ML19351G280
| ML19351G280 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 02/13/1981 |
| From: | Bielawski A, Mark Miller, Murphy P COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8102230422 | |
| Download: ML19351G280 (21) | |
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UNITED STATES OF AMERICA '
NUCLEAR REGULATORY COMMISSICS 3];Cfesppr=g'~j I 7 !$
ATOMIC SAFETY AND LICENSING SCARD g
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In the Matter of ) / 'ol -
) Cocket Nos. 50-454 OMMONWEALTH EDISON COMPANY ) 50-455
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(Byron Nuclear Power Station, )
Units 1 and 2) )
PETITION FOR RECONSIDERATION Pursuant to the Board's " Order (Granting Leave to File Petition for Reconsideration)", dated January 31, 1981, Cc=monwealtn Edison Company (" Applicant") , by its attorneys, hereby petitions this Licensing Board to reconsider its
" Memorandum and Crder (Admissibility of Revised Contentions
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of Intervenor League of Women Voters),' dated December 4 A 0
1950 and received by Applicant on Januarv 19, 1981. /\ dE / c E-f *,, Q 42
-- O u sp6> ..e Z /4 Relevant Procedural History Cn March 23, 1979 this Board cranted the Leac '
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Wccen Voters of Rockford's ("Intervenor") petition to intervene in this proceeding. In this Order the Board reminded Inter-venor of the need to file a supplement to its petition to intervene setting forth adecuate contentions. Intervenor filed its proposed contentions, consisting of 13 numbered contentions, on July 30, 1979. A prehearing conference was 9 $81$
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held in Rockford, Illinois on August 21-22, 1979. At the -
prehearing conference the Scard requested that "the parties and ccunsel get together in the sense of negotiating or at leas discussing the further refinement of such contentions which have been brought forward." Tr. at 104. On March 10, 1950, over seven months after the completion of the special prehearir; conference, Intervenor filed its Revised Contentions consisting of 146 numbered contentions. Applicant responded t: Intervenor's revised contentions on April 18, 1980. The NRC Staff filed its Answer to the Intervenor's revised contentions on April 25, 1980. On December 19, 1980 this Bcard entered its " Memorandum and Order" in which it ruled on the admissibility of Intervenor's Revised Contentions.
ARGUMENT
- 1. Late Filed Contentions.
Section 2.714(b) requires the Licensing Board to balance the five factors set forth in 10 CFR 52.714 (a) (1) before admitting untimely contentions. The period during which Intervenor could timely file contentions ended fifteen days prior to the special prehearing conference held in Rockford, Illinois on August 21-22, 1980, or August 6, 1980.
10 CFR 2.714(b). At this time, Intervenor had timely filed its proposed contentions, consisting of 13 numbered contentions.
= ._ _.~ ._- _-
On March 10, 1930, over se'.en months af ter the period provided for the timely filing of contentions, Intervenor filed its Revised Contentions, consisting of 146 numbered contentions. As Applicant noted earlier in this proceedic.g, these Revised Contentions not only failed to refine and focus the issues raised in the original conten-tions, but also significantly expanded upon those issues.
Indeed the use of the term " revised contentione" is somewhat misleading. The League's " revised contentions' were in fact not revised. The League merely reintroduced in substantially identical form their original contentions and added in excess of 120 new contentions, many of which bear no relation-ship to the original contentions.* There can clearly be no question but that these " revised contentions" were submitted well beyond the time period provided by the Commission's regulations for filing contentions.
The Board admitted ten Revised Contentions which ,
had no counterpart in the League's original filing.** In its
" Memorandum and Order," this Board declined to apply the balancing test mandated by 52.714 (b) to the Revised Contenrions,
- The list of Revised Cententions contains substantially all of the contentions originally filed almost without-l change. Ccepare original Contentions 2, 3, 4, 5, 6, 7, l 8, 9, 10, 11, 12 and 13 with Revised Contentions 107, 1 106, 108, 109, 110 (111-113), 114, 115, 116, 117 (118-119), respectively.
i ** "hese Contentions are 17, 40, 78, 87, 100, 122, 123, 1
124, 125 and 146. It should be noted that, technically, each revised contention other than those included in l
the list of original contentions was untimely filed.
