ML20112D861
| ML20112D861 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 01/11/1985 |
| From: | Reynolds N BISHOP, COOK, PURCELL & REYNOLDS, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | |
| References | |
| CON-#185-053, CON-#185-53 OL, NUDOCS 8501140527 | |
| Download: ML20112D861 (24) | |
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UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION lL/
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E, BEFORE THE ATOMIC SAFETY AND LICENSING APPENL' BOARD.
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Docket Nos. 50-445 and A /
TEXAS UTILITIES ELECTRIC
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50-446 V( _
COMPANY, --et al.
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(Application for
. (Comanche Peak Steam Electric
)
Operating Licenses)
Station, Units 1 and 2)
)
APPLICANTS' RESPONSE TO APPEAL BOARD ORDER OF JANUARY 2, 1985 Nicholas S.
Reynolds Malcolm H._Philips, Jr.
Bishop, Liberman, Cook, Purcell & Reynolds 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 (202)857-9817 January 11, 1985 8501140527 850111 DRADOCK05000g4y
.y TABLE OF CONTENTS Page TABLE OF AUTHORITIES.
11 I.
INTRODUCTION.
1 II.
BACKGROUND.
2 III.
THE LICENSING BOARD'S DECEMBER 18, 1984 DECISION IS APPEALABLE AS A MATTER OF RIGHT 8
IV.
ISSUES RISING OUT OF THE LICENSING BOARD'S DECEMBER 18, 1984 DECISION WARRANT DIRECTED CERTIFICATION.
10 V.
CONCLUSION.
17 i
TABLE OF AUTHORITIES Page C ASES:
Sholly v. NRC, 651 F.2d 780 (D.C Cir. 1980) 11, 14 AEC AND NRC ADJUDICATIONS:
Arizona Public Service Co. (Palo Verde Nuclear Generating Station Units 2 and 3), ALAB-742, 18 NRC 380 (1983).
13 Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1,
2, 3 and 4),
ALAB-577, 11 NRC 18 (1980).
14 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC (slip op. December 26, 1984).
~7........
4 Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-597, 11 NRC 870 (1980) 8 Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469 11 (1981).
Houston Lighting and Power Co. (Allen's Creek Nuclear Generating Station, Units 1 and 2),
8, 10 ALAB-301, 2 NRC 853 (1975).
Kansas Gas and Electric Co.-(Wolf ~ Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408-11 (1976).
1.....-..
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788,-20~NRC (October 31, 9
1984)
Metropolitan Edison Co. (Three Mile Island, Unit No. 1), ALAB-697, 16.NRC-1265 (1982).
9 Northern States Power Co..(Prairie Island.
Generating Plant, Units.1 and 2), ALAB-252, 14 8~AEC 1175 (1975) 11 1
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O Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 (1978).
12 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-405, 5 NRC 1190 (1977) 11 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478 (1975).
11 Pacific Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478 (1975).
11 Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-54, 20 NRC (December 18, 1984).
1, 2,
4, 5,
6, 7,
8, 9,
10 Texas Utilities Electric Company (Comanche. Peak Steam Electric. Station, Units 1 and 2), LBP-83-60, 18 NRC 672 (1983) 4, 5,
7 Texas Utilities Electric Company (Comanche Peak-Steam Electric Station, Units 1 and 2), LBP-83-43, 18 NRC 122 (1983) 3, 4, 7,
12 Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Units.1 and 2), CLI-81-24, 14 NRC 614 (1981) 8, 15 Toledo Edison Co.-(Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752 (1975). '
R, 13 iii
4 i
~ REGULATIONS:
10 C.F.R. I 2.714(a)(1) 13 l
10 C.F.R. $ 2.754 3,
6 10-C.F.R. $ 2.760'(a).
8, 12, 13, 15 l:
10 C.F.R. $ 2.762(a).
y 10 C.F.R. Part 50, Appendix B 6,
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!e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
Docket Nos. 50-445 and TEXAS UTILITIES ELECTRIC
)
50-446 COMPANY, et al.
)
)
(Application for
- - - ~ ~
(Comanche Peak Steam Electric
)
Operating Licenses)
I -
Station, Units 1 and 2)
)
APPLICANTS' RESPONSE TO APPEAL BOARD ORDER OF JANUARY 2, 1985 Applicants seek Appeal Board review of a Licensing Board, decision that we believe has the indicia of finality to warrant
. appellate review as of right.
