ML20028G687
| ML20028G687 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/11/1983 |
| From: | Raskin D FLORIDA POWER & LIGHT CO., HOUSTON LIGHTING & POWER CO., IES UTILITIES INC., (FORMERLY IOWA ELECTRIC LIGHT, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, PUGET SOUND POWER & LIGHT CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8302170305 | |
| Download: ML20028G687 (19) | |
Text
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. NUCLEAR REGULATORY COMMISSION N0'3g
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In the Matter of )
)
DUKE POWER COMPANY, ET AL. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
BRIEF AMICUS CURIAE ON BEHALF OF FLORIDA POWER & LIGHT CO.,
HOUSTON LIGHTING & POWER CO.,
IOWA ELECTRIC LIGHT & POWER CO.
AND PUGET SOUND POWER & LIGHT CO.
Maurice Axelrad David B. Raskin Counsel for Amici Curiae Lowenstein, Newman, Reis & Axelrad, P.C.
1025 Connecticut Ave.
N.W.
Washington, D.C. 20036 February 11, 1983 I
' ^
8302170305 830211 PDR ADOCK 05000413 0 PDR
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- TABLE OF CONTENTS Page -
I. Section 189a Of The Atomic Energy Act Does Not Require ASLB's To Give Controlling Weight To The Good Cause Factor In The Case of A Late-Filed Contention Based Solely Upon The Prior Unavailability Of A Licensing Document . . . .
^
. . 2 II. Licensing Boards Should Retain The Discretion To Reject Untimely Contentions Even If Based Solely On The Unavailability Of Licensing Documents When A Balance Of The Five Factors Clearly Supports Such A Result . . . . . . . . . . . . . . . . . . . 8 III. Good Cause Does Not Exist For Filing A Late
! Contention Based On The Unavailability Of A Licensing Document Where The Information Relied Upon To Frame The Late Contention Was Available Earlier . . . . . . . . . . . . . . . . . . . . . . 11 I
l
11 TABLE OF AUTHORITIES
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CASES: Page A. JUDICIAL DECISIONS BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974) . . . . . . . . . . . . . . . 3, 4 Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980) . . . . . . . . . . . . . 4, 6 Easton Utilities Comm'n v. AEC, 424 F.2d 847 (D.C. Cir. 1970) . . . . . . . . 7 FPC v. Texaco, 377 U.S. 33 (1964) . . . . . . . . 6 ICC v. Jersey City, 322 U.S. 503 (1944) . . . . . . . . . . . . . . . . . . . 8 United States v. Storer Broadcasting Co.,
351 U.S. 192 (1956) . . . . . . . . . . . . . 6 Weinberger v. Hynson, Westcott &
Dunning, Inc., 412 U.S. 609 (1973) . . . . . . 5, 6 B. ADMINISTRATIVE DECISIONS Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB - 590, 11 NRC 542 (1980) . . . . . . . . 7 Northerr. States Power Co. (Prairie Island Units 1 and 2), ALAB - 107, 6 AEC 241 (1973) . . . . . . . . . . . . . . . 6, 12 l
! Nuclear Fuel Service, Inc. (West Valley I Waste Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975) . . . . . . . . . . . . . . . 8, 9 l
STATUTES and REGULATIONS:
A. STATUTES Atomic Energy Act of 1954 S189a, 42 U.S.C. S2239 (a) (1976) . . . . . . . . . . passim
iii Page Federal Water Pollution Control Act .
Section 402 (a) (1) , 33 U.S.C.
s 1342 (a) (1) (1976) . . . . . . . . . . . . 5 Federal Water Pollution Control Act (1972 amendments), Pub. L. No.92-500, 86 stat 816 (codified in scattered sections of 33 U.S.C.) . . . . . . . . . . . . 4 B. REGULATIONS 10 CFR Part 2 S 2.714 (a) (1) . . . . . . . . . . . . . . . . passim S 2.714 (b) . . . . . . . . . . . . . . . . . passim -
MISCELLANEOUS:
37 Fed. Reg. 15,127 (1972) . . . . . . . . . . 9 43 Fed. Reg. 17,798 (1978) . . . . . . . . . . 9 l
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I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) ,
)
DUKE POWER COMPANY, ET AL. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
BRIEF AMICUS CURIAE ON BEHALF OF FLORIDA POWER & LIGHT CO., HOUSTON LIGHTING & POWER CO., IOWA ELECTRIC LIGHT & POWER CO. AND PUGET SOUND POWER & LIGHT CO.
