ML20004F480

Pleading,In Form of Brief,On Appeal & cross-appeal of ASLB 810324 Memorandum & Order.Intervenor Still Needs Names & Statements of Persons Who Provided Info Re Show Cause Order. Certificate of Svc Encl

ML20004F480
Person / Time
Site:	South Texas
Issue date:	05/01/1981
From:	Coy P Citizens Concerned About Nuclear Power, INC., CITIZENS FOR EQUITABLE UTILITIES
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8106180428
Download: ML20004F480 (8)

Text

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May 1 1981 4 \ O g United States of America p Nuclear Regtilatory Commission ~

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8' MAY 4 1981 ,

BEFORE THE ATOMIC SAFETY AND LICENSING APP _EAL BOAR" 0//;ee ,f ..

CT:Ae:,,,f3e tary .,

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%, Ehe,"nce In the Matter of i >

HOUSTOr LIGHTING & POFER COMPANY,et al. ) ' ' '- T2

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Docket Nos. 50-498, (South Texas Project, Units 1 & 2) tis 0-499 - ..

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$g hte@ lt= pr } @ Brief on Appeal and Cross-Appeal of24,1981 Marcht

!- ,y ASLB Memorandum and Order . -

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<' Introductorv Statement [ . f. . :

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MOM _ 27,1980 Citizens Concerned About Nuclear Power , t '; a ' i r. :

("bCANP") requested a public hearing on vi;the'NRCs+0rder-  : ':

to Shoy Cause dated April 20,1980. In stating its rquments .

on, behalf of a public hearing, .CCANP mentioned that at such ' ,

a hearing it would be expected that"the NRC would produce.the actual witnesses and sworn statements which formed the basis ,

cf the Order to Show Cause."Lettet to Vic or Stello, p.6.

s CCANP went on to assert that, To deny the request for a public hearing. ~

would be to deny existing evidence and potential evidence to the Intervenors and by so doing deny such avidence to the ASLB. Id. 6-7.-

On Septe:ber 22,1980 the Commission responded to CCA"P's request for a hearing on the Show Cause Order in a Memorandum i l l and Order denying the request for a public hearing at which the l i

l l evidence supporting the Show Cacse Or' der would be disclosed.

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. 2 In rejecting Intervenor's argument that failure to provide i a public hearing on the Show Cause Order would effectively  !

co cn eal the evidentiary background of the Order, the NRC stated,

. Citizens can file either interrogatories with the staff or a Freedom of Information request with the Commission in order to learn the identities of  !

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persons. with knowledge about the incidents covered -

by the Director!s order. Memorandum and Order, i 12 NRC 281 (Slip Opinion at 14). ' ' '

Thereafter, on October 28 and 29,3980 "two members of CCANP -

independently requested information concerning the Show-Cause(tw- .

_; Orders. For example one request signed by Kim Eastman requested'

" items identified by NRC investigators -in this investigation w': t-which were not included in the Show Cause Order." . e -.

On Novemberl7,1980, in its "NRC Staff Response toCCANP.ne;.7 J :.

' Requests for Information' and Motion for Additional' Dime" >: 1- -

the NRC communicated i'i refusal to produce the requested '

r information. This informal and tentative communication was ^

subsequently followed up by an "NRC Staff Additional Response-  !

to CCANP ' Requests for Information'" dated December 8, 1980., '

Because of incapacity and subsequent withdrawal by CCANP'r.

i attornies,.CCANP was unable to file its "CCANP. Motion to j r

Compel t'MC Staff to Provide Information" until March 16,1981.-  ;

This motion made abundantly clear that CCANP, sought all of the -

information concerning- the evidentiary basis of the Show Cause .

Order that the Commission had said wculd be made available ,

i to Intervenors in its September 22, 1980 Orde'r.  !

., In its DMemorandum and Order ddted March 24,1981, the ASLB granted CCANP leave to file its Motion to Compel out of time [

and. granted the motion to compel in part. This Appeal dated April 3 and Cross-Appeal dated April 13 then followed. ,

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3 0 t In its" Notice of Appeal and'L4st of Exceptions" dated April 3,1981 the NRC has stated four exceptions to the Board's i

March 2 4,1981 Memorandum and Order. CCANP has responded to each of these exceptions in its " Opposition to NRC's ' Notice ol' Appeal ar' List of Exceptions' and Cross Appeal to March 24, '

1981 Order" (Title amended hereinto correct typogrpphical error in original). At the same time CCANP stated, in the 1

alternative, three exceptions of its Own to the March 24,1981 Board order. In its "NRC Staff's Opposition to CCANP's Cross ..

