ML20003F793
| ML20003F793 | |
| Person / Time | |
|---|---|
| Site: | Byron  |
| Issue date: | 04/13/1981 |
| From: | Cherry M CHERRY, M.M./CHERRY, FLYNN & KANTER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104230601 | |
| Download: ML20003F793 (12) | |
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C:I.c4 c. 72 Ser-A # p C SAFEll M D LICD3ING BOARD ::131 ; !. !..
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) Cccket Nos. 50-454 COMN:EALTH EIsCN COIPmTI ) 50-455
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(Byron Nuclear Power Staticn, )
Units 1 and 2) )
MDDRATD1 CF DGE:OR ROCKFCRD LEAGUE CF IC'DI VOIERS IN CPPCSITION 'IO PETITICN FCR RECQ3IDER;L"'ICN Cn January 8,1981, the Board issued a detailed Memorandun ard Crder ruling on the admissibility in this p W ing of the revised contentiens of the Peckferd Imague c.f Rren Voters ("the Imague"), an intervenor herein.
On February 13, 1981 the Applicant, Ccmanwealth Edisen Ccmq ("Edisen"),
filed a petition to recensider the Board's ruling in three areas. This narrandu:n responds to that petiticn, and to the Staff's March 3,1981 nurcrandu:n sup;rrting Ediscn's positicn.
l Introducticn ,
At the outset three cbservations ::ust he made. The first is "t ht
. Fr?iecn's petiticn afrcnts the Board with nothing new. Ediscn sirply l
l reiterates argunents it made in respnse to the Imague's revised cententians-argu.nents already rejected hy the Board. The seccrd is that, contrary to Ediscn's apparent positicn, this Board has substantial aut!rrity cver the precedure and timing to be followed here--authority which the Ibard thoughtfully, and prcperly, exercised in its January 8 Mancrandu:n and Crder. And the third chservaticn has to do with the nature of the cententions and the procedures 9so3 1 l 810.4230 60/ f/
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applicable to contenticns. As the Board correctly observed, Mecerandum, January 8, 1981, at 2, 4, cententiens are analogous to pleadings in Federal civil practice. Their function is to serve notice of issues, not to set out c"idence or finally resclve disputed points. With cententions as with ple u gs:
"It is neither Ccngressicnal nor Ccmission policy to exclude parties because the niceties of pleading were 1:: perfectly cbserved. Scundar practice is to decide issues en their nerits, not to avoid then en technicalities.
"Ncr is a Board at liberty to reject a party's intervention petition-as applicants' pacers seemingly hply-because of doubts about the party's ability to prove its case. The Rules of Practice designate avenues for avoiding an evidentiary hearing where it is not needed; cne must follow the paths prescribed, however, to reach that result. 10 CFR 2.749."
Housten Lighting & Power Co. (Scuth Texas Project, Units 1 and 2), AIAB-549, 9 NBC 644, 649-50 (1979) .
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These basic principles have particular applicatien to Edison's present situaticn. Ediscn wishes, in substance, to dispese sumarily and at the threshold of a substantial nu:ier of cententiens admitted by this Board. As the Appeal Board pointed out in South Texas, there are apprcpriate ways to do so-which Edisen has not invcked here. See also Housten Lighting & Pcwer Co. (Allens Creek Nuclear Generating Station, Unit 1), AIAB-590,11 NPC 542, 546-50 (1980).
Of course it is as yet premature to invoke 10 CFR S 2.749. But that secticn, Scuth Texas,and Allens Creek underscore an inpertant point. If after discovery the cententicns Ediscn attacks ultimately p cve valueless, the mechanics for resolving then short of an evidentiary hearing exist. FAicon has, then, ancther 1
bite at the apple. But if those cententiens are su=arily rejected ncw,
- 1. Edisen also expresses cence2.n ever burdenscm discovery. Again Edisen miseenceives its renedy. Should disecvery preceedings beccce unduly burdenscre to Edisen (which, we note, has far more resources than the Ieague), Ediscn may seek relief under 10 CFR SS 2.720, 2.740(c) . But to scuttle issues in advance en the g:cund that discovery might at sane point become burdensare is a form of throwing out the baby with the bath water authori:ied neither by the Rules of Practice nor by ccmon sense.
