ML20024B124
| ML20024B124 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 06/28/1983 |
| From: | Raymond Gibson DUKE POWER CO. |
| To: | |
| References | |
| NUDOCS 8307050250 | |
| Download: ML20024B124 (15) | |
Text
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING B ARyUL O 11983 > %
Cffice of the Ses, b Dgt &Ser. /7 In the Matter of )
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DUKE POWER COMPANY, et. al ) Docket Nos. 50-413
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) 50-414 (Catawba Nuclear Station,
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Units 1 and 2) )
APPLICANTS' COMMENTS ON TENTATIVE REVISED SCHEDULE In its Memorandum and Order of June 20, 1983, the Board set forth a tentative revised schedule. Applicants do not believe that this schedule will accommodate the issuance of an initial decision on the issues in this proceeding prior to the completion of the construction of Catawba. Given the prospect of
- a completed Catawba facility standing idle while awaiting this Board's initial decision, Applicants are compelled to comment on the Board's tentative schedule. 2/ Such comment is set forth below and falls into the following categories
- the 25 month schedule, the "300 day rule", other considerations 4
and Applicants' Proposed Schedule. The 25 month schedule refers to the time provided for licensing Catawba, such period running from the Notice of Hearing to the original fuel load date. No party interposed an objection to this timeframe. The 300 day rule refers to the Commission's instruction to Licensing Boards that every effort should be made to issue an initial decision within 300 days of the last major staff licensing document.
- 1. Sufficient time is still available to complete i
hearings on all issues under the "25 month" schedule originally contemplated There is sufficient time to complete the necessary proceedings on all issues (including anticipated emergency plan contentions) and still accommodate
-2/ The Board stated that it "will consider the parties' comments on the tentative schedule." June 20,1983 Memorandum and Order at p.19.
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Applicants' currently scheduled fuel load date of May,1984.2/ To explain why Applicants find the Board's " tentative schedule" unacceptable, and to support their assertion that sufficient time exists to resolve the issues prior to May of 1984, it is necessary to trace the history of this case.
The Notice of Filing of Application and Opportunity for Public Hearing in this case was published in the Federal Register on June 25 , 1981. 46 Fed.
Reg. 32974.
At that time the fuel load date for Catawba Unit I was August 1983, i.e. , 25 months away.
At that time there was no indication given that such timeframe could not accommodate the hearing process and the timely issuance of an initial decision.
With the filing of petitions to intervene on July 27, 1981, and the establishment of this Board on July 28, 1981, the adjudicatory process commenced. Contentions were prepared, responses thereto were filed and the first prehearing conference was held on Ja nuary 12-13, 1982.
(These activities consumed 7 months from the June 25, 1981 Notice, thereby leaving approximately 18 months to conclude the hearing and issue an initial decision). t k
At the January 1982 prehearing conference, Applicants, consistent with{
their December 28, 1981 {
letter to the NRC, stated that the fuel load dat e for l i
Catawba Unit I would be in the August -
December, i
1983 timeframe. !
(Tr. 17-19) . l With this time in mind, and taking into account its schedule for j issuing the Final Environmental Statement (October, 1982 (Tr. 11)) and the !!
2 Safety Evaluation Report ( August, 1982 (Tr. 11)), the NRC stated that it a j
anticipated going to hearing in December 1982 - February 1983. 2 (Tr. 11-12) . 5 There was no indication from the NRC, the Board or the parties that suchE
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f Applicants a May 1984 represent that their present construction efforts are exceeding fuel load date.
