ML20058A481
| ML20058A481 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 05/01/1981 |
| From: | Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20058A382 | List:
|
| References | |
| FOIA-92-436, FOIA-93-436, TASK-AIA, TASK-SE SECY-81-278, NUDOCS 8110280694 | |
| Download: ML20058A481 (17) | |
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May 1, 1981
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ADJUDICATORY ISSUE (Affirmation) 4 f
i For:
The Commission i
From:
James A.
Fitzgerald Assistant General Counsel
Subject:
REVInf OF ALAB-637 (HOUSTON LIGHTING AND I
PGiER CO..)
Facility:
South Texas Project, Units 1 and 2 Puroose:
To inform the Commission of a minor
~
Appeal Board decision.
i Review Time i
Expires:
May 26, 1981. 1/
Discussion:
Pursuant to a Commission decision, CLI-80-32, 12 NRC 281 (1980), intervenors Citizens Concerned About Nuclear Power, Inc. and Citizens for Equitable Utilities 0110280694 930412 PDR FDIA proferred contentions related to the
'OILINSK92-436 PDR i
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The Appeal Board decision, like the Licensing Board decision, is interlocutory and therefore not appealable.
l
=if 10 CFP S2.730(f).
However, the Appeal Board chose to l'
treat che appeal from the Licensing Board decision as a
--;J' request for directed certification.
See Public Service i
N J:
Electric and Gas Co. (Salem Station, Unit 1), ALAB-588, 4]
11 NRC 533, 536 (1980).
Under 10 CFR 52.786(b)(1),-
i 1,.4 rulings on directed certification questions are not n'.
appealable to the Commission.
Thus, no petition for
.i 9 3 review is permitted to be filed in this case, and the Ud h Commission has 40 days within which to decide if there will.be sua sponte review.
10 CFR 2.786(a)'. d e recommend
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3 E 3.2 5 CONTACT:
SECY NOTE:
This paper is identical to Harvey J. Shulman, OGC advance copies which were hand carried
- 493 ' cuke a b r Gm > icd, to Commission offices by OGC on Friday PM, May 1,1981.
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2 OA/QC program at the Souda Texas f acility.2/
Objections by the applicant and the NRC staff, both of whom of fered substitute contentions, led to a Licensing Board decision set forth in a Second Prehearing Conference Order (December 2, 1980) and-reaffirned in a Third Prehearing Conference Order (April 1, 1981) which specified the issues on which evidence would be taken.
Basically, the thrust of intervenors' complaint is that the Licensing Board erred by agreeing to receive evidence on the remedial steps taken by the applicant, af ter the issuance of an I&E show cause order, in order to improve its OA/0C The Appe'al Board did not rule program.
on Whether the Licensing Board thereby expanded ths issues to be litigated beyond those contemplated by the Commission 's decision in CLI-80-32.
Instead, it ruled diat the s,tandard for Appeal Board interference with such procedural matters --
i.e., Unat there be either a threat of "immediate and serious irreparable harm vhich could not be remedied by a later appeal" or that "the basic structure of i
the proceeding (be affected) in a pervasive or unusual manner" -- was not met in this case.
Public Service Electric (1980). pit 1)
U and Gas Co.,
(Salem Station, A LAr3-5 8 8, 11.533, 536 67*C Th us,
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A second issue ra'iEdly'Etervenors is even more easily addressed.
The Licensing In CLI-80-32, the Commission refused intervenors' 2/
request to order a separate hearing on OA/0C - related charges against the applicant contained in a show cause order caused by the Director, I&E.
Instead, the Commission directed that these charges be explored in this pending operating license proceeding.
i
3 l
Board rejected intervenors' request to postpone the hearing date because of the withdrawal of one of intervenors' counsel in March, 1981, the ' illness of one of i
intervenors' representatives, and the unavailability during May of another intervenor representative.
we do'~
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not believe that i
Acc6rdi ~
ingly, OGC does not recommend As we have noted, sua sponte review + 4-a l
expires May 26.
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ALAB-637 is attached for information.
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( Attachment B).
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Recommendation:
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I James A.
