ML20054K629
| ML20054K629 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 06/30/1982 |
| From: | Callihan A, Foster R, Joseph Kelly Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 8207020393 | |
| Download: ML20054K629 (16) | |
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UNITED STATES OF AMERICA . , ,
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NUCLEAR REGULATORY COMMISSION sfe!/Y ATOMIC SAFETY AND LICENSING BOARD BEFORE ADMINISTRATIVE JUDGES James L. Kelley, Chairman 1 Dr. A. Dixon Callihan Dr. Richard F. Foster
)
In the Matter of ) Docket Nos. 50-413 <
) 50-414 DUKE POWER COMPANY, ET AL. )
)
(Catawba Nuclear Station, )
Units 1 and 2) ) June 30, 1982
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MEMORANDUM AND ORDER (Overruling Certain Objections to Prehearing Conference Order and Referring Certain Questions to the Appeal Board)
Introduction In our Order of March 5, 1982, the Board ruled on some fifty contentions that were the subject of the initial prehearing conference. .
Pursuant to 10 CFR 2.751a, the Applicants, the Staff and Intervenors'
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Palmetto Alliance (Palmetto) and Carolina Environmental Study Group (CESG) have filed objections seeking reconsideration of various of these rulings, 1
or, in the alternative, referral of some of them to the Appeal Board. The Applicants and the Staff raise multiple and similar objections concerning certain Board rulings on specificity of contentions. We deal with those i
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objections in this Order. We will address the Applicants' other objections, the objections of the Intervenors, and certain related questions in a separate Order to be issued shortly.
A. Specificity of Contentions and Available Information.
- 1. Introduction. The Applicants and Staff reassert their arguments that all contentions must be put forward with " reasonable specificity" before the initial prehearing conference de, spite the fact that information necessary for the formulation of intelligent contentions in some areas is not yet available. They further argue that when new documentary information does become available, such as in emergency plans, any contentions based upon it must then be considered for admission under the multiple criteria for late contentions in 10 CFR 2.714(a)(1).
We rejected these arguments in our March 5 Order. Upon consideration of the objections from the Applicants and the Staff, we adhere to our prior rulings on this subject. We have already stated our reasons for those rulings in some detail and believe that that discussion adequately covers many of the arguments now raised on reconsideration. We will address only those points which warrant some further comment.
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- 2. Applicants and Staff Objections.
(a) Case Law. We noted in our March 5 Order that certain cases cited by the Applicants and Staff, particularly Koshkonong and BPI v.
AEC, were not " focused on the situation that concerns use here." Order at
- 8. We then pointed to several other cases which we saw as broadly illustrative of a Licensing Board's authority to admit a vague contention
4 conditionally, subject to later specification when the necessary documentation becomes available.
Both the Applicants and the Staff have responded with detailed analyses of these and some related cases in efforts to demonstrate the correctness of their position. Applicants' Motion at 12-28; Staff Objections at 6-10. It saems safe to assume that every NRC adjudicatory decision having even a remote bearing on these matters has now been brought to our attention. These analyses only serve to reinforce our conclusion that the case law provides no clear answers to these questions. About all one can say with confidence is that neither the Commission nor the Appeal Board has ever taken a clearly articulated position on them. -
(b) Filing Contentions on Non-existent Emergency Plans. In our Order of March 5, we said that the unreasonableness of the Applicants' and Staff's position was well illustrated in the emergency planning area, because the offsite emergency plans for Catawba are not yet available. We went on to point out some practical difficulties involved in attacking a plan that does not exist. Order at 8-10. The Applicants nevertheless argue that "more than enough pertinent information is available to allow s
Intervenors to state their concerns in their contentions." Applicants' Motion at 22. They seek to demonstrate that proposition by several ex amples.
The Applicants point first to the'" Commission's regulations and regulatory guides which serve to inform Intervenors of the requirements
which the plans must meet." But these tell an Intervenor nothing about how a particular local governmental entity will choose among alternative approachestotheabstractrequirements.1! While the applicable Staff document, the NUREG-0654 Criteria for Preparation of Radiological Emergency Plans, contains more detailed guidance, it still leaves much to the choice of local officiais; moreover, emergency planning officials can depart from Staff documents because they do not have the force of law.