Appeal and Agreement With Shortening the Briefing Time" dated April '

24. 1958 1 rhe NRC has stated its arguments in opposition to  !

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Intervenor's Cross-Appeal. These arguments are discussed l below, DISCUSSION -

1. The NRC claims that CCANP's cross appeal'i$ untimely.,

In its argument the NRC does not mention Federal Rule of .

Appellate Procedure 4(a) which was plainly cited by CCANP in its cross appeal. Under this Rule after a notice of appeal is filed by a party, any other party has 14 daysafter tge time of the initial notice of appeal to fil. a cross appeal. ,

The NRC admiss a that the the NRC rules of procedure make  !

no crovision for a cross appeal. In fact other than a few very generally stated provisions, the rules of procedure c i

contained in 10 CFR, Part 2, make very few detailed provisions for procedure on appeal. It is a well known principal that i

when agency rules do not provide detailed provisions for the rules of procedure. governing adjudicatory proceedings  !

the Fed'eral Rules will provide a supplementary guide to the l r

rules that shall govern.th6 agenpy proceeding. The present [

f case is an ap t one for application of this ru.'.t. [

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- 4 A cross appeal after notice of appeal has been filed by another party is well accepted in both federal and state practice. Simply because the brief and sketchy rules provided by the NRC do not make express reference to this practice does not mean that it should not be followed by the NRC as it is in the Federal Courts. The denial of a right of cross appeal would serve I no good purpose. The happenstance of ommission from the patently deficient NRC ruls of procedure is ins'ufficient l reason, standing alone, to refuse to recognizei the long-stan ding practice of cross appeal as follused in the Federal  !

Courts. The failure to mention cross appeal in the sketchy NRC rules does not mean that it should not be applied in i NRC practice. Failure by the NRC to gxpressly provide ,

for this well accepted procedure simply means that it must ,

no. expressly address the issue. If for some reasonthe NRC believes that the practice followed by the United States Courts of Appeals is not worthy to be folloWed by the NRC, the NRC is now directly called upon to justify its posiition.

If on the contrary the NRC practice'indeed does conform to  !

that followed by the Federal Judiciary, it is clear that

• CCANP's cross appeal was filed in good time. e

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At page 2, note 2 of the NRC's April 24 " Opposition" l the NRC attempts to argue that the information referred .

. i to in the exc ptions e stated in CCANP's cross appeal was not  !

earlier requested in CCANP's requests for information and '

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. Motion to Comp'1. However these documents make clear that l it was ever CCANF's intent to obtain the full information  !

! r i concerning the Show Cause Crder that the Commission stated  ;

l would be available in its September 22, 1980 Order. CCANP's

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, 5 request for all of this information ir not a recent one. Although because of lack of legal advice it may have been poorly formulated t

on occasion , CCANP's request has consstently been for all of the evidentiary background to the NRC's Show Cause Order.' Only part -

of this information was orderedto be provided under the ASLB's March 24,1981 order. It is the remainder which CCANP new seeks on this cross appeal. There is no way to distinguish the informatien which the ASLB allowed and the information which 1.t did not l

allow.

2. In part two of its " opposition" dated April 24,1981, i

the URC repeats the argument stated in footnote 2 off its  ;

argument in part 1, i.e. that CCANP had not earlier requested -

the names of all persons who supplied information  !

to the NRC on all relevant matters forming the i basis of the Order to Show Cause dated April 30'1980. ' ,

Cross-appeal, exception 2. .

,On?.the contrary, this information is well within the general .

request submitted by Kim- Enstman on October 29,198Q quoted f abovg for information not included in the Show Casue Order.

The Motion to Compel again made it clear that the full range of information obtained by the NRC was sought when it requested the identities and sworn statements of those i.a s pectors who supplied information which formed the basis of the Order to Show Cause. -

This request was not limited to QA/QC inspectors. The remainder of the Motion to Compel, especially the alterna'ively t stated request for Board Certification number 1, show the full scope of CCANP's request to be coterminous with the information the Commission stated would be available in its September 22,1980 i' l Memorandum and Order. The use of a few inelegant modes of expression

• by lay members of the intervenor in formulating their requests '

purusant to the Septenber 22,1980 order does not change the l

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actual nature of the CCANP request for information, if fairly _ j c onstrued. The manner in which the Board formulated its order 7 belCW - indicates that it-also understood the CCANP request for j i

information to be broader than that which it granted.  !

