ML20246P453
| ML20246P453 | |
| Person / Time | |
|---|---|
| Issue date: | 04/30/1989 |
| From: | NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| NUREG-0386, NUREG-0386-D05, NUREG-386, NUREG-386-D5, NUDOCS 8905220199 | |
| Download: ML20246P453 (845) | |
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's NUREG-0386
' /~/ (_ . DIGEST No. 5 o. UNITED STATES NUCLEAR REGULATORY COMMISSION STAFF PRACTICE AND PROCEDURE DIGEST Commission, Appeal Board and Licensing Board Decisions July 1972 - June 1988 O l Manuscript Completed: February 1989 Date Published: April 1989 Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 1 (% hok NR G DR 0386 R _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . - . - - - - - - - - - - - _ _ _ _ _ _ _ _ D
AVAILABILITY NOTICE i Availability of Reference Materials Cited in NRC Publications Most documents cited in NRC publications will be available from one of the following sources:
- 1. The NRC Public Document Room, 2120 L Street, NW, Lower Level, Washington, DC 20555~
- 2. The Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082.
Washington, DC 20013-7082
- 3. The Nations! Technical Information Service, Springfield, VA 22161 Although the listing that follows represents the majority of documents cited in NRC publica-tions, it is not interided to be exhaustive.
Referenced documents available for inspection and copying for a fee from the NRC Public Document Room include NRC correspondence and internal NRC memoranda; NRC Office of j inspection and Enforcement bulletins, circulars, information notices, inspection and investi-gation notices; Licensee Event Reports; vendor reports and correspondence; Commission papers; and applicant and licensee documents and correspondence. ] The following documents in the NUREG series are available for purchase from the GPO Sales Program: formal NRC staff and contractor reports, NRC-sponsored conference proceed-ings, and NRC booklets and brochures. Also available are Regulatory Guides, NRC regula-tions in the Code of Federal Regulations, and Nuclear Regulatory Commission issuances. Documents available from the National Technical information Service include NUREG series reports and technical reports prepared by other federal agencies and reports prepared by the Atomic Energy Commission, forerunner agency to the Nuclear Regulatory Commission. Documents available from public and special technical libraries include all open literature items, such as books, journal and periodical articles, and transactions. Federal Register notices, federal and state legislation, and congressional reports can usually be obtained from these libraries. Documents such as theses, dissertations, foreign reports and translations, and non-NRC conference proceedings are available for purchase from the organization sponsoring the publication cited. Single copies of NRC draft reports are available free, to the extent of supply, upon written ! request to the Office of Information Resources Management, Distribution Section, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Copies of industry codes and standards used in a substantive manner in the NRC regulatory process are maintained at the NRC Library, 7920 Norfolk Avenue, Bethesda, Maryland, and are available there for reference use by the public. Codes and standards are usually copy-righted and may be purchased from the originating organization or, if they are American National Standards, from the American National Standards Institute,1430 Broadway, New York, NY 10018.
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NOTICE TO RECIPIENTS OF NUREG-0386 i This edition replaces in their entirety previous editions of the Digest. Revision No. I to Digest No. 5 is also being distributed at this time and contains replacement pages to Digest No. 5. i l I ( h (.) 9% (
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'v UNITED STATES NUCLEAR REGULATORY COMISSION , o. STAFF' PRACTICE AND PROCEDURE DIGEST (The September,1988 Update includes Commission, Appeal ~ Board, and Licensing Board Decisions issued from July 1, 1972 through. June 30,1988.) O i -" ^^"" - ---" - -mm__m._2. __m__2m_m..A__ _ _ _ _ _ _ , _ _ _ _ _ _ , _ , _ __ _ _ _ _ _
i PREFACE This fifth edition of the NRC Staff Practice and Procedure Digest contains a digest of a number of Commission, Atomic Safety and Licensing Appeal Board, Land Atomic Safety and Licensing Board decisions issued during the period from July 1,1972 to June 30, 1988 interpreting the NRC's Rules of Practice in 10 CFR Part 2. This edition replaces in their entirety earlier editions and supplements and includes appropriate changes' reflecting :the amendments to the Rules of Practice effective through June 30, 1988.
.The Practice and Procedure Digest was originally prepared by attorneys'in the NRC's .0ffice of the Executive Legal Director (now, Office of the General Counsel) as an internal research tool. Because of its proven usefulness to those attorneys, it was decided that it might also prove useful to members of the public. Accordingly, the decision was made to publish the Digest and subsequent editions thereof. This edition of the Digest was prepared by attorneys from Aspen Systems Corporation pursuant to Contract number 18-87-316.
Persons using this Digest are placed on notice that it may not be used as an authoritative citation in support of any position before the Commission or any of its adjudicatory tribunals. Persons using this Digest are also placed on notice thtt it is intended for use.only as an initial research tool, that it may, and likely does, contain errors, including errors in analysis and O i interpretation of decisions, and that the user should not rely on the Digest analyses and interpretations but must read, analyze and rely on the user's own analysis of the actual Commission, Appeal Board and Licensing Board decisions cited. Further, neither the United States, the Nuclear Regulatory Commission, Aspen Systems Corporation, nor any of their employees makes any expressed or implied warranty or assumes liability or responsibility for the accuracy, completeness or usefulness of any material presented in the Digest. 1 The Digest is roughly structured in accordance with the chronological sequence of the nuclear facility licensing process as set forth in Appendix A to 10 CFR Part 2. Those decisions which did not fit into that structure are dealt with in a section on " general matters." Where appropriate, particular decisions are indexed under more than one heading. Some topical headings contain no decision citations or discussion. It is anticipated that future updates to the Digest will utilize these headings. This edition of the Digest will be updated in the future. The updates will be prepared in the form of replacement pages. We hope that the Digest will prove to be as useful to the members of the pubiic as it has been to the members of the Office of the General Counsel. We would appreciate from the users of the Digest any comments or suggestions which would serve to improve its usefulness. Office of the General Counsel O U.S. Nuclear Regulatory Commission U iii
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TABLE 0F CONTENTS N0_II References are to Chapter Title and page number. Chapter Abbreviation Applications for License / Permit An Prehearing Matters Pre Hearings H Post Hearing Matters PH Appeals APP General Matters GM 1.0 APPLICATION FOR LICENSE / PERMIT An 1 1.1 Applicants An 1 1.2 Renewal Applications An 1 1.3 ADDlications for Early Site Review An 1 (
's) 1.4 Form of Application for Construction Permit /Operatino License An 2 1.4.1 Form of Application for Initial License / Permit An 2 1.4.2 Form of Renewal Application for License / Permit An 2 1.5 Contents of Application An 2 1.5.1 Incomplete Applications An 2 1.5.2 Material False Statements in Applications An 2 1.6 0;cketino of License / Permit Application An 5 1.7 Notice of License / Permit Application An 5 1.7 1 Publication of Notice in Federal Reaister An 5 1.7.2 Amended Notice After Addition of New Owners An 6 1.7.3 Notice on License Renewal An 6 1.8 Staff Review of License / Permit Application An 6 1.9 Withdrawal of Application for License / Permit An 9 1.10 Abandonment of Application for License / Permit An 14 2.0 PREHEARING MATTERS (See 3.3) Pre 1 Q' \
2.1 Schedulina of Hearinas (SEE 3.3.1 to 3.3.5.2) Pre 1 MARCH 1987 TA8LE OF CONTENTS 1
1 i i 2 2.2 Necessity of Hearina Pre 1 2.3 Location of Hearina Pre 3 l 2.3.1 Public Interest Requirements Affecting Hearing Location Pre 3 1 (Reserved) 2.3.2 Convenience of Litigants Affecting Hearing Location Pre 3 (SEE 3.3.5.2) 2.4 Issues for Hearina Pre 3 (SEE 3.4 to 3.4.6) j 2.5 Hotice of Hearina Pre 3 2.5.1 Contents of Notice of Hearing Pre 4 2.5.2 Adaquacy of Notice of Hearing Pre 4 2.5.3 Publication of Notice of Hearing in Federal Reaister Pre 4 2.5.4 Requirement to Renotice Pre 5 ) i 2.6 Prehearina Conferences Pre 6 2.6.1 Transcripts of Prehearing Conferences Pre 6 ; 2.6.2 Special Prehearing Conferences Pre 7 { 2.6.3 Prehearing Conference Order Pre 7 4 2.6.3.1 Effect of Prehearing Conference Order Pre 7 2.6.3.2 Objections to Prehearing Conference Order Pre 7 i 2.6.3.3 Appeal from Prehearing Conference Order Pre 8 2.7 Conference Calls Pre 8 2.8 Prehearina Motions Pre 8 2.8.1 Prehearing Motions Challenging ASLB Composition Pre 8 2.8.1.1 Contents of Motion Challenging ASLB Composition Pre 9 , 2.8.1.2 Evidence of Bias in Challenges to ASLB Composition Pre 9 2.8.1.3 Waiver of Challenges to ASLB Composition Pre 10 2.9 Intervention Pre 10 2.9.1 General Policy on Intervention Pre 10 2.9.2 Intervenor's Need for Counsel Pre 11 2.9.3 Petitions to Intervene Pre 12 2.9.3.1 Pleading Requirements Pre 16 2.9.3.2 Defects in Pleadings Pre 19 2.9.3.3 Time Limits / Late Petitions Pre 20 2.9.3.3.1 Time for Filing Intervention Petitions Pre 21 2.9.3.3.2 Sufficiency of Notice of Time Limits on Intervention Pre 21 2.9.3.3.3 Consideration of Untimely Petitions to Intervene Pre 21 2.9.3.3.4 Appeals from Rulings on Late Intervention Pre 35 2.9.3.3.5 Mootness of Petitions to Intervene Pre 37 2.9.3.4 Amendment of Petition Expanding Scope of Intervention Pre 37 2.9.3.5 Withdrawal of Petition to Intervene Pre 37 2.9.3.6 Intervention in Antitrust Proceedings Pre 38 SEPTEMBER 1988 TABLE OF CONTENTS 2
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- 2. 9:4 ' Interest and Standing for Intervention Pre 40 2.9.4.1 Judicial Standing to Intervene Pre 42 2.9.4.1.1 " Injury-in-Fact" and " Zone of Interest" Tests for Standing to Intervene Pre 42 2.9.4.1.2 Standing of Organizations to Intervene Pre 49 2.9.4.1.3 Standing to Intervene in Export Licensing Cases Pre 54 2.9.4.1.4 Standing to Intervene in Specific Factual Situations Pre 55 2.9.4.2 Discretionary Intervention Pre 58 2.9.5 Contentions of Interveners Pre 60 2.9.5.1 Pleading Requirements for Contentions Pre 65 2.9.5.2 Requirement of Oath from Interveners Pre 71 2.9.5.3 Requirement of Contentions for Purposes of Admitting Petitioner as a Party Pre 71 2.9.5.4 Material Used in Support of Contentions Pre 73 2.9.5.5 Timeliness of Submission of Contentions Pre 74 2.9.5.6 Contentions Challenging Regulations Pre 84 2.9.5.7 Contentions Involving Generic Issues Pre 86 2.9.5.8 Contentions Challenging Absent or Incomplete Documents Pre 88 2.9.5.9 Contentions re Adequacy of Security Plan Pre 89
/'~'S 2.9.5.10 Defective Contentions Pre 90 1
('- ') 2.9.5.11 Discovery to Frame Contentions Pre 90 2.9.5.12 Stipulations on Contentions (Reserved) Pre 90 2.9.5.13 Appeals of Rulings on Contentions Pre 90 2.9.6 Conditions on Grants of Intervention Pre 91 2.9.7 Appeals of Rulings on Intervention Pre 91 2.9.7.1 Standards for Reversal of Rulings on Intervention Pre 93 2.9.8 Reinstatement of Intervenor After Withdrawal Pre 94 2.9.9 Rights of Interveners at Hearing Pre 94 2.9.9.1 Burden of Proof Pre 96 2.9.9.2 Presentation of Evidence Pre 96 2.9.9.2.1 Affirmative Presentation by Intervenor/ Participants Pre 96 2.9.9.2.2 Consolidation of Intervenor Presentations Pre 96 2.9.9.3 Cross-Examination by Interveners Pre 98 2.9.9.4 Intervenor's Right to File Proposed Findings Pre 98 2.9.9.5 Attendance at/ Participation in Prehearing Conferences / Hearings Pre 98 2.9.9.6 Pleadings and Documents of Interveners Pre 99 2.9.10 Cost of Intervention Pre 100 2.9.10.1 Financial Assistance to Interveners Pre 100 2.9.10.2 Interveners' Witnesses Pre 102
,s,_ 2.9.11 Appeals by Interveners Pre 102 t 2.9.12 Intervention in Remanded Proceedings Pre 102 V}
SEPTEMBER 1988 TABLE OF CONTENTS 3
4 O 4 2.10 Nonparty Participation - Limited Appearance and I Interested States Pre 102 2.10.1 Limited Appearances in NRC Adjudicatory Proceedings Pre 102 l 2.10.1.1 Requirements for Limited Appearance Pre 102 j 2.10.1.2 Scope / Limitations of Limited Appearances Pre 103 1 Participation by Nonparty Interested States 2.10.2 Pre 103 2.11 Discovery Pre 108 2.11.1 Time for Discovery Pre 108 I 2.11.2 Discovery Rules Pre 110 2.11.2.1 Construction of Discovery Rules Pre 113 2.11.2.2 Scope of Discovery Pre 113 2.11.2.3 Requests for Discovery During Hearing Pre 116 l 2.11.2.4 Privileged Matter Pre 116 i 2.11.2.5 Protective Orders Pre 125 l 2.11.2.6 Work Product Pre 126 2.11.2.7 Updating Discovery Responses Pre 127 , 2.11.2.8 Interrogatories Pre 127 1 2.11.3 Discovery Against the Staff Pre 129 2.11.4 Responses to Discovery Requests Pre 130 2.11.5 Compelling Discovery Pre 131 2.11.5.1 Compelling Discovery From ACRS and ACRS Consultants Pre 134 2.11.5.2 Sanctions for Failure to Comply with Discovery Orders Pre 134 2.11.6 Appeals of Discovery Rulings Pre 137 3.0 HEARINGS H1 3.1 Licensina Board H1 3.1.1 General Role of Licensing Board H1 3.1.2 Powers / Duties of Licensing Board H3 3.1.2.1 Scope of Jurisdiction of Licensing Board H4 3.1.2.1.1 Authority in Construction Permit Proceedings Distinguished I From Authority in Operating License Proceedings H 11 3.1.2.2 Scope of Authority to Rule on Petitions and Motions H 13 3.1.2.3 Authority of Licensing Board to Raise Sua Sponte Issues H 15 3.1.2.4 Expedited Proceedings; Timing of Rulings H 18 3.1.2.5 Licensing Board's Relationship with the NRC Staff H 20 3.1.2.6 Licensing Board's Relationship with Other Agencies H 24 3.1.2.7 Conduct of Hearing by Licersing Board H 25 3.1.3 Quorum Requirements for Licensing Board Hearing H 29 3.1.4 Disqualification of a Licensing Board Member H 30 3.1.4.1 Motion to Disqualify Adjudicatory Board Member H 30 3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member H 32 3.1.4.3 Improperly Influencing an Adjudicatory Board Decision H 36 3.1.5 Resignation of a Licensing Board Member H 36 SEPTEMBER 1988 TABLE OF CONTENTS 4 ,
L l l 1 l(3 ; I l j ( ,/ 5 1 3.2 Exoort Licensina Hearinas H 36 3.2.1 Scope of Export Licensing Hearings H 36 3.3 Hearina Schedulina Matters H 37 3.3.1 Scheduling of Hearings H 37 3.3.1.1 Public Interest Requirements re Hearing Schedule H 38 3.3.1.2 Convenience of Litigants re Hearing Schedule H 39 3.3.1.3 Adjourned Hearings (Reserved) H 39 3.3.2 Postponement of Hearings H 39 3.3.2.1 Factors Considered in Hearing Postponement H 39 3.3.2.2 Effect of Plant Deferral on Hearing Postponement H 40 3.3.2.3 Sudden Absence of ASLB Member at Hearing H 40 3.3.2.4 Time Extensions for Case Preparation Before Hearing H 41 3 3.3 Scheduling Disagreements Among Parties H 41 3.3.4 Appeals of Hearing Date Rulings H 42 3.3.5 Location of Hearing (Reserved) H 42 3.3.5.1 Public Interest Requirements re Hearing Location (Reserved) H 42 3.3.5.2 Convenience of Litigants Affecting Hearing Location H 43 3.3.6 Consolidation of Hearings and of Parties H 43 tp) (/ 3.3.7 3.4 In Camera Hearings J_ssues for Hearina H 44 H 44 3.4.1 Intervenor's Contentions - Admissibility at Hearing H 47 3.4.2 Issues Not Raised by Parties H 49 3.4.3 Issues Not Addressed by a Party H 51 3.4.4 Separate Hearings on Special Issues H 51 3.4.5 Construction Permit Extension Proceedings H 52 3.4.6 Export Licensing Proceedings Issues H 55 3.5 Summary Disposition H 55 (SEE ALSO 5.8.5) 3.5.1 Use of Summary Disposition H 58 3.5.1.1 Construction Permit Hearings H 58 3.5.1.2 Amendments to Existing Licenses H 58 3.5.2 Motions for Summary Disposition H 59 3.5.2.1 Time for Filing Motions for Summary Disposition H 60 3.5.2.2 Time for Filing Response to Summary Disposition Motion H 61 3.5.2.3 Contents of Motions / Responses (Summary Disposition) H 61 3.5.3 Summary Disposition Rules H 64 3.5.4 Content of Summary Disposition Order H 67 3.5.5 Appeals From Rulings on Summary Disposition H 68 3.6 Attendance at and Participation in Hearinas H 68 3.7 Burden and Means of Proof H 70 (A\j 3.7.1 Duties of Applicant / Licensee H 71 3.7.2 Intervenor's Contentions - Burden and Means of Proof H 72 SEPTEMBER 1988 TABLE OF CONTENTS 5
l 6 3.7.3 Specific Issues - Means of Proof H 74 3.7.3.1 Exclusion Area Controls H 74 3.7.3.2 Need for Facility H 75 3.7.3.3 Burden and Means of Proof in Interim Licensing Suspension Cases H 76 3.7.3.4 Availability of Uranium Supply H 77 3.7.3.5 Environmental Costs (Reserved) H 77 3.7.3.5.1 Cost of Withdrawing Farmland from Production H 77 (SEE ALSO 6.15.6.1.1) 3.7.3.6 Alternate Sites Under NEPA H 78 3.7.3.7 Management Capability H 78 3.8 Burden of Persuasion (Dearee of Proof) H 79 3.8.1 Environmental Effects Under NEPA H 80 i 1 3.9 Stipulations H 80 3.10 Official Notice of Facts H 80 1 3.11 Evidence H 82 l 3.11.1 Rules of Evidence H 83 3.11.1.1 Admissibility of Evidence H 83 3.11.1.1.1 Admissibility of Hearsay Evidence H 84 , 3.11.1.2 Hypothetical Questions H 85 i 3.11.1.3 Reliance On Scientific Treatises, Newspapers, Periodicals H 85 l 3.11.1.4 Off-the-Record Comments H 86 1 3.11.1.5 Presumptions and Inferences H 86 3.11.1.6 Government Documents H 86 3.11.2 Status of ACRS Letters H 86 3.11.3 Presentation of Evidence by Interveners H 87 3.11.4 Evidentiary Objections H 87 i 3.12 Witnesses at Hearina H 88 3.12.1 Compelling Appearance of Witness H 88 3.12.1.1 NRC Staff as Witnesses H 89 l 3.12.1.2 ACRS Members as Witnesses H 89 3.12.2 Sequestration of Witnesses H 89 3.12.3 Board Witnesses H 90 3.12.4 Expert Witnesses H 91 3.12.4.1 Fees for Expert Witnesses H 92 3.13 Cross-Examination H 93 3.13.1 Cross-Examination by Interveners H 94 3.13.2 Cross-Examination by Experts H 97 3.13.3 Inability to Cross-Examine as Grounds to Reopen H 97 3.14 Record of Hearina H 97 3.14,1 Supplementing Hearing Record by Affidavits H 97 3.14.2 Reopening Hearing Record H 98 3.14.3 Material Not Contained in Hearing Record H 100 SEPTEMBER 1988 TABLE OF CONTENTS 6
7 3.15 Interlocutory Review via Directed Certification H 101 3.16 Licensina~ Board Findinas' H-103 3.16.1 Independent Calculations by Licensing Board H 106 3.17 Res Judicata and Collateral Estoopel~ H.106 3.18 . Termination of Proceedings H 112 3.18.1 Procedures for Termination H'112-3.18.2- ' Post-Termination Authority of Commission H 112 4.0 POST HEARING MATTERS PH 1 4.1 . Settlements and Stipulations PH 1 4.2- Proposed Findinas PH 1 4.2.1 Intervenor's Right to File Proposed Findings- PH 2 4.2.2 Failure to File Proposed Findings PH 2 4.3 Initial Decisions PH 3 4.3.1 Reconsideration of Initial Decision PH 6 4.4 Reopenina Hearinas PH 7 4.4.1 Motions to Reopen Hearing PH 9 4.4.1.1 Time for Filing Motion to Reopen Hearing PH 11 4.4.1.2 Contents of Motion to Reopen Hearing (Reserved) PH 13 4.4.2 Grounds for Reopening Hearing (SEE ALSO 3.13.3) PH 13 4.4.3 Renpening Construction Permit Hearings to Address New Generic Issues PH 20 4.4.4 Discovery to Obtain Information to Support Reopening of Hearing PH 20 4.5 Motions to Reconsider PH 20 4.6 Sua Soonte Review by the Appeal Board PH 21 4.7 Motions for Post-Judament Relief PH 25 5.0 APPEALS App 1 5.1 Riaht to Appeal App 1 5.2 Who Can Appeal App 2 5.3 How to ADDeal App 4 5.4 Time for Filina Aooeals App 4 SEPTEMBER 1988 TABLE OF CONTENTS 7
8 5.5 Matters Considered on Anoeal App 7 5.5.1 Issues Raised for the First Time on Appeal App 8 5.5.2 Effect on Appeal of Failure to File Proposed Findings App 10 5.5.3 Matters Considered on Appeal of Ruling Allowing Late Intervention App 11 5.5.4 Consolidation of Appeals on Generic Issues App 11 5.6 ADoeal Board Action App 11 5.6.1 Role of Appeal Board App 11 5.6.2 Parties' Opportunity to be Heard on Appeal App 16 5.6.3 Standards for Reversing Licensing Board on Findings of Fact App 17 5.6.4 Grounds for Immediate Suspension of Construction Permit by Appeal Board App 20 5.6.5 Immediate Effectiveness of Appeal Board Decision App 20 5.6.6 Effect of Appeal Board Affirmance as Precedent App 21 5.6.6.1 Precedential Effect of Unpublished Opinions of Appeal Boards App 21 ; I 5.6.7 Disqualification of Appeal Board Member App 21 l l 5.7 Stavs Pendina Appeal App 22 l 5.7.1 Requirements for a Stay Pending Appeal App 24 l 5.7.2 Stays Pending Remand After Judicial Review App 31 l l 5.8 Specific Anocalable Matters App 32 5.8.1 Rulings on Intervention App 32 l 5.8.2 Scheduling Orders App 34 5.8.3 Discovery Rulings App 35 5.8.3.1 Rulings on Discovery Against Nonparties App 35 5.8.3.2 Rulings Curtailing Discovery App 35 5.8.4 Refusal to Compel Joinder of Parties App 36 5.8.4.1 Order Consolidating Parties App 36 5.8.5 Order Denying Summary Disposition App 36 (SEE ALSO 3.5) 5.8.6 Procedural Irregularities App 36 5.8.7 Matters of Recurring Importance App 37 5.8.8 Advisory Decisions on Trial Rulings App 37 5.8.9 Order on Fro-LWA Activities App 37 5.8.10 Partial Initial Decisions App 37 5.8.11 Other Licensing Actions A'pp 38 5.8.12 Rulings on Civil Penalties App 38 5.8.13 Evidentiary Rulings App 38 5.8.14 Director's Decision on Show Cause Petition App 39 5.8.15 Findings of Fact App 39 5.9 Perfectina Appeals App 39 5.9.1 General Requirements for Appeals from Initial Decision App 39 SEPTEMBER 1988 TABLE OF CONTENTS 8
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9 5.10 Briefs on Anneal: App 40-5.10.1 Necessity of Brief- App 40 5.10.2 Time for Submittal-of Brief App 40 5.10i2.1 Time Extensions for Brief App 41
-5.10.2.2 Supplementary Briefs _ App 42 5.10.3 Contents of Brief App 42 5.10.3.1 Opposing Briefs' App 47' 5.10.4 Amicus Curiae Briefs App 47.
5.11 Oral Araument App 47-5.11.1 Failure to Appear for Oral Argument App 48 5.11.2 Grounds for Postponement of Oral Argument App 48 5.11.3 Oral Argument by.Nonparties App.48 5.12 Actions Similar to Appeals App 49 5.12.1 Motions to Reconsider App 49 5.12.2 Interlocutory Reviews App 50 5.12.2.1 Directed Certification of Questions for Interlocutory Review App 53 5.12.2.1.1 Effect of Subsequent Developments on Motion to Certify App 60 5.12.2.1.2 Effect of Directed Certification on Uncertified . Issues App'60 p) ( U 5.12.3 Application to Commission for a Stay After Appeal Board's Denial of Stay App 60~ 5.13 Appeals from Orders. Rulinos. Initial Decisions. Partial Initial Decisions App 61 5.13.1 Time for Filing Appeals App 61 5.13.1.1 Appeals from Initial and Partial Initial Decisions App 61 5.13.1.2 Variation in Time Limits on Appeals _ App 61 j 5.13.2 Briefs on Appeal App 62 5.13.3 Effect of Failure to File Proposed findings App 62 5.13.4 Motions to Strike Appeals App 62 5.14 Certification to the Commission App 63 5.15 Review of Appeal Board Decisions App 64 5.15.1 Effect of Commission's Refusal to Entertain Appeal App 65 5.15.2 Stays Pending Judicial Review of Appeal Board Decision App 66 5.15.3 Stays Pending Remand After Judicial Review App 67 5.16 Review of Commission Decisions App 67 l Review of Disqualification of a Commissioner 5.16.1 App 67 5.17 Reconsideration by the' Commission App 67 e 5.18 Jurisdiction of NRC to Consider Matters While Judicial Review is Pendino App 67 ,. SEPTEMBER 1988 TABLE OF CONTENTS 9 _ _ _ _ _ _ _ _ _ _ . -_ I
N 10 5.19 Procedure On Remand App 68 l 5.19.1 Jurisdiction of the Licensing Board on Remand App 68 ; 5.19.2 Jurisdiction of the Appeal . Board on Remand App 69 j 5.19.3 Stays Pending Remand App 70 j 5,19.4 Pr.rticipation of Parties in Remand Proceedings App 71 i l 1 6.0 GENERAL MATTERS GM 1 6.1 Amendments to Existina Licenses and/or Construction Permits GM 1 6.1.1 Staff Review of Proposed Amendments (Reserved) GM 1 l 6.1.2 Amendments to Research Reactor Licenses (Reserved) GM 1 j 6.1.3 Matters to be Considered in License Amendment ! Proceedings (Reserved) GM 1 j 6.1.3.1 Specific Matters Considered in License Amendment Proceedings GM 2 i, 6.1.4 Hearing Requirements for License / Permit Amendments GM 2 6.1.4.1 Notice of Hearing on License / Permit Amendments (Reserved) GM 4 , 6.1.4.2 Intervention on License / Permit Amendments GM 4 j ' 6.1.4.3 Summary Disposition Procedures on License / Permit Amendments GM 4 6.1.4.4 Matters Considered in Hearings on License Amendments GM 5 6.1.5 Primary Jurisdiction in Appeal Board to Consider License Amendment in Special Hearing GM 6 6.1.6 Facility Changes Without License Amendments GM 6 ; 6.2 Amendments to License / Permit Anolications GM 7 6.3 Antitrust Considerations GM 7 , 6.3.1 Consideration of Antitrust Matters After the Construction Permit Stage GM 10 6.3.2 Intervention in Antitrust Proceedings GM 12 6.3.3 Discovery in Antitrust Proceedings GM 14 6.3.3.1 Discovery Cutoff Dates for Antitrust Proceedings GM 14 6.4 Attorney Conduct GM 15 6.4.1 Practice Before Licensing / Appeal Boards GM 15 6.4.1.1 Professional Decorum Before Licensing / Appeal Boards GM 16 6.4.2 Disciplinary Matters re Attorneys GM 17 6.4.2.1 Jurisdiction of Special Board re Attorney Discipline GM 18 6.4.2.2 Procedures in Special Disqualification Hearings re Attorney Conduct GM 18 6.4.2.3 Conflict of Interest GM 19 6.5 Communications Between Staff / Applicant /Other Partieg Adjudicatory Bodies GM 19 6.5.1 Ex Parte Communications Rule GM 19 6.5.2 Telephone Conference Calls GM 21 6.5.3 Staff-Applicant Communications GM 22 SEPTEMBER 1988 TABLE OF CONTENTS 10
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C/ 11 6.5.3.1 Staff Review of Application GM 22 6.5.3.2 Staff-Applicant Correspondence GM 22 6.5.4 Notice of Relevant Significant Developments GM 23 6.5.4.1 Duty to Inform Adjudicatory Board of Significant Developments GM 23 6.6 Early Site Review Procedures GM 26 6.6.1 Scope of Early Site Review GM 27 6.7 Endanaered Species Act GM 27 6.7.1 Required Findings re Endangered Species Act GM 27 6.7.2 Degree of Proof Needed re Endangered Species Act GM 28 6.8 Financial Qualifications GM 28 6.9 Generic Issues GM 29 l 6.9.1 Consideration of Generic Issues in Licensing Proceedings GM 29 6.9.2 Effect of Unresolved Generic Issues GM 31 6.9.2.1 Effect of Unresolved Generic Issues in Construction Permit Proceedings GM 31 6.9.2.2 Effect of Unresolved Generic Issues in Operating
,e} License Proceedings GM 32 t
O 6.10 Inspection and Enforcement GM 33 6.10.1 Enforcement Actions GM 34 6.10.1.1 Civil Penalties GM 35 6.10.1.2 Show Cause Proceedings (SEE 6.24) GM 37 6.11 Masters in NRC Proceedings GM 37 6.12 Material False Statements in Applications CM 38 (SEE 1.5.2) 6.13 Materials Licenses GM 38 6.14 Motions in NRC Proceedings GM 40 6.14.1 Form of Motion GM 41 6.14.2 Responses to Motions GM 41 6.14.2.1 Time for Filing Responses to Motions GM 41 6.14.3 Licensing Board Actions on Motions GM 41 6.15 NEPA Considerations GM 42 6.15.1 Environmental Impact Statements (EIS) GM 45 6.15.1.1 Need to Prepare an EIS GM 46 6.15.1.2 Scope of EIS GM 49 ' 6.15.2 Role of EIS GM 50 6.15.3 Circumstances Requiring Redrafting of Final Environmental Statement (FES) GM 51 (O') 6.15.3.1 Effect of Failure to Comment on Draft Environmental GM 53 Statement (DES) SEPTEMBER 1988 TABLE OF CONTENTS 11
! O l 12 6.15.3.2 Stays Pending Remand for Inadequate EIS GM 54 1 6.15.4 Alternatives GM 54 j 6.15.4.1 Obviously Superior Standard for Site Selection GM 57 !' 6.15.4.2 Standards for Conducting Cost-Benefit Analysis Related to Alternatives GM 58 6.15.5 Need for Facility GM 60 6.15.6 Cost-Benefit Analysis Under NEPA GM 60 6.15.6.1 Consideration of Specific Costs Under NEPA GM 63 , 6.15.6.1.1 Cost of Withdrawing Farmland from Production GM 63 (SEE 3.7.3.5.1) 6.15.6.1.2 Socioeconomic Costs as Affected by Ircreased Employment and Taxes from Proposed Facility GM 63 6.15.7 Consideration of Class 9 Accidents in an Environmental Impact Statement GM 63 , 6.15.8 Power of NRC Under NEPA GM 65 6.15.8.1 Powers in General (Under NEPA) GM 66 6.15.8.2 Transmission Line Routing GM 68 6.15.8.3 Pre-LWA Activities /0ffsite Activities GM 69 6.15.8.4 Relationship to EPA with Regard to Cooling Systems GM 69 6.15.8.5 NRC Power Under NEPA with Regard to FWPCA GM 70 6.15.9 Spent Fuel Pool Proceedings GM 70 6.16 NRC Staff GM 72 6.16.1 Staff Role in Licensing Proceedings GM 72 6.16.1.1 Staff Demands on Applicant or Licensee GM 76 6.16.1.2 Staff Witnesses GM 77 6.16.1.3 Post Hearing Resolution of Outstanding Matters by the Staff GM 77 6.16.2 Status of Staff Regulatory Guides GM 80 6.16.3 Status of Staff Position and Working Papers GM 82 6.16.4 Status of Standard Review Plan GM 82 6.16.5 Conduct of NRC Employees (Reserved) GM 83 6.17 Orders of Licensino and Appeal Boards GM 83 6.17.1 Compliance with Board Orders GM 83 6.18 Precedent and Adherence to Past Aaency Practice GM 84 6.19 Pre-Permit Activities GM 84 6.19.1 Pre-LWA Activity GM 86 6.19.2 Limited Work Authorization GM 88 6.19.2. 1 LWA Status Pending Remand Proceedings GM 89 6.20 Regulations GM 89 6.20.1 Compliance with Regulations GM 89 6.20.2 Commission Policy Statements GM 90 6.20.3 Regulatory Guides GM 90 6.20.4 Challenges to Regulations GM 91 6.20.5 Agency's Interpretation of its Own Regulations GM 95 SEPTEMBER 1988 TABLE OF CONTENTS 12
i ( I l LJ 13 6.21 Rulemakina GM 95 6.21.1 Rulemaking Distinguished from General Policy Statements GM 96 6.21.2 Generic Issues and Rulemaking GM 96 6.22 Research Reactors GM 96 6.23 Disclosure of Information to the Public GM 97 6.23.1 Freedom of Information Act Disclosure GM 98 6.23.2 Privacy Act Disclosure (Reserved) GM 99 6.23.3 Disclosure of Proprietary Information GM 99 6.23.3.1 Protecting Information Where Disclosure is Sought in an Adjudicatory Proceeding GM 100 6.23.3.2 Security Plan Information Under 10 CFR s 2.790(d) GM 102 6.24 Show Cause Proceedings GM 103 6.24.1 Petition for Show Cause Order GM 105 6.24.1.1 Grounds for Show Cause Order GM 105 6.24.1.2 Burden of Proof for Show Cause Order GM 105 6.24.1.3 Issues in Show Cause Proceedings GM 106 , l 6.24.2 Standards for Issuing Show Cause Order GM 106 f'~'s 6.24.3 Review of Decision on Request for Show Cause Order GM 106 ( ) 6.24.4 Notice / Hearing on Show Cause to Licensee / Permittee GM 108 N- ' 6.24.5 Burden of Proof in Show Cause Proceedings GM 109 6.24.6 Consolidation of Petitioners in Show Cause Proceedings GM 109 6.24.7 Necessity of Hearing in Show Cause Proceedings GM 109 6.24.8 Intervention in Show Cause Proceedings GM 110 6.25 Summary Disposition Procedures (SEE 3.5) GM 110 6.26 Suspension. Revocation or Modification of License GM 110 6.27 Technical Specifications GM 111 6.28 Termination of Facility Licenses GM 112 6.29 Procedures in Other TYDes of Hearinas GM 112 6.29.1 Military or Foreign Affairs Functions GM 112 6.29.2 Export Licensing GM 112 (SEE ALSO 3.4.6) 6.29.2.1 Jurisdiction of Commission re Export Licensing GM 112 6.29.2.2 Export License Criteria GM 113 [ v SEPTEMBER 1988 TABLE OF CONTENTS 13
d' -. M ; kj# 1 TABLE OF CONTENTS.
-APPLICATIONS 1.0 APPLICATION FOR LICENSE / PERMIT An' 1 1.1 Applicants An 1 1.2 Renewal ADolications An 1
-1.3 Applications for Early Site Review An 1 1.4 Form of Acolication for Construction Permit /Operatina License .
An 2 1.4.1 Form of Application for Initial License / Permit An 2 1.4.2 Form of Renewal Application for License / Permit An 2 1.5 Cbntents of ADDiication An 2 1.5.1 Incomplete Applications An 2 1.5.2 Material False Statements in Applications An 2 t V 1.6 Docketina of License / Permit Application An 5 l.7 Notice of License / Permit Application An 5 1.7.1 Publication of Notice in Federal Reaister - An 5 1.7.2 Amended Notice After Addition of New Owners An 6 1.7.3 Notice on License Renewal An 6 1.8 Staff Review of License / Permit Application An 6 1.9 Withdrawal of Application for License / Permit An 9 1.10 Abandonment of Application for License / Permit An 14
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MARCH 1987 APPLICATIONS - TABLE OF CONTENTS i ! 1
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L' h 6 1.3 g
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PROCEDURaAL CONSIDERATIQNJ 1.0 APPLICATION FOR LICENSE / PERMIT 1.1 Anolicants All co-owners of a nuclear power plant must be co-applicants for NRC - i licenses for the facility. To hold otherwise could place a cloud'on significant areas of the NRC's r'egulatory authority and is not consistent with the safety. considerations with which Congress was primarily concerned in the Atomic Energy Act. Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 200-201 (1978). The Appeal Board's decision in Mart'e Hill thus overrules the Licensing Board's holding to the contrary in Omaha Public Power District (Fort Calhoun Station, Unit
,2), LBP-77-5, 5 NRC 437 (1977).
1.2 Renewal' Applications Applications for a renewal of a license may be filed with the NRC. 10 CFR s 2.109 provides that where an application for renewal is filed at least 30 days prior to the expiration of an existing license authorizing activities of a continuing nature, the existing license [( will not be deemed to expire until the renewal application has been finally determined. 1.3 ADDlications for Early Site Review The Commission's regulations in 10 CFR Part 2 have been amended to provide for an adjudicatory early site review. See 10 CFR ss 2.101(a-1), 2.600 to 2.606. These early site review procedures, which differ in both form and effect from those of Appendix Q to 10 CFR Part 50, are designed to re. nit in the issuance of a partial initial decision with regard to site suitability matters chosen by the applicant. An applicant who seeks early site review is not required to own the proposed power plant site. The real test for deciding on early site review is whether or not the applicant can produce the information required by regulation and necessary for an effective hearing. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125, 1136 (1981). The Commission's early site review regulations do not require that the applicant have a " firm plan" to construct a plant at the site, but rather are meant to provide an opportunity to resolve siting , issues in advance of any substantial commitment of resources. 10 CFR 2.101(a-1), ss 2.600 et sea. Philadelphia Electric Co. (Fulton O Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967, 975-976 (1981). DECEMBER 1985 APPLICATIONS 1
p l l s 1.4 Three years after the Licensing Board sanctioned a limited work authorization (LWA) and before applicant had proceeded with any O\ construction activity, applicant indicated it wanted to amend its construction permit application to focus only on site suitability , issues. The Appeal Board adopted applicant's suggestion to " vacate I without Dre.iudice" the decisions of the Licensing Board sanctioning the LWA. The Appeal Board remanded the cause for proceedings deemed appropriate by the Licensing Board upon formal receipt of an early site approval application. Delmarva Power & Liaht Comoany (Summit Power Station, Units 1 and 2), ALAB-516, 9 NRC 5, 6 (1979). 1.4 Form of Application for Construction Permit /0oeratina License l 1.4.1 Form of Application for Initial License / Permit Regulations permit the filing of an application in three parts: Antitrust Information; SAR; and ER (10 CFR s 2.101). The application is initially treated as a " tendered applica-tion" pending a preliminary Staff review for completeness. 10 CFR 9 2.101(a)(2). 1.4.2 Form of Renewal Application for License / Permit (RESERVED) ; 1.5 Contents of Application l 1.5.1 Incomplete Applications The determination as to whether an application is suffi- l ciently complete for docketing is for the Staff, rather than an adjudicatory board, to make. New Enaland Power Co. (NEP, Units 1 & 2), LBP-78-9, 7 NRC 271, 280 (1978). 1.5.2 Material False Statements in Applications Under Section 186 of the Atomic Energy Act of 1954 (42 U.S.C. 4 s 2236), a license or permit may be revoked for material false statements in the application. j Liability of an applicant or licensee for a material false statement in violation of Section 186a of the Atomic Energy Act does not depend on whether the applicant or licensee knew i of the falsity. Consumers Power Co. (Midland Plant, Units 1 l and 2), ALAB-691, 16 NRC 897, 910 (1982), citina, Virainia Electric and Power Co. (North Anna Power Station, Units 1 and i 2), CLI-76-22, 4 NRC 480 (1976), aff'd sub nom. Virainia Electric and Power Co. v. Nuclear Reaulatory CommissioJ1, 571 1 F.2d 1289 (4th Cir. 1978). i O l DECEMBER 1985 APPLICATIONS 2 l l
n 7
! )
sj 9 1.5.2 Intent to deceive is irrelevant in determining whether there has been a material false statement u. :ar Section 186a of the Atomic Enerav Act; a deliberate effort to mislead the NRC, l however, is relevant to the matter of sanctions, once a material false statement has been found. Midland, suora, 16 NRC at 915; The Recents of the University of California (UCLA Research Reactor), LBP-84-22, 19 NRC 1383, 1387 (1984). In Virainia Electric & Power Co. (North Anna Power Station, Units 1.& 2), ALAB-324, 3 NRC 347 (1976), the Appeal Board held that: (1) A statement may be " false" within the meaning of Section 186 even if it is made without knowledge of its falsity - h, scienter is not a necessary element of a false statement under Section 186. l' (2) Information is material under Section 186 if it would have a natural tendency or capability to influence the decision of the person or body to whom it is to be submitted - J A , the information is material if a reasonable Staff member would consider it in reaching a n conclusion. The information need not be relied upon in ( ) fact. v Under Section 186a of the Atomic Energy Act, the test for materiality is whether the information is capable of influenc-ing the decisionmaker, not whether the decisionmaker would, in fact, have relied on it. Determinations of materiality require careful, common sense judgments of the context in which information appears and the stage of the licensing process involved. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 910 (1982), citina, Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480 (1976), aff'd sub nom. Virainia Electric and Power Co. v. Nuclear Reaulatory Commission, 571 F.2d 1289 (4th Cir.1978); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774,19 NRC 1350, 1358 (1984); The Reaents of the University of California (UCLA Research Reactor), LBP-84-22, 19 NRC 1383, 1408-09 (1984). The mere existence of a question or discussion about the possible materiality of information does not necessarily make the information material. Midland, supra, 16 NRC at 914. In Virainia Electric & Power Co. (North Anna Power Sta-tion, Units 1 & 2), CLI-76-22, 4 NRC 480 (1976), the Com-niission affirmed the Appeal Board's rulings suora and, in Q addii. ion, held that silence (omissions) as to material Q facts regarding issues of major importance to licensing DECEMBER 1985 APPLICATIONS 3
i 6 1.5.2 decisions is included in the Section 186 phrase." material i false statement" since such an interpretation will effec- 1 tuate the health and safety purposes of the Act. Thus, the sanctions of Section 186 apply not only to affirmative statements but to omissions of material facts important to
' health and safety.
A " material false statement" under Section 186a of the Atomic ; Energy Act encompasses omissions as well as affirmative , statements. . Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 911 (1982), citina, Virainia lj Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480, 489 (1976), aff'd sub nom. Virainia { Electric and Power Co. v. Nuclear Reaulatory Commission, 571 F.2d 1289 (4th Cir.1978); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774,19 NRC 1350, l 1357 (1984). The Commission has indicated, however, that it is reconsidering its views on what constitutes a material l false statement in this regard. See 49 Fed. Rea. 8583, 8584 1 (1984). Information concerning a licensee's or applicant's intent to deceive may call into question its " character," a matter the Commission is authorized to consider under Section 182 of the Atomic Energy Act, 42 U.S.C. 2232a, or its ability and willingness to comply with Agency regulations, as Sectiot j 103b, 42 U.S.C. 6 2133b, requires. Midland, suora, 16 NRC at ) 915 n.25. l False statements, if proved, could signify lack of management , character sufficient to preclude an award of an operating ) license. at least as long as responsible individuals retained kny responsibilities for the project. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20,19 NRC 1285,1297 (1984), citing, Houston Liahtina and Power Co. (South Texas Project, Units 1 and E), LBP-84-13, 19 NRC 659, 674-75 (1984), i and Consumers Power Co. (Midland Plant, Units 1 and 2), CLI- ! 83-2, 17 NRC 69, 70 (1983). l A deliberate false statement or withholding of material information would warrant the imposition of a severe sanction. Not only are material false statements and omissions punish- i able under Sections 234 and 186 of the Atomic Energy Act, but { deliberate planning for such statements or concerns on the ; part of applicants or licensees would be evidence of bad i character that could warrant adverse licensing action even where those plans are not carried to fruition. When parties and their attorneys engage in conduct which skirts close to the line of improper conduct, they are running a grave risk of serious sanction if they cross that line. Consumers Power . Co. (Midland Plant, Units 1 and 2), CLI-83-2,17 NRC 69, 70 ! (1983). i DECEMBER 1985 APPLICATIONS 4 I
._ _ _ - _ _ _ _ - _ _ _ _ _ _ __ __ _ ___a
6 1.7.1 1.6 Docketino of License / Permit ADDlication
.If the application is found to be complete, a docket number will be assigned and.the applicant and other appropriate officials notified.
10 CFR 9 2.101(a)(3). 1.7 Notice of License / Permit ADDlication 1.7.1 Publication of Natice in Federal Reaister The Federal Register Act (44 U.S.C. s 1508) provides that a publication of a notice in the Federal Reaister constitutes notice to all persons residing in the United States. Consolidated Edison Co. (Indian Point Station, Unit No. 2), LBP-82-1, 15 NRC 37, 40 (1982). In Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 & 2), ALAB-445, 6 NRC 865 (1977), it was held that, while 10 CFR 9 2.104(a) requires that notice of hearing initiating.a construction permit proceeding be published in the Federal Reaister at least 30 days prior to commencement of hearing, it does not require that such notice establish the time, place and date for all phases of the evidentiary hearings. However, in an unpublihd opinion issued on December 12, 1977, the Federal District Court for the Northern
,O District of Mississippi held that the interpretation of the notice requirements by the Appeal Board in Yellow Creek was erroneous and that at least 30 days prior public notice of the time, place and date of hearing must be provided.
One may be charged with notice of matters published in the Federal Reaister. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7 (1980). (Note - The Appeal Board expressly declined to reach the question of whether the Federal Reaister notice bound the petitioners to its terms. M. at 10). There appears to be no requirement that the rights of interested local governmental. bodies to be made parties to a proceeding be spelled out in the notice of opportunity for hearing. Thus, a notice of opportunity for hearing is not defective simply because it fails to state the right of an interested governmental body to participate in a proceeding. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 585 (1978). The notice to parties wishing to intervene in hearings before the Commission published in the Federal Reaister is notice to all the world. Public Service Co. of New HamDshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1085 (1982). O DECEMBER 1985 APPLICATIONS 5
O l 9 1.7.2 j 1.7.2 Amended Notice After Addition of New Owners . J' (RESERVED) 1.7.3 Notice on License Renewal I (RESERVED) 1.8 Staff Review of License / Permit Application An ASLB has ruled that the Staff has a right to continue to meet privately with parties even though a hearing has been noticed, and that, while an ASLB has supervisory authority over Staff actions that are part of the hearing process, it has no such authority with regard to the Staff's review process. Northeast Nuclear Eneray Co. (Montague Nuclear Power Station, Units 1 & 2), LBP-75-19, 1 NRC 436 (1975). Note that 10 CFR 6 2.102 explicitly provides that the Staff may request any one party to a proceeding to confer informally with the Staff durirg the Staff's review of an application. In the absence of a demonstration that meetings were deliberately ) being scheduled with a view to limiting the ability of interveners' representatives to attend, the imposition of hard and fast rules would needlessly impair the Staff's ability to obtain information. 4 The Staff should regard the intervenor's opportunity to attend as ) one of the factors to be taken into account in making its decisions on the location of such meetings. Fairness demands that all parties be informed of the scheduling of such reetings at the same time. , Consolidated Edison Co. of N.Y. (Indian Point, Unit .2) and Power l Authority of the State of N.Y. (Indian Point, Unit 3), CLI-82-41, i 16 NRC 1721, 1722-23 (1982). j { Adjudicatory boards lack the power to direct the Staff in the performance of its independent responsibilities and, under the Commission's regulatory scheme, boards cannot direct the Staff to suspend review of an application, preparation of an environmental ) impact statement or work, studies or analyses being conducted or planned as part of the Staff's evaluation of an application. New Enaland Power Co. (NEP, Units 1 & 2), LBP-78-9, 7 NRC 271, 278 79 , (1978). l The Staff produces, among other documents, the Safety Evaluatica j Report (SER) and the Draft and Final Environmental Statements 1 (DES and FES). The studies ai,d analyses which result in these , reports are made independently by the Staff, and Licensing Boards I have no rule or authority in their preparation. The Board does I not have any supervisory authority over that part of the appli- !; cation review process that has been entrusted to the Staff. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), LBP-83-36, 18 NRC 45, 48-49 (1983), citina, New DECEMBER 1985 APPLICATIONS 6 1 I
- _ _ _ _ - - _ - _ . _ _ __ ._ b
,cw 9 1.8 Enaland Power Co. (NEP Units I and 2), LSP-78-9,.7 NRC 271 (1978).
Sg Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 206-07 (1978). It is up to the Staff to decide its priorities in the review of applications. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-581,11 NRC 233, 238 (1980), modified, CLI-80-12, 11 NRC 514, 517 (1980). However, where a Licensing Board finds that the Staff cannot demonstrate a reasonable cause for its delay in' submitting environmental statements, the Board may issue a ruling noting the unjustified failure to meet a publica-- tion schedule and then proceed to hear other matters or suspend proceedings until the Staff files the necessary documents. The Board, sua soonte or on motion of one.of the parties, may refer the ruling to the Appeal Board. If the Appeal Board , affirms, it would certify the matter to the Commission. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 207 (1978).
~
One aspect of the NRC role in regulating nuclear power plants is to provide criteria forming the engineering baseline against which licensee system designs, including component specifications, are judged for adequacy. It has not been the Staff's practice to certify that any particular components are qualified for nuclear service, but, rather,:it independently reviews designs and anaiyses, qualifi-O cation documentation and quality assurance programs of licensees to determine adequacy. This review approach is consistant with the NRC's responsibilities under the Atomic Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et sea.). Petition for Emeraency and Remedial Action, CLI-78-6, 7 NRC 400, 426 (1978). Pursuant to 10 CFR s 50.47(a)(1), the NRC must find, prior to the issuance of a license for the full-power operation of a nuclear power reactor, that the state of onsite and offsite emergency preparedness provides reasonable assurance that ade-quate protective measures can and will be taken in the event of a radiological emergency. Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-68, 16 NRC 741, 745 (1982); Consolidated Edison Co. of New York (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), CLI-83-16, 17 NRC 1006, 1008 (1983); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 NRC 1057, 1063-64 (1983); Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1094 n.22 (1983); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 172 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 651 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units [ l and 2), ALAB-836, 23 NRC 479, 506 (1986); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 29 (1986); C_1_eveland Electric 111uminatina Co. (Perry Nuclear MARCH 1987 APPLICATIONS 7
9 1.8 Power Plant, Units 1 and 2), CL1-86-22, 24 NRC 685, 693-94 (1986), l aff'd sub nom on other arounds, Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987); Philadelphia Electric (L. (Limerick Generating Station, Units 1 and 2), ALAB-857, 25 NRC 7, 12 (1987). In accordance with Section 50.47(a)(2), the Commission is to base its finding on a review of FEMA's " findings and determinations as to whether State and local emergency plans are adequate and capable of being implemented", and l on a review of the NRC Staff assessment of applicant's onsite l emergency plans. Zimmer, suora, 16 NRC at 745-46; Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1094 n.22 (1983); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730,17 NRC 1057,1063-64 (1983); Union Electric Co. (Callaway Plant, Unit 1), ALAB-754,18 NRC 1333, 1334-1335 (1983), affirmina, LBP-83-71,18 NRC 1105 (1983); Lqng Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 652 (1985); Cleveland Electric 111uminatino Co. ; (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-22, 24 NRC E85, 693 (1986), aff'd sub nom on other arounds, Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987). In any NRC licensing proceeding, a FEMA finding will constitute a rebuttable presumption on a question of the adequacy of an emergency plan. Zimmer. supra, 16 NRC at 746; 1 Southern California Edison Co. (San Onofre Nuclear Generating ) Station, Units 2 and 3), ALAB-717, 17 NRC 346, 378 (1983), citina, J 10 CFR @ 50.47(a)(2); Lono Island Liahtina Co. (Shoreham Nuclear j Power Station, Unit 1), LBP-85-12, 21 NRC 644, 655 (1985); Carolina l Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), LBP-85-49, 22 NRC 899, 910 (1985); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Pcwer Acc; Ley (Shearon Harris Nuclear Power Plant), LBP-86-11, 23 NRC 294, 365 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 499 (1986); Philadelphia Electric Co. (Limerick Generatino Station, Units 1 and 2), ALAB-845, 24 NRC 220, 233 (1986). See 1.ona Island liahtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 139 n.38 (1987). A Staff review of an application is an aid to the Commission in determining if a hearing is needed in the public interest. Without the Staff's expert judgment the Commission probably cannot reach an informed judgment on the need for a hearing in the public interest. Carolina Power & licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-581, 11 NRC 233, 235 (1980), modified, CLI-80-12, 11 NRC 514 (1980). In an operating license proceeding (with the exception of certain NEPA issues), the applicant's license application is in issue, not the adequacy of the Staff's review of the application. An intervenor is thus free to challenge directly an unresolved generic safety issue by filing a proper contention, but it may not proceed on the basis of allegations that the Staff has somehow failed in its performance. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). JUNE 1987 APPLICATIONS 8 4
1 5 1.9 x l. 1.9. Mithdrawal of Aanlication for License / Permit An applicant may withdraw its application without prejudice unless there is legal harm to the interveners or the public. Duke PowerA (Perkins Nuclear Station, Units 1, 2 and 3), LBP-82-81, 15 NRC 1128, 1134 (1982), citina, tecompte v. Mr. Chio. Inc., 528 F.2d 601, 604 (5th Cir. 1976). The filing of an application to construct a nuclear power plant is wholly voluntary. The decision to withdraw an application it business judgment. The law on withdrawal does not require r. determination of whether the decision is sound. Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45, 51 (1983). The right to a voluntary dismissal without prejudice is not absolute. Perkins, supn,16 NRC at 1135, citina, LeComate, supra, 528 F.2d at 604. Where the defendant has prevailed or is about to prevail an un-conditional withdrawal cannot be approved. Perkins, suora, 16 NRC at 1135, citina, 9 Wriaht and Miller Federal Practice and Procedure, [ivil, Section 2364 (1971). m 10 CFR f 2.107(a) provides, in part, that: (t)he Commission...may, on receiving a request for withdrawal of an application, deny the application or dismiss it with prejudice. Withdrawal of an application after the issuance of a notice of hearing shall be on such terms as De presiding officer may prescribe. See fla_irvland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-88-15, 27 NRC 576, 581 (1988). The terms prescribed at the time of withdrawal must bear a rational relationship to the conduct end lagal harm at which they are aimed. The record must support any findings concerning the conduct and harm in question. Perkins, suora, 16 NRC at 1134, citina, LeComote v. Mr. Chio. Inc., 528 f.2d 601, 604 (5th Cir .976); 5 Moore's Federal Practice 41.05(1) at 41-58. The Board may attach reasonable conditions a v withdrawal without prejudice to protect interveners and the public from legal harm. Perkins, Lypn , 16 NRC at 1134, citina, LeComote v. Mr. Chio. Inc., suora, 528 F.2d at 604. A Licensing Board has no jurisdiction to impose conditions on the withdrawal of an application for an operating license i where the applicant has filed a motion to terminate the operating license proceeding prior to the Board's issuance of a notice of a SEPTEMBER 1988 APPLICATIONS 9
l l l s 1.9 hearing on the application. Public Service Co. of Indiana, and Wabash Valley Power Association (Marble Hill Nuclear Generhting Ol Station, Units 1 and 2), LBP-86-37, 24 NRC 719, 724 (1986), citina, 10 CFR s 2.107(a). A notice of hearing is only issued after a Board considers any requests for hearing and intervention petitions which may have been submitted, and makes a determination that a hearing is warranted. Thus, the notice of receipt of an appl: cation for an operating license, notice of proposed action, and notice of opportunely for hearing are not functionally the notice of hearing referred to in 10 CFR s 2.107(a). Marblejilll, suora, 24 NRC at 723-24. Interveners have standing to seek a dismissal with prejudice or to seek conditions on a dismissal without prejudice to the exact extent that they may be exposed to legal harm by a dismissal. ferkins, suora, 16 NRC at 1137. The possibility of another hearing, stanCing alone, does not justify either a dismissal with prejudice or conditions on a withdrawal without prejudice, That kind of harm, the possibility of future litigation with its expenses and uncertainties, is the consequence of any dismissal without prejudice. It does not provide a basis for departing from the usual rule that a dismissal should be without prejudice. Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3), LBP-82-81, 16 NRC 1128, 1135 (1982), citina, Jones v. SEC, 298 U.S. 1, 19 (1936); 5 Moore's Federal Practice 41.05(1) at 41-72 to 41-73 (2nd ed. 1981); Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45, 50 (1983). In the circumstances of a mandatory licensing proceeding, the fact that the motion for withdrawal comes after most of the hearings should not operate to bar a withdrawal without prejudice where the applicant has prevailed or where there has been a nonsuit as to particular issues. Perkins, suDra, 16 NRC at 1126. While Section 2.107 is phrased primarily in terms of requests for withdrawal of an application by an applicant, the Commission itself has entertained such requests made by other parties to a construction permit proceeding, Consurers Power Company (Quanicassee Plant, Units 1 & 2), CLI-74-29, 8 AEC 10 (1974), and has indicated that such a request is normally to be directed to, and ruled upon by, the Atomic Safety and Licensing Board presiding in the proceeding. Consumers Power Company (Quanicassee Plant, Units 1 & 2), CLI-74-37, 8 AEC 627, n.1 (1974). Thus, it appears that a Licensing Board has the authority, under 10 CFR s 2.107, to consider a motion to compel withdrawal of an application filed by a party other than the applicant. With regard to design changes affectir,g an application, where there is a fairly substantial change in design not reflected in the application, the remedy is not summary judgment against the appli-cant. nor is withdrawal and subsequent refiling of the application necessarily required. Rather, an amendment of the application is SEPTEMBER 1988 APPLICATIONS 10
l gm 9 1.9 i G ') appropriate. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877 (1974). Following a request to withdraw an application the Board may dismiss the case "without prejudice," signifying that no disposition on the merits was made; or "with prejudice," suggesting otherwise. (10 CFR 9 2.107(a), 10 CFR 9 2.721(d)). A dismissal with prejudice requires some showing of harm to either a party or the public interest in general and requires careful consideration of the circumstances, giving due regard to the legitimate interests of all parties. It is well settled that the prospect of a second lawsuit or another application does not provide the requisite quantum of legal harm to warrant dismissal with prejudice. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125, 1132, 1135 (1981); Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967, 973, 978-979 (1981); Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), LBP 81, 16 NRC 1128, 1134 (1982), citina, Fed.R. Civ P. 41(a)(1), (2); LeComote v. Mr. Chio Inn , 528 F.2d 601, 603 (5th Cir. 1976), i citina, 5 Moore's Federal Practice, 41.05 (2d ed. 1981). ! The Commission has the authority to condition the withdrawal of a license application on such terms as it thinks just (10 CFR 9 2.107(a)). However, dismissal with prejudice is a severe sanction which should be reserved for those unusual situations which involve (q substantial prejudice to the opposing party or to the public interest V) in general. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125,1132-1133 (1981); Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Pewer Station, Unit 1), LBP-84-33, 20 NRC 765, 767-768 (1984). General allegations of harm to property values, unsupported by affidavits or unrebutted pleadings, do not provide a basis for dismissal of an application with prejudice. Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), LBP-84-43, 20 NRC 1333, 1337 (1984), citina, Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125, 1133-34 (1981), Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967, 979 (1981). Allegations of psychological harm from the pendency of the appli-cation, even if supported by the facts, do not warrant the dismissal of an application with prejudice. Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), LBP-84-43, 20 NRC 1333, 1337-1338 (1984), citina, Metropolitan Edison Co. v. People Aaainst Nuclear Eneray, 103 S. Ct. 1556 (1983). A Licensing Board has substantial leeway in defining the cir-cumstances in which an application may be withdrawn (10 CFR 2.107(a)), but the Board may not abuse this discretion by O acting in an arbitrary fashion. The withdrawal terms set by the Q Board must bear a rational relationship to the conduct and legal harm at which they are aimed. Fulton, supra, 14 NRC at 974; SEPTEMBER 1988 APPLICATIONS 11
5 1.9 Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-83-2, 17 NRC 45, 49 (1983). A Board may authorize he revocation of a Limited Work Authorization and the withdrawal of an application without prejudice after determining the adequacy of the applicant's site redress plan and clarifying the responsibilities cf the applicant and Staff in the event that an alternate use for the site is found before redress is-completed. United States Dept. of Enerav. Pro.iect Manaaement Coro., Tennessee Valley Authority (Clinch River Breeder Reactor Plant), . LBP-85-1, 21 NRC 507 (1985). j Where a motion for leave to withdraw a license application without prejudice has been filed with both an Appeal Board and a Licensing . Board, it is for the Licensing Board, if portions of the proceeding l remain before it, to pass upon the motion in the first instance. As l to whether withdrawal should be granted without prejudice, the Board ' is to apply the guidance provided in Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967 (1981) and Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662,14 NRC 1125 (1981). Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-668, 15 NRC 450, 451 (1982). The applicant for a license bears the cost of Staff work performed for its benefit, whether or not it withdraws its application prior to fruition. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-662, 14 NRC 1125, 1137 (1981). However, an applicant which withdrew its application prior to the November 6, 1981 issuance of revised regulations may not be billed for the costs incurred by the Staff in reviewing the application. Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), LBP-84-43, 1 20 NRC 1333, 1338 (1984), citina, New Enaland Power Co. v. NRC, 683 F.2d 12 (1st Cir. 1982). Ordinarily parties are to bear their own litigation expense. Qg's Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), LBP-82-81, 16 NRC 1128, 1139 (1982), citina, Alveska Pipeline Serv. v. Wilderness Soc., 421 U.S. 240; 44 L.Ed.2d 141; 95 S. Ct. 1612 (1975). A claim for litigation costs under the " private attorney general" theory must have a statutory basis. Perkins, suora, 16 NRC at 1139, citina, Alveska Pipeline, suora, 421 U.S. at 269. Recovery of litigation costs by the prevailing party as an award for winning a presumably completed law suit, must be distin-guished from the practice of reimbursing litigation costs as a condition on a dismissal without prejudice. The latter is not an award for winning anything, but it is intended as compensation to defendants who have been put to the trouble and expense to ' prepare a defense only to have the plaintiff change his mind, MARCH 1987 APPLICATIONS 12
( n (v ) 9 1.9 ! withdraw the complaint, but remain free to bring the actirn again. Perkins, suora, 16 NRC at 1140. The absence of specific authority does not prevent the Commission's Boards from exercising reasonable authority necessary to carry out their responsibilities, and a money condition is not necessarily barred from consideration. Duke Power Co. (Ferkins Nuclear Station, Units 1, 2 and 3), LBP-82-81, 16 NRC 1128, 1140 (1982). Payment of attorney's fees is not necessarily prohibited, as a matter of law, as a condition of withdrawal without prejudice of a construction permit application. Perkins, supra, 16 NRC at 1141. Another Licensing Board has noted, however, that the Commission is a body of limited powers. Its enabling legislation has no provisions empowering it to require the payment of a party's costs and expenses, nor do the regulations promulgated by the Commission provide for such payments. It has no equitable power it can exercise, as ccarts have. Pacific Gas and Electric Co. (Stanislaus Nuclear Project Unit 1), LBP-83-2, 17 NRC 45, 54 (1983). If interveners prevail on a need-for-power issue, there is no entitlement to attorney's fees because as the prevailing party, they received what they paid for and are barred from recovery. On the other hand, if interveners lose on the need-for-power issue, they may p not recover their attorney's fees because they will suffer no legal i kj harm in any filing of a new application. Perkins, suora, 16 NRC at 1142. Where an applicant abandons its construction of a nuclear facility and requests that the construction permit proceeding be terminated prior to resolution of issues raised on appeal from the initial decision authorizing construction, fundamental fairness dictates that termination of the proceedings be accompanied by a vacation of the initial decision on the ground of mootness. Rochester Gas and Electric Corporation (Sterling Power Project, Nuclear Unit 1), ALAB-596, 11 NRC 867, 869 (1980); United States Deoartment of Eneroy (Clinch River Breeder Reactor Plant), ALAB-755,18 NRC 1337,1338-1339 (1983), vacatina, LBP-83-8, 17 NRC 158 (1983). The antitrust information required to be filed under 10 CFR S 50.33a is part of the permit application; therefore, any applicant who wishes to withdraw after filing antitrust information, must comply with the Commission's rule governing withdrawal of license applica-tions (10 CFR s 2.107(a)), even if a hearing on the application had not yet been scheduled. To instead file a Notice of Prematurity and Advice of Withdrawal is an impermissible unilateral withdrawal, and the filing will be treated as a formal request for withdrawal under , 10 CFR S 2.107(a). Pacific Gas and Electric Com (Stanislaus Nuclear Project, Unit 1), CLI-82-5, 15 NRC 404, 405 (1982). f f (_ MARCH 1987 APPLICATIONS 13
s 1.10 1.10 A_bandonment of Application for License / Permit When the applicant has abandoned any intention to build a facility, it is within the Licensing Board's power to dismiss the construction i peroit application. Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-605,12 NRC 153,154 (1980). 4 O O MARCH 1987 APPLICATIONS 14
TABLE OF CONTENTS PREHEARING MATTERS 2.0 PREHEARING MATTERS Pre 1 (SEE 3.3) 2.1 Schedulina of Hearinas Pre 1 (SEE 3.3.1 to 3.3.5.2) 2.2 Necessity of Hearina Pre 1 2.3 Location of Hearina Pre 3 2.3.1 Public Interest Requirements Affecting Hearing Location Pre 3' (Reserved) 2.3.2 Convenience of Litigants Affecting Hearing Location . Pre 3 (SEE3.3.5.2) 2.4 Issues for Hearina Pre 3 (SEE 3.4 to 3.4.6) 2.5 Notice of Hearina Pre 3 2.5.1- Contents of Notice of Hearing Pre 4 ( 2.5.2 Adequacy of Notice of Hearing Pre 4 w 2.5.3 Publication of Notice of Hearing in Federal Reaister Pre 4
,2.5.4 Requirement to Renotice Pre 5 2.6 Prehearina Conferences Pre 6 2.6.1 Transcripts of Prehearing Conferences Pre 6 2.6.2 Special Prehearing Conferences Pre 7 2 . 6. ?, Prehearing Conference Order Pre 7 2.6.3.I Effect of Prehearing Conference Order Pre 7 2.6 3 2 Objections to Prehearing Conference Order Pre 7 2.6.2 3 Appeal from Prehearing Conference Order Pre 8 2.7 Conference Calls Pre 8 .
l 2.8 Prehearina Motions Pre 8 2.8.1' Prehearing Motions Challenging ASLB Composition Pre 8 2.8.1.1 Contents of Motion Challenging ASLB Composition Pre 9 2.8.1.2 Evidence of Bias in Challenges to ASLB Composition Pre 9 2.8.1.3 Waiver of Challenges to ASLB Composition Pre 10 2.9 Intervention Pre 10 2.9.1 General Policy on Intervention Pre 10 2.9.2 Intervenor's Need for Counsel Pre 11 2.9.3 Petitions to Intervene Pre 12 2.9.3.1 Pleading Requirements Pre 16 ('T 2.9.3.2 Defects in Pleadings Pre 19 Q 2.9.3.3 Time Limits / Late Petitions Pre 20 SEPlEMBER 1988 PREHEARINGS - TABLE OF CONTENTS i
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! i l j i TABLE OF CONTENTS 9! PREHEARING MATTERS 2.9.3.3.1 Time for Filing Intervention Petitions Pre 21 2.9.3.3.2 Sufficiency of Notice of Time Limits on Intervention Pre 21 2.9.3.3.3 Consideration of Untimely Petitions to Intervene Pre 21 ! 2.9.3.3.4 Appeals from Rulings on Late Intervention Pre 35 2.9.3.3.5 Mootness of Petitions to Intervene Pre 37 2.9.3.4 Amendment of Petition Expanding Scope of Intervention Pre 37 2.9.3.5 Withdrawal of Petition to Intervene Pre 37 l 2.9.3.6 Intervention in Antitrust Proceedings Pre 38 2.9.4 Interest and Standing for Intervention Pre 40 2.9.4.1 Judicial Standing to Intervene Pre 42 l
'2.9.4.1.1 " Injury-in-Fact" and " Zone of Interest" Tests for l Standing to Intervene Pre 42 l 2.9.4.1.2 Standing of Organizations to Intervene Pre 49 l 2.9.4.1.3 Standing to Intervene in Export Licensing Cases Pre 54 i 2.9.4.1.4 Standing to Intervene in Specific Factual Situations Pre 55 l 2.9.4.2 Discretionary Intervention Pre 58 l
2.9.5 Contentions of Interveners Pre 60 2.9.5.1 Pleading Requirements for Contentions Pre 65 2.9.5.2 Requirement of Cath from Interveners Pre 71 2.9.5.3 Requirement of Contentions for Purposes of Admitting Petitioner as a Party Pre 71 ; 2.9.5.4 Material Used in Support of Contentions Pre 73 2.9.5.5 Timeliness of Submission of Contentions Pre 75 2.9.5.6 Contentions Challenging Regulations Pre 84 2.9.5.7 Contentions Involving Generic Issues Pre 86 2.9.5.8 Contentions Challenging Absent or Incomplete Documents Pre 88 2.9.5.9 Contentions re Adequacy of Security Plan Pre 89 2.9.5.10 Defective Contentions Pre 90 2.9.5.11 Discovery to Frame Contentions Pre 90 2.9.5.12 Stipulations on Contentions (Reserved) Pre 90 2.9.5.13 Appeals of Rulings on Contentions Pre 90 2.9.6 Conditions on Grants of Intervention Pre 91 2.9.7 Appeals of Rulings on Intervention Pre 91 2.9.7.1 Standards for Reversal of Rulings on Intervention Pre 93 2.9.8 Reinstatement of Intervenor After Withdrawal Pre 94 2.9.9 Rights of Interveners at Hearing Pre 94 2.9.9.1 Burden of Proof Pre 96 2.9.9.2 Presentation of Evidence Pre 96 2.9.9.2.1 Affirmative Presentation by Intervenor/ Participants Pre 96 2.9.9.2.2 Consolidation of Intervenor Presentations Pre 96 2.9.9.3 Cross-Examination by Interveners Pre 98 2.9.9.4 Intervenor's Right to File Proposed Findings Pre 98 SEPTEMBER 1988 PREHEARINGS - TABLE OF CONTENTS ii
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n' V 111 TABLE OF CONTENTS PREHEARING MA1TERS 2.9.9.5 Attendance at/ Participation in Prehearing Conferences / Hearings- Pre'98 2.9.9.6 Pleadings and Documents of Interveners Pre 99 2.9.10 Cost of Intervention Pre 100 2.9.10.1 Financial Assistance to Interveners Pre 100 2.9.10.2 Interveners' Witnesses Pre 102 2.9.11 Appeals by Interveners Pre 102 2.9.12 Intervention in Remanded Proceedings Pre 102 2.10 Noncarty Participation - Limited Appearance and Interested States Pre 102 2.10.1 Limited Appearances in NRC' Adjudicatory Proceedings Pre 102 2.10.1.1 Requirements for Limited Appearance Pre 102 2.10.1.2 Scope / Limitations of Limited Appearances Pre.103 p 2.10.2 Participation by Nonparty Interested States Pre 103 2.11 Discovery Pre 108 2.11.1 Time for Discovery . Pre 108
'2.11.2 Discovery Rules Pre 110 2.11.2.1 Construction of Discovery Rules Pre 113 2.11.2.2 Scope of Discovery Pre 113 2.11.2.3 Requests for Discovery During Hearing Pre 116 2.11.2.4' Privileged Matter Pre 116 2.11.2.5 Protective Orders Pre 125 2.11.2.6 Work Product Pre 126 2.11.2.7 Updating Discovery Responses Pre 127 2.11.2.8 Interrogatories Pre 127 2.11.3 Discovery Against the Staff Pre 129 2.11.4 Responses to Discovery Requests Pre 130 2.11.5 Compelling Discovery Pre 131 2.11.5.1 Compelling Discovery From ACRS and ACRS Consultants Pre 134 2.11.5.2 Sanctions for Failure to Comply .ith Discovery Orders Pre 134 2.11.6 Appeals of Discovery Rulings Pre 137 O
SEPTEMBER 1988 PREHEARINGS - TABLE OF CONTENTS iii i
0 _73 p ]J) 9 2.2 2.0 PREHEARING MATTERS (SEE 3.3) s 2.1 Schedulina of Hearinas (SEE 3.3.1 to 3.3.5.2). 2.2 Necessity of Hearina The Commission's summary disposition rule (10 CFR 2.749) gives a party a right to an evidentiary hearing only where there is a genuine issue of material fact. An important effect of this principle is that applicants for licenses- may-be subject to substantial expense and delay when genuine issues have been raised, but are entitled to an expeditious determination, without need for an evidentiary hearing on all issues which are not genuine. Consumers Power Co. (Big Rock Point Plant), LBP-82-8,15 NRC 299, 301 (1982). Where the NRC Staff proposes to grant an applicant's request for an exemption from requirements of the. Commission's regulations, an intervenor who seeks a hearing on the exemption request must raise a material' issue of fact regarding the application of 10 CFR s 50.12. O However, the-Commission did not address the question of whether Section 189a of the Atomic Energy Act gives a right to an adjudica-i]
\ tory hearing on an exemption request to an intervenor.who has raised a material issue of fact concerning the proposed exemption. Caroling Power and Liaht Co. and North Carolina Eastern Municinal Power Aaency (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 NRC 769, 774-75 (1986), Aff'd, Eddleman v. NRC, 825 F.2d 46 (4th Cir.1987).
10 CFR 2.105(a)(4), in effect in 1982, required that the Commission issue a notice of proposed action - also called a notice of oppor-tunity for hearing - only with respect to an application for a facility license, an application for a license to receive radioactive waste for commercial disposal, an application to amend such licenses where significant hazards considerations are involved, or an application for "any other license or amendment as to which the Commission determines that an opportunity for public hearing should be afforded." A materials license amendment does not fall into these categories. Furthermore, even in cases where Section 189a of the Atomic Energy Act requires a trial-type hearing, a person requesting a hearing must make some threshold showing that a hearing would be necessary to resolve opposing and supported factual assertions. Kerr-McGee Corporation (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 245, 256 (1982), aff'd sub nom. City of West Chicaao v. NRC, 701 F.2d 632 (7th Cir. 1983). Congress has, by statute, established the authority of the Com-mission to provide for hearings upon the request of any person
)
whose interest may be affected by the licensing proceeding and DECEMBER 1987 PREHEARING MATTERS 1
l l 5 2.2 to establish Licensing Boards to conduct such hearings. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-87, 16 NRC 1195, 1201 (1E82). However, it is now clear that a formal "on the record" adjudicatory type hearing , under Section 554 of the Administrative Procedure Act (APA), 5 U.S.C. { 9 554, like those conducted by Licensing Boards, is not required for j so-called materials licenses. Philadelphia Electric Co. (Limerick l Generating Station, Units 1 and 2), ALAB-765, 19 NRC 645, 651 (1984); j see West Chicaao Rare tarths, suora, 15 NRC at 244-62, aff'd sub nom. City of West Chicaao v. NRC, 701 F.2d 632 (7th Cir. 1983); Seauovah Fuels Corporation (Sequoyah UF6 to UF4 facility), CL1-86-17, 24 NRC 489, 495 (1986). i i Constitutional due process does not require a formal adjudicatory hearing for a materials licensing case where the interveners have not specified any health, safety, and environmental concerns which I constitute liberty or property interests subject to due process protection, where the issues can be evaluated fully and fairly l without using formal trial-type procedures, and where formal hearing procedures would add appreciably to the government's administrative burden. Seauovah, supra, 24 NRC at 495-98. Current NRC environmental regulations do not specify what type of , hearing may be required for any Staff environmental finding regarding ( a materials license action. Seauovah, suora, 24 NRC at 498. l Once a notice of opportunity for hearing has been published and a request for a hearing has been submitted, the decision as to whether a hearing is to be held no longer rests with the Staff but instead is transferred to the Commission or an adjudicatory tribunal designated to preside in the proceeding. Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-80-26, 12 NRC 367, 371 (1980). l Where complainants were denied a hearing after they had alleged a failure of the Director to take stronger action, the Appeal Board, in upholding the denial, noted that the Director's decision in no way restricted the authority of the ASLB to further restrict or even deny the license for operation of the facility. Further, it was not grounds for a hearing that, if a hearing was not immediately held on the Director's decision, the money spent on the plant would later influence the Licensing Board's decision. Houston Liahtina and Power Comoany (South Texas Project, Units 1 & 2), CLI-80-32, 12 NRC 281, 288-290 (1980); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1264 (1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). There is no statutory entitlement to a formal hearing under the Atomic Energy Act or NRC regulations with regard to materials licensing actions. Kerr-McGee Corp. (West Chicago Rare Earths O MARCH 1987 PREHEARING MATTERS 2
f i
.-( n 9 2.5
-O) Facility), CLI-82-21, 16 NEL 401, 402 (1982); Rockwell International Corp. (Energy Systems Group Special Nuclear Materials License No.
SNM-21), CLI-83-15, 17 NRC 1001, 1002 (1983). Rather, to mandate that a hearing be convened, prospective interveners must fulfill the requirements for intervention. The presiding officer's review of the postcards and letters from individuals living near the Rockwell International nuclear facilities found only vague and generalized allusions to danger or injury from radiation. Therefore, standing was not established and there was no authority to hold a hearing. Rockwell International Corp. (Energy Systems Group Special Nuclear Materials License No. SNM-21), LBP-83-65, 18 NRC 774, 777-78 (1983). There is no legal requirement for a notice-and-comment rulemaking proceeding concerning the Commission's statutory concurrence in the Department of Energy's General Guidelines for Recommendation of Sites for Nuclear Waste Repositories, pursuant to Section 112(a) of the Nuclear Waste Policy Act of 1982. NRC Concurrence in Hiah-level Waste Repository Safety Guidelines Under Nuclear Waste Policy Act of 1282, CLI-83-26, 18 NRC 1139, 1140 (1983). 2.3 Location of Hearina 2.3.1 Public Interest Requirements Affecting Hearing Location D (RESERVED) 2.3.2 Convenience of Litigants Affecting Hearing Location (SEE 3.3.5.2) 2.4 Issues for Hearina (SEE 3.4 to 3.4.6) 2.5 Notice of Hearina 10 CFR 2.105(a)(4), in effect in 1982, required that the Commission issue a notice of proposed action - also called a notice of oppor-tunity for hearing - only with respect to an application for a facility license, an application for a license to receive radioactive waste for commercial disposal, an application to amend such licenses where significant hazards considerations are involved, or an application for "any other license or amendment as to which the Commission determines that an opportunity for public hearing should be afforded." A materials license amendment does not fall into any of these categories. Kerr-McGee Corporation (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232, 245 (1982), aff'd sub nom. City of West Chicaao v. NRC, 701 F.2d 632 (7th Cir. 1983)..
/' 10 CFR s 2.105 requires that formal procedures under Part 2, Subpart G, be adhered to following a notice of proposed action MARCH 1987 PREHEARING MATTERS 3
f 9 2.5.1 issued under s 2.105. The Rules of Practice do not provide latitude to a Board to convene an informal hearing. General Electric Co. (GETR Vallecitos), LBP-83-19,17 NRC 573, 576 (1983). . 1 2.5.1 Contents of Notice of Hearing Operating license proceedings start with the notice of proposed action (10 CFR @ 2.105) and are separate from prior proceedings. Thus, a Licensing Board in a construction permit , hearing may not order that certain issues be tried at the OL proceeding. Carolina Power and Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), CLI-80-12,11 NRC 514, 517 (1980). i A Licensing Board does not have the power to explore matters ] beyond those which are embraced by the notice of hearing for , the particular proceeding. This is a holding of general l applicability. Portland General Electric Company (Trojan l Nuclear Plant), ALAB-534, 9 NRC 287, 289-290 n.6 (1979); Public Service Comoany of Indiana (Harble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-171 (1976). See also Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426 (1980); Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 565 (1980). , 1 A notice of hearing must correspond to the agency's statutory authority over a given matter; it cannot confer or broaden that jurisdiction to matters expressly proscribed by law. Florida Power and Liaht Co. (St. Lucie Plant, Unit No. 2), ALAB-661, 14 NRC 1117, 1123 (1981). j 2.5.2 Adequacy of Notice of Hearing One receiving filings in a proceeding is charged with reading and knowing matters therein which might affect his rights. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 13 (1980). Where an original notice of hearing is too narrowly drawn, a requirement i a subsequent notice that those who now seek to intervene state that they did not intervene before because of limitations in the original notice was not improper. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 10 (1980). 2.5.3 Publication of Notice of Hearing in Federal Reaister In Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 & 2), ALAB-445, 6 NRC 865 (1977), it was held MARCH 1987 PREHEARING MATTERS 4
p p '9 2.5.4 e {u),: ' ' that, while 10 CFR 9 2.104(a) requires'that notice of hearing initiating a construction permit proceeding be published in o the Federal Reaister at least 30 days prior to commencement of - hearing, it does not require that such notice establish time, place and date for all phases of the evidentiary hearings. However, in an unpublished opinion . issued on December 12,
.1977, the Federal District Court for the Northern District of' Mississippi held that the interpretation of the notice requirements by the Appeal Board in Yellow Creek was erroneous and that at least 30 days prior public notice of the time, place and date of hearing must be provided.
The Licensing Board rejected Petitioner's argument that " mere notice in the Federal-Reaister ... is inadequate notice ...." The Federal Register Act expressly provides that such publication constitutes notice to "all persons residing within I the States of the Union" (44'U.S.C. 1508). See Federal Croo Insurance Corp. v Merrill, 332 U.S. 380 (1947). See also Lona Island Lichtina Company (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631 (1975); Florida Power and Lioht Company (Turkey Point Nuclear Generating. Units 3 and 4), i LBP-79-21, 10 NRC 183, 191-192 (1979). 1
-p In an operating license amendment proceeding, the Licensing Board ruled that the law required the NRC to publish once in I the Federal Reaister notice of its intention to act on the application for amendment to the operating license. Turkey Point, suora, LBP-79-21, 10 NRC at 192.
Publication in the Federal Reaister of conditions on in-tervention is notice as to all of those conditions, and one cannot excuse a failure to meet those conditions by a claimed lack of knowledge. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 10 (1980). 2.5.4 Requirement to Renotice Where a full-term operating license proceeding had been delayed by a lengthy NRC Staff review and the original notice of the opportunity for a hearing had been issued j ten years earlier, a Licensing Board found it necessary to renotice the opportunity for a hearing. Rochester Gas and Electric Corp. (R.E. Ginna Nuclear Plant, Unit 1), LBP-83-73, 18 NRC 1231, 1233 (1983), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-539, 9 NRC 422 (1979) wherein the Appeal Board opined that a hearing notice issued "perhaps 5 to 10 years" earlier is " manifestly stale". The l renotice cannot limit the scope of contentions to those involving design changes or those based on new informa-tion. The new notice must allow the raising of any MARCH 1987 PREHEARING MATTERS 5
issues which have not been previously heard and decided. See Houston Liahtinc and Power Co m (Allens Creek Nuclear Generat- , ing Station, Ur.it 1), ALAB-535, 9 NRC 377, 386-387 (1979). ! 2.6 Prehearina Conferences Prehearing conference matters are governed generally by 10 CFR ss 2.751a, 2.752. There are several types of prehearing conferences, each of which serves a different purpose. For a discussion of the types of prehearing conferences'and of the purposes of such conferences., see Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1
& 2), LBP-78-23, 8 NRC 71, 76 (1978).
The purposes of a general prehearing conference, in general, are set out in 10 CFR s 2.752(a). Such a prehearing conference should be held within 60 days after completion of discovery. 10 CFR 9 2.752(a). "Special" prehearing conferences, provided for by 10 CFR s 2.751a and applicable only to contested proceedings, may be utilized to consider the sufficiency of petitions to intervene and of issues raised by interveners. Duouesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973). Where a party has an objection to the scheduling of the prehearing phase of a proceeding, he must lodge such objection promptly. Late requests for changes in scheduling will not be countenanced absent extraordinary unexpected circumstances. Consolidated Edison Co. of N.Y.. Inc. (Indian Point Nuclear Generating Station, Units 1, 2 & 3), ALAB-377, 5 NRC 430 (1977). A party seeking to be excused from participation in a prehearing conference should present its justification in a request filed before the date of the conference. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 191 (1978). 2.6.1 Transcripts of Prehearing Conferences Prehearing conferences may be stenographically reported. !' 10 CFR ss 2.751a(c), 2.752(b). A Licensing Board must make a good faith effort to determine whether the facts support a party's motion to correct the transcript of a prehearing conference. Public Service Co. of l New Hampshire (Seabrook Station, Units 1 and 2), ALAB-839, 24 j NRC 45, 51 (1986). ' l 9\ 1 MARCH 1987 PREHEM'ING MATTERS 6 l l - _ _ _ _ _ _ _ _ _. 8
g , 9 2.6.3.2 G 2.6.2 Special Prehearing Conferences Special prehearing conferences are covered by 10 CFR 9 2.751a. Such prehearing conferences: (a) are required in contested proceedings only. 10 CFR, 9 2.751a, n.la; (b) will usually be held within 90 days of the issuance of notice of hearing or such other time as the Commission or presiding officer may deem appropriate. 10 CFR 9 2.751a(a); (c) will be utilized to rule on petitions to intervene unless this has alredy been done by a previous Licensing Board appointed for that purpose. Cf., Duouesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973); (d) may be utilized to exclude certain issues raised by petitions to intervene, the adequacy of which was not ruled upon when the petition was allowed. Ducuesne Liaht Co., ALAB-109, suora;
;O) (e) may be used to establish a schedule for further actions v in the proceeding, to direct further informal confer-ences, and to establish other courses of action, as set forth in 10 CFR 2.751a(a) and (b), to expedite the proceeding.
2.6.3 Prehearing Conference Order 2.6.3.1 Effect of Prehearing Conference Order A prehearing conference order may describe action taken at the conference, schedule further actions, describe stipulations agreed to, identify key issues, provide for discovery and the like. The order should finalize the issues to be considered, 10 CFR Part 2, Appendix A, para. II(c), and will control the subsequent course of proceedings unless modified for cause. 10 CFR 99 2.751a(d), 2.752(c). 2.6.3.2 Objections to Prehearing Conference Order Objections to the prehearint conference order may be filed by parties other than the Staff within 5 days after service of the order and by the Staff within 10 days after service. 10 CFR 99 2.751a(d), 2.752(c). Parties may not file replies to such objections unless the Board so directs. Id. 4 i v MARCil 1987 PREllEARING MATTERS 7
l 2.6.3.3 Appeal from Prehearing Conference Order Since a prehearing conference order is interlocutory in nature, it is not generally appealable except with regard to matters for which interlocutory appeal is provided. In this vein that portion of a prehearing conference order which grants or wholly denies a petition for leave to intervene is appealable under 10 CFR s 2.714a. Mississioni Power & Liaht A (Grand Gul,' Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 424 (1973). The action of a Licensing Board in provisionally ordering a 9 hearing and in preliminarily ruling on petitions for leave to { intervene is not appealable under 10 CFR 6 2.714a in a ! situation where the Board cannot rule on contentions and the need for an evidentiary hearing until after the special prehearing conference required under 10 CFR 9 2.751a and where the petitioner denied intervention may qualify on refiling. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275, 280 (1978). 2.7 Conference Calls Both prior to the start of a hearing and sometimes during recesses thereof, it may become necessary for the Board to communicate quickly with the parties. In this vein, the practice has grown up of using telephone conference calls. The Appeal Board has indicated that such calls should not be utilized unless all parties participate except in the case of the most dire necessity. Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-313, 3 NRC 94, 96 (1976). If any rulings are made, the Licensing Board must make and enter a written order reflecting the ruling directly thereafter. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units < 1 & 2), ALAB-334, 3 NRC 809, 814-815 (1976). Where a party informs an adjudicatory board that it is not interested in a matter to be discussed in a conference call between the board and the other litigants, that party cannot later complain that it was not consulted or included in the conference call. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 269 n.63 (1978). 2.8 Prehearina Motions 2.8.1 Prehearing Motions Challenging ASLB Composition Disqualification of adjudicatory board members is covered generally by 10 CFR s 2.704. In Consumers Power Company (Midland Plant, Units 1 & 2), .. ALAB-101, 6 AEC 60 (1973), the Appeal Board listed the ! MARCH 1987 PREHEARING MATTERS 8
i y-( 9 2.8.1.2 4 ::/ 6
)d' circumstances'under which a board' member is subject.to disqualification. Those circumstances include situations in
? which: (1) the board member has. a direct, personal, substantial pecuniary-_ interest in the results of the case; (2) the board member has a personal bias against a partici-pant; (3) the board member,has served in a prosecutory or investi-
-gative role with regard-to the same facts as are in issue; (4) the board member has prejudged factual -- as distia-guished from legal or policy -- issues; (5) the board member has engaged in conduct which gives the appearance of. personal bias or prejudgment of factual issues.
A litigant may move for disqualification of any board member who, by word or deed, has manifested a conflict of interest or a bias covered by the above. listing. 2.8.1.1 Contents of Motion Challenging ASLB Composition {) In Duauesne Liaht Co. (Beaver Valley Power Station, Units 1 & 2), ALAB-172, 7 AEC 42 (1974), the Appeal Board summarized the requirements for disqualification motions as follows: (1) motions must be accompanied by affidavits establishing a basis for the charge; (2) motions must be filed in a timely manner, citina, Consumers Power Co., ALAB-101, suora; Commonwealth Edison Cp2 (LaSalle County Nuclear Power Station, Units 1 & 2), CLI-73-8, 6 AEC 169 n.1 (1973); (3) motions for disqualification, as with all other motions, must be served on all parties or their attorneys, citina, 10 CFR ss 2.701(b), 2.730(a). The requirement of an affidavit must be met even if the basis for the motion is founded on matters of public record. Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-225, 8 AEC 379 (1974). 2.8.1.2 Evidence of Bias in Challenges to ASLB Composition
/ Although no specific guidelines can be set as to the type
( or quantum of evidence sufficient to support a disquali-fication motion, it is clear that the mere fact that a MARCH 1987 PREHEARING MATTERS 9
I l 9 2.8.1.3 Board issued a large number of unfavorable or even erroneous rulings with respect to a given party is not evidence of bias. l To establish bias, something more nust be shown than that the ' presiding officials decided matters incorrectly; to be wrong i is not necessarily to be partisan. Northern Indiana Public I Lervice Co._ (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974). j Nor is an alleged institutional bias sufficient for dis-qualification. Tennessee Vallev Authority (Bellefonte Nuclear Plant, Units 1 & 2), ALAB-164, 6 AEC 1143 (1973). 2.8.1.3 Waiver of Challenges to ASLB Composition If a party has reason to believe that there are grounds for disqualification, he must raise the question at the earliest possible moment. Failure to move for disqualification as soon i as the information giving rise to such a claim comes to light amounts to a waiver of the objection. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 385 (1974); Northern Indiana Public Service Co., ALAB-224, supra; Consumers Powcr Co. (Midland Plant, Units 1 & 2), ALAB-101, j 6 AEC 60, 64 (1973); Public Servic0 Electric & Gas Co. l (Atlantic Nuclear Generating Station, Units 1 & 2), LBP-78-5, ' 7 NRC 147, 149 (1978). 2.9 Intervention 2.9.1 General Policy on Intervention The general attitude of the Appeal Panel is that public participation through intervention is a positive factor in the licensing process and that interveners perform a valuable function and are to be complimented and encouraged. See, e.a., Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-256, 1 NRC 10, 18 n.9 (1975); Consolidated Edison Co. of N.Y. Inc. (Indian Point Nuclear Generating Station, Unit 2), ALAB-243, 8 AEC 850, 853 (1974); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425 (1974); Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-183, 7 AEC 222 (1974). The statutory mandate does not confer the automatic right of intervention upon anyone. The Commission may condition the exercise of that right upon the meeting of reasonable procedural requirements. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 469 (1982), vacated in part on other arounds, CLI-83-19, 17 NRC 1041 (1983). MARCH 1987 PREHEARING MATTERS 10
fN 5 2.9.2 A petitioner for intervention is entitled to' party status if he '(1) establishes standing and (2) pleads at least one valid contention. Carolina Power and Liaht Co. and North Carolina
-Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-Il9A, 16 NRC 2069, 2070 (1982).
2.9.2 Intervenor's Need for Counsel The NRC's Rules of Practice permit non-attorneys to' appear and represent their organizations in agency proceedings. Metropolitan' Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247'(1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). Furthermore, lay representatives are not held to as high a standard as lawyers. But the right of participation accorded pro se representatives carries with it the corresponding. responsibilities to comply with and be bound by the same agency procedures as all other parties, even where a party is hampered by limited resources. i Three Mile Island, supra, 19 NRC at 1247, citina, Statement of. Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 454 (1981). There is no requirement that an intervenor be represented by counsel in NRC proceedings. Offshore Power Systems (Manufac-turing License for Floating Nuclear Power Plants), LBP-75-67,
.(,b) 2 NRC 813 (1975); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2). ALAB-802, 21 NRC 490, 498 (1985). As a rule, pro se petitioners will be held to less rigid standards for pleading, although a totally deficient petition will be rejected. Public Service Electric & Gas Co.
(Salem Nuclear Generating Station, Units 1 & 2), ALAB-136, 6 AEC 487 (1973). While there is no requirement that an intervenor be represented by counsel in NRC proceedings, there are some indications that the regulations do-not contemplate representation of a party by a non-lawyer and that any party who does not appear oro se must be represented by a lawyer. See 10 CFR S 2.713(a), (b); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-474, 7 NRC 746, 748 (1978); Duke Power Co. (Cherokee Nuclear Station, Units 1. 2 & 3), ALAB-440, 6 NRC 642, 643 n.3 (1977); Virainia Electtte & Power Company (North Anna Power Station, Units 1 & 2), Licensing Board Order of October 8,1976 (unpublished). As the Three Mile Island and Cherokee cases cited amply demonstrate, however, any requirement that only lawyers appear in a representative capacity is usually waived, either explicitly or implicitly, as a matter of course. [v MARCH 1987 PREHEARING MATTERS 11
, j i i Insofar as organizations are concerned, 10 CFR & 2.713(a) clearly limits representation to either an attorney or a l member, and it can logically be read as precluding repre-sentation by an attorney and a member at the same time. But it does not appear to bar representation by a member through- , out a proceeding if, at some earlier time during the proceed- 1 ing, an attorney has made an appearance for the organization. i Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Station), LBP-79-17, 9 NRC 723, 724 (1979). Following the withdrawal of its lead counsel on the eve of its > hearing, an intervenor has an affirmative duty to request a postponement. A Board is not required to order a postponement ! sua soonte. Cleveland Electric Illuminating Co. (Perry J Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, i 498 (1985). , 2.9.3 Petitions to Intervene Intervention is covered genera'ly in 10 CFR 55 2.714, 2.714a. In the first instance, the decision as to whether to grant or deny a petition to intervene or a request for a hearing lies , with the Licensing Board. Metropolitan Edison Co. (Three Mile i Island Nuclear Station, Units 1 & 2), CLI-73-16, 6 AEC 391 (1973).
'l There is nothing in 10 CFR 6 2.714 or the case law inter-preting that rule which permits Licensing Boards to exclude certain groups because of their opinions on nuclear power, either generally or as related to specific plants, nor is there a Commission rule prescribing the conduct of any party (other than licensees or others subject to its regulatory '
jurisdictions) outside adjudicatory proceedings. Consolidated Edison Co. of New York (Indian Point, Unit 2); Power Authority of the State of New York (Indian Point, Unit 3), CLI-82-15, 16 NRC 27, 31, 32 (1982). The testimony of experts sponsored by petitioner may make a valuable contribution to the record, but the merits of that testimony need not be decided in order to admit a petitioner as a party. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117B, 16 NRC 2024, 2029 (1982). In past operating license cases, petitions to intervene ] were sometimes considered and ruled upon by an ASLB especially appointed for that purpose, and a separate ASLB conducted separate proceedings if intervention were permitted. Pacific Gas & Electric Co. (Stanislaus Nuclear 4 MARCH 1987 PREHEARING MATTERS 12
s i: H
.A 5 2.9.3 i
Project, Unit 1), ALAB-400, 5 NRC 1175, 1177-78 (1977). In construction permit cases, 4 tirole ASLB usually performed both. tasks. Sgg Mississioni Power' & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423. 424 n.2 (1973). In ruling on a petition to intervene, the Licensing Board. must consider, inter alia, the nature of petitioner's right under the Atomic Energy Act to be made a party to the proceeding, the nature and extent of petitioner's property, financial or other interest in the proceeding, and the possible effect of any Order which may be entered in the proceeding on the petitioner's interests. 10 CFR S 2.714(d);
. Washinaton Public Power Supoly System (WPPSS Nuclear Projects No. 3 and No. 5), LBP-77-16, 5 NRC 650 (1977).
An intervention petition must, under 10 CFR 9 2.714(a)(2), set forth with particularity certain factors regarding the petitioner's' interest in the proceeding and address the criteria set forth in 10 CFR s 2.714(d). Florida Power and Liaht Co. (Turkey Point Plant, Units 3 and 4), CLI-81-31, 14 NRC 959,-960 (1981); Consumers Power Co. (Big Rock Point Plant), CLI-81-32,14 NRC 962, 963 (1981). m\ A petition for leave to intervene must set forth with (d particularity the interest of the petitioner in the proceed-ing, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene, and the specific aspect of the subject matter of the proceeding as to which petitioner wishes to intervene. 10 CFR S 2.714(a)(2). The burden is on the petitioner to satisfy these requirements. 10 CFR 9 2.732, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983); Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), LBP-87-2, 25 NRC 32, 34 (1987). Petitioners for intervention are required by Commission regulations to set forth in their petitions their interest in the proceeding, how that interest might be affected by the result of the proceeding, the reasons why they should be permitted to intervene, and the specific aspects of the subject matter as to which intervention is sought. Philadel-phia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1431 (1982), citina, 10 CFR 9 2.714(a)(2). See Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116, 118 (1987). The ASLB must make specific determinations as to whether _(
, the petition is proper and meets the requirements for k intervention and must articulate in reasonable detail JUNE 1987 PREHEARING MATTERS 13
L the basis for its determination. Duauesne Liaht Co. (Beaver ! Valley Power Station, Unit 1), ALAB-105, 6 AEC 181 (1973); Northern States Power Co. (Prairie Island Nuclear Generating ; Plant, Units 1 & 2), ALAB-104, 6 AEC 179 (1973). Assuming that the requisite personal interest of the inter-venor is shown, if the ASLB determines that there is present i at least one contention which meets applicable-requirements, i intervention will be permitted. The ASLB has no duty to 1 consider additional contentions for the purpose of determining whether intervention should be permitted. Mississiooi Power & Liaht Co., ALAB-130, suora, 6 AEC at 424; Louisiana Power & , Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB- l 125, 6 AEC 371, 372 (1973); Duauesne Liaht Co. (Beaver Valley { Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973). 1 Although 10 CFR 5 2.714 has been amended with regard to the i time for filing contentions, the "one good contention" rule remains. 10 CFR 9 2.714(b). Epaet Sound Power and Liaht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP 74, 16 NRC 981, 985 (1982), citina, Cincinnati Gas and i Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14, j 11 NRC 570, 571 (1980). 10 CFR 9 2.714 now permits the amendment of petitions to intervene and contentions up to 15 days prior to the first prehearing conference. The presiding board may, of course, set a different time period pursuant to 10 CFR & 2.711. General Electric Co. (GETR Vallecitos), LBP-83-19,17 NRC 573, 578 (1983). A Petitioner must advance at least one admissible contention in order to be permitted to intervene in a proceeding. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1432 (1982), citina, 10 CFR s 2.714(a)(2), Mississioni Power and _l.iaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424 (1973); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116,118 (1987). Pro se petitioners will be held to less rigid standards of clarity and precision with regard to the petition to inter-vene. Nevertheless, a totally deficient petition will be rejected. Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Units 1 & 2), ALAB-136, 6 AEC 487, 489 (1973). In NRC proceedings in which a hearing is not mandatory but depends upon the filing of a successful intervention petition, an " intervention" Licensing Board has authority only to pass upon the intervention petition. If the petition is granted, thus giving rise to a full hearing, JUNE 1987 PREHEARING MATTERS 14 _ _ _ _ - - - i
I F L l l , 9 2.9.3
}
a second Licensing Board, which may or may not be composed of . the same members as the first Board, is established to conduct I the hearing. Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 & 2), LBP-78-23, 8 NRC 71, 73 (1978). See also Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, 366 (1981), citina, Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175 (1977). 4 Section 189a of the Atomic Energy Act does not provide an unqualified right to a hearing. The Commission is authorized ; to establish reasonable regulations on procedural matters like i the filing of petitions to intervene and on the proffering of contentions. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1045 (1983), citina, BPI v. ALC, 502 F.2d 424 (D.C. Cir. 1974); Easton Utilities Commis-sion v. AEC, 424 F.2d 847 (D.C. Cir. 1970). The identity of specific individual members of a petitioner organization whose interests are being represented by that organization is not viewed as an integral and material portion of the petition to intervene. Any change in membership, therefore, does not require an amendment of the petition. Washinaton Public Power Sunoly System (WPPSS Nuclear Project [m} J 1), LBP-83-59, 18 NRC 667, 669 (1983). While it is true that a petitioning organization must disclose the name and address of at least one member with standir.g to intervene so as to afford the other litigants the means to verify that standing exists, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 389-400 (1979), there is no requirement that the identification of such a member or members be made in the petition to intervene or in an attached affidavit. Washinaton Public Power Supolv System (WPPSS Nuclear Project 1), LBP 59, 18 NRC 667, 669 (1983). The provision in original 10 CFR & 2.714(a), that a petition to intervene be accompanied by a supporting affidavit setting forth the facts pertaining to the petitioner's interest, was abolished effective May 26, 1978. 43 Fed. Rea. 17,798 (1978). Washinaton Public Power Sucoly System (WPPSS Nuclear Project 1), LBP-83-59, 18 NRC 667, 669 (1983). Once a member has been identified sufficiently to afford verification by the other parties and the petition to intervene has been granted, it is presumed that the organizational petitioner continues to represent individual members with standing to intervene who authorize the o intervention. It is doubtful that the death or relocation ( outside the geographical zone of interest of the only JUNE 1987 PREHEARING MATTERS 15
( l i l l 5 2.9.3.1 named members upon whom standing was based would defeat this presumption and require a further showing of standing. Washinaton Public Power Sunoly System (WPPSS Nuclear Project ) 1), LBP-83-59, 18 NRC 667, 669 (1983). l 2.9.3.1 Pleading Requirements ! l l Under 10 CFR 6 2.714, a petition to intervene must: l (1) be in writing; i l (2) identify the specific aspect or aspects of the subject l { l matter of the proceeding as to which the petitioner ! wishes to intervene; (3) set forth with particularity the interest of the petitioner in the matter, the manner in which that j interest may be affected by the proceeding, and the reasons why the petitioner should be permitted to intervene with particular reference to the petitioner's right to be made a party under the Atomic Energy Act, the I nature and extent of petitioner's property, financial or other interest in the proceeding, and the possible effect of any order entered in the proceeding on petitioner's interest. In addition, prior to the first prehearing conference, the petitioner must file a supplement to his petition to intervene which sets forth the contentions the petitioner seeks to have litigated and the basis for each contention set forth with reasonable specificity. 10 CFR S 2.714(b). Illinois Power Co. (Clinton Power Station, Unit 1), LBP-81-61, 14 NRC 1735, 1737 (1981). Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1654 (1982). Where a contention is made up of a general allegation which, standing alone, would not be admissible under 10 CFR S 2.714(b), plus one or more alleged bases for the contention set forth with reasonable specificity, the matters in controversy raised by each such contention are limited in scope to the specific alleged basis or bases set forth in the contention. Clinton, suora, 14 NRC at 1737. Under 10 CFR @ 2.714 and 10 CFR s 2.714(b) an intervention petition must not only set forth with particularity the interest of the petitioner and how that interest may be affected by the proceeding, but must also include the bases for each contention, sufficiently detailed and specific to demonstrate that the issues raised are admissible and that further inquiry is warranted. Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), LBP-82-4, 15 NRC 199, 206 (1982). See also Philadelphia Electric Co. (Limerick Generat-ing Station, Unit 1), LBP-86-9, 23 NRC 273, 277 (1986). MARCH 1987 PREHEARING MATTERS 16 l
I 5 2.9.3.1 In general, these elements have been construed as requiring the petitioner-to show: (a) that he has a personal interest in the matter ( hg , residence in proximity to the reactor - Igg Northeta States' Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188 (1973); (b) how that' interest may be adversely affected; (c) the specific contentions as to which the petitioner desires to participate. Philadelphia Electric C L (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-73-10, 6 AEC 173 (1973); Florida Power and Liaht Co. (Turkey Point Plant, Units 3 and 4), CLI-81-31,14 NRC 959, 960 (1981), citino, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980); Consumers Power Co. (Big Rock Point Plant), CLI-81-32,14 NRC 962, 963 (1981). In BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974), the Court of Appeals for the District of Columbia Circuit upheld various aspects of 10 CFR 9 2.714, including the requirement that contentions be specified, and the requirement that the basis
-(x3p) for contentions be set forth.
Section 189a of the Atomic Energy Act does not provide a non-discretionary right to a hearing on all issues arguably related to an acknowledged enforcement problem without regard to the scope of the enforcement action actually proposed or taken. In order to be granted. leave to intervene, one must demonstrate an interest affected by the action, as required by 10 CFR s 2.714. Boston Edison Co. (Pilgrim Nuclear Power Station), CLI-82-16, 16 NRC 44, 45 (1982), citino, BPI v. Atomic Enerav Commission, 502 F.2d 424 (D.C. Cir.1974). Petitions drawn by counsel experienced in NRC practice must exhibit a high degree of specificity. In contrast, Licensing Boards are to-be lenient in this respect for petitions drawn oro se or by counsel new to the field or to the bar. Kansas Gas & Electric Co. (Wolf Creek Generating Station), ALAB-279, 1 NRC 559, 576-577 (1975). For a more recent case acknowledg-ing that a pro se petitioner for intervention should not be held to the same standards of clarity and precision to which a lawyer might reasonably be expected to adhere in the petition to intervene, see Wiscorsin Public Service Corporation (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 82 (1978). O MARCH 1987 PREHEARING MATTERS 17
Although a totally deficient pleading may not be justified on the basis that it was prepared without the assistance of counsel, a pyg_a petitioner is not "to be held to those standards of clarity and precision to which a lawyer might reasonably be expected to adhere." Public Service Electric and Gas Company -(Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973), cited in Houston Liahting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 546 (1980); Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63,16 NRC 571, 578 (1982). A petitioner is not permitted to incorporate massive docu-ments by reference as the basis for, or a statement of, his j contentions. Tennessee Vallev Authority (Browns Ferry Nuclear i Plant, Units 1 & 2), LBP-76-10, 3 NRC 209, 216 (1976). ! I A petition to inter /ene which seeks to raise antitrust ; contentions must comply with the requirements of 10 CFR
& 2.714 and must also set forth with particularity:
(1) facts which describe a situation inconsistent with the antitrust laws or their underlying policies; (2) facts which describe the existence of a meaningful nexus i between the activities under the nuclear license and the i aforementioned anticompetitive " situation"; i (3) the specific relief sought, including whether, how and to what extent any license conditions imposed by the attorney general fail to provide the requested relief. Wolf Creek, ALAB-279, agra; see also Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 32 l (1981). Petitions to intervene must initially specify the " aspect or aspects" of the subject matter of the proceeding as to which the petitioner wishes to intervene. An " aspect" is broader than a " contention" but narrower than a general reference to the NRC's operating statutes. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275, 278 (1978). A Board lacks jurisdiction to consider an intervention petition in which the aspect of the proposed intervention is not within the scope of the proceeding. P_ philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 277 (1986). Under 10 CFR 9 2.714 it is no longer necessary for peti-tioners for intervention to advance at least one viable contention when initially filing a petition to intervene. MARCH 1987 PREHEARING MATTERS 18
M-
$ 2.9.3.2 (J~I The petition may later be supplemented to include conten-tions. There is no single date when the petition must be supplemented. Pursuant to 10 CFR 9 2.714(b), the supplement may be submitted without ieave of the presiding officer 15 days prior to the special prehearing conference or, if none is held, the first prehearing conference. Whcansin Electric Power Company (Point Beach Nuclear Plant, Units 1 & 2), LBP-78-23, 8 NRC 71, 74 (1978).
1.
~The " bases" requirement in 10 CFR 9 2.714 is not to be equated with proof. The bases requirement is a pleading requirement concerning minimally acceptable allegations. An intervenor can meet that requirement and not have any evidence in support of it at that poirit. -In passing upon the question as to whether an intervention petition should be granted, it is not the function of a Licensing Board to reach the merits of any contention contained therein. Section 2.714 does'not require the petition to detail the evidence which will be offered in support of each contention. It is enough that the basis for the contention is identified with reasonable specificity. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-Il6, 16 NRC 1937, 1943 (1982), citina, Mississioni Power and liaht Co. (Grand Gulf Nuclear Station,
\
( Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). Where an original notice of hearing is overly narrowly drawn, a requirement that those who subsequently seek to intervene state that they did not intervene before because of limita-tions in the original notice was not an abuse of discretion. Houston liahtina and Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-574, 11 NRC 7, 10 (1980). The petition of an organization to intervene must show that the person signing it has been authorized by the organization to do so. Detroit Edison. company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 77 (1979). 2.9.3.2 Defects in Pleadings Although the requirements of 10 CFR 9 2.714 must ultimately be met, the Appeal Panel has made it clear that every bene-fit of the doubt should be given to the potential inter-venor in order to obviate dismissal of an intervention petition because of inarticulate draftsmanship or proce-dural or pleading defects. As such, petitioners will usually be permitted to amend petitions containing curable defects. Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-146, 6 AEC 631 (1973). A Licensing Board itself has no duty to recast conten-hV tions offered by a petitioner to make them acceptable MARCH 1987 PREHEARING MATTERS 19
i ).
, 9 2.9.3.3 under the regulations. -[ commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 406 (1974); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1660 (1982). Refusal to do so cannot constitute error. Seabrook, supra, citina, Zion, fuora.
