ML20133F512

NRC Brief in Support of Util 850923 Motion for Exemption from 10CFR2.786(b)(1) Re Prohibiting Party from Seeking Review of Aslab Decision on Petition for Directed Certification.Affidavit Encl

ML20133F512
Person / Time
Site:	Braidwood
Issue date:	10/08/1985
From:	Berry G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
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ML20133F516	List: ML20133F512 ML20133F536
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CON-#485-731 OL, NUDOCS 8510110077
Download: ML20133F512 (15)

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UNITED STATES OF AMERICA ~

NUCLEAR REGULATORY COMMISSION ,

'65 CCT -9 A'] .07 BEFORE THE COMMISSION

~

In the Matter of

)

) Docket Nos. 50-456 1, COMMONWEALTH EDIS0N COMPANY ) 50-457 (Braidwood Nuclear Power Station )

Units 1 and 2) )

i i

NRC STAFF BRIEF IN SUPPORT OF COMMONWEALTH EDISON COMPANY'S MOTION FOR EXEMPTION FROM COMMISSION REGULATION I

l Gregory Alan Berry

, , Counsel for NRC Staff I

i

, October 8, 1985 K O kS

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, OCI ~9 g.07 UNITED STATES OF AMERICA '

> NUCLEAR REG:lLATORY COMMISSION .

a

- BEFORE 1HE COMMISSION 4

In the Matter of )

! ) Docket Nos. 50-456 COMMONWEALTH EDISON COMPANY 50-457 i (Braidwood Nuclear Power Station )

i Units 1 and 2) )

l l

NRC STAFF BRIEF IN SUPPORT OF COMMONWEALTH EDISON COMPANY'S i MOTION FOR EXEMPTION FROM COMMISSION REGULATION i  !

4 3

i 4

Gregory Alan Berry Counsel for NRC Staff  ;

October 8, 1985 e

i

TABLE OF CONTENTS 1

TABLE OF CITATIONS................................................ 11

1. INTRODUCTION................................................. 1 II. BACKGR0VND................................................... 2 III. DISCUSS 10N................................................... 3 A. Applicants Petition for Exemption From Section i l 2.786(b)(1) of the Comission's Rules of Practice Should Be Granted....................................... 3

< B. The Comission Should Review ALAB-817 Pursuant to Either

- Its Sua Sponte Review Power or Its Inherent

. Supervisory Authority................................... 6 IV. CONCLUSION................................................... 11 4

]

1 l

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TABLE OF CITATIONS NRC CASES PAGE)S COMMONWEALTH EDIS0N COMPANY (Braidwood Station, Units 1 and 2)

ALAB-817, NRC (1985)................................. 1 ARIZONA PUBLIC SERVICE CO.

(Palo Verde Nuclear Generating Station, Units 2 and 3)

ALAE-742, 18 NRC 380, 384 n.9 (1983)......................... 4 PUBLIC SERVICE CO. OF NEW HAMPSHIRE i

(Seabrook Station, Units 1 and 2)

ALAB-734, 18 NRC 11 (1983)................................... 4 PUBLIC SERVICE C0. OF INDIANA (Marble Hill Nuclear Generating Station, Units 1 and 2)

ALAB-405, 5 NRC 1190, 1192 (1977)............................ 4 i

CLEVELAND ELECTRIC ILLUMINATING CO.

(Perry Nuclear Power Plant, Units 1 and 2)

ALAB-675, 15 NRC 1105, 1113 (1982)........................... 5 DUKE POWER CO.

(Catawba Nuclear Station, Units 1 and 2)

ALAB-687, 16 NRC 460, 468 (1982)............................. 8 l

CONSUMERS POWER CO.

l TMidlandPlant, Units 1and?)

ALAB-674, 15 NRC 1101, 1102-1103 (1982)...................... 9 i l

CONSOLIDATED EDISON CO. OF NEW YORK (Indian Poir.t. Units 1, 2 and 3)

ALAB-319, 3 NRC 188, 190 (1976).............................. 9 t

l .

j UNITED STATES ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION l (Clinch River Breeder Reactor Plant)

- CLI-76-13,4NRC67,75(1976)................................ 7 l

i

! PUBLIC SERVICE CO. OF NEW HAMPSHIRE (Seabrook Station, Units 1 and 2)

CLI-77-8, 5 NRC 503, 516..................................... 7 DUKE POWER CO. l (Catawba Nuclear Station, Units 1 and 2)

