ML20054D048
| ML20054D048 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 04/20/1982 |
| From: | Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8204220278 | |
| Download: ML20054D048 (23) | |
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STAFF 4/20/82 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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co Units 1 and 2)
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9969 9
NRC STAFF'S RESPONSE TO APPLICANTS' MOTION G6 FOR CERTIFICATION OF CERTAIN RULINGS IN LICENSING 9-1"6B F 1 Qu%%3?"t#$
N BOARD'S PREHEARING CONFERENCE ORDER 1
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'N I.
INTRODUCTION
/gi Pursuant to 10 CFR Section 2.730(c), the NRC Staff hereby responds to " Applicants' Motion for Reconsideration or in the Alternative for Certification", served March 31, 1982 (Applicants' Motion) insofar as it requests the Licensing Board to certify to the Atomic Safety and i
Licensing Appeal Board certain rulings contained in the Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference), dated March 5, 1982 (March 5, 1982 Order).
The remainder of Applicants' motion, though styled " Motion for Reconsideration", is viewed by the Staff as objections filed pursuant to the March 5,1982 Order, and 10 CFR Section 2.'/51a(d), as ta which no reply is permitted absent directions by the Board.
Applicants seek reversal by the Licensing Board or, alternatively, certification to the Appeal Board of six rulings of the Licensing Board.
(Applicants' Motion at 2-5).
Those rulings are:
DEstenTED ORIGINAL g4gj@$[o$$$ Q Certified By,2 73 d
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. (1) The Board's conditional admission, absent the specificity required by 10 CFR Q 2.714, of 10 contentions based on the unavailability of Staff or Applicant documents which might allow the further particularization of the contentions. These contentions were admitted subject to further specification after pertinent documents become available, but the Board ruled that the late-filing criteria of 10 CFR 9 2.714(a) would not be applied.
(2) The Board's conditional admission of six contentions subject only to the provision of the requisite specificity after completion of discovery.
(3) The Board's waiver of application of the late-filing criteria for revised or new contentions that may be submitted af ter new information or analyses become available.
(4) The Board's holding that intervenor Palmetto Alliance need not plead specific contentions 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 qualifications as proper subjects for litigation.
(6) The Board's direction that, henceforth, intervenors be served with copies of all relevant documents generated by Applicants and Staff in this proceeding.
The NRC Staff's response to Applicants' motion follows.
For the reasons set forth below, the Staff supports Applicants' request for certification as to the first five listed rulings, in the event the Licensing Board overrules objections to those rulings, but opposes certification as to the Licensing Board's ruling that relevant Staff and Applicant documents be served on the parties.
l l
. II.
DISCUSSION A.
Standards for Certification of Licensing Board Rulings Applicants have requested that, in the event the Licensing Board overrules Applicants' objections to the Poard's prehearing conference order, the Licensing Board certify its rulings to the Appeal Board for review. The rulings as to which Applicants seek certification are i
interlocutory in nature and normally are not subject to immediate review unless, in the judgment of the presiding officer, referral of the rulings i
for review pursuant to 10 CFR { 2.730(f) is warranted to prevent detriment to' the public interest or unusual expense or delay, or the presiding officer otherwise determines in his discretion to certify such rulings pursuant to 10 CFR % 2.718(i).
In ruling on objections to a special prehearing conference order,
[t]he board may revise the order in consideration of the objections presented and, as permitted by 6 2.718(i), may certify for determination to the Commission or the Atomic Safety and Licensing Appeal Board, as appropriate, such natters raised in the objections as it deems appropriate.
10 CFR % 2.751a(d).
Thus the Licensing Board pay, pursuant to Applicants' request, certify its rulings to the Appeal Board for review provided that the standards for certification are met.
In accordance with the principle that interlocutory appeals, whether by referral or certification, will only be entertained where the public interest so requires, the Appeal Board has consistently indicated that:
[a]lmost without exception in recent times, [it has] undertaken discret knary interlocutory review only where the ruling below either (i) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive and unusual manner.
. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310 /; Public Service Co. of Indiana I
(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190,1192(1977).2/
These standards for undertaking discretionary interlocutory review of actions or rulings by the Licensing Board were more recently affirmed in South Carolina Electric and Gas Co. et al. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC (December 14,1981), Slip Op. at 43 wherein the Appeal Board again quoted directly from Marble Hill. While these cases are cast in terms of the Appeal Board's exercise of its discretionary review function, we believe that they articulate the appropriate standards for the Licensing Board to use in its determination of whether referral or certification of rulings to the Appeal Board for interlocutory review is warranted.