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February-April 1984 appears to be possible. 5
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- hearing schedule, which would accommodate the August - December 1983 fuel load date, could not be achieved.8/
Thereafter, the normal process continued for 4 more months with the issuance of the Board's ruling on contentions on March 5, 1982 and the commencement of discovery. With approximately 14 months left in which to conduct the hearing and issue an initial decision, Applicants' counsel informed the Board and the parties by letter of May 10, 1982 that the Catawba 1 fuel load date had been revised to October,1984. This, along with the Applicants' (and the NRC Staff's) request for a brief suspension of discovery so that an appeal of the Board's March 5,1982 Order could be taken, temporarily stayed the running of the remaining 14-month period when the Board granted a stay of discovery on certain contentions!/ pending disposition of Applicants' and the Staff's appeal.3/
Briefs were filed with the Appeal Board on July 16, 1982, and, approximately 1 month later (August 19, 1982), the Appeal Board issued its decision. A prehearing conference was held on October 7-8, 1982 to discuss the impact of this Order and on December 1, 1982, this Board issued a decision which, inter alia , lifted the stay of discovery on Palmetto 8
-/ The Staff stated that its estimate of the completion of Catawba Unit I was February , 1984- (Tr. 19) .
- 1/ In its Memorandum and Order of May 25, 1982, the Board temporarily suspended discovery on all contentions, except Palmetto Alliance Contention
- 27. In its Memorandum and Order of July 8,1982, the Board continued its stay of discovery on Palmetto Alliance Contentions 6 and 44; discovery on Palmetto Alliance Contentions 16 and 27 was not stayed.
3/ The Board's May 25 Order temporarily suspending discovery took cognizance of Applicants' information that the new fuel load date was October 1984. This Order also reflected a slippage in the NRC Staff's publication of licensing documents from August 1982 to February 1983. As a result the Board stated that "the start of hearing in this case must also slip at least several months." Id. at p. 2.
- c. .
-4 Alliance Contentions 6 and 44, thereby commencing the running of the 1
remaining 14 months.
During the temporary cessation of discovery on Contentions 6 and 44, the Draft Environment Statement was published (August 1982) and contentions were I filed thereon. In its December 1,1982 Order the Board ruled on these " DES" contentions 8/ and discovery on those admitted contentions commenced.
On December 22, 1982 the Board issued an order on discovery matters which had arisen as a result of the discovery ongoing since August. These issues were joined before the Board in September and had been addressed during the October Prehearing Conference. The December 22 Order set the course of the remaining discovery on Contentions 6, 7, 8,16, 27 and 44. The Board held that Palmetto Alliance should not be required to respond to any of Applicants' or the Staff's interrogatories (which had been filed in April and August of 1982) until it had had an essentially unrestricted "first right" of discovery against Applicants and Staff. Such "first right" was to consist of a detailed Motion to Compel to be filed by Palmetto Alliancel/; a Board ruling on that motion; supplemental responses by Applicants and Staff in accordance with the Board's ruling; followup interrogatories to Applicants and Staff by Palmetto Alliance; and responses to those followup interrogatories. (December 22 Order at pp. 16-17) Only when this process was completed was Palmetto Alliance obligated to provide responsive answers to Applicants' and Staff's discovery.
8/ As relevant to this case, the DES contention admitted in the December 1, 1982 order is DES 17. The Board subsequently admitted part of DES 11 in its Memorandum and Order of March 24, 1983; it ruled on DES 19 in its Memorandum and Order of February 25, 1983.
1/ This opportunity to file a Motion to Compel was the second opportunity to file such afforded to Palmetto Alliance. It had filed two prior motions to compel which the Board had found wanting. ,
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.- L-In issuing its December 22 Order, the Board acknowledged that it was
" keenly aware" of creating the " potential for undue delay." (December 22 l Order at p. 12) Therefore, the board stated that it was necessary for it "to set strict sch edules, limit numbers and sets of interrogatories, encourage other means of discovery, and possibly take other actions." [ d. at p. 18]
It set a schedule for action which would have allowed for Palmetto Alliance to complete its "first right" of discovery by mid-March, and to file " responsive answers" to Applicants' and Staff's outstanding interrogatories "around the end of. March or beginning of April." Id. It was not until May 27, 1983 that Applicants and Staff received responsive answers to their interrogatories on the majority of the contentions in the proceeding.
