ML20070Q271
| ML20070Q271 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 01/24/1983 |
| From: | Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8301260452 | |
| Download: ML20070Q271 (31) | |
Text
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1 .. o UNITED STATES OF AMERICA 00f{ETED NUCLEAR REGULATORY COMMISSION In the Matter of )
) <m, DUKE POWER COMPANY, et al. )
)
Docket Nos?.060r'$l13fy{g
5044bky (Catawba Nuclear Station, )
Units 1 and 2) )
APPLICANTS' RESPONSE TO COMMISSION QUESTIONS J. 2iichael McGarry, III Anne W. Cottingham DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C. 20036 (202) 857-9833 Albert V. Carr, Jr.
i DUKE POWER COMPANY P.O. Box 33189
! Charlotte, North Carolina 28242 l
! Attorneys for-Duke Power l Company, et al.
i January 24, 1983 8J01260452 830124 '
Page TABLE OF CONTENTS Introduction and Background 1 7
Summary of Argument 8
Argument 8
Response to Question 1 18 Response to Question 2 TABLE OF CITATIONS CASES BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). . . ., . . . . . . . . . . . . 8, 19 AEC AND NRC ADJUDICATIONS Cleveland Electric Illuminating Company, et al.
(Perry Nuclear PowerP .lant, Units 1 and 2), 23-24 LBP , NRC (September 15, 1982) . . . .
l Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2) , ALAB-687, NRC 1, 3, 4, 5, 6, (August 19, 1982) . . . . . . . . . . . . . .
7, 3-9, 11-12, 13, 14, 15, 16, 17, 19 Northern S tates Power Comnany (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188 (1973), aff'd., CLI-73-12, 6 AEC 241 (1973), aff'd. sub. nom. BPI v. AEC, 502 F.2d 2, 3, 8, 14, 424 (D.C. Cir. 1974) . . . . . . . . . . . . . . 19 Wisconsin Electric Power Company, et al.
(Koshkonong Nuclear Plant, Units 1 and 2) , 19, 20 CLI-74-45, 8 AEC 928 (1974) . . . . . . . . . . .
i l
1 .
t I
i REGULATIONS Page l
10 CFR S2. 714. . . . . . . . . . . . . . . . . . . . 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 25 ;
10 CFR 52.751a . . . . . . . . . . . . . . . . . . . 2, 18 10 CFR Part 50 . . . . . . . . .. . . . , . . . . . 12 i
10 CFR Part 51 . . . . . . . . . . . . . . . . . . . 12 i
STATUTES i
Atomic Energy Act of 1954, 42 U.5.C. S2239(a) . . . . . . . . . . . . . . . . 8 i
4 e
ii
Appliennto January 24, 1983 i UNITED STATES OF AMERICA NUCLEAR BEGULATORY COMMISSION In the Matter of )
)
DUKE POWER COMPANY, et~~
al. ) Decket Nos. 50-413
) 50-414 (Catawba NucJear Station, )
Units 1 and 2) )
APPLICANTS' RESPONSE TO COMMISSION OUESTIONS On December 23, 1982, the Nuclear Regulatory Com-mission (" Commission") issued an order stating its inten-tion to review two issues raised by the decision of the l Atomic Safety and Licensing Appeal Board (" Appeal Board")
in Duke Power Company, et al. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC (August 19,-1982)
("ALAB-687"). Therein, the Commission directed the NRC Staff to file a brief setting forth its position on these .
issues, and indicated that other parties might do so also.
Accordingly, Duke Power Company, et al. (" Applicants") file the instant response.
Introduction and Background The Commission's Rules provide strict standards which must be met by contentions in order to be accepted as issues for litigation in its proceedings. Any contention filed must meet the substantive standards for specificity and basis set forth in 10 C.F. R. $2.714(b). Moreover, contentions must ba filed in a supplement to an inter-(
venor's petition to intervene no later than fifteen
days before the special prehearing conference held pursuant to 10 C. F. R. 2.751a. (See 10 C.F.R. $2.714(b)). No con-tention filed after that date will be considered timely.
Untimely contentions must be assessed against the factors set forth in 10 C.F.R. $2.714(a)(1)(1-v).
