ML19350D013
| ML19350D013 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 04/09/1981 |
| From: | Gutierrez J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8104130079 | |
| Download: ML19350D013 (27) | |
Text
POOR ORIGINAL l
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ft11SSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-498 HOUSTO'l LIGHTING & POWER COMPANY 50-499 ET AL.
(South Texas Project, Units 1 & 2)
)
NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS' TWO APPEALS FILED MARCH 25, 1981 D
e 6
C-III'g i't$!$"i'jf d\\@/
-Jay M. Gutierrez
(
67 Counsel for NRC Staff n
April 9, 1981
-810.4130M4 g
i TABLE OF CONTENTS
~
Page e.
I.
INTRODUCTION......................
1 II. STATEMENT OF CASE 2
A.
PROCEDURAL BACKGROUND OF INTERVENORS' REQUEST FOR A HINETY-DAY EXTENSION.............
S B.
Pr.0CEDURAL BACKGROUND TO INTERVENORS' REQUEST FOR SEPARATE HEARING AND DECISION ON BOARD ISSUE A...
6 III.
DISCUSSION,......................
10 A.
PREHEARING CONFERENCE ORDERS ARE INTERLOCUTORY AND CONSEQUENTLY NOT APPEALABLE 10 1.
Scheduling Matters are Interlocutory and not Appealable...................
10 ii.
Rulings Relative to Contentions and Issues...
12 B.
THE INTERVEN0RS HAVE FAILED TO MAKE THE REQUISITE SHOWING 0F EXCEPTIONAL CIRCUMSTANCES WARRANTING THIS BOARD IN EXERCISING DISCRETIONARY REVIEW OF EITHER INTERLOCUTORY RULING................
15 C.
THE INTERVENORS HAVE FAILED TO MAKE THE REQUISITE SHOWING IN ORDER FOR THIS BOARD TO CERTIFY THEIR MOTION RELATIVE TO ISSUE A T0 THE COMMISSION....
17 D.
INTERVENORS HAVE FAILED TO FOLLOW THE PROCEDURES ESTABLISHED IN 10 C.F.R. Q 2.752(c) AND ACCORDINGLY SHOULD BE DENIED THE RELIEF REQUESTED 20 IV. CONCLUSION 21
11 TABLE OF CITATIONS Page NR_C CASES C_arolina Power and Light Company (Shearon Harris Nuclear Puser Plant, Units 1, 2, 3 & 4), LLI-80-12,11 NRC 514, 516-17 (1980)...........................
18,19 Consumers Power Company (liidland Plant, Units 1 and 2), ALAB-468, 7 t4RC 465, 468 (1978).......................
11 Consolidated Edison Company of New York, Inc. (Indian Point Nuclear Gener ating Station, Units 1, 2 and 3), ALAB-319, 3 NRC 188, 193 (1976)..........................
13,16 Consolidated Edison Company of New York, Inc. (Indian Point, Units 1, 2 and 3), ALAB-377, 5 NRC 430, 431 (1977) 16 Gulf States Utilities Compat,y (River Bend Station, Units 1 and 2),
4 ALA3-329, 3 NRC 607 (1976) 13,14 Houstoa Lighting and Power' Company (South Texas Project, Units 1 and 2), CLI-80-32, 12 NRC 281 (1980) 2,9 HoustonLightingandPowerCompany(AllensCreekfererating Station, Unit 1), ALAR-585, 11 NRC 469 (1980)..
- 13 Florida Power and Light Company (St. Lucie Nuclear Power Plant, Uni t No. 2) ALAB-553,10 NRC 12,14 (1979)............
19 Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALA3-130, 6 AEC 423, 424 (1973)..........
10 Niagara ithawk Power Company (Nine tiile Point, Unit 2), CLI-73-28, 6 AEC 995 (1973) 18 Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),'ALAB-419, 6 NRC 3, 6 (1977) 13 Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plant), LBP-75-67, 2 NRC 813 (1975).............
12 Pacific Gas and Electric (Diablo Canyon Nucler Power Plant, Units 1
& 2), CLI-81-5, 13 NRC (slip op. p. 2, and 1, p. 5, April 1, 1981)...............................
18 Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-277,1 NRC 539, 554 (1975) 13
iii Page Public Service Company of Indiana (Marble Hill, Units 1 and 2),
ALAB-405, 5 4RC 1190, 1192 (197 7).................
15 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179,188 (1978) 11 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-293, 2 NRC 660 (1975) 11 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-295, 2 HRC 663 (1975) 11 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516-517 (1977)............
18 Puget Sound Power and Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 694 (1979).....
15 Texas Utilities Generating Company, et. al. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-599,12 NRC 1 (1980)....