On May 20, 1983 Paimetto Alliance's right to discovery on all admitted contentions closed, pursuant to this Board's Memorandum and Order of February 2,1983.sf However, as stated, Palmetto Alliance did not provide its final responses to Applicants' and Staffs' outstanding discovery requests until May 27, 1983.9/ This discovery process consumed 6 more months of the normal schedule, thereby leaving 8 months within which to conduct the adjudicatory hearing and issue an initial decision. It is at this point that we now find ourselves.
The ongoing . activities occurring between the close of discovery and the commencement of the hearing, such as motions for sanctions, motions for summary disposition, prefiled testimony and submittal of a cross-examination plan are matters which would occur in the normal coursa of any proceeding, sf Discovery on DES 11 closes on July 25, 1983. Id.
-9/ In addition, the Board granted a one-month extension of time (until June 20, 1983) for CESG to file responses to Applicants' discovery requests which had been pending since December.
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1 Allocating 3 months for this exercise, the time remaining in the normal l
schedule will be reduced to 5 months as of September 1984. This would leave !
1 month for the adjudicatory hearing, I month for the submittal of proposed findings, and 3 months within which the Board could render its initial decision on the matters now in controversy 10/ (i. e . , the January-February 1984 timeframe).
As can be seen, the above-described time allocations are totally consistent with the 25 month schedule originally established and with which there was no quarrel.
- 2. The Board's revised tentative schedule is inconsistent with the Commission's "300 day rule" A June 19, 1981 internal NRC memorandum (see Memorandum on COM-JH-81-2, Hearing Schedules from Samuel J. Chilk-to William J. Dircks and Paul P. Cotter, Jr.) states that:
[The] Commission directs that the boards should attempt where possible to set hearing schedules so that the boards' initial decision would issue within 300 days of the issuance of the final staff safety evaluation report supplement, or final environmental statement or supplement thereto, whichever is later.
The staff is directed to use the 300-day period as a reference hearing process period for scheduling reviews for cases where boards have not yet set specific schedules .
This guidance, which Applicants refer to as the 300 day rule, was the result of extensive Licensing Board Panel and Commission deliberations. -See Nuclear Licensing: Innovation Through Evaluation In Administrative Hearings, B. Paul Cotter, Jr. 34 Admin L.R. 497, 512-515 (1982). As pointed out 1
20/ As will be discussed, the anticipated emergency plan contentions can also I be accommodated in the time remaining.
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-7 therein, initial apprehension over establishing time limits in cases of the complexity of nuclear licensing proceedings have been overcome in that "the exercise has proved salutary because the flexibility of the Commission's ultimate decision has' achieved the intended benefit without harm to administrative due process." [Id. at 512]
In this regard, it is recognized that the " variations among proceedings, complexity and the resultant need for individual case flexibility are easily subsumed in an envelope time frame." Id. at p.514.11/
It is clear that the tentative revised schedule set forth in the Board's June 20, 1983 Order is not consistent with this "300 day rule." The latest SER Supplement prepared by the staff was issued in April, 1983; 300 days from that date would call for an initial decision in February, 1984.12/ Such is consistent with Applicants' current fuel loading date.13/
. 3. Other considerations do not warrant adoption of the tentative revised schedule Applicants are aware that there are other factors which the Board may view as supporting adoption of the revised tentative schedule. A brief review of these factors reveals, however, that none warrants a decision to delay the hearing.
First, during the January 20, 1983 prehearing conference, Applicants informed the Board and parties that they expected to accelerate the October 1984 fuel load date by about 5 months, and to complete construction by May 11/ Recognition is also given to the fact that " cases expected to be heavily contested are allowed additional time for completion." M. Applicants do not consider Catawba to fit the " heavily contested" category identified in the referenced article. However, if this Board feels otherwise, consideration must be given to the two years which have passed since the publication of the Notice of Hearing in this case.
22 / See n. 2, supra.
13/ See section 3, pp. 7-8.
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l 1984. " / See Memorandum and Order of February 2,1983 at p.9. As of that time, 16 months remained before the scheduled fuel load. Nevertheless, in responding to this announcement, the Board stated: .