Intervention petitions and requests for hearing cannot properly raise antitrust issues and health and safety issues in the same proceedings. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 32 (1981). 2.9.3.3 Time Limits / Late Petitions The Commission's regulations at 10 CFR 9 2.714(a)(1) provide j that nontimely filings of petitions to participate as a party will not be entertained absent a determination that the ; petition should be granted based upon a balancing of five l factors. (See 2.9.3.3.3 for five factors). Out of the five l factors enumerated in 10 CFR Q 2.714(a), the factors involving i the availability of other means to protect petitioner's l interest and the ability of other parties to represent t petitioner's interest are entitled to less weight than the l other three. (figg 2.9.3.3.3) . Mississioni Power and Liaht -q CL. (Grand Gulf Nuclear Station, Units 1 and 2), LBP-82-92,16 , i NRC 1376,1381,1384 (1982); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-17,19 NRC 878, 887 (1984), citina, Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760,1767 (1982). Regarding a Petition to intervene, some weight may be attached 1 to the fact that lateness, though not justified, is not ! extreme. It is permissible to consider the fact that a j petition was filed only two months late if the start of the ' proceeding will not be substantially delayed. Puaet Sound Power and Liaht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 985 (1982), citina, Duke Powerfg_,_ (Amendment to Materials License SNM - 1773 - l Transportation of Spent Fuel from Oconee Nuclear Station for l Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146,150 , (1979). If the lateness of a Petition to interven; is not egregiour. l and will not cause substantial delay to the parties, those ! considerations will outweigh the fact that the balance of the five factors required under 10 CFR @ 2.714(a)(1) tips slightly against the petitioner. Skaait/Hanford, suora, 16 NRC at 985. O MARCH 1987 PREHEARING HATTERS 20
<w
) 2.9.3.3.3 '~
The exclusion from a proceeding of persons or organizations who have slept on their rights does not offend any public policy favoring broad citizen involvement in nuclear licensing adjudications. Assuming that such a policy finds footing in Section 189a of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 5 2239(a), it must be viewed in conjunction with the equally important policy favoring the observance of estab-lished time limits. Lona Island Liahtina Co. (Shoreham Nuclear Powar Station, Unit 1), ALAB-743, 18 NRC 387, 396 n.37 (1983). 2.9.3.3.1 Time for Filing Intervention Petitions Petitions to intervene or requests for hearing must be filed not later than the time specified in the notice for hearing or as provided by the Commission, the presiding officer or the Licensing Board designated to rule on petitions and/or requests for hearing, or as provided in 10 CFR 6 2.102(d)(3) (with regard to antitrust matters); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-42,18 NRC 112, 116 (1983). A Licensing Board did not abuse its discretion in shortening the time to file contentions where there were many inter- /n V) venors. Houston Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574, 11 NRC 7, 13 (1980). 2.9.3.3.2 Sufficiency of Notice of Time Limits on Intervention Although the Appe ' Board has stated that it would leave open the question as to whether Federal Realster notice without more is adequate to put a potential tatervenor on notice for filing intervention petitions, Pennsylvania Power and Liaht Co. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-148, 6 AEC 642, 643 n.2 (1973), the Board tacitly assumed that such notice was sufficient in Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 & 2), ALAB-341, 4 NRC 95 (1976) (claims by petitioner that there was a " press blackout" and that he was unaware of Commission rules requiring timely intervention will not excuse untimely petition for leave to , intervene). 2.9.3.3.3 Consideration of Untimely Petitions to Intervene Section 10 CFR 2.714(a) provides that nontimely petitions to intervene or requests for hearing will not be considered absent a determination that the petition or request should be granted based upon a balancing of the following factors: (1) good cause, if any, for failure to file on time; O MRCH 1987 PREHEARING MATTERS 21
- _ _ _ _ . __ =_
l I
@ 2.9.3.3.3 (2) the availability of other means for protecting the petitioner's interests; (3) the extent to which petitioner's participation might reasonably assist in developing a sound record; j (4) the extent to which the petitioner's interest will be lq represented by existing parties; and 1
(5) the extent to which petitioner's participation will i broaden the issues or delay the proceeding. l I Puaet Sound Power and Licht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 984 (1982); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1429 (1982); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 331 n.3 (1983); Lono Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 390 n,3 (1983), citina,10 CFR S 2.714(a)(1); Washinaton Public Power Sucolv System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC ! 1167,1170 n.3 (1983); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-17, 19 NRC 878, 883 (1984); General Electric Co. (GETR Vallecitos), LBP-84-54, i 20 NRC 1637, 1643-1644 (1984); Boston Edison Co. (Pilgrim ) Nuclear Power Station), LBP-85-24, 22 NRC 97, 98 n.3 (1985), affirmed, ALAB-816, 22 NRC 461 (1985); Philadelphia Electric Co. (Limerick Generating Station, Unit 1) LBP-86-9, 23 NRC 273, 278 n.6 (1986). This consideration must be weighed against the petitioner's strong interest in the proceeding under 10 CFR 2.714(d). Skaait/Hanford, suora, 16 NRC at 984. In ruling on a petition for leave to intervene that is untimely, the Commission must consider, in addition to the factors set forth in 10 CFR s 2.714(a)(1), the following factors set forth in 10 CFR s 2.714(d): (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) The nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) The possible effect of any order which may be entered in the proceeding on the petitioner's interest. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 n.3 (1983). The burden of proof is on the petitioner. Thus, a person who file an untimely intervention petition must affirma-tively address the five lateness factors in his petition, regardless of whether any other parties in the proceeding MARCH 1987 PREHEARING MATTERS 22
I ( ) 9 2.9.3.3.3 v raise the tardiness issue. Even if the other parties waive the tardiness of the petition, a Board, on its own initiative, will review the petition and weigh the five lateness factors. Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 n.22 (1985). A late petitioner who fails to address the five lateness factors in his petition does not have a right to a second opportunity to make a substantial showing on the lateness factors. However, a Board, as a matter of discretion, may give a late petitioner such an opportunity. Pilarim, suora,. 22 NRC at 468. A late petitioner's obligation to affirmatively address the five lateness factors is not affected by the extent of the tardiness. However, the length of the delay, whether measured in days or years, may influence a Board's assessment of the lateness factors. Pilarim, suora, ALAB-816, 22 NRC at 468 n.27. Amendments to Section 2.714 make it clear that a showing of good cause for the untimeliness of a petition is only one factor to be considered and balanced. Priur to these
^ amendments, the " good cause" factor was given special (v) treatment, although a showing of good cause would not relieve a Licensing Board of its obligation to consider the other factors. Duke Power Co. (Perkins Nuclear Station, Units 1, 2
& 3), ALAB-431, 6 NRC 460 (1977); Florida Power & Liaht Co.
(St. Lucie Nuclear Power Plant, Unit '2), ALAB-420, 6 NRC 8, 22 (1977); fietroDolitan Edison Com (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612 (1977); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), LBP 4, 15 NRC 199 (1982); Arizone Public Service Co._ (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-Il78,16 NRC 2024, 2026 (1982). In addition, it has been held that even if a patitioner fails to establish good cause for the untimely petition, the other factors must be examined, Lorg J11and liahtino Co. (Jamesport Nuclear Pcwer Station, Units 1 and 2), ALAB-292, 2 NRC 631 (1975), although the burden of justifying intervention on the basis of the 9ther factors is considered to be greater when the petitioner fails to show good cause. Ruclear Fuel Services. Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NP.C 273 (1975); USERDA (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976); Viroinit Electric & Power Co. (North Anna Station, Units 1 & 2), ALAB-289, 1 NRC 395, 398 (1975); Philadelobia Electric Co. (Limerick Generating Station, Unit 1), LBP-85-9, 23 NRC 273, 279 (1985). ( Absent a showing of good cause for a very late filing, an intervention petitioner must make a " compelling showing" MARCH 1987 PREHEARING MATTERS 23
y l
@ 2.9.3.3.3 on the other four factors stated in 10 CFR 6 2.714(a) governing late interventiet. Missisgioni Power & Liaht Co.
(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,16 NRC l 1725, 1730 (1982), citina, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC j 881, 894 (1981), aff'd sub nom._ Fairfield United Action v. 4 Nuclear Reaulatory Commissio_n, 679 F.2d 261 (D.C. Cir.1982). ] See also Detroit Edison Co. (Enrico Fermi Atomic Power Plant, j Unit 2), ALAB-707, 16 NRC 1760, 1764 (1982), citina, Grand i l Gulf, .guora,16 NRC at 1730; Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 397 (1983); General Electric Co. (GETR Vallecitos), LBP- , 84-54, 20 NRC 1637, 1645 (1984). l i -1 A satisfactory explanation for failure to file on time does ) not automatically warrant the acceptance of a late-filed
- j intervention petition. The additional four factors specified i under 10 CFR @ 2.714(a) must also be considered. However, i where a late filing of an intervention petition has been !
satisfactorily explained, a much smaller demonstration with j regard to the other factors of 10 CFR s 2.714(a) is necessary ' than would otherwise be the case. Wisconsin Public Service Corpontion (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 83 (1978). The five factors listed in 10 CFR s 2.714(a) are to be considered in determining whether to allow late intervention. 1 Houston liahtina and Power Co. (Allens Creek Nuclear Generat- ) ing Station, Unit 1), ALAB-671, 15 NRC 508, 509 (1982); < Cincinnati Gas and Electric Co. (Ziminer Nuclear Power Station, j Unit 1), LBP-82-54, 16 NRC 210, 213-214 (1982). Newly ' acquired standing by moving to the vicinity of a plant is not alone enough to justify belated intervention. Nor does being articulate show a contribution can be made in developing the record. Other parties having the same interest weigh against allowing late intervention. Houston Lichtina and Power C L ( (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 241 (1980). 1 1 The first factor of those specified in 10 CFR s 2.714(a) is whether there exists " good cause, if any, for the failure to file on time." Cincinncti Gas and Electric Comcany (William 11. Zmmer Nuclear Power Station), ALAB-595, 11 NP.C 860, 862 (1980). In considering the
" good cause" factor, the Appeal Board pointed out that a strong excuse for lateness will attenuate the showing l necessary on the other factors of 10 CFR s 2.714. It I added th:tt the 1970 amendment of the languge of s 2.714, far from altering this substantive principle, regarding l excuse for 1 Wness, mere'y codified it. Puaet SourLd !
Pqwer & Licht Lamoany (SkbJit Nuclear Power Project, j Units 1 and 2), ALAB-523, 9 NRC 58, 63 (1979). See also MARCH 1987 PREHEARING dATTERS 24
-- - - l
L (3 9 2.9.3.3.3 il 1 N/ Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, i Unit No. 2), ALAB-420, 6 NRC 8, 22 (1977), affirmed, CLI 12, 7 NRC 939 (1978). The burden of showing good cause is on the late petitioner. D_ql_rgit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1432 (1982). l The Appeal Board has held that whether there is " good cause" , fw a late filing depends entirely upon the substantiality of the reasons assigned for not having filed at an earlier date. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 887 n.5 (1981). Although a concrete definition as to what constitutes " good cause" has not been established, certain excuses for delay have been held to be insufficient to justify late filing. For example, in Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), LBP-74-63, 8 AEC 330 (1974), aff'd, ALAB-238, 8 AEC 656 (1974), it was held that neither the fact that the corporate citizens' group seeking to intervene was not chartered prior to the cutoff date for filing, nor the fact that the applicant changed its application by dropping one of the two units it intended to build, gave good cause for late Similarly, claims by a petitioner that there was a (3 (
'j filing.
" press blackout" and that he was unaware of the Commission's rules requiring timely intervention will not excuse an untimely petition for leave to intervene. Tennessee Valley Authqti_ty (Browns Ferry Nuclear Plant, Units 1 & 2), ALAB-341, 4 NRC 95 (1976), nor will failure to read the Federal Reaister. South Carolina Electric and Gas Co. (Virgil C.
Summer Nuclear Station, Unit 1), LBP-81-ll, 13 NRC 420, 423 (1981), citina, New Fnaland Power and Liaht Co. (NEP Units 1 and 2), LBP-78-18, 7 NRC 932, 933-934 (1978). The showing of good cause is required even though a petitioner seeks to substitute itself for another party. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 796 (1977). Licensing Boards and Appeal Boards have both considered various excuses to determine whether they constitute
" good cause." Newly-acquired organizational existence does not constitute good cause for delay in seeking intervention. Carolina Power and Liaht Company (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 (1979), cited in Cincinnati Gas and Electric CA. (William H. Zimmer Nuclear Station), LBP-80-14,11 NRC 570 (1980) and South Cardina Electric and Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), LBP-81-ll, 13 NRC 420, 423 (1981); and Kansas Gas and Electric Co. [, (Wolf Creek Generating Station, Unit 1), LBP-84-17,19
\ NRC 878, 887 (1984). Nor does preoccupation with other MARCH 1987 PREHEARING MATTERS 25
9 2.9.3.3.3 matters afford a basis for excusing a nontimely petition to intervene. Poor judgment or impruder.ce is not good cause for late filing. Puaet Sound Power & Liaht Co. (Skagit Nuclear Power Project, Units 1 and 2), LBPe79-16, 9 NRC 711, 714 (1979). The Appeal Board did not accept as an excuse for late intervention the claim that petitioner, a college organiza-tion, could not meet an August petition deadline because most l of its members were away from school during the summer and hence unaware of developments. in the case. Such a considera-tion does not relieve an organization from making the necessary arrangements to insure that its interest is 1 protected in its members' absence. On the cther hand, new regulatory developments and the availability of new informa-tion may constitute good cause for delay in seeking interven- i tion. Duke Power Company (Amendment to Materials License SNM- l 1773 -- Transportation of Spent Fuel from Oconee Nuclear l Station for Storage at McGuire Nuclear Station), ALAB-528, 9 i NRC 146, 148-149 (1979). See also Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14,11 NRC 570, 572-573 (1980). The Licensing Board will not accept a petitioner's claim of excuse for late intervention where the petitioner failed to uncover and apply publicly available information in a timely manner. Kansas Gas and Electric Co. (Wolf Creek Cenerating Station, Unit 1), LSP-84-17, 19 NRC 878, 886 (1984), citina, Lona Island Liahtina Co., (Shoreham Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 117, aff'd, ALAB-743, 18 NRC 337 (1983). Newly arising information has long been recognized as providing " good cause" for acceptance of a late contention. Consumers Power Co. (Midland Plant, Units 1 and E), LBP-82-63, 16 NRC 571, 577 (1982), citina, Indiana and Michiaan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75. 5 AEC 13, 14 (1972); Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-80-14,11 NRC 570, 574 (1980), appeal djimissed, ALAB-595,11 NRC 860 (1980). Before admitting a contention based en new information, factors must be balanced such as the intervenor's ability to contribute to the record on the contention and the likelihood and effects of delay should the contention be admitted. However, in balancing those factors, the same weight given to each of them is not required. Consumers Power Co. (Midland Plant, Units 1 and 2), LBr-82-63,16 NRC 571, 577 (1982), citina, South Carolina Electric and Gas Co. (Virgil C. Sumer Nuclear Station, Vait 1), ALAB-642, 13 NRC 881, 895 (1981). O MARCH 1987 PREHEARING MATTERS 26
7 s 2.9.3.3.3 (( } Confusing and misleading letters from the Staff to a pro-spective oro se petitioner for intervention, and failure of-the Staff to respond in a timely fashion to certain communica-tions from such a petitioner, constitute a strong showing of good cause for an untimely petition. Wisconsin Public Service Corporation (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 81-82 (1978). And where petitioner relied to its detriment on Staff's representations that no action would be immediately taken on licensee's application for renewal, elementary fairness requires that the action of the Staff could be asserted as an estoppel on the issue of timeliness of petition to intervene, and the petition must be considered even after the license has been-issued. Armed Forces Radiobioloav Research Institute (Cobalt-60 Storage Facility), LBP-82-24, 15 NRC 652, 658 (1982), rev'd on other arounds, A1.AB-682, 16 NRC 150 (1982). A petitioner's claim that it was lulled into inaction because it relied upon the State, which later withdrew, to represent its interests does not constitute good cause for an untimely petition. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 796 (1977). A petitioner who has relied upon a State participating pursuant to 10 CFR n G 2.715(c) to represent her interests in a proceeding cannot rely on her dissatisfaction with the State's performance as a ('v) valid excuse for a late-filed intervention petition where no claim is made that the State undertook to represent her interests specifically, as opposed to the public interest generally. Duke Power Comoany (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-440, 6 NRC 642 (1977). See also South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-ll, 13 NRC 420, 423 (1981). Nor will an explanation that full-time domestic and other responsi-bilities was the reason for filing an intervention petition almost three years late suffice. Cherokee, suora. Just as a petitioner may not rely upon interests being represented by another party and then justify an untimely petition tc, intervene on the others' withdrawal, so a petitioner may not rely on the pendency of another proceeding to protect its interests and ther, justify a late petition on that reliance when the other petition fails to represent those interests. A clain that petitioner believed that its concerns would be addressed in another proceeding will not be considered good cause. Consolidated Edison Co. (Indian Point Station, Unit No. 2), LBP-82-1, 15 NRC 37, 39-40 (1982); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-1178, 16 NRC 2024, 2027 (1982). It must be established that petitioners were furnished A) ( v MARCH 1987 PREHEARING MATTERS 27 i
9 2.9.3.3.3 erroneous information on matters of basic fact and that it was reliance upon that information that prompted their own inaction. Palo Verde, suora, 16 NRC at 2027-2028. Where no good excuse in tendered for the tardiness, the petitioner's demonstration on the other factors must be particularly strong. Duke Power Comoany (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-431, 6 NRC 460, 462 (1977) and cases there cited. See also Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBF-84-17,19 NRC 878, 887 (1984); Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 577 (1982), citina, Nuclear Fuel Services. Inc. and New York State Atomic and Space Development Authority (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). Absent a showing of good cause for late filing, an intervention petitioner must make a
" compelling showing" on the other four factors stated in 10 CFR s 2.714(a) governing late intervention. Mississioni Power
& Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2),
ALAB-704, 16 NRC 1725, 1730 (1982), citina, South Caroling Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 894 (1981), aff'd sub nom. Fairfield United Action v. Nuclear Reaulatory Commission, 679 F.2d 261 (D.C. Cir. 1982). In determining how compelling a showing a petitioner must make on the other four factors, a Licensing Board need not attach the same significance to a delay of months as to a delay involving a number of years. The significance of the tardiness, whether measured in months or years, will generally depend on the posture of the proceeding at the time the petition surfaces. Washinaton Public ~ Power Sucoly System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167,1173 (1983), citina, Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 398-399 (1983). i With regard to the second factor - other means to protect petitioner's interest - the question is not whether other parties will adequately protect the interest of the peti-tioner, but whether there are other available means whereby ! the petitioner can itself protect its interest. Lona Island Liahtina Co. (Jamesport Nuclear Power Station, Units 1 & 2), l ALAB-292, 2 NRC 631 (1975). I i The second factor in 10 CFR S 2.714(a) points away from ; allowing late intervention if the interest which the peti- ' tioner asserts can be protected by some means other than litigation. Detroit Edison Co. (Enrico Fermi Atomic Power ! Plant, Unit 2), LBP-82-96,16 NRC 1408,1433 (1982). l MARCH 1987 PREHEARING MATTERS 28 l l
l
~
i 6 2.9.3.3.3 l l l The suggestion that an organization could adequately protect its interest by submitting a limited appearance statement gives insufficient regard to the value of participational rights enjoyed by parties - including the entitlement to present evidence and to engage in cross-examination. Similarly, assertions that the organization might adequately protect its interest by making witnesses available to a successful petitioner or by transmitting information in its possession to appropriate State and local officials are without merit. Duke Power Company (Amendment to Materials License SNM 1773 -- Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150 n.7 (1979). Until the parties to a proceeding that oppose a late interven-tion petition suggest another forum that appears to promise a full hearing on the claims petitioner seeks to raise, a petitioner need not identify and particularize other remedies as inadequate. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760,1767 n.6 (1982). A petition under 10 CFR 9 2.206 for a show cause proceeding is not an adequate alternative means of protecting a late petitioner's interests. The Section 2.206 remedy cannot
', ,i substitute for the petitioner's participation in an ad-V judicatory proceeding concerned with the grant or denial ah initio of an application for an operating license. Washinaton Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747, 16 NRC 1167, 1175-1176 (1983). Participation of the NRC Staff in a licensing proceeding is not equivalent to participation by a private intervenor. WPPSS, j_d_._ By analogy, the availability of nonadjudicatory Staff review outside the hearing process generally does not constitute adequate protection of a private party's rights when considering factor two under 10 CFR @ 2.714(a). Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 384 n.108 (1985). But see Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), I ALAB-828, 23 NRC 13, 21-22 (1986). As to the third factor with regard to " assistance in developing the record," a late petitioner placing heavy reliance on this factor and claiming that it has substan-tial technical expertise in this regard should present a bill of particulars in support of such a claim. Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-476, 7 NRC 759, 764 (1978). At the same time, it is not necessary that a petitioner have some specialized educa-A tion, relevant experience or ability to effer qualified experts for a favorable finding on this factor to be (a) MARCH 1987 PREHEARING MATTERS 29
-l l ..
l 9 2.9.3.3.3 made. South Carolina Electric & Gas Co. (Virgil C. Summer i Nuclear Station,. Unit 1), LBP-78-6, 7 NRC 209, 212-213 (1978). When an intervention petitioner addresses the 10 CFR S 2.714(a)(3) criterion.for late intervention requiring a showing of how its participation may reasonably be expected , to assist in developing a sound record, it should-set out with j as much particularity as possible the precise issues it plans 4 to cover, identify its pro!,pective witnesses, and summarize l their proposed testimony. See aenerally South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 894 (1981), aff'd sub nom. ) Fairfield United Action v. Nuclear Reaulatory Commission, 679 ! F.2d 261 (D.C. Cir. 1982); Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-476, 7 NRC 759, 764 ' (1978); Lona Island Liahting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 399 (1983), citina, Mississioni Power and liaht Co. (Grand Gulf Nuclear Station, i Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982); Washinaton i Public Power Sunoly System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1177 (1983); Washinaton Public Power Supolv System (WPPSS Nuclear Project No. 3), ALAB-767,19 NRC 984, 985 (1984); General Electric Co. (GETR Vallecitos), LBP-84-54, 20 NRC 1637, 1644 (1984). Vague assertions regarding petitioner's ability or resources are insufficient. Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982); Detroit Edison Co m(Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1766 (1982), citina, Grand Gulf, suora,16 NRC at 1730. It is the petitioner's ability to contribute sound evidence rather than asserted legal skills that is of significance in determining whether the petitioner would contribute to the development of a sound record. Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-17,19 NRC 878, 888 (1984), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508, 513 n.14 (1982). The ability to contribute to the development of a sound record is an even more important factor in cases where the grant or denial of the petition will also decide whether there will be any adjudicatory hearing. There is no reason to grant an inexcusably late intervention petition unless there is cause to believe that the pe-titioner not only proposes to raise at least one sub-stantial safety or environmental issue, but is also able to make a worthwhile contribution on it. Washincton MARCH 1987 PREHEARING MATTERS 30
l l
'[9 - 6 2.9.3.3.3-Public Power Suoolv Systs (WPPSS Nuclear' Project No. 3),-
LALAB-747, 18 NRC 1167, 1180-1181 (1983). See also Tennessee Valley Authority (Watts Bar Nuclear Plant, Units -1 and 2),
'ALAB-413, 5 NRC 1418, 1422 (1977).
~With regard to the fourth' factor of 10 CFR 9 2.714(a),.the
- extent to which petitioner's interest will be represented by existing parties, the fact that a successful petitioner has
. advanced a contention concededly akin to that of a late-petitioner does not necessarily mean that the successful petitioner is both willing and able to represent the late petitioner's interest. Duke Power Company (Amendment to Materials License SNM-1773 - Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150 (1979).
The. Licensing Board in Florida Power and Liaht- Company (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21, 10 NRC 183, 195 (1979) has expressed the view that NRC practice has failed to provide a clearcut answer to the question of whether the fourth factor, the extent.to which the petitioner's interest will be represented by existing parties, is applicable when there are no intervening parties and no petitioners other than the latecomer, and a hearing will not f' be held if the late petitioner is denied leave to intervene. The Licensing Board reviewed past Licensing Board decisions on this question: (1) In St. Lucie and Turkey Point the Licensing Board decided that the fourth factor was not directly applicable, noting that without the petitioner's admission there would be no other party to protect petitioner's interest. Florida Power and Liaht Co. (St. Lucie Plant, Units 1 and 2 and Turkey Point, Units 3 and 4), LBP-77-23, 5 NRC 789, 800 (1977). (2) In Summer the Licensing Board acknowledged uncer-tainty as to the applicability of factor four, but indicated that if the factor were applicable it would be given no weight because of the particular circumstances of that case. South Carolina Elec-tric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-78-6, 7 NRC 209, 213-214 (1978). (3) In Kewaunee, the Board concluded that petitioners' interest would not be represented absent a hearing and decided that the fourth factor weighed in favor of admitting them as interveners. Wisconsin Public Service Coro. (Kewaunee Nuclear Power Plant), LBP-78-24, 8 NRC 78, 84 (1978). v MARCH 1987 PREHERING MATTERS 31
$ 2.9.3.3.3 The Licensing Board ultimately ruled that the Commission intended that all five factors of 10 CFR s 2.714(a) should be balanced in every case involving an untimely petition.
Florida Power and Liaht Company (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21, 10 NRC 183, 195 (1979). The Board also ruled that in the circumstances where denial of a late petition would result in no hearing and no parties to protect the petitioner's interest, the question, "To what extent will Petitioners' interest be represented by existing parties?" must be answered, "None." The fourth factor therefore, was held to weigh in favor of the late petitioners. _lh In weighing the fourth factor, a board will not assume that the interests of a late petitioner will be adequately represented by the NRC Staff. The general public interest, as interpreted by the Staff, may often conflict with a late petitioner's private interests or perceptions of the public j interest. Washinaton Public Power Supolv System (WPPSS J Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1174-1175 n.22 I (1983). See also Cleveland Electric ' Illuminating Co. (Perry Nuclear Power Plant, Units ! and 2), LBP-83-80,18 NRC 1404, ) 1407-1408 (1983); Philadelphia Electric Co. (Limerick i Generating Station, Unit 1), LBP-86-9, 23 NRC 273, 279 (1986). Contra Consolidated Edison Co. of New York (Indian Point, Unit i 2), LBP-82-1, 15 NRC 37, 41 (1982). In balancing the factors in 10 CFR s 2.714(a), the Licensing ' Board may take into account the petitioner's governmental nature as it affects the extent to which petitioner's interest will be represented by existing parties (fourth factor of 10 CFR s 2.714(a)), although the petitioner's governmental status in and of itself will not excuse untimely petitians to l intervene. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-339, 4 NRC 20 (1976). With respect to the fifth factor, the extent to which a late petitioner's participation would delay a proceeding, the Appeal Board in Eng.et Sound Power and liaht Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-559,10 NRC 162, 172 (1979), assessed this factor, as of the time of the Appeal Board's hearing, not as of the time the petitioners filed their petition. A person who attempts to intervene three and a half years after the petition deadline has no right to assume that his intervention will go unchallenged; rather, he has every right to assume that objections will be made and that the appellate process might be invoked. Skaait, suora, 10 NRC at 172-173. The fifth factor includes only that delay which can be attributed directly to the tardiness of the petition. Jamesport, supra, ALAB-292, 2 NRC at 631; South Carolina MARCH 1987 PREHEARING MATTERS 32 L--_---._--
1 l l
.3 l' , ,
( ') s 2.9.3.3.3 Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-81-II, 13 NRC 420, 425 (1981). l The fifth and final factor of 10 CFR 5 2.714(a)(1), potential for delay, is also of immense importance in the overall balancing process. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387, 402 (1983). While this factor is particularly significant, it is not dispositive. USERDA (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976). In considering the factor of i delay, the magnitude of threatened delay must be weighed since not every delay is intolerable. Public Service Electric & Gas ' Co. (Hope Creek Generating Station, Units 1 & 2), LBP-77-9, 5 NRC 474 (1977). In addition, in deciding whether petitioners' participation would broaden the issues or delay the proceed-ing, it is proper for the Licensing Board to consider that the petitioners agreed to allow issuance of the construction permit before their antitrust contentions were heard, thereby eliminating any need to hold up plant construction pending resolution of those contentions. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8, 23
,3
, (1977). ,
t ) ?
'd An untimely intervention petition need not introduce an entirely new subject matter in order to " broaden the issues" '
for the purposes of 10 CFR 2.714(a); expansion of issues already admitted to the proceeding also qualifies. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 891 (1981). i i The mere fact that a late petitioner will not cause addi- i tional delay or a broadening of the issue does not mean that an untimely petition should necessarily be granted. Gulf i States Utilities Co. (River Bend Station, Units 1 & 2), ALAB- ; 444, 6 NRC 760, 798 (1977). However, from the standpoint of precluding intervention, the delay factor is extremely important and the later the petition to intervene, the more likely it is that the petitioner's participation will result in delay. Detroit Edison Co. (Greenwood Energy Center, Units , 2 & 3), ALAB-476, 7 NRC 759, 762 (1978). The question is i whether, by filing late, the petitioner has occasioned a . potential for delay in the completion of the proceeding that 1 would not have been present had the filing been timely. Washinaton Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1180 (1983). In the instance of a very late petition, the strength or f3 weakness of the tendered justification may thus prove Y MARCH 1987 PREHEARING MATTERS 33
9 2.9.3.3.3 crucial. The greater the tardiness, the greater the likeli- -l hood that the addition of a new party will' delay the proceed- 1 ing -- n, by occasioning the relitigation of issues already ! tried. Although the delay factor may not be conclusive, it is 1 an especially weighty one. Ero.iect Manaaement Corporation j (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 394-95 (1976); Puaet Sound Power & Liaht Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-552,10 NRC 1, 5 (1979). The permissive grant of intervention petitions inexcusably i filed long after the prescribed deadline would pose a clear i and unacceptable threat to the integrity of the entire adjudicatory process. Although Section 2.714(c) of the Rules of Practice may not shut the door firmly against unjustifiably l late petitions, it does reflect the expectation that,. absent i demonstrable good cause for the late filing, an individual so interested in the outcome of a particular proceeding will act to protect his interest within the established time limits. Slagit, supra, 10 NRC at 172-173. A late intervenor may be required to take the proceeding as it l finds it. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 402 (1983), citina, Nuclear Fuel Services. Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 276 (1975). Licensing Boards have very i broad discretion in their approach to the balancing process required under 10 CFR S 2.714(a). Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976). Given this wide latitude with regard to untimely petitions to intervene, a Licensing Board has the discretion to permit intervention, even though an acceptable excuse for the untimely filing is not forthcoming, if other considera-a tions warrant its doing so. E]orida Power & Liaht Co. (St. ; Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8, 22 (1977). A petitioner whose late-filed petition to intervene has met the five-part test of 10 CFR @ 2.714(a)(1) need not meet any further late-filing qualifications to have its contentions admitted. It is not to be treated differently than a i petitioner whose petition to intervene was timely filed. t Washinaton Public Power Sucoly System (WPPSS Nuclear Project No. 3), LBP-84-17A, 19 NRC 1011, 1015 (1984). In evaluating intervention petitions to determine whether the requisite specificity exists, whether there has been an adequate delineation of the basis for the contentions, and whether the issues sought to be raised are cognizable in an individual licensing proceeding, Licensing Boards will not appraise the merits of any of the assertions MARCH 1987 PREHEARING MATTERS 34
i 1 p i : d 9 2.9.3.3.4 contained in the petition. But when considering untimely petitions, Licensing Boards are required to assess whether the l petitioner has made a substantial showing of good cause for l L failure to file on time. In doing so, Boards must necessarily ; consider the merits of claims going to that issue. Florida l Power & Licht Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC l 939, 948-949 (1978). l I Non-parties, participating under 10 CFR S 2.715(c), need not comply with the requirements of 10 CFR S 2.714 that mandate that interveners either file their contentions in a timely l fashion or show cause for their late intervention. Cleveland 1 Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 l and 2), LBP-81-35, 14 NRC 682, 688-(1981). l The key policy consideration for barring late interveners is one of fairness, yA, "the public interest in the timely and orderly conduct of our proceedings." Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 648-649 (1979), citina, F_qclear Fuel Services. Inc., (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975). A Licensing Board has no latitude to admit a new party, i.e., (V j an " eleventh hour" intervenor, to a proceeding as the hearing date approaches in circumstances where: (1) the extreme tardiness in seeking intervention is unjustified; (2) the certain or likely consequence would be prejudice to other parties a.s well as delaying the progress of the proceeding, particularly attributable to the broadening of issues; and (3) the substantiality of the contribution to the development of the record which might be made by that party is problematic. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-643,13 NRC 898, 900 G 981). 2.9.3.3.4 Appeals from Rulings on Late Intervention Two considerations play koy roles in Appeal Board delib- : erations on appeals from rulings on untimely intervention. The first is the Commission's admonition in Nuclear Fuel l Services. Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 NRC 273, 275 (1975), thtt 10 CFR s 2.714(a) was purposely drafted with the idea of "giving the Licensing Boards broad discretion in the circumstances of individual cases." Washinaton Public Power Sucolv System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1171 (1983). See also Lo_ng Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), , ALAB-743, 18 NRC 387, 395-396 (1983); Lona Island Liahtina Co. l ,Q (Shoreham Nuclear Power Station, Unit 1), ALAB-769,19 (/ ' MARCH 1987 PREHEARING MATTERS 35 L __
9 2.9.3.3.4 NRC 995, 1000 n.13 (1984). Consequently, an Appeal Board is free to reverse a decision granting a tardy intervention petition only where it can fairly be said that the Licensing i Board's action was an abuse of the discretion conferred by ! Section 2.714(a). Mississiooi Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 16 NRC 1725, 1730 (1982); Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC.98 (1976). The second consideration flows from the principle that the propriety of the Board's action must be measured against the backdrop of the record made by the parties before it. Accordingly, on review the Appeal Board must generally credit the facts recounted in the papers supporting the petition to intervene to the extent that they deal with the merits of the issues. Insofar as the facts relate to the excuse for untimely filing, where they are not controverted by opposing affidavits they must be taken as true. Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8,13 (1977). In view of all of this, the chances of overturning a Licensing Board's finding that intervention, although late, would be valuable are slight. See, e.a., Pacific Gas & Electric Co. (Diablo Canyon Nuclear Plant, Units 1 & 2), ALAB-223, 8 AEC 241 (1974). In a decision vacating a Licensing Board's grant of late intervention because the grant was based on improper cri-teria, the Appeal Board refused to examine whether the petitioner had met the regulatory requirements for inter-vention (i.e., 10 CFR @ 2.714). Puaet Sound _ Power & Liaht Comoany (Skagit Nuclear Power Project, Units 1 and 2), ALAB-523, 9 NRC 58, 63-64 (1979), octition for review denied, Puatt. Sound Power & Liaht Co. (Skagit Nuclear Project, Units 1 and i 2), unreported, (January 16,1980). I Appeal Boards may closely scrutinize factual and legal components of the analysis underlying the Licensing Board'r, conclusion in reviewing Board decisions on untimely interven-tion petitions. South Carolina Electric and Gas Co. (Virgil i C. Summer Nuclear Plant, Unit 1), ALAB-642,13 NRC 881, 885 (1981). It is for the Licensing Boards to make the initial as-sessment of how late intervention petitions fare in light of the intervention criteria. Skaait, suora, 9 NRC at 63. An Appeal Board will not overturn a Licensing Board's denial of a late intervention petition under the criteria specified in 10 CFR s 2.714(a) unless the Board has abused its discretion. Detroit Edison Co. (Enrico . Fermi Atomic Power Plant, Unit 2), ALAB-707,16 NRC 1760, l 1763, 1764 (1982). It is not sufficient for a party to MARCH 1987 PREHEARING MATTERS 36 ;
;y.
.g{ U g ::{ .,
,l fN l'2.9.3.5-
~
establish that the Licensing Board might. justifiably have L concluded;that the five lateness factors listed.in 10 CFR 6 2.714(a)(1) favored the' denial of-the untimely intervention
, petition. An Appeal Board mu'st be persuaded that a reasonable mind could reach no other result. Washinaton Public-Power Suoolv System (WPPSS Nuclear Project No.- 3), ALAB-747,- 18 NRC -
1167,1171.(1983). K '2.9.3.3.5 Mdotness.of. Petitions to Intervene. Where the Commission was in the process of ruling on an untimely petition to intervene, when the applicant moved to amend its application and conclude: the proceeding,- the petition-to' intervene was dismissed as moot.. Puaet Sound Power and Licht' Company (Skagit Nuclear Power Project,- Units 1
'and 2), CLI-80-34, 12 NRC 407, 408 (1980).
L 2.9.3.4 ' Amendment of Petition Expanding Scope'of Intervention In order to expand the scope' of a provi_ously. filed petition to intervene, an intervenor carries the burden of persuading the Licensing Board that the information upon which the expansion is based: (a) was objectively unavailable at the time the
~
L original petition was filed, and (b) had it been available, 7~N the petition's scope would have been broader. Louisiana Power
& Licht Co. (Waterford Steam Electric Station, Unit 3), LBP-73-31, 6 AEC 717, acoeal dismissed as interlocutory, ALAB-168,.
I L 6 AEC 1155 (1973). 2.9.3.5 Withdrawal of Petition to Intervene Voluntary withdrawal of a petition to intervene is without prejudice to reinstate the petition, although reinstatement can only be done on a showing of good cause. Mississiop_i-Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), LBP-73-41, 6 AEC 1057 (1973). Where only a single intervenor is party to an operating license proceeding, its withdrawal serves to bring the proceeding to an end. Where there is more than one intervenor in a case, the withdrawal of one does not terminate the proceeding However, according to NRC procedure, it does serve to eliminste the withdrawing party's contentions from litigation. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 382 (1985). See also Pro.iect Manaae-ment Coro. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 391-92 (1976). Acceptance of contentions at the threshold stage of a licensing proceeding does not validate them as cognizable issues for litigation independent of their sponsoring intervenor. Texas Utili-f ties Generatina Co. (Comanche Peak Steam Electric Station, j MARCll 1987 PREHEARING MATTERS 37 l i
)
i 9 2.9.3.6 Units 1 and 2), CLI-81-36, 14 NRC 1111, 1113-14 (1981); South q Texas, supra, 21 NRC at 383. j Safety or environmental matters which may be left as outstand-ing issues by a withdrawing intervenor may be raised by a l Board sua soonte or be subject to nonadjudicatory resolution j by the NRC Staff. South Texas, suora, 21 NRC at 383 n.100. < igg Consolidated Edison Co. of New York (Indian Point, Units i 1, 2, and 3), ALAB-319, 3 NRC 188, 189-90 (1976). l l The test that should be applied to determine whether one ) intervenor may be permitted to adopt contentions that no i longer have a sponsor when the sponsoring intervenor with- ; draws from the proceeding, is the five-factor test ordinarily { used to determine whether to grant a nontimely recuest for 1 intervention, or to permit the introduction of adcitional i contentions by an existing intervenor after the filing { date. South Texas, suora, 21 NRC at 381-82. Egg 10 CFR ' 55 2.714(a)(1),(b). For a detailed discussion of the five-factor, test, Igg Sections 2.9.3.3.3 and 2.9.5.5. [ 2.9.3.6 Intervention in Antitrust Proceedings In addition to meeting the requirements of 10 CFR 6 2.714, a , petitioner seeking to intervene in an antitrust proceeding ! must: (1) describe the situation allegedly inconsistent with the antitrust laws which is the basis for intervention; (2) describe how that situation conflicts with the policies underlying the Sherman, Clayton or Federal Trade Commission Acts; (3) describe how that situation would be created or main-tained by activities under the proposed license; (4) identify the relief sought; and (5) explain why the relief sought fails to be satisfied by license conditions proposed by the Department of Justice. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 32 (1981) (and cases cited therein). Note that for antitrust intervention, Catawba implies that the interest of a ratepayer or consumer of electricity may be within the zone of interests protected by Section 105 of the Atomic Energy Act. The petitioner, however, must still demonstrate that an injury to its interests O MARCH 1987 PREHEARING MATTERS 38
----mm_._____m_ _ _
/ 9 2.9.3.6
)-
would be the proximate result of anticompetitive activities by the applicant or licensee and such injury must be more than remote and tenuous. .Ld_,. at 13 NRC 30-32. The Commission's regulations make clear that an antitrust intervention petition: (1) must first describe a situation inconsistent with the antitrust laws; (2) would be deficient if it consists of a description of a situation inconsistent with the antitrust laws - however well pleaded - accompanied by a mere paraphrase of the statutory language alleging that the situation described therein would be created or maintained by the activities under the. license; and (3) must identify the specific relief sought and whether, how and the extent to which the request fails to be satisfied by the license con-ditions proposed by the Attorney General. The most critical requirement of an antitrust intervention petition is an explanation of how the activities under the license would create or maintain an anticompetitive situation. Florida Power and liaht Co. (St. Lucie Plant, Unit No. 2), ALAB-665, 15 NRC 22, 29 (1982), citina, Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-279,1 NRC 559, 574-575 (1975) and Louisiana Power and Liaht Co. (Waterford Steam Electric Generating Station, Unit 3), CLI-73-25, 6 AEC 619, 621 (1973).
;q b When neither the Attorney General nor the NRC Staff has discerned antitrust problems warranting review under Section 105c, potential antitrust problems must be shown with reasonable clarity to justify granting a petition that would lead to protracted antitrust litigation involving a pro se petitioner. Detroit Edison Co. (Enrico Fermi Atomic Plant, Unit 2), LBP-78-13, 7 NRC 583, 595 (1978).
Although Section 105 of the Atomic Energy Act encourages petitioners to voice their antitrust claims early in the licensing process, reasonable late requests for antitrust review are not precluded so long as they are made concurrent with licensing. Licensing Boards must have discretion to consider individual claims in a way which does justice to all of the policies which underlie Section 105c and the strength of particular claims justifying late intervention. Florjda l Power & Licht Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). l Late requests for antitrust review hearings may be enter-tained in the period between the filing of an application i for a construction permit -- the time when the advice of the Attorney General is sought -- and its issuance. However, as the time for issuance of the construction
,Q permit draws closer, Licensing Boards should scrutinize
() more closely and carefully the petitioner's claims of MARCH 1987 PREHEARING MATTERS 39
e 5 2.9.4 G! J good cause. Florida Power & Licht Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). The criteria of 10 CFR l 9 2.714 for late petitioners are as appropriate for evaluation of late antitrust )etitions as in health, safety and environ- ! mental licensing, )ut Section 2.714 criteria should be more stringently ap)1ied to late antitrust petitions, particularly in assessing tie good cause factor, 14 Where an antitrust 1 petition is so late that relief will divert from'the licensee ! needed and difficult-to-replace power, the Licensing Board may shape any relief granted to meet this problem. JL . Where a late petition for intervention in an antitrust . proceeding is involved, the special. factors set forth within { 10 CFR 9 2.714(a)(1) must be balanced and applied before i petitions may be granted; the test becomes increasingly j vigorous as time passes. Florida P6wer and liaht Co. (St. Lucie Plant, Unit 2), LBP-81-28,14 NRC 333, 338, 342 (1981). q 2.9.4 Interest and Standing for Intervention j Assertions of broad public interest in (a) regulatory matters, (b) the administrative process, and (c) the development of j economical energy resources do not establish the particular- , ized interest necessary for participation by an individual or I group in NRC adjudicatory processes. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 332 (1983). Economic interest as a ratepayer does not confer standing in NRC licensing proceedings. Metropolitan Edison Co, (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 332 n.4 (1983); Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98, affirmed on other arounds, ALAB-816, 22 NitC 461 (1985). In Commission practice, a " generalized grievance" shared in substantially equal measure by all or a large class of citizens will not result in a distinct and palpable harm sufficient to support standing. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 333 (1983), citina, Transnuclear Inc., CLI-77-24, 6 NRC 525, 531 (1977); Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), LBP-87-2, 25 NRC 32, 34-35 (1987). Both the Atomic Energy Act of 1954, as amended, and the Commission's regulations permit intervention only by a
" person whose interest may be affected." The term "per-son" in this context includes corporate environmental >
groups which may represent members of the group provided that such members have an interest which will be affected. Public Service Co. of Indiana (Marble Hill Nuclear JUNE 1987 PREHEARING MATTERS 40
j l
;q 9 2.9.4 Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328 (1976).
Standing to intervene as a matter of right does not hinge upon
.a petitioner's potential cor.tribution to' the decisionmaking
. process. . Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2),.ALAB-342, 4 NRC 98 (1976). Neverthe-
-less,..a petitioner's potential contribution has a definite .
bearing on " discretionary intervention." See Section 2.9.4.2. infra. In Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-333, 3 NRC'804 (1976), the Appeal-Board certified the following. questions to the Commission:
'(1) Should standing in NRC proceedings be governed by
" judicial" standards?
'(2) If no "right" to intervene. exists under whatever standing rules are found to be applicable, what degree of discretion exists in a Board to admit a petitioner anyway?
The Commission's response to the certified question is contained in Portland General Electric Co2 (Pebble Springs
>( Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976).
Therein, the Commission-ruled that judicial concepts of standing should be applied by adjudicatory boards in determin-ing whether a petitioner is entitled to intervene as of right under Section 189 of the' Atomic Energy Act. As to the second question referred by the Appeal Board, the Commission held that Licensing Boards may, as a matter of discretion, grant intervention in domestic licensing cases to petitioners who are not entitled to intervene as of right under judicial standing doctrines but who may, nevertheless, make some contribution to the proceedina. Standing to intervene, unlike the factual merits of con-tentions, may appropriately be the subject of an evidentiary inquiry before intervention is granted. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275, 277 n.1 (1978).
"There is no question that, in an operating license pro-ceeding, the question of a potential intervenor's standing is a significant one. For if no petitioner for intervention can satisfactorily demonstrate standing, it is likely that no hearing will be held." Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 582 (1978). 4 MARCH 1987 PREHEARING MATTERS 41 l
L 9 2.9.4.1 2.9.4.1 Judicial Standing to Intervene The Commission h'as held that contemporaneous judicial concepts should be used to determine whether a petitioner has standing to intervene. Niaaara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), LBP-83-45,18 NRC 213, 215 (1983), citiria, Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610'(1976). Judicial concepts of standing will be applied in determining whether a petitioner has sufficient interest in a proceeding to be entitled to intervene as a matter of right under Section 189 of the Atomic Energy Act of 1954. Metropo'iitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 332 (1983), citina, Portland General Electric Co. (Pebble l Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 ( (1976). I l Judicial concepts of standing require a showing that (a) the action sought in a proceeding will cause " injury-in-fact," and { (b) the injury is arguably within the " zone of interests" protected by statutes governing the proceeding. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI- i i 83-25, 18 NRC 327, 332 (1983). Where a petitioner does not satisfy the judicial standards for ; standing, intervention could still be allowed as a matter of i discretion. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327, 333 (1983). 2.9.4.1.1 " Injury-In-Fact" and " Zone of Interest" Tests for Standing to Intervene Although the Commission's Pebble Sprinas ruling (CLI 27, 4 NRC 610) permits discretionary intervention in certain limited circumstances, it stresses that, as a general rule, the propriety of intervention is to be examined in the light of judicial standing principles. The judicial principles referred to are those set forth in Sierra Club v. Morton, 405 U.S. 727 (1972); Barlow v. Collins, 397 U.S. 159 (1970); and Association of Data Processina Service Organizations v. Camo, 397 U.S. 150 (1970). Such standards require a showing that (1) the action being challenged could cause injury-in-fact to the person seeking to establish standing, and (2) such injury is arguably within the zone of interests protected by the statute governing the proceeding. Consumers Power C_q (Palisades Nuclear Power Facility), LBP-81-26,14 NRC 247, 250 (1981), citina, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980); Wisconsin Electric Power MARCH 1987 PREHEARING MATTERS 42
l' f,, 6 2.9.4.1.1 . V} Co. (Point Beach, Unit 1), CL1-80-38, 12 NRC 547 (1980); Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27,-4 NRC 610 (1976); Huclear Fuel Services. Inc. and N.Y. State Energy Research and Development Authority (Western New York Nuclear Service Center), LBP ~36, 15 NRC 1075, 1083 (1982); Philadelphia Electric Comoany (Limerick Generating Station, Units I and 2), LBP-82-43A, 15-NRC 1423, 1431, 1432 (1982), citino, Portland General Electric f_g.,_- (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 612-13 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear. Station, Unit 1), CLI-85-2, 21 NRC 282, 316 ' (1985); Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98 n.6 (1985), affirmed on other arounds, ALAB-816, 22 NRC 461 (1985). Purely academic interests are not encompassed by 10 CFR s 2.714(a) which states that any person whose interest is affected by a proceeding shall file a written petition for leave to intervene. Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), LBP-82-52, 16 NRC 183, 185 (1982). See aenerally, CLI-81-25, 14 NRC 616 (1981), (guidelines for Board). Two tests must be satisfied to acquire standing: (1) petitioner must allege " injury-in-fact" (that some injury has b.s occurred or will probably result from the action involved); D) (2) petitioner must allege an interest " arguably within the zone of interest" protected by the statute. Puaet Sound Power and Liaht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 983 (1982), citina, Warth v. Selden, 422 U.S. 490 (1975); Sierra Club v. Morton, 405 U.S. 727 (1972); Consumers Power Ch (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 113 (1979); Duouesne Liaht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 428 (1984). A petitioner must allege an " injury-in-fact" which must be within the " zone of interests" protected by the Atomic Energy Act or the National Environmental Policy Act of 1969. Niacara Monawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), LBP-83-45, 18 NRC 213, 215 (1983). With respect to " zone of interest," the Appeal Board, in Virainia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98, 103 n.6 (1976), rejected the contention that the Atomic Energy Act includes a
" party aggrieved" provision which would require for standing purposes simply a showing of injury-in-fact.
The Commission agreed with this analysis in its Pebble Sprinas decision. As such, zone of interest requirements ( are not met simply by invoking the Atomic Energy Act but must be satisfied by other means. The following should be noted with regard to " zone of interest" requirements: MARCH 1987 PREHEARING MATTERS 43
l l 5 2.9.4.1.1 (1) The directness of a petitioner's connection with a facility bears upon the sufficiency of its allegations of injury-in-fact, but not upon whether its interests fall within the zor.e of interest which Congress was protecting or regulating. Viroinia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976). (2) The Atomic Energy Act and its implementing regula-tions do not confer standing but rather require an additional showing that interests sought to be protected arguably fall within the zone of interests protected or regulated by the Act. Virainia Electric & Power Co., ALAB-342 suora; accord, Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976). i (3) While potential loss of business reputation is a cognizable " injury-in-fact," an interest in protecting business reputation and avoiding possible damage claims ! is not arguably within the zone of interest which the Act seeks to protect or regulate. Virainia Electric & Power Co., ALAB-342, suora (business reputation of reactor vessel component fabricator clearly would be injured if 1 components failed during operation; however, fabricator's l interest in protecting his reputation by intervening in I hearing on adequacy of vessel supports was not within the l zone of interests sought to be protected by the Atomic j Energy Act). j (4) The economic interest of a ratepayer is not sufficient to allow standing to intervene as a matter of right since concern about rates is not within the scope of interests l sought to be protected by the Atomic Energy Act. Kansas Gas & Electric Co. (Wolf ^ reek Generating Station, Unit 1), ALAB-424, 6 NRC ;, 128 (1977); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1420-1421 (1977); Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426 (1977); Public Service Co. of Oklahoma (Black Fox Nuclear Power Station, Units 1 & 2), LBP-77-17; 5 NRC 657 (1977). Nor is such interest within the zone of interests protected by the National Environmental Policy Act. Portland General Electric Company (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-333, 3 NRC 804 (1976). (5) A person's interest as a taxpayer does not fall with-in the zone of interests sought to be protected by either the Atomic Energy Act or the National Environmental Policy Act. Tennessee Valley Authority (Watts Bar Nuclear Plart, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 (1977). MARCH 1987 PREHEARING MATTERS 44
7 ( ') 5 2.9.4.1.1 v Economic injury gives standing under the National (6) Environmental Policy Act only if it is environmentally related. Tennessee Vallev Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418,1421 (1977). See also Lona Island Lichtina Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-292, 2 NRC 631, 640 (1975). The test is a cognizable interest that might be adversely affected by one or another outcome of the proceeding. No interest is to be presumed. There must be a concrete demonstration that harm could flow from a result of the proceeding. Nuclear Enaineerina Co.. Inc. (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978). An individual alleging that violation of constitutional provisions by governmental actions based on a statute will cause him identifiable injury should have standing to challenge the constitutionality of those actions. Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1445 (1982), citina, Chicano Po: ice Officer's Association v. Stover, 526 F.2d 431, 436 m (10th Cir. 1975), vacated and remanded on other arounds, 426 l I U.S. 994 (1976), holdina on standina reaffirmed, 552 F.2d 918 V (10th Cir. 1977); 3 K. Davis Administrative Law Treatise 22.08, at 240 (1958). The courts have not resolved the issue of whether an in-dividual who suffers economic injury as a result of a Coard's decision to bar him from working in a certain job would be within the zone of interests protected by the Atomic Energy Act. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 316 (1985). See, e.a., Consumers Power Co. (Palisades Nuclear Power Facility), ALAB-670, 1S NRC 493, 506 (1982) (concurring opinion of Mr. Rosenthal), vacated as moot, CLI-82-18, 16 NRC 50 (1982). Allegations that a plant will cause radiologically con-taminated food which a person may consume are too remote and too generalized to provide a basis for standing to intervene. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1449 (1982); Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98, affirmed _on other aroundt, ALAB-816, 22 NRC 461 (1985). For antitrust purposes, the interest of a ratepayer or consumer of electricity is not necessarily beyond the zone of interests protected by Section 105 of the Atomic / Energy Act. However, the petitioner must still demon-Q] strate that an injury to its economic interests as a DECEMBER 1985 PREHEARING MATTERS 45
9 2.9.4.1.1 ratepayer would be the proximate result of anticompetitive ! activities by the licensee. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-13, 7 NRC 583, 592-593 l (1978). 1 Antitrust considerations to one side, neither the Atomic I Energy Act nor the National Environmental Policy Act includes I in its " zone of interests" the purely economic personal concerns of a member / ratepayer of a cooperative that purchases l power from a prospective facility co-owner. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 474-475 (1978). See also Puaet Sound Power & Licht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-26, 15 NRC 742, 744 (1982). l General economic concerns are not within the proper scope of issues to be litigated before the boards. Concerns about a facility's impact on local utility rates, the local economy, or a utility's solvency, etc., do not provide an adequate basis for standing of an intervenor or for the admission of an , intervenor's contentions. Such economic concerns are more ' appropriately raised before state economic regulatory agencies. Public Service Co. of New Hamoshire (Seabrook Station, Unit 2), CLI-84-6, 19 NKC 975, 978 (1984); Washinaton Public Power Supply System (WPPSS Nuclear Project No.1), ' ALAB-771, 19 NRC 1183, 1190 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1447 (1984). Nor is a union's admittedly economic interest in maintaining contractually protected employment rights an interest that is within the " zone of interests" protected by the Atomic Energy Act; it therefore cannot serve as a basis to request a hearing as a matter of right under Section 189a. Consumers Power % (Palisades Nuclear Power Facility), LBP-81-26,14 NRC 247, 251 (1981). For an amendment authorizing transfer of 20% of the ownership of a facility, allegations that a petitioner would " receive" only 80% of the electricity produced by the plant rather than the 100% " assumed in the 'NEPA balance'" were insufficient to give standing as a matter of right because it was an economic injury outside the zone of interests to be protected and the NEPA cost-benefit analysis considers the overall benefits to society rather than benefits to an isolated portion. D.etroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP 11, 7 NRC 381, 390-90, aff'd, ALAB-470, 7 NRC 473 (1978). O DECEMBER 1985 PREHEARING MATTERS 46
-[gg[. 9 2.9.4.1.1 The Commission applies judicial tests of " injury-in-fact" and l: " arguably within the zone of interest" to determine standing.
" Injury" as a premise to standing must come from an action, in contrast to failure to take an action. One who claims that an Order in an enforcement action should have provided for more extensive relief does not show injury from relief granted ~and thus does not have standing to contest the order. . Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC'438, 439 (1980).
A mere acadeinic interest in the outcome of a proceeding will not confer standing. The petitioner must allege some injury-that has or will occur from the action taken as a result of the proceeding. Skaait/Hanford, supra at 743. To establish the requisite " injury-in-fact" for standing, a petitioner must have a "real stake" in the outcome, that is, a genuine,. actual, or direct ' stake, but not necessarily a substantial state in the outcome. An organization meets this requirement where it has identified one of its members who possesses the requisite standing. Houston Liahtino and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 447-448 (1979). l p b)'
- A petitioner who supports an application must, of course, show the potential for injury-in-fact to its interests before intervention can be granted. Such a petitioner must particu-L larize a specific injury that it or its members would or might sustain should the application it supports be denied or should the license it supports be burdened with conditions or restrictions. Nuclear Enaineerina Co.. Inc. (Sheffield, Ill.
Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978). An alleged injury to health and safety, shared equally by all those residing near a reactor, can form the basis for standing. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1434 (1982). A petitioner may base its standing upon a showing that his or her residence, or that of its members, is within the geographical zone that might be affected by an accidental release of fission products. H2gston Liahtina and Power Co. (South Texas Project, Uni b 1 and 2), LBP-79-10, 9 NRC 439, 443 (1979). See >.ho Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 78 (1979). Close proximity has always been deemed enough standing alone, to establish the requisite interest for intervention. In such a l V ) DECEMBER 1985 PREHEARING MATTERS 47
9 2.9.4.1.1 ; case the petitioner does not have to show that his concerns are well-founded in fact, as such concerns are addressed when the merits of the case are reached. Distances of as much as 50 miles have been held to fall within this zone. Virainia Electric and Power Comoany (North Anr.a Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC 54, 56 (1979); Dyouesne Liaht A (Beaver Valley Power Station, Unit 2), LBP-84-6,19 NRC 393, 410, 429 (1984), citina, South Texas, sopra, 9 NRC ht 443-4,; Enrico Fermi, suora, 9 NRC at 78; Tennessee Vallev ) Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB- ] 413, 5 NRC 1418, 1421 n.4 (1977); Texas Utilities Generatina j Co. (Comanche Peak Steam Electric Station, Units 1 and 2), I LBP-79-18, 9 NRC 728, 730 (1979). l An intervention petitioner who resides near a nuclear facility need not show a causal relationship between injury to its l interest and the licensing action being sought in order to ) establish standing. Armed Forces Radiobioloav Research ) Institute (Cobalt-60 Storage Facility), ALAB-682,16 NRC 150, j 153 (1982), citing, Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-522, 9 NRC ) 54, 57 n.5 (1979). J l In a materials license renewal proceeding under 10 CFR Part ; 30, as in construction permit and operating license proceed-' l ings under 10 CFR Part 50, proximity to a large source of I radioactive material is sofficient to establish the requisite interest for standing to intervene. Whether a petitioner's stated concern is in fact justified most be left for con-sideration when the merits of the controversy ara reached. Armed Forces Radiobio_loav Research Institute (Cobalt-60 l Storage Fa ility), ALAB-682,16 NRC 150,154 (1982). Seg e l aenerally, LBP-82-24, 15 NRC 652 (1982), (decision reversed regarding petitioner's request to intervene). However, postcards and letters from individuals allegedly living near j nuclear fuel element manufacturing and fuel element decladding l facilities which maka only vague and generalized allusions to danger or potential injury from radiation do not constitute a < proper intervention statement. Rockwell International Corp. (Energy Systems Group Special Materials License No. SNM-21), l LBP-83-65, 18 NRC 774, 777 (1983). Although residence within 50 miles is not an explicit requirement for intervention by right, that limit is ! consistent with precedent. Without a showing that a plant has a far greater than ordinary potential to injure outside a 50 mile limit, a person has a weak claim to l' the protection of a full adjudicatory proceeding; rule-n'aking or lobbying Congress are available to protect public interests of a general nature. Cleveland Electric I DECEMBER 1985 PREHEARING MATTERS 48 i
l q 9 2.9.4.1.2 1
\_f Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
LBP-81-24, 14 NRC 175, 178-179 (1981). However, the fact that a petitioner may reside within a 50-mile radius of a facility will not always be sufficient to establish standing to intervene. A Board will consider the nature of the proceeding, and will apply different standing considerations to proceedings involving construction permits or operating licenses than to proceedings involving license amendments. Thus, in a license amendment proceeding involving an existing facility's fuel pool, a Board denied intervention to a petitioner who resided 43 miles from the facility because the petitioner failed to demonstrate that the risk of injury from the fuel pool extended that far from the facility. Boston Edison Cp2 (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98-99 (1985), affirmed on other arounds, ALAB-816, 22 NRC 461 (1985). Residence more than 75 miles from a plant will not alone establish an interest sufficient N standing as a matter of right. Philadglohia Electric Co. ,.imerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1447 (1982), citina, Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), ALAB-497, 8 NRC 312, 313 (1978); Public
,ew Service Co. of Oklahoma (Black Fox Units 1 and 2), ALAB-397, 5 NRC 1143, 1150 (1977).
(v) A statement of asserted injury which is insufficient to found a valid contention may well be adequate to provide a basis for standing. Consumers Fower ComDany (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 115 (1979). Failure to produce an environmental impact statement in circumstances where one is required has been held to con-stitute injury - indeed, irreparable injury. P_a W ade1, supra,-10 NRC at 115-116. Persons residing within the close proximity to the locus of a proposed action constitute the very class which an impact statement is intended to benefit.
, Palisades, suora, 10 NRC at 116.
2.9.4.1.2 Standing of Organizations to Intervene A party may intervene as of right only when he asserts his own interests under either the Atomic Energy Act or NEPA, and not when he ascerts interests of third persons. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418, 1421 (1977). Commis-sien practice requires each party to separately establish standing. 10 CFR s 2.714. Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 623 (1981). An organization may meet the in-
/]
s x.s f jury-in-fact test for standing in one of two ways. It DECEMBER 1985 PREHEARING MATTERS 49
l l
- l. 9 2.9.4.1.2 l may demonstrate an effect upon its organizational interest, or it may allege that its members, or any of them, are suffering j l immediate or threatened injury as a result of the challenged
- action of the sort that would make out a justifiable case had l the members themselves brought suit. Houston Liahtira and Power Co. (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 646 (1979); Consumers Power Company (Palisedes Nuclear Plant), LBP-79-20,10 NRC 108,112-113 (1979). Egg Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), 1.BP-87-7, 25 NRC 116, 118 (1987). Thus, a i corporate environmental group has standing to intervene and represent members who have an interest which will be affected.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-322, 3 NRC 328 (1976). Note, however, that a member's mere " interest in the problem" without a showing that the member will be affected is insufficient to give the organization standing. Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-328, 3 NRC 420 (1976). An organization does not have independent standing to intervene in a licensing proceeding merely because it asserts an interest in the litigation. Puaet Sound Power and liaht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), LBP-82-74, 16 NRC 981, 983 (1982), citina, Allied General Nuclear Services (Barnwell Fuel Receiving and Storage Station), ALAB-323, 3 NRC 4", 422 (1976). In this vein, for national environmental groups, standing is derived from injury-infact to individual members. South Texas, suora, 9 NRC at 647, citina, Sierra Club v. Norton, 405 U.S. 727 (1972). However, an organization specifically empowered by its members to promote certain of their interests has those members' authorization to act as their representative in any proceeding that may affect those interests. Puoet Sound Power and Licht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), ALAB-700, 16 NRC 1329, 1334 (1982); ge Hunt v. Washinaton Aoole Advertising Commission, 432 U.S. 333, 342-345 (1977); Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-536, 9 NRC 402, 404 n.2 (1979); Houston Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 395-396 n.25 (1979). There is a presumption of standing where an organization ! raises safety issues on behalf of a member or members residing in close proximity to a plant. Consumers Power Comoany (Palisades Nuclear Plant), LBP-79-20,10 NRC 108,115 (1979); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116, 118 (1987). For a case holding that a petitioner cannot assert the { i rights of third parties as a basis for intervention, see Detroit Edison Co. (Enrico Fermi Atomic Power Plant, JUNE 1987 PREHEARING MATTERS 50 t._-..___ _ _ __ _ _ _ _ _ _ _ . _ _ _ __ _ _
f i p 9 2.9.4.1.2-Unit 2), LBP-78-11, 7 NRC 381, 387, Eff'd,-ALAB-470, 7 NRC 473
'(1978).(mother attempted to assert the rights of her son who attended medical school near a proposed' facility).
(
"[I]t is clear that an organization may establish its standing through the interest of its members; but, to do so, it must identify specifically the name and address of at least one affected member who wishes to be represented by the organiza-tion." Detroit Edison Comoany (Enrico Fermi-Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 583 (1978); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116, 118 (1987).
Where an organization is to be represented in an NRC pro-ceeding by one of its members, the member must demonstrate authorization by that organization to represent it. Fermi, supra, 8 NRC at 583. If an official of an organization has the requisite personal interests to support an intervention petition, her signature on the organization's petition for intervention is enough to give the organization standing to intervene. However the organization is not always necessarily required to produce an affidavit from a member or sponsor authorizing it to represent p that. member or sponsor. The organization may be presumed to I Q represent the interests of those of its members or sponsors in the vicinity of the facility. (Where an organization has no members, its sponsors can be considered the equivalent to mem- l bers where they financially support the organization's objec-tives and have indicated a desire to be represented by the organization). Consolidated Edison Co. of N.Y. (Indian Point, Unit No. 2) and Power Authority of the State of N.Y. (Indian Point, Unit No. 3), LBP-82-25, 15 NRC 715, 728-729, 734-736 (1982). To estatilish the reouisite " injury-in-fact" for standing, a 1 petitioner must have a "real stake" in the outcome, a genuine, j actual, or direct stake, but not necessarily a substantial i stake in the outcome. An organization meets this requirement where it has identified one of its members who possesses the requisite standing. liouston Liahtino and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 447-448 (1979). An organization seeking to obtain standing in a representative i capacity must demonstrate that a member has in fact authorized such representation. Houston Liahtina and Power Co m (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 444 (1979), aff'd, ALAB-549, 9 NkC 644 (1979); petroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73,
, 77 (1979); Consumers Power Company (Palisades Nuclear Plant),.
i' LBP-79-20, 10 NRC 108, 113 (1979); Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit No. 1), LBP-82-52, JUNE 1987 PREHEARING MATTERS 51
I h 9 2.9.4.1.2 16 NRC 183, 185 (1982), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979); in aenerally, CLI-81-25, 14 NRC 616 (1981), i (Guidelines for Board); Cincinnati Gas and Electric Co. ; (Zimmer Nuclear Power Station, ' Unit 1), LBP-82 54,16 NRC 210, ' 216 (1982), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377 (1979); Dy_ggrne tiaht Co. (Beaver Valley Power Station, Unit 2), LBPe84-6, 19 NRC 393,- 411 (1984); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), LBP-87-7, 25 NRC 116, 118 (1987). Where the affidavit of the member is devoid of any statement that he wants the organization to i represent his interests, it is unwarranted for the Licensing 1 Board to infer such authorization, particularly where the 1 opportunity was offered to revise the document and was ignored. E_gaver Vallev, supra,19 NRC at 411. To have standing, an organization must show injury either to its organizational interests or to the interests of members who have authorized it to act for them. Philade_lphia Electric _Co.,. o (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1437 (1982), citina, Warth v. Seldirt, 422 U.S. 490, 511 (1975); Sierra Club v. Morton, 405 U.S. 727, 739 740 (1972); Consumers Power Co. (Palisades Nuclear Plant), LBP 20, 10 NRC 108, 113 (1979). ' An organization depending upon injury to the interests of its members to establish standing, must provide with its petition identification of at least cne member who will be injured, a description of the nature of that injury, and an authorization for the organization to represent that individual in the proceeding. Philadelphia Electric Co. (Limerick Generating Station Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1437 (1982), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390-96 (1976). Absent express authorization, an organization which is a party to an NRC proceeding may not represent persons other than its own members. Since there are no Commission regu-lations allowing parties to participate as private attor-neys general, an organization acting as an intervenor may not claim to represent the public interest in general in addition to representing the specialized interests of its members. In this vein, a trade association of home heating oil dealers cannot be deemed to represent the interests of employees and customers of the dealers. Similarly, an organization of residents living near a proposed plant site cannot be deemed to represent the interests of other residents who are not members. Lona Island Liantina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-ll, 5 NRC 481 (1977); Puaet Sound Power and liaht Co. (Skagit/Hanford Nuclear Power Project, JUNE 1987 PREHEARING MATTERS 52
i p l L ,, j 9 2.9.4.1.2 v Units 1 and 2), LBP-82-74, 16 NRC 981, 984 (1982),.citina, Shoreham, suora, 5 NRC at 481, 483. An organization must, in itself, and through its own member-ship, fulfill the requirements for standing. Shaqit/Hanford, supra, 16 NRC at 984, citina, Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976). An organization has sufficiently demonstrated its standing to intervene if its petition is signed by a ranking official of the organization who himself has the requisite personal interest to support the intervention. An organization seeking intervention need not demonstrate that its membership had voted to seek intervention on tiie matter raised by a submitted contention, and had authorized the author of the intervention petition to represent the organization. Duke Power Company (Amendment to Materials License SNM-1773 -- Transportation of Spent Fuel from Oconee Nuclear Station for St6 rage at McGuire Nuclear Station), ALAB-528, 9 NRC 146,151 (1979). An organization cannot meet the " interest" requirement for n standing by acquiring a new member considerably after the I deadline for filing of intervention petitions who meets the
,V " interest" requirement, but who has not established good cause for the out-of-time filing. Washinaton Public Power Supply System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330, 335 (1979). The organization cannot in this situation amend its original pleading to show the interest of the new member; the Licensing Board has interpreted 10 CFR & 2.714(a)(3) to permit amendment of a petition relative to interest only by those individuals who have made a time',y filing and are merely particularizing how their interests may be affected. WPPSS, suora, 9 NRC at 336.
Where the petitioner organization's membership solicitation brochure demonstrates that the organization's sole purpose is to oppose nuclear power in general and the construction and operation of nuclear plants in the northwest in particular, mere membership by a person with geographic standing to intervene, witi.out specific representational authority, is sufficient to confer standing. Washinoton Public Power Supply System (WPPSS Nuclear Project No.1), LBP-83-16,17 NRC 479, 482 (1983). A petitioner organization cannot amend its petition to satisfy the timeliness requirements for filing without leave of the Board to include an affidavit executed by someone who
/~N became a member after the due date for filing timely petition.
{G J WPPSS, suora,17 NRC at 483. JUNE 1987 PREHEARING MATTERS 53
9 2.9.4.1.3 It is not necessary for the individual on whom organizational standing is based to be conversant with, and able to defend, each and every contention raised by the organization in pursuing his interest. Litigation strategy and the technical details of the complex prosecution of a nuclear power intervention are best left to the resources of the organiza-tional petitioners. WPPSS, supra, 17 NRC at 485. 2.9.4.1.3 Standing to Intervene'in Export Liccasing Cases In Edlow International Co., CLI-76-6, 3 NRC 563 (1976), the Commission dealt with the question as to whether the Natural Resources Defense Council and the Sierra Club could intervene as of right and de:nand a hearing in an export licensing case. The case involved the export of fuel to India for the Tarapur ! project. The petitioners contended that at least one member i of the Sierra Club and several members ef NRDC lived in India and thus would be subject tc any hazards created by the reactor. ; In rejecting the argument that there was a right to intervene, the Commission stated: If petitioners allege a concrete and direct injury their claim of standing is not impaired merely be-cause similar harm is suffered by many others, i However, if petitioners' ' asserted harm is a
" generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction'. 3 NRC at 576.
The Commission held that the alleged interests were de minimic (3 NRC at 575), noting that, while in domestic licensing cases claims of risk that were somewhat remote have been recognized as forming a basis for intervention, Section , 189(a) of the Act (42 U.S.C. @ 2239(a)) would not be given such a broadly permissive reading (3 NRC at 571) in export licensing cases. Consistent with its decision in Edlow International Co., CLI-76-6, 3 NRC 563 (1976), the Commission has held that a petitioner is not entitled to intervene as a matter of right where its petition raises abstract issues relating to the conduct of U.S. foreign policy and protection of the national security. The petitioner must establish that it will be injured and that the injury is not a generalized grievance shared in substantially equal measure by all or a large class of citizens. In the Matter of Ten Aoolications, CLI-77-24, 6 NRC 525, 531 (1977). Nevertheless, the Commission may, in its discretion, direct further public proceedings if it determines that such proceedings would be in the public interest even though the petitioner has JUNE 1987 PREHEARING MATTERS 54
.c 5 2.9.4.1.4 i n ,
() not established a right under Section 189 of the Atomic Energy Act to intervene or demand a public hearin0 E at 532. See also Braunkohle Transoort. USA (Import of South African Uranium Ore Concentrate), CLI-87-6,.25 NRC 891, 893 (1987), citina, 10 CFR 9 110.84(a). The contention that a major Federal action would have a significant environmental inpact on a foreign nation is not cognizable under NEPA, and cannot support intervention. Babcock & Wilcox (Application for Considerations of Facility Export License), CLI-77-18, 5 NRC 1332, 1348 (1977). Judicial precedents will be relied on in deciding issues of standing to intervene in export licensing. Westinghouse Electrje Cort,. (Export to South Korea), CLI-80-30, 12 NRC 253, 258 (1980). Iristitutional interests in disseminating information and educating the public do not establish a claim of right under Section 189a of the Atomic Energy Act for purposes of standing because it would not constitute an interest affected by the proceeding. There must be a causal nexus between the refusal to allow standing and the inability to disseminate informa-tion. E at 259. p 2.9.4.1.4 Standing to Intervene in Specific Factual Situations t V) Residence within 30-40 miles of the plant site has been held to be sufficient to show the requisite interest in raising safety questions. Vircinia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-146, 6 AEC 631, 633-634 (1973); Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 372, n.6 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188,190,193, reconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973); ; Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, l Unit 1), LBP-88-10A, 27 NRC 452, 454-55 (1988), aff'd on other i arounds, ALAB-893, 27 NRC 627 (1988). Similarly, a person whose base of normal, everyday activities is within 25 miles of a nuclear facility can fairly be presumed to have an interest which might be affected by reactor construction and/or operation. Gulf States Utilities Co. (River Bend ! , Station, Units 1 & 2), ALAB-183, 7 AEC 222, 226 (1974). l Moreover, persons who allege that they use an area whose recreational benefits may be diminished by a nuclear facility have been found to possess an adequate interest to allow intervention. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-73-10, 6 AEC 173 (1973). On the other hand, it is proper for a Board to dismiss an p) t D intervention petition where the intervenor changes residence to an area not in the proximity of the reactor and totally fails to assume any significant participatory role in the SEPTEMBER 1988 PREHEARING MATTERS 55
9 2.9.4.1.4 proceeding. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-358, 4 NRC 558 (1976). A petitioner who resides far from a facility cannot a'cquire standing to intervene by asserting the interests of a third party who will be near the facility but who is not a minor or otherwise under a legal disability which would preclude his own participation. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 474 n.1 (1978).
"A petitioner may base its standing upon a showing that his or her residence, or that of its members, is 'within the geographical zone that might be affected by an accidental release of fission products.' Louisiana Power and Liaht Company (Waterford Steam Electric Station, Unit 3), ALAB-125, 6 AEC 371, 371 n.6 (1973)." Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 78 (1979). Distances of as much as 50 miles have been held to fall within this zone. Tennessee Vallev Authority (Watts Bar !
Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 n.4 (1977) (50 miles); Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188, 193 (1973) (40 miles); Fermi, suora (35 miles). , l The Licensing Board refused to allow intervention on the basis of the possibility of petitioners' consuming produce, meat products, or fish originating within 50 miles of the site. Washinaton Public Power Sunoly System (WPPSS Nuclear Project Nc. 2), LBP-79-7, 9 NRC 330, 336 (1979). A petitioner owning and renting out farmland 10 to 15 miles from the site and visiting the farm occasionally was held not to meet standing requirements. WPPSS, supra, 9 NRC at 336-338. One living 26 miles from a plant cannot claim, without more, that his aesthetic interests are harmed. Conjectural interests do not provide a basis for standing. Nor does economic harm or one's status as a ratepayer provide a basis for standing. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582, 11 NRC 239, 242, 243 n.8 (1980). I The fact that the petitioner is an intervenor with respect to the same issue in another proceeding does not give him standing to intervene for the purpose of protecting himself from adverse precedent in the proceeding in question. Consolidated Edison Co. of N.Y. Inc. (Indian Point Nuclear Power Station, Units 1, 2 & 3), ALAB-304, 3 NRC 1, 4 (1976). Where a license amendment grants a co-licensee precisely the relief which the co-licensee seeks as a party to a pending proceeding, the co-licensee loses its standing SEPTEMBER 1988 PREHEARING MATTERS 56
^ ; f .
- ( 9 2.9.4.1.4-v to assert its claim in the proceeding.- Nuclear Fuel Services and New York State Enerav Research and Development Authority-(Western New York _ Nuclear Service Center), LBP-82-36, 15 NRC 1075,'1083 (1982).
For the views of various Appeal Board members on whether a . petitioner has the requisite interest where he has an economic interest which competes with nuclear power in generating electricity, Aga the three opinions in Lona Island Liahtina. Co. (Jamesport Nuclear Power. Station), ALAB-292, 2 NRC 631 (1975).
-A petitioner who supports an application must, of course, show the potential for injury-in-fact to its interests.before intervention can be granted. Such a petitioner must particu-larize a specific injury that it or its members would or might sustain should the application it supports be denied or should
'the license it supports be burdened with conditions or restrictions. Nuclear Enaineerina Co., Inc. (Sheffield, Ill.
Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC-737, 743 (1978). In a license amendment proceeding to allow two electric O cooperatives to become co-owners of a nuclear plant, interests Q of a petitioner which stemmed from membershiptin the coopera-tive (" loss of equity," " threat of bankruptcy," " higher-rates," " cost of replacement power," or " loss of property taxes") were insufficient to support standing as a matter of right. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386, aff'd, ALAB-470, 7 NRC 473 (1978). Those persons who would have standing to intervene in new construction permit hearings, which would be required if good cause could not be shown for an extension of an existing construction permit, would have standing to intervene in [ extension proceedings] to show that no good cause existed and, consequently, that new construction permit hearings would be required to complete construction. Northern Indiana Public Service Company (Bailly Generating Station, Nuclear-1), LBP-80-22, 12 NRC 191, 195, affirmed, ALAB-619, 12 NRC 558, i 563-565 (1980). Economic injury to ratepayers is not sufficient to confer standing upon State Commissions to challenge proposed license revocation because such injury results from termination of the project and not Commission " action," and because such injury cannot be redressed by favorable Commission action. Northern States Power Company (Tyrone
/9 Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 526-527 (1980) (views of Chairman Ahearn and Commissioner Hendrie).
DECEMBER 1985 PREHEARING MATTERS 57
! -l i A statement of asserted injury which is insufficient to found a valid contention may well be adequate to provide a basis for standing. . Consumers Power Comoany (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 115 (1979). Failure to produce an environmental impact statement in circumstances where one is required has been held to constitute injury - indeed, irreparable injury. Palisades, suora,10 NRC at 115-116. Persons residing within the close proximity to the locus of a proposed action constitute the very class which an impact statement is intended to benefit. Palisades, supra, 10 NRC at 116. , 2.9.4.2 Discretionary Intervention Although a petitioner may lack standing to intervene as of right under judicial standing concepts, he may nevertheless be ! admitted to the proceeding in the Licensing Board's dis- l cretion. In determining whether discretionary intervention { should be permitted, the Commission has indicated that the j Licensing Board should be guided by the following factors, among others: (a) Weighing in favor of allowing intervention -- (1) The extent to which the petitioner's participation I may reasonably be expected to assist in developing a i sound record. !
\
(2) The nature and extent of the petitioner's property, I financial, or other interest in the proceeding. ' (3) The possible effect of any order which may be i entered in the proceeding on the petitioner's interest. l (b) Weighing against allowing intervention -- (4) The availability of other means whereby petitioner's interest will be protected. (5) The extent to which the petitioner's interest will i be represented by existing parties. ' (6) The extent to which petitioner's participad on will inappropriately broaden or delay the proceeding. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CL1-76-27, 4 NRC 610, 616 (1976). See also Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CL1-81-25, 14 NRC 616, 623 (1981); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1435 (1982); JUNE 1987 PREHEARING MATTERS 58
l 9 2.9.4.2 (, mRs) Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), LBP-87-2, 25 NRC 32, 35 (1987). The discretionary intervention doctrine comes into play only in circumstances where standing to intervene as a matter of right has not been established. Duke Power Company (0conee Nuclear Station and McGuire Nuclear Station), ALAB-528, 9 NRC 146,148 n.3 (1979). The primary factor to be considered is the significance of the contribution that a petitioner might make. Pebble Sorinas, suora. Thus, foremost among the factors listed above is whether the intervention would likely produce a valuable contribution to the NRC's decisionmaking process on a significant safety or environmental issue appropriately addressed in the proceeding in question. Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 & 2), ALAB-413, 5 NRC 1418 (1977). See also Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-470, 7 NRC 473, 475 n.2 (1978). The need for a strong showing as to potential contribution is especially pressing in an operating license proceeding where no petitioners have established standing as of right and where, absent such a showing, no hearing would be held. Watts Bar, spora, 5 NRC at 1422.
;p') For a case in which the Commission's discretionary inter- 'V vention rule was applied, see Virainia Electric & Power Co.
(North Anna Power Station, Units 1 & 2), ALAB-363, 4 NRC 631 (1976)., where, despite petitioner's lack of judicial standing, intervention was permitted based upon petitioner's demonstra- ; tion of the potential significant contribution it could make on substantial issues of law and fact not otherwise raised or presented and a showing of the importance and immediacy of those issues. For discretionary intervention, the burden of convincing the Licensing Board that a petitioner could make a valuable contribution lies with the petitioner. Nuclear Enaineerina Co. , Inc. (Sheffield, Ill . Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 745 (1978). Considera-tions in determining the petitioner's ability to contribute to development of a sound record include: (1) a petitioner's showing of significant ability to con-tribute on substantial issues of law or fact which will not be otherwise properly raised or presented; (2) the specificity of such ability to contribute on those substantial issues of law or fact; [' (3) justification of time spent on considering the sub-stantial issues of law or fact; ()N JUNE 1987 PREHEARING MATTERS 59
L 9 2.9.5 (4) provision of additional testimony, particular expertise, ( or expert assistance; I (5) specialized education or pertinent experience. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-81-1, 13 NRC 27, 33 (1981) (and cases cited therein). I Where a petitioner failed to respond to a Licensing Board ! order seeking clarification following presentation of evidence ; ! casting shadow on his purported qualifications, the Board was entitled to conclude that a petitioner would not help to create a sound record, and that the veracity of his other statements were suspect, leading to denial of his petition. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 457-458 (1979). I As to the second and third factors to be considered with regard to discretionary intervention (the nature and extent of property, financial or other interests in the proceeding and the possible effect any order might have on the petitioner's interest), interests which do not establish a riaht to intervention because they are not within the " zone of interests" to be protected by the Commission should not be considered as positive factors for the purposes of granting discretionary intervention. Detroit Edison Co. (Enrico Fermi Atomic' Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 388, aff'd, ALAB-470, 7 NRC 473 (1978). l The Commission has broad discretion to allow intervention where it is not a matter of right. Such intervention will not be granted where conditions have already been imposed on a licensee, and no useful purpose will be served by that intervention. Public Service Co. of Indiana (Marble Hill ! Nuclear Generating Station, Units 1 & 2), CLI-80-10, 11 NRC 438, 442 (1980). 2.9.5 Contentions of Interveners j i Contentions constitute the method by which the parties to a ; licensing proceeding frame issues under NRC practice, similar I to the use of pleadings in their judicial counterparts. Such l contentions may be amended or refined as a result of addi- i tional information gained by discovery. Texas Utilities l Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981). The basis for a contention may not be undercut, and the contention thereby excluded, through an attack on the credibility of the expert who provided the basis for the contention. Cleveland Electric illuminating Co. (Perry ; i DECEMBER 1985 PREHEARING MATTERS 60
1 9 2.9.5 [ s)
'~
Nuclear Power Plant, Units 1 and 2), LBP-82-98, 16 NRC 1459, 1466 (1982), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980). The admission of a contention does not require anticipation of-the contents of a document that has not been filed. A contention may address any current deficiency of the applica-tion, providing the contention is specific. Perry, supra, 16 NRC at 1469. The Commission could not have intended that prior to admitting a contention advocating a safety measure, the Board should have found that a significant risk surely existed without such t a safety measure. Such a finding should reflect the outcome of that litigation rather than its starting point. Consoli-dated Edison Co. of N.Y. (Indian Point, Unit 3) and Power Authority of the State of N.Y. (Indian Point, Unit 3), LBP-82-105, 16 NRC 1629, 1634 (1982). A contention about a matter not covered by a specific rule need only allege that the matter poses a significant safety problem. That would be enough to raise an issue o under the general requirement for operating licenses (10 CFR
@ 50.57(a)(3)] for finding of reasonable assurance of opera-(V T tion without endangering the health and safety of the public.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1946 (1982). An intervenor's failure to particularize certain contentions or even, arguendo, to pursue settlement negotiations, when ! taken by itself, does not warrant the out-of-hand dismissal of interveners' proposed contentions. There is a sharp contrast between an intervenor's refusal to provide information requested by another party on discovery, even after a Licensing Board order compelling its disclosure, and the asserted failure of interveners to take advantage of addi-tional opportunity to narrow and particularize their conten-tions. lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 16 NRC 986, 990 (1982). Pursuant to 10 CFR s 2.707, the Licensing Board is empowered, on the failure of a party to comply with any prehearing conference order, "to make such orders in regard to the failure as are just." The just result, where interveners have not fully availed themselves of an opportunity to further ! particularize their contentions, is to simply rule on l interveners' contentions as they stand, dismissing those proposed contentions which lack adequate bases and specif-icity. Shoreham, supra,16 NRC at 990; Philadelphia Electric (~] Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, t,y 21 NRC 587, 592 (1985). DECEMBER 1985 PREHEARING MATTERS 61
- . _ _ _ _ _ _ _ - - _ _ - ~
n 9.2.9.5 The Licensing Board may limit the time for the filing of contentions to less than that normally allotted by the rules, ! 10 CFR 6 2.714(a)(3) and (b), so that all participants know before they arrive at the special prehearing conference, what position the proponents of the plant are taking on the various contentions. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565,10 NRC 521, 523 (1979). See also General Electric Co. (GETR Vallecitos), LBP-83-19, 17 NRC 573, 578 (1983) and Houston Liahtina & Power Co. (Allens Creek Nuclear Generati Station, Unit 1), ALAB-574, ; 11 NRC 7, 12-13 (1980). Commission regulations direu, that contentions be filed in advance of a prehearing conference. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 172 n.4 (1983), citina, 10 CFR 9 2.714(b). A Licensing Board should not address the merits of a conten-tion when determining its admissibility. Public_ Service Co. of New Hampshire (Seabrook Station, Units 1 and Z), LBP 106, 16 NRC 1649, 1654 (1982), citina, Allens Creek, supra, 11 NRC at 542; Kansas Gas & Electric Co. (Wolf Creek Generat-ing Station, Unit 1), LBP-84-1, 19 NRC 29, 34 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, j Units 1 and 2), LBP-85-11, 21 NRC 609, 617 (1985), rev'd and i remanded on other arounds, CLI-86-8, 23 NRC 241 (1986); ! Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 (1986); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 l NRC 912, 933 (1987). See Consumers Power Co. (Midland Plant, , Units 1 and 2), LBP-84-20, 19 NRC 1285, 1292 (1984), citina, ; Allens Creek, suora, 11 NRC 542; Alabama Power Co. (Joseph M. ! Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216 ! (1974), rev'd on other arounds, CLI-74-12, 7 AEC 203 (1974); ! and Duauesne Licht Co. (Beaver Valley Power Station, Unit 1), l ALAB-109, 6 AEC 243, 244-45 (1973). What is required is that an intervenor state the reasons for its concern. Seabrook, supra, citina, Allens Creek, suora. Relevance is not the only criterion for admissibility l of a contention. 10 CFR @ 2.714 requires that the bases ! for each contention must be set forth with reasonable l specificity. Wisconsin EI S ctric Power Co. (Point Beach Nuclear Plant, Unit 1), LBF-82-108,16 NRC 1811,1821 , (1982). See Cleveland Electric Illuminating Co. (Perry i Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC ; 175,181-84,(1981); Commonwealth Edison Co. (Braidwood l Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC i 609, 617, 627 (1985), rev'd and remanded on other arounds, , CLI-86-8, 23 NRC 241 (1986); Philadelphia Electric Co. l SEPTEMBER 1987 PREHEARING MATTERS 62 i l
-_ - - - 8
l G 9 2.9.5
). l l
(Limerick Generating Station, Units 1 and 2), CLI-85-15, 22 .i NRC 184, 187 (1985); Houston Liahtina and Power Co. (South l Texas Project, Units 1 and 2), LBP-86-8, 23 NRC 182, 188 (1986); General Public Utilities Nuclear Corp. (Three Mile' ! Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 l' (1986); Carolip_a Power and liaht Co. and North Carolina Eastern Municinal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 (1986); Pacific G!s and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 851 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 23') (1986); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 842, 847 (1987), aff'd in part on other arounds, ALAB-869, 26 NRC 13 (1987), reconsid. denied on other arounds, ALAB-876, 26 NRC 277 (1987); Texas Utilities Electric 1q1 (Comanche Peak i Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 930 (1987); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-87-24, 26 NRC 159,162,165 (1987), aff'd, ALAB-880, 26 NRC 449, 456 (1987); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-877, 26 NRC 287, 292-94 (1987); Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 455, 458 (1988), aff'd, ALAB-893, 27 NRC 627 (1988). A long and detailed list of omissions and problems (Jn) K does not, without more, provide a basis for believing that there is a safety issue. Discovered problems are not in themselves grounds for admitting a contention. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-75A, 18 NRC 1260, 1263 n.6 (1983); Philadelphia Elgetric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 725 (1985). See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 240 (1986). The purposes of the basis-for-contention requirement are: (1) to help assure that the hearing process is not improperly invoked, for example, to attack statutory requirements or regulations; (2) to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose; (3) to assure that the proposed issues are proper for adjudication in the particular proceeding-- i.e., generalized views of what applicable policies ought to be are not proper for adjudication; (4) to assure that the contentions apply to the facility at bar; and (5) to assure that there has been sufficient foundatien assigned for the contentions to warrant further explana-tion. General Public Utilities Nuclear Corp. (Three
/ Hile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC
(']) 283, 285 (1986), citina, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 SEPTEMBER 1988 PREHEARING MATTERS 63 _ _ _ _ _ _ _ _ _ _ - _ . .i
} . l s 2.9.5 l AEC 13, 20-21 (1974). See Texas Utilities Electric QL. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 931-33 (1987). The fact that the Office of Investigation and the Office of Inspector and Auditor are investigating otherwise unidentified I allegations is insufficient basis for admitting a contention. ; l Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power l Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 857-858 (1986). Neither the Commission's Rules of Practice nor the pertinent statement of consideration puts an absolute or relative limit on the number of contentions that may be admitted to a licensing proceeding. See 10 CFR 6 2.714(a), (b); 43 Fed. ' Rea 17798, 17799 (April 26, 1978). Cleveland Electric Illumintino Co. (Perry Nuclear Power Plant, Units 1 and 2), y ALAB-706, 16 NP.C 1754, 1757 (1982). i l Pro se interveners are not held in NRC proceedings to a high j degree of technical compliance with legal requirements and, i accoreiingly, as long as parties are sufficiently put on notice ) as to what has to be defended against or opposed, specificity ] requirements will generally be considered satisfied. However, 1 that is not to suggest that a sound basis for each contention i is not required to assure that the proposed issues are proper for adjudication. Consolidated Edison Co. of N.Y. (Indian . Point, Unit 2) and Power Authority of the State of N.Y. (Indian Point, Unit 3), LBP-83-5, 17 NRC 134, 136 (1983). l Agency procedural requirements simply raising the threshold for admitting some contentions as an incidental effect of regulations designed to prevent unnecessary delay in the hearing process are reasonable. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1047 (1983). Should the subsequent issuance of the SER lead to a change in 4 the FSAR and thereby modify or moot a contention based on that document, that contention can be amended or promptly disposed of by summary disposition or a stipulation. However, the possibility that such a circumstance could occur does not provide a reasonable basis for deferring the filing of safety-related contentions until the Staff issues its SER. Catawba, suora, 17 NRC at 1049. NRC has the burden of complying with NEPA. The adequacy of the NRC's environmental review as reflected in the adequacy of a DES or FES is an appropriate issue for litigation in a licensing proceeding. Because the adequacy of those documents cannot be determined before they are prepared, contentions regarding their adequacy cannot be ' expected to be proferred at an earlier stage of the proceeding before the documents are available. That does SEPTEMBER 1988 PREHEARING MATTERS 64
19L '
.i 4
-L -
c p l '
. pq . 9'2.9.'5.1 J l(s .y not mean that no environmental contentions can be formulated before the Staff issues a DES or FES. While all environmental contentions.may, in a general sense, ultimately be challenges to the NRC's compl.iance with NEPA, factual aspects of particular issues can be raised before the DES is prepared.
Just as the submission of a safety-related contention based on the FSAR is not to be deferred simply because the Staff may
.later issue an SER requiring a change in'a safety matter, so too, the Commission expects that the filing of an environmen-tal concern based on the applicant's environmental report will not be deferred simply because the Staff may subsequently provide a different analysis in its DES. Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041,-1049 (1983). When information is not available, there will be good cause for. filing a contention based on that information promptly after the information becomes available. However, the five
-late-filing factors must be balanced in determining whether to 4 admit such a contention filed after the initial period for submitting contentions. Philadelphia Electric Co. (Limerick-Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 69 (1983). , 2.9.5.1 Pleading Requirements for Contentions m
In BPI v. AEC, 502 F.2d.424 (D.C. Cir. 1974), the U.S. Court of Appeals for the D.C. Circuit upheld, in part, the pleading requirements of 10 CFR s 2.714 governing petitions to intervene. Specifically, the Court ruled that: (a) the requirement that contentions be specified does not violate Section 189(a) of the Act; and (b) the requirement for a basis for contentions is valid. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 16 NRC 986, 993 (1982), citina, BPI v. Atomic Enerav Commission, 502 F.2d 424, 428-429 (D.C. Cir. 1974); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 591 n.5 (1985). A petitioner who satisfies the interest requirement will be granted intervention if he states at least one conten-tion within the scope of the proceeding with a proper factual basis. The Licensing Board has no duty to con-sider additional contentions for the purpose of determin-ing the propriety of intervention once it has found that at least one good contention is stated. flississiool Power & L4aht Co. (Grand Gulf Nuclear Station, Units 1
& 2), ALAB-130, 6 AEC 423, 424 (1973); Louisiana Power &
Liaht Co. (Waterford Steam Electric Station, Unit 3), MARCH 1988 PREHEARING MATTERS 65
S 2.9.5.1 ALAB-125, 6 AEC 371, 372 (1973); Duauesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973); Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1 & 2), LBP-76-10, 3 NRC 209, 220 (1976). : Although these cases predate amendments to 10 CFR 5 2.714, those amendments retain, and in fact specifically recite, the "one good contention rule." .S_e_q also Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25,14 NRC 616, 622 (1981); Public Service Co. of New Hamnshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 978 (1984); Georaia Epwer Co. (Vogtle Electric Generating Plant, . Units 1 and 2), , LBP-84-35, 20 NRC 887, 916 (1984); Philadelphia Electric Co. 1 (Limerick Generating Station, Unit 1), ALAB-833, 23 NRC 257, 261 (1986). Since a mandatory hearing is not required at the operating license stage, Licensing Boards should "take the utmost care" to assure that the "one good contention rule" is met in such a J situation because, absent successful intervention, no hearing 4 need be held. Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976). . See also Gulf States Utilities Co. (River Bend Station, Units l 1 & 2), ALAB-183, 7 AEC 222, 226 n.10 (1974). j Note that a State participating as an " interested State" under 10 CFR 6 2.715(c) need not set forth in advance any affirmative contentions of its own. Pro.iect Manaaement ' Corporation (Clinch River Breeder Reactor Plant), ALAB-354, l 4 NRC 383, 392-393 (1976). i Reasonable specificity requires that a contention include a , reasonably specific articulation of its rationale. If an ! applicant believes that it can readily disprove a contention admissible on its face, the proper course is to move for summary disposition following its admission, not to assert a lack of specific basis at the pleading stage. Carolina Power
& Liaht Co. and North Carolina Eastern Municinal Power Acency (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP Il9A, 16 NRC 2069, 2070-2071 (1982).
An intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information ' that could serve as the foundation for a specific con-tention. Neither Section 189a of the Atomic Energy Act nor Section 2.714 of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other arounds, CLI-83-19, 17 NRC 1041 MARCH 1988 PREHEARING MATTERS 66
8
/NY 9 2.9.5.1 (v)
-(1983); Duauesne Liaht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 412 (1984), citina, Catawba, suora, 16 NRC at 468. In Catawba, supra, the Board dealt with the question of whether the intervenor had provided sufficient information to support the admission of its contentions. An Appeal Board has rejected an applicant's claim that Catawbe imposes on an intervenor the duty to include in its conten-tions a critical analysis or response to any applicant or NRC Staff positions on t e issues raised by the contentions which might be found in the publicly available documentary material.
Such detailed answers to the positions of other parties go, not to the admissibility of contentions, but to the actual merits of the contentions. Florida Power and Liaht CL (St. Lucie Nuclear Power Plant, Unit 1), ALAB-893, 27 NRC 627, 629-31 (1988). The basis and specificity requirements are particularly important for contentions involving broad quality assurance and quality control issues. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 634 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986); Commonwealth Edison Co. (8 raid-wood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC (m 1732, 1740-41 (1985), rev'd and remanded on other arounds, V) CLI-86 8, 23 NRC 241 (1986), citina, Philadelphia Electric Co, (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 89 (1983). Nor is a Licensing Board authorized to admit conditionally, for any reason, a contention that falls short of meeting the specificity requirements. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 635 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986); Philadelphia Electric Co. (Limerick Generat-ing Station, Units 1 and 2), ALAB-819, 22 NRC 681, 725 (1985). The Braidwood Board permitted the intervenor to conduct further discovery and to amend its late-filed contention in order to comply with the basis and specificity requirements. The Board was willing to accommodate the intervenor because its contention involved potentially serious safety issues concerning the applicant's QA/QC program. Braidwood, suora, 21 NRC at 634-636, citina, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-84-31, 20 NRC 446, 509-511 (1984). According to the Board, its decision was not , a conditional admission of a contention in violation of the l Catawha ruling. The Board explained that it did reject the ! intervenor's late-filed contention, and that it properly exercised its discretion by giving the intervenor the opportunity to file an amended contention. Commonwealth i Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), Q LBP-85-20, 21 NRC 1732, 1737-39 (1985), rev'd and remanded, CLI-86-8, 23 NRC 241 (1986). The precedential value of the SEPTEMBER 1988 PREHEARING MATTERS 67
5 2.9.5.1 Licensing Board's allowance of further discovery and the sub- i sequent filing of an amended contention is in doubt because of the Commission's reversal of the t.icensing Board's admission of the contention for failure to satisfy the 10 CFR S 2.714(a)(1) standards for late-filed contentions. Braid-wood, suora, 23 NRC 241. See also Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470, 476-79 (1985) (Moore, J., dissenting). { , i An intervenor may initially submit a reasoned explanation for i raising a contention which later will be buttressed with fac- ; tual data after the parties engage in discovery. Common- ) wealth Edison Co. (Braidwood Nuclear Power Station, Units 1 ) and 2), LBP-85-ll, 21 NRC 609, 617 (1985), r__v'd e and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986), citing, Cleve-land Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 182 (1981). See ] General Public Utilities Nuclear Cord. (Three Mile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 (1986), citina, Houston Liahtina and Power Ch (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548 (1980). The degree of specificity with which the basis for a conten-tion must be alleged initially involves the exercise of judgment on a case-by-case basis. In passing on the admis-sibility of a contention, the Licensing Board need not reach the merits of the contention nor need the petition detail the evidence which will be offered in support of each contention. Nevertheless, it is incumbent upon interveners to frame their contentions with sufficient preciseness to show that the issues raised are within the scope of the proceeding. Commonwealth Edison comoany (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 687-688 (1980), , auotina, Philadelphia Electric Company (Peach Bottom Atomic l Power Station, Units 2 and 3), ALAB 216, 8 Ai.C 13, 20 (1974); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1269 (1983); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC 1732, 1742 (1985), rev'd and remanded on i other arounds, CLI-86-8, 23 NRC 241 (1986); General Public j Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), LBP-86-10, 23 NRC 283, 285 (1986). Contentions must give notice of facts which petitioners desire to litigate and must be specific enough to satisfy the l requirements of 10 CFR s 2.714. Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit No. 1), LBP-82-52, 16 NRC 183, 188-190, 193 (1982); see aenerally, CLI-81-25, 14 NRC 616 ! (1981) (guidelines for Board). I A simple reference to a large number of documents does not provide a sufficient basis for a contention. An intervenor must clearly identify and summarize the incidents being relied SEPTEMBER 1988 PREHEARING MATTERS 68 . 1
k r p' H
.)
u q 9 2.9.5.1 .
#U 'upon, and' identify and append specific portions'of the docu- '
ments. . Commonwealth Edison Co. (Braidwood. Nuclear Power Sta-tion,. Units 1 and 2), LBP-85-20, 21 NRC 1732, 1741 (1985),- rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986), citina, Tennessee Valley Authority (Browns Ferry Nu-clear. Plant,-Units 1 and 2), LBP-76-10, 3 NRC 200, 216 (1976). When a broad contention (though apparently admissible)- has been admitted at an early stage in the proceeding, y interveners should be required to provide greater specificity and to particularize bases for the contention when the information required to de so has been' developed. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-84-28,:20 NRC 129, 131-(1984). The Commission's Rules of Practice do not require that a contention be in the form of a detailed brief; however, a contention, alleging an entire plan to be inadequate in that
.it fails to consider certain matters, should be required to specify 'in some way each portion of the plan alleged to be inadequate. (pna Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 16 NRC 986, 993 (1982).
Originality of framing contentions is not a pleading require-Q tg ment. Commonwealth Edison Comp ny (Byron Nuclear ~ Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 689 (1980). . Extraneous matters such as preservation of rights, statements of intervention, and directives for interpretation which accompany an-intervenor's list of contentions will be disregarded as contrary to the Commission's Rules of Practice. Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 689-690 (1980). It is not essential that pleadings of contentions be tech-nically perfect. The Licensing Board would be reluctant to deny intervention on the basis of skill of pleading where it appears that the petitioner has identified interests which may be affected by a proceeding. Houston Liahtina and Power Compan.y (South Texas Project, Units 1 and 2), ALAB-549, 9 NRC 644, 650 (1979). It is neither Congressional nor Commission policy to ex-clude parties because the niceties of pleading were im-perfectly observed. Sounder practice is to decide issues on their merits, not to avoid them on technicalities. Consumers Power Company (Palisades Nuclear Plant), LBP-79-20, ! 10 NRC 108, 116-117 (1979); Vermont Yankee Nuclear Power j' Coro. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 860 (1987), aff'd in part on other arounds, ALAB-869, 26 NRC 13 (1987), reconsid. denied on other arounds, ALAB-876, 26 NRC 277 (1987). However, a party is bound by the literal terms of its own contention. SEPTEMBER 1988 PREHEARING MATTERS 69
l 5 2.9.5.1 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 709 (1985); Phila-delphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 208 (1986); Philadelphia Electric Co. - (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 242 (1986); Carolina Power and Liaht Co. and , North Carolina Eastern Municipal Power Aapgy (Shearon Harris j Nuclear Power Plant), ALAB-852, 24 NRC 532, 545 (1986); 1 Carolina Power and Liaht Co. and North Carolina Eastern l Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 816 (1986); Vermont Yankee Nuclear Power Corp, (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC l 277, 284 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-6, 27 NRC 245, 254 (1988), aff'd on other arounds, ALAB-892, 27 NRC 485 (1988). A contention must be rejected where: it constitutes an attack on applicable statutory requirements; it challenges the basic structure of the Commission's regulatory process or is an attack on the regulations; it is nothing more than a i generalization regarding the intervenor's views of what i applicable policies ought to be; it seeks to raise an issue I which is not proper for adjudication in the proceeding; or it does not apply to the facility in question; or it seeks to raise an issue which is not concrete or litigable. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1035 (1982), citina, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974); Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-75A, 18 NRC 1260, 1263 (1983); tietropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), LBP-83-76, 18 NRC 1266, 1268-1269 (1983). At the pleading stage all that is required for a contention to be acceptable for litigation is that it be specific and have a basis. Whether or not the contention is true is left to litigation on the merits in the licensing proceeding. Washinaton Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 551 n.5 (1983), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1193 n.39 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, j 22 NRC 681, 694 (1985). See yermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 23-24 (1987), reconsid, denied on other arounds, ALAB-876, 26 NRC 277 (1987). 1 SEPTEMBER 1988 PREHEARING MATTERS 70 1
f h
-V 9 2.9.5.3' In pleading for the admission of a contention, an intervenor I
is not required to prove the contention, but must allege at least some credible foundation for the contention. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449, 457,(1987). A basis for a contention is set forth with reasonable specificity if the applicants are sufficiently put on notice so that they will know, at least generally, what they. will have to defend against or oppose, and if there has been sufficient foundation assigned to warrant further exploration of the proposed contention. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 34 (1984), citina, Peach Bottom, suora, 8 AEC at 20-21; Common-wealth Edison Co. (Braidwood Nuclear Power Station. Units 1 and 2), LBP-85-20, 21 NRC 1732, 1742 (1985), rev'd and If.manded on other arounds, CLI-86-8, 23 NRC 241 (1986). 2.9.5.2 Requirement of Oath from Interveners Amendments to 10 CFR 9 2.714, effective on May 26, 1978, eliminated the requirement that petitions to intervene be filed under oath. , [( 2.9.5.3 Requirement of Contentions for Purposes of Admitting Petitioner as a Party 10 CFR 9 2.714 requires that there be some basis for the contentions set forth in the supplement to the petition to intervene and that the contentions themselves be set forth with particularity. In deciding whether these criteria are met, Licensing Boards are not to decide whether the proposed contentions are meritorious. A]abama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-183, 7 AEC 210, 216 (1974); Duauesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973). Section 2.714 does not require the petition to detail the evidence which will be offered in support of each contention. Mississippi Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 426 (1973); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1654 (1982); Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP-84-40A, 20 NRC 1195, 1198 (l'J84); y Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 933 (1987). The Appeal Board has prohibited Licensing Boards from dismissing contentions on the merits at the pleading stage even if demonstrably insubstantial. Washinoton Public Power Supply System (WPPSS Nuclear Project No. 1), LBP-83-66, 18 NRC 780,
, 789 (1983), citina, Houston Liahtina and Power Co. (Allens
! Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550 (1980).
' SEPTEMBER 1988 PREHEARING MATTERS 71
9 2.9.5.3 For a petitioner who supports a license application, all that need be initially asserted to fulfill the contention requirement of 10 CFR S 2.714 is that the application is l meritorious and should be granted. After contentions opposing the license application have been set forth, however, the Licensing Board is free to require interveners supporting the application to take a position on those contentions. Nuclear Enaineerina Co. . Inc. (Sheffield, Ill . Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 n.5 (1978). Where interveners have been consolidated, it is not necessary that a contention or contentions be identified to any one of the intervening parties, so long as there is at least one contention admitted per intervenor. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), 4 LBP-81-35, 14 NRC 682, 687 (1981). Despite the fact that a petitioner need not plead evidence in 1 setting forth the basis for its contentions, some sort of ! minimal basis indicating the potential validity of the l contention is required. Thus, for example, allegations that an amendment permitting a cooperative to become a co-owner of a nuclear plant will increase the possibility that nuclear waste will be stored in the cooperative's service area, and that demand for the nuclear facility in that service area will be stimulated are too remote and speculative to be considered as possible effects of the amendment proceeding. Conse-quently such allegations will not establish a petitioner's right to intervene. ILetroit Edison Co_, (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-ll, 7 NRC 381, 386-387,' aff'd, ALAB-470, 7 NRC 473 (1978). i The obligation to establish the actual existence of some factual support for the particular assertions that peti-tioners for intervention have advanced as the basis for their contentions need not be undertaken as a precondition to a l board's acceptance of a contention for the limited purpose of determining whether to allow intervention under 10 CFR ; 9 2.714. Rather, that obligation arises solely (1) in response to a subsequent motion of another party seeking to dispose of the contention summarily under 10 CFR s 2.749 for l want of a genuine issue of material fact; or (2) in the ! absence of such a motion, at the evidentiary hearing itself. Houston Liahtina and Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-590, 11 NRC 542, 547-551 (1980); Washinaton Public Power SuDDiv System (WPPSS Nuclear Project No. 1), LBP-83-66, 18 NRC 780, 789 (1983), citina, Allens Creek, suora,11 NRC at 550; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1271 n.6 (1983). . 4 SEPTEMBER 1988 PREllEARING MATTERS 72
f f 2.9.5.4-h The basis with reasonable specificity standard r.equires that an intervenor include in a safety contention a statement of the reason for his contention. This state-ment must either allege with particularity that an appli-cant is not complying with a specified regulation, or allege with particularity the existence and detail of a substantial safety issue on which the regulations cre silent. In the' absence of a " regulatory gap," the failure to allege a violation of the regulations or an attempt to advocate stricter requirements than those imposed by the regulations will result in a rejection of_ the contention, the latter as an impermissible collateral attack on the Commission's rules. l Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), LBP-82-106, 16 NRC 1649, 1656 (1982), citina, 10 CFR f 2.758. Prior to entertaining any suggestion that a contention not be admitted, the proponent of the contention must be given some chance to be heard in response. The petitioners cannot be required to have anticipated in the contentions themselves the possible arguments their opponents might raise as grounds for denying admission of those proffered contentions. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 525 (1979). Although the Rules of Practice do not explicitly provide for U) the filing of either objections to contentions or motions to , dismiss them, each presiding board must fashion a fair l procedure for dealing with such objections to contentions as are filed. The cardinal rule of fairness is that each side must be heard. ellens Creek, supra,11 NRC at 524. 2.9.5.4 Material Used in Support of Contentions While it may be true that the important document in evaluating the adequacy of an agency's environmental review is the agency's final impact statement, a petitioner for intervention may look to the Applicant's Environmental Report for factual material in support of a proposed contention. Pennsylvania Power & Licht Company (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 303 (1979). The specificity and basis requirements for a proposed contention under 10 CFR s 2.714(b) can be satisfied where the : l contention is based upon allegations in a sworn complaint filed in a judicial action and the applicable passages therein are specifically identified. This holds notwithstanding the fact that the allegations are contested. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1292-94 (1984). g An intervenor can establish a sufficient basis for a con-tention by referring to a source and drawing an assertion SEPTEMBER 1988 PREHEARING MATTERS 73 l-1 L_________________-__---
\
5 2.9.5.5 from that reference. Commonwealth Edison Co. (Braidwood , Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 NRC I 1732, 1740 (1985), rev'd and remanded on other arounds, CLI- l 86-8, 23 NRC 241 (1986), citina, Houston Lichtina and { Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ! ALAB-590, 11 NRC 542, 548-49 (1980). However, where a l contention is based on a factual underpinning in a document l which has been essentially repudiated by the source of that i document, a Licensing Board will dismiss the contention if the l intervenor cannot offer another independent source of I information on which to base the contention. Georaia Power l A (Alvin W. Vogtle Electric Generating Plant, Units 1 and j 2), ALAB-872, 26 NRC 127, 136 (1987). j l 2.9.5.5 Timeliness of Submission of Contentions ) l Not later than 15 days before a special prehearing conference j or, where no special prehearing conference is held,15 days prior to the holding of the first prehearing conference, the petitioner shall file a supplement to his petition to intervene which must include a list of his contentions. Additional time for filing the supplement may be granted based upon a balancing of the factors listed in 10 CFR 1 l s 2.714(a)(1). 10 CFR 9 2.714 (b); Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63,16 NRC 571, 576 (1982), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508 . (1982); Houston Liahtina & Power Co. (South Texas Project, d Units 1 and 2), LBP-82-91, 16 NRC 1364, 1366-67 (1982). Commission regulations direct that contentions be filed in advance of a prehearing conference. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 172 n.4 (1983), citina, 10 CFR s 2.714(b). In considering the admissibility of late-filed contentions, the Licensing Board must balance the five factors specified in 10 CFR S 2.714(a) for dealing with nontimely filings. Cincinnati Gas and Electric Company (William H. Zimmer Nuclear Station), LBP-79-22, 10 NRC 213, 214 (1979); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 725 (1985). A late filed contention must meet the requirements concerning good cause for late filing pursuant to 10 CFR s 2.714(a)(1). Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-90, 16 NRC 1359, 1360 (1982); li_ouston Liahtina & Power Co. (South Texas Project, Units 1 and 2), LBP-82-91, 16 NRC 1364, 1366-67 (1982); Lona Islad Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP 42, 18 NRC 112, 117 (1983). SEPTEMBER 1988 PREHEARING MATTERS 74 _ - _ _ _ 1
{' a
. j,-g l'2.9.5.5
,d The factors which must be balanced in determining whether tu admit a late filed contention pursuant to 10 CFR 9 2.714(a)(1) are: (1)' Good cause, if any,.for failure to file on time; (2) The availability of other means whereby the petitioner's interect will be protected;-(3) The extent to which the petitioner's participation may reasonably be-expected to assist in developing a sound record;:(4) The extent to which the petitioner's. interest will be represented by existing parties; (5) The extent to which'the petitioner's
- participation will broaden the issues or delay the proceeding.
'Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1141 (1983); Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-75A, 18 NRC 1260, 1261-1262 (1983), citina, Washinoton Public Power Sucoly System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167 (1983); Cleveland Electric l
Jlluminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-80, 18 NRC 1404, 1405 (1983); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 31 (1984), citina, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983); _C_onsumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1291 (1984), citina, Catawba, 192Ca, 17 NRC
'1041; Houston Liahtina and Powen_C_o 2 (South Texas Project, 9 Units 1 and 2), LBP-85-9, 21 NRC 524, 526 (1985); Commonwealth
(> Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 028 (1985), rev'd and remanded os other arounds, CLI-86-8, 23 NRC 241 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Plant), LBP-85-49, 22 NRC 899, 909, 913-14 (1985); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), LBP-86-36A, 24 NRC 575, 579-80 (1986), aff'd, ALAB-868, 25 NRC 912, 921 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 74 n.4 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-883, 27 NRC 43, 49 (1988). A Board must perform this balancing of the five lateness factors, even where all the parties to the proceeding have waived their objections and agreed, by stipulation, to the admission of the late-filed contention. Commonwealth Jdison Co. (Braidwet.i Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 251 (1986). See Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 (1985). The required balancing of factors is not obviated by the circumstances that the proffered contentions are those of a participant that has withdrawn from the proceeding. South Texas, suora, 16 NRC at 1367, citina, Guif States Utilities C_o2 o (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, (O 795-98 (1977). SEPTEMBER 1988 PREHEARING MATTERS 75
6 2.9.5.5 In balancing the' lateness factors, all factors must be taken into account; however, there is no requirement that the same weight be given to each of them. South Texas, supra, 16 NRC at 1367, citina, South Carolina Electric and Gas CA (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981); Cc7sumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC.1285, 1292 (1984). A Board is entitled to considerable discretion in the method it employs to balance the five lateness factors. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 631 (1985), rev'd and remanded on other arounds, 4 CLI-86-8, 23 NRC 241 (1986), citina, y_irainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342, 4 NRC 98, 107 (1976). When there are no other available means to protect a peti- J tioner's interests, that factor and the factor of the extent l to which other parties would protect that interest are { entitled to less weight than the other three factors enumer- ) ated in 10 CFR 9 2.714(a). Lona Island Liahtina Co. (Shoreham j Nuclear Power Station, Unit 1), LBP-83-42, 18 NRC 112, 118 (1983); Houston Lichtina and Power Co. (South Texas Project, ; Units 1 and 2), LBP-85-9, 21 NRC 524, 528 (1985), citina, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981); Common- i wealth Edison Co. -(Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 629 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241, 245 (1986); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 75 (1987). j Where good cause for failure to file on time has not been demonstrated, a contention may still be accepted, but the burden of justifying acceptance of a late contention on the basis of the other factors is considerably greater. Even where the factors are balanced in favor of admitting a late-filed contention, a tardy petitioner without a good excuse for lateness may be required to take the proceeding as he finds it. South Texas, suora, 16 NRC at 1367, 1368, citina, Nuclear , Fuel Services. Inc. and N.Y.S. Atomic and Space Development i puthority (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275, 276 (1975). Where good cause for a late filing is demonstrated, the other factors are given lesser weight. Midland, suora, 16 NRC at < 589; Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-75A, 18 NRC 1260, 1261 (1983); Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1292 (1984). In considering the extent to which the petitioner had shown good cause for filing supplements out-of-time, the SEPTEMBER 1988 PREHEARING MATTERS 76
r I y
,l 8) . 9 2.9.5.5
(/ - Licensing Board recognized that the petitioner was appear-ing pro se until'just.before the special.prehearing con-ference. Petitioner's early performance need not adhere rigidly to the Commission's standards and, in.this situation, the Board would not-weigh the good cause factor as heavily as it might otherwise. Florida Power and Liaht Comoany (Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-79-21, 10 NRC 183, 190 (1979). Withdrawal of one party has been held not to constitute good cause.for the delay of a petitioner in seeking to substitute itself for the withdrawing party, or, comparably, to adopt the withdrawing party's contentions. South Texas, supra, 16 NRC at 1369, citina, Gulf States Utilities Co. (River Bend Sta-tion,1 Units 1 and 2), ALAB-444, 6 NRC 760, 796-97 (1977). The same standards apply to an existing intervenor seeking to adopt the abandoned contentions of another intervenor as to a
" newly arriving legal stranger." South, Texas, supra, 16.NRC at 1369. However, if under the circumstances of a particular case, there is a sound foundation for allowing one entity to replace another, it can be taken into account in making the
. good cause" determination under 10 CFR 9 2.714(a). Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2),
ALAB-799, 21 NRC 360, 384 (1985), citina, River Bend, supra, p 6 NRC at 795.
% The appearance of a newspaper article is not sufficient grounds for the late-filing of a contention about matters that have been known for a long time. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
LBP-82-ll, 15 NRC 348 (1982). Comoare, LBP-82-S3, 16 NRC 196, 200-01 (1982) (Up-to-date journals demonstrate good cause) and LBP-82-15, 15 NRC 555, 557 (1982). An intervenor cannet establish good cause for filing a late contention when the information on which the contention is based was publicly available several months prior to the fil-ing of the contention. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 628-629 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986); MJ1&delphia Electric Co. (Limerick Genera-ting Station, Units 1 and 2), ALAB-828, 23 NRC 13, 21 (1986). The determination whether to accept a contention that was sus-ceptible of filing within the period prescribed by the Rules of Practice on an untimely basis involves a consideration of all five 10 CFR 9 2.714(a) factors and not just the reason, substantial or not as the case may be, why the petitioner did not meet the deadline. Duke Power Co. (Catawba Nuclear Sta-tion, Units 1 and 2), ALAB-687, 16 NRC 460, 470 (1982), vaca- , ted in part on other arounds, CLI-83-19, 17 NRC 1041 (1983). I SEPTEMBER 1988 PREHEARING MATTERS 77
W 2.9.5.5 The proponent of a late contention should affirmatively i address the five factors and demonstrate that, on balance, the contention should be admitted. Consumers Power Co. (Midlano Plant, Units 1 and 2), LBP-82-63,16 NRC 571, 578 (1982), citina, Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 NRC 350, 352 (1980). Section 189a of the Atomic Energy Act of 1954, as amended (" Atomic Energy Act" or "Act") does not require the Commission to givre G,at elling weight to the good cause factor in 10 CFR : 9 2.714(a)(1)(1) in determining whether to admit a late-filed i contention based on licensing documents which were not required to be prepared early enough to provide a basis for a timely-filed contention. The unavailability of those documents does not constitute a showing of good cause for admitting a late-filed contention wnen the factual predicate for that contention is available from other sources in a , timely manner. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1043 (1983). The institutional unavailability of a licensing-related document does not establish good cause for filing a contention late if taformation was publicly available early enough to provide the basis for the timely filing of that contention. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1045, 1048 (1983); Lona Island Liahtina , Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-42,18 , NRC 112, 117 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426, 436-37 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 84-85 (1985). Section 189a of the Act is not offended by a procedural rule that simply recog-nizes that the public's interest in an efficient administra-tive process is not properly accounted for by a rule of 4 automatic admission for certain late-filed contentions. I Catawba, suora, 17 NRC at 1046. See Duke Power Co. (Catawba ! Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 82 ) (1985), citina, Catawba, CLI-83-19, suora, 17 NRC at 1045-47. E EPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). 10 CFR 2.714(a)(1) requires that all five factors , enumerated in that regulation should be applied to late- l filed contentions even where the licensing-related i document, upon which the contentions are predicated, was not available w, thin the time prescribed for filing timely j contentions. Lona Island Liahtino Co. (Shoreham Nuc1 car l Power Station, Unit 1), LBP-83-42, 18 NRC 112, 116 (1983); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 82 (1985), citina, Catawba, CLI-83-19, suora, 17 NRC at 1045. The Commission has held that any refiled contention would have to meet the five-factor test of 10 CFR s 2.714(a)(1), if not timely filed, even if the specifics could not have been known earlier SEPTEMBER 1988 PREHEARING MATTERS 78 1
L o l'\ . 5 2.9.5.5
' ' L.)
because the documents on which they were based had not yet, been issued. Washinaton Public Power Sucoly Sy_ sis (WPPSS Nuclear Project No. 1), LBP-83-66, 18 NRC 780, 796 (1983),11.tDg, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041 (1983). i Even where an applicant does not comply with a standing order to serve all relevant papers on the Board _and parties, the admissibility of an intervenor's late-filed contention directed toward such papers must be determined by a balancing of all five factors. Philadelphia Electric Co. (Limerick
' Generating Station, Units 1 and 2), ALAB-765, 19 NRC 645, 657 4 (1984), overrulina in part, LBP-84-16,19 NRC 857, S68 (1984).
Under 10 CFR 9 2.714(a), good cause may exist. for a late-filed contention if it: (1) is wholly dependent upon the content of a-particular document; (2) could not_ therefore be advanced with any degree of specificity in advance of- the public ; availability of that document; and (3) is tendered with the requisite degree of promptness once that document comes into existence and is amenable to rejection on the strength of a balancing of all five of the late intervention factors set ' forth in that section. Public Service Co. of New Hampshin
- (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 172
~
n.4 (1983), citina, Duke Power Co.-(Catawba Nuclear Station, v Units 1 and 2), CLI-83-19, 17 NRC 1041, 1045 (1983); Kansas i Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-1, 19 NRC 29, 31 (1984). An intervenor who has previously submitted timely contentions may establish good cause for the late filing of amended contentions by showing that the amended contentions: restate pcrtions of the earlier timely-filed contentions; and were promptly filed in response to a Commission decision which stated a new legal principle. Texas Utilities Electric Co. j (Comanche Peak Steam Electric Station, Unit 1), LBP-86-36A, 24 NRC 575, 579 (1986), aff'd, ALAB-868, 25 NRC 912, 923 .. (1987). I A submitted document, while perhaps incomplete, may be enough to require contentions related to it to be filed promptly. q Philadelphia Electric Co. (Limerick Generating Station, Units J l and 2), LBP-83-39, 18 NRC 67, 69 (1983). The fact that a party may have delayed the filing of a contention in the hopes of settling the issue without l resorting to litigation in an adjudicatory proceeding does not constitute good cause for failure to file on time. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CL1-86-8, 23 NRC 241, 245 (1986). l SEPTEMBER 1988 PREHEARING MATTERS 79
P 9 2.9.5.5 The admissibility of a late-filed contention must be determined by a balancing of all five of the late inter-vention factors in 10 CFR 9 2.714(a). Public Service Co. of New Hamoshire (Sethrook Station, Units 1 and 2), CLI-83-23, 18 NRC 311, 312 (1983). When an intervenor does not show good cause for the non-timely submission of contentions, it must mcke a compelling. showing on the other four criteria of 10 CFR 9 2.714(a). Gjncinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 663 (1983), I citina, Mississioni Power and Liaht Co. (Grand Gulf Nuclear ! Station, Units 1 arid 2), ALAB-704,16 NRC 1725 (1982); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 629 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241, 244 (1986); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 76 (1987). With respect to the second factor of 10 CFR 9 2.714(a) (availability of other means of protecting late petitioners' interest) and the fourth factor (the extent to which late petitioners' interest will be represented by existing parties), the applicants in Zimmer, supra, 10 NRC at 215, claimed that the Staff would represent the public interest and by inference, late petitioners' interest as well. The Licens-ing Board ruled that although the Staff clearly represents the public interest, it carnot be expected to pursue all issues with the same diligence as an intervenor would pursue its own issue. Moreover, unless an issue was raised in a proceeding, the Staff would not attempt to resolve the issue in an adjudicatory context. Applicants' reliance on the Staff review gave inadequate consideration to the value of a party's pursuing the participational rights afforded it in an adjudicatory hearing. Zimmer, suora,10 NRC at 215; Cleveland dectric 1110minatina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-80, 18 NRC 1404, 1407-1408 (1983); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ' LBP-85-9, 21 NRC 524, 527-528 (1985); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 629 (1985), rev'd and remanded on other arounds, 4 CLI-86-8, 23 NRC 241 (1986). See Houston Liahtina and Power l Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC l 360, 384 n.108 (1985); .Washinaton Public Power Supoly System j (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1173-77 ) (1983); Carolina Power and Liaht Co. and North Carolina I' Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant), LBP-85-49, 22 NRC 899, 913-14 (1985). When considering the second factor of 10 CFR 9 2.714(a)(1), the availability of other means to protect an intervenor's interests, a Board may only inquire whether there are other forums in which the intervenor itself might protect its SEPTEMBER 1988 PREHEARING MATTERS 80
- _ _ _ _ _ _ _ _ _ _ __ l
i 7m $_2.9.5.5 L f - interests. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-9,-21 NRC 524, 528 (1985), citina, Houston Liahtino and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-671, 15 NRC 508,
~513 n.13 (1982).. ,
i Informal negotiations among parties, even under a Board's ' aegis, is not an adequate substitute for a party's right to , pursue its' legitimate interest in issues in formal adjudica- , tory hearings. Philadelphia Electric Co. (Limerick Generating ' Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1191 (1985). Late contentions filed by'a city did not overlap a contention ; of another intervenor which had already been accepted in the proceeding. The representative of a private party cannot be , expected to represent adequately the presumably broader- ! interests represented by a governmental body. Zimmer, supra, j 10 NRC at 216 n.4, citina, Nuclear Fuel Services. Inc. (West- ' Valley' Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975). In determining what other means are available to protect a petitioner's interests, a board will consider the issues sought to be raised, the relief requested,' and the stage of. l the proceeding. There may well be no alternative to providing i A a petitioner with an opportunity to participate in an i
^,]-
i adjudicatory hearing. However, in so_me circumstances, such as where the proposed contention deals with routinely filed post l licensing reports by an applicant, a 10 CFR 2.206 petition may be sufficient to protect the petitioner's interests. Philadel- ! ohia Electric Co. (Limerick Generating Station, Units 1 and i 2), ALAB-828, 23 NRC 13, 21-22 (1986). ! j A contention based on a Draft Environmental Statement (DES) 3 which contains no new information relevant to the contention, i lacks good cause for late filing. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-79, 16 NRC 1116, 1118 (1982). Before a contention is excluded from consideration, the j intervenor should have a fair opportunity to respond to I applicant's comments. When an intervenor files a late con-tention and argues that it has good cause for late filing because of the recent availability of new information, intervenor should have the chance to comment on applicant's objection that the information was available earlier. Interveners should be permitted to reply to the opposition to the admission of a late filed contention. The principle that a party should have an opportunity to respond is reciprocal. When intervenor introduces material that is entirely new, applicant will be permitted to respond. Due Ci process requires an opportunity to comment. If interveners V find that they must make new factual or legal arguments, they should clearly identify the new material and give an SEPTEMBER 1988 PREHEARING MATTERS 81 j
9 2.9.5.5 explanation of why they did not anticipate the need for the material in their initial filing. If the' explanation is satisfactory, the material may be considered, but applicant will be permitted to respond. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-89, 16 NRC 1355, 1356 (1982). The finding of good cause for the late filing of contentions is related to the total previous unavailability of informa-
~
tion. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 69 (1983). Ability to contribute to the record is relevant to the admissibility of late-filed contentions. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-83-37, 18 NRC 52, 56 n.5-(1983). An intervenor should specify the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony. Common-wealth Edison Co. (Braidwood Nuclear Power Station, Units 1 I and 2), CLI-86-8, 23 NRC 241, 246 (1986), citina, Mississiooi Power and Licht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982); Public Service Co. of l New Hamoshire (Seabrook Station, Units 1 and 2), LBP-87-3, 25 l NRC 71, 75 (1937). An intervenor need not present expert l witnesses or indicate what testimony it plans to present if it I has established its ability to contribute to the development ' of a sound record in other ways. Cleveland Electric Illumi- , natina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP- ! 83-80, 18 NRC 1404, 1408 n.14 (1983). See also Washinaton Public Power Supolv System (WPPSS Nuclear Project No. 3), ALAB-747, 18 NRC 1167, 1182-1183 (1983). Nevertheless, an intervenor should provide specific informa- ; tion from which a Board can infer that the intervenor will l contribute to the development of a sound record on the ) particular issue in question. An intervenor's bare assertion ) of past effectiveness in contributing to the development of a sound record on other issues in the current proceeding and in past proceedings is insufficient. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 85 (1985), citina, WPPSS, suora, 18 NRC at 1181, and Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC 1725, 1730 (1982). In determining an intervenor's ability to assist in the development of a sound record, it is erroneous to consider I the performance of counsel in a different proceeding. Common- l wealth Edison Co. (Braidwood Nuclear Power Station, Units 1 l and 2), CLI-86-8, 23 NRC 241, 246-47 (1986). Contra Texas i Utilities Electric Co. (Comanche Peak Steam Electric Station, 1 Unit 1), ALAB-868, 25 NRC 912, 926-27 (1987). SEPTEMBER 1988 PREHEARING MATTERS 82 : 1 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _J
I S 2.9.5.5 lD The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record is only meaningful when the proposed participation is on a significant, triable issue. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-30, 20 NRC 426, 440 (1984). The extent to which an interver.or may reasonably be expected to assist in developing a sound record is the most significant of the factors to be balanced vith respect to late-filed contentions, at least in situatJons where litigation of the contention will not delay the proceeding. Houston Liahtina and Power Co. (South Texas Pro.;ect, Units 1 and 2), LBP-85-9, 21 NRC 524, 528 (1985). l [ Given a proceeding initially naticed in 1978 for which a [ Special Prehearing Conference wes held early in 1979, any currently filed contentions wod d be untimely. That does not mean, after balancing the factors in 10 CFR 9 2.714(a) that I the untimeliness should bar admission of the contention. , l Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-83-37, 18 NRC 52, 55 (1983), citina, Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC l 571, 577 (1982). i l (o) A party seeking to add a new contention after the close of the record must satisfy both standards for admitting a late-filed contention set forth in 10 CFR s 2.714(a)(1) and the criteria, as established by case law, for reopening the record, Lqng Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1136 (1983), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-82-39, 16 NRC 1712, 1715 (1982), despite the fact that nontimely contentions raise matters which have not been pre-viously litigated. Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 663 (1983), citira, Diablo Canyon, supra,16 NRC at 1714-15. In evaluating the extent to which admission of a late-filed contention would delay the proceeding, a Board must determine i whether, by filing late, the intervenor has occasioned a j potential for delay in the completion of the proceeding that would not have been present had the filing been timely. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 927 (1987). Where the delay in filing contentions is great and the issues are serious, the seriousness of an issue does not imply that the party raising it is somehow forever exempted from the Rules of Practice. Cincinnati Gas and Electric Co. (William [_T H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC y) 640, 663 (1983). t SEPTEMBER 1988 PREHEARING MATTERS 83 (
i 9 2.9.5.6 The fifth criteria for admission of a late-filed contention requires a board to determine whether the proceeding, and not the issuance of a license or the operation of a plant, will be delayed. . Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 23' (1986). The admission of any new contention may broaden and delay the i completion of a proceeding by increasing the number of issues which must be considered. A Board may consider the following factors which may minimize the impact of the new contention: how close to the scheduled hearing date the new contention was filed; and the e'xtent of discovery which had been completed prior to the filing of the new contention. A Board will not admit a new contention which is filed so close to the scheduled hearing date that the parties would be denied an adequate opportunity to pursue discovery on the contention. i Commonwealth Edison Co. (Braidwood Nuclear Power Station, i Units 1 and 2), LBP-85-11, 21 NRC 609, 630-631 (1985), rev'd l and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986), i citina, South Carolina Electric and Gas Co. (Virgil C. Summer l Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 889 (1981). l A Board may refuse to admit a late-filed contention where it , determines that the contention is so rambling and disorganized that any attempt to litigate the contention would unduly ) broaden the issues and delay the proceeding. Texas Utilities i Generatina Co. (Comanche Peak Steam Electric Station, Units 1 ! and 2), LBP-83-75A, 18 NRC 1260, 1262-1263 (1983). l An intervenor's voluntary withdrawal of other, unrelated contentions may not be used to counterbalance any delays which might be caused by the admission of a late-filed contention. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-8, 23 NRC 241, 248 (1986). In evaluating the potential for delay, it is improper for the Board to balance the significance of the late-filed contention against the likelihood of delay. Such a balancing of factors is made in the overall evaluation of the five criteria for the admission of a late-filed contention. Braidwood, lucra, 23 NRC at 248. The Licensing Board's general authority to shape the course of a proceeding, 10 CFR s 2.718(e), will not be utilized as the foundation for the Board's acceptance of a late-filed contention. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20, 19 NRC 1285, 1290 (1984). 2.9.5.6 Contentions Challenging Regulations The assertion of a claim in an adjudicatory proceeding that a regulation is invalid is barred as a matter of law. SEPTEMBER 1988 PREHEARING MATTERS 84
, w 5 2.9.5.6
( Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2), ALAB-456, 7 NRC 63, 65 (1978). Contentions challenging the validity of NRC regulations are l inadmissible under the provisions of 10 CFR 9 2.758. Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 692-93 (1980); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-784, 20 NRC 845, 846 (1984); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 544 (1986). When a Commission regulation permits the use of a particular analysis or technique, a contention which asserts that a different analysis or technique should be utilized is in-admissible because it attacks the Commission's regulations. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-83-76, 18 NRC 1266, 1273 (1983). Although Commission regulations may permit a board in some situations to approve minor adjustments to Commission-prescribed standards, a bocrd will reject as inadmissible a contention which seeks major changes to those standards. Lo_rtg
- Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),
(mi ALAB-832, 23 NRC 135, 147-48 (1986) (interveners sought major . . G/ expansion of the emergency planning zone), rev'd in part, CLI-87-12, 26 NRC 383, 395 (1987) (the Appeal Board incorrectly admitted contentions which involved more than just minor adjustments to the emcrgency planning zone). See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 507 n.48 (1986). l Under 10 CFR & 2.758, the commission has withheld juris-diction from Licensing Boards to entertain attacks on the validity of Commission regulations in individual licensing proceedings except in certain "special circumstances." Potomac Electric Power Co. (Douglas Point Nuclear Generat-ing Station, Units 1 & 2), ALAB-218, 8 AEC 79, 88-89 (1974); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-85-33, 22 NRC 442, 444 (1985). 10 CFR @ 2.758 sets out those special circumstances which an intervenor must show to be applicable before a contention attacking the regulations will be admissible. Further, 10 CFR s 2.758 provides for certification to the Commission ; of the question of whether a rule or regulation of the Commission should be waived in a particular adjudicatory proceeding where an adjudicatory board determines that, as a result of special circumstances, a prima facie showing has been made that application of the rule in a particular (~% way would not serve the purposes for which the rule was
! ! adopted and, accordingly, that a waiver should be authorized.
U Detroit Edison Comoany (Enrico Fermi Atomic Power Plant, MARCH 1988 PREHEARING MATTERS 85
f I 5 2.9.5.7 Unit 2), LBP-78-37, 8 NRC 575, 584-585 (1978); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 546 (1986). Interveners are authorized to file a petition for a waiver of a rule, pursuant to 10 CFR S 2.758. It is not, however, enough merely to allege the existence of special circum-stances; such circumstances must be set forth with particu-larity. The petition should be supported by proof, in affidavit or other appropriate form, sufficient for the Licensing Board to determine whether the petitioning party has made a prima facie showing for waiver. Carolina Power & Liaht Co. and North Carolina Eastern Municioal Power. Aaency (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A,16 NRC 2069, 2073 (1982). I 2.9.5.7 Contentions Involving Generic Issue:: Licensing Boards should not accept in individual licensing cases any contentions which are or are about to become the subject of general rulemaking. Sacramento Municioal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 816 (1981); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 86 (1985). They appear to be permitted to accept " generic issues" which are not and are not about to become the subject of rulemaking, however. Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79 (1974). Seg Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-83-76, 18 NRC 1266, 1271 (1983). In order for a party or interested State to introduce such an issue into a proceeding, it must do more than present a list l of generic technical issues being studied by the Staff or point to newly issued Regulatory Guides on a subject. There must be a nexus established between the generic issue and the particular permit or application in question. To establish such a nexus, it must be shown that (1) the generic issue has safety significance for the particular reactor under review, and (2) the fashion in which the application deals with the matter is unsatisfactory or the short term solution offered to the problem under study is inadequate. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 773 (1977); Illinois Power Co. (Clinton Power Station, Unit No. 1), LBP-82-103, 16 NRC 1603, 1608 (1982), citina, River Bend, %n, 6 NRC at 773; Public Service Co. of New Hamoshire (Sean,sok Stat;un, Units 1 and 2), LBP-82-106, 16 NRC 1649, l 1657 (1982); Duauesne Liaht Co. (Beaver Valley Power Station, 1 Unit 2), LBP-84-6, 19 NRC 393, 418, 420 (1984), citina, River Bend, suora, 6 NRC at 773, and Viroinia Electric and Power Co. j (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 > NRC 245, 248 (1978). MARCH 1988 PREHEARING MATTERS 86
r X
't \
9 2.9.5.7 !=V. Parties interested in litigating unresolved safety l issues L, must do something more than simply offer a checklist of unresolved issues; they must show that the issues have some specific safety significance.for the reactor in question and that the application fails to resolve the matters satisfac-torily. Metropolitan Edison Co. (Three-Mile-Island Nuclear i' Station, Unit No. 1), ALAB-729, 17 NRC 814,.889 (1983), aff'd on other arounds, CLI-84-11, 20 NRC 1 (1984), citina, f&l.f States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 772-73 (1977).
- In Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-1A, 15 NRC 43 (1982), the Licensing Board rejected the applicant.'s contention that Doualas Point, supra, requires dismissal whenever there is pending rulemaking on a subject at issue. The Board dis-tinguished Doualas Point on several grounds: (1) In Doualas Point,.there were no existing regulations on the~ subject, while in Perry, regulations do exist and continue in force regardless of proposed rulemaking; (2) The issue in Pu ry - -
whether Perry should have an automated standby liquid control system (SLCS) given the plant's specific characteristics -- is far more specific than the issues in Doualas Point (i.e., nuclear waste disposal issues); (3) The proposed rules p recommend a variety of approaches on the SLCS issue requiring analysis'of the plant's situation, so any efforts by the Board V) to resolve the issue would contribute to the analysis; (4) The Commission did not bar consideration of such issues during the pendency of its proposed rulemaking, as it could have. Unless the Commission has specifically directed that conten-tions be dismissed during pendency of proposed rulemaking, no such dismissal is required. Where the Commission has explicitly barred Board considera-tion of the subject of a contention on which rulemaking is pending, the Board may not exercise jurisdiction over the contention. Cleveland Electric Illuminating Co. (Perry Nuclear Plant, Units 1 and 2), LBP-82-11,15 NRC 348, 350 (1982). Where the Commission has held its own decision whether to review an Appeal Board opinion in abeyance'pending its decision whether or not to initiate a further rulemaking, and has instructed the Licensing Boards to defer consideration of the issue, a contention involving the issue is unlitigable and inadmissible. Duauesne Licht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 417-18 (1984), citino, Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 AEC 79 (1974). A brief suspension of consideration of a contention will not be continued when it no longer appears likely that the Commission is about to issue a proposed rule on the matter j which was the subject of the contention. Cleveland Electric MARCH 1988 PREHEARING MATTERS 87
f t y 9 2.9.5.8 Illuminating Co. (Perry Nuclear Power Flant, Units 1 and 2), LBP-81-42, 14 NRC 842, 846-847 (1981). While a Licensing. Board should not accept contentions that are l or are about to become the subject of general rulemaking, where a contention has long since been admitted and is still f pending when notice of rulemaking is published, the intent of ' the Commission determines whether litigation of that conten-tion should be undertaken. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP 3 51, 14 NRC 896, 898 (1981), citina, Potomac Electric Power Co. 1 (Douglas Point Nuclear Generating Station, Units 1 and 2), j ALAB-218, 8 AEC 79 (1974). l i Before a contention presenting a generic issue can be ad-mitted, the intervenor must. demonstrate a specific nexus between each contention and the facility that is the subject of the proceeding. Cleveland Electric Illuminating Co2 (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-15,15 NRC 555, 558-59 (1982); Pacific Gas and Elect)ic Co. (Diablo Canyon l Nuclear Power Plant, Units 1 and 2), LEP 87-24, 26 NRC 159, i 165 (1987), aff'd on other arounds, ALAB-880, 26 NRC 449, l 456-57 n.7 (1987). I Contentions which constitute a general attack upon the methods used by the NRC Staff to insure compliance with regulations, without raising any issues specifically related O1! to matters under construction, are not appropriate for ' resolution in a particular licensing proceeding. CommonweaQh Edison Comoany (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683, 690 (1980). 2.9.5.8 Contentions Challenging Absent or Incomplete Documents At the contention formulation stage of the proceeding, an intervenor may plead the absence or inadequacy of documents or responses which have not yet been made available to the parties. The contention may be admitted subject to later refinement and specification when the additional information has been furnished or the relevant documents have been filed. Commonwealth EdQgn Comoany (Byron Nuclear Power Station, Units 1 and 2), LBP-80-30, 12 NRC 683 (1980). Note, however, that the absence of licensing documents does not justify admission of contentions which do not meet the basis and specificity requirements of 10 CFR s 2.714. That is, a non-specific contention may not be admitted, subject to later specification, even though licensing documents that would provide the basis for a specific contention are unavailable. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460 (1982), vacated in part on other arounds, CLI-83-19, 17 NRC 1041 (1983). SEPTEMBER 1988 PREHEARING MATTERS 88
7 u
,\
.l t
p f I 5 2.9.5.9 I L/ ' Rulings on contentions concerning undeveloped portions of emergency plans may be deferred. To admit such contentions would be to risk unnecessary litigation. But to deny the contentions would unfairly ignore the insufficient development of these portions. Fairness and efficiency stem to dictate that rulings on such contentions be deferred. .The objectives of such deferrals are to encourage negotiation, to avoid unnecessary litigation, and to make necessary litigation
^
as focused as possible. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC 1020, 1028-(1984). _QL. Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), ALAB-727,17 NRC 760, 775-76 (1983). When information is not available, there will be good cause for filing a contention based on that information promptly after the information becomes available. However, the five late-filing factors must be balanced in determining whether to admit such a contention filed after the initial period for submitting contentions. Philadelphia Electric 'Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18-NRC 67, 69 (1983); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1190 (1985). (A) v 2.9.5.9 Contentions re Adequacy of Security Plan The adequacy of a nuclear facility's physical security plan may be a proper subject for challenge by interveners in an operating license proceeding. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit Nos. I and 2), CLI-80-24, 11 NRC 775, 777 (1980); Consolidated Edison Co. (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947, 949 (1974). An intervenor may not introduce a contention which questions the adequacy of an applicant's security plan "against the effects of (a) attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person, or (b) use or deployment of weapons incident to U.S. defense activities." Commonwealth Edison Co. (Braidwood Nuclear Power Statior., Units 1 and 2), LBP-85-27, 22 NRC 126, 135-36, 138 (1985), gitina, 10 CFR s 50.13. Where an intervenor seeking to challenge an applicant's security plan does not produce a qualified expert to review the plan and declines to submit to a protective order, its vague contentions must be dismissed for failure to meet conditions that could produce an acceptably specific con-tention. Duke Power Co. (Catawba Nuclear Station, Units 1 and O O 2), LBP-82-51, 16 NRC 167, 177 (1982). SEPTEMBER 1938 PREHEARING MATTERS 89
6 2.9.5.10 j 2.9.5.10 Defective Contentions l l Where contentions are defective, for'whatever reason, Li-censing Boards have no duty to recast them to make them acceptable under 10 CFR s 2.714. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 406'(1974). However, although a Licensing Board is not required to recast contentions to make them acceptable, it also is not precluded ! from doing so. Pennsylvania Power & Liaht Co. (Susquehanna l Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, l 1 295-296 (1979). 2.9.5.11 Discovery to Frame Contentions- ! A petitioner is not entitled to discovery to assist him in framing the contentions in his petition to intervene. Northern States Power Co. (Prairie Island Nuclear Generating ; Plant, Units 1 & 2), ALAB-107, 6 AEC 188,192, reconsid. den., ' ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973). 2.9.5.12 Stipulations on Contentions ! i (RESERVED) 2.9.5.13 Appeals of Rulings on Contentions Appellate review of a Licensing Board ruling rejecting some but not all of a party's contentions is available only at the end of the case. Ro_r_thern States Power Co. (Tyrone Energy Park, Unit 1), ALAB-492, 8 NRC 251, 252 (1978). An Appeal Board may grant interlocutory review of a Licensing Board's rejection of one or more contentions only if the j effect of the rejection is to wholly deny a petition to intervene. Pacific Gas and Electric Co. (Diablo Canyon l Nuclear Power Plant, Units 1 and 2), ALAB-873, 26 NRC 154, f 155 (1987), citina, 10 CFR s 2.714a. , l Appeal Boards grant Licensing Boards broad discretion in i balancing the five factors which make up the criteria for I late-filed contentions listed in 10 CFR s 2.714(a)(1). , However, an Appeal Board may overturn a Licensing Board's decision where no reasonable justification can be found for j the outcome that is determined. Philadelphia Electric Co. - (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183, 1190 (1985), citina, Washinaton Public Power Supolv System (WPPSS Nuclear Project 3), ALAB-747, 18 NRC 1167, 1171 (1983); Philadelphia Electric Co. (Limerick Generating f! Station, Units 1 and 2), ALAB-828, 23 NRC 13, 20-21 (1986) i (abuse of discretion by Licensing Board). See Public Service 1 Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB- l 865, 25 NRC 430, 443 (1987); Texas Utilities Electric Co. l SEPTEMBER 1988 PREHEARING MATTERS 90 j i _ _ _ _ - -_ -. I
IT
.s._ 9 2.9.7
-(Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25
()
- NRC 912, 922 (1987).
2.9.6 Conditions on Grants of Intervention 10 CFR @ 2.714(e) empowers a Licensing Board to conditi,on an order granting intervention on such terms as may serve the purposes of restricting duplicative or repetitive evidence and of having common interests represented by a single spokesman. 10 CFR @ 2.715a deals with the general authority to consoli-date parties in construction permit or operating license proceedings. In a license amendment proceeding, there is no good reason why the provisions of Section 2.715a cannot be looked to in exercising the power ' granted by Section 2.. 4(e), which section applies to all adjudicatory proceedings. Dukq Power Company (Oconee Nuclear Station and McGuire Nuclear Station), ALAB-528, 9 NRC 146, 150 n.9 (1979). 2.9.7 Appeals of Rulings on Intervention l The regulations contain a special provision allowing an interlocutory appeal from a Licensing Board order on petitions to intervene. The appellant must file a notice to appeal and supporting brief within 10 days after service of the Licensing m Board's order. 10 CFR @ 2.714a. Other parties may file briefs in support of or in opposition to the appeal within 10 (V ) days of service of the appeal. ; An Appeal Board will not review the grant or denial of an intervention petition unless an appeal has been taken under 10 CFR @ 2.714a. Once the time prescribed in that Section for perfecting an appeal has expired, the order below becomes final. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), ALAB-713, 17 NRC 83, 84 n.1 (1983). It is settled under the Commission's Rules of Practice that a petitioner for intervention may not take an inter-locutory appeal from Licensing Board action on his peti-tion unless that action constituted an outright denial of the petition. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 384 (1979); Puaet Sound Power and Liaht Co. (Skagit/Hanford Nuclear Power Project, Units 1 and 2), , ALAB-712, 17 NRC 81, 82 (1983). A petitioner may appeal ! only if the Licensing Board has denied the petition in its entirety, i.e., has refused the petitioner entry into the case. A petitioner may not appeal an order admitting petitioner but denying certain contentions. 10 s CFR @ 2.714(b); Power Authority of the State of New York ' n (Greene County Nuclear Plant), ALAB-434, 6 NRC 471 (1977); Gulf States Utilities Co. (River Bend Station, Units 1 & (V) 2), ALAB-329, 3 NRC 607 (1976); Duke Power Co. (Perkins SEPTEMBER 1988 PREHEARING MATTERS 91
= _ _ _ ._. ___
I S 2.9.7 Nuclear Station,-Units 1, 2 & 3), ALAB-302, 2 NRC 656 (1975); Puerto Rico Water Resources Authority (North Coast ; Nuclear Plant, Unit 1), ALAB-286, 2 NRC 213 (1975); Portland ! General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-273, 1 NRC 492, 494 (1975); Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-269,1 NRC l
.411 (1975); Philadelphia Electric Co. (Fulton Generating Station, Units 1 & 2), ALAB-206, 7 AEC 841 (1974). .
A Licensing Board's failure, after a reasonable length of time, to rule on a petition to intervene is tantamount to a denial of the petition. Where the failure of the Licensing Board to act is both unjustified and prejudicial, the petitioner may seek interlocutory review of the Licensing Board's delay under 10 CFR 9 2.714a, which provides for interlocutory review of denials of petitions to intervene. . Detroit Edison Company (Greenwood Energy Center, Units 2 & 3), l ALAB-376, 5 NRC 426 (1977). A State seeking to participate as an " interested State" under l 10 CFR 6 2.715(c) may appeal an order barring such participa- ! tion. However, the State's special status does not confer any l right to seek review of an order which allows the State to j participate but excludes an issue which it seeks to raise. ' Gulf States Utilities Co. (River Bend Station, Units 1 & 2), i ALAB-329, 3 NRC 607 (1976). Unlike a private litigant who must file at least one accept-able contention in order to be admitted as a party to a proceeding, an interested State may participate in a proceed-ing regardless of whether or not it submits any acceptable contentions. Thus, an interested State may not seek inter-locutory review of a Licensing Board rejectica of any or all of its contentions because such rejection will not prevent an interested State from participating in the proceeding. Public ; Service Co. of New Hampshire (Seabrook Station, Units 1 and ' 2), ALAB-838, 23 NRC 585, 589-90 (1986). The applicant, the Staff and any party other than the petitioner can appeal an intervention order only on the ground that the petition should have been denied in whole. 10 CFR 2.714a(c). An appeal from an intervention order carries with it a mandatory briefing requirement. Failure to file a brief will result in dismissal of the appeal. Mississiooi Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-140, 6 AEC 575 (1973). For a reaffirmation of the established rule that an appeal concerning an intervention petition must await the ultimate grant or denial of that petition, see Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-586, 11 NRC 472 (1980); Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-472, 7 NRC 570, 571 (1978). In SEPTEMBER 1988 PREHEARING MATTERS 92
1
.g 4 9 2.9.7.lE ' () this vein, a, Licensing Board order which determines that petitioner has met the " interest" requirement for:interven-;
tion'and that' mitigating. factors overcome the untimeliness of the petition but does not rule on.whether petitioner has met the " contentions". requirement is not a final disposition of the petition to. intervene. Cincinnati Gas'& Electric Comoany-o (William H. Zimmer Nuclear Power Station),-ALAB-595, 11 NRC 860,864.(1980); Greenwood, suora; Philadelphia Electric Co. (Limerick-Generating Station, Unit 1), ALAB-833,-23 NRC.257, ' 260-61 (1986).- similarly, the action of.a Licensing Board in provisionally ordering a hearing and preliminarily ruling on petitions for leave to intervene is not appealable under 10 CFR 5 2.714aLin a situation where the Board cannot rule on contentions and the need for.an evidentiary hearing until after the special prehearing conference required under 10 CFR s 2.751a and where the petitioners denied intervention may qualify on refiling. l ' Consumers Power Company-(Midland Plant, Units 1 &-2), LBP-78-27, 8 NRC 275, 280 (1978). I: [ While the regulations do not explicitly provide for Com-l mission review of decisions on intervention, the Commission l has entertained appeals in this regard and review by the L Commission apparently may be sought. Florida Power & Licht [% - [_o2 0 (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939 (1978). With regard to briefing on appeals,10 CFR S 2.714a does not-authorize an appellant to file a brief in reply to parties' briefs in opposition.to the appeal. Rather, leave to file a reply brief must be obtained. Nuclear Enoineerina Co. l (Sheffield, Ill. Low-Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 745 n.9 (1978). l 2.9.7.1 Standards for Reversal of Rulings on Intervention A Licensing Board has wide latitude to permit the amendment of defective petitions prior to the issuance of its final order on intervention. The Board's decision to allow such amendment l will not be disturbed on appeal absent a showing of gross abuse of discretion. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, 194 (1973). A Licensing Board's determination as to the " personal in-terest" of a petitioner will be reversed only if it is ; irrational. Duauesne Liaht Co. (Beaver Valley Power Station, i Unit 1), ALAB-109, 6 AEC 243, 244 (1973); Prairie Island, supra. Similarly, a Licensing Board's determination that good i cause exists for untimely filing will be reversed only for an abuse of discretion. USERDA (Clinch River Breeder SEPTEMBER 1988 PREHEARING MATTERS 93 L LL___ --__ _ __ - . _ . - -_ -
L 9 2.9.8 , Reactor Plant), ALAB-354, 4 NRC 383 (1976); Virainia Electric
& Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98 (1976); Public Service Co. of Indiana (Marble Hill Nuclea'r Generating Station, Units 1 & 2), ALAB-339, 4 NRC 20 l (1976); Gulf States Utilities Co. (River Bend Station, Units 1 i
& 2), ALAB-329, 3 NRC 607 (1976). l i
The principle that Licensing Board determinations on the sufficiency of allegations of affected interest will not be I overturned unless irrational presupposes that the appropriate ; legal standard for determining the " personal interest" of a l petitioner has been invoked. Virainia Electric and Power I Company (North Anna Nuclear Power Station, Units 1 and 2), j ALAB-522, 9 NRC 54, 57 n.5 (1979). l 2.9.8 Reinstatement of Intervenor After Withdrawal A voluntary withdrawal of intervention is "without prejudice" in that it does not constitute a legal bar to the later i reinstatement of the intervention upon the intervenor's showing of good cause. Mississioni Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), LBP-73-41, 6 AEC 1057 (1973). The factors to be considered in the good cause determination are generally the same as those considered under < 10 CFR 9 2.714(a) with primary emphasis on the delay of the , proceeding, prejudice to other parties and adequate protection of the intervenor's interests. Grand Gulf, suora. 2.9.9 Rights of Interveners at Hearing In an operating license proceeding (with the exception of certain NEPA issues), the applicant's license application is in issue, not the adequacy of the Staff's review of the application. An intervenor in an operating license proceeding is free to challenge directly an unresolved generic safety issue by filing a proper contention, but it may not proceed on l the basis of allegations that the Staff has somehow failed in its performance. Concomitantly, once the record has closed, a i generic safety issue may be litigated directly only if standards for late-filed contentions and reopening the record are met. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). I i The rules cannot legitimately be read as requiring that, once an intervenor is represented by counsel, that counsel be the party's sole representative in the proceeding. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-28,17 NRC j 987, 994 (1983). ! ( When a party is permitted to enter a case late, it is ; expected to take the case as i' finds it. It follows MARCH 1988 PREHEARING MATTERS 94 I l
'4 j..
p$ $ 2.9.9 that when,a party that has participated in a case all along
- simply changes representatives
- in midstream,- knowledge of the-L . matters already heard and received into evidence is imputed to-L .it. Metropolitan' Edison Co.' (Three Mile Island. Nuclear..'
f Station, Unit 1), ALAB-772, 19 NRC-1193, 1246 (1984), rey'_d b in oart on other arounds, CLI-85-2, 21 NRC 282 (1985). An intervenor's status as a party 11n a proceeding does.not of.- itself make it a spokesman for others. : Public Service Co. of L
< New Hamoshire (Seabrook Station, Units.1 and 2), LBP-86-34,-24 NRC 549,- 550 n.1 (1986), Aff'd, ALAB-854, 24 NRC 783.(1986),
citina, Puaet Sound Power and Liaht Co. -(Skagit Nuclear Power i Project, Units 1 and 2),.ALAB-556, 10.NRC 30, 33 (1979). Under principles' enunciated in Prairie Island,'an intervenor may ordinarily conduct-additional cross-examination and submit: proposed factual and legal. findings on contentions sponsored by others. Northern States Power Co. '(Prairie' Island Nuclear Generating Plant, Units 1.and 2), ALAB-244,'8 AEC 857, 863,.
~867-68 (1974), aff'd in certinent part, CLI-75-1, 1 NRC 1 (1975). However, that does not elevate'the intervenor's status to that of co-sponsor of the contentions.- The e Commission's regulations require that, at the outset of a case, each intervenor submit:"a list of.the contentions which O it seeks to have litigated." 10 CFR 6 2.714(b). It follows-from this that one intervenor may not introduce affirmative evidence on issues raised by another intervenor's contentions.
Prairie' Island, inn, 8 AEC at 869 n.17; Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 383 n.102 (1985). Contentions .left without a sponsor. due to the withdrawal of one intervenor may be adopted by another intervenor upon satisfaction of the five-factor balancing test ordinarily used to determine whether to grant a non-timely request for intervention, or to permit the introduction of additional contentions by an existing intervenor after the filing date. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 381-82 (1985). M 10 CFR 69 2.714(a)(1),(b). For a detailed discussion of the five-factor test, M Sections 2.9.3.3.3 and 2.9.5.5. A contention which has been joined by two joint interveners may not be withdrawn without the consent of both joint interveners. Either of the joint interveners may litigate the contention upon the other intervenor's withdrawal of sponsor-ship for the contention. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-22, 24 NRC 103, 106 (1986). MARCH 1988 PREHEARING MATTERS 95
I I An intervenor in an operating license proceeding may not proceed on the basis of allegations that the Staff has somehow failed in its performance; at least when the evidence shows that the alleged inadequate Staff review did not result in inadequacies in the analyses and performance of the applicant. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 565 n.29 (1983), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728,17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). 2.9.9.1 Burden of Proof A licensee generally bears the ultimate burden of proof. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-697, 16 NRC 1265, 1271 (1982), citina, 10 CFR
@ 2.732. But interveners must give some basis for further inquiry. Three Mile Island, suora,16 NRC at 1271, citina, Pennsylvania Power and Liaht Co. and Alleahany Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 340 (1980). See Section 3.7.
An intervenor has the burden of going forward with respect to issues raised by his contentions. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975); Commonwealth Edison Co. (Zion Station, Units I 1 & 2), ALAB-226, 8 AEC 381, 388-89 (1974). For a more ! detailed discussion, see Section 3.7.2. j, 2.9.9.2 Presentation of Evidence 2.9.9.2.1 Affirmative Presentation by Intervenor/ Participants ; An intervenor may not adduce affirmative evidence on an issue not raised by him unless and until he amends his contentions. I Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 869 n.17, reconsid. iel., ALAB-252, 8 AEC 1175 (1974), aff'd, CLI-75-1, 1 NRC 1 (1975). This rule does not apply to an interested State participating under 10 CFR @ 2.715(c). Such a State may produce evidence on issues not raised by it. Proiect Manaaement Coro (Clinch River Breeder Reactor), ALAB-354, 4 NRC 383, 392-93 (1976). i 1 2.0.9.2.2 Consolidation of Intervenor Presentations A Licensin9 Board, in permitting intervention, may consol-Idate interveners for the purpose of restricting duplica- ; tive or repetitive evidence and argument. 10 CFR 9 2.714(e). In addition, parties with substantially MARCH 1988 PREHEARING MATTERS 96 l
y 4 1
'o[ 'i 9 2.9.9.2.2 IG ~
similar interests and contentions may be' ordered to con- { solidate their presentation of evidence, ' cross-examination and .j participation in general pursuant to 10 CFR s 2.715a. An < order consolidating the participation of one party with the. others may not be appealed prior to the conclusion of the proceeding. Eqrtland General Electric Co. -(Trojan Nuclear
, Plant), ALAB-496, 8 NRC 308-309 (1978); Gulf States Utilities h (River Bend Station, Units 1 and 2), LBP-83-52A,-18 NRC 265, 272-73 (1983),. sit 1Dg, Statement of Policy on Conduct of--
Licensina Proceedings, CLI-81-8,-13 NRC 452, 455 (1981).. See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595, 1601'(1985). ' The NRC Rules of Practice permit the consolidation of interveners, but only where those parties have substantially l the same interest that may be affected by-the proceeding and where consolidation would not prejudice the rights of any party. Consumers ' Power Co. (Midland Plant, Units 1 and 2), LBP-83-28, 17 NRC 987, 993 (1983). f Only parties to a Commission licensing proceeding may be consolidated. Petitioners who are not admitted as parties may ' not be consolidated for the purposes of participation as a single party. 10 CFR f 2.715a; Commonwealth Edison Co. ( (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 623 (1981). Where interveners have filed consolidated briefs they may be treated as a consolidated party; one intervenor may be appointed lead intervenor for purposes of coordinating responses to discovery, but discovery requests should be served on each party intervenor. It is not necessary that a contention or contentions be identified to any one of the intervening parties, so long as there is at least one contention admitted per intervenor. Cleveland Electric
~
Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-35, 14 NRC 682, 687 (1981). l The Commission has issued a policy statement relating to consolidation of interveners and the conduct of licensing proceedings. Pursuant to that Commission guidance, consolida-tion should not be ordered when it will prejudice the rights of any intervenor; however, in all appropriate cases, single, lead interveners should be designated to present evidence, conduct cross-examination, submit briefs, and propose findings of fact, conclusions of law, and argument. 'Except where other interveners' interests will be prejudiced or upon a showing that the record will be incomplete, those activities should not be performed by such other interveners. Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 455 (1981). MARCH 1988 PREHEARING MATTERS 97 I
S 2.9.9.3 2.9.9.3 Cross-Examination by Interveners An intervenor may engage in cross-examination of witnesses dealing with issues not raised by him if the intervenor has a discernible interest in resolution of those issues. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-75-1, 1 NRC 1 (1975); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), l ALAB-244, 8 AEC 857, 867-68 (1974); Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-85-2, 21 NRC 24, 32 (1985), vacated as moot, ALAB-842, 24 NRC 197 (1986). Licensing Boards must carefully restrict and monitor such cross-examination, however, to avoid repetition. Prairie Island, supra,1 NRC 1. In general, the intervenor's cross-examination may not be ; used to expand the number or boundaries of contested issues. ' Prairie Island, supra, 8 AEC 857. For a further discussion, j sgg Section 3.13.1. ]
)
2.9.9.4 Intervenor's Right to File Proposed Findings An intervenor may file proposed findings with respect to all issues whether or not raised by his own contentions. Northern , States Power Co. (Prairie Island Nuclear Generating Plant, i Units 1 & 2), ALAB-244, 8 AEC 857, 863 (1974); Consumers Power i Co. (Midland Plant, Units 1 and 2), LBP-85-2, 21 NRC 24, 32 (1985), vacated as moot, ALAB-842, 24 NRC 197 (1986). A Board in its discretion may refuse to rule on an issue in l its initial decision if the party raising the issue has not I filed proposed findings of fact and conclusions of law. I Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 457 (1981). The right to file proposed findings of fact in an adjudi-cation is not unlawfully abridged unless there was prejudicial error in refusing to admit the evidence that would have been the subject of the findings. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-82-11, 15 NRC 1383, 1384 (1982). 2.9.9.5 Attendance at/ Participation in Prehearing Conferences / Hearings An intervenor seeking to be excused from a prehearing conference should file a request to this effect before the conference date. Such a request should present the justifica-tion for not attending. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 190-91 (1978). For a discussion of a party's duty to attend hearings, gg Section 3.6. MARCH 1988 PREHEARING MATTERS 98
- m. . - - - - , _ - - - . - - . - - - - . , - - , , _ , - . - - - . - - - - - . . - _ _ , -
L 5 2.9.9.6 ! W' Where an intervenor indicates its intention not to parti-- ! cipate in the evidentiary hearing, the intervenor may be held in default and its admitted contentions dismissed although the Licensing Board will review those contentions to assure that < they do not raise serious matters that must be considered. l Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit i 2), LBP-76-7, 3 NRC 156, 157 (1976). An appropriate sanction for willful refusal to attend a Prehearing Conference is dismissal of the petition for intervention. In the alternative, an appropriate sanction is the acceptance of the truth of all statements made by the applicant or the NRC Staff at the Special Prehearing Con-ference. Application of that sanction would also result in dismissal. Wisconsin Electric Power Co..(Point Beach Nuclear Plant, Unit 1), LBP-82-108,16 NRC 1811, ~1817 (1982). A Licensing Board is not expected to sit idly by when parties refuse.to comply with its orders. Pursuant to 10 CFR 9 2.718, a Licensing Board has the power and the duty to maintain l order, to take appropriate action to avoid delay and to regulate the course of the hearing and the conduct of the participants. Furthermore, pursuant to 10 CFR s 2.707, the Q refusal of a party to comply with a Board order relating to Q its appearance at a proceeding constitutes a default for which a Licensing Board may make such orders in regard to the failure as are just. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-Il5, 16 NRC 1923, 1928 (1982). A party may not be heard to complain that its rights were unjustly abridged after having purposefully refused to participate. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1935 (1982). Dismissal of a party is the ultimate sanction applicable to an intervenor. On the other hand, where a party fails to carry out the responsibilities imposed by the fact of its participa-tion in the proceeding, such a party may be found to be in default and its contentions dismissed. Consumers Power Co. (Palisades Nuclear Power Facility), LBP-82-101, 16 NRC 1594, , 1595-1596 (1982), citina, Boston Edison Co. '(Pilgrim Nuclear Generating Station, Unit No. 2), LBP-76-7, 3 NRC 156 (1976). 2.9.9.6 Pleadings and Documents of Interveners An intervenor may not disregard an adjudicatory board's direction to file a memorandum without first seeking leave of the board. Public Service Co. of New Hampshire (Sea-brook Station, Units 1 & 2), ALAB-488, 8 NRC 187 (1978). MARCH 1988 PREHEARING MATTERS 99
9 2.9.10 2.9.10 Cost of Intervention 2.9.10.1 Financial Assistance to Interveners The question of funding of interveners' participation was addressed by the Commission in jiuclear Reaulatory Commission (Financial Assistance to Participants in Commission Proceed-ings), CLI-76-23, 4 NRC 494 (1976). Therein, the Commission stated that it would not provide funding for participants in licensing, enforcement or antitrust proceedings and that it also would not provide such funding for participants in rulemaking proceedings as a general proposition, although it would attempt to provide funds for qualified GESM0 partici-i pants. ! Part of the basis for the Commission's determination was an opinion issued by the Comptroller General. Noting that the i Commission lacks express statutory authority to provide funds, { the opinion stated that the Commission might nevertheless i provide funds to a participant if the Commission determines that: (1) it cannot make the necessary licensing or rulemaking determinations unless financial assistance is extended to the ; participant who requires it; and (2) the funded participation I is " essential" to the Commission's disposition of the issues. I The Commission found that it could not make these deter-minations with respect to participants in licensing, enforce-ment, antitrust and general rulemaking proceedings. On the j other hand, due to the singular importance of the GESM0 { proceedings, the Commission would seek to provide financial assistance to GESMO participants who applied by a specified deadline and who qualified for such assistance. Subsequent to CLI-76-23, the Comptroller General issued an opinion on funding of interveners in FDA proceedings. That l ruling was a major shift from the opinion issued by the l Comptroller General in the NRC case in that the test set out therein was not whether intervention was " essential" but whether it could " reasonably be expected to contribute substantially to a full and fair determination" of the pending matter. In 1976, the Comptroller General issued two decisions in which he held that " funding of interveners in the absence of specific Congressional authorization was permissible where participation by the intervenor is required by statute or intervention is necessary to assure adequate representation of opposing points of view and the inter-venor is indigent or otherwise unable to bear the finan-cial cost of participation." However, this position was overruled by the Second Circuit Court of Appeals, which held that an agency could not fund participants in its proceedings without a specific grant of authority from the Congress. Greene County Plannina Board v. FPC, 559 MARCH 1988 PREHEARING MATTERS 100
.7 9 2.9.10.1
(_) F.2d 1227 (2d Cir. 1977),_c_ert. denied, 434 U.S. 1086 (1978). On this basis, in part, funding for interveners was denied in , Exxon Nuclear Company. Inc. (Low Enriched Uranium Exports to - EURATOM Member Nations), CLI-77-31, 6 NRC 849 (1977). The Commission is in favor of funding interveners but Congress. has precluded such funding for fiscal year 1980. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-80-19, 11 NRC 700 and CLI-80-20, 11 NRC 705 (1980). Authori-zation acts for subsequent fiscal years have explicitly prohibited NRC from utilizing appropriated monies to fund interveners. Sgg Rochester Gas and Electric Corp. (R.E. Ginna Nuclear Plant, Unit 1), LBP-83-73, 18 NRC 1231, 1239 (1983). A claim for funding by intervenor for past participation is precluded because the Commission has determined not to initiate a program to provide funding for interveners. Puerto Rico Power Authority (North Coast Nuclear Plant, Unit 1), LBP-80-15, 11 NRC 765, 767-768 (1980). Some financial assistance was made available to interveners for procedural matters, such as free transcripts in adjudica-tory proceedings on an application for a license or an amend-(3 ment thereto in prior Commission rules. 10 CFR 59 2.708(d), i, f 2.712(f) and 2.750(c). (45 Fed. Rea. 49535, July 25, 1980). U Those rules have since been amended so that procedural financial assistance is not now available. The Commission is not empowered to expend its appropri-ated funds for the purpose of funding consultants to interveners. See P.L. 97-88, Title V Section 502 [95 Stat, 1148 (1981)] and P.L. 97-276 Section 101(g) [96 Stat. 1135 (1982)]. Nor does it appear that the Commission has authority to require the utility-applicants to do so or to assess fees for that purpose where the service to be performed is for interveners' benefit and is not one needed by the Commission to discharge its own licensing responsibilities. See Mississiooi Power and Liaht Co.
- v. NRC, 601 F.2d 223 (5th Cir. 1979), cert, denied, 444 U.S. 1102 (1980). See also National Cable Television Association. Inc. v. United States, 415 U.S. 336 (1978);
Federal Power Commission v. New Enaland Power Co., 415 U.S. 345 (1974); Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-40, 16 NRC 1717 (1982); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1273 (1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985); Metropolitan Edison Co. (TFree Mile Island Nuclear Station, Unit 1), ALAB-807, 21 NRC 1195,
/ 1212 (1985), citina, Pub. L. No. 98-360, 98 Stat. 403
(]) (1984). See Houston Liahtina and Power Co. (Allens MARCH 1988 PREHEARING MATTERS 101
l 9 2.9.10.2 Creek Nuclear Generating Station, Unit 1), ALAB-625,13 NRC 1 13, 14-15 (1981). l 4 2.9.10.2 Interveners' Witnesses '{ The Appeal Board has indicated that where an intervenor would q call a witness but for the intervenor's financial inability to ' do so, the Licensing Board may call the witness as a Board witness and authorize NRC payment of the usual witness fees and expenses. The decision to take such action is a matter of Licensing Board discretion which should be exercised with circumspection. If the Board calls such a witness as its own, it should limit cross-examination to the scope of the direct examination. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-382, 5 NRC 603, 607-608 (1977). 2.9.11 Appeals by Interveners An intervenor may seek appellate redress on all issues whether or not those issues were raised by his own con-tentions. Northern States Power Co. (Prairie Island Nuclear l Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 863 ! (1974).
]l 2.9.12 Intervention in Remanded Proceedings The Licensing Board was " manifestly correct" in rejecting a '
petition requesting intervention in a remanded proceeding where the scope of the remanded proceeding had been limited by J the Commission, and the petition for intervention dealt with I matters outside that scope. The Licensing Board had limited jurisdiction in the proceeding and could consider only what had been remanded to it. Carolina Power and Licht Comoany (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 n.3 (1979). 2.10 Nonparty Participation - Limited Appearance and Interested j States 1 1 2.10.1 Limited Appearances in NRC Adjudicatory Proceedings ! Although limited appearees are not parties to any proceeding, , statements by limited appearees can serve to alert the 1 Licensing Board and the parties to areas in which evidence may need to be adduced. Iowa Electric Liaht & Power Co. (Duane Arnold Energy Center), ALAB-108, 6 AEC 195,196 n.4 (1973). 2.10.1.1 Requirements for Limited Appearance The requirements for becoming a limited appearee are set out in 10 CFR s 2.715. Based upon that section, the ' requirements for limited appearances are generally within the discretion of the presiding officer in the proceeding. MARCH 1988 PREHEARING MATTERS 102
p , 1 l ! 73 9 2.10.2 ] () Commonwealth Edison Co. (Dresden Nuclear Power Station,' Unit 1), CLI-81-25, 14 NRC 616, 623 (1981).- I i G 2.10.1.2 Scope / Limitations of Limited Appearances Under 10 CFR 6 2.715(a), the role of a limited appearee is ; restricted to making oral or written statements of hic ' position on the issues within such limits and on such conditions as the Board may fix. Pursuant to 10 CFR 9 2.715(a), limited appearance statements may be permitted at the discretion of the presiding officer, but the person admitted may not otherwise participate in the proceeding. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 83-25, 18 NRC 327, 333 (1983). A limited appearance statement is not evidence and need only be taken into account by the Licensirg Board to the extent that it may alert the Board or parties to areas in which evidence may need to be adduced. Igya Electric Liaht & Power Co.,ALAB-108,suora,(dictum). The purpose of limited appearance statements is to alert the Licensing Board and parties to areas in which evidence may
,m need to be adduced. Such statements do not constitute j evidence, and accordingly, the Board is not obligated to V) discuss them in its decision. Louisiana Power and Licht Co.
(Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076, 1087 n.12 (1983), citina, 10 CFR @ 2.715(a); Iowa Electric Licht and Power Co. (Duane Arnold Energy Center), ALAB-108, 6 AEC 195, 196 n.4 (1973). A person who makes a limited appearance before a Licensing Board may not appeal from that Board's decision. Metropolitan Edison Company (Three Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978). 2.10.2 Participation by Nonparty Interested States Under 10 CFR 9 2.715(c), an interested State may partici-pate in a proceeding even though it is not a party. In this context, the Board must afford representatives of the interested State the opportunity to introduce evi-dence, interrogate witnesses and advise the Commission. l In so doing, the interested State need not take a posi-tion on any of the issues. Even though a State has submitted contentions and intervened under 10 CFR @ 2.714, it may participate as an " interested State" under 10 CFR 9 2.715(c) on issues in the proceeding not raised by its own contentions. USERDA (Clinch River Breeder Reactor j
,m Plant), ALAB-354, 4 NRC 383 (1976); lona Island liahtina V)
( Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601, 617 (1982). See also Public Service Co. of SEPTEMBER 1988 PREHEARING MATTERS 103 i
)
5 2.10.2 1 Rey Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1079 (1982), citina, Gulf States Utjlities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 j (1977). However, once a party is admitted as an interested ' State under Section 2.715(c), it may not reserve the right to intervene later under Section 2.714 with full party status. A petition to intervene under the provisions of the latter ' section must conform to the requirements for late filed petitions. Consolidated Edison Co. of N.Y. (Indian Point, d Unit No. 2) and Power Authority of the, State of N.Y. (Indian 1 Point, Unit No. 3), LBP-82-25, 15 NRC 715, 723 (1982). A Licensing Board may require the representative of an j interested State to indicate in'advancc of the hearing the 1 subject matter.on which it wishes to participate, but such i a showing is not a prerequisite of admission under 10 CFR s 2.715(c). Indian Point, supra, 15 NRC at 723. -{ l Section 2.715(c) states that the Commission shall " afford -! representatives of an interested State... and or agencies i thereof, a reasonable opportunity to participate." Given this l language, a Licensing Board is not limited to recognizing only ] one representative of a State. Thus the Licensing Board may admit the Attorney General of an interested State even though a State law designates another person as the State's represen-tative. Indian Point, supra, 15 NRC at 719. Although some language in the Indian Point decision seemed to indicate that State law does not control the designation of a State representative, the decision actually rested upon the fact ; that the State Attorney General did not agree that the State law designated someone other than the Attorney General to ) represent the State. In the absence of a contrary judicial decision, the Commission will defer to the Attorney General's interpretation of the State law designating the State's repre-sentative. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144, 148, 149 and n.13 (1987). A State participating as an f rierested State may appeal an adjudicatory board's decision so that an interested State participating under 10 CFR s 2.715(c) constitutes the sole , exception to the normal rule that a nonparty to a proceeding may not appeal from the decision in that proceeding. Metropolitan Edison Co. (Three Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978). , Section 274(1) of the Atomic Energy Act confers a right to l participate in licensing proceedings on the State of loca- l tion for the subject facility. However, 10 CFR s 2.715(c) of the Commission's Rules of Practice extends an oppor-tunity to participate not merely to the State in which a facility will be located, but also to those other States i that demonstrate an interest cognizable under Section SEPTEMBER 1988 PREHEARING MATTERS 104 l l
i ).
; 9 2.10.2 G
2.715(c). Exxon Nuclear Company. -Inc. (Nuclear Fuel Recovery and Recycling Center), ALAB-447, 6 NRC 873 (1977). Sag, n, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Un ts 2 & 3), CLI-74-32, 8 AEC 217 (1974). Although a State seeking to participate as an " interested State" under Section 2.715(c) need not state contentions, l once in the proceeding it must comply with all the procedural i rules and is subject to the same requirements as parties appearing before the Board. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760 (1977); Illinois Power Co. (Clinton Power Station, Unit No. 1), LBP-82-103, 16 NRC 1603, 1615 (1982), citina,IUvfr Bend, supra, 6 NRC at 768. Nevertheless, the Commission has emphasized that the participation of an interested sovereign State, as a full party or otherwise, is always desirable in the NRC licensing process. Public Service Company of New Hamoshire (Seabrook Station, Units 1 & 2), CLI-77-25, 6 NRC 535 (1977). A State's participation may be so important that the State's desire to be a party to Commission review may be one factor to consider in determining whether the State should be permitted to participate in the Commission review, even though the State has not fully complied with the requirements for such . (3 partir.ipation. Id. ' A State has no right to participate in administrative appeals when it has not participated in the underlying hearing. The Commission will deny a State's extremely untimely petition to intervene as a non-party interested State which is filed on the eve of the Commission's licensing decision. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-20, 24 NRC 518, 519 (1986), aff'd sub nom. Ohio
- v. NRC, 814 F.2d 258 (6th Cir. 1987).
10 CFR 9 2.715(c) has been amended to include counties and municipalities and agencies thereof as governmental entities in addition to States which may participate in NRC adjudica-tory proceedings as " interested" government bodies. l A governmental body must demonstrate a genuine interest in participating in the proceeding. A Licensing Board denied a municip'.lity permission to participate as an interested State , in a rcopened hearing where the municipality failed to: file proposed findings of fact; comply with a Board Order to indicate with reasonable specificity the subject matters on which it desired to participate; appear at an earlier evidentiary hearing; and specify its objections to the Staff reports which were the focus of the reopened hearing. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and
/3 2), LBP-86-24, 24 NRC 132, 136 (1986).
MARCH 1988 PREHEARING MATTERS 105
i g 2.10.2 Section 2.715(c) was also amended to more clearly delineate l the participation rights of " interested" government bodies. As amended, this section provides that " interested" government bodies may introduce evidence, interrogate witnesses, advise the Commission without taking a' position on any issue, file proposed findings, appeal the Licensing Board's decision, and seek review by the Commission. The mere filing by.a State of a petition to participate in an operating license application pursuant to 10 CFR 9 2.715(c) as an interested State is not cause for ordering a hearing. The ' application can receive a thorough agency review, outside of I the hearing process, absent indications of significant controverted m?tters or serious safety or environn' ental issues. Niacara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), L6P-83-45, 18 NRC 213, 216 (1983); Duauesne Licht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6,19 NRC 393, 426 (1984), .itino, Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 527 (1980). Although a State has a statutory right to a reasonable opportunity to participate in NRC proceedings, it may not seek to appeal on issues it did not participate in below, or seek remand of those issues. However, the State is given an opportunity to file a brief amicus curiae. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-583, 11 NRC 447 (1980). A late decision by the Governor of a State to participate as representative of an interested State can be granted, but the Governor must take the proceeding as he finds it. He cannot a' complain of rulings made or procedural arrangements settled prior to his participation. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-600,12 NRC 3, 8 (1980); Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-13, 17 NRC 469, 471-72 (1983), citina, 10 CFR @ 2.715(c); Cincinnati Gas and Electric C h (Wm. H. Zimmer Nuclear Station), LBP-80-6, 11 NRC 148, 151 (1980). An interested State that has elected to litigate issues as a full party under 10 CFR 9 2.7U. is accorded the rights of an
" interested State" under 10 CFR S 2.715(c) as to all other issues. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-9, 17 NRC 403, 407 (1983),
citina, Pro.iect Manaaement Cord. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 392-93 (1976). 10 CFR 6 2.715(c) authorizes an interested State to intro-duce evidence with respect to those issues on which it has not taken a position. However, at the earliest pos-sible date in advance of the hearing, an interested State MARCH 1988 PREHEARING MATTERS 106
-,l m .
9 2.10.2 4,,mg: () must state with reasonable specificity those subject areas, other than its own contentions, in which it intends to participate. Seabrook, supra, 17 NRC at 407.
.The presiding officer mix require an interested governmental entity to indicate with reasonable specificity, in advance of !
the hearina, the subject matters on which it desires to participate. However, once the time for identification of. new .j issues by even a governmental participant has passed, either ! by schedule set by the Board or by circumstances, any new ; contention thereafter advanced by the governmental. participant i must meet the test for nontimely contentions. Lona Island . i Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP 30, 17 NRC 1132, 1140 (1983). Sgg, g.&, Lona Island Liantina [L. (Shoreham Nuclear-Power Station, Unit 1), LBP-82-19,15 , NRC 601, 617 (1982). i An interested State, once admitted to a proceeding, must observe the procedural requirements applicable to other i participants. Every party, however, may seek modification ! for good cause of time limits previously set by a Board. Moreover, good cause, by its very nature, must be an ad hoc determination based on the facts and circumstances applicable , to the particular determination. Houston Liahtina and Power l X [p_,_ (South Texas Project, Units 1 and 2), LBP-83-26, 17 NRC
$- 945, 947 (1983).
- V Although an interested State must observe applicable proce-dural requirements, including time limits, the facts and i circumstances which would constitute good cause for extending the time available to a State may not be coextensive with those warranting that action for another party. States need '
not, although they may, take a position with respect to an issue in order to participate in the resolution of that issue. j Reflecting political changes which uniquely bear upon bodies such as States, a State's position on an issue (and the degree of its participation with respect to that issue) might under-standably change during the course of a Board's consideration of the issue. The Commission itself has recognized such factors, and it has permitted States to participate even where . contrary to a procedural requirement which might bar another party's participation. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-83-26, 17 NRC 945, 947 (1983), citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-25, 6 NRC 535 (1977); See 10 t CFR 9 2.715(c). A county does not lose its right to participate as an in-terested governmental agency pursuant to 10 CFR 9 2.715(c) because it has elected to participate as a full intervenor / on specified contentions. Lono Island Liahtina Co. ( (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 MARCH 1988 PREHEARING MATTERS 107
9 2.11-NRC 1132, 1139 (1983), citina, Lona Island Liahtina Co. I (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601, 617 (1982). Any governmental participant seeking to advance a ? ate contention or issue, whether or not it be a participant already in the case w one seeking to enter, must satisfy the criteria for late-filed contentions as well as the criteria for reopening the record. Shoreham, supra, 17 NRC at 1140. 2.11 Discovery 2.11.1 Time for Discovery Discovery begins on admitted contentions after the first prehearing conference. 10 CFR 2.740(a)(1). Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1945 (1982). j 1 Under 10 CFR 9 2.74C(b)(1), there can be ro formal discovery ] prior to the special prehearing conference provided for in - Section 2.751a. In any event, a potential intervenor has no ; right to seek discovery prior to filing his petition to ! intervene. Wisconsin Electric Power Co. (Koshkonong Nuclear ] Plant, Units 1 & 2), CLI-74-45, 8 AEC 928 (1974); Northern ' States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-107, 6 AEC 188, raconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241 (1973). See also SPL
- v. AEC, 502 F.2d 424, 428-29 (D.C. Cir. 1974). Once-an I intervenor has been admitted, formal discovery is limited te matters in controversy which have been admitted. 10 CFR 9 ,
2.740(b)(1). Discovery on the subject matter of a contention ' in a licensing proceeding can be obtained only after the con-tentio.,has been admitted to the proceeding. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263 (1982). A Licensing Board denied an applicant's motion for leave to commence limited discovery against persons who had filed petitions to intervene (at that point, nonparties). The Board entertained substantial doubt as to its authority to order the requested discovery, but denied the motion specifically because it found no necessity to follow that course of action. The Board discussed at length the law relating to the prohibition found in 10 CFR 9 2.740(b)(1) against discovery beginning prior to the prehearing conference provided for in 10 CFR 9 2.751a. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 577-584 (1978). Applicants are entitled to prompt discovery concerning the bases of contentions, since a good deal of information is already available from the FSAR and other documents MARCH 1988 PREHEARING MATTERS 108
i (v [ S 2.11.1 early in the course of the proceeding. Commonwealth Edison j [L. (Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, J" 369 (1981). Under 10 CFR 9 2.740(b)(1), discovery is ordinarily to be completed before the prehearing conference held pursuant to 10 CFR 9 2.752, absent good cause shown. The fact that a party did not engage in prehearing discovery to obtain an expert witness' " backup" calculations does not preclude a request at trial for such information, but the Licensing Board may take into account the delay in deciding to grant such a last minute request. Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB-340, 4 NRC 27 (1976). The fact that late intervention has been permitted should not disrupt established discovery schedules since a tardy petitioner with no good excuse must take the proceeding as he 1 finds it. ILu. clear Fuel Services. Inc. (West Valley Raprocess-ing Plant), CLI-75-4,1 NRC 273 (1975). Under 10 CFR 9 2.740(b)(1), discovery is available after a contention is admitted and may be terminated a reasonable time thereafter. Litigants are not entitled to further discovery as a matter of right with respect to information relevant to a p) ( G contention which first surfaces long after discovery on that contention has been terminated. Duke Power Co. (Catawba Nuclear Station, Units-1 and 2), LBP-84-24, 19 NRC 1418, 1431- ! 32 (1984), aff'd, ALAB-813, 22 NRC 59 (1985). However, an Appeal Board has recently held that a Licensing Board abused its discretion by denying interveners the opportunity to conduct discovery of new'information submitted by the applicant and admitted by the Board on a reopened record. The Appeal Board found that, although there might have been a need to conduct an expeditious hearing, it was improper to deny the interveners the opportunity to conduct any discovery concerning the newly admitted information where it was not shown that the requested discovery would delay the hearing. Lona Island liahtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 160-61 (1986), rev'd in part on other arounds, CLI-87-12, 26 NRC 383 (1987). The Commission has expressly advised the Licensing Boards to see that the licensing process moves along at an expeditious pace, consistent with the demands of fairness, and the fact that a party has personal or other obligations or fewer ; resources than others does not relieve the party of its I hearing obligations. Nor does it entitle the party to an extension of time for discovery absent a showing of good cause, as judged by the standards of 10 CFR 9 2.711. Texas G
/ Utilities Generatino Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-18, 15 NPC 598, 599 (1982).
MARCH 1988 PREHEARING MATTERS 109
6 2.11.2 A party is not excused from compliance with a Board's dis-covery schedule simply because of the need to prepare for a related state court trial. Kerr-McGee Chemical CQEP_,. (West Chicago Rare Earths Facility), LBP-85-46, 22 NRC 830, 832 (1985). Though the period for discovery may have long since term-inated, at least one Appeal Board decision seems to indicate that a party may obtain discovery in order to support a motion to reopen a hearing provided that the party demonstrates with particularity that discovery would enable it to produce the needed materials. Vermont Yankee Power Carp _,. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 524 (1973). Hul igg Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985) and Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986) where the i Commission has made it very clear that a movant seeking to reopen the record is not entitled to discovery to support its motion. The question of Board management of discovery was addressed by the Commission in its Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 455-456, (1981). 1 The Commission stated that in virtually all cases individual Boards should schedule an initial conference with the parties to set a general discovery schedule immediately after contentions have been admitted. A Licensing Board may establish reasonable deadlines for the completion of dis-covery. ELqveland Electric Illuminating A (Perry Nuclear l Power Plant, Units 1 and 2), LBP-83-79,18 NRC 1400,1401 ] (1983), citina, Statement of Policy, supra, 13 NRC at 456. i Although a Board may extend a discovery deadline upon a showing of good cause, a substantial delay between a discovery deadline and the start of a hearing is not sufficient, without I more, to reopen discovery. Perry, suora, 18 NRC at 1401. An intervenor who has agreed to an expedited discovery schedule during a prehearing conference is considered to have l waived its objections to the schedule once the hearing has i started. Philadelphia Electric Co. (Limerick Generat;ng ) Station, Units 1 and 2), CLI-85-15, 22 NRC 184, 185 (1985), Philadelphia Electric Co. (Limerick Generating Station, Units l 1 and 2), ALAB-845, 24 NRC 220, 251 (1986). i 2.11.2 Discovery Rules In general, the discovery rules as between all parties except the Staff follow the form of the Federal Rules of ' Civil Procedure. The legal authorities and court deci-sions pertaining to Rule 26 of the Federal Rule:: of Civil Procedure provide appropriate guidelines for interpreting ' NRC discovery rules. Allied-General Nuclear Services MARCH 1988 PREMEARING MATTERS 110 l l l _ _ _ _ _ _ _ _ _ - - _ _ _ _ - . J
,s 6 2.11.-2
- (Barnwell fuel Receiving a1d Storage Station), LBP-77-13, 5 NRC 489 (1977); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494-95 (1983),
citina, Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 760 (1975). If there is no NRC rule tFat parallels a Federal Rule of Civil Procedure, the Boarc' is not restricted from applying the Federal rule. While the Commission may have chosen to adopt only some of the Federal rules of practice to apply to all cases, it need not be inferred that the Commission intended to preclude a Licensing Board from following the guidance of the Federal rules and decisions in a specific case where there is no parallel NRC rule and where thet guidance results in a fair determination of an issue. Seabrook, supra, 17 NRC at 497. Rule 26(b)(4) differentiates between experts whom the party expects to call as witnesses and those who have been retained or specially employed by the party in preparation for trial. The Notes of Advisory Committee on Rules explain that discovery of expert witnesses is necessary, particularly in a complex case, to narrow the issues and eliminate surprise, but that purpose is not furthered by discovery of non-witness experts. Seabrook, Lupr_q,17 u NRC at 497; Commonwealth Edison (3) i U {Lo2 o (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-7, 23 NRC 177, 178-79 (1986) (discovery of a non-witness expert permitted only upon a showing of exceptional circum- , stances). The filing of an affidavit as part of a non-record I filing with a Licensing Board does not make an individual an expert witness. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-87-18, 25 NRC 945, 947 (1987). In modern administrative and legal practice, including NRC practice, pretrial discovery is liberally granted to e;,able the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expe-ditious hearing or trial. Texas Utilities Generatina Co. (Comanche Perk Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981); Pacific Gas & Electric Comoany (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494 (1984). A party may seek discovery of another party without the necessity of Licensing Board intervention. Where, however, discovery of a nonparty is sought (other than by deposi-tion), the party must request the issuance of a subpoena under Section 2.720. Pacific Gas and Electric Company O (Stanislaus Nuclear Prcject, Unit 1), ALAB-550, 9 NRC Q 683, 690 (1979). MARCH 1988 PREHEARING MATTERS 111
6 2.11.2 Only those State agencies which are parties in NRC proceedings are required to respond to requests under 10 CFR 9 2.741 for the production of documents. In order to obtain documents from non-party State agencies, a party must file a request for a subpoena pursuant to 10 CFR 6 2.720. Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-1, 21 NRC 11, 21-22 (1985), citina, Stanislaus, supra, 9 NRC at 683. Applicants are entitled to discovery against interveners in order to obtain the information necessary for applicant to meet its burden of proof. This does not amount to shifting the burden of proof to interveners. Pennsylvania Power & Liaht Company (Susquehanna Steam Electric Station, Units 1
& 2), ALAB-613, 12 NRC 317, 338 (1980).
Each co-owner of a nuclear facility ha: an independent responsibility, to the extent that it is able, to provide a Licensing Board with a full and accurate record and with complete responses to discovery requests. The majority owner must keep the minority owners sufficiently well informed so that they can fulfill their responsibilities to the Board. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-87-27, 26 NRC 228, 230 (1987). Intervenor may not directly seek settlement papers of the applicant through discovery. Rule 408 of the Federal Rules of Evidence provides that offers of settlement and conduct and statements made in the course of settlement negotiations are not admissible to prove the validity of a claim. 10 CFR
@ 2.759 states a policy encouraging settlement of contested proceedings and requires all parties and boards to try to i carry out the settlement policy. Requiring a party to produce its settlement documents because they are settlement documents would be inconsistent with this policy. Florida rPower & Liaht Comoany (St. Lucie Plant, Unit No. 2), LBP-79-4, 9 NRC 164, 183-184 (1979).
A plan to seek evidence primarily through discovery is a permissible approach for an intervenor to take. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116,16 NRC 1937, 1943 (1982). Lack of knowledge is always an adequate response to dis- l covery. A truthful " don't know" response is not sanctionable as a default in making discovery. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1945, 1945 n.3 (1982). At least one Licensing Board has held that interveners may I develop and support their contentions by getting a first I i round of discovery against other parties before the inter-venors are required to provide responses to discovery MARCH 1988 PREHEARING MATTERS 112 i E______._____.
i 6 2.11.2.2 b against them. Catawba, supra, 16 NRC at 1945. But see 2.9.5.11, Northern States Powpr Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 183, 192, reconsid. den., ALAB-110, 6 AEC 247, aff'd, CLI-73-12, 6 AEC 241.(1973). Discovery of the foundation upon which a contention is based is not only clearly within the realm of proper discovery, but also is necessary for an applicant's preparation for hearing. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 494 (1983); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 81 (1986). A party's need for discovery outweighs any risk of harm from the potential release of information when the NRC Staff has indicated that no ongoing investigation will be jeopardized, when all identities and identifying information are excluded from discovery; and when all other information is discussed under the aegis of a protective order. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-53,18 NRC 282, .288 (1983), reconsideration denied, LBP-83-64, 18 NRC 766, 768 1 (1983), affirmed, ALAB-764, 19 NRC 633 (1984). l i y 2.11.2.1 Construction of Discovery Rules i
,V For discovery between parties other than the Staff, the discovery rules are to be construed very liberally. Com-monwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-185, 7 AEC 240 (1974); Illinois Power Co. (Clinton Power Station, Unit 1), LBP-81-61, 14 NRC 1735, 1742 (1981).
Where a provision of the NRC discovery rules is similar or analogous to one of the Federal rules, judicial interpreta-tions of that Federal rule can serve as guidance for inter-preting the particular NRC rule. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, 8 NRC 575, 581 (1978). 2.11.2.2 Scope of Discovery The test as to whether particular matters are discoverable is one of " general relevancy." This test will be easily satisfied unless it is clear that the evidence sought can have no possible bearing on the issues. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-185, 7 AEC 240 (1974). A party seeking discovery after the discovery period is over, however, must meet a higher standard of relevance. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), LBP-76-8, 3 NRC 199, 201 (1976). []j While the " general relevancy" test is fairly liberal, it does not permit the discovery of material far beyond the scope of issues to be considered in a proceeding. Thus, MARCH 1988 PREHEARING MATTERS 113
parties may obtain discovery only of information which is relevant to the controverted subject matter of the pro-ceeding, as identified in the prehearing order, or which is likely to lead to the discovery of admissible evidence. This rule applies as much to Part 70 licenses for special nuclear 4 material as to Part 50 licenses for construction of utiliza- l tion facilities. Allied General Nuclear Services (Barnwell ] Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489 3 (1977). Moreover, while the scope of discovery is rather i broad, requests phrased in terms of "all documents..." are not j favored. Illinois Power Co. (Clinton Nuclear Station, Units 1 :
& 2), ALAB-340, 4 NRC 27 (1976). I An intervenor may obtain information about other reactors in the course of discovery. Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), LBP-82-102,16 NRC 1597, 1601 (1982). J An intervenor's motion which sought to preserve deficient . j components which the applicant was removing from its plant was J denied because the motion did not comply with the requirements i for (1) a sta;, or (2) a motion for discovery, since it did j not express an intention to obtain information about the i components. The questions raised in the intervenor's motion, l including the possible need for destructive evaluation of the components, were directed to the adequacy and credibility of the applicant's evidence concerning the components. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-32, 22 NRC 434, 438 n.6 (1985). ! In general, the discovery tools are the same as or similar to ' those provided for by the Federal Rules of Civil Procedure. The Commission's regulations permit depositions and requests for production of documents between interveners and applicants without leave of the Commission and without any showing of 1 good cause (10 CFR sg 2.740a, 2.741). The regulations (10 CFR l 2.740b) specifically provide for interrogatories similar to y those addressed by Rule 33 of the Federal Rules, although such l interrogatories are not available for use against nonparties. l The scope of discovery under the Commission's Rules of Practice is similar to discovery under the Federal Rules of Civil Procedure. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978). Since written answers to interrogatories under oath as j provided by 10 CFR & 2.740(b) are binding upon a party and may be used in the same manner as depositions, the authority of the person signing the answers to, in fact, provide such answers may be ascertained through discovery. i Statements of counsel in briefs or arguments are not l MARCH 1988 PREHEARING MATTERS 114
l I 4 , zu ; I !' 1 L . j L
,X 9 2.11.2.2 1
V) . sufficient to establish this authority. Pacific Gas & Electric Comoany (Stanislaus Nuclear Profact, Unit 1), i LBP-78-20, 7 NRC 1038, 1045 (1978). If a party has' insufficient information to answer inter- l rogatories, a statement to that effect fulfills its obli-gation to respond. If the party subsequently-obtains: additional information, it must supplement its earlier response to include such newly acquired information,10 CFR
~
9 2.740(c). Pennsylvania Power and Liaht Co. (Susquehanna-Steam Electric Station, Units 1 and 2), LBP-80-18, 11 NRC 906, 911 (1980). To determine subject matter relevance for discovery purposes, it is first necessary to examine the issue. involved. In an antitrust proceeding, a discovery request will not be denied where the interrogatories are relevant only to proposed antitrust license conditions and not to whether a situation inconsistent with the antitrust laws exists. Pacific Gas and Electric Comoany (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978). At least one Licensing Board has held that, in the proper circumstances, a party's right to take the deposition of another party's expert witness may be made contingent upon the
,A)-
; payment of expert witness fees by the party seeking to take U the deposition. Public Service Co. of Oklahoma (Black Fox, Units 1 & 2), LBP-77-18, 5 NRC 671, 673 (1977).
Based on 10 CFR s 2.720(d) and 6 2.740a(h), fees for sub-poenas and the fee for deponents, respectively, are to'be paid by the party at whose instance the subpoena was issued, and the deposition was held. Pursuant to 10 CFR 9 2.740a(d), objections on questions of evidence at a deposition are simply to be noted in short form, without argument. The relief cf a stay of a hearing to permit deposition of witnesses is inappropriate in the absence of any allegation of prejudice. Each. party to an NRC proceeding is not required to convene its ; own deposition if it seeks to question a witness as to any ! matter beyond the scope of those issues raised on direct by the party noticing the deposition. No party has a proprietary interest in a deposition; therefore, no party has a pro-prietary interest in a subpoena issued to a deponent. Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-82-47, 15 NRC 1538, 1544-1546 (1982). The Licensing Board, as provided by 10 CFR 9 2.740(c) and 10 CFR 9 2.740(d), may and should, when not inconsistent with fairness to all parties, limit the extent or control O the sequence of discovery to prevent undue delay or impo-sition of an undue burden on any party. Metropolitan MARCH 1988 PREHEARING MATTERS 115
1 I 2.11.2.3 Edison comoany (Three Mile Island Nuclear Station, Unit No. 1 1), CLI-79-8, 10 NRC 141, 147-148 (1979). Thus, a Licensing l Board may issue a protective order which limits the represen-tatives of a party in a proceeding who may conduct discovery ; of particular documents. Texas Utilities Electric Co. l (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB- i 870, 26 NRC 71, 75 (1987). j A party is only required to reveal information in its possession or control. A party need not conduct extensive l independent research, although it may be required to ptrform some investigation to determine what information it actually possesses. Pennsylvania Power and Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 334 (1980). A party is not required to search the record for information in order to respond to interrogatories where the issues that are the subject of the interrogatories are already defined in the record and the requesting party is as able to search the record as the party from whom discovery is requested. Igni
, Utilities Electric Co. (Comanche Peak Steam Electric Station, 1 Units 1and2),LBP-87-18,25NRC945,948(1987).
2.11.2.3 Requests for Discovery During Hearing Requests for background documents from a witness, to supply answers to cross-examination questias which the witness is unable to answer, cannot be denied solely because the material had not been previously requested through discovery. However, it can be denied where the request will cause significant delay in the hearing and the information sought nas been substantially supplied through other testimony. Illinois Power Co. (Clinton Nuclear Station, Units 1 & 2), ALAB-340, 4 NRC 27 (1976). 2.11.2.4 Privileged Matter As under the Federal Rules of Civil Procedure, privileged or confidential material may be 3rotected from discovery under Commission regulations. To estain a protective order (10 CFR 9 2.740(c)), it must be demonstrated that: (1) the information in question is of a type customarily held in confidence by its originator; (2) there is a rational basis for having customarily neld it in confidence; (3) it has, in fact, been kept in confidence; and (4) it is not found in public sources. MARCH 1988 PREHEARING MATTERS 116
(> ^
; 9 2.11.2.4 Kansas Gas & Electric Co2 (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408 (1976). See also Section 6.23.3.
The claimant of a privilege must bear the burden of proving that it is entitled to such protection, including pleading it adequately in its response. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982), citina, In re Fischel, 557 F.2d 209 (9th Cir.1977); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 495 (1983). See Shoreham, supra, 16 NRC at 1153. Interveners' mere assertion that the material it is withholding constitutes attorney work product is insufficient to meet that burden. Seabrook, Lupn , 17 NRC at 495. It is not sufficient for a party asserting certain documents to be privileged from discovery to await a motion to compel from the party seeking discovery prior to the asserting party j setting forth its assertions of privilege and specifying those matters which it claims to be privileged. Shoreham, suora, 16 NRC at 1153. c Pursuant to 10 CFR s 2.740(b)(1), parties may generally ( i obtain discovery regarding any matter, not privileged, which () is relevant to the subject matter in the proceeding. While the Federal Rules of Civil Procedure are not themselves directly applicable to practice before the Commission, judicial interpretations of a Federal Rule can serve as guidance for the interpretation of a similar or analogous NRC discovery rule. By choosing to model Section 2.740(b) after Federal Rule 26(b), without incorporating specific limita-tions, the Commission implicitly chose to adopt those privileges which have been recognized by the Federal Courts. Shoreham, suora, 16 NRC at 1157. A party objecting to the production of documents on grounds of privilege has an obligation to specify in its response to a document request those same matters which it would be required to set forth in attempting to establish " good cause" for the issuance of a protective order, i.e., there must be a specific designation and description of (1) the documents claimed to be privileged, (2) the privilege being asserted, and (3) the precise reasons why the party believes the privilege to apply to such documents. Lona Island Liahtina Co. (Shoreham ! Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-Il6, 16 NRC 1937, 1942 (1982). O Claims of privilege must be specifically asserted with i (d respect to particular documents. Privileges are not absolute and may or may not apply to a particular document, MARCH 1988 PREHEARING MATTERS 117
j 9 2.11.2.4 depending upon a variety of circumstances. Shoreham, Lup_ta, 16 NRC at 1153, citina, United States v. El Paso Co., 682 F.2d 530, reh'a denied, 688 F.2d 840 (1982), ,q.grt, denied, 104 S. j Ct. 1927 (1984); United States v. Davis, 636 F.2d 1028, 1044 ; n.20 (5th Cir. 1981). In determinin9 whether a party's inadvertent disclosure of a ) privileged document constitutes a waiver of the privilege, a i Board will consider the adequacy of the precautions taken i initially to prevent disclosure, whether the party was j compelled to produce the document under a Board-imposed : expedited discovery schedule, the number of documents which ; the party had to review, and whether the party, upon learning I of the inadvertent disclosure, promptly objected to the { production of the document. Kerr-McGee Chemical Coro. (West i Chicago Rare Earths Facility), LBP-85-1, 21 NRC 11, 19-20 i (1985). Even where a First Amendment or common law privilege is found applicable to a party or nonparty resisting dir,covery, that privilege is not absolute. A Licensing Board must balance the value of the information sought to be obtained with the harm caused by revealing the information. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-53, 18 NRC 282, 288 (1983), reconsideration denied, LBP-83-64, 18 NRC 766, 768 (1983), aff'd, ALAB-764, 19 NRC 633, 641 (1984). Although a report prepared by a party's non-witness experts qualifies for the work product privilege, a Licensing Board ! may order discovery of those portions of the report which are relevant to 10 CFR 50, Appendix B determinations concerning l the causes of deficiencies in the plant. Texas Utilities ! Electric Co. (Comanche Peak Steam Electric Station, Ur.it 1), LBP-87-20, 25 NRC 953, 957 (1987). Statements from an attorney to the client are privileged only if the statements reveal, either directly or indirectly, the , substance of a confidential communication by the client. Lang ' Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1158 (1982), citina, In re_fj.srhe_l, i 557 F.2d 209 (9th Cir.1977); Ohio-Sealy Mattress Manufactur-ina Co. v. Kaolan, 90 F.R.D. 21, 28 (N.D. Ill. 1980). An attorney's involvement in, or recommendation of, a transaction , does not place a cloak of secrecy arcJnd all incidents of ' such a transaction. Shoreham, supra, 16 NRC at 1158, citina, Fisqltel, 557 F.2d at 212. The attorney-client privilege does not protect against discovery of underlying facts from their source, merely because those facts have been communicated to an attorney. Shoreham, surra, 16 NRC at 1158, citina, Vo.iohn Co. v. United ; States, 449 U.S. 383, 395 (1981). 1 MARCH 1988 PREHEARING MTTERS 118 - _ _ _ - _ _ _ _ _ _ _ _ _ b
'f 77 9 2.11.2.4 The attorney-client privilege may not be asserted wh'ere there is a' conflict of interests between various clients represented by theLsame attorney. There is no attorney-client relation-
- ship unless the attorney is able to exercise independent
- professional judgment on behalf of the interests of a-client.
l Texas Utilities Electric Co. (Comanche Peak Steam Electric
- Station, Units 1 and 2), LBP-84-50, 20 NRC 1464, 1468-1469 (1984), ,citino, Rule 1.7 of the ABA Model Rules of Profes-sional Conduct.
A qualified work product. immunity extends over material gathered'or prepared by an attorney for use in litigation, either current or reasonably anticipated at a future time. Although the privilege is not easily overridden, a party may gain discovery of such material upon a showing of a substan-tial need for the material in the preparation of its case and an inability to obtain the material by any other means without undue hardships. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-50, 20 NRC 1464, 1473-1474 (1984), citina, Hickman v. Taylor, 329 U.S. 495 (1947), and 10 CFR 9 2.740(b)(2). To claim the attorncy-client privilege, it must be shown that: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom a communication was nv ). t made (a) is a member of the bar of a court, or his subordinate and (b) in connection with the communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client, (b) without the pres-ence of strangers, (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) legal assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-70, 18 NRC 1094, 1098 (1983), citina, United States v. United Shoe Machinery Cp_th , 89 F. Supp. 357, 358-59 (D. Mass. 1950). The fact that a document is autho..d by in-house counsel, rather than by an independent attorney is not relevant to a determination of whether such a document is privileged. Long Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1158 (1982), citina, O'Brien v. Board of Education of City School District of New York, 86 F.R.D. 548, 549 (S.D.N.Y. 1980). The attorney-client privilege is only available as to comraunications revealing confidences of the client or seeking legal advice. Shoreham, suora, 16 NRC at 1158, citina, SCM Coro. v. Xerox Corp., 70 F.R.D. 508 (D.
/~' Conn.), interlocutory apoeal dismissed, 534 F.2d 1031
( (2d Cir. 1976). Even if some commonly known factual matters were included in the discussion, or non-legal MARCH 1988 PREHEARING MATTERS 119
D 2.11.2.4 advice was exchanged, where the primary purpose of a meeting was the receipt of legal advice, the entire contents thereof are protected by privilege. Midland, suora, 18 NRC at 1103, citina, Barr Marine Products Co. v. Bora-Warner Corp., 84 F.R.D. 631, 635 (E.D. Pa. 1979); United States v. United Shoe Machinery Coro., 89 F. Supp. 357, 359 (D. Mass. 1950). An attorney's representation, that all communications between the attorney and the party were for the purpose of receiving legal advice, is sufficient for an assertion of attorney-client privilege. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-53, 18 NRC 282, 285 (1983), reconsideration denied, LBP-83-64, 18 NRC 766 (1983). Communications from the attorney to the client should be privileged only if it is shown that the client had a reason-able expectation in the confidentiality of the statement; or, put another way, if the statement reflects a client communica-tion that was necessary to obtain informed legal advice [and] which might'not have been made absent the privilege. Shoreham, suora,16 NRC at 1159, citina, Ohio-Sealy Mattress Manufacturira Co. v. Kaplan, 90 F.R.D. 21, 28 (N.D. Ill . 1980). Where legal advice is sought from an attorney in gcod faith by I one who is or is seeking to become a client, the fi.ct that the attorney is not subsequently retained in no way affects the privileged nature of the communications between them. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-70, 18 NRC 1094 (1983). The attorney-client privilege was not waived by the presence of third persons at a meeting between client and attorney, where the situation involved representatives of two joint clients seeking advice from the attorney of one such client about common legal problems. Midland, suora, 18 NRC at 1100. Where the date of a meeting, its attendees, its purpose, and its broad general subject matter are revealed, the attorney-client privilege was not waived as to the substance of the meeting. Midland, supra, 18 NRC at 1102. Under appropriate circumstances, the attorney-client privilege may extend to certain communications from employees to corporate counsel . However, not every employee who provides a privileged communication is thereby a " client" represented by corporate counsel, or a
" party" to any pending legal dispute, for purposes of ABA Disciplinary Rule 7-104. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CL1-83-31, 18 NRC 1303, 1305 '
(1983), citina, Vo.iohn Co. v. United Sta_ttLs., 449 U.S. 383 MARCH 1988 PREHEARING MATTERS 120
o_ 9 2.11.2.4-
)
'V (1981). Upiohn, suora, did not overturn the well-established principle that counsel should be at liberty to approach witnesses for an opposing party. Oljtw_ba, supra,18 NRC at 1305, citino, Veaa v. Bloomsburah, 427 F. Supp. 593 (D. Mass. ;
1977). Drafts of canned testimony not yet filed by a party are not subject to discovery. Public Service Co. of New Hamoshire
'7 (Seabrook Station, Units 1 & 2), LBP-75-28, 1 NRC 513, 514 (1975).
Security plans are not " classified," and are discoverable in accordance with the provisions of 10 CFR 9 2.790(d). However, they are sensitivo documents and are not to be made available to the public at large. Pacific Gas & Electric Co. (Diablo i Canyon Nuclear Power Plant, Units 1 & 2), ALAB-410, 5 NRC 1398, 1402 (1977). In order to discover such plans, (1) the moving party must demonstrate that the plan or a portion of it is relevant to the party's contentions; (2) the release of the plant security plan must usually be subject to a protective order; and (3) no witness may review the plan until he is first qualified as an expert with sufficient competence to evaluate it. Id. Only those portions of a security plan which are both relevant and necessary for the litigation of a r3 party's contentions are subject to discovery. Id._at 1405. An interrogatory seeking the identity and professional qualifications of persons relied upon by interveners to review, analyze and study contentions and issues in a proceeding and to provide the bases for contentions is proper discovery. Such information is not privileged and is not a part of an attorney's work product even though the inter- ; venor's attorney solicited the views and analyses of the ! persons involved and has the sole knowledge of their identity. ! General Electric Comoany (Vallecitos Nuclear Center, General Electric Test Reactor), LBP-78-33, 8 NRC 461, 464-468 (1978). The Governmert enjoys a privilege to withhold from disclo-sure the identity of persons furnishing information about violations of law to officers charged with enforcing the :' law. Rovario v. United States, 353 U.S. 53, 59 (1957), cited in Houston Liahtina and Power Co. (South Texas Proj-ect, Units 1 and 2), ALAB-639, 13 NRC 469, 473 (1981). This applies not only in criminal but also civil cases, In re United States, 565 F.2d 19, 21 (1977), .t?tt. denied sub nom. Bell v. Socialist Workers Par _1y, 435 U.S. 962 (1978), and in Commission proceedings as well, Northern States Power CA (Monticello Plant, Unit 1), ALAB-16, 4 AEC 435, affirmed by the Commission, 4 AEC 440 (1970); 10 CFR SS 2.744(d), 2.790(a)(7); Texas Utilities Generatina
,/_T Co. (Comanche Peak Steaa Electric Station, Units 1 and 2),
Q ALAB-714, 17 NRC 86, 91 (1983); and is embodied in F0IA, MARCH 1988 PREHEARING MATTERS 121 ;
e I i 6 2.11.2.4 _q 5 USC 552(b)(7)(D). The privilege is not absolute; where an i informer's identity is (1) relevant and helpful to the j defense of an accused, or (2) essential to a fair deter- { mination of a cause (Rovario, suora) it must yield. However, ; the Appeal Board reversed a Licensing Board's order to the i Staff to reveal the names of confidential informants (subject 1 to a protective order) to interveners as an abuse of discre- 1 tion, where the Appeal Board found that the burden P obtain the names of such informants is not met by intervenor , speculation that identification might be of some assistance to a them. To require disclosure in such a case would contravene I NRC policy in that it might jeopardize the likelihood of I receiving future similar reports. South Texas, supra. f: There may be a limited privilege for the identity of indi-viduals who have expressly asked or been promised anonymity 1 in coming forward with information concerning safety-related problems at a nuclear plant. Texas Utilities Generatina Co. ; (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-59, 16 NRC 533, 537 (1982). In determining whether or not to issue a protective order to protect the confidentiality or to limit the disclosure of the identities of prospective witnesses, a Board will weigh the ' benefit of encouraging the testimony of such witnesses against the detriment of inhibiting public access to that information and the cumbersome procedures necessitated by a protective 4 order. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-40, 22 NRC 759, 763 (1985). Privilege to withhold the names of confidential informants is l not absolute; it must yield where the informer's identity is - relevant and helpful to the defense of an accused, or is ! essential to a fair determination of a cause. Comanche Pea _k, ! suora, 16 NRC at 537. Even where an informer's qualified privilege exists, it will fail in light of the Board's need for the particular informa-tion in informed decisionmaking. Texas Utilities Generatina l
^
Co. (Comareche Peak Steam Electric Station, Units 1 and 2), LBP-82-59, 16 NRC 533, 538 (1982). F0IA does not establish new government privileges against discovery. Consumers Power Company (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 121 (1980). The Commission's rules on di:covery have incorporated the - exemptions contained in the F0IA. Id. Section 2.790 of the Rules of Practice is the NRC's promul- , gation in obedience to the Freedom of Information Act. , Id. at 120. The Commission, in adopting the standards of MARCH 1988 PREHEARING MATTERS 122 f i
l 5 2.11.2.4 Exemption 5, and "necessary to a proper decision" as its document privilege standard under 10 CFR 6 2.744(d), has adopted traditional work product / executive privilege exemp- i tions from disclosure, ld. at 123. The Government is no less i entitled to normal privilege than is any other party in civil I litigation. Ji at 127. l The executive or deliberative process privilege protects from discovery governmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a i process by which governmental decisions and policies are ' formul ated. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984), gitiDS, Carl Zeiss Stiftuna v. V.E.B. Carl Zeiss. Jena, 40 F.R.D. 318 i (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967). I The executive privilege may be invoked in NRC proceedings. Shoreham, suora, 19 NRC at 1333, citina, Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI 4 16, 7 AEC 313 (1974); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-33, 4 AEC 701 (1971). O Documents shielded by executive privilege remain privileged even after the decision to which they pertain may have been V) effected, since disclosure at any time could inhibit the free flow of advice including analysis, reports, and expression of ) opinion within the agency. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,1164 i (1982), citina, Federal Open Market Committee of the Federal Reserve System v. Merril, 443 U.S. 340, 360 (1979). The executive privilege is a qualified privilege, and does not ' attach to purely factual communications, or to severable factual nortions rf communications, the disclosure of which would not compromise military or state secrets. Shoreham, suora, 16 NRC at 1164, citina, EPA v. Mink, 410 U.S. 73, 87-88 (1973); Smith v. FTC, 403 F. Supp. 1000, 1015 (D. Del. 1975); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221, 1225 (1983). The executive privilege does apply where purely factual material is inextricably intertwined with privileged communications or the disclosure of the factual material would reveal the agency's decisionmaking process. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1342
. (1984), citina, Russell v. Deo't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982).
The executive privilege protects both intra-agency and inter-agency documents and may even extend to outside O)
- t. consultants to an agency. Lona Island Liahtina Co.
MARCH 1988 PREHEARING MATTERS 123
9 2.11.2.4 (Shoreham Nuclear Power Station,, Unit 1), ALAB-773,19 NRC 1333, 1346 (1984), citina, Lead Industries Ass'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979).
. Communications that fall within the protection of the privilege may be disclosed upon an appropriate showing of need. Shoreham, suora, 16 NRC at 1164, citina, United States
- v. Leacett and Platt. Inc., 542 F.2d 655, 658-659 (6th Cir.
1976), cert. denied, 430 U.S. 945 (1977); Lona Island Liahtina [_o2 0 (Shoreham Nuclear Power Station, Unit 1),.LBP-83-72, 18 NRC 1221, 1225 (1983); Lona Island Lichtina Co. (Shoreham i Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 I (1984), citina, Carl Zeiss Stiftuna, suora, 40 F.R.D. at 327. j In determining the need of a litigant seeking the production of documents covered by the executive privilege, an objective balancing test is employed, weighing the importance of ; documents to the party seeking their production and the ' availability elsewhere of the information contained in the , documents against the Government interest in secrecy. Lqqg ! Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1164-1165 (1982), citina, United States v. Leacett and Platt. Inc., 542 F.2d 655, 658-659 (6th I Cir. 1976), cert. denied, 430 U.S. 945 (1977); Lona Island j Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP- ' 83-72, 18 NRC 1221, 1225 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984). The burden is upon the claimant of the executive privilege.to demonstrate a proper entitlement to exemption from disclosure, including a demonstration of precise and certain reasons for preserving the confidentiality of governmental communications. Shoreham, suora, 16 NRC at 1144, 1165, citina, Smith v. FTC, 403 F. Supp.1000,1016 (D. Del 1975); Lona Island liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984). It is appropriate to look to cases decided under Exemption 5 i of the F0IA for guidancc in resolving claims of executive privilege in NRC proceedings related to discovery, so long as it is done using a common-sense approach which recognizes any _ differing equities presented in such F0IA cases. Lona Island l Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP 82, 16 NRC 1144, 1163-1164 (1982). A claim of executive privilege is not waived by participation as a litigant in the proceeding. Shoreham, suora, 16 NRC at l 1164. l l The privilege against disclosure of intragovernment docu-i ments containing advisory opinions, recommendations and l deliberations is a part of the broader executive privilege l l SEPTEMBER 1988 PREHEARING MATTERS 124 l
7s 9 2.11.2.5
)
q) recognized by the courts. Shoreham, supra, 16 NRC at 1164, citina, United States v. Nixon, 418 U.S. 683, 705-711 (1974); Lona Island Liahtfna Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-72, 18 NRC 1221, 1226-1227 (1983). i The executive privilege is not limited to policymaking, but may attach to the deliberative process that precedes most decisions of government agencies. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1341 (1984), citina, Russell v. Den't of the Air Force, 682 F.2d 1045, 1047 (D.C. Cir. 1982). The purpose behind the privilege is to encourage frank discussions within the Government regarding the formulation of policy and the making of decisions. Shoreham, suora, 16 NRC at 1164, citina, United States v. Berriaan, 482 F.2d 171, 181 (3rd Cir. 1973). 2.11.2.5 Protective Orders In using protected information, "those subject to the pro-tective order may not corroborate the accuracy (or inaccuracy) of outside information by using protected information gained through the hearing process." Pacific Gas and Electric
,m Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-600, 12 NRC 3, 6 (1980). (w,j An affidavit in support of a corporation's request for a protective order is insufficient where it does not establish the basis for the affiant's personal knowledge (if any) respecting the basis for the protective order -- that is, the policies and practices of the corporation with regard to preserving the confidentiality of information said to be proprietary in naturo. The Board might well disregard the affidavit entirely on the ground that it was not shown to have been executed by a qualified individual. While it may not be necessary to have the chief executive officer of the company serve as affiant, there is ample warrant to require that facts pertaining to management policies and practices be presented by an official who is in a position to attest to those policies and practices (and the reasons for them) from personal knowlecge. Virainia Electric and Power Comotny (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23, 28 (1979). In North Anna, the Appeal Board granted a protective order request but explicitly declined to find that the corporation requesting the order had met its burden of showing that the information in question was proprietary and entitled to protection from public disclosure under the standards set forth in 1(ansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408 (1976). No party had objected to the order, and the (p) Appeal Board grantea the order in the interest of obtaining the requested information without untoward further delay. SEPTEMBER 1988 PREHEARING MATTERS 125 _ _ . - _ - - - _ - - - _ _ - - J
L 9 2.11.2.6 However, its action should not be taken as precedent for ! future cases in which relief might be sought from an adju-dicatory board based upon affidavits containing deficiencies as described above. North Anna, supra, 10 NRC at 28. Pursuant to 10 CFR S 2.740(f)(2), the Board is empowered to make a protective order as it would make upon a motion . pursuant to Section 2.740(c), in ruling upon a motion to i compel made in accordance with Section 2.740(f). Long Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,115's (1982) . ! J In at least one instance, a Licensing Board deemed it i unnecessary to act on a motion for a protective order where a ) timely motion to compel is not filed. In such a case, the l motion for protective order will be deemed granted and the ' matter closed upon the expiration of the time for filing a motion to compel. Duke Power Cos (Catawba Nuclear Station, l Units 1 and 2), LBP-82-116, 16 NRC 1937, 1952 (1982). I Where a demonstration has been made that the rights of asso- ! ciation of a membUr of an intervenor group in the area have l been threatened through the threat of compulsory legal process 1 to defend contentions, the employment situation in the area is dependent on the nuclear industry, and there is no detriment to applicant's interests by not having the identity of indi-vidual members of petitioner publicly disclosed, the Licensing Board will issue a protective order to prevent the public i disclosure of the names of members of the organizational I petitioner. Washinaton Public Power Sucoly System (WP?SS Nuclear Project No.1), LBP-83-16,17 NRC 479, 485-86 (1983). Licensing and Appeal Boards assume that protective orders will be obeyed unless a concrete showing to the contrary is made. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-764, 19 NRC 633, 643 n.14 (1984); see Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-53,18 NRC 282, 287-88 (1983), reconsideration denied, LBP-83-64, 18 NRC 766, 769 (1983), citino, Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-735, 18 NRC 19, 25 (1983). One who violates such orders risks " serious sanction". Midland, supra, 18 NRC at 769. 2.11.2.6 Work Product To be privileged from discovery by the work product doc-trine, as codified in 10 CFR S 2.740(b)(2), a document must be both prepared by an attorney, or by a person working at the direction of an attorney, and prepared in anticipation of litigation. Ordinary work product, which does not in-clude the mental impressions, conclusions, legal theories or opinions of the attorney (or other agent), may be obtained by an adverse party upon a showing of " substantial MARCH 1988 PREHEARING MATTERS 126
m 1
) 6 2.11.2.8 l V :LJ f need of materials in preparation of the case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Opinion work product is not discoverable, so long as the material was in ;
fact prepared by an attorney or other agent in anticipation of litigation, and not assembled in the ordinary course of ( business, or pursuant to public requirements unrelated to l litigation. Lona Island Liahtina Co. (Shoreham Nuclear Power l Station, Unit 1), LBP-82-82, 16 NRC 1144, 1162 (1982); Public l Service Co. of New Hamoshire (Seabrook Station, Units 1 and l 2), LBP-83-17, 17 NRC 490, 495 (1983). Sag Commonwealth ! Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), l LBP-86-7, 23 NRC 177, 179 (1986) (documents required by NRC regulations are discoverable even though attorneys may have < assisted in preparing the documents in anticipation of litigation). An intervenor's mere assertion that the material i it is withholding constitutes attorney work product is j insufficient to meet the burden of proving it is entitled to l protection from discovery. Seabrook, suora, 17 NRC at 495. ; l In the absence of unusual circumstances, a corporate party cannot immunize itself from otherwise proper discovery merely by using lawyers to make file searches for information
,~x < required to answer an interrogatory. Houston Liahtina & Power Comnany (South Texas Project, Units 1 & 2), LBP-79-5, 9 NRC
('v) 193, 195 (1979). Drafts of testimony are not covered by the attorney work ! product privilege. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-81-63, 14 NRC 1768, 1793-1794 (1981). 2.11.2.7 Updating Discovery Respon_ses The requirements for updating discovery responses are set forth in 10 CFR 9 2.740(e). Generally, a response that was accurate and complete when made need not bc updated to include later acquired information with certain exceptions set forth in Section 2.740(e). Of course, an adjudicatory board may impose the duty to supplement responses beyond that required by the regulations. 10 CFR S 2.740(e)(3). 2.11.2.8 Interrogatories 1 Interrogatories must have at least general relevancy, for j discovery purposes, to the matter in controversy. Igxn s l _ l Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-25, 14 NRC 241, 243 (1981). Interrogatories will not be rejected solely on the number
/O of questions. Pennsylvania Power & Licht Comoany l
v)
+
MARCH 1988 PREHEARING MATTERS 127
l 1 ! .l i (Suseueh ana Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 330-335 (1980). However, Licensing Boards may limit the nuniber of interrogatories in accordance with the Commission's rules. Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 455-456 (1981). 1 Numbers alone dc not distermine the propriety of interrog- l atories. While a Board u authorized to impose a limit on i interrogatories, the rules do not do so of their own force. ' In the absence of specific objections there is no occasion to review the propriety of interrogatories individually. Duke J Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP I 116, 16 NRC 1937, 1941 (1982). An intervenor must come forward with evidence " sufficient to i require reasonable minds to inquire further" to insure that 1 its contentions are explored at the hearing. Interrogatories j designed to discover what, if any, evidence underlies an intervenor's own contentions are not out of order. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116,16 1 NRC 1937, 1942 (1982). ! Interrogatories served to determine the " regulatory basis" or
" legal theory" for a contention are appropriate and important.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1946 (1982). l Answers should be complete in themselves; the interrogating l party should not need to sift through documents or other 1 materials to obtain a complete answer. Instead, a party must specify precisely which documents cited contain the desired . information. Cleveland Electric Illuminating Co. (Perry i Nuclear Power Plant, Units 1 and 2), LBP-82-67,16 NRC 734, 'I 736 (1982), citina, Commonwealth Edison Co. (Byron Nuclear ' Power Station, Units 1 and 2), ALAB-678, 15 NRC 1421, n.39 (1982); 4A Moore's Federal Practice 33.25(1) at 33-129-130 (2d , ed.1981); Martin v. Easton Publishina Co., 85 F.R.D. 312, 315 l (E.D. Pa. 1980). i I To the extent the interrogatory seeks to uncover and examine ! the foundation upon which an answer to a specific inter-rogatory is based, it is proper, particularly where it relates i to the interrogee's own contention. Interrogatories which ! inquire into the basis of a contention serve the dual purposes i of narrowing the issues and preventing surprise at trial. I Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 NRC 490, 493-94 (1983); Kerr-McGee Chemical Coro. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 81 (1986). O MARCH 1988 PREHEARING MATTERS 128
n f [ s 2.11.3 2.11.3 Discovery Against the Staff I Discovery against the Staff is on a different footing than discovery in general. _OD1umers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96, 97-98 (1981); Pennsyl-vania Power & Liaht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317,.323 (1980). Discovery against the NRC Staff is not governed by the general rules but, instead, is governed by special provisions of the regulations. S_qe, e.a., 10 CFR 55 2.740(f)(3), 2.740a(j) and 2.741(e). Special provisions for discovery against the Staff are contained in 10 CFR s 2.720(h)(2)(1) (depositions);
@ 2.720(h)(2)(ii) (interrogatories); ss 2.744, 2.790 (pro-duction of records and documents).
