ML20077R419

Nuclear Regulatory Commission Issuances.January 1983. Pp 1-67

ML20077R419
Person / Time
Issue date:	01/31/1983
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V17-N01, NUREG-750, NUREG-750-V17-N1, NUDOCS 8309200441
Download: ML20077R419 (72)

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Available from NRC/GPO Sales Program Superintendent of Documents Govemment Printing Office Washington, D.C. 20402 A year's subocription consists of 12 softbound issues, 4 indexes, and 2 hardbound editions for this publication.

Single copies of this publication are available from National Technical information Gervice, Springfield, VA 22161 Microfiche of single copies are available from NRC/GPO Sales Program Washington, D.C. 20555 l

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Errors in this publication may be reported to Vickl E. Yanez, Divis!on l

Technical Information and Document Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925)

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NUREG-0750 Vol.17, No.1 Pages 1-67

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i NUCLEAR REGULATORY I

COMMISSION ISSUANCES January 1983 1

This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal j

Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance.

U S. NUCLEAR REGULATORY COMMISSION

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Prepared by the Division of Technical Information and Document Control, 4fice of Administrat:on, U.S. Nuclear Regulatory Commission, Wachington, D.C. 20555 (301/492-8925) l-

I COMMISSIONERS E

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Victor Gliinsky " ' Chairman John F Thomas. Aheame M. Roy,,,,

• mes K. Asselstine l

B. Paul Cotter, Chairman Ato iA m c Safety and Uc c

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CONTENTS

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Issuances of the Nuclear Regulatory Commission UNITED STATES DEPARTMENT OF ENERGY PROJECT M ANAGEMENT CORPORATION TENNESSEE VALLEY AUTHORITY (Clinch River Breeder Reactor Plant)

Docket 50-537 (10 CFR 50.12 Exemption Request)

MEMORANDUM AND ORDER, CLI-83-1, January 5,1983 I

t Issuances of the Atomic Safety and Licensing Appeal Boards SOUTH CAROLINA ELECTRIC & GAS COMPANY, et al.

(Virgil C. Summer Nuclear Station, Unit l}

Docket 50-395-OL DECISION, ALAB-710 January 13,1983.

25 TENNESSEE VALLEY AUTHORITY (Browns Ferry Nuclear Plant, Units I,2 and 3)

Dockets 50-259-OL,50-260-OL,50-296-OL DECISION, ALAB-711 January 21,1983.

30 THE DETROIT EDISON COMPANY, et al.

(Enrico Fermi Atomic Power Plant, Unit 2)

Docket 50-341-OL MEMORANDUM AND ORDER, ALAB-709, January 4, d3 17 issuances of the Atomic Safety and Licensing Boards CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

l (Perry Nuclear Power Plant, Units I & 2) l Dockets 50-440-OL,50-441-OL (ASLBP No. 81-457-04-OL) l MEMORANDUM AND ORDER, LBP-83-3, January 28,1983 59 e

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CONSOLIDATED EDISON COMPANY OF NEW YORK (Indian Point, Unit No. 2)

Docket 50-247-SP MEMORANDUM AND ORDER, LBP-83-1, G

33 January 7,1983 PACIFIC GAS AND ELECTRIC COMPANY E

(Stani:laus Nuclear Project Unit 1)

Docket P-564 A (ASLBP No. 76-334-07 AN)

MEMORANDUM AND ORDER, LBP-83-2, 45 January 19, 1983 POWER AUTHORITY OF THE STATE OF NEW YORK (Indian P..nt, Unit No. 3)

Docket 50-286-SP MEMORANDUM AND ORDER LBP-83-1, 33 January 7,1983 IV 9

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CLI-83-1

-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Nunzio J. Palladino, Chairman Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine in the Matter of Docket No. 50-537 (10 CFR 50.12 Exemption Request)

UNITED STATES DEPARTMENT OF ENERGY PROJECT MANAGEMENT CORPORATION TENNESSEE VALLEY AUTHORITY (Clinch River Breeder Reactor Plant)

January 5,1983 The Commission clarifies and affirms its previous finding (CLI-82-23,16 NRC 412 (1982)) of exigent and other extraordinary circumstances warranting the grant of the Department of Energy's request for an exemption pursuant to 10 CFR 550.12 for initiation of site preparation activities in connection with the Clinch River facility.

REGULATIONS: EXEMPTIONS (EARLY SITE PREPARATION)

The availability of an exemption pursuant to 10 CFR s50.12 for the initiation of site preparation activities is determined by w hether, in totality of the circumstances in a particular case, exigent circumstances exist. weighed against the adverse environmental impacts associated with the proposed aci.vities under the exemp-tion.

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REGULATIONS: EXEMPTIONS (EARLY PREPARATION)

The timely satisfaction of public needs by reducing unanticipated delays in the realization of facility benefits and the avoidance of costs induced by such unex-pected delays constitute exigent circumstances supporting the grant of an exemp-O tion under 10 CFR 550.12 for the conduct of pre-construction site preparation activities.

REGULATIONS: EXEMPTIONS (EARLY SITE PREPARATION)

In determining whether to grant an exemption pursuant to 10 CFR 650.12 to begin site preparation activities. the Commission will weigh the exigencies of the T'

situation against the associated adverse environmental impacts. Where the en-vironmentalimpacts of the proposed activities are insignificant, but the potential adverse consequences of delay may be severe and an exemption w ill mitigate those effects, it is reasonable to grant the exemption in spite of uncertainties as to the exigencies of the particular situation.

MEMORANDUM AND ORDER This decision clarifies the Nuclear Regulatory Commission's previous findings of exigent and other extraordinary circumstances warranting the grant of an exemption pursuant to 10 CFR 50.12 for initiation of site preparation activities for the Clinch River Breeder Reactor ("CRBR"). United States Department of Ener-gy, et al. (Clinch River Breeder Reactor Plant), CLI.82-23,16 NRC 412 (1982).'

The need for this clarification arose in the following way. On July 1,1982. the Department of Energy, for itself and on behalf of its co-applicants the Tennessee Valley Authority and Project Management Corporation (" Applicants"), applied to the Nuclear Regulatory Commission ("NRC" or " Commission") for an exemption pursuant to 10 CFR 50.12 to begin site preparation activities for the CR BR. In their I Commission precedent uses both the terms"etigent" and " extraordinary" to characterire the circum stances under which an exemption may be granied. The term "extraordmary" is used m Louiseana Power and Light Company (Waterford Generanng Stanon. Unit 3). CLI-73-25,6 AEC 619. 622 n (1973) and Carolma Power and Lsght Company (Shearon Hams Nuclear Pow er Plant. Units 1. 2 4). CLI-74-9. 7 AEC 197,198 (1974) ("Shearon Hams I"). The term "cugent" is used only m Washmgron Public Power Supply System (WPPSS Nuclear Project Nos. 3 and S p. CLI-77 1 t.

719,723 (1977). The Commisur f..as also characterized the requisite circumstances as compelhn Carolma Power and Light Compan3 (Shearon Hams Nuclear Power Plant. Units 1. 2. 3 and 4i.

CLI 74-22. 7 AEC 939. 940 f l 974). and as "w here the facts so w arrant.~ 37 F ed Reg. 5745 ( M:rc 1972). An analysis of these Commission precedents show s that, contrary to the Intervenors'siew Commisuon has not hmited exempnon to cases invohmg emergencies. although " exigent" circum-stances of that nature can provide adequate grounds for an exempnor.

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O application, Applicants identified three factors which they believed demonstrated the exigent circumstances sufficient to warrant the grant of an exemption. These were: (I) national policies favoring expeditious completion of CRBR;(2) undue hardship that would result from further delay in the project then at an advanced stage of development; and (3) the project's unique nature. The Natural Resources Defense Council, Inc. and the Sierra Club ("Intervenors") opposed the grant of an exemption. After conducting an informal proceeding, the Commission issued an exemption on August 17,1982. CLI-82-23,16 NRC 412 (1982). In its decision, the Commission found that extraordinary circumstances had been demonstrated by most of the factors identified by the Applicants as demonstrating exigent circum-stances.16 NRC 425-26,433-34, and additional views of Commissioner Assel-stine at 436. On December 7,1982, the United States Court of Appeals for the District of Columbia Circuit (" Court") remanded the record to the Commission to either proceed with its adjudicatory hearing under 10 CFR 50.10 to determine if site preparation activities may continue, or to explain w hy it was appropriate in this case to invoke 10 CFR 50.12 by identifying exigent circumstances that w arranted such relicf. NRDC v. NRC, 695 F.2d 623 (D.C. Cir.1982). The Commission, by Order of December 1 1982, responded by initiating a proceeding on the issue of exigent circumstarras while also explicitly recognizing that an Atomic Safety and Licensing Board was in the final stages of an adjudicatory proceeding on site preparation activities. For the reasons discussed below, the Commission reaffirms its earlier finding of circumstances warranting an exemption pursuant to 10 CFR 50.12.

I.

Tile LEGAL STANDARD Commission precedent on the grant of exemptions under 10 CFR 50.12, w hile not exhausting the situations in which the Commission may find " exigent circum-stances,"2 does provide some illustrations of exigent circumstances, and estab-lishes that the availability of an exemption is determined by the totality of the particular circumstances in each case. A review of Commission precedent follow s to provide the framework for the Commission's decision in this case.

2 Intervenors suggest that the term " exigent circumstances"is hmited to the dictionary definition as circumstaie es "requinng immediate aid or acton." While the dictionary definition of a term is helpful to understanding its general use, the dictionary n not to be used es a " fortress"in meerpreting the scope of a term in a partscular legal content. Farmers Reserwur and irrugarwn Compans s. Afdomb. 337 U.S. 755. N (1948L reheanng denied. 338 U.S. 839 (1948L Rather the use cf a term is to be determined by also considenng its purpose and history. Str. Perrin v. Untred Stairs. 444 U.S. 37 42-45 (1979L Intervenors' sole rehance on the dictionary definition of the term cuFent" ignores the purpose and history of that term. That rehance igrwres the history of the Commissum's uw of the term and fails to acknowledge other dictionary definitions of the term, such as "requinng a great dealJ Random House Dictionarv of the Enghsh longinare. Unabndged Edition. 499 C 3 < 1966i. In any event. it is sufficient for the grant of this exemption to note that the circumstances here marranted prompt action and satisfied the Comnusuon's high threshold for unusual rehef.

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Where an exemption is c. quested for pre-construction site-preparation activi-ties, the kind of showing which will satisfy the Commission's criteria for an exemption pursuant to 10 CFR $0.12 is illustrated by the Commission's decision in Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units G

I, 2, 3 and 4), CL1-74-22,7 AEC 938 (1974). ("Shearon Harris 11").5 in that proceeding the applicant requested an exemption to harvest timber on the site, clear and grade the site, excavate for the plant foundation, construct roads, relocate railroad tracks, and construct temporary facilities including a warehouse and concrete plant. Id. at 941, 'These are just the kinds of activities initiated at the CRBR site. The Commission affirmed the grant of the exemption for Shearon Harris # on the basis of findings of benefits to the public interest that would result from the earlier completion of the proposed site preparation activities. Id. at 944.

Because earlier completion of site preparation activities would result in earlier completion of the facility, the grant of the exemption reduced by six months the previously unanticipated delay in the provision of needed electric power and resulted in the savings of over $100 million dollars in costs that would not have been incurred but for the delay caused by changes in requirements. /d. at 941, n.4.

Tnus, Shearon Harris # stands for the proposition that the timely satisfaction of public needs by reducing unanticipated delays in the realization of facility benefits and the avoidance of costs induced by such unexpected delays constitute exigent circumstances supporting the grant of an exemption. Such benefits are also presented by the CRBR exemption.

Shearon Harris # also illustrates that the Commission considers the pecuhar circumstances leading to the situation requiring relief. Such considerations are intrinsic to the nature of an exemption, i.e., the need for unusual relief from a rule due to a situation not contemplated when that rule was promulgated. In Shearon Harris #, the peculiar circumstances creating the need for relief were externally induced delays in construction due to changes in government pohey. Here, as there, further delay could result in the loss of significant benefits to the public, as described in detail below. And here, as there, delay was caused by changes in government policy. Thus, the circumstances leading up to the Applicants' reques for an exemption for CRBR are consistent with Commission practice as estab-lished in Shearon Harris H.

3 2ntervenors wgest that Shraron Harris 11 does not deserve any precedential weight because it w as

> the Commission *syromulgation of 10 CFR 50.10le) w hich estabinhed the proced decided pno-for a hmned

• d authorization (LWA). But the facts in Shearon Harris show that the availabihty of an LWA would have been irrelevant. In Shearon Harrrs. delay w as caused by changes in requirements the Environmental Protection Agency. The availabihty of an LWA would not hase mitigated the delay resulting from complyinF with those new requirements nor would it have affected the Commis findmg that six months' delay w as significant. Therefore, the Commnsion finds that Sheare retams its vitahty as a precedent for considenng whether to grant an exemption pursuant to 10 50 12.

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De Commission also granted an exemption in GulfStates Utilities Company (River Bend Station, Units I and 2), CLI-76-16,4 NRC 449 (1976) (" River Bend"). His decision illustrates that the showing of exigency supporting an exemption varies directly with the environmental impacts of the proposed activi-ties. His principle is reasonable in light of the nature of the exemption: the conduct of site preparation activities prior to an adjudicatory hearing on those activities. Where the staff's detailed evaluation of the proposed activities have shown them to have insignificant environmental impacts, the conduct of those act:vities prior to a hearing does not significantly increase the risk to the environ-ment from an error in estimating those impacts. Thus, where site preparation activities have insignificant impacts, it is reasonable to permit those activities to proceed even when the exigencies of the panicular situation are somewhat uncer-tain, i.e., the agency can act more readily to mitigate the costs of unanticipated delay when the environmental risk of prompt action is small.

In River Bend, the Commission did not specify the exigent circumstances. It only noted that the proposed activities would not present adverse environmental impacts, might serve to protect the site environment and would be consistent with any possible outcome of the proceedings below. These factors, in addition to the temporary unavailability of a limited work authorization (LWA) under 10 CFR 50.10(c)(1), were found to constitute a sufficie: t basis for issuing the exemption.

In CRBR, the Commission also found that su' preparation would not cause significant environmental impacts and that site improvements would be consistent with any future use of the site because it was zoned for industrial development.

Maryland-National Capital Park and Planning Commission v. Postal Service.

487 F.2d 1029,1036-37 (D.C. Cir.1973). As in RiverBend, these findings weigh against any uncenainties in the exigency of the circumstances.

In Kansas Gas and Electric Company, et al. (Wo1f Creek Generating Station, Unit 1), CLI 76-20,4 NRC 476 (1976)(" Wolf Creek") and in Washington Public Power Supply System (WPPSS Ncclear Project Nos. 3 and 5), CLI-77-11,5 NRC 719 (1977) ("WPPSS"), the Commission rejected requests for exemptions because changed circumstances vitiated each licensee's claim of exigent circumstances. In WolfCreek, the applicants appear to have relied solely on the temporary unavaila-bility of an LWA as their basis for a showing of exigent circumstances. Since the Commission bad already reinstated the availability of the LWA procedure, its previous unavailability no longer provided a basis for claiming exigent circum-stances. Thus, Wolf Creek appears to stand for the proposition that an exemption will nct be granted where changed circumstances have vitiated a licensee's claim of exigent circumstances.

In WPPSS, the applicant war.ted to commence site preparation during the advantageous dry season and to avoid additional costs for storing equipment that had been ordered. The applicant was also concemed that it could not foresee when an Atomic Safety and Licensing Board (" Licensing Board") would act on a 5

pending request for a Limited Work Authorization (LWA). Simultaneous with its request for an exemption from the Commission, the app'icant requested the Licensing Board for permission to undertake some of the same proposed activities on the basis that they were not precluded by 10 CFR 50.10(c) because those G

activities would not significantly affect the environment. The Licensing Board l

granted that request in part, thus allowing site preparation to begin. This develop-I ment, plus the apparent imminence of a decision on the pending LWA request, led the Commission to reject the exemption request because time was no longer of the essence and relief from the Licensing Board was neither impossible nor highly unlikely. ld. at 723. Thus, WPPSS. like WolfCreek, stands for the proposition that

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the Commission will not grant an exemption when changed circumstances vitiate the base for requesting that exemption. In CRBR, by comparison, relief from the Licensing Board was not imminent, and time was of the essence for the reasons l

discussed below.

f In summary then, under Commission case law the Commission considers the totality of the circumstances in determining whether to grant an exemption, and I

evaluates the exigency of the circumstances in that overall determi...nion. Exigent circumstances have been found where: (1) further delay would deny the public of currently needed benefits that would have been provided by timely completion of the facility but were delayed due to external factors, and would also result in l

additional otherwise avoidable costs; and (2) no alternative relief has been granted

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(in part) or is imminent. Moreover, the Commission will weigh the exigent circumstances offered to justify an exemption against the adverse environmental impacts associated with the proposed activities. Where the environmental impacts of the proposed activities are insignificant, but the potential adverse consequences of delay may be severe and an exemption will mitigate the e!!ects of that delay, the case is strong for granting an exemption that will preserve the option of realizing those benefits in spite of uncertainties in the need for prompt action. For the reasor.s discussed below, the Commission believes that the Applicants' exemption request for Clinch River satisfied the Commission's criteria for an exemption under 10 CFR 50.12.

