ML20028G694
| ML20028G694 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/14/1983 |
| From: | Jordan W, Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20028G689 | List: |
| References | |
| NUDOCS 8302170312 | |
| Download: ML20028G694 (19) | |
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UNITED STAU) DV3 AkEkk BEFORE THE NUCLEAR REGULATORY. COMMISSION
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In the Matter of )
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DUKE POWER COMPANY, et al. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
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BRIEF OF THE UNION OF CONCERNED SCIENTISTS AS AMICUS CURIAE IN RESPONSE TO COMMISSION QUESTIONS By. Order of December 23, 1982, the Commission accepted review of ALAB-687 with respect to two specific issues concerning the circumstances under which the " institutional unavailability" of information justifies the admission of contentions filed after the deadline established by 10 C.F.R. 2.714(b). TLe Commission stated those issues as follows:
- 1. Does section 189a of the Atomic Energy Act of 1954, as ' mended, require an Atomic Safety and Licensing-Board to give controlling weight to the good cause factor in 10 C.F.R. 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 documents precluded the timely formulation of that contention with the requisite specificity?
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- 2. Is there " good cause" for filing a late contention when the reason given for late filing is the previous " institutional unavailability" of an agency document, e.g., the FES, but the information relied on was available early enough to provide the basis for a timely filed contention, e.g. in an applicant's environmental report?
In view of the generic nature of these issues, the Commission invited amicus briefs by interested parties. The Union of Concerned Scientists ("UCS"), which has participated in a number of Comaission licensing proceedings, files this brief pursuant to that request.
UCS agrees with all of the parties to the proceeding below that the first question must be answered in the affirmative.
To rule otherwise would be to allow applicants and the NRC Staff to delay making essential information available to the public in an attempt to prevent prospective intervenors from litigating issues related to that information. Such control of the rights of one party by its adversaries would be grossly unfair and cannot have been. intended by Congress.
Since there is no dispute among the parties with respect to the first issue, we will not address it here. We urge the
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Commission simply to answer it in the affirmative. We also caution the Commission not to attempt to provide detailed guidance in a vacuum. The application of this principle to particular circumstances will be controlled by the facts, which should not be prejudged here.
I We address below the issues raised by the Commission's second question. We urge the Commission to reject the attempt by the Applicant and the Staf f to restrict intervenor rights under the National Environmental Policy Act through the 4
i misapplication of the timeliness criteria. We also urge the Commission to rule that contentions related to reactor safety are timely if filed within a reasonable time after the issuance of the Staf f's Safety Evaluation Report. Finally, we recommend that the Commission provide specific guidance with respect to the area of emergency planning. As discussed below, there are a number of points at which it can be argued that intervenors have enough information to formulate some sort of emergency planning contention; however, only after the local emergency plans have become available is the information sufficiently firm to justify litigation.-
I. " Institutional Unavailability" of the DES Constitutes Good ! Cause for Filing a Late Contention Regardless of The Extent of Information Contained in the Applicant's Environmental Report.
The National Environmental Policy Act, 42 U.S.C. 4321, et seg., requires the Commission to consider the environmental consequences of proposed licensing actions. Calvert Cliffs' Coordinating Committee v. U.S. Atomic Energy Commission, 449 F.2d-1109 (D.C. Cir. 1971). In so doing, the Commission O
must take a "hard look" at those consequences, Kleppe v. Sierra ,
l Club, 427 U.S. 390, 410 n. 21 (1976), and it must balance the l environmental costs of its actions against the benefits. 10 C.F.R. 1505.2(b). It must also examine the possible means of mitigating any environmental harm that its actions may cause.
Public Service Co. of New Hampshire v. U.S. Nuclear Regulatory Commission, 582 F.2d 77, 85-85 (1st Cir. 1978). These principles are by now well accepted; they are embodied in Part 51 of the Commission's regulations.
The question of whether an intervenor must develop and file environmental contentions on the basis of the applicant's Environmental Report or on the basis of other information that
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is available before the Staff issues the Draft Environmental Statement must be answered in light of the requirements of NEPA. Except to the extent that it overlaps with a safety
' issue, any environmental contention constitutes a challenge on i'
one of two grounds. First, the contention may allege that NEPA's p'rocedural requirements have not been complied with because, for example, the range of alternatives or potential mitigating actions is inadequate, the agency has failed to consider certain facts, or the factual analysis is incorrect.
