ML20049J665
| ML20049J665 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 03/11/1982 |
| From: | Sanford J DEBEVOISE & LIBERMAN, SOUTH CAROLINA ELECTRIC & GAS CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML19291F826 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8203190107 | |
| Download: ML20049J665 (23) | |
Text
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, e March 11, 1982 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
SOUTH CAROLINA ELECTRIC & ) Docket No. 50-395 OL GAS COMPANY, et al. )
)
(Virgil C. Summer Nuclear )
Station, Unit 1) )
APPLICANTS' RESPONSE IN OPPOSITION TO INTERVENOR'S MOTION TO REOPEN FOR CONSIDERATION OF NEW CONTENTION On February 24, 1982, Intervenor Bursey served a
" motion for Admission of New Contention" based on the Staff's January 28, 1982 Board Notification and enclosures.
The record in this proceeding is closed as to all issues.
(Tr. 3871, 3872, 4677, 6014, and 6137). Mr. Bursey implicitly requests reopening the record because he seeks further hearings (motion at 3).
To grant a motion to reopen, the moving papers must be strong enough, in light of any opposing filings, to avoid summary disposition. Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). If the undisputed facts establish that an allegedly significant safety issue does not exist, has been resolved, or for some other reason will have no effect on the outcome of the licensing proceeding the motion to reopen should not be granted. Id.
8203190107 820311 PDR ADOCK 05000395 0 PDR
I F With its Board Notification dated January 28, 1982, the NRC Staff transmitted to the Licensing Board and Parties a " trip report" or memorandum regarding an unofficial review by Mr. M.S. Medeiros, Jr., a former NRC employee, of operating procedures at the Virgil C. Summer Nuclear Station. The memorandum was critical of the procedures discussed from an editorial standpoint. While it also alleged technical errors and deficiencies, the author conducted his review using outdated procedures and candidly acknowledged both his lack of detailed knowledge of the plant design and that he had not resorted to diagrams and other technical data for thorough technical review (Report from Medeiros to Norberg, Dec. 22, 1981, at 2) (See Storz Af fidavit, March 10, 1982, at 8). The Staff transmittal reported that the Medeiros trip report did not change the conclusions the Staff had reached in the Safety Evaulation Report regarding the adequacy of the Summer emergency operating procedures (EOPs)
(Memo from Tedesco to ASLB, January 28, 1982, at 1) (See ,
also Storz Affidavit, Attachment 2). The Staff based its conclusion on two factors: "(1) the EOP's that were reviewed before writing the Safety Evaluation Report are based on generic technical guidelines that had received Staff review and interim approval and (2) the procedures are expected to be upgraded early in the life of the plant based on additional work on the technical guidelines and on human f actors guidance to be provided by the Staff and by industry groups."
1 f (Memo from Tedesco to ASLB, January 28, 1982, at 1).
As discussed in the analysis that follows, the Intervenor has failed to meet the " heavy burden" which is upon him under past NRC decisions to show why the record, now closed, should be reopened.
The Legal Standard for Reocening Parties have an obligation to report "new information which is relevant and material to the matter being adjudicated" in an uncompleted licensing proceeding. Georgia Power Co.
(Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 411 (1975). 1/ Once the record has been closed, the proponent of a motion to reopen has a " heavy burden." Kansas Gas & Electric Co., et al. (Wolf Creek Generating Station, Unit No. 1), A LA B- 4 6 2, 7 NRC 320, 328 (1978). 2/
Reopening the record is based on appraisal of three factors:
(1) Is the motion timely? (2) Does it address significant safety (or environmental) issues? (3) Might a different result have been reached or would the outcome have been affected had the newly proffered material been considered initially? Pacific Gas & Electric Co. (Diablo Canyon 1/ See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625-26 (1973).
2/ See Public Service Ele _ctric & Gas Co., et al. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 63 (1981); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-359, 4 NRC 619, 620 (1976).
1 6 Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879, (1980); see Public Service Co. of Oklahoma (Black Fox Station Units 1 and 2), ALAB-573, 10 NRC 775, 804 (1979).