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II. THE EXIGENT CIRCUMSTANCES WARRANTING AN

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EXEMITION FOR THE CLINCH RIVER BREEDER REACTOR The Commission's decision of August 17,1982 described and discussed several circumstances which the Commission found persuasive as justification for request for an exemption to initiate site preparation activities for CRBR. CLI-82-23,16 NRC 425-33. These circumstances are (1) the potential loss of a significant part of the public's investment in CRBR;(2) the possibility of an irreversible foreclosure of the opportunity to transfer information from CRBR to the follow-on projects in the overall program for developing the liquid metal fast breeder reactor (LM FBR);

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O and (3) the probability of jeopardizing the establishment of cooperative agree-ments with the nuclear industry and other countries for development of the LMFBR. The Commission also found that the national policy favoring expeditious completion of CRBR created a need for prompt relief. On reconsideration, the 3-Commission continues to find that these circumstances, in conjunction with the Commission's finding that the environmental impacts of site preparation will be insignificant, constitute, in the totality of the circumstances, a showing of ex-igence sufficient for granting an exemption pursuant to 10 CFR 50.12. Moreover, recent developments reinforce the correctness of the Commission's decision. A recapitulatica of the circumstances previously identified by the Commission and the effects of recent developments follow.

A.

Further Delay Would Deny the Public of Benefits to Be Realized by Prompt Completion of the Facility Delay in CRBR was caused by the previous Jdministration's successful suspen-sion of the licensing proceeding. The magnit ide of that delay was significant becaus - it partially desynchronized CRBR from the rest of the LMFBR program.

The Commission found that CRBR had reached such an advanced state of develop-ment that important anticipated benefits could now be realized only by prompt initiation of site preparation activities. CLI-82-23,16 NRC 431-33. At the time of the Commission's decision, more than $600 million of rts and hardware were either delivered or on order and the project design was 90% completed; funher progress on the project required the initiation of site preparation activities. More-over, the Commission was informed by the Applicants that the LMFBR Base Research and Development Program, the Large Development Plant, and the LMFBR Fuel Cycle Program had progressed to the stages where future progress could be delayed by any funher delay in the information expected from CRER.

Under these circumstances, the Commission found that the grant of an exemption

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would funher the public interest. Any further delay in site preparation activities would result in funher delay of the safety-related construction information w hich could be more useful to the follow-on projects in the LMFBR program if obtained early enough to allow changes to be made in that program. Thus, funher delay could irretrievably foreclose the opponunity to obtain information from CRBR carly enough to be useful to the rest of the LMFBR program. Under these circumstances, time was of the ess nce in order to presette the option of effective transferability of information.

The Commission also determined that the public could lose its investment in the cadre of technically trained personnel who might otherwise drift away to other more active engineering projects. Such a diffusion of talent would funher delay CRBR and also delay the remainder of the LMFBR program by depriving it of the experience developed by that cadre. liere, again, prompt Commission action was 7

i necessary to avoid tha adverse impacts on the public interest that could result from such potential losses.

The Commission also found that further delay could result in costs of $28 I

million per year.16 NRC 432. While it is true that the acceleration of any project 9

could reduce its total cost, in this case the savings that can be realized are not due to the compression of a previously established schedule, but rather result from avoiding additional unexpected costs arising from unanticipated delays. The mitigation of such adverse consequences of unfereseen delay is the very kind of relief an exemption is designed to provide. See Shearon Harris #.

Finally, the Commissi sn also found that delays in CRBR could jeopardize the establishment of cooperatise agreements for developing LMFBRs in conjunction with the nuclear industry and potential foreign competitors.' The potential for irretrievably losing such opportunities for cooperation also required prompt Com-i I

mission action.

All these factors show that time was of the essence in granting an exemption and l

nothing has occurred since then to significantly change that determination.

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National PoIIcy Favors Expeditious Completion of CRBR The Commission found that the Congress, the President and the Department of l

Energy had all determined that CRBR should be completed as expeditiously as l

possible. These findings were based on the legislative history of the Omnibus Budget Reconciliation Act of 1981, the President's October 8.1981 policy statement directing government agencies to proceed with breeder reactor technol-ogy, and the Department of Energy's Record of Decision for the LMFBR Pro-gram. CL1-82-23,16 NRC 429-31. In particular, the Commission stated:

the legislative history of the Omnibus Budget Reconciliation Act of 1981 clearly indicates a national policy that all federal agencies should exercise their discretion to enable CRBR to be completed in a " timely and ex-peditious manner" so as to recoup some of the time lost since 1977. While this Congressional intent may not rise to the level of a mandate that compels the grant of the exemption, the Commission believes it is one 4 Recent developments lend support to the Commisuon's belief that international cooperation is an l

important element of any pubhc interest determination. A nuclear trade publication recentfy reponed l

that the Office of Managernent and Budget had approved the Department of Energy's budget request for 515 million for an international cooperatne design effort for a commercial. sized LMFB R. the next step in the LMFBR prograns. Moreover. foreign support for such cooperation w as prosided by two recent actions: tl) the Secretary of Energy for the Umted Kingdom in a policy statement to the House of Commons urged international cooperation in LMFBR development. and (2) representatnes of the Versailles Summit countnes at a Washmgton meetmg at the Of fice of Science and Technology Pohc) strongly supported meernational cooperation in Breeder developrnent Inside Energt Wuh federal Lands. 7 tDecember 6.1982L The French and Germans hase alw proposed intern.nuonal cooperation l

based in part on Amencan pursuit of CRBR.127 Cong Rec. H. 9736. c. I tDaily Edition. Decemtvr

14. 1982).

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important factor to consider that argues strongly in favor of the exemption.

CL1-82-23 at 431.

Recent developments have reaffirmed this factor. On two recent occasions Congress has continued funding for CRBR after explicitly considering the Com-mission's grant of the exemption authorizing the initiation of site preparation activi:'es. H.J. Res. 599 (October,1982)(first continuing resolution) and H.J.

Res. 630 (December,1982)(second continring resolution). And the Conference Report for the second continuing resolution provided that " Ongoing activities related to the NRC licensing process should be continued." 128 Cong. Rec. H.

10636, c. 3 (Daily Edition, December 20,1982). Other provisions in the Confer-ence Report regarding private industry's share of the costs do not affect timing of the project and neither does the limit on the construction of permanent facilities which was not due to begin before the period of the continuing resolution expires.5 The Commission agrees with the Intervenors' position that reconsideration of the exemption should recognize the factual situation as it now exists. Post-exemption Congressional actions cannot retroactively modify the Commission's finding of exigent circumstances at the time an exemption was granted. Thus, recent Congressional actions are not relevant to w hether an exemption should have been granted in August,1982, but rather, only to w hether the exemption should now be revcked. There is nothing in Congress' continuation of funding for CRB R, or in the Conference Report for the second continuing resolution, which suggests that Congress intended a revocation of the exemption or a halt to ongoing site preparation activities. Contrary to Intervenors' suggestion that Congress was reacting against accelerating CRBR, the Commission believes that Congress indicated that there should be no deceleration of CRBR by revoking the exemp-tion.

C.

Alternative Relief flad Neither Been Granted nor Was Imminent Applicants requested an exemption because no other avenue of relief was available to permit prompt initiation of site preparation activities. Even in-tervenors acknowledged that the re-str.ted LWA proceeding would not be con-cluded for several months.6 Where alternative reliefis unavailable, a condition for an exemption has been met. Shearon Harris H, supra: River Bend, supra.

Compare, Wolf Creek, supra, and WPPSS, supra. And the delay that w ould have 5 As for the erosion of Congressional support for CRBR. Intervenors presented the same arFument to the Commmion before it granted the exernption The fact remains that this Congress has continued fundmg for CRBR and that the next Congress has not had an opportumty to espress its position o issue.

• Expenence has borne out this predictim. The Licensing Board conducting the LW A proceeding expected to issue its initial decision before mid February 1983 at the earliest about 6 montns a Commisuon authonted the exemption-9

been occasioned by waiting for a decision on an LWA was of at least the same magnitude as found to be significant in Shearon Harris ll. Accordingly, the Commission found that exigent circumstances were presented by the unavailabil-ity of alternative prompt relief.

O Intervenors appear to suggest that an exemption is no longer warranted because the Licensing Board for the CRBR adjudicatory proceeding is scheduled to issue an LWA-l decision by mid-February and, assuming that the decision is favorable, the Commission could shorten its almost three-month period for reviewing that decision before making it effective. Thus, Intervenors believe that only a few months' delay would result from revoking the exemption. However, there has been no showing that the factors which supported an exemption have been modified so as to now warrant such a delay. Moreover, it is not the imminence of the LWA-1 decision that reduces the potential for delay but rather the work done by Applicants to date that decreases the impact of delay if the Commission were now to revoke the exemption. The public interest in the expeditious completion of the CRBR project remains unabated. Thus, there is no warrant for the Commission to revoke the exemption now.

III. CONCLUSION For the reasons discussed above, the Commission finds that the factors previ-ously identified in Commission decisions as relevant to a request for an exemption to initiate site preparation activities pursuant to 10 CFR 50.12 are present in this case and include exigent circumstances as that term has been construed in Com-mission practice. Moreover, the Commission finds that recent developments continue to support the grant of that exemption. Therefore, the Commission affirms its previous decision that Applicants had der,onstrated exigent circum-stances warranting an exemption for CRBR.

Commissioners Gilinsky and Ahearne dissent from this Order and their dissent-ing views are attached. Also attached are Commissioner Roberts' additional views.

It is so ORDERED.

For the Commission t

SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.,

this 5th day of January,1983.

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ADDITIONAL VIEW OF C051511SSIONER ROBERTS Applicants requested and the Commission granted an exemption from the requirements of Section 50.10 of the Commission's regulations. Section 50.10 states that site preparation activities may not commence until (1) a final Environ-mental Impact Statement has been issued, (2) a hearing has been held and all enviror;nental findings required by NRC's regulations have been made, and (3) a licensing board has found the site suitable from a radiological health and safety standpoint. This part of Section 50.10 was promulgated by the Commission in order to fulfill its statutory duties under the National Environmental Policy Act (NEPA). That Act imposed on the Commission the duty to consider environmental values when making a licensing decision and to prepare and circulate an environ-mental impact statement if the Commission determined that the licensing action it authorized would significantly affect the environment. In contrast to the require-ments of Section 50.10 NEPA does not require that an agency conduct an adjudicatory hearing in order to consider environmental values when making a decision nor does NEPA require an agency's environmental findings to be tested in an adjudicatory hearing ' Thus, the exemption requested by Applicants is not from the requirements of NEPA but rather from NRC's regulations requiring an adjudicatory hearing prior to commencement of site preparation.

When a regulatory agency imposes rules which must be iollowed by many applicants in order to receive permission to conduct particuiar activities, the agency should attempt to adopt a process which can be uniformly and fairly applied. Because all apphcants for regulatory permission will not be similarly situated, however, it is inevitable that some applicants will require a variance or exemption from the literal application of the rules in order to avoid unnecessary hardship. Administrative agencies have the inherent authority to apply their regulations in such a way as to avoid undue hardship. NationalBroadcasting Co.

v. United States. 319 U.S.190,225 (1943). The Commission explicitly recog-nized this responsibility at the time it adopted Section 50.12. The Commission l

I specifically noted:

[T]he Commission realizes that in individual cases, particularly those

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instances where plants are in an advanced stage of deselopment, but where no site preparation work has been started, undue hardship may be incurred.

In those situations, relief may be sought by requesting a specific exemption under Section 50.12.

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l 3 At a pubhc meeting on the exemption request. Counsel for Intervenws admitted this by stating. "I must say. I do not think the National Environmental Pohey Act requires an adjudicator) heanng."

Transcript, December 16.1981. at 41.

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37 Fed. Reg. 5746 (March 21,1972). Similarly, in Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units I,2,3 and 4) CL1-74-22,7 AEC 939,944 (1974), the Commission stated:

[Ulnder our present regulations there is no blanket permission to perform site-preparation work. To the contrary, an authorization to do such work under the regulations is the exception rather than the rule.

It is manifestly m the public interest to have such an exception or exemption.

See United States v. Allegheny-Ludlum Steel Corp. 406 U.S. 742,155 (1972); Permian Basin Area Rate Cases 390 U.S. 747,784-87 (1968h WAIT Radio v. FCC, 418 F.2d 1153,1159 (D.C. Cir.1969). This is true especially where, as here, benefits to the public will result from the site-preparation work that Carolina Power performs.

In 1977. Applicants were well along in the process of acquiring a limited work authorization (LWA) under Section 50.10. The staff had completed both its site suitability review and its environmental review. The staff's Site Suitability Re-port, issued in February 1977, concluded that the site was suitable for a reactor of the general size and type as the Clinch River Breeder Reactor (CRBR). The staff's Final Environmental Statement, issued in March 1977, concluded that the action called for under NEPA was construction of the CRBR. The Licensing Board assigned to conduct adjudicatory hearings on the reactor had set June 14,1977, as the first day of the hearings. As a matter of policy, however, on April 20,1977.

President Caner announced the decision to cancel the project. Despite this an-nouncement, Congress continued to fund design, research and development, and procurement activities for the CRBR. On October 8,1981, President Reagan announced that it was once more national policy to complete CRBR as an essential element of our preparednes., for longer-term nuclear power needs.17 WeeAly Compilation of Presidential Documents, Il01-0) (198I).

At the time the Commission acted on Applicants' exemption request, the plant's design was 90% complete. Due to this advanced stage of deve' pment, site preparation was a critical path element for the CRBR project. S e preparation

' could not later be combined with safety-related construction in order to avoid further delays. Further, Applicants had had difficulty in maintaining a qualified and experienced technical cadre of personnel to work on the project during the delay. It believed that grant of an exemption would prevent furtherloss of technical personnel.

Additionally, more than $500 million of parts and hardware had been delivered to the site or was on order. Additional delay would prevent timely transfer of information to the other phases of the liquid metal fast breeder reactor program, especially the Large Development Plant. Finally, all parties agreed that at least $20 million per ycar on a present worth basis could be saved by the prevention of further delay. In light of these exigent circumstances, the Commission took the only responsible action available to it and granted the exemption request.

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Intervenors allege that this action was improper because the circumstances on which the Comminion relied in granting the exemption were not citigent. To elaborate further, intervenors awert that the unique nature of the CRBR project is irrelevant (Intervenors' Brief at 8), that the Cemmission's reliance on national policy considerations was unjustified (/d. at 9), that work on this project w ould go forward absent Section 50.12 relief (/d. at 12), that Applicants have not prosen that personn:i might leave the project in the face of continued delay (/d. at 13). that the desirability of achieving " hypothetical" future increases in program cificiency does not constitute an exigent circumstance today (/d. at 15-16). and that the international policy considerations asserted by Applicants are becoming less compelling (/d. at 18). These arguments hardly constitute a compelling or even persuasive attack on the Commiwion's grant of an citemption. Morcoser. it the Commission is not to take into account international and national policy considera-tions, the history of the reactor in question, its relationship to an oserall fast breeder reactor program, and the fact that more efficient use of resources can be made by the Federal Government, it is difficult to conceive of the circumstances under which the Commission might grant an exemption. Indeed under in-tervenors' interpretation of the CommiwionN cases. every grant of an exemption by the Commission has been improper. While the standard which must be met to permit grant of an citemption is high, it is not that high.

Intervenors would have preferred that the Commiwion provide them with an adjudicatory hearing prior to the commencement of site preparation. As a matter of legcl theory, it is unclear why an adjudicatory procew would base produced a better result than the process used by the Commission. Adjudicatory hearings are best suited to th- : solution of contested factual inues. Most of the iwues raised by Applicants' exemption request were not fact questions but rather questions of international and national policy and engineering judgment. These latter ty pes of issues are dealt with quite awkwardly in adjudicatory hearings.

Finally, the Commission is frequently asked w hy, in light of its long history of resolving contested environmental iwues in adjudicatory hearings, it did not simply require Applicants to adhere to the Commiwioni LWA procedures. The answer to this question is time. Once the Commiwion concluded that delay ing site preparation was not in the public interest, the Commiwion could not conclude, based on its experience with strongly-contested adjudicatory hearings generally and its eitperience with the CRBR LW A hearing specifically. that the limited w ork authoritation procedure would advance in an eitpeditious and timely fashion.

l The CRBR construction permit application was filed on June 12.1975; the notice of hearing on this application w as published on June 17.1975. Almost two years later, at the time the hearing procew w as suspended. Intersenors had sers ed their seventeenth round of interrogatones and the Licensing Board had been involsed in numerous diwosery disputes. This kind of legal maneus ering did not bode well for an efficient and focused LWA proceedmp today.

