ML20076D034

Licensee Motion to Dismiss & Brief in Opposition to Appeal.* Failure to File Brief/Associated Failure to Provide Parties/ Commission W/Notice of Error Mandates Dismissal of Appeal. W/Certificate of Svc & Svc List

ML20076D034
Person / Time
Site:	Vogtle
Issue date:	07/22/1991
From:	Domby A, Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	NRC COMMISSION (OCM)
References
CON-#391-12026 90-617-03-OLA, 90-617-3-OLA, OLA, NUDOCS 9107260019
Download: ML20076D034 (11)

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91 f t 23 NI SI UNITED STATED OF AAERICA NUCLEAR REGULATORY COMMISDION REQEILUIE COMMIDSI91LERE i

In the Matter of  ;

t GEORGIA POWER COMPANY, t si gl. DOCKET NOS. 50-424-OLA 50-425-OLA 8

i (Vogtle Electric Generating ASLDP No. 90-617-03-OLA 7 Plant, Units 1 and 2)  :  ;

LICEH3EE'D HCTIDH TO DIDMIOD hND BRIEP IN OPPOSITION TO APPEAL on May 25, 1991 Georgians Against Nuclear Energy ("GANE")

filed with the Commission an untitled document, presumably a notice of appeal, sking the Commission to set aside the Atomic Safety and Licensing Board's May 15, 1991 Memorandum and order (Terminating Proceeding). GANE's filing expressly requests an appeal "on the merits," but GANE has subsequently filed no appellant's brief, as is required by the Licensing Board's Order and the Commission's Rules of Practice.I l

I The Licensing Board's May 15, 1991 Order specifically set forth the requirements for perfecting appeals, including the time limitation of ten (10) days for .'il.ng a no'.'.cs of appeal after service of the decision and a subsequ.cnt thirty (30) day period 9107260019 910722 PDR ADOCK 05000424

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Accordingly, au discussed more fully below, GANE's appeal should be dismissed.

ETATEMENT OF CASE On May 25, 1990, Georgia Power Company ("Licensoo")

applied-for license amendments to change a Technical specification in both the Vogtle Unit 1 and Unit 2 licensos to permit the high jacket water temperature trip on the emergency diosol generators to be bypassed during emergency starts. This amendment wcs proposed to enhanco plant safety by preventing a spurious-trip during an emergoney start. The proposed bypass of a diesel generator's high jacket water temperaturo trip during omergency starts is specifically permitted by Regulatory Guide 1.9, ROV. 2, if the operator has sufficient time to react appropriately to an abnormal diesel generator condition.

The NRC Staff concurred with Licensco's proposal and published a proposed no significant hazards consideration finding and provided an opportunity for hearing. 55 Fed.

l- Reg. 25,756 (1990).

On July 23, 1990 GANE petitioned to intervene, but made no showing of standing. The Licensing Board, however, provided GANE a further opportunity to cure the deficiencies in its for filing the appellant's brief. GANE's filing on May 25, 1991 was within ten (10) days of T.orvice of the Order, but no brief followed.

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petition and to plead contentions. Geornia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), LDp-90-29, 32 N.R.C.-89 (1990).

GANE filed an Amendment to Petition for Leave to Intervono on September 4,-1990. In separato rosponses filed on September 14, 1990, both the NRC Staff and Licensco continued to oppose the intervention on the grounds that GANE had not demonstrated standing and had not satisfied the minimal pleading requirements for contentions set forth in 10 CFR 2.714 (1990).

A prohoaring conference was hold cm September 19, 1990.

At the prohoaring conferenco, the Licensing Board advised GANE that its petition appeared do cient. Tr. 9. The Board observed that GANE had not sufficiently identified its factual basis for contentions, and that the Board and other parties had a difficult timo identifying "what you're going to argue" as a factual basis. Tr. 75-76. Similarly, the Board noted a lack of any reference as a legal basis for GANE's contentions. Tr. 62. GANE asserted during the '

conference that "we don't fool called upon at this time to provido_a basis for arguing-with (the license amendment)."

s Tr. 8.

The Board noted that the NRC's regultDions' required.GANE to identify the expert opinion on which GANE was relying and I 3 1

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i that the petition did not do so. Tr. 75. GANE then identified an individual ac an oypert from whom it had derived information, but acknowledged that the export was not aligned with GANE and had problems with GANE's position in this proccoding. Tr. 93. Ultimately, GANE acknowledged that it might not have a position in the absence of discovery.

- Tr. 151-152.

