ML20058J735

Response Opposing Interlocutory Review Sought by Applicants & NRC in Response to Aslab 820719 Order or Alternatively, to Affirm ASLB Rulings & Remand Matter to ASLB for Further Proceedings.Certificate of Svc Encl

ML20058J735
Person / Time
Site:	Catawba
Issue date:	08/05/1982
From:	Guild R GUILD, R., PALMETTO ALLIANCE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8208110191
Download: ML20058J735 (13)

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UNITED STATES OF AtiERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE AT0f11C SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

DUKE POWER COMPANY, et al. ) Docket No. 50-413

) 50-414 l (Catawba Nuclear Station. )

Units 1 and 2) )

s 1

PALMETTO ALLIANCE' RESPONSE IN OPPOSIT10'!

TO INTERLOCUTORY REVIEW i

August 5, 1982 Robert Guild 314 Pall Mall Columbia, South Carolina 29201 (803)252-0929 Counsel for Palmetto Alliance e aoomomog gs

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 No. 50-413

) 50-474 (Catawba Nuclear Station, )

Units 1 and 2 )

PALMETTO ALLIANCE RESPONSE IN OPPOSITION TO INTERLOCUTORY REVIB4 At the direction of the Appeal Board in its July 19, 1982 Order Inter-venor Palmetto Alliance hereby responds in opposition to the interlocutory review sought by Applicants Duke Power Company, eti al. , and the NRC Staff.

Palmetto Alliance urges the Appeal Board to decline the referrals made by the Licensing Board at the behest of the Applicants and Staf f; or, in the alter-native, to affirm the Licensing Board rulings so referred and remand this matter to that Board for further proceedings.

l The Appeal Board's longstanding teachings in Mississippi Power and Light Company, (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973),

control both questions to which this Board invited the appellants' attention:

the Licensing Board analysis under the Commission's contentions rule and the availability of interlocutory review of that analysis now. The continuing vitality of Grand Gulf was only recently confirmed by the Commission itself in contrasting the low threshold showing required for admission of Intervenor contentions with the requirements for exploration at final hearing or for their

adoption as licensing board issues, sua sponte. Texas Utilities Generating Company, et. al. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1114 (1981). The lesson of Grand Gulf reiterated by the Commission in Comanche Peak is that "all an intervenor need do to support admission of a contention is set forth the basis for the contention with reasonable speci-ficity," 14 NRC at 1114, and not " detail the evidence which will be offered in support" after discovery and summary disposition. Grand Gulf, supra, 6 AEC at 426. The Appeal Board's Grand Gulf decision also makes clear that, except-ing only upon a proper referral, no interlocutory review of contention ques-tions is permitted any party unless on a petition to intervene which is wholly denied or a claim that such petition should have been wholly denied. Otherwise the challenge by either an aggrieved Intervenor (for whom all contentions save one may have been rejected) or by an aggrieved Applicant (who must face dis-covery and hecrings) must await an appeal of the initial licensing decision.

Id. 6 AEC 425. Neither Applicants nor NRC Staff even cite to Grand Gulf in their papers attacking the decision of which they seek review.

Indeed, ironically, almost a decade ago Duke Power Company was instructed l by this Appeal Board in the same lessons of Grand Gulf which the appellants neglect today. Duke Power Company, (Catawba Nuclear Station, Units 1 and 2),

ALAB-150, 6 AEC 811 (1973). There, an appeal from the construction permit licensing board ruling on contentions and intervention was rejected as "on its face, so completely devoid of possible merit as to make it difficult to under-stand why it was filed." Id. 6 AEC at 812. Reflective of the " lack of sub-stance" of the appeal was the Applicant's failure to "even allude to" Grand l Gulf, "let alone explain why it is not dispositive here." Id. The Appeal Board's admonition to Duke in 1973 bears repetition and application now. A 2

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party and its counsel are bound to the avoidance of a patently groundless appeal which, whether or not so intended, can serve only the purpose of delay and/or the imposition of an unwarranted burden upon both our docket and the tina and pocketbooks of the other parties to the proceeding.

Id. 6 AEC at 811. Such a case is once again presented in the form of this interlocutory appeal.

Within the four corners of Grand Gulf can also be found Appeal Board approval for the exercise of broad latitude by the licensing board which

" grants an intervention petition but reserves decision on some of the contentions contained therein pending further particularization by the petitioner," Id. , 6 AEC at 423; and a concrete application of the contention rule's specificity standard which makes clear the conservative employment of that standard by this Licensing Board to the Intervenor contentions in this proceeding.