Depositions of named NRC Staff members may be required only upon a showing of exceptional circumstances. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-81-4,13 NRC 216 (1981); 10 CFR 6 2.720(h)(2). Factors considered in such a showing include whether: disclosure of the information is necessary to a proper decision in the proceeding; the information is not reasonably obtainable from another source; there is a need to expedite the proceeding. Ida at 223,
,o citina, Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), CLI-74-16, 7 AEC 313 (1974).
According to provisions of 10 CFR S 2.720, interrogatories against the Staff may be enforced only upor a showing that the answers to be produced are necessary to a' proper decision in the proceeding. Consumers Power Company (Palisades Nuclear Power Facility), ALJ-80-1, 12 NRC 117, 119 (1980). l Document requests against the Staff must be enforced where relevancy has been demonstrated unless production of the document is exempt under 10 CFR 9 2.790. In that case, and only then, must it be demonstrated that disclosure is necessary to a proper decision in the matter. Palisades, suora. The NRC Staff is not required to compile a list of criticisms of a proposal nor to formulate a position on them in response to an interrogatory. Consolidated Edison Co. of N.Y. (Indian Point, Unit 2), LBP-82-ll3, 16 NRC 1907, 1908 (1982). FEMA (Federal Emergency Management Agency) is acting as a consultant to the NRC in emergency planning matters; there-fore, its employees are entitled to limitations on discovery afforded NRC consultants by 10 CFR @ 2.720(h)(2)(1). Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-61, 18 NRC 700, 701 (1983). O,O MARCH 1988 PREHEARING MATTERS 129
1 9 2.11.4 Provisions of the Memorandum of Understanding between FEMA and l NRC qualify FEMA as an NRC consultant for purposes of 10 CFR , i 92.720(h)(2)(i). Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit I), LBP-83-61, 18 NRC 700, 704 (1983). I J 2.11.4 Responses to Discovery Requests 1 i l It is an adequate response to any discovery request to state that the information or document requested is available in f public compilations and to provide sufficient information to { locate the material requested. Metropolitan Edison Company 1 (Three Mile Island Nuclear Station, Unit No.1), CLI-79-8,10 l NRC 141, 147-148 (1979). An applicant is entitled to prompt answers to interrogatories inquiring into the factual bases for contentions and eviden-tiary support for them, since interveners are not permitted to make skeletal contentions and keep the bases for them secret. l Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP- l 81-52, 14 NRC 901, 903 (1981), citina, Pennsylvania Power and j Liaht Co. and Alleahenv Electric Cooperative. Inc. (Susque- j hanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC l 317 (1980); Kerr-McGee Chemical Coro. (West Chicago Rare i Earths Facility), LBP-86-4, 23 NRC 75, 81-82 (1986). An j intervenor's failure to timely answer an applicant's inter- : rogatories is not excused by the fact that the delay in answering the interrogatories might not delay the remainder of the proceeding. West Chicaao, supra, 23 NRC at 82. Answers to interrogatories should be complete in themselves. The interrogating party should not need to sift through documents or other materials to obtain a complete answer. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1421 n.39 (19.82), citina, 43 Mo.o ore's Federal Practice 33.25(1) at 33-129-130 (2d ed.1981). 10 CFR 9 2.740(b)(1) provides in part that: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding ... including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Answers to interrogatories or requests for documents which do not comply with this provision are inadequate. Illinois Power A (Clinton Power Station, Unit 1), LBP-81-61, 14 NRC 1735, 1737-1738 (1981). MARCH 1988 PREHEARING MATTERS 130
s 9 2.11.5 v Pursuant to 10 CFR s 2.741(d), a party upon whom a request for the production of documents is served is required to serve, within 30 days, a written response stating either that the requested inspection will be permitted or stating its reasons < for objecting to the request. A response must state, with respect to each item or category, either that inspection will be permitted or that the request is objectionable for specific reasons. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1152 (1982). A Board may require a party, who has been served with a discovery request which it believes is overly broad, to explain why the request is too broad and, if feasible, to interpret the request in a reasonable fashion and supply documents (or answer interrogatories) within the realm of reason. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-41, 22 NRC 765, 768 (1985). A request for documents should not be deemed objectionable solely because there might be some burden attendant to their production. Shoreham, suora, 16 NRC at 1155. Pursuant to 10 CFR S 2.740(f)(1), failure to answer or respond shall not be a excused on the ground that the discovery sought is objection-able unless the person or party failing to answer or respond
;N-} has applied for a protective order pursuant to 10 CFR 9 2.740(c). A party is not required to seek a protective order ,
when it has, in fact responded by objecting. An evasive or incomplete answer or response shell be treated as a failure to answer or respond. Shoreham, suorg, 16 NRC at 1152. Where interveners have filed consolidated briefs they may be treated as a consolidated party; one intervenor may be appointed lead intervenor for purposes of coordinating responses to discovery, but discovery requests should be served on each party intervenor. Cleveland Electric Illumi-natina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-35, 14 NRC 682, 687-688 (1981). The involvement of a party's attorneys in litigatic,n or other professional business does not excuse noncompliance with, nor extend deadlines for compliance with, discovery requests or other rules of practice, and is an inadequate response to a motion to compel discovery. Commonwealth Edison Co. (Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, 373 (1981). 2.11.5 Compelling Discovery Discovery can be compelled where the person against whom [3 discovery is sought resists (See 10 CFR 9 2.740(f)). Sub-poenas may also issue pursuant to 10 CFR @ 2.720. () MARCH 1988 PREHEARING MATTERS 131
9 2.11.5 In the first instance, no one appears to be immune from an order compelling discovery. The ACPS, for example, has been j ordered to provide materials which it declined to provide l voluntarily. Viroinia Electric Power Co. (North Anna Power .I Station, Units 1 & 2), CLI-74-16, 7 AEC 313 (1974). Neverthe-less, where discovery is resisted by a nonparty (discovery against nonparties impliedly permitted under language of 10 1 CFR.@@'2.720(f), 2.740(c)), a greater showing of relevance and materiality appears to be necessary, and a party seeking j discovery must show that: ] (1) information sought is otherwise unavailable; and (2) he has minimized the burden to be placed on the i nonparty. -] Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973); Consumers Power Co. (Midland Plant, Units 1 1
& 2), ALAB-118, 6 AEC 263 (1973). Moreover, Licensing Boards ,
have, on occasion, shown reluctance to enforce the discovery ; rules to the letter against interveners. See, e.a. , Gulf / States Utilities Co. (River Bend Station, Units 1 & 2), LBP- ' 74-74, 8 AEC 669 (1974). Section 2.740 of the NRC's Rules of Practice, under which l J subpoenas are issued, is not founded upon the Commission's general rulemaking powers; rather, it rests upon the specific authority to issue subpoenas duces tecum contained in Section 161(c) of the Atomic Energy Act. Therefore, the rule of FMC
- v. Analo-Canadian Shionino Company, 335 F.2d 255 (9th Cir.
1964) that agency discovery rules cannot be founded on general rulemaking powers does not come into play. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 694 (1970). The information sought by an administrative subpoena need only be " reasonably relevant" to the inquiry at hand. Stanislaus, supra, 9 NRC .2.t 695. Subpoenas must be issued in good faith, and pursuant to legitimate agency investigation. Metropolitan Edison Company (Three Mile Island, Unit 2), CLI-80-22,11 NRC 724, 729 (1980). The referral of matters to the Department of Justice for criminal proceedings, which are separate and distinct from matters covered by subpoenas issued by Director of Office of Inspection and Enforcement, does not bar Commission i from pursuing its general health and safety and civil enforcement responsibilities through issuance of subpoena. l Section 161(c) of Atomic Energy Act, 42 U.S.C. @ 2201(c). MARCH 1988 PREHEARING MATTERS 132
r 3 6 2.11.5 Metropolitan Edison Company (Three Mile Island, Unit 1), CLI-80-22, 11 NRC 724, 725 (1980). 10 CFR 9 2.720(a) contemplates ex parte applications for the issuance of subpoenas. Although the Chairman of the Licensing Board "may require a showing of general relevance of the testimony or evidence sought," he is not obligated to do so. q The matter of relevance can be entirely deferred until such I time as a motion to quash or modify the subpoena raises the question of relevance. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 698 n.22 (1979). A Licensing Board is required to issue a subpoena if the discovering party has made a showing of general relevance concerning the testimony or evidence sought. Philadelphia flectric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 273, 279 (1987). Section 2.720(f) of the Rules of Practice specifically provides that a Licensing Board may condition the denial of a motion to quash or modify a subpoena duces tecum "on just and reasonable terms." That phrase is expansive enough in reach to allow the imposition of a condition that the subpoenaed person or company be reimbursed for document production costs. (aV) Pacific Gas and Electric Comoany (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 698-699 (1979). Generally, document production costs will not be awarded unless they are found to be not reasonably incident to the conduct of a respondent's business. Stanislaus, supra, 9 NRC at 702. Under 10 CFR 9 2.740 and 9 2.740b, the presiding officer of a proceeding will rule upon motions to compel discovery which set forth the questions contained in the interrogatories, the responses of the party upon whom they were served, and arguments in support of the motion to compel discovery. An evasive or incomplete answer or response to an interrogatory shall be treated as a failure to answer or respond. Houston Liahtino & Power ComDany (South Texas Project. Units 1 and 2), LBP-79-5, 9 NRC 193, 194-195 (1979). Specific objections must be made to the alleged inadequacy of discrete responses. South Texas, suora, 9 NRC at 195. A discovering party is entitled to direct answers or objec-tions to each and every interrogatory posed. Objections should be plain enough and specific enough so that it can (~ be understood in what way the interrogatories are claimed i to be objectionable. General objections are insufficient. MARCH 1988 PREHEARING MATTERS 133
i i 9 2.11.5.1 The burden of persuasion is on the objecting party to show that the interrogatory should not be answered, that the j information called for is privileged, not relevant, or in some l way not the proper subject of an interrogatory. Duke Power h (Catawba Nuclear Station, Units 1 and 2), LBP-82-116,16 NRC 1937, 1944 (1982). 1 A motion to compel is required under the rules to set forth detailed bases for Board action, including arguments in support of the motion. 10 CFR 9 2.740(f). This means that relief will only be granted against a party resisting further discovery when the movant gives particularized and persuasive , reasons for it. Generalized claims that answers are evasive i d or that objections are unsubstantial will not suffice. The movant must address each interrogatory, including considera-tion of the objection to it, point by point. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1950 (1982). 2.11.5.1 Compelling Discovery From ACRS and ACRS Consultants Although 10 CFR 9 2.720 does not explicitly cover consultants for advisory boards like the Advisory Committee on Reactor Safeguards (ACRS), it may fairly be read to include them where they have served in that capacity. Therefore, a party seeking to subpoena consultants to the ACRS may do so but must show the existence of exceptional circumstances before the subpoenas will be issued. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-519, 9 NRC 42, 42 n.2 (1979). 2.11.5.2 Sanctions for Failure to Comply with Discovery Orders 10 CFR 9 2.707 authorizes the presiding officer to impose various sanctions on a party for its failure to, among other things, comply with a discovery order. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-83-56,18 NRC 421, 433 (1983). Those sanctions include a finding of facts as to the matters regarding which the order was made in accordance with the claim of the party obtaining the order. Pursuant to 10 CFR 9 2.707, the failure of a party to comply with a Board's discovery order constitutes a default for which a Board may make such orders in regard to the failure as are just. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-83-29A, 17 NRC 1121, 1122 (1983); Kftrr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 80 (1986). A Licensing Board may dismiss the contentions of an intervenor who has failed to respond to an applicant's discovery requests, particularly where the intervenor has failed to file a response to the applicant's motion for MARCH 1988 PREHEARING MATTERS 134
i l
-m l ') 9 2.11.5.2 v
summary disposition. Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 810 (1986). Pursuant to 10 CFR 9 2.707, an intervenor can be dismissed from the proceeding for its failure to comply with discovery orders. Northern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298 (1977); Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975); Public Service Electric & Gas Co. (Atlantic Generating Station, Units 1 & 2), LBP-75-62, 2 NRC 702 (1975). ! A licensee's motion for sanctions against an intervenor for i failure to comply with discovery requests poses a three part consideration: (1) due process for the licensee; (2) due process for the intervenor; and (3) an overriding considera-tion of the public interest in a complete evidentiary record. . Metropolitan Edison Company (Three Mile Island Nuclear ! Station, Unit 1), LBP-80-17, 11 NRC 893, 897 (1980). Counsel's alleptions of certain problems as excuses for intervenor's failure to provide discovery did not justify
,r m reconsideration of the Board's imposition of sanctions for such failure, where such allegations were expressly dealt with (v') in the Board's order compelling discovery. Nor can an intervenor challenge the sanctions on the grounds that other NRC cases involved lesser sanctions, where the intervenor has willfully and deliberately refused to supply the evidentiary bases for its admitted contentions. Commonwealth Edison Co,.
(Byron Nuclear Power Station, Units 1 and 2), LBP-82-5, 15 NRC , 209, 213-214 (1982). See, however, ALAB-678, 15 NRC 1400 ' (1982), reversing the Byron Licensing Board's dismissal of intervenor for failure to comply with discovery orders on the ground that such a sanction was too severe in the circum-stances. The sanction of dismissal from an NRC licensing proceeding is to be reserved for the most severe instances of a par-ticipant's failure to meet its obligations. In selecting a sanction, Licensing Boards are to consider the relative importance of the unmet obligation; its potential harm to other parties or the orderly conduct of the proceeding; whether its occurrence is an isolated incident or a part of a pattern of behavior; the importance of the safety or environmental concerns raised by the party and all of the circumstances. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400 (1982), citina, Statement of Policy on Conduct of Licensino Pro-CT ceedinas, CLI-81-8, 13 NRC 452, 454 (1981); Duke Power Co. Q (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 MARCH 1988 PREHEARING MATTERS 135
p q W 1 1 i 9 2.11.5.2 NRC 1937, 1947 (1982); Public Service Co. of New Hamoshire j (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586, 590 j (1983), citina, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 392 (1983); Kerr-McGee Chemical Coro. (Kress Creek Decontamination), LBP-85-48, 22 NRC 843, 848-49 (1985); Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-86-4, 23 NRC 75, 80-81 (1986). The refusal of any party to make its witaesses available to j participate in the prehearing examinations is an abandonment ! of its right to present the subject witness and testimony. An j intervenor's intentional waiver of both the right to cross- j examine and the right to present witnesses amounts to an 1 effective abandonment of their contention. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1935, 1936 (1982). 4 Although failure to comply with a Board order to respond to interrogatories may result in adverse findings of fact, the Board need not decide what adverse findings to adopt until action is necessary. When another procedure has been adopted requiring interveners to shoulder the burden of going forward on a motion for summary disposition, it may be appropriate to await intervenor's filing on summary disposition, before deciding whether or not to impose sanctions for failure to respond to interrogatories pursuant to a Board order. Sanctions only will be appropriate if failure to respond prejudices applicant in the preparation of its case. Wisconsin Electric Power Go om (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-10, 15 NRC 341, 344 (1982). Where an intervenor has failed to comply with discovery requests and orders, the Licensing Board may alter the usual order of presentation of evidence and require an intervenor that would normally follow a licensee, to proceed with its case first. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1245 (1984), rev'd in oart on other arounds, CL1-85-2, 21 NRC 282 (1985). See Liorthern States Power Co. (Tyrone Energy Park, Unit 1), LBP-77-37, 5 NRC 1298, 1300-01 (1977), cited with aooroval in Pennsylvania Power and Liaht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 517, 338 (1980); i Public Service Co. of Indiana (Marble Hill Nuclear Generating i Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978); 10 CFR s 2.731; 10 CFR Part 2, Appendix A, s V(d)(4); 5 U.S.C.
@ 556.
O' MARCH 1988 PREHEARING MATTERS 136
v) 2.11.6 Appeals of Discovery Rulings 9 2.11.6 A Licensing Board order granting discovery against a third party is a final order and may be appealed; an order denying such discovery is interlocutory, and an appeal is not permitted. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973); Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-Il6, 6 AEC 258 (1973). A discovery order entered against a nonparty is a final order and thus is appealable. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), ALAB-550, 9 NRC 683, 686 n.1 (1979); {pnsumers Power Co. (Midland Plant, Units 1 and 2), ALAB-764, 19 NRC 633, 636 n.1 (1984). Where a nonparty desires to appeal a discovery order against him, the proper procedure is for such person to enter a special appearance before the Licensing Board and then appeal to the Appeal Board. Kanses Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-311, 3 NRC 85 (1976). i To establish reversible error from the curtailment of
;,rU ]f discovery procedures, a party must demonstrate that such curtailment made it impossible to obtain crucial evidence.
Implicit in such a showing is proof that more diligent discovery was impossible. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 858, 869 (1975). The Appeal Board has refused to review a discovery ruling referred to it by a Licensing Board when the Board below did not explain why it believed Appeal Board involvement was necessary, where the losing party had not indicated that it was unduly burdened by the ruling and where the ruling was not novel. Consumers Power Company (Midland Plant, Units 1 & 2), ALAB-438, 6 NRC 638 (1977). The aggrieved party must make a strong showing that the impact of the discovery order upon that party or upon the public interest is indeed " unusual." & Questions about the scope of discovery concern matters which are particularly within a trial board's competence and appellate review of such rulings is usually best conducted at the end of case. Pennsylvania Power & Liaht ComDany (Susque-hanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 321 (1980). (- b MARCH 1988 PREHEARING MATTERS 137
l L tj TABLE OF CONTENTS HEARINGS 3.0 HEARINGS H1 3.1 Licensina Board H1 3.1.1 General Role of Licensing Board HI 3.1.2 Powers / Duties of Licensing Board . H3 3.1.2.1 Scope of Jurisdiction of Licensing Board H4 3.1.2.1.1 Authority in Construction Permit Proceedings Distinguished From Authority in Operating License Proceedings H 11 3.1.2.2 Scope of Authority to Rule on Petitions and Motions H 13 3.1.2.3 Authority of Licensing Board to Raise Sua Soonte Issues H 15 3.1.2.4 Expedited Proceedings; Timing of Rulings H 18 3.1.2.5 Licensing Board's Relationship with the NRC Staff H 20 ; 3.1.2.6 Licensing Board's Relationship with Other Agencies H 24 3.1.2.7 Conduct of Hearing by Licensing Board H 25 3.1, Quorum Requirements for Licensing Board Hearing H 29 73 3.1.A Disqualification of a Licensing Board Member H 30 i 3.1.4.1 Motion to Disqualify Adjudicatory Board Member H 30
/j
( 3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member H 32 3.1.4.3 Improperly Influencing in Adjudicatory Board Decision H 36 3.1.5 Resignation of a Licensing Board Member H 36 3.2 Export Licensina Hearinas H 36 3.2.1 Scope of Export Licensing Hearings H 36 3.3 Hearina Schedulina Matters H 37 3.3.1 Scheduling of Hearings H 37 3.3.1.1 Public Interest Requirements re Hearing Schedule H 38 3.3.1.2 Convenience of Litigants re Hearing Schedule H 39 3.3.1.3 Adjourned Hearings (Reserved) H 39 3.3.2 Postponement of Hearings H 39 3.3.2.1 Factors Considered in Hearing Postponement H 39 3.3.2.2 Effect of Plant Deferral on Hearing Postponement H 40 3.3.2.3 Sudden Absence of ASLB Hember at Hearing H 40 3.3.2.4 Time Extensions for Case Preparation Before Hearing H 41 3.3.3 Scheduling Disagreements Among Parties H 41 3.3.4 Appeals of Hearing Date Rulings H 42 3.3.5 Location of Hearing (Reserved) H 42 3.5.5.1 Public Interest Requirements re Hearing
,n Location (Reserved) H 42
( 3.3.5.2 Convenience of Litigants Affecting Hearing Location H 43 SEPTEMBER 1988 HEARINGS - TABLE OF CONTENTS i
ii JABLE OF CONTENTS HEARINGS 3.3.6 Consolidation of Hearings and of Parties H 43 3.3.7 In Camera Hearings H 44 3.4 Issues for Hearina H 44 3.4.1 Intervenor's Contentions - Admissibility at Hearing H 47 3.4.2 Issues Not Raised by Parties H 49 l 3.4.3 Issues Not Addressed by a Party H 51 l 3.4.4 Separate Hearings on Special Issues H 51 ! 3.4.5 Construction Permit Extension Proceedings H 52 ! 3.4.6 Export Licensing Proceedings Issues H 55 3.5 Summary Disposition H 55 , (SEE ALSO 5.8.5) I 3.5.1 Use of Summary Disposition H 58 l 3.5.1.1 Construction Permit Hearings H 58 l 3.5.1.2 Amendments to Existing Licenses H 58 ) 3.5.2 Motions for Summary Disposition H 59 3.5.2.1 Time for Filing Motions for Summary Disposition H 60 3.5.2.2 Time for Filing Response to Summary Disposition Motion H 61 3.5.2.3 Contents of Motions / Responses (Summary Disposition) H 61 3.5.3 Summary Disposition Rules H 64 3.5.4 Content of Summary Disposition Order H 67 3.5.5 Appeals From Rulings on Summary Disposition H 68 3.6 Attendance at and Participation in Hearinas H 68 3.7 Burden and Means of Proof H 70 3.7.1 Duties of Applicant / Licensee H 71 3.7.2 Intervenor's Contentions - Burden and Means of Proof H 72 3.7.3 Specific Issues - Means of Proof H 74 3.7.3.1 Exclusion Area Controls H 74 3.7.3.2 Need for Facility H 75 3.7.3.3 Burden and Means of Proof in Interim Licensing Suspension Cases H 76 3.7.3.4 Availability of Uranium Supply H 77 3.7.3.5 Environmental Costs (Reserved) H 77 3.7.3.5.1 Cost of Withdrawing Farmland from Production H 77 (SEE ALSO 6.15.6.1.1) 3.7.3.6 Alternate Sites Under NEPA H 78 3.7.3.7 Management Capability H 78 3.8 Burden of Persuasion (Dearee of Proof) H 79 3.8.1 Environmental Effects Under NEPA H 80 3.9 Stipulations H 80 SEPTEMBER 1988 HEARINGS - TABLE OF CONTENTS ii
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TABLE OF CONTENTS HEARINGS 3.10 Official Notice of Facts H 80 3.11 Evidence H 82 3.11.1 Rules of Evidence H 83 3.11.1.1 Admissibility of Evidence H 83 3.11,1.1.1 Admissibility of Hearsay Evidence H 84 3.11.1.2 Hypothetical Questions H 85 3.11.1.3 Reliance On Scientific Treatises, Newspapers, Periodicals H 85 3.11.1.4 Off-the-Record Comments H 86 3.11.1.5 Presumptions and Inferences H 86 3.11.1.6 Government Documents H 86 3.11.2 Status of ACRS Letters H 86 3.11.3 Presentation of Evidence by Interveners H 87 3.11.4 Evidentiary Objections H 87 3.12 Witnesses at Hearina H 88 3.12.1 Compelling Appearance of Witness H 88 fs 3.12.1.1 NRC Staff as Witnesses H 89 I ) 3.12.1.2 ACRS Members as Witnesses H 89
\s_ / 3.12.2 Sequestration of Witnesses H 89 3.12.3 Board Witnesses H 90 3.12.4 Expert Witnesses H 01 3.12.4.1 Fees for Expert Witnesses H 92 3.13 Cross-Examination H 93 3.13.1 Cross-Examination by Interveners H 94 3.13.2 Cross 27 amination by Experts H 97 3.13.3 Inabi it' to Cross-Examine as Grounds to Reopen H 97 3.14 Record of Hearina H 97 3.14.1 Supplementing Hearing Record by Affidavits H 97 3.14.2 Reopening Hearing Record H 98 3.14.3 Material Not Contained in Hearing Record H 100 3.15 Interlocutory Review via Directed Certification H 101 3.16 Licensina Board Findinas H 103 3.16.1 Independent Calculations by Licensing Board H 106 3.17 Res Judicata and Collateral Estoppel H 106 3.18 Termination of Proceedings H 112 3.18.1 Procedures for Termination H 112 3.18.2 Post-Termination Authority of Commission H 112 7'~'.
SEPTEMBER 1988 HEARINGS - TABLE OF CONTENTS iii
l 1^
,m I ! 9 3.1.1
'd 3.0 HEARINGS 3.1 Licensina Board 3.1.1 General Role of Licensing Board -
The general role of the Licensing Board is outlined in Appendix A to Part 2 of 10 CFR. In contested construction permit proceedings, the Board must make a determination as to the issues set out in 10 CFR Part 2, Appendix A, 6 VI(c)(1) and (3) as well as any issues raised by the parties. In an uncontested CP proceeding, the Board must make the determina-tions listed in 10 CFR Part 2, Appendix A, & VI(c)(2) and (3). A Licensing Board is required to issue an initial decision in a case involving an application for a construction permit even , if the proceeding is uncontested. United States Department of ! Enerav. Pro.iect Manaaement Coro.. Tennessee Valley Authority (Clinch River Breeder Reactor. Plant), ALAB-761, 19 NRC 487, 489 (1984), citina, 10 CFR s 2.104(b)(2) and (3). In operating licensing proceedings as to radiological safety
. ,- matters, the Board is to decide those issues put in contro-
.( versy by the parties (10 CFR Part 2, Appendix A, 9 VIII(b)).
In addition, the Board must require evidence and resolution of any significant safety matter of which it becomes aware regardless of whether the parties choose to put the matter in controversy. 10 CFR Part 2, Appendix A, 6 VIII(b). See also Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 524-25 (1973); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 362 (1973). Normally, the Licensing Board is charged with compiling a factual record in a proceeding, analyzing the record, and making a determination based upon the record. The Commission will assume these functions of the Licensing Board only in extraordinary circumstances. Washinaton Public Power Sucolv System (WPPSS Nuclear Project Nos. 3 & 5), CLI-77-11, 5 NRC 719, 722 (1977); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154, 1155 (1984). A Licensing Boara is not required to do independent research or conduct de novo review of an application in a contested proceeding, but may rely upon uncontradicted Staff and applicant evidence. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 334-35 (1973); Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, (1972), p aff'd, UCS v. AEC, 499 F.2d 1069 (D.C. Cir. 1974). DECEMBER 1985 HEARINGS 1 m--__-.--_-_-----__-.._------------ - - - - - - - = - - - - - . - - - - - - - -
i S 3.1.1 A Licensing Board is not merely an evidence gathering body, Rather, it has the responsibility for appraising ab initio the record developed before it and for formulating the agency's initial decision based on that appraisal. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 322 (1972). Licensing Boards have a duty not only to resolve contested issues, but to articulate in reasonable , detail the basis for the course of action chosen. A Board must do more than reach conclusions; it must confront the facts. Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1087 n.12 (1983),citina ublic Service Co. of New Hampshire (Seabrook Station, Unit . and 2), ALAB-422, 6 NRC 33, 41 (1977). J_qg Aliq Carolir e'ower and Liaht Co. and North Carolina Eastern Municipal ; swer Aaency (Shearoa Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 811 (1986); Philadelphia Electric Co. j (Limerick Generating Station, Units 1 and 2), ALAB-857, 25 NRC ; 7, 14 (1987). However, a Licensing Board is not required to refer specifically to every proposed finding. Limerick, suora, 25 NRC at 14. ; I Licensing Boards are bound to comply with Appeal Board ! directives, whether they agree with them or not. The same is l true with respect to Commission review of Appeal Board action I and judicial review of agency action. Any other alternative l would be unworkable and would unacceptably undermine the 4 rights of the parties. South Carolina Electric and Gas Co. { (Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 NRC i 25, 28 (1983). It is appropriate for the Board to address issues concerning j the confidentiality of a portion of its record, regardless of l whether the issue was raised by a party. Such an action is 1 within the Board'c general authority to respond to a "propo-sal" that a document be treated as proprietary and is not a i prohibited sua sponte action of the Board. Wisconsin Electric j Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP- j 82-5A, 15 NRC 216, 220 (1982); LBP-82-6, 15 NRC 281 (1982); ' and LBP-82-12, 15 NRC 354 (1982). Where a matter has been considered by the Commission, it may i not be reconsidered by a Board. Commission precedent must be followed. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 Nnc 451, 463-65 (1980); Pacific Gas and Electric Co. (Diablo Canyon Nuclear - Power Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 859, 871-72 (1986). Licensing Boards are capable of fairly judging a matter on a full record, even where the Commission has expressed tentative views. . Nuclear Enaineerina Comcany. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 4-5 (1980). JUNE 1987 HEARINGS ?
1
; ; 9 3.1.2 A Licensing Board may conduct separate hearings on environ-mental, and radiological health and safety :ssues. Absent persuasive reasons against segmentation, contentions raising environmental questions need not be heard at the health and safety stage of a proceeding notwithstanding the fact they may involve public health and safety considerations. Pennsylvania Power and Liaht Company (Susquehanna Steam Electric Station, Units 1 and 2), LBP-80-18, 11 NRC 906, 908 (1980).
It is impractical to delay licensing proceedings to await l ASME action. The responsibility of the Board is to form its own independent conclusions about licensing issues. Regula-tions that reference the ASME code were not intended to give over the Commission's full rulemaking authority to a private organization on an ongoing basis; nor is a private organiza- . tion intended to become the authority concerning criteria ! necessary to the issuance of a license. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-33, 18 NRC 27, 35 (1983). 3.1.2 Powers / Duties of Licensing Board The Licensing Board has the right and duty to develop a full n record for decisionmaking in the public interact. Texas i Utilities Generatina Co. (Comanche Peak Steat Electric V Station, Units 1 and 2), LBP-82-87, 16 NRC 1195, 1199 (1982). Licensing Boards are authorized to certify questions or re^ r rulings to the Appeal Board. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-83-28,17 NRC 987, 989 n.1 (1983). When new information is submitted to the Licensing Board, it has the responsibility to review the information and decide whether it casts sufficient doubt on the safety of a facility. Cleveland Electric Illuminating Co. (Perry Nuclear Power , Plant, Units 1 and 2), LBP-83-52,18 NRC 256, 258 (1983). A Licensing Board is required to issue an initial decision in a case involving an application for a construction permit even if the proceeding is uncontested. United States Department of , Enerav. Proiect Manaaement Coro.. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-761,19 NRC 487, 489 (1984), citina, 10 CFR 9 2.104(b)(2) and (3). Although the limited work authorization and construction permit aspects of the case are simply separate phases of ! the same proceeding, Licensing Boards have the authority
)
MARCH 1987 HEARINGS 3
1 l
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I 5 3.1.2.1 to regulate the course of the proceeding and limit an intervenor's participation to issues in which it is in-terested. Clinch River, suora, 19 NRC at 492, citina, 10 CFR SS 2.718 and 2.714(e) and (f). A Board may express its preliminary concerns based on its review of early results from an applicant's intensive review l program which seeks to verify the design and construction quality assurance of the facility. The Board's expression of its concerns during an early stage of the program may enable the applicant to modify its program in order to address more effectively the Board's concerns and questions. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-86-20, 23 NRC 844, 845 (1986). 3.1.2.1 Scope of Jurisdiction of Licensing Board i A Licensing Board has only the jurisdiction and power which the Commission delegates to it. Public Service Co. of . j Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-316, 3 NRC 167 (1976); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985); Public Service Co. of Indiana and Wabash Valley Power q anociation (Marble Hill Nuclear Generating Station, Units l 1 and 2), LBP-86-37, 24 NRC 719, 725 (1986); Lona Island i Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP- l 88-7, 27 NRC 289, 291 (1988). See also Consolidated Edison ) Co. of N.Y.: Power Authority of the State of N.Y. (Indian 1 Point, Unit No. 2; Indian Point, Unit No. 3), LBP-82-23, 15 NRC 647, 649 (1982). Nevertheless, it has the power in the first instance to rule on the scope of its jurisdiction when ; it is challenged. Kanses Gas & Electric Co. (Wolf Creek i Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293, 2?2 /1976), aff'd, CLI-77-1, 5 NRC 1 (1977); Cincinnati Gas and $1ectric Co. (William H. Zimmer Nuclear Power Station, Ur.it 1), LBP-83-58, 18 NRC 640, 646 (1983), citina, D_ukg oower Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980); Kerr-McGee Corp. (Kress Creek l Decontamination), ALAB-867, 25 NRC 900, 905 (1987). Once a board determines it has jurisdiction, it is entitled to proceed directly to the merits. Zimmer, suora, 18 NRC at 64, citina, Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-597, 11 NRC 870, 873 (1980). The effect of a Policy Statement of the Commission that deprives a Board of jurisdiction, is to prohibit that Board from inquiring into the procedural regularity of the policy statement. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-69,16 NRC 751 (1982). After the issuance of a Licensing Board's initial deci-sian on a particular issue, exclusive jurisdiction over JUNE 1988 HEARINGS 4
b l-( ] l
.q 9 3.1.2.1 the issue lies with the Appeal Board. Section 2.717(a) of the Rules of Practice is reconcilable with 2.718(j) in that the identity of-the presiding officer with exclusive jurisdic-tion over a particular issue changes as the proceeding moves up the appellate ladder. The parties should not be able to bestow jurisdiction on a presiding officer by selecting the tribunal for the relief sought by a motion. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),
LBP-82-86, 16 NRC 1190, 1191, 1193 (1982). Absent special circumstances,'a Licensing Board may consider-ab initio whether it has power to_ grant relief that has been specifically sought of it. Every tribunal possesses inherent rights and duties to determine in the first instance its own jurisdiction. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-591, 11 NRC 741, 742 (1980). A Licensing Board's jurisdiction is defined by the Commis-sion's notice of hearing. Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426 (1980); Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558, 565 (1980);
.Qincinnati Gas and Electric Company (William H. Zimmer Nuclear Station), LBP-79-24,10 NRC 226, 298 (19~:;); (htkg (3
sj Power Co. (Catawba Nuclear Station, Units 1 and 2), AL.58-825, 22 NRC 785, 790 (1985). Sag Alfred J. Morabito (Senior
' Operator License for Beaver Valley Power Station, Unit 1), i LBP-87-23, 26 NRC 81,~84 (1987); General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1),
ALAB-881, 26 NRC 465, 476 (1987). A Licensing Board generally can neither enlarge nor contract the jurisdiction conferred by the Commission. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790 (1985), citina, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645, 647 (1974); Three Mile Island, suora, 26 NRC at 476. Where the Commission's notice of hearing is general and only refers to the application for an operating license, a Licensing Board has jurisdiction to consider all matters contained in the application, regardless of ;hether the matters were specifically listed in the notice-of hearing. Catawba, supra, 22 NRC at 791-92 (application for an operating license contained proposal for spent fuel storage). A reconstituted Licensing Board is legally competent to rule on all matters within its jurisdiction, including a party's objections to any orders issued by the original Licensing n Board prior to the reconstitution of the Board. Lona Island 1 ( ) Liahting Co. (Shoreham Nuclear Fower Station, Unit 1), LBP- '
.V 86-38A, 24 NRC 819, 821 (1986).
JUNE 1988 HEARINGS 5
d 9 3.1.2.1 ; A Licensing Board does not have the jurisdiction to refer NRC examination cheaters for criminal prosecution, nor does it have authority over formulation of generic Staff procedures for administering NRC examinations. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56,16 NRC 281, 302, 372 (1982). The NRC's regulations do not contain provisions conferring jurisdiction on Licensing Boards to impose fines sua soonte. The powers granted to a Licensing Board by 10 CFR 9 2,718 to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order do not include the power to impose a civil penalty. 10 CFR 9 2.205(a) confers the authority to institute a civil penalty proceeding only upon the NRC's Director of Nuclear Reactor Regulation, the Director of Nuclear Material Safety and Safeguards, and the Director, Office of Inspection and Enforcement. A Licensing Board becomes involved in a civil penalty proceeding only if the person charged with a violation requests a hearing. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CLI-82-31,16 NRC 1236, 1238 (1982); le_q 10 CFR 9 2.205(f). In a previously uncontested operating license proceeding, a Licensing Board has the jurisdiction to entertain a late-filed petition to intervene and to decide the issues raised by it until the Commission exercises its authority to license full power operation. The Board's jurisdiction does not terminate until the time the Commission issues a final decision or the time expires for Commission certification of record. Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), LBP-82-92, 16 NRC 1376, 1380-1381 (1982). i The five notices and orders by which authority may be dele- ! gated to a Licensing Board include an order to show cause (10 l CFR @ 2.202); an order calling for a hearing on imposition of I civil penalties (10 CFR S 2.205(e)); a notice of hearing on an application for which a hearing must be provided (10 CFR 6 2.104); a notice of opportunity for a hearing on an applica-tion not covered by 10 CFR H 2.104 (10 CFR s 2.105); and notice of opportunity for a hearing on antitrust matters (10 CFR ! 2.102(d)(3)). Where certain issues sought to be raised by an intervenor are not fairly within the scope of the issues for the proceeding as set forth in the Commission's notice of hearing, such i additional issues are beyond the jurisdiction of the Licensing ) Board to decide. Union Electric Co. (Callaway Plant, Units 1 !
& 2), LBP-78-31, 8 NRC 366, 370-371 (1978); Duke Power Co. ;
(Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC ; } 785, 790-91 (1985). j l MARCH 1988 HEARINGS 6 1 m_______ . - - - - -- .i
i
- S 3.1.2.1
! L V A Licensing Board which has been authorized to consider only the-question of whether fundamental flaws were revealed by an exercise of an applicant's emergency plan does not also have the authority to retain jurisdiction to determine whether the flaws have been corrected. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-7, 27 NRC 289, 291 (1988). A Licensing Board which has been granted jurisdiction to preside over an operating license proceeding does not have jurisdiction to consider issues which may be raised by potential applications for operating license amendments. l Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-87-19, 25 NRC 950, 951 (1987), recon-sideration denied, LGP-87-22, 26 NRC 41 (1987), both vacated as moot, ALAB-874, 26 NRC 156 (1987). A Licensing Board's power in a license amendment proceeding is limited by the scope of the proceeding. Thus, in considering an amendment to transfer part ownership of a facility, a Licensing Board held that questions concerning the legality of transferring some ownership interest in advance of Commission action on the amendment was outside its jurisdiction and should be pursued under the provisions of 10 CFR Part 2,
,em subpart B (dealing with enforcement) instead. Detroit Edison Comoany (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11,
( V) 7 NRC 381, 386 (1978). In a license amendment proceeding, a Licensing Board has only limited jurisdiction. The Board msy admit a party's issues for hearing only insofar as those issues are within the scope of matters outlined in the Commission's notice of hearing on the licensing action. Wisconsin Electric Power fo. (Point Beach Nuclear Plant, Units I and 2), ALAB-739,18 NRC 335, 339 (1983), citina, Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289 n.6 (1979) and Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976). The Commission's delegation of authority to a Licensing Board to conduct any necessary proceedings pursuant to 10 CFR Part 2, Subpart G includes the authority to permit an applicant for a license amendment to file contentions in a hearing requested by other parties even though the applicant may have waived its own right to a hearing. There are no specific regulations which govern the filing of contentions by an applicant. However, since an applicant is a party to a proceeding, it should have the same rights as other parties to the proceed-ing, which include the right to submit contentions, 10 CFR 9 2.714, and the right to file late contentions under certain
/~'s conditions, 10 CFR @ 2.714(a). Kerr-McGee Chemical Coro.
(") (West Chicago Rare Earths Facility), LBP-84-42, 20 NRC 1296, 1305-1307 (1984). JUNE 1988 HEARINGS 7
l S 3.1.2.1 A hearing is not mandatory on an operating license, but where a Board is convened it may look at all serious matters it ; , deems merit further exploration. Pacific Gas & Electric Co. !^ (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 227, 229-31 (1980). Where a Licensing Board has jurisdic-o tion to consider an issue, a party to a proceeding before that l Board must first seek relief from the Board; if the Licensing ! , Board is clearly without jurisdiction, there is no need to l present the matter to it for decision. Pacific Gas and ) Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and l 2), CLI-81-6, 13 NRC 443, 446 (1981), citina, Carolina Power and Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, , 2, 3 and 4), CLI-79-5, 9 NRC 607 (1979). l , A Licensing Board for an operating license proceeding is ; limited to resolving matters that are raised therein as { legitimate contentions by the parties.or by the Board sua 4 soonte. 10 CFR 9 2.760a; Consumers Powpr Co. (Midland Plant, Units 1 & 2), ALAB-674, 15 NRC 1101, 1102-03 (1982), citina, Consolidated Edison Co. of N.Y. (Indian Point, Units 1, 2, & 3), ALAB-319, 3 NRC 188, 190 (1976); Lono Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115, 16 NRC 1923, 1933 (1982), citina, 10 CFR 9 2.760a; Union Electric Co. (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205,1216 (1983); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 545 (1986); Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-88-15, 27 NRC 576, 579 (1988). Specifically, the Board's jurisdiction is limited to a determination of findings of fact and conclusions of law on matters put into controversy by the parties to the proceeding or found by the Board to involve a serious safety, environ-mental or common defense and security question. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117A, 16 NRC 1964, 1969-70 (1982); Philadelphia Electric Co, (Limerick Generating Station, Units 1 and 2), ALAB-830, 23 .3 59, 60 & n.1 (1986), vacatina, LBP-86-3, 23 NRC 69 (1986). There is no automatic right to adjudicatory resolution of environmental or safety questions associated with an operating license application. See Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 9 (1976). The Commission's regulations limit operating license proceedings to " matters in controversy among the parties" or matters raised on a Licensing Board's own initiative sua soonte. 10 CFR ss 2.104(c), 2.760a. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2),. ALAB-799, 21 NRC 360, 382 (1985). The Licensing Board may assert jurisdiction over Part 70 material licensing issues raised in conjunction with an ongoing Part 50 licensing proceeding where the Part 70 SEPTEMBER 1988 HEARINGS 8
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i b; 1 jd , 9 3.1.2.1 i materials' license is integral to the project undergoing-licensing consideration. Philadelphia Electric Co. (Limerick
' Generating Station, Units 1 and-2), LBP-84-16, 19 NRC 857,
- 862-65(1984),3ff'd,ALAB-765,519NRC'645,650-51.(1984),
.citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear-Power P1 ant, Unit Nos. I and 2),.CLI-76-1, 3-NRC 73,,74'
, (1976). 4 - - -
~A Licensing Board must: carry out the instructions of the
. Appeal Board as long as -those instructions. are not counter-manded by the Comission. Licensing Boards have.no authority; to pass judgment on the soundness of the. rulings:and instruc-tions of a reviewing appellate tribunal. South Carolina Electric and Gas Co._(Virgil C; Summer Nuclear Station, Unit 1), ALAB-663,'14 NRC 1140, 1150 (1981). Igg Public' Service
~ Co. of New H=ashire (Seabrook Station,' Units 1 and 2), LBP-88-6, 27 NRC 245, 251-52 (1988), aff'd on other arounds, ALAB-892, 27 NRC 485 (1988).
When the Appeal Board remands an issue to the Licensing Board, the pendency of an appeal to the Comission from that-order. does not stay the effect of the order. Consumers Power f& (Big Rock Point Plant), LBP-83-62, .18 NRC 708, 709 (1983). If a Licensing Board believes that circumstances warrant-
- O reopening the record for receipt of additional evidence, it has discretion to take that course of act'.on. Where the Board was faced'with an insufficient _ record for sumary disposition,.
and knew of a document which had not been-introduced into evidence which would support sumary disposition, it was not improper to request submission of the document in support of a-motion for sumary disposition. Cleveland Electric 111uminat-E ina Co. (Perry Nuclear Power Plant, Units l' and 2), ALAB-443, 6 NRC 741, 752 (1977). A Licensing Board is empowered to reopen a proceeding at least until the issuance of its initial decision, but no later-than either the filing of an appeal or the expiration of the period during which the Comission or an Appeal . Board can exercise-its right to review the record. Eq.e 10 CFR 69 2.717(a), 2.760(a), 2.718(j); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-699,16 NRC 1324, 1326, 1327 (1982); Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-83-12, 17 NRC
- 466, 467 (1983); Philadelphia Electric Co. (Limerick Generat-ing Station, Units 1 and 2), LBP-83-25, 17 NRC 681, 683 (1983); Cincinnati Gas and Electr'c Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 646 (1983), citina, Three Mile IslRDd, IMD.E4,16 NRC at 1324.
Until an appeal to an initial decision has been filed,. ! jurisdiction to rule on a motion to reopen lies with the O Licensing Board. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755, 757 SEPTEMBER 1988 HEARINGS 9 l
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6 3.1. P. 1 - (1983}; Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 646 (1983). Where no appeal to an initial decision has been filed within the time allowed and the Appeal Board has neither completed its sua soonte review nor extended the time for doing so, jurisdiction to rule.on a motion .to reopen lies with the Licensing Board. Ljmerick, supra,17 NRC at 757. An adjudicatory board does not.have jurisdiction to reopen a record with respect to an. issue when finality has attached to the resolution of that issue. This conclusion is not altered-by the fact that the Board has another discrete issue pending i before it. Public Service Company of New Hampshira (Seabrook ! Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978). { Where a Licensing Board has retained jurisdiction following i issuance of initial decision to conduct further proceedings, l it has jurisdiction to consider the admissibility of new contentions which are not related to any matter previously litigated. Zimmer, Lup_n,17 NRC at 467. Pursuant to D 2.714(a), a Licensing Board is not authorized to admit conditionally, for any reason, a contention that falls , short of meeting specificity requirements. Duke Power Co. l (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC ; 460, 467 (1982), yacated in oart on other arounds, CLI-83-19, 17 NRC 1041 (1983). Jurisdiction to rule on the admission of contentions, which were filed prior to final agency action and which have never i been litigated, rests with the Licensing Board. Cincinnati ' Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-83-58, 18 NRC 640, 646 (1983). l A Board can authorize or refuse to authorize the issuance of an operating license. It does not, however, have general jurisdiction over the already authorized on-going construction of the plant for which an operating license application is pending, and it cannot suspend such a previously issued permit. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1086 (1982), citina, Consumers Power Com (Hidland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101, 1102-03 (1982). The Staff produces, among other dccuments, the Safety Evaluation Report (SER) and the Draft and Final Environmental Statements (DES and FES). The studies and analyses which result in these reports are made independently by the Staff, and Licensing Boards have no rule or authority in their preparation. The Board does not have any supervisory authority over that part of the application review process that has been entrusted to the Staff. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), SEPTEMBER 1988 HEARINGS 10
1 7m 9 3.1.2.1.1 ) i i d LBP-83-36, 18 NRC 45, 48-49 (1983), citina, New Enaland Power j h (NEP Units 1 and 2), LBP-78-9, 7 NRC 271 (1978). Sgg q Offshore Power Systems (Floating Nuclear Power Plants), ALAB- ! 489, 8 NRC 194, 206-07 (1978). If an intervenor cannot present his case, the proper method to ; institute a proce4 ding by which the NRC would conduct its own investigation is io request action under 10 CFR 9 2.206. It is not the Board's function to as;1st interveners in preparing their ' cases and searding for their expert witnesses. South Carolina Electric and bas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 16 NRC 1183, 1186 (1982). A Licensing Board is not an intervenor's advocate and has no independent obligation to compel the appearance of an intervenor's witness. Carolina Power and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 215 (1986). Licensing Boards have the authority to call witnesses of their own, but the exercise of this discretion must be reasonable and like otner Licensing Board rulings, is subject to appellate review. A Board may take this extraordinary j action only after (1) giving the parties to the proceeding every fair opportunity to clarify and supplement their
/~~% previous testimony, and (2) showing why it cannot reach an
(') I informed decision without independent witnesses. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 NRC 25, 27-28 (1983). Unless a Licensing Board takes action on a motion seeking reconsideration or clarification of a decision disposing of all matters before it, the Board does not retain jurisdiction normally lost, and the motion is effectively denied. Nuclear Fuel Services Inc. and New York State Enerav Research and Development Authority (Western New York Nuclear Service Center), LBP-83-15, 17 NRC 476, 477 (1983). l 3.1.2.1.1 Authority in Construction Permit Proceedings Distin- l guished from Authority in Operating License Proceedings A Licensing Board's powers are not coextensive with that of l the Commission, but are based solely on delegations expressed ; or necessarily implied in regulation or in other Commission I direction. A Licensing Board is not delegated authority to and cannot order a hearig in the public interest under 10 CFR s 2.104(a). The notice con:tiSi.ing a construction permit Licensing Board does not provide a basis for it to order a hearing on whether an operating license should be granted. A construction permit Licensing Board's jurisdiction will usually terminate before an operating license application is
/] filed. Thus, it probably never could be delegated authority (j to determine whether a hearing on the operating license application is needed in the public interest. Similarly, the SEPTEMBER 1988 HEARINGS II
p l. 9 3.1.2.1.1 l l ' general authority of a Licensing Board to condition permits 1 or licenses provides no basis for it to initiate other adjudicatory proceedings. Carolina Power & Liuht Co. (Shearon Harris Nuclear Power. Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18 (1980); reconsidered, ALAB-581, 11 NRC 233 (1980); modified, CLI-80-12, 11 NRC 514 (1980). A Licensing Board is limited in the types of actions it may take in a construction permit proceeding. Although it may impose conditions on the granting of a construction permit, it may not require the applicant to submit a different applica-tion. In a review of alternate sites, for example, a , Licensing Board is not authorized to suggest or select preferable alternate sites or to require the applicant to - i reapply for a construction permit at a specified new site. The Board may only accept or reject the site proposed in the application or accept ft with certain conditions. Given the limited number of appropriate responses to a construction permit application, a Licensing Board should deny a construc-tion permit on the grounds of availability of preferable alternate sites only when the alternate site is obviously superior to the proposed site. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977). In operating license proceedings, as distinguished from those involving construction permits, the role of NRC adjudicatory boards is quite limited insofar as uncontested matters are concerned. Virainia Electric & Power Co. (North Anna Nuclear i Power Station, Units 1 & 2), ALAB-491, 8 NRC 366, 370-71 ! (1978). In Houston Lichtina & Power Co. (South Texas Project, Units 1
& 2), ALAB-381, 5 NRC 582, 589-91 (1977), the Appeal Board determined that a second Licensing Board, constituted after an initial decision in a construction permit proceeding had been issued and the jurisdiction of the original Licensing Board had terminated, lacks authority to grant a petition for .
untimely intervention unless specifically delegated this t authority by the Commission's regulations or one of the five notices or orders discussed in Section 3.1.2.1., suora. The Appeal Board reasoned that Commission regulations providing for the automatic termination of the jurisdiction of the original Licensing Board revealed a policy for reasonable, timely termination of litigation. This policy would be frustrated if the second Licensing Board could, merely by its creation, reactivate and " inherit" the expired authority of the original Board. Since a Licensing Board has no indepen-dent authority to initiate adjudicatory proceedings ( R. at 592), and since the requisite authority was neither "in-herited" nor specifically granted the second . Board, that Board lacked authority to grant an untimely petition for inter-vention. Thus, the mere designation of a Licensing Board to SEPTEMBER 1988 HEARINGS 12 5
9 3.1.2.2 ( )
'~'
entertain a petition does not in itself confer the requisite authority to grant the petition. Sf_c Philadelphia Electric h (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-389, 5 NRC 727 (1977). As a corollary, a Licensing Board cannot order a hearing in the absence of a pending construc-tion permit or operating license proceeding, or some other proceeding which might arise upon the issuance of one of the five notices or orders listed above. South Texas, supra, 5 NRC at 592; Florida Power & ljaht Co. (St. Lucie Plant, Units 1 & 2) (Turkey Point, Units 3 & 4), LBP-77-23, 5 NRC 789 (1977). A Licensing Board is vested with the power to dismiss an application with prejudice. See 10 CFR 99 2.107(a), 2.721(d). Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967, 974 (1981). A Licensing Board for an operating license proceeding does not l have general jurisdiction over the already authorized ongoing construction of the plant for which an operating license application is pending, and it cannot suspend the previously l issued construction permit. An intervenor wishing to halt such construction must file a petition under 10 CFR 9 2.206 with the appropriate Commission official. Consumers Power Co. I (Midland Plant, Units 1 and 2), ALAB-674, 15 NRC 1101, 1103 I (1982). SSS Philadelphia Electric Co. (Limerick Generating fn / i Station, Units 1 and 2), ALAB-785, 20 NRC 848, 870-871 (1984), t I (.) A Licensing Board is not authorized to crder an applicant for an operating license to pursue options and alternatives to its application, such as the abandonment of'an entire unit of a plant. The Board must consider the application as it has been presented. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 884 (1984). An operating license proceeding is not intended to provide a forum for the reconsideration of matters originally within the scope of the construction permit proceeding. Ehiladelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 591 (1985). In an operating license proceeding, the Commission's regula-tions limit an adjudicatory board's finding to the issues put into contest by the parties. SSe 10 CFR 5 2.760a. A board is not required to make, and, under the regulations cannot prop-erly make, the ultimate finding comparable to that required in a construction permit proceeding. Pacific Gas and Electric h (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983), 3.1.7. 2 Scope of Authority to Rule on Petitions and Motions ( ) Merely by having been constituted, a Licensing Board has V' authority to entertain petitions (10 CFR S 2.714(a)). To SEPTEMBER 1988 HEARINGS 13
L !- 1 9 3.1.2.2 grant a petition, however, the Licensing Board must have been given the requisite authority specifically, either under Commission regulations or through one of the five notices or orders issued in relation to the proceeding in question. A 10 CFR Part 70 materials license is an " order" which under 10 CFR 9 2.717(b) may be " modified" by a Licensing Board delegated authority to consider a 10 CFR Part 50 operating i license. Cincinnati Gas and Electric-Company (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228 (1979). Licensing Boards lack authority to consider a motion for an Order to Show Cause pursuant to 10 CFR ss 2.202 and 2.206. I Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), LBP-80-15,11 NRC 765, 767 (1980). l Licensing Boards also lack authority to consider claims for damages. Puerto Rico Electric Power Authorit_y (North Coast Nuclear Plant, Unit 1), LBP-80-15,11 NRC 765, 767 (1980). Jurisdiction to rule on a motion to reopen filed after an appeal has been taken, rests with the Appeal Board rather I than the Licensing Board. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-699,16 NRC l 1324, 1327 (1982). In NRC proceedings in which a hearing is not mandatory but depends on the filing of a successful intervention petition, an " intervention" Licensing Board has authority only to pass upon intervention petitions. If a petition is granted, thus giving rise to a full hearing, a second Licensing Board, which I may or may not be composed of the same members as the first i Board, is established to conduct the hearing. Wisconsin Electric Power Comoany (Point Beach Nuclear Plant, Units 1
& 2), LBP-78-23, 8 NRC 71, 73 (1978); Commonwealth Edison Co.
(Byron Station, Units 1 and 2), LBP-81-30-A, 14 NRC 364, 366 (1981). Thus, an " intervention" hearing board established solely for the purpose of passing on petitions to intervene does not have the additional aut!arity to proceed beyond that assignment and to entertain filings going to the merits of matters in controversy between the petitioners and the applicant. Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175, 1177-78 (1977). An
" intervention" board cannot, for example, rule on motions for summary disposition. Stanislaus, 5 NRC at 1177-1178.
A Licensing Board may entertain a request for declaratory relief. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station), ALAB-321, 3 NRC 293, 298 (1976), aff'd, CLI-77-1, 5 NRC 1 (1977). This power stems from the fact that the Ccmmission itself may grant declaratory relief under the APA, 5 U.S.C. 6 554(e), and delegate that power to presiding officers. 5 U.S.C. o 556(c)(9). Kansas Gas & Electric Co. SEPTEMBER 1988 HEARINGS 14
i i I h (Wolf Creek huclear Generating Station), CLI-77-1, 5 NRC 1 (1977). In this vein, Licensing Boards have the authority to l issue declaratory orders to terminate a controversy or remove , uncertainty. Washinaton Public Power Supply System (WPPSS ; Nuclear Projects 3 & 5), LBP-71-15, 5 NRC 643 (1977). < A Licensing Board established for an operating license pro- 3 ceeding has authority to consider materials license questions j where matters regarding a materials license bear on issues in i the operating license application. Cincinnat] 95 and i Electric Co. (William H. Zimmer Nuclear Station), LBP-79-24, 10 NRC 226, 228-(1979). ; If a' Licensing Board determines that a participation agreement
- prohibiting the flow of electricity in interstate commerce is ;
! inconsistent with the antitrust laws, the Board may impose license conditions despite a Federal court injunction prohibiting participant from violating the agreement. Houston a Liahtina and Power Co..(South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 577 (1979). The power to grant an exemption from the regulations has not been delegated to Licensing Boards and such Boards, therefore, i .m lack the authority to grant exemptions. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & l I lO) 3), LBP-77-35, 5 NRC 1290, 1291 (1977). 3.1.2.3 Authority of Licensing Board to Raise Sua Soonle Issues i A Licensing Board has the power to raise sua soonte any significant environmental or safety issue in operating license hearings, although this power should be used sparingly ! in OL cases. 10 CFR 9 2.760a; Consolidated Edison Co. of N.Y.. Inc. (Indian Point Nuclear Plant, Units 1, 2 & 3), l ALAB-319, 3 NRC 188, 190 (1976); Houston Liahtina and Power CL. (South Texas Project, Units 1 and 2), LBP-85-8, 21 NRC 516, 519 (1985). The Board's independent responsibilities under NEPA may require it to raise environmental issues not raised by a party. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units lA, 2A,18 & 28), ALAB-380, 5 NRC 572 (1977). The Board has the prerogative, under the regulations, to consider raising serious issues sua soonte and the responsi-bility of reviewing materials filed before it to determine whether the parties have brought such an issue before. This is particularly necessary when an issue is excluded from the proceeding because it has not been properly raised rather thi.n because it has been rejected on its merits. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 f') (
%./
and 2), LBP-82-79, 16 NRC 1116, 1119 (1982). l SEPTEMBER 1988 HEARINGS 15
I 9 3.1.2.3 Pursuant to 10 CFR 9 2.760a and the Commission's Memorandum dated June 30, 1981, a Licensing Board may raise a safety issue sua soonte when sufficient evidence of a serious safety matter has been presented that would prompt reasonable minds to. inquire further. Very specific findings are not required since they could cause prejudgment problems. The Board need only give its reasons for raising the problem. Southern California Edison Co. (San Onofre Nuclear Generating Station,. Units 2 and 3), LBP-81-36, 14 NRC 691, 697 (1981). The regulations limiting the Board's authority to raise iga soonte issues restrict its right to consider safety, environ-n: ental or defense matters not raised by parties but do not restrict its responsibility to oversee the fairness and efficiency of proceedings and to raise important procedural questions on its own motion. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-24A,15 NRC 661, 664 (1982). Becaute Boards may raise important safety and environmental . issues sua soonte, they should review even untimely conten-tions to determine that they do not raise important issues that should be considered sua soonte. Consumers Power Co. (Big Rock Point Plant), LBP-82-19B,15 NRC 627, 631-32 (1982). A Licensing Board's inherent power to shape the course of a l proceeding should not be confused with its limited authority under 10 CFR 9 2.760a to shape the issues of the proceeding. The latter is not a substitute for or a means to accomplish the former. Sua soonte authority is not a case management tool. Accordingly, the apparent need to expedite a procedure or monitor the Staff's progress in identifying and/or evaluat-ing potential safety or environmental issues are not factors that authorize a Board to exercise its sua sponte authority. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1113 (1981). l The incompleteness of Staff review of an issue is not in it- , self sufficient to satisfy the standard for sua soonte review. l Houston Liahtina_and Power Co. (South Texas Project, Units 1 I and 2), LBP-85-8, 21 NRC 516, 519 (1985), citina, Comanche Eggh, supra, 14 NRC at 1114. However, a Board may take into ! account the pendency and likely efficacy of NRC Staff non-adjudicatory review in determining whether or not to invoke its sua soonte review authority. South Texas, supra, 21 NRC at 519-523, citina, Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-20, 16 NRC 109 (1982), reconsideration denied, CLI-83-4, 17 NRC 75 (1983), and Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-75, 18 NRC 1254 (1983). A Board decision to review a proposal concerning the withholding of a portion of the record from the public - SEPTEMBER 1988 HEARINGS 16
I 9 3.1.2.3 < s
', / is an appropriate exercise of Board authority and is not j
subject to the sua soonte limitation on Board authority. Ri.L-f consin Electric Power Co. (Point Beach Nuclear Plant, Units 1 ' and 2), LBP-82-5A, 15 NRC 216 (1982) and LBP-82-12, 15 NRC 354 (1982). Because exercise of this authority does not give rise to a sua soonte issue, notification of the Commission is not required. The Board's authority to consider substantive issues is limited by the sua soonte rule, but the same limitation does not apply to its consideration of procedural matters, such as confidentiality issues arising under 10 CFR 9 2.790. While it would not always be appropriate for the Board to take up pro-prietary matters on its own, where the Board finds the Staff's review unsatisfactory, sua soonte review of those matters may be necessary. Wisconsin Electric Power Co. (Point Beach Nu-l clear Plant, Units 1 and 2), LBP-82-6,15 NRC 281, 288 (1982). A Board may raise a procedural question, such as whether a portion of its record should be treated as proprietary or re-leased to the public, regardless of whether the full scope of the question has been raised by a party. P_gint Beach, suora. Information that will help the Board decide whether to raise a sua soonte issue should be made available to the Board.
,, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-9, 15 NRC 339, 340 (1982).
l lL J) l Board inquiries related to admitted contentions do not create ! sua sponte matters requiring notification of the Commission. } That the Board gives advance notification to a party that related questions may be asked does not convert those ques-tions into sua soonte issues requiring notification of the Commission. Nor is notification required when a Board has already completed action on a procedural matter and no further obligation has been imposed on a party. The sua soonte rule is intended to preclude major, substantive inquiries not related to subject matter already before the Board, not minor, procedural matters. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-12,15 NRC 354, 356 (1982). NRC regulations give an adjudicatory board the discretion to raise on its own motion any serious safety or environ-mental matter. See 10 CFR 99 2.760a, 2.785(b)(2). This discretionary authority necessarily places on the board the burden of scrutinizing the record of an operating license proceeding to satisfy itself that no such matters exist. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728,17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). _S_qg r Northern States Power Co. (Monticello Nuclear Generating (mv) Plant, Unit 1), ALAB-611, 12 NRC 301, 309 (1980). An adjudicatory board's decision to exercise its sua sconte SEPTEMBER 1988 HEARINGS 17
f i 6 3.1.2.4 authority must be based on evidence contained in the record. A board may not engage in discovery in an attempt to obtain information upon which to establish the existence of a serious safety or environmental issue. Louisiana Power and liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 7 (1986). A Licensing Board may, under 10 CFR S 2.760a, raise and decide, sua soonte, a serious safety, environmental, or common defense and security matter, should it determine such a serious issue exists. The limitations imposed by regulation on a Board's review of a matter not in contest-(and therefore not subject to the more intense scrutiny afforded by the adversarial process) do not override a Board's authority-to ; invoke 10 CFR s 2.760a. .The Commission may, however, on a 'j case-by-case basis relieve the Boards of any obligation to ) pursue uncontested issues. Louisiana Power and Licht Co. ! (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC j 1076, 1112 and n.58 (1983), citina, Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245, 248 n.7 (1978). 3.1.2.4 Expedited Proceedings; Timing of Rulings j Licensing Boards have broad discretion regarding the appro- l priate time for ruling on petitions and motions filed with them. Absent clear prejudice to the petitioner from a Licensing Board's deferral of a decision on a pending motion, an Appeal Board is constrained from taking any action since the standard of review of a Licensing Board's deferral of action is whether such deferral is a clear abuse of discre-tion. Detroit Edison Comoany (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426 (1977). A Licensing Board has authority under 10 CFR s 2.711(a) to extend or lessen the times provided in the Rules for taking any action. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574,11 NRC 7,13 (1980). As a general matter, when expedition is necessary, the Commission's Rules of Practice are sufficiently flexible to permit it by ordering such steps as shortening, even drastically in some circumstances, the various time limits for the party's filings and limiting the time for, and type of, discovery. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1263 (1982),citina, 10 CFR S 2.711; Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452 (1981); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 251 (1986). Procedures for expediting a proceeding, however, should not depart substantially from those set forth in the SEPTEMBER 1988 HEARINGS 18
7~ S 3.1.2.4 k) Rules of Practice, and steps to expedite a case are appropriate only upon a party's good cause-showing that expedition is essential. Point Beach, supra, 16 NRC at 1263, citina, 10 CFR $ 2.711. Under extraordinary circumstances, it is appropriate for the Licensing Board to address questions to en applicant even before formal action has been completed concerning admission of an intervenor into a licenso amendment proceeding. These questions need not be considered sua sponte issues requiring notification of the Commission. The Board may also authorize a variety of special filings in order to expedite a proceeding and may even grant petitioners the right to utilize discovery even before they are admitted as parties. However, special sensitivity must be shown to intervenor's procedural rights when the cause for haste in a proceeding was a voluntary decision by the applicant concerning both the timing and content of its request for a license amendment. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-39, 14 NRC 819, 821, 824 (1981); LBP-81-55, 14 NRC 1017 (1981). Under exceptional circumstances, Board questions may precede discovery by the parties. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-44,14 NRC 850, (q)v 851 (1981). When time pressures cause special difficulties for inter-venors, discovery against interveners may be restricted in order to prevent interference with their preparation for a hearing. A presiding officer has discretionary power to authorize specially tailored proceedings in the interest of expedition. Wiscorsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-46,14 NRC 862, 863 (1981). When quick action is required on a license amendment, it is appropriate to interpret petitioner's safety concerns broadly and to admit a single broad contention that will permit wide-ranging discovery within the limited time without the need to decide repeated motions fcr late filing of new contentions. But the contentions must still relate to the license amendment which is requested. Petiticner may not challenge the safety of activities already permitted under the license. Wisconsi_n Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-45, 14 NRC 853, 860 (1981). Though the Board may admit a single broad contention in the interest of expedition, its liberal policy towards admissions may be rescinded when the time pressure justi-fying it is relieved. However, issues already raised (Q"/ under the liberal policy are not retroactively affected by its rescission. .W isconsin Electric Power Co. (Point SEPTEMBER 1988 HEARINGS 19
9 3.1.2.5 Beach Nuclear Plant, Units 1 and 2), LBP-82-19A,15 NRC 623, 625 (1982). ; In Consolidated Edison Co. of N.Y. (Indian Point, Unit No. 2); Power Authority of the State of New York (Indian Point, Unit No. 3), LBP-82-12A, 15 NRC 515 (1982), the intervention i petitioner filed a motion requesting permission to observe the i emergency planning exercise scheduled tu be held two days { later for the Indian Point Facility. The Licensing Board l ruled that, although 10 CFR 9 2.741 directs that L party first seek discovery of this sort from another party and that only after a 30-day opportunity to respond can the party apply to I the Board for relief, in this case, strict adherence to the l rule would not be required. Where, as here, the exigencies of 1 the case do not permit a 30-day response period, procedural I delicacy will not be allowed to frustrate the purpose of the I hearing -- especially where no party is seriously disadvant- I aged by expediting the action. Indian Point, 15 NRC at 518. Furi.hermore where the issue of adequacy of emergency planning was clearly an issue to be fully investigated and the i observations of the potential interveners the next day would be useful to the Board in its deliberations, the Board would deny licensee's request for stay and certification to the Commission, since to grant these motions would render the issue moot. Consolidated Edison Co. of N.Y. (Indian Point, ; Unit No. 2); Prwer Authority of the State of N.Y. (Indian Point, Unit No. 3), LBP-82-12B, 15 NRC 523, 525 (1982). i 3.1.2.5 Licensing Board's Relationship with the NRC Staff ! A Licensing Board may not delegate its obligation to decide issues in controversy to the Staff. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), , ALAB-298, 2 NRC 730, 737 (1975); Commonwealth Edison Co. l (Byron Nuclear Power Station, Units 1 and 2), LBP-84-2, 19 NRC 36, 210 (1984), (rev'd on other arounds, ALAB-793, 20 NRC 4 1591, 1627 (1984]), citina, Perry, supra, 2 NRC at 737. The rule against delegation applies even to issues a Licensing Board raises on its own motion in an operating license proceeding. Byron, lu.ps,19 NRC at 211, citina, . Consolidated Edison Co. of New York (Indian Point Nuclear Generating Unit 3), CLI-74-28, 8 AEC 7, 8-9 (1974). The rule against delsga-tion applies, in particular, to quality assurance issues. Byron, inpn,19 NRC at 212, citina, Vermont Yankee Nuclear Power Coro_._ (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358 (1973). However, where there is nothing remaining to be adjudict.ted on a quality assurance issue, the adequacy of a 100 percent reinspection of a contractor's work may be delegated to the Staff to consider post-hearing. Byron, supra, 19 NRC at 216-17. j MARCH 1987 HEARINGS 20
) 9 3.1.2.5 On the other hand, with respect to emergency planning, the Licensing Board will accept predictive findings and post-hearing verification by Statf of the formulation and implemen-tation of aspects of emergency plans. Byron, suora, 19 NRC at 212, 251-52, citina, Louisiana Power and Liaht Co. (Waterford Steam Electric Station, UnM 3), ALAB-732,17 NRC 1076, 1103-04 (1983).
In a construction permit proceeding, the Licensing Board has a duty to assure that the NRC Staff's review was adequate ever as to matters which are uncontested. Gulf States Utilities [_q.,. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 774 (1977). In this vein, a more recent case reiterating the rule that a Licensing Board may not delegate its obligation to decide significant issues to the NRC Staff is Publit_ Service Co. of Indiana. Inc. '(Marble Hill Nuclear Generating' Station, Units 1 and 2), ALAB-461, 7 NRC 313, 318 (1978). A Licensing Board does not have the power, under 10 CFR 9 2.718 or any other regulation, to direct the Staff in the perfomance of its independent responsibilities. New Enaland Power Co. (NEP, Units 1 & 2), LBP-78-9, 7 NRC 271, 279-80 (1978); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1263 (1984), rev'd in [^) ( part on other arounds, CLI-85-2, 21 NRC 282 (1985). Whether a Board may modify an order or action of the Staff depends on the relationship of the order to the subject matter of a pending proceeding. If closely related, a Staff order i may not be issued, or is subject to a stay until resolution of the contested issue. If far removed from the subject matter of a pending proceeding: a Staff order should not be con-sidered by the Board. Finally, there are matters which are properly the subject of independent Staff action, but which bear enough relationship tc the subject matter of a pending proceeding that review by the Licensing Board is also appropriate. Nuclear Fuel Services Inc. and N.Y. State Enerav Research and Development Authority (Western New York Nuclear Service Center), LBP-82-36, 15 NRC 1075, 1082 (1982), citina, Cincinnati Gas and Electric Co. (William H. Zimmer Nuc14ar Station), LBP-79-24, 10 NRC 226, 229-230 (1979). Iss9s relating to NRC Staff compliance with and imple-mentation of a Licensing Board order, rather than the order itself, should be presented to the Licensing Board in the first instance, rather than to the Appeal Board. Consumers I Power Co. (Midland Plant, Units 1 and 2), ALAB-684, 16 NRC 162, 165 (1982). O U MARCH 1987 HEARINGS 21
9 3.1.2.5 The docketing and review activities of the Staff are not under the supervision of the Licensing Board. Only in the most unusual circumstances should a Licensing Board interfere in the review activities of the Staff. Philadelphia Electric Comoany (Fulton Generating Station, Units 1 and 2), LBP-79-23, 10 NRC 220, 223-24 (1979). The Staff produces, among other documents, the Safety [ Evaluation Report (SER) and the Draft and Final Environmental : Statements (DES and FES). The studies and analyses which result in these reports are made independently by the Staff, and Licensing Boards have no rule or authority in their preparation. The Board does not have any supervisory authority over that part of the application review process that has been entrusted to the Staff. Arrizona Public Service A (Palo Verde Nuclear Generating Station, Units 2 and 3), i LBP-83-36, 18 NRC 45, 48-49 (1983), citina, New Enoland Power ! A (NEP Units 1 and 2), LBP-78-9, 7 NRC 271 (1978). See Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 206-07 (1978), l The decision whether to approve a plan for construction i during the period in which certain design engineering and construction management, and possibly construction respon-sibilities, are being transferred from one contractor to another is initially within the province of the NRC Staff. But because of the safety significance of the work to be performed, and its clear bearing on whether, or on what terms, a project should be licensed, and on the resolution of certain existing contentions, consideration of the adequacy of, and controls to be exercised by, the Applicants and NRC Staff over such work falls well within the jurisdiction of the Licensing Board. Houston Liahtino and Power Co. (South Texas Project, 1 Units 1 and 2), LBP-81-54, 14 NRC 918, 919-20 (1981). Adjudicatory boards do not possess the authority to direct the holding of hearings following the issuance of a construction permit, nor have boards been delegated the authority to direct . the Staff in the performance of its administrative functions. { Adjudicatory boards concerned about the conduct of the Staff's i functions should bring the matter to the Commission's attention or certify the matter to the Commission. As part of its inherent supervisory authority, the Commission has the authority to direct the Staff's performance of administrative functions, even over matters in adjudication. Carolina Power and Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, i 3 and 4), CLI-80-12, 11 NRC 514, 516-17 (1980). Ordinarily, l Licensing Boards should not decide whether a given action i significantly affects the environment without the record I support provided by the Staff's environmental review. I Consumers Power Co. (Big Rock Point Nuclear Pbnt), ALAB-636, )
.13 NRC 312, 330 (1981).
MARCH 1987 HEARINGS 22 1
p
- h. 'l 3.1.2.5 k} 'Where the' Licensing Board finds that the' Staff cannot de-monstrate a reasonable cause for its delay in. submitting environmental statements, the Board may. issue a. ruling noting
- the unjustified failure to meet a publication schedule and then proceed to hear other matters or' suspend proceedings until the. Staff. files the necessary documents. The Board, sut soonte or on motion of one of the parties, may refer the ruling to the Appeal Board, If, the Appeal _ Board affirms, it would. certify the matter to the Commission. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 207 (1978).
A Licensing Board should not call upon independent consultants - to supplement an adjudicatory record except in that most
. extraordinary situation in which.it is demonstrated that the
. Board cannot otherwise reach an informed decision on the issue involved. Part 2 of 10 CFR and. Appendix A bothigive the Staff a dominant role in assessing the radiological health and , I safety aspects of facilities involved in licensing. proceed- ! I ings. .Before an adjudicatory board resorts to outside experts of their own, they should give the NRC Staff every opportunity to explain, correct and supplement its testimony. Equ_th Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC'1140, 1146, 1156 (1981), (~N review declined, CLI-82-10, 15 NRC 1377 (1982). Applying the criteria of Summer, supra, 14 NRC at 1156, 1163, . a Licensing Board determined that it had the authority to call i an expert witness to focus on matters the Staff had apparently ignored in a motion for summary disposition of a healtn effects contention. Carolina Power & Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant, Units 1 and 2), LBP-84-7, 19 NRC 432, 442-43 (1984), reconsid. on other arcunds, LBP-84-15, 19 NRC 837, 838 (1984). After an order authorizing the issuance of a constructil.n permit has become final agency action, and prior to the commencement of any adjudicatory proceeding on any oper- r ating license application, the exclusive regulatory power with regard to the facility lies with the Staff. Houston Liahtina & Power Co. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582 (1977). Under such circum-stances, an adjudicatory board has no authority with regard to the facility or the Staff's regulation of it. In the ,same vein, after a full-term, full power operating license has been issued and the order authorizing it has become final agency action, no further jurisdiction over the license lies with any adjudicatory board. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977); Duauesne Licht Co. (Beaver [ Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 s (1977); Detroit Edison Co. (Enrico Fermi Atomic Power MARCH 1987 HEARINGS 23
9 3.1.2.6 Plant, Unit 2), LBP-78-11, 7 NRC 381, 386, aff'd, ALAB-470, 7 NRC 473 (1978). For a Licensing Board to accept unsupported NRC Staff statements would be to abrogate its ultimate responsibility and would be substituting the Staff's judgment for its own. On ultimate issues of fact, the Board must see the evidence from which to reach its own independent conclusions. [hy_ eland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-114, 16 NRC 1909, 1916 (1982). -7 Should a Staff review demonstrate the need for corrective action, the decision on the adequacy of such a corrective l action is one that the Licensing Board may not delegate. Case law suggests that even in cases where a Board resolves an issue in an applicant's favor leaving the Staff to perform what is believed to be a confirmatory review, the Staff should inform the Board should it discover that corrective action is warranted. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 520 n.21 (1983). 3.1.2.6 Licensing Board's Relationship with Other Agencies The requirements of State law are for State bodies to de- l termine, and are beyond the jurisdiction of NRC adjudicatory i bodies. Northern States Power Company (Tyrone Energy Park, J Unit 1), ALAB-464, 7 NRC 372, 375 (1978), citina, ClevelalLd Electric Illuminating Co. (Perry Nuclear Plant, Units 1 & 2), 1 ALAB-443, 6 NRC 741, 748 (1977). In this case, the Wisconsin l Public Service Commission decided that some of the applicants were " foreign corporations" and could not construct the Tyrone facility. Although the Appeal Board would not question ! the State's ruling, it remanded the case to reconsider l financial and technical qualifications in light of the changes in legal relationships of the co-applicants that resulted from the State determination. See also Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, El NRC 644, 899 (1985). In the absence of a controlling contrary judicial precedent, the Commission will defer to a State Attorney General's interpretation of State law concerning the designation of representatives of a State participating in an NRC proceeding as an interested State. Egh]ic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144, 148 (1987). A Licensing Board does not have jurisdiction in a construc-tion permit proceeding under the Atomic Energy Act to rs-view thc decision of the Rural Electrification Administra-tion to guarantee a construction loan to a part owner of the facility being reviewed. Public Service Co. of Indiana JUNE 1987 HEARINGS 24
p e m e n U~ 1..... .
.. N'~7
.(Marble Hill Nuclear Generating Station, Units:1 &~2), ALAB-
~493, 8 NRC.253, 267-68 (1978).
It would be improper for a Licensing Board to entertain a-collateral attack upon any action or inaction of sister Federal agencies:on a matter over which the Comission is totally devoid of any jurisdiction. Arizona Public Service
.CL. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-82-117A, 16 NRC 1964, 1991 (1982). ,Thus, a-Licensing '
Board refused to review whether FEMA complied with its own. ,. D . agency. regulations in performing its emergency planning responsibilities. Philadelphia Electric Co. (Limerick - Generating Station, Units 1 and 2),-ALAB-836, 23 NRC 479, 499-(1986). As an independent regulatory agency, the Comission does not consider itself legally bound by substantive regulations of the Council on Environmental Quality. . Vermont Yankee Nuclear Power Coro. (Vormont Yankee Nuclear Power Station),.ALAB-876,- 26 NRC 277, 284 n.5 (1987); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-880, 26 NRC 449, 461 (1987). Although the Comission will take cognizance of' activities before other legal tribunals when the facts so warrant, it s\ [V should not delay its licensing proceedings or withhold a license merely because some other legal tribunal might con-ceiv bly take future action which may later. impact upon the operation of a nuclear facility. Palo Verde, supra, 16 NRC at 1991, citino, Eyblic Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-78-14, 7 NRC 952, 958 n.5 (1978); Wisconsin Electric Power Co. (Koshkonong Nuclear Plant, Units 1 and 2), CLI-74-45, 8 AEC 928, 930 (1974); Southern Califor-nia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-171, 7 AEC 37, 39 (1974); and Cleveland Electric 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 748 (1977); Lona Island Liahtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644,900(1985); Kerr-McGee Chemical Coro. (West Chicago Rare Earths Facility), LBP-85-46, 22 NRC 830, 832 & n.9 (1985), citina, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 884-85 (1984); Kerr-McGee Chemical Coro. (Kress Creek Decontamination), LBP-85-48, 22 NRC 843, 847 (1985). 3.1.2.7 Conduct of Hearing by Licensing Board I The Atomic Energy Act does not itself specify the nature of the hearings required to be held pursuant to Section 189(a), 42 U.S.C. 6 2239; its reference to a hearing neither
)
distinguishes between rulemaking and adjudication nor states explicitly whether either must be conducted through formal on-the-record proceedings. However, the Comission MARCH 1988 HEARINGS 25 s_L_____-_____-__.______
i 9 3.1.2.7-has~ invariably distinguished between the two, and has provided formal hearings in licensing cases, as contrasted with informal hearings in rulemaking proceedings confined to written submissions and non-record interviews. una Island Liahtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-107, 16 NRC 1667, 1673-74 (1982), citina, Sieael v. Atomic Enerav Commission, 400 F.2d 778,-785 (D.C. Cir. 1968); Citizens For a Safe Environment v. Atomic Encray Commission, 489 F.2d 1018, 1021 (3rd Cir. 1974). The presiding officer has the duty tc conduct a fair and impartial hearing, to maintain order and to take appropriate action to avoid delay. Specific powers of the presiding officer are set forth in 10 CFR 6 2.718. While the Licensing Board has broad dtscretion as to the manner in which a hearing is conducted, any actions pursuant to that discretion must be supported by a record that indicates that such action was based on a consideration of discretionary factors. lennessee e Valley Authority (Hartsville Nuclear Plant, Urtits IA, 2A,1B and 2B), ALAB-463, 7 NRC 341, 356 (1978). A Licensing Board has considerable flexibility in regulating the course of a hearing and designating the order of proce-dure. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),-ALAB-819, 22 NRC 681, 727 (1985), citina, 10 ; CFR 59 2.718(e), 2.731. See Metropolitan Edison Co. (Three Mile Island Nucle.ar Station, Unit 1), ALAB-772,19 NRC 1193, 1245-46 (1984), rev'd in oart on other arounds, CLI-85-2, 21 , NRC 282 (1985). Although the Commission's Rules of Practice set forth a general schedule for the filing of proposed findings, a Licensing Board is authorized to alter that schedule or to dispense with it entirely. Limerick, supra, 22 NRC at 727, citina, 10 CFR 6 2.754(a). Pursuant to 10 CFR s 2.718, the Licensing Board has the duty to conduct a fair and impartial hearing under the law, which includes the responsibility to impose upon all parties to a proceeding the obligation to disclose all potential conflicts of interest. Fundamental fairness clearly requires disclosure of potential conflicts so as to enable the Board to determine the materiality of such information. Lona Island Liahtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-73,16 NRC 974, 979 (1982). . A Board may refer a potential conflict of interest matter to the NRC General Counsel, who is responsible for interpreting the NRC's conflict of interest rules. 10 CFR s 0.735-27. t Once the matter has been handled in accordance with NRC internal procedures, a Board will not review independently either the General Counsel's determination on the matter or the judgment on whether any punitive measures are required. Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 583-584 (1985). , MARCH 1988 HEARINGS 26
7 9 3.1.2.7 (j While a Licensing Board should endeavor to conduct a licensing proceeding-in a manner that takes account of special circum-stances faced by any participant, the fact that a party may possess fewer resources than others to devote to the. proceed-ing does not relieve that party of its hearing obligations. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1261 n.29 (1982), citina, Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 450, 454 (1981); Philadelphia Electric Co. (Limerick Gen-erating Station, Units ) and 2), ALA3-819, 22 NRC 681, 730 0985); General Public Vtilities Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 558 (1986). The procedures set forth in the Rules of Practice are the only ones that should be used (absent explicit Commission instructions in a particular case) in any licensing proceed-ing. Point Beach, supra, 16 NRC at 1263, citina, 10 CFR s 2.718; 10 CFR Part 2, Appendix A. A Board must use its powers to assure that the hearing is focused upon the matters in controversy and that the hearing process is conducted n expeditiously as possible, consistent with the development of an adequate decisional record. Long n Island liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1152 (1984), citina, 10 CFR Part 2, ( ) v' Appendix A, 6 V. A Board may limit cross-examination, redirect a party's presentation of its case, restrict the introduction of reports and other material into evidence, and require the submitttl of all or part of the evidence in written form as long as the parties are not thereby pre-judiced. Shoreham, supra, 20 NRC at 1151-1154, 1178. The scope of cross-examination and the parties that may engage in it in particular circumstances are matters of Licensing Board discretion. Public Service Co. of Indiana. Innn (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 (1978). A Commission-ordered discretionary proceeding before a Licensing Board held to resolve issues designated by the Commission, although adjudicatory in form, was not an "on-the-record" proceeding within the meaning of the Atomic Energy Act. Therefore, in admitting and formulating contentions and subissues and determining order of presentation, the Board would not be bound by 10 CFR Part 2. As to all other matters, 10 CFR Part 2 would control. Consolidated Edison Co. of N.Y. (Indian Point, Unit 2), Power Authority of the State of N.Y. l (Indian Point, Unit 3), CLI-81-1, 13 NRC 1, 5 n.4 (1981), , clarified, CL1-81-23, 14 NRC 610, 611 (1981). l n In order that a proper record is compiled on all matters (#) in controversy, as well as sua sponte issues raised by it, 1 SEPTEMBER 1988 HEARINGS 27 ,
i b 3.1.2.7 a hearing board has the right and responsibility to take an active role in the examination of witnesses. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear . Station, Unit 1). ALAB-642, 13 NRC 881, 893 (1981); Cleveland 1 Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 498-499 (1985). Although a Board may exercise broad discretion in determining the extent af its direct participation in the hearing, the Board should avoid excessive involvement which could prejudice any of the parties. Perry, supra, 21 NRC at 499. This does not mean that a Licensing Board should remain mute during a hearing and ignore deficiencies in the testimony. A Board must satisfy itself that the conclusions expressed by expert witnesses on significant safety or environmental questions have a solid foundation. Philadelphia Electric C2,. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 741 (1985), citina, South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663,14 NRC 1140,1156 (1981), review declined, CLI-82-10, 15 NRC 1377 (1982). The Commission has issued a Statement of Policy on the Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452 (1981), which provides guidance to Licensing Boards on the timely completion of proceedings while ensuring a full and fair record. Specific areas addressed include: scheduling of proceedings; consolidation of interveners; negotiations by parties; discovery; settlement conferences; timely rulings; summary disposition; devices to expedite party presentations, such as pre-filed testimony outlines; round-table expert witness testimony; filing of proposed findings of fact and conclusions of law; and scheduling to allow prompt issuance of an initial decision in cases where construction has been completed. The Commission also outlined examples of sanctions a Licensing Board may impose on a participant in a proceeding who fails to meet its obligations. A Board can warn the offending party that its conduct will not be tolerated in the future, refuse to consider a filing by that party, deny the right to cross-examine or present evidence, dismiss one or more of its contentions, impose sanctions on its counsel, or in severe cases dismiss the party from the proceeding. In selecting a sanction, a Board should consider the relative importance of the unmet obligation, potential for harm to other parties or the orderly course of the proceedings, whether the occurrence is part of a pattern of behavior, the importance of any safety or environmental concerns raised by the party, and all of the circumstances (13 NRC 452 at 454). See Lona Island Liahtina [L. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115,16 NRC 1923, 1928 (1982), citina, Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8,13 NRC 452, 454 (1981). SEPTEMBER 1988 HEARINGS 28
l } l i I i , ) 9 3.1.3 1 Consistency with the Commission's S atement of Policy on Conduct of Licensina Proceedings requires that in general delay be avoided, and specifically that a Board obtain Commission guidance when it becomes apparent that such guidance will be necessary. Lona Island Liohtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-21, 17 NRC 593, 604 (1983). Pursuant to 10 CFR 9 2.718, Boards may issue a wide variety of i procedural orders that are neither expressly tuthorized nor prohibited by the rules. They may permit interveners to contend that allegedly proprietary submissions should be released to the public. They mey also authorize discovery or an evidentiary hearing that is not relevant to the contentions but is relevant to an important pending procedural issue, such as the trustworthiness of a party to receive allegedly proprietary material. However, discovery and hearings not related to contentions are of limited availability. They may ) be granted, on motion, if it can be shown that the procedure sought would serve a sufficiently important purpose to justify the associated delay and cost. Wisconsin Electric Power Co. (Doint Beach Nuclear Plant, Units 1 and 2), LBP-82-2,15 NRC 48, 53 (1982). A The Commission has inherent supervisory power over the conduct (V) of adjudicatory proceedings, including the authority to provide guidance on the admissibility'; . contentions before Licensing Boards. Consolidated Edi!L Co. of New York (Indian Point, Unit 2); Power Authority of the State of New York , (Indian Point, Unit 3), CLI-82-15, 16 NRC 27, 34 (1982), ' citina, Public Service Co. of New Hamoshire (Seabrook Stationy Units 1 and 2), CLI-77-6, 5 NRC 503, 516-517 (1977). 3.1.3 Quorum Requirements for Licensing Board Hearing In Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-222, 8 AEC 229 (1974), the Appeal Board attempted to establish ' elaborate rules to be followed before a Licensing Board may sit with a quorum only, despite the fact that 10 CFR S 1 2.721(d) requires only a chairman and one technical member to be present. The Appeal Board's ruling in ALAB-222 was reviewed by the Commission in CLI-74-35, 8 AEC 374 (1974). There, the Commission held that hearings by quorum are .' permitted according to the terms of 10 CFR s 2.721(d) and that inflexible guidelines for invoking the quorum rule are inappropriate. At the same time, the Commission indicated that quorum hearings should be avoided wherever practicable and that absence of a Licensing Board member must be explained on the record (8 AEC 374 at 376). (V) MARCH 1988 HEARINGS 29
9 3.1.4 3.1.4 Disqualification of U censing Board Member i 1 3.1.4.1 Motion to Disquai t Adjudicatory Board Member 1 1 The rules governing motions for disqualification or recusal are generally the same for the administrative judiciary as for the judicial branch itself, and the Commission has' followed that practice. Suffolk County and State of New York Motion ; for Disqualification of Chief Administrative Judae Cottar i ' (Shoreham Nuclear Power Station, Unit 1), LBP-84-29A, 20 NRC 385, 386 (1984), citina, Houston Liahtina and Power Co. l (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1366:(1982). The general requirements for motions to disqualify are discussed in Duouesne Liaht Co. (Beaver Valley Power Station, i Units 1 & 2), ALAB-172, 7 AEC 42 (1974). Based on that ; discussion and or cases dealing with related matters: (1) all disqualification motions must be timely filed. Commonwealth Edison Co. (LaSalle County Nuclear Power l Station, Units 1 & 2), CLI-73-8, 6 AEC 169 (1973); l Consumers Power 2C0 (Midland Plant, Units 1 & 2), ALAB- i 101, 6 AEC 60 (1973). In particular, any question of bias I of a Licensing Board member must be raised at the earliest possible time or it is waived. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 384-386 (1974); Rgrthern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 247 (1974); Public Service Co. of New Hampshire 1 (Seabrook Station, Units 1 and 2), ALAB-749, 18 NRC 1195, 1 1198 (1983); Public Service Co. Qf New Hampshire j (Seabrook Station, Units 1 and 2), ALAB-751, 18 NRC 1313, 1315 (1983), reconsideration denied, ALAB-757, 18 NRC j{ 1356 (1983); Lona Island liahtira Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 NRC 21, 32 (1984). j The posture of a proceeding may be considered in j evaluating the timeliness of the filing of a motion for ; disqualification. Lona Island Liahtina Co. (Shoreham l Nuclear Power Station, Unit 1), CLI-84-20, 20 NRC 1061, 1 1081-1082 (1984); Seabrook (ALAB-757), suora, 18 NRC at ! 1361. j (2) a disqualification motion must be accompanied by an l affidavit establishing the basis for the charge, even if I founded on matters of public record. Detroit Edison Co. j (Greenwood Energy Center), ALAB-225, 8 AEC 379 (1974); j Shoreham, supra, 20 NRC at 23, n.1; Philadelphia Electric ! Co. (Limerick Generating Station, Units 1 and 2), CLI-8';- j 15, 22 NRC 184, 185 n.3 (1985). j l MARCH 1988 HEARINGS 30 ! I w______________z______. - _ ]
g l f ') S 3.1.4.1 (3) a disqualification motion, as with all ather motions, must be served on all parties or their attorneys. 10 CFR' 99 2.701(b), 2.730(a). Disqualification of a Licensing Board me ser, either on his own motion or on motion of a pr.;.,, a oddressed in 10 CFR 9 2.704. Strict compliance with Section 2.704(c) is required. Houston Liahtino and Power Co m .(Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-630, 13 NRC 84,.86 (1981). A motion to disqualify a member of a Licensing Board is determined by the individual Board member rather than by the full Licensing Board. Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 21 n.26 (1984); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-748, 18 NRC 1184, 1186 n.1 (1983), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-6,11 NRC 411 (1980). In those cases where a party's motion for disqualifi-cation of a Board member is denied and the Board member does not recuse himself, Section 2.704(c) explicitly requires that the Licensing Board refer the matter to the Appeal Board or the Commission. Allens Creek, lup_ta,13 NRC at 86; Nuclear Enaineerina Co. (Sheffield, Illinois Low-Level Radioactive o Waste Disposal Site), ALAB-494, 8 NRC 299, 301 n.3 (1978); Public Service Co. of New Hampshtte (Seabrook Station, Units 1 (v) and 2), ALAB-749, 18 NRC 1195, 1198 (1983). The Appeal Board has stressed that a party moving for dis-qualification of a Licensing Board member has a manifest duty to be most particular in establisleing the foundation for its charge as well as to adhere scrupulously to the affidavit requirement of 10 CFR 9 2.704(c). Dairvland Power Cooperative (La Crosse Boiling Water Reactor), ALAB-497, 8 NRC 312, 313 (1978). See also Houston Liahtino and Power Co. (South Texas Project, Units 1 and 2), ALAB-672, 15 NRC 677, 680 (1982). Nevertheless, as to the affidavit requirement, the Appeal Board has held that the movant's failure to file a supporting I affidavit is not crucial where the motion to disqualify is founded on a fact to which the Licensing Board itself had called attention and is particularly narrow therebv obviating the need to reduce the likelihood of an irrespons.tle attack on the Board member in question through use of an 'fidavit. Nuclear Enaineerina Co.. Inc. (Sheffield, Illinoi. Low-Level Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 301 n.3 (1978). An intervenor's status as a party to a proceeding does not of itself give it standing to move for disqualification of a Licensing Board member on another group's behalf. v MARCH 1988 HEARINGS 31
$ 3.1.4.2 Puaet Sound Power and Liaht Company (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30, 32-33 (1979);
Eghlic Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-748, 18 NRC 1184, 1187 (1983). However, a party requesting disqualification may attempt to establish by reference to a Board member's overall conduct that a pervasive climate of prejudice exists in which the party cannot obtain a fair hearing. A party may also attempt to demonstrate a i pattern of bias by a Board member toward a class of partici-pants of which it is a member. Egabrook, suora, 18 NRC at 1187-1188. See also Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB>749, 18 NRC 1195, l 1199 n.12 (1983). j A challenged member of an Appeal Board must first be given an opportunity to disqualify himself, before the Commission will I act. Pacific Gas and Electric Company (Diablo Canyon Nuclear l Power Plant, Units 1 &. 2), CLI-60-9, 11 NRC 436 (1980). 3.1.4.2 Grounds for Disqualification of Adjudicatory Board Member l The aforementioned rules (3.1.4.1) with respect to motions to disqualify apply, of course, where the motion is based on the assertion that a Board member is biased. Although a Board I member or the entire Board will be disqualified if bias is shown, the mere fact that a Board issued a large number of unfavorable or even erroneous rulings with respect to a particular party is not eviaence of bias against that party. i Northern Indiana Public Service Co. (Bailly Generating l Station, Nuclear-1), ALAB-224, 8 AEC 244, 246 (1974); Metropolitan Edison Co. (Three Milo Island Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 569 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 721, 726 n.60 (1985). Rulings and findings made in the course of a proceeding are not in themselves sufficient reasons to believe that a tribunal is biased for or against a party. Pacific r,as and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 923 (1981). Licensing Boards are capable of fairly judging a matter on a full record, even where the Commission has expressed tentative views. Nuclear Enaineerina Co., Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 4-5 (1980). Standing alone, the failure of an adjudicatory tribunal l to decide questions before it with suitable promptness I scarcely allows an inference that the tribunal (or a member thereof) harbors a personal prejudice against one litigant or another. Puaet Sound Power and Liaht Company MARCH 1988 HEARINGS 32
I 1
,y 9 3.1.4.2
.C' (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556,10 NRC 30,' 34 (1979).
The disqualification of a Licensing Board member may not be obtained on the ground that he or she committed error in the course of the proceeding at bar or some earlier proceeding. Dairvland Power Cooperative (La Crosse Boiling Water Reactor), ALAB-614, 12 NRC 347, 348-49 (1980). In the absence of bias, an Appeal Board romber who partici-pated as an adjudicator in a construction permit proceeding for a facility is not required to disqualify himself from , participating as an adjudicator in the operating license pro-ceeding for the same facility. Pacific Gas and Electric Co. (Diablo tanyon Nuclear Power Plant,. Units 1 and 2), CLI-80-11, 11 NRC 511 (1980). An administrative trier of fact is subject to disqualifi- i cation if: (1) he has a direct, personal, substantial pecuniary interest ' in a result; j (2) he has a personal bias against a participant;
,m (3) he has served in a prosecutive or investigative role wh
( V) regard to the same facts as are in issue; (4) he has prejudged factual - as distinguished from legal or policy - issues; or (5) he has engaged in conduct which gives the appeararce of personal bias or prejudgment of factual issues. Nuclear Enaineerina Co., Inn (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-494, 8 NRC 299, 3C1 (1978); Lona Island Liahtina Co. (Shoreham Nuclear Power Sta-tion, Unit 1), ALAB-777, 20 NRC 21, 34 (1984), citinq, Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 20 (1984), ouotina Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-101, 6 AEC 60, 65 (1973). The fact that a member of an adjudicatory tribunal may have a crystallized point of view on questions of law or policy is not l a basis for his or her disqualification. Shoreham, suora, 20 NRC at 34, citinu, Midlan_d, supra, 6 AEC at 66. In its decision in Houston Lightjna and Power Co. (South Texas i Project, Unitt 1 and 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982), the Commission made clear that Licensino Board members O) t are governed by the same disqualification standards that apply to Federal judges. Hope Creak, supra, 19 NRC at 20. The SEPTEMBER 1988 HEARINGS 33
I s 3.1.4.2 l current ' statutory foundation for the disqualification stand-ards is found in 28 U.S.C., Sections 144 and 455. Section 144 9 , I requires a Federal judge to step aside if a party to the . ! proceeding files a timely and sufficient affidavit that the i judge before whom the matter is pending has a personal bias or l prejudice either against that party or in favor of an adverse party. Hope Creek, suora, 19 NRC at 20. Section 455(a) imposes an objective standard which is whether a reasonable i person knowing all the circumstances would be led to the 1 conclusion that the judge's impartiality might reasonably be i questioned. Hooe Creek, supra, 19 NRC at 21-22. Under 28 U.S.C. S 455(b)(2), a judge must disqualify himself , in circumstances where, inter alia, he served in private l practice as a lawyer in the " matter in controversy." In accord with 28 U.S.C. 9 455(e), disqualification in such circum- ] stances may not be waived. Hooe Creek, supra, 19 NRC at 21. In applying the disqualification standards under 28 U.S.C. ; 6 455(b)(2), the Appeal Board concluded that, in the instance of an adjudicator versed in a scientific discipline rather than in the law, disqualification is required if he previously provided technical services to one of the parties in connec-tion with the " matter in controversy." Hope Creek, suora, 19 NRC at 23. To determine whether the construction permit proceeding and the operating license proceeding for the same facility should be deemed the same " matter" for 28 U.S.C. 9 455(b)(2) purposes, the Appeal Board adopted the " wholly unrelated" test, and found the two to be sufficiently related that the Licensing Board judge should have recused himself. Hope Creek, fuora, 19 NRC at 24-25. An administrative trier of fact is subject to disquali-fication for the appearance of bias or prejudgment of the factual issues as well as for actual bias or prejudgment. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-672, 15 NRC 677, 680 (1982), rev'd on other
.arounds, CLI-82-9, 15 NRC 1363, 1364-1365 (1982); Metropolitan Edison Co e (Three Mile Island Nuclear Station, Unit 1), CLI- l 85-5, 21 NRC 566, 568 (1985).
Disqualifying bias or prejudice of a trial judge must gener-ally stem from an extra-judicial source even under the objec- i tive standard for recusal which requires a judge to disqualify ' himself in any proceeding in which his impartiality might reasonably be questioned. Preliminary assessments, made on ; the record, during the course of an adjudicatory proceeding, i based solely upon application of the decision-maker's judgment to materin, properly before him in the proceeding, do not com-pel disqualification as a matter of law. Houston Liahtina and Epwer Co. (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1364-1365 (1982), citina, United States v. Grinnell Coro., 384 U.S. 563, 583 (1966); Commonwealth Edison Co. (La i Salle County Nuclear Power Station, Units 1 and 2), CLI-73-8, SEPTEMBER 1988 HEARINGS 34
1 r ) 9 3.1.4.2 6 AEC 169, 170 (1973); In Re International Business Machines , Corporation, 618 F.2d 923, 929 (2d Cir.1980); Public Service ! Co. of New H:Imoshire (Seabrook station, Units 1 and 2), ALAB- l 748, 18 NRC 1184, 1187 (1983). See also Public Service Co. of New Hamoshire (Seabrook Station, Onits 1 and 2), ALAB-749, 18 NRC 1195, 1197 (1983); P_ublic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-751, 18 NRC 1313, 1315 (1983), reconsideration denied, ALAB-757, 18 NRC 1356 (1983); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 721 (1985). The fact that a Board member's actions are erroneous, superfluous, or inappropriate does not, without more, demonstrate an extrajudicial bias. Matters are extrajudicial j when they do not relate to a Board member's official duties in . t a case. Rulings, conduct, or remarks of a Board member in l ! . response to matters which erise in administrative proceedings are not extrajudicial. Seabrook (ALAB-749), suora, 18 NRC at 1200. See also Seabrook (ALAB-748), supra,18 NRC at 1188. A judge will not be disqualified on the basis of: occasional use of strong lamuage toward a party or in expressing views on matters arising from the proceeding; or actions which may q be controversial or may provoke strong reactions by parties in the proceeding. Metropolitan Edison Co. (Three Mile Islano (V) Nuclear Station, Unit 1), CLI-85-5, 21 NRC 566, 569 (1985); timerick, supra, 22 NRC at 721. A letter from a Board judge expressing his opinions to a judge presiding over a related criminal case did not reflect e.xtrajudicial bias since the contents of the letter were based , solely on the record developed during the NRC proceeding. The l factor to consider is the source of the information, not the forum in which it is communicated. Three Mile Island, inpn, l 21 NRC at 569-570. Such a letter does not violate Canon 3A(6) I of the Code of Judicial Conduct which prohibits a judge from i commenting publicly about a pending or impending proceeding in any court. Canon 3A(6) applies to general public comment, not the transmittal of specific information by a judge to another court. Three Mile Island, suora, 21 NRC at 571. Such a letter also does not violate Canon 2B of the Code of Judicial Conduct which prohibits a judge from lending the prestige of his office to advance the private interests of others and from voluntarily testifying as a character witness. Canon 2B seeks to prevent a judge's testimony from having an undue influence in a trial. Three Mile Island, suora, 21 NRC at 570. l Membership in a national professional organization does
/3 not perforce disqualify a person from adjudicating a k) l MARCH 1988 HEARINGS 35
(
p D 3.1.4.3 matter to which a local chapter of the organization is a party. Sheffield, suora, 8 NRC at 302. 3.1.4.3 Improperly Influencing an Adjudicatory Board Decisio~n Where a Licensing Board has been subjected to an attempt to improperly influence the content or timing of its decision, the Board is duty-bound to' call attention to that fact promptly on its own initiative. On the other hand, a Licensing Board which has not been subjected to attempts at improper influence need not investigate allegations that such attempts were contemplated or promised. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 102 (1977). , l' 3.1.5 Resignation of a Licensing Board Member i The Administrative Procedure Act requirement that the official who presides at the reception of evidence must make the j recommendation or initial decision (5 U.S.C. S 554(d)) includes an exception for the circumstance in which that official becomes " unavailable to the a0ency." When a Licensing ! Board member resigns from the Commission, he becomes "unavail-able" (10 CFR 9 2.704(d)). Public Service Comoany of New Hamashire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, ; 101 (1977). Resignation of a Board member during a proceeding ! is not, of itself, grounds for declaring a mistrial and starting the proceedings anew. .[d.,. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 j (1977) was affirmed generally and on the point cited herein in j New Enaland Coalition on Nuclear Pollution v. NRC, 582 F.2d j 87 (1st Cir. 1978). t i
" Unavailability" of a Licensing Board member is dealt with l generally in 10 CFR 5 2.704(d).
3.2 Export Licensine Hearinas 3.2.1 Scope of Export Licensing Hearings The export licensing process is an inappropriate forum to consider generic safety questions posed by nuclear power pl ants. Under the Atomic Energy Act, as amended by the Nuclear Non-Proliferation Act of 1978, the Commission, in making its export licensing determinations, will consider non-proliferation and safeguards concerns, and not foreign health and safety matters. Westinghouse Electric Coro. (Export to South Korea), CLI-80-30, 12 NRC 253, 260-61 (1980); General Electric Co. (Exports to Taiwan), CLI-81-2,13 NRC 67, 71 (1981). MARCH 1988 HEARINGS 36 1
n 9 3.3.1
- i V 3.3 Hearina Schedulina Mtigra 3.3.1 Scheduling of Hearings An ASLB may not schedule a hearing for a time when it is known that a technical member will be unavailable for more than one half of one day unless there is no reasonable alternative to such scheduling. Commonwealth Edison Co.
(Zion Station, Units 1 & 2), ALAB-222, 8 AEC 229, 238 (1974). Otherwise, an ASLB has general authority to regulate the course of a licensing proceeding and may schedule hearings on i specific issues pending related developments on other issues. j Eublic Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & ?), ALAB-371, 5 NRC 409 (1977). In deciding whether early hearings should be held on specific issues, the Board should consider: (1) the likelihood that early findings would retain their l validity; (2) the advantage to the public interest and to the litigants in having early, though possibly, inconclusive, resolu-tion of certain issues; o
; ) (3) the extent to which early hearings on certain issues V' might occasion prejudice to one or more litigants, particularly in the event that such issues were later reopened because of supervening developments. !
Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539 (1975); accord Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant j Separation Facility), ALAB-296, 2 NRC 671 (1975). As a general rule, scheduling is a matter of Licensing Board discretion which will not be interfered with absent a "truly exceptional situation". Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-295, 2 NRC 668 (1975); Public Service Co. of New Hamnshire (Seabrook Station, Units 1
& 2), ALAB-293, 2 NRC 660 (1975).
Where the Licensing Board finds that the Staff cannot j demonstrate a reasonable cause for its delay in submitting environmental statements, the Board may issue a ruling noting the unjustified failure to meet a publication schedule and then proceed to hear other matters or suspend proceedings until the Staff files the necessary documents. The Board, sua soonte or on motion of one of the parties, may refer the ruling to the Appeal Board. If the Appeal Board affirms, it would certify the matter to the Commission. Offshore Power (~' -)s ( Systems (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 207 (1978). 1 MARCH 1987 HEARINGS 37
i 3 3.3.1.1 l While a hearing is required on a construction permit appli- t cation, operating licer.se hearings can only be triggered by petitions to intervene, or'a Commission finding that such a ; hearing would be in the public interest. Carolina Power & 1 Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 -
& 4), ALAB-577, 11 NRC 18, 26 (1980), modified, CLI-80-12,'11 NRC 514 (1980). Licensing Boards have no independent authority to initiate adjudicatory proceedings without prior i action of some other component of the Commission. 10 CFR S 2.104(a) does not provide authority to a Licensing Board 3 considering a construction permit application to order a -
hearing on the yet to be filed operating license application. y Shearon Harris, suora, ALAB-577, 11 NRC 18, 27-28 (1980), modified, CLI-80-12,11 NRC 514 (1980). Section 2.104(a) of the Commission's Rules of Practice contemplates determination of a need for a hearing in the public interest on an operating license, only after application for such a license is made. ~ Carolina Power & Liaht Co. (Shearon Harris Nuclear Power l Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 27-28 (1980)- I Carolina Power & Liat)t 00, (Shearon Harris Huclear Power i Plant, Units 1, 2, 3 & 4), ALAB-581,11 NRC 233 (1980), modified, CLI-80-12,11 NRC 514 (1980). Generally speaking, Licensing Boards determine scheduling 3 matters on the basis of representations of counsel about ! projected completion dates, availability of necessary in- ! formation, and adequate opportunities for a fair and thorough hearing. The Board would take a harder look at an applicant's projected completion date if it could 'only be met by a greatly accelerated schedule, with minimal opportunities for discovery and the exercise of other procedural rights. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-83-8A,17 NRC 282, 286-87 (1983). An Appeal Board will overturn a Licensing Board's denial of a request for a schedule change only on finding that the Board abused its discretion by setting a schedule that deprives a party of its right to procedural due process. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 391 (1983), citina, Wisconsin Electric Power A (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1260 (1982), _quotina, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978); Cleveland Electric 111uminatina h (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 95 (1986). 3.3.1.1 Public Interest Requirements re Hearing Schedule In matters of scheduling, the paramount consideration is the public interest. The public interest is usually served by as rapid a decision as is possible consistent MARCH 1987 HEARINGS 38
'/ i 9 3.3.2.1 L ,) . .. . . . ..
'with everyone's opportunity to be heard. Potomac Electric _
, Power Co. (Douglas Point Nuclear Generating Station, Units 1
&;2), ALAB-277, 1 NRC 539 (1975).
* -Findings under 10 CFR 6 2.104(a) on;a need for a public hearing on an application for an operating license in the public interest cannot be made until' after such application. is .
filed. Such finding must be based on the application and all information then available. While'the Commission can determine that a' hearing on an operating' license is needed in the public interest, a Licensing Board could not. Carolina. Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 26-28 (1980), modi fied, CLI-80-12, 11 NRC'514 (1980). 3.3.1.2 Convenience of Litigants re Hearing Schedule l Although the convenience of litigants is entitled to recogni-l tion, it cannot be dispositive on questions of scheduling. !- Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separation Facility), ALAB-296, 2 Nix 671, 684~-685 (1975); Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539 (1975). A Nevertheless, ASLB action in keeping to its schedule despite l l (s) interveners' assertions that they were unable to prepare for cross-examination or to attend the hearing because of a need to prepare briefs in a related matter in the U.S. Court of Appeals has been held to be an error requiring reopening of the hearing. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-249, 8 AEC 980 (1974). L 3.3.1.3 ' Adjourned Hearings (RESERVED)
- l. 3.3.2 Postponement of Hearings 3.3.2.1 Factors Considered in Hearing Postponement i Where there is no immediate need for the license sought, the .
ASLB decision as to whether to go forward with hearings or l postpone them should be guided by the three factors listed in ! the Doualas Point case; namely: (1) the likelihood that findings would retain their validity; (2) the advantage to the public and to litigants in having ; early, though possibly inconclusive, resolution; (3) the possible prejudice arising from an early hearing. MARCH 1987 HEARINGS 39 l
f 9 3.3.2.2 Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Ur.its 1 & 2), ALAB-277, 1 NRC 539 (1975). The fact that s party has failed to retain counsel in a timely manner is not grounds for seeking a delay in the commencement of. hearings. Offshore Power Systems (Manu-facturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813, 816 (1975). j A Licensing Board has considered the following factors in evaluating an NRC Staff motion to stay the commencement of a '. show cause proceeding involving the Staff's issuance of an i immediately effective license suspension order: 1) the length l of the requested stay; 2) the reasons for requesting the stay, 1
- 3) whether the licensee has persistently asserted its rights 1 to a prompt hearing and to other procedural means to resolve i the matter; and 4) the resulting prejudice to the licensee's l interests if the stay is granted. Finlav Testina Labora- 1
. tories. Inc., LBP-88-1A, 27 NRC 19, 23-26 (1988), citina, j Barker v. Winao, 407 U.S. 514 (1972).
