ML20028C906
| ML20028C906 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/12/1983 |
| From: | Carr A DUKE POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8301140287 | |
| Download: ML20028C906 (34) | |
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' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '83- N I3 N0'.58 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD e ,s yEUDif'$
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.m m M;C4 In the Matter of )
) -
DUKE' POWER. COMPANY, et al.
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) Docket'Nos. 50-413
) 50-414 (Catawba' Nuclear. Station, -)
Units 1 and 2) ) ,
APPLICANTS' RESPONSE TO " PALMETTO ALLIANCE AND CAROLINA ENVIRONMENTAL STUDY GROUP OBJECTIONS TO DECEMBER 1, 1982 BOARD ORDER AND. MOTION FOR RECONSIDERATION OR IN THE ALTERNATIVE FOR CERTIFICATION" 4
Duke Power Company, et al. (" Applicants"), pursuant to 10 C.F.R. $2.730(c), hereby respond to Intervenors' December 20, 1982 filing entitled " Palmetto Alliance and l Carolina Environmental Study Group Objections to December ;
1, 1982 Board Order and Motion for Reconsideration or in the Alternative for Certification" ("Intervenors' Motion"),1 a complete copy of which was received by 1 Applicants are aware that, pursuant to 10 C.F.R.
{2.751(a)(d) and $2.752, replies to objections (or, in this case, requests for reconsideration) to a prehearing conference order are not permitted unless the Board so ,
directs. Had the instant Motion been styled solely as Intervenors' objections to the Board's December 1, 1982 Order, Applicants would have sought permission from the Board to submit a reply. Noting, however, that Inter-venors concurrently move, in the alternative, for re-ferral of certain rulings in the December 1, 1982 Order i
^
to the Atomic Safety and Licensing Appeal Board or the Commission, Applicants have instead undertaken to respond (pursuant to $2.730(c)) to this aspect of In-tervenors' pleading. Applicants would note that the (footnote continued)
. B301140287 830112 PDR ADOCK 05000413 G PDR g56o
Applicants on December 29, 1982.2. In Applicants' view, Intervenors' Motion is deficient.in a number of. respects. :
First, Intervenors. fail totally, in requesting referral of certain Board rulings to the Appeal Board, to demonstrate
- that such Board rulings meet' applicable standards for in-terlocutory review by the Appeal Board and thus that they -
are entitled to the relief sought. Second, with respect to
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the specific Board rulings of which they complain, Inter-venors fail totally to demonstrate that the Board has com -
mitted error in the application of relevant standards. ,
Indeed, in many respects Intervenors' Motion misstates the bases for the Board's ruling on certain contentions, either 3 .
(footnote continued from previous page). ,
arguments. advanced herein are identical to those which
, would have been made.in reply to Intervenors' objections to the December 1, 1982 Order. Thus, Applicants have also undertaken to respond to Intervenors' requests for reconsideration.
Applicants further note that while Intervenors use the term " certification," rather than " referral," NRC regu-
- lations appear to contemplate the use of the latter term (under $2.730( f)) Where, as here, a licensing board has already ruled on the disputed issues for which inter-locutory review is sought. See the Licensing Board's
- " Memorandum and Order (Overruling Certain Objections to
, Prehearing Conference Order and Referring Certain Ques-2 Intervenors' Motion is dated December 20, 1982. How-ever, When Applicants initially received the Motion it appeared that a portion of the document was missing.
Applicants promptly notified Palmetto Alliance, indi- !
cating that they would consider service to be complete upon receipt of the missing page(s) of the Motion.
Applicants subsequently received a complete copy of the Motion on December 29, 1982. I
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3-by alleging that'the Board's ruling on a specific contention rests only on one ground, where-in actuality such ruling rests on more'than one ground, or by alleging that the Board has ruled on a contention relying on one reason when in actuality the reason for the Board's ruling is entirely different. Moreover, it should be noted that, with respect to Board rulings on certain contentions, Intervenors have ignored an explicit Board order regarding factors Which must be addressed by Intervenors in seeking reconsideration of such rulings. Such disregard.must work against Intervenors' request for reconsideration or referral.
I. BACKGROUND On December 1, 1982, the Board issued a Memorandum and Order (Reflecting Decisions Made Following Second Pre-hearing Conference)(" December 1 Order") in which it ruled on the admissibility of certain Palmetto Alliance and CESG contentions (originally admitted conditionally) in light of the opinion issued by the Atomic Safety and Licensing Appeal Board (" Appeal Board") in Duke Power Company, et al.
(Catawba. Nuclear Station, Units 1 and 2), ALAB-687, NRC (August 19, 1982)("ALAB1687"). The Board also ruled on additional contentions Which Intervenors filed following l
publication of the Draft Environmental Impact Statement (DES) for Catawba, Which contentions were allegedly l e
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1 prompted by and based upon information contained-in the DES. It is these rulings of the Board which Intervenors now seek to have reconsidered by the Board and/or referred to the Appeal-Board or the Commission.
Intervenors allege as the basis for their Motion that these rulings on admissibility by the Board reflect an
" improper and erroneous application" of ALAB-687 as it applies to "the admission of contentions for litigation in this proceeding, the protection of hearing rights conferred by Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239(a), and the compliance by the Nuclear Regulatory Commission with the provisions of the National Environmental Policy Act of 1969, 42 U.S.C. 2201."
