ML19323B940
| ML19323B940 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 05/12/1980 |
| From: | Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19323B941 | List: |
| References | |
| ALAB-590, NUDOCS 8005140440 | |
| Download: ML19323B940 (8) | |
Text
80 0514 ON % Q h
05/12/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0f'lilSSION BEFORE THE AT0flIC SAFETY AND LICENSING BOARD In the Matter of
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445 COMPANY, ET AL.
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50-446 (Comanche Peak Steam Electric Station, Units 1 and 2)
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NRC STAFF MEMORANDUM ON ALAB-590 AND ITS APPLICABILITY TO A DETERiINATION ON THE ADMISSIBILITY OF THE PROPOSED CONTENTION" 0F THE INTERVENORS IN THIS PROCEEDING I.
INTRODUCTION The Atomic Safety and Licensing Board (Board) convened a Special Prehearing Conference on April 30, 1980, to hear the position of the parties "on those contentions that have not yet been ruled on by the Board." See " Order Scheduling Prehearing Conference" dated March 19,1980.M At the beginning of the prehearing conference, the Nuclear Regulatory Commission Staff (Staff) brought to the attention of the Board and other parties a decision, ALAB-590,2_/
of the Atomic Safety and Licensing Appeal Board (Appeal Board) issued eight days earlier, on April 22,1980 (Tr.141-142).
In view of the relevance of y
A further purpose of the conference, as described by the Board, was to hear oral argument as to "whether it is appropriate to refine the language of the quality assurance contention admitted by the Board."
y Houston Lighting and Power Comoany (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, NRC (April 22,1980) (Slip. Op.)
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2-this recent Appeal Board decision to the purpose of the prehearing confer-ence, the Board granted the request of counsel for the Applicants that the participants, if they desired, be permitted to file a memorandum addressing the Appeal Board's holding in ALAB-590 (Tr. 306, 307).
As discussed more fully below, the principles described below governing the admissibility of contentions, as most recently applied by the Appeal Board in ALAB-590, support admission of CFUR's proposed contentions 2.A. and 6.
and ACORit's proposed contentions 4.,
7.,15. and 20., in addition to the proposed contentions of the various Intenenors supported by the Staff for admission in its report of April 10, 1980.M II. PRINCIPLES GOVERNING THE ADMISSIBILITY OF CONTENTIONS As a general matter, in order for proposed contentions to be found admissi-ble, they must fall within the scope of the issues set forth in the Notice of Hearing initiating the proceeding, and comply with the requirements of 10 CFR 9 2.714(b) and applicable Commission case law. Northern States Power Co. (Prairie Island, Unit Nos.1 and 2) ALAB-107, 6 AEC 188,194 (1973), aff'd, o
j BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.1974); Duquesne Light Co. (Beaver Valley, Unit No.1), ALAB-109,-6 AEC 243, 245 (1973).
10 CFR i
i 6 2.714(b) requires that a list of contentions which intervenors seek to have 3)
See "NRC Staff's Report on Its Position Concerning the Admissibility of Intervenors' Contentions," April 10, 1980.
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. litigated be filed along with the bases for those contentions set forth with reasonable specificity.4/ The purpose of the basis requirement of 10 CFR
% 2.714 is to assure that the contention in question does not suffer from any of the infinnities listed in fn. 4, to establish sufficient foundation for the contention to warrant further inquiry of the subject matter in the proceeding, and to put the other parties sufficiently on notice "so that they will know at least generally what they will have to defend against or oppose." Peach Bottom, supra at 20. From the standpoint of basis, it is unnecessary for the petition "to detail the evidence which will be offered in support of each contention". Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
Further-more, in examining the contentions and the bases therefor, a licensing board is not to reach the merits of the contentions. Duke Power Co. (Amendment y
A contention must be rejected where:
(a) it constitutes an attack on applicable statutory requirements; (b) it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; (c) it is nothing more than a generalization regarding the intervenor's views of what applicable policies ought to be; (d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (e) it seeks to raise an issue which is not concrete or litigable.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).
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. to flaterials License SNM-1773 - Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979); Peach Bottom, supra at 20; Grand Gulf, supra at 426.
In sum, at the petition stage, although intervenors need not establish the validity of their contentions and the bases therefor, it is incumbent upon intervenors to set forth contentions and the bases therefor which are suffi-ciently detailed and specific to demonstrate that the issues raised are admissible and that further inquiry is warranted, and to put the other parties on notice as to what they will have to defend against or oppose.
In ALAB-590, supra, the Appeal Board once again discussed the principles governing the admissibility of contentions derived from 10 CFR 5 2.714(b) and the applicable case law. Applying the principles to the facts in that proceeding, the Appeal Board overturned the Licensing Board's rejection of 5
a contention _/ alleging that a marine biomass fann (apparently not considered by the Staff in its evaluation of alternatives in the Final Environmental Statement Supplement) would be environmentally preferable to Allens Creek.6/
Acconfing to the Appeal Board, the Licensing Board erred in holding that in
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Houston Lighting and Power Co. (Aliens Creek Nuclear Generating Station, Unit 1), LBP-80 NRC
, (March 10,1980) (Slip. Op).
