ML20050B926
| ML20050B926 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/05/1982 |
| From: | Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8204070563 | |
| Download: ML20050B926 (16) | |
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STAFF 4/5/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-413
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50-414 (Catawba Nuclear Station,
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NRC STAFF'S OBJECTIONS TO LICENSING BOARD'S fp MARCH 5. 1982 ORDER ON ADMISSION OF CONTENTION
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INTRODUCTION Og> #
Pursuant to 10 CFR Section 2.751a(d), and the authorizati g
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Licensing Board in its Memorandun and Order (Reflecting Decisions Made Following Prehearing Conference), dated March 5, 1982 (" March 5, 1982 Order"), the NRC Staff hereby obiects to those portions of the Board's March 5, 1982 Order admitting contentions which the Licensing Board concedes lack the specificity, without further revision, to satisfy the criteria of 10 CFR Section 2.714(b). As explained below, the Staff views the regulations as not permitting the admission of defective contentions subject to later specification, whether by information supplied by Applicant, Staff documentation, or by discovery.
In addition the Staff believes the Licensing Board lacks the authority to waive the provision for admission of late-filed contentions found in 10 CFR Section 2.714(a)(1)(i)-(v), either as to conten-tions admitted " conditionally" or as to new contentions raised upon receipt by intervenors of previously unavailable Applicant or Staff documents.
1;ESIG!itTED ORIGINAL 8204070563 820405 DR ADOCK 05000 Certified F:r_ _ M N _ ]
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DISCUSSION A.
The Licensing Board's Decision In the March 5, 1982 Order, the Licensing Board has admitted 17 contentions despite the Licensing Board's concession that these con-tentions lack the specificity normally required by Section 2.714(b) of the Commission's Rules of Practice (10 CFR Section 2.714(b)).
These contentions fall into three general categories: (1) those which lack specificity, but were considered by the Board to be " premature" due to the unavailability of the Staff's Draft Environmental Statement or Safety Evaluation Report;1 (2) those which lack specificity, but might be nade more specific with facts contained in documents expected to be produced by the Applicant, but not currently available;2/ and those which lack specificity, but for which specificity may be provided through discovery.3_/
The Board's rationale for admitting these contentions is discussed in some detail (March 5,1982 Order at 7-13) and nay be summarized as follows:
First, the cases which interpret Section 2.714(b) to require specificity in stating the basis for a contention (a) require only that
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Palmetto Alliance Contentions 1, 2, 10; Carolina Environmental Study Group (CESG) Contention 9, Charlotte-Mecklenburg Environmental Coalftfon (CMEC) Contention 4.
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Palmetto Contentions 3, 4, 21, 22, 26; CESG Contention 16.
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Palmetto Contentions 6, 7, 18, 25; CESG Contentions 13, 17. With respect to CESG Contention 13, the discovery discussed at the prehearing conference (See Tr. at 350) was discovery against intervenor; this sort of discovery is not consister ? with the Board's rationale as set out in the Order (March 5,1982 Order at 13).
. one contention be reasonably specific to permit intervention, (b) are all cases in which voluminous information was available from which specific contentions could be derived, and (c) did not require an intervenor to plead specific bases "where the relevant information simply [was] not yetavailable"(M.at8).S/ Second, where such relevant information is lacking, licensing boards not uncommonly admit vague contentions conditionally or defer making a ruling until necessary documentation is available (Ibid.). Third, it is unreasonable and perhaps inconsistent with the statutory right to a hearing to require the detailed pleading of a contention (e.g., on emergency planning) "before the emergency plans are even prepared" (M. at 9-10).
Fourth, a rule requiring plead-ing of all NEPA contentions before the Staff's impact statement is even written is an " impermissible restriction on agency consideration of the environnent"(M.at11).
From this, the Board concludes that a reasonable approach is to admit non-specific contentions co,'ditionally, if the concerns expressed are likely to be addressed in as ye: unavail-eble Staff or Applicant documents, or may be clarified through discovery, and to consider revised or new contentions thereafter filed without requiring them to meet the late-filing criteria of 10 CFR Section 2.714(a).
Id. at 12-13
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While the Board disagrees with the Staff position that the regulations require all contentions to be stated with reasonable specificity at the commencenent of the proceeding, the Board nevertheless offers no analysis of the regulatory provision except to say that "a reading of the last sentence of 10 CFR 6 2.714(b) arguably leads to [the Staff's] conclusion."
Id. at 7, n. 7.
In fact, the Board goes on to state that it is "other compelling considerations [which] reouf re a different conclusion."
