ML20069E811
| ML20069E811 | |
| Person / Time | |
|---|---|
| Issue date: | 08/31/1982 |
| From: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUREG-0386, NUREG-0386-S03, NUREG-0386-S03-D02, NUREG-386, NUREG-386-S3, NUREG-386-S3-D2, NUDOCS 8209270033 | |
| Download: ML20069E811 (85) | |
Text
-_
NUREG-0386 Supp. 3 to
)
Digest No. 2 l
United States Nucl ear Regulatory Commission Staff Practice and Procedure Digest Supplement 3 I
U.S. Nuclear Regulatory Commission Offico of the Executive Legal Director p* "%,,
l 882 Tu8ea 2
0386 R PDR
O NOTICE Availability of Reference Materials Cited in NRC Publications Most documents cited in NRC publications will be available from one cf the following sources:
- 1. The NRC Public Document Room,1717 H Street, N.W.
Washington, DC 20555
- 2. The NRC/GPO Sales Program, U.S. Nuclear Regulatory Commission, Washington, DC 20555
- 3. The National Technical information Service, Springfield, VA 22161 Although the listing that follows represents the majority of documents cited in NRC publications, it is not intended to be exhaustive.
Referenced documents available for inspection and copying for a fee from the NRC Public Docu-ment Room include NRC correspondence and internal NRC memoranda; NRC Office of Inspection and Enforcement bulletins, circulars, information notices, inspection and investigation notices; Licensee Event Reports; vendor reports and correspondence; Commission papers; and applicant and licensee documents and correspondence.
The following documents in the NUREG series are available for purchase from the NRC/GPO Sales Program: formal NRC staff and contractor reports, NRC-sponsored conference proceedings, and NRC booklets and brochures. Also available are Regulatory Guides, NRC regulations in the Code of Federal Regulations, and Nuclear Regulatory Commission issuances.
Documents available from the National Technical Information Service include NUREG series reports and technical reports prepared by other federal agencies and reports prepared by the Atomic Energy Commission, forerunner agency to the Nuclear Regulatory Commission.
Documents available from public and special technical libraries include all open literature items, such as books, journal and periodical articles, and transactions. Federal Register notices, federal and state legislation, and congressional reports can usually be obtained from these libraries.
Documents such as theses, dissertations, foreign reports and translations, and non-NRC conference proceedings are available for purchase from the organization sponsoring the publication cited.
Single copies of NRC draft reports are available free upon written request to the Division of Tech-nical Information and Document Control, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
Copies industry codes and standards used in a substantive manner in the NRC regulatory process are maintained at the NRC Library, 7920 Norfolk Avenue, Bethesda, Maryland, and are available there for reference use by the public. Codes and standards are usually copyrighted and may be purchased from the originating organization or, if they are American National Standards, from the American National Standards institute,1430 Broadway, New York, NY 10018.
$5.00 GPO Printers copy price.
NUREG-0386 Supp. 3 to Digest No. 2
, United States
! Nuclear Regulatory Commission Staff Practice and Procedure Digest Supplement 3 Manuscript Completed: September 1981 Date Published: August 1982 Offico of the Executive Legal Director p.S. Nuclear Regulatory Commission W:shington, D.C. 20555
,...c.,
E
I PREFACE This third supplement to the second edition of the NRC Staff Practice and Procedure Digest contains a digest of a number of Commission, Atomic Safety and Licensing Appeal Board and Atomic Safety and Licensing Board decisions issued during the period from January 1,1979 to December 31, 1980 interpre-ting the NRC's Rules of Practice in 10 C.F.R. Part 2.
The supplement, which is intended to be used as a " pocket-part" supplement to the Digest itself, includes a number of new subsections and topics not covered in the Digest.
The new subsections are noted in the index for the supplement.
The Practice and Procedure Digest and the supplements thereto were prepared by attorneys in the NRC's Office of the Executive Legal Director as an inter-nal research tool, Because of the Digest's usefulness to these attorneys, it was decided that it might also prove useful to members of the public.
Accordingly, the decision was made to publish the Digest and subsequent editions thereof and supplements thereto.
Persons using this Digest and supplements are placed on notice that they may not be used as authoritative citations in support of any position before the Commission or any of its adjudicatory tribunals. Further, neither the United States, the Nuclear Regulatory Commission nor any of their employees makes any expressed or implied warranty or assumes liability or responsibility for the accuracy, completeness or usefulness of any material presented in the Digest and supplements.
As with the Digest itself, the supplements are roughly structured in accord-ance with the chronological sequence of the nuclear facility licensing process as set forth in Appen.11x A to 10 C.F.R. Part 2.
Those decisions which did not fit into the structure are dealt with in a section on " general matters." Where appropriate, particular decisions are indexed under more than one heading. Some topical headings contain no citations or discussions.
It is anticipated that future supplements to the Digest will utilize these headings.
Office of the Executive Legal Director U. S. Nuclear Regulatory Commission l
i l
1
I INDEX PRACTICE AND PROCEDURAL DIGEST SUPPLEMENT NO. 3 PAGE I.
APPLICATION FOR LICENSE / PERMIT 3.
Applica tion for Early Si te Review.......................
1 4
Form of Application for Construction Permit or Operating License (new) 4.3 Te nn i n a t i o n........................................
1 7.
Notice 7.1 Federal Register...................................
1 8.
StaffReview............................................
I
- 10. Abandonment of Application..............................
1 II. PREHEARING MATTERS 1.
Scheduling of Hearings D
1.1 General............................................
2 1.2 Public Interest Requirements.......................
2 1.5 Postponement of Hearings 1.5(4)
Time Extensions for Cast Preparation.....
2 (new)lA. Necessity of Hearing....................................
3 2.
Place of Hearing 2.3 Convenience of Li tigants...........................
3 3.
Issues for Hearing 3.1 Genera1............................................
3 3.4 I ssues not Addres sed by a Pa rty....................
4 3.5 Separa te Hearings on Special Issues................
4 (new) 3.6 Construction Permit Extension Proceedings..........
5 (new) 3.7 Issues for Hearing in Export Licensing Proceedings........................................
5 l
4.
Notice of Hearing 4.1 Contents...........................................
6 4.2 Adequacy...........................................
6 4.3 Fe d e ra l R eg i s te r...................................
6 5.
Prehearing Conferences l
5.4 Prehearing Conference Order 5.4(1)
Effect of 0rder..........................
7 111
PAGE 8.
Intervenor 8.2 Ne ed fo r Co u n s e l...................................
7 8.3 Petitions to Intervene 8.3(1)
General..................................
7 8.3 2 Pleading Requirements....................
8 8.3 4 Time Limits and late Petitions...........
8 8.3(4)(a) Time for Filing................
8 8.3(4)(c) Consideration of Untimely Pe ti tions.............
8 8.3(4)(d) Appeals from Rulings on La te In terventi on...........
12 (new) 8.3(41(e) Mootness of Petitions..........
13 8.4 Interest and Standing 8.4(1)
Judicial Standing........................
13 8.4(1)(a) Genera 1........................
13 8.4(1)(b) Standing of Organizations......
15 8.4(1)(c) Standing in Export Licensing Cases................
16 8.4(1)(d) Standing in Specific Factu al Si tua tions.............
17 8.4(2)
Di screti ona ry Intervention...............
18 8.5 Contentions of Intervenors 8.5(1)
Requirements.............................
19 8.5(3)
Requirement of Contentions for Purposes of Admitting Petitioner.........
20 8.5(4)
Contentions Challenging Regulations......
21 8.5(6)
Defective Contentions....................
21 (new 8.5 10)
Adequacy of Security Plan................
21 (new 8.5 11)
Timel i ness of Submi s si on.................
21 (new 8.5 12)
Material Used in Support of Contentions.,
22 (new 8.5(13)
Contentions Challenging Absent or Incompl ete Documents..................
23 (new) 8.5 A Condi tions on Grants of Intervention...............
23 8.6 Appeals of Rulings on Intervention 8.6(1)
Genera1..................................
23 8.6(2)
Standa rds for Reversa1...................
23 8.9 Cost of Intervention 8.9(1)
Financial Assistance to Intervenors......
24 (new) 8.11 Intervention in Remanded Proceedings...............
24 9.
Non-party Participation - Limited Appearances and Interested States 9.2 Non-party Interested States........................
24
- 10. Discovery 10.2 Discovery Rules iv
PAGE 10.2(1)
General..................................
25 10.2(3 Scope of Di scove ry.......................
25 l
10.2(5 Privileged Matter........................
26
'new) 10.2(6 Protective 0rders........................
26 new 10.2 {
Work Product.............................
27 new 10.2 i Upda ti ng Di scovery Responses.............
27 new 10.2 )
Interrogatories..........................
27
- 10. 3 Di scov e ry Aga i n s t the Sta f f........................
27 (new) 10.3A Responses to Di scovery Requests....................
28 10.4 Compelling Discovery 10.4(1)
General..................................
28 10.4(2)
Sanctions for Failure to Comply wi t h Di sc ove ry Orde rs....................
29 (new) 10.4(3)
Compelling Discovery From ACRS and ACRS Consultants.....................
29 10.5 Appeal s o f Di scovery Rul i ngs.......................
30 III. HEARINGS 1.
Licensing Boards 1.1 Ge n e r a l R o l e.......................................
30 1.2 Powers and Duties of Licensing Boards 1.2(1)............................................
30 1.4 Disqualification of a Licensing Board Member 1.4(1)
Motion to Disqualify; Requirements.......
32 (reti tled) 1.4(2)
Grou nds for Di squali fica tion.............
32 (new)1A. Export Licensing Hearings I A.1 Sc o pe o f Hea r i ng s..................................
33 2.
Hearing Scheduling Matters (new) 2.7 In Camera Hearings.................................
33 4
Summary Disposition 4.1 General............................................
33 4.3 Motions for Summary Disposition 4.3(3)
Contents of Motions and Responses........
34 (new) 4.3(4)
Content of Summary Disposition Order.....
34 4.4 Summa ry D i s po s i t i o n Ru l e s..........................
34 4.5 Appeals From Rulings on Summary Disposition........
35 6.
Burden and Means of Proof 6.1 Duties of Applicant / Licensee.......................
35 6.3 Specific Issues - Means of Proof
}
6.3(7)
Ma nag eme n t Ca pa bil i t y....................
35 v
PAGE 10.
Evidence 10.1 General............................................
35 10.0 Rules of Evidence 10.2(1)
Admissibility............................
35 10.2(6)
Government Documents.....................
36
- 11. Witnesses 11.1 Compelling Appearance 11.1(3)
ACRS Members.............................
36
- 11. 4 Boa rd W i tne s se s....................................
36
- 11. 5 Ex pe r t Wi tn e s se s...................................
36
- 13. Record 13.1 General............................................
37 13.2 Suppl emen ting Record by Af fidavi ts.................
37 13.4 Ma terial not Contained in Record...................
3/
14.
Interlocutory Review via Directed Certification.........
37 15 Licensing Board Findings l
15.1 General............................................
37 l
16.
Pes Judicata and Collaterei Estoppel....................
38 (new)17. Termination of Proceedings 17.1 Procedures.........................................
38 17.2 Pos t-Te rnina tion Au thori ty o f Commi s sion...........
39 IV.
POST-HEARING MATTERS 1.
Settlements and Stipulations............................
39 3.
Initial Decision 3.1 General............................................
39 3.2 Reconsideration of Initial Decision.............
39 4
Reopening Hearings 4.1 Genera'............................................
40 4.2 Motions to Reopen 4.2(1)
Time fo r Fi l i ng..........................
40 4.3 Grounds fur Reopening..............................
40 5.
Motions to Reconsider...................................
41 6.
Sua Sponte Review by the Appeal Board...................
41 V.
APPEALS 1.
General vi
PAGE (new) 1.0 Unpublished 0 pinions...............................
42 1.1 Right to Appea1....................................
42 1.2 Who Can Appeal.....................................
42 1.4 Time fo r Fi l i ng Appeal s............................
42 1.5 Matters Considered on Appeal 1.5(2)
Issues Raised for the First T!me l
on Appeal................................
43 1.5(5)
Consolidation Upon Consideration of Generic Issues........................
43 1.6 Appeal Board Actions 1.6(1)
Role of Appeal Board.....................
44 1.6(3)
Standards for Reversing Licensing Boa rd on Fi nd i ngs of Fac t................
45 1.6(5)
Immediate Effectiveness of Appeal Board Decision...........................
45 (new) 1.6( 7)
Disqualification of Appeal Board Member..
45 2.
Stays Pending Appeal 2.2 Requ i remen ts fo r a Stay............................
Ab 3.
Specific Appealable Matters 3.1 Ru l i ng s on I n te rv en ti on............................
46 3.2 Scheduling 0rders..................................
46 3.10 Pa r ti al In i ti al Deci si ons..........................
46 l
3.11 Other Licensing Actions............................
46 5.
Briefs on Appeal 5.3 Contents of Brief 5.3(1)
Genera 1..................................
46 7.
Actions Similar to Appeal 7.1 Motions to Reconsider..............................
47 7.2 Interlocutory Reviews 7.2 1 General..................................
47 7.2 2 Directed Certification...................
48 8.
Exception to Orders, Rulings Initial Decisions, and Partial Initial Decisions 8.2 Time for Filing Exceptions 8.2(2)
Variations in Time Limits................
48 8.3 Briefs on Exceptions...............................
48 9.
Certification...........................................
48 (new)9A. Reconsideration by the Commission.......................
49
- 10. Review of Appeal Board Decisions 10.1 General............................................
49 l
10.2 Stays Pending Judicial Review......................
49 (new) 10.4 Di squal i fica tion of a Cocuni ssioner.................
50 vii
PAGE
- 12. Procedure on Remand 12.1 Jurisdiction of Licensing Board on Remand..........
50 VI. GENERAL MATTERS 1.
Amendments to Existing Licenses and/or Construction Permits 1.2 Hearing Requirements 1.2(3)
Intervention.............................
50 1.2(5)
Matters Considered in Hearings on License Amendments....................
50 (new)lA. Amendments to License / Permit Applications...............
51 2.
Antitrust Considerations 2.1 Genaral............................................
51 2.2 Cona deration of Antitrust Matters Af ter the Cons truction Pe rmi t Stage................
52 2.4 Discovery in Antitrust Proceedings 2.4(1)
General..................................
53 2.4(2)
Di scove ry Cu to f f Da te s...................
53 3.
Attorney Conduct 3.1 Practice before Licensing and Appeal Boards 3.l(2)
Pro f e s si onal Deco rum.....................
54
( reti tl ed)3.2 Di sc i pl i n a ry Ma t te rs...............................
54 5.
Early Site Review Procedures 5.1 Genera1............................................
54 5.2 Scope of Review....................................
54 8.
Generic Issues 8.2 Consideration of Generic Issues in Licensing Proceedings..............................
55 8.3 Effect of Unresolved Generic Issues 8.3(2)
On Operating License Proceedings.........
55 8A.
Inspection and Enforcement 8A.1 General............................................
55 8A.2 Enforcement Actions BA.2(1)
General..................................
56 8A.2l2)
Civil Penalties..........................
56 10A. Material License........................................
57
- 11. Motions in NRC Proceedings 1 1.1 Ge n e r a l............................................
57 11.4 Licensi ng Board Ac tions on Moti on s.................
57 viii
PAGE
- 12. NEPA Considerations 12.1 General.............................................
57 12.2 Environmental Statements 12.2(1)
Genera1...................................
58 (new) 12.2(1)(a)
Whether to Prepare an EIS.........
58 i
(new) 12.2(1)(b)
Scope of Environmental Statement.. 59 1
12.2(2)
Role of Environmental Statement...........
60 12.2(3)
Circumstances Requiring Redrafting of FES 12.2(3)(a)
General...........................
61 (retitled) 12.2(4)
Alternatives (formerly Alternative Site).. 61 12.2(5)
Need for Facility 12.2(5)(a)
Genera 1...........................
62 12.2(6)
Cost-Benefit Analysis 12.2(6)(b)
Consideration of Specific Costs...
62 12.3 Power of NRC Under NEPA 12.3(1)
Genera 1...................................
63 12.3(5)
W i th Re g a rd to FWPC A...................... 63 I
12.4 Spen t Fu el Pool Proceedi ng s......................... 63
- 13. NRC Staff 13.1 Role in Licensing Proceedings 13.1(1)
General...................................
64 13.5 Sta tus of Standa rd Revi ew P1 a n...................... 65 (new)15. Regula tions 15.1 General.............................................
65 18.
Staff Disclosure of Information to the Public
- 18. 2 Freedom of In fo nna tion Ac t.......................... 65
- 18. 4 Pro p ri e t a ry I n f o rma ti o n............................. 66 18.4(3)
Security Plan Infonnation Under 10 CFR 2.790(d)...........................
66
- 19. Show Cause Proceedings 19.1 General.............................................
66 19.2 Petition for Show Cause Order new 19.2 Grounds...................................
67 new 19.2 Bu rd en o f P roo f........................... 68 new) 19.2(3)
Issues in Show Cause Proceeding........... 68
}
19.3 Review of Decision on Request for Show Cause 0rder...............................
68 1x
Ol PAGE 19.4 Notice and Hearing to Licensee / Permittee...........
69
- 19. 5 Bu rd e n o f P roo f....................................
69 new) 19.7 Delay of Decision..................................
69 new) 19.8 Necessity of Hearing...............................
69 new) 19.9 Intervention.......................................
70 20A. Suspension. Revocation or Modification of License.......
70 (new)208. Technical Specifications................................
70 (new)22. Procedures in Other Types of Hearings 22.1 Mili ta ry or Foreign Af fa i rs Functions..............
70 22.2 Export Licensing 22.2(1)
Genera 1..................................
70 l
22.2(2)
Juri sdiction of Comi ssion...............
71 22.2(3)
Expo rt Li cense Cri teria..................
71 O
l 9
X
5 I.10 l
I.
APPLICATION FOR LICENSE / PERMIT 3.
Application for Early Site Review f
f Three years af ter the Licensing Board sanctioned a limited work authorization (LWA) and before applicant had proceeded with any construction activity, applicant indicated it wanted to amend its construction permit application to focus only on site suitability issues. The Appeal Board adopted applicant's suggestion to " vacate without prejudice" the decisions of the Licensing Board sanctioning the LWA. Tne Appeal Board remanded the cause for proceedings deemed appropriate by the Licensing Board upon fomal receipt of an early site approval application. Delmarva Power & Light Company (Summit Power Station, Units 1 and 2), ALAB-516, 9 NRC 5, 6 (1979).
4 Form of Application for Construction Permit or Operating License (new) 4.3 Termination Where an applicant abandons its construction of a nuclear facility and requests that construction permit proceeding be teminated prior to resolution of issues raised on appeal from the initial decision authorizing construction, fundamental feirness dictates that temination of the proceedings be accompanied by a vacation of the initial decision on the ground of mootness. Rochester Gas and Electric Corporation. et al. (Sterling Power Project, Nuclear Unit 1), ALAB-596,11 NRC 867, 869 (1980).
7.
Notice 7.1.
Federal Register I
One may be charged with notice of matters published in the Federal Register. Houston Lighting & Power Co.
( Allens Creek Nuclear Generating Station Unit 1),
ALAB-574, 11 NRC 7 (1980). (Note - The Appeal Board expressly declined to reach the question of whether the Federal Register notice binded the petitioners to its tems.
Id_. a t 10).
8.
Staff Review A Staff review of an application is an aid to the Commission in deteruining if a hearing is needed in the public interest. With-out the Staff's expert judgment the Commission probably cannot reach an informed judgment on the r.eed for a hearing in the public interest. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant. Units 1, 2, 3 & 4), ALAB-581,11 NRC 233, 235 (1980), modified CLI-80-12, 11 NRC 514 (1980).
It is on the Staff to decide its priorities in the review of applications. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-581, 11 NRC 233, 238 (1980),
modified CLI-80-12, 11 NRC 514, 517 (1980).
- 10. Abandonment of application When the applicant has abandoned any intention to build a faci-lity, it is within the Licensing Board's power to dismiss the the construction permit application. Puerto Rico Electric Power Authority (North Coast Nuclear Plant Unit 1) ALAB-605, 12 NRC 153, 154 (1980).
I 1
6 11.1.5(4)
PREHEARING MATTERS 1.
Scheduling of Hearings 1.1 General While a hearing is required on a construction permit application, operating license hearings can only be triggered by petitions to intervene, or a Commission finding that such a bearing would be in the public interest. Carolina Power & Light Co. (Shearon Harris
}
Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 26 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
Licensing Boards have no independent authority to initiate ad,ludiCatory proceedings withour prior action of some other component of the Commission. 10 CFR 2.104(a) does not provide authority to a Licensing Board considering a con-struction permit application to order a hearing on the yet to be filed operating license application. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 27-28 (1980),
modified, CLI-80-12, 11 NRC 514 (1980).
Section 2.104(a) of the Commission's Rules of Practice contemplates detemination of a need for a hearing in the public interest on an operating license, only after appli-cation for such a license is made. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3
& 4), ALAB-577,11 NRC 18, 27-28 (1980); Carolina Power
& Light Co. (Shearon Harris Nuclear Power Plant Units 1, 2, 3 & 4), ALAB-581,11 : RC 233 (1980), modified.
CL]-Rn-12, 11 NRC 514 (1980).