In view of these standards, certification to the Appeal Board for review pursuant to Applicants' request would be appropriate only where the ruling or issue was shown to (1) threaten the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner.
'-1/
In Allens Creek, intervenors filed a motion with the Licensing Board for " Interlocutory Appeal per 2.730(f) and Certification of Question per 2.718(i)" and a motion to the Appeal Board for directed certification. The Licensing Board denied the motion addressed to it in an unpublished Memorandum and Order dated March 2,1981 and the Appeal Board refused to direct certification in ALAB-635.
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In Marble Hill, the Licensing Board referred a ruling to the Appeal Board. The Appeal Board refused to accept the referral.
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. The Staff's view on whether Applicants' request for certification meets these standards follows.
B.
Application of Standards for Certification to Rulings for Which L
Certification is Sought _
1.
Admission of Vague Contentions is Directly Contrary to Law, Threatens an Impact Which Cannot be Alleviated by later Appeal, and Will Affect the Proceeding in a Pervasive and Unusual Manner The admission by the Licensing Board of contentions concededly lacking the specificity required by 10 CFR Section 2.714(b) subject to further specification when pertinent Staff analyses and Applicant documentation are made available (the first ruling to which Applicants object), and the admission of contentions concededly lacking the required specificity subject to further specification after discovery (the second ruling to which Applicants object), both constitute direct challenges to, and departures from, the specificity standard set out by regulation in Section 2.714(b), as well as the case law applying that standard.
As noted in "NRC Staff's Objections to Licensing Board's March 5, 1982 Order on Admission of Contentions," dated April 5,1982 (Staff Objections), the Commission has held that the absence of the Staff's safety evaluation and draft environmental impact statement (as well as the ACRS review) does not relieve a petitioner of its obligation to plead reasonably specific contentions at the outset, and that discovery for purposes of pleading adequately specific contentions is not permitted. Wisconsin Electric Power Co. (Koshkonong-Nuclear Plant), CLI-74-45, 8 AEC 928, 929 (1974); see also, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1
. and 2), ALAB-107, 6 AEC 188, aff'd sub nom., BPI v. AEC, 502 F.2d 424 (D.C.
Cir. 1974).3_/ We showed, further, that there is no support for the proposition that vague contentions may be admitted to a proceeding so long as "one good s
contention" has been proffered for purposes of intervention. Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973); Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371 (1973); see also discussion thereof in Staff Objections at 5.
Thus, the Staff is firmly convinced that the Board's admission of vague contentions is erroneous. This is not an error which may appropriately abide the conclusion of this proceeding a year or more from now, for the Board's holding not only completely reshapes this proceeding in a manner not contemplated by the regulations, but could be used to
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On April 16, 1982, the Commission decided to review the Appeal Board's decision in Tennessee Valley Authority (Browns Ferry Nuclear Power Plant, Units 1, 2 and 3), ALAB-664 (January 6,1982),
which ruled that the Licensing Board incorrectly dismissed intervenor's petition, without considering the Staff's views as expected in the environmental assessment and intervenor comments thereon, on the " independent utility" of Applicant's plan to store onsite low-level radioactive waste for a five-year period.
Specifically, the Commission will decide the following issue:
"Whether the Appeal Board correctly determined that a ruling on the petition for intervention in this proceeding must await the filing by the NRC Staff of its environmental assessment and the opportunity for petitioners and TVA to comment on the assessment."
(Browns Ferry Nuclear Plant, Units 1, 2 Tennessee Vally Authority (Slip. op. at 2).
and 3), (April 16,1982)
We note particularly the Additional Conments of Conmissioners Ahearne and Roberts, that "we tend to agree that the Appeal Board majority ' confuses the obligations of the NRC with the obligations of prospective intervenors'..." Thus, the Commission is likely to rule in the near future on whether it is proper to defer rulings on the adequacy of contentions until the receipt of Staff analyses.
% upset the basic ground rules established by the Commission through regulation and case law for the conduct of its licensing proceedings. Without the specificity requirement for contentions in Section 2.714, it cannot be assured "at the pleading stage that the hearing process is not improperly invoked." Philadelphia Electric Company, et al. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 21 (1974).
As stated by the Applicants:
The practical effect is that Applicants and Staff are left with amorphous subjects upon which the burden now shifts to them to ferret out the substance.