(Intervenors' Motion at p. 1).
In ALAB-687, the Appeal Board (in response to a referral by the Licensing Board pursuant to 2.730(f))
reviewed and reversed rulings made by the Licensing Board in considering contentions submitted by Intervenors Palmetto Alliance and Carolina Environmental Study Group (CESG) as issues for litigation in the proceeding.3 The 3 The Appeal Board emphasized its general reluctance to accept interlocutory appeals, particularly those in-volving nothing more than disputes as to the admissi-bility of contentions, and specifically refused to make an individual determination of admissibility as to any of the particular contentions in issue. (ALAB-687, slip op. at p. 6). Nor, it acknowledged, was this the Licensing Board's purpose in seeking referral:
(footnote continued)
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Board had conditionally admitted to this proceeding certain of those contentions, notwithstanding its specific determinatien that the contentions failed to satisfy the specificity requirements of 10 C.F.R. $2.714(b). The admission of the contentions was conditioned upon Intervenors providing the requisite specificity following either discovery or publication of certain licensing documents to become available as the proceeding progresses.4 In ALAB-687 the Appeal Board expressly rejected the concept of conditionally admitting a contention in an NRC proceeding subject to its proponent's later providing the requisite specificity after discovery or after the avail-ability of new documentary information, ruling that Given the terms and history of Section 2.714(a),
we are compelled to the conclusion that a licensing board is not authorized to admit con-ditionally, for any reason, a contention that (footnote continued from previous page)
Rather, although arising in the context of specific contentions, the referred rulings appear to pose generic questions. As their formulation by the Board below reflects...these questions go to the circumstances, if any, in which a licensing board may allow the condi-tional admission of a contention that it has found to fall short of the degree of specifi-city mandated by 10 CFR 2.714(b). [Id.]
4 Those documents are the NRC Staff's Environmental Impact
- Statement, Safety Evaluation Report, and the Emergency
' Plan for the Catawba facility.
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falls' short of meeting the specificity require-ments.-[ALAB-687, slip ~op. at 11. (Emphasis in original)].
The Appeal Board went on to note,-however, that
$2.714(b) should not be read as barring the "later asser-tion of a new contention founded upon information not in existence or publicly available 15 days prior:to the special prehearing conference," if that information is found to constitute "an essential element of the license application or the Staff's prehearing review." (Id,.) Such an interpretation of $2.714(b)_would " sanction an unfair l result in contravention of hearing rights conferred by Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2239(a)." (Id.) Nevertheless, the Appeal Board 4
stated that when contentions are filed under such circumstances, a three-part test should be applied to determine whether justification exists for their late filing for reasons beyond an intervenor's control. Such circumstances exist, according to the Appeal Board, when a contention (1) is wholly dependent upon the content of a particular document; (2) could not therefore be advanced with any degree of specificity (if at all) in advance of the public availability of that document; and (3) is tendered with the requisite degree of promptness once the document comes into existence and is accessible for public examination. [Id. at p. 16].
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In view of the Appealx Board's ruling that the speci--
ficity requirements of $2.714 must in all cases be met before a contention may be admitted, the Licensing Board in its December 1 Order first vacated those portions of its earlier order 5 which had conditionally admitted certain Palmetto Alliance and CESG contentions. The Board then reconsidered "from the standpoint of specificity" all of these-affected contentions in order to determine their final disposition. (December l' Order at p. 4).
After re-evaluating the Palmetto Alliance and CESG contentions which it had " conditionally" admitted subject to later specification, the Board determined that all but three of them failed to meet th'e specificity requirement of 10 C.F.R. {2.714. Accordingly, the Board rejected Palmetto Alliance Contentions 1, 2, 3, 4, 10, 18, 21, 22 and 26 and CESG Contentions 9, 13, 16 and 17. CESG Contention 8 (in part) and Palmetto Alliance Contentions 6 (as recast by the Board) and 7 were admitted. (December 1 Order at pp. 4-5).
The Board also ruled in its December 1 Order on the admissibility of the 23 joint " DES contentions" proposed by Palmetto Alliance and CESG. Because these contentions were allegedly based upon a document not available 15 days prior to the January, 1982 special prehearing conference, the 5 " Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference)," March 5, 1982.
(" March 5 Order").
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- I Board' applied the three-part test set forth in ALAB-687 to determine whether.or not their untimely submittal could be
, justified for reasons beyond Intervenors' control.' Out of this group of DES contentions,'the Board admitted only No.
. 17 and part of No. 22.6 Intervenors request the Board to reconsider its ruling
. with. respect to certain of their contentions which were
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rejected in the December 1 Order. They request such re-. ,
consideration on two grounds. First, with respect to CESG 17 and Palmetto. Alliance 18, the Intervenors allege that the Board committed error when it found them lacking when measured against the specificity standards of Section-2.714. It is not entirely clear from the face of their pleading, but Lit appears Intervenors contend that the Board
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i had earlier found these contentions acceptable and cannot i
now reverse such a finding. (Intervenors' Motion at pp. 2-3). Second, with respect to the Board's ruling on certain DES contentions, Intervenors allege that the Board rejected such contentions solely because it found they were
" untimely" or not " wholly dependent" on the DES.