NRC Rules of Practice recognize that certain documents (such as, for example, the NRC Staff's Environmental Impact Statement and Safety Evaluation Report) which relate to the specific licensing action under consideration will not be available to intervenors at the time contentions must be filed. Notwithstanding this fact, the requirement that intervenors file contentions prior to the availability of such documents is reasonable, because of the wealth of information respecting the specific licensing action otherwise available to intervenors. That information includes the application, the applicant's Environmental Report (ER) and its Final Safety Analysis Report (FSAR), as well as the documents contained in the local public document room and the NRC's document room in Washington, D.C. Northern States Power Company (Prairie Island Nuclear
! Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 192 (1973), aff'd. CLI-73-12, 6 AEC 241 (1973), aff' d. sub.
nom. BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). In addition, in the case of an operating license proceeding --
such as this one -- there is available to intervenor
l
. 1 the record of the entire construction permit proceeding.
Certainly, under any reasonable standard, sufficient in-formation exists upon which intervenors can file specific contentions, and the Commission's procedures in this regard l have been reviewed and found proper. See Prairie Island, 6
! AEC 188. See also ALAB-687, slip op. at pp. 16-17.
In ALAB-687, the Appeal Board was faced with a sit-uation in which the Licensing Board had admitted "condi-tionally" certain contentions which it acknowledged did not meet the specificity and basis standards set out in 10 C.F.R. 2.714. The Licensing Board had determined that those contentions were to be admitted conditioned upon their being made more specific following either discovery or the subsequent availability of applicant and Staff documents which related to their subject matter.
The Appeal Board concluded, after its review of the applicable case law and Commission regulations, that a licensing board is not authorized to admit conditionally, for any reason, a contention which " falls short" of meeting the specificity requirements. However, it further held
! that section 2.714(b) may not serve to bar the later submittal of a contention based upon information not in existence or publicly available 15 days prior to the special prehearing conference "but which is nonetheless an l essential element of the license application or the staff's
prehearing review." As the Appeal Board pointed out, so to interpret section 2.714(b) "would sanction an unfair result in contravention of hearing rights conferred by Section 189a of the Atomic Energy Act . . . . " ALAB-687, slip op.
at 11.
Having reached this conclusion, the Appeal Board examined the bases for the Licensing Board's conditional admission of contentions, rejecting unequivocally the concept of admitting a non-specific contention which could be brought into compliance following discovery:
[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. Stated otherwise, neither Section 189a. of the Act nor Section 2.714 of the Rules of Practice permits the filing of a vague, unparticularized con-tention, followed by an endeavor to flesh it out through discovery against the applicant or staff.
[Id., slip op. at 13].
The Appeal Board further noted that such reasoning was based upon the assumption that, prior to the special prehearing conference, the documentation necessary to fashion an adequately parti-cularized contention both has come into existence and is available to a potential intervenor upon diligent search. For a petitioner can scarcely be expected to forecast the content of documents that it has not examined and cannot examine because they have not yet surfaced. In short, in order to put forth a specific contention res-pecting, for example, the adequacy of an environmental impact statement or an emergency plan, one must have had the opportunity to e- . -
examine the statement or plan. Indeed, with-out that opportunity, it is not possible for a petitioner even to determine whether there is warrant for a contention on the subject -- i.e.,
whether the impact statement or emergency plan is open to a claim of insufficiency on some colorable ground. [Id., slip op. at pp. 13-14 (footnote omitted)].
Thus, though acknowledging the general trend of the applicable case law, the Appeal Board recognized that, for one narrow category of contentions, a mechanical application of the Commission's regulations would be unreasonable. Such contentions are those which are filed late not because an intervenor has defaulted on his
" ironclad obligation," but rather because they are based solely on a document " bearing directly upon the licensing action in issue" which was not available to the intervenor prior to the time for filing contentic.... The Appeal Board, then, addressed the question of precisely how a licensing board is to deal with the circumstance that, at the time of the special prehearing conference, one or more documents bearing directly upon the licensing action in issue is not at that time available to an intervenor.
(ALAB-687, slip op. at p. 14). In such a situation, the Appeal Board ruled, as a matter of law a contention cannot be rejected as untimely if it (1) is wholly dependent upon the content of a particular document; (2) could not therefore be advanced with any degree of specificity (if at all) in advance of the public availability of that
document; and (3) is tendered with the requisite degree of promptness once the document comes into existence and is accessible for public examination. [Id., slip op. at 16].