In an Order dated December 23, 1982, the Commission directed the parties in the above-named proceeding to submit briefs addressing two issues arising out of the Atomic i
Safety and Licensing Appeal Board's (Appeal Board) decision
! in ALAB-687. The Commission also invited other interested persons to submit briefs amicus curiae addressing these two issues. This brief is submitted on behalf cf Florida Power
& Light Co., Houston Lighting & Power Co., Iowa Electric Light & Power Co. and Puget Sound Power & Light Co. Each of the above investor-owned electric utility companies either seeks or possesses a permit to construct or a license to operate one or more nuclear power reactors. As such each is interested in significant issues, such as those posed by the Commission in this case, which may affect the orderly and expeditious functioning of the Commission's adjudicatory pro-Cess.
r s
1 We do not intend to address all of the matters encom-passed vithin the two issues posed by the Commission. Rather, .
we use this opportunity to expand upon and clarify matters addressed in ALAB-687 and in the briefs of the parties. In addition, as shown below, we would answer the Commission's first issue and strike the ultimate balance of interests in this case somewhat differently than have the Appeal Board, the NRC Staff and the Applicants.
I. Section 189a Of The Atomic Energy Act Does Not Require
- ASLB's To Give Controlling Weight To The Good Cause Factor In The Case Of A Late-Filed Contention Based Solely Upon The Prior Unavailability Of A Licensing 4
Document The first issue posed by the Commission asks whether Section 189a of the Atomic Energy Act (42 U.S.C. S 2239(a))
requires that Atomic Safety and Licensing Boards "give con-trolling weight to the good cause factor in 10 C.F.R. 5 2.714 (a) (1) (i) in determining whether to admit a late-filed contention that could not be filed in a timely manner because the ' institutional unavailability' of licensing related docu-ments precluded the timely formulation of that contention with the requisite specificity." The Appeal Board appears to have I held that Section 189a does so require:
It does not follow . . . that Section 2.714(b) can serve to bar the later assertion of a new contention founded upon information not in existence or publicly available 15 days prior to the special prehearing conference, but which is nonetheless an essential element of the
license application or the Staff's prehear-ing review. Indeed, if so interpreted, the Section would sanction an unfair 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).
(ALAB-687, Slip Op. at 11 (emphasis added).) Later, the Appeal Board stated that such a requirement "would render nugatory Section 189a hearing rights." (ALAB-687, Slip Op.
at 17).
We disagree. We see nothing in Section 189a which requires the Commission to grant to a petitioner an unqualified right to a hearing, even if his petition is filed on time. We see even less in Section 189a which would prohibit the Commission from adopting and implementing reasonable regulations concerning the factors that must be considered when a petition is filed late--whether or not the lateness is the fault of the petitioner.
It is well established that the Commission may adopt regu-lations directed at the filing of contentions by petitioners
! to intervene. In BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974), the Court held that the Commission had discretion to impose, by regulation, a requirement that petitioners to intervene in NRC licensing proceedings provide some specification of the issues they wish to have addressed in order to obtain a hearing under Section 189a. Section l
! 2. 714 (b) of the Commission's regulations, upheld in that case, imposes such an obligation by requiring that petition-ers state the " basis" for their contentions with " reasonable i
specificity."
Since the hearing rights under Section 189a are not absolute, the issue raised in this case is whether the Commission's requirement that the five factors set forth in Section 2.714 (a) (1) be considered in ruling on a late pe-tition represents a reasonable exercise of the Commission's authority under Section 189a. The court did not address this issue in BPI. In view of the basic principles espour,ed in BPI and the cases we cite below, however, we see no legal impediment to the application of the foregoing five factors even in cases, as the instant one appears to be, where the late petition is based on information previously unavailable. /
On several occasions the Supreme Court has held that federal statutes which confer hearing rights in administrative proceedings do not confer an unqualified right to hearing; those who seek a hearing can be required to make a threshold i
l showing of " substantiality" or " materiality" of the matters they seek to have addressed. In Castle v. Pacific Legal Foundation, 445 U.S. 198 (1980), the Court upheld a regula-tion of the Environmental Protection Agency, promulgated under the 1972 Amendments to the Federal Water Pollution Control Act (33 U.S.C. S 1256) that conditioned an adjudicatory hearing upon a showing by an interested person that " material issues of fact" exist with respect to the issuance of an NPDES permit. The regulation at issue implemented the
-*/ We emphasize that we do not quarrel with the result that may be reached by giving " good cause" heavy weight in some circumstances. We argue only that Section 189a of the Atomic Energy Act does not prevent the Commission from j
permitting its licensing boards to consider all five factors in every case and to strike an appropriate balance.
