ML20148T142
| ML20148T142 | |
| Person / Time | |
|---|---|
| Site: | Black Fox |
| Issue date: | 11/24/1978 |
| From: | Skrutski R NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 7812040317 | |
| Download: ML20148T142 (13) | |
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. , NRC PUBLIC DOCUMENI R00Af UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , g c;) 'b ATOMIC SAFETY AND LICENSING APPEAL BOARD *YEU u
4 Richard S. Salzman, Chairman 2 NOV2 + 1378)
Dr. W. Reed Johnson g] ,,,,, ,, .s, s .y..e 5 Jerome E. Sharfman % ";V t'""*
s b 6 In the Matter of g a PUBLIC SERVICE COMPANY OF OKLAHOMA, )
ASSOCIATED ELECTRIC COOPERATIVE, INC . ) i and WESTERN FARMERS ELECTRIC ) Docket Nos. STN 50-556 COOPERATIVE', INC. ) STN 50-557 I
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(Black Fox Station, Units 1 and 2) )
I SERtTo MOV 2 71978 Mr. Andrew T. Dalton, Jr., Tulsa, Oklahoma, for Ilene H. Younghein et al., intervenors.
Messrs. Michael I. Miller and Paul M. Murnhy, Chicago, Illinois, and Joseph L. Gallo, Washington, D. C., for i Public Service Co. of Oklahoma,et al., applicants. )
MEMORANDUM AND ORDER I
November 24, 1978 (ALAB-508) 1/
In AIAB-50 5,- we denied intervenors' October 16th motion to stay the effectiveness of a Licensing Boarg decision authorizing a " limited work authorization" (LWA)
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for the Black Fox nuclear plant. The intervenors and l the applicants have moved us to reconsider discrete aspects 1/ 8 NRC (November 2, 1978).
J/ LBP-78-26', 8 NRC 102 (July 24, 1978).
1 8(Lc>i o M 1 i
l 3/ ,
1 of our decision. We turn first to intervenors ' concerns.
I.
1 Our denial of a stay was predicated on intervenors' failure to address three out of the four factors that Commission regulations require us to consider in deciding whether to grant that relief. See, 10 C.F.R. 22.788 (e) .--4/
Intervenors ask us to reconsider, contending that they were not obliged to discuss the other factors because their claim on the merits is patently correct. They assure us that the issuance of an LWA in the absence of either a state cer-tification under 5401(a) (1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. E1341 (a) (1) , or a formal waiver of that certification by the state concerned or the Environmental Protection Agency, was an illegal act 3/ The staff responded to neither motion for reconsiderarion and the applicants did not respond to intervenors' motion.
Under our practice, such responses are not expected unless we call for them. Maine Yankee Atemic Power
.C_o . (Maine Yankee Station), ALAB-166, 6 AEC 1148,, -
1150 n. 7 (1973).
_4,/ Those factors are:
(1) Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay is granted; (3) Whether the granting of a stay would harm ether parties; and (4) Where the public interest lies.
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that in and of itself warrants a stay.
Intervenors confuse the merits of their appeal with
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the showing needed to obtain a stay. We pointed out in 6/
Se ab rook , -- referring to the considerations bearing on the right to such interim relief now codified in 10 C.F.R. E2.788, that, "[i]n our view, no single one of the four Vircinia Petroleum Jobbers factors is of itself necessarily dispositive; rather, the strength or weakness of the showing by the novant on a particular factor influences principally how strong his showing on the other factors must be in order to justify l l
the sought relief." Had intervenors made a very strong )
showing on the one factor they discussed -- the likelihood of their success on the merits -- a correspondingly lesser showing might have sufficed on the others. To prevail on that factor alone, however, they had to make "an overwhelming 7/
showing of likelihood of success on the merits * * * *."--
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In intervenors ' words: "When a statute specif.ically
_5/ forbids an act, questions of harm, irreparable ~ injury i
i and public interest have already been decided by the Congress. In such instances, it is necessary to !
demonstrate only that the forbidden act has occurred and to request relief." Intervenors cite no authority for this proposition.
Public Service Co. of New Hamcshire (Seabrook Station,
--6/ Units 1 and 2) ALAB-338, 4 MRC 10, 14 (1976 ) (footnote omitted).
7/ Florida Power & Licht Co (St. Lucie Plant, Unit No. 2) ,
ALAS-404, 5 NRC 1185, 1189 (1977). To put it another way, had we been able to say that intervenors' "no waiver" conclusion was ineluctable, we could have treated their motion as one for summary reversal.
In this case,the Board below made detailed findings in support of its conclusion that certification had in fact been waived. See 8 MRC at 121-23. For us to decide whether the Board erred in this regard requires an extended review l of the evidence of record and a careful analysis of the l l
governing law. .
It would be inappropriate for us to under- I take that task now, without the benefit of a full briefing on the merits from the other side and, in all likelihood, oral argument as well. In these circumstances, intervenors' failure even to attempt to demonstrate that the other three factors militate strongly in favor of granting the relief they seek leaves us no choice but to deny once again their request for a stay. !
