ML20032A083
| ML20032A083 | |
| Person / Time | |
|---|---|
| Site: | Susquehanna  |
| Issue date: | 10/23/1981 |
| From: | Ketchen E NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8110280269 | |
| Download: ML20032A083 (16) | |
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UNITED STATES OF AMERICA
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- s NUCLEAR REGULATORY COMISSION
,%D BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BORRD In the Matter of PENNSYLVANIA P(MER AND LIGHT COMPANY
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Docket Nos. 50-387 AND
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50-388 ALLEGHENY ELECTRIC COOPERATIVE, INC.
(Susquehanna Steam Electric Station,
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Units 1 and 2)
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I;RC STAFF RESPONSE TO CITIZENS AGAINST NUCLEAR DANGERS APPEAL AND REQUEST FOR A STAY OF ORDER CONCERNING CONTENTIONS 2 AfiD 4 t
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Edward G. Ketchen October '3,1981 Counsel for NRC Staff DSd'/
ICI!ATED0IG liAL ei10280269 811023 D
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. TABLE OF CONTENTS PAGE I. INTR 000CTION..............................................
1 II. STATEMEIT OF ISSUES.......................................
3 III. ARGUMENT A.
CAND's Appeal Is Interlocutory and Cannot Be Raised At This Time..................................
3 B.
CAND's Request For a Stay of The Licensing Board's Memorandum and Order Granting Summary Disposition of CAND's Contention 2, 4(c) and 4(d) Should Be Denied...............................................
6 1.
CAND Has Not Made a Strong Showing That It Is Li kely To Prevail on The Merits.................
7 2.
CAND Will Not Be Irreparably Injured Without aStay..........................................
9 3.
Granting CAND's Request for a Stay Would Harm Other Parties...................................
10 4.
The Public Interest Does Not Favor a Stay.......
11 IV. CONCLUSION............................................
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-ii-TABLE OF CITATI0f4S PAGE CASES Boston Edison Company, et al. (Pilgrim fiuclear Generating Station,~Iliiftl, ALAB-269, 1 NRC 411, 413 (1975).............
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llouston Lighting & Power CompaJn (Allens Creek ?:uclear Generating Station, Unit flo.1), ALAB-629,13 f;RC, 75, 77, n.
2..........................................................
4 Northern States Power Company, )(Tyrone Energy Park, Unit 1),
ALAB-4 9 2, 8 N RC '> S 1, 2 5 2 ( 19 7 8...............................
4 Pacific Gas & Electric Company (Diablo Canyon fluclear Power Til an t), AIXP-SlT47ff hRC 406, 410-412 ( 1978)...................
7 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-2217 8 AEC 95, 98 (1974)....................
7 Public Service Company _ of Indiana, Inc. (ftarble Hill iluclear Generating Station, Units 1 and 2], ALAB-493, 8 NRC 253, 270(1978)....................................................
6 Public Service Co. of Indiana, Inc. (ftarble Hill Nuclear Genera ting Station), ALAB-437, 6 NRC 630, 635 (1977)..........
7 Public Service Company of flew Hampshire (Seabrook Station, Tinits 1 and 2), ALAB-338, 4 flRC 10, 14-15 (1976)..............
6 Public Service Company _of New ifampshire (Seabrook Sta; 'on, Un i ts 1 and 2), ALAB-471, 7 flRC 477, 492 (1978)...............
7 South Carolina Electric and Gas Company _, et al. (Virgil C.
Suiner Nuclear Station, Unit 1), ALAB-643, Slip Opinion (June 15, 1981), p.
6.......'..:...............................
10, 11 Toledo Cdison Company, et al. (Davis-Besse Nuclear Power Station, Units 1, 2 ant 3), ALAB-385, 5 fiRC 621, 628 (1977)...
9 REGULATIO:iS 10 C.F.R. 52.714a(b).....................................
3 10 C.F.R. 52.711a(c).....................................
3 10 C. F. R. 5 2. 7 3 0 ( f )......................................
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-111-10 C.F.R.
92.749........................................
2, 5 10 C.F.R. 52.762........................................
9, 11 10 C.F.R. 92.788........................................
6, 9, 10 10 C.F.R. 52.788(e).....................................
6 FEDERAL-REGISTER
-46 Fed._Rg. 30328, 30331...............................