Matter of Southern California Edison Co. (San Onofre Station), Initial Decision, slip op. at 33.
The Appl hants point next to the " generic State plans for both North and South Carolina" which apparently are available and which "will comprise an important part of the offsite emergency plan." By its very nature, however, emergency planning requires a substantial degree of involvement of local officials. See Matter of Southern California Edison Co. (San Onofre Station), Initial Decision. Therefore, the availability of the State plans is no substitute for the local plans. {
Finally, the Applicants point to the existing emergency plans for Duke's McGuire f acility and for the South Carolina Electric & Gas Company's Summer facility. Just why these emergency plans for other facilities would
-1/ The basic emergency planning regulations are drafted in very general terms. See 10 CFR 50.47. The only specific requirements are that the plume exposure and ingestion pathway emergency planning zones be "about" 10 to 50 miles in radius. Id., subsection (c)(2).
be helpful to the Catawba Intervenors we are not told.2_/ It is true that all three facilities are in the same general part of the country and that certain relevant f actors, such as similiarity of terrain, might suggest similar approaches to some planning problems. It also seems reasonable to assume that local planning officials it. m emergency planning zone around Catawba would look for models in the plans already developed for nearby reactors like McGuire and Summer.
These considerations, however, do not give a Catawba Intervenor the kind of detailed information he needs concerning the still-to-be-draf ted Catawba plans. Emergency plans are largely site-specific, focusing on the 10-mile plume emergency planning zone around the reactor. McGuire is about '
twenty-seven miles North North East of Catawba, and Catawba is about sixty milesNorthNorthEastofSummer.$/ Thus, emergency planning
-2/ There may be some confusion in the Applicants' minds about the basic emergency planning issue involved at the operating license stage. They say that the Intervenors should be required to specify "why they believe that adequate emergency plans for Catawba cannot be prepared." (Emphasis added) Applicants' Motion at 24. Ensuring that effective emergency planning is possible, without looking at l
planning details, is the thrust of the construction permit inquiry.
See Part 50, Appendix E, Part II. But at the operating license stage -
, it must be shown that the details of particular plans meet the Commission's planning standards. Id., Part IV; 10 CFR 50.47(b). The only way to make that determinatioii or to raise intelligent contentions that those standards are not met, is to study the plans themselves.
-3/ These distances are based upon the operating license environmental i report site descriptions for the three facilities and upon the Regional Station Map, Figure 2.1.1-1, of the Catawba ER.
zones of "about 10 miles" (as prescribed by NRC rule) for these three facilities would not overlap; they would cover three entirely different areas. This means that each plan must be designed for different nearby populations, roadways, emergency f acilities, and the like. For example, the largest community in the 10-mile zone around McGuire is Mt. Holly, North Carolina, population approximately 5000. The largest community in the 10-mile zone around Summer is Chapin, South Carolina, population 342.
By contrast, the 10-mile zone around Catawba includes Rock Hill, South Carolina, population approximately 35,000. One of the most important
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problems that emergency planning officials in Rock Hill and York County will confront will be to devise a workable plan for the safe, rapid and complete evacuation of Rock Hill in the. event of a serious nuclear accident atCatawba.S. It seems unlikely that the McGuire or Summer emergency plans would be of any relevance to that part of Catawba emergency pl anning.
If any further proof were needed that the Applicants' position is unsound, this portion of the Applicants' motion supplies it. The Staff _
does not even attempt to explain how an Intervenor can effectively state contentions about emergency plans he has never seen.
-4/ 10 CFR 50.47(b)(10) requires a finding that a range of protective actions have been developed for the plume exposure pathway EPZ for emergency workers and the public. The two most important protective actions are evacuation and sheltering. See Matter of Southern California Edison Co. (San Onofre Station), Initial Decision at 99-130.
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L (c) The 1978 Amendments to the Rule. The Applicants and the Staff have brought to our attention a fragment of the " legislative history" of the pertinent rule which appears to favor their position and of which we were previously unaware. Prior to 1978, there was no explicit rule concerning contentions filed after the first prehearing conference. To the extent guidance existed, it came from case law. j:f. j Matter of Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant),1 NRC 273 (1975)
(concerning a late intervention petition). In 1978, a unanimous Commission adopted a number of changes in the rules of practice. Included in this package of amendments was one to require the filing of a " supplement" of contentions fifteen days before the first prehearing conference, and also to allow additional time for filing the supplement upon a balancing of the five factors applicable to late intervention petitions. 10 CFR 2.714(b).
