a number of new topics.
The Supplement is structured in the same manner as the Digest.
For the convenience of users, the text of the Supplement is preceded by an index which lists the Digest topic headings which are supplemented.
In using the main Digest, this index to Supplement 2 as well as the index to Supplement I should be consulted to assure that the Digest discussion has not been superseded or updated by information in the Supplements.
Supplement 2 is intended for use as a " pocket part".
It should be inserted after Supplement 1 which itself should be inserted after the last page of the main Digest.
Notice is hereby given that all disclaimers with respect to content, accuracy and completeness of information, express or implied warranties, and use of or reliance upon information presented, set forth in regard to the Digest itself are equally applicable to this Supplement.
2188 275
II.
PREHEARING MATTERS 3.
Issues for Hearing 3.1 General The judgment of a licensing board with regard to what is or is not in controversy in a proceeding being conducted by it is entitled to great respect, Northern States Power Company (Prairie Island Nuclear Generating Plant,. units 1 and 2), ALAB-419, 6 NRC 3, 6 (1977).
8.
Intervention 8.3 Petitions to Intervene 8.3(4)
Time Limits and Late Petitions 8.3(4)(a) General A satisfactory explanation for failure to file on time does not automatically warrant the acceptance of a late-filed petition to intervene.
The licensing board must nevertheless consider the four factors specified under 10 CFR S 2.714(a).
However, where the lateness has been satisfactorily explainea, a much smaller demonstration on these factors is necessary.
Florida Power &
Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8, 22 (1977).
To the same effect is Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), ALAB-431, 6 NRC 460 (1977), where the appeal board reiterated that the " good cause" determination as to late filing is to be made on the basis of a considera-tion of both (1) the substantiality of the justification offered for the late filing and (2) the four factors specifically enumerated in 10 CFR g 2.714(a), and that in circumstances where no good excuse is tendered for h
2188 276 sy gg p; 1
the tardiness, the petitioner's demon-stration on the other factors must be particularly strong.
At the same time, a licensing board has wide latitude with respect to petitions to intervene so that even though an acceptable excuse for failure to file on time is not forthcoming, the board has discre-tion to allow intervention if other considerations warrant its doing so.
Florida Power & Light Co., ALAB-420 supra.
8.3(4)(d) Late Intervention and the Four Factors of 10 CFR S ?.714(a)
In deciding whether petitioners' partic-ipation would broaden the issues or delay the proceeding [2.714(a)(4)), it is proper for the licensing board to consider that the petitioners agreed to allow issuance of the construction permit before their antitrust contentions were heard thereby eliminating any need to hold up plant construction pending resolution of those contentions.
Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8, 23 (1977).
8.3(4)(e) Appeals from Rulings on Late Intervention Two considerations play key roles in appeal board deliberations on appeals from rulings on untimely intervention.
The first is the Commission's admoni-tion in Nuclear Fuel Services, Inc.
(West V-lley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 275 (1975) that 10 CFR 9 2.714(a) was purposely drafted with the idea of "giving the Licensing Boards broad discretion in the circum-stances of individual cases." Con-sequently, an appeal board is free to reverse a decision granting a tardy interve.1 tion petition only where it can fairly be said that the licensing As dhl5" 2188 277 2
board's action was an abuse of the discretion conferred by section 2.714(a).
The second consideration flows from the
' principle that the propriety of the board's action must be measured against the backdrop of the record made by the parties before it.
Accordingly, on revies the appeal board must generally credit the facts recounted in the papers supporting the petition to intervene to the extent that they deal with the merits of the issues.
Insofar as the facts relate to the excuse for untimely filing, where they are not controverted by opposing affidavits they must be taken as true.
Florida Power & Light Co.
(St. Lucie Nuclear Power Plant, Unit 2),
ALAB-420, 6 NRC 8, 13 (1977).
8.4 Interest and Standing 8.4(1)
Standing in General, Discretionary Interve' tion Status as a ratepayer alone is not sufficient to establish standing under the Atomic Energy Act.
Kansas Gas & Electric Co. et al. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 128 (1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1420-21 (1977).
Similarly, a person's interest as a taxpayer does not fall within the zone of interests sought to be protected by either the Atomic Energy Act or the National Environmental Policy Act (NEPA).
Tennessee Valley Authority, ALAB-413 supra at 5 NRC 1421.
Moreover, as to monetary loss and the National Environmental Policy Act, economic injury gives standing under NEPA only if it is environmentally related.
Id.
In Tennessee Valley Authority, ALAB-413 supra, the appeal board reiterated that the foremost consideration as to whether discretionary inter-vention should be permitted is whether the potential intervenor would make a valuable con-tribution on a significant safety or environ-mental issue appropriately addressed in the pro-ceeding in question.
r.
