ML19270F216
| ML19270F216 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 01/11/1979 |
| From: | Sohinki S, Woodhead C NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7902050044 | |
| Download: ML19270F216 (9) | |
Text
.
NRC PUELIC DCCOENT RCCM UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tOilSSION 6EFORE THE ATOMIC SAFETY ATID LICENSING BOARD In the Matter of
?
Eff
",y; 15 gg73 $,0 HOUSTON LIGHTING & POWER COMPANY
)
Docket No. 50-466 lj i
)
4
- /
(Allens Creek Nuclear Generating
)
Q ' -l w' T.C' Station, Unit 1)
)
A ?'u_
NRC STAFF RESPONSE TO TEX PIRG MOTION FOR CERTIFICATION The NRC Staff opposes the motion for certification 1 of three questions filed by TEX PIRG. U The Staff believes there is nothing in the facts or law in this instance to support certification of this matter.
Tex PIRG states that the Appeal Board should decide whether or not the Licensing Board properly limited the scope of contentions to those based on new evidence or design changes arising since the original notice of hearing in 1973.
Tex PIRG states that certification of questions on the scope of contentions will prevent future delay which 1
Since decision has been made on this matter, the proper term should be " referral" [(10 CFR 52.730(f))] as distinguished from " certification"
[10 CFR 52.718(i)] Consumers Power Co. (Midland Plant, Units 1 & 2)
ALAB-152, 6 AEC 816, 818 fn. 6, (1973) but teminology is not controlling or limiting accordino to the more recent decision in Public Service Co.
of New Hamoshire, (Seabrook Station, Units 1 & 2) 1 Nhc 478, 482 (1975).
- Although the Staff opposes the Motion on its merits, there is a serious threshold question as to whether Tex PIRG even has standing to seek appellate review of any ruling by this Board.
The Licensino Board has nct yet ruled on oetitions to intervene and the movant is not yet a carty.
Cf.10 CFR 52.714(g) and s2.715(a). The Appeal Board has previously held that except in the case of a denial of a petition for intervention, an appeal may be taken only by a carty to the proceeding.
Duke Power Co.
(Perkins Nuclear Station, Units 1, 2 and 3) ALAB-433, 6 NRC 469 (1977).
Indeed, there is a serious question whether non-parties may raise fictions of any kind.
See 10 CFR 92.730, which speaks only in terms of the " moving party."
790205004'
. might occur if the Appeal Board were to grant an appeal by Tex PIRG and order a remand after the initial decision.S Such reasoning and argument do not constitute justification for an inter-locutory appeal. The Commission's rules provide that interlocutory rulings may not be appealed.b ertification motions will be granted only in extraordinary C
circumstances where injury to the public interest or unusual delay or expense is involved. E The rule against interlocutory appeals may be relaxed to settle a legst point of general applicability,S but the general policy of the Commis -
sion does not favor this.
Furthermore, parties seeking certification should explain the unusual situation which indicates such review is warranted.S To prevail, the petitioner for certification must show exceptional circumstances which, either in furtherance of the public interest or to avoid imposition of a patently unreasonable burden on a litigant, dictates that the Appeal Board step into a case prior to its S
The third question presented by Tex PIRG has not been raised before and ther6. fore fails to qualify as a matter for appeal.
S 10 CFR S2.730(f).
S uerto Rico Water Resources Authority (North Coast Nuclear Plant, P
Unit 1) ALAB-361, 4 NRC 625 (1976).
O Toledo Edison Co. (Davis-Besse Nuclear Power Station) ALAB-300, 2 NRC 752, 769 (1975).
U Public Service Co. of New Hampshire (Seabrook Station, Units 1 and
- 2) ALAB-271, 1 NRC 478, 483 (1975); Cleveland Electric Illuminatina Co. et al. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-300, 2 NRC 752, 759 (1975).
See also:
Public Service Co. of Oklahoma et al. (Black Fox Nuclear Power Station, Units 1 and 2) Docket Nos.
STN 50-556 and STN 50-557, unpublished order of November 3,1978.
(Cert ification denied because Intervenors failed to explain detriment to public, unusual delay, or major questions of law, policy or pro-cedure which could not be resolved except by the Conmissior or Appeal Board.)
. conclusion.S Absent a truly exceptional delay or expense, the risk that a licensing board's interlocutary ruling may eventually be found to have been erroneous and that further proceedings must be held is one that must be assumed by the board and parties to the proceeding.