The " Supplementary Information" accompanying adoption of these amendments stated in relevant part as follows:
There is no provision in 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 j amended because of new information which comes to light after petitioners have been admitted, such as information in the Commission Staff's safety evaluation or environmental impact statements. -
The Commission believes that 2.714 should be amended in the interest I
of clarifying the requirements in regard to ... amending, expanding, and deleting contentions. ... Section 2.714 is revised to specifically provide that late filed contentions (a contention or amended contention which is filed after 15. days prior to the special prehearing conference, or where there is no special prehearing conference, which is filed af ter 15 days prior to the first prehearing conference) will be considered for admission under the clarified criteria set forth in subparagraph (a)(1). 43 Fed. Reg. 17798, 17799.
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These statements seem to weigh against our conclusion that contentions based on new information, if raised promptly after the information becomes available and otherwise satisfactory, are not to be tested against the criteria for late petitions and contentions. However, we do not believe that they are entitled to much weight in the circumstances of this case.
These statements do not address significant aspects and ramifications of the overall problem we are considering. For example, had the interpretations now urged by the Applicants and the Staff mirrored the Commission's intention, a candid statement of " Supplementary Information" should have included an explicit acknowledgment that the proponent of a
" late" contention would be' penalized for delay that is beyond his control.
It might also have expressed the only apparent supporting rationale: in order to expedite proceedings, Intervenors must file their contentions before some relevant documents are written. But in the absence of such explanatory glosses in the Supplementary Information, that document does not reflect a clear intention by the Commission to adopt the Staff's and Applicants' interpretations of the rule. Indeed it is scarcely conceivable to us that a unanimous Nuclear Regulatory Commission might intentionally adopt a rule having such Draconian effects.
The circumstances surrounding adoption of this amendment reinforce the l
conclusion that the Commission probably did not focus on the issues now l before us. Proposed rule changes and ac'ompanying c statements of i Supplementary Information are drafted by the Staff and sent to the l
Commission for review and approval. The amendment in question was one of a number of proposed minor technical and clarifying changes adopted in the l
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rules of practice in 1978. The Commission did not hold a formal meeting to discuss these amendments; they were approved without discussion at a Commission affirmation session.5/ The language of new section 2.714(b) and the quoted language from the Supplementary Information section were approved exactly as the Staff had written them. These circumstances show that the snendment in question was not controversial, and was probably not the subject of close Commission scrutiny. For if the Commission had been made aware of the implications that the Applicants and the Staff now find in the rule, there would at least have been extended discussion of those implications and a clearer expression of the Commission's intent. .
(d) Significance of the Five Criteria for Late Filings.
Footnote 6 of the March 5 Order said that --
Section 2.714(a) erects five separate hurdles to "nontimely" contentions, only one of which (good cause) would presumably be surmounted by a showing of new information. In the main, these l
criteria are inappropriate for application to a contention that is i " late" for reasons wholly beyond the intervenor's control. For example, he last criterion concerns the extent to which the contention will " broaden the issues or delay the proceeding." An l issue based on new information will almost necessarily broaden the l issues and it may well delay the proceeding. But the responsibility for those effects must be borne by the applicant or the Staff for ~
producing a " late" informational document.
5/ Advice provided by the Office of the Secretary.
Ironically, the brief Staff paper transmitting the final rule to the l Commission for approval (SECY-78-74) said that --
The amendments are intended to facilitate public participation in the NRC ... hearing process.
The Applicants' and Staff's interpretation of the rule would not l
! "f acilitate" public participation in any sense. Quite the contrary.
l Their interpretation raises arbitrary obstacles to public partic ipat ion.
The Staff argues against our " apparent presumption that application of the late-filing provisions is unfair." Staff Objections at 12. The thrust of the following Staff discussion is that those provisions should not raise significant barriers to " late" contentions, particularly those based on new information. Citing two cases from Atomic Energy Commission days, the Staff tells us that "the Commission has interpreted this provision rather liberally where new matters have arisen after the initial pleadings."