13 United States Energy Research and Develcpment Administration (Clinen River Brcader Reactor Plant), CL1-76-13, 4 NRC 67, 75-76, (1976) 18 STATUTES OR REGULATIONS 5 U.S.C. 9 556(c) 11 10 C.F.R. 9 2.201.........................
8 10 C.F.R. 9 2.206.........................
7 10 C.F.R. 9 2.714a 14,17 10 C.F.R. 9 2.718.........................
10,11,13 14,17,20 10 C.F.R. 9 2.730(f) 17,18 10 C. F. R. 9 2. 7 52........................
2,10,19,20 10 C.F.R. 9 2.760a 13 10 C.F.R. 9 2.785(d) 17,19
A UNITED STATES OF A!! ERICA NUCLEAR REGULATORY COM:11SSION
~
BEFORE THE AT0!4IC SAFETY AND LICENSING APPEAL BOARD In the Matter of HOUSTON LIGHTING & POWER COMPANi
)
50-499 (South Texas Project, Units 1 & 2) )
flRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS' Tl10 APPEALS FILED f1 ARCH 25, 1981 I.
INTRODUCTION This natter is currently before the Appeal Board by reason of the Licensing Board's denial of two notions jointly filed by Citizens Concerned About nuc~ie;" Power (CCANP) and Citizens for Equitable Utilities (CEU) (hereinafter jointly referred to as Intervenors).
In the first of the two pleadings, Intervenors appeal the Licensing Board's denial of their request for a 90-day extension of all prehearing deadlines and a continuance of the beginning of the operating license hearing in this natter froin fiay 4,1981, to August 3,1981.E By a second pleading filed on the sane date, Intervenors appeal the Board's denial of their notion to hold a separate hearing and render a decision on Board Issue A before proceeding to Issues B through F.E y
See, Third Prehearing Conference Order (Including Sucinaries of
~
Subsequent Telephone Conference Calls) dated April 1,1981, pp. 3-4 y
_I_d,., pp. 8-11.
d i
)
, At the onset, it should be stated that.the NRC Staff opposes both -
appeals on prxedural, as well as substantive grounds.
Procedurally, the challenged rulings are interlocutory and consequently not proper orders for this Appeal Panel to review. Although it is acknowledged by the Staff that upon a proper showing of exceptional circumstances, this Appeal Panel could exercise its authority to grant discretionary review of an interlocutory order, it is tha Staff's position that such extraordinary circumstances are not presented by either of the two appeals currently before this Appeal Panel.
In addition, a separate procedural defect exists in the fact that Intervenors have not followed the procedures prescribed by 10 C.F.R. % 2.752(c) for challenging prehearing conference orders. Substantively, it is the Staff's position that the Licensing Board did not abuse its discretion in ruling upon the two challenged natters; but to the contrary, the questioned rulings are supported by the record.
II.
STATEtiENT OF THE CASE By Commission order, dated September 22, 1980, the Licensing Board was directed to consider issues relative to Houston Lighting & Power's (HL&P) technical competence and character during an expedited hearing on quality assurance / quality control (QA/QC) issues and to render an early and separate decision on those aspects relative to an operating license.E This accelerated hearing was first suggested by the Licensing Board to all parties in a memorandum of tiarch 10, 1980, in response to y
Houston Lighting & Power' Company (South Texas Project, Units 1 and
- 2) CL1-80-32,12 HRC 281, 291-92 (1980).
concerns generated by Intervenors' Contentions 1 and 2.b In addition, the Commission, due to certain findings reached in an NRC escalated o
inspection conducted between November 1979 and February 1980,5./ agreed with the Licensing Board that an expedited hearing is appropriate in this operating license proceeding on quality control related issues.
In the Conmission order, the Board was directed to look not only at the specific charges in I&E Report 79-19 and in Intervenors' Contentions 1 and 2, but to look at the broader ramifications of these charges in order to determine whether, if proved, they should result in denial of the operating license application.E For this reason, the Board was ordered
-to issue an early and separate decision on this aspect of the operating license proceeding.
In an attempt to implement the Commission's broad instructions, a prehearing conference in the case was held November 19, 1980, aimed at-having the parties fonnulate the precise issues and contentions to be the subject of the expedited hearing. This prehearing conference resulted in a Board order dated December 2,1980, wherein the issues of the expedited portion of the operating license proceeding were articulatedU and a 4_/
See, Atomic Safety and Licensing Board, Menorandum, March 10, 1980, wherein it is suggested that an early hearing be held on issues relating to asserted construction and QA/QC deficiencies in the fall of 1980 or winter of 1980-81.
~
y See, Inspection and Enforcement Report 50-498/79-19, 50-499/79-19, dated April 30, 1980.
Gf 12 NRC at 291-92.
7/
Issues A and B are the' relevant issues for purposes of this appeal.