Discretionary interlocutory review is undertaken only when immediate and serious irreparable impact, not alleviable by appeal, threaten a party or when the ruling below affects the basic structure of the proceeding in a pervasive or unusual manner. E Contrary to the decisions cited above, Tex PIRG has shown no extraordinary circumstances on which to base a motion for certification. No novel or unsettled questions are raised by Tex PIRG's petition which differentiate this proceeding from others where contentions are limited. The boundaries placed on intervention and contentions for this proceeding are not exceptional.b The contentions sought to now be raised could have been raised five years ago.
Tex PIRG has failed to demonstrate any detriment to the public or undue delay or expense caused by limiting the contentions that may now be filed to those 3 Id. p. 486.
See also Consumers Power Co. (Midland Plant, Units 1 and
'2TALAB-382,5NRC603(1977).
I ommonwealth Edison Co. (Zion Station Units 1 & 2) ALAB-ll6, C
6 AEC 258, 259 (1973).
E ublic Service Co. of Indiana (Marble Hill Nuclear Generating P
Station, Units 1 and 2) ALAB-405, 5 NRC 1190,1192 (1977); Offshore Power Systems (Floating Nuclear Plant), ALAB-517, 9 NRC (slip opinion pp. 4-6, January 4, 1979).
b The Board in the proceedings for the Shearon Harris plant limited con-tentions in the same manner as this Board under similar circumstances.
See:
Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units I, 2, J, 4) 00cket Nos. 50-400 through 50-403), Notice of Intervention Procedures, (unpublished Order, June 17, 1977).
._~
_4_
which may have arisen from changed circumstances since the original notice of hearing and opportunity to intervene was published five years ago. A ruling limiting the subject matter of new contentions is no different from the denial of admission of a contention at the start of a proceeding. Tex PIRG will not suffer irreparable injury from the Board's ruling, nor does that ruling affect the basic structure of the proceeding in any unusual manner.
Wrongful denial of contentions may be appealed at the conclusion of the proceeding.
However, as the Appeal Board has stated in other proceeuings, it has not the duty, resources, or inclination to arbitrate threshold disputes over what are cognizable contentions.E Tex PIRG's sole basis for its certification request is that a possible appeal and a possible remand would cause delay by su'stantial repetition o
of the proceedings. This reasoning fails to qualify as an " exceptional circumstance." Appeal is available in every case, and wnere remand is ordered, repetition of the proceedings occurs to some degree.
The possi-bility of reversal and remand after appeal applies to every interlocutory ruling made during a proceeding and is not an " extraordinary" situation, E Project Manaaement Corp. (Clinch River Breeder Reactor Plant) 3 NRC 406, 407; reconsideration denied, ALAB-330, 3 NRC 613, rev'd on other arounds, CLI-76-13, 4 NRC 67 (1976); Offshore Power Systems (Floating Nuclear Power Plants), suora.
- but rather the routine, nomal situation. As indicated in Zion, N the Appeal Board has previously detemined that the possibility of reversal after appeal is not a proper justification for the extraordinary remedy of certification.
The Commission's rules provide for timely intervention in response to a notice rf hearing and also allow untimely intervention where the petitioner provides a convincing analysis and balancing of the five factors set forth in 10 CFR 52.714(a).
However, nothing in the Commis-sion's rules or in general legal principles allows intervention five years after notice is published with respect to issues which could have been raised in a timely manner, where no good reason for such tardiness isshown.b Indeed, as we have argued previously, the Board's decision 5
ALAB-ll6, op_ cit.
b The import of the " Corrected Notice of Intervention Procedures" issued by this Board on September 1,1978 is nothing more than a recognition that contentions which would ordinarily have been deered untimely pursuant to 10 CFR 52.714 are now considered timely insofar as they are based upon changes in plans for the station or new information. Any proffered contentions which are outside the boundaries set forth in the Board Order of September 1 would be con-sidered untimely and justification would have to be provided based on the analysis required by 10 CFR 32.714(a) which includes:
(i) Good cause, if any, for failure to file on time.
(ii) The a availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be repre-sented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
to give notice of opportunity to intervene on a limited basis was discretionary and not mandatory under the Atomic Energy Act or the Commission's regulations. E The Staff believes Tex PIRG has failed to substantiate its motion for certification with any compelling reason for doing so and has described no extraordinary circumstances which would overcome the Commission's rule prohibiting review of interlocutory rulings.
The Staff urges the motion be denied.
Respectfully submitted, jjf._) -
Nd A Coll.en P. Woodhead Counsel for flRC Staff hl 8
Stephen M. Schinki Counsel for flRC Staff Dated at Bethesda, Maryland this llth day of January,1979 N See "NRC Staff's Response to Licensing Board's Order of March 23, 1978," dated April 10, 1978.
UNITED STATES OF AMERICA NUCLEAR P,EGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of'
)
)
HOUSTON LIGHTING & POWER COMPANY
)
Docket No.
