ML20028C303

Brief Opposing Wi Environ Decade 821220 Appeal of ASLB 821210 Special Prehearing Conference Order Denying Decade 820810 Petition to Intervene.Decade Willfully Failed to Attend Special Prehearing Conference.W/Certificate of Svc

ML20028C303
Person / Time
Site:	Point Beach
Issue date:	01/04/1983
From:	Churchill B SHAW, PITTMAN, POTTS & TROWBRIDGE, WISCONSIN ELECTRIC POWER CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20028C301	List: ML20028C300 ML20028C303
References
ISSUANCE-OLA2, NUDOCS 8301070312
Download: ML20028C303 (55)

Text

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e January 4, 1983 UNITED STATES C'E AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Acceal Board In the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ) Docket No. 50-266-OLA2

)

l (Point Beach Nuclear Plant, )

Unit 1). )

LICENSEE'S BRIEF IN OPPOSITION TO DECADE'S APPEAL OF LICENSING BOARD ORDER OF DECEMBER 10, 1982 l

l l

t SHAW, PITTMAN, POTTS & TROWBRIDGE Bruce W. Churchill Delissa A. Ridgway Counsel for Licensee i

l 8301070312 830104 PDR ADOCK 05000266 O PDR t j

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' TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......................................

1 INTRODUCTION...............................................

STATEMENT OF THE CASE......................................

ARGUMENT I. DECADE'S WILLFUL FAILURE TO ATTEND THE SPECIAL PREHEARING CONFERENCE................

II. DECADE'S CONTENTIONS.............................

A. Decade's Failure To Brief Its Appeal of Rulings On Contentions...................

B. Effect of Decade's Default..................

C. Contentions 1, 2 nd 4 Through 6.............

D. Contentions 3(a) Through 3(d) and 7.........

CONCLUSION.................................................

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6 TABLE OF AUTHORITIES CASES Page BPI v. AEC, 502 F.2d 424 (D .C . Cir. 1974)..................... 40 Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S.

519 (1978)............................................... 40 NUCLEAR REGULATORY COMMISSION CASES Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 N.R.C. 671 (1975)....................................... 9 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 N.R.C.

8 (1976)................................................. 21 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 N.R.C. 1400 (1982).8, 26, 28-31 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-270, 1 N.R.C. 473 (1975)............................ 33 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-344, 4 N.R.C. 207 (1976)............................. 9 Consumers Power Co. (Midland Plant, Units 1 and 2),

CLI-74-5, 7 A.E.C. 19 (1974), rev'd sub nom.

Aeschliman v. NRC, 547 F.2d 622 (D.C. Cir.

1976), rev'd and remanded sub nom. Vermont Yankee Nuclear Power Corp. v. NRC, 435 U.S.

519 (1978)............................................... 43 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-468, 7 N.R.C. 465 (1978)............................. 9 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C. 397 (1976).................... 34 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 A.E.C. 222................... 21 (1974)

Houston Lighting and Power Co. (Allens Creek Nuclear l

Generating Station, Unit 1) , ALAB-590, 11 N.R.C.

542 (1980)............................................ 40-42 Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1) , ALAB-424, 6 N.R.C. 122 (1977)................................................... 35

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4 p Page Northern Ina_ana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 A.E.C. 244 (1974).............................. 9, 19 Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-401, 5 N.R.C. 1180 (1977)................................. 9 -

Pennsylvania Power and Light Co. (Susquehanna .

Steam Electric Station, Units 1 and 2),

ALAB-613, 12 N.R.C. 317 (1980)........................... 42 i

Philadelohia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-165, 6 A.E.C. 1145 (1973)..................................... 11 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-566, 10 N.R.C. 527 (1979)..................................... 16 Public Service Co. of Indiana .(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-393, 5 N.R.C. 767 (1977)....................................... 9 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2) , ALAB-459, 7 N.R.C. 179 (1978)....................................... 9 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, r 7 N.R.C. 313 (1978)...................................... 34 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-295, 2 N.R.C. 668 ( 19 7 5 ) . . . . . . . . . . . . . 9 Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2) , ALAB-394, 5 N.R.C. 769 (1977)...................................... 35 Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 N.R.C.

43 (1981), aff'd sub nom. Township of Lower Alloways Creek v. Public Service Electric and Gas Co., 587 F.2d 732 (3d Cir. 1982)..................... 33 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B), ALAB-367, 5 N.R.C.

92 (1977)............................................ 34, 35 i Wisconsin Electric Power Co. (Point Beacn Nuclear Power Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277 (1982).................................... 24, 34

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Page Wisconsin Electric Power Co. (Point Beach Nuclear Power Plant,. Unit 1), ALAB-696, 16 N.R.C.

(October 1, 1982).................................. 34 REGULATIONS 10 C.F.R. S 2.707......................................... 35, 36 10 C.F.R. S 2 . 714 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7 10 C.F.R. S 2 . 714 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 , 38-42, 46 10 C.F.R. S 2.751a (a) (1) , (2) and (4)......................... 21 10 C.F.R. S 2 . 7 51 a ( a ) ( 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 MISCELLANEOUS 37 Fed. Reg. 15127 (July 2 8 , 19 7 2 ) . . . . . . . . . . . . . . . . . . . . . . . . 21, 41 46 Fed. Reg. 28533 (May 27, 1981).............................. 8 l

l 47 Fed. Reg. 30125 (July 12, 1982)......................... 2, 37 47 Fed. Reg. 37010 (August 24, 1982)........................... 3 47 Fed. Reg. 46915 (October 21, 1982)...................... 5, 11 i

l 47 Fed. Reg. 47954 (October 28, 1982....................... 5, 11 l " Point Beach Nuclear Plant Unit No. 1, Steam l Generator Repair Report, August 1982"............. 3, 43, 45 l

" Description of Steam Generator Repair, Point Beach Nuclear Plant Unit 1"............................... 3 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ) Docket No. 50-266-OLA2

)

(Point Beach Nuclear Plant, )

Unit 1) )

LICENSEE'S BRIEF IN OPPOSITION TO DECADE'S APPEAL OF LICENSING BOARD ORDER OF DECEMBER 10, 1982 INTRODUCTION Wisconsin's Environmental Decade, Inc. (" Decade") has ap-pealed 1/ from the Atomic Safety and Licensing Board's ("Licens- e ing Board") "Special Prehearing Conference Order" (" Order")

dated December 10, 1982. In that Order, the Licensing Board found Decade in default of its hearing obligations for will-fully failing to attend the Special Prehearing Conference scheduled for the sole purpose of considering Decade's petition f fo: a hearing in this proceeding. The Licensing Board there-fore dismissed Decade's petition. In addition, the Licensing Board dismissed the petition because it found no relevant contention for which Decade had adequately stated a basis, i 1/ See " Decade's Notice of Appeal From Special Prehearing I Conference Order Concerning Denial of Petition to Intervene" and " Decade's Brief In Support Of Its Appeal From Special Prehearing Conference Order Concerning Denial of Petition To Intervene" (" Decade's Brief"), dated December 20, 1982.

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o This brief constitutes the response of Wisconsin Electric Power Company (" Licensee") in opposition to Decade's appeal.

As discussed below, Licensee submits that the order dismissing Decade's petition should be sustained because, alternatively:

1. The Licensing Board properly dismissed Decade's petition for Decade's willful failure to attend the Special Prehearing Conference; and

2. The Licensing Board properly dismissed Decade's petition for Decade's failure to file a relevant contention with basis; and

3. That part of the appeal excepting to the Licensing Board's Order ruling on Decade's proposed contentions is waived for failure to brief the relevant issues.

STATEMENT OF THE CASE Licensee is the holder of Facility Operating License DPR-24 for Point Beach Nuclear Plant, Unit 1. By letter dated May 27, 1982, Licensee notified the Commission of its plans to replace the two steam generators in Unit 1 and informed the Commission of its determination that the proposed repair program did not require prior NRC approval. The Staff deter-mined that a license amendment would be required and, by letter dated July 6, 1982, so informed Licensee. In addition, the Staff published a Federal Register notice providing an opportu-nity for members of the public to petition to intervene in the proceeding. See 47 Fed. Reg. 30125 (July 12, 1982). Decade's

" Petition For Leave To Intervene and Petition For Hearing" --

the only petition filed in this proceeding -- was submitted on August 10, 1982. On August 18, 1982; Licensee hand-delivered

4 to Decade copies of the two reports that had recently been submitted to the Staff in support of Licensee's amendment request.2/ Tr. 26.

Also on August 18, 1982, a Licensing Board was established "to rule on petitions for leave to intervene and/or requests for hearing and to preside over the proceeding in the event that a hearing is ordered." 47 Fed. Reg. 37010 (August 24, 1982). The Licensing Board in this proceeding is composed of the members of the Licensing Board in a companion case, which was initiated by Decade's July 1981 petition for a hearing on Licensee's request for a license amendment authorizing "sleev-ing" of degraded steam generator tubes at Point Beach Units 1 and 2.