Fitzgtrald Assistant General Counsel l
1 Attachments:
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As stated t
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Comissicr.ers' coments or consent should be provided directly to the j
Office of the Secretary by c.o.b. L'ednesday, V.ay E,1951 (at the request of OGC).
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inis paper will be scheduled for affirmation at an open r.eeting at tne earliest practicable date.
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NUCLEAR REGULATORY CO.vJ:ISSION j
ATO!'IC SAFETY A';D LICENSING APPEAL BOARD 1
Administrative Jt iges :
P.ichard S.
Sal ran, Chai =an Dr. John E. Buck Christine N.
Echl e
In the 1:atter of
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i Hot'STC:: I.IGHTING & POWEE C01'P A':Y,
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Docket Nos. 50-498 OL
--ET AL.
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50-499 OL
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i (South Texas Proj ect, Units
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1 and 2)
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i Mr. Lanny Sinkin, Austin, Texas, for intervenors Citizens Concerned About Nuclear Power, Inc.,
s and Citizens for Equitable Utilities.
r Mes.rs. Jack R.
New.an, Maurice Axelrad, and Alvin H.
Gutterman, Washington, D.
C.,
and Messrs. Finis E.
Cowan and Thomas B. Hudson, Jr.,
Houston, Texas, for applicants Houston Lighting
& Powe r Comp any, e t _al.
b Mr. Jay M.
Gutierre: for the Nuclear Regulatory Cc=issicn s taf f.
EMOFANDUM A' D ORDER i
-t April 16, 1981
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Intervenors Citize=3 Cor cerned About Nuclear Power, Inc. (CCANF), and Citizens for Equitable Utilities (CE")
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have jointly filed two pleadings, each recuesting interlocutory review of portiens of the Licensing Board's April 1,1981, Third Prehearing Conference Order.
The first, styled a "Netice of Appeal," cbjects to the Licensing Board's denial t
cf intervencrs' notiens for a ED-day pcstponement of the l
-1/
l scheduled hearing date in this case. -
The second pleading is a " Notice of Appeal and Request for Directed Certification" cf the Licensing Scard's specification cf issue's set forth in its Seccnd Prehearing Conference Order (December 2, 1980) and j
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l reaffirmed in its Third Prehearing Conference Order.--
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Intervenors argue that they established " good cause" l
to warrant a substantial delay in the start of the hearing.
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specifically, they point to (1) the extended illness of 1
F::s. Peggy Buchcrn, described as "tne only representative j
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Intervencrs later suggested a 30-day postpene.v.ent as i
an alternative.
Tr. 379,.3E5.
The hearing is scheduled te cer.ence May
'981.
2
--/
Althcugh intervencrs add tus nis pleading to the sf-Practice, requests Commission, under the R:
e of this nature fall within our jurisdiction.
See 10 C.F.R. 2.715(i), 2.7 85 (b) (1) ; Censu..ers Power Co.
(Midland Plant, Units 1 and 2), ALAB-382, 5 MRC 503, 604 n.1 (1977).
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3-cf [CEU) with the expertise and experience to serve as intervenor in these proceedings;" (2) the unexpected with-drawal of CCANF's legal counsel two weeks before the Third Prehearing Conference; and (3) the unavailability during "ay of CCAN 's representative (Mr. Lanny Sinkin). Inter-venors contend that the Licensing E:ard's refusal to dela '
the hearing in view of these factcrs " adversely impacts the c.oal of a com-lete record in the initial hearine. bv restricting r
the ability of intervenors to prepare for and participate in the hearing."
They also assert that the Board gave too.nuch weight to hearing room availability and eersonal scheduling conflicts in devising the hearing schedule.
In their second pleading, intervenors argue that the Board's delineation of the issues under consideration in the upcoring initial hearing denies them certain relief "specifi-cally mandated" by the Cc=rissien ir response to a prior recuest of intervenors.
See CLI-ED-32, 12 N?.C 2E1 (1980).
