ML20205K527

Supplemental Brief Re Contentions 16,17 & 18 on Adequacy of Water Sampling Procedures at Various Sample Points. Certificate of Svc Encl

ML20205K527
Person / Time
Site:	Harris
Issue date:	02/24/1986
From:	Runkle J CONSERVATION COUNCIL OF NORTH CAROLINA, RUNKLE, J.D.
To:
References
CON-#186-219 OL, NUDOCS 8602270495
Download: ML20205K527 (5)

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00CHETED February 24, 19860SNRC UNITED STATES OF AMERICA EB 26 R2:07 NUCLEAR REGULATORY COMMISSION OFFitE :F 7 00CMETuu; s _ w , 3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD OEANDf In the Matter of: )

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Carolina Power & Light Company and ) Docket No. 50-400 OL NC Eastern Municipal Power Agency )

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(Shearon Harris Nuclear Power Plant) )

CONSERVATION COUNCIL'S SUPPLEMENTAL BRIEF REGARDING CONTENTIONS 16, 17, AND y Pursuant to the Appeal Board's request following the oral arguments on February 5, 1986, now comes the Conservation Council with a supplemental brief regarding our Contentions 16,'17, and 18. These contentions were raised on our Supplement to Petition to Intervene, dated May 14, 1982, and deal with related subjects, whether water sampling procedures at various sample points are adequate to protect drinking water quality and public health.

The issue that the Appeal Board has raised, that is, whether res judicata or collateral estoppel precludes the litigation of these contentions at the operating license stage, can be answered negatively.

Rather than present a full distinction between the two legal concepts, suffice it to say that res judicata is limited to decisions based on identical causes of actions already settled between two parties while collateral estoppel more broadly effects specific issues already decided 1

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regardless that the cause of action is different. In the context of decisions on nuclear power plant construction permits or operating licenses, the doctrine of collateral estoppel addresses both concepts.

There can be no collateral estoppel in the present matter as the specific issues raised in Contentions 16, 17, and 18 were not raised at the construction permit stage by the Conservation Council, or indeed, any other intervenor. Collateral estoppel is limited by case law to prior judgments between the same parties on different causes of actions as to the specific issues'which were decided upon in the prior proceeding. (See for example, E. I. duPont de Nemours v. Union Carbide Corporation, D.C. Ill., 250 F.

Supp. 816, 819). The Commission in Farley, stated that collateral estoppel (as well as res judicata) could only be entirely ruled out of NRC proceedings if there was an attempt to "relitigate precisely the same iqsue" at the construction permit and operating licensing stages. Alabama Power (Farley Units 1 & 2,), CLI-74-12, 7 AEC 203 (1974). The contention raised by the intervenors in Farley went to the "need for power" which had been directly raised at the construction permit stage not to the adequacy of water monitoring and sampling procedures as in the instant matter.(1)

In discussing the application of res judicata and collateral estoppel, the Commission ruled that the doctrines should be " applied with sensitive regard for any supported assertion of changed circumstances or the possible existence of some special public interest factors in the particular case..."

The Commission then remanded the matter to the Licensing Board to provide (1) That the Farley decision addressed the "need for power" issue may in itself be enough to distinguish that matter from the one before the Appeal Board. It is our understanding that the Commission's actions and regulations at 10 CFR 51.21 precluding litigation of the "need for power" at the operating license stage are being vigorously challenged in the courts.

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the parties the opportunity to make such a showing. Again, the issues raised in Contentions 16, 17, and 18 were not raised at the construction permit stage and it was in fact impossible for them to be raised at that time because the Applicants had not finalized their plans for its water sampling system until the operating license stage as part of the Environmental Report. The necessity of providing prompt reporting of the contamination of drinking water supplies is so overwhelming in terms of the public interest that not to litigate these issues draws serious questions to the Licensing Board's ability to find that the plant's monitoring system protects public health from exposure to radioactive emissions.

The Farley decision in its discussion reaffirms the position embodied in the Federal Rules of Civil Procedure, Rule 8(c), that requires matters of estoppel and res judicata must be made affirmatively by the party aeserting the defense. Neither the Applicants or the Staff in their filings in opposition to the admission of Contentions 16,17, and 18 or in its response to our appeal of the Licensing Board's Partial Initial Decision on environmental issues asserted this matter. We question whether the Appeal Board, on its own initiative, can bar the issues raised in the contentions at this point in the proceeding without it being asserted below.

That the Commission in Farley remanded the matter back to the Licensing Board for further argument is important in that it provided the Intervenor the opportunity to respond to the Applicants and Staff af ter the issue was raised. If the Appeal Board makes a decision on the matter based solely on

. the briefs filed simultaneously today, the Intervenor is not given the opportunity to respond to specific assertions raised by the other parties.

In conclusion, collateral estoppel and the related doctrine of res judicata as expressed in the Farley decision in no way bar the Licensing 3

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Board from considering the Conservation Council's Contentions 16, 17, and ,

18. We appreciate the Appeal Board's close attention to the matters raised in our appeal of this matter.

Respectfully submitted, John Runkle i Counsel for the Conservation Council 307 Granville Road Chapel Hill, NC 27514 This is the 24th day of February, 1986.

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CERTIFICATE OF SERVICE I hereby certify that this Supplemental Brief Regarding Contentions 16, if 0LMERD and 18 were served on the following persons by deposit in the U. S. Mail, USNac postage prepaid, or by hand-delivery.

Thomas S. Moore, Chairman (appeals'only) M. Travis Payne 136 FEB 26 Pl2 :07 Atomic Safety & Licensing Appeal Board PO Box 12643 US Nuclear Regulatory Commission Raleigh, NC 27605 Washington, D. C. 20555 ((hf[;Ng3ggfy[

Dr. Richard D. Wilson BRANcq Dr. Reginald Gotchy (appeals only) 729 Hunter Street Atomic Safety & Licensing Appeal Board Apex, NC 27502 US Nuclear Regulatory Commission Washington, D. C. 20555 Wells Eddleman 812 Yancey St.

Howard A. Wilber (appeals only) Durham, NC 27701 Atomic Safety & Licensing Appeal Board US Nuclear Regulatory Commission Richard E. Jones Washiagton, D. C. 20555 Dale Hollar Legal Department James L. Kelley Carolina Power & Light Atomic Safety & Licensing Board PO Box 1551 US Nuclear Regulatory Commission Raleigh, NC 27602 Washington, D. C. 20555 Thomas A. Baxter Glenn O. Bright Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Board 1800 M Street, NW US Nuclear Regulatory Comnission Washington, D. C. 20036 Washington, D. C. 20555 Robert Gruber Dr. James H. Carpenter Public Staff--Utilities Commission Atomic Safety & Licensing Board PO Box 991 US Nuclear Regulatory Commission Raleigh, NC 27602 Washington, D. C. 20555 H. Al Cole, Jr.

Docketing and Service (3 copies) Attorney General's Office Office of the Secretary PO Box 629 US Nuclear Regulatory Commission Raleigh, NC 27602 Washington, D. C. 20555 Spence W. Perry (emerg. planning)

Charles A. Barth Associate General Counsel Office of the Executive Legal Director FEMA US Nuclear Regulatory Commission 500 C Street, SW, Ste. 480 Washington, D. C. 20555 Washington, D. C. 20740 Bradley W. Jones NRC--Region II This is the 24th day of 101 Marrietta Street February, 1986.

Atlanta, CA 30303 Daniel F. Read PO Box 2151 John Runkle Raleigh, NC 27602 Attorney at Law