Licensee and the Staff filed timely responses to Decade's August 10, 1982 petition,3/ noting numerous deficiencies in the petition. In early September 1982, the Licensing Board directed Decade to file any supplements to its petition, in 2/ " Description of Steam Generator Repair, Point Beach Nuclear Plant Unit 1" (submitted to the Staff on July 22, 1982) l and " Point Beach Nuclear Plant Unit No. 1, Steam Generator

! Repair Report, August 1982" (" Steam Generator Repair Report")

(submitted to the Staff on August 9, 1982). See Letter, C.W.

Fay (Licensee) to P. Anderson (Decade), dated August 16, 1982.

As indicated in that letter, the latter report supersedes the first in its entirety.

3/ See " Licensee's Answer To Decade's Petition For Leave To Intervene and Petition For Hearing" (August 24, 1982) and

" Response of The NRC Staff To Petition For Leave To Intervene Filed By Decade" (August 30, 1982).

, response to the other parties' comments on Decade's standing, by September 20, 1982. Tr. 3. On September 27, 1982, the Li-censing Board convened an on-the-record telephone conference, for the purpose of clarifying the status of the case (including the status of the required amendments to Decade's petition, which still had not been filed at that time 4/) and to discuss the scheduling of events leading to a Special Prehearing Conference. Tr. 2-3. In the course of that conference call, the Licensing Board expressly informed Decade of the Commis-sion's requirements for admissible contentions, with particular reference to the " basis" requirement where (as here) extensive detailed information has been submitted in support of the license amendment application. Tr. 33-34.

In an October 6, 1982 on-the-record telephone conference in the companion sleeving proceeding, the Licensing Bonrd scheduled an adjudicatory session in Wisconsin to commence Wednesday, November 17 and continue through Saturday, November 20, 1982 (if necessary). The Licensing Board noted that the session would begin as an evidentiary hearing in the related sleeving proceeding, to be followed by a Special Prehearing Conference in the instant proceeding, with contentions in the i

instant proceeding to be filed on November 5, 1982. OLA1 4/ " Decade's Amendment To Petition For Leave To Intervene and Petition For Hearing" was untimely filed September 28, 1982.

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Tr. 1350-51. In addition, the Licensing Board scheduled a session for the receipt of limited appearance statements in both cases for the evening of November 17, 1982. In noticing the hearings, the Licensing Board provided that hearing sessions would be held "from 9 am to 5 pm daily, with addi-tional sessions if required." See 47 Fed. Reg. 46915 (October 21, 1982); 47 Fed. Reg. 47954 (October 28, 1982).

" Decade's Contentions Concerning Steam Generator Replace-ment" were filed on November 5, 1982. On November 17, the Li-censing Board commenced evidentiary hearings in Milwaukee in the companion sleeving case, sitting from 9:00 a.m. until 4:00 p.m. The Licensing Board then traveled to Two Rivers, Wisconsin -- a drive of about one and a half hours -- where it heard limited appearances from 8:00 p.m. to 9:00 p.m., then drove back to Milwaukee. The-Licensing Board reconvened the evidentiary hearings in the sleeving case in Milwaukee the next morning (November 18) at 9:00 a.m., and sat until approximately 6:00 p.m. that day, at which time all parties had rested their cases and a schedule for the submital of proposed findings had been established. The Licensing Board had concluded by i

thanking all parties for their participation in the sleeving proceeding, observing that it had been "a long day" and noting

! that it would see all parties "in the morning [of November 19]

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l at the special prehearing conference (in the instant pro-ceeding) at 9:00 a.m." OLA1 Tr. 1880.

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3 Just as the Licensing Board prepared to adjourn for the evening, Decade's representative, Mr. Peter Anderson, Co-Director of Decade,. informed the Licensing Board for the first time that Decadeihad a meeting scheduled with the office of the Governor-elect at 11:00 a.m. on November 19 which might conflict with Decade's obligation to attend the Special Prehearing Conference.5/ Mr. Anderson requested that the Li-censing Board reconvene for the Special Prehearing Conference at 8:00 p.m. on November 18. The Licensing Board observed that the parties would bc " fresher" in the morning, and that the hearings had long been scheduled to last at least three days.

Accordingly, the Licensing Board ruled that it would be "more orderly and more proper" to convene the Special Prehearing Conference on the morning of November 19, and informed Mr. Anderson that the Special Prehearing Conference would proceed as scheduled. The Licensing Board expressly admonished Mr. Anderson that, if Decade were not represented at the Special Prehearing Conference, it might well be found in default in the instant proceeding. See OLA1 Tr. 1881-83, bound into the transcript of the instant proceeding following Tr. 43.

5/ Mr. Anderson repeatedly asserts that he learned of this meeting for the first time at approximately 4:30 p.m. on November 18, when he telephoned his office 'during a recess from the OLA-1 proceeding." OLA1 Tr. 1882, ff. Tr. 43; Decade's Brief, at 3. The transcript of that proceeding reveals that the last recess of the day in that proceeding occurred from 3:47 p.m. to 4:00 p.m. See OLA1 Tr. 1808.

9 The Licensing Board convened the Special Prehearing Con-ference at 9:00 a.m. on November 19, 1982, as scheduled.

Noting the absence of Mr. Anderson, the Licensing Board promptly recessed for ten minutes, to await a representative of Decade. At 9:10 a.m., the Licensing Board reconvened the Special Prehearing Conference, and proceeded to consider Decade's proposed contentions, in the absence of any represen-tative of Decade, with the Board itself assuming the role that Decade would have played had it elected to attend the Confer-ence. See Tr. 44-97; Order at 3, 4. The Licensing Board then considered the imposition of sanctions, including dismissal, for Decade's willful failure to attend the Special Prehearing Conference. Tr. 44,97-113. The Special Prehearing Conference was adjourned at about 11:15 a.m. on November 19.

On December 10, 1982, the Licensing Board issued its Order dismissing Decade for (a) its willful failure to attend the Special Prehearing Conference scheduled to consider its peti-tion for hearing and (b) its failure to file any relevant contention for which it adequately stated a basis. It is from this Order that Decade appeals.

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i ARGUMENT I. DECADE's WILLFUL FAILURE TO ATTEND THE SPECIAL PREHEARING CONFERENCE Decade asserts that the Licensing Board erred in (a) ,

1 denying Decade's request to reschedule the Special Prehearing I l

Conference for the eve of November 18, for Mr. Anderson's con- i i

venience, and (b) dismissing Decade's petition for intervention as a sanction for Decade's failure to send any representative to the Special Prehearing Conference scheduled for the sole purpose of considering Decade's petition for a hearing in this proceeding. See Decade's Brief, at 4-8.6/

Scheduling is a matter of Licensing Board discretion which will not be interfered with absent a "truly exceptional 6/ Decade's brief on these issues is scanty. Decade does little more than recite the facts of record (supplemented in a few instances by additional facts not of record). Most of what little argument is presented addresses the exercise of the Licensing Board's discretion in denying Decade's request to commence the Sp;cial Prehearing Conference on the evening'of November 18, 1982. Decade virtually ignores the ultimate ques-tion presented by this part of its appeal -- its assertion that the sanction imposed by the Licensing Board was " unreasonable, discriminatory and unduly harsh." Decade's Brief, at 4.

Decade references no case law or cther authority in this sec-tion of its brief. Particularly conspicuous is Decade's fail-i ure to address the Commission's " Statement of Policy on Conduct l of Licensing Proceedings," 46 Fed. Reg. 28533 (May 27, 1981) l and Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 N.R.C. 1400 (1982), which were the foun-dation for the Licensing Board's Order on these issues. See Order, at 2-7.

situation." Public Service Co. of Nr.w Hampshire (Seabrook Statica, Units 1 and 2), ALAB-295, 2 N.R.C. 668 (1975);

Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 A.E.C. 244, 250 (1974). See also Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant

. Separations Facility), ALAB-296, 2 N.R.C. 671 (1975); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-344, 4 N.R.C.

207 (1976); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-393, 5 N.R.C. 767 (1977); Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-401 5 N.R.C. 1180 (1977).

Thus, a scheduling decision will be reversed only upon a finding that a Licensing Board abused its discretion by setting

, a schedule that deprived a party of procedural due process.

Public Service Co. of Indiana (Marble Hill Nuclear Generating I Station, Units 1 and 2), ALAB-459, 7 N.R.C. 179, 188 (1978);

Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-468, 7 N.R.C. 465, 468 (1978).

l In the instant case, the Licensing Board was well within its discretion in denying Decade's last minute request to reschedule the Special Prehearing Conference to obviate a potential conflict for Decade's representative, Mr. Anderson.

l As the Licensing Board noted (see Order, at'2), Decade provided very little information to support its request, and even refused to inform the Licensing Board of the specific nature of

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the meeting alleged to conflict with the scheduled Special i Prehearing Conference:

I (Mr. Anderson] don't think it is appropri-ate for me to discuss exactly what we're doing, but the question is the transition that is going on with the Governor's office in Wisconsin * * * .