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The Commission's experience with the presently ongoing LWA proceeding has confirmed its earlier judgment that an adjudicatory process would present many opportunities for delay. Instead of letting the present proceeding advance in a straightforward fashion. Intervenors have attempted on several occasions to inject e

the Commission into the process. For example, after the Licensing Board ruled on the scope of the LWA proceeding. Inten enors asked the Commission to intenene and overrule the Licensing Board's determination. Similarly, during the course of the staffs updating of the environmental review, Intenenors advised the Commis-sion of the NRC's " moral and ethical" duty to supplement the final ensironmental impact statement.

intervenors also attempted to delay the LWA proceeding. When the Licensing

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Board announced a schedule for hearings, Intervenon moved to reschedule them.

When rescheduling was denied, they asked the Board to reconsider its previous rulings admitting contentions. That the Licensing Board has managed to keep this proceeding focused and on track is almost a miracle and not something that could have been predicted by the Commission.

I should point out, however, that even if the Licensing Board is able to meet its present ambitious schedule and bring the LWA proceeding to a close in mid-February 1983 and even if the Licensing Board were to issue a decision recommending authorization to conduct site preparation actisities, site preparation could not begin. Both the Commission and the staff would hase to take further favorable action before that could happen. In part, the Commission would have to conduct an immediate effectiveness review of the Licensing Board's decision.

It has been my experience that the Commission's immediate effectiseness review of a Board decision issued in a heasily contested proceeding considerably exceeds Intervenors' optimistic projections. (Intervenors' B6f at 2123.) For example,the Commission'simmediate effectiveness review of Unit I of the Three Mile Island facility (a proceeding which is analogous to the CRBR proceeding in terms of contentiousness and public interest) is 163 days long and still pending.

The Commission's review of the Diablo Canyon facility is 156 days long and still pending. Even when the Commission reviews decisions of less contested proceed-ings, its review exceeds the goal imposed on it by its own regulations. For example, the Commission's immediate effectiveness review for Unit I of the Susquehanna Steam Electric Station took i19 days from issuance of a Licensing Board decision recommending authorization to operate until issuance of a Com-mission Order concluding its review. Similarly, the Commission's immediate effectiveness review of Unit I of the Virgil C. Summer Station took 98 days. In light of these lengthy periods, Intervenors' assertions regarding the possible length of Commission immediate effectiveness review of an LWA decision seem highly speculative and of doubtful reliability to me.

In sum, it seems to me that the nub of the objections to the Commission's grant of an exemption is not the relatively minor complaints that hase been raised in 14 E

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O Intervenors' Brief, but rather opposition to the reactor itself and possibly to the fast breeder reactor program. Whether there should be a CRBR project and whether there should be a fast breeder reactor program are decisions for the Executive i

Branch and Congress. In light of the affirmative decisions made by these two branches of Government, it is the Commission's duty to conduct its safety and environmental reviews in a timely and efficient fashion so that the public interest is served and unnecessary delay is avoided.

SEPARATE VIEWS OF CO51511SSIONER GILINSKY -(NRDC v.

NRC (CLINCil RIVER))

The Applicants have once again failed to advance reasons which would have justified, or would now justify, granting an exemption for site preparation under section 50.12 of our regulations. During our earlier review, the economic benefits of granting this exemption were found to be non-existent.' 1: can scarcely be argued that advancing by a few months the scheduled start-up date of the Clinch River reactor, which is at best a preliminary prototype, is of any significance in the general development of breeder technology since breeder reactors will not be commercialized in this country for many decades, if ever.2 The real reason the Commission is granting this exemption is, of course, the Department of Energy's desire to get work under way at the Clinch River site in order to forestall an adverse decision by Congress. However understandable DOE's motives may be, this does not qualify as an exigent circumstance justifying an exemption from our regulations.

I ee my separate siews. In the Afarter of UnstrJ States Department of Eneres. Projei e Atanagement S

Co poratum. Tennenee rulles Authorrrs IChnch River Breeder Reactor Plantt CLI42-4. I5 NRC 362 0982L De Commission contmues to argue that granting this exemption would result in a savings of $28 milhor. ICommission opmion at 14 The Commisuon neglects to mentum that thn figure is derned by

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using an artificially low 3 per cent dncount rate. The Commnsion n fully aw are that. if a more reakstic 10 per cent dacount rate Ethat recommended b, the Office of Management and Budget for es atuatmg the economic effects of regulanwy decmonu were uwd, the economic effect grantmg tha esemption turns out to be a loss of $42 millam 2 In fact, an cuemption would now allow the schedule to be mosed up by only about one month since u w the lacensmg Board will, nest month, be in a position to rule on the Apphcanic request for a Limited Work Authoniation 15

DISSENTING VIEWS OF COMMISSIONER AllEARNE in the current order the Commission supports its August decision. I disagreed with the August order, for reasons explained in my dissenting opinion at that time.

G In the current order the Commission attempts tojustify its August decision, I think unsuccessfully, and in the process must discard the normal definition of " exigent circumstances"(see footnote 2). The straining in the current order strengthens my belief the exemption should have been denied.

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Atomic Safety and Licensing Appeal Boards issuances l

ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Dr. John H. Buck, Vice Chairman i

I Dr. Lawrence R. Quarles Dr. W. Reed Johnson l

Thoma6 S. Moore l

Christine N. Kohl l

Stephen F. Eilperin I

Gary J. Edles

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Dr. Reginald L. Gotchy Howard A. Wilber 9

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Cite as 17 NRC 17 (1983)

ALAB-709 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Stephen F. Ellperin, Chairman Thomas S. Moore Dr. Reginald L Gotchy in the Matter of Docket No. 50-341-OL THE DETROIT EDISON COMPANY, et al.

(Enrico Fermi Atomic Power Plant, Unit 2)

January 4,1983 The Appeal Board withdraws its previous order (Nov. 12.1982)(unpublished) directing an intervenor to show cause why its appeal of the Licensing Board's initial decision (LBP-82-96,16 NRC 1408 (1982)) authorizing the issuance of a l

full-power operating license for this facility is proper, and reinstates the in-l tervenor's appeal.

RULES OF PRACTICE: FINDINGS OF FACT (EFFECT OF FAILURE TO FILE)

Absent a licensing board order requiring the submission of proposed findings of fact and conclusions of law, an intervenor that does not make such a filing is free to pursue on appeal all issues it litigated below.

l RULES OF PRACTICE: FINDINGS OF FACT (SANCTIONS FOR l

FAILURE TO FILE) l Under the Commission's Rules of Practice. the filing of proposed findmgs of I

fact is optional, unless the presiding officer directs otherwise. The presidmg 17

officer is empowered to take a party's failure to file proposed findings, when directed to do so, as a default or to impuse other sanctions.10 CFR 92.754.

RULES OF PRACTICE: BRIEFS O

An appeal board will not ordinarily entertain arguments raised for the first time on appeal. Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units I and 2), ALAB-i 693,16 NRC 952,955-56 (1982). See also Public Service Electric and Gas Company, et al. (Salem Nuclear Generating Station, Unit I), ALAB-650,14 NRC 43,49; Tennessee Valley Authority (llartsville Nuclear Plant, Units i A 2A, I B, and 28), ALAB-463,7 NRC 341,348 (1978).

LICENSING BOARDS: RESOLUTION OF ISSUES A licensing board is authorized in most instances to decide only contested issues in an operating license proceeding.10 CFR 62.760a RULES OF PRACTICE: INTERVENTION DENIAL (STANDING TO APPEAL)

Only the petitioner denied leave to intervene can take an appeal of such an order.

10 CFR 62.714a(b).

RULES OF PRACTICE: FINDINGS OF FACT (SANCTIONS FOR FAILURE TO FILE)

Even when a licensing board order requesting the submission of proposed findings has been disregarded, the Commission's Rules of Practice do not mandate a sanction. Consumers Power Company (Midland Plant, Unit? I and 2), ALAB-123,6 AEC 331,332-33 (1973).

LICENSING BOARDS: DISCRETION IN MANAGING PROCEEDINGS A licensing board acts within its discretion in treating as contested those issues of fact as to w hich a party opposing an operating license application had introduced affirmative evidence or engaged in substantial cross-examination. See Northern States Power Company (Prairie Island Nuclear Generating Plant Units 1 and 2),

ALAB-244,8 AEC 857,864(1974),reconsiderationdenied. ALAB-252,8 AEC 18 m

u o9 9 1175, aff'd, CLI-75-1,1 NRC 1 (1975). See also Consumers Power Company (Midland Plant, Units I and 2) ALAB-691,16 NRC 897,905-08 (1982). Compare Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2),

ALAB-280,2 NRC 3,4 n.2 (1975).

RULES OF PRACTICE: FINDINGS OF FACT (SANCTIONS FOR FAILURE TO FILE)

The failure to file proposed findinEs is subject to sanctions only in those instances where a Licensing Board has directed such findings to be filed. That is the extent of the adjudicatory board's enforcement powers under 10 CFR 62.754.

RULES OF PRACTICE: FINDINGS OF FACT (AUTilORITY OF LICENSING BOARDS TO ORDER) 10 CFR 62.754 empowers a licensing board to direct the parties to file proposed findings. See generally Midland, supra, 6 AEC at 333.

APPEARANCES John R. Minock, Ann Arbor, Michigan, for the intervenor Citizens for Employ-ment and Energy.

Ilarry 11. Voigt, Washington, D.C., for the applicants, Detroit Edison Company, et al.

Colleen P. Woodhead for the Nuclear Regulatory Commission staff.

l MEMORANDUM AND ORDER This memorandum authorizes Citizens for Energy and the Environment (CEE) to proceed with its appeal of the Licensing Board's October 29, 1982 initial decision. LBP-82-96,16 NRC 1408. That decision authorized the issuance of a full-power operating license for Fermi 2. Because CEE did not file proposed

,.-,.s findings of fact and conclusions of law with the Board, we initially questioned whether CEE's appeal was progr. See Order to Show Cause (Nov. 12, 1982)

(unpublished). CEE's answer to our order to show cause has convinced us that, absent a board order requiring the submission of proposed findings, an intervenor 19

that does not make such a filing is free to pursue on appeal all issues it litigated below.

Our order that CEE show cause why its appeal should not be dismissed for failure to file proposed findings of fact and conclusions oflaw relied upon a series G

of decisions to the effect that a pany's appellate brief must relate to its ex-l ceptions: in turn, a party can except only to a board finding that rejected that pany's proposal. See Pennsylvania Power and Light Company and Allegheny

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Electric Cooperative, Inc. (Susquehanna Steam Electric Station Units I and 2),

ALAB-693, I6 NRC 952,955-56 (l982); Public Service Electric and Gas Com-pony, er al. (Salem Nuclear Generating Station. Unit 1), ALAB-650,14 NRC 43, 49 (1981). Seemingly, absent proposed findings, there could be no exceptions, no brief, and hence no appeal. As we explain below, however, a closer reading of the i

cases and underlying regulations leads us to conclude that that result can obtain only if a licensing board directs the parties to file proposed findings. Here, the Licensing Board established a timetable for the submission of proposed findings but issued no direction for such a Gling. The distinction is important,' and CEE's appeal is properly before us.

I in civil cases tried in federal court without a jury, the obligation of making findings of fact rests with the court. The litigants need not request them of the court or propose findings of their own. Fed. R. Civ. P. 52(a). This does not mean that i

proposed findings serve no purpose. As one court explained (Hodgson v. Hum-l phries 454 F.2d 1279,1282 (10th Cir.1972)):

l It is, to be sure, good practice and effective advocacy to submit proposed findings and conclusions when requested to do so. And it is prudent to receive them, especia!!y in complicated cases. They serve as a useful aid to the trial court's understanding of each party's theory of the lawsuit based upon their respective versions of the law and facts. There is nothing in the rules of procedure, however, requiring their submission, and it is certainly not error for the trial court to proceed without them.

See generally 5A Moore's Federal Practice. T52.06 (2d ed.1981); 9 Wright &

Miller, Federal Practice and Proccaure, il2574-81 (1971).

Many of :he Nuclear Regulatory Commission's rules of practice are modeled upon the Federal Rules of Civil Procedure. See, e.g.,10 CFR Part 2 App. A, IV(c). The provision governing wbmission of proposed findings to the licensing i Cf. Common =calth Ednan G (Byron Nuclear Power Staten, t; nits I and 2) ALAB 678.15 NRC 1400.1418 (1982)(sanction.u< failure to answer interrogatones is proper only where a teard order unequivocally irnposes an obhgatmn to answco.

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O board,10 CFR 62.754, embodies the same general philosophy as the comparable federal rule. The controlling NRC regulation reads in pertinent part as follows:

d a) Any party to a proceeding may, or if directed by the presiding officer shall, file proposed findings of fact and conclusions of law.. within the time provided by the following subparagraphs, except as otherwise ordered by the presiding officer:

(1) The party who has the burden of proof shall, within thirty (30) days after the record is closed, file proposed findings of fact and conclusions of law.

(2) Other parties may file proposed findings, conclusions of law and briefs within forty (40) days after the record is closed. How-ever, the staff may file such proposed findings, conclusions of law and briefs within fifty (50) days after the record is closed.

(b) Failure to file proposed findings of fact, conclusions of law or briefs when directed to do so may be deemed a default, and an order or initial decision may be entered accordingly.

He text of that rule is plain enough. The filing of proposed findings of fact is optional, unless the presiding officer directs otherwise.2 he presiding officer is also empowered to take a party's failure to file proposed findings, when directed to do so, as a default. In the case at hand, the Licensing Board did not ;irect the parties to file proposed findings, but only approved a filing schedule to which the parties had agreed among themselves. Tr. 576-77. That action of the Board falls short of an explicit direction. Accordingly, no default can attach to the intervenor's decision not to file proposed findings, and its appeal would seem properly before us.

11 Applicants argue that, w hile 10 CFR 62.754 may not empower a licensing board to default a party absent an unheeded direction to file proposed findings, nonethe-less the recalcitrant party is not entitled to appeal the licensing board's decision.

His, we are told, follows from the proposition stated in the cases upon which we relied in our order to show cause -i.e., that a party's appellate brief must relate to

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21here is some ambiguity in the rule as to whether the party that has the burden of proof is obhged to file proposed findmgs. As a practical matter. the issue is unhkely ever to anw becauw apphcants bear g

the burden of proof m hcensmg proceedmgs and invanably make such fihngs.

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its proposed findings.) The NRC staff also argues that CEE's appeal should be dismissed on this basis.*

While it is true that the cases we relied upon noted the proposition applicants and the staff remind us of, neither Susquehanna nor Salem explicitly addressed what G

sanction, if any, may be imposed for a failure to file proposed findings.5 The major difficulty with the applicants' and the staff's argument for dismissal is that it attaches a sanction to an act which our rules explicitly make permissive -it treats the choice not to file proposed findings as a waiver of the right to appeal the Licensing Board's decision. He peculiarity of that result makes their argument manifestly unacceptable as an interpretation of our rules of practice.'

Moreover, our statements in Susquehanna and Salem regarding proposed find-ings were based on the more general proposition that "we will not ordinarily entertain arguments raised for the first time on appeal."Susquehanna, supra,16 NRC at 956 n.6. See also Salem, supra, I4 NRC at 49; Tennessee Valley Authority l

(llartsville Nuclear Plant, Units I A,2A, IB, and 28), ALAB-463,7 NRC 341, 348 (1978). We adhere to that fundamental principle of appellate practice. liow-l ever, here, at least at this juncture, it does not appear that CEE is pressing arguments raised for the first time on appeal. Rather, on its face, its appeal is limited to the evidentiary case it prescnted (through its witness and cross-examination) to the Licensing Board.' The applicant r.nd the staff may seek to l

persuade us to the contrary after CEE's brief has been filed and the issues in controversy have been made explicit. But, at least at this stage of our resiew, it seems as if the Board did have the benefit of CEE's views and was in a position to address CEE's arguments. If the Board was unclear as to where CEE stood, it could have directed CEE to file proposed findings."

Appheants' Respon e to CEE's Answer to Order to Show Cause IDec. 22.19826 at 5-6. Apphcants 5

also argue that the Licensing Board. in fact. directed the panies to submit proposed fmdmgs 14. at 4 As noted in text, we think that the setting of a timetable for the subminiori of proposed findings falis short of a requirement. especially Fiven the language of 10 CFR 92.754 which Jistmguishes between permissive fihngs and mandatory ones.

• NRC Staff Respimse to CEE Answer to Order to Show Cause (Dec. 23.1982L 5 Susquchanna held that a pany's appeal could be dismissed w here its appellate bnef w as so inadequate that it w as equivalent to no bnef at all having been filed.16 NRC at 957. In Salem. w hat we said was m the context of explainmg the indicia of an acceptable bnef, and the hmitations that intenenori bnefs l

had placed on our appellate review.14 NRC at 49-5I.

6 Additionally, the apphcants' argument, if accepted, would place the Board in the unusual position of decidmg the sce.its of issues that, for purposes of appeal, are uncontested This result runs counter to the Commission regulation that in most instances restnets the boards in opera:mg beense proceedmgs to decidmg only amics;rd issues.10 CFR 92 760a.

7 One aspect of CEE's appeal, excepuons 25-28, contests that pan of the Licensing Boardiinitiai decision that denied Monroe County's late filed petition to intenene. CEE cannot press that aspect of j

its appeal because 10 CFR 62.714atb) allows only the petitioner that was denied lease to mtenene to appeal such an order. In addition, we have already disposed of Monroe Countyi appeal See ALAB.707,16 NRC 1760 (1982L 8 We need not, and do not, now reach the question of what constitutes the mmimal panicipation necewary to preserve a panyi appellate nghts. We note, however, that the situatum at har is patently stronger than the case of an intervenor that seeks to appeal a hcensmg board's dispositum of another panyi contentions but has not put on its own evidentiary case.