Applicants' Motion at 29.
Further, admission of contentions, even conditionally, subjects these proceedings to unwarranted discovery and consequent delay. Again, as Applicants have explained:
[T]he practical effect of the Board's ruling with respect to the discovery will be to delay this proceeding, a result contrary to the thrust of the Commission's " Statement of Policy on Conduct of Licensing Proceedings" (13 NRC 452).
Under the Board's ruling, discovery is to commence immediately.
Had Intervenors been made to specify the bases for their concerns, then their discovery requests could be properly framed and, more importantly, Applicants' responses could be directed to those concerns.
As it now stands, however, Intervenors are likely to submit broadly-framed discovery requests, not limited in any respect to matters relevant to the factual bases for their contentions, since they were not made to specify those bases.
Applicant's Motion at 40-41.
Prompt decision as to the Board's erroneous rulings is necessary to prevent detriment to the public interest or unusual delay or expense.
One need reach no further for an explanation of the public interest which may otherwise by frustrated than the language of the Appeal Board in the Prairie Island case:
. Section 2.714(a) reflects the administrative conclusion that the effectuation of the purposes of the Atomic Energy Act requires that the request for hearing (in the form of a petition for intervention) include an identification of the contentions which the petitioner seeks to have litigated in the matter.
To our mind, there is nothing unreasonable about this conclusion.
It certainly would not further -- but indeed would impede -- the orderly carrying out of the adjudicatory process to accord an individual the status of a party to a proceeding in the absence of any indication that he seeks to raise concrete issues which are appropriate for adjudication in this proceeding.
Prairie Island, supra, 6 AEC at 191-192. (Emphasis added). Despite the Appeal Board's reluctance to intercede at the pre-hearing stages of a proceeding, where a licensing board order "is central to charting the future course of the proceeding and affects whether all, or nearly all, of the large number of prospective intervenors and their contentions are dealt with fairly," the Appeal Board has found licensing board rulings to affect "the basic structure of the proceeding in a pervasive or unusual manner." Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 522 and n.5 (1979).
In the Staff's view this Board's order admitting concededly vague contentions contrary to the regulations substantially broadens the scope of this proceeding and its attendant burdens and " charts a future course of the proceeding" not contemplated by the regulations.
It thus affects the basic structure of the proceeding in a pervasive and unusual manner.
The extensive discovery made necessary by the Board's ruling, the probable delay entailed, and the burdens which are a necessary consequence of the ruling cannnot, once incurred, be alleviated by an appeal at the conclusion of the proceeding.
Accordingly, the l
Board's rulings admitting 17 vague contentions subject to later specification following the availability of Staff analyses and Applicant documentation, or discovery, is appropriate for review now.
I
. 2.
Advance Waiver of the Section 2.714(a) Late-Filing Requirements is Contrary to Law, and Requires Prompt Review Under Applicable Criteria Applicants also object to the Board's rulings insofar as they would waive the criteria for late-filed contentions in Section 2.714(a) where new or revised contentions are submitted following the availability of S+.aff and Applicant documents, or when rejected contentions are revised and refiled based on "new information or analysis becoming available".
Applicants' Motion at 3, 4-5, 29-30.
As discussed previously (Staff Objections at 11-15), the Staff agrees with Applicants' objections to these Board rulings.
flot only are the provisions of Section 2.714(a) clear on their face, but the Commission has, on several occasions, restated its position that the late-filing criteria are to be applied to new or amended contentions based upon pr1viously unavailable information.
See Koshkonong, supra, 8 AEC at 929; Indiana and Michigan Electric Company (Donald C. Cook fluclear Plant, Units 1 and 2), CLI-72-25, 5 AEC 13,14 (1972); Statement of Consideration adopting revisions to Section 2.714(a) (43 Fed. Reg. 17798, April 26,1978). As was the case with the Board's specificity rulings, the waiver of the late-filing requirements directly challenges long-standing Commission law and policy on the subject, and constitutes error which, if not promptly reversed, will cause substantial detriment to the public interest and establish an undesirable precedent.