OLA1 Tr. 1883, ff. Tr. 43. The only other representations made in support of Decade's request were its assertions that Mr. Anderson first received notice of the meeting at 4:30 p.m.

on November.18 (OLA1 Tr. 1882, ff. Tr. 43), that the 11:00 a.m.

meeting with the office of the Governor-elect was "the only option" given to Decade (OLA1 Tr. 1883, ff. Tr. 43), and that Decade does not "have a set of lawyers for every proceeding and a set of lobbyists for every case" (OLA1 Tr. 1882, ff. Tr. 43).

Even assuming the truth of Decade's assertion that it had first learned of the meeting with the office of the Governor-elect on the afternoon of November 18 (see n.5, supra), Decade's argu-ments before the Licensing Board in support of its request to reschedule the Special Prehearing Conference fall far short of i the showing necessary to support such a request. See Order at 5.

In ruling on Decade's request that the Special Prehearing Conference be rescheduled for Mr. Anderson's convenience, the 1

! Licensing Board was entitled to consider such factors as:

(a) the date the conflict developed; (b) the efforts made to resolve it; (c) the availability of alternate counsel;

, (d) public and private interest considerations; (e) the positions of the other parties; and (f) the proposed alternate date.

Cf. Philadelphia Electric Co. (Peach Bottom Atomic Power Sta-tion, Units 2 and 3), ALAB-165, 6 A.E.C. 1145 (1973) (estab-lishing required elements for motion to reschedule calendared oral argument on ground of conflicting obligation of counsel).

Clearly, Decade failed to adequately address these factors in arguing its request before the Licensing Board. Even con-sidering the additional information presented in Decade's brief here, Decade still has not made a showing which would have warranted rescheduling the Special Prehearing Conference.7/

The case against Decade on the first factor is compelling.

The publicly-noticed evidentiary hearings in the related sleeving proceeding and the Special Prehearing Conference in this proceeding had been scheduled for November 17-20, 1982, from 9:00 a.m. to 5:00 p.m. (with extra sessions if necessary) since October 6, 1982. c3e OLA1 Tr. 1350-51; 47 Fed. Reg.

. 46915 (October 21, 1982); 47 Fed. Reg. 47954 (October 28, 1

l l 1982). In contrast, Decade asserts that its meeting with the 7/ In reviewing the Licensing Board's exercise of its discre-tion in denying Decade's request to reschedule the Special Prehearing Conference, fairness requires that the Appeal Board consider only the scant facts provided by Decade in its argu-ment before the Licensing Board in support of its request.

This is particularly true since Decade refused to provide addi-tional information about its scheduling conflict when the Licensing Board inquired. See OLA1 Tr.1883, ff. Tr. 43.

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Office of the Governor-elect on November 19 was not set until the afternoon of November 18. OLA1 Tr. 1882, ff. Tr. 43; Decade's Brief, at 3. Thus, Decade's obligation to attend the Special Prehearing Conference long predates its agreement to

meet with the office of the Governor-elect. Assuming that, as i discussed above, Decade first learned of the meeting with the i

office of the Governor-elect at 4:30 on the afternoon of November 18, it is unclear whether Decade's delay until 6:00 p.m. in informing the Board of that meeting precluded any i

opportunities for Decade to secure other representation for l either the meeting or the Special Prehearing Conference, or

! even to reschedule the meeting. It would appear that Decade simply assumed that the Licensing Board and the other parties

would agree to hold the Special Prehearing Conference on the i

night of November 18, to accommodate Mr. Anderson, even though

! the proceedings had been scheduled to last at least three days.

i In any event, even assuming that Decade was not remiss in waiting until 6:00 p.m. on November 18 to inform the Licensing i

i Board of its potential conflict, the Licensing Board was not required to automatically reschedule its duly noticed pro-ceeding to accommodate a meeting with the office of the -

Governor-elect, particularly where -- as here -- the petitioner refused to specify the nature and subject matter of the meeting. The few additional facts which Decade now supplies as to the nature of the meeting (see Decade's Brief, at 6) add

little to its case. The Licensing Board and the other parties, and now the Appeal Board, are entitled to more than bare representations that unspecified appointments to two state agencies "were being discussed and made in the period when the conflicting meeting was scheduled."

The second factor -- efforts made to resolve the conflict

-- also cuts against Decade. As discussed above, Decade's sole representation on this factor in its argument to the Licensing Board was its comment that the 11:00 a.m. meeting on November 19 was "the only option" given to Decade. OLA1 Tr. 1882, ff.

Tr. 43. This generalized assertion falls far short of the i

specificity to which the Licensing Board and the other parties were entitled. As the Licensing Board correctly observed:

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• Decade owed us, at the very least, a statement that the [ sic; office of the]

governor-elect had been informed about the scheduling conflict and had been unable to make a different time available.

Order, at 6. Interestingly, even in its brief here, Decade does not assert that the office of the Governor-elect was informed of the scheduling conflict but was unable to make some other time available. Decade asserts only that "If we [ Decade]

did not attend that conflicting meeting at time provided, it is unlikely that we could have been rescheduled before those appointments were tentatively determined." Decade's Brief, at 6 (emphasis supplied). See also Decade's Brief, at 8.

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The third. factor -- the availability of alternato counsol (or an alternate representative) -- also weighs heavily against Decade. In argument before the Licensing Botrd, Decade's sole argument on this factor was an acerbic observation that it does not "have a set of lawyers for every proceeding and a set of lobbyists for every case." OLA1 Tr. 1882, ff. Tr. 43.

However, as the Licensing Board pointed out:

We note, as the Appeal Board has before us, that Decade is a substantial organization, with a staff of 10 individuals (including two co-directors, one of which'is a lawyer that appeared in the companion proceeding). It has over 50,000 members. Tr. 100; see also ALAB-666 at 279. Nevertheless, Decade * **

never commented on why it could not be represented by some other individual or why Peter Anderson, Decade's representative, was personally needed by the [ sic; office of the]

governor-elect.

1 Order, at 5. Indeed, Decade maintains a district office in Milwaukee only blocks from where the Special Prehearing Confer-ence was held. See Decade's " Petition For Leave To Intervene and Petition for Hearing" (August 10, 1982), at 1; Letterhead of Letter, P. Anderson (Decade) to B. Churchill (Counsel for Licensee), dated October 18, 1982.8/

Decade asserts that the Licensing Board would require "a second Decade staff member to have duplicated all of the work 8/ The referenced Petition actually asserts that Decade has some 64,000 members (Petition, at 2), and the referenced let-terhead indicates a staff of 12, plus an additional 11 persons on its Board.

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of its official representative so as to be prepared to stand in at any time." Decade's Brief, at 8. This is simply untrue.

The Licensing Board merely observed that Decade had failed to explain why it could'not be represented at the Special Pre-hearing Conference by some individual other than Peter Anderson, and why Peter Anderson was personally needed at the meeting with the office of the Governor-elect. With respect to the Special Prehearing Conference, even acknowledging the

" exceedingly complex" nature of NRC proceedings (Decade's Brief, at 7), it is beyond cavil that it is easier for one representative to " stand in" for another at a relatively early stage of a proceeding (e.g., here, where Decade had filed little more than its contentions) than at a later stage (e.g.,

after extensive discovery has been conducted). In any event, Decade did not elect to send a less knowledgeable representa-tive to the Special Prehearing Conference -- Decade elected to send no representative, even though it was expressly warned of the potential consequences of such a default. Even if it were true, as Decade implies, that no representative of Decade other than Peter Anderson could have contributed to the Special Pre-hearing Conference, perhaps the matters to be discussed with the office of the Governor-elect were not so " exceedingly complex" and could have been entrusted to another representa-tive of Decade. Given the paucity of information on the record as to the nature of the meeting with the office of the Governor-elect, and Decado's failure to address the availability of other counsel / representatives, neither the Appeal Board nor the Licensing Board nor the other parties can independently evaluate the indispensability of Mr. Anderson to that meeting.

Significantly, this is not the first time Decade's representative has complained about being " spread too thin."

Throughout the companion sleeving proceeding, and now in the instant case, Decade's representative, Mr. Anderson, has repeatedly objected that he cannot proceed concurrently in multiple forums and cases. See, e.g., Decade's Brief, at 7; Tr. 25-26; OLA1 Tr. 1345-47; " Wisconsin's Environmental Decade's Exceptions and Brief In Support of Exceptions To The Initial Decision of The Atomic Safety and Licensing Board" (November 19, 1982), at 5-6 (filed in the sleeving case).