Even were that not the case,
-discretionary review is warranted and.necessary because the decision involves legitimate questions - as to whether - the Licensing Board has adhered to the directions of the Commission-itself, rendered on its own motion, just two years ago in this very, proceeding.
4 I.
INTRODUCTION t
On December.18, 1984, the presiding Atomic Safety and Licensing Board (" Licensing Board")fissued-a decision ~ titled-Memorandum (Concerning Welding Issues), LBP-84-54, 20 NRC
(" Welding Decision"), which the Board itself referred to as a
" Partial Initial Decision" (see Welding Decision at 3.and 19).
Pursuant to'10 C.F.R.'i-2.762(a), Texas Utilities Electric LCompany, et al., - (" Applicants") filed a' notice of appeal on
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December 28, 1984, in the form of exceptions to the Licensing Board's decision.
By Order of January 2, 1985, the Atomic Safety and Licensing Appeal Board (" Appeal Board"), noting its doubt as to whether the Licensing Board's decision was now appealable, directed Applicants to show cause, by January 11, 1985, why their appeal should not be dismissed.
As set forth below, Applicants maintain that the Licensing Board's decision is now subject to appeal as a matter of right.
In the alternative, Applicants request that the Appeal Board exercise its discretionary review authority pursuant to 10 C.F.R. 2.718(i).
II.
BACKGROUND The Licensing Board's December 18, 1984 Welding Decision addresses allegations of improper on-site welding practices raised by two witnesses of Intervenor Citizens Association for Safe Energy (" CASE"), Darlene and Henry Stiner.
These allegations were raised by CASE in support of its Contention 5 regarding the adequacy of the OA program at the Comanche Peak Steam Electric Station ("CPSES").1 1
CASE's Contention 5 reads as follows:
The Applicants' failure to adhere to the quality assurance / quality control provisions required by the construction permits for Comanche Peak, Units 1 and 2 and the requirements of Appendix B of 10 C.F.R. Part 50, and the construction practices employed specifically in regard to concrete work, mortar blocks, steel, fracture toughness.
testing expansion joints, placement of the reactor vessel for Unit 2,
- welding, inspection and testing, materials used, cra ft (as they.may affect OA/QC) and training and organization of OA/QC personnel, have raised substantial questions as to the adequacy of
( footnote continued)
The allegations raised by the Stiners were initially litigated in September 1982.
During the hearings addressing these allegations, six witnesses presented oral and written testimony (two CASE, two Staff and two Applicants witnesses).
Following the close of hearings, the Licensing Board directed, pursuant to 10 C.F.R. $ 2.754, that the parties file proposed findings of fact on issues addressed during the 1982 hearings (including the welding issues).
Intervenor CASE did not file such mandatory proposed findings of fact on the welding issues, although it did file proposed findings on other issues then ripe for decision, e.g.,
rock overbreak and cracks in concrete.
Applicants and the NRC Staff filed proposed findings of fact on all issues.
Subsequently, on July 29, 1983, the Licensing Board issued its first of three decisions addressing, inter alia, these welding issues.
Proposed Initial Decision, LBP-83-43, 18 NRC 122, 137-145 (1983).2 In this July 29 Proposed Initial Decision, the Licensing Board ruled that in view of CASE's failure to file proposed findings on these issues, CASE was in default and its actions constituted abandonment of this portion of its case.
18 NRC at 124 and 130.
(footnote continued from previous page) the construction of the facility.
As a result, the Commission cannnot make the findings required by 10 C.F.R. $ 50.57(a).
necessary for issuance of an operating license.for-Comanche Peak.
[18 NRC at 125.]
2 The Licensing Board stated that the Proposed Initial Decision was not final.
18 NRC at 124.
Thus, it.was not subject to appeal as a matter of right.
. While the Licensing Board ruled that CASE had abandoned this portion of its quality assurance case, the Board noted that it had examined each important allegation that is in default in order to determine whether to raise any of these defaulted issues by ourselves (sua sponte).
See 10 C.F.R. $ 2.760a.
In a few instances we require some additional evidence before determining whether or not to declare a sua sponte issue.
[18 NRC at 124.]
With regard to the abandoned welding allegations, the Board ruled that only limited aspects of four issues needed additional evidence to allow the Board to decide whether to declare sua sponte issues, viz., limited aspects of weave welding, downhill welding, weld rod control and welding of misdrilled holes.