4 6 -DES Contentions 1, 2, 3, 4 (withdrawn), 5, 6, 7, 8, 9, 1 12 and 13 (withdrawn), 14, 15, 16, 18, 20, 21, and 23 were-rejected. DES Contention 17 and part of DES Contention 22 were admitted. The Board deferred ruling on.the admissibility of DES Contentions 10, 11 and 19.
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Intervenors appear to argue.here that such test can not-be applied when the. contentions seeks to challenge the adequacy of the NRC Staff's review. -(Motion at pp. 5-6) .
Intervenors also move,.as an alternative to' Board reconsideration, that the Board refer to'the Appeal Board or commission "as appropriate" its application of.the 1
" timeliness" standard and the meaning of the term " wholly depender " as used in ALAB-687.7 However, Intervenors'
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sole support for their request is a reference to the Appeal.
. Board's statement in ALAB-687 that the questions presented there. were " legal" and generic" in nature and were for'the 7 Applicants note that-Intervenors apparently are-seeking referral of the Board's ruling with regard to CESG 17 and Palmetto Alliance 18. However, no supporting basis is provided.
Applicants wish to point out at this juncture the handicap they have been operating undcr in preparation of this pleading. It is unclear as to Which rulings on
, contentions Intervenors are objecting to, are seeking reconsideration of, or are asking to be referred. The matter is compounded by the almost total lack of substantive argument with regard to any of the above.
As best as Applicants can judge, Intervenors are treating their objections as being synonymous with their Motion for reconsideration and the request for referral as an alternative thereto. Though on p. 2 of their Motion Interv'enors list each contention which the Board rejected in its December 1, 1982 Order, it appears that Intervenors seek Board action only with respect to Palmetto' Alliance Contention 18, CESG Contention 17 and DES contentions 2, 3, 5, 14, 20 and 21, and Applicants have limited their substantive response to these contentions. Notwithstanding Intervenors' intent, with
. respect to the remainder of their rejected contentions,
- Applicants would point out that Intervenors have provided no basis which would justify the relief they
- seek.
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first time " squarely addressed"Lon the appellate level,.and an apparent argument that,.because the principles estab-lished in ALAB-687 are applied for the first time to In-tervenors in this case, such application is somehow unfair.
(Motion at p. 6).
In Applicants' view, as will be set out below, Pal-metto Alliance.and CESG have failed to demonstrate that-either reconsideration or referral is warranted.
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II. ARGUMENT A. Palmetto Alliance'and CESG have failed to demonstrate that interlocutory review of .
the Bo'ard's-December 1 Order is warranted
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The Board rulings as to which Intervenors seek refer-ral are interlocutory in nature. Interlocutory appeals are disfavored in NRC practice just as ' they are in ~ judicial practice. Consumers Power Company (Midland Plant, Units 1
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- and 2), ALAB-634, l'3 NRC 96, 99 (1981); Public-Service Company of New Hampshire, et al. (Seabrook Station,. Units 1 and 2), ALAB-271, 1 NRC 478, 483.(1975)'. Indeed, the Com-mission's Rules of Practice prohibit interlocutory appeals ,
unless, in the judgment of the. presiding officer, prompt-referral of a ruling for review is warranted pursuant to 10 C.F.R. $2.730(f) in order to " prevent detriment to the public interest or unusual delay or expense," or unless the presiding officer otherwise determines in his discretion to certify such rulings pursuant to 10 C.F.R. $2.718(i).8 1
i 8 Section 2.718(i) has been construed to have the same
. criteria for certification as section 2.730( f) provides for referral -- i.e., that resolution by the Commission is necessary to prevent unusual delay or expense or detriment to the public interest. Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435, 437 (1976).
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- l In accordance with the principle that interlocutory appeals should 'only be entertained 'Where the' public interest so requires, the Appeal Board has consistentlyL i
stated that only the most exceptional circumstances warrant-referral or certification of a Licensing Board's-decision:
Almost without' exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1)_ threatened- ;
- ?the party adversely affected.by it with_immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic - structure of the proceeding in a pervasive or unusual manner. [Public Service Company of Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,-1192 (1977).39 Moreover, the Appeal Board has repeatedly stated that i
interlocutory review is particularly inappropriate when the -
review sought involves specific Licensing Board rulings on the admissibility of individual contentions as issues in a 9 The standard set forth in Marble Hill, supra, has been 1
repeatedly affirme. by the Appeal Board in subsequent cases. Cleveland Electric Illuminating Company, et al.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1110 (1982); South Carolina Electric and Gas Company, et al. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1150-51 (1981); Houston Lighting and Power Company ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); Midland, ALAB-634, s' apra , 13 NRC at 99; Public Service Electric and Gas Com7any (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); Puget Sound Power and Light Company, et al.
(Skagit Nuclear Power Project, Units 1 and 2), ALAB-570, 10 NRC 693, 694-95 (1979). See also Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2), LBP 82-471-02-OL, NRC (November 17, 1982), slip op. at 3.
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proceeding. ; In Project Management Corporation ~(Clinch River Breeder Reactor Plant), ALAB-326, 3 NRC 406, 407 (1976), the Appeal Board stated:
This Board has not the duty, the resources or the inclination to commence a general _ practice of_ arbitrating'at the threshold disputes _over >
what are cognizable contentions --- either under Section-2.718(i) procedures or otherwise.
