ML19343D611

Response in Opposition to NRC 810403 Notice of Appeal of ASLB Grant of Intervenor Motion to File Out of Time & of Intervenor Motion to Compel & in Opposition to NRC 810403 Request for Certification.Certificate of Svc Encl

ML19343D611
Person / Time
Site:	South Texas
Issue date:	05/01/1981
From:	Jordan W CITIZENS FOR EQUITABLE UTILITIES, SHELDON, HARMON & WEISS
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8105050545
Download: ML19343D611 (12)

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/, UNITED STATES OF AMERICA I C6l * ' l H' NUCLEAR REGULATORY cot 1 MISSION t- ;fa.0119814'shEFORE THE ATOMIC SAFETY AND LICE (ls Q8gg% 4.N ~.

In the Matter of )

) Docket No. 50-498 HOUSTON LIGHTING AND POWER CO. ) 50-499 (Souch "~~as Project, Units 1 )

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CITIZENS FOR EQUITABLE UTILITIES OPPOSITION TO NRC STAFP APPEAL AND MOTION FOR DIRECT CERTIFICATION By Order of April 24, 1981, the Appeal Board asked all parties in this proceeding to provide concise responses to the NRC Staff's " Notice of Appeal and List of Exceptions,"

and " Motion for Direct Certification Pursuant to 10 CFR S2.785(d)," by May 1, 1981. The NRC Staff filed these two documents on April 3, 1981, seeking the following:

1. Appeal of the Licensing Board's grant of inter-venors' Motion for Leave to File Out of Time.

2. Appeal of the Licensing Board's grant of inter-venors' Motion to Compel the NRC Staff.

3. Directed Certification to the Commission of the issue of compelling the staff to reveal the names of " confidential" sources interviewed in the course of investigations that lead to a show cause order of May 1980.

Citizens for Equitable Utilities opposes these requests i because (1) none of the issues is ripe for appeal and (2) if an appeal were granted, the NRC Staff's arguments would fail on their merits.

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I. Appeal Of The Grant Of Leave To Pile Out Of Time.

According to its List of Exceptions, the Staff wishes to appeal the Licensing Board's order granting intervenors permission to file out of time to compel the NRC Staff to respond to discovery. That the, Staff should make this request in light of the consistent and long-standing NRC precedents is nothing short of remarkable. This is a classic example of the sort of procedural decision that is well 4

within the discretion of the Licensing Board and is not sub-ject to interlocutory appeal.

A review of the Licensing Board's decision of March 24, 1981, establishes that the Board was thoroughly familiar with the scheduling issues, the various deadlines, and the likely impacts on the parties of allowing the Motion to Compel to be filed late. Further, the Board specifically found good cause for the late filing based on the need for ,

effective participation by intervenors. In light of the great deference given to the Licensing Board in scheduling and other procedural matters and of the fact that the late filing of the Motion to Compel in no way prejudices the NRC Staff or any other parties, the Staff appeal of this issue is clearly interlocutory and may not be heard. Pennsylvania Power and Light Co. and Allegheny Electric Cooperative, Inc.

(Susquehanna Steam Electric Station, Units 1 and 2), ALAB-563, 10 NRC 449 (1979); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-602, 12 NRC 28 (1980).

a II. Appeal And' Request For Directed Certification Of The Order Compelling Discovery.

Although the NRC Staff's attempt to appeal the Licensing Board's order, and its request for Directed Certification are slightly different, they will be argued together here since the relevant points are quite similar. In neither case is consideration by a higher tribunal than the Licensing Board appropriate at this stage of the proceeding.

With respect to the appeal request, the NRC Staff relies on the " collateral order doctrine" and on cases concerning the authority for discretionary review. In NRC practice, these merge in the principles set out in the Marble Hill decision:

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 proceed-ing in a pervasive and unusual manner.

Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). The NRC Staff cannot meet either of those tests here.

The similar test for Directed Certification is found in 10 CFR 2. 785 (d) :

In the proceedings described in paragraph (a)  !

of this section, an Atomic Safety and Appeal Board may, either in its discretion or on direction of the Commission, certify to the Commission for its determination major or novel questions of policy, law or procedure.

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Of course, major or novel issues arises in many cases, but not all of them are appropriate to be heard by the Commission.

To the contrary, the directed certification authority is to be " exercised sparingly," and " absent compelling reason,"

the Appeal Board will decline to certify a question to the Commission. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station) and Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2) , ALAB-421, 6 NRC 25, 27 (1977). The NF.C Staff has failed to demonstrate any such compelling reason in this case.