The Board will factor this new information into the scheduling of this case and make an effort to resolve the issues in a timely fashion. But the Commission's policy of completing licensing ahead of construction, consistent with a fair hearing, necessarily assumes that a fairly firm completion date is projected well in advance. For example, if we had known last fall about this recent schedule
- acceleration, we would have then set an evidentiary hearing some months earlier than the date we are setting now. It may not be possible fully to accommodate a substantial acceleration of the completion date which comes, as this one does, well into the hearing process. Given the number of uncertain variables, we cannot predict now whether this case can be completed by May 1984, assuming that date holds firm. Id.
Despite the concern voiced herein by the Board as to whether the initial hearing schedule can be maintained, Applicants' discussion in the instant pleading has demonstrated, under any standard that the NRC recognizes (25 month or 300 day), that sufficient time remains to conduct the adjudicatory hearing and issue a initial decision prior to May 1984. This point is underscored by the limited number of issues presently in the case, i.e. , 7.15/
Applicants anticipate filing motions for summary disposition on the majority of these contentions and therefore are of the view that the number of issues which will ultimately be the subject of the adjudicatory hearing will be few.
Another factor which may initially appear to justify the delay occasioned l by the Board's new schedule is that, as noted, the dates on which the Staff l
"/ See n. 2, supra.
l 1s/ The existing contentions are Palmetto Alliance 6,16, 27 and 44 (which has been consolidated with CESG 18) and DES contentions 11,17 and '19. The CMEC contentions were withdrawn pursuant to a stipulation which has been served upon the Board and parties on June 23, 1983.
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published its licensing documents slipped.
The Final Environmental Statement was filed in January 1983; the Safety Evaluation report was filed in February 1983, Supplement 1 to the Safety Evaluation Report. was filed in April 1983.
This slippage should not adversely impact timely issuance of an initial decision .
There are 11 months from the publication of the SER Supplement to scheduled fuel load, well within the 300-day rule. Moreover, no additional contentions arising from these documents were filed.
Using the "300 day rule" of the Commission, a February 1984 initial decision would be contemplated.
Third, off-site emergency plans were filed with the Board and parties on June 6,1983; emergency plan contentions are due to be filed on July 1:
1983.
See Memorandum and Order of June 13, 1983, at p. 9.
In its February 2,1983 Order (p. 9) the Board stated that We note, however, that the most significant (and presently unknown) factors in that regard [i.e., scheduling] are the -
number and complexity of offsite emergency planning contentions.
If that part of the case proves to be substantial, we are putting the parties on notice now that we may hear it separately later on.
Despite the Board's concern that .
the scheduling of these contentions could delay the hearing, l 9
Applicants maintain that off-site emergency planning i contentions should be straightforward and not technically complex. The basic E
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discovery documents' (the off-site plans) have already been given to the intervenors, and further discovery should not be time-consuming, provide 21 m
that the Board maintains a firm hand. Accordingly, it is not unreasonable to assume that ' emergency plan issues could be tried at a fairly early date.
Indeed, other Boards l%
have accommodated such concerns in an expeditious fashion. g Applicants refer to the Licensing Boards's recent decision in fi?
g Seabrook, wherein it has scheduled a hearing on off-site emergency plans 5in ii!
early December 1983, the off-site plans being published on June 20, 1983 E
. See Ei 51
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Public Service Co. of New Hampshire, et al. (Seabrook Station, Units 1 and '
2), LBP-82-471-02, NRC (May 23,1983)28/
In sum, Applicants conclude that with the exercise of a firm hand this Board can conduct the adjudicatory hearings and issue an initial decision prior to the completion of Catawba in the April-May 1984 timeframe. Certainly, issuance of an initial decision on all issues, including emergency plans, 35 months after publication of the notice of hearing in this case is not unreasonable.
Respectfully submitted,
=f Albert V. Carr, Jr.