The Appeal Board indicated tha't Where a licensing board's admissibility ru' ling on a contention does'not appear to be on a " collision course" with governing legal principles, interlocutory review can justifiably be denied. (Id. Eee also Seabrook, LBP-82-471-OL, supra, slip op at p. 3).
Contrary to Intervenors' assertions (Motion at p. 6),
the Appeal Board's acceptance in ALAB-687 of the questions referred by the Licensing Board.does not contradict this general doctrine. The Appeal Board specifically noted in ALAB-687 that "[a] ruling that- does no more than admit a contention to a proceeding -- Whether absolutely or con-ditionally -- has a low potential for meeting [the reqaired standard for interlocutory review]." (ALAB-687, slip op. at )
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- p. 4). Consistent with this position, the Appeal Board l l
specifically declined, as noted above, to determine the validity of each admissibility ruling in issue, but, rather, confined itself to a generic interpretation of Commission regulations. The application of this inter-pretation to the contentions in question was left to the
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Licensing Board. .(pd. at p. 7). Finally, the Appeal Board
-stated in accepting the referral that "[t]his.is not.to be taken, however, as a' repudiation of our general policy disfavoring interlocutory review of licensing board action on specific contentions. That policy remains intact."
(Id.)10 It is.therefore clear,-under the well-established NRC precedent discussed above, that referral to the Appeal Board or the Commission of the admissibility rulings in the Board's December 1 Order is inappropriate unless Inter-venors can carry their burden of demonstrating, as to each separate ruling in question, that the Board's action (1) threatens Intervenors with immediate and serious irreparable harm which could not be remedied by a later appeal, or 10 See also ALAB-687, slip op at p. 18, n.17, wherein the Appeal Board, stated:
It is also worthy of reemphasis that the referred rulings likewise do not embrace any Licensing Board determination respecting (1) l- whether a particular submitted contention was l specific enough to satisfy the Section 2.714(a) l requirements; or (2:) whether there was suffi-cient publicly available information to enable the formulation prior to the prehearing con-ference of an adequate contention on a parti-cular subject. In any event, as previously observed, determinations of that stripe are not suitable candidates for an interlocutory appellate review.
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(2) affects tium basic structure of the proceed-
'ing in a pervasive or unusual manner.
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The. instant Motion. fails to make any.such! showing in regard to Lany of these . rulings. , It is beyond dispute that
. each of'the'r'ulings that Intervenors' complain of: deal
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solely with the Board's refusal to' admit a specific, Catawba-related contention to the proceeding. Intervenors' Motion falls far short of showing that the Board's rulings in this regard are"on a " collision course" with applicable.
NRC law. Indeed, as Applicants have pointed out above (p. !
9, supra), Intervenors' sole argument in support of their-request for referral or certification appears to be that '
the Board's application of the principles enunciated in ALAB-687'is somehow unfair because this instance represents the first such application. ("To apply these novel prin-ciples, as this Board interprets them, in this first in-stance to reject [Intervenors'] environmental. contentions would truly work an injustice.") (Motion at p. 6). Such injustice, according to Intervenors, exists because they contend that the ALAB-687 standards did not exist until after the date for filing of contentions had passed, and thus those standards are not applicable to.this proceeding.
- The application of these standards here, claim Intervenors, affects the basic structure of the proceeding in a pervasive or unusual manner. (Motion at p. 6).
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s- Intervenors' argument has no merit. To begin, no "new" standard was enunciated ~in ALAB-687'with respect to
.their contentions-17 and 18. All the Licensing Board.did
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in its December 1 Order was to . apply the specificity requirements of Section 2.714 in accordance to the Appeal Board's direction. Thus, with respect to those con-
.tentions, Intervenors have not suffered any cognizable injury. As to Intervenors' argument respecting the
" injustice" of application of the Wholly dependent stan-
' dard, Applicants would point out that not only did the
?,ppeal. Board contemplate that such standards would be applied in this proceeding, it has ordered the Licensing Board to do so. (ALAB-687, slip op'. at pp. 14-18).
Moreover, as the Appeal Board noted, determinations (such as those made by the Board on the DES contention) regarding whether a c,ontention is in fact " Wholly dependent" upon a relevant licensing document that was previously unavailable is a matter left to the licensing board and "determin-ations of that stripe are not suitable candidates for an i interlocutory appellate review" (emphasis added). (Id.,
slip op. at p. 18, n.17).
Therefore, for the reasons set forth above, Intervenors' Motion-fails to make the requisite showing to warrant referral.
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B. Intervenors' Discussion Of Specific !
Rulings Fails'To Demonstrate That !
Either Reconsideration Or Interlocutory Review Is Warranted As'noted above, .Intervenors appear to raise essentially two argaments to support their requests for reconsideration or referral. :Intervenors first contest the Board's dismissai of Palmetto Alliance Contention 18 and CESG Contention 17 (Intervenors' Motion at pp. 2-3). The Board'found in its March 5 Order (p. 17) that Palmetto Alliance Contention 18 was "only marginally acceptable from the standpoint of specificity." However, since Palmetto Alliance had indicated at the January prehearing conference that some further specification of the contention cocid be made, the Board admitted it conditionally, stating that "we expect the intervenors to make [ Contention 18] more speci-fic, or to withdraw [it], following discovery."ll(Id.)