II.
For their part, the applicants understandably do not complain of the result reached in ALA3-505. Rather, their request for reconsideration is directed exclusively..to the criticism leveled in the second portion of that opinion against the papers they filed in oppesition to the stay motion. Applicants insist that the criticism was un-warranted and therefore should now be withdrawn.
1 1
1 1
More specifically, at issue is the propriety of the I failure of applicants' counsel to have mentioned in their l
brief that, on September 5th, intervenors' counsel had l l
l written the Licensing Board specifically requesting that l l
it revoke the limited work authorization because it was l l
l issued in violation of the certification requirements of the Federal Water Pollution Control Act. The letter had l gone on to give notice the.t, unless that request were honored, intervenors intended to seek a writ of mandamus in a federal district court ccmpelling the Board to take that action.
In ALA3-505, we stated that counsel for the applicants l
had a duty at least to acknowledge the existence of the l September 5th letter, given their argument to us that the stay motion was not made until eighty days after the issuance of the July 24th partial initial decision (L3P-73-26, supra) and that the intervenors had not heeded our admonition:
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earlier cases that stay relief should be first sought from the Licensing Board. We recognized that the letter did not explicitly request a stay and, further, that it had a
been treated (and denied on September 29) by the Licensing Board as in effect a motion for reconsideration of the July 24th order. Nonetheless, we expressed the view that what was being sought,-(i.e., a lifting of the limited work authoriEation) was in essence the same relief which a formal stay motion would have requested. Further, as should have been perfectly obvious to the applicants, given the Licensing Board's September 29 order any further attempt to obtain a lif ting of the limited work authorization by that Board would have been futile. Thus, even if the September 5 letter were not regarded the equivalent of a stay motion, the applicants still could not have fairly argued (without reference to the letter) that the intervenors should have for-mally moved for a stay from the Licensing Board before filing their motion with us.
ALA3-505, supra, slip opinion, p. 9 n. 14, 8 NRC at
- n. 14. We went on to criticize counsel for applicants for not fulfilling their obligation of candor when they f ailed 1 to call our attention to the September 5th letter and its treatment by the Licensing Board. Id., slip opinien, pp.
9-10, 8 NRC at .
7t:
Applicants' counsel tell us that we were in error 8/
about this and that, contrary to our further suggestion, l 1
_9/ At slip opinion, p. 10 n. 16; 3 NRC at n. 16.
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7-l they were justified in making the arguments they advanced I without any reference to the September 5th letter. That is because, in their view, the letter was not a motion at all but merely a notice of intent to institute a legal l proceeding against the Licensing Board if it did not ;
change its decision. They claim that this interpretation is supported by (1) the failure of intervenors to have served the letter upon applicants' counsel, (2) the absence of any discussion in the letter of the four 9/
factors governing stay relief-~ and (3) two telephone conversations which they say they had with intervenors' counsel.
None of these factors proves their point. The lack of service implies nothing with regard to the purpose of the letter; no matter what its objective may have been, intervenors' counsel was under a plain duty to serve it on all other parties to the proceeding. 10 CFR 552.701,, 2.780.
Similarly, little weight can be attached to intervenors' failure to address the four stay factors in the letter,
_9,/ See n. 4, supra.
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- in light of the fact that the intervenors' motion to us --
i expressly seeking a stay -- was equally deficient in that respect.
3 The third ground urged on us by counsel for the appli-cants is based upon an affidavit appended to their most 4
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recent filing. In it, one of them states that, in a telephone conversation following his receipt of the September 5th letter, he was advised by intervenors' counsel that the letter was not intended to be a request i
j for affirmative relief but only the statutory notice re-quired prior to the institution of a lawsuit against the
. Licensing Board under the Federal Water Pollution Control Act. The affidavit goes on to aver that this advice was l
i repeated in a second telephone conversation which took 4
place subsequent to the issuance of ALAB-505.
The matters alleged in the affidavit are irrelevant to the issue here. Applic ants ' attorneys admit (aff,idavit, paragraph 4) that they filed a pleading in response to the 10/
September 5th letter. Thus, they treated it as a motion.
J j i.0/ Though they say that they did so " cut of an abundance
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j of caution", they showed no similar abundance of cau-tion in telling us that their review of the pleadings 4
(FOOTNOTE CONTINUED ON NEXT PAGE) .
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-I I 9- I It is beyond dispute that the Licensing Board also treated the letter as a motion and denied it. Applicants' counsel should therefore have disclosed it to us, so that we could evaluate its nature for ourselves. Their failure to do so left open the possibility that we might be misled into thinking that relief from the partial initial decision had not been sought before the Licensing Board, particularly as applicants urged that intervenors' failure to seek relief from that Soard was an ir.portant f actor militating against the grant of a stay. Of course, had applicants' counsel mentioned the letter, they would have been free to explain it or characterize it in any way they liked. Our criticism was based on their failure to mention it at all. l Counsel for applicants now argue that our " judgment that the Feetember 5th letter could be otherwise construed 11/
as a me o stay is clearly a doubtful one."-- But we j l
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10/ (For
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CONTINUED FROM PREVIOUS PAGE) filt this case uncovered nothing to support the alles . ion in intervenors' motion papers that the Licensing Board had refused to grant the relief re-quested in the stay motion. See pp.11-12, infra.
