ML20055B002
| ML20055B002 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 07/16/1982 |
| From: | Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8207200241 | |
| Download: ML20055B002 (32) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
Docket Nos. 50-413 50-414 (CatawbaNuclearStation, Units 1 and 2)
)
NRC STAFF BRIEF IN SUPPORT OF REFERRAL TO THE APPEAL BOARD OF CERTAIN LICENSING BOARD RULINGS ON THE ADMISSION OF VAGUE CONTENTIONS 1
George E. Johnson Counsel for NRC Staff July 16, 1982 DESIGNATED ORIGINAL 820720024i 820716 Cav'.F W F7 FDR ADOCK 05000
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
Docket Nos. 50-413 50-414 (Catawba Nuclear Station, Units 1 and 2)
NRC STAFF BRIEF IN SUPPORT OF REFERRAL TO THE APPEAL BOARD OF CERTAIN LICENSING BOARD RULINGS ON THE ADMISSION OF VAGUE CONTENTIONS l
George E. Johnson Counsel for NRC Staff July 16, 1982 l
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i TABLE OF CONTENTS Page I.
INTRODUCTION..........................................
1 II. DISCUSSION............................................l......
4 A.
The Licensing Board's Rulings on Admission of Vague and Late-Filed Contentions are Fundamental Errors of Law, in Contravention of Comission Regulations, Interpretations and Deci sion Precedent.................. 4 1.
Licensing Boards May Not Admit Cententions Which Fail to Meet the Specificity Rev irement of 10 C.F.R.Section2.714(b),Notwiths.rancingthe Unavailability of Staff or Applican Documents, or Relax That Requirement Based on the Possibility That Discoverv Might Supply the Requisite Information........................................
4 a.
The Licensing Board Has Improperly Waived the Specificity Requirement for Contentions... 4 b.
There is No Case Support for Waiving Specificity Requirements Where Staff or i
Applicant Documents are Unavailable...........
7 l
c.
The Licensing Board May Not Relax The Specificity Requirments to Admit Contentions Subject to Specification After Discovery......
10 2.
The Licensing Board May Not Waive Application of the Late-Filing Criteria for Late Contentions......
12 1
3.
Neither Fairness Nor Statutory Mandates Under the l
Atomic Energy Act or NEPA Require Admission of Vague l
Contentions Where Pertinent Documents are Lacking...
15 B.
Interlocutory Review of the Three Referred Rulings is Warranted Under Appeal Board. Standards..................
19 1.
Appeal Board Standards for Interlocutory Review of Licensing Board Rulings............................
19 2.
The Immediate and Pervasive Impact of the Licensing Board's Erroneous Rulings on the Structure of This l
and Pending Proceedings Provides the Extraordinary l
Cause Needed for Interlocutory Review.............. 20 III.
CONCLUSION...................................................
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TABLE OF CITATIONS
'N Page CASES:
J' B3 v. AEC, 502 F.2d 424 (D.C. Cir. 1974).................../..... 2,5(G,17' %-
(.
f ADMINISTRATIVE CASES:
r+
,n f Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, 3
Units 1 and 2), Board Order, June 4, 1982.......................
21; 2 ? '
e V(/
or Cincinnati Gas and Electric Co. (Zimer Station),10 NRC 213,.
15j
,y, (1979)..........................................................
7 Comonwealth Edison Co. (Byron Nuclear Power St'ation, Units 1 and 2), LBP-80-30, 12 NRC 683 (1980).........................'...
8 c.,
'l f
Comonwealth Edison Company (Guad Cities Station, Units 1 and i.),-
LBP-81-53, 14 NRC 912, 914-915 (1981)..................._........
9)-
,i
/
/
Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC (March 30,1982) (Slip Op. at 19)..)' 6
'/
Guif States Utilities Company (River Bend Station, Units 1 and
, / 'f 2), ALAB-444, 6 NRC 760 (1977)................................#..;
9 I
e j
e1,
Houston Light and Power Co. (Allens Creek Nuclear Generating
/'
Station, Unit 1), ALAB-565, 10 NRC 521, 1979.............;..>....
22 f
Houston Light and Power Co. ( Allens Creek Nuclear Generating.
I Station, Unit 1),ALAB-635,13NRC309(1981).r...........'...:...
20 l
Indiana and Michigan Electric Company (Donald C. Cook Nuclei.'r Plant, Uni ts 1 and 2), CLI-72-75, 5 AEC 13 (1972 )...'.....'."......
14 Northern States and Power Co. (Prairie Island Nucle $r Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, aff'd, CLI-73-12, 6 AEC 241, aff'd sub nom. BPI v. AEC, 502 F.FU4 '(0.C. cir.
1974)................................................... 7.....
2, 4, 6,,
11
~
Pennsylvania Power and Light Co. (Susquehanna steam' Electric #
I Station, Units 1 and 2), ALAB-613, 12 NRC 317, 323 (19807......