However, Applicants are focusing only on those contentions which raise matters which cannot even arguably be deemed to f all within ' the scope of the matters ' raised -
in the original contentions.
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- ..-- a e .l; " a_e ". ~4 . . .4*S. -ca.*a.a.+.4 Scard. This period ended August 6, 1980. The Seecial prehearing conference was not held until AuguS: 21-22, 1930.
ThuS, the pericd for the timelv filing of contentions ended onference even occurred. Any before the Special pre 2 s
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additional time granted parties at the special prehearing conference to refine contentions was done for purposes of arriving at more discretely defined contentions and eliminating duplications; not to provide an opportunity for raising entirely new issues (Tr. at 104).
Even assuming that tha Board had granted additional time solely for the purpose of allowicq Intervenor to obtain the assistance of counsel in the drafting of contentions, these revised contentions would remain untimely and the Board must still conduct the balancing test set forth in Section 2.714 (a) (1) .
In Waterford, the Board granted a party an additional thirty days to file an amended petition totintervene in order to allow the filing of contentions with the assistance of counsel. The amended petition to intervene contained 83 contentions outside the scope of the original petition.
1 Despite the fact that petitioner had not initially been represented by counsel, the Appeal Board required the Licenring Board to apply the factors set forth in Section
- 2. 714 (a) before ruling on the admissibility of each of the l
"new" contentions. Waterford, supra, 6 AEC at 374.
In this adjudicatory proceeding, Intervenor had ample time with which to draft acceptable contentions prior to the deadline provided for in 10 CFR 52.714 (b) . Additional l
time was granted by the Board at the special prehearing conference to allow further refinement of the contentions previously filed. Intervenor abused this opportunity by filing Revised Contentions which significantly expanded.the number and scope of the issues beyond those timely raised in s r the original contentions. This Board has the respcnsibility to evaluate each "new" contention in light of the facecrs set for:5 in 5 2. 714 (a) (1) before admitting such contentions into issue .n this proceeding.
- 2. Unresolved Generic Safety Issues The Board admitted 39 contentions related to
" unresolved generic safety issues" (Memorandun and Order, p.
14). The Scard's ruling is apparently based upon two con-siderations. First, the Board appears to hold the opinion that Appeal Ecard decisions construing Fiver Send (Gulf States Utilities Company (River Bend Station, Units 1 and 2), ALA3-444, 6 N?C 760 (1977) modify the pleading recnire-ments mandated by River Bend. Second, the Scard ac.c. ears to believe that an intervenor need not plead specific con-tentions related to generic saferv. issues until after the issuance of certain Staff documents, principally the Safety Evaluation Report ("SER"). As we establish below, this ruling cannot be supported, and in fact directiv, contradicts applicable Cc= mission regulations a.:d precedent binding on this Ecard. We also show that our concern is not with technicalities, but rather, a sincere effort to avoid the unwarranted potential for delav. and inaepropriate discoverv.
which would result from the Board's decision.
- a. The River Bend Holding The Board has confused its responsibilities to determine whether the Byron Station can be operated safely in light of the existence of generic safety issues, with its
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responsibilities tu assure that contentions which raise generic safety issues are specific and relate to the faci-lity under review. This distinction, and the licensing board's responsibilities in carrying out these separate and distinct duties are carefully discu_ssed in the River Bend ,
decision. Indeed, the distinction i} fundamental to the Appeal Scard's holding on the admissibility of contentiens raising generic r.atters.
In River Bend, the Appeal Board clearly distin-guished between the cbligation impos.ed on an intervenor to advance contentions which are suf ficiently specific and relevant to the subject matter of the licensing prcceeding, and the duty of a licensing board to examine generic safety issues and determine whether there is reasonable assurance that the facility can be operated safely irrespective of _
what matters may or may not have isen placed in controversy. ,
The responsibilities of a licensing board in the radiological health and safety sphere are not confined to the consideration and disposition of those issues which may have been presented to it by a party or an " interested state" with the required degree of specificity. To the contrary, irrespective of what matters may or may not have been properly placed in controversy, prior to authorizing the issuance of a construction permit the board must make the fi'nding, inter alia, that there is ' reasonable assurance' that 'the proposed facility can be constructe'd and operated at the proposed location without undue risk to the health and safety of the public.' 10 CFR 50. 3 5 (a) .