11 Intervenors also stress that Palmetto Alliance Con-tention 18 was originally described in the March 5 Order as " relating to the Board's ' core responsibilities' for
' actual safety of construction and operation of the Catawba plant'" (Motion at p. 3). applicants maintain that under NRC law, the admissib'.lity of a proposed contention must be determined only on the basis of the requirements set forth in 10 C.F.R. $2.714. That a contention is perceived to be related to the Board's
" core responsibilities" has no bearing on whether or ,
not that contention satisfies the criteria for admissi- l' bility, and this perception should not be permitted to cure an otherwise defective contention. See Texas Utilities Company, et al. (Comanche Peak Steam Electric
- Station, Units 1 and 2), CLI-81-36, 14 NRC lill, 1114 (1981), wherein the Commission recognized that " all an intervenor need do to support admission of a contention (footnote continued)
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-1181-q Following its vacation ' of the , conditional ' admission of-Palmetto Alliance Contention'18 in its December.1 Order, the ' Board re-examined ~ this contention "frcm the -. standpoint
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t of specificity" and rejected it as " fatally. vague."-
CESG Contention 17 was also conditionally admitted by the Board subject to " clarification of the issue and much greater. specificity following discovery." (March 5 Order at
- p. '27). Th'e Board noted in its March 5. Order (p. 27') that
"[CESG 17] lacks specificity in that it fails to state.how ,
an infestation of the-Asiatic clam Corbicula might affect- l i
the performance of the cooling tower system and why such an effect should be of health and safety concern or impact .the environment." (In a subsequent decision,12 the Board re-affirmed this conditional admission, pointing out that:In-1 tervenors "have the burden of clarification and greater specifi city. " (July 8 Order at pp. 2-3)). After re-examining (footnote continued from previous page)
' is set forth the basis for the contention with reason-able specificity," and ruled that a licensing board's consideration of " core responsibility" (i.e., sua sponte) issues comes into play only When the Board has made the requisite affirmative finding that "a serious safety, environmental, or common defense and security matter exists." The Licensing Board in this proceeding made no such finding and Applicants submit that there is no basis for such a finding. The " core responsibility" aspect of Contention 18 is therefore irrelevant to the question of its admissibility.
. 12 " Memorandum and Order (Overruling Objections Following
! Prehearing Conference, . Denying Requests for Referral to I the Appeal Board, and Addressing Certain Related Questions)," July 8, 1982. (" July 8 Order").
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CESG 17 under the specificity requirement of $2.714 in its December 1 Order, the Board denied its admission.on the basis that it was " fatally vague."'
The gist of Intervenors' argument in support'of re-ferral of the Board's rulings on these two contentions is that the Board's initial conditional admission.of the contentions precludes it from rejecting them in its _ Dec-ember 1 Order.regardless of the holding of ALAB-687:
The Appeal Board's rejection of [the Licensing Board's] assumption of conditional admission authority-can not make these ' marginally' acceptable contentions now ' fatally vague' nor can it put to rest the safety or environmental questions raised by these contentions, and this Board offers no further basis for their rejec-tion now. [Intervenors' Motion at p. 3].
Intervenors' argument misses the mark. The fact that the Board found, in its March 5 Order, that these conten-tions were " marginally acceptable" and therefore admitted them conditionally subject to their being given greater specificity after discovery is immaterial in light of ALAB-687.13 Such act' ion has now been explicitly proscribed by the Appeal Board:
13 In fact, the Licnsing Board has acknowledged the possibility that, in its original consideration of these contentions to determine whether they met the requirements of specificity, it might have been more lenient towards a vague contention because it was relying en its " conditional admission" standard.
(December 1 Order at 4). That is to say, it could have given the benefit of the doubt to a vague contention because it was relying on subsequent actions (in the case of these two contentions, discovery) to provide l the requisite specificity.
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...neither-Section 189a of the Act1nor-Section
-2.714.of the RulesLof' Practice permits the filing of a - vague, : unparticularized contention, - followed by an endeavor to flesh it out through- discovery against the applicant-or staff. . [ALAB-687, slip op. at p.-133 i
Intervenors' arguments simply ignore the fact that this, and other, pronouncements.of the Appeal Board in-ALAB-687.are now the law of this case. While the Appeal
- Board's clear rejection of the concept : of " conditional admission" did not in itself compel a re-characterization of these contentions as " fatally vague," it did compel the Licensing Board to re-examine these contentions to' deter-mine whether, in their existing-form, they satisfied.the j specificity' requirement of 10 C.F.R. {2.714.14 It was only ,
after it had carefully reconsidered Palmetto Alliance No.
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18 and CESG No. 17 in light of this specificity requirement that the Board rejected them as " fatally vague."
, 14 ALAB-687 instructed the Licensing Board to reconsider
, its March 5 and Jul,y 8 Orders "in light of the-views expressed in the foregoing opinion." (ALAB-687, slip op at p. 19). In accordance with this direction, the Board in its December 1 Order vacated relevant portions of these earlier orders, having first ascer-tained that all of the parties to this proceeding agreed that this i action was necessitated by ALAB-687. Then, in order to determine the " appropriate alter-native disposition of the affected contentions," the Board reconsidered "from l the standpoint of specificity" each of the contentions l 4
whose conditional admission had been vacated. (December t 1 Order at p. 4).