11 s
Public Service Co. of Indiana (Marble Hill Nucle.*r Generating '
Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977).'.~.......... 20
/ *
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Southern California Edison Co., et al. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-308, 3 NRC 20, 25 '
(1966)..........................................................
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s l
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1 6
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iii Southern California Edison Co. (San Onofre Station), Partial Initial Decision at 221, n. 94 (1982)...........................
10 Southern Carolina Electirc and Gas Co. et al. (Virgil C. Suniner Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140 (1981)..........
20 Tennessee Valley Authority (Browns Ferry (Nuclear Power Plant, Units 1, 2 and 3), ALAB-664, 15 NRC 1 1982)....................
7, 8 t
Tennessee Valley Authorit (Browns Ferry Nuclear Power Plant, Units 1, 2 and 3), t,, 15 NRC (April 16,1982) Slip Op. at 2).......................................................
8 Virginia Electric and Power Co. (North Anna Nuclear Power Station,
!!ni ts 1 and 2 ), ALAB-491,- 8 NRC 245 (1978)...................... 9
/
Wisconsin Electric Power Co. (Koshkonong Nuclear Power Plant),
.. G LI-74-45, 8 AEC 928, 929 (1974)................................
4, 5, 11, 14 5
..v
. STATUTES:
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Atomic Energy Act, Section 161p...................................
17
/tomic Energy Act, Section 189a...................................
6, 16, 17, 19 National Envircnmental Policy Act (NEPA) Section 102..............
16, 17, 19 3
/
5 REGULATIONS:
10 C.F.R'. I 2.714.................................................
1,5,6,7,8,
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11, 12, 13, 18 10C.F.R.6I.714(a)..............................................
1, 2, 12, 14, 15
- n 16, 19
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10 C.F.R.;6 2.714(b)..............................................
2, 4, 9, 10, 11
^
L' f
15, 18, 24 s
i /
10 C.F.R. Q 2.718.../..........................................
16 i/
i j
10C.F.It.92.730(f)..............................................
, 20 10,C.F.R. 6 4 752.................................................
11
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10 C. F. R. E g.-7 5 8.................................................
13, 19 10 C.F.R;l 2.'758(d)...............................................
6 10 C.F.'R. 5 2.790(a)..............................................
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iv FEDERAL REGISTER:
43 Fed. Reg. 17798 (April 26, 1978)...............................
3, 13 Statement of Policy on Conduct of Licensing Proceedings, 46 Fed.
Reg.
28533......................................................
20, 23
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of DUKE POWER COMPANY, ET AL.
Docket Nos. 50-413 50-414 (CatawbaNuclearStation,
)
Units 1 and 2)
)
NRC STAFF BRIEF IN SUPPORT OF REFERRAL TO THE APPEAL BOARD OF CERTAIN LICENSING BOARD RULINGS ON THE ADMISSION OF VAGUE CONTENTIONS I.
INTRODUCTION 1.
On June 30, 1982, the Atomic Safety and Licensing Board in the captioned proceeding overruled certain Staff objections to three rulings in the Licensing Board's Memorandum and Order (Reflecting Decisions Made Following Prehearing Conference) of March 5, 1982 (" March 5, 1982 Order"), but nevertheless referred those rulings to the Appeal Board for interlocutory review pursuant to 10 C.F.R. Section 2.730(f).
Memorandum and Order (Overruling Certain Objections to Prehearing Conference Order and Referring Certain Questions to the Appeal Board),
dated June 30,1982(" June 30,1982 Order"),at2,15. The Staff's objections were based upon the following Licensing Board rulings, now referred to the Appeal Board:
(1) The Board's conditional admission, absent the specificity required by 10 C.F.R. 5 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 C.F.R. 9 2.714(a) would not be applied.
(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 C.F.R. 6 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.
Id. at 14 By Memorandum and Order, dated July 1,1982, (" July 1,1982 Order") the Atomic Safety and Licensing Appeal Board has provided Applicants and Staff an opportunity to address the existence of extraordinary cause for acceptance of the referral and the merits of the referred rulings. July 1,1982 Order at 2.
The NRC Staff hereby responds to this invitation by the Appeal Board.
2.
While the Staff recognizes the disinclination of the Appeal Board to undertake interlocutory review of licensing board detenninations on the admissibility of contentions, the Staff nevertheless believes that the Licensing Board's rulings are fundamentally at odds with the rules of practice set forth in Part 2 of the Comission's regulations, as well as specific statements of consideration and case holdings established by the Comission. The requirement that intervenors plead contentions with reasonable specificity and basis, prior to obtaining their admission and the consequent right to discovery, is basic to the conduct of NRC licensing proceedings. See, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, aff'd, CLI-73-12, 6 AEC 241, aff'd sub nom., BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). Further, the Comission has expressly considered whether to apply the late-filing criteria to new or amended contentions filedafterthedatespecifiedin10C.F.R.Section2.714(b),andadopted
_ _. a regulatory provision so directing.