18 NRC at 137-145.
See also Welding Decision at 2.
Applicants objected to this ruling in a motion for r9 consideration dated August 27, 1983.
g;rt on September 23, 1983, in response to motions for reconsideration of its July 29 Proposed Initial Decision, the Licensing Board issued its second decision which addressed these issues.
Memorandum and Order, LBP-83-60, 18 NRC 672 (1983).3
~
While the Board reaffirmed its ruling that CASE was.in default, it took a different approach to its treatment of the abandoned issues.
The Board stated that
[s]ince'the quality _ assurance contention still is pending, we need not decide whether our questions are 'important' safety issues-
-- as in the sua sponte section of the-procedural rules -- but only whether we 3
In this decision the Licensing Board again specifically stated its view that the decision was interlocutory and not subject to appeal as a matter of right.
18 NRC at 675.
. require answers in order to have a satisfactory understanding of the quality assurance contention.
[18 NRC at 675.]
Further, the Board ruled that while legal precedent at the NRC held that CASE could not appeal an issue on which it had defaulted, CASE would be allowed to further participate in the Board's inquiries regarding this abandoned segment of the case.
18 NRC at 679-80.
(Significantly, several issues other than the four related to the Stiners' welding allegations fall into this
" abandoned" but "open" category and are yet to be resolved in this proceeding.
- See, e.g.,
the open items listed at 18 NRC at 681-695, most of which are still being held open by the Board.)
Subsequently, in order to gain "a satisfactory understanding," the Board held an additional seven days of hearings on these four abandoned welding issues during which-CASE was allowed full participation rights.
Two CASE witnesses, three Staff witnesses and nine Applicants witnesses presented additional oral and written testimony.
In addition, as a result of new testimony of Mr. Stiner, t'..e Licensing - Board " expanded the
[ abandoned] issues to be addressed to include allegations regarding preheat of weld joints."4 Welding Decision at 3.
Following the close of hearings, proposed findings of fact. on the welding issues were filed by Applicants, the'NRC Staff-and CASE 4 When the issue of preheat was first raised by the witness during trial, Applicants objected on grounds of timeliness.
The Board did not rule on the objection based on the factors for late-filed contentions in 10 C.F.R.
I 2.714(a)(1), but rather presented Applicants with the "Hobson's choice" of litigating preheat on the spot or having the Board charge the Staff to investigate and implicitly to report.back to the Board.
Fearing delay if the latter approach were followed, Applicants " chose"
'the former.
Tr. 9948-50.
pursuant to 10 C.F.R.
$ 2.754.
(CASE, however, addressed only the issues of weave welding, downhill welding and weld repair of misdrilled holes.)
Subsequently, on December 18, 1984, the Licensing Board issued _the instant Welding Decision addressing each of the remaining allegations by Mr. and Mrs. Stiner regarding the welding issues at Comanche Peak which we perceive could have affected our determination as [to] the adequacy of the QA program or the safe operation of the plant.
[ Welding Decision at 77.]
Unlike its earlier decisions regarding this issue, the Licensing Board's Welding Decision did not state its view that the decision was interlocutory.
In its Welding Decision the Licensing Board concluded that "there is reasonable assurance that these allegations are not reflective of any condition that could adversely impact the safe operation of the plant" (Id. at 77).
However, although the Licensing Board found that neither Mr. nor Mrs. Stiner was a credible witness (Welding Decision at 1 and 8-19), the Board ruled:
(1) that Applicants' actions regarding the abandoned issue of repair welds of misdrilled holes constituted a significant violation of Appendix B to 10 C.F.R. Part 50 (Weldina Decision at 69-71),5 and 5
In making this finding, the Board viewed as important (1) its belief that no contemporaneous investigation of the_one confirmed incident identified by Mrs. Stiner of improper weld repair of'misdrilled holes.was conducted to determine its extent and.(2) testimony from Applicants' witness Fred Coleman that when he made repairs of misdrilled holes he did not physically have the repair documentation, although he knew the welds were inspected.
Welding Decision at 61 and 69-71.
With regard to the first point, however, the (footnote continued)
a i
_7_
(2) without showings or findings associated with raising a new issue or reopening, that the new issue of preheat (while not a safety concern and not reflective of systematic or significant violations of procedural requirements) needed an additional NRC Staff assessment which "will be considered in this proceeding" (Welding Decision at 72 and 74-75).6 Significantly, the Intervenor (as before) failed to file proposed findings.on the issue of preheat.