First, as to timeliness, generally the movant must show that the issues could not have been raised earlier, such as prior to close of the hearing. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138, 6 AEC 520, 523 (1973). 3/ Second, prior to a final agency decision in a licensing proceeding, a motion to reopen, even though timely, will not be granted unless the new circumstance, trend, or fact discovered gives rise to a "significant safety-related issue." Wolf Creek, supra, 7 NRC at 338; Catawba, supra, 4 NRC at 620. 4/ Finally, in a proceeding in which the record has been closed but no decision rendered, the movant must show "that the outcome of the proceeding might be affected" by the newly discovered evidence. Black Fox, supra, 10 NRC at 804. 5/
3/ See Northern States Power Co. (Tyrone Energy ? ark, Unit 1),
ALAB-464, 7 NRC 372, 374 n. 4 (1978); Consumers Power Co.
(Midland Plant, Units 1 and 2), LBP-75-6, 1 N3C 227, 229 (1975).
4/ Voctle, supra, 2 NRC at 409; Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-167, 6 AEC 1151, 1152 (1973).
5/ Another way of expressing this factor is that the
" result might be altered in some material respect."
Metropolitan Edison Co., et al. (Three Mile Island Nuclear Station, Unit No. 2), ALAB-486, 8 NRC 9, 21 (1978); See Public Service Co. of New Hamoshire, et al.
(Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 64 n.35 (1977); Vermont Yankee, suora, 6 AEC at 523.
(footnote cont'd on next page)
. e The following matters have been held not sufficient grounds to grant a motion to reopen: generic safety concerns, Vogtle, supra, 2 NRC at 411; change in some detail involving plant construction or operation, Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-74-39, 8 AEC 631, 631 (1974); motions based on "need for power" arguments, Cleveland Electric Illuminating Co., et al.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 750 (1977); and, generalized assertions that "more evidence is needed," Salem, supra, 14 NLC at 63.
Avoidance of Summary Disposition To justify the granting of a motion to reopen, the moving papers must be strong enough, in light of any opposing filings, to avoid summary disposition. Vermont Yankee, supra, 6 AEC at 523. Thus, even though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidavits submitted in response to the motion demonstrate there Footnote cont'd from previous page)
In a proceeding in which a decision has been rendered, the language (but not the standard) is somewhat different, the movant must show that a "different result might have been reached" had the matter been considered earlier.
Tyrone, supra, 7 NRC at 374 n.4; Wolf Creek, supra, 7 NRC at 338; North Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), A LA B- 2 2 7, 8 AEC 416, 418, (1974).
Cf. Unarco Industries, Inc. v. Evans Products Co., 403 F.2d 638, 639 (7th Cir. 1968) (standards for granting motion for new trial under FED. R. CIV. PRO. 60);
Knight v. Hersh, 313 F.74 879, 880 (D.C. Cir. 1963).
(motion for new trial).
t 4 is no genuine unresolved issue of fact, i.e., if the undisputed facts establish that the allegedly significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding. Id.
In making this determination, the Board may consider extra-record material. 6/
The parties have satisfied their obligation to report 4
new information which is relevant to the proceeding. See Vogtle, supra, 2 NRC at 411. In this instance, as in numerous others, a board notification was promptly issued following the Medeiros trip report. While the Board might reasonably want assurance that the Staff is "on top of" the matter, the Board need not, in an operating license proceeding, take up every detail that crops up during ongoing staff review, but may leave such matters to resolution by the Staff.
10 C.F.R. S 2.760a. (See Grossman Tr. 6136).
The development and issuance of operating procedures is an ongoing process which began several years ago. It is a continually evolving process as drafts are prepared, reviewed, marked-up, tested, revised, conformed to plant changes and new requirements, and reissued. (See Storz Affidavit, at 6/ Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 28), ALAB-463, 7 NRC 341, 352 (1978); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 347 (1973); see Vermont Yankee, supra, 6 AEC at 523-24.