The Appeal Board was careful to distinguish this narrow class of contentions from those susceptible of filing within the time prescribed in the rules. In the latter case, as the Appeal Board noted, the determination of whether to accept such a late contention must involve a consideration of all five of the factors set out in section 2.714(a)(1), not just the reason why the contention is late. However, in the case where the nonexistence or public unavailability of relevant documents made it impossible for a sufficiently specific contention to have been asserted at an earlier date, that factor must be deemed controlling; it is not amenable to being overridden by other factors such as that relating to the broadening of the issues. [Id. at 17].
Upon review of ALAB-687, the Commission has asked two questions.
- 1. Does section 189a. of the Atomic Energy Act of 1954, as amended, require an Atomic Safety and Licensing Board to give controlling weight to the good cause factor in 10 CFR 2.714(a) (1)(i) in determining whether to admit a late-filed con-tention that could not be filed in a timely manner because the ' institutional unavailability' of I licersing-related documents precluded the timely formulation of that contention with the requisite specificity?
- 2. Is there ' good cause' for filing a late conten-tion when the reason given for late filing is the previous ' institutional unavilability' of an agency document, e.g. the FES, but the information relied on was available early enough to provide the basis for a timely filed contention, e.g. in an applicant's environmental report?
Summary of Argument It is Applicants' view, with respect to Question 1, that under the proper circumstances a licensing board should give controlling weight to the " good cause" factor in determining whether to admit a late-filed contention.
In this context, " proper circumstances" means (1) that the document which gives rise to the contention ic a document which is "an essential element of the license application or the Staff's prehearing review [of that application]"
(ALAB-687, slip op. at 11; also see Id. at p. 18, n. 127),
and (2) that the contention itself is based solely upon that document, e.g., is " wholly dependent" upon the documents. In sum, Applicants take the position that the
" good cause" factor is controlling only in an instance where an intervenor can demonstrate that its late-filed coatention is late for reasons beyond its control, viz, that it was prompted by and is based solely upon a licensing document available only after the time for filing contentions has passed.
With respect to Question 2, Applicants submit that it is indeed proper to scrutinize closely any late-filed contention which is allegedly based upon a licensing document available only after the time for the intervenor to file its contentions has passed. Such scrutiny is necessary to assure a proper balance between the hearing rights of intervenors and the need to have contentions
settled at as early a stage as possible. Without an exam-ination of an untimely contention of this type, it would be entirely too easy for an intervenor to raise and justify late contentions simply by alleging that what he seeks to challenge is not the substance of a matter but, rathar, an
" inadequate" NRC Staff assessment of that matter.
ARGUMENT
- 1. RESPONSE TO QUESTION 1 In Applicants' view, the Commission possesses the necessary authority to tailor, if necessary, its hearing procedures to accommodate the issues raised in Question 1.
i Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. $223 9 ( a) , (" AEA") , Gddresses, inter alia, public participation in administrative proceedings.1 In those instances wherein public participation is sought, NRC precedent has firmly established that, pursuant to its broad rulemaking authority, the Commission may impose reasonable preconditions upon such participation. See, i.e., Prairie Island, 6 AEC at 191-192. See also the Appeal Board's decision in ALAB-687, wherein it recognized, citing BPI v. AEC, that "the Commission may condition the 1 Section 189a provides in pertinent part:
In any proceeding under this Act, for the granting . . . of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
exercise of that [Section 189a hearing] right upon the meeting of reasonable procedural requirements." ALAB-687, slip op. at pp. 16-17.
Section 2.714(b) of the Commission's Rules of Practice sets forth preconditions as to the filing and admissibility of contentions.2 Both timely and untimelj proposed contentions must meet the substantive requirements of specificity and basis set forth in section 2.714(b).
However, in order to promote the timely and orderly conduct of NRC proceedings, late-filed contentions ( those submitted later than 15 days prior to the prehearing conference) are subjected to an additional procedural requirement. Before the presiding officer rules on the admissibility of an untimely contention, the factors listed in section 2 Section 2.714(b) provides:
Not later than fifteen (15) days prior to the holding of the special prehearing conference pursuant to 2.751a, or where no special pre-
- hearing conference is held, fifteen (15) days l prio; to the holding of the first prehearing i conference, the petitioner shall file a supple-ment to his petition to intervene which must include a list of the contentions which peti-tioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity. A petitioner who fails to file such a supplement which satisfies the requirements of this paragraph with respect to at least one contention will not be permitted to participate as a party. Additional time for filing the supplement may be granted based upon a balancing of the factors in paragraph (a) (1) of this section.
