ML20076F005
| ML20076F005 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 05/26/1983 |
| From: | Au T PENNSYLVANIA, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20076E987 | List: |
| References | |
| NUDOCS 8306010380 | |
| Download: ML20076F005 (11) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter.of Docket Nos. 50-352 PHILADELPHIA ELECTRIC COMPANY 50-353 (Limerick Generating Station, Units 1 and 2)
Motion for Reconsideration of the Board's Ruling Concerning
" Coordination" of the Commonwealth of Pennsylvania's Contentions Introduction At the special preh'aaring conference held in Philadelphia on May 9, 10, 11, 1983, the Atomic Safety and Licensing Board announced that it would require
" coordination" of the filing of contentions, whereby counsel for the lead intervenor, Limerick Ecology Action, would be responsible for the filing of a single list of contentions, and all intervenors and interested governmental bodies, I
including the Commonwealth of Pennsylvania, would be required to submit their proposed contentions to the lead 1
intervenor for incorporation into a single document.
Subsequently, the Board issued an order requiring coor-dination.
(See Memorandum and Order confirming schedules The Board established during pre-hearing conference at 4.)
j implied that this ruling would affect the future filing of l
l contentions, as other documents become available and schedu-les are set for the filing of other contentions.
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I B306010380 830526 PDR ADOCK 05000352 G
PDR l -
a The Board asserted that the reason for this ruling was to promote efficiency and to avoid redundant conten-tions.
Understandably, the Board does not wish to sift through multiple contentions which are similar in content.
While the Commonwealth of Pennsylvania believes that proce-dural rules to expedite the proceeding are worthwhile, the Commonwealth believes there are practical and legal dif-ficulties which argue against the inclusion of the Commonwealth in this ruling, as set forth more fully below.
(The Commonwealth objected to this ruling on the record at the special prehearing conference.)
Moreover, the benefits to be derived from the inclusion of an interested state in this ruling do not outweigh the significant problems pre-sented by the ruling.
This ruling appears to be unprece-dented in Atomic Safety and Licensing Board proceedings.
For these reasons, the Commonwealth of Pennsylvania, moves this Board to reconsider its ruling.
Legal Considerations The Atomic Energy Act confers a unique status on states and local governmental units which wish to par-ticipate in proceedings before the Nuclear Reglatory Commission.
Specifically, it requires the Commission to
" afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses and advise the Commission as to the application without requiring such representatives to take a position for or against the !
granting of the application." 42 U.S.C. 52021(1).
Under the Commission's rules, an interested State may participate in a Commission proceeding and introduce evidence, interrogate witnesses, and advise the Commission without taking a posi-tion with respect to the. issues.
Such participation does not confer on the interested State the status of a " party".
See 10 CFR S2.715(c).
The Commonwealth of Pennsylvania has stated that its participation before the Atomic Safety and Licensing Board in this proceeding is pursuant to 10 CFR 52.715(c).
Although the Commonwealth may raise contentions, present witnesses, interrogate witnesses and file briefs in this proceeding, its participation should not be construed to be that of an adverse party.
It is the intent of the Commission, in adopting 10 CFR S2.715(c), to encourage such non-adversarial participation by interested states.
By contrast, the Commission's rules concerning intervention specifically require that a full party inter-venor state his interest and the aspects of the subject matter of the proceeding in which he desires to intervene.
See 10 CFR S2.714.
The Commission's rules contemplate that the Atomic Safety and Licensing Board may wish to align intervenors who have been admitted as " parties".
The Board may consolidate the " presentation of evidence, cross-examination, briefs, proposed finding of fact, and conclu-sions of law and argument."
However, this rule is limited to " parties", and only to the extent that the parties have "substantially the same interest that may -
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ba affected by tha proceeding" and to the extent that such a procedural ruling does not " prejudice the rights of any party".
The Commonwealth of Pennsylvania has two major objections to the Board's mandate to coordinate the filing of contentions with counsel for the lead intervenors, Limerick Ecology Action.
First, the Commonwealth of Pennsylvania is not a " party", and therefore is not subject
'to the Board's authority to consolidate parties.
- Second, the Board's order to " coordinate" is in essence an order to
" consolidate" since there is no practical difference between
" consolidation", as outlined in 10 CFR 52.715a and the
" coordination" of filing of contentions as explained by the Board at the special prehearing conference.
The first objection relates to the adthority of the Atomic Safety and Licensing Board to treat the Commonwealth of Pennsylvania as a " party".