Indeed, when Mr. Anderson recently objected to scheduling events in the sleeving proceeding concurrently with the filing of contentions in the instant proceeding, the Licensing Board heard argument on the relevance of parties' obligations in other cases in establishing and adhering to schedules in a particular case. In the course of that discussion, counsel for Licensee noted that Commission precedent does not countenance neglect of one proceeding to attend to obligations in another,9/ and suggested that Mr. Anderson obtain assistance in 9/ See generally, e.g., Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-566, 10 (Continued Next Page) 1 formulating contentions from some other member of Lacede (Tr. 35-36) -- a suggestion which Mr. Anderson apparently did not take to heart. In these circumstances, Mr. Anderson's asserted scheduling conflict can fairly be considered at least i

partly of his own making; one should not be permitted to make i

himself indispensable to multiple proceedings, then insist that

each be scheduled to his convenience.

7 The remaining three factors -- public and private interest considerations, the positions of the other parties, and the

proposed alternate date -- may be reviewed together. Decade made no representations, either before the Licensing Board or in its brief, as to how these factors weighed in favor of its

~

request. However, as the Licensing Board pointed out, Decade requested that the Special Prehearing Conference in this proceeding be commenced on the evening of the conclusion of two full days of evidentiary hearings in the sleeving proceeding, including a limited appearance session the previous night in another city. See Order, at 2. The Licensing Board noted:

(I]f the parties had been required to proceed

[with the Special Prehearing Conference] on the evening of the 18th, pursuant to Decade's motion, neither they nor the Board would have (Continued)

N.R.C. 527, 530 (1979) ("any individual undertaking to play an active role in several proceedings which are moving forward simultaneously is apt to find it necessary from time to time to i expend extra effort to meet the prescribed schedules in each case").

1 l

i

r r

, been as fresh of mind and body as would have -

been possible on the next morning. Although ,

mental processes can be made to function with ,

some efficiency after extended hearing hours, there is inevitably some loss of efficiency;  % y that must be weighed against the importance I _(

of the need for proceeding immediately.

Additionally, we note that the next morning's proceeding took about two hours, even with -

fresh parties and without Decade's partici-  % i

• pation. There is, therefore, no assurance ,"

that the Conference could have been concluded '

• Thursday evening, even had we tried. ' hss"

i Order, at 3-4. See also OLA1 Tr. 1881, ff. Tr. 43. Ce rtai'nly,,

c w w counsel for Licensee (and, no doubt, Staff counsel as well as ,'

\

the Licensing Board) appreciated the opportunity to " change F x

hats" overnight from the sleeving proceeding to the instant proceeding, and used the time profitably to review relevant materials, including Decade's proposed contentions and possible s t

arguments on those contentions. (And, as the Licensing Board a further observed, to have rescheduled the Special Prehearing , ,

Con;erence for a later date would have required the Licensing s - .

y3 s

! Board to return to Milwaukee at public expense. Order, at 4).

g Thus, the remaining three factors also contraindicated grant *in'gN g i,' b ~-

Decade's request. .

Under the circumstances presented here -- where Decade was s ,,

'\

s

, 'b % 1 given full notice that the Special Prehearing Conference would 1-

*i

! proceed with or without it, but that its petition might be t

I dismissed if it failed to attend, and it nevertheless refused /i (

l to send any representative to the Conference -- Decade cannot , ,

t t +

s

.~_,

3 l make a showing that the Licensing Board's denial of Decade's sj g ,

( ' +

g / ,

\

, f

x l.

b, .

request-to reschedule the Special Prehearing Conference for the convenience of Mr. Anderson constituted a denial of due process.

American jurisprudence has long passed the

'% point where a party * * * -may refuse to , , , , _ _ _ .

e; participate in~i care because thc presidi'ng official ruled in a manner it did not like.

There are appropriate ways of preserving objections to such rulings; going home is not one of them. 'A party may not be heard

, to complain that its rights were unjustly 1

abridged after "[h]aving thus purposefully

, , , , refused to participate."

-[ , Northern Indiana Public Service Co. (Bailly Generating Station, 6

Nucfcar-1), ALAB-224, 8 A.E.C. 244, 251 (1974) (citations o

. ,1 yomittid).

~ '

In'. summary, Decade completely failed to make the required 1,, , ,_

showing -- before the Licensing Board, or even before the , '

g . s

, Appeal) Board - ,which w'uld p have warranted rescheduling the

'_ 's' N

- Special'Prehearing Ccnfe'rence for the convenience of

-Mr. Anderson., Particularly given the absence of convincing

~ '

', , . 7 shdea ngs by Decade that (a) Decade's meeting with the office of m .* ,

4 the' Governor-elect s c,ould not have been rescheduled; (b)

+4 s lc Mr. Anderson was indi,spensable' to,'that meeting; and (c) no s

,,.\

representative of' ecade other th!an Mr. Anderson could contri-

$ - sq i ~ bute to the Special Prehearing Conference, '

the Licensing Board

>s .a was well within its discretion in denying Decade's request to com$ence she Special Prehearing Conference on the evening of

,*. \s s .

15 November 19, 1982. s -

=

s

(*- 3 ,

I k  % *- k

% 5  % i 4

"4 y  %,

. ._ - . -- . ~ ..

Tbc Licensing Board was similarly well within its discre-tion in dismissing Decade's petition for Decade's failure to attend the scheduled Special Prehearing Conference. Decade concedes, as it must, that it was fully advised that its

failure to attend the Conference could result in dismissal.

Decade's Brief, at.4; OLA1 Tr. 1882,'ff. Tr. 43. Thus, as the Licensing Board observed, Decade's actions were'" willful" 1

(Order, at 2), and an appropriate sanction was required. In

! selecting a sanction, the Licensing Board properly considered I

the factors outlined in the Commission's " Statement of Policy

on Conduct of Licensing Proceedings," 46 Fed. Reg. 28533'(May 27, 1981), including

2 i the relative importance of the unmet obliga-tion, its potential for harm to other parties or the orderly conduct of the proceeding,

! whether-its occurrence is an isolated inci-

> dent or a part of a pattern of behavior, the importance of the safety or environmental

concerns raised by the party, and all of the

! circumstances. ,

i These factors are discussed briefly below, seriatim.

Importance of the Unmet Obligation i

j As the Licensing Board correctly noted, the-Special i

l Prehearing Conference is an integral part of an NRC proceeding (Order, at-3); indeed, one of the primary purposes of the l

-Special Prehearing Conference is to "[c]onsider all interven-tion petitions to allow the presiding officer to make such * *

!

• determination as to the parties to the proceeding, as may-be t

j  :

f I

- - ~ -

-,,-y y -,.,,,.,_...,we,._,#,-err-- -v -e - - = = - - - - - ' - - - ~ - - - --i----v+-

% e w-'t-w*-- + = ' - ~ ' - *--'vv - - - - ,---~+w ' " --,ev v - v g'

, appropriate." 10 C.F.R. $ 2.751a(a)(3). Moreover, well before the hearing sessions were convened in Milwaukee, the Licensing Board expressly advised all parties of the importance it attached to the Special Prehearing Conference, with particular reference to Decade's obligations at the Conference. See Order at 3; Tr. 33-34. The Special Prehearing Conference is espe-cially important where, as here, a hearing is not mandatory.

As the Appeal Board has admonished the licensing boards, "the utmost care" must be exercised at the Special Prehearing Conference stage to assure that the 'one good contention rule' is met in such a situation since, absent successful interven-tion, no hearing need be held. See Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 N.R.C. 8, 12 (1976). See also Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 A.E.C. 222, 226 at n.10 (1974).

The Special Prehearing Conference is also intended to, inter alia, permit identification of the key issues in the proceeding, take any steps necessary for the further identifi-cation of the issues, and establish a schedule for further actions in the proceeding. See 10 C.F.R. 6 2.751a(a)(1), (2) l and (4). See also 37 Fed. Reg. 15127, 15128 (July 28, 1972) l (" Definition of the matters in controversy is widely recognized

as the keystone to the efficient progress of a contested

, proceeding"). These are all matters of grave importance which l

21-

-w -,- -, w a .- -----e - -~s n .- - . - , - - - - - . - - - - + - - - -

must necessarily be determined to even get a proceeding "off the ground"; in large measure, the scope and pace of the entire proceeding -- indeed, whether a hearing will even be held --

are determined by the Special Prehearing Conference. In this respect, attendance at the Special Prehearing Conference is truly one of the most important obligations visited upon a petitioner invoking the NRC hearing procedure. The willful refusal of a petitioner to send a representative to fulfill such a fundamental obligation weighs heavily in favor of the imposition of the sanction of dismissal.

Potential Harm to Other Parties or the Conduct of the Proceeding Decade presumptuously asserts that "the real harm arising out of the Decade's absence from the prehearing conference attaches to its own interests, not to the Licensee, for the opposing counsel was able to aggressively advance his position without rebuttal from the intervenor." Decade's Brief, at 5.