+
2188 278 3
8.4(2)
Standing of Organizations A party may intervene as of right only when he asserts his own interests under either the Atomic Energy Act or NEPA, and not when he asserts interests of third persons.
Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 (1977).
8.4(3)
Standing in Export Licensing Cases The contention that a major federal action would have a significant environmental impact on a foreign nation is not cognizable under NEPA, and cannot support intervention.
Babcox & Wilcox (Application for Consideration of Facility Export License), CLI-77-18, 5 NRC 1332, 1348 (1977).
8.6 Appeals of Rulings on Intervention 8.6(1)
General For a recent case affirming the well-established rule that a petitioner may not appeal an order admitting petitioner but denying certain conten-tions, see Power Authority of the State of New York (Greene County Nuclear Plant), ALAB-434, 6 NRC 471 (1977).
10.
Discovery 10.2 Discovery Rules 10.2(5)
Privileged Matter Security plans are not " classified", and are discoverable in accordance with the provisions of S 2.790(d).
However, they are sensitive documents and are not to be made available to the public at large.
Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410, 5 NRC 1398, 1402 (1977).
In order to discover such plans, (1) the moving party must demonstrate that the plan or a portion of it is relevant to the party's contentions; (2) the release of the plant security plan must usually be subject to a protective order; and (3) no o\\', 8h{S 4
witness may review the plan until he is first qualified as an expert with sufficient competence to evaluate it. M.
Only those portions of a security plan both relevant and necessary for the litigation of a party's contention are subject to discovery.
M. at 1405.
III. HEARINGS 1.
Licensing Boards 1.1 General Role Normally, the Licensing Board is charged with compiling a factual record in a proceeding, analyzing the record, and making a determination based on the record.
The Commission will assume these functions of the Licensing Board only in extraordinary circumstances.
Washington Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5),
CLI-77-II, 5 NRC 719, 722 (1977).
1.2 Powers and Duties Licensing boards do not have jurisdiction to order a hearing on antitrust matters in the absence of a pending construction permit or operating license proceeding.
Flordia Power & Light Co. (St. Lucie Plant, Units 1 and
1.4 Disqualification of a Licensing Board Member 1.4(3)
Improperly Influencing a Licensing Board Decision Where a licensing board has been subjected to an attempt to improperly influence the content or timing of its decision, the board is duty-bound to call attention to that fact promptly on its own initiative.
On the other hand, a licensing board which has not been subjected to attempts at improper influence need not investigate allegations that such attempts were contemplated or promised.
Public Service Co. of New Hampshire et al. (Seaarook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 102 (1977).
2188 280 is 88!S 5
1.5 Resignation of a Licensing Board Member The Administrative Procedure Act requirement that the official who presides at the reception of evidence must make the recommended or initial decision (5 U.S.C. 554(d))
includes an exception for the circumstance in which that official becomes " unavailable to the agency." When a licensing board member resigns from the Commission, he becomes " unavailable" (10 CFR S 2.704(d)).
Public Service Company of Neu Hsmpshire et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 101 (1977).
Resignation of a Board member during a proceeding is not, of itself, grounds for declaring a mistrial and starting the proceedings anew. p.
2.
Hearing Scheduling Matters 2.6 Consolidation of Hearings 2.6(1)
General The Commission may in its own discretion order the consolidation of two or more export licensing proceedings, and may utilize 10 CFR S 2.716 as guidance for deciding whether or not to take such action.
Edlow International Co.
(Agent for the Government of India on Application to Export Special Nuclear Materials), CLI-77-16, 5 NRC 1327, 1328-29 (1977).
Note, however, that persons who are not parties to either of two adjudicatory proceedings have no standing to have those proceedings consolidated under section 2.716.
Id. at 1328.
- 11. Witnesses 11.1 Compelling Appearance 11.l(1)
General The Rules of Practice preclude a Licensing Board from declining to issue a subpoena on any basis other than that the testimony sought lacks
" general relevance".
The Board is specifically prohibited at that stage from attempting "to determine the admissibility of evidence."
10 CFR S 2.720(a); Public Service Company of New Ham] shire et al. (Seabrook Station, Units 1 & 2),
p O ALA3-422, 6 NRC 33, 93 (1977).
, n,,
mv, 2188 281 6
12.
Cross Examination 12.1 By Intervenors Permissible inquiry through cross examination at a reopened hearing necessarily extends to every matter within the reach c,f the testimony 3,ubmitted by the applicants and accepted by the board.
Public Service Company of New Hampshire et al. (Seabrook Station, Units 1 and 2),
ALAB-422, 6 NRC 33, 94 (1977).