To be sure, in the absence of a contest on a
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particular safety matter, the board need not Nonetheless,...tc duplicate the staff's review.
discharge its functions adequately it must pass judgment upon whether that review 'has been adequate.'
i 10 CFR Part 2, Appendix A, Section V(f)(2); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAa-123, 6 AEC 331, 335 (1973), revised on other grounds sub nom. Aeschliman v. ::RC , supra .
River Send, supra, 6 NRC at 794. In a footnote, the Appeal Board explained:
Although Section V(f) (2) of Appendix A to Part 2 is expressly directed to licensing beard res-ponsibilities in a ' uncontested case,' the obligation to determine whether the staff safety review is
' adequate' obviously is equally applicable to the uncontested portions of a case in which some matters have been placed in controversy. It would
=ake no sense at all to construe the appendix otherwise; e.g. to conclude that the licensing 4
boards nust make such a determination if no issues
- are contested but need not do so if an intervenor j
has entered the proceeding for the purpose of i raising environmental matters. Rather, the only reasonable interpretation is that the intended distinction insofar as licensing board treatment in a construction permit proceeding is concerned is between issues in contest and matters which have not been placed in controversy. Wtth respect to the former, the board must resolve the con-l troversy and also decide whether the required safety and environmental findings can be made.
Section V(f) (1) . With respect to the latter, the i board must decide whether the Staff's review has i been adequate to support their findings.
! River Send, supra, 6 NRC at 774, f.n. 26 (emphasis in original).
Che discussion quoted above followed the Appeal i
Board's affirmance of the Licensing Board's decision to exclude from consideration at the evidentiary hearing issues related to generic safety issues and regulatory guide items.
i I
The Appeal Scard held that an intervenor must do more than present what amounts to a che:klist of items contained in generic safety item documenc s and regulatory guides in order to place these matters in contest in a licensing proceeding.
The mere identification of a generic technical matter which is under further study by thedoesstaffnot (such as a TSAR item or Task Action Plan) fulfill [an intervenor's pleading obligation],
even if the matter has some patent relationship to the category of reactor under review. For as we have seen, the generic study may have little bearing on safety - e.g., where it concerns the methodology of the staff's review. To establish the requisite nexus between the permit or license application and a TSAR item (or Task Action Plan),
it must generally appear both (1) that the under-taken or contemplated project has safety signi-ficance insofar as the reactor under review is concerned; and (2) that the fashion in which the applicacion deals with the the matter in questions is unsatisfactory, that because of the failure to consider a particular item there has been an in-sufficient assessment of a specific type of risk for the reacter, or that the short term sclution effered in application to a problem under staff study is inadequate. (footnote omitted]
River Bend, supra, 6 NRC at 773.
The requirements imposed on licensing boards by r
A board must initially i River Bend could not be clearer.
decide whether matters related to generic safety items are A matter related to generic properly placed in controversy.
safety issues is a contested issue only if in intervenor's t
contentien establishes the requi9tte nexus between the generic item and the facility unt'er review. If a contention 1
' is sufficient to place generic issues in contest "the board l
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must be dismissed. In the absence of an adequate contention,
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safety problems per _se only becomes a relevant area of licensing board inquiry where there are no contested issues
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- Of course, in an operating license prcceeding under the recent amendments to 10 CFR S 2760a, the Licensing Board may independently examine and decide matters not placed in controversy where it determines that a serious safety, environmental or commen defense and security matter exists. See 44 Fed. P.ec. 67088 (1979).