The contention approved there reads in full:

the alternatives of conserving electricity or utilizing other methods of producing energy have not been adequately considered.

6 AEC at 423. The basis for the contention was supplied by petitioner's counsel at the prehearing conference:

the amounts expended by the applicant on advertising greatly exceeded (by a factor of 11) that devoted to research and development, and that he intended to introduce evioence that there are geothermal sources in the Middle South Utilities System area that could be utilized.

Id. The Appeal Board rejected arguments by applicant and staff that the contention is defeated by contrary factual claims in the environmental report and draft envircnmental statement or by petitioner's failure to ' buttress' its allegations regarding geothermal sources or indicate their ' feasibility' as an alternative to the plant.

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...(w)e stress again that, in passing upon the question as to whether an intervention petition should be granted, it is not the function of a licensing board to reach the merits of any contention contained therein. Moreover, Section 2.714 does not require the petition to detail the evidence which will be offered in support of each contention. It is enough that, as here, the basis for the contention respecting the inadequacy of the consideration of alternatives to tha construction of this plant is identified with reasonable specificity.

Id. 6 AEC at 426.

The actions by the Licensing Board below in admitting but cne contention unconditionally, twenty-five contentions subject to specified conditions of later particularization, and rejecting twenty-six for lack of specificity or an non-litigable under Commission rules can hardly be viewed as an over generous application of the contentions rule under the line of authority represented by Grand Gulf.

In its flemorandum and Order of July 1,1982, the Appeal Board observed:

(W)e are strongly disinclined to undertake interlocutory review of licensing board determinations on the admissibility of contentions. Whether there is sufficient justification to put that reluctance aside in this instance is problenatic at best.

It nonetheless invited the Applicants and Staff to address both the merits of the rulings objected to and the " existence of extraordinary cause for acceptance of the referral." The Board noted expressly that such extraordinary cause was not constituted by (T)he mere fact that interlocutory review might obviate the need to litigate the conditionally admitted contentions.

This same consideration is present whevever contentions are admitted over objection.

From the submission of the NRC Staff it is clear that no such extraordi-nary cause is present here:

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the primary practical impact of these rulings on this proceeding is to permit discovery to coninence on contentions that are based on challenges to documents which do not yet exist and based on generalized apprehensions about the quality of plant equipment and construction.

NRC Staff Brief at p. 21. This ' burden' of litigating conditionally admitted contentions does not warrant interlocutory review.

As the Licensing Board noted, "all but two of the Intervenors' fifty-two proposed contentions are opposed by the Applicants, the Staff, or (in most cases) by both." Memorandum and Order, March 5,1982, p. 3. "(B)y far the most frequent basis for objection by both the Applicants and the Staff is an alleged lack of specificity in the contention. In some cases, we find this objection to be well taken. But in others where we also find a lack of specificity, we nevertheless reject that objectior at this stage of the proceeding because of the limited information presently available to the Intervenors. " Id. at p. 4.

The Board below proceeded to fashion a standard of specificity for appli-cation to each proposed contention on the basis of the information then available to Intervenors on the specific subject. Where the subject was addressed in l

l the Applicants' Final Safety Analysis Report or Environmental Report, Intervenors l

were expected to reflect such information in pleading their contention and I its basis. Contentions which, in the Board's judgment, did not adequately address the FSAR and ER information were rejected on grounds of lack of speci-l ficity.

For example, the Board rejected Palmetto Alliance contention no. 20 deal-ing with the ' ALARA' requirements of 10 CFR 20.1 for failure to specifically l

question the Applicants' ALARA program described in its FSAR. Id. p. 30.

l The proposed contention read:

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20. The license should not be granted until Applicants have demonstrated that radiation exposure levels will be maintained as-low-as-reasonably-achievable as required in 10 CFR 20.1. The FSAR does not adequately consider occupational radiation exposures to be expected from either the normal operation of Catawba or that which may occur during abnormal occurence, severe accident, or main-tenance once thought unusual but now understood to be reasonably expectable.

Catawba utilizes Westinghouse steam generators which have shown a generic tendency to denting, cracking, leaking and rupturing.