The core of the Staff argument that either the Appeal Board or the Commission should consider these issues is the as yet unfounded allegation that the carefully protected disclosure of source names in the context of a licensing hearing will somehow compromise Staff's ability to gain access to confidential sources in the future. In particular, the NRC Staff suggests that employees and others at nuclear plants would be fearful of talking to NRC inspectors and investigators because their identities might later be revealed and they might be subjected to physical, financial, and social penalties. Certainly no one is more sympathetic to the plight of these employees than is Citizens for Equitable Utilities, which has seen so many of them harassed so unmer-eifully after having their names revealed in the public press. However, the NRC Staff conveniently ignores the very purpose of protective orders and in camera proceedings.

Assuming, as we must in the absence of contrary evidence,

that all parties will adhere to the protective orders, there is absolutely no basis for believing that the names of employees will ever be revealed improperly.

The NRC Staff attempts to sidestep the protective order and in camera hearing protections by suggesting that they cannot go far enough since individuals can be identified entering er leaving a hearing room or a building in which a hearing takes place. There is no basis for the suggestion that this needs to occur. People can be protected when  !

entering buildings and when entering hearing rooms, and >

there is no. need for anyone to obtain their identity. i The Staff argues, in essence, that it will suffer immediate and serious irreparable harm if the Licensing Board's order to compel is allowed to stand. This claim is based on the allegation that the order will have a " chilling effect" on further Staff investigations and the use of confidential sources at the South Texas Project and at other nuclear facilities througout the country. Again, there is no basis for this claim.~1/ Aside from the fact that identities

-1/ We are deeply distressed to see that the NRC Staff, al-though it has apparently taken a position in favor of the issuance of an operating license to Houston Lighting and Power, believes that there will be a continuing need for the use of confidential sources at the South Texas Project. Surely if they are correct in that assumption, they are incorrect in asserting that the applicant has the competence and character necessary to obtain an operating license. It is inconceivable that the NRC would issue any sort of license to a company that the NRC itself believed would need to be investigated through the use of confidential sources.

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will be protected, as discussed above, the NRC also has the authority to subpoena such potential sources as it deems necessary, and it has the authority to take virtually what-ever actions are appropriate to assure that companies do not interfere with NRC investigations. Given the latitude of those remedies, it cannot be said that the release of source names under strict protective orders in this particulc r case would cause any significant degree of harm to the NRC. In addition, there is no reason to believe that the order in this case will have repercussions at other facilities or in other cases. Undoubtedly, Licensing Boards will view each situation on its particular facts and take such actions as may be necessary to protect confidential sources while at the same time assuring a complete record.

For these reasons, the NRC Staff has failed to demonstrate that it would suffer immediate and serious irreparable harm  ;

or to show any compelling reasons for certifying these 2/

issues to the Commission at this time.- Indeed, the only way that one of the various tests for appeal or certification '

would be met in this case is if the Licensing Board's order  !

were reversed, discovery were denied, and the Licensing i

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-2/ For the same reasons, the NRC Staff has failed to meet the standards of the " collateral erder doctrine" as -

stated in its Notice of Appeal. In particular, it has not demonstrated that important rights would be irrepa-  :

rably lost if the Licensing Board's order were allowed  ;

to stand.

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Board never heard from the individuals who can provide the information that is central to this case. If that were to occur, it would affect the basic structure of the proceeding in a pervasive and unusual manner, as discussed below.

III. The Staff's Appeal Must Fail On Its Merits.

The Staff's Notice of Appeal states three exceptions that go to the merits of the issuance of the order to compel.

Each must fail.

The second exception suggests that the names of parti-cular inspectors are not necessary since all of the information obtained by those individuals has already been supplied to the parties to the proceedings. Of course, this information

was provided by the NRC Staff, and the intervenors have no way of judging whether what has been provided to them in any way reflects an accurate rendition of what was said by the inspectors in question. As adverse parties in this proceeding, the intervenors must have an opportunity to examine that question. Otherwise, the NRC Staff will have taken on the role of the Licensing Board itself, and the Board will be unable to make an independent judgment on the validity of the Staff's assertions. The Staff can hardly be allowed to assume the role of determining what facts shall be heard when it is also an adversary party to this proceeding.

The Staff's third exception argues that the Board did

! not make the requisite findings of 10 CFR S2.744. The most cursory review of the Licensing Board's decision, particu-larly pages 5-7, demonstrates that this assertion is flatly incorrect.