10 -
In short, under River Bend, in order to introduce matters related to generic safety items, an intervenor must establish the requisite nexus between the item and the facility in question. A crucial element in meeting this requirement involves a showing that "the fashion in which the application deals wich the matter in question is unsatis-factory, that because of the failure to consider a particular iter there has been an insufficient assessment of a specific type of risk for the reactor, or that the short term solution offered in the application to a problem under Staff study
[on a generic basis] is inadequate." River Bend, supra, 6 NRC at 773 (emphasis supplied). Clearly, the showing which must be made to satisfy the River Bend pleading requirement for an. acceptable contention is in no way dependent upon information contained in the SFR. Rather, it is entirely dependent upon information contained in, or omitted from, the applicant's application. Therefore, the Board clearly erred in ruling that "the specificity and nexus contemplated by River Bend, supra, cannot be expected until the Staff's SER has been filed." (Memorandum and Order, p. 18)*
- See also Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928 (1974), where the Commission denied petitioner's request for permission to either file generalized contentions or permit the filing of contentions after issuance of the SER. Petitioners had argued that there was insuf-ficient basic scientific information for preparation of specific contentions. The Commission rejected this argument for, as in our case, " petitioners implicitly ignore [d] the wealth of data available in the voluminous application filed by the Utilities..."
i r 1 Commonwealth Edison Company provided the League with copies of the Byron Station Final Safety Analysis Report (i.e. a major part of the " application", as that term is used by the Appeal Board in River Bend) well before the League filed its contentions. That document discusses the final design for the facility, as well as the Company's proposals regarding maintenance and operation of the plant.
Included in these discussions are Applicant's evaluation and prepcsals regarding applicable generic safety issues. The League had every opportunity to review the FSAR and raise specific issues, in the form of adequately pleaded con-tentiens, regarding any deficiencies it perceived with respect to Applicant's proposed solutions. The League failed to do so.* Consequently, under the express holding of River Bend, these contentions must be dismissed.
- b. The North Anna and Monticello Holdings These fundamental principles are in no way altered, i
and in fact have been clearly reiterated, in recent Appeal Board decisions mnstruing River Bend. .Vircinia Electric and Power Company , (North Anna Nuclear Power Station, Units t
1 and 2) ALAB-491, 8 NRC 245 (1978), involved a sua sponte review by the Appeal Board of an operating license proceeding.
The issue of whether the League's contentions meet the pleading requirements imposed by the Commissions' regulations and River Bend does not se0m to be open to serious question. The Board implicitly recognized this fact when it absolved the League, for the time being, from meeting the specificity and nexus requirements established by River Bend. See Memorandum and Order,
- p. 18.
- o e to some Although the proceeding was centested with respect issues, generic safety matters had no: been raised as con-tested issues at the licensing board level. The Appeal !
Soard applied River Bend and held that where unresolved generic safety issues are net contested, the Scard need only ascertain whether the staff dealt appropriately with these matters prior to authori::ng the issuance of an operating ,
lirense. North Anna, supra, 8 NRC at 248. Elaborating on thts issue, the Appeal Board stated:
- -e wish to say precisely what we have done anf have nc: d:ne. In view cf the limitations imposed by regulations and the fact that our review was necessarily unaided by any of the parties, we have not probed deeply into the substance of the reasons put forth by the staff for allowing operation to go forward. Rather, we have only looked to see whether the generic safety issues have been taken into account in a manner that is at least plausible and that, if proven to be of substance, would be adequate to justify cperation. Scrutiny of the '.o substance of particular explanations-will have await a contested proceeding.
North Anna, supra, 6 NRC at 248 fn. 7.
An understanding of the Appeal Board's intent in including the last sentence in the above quote is of crucial importance. In view of the fact that both River Bend and North Anna were contested proceedings at the licensing board
, leval, this sentence cannot possibly be read as requiring that a licensing board address generic safety issues as matters in controversy irrespective of whether there are Rather, a adequate contentions which. raise such issues.
licensing board is required to scrutinize "the substance of particular. explanations" regarding proposed solutions to
. . . .- __ - _ - -__ _ - -__= -
i 8 4 e applicable generic safety issues only where there is a viable, properly pleaded, contention challenging the appro-priateness of the solution. See, River Bend, supra, 6 NEC l at 774, fn. 26.