Second, the contention may challenge the conclusion reached in
, light of the environmental analysis. It may allege, for I example, that the license should be denied or that certain l mitigating actions should be taken in light of the
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environmental harm from the proposed action. In either case, the contention ultimately challenges the Commission's compliance with NEPA.
Only the Commission can comply with NEPA. In so doing, the Commission may not simply rely upon information and analysis provided by someone else, even if that analysis is essentially perfect and would fulfill NEPA's mandate had it been performed by the Commission. Sierra Club v. Hodel, 544 F.2d 1036, 1043-44 (1976). Rather, the Commission "must bear responsibility for the ultimate work product designed to satisfy" NEPA. Essex County Preservation Association v.
Campbell, 536 F.2d 956, 960 (1st Cir. 1976). The commission may obtain its information from the applicant or from any other.
source, but ultimate compliance with NEPA depends upon the Commission conducting an independent review and analysis to reach an independent conclusion. 10 C.F.R. 51.20(b), 51.21.
Information provided by the applicant and others serves only to aid the Commission in carrying _out this independent responsibility. 10 C.F.R. 51.20(b).
Under Commission procedures, the Staff is responsible for
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gathering the relevant information and performing the required analyses. If the Staff has failed to meet that responsiblity, the license must be denied for failure to comply with NEPA.
This is true regardless of the actions of other parties.
Indeed, even if the applicant presents a strong case that would D
suffice if it had been presented by the Staff, the license must be denied if the Staff itself has not met its burden. Boston Edison Co.(Pilgrim Nuclear Generating Station, Unit 2),
-ALAB-479, 7 N.R.C. 774, 792-94) (1978).
Thus, there is nothing to challenge under NEPA until the e Staff's analysis has become available, which first occurs when the DES is issued. Only then is it possible to evaluate the agency's compliance with NEPA and determine whether there is any basis for a contention based on environmental considerations. The appliant's Environmental Raport contains no information with which it is possible to determine whether the agency will comply with NEPA. It serves only to provide initia'l information to the Staff and has no legal significance under NEPA by itself.
The Staff and Applicant argue that intervenors should be l required to develop environmental contentions on the basis of the Applicant's Environmental Report as long as the subject of concern 't'o the intervenor is covered in the Environmental Report. The Staff argues, for example, that if the contention claims that insufficient weight was given to the environmental cost of a particular plant effluent, there is no reason why such a conten-tion, based on facts contained in the enviro.imental
[ report, could not have been timely filed.
NRC Staf f Brief at 16. Similarly, the Applicant argues that l Intervenors' DES Contention 16 in this case is untimely because it challenges the DES' failure to address a low probability l
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occurrence when the Applicant's FSAR had shown that the
- likelihood of such an accident was extremely low. Applicant's Response at 21-23.
These arguments ignore the fact that environmental contentions must be based on NEPA, and that NEPA compliance cannot be evaluated until-the DES is available. The Staff's example is useful here. A contention that an applicant gave "insuf ficient weight . . . to the environmental cost of a particular plant effluent" does not state a claim that is legally cognizable under NEPA. The applicant has no obligation to weigh environmental costs; thus its failure to do so correctly cannot be challenged. Only the NRC has that obliga' tion. Only the Staff's failure to give sufficient weight to a particular environmental cost gives rise to a NEPA claim. It is impossible to determine whether such a claim exists until the Staff's analysis is available to the public.
In terms of the Commission's question, the staff's handling of the eEvironmental issues (in this case the weight to be given to the cost of a particular plant effluent) is the "information (elied on" as the basis for an environmental contention. Until the Staff's analysis is available, there can be no such information, in the Environmental Report or elsewhere. Accordingly, an environmental contention cannot be untimely if it is filed within a reasonable time after the Staff's analysis becomes available, regardless of whether the P
l original contention filing deadline has. passed.