2.714(a) (1) must be considered and balanced.3 The situation contemplated by Question 1 warrants a more limited application of the criteria set forth in section 2.714(a)(1). Here the untimeliness of the con-tention is alleged to be due not to any carelessness or lack of foresight or diligence by the petitioner. Rather, untimeliness results from the late receipt or "institu-
, tional unavailability" of certain licensing-related i
documents, presumably containing previously undisclosed i relevant information, the absence of which " precluded the timely formulation of that contention with the requisite specificity."
The equities of this particular situation, and the manner in which such untimely contentions should be treated under section 2.714, were the focus of ALAB-687 and are also of central concern here. Consistent with the Appeal 3 The five factors of section 2.714(a) (1) are as follows:
( i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
i (iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the prcceeding.
t I.
1 Board's treatment of this problem, Applicants submit that late-filed contentions said to be based upon a licensing-related document not available 15 days before the prehearing conference should be reviewed under the three-part test set forth in ALAB-687 in order to determine whether they should be considered " untimely" under Commission regulations. If the contention satisfies this test, it should not be considered " untimely"--in other words, controlling weight should be given to the " good cause" factor in section 2.714(a)(1)(i) and no balancing of the other factors in this provision need be done.
Before addressing any arguments as to how this particular type of " untimely" contention should be accommodated under the Commission's Rules of Practice, Applicants wish to clarify certain key terms and assumptions used in Question 1. As suggested by the language of the Question, the only documents whose unavailability triggers special consideration are those which are " licensing-related." The Appeal Board offered some insight as to the kind of documents meant to be included under this term in ALAB-687, wherein it stressed that both the Licensing Board's rulings and . . . [our]
discussion are in the context of the unavailability of documents associated with the license application and the staff's prehearing review thereof (e.g., the applicant's emergency plan and the staff's environmental impact statement) . An intervenor's endeavor to inject a belated contention grounded upon newly acquired information not so associated (such as
a just-executed affidavit asserting for the first time quality assurance deficiencies during the construction of the facility) is an entirely different matter.
[ALAB-687, slip op. at p. 18, n.17. (emphasis added)].
Consistent with this discussion, the only documents whose " institutional unavailability" (i.e., those documents which by the very nature of the process are not available to an intervenor at the time contentions must .be filed pursuant to 10 C.F.R. $2.714(b)) could provide possible grounds for special consideration of a contention under the ALAB-687 test are those produced by the NRC or the appli-cant in every licensing proceeding pursuant to 10 C.F.R. Parts 50 and 51. These are limited to ER and FSAR amend-ments, the NRC Staff's Draft Environmental Statement (DES),
Final Environmental Statement (FES), and Safety Evaluation Report (SER), the ACRS letter concerning findings in the SER, and the off-site emergency plan.4 As to untimely contentions allegedly based on any other documents arguably unavailable at the time contentions must be filed, an intervenor must meet the $2.714(a)(1) test.
Turning to the argument in chief, the Appeal Board in ALAB-687 focused on the question of " precisely how a licensing board is to deal with the circumstance that, at the time of the special prehearing conference, one or more 4 Because applicants for an operating license must submit their ER and FSAR with the application, those documents are of course available to intervenors before their contentions must be filed.
documents bearing directly upon the licensing action in issue have not yet come into existence or become publicly available." ALAB-687, slip op. at p. 14. In particular, the Appeal Board was concerned with the question of whether a late-filed contention whose untimeliness allegedly stem-med from the " institutional unavailability" of one or more of the documente discussed above should be held to any admissibility requirements other than those contained in section 2.714(b). Applicants submit that the Appeal Board's handling of this question was correct.
The Appeal Board found, on the one hand, that the unavailability of a " licensing-related" document at the time when contentions must, pursuant to section 2.714(b),
be filed, does not authorize the conditional admission of a l
contention subject to its proponent's providing the requi-site specificity after the availability of new documentary information (or after discovery):
l Given the terms and history of Section 2.714(a),
we are compelled to the conclusion that a li-censing board is not authorized to admit condi-l tionally, for any reason, a contention that falls
, short of meeting the specificity requirements.
l [ALAB-687, slip op. at p. 113 However, the Appeal Board further ruled that section l 2.714(b) should not be read as barring the "later asser-tion of a new contention founded upon information not in existence or publicly available 15 days prior to tha j special prehearing conference," if such information is 1
found to constitute "an essential element of the license application or the Staff's prehearing review." Id.5 Such an interpretation of section 2.714(b) would " sanction an unfair result in contravention of hearing rights conferred by Section 189a of the Atomic Energy Act of 1954, as amended, 42 US.C. 2239(a) ." Id.