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Finally, the NRC Staff argues that the Licensing Board committed reversible error in failing to make an in camera inspection of the requested information. 10 CFR 2.744(c) clearly does not require the Board to make such an inspection.

It simply provides that material shall be produced for in camera inspection "if requested by the presiding officer."

It is impossible to interpret the relevant language as requiring in camera inspection prior to the issuance of an order to compel, regardless of the facts of a case.

Most important, the individuals whose identities are at issue here are precisely those people who have the best I

information concerning what has been happening at the South Texas Project for the past several years. Their information forms the basis for the NRC's stopwork order. By necessity, their information will form a major part of the basis for the Licensing Board's ultimate decision. These issues are too important to be allowed to proceed on the NRC Staff's hearsay statements of what they have learned from the actual QA/QC inspectors who were subjected to harassment. That is particularly the case if the NRC Staff is to take a position in favor of continued participation in the South Texas Project by Houston Lighting and Power and by Drown and Root.

Given that position by the NRC Staff, reversal of the order l l

to Compel would eliminate the ability of the only parties adverse to Houston Lighting and Power and Brown and Root to determine the truth of factual assertions made by those.

favorable to the Houston Lighting and Power and Brown and I

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Root positions, and it would seriously damage, if not destroy, the intervenors' ability to participate effectively in this proceeding.

Conclusion c

For these reasons, the appeal should not be heard, the Motion for Direct Certification should be denied, and if the merits are to be considered, the appeal should be denied.

Respectfully submitted,

-- - . , - - .c ,./, ,

William Mordan, III Harmon & Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 (202) 833-9070 Counsel for Citizens for Equitable

. Utilities May 1, 1981 I

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

Houston Lighting and Power Co. ) Docket No. 50-498 OL (South Texas Project, Units 1 and ) 50-499 OL and 2) )

)

NOTICE OF APPEARANCE Notice is hereby given that the undersigned will appear in this matter for Citizens for Equitable Utilities.

Name: William S. Jordan, III Address: Harmon & Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 Telephone: (202) 833-9070 Admissions: Supreme Court of Michigan District of Columbia Court of Appeals U.S. District Court for the ~

District of Columbia U.S. Court of Appeals for the District of Columbia Party: Citizens for Equitable Utilities

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William S. M dan, III Dated: April 28, 1981

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE Tile ATOMIC SAFETY AND LICENSING APPEAL ItOAltu

)

In the Matter of )

) Docket No. 50-498

!!OUSTON LIG!! TING AND POWER CO. ) 50-499 (South Texas Project, Units 1 )

and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Citizens for Equitable Utilities Opposition to NRC Staff Appeal and Motion for Direct Certification" and " Notice of Appearance," have been hand-delivered and mailed first class, postage pre-paid, on this 1st day of May, 1981, to the following parties:

Richard S. Salzman, Chairman Mr. Ernest E. Hill Atomic Safety and Licensing Lawrence Livermore Laboratory Appeal Board University of California U.S. Nuclear Regulatory Commission P.O. Box 808, L-123 Washington, D.C. 20555 Livermore, CA 94550 ,

Dr. John II. Buck, Member Melbert Schwartz, Jr., Esq.

Atomic Safety and Licensing Baker and Botts Appeal Board U.S. Nuclear Regulatory Commission One Shell Plaza flouston, TX 77002 Washington, D.C. 20555 Charles Bechoefer, Esq., Chairman Brian Berwick, Esq.

Atomic Safety and Licensing Assistant Attorney' General Board Panel Environmental Protection Div.  !

P.O. Box 12548, Capitol U.S. Nuclear Regulatory Commission Station Washington, D.C. 20555 Austin, TX 7811 Dr. James C. Lamb, III ~

Edwin J. Reis 313 Woodhaven Road Office of Executive Legal Chapel 11111, NC 27514 Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 F#

Jack R. Newman, Esq. 110 tty Wheeler , l'sq .

Lowenstein, Newman, Reis, Tim floffm.in, Esq.

Axelrad & Toll lloffman, Stecq & Wheeler 1025 Connecticut Avenue, N.W. 1008 S. Madi. son Washington, D.C. 20036 Amarillo, TX 79101 Kim Eastman, Co-coordinator Atomic Safety and Licensing Barbara A. Miller Board Panel Pat Coy U.S. Nuclear Regulatory Citizens Concerned About Commission Nuclear Power Washington, D.C. 20555 5106 Casa Oro San Antonio, TX 78233 Atomic Safety and Licensing Appeal Board Docketing and Service Section U.S. Nucicar Regulatory Office of the Secretary commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Lee L. Bishop f

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