For the same reason, it is impossible to determine whether the Staff has adequately considered a low probability accident j until the Staff's analysis is available. The fact that the l Applicant believes the probability of such an accident to be j extremely low is irrelevant. Only the Staff can make that determination for NEPA purposes. Regardless of the evidence presented by the Applicant, only the Staff can carry the burden of proof on that point in a hearing. Boston Edison Co.,
supra. Accordingly, it is not possible to develop a contention challenging the handling of such an issue until the DES has been issued.1 1 Thus, Intervenors' DES Contention 16 should be admitted in this proceeding. The same is true of Intervenors' DES Contention 14, also discussed by the Applicant. Applicant's Response at 23-24. Applicant argues that Contention 14 should be denied as untimely because, as described by the Applicant, 1
it challenges a staff methodology that was embodied in a Regulatory Guide and established before the deadline for filing contentip,ns in this case. But it is grossly unreasonable to require intervenors to be intimately familiar with every Regulatory Guide and other-internal NRC document that may have some bearing on a proposed reactor. In addition to the fact that intervenors simply do not have the resources to be l familiar with.all such material, there is no reasonable basis to expect that they should be. Intervenors participate in NRC hearings because they are concerned with the impact of a reactor in their area. This particularlized impact is the source of their standing to participate. It is reasonable, therefore, to expect intervenors to examine, become familiar with, and base contentions on information concerning the i particular impacts of that reactor, but not to expect them to j become familiar with every generally applicable Statf l methodology. Unless a Stoff methodology has been used ir a prior document related to the particular reactor, that r methodology is entirely abstract and meaningless to an i intervenor until it is employed in the DES, and the practical l impacts of that methodology in that area become reasonably ,
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~ 1 The Staff's and Applicant's position that environmental contentions must be based on information contained in the Applicant's Environmental Report would be valid only if it could be assumed that the DES would reflect.the failures and inadequacies of the Environmental Report on which the contentions might be based. As a matter of law that assumption is invalid and contrary to public policy. The public must assume that the agency Staff will fulfill its statutory mandate and will go beyond the Environmental Report or reach conclusions contrary to t' ise of the Applicant where necessary to comply with the statute. Accordingly, environmental contentions based on the Applicant's information amount to sheer speculation that the Staff will not perform its duties.
As such, they are grossly premature and would-presumably be dismissed by the Licensing Board as lacking the factual foundation required by 10 C.F.R. 2.714. They cannot be timely l
until the, Staff itself has completed its analysis and demonstrated whether it is meeting its statutory obligations.2 2 This is not a legal nicety designed, as the Applicant cuggests, to circumvent the filing requirements. It is based on fundamentul principles of NEPA and concepts of when issues are ripe for litigation. It is also supported by the practical consideration that a requirement to file premature contentions constitutes an unfair burden on intervenors and wastes the time and resources of the Licensing Boards and of all the parties.
II. " Institutional Unavailability" of the Safety Evaltation Report Constitutes Good Cause for Filing a Late Contention.
The Safety Evaluation Report is prepared by the NRC Staff on the basis of extensive materials provided by the applicant and, presumably, on the basis of thorough safety reviews by the Staff. It is a document of manageable size that is readily available to intervenors. More important, it reflects the view of the Commission Staf f, which has a statutory mandate to assure reactor safety.
t The question of when reactor safety contentions must be filed should be governed by several factors. Most important of those .are (1) the public's right to expect the NRC Staff to perform its statutory duty of protecting the public safety, (2) the statutory policy of assuring a full and fair hearing on safety issues of concern to the public withgut undue delay or disruption, and (3) the ability of intervenors reasonably to examine information and formulate contentions. All of these factors dictate that reactor safety contentions should be considered to be timely if they are filed within a reasonable
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time after the SER is issued.
The single most important consideration is the fact that the Staff is required by statute to assure reactor safety.
While the applicant is required to meet various requirements in-order to obtain a license, it is not directly responsible for compliance with the Atomic Energy Act. The public has a right
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l to expect that the Staff will require the applicant to take whatever actions are necessary to achieve that goal. Thus, the j i
public has the right to assume that the Staff will require l correction of any deficiencies in reactor safety that may be reflected in the documents filed by the applicant, incloding .
i the FSAR. To require intervenors to act on the basis of Phe FSAR is to require what may well be a meaningless exercise if the Staf f f ulfills its own responsiblity in preparing the SER, I If the Staff is truely independent of the applicant, and if it is using its own judgment on behalf of the public, the SER is the basic safety document on which the public should be entitled to base its judgments.