15.
Interlocutcry Review via Directed Certification Developments occurring subsequent to the filing of a motion for directed certification to the appeal board may strip the question raised in the motion for certification of an essential ingredient and therefore constitute grounds for denial of the motion.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977).
16.
Licensing Board Findings 16.1 General The Appeal Board's admonition that licensing boards must clearly set forth the basis for their decisions applies to a board's determination with respect to alternatives under NEPA.
Thus, although a licensing board may utilize its expertise in selecting between alternatives, some explana-tion is necessary.
Otherwise, the requirement of the Administrative Procedure Act that conclusions be founded upon substantial evidence and based on reasoned findings "become[s] lost in the haze of so-called expertise."
Public Service Co. of New Hampshire et al. (<adrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 66 (1977).
Notwithstanding its authority to do so, the appeal board will normally be reluctant to search the record to deter-mine whether it included sufficient information to support conclusions for which the licensing board failed to provide adequate justification.
A remand, very possibly accom-panied by an outright vacation of the result reached below, would be the usual course where the licensing board's decision does not adequately support the conclusions reached therein. M. at 6 NRC 42.
2188 282
%is v
7
Note that as to a licensing board's findings, the appeal board has authority to make factual findings on the basis of record evidence which are different from those reached by a licensing board and can issue supplementary findings of its own.
Public Service Co. of New Hampshire et al.
supra at 6 NRC 42.
The appeal board decision can be based on grounds completely foreign to those relied upon by the licensing board so long as the parties had a sufficient opportunity to address those new grounds with argument and, where appropriate, evidence.
M.
IV.
POST HEARING MATTERS 3.
Initial Decision 3.1 General Decisions of licensing boards which are imcediately effec-tive are presumptively valid.
Unle:;s an until stayed or overturned by appropriate authority, the; are entitled to full recognition.
Public Service Company of New Hampshire et al. (Seabrook Station, Units 1 & 2), ALAB-423, 6 NRC 115, 117 (1977).
4.
Reopening Hearings 4.1 General An appeal board might be sympathetic to a motion to reopen a hearing if documents appended to an appellate brief con-stituted newly discovered evidence and tended to show that significant testimony in the record was false.
Toledo Edison Co. and Cleveland Illuminating Co., (Davis-Besse Nuclear Power Station, Units 1, 2 and 3; Perry Nuclear Power Plant, Units 1 and 2), ALAB-430, 6 NRC 457 (1977).
Permissible inquiry through cross examination at a reopened hearing necessarily extends to every matter within the reach of the testimony submitted by the applicants and accepted by the board.
Public Service Company of New Hampshire et al.
(Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 94 (1977).
5.
Motions to Reconsider The appeai board has indicated that a motion to it to reconsider a prior decision will be denied where the appeal board is left
' M\\ 38 f,
2188 283 3
8
with the conviction that what confronts it is not in reality an elaboration upon, or refinement of, arguments previously advanced, but instead is an entirely new thesis.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 28),
ALAB-418, 6 NRC 1, 2 (1977).
6.
Sua Sponte Review Upon review sua sponte of a licensing board's initial decision authorizing facility operation, the appeal board will consider operational problems coming to light as a result of facility operations during the period of review only where the problems are extraordinary and have a bearing on whether an operating license should have been issued.
Duquesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 (1977).
V.
APPEALS 1.
General 1.2 Who Can Appeal An appeal (other than from the denial of intervention) may be taken only by a party to the proceeding.
10 CFR 2.762(a);
Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-433, 6 NRC 469 (1977).
1.4 Time for Filing Appeals A protracted withholding of action on a request for relief may be treated as tantamount to a denial of the request and final agency action.
Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-417, 5 NRC 1442 (1977); Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426, 428 (1977).
At least in those instances where the delay involves a licenisng board's failure to act on a petition to intervene, such a " denial" of the petition is 2npealable.
Detroit Edison Co. supra.
The time limits imposed in 10 CFR S 2.762(a) for filing appeal briefs refer to the date upon which the exceptions were actually filed and not to when they were originally due for filing prior to a time extension.
Kansas Gas &
Electric Co. et al. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 125 (1977).
88tS 2188 284 9
As to review of appeal board rulings, 10 CFR S 2.786(b)(1) provides that a party may file a petition for review of an appeal board decision within 15 days after service of that decision.
Consolidated Edison Co. of N.Y., Inc. (Indian Point Station, No. 2), ALAB-414, 5 NRC 1425, 1427 (1977).
1.5 Matters Considered on Appeal 1.5(3)
Matters Considered on Appeal of Ruling Allowing Late Intervention A licensing board's decision to allow late inter-vention may be reversed only if that board abused its discretion.