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at the initial pleaing stage, the Imague has no remedy until this entire proceeding is te=inated. No interlocutory appeal can be Pad.10 CFR S 2.714a; Housten Lichting & Power Co. (Allens Creek Nuclear Gerarating Staticn, Chit 1),
AIAB-586,11 NFC 472 (1980) .
Sirply in light of these general benc. Wark principles, Edison's petitien to overturn the Board's ruling admitting the Iaague's contentiens (and thereby truncate irportant portiens of this proceeding, in advaa.ce of any meaningful factual incairy) does nct ccrrnend itself. Nor does Edison's petitica for reconsideration fare better on closer scrutiny, as we shcw below.
I THE BCARD CCPSECTLY E'ECIED EDISCN'S "I.A"E FII.ED CCITTE."'ICNS" AEGCSD'r o Edisen's first ccqplaint is that ten of the Iaague cententions admitted by the Ecard were " late filed," and ::ust trarefore be reviewed in light of the five facters set forth in 10 CFR S 2.714(a) (1) . Petition at 2-6.
This Ecard rejected exactly the same FAimn arg=nent as to exactly the same cententiens (and cthers, of which Edison does not new c= plain), in i'a January 8,1981 Memorandua and Order. Edisen effers no persuasive reason wty its arg=nent is any better now than it was when the Ecard rejected it.
. Ediscn begins by risconstruing the relevant events. FA% asstraes that the Imague's initial statment of thirteen cententiens scmWow ccnstitu+ad 2
a " final" pleading. As the Board explained at pages 7-3 of its January 8,1981 Mercrandtra and Crder, hcwever, that sirply is not the case. The Ecard explaired that the August 1979 conference (and tFg Ecard-recuested negotiatiens which followed) were "nct intended to...li: nit the lay parties to tre narrow secpe o
of the proffered cententiens."' The Board ccncluded that any such limitation:
- 2. As tra Scard ncted ;Id.) , "at the special prehearing conference N1d in Rockford, Illinois en AugEst 21-22, 1979, ncne of the Intervencrs was represented by ccensel."
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"...would also be unfair to tra Intervercrs because the Ecard never intended nor mdicated to them that they were rigidly bound to the scope of unreviewed contentions in develcping or negotiating a set of cententions reflecting their concerns."
[ Emphasis added.]
Accordingly, the Board held:
"We do not regard these revised contentions as nontimely within the meaning of our rules."
Thus the occasien fer pursuing a 10 CFR S 2.714(a) (1) inquiry simply does not arise. Miecn claims that the timing provisions of 5 2.714(a) (3) leave the Board with no leeway in this regard. But that is not true.
Section 2.714 (a) (1) specifically provides-iWately before setting cut the facters governing a non-timely petition to intervene-that the Board may establish what is " timely." And the sole authcrity cited by niiscn on this issue, Icuisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),
o AIAE-125, 6 AIC 371, 372-73 (1973) , specifically upheld the Board's authcrity to extend tra time for filing contentions. See also Houston Lighting & Powr Co.
(Allens Creek Nuclear Generating Station, Unit 1), AIAB-590,11 NBC 542, 544 (1980), upholding a contention which "first surfaced in (an] authorized supplemental filing." Certainly, Waterford (wtare the cententicns in issue were concededly not timely) affords no basis for evertuming this Board's determinaticn, en the facts of this proceeding, that the Imague's challenged cententicns wre
. timely.
In particular, Waterford did not (as Edison contends, Petition at 5) hold that "new" cententions are ipso facto untimely. tbr did Waterford hold that the S2.714(a) (1) facters must autmatically be applied to all such cententicns.