While it reaffirmed its holding in Prairie Island, 6 t AEC 188, that intervenors' contentions must meet the specificity requirements of section 2.714(b) before the availability of discovery, the Appeal Board stated that implicit in the Prairie Island treatment of cne specificity requirements was the assumption that, prior to the special prehearing conference, the documentation necessary to fashion an adequately particularized contention both has come into existence and is available to a potential intervenor upon diligent search. [ALAB-687, slip op. at p. 13].
In the case of an " institutionally unavailable" licensing-related document such as those with which we are now concerned, the Appeal Board indicated that an inter-venor could not be expected to formulate an adequately specific contention without having had an opportunity to examine the document.6 5 In other words, pursuant to the definition suggested above, (pp. 11-12, supra) the information in question must be found in the ER or FSAR amendments, DES, FES, SER, ACRS letter, or of f-site emergency plan.
6 The Appeal Board, as had the Licensing Board, summarily rejected Applicants' suggestion that a sufficiently specific emergency planning contention could be founded upon currently-available documents (i.e., pertinent NRC (footnote continued)
With these disparate considerations in mind, the Appeal Board then focused specifically on the question of how a licensing board should evaluate late-filed contentions whose timely submittal has allegedly been precluded by the unavailability of licensing-related documents. In such a situation, the crucial area of inquiry is (as opposed to that with other types of late-filed contentions) whether the untimeliness of the contention is justified because it stems from reasons beyond the control of the intervenor, e.g., whether it is based solely upon the availability to an intervenor of licensing-related documents. Accordingly, application of the traditional balancing test using the factors in section
- 2. 714 ( a) (1) is inappropriate. ALAB-687, slip op. at p. 17.
Recognizing that a somewhat different procedural approach was needed in order to accommodate the equities of this situation, the Appeal Board held that when a late-filed contention based upon a licensing-related document is submitted, it cannot be reject 2d as untimely if it (footnote continued from previots page) regulations and regulatory guides, generic North Carolina and South Carolina state plans, and existing plans for other nuclear facilities in those two states).
ALAB-687, slip op. at p. 14, n.14. While the Appeal Board's ruling on this particular question may not be directly relevant to the issues now before the Commission, Applicants urge that they not be prematurely precluded by this dicta in ALAB-687 from challenging the timeliness of any contentions which may be raised in the Catawba proceeding upon the issuance of the FES, the of f-site emergency plans, the SER, or the ACRS letter under the three-part test established by the Appeal Board in ALAB-687.
)
l (1) is wholly dependent upon the content of a particular document; (2) could not therefore be advanced with any degree of specificity (if at all) in advance of the public availability of that document; and (3) is tendered with the requisite degree of promptness once the document comes into existence and is accessible for public examination. [ALAB-687, slip op. at p. 16].
Applicants concur with the Appeal Board's determination that there is no inherent conflict between the application of this test and "the Commission's direction in Section 2.714(b) that there be a balancing of the five Section 2.714(a) factors [ for untimely I
contentions]." (pd.) Rather, the " wholly dependent" test can be considered a screening device, used only to evaluate those contentions allegedly based on licensing-related documents to determine whether section 2.714(a) (1) review will be appropriate. The application of the " wholly dependen t" test to this class of contentions merely places reasonable constraints upon the acceptance of contentione which are by definition untimely. Moreover, the application of the three-part test under these circumstances provides an equitable way of balancing an intervenor's hearing rights against the acknowledged need to settle upon the issues to be litigated at hearing as expeditiously and efficiently as possible.
Consistent with this position, the Appeal Board ruled in ALAB-687 that where the nonexistence or public unavailability of relevant documents made it impossible for a sufficiently specific contention to have been i
l
asserted at an earlier date, that factor must be deemed controlling; it is not amenable to being overriden by other factors such as that relating to the broadening of the issues. [Id., slip op.
at p. 17].