Thus, the main thrust of the Board's argunent is that the ceses do not require all contentions to be stated with reasonable specificity at the pleading stage, and that any such requirenent, if it exists, is unreasonable and runs afoul of the right to a hearing and of the requirement to accord the " fullest possible" consideration of the environment under NEPA Qd. at 10-11), insofar as it may foreclose a petitioner fron raising issues that the petitioner could not reasonably be expected to address at the pleading stage.
As set forth below, the Staff's position is (1) that the specificity requirements apply to the admission of all contentions, even if a decision on intervention requires only that one contention be found admissible; (2) that allowing discovery on contentions not meeting the specifi:ity requirements simply because the party is admitted to the proceeding is contrary to the pleading process contenplated by the regulation, as interpreted by the Commission; and (3) that the late-filing requirement does not foreclose later admission of reasonably specific contentions where new information becomes available, and waiver of the late-filing requirements is neither authorized nor necessary.5/
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On March 31, 1982, Applicants filed " Applicants' Motion For Reconsideration Or In the Alternative for Certification" in which Applicants object to some of the same Board rulings ob,iected to by the Staff herein.
In addition to ob,iecting to Board rulings, however, Applicant also expressly moved for certification of certain Licensing Board rulings pursuant to 10 CFR $ 2.718(i) in the Svent that the Board does not sustain Applicants' objections.
The NRC Staff will respond separately, pursuant to the provisions of the rules of practice, to Applicants' additional motion for certification.
. 8.
Neither the Regulations nor the Case Law Permit Admission of Contentions not Meeting the Specificity Requirements 1.
Despite the "One Good Contention" Rule, Each Admitted Contention Must Satisfy 10 CFR Section 2.714(b)
The Licensing Board correctly reads the case law to require only that at least one contention be pleaded with requisite specificity at the intervention stage. However, the Board fails to state the reason for that -- which is that "it is suf ficient for intervention purposes that
-one contention has been validly presented". Mississipri Power and Light Company (Grand Gulf Nuclear Station, Units I and 2), ALAB-130, 6 AEC 423 at 424 (1973); Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371 (1973) (Emphasis added). There is nothing in Grand Gulf, or the cases it relied upon to suggest that once the one contention necessary for intervention has been judged adequate, other non-specific contentions may be admitted.
This, however, is precisely what this Licensing Board has decided.6_/ The Licensing Board has erred in so ruling.
The "one good contention" rule, now embodied in 10 CFR Q 2.714, is simply a criterion for intervention -- to be admitted as a party to an NRC proceeding a petitioner must proffer at least cre admissible contention.
The rule was never intended, and cannot be used, to allow the wholesale admission of vague contentions which do not meet the requirements for specifity.
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In Waterford, the Appeal Board deferred ruling on the other contentions, stating: "The questions as to whether other contentions shall be allowed, and whether, ultimately, contentions previously allowed can be disposed of by summary disposition, can be dealt with through further proceedings and need not be considered in ruling upon intervention." Grand Gulf, supra, 6 AEC at 424.
(Emphasis added.)
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The Absence of Staff or Applicant Documents Has Not Been Held to Justify Admission of Concededly Vague Contentions The Staff believes the Board's ruling admitting vague contentions where Staff or applicant documents -- which could allow the specification of contentions -- are unavailable ignored Commission case law and misread certain cases upon which it relied for this proposition.
In both Wisconsin Electric Power Co. (Koshkonong Nuclear Plant), CLI-74-45, 8 AEC 928 (1974), and Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, aff'd sub nom.,
BPI v. AEC, 502 F.2d 424 (D.C. Cir., 1974), the leading cases the Board seeks to distinguish, the same documents were available to petitioners as are available to the Catawba intervenors.
Thus, in Koshkonong, as here, petitioners lacked both the Staff SER and EIS, as well as the report o' the ACRS (Koshkonong, supra, 8 AEC at 929).
In Prairie Island, as here, petitioners appeared to have only the Applicant's FSAR and Environmental Report (Prairie Island, supra, 6 AEC at 192).
These cases stand squarely for the proposition that where the Applicant's safety analysis and environmental reports are available, petitioners cannot rely on the absence of other documents as grounds for deferring their obligations to plead specific contentions. This Licensing Board incorrectly applies these holdings by finding that petitioners may rely on the absence of documents to justify failure to plead specific contentions.
Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683 (1980), relied upon by the Board for this proposition, does not deal with the same situation we face here.
The
. Licensing Board there admitted contentions on the inadecuacy of the Applicant's ER and of Applicant's responses to questions posed by the Staff; thus attention focused on the inadequacies of existing documents.