The Commission rules make it plain that an interested state which par-ticipates under 10 CFR S2.715 is "not a party".
Interested l
states have a unique status before this Board, which unlike other parties, is non-adversarial.
This special status is a right conferred by the Atomic Energy Act.
To require the Commonwealth of Pennsylvania and other governmental agencies to file contentions through the lead intervenor would blur the distinction which Congress has created and the Commission has carefully preserved.
In the eyes of the.
r --i,
public, the Commonwealth would appear to endorse the conten-tions filed by others, and vice versa, regardless of the identification of any contention as a Commonwealth conten-tion.
The Commission's rule on consolidation recognizes that parties may have different interests and may be preju-diced by an order to consolidate.
For this reason, the rule states clearly that consolidation should only occur where the " parties" have substantially the same interest and where the party's rights are not prejudicial.
It should be obvious that an interested State, which is participating pursuant to 10 CFR 52.715(c) does not have the same interests as an intervenor.
The Commission has sought to preserve the non-adversarial interests of interested States.
By consolidating the filing of contentions, even for proce-dural convenience, the Board is mixing together non-adversial and adversial interests.
This procedure does not promote the public interest behind the Commission's rule, l
and will have a chilling effect on state participation in NRC proceedings.
Second, an order to " coordinate" the filing of con-tentions is similar to an order to consolidate under 10 CFR 52.715a.
An order to consolidate is a procedural order, l
intended to eliminate duplication of effort, to expedite the l
l proceedings, and to reduce the workload of the Commission.
The Commission's rule on consolidation, however, does not -
authorize an order to consolidate the filing of contentions.
By its terms, the rule presupposes that parties would be filing separate contentions, and after the contentions are admitted, the Board could enter an order for consolidation.
Such an order, however, would be predicated upon findings that the parties' interests are substantially similar and that the parties affected by the order will not be preju-diced.
(No such findings have been made by the Board in this proceeding.)
The present order to " coordinate" extends the " consolidation" process one step further to an earlier phase of the proceedings.
There is no indication in the Board's rules that such an extension is contemplated or authorized.
According to the common rule of construction, expressio unius est exclusio alterius, consolidation as to the matters not included in the Commission's rule cannot be fairly implied.
Practical Considerations As a practical matter, the Board has not given due consideration to the deliberative process which leads to the e
filing of a contention by a governmental unit.
The l
Commonwealth of Pennsylvania does not take the filing of l
contentions lightly.
Contentions that may be filed would be drafted in a slow, deliberate process.
Many levels of Commonwealth government would review and approve a conten-tion.
Only those matters which could not be resolved by
discussion and negotiation, and which are of critical impor-tance to Commonwealth responsibility would be the subject of contentions.
By requiring earlier submittal of contentions to counsel for the lead intervenor for inclusion in a joint document, the Board reduces the amount of time for Commonwealth officials to deliberate, diminishes the oppor-tunity for discussion and negotiation, and potentially requires counsel to disclose draft positions which have not been finally adopted by the Commonwealth.
Another independent concern relates to the framing of any Commonwealth contention.
The Board's order does not direct the lead intervenor simply to incorporate the Commonwealth's contentions (without editing) into a single document.
The Board's order directs the parties, including the Commonwealth, to " negotiate the language of contentions".
(Memorandum and Order at 4.)
The Board's directive at the special prehearing conference also implies that counsel for lead intervenor is authorized to edit con-tentions submitted to eliminate duplication and overlap.
Although the Commonwealth recognizes the need to proinote expeditious resolution of contentions, the Commonwealth believes that this procedure undermines the role of'an interested State in presenting issues to the board in a neutral manner.
If the Commonwealth submits con-tentions to this Board, the contentions will be carefully framed to address relevant issues.
The drafting of a con-tention, as noted above, is a deliberate process by many Commonwccith officicle.
The Board, by its order, has authorized another party the right to " edit" the Commonwealth's contentions and has required the Commonwealth to " negotiate" contentions to fit into a unified list of contentions.
The Commonwealth finds this procedure repugnant.
Although unintended, this procedure undermides the role of State participation under 10 CFR S2.715(c). This
" coordination" procedure is unprecedented in Commission hearings and appears to infringe upon the separate status of state participation provided by the Atomic Energy Act.
For the foregoing reasons, the Commonwealth of Pennsylvania urges the Board to reconsider its order of May 16, 1983, and to exclude governmental units from the purview of its " coordination" procedure.
Respectfully submitted,
,:,. h.