At the end of the conference, prompted by misunderstandings that were evident in soveral statomonts and questions during the conferenco, Licensoo-Volunteered to provido additional information. Tr. 160-69. Sag also Prohearirg Conference Order (Oct. 2, 1990). On November 14, 1990, Licensoo provided the Board and parties responses to a t number of questions, portinent to plant proceduros,

• engineering ovaluations, and licensing correspondence. GANE and the NRC. Staff were afforded an opportunity to comment, and in_a talophone conference on January 22, 1991, the Board asked cortain follow-up questions. Memorandum and Order (Tolophone. conference call, 1/22/91). The NRC Staff

- responded to those questions on March 18, 1991; Licensoo responded to'those questions on March 20, 1991; and GANE filed further response comments _on April 22, 1991.

On May.15, 1991, the Licensing Board issued a Memorandum and Order-(Terminating Proceeding). Georcia Power Co.,

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(Vogtle Electric Generating Plant, Unita 1 and 2), LBP 21, 33 N.R.C. (g1[2 GD. May 15, 1991). The Board ruled that GANE had not submitted any admissible contantions. Id.

at 2. The Board found that none of GANE's contentions complied with 10 c.F.R. S 2.714. Id. at 6. The Board first observed that GANE's contentions as a whole mado no reference  ;

whatsoever to the legal authority under which the application should be judged, did not include an explanation of the contentions' bases, and did not sat forth the conciso statomont of allegod facts or export opinion which the NRC's rules require in support of contentions. Id. at 6-7. In addition, examining the individual contentions offered by GANE, the Board concluded that various contentions failed to raise a genuino dispute, and the others failed to stato a ,

claim on which roller might be granted. Id. at 8-11.

AEGUMENT A. As With The Proceeding Below, GANE Has Failed To Comply With The Commission's Requirements For Adjudicatory Proceedings. GANE's Appeal, Thorofore, should Bo Dismissed.

GANE has approached this appeal in the same manner as the procoodings before-the Atomic Safety and Licensing Board --

as an opportunity for free-ranging dialogue and voicing of concerns unfettered by procedures adopted and implemented by the commission for adjudicatory proccodings. GANE has repeatedly sought to have its procedural noncompliance 5

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excused because of its lay status, in effect displaying little regard for its obligations in a formal adjudication.

In the proceeding below, GANE ignored the pleading requirementu, and as a result its contentions were found inadmissible. In this appeal, GANE has flied no brief, and as a result its appeal, too, should be rejected.

The NRC's procedures, as set forth in the Licensing Board's Memorandum and order, expressly require an appellant to file a brief. The brief must clearly identify the errors of fact or-law that are the subject to the appeal and, for )

each issue appealed, the precise portion of the record relied upon in support of the assertion must be provided. 10 C.F.R. 5 2.762 (d) (1) . CANE has filed no document even remotely resembling a brief. No brief was filed within the thirty (30) day period provided by the Board's Memorandum and order.

And, GANE's initial filing is no substitute as it contains no specification of alleged error in the Board's ruling.

At least in the absence of a showing of extraordinary cause, an appeal will not be entertained where-the appellant falls to file its brief. Dismissal for this failure is warranted irrespective of whether the appellant is represented by counsel or DI9 E2, because fairness to other litigants and the orderly administration of the adjudicatory process precludes the waiver of so fundamental a requirement.

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I HiDainalrol Power & Light _Cg2 (Grand Gulf Nuclear Station, Units 1 and 2), ALAD-140, 6 A.E.C. 575 (1973). ,

B. GANE's Failuro To File A Brief And Iduntify Any Error In The Board's Ruling Is Projudicial.

GANE's failure to brief its appeal as required by tho commission's rules is obviously highly prejudicial to the  !

Staff and Licensee. Neither has been given notice of what GANE believes are the specific errors in the Licensing Board's ruling. As far as Licensee can discern from GANE's May 25, 1991 filing, GANE moroly wants to further discuss

-technical issues.2 Moreover, GANE does not dispute the inadequacy of its rejected contentions ("Our all-voluntoor, citizen organization's procedural shortcomings notwithstanding, we appeal to you to consider this case on the merits.") The only issue that may be appealed, however, is the correctness of the Board's determination that GANE's proffered contentions did not satisfy 10 C.F.R. S 2.714.  ;

GANE has pointed to no error in that determination.