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Staff 10/23/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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PENNSYLVAIIIA POWER Al1U LIGHT COMPANY
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AND
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Docket Nos. 50-387 ALLEGHENY ELECTRIC COOPERATIVE, INC.
)
50-388
)
(Susquehanna Steam Electric Station,
)
Units 1 and 2)
)
NRC STAFF RESPONSE TO CITIZENS AGAINST NUCLEAR DANGERS APPEAL AND RE0 VEST FOR A STAY OF ORDER CONCERNING C0!iTENTIONS 2 AND 4 I.
INTRODUCTION On September 29, 1981, the presiding Licensing Boara in the captioned proceeding issued a llemorandum and Order on Pending Motions (Order).
In that Order, the Licensing Board granted, inter alia, the liRC Staff's motions for summary disposition ruling that no genuine issue of material fact existed with respect to Citizens Against Huclear Dangers'
("CAHD") Contention 2 relating to the risks of low-level radiation.1/ The 1/
On March 6,1979, the Licensing Board admitted Contention 2 which alleges:
The residual risks of low-level radiation which will result from the release from the faci'.
of radionuclides, and particularly from the release of
- ium-137 and cobalt-60, into the Susquehanna River, and the hea.;h effects of chlorine discharged into the river, have
- not been, but must be, (Continued) i
Licensing Board also granted the NRC Staff's motion for sunmary disposi-tion as to CAND's Contention 4(c) and 4(d) on the grounds that there is no issue of material fact to be heard with respect to those contentions. /
In a document served October 13, 1981, CAND appealed and requested a stay of the Order (Appeal and Stay Request) insofar as it relates to summary dismissal of Contenticns 2, 4(c) and 4(d).
It also requested that these contentions be reinstated.
In requesting a stay of the sumraary dismissal of Contentions 2, 4(c) and 4(d), CAND, in essence, appears to request that those contentions be retained as issues in the proceeding so that the Staff and Applicants are required to present 1/
(Continued) adequately assessed and factored into the NEPA cost-benefit balance before the plant is allowed to go into operatica.
Applicants filed partial motions for sunmary disposition on Conten-tion 2 on August 13 and 25, 1981. Those motions addressed, respec-tively, the magnitude of radioactive releases (source term) and the magnitude of the doses resulting from the radioactive releases. By its Meaorandum and Order of September 23, 1981, the Licensing Board approved Applicants' motions, stating that "[t]here is no issue of a material fact to be heard with respect to the contentions." (slip op, at 3). The NRC Staff also submitted its own summary disposition motion on Contention 2 (filed September 3,1981) establishing that that portion of Contention 2 which relates to low-level radiation presents no issue of material fact.
This motion was granted on September 29, and is the subject of CAND's Appeal.
2/
On September 2,1981, the Staff filed NRC Staff Motion For Summary Disposition on Contention 4.
Contention 4 alleges, in essence, that there is no need for the electricity to be generated by the Susquehanna facility due to Applicants' high reserve margins and due to the potential for very low growth in electrical energy requirements.
CAND did not file a response pursuant to 10 C.F.R. 5 2.749 in opposition to the Staff's motion for summary dismissal of Contention 4, although SEA filed a one page opposing motion without supporting affidavits on September 17, 1981. Nor did CAND prepare and file direct testimony in support of Contention 4.
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evidence on-them "in order to compile [a] complete record on the material facts in dispute...."
(Appeal and Stay Request, p.1).
The NRC Staff, for the reasons set forth below, opposes CAND's appeal and request for a stay.
II.
STATEMENT OF ISSUES The issues raised by CAND's appeal and request for stay are twofold:
1.
Are the matters raised by CAND appealable at this point in the proceeding?
2.
Is a stay of the Licensing Board's action summarily dismissing CAND's Contentions 2, 4(c), and 4(d) warranted?
III. ARGUMENT A.
CAND's Appeal Is Interlocutory and Cannot Be Raised At This Time As applicable to CAN0's appeal of the Licensing Board's ruling summarily dismissing CAND's contentions, the Commission's Rules of Practice explicitly provide tnat "[n]o interlocutory appeal may be taken to the Commission from a ruling of the presiding officer."
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There are two explicit exceptions to this rule in the regulations but i
neither aids CAND.