It seems to us that the Staff is trying to have it both ways. On the one hand, they imply that the factors in the rule other than good cause will not in practice bar a late but " good" contention based on new information. Nevertheless, they insist that each of the five factors must be " balanced," that good cause is "only one factor to be considered." M.
at 13. If the factors other than good cause are not to be virtually read out of the rule, they represent, on their face at least, significant independent grounds for disallowing a contention. Some of the cases applying these criteria in detail tend to bear that out. See Matter of Nuclear Fuel Services, supra, at 275-276; South Carolina Electric and Gas C_o. (Summer Station), 13 NRC 881, 885-890 (1981); Cincinnati Gas and _
Electric Co. (Zimmer Station),10 NRC 213, 214-217 (1979).O We
-6/ It is difficult to assess the impact of the five criteria in practice because most Licensing Board rulings on late contentions have probably been in unpublished orders.
More recently, the Staff seems to have changed its position on this point. In its Response to Supplemental Statements of Contention dated June 22, 1982 in Carolina Power & Light Co. (Shearon Harris Plant) at p. 10, the Staff states its agreement with the Shearon Harris Applicants that --
(Continued on following page)
therefore adhere to the view that these factors are not applicable to contentions filed promptly af ter the subject documents first become available.
(e) Other Points. Several other points on this subject in the Applicants' or Staff's papers warrant brief comment.
Contrary to the Staff's statements, our rulings on s'pecificity do not ,
mean that "once the one contention necessary for intervention has been judged adequate, other nonspecific contentions may be admitted." Staff Objections at 5. This is demonstrated by our rulings against Palmetto l Contention 20 and CESG Contentions 20 and 21, which we excluded for lack of specificity and'because existing documents (the FSAR or ER) did provide a sufficient basis for framing a specific contention. The "one good contention" rule and our specificity rulings are unrelated.
In admitting certain somewhat vague contentions subject to the possibility that they might be made more specific following discovery, we applied "less stringent standards of specificity than we will apply at the 6/ (Continued from previous page) new information in documents not currently available will constitute good cause for the filing of new contentions and, in such circumstances, that factor (i) will prevail over a balancing, as the regulation provides, with factors (ii) to (v) of 10 C.F.R. 2.714( a)(1) .
In other words, " late" contentions based on new information are to be automatically excused of their lateness. The Staff's.Shearon Harris position exhibits a sensitivity to the equities of " late" contentions based on new information and a commendable new willingness to subordinate the literal language of the regulation to those equities. The only practical difference between the Staff's newly discovered position in Shearon Harris and the Board's position here is the availability of discovery, a matter we discuss at 12-13. If the Staff wishes to conform its position here to its Shearon Harris position, it should advise the Appeal Board.
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final prehearing conference." Order at 13. The Staff is simply not correct in referring to "the Board's admissions of contentions it concedes do not meet the 10 CFR 2.714(b) specificity standard...." The question the Staff's statement begs is whether the same standard of specificity must apply under 2.714(b) at all stages of the proceeding. We think not, and we believe that a relatively lenient standard is appropriate at least for some contentions at this early stage of the proceedings. See Southern California Edison Co. (San Onofre Station), Partial Initial Decision at 221, n.94 (1982). How else but through discovery is an intervenor going to find out, for example, about possible defects in equipment or lapses in .
quality assuran'ce at a nuclear power plant? Such things will not be reported in the FSAR.
It is true that nonspecific contentions tind to exacerbate discovery problems, particularly by increasing the volume of interrogatories. But this is not the f ault of the Intervenors for fi ing vague contentions. It is the fault of the other parties, or the system, for forcing Intervenors to plead without the necessary information. In any event, the discovery problems are manageable. Notwithstanding some vague contentions, the Board has devices to control discovery within reasonable bounds.
The Staff's objections contain no discussion of some of the f actors we consider important and which we discussed at some length in our March 5 Order. The Staff's objections consist in the main of unduly literal interpretations of the rules and detailed discussion of past cases that provide no clear answers for this case. On important questions like those presented here, where the literal language of the rules and the decided
cases are not dispositive, the analysis should go further. What are the practical implications of requiring an Intervenor to plead contentions on a document that does not exist? How does such a requirement square with the Atomic Energy Act and NEPA? Is such a requirement f air to all interested parties? The Staff's papers are silent on these questions.