E Thomas Y. Au
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Assistant Counsel Dept. of Environmental Resources Counsel for the Commonwealth of Pennsylvania May 26, 1983
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WITED STATES OF AMERICA NUCIEAR REGGRORY (XMIISSIm BEFORE TIE ATWIC SAFEIY AND LICENSING BOARD In the Matter of:
PHIIADELPHIA ELECIRIC OWPANY Docket Nos. 50-352 (Limerick Generating Station, 50-353 thits 1 and 2) uuumCATE OF SERVICE I hereby certify that the foregoing Motion was served by mail on the parties on the attached service list, mailed on May 26, 1983.
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TH WAS Y. AU Assistant Counsel Conmonwealth of Pennsylvania m-y
UNITED STATES OF AMERICA NUCLEAR REGULATORY C0t4ISSICN BEFORE THE ATQfIC SA EIT AND LICENSING BOARD In the Matter of:
PHILADELPHIA ELECIRIC COiPANY Docket Nos. 50-352 (Limerick Generating Station, 50-353 Units 1 and 2)
SERVICE LIST Mministrative Judge Lawrence Brenner (2)
Troy B. Cmner, Jr., Esquire Atomic Safety & Licensing Board Cannor and Wetterhahn U.S. Nuclear Regulatory Caneission 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20555 Washington, D.C.
20006 Administrative Judge Richard F. Cole Marvin I. Iewis Atomic Safety & Licensing Board 6504 Bradford Terrace U.S. Nuclear Regulatory Conmission Philadelphia, Pennsylvania 19149 Washington, D.C.
20555 Dr. Judith H. Johnsrud, Co-Director Administrative Judge Peter A. Morris Fnvirmmental Coalition on Nuclear Power Atomic Safety & Licensing Board 433 Orlando Avenue U.S. Nuclear Regulatory Cmmission State College, Pennsylvania 16801 Washington, D.C.
20555 Robert L. Anthony Docketing and Service Section (3) 103 Vernon Lane Office of the Secretary Moylan, Pennsylvania 19065 U.S. Nuclear Regulatory Ccmnission Washington, D.C.
20555 Judith A. Dorsey, Esquire Limerick Ecology Action Atomic Safety & Licensing Board Panel Suite 1632, 1315 Walnut Street U.S. Nuclear Regulatory Cannission Philadelphia, Pennsylvania 19107 l
Washington, D.C.
20555 l
Dmald S. Brcnstein, Esquire Atcxnic Safety & Licensing Appeal Panel 1425 Walnut Street, Third Floor U.S. Nuclear Regulatory Cmmission Philadelphia, Pennsylvania 19102 Washington, D.C.
20555 Joseph H. White, III Stephen H. Iawis 8 North Warner Avenue Staff Office of the Executive Iagal Director Bryn Mawr, Pennsylvania 19010 U.S. Nuclear Regulatory Commission Washingtcn, D.C.
20555 Stephen P. Hershey, Esquire Ccmuunity Legal Services, Inc.
Frank R. Romano Law Center North Central, Beury Bldg.
61 Forest Avenue 3701 North Broad Street Anbler, Pennsylvania 19002 Philadelphia, Pennsylvania 19140 Edward G. Bauer, Jr.
Jacqueline I. Ruttenberg Vice-President & General Counsel Keystone Alliance Philadelphia Electric Coupany 3700 Chestnut Street 2301 Mar<et Street Philadelphia, Pennsylvania 19104 Philadelphia, Pennsylvania 19101
Robert J. Sugarman, Esquire Thomas Gerusky, Director Sugarman and Denworth Bureau of Radiation Protection, DER Suite 510, North American Building P.O. Box 2357 121 South Broad Street Harrisburg, Pennsylvania 17120 Philadelphia, Pennsylvania 19107 Charles W. Elliott, Esq.
David Wersan, Esquire Brose and Poswistilo As:istant Consumer Advocata 1101 Building Office of Attorney General lith & Northartpton Streets 1425 Strawberry Square Easten, Pennsylvania 18042 Harrisburg, Pennsylvania 17120 Martha Bush, Deputy City Solicitor Director Municipal Services Building Pennsylvania Emergency Management Agency 15th & JFK Boulevard B-151 Transportation & Safety Building Philadelphia, Pennsylvania 19107 Harrisburg, Pennsylvania 17120 James M. Neill, Esq.
Kathryn S. Isis Associate Counsel for Del-Aware 1234 Market Street, 4th Floor Box 217 Im Department Plumsteadville, Pennsylvania 18949 Philadelphia, Pennsylvania 19107
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