43 Fed. Reg. 17798 (April 26, 1978). The Licensing Board's determination that this area of the law has been left uncertain by the Commission, and that other " compelling con-siderations" require admission of vague contentions and waiver of the late-filing criteria is unfounded. Although the Licensing Board has determined that the Commission has not spoken authoritatively on these issues, it nevertheless agrees with the Staff that these are extraordinarily important matters which not only will affect this proceeding in a pervasive and unusual manner, but may, if adopted by other Licensing Boards, have a pervasive impact on licensing proceedings generally, and, as such, justify interlocutory review at this time.
It may be as long as a year or more before the Appeal Board will have an opportunity to review an initial decision in this proceeding, during which time, if the Licensing Board's rulings are followed elsewhere, a number of licensing proceedings may proceed in a manner contrary to the rules of practice established by the Commission. The Staff therefore urges the Appeal Board to accept the Licensing Board's referral of the three subject rulings for review at this time. The Staff's position is supported in more detail below.
_ _ _ _ _ _ _ _ II. DISCUSSION
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A.
The Licensing Board's Rulings on Admission of Vague and Late-Filed Contentions are Fundamental Errors of Law, in Contravention of Commission Regulations, Interpretations and Decision Precedent 1.
Licensing Boards May Not Admit Contentions Which Fail to Meet the Specificity Reouirement of 10 C.F.R. Section 2.714(b),
Notwithstanding the Unavailability of Staff or Applicant Documents, or Relax That Requirement Based on the Possibility That Discovery Might Supply the Requisite Information a.
The Licensing Board Has Improperly Waived the Specificity Requirement for Contentions The principal error of the Licensing Board in admitting vague contentions, subject to specification after the availability of Staff and Applicant documents and discovery, is the Licensing Board's failure to follow controlling Commission decisions interpreting 10 C.F.R. Section 2.714(b) which hold 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 his obligation under that provision 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 Power Plant), CLI-74-45, 8 AEC 928, 929 (1974); see also, Prairie Island, ALAB-107, supra.
With respect to its admission of vague contentions pending specification through discovery, the Licensing Board contends that it has not admitted concededly non-specific contentions.
Specifically the Board has stated that:
The Staff is simply not correct in referring to "the Board's admission of contentions it concedes do not meet the 10 C.F.R. 2.714(b) specificity standard..."
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June 30, 1982 Order at 12. However, the Board makes no such claim with respect to its ruling on admission of vague contentions where certain documents are not yet available or its waiver of late-filing require-ments for subsequently proffered contentions. The Board itself has characterized its ruling as "[t]he Board's conditional admis* ion, absent the specificity required by 10 C.F.R. 5 2.714, of 10 contentions based on the unavailability of Staff or Applicant documents which might allow the further particularization of the contentions."
_Id. at 14. The question as to the Board's first ruling is thus not whether less specificity will suffice at the pleading stage than at the hearing stage, but whether the Licensing Board had authority to admit contentions conditionally notwithstanding their failure to meet the specificity standard of Section 2.714.
The Licensing Board seeks to avoid conflict with the Comission's determinations referenced above by stating that the Comission has not ruled on the specific question presented. June 30, 1982 Order at 3.
It reiterates its earlier conclusion that "Koshkonong and BPI v. AEC, were not ' focused on the situation that concerns us here' Order at 8", jd.
at 2, and therefore are not controlling. The Board relied on the distinction that in those cases the Comission and Appeal Board rested their decisions,on the " wealth of data" available in Applicant's safety analysis and environmental reports, upon which petitioners could have pleaded reasonably specific contentions, whereas in this case, with respect to the contentions where documentation on the subject of the contention is as yet unavailable, there is no information upon which to frame specific contentions.
The two Comission precedents involved whether the Section 2.714 requirement to plead specific contentions was a reasonable condition upon the granting of a hearing under Section 189a of the Atomic Energy Act, as amended. The Comission held that it was, and, in BPI v. AEC, the Court of Appeals for the District of Columbia Circuit affirmed.
Prairie Island, ALAB-107, supra, 6 AEC at 191, aff'd, CLI-73-12, 6 AEC 241; aff'd sub nom., BPI v. AEC, supra. To the extent the Licensing Board has ruled that, in the circumstances presented in this case, the specificity requirement is not a reasonable condition, the Licensing Board has exceeded its authority, for it, just as parties to an adjudicatory proceeding, is bound by the Comission's regulations.
See, Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC (March 30, 1982) (Slip op. at 19) (".
.. the directives of superior tribunals must be given effect whether or not the subordinate tribunal agrees with them"). That Licensing Boards are not free to suspend regulations is made clear by the requirement that waiver or exception therefrom must be referred for determination by the Comission.
10 C.F.R. Section 2.758(d). The Licensing Board has not merely chosen one of several alternative possible interpretations of the regulatory language, nor has it simply " distinguished" the two leading Comission precedents. Rather, it has elected to waive application of the regulation -- to admit contentions " absent the specificity required by 10 C.F.R. 5 2.714..." -- because of other " compelling considerations."