Ronald L. Gibson DUKE POWER COMPANY P. O. Box 33189 Charlotte, North Carolina 28242 J. Michael McGarry Anne W. Cottingham DEBEVOISE & LIBERMAN 1200 Seventeenth St. , N.W.
Washington, D.C. 20036 Counsel for Applicants I
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-16/ It should be noted that like Catawba, an intervening hearing is scheduled in Seabrook for August 1983.
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l Applicants' Proposed Schedule Summary Disposition Motions on Palmetto Alliance Contention 16, 27, 44 (CESG 18), DES 17 and 19 ................................. July 8 Filing of Emergency Plan Contentions . . . . . . . . . . . . . . . . . July 11 Summary Disposition Motion on Palmetto Alliance Contention 6 ........ ................... July 15H/
Final Prehearing Conference pursuant to
$2. 751( a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 26H/
Summary Disposition Motion on DES 11. . . . . . . . . . . . . . . August 1 Applicants and Staff Opposition to Emergency Plan Contentions . . . . . . . . . . . . . . . ..... August 1 Responses to Summary Disposition Motions on 6, 16, 27, 44 (18), DES 17 and 19 . . . . . . . . . . ..... August 5 Board Ruling on Emergency Plan Contentions ...... . . . . . August 15 Discovery begins on Emergency Plan Contention s . . . . . . . . . . . . . . . . . . . . . . . . . . . . August 15 Board Rulings on Summary Disposition Motion on 6,16, 27, 44 (18), DES 17 and 19 . . . . . . . . . . . A u gu s t 26 Response to Summary Disposition Motion on DES 11 ...... .. ............... . . . . . August 26 Prefiled Testimony on 6, 16, 27, 44 (18),
DES 11,17 and 19 . . . . . . . . . . . . . . . . . . . . . Sep tember 16H/
H/ Applicants include Contention 6, despite the Board's notations to the contrary. Applicants read the Board's notations to be directed to quality assurance and control in welding. Applicants anticipate filing a motion for partial summary disposition, seeking to dismiss the concerns of Messrs.
Hoopingarner and McAfee which are separate and apart from the welding issue.
Applicants include DES 17 and 19 because discovery has closed to these matters and because the Board's February 2,1983 schedule calls for the filing of summary disposition on these matters at about this time.
H/ Applicants have moved the prehearing conference from August 17-18 to July 26 because of their strong desire to establish a firm schedule as soon as possible. If this Board wishes to discuss the emergency plan contentions, at the prehearing conference, Applicants will be prepared to do so.
Board Rulings on Summary Disposition Motion on DES 11 ........................... September 23 Filing of Cross-examination Plans with the B oard . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . S ep temb e r 3 02 of Hearings Commence on 6, 16, 27, 44 (18),
DES 11,17 and 19 . . . . . . . . . . . . . . . . . . . . . . . . . O c tob e r 4 Hearings Conclude on 6, 16, 27, 44 (18),
DES 11,17 and 19 . . . . . . . . . . . . . . . . . . . . . . . Oc to b er 28 12 f Discovery Closes on Emergency Plan Con ten tion s . . . . . . . . . . . . . . . . . . . . . . . . . . . November 14 Prefiled Testimony on Emergency Plan Contentions . . ......................... November 28 (Footnote continued from previous page) 18/ Applicants maintain that it is essential that the October 4 hearing go forward with all the presently admitted contentions for several reasons:
- 1. Two phases of safety hearings will seriously jeapordize timely issuance of an initial decision.
- 2. CFEC 1-4 have been withdrawn thereby providing time for consideration of 4 more contentions at the October 4 hearing.
- 3. The remaining ' contentions are straightforward and, aside from Contention 6, should not be time-consuming.
- 4. Applicants are hopeful that even this limited number of contentions will be reduced by the summary disposition procedure.
Applicants have advanced the date for filing prefiled testimony by one week so as to accommodate the subsequent filing of cross-examination plans .
