ML20058A510

Partially Withheld Info Secy That Informs Commission of Appeal Board Decision

ML20058A510
Person / Time
Site:	Susquehanna
Issue date:	07/15/1981
From:	Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
Shared Package
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References
FOIA-92-436, FOIA-93-436, TASK-AII, TASK-SE SECY-81-417, NUDOCS 8110290162
Download: ML20058A510 (8)

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July 15,1981 3

.,i SECY-81-417

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ADJUDICATORY ISSUE (Information)

For:

The Comission From:

James A. Fitzgerald Assistant General Counsel

Subject:

REVIEW 0F ALAB-641 (Pennsylvania Power & Light Co.)

Facility:

Susquehanna Steam Electric Station, Units 1 and 2

Purpose:

To inform the Comission of an Appeal Board decision which rejects directed certification of a Licensing Board ruling denying sumary disposition of a contention in the Susquehanna OL proceedin been filed. L. No petitions for review have lln our opinion, g y,,f Review Time Expires:

July 27, 1981 Discussion:

On November 6, 1980 applicants Pennsylvania Power and Light Company and Allegheny Electric

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Contact:

John a. McDonagh, GC X-43224 Information in this.te:ctd was deleted B110290162 930412 in acccidance with the f Edo;n of in!crmah,on PDR FOIA CILINSK92-436 PDR gr.t.exem"I!005 FOIA-(0 ad.

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2 Cooperative, Inc. moved the Licensing Board for summary disposition of a portion of a contention which alleged that the health effects of chlorine discharged into the Susquehanna River from the Susquehanna plant had not been adequately assessed. 2/

In the summary disposition motion, applicants asserted that the sponsor of the contention, intervenor Citizens Against Nuclear Dangers (CAND), had limited the contention's scope through its discovery responses. 3/ In those responses CAND indicated that heaTth effects of chlorine had been improperly assessed because applicants would use more chlorine than stated in the application.

Two reasons for this predicted excess usage were given:

(a) Purification of river water polluted by acid mine drainage from anthracite coal mines; and 2/

The chlorine would be used by the facility to arrest the growth of biofouling organisms on equipment surfaces and to disinfect the potable water supply.

SI CAND's contention, as admitted by the Licensing Board read as follows:

The residual risks of low-level radiation which will result from the release from the facility of radionuclides, and particularly from the release of cesium-137 and cobalt-60, into the Susquehanna River, and the health effects of chlorine discharged into the river, have not been, but must be, adequately assessed and factored into the NEPA cost-benefit balance before the plant is allowed to go into operation.

Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2), LBP-79-6, 9 NRC 291, 301 (1979).

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I (b) Purification of river water polluted by chemicals entering the Susquehanna through the-Butler Mine Waste Tunnel.

On December 2,1980, before the Licensing Board ruled on. the. sumary disposition motion, the staff received a CAND filing alleging that CEQ would soon' publish studies showing relationships between cancer rates and-chlorinated compounds in drinking water. The-CAND~ motion also alleged that an ethanol plant i

to be built' upstream of the Susquehanna facility would discharge liquid organic' wastes into the river, thereby necessitating increased chlorine use at the nuclear facility. No affidavits accompanied the CAND motion.

On March 16, 1981 the Licensing Board granted in part and denied in part applicants' motion for sumary disposition.

Relying on the applicants' affidavits, the Licensing Board concluded that neither acid mine drainage nor toxic chemical pollutants would increase chlorine use at the Susquehanna facility.

However, the Board decided not to preclude adjudication of the chlorine issue to the extent that CAND's putative CEQ study 4/ might include health effects relevant to the Susquehanna facility and to the extent that the parties had not addressed the need for additional chlorination which might be required by organic waste discharges from the ethanol plant referred to by CAND.

The staff then sought directed certification of the partial denial pursuant to the discretionary interlocutory review authority O

In subsequent filings no party has provided further information concerning the status of the ethanol plant.

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lodged in the App)eal Board under 10 C.F.R. 6 2.718(1) (1980. The staff argued that i

interlocutory review was appropriate for two reasons.

First, interlocutory review was required to prevent the delay and expense which would result from litigation of the chlorine

' discharge issue.

Trial of the issue, the staff claimed, would force them to prepare wasteful..

expensive and time-consuming predictions about remote and speculative matters not properly l

before the Licensing Board.

Second, the staff argued that interlocutory review was required because the Licensing Board's ruling affected the basic structure of the proceeding in a pervasive and unusual manner.