3.3.2.2 Effect of Plant Deferral on Hearing Postponement The deferral of a plant which has been noticed for hearing does not necessarily mean that hearings should be postponed. At the same time, an ASLB does have authority to adjust discovery and hearing schedules in response to such deferral. i Wisconsin Electric Power Co. (Koshkonong Nuclear Power Plant, l Units 1 & 2), CLI-75-2, 1 NRC 39 (1975). Note also that the l adjudicatory early site review procedures set forth in 10 CFR ' Part 2 provide a means by which separate, early hearings may be held on site suitability matters despite the fact that the proposed plant and related construction permit proceedings have been deferred. 1 3.3.2.3 Sudden Absence of ASLB Member at Hearing When there is a sudden absence of a technical member, con-sideration of hearina postponement must be made, and if time permits, the parties' views must be solicited before a postponement decision is rendcred. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-222, 8 AEC 229 (1974). Note that in Commonwealth Edison Co. (Zion Station, Units 1 & 2), CLI-74-35, 8 AEC 374 (1974), the Commission reviewed ALAB-222. While the Commission was not in total agreement with the Appeal Board's setting of inflexible guidelines for invoking the quorum rule, it agreed in principle with the Appeal Board's view that all three ASLB members must participate to the maximum extent possible in evidentiary hearings. As such, it appears that the above guidance from ALAB-222 remains in effect. JUNE 1988 HEARINGS 40
f \_ l [ v [ 9'3.3.3 l 3.3.2.4 Time Extensions for Case Preparation Before Hearing In view of the disparity between the Staff and applicant on the one hand and interveners on the other wit time available for review and case preparation? theregard Appeal to the Panel has been solicitous of interveners' desir,es for additional time for case preparation. Spm.p_,L., Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-212, 7 AEC 986, 992-93 (1974). At the same time, a party's failure to have as yet retained counsel does not 3rovide grounds for seeking a delay in proceedings. Offslore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813 (1975). Moreover, a party must make a timely request for additional time to prepare its case; otherwise, it may waive its right to complain. Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 188-89 (1978). More recently, too, both the Commission and the Appeal Board have made it clear that the fact that a party may possess fewer resources than others to devote to a proceeding does not relieve that party of its hearing obligations. $_qg Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 454 (1981); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-(n) u/ 696, 16 NRC 1245, 1261 n.29 (1982). The Appeal Board granted Staff's request for an extension of a deadline for filing written testimony but called the matter to the attention of the Commission, which has supervisory authority over the Staff. In granting the extension, made as a result of the Staff's inability to meet the earlier deadline due to assignment of Staff to Three Mile Island related matters, the Board rejected the intervenor's suggestion that it hold a hearing to determine the reasons for, and reason-ableness of, the extension request. Florida Power and Liaht Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-553, 10 NRC 12 (1979). Where time extensions have been granted, the original time period is not material to a determination as to whether due process has been observed. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 467 (1980). 3.3.3 Scheduling Disagreements Among Parties Parties must lodge promptly any objections they may have to the scheduling of the prehearing phase of a proceeding. Late l requests for changes in scheduling will not be countenanced j
.77 absent extraordinary unexpected circumstances. Consolidated I
() " LiispftQo. of N.Y. (Indian Point, Units 1, 2 & 3), ALAB-377, ) 5 NRC 430 (1977). JUNE 1988 HEARINGS 41 l
9 3.3.4 3.3.4 Appeals of Hearing Date Rulings As a general rule, scheduling is a matter of ASLB discretion. ; As such, Appeal Boards are disinclined to interfere with ! scheduling decisions absent a "truly exceptional situation" which warrants ASLAB interlocutory consideration. Public Service Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-295, 2 NRC 668 s1975); Public Service Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-293, 2 NRC 660 (1975). Since the responsibility for conduct of the hearing rests with the presiding officer pursuant to 5 U.S.C. 9 556(c) and 10 CFR 9 2.718, the Appeal Board is reluctant to examine a Licensing Board's scheduling decision except where there is a claim that I such decision constituted an abuse of discretion and amounted to a denial of procedural due process. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 138 (1978); WJsconsin Electric Power Co. l (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245, j 1260 (1982); Houston Liahtina and Power Co. (South Texas ! Project, Units 1 and 2), ALAB-799, 21 NRC 360, 379 (1985); 4 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB- l 813, 22 NRC 59, 74 & n.68, 83 (1985). With regard to claims of insufficient time to prepare for a hearing, even if a party is correct in its assertion that the Staff received an initial time advantage in preparing testimony as a result of scheduling, it must make a reasonable effort to have the procedural error corrected (by requesting additional time to respond) and not wait to use the error as grounds for appeal if the party disagrees with the decision on the merits. A party is entitled to a fair hearing, not a perfect one. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 188-89 (1978). Although, absent special circumstances, the Appeal Board will generally review Licensing Board scheduling determinations only where confronted with a claim of deprivation of due process, the Appeal Board may, on occasion, review a Licensing Board scheduling matter when that scheduling appears to be based on the Licensing Board's misapprehension of an Appeal Board directive. See. n, Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-468, 7 NRC 464, 468 (1978). l l 3.3.5 Location of Hearing I (RESERVED) 3.3.5.1 Public Interest Requirements re Hearing Location (RESERVED) JUNE 1988 HEARINGS 42
O, s-
)
p j X- 9 3.3.6 )
/ 3.3.5.2 Convenience of Litigants Affecting Hearing Location As a matter of policy, most evidentiary hearings in.NRC pro-ceedings'are conducted in- the general vicinity'of the site of the facility involved. . In generic matters, however, when the hearing encompasses distinct, geographically separated facil-ities and no relationship exists between-the highly technical questions to be heard and the particular_ features-of.those facilities or their sites, the governing consideration in determining 'the place of hearing should be the convenience of the participants in the hearing. Philadelphia ElectricA (Peach Bottom Atomic Power. Station, Units 2 &-3), ALAB-566, 10 NRC 527, 530-531 (1979).
3.3.6 Consolidation of Hearings and of Parties Consolidation of hearings is covered generally by 10 CFR 9 2.716. Consolidation of parties is covered generally by 10 CFR 9 2.715a. A Board, on its own initiative, may consolidate parties who
' share substantially the same interest and who raise substan-tially the same questions, except when such action would prejudice one of the interveners. Philadelphia Electric Co.
i (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC
.(GU
) 479, 501 (1986), citina, 10 CFR 9 2.715a and Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 455 (1981).
Consolidation is primarily discretionary with the Boards involved. Taking into account the familiarity of the Licens-ing Boards with the issues most likely to bear on a consoli-dation motion, the Commission will interpose its judgment in ; consolidation cases only in the most unusual circumstances. ' Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), CLI-76-26, 4 NRC 608 (1976). Under 10 CFR 9 2.716, consolidation is permitted if found to be conducive to the proper dispatch of the Board's business and to the ends of justice. Dairvland Pover Cooperative (La Crosse Boiling Water Reactor, Operating License and Show Cause), LBP-81-31, 14 NRC 375, 377 (1981). The Commission may in its own discretion order the con-solidation of two or more export licensing proceedings, and may utilize 10 CFR 9 2.716 as guidance for deciding whether or not to take such action. Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Materials), CLI-77-16, 5 NRC 1327, 1328-1329 (1977). Note, however, that persons who are
/ not parties to either of two adjudicatory proceedings have \ no standing to have those proceedings consolidated under i Section 2.716. BL at 1328. Where proceedings on two l SEPTEMBER 1988 HEARINGS 43
S 3.3.7 separate applications are consolidated, the Commission may explicitly reserve the right te act upon the applications at different times. Edlow International Co. (Agent for the Government of India on Application to Export Special Nuclear Materials), CLI-78-4, 7 NRC 311, 312 (1978). See also l Braunkohle Transoort. USA (Import of South African Uranium Ore '
. Concentrate), CLI-87-6, 25 NRC 891, 894 (1987). !
3.3.7 In Camera Hearings ! No reason exists for an in camera hearing on security grounds where there is no showing of some incremental gain in security , from keeping the information secret. Duke Power Co. (Amend- ! ment to Materials License SNM-1773, Transportation of Spent Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station), CLI-80-3, 11 NRC 185, 186 (1980). Procedures for in camera hearings are discussed in Pacific Gas j
& Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & j 2), ALAB-580, 11 NRC 227 (1980).
Where a party to a hearing objects to the disclosure of information and makes out a pfima facie case that the material , is proprietary in nature, it is proper for an adjudicatory l board to issue a protective order and conduct an in camera j session. If, upon consideration, the Board determined that the material was not proprietary, it would order the material released for the public record. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-807, 21 NRC 1195, 1214-15 (1985). See also Commonwealth Edison Co. (Zion 1 Station, Units 1 and 2), ALAB-196, 7 AEC 457, 469 (1974). 1 Because the party that seeks disclosure of allegedly proprie-tary information has the right to conduct cross-examination jn ! camera, no prejudice results from an adjudicatory board's use l of this procedure. Three Mile Island, sucra, 21 NRC at 1215. Following 1ssuance of a protective order enabling an in-tervenor to obtain useful information, a Board can defer ruling on objections concerning the public's right to know until after the merits of the case are considered; if an intervenor has difficulties due to failure to participate in fn camera sessions, these cannot affect the Board's ruling on the merits. Wisconsin Electric Power Co. (Point Beach Nuclear P1 ant, Units 1 and 2), LBP-81-55, 14 NRC 1017, 1025 (1981). 3.4 Issues for Hearina The judgment of a Licensing Board with regard to what is or is not in controversy in a proceeding being conducted by it is entitled to great respect. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977). SEPTEMBER 1988 HEARINGS 44
.g 6 3.4
-(",/ A Licensing Board does not have the power to explore matters beyond those which are embraced by the notice of hearing for the particular proceeding. This is a holding of general applicability. Portland General Electric Company (Trojan luclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979); Public Service Company of Indiana (Marble lill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 1 , 170-71 (1976). See also Northern Indiana Public Service Comoany (Bailly Generating Station, Nuclear-1), ALAB-619, 12 NRC 558, 565 (1980);
Commonwealth Edison Company (Zion Station, Units 1 & 2), ALAB-616,12 NRC 419, 426 (1980); Metropolitan Edison Co. (Three Milt Island Nuclear Station, Unit No.1), LBP-83-76,18 NRC 1266,1269,1286 (1983). l The Commission's delegation of authority to a Licensing Board to conduct any necessary proceedings pursuant to 10 CFR Part 2, Subpart [ G includes the authority to permit an applicant for a license i l amendment to file contentions in a hearing requested by other parties i even though the applicant may have waived its own right to a hearing. There are no specific regulations which govern the filing of contentions by an applicant. However, since an applicant is a party to a proceeding, it should have the same rights as other parties to the proceeding, which include the right to submit contentions,10 CFR 9 2.714, and the right to file late contentions under certain conditions, 10 CFR 9 2.714(a). Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-84-42, 20 NRC 1296, 1305-1307 [g O
; (1984).
l The issue of management capability to operate a facility is better I determined at the time of the operating licerm application, than years in advance on the basis of preliminary plans. Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18 (1980), modified, CLI-80-12, 11 NRC 514 (1980). A decisionmaking body must confront the facts and legal arguments presented by the parties and articulate the reasons for its con-clusions on disputed issues, i.e., take a hard look at the salient problems. Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 366 (1983), citina, Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 41 (1977), aff'd, CLI-78-1, 7 NRC 1 (1978), Aff'd sub nom., New Enoland Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir.1978); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 836 (1984), affirmina in part (full power license for Unit 1), LBP-82-70,16 NRC 756 (1982). Findings under 10 CFR 9 2.104(a) on a need for a public hearing on issues involved in an application for an operating license cannot be made until after such application is filed. Such finding must be based on the application and information then available. Carolina Power & Liaht Co. (Shearon Harris Nuclear Plant, Units 1, 2, 3 & 4), A ALAB-577, 11 NRC 18 (1980), modified, CLI-80-12,11 NRC 514 (1980). JUNE 1988 HEARINGS 45 l
l h Since the Appendix I (of 10 CFR 50) rule itself does not specify health effects, and there is no evidence that the purpose of the Appendix I rulemaking was to determine generally health effects from Appendix I releases, it follows that health effects of Appendix I releases must be litigable in individual licensing proceedings. 1 Public Service Comoany of Oklahoma (Black Fox Station, Units 1 and l 2), CLI-80-31, 12 NRC 264, 276 (1980). See also Consolidated Edison Co. of N.Y. (Indian Point, Unit No. 2); Power Authority of the State of N.Y. (Indian Point, Unit No. 3), LBP-82-105, 16 NRC 1629, 1641 (1982), citina, Black Fox, supra, 12 NRC at 264. Upon certification the Commission held that in view of the fact that the THI accident resulted in generation of hydrogen gas in excess of j hydrogen generation design basis assumptions of 10 CFR s 50.44, hydrogen gas control could be properly litigated under Part 100. Under Part 100, hydrogen control measures beyond those required by 10 CFR 9 50.44 would be required if it is cetermined that there is a credible loss-of-coolant accident scenarb entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guidelines values. Metropolitan Edison Comoany (Three Mile Island, Unit No.1), CLI-80-16, 11 NRC 674, 675 (1980). See also Illinois Power Ch (Clinton Power Station, Unit 1), LBP-82-103, 16 NRC 1603, 1609 (1982), citina, Three Mile Island, suora,11 NRC at 675. ; A genuine scientific disagreement on a central decisional issue is the type of matter that should ordinarily be raised for adversarial exploration and eventual resolution in the adjudicatory context. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-715, 17 NRC 102, 105 (1983). Sfa Viroinia Electric and Powec Co. (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC o 491 (1976), aff'd sub nom. Virainia Electric and Power Co. v. NRC, 571 F.2d 1289 (4th Cir.1978); Consumers Power Co. (Midland Plant, Units I and 2), ALAB-691, 16 NRC 897, 912-13 (1982), review declined, CLI '3-2, 17 NRC 69 (1983). l The commission may entirely eliminate certain issues from operating license consideration on the ground that they are suited for examination only at the earlier construction permit stage. Short of that, the Commission has considerable discretion to provide by rule that only issues that were or could have been raised by a party to the construction permit proceeding will not be entertained at the l operating license stage except upon such a showing as " changed circumstances" or " newly discovered evidence." Commission practice, however, has been to determine the litigability of issues at the operating license stage with reference to conventional res .iudicata and collateral estoppel principles. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 354 (1983), citina, Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 696-97 (1982). JUNE 1988 HEARINGS 46
,, & 3.4.1 ) /
V) It is not a profitable use of adjudicatory time to litigate the Probabilistic Risk Assessment (PRA) methodology used on the chance ! that different methodology would identify a new problem or sub- I stantially modify ex' sting safety concerns. If it is known that a , problem exists which would be illustrated by a change in PRA method-ology, that problem can be litigated directly; there is no need to modify the PRA to consider it. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 73 (1983). 3.4.1 Intervenor's Contentions - Admissibility at Hearing Contentions are like Federal court complaints; before any decision that a contention should not be entertained, the proponent of the contention must be given some chance to be heard in response. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-81-18, 14 NRC 71, 73 (1981), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521 (1979). i 10 CFR 6 2.714 sets forth the criteria by which ASLBs are to judge the admissibility of contentions. Pursuant to that regulation, a contantion is acceptable as an issue in controversy if some basis is provided for the contention and the basis is set forth with particularity. In passing on the admissibility of a contention, a Licensing Board is not to consider the merits of the contention itself. Alabama Power (Vn) Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210, 216 (1974); Duauesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973); Illinois Power Co. (Clinton Power Station, Units 1 and 2), LBP-81-15, 13 NRC 708, 711 (1981). Although amendments to the Commission's Rules of Practice with regard to intervention have affected the time as to which contentions must be filed, the amended rules retain the requirement that the basis for contentions be set forth with reasonable specificity. 10 CFR 6 2.714(b); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 802 n.73 (1983), review denied, CLI-l 83-32, 18 NRC 1309 (1983). A Licensing Board is not author-l ized to admit conditionally, for any reason, a contention that
- falls short of meeting the requirement of reasonable specifi-city set forth in 10 CFR 6 2.714. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 467 (1982), vacated in part on other arounds, CLI-83-19, 17 NRC 1041 (1983).
General fears or criticisms of past practices of the nu-l clear industry or the applicant are not appropriate bases ! for contentions unless there is reason to suspect the specific procedures or safety-related tests used in a l x
) proposed demonstration program which requires a license O
JUNE 1988 HEARINGS 47 L___ _ _ _ _ - - - - - - - I
9 3.4.1 amendment. Wisconsin Electric Power Co. (Point Beach Nuclear ! Plant, Units 1 and 2), LBP-81-55,14 NRC 1017,1026 (1981). j Where the laws of physics deprive a proposed contention of any ! credible or arguable basis, the contention will not be i admitted. Philadelphia Electric Co. (Limerick Generating j Station, Units 1 and 2), LBP-84-16, 19 NRC 857, 870 (1984), I af,f'd, ALAB-76h 19 NRC 645, 654 n.13 (1984); compare Houston Lichtina and Pgy r Co. (Allens Creek Nuclear Generating Station, Unh 1,, ALAB-590, 11 NRC 542 (1980). { 1 When the BoaFd requires an applicant and the Staff to file 1 briefs concerning the admissibility of contentions, intervenor must give reasons or authority for rejecting arguments presented in the required briefs. In ruling on admissibility, the Licensing Board should not reach the merits and should not require the introduction of underlying evidence, provided that j the basis for the contention is identified with reasonable specificity. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24,14 NRC 175, 181-83 (1981). Whether or not a basis for contentions has been established must be decided by considering the conten-tions in the context of the entire record of the case up to the time the contentions are filed. Thus, when an application for. a license amendment is itself incomplete, the standard for the; admission of contentions is lowered, because it is easier i fof petitioners to have reasons for believing that the ' application has not demonstrated the safety of the proposed procedures for which an amendment is sought. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-45, 14 NRC 853 (1981). A contention concerning the health effects of . radon emissions will be admitted only if the documented opinion of one or more qualified authorities is provided to the Licensing Board that the incremental (health effects of) fuel cycle-related radon emissions will be greater than those determined in the Appeal Board proceeding. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1454 (1982), citino, Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654, 14 NRC 632, 635(1981). Where the only NEPA matters in controversy are legal con-tentions that there has been a failure to comply with NEPA and 10 CFR Part 51, the Board may rule on the contentions without further evidentiary hearings, making use of the existing evidentiary record and additional material of which it can take official notice. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-81-60,14 NRC 1724,1728 (1981). 1 JUNE 1988 HEARINGS 48 E_____--_____
O 9 3.4.2 When considering admission of new intervenor contentions based on new regulatory requirements, the Licensing Board must find a " nexus" between the new requirements and the l particular facility involved in the proceeding, and that the l contentions raise significant issues. The new contentions need not be solely related to contentions previously admitted, but may address themselves to the new requirements imposed. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-5, 13 NRC 226, 233-34 (1981). l As a general rule, Licensing Boards should not accept in individual license proceedings contentions which are (or about to become) the subject of general rulemaking by the Commission. As a corollary, certain issues included in an adjudicatory proceeding may be rendered inappropriate for resolution in that proceeding because the Commission has taken generic action during the pendency of the adjudication. There may nonetheless be situations in which matters subject to t generic consideration may also be evaluated on a case-by-case basis where such evaluation is contemplated by, or at least consistent with, the approach adopted in the rulemaking proceeding. Metropolitan Edison Co. (Three Mile Island j Nuclear Station, Unit No. 1), *. LAB-729, 17 NRC 814, 889-90 l n (1983), Aff_'d, CLI-84-11, 20 NRC 1 (1984). 3.4.2 Issues Not Raised by Parties A Licensing Board may, on its own motion, explore issues which the parties themselves have not placed in controversy. 10 CFR S 2.760a; Consolidated Edison Co. of N.Y.. Inc. (Indian Point Nuclear Generating Station, Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 (1976). This power, however, is not a license to conduct fi:.hing expeditions and, in operating license proceedings, should be exercised sparingly and only in extraordinary circumstances where the Board concludes that a serious safety or environmental issue remains. Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating Station, Unit 3), CLI-74-28, 8 AEC 7 (1974); Texas Utilities Generatina [ h (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614, 615 (1981); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant), LBP-85-49, 22 NRC 899, 915 n.2 (1985). The Commission's Indian Point ruling has been incorporated into the regulations in modified form at 10 CFR S 2.760a. When a Licensing Board in an operating license proceeding considers issues which might be deemed to be raised sua soonte by the Board, it should transmit copies of the order raising such issues to the Commission and General Counsel in accor-dance with the Secretary's memo of June 30, 1981. Houston Ljohtina and Power Co. (South Texas Project, Units 1 and 2), (Qj LBP-81-54, 14 NRC 918, 922-923 (1981). JUNE 1988 HEARINGS 49
S 3.4.2 The Licensing Board may be alerted to such serious issues not-raised by the parties through the statements of those making limited appearances. .531 Iowa Electric Liaht & Power Cq, (Duane Arnold Energy Center), ALAB-108, 6 AEC 195,196 n.4 (1973). Pursuant to authority granted under 10 CFR 9 2.760a, the presiding officer in an operating license proceeding may examine matters not put into controversy by the parties only where he or she determines that a serious safety, environ-mental or common defense and security matter exists. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614, 615 (1981); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC IS,' 26 (1987), reconsid, denied on other arounds, ALAB-876, 26 NRC 277 (1987). The Commission has directed that when a Licensing Board or an Appeal Board raises an issue sua soonte in an operating license proceeding, it must issue a separate order making the requisite findings, briefly state its reasons for raising the issue, and forward a copy of the order to the OGC and the Commission. Comanche Peak, CLI-81-24, suora; Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 25 (1987). A Licensing Board may raise a safety issue sua sponte when sufficient evidence of a serious safety matter has been presented that reasonable minds could l inquire further. Very specific findings are not required 1 since they could cause prejudgment problems. The Board need only give its reasons for raising the problem. Southern California Edison Co. (San Onofre Nuclear Generating Station, ; Units 2 and 3), LBP-81-36, 14 NRC 691, 697 (1981). j In an operating license proceeding where a hearing is convened as a result of intervention, the Licensing Board will resolve all issues raised by the parties and any issues which it raises sya sponte. Consolidated Edison Co. of N.Y.. Inc. (Indian Point Nuclear Generating Station, Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 (1976). The ; decision as to all other matters which need to be con- ! sidered prior to issuance of the operating license is the I responsibility of the NRC Staff alone. Indian Point, suora, 3 NRC at 190; Portland General Electric Coz (Trojan Nuclear Plant), ALAB-181, 7 AEC 207, 209 n.7 (1974); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 58 (1984). Once the Licensing Board has resolved all contested issues and any sua sponte issues, the NRC Staff then has the authority to decide if any other matters need to be considered prior to the issuance of an operating license. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-81-23, 14 NRC 159 (1981). The mere acceptance of a contention does not justify a MARCH 1988 HEARINGS 50
i 4 I
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6 3.4.4 (j Board's assuming that a serious safety, environmental, or i common defense and security matter exists or otherwise l relieve it of the obligation under 10 CFR 9 2.760a to i affirmatively determine that such a situation exists. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1114 (1981). In a construction permit proceeding, the Licensing Board has a duty to assure that the NRC Staff's review was adequate, even as to matters which are uncontested. Gulf States Utilities
.CL. (River Bend Station, Units 1 & 2), ALAB-444, 6 NRC 760, 774 (1977).
3.4.3 Issues Not Addressed by a Party The fact that the Staff may be estopped from asserting a position does not affect a Board's independent responsibility to consider the issue involved. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-268, 1 NRC 383 (1975). An adjudicatory board's examination of unresolved generic safety issues, not put into controversy by the parties, is necessarily limited to whether the Staff's approach is
,m plausible, and whether the explanations given for support of (d I continued safe operation of the facility are sufficient on their face. Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), ALAB-620, 12 NRC 574, 577 (1980).
The parties must be given an opportunity, at oral hearing or by written pleadings, to produce relevant evidence concerning abuses of Commission regulations and adjudicatory process, but if a party fails to formally tender such evidence, the Licensing Board should not engage in its own independent and selective search of the record. Philadelphia Electric Co. (Fulton Generating Station, Units 1 and 2), ALAB-657, 14 NRC 967, 978 (1981). 3.4.4 Separate Hearings on Special Issues Pursuant to a Licensing Board's general power to regulate the course of a hearing under 10 CFR 9 2.718, such Boards have the authority to consider, either on their own or at a party's request, a particular issue separately from and prior to other issues that must be decided in a pro-ceeding. Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539, 544 (1975). See also 10 CFR Part 2, Appendix A, para. I(c)(1). Indeed, multiple contentions can be grouped and litigated in separate segments of the evidentiary hearing so as to enable the Licensing Board to issue separate partial initial decisions, each of which de-(nU) cides a major segment of the case. Lona Island Liahtina DECEMBER 1987 HEARINGS 51 L_-___---_---
S 3.4.5 QL (Shoreham Nuclear Power Station, Unit 1), LBP-83-30,17 NRC 1132, 1136 (1983). In a special proceeding, where the Commission has specified the istues for hearing, a Licensing Board is obliged to resolve all such issues even in the absence of active participation by. interveners. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193, 1263 (1984), rev'd in oart on other arounds, CLI-85-2, 21 NRC 282 (1985). A request for a low-power license does not give rise to an entire proceeding separate and apart from a pending full-power i operating license proceeding. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-82-39, 16 NRC 1712, 1715 (1982), citina, Pacific Gas and Electric Co. , (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, l 13 NRC 361 (1981). The Appeal Board's holding in Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ! ALAB-277, 1 NRC 539 (1975), that any early findings made by a l Licensing Board, in circumstances where the applicant had dis-closed an intent to postpone construction for several years, would be open to reconsideration "only if supervening develop-ments or newly available evidence so warrant", does 9t sup-port a later Licensing Board's action in imposing a dmilar limitation on the right to raise issues which were not encom- ! passed by the early findings. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 386-387 (1979), reconsid. denied, ALAB-539, 9 NRC 422 (1979). 3.4.5 Construction Permit Extension Proceedings An applicant who fails to file a timely request for an extension of its construction permit and allows the permit to expire does not automatically forfeit the permit. The Commission has held that a construction permit does not lapse until the Commission has taken affirmative action to complete the forfeiture. The Commission will consider and may grant an untimely application for an extension of the construction perniit, without requiring the initiation of a new construction permit proceeding. However, the applicant must still establish good cause for an extension of its permit. In addition, the applicant is not entitled to continue its construction activities after the expiration date of its permit and prior to any extension of its permit. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 120 & nn. 4-5 (1986). Interveners in a construction permit extension proceeding may only litigate those issues that (1) arise from the reasons assigned to the requested extension, and (2) cannot abide the SEPTEMBER 1988 HEARINGS 52
p) i v 5 3.4.5 operating license proceeding. Northern Indiana Public Service _Q_p_,. (Bailly Generating Station, Nuclear-1), LBP-80-31, 12 NRC 699, 701 (1980); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-41, 15 NRC 1295, 1301 (1982). i Contentions having no discernible relationship to the construction permit extension are inadmissible in a permit extension proceeding; a show-cause proceeding under 10 CFR
.s 2.206 is the exclusive remedy. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), LBP-81-6, 13 NRC 253, 254 (1981), citina, Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558-(1980); Shoreham, supra,15 NRC at 1302; Public Service Co. of New Hampshire (Seabrook Station, Unit 2), CLI-84-6, 19 NRC 975, 979 (1984).
The focus of any construction permit extension proceeding is to be whether " good cause" exists for the requested extension. l Determination of the scope of an extension proceeding should be based on " common sense" and the " totality of the circum-stances," more specifically whether the reasons assigned for the extension give rise to health and safety or environmental issues which cannot appropriately abide the event of the environmental review-facility operating license hearing. A A contention cannot be litigated in a construction permit
'tj
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extension proceeding when an operating license proceeding is pending in which the issue can be raised; and, prior to the operating license proceeding, a contention having nothing whatsoever to do with the causes of delay or the permit holder's justifications for an extension cannot be litigated in a construction permit proceeding. In seeking an extension, a permit holder must put forth reasons, founded in fact, that explain why the delay occurred and those reasons must, as a matter of law, be sufficient to sustain a finding of good cause. llashinaton Public Power Supply System (WPPSS Nuclear Project Nos. I and 2), CLI-82-29, 16 NRC 1221, 1227, 1229-30 (1982), citina, Indiana and Michiaan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), ALAB-129, 6 AEC 414 (1973); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-619, 12 NRC 558 (1980). See Washinaton Public Power Supply System (WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 1189 (1984). The NRC's inquiry will be into reasons that have contri-buted to the delay in construction and whethe- those reasons constitute " good cause" for the extension; the same limitation to apply to any interested person seeking to challenge the request for an extension. The most
" common sense" approach to the interpretation of Section 185 of the Atomic Energy Act and 10 CFR 50.55 is that h
V the scope of a construction permit extension proceeding is limited to direct challenges to the permit holder's asserted reasons that show " good uca se" justification for SEPTEMBER 1988 HEARINGS 53
f-( l 9 3.4.5 the delay. WPPSS, supra, 16 NRC at 1228-1229; Washinaton Public Power Supoly System (WPPSS Nuclear Project No. 2), ALAB-722, 17 NRC 546, 550-51 (1983); Public Service Co. of New Hamoshire (Seabrook Station, Unit 2), CLI-846, 19 NRC 975, 978 (1984); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113, 121 (1986). A permit holder may establish good cause for delays by showing a need to correct deficiencies which resulted from a previous corporate policy to speed construction by intention-ally violating NRC requirements. The permit holder must also show that the previous policy has since been discarded and repudiated. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-15, 24 NRC 397, 403 (1986). An intervenor's concerns about substantive safety issues are inadmissible in a construction permit extension proceeding. Such concerns are more appropriately raised in an operating license proceeding or in a 10 CFR 2.206 petition for NRC Staff enforcement action against the applicant. Comanche Peak, suora, 23 NRC at 121 & n.6, 123. The test for determining whether a contention is within the
. scope of a construction permit extension proceeding is a two-pronged one. First, the construction delays at issue have to !
be traceable to the applicant. Second, the delays must be !
" dilatory." If both prongs are met, the delay is without " good cause." WPPSS, jLuora, CLI-82-29, 16 NRC at 1231; ALAB-722, 17 NRC at 551; Washinaton Public Power Sutoly System (WPPSS Nuclear Project No.1), LBP-84-9,19 NRC 497, 502 (1984), i aff'd, ALAB-771, 19 NRC 1183, 1189 (1984). l i
" Dilatory conduct" in the sense used by the Commission in defining the test for determining whether a contention is within the scope of a construction permit extension pro-ceeding means the intentional delay of construction without a valid purpose. WPPSS, suora, ALAB-722, 17 NRC at 552; WPPSS, suora, LBP-84-9, 19 NRC at 502, aff'd, ALAB-771, 19 NRC at 1190.
An intentional slowing of construction because of a temporary lack of financial resources or a slower growth rate of l electric power than had been originally projected would ! constif';te delay for a valid business purpose. WPPSS, suora, ! LBP-84-9, 19 NRC at 504, aff'd, ALAB-771, 19 NRC at 1190. l The Licensing Board should not substitute its judgment for that of the applicant in selecting one among a number of reasonable business alternatives. It is not the Board's mission to superintend utility management when it makes business judgments for which it is ultimately responsible. WPPSS, suora, ALAB-771, 19 NRC at 1190-91, citina, Detroit SEPTEMBER 1988 HEARINGS 54 ___-_--._m. . . _ _ _ _ _ _ - _ _ _ _ _ _ . _ _ _ _ _
A 9 3.5 .( C) Edison Co. (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-475, 7 NRC 752, 757-58 (1978). Unless an applicant is responsible for delays in completion of construction and acted in a dilatory manner (i.e., intention-ally and without a valid purpose), a contested construction permit extension proceeding is not to be undertaken at all. Moreover, even if a properly framed contention leads to such a-proceeding and is proven true, the Atomic Energy Act and implementating regulations do not erect an absolute bar to extending the permit. A judgment must still be made as to whether continued construction should nonetheless be allowed. WPPSS, supra, ALAB-722, 17 NRC at 553. A consideration of the health, safety or environmental effects of delaying construction cannot be heard at the construction permit extension proceeding but must await the operating license stage. WPPSS, suord, LBP-84-9, 19 NRC at 506-07, aff'd, ALAB-771, 19 NRC at 1189. There is no basis in the Atomic Energy Act or in the regula-tions for challenging the period of time in the requested extension on the grounds that the period requested is too short. WPPSS, suora, LBP-84-9, 19 NRC at 506, aff'd, ALAB-
,q 771, 19 NRC at 1191.
3.4.6 Export Licensing Proceedings Issues The export licensing process is an inappropriate forum to consider generic safety questions posed by nuclear power plants. Under the Atomic Energy Act, as amended by the Nuclear Non-proliferation Act of 1978, the Commission in making its export licensing determinations focuses on non-proliferation and safeguards concerns, and not on foreign health and safety matters. Westinghouse Electric CmL (Export to South Korea), CLI-80-30, 12 NRC 253, 260-261 (1980); General Electric Co. (Exports to Taiwan), CLI-81-2, 13 NRC 67, 71 (1981). (See also 6.29.2) 3.5 Summary Disposition In Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210, 217 (1974), the Appeal Board found that summary disposition, governed by 10 CFR 9 2.749, was analogous to and had a judicial counterpart in Rule 56 of the Federal Rules of Civil Procedure which authorizes the filing of a motion for summary judgment. See also Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512., 519 (1982), citind, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753-754 (1977); (N Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), LBP-85-27A, DECEMBER 1986 HEARINGS 55
I l 5 3.5 i 22 NRC 207, 208 (1985); Florida Power and Liaht Co. (Turkey Point i Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 NRC 300, 310 (1985); Commonwealth Edison Ch (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12, 23 NRC 414, 417 (1986). Decisions arising under the Federal Rules may serve as guidelines to Licensing Boards in applying 10 CFR 2.749. Dairvland Power Coooera-11y.g (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982), citing, Perry, supra, 6 NRC at 754; Public Service D. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877, 878-879 (1974). Subsequent decisions of Licensing Boards have analogized 10 CFR s 2.749 to Rule 56 to the extent that the Rule applied in the cases in question. Sgg, g.a., Public Service Co. of i Oklahoma (Black Fox Station, Units 1 & 2), ALAB-573,10 NRC 775, 787 l n.b1 (1978); Gulf States Utilities Co. (River Bend Station, Units 1 & 2), LBP-75-10, 1 NRC 246, 247 (1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), LBP-74-36, 7 AEC 877, 878 (1974). (See also 5.8.5) Under the concept of summary disposition (or summary judgment), I the motion is granted only where the movant is entitled to judg- l ment as a matter of law, where it is quite clear what the truth l 1s and where there is no genuine issue of material fact that re- ) mains for trial. Tennessee Valley Authority (Browns Ferry Nuclear ! Plant, Units 1, 2 & 3), LBP-73-29, 6 AEC 682, 688 (1973). A con-tention will not be summarily dismissed where the Licensing Board determines that there still exist controverted issues of material fact. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), LBP-81-34, 14 NRC 637, 640-41 (1981). Admission as a party to a Commission proceeding based on one acceptable contention does not preclude summary disposition nor guarantee a party a hearing on its contentions. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1258 n.15 (1982), citina, Houston Liahtina and Power _C_o2 (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550 (1980). Section 2.749, like Rule 56, is a pro-cedural device to be used as part of a screening mechanism for eliminating unnecessary consideration of assertions which do not involve factual controversy. Use of summary disposition to resolve tenuous issues raised in petitions to intervene has been encouraged by the Commission and the Appeal Board. l- g.a., Northern States Power Co. (Prairie Island Nuclear Genen. ting Plant, Units 1 & 2), CLI-73-12, 6 AEC 241, 242 (1973); Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-629, 13 NRC 75,'77 (1981); Mississiooi Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-130, 6 AEC 423, 424-25 (1973); Duouesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 246 (1973); Pennsylvania Power and Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC 335, 337 (1981). If the issue is demonstrably insubstantial, it should be decided pursuant to summary disposition procedures to avoid unnecessary and possibly time-consuming hearings. Louisiana Power and Licht DECEMBER 1986 HEARINGS 56
9 3.5 O)
\'"
h (Waterford Steam Electric Station, Unit 3), LBP-81-48, 14 NRC 877, 883 (1981), citina, Houston Liahtino and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980). The Commission's summary disposition rule (10 CFR 9 2.749) gives a party a right to an evidentiary hearing only where there is a genuine issue of material fact. An important effect of this principle is that applicants for licenses may be subject to substantial expense and delay when genuine issues have been raised, but are entitled to an expeditious determination, without need for an evidentiary hearing on all issues which are not genuine. Consumers Power Co. (Big Rock Point Plant), LBP-82-8, 15 NRC 299, 301 (1982). On its face, 10 CFR 9 2.749 provides a remedy only with regard to matters which have not already been the subject of an evidentiary hearing in the proceedings at bar, but which are susceptible of final resolution on the papers submitted by the parties in advance of any such hearing. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 18, and 28), ALAB-554, 10 NRC 15, 19 (1979). A Board may grant summary disposition as to all or any part of the matters involved in an operating license proceeding. Houston Liabtina and Power Co. (South Texas Project, Units 1 and 2), LBP-73 86-15, 23 NRC 595, 634 (1986), citina, 10 CFR 9 2.74f(a). In a (V construction permit proceeding, summary disposition may only be granted as to specific subordinate issues and may not be granted as to the ultimate issue of whether the pernit should be authorized, j 10 CFR 9 2.749(d). In an interesting approach seeking to avoid relitigation of matters considered in a prior proceeding concerning the same reactor, a Licensing Board invited motions for summary disposition which rely on the record of the prior proceeding. In re.iponse, the intervenor was expected to indicate why the prior record uas inadequate and why further proceedings might be necessary. The Licensing Board planned to take official notice of the record in the prior proceeding and render a decision as to whether further evidentiary hearings were necessary. General Electric Co. (GETR Vallecitos), LBP-85-4, 21 NRC 399, 408 (1985). If interveners present evidence or argument that directly and logically challenges the basis for summary disposition, creating a genuine issue of fact for resolution by the Board, then summary disposition cannot be granted. On the other hand, if interveners' facts are fully and satisfactorily explained by other parties, without any direct conflict of evidence, then interveners will have failed to show the presence of a genuine issue of material fact. However, after finishing the process of reviewing facts
,ew contained in the intervenor's response, the Board must also examine the motion to see whether the movant's unopposed findings i
(d) x DECEMBER 1986 HEARINGS 57
l i 9 3.5.1 of fact establish the basis for summary disposition. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-114, 16 NRC 1909, 1913 (1982). With the consent of the parties, the Board may adopt a somewhat more lenient standard for granting summary disposition than is provided under 10 CFR S 2.749. For example, the Board may grant summary disposition whenever it decides that it can arrive at a reasonable i decision without benefit of a hearing. That test would permit the Board to grant summary disposition under some circumstances in which it would otherwise be required to find that there is a genuine issue of fact requiring trial. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-25,19 NRC 1589,1591 (1984). 3.5.1 Use of Summary Disposition The Commission and Appeal Board have encouraged the use of summary disposition to resolve contentions where an intervenor has failed to establish that a genuine issue exists. Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982), citina, Northern States Epwer Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241, 242 (1973), aff'd sub nom. F_l
- v. AEC, 502 f.2d 424 (D.C. Cir. 1974); Houston Lichtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-San, 11 NRC 542, 550-551 (1980); Mississioni Power and l Liaht wo. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB- l 130, 6 AEC 423, 424-425 (1973). 3.5.1.1 Construction Permit hearings i While, as a general rule, summary disposition can be granted j in nearly any proceeding as to nearly any matter for which there is no genuine issue of material fact, there is an i exception under NRC Practice. In construction permit hearings, summary disposition may not be used to determine the ultimate issue as to whether the CP will be granted. 10 CFR 9 2.749(d). See Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), LBP-80-15, 11 NRC 765, 767 (1980). 3.5.1.2 Amendments to Existing Licenses Summary disposition may be used in license amendment proceed-ings where a hearing is held with respect to the amendment. Boston Edison Co. (Pilgrim Nuclear Station, Unit 1), ALAB-191, 7 AEC 417 (1974). See, e.a., Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), LBP-79-14, 9 NRC 557, 566-567 (1979); Florida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 NRC 300, 310 (1985). DECEMBER 1986 HEARINGS 58
s 3.5.2 V 3.5.2 Motions for Summary Disposition Under the Rules of Practice, 10 CFR Part 2, a motion for summary disposition should be granted if the Licensing Board determines, with respect to the question at issue, that there is no genuine istne as to any material fact and that the . moving party is
- Ltitled to a decision as a matter of law. l 10 CFR 9 2.749(d). ;
10 CFR s 2.749 permits a Board to deny summarily motions for summary disposition which occur shortly before a hearing where the motion would require the diversion of the parties' or the Board's resources from preparation for the hearing. The Recents of the University of California (UCLA Research l Reactor), LBP-82-93, 16 NRC 1391, 1393 (1982). I The Board may not dictate to any party the manner in which it presents its case. The Board may not substitute its judgment for the parties' on the merits of their case in order to summarily dismiss their motions, but it must deal with the motions on the merits before reaching a conclusion. IL0la Research Reactor, suora, 16 NRC at 1394, 1395. Under the NRC Rules of Practice, there is required to be em annexed to a motion for summary disposition a " separate, short and concise statement of the material facts as to which (V) the moving party conter.ds that there is no genuine issue to be heard." Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 520 (1982), citina, 10 CFR 9 2.749(a). Where such facts are properly presented and are not controverted, they are deemed to be admitted. La Crosse, suora, 16 NRC at 520; Lpna Island Liahtina Ct,. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, 26 NRC 201, 225 (1987), reconsid. denied, LBP-87-29, 26 NRC 302 (1987). See Florida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 NRC 300, 305 (1985). If there is any possibility that a litigable issue of fact exists or any doubt as to whether the parties should have been permitted or required to proceed further, the motion must be denied. General Electric Co. (GE Morris Operation Spent Fuel Storage Facility), LBP-82-14, 15 NRC 530, 532 (1982). As the Board rules on such a motion, all state-ments of material facts required to be served by the moving party must be deemed to be admitted, unless con-troverted by the statement required to be served by the opposing party. 10 CFR @ 2.749. Motions for summary disposition under Section 2.749 are analogous to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. To defeat a motion for summary dis-e ' position, an opposing party must present facts in an ( appropriate form. Conclusions of law and mere arguments are not sufficient. The asserted facts must be material MARCH 1988 HEARINGS 59 w_ --- _ --
l 6 3.5.2.1 and of a substantial nature, not fanciful or merely l suspicious. Where neither an answer opposing the motion nor a statement of material fact has been filed by an l intervenor, and where Staff and applicants have filed ) affidavits to show that no genuine issue exists, the motion l for summary judgment will not be defeated. Texas Utilities R Generatina ComPADy (Comanche Peak Steam Electric Station, l Units 1 and 2), LBP-82-17, 15 NRC 593, 595-96 (1982). A summary disposition decision that an allegation presents no 1 genuine issue of fact may preclude admission of a subsequent, I late-filed contention based on the same allegation. Consumers Power Co. (Big Rock Point Plant), LBP-82-19B,15 NRC 627, 631-G32 (1982). Answers to interrogatories can be used to counter evidentiary i material proffered in support of a motion for summary J disposition, but only if they are made on the basis of personal knowledge, over facts that would be admissible as evidence, and are made by a respondent competent to testify to , those facts. Public Service Co. of New Hampshire (Seabrook i Station, Units 1 and 2), LBP-83-32A, 17 NRC 1170, 1175 (1983). j i 3.5.2.1 Time For Filing Motions for Summary Disposition A motion for summary disposition shall be filed within such time as may be established by the presiding officer. 10 CFR s 2.749(a). While the rule on summary disposition does not l establish a fixed time for filing motions, leaving that to the presiding officer, it is customary to file such motions well after discovery has commenced. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-82-116, 16 NRC 1937, 1945 (1982). However, if the Licensing Board determines that there are not genuine issues of material fact, it may grant summary disposition even before discovery is otherwise completed if the party opposing the motion cannot identify what specific information it seeks to obtain through further discovery. , Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263, (1982), citina, 10 CFR 6 2.749(c); Fed. R. Civ. P. 56(f); Sec. & Exch. Comm'n v. Spence & Green Chemical Co., 612 F.2d 895, 901 (5th Cir. 1980), cert. denied, 449 U.S. 1082 (1981); Donofrio v. Camo, 470 F.2d 428, 431-432 (D.C. Cir. 1972). i A Licensing Board convened solely to rule on petitions to intervene lacks the jurisdiction to consider filings going to the merits of the controversy. Consequently, such a Board cannot entertain motions for summary dispo-sition. Pacific Gas & Electric Co. (Stanislaus Nuclear Project, Unit 1), ALAB-400, 5 NRC 1175, 1177-78 (1977). t DECEMBER 1986 HEARINGS 60
b ]v J 9 3.5.2.3 The filing of such motions must, therefore, await the appointment cf a hearing board. In Consumers Power Co. (Big Rock Point Plant), LBP-82-8, 15 j NRC 299, 336 (1982), the Board permitted late filing of affidavits in support of a motion for summary disposition where: (1) blizzard conditions and misunderstandings as to late filing requirements existed; (2) no serious delay in the proceedings resulted; and (3) the testimony and affidavits submitted were particularly helpful and directly relevant to the safety of the spent fuel pool amendment b( 19 sought. In the interest of expedition, a motion for summary disposi-tion may be filed at any time in the course of a proceeding. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1263 (1982), sitin_g,10 CFR
@ 2.749(a); 46 Fed. Rec. 30328, 30330, 30331 (June 8, 1981).
3.5.2.2 Time for Filing Response to Summary Disposition Motion The ambiguity in the provisions of 10 CFR 9 2.749, when considered in light of the requirements of 10 CFR 9 2.730, with regard to the time for filing responses to motions for p) { V summary disposition (igg Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), LBP-75-9, 1 NRC 243, 244 (1975)) has been removed by amendments to Section 2.749. Section 2.749(a), as amended, requires that responses to motions for summary disposition be filed within 20 days after service of the motion. But see Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-32, 22 NRC 434, 436 (1985) (the Licensing Board extended the time period for the Applicants' response to an inter-venor's motion for summary disposition where the Applicants, pursuant to a Management Plan to resolve design and quality assurance issues, were gathering information to establish the adequacy and safety of the plant). A party who seeks an extension of the time period for the filing of its response to a motion for summary disposition should not merely assert the existence of potential witnesses who might be persuaded to testify on its behalf. A party should provide some assurances that the potential witnesses will appear and will testify on pertinent matters. Georgig Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127, 143 (1987). 3.5.2.3 Contents of Motions / Responses (Summary Disposition) The general requirements as to contents of motions for summary disposition and responses thereto are set out in Q(~N 10 CFR 9 2.749. DECEMBER 1987 HEARINGS 61
I 5 3.5.2.3 A grant of summary disposition is proper where the pleadings and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." 10 CFR S 2.749(d). Florida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAB-660, 14 NRC 987, 1003 (1981), citina, , Viroinia Electric and Power Co. (North Anna Nuclear Power I Stati.on, Units 1 and 2), ALAB-584, 11 NRC 451 (1980); Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), LBP-85-27A, 22 NRC 207, 208 (1985); Florida Power and Liaht Co. (Turkey 3 Point Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 i NRC 300, 310 (1985); Houston Liahtina and Power Co. (South j Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 632 l (1986); Florida Power and Liaht Co. (Turkey Point Nuclear i Generating Plant, Units 3 and 4), LBP-86-27, 24 NRC 255, 261 (1986); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, 26 NRC 201, 212, 216 (1987), reconsid. denied, LBP-87-29, 26 NRC 302 (1987); Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-88-12, 27 NRC 495, 498, 506 (1988). All material facts set forth in the motion and not adequately controverted by the respop " are deemed to be admitted. 10 CFR s 2.749(a). .Clevelanu Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-3,17 NRC 59, 61 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, 26 NRC 201, 225 (1987), reconsid. denied, LBP-87-29, 26 NRC 302 (1987). A party opposing the motion may not rely on a simple denial of material facts stated by the movant but must set forth specific facts showing that there is a genuine issue. 10 CFR S 2.749(b); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 632-33 (1986); g eveland Electric l Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 93 (1986); Eublic Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-30, 24 NRC 437, 445 (1986); Lona Island liahtina Co. (Shoreham Nuclear , Power Station, Unit 1), LBP-87-26, 26 NRC 201, 212, 216 1 (1987), reconsid. denied, LBP-87-29, 26 NRC 302 (1587); Phila- { delphia Electric Co. (Limerick Generating Station, Unit 1), i LBP-88-12, 27 NRC 495, 498, 504-06 (1988). Where a party ! opposing the motion is unable to file affidavits in opposition in the time available, he may file an affidavit showing good reasons for his inability to make a timely response in which case the Board may refuse summary disposition or grant a continuance to permit proper affidavits to be prepared. 10 ! CFR 6 2.749(c). i I As to affidavits in support of a motion for a summary dis- ! position, a document submitted with a verified letter in which the attestation states that the person is " duly authorized to execute and file this information on behalf SEPTEMBER 1988 HEARINGS 62 l l
j J 1 y$ . a ilNy) 5 3.5.2.3L .{ of the applicants" is not sufficient to make the document. admissible into evidence pursuant to 6 2.749(b). An'affia davit must be submitted by a person to show he is compe-tent to testify to all matters discussed in the document. Cleveland Electric 111uminatina Cpt (Perry Nuclear Power
' Plant, l' nits 1 & 2),- ALAB-443, 6 NRC 741, 755 (1977).
Although 10 CFR 9 2.749(b) does not expressly require that the affidavit be based on a witness' personal knowledge of the material facts, a Board will require a. witness to testify from personal knowledge in order to establish' material facts which are legitimately in dispute. This requirement applies as well to expert witnesses who, although generally permitted to base their opinion testimony on hearsay, may only establish those material facts of which they have direct, personal knowledge. _ Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBD.86-12, 23 NRC 414, 418-419 (1986). Movant's papers which are insufficient to show an absence of an issue of fact, cannot premise a grant of summary judgment. Similarly, a response opposing a motion for summary judgment must have a statement of material facts. Mere allegations and denials will not suffice, but there must be a showing of genuine issues of fact. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-629, i 13 NRC 75, 78 (1981); Virainia Electric and Power Company (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584,11 NRC 451.(1980); Pennsylvania Power and Liaht Co. (Sus.1uehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC 335, 337 (1981); 10 CFR 6 2.749(b); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), LBP-85-27A, 22 NRC 207, 229, 231 (1985); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12, 23 NRC 414, 417 (1986). In that connection, it would frequently not be sufficient for an opponent to rely on quotations from or citations to published work of researchers who have apparently reached conclusions at variance with the movant's affiants. Carolina Power & Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant, Units 1 and 2), LBP 7, 19 NRC 432, 436 (1984), reconsid. den. on other arounds, LBP-84-15, 19 NRC 837, 838 (1984). Answers to interrogatories can be used to counter evidentiary material proffered in support of a motion for summary disposition, but only if they are made on the basis of personal knowledge, over facts that would be admissible as evidence, and are made by a respondent competent to testify to those facts. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-32A, 17 NRC 1170, 1175 (1983). SEPTEMBER 1988 HEARINGS 63 4
y [ , L l 5 3.5.3 i
)
3.5.3 Sumusary Disposition Rules ) By and large, the rules and standards established by the courts for granting or denying a motion for summary judg-ment under Rule 56 of the Federal Rules of Civil Procedure will be applied by Licensing Boards in their consideration of motions for summary disposition under 10 CFR 5 2.749. Alabama Power Co. (Joseph M. FIrley Nuclear Plant, Units 1 & 2), ALAB-182, 7 AEC 210, 217 (1974). Based on judicial interpretations of Rule 56, the burden of proof with respect to summary disposition is upon the movant who must demonstrate the absence of any genuine issue of material fact. J. Moore, Federal Practice, Vol. 6, Ch. 56, para. 56.15(3) (2nd ed.1966); Dairvland Power Cooperative (La Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982), citina, Adickes v. Kress and Co., 398 U.S. 144, 157 (1970); [pmmonwealth.. Edison Co. (Braidwood Nuclear Power Station, Units 1 ana 2), LBP-86-12, 23 NRC 414, 417 (1986), , Houston Liahtina and Power Co. (South Texas Project, Units 1 l and 2), LBP-86-15, 23 NRC 595, 632 (1986); Public Service Co. , of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-30, l 24 NRC 437, 445 (1986). Thus, if a novant fails to make the requisite showing, its motion may be denied even in the absence of any response by the proponent of a contention. 1,1 Crosse, supra, 16 NRC at 519. See Carolina Power & Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant, Units 1 and 2), LBP-84-7,19 NRC 432, 435 (1984), reconsid. den, on other arounds, LBP-84-15, 19 NRC 837, 838 (1984). l Nonetheless, where a proponent of a contention fails to I respond to a motion for summary disposition, it does so at its own risk; for, if a contention is to remain i litigable, there must at least be presented to the Board l a sufficient factual basis "to require reasonable minds , to inquire further." La Crosse, supra, 16 NRC at 519-20, l citina, Pennsylvania Power and Licht Co. and Alleaheny ' Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 340 (1980); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1325 n.3 (1983). To meet this burden, the movant must elimi-nate any real doubt as to the existence of any genuine issue of material fact. Poller v. Columbia Broadcasting Co.. Inc., 368 U.S. 464 (1962); Sartor v. Arkansas Natural Gas Coro., 321 U.S. 620, 627 (1954); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), LBP-81-48, 14 NRC 877, 883 (1981). The record and affi-davits supporting and opposing the motion must be viewed in the light most favorable to the party opposing the motion. Sea Public Service Co. of New Hampshire (Seabrook l Station, Units 1 & 2), LBP-74-36, 7 AEC 877 (1974) and 1 SEPTEMBER 1988 HEARINGS 64 l 1
l 3 6 3.5.3
- 1 1 d cases cited therein at pp. 878-879. Dairvland Power Co- I operativa (La Crosse Boiling Water Reactor), LBP-82-58, l 16 NRC 512, 519 (1982), citina, Poller v. Columbia Broad- '
castina System. Inc., 368 U.S. 464, 473 (1962); Crest Auto 1 Sucolies. Inc. v. Ero Manufacturing Co., 350 F.2d 896, 899 (7th Cir.1966); United Mine Workers of America. Dist. 22 v. Roncco, 314 F.2d 186,188 (10th Cir.1963); Pennsylvania Power and Licht Co. and Alleohenv Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC 335, 337 (1981); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), LBP-85-27A, 22 NRC 207, 208 (1985); Florida Power and Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 NRC 300, 310 (1985); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12, 23 NRC 414, 417 (1986); Housto_n Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 632 (1986). The opposing party need not show that he would prevail on the issues but only that there are genuine issues to be tried. American Manufacturers l Mut. Ins. Co. v. American Broadcasting - Paramount Theaters. l Inc., 388 F.2d 272, 280 (2d Cir. 1967); Commonwealth Edison [o_,_ o (Braidwood Nuclear Power Station, Units 1 and 2), LBP 12, 23 NRC 414, 418 (1986). The fact that the party opposing summary disposition failed to submit evidence controverting (Q'v j the disposition does not mean that the motion must be granted. The proponent of the motion must still meet his burden of proof to establish the absence of a genuine issue of material i fact. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 753-54 (1977); Pennsylvania Power and Liaht Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC 335, 337 (1981); Carolina Power and Light Co. and North Carolina Eastern Municioal Power Acency (Shearon Harris Nuclear Power Plant), LBP-85-27A, 22 NRC 207, 208 (1985); Florida Power and Licht fo . (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 NRC 300, 310 (1985); Houston Liahtina and Power o [_o_,_ (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 633 (1986). Even if no party opposes a motion for summary disposition, the movant's filings must still establish the absence of a genuine issue of material fact. 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. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-3,17 NRC 59, 62 (1983). The regulations do not require merely the showing of a
" material issue of fact" or an " issue of fact." They require
[')N y^ a genuine issue of material fact. To be genuine, the factual record, considered in its entirety, must be enough in doubt so SEPTEMBER 1988 HEARINGS 65
$ 3.5.3 !
that there is a reason to hold.a hearing to resolve the issue. Cleveland Electric 111uminatina Co. (Perry Nuclear Power ; Plant, Units 1 and 2), LBP-83-46, 18 NRC 218, 223 (1983). 1 Where the existing record is insufficient to allow summary 4 disposition, it is not improper for a Licensing Board to 1 request submission of additional documents which it knows ! would support summary disposition and to consider such q documents in reaching a decision on a summary disposition l motion. Cleveland Electric Illuminating Co. (Perry Nuclear j Power Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 752 (1977). I When sumnary disposition is requested before discovery is completed, the Board may deny the request either upon a showing of the existence of a genuine issue of material fact or upon a showing that there is good reason for the Board to I defer judgment until after specific discovery requests are j made ai.d answered. Wisconsin Electric Power Co. (Point Beach j Nuclear Plant, Units 1 and 2), LBP-81-55,14 NRC 1017,1021 l (1981). l The limitation on summary disposition in a construction permit proceeding does not apply in a construction permit I amendmeqt proceeding. Summary disposition may be granted in a CP amendment proceeding rhere there is no genuine issue as to l any material fact that warrants a hearing and the moving party i is entitled to a decision in its favor as a matter of law. Washinaton Public Power Sunolv System (WPPSS Nuclear Project No. 1), ALAB-771, 19 NRC 1183, 1188 and n.14 (1984). In an operating license proceeding, where significant health and safety or environmental issues are involved, a Licensing Board should grant a motion for summary disposition only if it is convinced from the material filed that the public health and safety or the environment will be satisfactorily pro-tected. Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), LBP-81-2,13 NRC 36, 40-41 (1981), citina, j Cleveland Electric Illuminating Co. t, Perry Nuclear Power : Plant, Units 1 and 2), ALAB-443, 6 NRC 741 (1977); 10 CFR s 2.760a; Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP 86-15, 23 NRC 595, 633 (1986). In an operating license proceeding, summary dis' position on safety issues should not be considered or granted until after ! the Staff's Safety Evaluation Report and the ACRS letter have been issued. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), LBP-77-20, 5 NRC 680, 681 (1977). l An answer filed in response to a summary disposition mo-tion, in support of the motion, was not considered by the Licensing Board because 10 CFR @ 2.749 provided only for I answers " opposing the motion." Public Service Electric ' and Gas Co. (Salem Nuclear Generating Station, Unit 1), SEPTEMBER 1988 HEARINGS 66
'T 6 3.5.4
(- LBP-79-14, 9 NRC 557 (1979). Subsequently, the holding in Salem, suora, was rendered invalid by a change to 10 CFR 9 2.749(a) which specifically permits responses in support of, as well as in opposition to, motions for sumary disposition. 45 Fed. Rea. 68919 (Oct. 17, 1980). In responding to a statement filed in support of a motion for summary disposition, a party who opposes the motion may only address new facts and arguments presented in the statement. The party may not raise additional arguments beyond the scope ! of the statement. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-30, 24 NRC 437, 439 n.1 (1986). When a proper showing for summary disposition has been made by the movant, the party opposing the motion must aver specific facts in rebuttal. Where the movant has satisfied his initial burden and has supported his motion by affidavit, the opposing party must proffer countering evidential material or an affidavit explaining why it is impractical to do so. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-32A, 17 NRC 1170, 1174 n.4 (1983). A movant for summary disposition is generally prohibited from filing a reply to another party's answer to the motion. 10 i (A) CFR 9 2.749(a). However, pursuant to its general authority I v under 10 CFR 9 2.718(e), a Licensing Board may lift the prohibition if the movant can establish a compelling reason or need to file a reply. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26, 26 NRC 201, 204 l (1987), reconsid. denied, LBP-87-29, 26 NRC 302 (1987). l In the summary disposition area, health effects contentions have been differentiated from other contentions. An opponent of summary disposition in the health effects area must have some new (post-1975) and substantial evidence that casts doubt on the BEIR estimates. Furthermore, he must be prepared to present that evidence through qualified witnesses at the hearing. Carolina Power & Liaht Co. and North Carolina ! Eastern Municipal Power Agm (Shearon Harris Nuclear Plant, Units 1 and 2), LBP-84-7, 19 NRC 432, 437 (1984), reconsid. h, LBP-84-15,19 NRC 837, 838 (1984), citina, Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), CLI-80-31, 12 NRC 264, 277 (1980). 3.5.4 Content of Semmary Disposition Order In granting summary judgment, the Licensing Board should set forth the legal and factual bases for its action. Where it has not, the Appeal Board will examine the record and see if f'/ x
'~'
s there are any genuine issues. Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 453 n.4 (1980). SEPTEMBER 1988 HEARINGS 67 l l _ _ _ _ . ._-_-_-_-__---__-_- - ___ - -
l L l 6 3.5.5 3.5.5 Appeals from Rulings on Summary Disposition As is the case under Rule 56 of the Federal Rules, a denial of a motion for summary disposition is interlocutory and, therefore, not appealable. Louisiana Power & Liaht Co. (Waterford Steam Electric Generating Station, Unit 3), ALAB-220, 8 AEC 93 (1974); Florida Power and Liaht Co. (Turkey j Point Nuclear Generating Plant, Units 3 and 4), LBP-85-29, 22 NRC 300, 331 (1985). This applies as well to denials of partial summary disposition. Waterford, cited in Pennsylvania Power and Liaht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550, 551 (1981). An order granting summary disposition of an intervenor's sole conten-tion is not interlocutory since the consequence is inter-venor's dismissal from the proceeding. As such, it is immediately appealable. Houston Liahtina and Power Co. l (Allens Creek Nuclear Generating Station, Unit 1), ALAB-629, 13 NRC 75, 77 n.2 (1981). An order summarily dismissing some, but not all, of an intervenor's contentions which does , not have the effect af dismissing the intervenor from the I proceeding is interlocutory in nature and an appeal must await the issuance of an initial decision. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-736, 18 NRC 165 (1983); tLetropolitan Edison Co. (Three ! Mile Island Nuclear Station, Unit 1), ALAB-807, 21 NRC 1195, 1198 n.3 (1985); Turkey Point, supra, 22 NRC at 331. Where a Licensing Board has not set forth the legal and factual basis for its action on a summary judgment motion, the Appeal Board will examine the record to see if there are any genuine issues. Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-584, 11 NRC 451, 453 n.4 (1980). 3.6 Attendance at and Participation in Hearinas An intervenor may not step in and out of participation in a par-ticular issue at will. Northern States Power Co. (Prairie Island ' Nuclear Generating Plant, Units 1 & 2), ALAB-288, 2 NRC 390, 393 (1975). According to one Licensing Board, an intervenor who raises an issue and then refuses to actively participate in the hearing may lose his right to appeal the Licensing Board's decision. Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-76-7, 3 NRC 156 (1976). See e Georaia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-851, 24 NRC 529, 530 (1986), gitina, Consumers Power Co. (Midland Plant, ; Units 1 and 2), ALAB-691, 16 NRC 897, 907 (1982), review declined, CLI-83-2, 17 NRC 69 (1983). A party's total failure to assume a significant participational role in a proceeding (e a., his failure to appear at hearings and to file proposed findings), at least in combination with other factors militating against his being retained as a party, will, upon motion of another DECEMBEP. 1987 HEARINGS 68
l l O
\
5 3.6 I party, result in his dismissal from the proceeding. Gulf States i Utilities Co. (River Bend Station, Units 1 & 2), ALAB-358, 4 NRC 1 558, 560 (1976). 4 i If an intervenor " walks out" of a hearing, it is nevertheless proper for the Licensing Board to proceed in his absence. Northern Indiana 1 Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 251 (1975); 10 CFR 9 2.707(b). The best practice in such a situation is for the Board to make thorough inquiry as to the issues raised by the absent intervenor despite his absence. Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-242, 8 AEC 847, 849 (1974). A party who was dismissed from a proceeding for failing to respond, without good cause, to Board orders reactivating the proceeding, must satisfy the criteria for untimely petitions to intervene in order to be readmitted. General Electric Co. (GETR Vallecitos), LBP-84-54, 20 NRC 1637, 1642-1643 (1984). A party seeking to be excused from participation in a prehearing conference should present its justification in a request presented before the date of the conference. Eyblic Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-488, 8 NRC 187, 191 (1978). El The appropriate sanction for willful refusal to attend a prehearing conference is dismissal of the petition for intervention. In the alternative, an appropriate sanction is the acceptance of the truth of all statements made by the applicant or the Staff at the prehear-ing conference. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), LBP-82-108, 16 NRC 1811, 1817 (1982). Where an intervenor indicates its intention not to participate in the evidentiary hearing, the intervenor may be held in default and its admitted contentions dismissed although the Licensing Board will review those contentions to assure that ; hey do not raise serious matters that must be considered. Boston Edisort Co. (Pilgrim Nuclear Generating Station, Unit 2), LBP-76-7, 3 NRC 156, 157 (1976). Where an issue is remanded to t% Licensing Board and a party did not previously participate in consideration of that issue, submitting no contentions, evidence or proposei findings on it and taking no exceptions to the Licensing Board's disposition of it, the Licensing Board is fully justified in excluding that party from participation in the remanded hearing on that issue. Status as a party does not carry with it a license to step in and out of consideration of issues at will. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 268-69 (1978). A participant in an NRC proceeding should anticipate having to (pj manipulate its resources, however limited, to meet its obligations. DECEM8ER 1987 HEARINGS 69
, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719, 17 NRC 387, 394 (1983), citina, Wisconsin Electric Power A (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666,15 NRC 277, 279 (1982); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-566, 10 NRC 527, 530 (1979); Geners]. i Public Utilities Nuclear Coro. (Three Mile Island Nuclear Station, , Unit 1), LBP-86-14, 23 NRC 553, 559 (1986). ! 3.7 Burden and Means of Proof A licensee generally bears the ultimate burden of proof. Metro- ) politan Edison Co. (1hree Mile Island Nuclear Station, Unit 1), ALAB-697, 16 NRC 1265, 1271 (1982), citing, 10 CFR 9 2.732. But inter-venors must give some basis for further inquiry. Three Mile Island, i supra, 16 NRC at 1271. The ultimate burden of proof in a licensing proceeding on the i question of whether a permit or license should be issued is upon the applicant. But where one of the other parties to the proceeding contends that, for a specific reason the permit or license should be denied, that party has the burden of going forward with evidence to I buttress that contention. Once the party has introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant, which as part of its overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license. ) Louisiana Power and _ licht Co. (Waterford Steau Electric Station, i Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983), gitina, Consumers Power i A (Midland Plant, Units I and 2), Alt,B-123, 6 AEC 331, 345 (1973); l Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 56 (1985). See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-315, 3 NRC 101,103 (1976). Where the Licensing Board directed an intervenor to proceed with its case first because of the intervenor's failure to comply with certain discovery requests and Board orders, the alteration in the order of presentation did not shift the burden of proof. That burden has been and remains on the licensee. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1245 (1984), rev'd in oart on other arounds, CLI-85-2, 21 NRC 282 (1985). Under Commission practice, the applicant for a construction permit or operating license always has the ultimate burden of proof. 10 CFR 6 2.732. The degree to which he must persuade the board (burden of persuasion) should depend upon the gravity of the matters in controversy. Virainia Electric & Power Company (North Anna Power Station, Units 1, 2, 3 & 4), ALAB-256, 1 NRC 10, 17, n.18 (1975). , l An applicant has the burden of proof to demonstrate that the l off-site emergency plan complies with Commission rules and l guidance. The burden must be carried whether or not the appli- , cant is primarily responsible for carrying out a particular aspect DECEMBER 1987 HEARINGS 70 t___________-___
l l 9 3.7.1 of the plan. Consumers Pcwer Co. (Big Rock Point Plant), LBP-82-77, 1 16 NRC 1096, 1099 (1982), citina, 10 CFR 9 2.732. An applicant has the burden of proving, prior to the issuance of a full-power license, that there is reasonable assurance that adequate protective measures can and will be taken in an emergency. Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 518 (1986), citina, 10 CFR 9 50.47(a)(1). However, an applicant is not required to prove and reprove essentially unchallenged factual elements of its case. An intervenor may not merely assert a need for more current information without having raised any questions concerning the accuracy of the applicant's submitted facts. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-857, 25 NRC 7, 13 (1987). There is some authority to the effect that in show cause proceedings for modification of a construction permit, the burden of going forward is on the Staff or intervenor who is seeking the modification since such party is the " proponent of an order." Consumers Power Company (Hidland Plant, Units 1 & 2), LBP-74-54, 8 AEC 112 (1974). With respect to motions, the moving party has the burden of proving that the motion should be granted and he must present information tending to show that allegations in support of his motion are true. O Consolidated Edison Co. of N.Y.. Inc. (Indian Point Station, Units 1, 2 & 3), CLI-77-2, 5 NRC 13 (1977). The general rule that the applicant carries the burden of proof does not apply with regard to alternate site considerations. For alter-nate sites, the burden of proof is on the Staff and the applicant's evidence in this regard cannot substitute for an inadequate analysis ' by the Staff. Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-479, 7 NRC 774, 794 (1978). The applicant carries the burden of proof on safety issues. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1048 (1983), c_itina, Consumerr Power Co. (Midland Plant, Units 1 and 2), ALAB-283, 2 NRC 11, 17 (1975). ( 1 An applicant who challenges the Staff's denial of his application for l an operator's license has the burden of proving that the Staff 1 incorrectly graded or administered the operator examination. If the l applicant establishes a prima facie case that the Staff acted incorrectly, then the burden of going forward with evidence shifts to the Staff. Alfred J. Forabito (Senior Operator License for Beaver Valley Power Station, Unit 1), LBP-87-23, 26 NRC 81, 84 (1987). j I 3.7.1 Duties of Applicant / Licensee A licensee of a nuclear power plant has a great respon-sibility to the public, one that is increased by the l DECEMBER 1987 HEARINGS 71
n 4 l 5 3.7.2 Commission's heavy dependence on the licensee for accurate and i timely information about the facility and its operation.
$ttropolitan Edison Co. (Three Mile Island Nuclear Station, !
Unit 1), ALAB-772, 19 NRC 1193, 1208 (1984), rev'd in oart on { other arounds, CLI-85-2, 21 NRC 282 (1985); Louisiana Power l and Liaht Co. (Waterford Steam Electric Station, Unit 3), l ALAB-812, 22 NRC 5, 48, 51 (1985). j The NRC is dependent upon all of its licensees for accurate and timely information. The Licensee must have a detailed knowledge of the quality of installed plant equipment. Petition for Emeroency and Remedial Action, CLI-80-21, 11 NRC 707, 712 (1980); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 910 (1982), citina, Petition for j Emeroency and Remedial Action, CLI-78-6, 7 NRC 400, 418 ' (1978); Tennessee Vallev AuthRtitX (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677,15 NRC 1387 (1982). In general, if a party has doubts about whether to dirclose information, it should do so, as the ultimate decision with regard to materiality is for the decisionmaker, not the parties. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 914 (1982). The ultimate burden of persuasion rests with applicant and with NRC Staff to extent Staff supports the applicant's position. Parties saddled with this burden typically proceed first and then have the right to rebut the case presented by their adversaries. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-566, 10 NRC 527, 529 (1979). 3.7.2 Intervenor's Contentions - Burden and Means of Proof It has long been held that an intervenor has the burden of going forward, either by direct evidence or by cross-examination, as to issues raised by his contentions. Philadelphia Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1008, reconsid. den., ALAB-166, 6 AEC 1148 (1973), remanded on other ands., CLI-74-2, 7 AEC 2, aff'd, ALAB-175, 7 AEC 62 (1974); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 345 (1973); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 NRC 586, 589 (1983). Where an intervenor raises a particular contention challenging a licensee's ability to operate a nuclear power plant in a safe manner, the intervenor necessarily assumes the burden of going forward with the evidence to support that contention. Metronglitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, DECEMBER 1987 HEARINGS 72
j (3 9 3.7.2 1 i V 19 NRC 1193, 1245 (1984), rev'd in oart on other arounds, CLI-85-2, 21 NRC 282 (1985). An intervenor must come forward with sufficient evidence to require reasonable minds to inquire further, and it has an obligation to reveal pursuant to a discovery request what the evidence is. That requirement is not obviated by an inter-venor's strategic choice to make its case through cross-examination.. Seabrook, supra, 17 NRC at $89.
- This requirement has, on occasion, been questioned by the f courts in those situations in which the information is in
} the hands of the Staff and/or applicant. Egg, LL.,19th l Committee for a Safe Environment v. NRC, 527 F.2d 812 at n.12 (D.C. Cir. 1975). The scope of the " burden of going forward" rule has also been questioned by the courts. In Aeschliman v. NRC, 547 F.2d 622, 628 (D.C. Cir,1976), the Court of Appeals indicated that an fntervenor, in commenting on a draft EIS, need only bring sufficient attention to an issue "to stimulate the Commis-sion's consideration of it" in order to trigger a requirement that the NRC consider whether the issue should receive detailed treatment in an EIS. The court stated that this test 77 does not support the imposition of the burden of an affirma-i V) tive evidentiary showing. & at n.13. Aeschliman was reversed in this regard by the U.S. Supreme Court in Vermont Yankee Nuclear Power Coro. v. N.R.D.C., 435 U.S. 519 (1978). l Therein, the Court held that it is " incumbent upon interveners who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the interveners' position and contentions." & at 553. The Court found that the NRC's use of "a threshold test," requiring interveners to make a " showing sufficient to require l reasonable minds to inquire further," was well within the agency's discretion, & at 554. See also Pennsylvania Power and Licht Co. and Alleaheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 957 (1982), citina, Vermont Yankee Nuclear Power Coro. v. Natural Resources Defense Council. Inc., 435 U.S. 519, 553 (1978). While the outlines of an intervenor's burdens with respect to its contentions may not be fully defined at this point, it is clear that the Commission's rules do not preclude an inter-venor from building its case defensively, on the basis of crost-examination. Tennesee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A,1B & 2B), ALAB-463, 7 NRC 341, 356 (1978); [pmmonwealth Edison Co. (Zion Station, Units 1
& 2), ALAB-226, 8 AEC 381, 389 (1974); Hisconsin Electric
/D Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-137, 6
() AEC 491, 504-505 (1973). DECEMBER 1987 HEARINGS 73
9 3.7.3 ' The " threshold test," restored by the Supreme Court in Vermont Yankee Nuclear Power Coro. v. N.R.D.C., 435 U.S. 519 (1978), goes only to the matter of the showing necessary to initiate an inquiry into a specific alternative which an intervenor (or prospective intervenor) thinks should be explored, and not to the placement of the burden of proof once such an inquiry actually has. been undertaken in an adjudica-tory context. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 489 n.8 (1978). In Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-10, 15 NRC 341, 344 (1982), the Board required interveners to file a Motion Concerning Litigable Issues, by which the burden of going forward on summary disposition (but not the burden of proof) was placed on the interveners. However, applicant and Staff would have to respond and interveners reply. Thereafter, the standard for summary disposition would be the same as required under the rules. This special procedure was appropriate because time pressures had caused the Board to apply a lax standard for admission of contentions, depriving applicants of full notice of the contentions in the proceeding, and because applicants had already shown substantial grounds for summary disposition of ail contentions in the course of a hearing that had j already been completed. The Motion for Litigable Issues was intended to parallel the Motion for Summary Disposition in all i but one respect--that intervenor was required to file first l and to come forward with evidence indicating the existence of J genuine issues of fact before applicant had to file a summary disposition motion. Applicant retained the burden of proof demonstrating the absence of genuine issues of fact, just as it would if it had originated the summary disposition process by its own motion. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-88,16 NRC 1335,1339 (1982). 1 3.7.3 Specific Issues - Means of Proof 3.7.3.1 Exclusion Area Controls
)
The applicant must demonstrate constant total control of the entire exclusion area except for roads and waterways. As to those, only a showing of post-accident control is necessary. l Southern California Edison Co (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-268, 1 NRC 383, 393-395 (1975). i Note also that in certain situations there may be very narrow i l stretches of land (e.a., a narrow strand of beach below the mean high tide line) the lack of total control of which might readily be viewed as de minimus. Where such a de minimus situation exists, strict application of the constant total control requirements may be inappropriate. J_d d2 at 394-395. DECEMBER 1987 HEARINGS 74
t 7] 5 3.7.3.2
' 1 '"
, A./ : 3.7.3.2 Need for Facilityi u NEPA implicitly requires that a proposed facility-exhibit some benefit to justify its construction or licensing. In the case of a nuclear power plant, the plant arguably has no-benefit unless it is needed. Thus, a showing of need for the facility is apparently required to justify the licensing thereof. This need can be demonstrated either by a showing that there is a need for additional generating capacity to produce needed power or by a showing that the nuclear plant is needed as a substitute for plants that burn fossil fuels that are in short supply. Niaaara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347,- 353-354 (1975). . See also Kansas Gas and Electric Comoany (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 327 (1978). A plant may.also be justified on-the basis that it is needed to replace scarce natural gas as an ultimate energy resource ("i.e., to satisfy residential and business energy require-ments now being directly met by natural gas"). Wolf Creek, 7 NRC at 327. In evaluating a utility's load forecast, "the most that can be required is that the forecast be a reasonable one in the light of what is ascertainable at the time made." Wolf Creek, 7 NRC at 328. Because of the uncertainty involved in predicting future demand and the serious consequences of p not having generating capacity available when needed, an ( isolated forecast which is appreciably lower than all others
' in the record may be accepted only if the Board finds that the isolated ground." Wolf Creek, 7 NRC at 332.
Prior to recent rule changes precluding the consideration of need for power in operating license adjudications, it was held that a change in the need for power at the operating license stage must be sufficiently extensive to offset the environmen- ! tal and economic costs of construction before it may be raised as a viable contention. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-35,14 NRC 682, 684 (1981). Under the recent rule changes, need for power now may be litigated in operating license proceedings only if it is shewn, pursuant to 10 CFR S 2.758, that special circumstances warrant waiver of the rules prohibiting litigation of need for power. Georaia Power Co. (Vogtle Nuclear Plant, Units 1 and 2), LBP-84-35, 20 NRC 887, 889-890 (1984), citina, 10 CFR s 51.53(c); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 84 (1985). The substitution theory, whereby the need for a nuclear power facility is based on the need to substitute nuclear-generated power for that produced using fossil fuels, has been upheld as
. providing an adequate basis on which to establish need for the
[,T facility. New Enaland Coalition on Nuclear Pollution v. NRC, (/ 582 F.2d 87, 97-98 (1st Cir. 1978). DECEMBER 1987 HEARINGS 75
I 9 3.7.3.3 i Considerable weight should be accorded the electrical demand ; forecast of a State utilities commission that is responsible by law for providing current analyses of probable electrical . demand growth and which has conducted public hearings on the I subject. A party may have the opportunity to challenge the ) analysis of such commission. Nevertheless, where the evidence l does not show that such analysis is seriou;1y defective or , rests on a fatally flawed foundation, no abdication of NRC 1 responsibilities under NEPA results from according conclusive I effect to such a forecast. Carolina Power & Liaht Co. 1 (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-490, l 8 NRC 234, 240-241 (1978). I The U.S. Supreme Court has noted that there is little doubt that under the Atomic Energy Act of 1954 (AEA), State public i utility commissions or similar bodies are empowered to make . the initial decision regarding the need for power. Vermont I Yankee Nuclear Power Corp. v. Natural Resources Defense 1 Council, 435 U.S. 519 (1978). But this Commission's responsi- l bilities regarding need for power have their primary roots in NEPA rather than the AEA. NEPA does not foreclose the , placement of heavy reliance on the judgment of local regula- l tory bodies charged with the duty of insuring that the ! utilities within their jurisdiction fulfill the legal j obligations to meet customer demands. Rochester Gas and Electric Corporation (Sterling Power Project, Nuclear Unit No. 1), ALAB-502, 8 NRC 383, 388-389 (1978). 3.7.3.3 Burden and Means of Proof in Interim Licensing Suspension Cases Scveral cases have set forth the requirements as to burden of 3 proof and burden of going forward in interim licensing l suspension cases. These rulings were promulgated in the ! context of the Commission's General Statement of Policy on the i Uranium Fuel Cycle (41 Fed. Rea. 34707, Aug.16,1976) but j presumably would be applicable in similar contexts that may J arise in the future. J In a motion by interveners for suspension of a construc-tion permit in such a situation, the applicant for the ) CP has the burden of proof. Public Service _Co. of New i Hampshire (Seabrook Station, Units 1 & 2), ALAB-349, 4 j NRC 235 (1976); Union Electric Co. (Callaway Plant, : Units 1 & 2), ALAB-346, 4 NRC 214 (1976). An applicant I faced with such a motion stands in jeopardy of having the motion summarily granted where he does not make an evidentiary showing or even address the relevant factors , bearing on the propriety of suspension in his response I to the motion. 1 The applicant also has the burden of j going forward with evidence. Union Electric Co. (Callaway DECEMBER 1987 HEARINGS 76
-_ -- l
6 3.7.3.5.1 Plant, Units 1 & 2), ALAB-348, 4 NRC 225 (1976). This burden of going forward is not triggered by a motion to suspend a CP which fails to state any reason which might support the grant of the motion. 1 On the other hand, the Board's duty to entertain the motion and the applicant's duty to go forward is triggered where the motion contains supporting reasons
" sufficient to require reasonable minds to inquire further."
1 3.7.3.4 Availability of Uranium Supply In considering the extent of uranium resources, a Board should not restrict itself to established resources which have already been discovered and evaluated in terms of economic feasibility but should consider, in addition,
" probable" uranium resources which will likely be available over the next 40 years. The Board should also consider the total number of reactors " currently in operation, under construction, and on order" rather than the number reasonably expected to be operational in the time period under considera-tion since future reactors will not be licensed unless there is sufficient fuel for them as well as previously licensed reactors. Kansas Gas and Electric Company (Wolf Creek n Generating Station, Unit 1), ALAB-462, 7 NRC 320, 323-25 (1978). See also Gulf States Utilities Co. (River Bend
, ('v) Station, Units 1 & 2), ALAB-444, 6 NRC 760 (1977) and ALAB-317, 3 NRC 175 (1976). In order to establish the availability of an uranium supply, a construction permit applicant need not demonstrate that it has a long-term contract for fuel. Union Electric Co. (Callaway Plant, Units 1 & 2), ALAB-347, 4 NRC 216, 222 (1976). 3.7.3.5 Environmental Costs I (RESERVED) 3.7.3.5.1 Cost of Withdrawing Farmland from Production The environmental cost of withdrawing farmland is " deemed to l be the costs of the generation (if necessary) of an equal amount of production on other land." Kansas Gas and Electric l Comoany (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 I NRC 320, 335 (1978). The Appeal Board has specifically rejected the analytical approach in which the lost produc-tivity is compared to available national cropland resources as "an ' empty ritual' with a predetermined result" since this i approach will always lead to the conclusion that withdrawal will have an insignificant impact. & (See also 6.15.6.1.1)
/~~N Q jl I
DECEMBER 1987 HEARINGS 77 1
l 6 3.7.3.6 3.7.3.6 Alternate Sites Under NEPA To establish. that no suggested alternative site is "obviously superior" to the proposed site, there must be either (1) an adequate evidentiary showing that the alternative sites should be generically rejected or (2) sufficient evidence for informed comparisons between the proposed site and individual alternatives. Public Service Company of New Hamoshire (Sea-brook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498 (1978). 3.7.3.7 Management Capability Under the Atomic Energy Act, the Commission is authorized to l consider a licensee's character or integrity in deciding whether to continue or revoke its operating license. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1207 (1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). A licensee's ethics and technical proficiency are both legitimate areas of inquiry insofar as consideration of the licensee's overall management competence is at issue. Three Mile Island, supra, 1 19 NRC at 1227. l Candor is an especially important element of management character because of the Commission's heavy dependence on an i applicant or licensee to provide accurate and timely informa- l tion about its facility. Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 48, 51 (1985), citina, Three Mile Island, supra, 19 NRC at 1208. Another measure of the overall competence and character of an applicant or licensee is the extent to which the company management is willing to implement its quality assurance program. Waterford, supra, 22 NRC at 15 n.5, citina, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-106, 6 AEC 182, 184 (1973). A Board may properly consider a company's efforts to remedy any construction and related QA deficiencies. Ignoring such remedial efforts would discourage i companies from promptly undertaking such corrective measures. Waterford, supra, 22 NRC at 15, 53 n.64, citina, Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 371-74 (1985). Areas of inquiry to determine if a utility is capable of operating a facility are outlined in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), CLI-80-5,11 NRC 408 (1980); Carolina Power and Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18 (1980), reconsidered, ALAB-581, 11 NRC 233 (1980), modified, CLI-80-12, 11 NRC 514 (1980); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-84-13, 19 NRC 659 (1984). DECEMBER 1987 HEARINGS 78
_ 6 3.8 ( )-
~
False statements, if proved, could signify lack of management character sufficient to preclude an award of an operating-license, at least as long as responsible individuals retained any responsibilities for the project. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-84-20,19 NRC 1285,1297 (1984), citina, Houston Liahtino and Power Co. (South Texas Project, Units 1 and 2), LBP-84-13, 19 NRC 659, 674-75 (1984), and Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-83-2, 17 NRC 69, 70 (1983). The generally applicable standard for licensee character and integrity is whether there is reasonable assurance that the licensee has the character to operate the facility in a manner consistent with the public health and safety and NRC require-ments. To decide that issue, the Commission may consider evidence of licensee behavior having a rational connection to safe operation of the facility and some reasonable relation-ship to licensee's candor, truthfulness, and willingness to abide by regulatory requirements and accept responsibility to protect public health and safety. In this regard, the Commission can rest its decision on evidence that past inadequacies have been corrected and that current licensee management has the requisite character. Metropolitan Edison CA (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118, 1136-37 (1985). C 3.8 Burden pf Persuasion (Decree of Proof) For an applicant to prevail on each factual issue, its position must be supported by a preponderance of the evidence. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-763, 19 NRC 571, 577 (1984), review declined, CLI-84-14, 20 NRC 285 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2). ALAB-819, 22 NRC 681, 720 (1985). See Tennessee y_allev Authority (Hartsville Nuclear Plant, Units lA, 2A, IB, and 28), ALAB-463, 7 NRC 341, 360 (1978), reconsideration denied, ALAB-467, 7 NRC 459 (1978); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 405 n.19 (1976). The burden of persuasion (degree to which a party must convince the , Board) should be influenced by the " gravity" of the matter in controversy. Vircinia Electric & Power Co. (North Anna Power Station, Units 1, 2, 3 & 4), ALAB-256, 1 NRC 10, 17 n.18 (1975). A Licensing Board has utilized the clear and convincing evidence standard with regard to findings concerning the falsification and manipulation of test results by a licensee's personnel because such findings could result in serious injuries to the reputations of the individuals involved. The Board also believed that a more stringent evidentiary standard was justified where the events in A question allegedly occurred seven or eight years before the hearing and the memories of the witnesses had faded. Inauiry Into Three () DECEMBER 1987 HEARINGS 79
9 3.8.1 Mile Island Unit 2 Leak Rate Data Falsification, LBP-87-15, 25 NRC 671, 691 (1987). 3.8.1 Environmental Effects Under NEPA It is not necessary that environmental effects be demon-strated with certainty. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184, 1191-92 (1975). 1 It is appropriate to focus only on whether a partial interim action will increase the environmental effects over those analyzed for the full proposed action where there is no l reasonable basis to foresee that the full action will not be permitted in the future. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 629 n.76 (1983). 3.9 Stipulations i 10 CFR 9 2.753 permits stipulation as to facts in a licensing proceeding. Such stipulations are generally encouraged. _Sm g4L, , Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), 1 CL1-74-2, 7 AEC 2, 3 n.1 (1974). However, in the NEPA context, Licensing Boards retain an independent obligation to assure that NEPA is complied with and its policies protected despite stipulation: to that effect. Consolidated Edison Co. of N.Y. (Indian Point Nuclear Generating Station, Unit 3), CLI-75-14, 2 NRC 835, 838 (1975). 3.10 Official Notice of Facts Under 10 CFR 9 2.743(i), official notice may be taken of any fact of which U.S. Courts may take judicial notice. In addition, Licensing Boards may take official notice of any scientific or technical fact l within the knowledge of the NRC as an expert body. In any event, ; parties must have the opportunity to controvert facts which have been officially noticed. Pursuant to this regulation, Licensing and Appeal Boards have taken l official notice of such matters as: (1) a statement in a letter from the AEC's General Manager that future releases of radioactivity from a particular reactor would not exceed the lowest limit established for all reactors at the same site. Duauesne Liaht Co. (Beaver Valley Power Station, Unit 2), LBP-74-25, 7 AEC 711, 733 (1974); (2) Commission records, letters from applicants and materials on file in the Public Document Room to establish the facts with regard to the Ginna fuel problem as that problem related to an appeal in another case. Consolidated Edison Co. of N.Y. ' (Indian Point, Unit 2), ALAB-75, 5 AEC 309, 310 (1972); DECEMBER 1987 HEARINGS 80
_ - _ _ _ _ . =_ _ _ _ - _ _ - I e 3 l/ f 3.10 (3) portions of.a hearing record in another Commission proceeding-involving.the same parties and a similar facility design. Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-~ 74-5,;7 AEC 82, 92 (1974); (4) a statement, set forth in a pleading filed by a party in another Commission proceeding, of AEC responses to inter-rogatories propounded in a court case to which the agency was a party. Catawba, n ar.3, 7 AEC at 96; (5) Staff reports and WASH documents.- Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), LBP-74-22,-7 AEC 659, 667 4 (1974); (6) ACRS letters on file in the Public Document Room. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 332 (1973); (7) the existence of an applicant's Federal Water Pollution-Control Act Section 401 certificate. Washincton Public Power Sunolv System (Hanford No. 2 Nuclear Power Plant), ALAB-ll3, 6 AEC 251, 252 (1973). In most of these cases, the basis for taking official notice was that O (/ the document or material noticed was within the knowledge of the.Com-mission as an expert body or was a part of the public records of the Commission (Et h g.a., cases cited in items 1, 2, 3, 5 and 6 E Dr.A). In the same vein, it would appear that nothing would preclude a Licensing Board from taking official notice of reports and documents filed with the agency by regulated parties, provided that parties to the proceeding are given adequate opportunity to controvert the matter as to which official notice is taken. Eth g.&., Market Street Ry v. Railroad Commission of California, 324 U.S. 548, 562 (1945) (agency's decision based in part on officially noticed monthly operating reports filed with agency by party); State of Wisconsin v. ff.G, 201 F.2d 183, 186 (1952), cert. den., 345 U.S. 934 (1953) (regulatory agency can and should take official notice of. reports , filed with it by regulated company). j 10 CFR f 2.743(i) requires that the parties be informed of the precise facts as to which officia? notice will be taken and be given the opportunity to controvert those facts. Moreover, it is clear that official notice applies to facts, not opinions or conclusions. Consequently, it is improper to take official notice of opinions and i conclusions. Niacara Mohawk Power Coro. (Nine Mile Point, Unit 2), LBP-74-26, 7 AEC 758, 760 (1974). While official notice is appro-priate as to background facts or facts relating only indirectly to the issues, it is inappropriate as to facts directly and specifically at issue in a proceeding. K. Davis, Administrative Law Treatise, O f 15.08. SEPTEMBER 1988 HEARINGS 81
9 3.11 Official notice of information in another proceeding is permis-sible where the parties to the two proceedings are identical, there was an opportunity for rebuttal, and no party is prejudiced by reliance on the information. Armed Forces Radiobioloav Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150, 154 n.3 (1982), citina, United States v. Pierce Auto Freicht Lines, 327 U.S. 515, 527-530 (1945); 10 CFR 2.743(i). The use of officially noticeable material is unobjectionable in proper circumstances. 10 CFP, 9 2.743(i). Interested parties, however, must have an effective chance to respond to crucial facts. Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 350 (1983), citina, Carson Products Co. v. Califano, 594 F.2d 453, 459 (5th Cir. 1979). A Licensing Board will decline to take official notice of a matter which is initially presented in a party's proposed findings of fact and conclusions of law since this would deny opposing parties the opportunity under 10 CFR 9 2.734(c) to confront the facts noticed. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-13, 27 NRC 509, 565-66 (1988). Absent good cause, a Licensing Board will not take official notice of documents which are introduced for the first time as attachments to a party's proposed findings of fact. In order to be properly admitted as evidence, such documents should be offered as exhibits before the close of the record so that the other parties have an opportunity to ' raise objections to the documents. Inouiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, LBP-87-15, 25 NRC 671, 687-88 (1987). The Commission's reference to various documents in the background section of an order and notice of hearing does not indicate that the Commission has taken official notice of such documents. A party who wishes to rely upon such documents as evidence in the hearing should offer the documents as exhibits before the close of the record. Three Mile Island Inauiry, suora, 25 NRC at 688-89. 3.11 Evidence 10 CFR s 2.743 generally delineates the types and forms of evidence which will be accepted and, in some cases must be submitted in NRC licensing proceedings. Generally, testimony is to be pre-filed in writing before the hearing. Pre-filed testimony must be served on the other parties at least 15 days in advance of the hearing at which it will be pre-sented, though the presiding officer may permit introduction of , testimony not so served either with the consent of all parties l present o, after they have had a reasonable chance to examine it. ; Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, j 18, 28), ALAB-367, 5 NRC 92 (1977). Note, however, that where the proffering party gives an exhibit to the other parties the night SEPTEMBER 1988 HEARINGS 82
L 9 3.11.1.1 before the hearing and then alters it.over objection at the hearing , the following day, it is error to admit such evidence since the ob- 1
-jecting parties had no reasonable opportunity to examine it. Id.,.
Technical analyses offered in evidence must 'be sponsored by an expert who can be examined on the reliability of the factual assertions and soundness of the scientific opinions found in the documents. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 367 (1983), citina, Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2),.ALAB-669, 15 NRC 453, 477 (1982). See also Cleveland Electric Illuminating Co. (Perry Nuver Powe" Plant, Units 1 and 2),. ALAB-443, 6 NRC 741, 754-56 (1977); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 494 n.22 (1986); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-891, 27 NRC 341, 350-51 (1988). A Licensing Board may refuse to accept an expert witness' prefiled written testimony as evidence in a licensing proceeding in absence of the expert's personal appearance for cross-examination at the hearing. Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1088 n.13 (1983). .53.g _qenerally 10 CFR 9 2.718; Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-27, 4 AEC 652, 658-59 (1971). 3.11.1 Rules of Evidence While the Federal Rules of Evidence are not directly appli-cable to NRC proceedings, NRC adjudicatory boards often look to those rules for guidance. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 365 n.32 (1983). See aenerally Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982). 3.11.1.1 Admissibility of Evidence Evidence is admissible if it is relevant, material, reliable and not repetitious. 10 CFR 9 2.743(c). Under this standard, the application for a permit or license is admissible upon authentication. Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972), aff'd sub nom., Union of Concerned Scientists v. AEC, 499 F.2d 1069, 1094 (D.C. Cir. 1974). A determination on materiality will precede the admission of an exhibit into evidence, but this is not an ironclad requirement in administrative proceedings in which no jury is involved. The determinations of materiality could be safely
/3 left to a later date without prejudicing the interests of any
(',) new party. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-520, 9 NRC 48, 50 n.2 (1979). SEPTEMBER 1988 HEARINGS 83
5 3.11.1.1.1 l The requirement of authentication or identification as a condition precedent to the admissibility of evidence in NRC licensing proceedings is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC { 346, 365 (1983), citina, Fed. R. Evid. 901(a). ! The Final Safety Analysis Report (FSAR)-is conditionally i admissible as substantive evidence, but once portions of i the FSAR are put into controversy, applicants must present I one or more competent witnesses to defend them. San Onofre, s ora, 17 NRC at 366. I A Licen:ing Board may refuse to accept an expert witness' prefiled written testimony as evidence in a licensing pro-ceeding in the absence of the expert's personal appearance for cross-examination at the hearing. Louisiana Power and Liaht 1 (Waterford Steam Electric Station, Unit 3), ALAB-732,17 i NRC 1076, 1088 n.13 (1983). See aenerally 10 CFR f 2.718; Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power i Plant, Unit 2), ALAB-27, 4 AEC 652, 658-659 (1971). l l In order for expert testimony to be admissible, it need only (1) assist the trier of fact, and (2) be rendered by a properly qualified witness. Louisiana Power and Liaht Co. ' (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983). Sg_q Fed. R. Evid. 702; Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982); Philade19hia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595, 1602 (1985). The opinions of an expert witness which are based on scien-tific principles, acquired through training or experience, and data derived from analyses or by perception are admissible as j evidence. ILhiladelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 720 & n.52 ; (1985). See Fed. R. Evid. 702; McGuire, suora, 15 NRC at 475. The fact that a witness is employed by a party, or paid by a party, goes only to the persuasiveness or weight that should be accorded the expert's testimony, not to its admissibility. Waterford, suora,17 NRC at 1091; Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-85-39, 22 NRC 755, 756 (1985). 3.11.1.1.1 Admissibility of Hearsay Evidence Hearsay evidence is generally admissible in administrative proceedings. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 366 (1983); Duke Power Co. (Catawba Nuclear SEPTEMBER 1988 HEARINGS 84
g
) S 3.11.1.3 Station, Units 1 & 2), ALAB-355, 4 NRC 397, 411-12 (1976);
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB 802, 21 NRC 490, 501 n.67 (1985); Philadelphia EQctric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 273, 279 (1987). There is still a requirement, however, that the hearsay evidence be reliable. For example, a statement by an unknown expert to a no9 expert witness which such witness proffers as substantive evidence is unreliable and, there-fore, inadmissible. Tennessee Valler Authority (Hartsville Nu.: lear Plant, Units 1A, 2A,18, 28), ALAB-367, 5 NRC 92 (1977). In addition to being reliable, hearsay evidence must be relevant, material and not unduly repetitious, to be admissible under 10 CFR 6 2.743(c). Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 477 (1982). Although the testimony of an expert witness which is based on work or analyses performed by other people is essentially hearsay, such expert testimony is admissible in administrative proceedings if its reliability can be determined through questioning of the expert witness. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 718 (1985).
'd In considering a motion for summary disposition, a Board will require a witness to testify from personal knowledge in order to establish material facts which are legitimately in dispute.
This requirement applies as well to expert witnesses who, although generally permitted to base their opinion testimony on hearsay, may only establish those material facts of which they have direct, personal knowledge. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-86-12, 23 NRC 414, 418-19 (1986). 3.11.1.2 Hypothetical Questions Hypothetical questions may be propounded to a witness. Such questions are proper and become a part of the record, however, only to the extent that they include facts which are supported by the evidence or which the evidence tends to prove. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1
& 2), ALAB-334, 3 NRC 809, 828-29 (1976).
3.11.1.3 Reliance on Scientific Treatises, Newspapers, Periodicals An expert may rely on scientific treatises and articles despite the fact that they are, by their very nature, hearsay. Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB- [3 \ 340, 4 NRC 27 (1976). The Appeal Board in Clinton left open (~) the question as to whether an expert could similarly rely on newspapers and other periodicals. SEPTEMBER 1988 HEARINGS 85
9 3.11.1.4 An expert witness may testify about analyses performed by other experts. If an expert witness were required to derive all his background data from experiments which he personally conducted, such expert would rarely be qualified to give any opinion on any subject whatsoever. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 718 (1985), citina, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 332 (1972). 3.11.1.4 Off-the-Record Comments i Obviously, nothing can be treated as evidence which has not been introduced and admitted as such. In this vein, off-the-record ex parte communications carry no weight in adjudicatory j proceedings and cannot be treated as evidence. Public Service 1 Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, j Units 1 & 2), ALAB-459, 7 NRC 179, 191 (1978). j i 3.11.1.5 Presumptions and Inferences With respect to safeguards information, the Commission has declined to permit any presumption that a party who has . demonstrated standing in a proceeding cannot be trusted with l sensitive information. Commonwealth Edison Co. (Byron Nuclear l Power Station, Units 1 and 2), LBP-83-40, 18 NRC 93, 100 ; (1983). In any NRC licensing proceeding, a FEMA (Federal Emergency l Management Agency) finding will constitute a rebuttable ! presumption on questions of adequacy and implementation capability of emergency planning. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-61, 18 NRC 700, 702 (1983), citina, 10 CFR s 50.47(a)(2). ; When a party has relevant evidence within his control which he fails to produce, it may be inferred that such evidence is unfavorable to him. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 498 (1978). 3.11.1.6 Government Documents NRC adjudicatory boards may follow Rule 902 of the Federal Rules of Evidence, waiving the need for extrinsic evidence of authenticity as a precondition to admitting official govern-ment documents to allow into evidence government documents. P_ublic Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-520, 9 NRC 48, 49 (1979). 3.11.2 Status of ACRS Letters Section 182(b) of the Atomic Energy Act of 1954 and 10 CFR
& 2.743(g) of the Commission's Rules of Practice require that SEPTEMBER 1988 HEARINGS 86
k 5
^3 6 3.11.4 1
V the Advisory Committee on Reactor Safeguards (ACRS) letter be proffered and received into evidence. However, because the ACRS is not subject to cross-examination, the ACRS letter , cannot be admitted for the truth of its contents, nor may it J provide the basis for any findings where the proceeding in I which it is offered is a contested one. Arkansas Power & Liaht Co. (Arkansas Nuclear-1, Unit 2), ALAB-94, 6 AEC 25, 32 (1973). The contents of an ACRS report are not admissible in evidence for the truth of any matter stated therein as to controverted issues, but only for the limited purpose of establishing compliance with statutory requirements. A Licensing Board may rely upon the conclusion of the ACRS on issues that are not controverted by any party. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 367 and n.36 (1983). See also Consumers ( Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, j 340 (1973). A Licensing Board may rely upon conclusions of the ACRS on issues that are not controverted by any party. 10 CFR Part 2, Appendix A, s V(f)(1),(2). However, the contents of an Advisory Committee on Reactor Safeguards (ACRS) report cannot, !(3 of itself, serve as an underpinning for findings on health and l safety aspects of licensing proceedings. Lona Island Liahtina ( b) Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445, 518 (1983), citina, Arkansas Power and Licht Co. (Arkansas Nuclear One, Unit 2), ALAB-94, 6 AEC 25, 32 (1973). 3.11.3 Presentation of Evidence by Interveners An intervenor may not adduce affirmative evidence on an issue that he has not raised himself unless and until he amends his contentions. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 869 n.17 (1974). Nevertheless, an intervenor may cross-l examine a witness on those portions of his testimony which l relate to matters that have been placed in controversy by any party to the proceeding as long as the intervenor has a discernible interest in the resolution of the particular matter. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-75-1, 1 NRC 1 (1975), affirmina, ALAB-244, 8 AEC 857, 867-888 (1974). 3.11.4 Evidentiary Objections Objections to particular evidence or the manner of presen-tation thereof must be made in a timely fashion. Failure to object to evidence bars the subsequent taking of exceptions to f'% its admission. Florida Power & Liaht Co. (St. Lucie Nuclear V Power Plant, Unit 2), ALAB-335, 3 NRC 830, 842 n.26 (1976). To preserve a claim of error on an evidentiary ruling, a party SEPTEMBER 1988 HEARINGS 87 l l
9 3.12 must interpose its objection and the basis therefore clearly and affirmatively. If a party appears to acquiesce in an adverse ruling and does not insist clearly on the right to introduce evidence, the Appeal Board will not find that the evidence was improperly excluded. Tennessee Vallev Authorit_y (Hartsville Nuclear Plant, Units lA, 2A,1B & 2B), ALAB-463, 7 NRC-341, 362 n.90 (1978). 3.12 Witnesses at Hearina Because of the complex nature of the subject matter in NRC hearings, witness panels are often utilized. It is recognized in such a procedure that no one member of the panel will possess the variety of ; skills and experience necessary to permit him to endorse and explain the entire testimony. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-379, 5 NRC 565, 569 (1977). The testimony and opinion of a witness who claims no personal knowledge of, or expertise in, a particular aspect of the subject I matter of his testimony will not be accorded the weight given testimony on that question from an expert witness reporting results , of careful and deliberate measurements. Public Service Electric & Gas Comoany (Hope Creek Generating Station, Units 1 & 2), LBP-78-15, 7 NRC 642, 647 n.8 (1978). While a Licensing Board has held that prepared testimony should be l the work and words of the witness, not his counsel, Consumers Power I Co. (Midland Plant, Units 1 and 2), LBP-81-63,14 NRC 1768,1799 (1981), the Appeal Board has made it clear that what is important is not who originated the words that comprise the prepared testimony but rather whether the witness can truthfully attest that the l testimony is complete and accurate to the best of his or her l knowledge. Midland, ALAB-691, 16 NRC 897, 918 (1982). l Where technical issues are being discussed, Licensing Boards are ! encouraged during rebuttal and surrebuttal to put opposing witnesses on the stand simultaneously so they may respond immediately on an opposing witness' answer to a question. Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 457 (1981). Where the credibility of evidence turns on the demeanor of a witness, an appellate board will give the judgment of the trial board, which saw and heard the testimony, particularly great deference. Metropol-itan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1218 (1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). However, demeanor is of little weight where other testimony, documentary evidence, and common sense suggest a contrary result. Three Mile Island, suora, 19 NRC at 1218. O SEPTEMBER 1988 HEARINGS 88
l
,- 9 3.12.2 > ; 1 n ,/ 3.12.1 Compelling Appearance of Witness 1 10 CFR 9 2.720 provides that, pursuant to proper application by a party, a Licensing Board may compel the attendance and l testimony of a witness by the issuance of a subpoena. A 1 Licensing Board has no independent obligation to compel the appearance of a witness. Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 215 (1986).