20/ See Nuclear Licensing: Innovation Through Evaluation In Administrative Hearings, supra, B. Paul Cotter, Jr. , 34 Admin. L.R. at 519, wherein it j is stated that submittal of cross-examination plans '
improve the quality and focus of cross-examination, improves the board's ability to control it, and creates a better record for decision writing. The requirement is now I frequently used in licensing board proceedings. i See also " Statement of Policy on the Conduct of Licensing Proceedings",
13 NRC 452, 457 (1981).
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Filing of Cross-examination Plans with the Board . . . . . . . . . December 5 Hearings Commence on Emergency Plan Contentions . . . . . . . . . December 6 Hearings Conclude on Emergency Plan Contentions . . . . . . . . December 21 Proposed Findings filed by dll Parties . . . . . . . . . . . . . January 2022/
Initial Decision . . . . . .
. . . . . . . . . . . . . . . . . . . March 26 2 sf Conclusion Applicants submit that the schedule proposed is both equitable and necessary. Applicants submit that unless such is strictly adhered to, the initial decision may become the critical path item . If this Board feels constrained to adopt Applicants' schedule because of schedule conflict, Applicants reluctantly suggest that the emergency planning phase be bifuricated immediately with a separate Board appointed to resolve this issue.
This matter can be discussed at the July prehearing conference.
(Footnote continued from previous page)
-21/ Applicants believe that this Board has the inherent authority under 10 C.F.R. 92.718 to limit the time within which to litigate the issues. ,
Applicants submit that the time advanced in their above schedule is l consistent with both due process concerns and the Commission's charge to Licensing Boards to expeditiously conduct adjudicatory proceedings.
See Nuclear Licensing: Innovation Through Evaluation In Administrative Hearings, supra, 34 Admin. L.R. at 512-515, wherein~-time limits are discussed; see specifically note 93 which reveals that an "[u]nspoken assumption in the 300-day schedule includes thirty days for hearing . . ."
(emphasis added) 22/ See Consumers Power Company (Big Rock Point Plant), LB P-82-51 A ,
16 NRC 180,181 (1982).
23/ See Nuclear Licensing:
- Innovation Through Evaluation In Administrative Hearings, supra, at note 93, which reveals that an "[u]nspoken assumption in the 300-day schedule includes . . 65 days for writing the initial decision after the last post-hearing pleadings are filed."
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UNITED STATES OF AMERICA 4, 6 NUCLEAR REGULATORY COMMISSION %7F BEFORE THE ATOMIC SAFETY AND LICENSING BO RD 0 y c f;b Ol In the Matter ) \ '4
) e 3 DUKE POWER COMPANY, e_t al. ) Docket Nos. 50-413 Q g,
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Comments on Tentative Revised Schedule" in the above captioned matter have been served upon the following by deposit in the United States mail this 28th day of June 1983.
James L. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan J. Michael McGarry, III Union Carbide Corporation Anne W. Cottingham P.O. Box Y Debevoise & Liberman Oak Ridge, Tennessee 37830 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 Dr. Richard F. Foster P.O. Box 4263 Richard P. Wilson, Esq.
Sunriver, Oregon 97702 Assistant Attorney General State of South Carolina Chairman P.O. Box 11549 Atomic Safety and Licensing Columbia, South Carolina 29211 Board Panel U.S. Nuclear Regulatory Robert Guild, Esq.
Commission Attorney-at-Law Washington, D.C. 20555 P.O. Box 12097 Charleston, South Carolina 29412 l Chairman l Atomic Safety and Licensing Palmetto Alliance i
Appeal Board 2135 1/2 Devine Street U.S. Nuclear Regulatory Columbia, South Carolina 29205 Commission Washington, D.C. 20555 l
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l Jesse L. Riley Scott Stucky 854 Henley Place Docketing and Service Section Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Henry A. Presler Washington, D.C. 20555 Charlotte-Mecklenburg
- Environmental Coalition Carole F. Kagan, Attorney 945 Henley Place Atomic Safety and Licensing Charlotte, North Carolina 28207 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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