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3. The NRC's final objection to Intervenor's cross appeal is that it would constitute an interlocutory appeal. The NRC's (

own underlying appeal is itself an interlocutory appeal and }

a ccordingly subject to the same objection. The Board below [

balanced the interests of a fair hearing against the.NRC's .

f objections to the adequacy of a protective order and found that I at least as to some of the requested information the interests i

of'a fair hearing prevails. 1

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The NRO itself has stated the criteria for discretionary [

t interlocutory review of licensing board rulings: ,:

1) where.the party adversely affected by that ruling may -

suffer immediate and serious irreparable harm, or -

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2) where the challenged ruling may affect the structure of (

the proceeding in a basic way. .

If CCANP is unable to present its principal case on the allegations c ontained in the Show Cause Order because of lack of access to the j evidentiary background of the order, CCANP will be.irreparapiy injured in its ability to present its principal cas~e and at the j same time the structure of the proceeding wil? be affected in -

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a basic way through CCANP's inability to present a principal l part of its case. .

1 CCANP opposes the NRC's interlocutory appeal. But little {

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difference can be seen between the merits of the NRC's appeal f

i and that of CCANP's cross. appeal for pprpose of taking an l r

. interlocutory appeal. They both arise out of the.same circumstar.ces. l J

There is no reason to review the Boards order only from thepoint ]

i of view of the NRC'.s objections. If the Order is to be reviewed .

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the Appeals Board at all/.: must review the balance which the Board struck ,

between the NRC's interests in questioning the efficacy of a protective order in assuring its confidentiality concerns and the Intervenor's interest in a full and fair hearing on the issues. This balance cannot be reviewed by looking at only one side. While the NRC contends that the balance should be I t

struck closer to its own interests, CCANP believes that the balance should properly have been struck in'a manner to require production of more information than it did.

If the Appeals Board is to look at the NRC's side of the argument ,

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at this time, it should also look at the other side in the interest of fairness and justice.

CCANP has fully answered the substence df the NRC's exception s on appeal.in its " opposition" dated April 13,1981.

Intervenor contir.ues to be in need of the names and statements of persons who provided ir.lormation to the NRC in connection with the Show Cause Order if it is to adequately present this information to the ASLB. It is not sufficient that the Intervenors might have some of these names available to it among a

the names of the many. people who have worked at STNP. CCANP i needs to know the specific persons who gave important information to the NRC which formed the basis of the Show Cause Order if '

t it is to have any hope of presenting ,these issues effectively.

Intervenors do not have the investigatory resources of the NRC to duplicate the work already accomplished in' preparing the Show Cause Order.

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• espectfully Submitted, .

Pat Coy, for Citizens Concerned

About Nuclear Power and CEU "0f'[b s ,

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CERTIFIC;TE OF SERVICE I hereby certify that the foregoing INTIBRIET ON APPEAL AND CROSS APPEAL OF MARCH 24,1981 ASLB MEMORANDUM A'sD ORDER has3heen served on the

' following individuals and entities by deposit in the U.S. Mail, first class postage prepadi on this 1st day of May, 1981.

Pat Coy r

Richard S. Sal::an Cha-les'Sechhoefer, Esquire Chairman Chairman Atomic Safety and Licensirs Atomic Safety and Licensing Appeal Soard Board U.S. I;uclear P.egulatory Commission U.S. Nuclear Regulatory Comi ssic:

Washington, D.C. 20535 Washington, D.C. 20555 Dr. John H. Buck Dr. James C. Lamb I; ember 313 Woodhaven Road Atomi : Safety and Licensing Chapel Hill, North Carolina 2751h appeal soara U.S. Nuclear Regulatory CMcission -Mr. Ernest E. Hill -

Washington, D.C. 20555 Lawrence Livemore Laboratory University of California

, ,jichael I. C. Farrar, Esquire Livernore, California 94550 '

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~ Atomic Safety and Licensing Edwin J. Reis Appeal Sea.rd U.S. ??uclear Reg 21ator/ Commission Office of the Executive Legal Director Washington, D.C. 20555 U.5. :'uelear Regulatory Co==issier  ;

,das,n :,.ngton, D. C . 2 0'C55 Atomic Safety and Licensing Appeal Panel (5) .

Brian E. Berwick  :

,U.S. I?uclear Regulator / Co==ission Assistant Attorney Cerp,1 for

..asnington, D. C. 20036 the State of Texas  !

. c=as 2. Hudson, Jr., Esquire P.O. 3ox 12548, Capitol Station Austin. Texas 78711 '

3aker and Botts '

3000 Cne Shell Plaza ICrs. Peggy Euchorn '

Housten Texas 77002. Route 1, Sox 1684

, 3razoria, Texas 77h22 Locketing and Service Section (7) '

Office of the Secretary i U.S. I?uclear Regulatory Commission i

,dashington, D.C. 20555 '

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Atc=ic Safety and Licensing #

3 card Panel M, l /

C U.S. Iluclear Regulator; Cov'ssion l

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