The Board cited no authority for its broader statement that "it is... normal to allow an intervenor to plead the inadeouacy of documents or responses which have not yet been made available to the parties." Emergency planning contentions were admitted based upon the new emergency planning rule.
Contentions on the adequacy of the Staff's treatment of generic safety issues in an unavailable Staff SER were admitted based on specific directions by the Appeal Board in Virginia Electric and Power Co. (North Anna Nuclear Power Station, Unit I and 2), ALAB-491, 8 NRC 245 (1978),
and Gulf States Utilities Company (River Bend Station, Units 1 and 2),
ALAB-444, 6 NRC 760, (1974) that Licensing Boards should consider the adequacy of the Staff analysis of generic safety issues.
In no instance did the Licensing Board in Byron make a finaing that the contentions it adnitted failed to meet the specificity requirements of 10 CFR Section 2.714(b).
Thus Byron is clearly distinguishable from the instant case.
Moreover, the Licensino Board in Byron itself noted that:
It is incumbent upon intervenors to frame their contentions with sufficient preciseness to show that the issues raised are within the scope of cognizable issues to be considered in an adjudicatory proceeding. To this end, a hearing participant "must be specific as to the focus of the desired hearing," and contentions must serve the purpose of def.ining the " concrete issues which are appropriate for adjudication in the proceeding." Properly framed contentions will further reasonably inform the other parties what issues they will be required to defend against or oppose to develop a complete record in an evidentiary hearing.
Byron, supra, 12 NRC at 689. Given the Byron Licensing Board's rationale, the limited nature of its actual holding, and the lack of support for
. its broader dictum that contentions challenging the adequacy of non-existent Staff documents are admissible, the Board has accorded undue weight to this single decision in ruling on contentions for Catawba.
Further, there is an important distinction between deferring ruling on a contention until a document is in hand, as the Licensing Board did in Commonwealth Edison Company (Quad Cities Station, Units 1 and 2),
LBP-81-53, 14 NRC 912, 914-915 (1981), and admitting a contention subject to later refinement.
That distinction, of course, is that a vague contention which has been admitted can form the basis for holding a hearing without a proper showing that a hearing is in fact justified under Comission regulations.U Thus, there is no substantial support for the broad proposition advanced by the Licensing Board that contentions conceded to be deficient nay be admitted conditionally where later-issued
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The Staff similarly views as distinguishable the recent Appeal Board decision in Tennessee Valley Authority (Browns Ferry Nuclear Power-Plant, Units 1, 2 and 3), ALAB-664 (January 6, 1982), which reversed the Licensing Board and held that in dismissing petitioners' contentions the Board should have deferred its decision until af ter the Staff environmental assessment had been received, and cpportunity given to petitioners to comment thereon.
Id. at 3.
The Appeal Board expressly ruled that Browns Ferry waslot the
" ordinary case" but that it was one in which the petitioners' right to intervene night well turn on the conclusion in an uncompleted Staff analysis. That being the case, the Appeal Board held that a ruling on the petition to intervene should await the completion of the Staff analysis and petitioners' comments thereon.
Id. at 16.
No such unique circumstance obtains in the instant proceeding as the Catawba petitioners' right to intervene is not all dependent upon any Staff or Applicant analyses which are currently unavail-able. Thus, the Appeal Board's decision in Browns Ferry provides no basis on which the Licensing Board in the instant proceeding may admit contentions which concededly do not meet the sp e ificity l
requirements of the regulations.
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. or available documents may aid a petitioner in framing a proper contention.8_/
3.
Use of Discoverv to Frane Contentions In the March 5, 1982 Order, the Licensing Board conditionally admitted six contentions which the Board considered to lack specificity, to be made more specific following discovery.
(See note 3, supra. ) The Staff objects to this ruling insofar as it permits intervenors to have discovery in order to frame contentions which meet the threshold for specificity in Section 2.714(b).
The Prairie Island and Koshkonong decisions cited above stand for the preposition that a party may be held to the specificity standards in Section 2.714(b) despite the lack of access to discovery.
Prairie Island, supra, 6 NRC at 192; Koshkonong, supra, 8 NRC at 929.9/ While both of these cases related to the threshold determination for granting an intervention petition, there
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The Staff recognizes that the Board has considerable discretion in making its determination on admission of contentions, particularly when rejection of contentions will close the petitioner's access to an administrative remedy.
See, Philadelphia Electric Company, et al. (Peach Botton Atomic Power Station, Units 2 and 3), ALAB-216, 8 NRC 13, at 21 (1974). However, there is no rationale for strain-ing the regulations, as the Board here has done, where applying the regulatory standard would not foreclose intervenors fron later reising issues under 10 CFR Section 2.714(a).