H., Southern California Edison Co.,
et al. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-308, 3 NRC 20, 25 (1976)
_ _ - _ _ (Appeal Board "not empowered to recast the plain tenns of a regulation so as to achieve what we might deem to be a preferred result"). This it simply cannot do.
n b.
There is No Case Support for Waiving Specificity Requirements Where Staff or Applicant Documents are Unavailable Further, the Licensing Board does not directly confront the fact that no other reported decision has taken the view that contentions lacking the specificity called for by Section 2.714 are nevertheless admissible where Staff or Applicant documents on the subject are yet to be provided. The cases which the Licensing Board asserts are " broadly illustrative of a Licensing Board's authority to admit a vague contention conditionally, subject to later specification where necessary documenta-tion becomes available..." (June 30, 1982 Order at 2-3) do not in fact support the Licensing Board's novel rulings.
Although the Appeal Board ruled, in Tennessee Valley Authority (Browns Ferry Nuclear Power Plant, Units 1, 2 and 3), ALAB-664,15 NRC 1 (1982), that a ruling on the petition to intervene should await the completion of the Staff analysis and petitioners' comments thereon, there are several important distinctions between that case and this.
First, the Appeal Board's Browns Ferry ruling did not turn on the question of the specificity of a contention, but rather, the mixed question of fact and law as to whether there were unavoidable conse-quences (such as the need for incineration), beyond the term of TVA's five-year storage plan for low-level radioactive waste, which had to be considered in assessing the environmental impact of the TVA storage plan.
Second, the majority in Browns Ferry noted that "we need not in the J
. - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. ordinary case defer ruling on an intervention petition until after a staff environmental analysis is prepared," but distinguished the Browns
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Ferry situation from such an " ordinary case" because "the petitioners' right to intervene in this case may turn on the conclusion reached in the Staff analysis."
Id. 15 NRC at 10. Since, in the instant proceeding, intervenors' right to intervene is not at all dependent upon any Staff or Applicant analyses which are currently unavailable, this is not such a unique case, and is not controlled by the Appeal Board's action in Browns Ferry.1/ Finally, the Appeal Board majority did not support admitting defective contentions, but rather ordered that dismissal of petitioners' contentions should be deferred. Thus Browns Ferry does not address the specificity requirement of Section 2.714, or the commencement of discovery on non-specific contentions, and is not authority for the actions undertaken by this Licensing Board.
Similarly, the Licensing Board accorded undue weight to another Licensing Board decision in Comonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683 (1980), as support
-1/
The Comission has decided to review the Appeal Board's decision in Browns Ferry. Tennessee Valley Authority (Browns Ferry Nuclear Power Plent, Units 1, 2 and 3), CLI, 15 NRC (April 16, 1982). Specifically, the Comission has asked the parties there to address 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.
Id. slip op. at 2.
The Staff notes the Additional Coments of E6missioners 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..."
-9 for this Licensing Board's proposition that contentions conceded to be deficient may be admitted conditionally where later-issued or available documents may aid a petitioner in framing a proper contention.
In Byron, the Licensing Board admitted contentions on the inadequacy of the Applicant's Environmental Report and of Applicant's responses to questions posed by the Staff; thus attention focused on the inadequacies of existing documents. 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, Units 1 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 (1977), that Licensing Boards should consider the adequacy of the Staff analysis of generic safety issues.
In no instance did the Byron Board make a finding that the contentions it admitted failed to meet the specificity requirements of 10 C.F.R. Q 2.714(b).
Finally, Comonwealth Edison Company (Quad Cities Station, Units 1 and 2), LBP-81-53, 14 NRC 912, 914-915 (1981), does not hold that vague contentions are nonetheless admissible where Staff evaluations are not yet available.
Rather, the Licensing Board there deferred ruling on a contention (on the alternatives to spent fuel storage expansion) which was defective in that it lacked an explicit allegation of significant impact on the environment until after the Staff's EIA was available. While the Licensing Board's determination there appears to have confused the requirements for pleading with the factu-l determination of "significant l
effect" on the environment, that decision, in any event, did not admit the contention subject to later specification, but merely deferred the Board's ruling.
- c. The Licensing Board May Not Relax the Specificity Requirements to Admit Contentions Subject to Specification After Discovery In the June 30, 1982 Order, at 11-12, the Licensing Board notes that it admitted "certain somewhat vague contentions subject to the possibility that they might be made more specific following discovery,"
and " applied 'less stringent standards of specificity than we will apply at the final prehearing conference.' [ March 5,1982] Order at 13."
It further states that the Staff is incorrect in characterizing the Board as having conceded that these contentions do not meet the Section 2.714(b) specificity standard. Rather, the Board "believe[s] 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)."