CLI-83-19, 17 NRC 1041, 1044 (1983).......................... 7 i

._ . _ . __ . . _ _ _ _ _ . . . _ . _ _ _ _ . . _ ._ _____ _ _ __ ~ _ . _

-111-NRC CASES '- PAGE)S COMMONKEALTH EDIS0N COMPANY '

(Braidwood Nuclear Power Station, Units 1 and 2)

LBP-85-11, 21 NRC 609 (1985)................................. 2 REGULATIONS 10 C.F.R. 6 2.714(b).............................................. 2,4,8, 9,10 10 C.F.R. I 2.786(a).............................................. 6,7,9 11 10 C.F.R. 6 2.740................................................. 8,9,10 10 C.F.R. 6 2.758(b).............................................. 3,4 10 C.F.R. 6 2.760a................................................ 9 10 C.F.R. 9 2.785(d).............................................. 5 10 C.F.R. 5 2.786(a).............................................. 6,7,11 10 C.F.R. 5 2.786(b).............................................. 4,6 10 C.F.R. 9 2.786(b)(1)........................................... 1,2,3 4.5,6 i

11 10 C.F.R. 6 2.786(b)(3)........................................... 2 1

I

l IOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIG55 CCI-9 N0 57

- . BEFORE TPE COMMISSION q

In the Matter of )

)

COMMONWEALTH EDIS0N COMPANY ) Docket Nos. 50-456

) 50-457 (Braidwood Station, Units 1 and 2 )

NRC STAFF BRIEF IN SUPPORT OF COMMONk'EALTH EDISON COMPANY'S MOTION FOR EXEMPTION FROM COMMISSION REGULATION I. INTRODUCTION On September 23, 1985, Applicant Commonwealth Edison Company filed with the Commission a motion for exemption from 10 C.F.R. 6 2.786(b)(1) of the Commission's Rules of Practice. That provision enjoins a party from seeking Commission review of an Appeal Board decision on a request for directed certification. Should the Commission grant the motion for exemption, Applicant would seek Conmission review of ALAB-817. II For the reasons set forth below, the NRC Staff agrees with Applicant that the Ccmmission should waive the application of 10 C.F.R. 6 2.786(b)(1) and review the Appeal Board's decision in ALAB-817. In the alternative, the Commis-sion should review that decision pursuant to the sua sponte authority

-1/ Commonwealth Edison Company (Braidwood Station, Units 1 and 2),

ALAB-817 NRC (September 6,1985)[hereinaftercitedas ALAB-817).

4 i

l contained in 10 C.F.R. 5 2.786(a) or its inherent authority to supervise j the conduct of adjudicatory proceedings. E

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y II. BACKGROUND

! f j In ALAE-817, the Appeal Board denied Applicant's petition for directed certification of the question whether the Licensing Board  !

l exceeded its authority in fashioning an ad hoc procedure to facilitate the acceptance of Intervenor's quality assurance contention. The Licensing Board determined initially that Intervenor's late-filed quality l

assurance contention could not be admitted because it "was so broad and

]

f thelackinspecificitysodamaging[.]" LBP-85-11 at 41; 21 NRC at 636. l I

{ The Licensing Board concluded, however, that because "of the important i~

safety function served by an adequate QA/QC program," Intervenor would be l l afforded the opportunity to cure the deficiencies in its contention and

)

l resubmit it for the Board's acceptance. I d_. To assist Intervenor in

! meeting its obligation to satisfy the specificity and basis requirements i of 10 C.F.R. I 2.714(b), the Licensing Board authorized Intervenor to a ,

j depose James G. Keppler, the Administrator of Region III. The Licensing i i i Board made clear that the taking of Mr. Keppler's deposition was "an t

j imperative if an important part of Intervenor's QA/QC allegations are i i to be adeauately composed . . ." 21 NRC at 635. During the course of j I

. his deposition, Mr. Keppler referred Intervenor to several inspection 1 i I

i 2/ Because the Staff supports Applicant's petition for review, it is  ;

precluded from filing a brief addressing the merits of Applicant's .

petition. See10C.F.R.I2.786(b)(3). Consequently, the Staff's  !

response is Timited to a discussion of Applicant's request for a i waiver of 10 C.F.R. 9 2.786(b)(1) and the Comission's inherent  !

l and _sua sponte authority to review interlocutory matters. l I

f a

reports (reportswhichlonghadbeenpubliclyavailable). These inspec-tion reports provided the bases of the new quality assurance contention (a contention thirty-one pages in length, consisting of fourteen subparts,

. which questions Applicant's compliance with virtually every aspect of 10 C.F.R. Part 50, Appendix B) submitted to the Licensing Board. The Licensing Board accepted Intervenor's contention over the objections of Applicant and the Staff.