In sum, in its July 29 and September 23, 1983 decisions, the Licensing Board ruled that CASE had abandoned that segment of its quality assurance contention related to allegations of Mr. and Mrs. Stiner regarding welding.
However, the Licensing Board did not dismiss these allegations, but rather proceeded to conduct seven additional days of hearings on this abandoned segment of the case, without making the findings necessary under 10 C.F.R.
( footnote continued from previous page)
Licensing Board apparently overlooked testimony which reflected that such an investigation was conducted; indeed-the individual responsible for the incident was demoted.
(Tr. 11782-86.
See'also Applicants' Proposed Findings of
' Fact in the Form of a Partial Initial Decision at 66 (September 7, 1984).)
With regard to.the second. point,~the=
Licensing Board resolved this issue'in favor of Applicants in its Welding Decision at 62, note 20.
6 The. issue regarding' preheat retained by the Board addressed not Mr. Stiner's failure to preheat, but the use of a~
" temperature measuring device to verify that the temperature of ghe metal after being preheated was at least 60 F or 200 F'.
(emphasis supplied)
Welding Decision at-74.
The Licensing Board adopted the NRC Staff's proposed findings of fact regarding this issue.
Neither the NRC Staff nor the Licensing Board provided a record citation identifing where this issue was raised by the Stiners' testimony in-this case.
Applicants have found no allegation in the record made by.either Mr. or Mrs._Stiner regarding this issue other than testimony which was stricken (CASE Exhibit 919 at.ll-12, stricken at Tr. 9960).
See Applicants Response to the NRC Staff's Proposed Findings of Fact on.
Welding Issues at 4, - note 3 (September 28, 1984).
. 2.760(a) and Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981) to raise these abandoned issues sua sponte.
The Board ultimately found reasonable assurance that all such issues would not reflect adversely on the safe operation of the plant.
Nevertheless, the Board expressed its intent to retain two matters from this abandoned segment of the case (repair welding of misdrilled holes and preheat) for later consideration in the context of the overall case.
On January 7, 1985, CASE filed a motion for reconsideration of the Licensing Board's December 18 Welding Decision.
III.
THE LICENSING BOARD'S DECEMBER 18, 1984 DECISION IS APPEALABLE AS A MATTER OF RIGHT It is well-settled that "a licensing board's action is final-for appellate purposes where it either disposes of at least a major segment of the case or terminates a party's right to participate Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 758 (1975).
In this regard, a licensing board decision which disposes of only a segment of the case and does not result in licensing authorization may still be significant and therefore appealable as a matter of right.
Houston Lighting and Power Co. (Allen's Creek Nuclear Generating Station, Units 1 and 2), ALAB-301, 2 NRC 853, 854 (1975); Duke Power Co. (Perkins Nuclear Station, Units 1, 2.and 3), ALAB-597,-
~
11'NRC 870, 871 (1980).
For example, without discussion, the Appeal Board has routinely taken review of partial initial decisions disposing of only portions of the issues in
controversy.
- See, e.g.,, Metropolitan Edison Co. (Three Mile Island, Unit No. 1), ALAB-697, 16 NRC 1265 (1982); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC (slip op. October 31, 1984).. Indeed, the Appeal Board recently has criticized parties for failure to pursue their appeals of partial decisions in timely fashior.
Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC (slip op. at 4-5, December 26, 1984).
Here the Licensing Board's December 18, 1984 Welding Decision (79 pages in length) makes findings and issues orders
' disposing of a discrete segment of this case.
As the Licensing Board stated:
[w]e have addressed in this decision each of the remaining allegations by Mr. and Mrs.
Stiner rega'rding the welding issues at Comanche Peak which we perceive could have affected our determination as [to] the adequacy of the QA program or the safe operation of the plant.1.[ Welding Decision at 77.]
In short, Applicants maintain that the issues ' addressed in the -
instant Welding Decision constitute'a discrete segment of this case'and resolution of these issues can proceed independent of other. issues.
'In addition, the issues addressed by this Welding Decision (referred to,by the Licensing Board itself as a Partial Initial I
Decision (see Welding Decision at 3 and 19)) required.-
L approximately nine days of hearings, oral and written testimony
~ from 16 different. witnesses and over 2500 pages of transcript.
l
[
The Board's decision finds that Applicants have. committed a i
y
"significant violation of Appendix B to 10 C.F.R. Part 50."