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On earlier occasions we have recognized that the failure to file proposed

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findings may be the cause for default of other sanctions w here the presiding officer has directed the parties to submit proposed findings. In Consumers Power Com-pany (Midland Plant, Units I and 2), ALAB-123,6 AEC 331,332-33 (1973), we commented that "10 CFR $2.754 gives a party the right to file proposed findings and conclusions, and also provides that a board may require that they be filed" (emphasis added).' We also noted that, even when a licensing board order requesting the submission of proposed findings has been disregarded,"the Com-mission's Rules of Practice [ dol not mandate a sanction," and a licensing board acts within its discretion in treating as contested those issues of fact as to w hich the intervenors had introduced affirmative evidence or engaged in substantial cross-examination. Id. at 333. See also Northern States Power Company (Prairie Island Nuclear Generating Plant, Units I and 2), ALAB-244,8 AEC 857,8M (1974),

reconsideration denied, ALAB-252,8 AEC i175, aff'd, CL1-75-1,1 NRC 1 (1975) (party that failed to submit proposed findings when directed to do so is scarcely in a position, legally or equitably, to protest the Licensing Board's determinations). When another aspect of Midland was recently before us, we dismissed the intervenor's appeal where the Licensing Board had specifically ordered the intervenor, to no avail, to file a brief and proposed findings. Con.

sumers Power Company (Midland Plant, Units I and 2), ALAB-691,16 NRC 897, 905-08 (1982). Compare Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-280,2 NRC 3,4 n.2 (1975)(finding intervenor in default for failing to file proposed findings as directed, but questioning whether even absent such an order an appeal would be entertained).

In sum, w hile our cases may hint at a broader authority to impose sanctions (see St. Lucie, supra), the failure to file proposed findings has met w ith sanctions only in those instances where a Licensing Board directed such findings to be filed. That is consistent with the Commission's rules, and is the extent of the adjudicatory boards' enforcement powers under 10 CFR 62.754.

' Because the intervenors in Midland did not comply with the Board's order to file proposed findmgs. it greatly comphcated the Board's task of determmmg whether particular issues were, m fact. stiu contested. The tailure of intervenors to file proposed findmgs as directed. was one of the practices specifically disapproved of by the Supreme Court in its resiew of certain aspects of the case.

l A)dn,..istrative proceedmgs should not be a game or a forum to engage in unjustified otatructionism by making cryptic and obscure reference to matters that "ought to be" con-i l

sidered and then. after faihng to do more to bnng the matter to the agencyi attention. seek mg to hase that agency determmation s acated on the ground that the agency failed to condder matters

" forcefully presented? In fact, here the agency contmually mvited further clanfication of Saginaw's cont ntions. Even without such clanfication it mdicated a withngnew to recene evidence on the matters. But not only did Sagmaw dedme to further focus its contentions. it virtually dechned to participate. indicatmg that it had "no consentional findmgs of fact to set forth" and that it had not " chosen to search the record and respond to thn pnweeding by subn.ittmg citations of matter which we beheve were prosed or dnprmed "

.%. A Vermont Yankee Mclear Po,ser Corp v. NRDC. 435 U S. 519. 553 54 047t4 23 l

l It is worth reiterating that 10 CFR 62.754 empowers a licensing board to direct the parties to file proposed findings. And that is plainly the better practice. Our earlier Midland decision is again apt:

the rule recognizes that the filing of proposed findings and conclusions by G

parties is likely to be of substantial benefit to a licensing board in resolving various questions which are at issue in a proceeding - particularly one such as this w hich involves complex factual questions and a lengthy record w~

which includes a variety of expressed opinions on the various facets of reactor operation. If nothing else, such proposed findings will assist a board in determining what issues in fact exist between the parties, and w hat issues are either not actually in dispute or not relevant to the eventual decision which must be rendered.

6 AEC at 333. In the case at bar, the Licensing Board proceeded to decision without mandating the filing of proposed findings. Perhaps, given the relatively condensed hearing - three days - the Board did not insist because it felt it had a firmer grasp of the parties' positions and the contested facts than it has in the more usual reactor licensing case. But it would be best if this manner of proceeding were the exception and the licensing boards routinely directed the filing of proposed findings.

For the foregoing reasons, our November 12, 1982 Order to Show Cause is withdrawn, and CEE's appeal from the Licensing Board's October 29, 1982 decision is reinstated. Its brief shall be filed within thirry-five days of service of this decision. It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 24

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O Cite as 17 NRC 25 (1983)

ALAB-710 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Christine N. Kohl Howard A. Wilber in the Matter of Docket No. 50-395-OL SOUTH CAROLINA ELECTRIC & GAS COMPANY, et al.

i (Virgil C. Summer Nuclear Station, Unit 1)

January 13,1983 The Appeal Board, sua sponte, affirms with comments two Licensing Board Decisions in this operating license proceeding: a July 20,1982 panial initial i

decision (LBP-82-55,16 NRC 225) conceming seismic matters and an August 4, 1982 supplemental panial initial decision (LBP-82-57,16 NRC 477) resolving all other matters and authorizing issuance of an operating license subject to certain conditions.

LICENSING BOARDS: DISCRETION IN MANAGING PROCEEDINGS Licensing boards have the authority to call witnesses of their own, but the exercise of this discretion must be reasonable and like other licensing board rulings, is subject to appellate review. A board may take this extraordinary action only after (i) giving the parties to the proceeding every fair opportunity to clarify l

and supplement their previous testimony, and (ii) showing why it cannot reach an informed decision without independent witnesses.

t LICENSING BOARDS: RESPONSIBILITIES Licensing boa-ds are bound to comply with appeal board directives, whether they agree with them or not. The same is true with respect to Commission review of 9

appeal board action and judicial review of agency action. Any other alternative would be unworkable and unacceptably undermine the rights of the parties.

DECISION

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1. In this operating license proceeding involving the Summer nuclear facility, the Licensing Board rendered both a July 20,1982 partial initial decision' and an August 4,1982 supplemental partialinitial decision.2 in the absence of permissible exceptions, we have examined sua sponte each decision, as well as substantial portions of the underlying evidentiary record. Ahhough we do not subscribe to every subsidiary finding of the Licensing Board, our review has disclosed no error affecting the valid.ty of the ultimate result reached by that Board (including the several conditions that it impowd upon reactor operation). Accordingly, that result is affirmed.' We do, however, have comments on two points raised by the Licensing Board's decisions.

First, in the July 20 partial initial decision, the Board noted that, although scientific opinion is " mixed," it found no new evidence that would warrant reassessment of the Licensing Board's determination at the construction permit stage that the 1886 Charleston earthquake should be localized to the immediate Charleston area.* Subsequent to the Board's decision ar.d while our sua sponte review was under way, we received a board notification indicating that the U.S.

Geological Survey has recently " clarified" its position on the Charleston earthquake.' According to the NRC staff, the USGS believes that an earthquake of t LBP 82-55.16 NRC 225. This decision was confined to scismic matters Apphcants' exceptions were dismissed in ALAB-694.16 NRC 958 (1982L 2 LBP-82-57.16 NRC 477. No exceptions were filed to this decision, which resobed the nonseismic inues presented in the proceedmg (pnncipally (mergency preparedness. quahty assurance'quahty control, and the health effects of the uranium fuel cycle and radiation releases dunng normal operation) and authonzed the issuance of an operatmg hcense, subject to ten specified conditions.

3 On October 22, 1982. the Licensmg Board entered an unpubhshed order in which it demed a post August 4 rnmon of intervenor Brett Bursey to reopen the record on a quahty assurance question No appeal has N n taken from that order. Absent exceptional circumstances (and none is apparent herei, we do tr < uew sua sponte t% action taken by hcensing boards on reopenmg motions filed subsequent to thc rendition of the last mitial decision in the proceeding. Thus, we has e not passed on the ments of the October 22 order.

• LBP-82-55. supra.16 NRC at 231 & n 5,262 63. 266-See South Carolma Electnc & Gas Company (Virgd C. Summer Nuclear Station t 'mt 1). LBP-73-11,6 AEC 213. 218. 225. mmfifiedamiafprmed.

ALAB-ll4. 6 AEC 253 (1973) 5 BN-82122 (December 17.1982t 26 W

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that magnitude should not be categorically nited out at locations away from Charleston solely on the basis of an earlier USGS statement. We do not believe that

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this information provides a basis for reexamining the earlier construction permit Licensing Board's conclusions, and thus we agree with the Board below that there is no reason here to reopen the record on the Charleston carthquake. The staff is currently evaluating the significance of the USGS clarification, and, should the evidence of record be substantially undermined, we expect the staff to see that applicants take whatever steps are necessary to provide reasonable assurance of the safe operation of Summer.

Second, the Board's August 4 supplemental decision noted severalinstances of confirmed - albeit neither widespread nor significantly affecting safety-related work - drug and alcohol use on-site during plant construction. The Board stated that "[t]he evidence is not citar whether NRC policy is that such practice is not to be tolerated, or that it is to be tolerated in moderation so long as safety is not compromised," and went on to find quality control of construction to be acceptable.6 We have no quarrel with the Board's findings and conclusions-only some concem that the Commission might be incorrectly perceived as indifferent to drug and alcohol use at nuclear facilities. But in fact, the Commission is now considering this matter in a pending miemaking.7 Although that proceeding does not appear to cover construction workers at a plant that has not yet received an operating license (and thus the incidents described in this record), it does reflect an important awareness of the potential adverse effect on the public health and safety attributable to drug and alcohol use on-site by workers at nuckar facilities.

Accordingly, the Commission may find it useful to explore in the ongoing rulemaking the safety consequences of alcohol and drug use during construction, as well as during plant operation.

2. We turn briefly to the Licensing Board's ccmments on calling independent Board witnesses, contained in the rather lengthy appendix to its July 20 partial l

initial decision. We have no desire to belabor the matter iarther; we simply j

reaffirm what we said in ALAB-663,14 NRC 1140 (1981) ' 3everal of the major l

points of that opinion, however, are worth repeating here.

First, licensing boards of course have the authority to call witnesses of their own. This is necessary for the fulfillment of our shared goal of a fully developed record on matters of safety and environmental significance. But like other licens-ing board rulings, calling independent witnesses is subject to appellate review.The exercise of this discretion must be reasonable; within the framework of NRC proceedings, that means that the boards rnay take this extraordinary action only t

t

• LBP.82-57 supra 16 NRC at 499.

7 See 47 fed. Rcr. 33980 (August 5.1982t See also NUREG-0903 *Sursey of Industry and Government Programs to Combat Drug and Alcohol Abuse"(June 1982L 8 A month before the Board's July 20 partial in taal decision, the Commission issued an order m whach it dechned to take review of ALAB-663. CL!-8210.15 NRC 1377 (1982L 27

after (i) giving the parties to the proceedi.1g every fair opportunity to clarify or sapplement their previous testimony, and (ii) showing why it cannot reach an informed decision without independent witnesses.'

Second, licensing boards are obliged to explain their rulings, particularly when O

they are out of the ordinary. Reviewing courts require agencies to explain their rulings, and, accordingly, we must expect no less from the hearing boards. Rather than viewing a request for explanation as a burden or inappropriate intrusion upon its authority, a board (or indeed any decisionmaking entity) should recognize that it is to its own advantage to explain why it has reached the conclusions it has. A board's well-reasoned memorandum or decision is its principal means of official communication and it should exploit it to the fullest.

Finally - and most important to the orderly functioning of the adjudicatory process - licensing boards are bound to comply with appeal board directives, whether they agree with them or not. The same is true with respect to Commission review of appeal board action and judicial review of agency action. Any other alternative would,in our view, be unworkable and unacceptably undermine the rights of the parties.

It is so ORDERED.

FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board Concurring Opinion of Mr. Rosenthal Insofar as the appendix to the July 20 partial initial deusion is concerned, I am constrained ta add one further cbservation to those centained in the abm e opinion.

In my view, the Licensing Board's endeavor to perpetuate the controversy over its calling independent witnesses ofits ow n was not only unseemly but of no po sible useful purpose. At least for this proceeding, that controversy had come to an end

' Here, our scrutmy of the referenced citauon to the beanng transcnpt and the Boardi statement $ Fas e us substanual cause to doubt that the Board had done so. toth at the time me received the staf fi for direct:J certification and as the matter proceeded Our vanous directioas to the Board reDected not undue interference with the Board's discretion, but rather our legiumate concern that these prm rdurrs were not being otwerved.

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when, on June 22, the Commission declined to review ALAB.663.' Moreover, the Licensing Board had previously detailed its reasons for thinking that resort to its own witnesses was justified.2 In ti.ese circumstances, the most that the appendix did or could do was to record the Board's continuing belief that it was right and thus we were wrong with regard to the independent witness question.

Needless to say, members of a licensing board are entitled to hold their own opinions respecting rulings of higher authority - so long as any disagreement with those rulings is not employed as a basis for ignoring directives that the board is obliged to obey. But the propriety of unnecessarily encumbering the official icports of this agency with an extended dissertation on wholly academic points is quite a different matter. In this instance. it is diff. cult to fathom what interest the members of our Bar and others who follow the course of NRC adjudicatory proceedings might have in knowing whether the Licensing Board remained per-suaded of the correctness of its entier expressed conclusions on the independent witness question.

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I CLI-82-10.15 NhC 1377 (1982).

2 See LBP-8147,14 NRC 865 (1981).

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Cite as 17 NRC 30 (1983)

ALAB-711 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O

ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Stephen F. Eliperin, Chairman Dr. John H. Buck Gary J. Edles Docket Nos. 50-259-OL in the Matter of 50-260-OL 50-296-OL TENNESSEE VALLEY AUTHORITY (Browns Ferry Nuclear Plant, Units 1,2 and 3)

January 21,1983

'Ihe Appeal Board approves a settlement between licensee, intervention peti-tieners and the NRC staff in this proceeding on licensee's application for authorization to store low-level radioactive waste at Browns Ferry, and grants petitioners' motion to withdraw their intervention petitions and requests for hearing.

APPEARANCES Robert B. Pyle, Chattanooga. Tennessee, for petitioners David R. Curott, et al.

Herbert S. Sanger, Jr., Knoxville, Tennessee, for the applicant. Tennessee Valley Authority.

Richard J. Rawson for the Nuclear Regulatory Commission staff.

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DECISION

• lhis proceeding involves an application by the Tennessee Valley Authority (TVA) for a license amendment to authorize the storage for five years of low-level radioactive waste at the Browns Ferry Nuclear Plant. The proceeding is before us on remand frona the Commission so that we could reconsider our decision in ALAB-6@ in light of new information that TVA should have, but did not, serve upon us earlier. See CLI-82 26,16 NRC 880 (1982) 2 See also ALAB-677,15 NRC 1387 (1982).

Before undertaking reconsideration, we issued an order requiring further sub-mittals to clarify the nature of TVA's low-level radioactive w aste storage applics-tion, the present status of TVA's onsite and offsite storage capacity, and TVA's future plans with regard to seeking authorization to incinerate such waste. This last issue, in particular, we thought might be critical to whether petitiona remain desirous of intervening in this proceeding. We also called upon petitioners to advise us w hether TVA's responses have rendered their concerns moot, or w hether they still plan to pursue intervention. If their answer was the htter, they w ere to file a statement of their general concems and comment on the NRC staff's environ-mental impact appraisal of TVA's application. Order of September 20, 1982 (unpublished).

TVA's response advised that (1) it currently ships all of its wastes to offsite disposal sites and will continue to do so as long as such space is available. (2) it is only seeking five-year storage authority, and (3) the progress of the southeastem States toward enacting an Interstate Low 4evel Radioactive Waste Management Compact might alleviate future storage problems so that use of the onsite storage modules TVA had constructed could be limited to cmergency situations. See Statement of John W. Hutton (Oct.1,1982) at 2-3, 5, 8. TVA also noted, however, that at some time in the future it u ould probably propose some system of volume redu.on for Browns Ferry low-level waste. While TVA had made no j

decision in that regard, volume reduction appeared to it to be economically advantageous w hether the waste w as to be stored temporarily onsite or immediate-ly shipped offsite. /d. at 7-9.

The NRC staff also submitted useful information to us including a copy of the Commission's Policy Statement on Low-Level Waste Volume Reduction. See NRC Staff Response (Oct. 8,1982), Attachment 5; 46 Fed. Reg. 51100 (Oct.16, l

198 I ). That policy makes clear that "[t]reatment or disposal of licensed material oy

.v.

I 15 NRC 1 (1982) 2 A1.AB-6M reverwd and remanded a Licenung Board decision denyir.g petitamers' mienentum J; g petitums and requests for heanng. and directed the B.wi to nale on the petitams after its receipt of the NRC staff's enuronmental aswssment of TVA's 'icene amendment application See 15 NRC at 12.

31 l

incineration requires [ specific] Commission approval"- approval that TVA does not seek in this proceeding.