These issues state:
(Continued)
i 1 schedule was established for discovery, other prehearing natters and the commencement of the evidentiary hearing.8/ The two rulings currently challenged were first contained in the prehearing order of December 2, 7f (Continued)
Issue A.
If viewed without regard to the remedial steps taken by HL&P, would the record of HL&P's compliance wi+.h NRC requirements including:
(1) the statenents in the FSAR referred to in Section V.A.(10) of the Order to Show Cause; (2) the instances of non-compliance set forth in the Notice of Violation and the Order to Show Cause; (3) the extent to which HL&P abidcated responsibility for construction of the douth Texas Project (STP) to Brown & Root; and (4) the extent to which HL&P failed to keep itself knowledgeable about necessary construction activities at STP, be sufficient to determine that HL&P does not have the necessary managerial competence or character to be granted licenses to operate the STP?
Issue B.
Has HL&P taken sufficient renedial steps to provide assurance that it now has the managerial competence an.d character to operate STP safely?
In addition, the hearing scheduled to begin May 12, 1981, will address Board Issues C through F and Intervenor Contentions 1 and 2.
8/
Essentially, the schedule provided the following dates for prehearing natters: January 16, 1981, last date for Applicant or Staff to file discovery; February 2,1981, last date for Intervenors to file discovery; February 16, 1981, issuance of SER on QA/QC issues (By letter dated January 26, 1981, the Staff informed the Board that the SER has been delayed until early April); March 2, i
1981, identification of witnesses and substance of their testimony l
by all parties; March 16, 1981, prehearing conference; Aprii 1, 1981, last date to depose witnesses; April 15, 1981, filing of written testimony; May 4,1981, connencement of evidentiary hearings.
1980, and the procedural background of each of these rulings will presently be addressed.
A.
PROCEDURAL BACKGROUND 0F INTERVEN0RS' REQUEST FOR A NINETY-DAY EXTENSION On fiarch 9,1981, the Staff received a pleading fron Intervenor CEO requesting the Board to consider an alteration of the schedule.
On March 12, 1981, the Staff received a separate pleading fron Intervenor CCANP joining CEU in its motion proposing a schedule alteration.
In essence, the Intervenors requested all prehearing dates be continued for three nonths and that tha evidentiary hearing not begin until August 3, 1981, rather than May 4,1981, as planned.
These pleadings were filed despite a caveat contained in the Board's December 2, 1980, prehearing order which stated:
In view of the Commission's enphasis upon an expedited hearing, we expect the parties to adhere to the foregoing schedule as closely as possible.
Modifications will not be granted absent a strong showing of good cause.
CEU assigned as a reason warranting a three-month postponement in the hearing schedule the 30-day hospitalization of its executive director, Mrs. Peggy Buchorn.9l In addition, CCANP, in joining CEO in its notion, assigned as an additional ground justifying a three-nonth slip in the hearing schedule the recent withdrawal of its counsel, Betty Wheeler,Esq.E The Staff opposed this motion by a filing dated 9/
CEU's pleading stated its Executive Director, firs. Peggy Buchorn, returned to her duties on February 25, 1981.
1_0/ tis. Wheeler had been counsel to CCANP for the period beginning just prior to the November 19, 1980, prehearing conference until some time at the end of February 1981.
I
-- i--- - -- +
,m..-
March 16, 1981, concluding the reasons given by the Intervenors did not constitute "a strong showing of good cause" contemplated by the Board's December 2,1980, Prehearing Conference Order warranting nodification of the hearing schedule. The Licensing Board, after hearing extensive discussion on the subject during the flarch 17, 1981, prehearing conference (Tr. 356-389) and further taking into account the expedited hearing anticipated by the Commission, denied the Intervenors' proposed schedule alteration and adopted in its Third Prehearing Conference Order a hearing sch.adule beginning the week of May 12, 1981 (sec Order, p. 4).
Through the current appeal, the Intervenors press their nation for an extension of time contending that; (1) good cause was shown for a substantial extension; (2) the Board relief of a one-week delay in the start of hearings is inadequate; (3) the Board's relief adversely impacts upon the goal of a complete record in the initial hearing by restricting the ability of Intervenors to prepare for and participate in the hearing; (4) the Board's decision placed too much emphasis on room arrangenents and personal scheduling conflicts; and lastly, considering the short time remaining until the date set for the initial hearing asks this Panel for an expeditious resolution of this matter.
The Staff opposes this appeal both procedurally and substantively for the reasons hereinafter set forth.
B.
PROCEDURAL BACKGROUf1D TO INTERVENORS' REQUEST FOR
~
SEPARATE HEARING AND DECISION ON BOARD ISSUE A The second appeal currently before this Appeal Board stems from a j
disagreement among the parties with respect to the proper reading of the Commission's September 22, 1980 Order and the scope contemplated by the Commission of the hearing scheduled to begin May 12, 1981.
