ML20004E939
| ML20004E939 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 06/12/1981 |
| From: | Goldberg S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ALAB-642, NUDOCS 8106160208 | |
| Download: ML20004E939 (12) | |
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UNITED STATES OF A11 ERICA NUCLEAR REGULATORY COMMISSI0li BEFORE THe ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of SOUTil CAROLIliA ELECTRIC & GAS
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Docket No. 50-395 COMPAllY
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Virgil C. Summer Nuclear Station
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NRC STAFF RESP 0itSE TO FAIRFIELD U141TED ACTION APPLICATION FOR STAY OF DECISION PENDING REVIEW Steven C. Goldberg Counsel for NRC Staff June 12, 1981 18106160 W 6 #f(
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UNITED STATES OF Al1 ERICA NUCLEAR REGULATORY COMMISSI0li BEFORE THE ATOMIC SAFETY AND LICEt4 SING APPEAL BOARD In the Matter of SOUTH CAROLIIIA ELECTRIC & GAS
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Docket No. 50-S95 COMPAliY
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Virgil C. Sunvaer Nuclear Station
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Unit 1
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NRC STAFF RESP 0ilSE TO FAIRFIELD Uli1TED ACTION APPLICATI0f4 FOR STAY OF DECISION PENDING REVIEW Steven C. Goldberg Counsel for NRC Staff June 12, 1981
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06/12/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of SOUTH CAROLINA ELECTRIC & GAS Docket No. 50-395 COMPANY Virgil C. Summer Nuclear Station Unit 1
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NRC STAFF RESPONSE TO FAIRFIELD UNITED ACTION APPLICATION FOR STAY OF DECISION PENDING REVIEW INTRODUCTION On June 1,1981, the Appeal Board issued a Decision in the captioned proceeding reversing the Licensing Board's April 30, 1981 order granting the late intervention petition of Fairfield United Action from which both the Applicant and Staff appeald /ALAB-642). On June 5,1981, FUA filed en application for a stay of ti is Decision pur:uant to 10 C.F.R.12.788 pending the disposition of its eventual petition for Commission review pur-suant to 10 CFR i 2.786.1I The Staff believes that all of the considera-tions relevant to a stay application under 10 C.F.R. 52.78S(e) weigh against the grant of the present application and, accordingly, it is opposed by the Staff.
DISCUSSION In determining whet 5er to grant or deny a request for a stay, the following considerations prevail:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits;
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By its literal terms, Section 2.786 does not contemplate filing with this Commission a petition for review of Appeal Board decisions on intervention rendered pursuant to 10 CFR 9 2.7.14a.
However, the Commission has entertained appeals in this regard. See Florida Power and Light Co. (St. Lucie, Unit 2), CLI-78-12, 7 NRC IW (1978).
't 9 (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
10 C.F.R. 62.788(e). The Staff will consider each factor ad seriatim below.
1.
Likelihood of Success on the Merits The Appeal Board properly decided that a consideration of the factors governing nontimely intervention in 10 C.F.R. 52.714
" mandated"U enial of the FUA petition and that the Licensing Board d
ruling to the contrary constituted an abuse of the latter's discretion in such matters.3_/ The Staff believes that the Appeal Board reached a sound decision that preserves the integrity and orderliness of NRC licensing proceedings and should surely meet with Commissionapproval.O Where, as here, the movants have not and cannot establish that serious irreparable injury will result in the absence of a stay or that the other relevant factors favor its grant (See infra at 5-7), they must make an " overwhelming" showing that they will succeed on the merits of their appeal to obtain a stay.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 634 (1977); see also Florida Power and Light Co. (St. Lucie Nuclear Plant Unit No. 2),
ALAB-404, 5 NRC 1185, 1189 (1977).
y Slip op. at 24.
3/
Slip op, at 5-6.
y See slip op. at 6.
. The Appeal Board correctly found that the lateness of the FUA petition (filed within veeks of the scheduled evidentiary hearing) was ' manifestly unjustified,"El and that the grant of late intervention significantly expanded the issues in the proceeding (with the addition of 10 contentions) to the prejudice of the other parties.5I In this latter reg 6rd, the extreme lateness of the intervention deprived the other parties of discovery and summary disposition on the new issues.E The Appeal Board further concluded that the Licensing Board had attributed greater ability on FUA's behalf to contribute to the proceeding than was warranted on the ba:;is of the record.
The Staff agrees.
