ML20052A878

Renewed Motion for Certification of Listed Issues in ASLB 820305 Memorandum & Order.Aslb Order Required Applicants to Engage in Discovery W/O Knowledge of Specific Nature of Intervenor Contentions.Certificate of Svc Encl

ML20052A878
Person / Time
Site:	Catawba
Issue date:	04/26/1982
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8204290302
Download: ML20052A878 (8)

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UNITED STATES OF AMERICA p g ._ ,

NUCLEAR REGULATORY COMMISSION 'H BEFORE THE ATOMIC SAFETY AND" LICENSING 2 BOAR In the Matter of )

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DUKE POWER COMPANY, et al. ) Docket Nos. 50-4  ;

) 50-(' Catawba Nuclear Station, )

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Units 1 and 2) ) ,

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;ur amccriu APPLICANTS' RENEWED MOTION FOR CERTIFICATION- / kc On April 13, 1982, the Atomic Safety and Licensing / b g $

Board (" Licensing Board") issued an Order in the captioned proceeding wherein it informed the parties that, given the

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"other adjudicatory responsibilities" of the Board, it would be unable to " consider and decide" the objections raised by the parties in Motions for Reconsideration of the Board's Memorandum and Order of March 5, 1982 "until late May or early June." 1/

Given the importance of the issues involved 2/ and.the direct effect on the conduct of the remainder of this pro-ceeding, Duke Power Company, et al. (" Applicants") res-pectfully request that the Licensing Board certify at this time the following issues to the Atomic Safety and Licensing l_/ Applicants note that they did not receive a copy of the Board's Order until April 19, 1982.

2_/ Applicants note that the Commission has recently, determined that similar issues raised in the TVA, bgd #

Browns Ferry case were significant enough to warrant their sua sponte review (Tennessee Valley Authority j /f (Browns Ferry Nuclear Plant, Units 1, 2 and 3),

Docket Nos. 50-259, 260, 296-OLA, Commission Order, .

NRC (April 19, 1982) ) .

820429030x -

r Appeal Board (" Appeal Board"):

(1) The Board's conditional admission of 10 contentions lacking the specificity re-quired by 10 CFR S2.714, based on the unavailability of Staff or Applicants documents. These contentions were admit-ted subject to the provision of the re-quisite specification after pertinent docu-ments become available.

(2) Tha Board's conditional admission of six contentions (presently lacking specificity) on the basis that requisite specificity can be achieved through discovery.

(3) The Board's waiver of application of the late-filing criteria for revised .o:t new contentions that may be submitted after new information or analyses become available.

(4) The Board's holding that Intervenor Pal-metto Alliance need not plead specific con-tentions on the facility security plan in order to obtain access to the plan.

(5) The Board's admission of Palmetto Alliance contentions 24 and 25 on financial quali-fications as proper subjects for litigation.

(6) The Board's direction that, henceforth, intervenors be served with copies of all l

relevant documents cenerated by Applicants and Staff in this proceeding. 3/

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3/ Applicants would note that the Staff in its pleading of April 5, 1982, supports Applicants' request for certification with respect to five of the six issues raised. Applicants would also note that the fifth issue above (financial qualifications) involves con-l i

sideration of new information not before the Board at the time it rendered its March 5, 1982 Memoran-dum and Order. See Applicants pleading of March 31, 1982.

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e Without question, the Licensing Board's March 5, 1982 Memorandum and Order raises significant policy matters that, if left unchallenged, would have a pervasive impact upon the proceeding. The challenged rulings go to the very heart of how the Commission conducts its proceedings and are, in Applicants' view, contrary to controlling regu- r lation. Furthermore, the Memorandum and Order has placed Applicants under the disadvantage of remaining without knowledge as to the specific nature of Intervenors' con-

.i tentions and yet being required to engage in discovery. 4/

Such a result works an immediate and serious irreparable impact upon Applicants which cannot be alleviated by a 1

-4/ The practical effect of the Memorandum and Order on the proceeding is already making itself felt. In 13_s_ April- 13 , - 19 8 2 Order the Board directed discovery to continue upon contentions which Applicants urge certification is warranted. Applicants are aware of the Board's early ruling procedure set forth in its April 13, 1982 Order;- however the Board ruled such procedure is not applicable to "the specificity

! of contentions question," the central matter upon

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which Applicants-seek certificati-onT-~FurEhsr, with l

respect to the contentions not involving "the speci-ficity of contentions question" (i .e. , contentions l which are to be made specific through discovery) ,

l the Board ruled that only objections on the grounds I of undue burden would be entertained. To answer l discovery requests regarding contentions which are totally lacking in specificity prejudices Applicants' ability to object on matters such as relevancy.

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later appeal. 5/ Under such a circumstance immediate certification is appropriate. See Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2),

ALAB-271, 1 NRC 478 (1975); Toledo Edison Company, et al.

(Davis-Besse Nuclear Power Station), ALAB-297, 2 NRC 727 (1975); Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977); Public Service Company of Oklahoma, Associated Electric Company Cooperative, Inc. (Black Fox Station, Units 1 and 2), LBP-76-38, 4 NRC 435, 437 (1976);

Houston Lightina and Power Co. (Alleras Creek Nuclear Gen-erating Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981).