The overriding importance of the Board's ruling comes from the consequence that, if a party is not required to show why it could not have raised the contention at the intervention stage, the issues in a proceeding may be continually and substantially expanded
. simplyuponanassertionthat"newinformation"hasbecomeavailable.O The issues in a case would not be completely defined until the proceeding concludes. -Such a result would disrupt the Commission's regulatory processes and be contrary to the substantial interest of the public in "the reasonably prompt and orderly resolution of administrative proceedings and the applicant's legal right to have an application ruled upon within a reasonable time. Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), LBP-73-31, 6 AEC 717 at 719-720 (1973). The waiver of late-filing requirements allowing indiscriminate expansion and addition of issues at any stage of the proceeding based on nothing more than a claim that new information has become available indeed will effect the basic structure of the proceeding in a pervasive and unusual manner never contemplated by the regulations.
Consideration of such a waiver of the Commission's late-filing requirements only at the end of the proceeding will not suffice since, at that point, unwarranted expansion of issues will have already taken place and the late-filed issues will have been litigated.
Should the Licensing Board sustain its waiver of the late-filing requirements of 10 CFR 9 2.714 in the face of Staff and Applicants' objections, certification of such action is appropriate.
3.
Discretionary Interlocutory Review of a Ruling to Grant Access to Security Plans Has Been Permitted Applicants have requested certification of the Board's ruling related to Palmetto Alliance's Contention 23 alleging in general terms
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While a showing of new information may well go a long way toward meeting the " good cause" requirement of Section 2.714(a) it is nevertheless but one of five criteria to be weighed and balanced in reaching a determination on whether to admit late-filed contentions.
. the inadequacy of Applicants' security plan for Catawba.
Applicants' objections focus primarily upon the Licensing Board's failure to apply the access guidance set out in Dacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398 (1977), insofar as that guidance provides that an intervenor is entitled to see only a " sanitized" version of those portions of a security plan which intervenor can demonstrate are both relevant and necessary to the litigation of its contention. Applicants argue persuasively that the Appeal Board's logic only makes sense where a reasonably specific contention is assumed to have been pleaded, not merely "a formal interest." Applicants' Motion at 44-45.
Thus, Applicants' objection also raises the question of the threshold of specificity required for contentions on security plan issues, a question not addressed in the Diablo Canyon Appeal Board decision and one which the Licensing Board here seems to have resolved by adopting an " expression of formal interest" standard. March 5,1982 Order at 38.
It does not appear, however, that the Board has in fact admitted Palmetto Alliance's security contention or ruled on the granting of access.
See Applicants' Motion at 46; fiarch 5,1982 Order at 38.
The Board stated it "could at this juncture order the Applicant to grant access to that plan,"
and that it "could now find that disclosure of the plans is 'necessary to a proper decision in the proceeding.'
10 CFR 2.744(e), as recently amended, 46 Fed. Reg. 51718, 51723."
Ibid. However, the Board did not actually do so, and did not actually admit Palmetto Contention 23. There being no ruling, Applicants' request must be interpreted as a request for certification of the issue raised--whether the Baard is authorized to grant access to the security plan based upon a showing only that
. " Palmetto has expressed' a< formal interest in the Catawba plan" and without requiring either a reasonably specific contention or that Palmetto specify which portions of a " sanitized plan" are relevant to its contentions. March 5,1982 Order at 38.
The Appeal Board has considered the appropriateness of certifying a licensing board order denying discovery of applicant's security plan in connection with the Diablo Canyon security plan matter, discussed above.
There, the Appeal Board ruled that "the extent of an applicant's obligation to disclose all or part of a security plan for a nuclear power plant to an intervenor in a licensing proceeding raises substantial questions affecting the public interest which merit our examination at this juncture [under its certification authority]," citing Appendix A to 10 CFR Part 2, Section V(f)(4).
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Unit No. I and 2), unpublished Appeal Board order, (November 3,1976).
Also instructive with regard to both directed certification and the protection which may be accorded commercial information generally is Kansas Gas and Electric Company (Wolf Creek Nuclear Generating Station, Unit No.1), ALAB-327, 3 NRC 408, 413 (1976), wherein the Appeal Bord ruled that "[u]nlike most interlocutory discovery orders, the one here-involved
[ denying protective order for a fuel supply contract] must be reviewed now or not at all...the underlying issue appears to be of enough importance, and the affected interests of the parties sufficiently great, that the Licensing Board's ruling should receive appellate review."
l i Thus, the case' law appears to establish not only that the public interest in protection of security plans is sufficiently great to warrant interlocutory review,- but that the release of applicant security plans threatens immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal.