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It should be noted that under,the rules in effect when those cases were decided an intervenor was required to state the factual basis for his contentions in an affidavit, a requirement later dropped.
(See 43 Fed. Reg.17798, April 26,1978).
If an intervenor could nit avail himself of discovery where the burden required listing of factual bases by affidavit, a fortfori, discovery should not be a requirement where assertion oT reasons, rather than facts, is all that is needed.
(See, e.g., Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, at 548-549 (1980)).
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. is nothing in those decisions suggesting that once intervention is allowed on one contention, discovery then becomes available foi purposes of framing contentions which reet the threshold for specificity.E!'
In the March 5,1982 Order, the Board justifies admission of non-specific contentions reasoning that "[t]he principal functional purpose of contentions at this juncture is to place some reasonable limits on discovery" (Id. at 13), and that there is no prejudice to the hearing process if such discovery is more broad than the contentions which survive the more stringent specificity standards of the final pre-hearing conference.
Contrary to the Board's assertion, the purpose of conten-tions at this stage of the prcceeding is not to set outer boundaries on s
discovery.
Rather, the purpose is to assure that. parties are suffi-ciently put on notice so that the) will know at least generally what they must defend against or oppose and to assure that the proposed issues are proper for adjudication in the proceeding and warrant further explora tion.
Peach Bottom, supra, 8 AEC at 20, 21.
While the Staff would agree that the issues which'go to hearing are the subject of a narrowing process, such process is independent of the ini'.ial requirements of Section 2.714(b).
Summary disposition natters are also generally heard and determined prior to hearing in order to
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In both Prairie Island and Koshkonong, the Appeal Board and the Comission held that there should have been a wealth of available data in the applications on which to frame adequately specific contentions without discovery.
That same situation obtains here where there is available not only the operating license application' and multi-volume FSAR and ER but also the entire public record from the Catawba construction permi' proceeding from which substantial
_e information on_the nature and design'of the Catawba facility could 1
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. narrow the issues for hearing (elininating those issues as to which there is no genuine factual disputel. But, as the cases indicate, this assumes only that the merits of assertions are not to be decided at the initial pre-hearing conference stage, not that intervenors nay delay the time they are required to file specific contentions until sunnary dispo-sition motions are heard. See, Allens Creek, supra,11 NRC at 550-551.
Thus the fact that further refirement of issues for hearing may take place at the final pre-hearing conference does not imply that specificity nay be overlooked at the intervention stage. As the Commission stated in the Koshkonong decision, the general thrust of.fudicial as well as administrative practice is that parties file their basic pleadings before they complete discovery, and that this procedure is not unfair because where "an unforeseen issue present(s) itself further on in the proceedings," leave to amend petitions may be granted upon proper showing.
(Koshkonong, supra, 8 NRC at 929).
In summary, the Board's admission of contentions it concedes do not i
meet the 10 CFR Section 2.714(b) specificity standard, on the rationale that information may become available in the future to supply specificity, is e direct challenge to the clear language of the regulation, contrary to Commissica precedent and past consistent practice, and is unsupported by the case law. As a result, the Staff believes the Board's action is erroneous and must be reversed.
C.
Revised and New Contentions Must be Reviewed Under the Late-Filing Provisions of 10 CFR Section 2.714 The Licensing Board determined in its March 5,1982 Order that since intervenors' " lateness" in filing reviseG or new contentions will i
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. 2 be beyond their ' control, it will not apply the Section 2.714(a) late-filing provision to late contentions where Staff analyses and Applicant documents become available only after pleadings are required to be filed. However, the Board does not analyze the application or the operation of the late-filings rule and offers no regulatory or case law to support not applying the requirement.
Rather, the Board seeks to avoid the late-filing requirements altogether by interpreting the case law on
" specificity" to find that in the situation before us the vague conten-tions are nonetheless admissible. As we have shown above, the cases do not support the Board's position on Section 2.714(b), and in any event such a rationale is inapplicable to late-filed new contentions, lioreover, review of Commission actions dealing with application of Section 2.714(a) clearly shnws that the provision nust be applied to the instant situation and, further, that the Board's apparent presumptinn a
that application of the late-filing provisions is unfair is unwarranted.