Applicants interpret this statement to mean that if an untimely contention based on an " institutionally unavail-able" document is found to meet the " wholly dependent" test established by the Appeal Board, then the " good cause" factor of section 2.714(a) (1)(i) should be deemed satis-fied. As so interpreted, Applicants agree with this statement.7 The " good cause" factor becomes controlling only when the intervenor succeeds in demonstrating that but for the issuance of the " licensing-related" document in question, its contention could not have been formulated with sufficient specificity, since it was " wholly depen-dent" on that document. It is the burden of the intervenor to make such a showing.
Accordingly, in answer to Question 1 Applicants submit that the Commission may determine that a licensing Board
- should give controlling weight to the " good cause" factor 7 It could also be argued that satisfaction of the " wholly dependent" test constitutes a substitute for satisfaction of the " good cause" factor. The distinction between this interpretation of the " wholly dependent" test and that offered in the text above is largely academic. The result under either interpretation is the same: if a contention meets the
" thr e e-par t" test, it need not be subjected to a balancing of the remaining four factors under section 2.714 ( a) (1) . Rather, it is to be considered " timely" based solely upon satisfaction of this test.
in 10 C.F.R. $2.714(a)(1)(i) in determining whether to admit a late-filed contention, if that contention has been found to fulfill the three-part test set forth in ALAB-687 and, consequently, has been shown to be " wholly dependent" on the licensing-related document on which it is based.
- 2. RESPONSE TO QUESTION 2 In answer to Question 1, Applicants have set forth their view that the three-part test established in ALAB-687 is the proper standard by which to measure contentions t
allegedly based upon and prompted by " institutionally unavailable" documents. In Question 2 the extent of the showing necessary to satisfy the three-part test of ALAB-687 is raised. Specifically, Question 2 asks whether it is proper to scrutinize a late-filed contention that is allegedly premised upon a previously unavailable institutional document, to determine if such contention could have been timely filed, e.g., is " wholly dependent" upon such document. Applicants maintain that it is proper so to scrutinize.
l l
l i
To begin with, regardless of the nature of the contention allegedly arising from a previously unavailable institutional document, there can be no question that it has been filed after the section 2.751a prehearing conference and therefore is late. Under these cir-cumstances it is necessary to devise a process Which assures that such late contentions are indeed premised exclusively on the now available institutional document.
The Appeal Board recognized the propriety of such inquiry in ALAB-687. See ALAB-687, slip op. at pp. 14, n. 14, and
- p. 18, n. 17, wherein the Appeal Board stated:
We do not, of course, reach the question Whether the availability of the environmental report or other materials might trigger an obligation to file environmental contentions not directed to the adequacy of the staff's performance of its NEPA responsibilities.
It is also worthy of reemphasis that the referred rulings likewise do not embrace any Licensing Board determination respecting . . . whether there was sufficient publicly available information to enable the formulation prior to the prehearing conference of an adequate contention on a particular subject . . . .
l To hold that there is no obligation to demonstrate that a late-filed contention based upon a previously unavailable institutional document could not have been filed earlier would permit an intervenor to delay filing contentions on the topics discussed in such an institutional document until such time as it became
available. The Appeal Board, the Commission and the federal courts have squarely faced this issue. 3ee Prairie I_ sland , 6 AEC at 192; Wisconsin Electric Power Co., et al.
(Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 929 (1974); BPI v. AEC, 502 F.2d at 429. In each l
instance, the decision making body has ruled that it is necessary for an intervenor at the initial pleading stage to examine the then presently available information and formulate contentions. Id. Indeed, the Commission has stated:
Although the regulatory staff safety evaluation, the draft environmental impact statement, and the ACRS review have yet to be completed, petitioners inexplicably ignore the wealth of data available in the voluminous application filed by the utilities seeking construction permits in this proceeding.
[I]n view of the extensive material available to petitioners, the Commission is unpersuaded that its early notice of hearing denies petitioners an i adequate opportunity to prepare specific conten-tions in support of a request for intervention.
[Koshkonong, 8 AEC at 9293 It should be noted that the Appeal Board in ALAB-687 also addressed this point. See p. 4 supra.
In sum, where an intervenor makes a proper showing,--
i.e., that it is indeed challenging the adequacy of the Staff review on matters of which it could not have been previously aware--then, subject to satisfaction of the specificity and basis requirements of section 2.714(b), the
contention should be viewed as permissible. However, to be equally clear, it is under no circumstance permissible for an intervenor to attempt to circumvent, through the device '
of alleging, i.e., that NRC Staff assessment of a subject is inadequate, its burden to raise in a timely fashion a subject fully discussed in documents available to it at the time contentions were to be filed.