In the staff's view, the Licensing Board made extra-record " findings of. fact" by relying on CAND's undocumented assertion about the CEQ study and the possibility of ethanol plant discharges as reasons for not disposing i

of the' chlorination issue prior to the '

evidentiary hearing. The staff argued that findings of fact based on non-evidentiary and l

non-record material were contrary to the -

1 Administrative Procedure Act and.Comission

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regulations. Therefore, in the staff's view, such findings pervasively affected the basic structure of the Licensing Board proceeding.

In ALAB-641 the Appeal Board denied the staff's motion seeking directed certification of the Licensing Board's ruling denying applicants' motion for sumary disposition.

In denying directed certification the Appeal Board reiterated the standard required for discretionary review under 10 C.F.R.

i 2.718(i):

The exercise of jurisdiction under section 2.718(i) is reserved for these important Licensing Board rulings which, l

5 absent innediate appellate review, threaten a party with severe irreparable harm or pervasively affect the basic structure of the proceeding.

Memorandum and Order at 2.

The Appeal Board concluded that the staff's a

asserted injuries fell short of this standard.

The Board reasoned that the injuries asserted did not distinguish the case from any other in which it is alleged that summary disposition was erroneously withheld. The Board acknowledged that the Licensing Board's denial would result in the investment of tire and effort that litigation inevitably entails.

However, the Board stated that the same is true whenever summary disposition is denied and an issue goes to hearing.

Similarly, the Board reasoned that the possibility that the Licensing Board may have incorrectly expanded the issues to be tried failed to distinguish this case from any other erroneous summary disposition denial.

The Appeal Board noted that adoption of the staff's position would significantly alter the standard for directed certification.

In situations involving denials of summary disposition motions, the standard would be reduced to a simple determination of whether the Licensing Board erred.

In light of the Commission's explicit policy discouraging interlocutory review, the Board concluded such a loosening of the standard was impermissible.

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Although the Appeal Board's finding that the standards for interlocutory review had not been met was sufficient to dispose of the motion for directed certification, Chairman Salzman in a concurring opinion added remarks which bear on the merits of the Licensing Board's denial of sumary disposition on the chlorine issue.

He expressed concern as to whether the staff's and applicant's pleadings reflected " misconceptions about the operation of the sumary disposition rule and the Licensing Board's prerogative to explore potential safety issues not placed in controversy by the parties." Mr. Salzman cited authority to the effect that a Licensing Board may deny a motion for sumary disposition, even though the movant may have filed affidavits technically sufficient to support the motion and no opposing affidavits have been filed, if the Board in its sound discretion believes further evidentiary development is needed.

He noted that a Licensing Board may at times have an obligation to explore issues not placed in fonnal controversy by the parties, but which come to the Board's attention during the proceeding.

In the present case, Mr. Salzman noted, the Licensing Board had perceived a possibility that some of the potential effects of chlorine discharge were being overlooked and had simply called for further exploration of the question.

In his view, the Licensing Board should not be precluded from considering a safety issue it deems significant simply because of the manner in which the issue comes before the tribunal

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7 as, for example, in CAND's arguably inadequate response to the applicants' motion for summary i

disposition. Mr. Salzman noted:

An inadequate response to a summary disposition motion jeopardizes the j

respondents' right to explore an issue, not the Licensing Board's.

(Slipopinion

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Recocinendation:

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James A. Fitzgerald Assistant General Counsel

Attachment:

ALAB-641 DISTRIBUTION:

Comissioners Comission Staff Offices Secretariat j

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UNITED STATES OF AMER 1-s 8[8kg NUCLEAR REGULATORY COMMISSION gI Jg gE.

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ATOMIC SAFETY AND LICENSING APPEAL BOARD pa e

Administrative Judges:

DOCKETED Richard S. Salzman, Chairman 9-USNPC Dr. John H. Buck f~'

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Themas S. Moore Q

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C;gtr.;&St.ntict N

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PENNSYLVANIA POWER & LIGHT COMPANY and

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Docket Nos. 50-387 ALLEGHINY ELECTRIC COOPERATIVE, INC.

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50-388

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(Suscuehanna Stea.= Electric Station,

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Units 1 and 2)

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Ms. Jessica H. Laverty for the Nuclear Regulatory Commission staff.

Messrs. Jay E. Silbere and Matias F.

Travieso-Diaz,

• Wa snin gto n, D. C., for the Pennsylvania Power &

Light Company et al., applicants.

MEMCPANDUM AND ORDER May 15, 1981 (ALA3-641) 1.

On March 16, 1981, the Licensing Board granted in part applicants' motions', each supported by the NRC staff, for su= mary disposition on Contentions 2 and 16.