The appeal board will look to the papers filed in the case and the uncontroverted facts set forth therein to determine if the licensing board abused its discretion.
Florida Power & Light Co.
(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8 (1977).
1.6 Appeal Board Action 1.6(1)
Role of Appeal Board The appeal board, as part of its customary sua sponte review of an initial decision in the absence of an appeal, may examine independently and with care the totality of the evidence if the matter at hand is of an unusual character.
Southern California Edison Company & San Diego Gas & Electric Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-432, 6 NRC 465 (1977).
An appeal board has authority to make factual findings on the basis of record evidence which are different from those reached by a licensing board and can issue supplementary findings of its own.
Public Service Company of New Hampshire, et al.
(Seabrock Station, Units 1 and 2), ALAB-422, 6 NRC 33, 42 (1977).
The appeal board decision can be based on grounds completely foreign to those relied upon by the licensing board so long as the parties had a sufficient opportunity to address those new grounds with argument and, where appropriate, evidence.
I_d.
4 88IE 2188 285 10
Notwithstanding its authority to do so, the appeal board will normally be reluctant to search the record to determine whether it included sufficient information to support conclusions for which the licensing board failed to provide adequate justification.
A remand, very possibly accompanied by an outright vacation of the result reached below, would be the usual course where the licensing board's decision does not adequately support the conclusions reached therein.
Public Service Co. of New Hampshire, ALAB-422 supra.
1.6(2)
Parties' Opportunity to be Heard on Appeal Requests for emergency relief which require adjudicatory boards to act without giving the parties who will be adversely affected a chance to be heard ought to be reserved for palpably meritorious cases and f' led only for the most serious reasons.
The appeal board will grant emergency relief without affording the adverse parties at least some opportunity to be heard in opposition only in the most extraordinary circumstances.
Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 780 at n.27 (1977).
1.6(3)
Standards for Reversing Licensing Bovd on Finding of Fact Notwithstanding its authority to do so, the appeal board will normally be reluctant te search the record to determine whether it included suf-ficient information to support conclusions for which the licensing board failed to provide adequate justification.
A remand, very possibly accompanied by an outright vacation of the result reached below, would be the usual course where the licensing board's decision does not adequately support the conclusions reached therein.
Public Service Co. of New Hampshire et al.
(Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977).
2188 286 per-Jde a 11
1.6(6)
Immediate Effectiveness of Appeal Board Decision Decisions of appeal boards which are immediately effective are presumptively valid.
Unless and until such a decision is stayed or overturned by the appropriate authority, it is entitled to full recognition.
Public Service Co. of New Hampshire et al. (Seabrook Station, Units 1 & 2),
ALAB-423, 6 NRC 115, 117 (1977).
2.
Stays Pending A.ppeal 2.1 General Under 10 CFR S 2.788(a), a party may move for a stay of an appeal board decision pending Commission review if such motion is filed within seven days after service of the decision for which a stay is sought.
Consolidated Edison Co. of N.Y., Inc. (Indian Point Station, No. 2), ALAB-414, 5 NRC 1425, 1427 (1977).
The date of service for purposes of computing the time for filing a stay motion under section 2.788 is the date on which the Docketing and Service Branch of the Office of the Secretary of the Com-mission serves the order or decision.
Id. at 5 NRC 1427-28.
One seeking a stay bears the burden of marshalling the evidence and making the arguments which demonstrate his entitlement to it.
While not mandatory under Commission rules, one should seek a stay in the first instance from the licensing board before turning to the appeal board.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-395 5 NRC 772, 785 (1977).
The appeal board in Midland clearly indicated that a party's failure, without good cause, to seek a stay from the licensing board in the first instance, may form a basis, in part, for the appeal board's denial of a stay.
2.2 Requirements for a Stay As with normal motions for stays pending appeal, requests for emergency stays pending final disposition of a stay motion must meet the requirements of the Virginia Petroleum Jotbers test (now incorporated into the regulations at 10 CFR S 2.788(e)).
Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-404, 5 NRC 1185, 1186-89 (1977).
In any event, where there is no showing irreparable injury absent a stay and the other factors
}Q' 08$
2188 287 12
O do not favor the movant, an overwhelming showing of likelihood of success on the merits is required to obtain a stay.
Id.
at 1189.
See also Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit hJ. 2), ALAB-415, 5 NRC 1435, 1437 (1977) which interprets the ie.luirements of 10 CFR S 2.788(e) to substantially the same effer.t.
Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury for purposes of the Virginia Petroleum Jobbers test.
Consumers Power Co.
(Midland Plant, Units 1 & 2), ALAB-395, 5 NPC 772, 779 (1977).