~ -
e n ;-
/
~ ~
'*l 1-7). As a result, both the Applicants and the Staff have -
been "on top of" the further work which needs to be done - - 'I, with respect to the Summer operating procedures and'SCE&G ,
has been revising and reissuing procedures for many month ,
- - f, (See Id.). The Applicants are committed to the Etaff ,
to upgrade and correct operating procedures and to close out all open items in the Staff's review regarding operating _
procedures (See Id. at 7). This ongoing effort hsd been in ',
processlongbeforetheMedeirosvisitandbissubsequent report and continues at present (See Id. at 1-7, 11.) . .
/>
^ '
It is not difficult to see why an intervenor would , ,
~
seize upon a document like the trip report which contains in a single paragraph, the inflamatory words: " crude", " inept", _,
" vagueness", " ambiguity", "unintelligibility", and " error" .
and concludes: "As a result, these procedures appear to. ,
invite operator error" (Medeiros Report, supra, at 2). But the hyperbole is not warranted. Intervenor's motion to reopen fails to meet the standards of Vermont Yankee,- -
suora, 6 AEC at 523, to avoid summary disposition. Mr. Bursey's
~
motion, in light of opposing pleadings, does not establish a' significant safety issue that would affect the outcome of ,
this proceeding if considered by the Board. The Applicants are now, and have been, engaged in a program of revision and.
reissuance of procedures and are committed to the Staff ,-
to close open items in this regard under the Staff's
/
,. . e. - ', ,;
S .
.2 e ' ,
f ,
. ,. cont'inuing review process.
The Applicants are confident
^
, that this matt'er can be disposed of on the pleadings
'without reconvening the evidentiary hearing or receiving
^
l / additional evidence. Applicaiits are satisfied that the
- ,' matter is not a cause for alarm and indeed is blown out of
[, all proportion in the Medeiros'mamorandum. The conclusory
. - " words of that memorandum are' alarming; yet, the specific
,.- matters on which they are based.do not bear them out. Nor e r ;
have the bulk of the specifi'c contentions been substantiated.
'^ 'w (See generally r
Storz AffidavitI',
i Attachment 1).
/ I' , ,,
'e / Mr. Medeiros tras not des'ign'ated or authorized by the
.' /
NRCJto~act is a qualified reviewer. The purpose of his
- ~
\ /. . /
i visit'Was explained; to .be ,orie6thtion and f amiliarization,
. i
,' ,not review. (See Sto[z Affidavit, at 8). Notwithstanding
,his comments, it is important that Mr. Medeiros indicated
, 1 -
that he'was/
not fa5111ar with commercial nuclear power
/
i ';
plants' and iltho~ term'inolo'gy commonly used by plant operators.
i..,
i'/ .
(See Id. )'.' - Although' :it was repeatedly. explained to him that the op,eratihg proe'edures were in the process of being revised, Mr. Mediros insisted on working with the outdated versions beIhad bro'ught;with him to the visit, including one that I:ad been specifically superseded two
^:-
months earlier. ( g Id. at 9)'.. Mr. Medeiros' comments andchaservationswerblargbly'editorialinnature,although he raised some specific. technical questions. Some of his i ., -
4' 6 '
/
u- , ! i.
/
/. ,
\ k *
< ,1 editorial comments were well-taken, but m'st o of his technical observations were not., (See generally Storz Affidavit,
, Attachment 1). It must be stressed that Mr. Medeiros did
, not cite a single instance where an operating procedure directs the operator to perform an unsafe act. (See Storz Affidavit, at 10). s l
Standards Governing Late Contentions The Commission's rules, 10 C.F.R. S 2.714(a)(3) provide that a petition for leave to intervene' may be amended only with the approval of the Presiding Officer based on a balancing of the factors specifi~ed in paragraph 2.714(a)(1)
(i) - (v). This provision of the regulations was explained by the Commission in the Statement of Considerations accompany-ing the final rule amending S 2.714 (43 Fed. Reg. 17798, 17799 (April 26, 1978)) as follows:
. . . S 2.714 is revised to specifically provide that late filed contentions . . .
will be considered for admission under the clarified criteria set forth in subpara-graph (a)(1) . . . revised S 2.714 makes clear that late filed contentions must meet the same requirements as timely filed con-tentions. _That is, a proposed contention must
! be' set forth with particularity and with the appropriate factual basis." (43 Fed. Reg. 17799).