The Applicant, supported by the Staff, then petitioned the Appeal Board to grant directed certification of the Licensing Board's ruling and requested the Appeal Bo rd to strike Mr. Keppler's deposition and dismiss the amended quality assurance contention. Intervenor opposed the grant of directed certification. The Appeal Board, by a 2-1 majority, held that the " net effect of the Board's ruling is simply to admit one additional contention . . ." ALAB-817, slip op. at 6. "Because the injection of one or more additional issues into an ongoing case seldom has a pervasive or unusual effect on the basic structure of a proceeding

. . . " the Appeal Board concluded that interlocutory review was not warranted and denied the petition for directed certification. M.at6-7.

!!!. DISCUSSION A. Applicant's Petition for Exemption From Section 2.786(b)(1) of the Comission's Rules of Practice Should Be Granted Section 2.786(b)(1) of the Comission's Rules of Practice prohibits a party from seeking review of an Appeal Board's decision on a petiticn for directed certification. Comission review of such decisions may be 4

obtained by a party only if it demonstrates, pursuant to 10 C.F.R. 12.758(h), that the procedural bar. of section 2.786(b)(1) should be waived because "special circumstances with respect to the subject natter

i of the proceeding are such that application of the rule or regulation ,

4 (or provision thereof) will not serve the purposes for which the rule 4 .  !

l or regulation was adopted." 10 C.F.R. 5 2.758(b). j f

i

. In the regulatory preamble issued in connection with the promulga-

' tion of 10 C.F.R. I 2.786(b)(1), the Commission explained its reason for

. excluding f rom review Appeal Board decisions on petitions for directed ,

l certification. See 42 Fed. Reg. 22128 (May 2, 1977). In that pronounce-ment, the Comission stated that "[t]he review procedure under i 2.786(b) is intended to provide a limited review only of decisions and actions by l Appeal Boards that would otherwise be final." Ld. This observation is

! consistent with the general principle that appellate tribunals should refrain from entertaining appeals of interlocutory rulings. See e a ,

i i

ArizonaPublicServiceCo.(PaloVerdeNuclearGeneratingStation, 1

Units 2 and 3), ALAB-742, 18 NRC 380 (1983); public Service Co. of New

! Hampshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11 (1983).

i The caselaw indicates that appellate review of interlocutory rulings I is appropriate only where the ruling, if left uncorrected, would occasion irremediable harm to the party adversely affected or would affect the basic structure of the proceeding in a pervasive or unusual manner, n ,

i l l

_Public Service Co. of Indiana (Marble Hill Nuclear Generating Station,  ;

I Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). For example, an

. interlocutory. order that " fundamentally alters the very shape of the i

I ongoing adjudication" should be reviewed by an appellate tribunal prior  ;

totheissuanceofafinaldecision.2/ See Cleveland Electric 1110mi_-

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j 3/ As Applicant points out, the Licensing Board's action has resulted  !

in tie establishment of a discovery procedure which is totally incon-sistent with the Comission's Rules of Practice and the expansion  !

of the proceeding to include matters not properly in controversy I pursuant to 10 C.F.R. I 2.714(b). See Applicant's Petition at 3, 5. [

i a l l

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nating Co. (Perry Nuclear Power Plant, Units I and 2), ALAB-675, 15 NRC 1105,1113.(1982). Interlocutory review also is appropriate to consider  !

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rulings presenting a novel question of law, policy, or procedure. See l

Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 j and 3), ALAB-742, 18 NRC 380, 384 n.9 (interlocutory review appropriate where necessary to resolve " questions of broad and imediate significance");

see also 10 C.F.R. I 2.785(d) (procedure governing referrals from Appeal  ;

l Board to Commission). From these pronouncements, it is clear that the -

purpose of interlocutory review is not to consider questions of minor import or to correct errors of de minimis impact, but rather to provide l guidance regarding a controlling question of law or policy, or to rectify a highly prejudicial error. The Staff agrees with Applicant that the important and compelling questions of law and policy arising out of the Licensing Board and Appeal Board orders warrant imediate Comission review.

Litigation in an operating licensing proceeding is limited by the l Comission's regulations to matters properly placed in controversy.