This is simply not the case. As the Licensing Board pointed out, Decade's absence from the Special Prehearing Conference perverted the orderly conduct of the Conference, forcing the i

Licensing Board to assume the role Decade would have played had it elected to send a representative to the Conference. Thus, i

(

the Licensing Board was forced to abandon its proper role of neutrality and play " devil's advocate," exploring possible meanings of Decade's contentions. This handicapped Licensee

,+ , - - - . -- -

9 and the Staff, and conferred an unfair advantage on Decade.

Order, at 4.

In addition, as the Licensing Board noted, "if Decade had been at the_ conference, the parties might have become better informed of its specific concerns and * *

• presented more specific rebuttal. They were therefore deprived of an oppor-tunity to make the contentions more specific and, even, to

persuade Decade to drop some of the contentions voluntarily."

Order, at 4. Further, Decade's absence from the Special Prehearing Conference effectively prevented the parties frcm reaching agreement on a schedule for further actions in the proceeding (one of the important purposes of the Conference, as discussed above).

Nor was the harm attendant to Decade's failure to attend the Special Prehearing Conference limited to Licensee and the Staff. The Licensing Board emphasized that:

In [the Special Prehearing Conference l

in) this case, there were two occasions where we would have turned to intervenors [ sic; petitioners] to comment on applicant's statements.

! **

• The fact that intervenors [ sic; l petitioners] were not there to help us

( when we needed help, and the additional fact that the Board was placed in the position of trying to interpret Decade's

! contentions for itself without any oral j assistance from Decade, seriously detracts from an important phase of this proceeding.

4

. Order, at 3. As the Appeal Board well knows, the opportunity to orally question litigants is valued highly by decision-makers. See, e.g., Wisconsin Electric Power Co. (Point Beach Nuclear Power Plant', Units 1 and 2), ALAB-666, 15 N.R.C. 277 (1982). Like the Appeal Board in the companion sleeving proceeding, the Licensing. Board in this case was deprived of the opportunity to question a representative of Decade about the organization's allegations. See Order, at 4-5. Thus, the .

magnitude of the harm to the other parties, the Licensing Board, and the orderly conduct of the proceeding also weigh heavily in favor of the imposition of the sanction of dismis-sal.

Isolated Event or Part of Pattern of Behavior Decade boldly maintains that it "had met all of its prior obligations to the Board and parties," citing page 4 of the Licensing Board's Order.10/ Decade's Brief, at 5. While 10/ Decade further asserts that an examination of its filings reveals "a high degree of workmanlike professionalism."

! Decade's Brief, at 5. To the contrary, as discussed herein (see n.6, supra, and section II.A, infra), Decade's Brief now before the Appeal Board is seriously deficient in several respects. Similarly, though Decade should by now be a seasoned NRC intervenor, its " Petition For Leave To Intervene and Petition For Hearing" (August 10, 1982) in this proceeding was found to be deficient. See Tr. 3. The record in the companion sleeving proceeding is also replete with Decade filings of like quality. For example, the Appeal Board in the sleeving pro-ceeding chastised Decade for its inadequate brief (see n. 12, infra), and the Licensing Board in that proceeding criticized Decade for its failure to reasonably organize its response to i the'other parties' motions for summary disposition. See (Continued Next Page) i

j ,

Licensing Board did note that, in general, in both this proceeding and the companion sleeving proceeding, it had found Decade to be "a cooperative party that has not engaged in l objectionable tactics," the Licensing Board went on to note i

that Decade's nonappearance at the Special Prehearing Conference "is not an isolated event," pointing to Decade's failure to attend scheduled oral argument before the Appeal Board in the sleeving proceeding. Order, at 4-5.

1 In any event, the Licensing Board demonstrated admirable charity in characterizing Decade as generally cooperative.

Even in the case at bar (in which there have been very few i

required filings to date), the record reflects that Decade willfully failed to timely amend its petition for intervention to cure defects noted by Licensee and the Staff, as ordered by the Licensing Board. See Tr. 3; n.4, supra. And the record in the sleeving proceeding is replete with other examples of Decade's failure to comply with various Licensing Board orders.

For example, Decade failed to file its pivotal " Motion Concern-i ing Litigable Issues" on the schedule established by the l Licensing Board. See " Licensee's Response To Decade's Motion i

Concerning Litigable Issues" (August 9, 1982), at 6-7, and "NRC l'

(Continued)

" Memorandum and Order (Concerning Summary Disposition Issues)"

l (October 1, 1982), slip op. at 5-6 (filed in the related sleev-i ing proceeding).

f 1

n-----m.we,, -<-me-, ,n,- - , - . . - , , , , . . , , . . _ _ . . . , , , , . . _ , - , , _ _ . . _ . , , 4:..._.,_ _ .,_, ,,, ,. ., , . _ , _ , _e _,

. Staff's Response to Decade's Motion Concerning Litigable Issues" (August 16, 1982), at 2 n.1, (both filed in the companion sleeving proceeding). And, more recently, Decade 4 admittedly disregarded a Licensing Board order to give Licensee and the Staff 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />' notice of exhibits proposed for use at

> the evidentiary hearing on sleeving, instead giving less than 36 hours4.166667e-4 days <br />0.01 hours <br />5.952381e-5 weeks <br />1.3698e-5 months <br />' notice. See OLA1 Tr. 1397-98, 1409-10. And, most recently, Decade has disregarded a Licensing Board order to j file its proposed findings of fact in the sleeving case on December 30, 1982 (see OLA1 Tr. 1877), instead filing a five-page " Statement of Inadequate Record" (December 30, 1982).

Thus, Decade's record, both in this proceeding and in the i

companion sleeving case, does not militate in favor of leniency in determining a sanction for its failure to attend the Special Prehearing Conference.

The Importance of Safety and Environmental Concerns Raised by Party As the Appeal Board has recently observed, this factor is of more importance during the later stages of a proceeding, I when the contentions have been fleshed out and the parties have submitted testimony. Where, as here, there is nothing but the bare contentions upon which to rely, this factor is of much lesser weight, and is not at all decisive. See Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

ALAB-678, 15 N.R.C. 1400, 1419 (1982).

In any event, the Licensing Board reviewed each of Decade's contentions, concluding that each was without basis, and stating its conviction that "none of [ Decade's] contentions rained any important safety or environmental concern." The Licensing Board further noted that the Staff is vigorously pursuing its own concerns, and determined that "no substantial additional protection would be afforded to the public because of a hearing on Decade's contentions." Order, at 5. Thus, if this factor is considered at all, it too supports the dismissal of Descade in the circumstances presented.

Other Circumstances i

The final factor to be addressed'in considering sanctions

pursant to the Commission's Policy Statement is "all of the circumstances." The circumstances surrounding Decade's failure i to send a representative to the Special Prehearing Conference have been briefed exhaustively above, and need not be re-recited in full here. Suffice it to note once more that Decade refused to inform the Licensing Board of the specific nature of the meeting alleged to conflict with the Special Prehearing Conference (OLA1 Tr. 1883, ff. Tr. 43), was advised by the Licensing Board in no uncertain terms that its petition might well be dismissed if it failed to attend the Conference (see Decade's Brief, at 4; OLA1 Tr. 1882, ff. Tr. 43), and nevertheless willfully refused to send any representative to

, th,e Conference.- 14oreover, Decade did not apprise the Licensing Board or any of the parties that it definitely would not be represented at the Special Prehearing Conference, necessitating a recess at the beginning of the Conference to await the appearance of the absent party.

Taken as a whole, all the circumstances of the present case -- particularly Decade's refusal to send a representative to the Special Prehearing Conference, in the face of the Licensing Board's stern admonition -- support the dismissal of Decade.

In considering the imposition of sanctions on Decade, the Licensing Board recognized the Appeal Board's recent guidance in Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 N.R.C. 1400 (1982) (" Byron"). See j Order, at 6; Tr. 110-13. Applying the principles discussed in Byron to the facts before it, the Licensing Board found that dismissal of the petitioner was appropriate -- a finding well within the Licensing Board's discretion in the circumstances-i

! presented here.

As the Licensing Board noted, the petitioner's status as a party in Byron had already been determined; hence, it had a right to a public hearing. In contrast, in the case at bar, Decade was still a petitioner and had not even established its right to a public hearing. See Order, at 6. Indeed, that was the very issue to be determined at the Special Prehearing Conference which Decade refused to attend.

i

In addition, as the Licensing Board discussed, the Byron intervenor's unwillingness to respond to interrogatories made it more difficult for another party to proceed expeditiously, but did not seriously affect the progress of the proceeding because it did not affect the timeliness of the Board's decision and did not interfere with the adjudicatory process by affecting the ability of the hearing board to conduct a scheduled hearing. Order, at 6. In contrast, in the instant case, as detailed above, Decade's failure to send any represen-tative to the Special Prehearing Conference perverted this proceeding from its outset -- the Licensing Board was forced to play " devil's advocate," assuming the role Decade would have played at the Conference, and was deprived of the opportunity to ask questions of Decade. In addition, Decade's absence from the Special Prehearing Conference effectively precluded resolution of numerous matters ordinarily determined at such a Conference. See 10 C.F.R. $ 2.751a(a)(1), (2) and (4). If, as the Appeal Board found, the Byron intervenor's failure to respond to discovery requests " effectively stalled the pro-ceeding in its tracks" (see Byron, supra, 15 N.R.C. at 1417),

then Decade's conduct here effectively prevented this pro-ceeding from ever getting started.