The Board denied the mot. ion with respect to that portion of Contention 2 which deals with phlorine discharges from the Sus'quehanna nuclear facility.

LBP-81-8, 13 NRC (1981).

We now have before us the staff's April 14 motion, supported by the appli-cants, seeking directed certification of a part of the ruling g

denying summary dipposition.

Invocation of our discretionary' authority under 101CFR 52.713 (1) to review issues before the

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e 4:...t y end of the hearing is necessary because denial of partial su:mnary disposition is an interlocutory order from which an appeal is prosc. bed by the Rules of Practice.

10 CFR

52. 730 (f) ;

Louisiana Power and Light Company (Waterford Steam Electric Generating Station, Unit 3), AIAB-220, 8 AEC 93, 94 (1974);

Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit No. 1), ALAB-400, 5 NRC 1175, 1177 (1977).

2.

The exercise of jurisdiction under Section 2.718(i) is reserved for those important licensing board rulings which, absent immediate appellate review, threaten a party with i

f serious irreparable harm or pervasively affect the basic structure of the proceeding.

Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).

See Puget Sound Power and Light Company (Skagit Nuclear Power Project, l

Units 1 and 2), ALAB-572, 10 NRC 693, 695 n. 5 (1979), and cases there cited.

In this instance that standard is not met.

The staff argues that certification is appropriate be-cause the Licensing Board's ruling unwarrantedly expanded i

the scope of the chlorine issue and, as a consequence, both l

the staff and applicants must be prepared to litigate two i

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1 issues which they claim are not properly part of the in-1/

tervenor's original contentions.~~~

According to the staff, trial of these issues will force them into preparing waste-ful, expensie and time-consuming predictions about remote and speculative matters; their papers assert that this un-necessary expense ~and delay amounts to immediate and ir-reparable harm that cannot be alleviated by subsequent appeal.

In addition, the staff argues tbc.t in expanding the issues the Board below made extra-record " findings of fact" based solely on the unsworn and unsubstantiated as-sertions of intervenors.

In the staff's view, the Board's action is in the teeth of the commission's regulations and the Administrative Procedure Act and therefore pervasively-affects the basic structure of the proceeding.

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In the context of the denial of a motion for partial summary disposition, the staff's arguments do little more than state the apparent.

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the Licensing Board's ruling will result in the trial 1/

As we understand its motion, the staff does not contest the denial of summary disposition with respect to part of issue 2(b) and all of issue (c) identified in Part D (the " order" portion) of the Licensing Board's March 16, 1981 ruling.

LBP-81-8, supra, 13 NRC at (slip opinion at 20).

The applicants, on the other hand, appear to desire certification directed to all three issues, even though they only filed a response su Ik$

the staff's motion rather than their own motion. pporting

of issues with the concomitant investment of time and money such litigation entails.

Equally obvious is the fact that once the hearing is held the time and money expended in the trial of an issue cannot be recouped by any appellate action.

But the same is true any time summary disposition of an issue is denied and a litigant must go to hearing.

The fact that the ruling below may have erroneously expanded the issues to be tried or done so on the basis of unsworn alle-gations does little to distinguish this case from any other where it is alleged that summary disposition was erroneously 2/

withheld.-~

Indeed, had the Licensing Board raised the challenged issue on its own motion, we think it clear that directed certification would not be appropriate.

We there-fore conclude that the staff's asserted injuries fall short of the standard for discretionary interlocutory review.

In reality, adoption of the staff's rationale would alter the standard for discretionary interlocutory review; certainly where a denial of summary disposition is involved it would be reduced to a simple determination whether the Licensing Board erre i 2/

For the same reason, applicants' argument that the ruling

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below will deter it from filing further summary dispo-sition motions in this proceeding (or deter parties in other proceedings from filing such motions) is unper-suasive.

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As we stated in Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-635,13 NRC (1981):

"It is scarcely necessary to expound at any length upon why a drastic alteration of existing practice to accom-modate that thesis would be intolerable -- as well as in derogation of the Commission's explicit policy disfavoring 3/

interlocutory review."~~

The petition is denied.

It is so ORDERED.

FOR THE APPEAL BOARD D.%&M CQJean BishopT i

Se6retary to the Appeal Board 3/

The staff and the applicants, of course, remain free to pursue other avenues of possible relief that remain open to them before the Licensing Board.

For example, they may ask for reconsideration of the ruling and press the fuller exposition of their positions made to us on the Board below.

We have no reason to be-lieve the Board below (or any party) wishes to conduct an unnecessary hearing -- if the staff's and applicants' characterization of the situation is correct.

Indeed, for that reason, the Licensing Board may wish to re-consider the issue itself on the basis of the staff's motion before us.