First, a petitioner may appeal from a Licensing Board Order " wholly denying a petition for leave to intervene."
10 CFR 62.714a(b). The intervention rights of CAND, however, have not been " wholly denied", since CAND remains as a party and other CAND contentions remain to be litigated.
The second exception permits parties "other than the petitioner" to appeal an order admitting the petitioner to the proceeding on the grounds that the petition should have been wholly denied.
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It has long been held in NRC proceedings that an action taken by a Licensing Board with respect to a party and its contentions which dismisses contentions from the proceeding but leaves that party with at least one contention to be heard on the merits is interlocutory in na!ure and not subject to immediate appeal as a matter of right. See:
e.g., Northern States Power Company (Tyrone Energy Park, Unit 1),
ALAB-492, 8 HRC 251, 252 (1978). The reason for this rule is that proceedings can be conducted more efficiently if the right to obtain review of orders that are interlocutory in character is deferred to an appeal at the end of the case.
Boston Edison Company, et al. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-269, 1 NRC 411, 413 (1975) and cases cited at n.3 therein.
The Licensing Board's rulings summarily dismissing CAND's conten-tions 2, 4(c), and 4(d) do no more than exclude fraa consideration in this proceeding several issues CAND raised.
CAND is not thereby excluded fraa further participation in the proceedings since its other issues are being heard.
In these circumstances, since CAND is still i
participating in the proceedings on other contentions, there is no ruling excluding CAND from the proceeding on which it may effect an immediate appeal as of right.
See Houston Lighting & Power Company (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-629, 13 NRC 75, 77, n.2.
The Appeal Board in Allens Creek permitted imme-diate appeal only where the effect of a ruling summarily dismissing a particular contention resulted also in the dismissal of the intervenor. CAND's rights to be heard on appeal are not in any way diminished but, in accordance with the Commission's Rules of Practice, e
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must await the final decision of the Licensing Board on the merits of the Case.
CAND argues that the Licensing Board's summary dismissal of Conten-tions 2, 4(c) and 4(d) should be overturned at this time because written testimony on those contentions has been filed by the Staff and Appli-O and CAND is prepared to cross-examine Staff and ApriMants' cants witnesses on those contentions.
(Appeal and Stay Request at p. 1.)
CAND asserts that these contentions should be litigated so as "to compile [a] complete record on the material facts in dispute." Id. The parties' readiness to litigate these issues at hearing, however, is not material to whether the Licensing Board's rulings are interlocutory in na tu re. CAND's argument that litigation of these contentions is necessary to compile a record on the material facts in dispute is wholly unsupported.
In short, CAND has provided no basis for its request that its interlocutory appeal be entertained.5_/
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Written testimony on all contentions remaining to be litigated was filed on September 15, 1981, pursuant to Licensing Board Order of August 14, 1981.
Since the Licensing Board's rulings summarily dismissing CAND Contentions 2, 4(c) and 4(d) were made subsequent to the date for the filing of written testimony, the testimony CAND Contentions 2, 4(c)pplicants included testimony directed to filed by the Staff and A and4(d). CAND filed no written testimony on those contentions.
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CAND asserts that summary disposition is normally cut off 45 days prior to the start of hearings.
( Appeal and Stay Request at p. 2.)
It should be noted, however, that the requirement that summary disposi-tion motions be filed 45 days before the commencement of hearing was removed from 10 CFR 62.749 in a final rule change effective upon publi-cation in the FEDERAL REGISTER on June 8, 1981.
(46 FED REG. 30328 at 30331). Under current rules, summary disposition motions may be filed "within such time as may be fixed by the presiding officer."
In any event, CAND has not indicated any manner in which it was harmed by the timing of the motions for summary disposition. Thus, CAND's erroneous assertion that summary disposition ends 45 days prior to hearing provides no basis for entertaining its interlocutory appeal now, a
The Appeal Board in this very procecding has explicitly recognized the interlocutory nature of, and refused to entertain, such a piecemeal appeal of Licensing Board rulings during the course of the proceedings.
On June 2,1981, CAND sought an appeal from the Licensing Board's grant of summary disposition of another contention. The Appeal Board dismissed the appeal as interlocutory in nature, and one which must await the Licensing Board's " initial decision" at the end of the case.