The TVA and NRC staff responses led to settlement negotiations among the parties. The ensuing agreement, together with petitioners' motion to withdraw 9

their petitions have been submitted to us for our approval. In essence, the settlement prosides that until December 31,1987 TV A will notify certain named persons "within 10 days of submission, of any application in which TV A requests from the Nuclear Regulatory Commission permission to build, operate or modify a system to incinerate low level radioactive wastes (LLRW) in the States of Ala-bama, Mississippi or Tennessee." Petitioners, for their part, agree to withdraw their intervention petitions and request that this proceeding be dismissed. The NRC staff has no objection to the withdrawal of the petitions or to dismissal of the

._ s proceeding, and joins in the stipulation to that extent. Stipulation (Jan. 18,1983).

We have examined the petitioners' motion to withdraw and the accompanying st pulation. Finding no ground for denial, the stipulation is approved and petition-i ers' motion to withdraw their petitions is granted.

It is so ORDERED.

FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 32

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Atomic Safety and Licensing Boards issuances I

ATOMIC SAFETY AND LICENSING BOARD PANEL l

B. Paul Cotter, ' Chairman l

Robert M. Lnzo, 'Vice Chairman (Executive) l Frederick J. Shon, 'Vice Chairman.' Technical) i Members Dr. George C. Anderson James P. Gleason Dr. M. Stanley Uvingston Charies Bechhoefer*

Andrew C. Goodhope Dr. Emmoth A. Luebke' Peter B. Bloch*

Herbert Grossman*

Dr. Kennth A. McCollom Lawrence Brenner*

Dr. Cadet H. Hand, Jr.

Morton B. Margulies*

Glenn O. Bright

• Jerry Harbour

• Gary L. Milhollin Dr. A. Dixon Callihan Dr. David L. Hetrick Marshall E. Miller

• James H. Carpenter

• Emest E. Hill Dr. Peter A. Morris

• Hugh K. Clark Dr. Robert L. Holton Dr. Oscar H. Paris

• Dr. Richard F. Cole

• Dr. Frank F. Hooper Dr. Hugh C. Paxton Dr. Frederick R. Cowan Helen F. Hoyt*

Dr. Paul W. Purdom Valentine B. Deele Elizabeth B. Johnson Dr. David R. Schink Ralph S. Decker Dr. Walter H. Jordan iven W. Smith

• Dr. Donald P. de Sytva James L. Kelley*

Dr. Martin J. Steindler Dr. Michael A. Duggan Jerry R. Kline*

Dr. Quentin J. Stober Dr. George A. Ferguson Dr. James C. Lamb 111 Seymour Wenner Dr. Harry Foreman James A. Laurenson*

John F. Wolf Richard F. Foster Gustave A. Linenberger*

Sheldon J. Wolfe' John H Frye Ill*

Dr. Linda W. Little

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Cite as 17 NRC 33 (1983)

LBP-83-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Chairman Dr. Oscar H. Paris Freder;ck J. Shon in the Matter of Docket Nos. 50-247-SP 50-286-SP CONSOLIDATED EDISON COMPANY OF NEW YORK (Indian Dolnt, Unit No. 2)

POWER AUTHORITY OF THE STATE OF NEW YORK (Indian Point, Unit No. 3)

January 7,1983 Applying the guidelines set forth in the Commission's orders of July 27,1982 (CLI-82-15,16 NRC 27) and September 17,1982 (CL182-25,16 NRC 867), the Licensing Board reconsiders and reformulates the emergency planning conten-tions admitted in its April 23,1982 memorandum and order (LBP-82-34,15 NRC 895), and considers new contentions proposed by Intervenors.

j MEMORANDUM AND ORDER (Reformulating Contentions Under Commission Questions 3 and 4) 1, INTRODUCTION in our November 15,1982 Memorandum and Order (Formulating Final Conten-tions and Setting Schedule, LBP-82-105,16 NRC 1629), we deferred considera-i l

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tion of conter.tions under Commission Questions 3 and 4 until after FEMA's issuance of its report on the adequacy of offsite emergency planning at Indian Point. FEM A's report, dated December 16,1982, assesses the corrective actions O

taken during the 120-day period (August 3,1982-December 3,1982) set by the Commission to cure deficiencies noted in FEM A's interim repon of July 30,1982, and assesses the adequacy of the current plan as a whole. In reformulating the contentions under Commission Questions 3 and 4, we have considered changes in the status of emergency planning that have occurred during this period. In addi-tion, we have considered.'ntervenors' arguments in suppon of their previously filed contentions and Intervenors' proposals for new contentions. (See " Parents Concerned About Indian Point Proposed Revised Contentions on Commission Questions 3 and 4," dated December 24,1982 (Parents' Revision);" West Branch Conservation Association's Notice of Continuation of Contentions t.nder Ques-tions 3 and 4," dated I>:ccmber 27,1982 (WBCA's Notice); "NYPIRG Sub-mission in Suppon of Contentions on Questions 3 and 4 Formulated by Board Memcrandum and Order of April 23, 1982," dated December 28, 1982 (NYPIRG's Submission); and "WESPAC Submission Regarding Revised Con-tentions on Commission Questions 3 and 4," dated January 6,1982 (WESPAC's Submission).)

In determining the admissibility of the emergency planning contentions, we have applied the guidelines set fonh in the Commission's orders of July 27,1982 (CL1-82-15,16 NRC 27) and September 17,1982 (CLI-82-25,16 NRC 867):

1. Proffered contentions must have included a statement of bases and both contentions and the bases must have been stated with reasonable speci-ficity.

2. Those contentions that, while complying with 62.714, do not seem likely to be imponant to answering the Commission's questions should be eliminated.

3. Contentions under Commission Question 3 should not challenge the regulations. With regard to the size of the plume exposure pathway i

I EPZ, however, the Commission noted that the " exact size and con-figuration can be affected by local conditions." The Board is "to address whether the high population density posed by the two plants is such a local condition."

(

4. Contentions under Commission Question 4 may argue that additional emergency planning measures, not reqJired by NRC or FEMA, t.hould be required for indian Point as pmdent risk reduction measures in light of the risks posed by Indian Point as opposed to the spectrum of risks l

posed by other nuclev plants. However, panies must provide a sound I

basis for such contentions.

Following a restatement of Commission Questions 3 and 4 herein, we address first the contentions admitted in our April 23, 1982 Memorandum and Order 34

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9 (Formulating Contentions. Assigning Intervenors, and Setting Schedule. LBP 34,15 NRC 895) and then the contentions proposed by Intervenors in their recent submissions.

II. RECONSIDERATION OF CONTENTIONS ADMITTED IN Ol'R APRIL 23,1982 AIE310RANDUSI AND ORDER Commission Question 3 What is the current status and degree of conformance with NRC/ FENI A guidelines of state and local emergency planning within a 10-mile radius of the site and, of the extent that it is relevant to risks posed by the two plants, beyond a 10-mile radius? In this context, an effort should be made to establish what the minimum number of hours warning for an effective evacuation of a 10-mile quadran' at Indian Point would be. The FENIA position should be taken as a rebuttable presumption for this estimate.

We admitted seven contentions under Commission Question 3 in our April 23, 1982 order. We address them seriarim.

Contention 3.1 Emergency planning for Indian Point Units 2 and 3 is inadequate in that the present plans do not met any of the sixteen mandatory standards set forth in 10 CFR 50.47(b), nor do they meet the standards set forth in l

Appendix E to 10 CFR Part 50.

The bases for this contention were set forth extensively in the follow ing filmgs:

1) UCS/NYPIRG's" Content;ons of Joint intervenors Union of Concerned Scientists and New York Pubhe Interest Research Group." dated De-cember 2,1981 (hereinafter UCS/NYPIRG Contentions)(See Conten-tion 1( A));

2) NYPIRG's Submission of December 28,1982;

3) WESPAC's " Contentions of the Westchester People's Action Coali-tion," dated December I,1981 (hereinafter WESPAC Conteritions)

(See Contentions I,2, and 3); and

4) RCSE's " Supplement to Petition: Contentions." dated December 1.

1981 (hereinafter RCSE's Supplement)(See Contentions 2. 3 and 5).

i We have determined that this contention should remain in the proceeding since I

both the conter. tion and its bases meet the enteria set forth above.

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i Contention 3.2

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Emergency planning for Indian Point Units 2 and 3 is inadequate in that the plans make erroneous assumptions about the response of the public and 9

of util;ty employees during radiological emergencies.

The bases for this contention were set forth in the following filings:

1) UCS/NYPIRG Contentions (See Contention 1(B)(1));

2) WESPAC's Cor.tentions (See Contention 4);

3) Parents'" Contentions of Parents Concemed About Indian Point," dated I

s December 2,1981 (hereinafter Parents' Contentions) (See Contention 111); and 4) WBCA's " West Branch Conservation Association's Reply to Objec-tions to Its Filed Contentions," dated January 11,1982 (hereinafter WBCA's Reply) (See Contention in reply to Question 3).

Upon reconsideration of this contention, we have determined that it does not identify any specific lack of conformance with NRC/ FEM A emergency planning guidelines, and therefore, does not seem likely to be important to answering l

Commission Question 3. In addition, while similar issues may have been litigated l

in other NRC proceedings, the contention shows no clear nexus to the central point of this investigation, vi:, the uniquely populous environs ofIndian Point. It should be noted that if the substance of this contention were proven valid at Indian Point,it 1

l w ould be valid at other nuclear facilities as well and thus would not meet any test of uniqueness to Indian Point. The Comraission questions were designed to caplore l

the nature of risks at Indian Point with its large population surrounding the facility as coinpared to the spectrum of risks posed by other nuclear plants. Therefore.

Contention 3.2 shall be climinated.

1 Contentinn 3.3 j

The present estimates of evacuation times, based on NUREG-0654 and studies by CONSAD Research Corporation and by Parsons, Brinkerhoff, Quade & Douglas, Inc., are unreliable. They are based on unproven assumptions, utilize unverified methodologies, and do not reflect the actual emergency plans.

The bases for this contention were set forth in the following filings-I) UCS/NYPIRG Contentions (See Contention f(B)(2));

)

1

2) TBCA's Reply (See Contention in reply to Question 3); and

3) RCSE's Supplement (See Contention 1).

We have determined thu.this contention, insofar as it challenges the accuracy of the evacuation time estimates required by the regulations, should remain in the

(

proceeding because the contention and its bases meet the criteria set forth a I

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s Contention 3.4 4

4 The Licensees cann(.. be depended upon to notify the proper authorities of an emergency promptly and accurately enough to assure effective response.

The bases for this contention were set forth in the following filings:

1) RCSE's Supplement (See Contention 2, bases (a) and (b) only); and

2) WESPAC's Contentions (See Contention 2).

This contention and its bases, which challenge the Licensees' abihty to responsibly initiate notification of an emergency to response officials, meet the Commission guidelines and therefore shall remain in the proceeding.

Contention 3.6 The emergency plans and proposed protective actions do not adequately take into account the full range of accident scenario: and meteorological conditions for Indian Point Units 2 and 3.

The bases for this contention were set forth in the following filings:

1) UCS!NYPIRG Contentions (Sce Contention 1(B)(3)); and

2) WESPAC's Contentions (See Contention 3, basis (d)).

This contention and its bases challenge the adequacy of the protective actions in the emergency plans due to their failure to provide for a full range of accident scenarios and meteorological conditions. As it represents a specific challenge to an adequate emergency plan, the contention meets the requisite criteria and is adrr f ted to the proceeding.

Contention 3,7 l

The problems of evacuating children from threatened areas have not been adequately addressed in the present emergency plans.

The bases for this contention were set forth in the following filings:

1) Parents' Contentions (See Contention I, bases (4), (5), (6), (7) and ( l 5);

and

2) Parents' Revision (Sce Contention V, bases (1)-(10)).

This contention and its bases, spec'.fically challenging the adequacy of the range p.

of protective actions provided in the emergency plans, meet the requisite criteria set forth above and shall remain in the proceeding.

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Contention 3.9 l

The road system in the vicinity of the Indian Point plant is inadequate for l

timely evacuation.

The bases for this contention were set forth in the following filings:

1) WESPAC Contentions (See Contention 5); and j

,up

2) WBCA's Reply (See Contention ir. reply to Question I and Contention in reply to Question 5).

This contention and its bases challenge the adequacy of the road network to accommodate evacuation in Rockland and Westchester counties and meet the Commission's standards of specificity and importance. The contention may bc l

relevant also for possibly providing answers to the Commission's expressed j

interest in establishing the minimum number of hours needed for an effective evacuation of a ten-mile quadrant at Indian Point. The contention shall remain in the proceedmg.

Commission Question 4 What improvements in the level of emergency planning can be expected in the near future, and on what time schedule, and are there other specific offsite emergency procedures that are feasible and should be taken to protect the public?

l We admitted seven contentions under Commission Question 4 in our April 23, 1982 order. We address them seriatim.

Contention 4.1 The plume exposure pathway EPZ should be expanded from its present 10-mile radius in order to meet local ememncy response needs and i

capabilities.

(

The bases for this contention were set forth in the following filings:

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1) UCS/NYPIRG Contentions (See Contentions !!( A), ll(B), and !!!(C));

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2) Parents' Contentions (See Contention 11, basis 7); and

3) Parents' Revision (See Original Contention 11 and Proposed Contention Vil, based on Memorandum and Order, April 23,1982 and basis 2).

The Board believes this contention is too broad as presently stated and has l

reformulated the contention as follows:

New Contention 4.1 The plume exposure pathway EPZ should be expanded from its present l

10-mile radius in order to meet local emergency needs and capabilities as 38 1

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1 they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundaries.

As reformulated, the contention and its bases meet the Commission's standards of specificity and importance and shall remain in the proceeding.

Contention 4.2 The following specific, feasible offsite procedures should be taken to protect the public:

a) Potassium iodide should be provided in an appropriate form for all residents in the EPZ.

b) Adequate sheltering capability should be provided for all resi-dents in the EPZ.

c) License conditions should prohibit pow er operation of Units 2 and 3 when the roadway network becomes degraded because of adverse weather conditions.

d) The roadway network should be upgraded to permit successful evacuation of all residents in the EPZ before the plume arrival time.

The bases for this contention were set forth in the following filings:

1) UCS/NYPIRG Contentions (See Contention llIU ' subparts (a), (b),

(c), and (e)).

2) RCSE's Supplement (See Contention 4).

We retain this contention without change since it meets the Commission's criteria of providing a sound basis for exploring whether additional requirements are necessary for the Indian Point facility.

l Contention 4.3 There are no feasible offsite emergency procedures which can adequate-ly protect the public.

The bases for this contention were set forth in the following filings:

1) " Contentions of the Friend: of the Earth, Inc., and New York City Audubon, dated December 2,1981 (hereinafter FOE /Audubon Con.

tentions)(See Contention 1);

2) WBCA's Reply (See Contention in reply to Question 4); and I

3) WESPAC's Contentions (See Contention 5).

We have reviewed this Contention, its bases, and the comments made thereon during the April 13-14,1982, prehearing conference, and have decided, in light of l

the Commission's guidance, that the contention must be deleted. It offers no new "W

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suggestions for improving emergency planning or plant safety. Mere criticism existing emergency plans provide nothing that is not already covered in conten-tions accepted under Commission Questions I and 3. Therefore, Contention 4.3 shall be eliminated.

9 Contention 4.4 The emergency plans should be upgraded by taking account of special groups with special needs in emergencies. In particular, provision must b made for evacuating persons who are dependent upon others for their

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mobility.

The bases for this contention were set forth in the following filings:

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1) WESPAC's Contentions (See Contention 6);

2) Parents' Contentions (See Contention I, basis (22) and Contention II, j

basis (7));

3) Parents' Revision (See Contention X); and

4) UCS/NYPIRG Contentions (See Contention 1( B)(2), basis (6) and Con-tention f(A), basis (7)).

We have decided to delete this contention from consideration unde sion Question 4 because the contention and its bases challenge the adequacy emergency plan but do not offer specific additional emergency planning measure which should be required. However, we find that the bases mentioned above identify specific inadequacies in the plan which are important to answering Commission Question 3, and which might not be covered in the bases of conten-tions already admitted. Therefore, we have decided to reformulate Contention as a contention to be considered under Commission Question 3. T shall be labelled Contention 3.10 and shall state as follows:

Contention 3.10 The emergency plan fails to conform to NUREG-0654 in that, contrary to Evaluation Criterion ll.J.10.d., proper means for protecting persons whose mobility may be impaired have not been developed. Specifically, adequate provisions have not been made for groups named in the bases submitted for the following contentions:

WESPAC 6 Parents 1, basis (22) and 11 basis (7)

UCS/NYPIRG 1(B)(2), basis (6) and 1(A) basis (7).

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O Contention 4.5 Specific steps must be taken by NRC, State, and local officials to promote a public awareness that nuclear power plant accidents with substantial offsite risks are possible at Indian Point.

The basis for this contention was set forth in "UCS/NYPIRG Contentions," in Contention 1(B)(7).

