ML20247Q603

Advises That NRC Ofc of General Counsel Has Never in Past or in Future,Advised Board,Appeal Board or Commission to Disregard Mandatory Procedural Rules as Matter of Convenience in Order to Conserve Resources

ML20247Q603
Person / Time
Site:	Seabrook
Issue date:	07/21/1989
From:	Scinto J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Moore T, Rosenthal A, Wilber H NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#389-8955 LBP-89-10, OL, NUDOCS 8908070207
Download: ML20247Q603 (6)

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July 21, 1989 1 Alan S. Rosenthal, Chairman Thomas S. Moore Administrative Judge - Administrative Judge Atomic Safety and Licensing Appeal Atomic Safety and Licensing A ppeal Board Board-U.S. Nuclear Regulatory Commission U.S. N uclear Reg ulatory Commission Washington, D C 20555 Washington, D C 20555 Howard A. Wilber.

Administrative Judge i Atomic Safety and Licensing Appeal Board U.S.. Nuclear Regulatory . Commission Washington, D C 20555 In the Matter of '

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, ET AL.

(Seabrook Station, Units I and 2)

Docket Nos. 50-443, 50-444 Off-Site Emergency Planning - O b

Dear Administrative Judges:

During the oral argument held on July 12, 1989 in the proceeding captioned above you requested that "a letter or memorandum under the signature of the senior official of the so-called Separated Staff" be submitted to you addressing "the question of the Staff's responsibility to Worce the Rules of Practice of this Comission." Tr. at 99 (July 12, 3 S39); see also Tr. at 19. As Deputy General Counsel for Hearings, Enforcement and Administration, I am the senior legal advisor to the NRC Staff with respect to adjudicatory matters.

At the outset I state unequivocally that the legal staff fully recognizes, and at all time attempts to discharge to the best of its ability, its responsibility to assure that the Comission's procedural as well. as substantive rules and the Comission's case law precedent are properly brought to the attention of the presiding adjudicatory body --

Licensing Boards, Appeal Boards or the Commission, as may be the case. To assure that staff legal positions comport with Comission rules and case

' law, all pleadings are subject to management review and there is careful coordination concerning specific as well as overall legal approach among trial counsel and senior legal management. That is not to say that 8908070207 890721 PDR ADDCK 05000443 G PDR y[

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hindsight '-- or the insights provided by review .of our positions by the presiding: adjudicatory body -- does not sometimes leave us with a

' recognition that we could have better articulated our position. This seems

.to be the. case in this instance. Although our letter of July 7, 1989 (Mr.

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Berry signed the letter but it was approved by senior legal management) is a reasonable, although very brief, summary of our position, it does not

. fully explicate the legal rationale which underlies the change in position. linfortunately, the way in which the matter arose in the July 12, 1989 oral argument. and the misperception. of our motives, left ~the transcript of the oral argument with a limited explanation of our position.

I am glad to have the opportunity .to more fully explain.  !

l The Appeal Board requested that I address three' sentences in our July 1 7,1989 letter. (Tr.99-100)

The First' Sentence-(Relating to Not Retreating from Our Prior legal Arguments) and the Third Sentence (Relating to the Public Interest to be .

Served by a Decision on the Merits)

The arguments set forth in our Motion to Strike are (1) that the Interveners' appeal does not satisfy the standards of the Commission's regulations relating to appeal as a matter of right; (2) that Interveners' appeal does not satisfy the case law precedent for appellate review as a matter of discretion. Our July 7, 1989 letter and our argument do not modify our position that the appeal does not satisfy 10 CFR 2.714(a) or 10 CFR 2.762 and that LBP-89-10 is not appealable as a matter of right. The

' position reflected in our letter and our argument do not " retreat from",

-but does substanticily expand on the-second point that Interveners' appeal does not satisfy the standards for discretionary review. Our April 17, 1989 Motion to Striko deals only with the usual standards applied in determining whether to grant discretionary review --

(1) threatens immediate and irreparable harm, or (2) affects the basic structure of the

- proceeding in a pervasive and unusual manner. We do not retreat from our assertion that Intervenor's appeal does not meet these standards. However, our letter of July 7, 1989 did not explicate our rationale -- that the Appeal Board's discretion does not appear to be limited by these two standards as a hard and fast mandatory limitation on the Appeal Board's utbority.