Furthermore, the fact that North Anna was an operating license proceeding, whereas River Bend was a construction permit proceeding, is of no import in terms of 1
pleading requirements mandated by River Bend for an admis-1 sible contention raising generic safety issues. North Anna enly distinguishes between the type of determinations which could be considered appropriate at the operating license Indeed, i stage as opposed to the construction permit stage.
l the requirement that a licensing board need only consider controverted issues in operating license proceedings and must therefore "take utmost care" in determining whether a petitioner has adequately formulated specific and supportable
' contentions in such proceedings, ma.7 dates that the River Bend pleading requirements be stringently applied in this i
operating license proceeding.
i
' The recent decision in Northern States Power j
Company (Monticello Nuclear Generating Plant, Unit 1), ALAB-620, 12 NRC ,
Slip Opinion (November 24, 1980), is also l
i consistant with the holdings in River Bend and North Anna.
Therefore, the The Monticello proceeding was not contested.
l Appeal Board limited its review to deciding whether the staff review of generic issues had been adequate.
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[N]o endeavor has been made to satisfy our-selves that the staff's approach to each iden-tified task corresponds exactly with what we would have onne in the shoes of the Director of Nuclear Reactor Regulation. Rather, we have limited our consideration to the plausibility of the approach and the sufficiency on their face of the expla-nations 3.ven for conclusions reached by the staff respecting the continued safe generation of the Monticello facility.
Monticello, supra p. 5.
Again, since generic items were not contested in
[onticello, the case is not relevant to, and consequently toes not modify, the River Bend pleading requirements.
- c. Adverse Effect of the Board's Ruling In ruling that unspecific contentions should be admitted at this juncture in the proceedings, pending the submission of Staff documents, the Board has ignored the substantial adverse impact on Applicant which will result from the Board's action. As the Board recognized in its order, once contentions are admitted, parties have a right to conduct discovery relating to the issues raised in the contentions. Discovery in a proceeding which involves a large number of extremely complex technical issues is time consuming and expensive. It is patently unfair to Applicant, and contrary to the Commission's regulations for the Board to authorize discovery relating to matters raised in contentions which are so vague and nonspecific that the Board itself is
% 4 unable to decide if they merit consideration. The Board has in effect authorized Intervenors to peruse Applicant's files at will without the need to raise a proper contention. This is precisely what the Commission's regulations are carefully drafted to avoid:
Once the key issues in controversy are iden-tified in the special prehearing conference order (S2.751a(d)), discovery may proceed and will be limited to those matters. In no event should the parties be permitted to conduct a " fishing ex-pedition" or to delay the proceeding.
10 CFR Part 2, Appendix A, Section IV(a). 1 In addition, in 1978, the Commission amended its Rules of Practice to grant more time to intervenors to file specific contentions prior to the special prehearing con- -
ference. This amendment was specifically designed to provide adequate time for intervenors to. gather data suf-ficient to draft specific and refined contentions which are to provide a focus for subsequent prehearing and hearing proc ^edings. 43 Fed. Reg. 17798 (1978).
For the foregoing reasons, the Board should re-consider its decision to admit the League's contentions relating to generic safety issues, and dismiss them from this proceeding.*
- There is, of course, a possibility that matters discussed in Staff documents which have yet to be submitted, may raise new issues regarding safety and environmental concerns specifically related to the operation of the Byron Station. If this situation develops, the Commis-sion's regulations provide that, upon a. proper showing, the Board may admit late filed contentions as issues in controversy based upon such new information.
- 3. Reculatory Guide Matters The Board admitted 4 of the League's contentions relating to compliance with Staff Regulatory Guides, stating:
i "It is true,...that regulatory guides are not regulations per se. A regulatory guide sets forth one, but not necessarily the only, method which may be employed by an applicant in order to conform to a regulatory standard. However, at some point and probably in the SER, the Staff will analyze and discuss the reasons why it finds acceptable (or not acceptable) an alternative method which this Applicant has chosen to employ in order to conform to a regulatory standard. For the same reasons. discussed regarding unresolved safety issues, supra, these contentions will be admitted, subject to subsequent refinement with respect to nexus and particularization requirements."
Memorandum and Order, pp. 18-19. As with the generic safety item contentions, the Board's decision to' admit these con-tentions runs afoul of the Commission's regulations and River Send.