What Waterford did was to reverse a Licensing Board rejection of admittedly untimely contentiens, en the ground that the Ecard's rejection had erroneously failed to take into account the S 2.714 (a) (1) factors en a contention-by-cententien basis. But to say that those facters must be applied to adnittedly untirely
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cententions (as Waterford did) is obviously not to hold that they must be applied to contentions which this Board has held timely. Waterford, and Edisan's argument, are both wide of the mark here.
, That disposes of this issue. In view of this Board's holding that the contentions Edison attacks were timely, it is not appropriate at this stage to address the 10 CFR S 2.714(a) (1) factors in detail an a contention-by-cententicn basis (as Waterford would requ2re)--nor has Edisen or the 3
Staff done so. On that score we note only that if the issue were to arise, the Imague would be entitled to be heard en the matter (and to respond to anything Edison or the staff might present). Housten Lighting & Power Co. (Allens I
Creek Nuclear Generating Staticn, Unit 1), AIAB-565,10 NBC 521 (1979) .
II 4
- , THE BCARD'S EULDG'l4CEPTING TIE LEAGUE'S LNLVED-SAFE 4Y-ISSUE '
l CO7TENTICNS IG.S CORRECT A number of the Imague's Revised Contentions relate to so-called
" generic" unresolved safety issues, having particular applicability to Byron, which are the subject of ongoing Ccmnission and Staff effort and of Task Action Plans of varying levels of structure or implee.tatien. In the celebrated River Bend decisicn, Gulf States Utilities Co. (River Bend Station, Units 1 ard
- 3. Arguably Edison's failure to address these factors in its response to the '
Imague's Revised Cententiens, despite its claim of untimeliness in that respense,
- shculd dispose of the'
- ratter even if--centrary to the Scard's subsequent holding-the cententiens it attacks were not timely. Waterford's reversal of the Licensing Board's rejection of admittedly untimely cententiens plainly stands fcr the prepositien that under the circumstances here (see note 2 suora), ncn-tireliness is not alene a sufficient grcund for ruling cententiens out of issue on a wholesale basis. Edisen having failed to present anything ::cre (in effect demanding that the Board conduct a sua scente line-by-line inquiry), its cbjection '
should' be denied even apart fran the Scard's express holding of tireliness. A party who fails to argue his cwn objection is hardly in a position to demand reconsideration of its denial so that he can then raise arguments he forewent earlier.
- 2) , AG3-444, 6 NBC 760 (1977) , the AM Beard ir:;rsed an affi=ative duty en Licensing Boards to identify, ard to evaluate the iTact en plant safety of, such urresolved safety issues-even in uncentes*ad precealings.
In its January 8, 1981 Memorandum and Crder, this Board carefuD.y analyted River Bend and two s 6 sequent decisicns, Vircinia Electric and Power Ccr:oany (North Anna Nuclear Peer Station, Urlts 1 and 2), AGE-491, 8 NFC 245 (1978), and Nordern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), AGB-620,12 NBC (Nover.ber 24, 1980). @ls Ibard pointed cut that beginning with River Bend, in the centext cf urresolved safety issues, these decisions carvel out a rajor role for the SER in the centext of urresolved safety issues. As River Bend held, 6 KRC at 775:
"'Ihe SER is, of course, the principal doccnent before the licensing board which reflects the centent and cutcc.e of the staff's review. The Board should, therefore, be able to lock to that doctment to ascertain the extr.t to which generic urresolved safety proble s which have isen previously identified in a TSAR item, a Task Acticn Plan, an ACRS report or elseatere have been factored into de staff analysis for the par
- mlar reacter-and with what result. . . .
M....
"In short, the Board (and the cublic as well) shculd b_e _in _a. csitien _to ascertain frcm the SER itself--witirut the need to rescr to extrinsic doc = ants-the s"## percepticn
- of the na+are and extent of de relaticnship between each sicnificant urresolved generic safety questien ard the eventual cptien of the reacter under scrutiny."