In that proceeding, intervenors recuested a hearing on an order issued by the Commission's Director of the Of fice of Inspection and Enforcement, directing applicants te show cause whv s a f e tv. -
related construction activities at South Texas should not be halted pendinc modification of certain operations and procedures.
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4 The' Commission denied intervenors' hearing recuest but
- c. ranted them the alternative relief cf litic.atine. the "c.ualitv.
assurance /cuality control" (CA/OC) issues they raised in this operating license adjudication.
The Commission further ordered the Board assigned to the licensing proceeding to expedite i
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the hearing en the cuality centr:1-relatef issues and to issue 1
7.n early, separate decisicn en this matter.
Id. at 291-292.
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Pursuant to that order, the Licensing Board held a c. rehearine I
conference and formulated the OA/QC issues that would be the focus of the excedited hearinc.
Second Frehearine Conference Order, Attachment;.see also Third Prehearing Conference Order at E-12.
Intervenors contend that the issues as framed bv t
the Licensing Board improperly deal with applicants' alleged t
remedial activities.
They assert that the relief that the Commission granted them permits consideration in the separate, l
ex.cedited hearine. of oniv. the at.elicants' c.ast actions.
Ecth the N?.: staff and the applicants c cose intervenors' t
recuests, primarily on the ground that intervencrs have failed I
i to show the " exceptional" circumstances ne:essary to warrant j
l interlocutorv. review of either rulinc..
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The Commission's Rules of Practice prohibit appeals of
-l interlocutorv licensine. board ruline.s such as those involved here.
We will therefore treat both of s
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intervenors' filings as requests for discretionary interlocu-tery review via directed certification.
See 10 C.F.R. 2.718(i) and 2. 755 (h) (1).
Such reques s, n: wever, are granted infrequently "and then cnly when a licensing beard's action either (a) threatens i t.u.e party advers e., y a.,.,ectec wit.a treciate and serious irrepara-c-
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Public Service Electric and Gas Co. (Salem Statien, Unit 1), ALA3-582, 11 NRC 533, 53E (1980), and cases cited.
Intervencrs have not satisfied these criteria as to either cf their requests.
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I Intervenors ask us to review and overturn the Licensing Board's denial of a postponement of the CA/OC hearing.
But as we have stated previous 1v, i
. we enter the scheduline thicket I
cau:icusly.
We are inclined'to do so l
cniv to entertain a clair that a board t
anusec its discre icn bv settine a nearing i
senecule that decrives a. car:v c:. its rie.nt t
to procedural due process.
1 Public Service Co. cf Indiana, Inc. (Marble Hill Station,
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Units 1 and 2), ALA3-459, 7 NRC 179, IEE (1978).
See also I
i Public Service Co. of New Earpshire (Seabrcok Station, Units i
1 and 2), ALAS-295, 2 NRC 668, 669-670 (1975).
Moreover, we j
are particularly loath to interfere with a licensing board's i
denial of a request te delay a proceeding where, as here, the j
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initial hearine. will be "seriousiv. restricted."
As noted above,
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n cf CE"'s representative, the withdrawal of CCANP's counsel, and
- t. e unavailability cf CCASP's representative to prepare for the May hearing.
Yet balanced against these considerations are the following facts:
(1) intervenors have known since November 19, 1980, that the hearing would commence in early Ma.v 19 81 and that alterations to the schedule would be dis-
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In this regard, we note that CCANP recently filed with us
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a pleading in another pending " appeal" involving South Texas, signed by a representative other than Mr. Sinkin and showing an attorney "of counsel" (CCANP's " Opposition tc 5?.C's 'Sctice cf Appeal and List cf Exceptions ' and r
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Tr. 380.
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(3; the parties will have had almost two full months between the Ecard's cral ruling (at the Third Frehearing Conference) l denying 'the postpcnerent and the first cav. c: hearing, and l
(4) perhaps rest important, the Cc==ission ordered this hearing t
te he e>:pedited al= cst seven =cnths age.