1.2 Public Interest Requirements Findings under 10 CFR 2.104(a) on a nerd for a public hearing on an application for an operating license in the public interest cannot be nade until af ter such application is filed. Such finding must be based on the application and all information then available. While, the Commission can detemine that a hearing on an oper-ating license is needed in the public interest, a licensing board could not. Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1. J, 3 & 4),
ALAB-577, 11 NRC 18, 26-28 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
1.5 Postponement of Hearings 1.5(4)
Time Extensions for Casa f.paration The Appeal Board granted staf f's request for an extension of a deadline for filing written testimony but called the matter to the atten-tion of the Commission, which ha'; supervisory authority over the Staff. In granting the extension, made as a result of the Staff's inability to meet the earlier deadline due to assignment of Staf f to Three Mile Island related matters, the Board rejected the inter-venor's suggestion that it hold a hearing to determine the reasons for, and reasonableness of, the extension request. Florida Power and 2
i 11.3.1 Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553,10 NRC 12 (1979)
Where time extensions have been granted, the original time period is immaterial in seeing whether due process has been observed.
Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 467 (1980).
(new) 1A. Necessity of Hearing Once a notice of opportunity for hearing has been published and a request for a hearing has been submitted, the decision as to whether a hearing is to be held no longer rests with the Staff but instead is transferred to the Commissio or an adjudicatory tribunal designated to preside in the proceeoMc. Dairyland Power Cooperative (La Crosse Boiling Water Reactor) LBP-80-26, 12 hRC 367, 371 (1980).
Where complainants were denied a hearing where they had put forth failure of the Director to take stronger action, the Appeal Board, in upholding the denial, noted that the Director's decision in no way restricted the authority of the ASLB to further restrict or even deny the license for operation of the facility. Fu rther, it was not grounds for a hearing that, if a hearing was not imme-diately held on Director's decision, the money spent on plant would later sway the Licensing Board. Houston Lighting and Power Company (South Texas Project, Units 1 & 2), CL1-80-32, 12 NRC 281, 288-290 (1980).
2.
Place of Hearing 2.3 Convenience of Litigants As a matter of policy,'most evidentiary hearings in NRC proceedings are conducted in the general vicinity of the site of the facility involved. In generic matters, however, when the hearing encompasses four distinct, geographically separated facilities and no relationship exists between the highly technical questions to be heard and the particular features of those facilities or their sites, the governing con-sideration in detennining the place of hearing should be the convenience of the participants in the hearing.
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-566,10 NRC 527, 530-31 (1979).
3.
Issues for Hearing 3.1 General A licensing board does not have the power to explore matters beyond those which are embraced by the notice of hearing for the particular proceeding. This is a holding of general applicability. Portland General Electric Company (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979), Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).
See also, Comonwealth Edison Company (Zion Station, e
Units 1 and 2), ALAB-616,12 NRC 419, 426 (1980),
Northern Indiana Public Service Company, (Bailly Generating Station, Nuclear 1), ALAB-619,12 NRC 558, 565 (1980).
~
3
6 II.3.5 The issue of management capability to operate a facility is better determined at the time of operating license application, than years in advance on the basis of preliminary plans. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
Only the Commission may decide to consider Class 9 accidents in individual licensing proceedings.
Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), CLI-80-8, 11 hRC 433 (1980); Public Service Co. of Oklahoma (Black Fox Station, Units 1
& 2), ALAB-587, 11 NRC 474, 475 (1980); Florida Power
% Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579, 11 NRC 223, 225 (1980).
Findings under 10 CFR 2.104(a) on a need for a public hearing on issues involved in an application for an operating license cannot be made until after such application is filed. Such finding must be based on the application and infomation then available.
Carolina Power & Light Co. (Shearon Harris Nuclear Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18 (1980),
modified, CLI-80-12,11 NRC 514 (1980).
Since the Appendix I [of 10 CFR 50] rule itself does not specify health effr. s and there is no evidence that the purpose of tbs Appendix I rulemaking was to determine generally h.alth effects from Appendix I releases, it follows that health effects of Appendix I releases must be litigable in individual licensing proceedings. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31,12 NRC 264, 276 (1980).
3.4 Issues not Addressed by a Party An adjudicatory board's examination of unresolved generic safety issues, not put into controversy by the parties, is necessarily limited to whether the Staff's approach is plausible, and the explanations given for support of continued safe operation of the facility are sufficient on their face. Northern States Power Company (Monticello Nuclear Generating Plant Unit 1), ALAB-620, 12 NRC 574. 577 (1980).
3.5 Separate Hearings on Special Issues The Appeal Board's holding in Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station Units 1 and 2),
ALAB-277, 1 NRC 539 (1975), that any early findings made by a Licensing Board, in circumstances where the applicant had disclosed an intent to postpone construction for several years, would be open to reconsideration "only if supervening developments or newly available evidence so warrant", does not support a later Licensing Board's action in imposing a similar limitation on the right to raise issues which were not encompassed by the early findings. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 386-387 (1979), reconsid. denied, ALAB-539, 9 NRC 422 (1979).
Upon *rtification the Commission held that in view of fact that TMI accident resulted in hydrogen generation 4
$ 11.3.7 gas in excess of hydrogen generation design basis assump-tions of 10 CFR l 50.44, hydrogen gas control could be properly litigated under Part 100. Under Part 100, hydro-gen control measures beyond those required by 10 CFR l 50.44 would be required if it is detemined that there is a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiatior. doses in excess of Part 100 guidelines values. Metropolitan Edison Company (Three Mile Island, Unit No.1), CLI-80-16, 11 hRC 674, 675 (1980).
3.6 Construction Permit Extension Proceedings Intervenors in a construction permit extension proceed-ing may only litigate those issues that (1) arise from the reasons assigned to the requested extension, and (2) cannot abide the operating license proceeding. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), LBP-80-31,12 NRC 699, 701 (1980).
In an extension proceeding, the Board must consider issues related to health, safety end environmental which arise from the reasons given for extension which cannot abids until the operating license hearing, even if the issues are not related to the prolonged period of construction.
Northern Indiana Public service Company (Bailly Generating Station, Nuclear 1). LB: 40-22, 12 NRC 191, 198 (1980),
citing Indians and Michigan Electric Co. (Donald C. Cook Nuclear Plant. Units and 2. ALAB-129, 6 AEC 414 (1973).
".. The mere request for an extension is no reason to
.accelerate a consideration of issues that the rules pro-vide for considering no earlier than the operating license stage." Bailly, supra, at 199.
Even when if is determined that issues advanced in con-struction r_rmit extension proceeding nould have been heard at unstruction permit hearing, those issues will be heard ic extension proceeding only if there is not
" reasonable assurance" that all safety matters will be satisfactorily resolved by the new completion date.
Balily, supra, at 200.
The Board ruled that issues that do not arise from the reasons for the delay in construction or are otherwise unrelated to the prolonged period construction could be considered, in an extension proceeding, if they are neces-sary to protect the public s 'terest and cannot abide the operating license proceeding. The Board did note that any jurisdiction the Board exercists under the above interpre-tation would be strictly limited to situations in which the petitioner has made a convincing prima facie showing that the safety matter alleged will not be satisfactorily resolved by the new completion date. Bailly, supra, at 204-206.
3.7 Issues for Hearing in Export Licensing Proceedings The export licensing process is an inappropriate forum to consider generic safety questions posed by nuclear power plants. Under the Atomic Energy Act. as amended by the Nuclear Non-proliferation Act of 1978, the Commission in making its export licensing determinations focuses on non-proliferation and safeguards concerns, 5
a
% II.4.3 and not on foreign health and safety matters.
Westinghouse Electric Corp. (Export to South Korea),
CLI-80-30, '12 NRC 253, 260-261 (1980).
4.
Nctice of Hearing 4.1 Contents A licensing board doe, not have the power to explore matters beyond those which are embraced by the notice of hearing for the particular proceeding. This is a holding of general applicability. Portland General Electric Company (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979). Public Service Company of Indiana (Marble Hill Nuclear Generating Station.
Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976).
See also, Comonwealth Edison Corrpany (Zion Station, UnTts 1 and 2), ALAB-616,12 hRC 419, 426 (1980);
Northern Indiana Fublic Service Cornpany (Bailly Generating Station, huclear 1), ALAB-619,12 NRC 558, 565 (1980).
Operating license proceedings start with the notice cf proposed action (10 CFR 2.105) and are separate frxi prior proceedings. Thus, a licensing board in a con-struction permit hearing may not order that certain issues be tried at the OL proceeding. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant.
Units 1, 2, 3 & 4), CLI-80-12,11 NRC 514, 517 (1980).
4.2 Adequacy One receiving filings in a proceeding is charged with reading and knowing matters therein which might af fect his rights. Houston Lighting & Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 13 (1980).
Where an original notice nf hearing is overly narrowly drawn, a requirement in a subsequent notice that those who now seek to intervene state that they did not inter-vene before because of limitations in the original notice was not improper. Houston Lighting & Power Co.
( Allens Creek Nuclear Generating Station, Unit 1),
ALAB-574, 11 NRC 7, 10 (1980).
4.3 Federal Register The Licensing Board rejected Petitioner's argument that " mere notice in the Federal Register... is inadequate notice..." Tne Federal Register Act expressly provides that such publication constitutes notice to "all persons residing within the States of the Union", (44 U.S.C. 1508). Long Island Lighting Company (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631 (1975);" and a U.S. Supreme Court ruling that publication in the Federal Register l
gives legal notice to all citizens. (Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947).
Florida Power and Light Company (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21,10 NRC 183, 191-92 (1979).
In an operating license amendrient proceeding, the Licensing Board ruled that the law required the NRC to publish once in the Federal Register notice of its 6
6 II.8.3(1)
}
intention to act on the application for amendment to the operating license. Turkey Point, supra, at 192.
Publication in Federal Register of conditions on inter-
~
vention is notice as to all of those conditions, and one Cdnnot excuse a failure to meet those conditions by a clained lack of knowledge. Houston Lighting & Power Co.
Gilens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 10 (1980).
5.
Prehearing Conferences 5.4 Prehearing Conference Order 5.4(1)
Effect of Order Licensing Board may limit the time for the filing of contentions to less than that nonnally alloted by the rules,10 CFR 2.714(a)(3) and (b), so that all participants know before they arrive at the special pre-hearing conference, what position the propo-nents of the plant are taking on the various contentions. Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 523 (1979).
8.
Intervenor 8.2 Need for Counsel As an example of less stringent standards, the inter-venors will be held to in the absence of counsel, the intervenors were held to a less stringent filing require-ment. (They were allowed to file the original and 2 copies with the Secretary, rather than the usual original and twenty copies. Dairyland Power Cooperative g'La Crosse Boiling Water Reactor) Docket No. 50-509 (FTOL Proceeding)
- (unpublished Decision issued July 8, 1980).
Insofar as organizations are concerned,10 CFR 2.713(a) clearly limits representation to either an attorney or a member, and it can logically be rod as precluding repre-sentation by an attorney and a member at the same time.
But it does not appear to bar representation by a member throughout a proceeding if, at some earlier time during the proceeding, an attorney has made an appearance for the organization. Cincinnati Gas & Electric Co. (Willia:n H. Zimmer Nuclear Station). LBP-79-17, 9 NRC 723, 724 (1979).
8.3 Petitions to Intarvene 8.3(1)
General An affidavit which makes conclusionary asser=
tions not susceptible of verification by either other litigants or 1N Jjumatory tribunal is insufficient to establish standing. Both the Board and the other parties are entitled to be provided with sufficient information to enable them to determine for themselves whether standing exists. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377,399-400 (1979).
7
iII.8.3(4)(c) 8.3(2)
Pleading Requirements Although a totally deficient pleading may not be justified on the basis that it was prepared without the assistance of counsel, a tro se peti-tioner is not "to be held to those standaMs of clarity and precisio1 to which a lawyer might reasonably be expecttd to adhere." Public Service Electric and Uas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973), cited M Houston Light h and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAS-590,11 NRC 542, 546 (1980).
Where an original notice of hearing is overly narrowly drawn, a requirement that those who subsequently seek to intervene state that they did not intervene before because of limitations in the original notice was not an abuse of discretion. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station. Unit 1), ALAB-574,11 NRC 7,10 (1980).
The petition of an organization to intervene must show that the person signing it has been authorized by the organization to do so.
Detroit Edison Company (Enrico Fenni Atomic Power Plant, Unit 2), LCP-79-1, 9 NRC 73, 77 (1979).
8.3(4)
Time Lt.iits & Late Petitions 8.3(4)(a) Time for Filing A Licensing Board did not abuse its discretion in shortening the time to file contentions where there were many intervenors. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 13 (1980).
8.3(4)(c) Consideration of Untimely Petitions The key policy consideration for barring late intervenors is one of viz., "the public interest fairness,2y and orderly conduct in the tim Of our proceedings." Houston Lighting and Power Co., (South Texas Project Units 1 and 2), ALAB-549, 9 NRC 644, 648-49 (1979), citing Nuclear Fuel Services, Inc., (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975).
The five factors listed in 10 CFR 2.714(a) are to be considered in determining whether to allow late intervention. Newiy acquired standing by moving to the vicinity of a plant is not alone enough to justify belated intervention. Nor does being articu-late show a contribution can be made in developing the record. Othar parties having the same interest weigh against allowing late intervention. Houston 8
6II.8.3(4)(c)
I Lighting and Power Co. ( Allens Creek huclear Generating Station Unit 1),
ALAB-582, 11 NRC 239, 241 (1980).
The first factor of those speci-fied in 10 CFR 2.714(a) is whether there exists " good cause, if any, for the failure to file on time."
Cincinnati Gas and Electric Company (William H. Zimmer Nuclear Power Station). ALAB-595, 11 NRC 860, 862 (1980). In considering the " good cause" factor, the Appeal Board pointed out that a strong excuse for lateness will atten-uate the showing necessary on the other factors of 10 CFR 6 2.714 It added that the 1978 amendment of the language of 9 2.714, far from altering this substantive principle, regarding excuse for lateness, merely codi-fled it.
Puget Scund Power
& Light Company (Skagit tuclear Power Project. Units 1 and 2),
ALAB-523, 9 NRC 58, 63 (1979).
See also, Florida Power and U ght Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-420, 6 NRC 8, 22 (1977), affirmed CLI-78-12, 7 NRC 939 1978).
D Where no good excuse is tendered for the tardiness, the petitioner's demonstration on the other factors must be particularly strong.
(Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-431, 6 NRC 640, 462 (1977) and cases there cited). In the instance of a very late petition, the strength or weakness of the tendered justification may thus prove crucial. The greater the tardiness, the greater the likeli-hood that the addition of a new party will delay the proceeding -
eg., by occasioning the reliti-gation of issues already tried.
Although the delay factor may not be conclusive, it is an especially weighty one. (Project Management Corporation (Clinch River Breeder Te' actor Plant), ALAB-354, 4 NRC 383, 394-95 (1976).) Puget Sound Power
& Light Company, et al. (Skagit Nuclear Power Project Units 1 and 2), ALAB-552, 10 NRC 1, 5 (1979).
Licensing BoarJs and Appeal Boards have both considered various excuses to determine whether they constitute
" good cause". Newly-acquired organi-zational existence does not constitute D
good cause for delay in seeking inter-vention. Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 9
l!!.8.3(4)(c)
.24 (1979) cited in Cincinnati Gas and Electric Co. (WilTTam H. Zimmer Nuclear Station), LBP-80-14,11 NRC 570 (1980).
Nor does preoccupation with other matters afford a basis for excusing a non-timely motion to intervene. Poor judgment or imprudence in the first place is not good cause for late filing. Puget Sound Power & Light Co. (Skagit Nuclear Power Project. Units 1 and 2), LBP-79-16, 9 NRC 711, 714 (1979). The Appeal B3ard did not accept as an excuse for late intervention the claim that peti-tioner, a college organization, could not meet an August petition deadline because most of its members were away from school during the sunmer and hence unaware of developments in the case. The Appeal Board said this consideration does not relieve an organization from making the neces-sary arrangements to insure that its interest is protected in its members' absence. On the other hand, new regulatory developments and the availability of new information may constitute good cause for delay in seeking intervention. Duke Power Company (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146,148-49 (1979). See also Cincinnati Gas and Electric '.o. (William H. Zimmer Nuclear StatioR), LBP-80-14, 11 NRC 570, 572-573 (1980).
With regard to the second factor of 10 CFR 6 2.714(c), the Appeal Board said that the suggestion that an organization could adequately protect its interest by submitting a limited appearance statement gave insuffi-cient regard to the value of partici-pational rights enjoyed by parties -
including the entitlement to present evidence and to engage in cross-examination. The Board also rejected assertions that the organization might adequately protect its interest by making witnesses available to a successful petitioner or by trans-mitting infonnation in its posses-i sion to appropriate State and local officials. Duke Power Company (Amendment to Materials License SNM-1773 - Transportation of Spent l
Fuel from Oconee Nuclear Station l
for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150, i
- n. 7 (1979).
With regard to the fourth factor of 10 CFR % 2.714(a), the extent to which petitioner's interest will 10
i !!.8.3(4)(c)
)
be represented by existing parties, the Appeal Board ruled that the fact thet a successful petitioner has advanced a contention concededly akin to that of a late petitioner does not necessarily mean that the successful petitioner is both wil-ling and able to represent the late petitioner's interest. Duke Power Company (Anendment to Materials License SNM-1773 - Transportation of Spent Fuel fram Oconee Nuclear Station for Storage at McGuire Nuclear Station) ALAB-528, 9 NRC 146,150(1979).
The Licensing Board in Florida Dower and Light Company (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21, 10 NRC 183, 195 (1979) said that NRC practice has failed to provide a clear-cut answer to the question of whether the fourth factor, the extent to which the petitioner's interest will be represented by existing parties, is applicable when there are no inter-vening parties and no petitioners other than the latecomer, and a hear-ing will not be held if the late petitioner is denied leave to inter-vene. The Licensing Board reviewed past Licensing Board decisions on this question:
1.
In,tt. Lucie and Turkey Point the Licensi'.g Board decided that the fourth factor was not directly applicable but w nt on to note that without the petitioner's admission there would be no other party to protect petiticner's interest. Florida Power and Light Company (St. Lucie Plants Units 1 and 2 and Turkey Point. Units 3 and
2.
In Virgil C. Sunner the Licensing Board acknowleded uncertainty as to the applicability of factor four, but it said that if the factor were applicable it would be given zero weight because of the particular circumstances of that Case. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-78-6, 7 NRC 209, 213-14 (1978).
3.
In Kewaunee, the Board concluded that petitioners' interest would not be represented absent a hearing and decided that the fourth factor weighed in favor of admitting them as inter-venors. Wisconsin Public Service gCor. (Kewaunee Nuclear Power Plant),
LbP-78-24, 8 NRC 78, 84 (1978).
I 11
i II.8.3(4)(d)
In Turkey Point, the Licensing Board ruled that the Commission intended that all five factors of 10 CFR 2.714(a)(1) should be balanced in every case involving an untimely pe ti tion. Florida Power ?nd Light Company (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-10, 10 NRC 183, 195 (1979).
The Licensing Board in Turkey Point, diso ruled that in the circumstances where denial of a late petition would result in no hearing and no parties to protect the petitioner's interest, the question, "To what extent will Petitioners' interest be represented by existing parties?"
must be answered, "None".
The fourth factor therefore, was held to weigh in favor of the late petitioners.
Id.
With respect to the fifth factor, the extent to which a late petitioner's participation would delay a proceed-ing, the Appeal Board in Puget Sound Power and Light Company, TecU Units et al.
(Skagit Nuclear Power Pro 1 and 2), ALAB-559, 10 NRC 162, 172 (1979), assessed this factor, as of the time of the Appeal Board's hearing, not as of the time the petitioners filed their petition. A person who attempts to intervene three and a half years after the petition deadline has no right to assume that his intervention will go unchallenged, rather he has every right to assume that objections will be made and that the appellate process might be invoked. Skagit, supra, at 172-173.
The permissive grant of intervention petitions inexcusably filed long after the prescribed deadline would pose a clear and unacceptable threat to the integrity of the entire adjudicatory process. Although Section 2.714(c) l of the Rules of Practice may not shut the door firmly against unjustifiably late petitions, it does reflect the i
expectation that, absent demonstrable I
good cause for not doing so, an indi-vidual interested in the outcome of a particular proceeding will act to protect his interest within the established time limits. Skagit, supra, at 172-73.
8.3(4)(d) Appeals from Rulings on late Intervention In a decision vacating a Licensing Board's grant of late intervention because the grant was based on improper criteria, the Appeal Board refused to examine whether the petitioner had met 12
l II.8.4(1)(a) the regulatory requirements for inter-vention(i.e.,10CFR2.714). Puget Sound Power & Light Ccmpjan, 7Ulifts et al.
(Skagit Nuclear Power Project 1 and 2), ALAB-523, 9 NRC 58, 63-64 (1979),petitionforreviewdenied, Puget Sound Power & Light Co. (Skagit Nuclear Project, Units 1 and 2),
unreported,(January 16,1980).
It is for the licensing boards to make the initial assessment of how late intervention petitions fare in light of the intervention criteria.
Skagit, supra, at 63.
(new) 8.3(4)(e) Mootness of Petitions Where Comraission was in the process of ruling on Indian tribes' untimely petition to intervene, and where appli-ca ' moved to amend the application ar'. conclude the proceeding, petition te intervene was dismissed as moot.
,PA et Sound Power and Light Company, e 11. (Skagit Nuclear Power Project, U. its 1 and 2), CLI-80-34,12 NRC 407, 408 (1980).
8.4 Interest and Standing
=
8.4(1)
Judicial Standing 8.4(1)(a) General Judicial concepts of standing govern whether a petitioner has raade an ade-quate showing of interest to becon.e a party to a proceeding. Houston Lighting and Power Co. (South Texas Project.
Units 1 and 2), LBP-79-10, 9 NRC 439, 443(1979), citing, Portland General Electric Company (Pebble Springs Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613(1976).