In River Bend, the Appeal Board recognize 6 that, not unlike generic safety items, staff regulatory guides are by their very nauure generalized, and may bear no relationship to the question of whether a particular facility can be safely operated. Moreover, the Appeal Board recognized that an applicant may devise an alternate method of meeting a specific regulatory requirement other than suggested in the regulatory guide. Thus, the Appeal Board instructed that:
To bring newly issued regulatory guides into play (i.e. to frame an adequate contention], it would have to be shown, e.g. that the means adopted by the applicant (as reflected in the application) for satisfying a regulatory require-ment are either not efficacious or significantly less satisfactory than those recommended in the guide.
River Bend, supra, 4 NRC at 773 (emphasis supplied).
4 Again, the League was required to focus on Appli-cant's proposals. The Staff's-views regarding these pro- -
posals, as may eventually be reflected in the SER, have no .
bearing upon this pleading requirement. Therefore, the Board clearly erred in admitting the League's vague and ,
nonspecific contentions which allude to regulatory guides, a
pending submission of the SER. These contentions should _
accordingly be dismissed. -
WHEREFORE, for the foregoing reasons, Applicants request that the Board determine whether Intervenor he; ret the late filed contention requirements with respect to Revised .
Contentions 17, 40, 73, 87, 100, 122, 123, 124, 125 and 146.
In addition, Applicants request that-the Board dismiss Cor.tentions 20-49, 68, 69, 73, 74, 75, 77, 80, 86, 106, 66,-
70, 72 and 105 for falling to meet the requirements imposed by 10 CFR 52.714 and River Bend. -
Respectfully submitted, t
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Michael I aw 4/ U aa
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Alan P. Elelawsri .
Attorneys for Commonwealth Edison Company i .
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ISHAM, LINCOLU & BEALE One First National Plaza Chicago, Illinois 60603 (312) 558-7500 _
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. . , , , Docket Nos. 50-454 and 50-455 Marshall E. Miller, Esq., Chairman Dr. A. Dixon Callihan Atcmic Safety and Licensing Board Union Carbide Corporation Panel P.O. Box Y U.S. Nuclear Regulatory Commission Oak Ridee, Tennessee 37830 t
- Washingten, D.C. 20555 J
Dr. Richard F. Cole Myron Karman, Esq.
Atcmic Safety-and Licensing Scard Office of the Executive Legal Panel Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Conmission Washingten, D.C. 20555 Washington, D.C. 20555 t
I A
Atomic' Safety and. Licensing Appeal
~
Richard J. Goddard, Esq.
Office of the Executive Legal Board' Panel Director U.S. Nuclear Regulatory Cc= mission U.S. Nuclear Regulatory Cenmission Washington, D.C. 20555 i Washington,RD.C. 20555 i
' Atomic Safety and Licensing Board Secretary.
Chief, Docketing and Panel Attn:
U.S. Nuclear Regulatory. Commission Service Secnion Washingten, D.C. 20555 U.S. Nuclear Regulatory.Commissien l Washington, D.C. 20555 4
i 4
Chief Hearing Counsel lis. Betty Johnson -
{
-Office of the Executive Legal 1907 Stratford Lane i Director Rockford, Illinois 61107 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
. . _. _ - _ . . . - . ~ . . ~ . .. - .
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] Dr. Bruce von Iellen Ms. Beth L. Galbreath Department of Biological Sciences 734 Parkview Northern Illinois University Rockford, Illinois 61107 >
DeKalb, Illinois 60115 1
1 F
Michael I. Miller, Esq.
Paul M. Murphy, Esq. Isham, Lincoln & Beale Isham, Lincoln & Beale One First National Plaza One First National Plaza i Suite 4200 Suite 4200 60603 Chicago, Illinois 60603 Chicago, Illinois 1
I
.vr . Cordell Reed Myron M. Cherry, Esq.
Co=onwealth Edison Company Cherry, Flynn & Kanter l P.O. Box 767 One IB". Plaza
- Chicago, Illinois 60690 Room 4501 Chicago, I*1inois 60611 Dr. Axel Meyer Kenneth s'. Levin, Esq.
I Department of Physics Beatty, Levin, Holland,~Basofin Northern Illinois University & Sarsany I DeKalb, Illinois 60115 1: South LaSalle Street Suite 2200
' Chicago, Illinois 60603 I
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