The Intervenors seeks to_ restrict the scope of the scheduled hearing by J-pressing their interpretation of the Commission's September 22, 1980, Order.
Intervenors contend that the purpose of the Septenber 22, 1980 NRC Menorandum and Order was to provide then alternative relief to either a public hearing on the Order to Show Cause or a potential Petition to revoke HL&P's construction permit under 10 C.F.R. Q 2.206.
The Intervenors interpret the relief afforded then by the Comnission to be a separate determination by the ASLB on the issue whether the past '
noncompliances by HL&P showed it lacks the character and technical competence to receive an operating license.
(p. 6 of Exhibit 1 to Intervenors' appeal). As the issues are currently franed, the Intervenors would have the Licensing Board render a separate decision on Issue A prior to continuing evidentiary hearings relative to Issues B through F.
In contrast, the Licensing Board, Staff and Applicant have taken a position that the Board in keeping with NRC practice, and the specific Commission directive to look at the broader ranifications of the various charges, should consider the totality of HL&P's conduct, including any corrective action taken or proposed by HL&P in response to the Show Cause Order during the upcoming hearings. Of course, the Board acknowledges that if it concludes that the prior noncompliances of HL&P are uncorrectable this finding would be sufficient to deny a license (Board Order, p. 9).
In its Final Prehearing Conference Order, the Board properly assigned the following groun~ds in justifying its denial of Intervenors' motion:
1.
The Commission stated that abdication of responsibility or knowledge "could" fom a basis for denying a license; it did not say that such abdication "must" fom such a basis. The Board believes that the basis would be sufficient for denying a license only if it were also shown that the considerations giving rise to it are uncorrectable.
2.
We also do not interpret the Commission's decision as mandating two separate decisions on QA/QC matters.
For the early decision on QA/QC matters, the Board will take evidence on all the issues outlined in the December 2, 1980 Order.
If we were to find that the evidence on Issue A produced an af firmative answer--i_.e., the record of compliance leading to the show-cause order is sufficient to deny operating licenses--and the deficiencies are not correctable, we might then decline to decide the remaining issues (even though we would have taken evidence on them). But if we found that the past deficiencies are correctable, we would additionally, as a predicate to an operating license, have to consider Issue B and determine whether the deficiencies have in fact been corrected.
We would also have to consider and rule on the other issues which were identified by our December 2, 1980 Order.
3.
In addition, the Board views the operating license procedures of the Commission as contemplating that an applicant demonstrate compliance with various requirements in order to obtain an operating license; and that, if deficiencies are uncovered, the applicant be permitted to demonstrate that the deficiencies have been corrected. This process has been followed in all operating license proceedings of which we are aware.
In addition, the opportunity for a licensee to demonstrate that deficiencies or violations giving rise to a show-cause order have in fact been corrected or remedied is mandated under the Commission's show-cause procedures.
10 C.F.R. 5 2.201.
In our opinion, comparable procedures should be followed in this particular proceeding.
(Third Prehearing Conference Order, pp. 9-11).
The Staff is in total accord with the Board's interpretation of the Commission's Order on this point.
The Commission's September 22, 1980, Order must be read in the light of the Licensing Board memorandum of !! arch 10, 1980.
In this Licensing
9-Board nemorandua, the Board solicited the parties positions on the merits of holding a partial operating license hearing relative to asserted construction and QA/QC deficiencies. At that time, hearings relative to an operating license were not scheduled to bt gin until the winter of 1982-83. Honetheless, in light of the fact that Intervenors' Contentions'1 and 2 went to the heart of whether the South Texas facility was constructed safety, the Licensing Board suggested that an expedited hearing be held in the fall of 1980 or winter of 1980-81 to address the asserted construction and QA/QC deficiencies.
The Commission in its September 22, 1980, Order agreed that the Licer. sing Board should hold such an expedited hearing and should, in addition to the natters already anticipated by the Board for consideration, address issues relating to HL&P's technical competence and character which had been more recently called into question by the findings of I&E Report 79-19.
The Comnission stated:
Accordingly, we agree that the Licensing Board in the operating license proceeding should proceed with its expedited hearing on the quality control-related issues (including the allegations of false statements in the FSAR). As the Board has already determined to proceed in this manner, no formal order is necessary.
However, we expect the Board to look at the broader ramifications of these hearings in order to determine whether, if proved, they should result in denial of the operating license application. For this reason, we are ordering the Board to issue an early and separate decision on this aspect of the operating license proceeding.
12 NRC at 291-92.
e M
. III.
DISCUSSION A.
PREHEARING CONFERENCE ORDERS ARE INTERLOCUTORY AND CONSEQUENTLY NOT APPEALABLE The two challenged rulings are set forth in the Licensing Board's Third Prehearing Conference Order of April 1, 1981. Such orders are interlocutory in nature and consequently not appealable.