5/ Applicants are of the view that, given the nature of the issues sought to be certified, the discovery

/ process should be suspended pending resolution of the certification questions. In the alternative, Appli-cants request a stay of discovery pursuant to 10 CFR S2.788. With regard to the four-factor test estab-lished to rule on requests for stays, Applicants maintain that such factors favor the granting'Appli-cants' motion. Specifically, Applicants' March 5, 1982 Motion for Reconsideration presents a strong possibility of Applicants' success on the merits of the issues (Factor 1). While Applicants may not be irreparably injured if the stay is not granted, pro-ceedina with discovery on those contentions that are not yet defined would be extremely burdensome and would result in a substantial and unwarranted commit-ment of resources (Pactor 2). If Applicants do not prevail on the merits, staying discovery on undefined contentions will not harm intervenors in this pro-ceeding (Factor 3). Clearly the public interest lies in granting the stay which may prevent an unwarranted broadening of the issues and an unwarranted expendi-ture of resources (Factor 4).

The Commission has provided guidance with respect to the matter at hand. See the Commission's Statement of Policy regarding this matter wherein it states:

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The licensing boards should issue timely rulings on all matters. In particular, rulings should be issued on crucial or potentially dispositive issues at the earliest practicable juncture in the pro-ceeding. Such. rulings may eliminate the need to adjudicate one or more subsidiary issues. Any rul-ing which would affect the scope of an evidentiary-presentation should be rendered well before the presentation in question. Rulings on procedural matters to regulate the course of the hearing should also be rendered early.

If a significant legal or policy question is pre-sented on which Commission cuidance is needed,.a board should promptly refer or ce'rtify the matter to the Atomic Safety and Licensing Appeal Board or the Commission. A board should exercise its best judgment to try to anticipate crucial issues which may require such guidance so that the reference or certification can be made and the response received without holding up the proceeding. [ Statement of

- Policy on Conduct of Licensina Proceedings, CLI-86-8, 13 NRC 452, 456-7 (1981)].

While Applicants have requested reconsideration of the Board's March 5, 1982 Memorandum and Order, action on

( such is not a necessary prerequisite to certification.

Rather, Applicants maintain that their positions, and those of the Board, are sufficiently set forth in the l

March 31, 1982 pleading and March 5, 1982 Memorandum and l

l Order, respectively, such that the issues are in a posture I

ripe for Appeal Board review. 6/

Entitlement to timely resolution coupled with the significance of the issues, argue for grant of the instant Renewed Motion for Certification.

Respectfully submitted,

/J. Michael McGara#y, IIlv Malcolm H. Philips, Jr.

DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9800 William L. Porter

. Albert V. Carr, Jr.

Ellen T. Ruff DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 Attorneys for Duke Power Company, et al.

April 26, 1982 6/ Applicants are cognizant of Appeal Board decisions emphasizing the need for articulation of the reasoning for Licensing Board decisions including the bases for decisions on certification. (See, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, l Units 1 and 2), ALAB-504, 8 NRC 406, 410-11 (1978);

Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB 422, 6 NRC 33, 41 (1977), aff'd.,

CLI-78-1, 7 NRC 1 (1978), aff'd. sub nom. New England Coalition on Nuclear Pollution v. NRC7 582 F.2d 87 (1st Cir. 1978); Cincinnati Gas and Electric Co.

i (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 10-11 (1976). Applicants maintain such case law l

is satisfied by virtue of the thorough articulation of the Licensing Board in its March 5, 1982 Memorandum l and Order.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC-SAFETY AND LICENSING BOARD l

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) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Renewed Motion For Certification" in the above captioned matter, has been served upon the following by deposit in the United States mail this 26th day of April, 1982.

James L. Kelly, Chairman George E. Johnson, Esq.

Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan William L. Porter, Esq.

Union Carbide Corporation Albert V. Carr, Jr., Esq.

P.O. Box Y Ellen T. Ruff, Esq.

j Oak Ridge, Tennessee 37830 Duke Power Company P.O. Box 33189 Dr. Richard F. Foster Charlotte, North Carolina 28242 P.O. Box 4263 Sunriver, Oregon 97701 Richard P. Wilson, Esq.

' Assistant Attorney General Chairman State of South Carolina Atomic Safety and Licensing P.O. Box 11549 Board Panel Columbia, South Carolina 29211 U.S. Nuclear Regulatory Commission Robert Guild, Esq.

Washington, D.C. 20555 Attorney-at-Law 314 Pall Mall Chairman Columbia, South Carolina 29201 Atomic Safety and Licensing Appeal Board Palmetto Alliance U.S. Nuclear Regulatory 2135 1/2 Devine Street Commission Columbia, South Carolina 29205 Washington, D.C. 20555

O 2-Jesse L. Riley Scott Stucky 854 Henley Place Docketing and Service Station Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Henry A. Presler Washington, D.C. 20555 Charlotte-Mecklenburg Environmental Coalition.

9'43 Henley Place Charlotte, North Carolina 28207 J. Michael Mc,Garry,pII

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