statutory command- that permits be issued "after opportunity for public hearing." (FWPCA Section 402 (a) (1) , 33 U.S.C.
S 1342 (a) (1) .) The Court reversed a decision of the Court -
of Appeals invalidating the regulation:
[The Court of Appeals) holding is contrary to this Court's approval in past decisions of agency rules, similar to those at issue here, that have required an applicant who '
seeks a hearing to meet a threshold burden of tendering evidence suggesting the need for a hearing.
(445 U.S. at 214 (citing, e.g., Weinberger v. Hynson, Westcott
& Dunning, Inc., 412 U.S. 609, 620-21 (1973).)
In Weinberger, the Supreme Court upheld Food and Drug
, Administration regulations implementing Section 505 (e) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. S355 (e) ,
which required the FDA to give "due notice and opportunity for hearing" to applicants for FDA approval of new drugs. By I
regulation, FDA had required applicants requestir.g a hearing to provide reasons why the application should be considered, "together with a well-organized and full factual analysis" of the " clinical" and " investigational data" which the applicant had in support of its position. (412 U.S. at 620). Thus, absent a " genuine and substantial issue of fact" FDA would not provide a hearing. (412 U.S. at 620). The Supreme Court upheld this scheme, stating:
There can be no question that to prevail at i
a hearing an applicant must furnish evidence stemming from " adequate and well-controlled investigations." We cannot impute to Con-gress the design of requiring, nor does i due process demand, a hearing when it i
appears conclusively from the applicant's
" pleadings" that the application cannot
- succeed.
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. (412 U.S. at 620-21 (footnote omitted)). The Weinberger Court relied upon United States v. Storer Broadcasting Co.,
351 U.S. 192, 205 (1956) and FPC v. Texaco, 377 U.S. 33, 39 (1964) for the rule that agencies may deny a hearing at the threshold if the request therefor does not meet minimum t
standards of substantiality. (412 U.S. at 620) .
The Appeal Board earlier recognized that the Commission has authority, consistent with Section 189a, to promulgate regulations imposing threshold substantive requirements on intervention petitions. Northern States Power Company (Prairie Island Units 1 and 2), ALAB-107, 6 AEC 188, 191, affirmed, CLI-73-12, 6 AEC 241 (1973). We can perceive no legal reason why the threshold must be lower in NRC hearings than in hearings before the other agencies at issue in the Supreme Court cases
- /
i cited above.-
l The Commission's existing requirement in Section 2.714 (a) (1) that five factors be considered in determining whether to admit a late-filed contention essentially reflects a judgment to require a higher threshold for such contentions than the mere " basis" and " specificity" requirements of Section
- 2. 71/. (b) . Just as Section 189a would permit the Commission l
to impose " materiality" and " substantiality" requirements for
-*/ The Supreme Court in Costle noted explicitly that the legislative history of the FWPCA indicated a strong Congressional desire to permit public participation in the permitting process established under that Act.
(445 U.S. at 215).
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all contentions,1/ it also permits the Commission to impose more stringent requirements for late-filed contentions because _
of the additional public interest considerations implicated in such instances. Easton Utilities Commission v. AEC, 424 F.2d 847, 852 (D.C. Cir. 1970).
The five factors in Section 2.714 (a) (1) reflect the Commission's recognition that hearing rights under Section ,
189a are not unqualified. Although these factors do not expressly require licensing boards to assess the "sub-stantiality" of late-filed contentions, the appropriate considerations are not unrelated to the substantiality of the issues raised. Only with the merits of a con-tention in mind, for example, can a licensing board meaningfully assess whether a petitioner's interest will be protected (52. 714 (a) (1) (ii) ) or whether he will assist in developing a sound record (S 2. 714 (a) (1) (iii) ) . The other factors in Section 2.714 (a) (1) reflect the need for a higher threshold in light of the additional principle that where a matter is untimely raised, other legitimate and important considerations affect the appropriate balance of interests governing the decision to grant or deny a hearing. See,
-*/ As presently interpreted, Section 2.714(b) requires a negligible, if any, showing of " substantiality" or
" materiality" of contentions. Houston Lighting &
Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980).