. Accordingly, while it might reasonably be assumed that
- a ruling declining to reopen the proceeding upon appropriate consideration of the factors governing reopening as discussed above would obviate or subsume any further analysis under S 2.714(a), we nonetheless proceed to the S 2.714(a)(1)
analysis which seems to be required by a literal reading of the Commission's rules. The Intervenor seeks in his motion to add a new contention based on the Medeiros memorandum which is stated at pages 1-2 of Mr. Bursey's motion. The standards for admitting a late contention are set forth at 10 C.F.R. S 2.714(a)(1). 7/ Five factors are balanced in deciding whether to grant or deny a late-filed contention:
(1) good cause, if any, for failure to file on time; (2) availability of other means whereby the petitioner's interests will be protected; (3) the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record; (4) the extent to which the petitioner's interest will be represented by existing parties; and, (5) the extent to which the petitioner's participation will broaden the issues or delay the proceeding.
10 C.F.R. S 2.714(a)(1)(i)-(v). The intervence's motion refers to 10 C.F.R. S 2.714(a)(1) and touches on four of the five factors. (1) As to the good cause factor, given the date of receipt of the Medeiros memorandum, Intervenor claims to have acted in timely fashion; (2) as to protection of his interests by other means or by existing parties (factors (ii) and (iv)), he claims that he cannot rely on the Staff to see the matter through or protect his interest, 7/ Project Manacement Corp., et al. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 388-94 (1976).
t 8 because they only by happenstance considered the matters covered by Medeiros (while,'as to the Applicants, the motion makes reference to an irrelevant newspaper report); (3) as to broadening the issues, and delay, he argues that the new contention would be within the ambit of the Board's earlier sua sconte questions on management attitudes and that if having more hearings should cause delay, he is not accountable because the Staff should have found the alleged deficiencies in procedures (which he assumes to be true) earlier. That recital arguably touches upon four of the five factors (i, ii, iv, and v) governing both late intervention and late-filed contentions. (Bursey Motion, at 2-3) (See 10 C.F.R. S 2.714(a) (1)).
The showing as to the four factors arguably addressed by the intervenor is remarkably weak, but he misses the thrust of the third factor entirely. The Commission's rules in 10 C.F.R. S 2.714(a)(1)(iii) state the third factor as follows:
"The extent to which the petitioner's participation may reasonably be expected
- to assist in developing a sound record."
Mr. Bursey uses some of the words of that factor at page 3 of his motion:
"The Board cannot make a sound decision on the Applicants' management attitudes and activities without thoroughly exploring this matter and hearing testimony from Mr. Medeiros and others. Otherwise, the record in this case will be incomplete."
u t i What is notably lacking in this argument is (1) any development as to why the Board need concern itself with this matter in reaching a decision (i.e. is a hearing record needed at all on this point) and (2), putting that question aside, why there should be any basis at all for be.l.ieving that the intervenor can assist in developing a record on the matter. He refers to testimony by Mr. Medeiros, but does not indicate whether he has contacted him and made any arrangements regarding testimony. Nor does the Intervenor favor us with any indication as to who the "others" are those testimony he says is essential and what their contribution would be. Based on the motion, Mr. Bursey's participation to date, and the entire record, there is no reason to suppose he can contribute meaningfully and substantially to the resolution of the matter.
As to the four factors which Mr. Bursey does touch upon, i.e., 10 C.F.R. 52.714(a)(1)(i)(ii)(iv) and (v), his showing is not persuasive. First, as to good cause, Mr.
Bursey argues that the trip report only came into his hands on February 6, 1982; that he had no previous access to the operating procedures at the plant and could not have known for example that "known uncorrected" errors existed; that there were hand-written changes in procedures; or that SCE&G management was not insuring that the procedures were followed.
He concludes this point by simply asserting that in the circumstances he has good cause for filing when he did.