Moreover, the Appeal Board's difference with the Byron licensing board on the appropriate sanction to be imposed was based primarily on the Appeal Board's conviction that the

. licensing board there had overstated the intervenor's delaying ,

tactics and overlooked the fact that the intervenor was not alone in failing to move the proceeding along. Byron, supra, 15 N.R.C. at 1419. Particularly, the Appeal Board emphasized that --_ contrary to the licensing board's holding -- an intervenor's failure to initiate discovery cannot be considered a failure to prosecute its case (15 N.R.C. at 1412, 1418), the due date of the discovery responses was unclear and subject to varying interpretations by the licensing board and the parties (15 N.R.C. at 1412-16, 1418), and both the applicant and the licensing board itself contributed to the delay which the licensing board attributed to the intervenor alone (15 N.R.C.

1412, 1418-19). In contrast, in the instant case, there are no differences among the Licensing Board and the parties as to the material facts, and there are no conflicting inferences to be drawn from those facts. Decade candidly

• *

• does not dispute that it failed to attend the prehearing conference, nor does it dispute that it was advised by the Board that the failure to attend could result in

[ dismissal.

! Decade's Brief, at 4. Nor can there be any assertion, as there l

was in Byron, that the Licensing Board and the other parties were also at fault. Decade asserts only -- without reference l

to any supporting case law or other authority (including Byron and the Commission's Policy Statement) -- that the sanction imposed was " unreasonable, discriminatory and unduly harsh."

i

- --,, - - - - - _ . . _ - . . _ . - - - _ - - , - . . . . - _ ~ - - .

, , Decade's Brief, at 4. At the Licensing Board noted, the Appeal i

Board in Byron imposed a very serious sanction -- significantly reducing the number of contentions (see Byron, supra, 15 N.R.C.

at 1420) -- suggesting that default is an appropriate sanction for the more serious violation present in the instant case.

Order, at 6.

In sum, particularly under the circumstances, the I

Licensing-Board was well within its discretion in denying Decade's request to reschedule the Special Prehearing Conference fot- the convenience of Mr. Anderson. In addition, 1 the Licensing Board correctly weighed the factors in the Coramission's Policy Statement, and properly considered the recent Byron decision in assessing the sanction to be imposed

. on Decade for its failure to attend the Special Prehearing Conference. Accordingly, the Licensing Board was well within its discretion in dismissing Decade's petition for Decade's I willful refusal to send a representative to the Special Prehearing Conference, and its December 10, 1982 Order to,that

( effect should be upheld.

l r

1- .- . . - . - . . _

, II. DECADE'S CONTENTIONS i

A. Decade's Failure to Brief Its Appeal of Rulings on Contentions The second part of Decade's brief, pages 8 through 15, purports to be argument in support of Decade's assertion that the Licensing Board erred in finding that Decade had failed to state a relevant contention supported by adequate bases.

However, Decade in fact has presented no arguments on, and has ,

thus failed to brief, the Licensing Board's rulings which excluded the contentions.

Contentions 1, 2 and 4 through 6 were rejected by the l Licensing Board as irrelevant to the subject matter of the proceeding. Contentions 3(a) through 3(d) were rejected for lack of stated bases as required by section 2.714(b) of the Commission's Rules of Practice, 10 C.F.R. $ 2.714(b).

Contention 7 was rejected for a number of reasons, including lack of basis. Decade's brief fails to address the Licensing Board's rulings on relevancy, fails to address the rulings on bases and, in fact, fails to address any of the Licensing Board's rulings on any specific contention.

Instead of presenting arguments on the Licensing Board's rulings, Decade has used most of that portion of its brief to present verbatim a repetition of its proposed Contentions 1 through 7, as stated in " Decade's Contentions Concerning Steam Generator Replacement" (November 5, 1982). Decade also

___ .__ _ _ _ _ _ . _ _ ~ - _ . -

presented argument string-citing cases on the standards i

applicable at the summary judgment stage of a proceeding. Such cases are not relevant in the present procedural context, and Decade did not attempt to relate the cases to its proposed contentions or the standards which the Licensing Board applied to the proposed contentions.11/ Moreover, the portion of Decade's brief relating to contentions contains only a single reference to the Licensing Board's Order, and that section of the Order pertained not to a ruling on a contention but, as will be addressed below, to a discussion of a question which the Licensing Board stated was not directly raised by a Decade contention. Thus, Decade's brief wholly fails to provide the Appeal Board and appellees with " sufficient information or argument to allow an intelligent disposition of [the] issue [s]"

presented by the appeal. See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-270, 1 N.R.C. 473, 475 (1975).

It is well established that issues not adequately briefed l on appeal are waived.12/ See, e.g., Public Service Electric l

11/ This portion of Decade's brief is lifted virtually i

verbatim from a brief which it submitted in response to motions for summary disposition filed by Licensee and the Staff in the companion sleeving proceeding. See " Decade's Reply Brief In Support of Its Motion Concerning Litigable Issues" (August 31, 1982), at 3-5 (filed in the OLA-1 sleeving proceeding).

12/ Decade is well aware of the importance of fully briefing its issues on appeal, and the consequences of a failure to do so. In the companion sleeving proceeding, the Appeal Board chastised Decade for its " generally inadequate" brief, and held that five of its seven filed exceptions were waived because (Continued Next Page)

. and Gas Co. (Salem Nuclear Generating Station, Unit 1),

ALAB-650, 14 N.R.C. 43, 49-50 (1981), aff'd sub nom. Township of Lower Alloways Creek v. Public Service Electric and Gas Co.,

687 F.2d 732 (3d Cir. 1982); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-461, 7 N.R.C. 313, 315 (1978); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B), ALAB-367, 5 N.R.C. 92, 104 n.59 (1977); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C. 397, 413-14 (1976).

As the Appeal Board observed in Marble Hill, supra, 7 N.R.C. at 315 (footnotes omitted):

[B]riefs are necessary to " flesh out" the bare bones of the exceptions, not only to give [the Appeal Board) sufficient information to evaluate the basis of objections to the decision below, but also to provide an opponent with a fair opportunity to come to grips with the appellant's arguments and attempt to rebut them. The absence of a brief not only makes [the Appeal Board's) task difficult but, by not disclosing the authorities and evidence on which the appellant's case rests, it virtually precludes an intelligent response by appellees.

For these reasons [the Appeal Board) generally follow [s] the course charted by the Federal courts and disregard [s]

unbriefed issues as waived.

j (Continued) they were inadequately briefed. See Wisconsin Electric Power Co. (Point Beach Nuclear Power Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277, 278 (1982); ALAB-696, 16 N.R.C.

(October 1, 1982), slip op. at 12-14.

Becausa Decada has not adequately briefed its assertion that the Licensing Board erred in finding that Decade failed to state a relevant contention supported by basis, that assertion of error is abandoned, and should be disregarded as waived.13/

Since the Licensing Board's rulings excluding Decade's contentions in and of themselves result in dismissal of the c

petition, the waiver of Decade's appeal of these rulings mandates that the dismissal be sustained.