The Commission applies judicial tests of " injury in fact" and " arguably within the zone of interest" to deter-mine standing. " Injury" as a premise to_ standing must come from an action, in contrast to failure to take an action. One who claims that an Order in an enforcement action should have provided for more extensive relief does not show injury from relief granted and thus does not have stand-ing to contest the order. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station. Units 1 and 2, CLI-80-10, 11 NRC 438, 439 (1980.
To establish the requisite " injury in fact" for standing, a petitioner must have a "real stake" in the outcome, that 13
i II.8.4(1)(a) is, a genuine, actual, or direct stake, but not necessarily a substantial stake in the outcome. An organization meets this requirement where it has identified one of its members who possesses the requisite standing. Houston Lighting and Power Co. (South Texas Pruject, Units 1 and 2), LBP-79-10, 9 NRC 439, 447-48 (1979).
The economic interest of ratepayers is not enough to confer standing.
Houston Lighting and Power Co.
(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 445 (1979).
A petitioner may base its standing upon a showing that his or her resi-dence, or that of its members, is within the geographical zone that might be affected by an accidental release of fission products.
Houston Lighting and Power Co.
(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 443 (1979),
see also Detroit Edison Company T Erico fermi Atomic Power Plant.
Unit 2), LBP-79-1, 9 NRC 73, 78 (1979).
Close proximity has always been deemed enough standing alone, to establish the requisite interest" for intervention. In such a case the petitioner does not have to show that his concerns are well-founded in fact, as such concerns are addressed when the merits of the case are reached.
Distances of as much as 50 miles have been held to fall within this zone.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56(1979).
A statement of asserted injury which is insufficient to found a valid con-tention may well be adequate to provide a basis for stariding. Consumers Power Com an (Palisades Nuclear Plant).
-20, 10 NRC 108, 115 (1979).
Failure to produce an environmental impact statement in circumstances where one is required has been held to con-stitute injury - indeed, irreparable injury. Palisades, supra, at 115-16.
Persons residing within the close proximity to the locus of a oroposed action constitute the very class which an impact statement is intended to benefit. Palisades, suora, at 116.
O 14
%!!.8.4(1)(b) l 8.4(1)(b) Standing of Organizations Based upon the Commission's holding in Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-24, 4 NRC 610, 614 (1976), a Licensing Board has used judicial concepts of standing to deter-mine the propriety of intervention by an organization as a matter of right.
Duke Power Company (0conee Nuclear Station and McGuire Nuclear Station),
LBP-79-2, 9 NRC 90, 95 (1979).
To establish the requisite " injury in fact" for standing, a petitioner must have a "real stake" in the outcome, a genuine, actual, or direct stake, but not necessarily a substan-tial stake in the outcome. An organi-zation meets this requirement where it has identified one of its members who possesses the requisite standing.
Houston Lighting and Power Co. (South Texas Project Units 1 and 2), LBP 10, 9 NRC 439, 447-48 (1979).
An organization may meet the injury-in-fact test for standing in one of two ways, it may demonstrate an ef fect upon its organizational interest, or it may allege that its members, or any of them, are suffer-ing immediate or threatened injury as a result of the challenged action of the sort that would make out a justifiable case had the members themselves brought suit. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 646 (1979). Consumers Power Company (Palisades Nuclear Plant),
LBP-79-20, 10 NRC 108, 112-113 (1979).
With respect to national environmental groups, standing is derived from injury in fact to individual members. South Texas, supra, at 647, citing Sierra Clubv.Morton405U.S.727(1972J~
An organization seeking to obtain stand-ing in a representative capacity must demonstrate that a member has in fact authorized such representation. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 444 (1979) aff'd, ALAB-549, 9 NRC 644 (1979). Detroit Edison wCom an (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 77(1979). Consumers Power Compam (Palisades Nuclear Plant) LBP-79-20, l
10 NRC 108, 113 (1979).
Upon a detennination that an adequate F
showing has been made that public l
15
i I!c8.4(1)(c) revelation of the identity of a member of the petitioner organization might threaten rights of association, the licensing board should place an appro-priate protective order upon that information. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 400 (1979).
There is a presumption of standing where an organization raises safety issues on behalf of a member or nembers residing in close proximity to a plant. Consumers Power Company (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 115 (1979).
An organization has sufficiently demon-strated its standing to intervene if its petition is signed by a ranking official of the organization who himself has the requisite personal interest to support the intervention.
An organization seeking intervention need not demonstrate that its member-ship had voted to seek intervention on the matter raised by a submitted contention, and had authorized the author of the intervention petition to represent the organization. Duke Power Company ( Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station),
ALAB-528, 9 NRC 146, 151 (1979).
An organization cannot meet the " inter-est" requirement for standing by acquiring a new member considerably af ter the deadline for filing of intervention petitions who meets the
" interest" requirement, but who has not established good cause for the out-of-time filing. Washington Public Power Supply System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330, 335 (1979). The organi-l zation cannot in this situation amend its original pleading to show the interest of the new member; the Licensing Board has interpreted 10 CFR $ 2.714(a)(3) to permit amend-ment of a petition relative to interest only by those individuals who have made a timely filing and are merely particularizing how their interests may be affected. WPPSS, supra, at 336.
8.4(1)(c) Standing in Export Licensing Cases Judicial precedents will be relied on in deciding issues of standing tn intervene in export licensing.
Westinghouse Electric Corp. (Export 16 L
i 11.8.4(1)(d) l to South Korea) CLI-80-30, 12 NRC 253, 258 (1980).
Institutional interests in dissemi-nating information and educating the public do not establish a claim of right under Section 189a of the Atomic Energy Act for purposes of standing because it would not con-stitute an interest affected by the proceeding. There must be a causal nexus between the refusal to allcw standing and the inability to dissemi-nate information Id. at 259.
8.4(1)(d) Standing in Specific Factual Situations "A petitioner may base its standing upon a showing that his or her resi-dence, or that of its members, is
'within the geographical zone that might be affected by an accidental release of fission products.'
Louisiana Power and Light Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372 n.6 (1973)." Detrnit Edison Company (Enrico Fenni Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 78 (1979).
Distances of as much as 50 miles have been held to fall within this zone.
Tennessee Yalley Authority (Watts D
Bar Nuclear Plant, Units 1 and 2),
ALAB-413, 5 NRC 1418, 1421 n.4 (1977)
(50 miles); Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2),
ALAB-107, 6 AEC 188, 193 (1973) (40 miles); Fermi, supra (35 miles).
The Licensing Board refused to allow intervention on the basis of the possi-bility of petitioners' consuming produce, meat products, or fish originating within 50 miles of the site. Washington Public Power Supply System (WPPSS Nuclear Pro-ject No. 2) LBP-79-1, 9 NRC 330, 336 (1979).
A petitioner owning and renting out farmland 10 to 15 miles from the site and visiting the fam occasionally was held not to meet standing require-ments. WPPSS, supra, at 336-38.
Those persons who would have standing to intervene in new construction per-rit hearings, which would be required if good cause could not be shown for the extension, would have standing to intervene in [ extension proceedings]
to show that no good cause existed and, consequently, new construction pennit hearings would be required to complete I
construction. Northern Indiana Public Service Company. (Bailly Generating 17
$II.8.4(2)
Station, Nuclear 1), LBP-80-22,12 NRC 191. 195 (1980). affirmed ALAB-619, 12 NRC 558, 563-65 (1980).
One living 26 miles from a plant cannot claim, without more, that his aesthetic interests are harmed. Conjectural interests do not provide a basis for standing. Nor does economic ham or one's status as a ratepayer provide a basis for standing. Houston Lighting
& Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242, 243 n.8 (1980).
Economic injury to ratepayers is not sufficient to confer standing upon state Commissions to challenge pro-posert license revocation because such injury results fran termination of the project and not Commission " action,"
and because such injury cannot be re-dressed by favorable Commission action.
Northern States Power Company (Tyrone Energy Park, Unit 1) CLI-80-36,12 NRC 523, 526-7 (1980) (views of Chairman Ahearn and Commissioner Hendrie).
A statement of asserted injury which is insufficient to found a valid con-tention may well be adequate to provide a basis for standing. Consumers Power Company (Palisades Nuclear Plant),
LBP-79-20,10 NRC 108,115 (1979).
Failure to produce an environmental impact statement in circumstances where one is required has been held to consti-tute injury - indeed, irreparable injury.
Palisades, supra, at 115-16. Persons residing within the close proximity to the locus of a proposed action consti-tute the very class which an impact statement is intended to benefit.
Palisades, supra, at 116, 8.4(2)
Discretionary Intervention The discretionary intervention doctrine comes into play only in circumstances where standing to inter-vene as a matter of right has not been established.
Duke Power Company (0conee Nuclear Station and McGuire Nuclear Station), ALAB-528, 9 NRC 146, 148 n.3 (1979).
The Commission has broad discretion to allow inter-vention where it is not a matter of right. Such intervention will not be granted where conditions have already been imposed on a licensee, and no l
useful purpose will t served by that intervention.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442 (1980).
O 18
$ II.8.5(1)
Intervenor allowed to participate as a matter of discretion in hearing before Appeal Board.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 227, 231 (1980).
In granting discretionary intervention, the fore-most consideration is the degree to which the petitioner would likely produce a valuable con-tribution to the decisonmaking process. Where a petitioner failed to respond to Appeal Board order seeking clarification following presentation of evidence casting shadow on his purported quali-fications. Appeal Board was entitled to conclude that a petitioner would not help to create a sound record, and that the veracity of his other statements were suspect, leading to denial of his petition. Houston Lighting and Power Co.
(South Texas Project. Units 1 and 2), LBP-70-10, 9 NRC 439, 457-58 (1979).
8.5 Contentions of Intervenors 8.5(1)
Requirements The degree of specificity with which the basis for a contention must be alleged initially involves the exercise of judgment on a case-by-case basis. In passing on the admissibility of a contention, the licensing board need not reach the merits of the contention nor need the peti-tion detail the evidence which will be offered in support of each contention. Nevertheless, it is incumbent upon intervenors to frame their con-tentions with sufficient preciseness to show that the issues raised are within the scope of the cognizable proceeding. Commonwealth Edison Com an (Byron Nuclear Power Station, Units 1 and 30, 12 NRC 683, 687-8 (1980) guoting Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 NRC 13, 20 (1974).
Consideration of such matters as need for power and various plant alternatives is more appropriate at the construction permit stage - before a plant has been built - than at the operating license stage, where a completed plant must be assumed.
A contention raising issues of this type at the operating license stage must include a strong showing that there exists a significant issue which had not previously been adequately con-sidered or significant new informtion which had developed after the construction permit review, Pennsylvania Power & Light Company, et al.
(Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 303-04 (1979).
Originality of framing contentions is not a Conimonwealth Edison pleading (requirement. Byron Nuclear Power Station, Units 1 Company and 2) LBP-80-30, 12 NRC 683, 689 (1980).
Extraneous matters such as preservation of rights, statements of intervention, and direc-tive for interpretation which accompany an inter-13
i !!.8.5(3) venor's list of contentions will be disregarded as contrary to the Commission's Rules of Practice.
Corinonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30,12 NRC 683, 689-90 (1980).
A Licensing Board did not abuse its discretion in shortening the time to file contentions where there were many intervenors. Houston Lighting
& Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574,11 NRC 7,12-13 (1980).
8.5(3)
Requirement of Contentions for Purposes of Admittinq Petitioner Intervenors are required by 10 CFR 2.714(b) to file "a list of the contentions which petitioners seek to have litigated in the matter, and the basis for each contention set forth with reason-able specificity." Corrnonwealth Edison Company (Byron Nuclear Power Station Units 1 and 2),
LBP-80-30, 12 NRC 683, 636-87 (1980).
In determining whether an intervention petition should be granted, it is not the function of a licensing board to reach the merits of any of a petitioner's contentions. For this purpose, the requirements of 10 CFR 2.714 are met if a pett-tioner states the reasons (i.e., the basis) for at least one contention with reasonable specificity.
The obligation to establish the existence of some factual support for the particular assertions that petitioners for intervention have advanced as the basis for their contentions need not be undertaken as a precondition to a board's accept-ance of a contention for the limited purpose of detemining whether to allow intervention under 10 CFR 2.714.
Rather, that obligation arises solely (1) in response to a subsequent motion of another party seeking to dispose of the con-tention summarily under 10 CFR 2.749 for want of a genuine issue of material fact; or (2) in the absence of such a motion, at the evidentiary hearing itself. Houston Lighting and Power Co.
(Allens Creek Nuclear Generating S*ation, Unit 1),
ALAB-590, 11 NRC 542, 547-551 (1980).
It is not essential that pleadings of conten-tions be technically perfect. The Licensing Board would be reluctant to deny intervention on the basis of skill of pleading where it appears that the petitioner has identified interests which may be af fected by a proceed-ing. Houston Lighting and Power Company (South Texas Projects, Units 1 and 2), ALAB-549, 9 NRC 644, 650 (1979).
It is neither Congressional nor Corrnission policy to exclude parties because the niceties of pleading were imperfectly observed. Sounder practice is to decide issues on their merits not to avoid them on technicalities. Consumers Power Company (Palisades Nuclear Plant),
10 hRC 108, 116-117 (1979).
20
$ 11.8.5(11) l Prior tu entertaining any suggestion that a con-tention not be admitted, the propunant of the contention must be given some chance to be heard in response. 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. Houston Lightinq
& Power Co. (Allens Creek Nuclear Generating (1979).
Station, Unit 1), ALAB-565,10 NRC 521, 525 Although the Rules of Practice do not explicitly provide for the filing of either objections to contentions or motions to dismiss them, each pre-siding board must fashion a fair procedure for dealing with such objections to contentions as are filed. The cardinal rule of fairness is that each side must be heard. Allens Creek, supra, at 524.
8.5(4)
Contentions Challenging Regulations Contentions challenging the validity of NRC regulations are inadmissible under the pro-visions of 10 CFR $ 2.758.
Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 692-93 (1980).
8.5(6)
Defective Contentions A Licensing Board is not required to recast con-tentions to make them acceptable, but it also is D
not precluded from doing so.
Pennsylvania Power
& Light Company, et al. (Susquehanna Steam Electric Station, UnTts 1 and 2), LBP-79-6, 9 NRC 291, 295-96 (1979).
Contentions which constitute a general attack upon the methods used by the NRC Staff to insure compli-ance with regulations, without raising any issues specifically related to matters under consideration, are not appropriate for resolution in a particular licensing proceeding. Comonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2),
LBP-80-30, 12 NRC 683, 690 (1980).
(new) 8.5(10)
Adequacy of Security Plan The adequacy of a nuclear facility's physical security plan may be a proper subject for challenge by intervenors in an operating license proceeding.
Consolidated Edison Company (Indian Point Station, Unit 2), 7 AEC 17, 949 (1974); Pacific Gas and Electric Cen g (Diablo Canyon Nuclear Power Plant, Unit hos. I and 2), CLI-80-24,11 NRC 775, 777(1980).
8.5(11)
Timeliness of Submission Not later than 15 days before a special prehearing conference or, where no special prehearing con-ference is held,15 days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his petition to inter-vene which must include a list of his contentions.
Additional time for filing the supplement may be 21
l 11.8.5(12) l granted based upon a balancing of the factors I
listed in 10 CFR 6 ?.714(a)(1). 10 CFR 6 2.714(b).
In considering the extent to which the petitior.er had shown gocd cause for filing supplements OJt of time, the Licensing Board recognized that the petitioner was appearing g o se_ until just before the special prehearing conference.
Petitioner's early performance need not adhere rigidly to the Commission's standards and that in this situation it would not weigh the good cause factor as heavily as it might otherwise.
Florida Power and Light Company (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21, 10 NRC 183, 190 (1979).
In considering the admissibility of late-filed contentions, the Licensing Board balanced the five factors specified in 10 CFR 2.714(a) for dealing with nontimely filings. Cincinnati Gas and Electric Company (Willic. H. Zimmer Nuclear Station) LBP-79-22, 10 NRC 213, 214 (1979).
With respect to the second factor of 10 CFR 2.714(a) (availability of other means of protec-ting late petitioners' interest) and the fourth factor (the extent to witch late petitioners interest will be repres(nted by existing parties),
the Applicants in Zimmer. Supra at 215 claimed that the Staff would rep"esent the public interest and by inference, late petitioners' interest as well. The Licensing Bored ruled that although the Staff clearly repr;sents the public interest, it cannot be expected to pursue all issues with the same diligence as an intervenor would pursue its own issue. Moreover, unless made an issue in a proceeding, the Staff would not attempt to resolve the issue in an adjudicatory context.
Applicants' reliance on the Staff review gave inadequate consideration to the value of a party's pursuing the participational rights afforded it in an adjudicatory hearing. Zimmer, supra at 215.
Late contentions filed by a city did not over-lap a contention of another intervenor which had already been accepted in the proceeding.
The representative of a private party cannot be expected to represent adequately the presumably broader interests represented by a governmental body. Zimmer, supra at 216 n.4, citing Nuclear Fuel Services, Inc.. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975).
8.5(12)
Material used in Support of Contentions While it may be true that the important document in evaluating the adequacy of an agency's envi-ronmental review is the agency's final impact staten,ent, a petitioner for intervention may look to the Applicant's Environmental Report for factual material in support of a proposed conten-tion. Pennsylvania Power & Light Company, et al.,
(Susquehanna Steam Electric Statin, Units 1 ant 2), LBP-79-6, 9 NRC 291, 303 (1979).
22 1
l
6 11.8.6(2) i
}
8.5(13)
Contentions Challenging Absent or Incomplete Documents At the contention fomulation stage of the pro-ceeding, an intervenor may plead the absence or inadequacy of documents or responses which have not yet been made available to the parties. The contention may be admitted subject to later refine-ment and specification when the additional infor-mation has been furnished or the relevant documents have been filed. Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2),
LBP-80-30, 12 NRC 683, 693 (1980).
8.5A Conditions on Grants of Intervention 10 CFR 6 2.714(e) empowers a licensing board to condition an order granting intervention on such tems as may serve the purposes of restricting duplicative or repetitive evidence and of having common interests represented by a single spokesman. 10 CFR 6 2.715a deals with the general duthority to consolidate parties in construction pemit or operating license proceedings. In a license amendment proceeding, there is no good reason why the provisions of 6 2.715a cannot be looked to in exercising the power granted by $ 2.714(e), which section applies to all adjudicatory proceedings. Duke Power Company (0conee Nuclear Station and McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150 n.9 (1979).
8.6 Appeals of Rulings on Intervention 8.6(1)
General One may not appeal from any order denying an intervention petition unless the order denies the petition in its entirety. Houston Lighting
& Power Co. (Allens Creek Nuclear Generating Station, Units 1 & 2), ALAB-585, 11 NRC 469 (1980); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1).
ALAB-586, 11 NRC 472 (1980).
A licensing board's order which detemines that e petition seeking to intervene has demonstrated standing and good cause for being late but has not passed on the acceptability of contentions is not a final disposition cf the intervention petition for the purposes of 10 CFR 6 2.714a.
Cincinnati Gas and Electric Company (William H.
Zimmer Nuclear Power Station), ALAB-595,11 NRC 860, 864 (1980).
It is settled under the Commission's Rules of Practice that a petitioner for intervention may not take an interlocutory appeal from Licensing Board action cn his petition unless that action constituted an outright denial of the petition.
Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 384 (1979).
8.6(2)
Standards for Reversal The principle that licensing board deteminations F
on the sufficiency of allegations of affected 23
5 11.9.2 interest will not be overturned unless irrational presupposes that the appropriate legal standard for detemining the " personal interest" of a peti-tioner has been invoked. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 57 n.5 (1979).
8.9 Cost of Intervention 8.9(1)
Financial Assistance to Intervenors The Commission is in favor of funding intervenors but Congress has precluded such funding for fiscal year 1980. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-19,11 NRC 700 (1980) (and CLI-80-20, at 11 NRC 705).
A claim for funding by intervenor for past par-ticipation is precluded because the Commission has detemined not to initiate a program to provide funding for intervenors. Puerto Rico Power Auth. (North Coast Nuclear Plant, Unit 1),
LBP-80-15, 11 NRC 765, 767-68 (1980).
Some financial assistance has been made available to intervenors for procedural matters, such as free transcripts in adjudicatory proceedings on an application for a license or an amendment thereto in recently adopted Commission rules.
10 CFR 2.708(d), 2.712(f) and 2.750(c). (45 Fed.
Reg. 49535, July 25,1980). Although not specifically allowed by these rules, in the interest of efficiency in resolving issues in this proceedings, the Commission authorized the Doard to provide procedural financial assistance, particularly free transcripts, to intervenors in a reactor re-start proceeding. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.1), CLI-80-43,12 NRC 665, 666 (1980).
Prior to NRC policy of oroviding free transcripts of meetings to interven_rs, the Board did order transcripts to be provided free of charge to inter-venors. Dairyland Power Cooperative (La Crosse Boiling Water Reactor), Docket No. 50-409 (FTOL Proceeding) (Unpublished decision issued July 8, 1980).
8.11 Intervention in Remanded Proceedings l
The Licensing Board was " manifestly correct" in rejecting a petition requesting intervention in a remanded proceed-ing where the scope of the remanded proceeding had been limited by the Commission, and the petition for interven-tion dealt with matters outside that scope. The Licensing Board had limited jurisdiction in the proceeding and could j
consider only what had been remanded to it. Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122,124, n.3 (1979).
l 9.
Nonparty Participation--Limited Appearances and Interested States 9.2 Nonparty Interested State Although a state has a statutory right to a reasonable opportunity to participate in NRC proceedings, it may not 24 l
L
iII.10.2(3) l seek to appeal on issues it did not participate in below, or seek remand of those issues. However, the state is given an opportunity to file a brief amicus curiae.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-583,11 NRC 447 (1980).