June 30, 1982 Order at 12.E l
As noted in NRC Staff's Objections to Licensing Board's March 5, l
1982 Order on Admission of Contentions" (" Staff Objections"), at 9-11,
-2/
San Onofre, however, does not stand for the proposition that a Board may relax Section 2.714(b) specificity standards. Rather, the Licensing Board there applied a more stringent standard for admission of a contention filed "at the eleventh hour," shortly before hearing, where there was no opportunity to develop greater specificity through discovery. The Board's rationale -- that l
the requirement becomes "more stringent with the passage of time and the progress of the case" -- does not apply to our case, where we are at the initial prehearing conference order stage.
both the Prairie Island and Koshkonong cases stand for the proposition that a party is to be held to the specificity standards in Section 2.714(b) despite the lack of access to discovery. I We also noted there that the authority to direct the drawing of more narrow, sharply focused issues for purposes of evidentiary hearing under 10 C.F.R. Section 2.752, does not constitute grounds for relaxing the specificity required under Section 2.714.
The question is, and remains, whether the threshold specificity for admission of contentions has been met. This Licensing Board has not only admitted six contentiens subject to specification through discovery erroneously, but has app?ied the wrong standard.
It is the latter, rather than the former, e ror which is the principal basis for this interlocutory appeal. Tha Licensing Board cites no other authority for relaxing the threshold for specificity under Section 2.714 to admit "somewhat vague contentions" so that they may be made adequately specific through discovery. The Staff believes there is none. The Board also l
-3/
The Staff believes the Board's comments (June 30, 1982 Order at 12) on the availability of information concerning defects in equipment or lapses in quality assurance do not adequately take into consid-eration the full scope of information readily available to the public.
Comission regulations (10 C.F.R. Section 2.790(a)) make l
Staff documents that are relevant to licensing proceedings routinely l
available in the NRC Public Document Room. Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-613, 12 NRC 317, 323 (1980). Thus, a member of the public need not obtain discovery to obtain the record of Staff review and the basis for Staff's evaluations. Armed with this information, any person possessing standing may challenge the safety of plant t
design or construction, provided he meets the specificity and basis requirements for admissible contentions, and the late-filing criteria, if appropriate.
fails to explain why its relaxed standard would not be applicable to all contentions in all licensing proceedings, or what would be left of the regulatory standard after application of its "new rule."
In sum, the Licensing Board's admission of contentions not complying with the specificity and basis requirements of Section 2.714, to be made more specific after pertinent Staff and Applicant documents become available or following discovery, improperly and erroneously fails to apply the controlling language of Section 2.714 and Conunission case law interpreting that provision.
2.
The Licensing Board May Not Waive Application of the Late-Filing Criteria For Late Contentions Intertwined with the Board's waiver or relaxation of the specificity requirement for contentions based on the unavailability of Staff or Applicant documents, or pending discovery, is the " Board's ruling that the late-filing criteria of 10 C.F.R. Section 2.714(a) do not apply to contentions based on information or analysis in documents not previously I
available and filed promptly after such documents are issued." June 30, 1982 Order at 14. The Licensing Board viewed application of Section l
2.714(a) to be an unreasonable hurdle to obtaining admission of contentions since, if filed promptly after the pertinent documents become available, the contention could not reasonably be considered
" late." March 5,1982 Order at 12, I
i As with the specificity requirement, the requirement to demonstrate, pursuant to the criteria of Section 2.714(a), that the lateness is excusable is clearly stated in the regulations. The Licensing Board has l
no authority to set it aside.
10 C.F.R. Section 2.758.
Indeed, the Licensing Board acknowledges that the Comission has specifically addressed whether the late-filing criteria apply to late-filed contentions based upon new information in previously unavailable documents.
In fact, the June 30, 1982 Order, at 7, quotes the pertinent
" Supplementary Infomation" accompanying adoption of amendments clarifying the application of the late-filing criteria to contentions filedafterthetimeprovided.O While the Licensing Board concedes that"[tJhesestatementsseemtoweighagainst[its]conclusionthat contentions based on new information, if raised promptly after the information becomes available and otherwise satisfactory, are not tested against the criteria for late petitions and contentions...,"
the Board sets the Comission rule and explanation aside as not
" entitled to much weight in the circumstances of this case." June 30, 1982 Order at 8.
4/
The Comission's explanation was as follows:
There is no provision in 5 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 infonnation which comes to light after petitioners have been admitted, such as information in the Commission Staff's safety evaluation or environmental impact statements.
The Comission believes that 6 2.714 should be amended in the interest 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 after 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.
This, suggests the Licensing Board, is appropriate since the Staff-drafted rule was adopted without change, without a fomal Comission meeting to discuss the amendments, and "was probably not th'e subject of close Comission scrutiny." June 30, 1982 Order at 9.
The Licensing Board speculates that
"... if the Comission had been made aware of the implications that the Applicants and Staff now find in the rule, there would at least have been extended discussion of those implications and a clearer expression of the Comission's intent."
