ML20064N863
| ML20064N863 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 02/11/1983 |
| From: | Cowan B ATOMIC INDUSTRIAL FORUM |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8302160359 | |
| Download: ML20064N863 (15) | |
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DOCKETED USNRC
'83 FEB 15 A11 :27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION - - -
Before the Commission In the Matter of :
DUKE POWER COMPANY, et al. : Docket Nos. 50-413
- 50-414 (Catawba Nuclear Station, :
Units 1 and 2) :
AMICUS CURIAE BRIEF OF THE LAWYERS COMMITTEE STEERING GROUP OF THE ATOMIC INDUSTRIAL FORUM, INC.
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Barton 2. Cowan, Esq.
Chairman, AIF Lawyers Committce Of Counsel:
John R. Kenrick, Esq.
Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 Dated: February 11, 1983 (412) 566-6000 r302160359 830211 PDR ADOCK 05000413 ens e .
O PDR ))
Table of Contents Table of Citations . . . . . . . . . . . . . . . . . . i Introduct. ion . . . . . . . . . . . . . . . . . . . . . 1 Interest of Amicus . . . . . . . . . . . . . . . . . . 4 Discussion . . . . . . . . . . . . . . . . . . . . . . 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . 11 O
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f Table of Citations Page Cases BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974). . . . . . . . . . . . . . . . 6, 7 Easton Utility Company v. Atomic Energy Commission, 424 F.2d 8.47 (D.C. Cir. 1970) . . . 6 Siegel v. AEC, 400 F.2d 778 (D . C . Cir. 1968) . . . . 6 NRC Adjudications Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2) , ALAB-687, NRC (August 19, 1982). . . . . . . . . . . 2, 8 Statute Atomic Energy Act of 1954, 42 U.S.C. S 2239 (a) . . . . . . . . . . . . . . Passim Regulation 10 C.F.R. 5 2.714. . . . . . . . . . . . . . . . . . Passim ,
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AMICUS CURIAE BRIEF OF THE LAWYERS COMMITTEE STEERING GROUP OF THE ATOMIC INDUSTRIAL FORUM, INC.
Introduction The Lawyers Committee Steering Group.of the Atomic Industrial Forum, Inc. (" Lawyers Committee") files this brief.
as amicus curiae in response to the invitation of the Com-mission contained in the Commission Order dated December 23, 1982 (" Commission Order"), in the above-captioned case invit-ing interested persons to submit amicus briefs on the follow-ing two issues:
"1. Does section 189a. of the Atomic Energy Act of 1954, as amended, require an Atomic Safety and Licensing Board to give controlling weight to the good cause factor in 10 CFR 2.714 (a) (1) (i) in deter-mining whether to admit a late-filed contention that could not be filed in a timely manner because the ' institutional .
unavailability' of licensing-related
- documents precluded the timely formula-l tion of that contention with the requisite specificity?
l l 2. Is there ' good cause' for filing a late contention when the reason given for late filing is the previous ' institutional unavailability' of an agency document, e.g. the FES, but the information relied on was available early enough to provide the basis for a timely filed contention, e.g. in an applicant's environmental re-
, port?"
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The questions posed in the Commission Order arise frem Commission review of the Atomic Safety and Licensing Appeal Board decision in Duke Power Cc apany, et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC (August 19, 1982) ("ALAB-687"), in which the Appeal Board ruled on certain matters relating to the standard to be applied in determining whether to admit non-timely filed contentions under the provisions of 10 C.F.R. S 2.714. In ALAB-687 the Appeal Board concluded that a licensing board is not authorized to admit conditionally for any reason a contention which falls short of the requisite specificity required by regulations and Commission decisiens. However, the Appeal Board went on to hold that S 2.714 (b) of Commis-sion regulations cannot "bar the later assertion of a new contention founded upon information not in existence or publicly available (at the time when such contention would l otherwise have had been filed] . . . but which is nonethe-less an essential element of the license application or the staff's prehearing review" (ALAB-687, slip op, at p.11) .
In such a situation, where ont or more licensing documents which bear directly upon a licensing action was not available to an intervenor at the time when contentions would otherwise have been due, the Appeal Board established a three-part test to be applied in determining whether to admit a late-filed contention, ruling:
". . . as a matter of law a contention can-not be rejected as untimely if it (1) is wholly dependent upon the content of a particular document; (2) could not there-fore be advanced with any degree of speci-ficity (if at all) in advance of the public availability of that document; and (3) is tendered with.the requisite degree of prompt-ness once the document comes into existence and is accessible for public examination."
(ALAB-687, slip op. -at p. 16)
Because the Appeal Board decision and the questions posed by the Commission in its Order have broad consequences in nuclear regulatory practice and are of significance to the bar, amicus files this brief.