(Bursey Motion, at 2).
t Attached hereto is a copy of a January 28, 1981 letter from Mr. Nichols to the regulatory Staff, with a copy to Mr. Bursey, which transmitted copies of specified emergency operating procedures. (See Attachment 3) (See also Attachments 4, 5). Such procedures are also discussed in the affidavits of Mr. Bradham (at pps. 1-2) and Mr. Steitler (at p. 10) provided in support of our May 7, 1981 motion for summary disposition on ATWS. This merely illustrates that Mr.
Bursey, had he been interested in the subject of operating procedures, could have pursued the matter by seeking leave to file a contention regarding procedures at an earlier time. At any time when Mr. Bursey had a contention on a particular matter, he could have sought discovery. Finally, Mr. Bursey urges (in the context of the factor regarding broadening of the issues) that the procedures matter is but one aspect of the Board's questions regarding SCE&G's management attitudes. If that be correct, it was certainly open to Mr. Bursey to inquire on all matters within the scope of the Board's question. He could have sought to raise the matter of the bearing if any, of procedures development on management capabilities and attitudes before the record was closed on that issue. He did not do so. In short, while it may be true that the Medeiros trip report did not come to Mr. Bursey's attention until February, 1982, it is certainly not true that Mr. Bursey had no opportunity to inquire into matters involving operating procedures
at an earlier time. In these circumstances, good cause should be measured not by what Mr. Bursey did but what a diligent person would have done.
Turning to the next factor, the availability of other means whereby the petitioners' interests would be protected, we will combine our discussion of that factor with the fourth factor, the extent to which the petitioners' interest will be represented by existing parties. Mr. Bursey states at page 2 of his motion that the Staff analysis is so faulty that it cannot be relied upon, that problems with procedures would not hase been known to the Staff but for the happenstance that Mr. Medeiros visited the Summer plant, and that SCE&G cannot be relied upon to protect his interesta based on a patently irrelevant extract from a newspaper. We do not claim that it is the function of SCE&G to protect Mr. Bursey's litigative interests. However, as is plain from the affidavit of Mr. Storz, SCE&G has been aware of the need to upgrade and close out open items with regard to procedures for some years and has been diligently working on the matter with full appreciation of its significance.
We believe that the Staff has demonstrated diligence in this regard and that the Medeiros trip report is essentially irrelevant in light of that diligence. This matter is discussed briefly in Mr. Storz' affidavit and we expect that it will be more fully developed in the Staff's response.
?
Suffice it to say here that the resident inspector and other NRC representatives were aware of and had called to the Applicants' attention open items in procedures before Mr.
Medeiros ever came on the scene.- Moreover, Mr. Storz shows and we expect the Staff will show that Mr. Medeiros' specific findings were not in the main substantiated, while other matters not noted by Mr. Medeiros still require finalization and upgrading. For these reasons, in the present circumstances, and especially given Mr. Bursey's inability to contribute to this matter, there is no reason why the Staff cannot protect the public interest and with it any valid interests of Mr.
Bursey's, outside the hearing process.
Typically, there is no other party in such a proceeding except intervenor who can protect that intervenor's litigative interest in opposing the nuclear plant. Where an intervenor himself has no ability to contribute to the resolution of the matter, the fourth factor should not be weighed very heavily and the second and third factors, i.e. other means by which his interest will be protected and his ability to contribute, should be weighed quite heavily. As we have said elsewhere in this response, we can well understand that a Licensing Board would want some assurance in a case such as this one that the Applicant and the Staff are svare of the need for corrective action, and that it is being implemented by Applicants with appropriate oversight by the regulatory
staff. If that assurance is forthcoming, there is nothing to be gained by further hearings. If the matter will be resolved so as to protect the public health and safety without the intervenor's participation and without the Board's intervention, then the Board should let the Staff handle the matter. This is consistent with the role of the Board in an operating license proceeding under 10 C.F.R.
S2.760a vis-a-vis that of the Staff. The Board need not make any findings with regard to the status of operating procedures; it can leave appropriate resolttion to the Staff.
