ML19345G867
| ML19345G867 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/13/1981 |
| From: | Coy P Citizens Concerned About Nuclear Power, INC., CITIZENS FOR EQUITABLE UTILITIES |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104220561 | |
| Download: ML19345G867 (9) | |
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UNITED STATES OF AMERICA 2
APR 151981~
- p7 NUCLEAR REGUIATORY COIGISSION h
Oracf:q :cg BEFORE THE ATOMIC SAFETY AND LICENSIMG APPEAL _BO N.W"
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In the Matter of N,g @
HOUSTOM LIGHTING AND PCWER
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Docket Nos. 50-498 COMPANY, ET AL
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50-49
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(South Texas Project, Units 1 and 2)
/ 3 OPPOSITION TO I!RC 'S " NOTICE OF APPEAL A*!D LIST OF_ EXCEPTIONS" AND CROSS APPEAL - !?AECH 24, 1981 Q,
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!8 INTPODUCTION -
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7 eg Intervenor Citizens Concerned About Nuclear Power T
(hereafter CCAMP) opposes the interlocutory appeal from
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March 24, 1981 Atomic Safety and Licensing Board Memorand
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o,s and Order granting in part CCANP's Motion to Compel ?iF.C Staff to Provide Infomation.
CCANP bases its opposition to this appeal on the following grounds:
a)
The Cocmission's September 22, 1980 Memorandum and Order 12 NRC (slip opinion at pp. 10, 14) has already indicated that CCA'IP is entitled to obtain the relief requested, i.e. to " learn the identities of persons with knowledge about the incidents covered by the Director's Order (to Show Cause)"
b)
That the time entailed in briefing under 10 CFR @2 762 and decision of this matter will effectively preclude CCAMP frem presenting its case on the central issues to be heard by the ASL3 in the proceedings starting May 12, 1981.
(See 3
Intervenor Notice of Appeal from Denial of Extension served O
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/I 810422056l (9
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!!. arch 25,1981): O
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The oxceptions to the ASLB'c Order lack marit ao shown more fully below.
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In the alternative, if permission to take this interlocutory appeal is not promptly denied to the NRC cf. Federal Rules of Appellate Procedure (FRAP), Rule 5 (b) & (d), CCAMP a) moves for an expedited briefing schedule, and b) hereby notices cross-appeal, cf. FRAP Rule 4 (a).
CCANP assigns as error in support of its alternatively stated cross-appeal the followisg exceptions to the ASLB's March 27, 1981 Memorandum and Order:
1.
The ASL3 erred by denying discovery of the names
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l of persons interviewed on relevant matters by the MRC's Office of Inspector and Auditor (p. 7, note 2).
2.
The ASL3 erred by denying discovery of the names of all persons who supplied infomation to the !!RC on all relevant matters forming the basis of the Order to Show Cause dated April 30, 1980, rather than limiting i
such discovery to QA/QC inspectors and employees furnishing information on harrassment of QA/QC inspectors (pp. 7, 9).
O The NRC delayed filing the appeal until the last minute, S2 762, although the ASL3 sought to facilitate on expedited appeal (see p. 8), moreover, the !!RC delayed this appeal until after the times of inter-venor's compliance with the ASL3's corresponding order dated March 18 (docketed March 23) 1981 that the intervenors produce the names of their confidential witnesses.
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~3-3 Tho ASLB crrcd by r0 fusing to grant discovery of the sworn statements of all persons referred to in paragraphs 1 and 2 above, which are essential to an effective CCANP investigation of the evidencs these witnesses are able to offer.
ARGULENT TM OPPOSTTIO" Each of the NRC Staff's exceptions to the ASL3's March 21+, 1981 order lacks a substantial basis for a difference of opinion on appeal.
l.
The NRC Staff assigns as error that the CCANP motion was filed out of time.
Under 10 CFR $2 711 the ASL3 has authority to extend the time for doing an act "for good cause".