Amicus believes that with respect to the first issue posed by the Commission, Section 189a. of the Atomic Energy Act of 1954, as amended, does not require an Atomic Safety and Licensing Board to give controlling weight te the good cause factor in 10 C.F.R. S 2.714 (a) (1) in deter-mining whether to admit a late-filed contention under the l circumstances posed in the question. Rather, amicus believes l
that the broad responsibility and authority reposed in the Commission under the Atomic Energy Act permits the Commis-sion to establish various appropriate factors and the weight to be accorded to each in determining whether a late-filed l
l contention should be admitted in a proceeding. In the exer-cise of its judgment and authority under the Atomic Energy Act, the Commission may, of course, determine that a licensing l
l board should give controlling weight to the good cause factor in determining whether to admit such late-filed.
contention, but it is not compelled to do so by Section 189a. of the Atomic Energy Act.
With respect to the second issue posed by the Commission, amicus believes that where information relied on was available early enough to provide the basis for a 3 timely-filed contention, no " good cause" exists for filing a late contention because of alleged previous " institutional unavailability" of an agency document.
Interest of Amicus The Atomic Industrial Forum, Inc. (" Forum") is an association of over 600 domestic and overseas organizations interested in the development of peaceful uses of nuclear energy. Its members include electric utilities, manufac-turers, architect-engineers, consulting firms, law firms, mining and milling companies, and others who design, build, operate and service facilities for the production of nuclear fuel and the generation of nuclear power. Duke Power Company is a member of the Forum. The Lawyers Committee is a standing committee of the Forum whose membership comprises a wide spec-trum of lawyers with extensive experience in the law relating
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to nuclear regulation and practice. Many members are ac-tively engaged in practice before the Nuclear Regulatory Commission and its licensing and appeal boards.
Discussion I. Under the Atomic Energy Act the Commission Has Authority to Determine What Factors should Be Given Controlling Weight in Deciding Whether to Admit Late-Filed Contentions.
A. Section 189 does not mandate that controlling weight be given to the good cause factor.
Section 189 of the Atomic Energy Act of 1954, as amended, does not require an Atomic Safety and Licensing Board to give controlling weight to the good cause factor set forth in 10 C.F.R. S 2.714 (a) (1) (1) in determining whether to admit a late-filed contention that could not have been filed in a timely manner because of institutional -
unavailability of a license-related document precluding such timely formulation with requisite specificity. Rather, the Atomic Energy Act provides the Commission with broad authority to determine what factors to consider and the weight to be given to such factors in connection with admissibility of late-filed contentions. Under this authority the Commission could given controlling weight to the good cause factor but is not mandated to do so.
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Section 189 of the Atomic Energy Act provides in part: "the Commission shall grant a hearing upon the re-quest of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding." As stated by the United S ates Court of Appeals for the District of Columbia Circuit in BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974), Section-189 does not confer r.a automatic right of intervention on anyone.
In that case, the Court sustained a denial of a petition to intervene in a Ccmmission licensing proceeding where such denial was based upon a failure to identify specific conten-tions with the requisite particularity as required by Com-mission regulations. In upholding the Commission regulations the Court noted the unique and broad responsibility granted to the Commission to determine how it should proceed to achieve its statutory objective and concluded that this-broad mandate authorized the Commission to regulate the conditions under which intervention will be allowed. See also Siegel v.
AEC, 400 F.2d 778, 783 (D.C. Cir. 1968).
1 The question of the validity of Commission regulations re-lating to intervention also was considered by the Court in Easton Utility Company v. Atomic Energy Commission, 424 F.2d 847 (D.C. Cir. 1970), where the Court denied a late petition for intervention in the face of an argument that the intervenor had been relying on another participant to protect its interests and had decided to intervene only when such other participant determined not to carry forward
{ footnote continued on next page]
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The rationale of the Court of Appeals decision in BPI v. Atomic Energy Commission,~ supra, supports the view that the Commission may proscribe such standards as it deems appropriate with respect to admissibility of late-filed contentions, and the weight to be given to each such standard. There is no language in Section 189a.
of the Atomic Energy Act which' addresses the question of late-filed contentions or the standard to be applied when
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i determining whether such late-filed contentions are to be admitted. Accordingly, although the Commission has the authority to adopt a standard requiring a licensing board to give controlling weight related to the good cause factor,
- there is no mandate in.Section 189 (or'anywhere else in the Atomic Energy Act) that it do so.
Footnote 1 continued.
its opposition to the plant which was the subject of the -
license application. In that case the Court, after citing
- the brnad power granted to the Commission to adcpt rules to carry out the purposes of the Atomic Energy Act, found nothing in the record which challenged the reasonableness,
, necessity or propriety of the 1968 version of 10 C.F.R.
j S 2.714, which contained the time limitations and a " good
- cause" standard for exceptions thereto.