l In Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,1191-92 (1977), the leading case on the Appeal Boards exercise of its discretionary authority to review

.non-final orders, the Appeal Roard, in the context of a Licensing Board referral, succinctly set out why it would not ordinarily exercise that authority and instances where it would exercise that authority. It stated:

We have now decided to decline the referral, as we have done in  !

other cases. The reasons why we must do so are easy to understand. Our present workload permits us to take only the most pressing questions for the interlocutory review. For this reason, we have of late often denied requests from the parties i

w that we direct certification of questions they believed important. We likewise cannot accept referral from the Licensing Board without ourselves evaluating the need for prompt appellate review.

Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later . appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner. [ Footnotes omittedj Thus, while the Appeal Board indicated that it has jurisdiction to consider interlocutory matters under its certification authority, it also indicated that authority would be sparingly exercised because of the Appeal Board's limited resources. Further, in stating that "Almost without exception in recent times" Appeal Boards had limited their review to two classes of cases, the Staff understands the Appeal Board to have left open the possibility that there could be other instances where it might exercise its discretion and consider other interlocutory orders. See also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

ALAB-791, 20 NRC 1579,1583 (1984) (inoicating that important interlocutory issues requiring prompt resolution may be considered by way of cirected certification); Duke Pos.er Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-687, 16 NRC 460, 464-66T1982), modified on other grounds, CLI-83-19, 17 NRC 1041 (1983) (acceptir,g certification of significant generic questions requiring prompt resolution under the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 456 (1981), which do not meet the strict standard for the review of a interlocutory orders in the Marble Hill case); Consumers Power Co. (Midland Power Co., Units 1 and 2), ALAB-634, 13 NRC 96, 99 (1981), (Appeal Board review of an interlocutory Licensing Board order by way of " certification" or referral " turns on whether a failure to address the issue would seriously harm the public interest, result in unusual delay or expense, or effect the basic structure of the proceeding in some persuasive or unusual l way.") l l'

There is nothing in the Commission's Rules of Practice, 10 CFR Part 2 that appears to limit the Appeal Board's authority to consider interlocutory review of a Licensing Board's order by way of certification i under 10 CFR 2.718(i) to specified standards. Thus, neither Commission i regulations nor case law precedent appear to prohibit the Appeal Board from I l

considering an interlocutory matter under 10 CFR 2.718(1) in an appropriate I l case, or restrict such review only to matters (1) involving the threat of i

immediate and irreparable harm, or (2) affecting the basic structure of the l proceeding in a pervasive and unusual manner. But, precedent makes it 1 clear that unless the situation satisfies' one of those tests, such review will not ordinarily be granted.

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Initially. we saw :no circumstances warranting - the application of a different ' standard. - However, in preparing' for oral argument the legal

' staff ' perceived public' interest factors that may well warrant the extraordinary procedure' of discretionary review -in this case despite the  ;

fact that' the appeal does' not satisfy the two traditional tests for h discretionary review. These factots were:

- Fi rst, from a public interest perspective the issue of. whether 1 the financial qualification regulations should be waived to allow I

. litigation of those issues would best be decided now when ,

possible further hearings would have less of an impact on this long protracted proceeding, than waiting until all other issues are decided by the Licensing Board and addressing them again,  ;

most likely in an expedited fashion in . connection with stay >

motions.

Second W the ' time of oral argument, the parties would not only. l have briefed the issue concerning, waiver of the financial l

. qualification rules, but the Appeal Board and the parties would 3 have expended resources in fully preparing for oral acgument, and 1 the travelling parties (the Appellants and Intervecors) would have expended travel funds, so that there would be very little, if any, resource savings for anyone.

- Third, possible waiver of the financial qualifications issue is more allied to the safety issues which have already concluded and other financial qualification issues which have already been decided by the Commission, than to the still pending emergency planning issues.

Fourth, these separate issues involving a waiver of the financial qualification issues were essentially legal in nature and could be decided on the existing record.