CCANP asserted as good cause 2) the untimely withdrawal of its attorney from the case and b) the importance of the re-quested infor=ation for a full, fair and meaningful hearing.
The ASL3 found that granting the motion will not necessarily cause delay, that the importance of CCAMP's contribution to the creation of an adequate record outweighed the timeliness factors, and that in these circumstances a " strong showing of good cause" was found (p. 3).
l These findings are not an abuse of discretion, but rather underlie sound excercise of the ASL3's discretion to assure a complete record and implementation of the Commission's Memorandum and Order of September 22, 1980 stating that the issues raised by CCANP "do deserve a full adjudicatory hearing" (p. 18) and that the Commissioners " expect the Board to look l
at the broader ramifications cf these charges in order to l
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determins whether if provsd, they should result in denial of the operating license application".
It is doubtful whether a full adjudicatory hearing may be had and the broader ramifications of the NPC's investigative findings may be effectively explored if intervenor is not given access to the requested information sufficiently in advance of the hearing to adequately develop its case on the character and competence issues.
2.
The NRC Staff assigns. as error the ASLB's finding that the requested names of witnesses, insofar as granted by the ASLB, was "necessary for a proper decision in this proceeding", (p. 7) since the information obtained by the._
Staff has already been provided.
This exception overlooks the importance to CCA"P of conducting interviews with the persons who furnished the information to a) determine whether these persons have further information not revealed to the "EC or not included in the MRC 's investigative findings, b) ascertain whether these persons might have information leading to the discovery of further admissible evidence which was not pursued by the NRC.
As a basis for conducting its interviews with these persons CCANP needs also to know what information they have previously given the NRC.
Contrary to the suggestion made by the NRC Staff in Exception 2, the
" substance of their statements" is of little value to CCA"P l
in preparing its case if the identities of those who made the statements are not specified.
3 The NRC Staff assigns as error the asserted failure of the ASLB to make findings in accordance with 10 CFR 52 7M.
This wholly unfoundsd ascertion simply ignoras the expreca findings set forth - the ASL3's Order.
The rnquirements of l
E2 7 4 are quoted at length at pages 6 and 7 of the Order.
As required by (d) of 52 7% the ASL3 entered findings as each of the four tests provided therein:
a) The names "are...directly relevant" (p. 7);
b) "The info::mation sought is exempt from automatic disclosure under 10 CFR E2 794 (a) (7)" (p. 5):
c) The names "are...necessary to a proper decision ~
of this proceeding" (p. 7) and
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d) "by its very nature, the infor=ation can only i
be obtainable from the Sta'f" (p. 7).
Zio other findings are required by 52 7M prior to entering an order to produce.
4.
Finally, the h?C Staff assigns as error the ASL3 failure to make an "in camera" inspection prior to making its 32 72 findings.
This exception overlooks that 92 7 4 (c) requires rroduction of documents for in camera inspection L
only "if requested by the presiding of"icers."
It was not l
l an abuse of discretion for the ASL3 to decline to exercise this option to inspect because an inspection was unnecessa~/
t to resolve the question before the ASL3.
The PRC Staff attempts to erect as " essential" to the ASL3's order the l
co=nent therein that "it is important to knew whether the i
l individuals who allegedly reported harrassment to the intervenors are the same as those who allegedly reported it to the Staff" (p. 7).
In fact this cc==ent is not essential to a dete.~ination on whether the names of such individuals
should b3 releaccd to CCAMP.
It is important for CCAMP to know all of the persons who gave information to the h7C - and what infomation they gave - irrespective of whether CCANP has obtained the names of these persons from another source.
The fact of cooperation and the possibility of specific new information in the possession of individuals will be important in further developing the evidence these persons might be prepared to give before the ASLB.
The MRC's policy concems motivating this appeal have been set forth in its " Motion for Direct Certification Pursuant to 10 CFR E2 785 (d)."