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Current Commission regulations provide for a balancing of five factors when ruling on a late-filed petition, 10 C.F.R.
S 2.714 (a) (1) (i-v) , the good cause factor being the first mentioned. The other four factors listed in the regulation, i however, also are important to a sound administrative pro-cess. Depending on the particular facts of a case, one or i more of those four factors may have substantial signifi-I cance, and may even be controlling. As noted in the NRC
[ footnote continued on next page]
B. The test developed by the Appeal Board is appropriate for determining whether
" good cause" exists for the_ admission of late-filed contentions in the con-text of institutional unavailability of a license-related document.
The Appeal Board held in ALAB-687 that when a late-filed contention is submitted and a claim is made that it is based upon a license-related document previously unavailable, it cannot be rejected as untimely if the con-tention " (1) is wholly dependent on the content of the particular eccument; (2) could not therefore have been advanced with any degree of specificity (if at all) in ad-vance of the public availability of that document; and (3) is tendered with the requisite degree of promptness once the document comes into existence and is accessible for public examination" (ALAB-687, slip op. at p. 16). Inherent in the issues raised by the Commission order is the question of the appropriateness of this three-pronged test established Footnote 2 continued.
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( Staff Brief (p. 13), no reported case has been identified in which a late-filed safety contention was rejected as untimely where good cause was shown. Hence, as the Staff l also noted, as a practical matter the use of the good l cause standard as interpreted by the Appeal Board in ALAS-687 may, as a practical matter, provide the same result as application of the five factors in S 2.714 (a) (1) .
However, the Commission may want to preserve the option of allowing a balancing of the five factors for the unusual l case where the factor of good cauce is outweighed by the other factors.
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by the Appeal Board. Amicus believes that the factors set forth by the Appeal Board are an appropriate formulation of the requirements which should be imposed for the estab-lishment of " good cause" for the late filing of contentions due to institutional unavailability of license-related documents. Inherent in the statement that a late-filed contention could not have been advanced with any degree of specificity (if at all) at a prior time is the concept that the institutionally unavailable document contains new information not previously available. If information re-lied upon in a late-filed contention was available earlier, the unavailability of a licensing document should not pro-vide any basis for not having filed a contention at an earlier time. See, infra, pp. 10-12. Accordingly, in connection with the application of the good cause factor l
in 10 C.F.R. S 2.714 (a) (1) when determining whether to admit a late-filed contention allegedly based on new in-1 l
formation in an " institutionally unavailable" licensing l document, the Commission should approve the three-part 1
test set forth in ALAB-687 which defines how good cause will be ascertained.
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II. No dGood Cause" Exists for Filing a Late Contention When There Is Previous Institu-tional Unavailability of an Agency Document If the Information kelied on Was Available Earlier.
Where information relied upon to formulate a con-tentior was available early enough to provide the basis for.a timely-filed contention, no good cause exists for L
filing a late contention based on previous " institutional unavailability" of an agency document. Any other rule would enable a party to defer filing of contentions until a very late stage in a licensing proceeding, thereby defeat-ing the desirable goal of early identification of issues to be decided in a proceeding. In most cases the overwhelm-ing majority of factual information becomes available through lengthy documents filed by the applicant and through drafts of documents prepared and issued by the Staff far in advance of issuance of final licensing-related documents such as the .
Final Environmental Statement or Final Staff Safety Evalua-tion. There documents normally provide more than sufficient information for a party to formulate contentions with the requisite degree of specificity. Nothing is to be gained in Commission practice to allow deferral of the filing of such contentions until after a licensing document has been
II. No " Good Cause" Exists for Filing a Late Contention When There Is Previous Institu-tional Unavailability of an Agency Document If the Information Relied on Was Available Earlier.
Where information relied upon to formulate a con-tention was available early enough to provide the basis for a timely-filed contention, no good cause exists for filing a late contention based on previous " institutional unavail-ability" of an agency document. Any other rule would en-able a party to defer filing of contentions until a very late stage in a licensing proceeding, thereby defeating the desirable goal of early identification of issues to be de-cided in a proceeding. In most cases the overwhelming ma-jority of factual information becomes available through lengthy documents filed by the applicant and through drafts of documents prepared and issued by the Staff far in advance of issuance of final licensing-related documents. These .
documents provide more than sufficient information for a party to formulate contentions with the requisite degree of specificity. In such circumstances, no prejudice would ac-crue to such party by a rule which requires formulation and timely filing of a contention prior to the availability of a previously unavailable licensing document. Nothing is to be gained in commission practice to allow deferral of the filing of such contentions until after a licensing document has been
issued where the licensing document contains or is based upon this previously available information.3 Conclusion Amicus believes that the requirement for timely filing of contentions is fundamental to an administrative 1y sound hearing process. Exceptions which permit late-filed contentions should be carefully and narrowly drawn and construed. Nothing in the Atomic Energy Act of 1954 requires the Commission to adopt any particular formulation of standards for late filing of contentions or to limit or give controlling weight to any particular factor, whether or not the reason asserted for such late filing is an alleged
" institutional unavailability" of a licensing-related document.