Fairfield United Action was initially admitted to litigate corporate management and emergency planning contentions. The group initially represented that it did not intend to,/ (and, in fact, has not), file any 8
direct testimony on the corporate management contentions.
Instead, it intended to cross-examine Applicant witnesses relying on the familiarity gained through its past participation in state rate proceedings. The Appeal Board correctly found that it was "not immediately obvious" why this involve-ment in a state rate proceeding would provide unique expertise in the area of management competence to operate a nuclear facility.1/
The Appeal Board could discern no basis for the Licensing Board's firm opinion to the con-trary. This was particularly true, in the Appeal Board's estimation, given 5/
Slip op, at 5.
6/
Slip op, at 9-10.
y Slip op, at 12-13.
8/
April 7-8, 1981 Prehearing Conference at Tr. 467.
9/
Slip op. at 20.
. the inexcusible lateness of the petition and the collective ability of the experienced Board members to insure the development of a sound record on these matters. EI With regard to the emergency planning contentions, the Appeal Board noted FUA's expressed intention to offer the direct testimony of a Dr. Greenhut and a Ms. Marlene Bowers Andrews but opined that too little information was then provided concerning their qualifications and possible testimony to "pemit an infonned judgment regarding their likely contri-bution."El The Staff agrees.
In any event, FUA served the prefiled testimony of these two individuals concerning one aspect of one emergency planning contention on May 28, 1981. The gravaman of their prefiled testimony is that the Applicant's public information literature about emergency procedures and preparedness is too complicated for the less educated residents in the area. The Staff believes that this may be a valid criticism and would encourage the Applicant to take this into account in the development and expansion of its public information program concerning accident risks and emergency preparedness. FUA did not prefile any other proposed testimony on emergency planning issues.
Quite apart from these considerations, the Appeal Board aptly concluded that the introduction af a new party in a proceeding initiated over four years ago for which hearings are imminent compromises the integrity of the adjudicatory process. E This echoes the reasoning j.0,/ Id. at 20-21.
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11,/ Id. at 22.
g/ Id. at 24.
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. applied by the Appeal Board in the North Anna decision on late inter-vention.EI As demonstrated above, the Appeal Board reached the proper decision based on the operative law and facts and the Commission should not disturb this result. Moreover, the delay and uncertainty the readmission of FUA would introduce into the proceeding in the face of recent Commis-sion efforts to reduce the backlog of near-tenn operating licenses and otherwise reduce unnecessary delay in the licensing process,EI would appear to make it unlikely the Commission would reverse the Appeal Board decision which, as already stated, was correctly decided on the merits.
2.
Irreparable injury The question of whether irreparable injury will be sustained by a movant unless, a stay is granted is a crucial factor. for consideration.
See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-437, 6 NRC 630, 632 (1977). However, if, as here, there is no showing the moving party will prevail on the merits of its appeal, there is no right to a stay even if the movant will stffer ir.ep-arable injury. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 631 (1977).
In any event, FUA cannot demonstrate that it will suffer irreparable injury if its present application is denied. The issuance of an operating license cannot occur until the Commission so authorizes after its review of a Licensing
-13/ VEPCO (North Anna Nuclear Power Station, Units 1 and 2), ALAB-289, 2 WC"795 (1975).
See Staff brief in support of initial appeal, dated May 11,1981, at 9-10.
14/ See Comission " Statement of Policy on Corduct of Licensing Proceedings". 46 F.R. 28533 (May 27, 1981).
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. Board initial decision.E A Commission decision on FUA's petition most assured can be issued before an operating license can reasonably be expected.
The movant claims that if the evidentiary hearing scheduled to be held from June 22-July 2,1981 is conducted without it, it will suffer irreparable injury. Even if, as the movant observes, it is unlikely that Commission actior, on the eventual appeal from ALAB-642 wculd be completed in this time frame, FUA would not be deprived of a hearing on those issues were the Commission to reverse ALAB-642. Under such circumstances, a Commission decision would be rendered in time to permit a hearing on FUA's contentions to take place between July 13-24, already set aside by the Board as a second hearing session (if necessary), and for which FUA is available to appear. The dirict testimony on FUA contentions is already on file in the proceeding and all parties concerned presumably ready to proceed to an expeditious hearing thereon.
For these reasons, the Appeal Board decision does not impose irreparable injury upon the movants.
3.
Harm to other parties l
l The schedule for the June 22 evidentiary hearing was established l
l in February,1981. All the existing parties have proceeded with case preparation with that in mind.
Prefiled testimony was filed on May 28.