Nuclear Fuel Services Inc. (West Valley Waste Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975). gf., ICC v. Jersey -
City, 322 U.S. 503, 514 (1944). And, while the use of the five factors in this context increases the showing required to obtain a hearing, we are at a loss to understand how this requirement would render Section 189a hearing rights "nuga-tory." To the contrary, no party has cited and we know of nothing in the Atomic Energy Act or the case law, which conditions the Commission's authority to limit tardy inter-vention in the manner required by the Appeal Board.
II. Licensing Boards Should Retain The Discretion To Reject Untimely Contentions Even If Based Solely On The Unavail-ability Of Licensing Documents When A Balance Of The Five Factors Clearly Supports Such A Result For these reasons, we conclude that Section 189a does not impose the legal requirement that licensing boards give control-ling weight to the good cause factor in every case where a lat'- e filed contention is based solely on the nonavailability of a licensing-related document. Nevertheless, without explicitly stating that the Atomic Energy Act so requires, the Applicants and Staff conclude that it is reasonable to give controlling weight to the good cause factor in such a situation. In doing i
so, we submit that they have overlooked important' countervailing considerations.
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Although' we agree that in many cases this result
- would be proper, and would be reached by licensing boards l
! employing the five factors in S 2.714 (a) (1) (See NRC Staff Brief at 12-13) , we believe that licensing boards should retain the discretion to reject contentions where a balance of all five factors indicates that the contention should not be admitted.
In its West Valley decision, CLI-74-5, the Commission concluded that even where there is good cause for a late filing, i.e., where tardiness is through no fault of the filing party, this factor should weigh heavily in favor of admission, but not be dispositive. This ruling, which was subsequently codified as part of the Commission's regula-tions, 43 Fed. Reg. 17798 (April 26,1978) , is fully applicable here.* /
We agree that in the situation presented in this case, where the contention is based solely on information contained in a licensing document and not previously available to the
-*/ In 1972 the Commission substantially restructured its licens-ing procedures to alleviate the then "widely shared concern" that the process was not equipped to afford timely decisions on license applications. 37 Fed. Reg. 15127 (July 28, 1972).
One of the changes instituted at that time was to provide for the issuance of a notice of hearing shortly after an operating license application is docketed. In so doing, the Commission obviously knew that information in not-yet-issued Staff licensing documents would not be available for the framing of contentions at the time the notice was published.
Yet, it gave no indication that special " pleading" rules were necessary to compensate for this potential problem.
petition, a contention should be rejected as untimely only if there exist substantial grounds for doing so, -
i.e., the other factors weigh heavily against admission.
But, we can also foresee situations in which admission l would not be appropriate. ,
In recent years, licensing proceedings have grown in-creasingly lengthy and it is not unusual for the Staff and/or Applicants to file supplemental licensing documents at the later stages of a proceeding in order to address regulatory changes or to resolve previously "open" issues. At the later stages of a proceeding new contentions - even if they are of an obviously trivial nature - may have a significant impact on the timely completion of the licensing review process. In addition, at a late stage of the proceeding, licensing boards should have an indication of the serious-ness of an intervenor's previous efforts to support his/her contentions with meaningful testimony and/or cross-exami-nation. Especially in such cases, we think it would be inappropriate and unfortunate for licensing boards to be arbitrarily foreclosed from considering factors other than
" good cause" in determining the admissibility of a con-tention.