As a result, the Staff believes < certification of the issue whether a licensing board may grant access to a security plan based upon a mere showing of a " formal interest" in security matters, and without requiring either reasonable specificity under Section 2.714(b) or specification of what portions of the security plan are relevant to or necessary for litigation of intervenor's contention, is appropriate and should be granted.E/
4.
The Board Should Dismiss Palmetto Contentions 24 and 25, as Barred by the Commission's March 31, 1982 Final Rule Applicant has also objected to, or alternatively requested certification of, the Board's admission of Palmetto Alliance contentions 24 and 25 on the ground that the issues raised therein are within the scope of the Commission's recent amendments eliminating consideration of financial qualifications issues from licensing proceedings where the
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On April 13, 1982, the Board issued an Order which, among other things, directed Palmetto Alliance to answer questions as to steps it has taken or intends to take to satisfy the protection requirements set out in the Diablo Canyon ruling.
The Board directed that answers be served by April 30, 1982, or that Palmetto Alliance Contention 23 be dismissed with prejudice.
Should Palmetto Alliance fail to meet this requirement satisfactorily and the Board dismiss Palmetto's security contention, there may be no need for certification of this matter.
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. applicant is an electric utility seeking a facility operating license.
47 Fed. Reg. 13750, March 31, 1982. The Staff supports Applicants' effective motion for summary dismissal of the two contentions.
In the event of a denial of such motion, the Staff would support certification of this matter to the Appeal Board.
On March 31, 1982, the Comission published in the Federal Register an amendment to the regulations providing that
"...the issue of financial qualifications shall not be considered by the presiding officer in an operating license hearing if the applicant is an electric utility seeking a license to operate a production or utilization facility of the type described in 5 50.21(b) or % 50.22;"
10 CFR Section 2.104(c)(4); see also, Appendix A of Part 2,Section VIII(b)(4), as revised, 47 Fed. Reg.13750, at 13753-4 (March 31,1982).
New provisions defining " electric utility" have been set forth in Section 2.4, as well as in Section 50.2(x), which provide:
" Electric utility" means any entity that generates or distributes electricity and which recovers the costs of this electricity, either directly or indirectly, through rates established by the entity itself or by a separate regulatory authority.
Investor-owned utilities, including generation or distribution subsidiaries, public utility districts, municipalities, rural electric cooperatives, and state and federal agencies, including associations of any of the foregoing, are included within the meaning of " electric utility."
47 Fed. Reg. at 13753-4.
As noted in the Statenent of Considerations, the amendments apply to consideration of decommissioning funding as well:
"... the Commission has elected to... eliminate the financial qualifications review of electric utilities entirely at the CP and OL stages, including elimination of any consideration of decommissioning funding....
-. Id. at 13571.
Noting that complete elimination is warranted pending issuance of a Final Rule on decommissioning the Commission stated:
...Moreover, if decommissioning financing issues were continued to be allowed in current licensing proceedings, two undesirable effects may result.
First, there would be an increased chance that findings in such cases might contradict evolving Commission policy in this area. Second, one positive gain from the final rule would be countered, in that there could be expected to be little, if any, reduction in the contentions before the licensing boards on financial qualifications issues, thereby not significantly reducing the time and effort devoted to those issues.
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Palmetto Alliance Contention 24 asserts that the municipal power authorities and rural electrical cooperatives which have purchased major portions of the Catawba facility lack the financial resources "to safely operate, maintain and decommission the plant."
Similarly, Palmetto Alliance Contention 25 asserts that " Applicants have made no plans for ensuring that funds will be available to safely decommission Catawba."
These contentions are now barred by the Commission's Final Rule.
Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC (1982).
Inasmuch as Palmetto Alliance contentions 24 and 25 fall squarely within the prohibitions of the amendments to Parts 2 and 50, dismissal of these contentions is warranted.
Should the Licensing Board sustain its ruling that these contentions are appropriate for litigation in this proceeding, the Staff would support certification of such a ruling to the Appeal Board.
Under the standards
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For the provisions eliminating consideration of financial qualifications of electric utilities in applications for and review of facility operating licenses, see, 10 CFR Sections 50.33(f), 50.40, and 50.53.
Id. at 13754-5.
. discussed above, failure to remove these contentions from this proceeding will require time-consuming and costly litigation of the financial status not only of Duke, but of the municipal power authorities and rural electric cooperatives which have or will become co-owners of Catawba, despite clear direction to the contrary in Commission rules.