Pursuant to 10 C.F.R. % 2.752(c) any party aggrieved by a ruling contained in a prehearing conference order should file objections to that order within 5 days after service to the Licensing Board rendering the order. The Licensing Board in turn may either revise the order in light of the objections presented or, as permitted by 10 C.F.R. % 2.718(i), nay certify the objection for determination to the Commission or Appeal Beard, as it deeas appropriate.
In the instant case, the Licensing Board has already declined to certify the notion requesting a separate hearing on Board Issue A.
(Third Prehearing Conference Order, p.11).
Although prehearing conference orders are generally not reviewable, exceptions are made for rulings contained in such orders which wnuld otherwise be appealable. g. ftississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973).
Thus, the question becomes whether rulings concerning scheduling natters or the scope of issues to be decided at hearing are rulings which would otherwise be appealable.
1.
Scneduling Matters are Interlocutory and not Appealable.
As a general rule, scheduling is a matter of Licensing Board discretion and consequently appeal boards are disinclined to interfere with scheduling decisions absent a "truly exceptional situation" which
_ warrants appeal board interlocutory consideration.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-295, 2 NRC 668 (1975); Publi_c Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-293, 2 NRC 660 (1975). This reluctance is only logical in light of the fact that the responsibility for conducting hearings rests with the presiding officer of the Licensing Board, pursuant to 5 U.S.C. s 556(c) and 10 C.F.R. 6 2.718.
Only where there is a claim that such scheduling rulings constituted an abuse of discretion and amounted to a denial of procedural due process to the aggrieved party is review proper.
Public Service Company of Indiana, Inc. (fiarble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179,188 (1978); Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-468, 7 NRC 465, 468 (1978).
As to the current appeal, the Intervenors have made no showing that the Board's scheduling decision deprived them of procedural due process.
Intervenors' Contentions 1 and 2 have been accepted by the Licensing Board since September of 1979 and since then the Intervenors have been free to develop witnesses and evidence relevant to these Contentions.
Similarly, regardless of the recent hardships suffered by CEU by Ms. Buchorn's thirty-day absence due to hospitalization, or by CCANP by loss of counsel, the Intervenors will have had almost 10 weeks to cure such hardships and prepare for the May hearings.
In its Petition for Leave to Intervene, CEV represented to the Licensing Board that it had "a constituency throughout the state of many thousands, and specifically somewhat over 5,000 persons in the ' area of interest', more than half of whom live within a 30-mile radius of STP."E It is the Staff view that ar illness of one of-CEU's members, albeit a key member, does not justify postponing the entire hearing process for three months.
Similarly, the Staff feels the withdrawal of CCANP's retained counsel does not constitute a " strong showing of good cause, warranting modification of the hearing schedule.1_2/ In any event, neither occurrence coupled with the Board's denial of Intervenors' 90-day continuance request deprives these parties of procedural due process.
In fact, the Intervenors make no claim that they were denied procedural due process.
Instead, they request this Appeal Board to reevaluate the considerations which went into the Licensing Board's decision denying the Intervenors' request for a 90-day extension.
Certainly, this is not the function of the Appeal Board.
The Appeal Board simply must perform the more narrow review to determine whether the Intervenors will be denied procedural due process in light of the Board's denial of their 90-day extension request.
For the reasons stated above, the Staff is of the position that no such claim or finding can reasonably be made.
ii. Rulings Relative to Contentions and Issues.
What the Intervenors' second appeal attempts to do is regulate the time and canner in which the Licensing Board addresses the various issues 11/ CEU's Petition For Leave to intervene, filed February 23, 1979.
1
_.12/ In this regard, see, Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants) LBP-75-67, 2 NRC 813, 816 (1975) wherein it was stated that the fact that a party has failed to retain counsel in a timely manner is not grounds for seeking a delay.
So too, the Staff reasons, the fact that a party's retained counsel withdraws in an untimely manner is not per se sufficient grounds for granting a delay. This is especially so in the accelerated procedural context of the instant case.
t which must properly be considered in an operating license hearing. The Judgment of a licensing board with regard to what is or is not in controversy in a proceeding being conducted by it is entitled to great respect. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-419, 6 NRC 3, 6 (1977).
In keeping with this discretion, a Licensing Board may, on its own motion, explore issues which the parties themselves have not placed in controversy. Consolidated Edison Company of New York, Inc. (Indian Point Nuclear Generating Station, Units 1, 2 and 3), ALAB-319, 3 NRC 188,190 (1976); g. 10 C.F.R. Q 2.760a. Relying upon a licensing board's general power under 10 C.F.R. % 2.718 such boards have the authority to consider, either on their own or at a party's request, a particular issue separately from and prior to other issues that must be decided in a proceeding. Potomac Electric Poyar Company (Douglas Point Nuclear Generating Station, Units 1 and P, ALAB-277,1 NRC 539, 544 (1975).
f The Intervenors seek to do that which the Appeal Board has recently said is procedurally improper.