We cannet say t:.ec t.e
- censing Ecard abused its dis-cretion cr ceniec intervencrs cue process in weighing these co=peting interests and devising a schedule that necessarily takes account cf other exigencies (such as hearing roor and judge availability). --.c /
Intervencrs have failed to show that the Beard's hearing schedule will either cause them "immediate i
and serious irreparable harn" or affect "the basic structure of the proceeding in a pervasive or unusual manner."
Under 1
these circumstances, our intervention in this scheduling dis-i a
putc is not justified.
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We must si=ilarly deny intervencrs' request for review of che Licensing 3 card's specification cf issues for censid-f eratien in the OA/OC hearing. --6/
This is yet another p-a-
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i cedural matter within the Licensing Ecard's discretien, not i
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--5/
The Board also made numerous efforts to accommodate
.intervenors' needs in setting the hearing schedule.
i Tr.
359, 391, 393-396.
Moreover, while denying a delay in the hearing, it cranted intervenors' recuests to file its witness lists cut of time.
Third Prehearing Ccnference Order at 6.
6/
The Licensing Board expressly denied intervenors' motion j
to certify this cuestion to us.
Third Prehearing Conference Order at 11.
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warranting our interference absent a showing of the exceptional circunstances specified in Salem, supra.
And again, intervenors i
have failed to demonstrate such circumstances exist here.
As we understand intervenors' argument, their principal c _ " e -..d....-
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than the Commission intended in its September 1980 order.
Intervencrs contend that this action thus " denies [them)' relief specifically randated bv. the Com ission in said Memorandum and i
V Order."
Seyond this generalized assertion, however, intervenors f ail to explain exactly how the 2 card's statement of issues results in such a denial of relief and consecuently "immediate and serious irreparabic harm. "
i Assuming arcuendo that the Board's issues do broaden the i
intended scope of the hearing ordered by the Co==ission,--9/
we do nct see c.;w this denies intervenors, either in f act or in effect, the separate, expedited hearing on their CA/QC issues.
The Licensing Board has not issued any final ruling on applicants' i
CA/QC program, and intervenors will be free to pursue their re-
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x lated cententiens and issues at the hearine.
This is neither s
'immediate nor serious irreparable harm.
'ioreover, we perceive I
~~7/
In view of our denial of the recuest for directed certi-fication, we express no judgment on whether the Ev :d's ruling is consistent with the Commission's order.
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i no pervasive or unusual affect on the basic structure of
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i the hearing as a result of an alleged brcadening of the CA/QC l
issues.
interrenors' recuest for review cf the Scard's delineation of issues in this special hearing is analegous to a recuest fer review of a licensing board's rejecticn of some, but not all, of a party's contentions advanced in connection with its i
petition to intervene.
As we pointed out in Texas Utilities Generating Cc. (Comanche Peak Steam Electric Station, Units 1 i
and 2), ALA3-599, 12 NRC 1, 2 (19 3 0 )',
this type of appeal "is l
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unauthorized by the Commission's Rules of Practice" since it does not dispose of the petition in its entirety.
See 10 C.F.R.
~
r 2.714a.
But, as we also noted, a carty ac.c.rieved by such board action can raise the rejection of these contentions on appeal from the board's initial decision.
12 NRC at 2 n.l.
The same is true in this case.
If indeed the Board's specification of issues is at cdds with the Commission's direction and ultimately causes harn to intervencrs, they will have everv. co..co rtunit.v to challenge the Board's partial initial decision -- issued after the hearing -- en appeal. --E/
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Houston Lichtinc & Power Co. (Allens Creek Station, Unl s 1 and 2), ALA3-301, 2 NRC 853, 854 (1975).
See also Third Prehearing Conference Order at 11.
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In su.r., intervenors have failed to demonstrate -- and w e a-e
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wot:: d warran: the c::ercise of discretionary review, via directed certification, of the two procedural rulings challenged
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certi!1 Cat 10n is Cen1EC.
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- heir request Cr CirecteO It is s o O R D E F.I D.
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C. JQn B1snop Secretary to the Appeal Board
~~9/
Still pending our consideration in this case are the staff's " Notice of Appeal and List cf Exceptions" and
" Motion for Directed Certification," which relate to 4
a separate Licensing Board ruling.
- -