Their treatment of the letter as a motion at that earlier time renders suspect their thesis that they could not possibly have regarded it as one when they filed their brief in opposition to the stay motion before us. If it was subject to being interpreted as a motion by those not privy to their first phone call to intervenors' attorneys,they chould have at least mentioned it, so that we would not be misled !
by the argument they were making. !
l 11/ Motion for reconsideration, p. 4.
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! never construed it as a motion for a stay; we merely said j l
l I that it souaht "in essence the same relief which a formal
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12/ l stay motion would have requested."-- On reflection, we l l
realize that even that is not quite correct. A stay motion would only have sought suspension of the limited work authori- l zation pending appeal, whereas the September 5th letter de-manded its revocation. It is true that a licensing board's dectsion to grant reconsideration might require it to admit l l
that it made a mistake, whereas a stay may be granted on i 13/
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equitable grounds. Therefore, as a general proposition, denial of reconsideration by a licensing board does not ,
1 dictate its denial of a stay. However, in this case, intervenors urged the same single ground in support of the stay motion made to us (legal error in the partial initial decision) that they had urged in their motion for recon-sideration below. Therefore, we believe that we were correct 14/
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i in concluding in ALAB-505 that application for a stay from l l
the Licensing Board in the circumstances of this cas'e 2would have been futile. Thus, applicants' argument (made in i
12 / ALAB-50 5, sucra, slip opinion, p. 9 n. 14, 3 NRC at
- n. 14.
l3 / See 10 C.F.R. 52.78 S (e) .
l4 / Slip opinion, p. 9 n. 14, 8 NRC at
- n. 14.
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opposition to the stay motion) that the motion should have been first addressed to the Licensing Board had no merit.
Of course, we would not have been able to reach that con-clusion had we not become aware on our own of the September 5th letter, the existence of which applicants' counsel chose not to mention to us.
Finally, nowhere in their motion for reconsideration do applicants' counsel-reply to the following point which 15/
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we made in footnote 16 of ALA3-505:
Indeed, in this instance there might well be more involved than simply a failure to mention relevant facts. In their stay motion (at p. 2), the inter-venors stated, without elaboration, that the Licensing Board had refused "to grant the relief requested". The applicants' response to this assertion (at p. 3) was that the intervenors "are simply wrong." Intervenors provide no citation in support of their assertion and, based on [their]
review of the pleadings filed in this case, Applicants can find none." Even giving the applicants the benefit of all doubt with respect to the import of the intervenors' September 5 letter, we nonetheless find that statement misleading in the extre.7.g.
i Even though the relief sought in the September 5th letter was not precisely that sought in the stay motion, it was similar enough so that counsel could not say with complete 15/ Slip opinion, p. 10; 8 NRC at .
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]
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candor that he had searched all the pleadings filed in the case and could not find any support for intervenors' claim that the Licensing Board had refused them the relief re-quested. The appropriate course would have been for counsel to mention the September 5th letter and its disposition by 16/
the Licensing Board, and then to argue about its significance.
The motions for reconsideration are denied.
It is so ORDERED.
FOR THE APPEAL BOARD d?t1dlhtt./ .
Romaphe M. Sktutski Secretary to the Appeal 3 card
[The cencurring opinion of Mr. Salzman follows.]
16/ Applicants now advise us that, although (as reflected
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by the listing of counsel in ALAB-505) only one of their attorneys signed the opposition to the stay motion, in actuality three were involved directly or indirectly in its preparation. Although we see no reason to add the names of the other two to the ALAB-505 listing, we note that assertion here. All three attorneys signed the motion for reconsideration new at bar and each is accordingly included in the listing of counsel in this opinion.
Mr. Salzman, concurrinc:
I join in Part I of the Board's opinion and, for the reasons which follow, concur in Part II.
My assignment to this case occurred atter ALAB-505 was rendered and I did not participate in that decision.
I concur in my colleagues' judgment, however, that the motion to reconsider and withdraw the criticism directed ct applicants' counsel should be denied. Even if inter-venors did not explicitly ask the Licensing Board to " stay" the effectiveness of the LWA, counsel was cognizant of their letter to that Board and of its treatment by the Board as a motion for relief that, if granted, would have obviated the need for a stay. In these circumstances, it was less than candid -- if not potentially misleading -- to oppose intervenors' request to this Board for a stay with the unqua-lified representation that they had not sought relief below.
We ought to be able to rely on counsel's represent 1tions about what transpired in the course of the proceeding. We l could not do so here. !
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