Further discussion of this issue is perhaps best treated by way of example. In the instant proceeding Intervenors Palmetto Alliance (PA) and Carclina Environmental Study Group (CESG) jointly raised the following late contention which they allege was premised upon the DES:
- 16. The DES fails to consider this aspect of the enlarged fuel pool
- the effect of the crash of a heavy aircraft on the fuel pool structure.
Although external hazards are said to be reviewed, p. 5-33, there is no indication that this specific hazard was found to be negligibly small. Within the pLst decade a commercial airliner crashed not far from the Catawba site.
l Morning fogs are a frequent occurrence at the l
site, a contributing factor to the airplane accident. There is no reference to morning fogs in the DES, but it is recognized that the plume will cause fog, p. 5-6. The fuel pool building is less substantial in structure than the containment and is only partially shielded by the containments, figure 4.1. A crash into the fuel pool accompanied by fire could disable the water circulation and supply of the pool. Depending on the heat supplied to the pool by spent fuel, and l the ".ime necessary to regain functionality, the pool water could boil down, leading to fuel assembly exposure and cladding failure.
Sufficiently heavy fragments of the plane could damage the cladding of assemblies in the pool by impact. The consequences of the most severe
accident would cause a release of the magnitude of the most severe reactor accidents and should be considered in the DES.8 The essence of this contention is that "there is no indication that this specific hazard was found to be negligibly small." In support of this assertion, Intervenors argue that fogging and past experience indicate that the probability of an aircraft accident is such that it should be factored into the DES. However, as pointed out in Applicants' response to the contention, a plethora of information specifically addressing the probability of aircraft accidents at the site is contained in the Applicants' FSAR. (FSAR Section 2.2.3.1.3). In light of that discussion, and the conclusions reached therein with respect to the extremely low (on the order of 10-7) probability of such an accident at the plant site (not just the spent fuel pool building) , it cannot plausibly suffice for Intervenors to attempt to justify their untimely submittal of this contention, which seeks to litigate the probabilities of an aircraft crash at the site, and the consequences of such a crash, simply by asserting that the Staff evaluation of the environmental consequences of such an accident is inadequate. It is clear, as the Licensing i
l 8 Palmetto Alliance and Carolina Environmental Study Group Supplement to Petitions to Intervene Regarding Draft Environmental Statement, September 22, 1982, at pp. 9-
- 10. ("Intervenors' Supplement").
Board commented in ruling on the matter, that "a contention with exactly the same factual allegations might have been based on the FSAR and proferred long ago."9 Another example is seen in Intervonors' DES Contention
- 14. Therein they state:
l 14. The calculations of dose commitments, DES 5.4.3.1, differs from that in the CP FES. ' Cal-culation for the midpoint of station operation represents an average exposure over the life of the plant.' We doubt the correctness of this assumption. Longer-lived radionuclides will build up, increasing the dose level. Bio-accumulated radionuclides will also build up.
We doubt the general applicability of the concept that 'most of the internal dose commitment for each nuclide is given during the first few years i of exposure because of the turnover of the nuclide by physiological processes and radio-active decay.' We particularly view Strontium 90 as a significant exception to this approach. We believe that, as a result, DES dose commitments are nonconservative and will understate actual exposure.lO In ruling thereon the Licensing Board noted:
[ DES] Section 5.9.3.1 referenced in the conten-tion ia actually generic in nature and attempts l
to convey relevant features of the Staff's standard operating procedure for computing dose commitments, as detailed in Regulatory Guide 1.109, Revision 1. This Guide, issued in 1977, was also the basis of dose models used by the Applicants in the ER (see ER { 5.2.4), as explicitly noted there. Clearly, this contention is not ' wholly dependent' upon the DES; it could l have been advanced prior to the first prehearing l
9 Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference), December 1, 1982, at p. 21. (" December 1, 1982 Memorandum and Ord e r") .