Id. Such speculation as to the Comission's decisionmaking process is improper, and, in any event, cannot outweigh the explicit direction and explanation by the Commission that it intends that the late-filing criteria apply to late contentions based on new information.
Finally, the application of the criteria of Section 2.714(a) does not impose an unreasonable restriction on admission of othemise good contentions raised promptly af ter new information in Staff or Applicant documents becomes available.
In Staff Objections, at 13-14, the Staff noted twe Comission decisions illustrating a long-standing practice to accept as good cause for late-filed contentions, the I
justification that they are based upon new information appearing in j
previously unavailable documents.
Indiana and Michigan Electric Company (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75, 5 AEC 13, at 14 (1972); Koshkonong, supra, 8 AEC at 929. The Licensing Board argues that these precedents are "from Atomic Energy Comission days" and do not deal with the four other criteria to be considered under Section 2.714(a).
j However, in the only case cited by the Board which deals with filing of late contentions promptly following the availability of new information, l
_ _ _ _ _ _ Cincinnati Gas and Electric Co. (Zimer Station),10 NRC 213, 214-217 (1979), the Licensing Board admitted the late-filed contentions. The Licensing Board has presented no basis for rebutting the Staff's argument that "the Comission has interpreted this provision rather liberally where new matters have arisen after the initial pleadings." Staff Objections at 13.5/ Thus, the Licensing Board's conclusion that requiring late-filed contentions to be subject to the criteria of Section 2.714(a) will unreasonably hinder access to the hearing process is unfounded in a situation where new infonnation in previously unavailable documents underlies the request for admission of late-filed contentions.
3.
Neither Fairness Nor Statutory Mandates Under the Atomic Energy Act or NEPA Require Admission of Vague Contentions Where Pertinent Documents are Lacking The Licensing Board has placed substantial reliance for its admission of contentions notwithstanding the lack of Section 2.714(b) specificity, where pertinent Staff and Applicant documents have yet to be made available, on "other compelling considerations" -- notably the alleged unfairness of requiring a party to plead specific contentions based on a document which does not yet exist, citing the Licensing Board's duty.
-5/
The Staff position articulated in its Response to Supplemental Statements of Contention dated June 22, 1982 in Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2),
at page 10, -- that new information in documents not previously available will constitute good cause, and that that factor will ordinarily prevail in the balancing of the five factors -- does not lead to a conclusion that Section 2.714(a) may be dispensed with, only that in the circumstances involved a finding of good cause is likely to outweigh the other factors.
_______________ __ __ __ _ pursuant 10 C.F.R. Section 2.718, to conduct a fair hearing, the right to a hearing under Section 189a of the Atomic Energy Act, as amended, and the requirement that environmental questions be considered "to the fullest extent possible" throughout the agency review process, pursuant to Section 102 of the NEPA. March 5, 1982 Order at 7, n.7, and 10-11.
Quite apart from the Licensing Board's lack of authority to set aside a Commission regulation, or to elect not to follow applicable Commission directions, interpretations and precedent, as discussed supra, the Board's rationale for overturning these established policies is quite weak on the merits.
The fundamental point as to each of the Board's " compelling considerations" is that the regulations provide a reasonable mechanism for dealing with the difficulty an intervenor may have in framing a contention with reasonable specificity and basis where Staff and Applicant documents do not exist. That mechanism is the provisions of the applicable late-filing requirements allowing the Licensing Board to entertain new or amended contentions promptly filed after such documents become available. The abrogation or relaxation of Commission regulations and directives is simply not necessary to protect an intervenor's right to a hearing on such issues, or to assure any relevant consideration of the environment.
First, as noted above, the Commission has adopted a liberal approach to accepting, as justification for admitting late-filed contentions, the excuse that new information from Staff or Applicant documents has only recently become available. Thus, as a practical matter, application of Section 2.714(a) will result in no unfairness.
l Second, in light of the availability of a reasonable avenue for obtaining the admission of contentions based on new information, there is no substantial ground for concluding that the exclusion of non-specific contentions in a situation where the documents upon which they might be based are unavailable denies a petitioner's right to a hearing in violation of Section 189a of the Atomic Energy Act. Despite the Licensing Board's conclusion to the contrary, the late-filing provision, as applied by the Commission, offers "an equivalent opportunity to frame a contention promptly following the availability of the information." March 5, 1932 Order at 10.
Even the Licensing Board noted that the courts have held that the hearing requirement may be conditioned.
_I d_. Thus, BpI v. AEC, supra, takes a broad view of the Commission's authority to implement through the rule-making authority under Section 161p of the Atomic Energy Act, the hearing requirements of Section 189a.
If the authority of Section 161p extends as far as requiring contentions filed in a timely manner to be reasonably specific, it certainly extends to requiring a petitioner to demonstrate that admission of a late-filed contention is justified (for example, because the basis for the contention did not previously exist or was not previously available).