The Rules of Practice preclude a Licensing Board from declin-ing to issue a subpoena on any basis other than that the testimony sought lacks " general relevance." In ruling on a request for a subpoena, the Board is specifically prohibited from attempting "to determine the admissibility of evidence." 10 CFR 5 2.720(a); Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 93 (1977). 3.12.1.1 NRC Staff as Witnesses The provisions of 10 CFR 9 2.720(a)-(g) for compelling at-tendance and testimony do not apply to NRC Commissioners or Staff. 10 CFR @ 2.720(h). Nevertheless, once a Staff witness
-m has appeared, he may be recalled and compelled to testify ,
further, despite the provisions of 10 CFR s 2.720(h), if it is (V ) 1 established that there is a need for the additional testimony on the subject matter. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 391 (1974). 3.12.1.2 ACRS Members as Witnesses Members of the ACRS are not subject to examination in an adjudicatory proceeding with regard to the contents of an ACRS Report. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760, 766 n.10 (1977). The Appeal Board, at interveners' request, directed that certain consultants to the ACRS appear as witnesses in the proceeding before the Board. Such an appearance was proper under the circumstances of the case, since the ACRS consul-tants had testified via subpoena at the licensing board level at interveners' request. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-604, 12 NRC 149, 150-51 (1980). 3.12.2 Sequestration of Witnesses In Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-379, 5 NRC 565 (1977), the Appeal Board considered a Staff request (3 for discretionary review of a Licensing Board ruling which t
'v) excluded prospective Staff witnesses from the hearing room while other witnesses testified. The Appeal Board noted that SEPTEMBER 1988 HEARINGS 89
t 9 3.12.3 while sequestration orders'must be granted as a matter of right in Federal district court cases, NRC adjudicatory proceedings are clearly different in that direct testimony is generally pre-filed in writing. As such, all potential witnesses know in advance the basic positions to be taken by other witnesses. In this situation, the value of sequestra-tion is reduced. Moreover, the highly technical and complex nature of NRC proceedings often demands that counsel have the aid of expert assistance during cross-examination of other parties' witnesses. In view of these considerations, the Appeal Board held that sequestration is only proper where there is some countervail-ing purpose which it could serve. The Board found no such purpose in this case, but in fact, found that sequestration here threatened to impede full development of the record. As such, the Licensing Board's order was overturned. The Appeal Board also noted that there may be grounds to distinguish between Staff witnesses and other witnesses with respect to sequestration, with the Staff being less subject to sequestra-tion than other witnesses, depending on the circumstances. 3.12.3 Board Witnesses , The Appeal Board has indicated that where an intervenor would ! call a witness but for the intervenor's financial inability to , do so, the Licensing Board may call the witness as a Board , witness and authorize NRC payment of the usual witness fees and expenses. The decision to take such action is a matter of ; Licensing Board discretion which should be exercised with j circumspection. If the Board calls such a witness as its own, ! it should limit cross-examination to the scope of the direct j examination. Consumers Power Co. (Midland Plant, Units 1 & I 2), ALAB-382, 5 NRC 603, 607-08 (1977). j In the interest of a complete record, the Appeal Board may order the Staff to submit written testimony from a " knowledge-able witness" on a particular issue in a proceeding. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, i Units 1 and 2), ALAB-607, 12 NRC 165, 167 (1980). l A Licensing Board should not call upon independent con-sultants to supplement an adjudicatory record except in that most extraordinary situation in which it is demon-strated that the Board cannot otherwise reach an informed decision on the issue involved. Part 2 of 10 CFR and Appendix A both give the Staff a dominant role in assess-ing the radiological health and safety aspects of facil-ities involved in licensing proceedings. Before an adjudicatory board resorts to outside experts of their own, they should give the NRC Staff every opportunity to explain, correct and supplement its testimony. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear SEPTEMBER 1988 HEARINGS 90
i 1 cm 9 3.12.4
\
w Station, Unit 1), ALAB-663, 14 NRC 1140, 1146, 1156 (1981). EgLe Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247 (1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). Thus, ! while Licensing Boards have the authority to call witnesses of I their own, the exercise of this discretion must be reasonable I and, like other Licensing Board rulings, is subject to appellate review. A Board may take this extraordinary action only after (1) giving the parties to the proceeding every fair opportunity to clarify and supplement their previous testi-many, and (2) showing why it cannot reach an informed decision without independent witnesses. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 NRC 25, 27-28 (1983). Applying the criteria of Summer, suora, 14 NRC at 1156, 1163, a Licensing Board determined that it had the authority to call an expert witness to focus on matters the Staff had apparently ignored in a motion for summary disposition of a health effects contention. Carolina Power & Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Plant, Units 1 and 2), LBP-84-7, 19 NRC 432, 442-43 (1984), reconsid. den on other around , LBP-84-15, 19 NRC 837, 838 (1984). (g v) 3.12.4 Expert Witnesses When the qualifications of an expert witness are challenged, the party sponsoring the witness has the burden of demonstrat-ing his expertise. Pacific Gas and Electric Co. (Diablo Can-yon Nuclear Power Plant, Units 1 and 2), ALAB-410, 5 NRC 1398, 1405 (1977). The qualifications of the expert should be established by showing either academic training or relevant experience or some combination of the two. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-78-36, 8 NRC 567, 570 (1978). As to academic train-ing, such training that bears no particular relationship to the matters for which an individual is proposed as an expert witness is insufficient, standing alone, to qualify the indi-vidual as an expert witness on such matters. Diablo Canyon, LBP-78-36, 8 NRC at 571. In addition, the fact that a pro-posed expert witness was accepted as an expert on the subject matter by another Licensing Board in a separate proceeding does not necessarily mean that a subsequent Board will accept the witness as an expert. Diablo Canyon, LBP-78-36, 8 NRC at 572. A witness is qualified as an expert by knowledge, skill, experience, training, or education. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC
/^\ 681, 732 n.67 (1985), citina, Fed. R. Evid. 702. See Duke
(") Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982). SEPTEMBER 1988 HEARINGS 91
L l' i 6 3.12.4.1 The value of testimony by a witness at NRC proceedings is not undermined merely by the fact that the witness is a hired consultant of a licensee. Metropolitan Edison Co. (Three Mile l Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193,1211 l (1984), rev'd in oart on other arounds, CLI-85-2, 21 NRC 282 ' l (1985). It is not acceptable for an expert witness to state his ultimate conclusions on a crucial aspect of the issue being tried, and then to profess an inability--for whatever reason-- to provide the foundation for them to the decision maker and l litigants. Virainia Electric and Power Company (North Anna ! Nuclear Power Station, Units 1 and 2), ALAB-555,10 NRC 23, 26 (1979). An assertion of " engineering judgment", without any explanation or reasons for the judgment, is insufficient to support the conclusions of an expert engineering witness. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 18 NRC 1410, 1420 (1983), modified on reconsid. sub nom., Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-10, 19 NRC 509, 518, 532 (1984). A Board should give no weight to the testimony of an asserted l expert witness who can supply no scientific basis for his statements (other than his belief) and disparages his own ; testimony. Philadelphia Electric Co. (Limerici: Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 735 (1985). A witness testifying to the results of an analysis need not i have at hand every piece of datum utilized in performing that l analysis. In this area, a rule of reason must be applied. It is not unreasonable, however, to insist that, where the out- ! come on a clearly defined and substantial safety or environ-mental issue may hinge upon the acceptance or rejection of an expert conclusion resting in turn upon a performed analysis, the witness make available (either in his prepared testimony or on the stand) sufficient information pertaining to the details of the analysis to permit the correctness of the conclusion to be evaluated. North Anna, supra, 10 NRC at 27. A Licensing Board may refuse to accept an expert witness' prefiled written testimony as evidence in a liransing pro-ceeding in the absence of the expert's personal appearance for cross-examination at the hearing. Louisiana Power and Liaht C_g_,. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1088 n.13 (1983). See aenerally 10 CFR 9 2.718; Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-27, 4 AEC 652, 658-59 (1971). 3.12.4.1 Fees for Expert Witnesses Commission regulations provide for expert witness fees in connection with depositions (10 CFR @ 2.740(h)) and for SEPTEMBER 1988 HEARINGS 92
5 3.13 ( } subpoenaed witnesses (10 CFR 9 2.720(d)). Although these regulations specify that the fees will be those " paid to , witnesses in the district courts of the United States," there had been some uncertainty as to whether the fees i referred to were the statutory fees of 28 U.S.C. 61821 l or the expert witness fees of Rule 26 of the Federal Rules of Civil Procedure. In Public Service Co. of Oklahoma (Black Fox, i Units 1 and 2), LBP-77-18, 5 NRC 671 (1977), the Licensing Board ruled that the fees referred to in the regulations were the statutory fees. The Board suggested that payment of ex-pert witness fees is especially appropriate when the witness was secured because of his experience and when the witness' expert opinions would be explored during the deposition or testimony. The Board relied on 10 CFR 5 2.720(f), which per-mits conditioning denial of a motion to quash subpoenas on compliance with certain terms and conditions which could in-clude payment of witness fees, and on 10 CFR 5 2.740(c), which provides for orders requiring compliance with terms and condi-tions, including payment of witness fees, prior to deposition. 3.13 Cross-Examination Cross-examination must be limited to the scope of the contentions n admitted for litigation and can appropriately be limited to the scope ( ) of direct examination. Louisiana Power and Liaht Co. (Waterford v' Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1096 (1983), citina, Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 698, affirmed, CLI-82-11, 15 NRC 1383 (1982); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 867, 869 (1974); Houston Liahtina and Power C h (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 378 (1985). In exercising its discretion to limit what appears to be improper cross-examination, a Licensing Board may insist on some offer of proof or other advance indication of what the cross-examiner hopes to elicit from the witness. Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1096 (1983), citina, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 316 (1978); San Onofre, suora, 15 NRC at 697; frairie Island, supra, 8 AEC at 869. The authority of a Board to demand cross-examination plans is en-compassed by the Board's power to control the conduct of hearings and to take all necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination. 10 CFR GD 2.718(e), 2.757(c). Such plans are encouraged by the Commission as a means of making a hearing more efficient and expeditious. Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8,13 NRC 452, 457 O 4 (1981); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 377 (1985). SEPTEMBD1 1988 HEARINGS 93
I 1 S 3.13.1 Even if cross-examination is wrongly denied, such denial does not constitute prejudicial error Der se. The complaining party must demonstrate actual prejudice, JA, that the ruling had a substantial effect on the outcome of the proceeding. Waterford, suora, 17 NRC at 1096; San Onofre, suora, 15 NRC at 697 n.14; San Onofre, supra,15 NRC at 1384; Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1151 : (1984); Houston Lichtina and Power Co. (South Texas Project, Units 1 ! and 2), ALAB-799, 21 NRC 360, 376-77 (1985); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 76 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 495 (1986). Cross-examination, though subject to restriction, is a fundamental ' right conferred on parties to formal adjudication in NRC proceedings by the Administrative Procedure Act and by the Commission's Rules of Practice, Cross-examination during a deposition, which might suffice under truly exceptional circumstances, is not otherwise a ready substitute for cross-examination before the presiding officer, , Consolidated Edison Co. of New York (Indian Point, Unit 2) and Power l Authority of the State of New York (Indian Point, Unit 3), LBP-83-29, 17 NRC 1117, 1120 (1983), i 3.13.1 Cross-Examination By Interveners l The ability to conduct cross-examination in an adjudication is not such a fundamental right that its denial constitutes i prejudicial error Der se. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-82-ll, 15 NRC 1383, 1384 (1982). An intervenor may crass-examine a witness on those portions of his testimony which relate to matters that have been placed in controversy by any party to the proceeding, as long as the intervenor has a discernible interest in the resolution of the particular matter. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-75-1, 1 NRC 1 (1975), affirmina, AAB-244, 8 AEC 857 (1974). In the case of a reopened proceeding, permissible inquiry through cross-examination necessarily extends to every matter within the j reach of the testimony submitted by the applicants and accepted by the Board. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33 (1977). j It is error to preclude cross-examination on the ground that interveners have the burden of proving the validity of their contentions through their own witnesses since it is clear that interveners may build their case " defensively" through cross- i examination Tennessee Valley Authority (Hartsville Nuclear ! Plant, Units lA, 2A, IB & 2B), ALAB-463, 7 NRC 341, 356 (1978); j Commonwealth Edison Co. (Braidwood Nuclear Power Station, ' Units 1 and 2), LBP-85-20, 21 NRC 1732, 1745 (1985), rev'd and I remanded on other arounds, CLI 86-8, 23 NRC 241 (1986). 1 SEPTEMBER 1988 HEARINGS 94
L l 9 3.13.1
) Calculations underlying a mathematical estimate which is in controversy are clearly relevant since they may reveal errors in the computation of that estimate. Hartsville, suora, 7 NRC at 355-56. A Licensing Board might be justified in denying a ,
motion to require production of such calculations to aid l cross-examination on the estimate as a matter of discretion in regulating the course of the hearing. h .e.&, Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB-340, 4 ! NRC 27, 32-36 (1976). However, an Appeal Board will not-affirm a decision to cut off cross-examination on the basis that it was within the proper limits of a Licensing Board's discretion when the record does not indicate that the Licensing Board considered this discretionary basis. Hartsville, supra, 7 NRC at 356. An intervenor's cross-examination may not be used to expand the number or scope of contested issues. Prairie Island, suora, 8 AEC at 867. To assure that cross-examination does not expand the boundaries of issues, a Licensing Board may: (1) require in advance that an intervenor indicate what it will attempt to establish on cross-examination; (2) limit cross-examination if the Board determines that it rN will be of no value for development of a full record on the issues; (v) (3) halt cross-examination which makes no contribution to development of a record on the issues; and (4) consolidate interveners for purposes of cross-examination on the same point where it is appropriate to do so in accordance with the provisions of 10 CFR 9 2.715a. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975). While an intervenor has a right to cross-examine on any issue in which he has a discernible interest, the Licensing Board has a duty to monitor and restrict such cross-examination to avoid repetition. CLI-75-1 supra, 1 NRC 1. The Board is explicitly authorized to take the necessary and proper measures to prevent argumentative, repetitious or cumulative cross-examination, and the Board may properly limit cross-examination which is merely repetitive. Tennessee Valley Authority (Harts-ville Nuclear Plant, Units lA, 2A, IB & 28), ALAB-367, 5 NRC 92 (1977); Prairie Island, suora, ALAB-244, 8 AEC 857, 868. Moreover, cross-examination must be strictly
/N limited to the scope of the direct examination. Prairie
(") Island, CLI-75-1,1 NRC 1 and ALAB-244, 8 AEC 857 at 867. As a general proposition, no party has a right to SEPTEMBER 1988 HEARINGS 95
S 3.13.1 unfettered or unlimited cross-examination and cross-examination may not be carried to unreasonable lengths. 9I: The test is whether the information sought is necessary for a full and true disclosure of the facts. Prairie Island, supra, ALAB-244, 8 AEC 857, 869 n.16; Lona Island s Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP- 1 82-107, 16 NRC 1667, 1674-1675 (1982), citina, Section 181 of the Atomic Energy Act; Section 7(c) of the APA, 5 U.S.C. 5 556(d). This limitation applies equally to cross-examina- i tion on issues raised sua sconte by the Licensing Board in an operating license proceeding. 16 at 8 AEC 869. The scope of cross-examination and the parties that may I engage in it in particular circumstances are matters of f Licensing Botrd discretion. Public Service Co. of Indiana. l Im (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 (1978). Unnecessary cross-examination may be limited by a Licensing ) Board, in its discretion, to expedite the orderly presentation 1 of each party's case. Cross-examination plans (submitted to { the Board alone) are ercouraged, as are trial briefs and pre-filed testimony outlines. Statement of Policy on Conduct of Licensina Proceedings, CLI-81-8, 13 NRC 452, 457 (1981). Licensing Boards are authorized to establish reasonable time l limits for the examination of wHr. esses, including cross- ' examination, under 10 CFR 99 2.718(c) and 2.757(c), Commis-sion's Statement of Policy on Conduct of Licensine Proceed-inas, CLI-81-8, 13 NRC 452 (1981) and relevant judicial i decisions. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-84-24, 19 NRC 1418, 1428 (1984); Philadelphia { Electric Co. (Limerick Generating Station, Units 1 and 2), f ALAB-836, 23 NRC 479, 501 (1986). See MCI Communications Coro. v. AT&T, 85 F.R.D. 28 (N.D. Ill .1979), aff'd, 708 F.2d 1081, 1170-73 (7th Cir. 1983). l A Licensing Board has the authority to direct that parties to an operating license proceeding conduct their initial cross- I examination by means of prehearing examinations in the nature ' of depositions. Pursuant to 10 CFR S 2.718, a Board has the l power to regulate the course of the hearing and the conduct of ' the participants, as well as to take any other action consistent with the APA. See also 10 CFR 9 2.757,10 CFR Part 2, App. A, IV. In expediting the hearing process using the case management method contained in Part 2, a Board should ensure that the hearings are fair, and produce a record which leads to high quality decisions and adequately protects the public health and safety and the environment. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-107, 16 NRC 1667, 1677 (1982), gitina, Statement of Policy, supra, 13 NRC at 453. SEPTEMBER 1988 HEARINGS 96 1
-% 9 3.14.1
\
.. lV In considering whether to. impose controls on cross-examina-tion, questions raised by the applicant concerning the adequacy of the Staffs of the Appeal Board or Commission to review a-lengthly record, either on appeal.or sua soonte, should not be taken into account. To the extent that cross-examination may contribute to a meaningful record, it 'should not be limited to accommodate asserted staffing deficiencies within NRC. Consumers-Power Co. (Midland Plant, Units 1 and 2), LBP-83-28, 17 NRC 987, 992 (1983). 3.13.2 Cross-Examination'by Experts The rules of practice permit a party to have its cross-examination of others performed by individuals with tech- < nical expertise in the subject matter of the cross-examina-tion provided that the proposed interrogator is shown to meet the requirements set forth in 10 CFR 6 2.633(a). An expert interrogator need not meet.the same standard of expertise as an expert witness. The standard for. inter- i rogators under 10 CFR @ 2.733(a) is that the individual "is qualified by scientific training or experience to contribute to the development of an adequate decisional record in the proceeding by the conduct of such examination or cross-examination." The Recents of the University of California (UCLA Research Reactor), LBP-81-29, 14 NRC 353, 354-55 (1981).
-{S 3.13.3 Inability to Cross-Examine as Grounds to Reopen Where a Licensing Board holds to its hearing schedule despite a claim by an intervenor that he is unable to prepare for the cross-examination of witnesses because of scheduling problems, the proceeding will be reopened to allow the intervenor to cross-examine witnesses. Northern Indiana Public Service Co.
(Bailly Generating Station, Nuclear-1) ALAB-249, 8 AEC 980 (1974). 3.14 Record of Hearina It is not necessary for legal materials, including the Standard Review Plan, Regulatory Guides, documents constituting Staff guidance, and industry code sections applicable to a facility, to be in the evidentiary record. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-55,18 NRC 415, 418 (1983). 3.14.1 Supplementing Hearing Record by Affidavits Appeal Boards will not permit gaps in the record to be filled by affidavit where the issue is technical and complex. Northern States Power Co. (Prairie Island DECEMBER 1986 HEARINGS 97
i i 5 3.14.2 Nuclear Generating Plant, Units 1 & 2), ALAB-284, 2 NRC 197, ! 205-06 (1975). There is no significance to the content of affidavits which do { not disclose the identity of individuals making statements in the affidavit. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 2), ALAB-525, 9 NRC 111,114 (1979). t 3.14.2 Reopening Hearing Record ] i If a Licensing Board believes that circumstances warrant I reopening the record for receipt of additional evidence, it l has discretion to take that course of action. Cleveland i Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741 (1977). It may do so, for example, in order to receive additional documents in support of motion for summary disposition where the existing record is insufficient. JA at 752. For a discussion of reopening, see 3 Section 4.4. l j Reopening a record is an extraordinary action. To prevail, i the petitioners must demonstrate that their motions are { timely, that the issues they seek to litigate are significant, l and that the information they seek to add to the record would j change the results. Metropolitan Edison Co. (Three Mile Island Nuclear Statioci, Unit No. 1), LBP-82-34A, 15 NRC 914, 915 (1982); Union Electric CA (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1207 (1983); Pacif'ic Gas and Electric Ch (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB- l 775, 19 NRC 1361, 1365-66 (1984), aff'd sub. nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. , 1984), aff'd on reh'a en banc, 789 F.2d 26 (1986). See also j Metropolitan Edison Co. (Three Mile Island Nuclear Station, I Unit 1), ALAB-807, 21 NRC 1195, 1216 (1985). ) Even though a matter is timely raised and involves significant 1 safety considerations, no reopening of the evidentiary hearing j will be required if the affidavits submitted in response to I the motion demonstrate that there is no genuine unresolved l issue of fact, i.e., if the undisputed facts establish that i the apparently significant safety issue does not exist, has l been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104, 109 (1983). A motion to reopen the evidentiary record because of previously undiscovered conclusions of an NRC Staff inspection group must establish the existence of dif-O' DECEMBER 1986 HEARINGS 98 l
)
i
.[ $ 3.14.2~
V fering technical bases for the conclusions. :The conclusions alone would be insufficient evidence to justify reopening of ' the record. .Three Mile Island, supra, 15 NRC at 916. Reopening'the record is within the Licensing Board's discre-tion and need not be done absent a showing that the outcome of the proceeding might be affected and that reopening the record would involve issues of major significance. Southern. California Edison Co..(San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-46, 15 NRC 1531, 1535 (1982), citina, Public Service Co. of Oklahoma (Black Fox Station),10 NRC 775, 804 (1978); Public Service Co. of New Hampshire (Seabrook. Station), 6 NRC 33, 64, n.35 (1977); Vermont Yankee Nuclear Power Coro. (Vermont Yankee Station), ALAB-138, 6 AEC 520, 523 (1973). After the record is closed in an operating license pro-ceeding, where parties proffering new contentions do not meet legal standards for further hearings, that the contentions raise serious issues is insufficient justification to reopen the record to consider them as Board issues when the conten-tions are being dealt with in the course of ongoing NRC investigation and Staff monitoring. Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), i pI CLI-82-20, 16 NRC 109, 110_(1982). See LBP-82-54, 16 NRC 210; d Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 236 (1986), aff'd sub nom. Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987). Although the standard for reopening the record in an NRC proceeding has been variously stated, the traditional standard requires that (1) the motion be timely, (2) significant new evidence of a safety question exist, and (3) the new evidence might materially affect the outcome. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 800 n.66 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104, 108 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 476 (1983); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193, 1260 (1984), rev'd in part on other ands, CLI-85-2, 21 NRC 282 (1985); ligtropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1355 (1984); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 285 n.3 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-8, 21 NRC 1111, 1113 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 17 (1986). JUNE 1987 HEARINGS 99
9 3.14.3 The traditional standard for reopening applies in determining whether a record should be reopened on the basis of new information. The standard does not apply where the issue is whether the record should be reopened because of an inadequate record. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 285 n.3 (1985). The Board must be persuaded that a serious safety matter is at stake before it is appropriate for it to require supplements-tion of the record. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-55,18 NRC 415, 418 (1983). Egg Pue11c Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-879, 26 NRC 410, 412 n.5, 413 (1987). In proceedings where the evidentiary record has been closed, the record should not be reopened on TMI related issues relating to either low or full power absent a showing, by the moving party, of significant new evidence not included in the record, that materially affects the decision. Bare allega- i tions or simple submission of new contentions is not suffi- l cient, only significant new evidence requires reopening. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 803 (1983), j review denied, CLI-83-32, 18 NRC 1309 (1983). ; The factors to be applied in reopening the record are not necessarily additive. Even if timely, the motion may be denied if it does not raise an issue of major significance. However, a matter may be of such gravity that the motion to reopen should be granted notwithstanding that it might have been presented earlier. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1143 (1983), citina, Vermont Yankee Nuclear Power Corp. (Vermont <' Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). Newspaper allegations of quality assurance deficiencies, ) unaccompanied by evidence, ordinarily are not sufficient I grounds for reopening an evidentiary record. Cleveland l Electric Illuminating Co. (Perry Nuclear Power Plant, Units I 1 and 2), LBP-84-3, 19 NRC 282, 286 (1984). 3.14.3 Material Not Contained in Hearing Record Adjudicatory decisions must be supported by evidence prop-erly in the record. Pacific Gas & Electric Co. (Diablo j Canyon Nuclear Power Plant, Units 1 & 2), ALAB-5SO,11 NRC i 227, 230 (1980); Philadelphia Electric Co. (Limerick l Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, ) 499 n.33 (1986). Neither the Licensing Board nor the ! Appeal Board may base a decision on factual material which l l I MARCH 1988 HEARINGS 100 ! _j
c,
) 9 3.15 j
has not been introduced into evidence. However, if extra-record material raises an icsue of possible importance to matters such as public health, the Appeal Board may examine it. If this examination creates a serious doubt about the decision reached by the Licensing Board, the Appeal Board may order that the record be reopened for the taking of supplemen-tary evidence. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, ~2A, IB & 28), ALAB-463, 7 NRC 341, 351-352 (1978). Whether or not proffered affidavits would leave tha Licensing Board's result unchanged, simple equity precludes the Appeal Board from reopening the record in aid of interveners' apparent desire to attack the decision below on fresh grounds. Where the presentation of new matter to supplement the record is untimely, its possible significance to the outcome of the proceeding is of no moment, at least where the issue to which it relates is devoid of grave public health and safety or environmental implications. Puerto Rico Electric Power Authority (North Coast Nuclear Power Plant, Unit 1), ALAB-648, 14 NRC 34, 38-39 (1981), citins, Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978); Northern Indiana Public Service Co. (Bailly rm Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 ( ) (1974); and Hartsville, supra.
%./
3.15 Interlocutory Review via Directed Certification As a general rule, interlocutory appeals during a pending proceeding are not permitted. 10 CFR 9 2.730(f). Gowever, a party may seek interlocutory review by filing a petition for certification as to any question deserving early dispositive resolution. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 478, 482-83 (1975). The issues that may he certified are not limited to those that have not yet been considered and ruled upon by the presiding Licensing Board. 1 In fact, the Appeal Board will be disinclined to direct certification unless and until the Licensing Board has been given a reasonable opportunity to decide the issue itsel f. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-297, 2 NRC 727 (1975). Ars exception to this rule will be made in compelling circumstances where, for example, there is an emergency situation requiring an immediate, final determination of the issue. 1 The practice of simultaneously seeking interlocutory appellate review of grievances by way of directed certification and Licensing Board reconsideration of the same rulings is disfavored. Houston thhtiqa and Power A (Allens Creek Nuclear Generating Station, Unit 1), ALAB-630, 13 HRC 84, 85 (1981). The only procedural vehicle by which a party may seek review of interlocutory matters is a request for directed certification. L j' DECEMBER 1986 HEARINGS 101
9 3.15 The exercise of an Appeal Board's discretionary authority to grant dMeted certification is reserved for important Licensing Board
' i ags that, absent immediate appellate review, threaten a party witt serious irreparable harm or pervasively affect the basic structure of the proceeding. Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-736,18 NRC 165, 166 n.1 (1983). To obtain certification for an interlocutory review, the party seeking it must show that, without such certification, the public interest will suffer or unusual delay or expense will be encountered. 10 CFR 9 2.730(f); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 478 (1975). This showing is not made merely by a demonstration that a Licensing Board promulgated an interlocutory, non-appealable pronouncement at variance with previous rulings of other boards, unless some special circumstance makes immediate elimination of the decisional conflict imperative. Jd Developments occurring subsequent to the filing of a motion for directed certification to the Appeal Board may strip the question raised in the motion for certification of an essential ingredient and, therefore, constitute grounds for denial of the motion. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-419, 6 NRC 3, 6 (1977). Appeal Boards undertake discretionary interlocutory review of a Licensing Board ruling only where such ruling either (1) threatens 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) affects the basic structure of the proceeding in a pervasive or unusual manner. Puaet Sound Power
& Liaht Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-572,10 NRC 693, 694 (1979); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-735, 18 NRC 19, 23 (1983), citins, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977); Common- 1 wealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ,
ALAB-817, 22 NRC 470, 473 (1985). ] The Appeal Boards' certification authority was not intended to be applied to a mixed question of law and fact in which the factual element was predominant. Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). The Commission's Rules of Practice,10 CFR s 2.714a, prohibit a person from taking an interlocutory appeal from an order entered 1 on his intervention petition unless that order has the effect of l denying the petition in its entirety. Texas Utilities Generat- 1 i DECEMBER 1986 HEARINGS 102 f 4
;,-g 6 3.16 V '~ ina Comoany (Comanche Peak Steam Electric Station, Units 1 & 2),
ALAB-621, 12 NRC 578, 579 (1980). 3.16 Licensina Board Findinas The findings of a Licensing Board must be supported by reliable, probative and substantial evidence in the record. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184 (1975). It is well settled that the possibility that inconsistent or even contrary views could be drawn if the views of an opposing party's experts were accepted does not prevent the Licensing Board's findings from being supported by substantial evidence. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 958, 866 (1975). A Licensing Board is free to decide a case on a theory different from that on which it was tried but when it does so, it has a concomitant obligation to bring this fact to the attention of the parties before it and to afford them a fair opportunity to present argument, and where appropriate, evidence. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 55-56 (1978); Niacara Mohawk Power Co. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 354 (1975). Note that as to a Licensing Board's findings, the Appeal Board has authority to make factual findings on the basis of record evidence which are different ( from those reached by a Licensing Board and can issue supplementary findings of its own. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977). The Appeal Board decision can be based on grounds completely foreign to those relied upon by the Licensing Board so long as the parties had a sufficient opportunity to address those new grounds with argument and/orevidence. Id. In any event, neither the Licensing Board nor , the Appeal Board may base a decision on factual material which has not been introduced into evidence. Otherwise, other parties would be deprived of the opportunity to impeach the evidence through cross-examination or to refute it with other evidence. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units IA, 2A,18 and 28), ALAB-463, 7 NRC 341, 351-52 (1978). The Board's initial decision should contain record citations to support the findings. Virainia Electric & Power Co. (North Anna Power Station, Units 1, 2, 3, & 4), ALAB-256, 1 NRC 10, 14 n.8 (1975). Despite the fact that a number of older cases have held that a Licensing Beard is not required to rule specifically on each finding proposed by the parties (see Boston Edison Co. L (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972), aff'd sub nom., Union of Concerned Scientists v. AEC, 449 F.2d 1069 (D.C. Cir 1974); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 321 (1972)), the Appeal Board has indicated that a Licensing Board must clearly state the basis for its decision and, in particular, state reasons O for rejecting certain evidence in reaching the decision. Publis DECEMBER 1986 HEARINGS 103 l l
Service Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977). While the Seabro_qh Appeal Board found that the deficiencies in the initial decision were not so serious as to require reversal, especially in view of the fact that t e Appeal Board itself can make findings of fact where necessary, the Appeal Board made it clear that a Licensing Board's blatent failure to follow the Appeal Board's direction in this regard is ground for reversal of the Licensing Board's decision. Notwithstanding its authority to do so, the Appeal Beard will normally be reluctant to search the record to determine whether it included sufficient information to support conclusions for which the Licensing Board failed to provide adequate justification. A remand, very possibly accompanied by an outright vacation of the result reached below, would be the usual course where the Licensing Board's decision does not adequately support the conclusions reached therein. Seabrook, supra, 6 NRC 33 at 42. Note, however, that in at least one case the Appeal Board did search the record where (1) the Licensing Board's decision preceded the Appeal Board's decision in Seabrook which clearly established this policy and (2) it did not take an extended period of time for the Appeal Board to conduct its own evaluation. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, 28), ALAB-463, 7 NRC 341, 368 (1978). The Appeal Board's admonition that Licensing Boards must clearly set forth the basis for their decisions applies to a Board's determina- < tion with respect to alternatives under NEPA. Thus, although a Licensing Board may utilize its expertise in selecting between alternatives, some explanation is necessary. Otherwise, the requirement of the Administrative Procedure Act that conclusions be founded upon substantial evidence and based on reasoned findings "become[s] lost in the haze of so-called expertise." Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 66 (1977). When evidence is presented to the Licensing Board in response to an Appeal Board instruction that a matter is to be investigated, the Licensing Board is obligated to make findings and issue a ruling on the matter. Tennessee Vallev Authority (Hartsville Nuclear Plant, j Units IA, 2A, 1B & 2B), ALAB-463, 7 NRC 341, 368 (1978). ! In Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 l
& 2), ALAB-471, 7 NRC 477, 492 (1978), the Appeal Board reiterated that the bases for decisions must be set forth in detail, noting j that, in carrying out its NEPA responsibilities, an agency "must go l beyond mere assertions and indicate its basis for them so that the end product is" an informed and adequately explained judgment.
Licensing Boards have an obligation "to articulate in reasonable detail the basis for [their] determination." A substantial DECEMBER 1986 HEARINGS 104
gy S 3.16 failure of the Licensing Board in this regard can result in the matter being remanded for reconsideration and a full explication of the reasons underlying whatever result that Board might reach upon such reconsideration. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410-412 (1978). The fact that a Licensing Board poses questions requiring that evidence be produced at the hearing in response to those questions does not create an inviolate duty on the part of the Board to make findings specifically addressing the subject matter of the questions. Portland General Electric Comoany (Trojan Nuclear Plant), LBP-78-32, 8 NRC 413, 416 (1978). A Licensing Board decision which rests significant findings on expert opinion not susceptible of being tested on examination of the witness is a fit candidate for reversal. Virainia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23, 26 (1979). Licensing Boards passing on construction permit applications must be satisfied that requirements for an operating license, including those involving management capability, can be met by the applicant at the o' time such license is sought. Carolina Power & Liaht Co. (Shearon
!' Harris Nuclear Power Plant, Un" e 1, 2, 3 & 4), AlAB-577, 11 NRC 18, 26-28 (1980), modified, CLI-80-n,11 NRC 514 (1960).
Where evidence may have been introduced by interveners in an operating license proceeding, but the construction permit Licens-ing Board made no explicit findings with regard to those matters, and at the construction permit stage the proceeding was not con-tested, the operating license Licensing Board will decline to treat the construction permit Licensing Board's general findings as an implicit resolution of matters raised by interveners. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-79-1, 9 NRC 73, 79 n.6 (1979). In order to avoid unnecessary and costly delays in starting the operation of a plant, a Board may conduct and complete operating license hearings prior to the completion of construction of the ( pl ant. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811, 21 NRC 1622, 1627 (1985), review denied, CLI-85-14, 22 NRC 177, 178 (1985). Thus, a Board must make some predictive findings and, "in effect, approve applicant's present plans for future regulatory compliance." Diablo Canyon, suora, 21 NRC at 1627, citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-653,16 NRC 55, 79 (1981). There is no requirement mandated by the Atomic Energy Act nor (N the Commission's regulations that a Licensing Board may not resolve a contested issue if any form of confirmatory analysis DECEMBER 1986 HEARINGS 105
9 3.16.1 is ongoing as of the close of the record on that issue, where a Licensing Board is able to make the basic findings prerequisite to the issuance of an operating license based on the existing record. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57, 18 NRC 445, 519 (1983), citina, Consolidated Edison Co. of ' New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947, 951-52 (1974) and Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 318 (1978); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-811, 21 NRC 1622, 1628 (1985), review denied, CLI-85-14, 22 NRC 177, 178 (1985). Rulings and findings made in the course of a proceeding are not in themselves sufficient reasons to beliove that a tribunal is biased for or against a party. Pacific Gts and Electric Co. (Diablo Canyon { Nuclear Power Plant, Units 1 and 2), ALAB-644,13 NRC 903, 923 { (1981). I 5.16.1 Independent Calculations by Licensing Board I A Board is free to draw conclusions by applying known en- ) gineering principles to and making mathematical calculations from facts in the record whether or not any witness purported to attempt this exercise. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425, 437, rev. on other ands., CLI-74-40, 8 AEC 809 (1974). However, the Board must adequately explain the basis for its conclusions. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 66 (1977). 3.17 Res Judicata and Collateral Estoppel Although the judicially developed doctrine of res judicata is not fully applicable in administrative proceedings, the considerations of fairness to parties and conservation of resources embodied in this doctrine are relevant. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 27 (1978), citina, Houston Liahtina and Power Comoany (South Texas Project, Units 1 and 2), CLI-77-13, 5 NRC 1303, 1321 (1977). Thus, as a general rule, it appears that res judicata principles may I be applied, where appropriate, in NRC adjudicatory proceedings. Consistent with those principles, res judicata does not apply when , the foundation for a proposed action arises after the prior ruling l advanced as the basis for res judicata or when the party seeking to I employ the doctrine had the benefit, when he obtained the prior j ruling, of a more favorable standard as to burden of proof than is ; now available to him. Public Service Co. of New Hampshire (Seabrook j Station, Units 1 & 2), ALAB-349, 4 NRC 235 (1976). Oi DECEMBER 1986 HEARINGS 106 i l
p-WW 6 3.17 The common law rules regarding res .iudicata do not apply, in a strict sense, to administrative agencies. Res iudicata need not be applied by an administrative agency where there are overriding public policy l interests which favor relitigation. United States Department of Enerav. Pro.iect Manaaement Corporation. Tennessee Valley Authority l (Clinch River Breeder Reactor Plant), CLI-82-23, 16 HRC 412, 420 (1982), citina, International Harvester Co. v. Occupational Safety and Health Review Commission, 628 F.2d 982, 986 (7th Cir.1980). When an agency decision involves substantial policy issues, an agency's need for flexibility outweighs the need for repose provided by the principle of res iudicata. Clinch River, supra, 16 NRC at 420, citina, Maxwell v. N.L.R.B., 414 F.2d 477, 479 (6th Cir.1969); FTC v. Texaco, 555 F.2d 867, 881 (D.C. Cir. 1977), cert. denied, 431 { U.S. 974 (1977), rehearina denied, 434 U.S. 883 (1977). A change in external circumstances is not required for an agency to exercise its basic right to change a policy decision and apply a new policy to parties to which an old policy applied. United States Department of Enerav. Pro.iect Manaaement Corporation. Tennessee 1 Vallev Authority (Clinch River Breeder Reactor Plant), CLI-82-23, 16 NRC 412, 420 (1982), citina, Maxwell v N.L.R.B., 414 F.2d 477, 479 (6th Cir. 1969). A i An Agency must be free to consider changes that occur in the way it (' perceives the facts, even though the objective circumstances remain unchanged. Clinch River, giora,16 NRC at 420, citina, Maxwell, supra; FTC v. Texaco, 555 F.2d 867, 874 (D.C. Cir. 1977), cert. denied, 431 U.S. 974 (1977), rehearina denied, 434 U.S. 883 (1977). Principles of collateral estoppel, like those of res .iudicata, may be applied in administrative adjudicatory proceedings. U.S. v. Utah Construction and Minino Co., 384 U.S. 394, 421-22 (1966); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-378, 5 NRC 557 (1977); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, remanded on other arounds, CLI-74-12, 7 AEC 203 (1974); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 695 (1982); Public Service Electric and Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 NRC 13, 25 n.40 (1984), citina, Farley, suora; Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 620 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986). Collateral estoppel precludes relitigation of issues of law or fact which have been finally adjudicated by a tribunal of competent juris-diction. Davis-Bessg, suora; Farley, suora. The application of collateral estoppel does not hinge on the correctness of the decision or interlocutory ruling of the first O G tribunal. Moore's Federal Practice, para. 0.405[1] and [4.1) at DECEMBER 1986 HEARINGS 107
S 3.17 629, 634-37 (2d ed. 1974); Davis-Besse, suora. It is enough that the tribunal had jurisdiction to render the decision, that the prior judgment was rendered on the merits, that the cause of action was the same, and that the party against whom the doctrine is asserted was a party to the earlier litigation or in privity with such a party. Davis-Besse, supra. Participants in a proceeding cannot be held j bound by the record adduced in another proceeding to which they were l not parties. Philadelphia Electric Co. (Peach Bottom Station, Units l 2 and 3), Metropolitan Edison Co. (Three Mile Island Station, Unit l 2), Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-640, 13 NRC 487, 543 (1981). In virtually every case in which the doctrine of collateral estoppel was asserted to prevent litigation of a contention, it was held that privity must exist between the intervenor advancing the contention and the intervenor which litigated it in the prior proceeding. General Electric Co. (GETR Vallecitos), LBP-85-4, 21 NRC 399, 404 (1985) and cases cited. But see Cleveland Electric 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24,14 NRC 175, 199-200 (1981). Conversely, that parties to the former action were not joined to the second action does not prevent application of the principle. Dreyfus v. First National Bank of Chicaao, 424 F.2d 1171, 1175 (7th Cir. 1970), cert. denied, 400 U.S. 832 (1970); Hummel v. Eauitable Assurance Society, 151 F.2d 994, 996 (7th Cir. 1945); l Davis-Besse, supra, 5 NRC 557. Where circumstances have changed (as i to context or law, burden of proof or material facts) from when the i issues were formerly litigated or where public interest calls for l relitigation Jf issues, neither collateral estoppel nor res judicata ! applies. Farley, supra, 7 AEC 203; Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), LBP-77-20, 5 NRC 680 (1977); i General Public Utilities Nuclear Coro. (Three Mile Island Nuclear i Station, Unit 1), LBP-86-10, 23 NRC 283, 286 (1986); Carolina Power i and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 537 (1986). Furthermore, under neither principle does a judicial decision become binding on an administrative agency if the legisla-ture granted primary authority to decide the substantive issue in question to the administrative agency. 2 Davis, Administrative Law Treatise, 6 18.12 at pp. 627-28. Cf. US v. Radio Coro, of America, 358 U.S. 334, 347-52 (1959). Where application of collateral estoppel would not affect the Commission's ability to control its internal proceedings, however, a prior court decision may be binding on the NRC. Davis-Besse, suora. In appropriate circumstances, the doctrines of res judicata and collateral estoppel which are found in the judicial setting are equally present in administrative adjudication. One exception is the existence of broad public policy considerations on special public interest factors which would outweigh the reasons underlying the doctrines. Houston Liahtina & Power Co. (South Texas Project, Units 1 & 2), LBP-79-27, 10 NRC 563, 574-575 (1979). DECEMBER 1986 HEARINGS 108
9 3.17 (b/ There is no basis under the Atomic Energy Act or NRC rules for excluding safety questions at the operating license stage on the basis of their consideration at the construction permit stage. The only exception is where the same party tries to raise the same question at both the construction permit and operating license stages; principles of res .iudicata and collateral estoppel then come into play. Houston Liahtina and Power Co.- (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439, 464 (1979); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76,16 NRC 1029, 1044 (1982), citina, Alabama Power Co. (Joseph M. Farley. Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203 (1974). An operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1081 (1982), citina, Alabama Power
.C1,. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CL1-74-12, 7 AEC 203 (1974); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 536 (1986). A contention already litigated between the same parties at the construction permit stage may not be relitigated in an operating license proceeding. Duke Power C2,.
(Catawba Nuclear Station, Units 1 and 2), LBP-82-107A, 16 NRC 1791, 1808 (1982), citina, Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974); Southern California Edison Co. (San Onofre Nuclear Generating (. Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 78-82 (1982); Shearon Harris, suora, 23 NRC at 536. A party which has litigated a particular issue during an NRC proceeding is not collaterally estopped from litigating in a subsequent proceeding an issue which, although similar, is different in degree from the earlier litigated issue. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), LBP-87-17, 25 NRC 838, 849 (1987), aff'd, ALAB-869, 26 NRC 13, 22 (1987), reconsid. denied on other arounds, ALAB-876, 26 NRC 277 (1987). A party countering a motion for summary judgment based on rgi
.iudicata need only recite the facts found in the other proceedings, and need not independently support those " facts." Houston Liahtina
& Power Co. (South Texas Project, Units 1 & 2). ALAB-575, 11 NRC 14, 15 n.3 (1980).
Collateral estoppel requires presence of at least four elements in order to be given effect: (1) the issue sought to be precluded must be the same as that involved in the prior action, (2) the issue must have been actually litigated, (3) the issue must have been determined by a vajid and final judgment, and (4) the deter-mination must have been essential to the prior judgment. Houston Liahtina & Power Co. (South Texas Project, Units 1 & 2), LBP-79-27, p 10 NRC 563, 566 (1979); Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-34, 18 NRC MARCH 1988 HEARINGS 109 L
9 3.17 36, 38 (1983), citina, Elprida Power and Liaht Co. (St. Lucie Plant, Unit 2), LBP-81-58, 14 NRC 1167 (1981); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 536-37 (1986). In I addition, the prior tribunal must have had jurisdiction tc render the l decision, and the party against whom the doctrine of collateral j estoppel is asserted must have been a party or in privity with a 1 party to the earlier litigation. Commonwealth Edison Co. (Braidwood i Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 620 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986); Shearon Harris, suora, 23 NRC at 536. j The doctrine of collateral estoppel traditionally applies cnly when the parties in the case were also parties (or their privies) in the previous case. A limited extension of that doctrine permits l
" offensive" collateral estoppel,1A, the claim by a person not a l party to previous litigation that an issue had already been fully 1 litigated against the defendant and that the defendant should be held to the previous decision because he has already had his day in court. Parklane Hosierv Co.. Inc. v. Leo M. Shore, 439 U.S. 322 (1979). At least one Licensing Board has held that, in operating ,
license proceedings, estoppel may also be applied defensively, to i preclude an intervenor who was not a party from raising issues I litigated in the construction permit proceeding. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175, 199-201 (1981). This would not appear to be wholly consistent with the Appeal Board's ruling in Philadelphia i Electric Co. (Peach Bottom Station, Units 2 and 3), Metropolitan Edison Co. (Three Mile Island Station, Unit 2), Public Service ; Electric and Gas Co. (Hope Creek Station, Units 1 and 2), ALAB-640, { 13 NRC 487, 543 (1981). The Licensing Board which conducted the San Onofre operating license hearing relied upon similar reasoning. The Board held i that, although " identity of the parties" and " full prior adjudi- ! cation of the issues" are textbook elements of the doctrines of l res judicata and collateral estoppel, they are not prerequisites to foreclosure of issues at the operating stage which were or could have been litigated at the construction permit stage. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 NRC 61, 82 (1982). When an issue was known at the construction permit stage and was the subject of intensive scrutiny, anyone who could have (even if no l one had) litigated the issue at that time can not later seek to do so at the operating license hearing without a showing of changed circumstances or newly discovered evidence. _ San Onofre, supra, 15 NRC at 78-82. The Appeal Board subsequently found that the Licensing Board had erred. Southern California Edison
.Ch (San Onofre Nuclear Generating Station, Units 2 and 3),
ALAB-673, 15 NRC 688, 694-696 (1982); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 353-354 (1983). The doctrines of r_ese judicata, collateral estoppel and privity provide the appropriate MARCH 1988 HEARINGS 110 I l
9 3.17 l v bases for determining when concededly different persons or groups should be treated as having their day in court. There is no public policy reason why the Agency's administrative proceedings warrant a looser standard. San Onofre (ALAB-673), supra, 15 NRC at 696. The Appeal Board also disagreed with the Licensing Board's statement that organizations or persons who share a general point of view will adequately represent one another in NRC proceedings. San Onofn (ALAB-673), supra, 15 NRC at 695-696. The standard for determining whether persons or organizations are so closely related in interest as to adequately represent one another is whether legal accountability between the two groups or virtual rep ~esentation of one group by the other is shown. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-34,18 NRC 36, 38 n.3 (1983), citina, Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 and 2), ALAB-673, 15 NRC 688, 695-96 (1982) (dictum). An operating license Board will not apply collateral estoppel to an issue which was considered during an uncontested construction permit hearing. When there are no adverse parties in the construction permit hearing, there can be neither privity of parties nor " actual litigation" of the issue sufficient to support reliance on collateral
-m estoppel. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-ll, 21 NRC 609, 622-624 (1985), rev'd and (d \
remanded on other arounds, CLI-86-8, 23 NRC 241 (1986), citina, Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 694-696 (1982). An intervenor in an operating license proceeding, who was not a party in the construction permit proceeding, is not collaterally otopped from raising and relitigating issues which were fully ir+ed.igated in the construction permit proceeding. However, the intervent has the burden of providing even greater specificity than normally required for its contentions. The intervenor must specify how circumstances have changed since the construction parmit proceeding or how the Licensing Board erriJ in the construction permit proceeding. Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Acency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 539-40 (1986). Cf. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 590-91 (1985). See aenerally Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 354 n.5 (1983). Where the legal standards of two statutes are significantly dif-ferent, the decision of issues under one statute does not give rise to collateral estoppel in litigation of similar issues under a different statute. Houston Liahtina & Power Co (South Texas O Project, Units 1 & 2), LBP-29-27, 10 NRC 563, 571 (1979). SEPTEMBER 1987 HEARINGS 111
i 9 3.18 l The Commission will give effect to factual findings of Federal courts and sister agencies when those findings are part of a final judgment, even when the party seeking estoppel effect was not a party to the initial litigation. Although the application of collateral estoppel , would be denied if a party could have easily joined in the prior ' litigation, the Commission will apply collateral estoppel even though it is alleged that a party could have joined in, if the prior litigation was a complex antitrust case. Furthermore, FERC deter-minations about the applicability of antitrust laws are sufficiently similar to Commission determinations to be entitled to collateral estoppel effect. Even a shift in the burden of persuasion does not exclude the application of collateral estoppel when it is apparent that the FERC opinion did not arrive at its antitrust conclusions l l because of the burden of persuasion. On the other hand, the decision ; of a Federal district court on a summary judgment motion is not a final judgment entitled to collateral estoppel effect, particularly I when the court did not fully explain the grounds for its opinion and l when its decision was issued after the hearing board had already j begun studying the record and had formed factual conclusions which I were not adequately addressed in the district court's opinion. l Florida Power and Licht Co. (St. Lucie Plant, Unit 2), LBP-81-58, ; 14 NRC 1167, 1173-80, 1189-90 (1981). l Sumary disposition may be denied on the basis of res .iudicata and collateral estoppel. Houston Liahtina & Power Co. (South Texas ! Project, Units 1 & 2), ALAB-575, 11 NRC 14 (1980), affirmina, LBP- ! 79-27, 10 NRC 563 (1979). ) 3.18 Termination of Proceedings 3.18.1 Procedures for Termination Termination of adjudicatory proceedings on a construction permit application should be accomplished by a motion filed by applicant's counsel with those tribunals having present jurisdiction over the proceeding. A letter by a lay official to the Commission when the Licensing Board has jurisdiction over the matter is not enough. Toledo Edison Comoany (Davis-Besse Nuclear Power Station, Units 2 and 3), ALAB-622, 12 NRC 667, 668-9 (1980). 3.18.2 Post-Termination Authority of Comission 10 CFR 9 2.107(a) expressly empowers Licensing Boards to impose conditions upon the withdrawal of a permit or license application after the issuance of a notice of hearing. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 2 and 3), ALAB-622, 12 NRC 667, 669 n.2 (1980). O SEPTEMBER 1987 HEARINGS 112
I 1: , TABLE OF CONTENTS POST HEARING MATTERS 4.0 POST HEARING MATTERS PH l' 4.1 Settlements and Stipulations PH 1 4.2 Proposed Findinos PH 1 4.2.1 Intervenor's Right to File Proposed Findings PH 2 4.2.2 Failure to File Proposed Findings PH 2 4.3 Initial Decisions PH 3 4.3.1 Reconsideration of Initial Decision PH 6 4.4 Reopenina Hearinas PH 7 4.4.1 Motions to Reopen Hearing PH 9.
'4.4.1.1 Time for Filing Motion to Reopen Hearing PH 11 4.4.1.2. Contents of Motion to Reopen Hearing (Reserved) PH 13 4.4.2 Grounds for Reopening Hearing (SEE ALSO 3.13.3) PH 13 r 4.4.3 Reopening Construction Permit Hearings to Address New
( Generic Issues PH 20 L 4.4.4 Discovery to Obtain Information to Support Reopening of Hearing PH 20 4.5 . Motions to Reconsider PH 20 4.6 fua Soonte Review by the Appeal Board PH 21 4.7 !!otions for Post-Judament Relief PH 25 JUNE 1988 POST HEARING MATTERS - TABLE OF CONTENTS i
$ 4.2 q O 4.0 POST HEARING MATTERS 4.1 Settlements and Stipulations I 10 CFR S 2.759 expressly provides, and the Commission stresses, that the fair and reasonable settlement of contested initial licensing proceedings is encouraged. Philadelphia Electric Company (Peach Bottom Atomic Power Station, Unit 3), ALAB-532, 9 NRC 279, 283 (1979). This was reiterated in the Commission's Statement of Policy on Conduct of Licensina Proceedings, CLI-81-0, 13 NRC 452, 456 (1981).
4.2 P_tgposed Q @ gi Each party to a proceeding may file proposed findings of fact and conclusions of law with the Licensing Board. Despite the fact that a-number of older cases have held that a Licensing Board is not required to rule specifically on each finding proposed by the parties (ieg Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-83, 5 AEC 354, 369 (1972), aff'd sub nom., Union of Concerned Scientists v. AEG, 499 F.2d 1069 (D.C. Cir. 1974); Wisconsin Electric Power Co. (Point Beach Nuclear Power Station, Unit 2), ALAB-78, 5 AEC 319, 321 (1972)), the Appeal Board has indicated that a Licensing Board must clearly state the basis for its decision and, in particular, state i reasons for rejecting certain evidence in reaching the decision. ( Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977). 10 CFR 9 2.754 permits the Licensing Board to vary its regularly provided procedures by altering the ordinary regulatory schedule for findings of fact. The NRC Staff is permitted to consider the position of other parties before finalizing its position. Consumers Power Co. (Big Rock Point Plant), LBP 51A, 16 NRC 180, 181 (1982). 10 CFR 6 2.754(c) requires that a party's proposed findings of fact and conclusions of law be confined to the material issues of fact and law presented on the record. Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981). However, unless a board has previously required the filing of all arguments, a party is not precluded from presenting new arguments in its proposed findings of fact. Texas Utilities Generatina Ch (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 18 NRC 1410, 1420-1421 (1983), reconsid. denied sub nom. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-10, 19 NRC 509, 517 (1984). Requiring the submission to a Licensing Board of proposed find-ings of fact or a comparable document is not a mere formality: it gives that Board the benefit of a party's arguments and per-mits it to resolve them in the first instance, possibly in the party's favor, obviating later appeal. Consumers Power Co. k JUNE 1986 POST HEARING MATTERS 1
(Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897, 906-907 (1982). Where an intervenor chooses to file proposed findings, the Board is entitled to take that filing as setting forth all of the issues that were contested. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 371 (1983). 4.2.1 Intervenor's Right to File Proposed Findings An intervenor may file proposed findings with respect to all issues whether or not raised by his own contentions. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 863 (1974). 4.2.2 Failure to File Proposed Findings Consistent with 10 CFR s 2.754(b), contentions for *ahich I findings have not been submitted may be treated es having i been abandoned. Cincinnati Gas and Electric Co. (Wm, H. j Zimmer Nuclear Power Station, Unit 1), LBP-82-48,15 NRC i 1549, 1568 (1982). The Appeal Board is not required to review exceptions made by a party who has failed to file proposed findings on the issues with respect to which the exceptions are taken. Florida Power
& Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3, 4 n.2 (1975); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 964 (1974).
A Licensing Board in its discretion may refuse to rule on an l issue in its initial decision if the party raising the issue has not filed proposed findings of f act and conclusions of law. Statement of Policy on Conduct of_Licensino Proceedings, CLI-81-8, 13 NRC 452, 457 (1981). A party that fails to submit proposed findings as requested by a Licensing Board, relying instead on the submission of others, assumes the risk that such reliance might be mis-placed; it must be prepared to live with the consequence that its further appeal rights will be waived. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 907 (1982). The filing of proposed findings of fact is optional, unless the presiding officer directs otherwise. The presiding officer is empowered to take a party's failure to file proposed findings, when directed to do so, as a default. Detroit Edison Co. (Enrico Fermi Atomic Power DECEMBER 1985 POST HEARING MATTERS 2
~
9 4.3 O Plant, Unit 2), ALAB-709,17 NRC 17, 21 (1983); Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, 61 n.3 (1984). Egg Metropolitan Edison Ch (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193, 1213 n.18 (1984), rev'd in part on other arounds, CLI-85-2, 21 NRC 232 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-84-47, 20 NRC 1405,1414 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-87-13, 25 NRC 449, 452-53 (1987). 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. Fermi, supra, 17 NRC at 23, citina, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 332-33 (1973). The failure to file proposed findings 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 9 2.754. Fermi, suora, 17 NRC at 23. Absent a Board order requiring the submission of proposed findings, an intervenor that does not make such a filing is A free to pursue on appeal all issues it litigated below. The ( ) setting of a schedule for filing proposed findings falls short b' of an explicit direction to file findings and thus does not form the basis for finding a party in default. 39uthern California Edison Co2 (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 371 (1983), citina, 10 CFR S 2.754; Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17, 21 (1983). 4.3 Initial Decisions After the hearing has been concluded and proposed findings have been filed by the parties, the Licensing Board will issue its initial decision. This decision can conceivably constitute the ultimate agency decision on the matter addressed in the hearing provided that it is not modified by subsequent Appeal Board and/or Commission review. Under recent amendments to 10 CFR 9 2.764, the Licensing Board's decision authorizing issuance of an operating license is to be considered automatically stayed until the Commission completes a sua sponte review to determine whether to stay the decision. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-647, 14 NRC 27, 29 (1981). (Prior to the amendment, an initial decision authorizing issuance of a construction permit (or operating license) was effective when issued, unless stayed. Consumers Power Co. (Midland Plant, i Units 1 & 2), ALAB-458, 7 NRC 155, 170 (1978). Such decisions O were presumptively valid and, unless or until they were stayed
) or overturned by appropriate authority, were entitled to full SEPTEMBER 1987 POST HEARING MATTERS 3
5 4.3 recognition. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-423, 6 NRC 115, 117 (1977)). On November 5, 1979, the Commission amended its Rules of Practice adding to 10 CFR Part 2 an Appendix B (44 Fed. Rea. 65050; November 9, 1979), which temporarily suspended the operation of 10 CFR 9 2.764 and provided that Licensing Board decisions "shall not become effective until the Appeal Board and Commission actions outlined [in the Appendix] have taken place." On May 28, 1981, 10 CFR 9 2.764 was amended to incorporate the provisions of Appendix B. In relevant part, 10 CFR S 2.764 now provides for Appeal Board 3 review, within 60 days of any Licensing Board decision that would 1 otherwise authorize licensing action, of any stay motions timely filed. If none are filed, the Appeal Board is to conduct a 1_qa soonte review and decide whether a stay is warranted. In so deciding the Appeal Board is to be guided by 10 CFR 9 2.788, and in addition give attention to whether issuance of the license or permit prior to full administrative review might: (1) create novel safety or environmental issues in light of the TMI accident; or (2) prejudice review of significant safety or environmental issues. Duke Power Co. (William B. McGuire Nuclear Station, Units I and 2), ALAB-626, 13 NRC 17, 18 (1981). In McGuire, the Appeal Board found that an ! unpublished Licensing Board order authorizing fuel loading, initial ' criticality, and zero-power physics testing was an order authorizing ,
" licensing action" within the ambit of (then) Appendix B (now Section
" 764). In contrast, a partial initial decision in a construction permit proceeding which addressed all matters except emergency planning and THI-2 related issues (on which evidentiary hearings were .
yet to be held) was not considered a decision providing the under- j pinning of " licensing action." Boston Edison Co. (Pilgrim Nuclear l Station, Unit 2), ALAB-632, 13 NRC 91, 92 (1981). 4 The Commission's "immediate effectiveness" regulation,10 CFR 6 2.764 (1982), as amended, 47 Fed. Rea. 2286 (January 15,1982), requires in the case of construction permits, certain limited and immediate Appeal Board and Commission review -- and, in the case of operating licenses, Commission review only -- of an initial decision before it can become effective. Offshore PoEer Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-686,16 NRC 454, 456, CLI-82-37, 16 NRC 1691 (1982). 10 CFR s 2.764(a) was intended to apply to an initial decision authorizing issuance of a license for a manuf acturing license. It is for this reason alone that a Licensing Board decision on i a manufacturing license can become effective before it becomes ! final. 10 CFR G 2.764(e) does not apply to manufacturing licenses. Because the issuance of a manufacturing license does not conclude the construction permit process, such a license does not present health and safety issues requiring immediate review. Cf. 46 Fed. Rea. 47764, 47765 (September 30,1981). A manufacturing license can become effective before it becomes SEPTEMBER 1987 POST HEARING MATTERS 4 _ - _ _ l
p 9 4.3 final, and neither the Appeal Board nor the Commission need undertake an immediate effectiveness review of a Licensing Board decision authorizing the issuance of a manufacturing license. Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), CLI-82-37, 16 NRC 1691 (1982). A Licensing Board's initial decision must be in writing. Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 727 n.61 (1985), citina, 10 CFR S 2.760(c). Although a Board's initial decision may refer to the transcript of its oral bench rulings, such practice should be avoided in compli-cated NRC licensing hearings because it is counterproductive to meaningful appellate review. Limerick, suora, 22 NRC at 727 n.61. The findings and initial decision of the Licensing Board must be supported by reliable, probative and substantial evidence on the record. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184,1187 (1975). The initial decision must contain record citations to support the findings. Virainia Electric & Power Co. (North Anna Power Station, Units 1, 2, 3 & 4), ALAB-256, 1 NRC 10, 14 n.18 (1975). Of course, a Licensing Board's decision cannot be based on factual material that has not been introduced and admitted into evidence. Otherwise the parties would be deprived of the opportunity to impeach the evidence through O cross-examination or to rebut it with other evidence. Tennessee (L Valley Authority (Hartsville Nuclear Plant, Units IA, 2A,18, & 2B), ALAB-463, 7 NRC 341, 351-52 (1978). Licensing Boards have a general duty to insure that initial decisions contain a sufficient exposition of any ruling on a contested issue of law or fact to enable the parties and a reviewing Appeal Board to readily apprehend the foundation of the ruling. This is not a mere procedural nicety but it is a necessity if the Appeal Board is to efficiently carry out its review responsibility. Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 10-11 (1976); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-104, 6 AEC 179 n.2 (1973). Clarity of the basis for the initial decision is important. In circumstances where a Licensing Board bases its ruling on an important issue on considerations other than those pressed upon it by the litigants themselves, there is especially good reason why the foundation for that ruling should be articulated in reasonable detail. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408, 414 (1976). When resort is made to technical language which a layman could not be expected to readily understand, there is an obligation on the part of the opinion writer to make clear the precise significance of what is being said in terms of what is being decided. Arizona Public Service /3 Co. (Palo Verde Nuclear Generating Station, Units 1, 2 & 3), ALAB-Q 336, 4 NRC 3 (1976). SEPTEMBER 1987 POST HEARING MATTERS 5
S 4.3.1 The requirement that a Licensing Board clearly delineate the basis for its initial decision was emphasized by the Appeal Board in Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977). Therein, the Appeal Board stressed that the Licensing Board must sufficiently inform a party of the disposi-tion of its contentions and must, at a minimum, explain why it rejected reasonable and apparently reliable evidence contrary to the Board's findings. Thus, a prior Licensing Board ruling in Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), LBP-77-7, 5 NRC 452 (1977), to the effect that a Board need not justify its findings by discounting proffered testimony as unreliable appears to be in error insofar as it is contrary to the Appeal Board's guidance in Seabrook. Although normally the Appeal Board is disinclined to examine the record to determine whether there is support for conclusions which the Licensing Board failed to justify, it evaluated evidence in one case because (1) the Licensing Board's decision preceded the Appeal Board's decision in Seabrook which clearly established this policy, and (2) it did not take much time for the Appeal Board to conduct its own evaluation. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A,18 and 2B), ALAB-463, 7 NRC 341, 368 (1978). l In certain circumstances, time may not permit a Licensing Board to , prepare and issue its detailed opinion. In this situation, one f approach is for the Licensing Board to reach its conclusion and make a ruling based on the evidentiary record and to issue a subsequent detailed decision as time permits. The Appeal Board tacitly approved this approach in Public Service Electric & Gas Co. (Hope Creek i Generating Station, Units 1 & 2), ALAB-460, 7 NRC 204 (1978). This l approach has been followed by the Commission in the GESMO proceeding. ; See Mixed 0xide Fuel, CLI-78-10, 7 NRC 711 (1978). { i It is the right and duty of a Licensing Board to include in its decision all determinations of matters on an appraisal of the record before it. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577, 11 NRC 18, 30 (1980), gndified, CLI-80-12, 11 NRC 514 (1980). Partial initial decisions on certain contentions favorable to an applicant can authorize issuance of certain permits and licenses, , such as a low-power testing license (or, in a construction permit I proceeding, a limited work authorization), notwithstanding the pendency of other contentions. Lona Island Liahtino Co. (Shoreham ) Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1137 (1983). l 4.3.1 Reconsideration of Initial Decision A Licensing Board has inherent power to entertain and , grant a motion to reconsider an initial decision. l MARCH 1986 POST HEARING MATTERS 6
l ! ! I gg Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-235, 8 AEC 645, 646 (1974). (See also 4.5) A.n authorized, timely-filed petition for reconsideration before the trial tribunal may work to toll the time period under 10 CFR s 2.762(a) for filing an appeal. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-659, 14 NRC 983, 985 (1981). A motion for reconsideration should not include new arguments or evidence unless a party demonstrates that its new material relates to a Board concern that could not reasonably have been anticipated. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-10, 19 NRC 509, 517-18 (1984). 4.4 Reopenina Hearinas Hearings may be reopened, in appropriate situations, either upon motion of any party or sua sconte. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358 (1973). Sua soonte reopening is required when a Board becomes aware, from any source, of a significant unresolved safety issue, Vermont n Yankee, supra, or of possible major changes in facts material to the resolution of major environmental issues. (pmmonwealth Edison Co. (v) (LaSalle County Nuclear Station, Units 1 & 2), ALAB-153, 6 AEC 821 Where factual disclosures to the Appeal Board reveal a need (1973). for further development of an evidentiary record, it may order that the record be reopened for the taking of supplementary evidence. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 18 and 2B), ALAB-463, 7 NRC 341, 352 (1978). For reopening the record, the new evidence to be presented need not always be so significant that it would alter the Board's findings or conclusions when the taking of new evidence can be accomplished with little or no burden upon the parties. To exclude otherwise competent evidence be-cause the Board's conclusions may be unchanged would not always satisfy the requirement that a record suitable for review be preserved (10 CFR 9 2.756). _Qarolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1-4), LBP-78-2, 7 NRC 83, 85 (1978). An Appeal Board might be sympathetic to a motion to reopen a hearing if documents appended to an appellate brief constituted newly discovered evidence and tended to show that significant testimony in the record was false. Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3); (Perry Nuclear Power Plant, Units 1 and 2), ALAB-430, 6 NRC 457 (1977). New regulatory requirements may establish good cause for reopening a record or admitting new contentions on matters related to the new , requirement. Pacific Gas and Electric Co. (Diablo Canyon Nuclear p). (v Power Plant, Units 1 and 2), LBP-81-5,13 NRC 226, 233 (1981). MARCH 1986 POST HEARING MATTERS 7
1 l
'S 4.4 Where a record is reopened for further development of the evidence, ;
all parties are entitled to an opportunity to test the new evidence I and partic%te fully in the resolution of the issues involved. { Florida PoA 1 Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), i ALAB-355, 3 NRC 830 (1976). Permissible inquiry through cross- 1 examination at a reopened hearing necessarily extends to every l matter within the reach of the testimony submitted by the applicants ! and accepted by the Board. Public Service Company of New Hampshjf._q (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 94 (1977), l A Licensing Board lacks the power to reopen a proceeding once final agency action has been taken, and it may not effectively " reopen" a proceeding by independently initiating a new adjudicatory proceeding. Houston Liahtina & Power Co. (South Texas Project, Units 1 & 2), ALAB-381, 5 NRC 582 (1977). An Appeal Board, unlike other appellate tribunals, has the option of reopening the record and receiving new evidence itself, if necessary, obviating remand to a Licensing Board. Metropolitan Edison Co. 4 (Three Mile Island Nuclear Station, Unit No.1), ALAB-699,16 NRC j 1324, 1327 (1982). S1q, e.a., Pacific Gas and Electric Co. (Diablo ; Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598,11 NRC 876, ! 878-879 (1980). l An Appeal Board has no jurisdiction to consider a motion to reopen I the record in a proceeding where the Appeal Board has issued its final decision and a party has already filed a petition for Commis-sion review of the decision. The Appeal Board will refer the motion ) to reopen the record to the Commission for consideration. Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-823, 22 NPC 773, 775 (1985). ; The Appeal Board dismissed for want of jurisdiction a motion to reopen hearings in a proceeding in which the Appeal Board had issued a final decision, followed by the Commission's election not to review that decision. The Commission's decision represented the agency's final action, thus ending the Appeal Board's authority over the case. The Appeal Board referred the matter to the Director of ' Nuclear Reactor Regulation because, under the circumstances, he had the discretionary authority to grant the relief sought subject to Commission review. Eublic Service Company of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-530, > " 2 61, 262 (1979). See Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753,18 NRC 1321,1329-1330 (1983). The fact that certain issues remain to be litigated does not absolve an intervener from having to meet the standards for reopening the completed hearing on all other radiological health and safety issues in order to raise a new non-emergency planning contention. Lqng Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1138 (1983). MARCH 1986 POST HEARING MATTERS 8 j
i l ey g 4.4.1
)
v' 4.4.1. Motions to Reopen Hearing v A motion to reopen the hearing can be filed by any party to the proceeding. The motion need not be supported by an affidavit and the movant is free to rely on, for example, Staff-applicant correspondence to establish the existence of a newly discovered issue. Vermon* Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Statcon), ALAB-124, 6 AEC 358 (1973). A movant may also rely upon documents generated by the applicant or the NRC Staff in connection with the construction and regulatory oversight of the facility. Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 17 & n.7 (1985), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363 (1981). As is well settled, the proponent of a motion to reopen the record has a heavy burden to bear. Kansas Gas & Electric Comnany (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-359, 4 NRC 619, 620 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 180 (1983); Cleveland Electric Illuminating A (Perry Nuclear Power Plant, Units 1 and 2), LBP-84-3,19 7 NRC 282, 283 (1984); Louisiana Power and Licht Co. (Waterford (3) Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 14 (1985); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-42, 22 NRC 795, 798 (1985); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986); Florida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-87-21, 25 NRC 958, 962 (1987). Where a motion to reopen relates to a previously uncon-tested issue, the moving party must satisfy both the standards for admitting late-filed contentions, 10 CFR s 2.714(a), and the criteria established by case law for reopening the record. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-82-39, 16 NRC 1712, 1714-15 (1982), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361 (1981); Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1325 n.3 (1983); Louisiana Power , and Liaht Co. (Waterford Steam Electric Station, Unit 3), ! ALAB-812, 22 NRC 5, 14 & n.4 (1985); Houston Lichtino and l Power Co. (South Texas Project, Units 1 and 2), LBP-85-42, 22 NRC 795, 798 & n.2 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 17 (1986); Philadelphia Electric Co. (Limerick
/ Generating Station, Units 1 and 2), CLI-86-6, 23 NRC 130, (3) 133 n.1 (1986); Public Service Co. of New tlamoshire SEPTEMBER 1987 POST HEARING MATTERS 9
S 4.4.1 ' (Seabrook Station, Units 1 and 2), LBP-87-3, 25 NRC 71, 76 and- i n.6 (1987). The new material in support of a motion to reopen must be set forth with a degree of particularity in excess of the basis and specificity requirements centained in 10 CFR 2.714(b) for admissible contentions. ILa.gific a Gas and Electric Co; (Diablo Canyon Nuclear Power Plant. Units 1 and 2), ALAB-775,19. NRC 1361, 1366 (1984), aff'd sub. nom. San Luis Obisoo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff'd on reh'a en banc, 789 F.2d 26 (1986). The supporting information must be more than mere allegations, it must be tantamount to evidence which would materially affect the previous decision. L ; Florida Power and liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-87-21, 25 NRC 958, 963 (1987). To satisfy this requirement, it must possess the attributes set forth in 10 CFR 9 2.743(c) which defines admissible evidence as " relevant, material, and reliable."
& at 1366-67; Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986). Embodied in this requirement is the idea that evidence presented in affidavit form must be given by competent individuals with knowledge of the facts or by experts in the disciplines appropriate to the issues raised.
Id. at 1367 n.18; Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 14, 50 > n.58 (1985); Turkey Point, supra, 25 NRC at 962. Even though a matter is timely raised and involves significant safety considerations, no reopening of the evidentiary hearing will be required if the affidavits submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact, iA, if the undisputed facts establish that the apparently significant safety issue does not exist, has been resolved, or for some other reason will have no effect upon the outcome of the licensing proceeding. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41, 18 NRC 104, 109 (1983). Exhibits which are illegible, unintelligible, undated or outdated, or unidentified as to their source have no probative value and do not support a motion to reopen. In order to comply with the requirement for " relevant, material, and reliable" evidence, a movant should cite to specific portions of the exhibits and explain the points or purposes which the exhibits serve. Louisiana Power and liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 21 n.16, 42-43 (1985), citina, Diablo Canyon, ALAB-775, suora, l's NRC at 1366-67. O SEPTEMBER 1987 POST HEARING MATTERS 10
1 i i
-i gy 6 4.4.1.1 ; a (f A draft document 'does no't provide particularly useful support for a motion to reopen. A draft is a working document which may reasonably undergo several revisions before it is- )
finalized to reflect the actual intended position of the preparer. Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22-NRC 5, 43 n.47 (1985). i Where a motion to reopen is related to a litigated issue, the effect of the new evidence on the outcome of.that issue can be. < examined before or after a decision. To the extent a motion to reopen is not related to a litigated ' issue, then the outcome to be judged is not that of a particular issue, but that of the action which may be permitted by the outcome of t'ne licensing proceedings. Lobo Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30, 17 NRC 1132, 1142 (1983), citina, Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). 4.4.1.1 Time for Filing Motion to Reopen Hearing A motion to reopen may be filed and the Licensing Board may entertain it at any time prior to issuance of the full initial decision. Wisconsin Electric Power Co. (Point Beach Nuclear g Plant, Unit 2), ALAB-86, 5 AEC 376 (1972). Where a motion to j\ reopen was mailed before the Licensing Board rendered the final decision but was received by the Board after the decision,'the Board denied the motion on grounds that it lacked jurisdiction to take any action. The Appeal Board implied that this may be incorrect (referring to 10 CFR s 2.712(d)(3) concerning service by mail), but did not reach the jurisdictional question since the motion was properly denied on tha merits. Northern States Power ComDanV (Tyrone ; Energy Park, Unit 1), ALAB-464, 7 NRC 372, 374 n.4 (1978). ! Point Beach, supra, does not establish an ironclad rule with respect to timing of the motion. In deciding whether to reopen, the Licensing Board will consider both the timing of the motion and the safety significance of the matter which has been raised. The motion will be denied if it is untimely and the matter raised is insignificant. The motion may be denied, even if timely, if the matter raised is not grave or significant. If the matter is of great significance to public or plant safety, the motion could be granted even if it was not made in a timely manner. As such, the controlling consideration is the seriousness of the issue raised. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); Vermont Yankee, ALAB-126, 6 AEC 393 (1973); Vermont Yankee, ALAB-124, 6 AEC 365 (1973). See also Philadelphia Electric Co. (Limerick O Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, SEPTEMBER 1987 POST HEARING MATTERS 11 1
9 4.4.1.1 19 (1986) (most important factor to consider is the safety i significance of the issue raised); Philadelphia Electric Co. (Limerick Generating Station, Units 1 aid 2), ALAB-834, 23 NRC 263, 264 (1986). When timeliness is a factor, it is to be- 1 judged from the date of discovery of the new issue. l An untimely motion to reopen the record may be granted, but 3 the movant has the increased burden of demonstrating that the motion raises an exceptionally grave issue rather than just a I significant issue. Public Service Co. of New Hamoshire l (Seabrook Station, Units 1 and 2), ALAB-886, 27 NRC 74, 76, 78 (1988), citina, 10 CFR 9 2.734(a)(1). A Board will reject as untimely a motion to reopen which is based on information which has been available to a party for i one to two years. Metropolitan Edison Co. (Three Mile Island { Nuclear Station, Unit 1), ALAB-815, 22 NRC 198, 201 (1985). i For a reopening motion to be timely presented, the movant must i show that the issue sought to be raised could not have been 1 raised earlier. Pacific Gas and Electric Co. (Diablo Canyon ! Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, ) 1366 (1984), aff'd sub. nom. San Luis Obisoo Mothers for Peace 1
- v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff'd on reh'a en j banc, 789 F.2d 26 (1986); Metropolitan Edison Co. (Three Mile ]
Island Nuclear Station, Unit 1), ALAB-815, 22 NRC 198, 202 l (1985). See Detroit Edison Co. (Enrico Ferm) Atomic Power j Plant, Unit 2), ALAB-707,16 NRC 1760,1764-65 (1982). A i party cannot justify its tardiness in filing a motion to I reopen by noting that the Board was no longer receiving evidence on the issue when the new information on that issue became available. Three Mile Island, supra, 22 NRC at 201-02. A party's opportunity to gain access to information is a significant factor in a Board's determination of whether a motion based on such information is timely filed. Houston _Lichtina and Power Co. (South Texas Project, Units 1 and 2), j LBP-85-19, 21 NRC 1707, 1723 (1985), citina, Cleveland Electric Illuminating Co2 (Perry Nuclear Power Plant, Units 1 and 2), LBP-83-52, 18 NRC 256, 258 (1983). See also Diablo l Canyon, suora, 19 NRC at 1369. A matter may be of such gravity tnat a motion to reopen may be granted notwithstanding that it might have becn presented earlier. tietropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738,18 NRC 177, 188 n.17 (1983), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985), citina, Vermont Yankee Nuclear Power [ pro. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, JUNE 1988 POST HEARING MATTERS 12 l l
i j L < 9 4.4.2 _) 21 NRC 1707, 1723 (1985); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-45, 22 NRC 819,
.)
822, 826 (1985). .j The Vermont Yankee tests for reopening the evidentiary record l are only partially applicable where reopening the record is the Board's sua soonte action. The Board has broader responsi-bilities than do adversary parties, and the timeliness test of ; Vermont Yankee does not apply to the Board with the same force ( as it does to parties. .C_ittg. lina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1-4), LBP-78-2, 7 NRC 83, 85 (1978). Where jurisdiction terminated on all but a few issues, a Board may not entertain new issues unrelated to those over which it retains jurisdiction, even where there are supervening devel-opments. The Board has no jurisdiction to consider such matters. Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579, 11 NRC 223, 225-226 (1980). Once an appeal has been filed, jurisdiction over the appealed issues passes to the appellate tribunal and motions to reopen on the appealed issues are properly entertained by the appel-late tribunal. Metropolitan Edison Co. (Three Mile Island Nu-clear Station, Unit 1), ALAB-699, 16 NRC 1324, 1326-27 (1982). i 4.4.1.2 Contents of Motion to Reopen Hearing w.- ) (RESERVED) 4.4.2 Grounds for Reopening Hearing A decision as to whether to reopen a hearing will be made on the basis of the motion and the filings in opposition thereto, all of which amount to a " mini record." Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 523 (1973), reconsid. den., ALAB-141, 6 AEC 576. The hearing must be reopened whenever a "significant", unresolved safety question is involved. Vermont Yankee, ALAB-138, supra; Vermont Yankee, ALAB-124, 6 AEC 358, 365 n.10 (1973). The same " significance test" applies when an environmental issue is involved. Georaia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404 (1975); Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 & 2), ALAB-153, 6 AEC 821 (1973). (See also 3.13.3). Matters to be considered in determining whether to reopen an evidentiary record at the request of a party, as set j forth in Vermont Yankee Nuclear Power Corp. (Vermont ' Yankee Nuclear Power Station), ALAB-138, 6 AEC 520 (1973), are whether the matters sought to be addressed on the
, reopened record could have been raised earlier, whether such matters require further evidence for their resolution, (Q) and what the seriousness or gravity of such matters is.
JUNE 1988 POST HEARING MATTERS 13
L 5 4.4.2 Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1-4), LBP-78-2, 7 NRC 83 (1978). As a general proposition, a hearing should not be reopened merely because some detail involving plant construction or operation has been changed. Rather, to reopen the record at the request of a. party, it must usually be established that a different result would have been reached initially had the material to be introduced on reopening been considered. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978); Northern Indiana Public Service A (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974); Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 465 (1982); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775,19 NRC 1361,1365-66 (1984), ; aff'd sub. nom. San Luis Obispo Mothers for Peace v. NRC, 751 1 F.2d 1287 (D.C. Cir.1984), aff'd on reh'a en banc, 789 F.2d j 26 (1986). In fact, an Appeal Board has stated that, after a , decision has been rendered, a dissatisfied litigant who seeks l to persuade an adjudicatory tribunal to reopen the record '
"because some new circumstance has arisen, some new trend has j been observed or some new fact discovered" has a difficult l burden to bear. Duke Power Co. (Catawba Nuclear Station, )
Units 1 & 2), ALAB-359, 4 NRC 619, 620 (1976). At the same i tinie, new regulatory requirements may establish good cause for ' reopening a record or admitting new contentions on matters related to the new requirement. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-81-5, 13 NRC 226, 233 (1981). ! Unlike applicable standards with respect to allowing a new, , timely filed contention, the Licensing Board can give some consideration to the substance of the information sought to be added to the record on a motion to reopen. Consumers Power i Co. (Midland Plant, Units 1 and 2), LBP-84-20,19 NRC 1285, 1299 n.15 (1984), citina, Vermont Yankee, ALAB-138, supra, 6 AEC at 523-24. l Where a motion to reopen an evidentiary hearing is filed after the initial decision, the standard is that the motion must establish that a different result would have been reached had the respective information been considered initially. l Where the record has been closed but a motion was filed before the initial decision, the standard is whether the outcome of the proceeding might be affected. Commonwealth Edison Co. (Byron Nuclear Power Station, Units I and 2), LBP-83-41,18 NRC 104, 108 (1983). In certain instances the record may be reopened, even though the new evidence to be received might not be so significant as to alter the original findings or conclu-sions, where the new evidence can be received with little or no burden upon the parties. Carolina Power & Liaht JUNE 1988 POST HEARING MATTERS 14
i ,n i v; 9 4.4.2 [L (Shearon Harris Nuclear Power Plant, Units 1-4), LBP-7G-2, 7 NRC 83, 85 (1978). Reopening has also been ordered where the changed circumstances involved a hotly contested issue. Northern Indiana Public Service Cos (Bailly Generating Station, Nuclear-1), CLI-74-39, 8 AEC o31 (1974). Moreover, considerations of fairness and of affording a party a proper opportunity to ventilate the issues sometimes dictate that a hearing be reopened. For example, where a Licensing Board maintained its hearing schedule despite an intervenor's assertion that he was unable to attend the hearing and prepare for cross-examination, the Appeal Board held that the hearing must be reopened to allow the intervenor to conduct cross-examination of certain witnesses. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-249, 8 AEC 980 (1914). The proponent of a motion to reopen the record bears a heavy burden. Normally, the motion must be timely and addressed to a significant issue. If an initial decision has been rendered on the issue, it must appear that reopening the record may materially alter the result. Where a motion to reopen the record is untimely without good cause, the movant must demonstrate not only that the issue is significant, but also that the public interes,t demands that the issue be further O) (V explored. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 21 (1978); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1765 n.4 (1982), citina, Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). Egg Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 364-365 (1981); Kansas Gas and Electric Co. and Kansas City Power and Licht Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978); Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1324 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-756, 18 NRC 1340, 1344 (1983); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1089-90 (1984). The criteria for reopening the record govern each issue for which reopening is sought; the fortuitous circumstance that a proceeding has been or will be reopened on other issues is not significant. Metropolitan Edison Comoany (Three Mile Island Nuclear Station, Unit 2), ALAB-486, 8 NRC 9, 22 (1978); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, 21 NRC 1707, 1720 (1985), g JUNE 1988 POST HEARING MTTERS 15
i i i 5 4.4.2 In order to reopen a licensing proceeding, an intervenor must j show a change in material fact which warrants litigation anew. I Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-79-10, 10 NRC 675, 677 (1979). Whether to reopen a record in order to consider new evidence turns on the appraisal of several factors: (1) Is the motion timely? (2) Does it. address significant safety or environmen-tal issues? (3) Might a different result have been reached j had the newly proffered material been considered initially? ! Pacific Gas and Electri.c Comoany (Diablo Canyon Nuclear Power Plar.t, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980); i Metropolitan Edison Co. (Three Mile Island Nuclear Station, i Unit 1), ALAB-699, 16 NRC 1324, 1327 (1982); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117B, 16 NRC 2024, 2031-32 (1982); De+roit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB- l 730,17 NRC 1057,1065 n.7 (1983); Commonwealth Edison Co. < (Byron Nuclear Power Station, Units 1 and 2), LBP-83-41,18 , NRC 104, 108 (1983); Metropolitan Edison Co. (Three Mile J Island Nuclear. Station, Unit 1),.ALAB-738, 18 NRC 177, 180 1 (1983), citina, Ea_cific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598,11 NRC 876, 879 i (1980); Louisiana Power and Liaht Co. (Waterford Steam j Electric Station, Unit 3), ALAB-753,18 NRC 1321,1324 (1983); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1089 (1984); , Louisiana Power an U faht Co. (Waterford Steam Electric j Station, Unit 3), A,4.D-503, 21 NRC 575, 578 n.2 (1985); < Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-807, 21 NRC 1195, 1199 n.5 (1985); Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 1 3), ALAB-812, 22 NRC S, 13 (1985); Metropolitan Edison Co. 1 (Three Mile Island Nuclear Station, Unit 1), ALAB-815, 22 NRC I 198, 200 (1985); Houston Liahtina and Power Co. (South Texas l Project, Units 1 and 2), LBP-85-42, 22 NRC 795, 798 (1985); ; Houston Lichtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-45, 22 NRC 819, 822 (1985); Louisiana Power and , Licht Co. (Waterford Steam Electric Station, Unit 3), CLI l 1, 23 NRC 1, 4-5 (1986); Philadelphia Electric Co. (Limerick 1 Generating Station, Units 1 and 2), CLI-86-6, 23 NRC 130, 133 ) (1986); Cleveland Electric Illuminating Co. (Perry Nuclear 4 Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 235 (1986), i aff'd sub nom. Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987); i Philadelphia Electric Co. (Limerick Generating Station, ! Units 1 and 2), ALAB-834, 23 NRC 263, 264 (1986); Houston ' Liahtina and Power Co,_ (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 670 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501, 505-06 (1986), citina, 10 CFR 6 2.734; Public l Service Co. of New Hampshire (Seabrook Station, Units 1 and ' JUNE 1988 POST HEARING MA1TERS 16 l
f [3 L) 5.4.4.2 2),- LBP-87-3, 25 NRC 71, 76 and n.6 (1987); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-5, 25 NRC 884, 885-86-(1987); Florida Power and Licht Co. (Turkey Point Nuclear Generatirg Plant, Units 3 and 4), LBP-87-21, 25 NRC 958, 962 (1987); Georaia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872,. 26 NRC 127, 149-50 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-883, 27 NRC 43, 49 (1988). A party seeking to reopen must show that the issue it now seeks to raise could not have been raised earlier. Fermi, supra, 17 NRC at 1065. A motion to reopen an administrative record may rest on evidence that came into existence after the hearing closed. Pacific Gas and Electric Comoany (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-598, 11 NRC 876, 879 n.6 (1980). A Licensing Board has held that the most important factor to consider is whether the newly proffered material would alter the result reached earlier. Houston Liahtina and Power Co.- l (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, p)
\
V 672 (1986). To justify the granting of a motion to reopen, the moving papers must be strong enough, in light of any opposing filings, to avoid summary disposition. South Carolina Llectric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 7 1), LBP-82-84, 16 NRC 1183, 1186 (1982), citina, Vermont Yankee Power CorA (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973). The fact that the NRC's Office of Investigations is investi-gating allegations of falsification of records and harassment of QA/QC personnel is insufficient, by itself, to support a motion to reopen. Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 5-6 (1986). Evidence of a continuing effort to improve reactor safety does not necessarily warrant reopening a record. Diablo Canyon, suDra, 11 NRC at 887. Differing analyses by experts of factual information already in the record do not normally constitute the type of informa-tion for which reopening of the record would be warranted. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-42, 22 NRC 795, 799 (1985), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 t and 2), ALAB-644, 13 NRC 903, 994-95 (1981). JUNE 1988 POST HEARING MATTERS 17 a______---_
l Repetition of arguments previously presented does not present a basis for reconsideration. Nuclear Enaineerina Comoany. Jm (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5 (1980). Nor do generalized assertions to the effect that "more evidence is needed." Public Service Electric and Gas Co. (Salem Nuclear Generating l Station, Unit 1), ALAB-650, 14 NRC 43, 63 (1981). Newspaper allegations of quality assurance deficiencies, unaccompanied by evidence, ordinarily are not sufficient grounds.for reopening an evidentiary record. Cleveland i' Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-84-3, 19 NRC 282, 286 (1984). Egg Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 n.2 (1986). , 1 Generalized complaints that an alleged ex parte communication to a board comprcaised and tainted the board's decisionmaking process are insufficient to support a motion to reopen. Philadelphia Electric Co. (Limerick Generating Station, Units j 1 and 2), ALAB-840, 24 NRC 54, 61 (1986), vacated, CLI-86-18, . 24 NRC 501 (1986) (the Appeal Board lacked jurisdiction to rule on the motion to reopen). j 1 A movant should provide any available material to support a motion to reopen the record rather than rely on " bare allegations or simple submission of new contentions." Gi Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-753, 18 NRC 1321, 1324 (1983), citina, , Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power i Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363 (1981); Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-803, 21 NRC 575, 577 (1985); Louisiana Power and liaht Co. (Waterford Steam Electric Station, Unit j 3), ALAB-812, 22 NRC 5, 14 (1985); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986). Undocumented newspaper articles on subjects 1 with no apparent connection to the facility in question do not l provide a legitimate basis on which to reopen a record. Waterford, supra, 18 NRC at 1330; Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1089-1090 (1984). The proponent of a motion to reopen a hearing bears the responsibility for establishing that the standards for reopening are l met. The movant is not entitled to engage in discovery in order to support a motion to reopen. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ; CLI-85-7, 21 NRC 1104, 1106 (1985). An adjudicatory i board will review a motion to reopen on the basis of the ' available information. The board has no duty to search l JUNE 1988 POST HEARING MATTERS 18 l l
---- _- ------ - _ _- _ _ _ _a
- 9 4.4.2 D for evidence which will support a party's motion.to reopen.
Thus, unless the movant has submitted information which raises a serious safety issue, a board may not seek to obtain information relevant to a motion ~to reopen pursuant to either its sua soonte authority or the Commission's Policy Statement on Investigations, Inspections, and Adjudicatory Proceedings, 49 Fed. Rea. 36,032 (Sept. 13, 1984). Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6-7 (1986). A motion to reopen the record based on alleged deficiencies.in-an applicant's construction quality assurance program must establish either that uncorrected construction errors endanger safe plant operation, or that there has been a breakdown of the quality assurance program sufficient to raise legitimate doubt as to whether the plant can be operated safely. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, . Units 1 and 2), ALAB-756, 18 NRC 1340, 1344-1345 (1983), citina, Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 346 (1983); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 15 (1985). This standard also applies to an applicant's design quality assurance program. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-775, 19 NRC 1361, 1366 (1984), aff'd sub. nom. San Luis Obisoo O Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff'd on reh'a en banc, 789 F.2d 26 (1986). The untimely listing of " historical examples" of alleged construction QA deficiencies is insufficient to warrant reopening of the record on the issue of management character and competence. Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 15 (1985), citina, Diablo Canyon, ALAB-775, suora,19 NRC at 1369-70. Long range forecasts of future electric power demands are especially uncertain as they are affected by trends in usage, increasing rates, demographic changes, indus-trial growth or decline, and the general state of economy. These factors exist even beyond the uncertainty that inheres to demand forecasts: assumptions ,n continued use from historical data, range of years considered, the area considered, and extrapolations from usage in resi-dential, commercial, and industrial sectors. The general rule applicable to cases involving differences or changes in demand forecasts is stated in Niacara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 352-69 (1975). Accordingly, a possible one-year slip in construction schedule was clearly within the margin of uncertainty, and interveners t had failed to present information of the type or substance
' likely to have an effect on the need-for-power issue JUNE 1988 POST HEARING MATTERS 19
9 4.4.3 such as to warrant relitigation. Carolina Power and Licht Co.
- (Shearon Harris Nuclear Power Plant, Units 1-4), CLI-79-5, 9 NRC 607, 609-10 (1979).
4.4.3 Reopening Construction Permit Hearings to Address New Generic Issues l Construction permit hearings should not be reopened upon discovery of a generic safety concern where such generic concern can be properly addressed and considered at the operating license stage. Georaia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 NRC 404 (1975). 4.4.4 Discovery to Obtain Information to Support Reopening of Hearing The Appeal Board has held that, though the period for discovery may have long since terminated, a party may obtain discovery in order to support a motion to reopen a hearing provided that party demonstrates with particularity that discovery would enable it to produce the needed materials. Vermont Yankee Nuclear Power Corp. (Verment Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 524 (1973). This Appeal Board ruling is substantially undercut by a recent Commission decision in which the Commission noted that the burden is on the movant to establish prior to reopening that the standards for reopening are met and "the movant is not entitled to engage in discovery in order to support a motion to reopen." Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985). See also Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), CLI-86-7, 23 NRC 233, 235-36 & n.1 (1986), aff'd sub nom. on other arounds, Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 672-673 n.33 (1986); Florida , l Power and Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-87-21, 25 NRC 958, 963 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-879, 26 NRC 410, 422 (1987). j 4.5 Motions to Reconsider When a Board has reached a determination of a motion in the course of an on-the-record hearing, it need not reconsider that determina-tion in response to an untimely motion but it may, in its discretion, decide to reconsider on a showing that it has made an egregious i error. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, j Units 1 and 2), LBP-82-6, 15 NRC 281, 283 (1982). 1 JUNE 1988 POST HEAR!NG MATTERS 20 i
j i ! I 9 4.6 ] I() In certain instances, for example, where a party attempts to appeal an interlocutory ruling, a Licensing Board can properly treat the appeal as a motion to the Licensing Board itself to reconsider its ruling. Public Service Co. of Oklahoma (Black Fox Station, Units 1 )
& 2), ALAB-370, 5 NRC 131 (1977); Public Service Co. of New Hampshire !
(Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1653 I (1982). The Appeal Board has indicated that a motion to it to reconsider a prior decision will be denied where the Appeal Board is left with the conviction that what confronts it is not in reality an elaboration upon, or refinement of, arguments previously advanced, but instead is an entirely new thesis. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B & 28), ALAB-418, 6 NRC 1, 2 (1977). A party may not raise, in a petition for reconsideration, a matter which was not contested before the Licensing Board or on appeal. Tennessee Vallev Authority (Hartsville Plant, Units IA, 2A, IB, 2B), ALAB-467, 7 NRC 459, 462 (1978). In the same vein, a matter which was raised at the inception of a proceeding but was never pursued before the Licensing Board or the Appeal Board cannot be raised on a motion for reconsideration of the Appeal Board's decision. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-477, 7 NRC 766, 768 (1978). (p) Motions to reconsider an order should be associated with requests v for reevaluation in light of elaboration on or refinement of argu-ments previously advanced; they are not the occasion for advancing an entirely new thesis. Central Electric Power Cooperative. Inc. (Virgil C. Summer Nuclear Station, Unit No. 1), CLI-81-26, 14 NRC 787, 790 (1981). Where a party petitioning the Court of Appeals for review of a decision of the agency also petitions the agency to reconsider its decision and the Federal court stays its revi'f pending the agency's disposition of the motion to reconsider, the Hobbs Act does not preclude the Agency's reconsideration of the case. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2). ALAB-493, 8 NRC 253, 259 (1978). Repetition of arguments previously presented does not present a basis for reconsideration. Nuclear Enaineerina Company. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5-6 (1980). 4.6 Sua Soonte Review by the Aooeal Board Sua sponte review of a Licensing Board's decision by an Appeal Board is a long-standing Commission-approved practice that is undertaken in all cases, regardless of their nature or whether p) i C exceptions have been filed. Wisconsin Electric Power CA (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1262 (1982), citina, Offshore Power Systems (Manufacturing License for i JUNE 1988 POST HEARING MATTERS 21
i 5 4.6 Floating Nuclear Power Plants), ALAB-689,16 NRC 887, 890 (1982); Georoia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859, 25 NRC 23, 27 (1987). The Appeal Board has the power to conduct a de novo review of the record sua soonte to make its own independent findings. Wisconsin Electric Power Co. (Point Beach Nuclear Power Station), ALAB-73, 5 AEC 297, 298 (1972). In uncontested and/or unappealed cases, the Appeal Board will always conduct a sua soonte review of safety and environmen;;l issues. Egg, gA, Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 803 (1981), citina, Washinaton Public Power Supply Systqm (WPPSS l Nuclear Project No. 2), ALAB-571, 10 NRC 687 (1979). See alig i Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Station), j ALAB-79, 5 AEC 342 (1972); Detroit Edison Co. (ftrico Fermi Atomic l Power Plant),- ALAB-77, 5 AEC 315 (1972); Offshore Power Systems j (Manufacturing License for Floating Nuclear Power Plants), ALAB-689, ! 16 NRC 887, 890 (1982); Consumers Power Co. (Midland Plant, Units I l and 2), ALAB-691, 16 NRC 897, 908 (1987); Louisiana Power and Liaht j Lo2 (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC ' 1076, 1111 (1983); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591, 1624 (1984). In the absence of an appeal, the customary practice of an Appeal Board is to conduct a sua sponte review of an authorization of ; licensing action. However, an Appeal Board will not conduct a spa I sponte review of a proceeding that was dismissed when the parties settled the issues. Thus, an Appeal Board will decline to conduct a i sua sponte review of a license amendment proceeding where the parties agreed to proposed findings of fact and conclusions of law, and where the Licensing Board raised no significant safety or environmental issues on its own motion. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-796, 21 NRC 4, 5 (1985). An Appeal Board may undertake sua sponte review either during the course of Licensing Board proceedings or after an initial decision has been issued. 10 CFR s 2.785; Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417 (1977). An Appeal Board may undertake sua soonte review of a Licensing Board decision concerned with the integrity of the hearing process. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897, 908 (1982). It is not the Appeal Boarc s mction in a sua sconte review of a Licensing Board decision to undertake a detailed scrutiny of the entire record. Rather, the Appeal Board usually addresses only those portions of the Licensing Board's opinion that it believes deserve clarification or correction. Further, absence of Appeal Board comment on a particular Licensing Board statement should not be construed as either agreement or disagreement with it. Midland, suora, 16 NRC at 908-909. JUNE 1988 POST HEARING MATTERS 22
)
l l
~
S 4.6 (v) Upon review sua sponte of a Licensing Board's initial decision : authorizing facility operation, the Appeal Board will consider ' operational problems coming to light as a result of facility f operation during the period of review only where the problems are ' extraordinary and have a bearing on whether an operating license : should have been issued. Duauesne Licht Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 NRC 1383, 1386 (1977). In any event, the following matters will not be reviewed sua sponte absent extraordinary circumstances:
~
(1) Procedural irregularities. Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 1), ALAB-231, 8 AEC 633, 634 (1974); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1262 (1982). (2) Rulings on contentions. Washinoton Public Power Supply System (Nuclear Projects No. 1 & No. 4), ALAB-265, 1 NRC 374, 375 n.1 (1975); Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-242, 8 AEC 847, 848-849 (1974). (3) Purely economic issues posed in an antitrust proceeding. Louisiana Power & Liaht Co. (Waterford Steam Electric Station, r~N Unit 3), ALAB-258, 1 NRC 45, 48 n.6 (1975); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897, 908 (V) (1982), citina, Waterford, supra, 1 NRC at 48 n.6; Washinoton Public Power Suoolv system, suora,1 NRC at 375 n.1; Pilarim, suora, 8 AEC at 633-634. (4) A proceeding which has been dismissed upon settlement of the issues by the parties. Tro.ian, suora, ALAB-796, 21 NRC 4, 5 (1985). Appeal Board review will be routinely undertaken of iny final disposition of a licensing proceeding founded upon substantive determinations of significant safety or environmental issues. Northern States Power Comparly (Monticello Nuclear Generating Plant, Unit 1), ALAB-611, 12 NRC 301, 303-304 (1980). The Appeal Board, on sua sconte review, has the authority to reject or modify the findings of the Licensing Board. Monticello, supra, 12 NRC at 304. As for the standards for an Appeal Board's reversal of a Licensing Board's findings of fact, ige Section 5.7.3. A case, when properly before the Appeal Board on sua sconte review, is not confined to those issues on which the Licensing Board made substantive findings. Issues not raised by parties may be con-sidered. However, in operating license proceedings such issues may be considered only when serious safety, environmental or common Q defense and security matters exist. Monticello, suora, 12 NRC at () 309. JUNE 1988 POST HEARING MATTERS 23
]
)
l 9 4.6 In the course of its review of an initial decision in a construction l permit proceeding, an Appeal Board is free to raise sua soonte issues I which were either presented to nor considered by the Licensing i Board. Viraine Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 707 (1979). l If the Appeal Board determines sua soonte more information is needed, it may take evidence to develop the record. Virainia Electric & ) Power Co. (North Anna Nuclear Power Station, Unita 1 & 2), ALAB-578, 11 NRC 189 .(1980). , The Appeal Board, in lieu of remand, may undertake the conduct of ! hearings in the interests of expedition. Pacific Gas & Electric Co. 1 (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC i 227, 231 (1980). In a special proceeding not specifically addressed by Commission regulations, the Appeal Board has the authority to review the entire record of a proceeding sua sponte, independently of the parties' j position. The absence of an appeal does not deprive the Appeal Board ' of the right to review an issue that was contested before a Licensing , Board. Metropolitan Edison Co. (Three Mile Island Nuclear Station, ' Unit No. 1), ALAB-685, 16 NRC 449, 451, 452 (1982), citina, Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245, 247 (1978); Public Service Electric and Gas Lo.,_ q (Salem Nuclear Generating Station, Unit 1), ALAB-650,14 NRC 43, 49 n.6 (1981). The Appeal Board's authority to review the entire record must be distinguished from its power in operating license application proceedings to consider serious safety, environmental, and common defense and security matters not otherwise placed in issue by the parties and those cases not involving operating license applications where Commission approval is sought before pursuing new safety questions not previously put in controversy or otherwise raised in an adjudicatory context. Three Mile Island, suora, 16 NRC at 452 n.5. An immediate effectiveness review is not a substitute for the usual sua soonte review. Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), ALAB-689,16 NRC 887, 890 (1982). In no instance has the Appeal Board's conduct of a sua soonte review served (or been construed) to revoke, suspend, or defer issuance of a license. Only the finality of the Licensing Board's underlying decision is deferred pending Appeal Board review; the effectiveness of the decision is not stayed. lignufacturina licen_g, supra,16 NRC at 891. O JUNE 1988 POST HEARING MATTERS 24
V 9 4.7-l If the Appeal Board's sua soonte review uncovers problems in a - Licensing Board's decision or a record that may require corrective action adverse to a party's interest, the consistent practice is to give the party ample opportunity to address the matter as appro-priate. Manufacturing License, suDra, 16 NRC at 891 n.8, citina, Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799. 803 (1981); Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), ALAB-611,12 NRC 301, 309-313 (1980). NRC regulations give an adjudicatory board the discretion to raise on its own motion any serious safety or environmental matter. Egg 10 CFR S 2.785(b)(2). This discretionary authority necessarily places on the board the burden of scrutinizing the record of an operating license proceeding to satisfy itself that no such matters exist. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 18 NRC 1309 (1983). Sf_q Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), ALAB-611,12 NRC 301, 309 (1980). 4.7 Motions for Post-Judament Relief
! Post-judgment motions for relief are not favored by the regulations governing Commission review of Appeal Board decisions (10 CFR 6 2.786(b)(7)) and will not normally be granted absent a showing of
" extraordinary circumstances." Public Service Comoany of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-15, 8 NRC 1, 2 (1978).
Although termed a " motion for reformation", an applicant's motion which seeks a major revision of the text of a Commission order, including the deletion of the Commission's rationale for denying the applicant's petition for review of an Appeal Board decision, is in reality a motion for reconsideration of a Commission order. The Commission's regulations make it clear that such motions for reconsideration will not be entertained. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), CLI-86-21, 24 NRC 681, 682-83 (1986), citina, 10 CFR 9 2.786(b)(7). JUNE 1988 POST HEARING MATTERS 25
~
TABLE OF CONTENTS l APPEALS 5.0 APPEALS App 1 5.1 Riaht to Appeal App 1 5.2 Who Can Acceal App 2 5.3 How to Appeal App 4 5.4 Time for Filina Appeals App 4 5.5 Matters Considered on Appeal App 7 5.5.1 Issues Raised for the First Time on Appeal App 8 5.5.2 Effect on Appeal of Failure to File Proposed Findings App 10 5.5.3 Matters Considered on Appeal of Ruling Allowing Late Intervention App 11 5.5.4 Consolidation of Appeals on Generic Issues App 11 5.6 Aooeal Board Action App 11 5.6.1 Role of Appeal Board App 11 m) lV 5.6.2 5.6.3 Parties' Opportunity to be Heard on Appeal Standards for Reversing Licensing Board on Findings of App 16 Fact App 17 5.6.4 Grounds for Immediate Suspension of Construction Permit by Appeal Board App 20 5.6.5 Immediate Effectiveness of Appeal Board Decision App 20 5.6.6 Effect of Appeal Board Affirmance as Precedent . App 21 5.6.6.1 Precedential Effect of Unpublished Opinions of Appeal Boards App 21 5.6.7 Disqualificatia of Appeal Board Member App 21 5.7 Stavs Pendina ADDeal App 22 5.7.1 Requirements for a Stay Pending Appeal App 24 5.7.2 Stays Pending Remand After Judicial Review App 31 5.8 Specific Appealable Matters App 32 5.8.1 Rulings on Intervention App 32 5.8.2 Scheduling Orders App 34 5.8.3 Discovery Rulings App 35 5.8.3.1 Rulings on Discovery Against Nonparties App 35 5.8.3.2 Rulings Curtailing Discovery App 35 5.8.4 Refusal to Compel Joinder of Parties App 36 5.8.4.1 Order Consolidating Parties App 36 (O
'j 5.0.5 Order Denying Suuary Disposition (SEE ALSO 3.5)
App 36 SEPTEMBER 1988 APPEALS - TABLE OF CONTENTS i
TABLE OF CONTENTS APPEALS i 5.8.6 Procedural Irregularities App 36 ) 5.8.7 Matters of Recurring Importance App 37 5.8.8 Advisory Decisions on Trial Rulings App 37 5.8.9 Order on Pre-LWA Activities App 37 3 5.8.10 Partial Initial Decisions App 37 ] 5.8.11 Other Licensing Actions App 38 ) 5.8.12 Rulings on Civil Penalties App 38 5.8.13 Evidentiary Rulings App 38 5.8.14 Director's Decision on Show Caure Petition App 39 5.8.15 Findings of Fact App 39 5.9 Perfectino Acceals App 39 i 5.9.1 General Requirements for Appeals from Initial Decision App 39 5.10 Briefs on Appeal App 40 5.10.1 Necessity of Brief App 40 5.10.2 Time for Submittal of Brief App 40 5.10.2.1 Time Extensions for Brief App 41 , 5.10.2.2 Supplementary Driefs App 42 ) 5.10.3 Contents of Brief App 42 ] 5.10.3.1 Opposing Briefs App 47 5.10.4 Amicus Curiae Briefs App 47 ; 5.11 Oral Araument App 47 5.11.1 Failure to Appear for Oral Argument App 48 4 5.11.2 Grounds for Postponement of Oral Argument App 48 ) 5.11.3 Oral Argument by Nonp .rties App 48 5.12 Actions Similar to Appeals App 49 5.12.1 Motic 's to Reconsider App 49 5.12.2 Inte: 'ocutory Reviews App 50 5.12.2.1 Directed Certification of Questions for Interlocutory Review App 53 , 5.12.2.1.1 Effect of Subsequent Developments on Motion to Certify App 60 l 5.12.2.1.2 Effect of Directed Certification on Uncertified Issues App 60 5.12.3 Application to Commission for a Stay After Appeal Board's Denial of Stay App 60 5.13 Appeals from Orders. Rulinas. Initial Decisions. Partial Initial Decisions App 61 5.13.1 Time for Filing Appeals App 61 5.13.1.1 Appeals from Initial and Partial Initial Decisions App 61 5.13.1.2 Variation in Time Limits on Appeals App 61 5.13.2 Briefs on Appeal App 62 5.13.3 Effect of Failure to File Proposed Findings App 62 5.13.4 Motions to Strike Appeals App 62 SEPTEMBER 1988 APPEALS - TABLE OF CONTENTS 11 1 __ - ---__-_-.___. _ l
{ gjj TABLE OF CONTENTS APPEALS
'5.14 Certification to the Commission App 63 5.15 Review of Anneal Board Decisions . App 64 5.15.1 _ Effect'of Commission's Refusal to Entertain Appeal App 65
'5.15.2 Stays Pending Judicial Review of Appeal Board Decision App 66 F
5.'15.3 Stays Pending' Remand After Judicial Review App 67 5.16 Review of Commission Decisions App 67 5.16.1 Review of Disqualification of a Commissioner App 67 5.17 Reconsideration by the Commission App 67 5.18 Jurisdiction of NRC to Consider Matters While Judicial Review is Pendina App 67 5.19 Procedure On Remand App 68 5.19.1 Jurisdiction of the Licensing Board on Remand App 68 Os 5.19.2 5.19.3 Jurisdiction of the Appeal Board.on Remand Stays Pending Remand App 69
' App 70 5.19.4 Participation of Parties in Remand Proceedings App 71 O
SEPTEMBER 1988 APPEALS - TABLE OF CONTENTS iii
n 6 5.1 7 5.0- APPEALS j 5.1 RighLto_ Appeal An appeal from a ruling or a decision is normally allowed if the appellant can establish that, in the final analysis, some discernible injury to it has been sustained.as a consequence of the ruling. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975); Philadelphia Electric Co. -(Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 250, 251 (1986). There is no right to-an administrative appeal on every' factual finding. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 1B & 28), ALAB-467, 7 NRC 459, 461 n.5 (1978). In normal circumstances, an appeal will lie only from unfavorable action taken by the Licensing Board, not from wording of a decision with which a party disagrees but which has no operative effect. .Dukt Power Co. (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-482, 7 NRC 979, 980 (1978). For.a more recent case in which the Appeal Board held that a party may not file exceptions to a decision if it is not aggrieved by the result, igg Rochester Gas & Electric Coro. (Sterling Power Project, Nuclear Unit No. 1), ALAB-502, 8 NRC 383, 393 (1978). The right to appeal accrues only to a party who is aggrieved by the result reached below. Rochester Gas &- Electric Corporation (Sterling Power Project, Nuclear Unit No. 1), ALAB-502, 8 NRC 383, 393 n.21 (1978); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-644, 13 NRC 903, 914 (1981); Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-790, 20 NRC 1450, 1453 (1984); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135,141 (1985), rev'd in part on other arounds, CLI-87-12, 26 NRC 383 (1987); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 252 (1986). The fact that a Board made an erroneous ruling is not sufficient to warrant appellate relief. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1151 (1984), citina, Cleveland Electric 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 756 (1977); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-827, 23 NRC 9,11 (1986) (appeals should focus on significant matters, not every colorable claim of error); Long Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 143 (1986), rev'd in oart on other arounds, CLI-87-12, 26 NRC 383 (1987). A party seeking appellate relief must demonstrate actual prejudice - that the Board's ruling had a substantial effect on the outcome of the proceeding. Shoreham, igata, 20 NRC at 1151, citina, Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, O- 1096 (1983). Egg Philadelphia Electric Co. (Limerick Generating MARCH 1988 APPEALS 1
i l Station, Units 1 and 2), ALAB-863, 25 NRC 273, 278, 280 (1987) (interveners failed to show any specific harm resulting from erroneous Licensing Board rulings). A prevailing party may defend a result on any ground presented in the record, including one rejected below, once the other side appeals. Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 789 (1979); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 908 n.8 (1982), citina, Black Eg2, suDra, 10 NRC at 789; Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 141 (1986), rev'd in part on other arounds, CLI-87-12, 26 NRC 383 (1987). 5.2 Who Can Appeal l
)
The right to appeal is confined to participants (j_dt,., parties) in j the proceeding before the Licensing Board. Duke Power Co. (Perkins i Nuclear Station, Units 1, 2 & 3), ALAB-433, 6 NRC 469 (1977); ] Consolidated Edison Co. of N.Y. (Indian Point Station, Unit 2), ALAB- ) 369, 5 NRC 129 (1977); Kansas Gas & Electric Co. (Wolf Creek Nuclear
]
Generating Station, Unit 1), ALAB-311, 3 NRC 85, 88 (1976); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-294, 2 NRC 663, 664 (1975); Public Service El?ctric & Gas Co. l (Hope Creek Generating Station, Units 1 & 2), ALA'-251, 8 AEC 993, 994 (1974); Tennessee Valley Authority (Bellefonta Nuclear Plant, Units 1 & 2), ALAB-237, 8 AEC 654 (1974); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 252 (1986). Thur, with the single exception of a State which is participating under the " interested State" provisions of 10 CFR s 2.715(c), a nonparty to a proceeding may not appeal from a Licensing Board's decision. Metropolitan Edison Co. (Three Mile Island Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978). l Although an interested State is not a party to a proceeding in the traditional sense, the "participational opportunity" afforded to an l interested State under 10 CFR 9 2.715(c) includes the ability for an interested State to appeal from an initial decision. USERDA (Clinch River Breeder Reactor), ALAB-354, 4 NRC 383, 392 (1976); Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-317, 3 NRC 175, 177-180 (1976). In this vein, a person who makes a limited appearance before a Licensing Board is not a party and, therefore, may not appeal from the Board's decision. Metropolitan Edison Co. (Three Mile Isl ad Nuclear Generating Station, Unit 2), ALAB-454, 7 NRC 39 (1978). As to appeals by specific parties, the following should be noted: (1) A party satisfied with the result reached on an issue is normally precluded from appealing with respect to that 1 MARCH 1988 APPEALS 2
i 9 5.2
') issue, but he is free to challenge the reasoning used to reach the result in defending that result if another party appeals. j Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-282, 2 NRC 9, 10 n.1 (1975). The prevailing party is free to urge any ground in defending the result, including grounds rejected by the Licensing Board. Niacara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 357 (1975).
See also Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591, 1597 (1984); Lona Island Liahtina Co. (Shoreham Nucler.r Power Station, Unit 1), ALAB-832, 23 NRC 135, 141 (1986), rev'd in part on other arounds, CLI 12, 26 NRC 383 (1987). (2) A third party entering a special appearance to defend against discovery may appeal. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-311, 3 NRC 85, 87-88 (1976). (3) As to orders denying a petition to intervene, only the peti-tioner who has been excluded from the proceeding by the order may appeal. USERD4 (Clinch River Breeder Reactor Plant), ALAB-345, 4 NRC 212 (1976). In such an appeal, other parties may file briefs in support of or opposition to the appeal. Id.
-3 (4) A party to a Licensing Board proceeding has no standing to press ; ) before an Appeal Board the grievances of other parties to the '_/ proceeding not represented by him. Houston Liahtina and Power A (Allens Creek Nuclear Generating Station, Unit 1), ALAB-631, 13 NRC 87, 89 (1981), citina, Puaet Sound Power and Licht Co.
(Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 NRC 30 (1979); Carolina Power and Linht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-543 n.58 (1986); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-86-24, 24 NRC 132, 135 & n.3 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 203 n.3 (1986). Third parties may file amicus briefs with respect to any appeal, even though such third parties could not prosecute the appeal themselves. Consolidated Ediron Co. of N.Y., Inc. (Indian Point Station, Unit 2), ALAB-369, 5 NRC 179 (1977); Consolidated Edison Co. of N.Y. Inc. (Indian Point, Units 1, 2 & 3), ALAB-304, 3 NRC 1, 7 (1976). The Appeal Board in ALAB-304 implied that leave to file an amicus brief may be necessary. The procedure for filing an amicus brief, including the requirement to seek to fkle such brief, is now contained in 10 CFR 6 2.715. One seeking to appeal an issue must have participated and taken all rN timely steps to correct the error. Pacific Gas & Electric Co.
! ) (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-583,11 NRC d 447 (1980).
MARCH 1988 APPEALS 3
1 i L 1 l 6 5.3 l l The Commission has long construed its Rules of Practice to allow the Staff to appeal from initial decisions. 10 CFR 9 2.762 explicitly l treats the Staff as a party for purposes of filing appeals. In the Matter of Radiation Technoloov. Inc., ALAB-567, 10 NRC 533, 547-548 (1979). Although a party generally may appeal only on a showing of discernible injury, the Staff may appeal on questions of precedential importance. A question of precedential importance is a ruling that would with probability be followed by other Boards facing similar questions. A question of precedential importance can involve a question of remedy. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18, 23-25 . (1980), modified, CLI-80-12, 11 NRC 514 (1980). l l 5.3 How to Anoeal The general rules as to the manner of taking an appeal are set out in 10 CFR 9 2.762. Formerly under that regulation, an appeal was taken by the filing of exceptions within ten days after service of the initial decision. Recent changes to 10 CFR 9 2.762 require only the j filing of a notice of appeal within the same time period. A l supporting brief must be filed within 30 days after the notice of appeal has been filed, although the Staff has 40 days to file such a brief. Other parties may file supporting or opposing briefs in response within 30 days (40 days for the Staff) after the initial supporting brief of the appellant. Sgg Sections 5.4 (Time for Filing Appeals), 5.9 (Perfecting Appeals), 5.10 (Briefs on Appeal) and 5.13 (Appeals from Orders, Rulings, Initial Decisions, Partial Initial Decisions) for further discussion of these matters. 5.4 Time for Filina Anneals l As a general rule, only " final" actions are appealable. The test for
" finality" for appeal purposes is essentially a practical one. For the most part, a Licensing Board's action is final when it either disposes of a major segment of a case or terminates a party's right to participate. Rulings that do neither are interlocutory. Toledo j Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 1 758 (1975); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-690, 16 NRC 893, 894 (1982), citina, Toledo ,
Edison Co. (Davis-Besse Nuclear Power Station), ALAB-300, 2 NRC 752, ! 758 (1975); Nuclear Enaineerina Co.. Inc. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-606,12 NRC 156,160 (1980); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 NRC 1245, 1256 (1982); Cleveland Electric i Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP- j 83-77, 18 NRC 1365, 1394-1395 (1983); Public Service Co. of New j Hampshire (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632, ' 636-37 (1988). A Licensing Board's partial initial decision in an operating ; license proceeding, which resolves a number of safety contentions, I but does not authorize the issuance of an operating license or SEPTEMBER 1988 APPEALS 4 !
I p 9 5.4 V resolve all pending safety issues, is nevertheless appealable since it disposes of a major segment of the case. Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris j Nuclear Power Plant), LBP-85-28, 22 NRC 232, 298 n.21 (1985), j citina, Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), i ALAB-632, 13 NRC 91, 93 n.2 (1981). ! The requirement of finality applies with equal force to both appeals from rulings on petitions to intervene pursuant to 10 CFR S 2.714a, and appeals from initial decisions pursuant to 10 CFR 9 2.762. Waterford, SUDra, 16 NRC at 895 n.2. Appeals from interlocutory orders issued by Licensing Boards must await the initial decision rendered by the Board at the end of the case. 10 CFR 66 2.760 and 2.762; Cincinnati Gas and Electric Co. (William H. Zimmer Station), ALAB-633, 13 NRC 94 (1981), citina, Boston Edison Co. (Pilgrim Station, Unit 2), ALAB-269, 1 NRC 411 (1975). In general, an immediately effective Licensing Board initial decision is a " final order," even though subject to appeal within the agency, unless its effectiveness has been administratively stayed pending the outcome of further Commission review. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-349, 4 NRC 235 ("% (1976). In other areas, an order granting discovery against a third 1 ( ) party is " final" and appealable as of right. Kansas Gas & Electric l v Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-311, 3 NRC 85, 87 (1976); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973). Similarly, a Licensing Board order on the issue of whether offsite activity can be engaged in prior to issuance of an LWA or a CP is appealable. Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-331, 3 NRC 771, 774 (1976). When a Licensing Board grants a Part 70 license to l transport and store fuel assemblies during the course of an OL hearing, the decision is not interlocutory and is immediately appealable. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI-76-1, 3 NRC 73, 74 (1976). Partial initial decisions which do not yet authorize construction activities nevertheless may be significant and, therefore, appealable as of right. Houston Lichtina & Power Co. (Allens Creek Nuclear Generat-ing Station, Units 1 & 2), ALAB-301, 2 NRC 853, 854 (1975). Similarly, a Licensing Board's decision authorizing issuance of an LWA and rejecting the applicant's claim that it is entitled to issuance of a construction permit is final for the purposes of appellate review. Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 318 (1978). A protracted withholding of action on request for relief may be treated as tantamount to a denial of the request and final ac-tion. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-417, O) (^, 5 NRC 1442 (1977); Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426, 428 (1977). At least in those MARCH 1988 APPEALS 5
5 5.4 instances where the delay involves a Licensing Board's failure to act on a petition to intervene, such a " denial" of the petition is appealable. Greenwood, spn . As previously noted, an appeal is taken by the filing of a notice of appeal within ten days after service of the initial decision. Licensing Boards may not vary or extend the appeal periods provided for in the regulations. D_uouesne Liaht Co. (Beaver Valley Power Station, Unit 1), ALAB-310, 3 NRC 33 (1976); Consolidated Edison Co. of N.Y.. Inc. (Indian Point Sthtion, Unit 3), ALAB-281, 2 NRC 6 (1975). While a motion for a time extension may be filed with the Appeal Board and will sometimes be granted in complex cases, mere ' agreement among the parties is not sufficient to show good cause for an extension. Commonwealth Edison Co. (Zion Station, Units 1 & 2), - ALAB-154, 6 AEC 827 (1973). j l The rules for taking an appeal also apply to appeals from partial { initial decisions. Once a partial initial decision is rendered, an ; appeal must be filed immediately in accordance with the regulations ' or the appeal is waived. Mississioni Power and Liaht Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-195, 7 AEC 455, 456 n.2 (1974). See also Houston Liahtino & Power Co. (Allens Creek Nuclear Ger,erating Station, Units 1 and 2), ALAB-301, 2 NRC 853, 854 (1975). Although the time limits established by the Rulas of Practice with regard to appeals from Licensing Board decisions and orders are not jurisdictional, Appeal Board policy is to construe them strictly. Hence untimely appeals are not accepted absent a demonstration of extraordinary and unanticipated circumstances. Consumers Power Co. (Hidland Plant, Units 1 and 2), ALAB-684,16 NRC 162,165 n.3 (1982), citino, Nuclear Enaineerina Co. (Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 160 (1980); ; 10 CFR Part 2, App. A, IX(d)(4). See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632, 635 (1988). The timeliness of a party's brief on appeal from a Licensing Board's denial of the party's motion to reopen the record is determined by the standards of 10 CFR @ 2.762, which applies to appeals from final orders, and not 10 CFR 9 2.714a(b), which is specifically applicable to appeals from board orders " wholly denying a petition for leave to intervene and/or request for a hearing". Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 18 n.6 (1986). The time limits imposed in 10 CFR 9 2.762(a) for filing appeal briefs refer to the date upon which the appeal was filed and not to when it was originally due for filing prior to a time extension. Kansas Gas
& Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 125 (1977).