Upon reconsideration of this contention and its basis, we have determined that a

" sound basis" has not been provided for the suggested additional measure and that the contention does not meet the standard of specificity required under the Commission guidelines. Analysis of the TMI-2 accident alleging a failure of the NRC to promote the necessity for emergency planning in that case does not provide a sufficient basis to support a contention that more steps are necessary in this case, particularly in light of the emergency planning requirements embodied in NRC regulations since the TMI-2 accident. In addition, the essence of this contention, i.e., the need for advance public information, is encompassed in UCS/NYPIRG Contention I(A)(bases (7) and (9)), which has been accepted for litigation under Contention 3.1. Therefore, Contention 4.5 shall be climinated.

Contention 4.6 A maximum acceptable level of radiation exposure for the public must be established before any objective basis will exist for adequate emergency planning.

The basis for this contention was set forth in "UCS/NYPIRG Contentions,"in Contention 1(B)(6).

We have determined that this contention should also be deleted from the proceeding. It calls for the establishment by the NRC of acceptable dose levels under accident c cafitions in order that responsible emergency planning can be evaluated. This wntention challenges the NRC regulations without providing a l

sound basis for why such a measure is necessary for Indian Point in particular.

Were the NRC to issue acceptable dose levels, they would apply to every nuclear facility. Our responsibility is to look at the extent to which nearby population I

affects the risk posed by Indian Point as compared to the spectrum of risks posed by other nuclear power plants. This contention does not meet that guidance.

i Contention 4.7 The present emergency planning brochures and present means of alett-ing and informing the population of an emergency do not give adequate 1

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attention to problems associated with persons who are deaf, blind, too young to understand the instructions, or who do not speak English.

The bases t'or this contention were set forth in the following filings:

1) Parents' Contentions (See Contention I, bases (2), (17), and (22); and Contention 11, basis (7));

0

2) Parents' Revision (See Contention Xill);

3) WESPAC's Contentions (See Contention 2, bases (c) and (f)).

Upon reconsideration of this contention and its bases, we have determined that parts of the contention are sutssumed in contentions under Commission Question 3.

In addition, as currently phrased the contention merely identifies inadequacies but does not suggest additional measures. On the other hand, the bases submitted do provide a sound basis for proposing additional measures that should be required to notify the special population groups listed in the contention, and this issue is not treated directly under Commission Question 3. In order to have the benefit of the parties' testimony on this matter, and to conform with Commission guidance, we have decided to reformulate the contention as follows:

Reformulated Contention 4.7 The emergency plans should be upgraded to provide more adequate methods for alerting and informing persons w ho are deaf, blind, too young to understand the instructions, or who do not speak English.

Intervenor Assignments lead and contributing intervenor assignments for the retained contentions and for the reformulated contentions will be the same as listed in our April 23,1982 order.

Ill. CONSIDER ATION OF NEWLY PROPOSED CONTENTIONS NYPIRG in "NYPIRG's Submission" and Parents in " Parents Revision" have proposed new contentions which we will discuss below.

NYPIRG Proposed Contentions

1. The exercise process is not an adequate basis for determir.ing aspects of mergency response capability for an accident at Indian Point.

11. ' Letters of agreement, memoranda of understanding, and mutual aid agreements signed by the responsible local officials and by the emergency workers themselses should be the determining criteria in evaluatmg emergency response capability.

1

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ww Parents' Proposed Contention

...x.

XIV. Preparedness should be demonstrated by the willingness and ability of

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emergency workers in the field, by commitments in the form of letters of agreemen* from all emergency response agencies including schools, bus companies, fire depanments, ambulance corps, and local Red Cross chapters, and by the approval, in the form of signatures on the plan, of elected officials of local govemments which will be called upon to implement the plans.

NYPIRG supports its new Contention I by ten alleged bases which consist primarily of specific criticisms of the projected emergency planning exercise.

NYPIRG proposes in its new Contention 11 cenain evaluation criteria which would replace the drill as a means of determining the adequacy of emergency response capability at Indian Point. We view Parents new Contention XIll as substantially identical to NYPIRG's new Contention 11.

We note also that N YPIRG presents its new Contention I as an alternative to our formulating a Board question on the exercise (NYPIRG's Submission at 2).

We have decided not to formulate a Board question on the exercise and not to admit the newly proposed contentions. We find that a Brard Question on the results of the exercise is unnecessary because, as we have indicated previously, we expect FEMA will repon the results of the exercise to the Board and the panies.

The results of the exescise will be subject to whatever scrutiny the Board believes to te essential at that time. Further, we decline to formulate a question on the adequacy of the exercise and the results of the exercise as a measure of prepared-(

ness at Indian Point or to admit NYPIRG's new Contention I because such a question or contention would challenge the regulations and violate Commission l

guidelines under Commission Question 3.

We reject NYPIRG's new Contention 11 and Parents' new Contention XIV for two reasons. To the extent the contentions allege that NUREG-0654 Evaluation Criterion II(A)(3) has not been complied with, the contentions are covered under previously admitted Contention 3.1 (See especially UCS/NYPIRG I( A) basis 3).

To the extent the contentions propose new measures not required by FEMA or NRC, they are a challenge to the emergency planning regulations. While such a challenge is allowed under Commission Question 4, panics must provide a sound basis for such a contention and such a basis must be connected to the unique situation at Indian Point. NYPIRG and Paents have failed to show why such a requirement would be mo e necessary at Indian Point than at other nuclear power plants, and therefore, have failed to provide the sound basis required.

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=-

Upon consideration of the foregoing and the entire record in this matter,it is this f

7th day o January,1983, r

ORDERED

1. That the following contentions set forth in our Order of April 23,1982, shall 9

be retained and litigated in this proceeding:

Under Commission Question 3 3.1, 3.3, 3.4, 3.6, 3.7, and 3.9 Under Commission Question 4 4.2 l

2. That Contentions 4.1,4.4 and 4.7 shall be reformulated. As reformulated,

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old Contention 4.4 will be litigated under Commission Question 3 as Contention 3.10. Old Contentions 4.1 and 4.7, as reformulated, retain their original numbers and will be litigated under Commission Question 4.

3. That Contentions 3.2, 4.3, 4.5, and 4.6 shall be eliminated from the proceeding.

4. That the motions by NYPIRG and Parents for the admission of new conten-tions and formulation of a new Board Question are denied.

Tile ATOMIC SAFETY AND i

LICENSING BOARD Dr. Oscar H. Paris ADMINISTRATIVE JUDGE t

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Frederick J. Shon ADMINISTRATIVE JUDGE f

James P. G!cason, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland l

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2. J P

w %s

l Cite as 17 NRC 45 (1983)

LBP-83-2 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD i

Before Administrative Lsw Judge:

Morton B. Margulies in the Matter of Docket No. P-564-A ASLBP No. 76-334-07 AN (Antitrust)

PACIFIC GAS AND ELECTRIC COMPANY (Stanislaus Nuclear Project, Unit 1)

January 19,1983 The Licensing Board grants applicant's motion to withdraw its construction l

permit application without prejudice subject to its compliance with terms and conditions established by the Board for the preservation of discovery documents.

RULES OF PRACTICE: DISMISSAL OF PROCEEDINGS The possibility that an intervenor may be faced in the future with a refiled l

application and attendant burdens of renewed intervention is no bar to granting a motion to withdraw an application for the construction of a nuclear plant, without prejudice. Any harm the intervenor may suffer, recognized as such under the law, can be overcome by attaching appropriate compensatin3 conditions as a require-ment for withdrawal.

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RULES OF PRACTICE: DISMISSAL OF PROCEEDINGS The de6ision of the applicam to withdraw its application for the construction of a nuclear plant was a business judgment. The law on withdrawal does not require a determination of the soundness of the decision. What can be required of the 45

Licensing Board is to appropriately condition the order goveming the dismissal to overcome legally recognized harm arising from allowing the withdrawal without prejudice.

O MEMORANDUM AND ORDER (RULING ON MOTION FOR WITilDRAWAL)

Applicant Pacific Gas and Electric Company (PG&E) filed a motion in the captioned pieceeding to withdraw its application, without prejudice, and proposed

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as a condition to the termination a method for the preservation of documents made available through discovery, it seeks to end the proceeding on the bases that any need for the Stanislaus Nuclear Project will not arise until the year 2001 and beyond and that construction of the facility is dependent upon being successful in its challenge to California's " nuclear safeguard laws?

In response, Nuclear Regulatory Commission Staff (Staff) supported the motion and intervenor State of Califomia Department of Water Resources (DWR) did not object to it. They agreed on the need to preserve documents but differed on how it should be accomplished. By a joint answer filed by intervenors, Northem Califor-nia Power Agency (NCPA) and the Cities of Anaheim and Riverside, California (Cities), they opposed the withdrawal of the application and were of the position that if withdrawal were permitted the proposed condition for the preservation of documents was inadequate and that additional conditions were required.

The intervenors in opposition asserted the motion for withdrawal should be denied because applicant had not committed itself to not building the Stanislaus Nuclear Project and that the proposed armination of the proceeding was a ploy to remove applicant fron. the Commission's scrunny and provided PG&E with the opportunity to resubmit the application at a more advantageous time to it. They assert applicant's request is unsupported in law or fact. NCPA and Cities claim that should the motion be granted, in order that they not be prejudiced by the termina-tion, a more comprehensive document preservation condition is required and that additional conditions are needed to reimburse intervenors for costs and expenses including attomey fees, and to require PG&E to make available discovery docu-ments from this proceeding in other proceedings to which it is a pany and to agree to waive any objections to a full hearing on the adequacy of the Stanislaus Commitment in Pacific Gas and Electric Company (Diablo Canyon Nuclear Plant, Units I and 2), NRC Docket Nos. 50-275 and 50-276.

On September 21,1932, oral argument was held before me on the motion for withdrawal and possible terms and conditions that should be imposed if the motion were to be granted. Appi; cant, Staff and DWR maintained their previously taken positions on the motion and entered into a stipulation agreeing to the method by 46

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which discovery documents should be preserved. NCPA and Cities continued in their opposition to the motion and were not parties to the st:.,ulation. They requested the opportunity to comment in writing by October 21,1982 on the adequacy of the proposal for the preservation of documents. The request was granted and they submitted their comments. PG&E and Staff submitted responses basically asserting that intervenors' comments were not meritorious.

A brief recitation of past events relevant to the motion is appropriate. On July ll,1975, PG&E, pursuant to 10 CFR 50.33a provided to the Commission "Information Requested by the Attorney General for Antitrust Review"in connec-tion with its intention to construct a nuclear electric generating Iacility identified as the "Stanisisus Nuclear Project." The Department of Justice on May 5,1976 advised the Commission of its approval of a Statement of Commitment which it believed would obviate the antitrust problem posed by PG&E activities. On April 30,1976, PG&E accepted the Stanislaus Commitment agreeing to its attachment as part of the conditions to licensing the Stanislaus Nuclear Project and agreed that if the facility were not constructed by 1979, to attach it as part of the license conditions of its Diablo Canyon Project. Upon that basis Department of Jua, e declined to recommend that this Commission hold an antitrust hearing in accord-ance with Section 105 of the Atomic Energy Act, as amended. (PG&E never filed that part of the application dealing with the physical construction of the Stanislaus facility, so that it was not built by 1979 and the Stanislaus Commitment became part of the license conditions of the Diablo Canyon Project.)

On April 15,1977, the Licensing Board assigned to this proceeding granted the DWR, NCPA and Cities petitions to intervene and ordered an antitrust hearing pursuant to Section 105 of the Atomic Energy Act, as amended,in connection with PG&E's proposed construction of the Stanislaus Nuclear Project. The matter is reported in Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1 )

1.BP-77-26,5 NRC 1017 (1977).

Since 1977 the parties have undertaken extensive discovery. Sescral million documents are involved and in excess of one million and a half have been produced r

PG&E and Staff filed a joint motion on February 13, 1981 for suspension o discovery. Applicant based its request on the California nuclear law s and its plans for Stanislaus. In 1976 California implemented amendments to the Warren-Alquist State EnerFy Resources Cor.servation and Development Act (Cal. Pub.

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Resources Code, 925,000 et seq.) that prohibit the construction of new nuclear l

plants i:ntil a State commission fmds that proper means exist for the disposal of U ~' ;

high-level m' clear waste. The State commission has determined that it cannot so find and nuclear plants cannot be approved in California. In 1978 PG&E chsi-lenged the California nuclear laws and in 1980 obtained a judgment that the statutes were unconstitutional (Pacific Gas and Electric v. State Energy Re-mes.

sources 489 F.Supp. 699 (1980). At the time of deciding the joint motion for 47

suspension of discovery an appeal had been taken to the United Stain Court of Appeals for the Ninth Circuit and it had not been decided. (De Ninth Circuit has since reversed the lower coun in the case now captioned Pacific Legal foundation

v. State Energy Resources Conservation and Development Commission. 659 F.2d O

903 (1981). The matter was taken by PG&E to the United States Supreme Coun (No. 81-1945) and in June 1982 ceniorari was granted. The case is presently pending.) PG&E considered it impractical to proceed with Stanislaus because of the uncertainty of the Califemia law. Another ground applicant gave for the proposed suspension of discovery was a change in baseload power needs and that as a result the need for Stanislats power was pushed back 3 or 4 years.

Barton W. Shackleford, President and Chief Operating Officer of PG&E, submitted an affidavit in support of the motion, dated March 2,1981, setting forth L

that the need for Stanislaus power was for 1997 and beyond and that a Stanislaus construction pennit would be required in 1989.

Staff gave as its reason for supponing the motion the then current state of the application as described by PG&E and the inability to iustify the cont;nuing expenditure of money, time and effcrt on the proceeding.

De Licensing Board on July 9,1981, denied the motion upon the bases applicant would build the facility if the legal questions were resolved in its favor and that considering the massive effort already put into discovery and the desire and ability of the intervenors to assure full ventilation of the antitrust issues it would be wasteful and inexpedient to suspend discovery.

On September 18,1981. PG&E filed a pleading captioned" Notice of Prematur-ity and Advice of Withdrawal." It notified the Commission that PG&E was withdrawing from what it termed a " pre-application proceeding." The following justification was given. It did not consider its prior panicipation as that of an applicant. De information it submitted for antitrust review pursuant to 10 CFR 50.33a was not followed within 36 months with an application for a construction permit, as provided for in the regulation. That pan of the application for the actu construction of the facility was never filed. Because it continued to be faced with impediments to constructing and operating the facility, PG&E decided to with-draw from the proceeding. It had concluded that the expense of continued panici-pation in what had proved to be a very costly enterprise was no longer justifie The impediments to its continuing were California's restrictive nuclear laws and the remoteness in time for the need for the Stanislaus facility, being some fifteen years in the future. By order of March 17,1982 (CLI 82-5,15 NRC 4N), the Commission ruled that PG&E could not unilaterally withdraw from the proceed-ing. It found that submitting antitrust information pursuant to 10 CFR 50.33a is pan of the application for a construction peanit, as that term is defined in 10 C 2.101(a)(5). It therefore treated the motion as a request for permission to with-draw. Because a notice of hearing had been issued in the case, under 10 CFR 48 i

O 2.107(a),it ruled the matter to be within the jurisdiction of the Licensi aferred the matter to it for disposition.

Interim to the filing of the " Notice of Prematurity and Advice of Withd and the issuance of the Commission order, DWR on October 5,1981 file to enter a formal reprimand and censure of appheant for allegedly refrd comply with the discovery orders and directions of the Licensing September 21,1980 through September 1981, when the " Not was filed. Staff responded io the motion on October 5,1981 and was it could not agree with DWR's interpretation of the facts or its chara PG&E's conduct as set fonh in the motion. Staff sought denial of the m DWR previously raised the matter of noncompliance by PG&E with orders on July 10,1981 in an answer to a motion of applicant for a pro staying discovery pending final disposition of the joint motion fo of discovery. On July 30,1981, in an order denying the motion, the Board ordered,"That discovery by the panies be resumed promptly in with their prior agreements and the Board's orders and directives."

On March 23,1982 the proceeding was assigned to the presently c Licensing Board. (Its membership changed briefly in the period O to December 28,1982 for good cause.) The Licensing Board, by Mem and Order of April 9,1982 authorized the panies to make a de novo motion to withdraw and of the answers in order to give the parties a opportunity to meet the agen:y's criteria for deciding the withd Appeal Boards had come out with Puerto Rico Electric Powe Coast Nuclear Plant, Unit I), ALAB-662,14 NRC 1125 (1981) and P Electric Company (Fulton Generating Station, Units I md 2), ALAB NRC %7 (1981) subsequent to the filing the parties mado a the with The subject motion to withdraw and answers were then filed.

Applicant has presented a legally sufficient case for grantin withdrawal, without prejudice.

Commission regulation 10 CFR 2.107(a) provides that withdraw cation after issuance of a notice of hearing, as occurred in this pro on such terms as the presiding officer may prescribe. De Appeal B the law on withdrawal before the Commission in Fulton, aupra, sta l

licensing boards may not abuse this discretion by erercising their arbitrary manner and that the terms prescribed at the time of w a rational relationship to the conduct and legal harm at which the The Federal Rule on voluntary dismissal by order of the Court, Fe Proc. 41(a)(2),28 U.S.C. A. is similar to the Commission regulati "an action shall not be dismissed at the plaintiff's instance save u Court and upon such terms and conditions as the Court deems pro The Federal practice is that a dismissal without prejudice sho

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unless the defendant will suffer some prejudice other than the 49 l

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l second lawsuit. It is an insufficient grou,d for denial of the motion because plaintiff may obtain some tactical advantage by dismissal. Substantial prejudice to O

the defendant should be the test. Where substantial prejudice is lacking, the district coun should exercise its diwretion by granting a motion for voluntary dismissal without prejudice. 5 Moore's Federal Practice 541.05(2) at 41-72. In Le Compic v.