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Intervenors' discussion of Palmetto Alliance.Conten-tion 18 and CESG Contention 17 provides absolutely no sup-port for.their assertion ~that the Board's admissibility rulings on these contentions' warrant either reconsideration or referral. As to reconsideration, the discussion above demonstrates that the Motion provides no grounds whatsoever i
for the Board to question its judgment. So far as referral
'is concerned, the Appeal Board has recently ruled that "a licensing board may well be in error but, unless it is
, shown that.the error fundamentally alters the very shape of the ongoing litigation, appellate review must await the issuance of a ' final' licensing board decison." Perry, supra, 15 NRC at 1113.
Intervenors' Motion fails to show any error in the Board's rulings on these two contentions, much less an error egregious enough to merit interlocutory review. The fact that the Licensing Board reconsidered these conten-
. tions in light of the legal standards set forth by the Appeal Board in ALAB-687, and, pursuant to these newly-issued standards, reached a different decision on,admissi-bility than it had originally, is no indication that the Board's December 1 rulings were incorrect. That these two contentions were found in the December 1 Order not to meet
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the ~ requirements 'of $2.714 reflects nothing more than the -
fact that different'~ assumptions.a's to' the.effeet'of $2.714 were being applied by the : Board.
Moreover, as Applicants.have shown above, Palmetto i
' Alliance and CESG have clearly failed to demonstrate how either party ~is threatened.with "immediate and serious irreparable harm which could not be remedied by a later appeal," or how the basic structure oflthe proceeding will be affected "in a pervasivs or unusual manner" by a i
Licensing Board decision not to refer its rulings on these i two contentions. Applicants accordingly submit that Intervenors have not carried their burden with respect to the Board's admissibility rulings on Palmetto Alliance No.
18 and CESG No. 17.
With respect to the other area complained of by' Pal-metto Alliance and CESG, viz, the Board's rejection of DES Contentions 2, 3, 5, 14, 20 and 21 on the basis that'such-were either untimely or not " wholly dependent" on the DES, Applicants maintain that such argument is similarly lacking in merit.
Before addressing Intervenors' untimeliness / wholly dependent argument, Applicants wish to point out the fact that contrary to Intervenors' assertion (Motion at p. 4),
the Board did not reject DES Contentions 2, 5, 20 and 21 solely on the basis of their untimeliness (i.e., their
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- failure to sati'sfy the three-part test set forth in ALAB-- .
687). DES Contention 2 was also rejected ~ for substantive .
,. reasons, including (1) the fact.that the contention assumes a given rate of release of unreacted sulfuric acid despite-Intervenors admitted lack-of knowledge as to what concentration of sulfuric acid-is to be used; and (2) the fact that the effluents:in the cooling tower _ water _(and the pH of the water) are subject to control by state permit, not by the NRC. The environmental effects of the state's determination are then factored into the NEPA analysis, although they are unlikely to affect the cost / benefit ,
balance. (December 5 Order at p. 12).
In addition to finding DES Contentions 5 and 20 untimely, the Board also questioned their basis, i.e.,
whether the current deracing at McGuire due to steam generator problems is somehow applicable to Catawba and should be considered in the Catawba cost-benefit balance.
The Board also questioned whether, in any event, such deratings were not taken into account in the capacity factors relied upon. (December 1 Order at pp. 14-15).
i DES Contention 21 was rejected by the- Board for ~ " lack of a specific basis." (December 1 Order at p. 22). Un-
- timeliness of filing was in no way a basis for the Board's l
2 ruling; accordingly, the grounds on which Intervenors seek l l
referral of the rejection of this contention are incorrect. l 4
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Consequently,'the'only matters at; issue are!the
, Board's rulings with regard to DES Contention 3 and 14.
However, to assist.the-Board in its deliberations, Appli-cants will address each of the DES contentions raised by Palmetto Alliance and CESG which the Board rejected in
~ whole or in part on the grounds of untimeliness.
As to untimeliness and " wholly dependent" concerns, Intervenors argue, citing ALAB-687, that . they are entitled to challenge the adequacy of the Staff's review set .forth in the DES and that such challenge should not be barred on timeliness, or other,. grounds. To hold otherwise, they argue, raises the classic " catch-22" situation (i.e.,
Intervenors have a right to challenge the adequacy of the Staf f's review contained in the DES, but such challenge must be made before the DES is available).
Applicants acknowledge Intervenors' right to challenge the adequacy of the Staff's review contained in the DES upon receipt of the DES. See A1AB-687 wherein the Appeal Board stated:
...in order to put forth a specific cont'ention ,
respecting, for example, the adequacy of an '
environmental impact statement..., one must have had the opportunity to examine the statement....
[ALAB-687, slip op. at pp. 13-14].