In River Bend (a constructicn pectit prcceeding), de SER was already in existe .ce at the tine the cententiens u . der discussien in that case were riabritted. 6 NRC at 771. Under these circ = stances, ard in the centext of a const acticn perit proceeding (where, as noted in Ncrth A .na, 8 Nic at 248, urresolved safety issues ray have less i.r.ediate significance than dey do in an cperating license proceeding like tPis cre), t':e A.. peal
Board held that contentions addressed to unresolved safety issues were required to esmhlish a " nexus" between the Mcular issue and the facility in question.4 m h & E-h mM hw h & MW d this Board's and the Wes' analysis of unresolved safety issues-has not yet been issued. What effect does that have?
Quite p::cperly, this Board held tMt the fact that the SER has not issued cannot be used to deprive the Imague of the cpportunity *w plead iradecuate rest .ution of particularized generic safety issues with respect to Byren:
"'Ihe Imague is entitled to a:t in issue g its pleadines the adequacy of the staff's treat:nent of unresolved generic safety issues in relating to the Byrcn facility. 'Ibe specificity and nexus conte.clated by River Bend, sucra, cannot be expected until the staff's SER has been filed. Accordingly, these cententions are adritted, subject to subsequent refinement and particularization after the SER has been filed and assupriate disecvery ecznpleted."
- e recrandu
- n and drder, January 8,1981, at 17-18. This is an erinently practical result. As the Board pointed cut (Id. , at 19), if in light of the SER it appears that scrne of the League's generic safety issue cententiens are without substance, the procedure of 10 CFR S 2.749 is available to dispose of these cententions at that point. (On the other hand, if the Imague's cententiens are rejected at this purely pleading stage, the Imague has no ir.ediate remedy-see pages 2-3, abcVe-and the Imague's ability to assert these cententions when the SER is ultirately issued ray be questicnable.5)
- 4. Centrary to Edison's assertiens in its petitien for reconsideraticn, we believe the requisite nexus has been established here, as =uch as is.reascnably necessary at the pleading stage. There is hardly rocm to doubt that the issues pertain to Syren, and that they bear upon safety-the basic " nexus" require ents of River Bend, 6 BC at 773. Nor do we understand this Board's January 8 Mercrandun and Crder to have 4
held otherwise. Additional specificity will be desirable when the Byron SER is issued; but the Board's ruling explicitly leaves recra for that to cccur.
- 5. Both Edison and the Staff irdicate that were they *w succeed in dismissing the contentiens now, they wculd also cpecse raisi:q them when the SER is ultirately issued. The Staff suggests that the SER, "when issued, ray raise ratters...wtich could lead to the adrission of late cententiens.. .i.f it can be shcwn such infer ation was net reasonably available.. .." Staff Respense to Petiticn for Fecensideraticn, March 3,1981, at 4. Fdison takes a similar p:sition. Petitlen at 16, note.
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Nevertheless, instead cf pursuing the altogether sensible course trapped cut by the Board--which fully preserves Edison's ability to challenge safety issue cententiens on which the n (or developing events) cast doubt-Ediscn wishes to subject the Ieague to a form cf " Catch-22." As the Board observed, lacking the SER it is extremely difficult to achieve the level of specificity (unwarranted at the pleadig stage in any event, we believe:
see note 4 supra) which Edisen de aMs. Ediscn therefere insists that the Imague's unresolved-safety-issue contentions be dismis. sed. But when the SER is available, Edison will then subject the Imague to an even more striment threshold burden by taking the position that the cententiens are " late" at that point-because they were earlier dismissef. See note 5 supra. 'Ihat sert of merry-go-rcuni is inappropriate in any proceeding. As the Board ccrrectly cbserved (Marcrandun, January 8,1991, at 2) , quoting Philadelphia Electric Co. (Peach Botta'. Atcmic Power Station, Units 2 and 3), AIAB-216, 8 AEC 13, 20 (1974), the Ccr:rissien's pleading rules--of which, we suir.it, River Pend's " nexus" test is a part "should not be.. .censtrued as establishing secretive and ccne: plex technicalities." And Edison's Irer 1-go-rcund, intended artificially to erect technical cbstacles to the Ieague's cententiens, is even acre inapprcpriate here, where it pertains to safety issues as to.which the-Ieague expects to provide the Scard with a degree of particularized analysis and evidence sinply unavailable if the Board's role is restricted (as Ediscn would have it be) to the limited review authori:si in an uncontested proceeding.