It'is important that the Commission consider the purpose of its hearings and its regulatory requrements governing the formulation of contentions. In addition to providing a forum for the resolution of technical disputes, the hearing process should serve to assure the public that the issues are being addresse'd thoroughly by the Commission. Thus, the procedural l
requirements governing the admission of conteations should not serve as trapa designed to minimize the extent of intervenor participation, but as a framework for facilitating a reasonable i
hearing process. In that light, the SER should L( the determinative document. Not ony is it prepared by the public servants on whom the public is entitled to rely, it summarizes l
all of the major issues in manageable form, and it is readily i
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v available at a clearly specified time. Reliance upon the SER eliminates the need for burdensome seaching of arcane documents and FSARs written in language virtually unintelligible to the public. It also eliminates guesswork about one of the most important deadlines, thereby eliminating or minimizing arguments and licensing board time that is wasted on timeliness disputes.
Finally, reliance on the SER as the determining document for the purpose of timeliness of safety contentions does not prejudice applicants. Rather, it minimizes the amount of hearing time and expense prior to the time the SER is issued, and it allows orderly litigation from that point forward. In addition, it should be attractive to applicants in that it increases the incentive of the NRC Staff to proceed expeditiously in producing the SER.
III. " Institutional Unavailability" of Off-Site Emergency Pl'dna of Local Governments should Constitute Good Cause for Late Filing of Related Emergency Planning Contentions.
The Appeal Board below and the Staff appear to agree that off-site emergency planning contentions are premature until the local emergency plans are available. ALAB-687, Sl. op. at 14 &
- n. 14; NRC Staff Brief at 17 n. 7. Applicants disagree, seeking to rely upon regulations, regulatory guides, generic state plans, and existing plans at other nuclear facilities as
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F pre-existing information such that emergency planning contentions are untimely if not filed until after the local plans are available. Applicant's Response at 15 n. 6. In light of the complexity of the process through which emergency plans are developed, and of the confusion that this has caused in at least one proceeding of which UCS is aware, there is a need for Commission guidance on the question of when off-site emergency planning contentions should be filed.
There are several points at which information is available e
to intervenors such that an off-site emergency planning contention could conceivably be filed. For the purpose of this discussion, consider the following, listed in chronological order:'
- l. Intervenor familiarity with the surroundings, particularly with the size of roads that could or must be used for evacuation and with the locations of traffic bottlenecks.
- 2. An of f-site plan filed by an applicant.
- 3. A generic plan prepared by the state.
- 4. Local plans adopted by surrounding area governments.
- 5. FEMA review of all emergency plans.
At each one of<ghose stages, there is sufficient information to develop some sort of contention. Knowledge of local roads and bottlenecks, for example, would be sufficient I
basis for a contention that safe evacuation is impossible. But such a contention is also pointless until the emergency plans l -
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are developed because it cannot take into account any special actions that may be taken when an emergency occurs. Although it could meet both the basis and specificity criteria of 10 C.F.R. 2.714, it would serve no real purpose beyond initiating discovery. Unless the intervenor has devined what will be in the local plans, the specifics of the contention are likely to be completely irrelevant by the time of the hearing. In terms of rational hearing management, it would be unreasonable to require the contention to be filed oefore the local plans are available.
Similarly, an off-site plan filed by an applicant can be challenged on the ground that it does not account for local P
needs'or reflect the as-yet nonexistent local plans. The contention would meet Section 2.714 in that it would have a sufficient regulatory basis: in the absence of the local plans the license must be denied. Similarly, the charge that the local plans are not yet in force by itself constitutes adequate spec i f i c'i ty . Again, however, it would be pointless to litigate this contention since the local plans will ultimately govern.
In the Segbrook operating license proceding, the Commonwealth of Massachusetts filed four contentions that raised off-site emergency planning issues. All essentially claimed that the Applicants had failed to meet the regulatory requirements because local plans were not in place. All were correct in their general assertions, and all would ultimately
prevail if the local plans were never developed. Thus, strictly speaking, all complied with section 2.714. However, the Licensing Board viewed all of these contentions as premature since the local plans would eventually be developed but were not yet available. In so doing, the Board placed particular weight on the Staff's and FEMA's concerns that intervenors should not be allowed to begin discovery, burdening Staff and FEMA resources, until specific local plans were available. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443, 50-444 (Memorandum and Order)(filed September 13, 1982), S1. op. at 86-90.
Thus, intervenors are placed in an impossible. position between applicants, who presumably would have intervenors file emergency planning contentions as early as conceivably possible based on the most vaguely relevant information, and the Staff, which would have intervenors wait and even forego discovery until the local plans have become available, and perhaps even until thU local plans have been reviewd by FEMA. This raises again the question of whether the rules governing the filing of l
l contentions aqe for the purpose of facilitating a reasonable hearing process or are traps to capture all intervenors not i
intimately familiar with the more arcane peculiarities of NRC practice.