Extensive repairs at a number of plants have been required as well as complete replacement of steam generators at Surry Power Station 1 and at Turkey Point Plant, Units 3 and 4. Experience and estimates of steam generator replacement occupational exposures have ranged from 1,730 man-rems / unit to 5,840 man-rems /unlt (NUREG/CR 0199, NUREG 09 2,

p. 4-1, NUREG 0756, pp. 2-6,7). Steam generator repairs and/or replacement at Westinghouse reactors have become so common that they must be assumed as normal maintenance.

Likewise premature embrittlement of reactor vessels and loosening and loss of reactor neutron shield bolting will result in increased occupational exposures.

This contention was rejected as insufficiently specific! Palmetto Alliance has objected to this Board ruling. Palmetto Alliance and Carolina Environmental Study Group Responses and Objections to Order Following Prehearing Conference, March 31, 1982, p. 20. It can hardly be questioned that the standard of specificity applied by the Licensing Board was most stringent.

With respect to contentions on subjects where infonnation was compara-tively lacking the Licensing Board reserved the application of this same i

stringent standard for revised contentions required to be filed within i 30 days of receipt of the relevant document. Order of March 5, supra, at 12.

Finally, with respect to several contentions "at best only marginally acceptable from the standpoint of specificity" the Board directed particulari-zation after a limited 90 day discovery period with revisions due originally July 6, 1982. Id., at 17. Palmetto Alliance contentions 6, 7 and 18 were 6

1 described as concerning "the actual safety of construction and operation of  !

the Catawba plant, issues that are at the core of our responsibilities as an operating license board." Id. Palmetto objected to the Board requirement of further specifications of its contentions No. 6, 7, 18, 40 and 43, and asserted their adequacy as plead. Palmotto Objections, at p. 3. In the meantime, however, Palmetto Alliance attempted to shoulder the burden of revision placed on it through undertaking discovery. The Applicants and Staff - who bore no such burden - launched their discovery efforts to which Palmetto was fully responsive - disclosing all it knew on such subjects as quality assurance deficiencies known to former construction workers and emergency diesel generator complaints from a since-deceased engineer. See, Palmetto Alliance Responses to Applicants' First Set of Interrogatories and Requests to Produce, April 28, 1982.

Applicants served 441 " General" and " Specific" interrogatories together with requests for production of "any and all documents, or whatever description, identified in responses to Applicants' interrogatories." Applicants and Staff have provided no answers whatever to Intervenor discovery, interposed objections, sought and were granted a stay of discovery " pen' ding final resolution by the Licensing Board, Appeal Board or Commission itself, if necessary, of their and NRC Staff objections to the Licensing Board's March 5, 1982 Memorandum and Order." Applicants' Objections, May 10, 1982. The July 6, 1982, deadline for revisicn of these contentions has come and gone pending this interlocutory appeal.

The Licensing Board's approach to Intervenor pleading is wholly consis-l tent with, if not somewhat more stringent than, the framework approved by the 7

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e Commission in Wisconsin Electric Power Company, eti al., (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928 (1974) and by the Court of Appeals in BPI v. AEC, 502 F.2d 424 (1974):

...the statement of contentions is analogous to good pleading in civil cases, ie. the allegations must be reasonably specific.

Id. 502 F.2d at 428. .

The Appeal Board has elaborated on the closeness of this analogy to pleading under the federal rules in Houston Lighting and Power Company, (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565,10 NRC 521 at 524, 525:

We believe that a contention, like a complaint in federal court, is intended to reflect what a party intends to prove on the merits but not an argument as to why his pleadings shculd be entertained over his opponent's as yet unstated objections. Thus, when a defendant moves to dismiss a complaint (see, e.g. Rule 12(b)

F.R.C.P.), a plaintiff is - and must be - allowed the opportunity to respond to the motion.

By the same token we believe that at this stage a challenge to a contention is not like an answer to a complaint. An answer is not followed promptly by any ruling by the court, much less one on the validity or merits of the complaint.

Insofar as contentions are concerned, the Intervenors must be heard in response because they cannot be required to have anticipated in the contentions themselves the possible arguments their opponents might raise as grounds for dismissing them. In this respect too, contentions are like federal court complaints... Compare 10 CFR 2.714(b)

• with Rule 8(a) F.R.C.P.

Rule 8(a)(2), Federal Rules of Civil Procedure, embodies the simplified and reformed General Rules for Pleading. Any pleading is to represent a short and plain statement of the claim showing that the pleader is entitled to relief.