We note in conclusion that there should be an alternative approach to the problem of unavailable information when contentions are otherwise due before the first prehearing conference. Instead of allowing vague contentions subject to the evndition of providing more specificity when the information is available, 6s we have done in this case, a board should have the option of deferring the due date for contentions about the relevant subject until, say, thirty days after the information is available. Of course, contentions filed by that time would not be subject to the late-filing criteria in section 2.714(a)(1). The only important practical difference in these two approaches would be the availability of discovery if a contention were admitted conditionally. In cases where there are i serious time pressures, it may be! preferable to go ahead with discovery on vague contentions, with the difficulties that entails, rather than to wait -
months for relevant documents. Under a more leisurely schedule, it may be more efficient for all concerned to postpone all contention rulings until after pertinent documents are available. The choice between these approaches should be in the Licensing Board's discretion.
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- 3. Referral to the Appeal Board. In the event that their objections are not sustained, both the Applicants and the Staff seek referral7 /
to the Appeal Board of the following rulings:
(1) The Board's conditional admission, absent the specificity required by 10 CFR 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 2.714(a) would not be appl ied.
(2) The Board's conditional admission of six relatively vague contentions, subject to the provision of greater specificity after completion of discovery.
(3) The Board's ruling that the late-filing criteria of 10 CFR -
2.714(a) do not apply to contentions based on information or analysis in documents not previously available and filed promptly after such documents are issued.
Rulings may be referred where necessary "to prevent detriment to the public interest or unusual delay or expense." 10 CFR 2.730(f). See Public.
Service Co. of Indiana (Marble Hill), 5 NRC 1190,1192 (1977), and cases cited. In addition, the Commission has encouraged referrals "if a significant legal or policy question is presented." Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533, 28535. More ,
specifically, referral may be appropriate where the rulings in question l
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-7/ Both parties use the term " certify" rather than " refer." The rules appear to contenplate " certification" under 10 CFR 2.718(i) and 2.751a(d) where a board does not first decide the disputed question, l and " referral" under 10 CFR 2.730(f) where the board first rules and l then requests interlocutory review. Since we have ruled in this case, we are in a referral posture. Except for the fact that the rules and cases speak in these different terms, the distinction appears to be unimportant.
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affect "the basic structure of the proceeding in a pervasive and unusual manner." Houston Lighting and Power Co. (Allens Creek Station), 13 NRC 309, 310.
We believe that the issues involved here meet these standards. They concern not merely isolated rulings on particular contentions, but raise generic issues affecting most of the contentions thus far admitted into the case. If the Board's rulings are ultimately determined after hearing and on appeal to be incorrect, very substantial delay and expense may have been unnecessarily incurred. Perhaps more significantly, these issues seem bound to affect the admission of contentions in other upcoming cases. At the present time, there is no clear guidance on these issues from the Appeal Board or the Commissioq.
The motions to refer rulings 1-3 as framed above to the Appeal Board pursuant to 10 CFR 2.730(f) and 2.751a(d) are granted. We will transmit to the Appeal Board copies of the documents listed in the margin to assist it in its deliberations.8/
~~8/ Memorandum and Order (Reflecting Decisions Made Following -
Prehearing Conference), dated March 5, 1982.
Applicants' Motion for Reconsideration or in the Alternative for certif ication, dated March 31, 1982.
NRC Staff's Objections to Licensing Board's March 5,1982 Order on Adnission of Contentions, dated April 5, 1982.
NRC Staff's Response to Applicants' Motion for Certification of Certain Ruings in Licensing Board's Prehearing Conference Order, dated April 20, 1982.
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d Tne provisions of our Order of May 25, 1982 concerning suspension of discovery shall remain in effect pending a further Order.
THE ATOMIC SAFETY AND LICENSING BOARD hem C4 pies L. Kelley, Chairman ADMINISTRATIVE JUDGE d Ye+ m M% [
Dr. A. Dixon Callihan ADMINISTRATIVE JUDGE btA6 / b d^
Dr. Richard F. Foster ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 30th day of June, 1982.
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