Finally, the requirement to plead all contentions with reasonable specificity and basis does not prevent consideration of environmental issues "'to the fullest extent possible' throughout the agency review process, including the hearing process" in accordance with Section 102(2) of the National Environmental Policy Art. as suggested by the Licc" sing Board, even where the Staff EIS is not available at the time contentions are required to be filed. H. Sufficient information to frame adequately specific environmental contentions should be provided in the Applicant's Environmental Report which is available at the time petitions to intervene are to be filed. Beyond this, the same mechanism for the admission of late-filed safety-related contentions, the late-filing criteria of Section 2.714, is available for consideration of late-filed environmental contentions submitted promptly after the EIS is issued. Since the availability of new information -- such as in a newly published EIS -- will ordinarily justify admission of otherwise admissible late-filed contentions, the Licensing Board's concern that applying the Commission's rules of practice to NEPA contentions would constitute an " impermissible restriction on agency consideration of the environment" is unwarranted. The Staff believes that the Licensing Board's admis: ion of NEPA contentions which fail to satisfy the basic requirements for admissibility of contentions goes well beyond any I
requirement imposed by NEPA.
In sum, the three rulings here referred to the Appeal Board are clearly erroneous. Controlling Commission precedent, affirmed by the Court of Appeals for the District of Columbia Circuit, requires all l
contentions to meet Section 2.714(b) specificity requirements prior to admission. The specificity requirement of Section 2.714(b) applies to l
i the admission of contentions whenever pleaded, and does not prevent l
l intervenors from raising issues even after the time for filing contentions has passed. Despite argument to the contrary by the Licensing Board, no reported Comission decision has heretofore admitted vague contentions simply because Staff or Applicant documents which might furnish the needed l
\\
l particularity were not yet available.
In 1978, the Comission promulgated changes in its rules of practice for the specific purpose of addressing the requirement that contentions filed after the time allotted by rule be admitted only upon meeting the late-filing criteria of Section 2.714(a). These provisions reasonably accomodate the practical difficulties which have arisen in this case. The Licensing Board is bound to follow them.
10 C.F.R. Section 2.758.
Further, the Licensing Board offers no precedent for its ruling that the specificity standard may be relaxed so that discovery may be had for the purpose of framing adequately specific contentions.
In view of the availability of pertinent staff review documents, adequate information is provided upon which to frame contentions, without discovery. Finally, since these requirements do not prevent litigation of contentions raised promptly upon the availability of new information, such requirements are not inconsistent with providing a fair hearing, and do not impermissibly limit the hearing afforded under Section 189a of the Atomic Energy Act, or the fullest consideration of the environment under Section 102 of NEPA.
For all these reasons, the Licensing Board's rulings are erroneous.
l l
B.
Interlocutory Review of the Three Referred Rulings is Warranted Under Appeal Board Standards 1.
Appeal Board Standards for Interlocutory Review of Licensing Board Rulings As noted by the Licensing Board, rulings may be referred by a Licensing Board to the Appeal Board, "[w] hen in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense..." 10 C.F.R.
Section 2.730(f). June 30, 1982 Order at 14, citing, Public Service Co.
of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-405, 5 NRC 1190, 1192 (1977) and the Connission State,.ent of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533, 28535 ("If a significant legal or policy question is presented on which Connission guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission").
Nevertheless, the Appeal Board has exercised its authority to conduct interlocutory review very sparingly, such that:
[a]1most without exception in recent times, [the Appeal Board has]
undertaken discretionary interlocutory review only where the ruling below either (1) 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 or unusual manner.
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); South Carolina Electric and Gas Co. et al. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1162 (1981); Marble Hill, supra, 5 NRC at 1192. The Staff l
interprets the Appeal Board's direction to address the " existence of extraordinary cause for acceptance of the referral" as a request to l
l address the above quoted standard.
2.
The Immediate and Pervasive Impact of the Licensin<j Board's Erroneous Rulings on the Structure of This and Pending Proceedings Provides the Extraordinary Cause Needed For Interlocutory Review The Licensing Board's rulings admitting vague contentions to be made specific later, following issuance of currently unavailable Staff and Applicant documents, or through discovery, and waiving of the late-filing criteria for late contentions based on new information, reshape this proceeding in a manner not contemplated by the regulations, and, in fact, directly contrary to controlling Comission regulations, inter-pretation, and case law. The primary practical impact of these rulings on this proceeding is to permit discovery to commence on contentions that are based on challenges to documents which do not yet exist and based upon generalized apprehensions about the quality of plant equipment and construction. Until stayed by order of the Licensing Board, discovery served by the parties was becoming a tangle of detailed interrogatories -- scores of Intervenor interrogatories searching for any indication of deficiencies in plant construction or equipment, and hundreds of Applicant interrogatories probing every nuance of Intervenor's vague contentions.
In the fonner case, the interrogatories had no focus because the underlying contentions had no focus; in the latter case, the interrogatories were a search for substance that Intervenors hoped Applicants' responses would supply. Such discovery is a burdensome and unproductive enterprise.