B. Effect of Decade's Default Section 2.707 of the Commission's Rules of Practice, 10 C.F.R. $ 2.707, provides that:

13/ Decade has attempted to supplement its brief by incorpor-ating by reference its statement of contentions (" Decade's Contentions Concerning Steam Generator Replacement," filed November 5, 1982). See Decade's Brief, at 15. Decade's actions should not be countenanced by the Appeal Board, since i such incorporations by reference violate both the letter and

! the spirit of Commission regulation and precedent requiring j that a brief be complete in itself. See generally, e.g.,

Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 N.R.C. 769 (1977);

Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B &2B), ALAB-367, 5 N.R.C. 92 (1977); Kansas Gas &

Electric Co. (Wolf Creek Generating Station, Unit No. 1),

ALAB-424, 6 N.R.C. 122, 127 (1977). The document Decude wishes to incorporate contains no additional arguments, and certainly does not address the Licensing Board's rulings. Given Decade's I

failure to brief its assertion that the Licensing Board erred in its rulings on Decade's contentions, such an incorporation by reference (if permitted) would essentially convert the role j of the Appeal Board from a reviewer of the established i

Licensing Board's rulings into a second Licensing Board ruling

! de novo on Decade's contentions.

l

, On failure of a party *

• O to appear at a

• *

• prehearing conference, * *

• the Commission or the presiding officer may make such orders in regard to the failure as are just, including, among others, the following:

(a) Without further notice, find the facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order, and enter such order as may be appropriate * * *

(footnote omitted)

Both Licensee and the NRC Staff asserted at the prehearing conference that Decade had failed to provide the required b'ases for its contentions and that the petition should therefore be dismissed. Accordingly, the Licensing Board was entitled, pursuant to section 2.707, to rule in accordance with that position, and find that no bases were provided by Decade. At page 7 of the Order, the Licensing Board properly invoked this principle as an additional reason for dismissal of Decade's petition. The Licensing Board's ruling is a direct and straightforward application of a Commission regulation which, by itself, is sufficient to justify denial of the petition.

i C. Contentions 1, 2 and 4 through 6 Contentions 1, 2 and 4 through 6 were rejected by the Licensing Board as not relevant to the subject matter of the proceeding, i.e., not relevant to Licensee's application to I perform a specifically described repair of the two steam generators of Unit 1. Licensee's arguments on the relevance of Contentions 1, 2 and 4 through 6 are found at pages 45-56 of

6 the prehearing conference transcript. The Staff's concurring arguments are at Tr. 61-62. The notice of opportunity for hearing in this proceeding, 47 Fed. Reg. 30125 (July 12, 1982),

stated that the amendment under consideration is "to permit repair of steam generators by replacement of major components, including tube bundles, in accordance with the licensee's application for amendment dated May 27, 1982," and that

" contentions hhall be limited to matters within the scope of the amendment under consideration." Contentions 1, 2 and 4 through 6 on their face bear no relationship to the proposed repair. The contentions attack the adequacy of steam genera-tors and other systems generally, which were previously considered when the operating license was issued, without relating the allegations in any way to the proposed repair.

Nor has Decade made an attempt to relate those contentions i to the proposed repair in its brief to the Appeal Board.

Decade's failure to present and brief any arguments on the issue of relevancy should exclude consideration by the Appeal i

Board of the Licensing. Board's rulings on these contentions.

D. Contentions 3(a) through 3(d) and 7 Contentions 3(a) through 3(d) are all related to the fact that the tubes in the repaired steam generators will be hydraulically expanded throughout the depth of the tubesheet

! holes, as compared to the existing steam generators where the l

tube expansion -- by a mechanical rolling process -- is limited l l

. to a small region at the bottom of the tubesheet hole. The ,

Licensing Board discussed each of the four contentions individually, and rejected each on the grounds that Decade had failed to state bases as required by 10 C.F.R. 5 2.714(b).

Decade's appeal brief does not address the Licensing Board's ruling on the lack of basis for these contentions. Thus, as with Contentions 1, 2 and 4 through 6, Decade has waived its right to appeal the Licensing Board's rulings on Contentions 3(a) through 3(d).

The only reference made to the Order by Decade with respect to its contentions is found at pages 14-15 of its brief. No specific contention is identified, but Decade quotes language contained at page 15 of the Order under the heading,

" Contention 3(a)." Decade seems to suggest that the Licensing Board rejected Contention 3(a) based on statements of Licensee's counsel. However, Decade's argument goes not to the Licensing Board's rationale for its ruling excluding the contention, but to additional observations of the Licensing Board not specifically related to the contention.

The language with which Decade takes issue appears on page 15 of the Order, after the Licensing Board has ruled on Contention 3(a). Those comments of the Licensing Board were in the nature of observations of a possible sua sponte issue which, after consideration, the Licensing Board decided not to raise. The language of the Order quoted by Decade stops just short of the following sentence, which indicates that the Board's question was not raised by Contention 3(a):

Consequently, we do not consider this deficiency in the record to require us to admit this contention (that does not directly raise this cuestion) nor do we consider this to be a sufficiently impor-tant safety issue for us to decide that default is not an appropriate consequence for Decade's failure to appear at the Special Prehearing Conference. (emphasis added).

Order, at 15-16. Thus, it is clear that the Board's comments cited by Decade apply not to its ruling on Contention 3(a),

which had already been rejected for lack of basis, but to another matter entirely, which, for reasons stated, the Board chose not pursue on its own motion.

The Commission's Rules of Practice are structured to provide a minimal burden on a petitioner who comes forward with allegations and requests that a hearing be held on those allegations. Under section 2.714(b), the petitioner must provide the " bases for each contention set forth with reasona-ble specificity" before the contention can become an issue for

litigation. Unlike notice pleading in the Federal judicial system, where a plaintiff making allegations generally has the burden of proof of these allegations, the burden of proof is upon the applicant in an NRC hearing once a petitioner's i

contention has been admitted. Thus, it is not unreasonable that a petitioner should assume some degree of responsibility

I in demonstrating that his allegations are of sufficient

substance to warrent a hearing. That responsibility, under the ,

Commission's Rules of Practice, is the bases requirement in l l

section 2.714(b), which has been judicially sustained. BPI v.

AEC, 502 F.2d 424 (D.C. Cir. 1974); Vermont Yankee Nuclear i

i Power Corp. v. NRC, 435 U.S. 519, 553-54 (1978).

I In Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB- 590, 11 N.R.C. 542 (1980),

the Appeal Board held that a petitioner is required under

, ~

section 2.714(b) to submit bases, or reasons, for his allega-i tions, but that he does not have to detail the evidence which I i will be submitted in support of his allegations at that stage of the proceeding, for it is not the function of a licensing board, in ruling on a petition for leave to intervene, to reach the merits of the allegations. The ruling of the Licensing Board below was in accord with Allens Creek. The Licensing I Board did not rule on the merits of the contentions, but rather l addressed the question of whether Decade had adequately set forth the bases for its contentions, as required by section 2.714(b).

The existence of a requirement in the Commiscion's regulations suggests (a) that there is a reason for the requirement and (b) that some degree of judgment will be j exercised by the Commission in determining whether the require-l l ment has been met. One obvious reason for the requirement is l l l

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. to avoid setting into motion the costly and time-consuming machinery for holding a hearing if the allegations are baseless or frivolous. The only way this objective can be realized is by the application of some standard of judgment as to the adequacy of the bases and the adequacy of the degree of required specificity of the bases. To do otherwise, i.e., to accept any stated basis without evaluation, would nullify the bases requirement in section 2.714(b).14/

The question of how to evaluate a petitioner's stated bases, without infringing on the forbidden territory of reaching the merits of a contention, may, in some instances, be a difficult one. In Allens Creek, the petitioner alleged that biomass production systems should be evaluated under NEPA as an 14/ When the Commission's Rules of Practice were restructured in 1972, the Commission specifically imposed responsibilities on those seeking to have contentions litigated at a licensing hearing. With respect to the intervention requirements of 10 C.F.R. 5 2.714, the Commission stated that:

. The opening up of the [ hearing] process...

I implies that intervenors should have corre-lative responsibilities to help define and

! substantiate the matters that they seek to put in issue after they have had an oppor-tunity to avail themselves of the informa-tion that would then be open to them.

Definition of the matters in controversy is widely recognized as the keystone to the efficient progress of a contested pro-ceeding. In order to put a matter in issue, it will not be sufficient merely to make an unsupported allegation. 37 Fed.

Reg. 15127, 15128 (July 28, 1972) (emphasis supplied).

I i

. environmentally preferable alternative to the proposed nuclear plant. The petitioner cited as basis for the contention statistics on biomass BTU production and production costs contained in a report issued by the Federal Energy Administration. The statistics cited as the basis gave scant factual support to the premise that a marine biomass farm would be a viable alternative to a nuclear plant, but the Appeal Board held that to so determine at that point in the proceeding i

would be an improper determination of the merits of the 4 contention. Reasonable minds may differ on the result, but the fact remains that a credible basis was presented -- statistics from a government agency report -- and Allens Creek therefore cannot be said to hold that any basis, no matter how thin or

, devoid of substance or credibility, will satisfy the basis requirement of section 2.714(b).15/

15/ Indeed, the Appeal Board more recently observed:

To be sure, the license applicant carries the ultimate burden of proof. But intervenors also bear evidentiary responsi-bilities. In a ruling that has received explicit Supreme Court approval, the Commission has stressed that an intervenor must come forward with evidence " sufficient to require reasonable' minds to inquire fur-

ther" to insure that its contentions are explored at the hearing.

Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 N.R.C. 317, 340 (1980)

(footnotes omitted). The Commission's ruling referred to by the Appeal Board was Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-74-5, 7 A.E.C. 19, 30-32 and fn. 27 (1974), rev'd

+

(Continued Next Page)

. As discussed below, the difficulty in drawing the line between evaluating the basis of the Allens Creek contention and reaching the merits of the contention is not present in the Licensing Board's rulings on Contentions 3(a) through 3(d).