(Memorandum and Order, July 8,1981, (slip op. at 2)). Thus, the Appeal Board never reached the merits of the Licensing Board's decision.
Similarly, CAND's instant appeal of the summary dismissal of parts of Contentions 2, 4(c) and 4(d) is interlocutory in nature and not proper at this time.
B.
CAND's Request For A Stay of The Licensing Board's Memorandum and Order Granting Summary Disposition of CAND's Contentions 2, 4(c) and 4(d) Should Be Denied.
The requirements for the granting of a stay by the Appeal Board are set forth in 10 C.F.R. 9 2.788.
Whether a stay is to be granted in a specific instance depends on:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits.
(2) Whether the party will be irreparably injured unless a stay is granted.
i (3) Whether the granting of a stay would hara the other parties; and (4) Where the public interest lies.
10 C.F.R. s 2.788(e).
The burden of persuasion on these factors is on the movant.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 NRC 253, 270 (1978). No single factor is dispositive; the granting or denying of a stay request turns on a balancing of all the factors.
Public Service Company of New Hampshire 8
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- and, in fact, has wholly failed to address these factors directly or even to comply with the procedural requirements for requesting a stay.
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1.
CAND has not made a strong showing that it is likely to prevail on the merits CAND's request for stay is silent with regard to the first factor on likelihood of success on the merits.6.] The bisic issue presented with regard to this factor is whether the Lh_. 3 ng Board erred in the manner of its summary dismissal of Contentions 2, 4(c) and 4(d). Although not explicitly noted by CAND in its Appeal and Request for Stay, the Licensing Board disposed of Contentions 2, 4(c) and 4(d) without setting forth in detail the bases for its summary dismissal of these contentions.
Were the Licensing Board to totally fail to provide the reasons for its summary disposition rulings either in its initial decision, or at an earlier date, it is indeed likely that those rulings would ultimately be overturned on appeal.U 6,f See generally Public Service Co. of Indiana (Marble Hill Nuclear Generating l
Station), ALAB-437, 6 NRC 630, 635 (1977) (a movant must make an " overwhelming" showing that it will ~ucceed on the merits of its appeal in order to obtain a I
stay).
Furthermore, i has been held that to obtain a stay there must be a greater showing %n that there is merely a possibility of legal error by a Licensing Boare.
Philadelphia Electric Co. (Pese Bottom Atomic Power Station, Units 2 ano 3), ALAB-221, 8 AEC 95, 98 (1974).
_7f The Licensing Board must clearly state the basis for its decisions. The failure to provide the reasoned basis for decisions is ground for reversal or remand for an explication of the reasons for the decision.
Pacific Gas
& Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-504,-
8 NRC 406, 410-412 (1978); Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 492 (1978),
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See
" Memorandum and Order on Pending Hotions," August 31, 1981, slip op.
at 1.
Thus, the Licensing Board's action in ruling on the motions for summary disposition without providing the bases for those rulings at the time of the rulings was merely a matter of scheduling.
The materials presented in support of and opposition to the motions for summary disposition provide an adequate decisional basis on which the Licensing Board could appropriately rule.
In this regard, with respect to Contention 2 concerning the residual risks of low-level radia-tion from release of radionuclides into the Susquehanna River, the facts presented by the Staff and Applicants demonstrate conclusively that the Applicant and the Staff have adequately addressed releases (source term), the potential doses resulting from the radioactive releases, and the possible risks to the public health from those doses.
Similarly, the evidence presented by the Applicant and Staff in support of their respective uotions concerning CAND's need for power contentions (Conten-tions 4(c) and 4(d)) fully support and justify the Licensing Board's action in dismissing those contentions.
CAND, in fact, does not challenge the substance of the materials presented in support of the summary disposition motions.
It is clear, then, that there is an adequate decisional basis that would ' support the Licensing Board's summary dismissal of CAND Conten-tions 2, 4(c) and 4(d). The Licensing Board has indicated that it will, 0
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Because of this and of the current interlocutory nature of those rulings, it cannot be said at this time that the Licensing Board erred or that CAND is ultimately likely to prevail on the merits of its appeal. This factor, therefore, does not weigh in favor of staying the Licensing Board's summary disposition rulings at this time.
2.
CAND will not be irreparably injured without a stay
-The second factor to consider in determining wnether to grant a request for a stay is whether irreparable injury will result if a stay is not granted.