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Because the rejection led to the outright denial of the petition for leave to intervene, it was subject to interlocutory appellate review under 10 CFR 5 2.714a at the instance of the petitioner. ALAB-590, supra, slip. op. at 2.
. order to put into litigation the marine biomass alternative (and the Staff's failure to have considered it), the petitioner was required not merely to allege that the alternative would be environmentally preferable but also to explain why that is so. ALAB-590, supra, slip. op. at 8.
The Appeal Board held that that holding cannot be squared with its 1973 decision in Grand Gulf, ALAB-130, supra, and therefore, the teachings of Grand Gulf mandated reversal of the Licensing Board's detemination. More specifically, the Appeal Board stated that all that was required at the petition stage was that petitioner:
... state his reas;ns (i.e., the basis) for his contention that the biomass alternative should receive additional con-sideration. That responsibility was sufficiently discharged by his references to Project Independence and his assertion respecting the environmental superiority of a marine biomass farm." ALAB-590, supra, slip. op. at 11.
It is noteworthy that the Appeal Board's detemination that the petitioner must be admitted to the proceeding on the strength of his contention:
does not carry with it any implication that we view the contention to be meritorious..." ALAB-590, supra, slip, op at 12.
Moreover, the Appeal Board emphasized that whether the petitioner will be able to prove the assertions underlying the contention is quite beside the point at this preliminary stage of the proceeding.
Id, slip. op. at 13.
According to the Appeal Board, it does not follow that this contention will have to be taken up at the forthcoming evidentiary hearing on the Allens Creek application, since:
.. the Section 2.749 summary disposition procedures provide, in reality as well as in theory, an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues..."
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slip. op. at 14-15.
ALAB-590 does not purport to change the existing law governing the admis-sibility of contentions.
Rather, it merely emphasizes that in ruling on the admissibility of contentions, a licensing board is not to venture beyond the contention and its stated basis into the merits of the contention. All that a licensing board need determine is whether there is a reason (basis) for the contention set forth with reasonable specificity. Any question con-cerning the validity of the contention or of its basis must be left for con-sideration when the merits of the controversy are reached, i.e., through summary disposition or in the evidentiary hearing.
III. APPLICATION OF THE CASE LAW, AS INTERPRETED BY THE APPEAL BOARD IN ALAB-590, TO THE CONTENTIONS PROPOSED IN THIS PROCEEDING In the Staff's report on the contentions proposed by the Intervenors, supra, the Staff discussed the applicable case law in much the same terms stated above in Section II (without citation of ALAB-590).
In considering the example ALAB-590 provides as to what constitutes an admissible contention, it became apparent to the Staff that there are certain proposed contentions in this proceeding which the Staff had opposed for lack of basis but which the Staff now believes should be admitted as issues in controversy. These contentions are CFUR's proposed contentions 2.A. and 6. and ACORN's proposed P
. contentions 4., 7.,15. and 20.
In light of ALAB-590, it appears that in the relevant portions of the Staff's report, supra, evaluating the admis-i sibility of these contentions, the Staff went beyond detennining whether a reason (basis) had been provided for the contention and examined the valid-ity of the reasons offered in support of the particular contention. ALAB-590 emphasized that at the petition stage, Intervenors need not establish the validity of their contentions and of the bases therefor. Accordingly, at the prehearing conference, the Staff changed its position on the above l
identified contentions, stating that in its view, each contention and its bases satisfies the specificity requirements of 10 CFR 9 2.714.
- Further, each contention raises an issue appropriate for consideration in this pro-ceeding. Based on the Comission's regulations and the applicable case law, including the Appeal Board's decision in ALAB-590, supra, these contentions thus constitute admissible contentions.
The Staff's view supporting admission of these contentions does not carry any implication that the Staff views these contentions to be meritorious.
For example, in ACORN's proposed contention 6., ACORN alleges that "the CPSES design does not adequately assure that safety-related water supplies will be available for plant operation in the event of ice build up at the service water intake structure." In support of this contention, ACORN 1
states that ice stonns have been known to occur in the Dallas /Ft. Worth area l
l and that an ice stonn incapacitated Applicants' lignite plants. Whether this contention is meritorious is questionable, especially in view of Appli-cants' statement at the prehearing conference that the ice at the bodies of
- water surrounding CPSES would have to be fifteen feet thick to affect the availability of safety-related water supplies. Nevertheless, as the cipeal Board emphasized in ALAB-590, sur a, whether the proponent of a contention will be able to prove the assertions underlying the contention is quite beside the point at this preliminary stage of the proceeding. Jd., slip.
op, at 13.
IV. CONCLUSION The Staff believes that application here of the teachings of ALAB-590 sup-ports admission of CFUR's proposed contentions 2.A and 6. and ACORN's pro-posed contentions 4., 7.,15. and 20., in addition to the contentions sup-ported by the Staff for admission in its report of April 10,1980, supra.
Respecfully submitted Mh bbM Marjorie Ulman Rothschild Counsel for NRC Staff Dated at Bethesda, Maryland this 12th day of May,1980 1
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