Because of an apparent misunderstanding of the nature of the proposed repair, Decade, in fact, has provided no basis whatever for Contention 3(a). The allegation in Contention 3(a) is that

[t]he newly situated roll stressed transi-tion zone [between the expanded portion of the tube within the tubesheet and the unexpanded portion above the tubesheet]

will be subject to stress assisted cracking due to residual stresses from the hydraulic expansion process. (emphasis added).

The basis cited is a 1974 report alleging that Westinghouse Electric Company, the manufacturer of the steam generators, is

" applying a full roll" to the steam generator tubes and that the rolled out specimens should be tested for the possibility of stress-assisted cracking. However, as stated in the amendment application,16/ and as noted by the Board at page 15 of its Order, the tubes in the repaired steam generators will be hydraulically expanded; they will not be rolled. Thus, the (Continued) sub nom. Aeschliman v. NRC, 547 F.2d 622, 628 (D.C. Cir. 1976),

rev'd and remanded sub nom. Vermont Yankee Nuclear Power Corp.

v. NRC, 435 U.S. 519, 553-54 (1978).

16/ " Steam Generator Repair Report," at 2-8.

eight-year old report cited by Decade as a basis for Contention 3(a) is not relevant to the proposed repair process.12/

Similarly, the Licensing Board examined the bases cited for Contentions 3(b) through 3(d) and correctly determined that no bases were provided to support the allegations that sludge deposition (Contention 3(b)), eddy current inspectibility (Contention 3(c)), and potential tube leakage at the transition zone (Contention 3(d)) would present a safety problem with respect to the proposed repair.

In Contention 3(b), Decade alleged that the transition zone of the tubes would be subjected to extensive corrosive attack because of deposits from impurities in the secondary water that cannot be eliminated by the all volatile water chemistry employed at Point Beach, and because the zone is in a deposition area subject to alternate wetting and drying. The only basis cited for the allegation was an excerpt from a 1972 report criticizing the use of all volatile water chemistry.

The basis cited is not relevant to the proposed repair 12/ The only other basis cited by Decade for Contention 3(a) is a letter regarding two leaking tubes at another facility.

The letter refers to " residual manufacturing stresses created during tube bending" of tubes on the inner row, obviously referring to the sharp U-bends at the top of the steam genera-tors. It therefore has no bearing on the contention, which deals with the bottoms of the tubes within the tubesheet where no bending occurs. Decade made no attempt to relate the tube bending at another facility to the proposed repair at Point Beach.

. amendment because the water chemistry treatment is the same as that currently in use with the unrepaired generators, and the amendment does not encompass a request or proposal to change the current water chemistry method. Decade made no assertion that such a treatment would riase a safety concern because of the proposed repair. Thus, Decade provided no basis that its concerns would in any way be affected by the proposed repair.13/ See Tr. 86-90.

Contention 3(c) alleged that it would be "more difficult" to inspect the transition Zone than to inspect the "unexpanded portion of the sleeve."19/ Decade did not, however, assert that the " difficulty" would be a safety concern, nor did Decade pr> vide a basis for such an assertion. Common sense dictates that some portions of a tube -- or indeed any component of a nuclear reactor -- will be "more difficult" to inspect than others. That does not suggest that the inspectibility would be inadequate, and Decade provided no basis for assuming that such would be the case. See Tr. 92-96.

Similarly, Decade alleges in Contention 3(d) that leakage in the transition zone would be unconstrained by the tubesheet i

l 1H/ In fact, the Licensing Board observed that the application showed that the repaired steam generator would incorporate several new design features that would alleviate Decade's con-l cerns. Order, at 16; See Tr. 86-90 and " Steam Generator Repair l Report," August 1982, at 2 2-8.

l 19/ Decade is obviously referring the the tubes, rather than j the sleeves, for the application does not encompass sleeving.

l l

l

7 m

.' hole and that such leakage would have unacceptable selfety ,

consequences. Decade provided no basis for the allegay,iorid s

that unacceptable leakage will occur in the transition zone.'

In fact, Decade provided no basis whatsoever for Content' ion 3(d). See Tr. 97. -

It is to the Licensing Board's credit that it did not top i

short -- as it could have -- with an examination of thelbases cited and a determination that proper bases for the contentions were not provided. The Licensing Board went further, inquiring k

of the parties about information in the application dealing ( 3 with the issues raised by Decade. Presumably the Licensing .'

Board might have pursued the issues on its own motion, sua sponte, if it felt that there was a safety concern, notwith 's standing the lack of basis. Nevertheless, the Board's dili- .

s s N

, gence in inquiring into the matters does not detract from the

.N fact that Decade simply did not provide bases for its conteni',

< t tions as is required by section 2.714(b). s

. i.

For Contention 7, Decade did no more than allege thatxthe

-[ ~

,e g repaired steam generators may somehow "be expected to experi-- . , y x

ence new forms of tube degradation of an undefined nature that ^

l% '.

cannot be specifically anticipated at this time * * *" The y ,

Licensing Board was correct in rejecting this contention, for it is so unspecific as to be impossible to litigate. Moreover, ,

its very vagueness would, logically, make it impossible to - ; ~ ~. s. '

provide a basis, for nothing specific is alleged. In any , .

s ,

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' event , the purported bases previded by Decade bear no .

relationship to the repair,ed steam generators at Point Beach, and,.in fact, Decade did'not so allege.~

See Tr. 56-60.

, e ,\

t

^ CONCLUSION l

- s i s ._

Decade's Notice of Appedl asks that the Licensing Board's Spe ial Prehearing ConferAnce Order of December 10, 1982 be f reversed "ing its entirety." However, Decade's supporting

, 1

,; brief, required by 10 C.F.R. $ 2.714a(a), provides little or no 1 ,

, 'g'CdsupportforitsattackonthevariousrulingsoftheLicensing

.s . <

sBoard'.- The section of Decade's brief on the Licensing Board's

\ j I default ruling cites no law, and consists almost entirely of a eccitation of the history of record and an attempt to provide

. additional justification for its failure to appear, which

additional justification it had previously refused to provide to the Licensing Board. With respect to the Licensing Board's s rulings on Decade's contentions, the brief does no more than (N , . repeat the contentions and cite a number of irrelevant cases s

pertaining to summary judgment. Although the Licensing Board i

rejected Decade's contentions on the grounds of relevance and k lack of bases,' the brief was silent on both subjects.

r Moreover, there was no discussion of any of the specific g.'-

~

contentions, with mention made only of Licensing Board commen-m tary on a question not directly raised by a Decade contention.

s

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In contrast, the Licensing Board has issued a well reasoned opinion justifying denial of the petition on various i

grounds. Accordingly, for all of the reasons discussed above, Licensee respectfully submits that Decade's appeal from the Licensing Board's December 10, 1982 Special Prehearing Conference Order should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By b NBruce W. Churchill Delissa A. Ridgway Counsel for Licensee Dated: January 4, 1983 i

l

O UNITED STATES OF AMER:CA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board l In the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ) Docket No. 50-266-OLA2

)

(Point B2ach Nuclear Plant, )

Unit 1) )

i CERTIFICATE OF SERVICE This is to certify that copies of " Licensee's Brief In Opposition To Decade's Appeal of Licensing Board Order of December 10, 1982" were served, by deposit in the U.S. Mail, first class, postage prepaid, to all those on the attached Service List, this 4th day of January, 1983.

>MfA f 3Deliss'aQ. Rikig%y G' Dated: January 4, 1982 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Appeal Board In the Matter of )

)

WISCONSIN ELECTRIC POWER COMPANY ) Docket No. 50-266-OLA2

)

(Point Beach Nuclear Plant, )

Unit 1) )

SERVICE LIST Thomas S. Moore, Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Panel Appeal Board U. S. Nuclear Regulatory Commission U. S.' Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D. C. 20555 Atomic Safety.and Licensing Appeal Board Panel Dr. W. Reed Johnson U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appeal Board 3

U. S. Nuclear Regulatory Docketing and Service Section Commission Office of the Secretary

! Washington, D. C. 20555 U. S. Nuclear Regulatory Commission j Washington, D. C. 20555 Dr. Reginald L. Gotchy Atomic Safety and Licensing Stuart A. Treby, Esquire i Appeal Board Office of the Executive Legal Director U. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Richard G. Bachmann, Esquire Peter B. Bloch, Chairman Office of the Executive Legal Director Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Board Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Myron Karman, Esquire Washington, D. C. 20555 Office of the Executive Legal Director ,

U. S. Nuclear Regulatory Commission i

Dr. Hugh C. Paxton Washington, D. C. 20555 1229 - 41st Street Los Alamos, New Mexico 87544 Peter Anderson Wisconsin's Environmental Decade l

! Dr. Jerry R. Kline 114 North Carroll Street )

I Atomic Safety and Licensing Suite 208 l Board Madison, Wisconsin 53703 U. S. Nuclear Regulatory j Commission Washington, D. C. 20555 l

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