Although the Appeal Board has indicated that such a result does not rise to the level of " extraordinary cause" warranting acceptance of referral, this is not an ordinary case where an incorrect ruling on a contention results in nothing more than an additional burden on the parties. As the Licensing Board noted in its June 30, 1982 Order at 15, the Board rulings raise generic issues which affect not only most of the s
contentions in this case, but are likely to affect admission of i
contentions in other upcoming cases. See, for example, the Licensing l
l Board's June 4,1982 Order, at 4, in Shearon Harris, wherein that Board
_ discussed the specificity and late-filing rulings being challenged in the instant proceeding, noting that "the same issue will probably arise in the Shearon Harris prehearing conference."
Despite the Appeal Board's disinclination 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," and to justify interlocutory review.
Houston Light and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 522 (1979).
The unique aspect of this Licensing Board's rulings on admission of vague contentions is not so much the burden placed on the parties in this case, though that may be great, as the manner in which the Board's rulings threaten to alter the standards for admission of contentions and to reshape the structure and burden of proceedings which are to follow.E Even if the Appeal Board were to eventually rule on the issue after an initial decision is rendered in this case, such decision will not come in time to prevent substantial changes in the procedores followed in
-6/
A related peculiarity warranting interlocutory review is the possibility that, inasmuch as the mischief created by admitting vague contentions will typically be moot by the time of appeal of the initial decision, parties may not press these errors on appeal.
If the requisite specificity and basis has been supplied by the new information, the original error will have already been corrected; and if the contention is dismissed after the opportunity for revision, the original error will no longer need correcting.
The result would be that the Comission's specificity and late-contention standards will have been amended g facto by the Licensing Board.
l licensing proceedings now in ti'e prehearing stages, or which may proceed to that stage during the year or more before an initial decision in this case is rendered and appellate review completed. The Licensing Board's rulings here, which amount to a de facto amendment of the Comission's regulations setting forth the specificity and late-filing standards for contentions, stand as clear precedent to be followed in other licensing proceedings. This would appear to be the type of situation the Comission contemplated when it admonished in its Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533, (May 27, 1981), that
[ijf a significant legal or policy question is presented on which Comission guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Comission.
The Licensing Board's rulings, which are clearly contrary to the Comission's regulations and long-standing interpretations of those regulations, involve significant legal questions which, as decided by the Licensing Board here, promise to affect not only this proceeding but other licensing proceedings which reach the intervention stage before an i
appellate decision on the correctness of the Catawba rulings is rendered.
In sum, the Staff believes that the impact of the referred rulings j
on the structure of this and future proceedings satisfies the " pervasive" aspect of the Appeal Board criteria for interlocutory review. The possibility that a Licensing Board ruling resulting in de facto amendment to the Comissions rules of practice will not be a " live" issue by the end of proceedings in which such rule is followed, renders the impact on the structure of the proceeding sufficiently " unusual" to warrant imediate appellate review.
. III. CONCLUSION The Licensing Board's admission of contentions which do not comply with the specificity requirements of 10 CFR Section 2.714(b) and it.s l
waiver of the late-filing criteria for subsequently filed contentions 1
based on new information are fundamental errors of law made in excess of the Licensing Board's authority. Due to the likely imediate and pervasive impact of these rulings on the conduct of this and other pending proceedings, and the possibility that they may not otherwise be reviewed, the Appeal Board should find extraordinary cause to review these rulings now.
Respectfully submitted,
[w pl George Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 16th day of July, 1982.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-413
)
50-414 (Catawba Nuclear Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF BRIEF IN SUPPORT OF REFERRAL TO THE APPEAL BOARD OF CERTAIN LICENSING BOARD RULINGS ON THE ADMISSION OF VAGUE CONTENTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of July, 1982:
- James L. Kelley, Chairman Michael McGarry, III, Esq.
Administrative Judge Debevoise and Liberman Atomic Safety and Licensing Board Panel 1200 17th Street, NW U.S. Nuclear Regulatory Commission Washington, DC 20036 Washington, DC 20555 5
Robert Guild' Esq.
Attorney for the Palmetto Alliance i
rat u ge N
Union Carbide Corporation th Carolina 29201 P.O. Box Y Oak Ridge, TN 37830 Palmetto Alliance Dr. Richard F. Foster 2135\\ Devine Street Administrative Judge Columbia, South Carolina 29205 P.O. Box 4263 Sunriver, Oregon 97702
- Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Richard P. Wilson, Esq.
Washington, DC 20555 Assistant Attorney General P.O. Box 11549
- Docket and Service Section Columbia, South Carolina 29211 U.S. Nuclear Regulatory Commission Washington, DC 20555
- Atomic Safety & Licensing Appeal Panel U.S. Nuclear Regulatory Commission Washington, DC 20555
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Carolina Environmental Study Group
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854 Henley Place j
Charlotte, North Carolina 28207
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William L. Porter, Esq.
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Albert V. Carr, Esq.
Ellen T. Ruff, Esq.
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