The final factor is the extent to which the petitioners' participation will broaden the issues or delay the proceeding.
The Intervenor claims at page 3 of his motion that the contention is within the ambit of the Board's question on management attitudes, though he concedes that this contention raises a new aspect of that issue. Mr. Bursey contends that the Board cannot make a sound decision when it is questioning management attitudes and abilities without thoroughly exploring the matters raised by Mr. Medeiros and hearing his testimony (and others who are not specified). At this point, we will respond to that portion of the argument and then return to Mr. Bursey's statements about delay.
l
Perhaps if there were substantial evidence in Mr.
Medeiros' memorandum or otherwise that management was not aware of and directing action on the need to upgrade procedures, finalize them, and close out open items (such as disagreements in nomenclature between the control board and procedures),
there might be some basis for Mr. Bursey's argument to the effect that inferences about management are warranted.
However, Mr. Medeiros' trip report does not at all demonstrate lack of management attention to the matter. When taken in conjunction with Mr. Storz' affidavit; the conclusion of the Staff in its January 28, 1982 Board notification based on their further review and inspection; and, such further explanation as may be provided by the Staff in its response, we believe that it will be clear beyond peradventure that both the SCE&G station management and the NRC regulatory staff are "on top of" the procedures matter. In those circumstances, it will be equally plain that the inference necessary to draw the Medeiros trip report within the scope of the Board's question on management abilities and attitudes is lacking and, for t'at reason, the broadening of the issues factor cannot be weighed in Mr. Bursey's favor.
In addition, it must be noted that Mr. Bursey concedes he is raising a new aspect of the Board's question regarding management attitudes and ability. (Bursey Motion, at 3).
That being the case, and since it appears that he desires
O 3 the Board to embark upon a full scale inquiry into the procedures matter, it is obvious that the relief that he seeks would in fact broaden the issues. If the question is raised whether there is something material to be gained on balance from broadening the issues, we respectfully refer the Board to our discussion of reopening and whether, on the pleadings, Mr. Bursey's contention is such as would survive summary disposition analysis. We think it is clear that it does not.
Turning now to the delay factor, We would point out that, like a late petitioner, an intervenor seeking to raise a new contention at this late stage in the proceeding bears a heavy burden and the delay factor is an extremely important one. South Carolina Electric & Gas Co., et al.
(Virgil C. Summer Nuclear Station Unit 1), ALAB-642, 13 NRC 881, 888-89 (1981), appeal pending sub nom., Fairfield United Action v. NRC (No. 81-2042 D.C. Cir.); Clinch River, supra, 4 NRC at 389-94. Cf. Wolf Creek, supra, 7 NRC at 328 (heavy burden on reopening).
Mr. Bursey attempts to avoid the issue by stating that if his request for further hearings would cause any delay, he should not be held responsible. (Bursey Motion, at 3). He argues that he acted promptly, that he could have a filed the contention earlier "if the Staff had done an adequate job cf reviewing procedures" earlier, and that it follows that any resulting delay is not his responsibility.
O 8 Mr. Bursey had numerous opportunities to raise the matter of procedures, to formulate a contention, and to pursue discovery with regard to the findings of the Staff on the progress of procedure development and any errors or deficiencies noted. If every time a Staff document is issued, it provides the grounds for an argument that a new area or a new aspect of an old area must be heard and hearings reopened, then there would literally be no end to these proceedings. No end, that is, unless the Staff were to stop reviewing matters affecting applications pending before Licensing Boards or stop informing boards (and parties to proceedings) of those matters which it is now obliged to report under prior Appeal Board decisions.
Obviously, the Staff must continue to review applications in litigation and has the duty to keep the Board appropriately informed. At some point, however, litigation must come to an end. 8/ The Staff evidently exercises some judgment over 8/ Perry, supra, 6 NRC at 750-51; Houston Lightino & Power Co., et al. (South Texas Project Unit Nos. 1 and 2), ALAB-381, 5 NRC 582, 591 (1977); Catawba, supra, 4 NRC at 620; Bailly, supra, 8 AEC at 418 n.4; see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 5197 554-55 (1978); ICC v.