It.is accepted appellate practice for the appeal period specified in 10 CFR s 2.762(a) to be tolled while the trial tribunal has SEPTEMBER 1988 APPEALS 6
-. m
$ 5.5 ITb before it an authorized and timely-filed petition for recon-sideration of the decision or order in question. Commonwealth Edison
[L. (Byron Nuclear Power Station, Units 1 and 2), ALAB-659, 14 NRC l 983 (1981). Pursuant to 10 CFR 9 2.714a, an appeal concerning an intervention - ,1 petition must await the ultimate grant or denial of that petition. L Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3),-ALAB-472, 7 NRC 570, 571 (1978). A Licensing Board order which determines that petitioner has met the " interest" requirement for intervention and that mitigating factors outweigh the untimeliness of the petition but does not rule on whether petitioner has met the " contentions" requirement is not a final disposition of the petition seeking leave to intervene. Greenwood, typ_ta, 7 NRC at 571. The Appeal Board does not generally characterize its own decisions as final or not final for the purpose of review. Its opinion would only be advisory, and the Appeal Board does not render advisory opinions in the absence of the most compelling considerations. The Office of the General Counsel may interpret 10 CFR ss 2.770 and 2.771 (final decisions) pursuant to its mandate under 10 CFR 91.32(f), and any party may request an interpretation of these regulations on finality if it so desires. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 1B & 2B), ALAB-467, 7 NRC 459, 463 (1978). Finality of a decision is usually determined by examining whether it disposes of at least a major segment of the case or terminates a party's right to participate. The general policy is to strictly enforce time limits for appeals following a final decision. However, where the lateness of filing was not due to a lack of diligence, but, rather, to a misapprehension about the finality of a Board decision, the Appeal Board will allow the appeal as a matter of discretion. Nuclear Enaineerina comoany. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), ALAB-606, 12 NRC 156, 159-160 (1980); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-894, 27 NRC 632, 635-637 (1988). A petitioner's request that the denial of his intervention petition be overturned, treated as an appeal under 10 CFR & 2.714a, will be denied as untimely where it was filed almost 3 months after the issuance of a Licensing Board's order, especially in the absence of a showing of good cause for the failure to file an appeal on time. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-547, 9 NRC 638, 639 (1979). 5.5 Matters Considered on Aooeal Where a matter has been considered by the Commission, it may not be reconsidered by a Board. Commission precedent must be followed.
/9 Virainia Electric & Power Co. (North Anna Nuclear Power Station, V Units 1 & 2), ALAB-584, 11 NRC 451, 463-465 (1980).
SEPTEMBER 1988 APPEALS 7
)
_ _ _ - __ _ __ _ _ _ _ _ _ _ __.._____.______________________________.J
9 5.5.1 One may not appeal from an order delaying a ruling, when appeal will lie from the ruling itself. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-585,11 NRC 469, 470 (1980). Although a party generally may appeal only on a showing of dis-cernible injury, the Staff may appeal on questions of precedential importance. A question of precedential importance is a ruling that would with probability be followed by other Boards facing similar questions. A question of precedential importance can involve a question of remedy. Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-577,11 NRC 18, 23-25 (1980), modified, CLI-80-12, 11 NRC 514 (1980). As a general rule, a party may seek appellate redress only on those parts of a decision or ruling which he can show will result in some discernible injury to himself. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975). Within this rule, an intervenor can appeal as to all issues, whether or not raised by his or her own con-tentions. Northern States Power Co. (Prairie Island Nuclear Generat-ing Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 863 (1974). There is some indication that a matter of recurring importance may be appealed 3 in a particular case even though it may no longer be determinative in the case. However, if it is of insufficient general importance (for instance, whether existing guidelines concerning cross-examination were properly applied in an individual case), the Appeal Board will refuse to hear the appeal. Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-461, 7 NRC 313, 316 (1978). l There is no right to an administrative appeal on every factual I finding. Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 28), ALAB-467, 7 NRC 459, 461 n.5 (1978). I In normal circumstances, an appeal will lie only from unfavorable action taken by the Licensing Board, not from wording of a decision with which a party disagrees but which has no operative effect. Duke Power Company (Cherokee Nuclear Station, Units 1, 2 & 3), ALAB-482, 7 NRC 979, 980 (1978). 5.5.1 Issues Raised for the First Time on Appeal Although the Appeal Board "might make an exception in the case of a serious substantive issue as to which a genuine problem has been demonstrated, (it) ordinarily will not entertain an issue raised for the first time on appeal." Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 NRC 341, 348 (1978) (issues not raised in either proposed findings or exceptions to the initial decision). Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 907 (1982), citina, Hartsville, suora; Public Service Electric and Gas Co. (Salem Generating Station, Unit SEPTEMBER 1988 APPEALS 8
l J l' m 9-5.5.1 i
'V) f 1), ALAB-650, 14 NRC 43, 49 (1981);. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 NRC 17, 22 i
(1983); , Philadelphia Electric Co. (Limerick Generating l Station, Units 1 and 2), ALAB-828, 23 NRC 13,-20 (1986); ! Georaia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127, 133 (1987). Thus, as a general rule, an appeal may be taken only as to matters or issues raised at the hearing. Public Service Electric and Gas
.0_h (Salem Nuclear Generating Station, Unit 1), ALAB-650,14' NRC 43 (1981); Metropolitan Edison Co. (Three Mile Island Nuclear Stat'- Unit 2), ALAB-486, 8 NRC 9, 28 (1978);
Florida Powe ., iaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAb ...', 3 NRC 830, 842 n.26 (1976); Maine Yankee Atomic Power Ct (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1021 (1973); Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 343 (1973). The Appeal Board will not entertain a contention for the first time on appeal, absent a serious substantive issue, where a party has not pursued the contention before the Licensing Board through proposed findings of fact. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982), citina, Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981). The Appeal Board's n disinclination to entertain an issue raised for the first time on appeal is particularly strong where the issue and factual f]\~ averments underlying it could have been, but were not, timely put before the Licensing Board. Puerto Rico Electric Power Authority (North Coast Nuclear Power Plant, Unit 1), ALAB-648, 14 NRC 34 (1981). An intervenor who seeks to raise a new issue on appeal must satisfy the criteria for reopening the record as well as the requirements concerning the admissibility of late-filed contentions. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC 220, 248 n.29 (1986). Although the absence of an appeal does not deprive the Appeal Board of the right to review an issue contested before a Licensing Board, the Appeal Board must be judicious in taking up new matters not previously put in controversy. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245, 247 (1978). An appeal may only be based on matters and arguments raised below. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 20 (1986);
/' Philadelphia Electric Co. (Limerick Generating Station,
(
' Units 1 and 2), ALAB-836, 23 NRC 479, 496 n.28 (1986);
Philadelphia Electric Co. (Limerick Generating Station, SEPTEMBER 1988 APPEALS 9
$ 5.5.2 Units 1 and 2), ALAB-845, 24 NRC. 220, 235 (1986); . Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 273, 281 (1987). Even though a party may have timely objected to a Licensir+ Board's ruling on an , issue, an Ap)eal Board will not consider new arguments offered by t1e party against the ruling when those arguments j were not raised before the Licensing Board. Duke Power Co- . (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 82-83 (1985). Cf. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-27, 22 NRC 126, 131 n.2 (1985). Egg Carolina Power and Liaht Co. and North Carolina Eastern Muncioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 812 (1986); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 , and 2), ALAB-880, 26 NRC 449, 457 -(1987). A party cannot be heard to complain later about a decision that fails to address an issue no one sought to raise. Philadelphia Electric Co. ! (Limerick Generating Station, Units 1 and 2), ALAB-778, 20 NRC ] 42, 47-48 (1984). A party is not permitted to raise on appellate review Licensing Board practices to which it did not object at the hearing stage. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 378 (1985). ! l The jurisdiction of an Appeal Board to consider new matters i arising during the course of its review of a Licensing Board decision does not hinge upon the nature of the proceeding. Rather, irrespective of whether a construction permit or an operating license is involved, the pivotal factor is the posture of the case and the degree of finality which has attached to the agency action which is in question. Where finality has attached to some but not all issues, Appeal Board i ju~risdiction to entertain new matters is dependent upon the existence of a reasonable nexus between those matters and the issues remaining before the Board. Virainia Electric & Power Comoany (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 707 (1979). 5.5.2 Effect on Appeal of Failure to File Proposed Findings The Appeal Board is not required to review exceptions where no proposed findings and rulings were filed by the appellant on the issue with respect to which the appeal is taken. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3, 4 n.2 (1975). However, while a party's failure to file proposed findings on an issue may be "taken into account" by the Appeal Board if the party later appeals that issue, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 AEC 857, 864 (1974); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 333 (1973), absent a Licensing Board order requiring the submission of proposed findings of fact and conclusions
. SEPTEMBER 1988 APPEALS 10
! X 9 5.6.1 J!V) of law, an intervenor that does not make such a filing nevertheless is free to pursue on appealcall issues it litigated below. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17,19, 20 (1983). 5.5.3 Matters Considered on Appeal of Ruling Allowing Late Interven-tion One exception to the rule prohibiting interlocutory appeals is that a party opposing intervention may appeal an order admitting the intervenor. 10 CFR 9 2.714a. See also Public Service Co. of Indiana (Marble Hill Nuclear Generating Sta-tion, Units 1 & 2), ALAB-339, 4 NRC 20, 23 n.7 (1976). How-ever, since Licensing Boards have broad discretion in allowing late intervention, an Appeal Board's review of an order allowing late intervention is limited to determining whether that discretion has been abused. Viroinia Electric & Power QL (North Anna Power Station, Units 1 & 2), ALAB-342, 4 NRC 98, 107 (1976); Marble Hill, suora. The Appeal Board will look to the papers filed in the case and the uncontroverted facts set forth therein to determine if the Licensing Board abused its discretion. Elprida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8 (1977). 5.5.4 Consolidation of Appeals on Generic Issues iO The Appeal Board consolidated and scheduled for hearing radon cases where interveners are actively participating, and held the remaining cases in abeyance. Where the issues are largely generic, consolidation will result in a more manage-able number of litigants, and relevant considerations will likely be raised in the first group of consolidated cases. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-540, 9 NRC 428, 433 (1979), reconsid. denied, ALAB-546, 9 NRC 636 (1979). 5.6 Appeal Board Action 5.6.1 Role of Appeal Board The Appeal Board's role is generally that of an appellate tribunal. For example, it will not police a licensee's compliance with license conditions, a matter suitable for the Commission's enforcement branch. Public Service Co. of ; New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-356, 4 NRC 525 (1976). Under 10 CFR 9 2.718(i) and D 2.785(b), Appeal Boards I have the power to direct the certification, of legal issues raised in proceedings pending before Licensing Boards. < O Exceptional circumstances must be demonstrated, however, before a Board will exercise that authority. Public Service Co. of New Hampshire (Seabrook Station, Units 1 MARCH 1988 APPEALS 11 u_-_.__m.__.m____ - . _ _ _ _ _ _ _ _ _ _ _ _ _
5 5.6.1 and 2), ALAB-737, 18 NRC 168, 171 (1983), citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975). The Appeal Board reviews all initial decisions and the record, regardless of whether appeals have been taken. Sgh u, South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-114, 6 AEC 253 (1973); Cincinnati Gas l
& Electric Co. (William H. Jimmer Station), ALAB-79, 5 AEC 342 (1972). Where appeals are filed, the Appeal Board is not limited in its review to those issues raised in the appeals.
Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 AEC 358, 361 (1973). Although it has the power to do so, the Appeal Board will not ordinarily conduct a de novo review of the record and make its own independent fi.ndings of fact since the Licensing Board is the basic fact-finder under Commission procedures. Wisconsin Electric Power Co. (Point Beach Nuclear Plant No. 2), ALAB-78, 5 AEC 319 (1972). Nevertheless, the Appeal Board, as part of its customary sua sponte review of an initial decision in the absence of an appeal, may examine independently and with care the totality of the evidence if the matter at hand is of an unusual character. Southern California Edison Co. and San Dieao Gas & Electric Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-432, 6 NRC 465 (1977). In this vein, in an operating license proceeding, the Appeal Board will search the record under its sua sponte authority to ensure.that there are no significant safety issues requiring corrective-action. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-729,17 NRC 814, 889 (1983), aff'd on other arounds, CLI-84-11, 20 NRC 1 (1984). In addition, an Appeal Board has authority to make factual < findings, on the basis of record evidence, which are different ! from those reached by a Licensing Board and can issue supplementary findings of its own. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 42 (1977). The Appeal Board is free to disagree with ; the lower board's regulatory interpretation even if no party presses an appeal on the issue. Southern California Edison
.C_b (San Onofre Nuclear Generating Station, Units 2 and 3),
ALAB-680, 16 NRC 127, 135 n.10 (1982), citino, Virainia l Electric and Power Co. (North Anna Nuclear Power Station, ! Units 1 and 2), ALAB-491, 8 NRC 245, 247 (1978). The Appeal Board decision can be based upon grounds completely foreign to those relied upon by the Licensing Board so long as the parties had a sufficient opportunity to address those new grounds with argument and, where appropriate, evidence. Ida. However, notwithstanding its authority to do so, the Appeal Board will normally be reluctant to search the record to determine whether it included sufficient information to support conclusions for which the Licensing i Board failed to provide adequate justification. A remand, . MARCH 1988 APPEALS 12 i
l I
~._ 6 5.6.1
.j very possibly accompanied by an outright vacation of the result reached below, would be the usual course where the Licensing Board's decision does not adequately support the conclusions reached therein. Seabrook, suora, 6 NRC at 42. An Appeal Board is not obligated to rule on every discrete z point adjudicated below, so long as the Board is able to l render a decision on other grounds that effectively dispose 1 of the appeal. Duke Power Co. (William B. McGuire Nuclear l Station, Units 1 and 2), ALAB-669, 15 NRC 453, 466 n.25 I (1982), citina, Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-625, 13 NRC 13, 15 (1981). The Appeal Board is not subject to the jurisdictional limitations placed upon Federal courts by the " case or controversy" provision in Article III of the Constitution. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714, 17 NRC 86, 93 (1983), citina, Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-455, 7 NRC 41, 54 (1978), remanded on other arounds sub nom. Minnesota v. Nuclear Reaulatory Commission, 602 F.2d 412 (D.C. Cir.1979). Therefore, there is no insuperable barrier to the Appeal
- Board's rendition of an advisory opinion on issues which have '
(m) been indisputably mooted by events occurring subsequent to a V Licensing Board's decision. However, this course will not be embarked upon in the absence of the most compelling cause. l Comanche Peak, 17 NRC at 93; Northern States Power Comoany (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 54 (1978). The Appeal Board, and the NRC in general, lacks the power to decide whether a civil penalty assessed against an applicant should be borne by the applicant's stockholders rather than its ratepayers. This is a matter to be determined by State regulatory agencies. Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 198 (1978). Once a partial initial decision (PID) has been appealed, supervening factual developments relating to major safety issues considered in the PID should be raised before the Appeal Board, not the Licensing Board. Gulf States Utilities A (River Bend Station, Units 1 & 2), ALAB-383, 5 NRC 609 (1977). The Appeal Board normally lacks jurisdiction to entertain motions seeking review only of actions of the Director of Nuclear Reactor Regulation; the Commission itself is the forum (N for such review. 53_q 10 CFR @ 2.206(c), Detroit Edison Co. (V ) (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-466, 7 NRC 457 (1978). MARCH 1988 APPEALS 13
9 5.6.1 Although the absence of an appeal does not deprive the Appeal Board of the right to review an issue contested before a Licensing Board, the Appeal Board must be judicious in taking up new matters not previously put in controversy. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245, 247 (1978). An Appeal Board has the aLthority to take evidence -- partic- , ularly in regard to limited matters as to which the record is { incomplete. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units IA, 2A,1B & 28), ALAB-467, 7 NRC 459, 461 (1978). However, since the Licensing Board is the initial , fact-finder in NRC proceedings, an Appeal Board will exercise { its authority to take evidence only in exceptional circum-stances. Public Service Co. of New Hampshire (Seabrook Sta-tion, Units 1 and 2), ALAB-891, 27 NRC 341, 351 (1988). It is well-settled that the Appeal Board is empowered to decline the acceptance of a Licensing Board referral. Qq8_q {! Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464 (1982), vacated in part on other arounds, CLI-83-19, 17 NRC 1041 (1983); Consumers Power Co. (Midland Plant, Units _1 and 2), ALAB-634, 13 NRC 96 (1981); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1191 (1977). When the time within which the Commission might have elected to review an Appeal Board decision expires, any residual jurisdiction retained by the Appeal Board expires. 10 CFR S 2.717(a); Washinaton Public Power Supoly System (WPPSS Nu-clear Project Nos. 3 and 5), ALAB-501, 8 NRC 381, 382 (1978). An adjudicatory board does not have jurisdiction to reopen a record with respect to an issue when finality has attached to the resolution of that issue. This conclusion is not altered , by the fact that the board has another discrete issue pending l before it. Public Service Company of New Hampshire (Seabrook ) Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978); J Philadelphia Electric Co. (Limerick Generating Station, Units ' I and 2), LBP-83-25, 17 NRC 681, 684 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-782, 20 NRC 838, 841 n.8 (1984), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ; ALAB-766, 19 NRC 981, 983 (1984); Louisiana Power and Licht I [q,. (Waterford Steam Electric Station, Unit 3), ALAB-792, 20 NRC 1585, 1588 (1984), clarified, ALAB-797, 21 NRC 6 (1985); i Metropolitan Edison Co. (Three Mile Island Nuclear Station, ] Unit No. 1), ALAB-821, 22 NRC 750, 752 (1985). ], Where finality has attached to some, but not all, issues, an Appeal Board has jurisdiction to consider new matters when there is a reasonable nexus between those matters and the issues remaining before the Board. Pacific Gas SEPTEMBER 1988 APPEALS 14
,, 6 5.6.1 l )
("/ and Electric Co. (Diablo Canyon Nuclear Power Plart, Units 1 ( and 2), ALAB-782, 20 NRC 838, 841 n.9 (1984), citina, Virainia Electric and Power Co. (North Anna Nuclear Power Station, l Units 1 and 2), ALAB-551, 9 NRC 704, 707 (1979); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-792, 20 NRC 1585, 1588 (1984), clarified, ALAS-797, 21 NRC 6 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-821, 22 NRC 750, 752 (1985). Sag Houston Lichtino and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, 21 NRC 1707, 1714 (1985). It is unimportant whether the issues pending before the Appeal Board arose from a motion to. reopen the record or from an appeal of a Licensing Board decision. The focus is on whether and what issues remain before the Appeal Board. Waterford, supra, 20 NRC at 1589 n.4, citina, North Anna, supra, 9 NRC at 708. An Appeal Board has the inherent right to determine in the first instance the scope of its jurisdiction. Thus, an Appeal Board has jurisdiction to consider a petition which challenges its decisionmaking process, even though jurisdiction over the substantive decisions themselves has passed to the Commission on appeal. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-840, 24 NRC 54, 58-59 and n.2 (1986), vacated, CLI-86-18, 24 NRC 501 (1986). 7 V Appeal Board review will be routinely undertaken of Anyn final disposition of a licensing proceeding that either was or had to be founded upon substantive determinations of significant safety or environmental issues. Washinaton Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571,10 NRC 687, 692 (1979), cited in Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 2 and 3), ALAB-652, 14 NRC 627, 628 (1981); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739,18 NRC 335, 341 (1983), citina, Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655,14 NRC 799, 803 (1981); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-826, 22 NRC 893, 894 (1985). In the course of its review of an initial decision in a construction permit proceeding, an Appeal Board is free to sua soonte raise issues which were neither presented to nor considered by the Licensing Board. Viroinia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 & 2), , ALAB-551, 9 NRC 704, 707 (1979). l If conditions on a license are invalid, the Appeal Board may either remand the matter or prescribe a remedy itself. 4 l Carolina Power &_Liaht Co. (Shearon Harris Nuclear Power p Plant, Units 1, 2, 3 & 4), ALAB-577, 31 NRC 18, 31 (1980), reconsidered, ALAB-581, 11 NRC 233 (1980), modified, CLI-(v) I I 80-12, 11 NRC 514 (1980). MARCH 1988 APPEALS 15
i Once an Appeal Board has wholly terminated its review of an initial decision -- whether it be a construction permit or an operating license proceeding -- its jurisdiction over the proceeding comes to an end. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-551, 9 NRC 704, 708 (1979). Appeal Board opinions that, in the circumstances of the particular case, are essentially advisory in nature will be reserved (if given at all) for issues of demonstrable recurring l importance. Lono Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743, 18 NRC 387, 390 n.4 (1983). ! Jurisdiction to rule on a motion to reopen filed after an appeal has been taken to an initial decision rests with the Appeal Board rather than the Licensing Board. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-726, 17 NRC 755, 757 n.3 (1983), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-699, 16 NRC 1324, 1327 (1982); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, 21 NRC 1707, 1713 n.5 (1985). Until exceptions are filed, there is literally no appeal to invoke Appeal Board jurisdiction. Limerick, supra, 17 NRC at 758. See cen_erally 10 CFR 9 2.762(a); 10 CFR 9 2.785. Thus, although an NRC Appeal Board has broader powers than most appellate bodies, neither the Board's sua soonte review authority nor its power, in exceptional circumstances, to take evidence and make its own factual determinations enhances its knowledge of'a proceeding before the proceeding reaches its docket or operates to give it jurisdiction over an initial decision immediately upon the initial decision's issuance. Limerick, supra, 17 NRC at 758. Once an appeal has been filed from a Licensing Board's decision resolving a particular issue, jurisdiction over that issue passes from the Licensing Board to the Appeal Board. Georaia Power Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-859, 25 NRC 23, 27 (1987). 5.6.2 Parties' Opportunity to be Heard on Appeal On considering an issue on appeal, the Appeal Board should not act on the issue on the basis of the receipt of Staff views only without affording equal opportunity to other parties to express their views. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-76-14, 4 NRC 163 (1976); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-74-12, 7 AEC 203, 204 n.3 (1974). MARCH 1988 APPEALS 16
>t h
L[
! ' .(
$ 5.6.3 Requests for emergency' relief which require adjudicatory boards-to act without giving the parties who will be adversely affected a chance to be heard ought to be reserved.for-palpably meritorious cases and filed only for.the most serious reasons. The Appeal Board will grant emergency relief without affording the adverse parties at least some oppor-tunity to be heard in opposition only in the most extraordi-nary circumstances. Consumers Power Co. (Midland Plant, Units
; I and 2), ALAB-395, 5 NRC 772, 780 n.27.(1977).
5.6.3 Standards for Reversing Licensing Board on Findings of Fact The Commission's regulations explicitly provide that the Commission or the Appeal Board has the authority to modify
~
or set aside findings made by the Licensing-Board. 10 CFR ls 2.740(b), 2.785; Public Service Co. of New Hampshire (Scabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 29 (1978). In acting for the Commission, the Appeal Board need not accept every finding a Licensing Board makes and the Appeal Board will not apply the " clearly erroneous"~ test of Rule 52(a) of the Federal Rules of Civil Procedure, which governs appellate e review of district court findings. But the Appeal' Board is ( not free to disregard the fact that Licensing Boards are the ( Commission's primary factfinding tribunals. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 858, 867 (1975). In this regard, Appeal Boards are reluctant to make essentially basic environmental findings which did not receive Staff consideration in the FES or adequate attention at the Licensing Board hearing. Texas M11]_ities Generatina Co. (Comar.che Peak Steam Electric Station, Units 1 and 2), ALAB-260, 1 NRC 51, 55 (1975). Although an Appeal Board is not bound by the factual findings of the Licensing Board, until the Appeal Board can review the record itself or the appellant demonstrates the inadequacy of the Licensing Board's findings, those findings deserve the Appeal Board's respect. Ig.)edo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621 (1977). The normal deference that an appellate body owes to the trier of the facts when reviewing a decision on the merits is thus even more compelling at the preliminary state of review. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 133 (1982),
.c.jling, Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 629 (1977).
JUNE 1987 APPEALS 17 L________-___
l In general, an Appeal Board has the right to' reject or modify findings of a Licensing Board if, after giving the Licensing Board's decision the probative force it intrinsically commands, the Appeal Board is convinced that the record compels a different result. Niaaara Mohawk Power Coro. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 357 (1975); accord, Northern Indiana Public Service Co., ALAB-303 suora; Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 834 (1984); Carolina Power and liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 531 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 537 (1986); Carolina Power and Liaht Co. and North Carolina j Eastern Municfpal Power Aaency (Shearon Harris Nuclear Power l Plant), ALAB-856, 24 NRC 802, 811 (1986); General Public ' Utilities Nuclear Coro._ (Three Mile Island Nuclear Station, Unit 1), ALAB-881, 26 N9.C 465, 473 (1987). The .same standard applies even if the Appeal Board is conducting a review Aug sconte. Sacramento Municipal l'tility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 803 (1981). In fact, where the record will fairly sustain a result deemed
' preferable" by the agency to the one selected by the ,
Licensing Board, the agency may substitute its judgment for that of the lower Board. Tennessee Valley Authority (Harts-ville Nuclear Plant, Units IA, 2A, IB & 2B), ALAB-367, 5 NRC 92 (1977); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-355, 4 NRC 397, 402-405 (1976). Nevertheless, a finding by a Licensing Board will not be overturned simply because the Appeal Board might have reached a different result had it been the primary fact-finder. Pacific Gas & Electric [p_,. (Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-254, 8 AEC 1184, 1187-1188 (1975); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 322 (1972). Moreover, the " substantial evidence" rule does not apply to the NRC's internal review process and hence does not control an Appeal Board's evaluation of Licensing Board 1 decisions. Catawba, suora, 4 NRC at 402-405. 1 Notwithstanding its authority to do so, the Appeal Board will normally be reluctant to search the record to deter-mine whether it included sufficient information to sup-port conclusions for which the Licensing Board failed to provide adequate justification. A remand, very possibly accompanied by an outright vacation of the result reached below, would be the usual course where the Licensing Board's decision does not adequately support the conclu-sions reached therein. Public Service Co. of New Hamo- . shire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC l MARCH 1988 APPEALS 18 _ _ _ _ _ _ _ _ - - - - _ _ _ _ i
6 5.6.3
)
t ,/ 33, 42 (1977). Thus, a Licensing Board's failure to clearly set forth the basis for its decision is ground for reversal. The Appeal Board is not constrained to reverse the Licensing Board, however. The Appeal Board may make factual findings based on its own review of the record and decide the case accordingly. Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1087 n.12 (1983). Licensing Board determinations on the timeliness of filing of motions are unlikely to be reversed on appeal as long as they are based on a rational foundation. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 159-160 (1986), rev'd in oart on other arounds, CLI-87-12, 26 NRC 383 (1987). A Licensing Board's determination that an intervenor has properly raised and presented an issue for adjudication is entitled to substantial deference and will be overturned only when it lacks a rational foundation. Jang Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-855, 24 NRC 792, 795 (1986). On specific matters, a Licensing Board's determination as to a petitioner's " personal interest" will be reversed only if it is irrational. Duauesne Licht Co. (Beaver Valley Power
- w. Station, Unit 1), ALAB-109, 6 AEC 243, 244 (1973); Northern States Power Co. (Prairie Island Nuclear Generating Plant, (V)
Units 1 & 2), ALAB-107, 6 AEC 188, 193 (1973). Where a Licensing Doard has permitted a petitioner to amend his petition to cure defects prior to issuance of a final order, allowance of an opportunity to amend will not be disturbed by the Appeal Board absent a showing of gross abuse of discre-tion. Prairie Island, lupra. A determination of fact in an adjudicatory proceeding which is necessarily grounded wholly in a nonadversary presentation is not entitled to be accorded generic effect, even if the determination relates to a seemingly generic matter rather than to some specific aspect of the facility in question. Washinaton Public Power Supply System (WPPSS Nuclear Projects No. 3 & 5), ALAB-485, 7 NRC 986, 980 (1978). Adjudicatory decisions must be supported by evidence properly l in the record. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580,11 NRC 227, 230 (1980). An Appeal Board will affirm a Licensing Board finding which was based on testimony later withdrawn from the record, i if there is sufficient evidence elsewhere in the record to ! support the finding. Cleveland Electric illuminating Co. 1 (Perry Nuclear Fower Plant, Units I and 2), ALAB-841, 24 NRC l 64, 84 (1986). p) ( Where a Licensing Board imposes an incorrect remedy, an Appeal Board will search for a proper one. Carolina Power MARCH 1988 APPEALS 19 1
5 5.6.4
& Liaht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 i
& 4), ALAB-581, 11 NRC 233, 234-235 (1980), modified, CLI 12, 11 NRC 514 (1980).
5.6.4 Grounds for Inmediate Suspension of Construction Permit by Appeal Board i The Appeal Board, ancillary to its appellate jurisdiction, has authority to suspend a decision authorizing issuance of a construction permit. Union Electric Co. (Callaway Plant, Units 1 & 2), ALAB-348, 4 NRC 225 (1976). Immediate revocation or suspension of a construction permit, upon review of the issuance thereof, is appropriate if the Appeal Board finds deficiencies that: (a) pose a hazard during construction; (b) need to be corrected before further construction takes place; (c) are incorrectable; or (d) might result in significant environmental harm if construction is permitted to continue. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-268, 1 NRC 383, 401 (1975). Whether a public utility commission's consent is required before construction contracts can be entered into and carried out is a question of State law. If the State authorities want to suspend construction pending the results of the public utility commission's review, it is their prerogative. But the Appeal Board will not suspend construction on the " strength of nothing more than potentiality of action adverse to the ; facility being taken by another agency" (citation omitted). Cleveland Electric Illuminating Co. (Perry Nuclear Power ; Plant, Units 1 & 2), ALAB-443, 6 NRC 741, 748 (1977). 5.6.5 Immediate Effectiveness of Appeal Board Decision j Decisions of Appeal Boards which are immediately effective are presumptively valid. Unless and until such a decision is stayed or overturned by the appropriate authority, it is entitled to full recognition. Public Service Co. of New liampshire (Seabrook Station, Units 1 & 2), ALAB-423, 6 NRC 115, 117 (1977). Decisions and orders of an Appeal Board are immediately effective. Absent an Appeal Board's or the Commission's issuance of a stay, a Licensing Board is both entitled and duty-bound to carry out Appeal Board directives with suitable dispatch. Duke Power comoany (Perkins Nuclear MARCH 1988 APPEALS 20 - -_ __ 1
l i
^3 6 5.6.7 I
'V Station, Units 1, 2, and 3), ALAB-597, 11 NRC 870, 873-874 l (1980).
5.6.6 Effect of Appeal Board Affirmance as Precedent 1 If an Appeal Board affirms a Licensing Board decision as to which no exceptions have been filed without extended discus-sion, the Licensing Board's decision does not necessarily have the same precedential value as Appeal Board decisions. 1 Portland General Electric Co. (Trojan Nuclear Plant), ALAB- ' 181, 7 AEC 207, 208 n.4 (1974). Where no exceptions have been filed and the Appeal Board states that there is "no error requiring corrective action," the Appeal Board's affirmance of the Licensing Board's decision cannot be read as necessarily signifying approval of everything said by the Licensing Board. The inference cannot be drawn that the Appeal Board agrees with all the reasoning by which the Licensing Board justified its decision or with the Licensing Board's discussion of matters which do not have a direct bearing on the outcome. IL; Consumers Power Co. (Big Rock Point Plant), ALAB-795, 21 NRC 1, 2-3 (1985). An Appeal Board will not give stare decisis effect to Licensing Board conclusions on legal issues not brought to it by way of an appeal. Arizona Public Service Co. (Palo Verde (O
'") Nuclear Generating Station, Units 1, 2 and 3), ALAB-713, 17 NRC 83, 85 (1983), citino, Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-482, 7 NRC 979, 981 n.4 (1978); General Electric Co. (Vallecitos Nuclear Center -
General Electric Test Reactor, Operating License No. TR-1), ALAB-720, 17 NRC 397, 402 n.7 (1983); Consumers Power Co. (Big Rock Point Plant), ALAB-795, 21 NRC 1, 2 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-826, 22 NRC 893, 894 n.6 (1985). See Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, Unit 1), ALAB-893, 27 NRC 627, 629 n.5 (1988). 5.6.6.1 Precedential Effect of Unpublished Opinions of Appeal Boards j Unless published in the official NRC reports, decisions and orders of Appeal Boards are usually not to be given preceden-tial effect in other proceedings. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-592, 11 NRC 744, 745 (1980). l 5.6.7 Disqualification of Appeal Board Member In denying a petition to review a decision by an Appeal Board member who decided not to recuse himself, the Com-mission ruled that in the absence of bias, an Appeal Board (3 member who participated as an adjudicator on appeal in a construction permit proceeding need not disqualify himself () from participating as an adjudicator in the operating SEPTEMBER 1988 APPEALS 21 l u________ _ _ _ _ _ _ _ _ _ _
5 5.7 j license proceeding for the same facility. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-80-11, 11 NRC 511, 512 (1980). 5.7 Stavs Pendina Appeal Under 10 CFR S 2.764(f)(2), upon receipt of a Licensing Board's decision authorizing the issuance of a full power operating license, the Commission will determine, sua sconte, whether to stay the effectiveness of the decision. Criteria to be considered by the Commission include, but are not limited to: the gravity of the substantive issue; the likelihood that it has been resolved incor-rectly below; and the degree to which corrcct resolution of the issue would be prejudiced by operation pending review. Until the Commis-sion speaks, the Licensing Board's decision is considered to be ' automatically stayed. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-647, 14 NRC 27 (1981); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-85-13, 22 NRC 1, 2 n.1 (1985); Philadelphia Electric Co. (Limerick Generat-ing Station, Units 1 and 2), CLI-85-15, 22 NRC 184, 185 n.2 (1985). An intervenor's speculative comments are insufficient grounds for a stay of a Licensing Board's authorization of a full power operating license. The intervenor must challenge the Licensing Board's sub-stantive conclusions concerning contested issues in the proceeding. 4 Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), CLI-87-1, 25 NRC 1, 4 (1987), aff'd, Eddleman v. NRC, 825 F.2d 46 (4th Cir. 1987). The Commission's denial of a stay, pursuant to its immediate j effectiveness review, does not preclude a party from petitioning i under 10 CFR 5 2.786 for appellate review of any Appeal Board ! decisions affirming the Licensing Board's conclusions. Shearon l Harris, supra, 25 NRC at 4 n.3, citina, 10 CFR S 2.764(9). l l Before a full power license can be issued for a plant, the Commis-sion must complete its immediate effectiveness review of the j' pertinent Licensing Board decision pursuant to 10 CFR 5 2.764(f)(2). Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 144 n.26 (1982). , i A stay of the effectiveness of a Licensing Board decision pending appeal of that decision to the Appeal Board may be sought by the party appealing the decision. Such a stay is normally sought by written motion, although, in extraordinary circumstances, a stay ex carte may be granted. See. ggt,,, Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-192, 7 AEC 420 (1974). The movant may submit affidavits in support of his motion; opposing parties may file opposing affidavits, and it is appropriate for the appellate tribunal to accept and consider such affidavits in ruling on the motion for a stay. Public Serv-ice Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-356, 4 NRC 525 (1976). The party seeking a stay bears the burden MARCH 1988 APPEALS 22
I L l 1 p) 9 5.7 l C/ of marshalling the evidence and making the arguments which demon-strate his entitlement to it. Consumers Power Co. (Midland Plant, ' Units 1 & 2), ALAB-395, 5 MC 772, 785 (1977). General assertions, in conclusionary terms, of alleged harmful effects are insufficient to demonstrate entitlement to a stay. United States Department of Enerov. Pro _iect Manaaement Coro., Tennes-see Valley Authority (Clinch River Breeder Reactor Plant), ALAB-721, 17 NRC 539, 544 (1983), citina, Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-505, 8 NRC 527, 530 (1978). In the past it has been held that, as a general rule, motions for stay of a Licensing Board action should be directed to the Licensing Board in the first instance. Under those earlier rulings, the Appeal Board made it clear that, while filing a motion for a stay with the Licensing Board is not a jurisdictional prerequisite to seeking a stay from the Appeal Board, Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10 (1976), the failure, without good cause, to first seek a stay from the Licensing Board is a factor which the Appeal Board may properly take into account in deciding whether it should itself grant the requested stay. See Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772 (1977); Public Service Co. of New Hampshire, ALAB-338 suora. See also Toledo Edison Co. (Davis-Besse Nuclear Power Plant),
, ALAB-25, 4 AEC 633, 634 (1971). More recently, however, amendments to 10 CFR S 2.788 on stays pending review have made it clear that a (oL) request for stay may be filed with either the Licensing Board or the i Appeal Board. 10 CFR s 2.788(f).
An Appeal Board has the power to stay the effectiveness of conditions imposed in a construction permit without staying the effectiveness of the permit itself. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621 (1977). An Appeal Board may also entertain and grant a motion for a stay pending remand of a Licensing Board decision. See Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977). In addition to stays pending appeals to the Appeal Board, the Appeal Board itself will entertain requests for stays pending. judicial review of its own decision. The Virainia Petroleum Jobbers criteria (these criteria have been incorporated into the regulations -- s_qq Section 5.7.1 infra) for granting stays are applicable in such a situation. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974). A party aggrieved by an Appeal Board decision denying a stay should apply to the Commission for a stay under 10 CFR 2.788(a), (h), rather than petition for review under 10 CFR 9 2.786(b). O Metropolitan Edison Company (Three Mile Island Nuclear Station, h Unit 2), CLI-78-3, 7 NRC 307, 308 n.2 (1978); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, MARCH 1988 APPEALS 23
)
9 5.7.1 7 NRC 1, 30 n.44 (1978). Under 10 CFR 9 2.788(a), a party may move ; for a stay of an Appeal Board decision pending Commission review if i such motion is filed within the period of time after service of the decision for which a stay is sought as set forth in Section 2.788(a). Consolidated Edison Co. of N.Y., Inc. (Indian Point Station, No. 2), ALAB-414, 5 NRC 1425, 1427 (1977). The date of service for purposes of computing the time for filing a stay motion under Section 2.788 is the date on which the Docketing and Service Branch of the Office of , the Secretary of the Commission serves the order or decision. Id_,. 1 at 5 NRC 1427-1428. Despite its subordinate status, an Appeal Board is empowered by 10 ) CFR 9 2.764(f)(2) to grant a 10 CFR 9 2.788 stay without regard to , what the Commission has done or might do in its sua sponte review. ! This power is granted at least in part because the factors that the Commission is to consider in making its 10 CFR 9 2.764 determination l do not coincide with the criteria set out for the Appeal Board in the Viroinia Petroleum Jobbers case. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-647, 14 NRC 27, 30 n.6 (1981). Sag Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191, 194-195 (1985). If, absent a stay pending appeal, the status ouo will be irreparably altered, grant of a stay may be justified to preserve the Commis-sion's ability to consider, if appropriate, the merits of a case. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-83-6, 17 NRC 333, 334 (1983). In certain situations an Appeal Board may review a stay request under the criteria embodied in the Commission's "immediate effectiveness" rule,10 CFR 9 2.764. When doina so, the Board will look at two factors in addition to those laio out in 10 CFR 9 2.788(e): whether effectiveness of the initial decision will create novel safety or environmental issues in light of the Three Mile Island accident or prejudice review of significant safety or environmental issues. 10 CFR 9 2.764(e)(2)(ii). United States Department of Eneroy. Pro.iect Manaaement Coro.. Tennessee Vallev Authority (Clinch River Breeder Reactor Plant), ALAB-721,17 NRC 539, 543 n.6 (1983). 5.7.1 Requirements for a Stay Pending Appeal The Rules of Practice do not provide for an automatic stay of an order upon the filing of a notice of appeal. Texas Utilities Generatino Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714, 17 NRC 86, 97 (1983). The Appeal Board has long held that a stay of an initial f decision will be granted only upon a showing similar to that required for a preliminary injur.ction in the Federal courts. Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-81, l 5 AEC 348 (1972). The test to be applied for such a showing ! is that laid down in Virainia Petroleum Jobbers Ass'n v. FP_G, 259 F.2d 921, 925 (D.C. Cir. 1958). MARCH 1988 APPEALS 24
m 9 5.7.1 i ) l V Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10 (1976); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-221, 8 AEC 95, 96 (1974); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-199, 7 AEC 478, 480 (1974); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-192, 7 AEC 420, 421 (1974). See also Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-647, 14 NRC 27 (1981); South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-643, 13 NRC 898 (1981); Florida Power and Licht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-81-30, 14 NRC 357 (1981); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 691 (1982); South Carolina Electric and Gas CL. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-84, 16 NRC 1183, 1184-85 (1982); Commonwealth Edison Co.. (Byron Nuclear Power Station, Units 1 and 2), LBP-83-40,18 NRC 93, 96-97 (1983); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 803 n.3 (1984); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-21, 20 NRC 1437, 1440 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1446 (1984); Duke Power Co. rm (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC { j 1630,1632 n.7 (1984); Philadelphia Electric Co2 (Limerick v Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595, 1599 (1985); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1618 (1985); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177,178 n.1 (1985); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191, 193, 194 (1985); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n.5 (1985); Texas Utilities Electric
.CL. (Comanche Peak Steam Electric Station, Unit 1), CLI 4, 23 NRC 113, 121-122 (1986); Philadelphia Electri_c_A (Limerick Generating Station, Unit 1), ALAB-835, 23 NRC 267, 270 (1986); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 5 (1986), rev'd and remanded on other arounds, San Luis Obispo Mothers For Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986);
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 435 (1987); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-877, 26 NRC 287, 290 (1987). Under this test, four factors are examined: (1) has the movant made a strong showing that it is likely to p prevail upon the merits of its appeal; (j' (2) has the movant shown that, without the requested relief, it will be irreparably injured; MARCH 1988 APPEALS 25
$ 5.7.1.
(3) would the issuance of a stay substantially harm other parties interested in the proceeding; (4) where does the public interest lie? The Virainia Petroleum Jobbers criteria for granting a stay have been incorporated into the regulations at 10 CFR 62.788(e). Southern California Edison Co. (San Or.ofre Nuclear Generating Station, Units 2.and 3), ALAB-680, 16 NRC 127, 130 (1982). Since that section merely codifies long-standing agency practice which parallels that of the courts, Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 170 (1978), prior agency case law delineating the application of the Viroinia Petroleum Jobbers criteria presumably remains applicable. The Virainia Petroleum Jobbers rule applies not only to stays of initial decisions of Licensing Boards, but also to stays of Licensing Board proceedings in general, Allied General Nuclear Services (Barnwell Nuclear Fuel Plant Separations facility), ! ALAB-296, 2 NRC 671 (1975), and stays pending judicial review, l Northern Indiana Public Service Co. (Bailly Generating ! Station, Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974). In 1 addition, the concept of a stay pending consideration by the Appeal Board of a petition for directed certification has been recognized. Kansas Gas & _ Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-307, 3 NRC 17 (1976). The rule applies to stays of limited work authorizations, Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-437, 6 NRC 630 (1977), as well as i to requests for emergency stays pending final disposition of a ! stay motion. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185, 1186-89 (1977). The rule also applies to stays of implementation and enforce-ment of radiation protection standards. Environmental Radiation Protection Standards for Nuclear Power Operations, (40 CFR S 190), CLI-81-4, 13 NRC 298 (1981); Uranium Mill Licensino Requirements (10 CFR Parts 30, 40, 70 and 150), CLI-81-9, 13 NRC 460, 463 (1981). It also applies to postpone-ments of the effectiveness of a license amendment issued by the NRC Staff. In the case of a request for postponement of i an amendment, the Ccmmission has stated that a bare claim of an absolute right to a prior hearing on the issuance of a 1 license amendment does not constitute a substantial showing of irreparable injury as required by 10 CFR S 2.788(e). Nuclear i Fuel Services. Inc. and New York State Enerav Research and Development Authority (Western New York Nuclear Service l Center), CLI-81-29, 14 NRC 940 (1981). O , JUNE 1987 APPEALS 26 l j
/m (v[ $ 5.7.1 The Commission has recently issued revised regulations.
concerning stays of the effectiveness of license amendments.
.10 CFR 5 50.58(b)(6), as amended in 51 Fed. Rea. 7744, 7765 (March 6, 1986). The NRC Staff's issuance of an immediately effective license amendment based on a "no significant hazards consideration" finding is a final determination which is not subject to either a direct apper.1 or an indirect appeal to the Commission through the request for.a stay. However, in special circumstances, the Commission may, on its own initiative, exercise its inherent discretionary supervisory authority over the Staff's actions in order to review the Staff's "no significant hazards consideration" determination.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC 1, 4-5 (1986), rev'd and remanded on other arounds, San Luis Obisoo Mothers For Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986). Note that 10 CFR 6 2.788 does not expressly deal with the matter of a stay pending remand of a proceeding to the Licensing Board. Prior to the promulgation of Section 2.788, the Commission held that the standards for issuance of a stay pending proceedings on remand are less stringent than those of the Viroinia Petroleum Jobbers test. Public Service Co. of O: New Hamoshire (Seabrook Station, Units 1, 2 & 3), CLI-77-8, 5 NRC 503 (1977). In this vein, the Commission ruled that the propriety of issuing a stay pending remand was to~be deter-mined on the basis of a traditional balance of equities and on consideration of possible prejudice to further actions resulting from the remand proceedings. Similarly, in Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772 (1977), the Appeal Board rLled that the criteria for a stay pending remand differ from those required for a stay pending appeal. Thus, it appears that the criteria set forth in 10 CFR s 2.788 may not apply to requests for stays pending remand. In this same vein, where a litigant who has prevailed on a judicial appeal of an NRC decision seeks a suspension of the effectiveness of the NRC decision pending remand, such a suspension is not controlled by the Virainia Petroleum Jobbers criteria but, instead, is dependent upon a balancing of all relevant equitable considerations. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155,159-60 (1978). In such circumstances, the negative impact of the court's decision places a heavy burden of proof on those j opposing the stay. & at 7 NRC 160. Where the four factors set forth in 10 CFR 9 2.788(e) are applicable, no single one of the factors is, of itself, necessarily dispositive. Rather, the strength or weak-ness of the movant's showing on a particular factor will i f_ determine how strong his showing on the other factors i i must be in order to justify the relief he seeks. Eublic , JUNE 1987 APPEALS 27
[ l Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-338, 4 NRC 10 (1976); Florida Power and Liaht Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-81-30,14 NRC 357 (1981); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n.8 (1985). In any event, there should be more than a mere I showing of the possibility of legal error by a Licensing Board i to warrant a stay. Philadelphia Electric Co., ALAB-221 suora; Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-158, 6 AEC 999 (1973). The establishment , of grounds for appeal is not itself sufficient to justify a l stay. Rather, there must be a strong probability that no i ground will remain upon which the Licensing Board's action could be based. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621 (1977). The factor which has proved most crucial in Appeal Board deliberations with regard to stays pending appeal is the question of irreparable injury to the movants if the stay is ! not granted. Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27,14 NRC 795 (1981); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-437, 6 NRC 630, 632 (1977); Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-716, 17 NRC 341, 342 n.1 (1983); United States Department of Enerav. Pro.iect Manaaement Coro., ! Tennessee Valley Authority (Clinch River Breeder Reactor , Plant), ALAB-721, 17 NRC 539, 543 (1983); Metropolitan Edis9n ! Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-789, 20 NRC 1443, 1446 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 i and 2), ALAB-794, 20 NRC 1630, 1633 n.11 (1984); Philadelphia l Electric Co. (Limerick Generating Station, Units 1 and 2), 1 ALAB-808, 21 NRC 1595, 1599 (1985); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 & n.7 (1985); Philadelphia Electric Co. (Limerick Generating Station, Unit 1), ALAB-835, 23 NRC 267, 270 (1986); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 436 (1987). Se_q, e.a., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC 715, 716 (1977); Rochester Gas and Electric Coro. (Sterling Power Project, ; Nuclear Unit 1), ALAB-507, 8 NRC 551, 556 (1978); Lona Island ! Liahtina Co. (Jamesport Nuclear Power Station, Units 1 , and 2), ALAB-481, 7 NRC 807, 808 (1978). See also l Westinghouse Electric Corot (Exports to the Philippines), I CLI-80-14, 11. NRC 631, 662 (1980). It is the established i rule that a party is not ordinarily granted a stay of an l administration order without an appropriate showing of , irreparable injury. Ida, quoting Permian Basin Area Rate l Cases, 390 U.S. 747, 773 (1968). A party must reasonably SEPTEMBER 1987 APPEALS 28 l 1
I
~
9 5.7.1 demonstrate, and not merely allege, irreparable harm. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191, 196 (1985), citina, Duke Power CA. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1633-35 (1984). The irreparable injury requirement is not satisfied by some cost merely feared as liable to occur at some indefinite time in the future. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621 (1977). Nor are actual injuries, however substantial in terms of money, time and energy necessarily expended in the absence of a stay, sufficient to justify a stay if not irreparable. Davis-Besse, suDra. Eqn E_ublic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 437-38 (1987). ; Similarly, mere litigation expense, even substantial and : unrecoupable cost, does not constitute irreparable injury. I Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 779 (1977); Allied-General Nuclear Service 1 (Barnwell Nuclear Fuel Plant Separation Facility), ALAB-296, 2 NRC 671 (1975); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984).
,m Similarly, the expense of an administrative proceeding is
( j usually not considered irreparable injury. Uranium Mill d Licensina Requirements (10 CFR Parts 30, 40. 70. and 150), CLI-81-9, 13 NRC 460, 465 (1981), citino, Meyers v. Bethlehem Shiobuildino Coro., 303 U.S. 41 (1938) and Hornblower and Weeks-Hemobill Neves. Inc. v. Csaky, 427 F. Supp. 814 4 (S.D.N.Y. 1977). The " level or degree of possibility of success" on the merits necessary to justify a stay will vary according to the tribunal's assessment of the other factors that must be considered in determining if a stay is warranted. Public Service Comoany of Indiana. Inc. (Marble Hill Nuclear _ Generating Station, Units 1 & 2), ALAB-437, 6 NRC 630, 632 (1977), citino, Washinaton Metropolitan Area Transit Commis-sion v. Holiday Tours, 559 F.2d 841 (D.C. Cir. 1977). Where there is no showing of irreparable injury absent a stay and the other factors do not favor the movant, an overwhelming showing of likelihood of success on the merits is required to obtain a stay. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-404, 5 NRC 1185,1186-1189 (1977); Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 746 n.8 (1985) (a virtual certainty of success on the merits), See also Florida Power & Liaht Co., ALAB-415, 5 NRC 1435, 1437 (1977) to substantially the same effect; Public Service Co. of New (N Hampshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC
) 430,439(1987).
SEPTEMBER 1987 APPEALS 29
9 5.7.1-To make a strong showing of likelihood of success on the merits, the movant must do more than list the possible grounds for reversal. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-385, 5 NRC 621 (1977); Alabama Power Co. -(Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795 (1981). A party's expression of confidence or expectation of success on the merits of its l appeal before the Commission or the Boards is too speculative and is also insufficient. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-814, 22 NRC 191, 196 (1985), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804-805 (19G4). On a motion for a stay, the burden of persuasion on the four factors of Virainia Petroleum Jobbers (now set forth in 10 CFR ,
@ 2.788) is on the movant. Public Service Co. of Indiana )
(Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 270 (1978); Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), CLI-81-27,14 NRC 795 (1981). In Lona Island Liahtina Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-481, 7 NRC 807, 808 (1978), the Appeal Board stressed the importance of the irreparable injury I requirement, stating that a party is not ordinarily granted a stay absent an appropriate showing of irreparable injury. Where a decision as to which a stay is sought does not allow the issuance of any licensing authorization and does not l affect the status auo ante, the movant will not be injured by the decision and there is, quite simply, nothing for the ; Appeal Board to stay. Jamesoort, supra. i The fact that an appeal might become moot following denial of a motion for a stay does not per se constitute irreparable injury. It must also be established that the activity that will take place in the absence of a stay will bring about concrete harm. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985), citina, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-794, 20 NRC 1630, 1635 (1984). Speculation about a nuclear accident does not, as a matter of law, constitute the imminent, irreparable injury required for staying a licensing decision. Cleveland Electric Illuminating
.C_o_,. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 NRC 743, 748 n.20 (1985), citina, Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-5, 19 NRC 953, 964 (1984); Philadelphia Electric Co. (Limerick Generating Station, Unit 1), ALAB-835, 23 NRC 267, 271 (1986). The risk of harm to the general public or the environment flowing from an accident during low-power testing is SEPTEMBER 1987 APPEALS 30
- 6 5.7.2
~
) insufficient to constitute irreparable injury. Eyhlic Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-865, 25 NRC 430, 437 (1987).
Mere exposure to the risk of full power operation of a facility does not constitute irreparable injury when the risk is so low as to be remote and speculative. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and . 2), CLI-85-14, 22 NRC 177, 180 (1985). i The importance of a showing of irreparable injury absent a stay was stressed by the Appeal Board in Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB- , 505, 8 NRC 527, 530 (1978), where the Appeal Board indicated i that a stay application which does not even attempt to make a I showing of irreparable injury is virtually assured of failure. 4 If the movant for a stay fails to meet its burden on the first two 10 CFR 9 2.788(e) factors, it is not necessary to give lengthy consideration to balancing the other two factors. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985), citina, Catawba, supra, 20 NRC at 1635. Sng Cleveland Electric Illuminating
.CA (Perry Nuclear Power Plant, Units 1 and 2), ALAB-820, 22 7 NRC 743, 746 n.8 (1985).
,/ )
t' Although an applicant's economic interests are not generally within the proper scope of issues to be litigated in NRC proceedings, a Board may consider such interests in determin-ing whether, under the third stay criterion, the granting of a stay would harm other parties. Thus, a Board may consider the potential economic harm to an applicant caused by a stay of the applicant's operating license. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-808, 21 NRC 1595, 1602-03 (1985). Sgea e.a., (rmisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-85-3, 21 NRC 471, 477 (1985); Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-404, 5 NRC 1185, 1188 (1977); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-85-14, 22 NRC 177, 180 (1985). 10 CFR s 2.788 confers the right to seek stay relief only upon those who have filed (or intend to file) a timely appeal from the decision or order sought to be stayed. Portland General , Electric Co. (Trojan Nuclear Plant), ALAB-524, 9 NRC 65, 68-69 (1979). 5.7.2 Stays Pending Remand After Judicial Review
+
n)
'v' Where a litigant who has prevailed upon a judicial appeal of an NRC decision seeks a suspension of the effectiveness of the NRC decision pending remand, such a suspension is SEPTEMBER 1987 APPEALS 31
i 9 5.8 l not controlled by the Virainia Petroleum Jobbers criteria / but, instead, is dependent upon a balancing of all relevant equitable considerations. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155,159-60 (1978). In such circumstances, the negative impact of the court's decision places a heavy burden of proof on those opposing the stay. & at 7 NRC 160. 5.8 Specific Apocalable Matters f 5.8.1 Rulings on Intervention 1 NRC regulations contain a special provision (10 CFR S 2.714a) i allowing an interlocutory appeal trom a Licensing Board ' order on a petition for leave to intervene. Under 10 CFR 9 2.714a(b), a petitioner may appeal such an order but only if the effect thereof is to deny the petition in its entirety -- ' i.e., to refuse petitioner entry into the case. Houston l Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-586, 11 NRC 472, 473 (1980); Puaet Sound Power and liaht A (Skagit/Hanford Nuclear Power Project, Units 1 and 2), ALAB-683, 16 NRC 160 (1982), citina, Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-599, 12 NRC 1, 2 (1980); Philadelphia Electric h (Limerick Generating Station, Units 1 and 2), ALAB-828, l 23 NRC 13, 18 n.6 (1986). Only the petitioner denied leave to j intervene can take an appeal of such an order. Detroit Edison ; A (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 " l NRC 17, 22 n.7 (1983), citina, 10 CFR S 2.714a(b). Petitioner may not appeal an order admitting him as an intervenor but denying certain of his contentions. Gulf States Utilities Co. (River Bend Station, Units 1 & 2), ALAB-329, 3 NRC 607 (1976); Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), ALAB-302, 2 NRC 856 (1975); Euerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-286, 2 NRC 213 (1975); Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 & 2), ALAB-273,1 NRC 492, 494 (1975); Boston Edison Co. (Pilgrim Nuclear Generating Station, Unit 2), ALAB-269, 1 NRC 411 (1975). Appellate review of a ruling rejecting some but not all of a petitioner's contentions is available only at the end of the case. Northern States Power Co. (Tyrone Energy Park, Unit 1), ALAB-492, 8 NRC 251, 252 (1978). Similarly, where a proceeding is divided into two segments for convenience purposes and a petitioner is barred from participation in one segment but not the other, that is not such a denial of participation as will allow an interlocu-tory appeal under 10 CFR 6 2.714a. River Bend, suora, 3 NRC 607. A State participating as an " interested State" under 10 CFR 6 2.715(c) may appeal an order barring such participa-tion, but it may not seek review of an order which permits SEPTEMBER 1987 APPEALS 32
k i 9 5.8.1 the State to participate but excludes an issue which it seeks
-to raise. River Bend, suora.
Only the petitioner may appeal. from an order denying it leave to intervene. USERDA (Clinch River Breeder. Reactor. Plant), ALAB-345, 4 NRC 212 (1976). Other parties may file briefs in support of or opposition to the appeel. -Id. The Applicant, the NRC Staff or.any other party may appeal an order granting a petition to intervene or request for a. hearing in whole or in part, but only on the grounds that the petition or request-should have been denied in whole. 10 CFR 9 2.714(c). A Licensing Board's failure, after a reasonable length of time, to rule on a petition to intervene is tantamount to.a denial of the petition'. Where the failure of the Licensing Board to act is both unjustified and prejudicial, the petitioner may seek interlocutory review of the Licensing Board's delay under 10 CFR 9 2.714a. Detroit Edison Co. (Greenwood Energy Center, Units 2 & 3), ALAB-376, 5 NRC 426 (1977). Pursuant to 10 CFR 9 2.714a, an appeal concerning an in-tervention petition must await the ultimate grant or dental
, n of that petition. Detroit Edison Comoany (Greenwood Energy i
(V Center, Units 2 & 3), ALAB-472, 7 NRC 570, 571 (1978). The action of a Licensing Board in provisionally ordering a hearing and in preliminarily ruling on petitions for leave to intervene is not appealable under 10 CFR 6 2.714a in a , situation where the Board cannot rule on contentions and the ; need for an evidentiary hearing until after the special prehearing conference required under 10 CFR 6 2.751a and where the petitioners denied intervention may qualify on refiling. Consumers Power Co. (Midland Plant, Units 1 & 2), LBP-78-27, 8 NRC 275, 280 (1978). Similarly, a Licensing Board order which determines that petitioner has met the " interest" requirement for intervention and that mitigating factors outweigh the untimeliness of the petition but does not rule on whether petitioner has met the " contentions" requirement is not a final disposition of the petition seeking leave to intervene. Detroit Edison Company (Greenwood Energy Center, Units 2 & 3), ALAB-472, 7 NRC 570, 571 (1978). 10 CFR s 2.714a does not authorize an appellant to file a brief in reply to parties' briefs in opposition to the appeal. Rather, leave to file a reply brief must be obtained. Nuclear Enaineerina Co. (Sheffield, Ill. Low-level Waste Disposal Site), ALAB-473, 7 NRC 737, 745 n.9 (1978). While the regulations do not explicitly provide for Com-p mission review of decisions on intervention, the Commission Q has entertained appeals in this regard and review by the
-SEPTEMBER 1987 APPEALS 33
S 5.8.2 Commission apparently may be sought. Florida Power & Liaht
% . (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939 (1978).
Under settled practice, Appeal Boards do not on their own initiative review Licensing Board orders granting or denying j intervention. If those affected do not deem themselves sufficiently aggrieved to appeal, there is no reason for Appeal Boards to concern themselves. Washinaton Public _P_2w._er Sucolv System (WPPSS Nuclear Project No. 2), ALAB-571,10 NRC 687, 688 (1979). 5.8.2 Scheduling Orders Since scheduling is a matter of Licensing Board discretion, ; the Appeal Boards generally will not interfere with scheduling decisions absent a "truly exceptional situation." Virainia Electric & Power Co. (North Anna Power Station, Unit 1 & 2), ALAB-584, 11 NRC 451, 467 (1980); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-295, 2 NRC 668 (1975); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-293, 2 NRC 660 (1975); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), , ALAB-224, 8 AEC 244, 250 (1974); Cleveland Electric Illuminat- l i ina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 95 (1986). See also O nsumers Power Co. (Midland ' Plant, Units 1 & 2), ALAB-344, 4 NRC 207, 209 (1976) (Appeal Board is reluctant to overturn or otherwise interfere with scheduling orders of Licensing Boards absent due process problems); and Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367 (1981) (Appeal Board is loath to interfere with a Licensing Board's denial of a request to delay a proceeding where the Commission has ordered an expedited hearing; in such a case there must be a
" compelling demonstration of a denial of due process or the l threat of immediate and serious irreparable harm" to invoke discretionary review); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 21 (1987) (petitioner failed to substantiate its claim that a Licensing Board decision to conduct simultaneous hearings deprived it of the right to a fair hearing); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-860, 25 NRC 63, 68 (1987) (Appeal Board declined to exercise directed certification authority where interveners' concerns about infringement of procedural due process were premature);
Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 273, 277 (1987) (intervenor failed to show specific harm resulting from the Licensing Board's severely abbreviated hearing schedule); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-864, 25 NRC 417, 420-21 (1987); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-889, 27 NRC 265, 269 (1988). JUNE 1988 APPEALS 34
, + .
[. rii1 s
.% > $ 5.8.3.2 In determining the fairnesstof a Licensing Board's l scheduling.
decisions, an Appeal Board.will consider the totality of.the c. relevant' circumstances disclosed by the. record.. Seabrook, supra, 25 NRC at 421; Seabrook, ALAB-889, suora, 27 NRC at f 269. a: Where'a party alleges.that a Licensing Board's expedited , hearing schedule violated.its right to procedural due process by unreasonably limiting its opportunity to conduct discovery, an Appeal- Board will examine: the amount of time allotted for discovery; the ~ number, . scope, and complexity.of. the , issues to i : be tried; whether there exists any practical reason or-necessity for the expedited schedule; and whether the party- . has demonstrated actual prejudice resulting from the expedited 2
. hearing schedule. Seabrook, suora, 25 NRC at 421, 425-427.-
Although, . absent special circumstances, the Appeal Board will generally review Licensing Board scheduling determinations only where confronted with'a claim of deprivation of due process, the Appeal Board may, on occasion,- review a Licensing Board scheduling matter when that scheduling appears to be-based on the Licensing Board's misapprehension of an Appeal Board directive. Egq3. 1,1., Consumers Power Co. (Midland
+ <
Plant, Units 1 & 2), ALAB-468, 7 NRC 464, 468 (1978). o Matters of scheduling rest peculiarly within the Licensing + Le Board's discretion; the Appeal Board is reluctant to review scheduling orders, particularly when asked to do so on an interlocutory basis. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-541, 9 NRC 436, 438 (1979).- 5.8.3 Discovery Rulings 1 5.8.3.1 Rulings on Discovery Against Nonparties An order granting discovery against a nonparty is final and-appealable by that nonparty as of right. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-122, 6 AEC 322 (1973). An order denying such discovery is wholly interlocutory and an immediate appeal by the party seeking discovery is excluded by 10 CFR 6 2.730(f). Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-ll6, 6 AEC 258 (1973); Lona Island Liahtina fa,_ (Shoreham Nuclear Power Station, Unit 1), ALAB-780, 20 NRC 378, 380-81 (1984). 5.8.3.2 Rulings Curtailing Discovery != In appropriate instances, an order curtailing discovery , is appealable. To establish reversible error from cur- l tailment of discovery procedures, a party must demonstrate that the action made it impossible to obtain crucial evi-dence, and implicit in such a showing is proof that more FO i JUNE 1988 APPEALS 35
S 5.8.4 diligent discovery is impossible. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-303, 2 NRC 858, 869 (1975). Absent such circumstances, however, an order denying discovery, and discovery orders in general are not immediately appealable since they are interlocutory. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469, 472 (1981); Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), ALAB-370, 5 NRC 131 (1977). 5.8.4 Refusal to Compel Joinder of Parties A Licensing Board's refusal to compel joinder of certain persons as parties to a proceeding is interlocutory in nature { and, pursuant to 10 CFR 9 2.730(f), is not immediately j appealable. Public Service Co. of Oklahoma (Black Fox I Station, Units 1 & 2), ALAB-370, 5 NRC 131 (1977). l 5.8.4.1 Order Consolidating Parties 1 Just as an order denying consolidation is interlocutory, an ; I order consolidating the participation of one party with others may not be appealed prior to the conclusion of the proceeding. Portland General Electric Company (Trojan Nuclear Plant), l ALAB-496, 8 NRC 308, 309-310 (1978); Public Service Co. of l Jpdiana. Inc. (Marble Hill Nuclear Generating Station, Units ! 1 & 2), ALAB-339, 4 NRC 20, 23 (1976). l 5.8.5 Order Denying Summary Disposition i l As is the case under. Rule 56 of the Federal Rules of Civil Procedure, an order denying a motion for summary disposition under 10 CFR 5 2.749 is not immediately appealable. Pennsyl-vania Power & Liaht Co_,. (Susquehanna Steam Electric Station, Units 1 and 2), ALA8-641, 13 NRC 550 (1981); Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-220, 8 AEC 93 (1974). Similarly, a deferral of action on, or denial of, a motion for summary disposition does not fall within the bounds of the 10 CFR 9 2.714a exception to the prohibition on interlocutory appeals, and may not be appealed. Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No. 1), ALAB-400, 5 NRC 1175 (1977). (See also 3.5). 5.8.6 Procedural Irregularities Absent extraordinary circumstances, an Appeal Board will not consider alleged procedural irregularities unless an appeal has been taken by a party whose rights may have been substan-tially affected by such irregularities. Boston Edison Co, (Pilgri n Nuclear Power Station, Unit 1), ALAB-231, 8 AEC 633, 634 (1974). JUNE 1988 APPEALS 36
-7 _9.5.8.10 r V' 5.8.7. Matters of Recurring Importance p .There is some-indication that a matter of recurring procedural .
L ' importance.may be appe'aled in a particular' case even though it 1 may no longer be determinative in that case. However, if it is of insufficient general importance-(for instance, whether 3 existing guidelines concerning cross-examination were properly i applied in an individual case), the Appeal Board will refuse f to hear the appeal. Public Service Comoany of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 316 (1978). 5.8.8 Advisory Decisions on Trial Rulings Advisory decisions on trial rulings which resulted in no discernible injury ordinarily will not be considered on appeal. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-157, 6 AEC 858 (1973). 5.8.9 Order on Pre-LWA Activities A Licensing Board order on the issue of whether offsite activity can be undertaken prior to the issuance of an LWA or a construction permit is immediately appealable as of right, p) i Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating
; Station, Unit 1), ALAB-331, 3 NRC 771, 774 (1976).
v 5.8.10 Partial Initial Decisions Partial initial decisions which do not yet authorize con-struction activities still may be significant and, therefore, immediately appealable as of. right. Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), ALAB-597, 11 NRC 870, 871 (1980); Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Units 1 & 2), ALAB-301, 2 NRC 853, 854 (1975). Although 10 CFR s 2.762(a), the sole provision in the Rules of Practice allowing appeals to the Appeal Board, refers only to
" initial decisions," a " partial initial decision" with regard to activities prior to the issuance of an LWA is an " initial decision" within the meaning of 10 CFR s 2.762(a), at least where the partial initial decision amounts to a final decision on the merits of the applicant's request for permission to do work prior to issuance of an LWA. Kansas Gas & Electric Co.
(Wolf Creek Generating Station, Unit 1), ALAB-331, 3 NRC 771 (1976). For the purposes of appeal, partial initial decisions which decide a major segment of a case or terminate a O party's right to participate, are final Licensing Board () actions on the issues decided. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-83-25, SEPTEMBER 1988 APPEALS 37
l l l 9 5.8.11 17 NRC 681, 684 (1983). See Boston Edison Co. (Pilgrim l Nuclear Power Station, Unit 2), ALAB-632, 13 NRC 91, 93 n.2 (1981). 5.8.11 Other Licensing Actions f When a Licensing Board, during the course of an operating license hearing, grants a Part 70 license to transport and store fuel assemblies, the decision is not interlocutory and is immediately appealable as of right. Pacific Gas & Electric
.0A (Diablo Canyon Nuclear Power Plant, Units 1 & 2), CLI- )
76-1, 3 NRC 73, 74 (1976). j l When a Licensing Board's ruling removes any possible ad-judicatory impediments to the issuance of a Part 70 license, , the ruling is immediately appealable. Philadelphia Electric j Co. (Limerick Generating Station, Units 1 and 2), ALAB-778, 20 ] NRC 42, 45 n.1 (1984), citina, Philadelphia Electric Co. l (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 NRC { 645, 648 n.1 (1984). See Public Service Co. of New Hamoshire l (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC 783, 787 (1986) (a Licensing Board's dismissal by summary disposition of an intervenor's contention dealing with fuel loading and precriticality testing may be challenged in connection with the intervenor's challenge of the order authorizing issuance of the license). 5.8.12 Rulings on Civil Penalties In a civil penalty case, an order by the Administrative Law , Judge affirming the Director of Inspection and Enforcement's order imposing civil penalties on a licensee, but at the same time granting a request for a hearing to present facts to support mitigation of the amount of the penalty, is not appealable under 10 CFR 6 2.762 because it is premature. An appeal at this point is foreclosed by 10 CFR @ 2.730(f). Section 2.730(f) is a rule of general applicability governing civil penalty proceedings to the same extent as it does licensing proceedings. Pittsburah-Des Moines Steel Co., ALAB-441, 6 NRC 725 (1977). 5.8.13 Evidentiary Rulings While all evidentiary rulings are ultimately subject to appeal at the end of the proceeding, not all such rulings are worthy of appeal. Some procedural and evidentiary errors almost in-variably occur in lengthy hearings where the presiding officer ! must rule quickly. Only serious errors affecting substantial rights and which might have influenced improperly the outcome of the hearing merit the hearing merit exception and briefing on appeal. Nortk rn Indiana Public Service Co. (Bailly Gener-ating Station, Nuclear-1), ALAB-204, 7 AEC 835, 836 (1974). SEPTEMBER 1988 APPEALS 38
w,
- y. 5 5.9.1 b.: ~ Evidentiary exclusions must affect a ' substantial right, and the t
substance _of: the evidence must be made known by way of an offer : of proof or be otherwise apparent, before the exclusions can be: considered errors. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673,.15 NRC 688,.697-98 n.14 (1982). For a discussion of the' procedure necessary to preserve evidentiary rulings for appeal, iga Section 3.11.4.
-5.8.14 Director's Decision on Show Cause Petition
- , The Appeal- Board normally lacks jurisdiction to entertain
- motions seeking review only of actions of the Director of Nuclear Reactor Regulation; the Commission itself is the forum
'for"such review. See 10 CFR s 2.206(c). Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-466, 7 NRC 457 (1978). J 5.8.15 ~ Findings of Fact There is no right to an administrative appeal on every factual finding. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 1B & 28), ALAB-467, 7 NRC 459, 461 n.5 A .(1978).
5.9 Perfectiqg Appeals Normally, Appeal Boards will not review or pass ~ upon specific rulings (e'.a., rulings with respect to contentions) in the absence of a properly perfected appeal by the injured party. Washinaton Public Power Supply System (Nuclear Projects No.1 & No. 4), ALAB-265,1 NRC 374 n.1 (1975); Louisiana Power & Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-242, 8 AEC 847, 848-849 (1974). An appeal is perfected by the filing of a notice of appeal with respect to the order or ruling as to which an appeal is sought. While the Commission does not require the same precision in the filings of laymen that is demanded of lawyers, any party wishing to challenge some particular Licensing Board action must at least identify the order in question, indicate that he is appealing from it, and give some reason why he thinks it's erroneous. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-469, 7 NRC 470, 471 (1978). 5.9.1 General Requirements for Appeals from Initial Decision The general requirements for an appeal from an initial decision are set out in 10 CFR s 2.762. Section s 2.762(a) provides that such appeal is to be filed within ten days after service of the initial decision. A brief in support of the appeal is to be q^ filed within 30 days (40 days in the case of the Staff). 10 CFR 9 2.762(a). SEPTEMBER 1988 APPEALS 39
I L 6 5.10 5.10 Briefs on Anneal 5.10.1 Necessity of Brief In any appeal, the filing of a brief in support of the appeal is mandatory. The appellant's failure to file such a brief will result in dismissal of the entire appeal, and this rule applies even if the appellant is acting pro se. Mississiooi Power & Liaht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-140, 6 AEC 575 (1973); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 485 n.2 (1986). Under prior practice where an appeal was taken by the filing of exceptions, all exceptions were to be briefed and exceptions not briefed normally were disregarded ; by the Appeal Board in its consideration of the appeal. Public Service Electric and Gas Co. (Salem Nuclear Generating l Stati n, Unit 1), ALAB-650, 14 NRC 43 (1981); Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, ! Units 1 & 2), ALAB-461, 7 NRC 313, 315 (1978); Florida Power
& Liaht Co. (St. Lucie Nuclear P? ant, Unit 2), ALAB-435, 6 NRC 541 (1977); Tennessee Vallev Authority (Hartsville Nuclear Plant, Units IA, 2A,1B & 28), ALAB-367, 5 NRC 92 (1977); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-359, 4 ,
NRC 619, 621 n.1 (1976); Florida Power & Licht Co. (St. Lucie j Nuclear Power Plant, Unit 2), ALAB-355, 3 NRC 830, 832 n.3 l (1976); Consumers Power Co,. (Midland Plant, Units 1 & 2), j ALAB-270, 1 NRC 473 (1975); Commonwealth Edison Co. (Zion l Station, Units 1 & 2), ALAB-226, 8 AEC 381, 382-383 (1974); l Northern Indiana P.ublic Service Co. (Bailly Generating l Station, Nuclear-1), ALAB-207, 7 AEC 957 (1974);' Louisiana l Power and Liaht Co, (Waterford Steam Electric Station, Unit ! 3), ALAB-732, 17 NRC 1076, 1083 n.2 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 824 n.4 (1984). , Interveners have a responsibility to structure their par-ticipation so that it is meaningful and alerts the agency to the interveners' position and contentions. Salem, supra,14 , NRC at 50, citina, Vermont Yankee Nuclear Power Coro. v. I Natural Resources Defense Council. Inc., 435 U.S. 519, 553 I (1978). Even parties who participate in NRC licensing l proceedings Dro se have an obligation to familiarize themsel-ves with proper briefing format and with the Commission's Rules of Practice. Salem, suora,14 NRC at 50, n.7. 5.10.2 Time for Submittal of Brief i 10 CFR s 2.762 provides that briefs supporting an appeal must be filed within 30 days (40 days for the Staff) after j filing the notice of appeal, i SEPTEMBER 1987 APPEALS 40 j
o y 9 5.10.2.1 h.(v) The time limits imposed in 10 CFR 9 2.762(a) for filing briefs refer to the date upon which the appeal was actually filed and not to when the appeal was originally due to be filed prior to a time extension. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 125 (1977). It is not necessary for a party to bring to the Appeal Board's attention the fact that its adversary has not met prescribed time limits. Nor as a general rule will any useful purpose be served by filing a motion seeking to have an appeal dismissed because the appellant's brief was a few days late; the mailing of a brief on a Sunday or Monday which was due for filing the prior Friday does not constitute substantial noncompliance within the meaning of 10 CFR & 2.762(e) [now g 2.762(f)], which would warrant dismissal, absent unique circumstances. Wolf Creek, suora. If unable to meet the deadline for filing a brief in support of its appeal of a Licensing Board's decision, a party is duty-bound to seek an extension of time sufficiently in advance of the deadline to enable an Appeal Board to act seasonably upon the application. Virainia Electric and Power i Comoany (North Anna Nuclear Power Station, Units 1 and 2), ' ALAB-568, 10 NRC 554, 555 (1979). O) ( v In the event of some late arising unforeseen development, a party may tender a document belatedly. As a rule, such a L filing must be accompanied by a motion for leave to file out- ['- of-time which satisfactorily explains not only the reasons for the lateness, but also why a motion for a time extension could not have been seasonably submitted, irrespective of the extent of the lateness. Wolf Creek, ALAB-424, sunra. Apparently, however, the written explanation for the tardiness may be waived by the Appeal Board if, at a later date, the Board and parties are provided with an explanation which the Board finds to be satisfactory. Id. at 126. 5.10.2,1 Time Extensions for Brief l Motions to extend the time for briefing are not favored. In l any event, such motions should be filed in such a manner as to l reach the Appeal Board at least one day before the period' l sought to be extended expires. Louisiana Power & Liaht Co. l (Waterford Steam Electric Station, Unit 3), ALAB-117, 6 AEC i' 261 (1973); Boston Edison Co. (Pilgrim Nuclear Station), ALAB-74, 5 AEC 308 (1972). An extension of briefing time which results in the rescheduling of an already calendared oral argument will not be granted absent extraordinary circumstan- , ces. Maine Yankee Atomic Power Co. (Maine Yankee Atomic l Power Station), ALAB-144, 6 AEC 628 (1973). {')) Q, SEPTEMBER 1987 APPEAL.S 41 1 w__ _ _- -
S 5.10.2.2 5.10.2.2 Supplementary Briefs A supplementary brief will not be accepted unless requested by the Appeal Board or accompanied by a motion for leave to file which sets forth reasons for the out-of-time filing. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-115, 6 AEC 257 (1973). Material tendered by a party without leave of the Appeal Board, after oral argument has been held and an appeal has been submitted for decision, constitutes improper supplemental argument. Consumers Power Co. (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 321-22 (1981). 5.10.3 Contents of Brief The general requirements for the form of the brief in support of an appeal are set forth in 10 CFR s 2.762. Any brief which in form or content is not in substantial compliance with these requirements may be stricken either on motion of a party or on the Commission's own motion. 10 CFR 9 2.762(g). For example, an appendix to a reply brief containing a lengthy legal argument will be stricken when the appendix is simply an attempt to exceed the page limitations set by the Appeal l Board. Toledo Edison Co. and Cleveland Electric Illuminating ! I Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3; Perry Nuclear Power Plant, Units 1 and 2), ALAB-430, 6 NRC ) 457 (1977). l An issue which is not addressed in an appellate brief is considered to be waived, even though the issue may have been raised before the Licensing Board. Philadelphia Electric CO2 (Limerick Generating Station, Units 1 and 2), ALAB-828, 23 NRC 13, 20 n.18 (1986). Although the Commission's Rules of Practice do not speci-fically require that a brief include a statement of the facts of the case, those facts relevant to the appeal should be set forth. An Appeal Board has indicated that it would dismiss an appeal if the failure to include a statement of facts were not corrected. Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-388, 5 NRC 640 (1977). The statement of facts set forth in the brief on appeal should include an exposition of that portion of the procedural history of the case related to the issue or issues presented by the appeal. Public Service Electric and Gas Company (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769, 771 n.2 (1977). The brief must contain sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the issue raised on appeal. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC SEPTEMBER 1987 APPEALS 42
l l 6 5.10.3 Q(~ 397 (1976); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Acency (Shearon Harris Nuclear Power i Plant), ALAB-843, 24 NRC 200, 204 (1986). A brief which does not contain such information is tantamount to an abandonment of the issue. E.; Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975); Houston Liahtina and Power
.C.h (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 381 n.88 (1985); Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 496 n.30 (1985); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 66 n.16 (1985); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Acency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 533-34 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municinal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 537 (1986); Carolina Power and Liaht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-856, 24 NRC 802, 805 (1986); Texas Utilities Electric Co_,_ (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 924 n.42 (1987). See also Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591, 1619 (1984). At a minimum, briefs must identify the particular error addressed and the irecise portions of the [ record relied upon in support of the assertion of error. s Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-739, 18 NRC 335, 338 n.4 (1983), citina, 10 CFR 9 2.762(a); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1255 (1982) and P_ublic Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49-50 (1981), aff'd sub nom., Township of Lower Alloways Creek v. Public Servica Electric and Gas Co., 687 F.2d 732 (3d Cir. 1982); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 533 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 537 (1986). This is particularly true where the Licensing Board rendered its rulings from the bench and did not issue a detailed written opinion. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 702-03 n.27 (1985). 10 CFR 9 2.762 requires that a brief clearly identify the errors of fact or law that are the subject of the appeal and specify the precise portion of the record relied on in support of the assertion of error. Public Service Electric and Gas Co. (Salem Nuclear Generating O Station, Unit 1), ALAB-650, 14 NRC 43 (1981); Duke Power Co.
\ (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 SEPTEMBER 1987 APPEALS 43
5 5.10.3 NRC 59, 66 n.15 (1985); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 793 (1985); Carolina Power and Liaht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-543 n.58 (1986); Carolina Power and I. aht Co. and North Carolina Eastern Municioal Power Acency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 204 (1986); Carolina Power and Licht Co. and North Carolina Eastern Municioal Power Aaency (Shearon Harris Nuclear Power
-Plant), ALAB-856, 24 NRC 802, 809 (1986); Pacific Gas and Electric Ch (Diablo Canyon Nuclear Power Plarit, Units 1 and 2), ALAB 880, 26 NRC 449, 464 (1987). Claims cf error that are withcut substance or are inadequately briefed will not be considered on appen . Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669,15 NRC 453, 481 (1982), citina, Salem, apn,14 NRC at 49-50. Sqg Philadel-ohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 273, 280 (1987); Georaia Power C92 (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127, 132 (1987). Bald allegations made on appeal of supposedly erroneous Licensing Board evidentiary rulings may be properly dismissed for inadequate briefing. Houston Lichtina and Power Co. (South Texas Project, Units-1 and 2),
ALAB-799, 21 NRC 360, 378 (1985). See 10 CFR S 2.762(d). An appeal may be dismissed when inadequate briefs make its arguments impossible to resolve. Pennsylvania Power and Liaht Co. and Alleaheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 956 (1082), citina, Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 787 (1979); ' Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 413 (1976). Egg Carolina Power and Liaht Co. and North Carolina Eastern Municipal Pow r Aaency (Shearon Harris Nuclear Pcwor Plant), ALAB-843, 24 NRC 200, 204 (1986). A brief that merely indicates reliance on previously filed proposed findings, without meaningful argument addressing the Licensing Board's disposition of issues, is of little value in appellate review. Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 348 n.7 (1983),
,qi. tina, P_ublic Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 50 (1981),
aff'd sub nom, Township of Lower A110 ways Creek v. Public Service Electric and Gas Co., 687 F.2d 732 (3d Cir. 1982); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-833, 22 NRC 59, 71 (1985); Carolina Power and Licht Co. and North Carolina Eastern Municipal Power Aagn_q_y (Shearon Harris Nuclear Power Plant), ALAS-837, 23 NRC 525, 533 (1986); Cleveland Electric 111uminatina Cot (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841, 24 NRC 64, 69 (1986); Carolina Power and licht Co. and North MARCH 1988 APPEALS 44
p # 5.10.3 ( ) Carolina Eastern Municipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 547 n.74 (1986).
.S31 Georaia Power'Co. (Alvin W. Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 NRC 127,131 (1987).
Lay representatives generally are not held to the same standard for appellate briefs that is expected of lawyers. Pennsylvania Power and Liaht Co. (Susquehanna Steam Electric
. Station, Units 1 and 2), ALAB-693, 16 NRC 952, 956 (1982),
citina, Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 50 n.7 (1981). Nonetheless, NRC litigants appearing Dro se or through lay representatives are in no way relieved by that status of any obligation to familiarize themselves with the Commission's rules. To the contrary, all individuals and organizations electing to become parties to NRC licensing proceedings can fairly be expected both to obtain access to a ; copy of the rules and refer to it as the occasion arises. Susauehanna, suota,16 NRC at 956, citina, Pennsylvania Power and Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-563, 10 NRC 449, 450 n.1 (1979). All parties appear-ing in NRC proceedings, whether represented by counsel or a lay representative, have an affirmative obligation to avoid any false coloring of the facts. Carolina Power and Licht Co.
, and North Carolina Eastern Municipal Power Aaency (Shearon lG ,/ \ Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 531 n.6 (1986).
l A party's brief must (1) specify the precise portion of the record relied upon in support of the assertion of error, and + (2) relate to matters raised in the party's proposed findings of fact and conclusions of law. An Appeal Board will not ordinarily entertain arguments raised for the first time on i appeal, absent a serious, substantive issue. Pennsylvania Power and Liaht Co. (Su:;quehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 NRC 952, 955-56, 956 n.6 (1982), ! citina, Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-650, 14 NRC 43, 49 (1981); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, IB, and 2B), ALAB-463, 7 NRC 341, 348 (1978); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 MRC 897, 906-907 (1982). All factual assertions in the brief must be supported by ! references to specific portions of the record. Consoli-dated Edison Co. of N1 (Indian Point Station, Unit 2), ALAB-159, 6 AEC 1001 (1973); Carolina Power and Liaht Co. I and North Carolina Eastern Hunicipal Power Aaency (Shearon Harris Nuclear Power Plant), ALAB-843, 24 NRC 200, 211 (1986). All references to the record should appear in the appellate brief itself; it is inappropriate to incorporate
.f]( j into the brief by reference a document purporting to furnish V the requisite citations. Kansas Gas & Electric Cemoany SEPTEMBER 1988 APPEALS 45
Yh 9 5.10.3 (Wolf Creek Generating Plant, Unit 1), ALAB-424, 6 NRC 122, 127 (1977). Incorporation by reference in the brief of exceptions without any supporting record references or other authority violates both the letter and spirit of 10 CFR 6 2.762. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, IB & 28), ALAB-367, 5 NRC 92 (1977); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912, 924 n.42 (1987). A letter incorporating by reference a brief and proposed findings and 1 conclusions filed with the Licensing Board does not satisfy ! the requirements for a brief on exceptions. Public Service Electric and Gas Comoany (Hope Creek Generating Station, Units 1 and 2), ALAB-394, 5 NRC 769 (1977). 1 Documents appended to an appellate brief will be stricken where they constitute an unauthorized attempt to supplement the record. However, if the documents were newly discovered evidence and tended to show that significant testimony in the record was false, the Appeal Board might be sympathetic to a motion to reopen the hearing. Toledo Edison Co. and Cleveland . Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Units 1, 2 & 3); (Perry Nuclear Power Plant, Units 1 & 2), ALAB-430, 6 NRC 451 (1977); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 720 n.51 (1985), citina, Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-648,14 ; NRC 34, 36 (1981). ' Personal attacks on opposing counsel are not to be made in appellate briefs, Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835, 837-838 , (1974), and briefs which carry out personal attacks in an 1 abrasive manner upon Licensing Board members will be stricken. I Louisiana Power & Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-121, 6 AEC 319 (1973). 10 CFR 9 2.762 has been amended to set a 70-page limit on l appellate briefs. 10 CFR s 2.762(e). Established page limitations may not be exceeded without leave and may not be circumvented by use of " appendices" to the brief, Toledo Edison Co. and Cleveland Elec+ric Illuminating C A (Davis-Besse Nuclear Power Station, Units 1, 2 & 3), ALAB-430, 6 NRC 457 (1977), although Section 2.762(e) does permit a request for enlargement of the page limitation on a showing of good cause filed at least seven days before the date on which the brief is due. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-827, 23 NRC 9, 11 n.3 (1986). Briefs longer than 10 pages must contain a table of contents with page references and a table of authorities with page references to citations of authority. 10 CFR 2.762(d). The appellant's brief must contain a statement of the case with applicable procedural history, Public Service Electric & Gas Co. (Hope Creek Generating Station, Units 1 & 2), ALAB-394, 5 SEPTEMBER 1988 APPEALS 46
c 9 5.11
~
1 NRC 769 (1977); Public Service Co. of Oklahoma (Black Fox Station, Units 1 & 2), ALAB-388, 5 NRC 640 (1977). A permitted reply to an answer should only reply to opposing briefs ard not raise new matters. Houston Liahtina & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 243 n.4 (1980). 5.10.3.1 Opposing Briefs Briefs in opposition to the appeal should concentrate on the appellant's brief, not on the exceptions which had been filed. Ee.g Illinois Power Co. (Clinton Power Station, Units 1 & 2), ALAB-340, 4 NRC 27, 52 n.39 (1976). Reply briefs are due within 30 days of filing and service of the appellant's brief, or, in the case of the Staff, within 40 days. 10 CFR & 2.762(c). If service of appellant's brief is made by mail, add 5 days to these time periods. 10 CFR 9 2.710. 5.10.4 Amicus Curiag Briefs 10 CFR 9 2.715 has been amended to allow a nonparty to file a rw i brief amicus curiae with regard to matters before the Appeal i Board or the Commission. The nonparty must submit a motion V seeking leave to file the brief, and acceptance of the brief is a matter of discretion with the Appeal Board or Commission. 10 CFR 9 2.715(d). The opportunity of a nonparty to participate as amicus curiae has been extended to Licensing Board proceedings. A U.S. Senator lacked authorization under his State's laws to represent his State in NRC proceedings. However, in the belief that the Senator could contribute to the resolution of issues before the Licensing Board, the Appeal Board authorized the Senator to file amicus curiae briefs or to present oral arguments on any legal or factual issue raised by the parties to the proceeding or the evidentiary record. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-862, 25 NRC 144, 150 (1987). 5.11 Oral Aroument If not requested by a party, oral arguments are scheduled by an Appeal Board when one or more members of the Board have questions of the parties. See 10 CFR 9 2.763; Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC 277, 279 (1982). All parties are expected to be present or represented at oral argument unless specifically excused by the Board. Such attendance is one of the responsibilities of all parties when they participate in Commission adjudicatory proceedings. Point Beagjl,15 73) (
' NRC at 279.
SEPTEMBER 1988 APPEALS 47
I- 1 i 6 5.11.1 5.11.1 Failure to Appear for Oral Argument i 1 If for sufficient reason a party cannot attend an oral l argument, it should request that the appeal be submitted on i briefs. Any such. request, however, must be adequately supported. A bare declaration of inadequate financial resources is clearly deficient. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666,15 NRC s 277, 279 (1982). ) l Failure to advise the Appeal Board of an intent not to appear ' at oral argument already calendared is discourteous and unprofessional and may result in dismissal of the appeal. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units IA, 2A, IB & 28), ALAB-337, 4 NRC 7 (1976). 5.11.2 Grounds for Postponement of Oral Argument Postponement of an already calendared oral argument for . conflict reasons will be granted only upon a motion setting l out: j (1) the date the conflict developed; (2) the efforts made to resolve it; (3) the availability of alternate counsel; (4) public and private interest considerations; (5) the positions of the other parties; (6) the proposed alternate date. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-165, 6 AEC 1145 (1973). A party's inadequate resources to attend oral argument, properly substantiated, may justify dispensing with oral l argument. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 NRC 277, 279 (1982). 5.11.3 Oral Argument by Nonparties Under 10 CFR s 2.715(d), a person who is not a party to a proceeding may Fe permitted to present oral argument to the Appeal Board er the Commission. A motion to participate in the oral arguent must be filed and non-party participation is at the discretion of the Appeal Board or the Commission. O DECEMBER 1987 APPEALS 48 _ . _ _ _ _ _ I
l
, 9 5.12.1-r y u) 5.12 Actions Similar to Anoeals 5.12.1 Motions to Reconsider Licensing Boards have the inherent power to entertain and grant a motion to reconsider an initial decision. .C_pil-solidated Edison Co. of N.Y. (Indian Point Station, Unit 3),
ALAB-281, 2 NRC 6 (1975). Similarly, Appeal Boards will entertain a petition for reconsideration. When such a petition is filed, no other party need respond absent a request by the Appeal Board to do so. Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-166, 6 AEC 1148, 1150 n.7 (1973). The practice followed by the Appeal Board, that it is unnecessary for a party to respond to a motion for reconsideration unless specifically requested to do so by the Board, is also applicable to requests for clarification of a prior decision. Houston Liahtina and Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-544, 9 NRC 630, 631 (1979). The Appeal Board has indicated that a motion to it tc re-consider a prior decision will be denied where the Appeal Board is left with the conviction that what confronts it is not in reality an elaboration upcn, or refinement of, arguments previously advanced, but instead, is an entirely new (nv) thesis. Tennessee Vallev Authority (Hartsville Nuclear Plant, Units IA, 2A, 1B & 28), ALAB-418, 6 NRC 1, 2 (1977). Modons to reconsider an order must be grounded upon a concrete showing, through appropriate affidavits rather than counsel's rhetoric, of potential harm to the inspection and investigation functions relevant to a case. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-735, 18 NRC 19, 25-26 (1983). Motions for reconsideration are for the purpose of pointing out an error the Board has made. Unless the Board has relied on an unexpected ground, new factual evidence and new arguments are not relevant in such a motion. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-10, 19 NRC 509, 517-18 (1984). The Commission's refusal to hear a discretionary appeal does not cut off the Appeal Board's right to reconsider a question , in an appeal which is still pending before the Appeal Board. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978). Where a party petitioning the Court of Appeals for review p) ( of a decision of the agency also petitions the agency to reconsider its decision, and the Federal court stays its review pending the agency's disposition of the motion to DECEMBER 1987 APPEALS 49 i
s 5.12.2 reconsider; the Hobbs Act does not preclude the agency's 4 reconsideration of the case. Public Service Co. of Indiana (Marble Hill kuclear Generating Station, Units 1 & 2), ALAB- ; 493, 8 NRC 253, 259 (1978). An Appeal Board may not reconsider a matter after it has lost j jurisdiction. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579,11 NRC 223, 225-226 (1980). 5.12.2 Interlocutory Reviews I With the exception of an appeal by a petitioner from a total denial of its petition to intervene or an appeal by another party on the question whether the petition should have been wholly denied (10 CFR 9 2.714a), there is no right to appeal any interlocutory ruling by a Licensing Board to an Appeal , Board. 10 CFR 9 2.730(f); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-21,17 NRC 593, 597 (1983); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-876, 26 NRC 277, 280 (1987). Thus, for example, a Licensing Board's rulings limiting contentions or discovery or requiring consolidation are not immediately appealable, though such rulings may be reviewed , later by deferring appeals on them until the end of the case. Public Service Co. of Indiana (Marble Hill Nuclear Generating i Station, Units 1 & 2), ALAB-339, 4 NRC 20 (1976). In the same t vein 1!Lq Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367 (1981). See also Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-768, 19 NRC 988, 992 (1984). Similarly, interlocutory appeals from Licensing Board rulings made during the course of a proceed- , ing, such as the denial of a motion to dismiss the proceeding, ' are forbidden. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3), ALAB-433, 6 NRC 469 (1977). The fact that legal error may have occurred does not of itself justify interlocutory appellate review in the teeth of the longstanding articulated Commission policy generally disfavor-ing such review. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 15 (1983). See 10 CFR 6 2.730(f). The prohibition against interlocutory appeals set forth in 10 CFR s 2.730(f) is a rule of general applicability. It applies to an interlocutory ruling of the Administrative Law Judge with respect to civil penalties just as it applies to rulings in licensing proceedings. Pittsburah-Des Moines Steel Co., ALAB-441, 6 NRC 725 (1977). It applies as well to an intervenor's " appeal" of a Li-l censing Board order rescinding any earlier orders or MARCH 1988 APPEALS 50 l L_ - -_ __ _
c 6 5.12.2 s
'" / issuances granting procedural assistance to interveners, following the suspension of the operation of 10 CFR 9 2.750(c) upon which the assistance program was based. Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-625, 13 NRC 13 (1981).
It is not the Appeal Board's role to monitor the numerous interlocutory rulings made by Licensing Boards. Thus, interlocutory appeals of such rulings rarely will be enter-tained. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410 (1978). Although interlocutory appeals are generally not permitted as a matter of right under the Rules of Practice,10 CFR S 2.730(f), the Appeal Board may, as a matter of discretion, elect to entertain matters normally subject to appellate review at the end of a case when (and if) an appeal is taken from the Licensing Board's final decision, 10 CFR 9 2.718(i) and 9 2.785(b)(1). Discretionary review is granted only sparingly and only when a Licensing Board's action either (a) threatens the party adversely affected with immediate and serious irreparable harm that could not be remedied by a later appeal or (b) affects the basic structure of the proceeding in a pervasive or unusual manner. South Carolina Electric and n Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140 (1981); Houston Liahtina and Power Co. (Allens V) Creek Nuclear Generating Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); Pennsylvania Power & Licht Comoany and 1 Alleaheny Electric Cooperative. Inc. (Susquehanna Steam Electric Station, Units 1 & 2), ALAB-593, 11 NRC 761 (1980); United States Department of Enerav. Pro.iect Manaaement Corp., Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-688, 16 NRC 471, 474, 475 (1982), citina, Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-737, 18 NRC 168, 171 (1983); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 20-21 (1987). Egg L7no Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 134 (1987). Interlocutory appellate review of Licensing Board orders is disfavored and will be undertaken as a discretionary matter only in the most compelling circumstances. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 383 n.7 (1983), citina, Public Service Co. of New Hamoshire (Seabrook Station, Units 1 ard 2), ALAB-271, 1 NRC 478, 483-86 (1975). Although generally precluding interlocutory appeals,10 CFR 9 2.730(f), does allow a Licensing Board to refer a (S ) ruling to an Appeal Board. The Appeal Board need not, however, accept the referral. In deciding whether to do (V MARCH 1988 APPEALS 51
S 5.12.2 so, the Appeal Board applies essentially the same test as it utilizes in acting upon directed certification requests filed under 10 CFR 9 2.718(i). Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC ! 371, 375 n.6 (1983); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470, 475 (1985). The Commission's 1981 Statement of Policy on Conduct of l Licensina Proceedings, CLI-81-8, 13 NRC 452, 456, does not call for a marked relaxation of the standard that the discretionary review of interlocutory Licensing Board rulings authorized by 10 CFR 99 2.730(f) and 2.718(i) should be undertaken only in the most compelling circumstances. Rather, it. simply exhorts the Licensing Boards to put before the Appeal Board legal or policy questions that, in their judgment, are "significant" and require prompt appellate resolution. XJirainia Electric and Power Co. (North Anna Power i Station, Units 1 and 2), ALAB-741, 18 NRC 371, 375 (1983); 1 Metropolitan Edison Co. (Three Mile Island Nuclear Station, ) Unit 1), ALAB-791, 20 NRC 1579, 1583 (1984). The language i regarding directed certification in 9 V(f)(4) of Appendix A to j the Rules of Practice, like the Commission's Policy Statement, ; does not relax the standards for directed certification. & ' at 1583-84. The fact that an evidentiary ruling involves a l matter that may be novel or important does not alter the j strict standards.for directed certification, & at 1583. The fact that the error of a Licensing Board may lead to delay and increased expense is not a controlling consideration in favor of interlocutory review, Virainia Electric Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371, 378 n.11 (1983), citina, Cleveland Electric 111uminatina Co,_ o (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1113-14 (1982). The mere commitment of resources to a hearing that may later turn out to have been unnecessary does not justify inter-locutory review of a Licensing Board scheduling order. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 21-22 (1987). In the absence of a potential for truly exceptional delay or expense, the risk that a Licensing Board's interlocutory ruling may eventually be found to have been erroneous, and that because of the error further proceedings may have to be held, is one which must be assumed by that board and the parties to the proceeding. Duke Power Co. (Catawba Nuclear l Station, Units 1 and 2), ALAB-768, 19 NRC 988, 992 (1984), ! citina, Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-116, 6 AEC 258, 259 (1973); Cleveland Electric 111uminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-805, 21 NRC 596, 600 (1985). MARCH 1988 APPEALS 52
i
~
9 5.12.2.1 V A Licensing Board's decision to admit a contention which will require the Staff to perform further statutory required review does not result in unusual delay or expense which justifies referral of the Board's decision for interlocutory review. Kerr-McGee Chemical Corp. (West Chicago Rare Earths Facility), LBP-85-3, 21 NRC 244, 257-258 n.19 (1985), citina, Duke Power [o2 (Catawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460, 464 (1982), rev'd in oart on other arounds, CLI-83-19, 17 NRC 1041 (1983). 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. Rulings which do neither are interlocutory. Interlocutory determina-tions may not be brought before the Appeal Board as a matter of right til the Board below has rendered a reviewable decision. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-731, 17 NRC 1073, 1074-75 (1983); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-787, 20 NRC 1097, 1100 (1984). 5.12.2.1 Directed Certification of Questions for Interlocutory Review (N The Commission's rules do not allow the Appeal Board to (') entertain interlocutory appeals,10 CFR 9 2.730(f). extraordinary circumstances, however, the Appeal Board can In review interlocutory rulings by a petition for directed certification pursuant to 10 CFR 9 2.718(i). Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-541, 9 NRC 436, 437 (1979); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-62, 16 NRC 565, 567 (1982), citina, Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603, 606 (1977). See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-858, 25 NRC 17, 20 and n.7 (1987); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-860, 25 NRC 63, 67-68 (1987); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 134 (1987). An Appeal Board's decision on a request for directed certifi-cation is usually based on its evaluation of the party's peti-tion. However, in unusual circumstances, the Board may also schedule oral argument. Shoreham, suora, 25 NRC at 136-37 and n.28. Although the Rules of Practice do not specify any time limit for the filing of a petition for directed certifi-cation, a party should file the petition promptly after
,, the interlocutory ruling has been issued. The promptness
( of a filing is determined by the circumstances of each (-}- particular case. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-870, SEPTEMBER 1988 APPEALS 53
l l 5 5.12.2.1 ! 26 NRC 71, 76 (1987). S_qq Public Service Co. of New Hamoshire (Seabrook. Station, Units 1 and 2), ALAB-884, 27 NRC 56, 57-58 (1988). _ 1 Despite the general prohibition against interlocutory review, the regulations provide that a party may ask a Licensing Board to certify a question to the Appeal Board without ruling on J it. 10 CFR S 2.718(i). ~ The regulations also allow a party to 1 request that a Licensing Board refer a ruling on a motion to l the Appeal Board under 10 CFR 5 2.730(f). The Appeal Board has construed Section 2.718 as giving any party the right to seek interlocutory review by filing a petition for " directed certification" to the Appeal Board. Public Service Co. of New Homoshire (Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 478, 482-483 (1973). , A party seeking certification under Section 2.718(i) must, at a minimum, establish that a referral under 10 CFR 6 2.730(f) would have been proper -- i.e., that a failure to resolve the problem will cause the public interest to suffer or will result in unusual delay and expense. Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976); Toledo Edison Co. (Davis Besse Nuclear Power Station), ALAB-300, 2 NRC 752, 759 (1975); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), ALAB-271, 1 NRC 478, 483 (1975); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 NRC 1649, 1652-53 (1982). However, the added delay and expense occasioned by the admission of a contention -- even if erroneous -- does not alone distinguish the case so as to . warrant interlocutory review. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675,15 NRC 1105, 1114 (1982). The fact that applicants will be unable to recoup the time and financial expense needed to litigate late-filed contentions is a factor that is present when any contention is admitted and thus does not provide the type of unusual delay that warrants interlocutory Appeal Board review. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-706,16 NRC 1754,1758 n.7 (1982), citina, Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675,15 NRC 1105, 1114 (1982). Discretionary interlocutory review will be granted by the Appeal Board only when 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. Houston Liahtina and Power Co. (Allens Creek Nuclear Generat-ing Station, Unit 1), ALAB-635, 13 NRC 309, 310 (1981); Public Service Electric and Gas Co. (Salem Nuclear Generating Sta-tion, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); Public SEPTEMBER 1988 APPEALS 54
9 5.12.2.1
! 1
'j Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977);
P_e rry , supra,15 NRC at 1110; Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP ' 82-62, 16 NRC 565, 568 (1982), citina, Marble Hill, supra, 5 NRC at 1192; Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-706,16 NRC 1754, 1756 (1982); Public Setvice Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-762, 19 NRC 565, 568 (1984); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1582 (1984); Cleveland Electric Illuminating A (Perry Nuclear Power Plant, Units 1 and 2), ALAB-805, 21 NRC 596, 599 n.12 (1985); Public Service Co. of New Hamoshire (Secbrook Station, Units 1 and 2), ALAB-838, 23 NRC 585, 592 (1986); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-839, 24 NRC 45, 49-50 (1986); Lqna Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 134 (1987); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-864, 25 NRC 417, 420 (1987); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-870, 26 NRC 71, 73 (1987); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-888, 27 NRC 257, 261 (1988); Public Service Co. of New Hamoshire (Seabrook rm Station, Units 1 and 2), ALAB-889, 27 NRC 265, 269 (1988). A ruling that does no more than admit a contention has a low (U') potential for meeting that standard. Perry, suora, 16 NRC at 1756, citina, Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464 (1982); commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470, 474 (1985), rev'd, CLI-86-e, 23 NRC 241 (1986). See also dissent of Commissioner Asseistine in Braidwood, suora, 23 NRC at 253-55. Whether review should be undertaken on " certification" or by referral before the end of the case turns on whether failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or affect the basic struc-ture of the proceeding in some pervasive or unusual manner. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464 (1982), citina, Consumers Power A (Midland Plant, Units 1 and 2), ALAB-634,13 NRC 96 (1981). The fact that an interlocutory Licensing Board ruling may be wrong does not per se justify directed certification. Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371, 374 (1983), citing, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 14 n.4 (1983). Some cases have delineated, to a certain extent, the re-
/^)N
( quirements for directed certification as to specific issues and under particular circumstances. In this vein: SEPTEMBER 1988 APPEALS 55
I 5 5.12.2.1 (1) Directed certification will not be granted unless the Licensing Board below had a reasonable opportunity to consider the question as to which certification is sought. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-297, 2 NRC 727, 729 (1975). See also Pro.iect Manaaement Coro. (Clinch River Breeder Reactor Plant), ALAB-330, 3 NRC 613, 618-619, rev'd in oart sub Dm, USERDA (Clinch River Breeder Reactor Plant), CLI- , 76-13, 4 NRC 67 (1976). i (2) While it may not always be dispositive, one factor favoring directed certification is that the question or 1 order for which certification is sought is one which '
"must be reviewed now or not at all ." Kansas Gas &
Electric Co. (Wolf Creek Nuclear Generating Station, Unit I 1), ALAB-327, 3 NRC 408, 413 (1976), cited in Houston J Liahtina and Power Co. (South Texas Project, Units 1 and 2), ALAB-639, 13 NRC 469, 473 (1981). (3) A mere conflict between Licensing Boards on a particular question does not mean that directed certification as to that question will automatically be granted. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-371, 5 NRC 409 (1977); Public Service Co. of New Hamoshire (Seabrook Station, Units 1
& 2), ALAB-271, 1 NRC 478, 484-485 (1975). Unless it is l shown that the error fundamentally alters the very shape '
of the ongoing adjudication, appellate review must await the issuance of a " final" Licensing Board decision. Perry, supra, ALAB-675, 15 NRC at 1112-1113. See Lgng Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-888, 27 NRC 257, 263 (1988). - (4) An Appeal Board has granted directed certification of a Licensing Board's denial of an intervenor's motion to correct the official transcript of a prehearing con-ference. The Appeal Board found that interlocutory review was warranted because of doubts that the tran-script could be corrected at the end of the hearing. Without a complete and accurate transcript, the inter-venor would suffer serious and irreparable injury because its ability to challenge the Licensing Board's rulings through an appeal would be compromised. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-839, 24 NRC 45, 50, 51 (1986). (5) The Appeal Board does not favor certification on the question as to whether a contention should have been admitted into the proceeding. Pro.iect Manaaement Corp. (Clinch River Breeder Reactor Plant), ALAB-326, 3 NRC 406, reconsid. den., ALAB-330, 3 NRC 613, rev'd in part sub nom 2, USERDA (Clinch River Breeder Reactor JUNE 1988 APPEALS 56
,S 9 5.12.2.1 V Plant), CLI-76-13, 4 NRC 67 (1976); Public Service Co.
of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-838, 23 NRC 585, 592 (1986); Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 135 (1987). A Board's rejection of an inter-ested State's sole contention is not appropriate for l directed certification when the issues presented by the State are also raised by the contentions of interveners in the proceeding. Seabrook, supra, 23 NRC at 592-593. 4 The admission by a Licensing Board of more late-filed ' than timely contentions does not, in and of itself, affect the basic structure of a licensing proceeding in a pervasive or unusual manner warranting interlocutory Appeal Board review. If the late-filed contentions have been admitted by the Board in accordance with 10 CFR 9 2.714, it cannot be said that the Board's rulings have affected the case in a pervasive or unusual manner. Rather, the Board will have acted in furtherance of the Commission's own rules. Cleveland Electric Illuminating A (Perry Nuclear Power Plant, Units 1 and 2), ALAB-706, 16 NRC 1754, 1757 (1982). The basic structure of an ! ongoing proceeding is not changed by the simple admission of a contention which is based on a Licensing Board ruling that: (1) is important or novel; or (2) may r'] conflict with case law, policy, or Commission regula-t,'j tions. Thus, the Appeal Board denied directed certifica-l tion of a Licensing Board ruling which admitted the intervenor's revised quality assurance contention. The i applicant argued that the Licensing Board erred in giving the intervenor the opportunity to conduct discovery in order to revise and resubmit the quality assurance contention which had been rejected earlier for lack of t specificity. Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470, 474 and nn. 16-17 (1985), citina, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1583 (1984) and Cleveland Electric Illumi-natina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1112-13 (1982). (6) Certification will not be directed to review rulings on objections to interrogatories. Lona Island Liaht-ina Co. (Jamesport Nuclear Power Station, Units 1 & 2), ALAB-318, 3 NRC 186 (1976). Nor will certifica-tion be directed to review orders rejecting objections to discovery on grounds of privilege. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634,13 NRC 96 (1981); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-300, 2 NRC 752, 769 i (1975). In this vein, the Appeal Board has refused l O to review a discovery ruling referred to it by a ('/ Licensing Board where the Board below did not explain why it believed Appeal Board involvement was necessary, JUNE 1988 APPEALS 57
9 5.12.2.1 . where the losing party had not indicated that it was unduly burdened by the ruling, and where the ruling was not novel. Consumers Power Co. (Midland P! ant, Units 1 l and 2), ALAB-438, 6 NRC 638 (1977). The aggrieved party l must make a strong showing that the impact of the i discovery order upon that party or upon the public interest is indeed " unusual." Midland, suora. Discovery rulings rarely meet the test for discretionary inter-locutory review. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1),- ALAB-780, 20 NRC 378, 381 (1984). Sgg Texas Utilities Electric Co_,_ (Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-870, 26 NRC 4 71, 74 (1987). ] (7) As to rulings on evidence, certification will not be i granted, absent exceptional circumstances, on questions ! of what evidence or how evidence will be admitted. ! Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC 98 (1976); Power Authority of the State of New York (Green County Nuclear Power Plant), ALAB-439, 6 NRC 640 (1977); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410 (1978); Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-630, 13 NRC 84 (1981). In fact, the Appeal Board is generally disinclined to direct certification on 1 rulings involving " garden-variety" evidentiary matters. Egg Lona Island Liahtina Co. (Jamesport Nuclear Power ! Station, Units 1 & 2), ALAB-353. " NRC 381 (1976). In { Public Service Co. of Indiana (N. ble Hill Nuclear ) Generating Station, Units 1 & 2), ALAB-393, 5 NRC 767, l 768 (1977), the Appeal Board reiterated that certifica- l tion will not be granted to allow consideration of l interlocutory evidentiary rulings, stating that, "it is ! simply not our role to monitor these matters on a day-to- I day basis; were we to do so, 'we would have little time for anything else.'" (citations omitted). An Appeal Board will be particularly reluctant to grant a request , for directed certification where the question for which I certification has been sought involves the scheduling of hearings or the timing and admissibility of evidence. United States Deoartment of Enerav. Pro.iect Manaaement Coro.. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-688, 16 NRC 471, 475 (1982), gitip_g, Toledo Edison Co. and Cleveland Electric Illuminating Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-314, 3 NRC 98, 99-100 (1976). Adverse evidentiary rulings may turn out to have little, if any evidentiary j effect on a Licensing Board's ultimate substantive decision. Therefore, determinations regarding what evidence should be admitted rarely, if ever, have a l pervasive or unusual effect on the structure of a . JUNE 1988 APPEALS 58 j
$5 2.2.1 ,,
}O ]M . proceeding sof as to warrant interlocutory intercession by an Appeal Board. . Metropolitan Edison Co. = (Three Mile
~
a
~ Island. Nuclear Station, Unit 1),- ALAB-791, 20 NRC 1579, 1583-(1984);-
F. (8) The Appeal Board has denied certification under 10 CFR'
'f;2.718(1) and: rejected the Staff's position.that a-Licensing Board's ruling; denying summary disposition of.a lL part of~a contention unwarrantedly-expanded the scope of?
the issues and that the resulting. necessity of. trying these issues would cause unnecessary expense and delay. The Appeal Board found that the "immediate and ir-reparable. harm". and "pervasiveLeffect on the. basic structure of. the proceeding" alleged by the Staff .in-such a' case was no different than that. involved any time a litigant must go to hearing. Pennsv1vania Power and Liaht Co. and A11eahenv Electric Cooperative. Inc. (Susquehanna Steam Electric Station,. Units 1 and 2), ALAB-641,--13 NRC 550-(1981). The mere expansion:of issues rarely, if ever, 'affects the basic structure of a proceeding in a pervasive.or. unusual way so as to warrant interlocutory review by an Appeal Board. Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-888, 27 NRC 257, 262-63 (1988). The Appeal Board's directed certification authority will be exercised "most sparingly." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 697, 698 (1978); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units.1 and 2), ALAB-504, 8 NRC 406, 410 (1978). While a lack of participation below may not ' absolutely foreclose grant of a request for directed certification in all circumstances, it does increase the movant's already heavy burden of demonstrating that the Board's intercession is necessary. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 175-76 (1983). An argument that future litigation may be required does not satisfy the test for directed certification. Public Servict Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-737, 18 NRC 168, 176 n.12 (1983). Opposition to a directed certification petition should include some discussion of petitioner's claim of Licensing Board error. Virainia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371, 374 n.3 (1983), citina, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11, 14 n.4 (1983). U JUNE 1988 APPEALS 59 i
l i 9 9 5.12.2.1.1 Failure of a party to address the standards for directed l certification in responding to a motion seeking such review l may be construed as a waiver of any argument regarding the i propriety of directed certification. Metropolitan Edison Co. l (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC i 1579, 1582 n.7 (1984). Cf. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC i 11, 14 n.4 (1983). 5.12.2.1.1 Effect of Subsequent Developments on Motion to Certify Developments occurring subsequent to the filing of a motion for directed certification to the Appeal Board may strip the question brought of an essential ingredient and, therefore, constitute grounds for denial of the motion. . Northern States 1 Power Co. (Prairie Island Nuclear Generating Plant, Units 1 ! and 2), ALAB-419, 6 NRC 3, 6 (1977). I When reviewing a motion for directed certification, an Appeal Board will not consider events which occurred subsequent to ; the issuance of the challenged Licensing Board ruling. A ) party which seeks to rely upon such events must first seek j appropriate relief from the Licensing Board. Public Service j Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB- 1 889, 27 NRC 265, 271 (1988). 5.12.2.1.2 Effect of Directed Certification on Uncertified Issues i The pendency of review by the Appeal Board pursuant to certification does not automatically result in a stay of hearings on independent questions not intimately connected l with the issue certified. Egg Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417 (1977). 5.12.3 Application to Commission for a Stay After Appeal Board's Denial of Stay Where a party's request for a stay is denied by the Appeal Board, the party may apply to the Commission for a stay under 10 CFR 9 2.788(a), (h). This, rather than a petition for review under 10 CFR 2.786(b), is the appropriate route, j Metropolitan Edison Co. (Three Mile Island Nuclear Station, i Unit 2), CLI-78-3, 7 NRC 307, 308 (1978); Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-1, - 7 NRC 1, 30 n.44 (1978). Thus, while such a request to the Commission may have the appearance of an appeal, it is not treated as such. l The application for a stay and an appeal from the Appeal Board's decision denying a stay will be denied when inter-venors & not make a strong showing that they are likely to prevail on the merits or that they will be irreparably SEPTEMBER 1988 APPEALS 60
p 9 5.13.1.2
< g x~) harmed pending appeal of the Licensing Board's decision.