For a recent case holding that the criteria for granting a stay pending remand are less stringent than those set forth in Virigina Petroleum Jobbers (for a stay pending appeal under NRC practict:), see Consumers Power Co., ALAB-395 supra.
3.
Specific Appealable Matters 3.3 Summary Disposition - Order Denying A deferral of action on, or denial of, a motion for summary disposition does not fall within the bounds of the 10 CFR S 2.714a exception to the prohibition on interlocutory appeals, and may not be appealed.
Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No.1), ALAB-400, 5 NRC 1175 (1977).
4.
Perfecting Appeals 4.2 General Requirements for Appeals from Initial Decision Exceptions to an initial decision must be separately numbered and each exception must state concisely and without augmentation the single error of fact or law asserted in that exception.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 28), ALAB-409, 5 NRC 1391, 1393-95 (1977).
2188 288 o
861S 13
5.
Briefs on Appeal 5.2 Time for Submittal 5.2(1)
General The time limits imposed in 10 CFR 6 2.762(a) for filing briefs refer to the date upon which the exceptions were actually filed and not to when they were originally due for filing prior to a time extension.
Kansas Gas & Electric Co. et al.
(Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 125 (1977).
It is not necessary for a party to bring to the appeal board's attention the fact that its adversary has not met prescribed time limits.
Nor as a general rule will any useful purpose be served by filing a motion seeking to have an appeal dismissed because the appellant's brief was a few days late; the mailing of a brief on a Sunday or Monday which was due for filing the prior Friday does not constitute substantial noncompliance within the meaning of 10 CFR 2.764(e), which would warrant dismissal, absent unique circum-stances. Id.
In the event of some late arising unforeseen development, a party may tender a document belatedly.
As a rule, such a filing must be accompanied by a motion for leave to file out-of-time which satisfactorily explains not only the reason for the lateness, but also why a motion for a time extension could not have been season-ably submitted, irrespective of the extent of the lateness.
Kansas Gas and Electric Co., ALAB-424 supra.
Apparently, however, the written explana-tion for the tardiness may be waived by the appeal board if, at a later date, the board and parties are provided with an explanation which the board finds to be satisfactory.
Id. at 126.
i o,
,d b 2188 289 9
14
5.3 Contents of Brief 5.3(1)
General Documents appended to an appellate brief will be stricken where they constitute an unauthorized attempt to supplement the record.
However, if the documents were newly discovered evidence and tended to show that significant testimony in the record was false, the appeal board might be sympathetic to a motion to reopen the hearing.
Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear Pcwer Station, Units 1, 2 & 3; Perry Nuclear Power Plant, Units 1 & 2), ALAB-430, 6 NRC 451 (1977).
A letter incorporating by reference a brief and proposed findings and conclusions filed with the licensing board does not satisfy the requirements for a brief on exceptions.
Public Service Electric and Gas Company et al. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769 (1977).
All references to the record should appear in the appellate brief itself; it is inappropriate to in-corporate into the brief by reference a document purporting to furnish the requisite citations.
Kansas Gas & Electric Company et al.
(Wolf Creek Generating Plant, Unit 1), ALAB-424, 6 NRC 122, 127 (1977).
The statement of facts set forth in the brief on appeal should include an exposition of that portion of the procedural history of the case related to the issue or issues presented by the appeal.
Public Service Electric and Gas Company et al.
(Hope Creek Generating Station, Units 1 and 2),
ALAB-394, 5 NRC 769, 771 at n.2 (1977).
An appendix to a reply brief containing a lengthy legal argument will be struck when the appendix is simply an attempt to exceed the page limitations set by the appeal board.
Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3; Perry Nuclear Power Plant, Units 1 and 2), ALAB-430, 6 NRC 457 (1977).
2188 290 li e 8 K.
g 15
7.
Actions Similar to Appeals 7.1 Motions to Reconsider The appeal board has indicated that a motion to it to reconsider a prior decision will be denied where the appeal board is left with the conviction that what confronts it is not in reality an elaboration upon, or refinement of, arguments previously advanced, but, instead, is an entirely new thesis.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 28), ALAB-418, 6 NRC 1, 2 (1977).
7.2 Interlocutory Reviews 7.2(1)
General Interlocutory appeals from licensing board rulings made during the course of a proceeding (other than from the denial of intervention) are forbid-den.
10 CFR S 2.730(f); Duke Power Company (Perkins Nuclear Station, Units 1, 2, und 3), ALAB-433, 6 NRC 469 (1977).
In this vein, the denial of a motion to dismiss a proceeding is interlocutory in character and cannot be immediately appealed.