In Texas Utilities Generating Company, et al. (Conanche Peak Steam Electric Station, Units 1 and 2), ALAB-599, 12 NRC 1 (1980), Citizens Association for Sound Energy (CASE) sought to appeal that part of the Licensing Board's Prehearing Conference Order which rejected several of the contentions CASE wished to litigate. The Appeal Board sumnarily dismissed the appeal af. tempt as unauthorized by the Commission's Rules of Practice.
12 NRC at 2; citing, Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-585, 11 NRC 469 (1980); Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALAB-329, 3 NRC 607, 610 (1976). Only if an order has the effect of denying a petition to intervene entirely, as distinguished from decisions on _particular contentions, it is appealable.
~
River Bend, supra; 10 C.F.R. 5 2.714a.
In the exercise of tht Board's discretion, and in its attempt to implement the Cornission's directions of September 22, 1980, the Licensing Board fashioned Issues A through F for consideration during the expedited partial operating license proceeding it had previously anticipated conducting.
The'Intervenors' concerns are incorporated in Board Issue A.
Nonetheless, the Intervenors press their version of the order in which these issues should be decided by the Licensing Board.
Absent an abuse of discretion, it is the Licensing Board's duty to regulate the course of the hearing.
10 C.F.R. 5 2.718. The Intervenors' pleading can only be read as complaining that too much will be decided during the evidentiary hearings scheduled to begin May 12, 1981.
At no point in their pleadings do they articulate how they will.be prejudiced.
All parties are in agreement that if the Licensing Board concludes in regard to Issue A that the state of construction at the South Texas Project was such, prior to the show cause remedial action, that corrective action could not remedy the defects, no license should issue.
Accordingly, in light of the broad discretion vested in the Licensing Board relative to the management of the hearing process, and further, the failure of the Intervenors to articulate in what way they will be harmed by a hearing addressing more than their specific concerns, the Staff is of the position that this interlocutory ruling does not nerit review by this Appeal Board.
i B.
THE INTERVENORS HAVE FAILED TO !!AKE THE REQUISITE SHOWING 0F EXCEPTIONAL CIRCUMSTANCES WARRANTING THIS BOARD IN EXERCISING DISCRETIONARY REVIEW 0F EITHER INTERLOCUTORY RULING _
Commission practice permits discretionary review of interlocutory licensing board rulings under certain narrow circunstances. The standard which appeal boards apply to request for discretionary review of
-interlocutory orders is a simple one:
Alaost 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 inmediate and serious irreparable inpact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
Public Service Company of Indiana (Marble Hill, Units 1 and 2),
ALAB-405, 5 NRC 1190,1192 (1977).
Puget Sound Power and Light Company, et al. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572,10 NRC 693, 694 (1979).
See 10 NRC at 695, fn. 5, for a discussion of those cases where discretionary review of
. interlocutory board orders has been granted.
By the Licensing Board's denial of the Intervenors' request for a 90-day extension, it is difficult to imagine how they will suffer immediate and serious irreparable harm.
All parties have known of the current hearing schedule since liarch 17, 1980, and accordingly will have had almost 8 weeks to prepare prior to the March 12, 1981 hearing. All issues to be tried during the May hearing have been known by all parties since December 2, 1980. Thus, the Intervenors have had this additional time to choose witnesses and prepare testimony relative to specific issues.
As pointed out in Consolidated Edison Company of New York, Inc.
~
(Indian Point, Unite 1, 2 and 3), ALAB-377, 5 NRC 430, 431 (1977):
[A] party cust lodge pronptly any objection it has to a board's scheduling of the prehearing phase of the proceeding; it cannot wait until testimony is due, and the iiearing is imminent, to request that the procedure be changed.
This is the precise procedural dilermia the Staff currently faces. If the Appeal Board were to entertain the Intervenors' current appeals, the
' Staff and Applicant would seen to suffer immediate hara in the preparation of their case, rather than Interv3nors.
The Intervenors have never offered an explanation as to their inability to prepare for hearing from the beginning of March 1980.
Secondly, the scheduling ruling in no way affects the structure of the proceeding in a basic and unusual nanner.
As early as March 10, 1980, the Licensing Board put all parties on notice that it was anticipating an expedited operating license hearing relative to certain QA/QC issues.
In September of 1980 the Comaission reinforced the Board's earlier indication relative to an expedited hearing, and finally, the November pretrial hearing crystalized the expedited phase by establishing firm dates. Accordingly, all parties have had ample notice and tine to adequately prepare for this expedited phase.