Consequently, the method by which an issue is injected into a proceeding goes to the very heart of the adjudicatory process. The integrity of that process will not remain inviolate if the Comission sanctions a procedure [

t (such as the one adopted here by the Licensing Board) whereby the Commis- j sion's carefully considered and crafted rules are disregarded in order to

- achieve a result which otherwise would be unavailable. Worse yet, if left i uncorrected, the Licensing Board's decision may well foster disregard for [

the Rules of Practice because future litigants reasonably might infer j from that decision that the admissibility of a contention is a matter to l t

be determined not by reference to the Rules of Practice but rather in the unfettered discretion of the Licensing Board. The Comission should not ,

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deprive itself of the opportunity to vindicate the primacy of its regula-tions and preserve the integrity of its adjudicatory processes. Accordingly.

the Comission should waive the provisions of 10 C.F.R. Q 2.786(b)(1)

, which bar a party from seeking review of Appeal Board action on a petition for directed certification and grant Applicant's petition for review.

B. The Commission Should Review ALAB-817 Pursuant to Either Its Sua Sponte Review Power or Its Inherent Supervisory Authority The extroadinary procedure adopted by the Licensing Board (authorizing Intervenor to depose a named NRC Staff official to bolster a contention tnt had not been admitted into the proceeding) flies in the face of the Commission's long-standing procedural rules, is squarely at odds with settled precedent, and is contrary to the policy of the Comission. If not reviewed now by the Commission, that decision threatens substantial delay in the instant proceeding and paves the way for future licensing boards to fashion their own procedures for admitting contentions. More-over, a substantial but needless waste of resources will result if review is withheld until after the issuance of an initial decision. 4/ For these reasons, the Comission should exercise its sua sponte review power under 10 C.F.R. I 2.786(a) or its inherent supervisory authority over the conduct of adjudicatory proceedings to review ALAB-817 at this time.

Section 2.786(b)(1) excludes denials of requests for directed certi-

. fication from the class of decisions of which a party may seek review.

4/

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As Mr. Keppler's affidavit indicates, litigation of Intervenor's quality assurance contention will focus exclusively on matters identified in the past by the Staff and which have been addressed in Staf f inspection reports. See Affidavit of James G. Keppler, Region !!! Administrator,14(X)~(appended to this Response).

. _ . _ - . ~ _ . .-_-_. . . . - . - - . _ _ _ - _ . - -. _ _ . _ - --

1-Section 2.786(a), however, is'not so limited. Under that section, the Comission .may review sua sponte a_ny determination which the Comission

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deems to be'"of exceptional legal or policy importance[.]" 10 C.F.R. 52.786(a); accord United States Energy Research and Development Admini-stration (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67, 75

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, (1976); see Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, J16 (1977); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1044 (1983). Although this sua sponte authority should be used sparingly with respect to review of interlocutory decisions, Clinch River, supra, 4 NRC at 76, the lesson of the cited cases is that exercise of the authority is appropriate where necessary to provide guidance (i) "to keep [the] hearing within appropriate bounds," Seabrook, supra, 5 NRC at 516; or (ii) where the decision to be r

reviewed is "in conflict with statutory requirements and involves important

, questions of public policy" or " threatens substantial delay" to the

, proceeding, Clinch River, supra, 4 NRC at 75; or (iii) where the deci-sionunderreviewhasapotentially"pervasiveimpactonNRCpractice[.]"

Catawba, supra, 17 NRC at 1044 The Licensing Board's decision which permitted Intervenor to depose a named NRC Staff official to obtain l information to cure the deficiencies in a contention previously submitted 1

I and rejected by the Licensing Board conflicts with Comission policy and

. case law, has-already occasioned substantial delay to the proceeding, 1

and, if left uncorrected, will have a pervasive impact on NRC practice.

Consequently, it is necessary for the Comission to exercise its _sua sponte review authority at this time to provide guidance to keep the l hearing within appropriate bounds.

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s

M In permitting Intervenor to obtain discovery on,an unadmitted conten-tion, the Licensing Board misconstrues both the Commission's regulations

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relating to discovery and the scope of its own authority. As Applicant observes (Applicant's Petition at 3),10 C.F.R. 9 2.740 limits discovery "to those matters in controversy which have been identified" by the presiding officer. A matter is deemed to be in controversy by the acceptance of a contention that satisfies the specificity and basis requirements of 10 C.F.R. 9 2.714(b). See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2, ALAB-687, 16 NRC 460 (1983). Despite the Appeal Board's admonition in _ Catawba that an intervenor is not to be permitted to file "a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicants or staff," 16 NRC at 468, the Licensing Board apparently did not regard as binding the Comission's discovery and contention rules. For example, Intervenor had "an ironclad obligation to examine the publicly available documentary material . . . with sufficient care to enable it to uncover any information that could serve as the foundation" for its quality assurancecontention.E/ The Licensing Board, however, relieved Interve-nor of this burden by allowing it to depose a high-ranking Staff official and that deposition enabled Intervenor to discover the specific documentary materials upon which it based its new quality assurance contention. In

. doing so, the. Licensing Board failed to appreciate fully the reason why 10 C.F.R. 5 2.740 precludes discovery relating to matters not in contro-a versy. The reason, of course, is that discovery is intended to enable an e 5/

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982).