UCS urges the Commission to hold that off-site emergency planning contentions are timely if filed within a reasonable
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T Y time after local government emergency plans are made available to the public. This will assure that the relevant facts are sufficiently firm to justify initiating discovery and proceeding with litigation. This is true despite the fact that the FEMA review may result in substantial changes to the local plans. The question is one of degree, and UCS believes that the danger cf substantial later changes after the local plans become available is outweighed by the interest in allowing the litigation to proceed promptly and expeditiously.
Using the availability of local plans as the trigger for the filing of off-site emergency plans will also prevent the Boards and the parties from wasting time and resources-unnece'ssarily with arguments and discovery that are rendered irrelevant by later developments or with arguments about exactly when off-site planning contentions must be filed and exactly which documents contain the information that triggers the filing requirement. Procedural fairness and administrative ef ficien'dy will both be served by a clear ruling that of f-site j emergency planning contentions should be filed after the local l plans become qvailable.
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Conclusion For the reasons state above, UCS urges the Commission to answer Question No. 1 in the affirmative, and to hold, with respect to Question No. 2, that
- 1. Environmental contentions are timely if filed within a reasonable time after the DES becomes available.
- 2. With respect to safety issues, " institutional -
unavailability" of the SER constitutes " good cause"'
for filing late contentions.
- 3. Off-site emergency planning contentions are timely if filed within a reasonable time after the local plans become publicly available.
UCS requests the right to participate in any oral argument that the Commission may hold with respect to these issues.
Respectfully submitted,
[ M A $lkJLJ Ellyn R. Weiss
'; M t William S. Jordan, III HARMON & WEISS
- 1725 I Street, N.W.
Suite 506 Washington, D.C. 20006 (202) 833-9070 Counsel for UCS Dated February 14, 1983
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n 00(KETED UNITED STATES OF AME'RICA BEFORE THE NUCLEAR REGULATORY COMMISSION
'83 FEB 16 A10:34
)
In the Matter of ,. , ) . . ;ta m h)MLi dG & SEEVICL DUKE POWER COMPANY , et al. ) ERANCy)ocket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of Brief of the Union of Concerned Scientists as Amicus Curiae in Response to Commission Questions have been served upon the following by depositing the same in first class mail, postage prepaid, this 14th day of February, 1983.
Nunzio J. Palladino, Chairman . Chairman :
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, DC 20555 Board Panel
- * "" '"# *9" # #Y Commissioner Victor Gilinsky omm ssion U.S. Nuclear Rec'ulatory Commission ashngton, D.C. 20555 Washington, DC ~ 20555 -
t George E. Johnson, Esc. l Commissioner John F. Ahearne Office of the Executide Legal U.S. Nuclear Reaulatory Commission Director Washington, CC 205aa U.S. Nucelar Regulatory Comm.
Washington, DC 20555 Co:mnissioner Thomas M. . Roberts U.S. Nuclear Reculatory Commission William L. Porter, Esq.
Washington, DC 20555 Albert v. Carr, Jr. Esq.
Commissioner James K. Asselstine P e mp U.S. Nuclear Regulatory Ccmmission P.O. Box 33189 Washington, DC 20555 Charlotte, NC 28242 James L. Kelley, Chairman Richard P. Wilson, Esq.
Atomic Safety and Licensing Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission State of South Carolina Washington, DC 2055a P.O. Box 11549 Di. A. Dixon Callihan tihlon Carbide corporation Chairman Atomic Safety and Licensing a e Tennessee 37830 Appeal Board .
Dr. Richard R. Foster U.S. Nuclear Regulato'ry P.O. Box 4263 Commission Sunriver, Orec m 97701 Washington, DC 20555 A
Henry A. Presler Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, NC 28207 J. Michael McGarry, III, Esq.
Dabevoise & Liberman 1200 Seventeenth St., N.W.
Washington, DC 20036 JGsse L. Riley 854 Henley Place Charlotte, NC 28207 Scott Stucky Docketing and Service Station U.S. Nuclear Regulatory Commission Washington, DC 20555 Robert Guild P.O. Box 12097 Charleston, South Carolina 29412
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William S./7ordan, III February 14,'1983 i
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