Similarly, the Licensing Board's denial of the Intervenors' request to hold a separate hearing on Board Issue A and to render an independent decision on that issue in no way affects the Intervenors in an immediate and serious irreparable manner.
Nor does the challenged ruling affect the structure of the procee' ding in a basic and unusual nanner.
The concerns expressed by the Commission order of Septenber 22, 1980, ara contained in, inter alia, Board Issue A.
The Applicant bears the burden to satisfy the Board that HL&P has the requisite technical competence and character to be issued an operating license and the Intervenors will be given every opportunity to cross-examine the Applicant's witnesses. The Intervonors seek appellate review of the purely procedural matter of what issues will be heard when.
This is not an appealable issue, such as a Board's denial of a party's petition to intervene.
See, 10 C.F.R.
% 2.714a.
Intervenors never address the standard set forth above relative to when discretionary review of interlocutory rulings is proper and it is asserted by the Staff in light of the above, if they had, this Appeal Board could only conclude that such exceptional circunstances are not present in the instant case.
C.
THE INTERVENORS HAVE FAILED T0 ftAKE THE REQUISITE SHOWING IN ORDER FOR THIS BOARD TO CERTIFY THEIR MOTION RELATIVE TO ISSUE A TO THE COMillSSION In the alternative to this Appeal Board reviewing how Issue A should 4
be addressed during the licensing proceeding, the Intervenors ask, pursuant to 10 C.F.R. % 2.718(i) that the Board certify to the Cocnission whether it intended to afford the Intervenors a separate hearing and decision on Issue A.
10 C.F.R. % 2.785(d) grants to the Appeal Board the discretion to certify questions to the Commission where there are major or novel questions of law, policy or procedure.
In the instant proceeding, the Licensing Board has already declined to certify the question to the Commission or the Appeal Board.
(Third Prehearing Conference Order, p. 11).
In its ruling, the Licensing Board noted 10 C.F.R. Q 2.730(f) which again grants the presiding officer the discretion to refer a ruling pronptly for appellate determination when in the I
judgment of the presiding officer a pronpt decision is necessary to prevent detriment to the public interest or unusual delay or expense.
As
~
aptly stated by the Licensing Board in its Third Prehearing Conference Order "no persuasive reason was advanced for making an exception to the Commission's usual role barring interlocutory review.
10 C.F.R.
s 2.730(f). Our Partial Initial Decision on QA/QC~ matters will be reviewable by the Appeal Board, and eventually by the Commission; and it should be reviewed long before any decision we might issue on other operating license issues."
In United States Energy Research and Development Administration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 75-76 (1976),
the Commission, dealing with its authority to review Licensing Board determinations before Appeal Board review of the merits of a matter, stated "in the interest of orderly resolution of disputes there is every reason why the Commission should be empowered to step into and provide guidance on important issues of law and policy." See also, Public Service Company of New Hampshire (Seabrook Station, U1its 1 & 2),
CLI-77-8, 5 NRC 503, 516-517 (1977); Niagara flohawk Power Company (Nine Mile Point, Unit 2), CLI-73-28, 6 AEC 995 (1973); Carolina Light and Power Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4),
CLI-80-12, 11 NRC 514, 516-517 (1980); c_f_. Pacific Gas and Electric (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-81-5,13 NP,C (slip op. p. 2, and 1, p. 5, April 1, 1931).
Further, it has been recognized by the Comission that where policy or practices of widespread importance are involved, appeal boards should certify such a question to the Commission for resolution.
Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), CLI-80-12, 11 NRC 514, 516-17 (1980); Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553,10 NRC 12,14 (1979).
It is the Staff's position, that whether the Licensing Board hears Issue A in a separate hearing and renders a decision thereon before proceeding to Issues B through F, or whether this same Board hears all issues in the course of a single proceeding, does not constitute a ruling of such widespread policy or practice to justify certification of the question to the Conoission. This is specially so, in light of the fact that the Licensing Board failed to see any justification why the instant-notion should be certified to the Appeal Board.
Intervenors have not set forth reasons why the Licensing Board's ruling relative to the manner in which Issue A presents a major or novel question of p'licy, law or procedure.
10 C.F.R 6 2.785(d).
It is the Staff's view that the public interest would best be served by hearing all issues relative to QA/QC natters.
In light of the fact that the Intervenors will be given an opportunity to cross-examine all Applicant and Staff witnesses on each of the issues to be litigated, the Staff is dt a loss to find where Intervenors will be prejudiced.
In addition, Intervenors, along with all other parties, will be given an opportunity to address evidence exclusively relevant to Issue A in their proposed finding of facts.