3 Amicus notes that in connection with safety issues the -
applicant carries the burden of proof and the adequacy of the Staff's evaluation is not the issue for decision.
Accordingly, allowing late-filed contentions based upon the previous unavailability of the Staff Safety Evalua-tion Report where such contentions seek to challenge the adequacy of the Staff review would be totally inappropri-ate. Although the situation is somewhat different with respect to environmental issues where the ultimate ques-tion is the adequacy of the Commission's Environmental Impact Statement, contentions seeking to raise the ade-quacy of the Staff environmental review also are inappro-oriate. Hearings before the Atomic Safety and Licensing moards are not intended to serve the function of provid-ing a check on the adequacy of reviews and evaluations performed by the NRC Staff, although in some instances they may incidentally accomplish that purpose. Hearings are designed primarily to resolve factual disputes and (footnote continued on next page]
Further, with respect to the " good cause" standard, nothing in the Atomic Energy Act of 1954 requires the Commission to accept a contention which would otherwise be untimely merely because a licensing-related document was previously institutionally unavailable if the underlying information relied on for the contention was otherwise previously avail-able.
Respectfully submitted, Barton Z. Coghh, Esq.'
Chairman, AIF Lawyers Committee Of Counsel:
John R. Kenrick, Esq.
Eckert, Seamans, Cherin & Mellott 42nd Floor, 600 Grant Street Pittsburgh, Pennsylvania 15219 ,
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Dated: February ?.1, 1983 Footnote 3 continued.
to determine whether with respect to safety issues the burden of proof on the applicant has been met and whether with regard to environmental issues the Environmental Impact Statement is adequate. In this regard it is note-worthy that the Commission's Environmental Impact State-ment is deemed modified by whatever actions may be taken by the Licensing Board, the Appeal Board and the Commis-sion in connection with their decisional process on license applications. This decisional process focuses on the sub-stantive environmental issues themselves, where properly raised, and not on adequacy of the Staff review.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of :
DUKE FOWER COMPANY, et al. :
(Catawba Nuclear Station, Units 1 : Cocket Nos. 50-413 and 2) : 50-414 CERTIFICATE OF SERVICE I hereby certify that copies of the " Amicus Curiae Brief of the Lawyers Committee Steering Group of the Atomic Industrial Forum, Inc." were served upon the persons listed on Attachment 1 to this Certificate of Service by deposit in the United States Mail (First Class), postage prepaid, this lith day of February, 1983.
h Barton Z. CoKp , Esq.
?AJYJ A4 Chairman, AIF Lawyers Committee l
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Service List DUKE POWER COMPANY, et al.
(Catawba Nuclear Station, Units 1 and 2)
Commissioner Nunzio J. Palladino Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Consissioner Victor Gilinsky U.S. Nuclear Regulatory Commission Nashington, D.C. 20555 Commissioner John F. Ahearne U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission i
Washington, D.C. 20555 Commissioner James K. Asseltine U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l
Thomas S. Moore Atomic Safety and Licensing _ Appeal Board Panel
! U.S. Nuclear Regulatory Commission -
l Washington, D.C. 20555 Howard A. Wilber
- Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James L. Kelley, Chairman Atomic Safety and Licensing Board Panel i U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. A. Dixon Callihan Union Carbide Corporation P.O. Box Y Oak Ridge, Tennessee 37830 l
[ Dr. Richard F. Foster P.O. Box 4263
! Sunriver, Oregon 97702
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[ Attachment 1
Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chairman Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George E.' Johnson, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Albert V. Cerr, Jr., Esq.
Duke Power Company P.O. Box 33189 Charlotte, North Carolina 28242 Richard P. Wilson, Esq.
Assistant Attorney General Stats of South Carolina P.O. Box 11549 Columbia, South Carolina 29211 Robert Guild, Esq.
P.O. Box 12097 Charleston, South Carolina 29412 Palmetto Alliance 2135-1/2 Devine Street Columbia, South Carolina 29205 Jesse L. Riley -
854 Henley Place Charlotte, North Carolina 28207 Henry A. Presler Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28207 Scott Stucky Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555 J. Michael McGarry, III, Esq.
DeBevoise & Liberman 1200 Seventeenth Street, N.W.
Washington, D.C. 20036