Late decision by Governor of a state to participate as representative of an interested state can be granted, but Governor must take proceeding as he finds it. He cannot complain of rulings made or procedural arrangements settled prior to his participation. Pacific Gas and Electric Com an (Diablo Canyon Nuclear Power Plant Units 1 & 2),
0, 12 NRC 3, 8 (1980).
- 10. Discovery 10.2 Discovery Rules 10.2(1)
General A party may seek discovery of another party with-out the necessity of licensing board intervention.
Where, however, discovery)of a non-party is sought (other than by deposition, the party must request the issuance of a subpoena under Section 2.720.
Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 690 (1979).
Applicants are entitled to discovery against inter-venors in order to obtain the information necessary for Applicant to meet its burden of proof. This D
does not amount to shifting of burden to inter-venors. Pennsylvania Power & Light Company (Susquetanna Steam Electric Station, Units 1 & 2),
ALAB-613, 12 NRC 317, 338 (1980).
Intervenor may not directly seek settlement papers of the Applicant through discovery. Rule 408 of the Federal Rules of Evidence provides that offers of settlement and conduct and statements made in the course of settlement negotiations are not admissible to prove the validity of a claim.
10 CFR 2.759 states a policy encouraging settle-ment of contested proceedings and requires all parties and boards to try to carry out the settle-ment policy. Requiring a party to produce its settlement documents because they are settlement documents would be inconsistent with this policy.
Florida Power & Light Company (St Lucie Plant.
Unit No. 2). LBP-79-4, 9 NRC 164, 183-84 (1979).
(NOTE - There seems to be a gap in reasoning here regarding Rule 408, but the Board does rely on 408. See pp. 183-184.)
10.2(3)
Scope of Discovery The Licensing Board, as provided by 10 CFR 2.740(c) and 10 CFR 2.740(d), may and should, when not inconsistent with fairness to all parties, limit the extent or control the sequence of discovery to prevent undue delay or imposition of an undue burden on any party.
Metropolitan Edison Company (Three Mile Island D
Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141, 147-48 (1979).
25 l
6 II.10.2(6)A If a party has insufficient information to answer interrogatories, a statement to that effect ful-fills its obligation to respond. If the party subsequently obtains additional information, it must supplement its earlier response to include such newly acquired information, 10 CFR 9 2.740(c).
Pennsylvania Power and Light Company, et al.
(Susquehanna 5 team Electric Station, LlnTtT1 and 2), LBP-80-18, 11 NRC 906, 911 (1980).
10.2(5)
Privileged Matter F0IA does not establish new government privi-leges against discovery. Consumers Power Company (Palisades Nuclear Power facility)
ALJ-80-1, 12 NRC 117, 121 (1980).
The Commissions rules on discovery have incor-parated the exemptions contained in the F0IA.
H.
Section 2.790 of the rulas of practice is the NRC's promulgation in obedience to the Freedom of Infor-motion Act. H. at 120.
The Commission, in adopting the standards of Exemp-tion S, and the "necessary to a proper decision" as its document privilege standard under 10 CFR 2.744(d), has adopted traditional work product /
executive privilege exemptions from disclosure.
M. at 123.
The government is no less entitled to nomal privilege than is any other party in civil liti-gation. H.at127.
Any documents in final form memorializing [the Director's] decision not to issue a notice of violations impoling civil penalties does not fall within Exemption 5.
M. at 129.
(new) 10.2(6)A Protective Orders In using protected infomation, "those subject to the protective order may not corroborate the accu-racy (or inaccuracy) of outside information by using protected information gained through the hearing precass." Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2),
ALAB-600, 12 NRC 3, 6 (1980).
Protective orders regarding a security plan runs only to counsel and expert witnesses, not to intervenor group which will not be given protected infomation, and thus the order does not impinge i
upon intervenor group's ability to participate j
ef fectively in the proceeding. Pacific Gas and Flectric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592,11 NRC 744, 749 (1980).
An affidavit in support of a corporation's request for a protective order is criticized because it did not establish the basis for the affiant's personal knowledge (if any) respecting the basis for the 26
l 1
l 5 II.10.3 protective order - that is, the policies and prac-tices of the corporation with regard to preserving the confidentiality of information said to be pro-prietary in nature. The Board might well disregard the affidavit entirely on the ground that it was not shown to have been executed by a qualified individual. While it may not be necessary to have the chief executive officer of the company serve as affiant, there is ample warrant to require that facts pertaining to management policies and prac-tices be presented by an official who is in a l
position to attest to those policies and practices (and the reasons for them) from personal knowledge.
virginia Electric and Power Company (North Anna I
Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23, 28 (1979),
The Appeal B:,ard granted a protective order request but explicitly declined to find that the corporation requesting the order had met its burden of showing that the information in question was proprietary and entitled to protection from pubite disclosure under the standards set forth in Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, (1976). No party had objected to the order, and the Appeal Board granted the order in the interest of obtaining the requested information without untoward further delay. However, its action should not be taken as precedent for future cases in which relief might be sought from an adjudicatory board based upon affidavits containing deficiencies as described above. North Anna, supra, at 28.
(new) 10.2(7)
Work Product In the absence of unusual circumstances, a corpo-l rate party cannot immunize itself from otherwise l
proper discovery merely by usin-s* vers to make file searches for information re.... ced to answer i
an interrogatory. Houston Lighting & Power Company (South Texas Project. Units 1 and 2),
I LBP-79-05, 9 NRC 193,195 (1979).
(
(new) 10.2(8)
Updating Discovery Responses Parties are under an obligation to update dis-covery responses as new information becomes available after those responses have been given.
l Dairyland Power Cooperative (La Crosse Boiling l
Water Reactor) Docket No. 50-409 (FTOL Proceeding) l (Unpublished decision issued July 8,1980).
(new) 10.2(9)
Interrogatories Interrogatories will not be rejected solely on the number of questions. Pennsylvania Power &
Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 330-35 (1980).
10.3 Discovery Against the Staff Discovery against the Staff is on a different footing then discovery in general. Pennsylvania Power & Light Company (Susquehanna Steam Electric Station Units 1 and 2). ALAB-613, 12 NRC 317, 323 (1980).
27 t
i11.10.4(1)
According to provisions of 10 CFR $ 2.720, interrogatories against the Staff may be enforced only upon a showing that the answers to be produced are necessary to a proper deci-sion in the proceeding. Consumers power Company (Palisades Nuclear Power Facility), ALJ-80-1,12 NRC 117,119 (1980).
Document requests against the Staff must be enforced whert relevancy has been demonstrated unless production of the document is exempt under 10 CFR 2.790.
In that case, and only then, must it be demonstrated that disclosure is necessary to a proper decision in the matter. Palisades, supra.
(new) 10,3A Responses to Discovery Requests It is an adequate response to any discovery request to state that the information or document requested is available in public compilations and to provide suffi-cient infomation to locate the material requested.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.1), CLI-79-8,10 NRC 141,147-48 (1979).
10.4 Compelling Discovery 10.4(1)
General Section 2.740 of the NRC's Rules of Practice, under which subpoenas are issued, is not founded upon the Commissions's general rule-making powers; rather, it rests upon the specific authority to issue subpoenas duces tecum contained in Section 161(c) of the Atomic Energy Act. Therefore, the rule of FMC v. Anglo-Canadian Shipping Company, 335 F.2d 255 (9th Cir. 1964) that agency discovery rules cannot be founded on general rule-making powers does not come into play. Pacific Gas and Electric Company (Stanislaus Nuclear Project.
Unit 1), ALAB-550, 9 NRC 683, 694 (1979).
The infomation sought by an administrative sub-poena need only be " reasonably relevant" to the inquiry at hand. Stanislaus, supra, at 695.
Subpoena must be issued in good faith, and pur-suant to legitimate agency investigation. Metro-politan Edison Company (Three Mile Island, Unit 2),
CLI-80-22,11 NRC 724, 729 (1980).
Referral of matters to Department of Justice for criminal proceedings, which are separate and dis-tinct from matters covered by subpoenas issued by Director of Office of Inspection and Enforcement, does not bar Commission from pursuing its general health and safety and civil enforcement responsi-bilities through issuance of subpoena. 9161(c) of AEA, 42 USC 2201(c). Metropolitan Edison Company (Three Mlle Island, Unit 2), CLI-80-22, 11 NRC 724, 725 (1980).
10 CFR 2.720(a) contemplates e_x_ parte applications for the issuance of subpoenas. Although the Chair-man of the Licensing Board "may require a showing of general relevance of the testimony or evidence sought," he is not obligated to do so. The matter of relevance can oe entirely deferred until such 28
i!!.10.4(3) time as a motion to quash or modify the subpoena is filed. One of the grounds for such a motion is that the subpoena " requires evidence not rele-vant to any n.atter in issue." Pacific Gas and Electric Company (Stanislaus Nuclear Project.
Unit 1), ALAB-550, 9 NRC 683, 698 n.22 (1979).
Section 2.720(f) of the Rules of Practice specifi-cally provides that a licensing board may condition the denial of a motion to quash or modify a subpoena duces tecum "on just and reasonable terms." That phrase is expansive enough in reach to allow the imposition of a condition that the subpoenaed person or company be reimbursed for document production costs. Pacific Gas and Electric Com an (Stanislaus Nuclear Project Unit 1),
0,9NRC683,698-699(1979).
L Generally, document production costs will not be awarded unless they are found to be not reason-ably incident to the conduct of a respondent's business. Stanislaus, supra, at 702.
Under 10 CFR 9 2.740 and i 2.740b, the presiding officer of a proceeding will rule upon motions to compel discovery which set forth the questions con-tained in the interrogatories, the responses of the party upon whom they were served, and arguments in support of the motion to compel discovery. An evasive or incomplete answer or response to an interrogatory shall be treated as a failure to answer or respond. _ Houston Light & Power Company, (South Texas Project, Units 1 and 2), LBP-79-05, 9 NRC 193, 194-95 (1979).
Specific objections must be made to the alleged inadequacy of discrete responses. South Texas, supra, at 195.
10.4(2)
Sanctions for Failure to Comply with Discovery Orders A licensee's motion for sanctions against an inter-venor for failure to comply with discovery requests poses a three part consideration: (1) due process for the licensee; (2) due process for the inter-venor; and (3) an overriding consideration of the public interest in a complete evidentiary record.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-80-17,11 NRC 893, 897 (1980).
10.4(3)
Compelling Discovery From ACRS and ACRS Consultants Although 10 CFR 9 2.720 did not explicitly cover consultants for advisory boards like the Advisory Committee on Reactor Safeguards ( ACRS), it could fairly be read to include them where they have served in that capacity. Therefore, intervenors seeking to subpoena consultants to ACRS were required to show the existence of exceptional circumstances before the subpoenas were issued.
Pacific Gas and Electric Company (Diablo Canyon
)
Nuclear Power Plant, Units 1 and 2), ALAB-519, 9 NRC 42, 42 n.2 (1979).
29
6 III.I.2(1) 10.5 Appeals of Discovery Rulings.
Questions about the scope of discovery concern matters which are particularly within a trial board's competen',e and appel-late review of such rulings is usually best conducted at the end of case. Pennsylvania Power & Light Company, et al.
(Susquehanna Steam Electric Station, Units 1 and 2T--
ALAB-613, 12 NRC 317, 321 (1980).
A discovery order entered against a non-party is a final order and thus is appealable. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 686 n.1 (1979).
!!!. HEARINGS 1.
Licensing Boards 1.1 General Role Where a matter has been considered by the Commission, it may not be reconsidered by a Board. Commission precedent must be followed. Virginia Electric & Power Co. (North Anna Nuclear Powr Station, Units 1 & 2), ALAB-584,11 NRC 451, 463-65 (1980).
Licensing Boards are capable of fairly judging a matter on a full record, even where the Commission has expressed tentative views. Nuclear Engineering Company, Inc.
(Sheffield, IllinoTs Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 4-5 (1980).
A licensing board may conduct separate hearings on environ-mental, and radiological health and safety issues. Absent persuasive reasons against segmentation, contentions raising environmental questions need not be heard at the health and safety stage of a proceeding notwithstanding the fact they may involve public health and safety s onsiderations.
Pennsylvania Power and Light Company, et al. (Susquehanna Steam Electric Station, Units 1 and 2)TLF-80-18,11 NRC 906, 908 (1980).
1.2 Powers and Duties of Licensing Boards 1.2(1)
General A Licensing Coard's powers are not coextensive with that of the Commission, but are based solely on delegations expressed or necessarily implied in regulation or in other Commission direction.
A Licensing Board is not delegated authority to and cannot order a hearing in the public interest under 10 CFR 2.104(a). The notice constituting a l
construction permit Licensing Board does not pro-vide a basis for it to order a hearing on whether an operating license should be granted. A con-struction pennit licensing board's jurisdiction will usually terminate before an operating license application is filed. Thus, it probably never could be delegated authority or determine whether a hearing on the operating license application is needed in the public interest. Similarly, the general authority of a Licensing Board to condi-O 30
i 111.1.2(1) l tion pemits or licenses provide a basis for it to initiate other adjudicatory proceedings. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18 (1980); reconsidered, ALAB-581, 11 NRC 233 (1980),
modified, CLI-80-12, 11 NRC 514 (1980).
A licensing board's jurisdiction is defined by the Commission's notice of hearing. Commonwealth Edison Company (Zion Station, Units 1 and 2),
ALAB-616, 12 NRC 419, 426 (1980); Northern Indiana Public Service Company, (Bailly Generating Station, Nuclear 1-
" LAB-619, 12 NRC 558, 565 (1980);
Cincinnati bu and Electric ( epany, et al.
(William H. Zimmer Nuclear Station), UP 79-24,
~
10 NRC 226, 298 (1979).
Cases involving a determination of Licensing Board's authority: The Licensing Board has authority to consider materials license ques-tions where a petitioner raised questions regard-ing a materials license before a board delegated authority to consider an operating license appli-cation. Cincinnati Gas and Electric Company, et al. (William H. Zimmer Nuclear Station),
LBP-79-24, 10 NRC 226, 228 (1979).
The Licensing Board has the requisite authority to detemine de novo (following receipt of evi-dence on the subject) what acceleration level should be assigned for a postulated earthquake.
Dairyland Power Cooperative (La Crosse Boiling ).
D Water Reactor). ALAB-618, 12 NRC 551, 552 (1980 A hearing is not mandatory on an operating license, but where a Board is convened it may look at all serious matters it deems merit further exploration.
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 227, 229-231 (1980).
Absent special circumstances, a Licensing Board may consider ab_ initio whether it has power to grant relief that has been specifically sought of it.
Every tribunal possesses inherent rights and duties to determine in the first instance its own juris-diction. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980).
A 10 CFR Part 70 materials license is an " order" which under 10 CFR 2.717(b) may be " modified" by a licensing board delegated authority to consider a 10 CFR Part 50 operating license.
Cincinnati Gas and Electric Company (William H. Zimmer Nuclear Station) L6P-79-24,10 NRC 226,228(1979).
A licensing board has authority under 10 CFR 2.711(a) to extend or lessen the times provided in the Rules for taking any action. Houston Lighting & Power Co. ( Allens Creek Nuclear Generating Station Unit 1), ALAB-574,11 NRC 7, 13 (1980).
If a licensing board detemines that a participa-tion agreement prohibiting the flow of electricity 31
5 111.1.4(2) in interstate commerce is inconsistent with the antitrust laws, the board may impose license con-ditions despite a federal court injunction prohi-biting participant from violating agreement.
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27,10 NRC 563, 577 (1979).
Adjudicatory boards do not possess the authority to direct the holding of hearings following the issuance of a construction pemit, nor have boards been delegated the authority to direct the Staff in the perfomance of its administrative functions.
Adjudicatory boards concerned about the conduct of the Staff's administrative functions should bring the matter to the Commission's attention or certify the question to the Commission. As part of its inherent supervisory authority, the Commission has the authority to direct the Staff's perfomance of administrative functions, even over matters in adjudication. Carolina Power and Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, 11 NRC 514, 516-17 (1980).
The docketing and review activities of the Staff are not under the supervision of the Licensing Board. Only in the most unusual circumstances should a licensing board interfere in the review activities of the Staff. Philadelphia Electric Com an (Fulton Generating Station, Units 1 and 23, 10 NRC 220, 223-24 (1979).
Licensing Board lacks authority to consider motion for an Order to Show Cause pursuant to 10 CFR 95 2.202 and 2.206. Puerto Rico Electric Power Authority (North Coast Nuclear Plant Unit 1),
LBP-80-16, 11 NRC 765, 767 (1980).
Licensing Board lacks authority to consider claim for damages. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1),
LBP-80-15, 11 NRC 765, 767 (1980).
l 1.4 Disqualification of a Licensing Board Member 1.4(1)
_ Motion to Disqualify, Requirements An intervenor's status as a party to a proceeding does not of itself give it standing to move for disqualification of a Licensing Board member on another group's behal f.
Puget Sound Power and l
Light Company, et al. (Skagit Nuclear Power l
Project, Units 1 and 2), ALAB-556,10 NRC 30, l
32-33 (1979).
A challenged member of an Appeal Board must first be given an opportunity to disqualify himself, before the Commission will act. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-80-9,11 NRC 436 (1980).
(re ti tled) 1.4(2)
Grounds for Disqualification (previously " Bias")
Licensing Boards are capable of fairly judging a matter on a full record, even where the Commis-sion has expressed tentative views. Nuclear i
l l
32
$ III.4.1 Engineering Co. Inc. (Sheffield Illinois Low-Level Radioactive Waste Disposal Site) CLI-80-1, 11 NRC 1, 4-5 (1980).
Standing alone, the failure of an adjudicatory tribunal to decide questions before it with suit-able promptness scarcely allows an inference that the tribunal (or a member thereof) harbors a personal prejudice against one litigant or another. Puget Sound Power and Light Company, E d f).(ALAB-556, 10 NRC 30, 34 (1979).
et al. Skagit Nuclear Power Project, Units 1 The disqualification of a licensing board member may not be obtained on the ground that he or she committed error in the course of the proceeding at bar or some earlier proceeding. Dairyland Power Cooperative (La Crosse Boiling Water Reactor), ALAB-614, 12 NRC 347, 348-49 (1980).
In the absence of bias, an Appeal Board member who participated as a adjudicator in a construc-tion pennit proceeding for a facility is not required to disqualify himself from participat-ing as an adjudicator in the operating license proceeding for the same facility. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant Units 1 and 2), CLI-80-11,11 NRC 511 (1980).
lA Export Licensing Hearings 1A.1.
Scope of Hearing The export licensing process is an inappropriate forum to consider generic safety questions posed by nuclear power plants. Under the Atomic Energy Act, as amended by the Nuclear Non-Proliferation Act of 1978, the Commission in making its export licensing determinations, will consider non-proliferation and safeguards concerns, and not foreign health and safety matters. Westinghouse Electric Corp.
(Export to South Korea), CLI-80-30,12 NRC 253, 260-51 (1980).
2.
Hearing Scheduling Matters (new) 2.7 In Camera Hearings No reason exists for an in camera hearing on security grounds where there is nTshowing of some incremental gain in security from keeping the infonnation secret. Duke Power Co. ( Amendment to Materials License SNM-17737ans-portation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), CLI-80-3, 11 NRC 185, 186(1980).
Procedures for in camera hearings are discussed. Pacific Gas & Electric To. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 NRC 227 (1980).
4 Sumary Disposition 4.1 General Commission Rules of Practice governing motions for sumary disposition, 10 CFR $ 2.749, are modelled in Rule 56 of 33
$ !!!.4.4 the Federal Rules of Civil Procedure. Public Service Co, of Oklahoma (Black Fox Station Units 1 f, 2), ALAB-573, 10 NRC 775, 787, n.51 (1979).
On its face, 10 CFR 6 2.749 provides a remedy only with regard to matters which have not already been the subject of an evidentiary hearing in the proceedings at bar, but which are susceptible of final resolution on the papers submitted by the parties in advance of any such hearing.
Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 18, and 28), ALAB-554, 10 NRC 15, 19 (1979).
In a spent fuel pool expansion proceeding, the Licensing Board summarily dismissed some contentions upon finding that no genuine issue of material fact was raised.
Certain matters are not covered in a license application, where those matters do not allege or raise a safety ques-tion or a matter of environmental concern. Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), LBP-79-14, 9 NRC 557, 566-67 (1979).
There is no procedure (short of withdrawal by the Appli-cant) for a Board's disposition of a construction permit application without a hearing on health, safety and envi-ronmental issues, 42 U.S.C. 2239 and 10 CFR $ 2.104 A
motion for summary disposition is denied because 10 CFR
$ 2.749(d) states that such a motion may not be used to determine the ultimate issues as to whether a CP shall be issued. Puerto Rico Electric Power Authority (North Coast Nuclear Plant Unit 1), LBP-80-15,11 NRC 765, 767 (1980).
/.3 Motions for Summary Disposition 4.3(3)
Content of Motions and Responses Movant's papers which are insufficient to show an absence of an issue of fact, cannot premise a grant of summary judgment. Similarly, a response to motion for summary judgment must have a statement of material facts. Mere alle-gations and denials will not suffice, but there must be a showing of genuine issues of fact.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451 (1980).
4.3(4)
Content of Summary Judgment Order In grant of summary judgment, Licensing Board should set forth legal and factual basis for action. Where it has not the Appeal Board will examine the record and see if there are any genuine issues. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 F2), ALAB-584, 11 NRC 451, 453, n.4 (1980).