However, contrary to how Intervenors would have it, such right is not unrestricted. Rather, since the ch'allenge comes after the time within which original contentions were J
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to have-been1fil'ed,fcare'must be taken~to: assure that.such contentions _are properly with'in the scope of the regu-p lations. : Typically, the _ considerations of 10 C.F.R. 2.714(a)(1)(1-v) would be applied.1 However, in an~ instance iraolving an " institutionally unavailable" document such as the DES, the Appeal Board has specifically _ directed that the three-part test be' applied. See discussion of ALAB-687's enunciation of the three-part test, p. 6, supra. It is the' sense of ALAB-687 that such a test is'necessary in order to assure that, in fact, the untimeliness of a con-tention stems from reasons beyond the control of an intervenor. For example, the first part of the-test (the
" Wholly dependent" test) weeds out contentions Which, While filed under the guise of a challenge to the adequacy of Staff review, raise matters Which are not dependent on the DES, but rather are based on existing information and could have been raised at an earlier date.
That Intervenors are now required by ALAB-687 to meet this untimeliness test for their DES contentions does not
. . place them in a " Catch-22 situation." On the contrary, it i merely places reasonable constraints upon the filing of contentions in this situation, thereby balancing their hearing rights with the need to settle finally on the issues to be considered at hearing as expeditiously and j~ efficiently as possible. In this regard, Intervenors 1.
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. should not tbe permitted to hide behind a" Catch-22" argu-ment. ALAB-687 stands for the proposition that only upon i satisfaction of the three-part test will contentions based on, i.e., the DES be entertained.
Intervenors have simply ignored the application of the three-part test, mainta'ining an unrestricted right to challenge the DES. Such a disregard of'the Appeal Board's ruling warrants denial of the Motion.
Regardless of the paucity of Intevenors' treatment of the three-part' test, an examination of the Licensing Board's rulings with respect to the challenged DES conten-4 tions shows that - the Board properly applied the relevant test. The Board found that such contentions were not wholly dependent upon the DES and thus were properly re-jected as untimely.
In regard to DES Contention 2, the Board noted that sulfuric acid discharge was the subject of a proposed CESG contention during the construction permit (CP) phase of this proceeding. Catawba's cooling system and its operation were considered during the CP stage. Clearly, l Intervenors had a pre-existing interest in this matter.
Inasmuch as the subject of sulfuric aaid emissions is covered in Applicants' Environmental Report (ER), under any i
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" rule of. reason"15 IIntervenors should have examined such material and raised their concern at that timc. To hold that the DES brought this matter to the attention of In-tervenors'for the=first time strains credibility,-parti-cularly in light of Intervenors' pre-existing: interest.
~
1 Further, as'.the Board noted, "the'ER_'and DES do not differ
, in material respect in their discussion of the topic."
12).
(December 1 Order at p. In short, based upon the
- facts relating to this contention, Intervenors cannot be permitted to justify their untimeliness by simply asserting, at this time, that the contention was prompted by what they contend to be inadequate treatment by the NRC Staff in its DES.16
'The Board's discussion of its ruling on DES Contention 3 is equally clear. Pointing out that the use of chlorine in the Catawba cooling towers was described at the CP stage, that changes in methods of application were sub-sequently explained in the ER,a'nd that the discussion in
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15 See e.g., Tr. 414, wherein Intervenors state "the wholly dependent language...has to be considered under a rule of reason."
16 Moreover, Applicants believe that Intervenors' request for reconsideration of this contention should be rejected out of hand because Intevenors have failed to address the' factors set out in Section 2.714(a)(1) as expressly ordered by the Board. (December 1 Order at page 12). Such blatant disregard of a direct Board order works against not only their request for recon-i sideration, but also their request for referral.
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the-OL-DES is not.significantly.different than earlier-treatments of this. subject, the Board. applied the " Wholly 4
dependent" - test- and 'found that this contention 'did not-satisfy it. (December 1 order at'p. 13). Here, too, the Board. conclusion' reached by the application'of the'" wholly.
- dependent" test.is entirely defensible, and Palmetto Alliance and CESG have not demonstrated otherwise.17 Similarly, the Board found as to DES Contentions 5 and 20 that the temporary'derating-of McGuire due to steam generator problems -- the primary basis relied on by In-tervenors for both of these contentions -- "apparently became.public knowledge between mid-1981 and mid-1982,"
well before' issuance of the DES.18 Even more important, . in the Board's opinion, was the fact that Applicants' .ER assumed a capacity factor of 76 percent so that if Intervenors' concern was raised by the 60% capacity factor assumed by the NRC Staff in its DES, surely they should lI have been even more alarmed by Applicants' assumptions.
s Clearly, then, the origin of the "derating" problem was not the DES, and DES Contentions 5 and 20 were not " Wholly dependent" upon that document. Consequently, each of 17 See fn 16, supra.
18 Applicants would point out that one of these Inter-venors, CESG, was a party to the McGuire proceeding 7
and,_as such, was served with copies of the relevant documents relating to such derating in the fall of 1981.
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1 these contentions could'have been submitted'before-issuance.
of_the DES. . Palmetto Alliance and.CESG have failed to show.
how the ALAB-687' test was improperlyLapplied here.