It is clear that a party must show actual and serious injury to its interests in order to prevail with respect to a stay request. Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 628 (1977).
In this regard, the only point that is made by CAND is that it might be incon-venienced by the fact that it has read, and prepared cross-examination for, the testimony filed by the Applicant and Staff.
Such inconvenience hardly constitutes irreparable injury.
Further, the availability of an appeal with respect to these con-tentions at the appropriate time pursuant to 10 C.F.R. 92.762, provides l
CAND the opportunity to persuade the Appeal Board that the Licensing l
Board's action was in error. Thus, because it may assert error on appeal at the appropriate time in accordance with Commission Rules of t
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Practice, CAND cannot be he ard to complain that denial of its stay request will cause it to suffer irreparable injury.E/
3.
Granting CAND's request for stay would harm other parties The third factor under Section 2.788 in deternining whether the granting of a stay is appropriate is what harm will be suffered by other parties. - Granting CAND's stay request would return the proceeding to the status quo prior to the Licensing Board's suanary dismissal of the contentions in question. This would, in effect, reinstate CAND's Conten-tions 2, 4(c) and 4(d), and mean that the proceeding would be delayed pending the outcome of the interlocutory appeal of the Licensing Board's ruling. At best, granting the stay request would mean that the Staff and the Applicants would be put in the position of either requesting delay of the proceedings or presenting direct evidence on issues that the Licensing Board has determined involve no dispute as to material facts. The extra expense of delay in the proceedings and, possibly, unwarranted delay and consequent expense in ultimate issuance of licenses to operate the facility could be a possible consequence.
Similarly, the expense to the Staff and to the Applicants in having to present evidence at i. earings on issues that the fact-finding body has p/
Deferral of CAND's appeal on the Licensing Board's summary dismissal rulings until after issuance of the initial decision will result in no harm to CAND. Were the Appeal Board ultimately to reverse the suonary disposition rulings, the necessary consequence would be that the evidentiary record (if closed by then) would have to be reopened to allow further participation by CAND in the liti-gation of those issues. This would provide CAND with the full remedy to which it would thus be entitled.
See South Carolina Electric and Gas Company, et al. (Virgil C. Sur.ner Nuclear Station, Unit 1), ALAB-643, Slip opinion (June 15, 1981), p. 6.
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determined in the first instance involve no material factual dispute is sufficient potential harm for this factor to weigh against the granting of the requested stay.
In similar circuastances it has been recognized that requiring parties to devote time and resources at the hearing, if a petition for review is not granted, is an irretrievable expenditure.
See Summer, ALAB-643 supra, p. 7 (slip opinion).
4.
The public interest does not favor a stay The fourth factor to be considered in deternining whether to grant a request for a stay is where the public interest lies. With respect to the fourth factor, CAND's argument is presented in one sentence:
"The ASLB's last minute, unorthodox and arbitrary decision of September 30th
[ September 29] is untimely, unfair, and certainly not in the public interest."
(CAND Appeal and Stay Request, p.1).
There is nothing more than this generalized statement that would indicate the nature of the public interest that CAND believes favors granting its stay request.
Thus, there is absolutely no basis in CAND's request for determining that the public interest requires that the proceedings return to the status quo pending the outcSme of the proceedings on appeal, either at this interlocutory stage e an appeal after the Licensing Board's decision in accordance with 10 C.F.R. 52.762.
CAND also appears to argue that it is in the public interest to compile a complete record on the rejected issues. Such an argument was recently specifically rejected in Summer, ALAB-643. Slip op., p. 7.
On the other hand, delaying these licensing proceedings and thereby potentially causing the Susquehanna facility to unnece sarily stand idle
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are no material issues of fact in despute with respect to Contentions 2, 4(c) and 4(d) is not compatible with the public interest. Accordingly, the public interest does not weigh in favor of the imposition of a stay in this instance.
In suaaary, balancing all four fectors requires denial of CAND's stay request.
IV. CONCLUSI0!1 For the reasons stated above, CAi4D's appeal and request for stay should be denied.
Respectfully submitted, 1
[L.s k. k..
Edward G. Ketchen Counsel for NRC Staff Oated at Bethesda,11aryland this 23rd day of October, 1981 1
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