4.4 Summary Disposition Rules Answer filed in response to summary disposition motion, in support of the motion, was not considered by the Licensing Board because 10 CFR 6 2.749 provides only for answers
" opposing the motion." Public Service Electric and Gas Co.
(Salem Nuclear Generating Station, Unit 1), LBP-79-14, 9 NRC 557 (1979). Subsequently, the holding in Salem, supra, was rendered invalid by a change to 10 CFR $ 2.749(a) 34
5111.10.2(1)
}
which specifically permits responses in support of, as well as in opposition to, motions for summary disposition.
45 FR 68919 (1980).
4.5 Appeals from Rulings on Summary Disposition Where a Licensing Board has not set forth the legal and factual basis for its action on a summary judgment motion, the Appeal Board will examine the record to see if there are any genuine issues. Virginia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 453, n.4 (1980).
6.
Burden and Means of Proof 6.1 Duties of Applicant / Licensee The NRC is dependent upon all of its licensees for accurate and timely information. The Licensee must have a detailed knowledge of the quality of installed plant equipment.
Petition for Emergency and Remedial Action, CLI-80-21, 11 NRC 707, 112 (1980).
The ultimate burden of persuasion rests with applicant and with NRC Staff to extent Staff supports the applicant's position. Parties saddled with this burden typically pro-ceed first and then have right to rebut the case presentri by their adversaries. Philadelphia Electric Co., et al.
(Peach Bottom Atomic Power Station, Units 2 & 3), ~ALAB 566, 10 NRC 527, 529 (197.
6.3 Specific Issues - Means of Proof 6.3(7)
Management Capability Areas of inquiry to detemine if a utility is capable of operating a facility are outlined in Metropolitan Edison Co (Three Mlle Island Nuclear Station, Unit No. 1), CLI-80-5, 11 NRC 408 (1980);
Carolina Power and Light Co. (Shearon liarris Nuclear Power Plant Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18 (1980), reconsidered, ALAB-581, 11 NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
10.
Evidence 10.1 General Where Appeal Board is not sure of evidence considered below, it asks Licensing Board to identify that evidence. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 NRC 227, 228-29 (1980).
Reliance on secondary evidence is no subsitute for direct evidence. Board reversed where findings were based on an opinion of a plan, and not the plan itself. Diablo Canyon, supra, at 229.
10.2 Rules of Evidence 10.2(1)
Admissibility A detemination on materiality will precede the admission of an exhibit into evidence, but this is not an ironclad requirement in administrative 35
i III.11.5 proceedings in which no jury is involved. The determinations of mateciality could be safely lef t to a later date wi;hout prejudicing the interests of any party public Service Company of New Hampshire, et al. 'Seabrock Station, Units 1 and 2), ALXEi-Tf0, 9 NRC 48, 50 n.2 (1979).
(new) 10.2(6)
Government Documents NRC adjudicatory boards may follow Rule 902 of the Federal Rules of Evidence, waiving the need for extrinsic evidence of authenticity as a pre-condition to admitting official government docu-ments to allow into evidence government documents.
Public Service Company of New Hampshire, et al.
(Seabrook Station, Units 1 and 2), ALAB-520, 9 NRC 48, 49 (1979).
- 11. Witnesses 11.1 Compelling Appearance 11.l(3)
ACRS Members The Appeal Board, at intervenors' request directed that certain consultants to the nCRS appear as witnesses in the proceeding before the Board. Such an appearance was proper under the circumstances of the case, since the ACRS con-sultants had testified via subpoena at the licensing board level at intervenors request.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-604, 12 NRC 149, 150-51 (1980).
11.4 Board Witnesses In the interest of a complete record, the Appeal Board may order the Staff to sutxnit written testimony from a
" knowledgeable witness" on a particular issue in a pro-ceeding. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-607,12 NRC 165,167(1980).
11.5 Expert Witnesses it is not acceptable for an expert witness to state his ultimate conclusions on a crucial aspect of the issue being tried, and then to profess an inability - for what-ever reason - to provide the foundation for them to the decision maker and other litigants. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555,10 NRC 23, 26 (1979).
A witness testifying to the results of an analysis need not have at hand every piece of datum utilized in per-forming that analysis. In this area, a rule of reason must be applied. It is not unreasonable, however, to insist that, where the outcome on a clearly defined and substantial safety or environmental issue may hinge upon the acceptance or rejection of an expert conclusion rest-ing in turn upon a performed analysis, the witness make available (either in his prepared testimony or on the stand) sufficient information pertaining to the details of the analysis to permit the correctness of the conclu-sion to be evaluated. North Anna, supra, at 27.
36
I l 111.15.1
- 13. Record 13.1 General Where Appeal Board is not sure of evidence considered below, it asks Licensing Board to identify that evidence. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant.
Units 1 & 2) ALAB-580, 11 NRC 227, 228-29 (1980).
l 13.2 Supplementing Record by Affidavits I
There is no significance to the content of affidavits which do not disclose the identity of individuals making statements in the affidavit. Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station Unit No. 2).
IEAF525, 9 NRC 111,114 (1979).
13.4 Material not Contained in Record Adjudicatory decisions must be supported by evidence pro-perly in the record. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2) ALAB-580,11 NRC 227,230(1980).
14.
Interlocutory Review via Directed Certification Appeal boards undertake discretionary interlocutory review of a licensing board ruling only where it either (1) threatens 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) affects the basic structure of the proceeding in a pervasive or unusual manner. Puget Sound Power & Light Co.
(Skagit Nuclear Power Project. Units 1 & 2), ALAB-572,10 NRC 693, 694 (1979). The Appeal Boards certification authority was not intended to be applied to a mixed question of law and fact in which the factual element was predominant. Offshore Power Systems I
(Floating Nuclear Power Plants), ALAB-517, 9 NRC 8,11 (1979) quoting Public Service Company of Indiana (Marble Hill Statiun Units 1 and 2) ALAB-405, 5 NRC 1190,1192 (1977).
The Commission's Rules of Practice, 10 CFR 2.714a, prohibit a person from taking an interlocutory appeal from an order entered on his intervention petition unless that order has the effect of denying the petition in its entirety. Texas Utilities Generating Company, et al. (Comanche Peak Steam Electric Station, Units 1 & 2), ALAB-521.
TZ M C 578, 579 (1980).
- 15. Licensing Board Findings 15.1 General A licensing board decision which rests significant findings on expert opinion not susceptible of being tested on exami-nation of the witness is a fit candidate for reversal.
Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555,10 NRC 23, 26 (1979).
Licensing boards passing on construction pennit applica-tions must be satisfied that requirements for an operating license, including those involving management capability, can be met by the applicant at the time such license is sought. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18, 26-28 (1980), modified, CLI-80-12, 11 NRC 514 (1960).
37 f
5 111.17.1 Constr action pemit licensing board has no authority to condition such a permit on the holding of an verating license hearing. Shearon Harris, supra.
Where evidence may have been introduced by intervenors in an operating license proceeding, but the construction permit Licensing Board made no explicit findings with regard to those matters, and at the construction pemit stage the proceeding was not contested, the operating license Licensing Board will decline to treat the con-struction permit Licensing Board's general findings as an implicit resolution of matters raised by intervenors.
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 79 n.6 (1979).
- 16. Res Judicata and Collateral Estoppel In appropriate circumstances, the doctrines of res judicata and col-lateral estoppel which are found in the judiciaT setting are equMy present in administrative adjudication. One such exception is the existence of broad public policy considerations on special public interest f actors which would outweigh the reasons underlying the doctrines. Houston Lighting & Power Co., et al. (South Texas Project Units 1 & 2), LBP-79-27,10 NRC STI. 674-75 (1979).
There is no basis under the Atomic Energy Act or NRC rules for excluding safety questions at the operating license stage on the basis of their consideration at the construction permit stage.
The only exception is where the same party tries to raise the same question at both the construction permit and operating license stages, where principles of res judicata and collateral estoppel then come into play. Houston Lighting and Power Co. (South Texas Projed, Units 1 and 2), LBP-79-10, 9 NRC 439, 464 (1979).
A party countering a motion for summary judgment based on m judicata need only recite the facts found in the other proceedi.js, and need not independently support those " facts.
Houston Lighting
& Power Co. (South Texas Project, Units 1 & 2), ALAB-575,11 NRC 14, 15 n.3 (1980).
Collateral estoppel requires presence of at least four elements in order to be given effect: (1) issue sought to be precluded must be same as that involved in prior action (2) issue must have been actually litigated, (3) issue must have been determined by a valid and final judgment, and (4) the determination must have been essential to the prior judgment. Houston Lighting & Power Co., et al. (South Texas Project, Units 1 & 2), LBP-79-27,10 NRC 563, 56F(T779).
Where the legal standards of two statutes are significantly different, the decision of issues under one statute does not give rise to col-lateral estoppel in litigation of similar issues under a dif ferent sta tu te.
Houston Lighting & Power Co. (South Texas Project Units 1
& 2), LBP-29-27,10 NRC 563, 571 (1979).
Denial of sumary judgment on basis of res judicata and collateral estoppel af firmed on basis of opinion below (LBP-79-27,10 NRCT67, (1979)). Houston Lighting & Power Co., et al. (South Texas Project.
Units 1 & 2), ALAB-575,11 NRC 14 (1980).
(new) 17. Termination of Proceedings 17.1 Termination of Proceedings, Procedures Temination of adjudicatory proceedings on a construction permit application should be accomplished by a motion filed by applicant's counsel with tnose tribunals having present 38
i IV.3.2 jurisdiction over the proceeding. A letter by a lay off t-cial to the Commission when the Licensing Board has juris-diction over the matter is not enough. Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station Units 2 and 3), AUB T22,12 NRC 667, 668-9 (1980).
17.2 Termination of Proceedings: Post Termination Authority of Commission 10 CFR $ 2.107(a) expressly empowers Licensing Boards to impose conditions upon the withdrawal of a permit or license application after the issuance of a notice of hearing. Davis-Besse. Units 2 and 3, supra, at 669, n.2 (1980).
IV.
POST HEARING MATTERS 1.
Settlements and Stipulations 10 CFR 6 2.759 expressly provides, and the Commiv:f on stresses, that the fair and reasonable settlement of conteued initial licensing proceedings is encouraged. Philadelphia Electric Com an, ~et al. (Peach Bottom Atomic Power Station Unit 3),
2, 6 H C 279, 283 (1979).
3.
Initial Decision 3.1 General It is the right and duty of a Licensing Board to include in its decision all determinations of matters on an apprai-sal of the record before it. Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4),
ALAB-577, 11 NRC 18, 30 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
A Licensing Board has authority to condition a permit or license to require measures in plant construction or operation in the interests of safety or the environment.
However, a Licensing Board considering a construction permit application cannot determine an operating license adjudicatory hearing will be necessary in the public interest on management capability when considering a construction permit application. It lacks the factual basis to do so, since the facts may change before the operating license is sought. Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4),
ALAB-577, 11 NRC 18, 26-30 (1980), reconsidered, ALAB-581, 11 NRC 233 '1980), modified CLI-80-12, 11 NRC 514 (1980).
The sanctioning of a construction permit does not make automatic the later issuance of a license to operate.
The Board directed that certain issues addressed in the construction pennit proceedings be reassessed by the a
Staff and the applicant at the operating license review stage. Public Service Electric and Gas Company, Atlantic i~
City Electric Company (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 NRC 14, 37 (1979).
3.2 Reconsideration of Initial Decision Doubts concerning whether requirements on plans for opera-tion can be met, <fo not require the suspension of outstand-ing construction pennits,10 CFR 50.34(a). Carolina Power
& Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 22 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
4 i
39
$ IV.4.3 4
Reopening Hearings 4.1 General The Appeal Board dismissed for want of jurisdiction a motion to reopen hearings in a proceeding in which the Appeal Board had issued a final decision, followed by the Commission's election not to review that decision.
The Commission's decision represented the agency's final action, thus ending the Appeal Board's authority over the cause. The Appeal Board referred the matter to the Director of Nuclear Reactor Regulation because, under the circumstances, he had the discretionary authority to grant the relief sought subject to Commission review.
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 arid 2), ALAB-5?.0, 9 NRC 261, 262 (1979).
4.2 Motions to Reopen 4.2(1)
Time for Filing Where jurisdiction terminated on all but a few issues, Board should not entertain unrelated new or reopened issues even where there are supervening developments. The Board has no jurisdiction to consider such matters. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579,11 NRC 223, 225-26 (1980),
4.3 Grounds for Reopening In order to reopen licensing proceeding, intervenor must show change in material fact which warrants litigation anew. Carolina Power & Light Co. Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-79-10,10 NRC 675, 677(1979).
Whether to reopen a record in order to consider new evi-dence turns on the appraisal of several factors: (1) Is the motion timely? (2) Does it address significant safety or environmental issues? (3) Might a different result have been reached had the newly proferred material been considered initially? Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980).
A motion to reopen an administrative record may rest on evidence that came into existence after the hearing closed.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant. Units 1 and 2), ALAB-598,11 NRC 876, 879 at n.6 (1980).
Evidence of a continuing effort to improve reactor safety does not necessarily warrant reopening a record. Diablo Canyon, supra, a t 887.
Repetition of arguments previously presented does not pre-sent a basis for reconsideration. Nuclear Engineering Company, Inc. (Sheffield, I?linois 5 -Level Radioactive Waste Otsposal Site), CLI-80-1, 11 NRC 1, 5 (1980).
O 40
5 IV.6 l
Long range forecasts of future electric power demands are especially uncertain as they are affected by trends in usage, increasing rates, demographic changes, industrial growth or decline, the general state of economy, etc.
These factors exist even beyond the uncertainty that inheres to demand forecasts: assumptions on continued use from historical data, range of years considered, the area considered, extrapolations from usage in residential, commercial, and industrial sectors, etc. The general rule applicable to cases involving differences or changes in demand forecasts is stated in Niagara Mohawk Power Corp.
(Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 352-69 (1975). Accordingly, a possible one-year slip in construction schedule was clearly within the margin of uncertainty, and intervenors had failed to present information of the type or substance likely to have an ef fect on the need-for-power issue such as to warrant relitigation. Carolina Power and Light Co.
(Shearon Harris Nuclear Power Plant Units 1-4), CLI-79-5, 9 NRC 607, 609-10 (1979).
A possible one-year slip in need-for-power forecasts is legally insufficient to order re11tigation of the issue of need-for-power. Shearon Harris, supra, at 610.
5.
Motions to Reconsider Repetition of arguments previously presented does not present a basis for reconsideration. Nuclear Engineering Company, Inc.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site).
CL!-80-1, 11 NRC 1, 5-6 (1980).
6.
Sua Sponte Review by the Appeal Board Appeal Board review will be routinely undertaken of a_ny, final dispo-n sition of a licensing proceeding founded upon substantive determi-nations of significant safety or environmental issues. Northern States Power Company (Monticello Nuclear Generating Plant. Unit 1),
ALAB-611, 12 NRC 301, 303-304 (1980).
The Appeal Board, on g a sponte review, has the authority to reject or modify the findings of the Licensing Board. Monticello, supra, at 304 A case, when properly before the Appeal Board on sua sponte review, is not confined to those issues on which the Liceiising Board made substantive findings. Issues not raised by parties may be con-sidered. However, in operating license proceedings such issues may be considered only when serious safety environmental or common defense and security matter exist. Monticello, supra, at 309.
In the course of its review of an initial decision in a construction permit proceeding, an Appeal Board is free to raise sua sponte issues which were neither presented to nor considered by thUicensing board.
Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 hRC 704, 707 (1979).
If the Appeal Board determines sua_ sponte more information is needed, it may take evidence to develop the record. Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1
& 2), ALAB-578, 11 NRC 189 (1980).
The Appeal Board, in lieu of remand, may undertake the conduct of hearings in the interests of expedition. Pocific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 227,231(1980).
41
9 V.l.5 V.
APPEALS 1.
General (new) 1.0 Unpublished Opinions Unless published in the official NRC reports, decisions and orders of appeal boards are usually not to be given precedential effect in other proceedings. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 &
2), ALAB-572, 11 NRC 744, 745 (1980).
1.1 Right to Appeal A prevailing party may defend a result on any ground pre-sented in the record, including one rejected below, once the other side appeals. Public Service Co. of Oklahoma (Black Fox Statinn, Units 1 & 2), ALAB-573, 10 NRC 775, 789 (1979).
1.2 Who Can Appeal One seeking to appeal an issue must have participated and taken all timely steps to correct the error. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-583,11 NRC 447 (March 12,1980).
The Commission has long construed its Rules of Practice to allow the Staff to appeal from initial decisions. The deci sion of the presiding officer at the hearing becomes the final action of the Commission only if not reviewed on its initiative and if no exceptions are taken. 10 CFR 6 2.762 explicitly treats the Staff as a party for purposes of filing exceptions. In the Matter of Radiation Technology,
_Inc., ALAB-567, 10 NRC 533, 547-48 (1979).
1.4 Time for Filing Appeals Finality of a decision is usually detemined by examining whether it disposes of at least a major segment of the case or teminates a party's right to particiate. The general policy is to strictly enforce time limits for appeals following a final decision. However, where the lateness of filing was not due to a lack of diligence, but, rather, to a misapprehension about the finality of a Board decision, the Board will allow the appeal as a matter of discretion. Nuclear Engineering Company, Inc.
(Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 159-60 (1980).
A petitioner's request that the denial of his intervention petition be overturned, treated as an appeal unoer 10 CFR 6 2.714a, is denied as untimely where it was filed almost 3 months after the issuance of a Licensing Board's order, especially in the absence of a showing of good cause for the failure to file an appeal on time. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1), ALAB-54/, 9 NRC 638, 639 (1979).
1.5 Matters Considered on Appeal Where a matter has been considered by the Commission, it may not be reconsidered by a Board. Commission precedent must be followed. Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584,11 NRC 451, 463-65 (1980).
42
l V.I.5(5)
}
One may not appeal from an order delaying a ruling, when appeal will lie from the ruling itself. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Uni t 1), ALAB-585,11 NRC 469, 470 (1980).
Although a party generally, may appeal only on a showing of discernable injury, the Staff may appeal on questions of precedential importance. A question of precedential importance is a ruling that would with reasonable probabi-lity be followed by other Boards facing similar questions.
A question of precedential importance can involve a question of remedy. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18, 23-25 (1980), modified CLI-80-12, 11 NRC 514 (1580).
1.5(2)
Issues Raised for the First Time on Appeal An appeal may only be based on matters and argu-ments raised below. Houston lighting & Power Co.
( Allens Creek Nuclear Generating Station Unit 1),
ALAB-582, 11 NRC 239, 242 (1980).
Where jurisdiction tenninated on all but a few issues, Board should not entertain new or reopened issues even where there are supervening developments. The Board has no jurisdiction to consider such matters. Florida Power & Light Co.
(St. Lucie Nuclear Power Plant, Unit No. 2),
ALAB-579, 11 NRC 223 (1980).
Where finality has attached to scme but not all issues, appeal board jurisdiction to entertain new matters is deper. dent upon the existence of a reasonable hexu! batween those matters and the issues remaining before the board. Virginia Electric and Power Campany (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 707 (1979).
The jurisdiction of an appeal board to consider new matters arising during the course of its review of a licensing board decision does not hinge upon the nature of the proceeding.
Rather, irrespective of whether a construction permit or an operating license is involved, the pivotal factor is the posture of the case and the degree of finality which has attached to the agency action which is in question.
North Anna, supra, at 707.
The Appeal Board dismissed as moot intervenors' motion to introduce a new contention, where the matter is to be explored on the Appeal Board's own motion and intervenors will have the oppor-turity to participate in that exploration.
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-537, 9 NRC 407, 412-13 (1979), reconsid denied, ALAB-543, 9 NRC 626 (1979).
1.5(5)
Consolidation Upon Consideration of Generic Issues The Appeal Board consolidated and scheduled for hearing radon cases where intervenors are active-ly participating, and held the remaining cases in abeyance. Where the issues are largely generic, l
43
5 V.1.6(1) consolidation will result in a more manageable number of litigants, and relevant considerations will likely be raised in the first group of con-solidated cases. Philadelphia Electric Co.,
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-540, 9 NRC 428, 433 (1979) reconsid.
denied, ALAB-546, 9 NRC 636 (1979).
1.6 Appeal Board Actions 1.6(1)
Role of Appeal Board Appeal board review will be routinely undertaken of a_ny, final disposition of a licensing proceed-ing that either was or had to be founded upon substantive deteminations of significant safety or environmental issues. Washington Public Power System (WPPSS Nuclear Project No. 2), ALAB-571, 10 NRC 687, 692 (1979).
In the course of its review of an initial deci-sion in a construction permit proceeding, an appeal board is free to _s_Ua sponte raise issues U
which were neither presented to nor considered by the licensing board. Virginia Electric and Power Co. (North Anna Nuclear Power Station.
Units 1 & 2), ALAB-551, 9 NRC 704, 707 (1979).
If conditions on a license are invalid, the Appeal Board may either remand the matter or prescribe a remedy itself. Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 31 (1980), reconsidered, ALAB-581, 11 NRC 233 (1980), modified CLI-80-12, 11 NRC 514 (1980).
Where Appeal Board is not sure of evidence consid-ered below, it asks Licenisng Board to identify that evidence. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant Units 1 & 2), ALAB-580, 11 NRC 227, 228 (1980).
Appeal Board, in lieu of remand, undertakes the conduct of hearings. Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant Units 1 & 2),
ALAB-580, 11 NRC 227, 231 (1980); Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-578,11 NRC 189,190 (1980).
Once an appeal board has wholly teminated its review of an initial decision - whether it be a construction pemit or an operating license pro-ceeding - its jurisdiction over the proceeding comes to an end. Virginia Electric & Power Co.