Taken in the aggregate, these factors led the Staff to conclude that the public interest in the efficient conduct of licensing proceedings would be ' served by withdrawing its objection that the Appeal Board consider the

..,m W 69-10, as a matter of its discretionary authority to review interlocutory matters. I recognize that the same or similar arguments could have been made earlier.

The Staff then determined that as c matter of professional responsibility, it should apprise the Appeal Board as well as the Applicants and Interveners of the decision reached that day by the Staff not to object to the Appeal Board's review of the Licensing Board's decision on the merits, and the July 7,1989 letter was immediately sent to the Appeal Board, with copies sent by facsimile to counsel for interveners and the Massachusetts Attcrney General. See Letter to Appeal Board from Gregory Alan Berry, Esq. (July 7, 1989). This letter was reviewed and approved by the Assistant General Counsel for Hearings and Enforcement before it was sent.

In hindsight, it appears that tne Appeal Board's misunderstanding of the Staff's motives would not exist had the Staff taken the time to draft a more comprehensive statement that would have left no doubt of the Staff's motivation and intentions. At the time, however, the Staff was of the view that the paramount consideration was to communicate its decision to the  ;

Appeal Board and the parties so that th.y would have the maximum possible i time to take that information into account ir. their preparations for the oral argument.

The Second Sentence (Relating The Resources the Staff Sought to Conserve) i The transcript reflects a strong question of staff motive in connection with the timing of its April 17, 1989 Motion to Strike. Let me assure you that the legal staff does not view Comission proceedings as "a game," and does not have seek to cause the interveners to expend unnecessary resources while conserving the resources of -the Staff.

Tr.18-19. As set out at p.5 (and the footnote) of the April 28, 1989, "NRC Staff Memorandum In Response to Appeal Board Order of April 24, 1989," the timing of the Staff's motion to dismiss the appeal was not motivated by any desire to gain en unfair advantage, but was caused by other work involving both the Seabrook proceeding which included responses to five appellate filings, preparation for two sets of hearings and review of the financial qualification information submitted pursuant to CLI-88-10, and other tasks in the office.

The July 7,1989 letter indicates that the Motion to Strike was filed in an effort to conserve resources for all parties, but the Appeal Board j pointed out that the Motion was not filed in time to save substantial i appeal resources for Interveners, had the motion succeeded. On receipt of i the Notice of Appeal Mr. Berry very promptly began work on the Motion to i Strike -in a desire to save resources for all parties. However, as J discussed above, we have a process for management review and discussion of l all pleadings. As a result o' this process, due in the main to my lack of j familiarity with the specific background of the decision involved and due I to problems associated with my availability, Mr. Reis' schedule and Mr. .

Berry's schedule, it was some time before Mr. Berry could fully acquaint me I with the background for the proposed motion. Nonetheless, even on April 17, 1989 it was believed that filing such a notion could be a benefit not i only to the staff but also to other parties, if the staff had successfully i convinced the Appeal Board and it had ruled early on the staff's motion.

The potential resource savings included staff response to Intervenor's I appeal and preparation for oral argument; similar resource savings and i travel expense savings for Applicants; preparation for oral argument and l travel expense savings for Interveners; and preparation by the Appeal Board I for argument on the full range of issue on the merits. Although a delay i had occurred in completing the Motion to Strike, there was a discussion l among staff counsel including senior legal management and we concluded that the Appeal Board and the other parties would be better served by filing the motion instead of waiting another six weeks and ircluding the argument in the staff reply. While staff counsel's concern was primarily for NRC

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resources, . the ' Motion was not filed with any intent to gain an unfair

.' advantage over. Interveners. .{

In ' closing, I would like to . reiterate that this office has not in the

past, or' in this case, and will- not in .the future, advise a licensing board. or the Appeal Board, or- the Comission to disregard mandatory  ;

. procedural rules as a matter ' of convenience to the Staff in order to '

conserve -Staff resources. I know that I speak 'for all the members of my t staff when I say that this office is firmly committed to preserving the  ;

integrity .of all .Comission regulations, including the Rule,s of Practice.

i' ncerely, W

Jo h F. Scinto Dp 'y General Counsel For Hearings, Enforcement ,

4Wd Administration cc: Parties to the Appeal l

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