As a result of GANE's gross deficiencies in perfecting an appeal, Licensee is-unable to do more than provide the Statement'of Case above to show that GANE was provided ample 2

The technical concerns-raised by GANE were addressed in the various answers,Jprocedures,-evaluations, and correspondenco which Licensee and the NRC Staff provided.to the Licensing Board

• and other parties. The Licensing Board was satisfied that this' ,

information " answered-all outstanding legitimate concerns."  !

' May 15, 1991 Memorandum and Order at 8.  !

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I opportunity to satisfy pleading requirements and failed to do so. Indeed, the Licensing Board made overy effort to allow GANE to cure its contentions and demonntrato the existence of a genuino issuo. But even after having been provided a wealth of information, amounting in effect to discovery in advance of the Licensing Board's ruling on contention admissibility, GANC could not show the existence of a genuino issue in disputo.

Nor should GANE be permitted to shield itself from its obligations by pleadin9 Er2 ng ignoranco. GANE has considerable experience in NRC proceedings. In participated in the Vogtle construction permit proceeding and the Vogtle operating license proceeding, and in currently pursuing a hearing on another Vogtle licenso amendment application.

Moreover, in this case, the Licensing Board's May 15, 1991 Memorandum and Order explicitly advised GANE of its briefing obligation in connection with any appeal.

C. Conclusion.

In sum, GANE's failure to file its brief and associated failure to provide the parties and the Commission with notice of any error in the Licensing Board's May 15th order mandates dismissal of the appeal. Intervonors, even nng an intervenors, have a threshold responsibility to structure their participation in adjudicatory proceedings so that it in 8

meaningful and alerts the agency to the intervencro' position and contentions, hablic Service I'lectric and QAp_Ro ca (Salem 11uclear Generating .Aation, Unit 1), ALAB-650, 14 N.R.C. 43, 50 (1981). Due procena, fundamental fairnons and agoney offectiveness require, at a minimum, the fulfillinent of theno obligations to perfect an appeal in such forinal mattora.

Respectfully submitted, Arthur 11. Domby

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TROUT!4A!1, SAllDERS, LOCKERMA11

& ASilMORE 127 Peachtree Stroot, 11. E .

Atlanta, Georgia 30303-1810 (404) 658-8000 Counsel for Georgia Power Company DATED 1 July 22, 1991 Licensces. Hot 9

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIDDION ,

DIEDAE_lilU 3DNiilD1119fERQ In the Matter of GEORGIA P014ER COMPANY, t it al. t DOCKET NOD. 50-424-OLA 50-425-OLA (Vogtle Electric Generating AOLDP NO. 90-617-03-OLA Plant, Unita 1 and 2) 9IILT.IEI.2bTE OP SIRVICE This is to cortify that copios of the within and forogoing

" Licensee's Motion to Dismiss and Briof in Opposition to ,

Appeal" were served, pro-paid to ensure propor delivery, via the United States Mail, First Class, or via redoral Express, overnight delivery, or via hand delivery, to all those listed on the attached nervice list.

This h2-day of July, 1991.

[ '

V Arthur H. Domby TROUTMAN, SANDERS, LOCKERMAN

& AS!!MORE 300 Candler Building 127 Peachtree Street, N.E.

Atlanta, Georgia 30303-1810 (404) 658-8243 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIHDION ILEIRBLTM_CDMlaDlf2FIRQ '

In the Matter of 8

GEORGIA POWER COMPANY, a 31 Rl. I DOCKET N00. 50-424-OLA

50-425-OLA 1

(Vogtle Electric Generating : ADLDP NO. 90-617-03-OLA Plant, Units 1 and 2)  :

RERVICE LIDT Administrative Judge Secretary of the Commission Charles Bochhoofer, Chairman U.S. Nuclear Rogalatory At omic Saf ety and Licensing Commission Board Panol Washington, D.C. 20555 U.S. Nuclear Regulatory ATTMt Docketing and Commission Sorvices Branch Washington, D.C. 20535 Offico of Commiscion Administrative Judge Appellato Adjudication James H. Carpenter U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Charlos Barth, Ecquire Washington, D.C. 20555 offico of Gonoral Counsel White Flint North +

Administrative Judge Stop 15B18 Emmoth A. Luobke U.S. Nuclear Regulatory 5500 Friendship Foulevard Commission Apartment 1923N Washington, D.C. 20555 Chevy Chano, Maryland 20815 Director Ms. Glenn Carroll Environmental Protection Georgians Against Nuclear Division Energy- Dept. of Natural Resources 139 Kings Highway 205 Butler Street, S.E.

Docatur, Georgia 30030 Suito 1252 Atlanta, Georgia 30334 l'

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