__ __ D.
INTERVEN0RS HAVE FAILED TO FOLLOW THE PROCEDURES ESTABLISHED
~
IN 10 C.F.R. 6 2.752(c) AND ACCORDINGLY SHOULD BE DENIED THE RELIEF REQUESTED The rulings Intervenors currently seek this Appeal Panel to review were rulings contained in both the Board's Prehearing Conference Orders of Deceaber 2,1980 and April 1,1981.
Under 10 C.F.R. 9 2.752(c), any obje: tion to what is contained in a prehearing conference order may be filed witnin five days after service of that order with the licensing board.
No party appeal rights are provided for in the rules; hosever,
. the Board may certify to the Conaission pursuant to 10 C.F.R 6 2.718(i).
The Board's ruling in regard to Issue A was fin, and final as of December 2, 1980.
It was not until March 16, 1980, that the Intervenors objected to this Order and sought a restructuring of the issues to be litigated.
This objection was extremely untimely and it was the Staff's position at the March 17, 1981, prehearing conference, as it is now, that the Licensing Board never should have considered the nerits of the Intervenors' objection.
In reliance upon the Board's December 2, 1980, statement of the issues, the Staff has gathered, reviewed and organized information in anticipation of presenting voluminous testinony relative to the issues as framed. As of the date of this appeal, the Staff has prepared approximately 200 pages of testinony relative to the issues as articulated in the Board's December 2, 1980, Order.
In addition, almost 100 exhibits totaling more than 1,000 pages have been compiled in connection with that testimony.
For tais Appeal Board to now entertain Intervenors' Motion to Refo.raulate Issues is contrary to both the Conmission's Rules of Practice and the general philosophy of permitting
7 1
21 -
the presiding officer to regulate the orderly presentation of issues and the conduct of parties.
IV. CONCLUSION For the reasons set forth herein above, the Staff respectfully requesi,s the Appeal Board to deny review of the challenged Board rulings and further deny certification of the Board ruling concerning Issue A to the Commission.
In the alternative, if this Appeal Board entertains the Intervenors' appeals, the Staff. respectfully requests the rulings of the Licensing Board be affirmed as being supported by the record.
Respectfully submitted, Jay ti. Gutierrez Counsel for NRC Staff Dated at Bethesda, Maryland, this 9th day of March, 1981.
4 o
~=-
UllITED STATES OF AMERICA IlVCLEAR REGULATORY-C0.iMISS10N BEFORE THE ATOMIC SAFETY AND LICEiEING APPEAL BOARD In the flatter of
)
)
HOUST01 LIGHTIr1G At4D POWER COE1PA1Y,)
)
50-499
)
(South Texas Project, Units 1 & 2) )
CERTIFICATE OF SERVI _CE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO INTERVENORS' TWO APPEALS FILED MARCH 25, 1981" 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 by deposit in the Nuclear Regulatory Commission internal mail system, this '9th day of April,1981 :
Richard S. Salznan, Chairnan*
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 Mashington, DC 20555 Livermore, CA 94550 Dr. John H. Buck, Menber*
Melbert Schwarz, Jr., Esq.
Atomic Safety and Licensing Baker and Botts Appeal Board One Shell Plaza U.S. Nuclear Regulatory Commission Houston, TX 77002 Nashington, DC 20555 F
Christine N. Kohl, Esq.*
Mrs. Peggy Buchorn Atomic Safety and Licensing Executive Director Appeal Board Citizens for Equitable Utilities, U.S. Naclear Regulatory Commission Inc.
Washington,-DC 20555 Route 1, Box 1684 Brazoria, TX 77422 Charles Bechhoefer, Esq., Chairman Atomic Safety and Licensing Brian Berwick, Esq.
Board Panel Assistant Attorney General U.S. Nuclear Regulatory Coaaission Environmental Protection Division Washington, DC 20555 P.O. Box 12548, Capitol Station Austin, TX 78711 Dr. James C. Lamb III 313 Woodhaven Road Chapel Hill,f4C 21514
d
, Jack R. Newnan, Esq.
Docketing and Service Section-Lowenstein, Newnan, Reis,.
Office' of th' Secretary
. Axelrad & Toll U.S. Nuclear Regulatory Connission
.1025 Connecticut Avenue, N.W.
Washington, DC 20S55 tiashington, DC 20036-Kin Eastman,-Co-coordinator Atonic Safety and Licensing Garbara A. Miller Board Panel
- Pat Coy.
U.S. -Nuclear Regulatory Co;nnission
. Citizens Concerned About Nuclear Washington, DC 20555 Power 5106 Casa Oro Atonic Safety -and Licensing
. San Antonio, TX
-73233 Appeal Board
- U.S. "uclear Regulatory Comission Uashington, DC 20555
- g. 6h, JkM. Gut
[
Counsel for NRC Staff 1
l' i
O 4
j.
J i
k-
_..