ML19345G821
| ML19345G821 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/16/1981 |
| From: | Bishop C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Citizens Concerned About Nuclear Power, INC., CITIZENS FOR EQUITABLE UTILITIES |
| References | |
| ALAB-637, ISSUANCES-OL, NUDOCS 8104220437 | |
| Download: ML19345G821 (10) | |
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UNITED STATES OF AMERICA F
DOCW27t3 NUCLEAR REGULATORY COMMISSION D "* -
APR 17; gag, 9 ATOMIC SAFETY AND LICENSING APPEAL BOARD Oi';,.. f"*N C:5.,.'
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//
Administrative Judges:
q, cq,y Richard S.
Salzman, Chairman N
Dr. John H. Buck SEnygg APR 17 gg Christine N. Kohl
)
In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY,
)
Docket Nos. 50-498 OL
_E T _A L.
)
50-499 OL
)
(South Texas Project, Units
)
1 and 2)
)
)
Mr. Lanny Sinkin, Austin, Texas, for intervenors Citizens Concerned About Nuclear Power, Inc.,
and Citizens for Equitable Utilities.
Messrs. Jack R. Newman, Maurice Axelrad, and Alvin H.
Gutterman, Washington, D.
C., and Messrs. Finis E.
Cowan and Thomas B. Hudson, Jr.,
Houston, Texas, for applicants Houston Lighting
& Power Company, et al.
Mr. Jay M. Gutierrez for the Nuclear Regulatory Commission staff.
OtlIG.,
8 MEMORANDUM AND ORDER p
i April 16, 1981 d-Z n o 16@,
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(ALAB-637) w "
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3 Intervenors Citizens Concerned About Nuclear Power, Inc. (CCANP), and Citizens for Equitable Utilities (CEU) 9503 s
I l g3o,1220437
e.
have jointly filed two pleadings, each requesting interlocutory review of portions of the Licensing Board's April 1,1981, Third Prehearing Conference Order.
The first, styled a
" Notice of Appeal," objects to the Licensing Bodrd's denial of intervenors' motions for a 90-day postponement of the 1/
scheduled hearing date in this case.--
The second pleading is a " Notice of Appeal and Request for Directed Certification" of the Licensing Board's specification of issues set forth in its Second Prehearing Conference Order (Decenber 2, 1980) and 2/
reaffirmed in its Third Prehearing Conference Order.--
Intervenors argue that they established " good cause" to warrant a substantial delay in the start of the hearing.
Specifically, they point to (1) the extended illness of Mrs. Peggy Buchorn, described as "the only representative 1_/
Intervenors later suggested a 30-day postpenenent as an alternative.
Tr. 379, 385.
The hearing is scheduled to conmence May 12, 1981.
2/
Although intervenors address this pleading to the Commission, under the Rules of Practice, requests of this nature fall within our jurisdiction.
See 10 C.F.R. 2.718(i), 2. 78 5 (b) (1) ; Censumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC T53, 604 n.1 (1977).
i I
. l of [CEU) with the expertisc and experience to serve as interveno-in these proceedings;" (2) the unexpected with-drawal of CCANP's legal counsel two weeks before the Third Prehearing Conference; and (3) the unavailability during May of CCANP's representative (Mr. Lanny Sinkin). Inter-venors contend that the Licensing Board's refusal to delay the hearing in view of these factors " adversely impacts the goal of a complete record in the initial hearing by restricting the ability of intervenors to prepare for and participate in the hearing."
They also a.ssert that the Board gave too much weight to hearing room availability and personal scheduling conflicts in devising the hearing schedule.
In their second pleading, intervenors argue that the Board's delineation of the issues under consideration in the upcoming initial hearing denies them certain relief "specifi-cally mandated" by the Commission in response to a prior request of intervenors.
See CLI-80-32, 12 NRC 281 (1980).