The impact on the structure of this proceeding would be serious, pervasive, and unusual. Moreover, these impacts would be incurred now, prior to the completion of this adjudicatory proceeding, and could not be alleviated by later appeal of this ruling.
5.
The Board's Ruling Requiring Service of Staff and Applicant Documents Does Not Warrant Interlocutory Review Finally, Applicants object to, and alternatively request j
i certification of, the Board ruling that "Intervenors be served with I
copies of all relevant documents generated by the Applicants and the Staff in connection with this operating license proceeding." March 5, 1982 Order at 39. Applicants object to this ruling on the basis of their assertions that the regulations require only that Applicants serve Intervenors with copies of the legal documents, and appropriate attachments, filed with the Licensing Board in this proceeding, and that Applicants need only produce, and permit inspection and copying of, designated documents pursuant to discovery.
Applicants' Motion at 51.
They argue further that provision of all " relevant" documents at no cost is inconsistent with Section 502 of the Energy and Water Development Appropriations Act for FY 1981, Pub. L.96-367, which provides that r
. FY 1981 funds not "be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings...."2/
Applicants also quote from a December 3,1980 legal opinion of the Comptroller General stating that Section 502 prohibits the NRC from paying for "' litigation expenses that would inevitably have been paid by the non-applicant party. '
46 Fed. Reg. 13681 (1981)."
Id. at 53.
The Staff opposes Applicants' Motion insofar as it requests certification of this particular Board ruling.
First, Applicants do not appear to acknowledge the authority granted to a presiding officer under 10 CFR Section 2.718, and that the actions complained of may be necessary to " regulate the course of the hearing and the conduct of the participants" in order to assure a fair hearing and to avoid delay. This certainly is the import of the Appeal Board's decision in Carolina Power and Light Company (Shearon 1
Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-184, 7 AEC 229, 237 (1974).
In that case, in the midst of an extended delay in an ongoing construction permit proceeding, applicant requested an exemption under 10 CFR 6 50.12 "to do certain site preparation and 7/
A similar provision is contained in the Appropriations Act for FY 1982, Pub. L. 97-88.
. related activities prior to the issuance of construction permits."' Id_.
at 230. However, no notice of the request for exemption was given to intervenor. The Appeal Board stated:
In short, the resolution of the notice issue does not hinge upon a determination of either the validity or the thrust of Section 50.12.
Rather, we think it turns upon whether considerations of fairness--quite possibly rising to the dignity of procedural due process--require that, once a reactor has reached.the point of an adjudicatory licensing proceeding, the parties to the proceeding are entitled to prompt notice of any significant development within the regulatory framework (such as the filing of an exemption application) which has an incontrovertible bearing upon the subject matter of the proceeding. To us, the answer manifestly is in the affirmative.
Id. at 237, citing, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Station), ALAB-179, 7 AEC 159, 183 (1974).
In Vermont Yankee, the Appeal Board held that intervenors' right to insist on personal service of all correspondence between the applicant and Staff relating to the exercise by the Staff of its ongoing regulatory responsibility remained in existence not just until the conclusion of administrative proceedings but throughout the period during which the Board's or the Commission's decision was subject to judicial review.
The Staff there argued, as Applicants do here, that no rule or regulation required such service to be continued.
The Appeal Board replied:
We believe that the questions of continued service upon the parties and continued maintenance of the document room are governed by different considerations. The parties' entitlement to personal service [of all applicant-staff correspondence relating to the facility] derives from their participation in an ongoing administrative proceeding. That right is different in nature from the right, if any, of the public generally to access to relevant documents in the vicinity of the plant.
W
. Id. Thus, we do not believe it inappropriate for the Licensing Board to require service of all relevant documents generated by the Staff or Applicant in this proceeding in order to assure that intervenors have adequate notice of developments in the proceeding and that there is no procedural unfairness.
In view of this, the Board's requirement of document service does not appear to constitute subsidization of intervention.
In any event, there is nothing in the Appropriations Act or in the Comptroller General opinion of December 3,1980,'which prohibits such continued service. The Comptroller General opinion and the Appropriation Act deal only with the use of federal funds, and could in no event apply to a requirement that Applicant serve documents.
In view of the lack of any statutory or regulatory prohibition against the document service ordered by the Board, and in view of the notice and fairness considerations which it furthers, the Staff perceives no detriment to the public interest, or unusual expense to be presented by the Board's ruling which would require prompt appellate review.