In addition, if the staff and appli-cants are convinced (as their papers suggest) that.the i

is issues on which summary disposition was denied raise matters so remote and speculative as to merit no con-sideration under the National Environmental Policy. Act, they may simply " stand pat" and seek vindication on appeal in the event the Licensing Board disagrees.

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1 Additional views of Mr. Salzman, concurring:

My colleagues' reasons for declining to grant certification are sound ones.

I am concerned, however, that the papers before us reflect misconceptions about the operation of the summary dis-position rule and the Licensing Board's prerogative to explore potential safety issues not placed in controversy by the parties.

On the first point, the summary disposition rule (10 CF.R 92.749) is the Commission counterpart of Rule 56 of the Federal Rules of Civil Procedure governing summary judgments; essentially the same standards govern both. b/

Consequently, even though a summary disposition motion may rest on affidavits technically sufficient to justify a decision in movant's favor, the absence of opposing affidavits does not mean that the relief sought must be forthcoming automatically.

The courts have explained that:

Althou'gh Rule 56 of the Federal Ecles of Civil Procedure states that summary judgment "shall" be rendered when the stated conditions are met, the rule is not mandatory in operation:

"a mo-tion for summary judgment is always addressed to the discretion of the court. "

Satisfying the basic requirements of the rule does not guaran-tee that the motion will be granted:

"Even in i

cases where the movant has technically discharged his burden, the trial court in the exercise of a sound discretion may decline to grant summary judgment. " 2]

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Cleveland Electric Illurinating Co. (Perry Plant, Units 1

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and 2), ALAB-443, 6 NRC 741, 753 (1977); Tennessee Valley Authority (Browns Ferry Plant, Units 1, 2 and 3), LBP-73-29, 6 AEC 682, 688 (1973).

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In re Franklin National Bank Sec. Litigation, 478 F. Supp.

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210, 223 (E.D. N. Y. 19 7 9 ) (citations omitted).

~7-In o th er wo rds, "the exercise of sound

. discretion may dictate that the motion should be denied, and the case fully developed. " b/

This principle is possibly more important in Commission than in judicial practice, which brings up the second point.

The NRC functions as the arbiter of important safety and environmental questions.

That role "does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it.

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For this reason, a licensing board may if need be explore issues not placed in controversy by the parties but which come to its attention during the course of the proceeding (or are suggested informally in unsworn limited appearance statements 5/).

As the Commission stressed in Indian Point:

A Licensing Board, typically comprised of two technical experts and a lawyer, is this agency's primary f act-finding tribunal in the hearing process.

These expert tribunals are entrusted with critical tasks in the licensing process.

To tie a Board 's hands, when it sees an issue that needs to be explored, would be utterly inconsistent with its stature and re-sponsibility._6 /

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McLain v. Meier, 612 F.2d 349, 356 (Sth Cir.19 79) (emphasis in original).

Accord, Roberts v. Browning, 610 F.2d 528 (8th Cir. 13'"I ' Browns Ferry, supra, LBPO73-29, 6 AEC at 688.

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Perry, supra, ALAB-4 4 3, 6 NRC at 752, quoting Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2nd Cir.

1T63).

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See 10 CFR Part 2, App. A, SV(b) (4).

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Consolidated Edison Co. of New York (Indian Point, Unit 3),

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CLI-74-28, 8 AEC 7, B '(19 7 4).

This decision is now codified

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10 CFR 52.760a.

.cm %r In passing on applicants' su= mary disposition motions, the Board below evinced apprehensions about chlorine discharges from the Susquehanna plants resulting in unacceptable water pollution levels and has called for further sxploration of the question.

The Board's concerns may turn out to be misplaced or later shown to be insubstantial.

But it elevates form over substance to sug-gest that the Board is precluded from considering a safety issue that it apparently deems significant because of the way it came to light.

An inadequate response to a summary disposition motion jeopardizes the respondent's rights to explore an issue, not the Licensing Board's.

t The Board's misgivings are perhaps inartfully framed as

" findings."

But these are preliminary and obviously designed to alert the parties to the principal areas of its concern.

There are means short of a full trial by which the Board's fears can be alleviated by parties (assuming, of course, that they are correct about the true situation).

Applicants suggest one; there i e others. l/

If one is selected and employed to educate the card, it in turn will no doubt rule appropriately.

There is no reason to presume that the Licensing Bo,ard wishes to go through' the formalities or incur the expense of a hearing unnecessarily.

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See, e.c., Consumers Power Co. (Midland Plant), ALAB-235, 8 AEC 645, 646 (1974).

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