In that proceeding, intervenors requested a hearing on an order issued by the Commission's Director of the Office of Inspection and Enforcement, directing applicants to show cause why safety-related construction activities at South Texas should not be halted pending modification of certain operations and procedures.
. The Commission denied intervenors' hearing request but granted them the alternative relief of litigating the " quality assurance / quality control" (QA/QC) issues they raised in this operating license adjudication.
The Commission further ordered the Board assigned to the licensing proceeding to expedite the hearing on the quality control-related issues and to issue an early, separate decision on this matter.
Id. at 291-292.
Pursuant to that order, the Licensing Board held a prehearing conference and formulated the QA/QC issues that would be the focus of the expedited hearing.
Second Prehearing Conference Order, Attachment; see also Third Prehearing Conference Order at 8-11.
Intervenors contend that the issues as framed by the Licensing Board improperly deal with applicants' alleged remedial activities.
They assert that the relief that the Commission granted them permits consideration in the separate, expedited hearing of only the applicants' past actions.
Both the NRC staf f and the applicants oppose intervenors '
requests, primarily on the ground that intervenors have failed to show the " exceptional" circumstances necessary to warrant interlocutory review of either ruling.
i II.
The Commission's Rules of Practice prohibit appeals of interlocutory licensing board rulings such as those involved here.
We will therefore treat both of
I intervenors' filings as requests for discretionary interlocu-tory review via directed certification.
See 10 C.F.R. 2.718(i) and 2.785(b) (1).
Such requests, however, are granted infrequently "and then only when a licensing board's action either (a) threatens the party adversely affected with immediate and serious irrepara-ble harm which could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Electric and Gas Co. (Salem Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980), and cases cited.
Intervenors have not satisfied these criteria as to either of their requests.
A.
Intervenors ask us to review and overturn the Licensing Board's denial of a postponement of the QA/QC hearing.
But as we have stated previously,
. we enter the scheduling thicket cautiously.
We are inclined to do so only to entertain a claim that a board abused its discretion by setting a hearing schedule that deprives a party of its right to procedural due process.
Public Service Co. of Indiana, Inc. (Marble Hill Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978).
See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-295, 2 NRC 668, 669-670 (1975).
Moreover, we are particularly loath to interfere with a licensing board's denial of a request to delay a proceeding where, as here, the
. Commission has ordered an expedited hea:Ing.
In such a circum-stance, there must be a compelling demonstration of a denial of due process or the threat of immediate and serious irreparable harm in order to invoke our discretionary review.
Intervenors' arguments do not rise to this level.
They contend that, absent at least a 30-day extension of the hearing 3/
- date, their ability to prepare for and participate in the initial hearing will be " seriously restricted."
As noted above, they attribute their need for additional time to the illness of CEU's representative, the withdrawal of CCANP's counsel, and the unavailability of CCANP's representative to prepare for the May hearing.
Yet balanced against these considerations are the following facts:
(1) intervenors have known since November 19, 1980, that the hearing would commence ?n early May 1981 and that alterations to the schedule would be dis-favored (Tr. 322-323; Second Prehearing Conference Order at 5-7) ; (2) intervenors have not provided any specific explana-tion as to why no other members of their organizations are 4/
available or able to participate in the upcoming hearing; 3_/
See note 1, supra.
--4/
In this regard, we note that CCANP recently filed with us a pleading in another pending " appeal" involving South Texas, signed by a representative other than Mr. Sinkin and showing an attorney "of counsel" (CCANP's " Opposition to NRC's ' Notice of Appeal and List of Exceptions' and Cross-Appeal-March 24, 1981").
In addition, Mrs. Buchorn of CEU stated at the Third Prehearing Conference that she would do "everything in (her] power to be ready by [the May 12 hearing date]."
Tr. 380.
. (3) ti parties will have had almost two full months between the Board's oral ruling (at the Third Prehearing Conference) denying the pcstponement and the first day of hearing; and (4) perhaps most important, the Commission ordered this hearing to be expedited almost seven months ago.