Mr. Chips, Inc., 528 F.2d 601 (1976), the Court stated the basic purpose of Rule 41(a)(2) is to freely permit the plaintiff, with court approval, to 5 oluntarily dismiss an action so long as no other party will be prejudiced. It allows the plaintilf to withdraw his action without prejudice to future litigation and permits the court to attach conditions to the order of dismissal thereby preventing defendants from being unfairly affected by such dismissal. The case further held that the fact that a nonsuit may give the plaintiff some precedural advantage in the same forum is not grounds for refusing to allow dismissal.

It is abundaatly clear that the Appeal Boards favor following the Federal practice in Commission proceedings. For example. see North Coast, supra, at i 135, w here it was stated that the possibihty cf an applicant refihng an application with attendan: amenses for intervenors does not provide a basis for depaning from the usual rule that a dismissal shotJd be without prejudice.

In applying the above criteria to the subject proceeding, the motion for with-drawal without prejudice should be granted. PG&E has provided adequate justification for its proposed course. The Cahfornia " nuclear safeguard laws" make it impractical for applicant to proceed with the project. It is earnestly seeking to have them overtumed, carrying the matter of their constitutionality to the United States Supreme Coun. When a definitive answer will be given is unknown at the present time. The Supreme Court should come down with a decision in the case by the end of its current term but it could call for funher hearing. Should the Supreme Coun affirm the Ninth Circuit Court of Appeals, the impediment to construction remains. Whether the recently passed Nuclear waste Policy Act of 1982 will ultimately result in the development of a " proper means" for the disposal of high-level nuclear waste that the California State Commission w ould find satisfies the State law is so speculative that its consideration is unwarranted.

Should the California statutes be overturned, PG&E would not have a need for the Stanislaus facility until the year 2001 because of a continuing drop in the demand for power. It has no intention of se-king a construction permit prior to 1993. Considering that the need for the facility is so far off, applicant has exercised its judgment and has concluded there is no purpose to continuing with a very expensive proceeding that does not bear a reasonable relationship to its require-ments. Applicant's proposed termination of the proceeding is appropriate to the circumstances in which it finds itself.

The grounds intervenors set forth for denying the motion are not meritorious.

NCFA and Cities want to keep the proceeding going. Rey assen they do not w ant to see the matter suspended for several years and then be confronted with the 50 G"

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O refiting of the application and the coincident cost of beginning again sion's investigation into PG&E's alleged anticompetitive activities. Interven have experienced extensive costs in connection with their participa proceeding and perceive PG&E's motion as a ploy to remove it activities from the Commission's scrutiny while leaving open the opportu renew its application at a time most advantageous to PG&E.

No convincing evidence has been submitted to establish that PG&

course is other than a practical solution to its situation rather than a de and compromise the adjudicatory process. Intervenors' concern ab i

with a refiled application w ith attendant burdens, under existing law and p provides no basis for denying the motion, without prejudice. An may sufter, recognized as such under the law, can be overcome appropriate compensating condPions, allowing the withdrawal Contrary to the position of the opposing intervenors, the factual motion for withdrawal is sufficiently documented. The matter of the nuclear laws, as a barrier to proceeding with the project would prob to support the requested termination of the proceeding and there As to not needing the pow er from the Stanislaus facility until the y their current status.

supported in part by the March 2,1981 Shackleford affidavit James 11. Malinowski of May 3,1982 made under the penalty of per knowledgeable as to applicant's situation, Shackleford being th chief operating officer of the corporation and Malinowski superv generation planning and responsible for assessment of conv generationtechnologiesasresourceexpansionoptions. Applican sents the latter to be in charge of the schedule the deponent discusses i

quibble with the form of the Malinowski st practice. Applicant is willing to revise the format. The matter consequence. Applicant should resubmit the statement in a revised forming to Federal practice. Admittedly the statements of S nature but considering their purpose they are adequate. It is unnecessa behind the documents through cross-examination or deposing of t NCPA and Cities would do. The filing of an application to constru pow er plant is w holly voluntary. The dec l

whether its decision is sound.' PG&E has given as a basis for withd I

udered I DWR viewed the pomtwhty of PGAE building a nuclear facility to be highly r h as to m.ke it unlikely the condition of the money market and apphcant's financial condition to be suc for PG&E to invest m a new nuclear project.

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need for the facility within a reasonable period of time and that to continue with the proceeding now would be unduly costly and unnecessary. No useful purpose would be served for requiring an analysis to be made to determine the soundness G

what is its business judgment. To attempt to go back by way of deposition, cross-examination or an evidentiary hu.dr.; to evaluate the validity of the data it relied upon would be an unjustified time-consuming and costly exercise. What required to be done is to compensate intervenors, for any legally rFognized h done to them, by appropriately conditioning the withdrawal order.

NCPA and Cities, in seeking to have applicant press on with the proceeding, claim that accepting applicant's time frame of the need for a construct;on permit b 1993 and an operating license by 2001 it would be appropriate to continue with discovery to meet those dates. Concededly the licensing process is not as spee times as we would like, but it does not require a continuous proceeding where discovery started in 1977, for obtaining a construction permit by 1993 and an operating license by 2001. It is applicant's option on a new application w he pursuant to 10 CFR 50.33a(b) it shall submit the information requested by t Attorney General for antitrust review 9 months or 36 months prior to submitting that ponion of the application dealing with the con truction of the facility. It is for intervenors to make that decision for applicant. Antitrust review can be had simultaneously with the handling of that part of the application dealing with the construction permit. Intervenors by their proposal would extend the time for obtaining a construction permit well beyond that required. It would be unwar.

ranted and harmful to the adjudicatory process.

The record is convincing that applicant intends to build the Stanislaus Nuclear Project when its conditions for doing so are met. Its position is not view ed a signiricantly different from its representations to the U.S. Supreme Court as known by the opposing intervenors. PG&E's position on going ahead with the facility presents no basis for denial of applicant's motion under existing law.

As part of its motion for withdrawal PG&E stated " was agreeable to a program that preserves existing document production effons ior a reasonable period and submitted a proposed methodology to preserve the discovery efforts in the proceeding. The parties in their written responses differed with one anoth approach submitted.

At the oral hearing on September 21,1982 PG&E stipulated to the terms of a proposed order concerning preservation of discovery documents should w i al be authorized. The terms of the proposal are attached as an appendix. They provide for applicant to advise the parties by no later than 3 years from the order of its intentions as to Stanislaus. If Stanislaus is to be cancelled, the orde for prewrvation will terminate. If construction of Stanislaus is to be advance pames are to be notified, and should it be delayed, any party may seek a modification of the order. The ternts for preservation are sufficiently explicit and comprehensive so as to provide an effective means for preserving the current 52 a

O of discovery, in which all of the panies have heavily invested money, time and effort. The comments of NCPA and Cities show no significant defect in the methodology to establish it as unworkable, unfair or unsound. It provides a reasonable method for preserving the fruits of discovery for the benefit of all of the parties and is adopted as a condition for permitting the withdrawal of the apolica-tion without prejudice. Should the panies wish to modify the obligations created by the preservation requirement to better serve their needs there is a provision that it can be done by stipulation. The obligation for preservation ard retention of documents is made applicable to all of the panies in order to effectively preserve the status quo in the discovery process. !! cannot only be made applicable to PG&E as it would then become a meaningless, unjust exercise.

NCPA and Cities seek the imposition of additional conditions for withdrawal in order to compensate them for the alleged harm termination will cause.

They seek the imposition of a condition requiring PG&E to pay costs and expenses including attorney fees. Federal court practice permits, as a condition for voluntary dismissal prior to judgment, requiring a plaintiff to pay defendant's litigation costs as an equitable means to protect a defendan' gainst unnecessary expense while preserving the plaintiff's right to institute a subsequent suit on the same cause of action. 5 Moore's Federal Practice,541.0511] at 4l-53 and 41-54.

In Nonh Coast the Appeal Board left open the question of whether the Commis-sion is authorized to condition withdrawal upon payment of the opposing panies' expenses. In footnote 11 at page 1135 it stated; We note : hat the case at bar did not entail lengthy discovery, or proceed through the trial stage. It hardly got off the ground. We leave open the question whether something short of a dismissal with prejudice, such as conditioning withdrawal of an application upon payment of the opposing parties' expenses might be within the Commission's powers and otherw ise appropriate where the expenses incurred were substantial and intervenors developed information w hich cast doubt upor. the ments of the application.

NCPA and Cit i have not demonstrated that they have been prejudiced to a degree to warrant payment of their expenses because of the granting of the motion to withdraw, even if the Commission were authorized to do so. Intervenors hase incurred substantial expenses in a lengthy discovery process but the proceeding never even progressed through the discovery stage. It was newhere near approach-ing a determination on the merits nor had intervenors developed information w hich cast doubt upon the merits of the application. Furthermore, they received value for the expenses incurred. Discovery documents will be preserved as a condition to withdrawal. Should applicant proceed with another application they will be available. Also, intervenors have made use of the discovery documents in other proceedings. No factual basis has been presented where intervenors would be entitled to the payment of their litigation expenses.

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9 Under the circumstar.ces of the proceeding there is no need to determine w hether the Commission has the power to authorize the payment of litigation apenses as a condition of permitting withdrawal of an application without prejudice, but it would appear not. De Commission is a body of limited powers. Its enabling legislation has no provision empowering it to require the payment of a pany's costs and expenses. The regulations the Commission has promulgated does not provide for it. It has no equitable power it can exercise as courts have. The concept is 7

foreign to the Commission's adjudicatory process.

Opposing intervenors further seek as conditions to termination the requiring of all parties to agree: (1) that any document produced in this proceeding shall be usable in any other proceeding without concession of the admissibility of such document; and (2) to the transfer of all discovery and the record of this proceeding to any enforcement action the Commission may order in PG&E's Diablo Canyon docket. Any relief to be granted to intervenors should be to overcome prejudice to them resulting from the ordering of termination of the proceeding and being faced with another one in the future. Requiring the preservation of discovery documents will afford intervenors the protection they require. The extraordinary relief sought by NCPA and Cities bears no reasonable relationship to any harm they might suffer through withdrawal of the application without prejudice and the institution of a new proceeding. He conditions they seek of making the documents and record of this proceedHg available for inclusion in other cases are unjustified and the request must be denied. His proceeding is not part of any other. The results intervenors seek should be pursued in other forums.

The only matter remaining that is undecided is DWR's Octooer 5,1981 Motion for Reprimand and Censure. DWR states it made the motion largely in an effon to get PG&E to comply with the orders of the Licensing Board and to obtain documents required in discovery. In its belief that there will be no hearing on Stanislaus in the near future there is not going to be any further document production in this case for several years. DWR views the motion now to be principally a matter between applicant and the Nuclear Regulatory Commission.

Staff continues to be of the position that it initially took, that the motion should be denied as being without substance. NCPA and Cities believe that applicant willfully and persistently violated the Licensing Board's orders, which is a matter of such gravity as to require immediate and unequivocal action by the Commis-sion, regardless of the disposition of the motion to withdraw. They assert applicant should be at least required to produce all documents which it was ob!igated to produce from the beginning of its self-imposed moratorium on discovery in September,1980, to the date of any other order in this matter issued by the Presiding Judge, for which PG&E should bear the cost.

He law does not require the doing of vain things. He party that submitted the motion does not want to pursue the matter. Staff has always opposed the motion.

-5 He proceeding is being terminated and no related discovery can be expected for

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quite a few years. Applicant's noncompliance with discovery orders was previous-ly raised by DWR with the Licensing Board and it then came out with its order of

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July 30,1981 requiring that the pmies resume discovery promptly in accordance with the Board's orders and directives. Applicant's conduct for only a very short period was not under consideration by the Licensing Board. Considering all of these circumstances it would be a waste of time and effort to resurrect the matter in order to adjudicate it. No useful purpose would be served by it. The motion is therefore dismissed.

In ruling upon a!! cf the foregoing it was taken in;o consideration DWR had entered into an agreement with PG&E so that intervenor has a ! css urgent need for antitrust relief. The terms of the agreement were mt made known.

ORDER Upon consideration of all of the foregoing, it is hereby ORDERED:

1. That applicant's motion for the withdrawal of the application is granted, without prejudice, subject to the condition that it comply with the provisions of the attached Appendix that sets forth terms and conditions for the preservation of discovery documents and is incorporated herein by reference;

2. That in addition, should any party fail to comply with the terms and conditions for the preservation of documents set forth in the Appendix and incorporated herein, that party shall forfeit all rights related to the preservation requirement and cannot seek enforcement of any of its terms and conditions against any other party;

3. That the hiotion to Reprimand and Censure applicant is dismissed; and

4. That the proceeding is dismissed.

FOR Tile ATOh11C SAFETY AND LICENSING BOARD h1orton B. h1argulies ADh11NISTRATIVE LAW JUDGE Dated at Bethesda, h1aryland, this 19th day of January,1983.

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[ PROPOSED] ORDER CONCERNING PRESERVATION OF DOCUMENTS For the purpose of preserving documentary evidence that may be relevant to an antitrust review of Unit No 1 of the Stanislaus Nuclear Project, the parties are ordered to preserve evidence as follows:

1. DEFINITIONS l.1 " Applicant" means Pacific Gas and E!ectric Company.

1.2 " Central Files" means those documents of a Party maii.tained under a common classification scheme that is used throughout the Party's organiiation or among several discrete units of that Pany.

1.3 " Designated Documents" means documents, other than documents con-tained in Designated Files, that have been designated by one or more other Party for production in this proceeding but which have not yet been produced.

l.4 " Designated Files" means files that have been designated by one or more other Pany for production in this proceeding, irrespective of whether or not its contents have yet been produced. " Designated Files" includes files created after document screening and having substantially the same number, title, or topical dewription as a Designated File.

1.5 " Documents Produced" means documents that have already been made available for copying by other Panies in this proceeding. Documents are not

" Documents Produced" merely by virtue of having been made available for l

preliminary screening.

1.6 " Eliminated Documents" r~ans (a) in the case of Central Files, docu-I ments contained in files other than Designated Files; and (b) in the case of Private I

Files, documents that have been reviewed by other Panies and determined not to be required for production.

1.7 "Intervenors" means the State of Califomia Department of Water Re-I f

sousceu DWR), the Nonhern Califomia Power Agency and its members (NCPA),

and tht Cities of Anaheim and Riverside (Cities).

1.8 " Private F:::s" means all documents in the possession, custody, or control of a Pany, its officers, employees, or agents, other than Central Files. " Private Files" does not include documents in custody of counsel not employed by the Party.

l.9 " Party" means Applicant, Intervenors, and Staff.

1.10 "Stail" means the staff of the Nuclear Regulatory Commissioa.

1.1I "1977 Order" means the " Amended Adopted Order Regardmg Preserva-s tion of Documents " adopted by the Atomic Safety and Licensing floard on September 9,1977.

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II. PRESERVATION AND RETENTION OF DOCllMENTS 2.1 Pending further order of the Commission or its designated presiding officer, all Parties shall preserve and retain documents as provided herein.

2.2 Documents contained in Central Files shall be retained in accordance w ith the 1977 Order except as follows:

(a) Documents produced need not be retained.

(b) Documents in Central Files but not contained in Designated Files need not be retained.

2.3 Documents not presently contained in Central Files that would, in the ordinary course of businc ss, be placed in Central Files shall be retained, provided they would, in the ordinary course of busincss, be filed in Designated Files.

2.4 Documents in Prisate Files shall be retained in accordance with the 1977 Order except as follows:

(a) Documents produced need not be retained.

(b) Eliminated documents need not be retained.

(c) Documents generated after the date of this order, which would not, in the ordinary course of besiness, be sent to Central Files, need not be retained.

2.5 Notwithstanding the foregoing, any document which would have been produced but for the determination of a Pany not to produce it and instead to make a claim of privilege for the document, shall be retained. This requirement includes documents for which no claim of privilege has ever in fact been made.

Ill. GENERAL PROVISIONS 3.1 The Parties may. by stipulation filed with the Commission, modify the obligations created by this order.

3.2 Within three years of the date of this order, or earlier if it so chooses.

Applicant shall file with the Commission a verified statement of its then-existing plans for the construction of the Stanislaus Nuclear Project, including the projected dates for filing an application for a constniction permit and for full operation.

Should the scheduled operating date for the Stanislaus Nuclear Project become any date earlier than January 1,2001, Applicant shall promptly file a verified statement to that effect, setting forth its then-existing plans.

3.3 Should a statement filed by Applicant pursuant to the preceding paragraph state that applicant has eliminate @e Stanislaus Nuclear Project from its construe-tion schedule and future generaq, resource plan, the obligations of all Parties pursuant to this Order to retain documents shall be terminated 60 days after filing and service of said report, unless the Commission or its presiding officer otherw ise 2

orders.