Welding Decision at 69.
Although not dispositive of the question of acceptability of the plant, Applicants submit that this finding is significant and " legitimate interests may he furthered by a prompt determination [of significant issues]
Houston Lighting and Power Company, supra, 2 NRC at 854.
The Licensing Board has issued three incremental decisions which address the subject of the Stiners allegations.
The December 18 Welding Decision is presumably the Board's final disposition of the technical merits of the allegations and hence the Welding Decision should be immediately reviewable.
The issues remaining to be decided in this case will be capable of decision and review along an independent track at a later date.
Meanwhile, the Applicants' current appeal raises pervasive and important questions concerning the Licensing ~ Board's jurisd1ction over abandoned issues, and these questions are relevant to the disposition of other open issues in this proceeding (See Part IV, infra).
In sun, Applicants submit that the Licensing Board's December 18, 1984 decision disposes of a major-segment of this case and, accordingly, is subject to appeal as a matter _of right.
IV.
ISSUES RISING OUT OF THE LICENSING BOARD'S-DECEMBER 18, 1984 DECISION WARRANT DIRECTED CERTIFICATION While Applicants maintain that the Licensing Board's-t December-18 decision is appealable as'a matter of right, in the-
' f
event that the Appeal Board finds the decision interlocutory, Applicants request Appeal Board review of this decision pursuant to 10 C.F.R. $ 2.718(i).
Discretionary interlocutory review authorized by 10 C.F.R. 2.718(i) is used sparingly and only where "the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."
(footnote omitted)
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), -
ALAB-405, 5 NRC 1190, 1192 (1977) and cases there cited.
While not dispositive, factors which support discretionary review are (1) whether the issue must be reviewed now or'it may escape review altogether, particularly where the issue is capable of repetision;7 or (2)_whether a licensing board's decision does not articulate in reasonable detail the basis for an interlocutory matter of' obvious importance.8 At a minimum, a party seeking directed certification must establish that, failing a resolution-of the problem, the public interest'will suffer or' unusual delay i:
or expense will be encountered.9 s
f.
7 Houston Lighting and Power Co.-(South Texas Project,. Units 1 and 2), ALAB-639, 13 NRC 469, 472-73 (1981); Kansas Gas'and
' Electric Co..(Wolf Creek. Nuclear Generating Station, Unit
~
1), ALAB-327, 3 NRC 408, 413.(1976). :See also Sholly v.
-NRC, 651 F.2d 780, 784 (D.C. Cir. 1980).
'8' Pacific' Gas and Electric Co. (Diablo Canyon-Nuclear' Power r-
-Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 412 (1978).
9!
Public Service Co. of New Hampshire-(Seabrook Station, Units (footnote-continued) i l
1 i
i
Applicants submit that based on the foregoing relevant criteria, questions regarding the jurisdiction and authority of the Licensing Board regarding abandoned issues warrants discretionary review.
As previously noted, the Licensing Board ruled that Intervenor had abandoned that portion of its OA contention relating to allegations made by Mr. and Mrs. Stiner regarding welding.
18 NRC at 124 and 130.
However, without declaring a sua sponte issue, the Licensing Board retained this abandoned segment of the case for 16 months, and conducted seven additional days of hearings relating to the abandoned issues and to one new issue embraced by the Board without any finding or -
showing of good cause for lateness.
Now, without any express procedural justification and after finding that there is reasonable assurance that such issues will not adversely affect safe plant operation, the LicensingfBoard continues.to-retain two-such issues (repair welding'of misdrilled holes and1 preheat) for lat'er consideration.
Further, as noted on_p.'5, supra, there are-several other abandoned issues similarly held open tur the Board.
Caus, ' the questions presented here have already af fected the
. proceeding'in a pervasive manner and are likely to be repeated.
. Applicants' request directed certification of the following -
,three. questions:-
1.
Whether in an operating-license.
proceeding, -the Licensing Board has authority ;
1 to require. issues abandoned int intervenor to be: litigated nevertheless,.without declaring
- a sua sponte issue ~and complying with 10 (footnote-continued from previous page) 1 and 2),.ALAB-271, 1-.NRC 478,.483 (1975); Toledo Edison.
Co.,isupra, 2 NRC atJ759.