1 intervenor to gather evidence with which to prove its allegation (an allegation;findingexpressioninintervenor'scontention),nottoprovide an avenue by which an Intervenor obtains the information necessary to deter-

. mine whether it wishes to raise an allegation in the first instance. It should be noted also that the Licensing Board adopted this extraordinary procedure in the apparent belief that because a QA/QC program serves an important safety function that it necessarily must be examined in the hearing.

See LBP-85-11 at 41; 21 NRC 609, 636. This is an arrogation of authority.

It is by now well setticd that a Licensing Board's authority is limited to the adjudication of matters properly placed in controversy by the parties or by the Licensing Board pursuant to its sua sponte power under 10 C.F.R. $ 2.760a. E.g. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101, 1102-03 (1982). Matters not placed in contro-versy by the parties or raised sua sponte by the Licensing Board must be left to the Staff for resolution. Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3), ALAB-319, 3 NRC 188, 190 (1976).

Guidance from the Commission is necessary at this time to correct the Licensing Board's misconceptions and to ensure that future licensing boards recognize that 10 C.F.R. $ 2.740 (which limits discovery only tothosemattersplacedincontroversy)and10C.F.R.$2.714(b)(which requires a contention to be set forth with reasonable specificity) are not discretionary but mandatory in nature.

Finally, it should be noted that even in the absence of section 2.786(a), the Commission is empowered to review the Appeal Board's denial of Applicant's request for directed certification. This is because the Commission has " inherent supervisory authority over the conduct of adjudicatory proceedings before the Commission, including the authority

to step in and rule on the admissibility of a contention before a Licensing Board." Clinch River, supra, 4 NRC at 75. In this connection, the Commission stated:

No party has a vested right to the continuing effectiveness of an erroneous Licensing Board ruling which happens to favor it. In the interest of orderly resolution of disputes, there is every reason to step into a proceeding and provide guidance on important issues of law and policy. ,

I_d. at 76. The decision of which Applicant seeks review raises signifi-cant questions regarding the proper application of the Commission's contention and discovery regulations. Moreover, were Applicant's objec-tions to the Licensing Board's decision to be sustained, Intervenor's r

quality assurance contention -- by far the larger of the two contentions 6

remaining in this proceeding _/ -- would be dismissed and the proceeding thereby shortened materially. As the Commission itself has noted, where 6/ Rorem Contention 1, the only other contention in the proceeding raises emergency planning questions. That contention reads in its entirety:

Intervenor contends that an adequate emergency plan for Braidwood station should include:

la) a program for informing the public within 10 miles of the Station of the means for obtaining instructions for evacuation or other protective measures in the event of a radiological emer-

. gency originating at the Station; and lb) assurance that institutions within 10 miles of the Station, such as nursing homes, can be evacuated or adequately protected in the event ,

of a radiological emergency. l The quality assurance contention admitted by the Licensing Board, however, exceeds thirty pages in length and challenges the adequacy of Applicants' compliance with. virtually every aspect of 10 C.F.R. Part 50, Appendix B. ,

the imrrediate resolution of an important question of law or policy "could materially; shorten the proceedings and guide the conduct of future proceedings" it would be " wasteful" and " counterproductive" for the Com-mission to refrain from providing that guidance. Seabrook, supra, 5 NRC at 517. For these reasons, the Commission should review ALAB-817 as well as the underlying Licensing Board decision admitting Intervenor's quality assurance contention.

l IV. CONCLUSION For the reasons stated herein, the Commission should waive the applicability of 10 C.F.R. 5 2.786(b)(1) and grant Applicant's petition for review of ALAB-817. In the alternative, the Commission should review that determination and the Licensing Board's decision in LBP-85-11 pursuant to either its sua sponte review authority under 10 C.F.R.

Q 2.786(a) or its inherent supervisory authority over the conduct of Commission adjudicatury proceedings.

Respectfully submitted, f

d regory lan erry bb-Counsel or NRC Staff '

Dated at Bethesda, Maryland this 8th day of October,1985 e

t e