10 Intervenors' Supplement at p. 8.
I conference. We reject it as untimely. [ December ,
1, 1982 Memorandum and order.at pp. 19-20 l (footnote omitted)3.11 l
11 Lest the Commission thank Catawba is an isolated instance, Applicants reference Parry, wherein the Licensing Board was confronted with what appears to be a substantially identical late-filed contention allegedly based upon the DES. The Board set out the matter as follows:
Applicant, in its July 28, 1982, filing stated that virtually all the disagreements Sunflower has with i how the staff computes dose level;s to humans from i routine reactor emissions can be traced to its disagreements with Regulatory Guide 1.109,
' Calculations of Annual Doses to Man From Routine Releases of Reactor Effluents for the Purpose of l Evaluating Compliance with 10 C.F.R. 50, Appendix I,'
October 1979 (Rev. 1) and with NUREG-0016,
' Calculation of neleases of Radioactive Materials in Gaseous and Liquid Effluents From Boiling Water Reactors ( BWR-GALE Code) , ' January 1979 (Rev. 1).
Both applicant and staff indicated that these I
documents were referenced in applicant's Final Safety Analysis Report (FSAR) in several sections, including I 11.2.3.4, 11.3.3.3, 12.4.4.4, 3.5.2.4, 3.5.2.5 and 3.4.3.3. Consequently, the DES did not provide Sunflower with any new information about how radiation doses would be calculated in this proceeding. See Wisconsin Electric Power Co.
(Koshkonong Nuclear Plant, Units 1 and 2), CLI 45, 8 A.E.C. 928 (1974)(contentions should be filed based on the information available prior to issuance of a DES and SER) .
Nevertheless, Sunflower's replies do not in any way clarify how the DES provided it with new information.
Indeed, Sunflower's Response to Applicant's Answer, September 3, 1982, agrees that "the draft environmental statement does not contain nay new information."
i Under the circumstances, we have no choice but to agree with all the parties that the DES cor.tains no new information relevant to this contention and that it therefore does not contain good cause for late filing. [ Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2), LBP (footnote continued)
t If the Commission permits an intervenor to put in issue a late-filed contention based upon an institutional document not previously available by simply asserting that it seeks to challenge, i.e., the adequacy of the NRC Staff review, it will preclude the other parties from j demonstrating that such contention is not new. The above illustrations demonstrate there is a need for such process.
In sum, where a Licensing Board finds that a late-filed contention premised upon an institutional document not previously available cannot satisfy the three-part test of ALAB-687, such contention should be denied. Thereafter, if an intervenor continues to seek to litigate the matter, it should make the showing set out in section
- 2. 714 ( a) (1 ) (i-v) . Such a course of action was followed in the instant proceeding. See the Licensing Board's December 1, 1982 Memorandum and Order at p. 13, wherein it stated with reference to a number of late contentions, that "should intervenors seek reconsideration [of the licensing board's rejection on the grounds of untimeliness] they must (footnote continued from previous page)
, NRC , (September 15, 1982), slip op. at
- p. 2].
supply information that will allow us to balance the five factors of 10 C.F.R. 5 2. 714 (a) (1) . "
Respectfully submitted,
/
/)'t '
4Y/f
[/J. Michael McGarr)f, III y Cottingham
. Anne W.
DEBEVOISE & LIBERMAN 1200 Seventeenth Street, W.W.
Washington, D.C. 20036 (202) 85709833 Albert V. Carr, Jr.
DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.
January 24, 1983 l
l I
I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
DUKE POWER COMPANY, et al. ) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response to Commission Questions" in the above captioned matter have been served upon the following by deposit in the United States mail this 24th day of January, 1983.
James L. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan Albert V. Carr, Jr., Esq.
Union Carbide Corporation Duke Power Company P.O. Box Y P.O. Box 33189 Oak Ridge, Tennessee 37830 Charlotte, North Carolina 28242 Dr. Richard F. Foster Richard P. Wilson, Esq.
P.O. Box 4263 Assistant Attorney General Sunriver, Oregon 97702 State of South Carolina P.O. Box 11549 Chairman Columbia, South Carolina 29211 Atomic Safety and Licensing Board Panel Robert Guild, Esq.
U.S. Nuclear Regulatory Attorney-at-Law Commission P.O. Box 12097 Washington, D.C. 20555 Charleston, South Carolina 29412
- Chairman Palmetto Alliance
! Atomic Safety and Licensing 2135 1/2 Devine Street l Appeal Board Columbia, South Carolina 29205 U.S. Nuclear hegulatory Commission Washington, D.C. 20555
Jesse L. Riley Scott Stucky 854 Henley Place Dockating and Service Section Charlotte, North Carolina 28207 U.S. Nuclear Regulatory
, Commission Henry A. Presler Washington. D.C. 20555 Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28207
/b5 4 $$$
. Michael McGarpy, IE l
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