In .evaluatf ng DES Contention 14, . the Board noted that -
the dose commitment analysis snd methodology used in the i-DES (as to Whose " correctness" Palmetto' Alliance and'CESG expressed doubts)' were set forth in documents previously available to Palmetto Alliance and CESG, including Appli-cants' ER and Regulatory Guide 1.109, Revision 1. The o
Board accordingly held that this contention was untimely in that it was not " Wholly dependent",upon the DES and that it could have been proposed prior to the first prehearing conference.19 Palmetto Alliance and CESG have again failed to suggest Why this application of the ALAB-687 untime-liness test was erroneous.20 4
19 Applicants note that, like DES Contention 2, CESG raised the subject of this contention at the con-struction permit stage. See CESG's filing of Sept-ember 20, 1973. Under a rule of reason, Intervenors' concern with this matter should be viewed as predating the filing of the DES.
20 Though Intervenors state (Intervenors' Motion, at p. 4) that the Board dismissed DES Contention 21 on the basis of untimeliness due to the misapplication of the
" Wholly dependent" standard, as noted above, an examination of the Board's December 1, 1982' Order (p.
- 22) reflects that - the contention was "re,iected for lack
, of a specific basis." Accordingly, this matter is not discussed further.
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' Palmetto Alliance and-CESG also express-
~
- dissatisfaction with the Board's rulings lon contentions-
"regarding the adequacy.of agency analysis of th'e environmental costs of defective steam generators, corrosive gases,.or aircraft crashes.'" (Intervenors' Motion at-p. 5). It is unclear Whether or'not Palmetto Alliance-and. CESG are raising objections and/or seeking referral in -
regard to additional rulings here. To the extent that Applicants are able to recognize specific contentions by the descriptions given in this sentence, the Board's ruling-on those contentions are addressed herein. Applicants note that Contention 20, dealing with steam generators, has been discussed above at pp. 27-28. The subject-of " corrosive gases" is dealt with in. DES Contentions 2 (sulfuric acid) and 3 (chlorine). DES Contention 15 (dealing with-the radioactive decay products created by the disintegration of noble gases) could be-characterized as dealing with
" corrosive gases;" however, this contention was rejected for lack of basis and mischaracterization of the DES, not for untimeliness.
, DES Contention 16 faults the DES for not considering
- the consequences of an airplane crashing into the spent fuel pool structure. The Board found in its analysis of l
this contention that it was in no way dependent on the DES, I a e 9
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- much'less " Wholly 4ependent". The Board made. reference-to the detailed discussion in Applicants' FSAR.. In'l.ight of' that discussion, and the conclusions reached 'therein with respect to the extremely low (on the order of 10-7) l probability of such an accident at the plant site (not just the spent fuel pool building), it is unreasonable for
~
Intervenors to attempt to justify their untimely submittal of a contention Which appears to be concerned with aircraft crash consequences by simply asserting that the Staff evaluation of the environmental consequences of such an accident is inadequate. It is therefore clear, as the Board commented, that "a contention with exactly the same factual allegations ~might have been-based on the FSAR and proferred long ago". (December 1 Order at p. 21). In any event, Intervenors have provided absolutely no additional justification Which should cause this Board to change its prior decision.
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III. CONCLUSION For the foregoing reasons, Applicants request that the Board deny Palmetto Alliance and CESG's Motion as lacking in merit.
Respectfully submitted,
, .DLf \,' , DA., ,i fL' l ,0 (,,
. Albert V. Carr,%Jr.
DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704).373-2570 J. Michael McGarry, III Anne W. Cottingham .
DEBEVOISE & LIBERMAN 1200 Seventeenth, Street, N.W.
Washington, D.C. 20036-(202) 857-9833 Attorneys for Duke Power Company, et al.
January 12, 1983 e
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UNITED' STATES'OF-AMERICA '
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY ~AND LICENSING BOARD In the Matter of .)
.) -.
DUKE POWER COMPANY, 'et ~ -
al. ) Docket ~Nos. 50-413-
. ) 50-414 (Catawba Nuclear Station, )
Units 1 and 2)' )
- CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Respsonse To ' Palmetto Alliance And Carolina Environmental Study Group '
Objections To December 1, 1982 Board Order And Motion For Recon-sideration Or In The Alternative For Certification'" in the above captioned matter have been served upon the following by deposit in the United States mail this 12th day of January, 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 Debevoise & Liberman P.O. Box Y 1200 Seventeenth Street, N.W.
Oak Ridge, Tennessee 37830 Washington, D.C. 20036 Dr. Richard F. Foster Richard P. Wilson, Esq.
P.O. Box 4263 Assistant Attorney General Sunriver, Oregon 97702 State of South Carolina P.O. Box 11549' Chairman Columbia, South Caroldina 29211 Atomic Safety and Licensing Board Panel Robert Guild, Esq.
U.S. Nuclear Regulatory Attorney-at-Law Commission P.O. Box 12097 Washington, D.C. 20555 Charleston, South Carolina 29412 Chairman Palmetto Alliance Atomic Safety and Licensing 2135 1/2 Devine Street i Appeal Board Columbia, South Carolina 29205 ,
U.S. Nuclear Regulatory l Commission Washington, D.C. 20555 l l
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Jesse-L. Riley Scott'Stucky 854 Henley Place .
Docketing and Service Station Charlotte, North Carolina-28207 U.S. Nuclear Regulatory Commission Henry A.-Presler Washington,.D.C. 20555 Charlotte-Mecklenburg Environmental' Coalition 943 Henley Place Charlotite , North Caroldina 28207'
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