(North Anna Nuclear Power Station, Units 1 & 2),
ALAB-551, 9 NRC 704, 708 (1979).
The Appeal Board denied intervenors' motion requesting broad discovery in a matter to be heard by the Appeal Board, and directed the parties to provide material infomally in order to reduce the extent of discovery disputes likely to be presented to the Appeal Board.
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-543, 9 NRC 626, 627 (1979).
44 t
1 i V.2.2 1.6(3)
Standards for Reversing Licensing Board on Findings of Fact Adjudicatory decisions must be supported by evi-dence properly in the record. Pacific Gas &
Electric Co. (Diablo Canyon Nuclear Power Plant.
Units 1 & 2), ALAB-580, 11 NRC 227, 230 (1980).
Where Licensing Board imposes an incorrect remedy, an Appeal Board will search for a proper one.
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-581,11 NRC 233, 234-35 (1980), modified, CLI-80-12, 11 NRC 514(1980).
License amended to require prompt notification of Staff of any change in operating procedures. How-ever, Appeal Board refuses to order monitoring where lesser surveillance will suffice. Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-578, 11 NRC 189, 219-20, 222 (1980).
1.6(5)
Imediate Effectiveness of Appeal Board Decision Decisions and orders of an Appeal Board are immediately effective. Absent an Appeal Board's or the Commission's issuance of a stay, a Licensing Board is both entitled and duty-bound to carry out Appeal Board directives with suit-able dispatch. Duke Power Company (Perkins Nuclear Station Units 1, 2, and 3), ALAB-597, 11 NRC 870, 873-74 (1980).
(new) 1.6( 7)
DOgualification of Appeal Board Member In denying a petition to review a decision by an Appeal Board member who decided not to recuse himself, the Commission ruled that in the absence of bias, an Appeal Board member who participated as a adjudicator on appeal in a construction per-mit proceeding need not disqualify himself from participating as an adjudicator in the operating license proceeding for the same facility.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-80-11, 11 NRC 511, 512 (1980).
2.
Stays Pending Appeal 2.2 Requirments for a Stay 10 CFR i 2.788 confers the right to seek stay relief only upon those who have filed (or intend to file) a timely appeal from the decision or order sought to be stayed.
Portland General Electric Company, et al. (Trojan Nuclear Plant).ALAB-524,9NRC65,68-69(Tf73T.
The Commission stated that the weightiest standard applied to stay motions is the need to maintain the status quo --
whether the party requesting a stay has shown that it will be irreparably injured unless a stay is granted.
Westinghouse Electric Corp. (Exports to the Phillipines)
CLI-80-14,11 NRC 631, 662 (1980).
45
9 V.5.3(1) 3.
Specific Appealable Matters 3.1 Rulings on Intervention One may not appeal from an order denying intervention unless the order denies the petition in its entirety.
Houston Lighting A Power Co. ( Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-586,11 NRC 472, 473 (1980).
Under settled practice, appeal boards do not on their own initiative review licensing b( 3rd orders granting or denying intervention. If those affected do not deem themselves sufficiently aggrieved to appeal, there is no reason for appeal boards to concern themselves. Washing-ton Public Power System (WPPSS Nuclear Project No. 2),
ALAB-571, 10 hRC 687, 688 (1979).
3.2 Scheduling Orders Matters of scheduling rest peculiarly within the Licensing Board's discretion; the Appeal Board is reluctant to review scheduling orders, particularly when asked to do so on an interlocutory basis. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-541, 9 NRC 436, 437-38 (1979).
Appeal Boards, absent extraordinary circumstances, will not consider scheduling controversies. Virginia Electric
& Power Co. (North Anna Power Station, Units 1 & 2), ALAS-584, 11 NRC 451, 467 (1980).
3.10 Partial Initial Decisions Even though the partial initial decision did not authorize the issuance of a construction permit, or pave the way for the issuance of a limited work authorization, it was none-theless subject to immediate appeal. Duke Power Company (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-597, 11 NRC 870, 871 (1980).
3.11 Other Licensing Actions Construction permit licensing board has no authority to con-dition a construction permit on the holding of an operating license hearing. Carolina Power A Light Co. (Shearon Harris Nuclear Power Plant Units 1, 2, 3 & 4), ALAB-581, 11 NRC 233, 234 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
Where Licensing Board imposes an incorrect remedy, an Appeal Board will search for a proper one. Shearon Harris, supra, at 234 5.
Briefs on Appeal 5.3 Contents of Brief 5.3(1)
General A pennitted reply to an answer should only reply to opposing briefs and not raise new matters.
Houston Lighting & Power Co. ( Allens Creek Nuclea-Generating Station Unit 1), ALAB-582,11 NRC 239, 243, n.4 (1980).
O 46
6 V.7.2(1) l Exceptions will be dismissed if sufficient infor-motion is not provided to dispose of the arguments intelligently and thus are " impossible of resolu-tion." Public Service Co. of Oklahoma (Black Fox Station Units 1 & 2), ALAB-573, 10.1RC 775, 786 (1979).
7.
Actions Similar to Appeal 7.1 Motions to Reconsider An Appeal Board may not reconsider a matter after it has lost jurisdiction. Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579,11 NRC 223, 225-26 (1980).
The practice followed by the Appeal Board, that it is unnecessary for a party to respond to a motion for recon-sideration unless specifically requested to do by the Board, is also applicable to requests for clarification of a prior decision. Houston Lighting and Power Co.
( Allens Creek Nuclear Generating Station Unit 1).
ALAB-544, 9 NRC 630, 631 (1979).
7.2 Interlocutory Reviews 7.2(1)
General Interlocutory appeals are generally not permitted as a matter of right under the Rules of Practice, 10 CFR 9 2.730(f). Appeal Board nay, as a matter of discretion, elect to entertain matters normally
)
subject to appellate review at the end of a case when (and if) an appeal is taken from the Licensing Board's final decision,10 CFR $$ 2.718(1) and 2.785(b)(1). Discretionary review is granted only sparingly and only when licensing board's action either (a) threatens the party adversely af fected with iranediate and serious irreparable ham that could not be remedied by a later case appeal or (b) affects the basic structure of the proceeding in a pervasive or unusual manner.
Pennsylvania Power & Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna 5 team Electric Station, Units 1 & 2), ALAB-593,11 NRC 761 (1980).
There might be warrant for treating in a 10 CFR
% 2.730 motion for interlocutory appeal filed by a lay person unfamiliar with the Rules of Practice alternatively as a petition seeking directed certification under 10 CFR 5 2.718(1).
Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susque-hanna Steam Electric Station, UnTts 1 & 2),
ALAB-563, 10 NRC 449 (1979).
The Appeal Board denied an intervenor's motion to strike applicant's appeal from the Licensing Board's order granting intervention, on the grounds that appeals from interlocutory board orders granting or denying intervention are governed by Section 2.7144 of the Commission's Rules of Practice. Houston Lighting and Power I
Co. (South Texas Project. Units 1 and 2),
ILAB-545, 9 NRC 634 (1979).
47
$ V.9 7.2(2)
Directed Certification The Commission's rules do not allow the Appeal Board to entertain interlocutory appeals,10 CFR 5 2.730(f). In extraordinary circumstances, how-ever, the Appeal Board can review interlocutory rulings by a petition for directed certification pursuant to 10 CFR % 2.718(1). Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-541, 9 NRC 436, 437 (1979).
There might be warrant for treating in a 10 CFR s 2.730 motion for interlocutory appeal filed by a lay person unfamiliar with the Rules of Practice alternatively as a petition seeking directed certification under 10 CFR $ 2.718(1).
Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susque-hanna Steam Electric Station, UnTts 1 & 2),
ALAB-563, 10 NRC 449 (1979).
Discretionary interlocutory review will be granted only sparingly, 2nd then only when a licensing board's action either (1) threatens the party adversely affected with imediate and serious irreparable ham which could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner.
Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980).
8.
Exception to Orders, Rulings, Initial Decisions Partial Initial Decisions 8.2 Time for Filing Exceptions 8.2(2)
Variation in Time Limits If unable to meet the deadline for filing a brief in support of its objection to a licensing board's decision, a party is duty-bound to seek an exten-sion of time sufficiently in advance of the dead-line to enable an appeal board to act seasonably l
upon the application. Virginia Electric and Power l
Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-568, 10 NRC 554, 555 (1979).
8.3 Briefs on Exceptions Briefs in support of exceptions must specify the precise portion of the record relied upon in support of the dssertion of error. 10 CFR 6 2.762(a); Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616,12 NRC 419, 424 (1980).
9.
Certification A certification to the Commission would go first to the Appeal Board under the specific delegation of 10 CFR 5 2.785(b)(1). Wisconsin Electric Power Company (Point Beach Nuclear Plant. Unit 1),
LBP-80-29, 12 NRC 581, 591 (1980).
The Commission's Rules of Practice contemplate that requests for relief (in matters such as discovery) be delegated to the Appeal Board, which functions as the Commission's delegate for these 48
$ V.10.2 matters. 10 CFR $ 2.785. Absent extraordinary circumstances F
warranting Commission involvement, request for interlocutory review of Licensing Board rulings and other relief should be directed to the Appeal Board rather than to the Commission. 10 CFR ll 2.730(f),
2.785.
Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), CLI-80-17,11 NRC 678 (1980).
(new) 9A. Reconsideration by the Commission The Commission's ability to reconsider is inherent in the ability to decide in the first instance. The Conmission has 60 days in which to reconsider an otherwise final decision, which is at the discre-tion of the Commission. Florida Power and Light Company (St. Lucie Nuclear Power Plant, Unit 2), CLI-80-41,12 NRC 650, 652 (1980).
- 10. Review of Appeal Board Decisions 10.1 General Dicta of the Commission reflects its views, and is entitled to the Board's respect. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3
~
and 4), ALAB-577, 11 NRC 18 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
The expression of tentative conclusions upon the start of a proceeding does not disqualify the Commission from again considering the issue on a fuller record. Nuclear Engineer-ing Company, Inc. (Sheffield, Illionis Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 4 (1980).
A party cannot complain that the Commission decided issues necessary for a determination of a question presented to it.
Sheffield, supra, at 4-5.
Question of late intervention of Indian tribes in Commis-sion proceeding deemed to present unique and important issues involving meaningful public participation and avoid-ance of administrative delay, which justify Commission interlocutory review. However, petitions for review are denied. Puget Sound Power & Light Co. (Skagit Nuclear Power Prnject, Units 1 & 2) (unreported decision, Janu-ary 16, 1980).
Commissan accepts interlocutory review of question of whether routing of shipments of fuel should be kept secret.
Duke Power Co. ( Amendment to Materials License SNM-1773, Transportation of Spent Fuel), CLI-80-3,11 NRC 185 (1980).
Commission accepts review of "important policy issue of first impression" of whether civil penalties under the AEA can be imposed on a licensee because of acts committed by licensee's employee absent a showing of management fualt.
Atlantic Research Corp., CLI-80-7,11 NRC 413 (1980).
10.2 Stays Pending Judicial Review The Appeal Board suspended sua sponte its consideration of an issue in order to awaIIthe possibility of Supreme Court review of a related issues, following the rendering of a decision by the First Circuit Court of Appeals, where certiorari had not yet been sought or ruled upon for such Supreme Court review. Public Service Co. of New Hampshire, et al. (Seabrook Station Units 1 and 2), ALAB-548, 9 NRC R07642(1979).
49
$ VI.I.2(5)
(new) 10.4 Disqualification of a Commissioner Determinations on the disqualification of a Commissioner reside exclusively in that Commissioner, and are not reviewable by the Commission. Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-e0-6, 11 NRC 411 (1980).
- 12. Procedure on Remand 12.1 Jurisdiction of the Licensing Board on Remand Where the Commission renands an issue to a Licensing Board it is implicit that the Board is delegated to pre-scribe warranted remedial action within the bounds of its general powers. However, it may not exceed these powers.
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant. Uni ts 1, 2, 3 and 4), ALAB-577,11 NRC 18, 29 (1980), modified, CLI-80-12, 11 NRC 514 (1980).
Jurisdiction may be regained by a remand order of either the Commission or a court, issued during the course of its own review of the appeal board decision. Issues to be considered by the Board on remand would be shaped by that nrder. If the remand related to only one or more specific issues, the finality doctrine would foreclose a broadening of its scope to embrace discrete matters. Virginia Electric and Power Co. (North Anna Nuclear Power Statior,,
Units 1 and 2), ALAB-551, 9 NRC 704, 708 (1979).
The Licensing Board was " manifestly correct" in rejecting a petition requesting intervention in a remanded proceed-ing where the scope of the remanded proceeding had been limited by the Commission and the petition for interven-tion dealt with matters outside that scope. A Licensing Board had limited jurisdiction in the proceeding and could consider only what had been remanded to it.
Carolina Power and Light Company (Shearon Harris Nuclear Power Plant Units 1-4), ALAB-526, 9 NRC 122, 124 n.3 (1979).
VI.
GENERAL MATTERS 1.
Amendments to Existing Licenses and/or Construction Permits 1.2 Hearing Requirements 1.2(3)
Intervention Persons who would have standing to intervene in new construction permit hearings, which would be required if good cause could not be shown for the extension, have standing to intervene in construction extension proceedings to show that no good cause existed for extension and, conse-quently, new construction permit hearings would be required to complete construction. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), LBP-80-22,12 NRC 191,195 (1980).
1.2(5)
Matters Considered in Hearings on License Anendments In an extension proceeding the Board must consider issues related to health, safety and environment which arise fro.n the reasons given for extension 50
9 VI.2.1 l
which cannot abide until the operating license hearing, even if the issues are not related to the prolonged period of construction. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), LBP-80-22,12 NRC 191,198 (1980).
The mere request for an extension is no reason to accelerate a consideration of issues that the rules provide for considering no earlier than the operating license stage. Bailly, supra, at 199.
Even when it is determined that issues advanced in construction extension proceeding would have been heard at construction pemit hearing, those issues will be heard in extension proceeding only if there is not " reasonable assurance" that all safety matters will be satisfactorily resolved by the new completion date. Bailly, supra, at 200.
Issues that do not arise fron the reasons for the delay in construction or are otherwise unrelated to the prolonged period could be con-sidered, in an extension proceeding, if they are necessary to protect the public interest and cannot abide the operating license proceed-ing. Any jurisdiction the Board exercises under the above interpretation would be strictly limited to situations in which the petitioner had made a convincing prima facie showing that the safety matter alleged will not be satis-factorily resolved by the new completion date.
Bailly, supra, at 204-206.
(new) 1A. Amendments to License / Permit Applications Three years after the Licensing Board sanctioned a limited work authorization (LWA) and before the applicant had proceeded with any construction activit,, applicant indicated it wanted to amend its construction permit application to focus only on site suita-bility issues. The Appeal Board " vacate [d] without prejudice" the decisions of the Licensing Board sanctioning the LWA, and renanded the case for proceedings deemed appropriate by the Licensing Board upon formal receipt of an early site approval application.
Delmarva Power & Light Company (Sumit Power Station Units 1 and 2), ALAB-516, 9 NRC 5 (1979).
2.
Antitrust Considerations 2.1 General l
only the NRC is empowered to make the initial detemina-tion under section 105(c) whether activities under the license would create or maintain a situation inconsistent with the antitrust laws, and if so what license conditions should be required as a remedy. Houston Lighting and Power Company, et al. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 574 (1979).
In order to conduct a section 105(c) proceeding, it is not necessary to establish a violation of the antitrust laws. Any violation of the antitrust laws also meets the less rigorous standard of section 105(c) which is inconsistency with the antitrust laws. South Texas, supra, at 570.
51 i
i VI.2.2 NRC statutory responsibilities under section 105(c) cannot be impaired or limited by a state agency. South Texas, supra, at 577.
The legislative history and language of the Public Utili-ties Regulatory Policies Act of 1978 clearly establish that the act was not intended to divest NRC of its anti-trust jurisdiction. South Texas, supra, at 577.
When the Attorney General advises that there may be adverse antitrust aspects and reCotamends that there be a hearing, he must be allowed to participate in those hearings. M Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station, Units 1, 2 and7)7nd The Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant.
Units 1 and 2), ALAB-ST6,70 NRC 265, 272 (1979).
A directive to consider the "public interest" does not mean that the antitrust laws can be ignored or relaxed in favor of some broad interpretation of the "public interest".
Davis-Besse and Perry, supra.
2.2 Consideration of Antitrust Matters After the Construction Permit Stage A narrower, second antitrust review is to occur at the operating license stage, if and only if, "The Commission detennines such review is advisable on the ground that significant changes in the licensee's activities or pro-posed activities :7xa occurred subsequent to the previous review by the Attoraey General and the Commission..." in connection with the construction permit for the facility.
South Carolina Electric and Gas Company, et al. (Virgil C. Summer Nuclear Station, Unit 1), CLI-8F2E 11 NRC 817, 823 (1980).
The ultimate issue in the operating license stage antitrust review is the same as for the construction pennit review:
would the contemplated license create a situation incon-sistent with the antitrust laws or the policies underlying those laws. South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 11 NRC 817, 824 (1980).
To trigger antitrust review at the operating license stage, the significant changes specified by Section 105(c) of the Atomic Energy Act must (1) have occurred since the previous antitrust review of the licensee; (2) be reason-dbly attributable to the licensee; and (3) have antitrust implications that would warrant Commission remedy. This requires an examination of (1) whether an antitrust review would be likely to conclude that the situation as changed has negative antitrust implications and (2) whether the Commission has available remedies. Sumner, supra, at 824-825.
Although the NRC regulations do not specify a period during which requests for a significant change determination will be timely, the relevant question in detennining timeliness is whether the request has followed sufficiently promptly the operating license application. Sumner, supra, at 829.
O 1
52
5 V1.2.4(2) i 2.4 Discovery in Antitrust Proceedings 2.4(1)
General The Noers Pennington doctrine will operate to inununize those legitimately petitioning the government, or exercising other First Amendment rights, from liability under the antitrust laws, even w5ere the challenged activities were con-ducted for purposes condemned by the antitrust laws. Florida Power & Light Company (St. Lucie Plant Unit No. 2), LBP-79-4, 9 NRC 164, 174 (1979).
Material on Applicant's activities designed to influence legislation and requested through discovery is relevant and may reasonably be calculated to lead to the discovery of admis-sible evidence, and therefore is not immune fran discovery. The Noers-Pennington cases, which applicant had based its argument, go to the substantive protection of the First Amend-ment and do not immunize litigants from dis-covery. Appropriate discovery into Applicant's legislative activities had to be permitted, and the information sought to be discovered may well be directly admissible as evidence.
St. Lucie, supra, at 175.
2.4(2)
Discovery Cutoff Dates The imposition of a cutoff date for discovery is for the purpose of making a preliminary ruling about relevancy for discovery. The cutoff date is only a date after which, in the dimension of time, relevancy may be assumed for discovery pur-poses. Requests for information from before the cutoff date must show that the information requested is relevant in time to the situation to be created or maintained by a licensed acti-vity. If the information sought is relevant, and not otherwise barred, it may be discovered, no matter how old, upon a reasonable showing. This is entirely consistent with 10 CFR 5 2.740(b) and Rule 26(b) which are in turn consistent with the Manual for Complex Litigation, Part 1, 9 4.30.
Florida Power & Light Company (St. Lucie Plant, Unit No. 2), LBP-79-4, 9 NRC 164,169-70.
In antitrust proceedings, the relevant period for discovery must be determined by the circumstances of the alleged situation inconsistent with the antitrust laws, not the planning of the nuclear facility.
St. Lucie, supra, 168.
Parties relying upon evidence, either defensively l
or in their respective cases in chief, which i
predated the cutoff date for discovery set by the Licensing Board, must be prepared to allow the other parties to follow the evidentiary trial.
St. Lucie, supra, at 170.
A ten year time limit for discovery was estab-lished, since ten years appears to have been successfully employed as a geral time period limitation on discovery in other antitrust
[
litigations.
St. Lucie, supra, at 171.
53
5 VI.5.2 The standard for allowing discovery requests pre-dating a set cutoff date is that there be a reasonable possibility of relevancy; it is not i
necessary to show relevancy plus good cause.
St. Lucie, supra, at 172.
3.
Attorney Conduct 3.1 Practice Before Licensing and Appeal Boards 3.l(2)
Professional Decorum The Code of Professional Responsibil.ity con-siderably restricts the comments that counsel representing a party in an administrative hearing may make to the public. Pacific Gas and Electric M. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592, 11 NRC 744, 750 (1980).
(new) 3.2 Disciplinary Matters (fomerly Suspension of Attorneys)
The Comptroller General concludes there is no basis on which the NRC can reimburse a private attorney for out-of-pocket expenses in connection with the tennination and settlement of a special proceeding brought to investigate misconduct charges against a private attorney and NRC Staf f attorneys. Consumers Power Cnmpany (Midland Plant, Units 1 and 2), CLI-79-3, 9 NRC 107, 109 (1979).
5.
Early Site Review Procedures 5.1 General Early site review regulations provide for a detailed review of site suitability matters by the Staf f, an adjudicatory hearing directed toward the site suitability issues proposed by the Applicant, and the issuance by a Licensing Board of an early partial decision on site suitability issues. A partial decision on site suitabil-ity is not a suf ficient basis for the issuance of a con-struction permit or for a limited work authorization.
Helther nf these steps can be taken without further action, which includes the full review required by Section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA), and by 10 CFR Part 51, which implements NEPA. Philadelphia Electric Company (Fulton Generating Station, Units 1 and 2), LbP-79-23,10 NRC 220, 223 (1979).
The early partial decision on site suitability does not authorize or license the Applicant to do anything; it does provide Applicant with information of value to Applicant in its decision to either abandon the site or proceed with plans for the design, construction, and operation of a specific nuclear power plant at that site.