Aside from the NRC's view that the information is unnecessary to CC/JiP's case for, among other reasons " Applicant's admission that such instances probably did occur" (id. p. 6 cf.11 UR (284)), the premise for :!RC's appeal is its view that its confidentiality interests cannot be adequately protected if the requested information is released to intervenors under a protective order (p. 5 & notes).
In light of the record in this proceeding and the r?C's investigatory findings such concerns would be amply justified in the context of release of this information to the Anolicants.
But the intervenors have not the means, the motivation nor the past history of harrassing witnesses who have cooperated with the l
NRC in reporting safety and other violations to justify such doubts.
The intervenor's struggle to secure the confidentiality of =any of these same or similar witnesses shows the parallel interests shared by intervenors and NRC in protecting such witnesses.
The intervenors, at the urging of the NRC, were ordered to reveal their own confidential witnesses names under a i
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protective order.
The NRC at that time considered a protective order adequate protection of intervenors' interests in confidentiality.
T. NRC now rejects the adequacy of a protective order when app *. led to'its own confidentiality concerns.
But the
'C cannot have it both ways.
The Appeals Board in Allens Creek, 9NRC 377'(1979) stated "this commission and its adjudicatory boards have always proceeded on the assumption that the terms of all protective orders will be scrupulously observed by everyone who acquire _s confidential information under such an order" (.i_d. at 400).
The NRC's challenge to that assumption in this appeal, if not simply untenable, is at least raised too late in this proceeding to do equity between the intervenors and the FEC.
Having sought the names of intervenor's confidential witnesses under a protective order, and having delayed this appeal until those names were obtained, the ?RC should be foreclosed from questioning the adequacy of a protective order to protect its own confidential witnesses.
CONCLUSION For all of the above reasons permission for the ?:RC's interlocutory appeal should be denied.
In the interests of expedition CCAMP does not otherwise oppose direct certification.
If the necessary permission for this interlocutory appeal is not denied. CCA'!P's cross-appeal l
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noticed'herein should be granted and an expedited briefing schedule should be fixed.
Respectfully submitted for Citizens Concerned About
?;uclear Power, Inc. and Citizens for Equitable Utilities.
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Pat Coy g
Robert Hager, Esq., of counsel April 13, 1981 i
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CERTIFICATE OF SERV 7CE
__ hereby ify that the foregoing OPPOSITION TO NRC'S
" NOTICE' AND LIST OF EXCEPTIONS" AND CROSS APPEAL-MARCH 24,7'i has been served on the following individuals '
and entities by deposit in the U.S. Mail, first class, postage prepaid on this 13th day of Apri 1981.
bY /-
Pat Coy J'
Richard S. Sal: man Charles Bechhoefer, Esquire Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissic Washington, D.C. 20555 washington, D.C. 20555 Dr. John H. Buck Dr. James C. Lamb Member 313 Woodhaven Road Atomic Safety and Licensing Chapel Hill, North Carolina 2751h Appeal Board U.S. Nuclear Regulatory Ccmmission Mr. Ernest E. Hill Washington, D.C. 20555 Lawrence Livermore Laboratory University of California Michael C. Farrar, Esquire Livermore, California 94550
!aember Atomic Safety and Licensing Edwin J. Reis Appeal Board Office of the Executive Legal U.S. Iiuclear Regulatory Commission Director Washington, D.C. 20555 U.S. ::uelear Regulatory Commissio:
Washington, D.C. 20555 Atomic Safety and Licensing Appeal Panel (5)
Erlan E. se: wick U.S. Nuclear Regulatory Commission Assistant Attorney General for Washington, D.C. 20036 the State of Texas P.O. Box 12548, Capitol Station Thomas E. Hudson, Jr., Esquire.
Austin, Texas 78711 3aker and Botts 3000 One Shell Plaza Mrs. Peggy 3uchorn Houston, Texas 77002 Route 1, 3ox ~.684 Brazoria, Ten s 77422 Docketing and Service Section (7)
Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safe ty and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555