Id-7.2(2)
Directed Certification Discretionary interlocutory review will be granted by the appeal board only when the ruling below either (1) threatened the party adversely affected by it with immediate and serious irrepa-rable impact which, as a practical matter, could not be alleviated by a later appeal, or (2) affected the basic structure of the proceeding in a per-vasive or unusual matter.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
Developments occurring subsequent to the filing of a motion for directed certification to the appeal board may strip the question brought of an essen-tial ingredient and, therefore, constitute grounds for the de.;ial of the motion.
Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-419, 6 NRC 3, 6 (1977).
w 88 6 2188 291 g
16
In Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-393, 5 NRC 767, 768 (1977), the appeal board reiterated that certification will not be granted to allow consideration of interlocutory evidentiary rulings, stating that, "[i]t is simply not our role to monitor these matters on a day-to-day basis; were we to do so, 'we would have little time for anything else.'"
(citations omitted) 8.
Exceptions to Orders, Rulings, Initial Decisions, Partial Initial Decisions 8.1 General Exceptions to an initial decisien must be separately numbered and each exception must :; tate concisely and without supporting augmentation the single error of fact or law asserted in that exception.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 2B),
ALAB-409, 5 NRC 1391, 1393-95 (1977).
8.5 Motions to Strike Exceptions A party may file a motion to strike an exception or brief which is not in substantial compliance with the provisions af S 2.762.
Kansas Gas and Electric Co. et al. (Wolf C.sek Generating Station, Unit 1), ALAB-424, 6 NRC 122 (1977); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 28), ALAB-409, 5 NRC 1391, 1396-1397 (1977).
Such a motion is also appropriate to exclude improper or scandalous exceptions.
Tennessee Valley Authority, ALAB-409 supra.
A motion to strike an exception is not appropriate, however, where an assessment of its validity requires more than minimal scrutiny of the underiying record. M.
9.
Certification to the Commission The a peal board should exercise its authority to certify questions to the Commission sparingly.
Absent a compelling reason, the appeal board will decline certification.
Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), Public Service Company of New Hampshire et al.
(Seabrook Station, Units 1 and 2), ALAB-421, 6 NRC 25, 27 (1977).
2188 292 G
88lS 17
10.
Rc. view of Appeal Board Decision 10.1 General 10 CFR 6 2.786(b)(1) provides that a party may file a petition for review of an appeal board decision within 15 days after service of that decision.
Consolidated Edison Co. of N.Y. (Indian Point Station, No. 2),
ALAB-414, 5 NRC 1425, 1427 (1977).
10.2 Stays Pending Judicial Review Section 10(d) of th' Administrative Procedure Act (5 U.S.C.
705) pertains to an agency's right to stay its own action pending judicial review of that action.
It confers no freedom on an agency to postpone taking some action when the impetus for the action comes from a court directive.
Consumers Power Company (Midland Plant, Units 1 & 2),
ALAB-395, 5 NRC 772, 783 (1977).
11.
Jurisdiction of NRC to Consider Matters While Judicial Review is Pending While the appeal board considers it inappropriate to consider matters bearing directly on questions pending before a court where it has not been directed to do so by the court (see Public Service Co. of New Hampshire et al. (Seabrook Station, Units 1
& 2), ALAB-350, 4 NRC 365 (1976)), NRC must act promptly and constructively in effectuating the decisions of the courts.
Upon issuance of the mandate, the court's decision becomes fully effective on the Commission, and it must proceed to implement it.
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 784 (1977).
Neither the filing nor the granting of a petition for Supreme Court certiorai operates as a stay, either with respect to the execution of the judgment below or of the mandate below by the lower courts.
I_d. at 781.
12.
Procedure on Remand 12.3 Stays Pending Remand Where judicial review discloses inadequacies in an agency's environmental impact statement prepared in good faith, a stay of the underlying activity pending remand does not follow automatically.
Whether the project need be stayed essentially must be decided on the basis of (1) traditional
' i'
- d[S 2188 293 18
balancing of equities, and (2) consideration of any likely prejudice to further decisions that might be called for by the remand.
Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 784-85 (1977).
VI.
GENERAL MATTERS 1.
Amendments to Existing Licenses and/or Construction Permits 1.2 Hearing Requirements 1.2(1)
General A hearing can be requested on the application for a license amendment to reflect a change in ownership of the facility.
Public Service Company of New Hampshire et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 80 (1977).
2.
Antitrust Considerations 2.1 General Under section 105c of the Atomic Energy Act of 1954, O
a hearing on whether authorizing construction of a nuclear power facility "would create or maintain a situation inconsistent with the antitrust laws" is called for if the Attorney General so recommends or an interested party requests one and files a timely petition to intervene.
When an antitrust hearing is convened, a permit to construct the project may not be awarded without the parties' consent until the proceedings are completed.
Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit No. 2),
ALAB-420, 6 NRC 8, 10 (1977).
The standard to be employed by the NRC is whether there is a " reasonable probability" that a situation inconsistent with the antitrust laws and the policies underlying those laws would be created or maintained by the unconditioned licensing of the facility.
Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), LBP-77-24, 5 NRC 804 (1977).
The Commission's statutory obligation, pursuant to section 105(c), is not limited to investigation of the effects of construction and operation of the facility ito be(licensed, but rather includes an evaluation of th~
relationship of the specific nuclear facility to the appli-cant's total system or power pool.
Id.
2188 294 19
Note that reactors licensed as research and development facilities under section 104(b) of the Atomic Energy Act prior to the 1970 antitrust amendments are excluded from antitrust review.
Florida Power & Light Co. (St. Lucie Plant, Unit 1; Turkey Point Plant, Units 3 & 4), ALAB-428, 6 NRC 221, 225 (1977); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-3", 3 hRC 331 (1976).
2.2 Consideration of Antitrust Matters After the Construction Permit Stage The NRC antitrust responsibility does not extend over the full life of a licensed reactor but is limited to two procedural stages - the construction permit stage and the operating license stage.
This limitation on NRC juris-diction extends to the Director of Nuclear Reactor Regulation as well as to the rest of the NRC.
Florida Power & Light Co.
(St. Lucie Plant, Unit 1; Turkey Point Plant, Units 3 & 4),
ALAB-428, 6 NRC 221, 226-27 (1977).
For reactors which have undergone antitrust review in connection with a construction permit application pursuant to section 105(c) of the Atomic Energy Act, paragraph (c)(2) of that section governs the question of antitrust review at the operating license stage.
Antitrust issues may only be pursued at this stage if a finding is made that the licensee's activities have significantly changed subsequent to the construction permit review.
Houston Lighting & Power Co. et al. (South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 1303, 1310 (1977).
Congress did not invest the NRC with ongoing antitrust responsibility during the period subsequent to issuance of an operating license and the NRC's authoritv in this area terminates at that point. M at 1317.
The NRC may facilitate operating license stage antitrust review by waiving the requirements of 10 CFR Sa 50.30(d) and 50.34(b) (which require operating license applications to be accompanied by the filing of an FSAR).
This permits operating license antitrust review at a much earlier stage prior to completion of the FSAR.
Houston Lighting & Power, CLI-77-13 supra at 1319.
2188 295 p >. 88tc 20
3.
Attorney Conduct 3.1 Practice Before Licensing and Appeal Boards 3.l(2)
Professional Decorum Licensing Boards have a duty to regulate the course of hearings and the conduct of participants in the interest of insuring a fair, impartial, expeditious and orderly adjudicatory process.
10 CFR 9 2.718(e); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-417, 5 NRC 1442, 1445-46 (1977).
8.
NEPA Considerations 8.1 General NEPA does not establish minimal environmental standards; the environmental review mandated entails a balancing of costs and benefits rather than a measuring against absolute environmental standards.
Public Service Company of New Hampshire et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 43 (1977).
Pursuant to NEPA, ti a NRC must make a finding as to the need for the facility or need for power in determining whether construction of the facility should be authorized.
"Need for power" is a shorthand expression for the " benefit" side of the cost-benefit balance NEPA mandates.
A nuclear plant's principal " benefit" is the electric power it generates.
Hence, absent some "need for power," justification for building a facility is problematical.'
M. at 90.
In weighing the costs and benefits of a facility, adjudicatory boards must consider the time and resources that have already been invested if the facility has been partially completed.
Money and time already spent are irrelevant only where the NEPA comparison is between (1) completing the proposed facility, and (2) abandoning that facility and not substituting another facility for it.
Vermont Yankee Nuclear Power Corp.
(Vermont-Yankee Nuclear Power Station), ALAB-392, 5 NRC 759 (1977).
The NEPA evaluation of alternatives is subject to a " rule of reason" and application of that rule "may well justify exclusion or but limited treatment" of a suggested alter-native.
Seabrook, ALAB-422 supra at 6 NRC 100.
1E Ou p' ' "fr 1
2188 296 21
8.2 Environmental Statements 8.2(3)
Circumstances Requiring Redrafting of FES 8.2(3)(c) Stays Pending Remand for Inadequate EIS Where judicial review discloses inadequacies in an agency's environmental impact statement prepared in good faith, a stay of the underlying activity pending remand does not follow automatically.
Whether the project need be stayed essentially must be decided on the basis of (1) a traditional balancing of the equities, and (2) a consideration of any likely prejudice to further decisions that might be called for by the remand.