Surely that is the precise point Irade in Northern States Pcwer Co. (Monticello Nuclear Generating Plant, Unit 1) , AIAB-620,12 NRC (Mover:ter 24, 1980),
quoted at page 17 of the Scard's January 8 Fecrandum:
"In view of the li-itations i::pesed by regulatien, and the fact that our review was necessarily unaided by any of the parties, we have net prebed deeply into the substance of the reascns put ferth by the staff [in the SERl . .. Scrutiny of_
the substance _of carticular exclara* dons w:Lil Pave _to await a contested prma='ina." (E v asa.s added by the Board.]
tat " scrutiny" is i pertant, particularly at tra cperating license stage. River Bend, Ncrth Anna, and M=ticello all so hold. Here the Imague's plmdings have invoked it, and "put (7M%] cn notice" of the issues with which the Imague is cencerned. Peach Bottm, sucra, 8 AEC at 20-21; see pages 3,17-18 of the Board's Jamary 8 Memorandt:n. Iacking the SER, rcre can hardly be .@ed at this point (even assuring ar=uendo =cre is needed at scrne stage as a ratter of p1maing) . t e Beard's handling of this questien was entirely ccrrect, as a ratter cf both law ard ccrren sense.
Ib be sure, FAi m ccrplains that discovery concerning the safety issues the Imague has raised ray be burdenscra. chis is both prerature and beside the point. The cbvious re:nedy fcr a disccverf prchlen--i' it arises--is nct tc: bar substantive issues at the threshold, but rather to address the prchlen under 10 CFR 55 2.720 and 2.740(c) . The ccnrissien's discovery rules are redeled en the Federal Rules of Civil Procedure. Flcrida Pcwer & Ilght Co. (St. Incie Plant, Unit No. 2) , I2P-79-4, 9 NRC 164,169 (1979) . Nothing in the Federal Rules res:tely authorizes rejecting a pleading, er barring a suscantive issue, because disecvery right te bcrdenscre. -4 ther, the Federal Ccurts-and this Beard-have a:ple authcrity to supervise discovery as ray be necessary.
- 6. tose holdings are reinforced by what we have learned frcra the
?ree Mile Island accident. De Keneny Ccr:rissicn criticized the practice of "issu[ing] cperating licenses to plants *h.en there are still 'cpen safety ite-s,'" and the NBC's own Special Inquim/ Group re arkedWn the basis of a surdey of Licensing Ecard rer.bers--that "NEC staff safety. analysis presentations, scr.e say, have becme legalistic tracts that repeatedly recite I the sa:ne assurances in case after case." Da Need for C'ange te Iecacy of "MI (U.S. GPO, Cctcher 1979) , p. 53; NL*RE:3/CR-1250, Trzee .tle Isla .d, A Reoer:
Tc 9.e C:: rnissicners And Ib The Public (U.S. SEC, January 1980) , p.140.
l Cne hcpes enat since these dccu: ents %re written, ratters have i. proved; l hut they certainly undersecre the i portance cf thercughly analyzing safety issues rather than-as Liisen seeks to do--c.nz: ling es irgirf at the cutset.
It is in the disecvery process, not here, tMt Edisen's cence=s can be prcperly addressed, if aM when the prcblems it hypcthesizes ranifest themselves.7 III.