+
O o C.F.R. $ 2.760a?
If so, what is the practical effect of an intervenor abandoning an issue?
2.
Whether in an operating licensing proceeding, the Licensing Board has the authority to require full litigation of a tangential issue raised for the first time during hearings, without a finding of, inter alia, good cause for lateness pursuant to 10 C.F.R. $ 2.714(a)(1), or without declaring a sua sponte issue and complying with 10 C.F.R.
% 2.760a?
3.
Whether in an operating license proceeding, without declaring a sua sponte issue, the Licensing Board can retain for inclusion in its ultimate conclusion of law an abandoned segment of the case and an issue filed late with no finding of good cause for lateness?
Applicants recognize that the Appeal Board disfavors discretionary interlocutory review and has denied directed certification motions predicated upon licensing board rulings that the movant perceives as resulting in unnecessary litigation.
See e.g., Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 384 (1983).
However, Palo Verde is distinguishable here because it did not deal with litigation the conduct of which is inconsistent with NRC Rules of Practice and Commission directive (that is, improper litigation rather than merely_ unnecessary litigation).
Further, discretionary review should be-and is appropriate in cases in which licensing boards take actions which are questionable, are of precedential importance,.are capable of repetition, but would, without discretionary review, escape appellate review and meaningful relief.
o i For example, in Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2,
3 and 4), ALAB-577, 11 NRC 18 (1980), the Appeal Board made an exception to its general appealability rules in order to undertake review of a licensing l
board decision imposing a license condition upon applicants.
Although not injured by the decision, the NRC Staff was granted the opportunity to appeal based on the special circumstances and serious precedential importance of the jurisdictional issue raised by the Staff.
Id. at 24-25.
Similarly, as relied upon in Shearon Harris, the Appeal Board undertook discretionary review of a procedural question raised by the Staff in Northern States Power Co. (Prairie Island Generating Plant, Units 1 and 2),
ALAB-252, 8 AEC 1175, 1177-78 (1975).
The Appeal Board found I
that the holding to be addressed could well have impact upon the course of many licensing hearings.
Unless and until overturned by action of either this Board or some higher authority, it will be binding upon the licensing boards -- in proceedings
. now'under way as well as future cases.
[Id.]
.If the holding were to escape appellate review, it would be capable of endless repetition.
See also Sholly v.
NRC, supra, 651 F.2d at 784-86.
Neither'Shearon Harris nor Prairie Island involved discretionary interlocutory review.
However, the principles involved in those cases,-favoring discretionary review, are i
t equally appropriate in the present case.
Applicants submit that the Licensing Board has misinterpreted.its role under the Rules of Practice, in particular the sua sponte rule (10 C.F.R.
I
,m.
,,4.
w-
2.760a), and the teachings of the Commission as to the intent of that rule, Texas Utilities Generating Company, supra, 14 NRC 614 (1981), with respect to abandoned issues.
The Commission's regulations make clear that in operating license proceedings the Licensing Board's role is to resolve issues placed in controversy by the parties, not to make all ultimate findings, and that
"[m]atters not put into controversy by the parties will be examined and decided by the presiding officer only where he or she determines that a serious safety, environmental, or common defense and security matter exists."
10 C.F.R. I 2.760(a).
In such instances where the Licensing Board decides to raise matters sua sponte, it must make the requisite findings noted above in a separate order and provide the "particular factors beyond the mere pendency of Staff review upon which it bases its determination of the existence of a serious safety, environmental, or common defense and security matter."
Texas Utilities Generating Company, supra, 14 NRC at 615.
The Licensing Board here has held open abandoned issues for over 16 i
months, conducted extensive additional hearings on such issues and now seeks to retain this abandoned segment of the case still without making the. findings required.
1 Interlocutory review is especially appropriate here because the Licensing Board's view of its role pervades this case, yet
. will evade effective and~ meaningful Appeal Board review if not scrutinized now, and is capable of repetition in other cases.
Guidance by'the Appeal Board would apply throughout the remainder of this proceeding and would alleviate any unnecessary litigation
4 and any improper precedent.
To withhold review pending completion of the case would eliminate the effectiveness and utility of Applicants' appeal and of meaningful Appeal Board relief.
Moreover, if the final decision on QA is favorable to Applicants, the Licensing Board's interpretation of sua sponte authority and treatment of defaulted issues could escape any review, potentially creating improper precedent for future cases.