Implementation of any such plans is dependent upon further review by the Staff and approval by a licensing board. Fulton, supra.
5.2 Scope of Review The early site review is not a " major federal action significantly af fecting the human environment" Such as would require a full NEPA review of the entire proposed project. Comonwealth Edison Company (Carrol County Site), ALAB-601, 12 NRC 18, 25 (1980).
54
5 VI.8A.1
}
The scope of the early site review is properly limited to the issues specified in the notice of hearing subject to the limits of NEPA, Section 102(2)(c), 42 USC 4332(2)(c).
Carrol County Site, supra, at 26.
8.
Generic Issues 8.2 Consideration of Generic Issues In Licensing Proceedings In an operating license proceeding, where a hearing is to be held to consider other issues, licensing boards are enjoined, in the absence of issues raised by a party, to determine whether the Staff's resolution of varicus generic safety issues applicable to the rt. actor in question is
"'at least plausible and... if proven to be of substance
... adequate to justify operation.'" Pennsylvania Power 4 Light Com an, et al. (Susquehanna Steam Electric Station, Units 1 and
, LW-79-6, 9 NRC 291, 311 (1979).
As a matter of policy, most evidentiary hearings in NRC proceedings are conducted in the general vicinity of the site of the facility involved, in generic matters, how-ever, when the hearing encompasses four distinct, geo-graphically separated facilities and no relationship exists between the highly technical questions to be heard and the particular features of those facilities or their sites, the governing consideration in determining the place of hearing should be the convenience of the parti-pants in the hearing. Philadelphia Electric Co., et al.
(Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-566, 10 NRC 527, 530-31 (1979).
8.3 Unresolved Generic !ssues, Ef fect of 8.3(2)
On Operating License Proceedings The Licensing Board has stayed its Initial Deci-sion and retained jurisdiction authorizing the issuance of an operating license until further order of the Board following the issuance of a supplement to the Staff's Safety Evaluation Report addressing the significance of any unre-solved generic safety issues. Duke Power Co.
(William M. McGuire Nuclear Station, Units 1 and 2), LRP-79-13, 9 NRC 489, 546-48 (1979).
8A.
Inspection and Enforcement 8A.1 General Inspections of licensed 3ctivities during company-scheduled working hours are reasonable Ler H.
Commission inspec-tions may not be limited to "of fice hours." In re
!_nc,, ALAB-567,10 NRC 533, 540 Radiation Technology, n
(1979).
A search warrant is not needed for inspections of licensed activities.
Id. at 538-40.
There is no need for warrants for NRC investigation.
The Appeal Board's decision turned on the facts of the situation; the Staff's investigation was restricted in scope and designed to elicit evidence of potential safety problems. Union Electric Co. (Callaway Plant.
D Units 1 and 2), ALAB-527, 9 hRC 126,140-42 (1979) 55
6 VI.8A.2(2) 8A.2 Enforcement Actions 8A.2(1)
General The Director of Inspection and Enforcenent, subject to requirements that he give licensees written notice of specific violations and consider their responses in deciding whether penalties are warranted may prefer charges, may demand the payment of penalties, and agree to compromise penalty cases without formal litiga-tion. Additionally, the Director may consult with his staff privately about the course to be taken. In re Radiation Technology, -Inc.,
ALAB-567, 10 hRC 533, 537 (1979).
The ability of the Director of Inspection and Enforcenent to proceed against a licensee by issuing an order imposing civil penalties is not a denial of due process because the licensee was not able to Cross-examine the Director to determine he had not been improperly influenced by Staff. The demands of due process do not require a hearing at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective. in re Radiation Technology, In,c,,, ALAC-567, 10 NRC 533, 536-38 (1979).
8A.2(2)
Civil Penalties When a hearing is requested to challenge the imposition of civil penalties, the officer pre-siding at the hearing, not the Director of Inspection and Enforcement, decides on the basis of the record whether the charges are sustained and whether civil penalties are warranted. In re Radiation Technology, hc...
c ALAB-567,10 NRC 533, 536 (1979).
Civil penalties are not invalidated by the absence of a formally pr-sigated schedule of fees when the penal ties '- ased are within statutory limits and in accord. 6h general criteria published by the Commission.
Id_. a t 541.
A civil penalty imposed by the Director of the Office of Inspection and Enforcenent ar.d upheld by the Administrative Law Judge, was set aside where the penalty properly should have been mitigated in the absence of an assertion of (1) management malfeasance, misfeasance or non-fe6sance or (2) a failure by the licensee to take prompt and corrective action to obviate a recurrence. In re Atlantic Research Corp.,
ALAB-542, 9 NRC 611, 618-621 (1979).
The propriety of a civil penalty hinges upon whether it serves a discernible renedial pur-pose, i.e., whether it might have the ef fect of deterring future violations of regulatory requirements by the licensee in question or other licensees (or their enployees). Civil penalties are outside the bounds of the authori-2ation of Section 234 of the Atomic Energy Act I
56
6 VI.12.1 if their purpose or ef fect is solely punitive.
.I.d.
An adjudicatory hearing in a civil penalty pro-ceeding is essentially a trial de novo. The penalty assessed by the I&E Director constitutes the upper bound of the penalty which may be imposed af ter the hearing but the Administrative Law Judge may substitute his own judgment for that of the Director. 10 CFR 65 2.205(d),(e),
and (f). In re Atlantic Research Corporation, ALAB-594, 11 NRC 841, 849 (1980).
10A. Material Licenses A 10 CFR Part 70 materials license is an " order" which under 10 CFR 6 2.717(b) may be " modified" by a licensing board delegated authority to consider a 10 CFR Part 50 operating license. Cincinnati Gas and Electric Company (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228 (1979),
- 11. Motions in NRC Proceedings 11.1 General Although the Rules of Practice do not explicitly provide for the filing of either objections to contentions or motions to dismiss them, each presiding board must fashion a fair procedure for dealing with such objections to peti-tions as are filed. The cardinal r ale of fairness is that each side must be heard. Houston Liahting & Power Co.
( Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979).
Prior to entertaining any suggestion that a contention not be admitted, the proponent of the contention must be given some chance to be heard in response. 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 dis-missing them. Contentions and challenges to contentions in NRC licensing proceedings are analogous to complaints and motions to dismiss in Federal court. Allens Creek, supra, at 525.
11.4 Licensing Board Actions on Motions Although the Rules of Practice do not explicitly provide for the filing of either objections to contentions or motions to dismiss them, each presiding board must fashion a fair procedure for dealing with such objections to peti-tions as are filed. The cardinal rule of fairness is that each side must be heard. Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1),
FLAB-565, 10 NRC 521, 524 (1979).
- 12. NEPA Considerations 12.1 General In contrast to safety questions, the environmental review at the operating license stage need not duplicate the construction-pemit review, 10 CFR 6 51.21.
To raise an issue in an operating license hearing concerning environ-mental matters which were considered at the construction-permit stage, there needs to be a showing either that the 57 l
% VI.12.2(1)a issue had not previously been adequately considered or that significant new information has developed after the construction pennit review. Houston Lighting and Power Co_.
(South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 465 (1979).
Only the Commission may decide whether Class 9 accidents shall be considered in individual licensing proceedings.
Public Service Co. of Oklahoma, et al. (Black Fox Station, Units 1 and 2), CLI-80-8,11 NRC 433 (March 21,1980);
Public Service Co. of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-587, 11 NRC I7F (1980); Florida Power
~
F. Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2),
ALAB-579, 11 NRC 223 (1980).
The grant of a license amendment to increase the storage capacity of a spent fuel pool is not a major Commisson action signif1Cdntly af fecting the quality of the human environment, and therefore, no El$ is required. Public Service Electric and Gas Company, et al. (Salem Nuclear Generating Station, Unit 1), LbP-8527 12 NRC 435, 456 (1980); Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 264-68T1T79).
The Appeal Board, under 10 CFR SI.52(b)(3), deemed that the Staff's original environmental statement was modi-fled by later decisions of the Licensing Board and the Appeal Board. Public Service Electric and Gas Company, et al. (Hope Creek Generatin Station, Units 1 and 2),
TL'AE518, 9 NC 14, 39 (1979.
12.2 Environmental Statements 12.2(1)
General The Appeal Board, under 10 CFR S 51.52(b)(3),
deemed the Staf f's original environmental statement 'iodified by later decisions of the Licensing Boed and of the Appeal Board.
Public Service Electric nd Gas Company, et al.
(Hope Creek Generating Station, Units 1 aid U, ALAB-528, 9 NRC 14, 39 (1979).
(new) 12.2(1)a Whether to Prepare an EIS Although the determination, whether to issue an environmental impact statemeat, falls initially upon the Staff, that detemination may be made an issue in an adjudicatory proceeding. Consumers Power Company (PalistJ ?s Nuclear Plant), LBP 20, 10 NRC 108, 120 (1979).
In the final analysis, the significance of the impact of the project - in large part an evi-dentiary matter - will detemine whether a statement must be issued. Palisades, supra.
The test of whether benefits of action outweigh its burdens, is distinct from the primary ques-tion of whether an environmental impact statenent is needed because the action is a major Federal action significantly af fecting the environment.
Environmental review focuses on occupational exposure where that is the only significant impact. Virginia Electric Power Co. (Surry 58
5 VI.12.2(1)b l
Nuclear Power Station, Units 1 & 2), CLI-80-4, 11 NRC 405 (1980).
The fact that risks of other actions or no action are greater than that of proposed action does not show that risks of the proposed action are not significant so as to require an EIS. Where conflict in scientific community makes detemi-nation of significance of environmental impact problematical, the preferable course is to prepare an environmental impact statement.
Virginia Electric Power Co. (Surry Nuclear Power Station, Units 1 & 2), CLI-80-4, 11 NRC 405 (1980).
For an analysis of when an EIA rather than an EIS is appropriate, see Commonwealth Edison Company (Zion Station, UWits 1 & 2), LBP-80-7, 11 NRC 245, 249-250 (1980).
When a licensee seeks to withdraw an application
+, expand its existing low-level waste burial site, the granting of the request to withdraw does not amount to a major Federal action requiring a NEPA review. This is true even though, absent an expansion, the site will not have the capacity to accept additional low level waste. Nuclear Engineering Co. Inc. (Sheffield, Illinois. Low-Level Radioactive IIaste Dis osal Site), ALAB-606, 12 NRC 156, 161-63 (1980.
10 CFR $$ 51.5(b) and (c)(2) authorize the ssuance D
of a negative aeclaration and an environmental impact appraisal in circumstances where the Staff has detemined that the proposed licensing action would not have a significant effect upon the quality of the human environment. Portland General Electric Company, et al. (Tro an Nuclear Plant), ALAB-531, 9 NRC 26T N5 n.2 1979).
The Appeal Board affirmed a Licensing Board deci-sion applying this to a spent fuel pool expansion case; the Licensing Board has examined impacts associated with the expansion, had found those impacts to be local in character and insignifi-cant in extent, and had concluded that an envi-rorynental impact statement was unnecessary.
Trojan, supra, at 264-65.
The Comr..ission has consistently taken the posi-tion that individual fuel exports are not
" major Federal actions". Westinghouse Electric Corp. (Exports to Phillipines), CLI-80-15, 11 NRC 672 (1980).
12.2(1)b Scope of Environmental Statement The scope of the environmental statement or appraisai must be at least as broad as the scope of the action being taken. Duke Power Company, (Amendment to Oconee SNM License and Spent Fuel Transportation at McGuire Nuclear Station), LBP-80-28, 12 NRC 459, 473 (1980).
Where the Staff issueo a Final Generic Impact Statement for Handling and Storage of Spent Fuel 59
6 VI.12.2(2)
Ol but where the Commission had not yet acted on it, the EIS for a license application must consider the five factors specified in the Commission's notice of intent to be considered in the GEIS.
I d... 12 NRC at 476-9 (1980).
An Environmental Impact Appraisal of a spent fuel shipment proposal must adequately consider, inter alia, the potential social consequences of transshipment, including psychological, sociolo-gical and political impacts.
!d., 12 NRC at 490 (1980).
In Vennont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 551 (1978) the U.S. Supreme Court embraced the doc-torine that environnental impact statements r.eed not discuss the enviramiental effects of alterna-tives which are " deemed o.'y remote and specula-tive possibilities." The ame has been held with respect to remote and speculative environmental impacts of the proposed project itself. Public Service Electric Company, Atlantic City Electric Company (Hope Creek Generating Station, Units 1 and 2), ALAB-518, 9 hRC 14, 38 (1979).
When major federal actions a e involted, if related activities taken abroad have a signifi-Cant effect with the U.S., those effects are within NEPA's ambit. However, remote and specu-lative possibilities need not be considered under NEPA. Philadelphia Electric Co., et al.
(Peach Bottom Atomic Power Station UnitT2 and
- 3) et al., ALAB-562,10 NRC 437, 446 (1979).
i for a recent case discussing the " rule of reason" as applied to the NEPA environmental review, see, Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 779 (1979).
The Staf f's environmental statement pertaining to a manufacturing license application "... shall be directed at the manufacture of the reactor (s) at the manufacturing site; and, in general terms, at the construction and operation of the reactor (s) l at an hypothetical site or sites having character-istics that fall within the postulated site pard-l meters." 10 CFR Part 50, Appendix M.
This relieves the Staff of any responsibility in the manufacturing license application proceeding for locating or evaluating any specific sites for a floating nuclear power plant. Rather, such issues are a'Jdressed in proceedings to place these floating plants at particular locations.
Of fshore Power Systems (Floating Nuclear Power Plants), ALAB-517, 9 NRC 8, 9-10 (1979).
(Comment - Appeal Board did not itself rule on the above issue. The Licensing Board inter-pretation of 10 CFR Part 50, Appendix M is reported here because it originally appeared in an unpublished order.)
12.2(2)
Role of Environmental Statements The impact statement does not simply " accompany" an agency recommendation for action in the sense l
l 60
6 VI.12.2(4) l of having some independent significance in isola-tion from the deliberative process. Rather, the impact statement is an integral part of the Commission's decision. it forms as much a vital part of the NRC's decisional record as anything else, such that for reactor licensing, for example, the agency's decision would be funda-mentally flawed without it.
Public Service Company of Oklahoma (Black Fox Station, Units 1 and2),CLI-80-31,12NRC264,275(1980).
Where an applicant has submitted a specific pro-posal, the statutory language of NEPA's Section 102(2)(C) only requires that an environmental impact statement be prepared in conjunction with that specific proposal, providing the Staff with a " specific action of known dimensions" to evalu-
'te.
A single approval of a plan does not commit the agency to subsequent approvals; should contemplated actions later reach the stage of actual proposals, the environmental effects of the existing project can be considered when preparing the comprehensive statement on the cumulative impact of the proposals.
Offshore Power Systems (Floating Nuclear Power Plants). LBP-79-15, 9 NRC 653, 658-60 (1979).
12.2(3)
Circumstances Requiring Redrafting of FES 12.2(3)a General For a recent case discussing recircu-lation of FES, Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 786 (1979).
12.2(4)
Alternatives (formerly Alternate Sites)
Under NEPA, there is no need for Boards to con-sider economically better alternatives, which are not shown to also be environmentally preferable.
No study of alternatives is needed under NEPA unless the action significantly affects the envi-ronment (6102(2)(c)) or involves an unresolved conflict in the use of resources (6102(2)(e)).
Where an action will have little environmental effect, an alternative could not be materially advantageous. Virginia Electric & Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 456-58 (1980).
NEPA does not require the NRC to choose the envi-ronmentally preferred site. NEPA is primarly procedural, requring the NRC to take a hard look at environmental Consequences and alternatives.
Rochester Gas & Electric Corp., et al. (Sterling Power Project, Nuclear Unit No. 'II.TLI-80-23, 11 NRC 731, 736 (1980).
The application of the Conmission's "obviously superior" standard does not affect the Staff's obligation to take the hard look. The NRC's "obviously superior" standard is a reasonable exercise of discretion to insist on a high degree of assurance that the extreme action of denying an application is appropriate in view 61
9 UI.12.2(6)b of inherent uncertainties in benefit-cost analysis. Sterling, supra, at 735.
Whether or not the parties to a particular licensing proceeding may agree that none of the alternatives (in Seabrook, alternative sites) to the proposal under consideration is preferable, based on a NEPA cost / benefit balance, it remains the Commissions's obligation to satisfy itself, that that is 50 Public Service Company of New Hampshire, et al. (Seabrook Station Units 1 and 2), ALAT5U,10 NRC 153,155 (1979).
Citinry its power to make " policy", a power the Appeal Board does not hcve, the Commission held, as a matter of policy, that " Class 9" accidents were appropriate for consideration in the FES on offshore nuclear power plants. Offshore Power Systems (Floating Nuclear Power Plants),
CLI-79-9, 10 NRC 257 (1979). (NOTE: The Com-mission has subsequently withdrawn the " proposed annex" and stated thit, under its new policy, all accidents should be considered with appro-priate weight being given to each. Statement of Interim Policy, 45 Fed. Peg. 40101 (June 12, 1980).)
The Appeal Board approved a Licensing Board's decision not to consider alternatives to pool Capacity expansion in a proposed expansion proceeding. The Licensing Board had found that the environmental ef fects of t..e proposed action were negligible. Portland General Electric Company, et al. (Trojan Nucle
'lant),ALAB-S31, 9 NRC2 U, 266 (1979).
The NEPA mandate that alternatives to the pro-posed licensing action be explored and evaluated does not come into play where the proposed action will neither 1) entail more than negligible environ-mental impacts, nor 2) involve the commitment of available resources respecting which there are unresolved conflicts. Trojan, supra, at 265-66.
12.2(5)
Need for Facility 12.2(5)a General The general rule applicable to cases involving differences or changes in demand forecasts is not whether the utility will need additional generat-ing capacity but when. Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 691 (1980).
12.2(6)
Cost-Benefit Analysis 12.2(6)b Consideration of Specific Costs When water quality decisions have been made by the EPA pursuant to the Federal Water Pollution Control Act Amendments of 1972 and these decisions are raised in NRC licensing proceedings, the NRC is bound to take EPA's considered decisions at 62
5 VI.12.4 l
face value and simply to factor theu into the NEPA cost-benefit analysis. Carolina Power %
Light Co. (H.B. Robinson, Unit No. 2), ALAB-569, 10 NRC 657, 561-62 (1979).
The envirorynental and economic costs of decom-nissioning necessarily comprise a portion of the cost-benefit analysis which the Consnission must make. Pennsylvania Power & Light Company, et al. (Susquehanna Steam Electric $tacion, Wits 1 and 2), LBP-79-6, 9 NRC 291, 313 (1979).
Alternative methods of deconsnissioning do not have to be discussed. All that need be shown is that the estimated costs do not tip the balance against the plant and that there is reasonable assurance that an applicant can pay for them.
Susquehanna, supra, at 314.
12.3 Power of NRC Under NEPA 12.3(1)
General A licensing board nay rule on the adequacy of the FES once it is introduced into evidence and may modify it if necessary. A licensing board's authority to issue directions to the NRC Staff regarding the perfomance of its independent responsibilities to prepare a draft environmen-tal statement is limited. Pennsylvania Power and Light Company, et al. (Susquehanna 5 team Electric Station, UnTtT1 and 2), LBP-80-18, D
11 NRC 906, 909 (1980).
Neither NEPA nor the Atomic Energy Act applies to activities occuring in foreign counties and subject to their sovereign con trol. Philadelphia Electric Cn., et al. (Peach Bottom Atomic Power Station Units 7 and 3), ALAB-562,10 NRC 437, 445-46 (1979).
12.3(5)
With Regard to FWPCA Section Sil(c)(2) of the FWPCA requires that the Commission and the Appeal Board accept EPA's deteminations on effluent limitations.
Philadelphia Electric Company, et al. (Peach Fottom Atomic Power Station, UnTt 3T, ALAB-532, 9 NRC 279, 282 (1979).
When water quality decisions have been made by the EPA pursuant to the federal Water Pollution Control Act Amendments of 1972 and these decisions are raised in NRC licensing proceedings, the NRC is bound to take EPA's considered decisions at face value and simply to factor then into the NEPA cost-benefit analysis. Carolina Power &
Light Co. (H.B. Robinson, Unit No. 2), ALAB-569, 10 NRC 557, 561-62 (1979).
12.4 Spent Fuel Pool Proceeding A Licensing Board was not required to consider in a spent D
fuel pool expansion case the environmental effects of all other spent fuel pool capacity expansions. Because pending or past licensing actions affecting the capacity of other 63
l VI.13.l(1) spent fuel pools could neither enlarge the magnitude nor alter the nature of the environmental effects directly attributable to the expansion in question, there was no occasion to take into account any such pending or past aClions in detemining the expansion application at bar.
Portland General Electric Company (Trojan Nuclear Plant),
ALAB-531, 9 NRC 263, 267-66 (1979).
The attempt in a licensing proceeding of an individual pool capacity expansion, to challenge the absence of an acceptable generic long-tem resolution of the waste management question was precluded in Prairie Island, ALAB-455, 7 NRC 41, restating the Cocynission's policy that for the purposes of licensing actions, the avail-ability of offsite spent fuel repositories in the relatively near tern should be presumed. Trojan, supra.
The Licensing Board need not consider alternatives to pool capacity expansion in a proposed expansion proceeding, since the environmental effects of the proposed action were negligible. The NEPA mandate that alternatives to the proposed licensing action be explored and evaluated, does not come into play where the proposed action will neither 1) entail more than negligible environmental impacts nor 2) involve the commitment of available re-sources respecting which there are unresolved conflicts.
Trojan, supra, at 256-66.