E ECARD'S RLIING ActremG ,
. THE IIAGUE'S RB3 CIA'ICRY-GUIDE CCtriDT:ICNS 1%S Cuss.tL:r There retains only Fdiscn's attack en this Scard's rN accepting the Imague's four cententions " assert [ing] that in cer% descril:ed respects, the Byron design does not cc: ply with Staff Regulatory Guides." Memerand=a and Crder, Jamarr 8,1981, at 18-19. Inas=uch as Ediscn's rather cursery arg=nent en this point essentially reiterates its attack en the acard's unresolved-sa'ety-issue rulirs (discussed under II, above), we need not i.elaher the ratter. As the Board cbserved:
"A Fegulate: / 'Ande sets forth one, but not necessarily the only, met 5od which ray be ecployed by an 7pplicant in order to confcm to a regulatory standard. Ecv.ever, at scrae point and probably in the SER, the Staff will analyze aM discuss the reasons why it firds acceptable (or not acceptable) an alternative method wh.ich this Applicant has chosen to employ in order to conform to a regulatory standard. For the same reascns discussed regarding unresolved generic eafety issues, surra, ,
these cententions will be admitted, subject to subsequent refinement with respect to ne:cas ard particularizaticn recuirements."
Mercrandum and order, Jamary 8,1981, at 19.
- 7. And even in the discovery context, "[a] general cbjecticn that the interrogatcries are too mm er burdenscre"-tbe appropriate equivalent of Ediscn's concern here (though in Fdiscn's case the stated concern is wholly speculative and hy;cthetical) "will not suffice." Stenybrock Tenants Ass'n
- v. Aleert, 29 F.R.D.165,167 (D. Conn.1961) . Scecific defects in scecific discovery dectwis must be shown-just as is the case in Cc:missicn preceed=gs.
Ecsten Edisen Co. (Pilgrim Nuclear Generating Station, Unit 2), LEP-75-30, 1 NRC 579, 583 (1975) . A forticri Idison's attecpt to bar contentiens wholesale at the ple@q stage on the grourd of hypathetical, generalized discoverf difficulties cannot be allowed.
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The Scard's treatment of this questien was gaite correct, for the same reasons its treat:nent of the unresolved-safety-issue cuestien was correct. Regulatorv. Guides are not mandaterv. ce_r _se_, but thev. are irportant; and if an Applicant chceses not to c= ply with a Fegulatcry Guide, we cucht to know whether what it plans is sufficient.8 As with unresolved safety e
issues, the ki:xi of thorough and focused scrutiny tM League expects *w bring to bear on the Regulatorf Guide Issues which this Scard has a6dttei, is cir: ply not available if the League's cententiens are rejected, and those issues are therefore " uncor. tested." See pages 8-9, ateve. Fcr 9at reason, Ediscn's atte pt to cut-off this ingairy at tFa threshold was ccrrectly rejected by this Board.
COCESICN For the reasons set forth herein, the Inague respectfally sub::i'a that Ediscn's Petition for Reconsideration of the Board's Januarf 8,1931 Me crandtra and Order is withcut ::mit and shculd be denied.
Paspectfully suhaitted,
"'OIC 7 GJE OF hCC 'v __ S By: ff 7 / /if Act6rney *
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Meren M. Cherry Cherry & Flynn One IEM Plaza, Suite 4501 Chicago, Illinois 60611 (312) 565-1177
- 8. A review of the Byron FSAR Appendix A indicates that acco 1 q to Edison's cwn assessment, Byren does not c:rply, or ccrplies only in part, with over 20% of the relevant Divisicn 1 Pagulatory Guides; that as to a furtPar 23%,
the rest Edisen is willing to offer is a "caritrant" that at .sre unspecified future point, Byron will em: ply with the " intent" cf the Guide; and that Fdisen disagrees, cr has " qualifications", or reservations, cr interpretaticrs of its cwn, with over 20% of the pertinent Guides.
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I certify that a copy of the foregoing Cppositica tp Pecensideraticn was served, postage pre-Ad and properly addressed,
- by r. ail en Apru 13, 1981, upcn the Chairran and ushers of the At
- ric Safety and Licensing Board, counsel fcr Cumumalth Ediscn, counsel for CAARE/ SAFE, Intervencr, as well as the Secretary of the Nuclear Pegulaterf Ccmissicn.
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