Similarly, there is no serious impact on applicant which could not be alleviated upon appeal, or substantial impact on the structure of this proceeding, which results from the Board's rulings.
As a result, the Staff believes Applicants have failed to state a basis for interlocutory review of the Licensing Board's ruling on document service and their request for certification should be denied, i
, III.
CONCLUSION In summary, the Staff supports certification to the Appeal Board of the following-rulings, should the Licensing Board overrule the objections to such rulings:
(1) Admission of 11 contentions conceded by the Licensing Board not to meet Section 2.714(b) specificity requirements, subject to later specification promptly after pertinent Staff analyses or Applicant documentation become available.
(2) Admission of 6 concededly vague contentions, subject to meeting the Section 2.714(b) specificity requirement upon the completion of discovery.
(3) Waiver of the late-filing criteria of Section 2.714(a) with respect to new or revised contentions submitted promptly after Staff analyses, Applicant documentation or discovery is available.
(4) Admission'of two contentions on financ.ial qualifications of Applicants.
1 The Staff also supports the certification of the following issue to the Appeal Board:
Whether the Licensing Board is authorized to grant access to Applicants' security plan for Catawba, based merely upon a showing of " formal interest" and without requiring either a reasonably specific security plan contention, or that Palmetto Alliance specify which portions of the plan are relevant to, and necessary for, litigation of its contention.
As argued in detail above, the Staff believes these matters involve considerations which, if not decided promptly, will cause detriment to the public interest, adversely affect the basic structure of this proceeding in a pervasive or unusual manner, or cause serious and irreparable impact which can not be alleviated by later appeal.
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..The Staff opposes certification of the Board's ruling requiring service upon Intervenors of copies of all Staff and Applicant correspondence
. relevant to this proceeding, on the ground that such service is consistent with principles of notice and procedural fairness, is clearly within the regulations and case precedent, is contrary to no statute, regulation, or controlling opinion, and, even if erroneous, would not result in an impact on Applicants which could not be alleviated by later appeal.
Res ctfully submitted,
//
C:
,+'
M/'
ilV t's George /E. J h'nson 9
Counsdl for NRC Staff Dated at Bethesda, Maryland this 20th day of April,41982:
1
7.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
'In the Matter of DUKE POWER COMPANY, ET-AL.
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Docket Nos. 50-413 50-414 (Catawba Nuclear Station, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copics of "NRC STAFF'S RESPONSE TO APPLICANTS' MOTION FOR CERTIFICATION OF CERTAIN RULINGS IN LICENSING BOARD'S PREHEARING CONFERENCE ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 20th day of April, 1982: c;..
- James L. Kelley, Chairman Michael McGarry, III, Esq.
Atomic Safety and Licensing Board Panel Debevoise and Liberman U.S. Nuclear Regulatory Commission 1200 17th Street, N.W.
Washington, D. C.
20555 Washington, D. C.
20036 Ur. Dixon Callihan Robert Guild, Esq.
Union Carbide Corporation Attorney for the Palmetto Alliance P.O. Box Y 314 Pall Mall Oak Ridge, Tennessee 37830 Columbia, South Carolina 29201 Dr. Richard F. Foster Palmetto Alliance P.O. Box 4263 2135h Devine Street Sunriver, Oregon 97701 Columbia, South Carolina 29205 Richard P. Wilson, Esq.
- Atomic Safety & Licensing Board Panel Assistant Attorney General U.S. Nuclear Regualtory Commission P.O. "ox 11549 Washington, D. C.
20555 Columbia, South-Carolina 29211
- Docket and Service Section
- Atomic Safety & Licensing Appeal Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regualtory Commission Washington, D. C.
20555 Ndshington, D. C.
20555 9
i Donald R. Belk Safe Eneray Alliance 2.,.i nce 2213 East Seventh Street
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r-Charlotte,-North Carolina 28204 Henry' Presler,' Chairmant c
.o Charlotte-Mecklenburg Environmental' Coalition
~ 942 Henley Place Charlotte, North Carolina _28207___ _..
Jesse L. Riley Carolina Environmental Study Group 854 Henley Place Charlotte, North Carolina 28207 William L. Porter, Esq.
Albert V. Carr, Esq.
Ellen T. Ruff, Esq.
Duke Power Company.
P. O. Box 33189,.
,.s Charlotte, NC ~ 28242
[A ~
A
' bl George E. Joiinson Counsel for NRC Staff e.
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