50-466 1
(Allens Creek Nuclear Generating Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO TEX PIRG MOTION FOR CERTIFICATION" 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, through depoist in the Nuclear Regulatory Commission'S internal mail system, this lith day of January,1979:
Sheldon J. Wolfe, Esq., Chairman
- Jack Newman, Esq.
Atomic Safety and Licensing Lowenstein, Reis, Newman & Axelrad' Board Panel 1025 Connecticut Avenue, N.W.
U.S. Nuclear Regulatory Commission Washington, D. C.
20037 Washington, D. C.
20555 Richard Lowerre, Esq.
Dr. E. Leonard Cheatum Asst. Attorney General for the Route 3, Box 350A State of Texas Watkinsville, Georgia 30677 P. O. Box 12548 Capitol Station Mr. Gustave A. Linenberger Austin, Texas 78711 Atomic Safety and Licensing Board Panel Hon. Jerry Sliva, Mayor U.S. Nuclear Reaulatory Commission City of Wallis, Texas 77485 Washington, D. C.
20555 Hon. John R. Mikeska R. Gordon Gooch, Esq.
Austin County Judge Baker & Botts P. O. Box 310 1701 Pennsylvania Avenue, N.W.
Bellville, Texas 77418 Washington, D. C.
20006 Atomic Safety and Licensing J. Gregory Copeland, Esq.
Appeal Board
- Baker & 30tts U.S. Nuclear Regulatory Commission One Shell Plaza Washington, D. C.
20555 Houston, Texas 77002
. Atomic Safety and Licensing Docketing and Service Section
- Board Panel
- Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Mr. Wayne Rentfro James Scott, Jr., Esq.
P.O. Box 1335 Texas Public Interest Rosenberg, Texas 77471 Research Group, Inc.
Box 237 UC-Mr. John F. Doherty University of Houston Armadillo Coalition of Texas, Houston, Texas 77004 Houston Chapter 4438 1/2 Leeland Avenue Mr. Emanuel Baskir Houston, Texas 77023 5711 Warm Sprinas Road Houston, Texas 77035 T. Paul Robbins 600 W. 28th #102 Mrs. R. M. Bevis Austin, Texas 78705 7706 Brykerwoods Houston, Texas 77055 Mr. D. Michael McCaughan Member Mr. F. H. Potthoff, III The Environmental Task Force 1814 Pine Village 3131 Timmons Ln. Apt. 254 Houston, Texas 77080 Houston, Texas 77027 Brenda A. McCorkle.
Mr. John R. Shreffler 6140 Darnell 5014 Braeburn Houston, Texas 77074 Bellaire, Texas 77401 Steven Gilbert, Esq.
Ms. Shirley Caldwell Van Slyke & Gilbert 14501 Lillja Attorneys at Law Houston, Texas 77060 son Morton Strest Richmond, Texas ~ 77469 Mr. Robert S. Framson 4822 Waynesboro Drive Mr. Jean-Claude De Bremaecker Houston, Texas 77035 2128 Addison Houston, Texas 77030 Carro Hinderstein 8739 Link Terrace Mr. Brent Miller Houston, Texas 77025 4811 Tamarisk Lane Bellaire, Texas 77401 f;s. Ann Wharton 1424 Kiplina Mr. Allen D. Clark Houston, Texas 17u00 56n2 Rutherglenn Houston, Texas 77096
% D. Marrack Ms. Lois H. Anderson 420 Mulberry Lane Mr. John V. Anderson Bellaire, Texas 77401 3626 Broadmead Houston, Texas 77025 Dr. Joe C. Yelderman Box 303 Mr. Lee Loe Needville, Texas 77461 1844 Kipling Houston, Texas 77098 Ms. Kathryn Hooker 1424 Kipling Mr. John Renaud, Jr.
Houston, Texas 77006 4110 Yoakum Street Ap t. 15 Ms. Patricia L. Day
' Houston, Texas 77006 2432 Nottingham Houston, Texas 77005 Mr. George Broze 1823-A Marshall Street Mr. David Marke Houston, Texas 3940 Warehouse Row Suite C National Lawyers Guild Austin, Texas 78704 Houston Chapter 4803 Montrose Blvd.
Ms. Madeline Bass Framson Suite 11 4822 Waynesboro Drive Houston, TX 77006 Houston, Texas 77035 Edgar Crane Joseph F. Archer, Esq.
13507 Kingsride Combs, Archer and Peterson Houston, TX 77079 811 Dallas #1220 Houston, Texas 77002 Gregory Kainer 11118 Wickwood Houston, TX 77024 Stepheh M. Sohinki' Counsel for NRC Staff s
he me -
me
.