Finally, if, notwithstanding the absence of a statutory i requirement therefor, the Commission adopts a per se rule of I
admissibility for late-filed contentions in the limited 1
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circumstances here involved, we would make three additional comments. First, we believe that licensing boards should be directed to scrutinize closely contentions allegedly based solely on newly-issued licensing documents to ensure that this is indeed the case. As both the Staff and the Applicants have emphasized, the per se rule, if adopted, should be strictly construed and narrowly applied. Second, if the per se rule is adopted, the Commission should nevertheless direct that persons moving the admission of late-filed contentions be re-quired in all cases to address the five factors in 52.714 (a) (1) at the time they submit their contentions; licensing boards may then decide whether or not it is appropriate to address all of the five factors without the delay inherent in requiring a second filing. Third, the Commission should remind licensing boards of the policy considerations favoring the timely comple-tion of proceedings and encourage the boards to utilize many of the available mechanisms for expediting pre-hearing activities to minimize or prevent any delays arising from the admission of late-filed contentions.
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III. Good Cause Does Not Exist For Filing A Late Contention Based On The Unavailability Of A Licensing Document l Where The Information Relied Upon To Frame The Late
- Contention Was Available Earlier i
We emphatically agree with the Applicants and Staff that i " good cause" for a late-filed contention does not exist where
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the information upon which the contention is based is available prior to its appearance in a licensing document and within the -
time allowed for filing contentions. As the Appeal Board made clear, petitioners to intervene in NRC proceedings have:
an ironclad obligation to examine the publicly available documentary material pertaining to the facility l in question with sufficient care to
! enable [them} to uncover any informa-tion that could serve as the foundation for a specific contention.
(ALAB-687, Slip op. at 13 (citing ALAB-107, 6 AEC at 190).)
i As the Applicants and Staff also point out, this result should not change simply because a contention states that it is based on inadequacies in the Staff's evaluation of a particular matter in the SER or FES. The important consideration is whether the factual information which forms the subject matter of the contention was previously available. If, and only if, the Staff provides new factual information would the later avail-(
! ability of a Staff licensing document provide the basis for a showing of good cause.
The Appeal Board appears to distinguish contentions based upon the FES, since the Staff has the ultimate 1
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responsibility to satisfy NEPA. (ALAB-687, Slip op. at 14 n. 14,1 We see no basis for imposing this distinction. -
The fact that the Staff ultimately has responsibility to address environmental concerns under NEPA does not in any way alter the obligation of parties to frame adequate contentions at the outset of licensing proceedings. If the factual information which is the basis for a contention (environmental or otherwise) is earlier available, a petitioner or intervenor should bring forward his/her concerns immediately and not await the mere possibility that the Staff will later alter or alleviate those concerns in its licensing documents.
Respectfully submitted,
.[
Lowenstein, Newman, Maurice Axelrad Reis & Axelrad, P.C. David B. Raskin 1025 Connecticut Ave.
N.W. Counsel for Amici Washington, D.C. 20036 Curiae l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I In the Matter of )
)
DUKE POWER COMPANY, ET AL. ) Docket Nos. 50-413
) 50-414 -
(Catawba Nuclear Station, )
i Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the Brief Amicus Curiae ,
On Behalf Of Florida Power & Light Co. et al. in the above captioned matter have been served upon the following by deposit in the United States mail this 11th day of February, f
1983.
James L. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
' Dr. A. Dixon Callihan Albert V. Carr, Jr., Esq.
Union Carbide Corporation Duke Power Company P.O. Box Y P.O. Box 33189 Oak Ridge, Tennessee 37830 Charlotte, North Carolina 28242 Dr. Richard F. Foster J. Michael McGarry, III P.O. Box 4263 Debevoise & Lieberman Sunriver, Oregon 97702 1200 17th Street Washington, D.C. 20036 i
Chairman Atomic Safety and Licensing Richard P. Wilson, Esq.
Board Panel Assistant Attorney General U.S. Nuclear Regulatory State of South Carolina Commission P.O. Box 11549 Washington, D.C. 20555 Columbia, South Carolina 23211 Chairman Atomic Safety and Licensing Robert Guild, Esq.
l Appeal Board Panel Attorney-at-Law U.S. Nuclear Regulatory P.O. Box 12097 Commission Charleston, South Carolina Washington, D.C. 20555 29205 ,
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Jesse L. Riley Palmetto Alliance 054 Henley Place 2135 1/2 Devine Street Charlotte, North Carolina Columbia, South Carolina 29205 -
28207 Scott Stucky Henry A. Presler Docketing and Service Section Charlotte-Mecklenburg U.S. Nuclear Regulatory Environmental Coalition Commission 943 Henley Place Washington, D.C. 20555 Charlotte, North Carolina 28207
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David B. Raskin
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