Consumers Power Co. (Midland Plant, Units 1
& 2), ALAB-395, 5 NRC 772, 784-85 (1977).
8.2(4)
Alternate Sites 8.2(4)(a) Obviously Superior Standard for Site Selection For a further discussion of the "obviously superior" standard with regard to alternatives, see Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2),
ALAB-422, 6 NRC 33, 67, 78 (1977).
8.2(4)(b) Standards for Conducting Cost / Benefit Analysis Related to Alternate Sites Th? NEPA evaluation of alterr.stives is subject to a " rule of reason," and alplication of that rule "may well justify exclusion or but limited treatment" of a suggested alternative.
Public Service Co. of New Hampshire et al. (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 100 (1977) (citing CLI-77-8, 5 NRC 503, 540 (1977)).
Although a licensing board may utilize its expertise in selecting between alternatives, some explanation is necessary.
Otherwise the requirement of the Administrative Procedure Act that conclusions be founded upon substantial
(
Q ';} \\ "
22
evidence and based on reasoned findings "become(s) lost in the haze of so-called expertise." Seabrook, ALAB-422 supra at 66.
8.3 Power of NRC Under NEPA 8.3(1)
General In Consolidated Edison Co. of N.Y., Inc. (Indian Point Station, Unit No. 2), ALAB-399, 5 NRC 1156 (1977), the appeal board dealt with the question as to the degree to which NEPA allows the NRC to preempt state and local regulation with respect to nuclear facilities.
Therein, the appeal board held that the Federal doctrine of preemp-tion invalidates local zoning decisions that substantially obstruct or delay the effectuation of an NRC license condition imposed by the Commission pursuant to NEPA.
Id. at 1169-70.
The appeal board stated:
... NEPA gave this Commission both the power and the duty to interpret and administer the Atomic Energy Act and its own regulations in accordance with the policies of NEPA.
Among the policies of NEPA are to ' fulfill the responsibilities of each generation as trustee of the environment for succeeding generations,' to ' attain the widest range of beneficial uses of the environment without degradation.
.,' and to ' enhance the quality of renewable resources...'..
State or local regulation is preempted where it
' produces a result inconsistent with the objective of the Federal statute,' where it
' frustrates the full effectiveness of Federal law,' or where it ' stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'...
(footnotes omitted).
5 NRC 1169.
However, the appeal board also indicated that, where a question is presented as to whether state or local regulations relating to alteration of a bbfjuclearpowerplantispreemptedunderNEPA,
' 'J 2188 298 g
23
the NRC should refrain from ruling on that question until regulatory action has been taken by the state or local agency involved.
Id. at 1170.
8.3(2)
Transmission Line Routing The Commission has legal authority to review the offsite environmental impacts of transmission lines and to order changes in transmission routes selected by an applicant.
Public Service Company of New Hampshire et al. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 33 (1977).
10.
Pre-Permit Activities 10.1 General 10.1(1)
Pre-LWA Activity Permission to commence activities preparatory to construction in advance of an LWA can be sought by three different methods.
One method is to seek a determination by the Licensing Board that the proposed activities are not barred by 10 CFR S 50.10(c) because their impacts are de minimis (the so-called " travel impact" standard) or minor and fully redressable.
This is the preferred method when the issues involved are essentially factual.
The second method is to proceed in accordance with 10 CFR S 2.758(b) under which a waiver or exemption may be obtained from the Commission if the Board certifies the issue presented in accordance with 10 CFR g 2758(d).
This method should be used when an interpretation or application of a regulation to particular facts is called into question.
The third method is to seek an exemption from the Commission under 10 CFR S 50.12.
The Commission has stated that this method is extraordinary and emphasized that it should be used sparingly.
Washington Public Power Supply Station (WPPSS Nuclear Project Nos. 3 and 5), CLI-77-ll, 5 NRC 719, 723 (1977).
2188 299 e. obis O
24
11.
Regulations 11.3 Challenges to The principle that Commission regulations may not be challenged in adjudicatory p.oceedings was recently reiterated in Pacific Gas & Elect
.u Co. (Diablo Canyon Nuclear Power Plant, Units 1
& 2), ALAB-410, 5 NRC 1398, 1402 (1977).
11.4 Effect of Agency's Interpretation of its Own Regulations Where NRC interprets its own regulations and where those regula-tions have long been construed in a given way, the doctrine of stare decisis will govern absent compelling reasons for a different interpretation; the regulations may be modified, if appropriate, through rulemaking procedures.
New England Power Company (NEP Units 1 and 2), Public Service Co. of New Hampshire et al.
(Seabrook Station, Units 1 & 2), ALAB-390, 5 NRC 733, 741-42 (1977).
i 2188 000 25
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