The provision for considering late filings,10 CFR Section 2.714(a),
provides:
Nontimely filings will not be entertained absent a detern. nation by the Conmission, the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a i
balancing of the following factors in addition to those set out in paragraph (d) of this section:
(i) Good cause, if any, for. failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
. (v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
While the current version of the provision differs somewhat from the languagepriortoitsamendmentin1978,b the case law on the provision indicates that both before and after the amendment, " good cause" was only one factor to be considered, rather than a dispositive factor. See, Nuclear Fuel Services Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273 (1975); Duke Power Co., (Perkins Nuclear Station, Units 1, 2 & 3), ALAB-431, 6 NRC 460 (1977); see also, Puget Sound Power & Light Company (Skagit Nuclear Power Project, Units 1 and 1
2), ALAB-523, 9 NRC 58 (1979).
With specific reference to late-filed contentions, the Commission has interpreted this provision rather liberally where new matters ha.'e arisen after the initial pleadings.
For example, the Comission stated in Voshkonong:
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...Nontinely filings will not be entertained absent a determination by the Comission, the presiding officer or the atomic safety and licensing-board designated to rule on the petition and/or request that the petitioner has made a substential showing of good cause for failure to file on time, and with particular reference to the following factors....
(1) The availability of other neans whereby the petitioner's interest will be protected.
(2) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(3) The extent to which petitioner's interest will be represented by existing parties.
(4) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
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. Leave to amend petitions for intervention will be granted where a petitioner shows that good cause exists for the belated assertion and where such amendment will assist the Board in resolving the issues before it without undue delay." (Koshkonono, supra, 8 AEC at 929.)
Similarly, the Commission also noted:
"... our longstanding practice of permitting anendments to petitions to intervene for good cause shown. Unless special considerations dictate otherwise in specific circumstances, new information appearing in previously unavailable documents would oenerally constitute good cause for amendment, assuming of course that the request to anend is expeditiously presented and is otherwise proper. Such determinations rest in the sound discretion of the Licensing Board."
Indiana and Michigan and Electric Company (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75, 5 NRC 13 at 14 (1972).
Further, the Cook decision has been followed under, the revised Section 2.714(a) to justify admission of late-filed contentions where previously unavailable information forned the basis for a contention sought to be admitted after the initial intervention deternirations had been made. Cincinnati Gas and Electric Company, et al. (William H.
Zimmer Nuclear Station), LBP-79-22,10 NRC 213, at 214-217 (1979).
floreover, where a Licensing Board determines, upon balancing of the five factors, that untimely filings are justified, that decision will be reversed only for an abuse of discretion.
See, e.g., West Valley Reprocessing Plant, supra, CLI-75-4,1 NRC 273, at 275; South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 885 (1981).
Finally, the Commission in its Statement of Consideration adopting the current Section 2.714(a) (43 Fed. Reg. 17798) expressly stated that the criteria apply to both late filings of petitions and "anending,
expanding, and deleting contentions." Ibid.
A reason for clarifying the provision in this manner was that:
There is no provision in 6 2.714 which specifically addresses the matter of amending or expanding contentions after a petitioner has been admitted as a party.
Yet contentions are frequently expanded or amended because of new infornation which comes to light after petitioners have been adnitted, such as information in the Commission Staff's safety evaluation or environmental impact statements.
Ibid.
Thus, there can be no doubt that the Commission intended that the criteria for late filing in 10 CFR Q 2.714 be applied to amendments to contentions based on new inforcation contained in documents produced by the Staff after intervention determinations have been made, or that the Connission understood such a requirement to pose no insurmountable hardship on intervenors.
Under these circunstances, the Licensing Board may not disregard the regulatory requirements when considering revised or new contentions filed subsequent to issuance of the Staff SER cr EIS, or Applicant-filed emergency plans. On the other hand, the clear frport of the case law and the Conmission regulatory intent is that while the criteria of Section 2.714(a) must be applied, new information of the sort being considered in this case will frequently justify the admission of late contentions.
III.
CONCLUSION in summary, the Staff objects to the Licensing Board's rulings in its March 5,1982 Ceder admitting contentions which concededly lack the requisite specificity to comply with'10 CFR 5 2.714 and establishing that the late-filing criteria for new and amended contentions will not
. i be applied in this proceeding for such contentions where Staff and Applicant documents are presently not available.
The Board's rulings (1) admittino Palnetto Contentions 1, 2, 3, 4, 6, 7, 10, 21, 22, 25 and 26; CESG Contentions 9, 13, 16, and 17; and CHEC Centention 4, which the Board conceded were vague, are contrary to the requirements of 10 CFR 6 2.714 and Commission caselaw and should be reversed; and i
(2) waiving the late filing criteria for new and amended contentions are contrary to the requirements of 10 CFR @ 2.714 and should not be followed.
Respectfully submitted, 1.-~-
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George E. Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 5th day of April, 1982.
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