The grant of the present stay request would dramatically disturb the hear-ing plans and adversely effect the schedules of the presiding Board mem-l l
bers, parties and their ccuntel, and several dozen prospective witnesses.
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15/ See recent amendment to Commission review procedures for Licensing 1
ToTrd decisions granting operating licenses contained in Appendix B to 10 CFR Part 2.
46 F.R. 28627 (May 28, 1981).
l The parties hope to be able to complete the hearing in a single two-week session.
If the stay is denied and the Appeal Board decision is ultimately affirmed, the case can proceed to decision on an orderly basis.
If a stay is granted and the Appeal Bo0rd decision is ultimately affirmed by the Commission, the Board and parties inust then reschedule the planned hearings which will result in unnecessary delays. Such scheduling delays would have the effect of unnecessarily delaying any eventual initial decision and license.
4.
Public Interest As the Appeal Board noted, the public interest is best served by the orderly conduct of NRC licensing proceedings.E The Commission has recently reiterated its commitment to this objective in its " Statement of Policy on Conduct of Licensing Proceedings." Given the unlikelihood of FL,A prevailing on the merits, and the fact that additional hearing time is already set aside in Joly, if necessary, it does not serve the public interest to stay the Appeal Board decision and thereby postpone the June 22 hearing.
Such a decision would seriously disrupt the orderly administration of this proceeding in the event FUA does not prevail and reintroduce the substantial uncertainty which this Appeal Board removed in ALA8-542.
If PJA is reinstated as a party it will get its " day in court".
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16/ Slip op, at 6; See also Allied General Nuclear Services (Barnwell Nuclear Fuel Separations Facility), ALAB-296,12 NRC 671, 684-85 (1975).
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S i CONCLUSION For the above reasons FUA's application for a stiy of ALAB-642 should be denied.
Respectfully submitted,
,I C A U Steven C. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 12th day of June, 1901.
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r UNITEDSTATESOFAMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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SOUTH CAROLINA ELECTRIC & GAS
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Docket No. 50-395 COMPANY
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Virgil C. Sumer Nuclear Station,
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CERTIFICATEOFSERVICE 2
I hereby certify that copies of NRC STAFF RESPONSE TO FAIRFIELD UNITED ACTION APP!ICATION FOR STAY OF DECISION PENDING REVIEH-in the above-captioned pro-ceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk,'through deposit in the Nuclear Regulatory Comission's internal mail s.$ sten,Ithis 12th day of June,1981.
Alan S. Rosenthal, Chairman GehrgeFischer,Esq.
Atomic Safety and Licensing Appeal Vice President and General Counsel South Carolina Electric & Gas Co.
Board U.S. Nuclear Regulatory Comission P.O. Box 764 Colwnbia, South Carolina 29202 Wcshington, D.C.
20555 *
- Richard P. Wilson, Esq.
Dr. John H. 3uck Atomic Safety and Licensing Appeal Assistant Attoraey General S.C. Attorney General's Office Board U.S. Nuclear Regulatory Comission P.O. Box 11549 Columbia, South Carolina 29211 Washington, D.C.
20555
- Mr. John Ruoff Christine N. Kohl Atomic Safety and Licensing Appeal P.O. Box 96 Jenkinsville, S.C.
29065 Board U.S. Nuclear Regulatory Comission 3 rett Illen Bursey Washington, D.C.
20555 *
/ oute 1, Box 93-C R
Herbert Grossman, Esq., Chairman Little Mountain, S.C.
29076 Atomic Safety and Licensing Board Panel
' Joseph B. Knotts, Esq.
U.S. Nuclear Regulatory Comission Debe.voise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C.
20555
- Washington, D.C.
20036 Dr. Frank F. Hooper School of Natural Resources Randolph R. Mahan, Esq.
University of Michigan S.C. Electric & Gas Company Ann Arbor, Michigan 48109 P.O. Box 764 l
Columbia, S.C.
29218 l
Mr. Gustave A. Linenberger Atomic Safety and Licensing Board Danel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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2-Atomic Safety and Licensing Board i
Panel U.S. Nuclear Regulatory Comission 4ashington, D.C.
20555
- Atomic Safety and Licensing Appeal Panel U.S. Nuclear Regulatory Comission Washington, D.C.
20555
- Docketing and Service Section Office of tne Secretary U.S. Nuclear Regulatory Comission Washington, D.C.
20555 *
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Steven C. Goldberg Counsel for NRC Staff l
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