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O 3.4 If the statement filed by Applicant pursuant to paragraph 3.1, above.

• 's shows the Stanislaus Nuclear Project having an operation date beyond January 1, 2001, any pany may seek a modification of this order.

IT IS SO ORDERED.

ATOMIC SAFETY AND LICENSING f

BOARD 1

i Morton B. Margulies ADMINISTRATIVE LAW JUDGE f

Dated at San Francisco, Califerma, this 22nd day of September,1982.

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Cite as 17 NRC 59 (1983)

LBP-83-3 UNITED STATES OF AMERICA 7-NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Defora Admin lstrat!va Judges:

Peter B. Bloch, Chairman Dr. Jerry R. Kline Mr. Glenn O. Bright in the Matter of Docket Nos. 50-440-OL 50-441-OL (ASLBP No. 81-457-04-OL)

CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, Units 1 & 2)

January 28,1983 The Licensing Board denies applicant's motion to reconsider the Board's decision denying sumraary disposition c,f the quality assurance contention.

SUMMARY

DISPOSITION: SEPARATE AND DISTINCT STATEMENT OF MATERIAL FACTS The regulatory requirement that a separate and distinct statement of matenal facts must be filed by intervenors is mandatory. When such a statement is not filed the Board must accept the facts contained in the separate and distinct statement of material facts filed with the motion for summary disposition.

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SUMMARY

DISPOSITION: MOVANT'S FILING MUST ESTABLISIl ABSENCE OF GENUINE ISSUE Even if the respondent fails to file a separate and distinct statement of material facts in response to a motion for summary disposition, the motion must be denied unless the motion establishes the absence of a genuine issue of material fact.

RULES OF PRACTICE: RECONSIDERATION (TIMELINESS) l If a party suffers a harm from incomplete answers to its interrogatories, it may l

not await a Board decision on the merits of a motion for summary disposition before calling the harm to the Board's attention. Permitting a party to asscrt such a deficiency as a ground for reconsideration of the Board's decision is tantamount to l

providing it two opportunities to prevail on the merits.

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MEMORANDUM AND ORDER l

(Reconsideration: Quality Assurance)

Cleveland Electric illuminating Company, et al. (applicant) has asked us to reconsider our decision of December 22,1982 (LBP-82 114,16 NRC 1909) and to grant summary disposition of the quality assurance contention, pursuant to the motion filed by the Staff of the Nuclear Regulatory Commission (staff).' We have decided to deny applicant's motion.

I.

FAILURE TO FILE A SEPARATE STATEMENT OF MATERIAL FACTS A.

Applicant's Allegation Applicant's first ground for reconsideration is that Sunflower Alliance. Inc., et al. (Sunflower) did not file a "r.eparate, short and concise statement of material facts in response to its summary disposition motion, that such a state-ment is required by the regulations, and that the failure to file such a statement should result in a grant of summary disposition.2 Staff supports this argument, 8 Applicant's Motion for Reconsideratim was filed on January 6.1983. Staff's monon was file October 29.1982. The Memorandum and Order decidmg the summary disposition monon was issued on December 22,1982.

2 Monon for Reconsideration at 2-4.

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funher elaborating that the language of 10 CFR 92.749(a)is mandatory, requiring that all the material facts set forth in staff's own " separate and concise statement of material facts"- filed in support of its motion, should be deemed to be admitted.)

B.

Intervenors' Response Both Ohio Citizens for Responsible Energy (OCRE) and Sunflower have filed responses to applicant's motion.' OCRE's principal response conceming the need for a separate statement of material facts is to characterize the requirement as a procedural technicality that the Board may overlook because of the importance of the quality assurance issue. It cites Kansas Gas and Electric Company and Kansas City Power and Light Company (Wolf Creek Generating Station, Unit No.1),

ALAB-279,1 NRC 559,576-77 (1975) for the proposition that the Board may be lenient with Sunflower's lawyer's technical deficiency because he is "new to the field."

Sunflower relies on more general principles, urging the Board to consider itself to be more than just an arbiter blandly calling balls and strikes.5 It also urges us to use our authority to define issues for trial.*

C.

Analysis We are not satisfied by the position of any of the parties. The staff correctly asserts that the wording of 92.749(a) is unambiguous and controlling. It requires l

that "the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."7 Because of the specific wording of the regulation, we cannot accept OCRE's citation of WolfCreek, a case involving application of regulations concerning the specificity of contentions, a procedural requirement that is not accompanied by a specific regulatory penalty. Similarly, we cannot accept Sun-flower's citation of general prirMples in the face of an express regulatory require-ment.

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3 NRC Staff's Answ:r Supporting Applicants' Motion for Reconsideration. January 19. 1983 (Supporting Ans*er) at 2-3.

4 OCRE Reply to Apphcants' Motion for Recon 6deration. January 21.1983 (OCRE Repip and Sunnower Bnef m Opposition to Apphcant's Metion for Reconsideration. January 21.1983 (Sunnos-er's Oppositiont l

S in the Maner ofCleveland Electruc illuminanng Company. et al (Perry Nucicar Pow er Plant. Units i and 2). ALAB-443. 6 NRC 741 (1977L

• In the Maner of Pactfic Gas and Electric Company (Diablo Canyon Nuclear Poser Plant. t' nits 1 and 2), ALAB-334. 3 NRC 809 (1976L 7 Emphasis added by the staff 61 i

O We also are troubled that Sunflower's counsel has placed this Board and his client in this posture. The regulations are clear. All that is required is to read them.

OCRE's representative, who has no formal credentials as a lawyer, has demon-strated her abi!ity to read the regulations and to file a separate and concise statement of material facts. We believe that Sunflower's counsel should be as able.

In this case, the penalty for failing to follow the procedural regulations is not costly to Sunflower. The standard we must apply may be distilled from a previous Perry decision, by the Appeal Board, as follows:

Even if no pany opposes a motion for summary disposition, the movant's filings must still estAlish the absence of a genuine issue of material fact.'

It is clear to us that an intervenor that does respond to a motion for summary disposition but that fails to file the required " separate statement" should be no worse off than one who fails to respond at all.

We must therefore examine the relevant " statement of fact" that we are required to deem to be true. That statement is:

Discrepancies and noncompliances that have been identified by the staff since the applicants' correction of the deficiencies that led to issuance by the staff of the immediate Action Letterdated February 8,1978 are neither the result of a breakdown in applicants' construction quality asst:rance program nor related to failure to correct the earlier deficiencies in construc-tion practices and QA [ quality assurance] at the Perry site. Affidavit at ".9 and 10 '

The affid'avit staff refers to does not expand on the grounds found in its Statement. The affidavit states that there have been discrepancies and noncom-pliances but that none have been viewed by the staff as "resulting from a bre tk-down in the Licensee's construction QA program" and "all were or are being resolved by the QA program."

As we pointed out in our Summary Disposition decision:

[S]taff's conclusion is not buttressed by supporting facts and reasons and does not negate the existence of a pnuine issue of fact. Even at trial, were we to accept such unsupported staff statements we would be abrogating our responsibility as judges and substituting the staff's judgment for our own.

On ultimate issues of fact, we must see the evidence from which to reach our own independent conclusions."

Staff's present support for reconsideration of our decision indicates a lac' of understanding for our position, even though we explained it quite carefully in the just-cited passage. Therefore, let us further explain that the record contains facts concerning the staff's doubts about applicant's ability to identify ar.d correct 8 Cleveland Electric Illuminarma Company, er al. (Perry Nucl ar Power Plant. Umts I and 21.

AL.AB-443. 6 NRC 741,753 54 t1981L

' Staff's Monon for Summary Dispounon at 4.

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30/d. at Affidavit 2-3.

H Summary Dispoution at 16 NRC 1916.

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e problems in a timely manneria but it does not contain the staff's reasons fcr concluding thtt these problems are not serious.

To the staff, this record deficiency may seem a techr.icality. To the Board, it is crucial. The staff may know why the alleged deficiencies are not serious. The Board has no notion at all of why this situation is not extremely serious. An evidentiary hearing is a necessary, and potentially highly effective method of resolving such ambiguities. In particular, we will be able to explore whether staff's investigation of the facts and its reasons for accepting the adequacy of applicant's quality assurance program are adequate to persuade the Board.

II. LACK OF RELATIONSillP TO THE 1978 STOP WORK ORDER Applicant, supported by staff, argues that intervenors have failed to connect the recent quality assurance difficulties related to electrical contracting, to the initial x

difficulties, related to concrete.83 We consider this to be an overly literal interpreta-tion of the causality between the initial difficulty and the more recent one.

Although one relates to concrete and the other to electrical contracting, each represents a possible inability of managemer.t to find and cure a quality assurance problem that is sufficiently serious that management should be aware of it.

Our conclusions about the causal connect;on have been strengthened by reading the investigation report presented to us by applicant in order to complete the record. That investigative repon clearly portrays the relar aship between the initial QA problem ar.d the c!cctrical prob'.em. The investigaave report indicates that licensee's " overview program" was instituted subsequent to the NRC's Immediate Action Letter of February 1978. Apparently, the "nonconformance trend analysis system" referred to in paragraph 7 of the 1978 Ixtter'5 and the

" overview system" referred to in 1981 are the same system. It is that overview program that appears to have failed to detect the Comstock problems. Indeed, the investigators:

informed the [ applicant that it].. had failed to assure that L. K. Com-stock had adequately implememed the Quality Assurance Program at the 12 Summary Disposition at 16 NRC 1915, citing letter from the staffs Regional Administrator for Region III to Cleveland Electnc illuminating Co npany Ouly 13,1982) at 2.

'3 Applicant's Motion at 3-5; Staffs Support at 3-4.

14 Applicant filed the investigative teport, attached to a letter from Region III to Cleveland Electne Illummating Company (September 27.1982). in order to complete th record by correcting allegedly misleading documents presented by Sunflower in its opposition to summary disposition. Having read these documents, we do not find that the record w as misleading or that Sunnower erred by not fihng these documents. Consequently, applicant's reason for filine the document is not sustained and our discussion of the document, in the text, is a supplementary ren on on mhich we did not rely for our conclusion.

'5 Summary Disposition at 6. citing the February 8.1978 letter in x,hich the staff confirmed apphcant's stop-work order.

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O Perry Site by not conducting in-depth reviews to investigate the unsatisfactory and below standard performance rating identified in the AROQPE's [ Assessment Reports of Quality Assurance Program Effec-i tiveness] and CPR's [ Contractor Performance Reports) during 1931. Fur-ther,[ applicant].. had failed to identify the findings of this investigation independent of the NRC.'6 Consequently, we find a clear logical relationship between the Comstock allega-tions and the admitted contention.

We also would admit the Comstock allegation at the summary disposition stage regardless of whether it were causally related to the initial contention. Contentions set the stage for discovery. They limit, to some extent, the scop of discovery.

However, if an intervenor discovers a genuine issue of fact that reflects on plant safety, then it can establish a genuine issue of fact for trial. The principle is nmilar l

to modern federal pra;tice in which pleadings are considered amended as the p cof I

shifts.

A less flexible rule of piactice would be inappropriate for our proceedings. To throw out a genuine issue of fact, uncovered during discovery, on technical i

grounds, would be antithetical to the Commission's role of pretecting the public

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and antithetical to the Board's role of addressing legitimate grievances raised by an l

intervenor during litigation.

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We note that staff charact:rizes our action on summary disposition as" admitting l

four new quality assurance issues." We disagree. What we did i. the summary disposition decision was to determine what genuine issues of fact existed. What we admitted to hearing were genuine issues of fact that were causally related to the admitted contention and that arose in the course of discovery on the admitted contention. Staff incorrectly implies that we have admitted new contentions.

111. LIMITATION OF INTERPRETATION Applicant argues that the only genuine issues of fact relate to the quahty assurance program of Comstock, a single contractor. We disagree, accepting OCRE's interpretation of our decision, as follows:

[T]he testimony identifies some of the basic causes of QA troubks, among them an overreliance by the utility on its contractors for maintaining a QA program and insufficient utility QA staff to control contractor activities.

These are precisely the matters the Licensing Board has, rightly, identified for litigation."

On the other hand, we do not believe applicant need be concerncd that quality assurance of all contractors' performances is as ye at issue. What is at issue is the a

16 Ir.spection Report at 95.

D OCRE Reply at 9.

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o "nonconformance trend analysis system" or " overview program," including the use of in-depth reviews and efficient follow-up to cure problems identified in AROQPEs and CPRs. In the first instance, we are interested in the application of these systems to Comstock. In addition, we are interested in the use of these systems to control the quality of work of other contractors. At present, we are not interested in individualinstances of nonconformances. Those will be of concem to tis only if we find that management's role in QA has been sufficiently suspect to require that we descend to that further level of detail. Evidence concerr.ing nonconformances will be admissible only to the extent that they can be related to the admitted issue, concerning management's role in QA.

This additional interpretation is not intended to supplant the issues we admitted in our Summary Disposition decision. Our review of the wordmg of those issues failed to disclose any erroc. Our further explanation is intended only to aid the parties in interpreting our original language, which is still controlling.

IV. SUNFLOWER SELECTED MISLEADING PORTIONS OF DOCUMENTS Applicant informs us that a portion of the document showed t' us by Sunflower indicates that the staff concluded that "a significant breakdown in the electrical contractor's quality assurance had not occurred."'8 He urges that, therefore, we were misled and should reconsider.

On balance, we think it would have been preferable if the entire document had been supplied to us. However, we were not misled. We knew that staff had been satisfied. The staff affidavit informed us of that, and portions of the Region Ill's July 13,1982 letter to applicant also indicated staff satisfaction with applicant's performance. We are grateful to applicant for bringing this new information to our attention; however, for reasons discussed in Section 11, above, staff's con-l clusions on this mr er are not determinative of the summary disposition motion.

V.

SUNFLOWER IMPROPERLY FAILED TO REVEAL COMSTOCK I

ISSUES IN DISCOVERY l

Applicant argues that Sunflower failed properly to answer interrogatories 27 and 28 in its first set of interrogatories, served on October 15,1981, and that it therefore was unfairly surprised by Sunflower's reliance on these issues. Our l

reading of the First set of interrogatories suggests that there is some validity to this l

argument. However, we approve of OCRE's argument that:

.J is Region III's September 27 letter to applicant.

See Summary Disposition at 16 NRC 1915.

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O Neither staff nor applicant should have been surprised by SunDower's answer. Sun 0ower used, as basis for its response, the Commission's p-inspection Reports. Sunflower has, from the beginning of this proceeding until the present, relied upon these Inspection Reports. Sunnower in-dicated this in its intervention petition. Both of its motions to expand Issue

1. 3 included references to Inspection Reports. Applicants are certainly aware that Sunnower's counsel receives these repons from the NRC's Region Ill.

In fact, applicant apparently anticipated SunDower's use of Inspection Reports. In their Third Set of Interrogatories and Request for Production of Documents to Sunflower, dated September 30,1982, Interrogatory #5, applicant asks for information within SunHower's knowledge involving any QA or canstruction deficiencies at Perry. AppFeant clearly states that "Sunnower need not restate information contained in applicant's reports to the NRC or to the NRC's inspection repons." Thus, SunGower's " failure" to identify the Comstock problems in its discovery responses is no failure at all, but rather is consistent with applicant's instructions.

8 We do not think that applicant can legitimately claim surprise that a Notice of Violation that called into question its " overview program" would be relied on by Sunf'awer. Its surprise appears to be less from Sunflower's reliance on th,is Violation than from the Board's acceptance of the relevance of the violation. It could hardly have been unaware of the Notice, which does not appear to have gained anonymity from being among countless other like notices.

Nevertheless, we have considered the information submitted to us by applicant and have discussed it in Section 11, above. Even had we permitted a reply, we would not have changed our opinion.

We note that applicant could have brought this " surprise" to our attention before we issued our decision on Summary Disposition. Though our decision may have appeared more rapidly than is customary for such decisions, applicant should hav been aware that we ofter. act with comparable speed. Within the time we tcok to decide the issue, applicant could have telephoned us to tell us it ought to have the right to reply. By waiting, applicant gained the advantage that we might have decided Summary Disposition in its favor, without having a complete investiga-tive report brought to our attention. The effect of applicant's delay, w hich no dou was inadvertent (though applicant has not said so), is that applicant is now asking for a second crack at bat when one crack would have done. We also note, without l

l M OCRE's Reply at 5-6.

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imposing any immediate sanction, that applicant exceeded the 10-day limitation that ordinarily should apply to motions for reconsideration.2' Consequently, we consider the claim of surprise to be without merit and to have been untimely, as well.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 28th day of January,1983, ORDERED Cleveland Electric illuminating Company, er al.'s January 6,1983 " Motion for Reconsideration of the Licensing Board's December 22,1982 Memorandum and Order on Summary Disposition of Issue No. 3, is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE Glenn O. Bright ADMINISTRATIVE JUDGE i

Bethesda, Maryland 4

%.3s 21 See Consumers Power Company (Big Rock boint). unpubhshed (December 7.1982). at I (the doctnne of repose ordinanly requires motions for reconsideranon to be filed within 10 days of the decision for which reconsiderauon is sought).

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