We cannot say that the Licensing Board abused its dis-cretion or denied intervenors due process in weighing these competing interests and devising a schedule that necessarily takes account of other exigencies (such as hearing room and judge availability).--5/
Intervenors have failed to show that the Board's hearing schedule will either cause them "immediate and serious irreparable harm" or affect "the basic structure of the proceeding in a pervasive or unusual manner."
Under these circumstances, our intervention in this scheduling dis-pute is not justified.
B.
We must similarly deny intervenors' request for review of the Licensing Board's specification of issues for consid-6/
eration in the QA/QC hearing.--
This is yet another pro-cedural matter within the Licensing Board's discretion, not
--5/
The Board also made numerous efforts to accommodate intervenors' needs in setting the hearing schedule.
Tr.
389, 391, 393-396.
Moreover, while denying a delay in the hearing, it granted intervenors' requests to file its witness lists out of time.
Third Prehearing Conference Order at 6.
--6/
The Licensing Board expressly denied intervenors' motion to certify this question to us.
Third Prehearing Conference Order at 11.
. warranting our interference absent a showing of the exceptional circumstances specified in Salem, supra.
And again, intervenors have failed to demonstrate such circumstances exist here.
As we understand intervenors' argument, their principal objection to the issues farc.ulated by the Board is that they assertedly ecver more (and new) quality control-related matters than the Commission intended in its September 1980 order.
Intervenors contend that this action thus " denies (them] relief specifically mandated by the Commission in said Memorandum and Order."
Beyond this generali=ed assertion, however, intervenors fail to explain exactly how the Board's statement of issues results in such a denial of relief and consequently "immediate and serious irreparable harm."
Assuming arcuendo that the Board's issues do broaden the 7/
intended scope of the hearing ordered by the Commission, we do not see how this denies intervenors, either in fact or in effect, the separate, expedited hearing en their QA/QC issues.
The Licensing Board has not issued any final ruling on applicants' QA/QC program, and intervenors will be free to pursue their re-lated contentions and issues at the hearing.
This is neither immediate nor serious irreparable harm.
Moreover, we perceive 7/
In view of our denial of the request for directed certi-
~~
fication, we express no judgment on whether the Board's ruling is consistent with the Commission's order.
- no pervasive or unusual affect on the basic structure of the hearing as a result of an alleged broadening of the QA/QC issues.
Intervenors' request for review of the Ecard's delineation of issues in this special hearing is analogous to a request for review of a licensing board's rejection of some, but not all, of a party's contentions advanced in connection with its petition to intervene.
As we pointed out in Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-599, 12 NRC 1, 2 (1980), this type of appeal "is unauthorized by the Commission's Rules of Practice" since it does not dispose of the petition in its entirety.
See 10 C.F.R. 2.714a.
But, as we also noted, a party aggrieved by such board action can raise the rejection of these contentions on appeal from the board's initial decision.
12 NRC at 2 n.l.
The same is true in this case.
If indeed the Board's specification of issues is at odds with the Commission's direction and ultimately causes harm to intervenors, they will have every opportunity I
to challenge the Board's partial initial decision -- issued
-~a/
i after the hearing -- on appeal.
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Houc'_On Lighting & Pcyer Co. (Allens Creek Station, Un::.ts 1 and 2), ALAB-idl, 2 NRC 853, 854 (1975).
See a19.o Third Prehearing Conference Order at 11.
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. In sum, intervenors have failed to demonstrate -- and we are unable to find -- the exceptional circumstances that would warrant the exercise of discretionary review, via directed certification, of the two procedural rulings challenged here.
Accordingly, intervenors' appeals are dismissed and their request for directed certification is denied.1 !
It is so ORDERED.
FOR THE APPEAL BOARD C, b 3 3L d C. J(gn Bishop
\\
Secretary to the Appeal Board
--9/
Still pending our consideration in this case are the staff's " Notice of Appeal and List of Exceptions" and
" Motion for Directed Certification," which relate to a separate Licensing Board ruling.
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