Jersey City, 322 U.S. 503, 514 (1944); see also United States v. ICC, 396 U.S. 491, 521 (1970). In ICC v.
Jersey City, supra, at the Supreme Court recognized,
" Administrative consideration of evidence . . .
always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and
O i matters of which the Licensing boards are informed, some of which are truly significant, but as illustrated by this instance, others which are unsubstantiated. When the Board has both Applicants' and Staffs' responses before it, we are confident that the Board will be able to conclude that there is nothing here involved which is of such significance as to warrant reconvening of hearings and consideration of additional evidence, proposed findings, etc.
One final point in Mr. Bursey's motion deserves response In addition to his attempt to avoid his own showing on the delay factor, Mr. Bursey anticipates that Applicants will argue the tremendous costs which it would face from delay.
He argues that since the completion date for the plant keeps being extended, the Board should not believe any calculation of costs of delay based on an estimated completion date.
l It is no doubt obviou~s to the Board by this time that Mr. Bursey is long on facile allegati)ns and short on substantiation. Completion dates are estimates made in good faith of when the physical completion, checkout and all of the numerous other items which go to make up readiness l
(Footnote cont'd from previous page) the consideration of the case deliberate and careful.
If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new f act discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening."
l
}
for fuel loading, will be completed assuming, generally, only a minor allowance for things going wrong. It is well known to the Commission that licensing can cause delay. The Applicants' most recent estimate of a fuel load readiness date is about March 31, 1982. (Attachment 6,. Letter from Nichols to Denton, February 11, 1982). It appears that issuance of the initial decision in this matter could well be the critical path item to fuel load. From the Commission reports to Congress, (Palladino to Bevill, January 29, 1982, enclosed status report at 5) we assume that the initial decision will be issued during April, 1982 and that, if the decision is favorable, fuel loading and low power testing may then commence. The Applicants are conservatively assuming May, 1982 licensing and fuel loading in their estimates.
The Applicants have foreborne throughout the reconvened hearings and reopening which have already occurred from further arguing the costs of delay. Mr. Bursey has raised the matter. It does seem obvious however, and within the knowledge of the NRC as an agency, that, if the proceeding were reopened as Mr. Bursey requests, that there would be in fact delay in the decision, further delay in licensing, and the tremendous costs to which he refers. If the Board desires to have updated estimates of the costs of delay (it declined to receive earlier such updates at Tr. 2891-93
o 3 when most recently offered), we will be glad to provide appropriate affidavits on short notice. Suffice it to say that the South Carolina Public Service Authority which is a one-third co-owner of the plant already expects to be deficient in system capacity without the Summer unit and would need to make further purchases both of capacity and energy after November 1982 (when commercial operation has been estimated by SCE&G based on a May, 1982 fuel loading date). The Authority estimates as to the costs of delay are measured in the millions of dollars per month on the average, for delay in commercial operation during the six months following November, 1982, just for replacement capacity and energy. While SCE&G does not expect to be deficient in capacity in the six months after November, 1982, its differen-tial cost of generation using older plants and higher cost fuels would be substantial, being several million dollars per month in replacement energy on the average for every l
l month of delay in commercial operation past the November 1982 estimate based on the present licensing schedule, and a May fuel loading. Mr. Bursey cannot simply " hand-wave" awap these very real costs which would be occasioned by any delay associated with reopening the proceeding at this late date.
I i
l
. o CONCLUSION For all the foregoing reasons, the Intervenor has
' failed to satisfy the requirements t'or reopening the hearing and has failed to meet the standards for admitting a late-filed contention. Accordingly, the_ Board should deny the Intervenor's motion in all respects.
Respectfully submitted, b -
J o dle p h B . Knoty,Jr.
Jeb C. Sanford Debevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9800 Attorneys for Applicants of Counsel:
Randolph R. Mahan General Attorney South Carolina Electric & Gas Company P.O. Box 764 Columbia, South Carolina 29218
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