In sum, Applicants maintain that the Licensing Board's ruling regarding the question of jurisdiction over an abandoned segment of the case has affected and will continue to affect the basic structure of this proceeding in a pervasive and unusual _
manner.
Further, given the number of abandoned" but "open"
. issues still remaining in this proceeding, failure to resolve this question could result in substantial and unwarranted litigation and expense which, clearly, would not be in the public interest.
Additionally, if this ruling is not. reviewed now, it could escape review altogether and still be capable of repetition.
Therefore, Applicants submit that discretionary appellate review is warranted.
9 w
'O.
V.
CONCLUSION From.the foregoing, Applicants submit that the Licensing
-Board's-December 18, 1984 Welding Decision is now subject to appeal as a matter of right, or, in the alternative, warrants discretionary review as noted above.
Applicants request that the Appeal Board so find and establish a briefing schedule for all parties.
Respectf 11 submitted, i
NicholasyS.
eynolds Malcolm f:.
h ilips, Jr.
- BISHOP, IB
,_ COOK, PURCELL & REYNOLDS 1200 Seventeenth' Street, N.W.
Washington, D.C.-
20036 (202)857-9817 January 11, 1985
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION,' y i
BEFORE THE ATOMIC SAFE 2Y A5D LICENSING BOARD In the Matter of
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Docket Nos. 50-445 and TEXAS UTILITIES-ELECTRIC
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50-446 COMPANY, et al.
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(Application for (Comanche Peak Steam Electric
)
Operating Licenses)
Station,, Units 1 and 2)
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CERTIt'ICATE OF SERVICE,
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I hereby certify ~that copies of " Applicants' Response to
-Appeal Board Order of* January 2, 1985" in the above-captioned matter were served uhrin,the following persons by' deposit in the United-States maii, first class, postage p(epaid, this lith day of January, 1985.
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Alan S.
Rosenthal, Chairman Dr. W. Reed Johnson Administrative Judge Atomic Safety'and'Lidensing Atomic Safety and Licensing Appeal Bo,ard r
Appeal Board y p U.S. Nuclear Regulatory _
e' U.S. Nuclear Reghlatory N
Commission Commission Washi'ngton,.D.C.
20555 Washington, D.C.
20555 x
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Thomas S.-Moore
. Chairman,. Atom 2c Safety and Atomic Safety and Licensing Lidensing Appeal Panel t
._ Appeal Board g
,U.S..' Nucle,ar Regulatory i
U.S.
Nuclear Regulatory Commission
,_.k Commission.
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Washington, D.C.
20555
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Washington, D.C.
20555 i
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s Peter B.1Bloch, Esq..
-Willilam"Cr Clements, Chairman,. Atomic Safety and Docketing A} Service Branch Licensing Board U.S. Nuclear R,egulatory L U. S. : Nuclear Regulatory Commission 3
' Washington,~D.C.~
20555 Washington,'D.C.
20555 EDr.' Walter H. Jordan Stuart-A. Treby, _ Esq.1
'881 West Outer Drivec Office of;the Ex,ecutive Oak Ridge, Tennessee 37830-Legal' Director U.S.
Nuclear Regulatory Commission
-Washington, D.C.
20555 s-3 g
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s 4 Dr. Kenneth A.
McCollom Chairman, Atomic Safety and Dean, Division of Engineering Licensing Board Panel Architecture and Technology U.S.
Nuclear Regulatory Oklahoma State University Commission Stillwater, Oklahoma 74074 Washington, D.C.
20555 Robert D.
Martin Renea Hicks, Esq.
Regional Administrator, Assistant Attorney General Region IV Environmental Protection U.S.
Nuclear Regulatory Division Commission P.O.
Box 12548 611 Ryan Plaza Drive Capitol Station Suite 1000 Austin, Texas 78711 Arlington, Texas 76011 Mrs. Juanita Ellis Elizabeth B. Johnson, Esq.
President, CASE Oak Ridge National Laboratory 1426 South Polk Street Post Office Box X Dallas, Texas 75224 Building 3500 Oak Ridge, Tennessee 37830 Lanny A.
Sinkin Executive Director Nuclear Information and Resource Service
'1346 Connecticut Avenue, N.W.
4th Floor Washington, D.C.
20036
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Malcolm H.fPKlips,-Jr.
cc:
John W.
Beck Robert Wooldridge, Esq.
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