- 13. NRC Staff 13.1 Role in Licensing Proceedings 13.1(1)
General The Staff plays a key role in assessing an appli-cant's qualifications. Carolina Power & Light Co.
(Shearon Harris Nuclear I)ower Plant. Units 1, 2, 3 and 4) ALAB-577,11 NRC 18, 34 (1980),
modified. CLI-80-12, 11 NRC 514 (1980).
It is on the Staff to decide its priorities in the review of applications. Shearon Harris, supra.
The 5taff is assumed to be fair and capable of judging a matter on its merits. Nuclear Engineering Co.
Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site).
CLI-80-1, 11 NRC 1, 4 (1980).
An early appraisal of an applicant's capability i
does not foreclose the Staff from later aitering l
Its conclusions. Such an early appraisal would aid the public and the Commission in seeing whether a hearing is warranted. Carolina Power
& Light Co. (Shearon Harris Nuclear Power Plant.
Ur.its 1, 2, 3 and 4), ALAB-577, 11 NRC 18, 33-34 (1980), reconsidered. ALAB-581, 11 NRC 233 (1980), modified CLI-80-12, 11 NRC 514 (1980).
The Staff will make a technical judgment regard-ing continued operation where environmental qualification is poor or where other questions arise. In re Petition for Emergency and Reme-dial Action, CLI-80-21, 11 hRC 707, 115 (1980).
64
5 VI.18.2
\\
}
(new) 13.5 Status of Standard Review Plan Where the applicant used criteria required by the Staff's Standard Review Plan (NUREG-75/087, l 2.2.3) in determi-ning tho probability of occurrence of a postulated acci-dent, it is not legitimate for the Staff to base its l
position on a denigration of the process which the Staff itself had promulgated. Public Service Electric and Gas Company, Atlantic City Electric Company (Hope Creek Generating Station, Units 1 and 2), ALAB-F18, 9 NRC 14, 29 (1979)
- 15. Regulations 15.1 General Fundamental to NRC regulation of nuclear power reac* ors is the principle that safety systems must perfom their intended functions in spite of the environment that may result from postulated accidents. Confimation that these systems will remain functional under postulated j
accident conditions t.onstitutes environmental qualifica-tion. Current legal requirements are found in GDC 1 and 4 of Appendix A, Part 50, Criterion !!! of Appendix b, Part 50 and 10 CFR 50.55a(h) (to plants receiving CP af ter 1-1-71) Regulatory Guide 1.89, which applies to plants whose SERs were issued af ter 7-1-74, has generally adopted IEEE Standard 323-1974. More definitive criteria oave been developed by the Staff. The 1974 standard in NUREG-0588 will apply to replacement parts in operating plants. In re Fatition for Emergency and Remedial Action, CLI-80-21, 11 NRC 707, 710 (1980).
D
- 18. Staff Disclosure of Infomation to the Public 18.2 Freedom of Information Act Under FOIA, a Commission decision to withhold a document from the public must be by majority vote. Public Service Company of Oklahoma, et al. (81ack Fox Station, Units 1 and 2), CLI-80-35, 12' RRF 409, 412 (1980).
While FCIA does not establish new government privileges against disCcVery, the Commission has elected to incor-porate the exemptions of the F0IA into its own discovery rules. Consumers Power Company (Palisades Nuclear Power Facility), ALJ-80-1,12 hRC 117,121 (1980).
Section 2.790 of the rules of practice is the NRC's promul-gation in obedience to the Freedon of Infomation Act.
Palisades, supra, at 120.
The Commission, in adopting the standards of Exemption 5, and the "necessary to a proper da;ision" as its document privilege standard under 10 CFR $ 2.744(d), has adopted traditional work product / executive privilege exemptions from disclosure. Palisades, supra, at 123.
The government is no less entitled to normal privilege than is any other party in civil litigation. Palisades, supra, at 127.
Any documents in final fann memorializing the Director's decision not to issue a notice of violations imposing civil penalties does not fall within Exemption 5.
Palisades, supra, at 129.
65
$ VI.19.1 18.4 Proprietary Infonnation 18.4(3)
Security Plan Infonnation Under 10 CFR 2.790(d)
In making physical security plan infonnation available to intervenors, llCensing boards are to follow certain guidelines. Security plans are sensitive and are subject to discovery in Commis-sion adjudicatory proceedings only under certain conditions: (1) the party seeking discovery must demonstrate that the plan or a portion of it is relevant to its contentions; (2) the release of the plan must (in most circumstances) be subject to a protective order; and (3) no witness may review the plan (or any portion of it) without it first being demonstrated that he possesses the technical competence to evaluate it.
Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL!-80-24,11 NRC 775, 777 (1980).
Release of a security plan to qualified inter-venors must be under a protective order and the individuals who review the security plan itself should execute an affidavit of non-disclosure.
Diablo Canyon, supra, at 778.
Protective orders may not constitutionally pre-clude public dissemination of infonnation which is obtained outside the hearing process. A person subject to a protective order, however, is prohibited from using protected information gained through the heariag process to corrobo-rate the accuracy or inaccuracy of outside infonna tion. Diablo Canyon supra, at 778.
- 19. Show Cause Proceedirigs 19.1 General The agency alone has power to develop enforcement policy and allocate resources in a way that it believes is best Calculated to reach statutory ends. NRC can develop policy that has licensees consent to rather than contest, enforcement proceedings. A Director may set forth and limit the questions to be considered in a show cause pro-ceeding. Public Ser rice Company of Indiana (Marble Hill Nuclear Generating Station. Units 1 & 2), CLI-80-10, 11 NRC 438, 441 (1980).
The Commission has broad discretion to allow intervention where it is not a matter of right. Such intervention will not be granted where conditions have already been imposed on a licensee, and no useful purpose will be served by that intervention. Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
CLI-80-10, 11 NRC 438, 442-43 (1980).
In the context of proceedings before the Commission, an order to show cause is a remedial step in dealing with fa lure to meet required standards of conduct. The i
Licensing Board denied a petition for a show cause order which did not make allegations of any such failure.
Philadelphia Electric Company (Fulton Generating Station, Units 1 and 2), LBP-79-23,10 NRC 220, 223 (1979).
66
l VI.19.2(1)
}
The Licensing Board ruled that in dealing with pleadings, dn ef fort should be made to de".1 with its merits and to avoid an abrupt denial solely because of fonn, and pro-ceeded to consider the merits of the pleading. Fulton, supra.
If an intereste person desires a hearing on environmental qualification of equipment, af ter review of Staf f's written judgment, that person may petition Commission pursuant to 2.202 or 2.206.
In re Petition for Emergency and Remedial Action, CLI-80-21, 11 NRC 707, 715 (1980).
The expression of a tentative conclusions upon the start of a proceeding does not disqualify the Commission from again considering the issue on a fuller record. Nuclear Engineering Co., Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 4-5 (1980).
Decision that cause existed to start a proceeding by issuing an immediately effective show cause order does not disquali-fy the Commission from later considering the merits of the matter. No prejudgment is involved, and no due process issue is created. Nuclear Engineering Co., Inc. (Sheffield, Illinois Low-level Waste Disposal Site), CLI-80-1,11 NRC 1, 4-5 (1980).
New matters which cannot be raised before a Board because of a lack of jurisdiction may be raised in a petition under 10 CFR 6 2.206.
Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579,11 NRC 223, 226 (1980).
Where petitioner's case has no discernible relationship to any other pending proceeding involving the same facility (e.g., one concerned with pennit extension), the show cause proceeding set out in 10 CFR 6 2.206 must be regarded as the exclusive remedy. Northern Indiana Public Service Company (Sailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 570 (1980).
Under 10 CFR $ 2.206, one may petition the NRC for stricter enforcement actions than the agency contemplates. Public Service Co. of Indiana (Marble Hill Nuclear GeneratTng Station, Units 1 and 2), CLI-80-10, 11 NRC 438, 442-43 (1980).
The agency has broad discretion in establishing and applying rules for public participation on enforcement proceedings.
Marble Hill, supra, at 440-41.
19.2 Petition for Show Cause Order 19.2(1) cands o
The institution of a show cause proceeding to modify, suspend, or revoke a licen a need not be predicated upon alleged license violathns, but rather may be based upon any " facts deemed to be sufficient grounds for the propose.d action" 10 CFR 6 2.202. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALA8-619, 12 NRC 558, 570-71 (1980).
67
i VI.19.3 19.2(2)
Burden of Proof The Atomic Energy Act intends the party seeking to build or operate a nuclear reactor to bear the burden of proof in any Corsnission proceeding bearing on its application to do so, including a show cause proceeding. Northern Indiana Public Service Company (Bailly Generating Station.
Nuclear 1), ALA8-619,12 NRC 558, 571 (1980).
19.2(3)
Issues in Show Cause Proceeding One cannot seek to intervene in an enforcenent proceeding to have NRC impose a stricter penalty than the NRC seeks. Issues in show cause pro-ceeding are only those set out in the show cause o rde r.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2),
CLI-80-10, 11 NRC 438, 442 (1980).
One may only intervene in an enforcement action upon a showing of injury from the contemplated action set out in the show cause order. One who seeks a stricter penalty than the NRC proposes has no standing to intervene because it is not injured by the lesser penalty. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442 (1980).
19.3 Review of Decision on Request for Show Cause Order Commission accepts petition for sua sponte review of denial of 10 CFR 5 2.206 petition ~~ Virginia Electric Power C_o. (Surry Nuclear Power Station Units 1 & 2), CLI-80-4, 11 NRC 405 (1980).
The validity of a show cause order is judged on the basis of information available to the Director at the time it was issued at the start of the proceeding. Nuclear Engineering Co., Inc. (Shef field, Illinois Low-Level Rad 101ctive Waste Disposal Site) CLI-80-1, 11 NRC 1, 5 (1980).
Issuance of a show cause order renutring interim action is not the determination of the merits of a controversy.
Nuclear Engineering Co., Inc. (Shef field, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 6 (1980).
Commission accepts revf ew of "important policy issue of first impression" of whether civil penalties under the AEA can be imposed on a licensee because of acts Committed by licensee's employees, absent a showing of management fault.
In re Atlantic Research Corp., CLI-80-7, 11 NRC 413 (1980).
Review of an appeal by a dental by the Director of a request for a show cause order is limited to sua sponte review by the Commission. Virginia Electric F Power Co.
(North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 79 n.6 (1979).
The appeal of a show cause order must be accompanied by reasons in writing. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, 12 hRC 558, 570-71 (1980).
68
i VI.19.8
}
Therre are five Counission criteria for detenntning if the Dire:ctor acted within his discretion in issuing an order, as set forth in Consolidated Edison Co. of N.Y., Inc.
(Indian Point. Units 1, 2 and 3), CLI-75-8, 2 NRC 173 (1975), Nuclear Engineering Company, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site),
CLI-79-6, 9 NRC 673, 676 n.1 (1979).
19.4 Notice and Hearing to Licensee. Permittee The Director may issue an immediately effective order without prior written notice under 10 CFR l 2.202(f) if (1) the public health, safety or interest so requires, or (2) the licensee's violations are willful. Nuclear Engineering Company, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 671 (1979).
Latent conditions which may cause hann in the future are a sufficient basis for issuing an innediately effective show cause order where the consequences might not be subject to correction in the future. Nuclear Engineering Company, Inc. (Sheffield, Illinois Low-Level Radioative Waste Disposal Site), CLI-79-6, 9 NRC 673, 677 (1979),
citing Consumer Power Company (Midland Plant, Units 1 and 2),CLI-74-3,7AEC10-12(1974).
Purported violations of agency regulations support an innediately effective order even where no adverse public health consequences are threatened. Nuclear Engineering Company. Inc. (Shef field, Illinois Low-Level Radioactive Waste Disposal Site), CLI-79-6, 9 NRC 673, 677-78 (1979).
D In civil proceedings, action t;ieri by a licensee in the belief that it was legal dot.s not preclude a finding of willfulness. Nuclear Engineering Company, Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal S1tc),
CLI-79-6, 9 NRC 673, 678 (1979).
19.5 Burden of Proof Civil penalties may be imposed for the violation of regula-tions of license conditions without a finding of fault on the part of the licensee, 50 long as it is believed such action will positively af fect the conduct of the licensee, or serve as an example to otners. It matters not that the imposition of the civil penalty night be viewed as punitive.
A licensee is responsible for all violations ccmmitted by its employees, whether it knew or could have known of them.
There is no need to show scienter. One is not exempted frun regulation by operating through an employee. In re Atlantic Research Corp., CLI-80-7, 11 NRC 413 (1980).
(new) 19.7 Delay of Decision The Board delayed decision on a show cause order pending a Commission decision on a point which might ef fect the out-come of the show cause proceeding. Dairyland Power Coopera-tive (La Crosse Boiling Water Reactor) Docket No. 50-409 TTT6L Proceeding) (unpublished decision issued July 8, 1980).
(new) 19.8 Necessity of Hearing D
Once a notice of opportunity for hearing has been pub-lished and a request for a hearing has been submitted, the 69
6 VI.22.2(1) decision as to whether a hearing is to be held no longer rests with the Staff but instead is transferred to the Com-mission or an adjudicatory tribunal designated to preside in the proceeding. Dairyland Power Cooperative (La Crosse Boiling Water Reactor) LBP-80-26, 12 NRC 367, 371 (1980).
(new) 19.9 Intervention The requirements for standing in a show cause proceeding are no stricter than those in the usual licensing proceed-ing. Dairyland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-26, 12 NRC 367, 374 (1980).
20A. Suspension, Revocation or Modification of License A decision on whether to suspend a permit pending a decision on renand must be based on (1) a traditional balancing of the equities, and (2) a consideration of any likely prejudice to further decisions that might be called for by the remand. Public Service Company of New 670, 677 (1980T- (Seabrook Station Units 1 and 2), ALAB-623, 12 NRC Hampshire, et al.
(new) 208. Technical Specifications 10 CFR 6 50.36 specifies, inter alia, that each operating license will include technical specifications to be derived from the analysis and evaluation included in the safety analysis report, and amendments thereto, and may also include such additional technical specifications as the Commission finds appropriate. The regulation sets forth with particularity the types of items to be included in technical speci-fications. Portland General Electric Company, et al. (Trojan Nuclear Plant), ALAB-531, 9 NRC 263, 272 (1979).
There is neither a statutory nor a regulatory requirement that every operational detail set forth in an application's safety analysis report (or equivalent) be subject to a technical specification, to be included in the license as an absolute condition of operation which is legally binding upon the licensee unless and until changed with specific Commission approval. Technical specifications are reserved for those matters where the imposition of rigid conditions or limitations upon reactor operation is deened necessary to obviate the possibility of an abnomal situaticn or event giving rise to an immediate threat to the public health and safety. Trojan, supra, at 273.
(new) 22. Procedures in other Types of Hearings 22.1 Military or Foreign Affairs Functions Under the Administrative Procedure Act, 5 U.S.C. s 554(a)(4),
and the Commission Rules of Practice,10 CFR 9 2.700a, pro-ceduras other than those for formal evidentiary hearings may be fashioned when an adjudication involves the conduct of military or foreign affairs functions. Nuclear Fuel Services Inc. (Erwin, Tennessee), CLI-80-27, 11 NRC 799, 802 (1980).
22.2 Export Licensing 22.2(1)
General Individual fuel exports are not major Federal actions. Westinghouse Electric Corp. (Exports to the Phi 111 pines), CLI-80-15, 11 NRC 672 (1980).
70
5VI.22.2(3) l 22.2(2)
Jurisdiction of Commission The Commission is neither required nor precluded by the Atomic Enercy Act or NEPA from considering impacts of exports on the global commons. Pro-vided tnat NRC review does not include visiting sites within the recipient nation to gather infor-mation or otherwise intrude upon the sovereignty at a foreign nation, consideration of impacts upon the global commons is legally permissible.
Westinghouse Electric Corp. (Exports to the Phillipines) CLI-80-14, 11 NRC 631, 637-644 (1980).
The Commission's legislative mandate neither compels nor precludes examination of health, safetf and environmental effects occurring abroad that could affect U.S. interests. The decision whether to examine these effects is a question of policy to be decided as a matter of agency discretion. M.,11NRCat654.
As a matter of policy, the Commission has deter-mined not to conduct such reviews in export licensing decisions primarily because no matter how thoroughly the NRC review, the Commission still would not be in a position to determine that the reactor could be operated safely. M.,
11 NRC at 648.
The Commission lacks legal authority under AEA, NEPA and NNPA to consider health, safety and D
environmental impacts upon citizens of recipient nations because of the traditional rule of domestic U.S. law that federal statutes apply only to conduct within, or having effect within the territory of the U.S. unless the contrary is clearly indicated in the statute.
---Id.,
11 NRC at 637.
The alleged undemocratic character of the Govern-ment of the Phillipines does not relate to health, safety, environmental and non-proliferation respon-sibilities of the Commission and are beyond the scope of the Commission's jurisdiction.
~Id.,
11 NRC at 656.
22.2(3)
Export License Criteria The AEA of 1954, as amended by the NNPA, provides that the Commission may not issue a license duthorizing the export of a reactor, unless it finds based on a reasonable judgment of the assurances provided, that the criteria set forth in il 127 and 128 of the AEA are met. The Com-mission must also determine that the export would not be inimical to the common defense and security of or health and safety of the public and would be pursuant to an Agreement for Cooperation.
Westinghouse Electric Corp. (Exports to the Pnillipines), CLI-80-14, 11 NRC 631, 652 (1980).
The Commission may not issue a license for D
component exports unless it determines that the three specific criteria in 6 109(b) of AEA are met and also detemines that export won't be 71
% VI.22.2(3) inimical to caimon def ense. Westyin> house
.Flectric Corp. (Exports to thET~hillfpTnes),
CLI-80-14, 11 NRC 631, 654 (1960).
License applications for the export of special nuclear material for use in nuclear power stations did not meet criteria for issuance set forth in %% 109, 127,128 of Af:A. There-fore Conunission referred license applications to President pursuant to % 1266(2) of AEA.
Edlow International Co. (Agents for the Govern-ment of India on ApplTcations to Export Special Nuclear Materials and Components), CLI-80-18, 11 NRC 680, 681 (1980).
In separate opinion Connissioner Gilinsky (with Bradford concurring) disagreed with Dept. of State's interpretation of the President's power to authorize the export by Executive Order. Consni s-stoner Gilinsky stated that the export can take place only if the President grants a waiver from this requirement of the law if Congress allows that waiver to stand. In granting the waiver, the President must find that f ailure to approve the export "would be seriously prejudicial to the achievement of the U.S. non-proliferation objec-I tives, or would otherwise jeopardite the convaan defense and security."
_Id. a t 685-86 O
O 72 l
'0""
- 1. REPORT NUMBE R (Asservejby DOCJ U.S. NUCLE A2 RE' ULATORY COMMISSION NUREG-0386 BIBLIOGRAPHIC DATA SHEET Supp. 3 to Digest No. 2 TITLE ANO SUBTlT LE (A dd Volume No., of appropriate)
- 2. (Leave bimk) l United States Nuclear Regulatory Commission Staff Practice and Procedure Digest 3 RECIPIENT'S ACCESSION NO.
Supplement 3 to Digest No. 2
- 7. AUTHORIS)
- 5. DATE REPORT COMPT E TED Office of the Executive Legal Director I "1981 mon'"
^a September 9 PE RF ORMING ORGANIZATION NAME 'ND M AILirfG ADDRESS (include Zep Codel DATE REPORT ISSUED U. S. Nuclear Regulatory Commission ooyrn i u An Office of the Executive Legal Director August 1982 Washington, D.C.
20555 e it,,v, u.a * >
- 8. fleave Nanki 12 SPONSORING ORGANIZ ATION NAME AND MAILING ADDRESS //nclude 2,0 Codel p
Same as 9, above.
ii. nN NO.
13 TYPE OF HEPORT Supplement 3 to Digest No. 2 of n aioo Cove nt o riacius-e dere>>
NRC decisions and rulings interpreting NRC's 1/01/79 to 12/31/80 Rules of Practice,10 CFR Part 2 15 SUPPLEMENTAHY NOTES 14 (Leave o/ mal Future editions of the Digest will be prepared by contracto r.
16 ABSTH ACT (200 words or less/
The third supplement to the second edition of the NRC Staff Practice and Procedure Digest contains digests of the Commission, Atomic Safety and Licensing Appeal Board and Atomic Safety and Licensing Board decisions issued during the period 1/1/79 to 12/31/80 interpreting the NRC's Rules of Practice (10 CFR Part 2). The supplement includes a number of new subsections and topics not covered in the Digest. These new sections are noted in the index. The Practice and Procedures Digest and its supplements were prepared by attorneys in the NRC Office of the Executive Legal Di rec tor.
It has been published as a reference tool for all persons interested in NRC proceedings.
- 17. KE Y WORDS AND DOCUME NT AN ALYSIS 1 74 DE SC RIP T O RS 17b. IDE N TIF IE RS OPE N E N DE D TE RYS 18 AV AILABILITY ST ATE MEN T 19 SE CVHITY CLASS /Th.s reoorr/
21 NO OF P AGE S Unclassified Unl kited 20 SIJnclassifiedCU RIT Y Cl, ASS ITh.s pyl 22 PRICE s
. NEC F ORM 335 i'1 su
UNITED STATES s ou a r n ciass oast NUCLEAR REGULATORY COMMISSION POST AGE 8 'Iss paio WASHINGTON, D.C. 20565
.Uo c es amir n. in OFFCAL BUSINESS PENALTY FOR PRIVATE USE 8300 L20555078877 1 AN US NRC hbi U
ATIONS MGI DR PDR NUREG COPY LA 2L2 DC 20555 hASHINGTON O
O