Id.

At the present stage of NRC pleading practice, analogous to the decision on a Rule 12(b), F.R.C.P. motion to dismiss for failure to state a claim upon whicn relief can be granted, Allens Creek, supra, 8

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...a complaint (read contention) should not be dismissed for insufficiency unless it appears to a certainty that plaintiff (read: intervenor) is entitled to no relief under any state of facts which could be proved in support of the claim.

ftore's, Federal Practice, Paragraph 8.02.

Professor Moore suggests the followiiig considerations be weighed in passing on the sufficiency of "a pleading that is on the borderline:"

(1) At what stage of the action is the objection raised?

(2) Are the prima facie elements of the claim or defense stated?

(3) If these are stated, is the statement fair notice to the adverse party?

(4) Is it feasible to require more particularity?

Id. Paragraph 8.13.

It should be apparent that the Licensing Board below employed just these sorts of considerations, in a balanced and responsible manner, in passing on the sufficiency of the contentions plead under the circumstances of the proceeding as it now stands. Such an analysis and exercise of discretion has long been the course required by Commission decisional authority. Grand Gulf, supra.

The Supreme Court in Conley v. Gibson, emphasized the proper role of pleadings in federal practice:

...the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a 'short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such Simplified l

) ' notice pleading' is made possible by the liberal opportunity for dis-covery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues...The Federal Rules '

reject the approach that pleading is a game of skill in which one i

I misstep by counsel may be decisive to the outcome and accept the prin-ciple that the purpose of pleading is to facilitate a proper decision on the merits.

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355 US 41, 47-48, 78 S.Ct. 99, 2 L Ed 2d 80 (1957). No lesser standard should apply in Nuclear Regulatory Commission practice.

Conclusion For the foregoing reasons Intervenor Palmetto Alliance respectfully urges the Appeal Board to decline the referrals made at the behest of Applicants and NRC Staff; or, in the alternative, to affirm the Licensing Board rulings so referred and to remcnd this matter to that Coard for further proceedings.

s August 5, 1982 \

Robbrt Guild 314 Pall Mall ()

Columbia, South Carolina 29201 (803)252-0929 Counsel for Palmetto Alliance 10 i

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9 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ttMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Phtter of )

)

DUKE POWER COMPANY, eti al. ) Docket No. 50-413

) 50-414 (Catawba Nuclear Station, )

Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copies of Palmetto Alliance Response in Oppo-sition to Interlocutory Review in the above caption matters, have been served upon the following by deposit in the United States mail this 6th day of August, 1982.

Alan S. Rosenthal, Chairman Dr. A. Dixon Callihan Atomic Safety and Licensing Appeal Union Carbide Corporation Board Panel P.O. Box Y U.S. Nuclear Regulatory Commission Oak Ridge. Tennessee 37830 Washington, D.C. 20555 William L. Porter, Esq.

Thomas S. Moore Albert V. Carr, Jr. , Esq.

Atomic Safety and Licensing Appeal Ellen T. Ruff, Esq.

Board Panel Duke Power Company U.S. Nuclear Regulatory Commission P.O. Box 33189 Washington, D.C. 20555 Charlotte, North Carolina 28242 Howard A. Wilbur Richard P. Wilson, Esq.

Atomic Safety and Licensing Appeal Assistant Attorney General Board Panel State of South Carolina U.S. Nuclear Regulatory Commission P.O. Box 11549 Washington, D.C. 20555 Columbia, South Carolina 29211 James L. Kelley, Chairman Dr. Richard R. Foster Atomic Safety and Licensing Board P.O. Box 4263 Panel Sunriver, Oregon 97701 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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• Chairman J. Michael McGarry, III, Esq.

Atomic Safety and Licensing Board Debevoise & Liberman Panel 1200 Seventeenth St., N.W.

U.S. Nuclear Regulatory Comission Washington, D.C. 20036 Washington, D.C. 20555 Jesse L. Riley reorge E. Johnson, Esq. 854 Henley Place Office of the Executive Legal Charlotte, North Carolina 28207 Director U.S. Nuclear Regulatory Commission Scott Stucky Washington, D.C. 20555 Docketing and Service Station U.S. Nuclear Regulatory Commission Chairman Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Henry A. Presler Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28207 4

Robert Guild '( )

Counsel for PaMetto Alliance

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