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-82-11, 15 NRC 1383, 1384 (1982). 5.13 Appeals from Orders. Rulinas. Initial Decisions. Partial Initial Decisions ' Prior to recent changes in the regulations, the vehicle for an appeal of any order, ruling or decision was the filing of exceptions. An appeal is now taken by the filing of a notice of appeal pursuant to 10 CFR s 2.762. 4 An appeal should be filed only where a party is aggrieved by, or dissatisfied with, the action taken below and invokes appellate jurisdiction to change the result. An appeal is unnecessary and inappropriate when a party seeks to appeal a decision whose ultimate result is in that party's favor. Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-459, 7 NRC 179, 202 (1978); South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-694, 16 NRC 958, 959-60 (1982), citina, Public Service Co. of Indiana. Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 202 (1978); Duke Power Co. (Cherokee Nuclear Station, Units 1, 2 and 3), ALAB-478, 7 NRC 772, 773 (1978); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-282, 2 NRC 9, 10 n.1 (1975); Northern States Power Co. I'.m (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 8 V) AEC 1175, 1177, affirmed, CLI-75-1,1 NRC 1 (1975); Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-157, 6 AEC 858, 859 (1973). 5.13.1 Time for Filing Appeals 5.13.1.1 Appeals from Initial and Partial Initial Decisions Parties aggrieved by an initial decision or a partial decision must file and brief their appeals within the time limits set out in 10 CFR s 2.762. Florida Power & Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-274,1 NRC 497, 498 (1975). Failure to file an appeal in a timely manncr amounts to a waiver of the appeal. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 392-93 (1974). The same rule applies to partial initial decisions and a party must file its appeal therefrom without waiting for the Licensing Board's disposition of the remainder of the proceeding. Mississioni ; Power & Licht Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-195, 7 AEC 455, 456 n.2 (1974). 5.13.1.2 Variation in Time Limits on Appeals Only an Appeal Board may vary the time for taking appeals from that set out in 10 CFR s 2.762; Licensing Boards n have no power to do so. Consolidated Edison Co. of N.Y. (Indian Point Station, Unit 3), ALAB-281, 2 NRC 6 (1975). SEPTEMBER 1988 APPEALS 61
6 5.13.2 Of course, reere agreement of the parties to extend the time for the filing of an appeal is not sufficient to show good ' cause for such a time extension. Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-154, 6 AEC 827 (1973). 5.13.2 Briefs on Appeal Briefs in support of an appeal must be filed under 10 CFR 1 9 2.762. Failure to file a brief can result in dismissal of the appeal. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-270, 1 NRC 473 (1975). Those aspects of an appeal not addressed by the supporting brief may be disregarded by the ! Appeal Board. Midland, suora; Northern Indiana Public Service fa,. (Bailly Generating Station, Nuclear-1), ALAB-207, 7 AFC j 957 (1974). , When an intervenor is represented by counsel, an Appeal Board I has no obligation to piece together or to restructure vague references in its brief in order to make intervenor's arguments for it. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1255 (1982), citina, Public Service Electric and Gas Co. (Salem Nuclear ; Generating Station, Unit 1), ALAB-650, 14 NRC 43, 51 (1981), aff'd sub nom., Townshin of Lower Alloways Creek v. Public Service Electric and Gas Co., 687 F.2d 732 (3rd Cir.1982). Briefs in support of appeals must specify the precise portion l of the record relied upon in support of the assertion of error. 10 CFR 9 2.762(a) (now 10 CFR S 2.762(d)); Common-wealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, i 12 NRC 419, 424 (1980). 5.13.3 Effect of Failure to File Proposed Findings The Appeal Board is not required to review an appeal where no proposed findings and rulings were filed by the appellant on j the issue with respect to which the appeal is taken. Florida ! Power & Licht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-280, 2 NRC 3, 4 n.2 (1975); Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-244, 8 AEC 857, 864 (1974). But see Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17, 21, 23 (1983). 5.13.4 Motions to Strike Appeal A party may file a motion to strike an appeal or brief l which is not in substantial compliance with the provisions of 10 CFR s 2.762. Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122 (1977); Tennessee Valley Authority (Hartsville Nuclear , Plant, Units 1A, 2A,1B & 28), ALAB-409, 5 NRC 1391, 1396-1397 (1977). Such a motion is also appropriate to i JUNE 1988 APPEALS 62
5.14 7
~
U exclude improper or ' scandalous appeals. Hartsville, supra, 5 NRC at 1391 1 A motion to strike an appeal is not.appro-priate, however, where an assessment of its validity requires - "Y more than minimal: scrutiny of the underlying record. .1L 5.14' Certification to the Comission Pursuant to 10 CFR $ 2.785(d), an Appeal Board may certify to .the Comission any. major or novel question of policy,' . law'or_ procedure
.which is prpperly before the Appeal Board. Such certification may be at the Appeal Board's discretion or:at Commission direction. Sag.
Vermont Yankee Nuclear Power Coro. -(Vermont Yankee Nuclear Power V Station), ALAB-876, 26 NRC 277, 285-(1987). The Appeal: Board should . exercise its authority to certify questions to the Commission sparingly. Absent a compelling reason,'the Appeal Board will' decline certification. Vermont-Yankee Nuclear Power ; Corporation (Vermont Yankee Nuclear. Power Station),- Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2),.ALAB-421, 6 NRC 25, 27 (1977). The same is true for the Licensing Board. Consolidated Edison Co. of N.Y. Power Authority of the State of N.Y.
-(Indian Point, Unit 2; Indian Point, Unit 3), LBP-82-23, 15 NRC 647, 650 (1982).
Certification by the Appeal Board to the Commission is proper in a O case involving novel Staff action that presents a major policy question relevant to a pending application, where Appeal-Board. members-have diverging views, and the procedural rules preclude the parties themselves from petitioning for Commission review because the matter came before the Appeal Board itself on certification. Offshore Power Systems (Floating Nuclear Power Plants), ALAB-500, 8 NRC 323, 325 (1978). The Commission's Rules of Practice contemplate that requests for relief from Licensing Board actions (for example, in matters such as discovery) be tielegated to the Appeal Board, which functions as the Commission's delegate for these matters. 10 CFR H 2.785. Absent extraordinary circumstances warranting Commission involvement, request for interlocutory review of Licensing Board rulings and other relief should be directed to the Appeal _ Board rather than to the Commission. 10 CFR 66 2.730(f), 2.785. Pennsylvania Power and Liaht [L. (Susquehanna Steam Electric Station, Units 1 and 2), CLI-80-17, 11 NRC 678 (1980). In the context of initial review of Licensing Board actions, then, a certification to the Commission would go first to the Appeal Board under the specific delegation of 10 CFR 5 2.785(b)(1). Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), LBP-80-29, 12 NRC 581, 591 (1980). Referral directly to the Commission by the Licensing Board will not be granted absent a strong reason for bypassing the Appeal Board. Southern California Edison Co. (San Onofre Nuclear Generating O5 Station, Units 2 and 3), LBP-81-36, 14 NRC 691 (1981). JUNE 1988 APPEALS 63 L-_-___-___-____--______
i l 9 5.15 A motion for directed certification of an interlocutory Licensing Board ruling directly to the Commission will not be granted where the Licensing Board has no need to go back to the Commission.for guidance. Additionally, as with motions to Appeal Boards for directed certification, such a motion will not be granted unless the ruling either (1) threatens the movant with immediate and serious
' impact which as a practical matter cannot be alleviated by later !
appeal, or (2) affects the basic structure of the proceeding in a i pervasive or unusual manner. Lona Island Liahtina Co. (Shoreham l Nuclear Power Station, Unit 1), LBP-87-29, 26 NRC 302, 312 (1987), l citina, Public Service Co. of Indiana (Marble Hill Nuclear Generating l Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977). 5.15 Review of Appeal Board Decisions 10 CFR 9 2.786 has been modified to provide for an appeal to the Commission of an Appeal Board's decision. No appeal is permitted with respect to a decision or action on referral or certification under 10 CFR 99 2.718(1) or 2.730(f). Section 2.786 sets forth in I detail the requirements for an appeal to the Commission. 10 CFR 9 2.786(b)(1) provides that a party may file a petition for review of an Appeal Board decision within 15 days after service of that 1 decision. Consolidated Edison Co. of N.Y. (Indian Point Station, l No. 2), ALAB-414, 5 NRC 1425, 1427 (1977). The Commission's normal practice for review of Appeal Board decisions l under 10 CFR 9 2.786 applies even when an Appeal Board has conducted ! evidentiary hearings. Pacific Gas and Electric Co. (Diablo Canyon j Nuclear Power Plant, Units 1 and 2), CLI-81-21,14 NRC 595, 596 (1981), citina, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903 (1981); Virainia Electric Power Co. (North Anna Power Station, Units 1 and 2), ALAB-578, 11 NRC 189 (1980); Northern States Power Co. (Prairie Island Nuclear Generating Station, Units 1 and 2), ALAB-343, 4 NRC 169 (1976). The selection of parties to a Commission review proceeding is clearly a matter of Commission discretion (10 CFR 9 2.786(b)(6)) A major factor in the Commission decision is whether a party has actively sought or opposed Commission review. This factor helps reveal which parties are interested in Commission review and whether their i participation would aid that review. Therefore, a party desiring to be heard in a Commission review proceeding should participate in the process by which the Commission determines whether to conduct a review. An interested State which seeks Commission review is subject to all the requirements which must be observed by other parties. Public Service Comoany of New Hampshire (Seabrook Station, Units 1
& 2), CLI-77-25, 6 NRC 535 (1977).
Under 10 CFR 9 2.786(a), the Commission may, on its own motion, review an Appeal Board decision. Under an earlier version of Section 2.786(a), the Commission held that it had no obligation JUNE 1988 APPEALS 64 ' i
9 5.15.1 (") to state its reasons for electing to review an Appeal Board decision.
.USERDA (Clinch River Breeder Reactor Plant), CLI-76-13, 4 NRC 67 (1976).
In this vein, since the Commission is responsible for all actions and policies of the NRC, the Commission has the inherent authority to act upon or review sua soonte any matter before an NRC tribunal. To impose on the Commission, to the degree imposed on the judiciary, requirements of ripeness and exhaustion would be inappropriate sihce the Commission, as part of a regulatory agency, has a special responsibility to avoid unnecessary delay or excessive inquiry. Public Service Co. of N.H. (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 516 (1977). Although 10 CFR S 2.786(a) sets forth the type of issues for which, and situations in which, the Commission may direct certification of a record sua soonte prior to final action by a Licensing or Appeal Board below, it does not limit the Commission's inherent supervisory authority. JL Nevertheless, as a general rule, the Commission does not sit to review factual determinations made by its subordinate panel s. When an issue is of obvious significance and is not fact-dependent, and when its present resolution could materially shorten the pro-
,m ceedings and guide the conduct of other pending proceedings, the (d a Commission will generally dispose of the issue rather than remand it.
Seabrook, suota, 5 NRC at 517. Within 30 days of an Appeal Board decision, the Commission may review it.10 CFR S 2.786(a); Wasninaton Public Power Supply System (WPPSS Nuclear Project Nos. 3 and 5), ALAB-501, 8 NRC 381, 382 (1978). (Note that under 10 CFR s 2.772, the Commission may extend the time for review.) The Commission may dismiss its grant of review of an Appeal Board decision even though the parties have briefed the issues. Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), CLI-82-26, 16 NRC 880, 881 (1982), citina, Jones v. State Board of Education, 397 U.S. 31 (1970). ' The expression of tentative conclusions upon the start of a proceed-ing does not disqualify the Commission from again considering the issue on a fuller record. Nuclear Enaineerina Co.. Inc. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 4 (1980). 5.15.1 Effect of Commission's Refusal to Entertain Appeal The Commission's refusal to entertain a discretionary appeal does not indicate its view on the merits. Nor does it pre-p) (v' clude the Appeal Board from reconsidering the matter as to which Commission review was sought where that matter is still pending before the Appeal Board. Public Service Co. of SEPTEMBER 1988 APPEALS 65
5 5.15.2 Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 260 (1978). However, the Commission has a' Iso stated that a decision by it nu to review an Appeal Board decision upholding a Licensing Board decision authoriz-ing issuance of an operating license reflected the Commis-sion's belief that the Appeal Board decision was -legally and factually sound. The Appeal Board decision thus constituted final agency action. However, under Commission' policy, the NRC Staff does not issue full-power licenses without Commis-sion approval on uncontested as well as contested issues. Cleveland Electric Illuminating Co. (Derry Nuclear Power Plant, Units 1 and 2), CLI-86-22, 24 NRC 685, 688, 689 (1986), aff'd sub nom, on other arounds, Ohio v. NRC, 814 F.2d 258 (6th Cir. 1987), citina, 46 Fed. Rea. 47906 (Sept. 30, 1981). When the Commission declines to review an Appeal Board decision, a final agency determination has been made resulting ! in the termination of Appeal Board jurisdiction. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-766, 19 NRC 981, 983 (1984). See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978). 5.15.2 Stays Pending Judicial Review of Appeal Board Decision Appeal Boards will entertain requests for stays pending judicial review of their decisions and will apply the Virainia Petroleum Jobbers criteria (igg Section 5.7.1, suora) to determine if a stay is appropriate. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-224, 8 AEC 244, 272 (1974). The Commission itself will entertain requests for a stay pending judicial review and will apply the same criteria. Natural Resources Defense Council, CLI-76-2, 3 NRC 76 (1976). Section 10(d) of the Administrative Procedure Act (5 U.S.C. s 705) pertains to an agency's right to stay its own action pending judicial review of that action. It confers no freedom on an agency to postpone taking some action when the impetus for the action comes from a court directive. Consumers Power Comoany (Midland Plant, Units 1 & 2), ALAB-395, 5 NRC 772, 783-84 (1977). The Appeal Board suspended sua sponte its consideration of an j issue in order to await the possibility of Supreme Court i review of related issues, following the rendering of a decision by the First Circuit Court of Appeals, where l certiorari had not yet been sought or ruled upon for such l Supreme Court review. Public Service Co. of New Hamoshire , (Seabrook Station, Units 1 and 2), ALAB-548, 9 NRC 640, 642 l (1979). I 1 i SEPTEMBER 1988 APPEALS 66 3
S 5.18 l _j 1 5.15.3 Stays Pending Remand After Judicial Review l Where a litigant who has prevailed on a judicial appeal of an - NRC dt. cision seeks a suspension of the effectiveness of the ') NRC decision pending remand, such a suspension is not i controlled by the Virainia Petroleum Jobbers criteria but, instead, is dependent upon a balancing of all relevant equitable considerations. Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-458, 7 NRC 155, 159-160 (1978). In such circumstances the negative impact of the court's decision places a heavy burden of proof on those opposing the stay. i Id 7 NRC at 160. ' 5.16 Review of Commission Decisions 5.16.1 Review of Disqualification of a Commissioner Determinations on the disqualification of a Commissioner reside exclusively in that Commissioner, and are not re-viewable by the Commission. Consolidated Edison Co. of N.Y. (Indian Point, Unit 2) and Power Authority of the State of R,L (Indian Point, Unit 3), CLI-81-1, 13 NRC 1 (1981), clarified, CLI-81-23, 14 NRC 610 (1981); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 &
,m 2), CLI-80-6, 11 NRC 411 (1980).
5.17 Reconsideration by the Commission The Commission's ability to reconsider is inherent in the ability to decide in the first instance. The Commission has 60 days in which to reconsider an otherwise final decision, which is at the discretion of the Commission. Florida Power and Licht Company (St. Lucie Nuclear Power Plant, Unit 2), CLI-80-41, 12 NRC 650, 652 (1980). 10 CFR s 2.771 provides that a party may file a petition for re-consideration of a final decision within 10 days after the date of that decision. A majority vote of the Commission is necessary for reconsideration of a prior Commission decision. U.S. Department of Enerav. Pro.iect l Manaaement Corporation. Tennessee Valley Authority (Clinch River l Breeder Reactor Plant), CLI-82-8, 15 NRC 1095, 1096 (1982). , 5.18 Jurisdiction of NRC to Consider Matters While Judicial Review is Pendina i l The NRC has jurisdiction to deal with supervening developments in a case which is pending before a court, at least where those develop-ments do not bear directly on any question that will be considered by the court. Public Service Co. of New Hampshire (Seabrook Station, C3 Units 1 & 2), ALAB-349, 4 NRC 235 (1976).
<]
JUNE 1988 APPEALS 67
)
l 5 5.19 There has been no definitive ruling as to whether the NRC has jurisdiction to consider matters which do bear directly on questions pending before a court. In any event, it is clear that the Appeal j Board considers it inappropriate to do so, at least where the court j has not s)ecifically requested it, based on considerations of comity between tie court and the agency. Egg Public Service Co. of New . Hamoshire (Seabrook Station, Units 1 & 2), ALAB-350, 4 NRC 365 { (1976); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power ) Plant, Units 1 and 2), CLI-85-14, 22 NRC 177,179 (1985), citina, 28 U.S.C. 9 2347(c). While the Appeai Board considers it inappropriate to consider matters bearing directly on questions pending before a court where it , has not been directed to do so by the court, NRC must act promptly and constructively in effectuating the decisions of the courts. Upon i issuance of the mandate, the court's decision becomes fully effective j on the Commission, and it must proceed to implement it. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 783-784 (1977). Neither the filing nor the granting of a petition for Supreme Court certiorari operates as a stay, either with respect to the execution of the judgment below or of the mandate below by the lower courts. E at 781. When the U.S. Court of Appeals has stay ~f its mandate pending final resolution of a petitior, for rehearing en banc on the validity of an NRC regulation, the regulation remains in effect, and the Board is bound by those rules until that mandate is issued. Clevel and Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-53, 16 NRC 196, 205 (1982). Where a party petitioning the Court of Appeals for review of the decision of the agency also petitions the agency to reconsider its decision and the Federal court stays its review pending the agency's disposition of the motion to reconsider, the Hobbs Act does not preclude the agency's reconsideration of the case. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 259 (1978). The pendency of a criminal investigation by the Department of Justice does not necessarily preclude other types of inquiry into the same matter by the NRC. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 188 (1983), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). The pendency of a Grand Jury proceeding does not legally bar parallel administrative action. Three Mile Island, suora,18 NRC at 191 n.27. 5.19 Procedure on Remand 5.19.1 Jurisdiction of the Licensing Board on Remand The question as to whether a Licensing Board, on remand, assumes its original plenary authority or, instead, is JUNE 1988 APPEALS 68
O 5 5.19.2 ( ;
limited to consideration of only those issues specified by the Appeal Board in the remand order was, for some time, un-resolved. S_qe Philadelphia Electric Co. (Poach Bottom Atomic Power Station, Units 2 and 3), ALAB-389, 5 NRC 727 (1977). Of course, jurisdiction may be regained by a rernnd order of either the Commission or a court, issued during the course of review of the decision. Issues to be considered by the Board on remand would be shaped by that order. If the remand related to only one or more specific issues, the finality doctrine would foreclose a broadening of scope to embrace other discrete matters. Viroinia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 708 (1979). More recently, however, a Licensing Board was found to be
" manifestly correct" in rejecting a petition requesting intervention in a remanded proceeding where the scope of the remanded proceeding had been limited by the Commission and the petition for intervention dealt with matters outside that scope. This establishes that a Licensing Board has limited jurisdiction in a remanded proceeding and may consider only what has been remanded to it. Carolina Power and Liaht Co.
(Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 n.3 (1979). Egg Philadelphia Electric Co.
/9 (Limerick Generating Station, Units 1 and 2), ALAB-857, 25 NRC 7,11,12 (1987) (the Licensing Board properly rejected l
('~) an intervenor's proposed license conditions which exceeded the scope of the narrow remanded issue of school bus driver availability). Although an adjudicatory board to which matters have been remanded would normally have the authority to enter any order appropriate to the outcome of the remand, the Commission may, of course, reserve certain powers to itself, such as, for ex-ample, reinstatement of a construction permit suspended pend-ing the remand. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), CLI-78-14, 7 NRC 952, 961 (1978). l l Where the Commission remands an issue to a Licensing Board it is implicit that the Board is delegated the authority to prescribe warranted remedial action within the bounds of its general powers. However, it may not exceed these powers. Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), ALAB-577, 11 NRC 18, 29 (1980), modified, CLI-80-12, 11 NRC 514 (1980). 5.19.2 Jurisdiction of the Appeal Board on Remand Under settled principles of finality of adjudicatory ac-tion, once an Appeal Board has finally determined a dis-(n\ crete issue in a proceeding, its jurisdiction is ter-h minated with respect to that issue, absent a remand order. Metropolitan Edison Co. (Three Mile Island Nuclear Station, JUNE 1988 APPEALS 69 1 ___________-_____._________-___.__A
I 6 5.19.3 Unit 1),-ALAB-766, 19 NRC 981, 983 (1984), citina, Virainia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551, 9 NRC 704, 708-09 (1979); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-513, 8 NRC 694, 695 (1978). The Appeal Board's jurisdiction over previously determined issues.is not necessarily preserved by the pendency before it of other issues in a proceeding. Three Mile Island, supra,19 NRC at 983, citina, North Anna, supra, 9 NRC at 708-09; Seabrook, supra, 8 NRC at 695-96. Where the Appeal Board remands the record to the existing Licensing Board for the receipt of further evidence on the quality assurance issue, the Appeal Board may retain jurisdic-tion over the proceeding. Therefore, once the Licensing Board has completed the hearing on remand and rendered its sup-plemental decision, there will be no necessity for any party to file a new notice of appeal. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-770,19 NRC 1163, 1168 (1984). 5.19.3 Stays Pending Remand 10 CFR 9 2.788 does not expressly deal with the matter of a stay pending remand of a proceeding to the Licensing Board. Prior to the promulgation of Section 2.788, the Commission held that the standards for issuance of a stay pending remand are less stringent than those of the Virainia Petroleum Jobbers test. Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503 (1977). In this vein, the Commission ruled that the propriety of issuing a stay pending remand was to be determined on the basis of a traditional balancing of equities and on consideration of , possible prejudice to further actions resulting from the remand proceedings. Where judicial review discloses inadequacies in an agency's environmental impact statement prepared in good faith, a stay of the underlying activity pending remand does not follow automatically. Whether the project need be stayed essentially must be decided on the basis of (1) traditional balancing of equities, and (2) consideration of any likely prejudice to further decisions that might be called for by the remand. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 784-85 (1977). The seriousness of the remanded issue is a third factor which a Board will consider before ruling en a party's motion for a stay pending remand. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-84-53, 20 NRC 1531, 1543 (1984), citina, Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 521 (1977). JUNE 1988 APPEALS 70
s
' (' 9 5.19.4
[ 5.19.4 Participation of Parties in Remand Proceedings Where an issue is remanded to the Licensing Board and a party did not previously participate in consideration of that issue, submitting no contentions, evidence or proposed findings on it and taking no exceptions to the Licensing Board's disposition of it, the Licensing Board is fully justified in excluding that party from participation in the remanded hearing on that-issue. Status as a party does not carry with it a license to step in and out of consideration of issues at will. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 268-69 (1978). O JUNE 1988 APPEALS 71
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TABLE OF CONTENIS GENERAL MATTERS 6.0 GENERAL MATIERS GM 1 6.1 Amendments to Existino Licenses and/or Construction Permits GM 1 6.1.1 Staff Review of Proposed Amendments (Reserved) GM 1 6.1.2 Amendments to Research Reactor Licenses (Reserved) GM 1 6.1.3 Matters to be Considered in License Amendmeat Proceedings (Reserved) GM 1 6.1.3.1 Specific Matters Considered in License Amendment Proceedings GM 2 6.1.4 Hearing Requirements for License /Perait Amendments GM 2 6.1.4.1 Notice of Hearing on License / Permit Amendments (Reserved) GM 4 6.1.4.2 . Intervention on License / Permit Amendments GM 4 6.1.4.3- Summary Disposition Procedures on License / Permit Amendments 6M 4 6.1.4.4 Ma % rs Considered in Hearings on License Amendments GM 5 6.1.5 Pr.aary Jurisdiction in Appeal Board to Consider ( License Amendment in Special Hearing GM 6 6.1.6 Facility Changes Without License Amendments GM 6 6.2 Amendments to License / Permit ADDlications GM 7 6.3 Antitrust Considerations GM 7 6.3.1 Consideration of Antitrust natters After the Construction Permit Stage GM 10 6.3.2 Intervention in Antitrust Proceedings GM 12 6.3.3 Discovery in Antitrust Proceedings GM 14 6.3.3.1 Discovery Cutoff Dates for Antitrust Proceedings GM 14 6.4 Attorney Conduct GM 15 6.4.1 Practice Before Licensing / Appeal Boards GM 15 6.4.1.1 Professional Decorum Before Licensing / Appeal Boards GM 16 0.4.2 Disciplinary Matters re Attornry GM 17 6.4.2.1 Jurisdiction of Special Board r Attorne Discipline GM 18 6.4.2.2 Procedures in Special Disqualificatiw R : rings re Attorney Conduct GM 18 6.4.2.3 Conflict of Interest GM 19 6.5 Communications Between Staff /Apolicant/0ther Parties / Ad.iudicatory Bodies GM 19 6.5.1 Ex Parte Connunications Rulo GM 19 6.5.2 Telephone Conference Calls GM 21 O 6.5.3 Staff-Applicant Communications GM 22 V SEPTEMBER 1988 GENERAL MATTERS - TABLE OF CONTENTS i
11 TABLE OF CONTENTS GENERAL MATTERS 6.5.3.1 Staff Review of Application GM 22 6.5.3.2 Staff-Applicant Correspondence GM 22 6.5.4 Notice of Relevant Significant Developments GM 23 6.5.4.1 Duty to Inform Adjudicatory Board of Significant Developments GM 23 6.6 Early Site Review Procedures GM 26 6.6.1 Scope of Early Site Review GM 27 6.7 Endanaered foecies Act GM 27 6.7.1 Required Findings re Endangered Species Act GM 27 6.7.2 Degree of Proof Needed re Endangered Species Act GM 28 6.8 Financial Qualifications GM 28 1 6.9 Generic Issues GM 29 6.9,1 Consideration of Generic Issues in Licensing Proceedings GM 29 6.9.2 Effect of Unresolved Generic Issues GM 31 6.9.2.1 Effect of Unresolved Generic Issues in Construction 4 Permit Proceedings GM 31 l 6.9.2.2 Effect of Unresolved Generic Issues in Operating ' License Proceedings GM 32 6.10 Inspection and Enforcement GM 33 6.10.1 Enforcement Actions GM 34 6.10.1.1 Civil Penalties GM 35 6.10.1.2 Show Cause Proceedings (SEE 6.24) GM 37 1 6.11 Masters in NRC Proceedings GM 37 . 6.12 Material False Statements in Applications GM 38 ! (SEE 1.5.2) ! 6.13 Materials Licenses GM 38 6.14 Motions in NRC Proceedings GM 40 6.14.1 Form of Motion CM 41 , i 6.14.2 Responses to Motions GM 41 6.14.2.1 Time for Filing Responses to Motions GM 41 6.14.3 Licensing Board Actions on Motions GM 41 6.15 NEPA Considerations GM 42 6.15.1 Environmental Impact Statements (EIS) GM 45 6.15.1.1 Need to Prepare an EIS GM 46 , 6.15.1.2 Scope of EIS GM 49 6.15.2 Role of EIS GM 50 SEPTEMBER 1988 GENERAL MATTERS - TABLE OF CONTENTS 11
p i iii s_ TABLE OF CONTENTS GENERAL MATTERS 6.15.3 Circumstances Requiring Redrafting of Final Environmental Statement (FES) GM 51 6.15.3.1 Effect of Failure to Comment on Draft Environmental Statement (DES) GM 53 6.15.3.2 Stays Pending Remand for Inadequate EIS GM 54 6.15.4 Alternatives GM 54 6.15.4.1 Obviously Superior Standard for Site Selection GM 57 6.15.4.2 Standards for Conducting Cost-Benefit Analysis Related to Alternatives GM 58 6.15.5 Need for Facility. GM 60 6.15.6 Cost-Benefit Analysis Under NEPA GM 60 6.15.6.1 Consideration of Specific Costs Under NEPA GM 63 6.15.6.1.1 Cost of Withdrawing Farmland fram Production GM 63 (SEE 3.7.3.5.1) 6.15.6.1.2 Socioeconomic Costs as Affected by Increased Employment and Taxes from Proposed Facility GM 63 6.15.7 Consideration of Class 9 Accidents in an Environmental Impact Statement GM 63
/s 6.15.8 Power of NRC Under NEPA GM 65
- ( _,)- 6.15.8.1 Powers in General (Under NEPA) GM 66 6.15.8.2 Transmission Line Routing GM 68 6.15.8.3 Pre-LWA Activities /0ffsite Activities GM 69 6.15.8.4 Relationship to EPA with Regard to Cooling Systems GM 69 6.15.8.5 NRC Power Under NEPA with Regard to FWPCA GM 70 6.15.9 Spent Fuel Pool Proceedings GM 70 6.16 NRC Staff GM 72 6.16.1 Staff Role in Licensing Proceedings GM 72 6.16.1.1 Staff Demands on Applicant or Licensee GM 76 6.16.1.2 Staff Witnesses GM 77 6.16.1.3 Post Hearing Resolution of Outstanding Matters by the Staff GM 77 6.16.2 Status of Staff Regulatory Guides GM 80 6.16.3 Status of Staff Position and Working Papers GM 82 6.16.4 Status of Standard Review Plan GM 82 6.16.5 Conduct of NRC Employees (Reserved) GM 83 6.17 Orders of Licensino and Appeal Boards GM 83 6.17.1 Compliance with Board Orders GM 83 6.18 Precedent and Adherence to Past Aaency Practice GM 84 6.19 Pre-Permit Activities GM 84 6.19.1 Pre-LWA Activity GM 86
[ 6.19.2 Limited Work Authorization GM 88 s 6.19.2.1 LWA Status Pending Remand Proceedings GM 89 i SEPTEMBER 1988 GENERAL MATTERS - TABLE OF CONTENTS iii
iv TABLE OF CONTENTS GENERAL MATTERS 6.20 Regulations GM 89 6.20.1 Compliance with Regulations GM 89 6.20.2 Commission Policy Statements GM 90 6.20.3 Regulatory Guides GM 90 6.20.4 Challenges to Regulations GM 91 6.20.5 Agency's Interpretation of its Own Regulations GM 95 6.21 Rulemaking GM 95 6.21.1 Rulemaking Distinguished from General Policy Statements GM 96 6.21.2 Generic Is!,ues and Rulemaking GM 96 6.22 Research Reactors GM 96 6.23 Disclosure of Information to the Public GM 97 6.23.1 Freedom of Information Act Disclosure GM 98 6.23.2 Privacy Act Disclosure (Reserved) GM 99 6.23.3 Disclosure of Proprietary Information GM 99 6.23.3.1 Protecting Information Where Disclosure is Sought in an Adjudicatory Proceeding GM 100 6.23.3.2 Security Plan Information Under 10 CFR 9 2.790(d) GM 102 6.24 Show Cause Proceedings GM 103 6.24.1 Petition for Show Cause Order GM 105 6.24.1.1 Grounds for Show Cause Order GM 105 6.24.1.2 Burden of Proof for Show Cause Order GM 105 6.24.1.3 Issues in Show Cause Proceedings GM 106 6.24.2 Standards for Issuing Show Cause Order GM 106 6.24.3 Review of Decision on Request for Show Cause Order GM 106 6.24.4 Notice / Hearing on Show Cause to Licensee / Permittee GM 108 6.24.5 Burden of Proof in Show Cause Proceedings GM 109 6.24.6 Consolidation of Petitioners in Show Cause Proceedings GM 109 6.24.7 Necessity of Hearing in Show Cause Proceedings GM 109 6.24.8 Intervention in Show Cause Proceedings GM 110 6.25 Summary Disposition Procedures (SEE 3.5) GM 110 6.26 Suspension. Revocation or Modification of License GM 110 l i 6.27 Technical Specifications GM 111 6.28 Termination of Facility Licenses GM 112 l l 6.29 Procedures in Other Tvoes of Hearinas GM 112 l 6.29.1 Military or Foreign Affairs Functions GM 112 l 6.29.2 Export Licensing GM 112 I (SEE ALSO 3.4.6) l 6.29.2.1 Jurisdiction of Commission re Export Licensing GM 112 6.29.2.2 Export License Criteria GM 113 SEPTEMBER 1988 GENERAL MATTERS - TABLE OF CONTENTS iv ! - l
,m 6 6.1.3 i 6.0 GENERAL MATTERS 6.1 Amendments to Existina Licenses and/or Construction Permits General requirements and guidance for the amendment of an existing license or construction permit for production and utilization facilities are set out in 10 CFR Ss 50.90, 50.91.
In passing upon an application for an amendment to an operating license or construction permit, "the Commission will be guided by the considerations which govern the issuance of initial licenses or construction permits to the extent applicable and appropriate." 10 CFR S 50.91. These considerations are broadly identified in 10 CFR 6 50.40. In essence, Section 50.40 requires that the Commission be persuaded, inter alia, that the application will comply with all applicable regulations, that the health and safety of the public will not be endangered, and that any appliciale requirements of 10 CFR Part 51 (governing environmental protec ion) have been satisfied. Northern States Power Company (Prairie Island Nuclear Generating Plant, Un.cs 1 and 2), ALAB-455, 7 NRC 41, 44 (1978). . For two years following the Three Mile Island accident, the Commis-sion authorized the operation of a nuclear facility by issuing, first, a low-power license, and then, a full-power operating license.
- However, believing that it was unnecessary to issue two separate (3 licenses, the Commission in recent years has " amended" an existing V) low-power license by dropping the low-power limitation and authoriz-ing full-power operation. Such a " license amendment" in a previously uncontested licensing proceeding is not intended to create any new hearing rights under 6 189a of the Atomic Energy Act of 1954 which requires an appropriate notice and opportunity for hearing on an amendment to an operating license. Mississioni Power and Liaht Co.
(Grand Gulf Nuclear Station, Unit 1), CLI-84-19, 20 NRC 1055,1058-1059 (1984). A Board must evaluate an application for a license amendment according to its terms. The Board may not speculate about future I events which might possibly affect the application. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-86-21, 23 NRC 849, 855, 8E9 (1986). 6.1.1 Staff Review of Proposed Amendments (RESERVED) 6.1.2 Amendments to Research Reactor Licenses (RESERVED) 6.1.3 Matters to be Considered in License Amendment Proceedings (RESERVED) o SEPTEMBER 1986 GENERAL MATTERS 1 L _ ___-___-- _----_--_- _
9 6.1.3.1 6.1.3.1 Specific Matters Considered in License Amendment Proceedings While the balancing of costs.and benefits of a project is usually done in the context of an environmental impact statement prepared because the project will have significant environmental impacts, at least one court has implied that a cost-benefit analysis may be necessary for certain federal actions which, of themselves, do not have a significant environmental impact. Specifically, the court opined that an operating license amendment derating reactor power signifi- > cantly could upset the original cost-benefit balance and, , therefore, require that the cost-benefit balance for the ' facility be reevaluated. Union of Concerned Scientists v. AEG, 499 F.2d 1069, 1084-85 (D.C. Cir. 1974). Neither the Staff nor the Licensing Board need concern itself with the matter of the ultimate disposal of spent fuel; i.e., with the pssibility that the pool will become an indefinite or permanent repository for its contents, in the evaluation of a proposed expansion of the capacity of a spent fuel pool. Rorthern States Power Comoany (Prairie Island Nuclear Gen-erating Plant, Units 1 & 2), ALAB-455, 7 NRC 41, 51 (1978). A license amendment that does not involve, or result in, environmental impacts other than those previously considered ' and evaluated in prior initial decisions for the facility in question does not require the preparation and issuance of ; either an environmental impact statement or an environmental l impL.t appraisal and negative declaration pursuant to 10 CFR i 6 51.5(b) and (c). Portland General Electric Co. (Trojan ; Nuclear Plant), LBP-78-40, 8 NRC 717, 744-45 (1978), aff'd, 1 ALAB-534, 9 NRC 287 (1979). 6.1.4 Hearing Requirements for License / Permit Amendments i The Atomic Energy Act of 1954, as amended, does not specif-ically require a mandatory hearing on the question as to whether an amendment to an existing license or permit should issue. At the same time, the Act and the regulations (10 CFR 9 2.105(a)(3)) require that, where a proposed amendment involves "significant hazards considerations," the opportunity for a hearing on the amendment be provided prior to issuance of the amendment and that any hearing requested be held prior to issuance of the amendment. An opportunity for a hearing will also be provided on any other amendment as to which the Commission, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards determines that an opportunity for public hearing should be afforded. 10 CFR s 2.105(a)(6),(7). Construction permit amendment / extension cases, unlike con-struction permit proceedings, are not subject to the mandatory hearing requirement. Washinaton Public Power Suoolv System SEPTEMBER 1988 GENERAL MATTERS 2
/ \
g 96.1.4. (WPPSS Nuclear Project No.1), ALAB-771,19 NRC 1183,1188 (1984). A prior hearing is not required under Section 189a of the: Atomic Energy Act, as amended,;for Commission approval of a license amendment in situations where the NRC Staff makes a "no significant hazards consideration" finding. f_gmanwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CLI-81-25, 14 NRC 616, 622-623 (1981); Texas ~ Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CLI-86-4, 23 NRC 113,-123 (1986). Egg Pacific' Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-86-12, 24 NRC
-1, 11- (1986), rev'd and remanded on other arounds, San'Luis Obisoo Mothers For Peace v. NRC, 799 F.2d 1268 (9th Cir. 1986).
The legislative history of Section 12 of Pub. L. 97-415 (1982), the "Sholly Amendment", modifying Section 189(a) of the Atomic Energy Act of 1954, supports the determination that Congress intended that hearings on license amendments be held, if properly requested, even after irre'rersible actions have been taken upon a finding of no significant hazards considera-tion.- Mississioni Power and Licht Co. (Grand Gulf Nuclear Station, Unit 1), LBP-84-23, 19 NRC 1412, 1414-15 (1984). Thus a timely filed contention will not be considered moot, g even if the contested action has been completed. Mississioni
; 1 Power and Liaht Co. (Grand Gulf Nuclear Station, Unit 1), LBP-
, V' 84-19, 19 NRC 1076, 1084 (1984). l A Board may terminate a hearing on an application for an amendment to an operating license when the only intervenor withdraws from the hearing, and there are no longer any matters in controversy. Mississiooi Power and liaht Co. (Grand Gulf Nuclear Station, Unit 1), LBP-34-39, 20 NRC 1031, 1032 (1984). I A hearing on an application for a facility license amendment may be dismissed when the parties have all agreed to a stipulation for the withdrawal of all the interveners' l admitted contentions and the Board has not raised any sua sponte issues. Pacific Gas and Electric Co. (Humboldt Bay Power Plant, Unit 3), LBP-88-4, 27 NRC 236, 238-39 (1988). A hearing can be requested on the application for a license amendment to reflect a change in ownership of a facility. ! Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 80 (1977). A license amendment may become immediately effective under 10 CFR 9 2.204 without a prior hearing if the public health, safety or interest requires. Furthermore, there is no inherent contradiction between a finding that there is "no (ANj significant hazard" in a given case and a finding in the same case that latent conditions may potentially cause SEPTEMBER 1988 GENERAL MATTERS 3 1. L_-____ _ _ - -
6 6.1.4.1 harm in the future thus justifying immediate effectiveness of an amendment permitting corrections. Nuclear Fuel Services Inc. and New York State Enerav Research and Development Authority (Western New York Nuclear Service Center), CLI-81-29, 14 NRC 940, 942 (1981). For there to be any statutory right to a hearing on the granting of an exemption, such a grant must be part of a proceeding for the granting, suspending, revoking, or amending of any license or construction permit under the Atomic Energy l Act. United States Department of Enerav. Pro.iect Manaaement Cc7Doration. Tennessee Valley Authority (Clinch River Breeder Reactor Plant), CLI-82-23,16 NRC 412, 421 (1982). 6.1.4.1 Notice of Hearing on License / Permit Amendments (RESERVED) 6.1.4.2 Intervention on License / Permit Amendments The requirements for intervention in license amendment proceedings are the same as the requirements for intervention in initial permit or license proceedings (ige generally Section 2.9). The right to intervene is not limited to those persons who oppose the proposed amendment itself, but extends to those who raise related claims involving matters arising directly from the proposed amendment. Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), ALAB-245, i 8 AEC 873, 875 (1974). 1 Persons who would have standing to intervene in new con- ' struction permit hearings, which would be required if good cause could not be shown for the extension, have standing to intervene in construction extension proceedings to show that no good cause existed for extension and, consequently, new construction permit hearings would be required to complete construction. Northern Indiana Public Service Comoany (Bailly Generating Station, Nuclear 1), LBP-80-22, 12 NRC 191, 195 (1980). 6.1.4.3 Summary Disposition Procedures on License / Permit Amendments Summary disposition procedures may be used in proceedings held upon requests for hearings on proposed amendments. Boston Edison Co. (Pilgrim Nuclear Station, Unit 1), ALAB-191, 7 AEC 417 (1974). In a construction permit amendment proceeding, summary disposition may be granted based on pleadings alone, or pleadings accompanied by affidavits or other documentary information, where there is no genuine issue as to any material fact that warrants a hearing and the moving party JUNE 1988 GENERAL MATTERS 4 _ _ _ _ _ - - - _ - _ - - - )
o j 96.1.4.4.
\ !
C)- is entitled to a decision in its favor as a matter of law. Washinaton Public Power Sunoly Svit.gm (WPPSS Nuclear' Project No. 1), ALAB-771, 19 NRC 1183, 1189 (1984),- citina, 10 CFR-9 2.749(d). 6.1.4.4 Matters Considered'in Hearings on License Amendments-In considering an amendment to transfer part ownership of a facility, a Licensing Board held that questions concerning the legality of transferring some ownership interest in advance of'the Commission action on the amendment was outside its jurisdiction and should be pursued under the provisions of 10 CFR Part 2, Subpart B (dealing with enforcement) instead. Detroit Edison Comoany (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 386 (1978). The same Licensing Board also ruled that issues to be considered'in such a transfer of ownership proceeding do not include questions of the financial qualifications of the original applicant or the technical qualification of any of the applicants. Enrico Fermi, supra, 7 NRC at 392. With regard to environmental considerations in a proceeding on an application for license amendment, a Licen.cing Board should not:
... embark broadly upon a fresh assessment of the environ-(U) mental issues which have already been thoroughly con-sidered and which were decided in the initial decision.
Rather, the Board's role in the environmental sphere will be limited to assuring itself that the ultimate NEPA conclusions reached in the initial decision are not significantly affected by such new developments .... Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-11, 7 NRC 381, 393 (1978), citina, Georaia Power Company (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 415 (1975). A license amendment that does not involve, or result in, environmental impacts other than those previously con-sidered and evaluated in prior initial decisions for the facility in question does not require the preparation and i issuance of either an environmental impact statement or environmental impact appraisal and negative declaration l pursuant to 10 CFR s 51.5(b) and (c). Portland General Electric Comoanv (Trojan Nuclear Plant), LBP-78-40, 8 NRC 717, 744-45 (1978), aff'd, ALAB-534, 9 NRC 287 (1979). For example, the need for power is not a cognizable issue in a license amendment proceeding where it has been addressed in previous construction permit and operat-ing license proceedings. Tro.ian, suora, 9 NRC at 289, O cited in Florida Power and Liaht Co. (Turkey Point JUNE 1988 GENERAL MATTERS 5 = - - _ - _ - _ _ - - - - _ _ -_. . _ .
l 9 6.1.5 i Nuclear Generating Plant, Units 3 and 4), LBP-81-14,13 NRC 677, 698 n.49 (1981). Where health and safety issues were evaluated during the operating license proceeding, a Licensing Board will not admit a contention which provides no new information or other basis for reevaluating the previous findings as a result of the proposed amendment. Florida Power and Licht Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, 466 (1988), aff'd on other arounds, ALAB-893, 27 NRC 627 (1968). A Licensing Board lacks jurisdiction to consider an inter-venor's contentions which challenge the NRC Staff's "no significant hazards consideration" determination under 10 CFR S 50.91. Vermont Yankee Nuclear Power Coro. (Vermont Yankee _l Nuclear Power Station), LBP-87-17, 25 NRC 838, 844 (1987), citina, 10 CFR 5 50.58(b)(6), aff'd in oart on other arounds, ALAB-869, 26 NRC 13 (1987), reconsid. denied on other arounds, ALAB-876, 26 NRC 277 (1987); Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, Unit 1), LBP-88-10A, 27 NRC 452, ! 457 (1988), aff'd on other arounds, ALAB-893, 27 NRC 627 (1988). 6.1.5 Primary Jurisdiction in Appeal Board to Consider License Amendment in Special Hearing Although the usual procedure for amending an existing license involves a licensee's applying for the proposed amendment pursuant to 10 CFR @ 50.90, this is not the sole and exclusive means for obtaining an amendment. For example, where the Commission orders a rpecial hearing on particular issues { before the Appeal Board, the licensee may seek, and the Appeal ' Board has jurisdiction to issue, an amendment to the license l as long as the modification sought bears directly on the ques-tions addressed in the hearing. In such a situation, the licensee need not follow the usual procedure for filing an application for an amendment under 10 CFR s 50.90. Consoli-dated Edison Co. of N.Y. (Indian Point Station, Units 1, 2 & 3), ALAB-357, 4 NRC 542 (1976), aff'd, CLI-77-2, 5 NRC 13 (1977). Moreover, the Appeal Board's authority to modify l license conditions in such an instance is not limited by the inadequacies of the materials submitted by the parties; the Board may take such action as the public interest warrants. Jd 6.1.6 Facility Changes Without License Amendments 10 CFR @ 50.59(a)(1) provides that changes may be made to a production or utilization facility without prior NRC approval where such changes do not involve an unreviewed safety ques-tion, as defined in Section 50.59(a)(2), or a change in tech-nical specifications. The determination as to whether a SEPTEMBER 1988 GENERAL MATTERS 6
) 9 6.3 proposed change requires prior NRC approval under Section 50.59 apparently rests with the licensee in the first instance.
Where a hearing on a proposed license amendment was pend-ing and the licensee embarked on " preparatory work" rela-ted to the proposed amendment without prior authorization, the preriding Licensing Board denied an intervenor's re-quest ror a cease and desist order with regard to such work on the grounds that there was no showing that such work posed any immediate danger to the public health and safety or violated NEPA and that such work was done entirely at the licensee's risk. Portland General Electric Co. (Trojan Nuclear Plant), LBP-77-69, 6 NRC 1179, 1184 (1977). Subsequently, the Appeal Board indicated that the intervenor's complaint in this regard might more appropriately have been i directed, in the first instance, to the Staff under 10 CFR 9 2.206, rather than to the Licensing Board. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-451, 6 NRC 889, 891 n.3 (1977). , 6.2 Amendments to License / Permit Aeolications n Three years after the Licensing Board sanctioned a limited work
- ) authorization (LWA) and before the applicant had proceeded with any id construction activity, applicant indicated it wanted to amend its construction permit application to focus only on site suitability issues. The Appeal Board "vacateIdl without ore.iudice" the decisions of the Licensing Board sanctioning the LWA, and remanded the case for proceedings deemed appropriate by the Licensing Board upon formal receipt of an early site approval application. Delmarva Power &
Licht Co. (Summit Power Station. Units 1 and 2), ALAB-516, 9 NRC 5 (1979). 6.3 Antitrust Considerations Section 105(c)(6) of the Atomic Energy Act of 1954 indicates that nothing in the Act was intended to relieve any person from complying with the federal antitrust laws. This section does not authorize the NRC to institute antitrust proceedings against licensees, but does permit the Commission to impose conditions in a license as needed to ensure that activities under the license will not con-tribute to the creation or maintenance of an anticompetitive situation. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), LBP-77-7, 5 NRC 452 (1977). Note that reactors licensed as research and development facilities under Section 104(b) ! of the Atomic Energy Act prior to the 1970 antitrust amendments are excluded from antitrust review. Florida Power & Licht Co. (St. Lucie Plant, Unit 1; Turkey Point Plant, Units 3 & 4), ALAB-428, 6 NRC 221, (N 225 (1977); Toledo Edison Co. (Davis-Besse Nuclear Power Station, Unit 1), ALAB-323, 3 NRC 331 (1976). (v) SEPTEMBER 1988 GENERAL MATTERS 7
9 6.3 The standard to be eroloyed by the NRC is whether there is a " reason-able probability" that a situation inconsistent with the antitrust l laws and the policies underlying those laws would be created or maintained by the unconditioned licensing of the facility. Alabama Power Company (Joseph H. Farley Nuclear Plant, Units 1 and 2), LBP-77-24, 5 NRC 804 (1977). The Commission's statutory obligation, i pursuant to Section 105(c), is not limited to investigation of the ( effects of construction and operation of the facility to be licensed, but rather includes an evaluation of the relationship of the specific nuclear facility to the applicant's total system or power pool. Id. This threshold determination as to whether a situation inconsistent with the antitrust laws could arise from issuance of the proposed l license does not involve balancing public interest factors such as j public benefits from the activity in question, public convenience and necessity, or the desirability of competition. Only after the Commission determines that an anticompetitive situation exists or is likely to develop under a proposed license are such other factors considered. In exceptional cases, the NRC may issue the license, despite the possibility of an anticompetitive situation, if it determines that, on balance, issuance of the license would be in the public interest. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 632-633 (1977). ; J Under Section 105c of the Atomic Energy Act of 1954, a hearing on whether authorizing construction of a nuclear power facility "would create or maintain a situation inconsistent with the anti- 1 trust laws" is called for if the Attorney General so recommends i or an interested party requests one and files a timely petition to intervene. When an antitrust hearing is convened, a permit to construct the project may not be awarded without the parties' consent until the proceedings are completed. Florida Power and Liaht Co. (St. Lucie Nuclear Power Plant, Unit 2), ALAB-420, 6 NRC 8,10 (1977). ; One of the policies reflected in Section 105c of the Atomic Energy Act is that a government-developed monopoly -- like nuclear power electricity generation -- should not be used to contravene the policies of the antitrust laws. Section 105c is a mechanism to allow smaller utilities, municipals and cooperatives access to the licensing process to pursue their interests in the event that larger utility applicants might use a government license to create or maintain an anticompetitive market position. Florida Power & Liaht Company (St. Lucie Plant, Unit 2), CL1-78-12, 7 NRC 939, 946 (1978). When the Attorney General recommends an antitrust hearing on a license for a commercial nuclear facility, the NRC is required to conduct one. This is the clear implication of Section 105(c)(5) of the Atomic Energy Act. Where such a hearing is held, the Attorney General or his designee may participate as a party in connection with the subject matter of his advice. Houston Liahtina & Power Co. (South Texas Project, Units 1 & 2), CLI-78-5, 7 NRC 397, 398 (1978). Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2 and 3) and Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-560,10 NRC 265, 272 (1979). SEPTEMBER 1988 GENERAL MATTERS 8
\
l e 9 6.3 1 4 f V' In dealing with antitrust issues, the NRC's role is something more i than that of a neutral forum for economic disputes between private parties. If an antitrust hearing is convened, it should encompass , all significant antitrust implications of the license, not merely I the complaints of private interveners. If no one performs this function, the NRC Staff should assure that a complete picture is { presented to Licensing Boards. Florida Power & Liaht Company (St. l Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 949 (1978). The antitrust review undertaken by the Commission in licensing the construction of a nuclear power plant is, by statute, to determine "whether the activities under the license would create or maintain a situation inconsistent with the antitrust laws...." Section 105c(5) of the Atomic Energy Act of 1954, 42 U.S.C. 2135c(5). This means that the licensed activities must play some active role in creating or maintaining the anticompetitive situation. Put another way, the nuclear power plant must be an actor, an influence, on the anticom-petitive scene. Florida Power and Licht Co. (St. Lucie Plant, Unit No. 2), ALAB-665, 15 NRC 22, 32 (1982). Where a license is found to create or maintain a situation in-consistent with the antitrust laws, the Commission may impose corrective conditions on the license rather than withhold it. Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), (N LBP-78-13, 7 NRC 583, 597 (1978).
\
N-] Only the NRC is empowered to make the initial determination under section 105(c) whether activities under the license would create or maintain a situation inconsistent with the antitrust laws, and if so what license conditions should be required as a remedy. Houston Liahtino & Power Co. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 574 (1979). In order to conduct a Section 105(c) proceeding, it is not necessary to establish a violation of the antitrust laws. Any violation of the antitrust laws also meets the less rigorous standard of Section 105(c) which is inconsistency with the antitrust laws. South Texas, suora, 10 NRC at 570. NRC statutory responsibilities under Section 105(c) cannot be im-paired or limf*ed by a State agency. Soyth Texas, suora, 10 NRC at 577. The legislative history and language of the Public Utilities Regulatory Policies Act of 1978 clearly establish that the act was not intended to divest NRC of its antitrust jurisdiction. South Texas, suora, 10 NRC at 577. Once the U.S. Attorney General has withdrawn from a proceeding and permission has been granted to the remaining interveners to withdraw, O Q the Board no longer has jurisdiction to entertain an antitrust proceeding under the provisions of the Atomic Energy Act. Florida SEPTEMBER 1988 GENERAL MATTERS 9
5.6.3.1 Power. and Liaht Co. (St. Lucie Plant, Unit No. 2), LBP-82-21,15 NRC 639, 640-641 (1982). 6.3.1 Consideration of Antitrust Matters After the Construction Pensit Stage The NRC antitrust responsibility does not extend over the full life of a licensed facility but is limited to two procedural stages -- the construction permit stage and the operating license stage. This limitation on NRC jurisdiction extends to the Director of Nuclear Reactor Regulation as well as to the rest of the NRC. Florida Power & Liaht Co. (St. Lucie Plant, Unit 1; Turkey Point Plant, Units 3 & 4), ALAB-428, 6 NRC 221, 226-227 (1977). For reactors which have undergone antitrust review in connection with a construction , permit application pursuant to Section 105(c) of the Atomic l Energy Act, paragraph (c)(2) of that section governs the question of antitrust review at the operating license stage. Antitrust issues may only be pursued at this stage if a finding is made that the licensee's activities have sig-nificantly changed subsequent to the construction permit review. Houston Liahtina & Power Co. (South Texas Project, Units 1 & 2), CLI-77-13, 5 NRC 1303, 1310 (1977). Where a construction permit antitrust proceeding is under way, the antitrust provisions of the Atomic Energy Act effectively preclude the Commission from instituting a second antitrust hearing in conjunction with an operating license application for the plant. Florida Power and Liaht Co. (St. Lucie Plant, Unit No. 2), ALAB-661, 14 NRC 1117, 1122 (1981). Where, subsequent to issuance of a construction permit and to termination of the jurisdiction of the Licensing Board which considered the application, new contractual arrangements give rise to antitrust contentions, such contentions cannot be re-solved by the original Licensing Board. Houston Liahtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-381, 5 ; NRC 582 (1977). The Commission's regulations indicate that the new antitrust concerns should be raised at the operating license stage. The Commission Staff could also initiate show cause proceedings requiring the licensee to demonstrate why antitrust conditions should not be imposed in an amendment to ! the construction permit. & Where the petitioner who raises 4 the antitrust contentions is a co-licensee, 10 CFR S 50.90 l permits the petitioner to seek an amendment to the construc-tion permit which would impose antitrust considerations. E ; i p The NRC may facilitate operating license stage antitrust ! i review by waiving the requirements of 10 CFR S 50.30(d) and l } 9 50.34(b) (which require operating license applications to be j accompanied by the filing of an FSAR). This permits operating l license antitrust review at a much earlier stage prior to com- ; pletion of the FSAR. South Texas, CLI-77-13, suora, 5 NRC at l ) 1319. 1 SEPTEMBER 1988 GENERAL MATTERS 10 i __ _-. ._ l
~
. 6 6.3.1 ;
Congress did not invest the NRC with ongoing antitrust responsibility during the period subsequent to issuance of an operating license and the NRC's authority in this area terminates at that point. CLI-77-13, supra, 5 NRC at 1317. Congress did not envision for the NRC a broad, ongoing antitrust enforcement role but, rather, established specific procedures (and incentives) intended to tie antitrust review to the two-step licensing process. Florida Power & Liaht Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 945 (1978). Section 105 of the Atomic Energy Act and its implementing regulations contemplate that mandatory antitrust review be conducted early in the construction permit process. Florida Power & Licht Company (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). j Antitrust review might be conducted out-of-time if signi-ficant doubts were cast on the adequacy of the initial antitrust review. Florida Power & Liaht Company (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 945 (1978). Despite the fact that further antitrust review following issuance of a construction permit will usually await the operating license stage of review, a construction permit (N amendment may give rise to an additional antitrust review
- j' prior to the OL stage. An application for a construction permit amendment that would add new co-owners to a plant is within the scope of the phrase in Section 105c(1) of the Atomic Energy Act requiring antitrust review of "any license application." As such, it triggers an opportunity for intervention based on the antitrust aspects of adding new co-owners. To hold otherwise would subvert Congressional intent by insulating applicants coming in by way of amendment from antitrust investigation. Moreover, because a joint venture might raise antitrust problems that would not exist if the joint applicants were considered individually, the Licensing Board has jurisdiction to consider intervention petitions and antitrust issues filed in connection with a new application for joint ownership. Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-13, 7 NRC 583, 588 (1978).
A narrower, second antitrust review is to occur at the operating license stage, if and only if, "The Commission determines such review is advisable on the ground that
.significant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review by the Attorney General and the Commission..." in connection with the construction permit for the facility. South Carolina Electric and Gas Company (Virgil C. Summer Nuclear Station, p Unit 1), CLI-80-28, 11 NRC 817, 823 (1980).
i ( / The ultimate issue in the operating license stage antitrust review is the same as for the construction permit review: SEPTEMBER 1988 GENERAL MATTERS 11
9 6.3.2 would the contemplated license create a situation inconsistent , with the antitrust laws or the policies underlying those laws. South Carolina Electric and Gas Comnany (Virgil C. Summer Nuclear Station, Unit 1), CLI-80-28, 11 NRC 817, 824 (1980). To trigger antitrust review at the operating license stage, the significant changes specified by Section 105(c) of the Atomic Energy Act must (1) have occurred since the previous antitrust review of the licensee; (2) be reasonably attrib-utable to the licensee; and (3) have antitrust implications that would warrant Commission remedy. This requires an examination of (a) whether an antitrust review would be likely to conclude that the situation as changed has negative antitrust implications and (b) whether the Commission has available remedies. Summer, supra, at 824-825. Under Section 105c(2) of the Atomic Energy Act, a second formal antitrust review at the operating stage of a reactor licensing proceeding is the exception, not the rule. A petition for determination of significant changes is char-acterized as an informal adjudicatory process and is not governed by the Commission's Rules of Practice for formal procedures (10 CFR Part 2, Subpart G). Central Electric Power Cooperative. Inc. (Virgil C. Summer Nuclear Station, Unit No. 1), CLI-81-26, 14 NRC 787, 792 (1981). In determining whether significant changes have occurred which require referral of the matter to the Attorney General, the Commission must find: (1) that there is a factual basis for the determination; and (2) that the alleged changes are reasonably apparent. Summer, suora. Although the NRC regulations do not specify a period during which requests for a significant change determination will be timely, the relevant question in determining timeliness is whether the request has followed sufficiently promptly the operating license application. Central Electric Power Cooperative, supra, at 829. 6.3.2 Intervention in Antitrust Proceedings The Commission's regulations make clear that an antitrust intervention petition: (1) must first describe a situation inconsistent with the antitrust laws; (2) would be deficient if it consists of a 01scription of a situation inconsistent with the antitrust laws, however well pleaded, accompanied by a mere paraphrase of the statutory language alleging that the situation described therein would be created or maintained by j the activities under the license; and (3) must identify the specific relief sought and whether, how and the extent to . which the request fails to be satisfied by the license condi- ! tions proposed by the Attorney General. The most critical i requirement of an antitrust intervention petition is an ! SEPTEMBER 1988 GENERAL MATTERS 12
1 l: 4 I
,f 7t 9'6.3.2 ; 'q .
iV explanation of how the activities under the. license would " create or maintain an anticompetitive. situation. Florida Power and Liaht Co. (St. Lucie Plant, Unit 2), ALAB-665, 15' NRC 22, 29 (1982), Eithg, Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 574- t 575 (1975). 1 Although Section 105 of the Atomic Energy Act encourages petitioners to voice their antitrust claims early in the licensing process, reasonable' late _ requests for antitrust review are not' precluded so long as they are made concurrent with licensing. Licensing Boards must have discretion to consider individual claims in a way which does justice to all of the policies which underlie Section 105c and the strength of particular claims justifying late intervention. Florida Power & Liaht Company (St. Lucie Plant, Unit 2), CLI-78-12, i 7 NRC 939,-946 (1978). The criteria of 10 CFR 9 2.714 for late petitions are as appropriate for evaluation of late antitrust petitions as in health, safety and environmental licensing, but the Section 2.714 criteria should be more stringently applied to late antitrust petitions, particularly in assessing the good cause factor. Florida Power & Liaht Co. (St. Lucie Plant, Unit 2), p CLI-78-12, 7 NRC 939, 946 (1978). Late requests for antitrust review hearings may be enter- i tained in the period between the filing of an application for ! a construction permit -- the time when the advice of the Attorney Gereral is sought -- and its issuance. However, as the time for issuance of the construction permit draws closer, Licensing Boards should scrutinize more closely and carefully the petitioner's claims of good cause. Florida Power & Licht Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 946 (1978). Where an antitrust petition is so late that relief will divert from the licensee needed and difficult-to-replace power, the Licensing Board mity shape any relief granted to meet this problem. Florida Power & Licht Co. (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC 939, 948 (1978). Where a late petition for intervention is involved, the special factors set forth within 10 CFR 9 2.714(a)(1) must be balanced and applied before petitions may be granted; the test becomes increasingly vigorous as time passes. Of particular significance is the availability of other remedies for the late petitioner where remedies are available before the Federal Energy Regulating Commission and petitioner has not shown that the remedy is insufficient. f_lorida Power md Q Liaht Co. (St. Lucie Plant, Unit No. 2), LBP-81-28,14 NRC 333, 336, 338 (1981). SEPTEMBER 1988 GENERAL MATTERS 13
1 5 6.3.3 6.3.3 Discovery in Antitrust Proceedings j The Noerr-Penninaton doctrine will operate to immunize those ' legitimately petitioning the government, or exercising other First Amendment rights, from liability under the antitrust laws, even where the challenged activities were conducted for , purposes condemned by the antitrust laws. Florida Power & 1 Liaht Co. (St. Lucie Plant, Unit 2), LBP-79-4, 9 NRC 164,174 ) (1979). Material on applicant's activities designed to influence legislation and requested through discovery is relevant and may reasonably be calculated to lead to the discovery of admissible evidence, and therefore is not immune f rom discovery. The Noerr-Penninaton cases, on which applicant had ! based its argument, go to the substantive protection of the First Amendment and do not immunize litigants from discovery. Appropriate discovery into applicant's legislative activities must be permitted, and the information sought to be discovered may well be directly admissible as evidence. St. Lucie, supra, 9 NRC at 175. 6.3.3.1 Discovery Cutoff Dates for Antitrust Proceedings The imposition of the cutoff date for discovery is for the purpose of making a preliminary ruling about relevancy for discovery. The cutoff da'; is only a date after which, in the dimension of time, relevansy may be assumed for discovery purposes. Requests for information from before the cutoff date must show that the information requested is relevant in time to the situation to be created or maintained by a licensed activity. If the information sought is relevant, and not otherwise barred, it may be discovered, no matter how old, upon a reasonable showing. This is entirely consistent with 10 CFR S 2.740(b) and Rule 26(b) which are in turn consistent with the Manual for Complex Litiaation, Part 1, 6 4.30. Florida Power & Liaht Company (St. Lucie Plant, Unit No. 2), LBP-79-4, 9 NRC 164, 169-70 (1979). In antitrust proceedings, the relevant period for discovery must be determined by the circumstances of the alleged situation inconsistent with the antitrust laws, not the planning of the nuclear facility. St. Lucie, Luyra, 9 NRC at 168. i The standard for allowing discovery requests predating a set cutoff date is that there be a reasonable possibility of relevancy; it is not necessary to show relevancy plus good cause. St. Lucie, supra, 9 NRC at 172. O' SEPTEMBER 1988 GENERAL MATTERS 14
h} i V 6.4 Attorney fonduct 6 6.4.1 6.4.1 Practice Before Licensing / Appeal Boards 10 CFR S 2.713 contains general provisions with respect to representation by counsel in an adjudicatory proceeding, standards of conduct and suspension of attorneys. Counsel appearing before all NRC adjudicatory tribunals "have a manifest and iron-clad obligation of candor." This obligation includes the duty to call to the tribunal's attention facts of record which cast a different light-upon the substance of arguments- being advanced by counsel. Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-505, 8 NRC 527, 532 (1978). A. lawyer citing legal authority to an adjudicatory board in support of a position, with knowledge of other applicable authority adverse to that position, has a clear. professional obligation to inform the board of the existence of such ad-verse authority. Washinaton Public Power Supoly System (WPPSS Nuclear. Project No. 3), ALAB-747, 18 NRC 1167, 1174 n.21 (1983), citina, Rule 3.3(a)(3) of the ABA Model Rules of Professional Conduct (1983). Canon 7 of the ABA Code of Professional Responsibility, which k exhorts lawyers to represent their clients " zealously within the bounds of the law," and its Associated Ethical Considera-tions and Disciplinary Rules provide the standards by which attorneys should abide in-the preparation of testimony for NRC , proceedings. Consumers Power Co. (Midland Plant, Units I and 2), ALAB-691, 16 NRC 897, 916, 918 (1982). In judging the propriety of a lawyer's participation in the preparation of testimony of a witness, the key factor is not l who originated the words that comprise the testimony, but l Whether the witness can truthfully attest that the statement l is complete and accurate to the best of his or her knowledge.
- Midland, supra, 16 NRC at 918.
Counsel have an obligation to keep adjudicatory boards in-formed of the material facts which are relevant to issues pending before them. The Recents of the University of Californi_a (UCLA Research Reactor), LBP-84-22, 19 NRC 1383, 1401 (1984), citina, Midland, supra, 16 NRC at 910; Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387 (1982); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-458, 7 NRC 155,172 n.64 (1978). r A party's obligation to disclose material information extends ( to, and is often the responsibility of, counsel, especially in A litigation involving highly complex technology where many decisions regarding materiality of information can only be SEPTEMBER 1988 GENERAL MA N RS 15
)
9 6.4.1.1 made jointly by a party and its counsel. M , supra, 19 NRC at 1405. Counsel's obligations to disclose all relevant and material factual information to the Licensing Board under the Atomic Energy Act are not substantial < different from those laid out by the ABA's Model Rules of Professional Conduct. 1 In discharging his obligations, counsel may verify the accuracy of factual information with his client or verify the accuracy of the factual information himself. M, sn, 1 19 NRC at 1406-07. 6.4.1.1 Professional Decorum Before Licensing / Appeal Boards The Commission's Rules of Practice require parties and their , representatives to conduct themselves with honor, dignity, and i decorum as they should'before a court of law. Consumers Power l Co. (Midland Plant, Units 1 and 2), ALAB-601, 16 NRC 897, 916 (1982), citina, 10 CFR 2.713(a). A letter from an inter-venor's counsel to an applicant's counsel which is reasonably i perceived as a threat to seek criminal sanctions against the -j applicant's employees or to seek disciplinary action by the Bar against the applicant's attorneys in order to compel the applicant to negotiate the cancellation of its facility does not meet this standard. Houston Liahtina and Power Co. (South l Texas Project, Units 1 and 2), LBP-80-15, 23 NRC 595, 668-670 i (1986). I The Commission generally follows the American Bar Associa- l tion's Code of Professional Responsibility in judging lawyer conduct in NRC proceedings. Midland, supra, 16 NRC at 916, citina, Northern Indiana Public Service Co. (Bailly Generat- ) ing Station, Nuclear-1), ALAB-204, 7 AEC 835, 838 (1974). ' Gamesmanship and " sporting conduct" between or among lawyers and parties is not condoned in Nuclear Regulatory Commission proceedings. Midland, suora, 16 NRC at 919. Attorneys practicing before Licensing and Appeal Boards are to conduct themselves in a dignified and professional manner and are not to engage in name calling with respect to opposing counsel. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-204, 7 AEC 835 (1974). In this vein, Licensing Boards have a duty to regulate the course of hearings and the conduct of participants in the interest of insuring a fair, impartial, expeditious and orderly adjudicatory process,10 CFR S 2.718(e); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-417, 5 NRC 1442, 1445-46 (1977), and the Commission has the authority to disqualify an attorney or an entire law firm for unprofes-sional conduct, whatever its form. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-332, 3 NRC 785 (1976). SEPTEMBER 1988 GENERAL MATTERS 16
[ f 6.4.2 (/ The Code of Professional Responsibility considerably re-stricts the comments that counsel representing a party in an administrative hearing may make to the public. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592, 11 NRC 744, 750 (1980). Parties should not impugn one another's integrity without first submitting supporting evidence. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-82-5A, 15 NRC 216 (1982). 6.4.2 Disciplinary Matters re Attorneys The Commission has the authority to disqualify an attorney or an entire law firm for unprofessional conduct, whatever its form. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-332, 3 NRC 785 (1976). 10 CFR 9 2.713(c) lists various acts or omissions by an attorney which would justify his suspension from further participation in a proceeding. That Section also sets forth tM procedure to be followed by the presiding officer in issu,ng an order barring the attorney from participation. A Licensing Board may, if necessary for the orderly conduct of a proceeding, reprimand, censure or suspend from participation p) ( in the particular proceeding pending before it any party or w/ representative of a party who shall be guilty of disorderly, disruptive, or contemptuous conduct. Texas Utilities Generatina Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-87, 16 NRC 1195, 1201 (1982). An intervenor's generalized allegations of prejudice resulting from the submission of an alleged ex carte communication by applicant's counsel to a Board are insufficient to support a motion to disqualify counsel. The intervenor must demonstrate how specific Board rulings have been prejudiced by the submission of the ex parte communication. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501, 504-05 (1986). Petitions which raise questions about the ethics and reputa-tion of another member of the Bar should only be filed after careful research and deliberation. Moreover, although ill-feeling understandably results from any petition for discipli-nary action, retaliation in kind should not be the routine response. Cincinnati Gas and Electric Co. -(William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-36, 16 NRC 1512, 1514 n.1 (1982). A party's lack of resources does not excuse its baseless and q undocumented charges against the integrity and professional responsibility of counsel for an opposing party. Houston SEPTEMBER 1988 GENERAL MATTERS 17
S 6.4.2.1 Liahtino and Power Co. (South Texas Project, Units 1 and 2), LBP-85-45, 22 NRC 819, 828 (1985). The Commission has no interest in general matters of attorney discipline and chooses to focus instead on the , means necessary to keep its judicatory proceedings orderly and to avoid unnecessary delays. Zimmer, supra, 16 NRC at : 1514 n.1, citina, 45 Fed. Rea. 3594 (1980). I While the Commission has inherent supervisory power over all agency personnel'and proceedings, it is not necessarily I appr.,priate to bring any and all matters to the Commission in i the first instance. Under 10 CFR S 2.713, where a complaint I relates directly to a specified attorney's actions in a J proceeding before a Licensing Board, that complaint should be brought to the Board in the first instance if correction is necessary for the integrity of the proceedings. Zimmer, supra, 16 NRC at 1514, citina, 45 Fed. Rea. 3594 (1980). ' 6.4.2.1 Jurisdiction of Special Board re Attorney Discipline The Special Board appointed to consider the disqualification issue has the ultimate responsibility as to that decision. The Licensing Board before which the disqualification question was initially raised should determine only whether the allegations of misconduct state a case for disqualification and should refer the case to the Special Board if they do. ' After the Special Board's decision, the Licensing Board merely carries out the ministerial duty of entering an order in accordance with the Special Board's decision. Toledo Edison _CL. (Davis-Besse Nuclear Power Station), ALAB-332, 3 NRC 785 , (1976). 6.4.2.2 Procedures in Special Disqualification Hearings re Attorney Conduct The attorney or law firm accused of misconduct is entitled to a full hearing on the matter. Toledo Edison Co. (Davis-Besse Nuclear Power Station), ALAB-332, suora. The Commission's discovery rules are applicable to the proceeding and all parties have the right to present evidence and cross-examine witnesses. & The burden of proof is on the party moving for disqualification and the Special Board's decision must be based on a preponderance of the evidence. & i l In general, the doctrine of collateral estopoel applies j to disqualification proceedings. An earlier judicial q decision would be entitled to collateral estoopel effect 4 unless giving it effect would intrude upon the Commission's l ability to ensure the orderly and proper prosecution of l' its internal proceedings. Loledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-378, 5 NRC 557 (1977). As to costs incurred from an attorney SEPTEMBER 1988 GENERAL MATTERS 18
, 9 6.5.1 '~'
I discipline proceeding, there is no basis on which NRC can reimburse a private attorney for out-of-pocket expenses in connection with the termination and settlement of a special proceeding brought to investigate misconduct charges against a private attorney and NRC Staff attorneys. Consumers Power Co. (Midland Plant, Units 1 & 2), CLI-79-3, 9 NRC 107, 109 (1979). 6.4.2.3 Conflict of Interest Disqualification of an attorney or law firm is appropriate where the attorney formerly represented a party whose interests were adverse to his present client in a related matter. Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-332, typn. The aggrieved former client need not show that specific confidences were breached but only that there is a substantial relationship between the issues in the pending action and those in the prior represen-tation. 16 A perceived bias in an attorney's view of a proceeding is distinguishable from a situation where there is an attorney conflict of interest of a type recognized in law to compromise counsel's ability to represent his client, e.g., that he had o previously represented another party in the proceeding, or had / T a financial interest in common with another party, or the V like. Cincinnati Gas and Electric Co. (William H. Zimmer Nuclear Power Station, Unit No. 1), CLI-82-36, 16 NRC 1512, 1515 (1982). An attorney for a party in an NRC proceeding should dis-continue his or her representation of the client when it becomes apparent that the attorney will be called to testify as a necessary witness in the proceeding. However, an attorney will not be disqualified when it is shown that the client would suffer substantial hardship because of the distinctive value of the attorney. A party may waive the possible disqualification of its attorney if the opposing parties are not thereby prejudiced. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, 21 NRC 1707, 1717-20 (1985), citina, DR 5-101(B)(4), DR 5-102(A) and (B) of the Code of Professional Responsibility, and Model Rule 3.7(a)(3) of the ABA Model Rules of Profes-sional Conduct. 6.5 Communications Between Staff / Applicant /0ther Parties /Ad.iudicatory Bodies 6.5.1 Ex Parte Communications Rule /'N 10 CFR S 2.780 sets forth the applicable rules with respect to ex parte (off-the-record) communications involving NRC SEPTEMBER 1988 GENERAL MATTERS 19
I l _S 6.5.1 personnel who exercise quasi-judicial functions with res- J pect to the issuance, denial, amendment, transfer, renewal, I modification, suspension or revocation of a license or l permit. In general, the regulation prohibits ex carte com- j munications with Commissioners, members of their immediate 1 staffs, NRC officials and employees who advise the Commis-sioners in the exercise of their quasi-judicial functions, Licensing Board members and their immediate staffs and Appeal l Board members and their immediate staffs. l The ex parte rule proscribes litigants' discussing, off-the-record, matters in litigation with members of the adjudicatory l board. It does not apply to discussions between and among the parties, between the NRC Staff and the applicant or between the Staff, applicant, other litigants and third parties ; (including state officials and Federal agencies) not involved j in the proceeding. Public Service Co. of Indiana (Marble Hill l Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, ) 269 (1978). The NRC Staff does not advise the Commission or ; the Boards. The Staff is a separate and distinct entity that i participates as a party in a proceeding and may confer with ! the other parties. Philadelphia Electric Co. (Limerick 1 Generating Station, Units 1 and 2), ALAB-785, 20 NRC 848, 883 , n.161 (1984). The ex parte rule relates only to discussions of any sub-stantive matter at issue in a proceeding on the record. It does not apply to discussions of procedural matters, such as extensions of time for filing of affidavits. Consumers Power Co. (Big Rock Point Plant), LBP-82-8, 15 NRC 299, 336 (1982). h n, Metropolitan Edison Co. (Three Mile Island Nuclear i Station, Unit 1),CLI-83-5,17NRC331,332(1983), citina, 10 l CFR 6 2.780(a). Nothing in the Commission's ex parte rule pursuant to 10 CFR S 2.780 precludes conversations among parties, none of whom is a decisionmaker in the licensing proceeding. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680, 16 NRC 127, 144 (1982). See also Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 378 ( 983), citina, 10 CFR 9 2.780; San Onofre, suora, 16 NRC at 144. Generic discussions of general health and safety problems and responsibilities of the Commission not arising from or directly related to matters in adjudication are not ex part_q. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-3, 17 NRC 72, 74 (1983), citina, 10 CFR 9 2.780(d). Regarding a prohibition on ex parte contacts, the ex carte rule is not properly invoked where in an enforcement matter the licensee is complying with Staff's order and has not SEPTEMBER 1988 GENERAL MATTERS 20
I-N 6.5.2 j 'D sought a hearing, nor is a petition for an enforcement' action sufficient to invoke the provisions of 10 CFR 6 2.780. Cincinnati Gas and Electric Co. (William H.' Zimmer Nuclear Power Station, Unit No. 1), CLI-83-4, 17 NRC 75, 76 (1983). The Staff's communication of the results of its reviews, through public filings served on all parties and the ad-judicatory boards, does not constitute an ex oarte communi-cation. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 197 n.39 (1983), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985). In determining whether the submission of an ex oarte com-munication has so tainted the decisionmaking process as to require vacating a Board's decision, the Commission has evaluated the following factors: the gravity of the ex oarte communication; whether the contacts could have influenced the agency's decision; whether the party making the contacts benefited from the Board's final decision; whether the con-tents of the communication were known to the other parties to the proceeding; and whether vacating the Board's decision would serve a useful purpose. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), CLI-86-18, 24 NRC 501, 506 (1986), citina, Professional Air Traffic
- p. Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 564-565 (D.C. Cir. 1982).
5.5.2 Telephone Conference Calls A conference call between an adjudicatory board and some but not all of the parties should be avoided except in the case of the most dire necessity. Such calls must be avoided even where no substantive matters are to be discussed and the rule precluding ex parte communications is, therefore, not technically violated. Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-313, 3 NRC 94 (1976). In general, where substantive matters are to be considered in the conference call, all parties must be on the line. For example, when a prehearing conference is conducted via telephone, the Licensing Board must insure that representa-tives of all parties concerned are on the line unless that representation has been waived. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-334, 3 NRC 809 (1976). Promptly after any prehearing conference carried on via telephone during which rulings governing the conduct of future proceedings have been made, Licensing Boards must draft and enter written orders confirming those rulings.
.IL ; 10 CFR 6 2.752(c).
Where a party informs an adjudicatory board that it is not interested in a matter to be discussed in a conference call SEPTEMBER 1988 GENERAL MATTERS 21
i 9 6.5.3 between the board and the other litigants, that party cannot later complain that it was not consulted or included in the conference call. Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-493, 8 NRC 253, 269 n.63 (1978). 6.5.3 Staff-Applicant Cosaunications 6.5.3.1 Staff Review of Application A prospective applicant may confer informally with the Staff prior to filing its application. 10 CFR 99 2.101(a)(1), 2.102(a). A Licensing Board has held that the Staff may continue to con-fer privately with the applicant even after a hearing has been noticed. In addition, the Board ruled that, while a Licensing Board has supervisory authority over Staff actions that are part of the hearing process, it has no jurisdiction to super-vise the Staff's review process and, as such, cannot order the Staff and applicant to hold their private discussions in the vicinity of the site or to provide transcripts of such discus-sions. Northeast Nuclear Enerav Co. (Montague Nuclear Power Station, Units 1 & 2), LBP-75-19, 1 NRC 436 (1975). With certain exceptions, all meetings conducted by the NRC technical Staff as part of its review of a particular domestic license or permit application, including applications for amendments to a license or permit, are to be open to atten-dance by all parties or petitioners for leave to intervene in the case. Lite Domestic License Applications, Open Meetings and Statement of NRC Staff Policy. 43 Fed. Rea. 28058 (June 28,1978). In the absence of a demonstration that meetings were de-liberately being scheduled with a view to limiting the ability of interveners' representatives to attend, the imposition of hard and fast rules on scheduling and meeting location would needlessly impair the Staff's ability to obtain information. The Staff should regard the interveners' opportunity to attend as one of the factors to be taken into account in making its decisions on the location of such meetings. Fairness demands that all parties be informed of the scheduling of such meetings at the same time. Can-solidated Edison Co. of N.Y. (Indian Point, Unit 2); Power Authority of the State of N.Y. (Indian Point, Unit 3), CLI-82-41, 16 NRC 1721, 1722-23 (1982). 6.5.3.2 Staff-Applicant Correspondence All Staff-applicant correspondence is required to be served on all parties to a proceeding and such service must be continued through the entire judicial review process, at MARCH 1987 GENERAL MATTERS 22 _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ i
. 6 6.5.4.1
" ) least with respect to those parties participating in the review and those issues which are the subject of the review.
Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), ALAB-184, 7 AEC 229, 237 n.9 (1974); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 183 (1974). Note that this requirement of service on all parties of documents exchanged between applicant and Staff in the review process does not arise from 10 CFR 9 2.701(b) which separately requires that all documents offered for filing in adjudica-tions be served on all parties. Carolina Power & Liaht Co. (Shenron Harris Nuclear Power Plant, Units 1 and 2), LBP Il9A, 16 NRC 2069, 2112 (1982). 6.5.4 Notice of Relevant Significant Developments 6.5.4.1 Duty to Inform Adjudicatory Board of Significant Develop-ments The NRC Staff has an obligation to lay all relevant materials before the Board to enable it to adequately dispose of the issues before it. Consolidated Edison Co. of N.Y. (Indian Point Station, Units 1, 2 & 3), CL1-77-2, 5 NRC 13 (1977); Louisiana Power ana Liaht Co. (Waterford Steam Electric
,m Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 n.18 (1983),
J citina, Indian Point, supra, 5 NRC at 15. See aenerally V Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units l 1, 2 and 3), ALAB-677, 15 NRC 1387 (1982); Allied-General Nuclear Services (Barnwell Nuclear fuel Plant Separation Facility), ALAB-296, 2 NRC 671, 680 (1975). Moreover, the Staff is obligated to make every effort promptly to report newly discovered important information or significant developments related to a proceeding to the presiding Licensing Board and the parties. This duty to report arises immediately upon the Staff's discovery of the information, and the Staff is not to delay in reporting until it has completed its own evaluation of the matter. Viroinia Electric & Power Co. (North Anna Power Station, Units 1 & 2), CLI-76-22, 4 NRC 480, 491 n.ll (1976). This same obligation extends to all parties, each of whom has an affirmative duty to keep Boards advised of significant changes and developments relevant to the proceeding. Georaia Power Co. (Alvin W. Vogtle Nuclear Plant Units 1 & 2), ALAB-291, 2 NRC 404, 408 (1975); Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 625-626 i (1973); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1357 (1984); General Public Utilities Nuclear Coro. (Three Mile Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 560 (1986); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), O) ( v LBP-86-15, 23 NRC 595, 623-625 (1986). MARCH 1987 GENERAL MATTERS 23
Parties in Commission proceedings have an absolute obligation to alert adjudicatory bodies in a timely fashion of material changes in evidence regarding: (1) new information that is , relevant and material to the matter being adjudicated; (2) l modifications and rescissions of important evidentiary submissions; and (3) outdated or incorrect information on which the Board may rely. Similarly, internal Staff proce-dures must ensure that Staff counsel be fully appraised of new developments. Tennessee Vallev Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387, 1388, j 1394 (1982), citina, Dyke Power Co. (Catawba Nuclear Station, j Units 1 and 2), ALAB-355, 4 NRC 397, 406 n.26 (1976); Georaia j Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 and 2), ! ALAB-291, 2 NRC 404, 411 (1975); and Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 (1973); Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-752,18 NRC 1318,1320 (1983); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-765, 19 NRC 645, 656 (1984); l Philadelohig Electric Co. (Limerick Generating Station, Units l 1 and 2), ALAB-785, 20 NRC 848, 884 n.163 (1984). However, the Commission has recently discussed the conflict between the Staff's duty to disclose information to the boards and other parties, and the need to protect such information. , The Commission noted that, pursuant to its Policy Statement on Investigations, Inspections, and Adjudicatory Proceedings, 49 Fed. Rea. 36,032 (Sept. 13, 1984), the Staff or the Office of Investigations could provide to a board, or a board could request, for ex parte in camera presentation, information i concerning an inspector or investigation when the information is material and relevant to any issue in controversy in the proceeding. The Commission held that the Appeal Board did not have the authority to request information from the Office of Investigations for use in reviewing a motion to reopen where the motion to reopen concerned previously uncontested issues and not " issues in controversy in a proceeding". Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 7 (1986). See Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-829, 23 NRC 55, 58 & n.1 (1986). i All parties, including the Staff, are obliged to bring any significant new information to the boards' attention. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 197 n.39 (1983), rev'd in part on other arounds, CLI-85-2, 21 NRC 282 (1985), citina, Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387, 1394 (1982); Union Electric Co. (Callaway Plant, Unit 1), ALAB-750,18 NRC 1205, 1210 n.Il (1983). MARCH 1987 GENERAL MATTERS 24 L__-___--____
q i i ( - f f 6.5.4.1 i Parties and counsel must adhere to the highest standards in i disclosing all relevant factual information to the Licensing l Board. Material facts must be affirmatively disclosed. If 4 counsel have any doubt whether they have a duty to disclose certain facts, they must disclose. An externality such as a threatened lawsuit does not relieve a party of its duty to disclose relevant information and its other duties to the Board. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-81-63, 14 NRC 1768, 1778, 1795 (1981); Union Electric Co. l (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1210 n.11 (1983); Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1092 n.8 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11, 21 NRC 609, 624 n.9 (1985), rev'd and remanded on other arounds, CLI-86-8, 23 NRC 241 (1986). If a licensee or applicant has a reasonable doubt concerning the materiality of information in relation to its Board notification obligation or duties under section 186 of the Atomic Energy Act, 42 U.S.C. 6 2236a, the information should be disclosed for the Board to decide its true worth. Metropolitan Edison Co. (Three Mile Island Nuclear Station, N Unit 1), ALAB-774, 19 NRC 1350, 1358 (1984), citina, McGuire, f~j t supra, 6 AEC at 625 n.15; and Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897, 914 (1982), review declined, CLI-83-2, 17 NRC 69 (1983); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-85-6, 21 NRC 447, 461 (1985); General Public Utilities Nuclear Cor_p_,. (Three Mile Island Nuclear Station, Unit 1), LBP-86-14, 23 NRC 553, 560 (1986). Before submitting information to the Board pursuant to its notification obligations, a licensee or applicant is entitled to a reasonable period of time for internal review of the . documents under consideration. However, an obvious exception exists for information that could have an immediate effect on matters currently being pursued at hearing, or that disclose possible serious safety or environmental problems requiring immediate attention. An applicant or licensee is obliged to report the latter to the NRC Staff without delay in accordance with numerous regulatory requirements. _S_m ggt,., 10 CFR
! 50.72. Three Mile Island, supra 19 NRC at 1359 n.8. !
The routine submittal of informational copies of technical materials to a Board is not sufficient to fulfill a party's obligction to notify the Board of material changes in sig- : nificant matters relevant to the proceeding. Lona Island l Liahtina C h (Shoreham Naclear Power Station, Unit 1), LBP-
/ \ 84-53, 20 NRC 1531, 1539 n.23 (1984).
sb MARCH 1987 GENERAL MATTERS 25
f. S 6.6 If a Board notification is to serve its intended purpose, it must contain an exposition adequate to allow a ready apprecia-tion of (1) the precise nature of the addressed issue and (2) the extent to which the issue might have a bearing upon the particular facility before the Board. Louisiana Power and Licht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1114 n.59 (1983), citina, Virainia C actric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALnB-551, 9 NRC 704, 710 (1979); Louisiana Power and Licht CLc(Waterford Steam Electric Station, Unit 3), ALAB-786, 20 NRC 1087, 1092 n.8 (1984). The untimely provision of significant information is an important measure of a licensee's character, particularly if it is found to constitute a material false statement. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-738, 18 NRC 177, 198 (1983), rev'd in oart on other arounds, CLI-85-2, 21 NRC 282 (1985). An applicant's failure to notify a board of significant information may reflect a deficiency in character or compet-ence if such failure is a deliberate breach of a clearly defined duty, a pattern of conduct to that effect, or an indication of bad faith. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-86-15, 23 NRC 595, 625-626 (1986). 6.5 Early Site Review Procedures Part 2 of the Commission's regulations has been amended to provide for adjudicatory early site reviews. See 10 CFR 6 2.101(a-1), ss 2.600-2.606. The early site review procedures, which differ from those set forth in Appendix Q to 10 CFR Part 50, allow for the early issuance of a partial initial decision on site suitability matters. Early site review regulations provide for a detailed review of site suitability matters by the Staff, an adjudicatory hearing directed toward the site suitability issues proposed by the applicant, and the issuance by a Licensing Board of an early partial decision on site suitability issues. A partial decision on site suitability is not a sufficient basis for the issuance of a construction permit or for a limited work authorization. Neither of these steps can be taken without further action, which includes the full review required by Section 102(2) of the National Environmental Policy Act of 1969, as amended (NEPA), and by 10 CFR Part 51, which implements NEPA. Philadelphia Electric Company (Fulton Generating Station, Units I l and 2), LBP-79-23, 10 NRC 220, 223 (1979). i The early partial decision on site suitability does not authorize the applicant to do anyth.ing; it does provide applicant with in-formation of value to applicant in its decision to either abandon l MARCH 1987 GENERAL MATTERS 26 1 l _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _
<w -
6 6.7.1
- \
(_) the site or proceed with plans for the design, construction, and operation of a specific nuclear power plant at that site. Imple-mentation of any such plans is dependent upon further review by the Staff and approval by a Licensing Board. Fulton, suora. 6.6.1 Scope of Early Site Review The early site review is not a " major Federal action sig-nificantly affecting the human environment" such as would require a full NEPA review of the entire proposed project. Commonwealth Edison Company (Carrol County Site), ALAB-601, 12 NRC 18, 25 (1980). The scope of the early site review is properly limited to the issues specified in the notice of hearing subject to the limits of NEPA, Section 102(2)(c), 42 U.S.C 6 4332(2)(c). Carrol County Site, suora,12 NRC at 26. 6.7 Endanaered SDecies Act 6.7.1 Required Findings re Endangered Species Act Under Sectiot 7 of the Endangered Species Act, Federal agencies, in consultation with the Department of Interior, o are to take such action as necessary to insure that actions ( authorized by them do not " jeopardize the continued existence C of such endangered species." Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, IB & 2B), ALAB-463, 7 NRC 341, 360 (1978). The Federal agency is to obtain input from the Department of Interior and then make its decision. A Licensing Board may not approve relevant action until Interior has been consulted. Approval by a Licensing Board which is conditioned on later approval by the Department of Interior does not fulfill the requirements of the Endangered Species Act. "To give advance approval to whatever Interior might decide is to abdicate the Commission's duty under the Act to make its own fully informed decision." Jd 7 NRC at 363-364. A Licensing Board's finding with regard to the Endangered Species Act aspects of a construction permit application should not be restricted to a consideration of the parti-cular points raised by contentions. Once informed that an endangered species lives in the vicinity of the proposed plant, the Licensing Board is obligated to examine all possible adverse effects upon the species which might result from construction or operation of the plant and to make findings with respect to them. Hartsville, suora, 7 NRC at 361. In this vein, releases from the plant which will not produce significant adverse effects on endangered species clearly "will not jeopardize their continued exis-
/3 '
tence." The Act does not require a finding that there (") will not be any adverse effects. " Insignificant effects are not proscribed by the Statute." Hartsville, supra, MARCH 1987 GENERAL MATTERS 27
9 6.7.2 ' 7 NRC at 360. Likewise, if there are no significant adverse effects on an endangered species, there will be no " harm" to the species under Section 9 of the Act. E at 366-367, n.114. 6.7.2 Degree of Proof Needed re Endangered Species Act The finding that the proposed action will not jeopardize the continued existence of an endangered species must be estab-lished by a preponderance of the evidence rather than by clear and convincing proof. Tennessee Valley Authority (Hartsville i Nuclear Plant, Units 1A, 2A,1B & 28), ALAB-463, 7 NRC 341, 360 (1978). 6.8 Financial Qualifications Section 182(a) of the Atomic Energy Act of 1954 does not impose any financial qualifications requirement on license applicants; it merely authorizes the Commission to imposa such financial requirements as it may deem appropriate. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 8, 9 (1978). The relevant implementing regulation is 10 CFR 9 50.33(f) which is amplified by Appendix C to 10 CFR Part 50. & The " reasonable assurance" requirement set forth in the regulation was adopted to assure that financial conditions did not compromise the applicant's clear self-interest in safety. It contemplates actual inquiry into the applicant's financial qualifications. It is not enough that the applicant is a regulated public utility. A
" reasonable assurance" means that the applicant must have. a reason-able financing plan in light of relevant circumstances. However, given the history of the present rule and the relatively modest implementing requirements in Appendix C, it does not mean a demon-stration of near certainty that an applicant will never be pressed for funds during the course of construction. Seabrook, supra, 7 NRC at 18.
Recent amendments to 10 CFR @ 50.33(f) have modified the require-ments for financial qualifications review for electric utilities. Effective March 31, 1982, the Commission eliminated entirely the requirements for financial qualifications review for, inter alia, electric utilities applying for construction permits and operating licenses. Consumers Power Co. (Hidland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 594 (1982), citina, 47 fg h Eggi 13750 (March 31, 1982). Illinois Power Co. (Clinton Power Station, Unit No. 1), LBP-82-103, 16 NRC 1603, 1618 (1982), citina, 10 CFR 6 2.104(c)(4); 47 Fed. Rea 13753 (March 31, 1982); Hauston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-87-37, 18 NRC 52, 56 (1983). However, the March 31, 1982 amendment was successfully challenged in court and was remanded to the Commission. Georaia Power Co. (Vogtle Nuclear Plant, Units 1 and 2), LBP-84-35, 20 NRC 887, 895 (1984), MARCH 1987 GENERAL MATTERS 28
+
77 9 6.9.1 1 V citina, New Enaland Coalition on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir. 1984). Ou September 12, 1984, the Commission issued new amendmer.ts to 10 CFR 9 50.33(f) which:
- 1) reinstated financial qualifications review for electric utilities which apply for facility construction permits; and
- 2) eliminated financial qualifications review for electric utilities which apply for operating licenses, if the utility is a regulated public utility or is authorized to set its own rates.
Egg 49 Fed. Rec. 35747 (September 12,1984), as corrected, 49 Egi. Egg 2 36631 (September 19,1984); Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), ALAB-784, 20 NRC 845, 847 (1984); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 84 & n.126 (1985). Unusual and compelling circumstances are needed to warrant a waiver of the financial qualifications rule. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-83-37, 18 NRC 52, 57 (1983), r3 6.9 Generic Issues A generic issue may be defined as one which is applicable to the industry as a whole (Lgt, GESM0) or to all reactors or facilities or to all reactors or facilities of a certain type. Current regulations do not deal specifically with generic issues or the manner in which they are to be addressed. 6.9.1 Consideration of Generic Issues in Licensing Proceedings As a general rule, a true generic issue should not be considered in individual licensing proceedings but should be { handled in rulemaking. Eqgi g g , Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-128, 6 AEC 399, 400, 401 (1973); Lona Island Liahtino Co. (Shoreham Nuclear j Power Station), ALAB-99, 6 AEC 53, 55-56 (1973). The Commission had indicated at least that generic safety questions should be resolved in rulemaking proceedings whenever possible. See Vermont Yankee Nuclear Power Coro. (Vermont Yankee Nuclear Power Station), CLI-74-40, 8 AEC 809, p 814-815, clarified, CLI-74-43, 8 AEC 826 (1974). An appellate court has indicated that generic proceedings "are a more i efficient forum in which to develop issues without needless l repetition and potential for delay." Natural Resources Defense Council v. NRC, 547 F.2d 633 (D.C. Cir.1976), rev'<l and remanded, 435 U.S. 519 (1978), on remand, 685 F.2d 459 (D.C. Cir. 1982), rev'd, 462 U.S. 87 (1983). To the same , O) ( effect, igg Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A,18 & 28), ALAB-380, 5 NRC 572 (1977). i l MARCH 1987 GENERAL MATTERS 29
U 9 6.9.1 Nevertheless, it appears that generic issues may properly be I considered in individual adjudicatory proceedings in certain circumstances. For example, an Appeal Board has held that Licensing Boards should not accept, in individual licensing cases, any contentions which are or are about to become the subject of general rulemaking but apparently may accept so-called
" generic issues" which are not (or are not about to become) the subjects of rulemaking. Potomac Electric Power Co.
(Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79 (1974); Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), LBP-86-8, 23 NRC 182, 185-86 (1986). Moreover, if an issue is already.the subject of regulations, the publication of new proposed rules does not necessarily suspend the effectiveness of the existing rules. Contentions under these circumstances need not be dismissed unless the Commission has specifically directed that they be dismissed during pendency of the'rulemaking procedure. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-1A,15 NRC 43, 45 (1982); South Texas, suora, 23 NRC at 186. The basic criterion is safety and whether there is a substantial safety reason for litigat-ing the generic issue as the rulemaking progresses. In some cases, such litigation probably should be allowed if it appears that the facility in question may be licensed to operate before the rulemaking can be completed. In such a case, litigation may be necessary as a predicato for required safety findings. In other cases, however, it may become apparent that the rulemaking will be completed well before the j facility can be licensed to operate. In that kind of case l there would normally be no safety justification for litigating l the generic issues, and strong resource management reasons not i to litigate. Duke Power Co. (Catawba Nuclear Station, Units j 1 and 2), LBP-82-107A, 16 NRC 1791, 1809 (1982). j In an operating license proceeding, where a hearing is to be held to consider other issues, Licensing Boards are enjoined, in the absence of issues raised by a party, to determine wl ether the Staff's resolution of various generic safety imues applicable to the reactor in question is "'at least ! plausible and...if proven to be of substance ... adequate to ! justify operation.'" Pennsylvania Power & Liaht Company I (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, , 9 NRC 291, 311 (1979). See Houston Liahtina and Power Co, ' (South Texas Project, Units 1 and 2), LBP-86-5, 23 NRC 89, 90 (1986). A Licensing Board must refrain from scrutinizing the sub-stance of particular explanations in the Safety Evaluation Report (SER) justifying operation of a plant prior to the resolution of an unresolved generic safety issue. The MARCH 1987 GENERAL MATTERS 30
)
l L i lq 9 6.9.2.1 { i ; {' E/ Board should only look to see whether the generic issue has been taken into account in a manner that is at least plausible and that, if proven to be of substance, would be adequate to justify operation. Louisiana Power aM Liaht Co. (Waterford Steam Electric Station, Unit 3), LBP-82-100,16 NRC 1550,1559 (1982), citina, Viroinia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC 245 (1978). As a matter of policy, most evidentiary hearings in NRC proceedings are conducted in the general vicinity of the site of the facility involved. In generic matters, however, when the hearing encompasses distinct, geographically separated facilities and no relationship exists between the highly technical questions to be heard and the particular features of those facilities or their sites, the governing consideration in determining the place of hearing should be the convenience of the participants in the hearing. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-566, 10 NRC 527, 530-31 (1979). A Licensing Board does not have to apply the same degree of scrutiny to uncontested generic unresolved safety issues as is applied to issues subject to the adversarial process. A N Licensing Board is required to examine the Staff's presen-(~'j tation in the SER on such uncontested issues to determine whether a basis is provided to permit operation of the facility pending resolution of those issues. A Licensing Board need not make formal findings of fact on these matters as if they were contested issues, but it is required to determine that the relevant generic unresolved safety issues do not raise a " serious safety, environmental, or common defense and security matter" such as to require exercise of the Board's authority under 10 CFR 9 2.760a to raise and decide such issues sua sponte. [gna Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445, 465 (1983), citina, Louisiana Power and Liaht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1110-13 (1983). 6.9.2 Effect of Unresolved Generic Issues 6.9.2.1 Effect of Unresolved Generic Issues in Construction Permit Proceedings The existence of an unresolved generic safety question does not necessarily require withholding of construction permits since the Commission has available to it the provisions of 10 CFR 9 50.109 for backfitting and the procedures of 10 CFR n Part 2, Subpart B for imposing new requirements or conditions. j l j Georaia Power Co. (Alvin W. Vogtle Nuclear Plant, Units 1 & V 2), ALAB-291, 2 NRC 404 (1975). l MARCH 1987 GENERAL MATTERS 31
9 6.9.2.2 While unresolved generic issues might not preclude issuance of a construction permit, those generic issues applicable to the facility in question must be considered and information must be presented on whether (1) the problem has already been resolved for the reactor under study, (2) there is a reason-able basis for concluding that a satisfactory solution will be obtained before the reactor is put into operation, or (3) the problem will have no safety implications until after several years of reactor operation, and if there is no resolution by then, alternate means will be available to assure that continued operation, if permitted, will not pose an undue risk. Gulf States Utilities Co. (River Bend Station, Units 1
& 2), ALAB-444, 6 NRC 760, 775 (1977). See also Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601, 614 (1982).
6.9.2.2 Effect of Unresolved Generic Issues in Operating License Proceedings An unresolved safety issue cannot be disregarded in indi-vidual licensing proceedings merely because the i.ssue also has generic applicability; rather, for an applicant to succeed, there must be some explanation why construction or operation can proceed although an overall solution has not been found. Where issuance of an operating license is involved, the justification for allowing operation may be more difficult to come by than would be the case where a construction permit is involved. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245, 248 (1978). Explanations of why an operating license should be issued despite the existence of unresolved generic safety issues should appear in the Safety Evaluation Report. Virainia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 & 2), ALAB-491, 8 NRC 245, 249 (1978). Where generic unresolved safety issues are involved in an ) operating license proceeding, for an application to succeed < there must be some explanation why the operation can proceed even though an overall solution has not been found. LQng , Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), i LBP-83-57, 18 NRC 445, 472 (1983), Af_fD med, ALAB-788, 20 NRC 1102, 1135 n.187 (1984). A plant will be allowed to operate pending resolution of the unresolved issues when there is c reasonable assurance that the facility can be operated without undue risk to the health and safety of the public. Lgng Island Liahtina CL (Shoreham Nuclear Power Station, Unit 1), l LBP-83-57, 18 NRC 445, 472 (1983), affirmed, ALAB-788, 20 NRC j e! 1102, 1135 n.187 (1984). MARCH 1987 GENERAL MATTERS 32 l
l
- i. 9 6.10
) 6.10 Insoection and Enforcement The Commission has both the duty and the authority to make such investigations and inspections as it deems necessary to protect the -
public health and safety. Union Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366, 374 (1978). Because the atomic energy industry is a pervasively regulated in- . dustry, lawful inspections of licensee's activities are within the warrantless search exception for a " closely regulated industry" ; delineated by the Supreme Court in Marshall v. Barlow's. Inc., 436 l U.S. 307 (1978); Union Electric Co. (Callaway Plant, Units 1 & 2), ' LBP-78-31, 8 NRC 366, 377 (1978). In addition, a licensee's submission to all applicable NRC regulations constitutes advance consent to lawful inspections, and therefore, no warrant is required for such inspections. Callaway, supra, 8 NRC at 377. Proposed investigation of the discharge by a licensee's contractor of a worker who reported alleged construction problems to the Commission was within the Commission's statutory and regulatory authority to assure public health and safety. Union Electric Co. (Callaway Plant, Units 1 & 2), LBP-78-31, 8 NRC 366, 376 (1978). The Commission should not defer such an inquiry into the discharge of a worker under a proper exercise of its authority to investigate ;
,m safety related matters merely because such investigation may touch '
l (j) on matters that are the subject of a grievance proceeding between the licensee and the worker. Callaway, supra, 8 NRC at 378. Refusal by a licensee and contractor to permit a lawful Staff investigation deemed necessary to assure public health and safety is l serious enough to warrant the drastic remedy of permit suspension j pending submission to investigation, since the refusal interferes with the Commission's duty to assure public health and safety. Callaway, suora, 8 NRC at 378. Inspections of licensed activities during company-scheduled working I hours are reasonable per se. Commission inspections may not be I limited to " office hours." ~ In re Radiation Technoloav. Inc., ALAB-567, 10 NRC 533, 540 (1979). A search warrant is not needed for inspections of licensed acti- 4 vities. . 1 at 538-540. The Executive Director of Operations is authorized by the Commission to issue subpoenas pursuant to Section 161c of the Atomic Energy Act where necessary or appropriate for the conduct of inspections or investigations. Houston Liahtina and Power Co. (South Texas Project, Units 1 and 2), CLI-87-8, 26 NRC 6, 9 (1987). The NRC Staff's Office of Inspection and Enforcement does inspect p construction activities and reports. Where weaknesses or errors t j which substantially affect safety are detected, the Staff requires v DECEMBER 1987 GENERAL MATTERS 33
9 6.10.1 the applicant-to take appropriate action. Deliberate or careless failure of applicants to adhere to the program is the basis for the imposition of penalties. Illinois Power Co. (Clinton Power Station, Unit No. 1), LBP-82-103, 16 NRC 1003, 1614 (1982). 6.10.1 Enforecaent Actions
"[A] licensee may not avoid responsibility for violations
.because its employees or agents failed to comply with the Commission's rules, regulations or license conditions."
Pittsburah-Des Moines Steel Company, ALJ-78-3, 8 NRC 649, 651 (1978). The Director of Inspection and Enforcement, subject to re-quirements that he give license ; written notice of specific violations and consider their responses in deciding whether penalties are warranted, may prefer charges, may demand the payment of penalties, and may agree to compro.nise penalty cases without formal litigation. Additionally, the Director may consult with his Staff privately about the course to be taken. In re Radiation Technoloav. Inc., ALAB-567,10 NRC 533, 537 (1979). The ability of the Director of Inspection and Enforcement to proceed against a licensee by issuing an order imposing civil penalties is not a denial of due process because the licensee was not able to cross-examine the Director to determine he had - not been improperly influenced by Staff. The demands of due process do not require a hearing at the initial siage or at any particular point or at more than one point in an admini-strative proceeding so long as the requisite hearing is held before the final order becomes effective. In re Radiation Technoloav. Inc., ALAB-567,10 NRC 533, 536-538 (1979). A licensee is normally afforded the opportunity to challenge l an enforcement action in a public hearing prior to the time an enforcement action takes effect. Eq.sumers n Power Co. (Midland Plant, Units 1 and 2), CLI-73-38, 6 AEC 1082,1083 (1973); Metropolitan Edisen Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118, 1123 (1985). However, the Commission is empowered to make a shutdown order immediately effective where such action is required by the public health, safety, or public interest. Three Mile Island, suora, 21 NRC at 1123-24 n.2. _S_g_q 10 CFR 9 2.202(f), implementing 5 U.S.C. 6 558(c). The Commission is obligated under the law to lift the effectiveness of an immediately effective shutdown order once the concerns which brought about the order have been adequately resolved. Three Mile Island, suora, 21 NRC at 1124. h e.a. , Pan American Airways v. C. A.B. , 684 F.2d 31 (D.C. Cir.1982); Northwest Airlines v. C. A.B., 539 F.2d 846 (D.C. Cir. 1976); Air Line Pilots Ass'n.. SEPTEMBER 1988 GENERAL MATTERS 34
ce 9 6.10.1.1 3 ) International v. C. A.B., 458 F.2d 846 (D.C. Cir.1972), cert. denied, 420 U.S. 972 (1975). This holds true even where Licensing and Appeal Boards' deliberations and:deci . sions as'to resumption of operations:are.pending,.provided the issues before the Board do not implicate the. public health and safety. Three Mile Island, supra, 21 NRC at.1149. Where a Board attaches license conditions in.an enforcement proceeding, such action does not convert the enforcement E proceeding into a license amendment proceeding. Once the Commission establishes a formal adjudicatory hearing in an enforcement case, it need not grant separate hearings on any license conditions that are imposed.as a' direct consequence of that enforcement hearing. Metropolitan Edison-Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-9, 21 NRC 1118, 1148 (1985). Under 10 CFR 5 2.202, the NRC Staff is empowered to issue an order to show cause why enforcement action should not be taken when it believes that modification or suspension ~of a license, or other such enforcement action, is warranted. Under 10 CFR 6.2.206, members of the public may request the NRC Staff to issue such an order to show cause. Consolidated Edison Co. of-New York (Indian Point, Unit 2) and. Power Authority of the 73 State of New York (Indian Point, Unit 3), CL1-83-18, 17 NRC
/ 1006, 1009 (1983).
Allegations about financial difficulties at an operating facility are not by themselves a sufficient basis for action to restrict operations. On the other hand, allegations that defects in safety practices have in fact occurred or are imminent would form a possible basis for enforcement action, whether or not the root cause of the fault was financial. Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), CLI-83-21, 18 NRC 157, 159-60 (1983). A Director does not abuse his or her discretion by refusing to take enforcement action based on mere speculation that financial pressures might in some unspecified way undermine the safety of a facility's operation. Maine Yankee Atomic Power CL. (Maine Yankee Atomic Power Station), CLI-83-21, 18 NRC 157, 160 (1983). 6.10.1.1 Civil Penalties Section 234 of the Atomic Energy Act directs the Commission to afford an opportunity for a hearing to a licensee to whom a notice has been given of an alleged violation. Pittsburah-Des Moines Steel Comoany, ALJ-78-3, 8 NRC 649, 653 (1978). Ihe Commission established detailed procedures and consi-derations to be undertaken in the assessment of civil}}